The fourth section of the Act of Congress approved 12 February,
1793, 1 Stat. 302, entitled "An act respecting fugitives escaping
from justice and persons escaping from the service of their
masters" is repealed, so far as relates to the penalty, by the Act
of Congress approved September 18, 1850, 9 Stat. 462, entitled "An
act to amend and supplementary to the above act."
Therefore, where an action for the recovery of the penalty
prescribed in the act of 1793 was pending at the time of the
repeal, such repeal is a bar to the action.
The following certificate explains the question:
"UNITED STATES OF AMERICA"
"
District of Indiana"
"At a circuit court of the United States begun and holden at
Indianapolis, for the District of Indiana, on Monday, the
nineteenth day of May in the year one thousand eight hundred and
fifty-one and continued from day to day until Friday, the thirtieth
day of May, one thousand eight hundred and fifty-one. "
Page 54 U. S. 430
"JOHN NORRIS"
"v."
"EDWIN B. CROCKER AND ELISHA EGBERT"
"Present, honorable John McLean and the honorable Elisha M.
Huntington, judges."
"This is an action of debt brought to recover the penalty of
five hundred dollars upon the fourth section of the Act of Congress
approved February 12, 1793, entitled 'An act respecting fugitives
from justice, and persons escaping from the service of their
masters,' declaration in the usual form, and demurrer and joinder
thereto."
"The case coming on to be argued on demurrer, it occurred as a
question whether the aforesaid section of the aforesaid Act of
February 12, 1793, is repealed, so far as relates to the penalty
given by said section, by the Act of Congress of September 18,
1850, entitled 'An act to amend and supplementary to the act
entitled 'An act respecting fugitives from justice, and persons
escaping from the service of their masters,'' approved February 12,
1793, and whether, if repealed, the same can affect this action,
which was pending before the passage of the last-named act, on
which questions the opinions of the judges were opposed."
"Whereupon, on motion of the plaintiff by his counsel that the
points on which the disagreements hath happened may during the term
be stated under the direction of the judges and certified under the
seal of the court to the Supreme Court to be finally decided."
"It is ordered that the foregoing statement of the pleadings and
the following questions involved, which are made under the
direction of the judges, be certified according to the request of
the plaintiff by his counsel, and the law in that case made and
provided, to-wit: "
"I. Is the fourth section of the Act of Congress approved 12
February, A.D. 1793, entitled "An act respecting fugitives from
justice, and persons escaping from the service of their masters,"
repealed, so far as relates to the penalty, by the Act of Congress,
approved September 18th, 1850, entitled "An act to amend, and
supplementary to the act entitled
An act respecting fugitives
from justice, and persons escaping from the service of their
masters,'" approved February 12, 1793."
"II. Whether, if the fourth section of the last-named Act of
February 12, 1793, is repealed so far as relates to the penalty by
the act to amend and supplementary to the same, that repeal will in
law bar the present action that was pending at the time of the
repeal. "
Page 54 U. S. 438
MR. JUSTICE CATRON delivered the opinion of the Court.
The following questions are certified to us on a division of
opinion from the Circuit Court for the District of Indiana
"1. Whether the 4th section of the act of 1793 respecting
persons escaping from service of their masters is repealed, so far
as relates to the penalty, by the act of 1850 on the same
subject."
"2. Whether, if the act of 1793 is repealed as to the penalty,
the repeal will bar an action that was pending at the time of the
repeal."
The fugitive slave law of 1850 does not repeal the 4th section
of the act of 1793 in terms, and if it is repealed, it must be by
implication. As a general rule, it is not open to controversy that
where a new statute covers the whole subject matter of an old one,
adds offenses, and prescribes different penalties for those
enumerated in the old law, that then the former statute is repealed
by implication, as the provisions of both cannot stand
together.
To ascertain whether there be repugnance, the two enactments
must be compared.
The 4th section of the act of 1793 provides 1st, that any person
who shall, knowingly and willingly, obstruct or hinder a claimant,
his agent or attorney, in arresting a fugitive from labor, or 2d,
shall rescue the fugitive from the claimant, his agent or attorney,
after he has been arrested, or 3d, shall knowingly and willingly
harbor, or conceal the fugitive, knowing he is such, that for
committing either of said offenses, such person shall forfeit and
pay the sum of five hundred dollars, which penalty may be recovered
by the claimant for his own benefit, and reserving also to the
claimant his right of action in damages for the actual injuries he
may have sustained, be they more or less.
The act of 1850, section 7, declares 1st, that any person who
shall knowingly and willingly obstruct, hinder or prevent such
claimant, his agent or attorney
or any person or persons
lawfully assisting him, her or them from arresting such
fugitive,
either with or without process, or 2d, shall
rescue
or attempt to rescue such fugitive, when arrested,
from the custody of the claimant, his agent or attorney
Page 54 U. S. 439
or from the custody of any other person or persons lawfully
assisting, or 3d, shall aid, abet, or assist the person owing
service, directly, or indirectly, to escape from such claimant, his
agent or attorney,
or other person or persons legally
assisting, or 4th, shall harbor or conceal such fugitive
so as to prevent his discovery and arrest after notice or
knowledge of the fact that such person was a fugitive, the person
so offending in either of the cases specified shall be subject to a
fine not exceeding one thousand dollars and imprisonment not
exceeding six months, on conviction by indictment. Secondly, That
the person thus offending, shall forfeit and pay, by way of civil
damages, to the party injured by such illegal conduct, the sum of
one thousand dollars for each fugitive lost, by reason of such
conduct, to be recovered by action of debt.
And the question is whether the foregoing provisions of the act
of 1850 are repugnant to those contained in the act of 1793, so far
as the penalty of five hundred dollars is concerned.
The former statute gives this penalty to the owner in three
cases: for obstructing an arrest; for a rescue; and for harboring
the fugitive. It was given, regardless of the fact, whether the
owner had or had not recovered his slave, and in addition, by the
act of 1793 he might sue for, and recover, the value, if the slave
was lost by the illegal conduct of the defendant, or he might
recover inferior damages, if the slave was obtained.
By the act of 1850, a penalty is inflicted, by way of fine, on
conviction; and imprisonment is added. The prosecution is at the
instance of the United States, with which the owner of the slave is
not necessarily connected, the government taking the penalty
recovered; nor is it of any consequence under this mode of
proceeding whether the owner has or has not recovered his slave,
the offender being equally liable to prosecution for committing any
one of the offenses enumerated in the statute, including the old
ones, found in the act of 1793, and the additional ones, superadded
in that of 1850 and which are indicated by the words in italics.
The recent statute covers every offense found in the former act,
which subjects the offender to a penalty of 500 dollars and
prescribes a new and different penalty, recoverable by indictment,
and is plainly repugnant to the act of 1793.
A seeming difficulty exists in the concluding part of the
seventh section of the new act, which awards civil compensation to
the owner for the loss of each slave if that loss was occasioned by
any one of the illegal acts that are made indictable, but no
recovery under and by force of the statute can be had unless the
owner has lost the slave. The policy of the law is
Page 54 U. S. 440
obvious. On trials, illegal conduct and loss might be fully
established, but then the wide range of proof as to value could
still in effect defeat the suit by a verdict for low damages, and
therefore Congress fixed the value alike in every case of loss, and
took the assessment of damages from the jury. This provision is new
and inconsistent with the 4th section of the act of 1793 in this --
the former act imposes a penalty of five hundred dollars in the
enumerated cases, regardless of any actual loss on the part of the
owner, whereas for the same offenses the act of 1850 allows civil
damages of one thousand dollars for each slave lost, but nothing
when he is regained -- loss being the ground of action;
nevertheless the party injured is left to his common law remedy for
any damage he may have sustained short of actual loss of the slave
by the illegal conduct of the offending party, and for actual loss
also if he prefers and elects that remedy to an action for civil
damages under the statute, but both modes cannot be pursued.
We therefore answer to the first question certified that the act
of 1850 has repealed, so far as relates to the penalty, the fourth
section of the act of 1793.
The next question referred to us for decision presents no
difficulty.
The suit was pending below when the Act of September 18, 1850,
was passed, and was for the penalty of 500 dollars, secured by the
4th section of the act of 1793. As the plaintiff's right to recover
depended entirely on the statute, its repeal deprived the court of
jurisdiction over the subject matter. And in the next place, as the
plaintiff had no vested right in the penalty, the legislature might
discharge the defendant by repealing the law. We therefore answer
to the second question certified that the repeal of the 4th section
of the act of 1793 does bar this action, although pending at the
time of the repeal.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Indiana and on the points or questions on which the judges of the
said circuit court were opposed in opinion and which were certified
to this Court for its opinion agreeably to the act of Congress in
such case made and provided, and was argued by counsel. On
consideration whereof, it is the opinion of this Court:
1st. That the fourth section of the Act of Congress approved on
2 February, A.D. 1793, entitled "An act respecting fugitives from
justice and persons escaping from the
Page 54 U. S. 441
service of their masters" is repealed, so far as relates to the
penalty, by the Act of Congress approved September 18, 1850,
entitled, "An act to amend and supplementary to the act entitled
An act respecting fugitives from justice and persons escaping
from the service of their masters,;" approved February 12,
1793.
2d. That the repeal of the said fourth section will in law bar
the present action, that was pending at the time of the repeal.
Whereupon it is now here ordered and adjudged by this Court that it
be so certified to the said circuit court.
