PRIGG V. PENNSYLVANIA, 41 U. S. 539 (1842) -- US Supreme Court Cases from Justia & Oyez

A writ of error to the Supreme Court of Pennsylvania, brought under the twenty-fifth section of the Judiciary Act of 1789, to revise the judgment of that Court on a case involving the construction of the Constitution and laws of the United States.

Edward Prigg, a citizen of the State of Maryland, was indicted for kidnapping in the Court of Oyer and Terminer of York County, Pennsylvania, for having forcibly taken and carried away from that county to the State of Maryland a negro woman named Margaret Morgan with the design and intention of her being held, sold, and disposed of as a slave for life, contrary to a statute of Pennsylvania passed on the twenty-sixth day of March, 1826. Edward Prigg pleaded not guilty, and the jury found a special verdict on which judgment was rendered for the Commonwealth of Pennsylvania. The case was removed to the Supreme Court of the State, and the judgment of the Court of Oyer and Terminer was pro forma affirmed, and the case was carried to the Supreme Court of the United States, the constitutionality of the law under which the indictment was found being denied by the counsel of the State of Maryland, which State had undertaken the defense for Edward Prigg and prosecuted the writ of error. The cause was brought to the Supreme Court, with the sanction of both the States of Maryland and Pennsylvania, with a view to have the questions in the case settled. Margaret Morgan was the slave for life, under the laws of Maryland, of Margaret Ashmore, a citizen of that State. In 1832, she escaped and fled from the State into Pennsylvania. Edward Prigg, having been duly appointed the agent and attorney of Margaret Ashmore and having obtained a warrant from a justice of the peace of York County, caused Margaret Morgan to be taken, as a fugitive from labor, by a constable of the State of Pennsylvania, before the magistrate, who refused to take cognizance of the case, and thereupon Edward Prigg carried her and her children into Maryland and delivered them to Margaret Ashmore. The children were born in Pennsylvania, one of them more than a year after Margaret Morgan had fled and escaped from Maryland.

By the first section of the act of Assembly of Pennsylvania of 25th March, 1826, it is provided that if any person shall, by force and violence, take and carry away, or shall by fraud or false pretence attempt to take, carry away, or seduce any negro or mulatto from any part of the Commonwealth, with a design or intention of selling and disposing of, or keeping or detaining, such negro or mulatto as a slave or servant for life, or for any other term whatsoever, such person, and all persons aiding and abetting him, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit and pay a sum not less than five hundred nor more than three thousand dollars, and shall be sentenced to undergo a servitude for any term or terms of years not less than seven years nor exceeding twenty-one years, and shall be confined and kept at hard labor, &c. Other provisions are contained in the act, and it was passed in 1826, as declared in its title, to aid in carrying into effect the Constitution and laws of the United States relating to fugitives from labor, and, on the application to the legislature by commissioners from the State of Maryland,

Page 41 U. S. 540

with a view to meet the supposed wishes of the State of Maryland on the subject of fugitive slaves, but it had failed to produce the good effects intended.

By the Court:

It will probably be found, when we look to the character of the Constitution of the United States itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as to the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the light and aids of contemporary history, and to give to the words of each just such operation, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.

It is historically well known that the object of the clause in the Constitution of the United States relating to persons owing service and labor in one state escaping into other states was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves as property in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevailing in the non-slaveholding States by preventing them from intermeddling with or obstructing or abolishing the rights of the owners of slaves.

By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves within its territorial dominions when it is opposed to its own policy and institutions in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation founded upon and limited to the range of the territorial laws.

The clause of the Constitution of the United States relating to fugitives from labor manifestly contemplates the existence of a positive unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. Any state law or regulation which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his service or labor operates pro tanto a discharge of the slave therefrom. The question can never be how much he is discharged from, but whether he is discharged from any by the natural or necessary operation of the state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive right.

The owner of a fugitive slave has the same right to seize and take him in a State to which he has escaped or fled that he had in the State from which he escaped, and it is well known that this right to seizure or recapture is universally acknowledged in all the slaveholding States. The Court have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of the slave is clothed with

Page 41 U. S. 541

the authority in every State of the Union to seize and recapture his slave wherever he can do it without any breach of the peace or illegal violence. In this sense and to this extent, this clause in the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

The Constitution does not stop at a mere annunciation of the rights of the owner to seize his absconding or fugitive slave in the State to which he may have fled. If it had done so, it would have left the owner of the slave, in many cases, utterly without any adequate redress.

The Constitution declares that the fugitive slave shall be delivered up on claim of the party to whom service or labor may be due. It is exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some further remedial redress than that which might be administered at the hand of the owner himself. "A claim" is to be made.

"A claim," in a just juridical sense, is a demand of some matter as of right, made by one person upon another to do or to forbear to do some act or thing as a matter of duty.

It cannot well be doubted that the Constitution requires the delivery of the fugitive on the claim of the master, and the natural inference certainly is that the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be that, where the end is required, the means are given, and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted.

The clause relating to fugitive slaves is found in the national Constitution, and not in that of any State. It might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, executive, or judiciary, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution.

A claim to a fugitive slave is a controversy in a case "arising under the Constitution of the United States" under the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to the right, and, if so, then it may prescribe the mode and extent to which it shall be applied, and how and under what circumstances the proceedings shall afford a complete protection and guaranty of the right.

The provisions of the sections of the act of Congress of 12th February, 1793, on the subject of fugitive slaves, as well as relative to fugitives from justice, cover both the subjects not because they exhaust the remedies which may be applied by Congress to enforce the rights if the provisions shall be found, in practice, not to attain the objects of the Constitution, but because they point out all the modes of attaining those objects which Congress have as yet deemed expedient and proper. If this is so, it would seem upon just principles of construction that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it. For, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it is a given manner,

Page 41 U. S. 542

and in a certain form, it cannot be that the state legislatures have a right to interfere. This doctrine was fully recognized in the case of @ 18 U. S. 21-22. Where Congress have exclusive power over a subject, it is not competent for state legislation to add to the provisions of Congress on that subject.

Congress have, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given and duties expressly enjoined by the Constitution. The end being required, it has been deemed a just and necessary implication that the means to accomplish it are given also, or, in other words, that the power flows as a necessary means to accomplish the ends.

The constitutionality of the act of Congress relating to fugitives from labor has been affirmed by the adjudications of the state tribunals, and by those of the Courts of the United States. If the question of the constitutionality of the law were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognitions would, in the judgment of the Court, entitle the question to be considered at rest. Congress, the Executive, and the Judiciary have, upon various occasions, acted upon this as a sound and reasonable doctrine. Cited, Stuart v. Laird, 1 Cranch 299; Martin v. Hunter's Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264.

The provisions of the act of 12th February, 1793, relative to fugitive slaves is clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority on state magistrates, is free from reasonable doubt or difficulty. As to the authority so conferred on state magistrates, while a difference of opinion exists, and may exist on this point in different States, whether state magistrates are bound to act under it, none is entertained by the Court that state magistrates may, if they choose, exercise the authority unless prohibited by state legislation.

The power of legislation in relation to fugitives from labor is exclusive in the National Legislature. Cited, @ 17 U. S. 193.

The right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever State of the Union they may be found is, under the Constitution, recognized as an absolute positive right and duty pervading the whole Union with an equal and supreme force uncontrolled and uncontrollable by state sovereignty or state legislation.

The right and duty are coextensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulations and control, through however many State he may pass with the fugitive slave in his possession in transitu to his domicile.

The Court are by no means to be understood in any manner whatever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision of the Constitution relating to fugitive slaves, which is exclusively derived from the Constitution and obtains its whole efficiency therefrom.

The Court entertain no doubt whatsoever that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and to remove them from their borders and otherwise to secure themselves against their depredations

Page 41 U. S. 543

and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course, and, in many cases, they may be promoted by the exercise of the police power. Such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave derived from the Constitution of the United States or with the remedies prescribed by Congress to aid and enforce the same.

The act of the Legislature of Pennsylvania upon which the indictment against Edward Prigg is founded is unconstitutional and void. It purports to punish as a public offense against the State the very act of seizing and removing a slave by his master which the Constitution of the United States was designed to justify and uphold.

The defendant in error, Edward Prigg, with Nathan S. Bemis, Jacob Forward, and Stephen Lewis, Jr., were indicted by the grand jury of York county, Pennsylvania, for that, on the first day of April 1837, upon a certain negro woman, named Margaret Morgan, with force and violence, they made an assault, and with force and violence, feloniously did take and carry her away from the County of York, within the Commonwealth of Pennsylvania, to the State of Maryland, with a design and intention there to sell and dispose of the said Margaret Morgan, as and for a slave and servant for life.

Edward Prigg, one of the defendants, having been arraigned, pleaded not guilty.

The cause was tried before the court of quarter sessions of York county, on the 22d day of May 1839; and the jury found the following special verdict:

"That, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at the City of Philadelphia, on the first day of March, 1780, the following law was passed and enacted, to-wit,"

" An act for the gradual abolition of slavery:"

" 1. Sec. III. All persons, as well negroes and mulattoes, as others, who shall be born within this State shall not be deemed and considered as servants for life or slaves, and all servitude for life, or slavery of children, in consequence of slavery of their mothers, in the case of all children born within this State, from and after the passing of this act as aforesaid shall be and hereby is utterly taken away, extinguished and forever abolished."

" 2. Sec. IV. Provided always, that every negro and mulatto

Page 41 U. S. 544

child, born within this State, after the passing of this act as aforesaid (who would, in case this act had not been made, have been born a servant for years, or life, or a slave) shall be deemed to be, and shall be, by virtue of this act, the servant of such persons, or her or his assigns, who would, in such case, have been entitled to like relief, in case he or she shall be evilly treated by his or her master or mistress, and to like freedom dues and other privileges, as servants bound by indenture for four years are or may be entitled, unless the person to whom the service of any such child shall belong, shall abandon his or her claim to the same, in which case, the overseers of the poor of the city, or township or district, respectively, where such child shall be so abandoned shall, by indenture, bind out every child so abandoned as an apprentice for a time not exceeding the age hereinbefore limited for the service of such children."

" 3. Sec. V. Every person who is, or shall be, the owner of any negro or mulatto slave or servants for life, or till the age of thirty-one years, now within this State, or his lawful attorney, shall, on or before the first day of November next, deliver or cause to be delivered in writing to the clerk of the peace of the county, or to the clerk of the court of sessions of the City of Philadelphia, in which he or she shall respectively inhabit, the name and surname, and occupation or profession, of such owner, and the name of the county and township, district or ward wherein he or she resideth; and also the name and names of any such slave and slaves, and servant and servants for life, and till the age of thirty-one years, within this State, who shall be such on the said first day of November next, from all other persons; which particulars shall, by said clerk of the sessions and clerk of the said city court, be entered in books to be provided for that purpose by the said clerks; and no negro or mulatto now within this State shall, from and after the said first day of November, be deemed a slave or servant for life, or till the age of thirty-one years, unless his or her name shall be entered as aforesaid on such records, except such negro or mulatto slaves and servants as are hereinafter excepted; the said clerk to be entitled to a fee of two dollars for each slave or servant so entered as aforesaid, from the treasury of the county, to be allowed to him in his accounts."

" 4. Sec. VI. Provided always, that any person in whom the

Page 41 U. S. 545

ownership or right to the service of any negro or mulatto shall be vested at the passing of this act, other than such as are hereinbefore excepted, his or her heirs, executors, administrators and assigns, and all and every of them, severally, shall be liable to the overseers of the poor of the city, township or district to which any such negro or mulatto shall become chargeable, for such necessary expense, with costs of suit thereon, as such overseers may be put to, through the neglect of the owner, master or mistress of such negro or mulatto, notwithstanding the name and other descriptions of such negro or mulatto shall not be entered and recorded as aforesaid, unless his or her master or owner shall, before such slave or servant obtain his or her twenty-eighth year, execute and record in the proper county, a deed or instrument securing to such slave or servant his or her freedom."

" 6. Sec. VIII. In all cases wherein sentence of death shall be pronounced against a slave, the jury before whom he or she shall be tried shall appraise and declare the value of such slave, and in case such sentence be executed, the court shall make an order on the state treasurer, payable to the owner for the same, and for the costs of prosecution, but in case of remission or mitigation, for the costs only."

" 7. Sec. IX. The reward for taking up runaway and absconding negro and mulatto slaves and servants, and the penalties for enticing away, dealing with, or harboring, concealing or employing negro and mulatto slaves and servants, shall be the same, and shall be recovered in like manner, as in case of servants bound for four years."

" 8. Sec. X. No man or woman of any nation or color, except the negroes or mulattoes who shall be registered as aforesaid, shall at any time hereafter be deemed adjudged or holden within the territories of this Commonwealth as slaves or servants for life, but as free men and free women; except the domestic slaves attending upon delegates in Congress from the other American States, foreign ministers and consuls, and persons passing through or sojourning in this State, and not becoming resident therein, and seamen employed in ships not belonging to any inhabitant of this State, nor employed in any ship owned by any such inhabitant; provided, such domestic slaves shall not be alienated or sold to any inhabitant, nor (except in the case of members of Congress,

Page 41 U. S. 546

foreign ministers and consuls) retained in this State longer than six months."

" 9. Sec. XI. (Repealed 25th March, 1826.)"

" Sec. XII. And whereas, attempts may be made to evade this act by introducing into this State negroes and mulattoes bound by covenant to serve for long and unreasonable terms of years if the same be not prevented: Therefore --"

" 10. Sec. XIII. No covenant of personal servitude or apprenticeship whatsoever shall be valid or binding on a negro or mulatto for a longer time than seven years, unless such servant apprentice were at the commencement of such servitude or apprenticeship under the age of twenty-one years, in which case such negro or mulatto may be holden as a servant or apprentice, respectively, according to the covenant, as the case shall be, until he or she shall attain the age of twenty-eight years, but no longer."

" Sec. XIV. That this act, or anything herein contained, shall not give any relief or shelter to any absconding or runaway negro or mulatto slave or servant who has absconded himself, or shall abscond himself, from his or her owner, master or mistress residing in any other State or country, but such owner, master or mistress shall have like right and aid to demand, claim, and take away his slave or servant as he might have had in case this act had not been made, and that all negro and mulatto slaves now owned and heretofore resident in other States who have absconded themselves or been clandestinely carried away, or who may be employed abroad as seamen, and have not absconded or been brought back to their owners, masters, or mistresses before the passing of this act may, within five years, be registered as effectually as is ordered by this act concerning those who are not within this State, on producing such slave before any two justices of the peace, and satisfying the said justices, by due proof, of his former residence, absconding, running away, or absence of such slaves as aforesaid, who thereupon shall direct and order the said slaves to be entered on the record as aforesaid."

And the jurors further found, that, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at the City of Philadelphia, on the 29th day of March 1788, the

Page 41 U. S. 547

following law was passed and enacted,

"An act to explain and amend 'an act for the gradual abolition of slavery,'"

"Sec. I. For preventing many evils and abuses arising from ill-disposed persons availing themselves of certain defects in the act for the gradual abolition of slavery, passed on the first day of March, in the year of our Lord 1780, be it enacted:"

"Sec. II. The exception contained in the tenth section of the act of the first of March, 1780, relative to domestic slaves, attending upon persons passing through or sojourning in this State and not becoming resident therein, shall not be deemed or taken to extend to the slaves of such persons as are inhabitants of, or resident in, this State, or who shall come here, with an intention to settle and reside; but all and every slave or slaves who shall be brought into this State by persons inhabiting or residing therein or intending to inhabit or reside therein shall be immediately considered, deemed, and taken to be free to all intents and purposes."

"Sec. III. No negro or mulatto slave, or servant for term of years (except as in the last exception of the tenth section of the said act, is excepted), shall be removed out of this State, with the design and intention that the place of abode or residence of such slave or servant shall be thereby altered or changed, or with the design and intention that such slave or servant, if a female and pregnant, shall be detained and kept out of this State till her delivery of the child of which she is or shall be pregnant, or with the design and intention that such slave or servant shall be brought again into this State, after the expiration of six months from the time of such slave or servant having been first brought into this State, without his or her consent, if of full age, testified upon a private examination, before two justices of the peace of the city or county in which he or she shall reside, or being under the age of twenty-one years, without his or her consent, testified in manner aforesaid, and also without the consent of his or her parents, if any such there be, to be testified in like manner aforesaid, whereof the said justices, or one of them, shall make a record, and deliver to the said slave or servant a copy thereof, containing the name, age, condition and the place of abode of such slave or servant, the reason of such removal, and the place to which he

Page 41 U. S. 548

or she is about to go; and if any person or persons whatsoever shall sell or dispose of any such slave or servant, to any person out of this State, or shall send or carry, or cause to be sent or carried, any such slave or servant, out of this State for any of the purposes aforesaid, whereby such slave or servant would lose those benefits and privileges which by the laws of this State are secured to him or her, and shall not have obtained all such consent as by this act is required, testified in the manner before mentioned, every such person and persons, his and their aiders and abettors, shall severally forfeit and pay, for every such offense, the sum of seventy-five pounds, to be recovered in any court of record, by an action of debt, bill, plaint or information at the suit of any person who will sue for the same; one moiety thereof, when recovered, for the use of the plaintiff, the other moiety for the use of the poor of the city, township or place from which such slave or servant shall be taken and removed."

"Sec. IV. All persons who now are, or hereafter shall be, possessed of any child or children, born after the first day of March, 1780, who would, by the said act, be liable to serve till the age of twenty-eight years, shall on or before the first day of April, 1789, or within six months next after the birth of any such child, deliver or cause to be delivered, in writing, to the clerk of the peace of the county, or the clerk of the court of record of the City of Philadelphia, in which they shall respectively inhabit, the name, surname, and occupation or profession of such possessor, and of the county, township, district or ward in which they reside, and also the age (to the best of his or her knowledge), name and sex of every such child or children, under the pain and penalty of forfeiting and losing all right and title to every such child and children, and of him, her or them immediately becoming free; which said return or account in writing shall be verified by the oath or affirmation of the party, which the said clerks are hereby respectively authorized and required to administer, and the said clerks shall make and preserve records thereof, copies and extracts of which shall be good evidence in all courts of justice, when certified under their hands and seals of office; for which oath or affirmation, and entry or extract, the said clerks shall be respectively entitled to one shilling and six-pence, and no more,

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to be paid by him or her, who shall so as aforesaid make such entry, or demand the extract aforesaid."

"And whereas it has been represented to this House that vessels have been fitted out and equipped in this port for the iniquitous purpose of receiving and transporting the natives of Africa to places where they are held in bondage, and it is just and proper to discourage, as far as possible, such proceedings in future:"

"Sec. V. If any person or persons shall build, fit, equip, man or otherwise prepare any such ship or vessel within any port of this State, or shall cause any ship or other vessel to sail from any port of this State for the purpose of carrying on a trade or traffic in slaves to, from, or between Europe, Asia, Africa, or America, or any place or countries whatsoever, or of transporting slaves to or from one port or place to another in any part or parts of the world, such ship or vessel, her tackle, furniture, apparel, and other appurtenances shall be forfeited to the Commonwealth, and shall be liable to be seized and prosecuted by any officer of the customs or other person, by information in rem, in the supreme court or in the county court of common pleas for the county wherein such seizure shall be made, whereupon such proceedings shall be had, both unto and after judgment, as in and by the impost laws of this Commonwealth in case of seizure is directed. And moreover, all and every person and persons so building, fitting out, manning, equipping, or otherwise preparing or sending away any ship or vessel, knowing or intending that the same shall be employed in such trade or business contrary to the true intent and meaning of this act, or in any wise aiding or abetting therein, shall severally forfeit and pay the sum of one thousand pounds, one moiety thereof to the use of the Commonwealth and the other moiety thereof to the use of him or her who will sue for the same, by action, debt, bill, plaint, or information."

"And whereas, the practice of separating, which is too often exercised by the masters and mistresses of negro and mulatto slaves, or servants for term of years, in separating husbands and wives, and parents and children, requires to be checked so far as the same may be done without prejudice to such masters or mistresses:"

"Sec. VI. If any owner or possessor of any negro, mulatto slave or slaves, or servant or servants for term of years, shall, from and

Page 41 U. S. 550

after the first day of July next separate or remove, or cause to be separated or removed, a husband from his wife, or wife from her husband, a child from his or her parents, or a parent from a child, or any or either of the descriptions aforesaid, to a greater distance than ten miles, with the design and intention of changing the habitation or place of abode of such husband or wife, parent or child, unless such child shall be above the age of four years, without the consent of such slave or servant for life or years shall have been obtained and testified in the manner hereinbefore described, such person or persons shall severally forfeit and pay the sum of fifty pounds, with costs of suit, for every such offense, to be recovered by action of debt, bill, plaint, or information in the supreme court or in any court of common pleas at the suit of any person who will sue for the same, one moiety thereof, when recovered, for the use of the plaintiffs, the other moiety for the use of the poor of the city, township, or place from which said husband or wife, parent or child, shall have been taken and removed."

(Sec. VII. Repealed 27th March, 1820, and 25th March, 1826.)

And the jurors further found, that, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at Harrisburg, on the 25th day of March, 1826, the following law was passed,

"An act to give effect to the provisions of the Constitution of the United States relative to fugitives from labor, for the protection of free people of color, and prevent kidnapping."

"Sec. I. If any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this Commonwealth, to any other place or places whatsoever, out of this Commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this Commonwealth having competent jurisdiction, be deemed guilty of a felony, and shall forfeit and pay at the discretion of the court

Page 41 U. S. 551

passing the sentence, a sum not less than five hundred, nor more than one thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to this Commonwealth, and moreover shall be sentenced to undergo a servitude for any term or terms not less than seven years nor exceeding twenty-one years, and shall be confined and kept to hard labor, fed, and clothed in the manner as is directed by the penal laws of this Commonwealth for persons convicted of robbery."

"Sec. II. If any person or persons shall, hereafter, knowingly sell, transfer or assign, or shall, knowingly, purchase, take or transfer an assignment of any negro or mulatto for the purpose of fraudulently removing, exporting or carrying said negro or mulatto out of this State, with the design or intent, by fraud or false pretences, of making him or her a slave or servant for life, or for any term whatsoever, every person so offending shall be deemed guilty of a felony, and on conviction thereof, shall forfeit and pay a fine of not less than five hundred dollars nor more than two thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to the Commonwealth, and moreover shall be sentenced, at the discretion of the court, to undergo a servitude for any term or time not less than seven years, nor exceeding twenty-one years, and shall be confined, kept to hard labor, fed and clothed in the same manner as is directed by the penal laws of this Commonwealth for persons convicted of robbery."

"Sec. III. When a person held to labor or servitude in any of the United States, or in either of the territories thereof, under the laws thereof, shall escape into this Commonwealth, the person to whom such labor or service is due, his or her duly authorized agent or attorney, constituted in writing, is hereby authorized to apply to any judge, justice of the peace or alderman, who, on such application, supported by the oath or affirmation of such claimant, or authorized agent or attorney as aforesaid, that the said fugitive hath escaped from his or her service, or from the service of the person for whom he is duly constituted agent or attorney, shall issue his warrant, under his hand and seal, and directed to the sheriff, or any constable of the proper city or county, authorizing and empowering said sheriff or constable, to

Page 41 U. S. 552

arrest and seize the said fugitive, who shall be named in said warrant, and to bring said fugitive before a judge of the proper county, which said warrant shall be in the form or to the following effect:"

"State of Pennsylvania, _____ county, ss."

" The Commonwealth of Pennsylvania, to the sheriff or any constable of _____ county, greeting: Whereas, it appears by the oath, or solemn affirmation, of _____ _____, that _____ _____, was held to labor or service to _____ _____, of _____ county, in the State of _____, and the said _____ _____ hath escaped from the labor and service of the said _____ _____: You are therefore commanded, to arrest and seize the body of the said _____ _____, if he be found in your county, and bring him forthwith before the person issuing the warrant, if a judge (or if a justice of the peace or alderman) before a judge of the court of common pleas, or of the district court, as the case may be, of your proper county, or recorder of a city, so that the truth of the matter may be inquired into, and the said _____ _____ be dealt with as the Constitution of the United States, and the laws of this Commonwealth direct."

" Witness our said judge (or alderman, or justice, as the case may be) at this ___ day of _____, in the year of our Lord one thousand eight hundred and _____."

"By virtue of such warrant the person named therein may be arrested by the proper sheriff or constable to whom the same shall be delivered, within the proper city or county."

"Sec. IV. No judge, justice of the peace or alderman shall issue a warrant on the application of any agent or attorney, as provided in the said third section, unless the said agent or attorney shall, in addition to his own oath or affirmation, produce the affidavit of the claimant of the fugitive, taken before and certified by a justice of the peace or other magistrate authorized to administer oaths, in the State or territory in which such claimant shall reside, and accompanied by the certificate of the authority of such justice or other magistrate, to administer oaths, signed by the clerk or prothonotary, and authenticated by the seal of a court of record, in such State or territory; which affidavit shall state the

Page 41 U. S. 553

said claimant's title to the service of such fugitive and also the name, age and description of the person of such fugitive."

"Sec. V. It shall be the duty of any judge, justice of the peace, or alderman, when he grants or issues any warrant under the provisions of the third section of this act, to make a fair record on his docket of the same in which he shall enter the name and place of residence of the person on whose oath or affirmation the said warrant may be granted, and also, if an affidavit shall have been produced under the provisions of the fourth section of this act, the name and place of residence of the person making such affidavit, and the age and description of the person of the alleged fugitive contained in such affidavit, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the proper city or county; and any judge, justice of the peace or alderman who shall refuse or neglect to comply with the provisions of this section shall be deemed guilty of a misdemeanor in office, and shall, on conviction thereof, be sentenced to pay, at the discretion of the court, any sum not exceeding one thousand dollars, one-half to the party prosecuting for the same, and the other half to the Commonwealth. And any sheriff or constable, receiving and executing the said warrant shall, without unnecessary delay, carry the person arrested before the judge, according to the exigency of the warrant. And any sheriff or constable who shall refuse or wilfully neglect so to do shall, on conviction thereof, be sentenced to pay at the discretion of the court any sum not exceeding five hundred dollars, one-half to the party prosecuting for the same and the other half to the Commonwealth, or shall also be sentenced to imprisonment at hard labor for a time not exceeding six months, or both."

"Sec. VI. The said fugitive from labor or service, when so arrested, shall be brought before a judge as aforesaid and, upon proof to the satisfaction of such judge that the person so seized or arrested doth, under the laws of the State or authority from which she or he fled from service or labor, to the person claiming him or her, it shall be the duty of such judge to give a certificate thereof to such claimant, his or her duly authorized agent or attorney, which shall be sufficient warrant for removing the said fugitive to the State or territory from which she or he fled:

Page 41 U. S. 554

Provided, that the oath of the owner or owners, or other person interested, shall in no case be received in evidence before the judge, on the hearing of the case."

"Sec. VII. When the fugitive shall be brought before the judge, agreeably to the provisions of this act, and either party allege and prove to the satisfaction of the said judge that he or she is not prepared for trial, and have testimony material to the matter in controversy that can be obtained in a reasonable time, it shall and may be lawful, unless security satisfactory to the said judge be given for the appearance of the said fugitive on a day certain, to commit the said fugitive to the common jail for safekeeping, there to be detained at the expense of the owner, agent, or attorney for such time as the judge shall think reasonable and just, and to a day certain, when the said fugitive shall be brought before him by habeas corpus in the courthouse of the proper county, or in term-time at the chamber of the said judge, for final hearing and adjudication: Provided, that if the adjournment of the hearing be requested by the claimant, his agent or attorney, such adjournment shall not be granted unless the said claimant, his agent or attorney, shall give security satisfactory to the judge to appear and prosecute his claim on the day to which the hearing shall be adjourned: Provided that, on the hearing last mentioned, if the judge committing the said fugitive or taking the security as aforesaid should be absent, sick, or otherwise unable to attend, it shall be the duty of either of the other judges, on notice given, to attend to the said hearing and to decide thereon."

"Sec. VIII. The officer which may or shall be employed in the execution of the duties of this act shall be allowed the same fees for service of process that sheriffs within this Commonwealth are now allowed for serving process in criminal cases, and two dollars and fifty cents per day for each and every day necessarily spent in performing the duties enjoined on them by this acts to be paid by the owner, agent, or attorney immediately on the performance of the duties aforesaid."

"Sec. IX. No alderman or justice of the peace of this Commonwealth shall have jurisdiction or take cognizance of the case of any fugitive from labor from any of the United States or territories, under a certain act of Congress, passed on the tenth day of February 1793,

Page 41 U. S. 555

entitled 'an act respecting fugitives from justice, and persons escaping from the service of their masters;' nor shall any alderman or justice of the peace of this Commonwealth issue or grant any certificate or warrant of removal of any such fugitive from labor as aforesaid, except in the manner and to the effect provided in the third section of this act, upon the application, affidavit or testimony of any person or persons whatsoever, under the said act of Congress, or under any other law, authority or act of the Congress of the United States; and if any alderman or justice of the peace of this Commonwealth shall, contrary to the provision of this act, take cognizance or jurisdiction of the case of any such fugitive as aforesaid except in the manner hereinbefore provided, or shall grant or issue any certificate or warrant of removal as aforesaid, then and in either case he shall be deemed guilty of a misdemeanor in office and shall, on conviction thereof, be sentenced to pay at the discretion of the court any sum not less than five hundred dollars nor exceeding one thousand dollars, one-half thereof to the party prosecuting for the same and the other half to the use of the Commonwealth."

"Sec. X. It shall be the duty of the judge or recorder of any court of record in this Commonwealth, when he grants or issues any certificate or warrant of removal of any negro or mulatto claimed to be a fugitive from labor to the State or territory from which he or she fled, in pursuance of an act of Congress passed the 12th day of February 1793 entitled 'an act respecting fugitives from justice and persons escaping from the service of their masters,' and of this act, to make a fair record of the same in which he shall enter the age, name, sex, and general description of the person of the negro or mulatto for whom he shall grant such certificate or warrant of removal, together with the evidence and the name of the places of residence of the witnesses, and the party claiming such negro or mulatto, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the city or county in which he may reside."

"Sec. XI. Nothing in this act contained shall be construed as a repeal or alteration of any part of an act of assembly passed the first day of March, 1780,

Page 41 U. S. 556

entitled 'an act for the gradual abolition of slavery,' except the eleventh section of said act, which is hereby repealed and supplied, nor of any part of an act of assembly passed on the 28th day of March 1788, entitled 'an act to explain and amend an act for the gradual abolition of slavery,' except the 7th section of this last-mentioned act, which is hereby supplied and repealed."

And the jurors further found that the negro woman, Margaret Morgan, in the within indictment mentioned, came into the State of Pennsylvania from the State of Maryland, some time in the year 1832; that, at that time, and for a long period before that time, she was a slave for life, held to labor, and owing service or labor, under and according to the laws of the said State of Maryland, one of the United States, to a certain Margaret Ashmore, a citizen of the State of Maryland, residing in Harford county; and that the said negro woman, Margaret Morgan, escaped and fled from the State of Maryland, without the knowledge and consent of the said Margaret Ashmore; that, in the month of February, 1837, the within-named defendant, Edward Prigg, was duly and legally constituted and appointed by the said Margaret Ashmore her agent or attorney to seize and arrest the said negro woman, Margaret Morgan, as a fugitive from labor, and to remove, take, and carry her from this State into the State of Maryland, and there deliver her to the said Margaret Ashmore; that, as such agent or attorney, the said Edward Prigg, afterwards and in the same month of February, 1837, before a certain Thomas Henderson, Esquire, then being a justice of the peace in and for the county of York in this State, made oath that the said negro woman Margaret Morgan had fled and escaped from the State of Maryland, owing service or labor for life, under the laws thereof to the said Margaret Ashmore; that the said Thomas Henderson, so being such justice of the peace as aforesaid, thereupon issued his warrant, directed to one William McCleary, then and there being a regularly appointed constable in and for York county, commanding him to take the said negro woman, Margaret Morgan, and her children, and bring them before the said Thomas Henderson, or some other justice of the peace for said county; that the said McCleary, in obedience

Page 41 U. S. 557

to said warrant, did accordingly take and apprehend the said negro woman, Margaret Morgan, and her children, in York county aforesaid, and did bring her and them before the said Thomas Henderson; that the said Henderson thereupon refused to take further cognizance of said case, and that the said Prigg afterwards, and without complying with the provisions of the said act of the General Assembly of the Commonwealth of Pennsylvania, passed the 25th of March 1826, entitled

"an act to give effect to the provisions of the Constitution of the United States relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping,"

did take, remove and carry away the said negro woman, Margaret Morgan, and her children, mentioned in said warrant, out of this State, into the State of Maryland, and did there deliver the said woman and children into the custody and possession of the said Margaret Ashmore.

And further say, that one of the said children so taken, removed and carried away, was born in this State, more than one year after the said negro woman, Margaret Morgan, had fled and escaped from the State of Maryland as aforesaid.

But whether or not, upon the whole matter aforesaid, by the jurors aforesaid in form aforesaid found, the said Edward Prigg be guilty in manner and form as he stands indicted, the jurors aforesaid are altogether ignorant, and therefore, pray the advice of the court; and if, upon the whole matter aforesaid, it shall seem to the said court that the said Edward Prigg is guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is guilty in manner and form as he stands indicted.

But if, upon the whole matter aforesaid, it shall seem to the said court that the said Edward Prigg is not guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is not guilty in manner and form as he stands indicted.

This special verdict was, under an agreement between Messrs. Meredith and Nelson, counsel for Edward Prigg, and Mr. Johnson, Attorney-General of Pennsylvania, taken under the provision of an act of the Assembly of Pennsylvania passed 22d of May, 1839, and, by agreement, the court gave judgment

Page 41 U. S. 558

against Edward Prigg on the finding of the jury and the indictment.

The defendant prosecuted a writ of error to the Supreme Court of Pennsylvania, to May Term, 1840. On the 23d May, 1840, the following errors were assigned before the Court by Mr. Meredith and Mr. Nelson, who represented the State of Maryland, as well as the defendant.

The plaintiff in error suggests to the Supreme Court here that the judgment rendered in the Court of Oyer and Terminer of York county in this case should be reversed for the reason following, viz: That the Act of Assembly of the Commonwealth of Pennsylvania set out in the record in the said cause is repugnant to the provisions of the Constitution of the United States, and is therefore void.

The Supreme Court affirmed pro forma the judgment of the Court of Oyer and Terminer, and the defendant Edward Prigg prosecuted this writ of error.

Page 41 U. S. 608

MR. JUSTICE STORY delivered the opinion of the court.

This is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the Judiciary Act of 1789, ch. 20, for the purpose of revising the judgment of that court, in a case involving the construction of the Constitution and laws of the United States. The facts are briefly these:

The plaintiff in error was indicted in the Court of Oyer and Terminer for York County, for having, with force and violence, taken and carried away from that county, to the State of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention of selling and disposing of, and keeping her, as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826. That statute, in the first section, in substance provides that, if any person or persons shall, from and after the passing of the act, by force and violence, take and carry away, or cause to be taken and carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away or seduce, any negro or mulatto from any part of that Commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars, and moreover shall be sentenced to undergo servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years, and shall be confined and kept to hard labor, &c. There are many other provisions in the statute, which is recited at large in the record but to which it is in our view unnecessary to advert upon the present occasion.

The plaintiff in error pleaded not guilty to the indictment, and, at the trial, the jury found a special verdict which in substance states that the negro woman, Margaret Morgan, was a slave for life, and held to labor and service under and according to the

Page 41 U. S. 609

laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in error, being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837 caused the said negro woman to be taken and apprehended as a fugitive from labor by a state constable under a warrant from a Pennsylvania magistrate; that the said negro woman was thereupon brought before the said magistrate, who refused to take further cognizance of the case; and thereupon the plaintiff in error did remove, take and carry away the said negro woman and her children out of Pennsylvania into Maryland, and did deliver the said negro woman and her children into the custody and possession of the said Margaret Ashmore. The special verdict further finds that one of the children was born in Pennsylvania more than a year after the said negro woman had fled and escaped from Maryland.

Upon this special verdict, the Court of Oyer and Terminer of York County adjudged that the plaintiff in error was guilty of the offense charged in the indictment. A writ of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From this latter judgment, the present writ of error has been brought to this Court.

Before proceeding to discuss the very important and interesting questions involved in this record, it is fit to say that the cause has been conduced in the court below, and has been brought here by the cooperation and sanction, both of the State of Maryland and the State of Pennsylvania in the most friendly and courteous spirit, with a view to have those questions finally disposed of by the adjudication of this Court so that the agitations on this subject in both States, which have had a tendency to interrupt the harmony between them, may subside, and the conflict of opinion be put at rest. It should also be added that the statute of Pennsylvania of 1826 was (as has been suggested at the bar) passed with a view of meeting the supposed wishes of Maryland on the subject of fugitive slaves, and that, although it has failed to produce the good effects intended in its practical construction, the result was unforeseen and undesigned.

1. The question arising in the case as to the constitutionality of the statute of Pennsylvania, has been most elaborately argued at the

Page 41 U. S. 610

bar. The counsel for the plaintiff in error have contended that the statute of Pennsylvania is unconstitutional, first, because Congress has the exclusive power of legislation upon the subject matter under the Constitution of the United States and under the act of the 12th of February 1793, ch. 51, which was passed in pursuance thereof; secondly, that, if this power is not exclusive in Congress, still the concurrent power of the state legislatures is suspended by the actual exercise of the power of Congress; and thirdly, that, if not suspended, still the statute of Pennsylvania, in all its provisions applicable to this case, is in direct collision with the act of Congress, and therefore, is unconstitutional and void. The counsel for Pennsylvania maintain the negative of all those points.

Few questions which have ever come before this Court involve more delicate and important considerations, and few upon which the public at large may be presumed to feel a more profound and pervading interest. We have accordingly given them our most deliberate examination, and it has become my duty to state the result to which we have arrived, and the reasoning by which it is supported.

Before, however, we proceed to the points more immediately before us, it may be well, in order to clear the case of difficulty, to say that, in the exposition of this part of the Constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will indeed probably be found, when we look to the character of the Constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact, that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights with all the lights and aids of contemporary history, and to give to the words of each just such operation

Page 41 U. S. 611

and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.

There are two clauses in the Constitution upon the subject of fugitives, which stands in juxtaposition with each other and have been thought mutually to illustrate each other. They are both contained in the second section of the fourth Article, and are in the following words:

"A person charged in any State with treason, felony, or other crime who shall flee from justice and be found in another State shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

The last clause is that the true interpretation whereof is directly in judgment before us. Historically, it is well known that the object of this clause was to secure to the citizens of the slave-holding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slave-holding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.

By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Somerset's Case,

Page 41 U. S. 612

Lofft 1; S.C. 11 State Trials, by Harg. 340, S.C. 20 How. State Trials 79, which decided before the American revolution. It is manifest from this consideration that, if the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters -- a course which would have created the most bitter animosities and engendered perpetual strife between the different States. The clause was therefore of the last importance to the safety and security of the southern States, and could not have been surrendered by them, without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it -- a proof at once of its intrinsic and practical necessity.

How then are we to interpret the language of the clause? The true answer is in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and, by another mode, it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged from service or labor in consequence of any state law or regulation. Now certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said that any state law or state regulation which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave and the immediate command of his service and labor operates pro tanto a discharge of the slave therefrom. The question can never be how much the slave is discharged from, but whether he is

Page 41 U. S. 613

discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.

We have said that the clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any state law or legislation whatsoever, because there is no qualification or restriction of it to be found therein, and we have no right to insert any which is not expressed and cannot be fairly implied. Especially are we estopped from so doing when the clause puts the right to the service or labor upon the same ground, and to the same extent, in every other State as in the State from which the slave escaped and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own State confer upon him, as property, and we all know that this right of seizure and recaption is universally acknowledged in all the slaveholding States. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject. Mr. Justice Blackstone (3 Bl. Com. 4) lays it down as unquestionable doctrine.

"Recaption or reprisal [says he] is another species of remedy by the mere act of the party injured. This happens when anyone hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child or servant, in which case the owner of the goods, and the husband, parent or master, may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner or attended with a breach of the peace."

Upon this ground, we have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave whenever he can do it without any breach of the peace or any illegal violence. In this sense and to this extent, this clause of the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

But the clause of the Constitution does not stop here, nor, indeed, consistently with its professed objects, could it do so. Many

Page 41 U. S. 614

cases must arise in which, if the remedy of the owner were confined to the mere right of seizure and recaption, he would be utterly without any adequate redress. He may not be able to lay his hands upon the slave. He may not be able to enforce his rights against persons who either secrete or conceal or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership, as to the courts in which he shall sue, and as to the actions which he may bring or the process be may use to compel the delivery of the slave. Nay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem, or no specific mode of repossessing the slave, leaving the owner, at best, not that right which the Constitution designed to secure, a specific delivery and repossession of the slave, but a mere remedy in damages, and that, perhaps, against persons utterly insolvent or worthless. The state legislation may be entirely silent on the whole subject, and its ordinary remedial process framed with different views and objects, and this may be innocently, as well as designedly, done, since every State is perfectly competent, and has the exclusive right, to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases which its own policy and its own institutions either prohibit or discountenance.

If, therefore, the clause of the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain that it would have been, in a great variety of cases, a delusive and empty annunciation. If it did not contemplate any action, either through state or national legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right, it would be left to the mere comity of the States to act as they should please, and would depend for its security upon the changing course of public opinion, the mutations of public policy, and the general adaptations of remedies for purposes strictly according to the lex fori.

And this leads us to the consideration of the other part of the clause, which implies at once a guarantee and duty. It says, "but he [the slave] shall be delivered up on claim of the party to

Page 41 U. S. 615

whom such service or labor may be due." Now we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some further remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made! What is a claim? It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited but, at the same time, an equally expressive, definition was given by Lord Dyer, as cited in Stowel v. Zouch, 1 Plowd. 359, and it is equally applicable to the present case: that

"a claim is a challenge by a man of the propriety or ownership of a thing which he has not in possession, but which is wrongfully detained from him."

The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When and under what circumstances shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled?

These and many other questions will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution guaranties the right, and if it requires the delivery upon the claim of the owner (as cannot well be doubted), the natural inference certainly is that the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle, applicable to all cases of this sort, would seem to be that, where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the National Constitution, and not in that of any State. It does not point out any state functionaries, or any state action, to carry its provisions into effect . The States cannot, therefore, be compelled to enforce them, and

Page 41 U. S. 616

it might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government, nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is, that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. The remark of Mr. Madison, in the Federalist (No. 43), would seem in such cases to apply with peculiar force. "A right [says he] implies a remedy, and where else would the remedy be deposited than where it is deposited by the Constitution?" -- meaning, as the context shows, in the Government of the United States.

It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and, inasmuch as the right is a right of property, capable of being recognized and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case "arising under the Constitution" of the United States within the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to that right; and, if so, then it may prescribe the mode and extent in which it shall be applied, and how and under what circumstances the proceedings shall afford a complete protection and guarantee to the right.

Congress has taken this very view of the power and duty of the National Government. As early as the year 1791, the attention of Congress was drawn to it (as we shall hereafter more fully see) in consequence of some practical difficulties arising under the other clause respecting fugitives from justice escaping into other States. The result of their deliberations was the passage of the act of the 12th of February 1793, ch. 51, which, after having, in the first and second sections, provided by the case of fugitives from justice, by a demand to be made of the delivery, through the executive authority of the State where they are found,

Page 41 U. S. 617

proceeds, in the third section, to provide that, when a person held to labor or service in any of the United States, shall escape into any other of the States or territories, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made; and, upon proof to the satisfaction of such judge or magistrate, either by oral evidence or affidavit, &c., that the person so seized or arrested, doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled. The fourth section provides a penalty against any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney in so seizing or arresting such fugitive from labor, or rescue such fugitive from the claimant, or his agent or attorney when so arrested, or who shall harbor or conceal such fugitive after notice that he is such; and it also saves to the person claiming such labor or service his right of action for or on account of such injuries.

In a general sense, this act may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice and fugitive slaves -- that is, it covers both the subjects in its enactments, not because it exhausts the remedies which may be applied by Congress to enforce the rights if the provisions of the act shall in practice be found not to attain the object of the Constitution; but because it points out fully all the modes of attaining those objects which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Constitution. If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject and, by necessary implication, prohibit it. For, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot

Page 41 U. S. 618

be that the state legislatures have a right to interfere and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by this Court, in the case of @ 18 U. S. 21-22, where it was expressly held that, where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for state legislation to add to the provisions of Congress upon that subject, for that the will of Congress upon the whole subject is as clearly established by what it has not declared as by what it has expressed.

But it has been argued that the act of Congress is unconstitutional because it does not fall within the scope of any of the enumerated powers of legislation confided to that body, and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this -- that although rights are exclusively secured by, or duties are exclusively imposed upon, the National Government, yet, unless the power to enforce these rights or to execute these duties can be found among the express powers of legislation enumerated in the Constitution, they remain without any means of giving them effect by any act of Congress, and they must operate solely proprio vigore, however defective may be their operation -- nay! even although, in a practical sense, they may become a nullity from the want of a proper remedy to enforce them or to provide against their violation. If this be the true interpretation of the Constitution, it must in a great measure fail to attain many of its avowed and positive objects as a security of rights and a recognition of duties. Such a limited construction of the Constitution has never yet been adopted as correct either in theory or practice. No one has ever supposed that Congress could constitutionally, by its legislation, exercise powers or enact laws beyond the powers delegated to it by the Constitution. But it has on various occasions exercised powers which were necessary and proper as means to carry into effect rights expressly

Page 41 U. S. 619

given and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication that the means to accomplish it are given also, or, in other words, that the power flows as a necessary means to accomplish the end.

Thus, for example, although the Constitution has declared that representatives shall be apportioned among the States according to their respective federal numbers and, for this purpose, it has expressly authorized Congress by law to provide for an enumeration of the population every ten years, yet the power to apportion representatives after this enumeration is made is nowhere found among the express powers given to Congress, but it has always been acted upon as irresistibly flowing from the duty positively enjoined by the Constitution. Treaties made between the United States and foreign powers often contain special provisions which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect; it has been supposed to result from the duty of the National Government to fulfill all the obligations of treaties. The senators and representatives in Congress are, in all cases except treason, felony and breach of the peace, exempted from arrest during their attendance at the sessions thereof, and in going to and returning from the same. May not Congress enforce this right by authorizing a writ of habeas corpus to free them from an illegal arrest in violation of this clause of the Constitution? If it may not, then the specific remedy to enforce it must exclusively depend upon the local legislation of the States, and may be granted or refused according to their own varying policy or pleasure. The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it. No express power is given to Congress to secure this invaluable right in the nonenumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually

Page 41 U. S. 620

provided for only in this way, that it ought not to be deemed, by necessary implication, within the scope of the legislative power of Congress.

These cases are put merely by way of illustration, to show that the rule of interpretation, insisted upon at the argument, is quite too narrow to provide for the ordinary exigencies of the National Government in cases where rights are intended to be absolutely secured and duties are positively enjoined by the Constitution.

The very Act of 1793 now under consideration affords the most conclusive proof that Congress has acted upon a very different rule of interpretation, and has supposed that the right, as well as the duty, of legislation on the subject of fugitives from justice and fugitive slaves was within the scope of the constitutional authority conferred on the national legislature. In respect to fugitives from justice, the Constitution, although it expressly provides that the demand shall be made by the executive authority of the State from which the fugitive has fled, is silent as to the party upon whom the demand is to be made and as to the mode in which it shall be made. This very silence occasioned embarrassments in enforcing the right and duty at an early period after the adoption of the Constitution; and produced a hesitation on the part of the executive authority of Virginia to deliver up a fugitive from justice upon the demand of the executive of Pennsylvania in the year 1791; and, as we historically know from the message of President Washington and the public documents of that period, it was the immediate cause of the passing of the Act of 1793, which designated the person (the state executive) upon whom the demand should be made, and the mode and proofs upon and in which it should be made. From that time down to the present hour, not a doubt has been breathed upon the constitutionality of this part of the act, and every executive in the Union has constantly acted upon and admitted its validity. Yet the right and the duty are dependent, as to their mode of execution, solely on the act of Congress, and, but for that, they would remain a nominal right and passive duty the execution of which being entrusted to and required of no one in particular, all persons might be at liberty to disregard it. This very acquiescence, under such circumstances, of the highest state functionaries is a most decisive proof of the universality of the opinion that the

Page 41 U. S. 621

act is founded in a just construction of the Constitution independent of the vast influence which it ought to have as a contemporaneous exposition of the provisions by those who were its immediate framers or intimately connected with its adoption.

The same uniformity of acquiescence in the validity of the Act of 1793 upon the other part of the subject matter that of fugitive slaves has prevailed throughout the whole Union until a comparatively recent period. Nay, being from its nature and character more readily susceptible of being brought into controversy in courts of justice than the former, and of enlisting in opposition to it the feelings, and it may be, the prejudices, of some portions of the non-slaveholding States, it has naturally been brought under adjudication in several States in the Union, and particularly in Massachusetts, New York, and Pennsylvania, and, on all these occasions, its validity has been affirmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. & Rawle 62; Glen v. Hodges, 9 Johns. 67; Jack v. Martin, 12 Wend. 311; S.C. 12 ibid. 507; and Commonwealth v. Griffin, 2 Pick. 11, are directly in point. So far as the judges of the courts of the United States have been called upon to enforce it, and to grant the certificate required by it, it is believed that it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity would, in our judgment, entitle the question to be considered at rest unless, indeed, the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation and of national operations. Congress, the executive, and the judiciary have, upon various occasions, acted upon this as a sound and reasonable doctrine. Especially did this Court, in the cases of Stuart v. Laird, 1 Cranch 299, and Martin v. Hunter's Lessee, 1 Wheat. 304, and in Cohens v. Virginia, 6 Wheat. 264, rely upon contemporaneous expositions of the Constitution, and long acquiescence in it, with great confidence in the discussion of questions of a highly interesting and important nature.

But we do not wish to rest our present opinion upon the ground

Page 41 U. S. 622

either of contemporaneous exposition or long acquiescence, or even practical action; neither do we mean to admit the question to be of a doubtful nature, and therefore as properly calling for the aid of such considerations. On the contrary, our judgment would be the same if the question were entirely new and the act of Congress were of recent enactment. We hold the act to be clearly constitutional in all its leading provisions and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point in different States, whether state magistrates are bound to act under it, none is entertained by this Court that state magistrates may, if they choose, exercise that authority unless prohibited by state legislation.

The remaining question is whether the power of legislation upon this subject is exclusive in the National Government or concurrent in the States until it is exercised by Congress. In our opinion, it is exclusive, and we shall now proceed briefly to state our reasons for that opinion. The doctrine stated by this Court in @ 17 U. S. 193, contains the true, although not the sole, rule or consideration which is applicable to this particular subject. "Wherever," said Mr. Chief Justice Marshall in delivering the opinion of the Court,

"the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures, as if they had been forbidden to act."

The nature of the power, and the true objects to be attained by it, are then as important to be weighed, in considering the question of its exclusiveness, as the words in which it is granted.

In the first place, it is material to state (what has been already incidentally hinted at) that the right to seize and retake fugitive slaves and the duty to deliver them up, in whatever State of the Union they may be found, and, of course, the corresponding power in Congress to use the appropriate means to enforce the right and duty, derive their whole validity and obligation exclusively from the Constitution of the United States, and are there, for the first time, recognized and established in that peculiar character.

Page 41 U. S. 623

Before the adoption of the Constitution, no State had any power whatsoever over the subject except within its own territorial limits, and could not bind the sovereignty or the legislation of other States. Whenever the right was acknowledged, or the duty enforced, in any State, it was as a matter of comity, and not as a matter of strict moral, political, or international obligation or duty. Under the Constitution, it is recognized as an absolute, positive right and duty, pervading the whole Union with an equal and supreme force, uncontrolled and uncontrollable by state sovereignty or state legislation. It is, therefore, in a just sense, a new and positive right, independent of comity, confined to no territorial limits, and bounded by no state institutions or policy. The natural inference deductible from this consideration certainly is, in the absence of any positive delegation of power to the state legislatures that it belongs to the Legislative Department of the National Government, to which it owes its origin and establishment. It would be a strange anomaly and forced construction to suppose that the National Government meant to rely for the due fulfillment of its own proper duties, and the rights it intended to secure, upon state legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union should be confided to state sovereignty, which could not rightfully act beyond its own territorial limits.

In the next place, the nature of the provision and the objects to be attained by it require that it should be controlled by one and the same will, and act uniformly by the same system of regulations throughout the Union. If, then, the States have a right, in the absence of legislation by Congress, to act upon the subject, each State is at liberty to prescribe just such regulations as suit its own policy, local convenience, and local feelings. The legislation of one State may not only be different from, but utterly repugnant to and incompatible with, that of another. The time and mode and limitation of the remedy, the proofs of the title, and all other incidents applicable thereto may be prescribed in one State which are rejected or disclaimed in another. One State may require the owner to sue in one mode, another in a different mode. One State may make a statute of limitations as to the remedy, in its own tribunals, short and summary; another

Page 41 U. S. 624

may prolong the period and yet restrict the proofs. Nay, some States may utterly refuse to act upon the subject of all, and others may refuse to open its courts to any remedies in rem because they would interfere with their own domestic policy, institutions, or habits. The right, therefore, would never, in a practical sense, be the same in all the States. It would have no unity of purpose or uniformity of operation. The duty might be enforced in some States, retarded or limited in others, and denied as compulsory in many, if not in all. Consequences like these must have been foreseen as very likely to occur in the non-slaveholding States where legislation, if not silent on the subject and purely voluntary, could scarcely be presumed to be favorable to the exercise of the rights of the owner.

It is scarcely conceivable that the slaveholding States would have been satisfied with leaving to the legislation of the non-slaveholding States a power of regulation, in the absence of that of Congress, which would or might practically amount to a power to destroy the rights of the owner. If the argument, therefore, of a concurrent power in the States to act upon the subject matter, in the absence of legislation by Congress, be well founded, then, if Congress had never acted at all, or if the act of Congress should be repealed without providing a substitute, there would be a resulting authority in each of the States to regulate the whole subject at its pleasure, and to dole out its own remedial justice or withhold it at its pleasure and according to its own views of policy and expediency. Surely such a state of things never could have been intended under such a solemn guarantee of right and duty. On the other hand, construe the right of legislation as exclusive in Congress, and every evil and every danger vanishes. The right and the duty are then coextensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulation and control through however many States he may pass with his fugitive slave in his possession in transitu to his own domicile. But, upon the other supposition, the moment he passes the state line, he becomes amenable to the laws of another sovereignty whose regulations may greatly embarrass or delay the exercise of his rights, and even be repugnant to those of the State where he first arrested the fugitive. Consequences like these show that

Page 41 U. S. 625

the nature and objects of the provisions imperiously require that, to make it effectual, it should be construed to be exclusive of state authority. We adopt the language of this Court in Sturgis v. Crowninshield, 4 Wheat. 193, and say that

"it has never been supposed that the concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited; the confusion of such a practice would be endless."

And we know no case in which the confusion and public inconvenience and mischiefs thereof could be more completely exemplified than the present.

These are some of the reasons, but by no means all, upon which we hold the power of legislation on this subject to be exclusive in Congress. To guard, however, against any possible misconstruction of our views, it is proper to state that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration, which is exclusively derived from and secured by the Constitution of the United States and owes its whole efficacy thereto. We entertain no doubt whatsoever that the States, in virtue of their general police power, possesses full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course, and, in many cases, the operations of this police power, although designed generally for other purposes -- for protection, safety and peace of the State -- may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States, or with the remedies prescribed by Congress to aid and enforce the same.

Upon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded is unconstitutional

Page 41 U. S. 626

and void. It purports to punish as a public offense against that State the very act of seizing and removing a slave by his master which the Constitution of the United States was designed to justify and uphold. The special verdict finds this fact, and the state courts have rendered judgment against the plaintiff in error upon that verdict. That judgment must, therefore, be reversed, and the cause remanded to the Supreme Court of Pennsylvania with directions to carry into effect the judgment of this Court rendered upon the special verdict, in favor of the plaintiff in error.

MR. CHIEF JUSTICE TANEY.

I concur in the opinion pronounced by the Court that the law of Pennsylvania, under which the plaintiff in error was indicted, is unconstitutional and void, and that the judgment against him must be reversed. But, as the questions before us arise upon the construction of the Constitution of the United States, and as I do not assent to all the principles contained in the opinion just delivered, it is proper to state the points on which I differ.

I agree entirely in all that is said in relation to the right of the master, by virtue of the third clause of the second section of the Fourth Article of the Constitution of the United States, to arrest his fugitive slave in any State wherein he may find him. He has a right peaceably to take possession of him and carry him away without any certificate or warrant from a judge of the district or circuit court of the United States, or from any magistrate of the State, and whoever resists or obstructs him is a wrongdoer, and every state law which proposes directly or indirectly to authorize such resistance or obstruction is null and void, and affords no justification to the individual or the officer of the State who acts under it. This right of the master being given by the Constitution of the United States, neither Congress nor a state legislature can, by any law or regulation, impair it or restrict it.

I concur also in all that is contained in the opinion concerning the power of Congress to protect the citizens of the slaveholding States in the enjoyment of this right, and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions, and no State is authorized to pass any law that comes in conflict in any respect with the remedy provided by Congress.

Page 41 U. S. 627

The act of February 12th, 1793, is a constitutional exercise of this power, and every state law which requires the master, against his consent, to go before any state tribunal or officer before he can take possession of his property, or which authorizes a state officer to interfere with him when he is peaceably removing it from the State, is unconstitutional and void.

But, as I understand the opinion of the Court, it goes further, and decides that the power to provide a remedy for this right is vested exclusively in Congress, and that all laws upon the subject passed by a State since the adoption of the Constitution of the United States are null and void, even although they were intended in good faith to protect the owner in the exercise of his rights of property, and do not conflict in any degree with the act of Congress.

I do not consider this question as necessarily involved in the case before us, for the law of Pennsylvania under which the plaintiff in error was prosecuted is clearly in conflict with the Constitution of the United States, as well as with the law of 1793. But, as the question is discussed in the opinion of the Court, and as I do not assent either to the doctrine or the reasoning by which it is maintained, I proceed to state very briefly my objections.

The opinion of the Court maintains that the power over this subject is so exclusively vested in Congress that no State, since the adoption of the Constitution, can pass any law in relation to it. In other words, according to the opinion just delivered, the state authorities are prohibited from interfering for the purpose of protecting the right of the master and aiding him in the recovery of his property. I think the States are not prohibited, and that, on the contrary, it is enjoined upon them as a duty to protect and support the owner when he is endeavoring to obtain possession of his property found within their respective territories.

The language used in the Constitution does not, in my judgment, justify this construction given to it by the court. It contains no words prohibiting the several States from passing laws to enforce this right. They are, in express terms, forbidden to make any regulation that shall impair it, but there the prohibition stops. And, according to the settled rules of construction for all written instruments, the prohibition being confined to laws injurious

Page 41 U. S. 628

to the right, the power to pass laws to support and enforce it is necessarily implied. And the words of the article which direct that the fugitive "shall be delivered up" seem evidently designed to impose it as a duty upon the people of the several States to pass laws to carry into execution, in good faith, the compact into which they thus solemnly entered with each other. The Constitution of the United States, and every article and clause in it, is a part of the law of every State in the Union, and is the paramount law. The right of the master, therefore, to seize his fugitive slave is the law of each State, and no State has the power to abrogate or alter it. And why may not a State protect a right of property acknowledged by its own paramount law? Besides, the laws of the different States in all other cases constantly protect the citizens of other States in their rights of property when it is found within their respective territories, and no one doubts their power to do so. And, in the absence of any express prohibition, I perceive no reason for establishing by implication a different rule in this instance where, by the national compact, this right of property is recognized as an existing right in every State of the Union.

I do not speak of slaves whom their masters voluntarily take into a non-slaveholding State. That case is not before us. I speak of the case provided for in the Constitution -- that is to say, the case of a fugitive who has escaped from the service of his owner and who has taken refuge and is found in another State.

Moreover, the clause of the Constitution of which we are speaking does not purport to be a distribution of the rights of sovereignty by which certain enumerated powers of Government and legislation are exclusively confided to the United States. It does not deal with that subject. It provides merely for the rights of individual citizens of different States, and places them under the protection of the General Government in order more effectually to guard them from invasion by the States. There are other clauses in the Constitution in which other individual rights are provided for and secured in like manner, and it never has been suggested that the States could not uphold and maintain them because they were guarantied by the Constitution of the United States. On the contrary, it has always been held to be the duty

Page 41 U. S. 629

of the States to enforce them, and the action of the General Government has never been deemed necessary, except to resist and prevent their violation.

Thus, for example, the Constitution provides that no State shall pass any law impairing the obligation of contracts. This, like the right in question, is an individual right placed under the protection of the General Government. And, in order to secure it, Congress have passed a law authorizing a writ of error to the Supreme Court whenever the right thus secured to the individual is drawn in question, and denied to him in a state court, and all state laws impairing this right are admitted to be void. Yet no one has ever doubted that a State may pass laws to enforce the obligation of a contract, and may give to the individual the full benefit of the right so guarantied to him by the Constitution, without waiting for legislation on the part of Congress.

Why may not the same thing be done in relation to the individual right now under consideration?

Again, the Constitution of the United States declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. And, although the privileges and immunities, for greater safety, are placed under the guardianship of the General Government, still the States may, by their laws and in their tribunals, protect and enforce them. They have not only the power, but it is a duty enjoined upon them by this provision in the Constitution.

The individual right now in question stands on the same grounds, and is given by similar words, and ought to be governed by the same principles. The obligation to protect rights of this description is imposed upon the several States as a duty which they are bound to perform, and the prohibition extends to those laws only which violate the right intended to be secured.

I cannot understand the rule of construction by which a positive and express stipulation for the security of certain individual rights of property in the several States is held to imply a prohibition to the States to pass any laws to guard and protect them.

The course pursued by the General Government after the adoption of the Constitution confirms my opinion as to its true construction.

No law was passed by Congress to give a remedy for this right

Page 41 U. S. 630

until nearly four years after the Constitution went into operation. Yet, during that period of time, the master was undoubtedly entitled to take possession of his property wherever he might find it, and the protection of this right was left altogether to the state authorities. In attempting to exercise it, he was continually liable to be resisted by superior force, or the fugitive might be harbored in the house of someone who would refuse to deliver him. And if a State could not authorize its officers, upon the master's application, to come to his aid, the guarantee contained in the Constitution was of very little practical value. It is true, he might have sued for damages. But, as he would most commonly be a stranger in the place where the fugitive was found, he might not be able to learn even the names of the wrongdoers; and if he succeeded in discovering them, they might prove to be unable to pay damages. At all events, he would be compelled to encounter the costs and expenses of a suit, prosecuted at a distance from his own home, and to sacrifice, perhaps, the value of his property in endeavoring to obtain compensation.

This is not the mode in which the Constitution intended to guard this important right, nor is this the kind of remedy it intended to give. The delivery of the property itself -- its prompt and immediate delivery -- is plainly required, and was intended to be secured.

Indeed, if the state authorities are absolved from all obligation to protect this right, and may stand by and see it violated without an effort to defend it, the act of Congress of 1793 scarcely deserves the name of a remedy. The state officers mentioned in the law are not bound to execute the duties imposed upon them by Congress unless they choose to do so or are required to do so by a law of the State, and the state legislature has the power, if it thinks proper, to prohibit them. The Act of 1793, therefore, must depend altogether for its execution upon the officers of the United States named in it. And the master must take the fugitive, after he has seized him, before a judge of the district or circuit court, residing in the State, and exhibit his proofs, and procure from the judge his certificate of ownership, in order to obtain the protection in removing his property which this act of Congress profess to give.

Now, in many of the States, there is but one district judge, and

Page 41 U. S. 631

there are only nine States which have judges of the Supreme Court residing within them. The fugitive will frequently be found by his owner in a place very distant from the residence of either of these judges, and would certainly be removed beyond his reach before a warrant could be procured from the judge to arrest him, even if the act of Congress authorized such a warrant. But it does not authorize the judge to issue a warrant to arrest the fugitive, but evidently relied on the state authorities to protect the owner in making the seizure. And it is only when the fugitive is arrested and brought before the judge that he is directed to take the proof and give the certificate of ownership. It is only necessary to state the provisions of this law in order to show how ineffectual and delusive is the remedy provided by Congress if state authority is forbidden to come to its aid.

But it is manifest from the face of the law that an effectual remedy was intended to be given by the Act of 1793. It never designed to compel the master to encounter the hazard and expense of taking the fugitive, in all cases, to the distant residence of one of the judges of the courts of the United States, for it authorized him also to go before any magistrate of the county, city, or town corporate wherein the seizure should be made. And Congress evidently supposed that it had provided a tribunal at the place of the arrest capable of furnishing the master with the evidence of ownership, to protect him more effectually from unlawful interruption. So far from regarding the state authorities as prohibited from interfering in cases of this description, the Congress of that day must have counted upon their cordial cooperation; they legislated with express reference to state support. And it will be remembered that, when this law was passed, the Government of the United States was administered by the men who had but recently taken a leading part in the formation of the Constitution. And the reliance obviously placed upon state authority for the purpose of executing this law proves that the construction now given to the Constitution by the Court had not entered into their minds. Certainly it is not the construction which it received in the States most interested in its faithful execution. Maryland, for example, which is substantially one of the parties to this case, has continually passed laws, ever since the adoption of the Constitution of the United States, for the arrest

Page 41 U. S. 632

of fugitive slaves from other States as well as her own. Her officers are, by law, required to arrest them when found within her territory, and her magistrates are required to commit them to the public prison in order to keep them safely until the master has an opportunity to reclaiming them. And if the owner is not known, measures are directed to be taken by advertisement to apprise him of the arrest, and, if known, personal notice to be given. And as fugitives from the more southern States, when endeavoring to escape into Canada, very frequently pass through her territory, these laws have been almost daily in the course of execution in some part of the State. But if the States are forbidden to legislate on this subject, and the power is exclusively in Congress, then these state laws are unconstitutional and void, and the fugitive can only be arrested according to the provisions of the act of Congress. By that law, the power to seize is given to no one but the owner, his agent, or attorney. And if the officers of the State are not justified in acting under the state laws, and cannot arrest the fugitive and detain him in prison without having first received an authority from the owner, the territory of the State must soon become an open pathway for the fugitives escaping from other states. For they are often in the act of passing through it by the time that the owner first discovers that they have absconded, and, in almost every instance, they would be beyond its borders (if they were allowed to pass through without interruption) before the master would be able to learn the road they had taken.

I am aware that my brethren of the majority do not contemplate these consequences, and do not suppose that the opinion they have given will lead to them. And it seems to be supposed that laws nearly similar to those I have mentioned might be passed by the State in the exercise of her powers over her internal police, and by virtue of her right to remove from her territory disorderly and evil-disposed persons or those who, from the nature of her institutions, are dangerous to her peace and tranquillity. But it would be difficult, perhaps, to bring all the laws I have mentioned within the legitimate scope of the internal powers of police. The fugitive is not always arrested in order to prevent a dangerous or evil-disposed person from remaining in her territory. He is himself most commonly anxious to escape

Page 41 U. S. 633

from it, and it often happens that he is seized near the borders of the State when he is endeavoring to leave it, and is brought back and detained until he can be delivered to his owner. He may sometimes be found traveling peaceably along the public highway on his road to another State, in company with and under the protection of a white man who is abetting his escape. And it could hardly be maintained that the arrest and confinement of the fugitive in the public prison, under such circumstances, until he could be delivered to his owner was necessary for the internal peace of the State, and, therefore, a justifiable exercise of its powers of police.

It has not heretofore been supposed necessary, in order to justify these laws, to refer them to such questionable powers of internal and local police. They were believed to stand upon surer and firmer grounds. They were passed not with reference merely to the safety and protection of the State itself, but in order to secure the delivery of the fugitive slave to his lawful owner. They were passed by the State in the performance of a duty believed to be enjoined upon it by the Constitution of the United States.

It is true that Maryland, as well as every other slaveholding State, has a deep interest in the faithful execution of the clause in question. But the obligation of the compact is not confined to them; it is equally binding upon the faith of every State in the Union, and has heretofore, in my judgment, been justly regarded as obligatory upon all.

I dissent, therefore, upon these grounds, from that part of the opinion of the Court which denies the obligation and the right of the state authorities to protect the master when he is endeavoring to seize a fugitive from his service in pursuance of the right given to him by the Constitution of the United States, provided the state law is not in conflict with the remedy provided by Congress.

MR. JUSTICE THOMPSON.

I concur in the judgment given by the Court in this case. But, not being able to yield my assent to all the doctrines embraced in the opinion, I will very briefly state the grounds on which my judgment is placed.

Page 41 U. S. 634

The provision in the Constitution upon which the present question arises is as follows:

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due."

Art. 4, § 2. We know historically that this provision was the result of a compromise between the slaveholding and non-slaveholding States; and it is the indispensable duty of all to carry it faithfully into execution according to its real object and intention.

This provision naturally divides itself into two distinct considerations. First, the right affirmed, and secondly, the mode and manner in which that right is to be asserted and carried into execution.

The right is secured by the Constitution, and requires no law to fortify or strengthen it. It affirms in the most unequivocal manner the right of the master to the service of his slave according to the laws of the State under which he is so held. And it prohibits the States from discharging the slave from such service by any law or regulation therein.

The second branch of the provision, in my judgment, requires legislative regulations, pointing out the mode and manner in which the right is to be asserted. It contemplates the delivery of the person of the slave to the owner, and does not leave the owner to his ordinary remedy at law to recover damages on a refusal to deliver up the property of the owner. Legislative provision, in this respect, is essential for the purpose of preserving peace and good order in the community. Such cases, in some parts of our country, are calculated to excite feelings which, if not restrained by law, might lead to riots and breaches of the peace. This legislation, I think, belongs more appropriately to Congress than to the States, for the purpose of having the regulation uniform throughout the United States, as the transportation of the slave may be through several States, but there is nothing in the subject matter that renders state legislation unfit. It is no objection to the right of the States to pass laws on the subject that there is no power anywhere given to compel them to do it; neither is there to compel Congress to pass any law <

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PRIGG V. PENNSYLVANIA, 41 U. S. 539 (1842)

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Prigg v. Pennsylvania, 41 U.S. 16 Pet. 539 539 (1842)