# Prigg v. Pennsylvania/Concurrence Wayne

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United States Supreme Court
41 U.S. 539
Prigg v. Pennsylvania
WAYNE, Justice.
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 feguitives 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.
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 slave-holding, and the non-slave-holding 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 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 co-operated 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-slave-holding 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 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 slave-holding 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 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 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 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 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 not anticipated by the representatives of the slave-holding 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 thier 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 cencluded. Nor does it matter, that the 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 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. 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 being a refuge, so would the right of individuals, and the institutions of the slave-holding 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 weath 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 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 migth 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 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, at 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 every one 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 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, Clarles 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 serive, 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, preventing the states from discharging fugitive slaves, is exclusively in the congress of the United States. I am as little inclined as any one 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 embarrasssd 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.
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.
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