U.S. Supreme Court Prigg v. Pennsylvania, 41 U.S. 16 Pet.
539 539 (1842) Prigg v. Pennsylvania 41 U.S. (16 Pet.) 539 ERROR TO THE SUPREME COURT OF
PENNSYLVANIA Syllabus 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 Houston v.
Moore , 5 Wheat. 1, 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, Sturgis v.
Crowninshield , 4 Wheat. 122, 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, Page 41 U. S. 549 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 Houston v.
Moore , 5 Wheat. 1, 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 Sturgis v.
Crowninshield , 4 Wheat. 122, 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 Page 41 U. S. 635 on the subject; the legislation must be voluntary in both, and
governed by a sense of duty. But I cannot concur in that part of
the opinion of the Court which asserts that the power of
legislation by Congress is exclusive, and that no State can pass
any law to carry into effect the constitutional provision on this
subject although Congress had passed no law in relation to it.
Congress, by the Act of 1793, has legislated on the subject, and
any state law in conflict with that would be void according to the
provisions of the Constitution which declares that the laws of the
United States, which shall be made in pursuance of the
Constitution, shall be the supreme law of the land, anything in the
laws of any State to the contrary notwithstanding. This provision
meets the case of a conflict between Congressional and state
legislation, and implies that such cases may exist, growing out of
the concurrent powers of the two Governments. The provision in the
Constitution under consideration is one under which such
conflicting legislation may arise, and harmony is produced by
making the state law yield to that of the United States. But to
assert that the States cannot legislate on the subject at all in
the absence of all legislation by Congress is, in my judgment, not
warranted by any fair and reasonable construction of the provision.
There is certainly nothing in the terms used in this article, nor
in the nature of the power to surrender the slave, that makes
legislation by Congress exclusive. And if, as seems to be admitted,
legislation is necessary to carry into effect the object of the
Constitution, what becomes of the right where there is no law on
the subject? Should Congress repeal the law of 1793, and pass no
other law on the subject, I can entertain no doubt that state
legislation, for the purpose of restoring the slave to his master
and faithfully to carry into execution the provision of the
Constitution, would be valid. I can see nothing in the provision
itself, nor discover any principle of sound public policy, upon
which such a law would be declared unconstitutional and void. The
Constitution protects the master in the right to the possession and
service of his slave, and, of course, makes void all state
legislation impairing that right, but does not make void state
legislation in affirmance of the right. I forbear enlarging upon
this question, but have barely stated the general grounds upon
which my opinion rests, and principally to guard against the
conclusion that, Page 41 U. S. 636 by my silence, I assent to the doctrine that all legislation on
this subject is vested exclusively in Congress, and that all state
legislation in the absence of any law of Congress is
unconstitutional and void.

															Baldwin, Justice, concurred with the court in reversing the
judgment of the Supreme Court of Pennsylvania on the ground that
the act of the legislature was unconstitutional inasmuch as the
slavery of the person removed was admitted, the removal could not
be kidnaping. But he dissented from the principles laid down by the
court as the grounds of their opinion.

															MR. JUSTICE WAYNE.

															I concur altogether in the opinion of the court, as it has been
given by my brother Story. In that opinion it is decided:

															1. That the provision in the second section of the Fourth
Article of the Constitution, relative to fugitives from service or
labor, confers upon the owner of a fugitive slave the right, by
himself or his agent, to seize and arrest, without committing a
breach of the peace, his fugitive slave, as property, in any State
of the Union, and that no state law is constitutional which
interferes with such right.

															2. That the provision authorizes and requires legislation by
Congress to guard that right of seizure and arrest against all
state and other interference, to make the delivery of fugitive
slaves more effectual when the claims of owners are contested, and
to insure to owners the unmolested transportation of fugitive
slaves, through any of the States, to the State from which they may
have fled.

															3. That the legislation by Congress upon the provision, as the
supreme law of the land, excludes all state legislation upon the
same subject, and that no State can pass any law or regulation, or
interpose such as may have been a law or regulation when the
Constitution of the United States was ratified, to superadd to,
control, qualify, or impede a remedy enacted by Congress for the
delivery of fugitive slaves to the parties to whom their service or
labor is due. Page 41 U. S. 637 4. That the power of legislation by Congress upon the provision
is exclusive, and that no State can pass any law as a remedy upon
the subject, whether Congress had or had not legislated upon
it.

															5. That the act of Congress of the 12th February, 1793, entitled
"an act respecting fugitives from justice, and persons escaping
from the service of their masters," gives a remedy, but does not
exhaust the remedies which Congress may legislate upon the
subject.

															6. That the points so decided are not intended to interfere in
any way, nor do they interfere in any manner, with the police power
in the States to arrest and imprison fugitive slaves, to guard
against their misconduct and depredations, or to punish them for
offenses and crimes committed in the States to which they may have
fled.

															7. These points being so decided and applied to the case before
the Court it follows that the law of Pennsylvania, upon which the
plaintiff is indicted, is unconstitutional, and that the judgment
given by the Supreme Court of Pennsylvania against the plaintiff
must be reversed.

															All of the judges of the Court concur in the opinion that the
law under which the plaintiff in error was indicted is
unconstitutional. All of them concur also in the declaration that
the provision in the Constitution was a compromise between the
slaveholding and the non-slaveholding States to secure to the
former fugitive slaves as property. All of the members of the
court, too, except my brother Baldwin, concur in the opinion that
legislation by Congress to carry the provision into execution is
constitutional, and he contends that the provision gives to the
owners of fugitive slaves all the rights of seizure and removal
which legislation could give, but he concurs in the opinion, if
legislation by Congress be necessary, that the right to legislate
is exclusively in Congress.

															There is no difference, then, among the judges as to the
reversal of the judgment; none in respect to the origin and object
of the provision, or the obligation to exercise it. But differences
do exist as to the mode of execution. Three of the judges have
expressed the opinion that the States may legislate upon the
provision in aid of the object it was intended to secure, and
that Page 41 U. S. 638 such legislation is constitutional when it does not conflict
with the remedy which Congress may enact.

															I believe that the power to legislate upon the provision is
exclusively in Congress. The provision is 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 is due."

															The clause contains four substantive declarations, or two
conditions, a prohibition, and a direction. First, the fugitive
must owe service or labor under the law of the State from which he
had escaped; second, he must have fled from it. The prohibition is
that he cannot be discharged from service in consequence of any law
or regulation of the State in which he may be, and the direction is
affirmative of an obligation upon the States and declarative of a
right in the party to whom the service or labor of a fugitive is
due.

															My object, and the only object which I have in view in what I am
about to say, is to establish the position that Congress has the
exclusive right to legislate upon this provision of the
Constitution. I shall endeavor to prove it by the condition of the
States when the Constitution was formed, by references to the
provision itself, and to the Constitution generally.

															Let it be remembered that the conventioners who formed the
Constitution were the representatives of equal sovereignties; that
they were assembled to form a more perfect union than then existed
between the States under the confederacy; that they cooperated to
the same end; but that they were divided into two parties, having
antagonist interests in respect to slavery.

															One of these parties, consisting of several States, required as
a condition, upon which any Constitution should be presented to the
States for ratification, a full and perfect security for their
slaves as property when they fled into any of the States of the
Union; the fact is not more plainly stated by me than it was put in
the convention. The representatives from the non-slaveholding
States assented to the condition. The provision under review was
proposed and adopted by the unanimous vote of the convention. It,
with an allowance of a certain portion of slaves with Page 41 U. S. 639 the whites for representative population in Congress, and the
importation of slaves from abroad for a number of years, were the
great obstacles in the way of forming a Constitution. Each of them
was equally insisted upon by the representatives from the
slaveholding States; and, without all of them being provided for,
it was well understood that the convention would have been
dissolved without a Constitution's being formed. I mention the
facts as they were; they cannot be denied. I have nothing to do,
judicially, with what a part of the world may think of the attitude
of the different parties upon this interesting topic. I am
satisfied with what was done, and revere the men, and their motives
for insisting, politically, upon what was done. When the three
points relating to slaves had been accomplished, every impediment
in they way of forming a Constitution was removed. The agreement
concerning them was called, in the convention, a compromise; the
provision in respect to fugitives from service or labor was called
a guarantee of a right of property in fugitive slaves, wherever
they might be found in the Union. The Constitution was presented to
the States for adoption with the understanding that the provisions
in it relating to slaves were a compromise and guarantee, and, with
such an understanding, in every State it was adopted by all of
them. Not a guarantee merely in the professional acceptation of the
word, but a great national engagement in which the States
surrendered a sovereign right, making it a part of that instrument
which was intended to make them one nation within the sphere of its
action. The provision, then, must be interpreted by those rules of
construction assented to by all civilized nations as obligatory in
ascertaining the rights growing out of these agreements. We shall
see directly how these rules bear upon the question of the power of
legislation upon this subject's being exclusively in Congress, and
why the States are excluded from legislating upon it.

															The prohibition upon the States to discharge fugitive slaves is
absolute.

															The provision, however, does not contain, in detail, the manner
of asserting the right it was meant to secure. Nor is there in it
any expressed power of legislation, nor any expressed prohibition
of state legislation. But it does provide that delivery of a
fugitive shall be made on the claim of the owner -- that the
fugitive Page 41 U. S. 640 slave, owing service and labor in the State from which he fled
and escaping therefrom, shall be decisive of the owner's right to a
delivery. It does not, however, provide the mode of proving that
service and labor is due, in a contested case, nor for any such
evidence of the right, when it has been established, as will insure
to an owner the unmolested transportation of the fugitive, through
other States, to the State from which he fled. But the right to
convey is the necessary consequence of a right to delivery; the
latter would be good for nothing without the former. Proof of
ownership gives both, if it gives either or anything, and yet the
right might be, in the larger number of instances, unavailing if it
were not certified by some official document that the right had
been established. A certificate from an officer authorized to
inquire into the facts is the easiest way to secure the right to
its contemplated intent. It was foreseen that claims would be made
which would be contested; some tribunal was necessary to decide
them, and to authenticate the fact that a claim had been
established. Without such authentication, the contest might be
renewed in other tribunals of the State in which the fact had been
established and in those of the other States through which the
fugitive might be carried on his way to the State from which he
fled. Such a certificate too, being required, protects persons who
are not fugitives from being seized and transported; it has the
effect of securing the benefit of a lawful claim and of preventing
the accomplishment of one that is false. Such a certificate, to
give a right to transport a fugitive slave through another State, a
State cannot give; its operation would be confined to its own
boundaries, and would be useless to assert the right in another
sovereignty. This analysis of the provision is given to show that
legislation was contemplated to carry it fully into effect in many
of the cases that might occur, and to prevent its abuse when
attempts might be made to apply it to those who were not fugitives.
And it brings me to the point I have asserted -- that Congress has
the exclusive right to legislate upon the provision.

															Those who contend that the States may legislate in aid of the
object of the provision, admit that Congress can legislate to the
full extent to carry it into execution. There is, then, no
necessity for the States to legislate. This is a good reason why
they should not Page 41 U. S. 641 legislate, and that is was intended that they should not do so,
for legislation by Congress makes the mode of asserting the right
uniform throughout the Union, and legislation by the States would
be as various as the separate legislative will and policy of the
different States might choose to make it. Certainly such an
interest as the Constitution was intended to secure we may well
think the framers of the Constitution intended to provide for by a
uniform law. I admit, however, that such considerations do not
necessarily exclude the right of the States to legislate. The
argument in favor of the right is that the States are not, in
express terms, prohibited from legislating, and that the exclusion
is not necessarily implied. I further admit, if it be not
necessarily implied, that the right exists. Such is the rule in
respect to the right of legislation by the States in all cases
under the Constitution when the question of a right to legislate in
merely such.

															My first remark is, and I wish it to be particularly observed,
that the question is not one only of the right of the States to
legislate in aid of this provision, unconnected with other
considerations bearing directly upon the question. The true
question in the case is by what rules shall the compromise or
guarantee be construed so that the obligations and rights of the
States under the provision may be ascertained and secured.

															It is admitted that the provision raises what is properly termed
a perfect obligation upon all of the States to abstain from doing
anything which may interfere with the rights secured. Will this be
so if any part of what may be necessary to discharge the obligation
is reserved by each State, to be done as each may think proper? The
obligation is common to all of them to the same extent. Its object
is to secure the property of some of the States, and the individual
rights of their citizens in that property. Shall, then, each State
be permitted to legislate in its own way, according to its own
judgment and their separate notions, in what manner the obligation
shall be discharged to those States to which it is due? To permit
some of the States to say to the others how the property included
in the provision was to be secured by legislation, without the
assent of the latter, would certainly be to destroy the equality
and force of the guarantee and the equality of the States by which
it was made. This was Page 41 U. S. 642 not anticipated by the representatives of the slaveholding
States in the convention, nor could it have been intended by the
framers of the Constitution.

															Is it not more reasonable to infer, as the States were forming a
government for themselves, to the extent of the powers conceded in
the Constitution, to which legislative power was given to make all
laws necessary and proper to carry into execution all powers vested
in it -- that they meant that the right for which some of the
States stipulated, and to which all acceded, should, from the
peculiar nature of the property in which only some of the States
were interested, be carried into execution by that department of
the General Government in which they were all to be represented --
the Congress of the United States.

															But is not this power of legislation by the States upon this
provision a claim for each to use its discretion in interpreting
the manner in which the guarantee shall be fulfilled?

															Are there no rules of interpretation, founded upon reason and
nature, to settle this question and to secure the rights given by
the provision better than the discretion of the parties to the
obligation? Has not experience shown that those rules must be
applied to conventions between nations in order that justice may be
done? All civilized nations have consented to be bound by them, and
they are a part of the laws of nations. Is not one of those rules
the maxim that neither one or the other of the interested or
contracting powers has a right to interpret his act or treaty at
his pleasure? Such is the rule in respect to the treaties and
conventions of nations foreign to each other. It applies with equal
necessity and force to States united in one General Government.
Especially to States making a provision in respect to property
peculiar to some of them which has become so interwoven with their
institutions and their representation in the General Government of
all of them that the right to such property must be maintained and
guarded in order to preserve their separate existence and to keep
up their constitutional representation in Congress. Such cannot be
the case unless there is uniformity in the law for asserting the
right to fugitive slaves, and if the States can legislate, as each
of them may think it should be done, a remedy by which the right of
property in fugitive slaves is to be ascertained and finally
concluded. Nor does it matter that the Page 41 U. S. 643 rule to which I have adverted as being exclusive of the right of
the States to legislate upon the provision does not appear in it.
It is exactly to such cases that the rule applies, and it must be
so applied unless the contrary has been expressly provided. The
mode of its application is as authoritative as the rule. The rule,
too, applies to the provision, without any conflict with the other
rule that the States may legislate in all cases when they are not
expressly or impliedly prohibited by the Constitution. The latter
rule is in no way trenched upon by excluding the States from
legislating in this case. This provision is the only one in the
Constitution in which a security for a particular kind of property
is provided -- provided, too, expressly against the interference by
the States in their sovereign character. The surrender of a
sovereign right carries with it all its incidents. It differs from
yielding a participation to another government in a sovereign
right. In the latter, both may have jurisdiction. The State
yielding the right, retaining jurisdiction to the extent of doing
nothing repugnant to the exercise of the right by the government to
which it has been yielded.

															But it is said, all that is contended for is that the States may
legislate to aid the object, and that such legislation will be
constitutional if it does not conflict with the remedies which
Congress may enact. This is a cautious way of asserting the right
in the States, and it seems to impose a limitation which makes it
unobjectionable. But the reply to it is that the right to legislate
a remedy implies so much indefinite power over the subject, and
such protracted continuance as to the mode of finally determining
whether a fugitive owes service and labor that the requirements of
the remedy, without being actually in conflict with the provision
or the enactments of Congress, might be oppressive to those most
interested in the provision, by interposing delays and expenses
more costly than the value of the fugitive sought to be reclaimed.
Ordinarily, and when rightly understood, it is true that the abuse
of a thing is no argument against its correctness or its use; but
that suggestion can only be correctly made, in cases in support of
a right or power abstractly and positively right, and which had
been abused under the pretence of using it, or where the proper use
has been mistaken. In matters of government, however, a power
liable to be abused is always a good reason Page 41 U. S. 644 for withholding it. It is the reason why the powers of the
United States, under the Constitution, are so cautiously given; why
the express prohibitions upon the States not to legislate in
certain cases were expressed; why the limitation upon the former
that the powers not granted are reserved to the States, as it is
expressed in the amendment to the Constitution. But, in truth, any
additional legislation in this case by a State, acting as a remedy,
in aid of the remedy given by the Constitution and by Congress,
would be, in practice, in conflict with the latter if it be a
process differing from it, though it might make the mode of
recovering a fugitive easier than the former, and much more so when
it made it more difficult. The right to legislate a remedy implies
the ability to do either, and it is because it does so, and may be
the latter, that I deny all right in the States to legislate upon
this subject unless it be to aid, by mere ministerial acts, the
protection of an owner's right to a fugitive slave, the prevention
of all interference with it by the officers of a State or its
citizens or an authority to its magistrates to execute the law of
Congress, and such legislation over fugitives as may be strictly of
a police character.

															Admit the States to legislate remedies in this case, besides
such as are given by Congress, and there will be no security for
the delivery of fugitive slaves in half of the States of the Union.
Such was the case when the Constitution was adopted. The States
might legislate in good faith, according to their notions how such
a right of property should be tried. They have already done so, and
the act of Pennsylvania now under consideration shows that the
assertion of a right to a fugitive slave is burdened by provisions
entailing expenses disproportioned to his value, and that it is
only to be asserted by arraying against the claim all of those
popular prejudices which, under other circumstances, would be
proper feelings against slavery.

															But the propriety of the rule of interpretation which I have
invoked to exclude the States from legislating upon this provision
of the Constitution becomes more obvious when it is remembered that
the provision was not intended only to secure the property of
individuals, but that, through their rights, the institutions of
the States should be preserved so long as any one of the States
chose to continue slavery as a part of its policy. Page 41 U. S. 645 The subject has usually been argued as if the rights of
individuals only were intended to be secured, and as if the
legislation by the States would only act upon such rights.

															The framers of the Constitution did not act upon such narrow
grounds; they were engaged in forming a government for all of the
States, by concessions of sovereign rights from all, without
impairing the actual sovereignty of any one, except within the
sphere of what was conceded. One great object was that all kinds of
property, as well that which was common in all of the States as
that which was peculiar to any of them, should be protected in all
of the States as well from any interference with it by the United
States as by the States. Experience had shown that, under the
Confederacy, the reclamation of fugitive slaves was embarrassed and
uncertain, and that they were yielded to by the States only from
comity; it was intended that it should be no longer so. The policy
of the different States, some of them contiguous, had already
become marked and decided upon the subject of slavery; there was no
doubt it would become more so. It was foreseen that, unless the
delivery of fugitive slaves was made a part of the Constitution,
and the right of the States to discharge them from service was
taken away, that some of the States would become the refuge of
runaways, and, of course that, in proportion to the facility and
certainty of any State's being a refuge, so would the right of
individuals and the institutions of the slaveholding States be
impaired. The latter were bound, when forming a General Government
with the other States, under which there was to be a community of
rights and privileges for all citizens in the several States, to
protect that property of their citizens which was essential to the
preservation of their state Constitutions. If this had not been
done, all of the property of the citizens would have been protected
in every State except that which was the most valuable in a number
of them. In such a case, the States would have become members of
the Union upon unequal terms. Besides, the property of an
individual is not the less his because it is in another State than
that in which he lives; it continues to be his, and forms a part of
the wealth of his State. The provision, then, in respect to
fugitive slaves only comprehended within the general rule a species
of property not within it before. By doing so, the right of
individuals, and that of the Page 41 U. S. 646 States in which slavery was continued were preserved. It
remained in the States as a part of that wealth from which
contributions were to be raised by taxes laid with the consent of
the owners to meet the wants of the State as a body politic. If
this be so, upon what principle shall the States act by their
legislation upon property which is national as well as individual,
and direct the mode, when it is within their jurisdiction, without
the consent of the owners, and without the fault of the States
where the owners reside, how the right of property should be
ascertained and determined. The case of a fugitive slave is not
like that of a contest for other property, to be determined between
two claimants by the remedy given by the tribunals of the State
where the property may be. It is not a controversy between two
persons, claiming the right to a thing, but the assertion by one
person of a right of property in another, to be determined upon
principles peculiar to such relation. If the provision had not been
introduced into the Constitution, the States might have adjudged
the right in the way they pleased; but, having surrendered the
right to discharge, they are not now to be allowed to assume a
right to legislate, to try the obligation of a fugitive to
servitude, in any other way than in conformity to the principles
peculiar to the relation of master and slave. Their legislation, in
the way of remedy, would bear upon state as well as individual
rights, and I am sure, when the Constitution was formed, the States
never intended to give any such right to each other. If it has such
an effect, I think I may rightly conclude that legislation in the
case before us is forbidden to the States.

															But I have a further reason for the conclusion to which I have
come upon this point to which I cannot see that an answer can be
given.

															The provision contemplates, besides the right of seizure by the
owner, that a claim may be made, when a seizure has not been
effected or afterwards, if his right shall be contested; that the
claim shall be good upon the showing by the claimant that the
person charged as a fugitive owes service or labor under the laws
of the State from which he fled.

															The prohibition in the provision is that he shall not be
"discharged in consequence of any law or regulation of a State"
where he may be. If then, in a controverted case, a person Page 41 U. S. 647 claimed as a fugitive shall be discharged, under a remedy
legislated by a State, to try the fact of his owing service or
labor, is he not discharged under a law or regulation of a State?
It is no answer to this question to say that the discharge was not
made in virtue of any law discharging the fugitive from servitude,
and that the discharge occurred only from the mode of trial to
ascertain if he owed service and labor. For that is to assume that
provision only prevented discharges from being made by the States
by enactment or law declaring that fugitive slaves might be
discharged. The provision will not admit of such an interpretation.
Nor is it any answer to say that state regulations to ascertain
whether a fugitive owes service or labor are distinguishable from
such as, directly or by construction, would lead to his discharge;
for if a discharge be made under one or the other -- whether the
discharge be right or wrong -- it is a discharge under the
regulation of a State.

															I understood the provision to mean, and when its object and the
surrender by the States of the right to discharge are kept in mind,
its obvious meaning to everyone must be, that the States are not
only prohibited from discharging a fugitive from service by a law,
but that they shall not make or apply regulations to try the
question of the fugitive owing service. The language of the
provision, is, "no person, &c., shall, in consequence of any
law or regulation therein," be discharged from such service or
labor. The words "in consequence," meaning the effect of a cause,
certainly embrace regulations to try the right of property as well
as laws directly discharging a fugitive from service.

															If this be not so, the States may regulate the mode of an
owner's seizing of a fugitive slave, prohibiting it from being done
except by warrant and by an officer, thus denying to an owner the
right to use a casual opportunity to repossess himself of this kind
of property, which there is a right to do in respect to all other
kinds of property where not in the possession of some one else. It
may regulate the quantity and quality of the proof to establish the
right of an owner to a fugitive, and give compensatory and punitory
damages against a claimant, if his right be not established
according to such proof. It might limit the trial to particular
times and courts, give appeals from one to other courts, and
protract the ultimate decision until the value in controversy Page 41 U. S. 648 was exceeded by the cost of establishing it. Such rights of
legislation in the States to try a right of property in a fugitive
slave are surely inconsistent with that security which Judge
Iredell told the people of North Carolina in the convention that
the Constitution gave to them for their slaves when they fled into
other States. Speaking of this clause of the Constitution, he
says,

															"In some of the northern States, they have emancipated all of
their slaves; if any one of our slaves go there and remain there a
certain time, they would, by the present laws, be entitled to their
freedom, so that their masters could not get them again; this would
be extremely prejudicial to the inhabitants of the southern States;
and, to prevent it, this clause is inserted in the
Constitution."

															To the same purpose, and with more positiveness, Charles
Cotesworth Pinckney said to the people of South Carolina, in the
convention of that State, "we have obtained a right to recover our
slaves in whatever part of America they may take refuge; which is a
right we had not before."

															But, further, does not the language of this provision, in the
precise terms used, "shall not be discharged from such service or
labor," show that the State surrendering the right to discharge,
meant to exclude themselves from legislating a mode of trial,
which, from the time it would take, would be a qualified or
temporary discharge to the injury of the owner? Would not a
postponement of the trial of a fugitive owing service or labor for
one month be a loss to the owner of his service, equivalent to a
discharge for that time? And if a State can postpone, by
legislation, the trial for one month, may it not do so for a longer
time? And whether it be for a longer or a shorter time, is it not a
discharge from service for whatever time it may be? It is no answer
to this argument to say that time is necessarily involved in the
prosecution of all rights. The question here is not as to a time
being more or less necessary, but as to the right of a State, by
regulations to try the obligation of a fugitive to service or
labor, to fix in its discretion the time it may take.

															The subject might be further discussed and illustrated by
arguments equally cogent with those already given. But I forbear.
For the foregoing reasons, in addition to those given in the
opinion of the Court, I am constrained to come to the conclusion
that the right of legislating upon that clause in the
Constitution Page 41 U. S. 649 preventing the States from discharging fugitive slaves is
exclusively in the Congress of the United States. I am as little
inclined as anyone can be, to deny, in a doubtful case, a right of
legislation in the States; but I cannot concede that it exists,
under the Constitution, in a case relating to the property of some
of the States in which the others have no interest, and whose
legislators, from the nature of the subject and the human mind in
relation to it, cannot be supposed to be best fitted to secure the
right guarantied by the Constitution.

															I had intended to give an account of the beginning and progress
of the legislation of the States upon this subject, but my remarks
are already so much extended that I must decline doing so. It would
have shown, perhaps, as much as any other instance, how a mistaken,
doubtful, and hesitating exercise of power, in the commencement
becomes, by use, a conviction of its correctness. It would also
have shown that the legislation of the States in respect to
fugitive slaves, and particularly that which has most embarrassed
the recovery of fugitive slaves, has been in opposition to an
unbroken current of decisions in the courts of the States and those
of the United States. Not a point has been decided in the cause now
before this Court which has not been ruled in the courts of
Massachusetts, New York, and Pennsylvania, and in other state
courts. Judges have differed as to some of them, but the courts of
the States have announced all of them with the consideration and
solemnity of judicial conclusion. In cases, too, in which the
decisions were appropriate, because the points were raised by the
record.

															I consider the point I have been maintaining more important than
any other in the opinion of the Court. It removes those causes
which have contributed more than any other to disturb that harmony
which is essential to the continuance of the Union. The framers of
the Constitution knew it to be so, and inserted the provision in
it. Hereafter, they cannot occur, if the judgment of this Court in
this cause shall meet with the same patriotic acquiescence which
the tribunals of the States and the people of the States have
heretofore accorded to its decisions. The recovery of fugitive
slaves will hereafter be exclusively regulated by the Constitution
of the United States, and the acts of Congress. Page 41 U. S. 650 Apart from the position that the States may legislate in all
cases where they are not expressly prohibited or by necessary
implication, the claim for the States to legislate is mainly
advocated upon the ground that they are bound to protect free
blacks and persons of color residing in them from being carried
into slavery by any summary process. The answer to this is that
legislation may be confined to that end, and be made effectual,
without making such a remedy applicable to fugitive slaves. There
is no propriety in making a remedy to protect those who are free
the probable means of freeing those who are not so. It is also said
the States may aid, by remedies, the acts of Congress when they are
not in conflict with them. I reply, Congress has full power to
enact all that such aid could give, and if experience shows any
deficiency in its enactments, Congress will no doubt supply it. If
there are not now agencies enough to make the assertion of the
right to fugitives convenient to their owners, Congress can
multiply them. But if it should not be done, better is it that the
inconvenience should be borne than that the States should be
brought into collision upon this subject, as they have been, and
that they should attempt to supply deficiencies upon their separate
views of what the remedies should be to recover fugitive slaves
within their jurisdictions.

															I have heard it suggested also, as a reason why the States
should legislate upon this subject, that Congress may repeal the
remedy it has given, and leave the provision unaided by
legislation, and that then the States might carry it into
execution. Be it so, but the latter is not needed, for though
legislation by Congress supports the rights intended to be secured,
there is energy enough in the Constitution, without legislation
upon this subject, to protect and enforce what it gives.

															MR. JUSTICE DANIEL.

															Concurring entirely, as I do, with the majority of the Court in
the conclusions they have reached relative to the effect and
validity of the statute of Pennsylvania now under review, it is
with unfeigned regret that I am constrained to dissent from some of
the principles and reasonings which that majority, in passing to
our common conclusions, have believed themselves called on to
affirm. Page 41 U. S. 651 In judicial proceedings, generally that has been deemed a safe
and prudent rule of action which involves no rights or questions
not necessary to be considered, but leaves these for adjudication
where and when only they shall be presented directly and
unavoidably, and when surrounded with every circumstance which can
best illustrate their character. If, in ordinary questions of
private interest, this rule is recommended by considerations of
prudence and accuracy and justice, it is surely much more to be
observed when the subject to which it is applicable is the great
fundamental law of the Confederacy, every clause and article of
which affects the polity and the acts of States.

															Guided by the rule just mentioned, it seems to me that the
regular action of the Court in this case is limited to an
examination of the Pennsylvania statute, to a comparison of its
provisions with the third clause of the Fourth Article of the
Constitution, and with the act of Congress of 1793, with which the
law of Pennsylvania is alleged to be in conflict, and that, to
accomplish these purposes, a general definition or contrast of the
powers of the state and Federal Governments was neither requisite
nor proper. The majority of my brethren, in the conscientious
discharge of their duty, have thought themselves bound to pursue a
different course, and it is in their definition and distribution of
state and federal powers, and in the modes and times they have
assigned for the exercising those powers, that I find myself
compelled to differ with them.

															That portion of the Constitution which provides for the recovery
of fugitive shares is the third clause of the second section of the
Fourth Article, and is in these words:

															"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 herein, 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 paramount authority of this clause in the Constitution to
guarantee to the owner the right of property in his slave, and the
absolute nullity of any state power, directly or indirectly, openly
or covertly, aimed to impair that right, or to obstruct its
enjoyment, I admit, nay, insist upon, to the fullest extent. I
contend, moreover that the Act of 1793, made in aid of this clause
of the Constitution and for its enforcement, so far as it conforms
to the Constitution, is the supreme law to the States; and
cannot Page 41 U. S. 652 be contravened by them without a violation of the Constitution.
But the majority of my brethren, proceeding beyond these positions,
assume the ground that the clause of the Constitution above quoted,
as an affirmative power granted by the Constitution, is essentially
an exclusive power in the Federal Government, and consequently that
any and every exercise of authority by the States at any time,
though undeniably in aid of the guarantee thereby give, is
absolutely null and void.

															Whilst I am free to admit the powers which are exclusive in the
Federal Government, some of them became so denominated by the
express terms of the Constitution, some because they are prohibited
to the States, and others because their existence, and much more,
their practical exertion by the two governments, would be
repugnant, and would neutralize, if they did not conflict with and
destroy, each other; I cannot regard the third clause of the Fourth
Article as falling either within the definition or meaning of an
exclusive power. Such a power I consider as originally and
absolutely and at all times incompatible with partition or
association; it excludes everything but itself.

															There is a class of powers, originally vested in the States,
which, by the theory of the Federal Government, have been
transferred to the latter; powers which the Constitution of itself
does not execute, and which Congress may or may not enforce, either
in whole or in part, according to its views of policy or necessity,
or as it may find them for the time beneficially executed or
otherwise under the state authorities. These are not properly
concurrent, but may be denominated dormant powers in the Federal
Government; they may at any time be awakened into efficient action
by Congress, and from that time, so far as they are called into
activity, will, of course, displace the powers of the States. But
should they again be withdrawn or rendered dormant, or should their
primitive exercise by the States never be interfered with by
Congress, could it be properly said that, because they potentially
existed in Congress, they were therefore denied to the States? The
prosperity, the necessities, of the country and the soundest rules
of constitutional construction appear to me to present a decided
negative to this inquiry. Nay, I am prepared to affirm that, even
in instances wherein Congress may have legislated, legislation by a
State which is strictly ancillary would not be unconstitutional or
improper. Page 41 U. S. 653 The interpretation for which I contend cannot be deemed a
novelty in this Court, but rests upon more than one of its
decisions upon the constitutional action of state authorities. In
the case of Sturgis v. Crowninshield, which brought in
question the right of the States to pass insolvent or bankrupt
laws, Chief Justice Marshall holds the following doctrine (4 Wheat. 17 U. S.
192 -3):

															"The counsel for the plaintiff contend that the grant of this
power to Congress, without limitation, takes it entirely from the
States. In support of this proposition, they argue that every power
given to Congress is necessarily supreme, and if, from its nature
or from the words of the grant, it is apparently intended to be
exclusive, it is as much so as if they were expressly forbidden to
exercise it. These propositions have been enforced and illustrated
by many arguments drawn from different parts of the Constitution.
That the power is both unlimited and supreme is not questioned;
that its is exclusive is denied by the counsel for the defendant.
In considering this question, it must be recollected that, previous
to the formation of the new Constitution, we were divided into
independent States, united for some purposes, but in most respects
sovereign. These States could exercise almost every legislative
power, and, amongst others, that of passing bankrupt laws. When the
American people created a National Legislature with certain
enumerated powers, it was neither necessary nor proper to define
the powers retained by the States. These powers remain as they were
before the adoption of the Constitution, except so far as they may
be abridged by that instrument. In some instances, as in making
treaties, we find an express prohibition, and this shows the sense
of the convention to have been that the mere grant of a power to
Congress did not imply a prohibition on the States to the exercise
of the same power."

															Again, p. 17 U. S.
198 ,

															"it does not appear to be a violent construction of the
Constitution, and is certainly a convenient one, to consider the
powers of the States as existing over such cases as the laws of the
Union do not reach. Be this as it may, the power of Congress may be
exercised or declined as the wisdom of that body shall decide. It
is not the mere existence of the power, but its exercise, which is
incompatible with the exercise of the same power by the States. It
has been said that Congress has exercised this power, and, by doing
so, has extinguished the power of the States, which cannot Page 41 U. S. 654 be revived by repealing the law of Congress. We do not think so.
If the right of the States is not taken away by the mere grant of
that power to Congress, it cannot be extinguished; it can only be
suspended by enacting a general bankrupt law. The repeal of that
cannot, it is true, confer the power on the States, but it removes
a disability to its exercise which was created by the act of
Congress."

															In the case of Houston v.
Moore , 6 Wheat. 1, 18 U. S. 48 , the
following doctrine was held by Mr. Justice Story, and in accordance
with the opinion of the Court in that case.

															"The Constitution containing a grant of powers, in many
instances similar to those already existing in the state
governments, and some of these being of vital importance also to
state authority and state legislation, it is not to be admitted
that a mere grant of powers in affirmative terms to Congress, does per se transfer an exclusive sovereignty in such subjects
to the latter; on the contrary, a reasonable interpretation of that
instrument necessarily leads to the conclusion that the powers so
granted are never exclusive of similar powers existing in the
States except where the Constitution has, in express terms, given
an exclusive power to Congress, or the exercise of a like power is
prohibited to the States. The example of the first class is to be
found in the exclusive legislation delegated to Congress over
places purchased by the consent of the legislature of the State in
which the same shall be, for forts, arsenals, dock-yards, &c.;
of the second class, the prohibition of a State to coin money or
emit bills of credit; of the third class, as this Court have
already held, is the power to establish an uniform rule of
naturalization, and the delegation of admiralty and maritime
jurisdiction. In all other cases not falling within the classes
already mentioned, it seems unquestionable that the States retain
concurrent authority with Congress not only under the Eleventh
Amendment of the Constitution, but upon the soundest principles of
general reasoning. There is this reserve, however, that, in cases
of concurrent authority, where the laws of the States and of the
Union are in direct and manifest collision on the same subject,
those of the Union, being the supreme law of the land, are of
paramount authority, and the state laws, so far, and so far only,
as such incompatibility exists, must necessarily yield. Such are
the general principles by which my judgment is guided in Page 41 U. S. 655 every investigation of constitutional points. They commend
themselves by their intrinsic equity, and have been amply justified
by the great men under whose guidance the Constitution was framed,
as well as by the practice of the government of the Union. To
desert them would be to deliver ourselves over to endless doubts
and difficulties, and probably to hazard the existence of the
Constitution itself."

															In the case or the City of New York v.
Miln , 11 Pet. 102, Mr. Justice Barbour, in the
delivering the opinion of the Court, lays down the following
position (p. 36 U. S. 137 ),
as directly deducible from the decision in Gibbons v.
Ogden , 7 Wheat. 204, and Brown v.
Maryland , 12 Wheat. 419:

															"Whilst a State is acting within the legitimate scope of its
power as to the end to be attained, it may use whatever means,
being appropriate to that end it may think fit, although they be
the same, or so nearly the same as scarcely to be distinguished
from those adopted by Congress acting under a different power,
subject only to this limitation -- that, in the event of collision,
the law of the State must yield to the law of Congress. The Court
must be understood, of course, as meaning that the law of Congress
is passed upon a subject within the sphere of its power."

															In the same case, the following language is held by Mr. Justice
Thompson (p. 25 U. S.
145 ):

															"In the leading cases upon this question where the state law has
been held to be constitutional, there has been an actual conflict
between the legislation of Congress and that of the States upon the
right drawn in question, and in all such cases, the law of Congress
is supreme. But in the case now before the Court, no such conflict
arises; Congress has not legislated on this subject in any manner
to affect the question."

															And again (p. 25 U. S. 146 ),
it is said by the same judge:

															"It is not necessary in this case to fix any limits upon the
legislation of Congress and of the States on this subject or to say
how far Congress may, under the power to regulate commerce, control
state legislation in this respect. It is enough to say that,
whatever the power of Congress may be, it has not been exercised so
as in any manner to conflict with the state law, and if the mere
grant of the power to Congress does not necessarily imply a
prohibition of the States to exercise the power, until Congress
assumes the power to exercise it, no objection on that ground can
arise to this law. " Page 41 U. S. 656 Here, then, are recognitions, repeated and explicit, of the
propriety, utility and regularity of state action, in reference to
powers confessedly vested in the General Government, so long as the
latter remains passive or shall embrace within its own action only
a portion of its powers, and that portion not comprised in the
proceedings of the state government, and so long as the States
shall neither conflict with the measures of the Federal Government,
nor contravene its policy. From these recognitions, it must follow
by necessary consequence that powers vested in the Federal
Government which are compatible with the modes of execution just
adverted to cannot be essentially and originally, nor practically,
exclusive powers, for whatever is exclusive utterly forbids, as has
been previously observed, all partition or association. I hold,
then that the States can establish proceedings which are in their
nature calculated to secure the rights of the slaveholder
guarantied to him by the Constitution; as I shall attempt to show
that those rights can never be so perfectly secured as when the
States shall, in good faith, exert their authority to assist in
effectuating the guarantee given by the Constitution. Fugitives
from service, in attempting to flee either to the non-slaveholding
States or into the Canadas, must, in many instances, pass the
intermediate States before they can attain to the point they aim
at.

															If there is a power in the States to authorize and order their
arrest and detention for delivery to their owners, not only will
the probabilities of recovery be increased by the performance of
duties enjoined by law upon the citizens of those States, as well
private persons as those who are officers of the law, but the
incitements of interest, under the hope of reward, will, in a
certain class of persons, powerfully cooperate to the same ends.
But let it be declared that the rights of arrest and detention,
with a view of restoration to the owner, belong solely to the
Federal Government, exclusive of the individual right of the owner
to seize his property, and what are to be the consequences? In the
first place, whenever the master, attempting to enforce his right
of seizure under the Constitution, shall meet with resistance, the
inconsiderable number of federal officers in a State and their
frequent remoteness from the theatre of action must in numerous
instances at once defeat his right of property and deprive him Page 41 U. S. 657 also of personal protection and security. By the removal of
every incentive of interest in state officers or individuals, and
by the inculcation of a belief that any cooperation with the master
becomes a violation of law, the most active and efficient auxiliary
which he could possibly call to his aid is entirely neutralized.
Again, suppose that a fugitive from service should have fled to a
State where slavery does not exist, and in which the prevalent
feeling is hostile to that institution; there might nevertheless in
such a community be a disposition to yield something to an
acknowledged constitutional right -- something to national comity,
too, in the preservation of that right; but let it once be
proclaimed from this tribunal that any concession by the States
towards the maintenance of such a right is a positive offense, the
violation of a solemn duty, and I ask what pretext more plausible
could be offered to those who are disposed to protect the fugitive,
or to defeat the rights of the master? The Constitution and the act
of Congress would thus be converted into instruments for the
destruction of that which they were designed especially to
protect.

															But it is said that, if the States can legislate at all upon the
subject of fugitives from service, they may, under the guise of
regulations for securing the master's right, enact laws which, in
reality, impair or destroy them. This, like every other argument
drawn from the possible abuse of power, is deemed neither fair nor
logical. It is equally applicable to the exercise of power by the
federal as by the state governments, and might be used in
opposition to all power and all government, as it is undeniable
that there is no power and no government which is not susceptible
of great abuses. But those who argue from such possible or probable
abuses against all regulations by the States touching this matter
should dismiss their apprehensions under the recollection that,
should those abuses be attempted, the corrective may be found, as
it is now about to be applied to some extent, in the controlling
constitutional authority of this Court.

															It has been said that the States, in the exercise of their
police powers, may arrest and imprison vagrants or fugitives who
may endanger the peace and good order of society; and by that means
contribute to the recovery by the master of his fugitive slave. It
should be recollected, however that the police power of a State has
no natural affinity with her exterior relations, nor with those Page 41 U. S. 658 which she sustains to her sister States, but is confined to
matters strictly belonging to her internal order and quiet. The
arrest or confinement or restoration of a fugitive, merely because
he is such, falls not regularly within the objects of police
regulations, for such a person may be obnoxious to no charge of
violence or disorder; he may be merely passing through the State
peaceably and quietly, or he may be under the care and countenance
of some person affecting ownership over him with the very view of
facilitating his escape. Under such circumstances, he would not be
a proper subject for the exertion of the police power, and, if not
to be challenged under a different power in the State, his escape
would be inevitable, however strong might be the evidences of his
being a fugitive. But let it be supposed that, either on account of
some offense actually committed or threatened or from some internal
regulation forbidding the presence of such persons within a State,
they may be deemed subjects for the exertion of the police power
proper, to what end would the exercise of that power naturally
lead? Fugitives might be arrested for punishment, or they might be
expelled or deported from the State. Nothing beyond these could be
legally accomplished, and thus the invocation of this police power,
so far from securing the rights of the master, would be made an
engine to insure the deprivation of his property. Such are a
portion of the consequences which, in my opinion, must flow from
the doctrines affirmed by the majority of the court -- doctrines,
in my view, not warranted by the Constitution nor by the
interpretation heretofore given of that instrument, and the
assertion whereof seemed not to have been necessarily involved in
the adjudication of this cause. With the convictions predominating
in my mind as to the nature and tendencies of these doctrines,
whilst I cherish the profoundest respect for the wisdom and purity
of those who maintain them, it would be a dereliction of duty in me
to yield to them a direct or a tacit acquiescence; I therefore
declare my dissent from them.

															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. Page 41 U. S. 659 The plaintiff, Edward Prigg, was indicted under the first
section of an act of Pennsylvania, 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."

															It provides,

															"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 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, be deemed guilty of felony,
and shall be fined in a sum not less than five hundred nor more
than one thousand dollars, and shall be sentenced to imprisonment
and hard labor not less than seven nor more than twenty-one
years."

															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, was
affirmed. And the case is now here for our examination and
decision.

															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. Page 41 U. S. 660 That the Constitution was adopted in a spirit of compromise is
matter of history. And all experience shows that, to attain the
great objects of this fundamental law, it must be construed and
enforced in a spirit of enlightened forbearance and justice.
Without adverting to other conflicting views and interests of the
States represented in the general convention, the subject of
slavery was then, as it is now, a most delicate and absorbing
consideration. In some of the States, it was considered an evil,
and a strong opposition to it, in all its forms, was felt and
expressed. In others, it was viewed as a cherished right,
incorporated into the social compact and sacredly guarded by
law.

															Opinions so conflicting, and which so deeply pervaded the
elements of society, could be brought to a reconciled action only
by an exercise of exalted patriotism. Fortunately for the country,
this patriotism was not wanting in the convention and in the
States. The danger of discord and ruin was seen and felt and
acknowledged, and this led to the formation of the Confederacy. The
Constitution, as it is, cannot be said to have embodied in all its
parts the peculiar views of any great section of the Union, but it
was adopted by a wise and far-reaching conviction that it was the
best which, under the circumstances, could be devised, and that its
imperfections would be lost sight of, if not forgotten, in the
national prosperity and glory which it would secure.

															A law is better understood by a knowledge of the evils which led
to its adoption, and this applies most strongly to a fundamental
law. At an early period of our history, slavery existed in all the
colonies, and fugitives from labor were claimed and delivered up
under a spirit of comity or conventional law among the colonies.
The articles of confederation contained no provision on the
subject, and there can be no doubt that the provision introduced
into the Constitution was the result of experience and manifest
necessity. A matter so delicate, important, and exciting was very
properly introduced into the organic law.

															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 Page 41 U. S. 661 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?

															It is contended that the power to execute it rests with the
States. The law was designed to protect the rights of the
slaveholder against the States opposed to those rights, and yet, by
this argument, the effective power is in the hands of those on whom
it is to operate.

															This would produce a strange anomaly in the history of
legislation; it would show an inexperience and folly in the
venerable framers of the Constitution from which, of all public
bodies that ever assembled, they were perhaps most exempt.

															The clause of the Constitution under consideration declares that
no fugitive from labor shall be discharged from such labor by any
law or regulation of the State into which he may have fled. Is the
State to judge of this? Is it left for the State to determine what
effect shall be given to this and other parts of the provision?

															This power is not susceptible of division; it is a part of the
fundamental law, and pervades the Union; the rule of action which
it prescribes was intended to be the same in all the States. This
is essential to the attainment of the objects of the Page 41 U. S. 662 law; if the effect of it depended in any degree upon the
construction of a State, by legislation or otherwise, its spirit,
if not its letter, would be disregarded. This would not proceed
from any settled determination in any State to violate the
fundamental rule, but from habits and modes of reasoning on the
subject; such is the diversity of human judgment that opposite
conclusions, equally honest, are often drawn from the same
premises. It is, therefore, essential to the uniform efficacy of
his constitutional provision that it should be considered
exclusively a federal power. It is, in its nature, as much so as
the power to regulate commerce, or that of foreign intercourse.

															To give full effect to this provision, was legislation
necessary? Congress, by the passage of the Act of 1793, legislated
on the subject, and this shows how this provision was construed
shortly after its adoption, and the reasons which were deliberately
considered, and which led to the passage of the act, show clearly
that it was necessary. These reasons will be more particularly
referred to under another head of the argument. But looking only at
the Constitution, the propriety, if not the necessity, of
legislation is seen.

															The Constitution provides that the fugitive from labor shall be
delivered up, on claim being made by the person entitled to such
labor, but it is silent as to how and on whom this claim shall be
made; the act of Congress provides for this defect and uncertainty
by establishing the mode of procedure.

															It is contended that the power to legislate on this subject is
concurrently in the States and Federal Government; that the act of
the latter are paramount, but the acts of the former must be
regarded as of authority until abrogated by the federal power. How
a power exercised by one sovereignty can be called concurrent which
may be abrogated by another, I cannot comprehend; a concurrent
power, from its nature, I had supposed must be equal. If the
Federal Government, by legislating on the subject, annuls all state
legislation on the same subject, it must follow that the power is
in the Federal Government, and not in the State.

															Taxation is a power common to a State and the General
Government, and it is exercised by each, independently of the
other; and this must be the character of all concurrent powers.

															It is said that a power may be vested in the Federal
Government Page 41 U. S. 663 which remains dormant, and that, in such case, a State may
legislate on the subject. In the case supposed, whence does the
legislature derive its power? Is it derived from the Constitution
of the State, or the Constitution of the United States?

															If the power is given by the state Constitution, it must follow
that it may be exercised independently of the federal power, for it
is presumed no one will sanction the doctrine that Congress, by
legislation, may abridge the constitutional power of a State.

															How can the power of the State be derived from the federal
Constitution? Is it assumed on the ground that Congress, having the
power, have failed to exercise it? Where is such an assumption to
end? May it not be applied with equal force and propriety to the
whole ground of federal legislation, excepting only the powers
inhibited to the States? Congress have not legislated upon a
certain subject, but this does not show that they may not have duly
considered it; or they may have acted without exhausting the power.
Now, in my judgment, it is illogical and unconstitutional to hold
that, in either of these cases, a State may legislate.

															Is this a vagrant power of the State, like a floating land
warrant to be located on the first vacant spot that shall be found?
May a State occupy a fragment of federal power which has not been
exercised, and like a tenant at will, continue to occupy it until
it shall have notice to quit?

															No such power is derived by implication from the federal
Constitution. It defines the powers of the General Government, and
imposes certain restrictions and duties on the States; but, beyond
this, it in no degree affects the powers of the States. The powers
which belong to a State are exercised independently; in its sphere
of sovereignty, it stands on an equality with the Federal
Government, and is not subject to its control. It would be as
dangerous as humiliating to the rights of a State to hold that its
legislative powers were exercised, to any extent and under any
circumstances, subject to the paramount action of Congress; such a
doctrine would lead to serious and dangerous conflicts of
power.

															The Act of 1793 seems to cover the whole constitutional ground.
The third section provides,

															"that when a person held to labor in any State or territory of
the United States, under the laws Page 41 U. S. 664 thereof, shall escape into any other of the said States or
territories, the person to whom such labor or service may be due,
his agent or attorney, is empowered to seize or arrest such
fugitive from labor, and to 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 testimony 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 said fugitive to the
State from which he or she fled."

															The fourth section imposes a penalty on any person who shall
obstruct or hinder such claimant, his agent or attorney, &c.,
or shall rescue such fugitive, when so arrested, &c.

															It seems to be taken as a conceded point in the argument that
Congress had no power to impose duties on state officers as
provided in the above act. As a general principle, this is true,
but does not the case under consideration form an exception?
Congress can no more regulate the jurisdiction of the state
tribunals than a State can define the judicial power of the Union.
The officers of each government are responsible only to the
respective authorities under which they are commissioned. But do
not the clauses in the Constitution in regard to fugitives from
labor and from justice give Congress a power over state officers,
on these subjects? The power in both the cases is admitted or
proved to be exclusively in the Federal Government.

															The clause in the Constitution preceding the one in relation to
fugitives from labor declares that,

															"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."

															In the first section of the Act of 1793, Congress have provided
that, on demand being made as above, "it shall be the duty of Page 41 U. S. 665 the executive authority to cause the person demanded to be
arrested," &c.

															The constitutionality of this law, it is believed, has never
been questioned. It has been obeyed by the governors of States, who
have uniformly acknowledged its obligation. To some demands,
surrenders have not been made, but the refusals have in no instance
been on the ground that the Constitution and act of Congress were
of no binding force. Other reasons have been assigned.

															Now if Congress may, by legislation, require this duty to be
performed by the highest state officer, may they not, on the same
principle, require appropriate duties in regard to the surrender of
fugitives from labor, by other state officers? Over these subjects,
the constitutional power is the same.

															In both cases, the Act of 1793 defines on what evidence the
delivery shall be made; this was necessary as the Constitution is
silent on the subject. The act provides that, on claim's being made
of a fugitive from labor, "it shall be the duty of such judge or
magistrate to give a certificate that the person claimed owes
services to the claimant."

															The Constitution requires "that such person shall be delivered
up, on claim of the party to whom the service is due." Here is a
positive duty imposed; and Congress have said in what mode this
duty shall be performed. Had they not power to do so? If the
Constitution was designed in this respect to require not a
negative, but a positive, duty on the State and the people of the
State where the fugitive from labor may be found (of which, it
would seem, there can be no doubt), it must be equally clear that
Congress may prescribe in what manner the claim and surrender shall
be made. I am therefore brought to the conclusion that, although,
as a general principle, Congress cannot impose duties on state
officers, yet, in the cases of fugitives from labor and from
justice, they have the power to do so.

															In the case of Martin v. Hunter's
Lessee , 1 Wheat. 304, this Court say,

															"The language of the Constitution is imperative on the States as
to the performance of many duties. It is imperative on the state
legislatures to make laws prescribing the time, place and manner of
holding elections for senators and representatives, and for
electors of President and Vice-President. And in these as Page 41 U. S. 666 well as in other cases, Congress have a right to revise, amend
or supersede the laws which may be passed by the state
legislatures."

															Now I do not insist on the exercise of the federal power to the
extent as here laid down. I go no further than to say that, where
the Constitution imposes a positive duty on a State or its officers
to surrender fugitives, Congress may prescribe the mode of proof
and the duty of the state officers.

															This power may be resisted by a State, and there is no means of
coercing it. In this view, the power may be considered an important
one. So, the supreme court of a State may refuse to certify its
record on a writ of error to the Supreme Court of the Union under
the 25th section of the Judiciary Act. But resistance to a
constitutional authority by any of the state functionaries should
not be anticipated, and if made, the Federal Government may rely
upon its own agency in giving effect to the laws.

															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.

															About the time of the adoption of the Constitution, a colored
man was seized by several persons in the State of Pennsylvania, and
forcibly removed out of it with the intent, as charged, to enslave
him. This act was then, as it is now, a criminal offense by the law
of Pennsylvania. Certain persons were indicted for this offense,
and, in the year 1791, the Governor of Pennsylvania demanded of the
Governor of Virginia the persons indicted, as fugitives from
justice.

															The Governor of Virginia submitted the case to the Attorney
General of that State, who decided that the offense charged in the
indictment was not such a crime as, under the Constitution,
required a surrender. He also held "that control over the persons
charged ought not to be acquired by any force not specified and
delegated by positive law." The Governor of Virginia refused Page 41 U. S. 667 to arrest the defendants and deliver them to the authorities of
Pennsylvania. The correspondence between the Governors, and the
opinion of the Attorney General of Virginia, with other papers
relating to the case, were transmitted to the President of the
United States, who laid them before Congress. And there can be no
doubt that this correspondence, and the forcible removal of the
colored person which gave rise to it, led to the passage of the Act
of 1793.

															It is not unworthy of remark that a controversy on this subject
should first have arisen, after the adoption of the Constitution,
in Pennsylvania, and that, after a lapse of more than half a
century, a controversy involving a similar act of violence should
be brought before this Court, for the first time, from the same
State.

															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 Page 41 U. S. 668 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 at 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 Page 41 U. S. 669 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 , 1 Wheat. 304,

															"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 Page 41 U. S. 670 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 Page 41 U. S. 671 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 it does not include
slaves, as every man within the State is presumed to be free, and
there is no provision in the act which embraces slaves. Its
language clearly shows that it was designed to protect free persons
of color within the State. But it is admitted there is no exception
as to the forcible removal of slaves, and here the important and
most delicate question arises between the power of the State and
the assumed but not sanctioned power of the Federal Government.

															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 Page 41 U. S. 672 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, Page 41 U. S. 673 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. Page 41 U. S. 674 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.