# Prigg v. Pennsylvania/Concurrence Taney

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United States Supreme Court
41 U.S. 539
Prigg v. Pennsylvania
TANEY, Ch. J.
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 slave-holding 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. 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 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 recognised as an existing right in every state of the Union.
I do not speak of slaves whom their masters voluntarily take into a non-slave-holding 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 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; ann 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, 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 some one 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 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 co-operation; 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 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. But 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 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 travelling 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 slave-holding 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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