[Prigg v. The Commonwealth of Pennsylvania.] 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. Mr. Justice BALDWIN, 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 kidnapping. 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 labour, 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 labour is due. [Prigg v. The Commonwealth of Pennsylvania.] 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 offences 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 [Prigg v. The Commonwealth of Pennsylvania.] 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 labour 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 labour, but shall be delivered up on claim of the party to whom such service or labour is due." The clause contains four substantive declarations; or two conditions, a prohibition, and a direction. First, The fugitive must owe service or labour under the law of the state from which he has 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 labour 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 endeavour 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 [Prigg v. The Commonwealth of Pennsylvania.] 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 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 the 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 labour, 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 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 fugi Il leve [Prigg v. The Commonwealth of Pennsylvania.] tive slave owing service and labour 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 labour 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 any thing; 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 |