# Moore v. Illinois (55 U.S. 13)

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## Dissenting Opinion

    McLean
United States Supreme Court
55 U.S. 13
Moore v. Illinois
THIS case was brought up from the Supreme Court of the State of Illinois, by a writ of error issued under the 25th section of the Judiciary Act.
The section of the law of Illinois, under which Eels was indicted in 1842, and the facts in the case are set forth in the opinion of the court, and need not be repeated. The court before which he was tried, fined him four hundred dollars, and the Supreme Court of Illinois affirmed the judgment. The case is reported in 4 Scammon's Rep. 498.
It was argued, in this court, by Mr. Chase, for the plaintiff in error, and a printed argument filed by Mr. Dixon on the same side; and by Mr. Shields for the defendant in error, who filed a printed argument prepared by Mr. McDougall, Attorney-General of Illinois.
The arguments urged by the counsel for the plaintiff in error, in order to show that the law of Illinois was void, were,--
1. That the act of Congress, passed in 1793, was constitutional; that the power of legislating upon the subject of fugitive slaves, ought to be vested in Congress; that the act had been declared to be constitutional by the following authorities: 16 Peters, 620 et seq.; 9 Johns, 67; 12 Wendell, 311; 2 Pick. 11; 5 Sergeant & Rawle, 62; 2 Wheeler's Crim. Cases, 594.
2. That the power was vested exclusively in Congress, and if there was an omission to legislate, silence was as demonstrative of its will as express legislation. 5 Wheat. 1, 21, 22; 16 Pet. 617 et seq.
3. That admitting the power to be concurrent, its exercise by Congress supersedes all State legislation. 1 Kent, 380, 391; 1 Story, Com. on Con. § 437 to 443; 12 Wend. 316, 325; 1 Pet. Con. Rep. 429; 4 Id. 414-5; 2 Wheel. Crim. Cas. 594; 5 Wheat. 21, 24, 36, 70, 75; 14 Wend. 532-6; 16 Pet. 617-8.
4. The act of Congress of 1793, and the law of Illinois, conflict with each other.
5. Two laws legislating over the same offence, cannot exist at the same time.
6. If so, the law of Illinois must give way.
It was particularly pressed upon the court by Mr. Chase, that this court had decided, in the case of Prigg v. Pennsylvania, (16 Pet. 539,) that all State legislation upon the subject of fugitive slaves, was void, whether professing to be in aid of the legislation of Congress, or independent of it, was void; and he claimed the benefit of that decision.
The counsel for the defendant in error, commented on the various positions above mentioned; and the following extract from the brief, shows the principal ground relied upon to vindicate the State law.
The case just cited, (Houston v. Moore, 5 Wheaton,) leads directly to the question, What is the particular power exercised by the State in the present instance; whence derived, and what the design and mode of its operation? And it may be as well here to remark, that it is not alone in the light of an act in aid of the legislation of Congress, that this law is to be considered. The question before this court is one of power-of power in the State to legislate in the particular manner. If the power exists in the State, no matter from whence derived, the validity of the law cannot be questioned.
It is now contended that the power in question belongs to the States in virtue of their original and unsurrendered sovereignty; in virtue of those great conservative powers which all governments must have, exercise, and maintain for their own protection and preservation; powers which, in the language of Mr. Madison, (Federalist, No. 45,) 'extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.'
In the City of New York v. Miln, (11 Pet. 139,) the court say, 'that a State has the same undeniable, and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, when that jurisdiction is not surrendered or restrained by the Constitution of the United States,' &c.
It has been before remarked, that slavery exists to a limited extent in the State of Illinois; nevertheless, it is the settled policy of the State to discourage the institution, as also a free negro population. By numerous acts of legislation, before and since the present constitution, it has been made penal to introduce negroes from other States, except upon severe conditions. Negroes have been and continue to be regarded as constituting a vagabond population; and to prevent their influx into the State, restrictive laws have been from time to time passed. In connection with this regulation is to be found the law in question, prohibiting persons within the State from harboring or secreting fugitive negro slaves. The question whether a State may not prohibit its citizens from harboring or protecting felons, fugitives from other countries, is the same with this. It is possible that some new State might become a country of refuge for the accused and convicted outcasts of older and stronger governments; would that State be compelled to receive and welcome the moral pestilence? Certainly not; the right of self-preservation, necessary to all governments, would justify any act required to repel them from her borders.
It was upon this principle, as a sovereign power in the State, that this court sustained the law of New York, intended to prevent the influx of a pauper and vagabond population at the port of New York. City of New York v. Miln, (11 Pet. 142.) In which case the court say, 'We think it as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers and vagabonds, and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported, or from a ship the crew of which may be laboring under an infectious disease.'
It was in favor of this same power that the court, in Prigg v. Pennsylvania, (16 Pet. 625,) qualify the general terms of their opinion,-'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,' &c.
The State may arrest, restrain, and even remove from its borders, the fugitive slave, and so long as the rights of the owner are not interfered with, it is a constitutional exercise of power. If, then, the greater power exists, that over the person of the slave, for the purpose of police, certainly the lesser power, that over the citizen, preventing him from harboring, secreting, or protecting the slave, for like purposes of police, will not be denied.
It will be perceived that this view of the case settles the point made in the opposing argument, that the law of Illinois is a violation of the Federal and State Constitutions, which prohibit two punishments for one offence. A legal offence is the breach of a law. Eels, in harboring a fugitive slave, violated a law of this State, by interfering with its internal policy. He also violated a law of Congress, by interfering with the rights of the slave-owner secured by the Constitution. The one act constitutes two distinct offences against the several laws of distinct jurisdictions. Within the same jurisdiction one act frequently constitutes several offences, as in the familiar cases of assaults, libels, and other personal injuries, which are offences against the persons injured, and at the same time offences against the government; and the different offences may be separately tried, and separately punished. The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person's life or limb shall be twice put in jeopardy.
Mr. Justice GRIER delivered the opinion of the court.

## Notes

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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