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.…
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 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.…
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 bar.… 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.…
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 [Great Britain, 1771], … 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
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. [Blackstone ’s Commentaries] … 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 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 he 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
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 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 , … 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
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 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.… 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, 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 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.… [Thus,] 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
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.…
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.… 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.…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.…
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.
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.… It is, therefore, in a just sense, a new and positive right … [and 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
[If] 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 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 the nature and objects of the provisions imperiously require that, to make it effectual, it should be construed to be exclusive of state authority.…
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 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.…
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 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.…
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.…
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 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.…
Fugitives from the more southern States, when endeavoring to escape into Canada, very frequently pass through [other slave states].…. 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.…
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 McLean
As this case involves questions deeply interesting, if not vital, to the permanency of the Union of these States, and as I differ on one point from the opinion of the court, I deem it proper to state my own views on the subject.…
The plaintiff, being a citizen of Maryland, with others, took Margaret Morgan, a colored woman and a slave, by force and violence, without the certificate required by the act of Congress, from the State of Pennsylvania, and brought her to the State of Maryland. By an amicable arrangement between the two States, judgment was entered against the defendant in the court where the indictment was found, and, on the cause’s being removed to the Supreme Court of the State, that judgment, pro forma
The last clause of the second section of the Fourth Article of the Constitution of the United States declares that
“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.”
This clause of the Constitution is now for the first time brought before this Court for consideration.…
Does the provision in regard to the reclamation of fugitive slaves vest the power exclusively in the Federal Government?
This must be determined from the language of the Constitution and the nature of the power.
The language of the provision is general; it covers the whole ground, not in detail, but in principle. The States are inhibited from passing “any law or regulation which shall discharge a fugitive slave from the service of his master,” and a positive duty is enjoined on them to deliver him up, “on claim of the party to whom his service may be due.”
The nature of the power shows that it must be exclusive.
It was designed to protect the rights of the master, and against whom? Not against the State, nor the people of the State in which he resides, but against the people and the legislative action of other States where the fugitive from labor might be found. Under the Confederation , the master had no legal means of enforcing his rights in a State opposed to slavery. A disregard of rights thus asserted was deeply felt in the South; it produced great excitement, and would have led to results destructive of the Union. To avoid this, the constitutional guarantee was essential.
The necessity for this provision was found in the views and feelings of the people of the States opposed to slavery, and who, under such an influence, could not be expected favorably to regard the rights of the master. Now, by whom is this paramount law to be executed? …
I come now to a most delicate and important inquiry in this case, and that is whether the claimant of a fugitive from labor may seize and remove him by force out of the State in which he may be found, in defiance of its laws. I refer not to laws which are in conflict with the Constitution, or the Act of 1793. Such state laws, I have already said, are void. But I have reference to those laws which regulate the police of the State, maintain the peace of its citizens, and preserve its territory and jurisdiction from acts of violence.…
Both the Constitution and the Act of 1793 require the fugitive from labor to be delivered up on claim being made by the party or his agent to whom the service is due. Not that a suit should be regularly instituted; the proceeding authorized by the law is summary and informal. The fugitive is seized by the claimant, and taken before a judge or magistrate within the State, and on proof, parol or written that he owes labor to the claimant, it is made the duty of the judge or magistrate to give the certificate which authorizes the removal of the fugitive to the State from whence he absconded.
The counsel inquire of whom the claim shall be made. And they represent that the fugitive, being at large in the State, is in the custody of no one, nor under the protection of the State, so that the claim cannot be made, and consequently that the claimant may seize the fugitive and remove him out of the State.
A perusal of the act of Congress obviates this difficulty and the consequence which is represented as growing out of it.
The act is framed to meet the supposed case. The fugitive is presumed to be at large, for the claimant is authorized to seize him; after seizure, he is in custody; before it, he was not; and the claimant is required to take him before a judicial officer of the State; and it is before such officer his claim is to be made.
To suppose that the claim is not to be made, and indeed, cannot be, unless the fugitive be in the custody or possession of some public officer or individual is to disregard the letter and spirit of the Act of 1793. There is no act in the statute book more precise in its language and, as it would seem, less liable to misconstruction. In my judgment, there is not the least foundation in the act for the right asserted in the argument, to take the fugitive by force and remove him out of the State.
Such a proceeding can receive no sanction under the act, for it is in express violation of it. The claimant, having seized the fugitive, is required by the act to take him before a federal judge within the State, or a state magistrate within the county, city or town corporate, within which the seizure was made. Nor can there be any pretence that, after the seizure under the statute, the claimant may disregard the other express provision of it by taking the fugitive, without claim, out of the State. But it is said, the master may seize his slave wherever he finds him, if by doing so he does not violate the public peace; that the relation of master and slave is not affected by the laws of the State to which the slave may have fled and where he is found.
If the master has a right to seize and remove the slave without claim, he can commit no breach of the peace by using all the force necessary to accomplish his object.
It is admitted that the rights of the master, so far as regards the services of the slave, are not impaired by this change, but the mode of asserting them, in my opinion, is essentially modified. In the State where the service is due, the master needs no other law than the law of force to control the action of the slave. But can this law be applied by the master in a State which makes the act unlawful?
Can the master seize his slave and remove him out of the State, in disregard of its laws, as he might take his horse which is running at large? This ground is taken in the argument. Is there no difference in principle in these cases?
The slave, as a sensible and human being, is subject to the local authority into whatsoever jurisdiction he may go; he is answerable under the laws for his acts, and he may claim their protection; the State may protect him against all the world except the claim of his master. Should anyone commit lawless violence on the slave, the offender may unquestionably be punished; and should the slave commit murder, he may be detained and punished for it by the State in disregard of the claim of the master. Being within the jurisdiction of a State, a slave bears a very different relation to it from that of mere property.
In a State where slavery is allowed, every colored person is presumed to be a slave, and, on the same principle, in a non-slaveholding State, every person is presumed to be free, without regard to color. On this principle, the States, both slaveholding and non-slaveholding, legislate. The latter may prohibit, as Pennsylvania has done, under a certain penalty, the forcible removal of a colored person out of the State. Is such law in conflict with the Act of 1793?
The Act of 1793 authorizes a forcible seizure of the slave by the master not to take him out of the State, but to take him before some judicial officer within it. The law of Pennsylvania punishes a forcible removal of a colored person out of the State. Now here is no conflict between the law of the State and the law of Congress; the execution of neither law can, by any just interpretation, in my opinion, interfere with the execution of the other; the laws in this respect stand in harmony with each other.
It is very clear that no power to seize and forcibly remove the slave, without claim, is given by the act of Congress. Can it be exercised under the Constitution? Congress have legislated on the constitutional power, and have directed the mode in which it shall be executed. The act, it is admitted, covers the whole ground, and that it is constitutional there seems to be no reason to doubt. Now, under such circumstances, can the provisions of the act be disregarded, and an assumed power set up under the Constitution? This is believed to be wholly inadmissible by any known rule of construction.
The terms of the Constitution are general, and, like many other powers in that instrument, require legislation. In the language of this Court in Martin v. Hunter’s Lessee , …
“the powers of the Constitution are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers as its own wisdom and the public interests should require.”
This Congress have done by the Act of 1793. It gives a summary and effectual mode of redress to the master, and is he not bound to pursue it? It is the legislative construction of the Constitution, and is it not a most authoritative construction? I was not prepared to hear the counsel contend that, notwithstanding this exposition of the Constitution, and ample remedy provided in the act, the master might disregard the act and set up his right under the Constitution. And, having taken this step, it was easy to take another and say that this right may be asserted by a forcible seizure and removal of the fugitive.
This would be a most singular constitutional provision. It would extend the remedy by recaption into another sovereignty, which is sanctioned neither by the common law nor the law of nations. If the master may lawfully seize and remove the fugitive out of the State where he may be found, without an exhibition of his claim, he may lawfully resist any force, physical or legal, which the State, or the citizens of the State, may interpose.
To hold that he must exhibit his claim in case of resistance is to abandon the ground assumed. He is engaged, it is said, in the lawful prosecution of a constitutional right; all resistance, then, by whomsoever made or in whatsoever form, must be illegal. Under such circumstances, the master needs no proof of his claim, though he might stand in need of additional physical power; having appealed to his power, he has only to collect a sufficient force to put down all resistance and attain his object; having done this, he not only stands acquitted and justified, but he has recourse for any injury he may have received in overcoming the resistance.
If this be a constitutional remedy, it may not always be a peaceful one. But if it be a rightful remedy that it may be carried to this extent no one can deny. And if it may be exercised without claim of right, why may it not be resorted to after the unfavorable decision of the judge or magistrate? This would limit the necessity of the exhibition of proof by the master to the single case where the slave was in the actual custody of some public officer. How can this be the true construction of the Constitution? That such a procedure is not sanctioned by the Act of 1793 has been shown. That act was passed expressly to guard against acts of force and violence.
I cannot perceive how anyone can doubt that the remedy given in the Constitution, if, indeed, it give any remedy, without legislation, was designed to be a peaceful one; a remedy sanctioned by judicial authority; a remedy guarded by the forms of law. But the inquiry is reiterated, is not the master entitled to his property? I answer that he is. His right is guarantied by the Constitution, and the most summary means for its enforcement is found in the act of Congress, and neither the State nor its citizens can obstruct the prosecution of this right.
The slave is found in a State where every man, black or white, is presumed to be free, and this State, to preserve the peace of its citizens, and its soil and jurisdiction from acts of violence, has prohibited the forcible abduction of persons of color. Does this law conflict with the Constitution? It clearly does not, in its terms.
The conflict is supposed to arise out of the prohibition against the forcible removal of persons of color generally, which may include fugitive slaves. Prima facie
No conflict can arise between the act of Congress and this State law; the conflict can only arise between the forcible acts of the master and the law of the State. The master exhibits no proof of right to the services of the slave, but seizes him and is about to remove him by force. I speak only of the force exerted on the slave. The law of the State presumes him to be free and prohibits his removal. Now, which shall give way, the master or the State? The law of the State does in no case discharge, in the language of the Constitution, the slave from the service of his master.
It is a most important police regulation. And if the master violate it, is he not amenable? The offense consists in the abduction of a person of color, and this is attempted to be justified upon the simple ground that the slave is property. That a slave is property must be admitted. The state law is not violated by the seizure of the slave by the master, for this is authorized by the act of Congress, but by removing him out of the State by force and without proof of right, which the act does not authorize. Now, is not this an act which a State may prohibit? The presumption, in a non-slaveholding State, is against the right of the master, and in favor of the freedom of the person he claims. This presumption may be rebutted, but until it is rebutted by the proof required in the Act of 1793, and also, in my judgment, by the Constitution, must not the law of the State be respected and obeyed?
The seizure which the master has a right to make under the act of Congress, is for the purpose of taking the slave before an officer. His possession the subject for which it was made.
The certificate of right to the service the subject for which it was made. The certificate of right to the service of the slave is undoubtedly for the protection of the master, but it authorizes the removal of the slave out of the State where he was found to the State from whence he fled, and, under the Constitution, this authority is valid in all the States.
The important point is shall the presumption of right set up by the master, unsustained by any proof or the presumption which arises from the laws and institutions of the State, prevail; this is the true issue. The sovereignty of the State is on one side, and the asserted interest of the master on the other; that interest is protected by the paramount law, and a special, a summary, and an effectual, mode of redress is given. But this mode is not pursued, and the remedy is taken into his own hands by the master.
The presumption of the State that the colored person is free may be erroneous in fact, and, if so, there can be no difficulty in proving it. But may not the assertion of the master be erroneous also, and, if so, how is his act of force to be remedied? The colored person is taken and forcibly conveyed beyond the jurisdiction of the State. This force, not being authorized by the act of Congress nor by the Constitution, may be prohibited by the State. As the act covers the whole power in the Constitution and carries out, by special enactments, its provisions, we are, in my judgment, bound by the act. We can no more, under such circumstances, administer a remedy under the Constitution in disregard of the act than we can exercise a commercial or other power in disregard of an act of Congress on the same subject.
This view respects the rights of the master and the rights of the State; it neither jeopards nor retards the reclamation of the slave; it removes all state action prejudicial to the rights of the master; and recognizes in the State a power to guard and protect its own jurisdiction and the peace of its citizen.
It appears in the case under consideration that the state magistrate before whom the fugitive was brought refused to act. In my judgment, he was bound to perform the duty required of him by a law paramount to any act, on the same subject, in his own State. But this refusal does not justify the subsequent action of the claimant; he should have taken the fugitive before a judge of the United States, two of whom resided within the State.
It may be doubted, whether the first section of the act of Pennsylvania under which the defendant was indicted, by a fair construction, applies to the case under consideration. The decision of the Supreme Court of that State was pro forma , and, of course, without examination. Indeed, I suppose, the case has been made up merely to bring the question before this Court. My opinion, therefore, does not rest so much upon the particular law of Pennsylvania as upon the inherent and sovereign power of a State to protect its jurisdiction and the peace of its citizens in any and every mode which its discretion shall dictate, which shall not conflict with a defined power of the Federal Government.
This cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania, and was argued by counsel, on consideration whereof it is the opinion of this Court that the act of the Commonwealth of Pennsylvania upon which the indictment in this case is founded is repugnant to the Constitution and laws of the United States, and therefore, void, and that the judgment of the Supreme Court of Pennsylvania upon the special verdict found in the case ought to have been that the said Edward Prigg was not guilty. It is, therefore, ordered and adjudged by this Court that the judgment of the said Supreme Court of Pennsylvania be, and the same is hereby, reversed.
And this Court proceeding to render such judgment in the premises as the said Supreme Court of Pennsylvania ought to have rendered, do hereby order and adjudge that judgment upon the special verdict aforesaid be here entered that the said Edward Prigg is not guilty in manner and form as is charged against him in the said indictment, and that he go thereof quit, without day; and that this cause be remanded to the Supreme Court of Pennsylvania with directions accordingly, so that such other proceeding may be had therein as to law and justice shall appertain.
Essential Quotes
“The [Fugitive Slave] 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.”
(Justice Story’s Opinion)
“It is proper to state that we are by no means to be understood … 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.… The States … possesses full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders.”
(Justice Story’s Opinion)
“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.”
(Chief Justice Taney’s Opinion)
“The slave is found in a State where every man, black or white, is presumed to be free, and this State, to preserve the peace of its citizens, and its soil and jurisdiction from acts of violence, has prohibited the forcible abduction of persons of color. Does this law conflict with the Constitution? It clearly does not, in its terms.”
(Justice McLean’s Dissent)