# Prigg v. Pennsylvania/Concurrence Daniel

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United States Supreme Court
41 U.S. 539
Prigg v. Pennsylvania
DANIEL, Justice.
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.
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 guaranty 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 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 anthority 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 orginally 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.
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 Sturges 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. 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 ulimited 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. 198, 'it does not appear to be a violent construction of the constitution, and is certainly a convenient one, to consider the powrs 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 powr 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 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. 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 every investigation of constitutional points. They commend themselves by their intrinsic equity; and have been amply justified by the great men under whose guidence the constitution was framed, as wells 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. 137), as directly deducible from the decision in Gibbons v. Ogden, 7 Wheat. 204, and Brown v. State of Maryland, 12 Ibid. 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. 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. 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.' 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 slave-holder 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-slave-holding 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 co-operate 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 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 co-operation 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 offence, 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 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 offence 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.
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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