BRIEF NOTICES OF CASES.
ARGUED AND DECIDED IN THE SUPREME COURT OF THE UNITED STATES.
JANUARY TERM, 1847.
THURSDAY, MARCH 4, 1847.
RECLAMATION OF FUGITIVES FROM SERVICE. NO. 37.
WHARTON JONES, Plaintiff; JOHN VAN ZANDT, Defendant.
On a certificate of division in opinion between the Judges of the Circuit Court of the United States for Ohio.
Mr. S.P. CHASE, for the Defendant.
The issues presented in the present case to this court for adjudication reach to all that is dear in constitutional liberty and in political union. Not John Van Zandt alone - not numerous individuals only, but the States also, and the nation itself, must be deeply affected by the decision in this case. A deliberate and unprejudiced examination, therefore, of the positions taken in this argument, is asked for. No position will be taken for which the counsel who addresses the court will not be willing to be held responsible for as a citizen and as a man.
If any position shall be taken in this argument that may be regarded as an attempt to unsettle established doctrines, and as an attack upon constitutional guaranties, let it be remembered that, if it shall have the sanction of reason and truth, it will ultimately prevail, whatever authority may stand in the way. Opinion and authority may stand for law, but they do not always represent the law. For many years, they sanctioned the doctrine that slaves might be held in England; but the doctrine was finally overthrown, and the maxim that slavery is strictly a local institution firmly established.
The defendant is an old man, of limited education and means, but of unquestioned integrity and goodness of heart. He is a small farmer in the neighborhood of Cincinnati, and sells the products of his farm in the markets of that city. On Saturday, the 23d of April, 1842, he returned from market, and spent the night with a friend who lived on the Walnut Hills. The next morning he arose very early to go home, and found in the road a company of negroes - nine in all. These persons had escaped from slavery in Kentucky. Van Zandt had nothing to do with their escape, but, upon being solicited, he undertook to convey them in his wagon to Lebanon, &c. There is no evidence that he had any positive knowledge that the negroes were fugitives from slavery, except so far as he was informed by the negroes themselves. He had no notice of the fact, unless this knowledge be notice, that the negroes had been held to labor in Kentucky under the laws thereof, and had escaped that State into Ohio. He received them into his covered wagon. One of them, a man named Andrew, took his seat in front, in open view, as the driver of the wagon. They had progressed some fifteen miles in four hours, when two villains, without any legal process or authority, or request from any claimant, in broad day, and in breach of the laws of Ohio, undertook to seize the negroes and carry them out of the State by force, on suspicion that they were fugitive slaves. They were successful in this criminal attempt, except as to Andrew, who leaped from his seat and escaped. All the negroes had been the slaves of Wharton Jones, the plaintiff, and all of them, except Andrew, were recovered.
The plaintiff prosecuted two suits against Van Zandt - one in an action on the case to recover the damages sustained by reason of the loss of Andrew, &c., and the other in an action of debt to recover the penalty of $500, under the act of 1793. The first case is pending in the circuit court; the second, grounded upon alleged acts of the defendant in relation to Andrew only, has been brought to this court on a certificate of division of opinion in the court below on various questions that arose during the progress of the trial, and, after verdict, on a motion in arrest of judgment.
The questions which arose during the trial, and which are certified for decision, are these:
1. Whether, under the 4th section of the act of 12th of February, 1793, respecting fugitives from justice and persons escaping from the service of their masters, on a charge for harboring and concealing a fugitive from labor, the notice must be in writing, by the claimant or his agent, stating that such person is a fugitive from labor under the 3d section of the above act, and served on the person harboring or concealing such fugitive, to make him liable to the penalty of five hundred dollars under the act.
2. Whether such notice, if not in writing and served as aforesaid, must be given verbally, by the claimant or his agent, to the person who harbors or conceals the fugitive; or whether, to charge him under the statute, a general notice to the public, in a newspaper, is necessary.
3. Whether clear proof of the knowledge of the defendant, by his own confession or otherwise, that he knew the colored person was a slave or fugitive from labor, though he may have acquired such knowledge from the slave himself, or otherwise, is not sufficient to charge him with notice.
4. Whether receiving the fugitive from labor at three o'clock in the morning, at a place, in the State of Ohio, about twelve miles distant from the place in Kentucky where the fugitive was held to labor, from a certain individual, and transporting him, in a closely covered wagon, twelve or fourteen miles, so that the boy thereby escaped pursuit, and his services were thereby lost to his master, is not a harboring or concealing of the fugitive within the statute.
5. Whether a transportation under the above circumstances, though the boy should be recaptured by his master, is not a harboring or concealing him within the statute.
6. Whether such a transportation of him in an open wagon, whereby the services of the boy were entirely lost to his master, is not a harboring or concealing of him within the statute.
7. Whether a claim of the fugitive, from the person harboring or concealing him, must precede or accompany the notice.
8. Whether any overt act, so marked in its character as to show an intention to elude the vigilance of the master or his agent, and calculated to attain such an object, is a harboring of the fugitive within the statute.
The questions upon the motion in arrest are as follows:
1. Whether the first and second counts in the plaintiff's declaration contain the necessary averments that Andrew, the colored man, escaped from the State of Kentucky into the State of Ohio.
2. Whether said counts convey the necessary averment of notice that said Andrew was a fugitive from labor within the description of the act of Congress.
3. Whether the averment in said counts, that the defendant harbored said Andrew, are sufficient.
4. Whether said counts are otherwise sufficient.
5. Whether the act of Congress approved February 12, 1793, be repugnant to the Constitution of the United States.
6. Whether said act be repugnant to the ordinance of Congress adopted July, 1787, entitled "An ordinance for the government of the Territory of the United States northwest of the river Ohio."
The questions now before the court in relation to the sufficiency of the declaration arise on the first and second counts, and they are as follows:
WHARTON JONES, a citizen of and resident in Kentucky, by Charles Fox, his attorney, complains of JOHN VAN ZANDT, a citizen of and resident in Ohio, who was summoned to answer unto the plaintiff in a plea of debt: for that whereas a certain person, to wit, Andrew, aged about thirty years, Letta, aged about thirty years, on the 23d day of May, 1842, at Boone county , in the State of Kentucky, was the slave and in possession of the plaintiff, and his property; and owed service and was held to labor to the plaintiff, by the laws of Kentucky; unlawfully, wrongfully, and unjustly, without the license or consent and against the will of the plaintiff, departed and went away from and out of the service of the plaintiff, of said Boone county , and came to the defendant at Hamilton county in the State and district of Ohio, and was there a fugitive from labor; and the defendant, well knowing that the said Andrew was the slave of the plaintiff, and a fugitive from labor, yet afterwards, to wit, on the day and year aforesaid, at said district, contriving and unlawfully and unjustly intending to injure the plaintiff, and to deprive him of said slave and his service, and of the profits, benefits, and advantages that might and would otherwise have arisen and accrued to him from said slave and his service, did then and there, knowingly and willingly, wrongfully, unjustly, and unlawfully, receive the said slave of the plaintiff into his service, and knowingly and willingly harbor, detain, and conceal and keep the said slave; in consequence of which, the plaintiff lost said slave, and was deprived of his services, and of all benefits, profits, and advantages, which might and would have accrued and arisen to him from such slave and his service, contrary to the statute of the United States in such case made and provided, whereby the defendant forfeited the sum of five hundred dollars, to and for the use of the plaintiff; yet the defendant, though often requested, has not paid the same, nor any part thereof.
And, also, for that whereas, on the day and year aforesaid, at said Boone county , a certain person, to wit, Andrew, aged about thirty years, was the slave of and in the possession of the plaintiff, and his property, and owed service and was held to labor to the plaintiff by the laws of the State of Kentucky, did unlawfully, wrongfully, and unjustly, without the license or consent and against the will of the plaintiff, depart and go away from and out of his service, to wit, at Boone county aforesaid, and came to Hamilton county, in the State and district of Ohio, to the defendant, and the defendant had notice that the said Andrew was the slave of the plaintiff and a fugitive from labor; yet afterwards, to wit, on the day and year aforesaid, at the district aforesaid, contriving and wrongfully and unjustly intending to injure the plaintiff, and deprive him of the said slave and his service, then and there, on the day and year aforesaid, at the district aforesaid, knowingly and willingly, unjustly, wrongfully, and unlawfully, conceal the said slave from the plaintiff; in consequence of which, the plaintiff lost said slave, and was deprived of his service, and of all profits, benefits, and advantages, which might and otherwise would have arisen and accrued to the plaintiff, from such slave and his service, contrary to the statute of the United States in such case made and provided, whereby the defendant forfeited the sum of five hundred dollars, to and for the use of the plaintiff; yet, though often requested, he has not paid the same, nor any part thereof, to the damage of the plaintiff in the sum of five hundred dollars, and therefore, &c.
As the claim of the plaintiff rests wholly on the act of Congress of 1793, the third and fourth sections of the same, which alone touch the subject in controversy, are as follows:
"3. Be it enacted , That when a person, held to labor in any of the United States, or in either of the Territories on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said States or Territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such arrest or seizure shall be made; and upon proof, to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such State or Territory, that the person so seized or arrested doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be a sufficient warrant for removing the said fugitive from labor to the State or Territory from which he or she fled.
"4. That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent or attorney, when so arrested pursuant to the authority herein given or declared, or shall harbor or conceal such person, after notice that he or she was a fugitive from labor as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars; which penalty may be recovered by and for the benefit of such claimant, by action of debt, in any court proper to try the same; saving, moreover, to the person claiming such labor or service, his right of action for or on account of the said injuries, or either of them."
These provisions were designed to give effect to the following clause of the Constitution:
"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 labor or service may be due."
Proceed we now to a discussion of the questions before the court. They may be classed under the four following heads:
1. Is the plaintiff's declaration sufficient, and what are the requisites of notice under the law of 1793?
2. What acts constitute the offence of harboring or concealing under the statute?
3. Is the act of 1793 consistent with the provisions of the ordinance of 13th July, 1787?
4. Is the act of 1793 repugnant to the Constitution of the United States?
Is the plaintiff's declaration sufficient, and what are the requisites of notice under the act of 1793?
The act of 1793, denouncing the penalty claimed by the plaintiff, is penal in its character. The declaration charges the defendant with an offence under this act, and demands the penalty. It is a penal action, and he who seeks a penalty is entitled to no favor in a court of justice. The act under which he claims must be strictly construed, and the declaration must present a case within the precise terms of the act. No matter what injury may be suffered by the claimant of a fugitive servant, in consequence of the acts of a third party, if those acts do not make the very case described by the law, or if he does not state with strict certainty the facts which make that case, he cannot be heard to demand the penalties given by the act. It is said that the act is remedial also. The rule is settled, that, where an act is penal in one provision and remedial in another, the first provision is to be construed strictly, while the latter may be construed liberally. - Dwarris, p. 754; 9 English Com. Law, p. 431. There is no case where a provision of an act imposing a penalty has been construed otherwise than strictly, no matter what other provisions it may be associated with. A penal statute is a legislative act inflicting a forfeiture for transgressing the provision therein contained, and must receive a strict construction. - Dwarris, p. 736. No man incurs a penalty, unless the act which subjects him to it is clearly within the spirit and the letter of the statute imposing the penalty. - Ibid . If these rules be violated, the fate of accused persons is decided by the caprice of judges, and not by the authority of laws. - 3 Bing., p. 580. These are regulae rationales , and the law will suffer an offence to go unpunished rather than violate them. - Dwarris, p. 736. They are essential to the existence of a free Government, and there can be no freedom, no security, without their strict observance. And they have been fully sustained by the decisions of the American courts and the writings of our jurists. - 5 Dane, p. 244, & 8; 6 Dane, p. 588, & 16; 4 Western Law Journal, p. 111; 1 A.K. Marsh, p. 329; 2 Stat. of Kentucky, p. 756; 2 Dana, p. 298; 1 Bibb, p. 516; 6 Harr. & Johns., p. 10; 8 Yerg., p. 150; 4 Port., p. 412; 8 Port., p. 412. And this court has declared that the rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals. - 4 Pet. Cond. Rep., p. 569. In penal actions, the declaration must follow the statute, and aver that the offence alleged was committed contra formam statuti. The authorities to this point are inflexible. - Chitty on Pleading, p. 404; 1 Gallison, pp. 259, 265. These rules, in relation to penal actions, have been applied in the construction of the very statute under consideration, in an action for the same penalty which the plaintiff now seeks to recover. - Ex parte Simmons. 4 Wash., p. 397; Hill vs. Law, 4 Wash., p. 328.
Now, let these principles be applied to the declaration above set forth. Such a declaration ought to state, that a person held to labor by the plaintiff in Kentucky, under the laws thereof, has escaped into Ohio, and the person escaping ought to be sufficiently described. It ought to allege, that the defendant harbored the fugitive, after notice that he had been held to labor, &c. Does the plaintiff's declaration aver these things? It is not drawn in conformity with any approved precedent of a declaration in debt for a penalty. The conclusion is informal. The first count states, that "Andrew, aged about thirty years, Letta, aged about thirty years, was the slave," &c. Such a count is bad for uncertainty, and, though cured by the verdict, shows how carelessly the declaration has been drawn. The next objection is of a different character. After alleging that the fugitive, "at Boone county , &c., owed service, &c., unlawfully, wrongfully, &c., without the license or consent, and against the will, &c., departed and went away, &c., and came to the defendant at Hamilton county," &c., the object was doubtless to state that the servant escaped from the plaintiff to the defendant, and the counties and States of the parties are mentioned only as their places of residence. But is this a statement of an escape within the meaning of the act of Congress? The clause of the Constitution relating to fugitives from service is "confined to persons held to service or labor in one state, and escaping into another." - 4 Wash., 396. The Constitution and the law apply to this single class of persons. The allegation says, that " ----- departed and went away, &c., from the service of the plaintiff, of said Boone county , and came to the defendant at Hamilton county," &c. Now, admitting the defects in this allegation may be remedied by legal intendment, every fact may be truly stated, and yet there be no escape under the law. Under what laws was the fugitive held? The laws of the State of Kentucky? The allegation does not say so. Where was the master at the time of the escape? Though he was of Boone county , he may have been in Ohio with his servant at the time of his escape; or the servant may have departed from the service of his master, without his consent, and yet may have got his consent afterwards to go into Ohio. In either of these two cases, there would be no title to the penalty. It would not do to say that the language of this part of the count may, by a liberal construction, be applied to a case of an escape under the law. - 1 Hall, N.Y., 318; 13 Johns., 438. The plaintiff is bound to aver and prove that the alleged fugitive was held to labor in the State of Kentucky, under the laws thereof, and escaped from that State into Ohio. Has he averred such an escape? There is no averment of an escape from the state of Kentucky into the State of Ohio. Nor can it be, as urged by the plaintiff, that, after verdict, the facts necessary to obtain it, though not specifically alleged, were proved. There is no such rule as this. Proof of facts not necessarily implied by the facts stated, will not be presumed. - T. Rep., 146; 2 Doug., 683; 17 T. Rep., 453; 4 Pick., 344; 4 T. Rep., 471; Gould's Plead., 503.
This court has recognised the rule, and applied it to a case of a defective plea. - 4 How., 155. The declaration in this case avers certain facts. The issue is, not guilty. Of what? Of the facts charged. The verdict is, guilty. Of what? Of harboring and concealing certain persons, alleged to have been held to service by the laws of Kentucky, who, without consent, departed from the service of the plaintiff, in Boone county , and afterwards came to the defendant in Ohio. These facts do not make the case of escape defined by the Constitution and the act of Congress. Nor can the necessary averment be supplied by intendment. This would not be allowed in an ordinary action, much less in an action for a penalty.
The second count is defective in the same particular. There is no allegation of escape from the State. Mr. Justice Woodbury held that a declaration upon a penal statute must describe with strictest certainty sufficient facts to constitute the offence. - 2 New Hamp., 105.
The first count in the declaration contains no sufficient averment of notice to the defendant, that the person harbored was held to labor in the State of Kentucky, under the laws thereof, and had escaped from that State into Ohio. The averment is, that "the defendant, well knowing that said Andrew was the slave of the plaintiff, and a fugitive from labor, afterwards, &c., did, knowingly and willingly," &c. The act of Congress provides, that "any person who shall, knowingly and willingly, &c., harbor or conceal such a person, after notice that he," &c. Does the declaration aver that the defendant, after notice , that the servant, &c., harbored or concealed him? It is certain that no such averment is made in terms. Are the terms of the declaration of the same import as the words of the law? If so, it will be sufficient. And, 1st, Is knowledge or belief notice? 2d, Is notice that the person harbored is "a slave and a fugitive from labor," equivalent to a notice that he was held to labor, &c.? 1. Mr. Justice McLean, in the court below, expressed the opinion, in the case for damages between the parties hereto, that "the law of notice most appropriate to the case in hand is that which applies to a purchaser of real estate for a valuable consideration, with notice," and cited in support of his view the language of Mr. Justice Story. - 1 Gall., 42. The act of Congress contemplates a different kind of notice. If notice be knowledge, the words after notice are superfluous. Even if the act had never contained the words "after notice," the averment of knowledge would have been necessary. The Legislature did not intend that mere receiving or sheltering a fugitive servant should subject the citizen to a penalty, without actual notice, &c., that the person was such a fugitive as is described in the Constitution and the law. It cannot be, that the words "after notice" are equivalent to "knowledge." Harboring or concealment in a distinct offence, under the statute. It cannot be committed, unless there be a fugitive, nor unless there be a claimant. There must be a subject of the act answering the description of the law, and the act must be to the prejudice of an asserted right. Harboring or concealment only becomes unlawful after notice ; and this notice must be given in some way by the claimant, or some one for him, to the party to be charged. In other words, when any person, having received or not having received a fugitive servant into his employment, or having given or not having given him shelter and entertainment, knowingly and willingly, fraudulently conceals him, after such notice - this is harboring or concealment. The offence of harboring or concealment is not complete until after notice. Harboring is fraudulent concealment. - 2 N. Car. Law Rep., p. 249. Under the statutes of North Carolina, employing or maintaining openly is not harboring. To harbor is to receive clandestinely, and without lawful authority, &c. - 1 Bouvier, p. 460. But actual notice is essential, and it must be the precise notice required by the statute. Even at common law, no action will lie for harboring the servant of another, until after notice that he is such servant, &c. - 1 Chitty's Gen. Practice, pp. 449, 465; 3 Starkie on Evid., p. 1310. The law should never presume against liberty - never presume that an act of humanity or charity is an offence.
The act of 1793 is in derogation of the common law. There is therefore more reason for requiring notice under such an act than at common law. The terms of the act must not be extended and penalties multiplied by construction. For all injuries not defined by the act, the parties must go to the redress afforded by the common law. There is no reasonable doubt, therefore, that the words "after notice" are not described by the words "well knowing," in the declaration. There is no case in any of the books, in which a requisition of notice, to charge a party with liability for a penalty, has been held to be satisfied by proof that the defendant knew the facts of which he was to be notified.
2. But of what does the statute require the party to be notified? The terms of the act on this point are clear: "Any person who shall, &c., harbor or conceal such person, after notice that he or she was" held to service in one of the United States, under the laws thereof, and has escaped into another of said States, shall forfeit and pay. Does the declaration aver this fact, or is there any averment in it to the same effect? The actual averment is, "that Andrew was the slave of the plaintiff, and a fugitive from labor." The language of the act of Congress of 1793 is adopted from the Constitution. Every word in the Constitution, relating to this subject of fugitives from labor, &c., was carefully weighed and deliberately chosen to define the limits of this exception to the rule of freedom. The object was, to secure, to a certain extent, the legal rights of slaveholders. To avoid al recognition of the rightfulness of slaveholding, the provision was made to apply to all servants held under State laws. The prohibition of discharge from labor, &c., was limited to that labor, &c., to which the servant was held by the laws of the State whence he escaped.
It was a great concession on the part of the free States - this clause. It did not originate in any of the compromises of the Convention, and was not one of the disputed clauses. It was not in the articles drawn up by the Committee on Detail. It was only suggested late in the session of the Convention, when the delegates from South Carolina proposed a clause that "fugitive slaves and servants" should be "delivered up like criminals." - 3 Madison Papers, p. 1447. This proposition was withdrawn, and subsequently the present clause received the unanimous consent of the Convention. - 3 Mad. Papers, pp. 1456 to 1589. The great object was, to exclude from the Constitution the idea of a sanction to slaveholding. The clause is confined to persons held to service in one state, under its laws, and escaping into another. The law is confined to the same class of persons. The notice required is, that the person harbored is a person of this precise class. Even admitting the word slave to be the synonyme ofservant , the declaration utterly fails to allege notice of the facts of which the statute says he must have notice, and the plaintiff has therefore failed to allege any title to the penalty. - 3 Gates, p. 458.
But it is essential that a declaration claiming the penalty imposed by the law for harboring fugitive servants must set forth the facts which constitute the offence. - Chitty's Crim. Law, p. 171; 3 Yerger, p. 137; 2 Stra., p. 1127; 2 T. Rep., p. 581; 1 Camp., p. 495; 6 East., p. 417. The facts which constitute the offence of harboring may be ascertained without difficulty. There is no reason for encroaching upon the rule, that any person accused of an offence shall have the charge against him so precisely set forth that he may not be unprepared in his defence. - 17 Johns., p. 458; 4 Pick., p. 366; 1 Pick., p. 179.
If this declaration be sustained, the rule of justice as to this defendant must be broken down; for it surpasses human sagacity to divine, from the words of the declaration, of what the defendant is accused. What are the words? "That the defendant, &c., did, &c., unlawfully receive the said slave, &c., into his service, and knowingly and willingly harbor, detain, conceal, and keep the said slave," "did, &c., knowingly, willingly, &c., and unlawfully conceal the said slave from the plaintiff." There are no facts or circumstances in these words constituting the concealment.
But the declaration does not contain sufficient averment that the act of the defendant, in harboring the fugitive servant, was contrary to the form of the statute. Such an allegation is indispensable in an action for a statute penalty. It must be that the actcomplained of is contrary to the statute. - 2 East., p. 333; 1 Gall., pp. 259, 265, 271; 1 Bailey S.C. Rep., p. 17; 5 Green. p. 79; 6 Green, p. 276; 5 Pick., p. 169; 9 Pick., p. 162. Is this allegation in the declaration before the court? It is alleged that the defendant did certain acts, "in consequence of which the plaintiff lost said slave, and was deprived of his services, and of all benefits, &c., which would have accrued, &c., from such slave and his services, contrary to the statute ," &c. The loss of the fugitive and the injuries resulting are facts immaterial. If the defendant's acts be properly alleged and proved, they will subject him to the penalty, whether loss or injury was the consequence or not. And yet these immaterial matters only are alleged to be contrary to the statute. And, as this is a penal action, the plaintiff ought to have the full benefit of the objection. - 1 Gall., p. 265. The phrase, "contrary to the statute," in the declaration, refers to the loss of the slave and his services, not to the act of harboring; and the defendant is entitled to the benefit of a literal interpretation. - 1 Gall., p. 187.
II. What is harboring or concealing under the statute ?
It is probable the two words, harboring or concealing, are used in the act as equivalents; but, as no question arose upon the trial as to the concealment of Andrew, the only inquiry is as to the true import of the term harbor. If the legal definition, already given, be not sufficient, a reference to Johnson, Webster, and Richardson, in loco , will show that the idea of rest, residence, shelter , is included in every definition of the word. The notion of harboring is never dissociated from the notion of dwelling. To harbor, never means to afford facilities for flight. It cannot be made to mean transportation in an open market wagon, even if the transportation be intended to aid the flight of a fugitive servant, with full notice that he is such, within the terms of the act of Congress. If an action be brought at common law for harboring the servant of the plaintiff, and the proof be, merely, that the defendant allowed the servant to ride in his wagon a part of the way to the place to which he was flying, with the intent to aid his escape, would this sustain the action? Surely not. The most that has been proved in this case is, that the defendant transported the fugitive, without concealment, for a short distance, and without the intent - it may be admitted for the sake of the argument - to aid the escape of the fugitive. But what is such a case? No more than a case of "obstruction or hindrance," and it only needed the circumstance of being an obstruction, &c., against the claimant, &c., to make it penal by the act of 1793. But the act is in no proper sense an act of harboring.
But the 8th question certified asks, whether " any overt act , so marked in its character as to show an intention to elude the vigilance of the master or his agent, and calculated to attain such a purpose, be a harboring within the meaning of the statute?" There is no usage, no authority, which warrants the use of the word harboring , in the sense assigned it in this definition. It is at once too broad and too narrow. No rule of construction, governing the interpretation of penal statutes, warrants such a definition. Congress never intended to use the term as a sort of residuary term, to include all possible injuries to the rights of masters not already made punishable under the title of obstruction, hindrance, or rescue. The statute must not be made broader by construction. Words must not be forced out of their usual sense. Shall it be said that public security is a less important end than the right of a master to his servant? Shall it not rather be said, that if the plaintiff does not bring his case strictly within the act, he must resort to such other remedies as the law may give; and, if it gives no other, he must await the action of the Legislature? The act of 1793 is defective. It gives no penalty for enticing to escape, none against obstruction or hindrance without force after seizure, none against enticing to fly after seizure, none - as the defendant claims - against transportation without concealment, with or without intent to aid an escape, &c. Mr. Justice Washington points out these omissions, and, in regard to many of them, says that the attempt to correct these defects has not succeeded. - 4 Wash., pp. 326, 396, 461. It will not do, therefore, to urge, that the strict construction of this law, contended for by the defendant, may deprive the master in some cases of his servants. Where there is no enactment constituting certain acts into an offence, the court cannot supply the law. - 7 Yerg., p. 463. Will this court attempt to supply the defects in the law of 1793? If it does, a more fatal blow cannot be struck against our institutions, for it would be assuming the duties of the Legislature. Multitudes regard the act of the defendant not merely as no crime, but as an act of mercy. He yielded to the appeal of the slaves for aid, not to hurt the master, but to benefit them. Not even in any slave State would such an act be regarded as morally wrong. If, then, this act shall be made an offence by construction, the impression on the public mind will be deep and painful. It will involve the assertion of the master's legal rights in perils and difficulties never before encountered. It will arouse the spirit of martyrdom, which regards with calm defiance the penalties of unjust law.
If the court is satisfied that the positions which have been taken are sound in law, the questions that arose before verdict, and which have been submitted for decision here, must be answered thus:
1. The notice required need not be in writing.
2. The notice must be given by the claimant, &c., to the person to be held liable, &c., either in writing or verbally, or by publication brought home to the party, &c.
3. Clear proof of the knowledge or belief of the defendant, that the person harbored was a slave, &c., is not sufficient to charge him with notice; for the terms "after notice," used in the act, are not the equivalent of "knowing;" but their true meaning is, after information, &c.; and because notice, &c., that the person harbored was a slave or fugitive from labor, is not notice, &c., that such person was held to service under the laws of one State, and escaped into another.
4. Receiving a fugitive from labor at 3 o'clock in the morning, &c., and transporting him in a closely covered wagon, &c., is not a harboring, &c., within the statute.
5. Any state of facts making a case of harboring, &c., if the fugitive escape, will make such a case, even though he may be retaken.
6. Transportation of a fugitive in an open wagon, &c., is not a harboring, &c., within the statute.
7. A formal claim of the fugitive, &c., need not precede or accompany the notice. The notice amounts to a claim.
8. It is too broad to say, that any overt act, &c., is a harboring, &c. Such an act may be an act of harboring, &c., and there may be harboring without such overt act.
These are all questions upon the evidence, and arising before verdict. They ask what facts and circumstances it is necessary to aver and prove, in order to make out a case of harboring.
In regard to the questions that arose after verdict, they may be answered thus, if the reasoning of the defendant be correct:
1. The declaration, &c., does not contain the necessary averment of escape from the State of Kentucky into the State of Ohio.
2. Nor does it contain the requisite averment of notice.
3. Neither does it contain a proper allegation that the defendant harbored the fugitive, because the acts constituting the harboring are not set forth, &c.
4. Each count is insufficient, in that it does not allege with certainty who escaped, in that it contains no certain allegation that any one escaped, in that the allegation of concealment is imperfect and defective, and in that it does not conclude against the form of the statute.
III. Is the act of 1793 consistent with the provision of the ordinance of July 13th, 1787?
At the close of the war of the Revolution, Congress claimed the territory west of the Alleghenies as a country conquered from Great Britain, to be held and disposed of for the joint benefit of all the States. The same territory was also claimed by several of the States, as belonging exclusively to them. These claims result in a compromise, by which the United States obtained the possession of the region northwest of the Ohio. Congress at once provided for a temporary Government, and for the permanent establishment of certain fundamental principles, as the immutable basis of all laws, Constitutions, and Governments, within the Territory. The ordinance of 1787 was designed to accomplish these objects. It was the last great work of the Congress of the Confederation - that body whose devotion to freedom still attracts the homage of mankind. Among all its titles to honor, none shines brighter than this act. It is the foundation stone of the institutions of the free Northwest. It is the source of its prosperity and power. The power of Congress to establish the ordinance has been questioned, but never with success. It held the proprietary title in the land, and had complete jurisdiction over the territory in every respect. In virtue of this power, it had a right to pass this ordinance, to prescribe the conditions of settlement within its domain. The ordinance announces articles of compact between the original States and the people and States in the Territory, and declares that those articles should remain forever unalterable , unless by common consent. These articles establish the inviolability of contracts, the sacredness of personal liberty, and the entire freedom of conscience. They declared that "there should be neither slavery nor involuntary servitude within the Territory, otherwise than in the punishment of crimes." The object of these provisions was declared to be, to "extend the fundamental principles of civil and religious liberty," &c. Sublime act! The United American States - their perilous struggle for freedom being successful - declaring the terms on which their vacant territory might be settled and organized into States; and those terms, not tribute, not render of service, not subordination, but the perpetual maintenance of the genuine principles of American liberty, pronounced to be incompatible with slavery! And these declarations, these terms, were made the articles of a covenant between the original States and the people and the States which were to occupy the vacant territory - a covenant not to be broken without the consent of all parties. This ordinance was not the fruit of any sudden impulse. It was a deliberate act, and received the unanimous consent of all the States. It could not be affected by the adoption of the Constitution, for that was the act of the people of the original States, to which the people of the Territory were not parties. The Constitution left the ordinance in full force. Nor did anybody, at the time of the adoption of the Constitution, suppose that it impaired the effect of the ordinance. No sooner had the new Government gone into operation under the Constitution, than it legislated for the Territory upon the express terms of the ordinance. Nor did the admission of Kentucky into the Union, in 1792, affect the ordinance of 1787; for that was an act with which the people of the Northwest Territory had nothing to do. When Ohio came into the Union, in 1802, it was under an act of Congress which stipulated that the Constitution of the new State should not be repugnant to the ordinance of 1787, between the original States and the people and States of the Territory. The interdict against slavery was transferred to the Constitution of Ohio from the pages of the ordinance; and it was further declared, that "no alteration of the Constitution shall ever take place, so as to introduce slavery, &c., into this State." Ohio came into the Union by virtue of a right secured to her by the ordinance. As it was her right to come in under the ordinance, the act of entering into the Union could not abridge, impair, or modify, the articles of the ordinance. Her Constitution did not supersede the ordinance. It reaffirmed its provisions; and though they are nothing else than the principles of natural right and justice, yet the obligation of them is recognised and enforced by compact.
What are the obligations, therefore, of the people of Ohio, under the ordinance, and what the rights of citizens of other States, in relation to escaping servants? The clause in the ordinance runs thus : "Provided, always , That any person escaping into the same, from whom labor or service is lawfully claimed in any of the original States, such fugitive may be lawfully reclaimed," &c. This exception to the prohibition of slavery was purposely confined to the original States; that is, the right of reclaiming fugitives from service is confined to the citizens of the original States. If this right may be extended to citizens of other States, the prohibition in the ordinance against slavery may be narrowed and restrained; and if it can be narrowed, &c., it may be abolished. The prohibition must be maintained unimpaired, or must be surrendered altogether. If the right of reclamation can be extended to the citizens of new States, without their consent, an amendment to the Federal Constitution may be adopted without their consent, giving to the citizens of other States emigrating into Ohio the right to bring their slaves into that State, and hold them there. Up to the time of the admission of Ohio into the Union, a servant escaping into the Northwest Territory, from any State not one of the original States, could not be reclaimed. This is self-evident. Ohio came into the Union with the express understanding on her part that the principles of the ordinance were to prevail within her limits. She and her courts have never regarded the ordinance as abrogated by the act of her admission. It has been declared by the supreme court of Ohio, that the ordinance is of higher obligation than the State Constitution - 5 Ohio Rep., 414. And Mr. Justice McLean, speaking upon this subject, says: "But does not the compact prevent such an alteration without the consent of the original States? If this be not the effect of the compact, its import has been misconceived by the people of the State generally. They have worked upon this provision (of the ordinance) as a security against the introduction of slavery, even beyond the provisions of the Constitution. And the consideration has drawn masses of population to our State, who now repose under all the guaranties which are given on this subject by the Constitution and the compact." 1 McLean, 349.
Mr. Justice Story, in his notice of the ordinance, does not intimate any doubt as to the permanent obligation of its articles of compact - 3 Comm. on Const., 188. Will it now be said, that Ohio, by the act of entering into the Union, assented to a modification of the slavery prohibition in the ordinance? It may be said with as much truth, that the clause in the compact assuring to all the people of the United States the unobstructed navigation of the rivers of the Northwest, has been abrogated by the admission into the Union of the new States created out of the Northwest Territory.
The slavery compact and the navigation compact stand on the same foundation. - 1 McLean, p. 349. The navigation provision is a limitation, both on the General Government and the States, securing to the citizens of the Union valuable rights. - 9 Ohio Rep., p. 66. But Mr. Justice McLean (1 McLean, p. 349) thinks that the act of Congress is not in violation of the compact, but only an extension of the principle recognised in the compact to analogous cases. But this very extension constitutes the violation. The act of Congress, by enlarging the exception to the slavery prohibition clause, restricts the general rule of freedom, and impairs the obligation of the compact. These things being so, the act of 1793 is void, so far as it authorizes the reclamation of servants escaping from the State of Kentucky, which is not one of the original States.
Is the act of 1793 repugnant to the Constitution of the United States?
It is said that this question is no longer an open question, having received the full decision of this court that the act of 1793 is not repugnant to the Constitution. But no single decision of any tribunal, upon a question of such importance, ought to be regarded as final and conclusive. The most thorough investigation, the clearest apprehension, and the largest learning, are not absolute safeguards against error. This court has found occasion to revise, qualify, and sometimes overrule its former decisions; and it will assuredly listen to argument to induce it to change a single opinion, when that opinion was not only not unanimous, but sustained upon almost repugnant reasons.
The question before the court in the case
of Prigg vs. Pennsylvania was this: Are the statutes of the States which denounce as crime the abduction from their jurisdictions of persons residing or being within them, unconstitutional in their application to the masters, &c., who remove fugitive servants by force, and without any sanction from the laws of the State or of Congress? In other words, Does the Constitution of the United States confer on the masters of fugitive servants the right, in person, &c., to retake them, by force in any State in which they have escaped, and convey them without the limits of such State, &c., without process or judicial sanction; and are all laws of the States to prevent kidnapping, or abduction by private force, unconstitutional and void in their application to such cases? The court held that the master of a fugitive slave may pursue and recapture him, and convey him out of the State in which the seizure is made, without complying with the provisions of the act of Congress, or of the State laws on the subject; and that all State legislation making seizure and abduction penal, is unconstitutional and void. It was not at all necessary, in order to reach the decision to which the court came, to affirm the constitutionality of the act of 1793. No question as to the constitutionality of that act was necessarily before the court. Its constitutionality was, however, affirmed, but upon different grounds. Mr. Justice McLean held that the Constitution conferred exclusive power on Congress, but dissented from the opinion that the master of a fugitive could exercise the power of recapture, under the Constitution, in disregard of the provisions of the statute. He held, that for such acts the master was amenable to the criminal laws of the State which he thereby violated. The decision of the majority of the court has failed to command the assent of the non-slaveholding States. It has been submitted to, in the hope of ultimate reversal by the court itself. The right of reclamation, converted by this decision into the right of recapture, has been seriously impaired. The right of reclamation is placed by this opinion of the court upon a ground so subversive of the sovereignty and independence of the States, that it encounters a degree of hostility beyond precedent. The presence of the slave-hunter, ranging at will through the free States, and clothed with a power above all State laws, to seize and drag beyond State limits, without legal process, persons who are entitled to the protection of the law, is an anomaly not to be contemplated without irritation. Every attempt to put this power into exercise necessarily leads to commotion and violence, and gathers round the right of reclamation a public sentiment that must deprive it of all practical value.
But the act of 1793, so far as it relates to fugitives from service, is unconstitutional and void, because the provisions of the act are repugnant to several positive provisions of the Constitution, and because the Constitution confers on Congress no power to legislate at all upon the subject.
Some think that the leading object in forming the Federal Constitution was to secure the citizens of the slaveholding States their rights of property in slaves. What is there, in the history of the country or the Constitution, to warrant such an opinion?
The first act of the first Congress of the Confederation contained a clause, pledging that body and its constituents to discontinue the traffic in slaves. Two years afterwards, the Declaration of Independence was promulgated, in which it is declared that "all men are created equal," that "they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." Here is a declaration of the common law of the Union in respect to inalienability and inviolability of personal liberty. When the war of the Revolution ended, Congress told the States that they should remember that "the rights for which she (America) contended were the rights of human nature." - 1 Mad. Pap., App., 11. The Declaration was intended to assert the right of liberty, as inseparable from human nature itself. The answer to the question, Why did not the Congress of the Confederation abolish slavery throughout all the States? is, that Congress possessed no adequate powers to that object. It could announce principles of justice and right, but could not intermeddle with the concerns of the States. It could only give effect to those principles within territory subject to its exclusive jurisdiction. The moment it acquired exclusive jurisdiction over the Northwest Territory, it established the principles of justice and right, proclaimed in the Declaration of Independence, within that very territory. It dedicated that immense national domain to liberty forever. Thus that Congress directly asserted that slavery was incompatible with the fundamental principles of civil and religious liberty which constitute the basis of American Government. - 20 Mart. La. Rep., p. 699 - 4 Mart. La. Rep., p. 385. These national acts are conclusive proof that it was never intended that the American nation should be in any sense implicated in the support of slavery, but, on the contrary, that the original policy of the United States was to prohibit slavery in all territory subject to their exclusive jurisdiction, and to discountenance it in all the States over which it had no legislative control. And it was the general expectation, at that time, that slavery would disappear from the legislation and polity of every State at no distant period. Mr. Madison's Debates in the Constitutional Convention furnish ample evidence of this state of feeling. He himself declared that it was "wrong to admit in the Constitution the idea that there can be property in men." - 3 Mad. Pap., p. 1429. The words slave, slavery , or any terms equivalent to either, are not found in the Constitution; and even the word "servitude" was struck out, because it was thought to express the condition of slaves; and the word "service" inserted, because it was thought to express the obligation of free persons. And though the Constitution contains clauses which were designed to refer to slaves, not one of them refers to slavery as a national institution. On the contrary, they treat slavery as the creature of State law. The National Government is pledged by every public act of the nation, from 1774 to the present day, to exert its authority to exclude slavery from its domain, and discourage it elsewhere. The doctrine, therefore, that the Constitution was made to recognise slavery where it existed is not the doctrine of the days of the Constitution. That instrument
Miraturque novas frondes, et non sua poma.
This court is now called on to stamp with its disapprobation the "idea that there can be property in men."
The Government of the United States has nothing to do directly with slavery. It may and does recognise legal and political rights, growing out of the condition of certain persons under the laws of the States, but it cannot regard those persons as slaves. Under the Constitution, all persons, slave or free, are clothed with the highest attributes of personality, which belong of right and equally to all men - unless the Declaration of Independence be a fable. The Constitution knows no slaves. What is a slave? He is a person held as property by legalized force, against natural right. Slavery is the condition of such a person thus held. The law which enables a man thus to hold his fellow man must be local and municipal in its character. All jurists and judges agree in this. - Walker's Miss. Rep., pp. 36, 85; 2 A.K. Marsh., p. 467; 14 Mart. La. Rep., p. 402; 18 Pick., p. 215; 20 State Trials, p. 75. Law cannot make men property; but it can, within the sphere of its operation, declare that certain people may be held as property by others. It can punish resistance to the authority of the master, and compel submission to his disposal. But
"A man's a man, for a' that."
Such a law must be confined within the jurisdiction of the State which establishes it. It cannot be enforced in any other jurisdiction. The very moment a slave passes beyond the jurisdiction of the State that makes him a slave, he ceases to be a slave - because he continues to be a man , and leaves behind him the law of force which made him a slave . Even if a slave passes from one slave State into another slave State, so far as the law which made him a slave is concerned, he is free, he is beyond its reach. He may be re-enslaved under the law of State which he enters, or the slave State may refuse to recognise the relation imposed on him by the foreign law, and then he is absolutely free. - 4 Mun., p. 211; 1 Hen. and Mun., p. 133. It is evident that the Government of the United States cannot, under the Constitution, create, continue, or enforce the relation of master and slave between man and man, and, therefore, that no claim to persons as property can be maintained under any clause of the Constitution or any law of the United States. The clause in relation to fugitives from service takes up and deals with no other relation than that of master and servant. It is thought the Convention did not regard it as applicable at all to escaping slaves. It contains, however, no recognition of any right of property in man. It establishes no rule which does not apply with equal force to any servants held by law, whether white, black, or mulatto. If a fugitive slave may be reclaimed, it is not because he is a slave, but because he is a person held to labor. Any provisions, therefore, which would be unconstitutional in their application to other persons, would be equally so in their application to escaping servants; and all immunities secured by the Constitution to persons, without distinction, belong of right to persons escaped from service.
So far as the act of 1793 authorizes the reclamation of servants escaped into the Territories of the United States, it is clearly unconstitutional. If a citizen of a Territory cannot sue or be sued in the courts of the Union as a citizen of a State, surely a person escaped into a Territory cannot be reclaimed under a clause which authorizes only the reclamation of persons escaped into a State. So far, also, as the act of 1793 undertakes to confer judicial powers on State magistrates, it is clearly void. -1 Wheat., p. 304. If State magistrates act in relation to claims of fugitives from service, they must derive their power from the master, and act as his auxiliaries; they cannot act under the State. Again: this act is unconstitutional in all its leading provisions. It authorizes seizure and confinement by private force, without legal process, in contravention of the third clause of the 5th amendment to the Constitution, which says that "no person shall be deprived of life, liberty, &c., without due process of law." It is in vain to say that the fugitive is not a person, for the claim can only be maintained on the ground that he is a person. It is in vain to say that fugitives from service are not included within the amendment, for Virginia proposed that "no free person should be deprived," &c. Congress altered the phraseology to "no person," &c. - 2 Elliott's Deb., p. 483; 4 Ditto, p. 216. Nor is there any right of recaption at common law, as intimated by Mr. Justice Story, in the opinion of the court on the Prigg case. The right of recaption at common law is limited. The master may retake the servant, with the servant's assent, "so it be not in a riotous manner, or be attended with a breach of the peace." - 2 Black. Co., p. 4; 20 State Trials, pp. 41, 50; Hob., p. 61; 8 Yerg., p. 131. This act of 1793 is also repugnant to that provision of the Constitution which declares that "the right of the people to be secure in their persons, &c., against unreasonable searches and seizures, shall not be violated." How can the people be subject to more unreasonable seizures than under this act? The claimant selects the object of this seizure, who is not confined by the act to negroes or to slaves. He may seize any one whom he chooses. He may intend to kidnap. No matter - he may seize, confine, transport! And again: of what value is the jury trial amendment to the Constitution, if Congress can provide a mode by which every man may, at the option of a slave claimant, be put upon trial of his liberty without a jury? Congress has no power to authorize the seizure and trial of any person without a jury. If it has not the power to authorize the less aggression upon individual right in the matter of a man's money, because it is expressly forbidden by the Constitution, it surely has not the power to authorize the greater aggression upon individual right in the matter of a man's liberty. If it has, then the Constitution is waste paper, and we live under a despotism. - 1 Dana, p. 331.
The amendments to the Constitution rather announce restrictions upon legislative power imposed by the very nature of society and Government, (2 Con. Rep., p. 421,) than create restrictions which, were they not in the Constitution, the Legislature would be at liberty to disregard. They were designed to establish as written law certain principles of natural right and justice, which exist independently of such sanction. No Legislature is omnipotent. No Legislature can make men things. The Legislature cannot authorize injustice by law - cannot abrogate the securities of life, liberty, and property - cannot make a man a judge in his own case. No court is bound to enforce unjust law, but is bound, by superior obligations, to abstain from enforcing the law. - 1 Cond. Rep., p. 173; Dwarris, p. 11; 3 Jeremy Taylor, pp. 197, 212; Acts of the Apos., v. 29; 2 West. Law Journal, p. 286. Judicial enforcement of the claim to property in man cannot be at all reconciled with these principles. It is a claim not only unsupported by, but directly against, natural right. The act of 1793 and the law of recaption fall within the very terms of one of the descriptions of unauthorized legislation given by this court in Colder and Bull's case, for they make a man a judge in his own case and the executioner of his own sentence. The act of 1793 gives power to the claimant to seize the defendant without process of law; to take him by force before any magistrate the claimant may select; to hold him by force while the magistrate examines the evidences of claim; to remove him by force when the certificate is granted. The magistrate is entitled to no compensation under any law, but is left to make such a bargain with the claimant as he may. What is this but making the claimant judge, jury, and sheriff, in his own cause, and to establish his will as law? What is it but to legalize assault and battery and private imprisonment? Such acts of legislation are subversive of the fundamental principles on which civil society rests. The American people, speaking through the Constitution, have forbidden Congress to enact, and this court to enforce, any law which authorizes unreasonable seizure of privation of liberty, without due process of law. This prohibition nullifies the act of 1793.
The right of recaption exercised upon servants against their will had no existence at common law when the Constitution was adopted. If it existed in any of the States, it could not be enforced in others. It is a right dependent on local law. They, who claim, that, by the Constitution, the general presumption in favor of liberty is set aside to give room for the right of recaption, should produce express word. They show no intimation of such right but the Constitution contains an express prohibition against the exercise of such power under any such act of Congress. What, then, is the true construction of the constitutional provision in regard to escaping servants? It must be interpreted by the ordinary rules of construction applicable to all provisions of the Constitution. It is indefensible, "in order to clear the case of difficulty," (16 Peters, p. 610.) to adopt a special rule of interpretation for this escaping servant clause. It was not intended to secure the citizens of the slaveholding States the complete right and title of ownership in their slaves as property, in every State into which they might escape; nor was it a fundamental article, without the adoption of which the Union could not have been formed. The provision is in restraint of liberty, and must be construed strictly. One of the leading objects of the Constitution was to secure personal liberty, and every clause in derogation of this object must be restrained within the plain import of its terms. The true sense of any clause is ascertained by taking the whole of it together. Examining the clause upon these principles, there can be no doubt that the intention was to impose the duty of giving effect to the right of reclamation upon the States. The citizens of the free States would gladly leave the responsibility of legislating upon this subject to Congress; but it is plain that Congress cannot, constitutionally, legislate upon it. The clause in relation to fugitives from service is nothing else than a covenant or compact between the States - 18 Pick., p. 220. The great purpose of the framers of the Constitution was to create a National Government, and confer upon it adequate powers. A secondary purpose was to adjust and settle certain matters of right and duty between the States and the citizens of the different States, by permanent stipulations, having the force and effect of treaty stipulations. - 18 Pick., p. 220. This clause has nothing whatever to do with the creation of a Government. It declares that no person held to service shall be discharged, &c., but shall be delivered up, &c. It restrains the operation of State laws, and obliges each State to the performance of certain duties to the citizens of other States. It is, in the strictest sense, a clause of compact, and its execution, like that of other compacts, is to be left to the parties to it. Four similar clauses stand in juxtaposition in one article of the Constitution. The first stipulates that faith shall be given in each State to the public record, &c., of every other State, and that Congress may legislate upon this subject; the second relates to the immunities of citizens in the several States; the third concerns fugitives from justice; and the fourth is the clause under consideration. Neither of these three clauses declares that Congress may legislate upon its subject matter. This fact shows that they were regarded in the nature of treaty covenants, provision for the execution of which is to be made by the legislation of the parties thereto. The convention, it is plain, scrupulously and designedly abstained from giving Congress the power to legislate upon the subject matter of these three clauses, because its exercise would interfere with the right and duty of the State Governments to protect the rightful claims to personal liberty and security of all persons within their several jurisdictions. The clause under consideration was taken from the ordinance of 1787. In that ordinance, it was a clause of compact. It has not changed its nature by appearing in the Constitution. Besides, the record clause was taken from the Articles of Confederation, and the convention appended to it the right of Congress to legislate upon the subject matter of it, but did not do so with regard to the other three clauses. Expressio unius , &c. Nor is the power of Congress to legislate in regard to fugitives from service to be found anywhere in the general grant of power to that body in the 8th section of the 1st article of the Constitution. That grant says that Congress shall have power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States, or any department or officer thereof. It has been shown that the fugitive from service clause does not confer any power upon the Government of the United States, and it is very certain that it vests no power in any of its departments or officers. Congress has, therefore, no power from this source to legislate upon the subject. But Mr. Justice Story, in Prigg's case, maintains that, where a right is expressly given or a duty enjoined by the Constitution, Congress may legislate for the protection of the right or enforcement of the duty. - 16 Peters, p. 618. If the powers of Congress be of this character, they will certainly warrant the legislation in the act of 1793, and even more extensive legislation. Congress may, under such a construction of the Constitution, nullify State legislation forbidden by the Constitution; may enforce in South Carolina the rights of the negro citizens of Massachusetts and the quadroon citizens of Ohio; and may and should, under the clause which forbids privation of liberty, &c., abolish slavery throughout the United States!
Much yet presses for utterance. It is the glory of courts of justice, that they are regarded as the sanctuaries of human freedom. May such be the distinction of this court ! Execrandus, qui non favet libertati! The English courts, in obedience to this maxim, extinguished villeinage, and set up an impregnable barrier against new slavery. Will the favor shown to liberty in the courts of the monarchy of Europe be allowed to surpass that which liberty will receive in the courts of the republic of the world? This court will administer the law as it is written in the Constitution; but will it allow any construction of that instrument to conflict with that CONSTITUTION which antedates all human enactments, finds its seat in the bosom of GOD, and utters its voice as the harmony of the world? The decision to be made here must be rejudged at the tribunal of public opinion - the opinion of the civilized world. At home, a growing disaffection to the Constitution is manifest, founded upon its supposed recognition and support of human slavery. Abroad, the national character suffers the like reproach. May the judgment of this court on the present occasion commend itself to the reason and conscience of mankind, and may it rescue the Constitution from the undeserved opprobrium of lending its sanction to the idea that there may be property in men!
From The National Era, March 25, 1847