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 RECLAMATION OF FUGITIVES FROM SERVICE. 
 
 AN A R G U ]M E N T 
 
 FOR THE DEFENDANT, 
 
 SUBMITTED TO 
 
 THE SUPREME COURT OF THE UNITED STATES, 
 
 AT THE DECEMBER TERM, 1846, 
 
 IN THE CASE OF 
 
 WHARTON JONES vs. JOfIN VANZANDT. 
 
 BY S. P. CHASE 
 
 CINCINNATI: 
 
 PRINTED BY R. P. DONOGH & CO., 106 MAIN STREET. 
 
 1847. 
 
^(L4^/ 
 
 
<~io 
 
 ARGUMENT. 
 
 ME. CHIEF JUSTICE AND JUDGES : 
 
 I beg leave to submit to your con- 
 sideration an argument in behalf of an old man, who is 
 charged, under the act of Congress, of February 12, 
 1793, with having concealed and harbored a fugitive 
 slave. 
 
 Oppressed, and well nigh borne down by the painful 
 consciousness, that the principles and positions, which it 
 will be my duty to maintain, can derive no credit what- 
 ever from the reputation of the advocate, I have spared 
 no pains in gathering around them whatever of authority 
 and argument the most careful research, and the most 
 deliberate reflection could supply. I have sought instruc- 
 tion wherever I could find it; I have looked into the 
 reported decisions of almost all the state courts, and of 
 this court ; I have examined and compared state legisla- 
 tion and federal; above all, I have consulted the consti- 
 tution of the Union, and the history of its foi-mation and 
 adoption. I have done this, because I am well assured, 
 that the issues, now presented to this court for solemn 
 adjudication, reach to whatever is dear in constitutional 
 hberty, and whatever is precious in political union. Not 
 
 John Vanzandt alone — not numerous individuals only 
 
 but the States also, and the Nation itself must be deeply 
 
4 PRELIMINARY REMARKS. 
 
 affected by the decision to be pronounced in this case. 
 I ask, therefore — and the character of this venerable 
 court strongly assures me I slrall not ask in vain, — for a 
 deliberate, unprejudiced, and thorough examination of 
 the several positions I shall assume, and of the reason- 
 ings and arguments by which they are defended. 
 
 I shall discuss the issues, presented by the record, with 
 freedom and with earnestness: but I shall advance 
 nothing in the character of a mere advocate, bound to 
 his cause only by his retainer. When great questions, 
 affecting the most sacred personal rights of the People, 
 and the most delicate relations of the States, and the 
 most important duties of the Government, are to be 
 examined before a tribunal clothed with the awful and 
 affecting responsibility of final decision, it ill becomes a 
 lawyer, called to bear a part in the discussion, to strive 
 for victory in disputation, or the triumph of a side. I 
 shall do no such violence to my own convictions of right 
 and duty, as to urge here any argument or statement for 
 which I am not willing to be held responsible as a 
 citizen and as a man. 
 
 And here I will frankly say, at the outset, what all 
 must know, that the counsel for the defendant cannot but 
 feel. — I am, I confess, somewhat embarrassed by the pe- 
 culiar constitution of the tribunal which I address. 
 
 I do not, indeed, permit myself to doubt that every 
 consideration of interest, and every feeling of prejudice 
 will be, as far as practicable, excluded from all influence 
 upon the decision of the Court. On the contrary, the 
 expectation, which I indulge with confidence, of a decision 
 favorable to the defendant upon some of the questions 
 presented by the record, is fully sanctioned by the 
 weight of reason and authority, which the impartiality 
 
PRELIMINARY REMARKS. O 
 
 of judges in slaveholding states has supplied, or has 
 greatly increased. 
 
 Other questions, however, are presented and must be 
 discussed, in the argument of which I must expect to 
 encounter some hostile prepossession, opinion and au- 
 thority. My fear is, that what I shall deem it my duty 
 to advance on these questions, may be regarded by the 
 Court as a rash attempt to unsettle established doctrines, 
 and, by some of the members of the Court, as an 
 unwarrantable attack upon constitutional guaranties, in 
 which they, with many other citizens, have a peculiar 
 interest. 
 
 I ask, however, for a dispassionate Hearing. If what 
 I urge has not the sanction of reason and truth, let it be 
 condemned: if it has, I trust it will prevail — I am sure it 
 will ultimately prevail — whatever opinion and authority 
 may stand in the way. Opinion and authority may 
 stand for law, but do not always represent the law. 
 There was a time, and a long time, when opinion and 
 authority condemned as rash the doctrine that juries 
 possess the right to determine, in hbel cases, not merely 
 the question of publishing, but the general question of 
 hbel or no hbel; and yet the earlier advocates of the 
 doctrine lived to see it established as law. So, for many 
 years, opinion and authority sanctioned the doctrine 
 that slaves might be held in England; but, after 
 thorough investigation, this doctrine was overthrown, and 
 that maxim, so fraught with important results, established, 
 that slavery is strictly local, and cannot be extended 
 beyond the territorial hmits of the state allowing it. 
 
 Encouraged by these recollections, and assured of the 
 disposition of the Court to ascertain and declare the law, 
 whatever it may be, I shall proceed to state the facts out 
 
6 
 
 THE FACTS OF THE TRANSACTION. 
 
 of which the questions before the Court have arisen. I 
 make this statement, partly from the abstract of the evi- 
 dence contained in the report of the case by Mr. Justice 
 McLean, and partly from my own notes and recollection, 
 because it seems to me that a general knowledge of the 
 facts of the transaction will conduce to a clearer under- 
 standing of questions of law. 
 
 The defendant, John Vanzandt, is an old man, of lim- 
 ited education and slender means, but distinguished by 
 unquestioned integrity and benevolence of heart He is a 
 farmer, occupying a small property in the neighborhood of 
 Cincinnati, and maintaining himself and family by the 
 sale of its products in the markets of the city. On Sat- 
 urday, the 23rd day of April, 1842, after attending the 
 market as usual, he went out of the city to Walnut Hills, 
 where he passed the night with a friend. The next 
 morning, when he rose very early to go home, he found 
 in the road a company of negroes, consisting of a middle 
 aged man, his wife, their children, the wife's mother, and 
 two or three other persons, — nine in all. These persons, 
 it appears, had escaped from slavery in Kentucky, and 
 had been conducted, some twelve miles or more, from 
 where they crossed the Ohio, to Walnut Hills. Vanzandt 
 saw them for the first time in the road where he found 
 them. He had nothing to do with their escape. But, 
 upon their solicitation, or that of the person who had 
 conducted them to Walnut Hills, he undertook to convey 
 them in his wagon to Lebanon or Springborough, thirty 
 or thirty-five miles northward from Cincinnati. There 
 was no evidence that he had any positive knowledge that 
 they were fugitives from slavery, or any information what- 
 ever on the subject, except what he derived from tlie 
 
FACTS OF THE TRANSACTION THE SUITS BROUGHT. 7 
 
 Statements of the negroes themselves. He believed, doubt- 
 less, that they were fugitive slaves, but he had no notice 
 
 whatever, — unless such intelligence as this be notice, 
 
 that the negroes had been held to service or labor in 
 Kentucky under the laws thereof, and had escaped from 
 that state into Ohio. 
 
 Under these circumstances he received them into his 
 wagon, which was a covered vehicle of the kind common- 
 ly used by farmers attending the markets, and proceeded 
 towards Springborough. One of them, a man named An- 
 drew, took his seat in front, in open view, as the driver of 
 the wagon. 
 
 They had travelled about fifteen miles in four hours, 
 when their farther progress was arrested by two bold vil- 
 lains, who, without any legal process, without any au- 
 tliority or request from any claimant or any other person, 
 in broad day, in open breach of the laws of Ohio, under- 
 took to seize the blacks and carry them out of the state 
 by force, on suspicion that they were fugitive slaves. In 
 this daring and criminal attempt they were successful 
 except as to Andrew, the driver, 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 re- 
 covered. He never returned. 
 
 Under these circumstances the plaintiff prosecuted two 
 suits against Vanzandt: one in case, to recover the dam- 
 ages he had sustained by reason of the loss of Andrew, 
 and the expenses of recapturing the others, and another 
 in debt to recover the penalty of five hundred dollars 
 given by the Act of 1793. The first of these actions is 
 still pending in the Circuit Court: the second, which was 
 
8 ' THE QUESTIONS CERTIFIED. 
 
 grounded upon alleged acts of the defendant in relation 
 to Andrew only, has been brought into this Court upon a 
 certificate of division upon various questions, which arose 
 during the progress of the trial, and, after verdict, upon a 
 motion in arrest of judgment. 
 
 The questions, which arose during the progress of the 
 trial and are certified for decision, are these : 
 
 1. Whether, under the 4th section of the act of I2th of February, 1793, respect- 
 ing 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 third 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 dol- 
 lars 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 confes- 
 sion 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 es- 
 caped 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. 
 
 G. Whether such a transportation of him in an open wagon, whereby the servi- 
 ces 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 ob- 
 ject, is a harboring of the fugitive within the statute. 
 
THE QUESTIONS CERTIFIED. 9 
 
 The questions upon the motion in arrest, are these: 
 
 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 Ken- 
 lucky into the State of Ohio. 
 
 2. Whether said counts contain the necessary averment of notice that said An- 
 drew 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 An- 
 drew 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 declaration, upon which the plaintiff went to tri- 
 al, contained four counts. The first charged the defen- 
 dant with the offence of harborings detaining^ concealing 
 and keeping Andrew, a fugitive from service ; the second 
 with the offence of concealing the fugitive ; the third with 
 the offence of obstructing the claimant in an attempt to 
 arrest the fugitive; the fourth with the offence of res- 
 cuing the fugitive from the claimant after seizure. 
 
 The verdict of the jury was general; but, after its ren- 
 dition and entry, and after a motion in arrest of judg- 
 ment, an entry was allowed to be made upon the jour- 
 nal, that the plaintiff had abandoned the third and fourth 
 counts before the cause was submitted to the jury. This 
 entry was allowed upon the statement of the counsel 
 for the plaintiff, that these counts were abandoned during 
 the progress of the trial, though no application was made 
 to the court to instruct the jury to disregard them. 
 
 The questions, now before the court in relation to the 
 sufficiency of the declaration, arise, therefore, upon the 
 first and second counts only. 
 
10 PLAINTIFFS DECLARATION. 
 
 These are as follows: 
 
 Wharton Jones, a citizen of and resident in Kentucky, by Charles 
 Fox his attorney, complains of John Vanzandt 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 30 years, Letta aged about 30 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 licence 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 Ham.ilton county, in the State and District of Ohio, and 
 was there a fugitive from labor ; and the defendant well knowing that the said An- 
 drew 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 un- 
 justly intending to injure the plaintiff and to deprive him of said slave and his ser- 
 vice; 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 
 knowin<>-ly 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 mirrht 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 30 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 licence 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, 
 ami the defenilant had notice tliat the said Andrew was the slave of the plaintiff 
 and ;i 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 s;iid slave from the plaintiff, in consequence 
 of which the plaintiff lost said slave and was deprived of his service and of all ])ro- 
 fits, i)enefits and ailvantagcs which might nnd otherwise would have arisen and 
 accrued to the plaintitT from such slave and his service, contrary to the statute of 
 the United States in such case made and provided, whereby the defendant forfeited 
 
IMF, A CI' OF CONCiUES^. 11 
 
 the sum of live hundred dollars to and tor the use of the plaintiti', vet thoucrh often 
 requested he has not paid the same nor any part thereof, to the damage of tiu- 
 plaintifl' in the sum of Five Hundred Dollars, and therefore, &c. 
 
 The claim of the plaiiitilu niride in this declaration, 
 rests wholly upon the act of Congress of 1793. ! there- 
 fore (juote the third and fourth sections, which alone 
 touch upon tlie matters in controversy, 
 
 "5 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 north-west or south of the river Ohio, un- 
 der 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 judjre 
 of the circuit or district courts of the tJnited States, residing or being within the stale, 
 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 maor- 
 istratc, either by oral testimony, or affidavit taken before and certified by a macris- 
 trate 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. 
 
 " 5 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 afore- 
 said, 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 legislative provisions were designed lo give 
 effect to the last clause of the second section of the 
 fourth article of the Constitution of the United States, 
 which 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 therein, be discharged 
 
12 QUESTIONS FOR ARGUMENT. 
 
 from such service or labor, but shall be tlelivered up on claim of the party to whom 
 such labor or service may be due." 
 
 Having thus stated the questions certified for decision, 
 and having recited so much of the record and of the law 
 and constitution as seems necessary to a clear understand- 
 ing of them, I shall proceed, at once, to the discussion 
 before me, again earnestly invoking the patient and de- 
 liberate attention of the Court. 
 
 It would be as useless, as it would be tedious, to take 
 up and examine the questions one by one in the order in 
 which they are presented by the record. Upon the first, 
 in my judgment, no difference of opinion can exist. No 
 one, I think, would contend that a writfeji notice from the 
 claimant of a fugitive from service is essential to the 
 offence of harboring or concealing as defined by the stat- 
 ute. Several of the questions, also, present the same 
 point, in different phrases and with varied circumstances, 
 and an argument upon each of these is manifestly need- 
 less. 
 
 I shall adopt, therefore, the order of investigation 
 which seems to me best adapted to a perspicuous exhib- 
 ition of the true merits of the controversy. I shall en- 
 quire : 
 
 1. Whether the plaintiff's declaration be sufficient; 
 and, under this head, what are the requisites of notice 
 under the act of 1793? 
 
 2. What acts constitute the offence of harboring or 
 concealing under the statute? 
 
 3. Whether the act of 1793 be consistent with the 
 provisions of the Ordinance of July 13, 1787? 
 
 4. Whether the act of 1793 be not repugnant to the 
 Constitution of the United States? 
 
ACT OF 1793, A PENAL STATUTE. 13 
 
 I have no doubt that both first and second counts of 
 the plaintiff's declaration — the only counts now open to 
 investigation — are insufficient. 
 
 It has never been controverted, that the provisions of 
 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 under a penal 
 statute; and he who seeks a penalty, in addition to the 
 damage he has actually sustained, is entitled to no favor 
 in a Court of Justice. The act, under which he claims, 
 must be strictly construed: and the declaration, by which 
 he claims, 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 person, if those acts do not make the very 
 case described by the law, or if he does not state in his 
 declaration, with strict certainty, the facts which make 
 that case, he must resort to such remedies as the com- 
 mon law, or other provisions afford him. He cannot be 
 heard to demand the penalties given by the act. 
 
 It may be said that the act gives a remedy, as well as 
 denounces a penalty, and must therefore be construed as 
 a remedial law. The answer is, — if it be admitted that 
 the last clause of the act is remedial in its character, — 
 that the rule is well settled, that where an act is reme- 
 dial in one provision and penal in another, that the penal 
 provision is to be construed strictly, while the remedial 
 provision may be construed liberally.^ And there is no 
 case to be found where a provision of an act which im- 
 
 (1) Dwarris on Statutes, 754; Short v. Hubbard, 9 Eng. Com. Law. 431. 
 
14 PENAL STATUTE TO BE STRICTLY CONSTRUED. 
 
 poses a penalty has been construed otliervvise than strict- 
 ly, with whatever other provisions it may stand associa- 
 ted. There is no more reason for construing a penal pro- 
 vision liberally, because it is preceded or followed by a 
 remedial provision, than may be urged for construing a 
 penal act liberally, because other acts on the same sub- 
 ject matter, in the same statute book, are remedial in 
 their nature. 
 
 To array authority on points like tliese may seem vain 
 parade; but I deem it my duty, in this case, to risk the 
 imputation, rather than hazard, by possibility, the cause 
 committed to my defence. 
 
 A penal statute, as defined by Mr. Dwarris, is a legis- 
 lative act, "whereby a forfeiture is inflicted for transgress- 
 ing the provision therein contained."^ Such a law, we 
 are assured by the same author, " must receive a strict 
 construction. It cannot be extended by construction. — 
 The law does not allow of constructive offences or of 
 arbitrary punishments. JVo man incurs a penalty, iin- 
 Icss the act, which subjects him to it, is clearly within the 
 SPIRIT and THE LETTER of the Statute imposing such pen- 
 altyy " If these rules are violated, the fate of accused 
 persons is decided by the arbitrary caprice of judges and 
 not by the express authority of the laws."- And these 
 rules are said to be " of that higher sort of maxims, that 
 as re<ful(v, rationales, and not positivce, and the law will 
 rather endure a particular offence to escape without punish- 
 ment than violate such a rule." ^ These rules, indeed, 
 are essential to the very existence of a free government; 
 for there can be no substantial freedom, no true security 
 
 (1) Dxoarris, 736, 7. 
 
 (2) Per Best, C. J., Fletcher v. Lord Sondes, 3 Bing. 580. 
 
 (3) Divarris on Statutes, 736. 
 
CASES OF STRICT CONSTRUCTION. 1 5 
 
 where the citizen is Hable to be deprived, under penal 
 laws, of hfe, liberty or property, in any case where the 
 offence is not brought, by allegation and proof, strictly 
 within the terms used by the Legislature in the definition 
 or description of it. 
 
 And these rules have received the fullest sanction from 
 the writings of American Jurists and the decisions of 
 American Courts. 
 
 "To recover a jjenalty on a statute," says Mr. Dane, 
 in his valuable Abridgment of American Law, "the 
 express mode, therein named, must be adopted and pur- 
 sued, for the statute gives the right, and it is penal, and 
 must be strictlij adhered to."^ 
 
 In a case where the statute subjected the "sheriff or 
 officer," to whom an execution was ''directed'" to the 
 payment of the debt and costs, and thirty per cent, 
 damages, for failure to return the writ, and judgment had 
 been rendered against a deputy sheriff for such a failure, 
 the Court of Appeals of Kentucky reversed the judg- 
 ment, on the ground that executions were always ''di- 
 rected'' to the "sheriff;' and therefore, a deputy sheriff 
 could not be made liable. The Court said, "The act is 
 certainly of a highly penal character, and, consequently, 
 in deciding upon cases attemjHed to be brought within its 
 operation, no liberality of construction ought to he in- 
 duhred. Observing a strict construction, therefore, and 
 deciding according to the literal import of the act, we 
 
 (1) 5, Dane, 244. ^8:6 Dane. 58R, { 16. I an. happy to find my position con- 
 firnied by one of the learned Counsel for the plaintiff in this case. Mr. MoreheAd 
 in an able essay published in the Western Law Journal, V. 4, p. HI, says: "I have 
 supposed it to be a maxim of universal accceptation, that p^nal statutes shall be 
 construed strictly; that is to say, that they shall hav^.'g litkrai. construction; and I 
 can perceive no just reason why such a construction .should not be applied to the 
 Constitution of the United States, in cases of trials for capital offences." 
 
16 CASES OF STRICT CONSTRUCTION. 
 
 can have but little hesitation in affirming that the motion 
 against the deputy sheriff cannot be sustained.'" 
 
 In a later case, under a statute which prohibited the 
 keeping of gaming tables, at which any game of chance 
 should be " played for money or any other thing,''^ a 
 person was indicted for keeping such a table, at which 
 the game of faro was played for "monc?/," and the proof 
 was that the money played for was bank notes, and the 
 defendant was convicted. The Court of Appeals, how- 
 ever, reversed the judgment, on the ground that, in penal 
 actions, the charge must be proved as laid, and proof of 
 }3lay for hank notes was not proof of play for money. 
 The Court said : "Though the betting of bank notes is 
 equally illegal^ and would render the defendant liable to 
 the same penalty as the betting of money, yet, as the 
 'proof must fit the charge laid., the charge was not made 
 out in this case.^ 
 
 In another case the same Court reversed a judgment for 
 a fine and treble tax, and said: "The proceedings are 
 variant from the mode prescribed by the law; which 
 being penal must be strictly and literally pursued."^ 
 
 Under a statute of Maryland, any ]:)erson who gives a 
 pass, assists by loan or otherwise, the transporting of 
 slaves out of the State, or unlawfully otherwise deprives 
 a master of his slave, is subjected to a fine, and also to 
 a civil suit for damages. Under the penal provision of this 
 act, judgment for the penalty was rendered in an inferior 
 Court, upon an indictment which contained no allegation 
 that the slave was lost to the master in consequence of 
 
 (1) Caldwell V. Holley, 1 A. K. Marsh, 429. 
 
 (2) 2 Statutes of Kentucky, 756. 
 
 (3) Fryer v. Commonwealth, 2 Dana, 298. 
 
 (4) McCall V. Clark County Court, 1 Bibh, .516. 
 
CASES OF STRICT CONSTRUCTION. 17 
 
 the defendant's acts. The case of the defendant was 
 presented to the Court of Appeals by Mr. Chief Justice 
 Taney, then at the bar, and the judgment was reversed 
 for the omission of the allegation of loss of service.^ 
 
 In Tennessee, forging is defined by statute to be the 
 "fraudulent making or alteration of a writing to the preju- 
 dice of another's right ;" and it was held by the Supreme 
 Court that fraudulently writing a certificate of freedom 
 and delivering the same to a slave is not forging within 
 that definition ; because such an instrument, being void, 
 can prove nothing if offered in evidence, and therefore is 
 not to the legal prejudice of a third party. The opinion 
 of the court was delivered by Mr. Justice Catron, then 
 Chief Justice of Tennessee, who remarked in conclusion, 
 "much as we may regret the want of power to punish the 
 defendant on this instrument, still we think he is clearly 
 not subject to the penalties of felony, and the judgment 
 must be arrested."^ 
 
 In Alabama, also, it has been repeatedly held that an 
 indictment, framed on a statute, must conform strictly 
 to the words of the statute. Where an indictment for 
 stealing slaves, omitted the allegation that they were stol- 
 en from or out of the possession of the master or overseer 
 it was held bad by the Supreme Court.^ It was not 
 enough that stealing from the possession of any other 
 than the master or overseer wrought the mischief intend- 
 ed to be prevented. It was not enough that the words 
 " from or out of," might, by a slight accommodation, be 
 held to mean in possession or out of possession. The 
 court would not inflict a penalty unless the act was with- 
 in the terms of the prohibition, nor, of two possible inter- 
 
 (1) 6 Harr. £(■ Johns. 10. (2) State v. Smith, 8 Yerg. 150. 
 3) State V. Brown, 4 Port. 412. 
 
18 PENAL STATUTES TO BE STRICTLY CONSTRUED. 
 
 pretations, adopt tliat which would operate most strin- 
 gently against the accused. In another case, upon the 
 same principles, the same court held that an indictment 
 for stealing a slave could not be supported by proof that 
 the defendant aided the slave to escape.^ 
 
 And this court has declared that " the rule that penal 
 lavi^s are to be construed strictly is pehaps not much less 
 old than construction itself. It is founded on the tender- 
 ness of the law for the rights of individuals ; and on the 
 plain principle that the power of punishment is vested in 
 the legislative, not in the judicial department. It is the 
 Legislature not the Court which is to define a crime and 
 ordain its punishment."^ 
 
 And not only is it universally true that penal laws shall 
 be construed strictly, and shall not be extended by con- 
 struction, and that, in penal actions, the declaration must 
 follow the statute and state a case precisely within its 
 terms; but in every such action the declaration must aver 
 that the offence alleged w as committed contra Jormam 
 statuti^ or against the provisions of the statute. The au- 
 thorities to this point are full and inflexible.^ 
 
 It is no small satisfaction to me to find that the rule in 
 relation to penal statutes, and declarations in penal ac- 
 tions, which I have endeavored to establish has been ap- 
 plied in the construction of the very statute now under 
 consideration, in an action for same penalty which the 
 plaintiff in this case seeks to recover. In the case of Sim- 
 mons^ Exparte^^ Mr. Justice Washington declared that the 
 constitution and the kuv relating to fugitives from service 
 are not susceptible of a construction, broader than the lan- 
 
 (1) 8 Port, 412. (2) United States v. WiUberger, 4 Pet. Cond. Rep. 569 
 
 (3) Chitty on Plead. 404, 5, 6; 1 Gnllison's Rep. 259 <^ 265, 6. 
 
 (4) 4 tVash. 397. 
 
CONSTRUCTION OF ACT OF 1793 BY JUDGE WASHINGTON. 19 
 
 guage used. And in the (mse of Hill v. Low^^ which 
 came before him on writ of error, prosecuted to reverse 
 a judgment given for the penalty imposed by the act of 
 1793, the same learned judge held that obstruction, hin- 
 drance, or interruption, is no offence under the act of Con- 
 gress unless it be interposed previous to or whilst the 
 claimant or his agent is in the act of seizing or arrest- 
 ing the fugitive, or is endeavoring to make such sei- 
 zure. After the arrest is consummated, "no subsequent 
 obstruction, whilst the custody continues, although it 
 should afford an opportunity for an escape or be a re- 
 straint upon the free will of the claimant, can constitute 
 the offence of obstruction, or hindrance mentioned in the 
 fourth section of the act." So, exciting or advising a 
 person, arrested as a fugitive from service, to fly, if no 
 actual force or intimidation be employed to deliver him 
 from custody, cannot constitute a rescue. But obstruc- 
 tion or hindrance, of the claimant or his agent, with 
 force or by intimidation, for the purpose of enabling the 
 fugitive to escape, in consequence of which the fugitive 
 does escape, is a rescue. So all interposition or resist- 
 ance to the claimant or his agents in attempting to re- 
 capture the fugitive after the original arrest and an es- 
 cape is an obstruction or hindrance. 
 
 The reason for these distinctions is plain. Obstruction 
 or hindrance of the claimant or his agent, in seizing the 
 fugitive, is within the terms of the act. Obstruction or 
 hindrance of the claimant in holding the fugitive, after 
 seizure, is not within the terms of the act, and cannot be 
 brought within them except by construction, which cannot 
 be allowed. The obstruction or hindrance last described, 
 if it be intended to aid and actually causes the escape of 
 
 (1)4 JVash. 328. 
 
20 CONSTRUCTION OF ACT OF 1793 BY JUDGE WASHINGTON. 
 
 the fugitive, will amount to a rescue ; but if the claimant 
 wishes to recover the penalty imposed by the act in such 
 a case, he must, in his declaration, state a case of 
 rescue, and not a case of obstruction or hindrance. Ex- 
 citing or advising a slave to fly after arrest, is not a 
 rescue ; because a rescue is " a forcible setting at lib- 
 erty;"^ and there can be no rescue without force. Ex- 
 citing or advising flight, therefore, though of precisely the 
 same mischief as rescue, will not subject the offending 
 party to the penalty of the act, but the party injured 
 must be left to his action for damages. 
 
 The same rule is applied by the same learned judge - 
 in determining what fugitives are described by the 
 Constitution and the law. He says, the act of Congress 
 " relates to fugitives from one State to another. The 
 words of the law are 'when any person held to labor in 
 any of the United States * * under any of the laws 
 thereof, shall escape into any other of the said States, * * 
 the claimant or his agent may seize such fugitive from 
 labor,"* and upon proof, * * that the person so seized 
 under the laws of the vState 'from which he fed'' owes 
 service, * * it is made the duty of the judge to grant 
 the certificate. The second section of the fourth article 
 of the Constitution of the United States is confined to 
 persons held to service or labor in one State under the 
 laws thereof, escaping into another."" 
 
 The persons entitled to exercise the right of recapture, 
 are described with no less precision by the Constitution 
 and the law ; and it is equally inadmissible to extend that 
 right by construction to any other persons than those 
 thus described. " The party to whom such labor or ser- 
 vice may be due," is the description of the Constitution. 
 
 (1) 1 Russ. on Crimes, 338. (2) Simmons, Ex parte, 4 JVaih. 392. 
 
PROPOSITIONS ESTABLISHED. 21 
 
 " The person to whom such labor or service may be due, 
 his agent or attorney," is the description of the law. 
 Accordingly Mr. Chief Justice Taney, speaking of the 
 act of Congress, in the Prigg case, said, "By that law 
 the power to seize is given to no one, but the owner, his 
 agent or attorney."^ 
 
 May I not now safely claim the following points as 
 firmly estabhshed? 
 
 1. That the provision of the act of 1793, imposing a 
 penalty for certain offences is a penal law. 
 
 2. That a statute imposing a penalty must be strictly 
 construed, and can never be extended by construction so 
 as to embrace any other offences, than those precisely 
 described in it. 
 
 3. That a declaration under such a statute, must state 
 the offence, if not in the very language of the statute, 
 yet in terms which describe the offence with complete- 
 ness and precision. 
 
 4. That a declaration under such a statute must aver 
 in terms, that the offence was committed contra formam 
 statufi, or against the provisions of the statute, before 
 the plaintiff can claim that an action has accrued to him 
 for the penalty. 
 
 Let the declaration in the record be examined by these 
 tests. What is essential to such a declaration is quite 
 plain. It must state a case which entitles the plaintiff to 
 the penalty imposed by the act upon the harborer of the 
 fugitive from service. It must state, then, that a person 
 held to service or labor by the plaintiff in Kentucky, un- 
 der the laws thereof, has escaped into Ohio. The per- 
 son escaping must be named, or sufficiently described; 
 
 (1) \6 Peters, (332. 
 
22 WHAT THE DECLARATION SHOULD CONTAL\. 
 
 for the plaintiff necessarily knows what servant has es- 
 caped, and the defendant has a right to be fully advised 
 of the charge he is to answer, and he cannot be so ad- 
 vised unless the declaration name or describe the fugitive 
 whom he is alleged to have harbored. The declaration 
 must allege, also, that the defendant harbored the fugitive 
 after notice that he had been held to service or labor in 
 the State of Kentucky under the laws thereof, and had 
 escaped thence into the State of Ohio. 
 
 Do the averments of the plaintiff's declaration satisfy 
 these requisitions? Let us examine it. 
 
 The Court will not fail to notice, that the declaration 
 is not drawn in conformity with any approved precedent 
 of a declaration in debt for a penalty. The whole state- 
 ment of both counts is taken, with slight modifications, 
 from a form in Chitty for a declaration in case for dam- 
 ages occasioned to the plaintiff by harboring the plain- 
 tiff's servant.^ The conclusion, which is wholly informal, 
 seems to have been intended by the pleader, as a con- 
 clusion in debt. Not much accuracy is to be expected 
 in a declaration so framed, and not much is to be found. 
 
 The first count commences by stating, that a certain 
 person, to wit, "Andrew, aged about thirty years, Letta, 
 aged about thirty years, was the slave * * of the plain- 
 tiff," &c. There is nothing to show to which of these 
 two persons, Andrew or Letta, the allegation of escape 
 is intended to apply. It is, obviously, not intended to ap- 
 ply to both, for it refers only to a single person. If ap- 
 plied to one or the other, in the alternative, the count is 
 then clearly bad for uncertainty; and if it be left unde- 
 termined to which of the two it properly applies, then 
 
 (1) 2 Chitty on Plead. 646. 
 
DECLARATION DEFECTIVE: NO ESCAPE AVERRED. 23 
 
 the count is, also, bad for the same reason. It may be 
 held, that this uncertainty is cured by the verdict which 
 has been rendered in this case, and I refer to it mainly 
 for the purpose of directing attention to the carelessness 
 with which the declaration is drawn. 
 
 The next objection to the first count is, I must think, 
 fatal. After alleging that the fugitive, " at Boone Coun- 
 ty, in the state of Kentucky, * * ow^ed service and was 
 held to labor to the plaintiff by the laws of the State of 
 Kentucky," the count proceeds thus: "unlawfully, wrong- 
 fully, * * without the hcence 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." The object of the allega- 
 tion, it would seem, was to state that the servant escaped 
 from the plaintiff to the defendant^ and the county of the 
 plaintiff, and the county and state of the defendant, are 
 mentioned only as their respective places of residence. 
 But has the pleader, in fact, although accidentally, stated 
 an escape within the meaning of the act of Congress? 
 The clause of the constitution relating to fugitives fromp 
 service, — and the act cannot enlarge, and does not pro- 
 fess to enlarge, the constitution, — is ''''confined to persons- 
 held to service or labor in one state and escaping to an- 
 other." ^ The constitution and the law apply, and were 
 intended to apply, to this single class of persons only. 
 Does this declaration, then, aver that the servant in ques- 
 tion escaped from the state in which he was held to 
 
 service into another state. The allegation is, that " 
 
 departed and went away," — and I will admit that these 
 
 (1) Per Washington, J., 4 Wash. 396. 
 
24 DECLARATION DEFECTIVE; NO ESCAPE AVERRED. 
 
 words as used in the declaration may be considered 
 as equivalent, in import, to the word escaped, — -from the 
 service of the plaintiff of said Boone County, and came 
 to the defendant at Hamilton County in the vState of 
 Ohio." There is no allegation, even, that any body es- 
 caped, for the verbs "'departed and went away," have 
 no nominative. But admit — what can be admitted no 
 otherwise than for the sake of argument, — that a nomi- 
 native may be supplied by intendment, it remains clear 
 that every fact alleged may be truly stated, and yet no 
 escape such as the constitution and the law contemplate, 
 may have taken place. 
 
 Under what law was the fugitive held? A certain 
 person, it is alleged, was the slave of the plaintiff at 
 Boone County in the state of Kentucky, and owed ser- 
 vice to the plaintiff by the laws of Kentucky, not of the 
 state of Kentucky, but of Kentucky. And let me ask, 
 if this allegation respected New York, would it be held 
 sufficient, when the word New York might be taken to 
 describe the city as well as the state? And if not, can 
 the allegation in the count before us be held sufficient? 
 May it not be true, and yet may not the servant have 
 been held under other laws than those of the state of 
 Kentucky? 
 
 But, dismissing this point, let me present a more seri- 
 ous one. Certainly the allegation that the servant de- 
 parted from his master's service without his consent, and 
 came to the defendant in Ohio, is not an averment of 
 the escape contemplated by this act. This allegation 
 may be true, and yet the master, though o/* Boone Coun- 
 ty, may have been in Ohio, with the servant, at the time 
 of the escape ; or the servant may have departed from 
 his service in Boone County without his consent, and af- 
 
NO PROPER AVERMENT OF ESCAPE. 2.'3 
 
 terwards may have been licenced to come into Ohio. 
 
 And, if this be so, this count in the declaration states 
 no title to the penalty. 
 
 It will not do to say, that the language used may be 
 applied, by a liberal construction, to the case of an es- 
 cape from the state of Kentucky into the state of Ohio. 
 We have nothing to do with liberal construction in penal 
 actions. The numerous authorities I have already cited 
 establish beyond a question, that the law will not endure 
 a liberal construction in ftivor of him who claims a pen- 
 alty. He must state and prove the precise case in which 
 the law inflicts the penalty, or he cannot recover it by 
 the judgment of a court.^ 
 
 The plaintiff, in this case, is bound to aver and prove, 
 that the alleged fugitive was held to service or labor in 
 the state of Kentucky under the laws thereof, and es- 
 caped from that state into Ohio. Has he averred such' 
 an escape? Is departing and going away from a citizen 
 of Boone County in Kentucky, and subsequently coming 
 to a man in Ohio, necessarily an escape from the state 
 of Kentucky into the state of Ohio? May not both 
 these facts exist, in a great variety of cases, in which 
 there is no escape from one state into the other? If to 
 escape from one state into another were an offence, ])un- 
 ishable by indictment, could an indictment, couclied in 
 the terms used in this declaration, be sustained for a mo- 
 ment? These questions, it seems to me, admit of but 
 one answer. No proposition is clearer, to my mind, than 
 that whatever else this declaration may assert, it con- 
 tains no averment of an escape from the state of Ken- 
 tucky into the state of Ohio. 
 
 9 
 (1) It seems idle to cite further authorities, but McKeon v. Lane, 1 Hall, JV. 1',- 
 318, and Bigelow v, Johnson, IfiJohn. 438, are rases in point. 
 
 D 
 
26 DEFECTIVE TITLE NOT AIDED BY VERDICT. 
 
 It is urged in the printed firgiiment for the plaintiff, 
 that, after verdict, it will be presumed that the facts ne- 
 cessary to obtain it, although not specifically alleged, 
 were proved, and the declaration will be sustained. — 
 But there is no such rule as this, and none such can ever 
 be established. An omission to state facts, which are 
 implied in,, or inferrible from^ the facts averred and 
 found, will be aided l)y the verdict: because the verdict 
 establishes the truth of the facts averred, and the truth 
 of the facts not averred is a necessary inference from 
 the truth of the facts found. But proof of facts, not ne- 
 cessarily implied by the facts stated, will not be pre- 
 sumed. The rule is laid down with precision, by Buller, 
 J., in Speirs v. Parker:^ ''After verdict nothing is to be 
 presumed but what is expressly stated in the declaration, 
 or what is necessarily imphed from the facts which are 
 stated." The question in Speirs v. Parker, hke that now 
 under consideration, arose after verdict in an action of 
 debt for penalties. The ground of the motion in arrest 
 was, that the declaration did not sufficiently negative 
 an exception in the act giving the penalty. The opin- 
 ion of the whole court was, that the plaintiff, having in- 
 sufficiently negatived the exception, had failed to aver 
 a title to the penalty, and judgment was arrested. The 
 same rule has been frequently applied in other cases," 
 and is very ably stated and illustrated by Mr. Gould, in 
 his work on Pleading.^ And this Court has also recog- 
 
 (1) 1 T.B. 146. 
 
 (2) Rvshion v. Aspinnll, 2 Dong. 683; Bnrtlett v. Crozier, 17 .7. R. 453; Wil- 
 liams \. Hingham. 4 Pick 344, which contains a very clear and able statement and 
 applicaMon of the rule; Bishop v. Hayiuard, A T.R.AIX. In the last case. Lord 
 Kenyon says: " It is an invariable rule that every plaintiff must, on his own stating 
 of the case, show sufficient to entitle him to recover judgment against the de- 
 fendant." • 
 
 (3) Gould on Pleading, 503. 
 
DEFECTIVE TITLE NOT AIDED BY VERDICT. 27 
 
 nized the rule, and applied it to a case of a defective 
 plea. "Defects in substance are not cured by verdict, 
 'for this,' says Bacon, 'would have ruined all proceed- 
 ings in courts of justice,' and a defect in substance, 
 in a plea or verdict, is conceded in all the books to exist 
 when they do not cover whatever is essential to the gist 
 of the action."^ 
 
 In the case before the Court the declaration avers 
 certain facts. The issue is not guilty. Of what? — 
 Doubtless, of the facts charged. The issue cannot be 
 broader than the charge, and if no offence be charged, 
 there can be no penalty. The verdict is '•''guilty.'''' Of 
 what? Of harboring and concealing certain persons 
 alleged to have been held to service by the laws of Ken- 
 tucky, who, without consent, departed from the service 
 of the plaintiff of Boone County, and, afterwards, came 
 to the defendant in Ohio. These facts, I have already 
 shown, do not make the case of escape defined by the 
 constitution and the act of Congress: for they may all 
 be true and yet no escape have taken place from one 
 state into another. Nor can the necessary averment 
 be supplied by intendment. This would not be al- 
 lowed in an ordinary action, much less in an action for 
 a penalty. With great deference, then, I submit that 
 the position that the first count of the declaration in 
 respect to the averment of escape is fatally defective, 
 is fully established. 
 
 The second count is equally defective in the same par- 
 ticular. The allegation of escape is exactly the same 
 in both counts, except that in the second instead of aver- 
 ing, as in the first count, that the servant "went away 
 from the service of the plaintiff of said Boone County," 
 
 (1) Garland v. Davis, 4 HoWy 1S5.. 
 
28 NO PROPER AVERMENT OF NOTICE. 
 
 the pleader states that the servant " went away from the 
 plaintiff's service, to wit, at Boone County aforesaid." 
 The allegation is of escape from the plaintiff's service, 
 and his residence is laid under a videlicet, so that if the 
 proof should sliow that he resided in some other county, 
 there would he no variance. There is no allegation of es- 
 cape from the state. And, I repeat, that a declaration 
 upon a penal statute must describe, with strict certainty, 
 sufficient facts to constitute the offence;^ and of these 
 facts, in this case, an escape from the state of Kentucky 
 into the state of Ohio, is one that cannot be dispensed 
 with. 
 
 I submit, further, that the first count in the declara- 
 tion contains no sufficient averment of notice to the de- 
 fendant, 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 
 w^as the slave of the plaintiff, and a fugitive from labor, 
 afterwards * *' did, knowingly and willingly, harbor, 
 detain, conceal and keep the said slave." The act of 
 Congress provides that "any person who shall knowinghj 
 and wUlingly * * * harbor or conceal such person, after 
 notice that he or she was a fugitive from labor as afore- 
 said, shall, * * forfeit and pay the sum of five hundred 
 dollars." 
 
 The question is, does the declaration aver that the 
 defendant " after notice " that the servant "was a fugitive 
 from labor as aforesaid,^' harbored or concealed him ? 
 
 (1) Fairbanks v. Antrim, 2 JV. H. 105. Mr. Justice Woodbury, in this case, held 
 " the strictest certainty." The Court seems to have been disposed to relax the rule 
 as to the construction of statutes, but upheld it fully as to declarations for penalties. 
 
KNOWLEDGE OR BELIEF NOT NOTICE. 29 
 
 That no such averment is made in terms is certain ; 
 but if the declaration makes the averment in words of the 
 same import, it will be sufficient. Are the terms of the 
 declaration of the same import as the words of the 
 law? 
 
 1. Is knowledge, or belief, notice ? 
 
 2. Is notice that the person harbored is 'a slave, and 
 a fugitive from labor,' equivalent to notice that he was 
 held to labor under the laws of a state, and has es- 
 caped from that state into the state where he is harbored? 
 
 The learned judge who presided at the trial of this 
 case, in the Circuit Court, expressed the opinion, in the 
 case for damages between the same parties, 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." Whatever may be 
 said as to the correctness of this opinion, as apphed to 
 an action for damages — and I cannot but think that the 
 error of it even when so applied, will be apparent upon 
 reconsideration — can there be a doubt that, in an action 
 for the penalty, a very different notice from that which 
 will affect a purchaser, must be averred and proved? 
 The learned judge cites, in support of his view, the 
 language of Mr. Justice Story, in a case reported by 
 Gallison. "It is a general rule, that whatever is suffi- 
 cient to put the parties upon inquiry is good notice ;" * * 
 and "notice of the facts" is "notice of the legal con- 
 sequences flowing from the facts."^ Judge Story 
 referred to the notice necessary to charge a purchaser 
 with knowledge of prior rights, and, in that case, a sale 
 was set aside in favor of a party having a prior right, be- 
 en Brig Ploughboy, I Gall. 42. 
 
30 KNOWLEDGE OR BELIEF NOT NOTICE. 
 
 cause the circumstances were such as would put a pru- 
 dent man upon enquiry. But to apply such a rule in 
 the construction of a penal statute, and to say that 
 whatever is sufficient to put a party upon enquiry is such 
 notice as the act requires, in order to charge him with 
 a penalty, seems to me wholly unreasonable and inde- 
 fensible. 
 
 The act of Congress plainly contemplates a very 
 different kind of notice. In fact, the words "after 
 notice" are wholly superfluous, upon the hypothesis that 
 notice is knowledge. The act provides that if any 
 person shall knowingly and willingly harbor or conceal 
 such person, after notice^ &c. Erase the words "after 
 notice," and is not knowledge still essential to the 
 offence of harboring? Must not the claimant of the 
 penalty, before he can entitle himself to a recovery, aver 
 and prove that the harborer knew that the person 
 harbored was a fugitive from labor, who had been held 
 to service in one state under its laws, and had escaped 
 into another? The words '•^knowingly and willingly'''* 
 quahfy the words '•'- harbor or conceal,'''' as much as they 
 do the words '-'obstruct or hinder,''"' or the word ''•rescue;''^ 
 and the words ''such person" mean such a fugitive 
 servant as is described in the preceding section of the 
 act. I think there can be no doubt as to this. If then 
 the act had never contained the words "after notice," 
 &c.,the averment of knowledge would, nevertheless, have 
 been necessary. Let it be supposed that the act did 
 not originally contain these words, and that they were 
 subsequently introduced by amendment, can it be 
 maintained that the introduction of them would have 
 had no effect upon the construction of the act? If, 
 then, these words are not merely tautological, they must 
 mean something different from knowledge. 
 
KNOWLEDGE OR BELIEF NOT NOTICE. 31 
 
 But it may be argued that the words "knowingly and 
 wilhngly" do not quahfy the words ''harbor or conceal." 
 Let this be granted for the sake of the argument. These 
 words, however, do qualify the terms "obstruct or hin- 
 der." Whatever else may be controverted, this cannot be. 
 Why, then, are the words "after notice" used to (quality 
 the act of harboring, while the words "knowingly and 
 willingly are employed to qualify the act of obstruction? 
 The difference in language marks the difference of 
 sense. The Legislature did not intend that mere receiv- 
 ing or sheltering a fugitive servant, should subject the 
 citizen to a penalty, without actual notice from the 
 claimant, or some one acting for him, that the person 
 so received, was such a fugitive as is described in the 
 constitution and the law. Such, certainly is the plain 
 obvious meaning of the language used; and I cannot 
 think that this court, in order to bring a case within the 
 provisions of a penal statute, will apply to the statute 
 the enlarged rules, as to notice, which prevail in courts 
 of equity. 
 
 Nor can I be persuaded that the Legislature intended 
 words " after notice," as the mere equivalent of " know- 
 ing." The whole object of the statute is to provideybr the 
 enforcement of claims^ to the persons of fugitive servants. 
 It supposes, first, the case of an escape, and defines it 
 with rigorous precision. It then brings forward the claim- 
 ant ; authorizes the seisure ; and provides for the enforce- 
 ment of the claim. It next provides penalties against 
 those who do certain acts in prejudice of the claim so 
 made. Throughout, it supposes a claim, and a claimant 
 or his agent, prosecuting it. When the claimant is at 
 hand, seizing or endeav^oring to seize the fugitive, know- 
 ingly and willingly obstructing or hindering the arrest, or 
 rescuing the servant, after the requisite notice, will subject 
 
32 KNOWLEDGE OR BELIEF NOT NOTICE. 
 
 the obstructors or rescuers to the penaky. But harboring 
 or conceahiient is a distinct offence. It is supposed to be 
 committed always under circumstances, which do not 
 amount to obstruction or hindrance. It cannot be com- 
 mitted, unless there be a fugitive; nor, unless there 
 be a claimant. Tiiere 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. He 
 does not commit the offence intended by the act, 
 who receives into his house, and employs in his ser- 
 vice a fugitive servant, whom his master does not re- 
 claim, and has no thought of reclaiming; although, he 
 may know the man to be an escaping servant, within the 
 description of the law. Harboring or concealment only 
 becomes unlawful, after notice, — whether by writing or 
 verbally, or by newspaper publication, or in any similar 
 mode, it matters not — and this notice must be information 
 communicated, in some way, by the claimant or some 
 one for him, to the party to be charged. After such notice 
 the harboring will become unlawful, though the claim- 
 ant may not be in immediate pursuit of the servant. 
 
 The act, it seems to me, contemplates a claim and a 
 claimant, throughout; and to provide in the fourth section 
 for three distinct classes of injuries, under three distinct 
 sets of circumstances. 
 
 1. Where the claimant in person, or by his agent, is 
 in pursuit of a fugitive servant, answering the descrip- 
 tion in the act, and any person, knowingly and willingly, 
 whether by harboring, concealment, resistance or other- 
 wise, undertakes to prevent the arrest, after the notice 
 required by the act ; this is obstruction or hindrance. 
 
 2. Where the claimant has arrested such servant and 
 any person, knowingly and willingly, and with force, sets 
 him at libertv, after such notice: this is rescue. 
 
KNOWLEDGE OK BELIEF NOT NOTICE. 33 
 
 3. When any person, having received or not having 
 received such a servant into his employment, or having 
 given or not having given him sheker and entertainment, 
 knowingly and willingly, fraudulently conceals him, 
 after such notice: this is harboring or concealment. 
 
 In each case the act must be knowingly and willingly 
 done, and it must be done also after notice. In the case 
 of obstruction or hindrance, and in the case of rescue, 
 notice is easily given, for the claimant or his agent is on 
 the spot. In the case of harboring or concealment, the 
 claimant or his agent may or may not be in pursuit; but 
 the offence cannot be complete until after notice. 
 
 It may be said that the words "after notice" have no 
 connection with "obstruct or hinder" or with "rescue." 
 I think the true construction of the act is otherwise ; but 
 I am willing to accept the construction suggested. It 
 makes the defendant's case still stronger. It asserts, in 
 fact, that while knowledge and purpose are sufficient to 
 constitute the first two offences, notice, as distinguished 
 from knowledge, is essential to complete the third. 
 
 I have defined harboring as fraudulent concealment, 
 because this seems to me the probable sense in which 
 the Legislature used the word. To me the words "har- 
 bor or conceal" seem to be used in the act as equivalent 
 terms, descriptive of the same offence: just as the words 
 "obstruct or hinder," "seize or arrest," "agent or attor- 
 ney" are used, not to convey different ideas, but make 
 the meaning of the legislature more distinct. 
 
 And the definition of harboring as given in the books 
 sanctions mine. The Supreme Court of North Carolina 
 has declared harboring to be "fraudulent concealment."^ 
 Under the statute of that state, employing or maintain- 
 
 (1) Dark v. Marsh, 2 JV*. C. Law Rep. 249. 
 E 
 
34 KNOWLEDGE OR BELIEF NOT NOTICE. 
 
 ing openly is not harboring. And Mr. Bouvier in his 
 Law Dictionary. — I do not find the word in Cowel, or 
 Jacob, or Tomhns, — says: "To harbor is to receive, 
 clandestinely and without lawful authority, a person, for 
 the purpose of concealing him so that another, having 
 the right to the lawful custody of such person, shall be 
 deprived of the same."^ 
 
 But it is unimportant to this argument whether harbor- 
 ing and concealment be considered as the same offence, 
 or as two distinct offences. It is equally unimportant 
 whether the harboring be fraudulent concealment, or 
 simple sheltering, entertaining or lodging. 
 
 In whatever sense the word be taken, actual notice is 
 equally essential; and it must be the precise notice 
 which the statute requires. Before, or during the har- 
 boring or concealment, the party to be charged under 
 the act must be notified by the claimant, or some one 
 acting for him, that the person claimed is a fugitive 
 within its description. The offence of harboring, how- 
 ever defined, — and with this offence alone am I, in this 
 argument, concerned, — cannot be complete until after 
 notice. 
 
 Even at common law, according to the latest authority, 
 no action will lie for harboring the servant of another, 
 until after notice, that he is such servant, accompanied 
 by a demand for restoration, or at least, some assertion 
 of the prior right. Mr. Chitty states the law thus: "In 
 case an apprentice or servant, or a mere journeyman 
 hired for an unexpired term, or to complete some unfin- 
 ished work, absents himself, then, to fix any third person 
 with liability to an action for continuing to harbor him, 
 
 (1) 1 Bouvier, 460. 
 
KNOWLEDGE OR BELIEF NOT NOTICE. 35 
 
 he must receive a general or particular notice of the 
 circumstances. For although, if he took, or enticed the 
 party away, he would be immediately liable to an action 
 without previous notice ; yet a notice must precede any 
 suit, for merely detaining or harboring."^ The same 
 author, in another part of his work, speaking of the har- 
 boring of an apprentice or servant, says: "it will be 
 necessary to be prepared to prove a formal demand of 
 restoration before an action can be sustained, and that 
 it has been so made as to constitute the party a wilful 
 wrong doer, unless the ])laititiff can prove an original 
 enticing away."^ Mr. Starkie, also lays down, the same 
 rule.^ I am aware that these rules have not always 
 been applied to actions at common law, but I submit 
 that they are entirely reasonable and just and fit, espe- 
 cially in a country like ours, to be so applied in all cases. 
 The law should never presume against liberty. It should 
 never presume an intention on the part of the master to 
 pursue and reclaim an escaping servant. It should never 
 presume an act of humanity or charity to be an offence. 
 But, however this may be at common law, can there 
 be a reasonable doubt, that such must be the rule, under 
 the act of 1793? That act is not only in derogation of 
 the common law, but it is, also, intended to enable the 
 claimant to enforce a right created by the law of his 
 state, extra-territorially, in states, where that right can- 
 not exist, except as an abridgement of their sover- 
 eignty and fundamental law, and in virtue of the constitu- 
 tion and the act. There is, therefore, far more reason for 
 requiring notice, from the claimant to the party to be 
 charged, under this act, than in a case at common law; 
 and it seems to me, that the reasons I have adduced, es- 
 
 (1) 1 Chitty's Gen. Prar. 449, (2) Td. 465, (3) 3 Starkie on Ev. 1310. 
 
36 KNOWLEDGE OR BELIEF NOT NOTICE. 
 
 tablish, beyond reasonable question, that it was the 
 intention of the Legislature to require such notice. 
 
 It is pertinent to add, that in many cases, the masters 
 of servants, and especially of slaves, never set up any 
 claim to them, if they escape. Every one, at all ac- 
 quainted in the slave states, knows such masters. It 
 will be hardly contended, that receiving, employing, 
 sheltering or entertaining escaping servants, not pursued 
 and not claimed, is a penal offence ; and the fact that 
 there are many such cases of escape, strongly confirms 
 the view I have submitted, as to the sense in which the 
 words '-after notice" are used in the act. 
 
 It may be said, that, upon this construction of the 
 act, the right of masters to reclaim their escaping ser- 
 vants may be invaded by acts, which will not subject the 
 doers of them to any penalty. This may be admitted: 
 but the terms of tlie act must not be extended, and pen- 
 alties multipUed, by construction. For all injuries, not de- 
 fined by the act, parties must be left to the redress afibrded 
 by the common lav/. Thus Judge Washington held, that 
 interference and opposhion, however vexatious and har- 
 rassing, after seizure and while the servant was in custody, 
 was not obstruction or hindrance, and that mere enticing 
 ur persuading the servant, after seizure, to escape was not 
 a rescue, within the terms of the law. The party injur- 
 ed by such acts, must resort to his action for damages: 
 he could not claim the statute penalties. So the Su- 
 preme Court of Alabama held, that enticing a slave to 
 escape was not stealing the slave. All these acts work 
 the same injury to the legal rights of the master as the 
 acts prohibited under penalties: but they are not the 
 same acts, and, therefore, the doers of them do not incur 
 the penalties. Let the principles, illustrated by these ex- 
 
KNOWLEDGE OR BELIEF NOT NOTICE. 37 
 
 amples, be applied to the case before the Coiiit, and can 
 there be a reasonable doubt, that the words "after no- 
 tice," used in the law, refer to a state of facts which is 
 not described by the words "well knowing," as used in 
 the declaration. 
 
 I do not insist that the notice shall be written: but I 
 do insist that notice must be given — and given by the 
 claimant, or some one acting, for him. Notice to an en- 
 dorser of demand and non-payment need not be in wri- 
 ting: but notice must be given by the holder, or some one 
 for him. Knowledge of demand and non-payment is not 
 enough; there must be notice from the party who asserts 
 the right. And this example seems to me to furnish a 
 clear illustration of the principle. In both cases the ob- 
 ject is to fix a legal liability, which would not exist 
 without the notice. The only difference is, that the ha- 
 bility in the one case is for a penalty, and in the other 
 for a debt. 
 
 I close this part of the argument with a single ques- 
 tion ; — Is there one case, in any book, in which a requisi- 
 tion of notice to charge a party with liability for a pen- 
 alty, or even for a money demand of any kind, has been 
 held to be satisfied by proof that the defendant knew the 
 facts, of which he was to be notified?-^ 
 
 (1) I ask attention to ihe following passages, which I extract from an essay, drawn 
 up after the trial iu the Circuit Court, by an able and learned lawyer, in no way con- 
 nected with the case, and having no sympathy with the views of abolitionists. 
 
 •' That the words knowledge and notice are synonymous in law, no tyro will pre- 
 tend. Lawyers are too familiar with notices, ever to suppose that notice means 
 knowledge. Putting a deed on record is notice to all the world, though not one in a 
 million knows the fact. As notice then does not mean knowledge, neither does 
 knowledge mean notice: a man may know a thousand things of which he has had no 
 notice. 1 say, then, that no man, who speaks or writes the English language with 
 any degree of accuracy, ever uses the words knowledge and notice as synonymous. 
 ]No example can be found in anj' of our classical writers where they have been so 
 used; and there is no ground for supposing that Congress meant to use the word no- 
 
38 OF WHAT THE PARTY MUST BE NOTIFIED. 
 
 Tlie next and only remaining question as to notice is, 
 Of what does the statute require the party to be notified? 
 And, as to this, I apprehend there can be but httle doubt. 
 The terms of tiie act are so clear that misapprehension 
 is almost impossible. The language is this: "Any per- 
 son who shall * * harbor or conceal such persoti after 
 notice that he or she was a fugitive from labor as afore- 
 said^ shall forfeit," kc. The words "as aforesaid," refer, 
 beyond question, to the description, in the preceding sec- 
 tion, of escaping servants, subject to reclamation. That 
 description is clear and precise. The words are these: 
 "A person held to labor in any of the United States un- 
 der the laws thereof, who shall escape into any other of 
 said States." The fourth section, then, must be con- 
 strued as if it read thus: "Any person who shall * * * 
 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," &c. I think there cannot 
 be any doubt of this. 
 
 The simple question then is. Does the declaration aver 
 that the defendant had notice that the person harbored 
 was held to service in one state, under its laws, and had 
 
 tice as synonymous with knowledge. On the contrary, there is strong reason to 
 believe that Congress meant to use the word notice in its ordinary acceptation — 
 meant, that before a person could be subjected to the penalties of this act, he should 
 have notice given him in the ordinary mode that the person was a fugitive from labor, 
 and that his master intended to reclaim him. * » , * 
 
 It is a notorious fact, that there are a great many masters who will not move a fin- 
 ger to reclaim a runawaj- slave. They will not cmply with the requisitions of the 
 statute by giving notice, even though they know that they can recover their slaves 
 by doing so. * * There are at this moment, more than ten thousand slaves in the 
 state of Kentucky, to whom, if thev were to runaway, their masters would bid God- 
 speed, and never lift a finger to reclaim them. They cannot let them go, for that 
 would be contrary to the laws of their state. They cannot, with a clear conscience 
 manumit them, because they are incapable of taking care of themselves. But if 
 they go, they will feel themselves relieved from a heavy burthen." — 2 West. Law 
 Jour. 247. 
 
OBJECT OF THE CONSTITUTION AND LAW. 39 
 
 escaped into another? Or, is there any averment in the 
 declaration of the same import? The actual averment 
 has been already stated. It is that the defendant well 
 knew "that Andrew was the slave of the plaintiff and 
 a fugitive from labor." Does it need argument to show 
 that this averment is insufficient? 
 
 The language of the act of Congress is adopted from 
 the Ck)nstitution. Every word of the clause in the Con- 
 stitution was carefully weighed, and deliberately chosen, 
 to define, with rigorous precision, the exact limits of the 
 exception to the universal rule of freedom, which the 
 framers of that instrument consented to introduce into 
 it. The object of the clause was to secure, to a certain 
 extent, the legal rights of slaveholders, by hmiting the 
 operation of the principles of liberty, which pervaded 
 the constitutions and laws of many states, in a certain 
 specified class of cases. To avoid all recognition of 
 the rightfulness of slaveholding, the provision was made 
 applicable to all servants held under state laws. To 
 prevent all possibihty that, under its sanction, slave- 
 holders might introduce their slaves into the states 
 which did not tolerate slaveholding, it was confined 
 expressly to servants escaping from the state in which 
 they were held, into another state. And to preclude, as 
 far as possible, all interference with the principles and 
 institutions of the several states, the prohibition of dis- 
 charge from labor and service w^as hmited to '•"such labor 
 and service" — that is, to that labor and service, to 
 which the servant was held by the laws of the state, 
 from which he escaped. The clause w^as felt to be a 
 great concession on the part of the fiee states ; although 
 it was not one of the disputed clauses, nor did it originate 
 in any of the compromises of the convention. It was. 
 
40 PROCEEDINGS OF CONSTITUTIONAL CONVENTION. 
 
 not contained in the articles of the Constitution as drawn 
 up by the Committee on Detail. It was not even sug- 
 gested, until late in the session of the Convention, when 
 a clause to the effect that "fugitive slaves and servants," 
 should be "delivered up like criminals," was proposed 
 by the delegates from South Carolina.^ This, however, met 
 with no favor, and was witlidrawn. 
 
 Subsequently a clause, nearly the same as that which 
 now stands in the constitution, was proposed, and re- 
 ceived the unanimous assent of the convention. At a 
 still later period, the clause underwent further mod- 
 ifications; the great object of which was to exclude 
 from the Constitution the idea of a sanction to slave- 
 holding, and to make the provision express the pre- 
 cise sense of the convention as to the matter of esca- 
 ping servants.^ 
 
 (1) 3 Mad. Papers, 1447. 
 
 (2) The clause as orig-inall}' agreed to was as as follows: "If any person bound to 
 service or labor in any of the United States, shall escape to another state, he or she 
 shall not be discharged from such service or labor, in consequence of any regulations 
 subsisting in the state to which they escape, but shall be delivered up to the person 
 justly claiming their service or labor. 3 Mad. Pap. 1456. 
 
 This clause, with all others then agreed on, were referred to a committee, 3 Mad. 
 Pap. 1532, who reported a draft of the Constitution, which contained the clause niod- 
 fied as follows: 
 
 " No person legally held to service in one state escaping into another, shall, in 
 consequence of regulations subsisting therein 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." 3 Mad. Pap. 1558. 
 
 Afterwards, Mr. Madison says, " On motion of Mr. Randolph, the word ' servi- 
 tude 'was stricken out, and the word 'service' unanimously inserted, the former 
 being thought to express the condition of slaves, and the latter the obligation of 
 free persons." 3 Mad. Pap. 1569. 
 
 From this it seems that, in the clause as proposed by Mr. Butler, and as reported, 
 after modification, by the committee, the word " servitude" was originally employed 
 and not "service." The reason assigned for the after change, on motion of Mr. 
 Randolph, suggests much for reflection. 
 
 Subsequently, Mr. Madison states, " the term ' legally ' was struck out; and the 
 words ' under the laws thereof inserted after the word 'state,' in compliance with 
 the wish of some who thought the term ' legal ' equivocal, and favoring the idea that 
 slaverv was legal in a moral point of view." 3 Mad. Pap. 1589. 
 
OF WHAT THE PARTY MUST BE NOTFFIED. 41 
 
 The clause is confined to persons iield to service in 
 one state, under its laws, and escaping into another. 
 The law is confined to thfc same class of persons. The 
 notice, required by the law is, that the person harbored 
 is a person of this precise class. To harbor a person, 
 knowing that he is a slave and fugitive from labor, is no 
 offence against the law of Congress. The person har- 
 bored may be a slave in the state where he is harbored, 
 and a fugitive from labor, in that state, and then he cer- 
 tainly does not come within the terms of the act ; or he 
 may have been a slave in another state, and a fugitive 
 from labor, and yet it by no means follows that he was 
 held to service under the laws of that state, and has es- 
 caped into another. 
 
 I pass over the objection that, in a free state, or in a 
 case arising under the Constitution of the United States, 
 the word slave has no legal meaning ; and that it was im- 
 possible that Andrew, in Ohio, could be the slave of the 
 plaintifi". These considerations are of little moment here, 
 and I am willing to take the word slave in the sense in 
 which it is obviously used as the synonym of servant. 
 The difficulty of the plaintiff is, not in having used an im- 
 proper word to describe the condition of the fugitive, but 
 in this, — that the notice to the defendant, required by 
 the statute, and made absolutely essential to the oftence 
 of harboring, is not alleged. For aught that appears, the 
 notice may have been, that Andrew was the plaintiff's 
 slave in some foreign state, and a fugitive from labor. 
 The pleader has utterly failed to allege notice to the de- 
 fendant, of the facts of which the statute says he must 
 have notice, and consequently, has failed utterly to 
 allege any title to the penalty he claims. I am wholly 
 unable to see how this objection arising from the omissioi:^ 
 to aver notice can be met and overcome. 
 
 F 
 
42 NO STATEMENT OF FACTS OF OFFENCE. 
 
 Tlie Supreme Court of New Hampshire has gone as 
 far as any court, in relaxing the rule of strict construc- 
 tion, as to penal statutes; and yet that court held a de- 
 claration bad on error, which described the offence with 
 far more certainty than is to be found in this.^ 
 
 The objection whic'n has just been considered, applies 
 as strongly to the second count as to the first. But the 
 second count attempts to avoid one error of the first, by 
 substituting the words " had notice " instead of the 
 words '"well knowing." But the notice, alleged in the 
 second, is the same as the knowledge averred in the first, 
 namely: that "the said Andrew was the slave of the 
 plaintiff, and a fugitive from labor." 
 
 I pass to another objection to the declaration. I sub- 
 mit that it is essential, that a declaration claiming the 
 penalty imposed by the law, for harboring fugitive ser- 
 vants must set forth theyac/s which constitute the offence. 
 
 Mr. Chitty lays down the rule as applicable to crim- 
 inal cases, thus: "the indictment must state the facts of 
 crime with as much certainty as the nature of the case 
 will admit."" And the same rule has been sanctioned by 
 the Supreme Court of Tennessee; "an indictment must 
 contain a definite description of the crime charged, and 
 a statement of the facts which consthute it, or judgment 
 will be arrested."^ The reason assigned for the decision 
 is, that the prisoner, if indicted a second time for the 
 same offence, may be able to show from the record, that 
 it is the same offence. Examples of the application of 
 the rule are frequent in the books. In one case,^ the de- 
 fendant was " convicted for procuring from one Mary 
 
 (1) Fairbnnk v. Antrim, 2 JV. H. Rep. 205; See also, Respnblica v. Tryer, 3 Yates, 
 458, as to the strictness with which the allegations of otl'ence must pursue the statute. 
 
 (2) Chitty's Crim. Law. 171. (3) Tennessee v. Fields, Martin Yerger^s Rep. 
 137. (4) Rex v. Murray, 2 Stra. 1127. 
 
NO STATEMENT OF FACTS OF OFFENCE. 43 
 
 Kinsford, by false tokens, a promissoiy note, under pre- 
 tence that he would brmg her money for it." And upon 
 a motion in arrest of judgment, it was held that the in- 
 dictment must specify the false tokens. So, an indict- 
 ment for obtaining money under false pretences must state 
 what these false pretences are.' In another case, where 
 a summary form of conviction was given by statute, in 
 which the offence was required to be stated, for any agree- 
 ment by journeymen manufacturers for controlling any 
 person carrying on any manufactory, it was held that a 
 conviction, alleging generally that the defendants were 
 concerned in entering into a certain agreement, for the 
 purpose of controlling A. B., without stating what the 
 agreement was, was bad." This case may also be re- 
 ferred to, with advantage, for instruction as to the neces- 
 sity of setting forth statutory oftences, where the facts 
 constituting it are not precisely stated, in the very words 
 of the statutes. 
 
 The rule laid down, in these cases, admits, indeed, of 
 exceptions. It has been decided, that in an indictment 
 for keeping a disorderly house, or for being a common 
 scold, or for endeavoring to seduce a soldier from duty, it 
 is unnecessary to allege the particular acts constituting 
 the offence. The reason assigned is, that each of these 
 offences consists of a number or series of acts whicli it 
 would be difficult, if not impossible, to set forth. The 
 reason of these excepted instances does not apply in 
 this case. The facts which constitute the offence of 
 harboring may be ascertained without difficulty. They 
 may be easily ^et forth. There is no reason, then, for 
 any encroachment, in this case, upon the great and salu- 
 
 (1) Rex V. Mason, 2 T. R. 581; Rex v. Prexfnn. 1 Camp. 495. t2) Rev v. 
 J^ield, 6 East. 417. 
 
44 NO STATEMENT OF FACTS OF OFFENCE. 
 
 tary rule, applicable not less to penal actions than to 
 criminal prosecutions, 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.-' 
 If this declaration be sustained, this great rule of justice 
 as to this defendant, must be broken down ; for it would 
 require more than human sagacity to divine, from the 
 words used in the plaintiff's declaration, of what the de- 
 fendant was accused, and what was intended to be given 
 in evidence against him. 
 
 What are the words? In the first count, that the de- 
 fendant * * '*did * * * * unlawfully receive the said 
 slave * * into his service, and knowingly and willing- 
 ly harbor, detain, conceal and keep the said slave." — 
 In the second count, that the defendant " did * * know- 
 ingly, willingly * * * and unlawfully conceal the said 
 slave from the plaintiff." In neither of these counts are 
 any facts constituting the offence of harboring set forth, 
 unless the allegation that the defendant received the 
 slave into his service, in the first count, be the setting 
 forth of such a fact. 
 
 , I submit that the averment in neither count is suff- 
 iciently precise and certain. The allegation in the 
 •second count especially, which merely a^'ers conceal- 
 ment, without stating any facts or circumstances con- 
 stituting the concealment, cannot, it seems to me, be 
 held to be a sufficient description of the offence. 
 
 The last enquiry which I shall submit to the court, 
 in reference to the declaration, is this : Does it contain 
 a sufficient averment, that the act of the defendant, in 
 
 (!) Bartlett vs. Crazier, 17 Johns. 458; TVillinms vs. Hinghnm, 4 Pick. 366; 
 Loper 1)8. Harvard College, 1 Pick 17P. 
 
NO AVERMENT, CONTRA FORMAM STATUTI. 45 
 
 harboring the fugitive servant, was contrary to the form 
 of the statute ? It will hardly be denied, at this day, 
 that such an allegation is indispensable, in an action for 
 a statute-penalty. The authorities are too numerous 
 and too uniform to admit of a doubt. The courts, of 
 later years, have said that if the question were one of 
 first impression, the propriety of holding the plaintiff so 
 rigorously to the precise averment might be doubtful : but 
 the rule is regarded as too firmly established by author- 
 ity to be shaken, except by legislation. And it is not 
 sufficient if the declaration, omitting the averment that 
 the act complained of was contrary to the form of the 
 statute, conclude with the allegation, 'whereby, and 
 by force of the statute, an action has accrued,' an 
 allegation, by the way, wholly omitted in the decla- 
 ration under examination. Nor is it sufficient that the 
 plaintiff refer to the statute generally as the ground of 
 his action. The allegation must be that the act com- 
 plained of was contrary to the statute.^ Is this allega- 
 tion contained in the declaration before the cpurt ? 
 There is an allegation that the defendant did certain 
 acts, " in consequence of which the plaintiff lost said 
 slave and was deptived of his services and of all benefits 
 * * * vvhich would have accrued * * * ff-om such 
 slave and his services, contrary to the statute^'''' &c. The 
 loss of the fugitive servant and the resulting injuries are 
 facts wholly immaterial. If no such loss or injury were 
 
 (1) Lee V. Clarke, 2 East. 333: Sears v. United States, per Story J. 1 Gall. 
 259: Smith v. United States, per Story, J. 1 Gall. 265: Renick v. United 
 States, per Story, J. 1 Gall. 271: Mills v. Kennedy, 1 Bailey, S. C. Rep. 
 17; Barter v. Martin, 5 Green, Id: where the Court says (urther, p. 80, " in a 
 penal action, an essential feature ought to be directly averred instead of being left to 
 be gathered by argument and inference: Smithv. Moore, 6 Green. 276: J\fichols 
 V. Squire, 5 Pick. 169: Haskell v. Moody, 9 Pick. 162. 
 
46 NO AVERMENT CONTRA FORMAM : HARBORING, WHAT. 
 
 he consequence of defendant's acts, he would still be 
 liable, under the act relating to fugitives from service, for 
 the offences prohibited by it, if projierly alleged and 
 proved. And yet these immaterial matters only are 
 alleged to be ' contrary to the statute.' It may be said 
 that this is a technical objection. I answer in the lan- 
 guage of Mr. Justice Story: "As this is a penal action, 
 if it be well founded in law, the plaintiff' ought to have 
 the full benefit of it."^ It may be said, also, that the 
 allegation ' contrary to the statute,' may refer to the acts 
 of the defendant. I answer that upon a fair and correct 
 construction, the words refer to the allegation that the 
 plaintiff' was deprived of the slave and his services, and 
 not to the act of harboring: and, in this action, the de- 
 fendant is entitled to tlie benefit, even, of a strict and 
 literal interpretation." 
 
 1 now come to the question. What is harboring or 
 cealing? 
 
 I have already observed that these two words were 
 probably used in the act as equivalents: just as the 
 words 'obstruct or hinder' are used to describe the same 
 offence. Whether they are or not, however, is a mat- 
 ter of no importance to this argument. No question 
 arose upon the trial as to the concealment of Andrew. 
 The only connection between him and the defendant 
 was, that, by the defendant's permission or direction, he 
 drove the wagon in which the other negroes were con- 
 veyed. He sat as driver, in open view, and was never 
 concealed at all. I shall not trouble the coiu-t. therefore, 
 with any observations as to the sense in which the term 
 
 (1) 1 Gall. 265. (2) United States v. Mann, 1 Gall. 187, and cases cited 
 ante p. 16, 17, 18. 
 
HARBORING, WHAT. 47 
 
 'conceal' is used in the statute, but confine myself to an 
 inquiry as to the true import of the term^ harbor. The 
 definition of this word as given by Bouvier and sustained 
 by the Supreme Court of North Carolina, has been al- 
 ready stated. 
 
 If this legal definition shall not seem to the court 
 to be the true one, I invite attention to other authori- 
 ties which give the sense of the word in its ordinary 
 use. Johnson defines the verb, to harbor, thus: "To 
 entertain; to permit to lodge, rest, or reside; to shelter; 
 to receive; to secrete. Webster follows Johnson. His 
 definitions are: To entertain; to permit to reside; to 
 sheher; to secrete. He illustrates the use of the word, 
 in the sense of shelter or secrete, thus: 
 
 Harbour yourself for this night in this castle. 
 
 Richardson says that the word harbor comes from her 
 an army, and berg-en, beorg-an, byrg-an, to defend, to se- 
 cure, to fortify: hence, here-berga, a station where the ar- 
 my rests, and hereby rig-aii, to harbor, to abide, to lodge, 
 to quarter. "To harbor," he adds," "is generally, to 
 secrete or protect ; to receive or take under protection ; to 
 stay, remain, or abide in security ; to shelter, to lodge ; to af- 
 ford or grant shelter or lodging." Among the examples 
 given by Richardson, are these, which illustrate at once 
 the progress of the language and the meaning of the word 
 
 Holychurche, licrbergh to all that ben blessede. — Piers' Plouman, p. 124. 
 
 I was herbarwdcs and ye herboriden me. — Wiclifs Bible : Matt/Lew, c. 25. 
 
 I was herbourless and ye lodgid me. — Bible 1551; Matthew, c. 25. 
 
 Therefor he ledde them ynne and resseyuyde in herbore, and that nyght ther 
 dwelliden with him. — Wiclifs Bible; Dedis, or Acts, c. 10. 
 
 Temperance * * * 
 Obtaining harbour in a sovereign breast. — Drayton. 
 
 Your king, * * * 
 CTa.\es harbourage v/ithin your city walls. — Shakspeare: K. John; Act II, S. 1. 
 
48 HARBORING, WHAT. 
 
 For I was hungry and yee gave me meate, thirsty and yee gave me drinke, 
 naked, and yee doathed me; harbourksse and ye lodgid me.—HomUies, citing 
 Matthew, c. 25. 
 
 All these examples, and all others cited by Richard- 
 son, shew that harbor always conveys the idea of rest, 
 residence and shelter. It denotes always, whether used 
 in a common or figurative sense, a kind of domicil, 
 habitation, or abode, sometimes permanent but generally 
 temporary. The notion of harboring, I think I may 
 safely say, is never dissociated, inany correct use, from 
 the notion of dwelling. To harbor never means, to afford 
 facihties for flight. It never means, aid in the act of 
 fleeing. It cannot, without the greatest violence to 
 language, be made to signify 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. 
 
 There is appropriate language to describe such an 
 act. Men, speaking of it, would say, ''such a man 
 aided the escape of such a one's servant," or "he 
 helped a runaway off." No one would ever think of 
 saying '^he harbored the servant fifteen miles by letting 
 him drive the wagon." The word "harbor" in con- 
 nection wdth such a transaction is felt to be wholly m- 
 appropriate. Whoever may say that one man harbora 
 another, when he only takes him up in the road and 
 gives him a ride in order to help him escape, no matter 
 from what, cannot fail to be conscious that he uses 
 language in a strained and forced sense: that the term 
 used does not, with any fitness and accuracy, describe 
 
 the fact 
 
 If the claimant is in pursuit and, for the purpose of 
 preventing the arrest authorized by law, any person 
 
HARBORING, WHAT. 49 
 
 should cany the fugitive servant away in a wagon or 
 otherwise, so as to interpose an obstacle to the claim- 
 ant in seizing or arresting the fugitive, his act would, 
 doubtless, come within the rational and obvious signi- 
 fication of "obstruction or hindrance." And, even if 
 the claimant be not in pursuit, such a transportation 
 may, with far less force upon language, be denominated 
 "obstruction or hindrance in arresting," than "harboring 
 or concealment." The very object of the transportation 
 is, it is alleged, to prevent arrest: if so the object is to 
 "obstruct or hinder" the arrest: and the means used are 
 adapted to the end. The only circumstance wanting to 
 complete the offence is the presence of the claimant or 
 his agent attempting to seize or arrest. This circum- 
 stance undoubtedly is indispensable upon any proper 
 construction of a penal statute: but I repeat, less 
 violence is done to language, by holding the transporta- 
 tion' without this circumstance, to be *' hindrance or 
 obstruction in seizing or arresting," than by holding it to 
 be "harboring." And it is to be noticed that the 
 declaration before the court, contains a count for " ob- 
 struction and hindrance." It was abandoned because 
 the " obstruction or hindrance " could not be proved as 
 alleged. It was not interposed, as alleged, against the 
 plaintiff or his agent, but against two ruffians who were 
 in the act of committing felony under the laws of Ohio. 
 And the counsel for the plaintiff felt that it was not 
 sufficient to prove obstruction or hindrance generally, but 
 the precise obstruction or hindrance described in the 
 statute. They abandoned that count, therefore, and 
 endeavored to accommodate the proof to the count for 
 harboring or concealing. But, in attempting to avoid 
 one difficulty, they rushed upon another,, and, as it seems 
 
50 HARBORING, WHAT. 
 
 to me, a greater. They proved a case of transportation, 
 without conceahnent. for a short distance, with the 
 intent, — as I will admit for the sake of the argument, — of 
 aiding the escape of a fugitive slave. This case, thus 
 stated, — and it will not be pretended that the proof went 
 beyond this, — is a case of "obstruction or hindrance." 
 It wants only the circumstance of being obstruction or 
 hindrance of the claimant or his agent m arresting or 
 seizing, to make the case of obstructrdn or hindrance 
 made penal by the act. But it is not, in any just or 
 proper sense, a case of harboring. 
 
 Let it be supposed that an action was brought at 
 common law for harboring a servant of the plaintiff; and 
 the proof was, 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? Is there any 
 case, where any such proof as this has been held to 
 make out the allegation of harboring? I am sure there 
 is no such case; and I am confident that upon such proof 
 no plaintiff ought to recover, or could recover. 
 
 A single point in relation to the true import of the 
 word harboring remains to be examined. Is ^''any overt 
 act so marked in its character as to shew an intention 
 to elude the vigilance of the master or his agent, and 
 calculated to attain such a purpose, a harboring, within 
 the meaning of the statute?" 
 
 I cannot but think, that the learned judge who thus 
 defined the act of harboring, failed to mark the true na- 
 ture of that act with his usual precision, and that upon 
 mature reflection he will perceive that the definition is 
 inaccurate. 
 
HARBORING, WHAT. 51 
 
 If the true legal definition of harboring be fraudulent 
 concealment, then, doubtless, every act of harboring in- 
 cludes the intent to ekide the master's vigilance, and is 
 calculated, at least in the judgment of the harborer, to 
 attain that object. But every act, so intended and cal- 
 culated, does not amount to fraudulent concealment ; — far 
 from it. On the other hand, if it be held that receiving, 
 entertaining, and sheltering, without concealment, may 
 constitute harboring, then it is quite obvious that there 
 may be cases of harboring, where there is no intention 
 of eluding the vigilance of the master, and no adapta- 
 tion of means to that end ; and, also, cases where both 
 the intention and the adaptation exist, but which do not 
 answer any ordinary definition of harboring. If harbor- 
 ing be not fraudulent concealment, then entertainmg and 
 giving shelter to a fugitive, knowing him to be such and 
 after notice from the claimant, is harboring, although it 
 may be done openly and without any concealment, and 
 without the slightest intention to elude the vigilance of 
 any body. On the other hand, directing the fugitive to 
 a place of refuge ; guiding him, no matter how short a 
 distance, in his flight; lending him a horse to facilitate 
 his escape; and, above all, enticing him to fly, — are acts 
 intended and calculated to elude the vigilance of the 
 master : but, in what dictionary of the English lan- 
 guage is any definition of harboring to be found, which 
 will fairly include them? Advising a fugitive to fly, af- 
 ter seizure, w^as held by Judge Washington, not to be a 
 rescue, though of the same mischief; because, there can 
 be no rescue, in the true legal sense of that word, with- 
 out force. Shall it be said, that because it is an act 
 calculated and intended to elude the master's vigilance, 
 that it is harboring? Surely not. It may be held to 
 
52 ACT NOT TO RE AMENDED BY CONSTRUCTION. 
 
 be rescue, with far less violence to the natural sense of 
 language. There is no usage, and no authority, that I 
 have been able to discover, which warrants the use of 
 the word harboring in the sense, at once too broad and 
 too narrow^, assigned to it by the definition in the ques- 
 tion certified. No rule of construction, governing the in- 
 terpretation of penal statutes, or any other statutes, war- 
 rants such a definition. And I submit, w-ith great 
 deference, that it cannot be maintained, that Congress 
 used the word in the sense supposed, — as a sort of re- 
 siduary term, which should include in its comprehensive 
 inport, all possible injuries to the rights of masters, not 
 already made penal under. the denomination of obstruc- 
 tion, hindrance, or rescue. Such an intention will not 
 be ascribed to Congress without some evidence of it ; 
 and, I respectfully ask, where is the evidence of any 
 such intention? 
 
 If it be said that upon this construction of the stat- 
 utes, a master may, in many cases, be deprived of his 
 servants by acts which will not expose the doer of them 
 to the statute penalty : — I repeat the answer I have 
 already given : the statute must not be made broader 
 by construction. Words must not be forced out of their 
 usual sense and meaning. Language must not be ac- 
 commodated to a sense which it does not ordinarily 
 convey. Shall it be said that public security is a less 
 important end, than the right of a master to his servant? 
 That less strictness shall be required in the construction 
 of an act for the reclamation of fugitives from service, 
 than will be observed in construing acts to prevent mis- 
 demeanors or felonies? Shall it not be rather said, that 
 if the plaintiff does not bring his case strictly within the 
 
ACT NOT TO BE AMENDED BY CONSTRUCTION. 53 
 
 act, he cannot entitle himself to the penalty, but must 
 resort to such other remedies as the law may give; or, 
 if the law affords no other, that he must await amend- 
 ment by the Legislature. 
 
 The act doubtless is defective. It gives no penalty 
 for enticing to escape; none against obstruction or 
 hindrance after seizure, which does not amount to setting 
 the servant at liberty by force ; none against enticing to 
 fly after seizure ; none, as we claim, against transporta- 
 tion, without concealment, with or without intent to aid 
 an escape. It provides no process by which the fugitive 
 shall be brought before a judge or other magistrate for 
 the investigation of the claim; authorizes no commit- 
 ment to custody; provides no mode of removal except 
 by the mere force of the claimant. Mr. Justice Wash- 
 ington points out nearly all these omissions, and, 
 speaking of some of them, says that "an attempt has 
 been made in Congress to correct these glaring defects, 
 without which correction the act is found to be, practi- 
 cally, of little avail: but the attempt has not as yet 
 succeded."^ 
 
 Will this court, by construction, attempt to supply any 
 of these defects ? I trust and beHeve they will not. In 
 my humble judgment, no more fatal blow could be 
 
 (1) Worthington v. f^estun. 4 Wash. 461 .- see also. Hill v. Low, A Wash. 326, 
 and Ex parte, Simmons, 4 Wash. 396. 
 
 In Blackmore v. Phill, 7 Yerg. 463, it was claimed that a slave, taken from 
 Tennessee, where emancipation is prohibited unless by assent of the legislature or 
 the county court, to Illinois, for the purpose of being manumitted, and after 
 such manumission immediately brought back into Tennessee, did not gain his 
 freedom, the whole proceeding being in contravention of the policy of the state. 
 The Supreme Court of Tennessee, composed of Catron, C. Justice, and Peck and 
 Green, Associates, held, that though it might be contrary to state policy, yet there 
 was no enactment prohibiting it, and they could not supply the law. The language 
 of the court is very applicable here : " It is a casus omissus ; and the evil, if it be 
 one, is not remedied by any enactment. We cannot, for the purpose of preserving 
 our policy from violation, make the law. It is enough for us to administer such as 
 are made to our hands. '" 
 
54 ACT NOT TO BE AMENDED BY CONSTRUCTION. 
 
 inflicted upon the stability of our institutions, than by 
 such an assumption of the duties of the Legislature. 
 It is not to be disguised that multitudes, in all parts of 
 the country, regard the act of the defendant, admitting it 
 to have been done for the purpose of aiding the escape 
 of a fugitive slave, not merely as no crime, but as an act 
 of humanity and mercy. He did not seek to deprive the 
 plaintiff of his slave: he did not go into Kentucky to 
 cCxcite him to escape; he had nothing whatever to do 
 with his escape. But he was appealed to for aid by a 
 person who had already escaped, and he yielded to the 
 appeal, not to injure the master, but to benefit the slave. 
 Not even in any slave state, — certainly by very few 
 even of slaveholders, — will such an act be regarded as 
 morally wTong. The passages wdiich I have cited in 
 illustration of the true sense of the word "harbor," from 
 that Revealed Law, to which all other law must yield, 
 most impressively teach that the act of the defendant 
 was no crime. If then, that act shall be made an 
 -offence by construction, — if, not being within the terms of 
 the law^ taken in their natural and usual sense, it shall 
 be brought within them, by intendment, — the impression 
 on the public mind must be deep and painful. Far from 
 adding anything to the security of the master's legal 
 rights, it will involve the assertion of those rights in 
 perils and dififlculties never hitherto encountered. For it 
 will arouse that spirit of martyrdom, which in the inidst 
 of acts believed to be acts of justice and of duty, 
 regards, if not with indifference, yet with calm defiance, 
 the commands and the penalties of unjust law. 
 
 I here close my remarks upon the several points in 
 this case, which arise imder the act of Congress of 1793. 
 
ANSWERS TO QUESTIONS CERTIFED. 55 
 
 If J have been so fortunate as to satisfy the Court that 
 the several positions I have maintained, are sound in law, 
 the questions certified for decision, which arose upon the 
 construction of that act, before verdict, must be answer- 
 ed, substantially, thus: 
 
 1. The notice required by the act of 1793 to charge 
 a person with the penalty imposed by that act for har- 
 boring or concealing a fugitive from labor, need not be 
 in writing. 
 
 2. The notice required by the act must be given by 
 the claimant of tlie fugitive, or some one acting for him, 
 to the person to be held liable for the penalty, either in 
 writing, or verbally, or by publication brought home to 
 the party to be charged. 
 
 3. Clear proof of the knowledge or behef of the de- 
 fendant, that the person harbored was a slave and fugi- 
 tive from labor, is not sufficient to charge him with notice 
 under the act; for, 
 
 1. The terms " after notice," as used in the act, are not 
 tlie mere equivalent of " knowing," which is also used, 
 but their true import is, after information communicated 
 to the defendant with design to charge him, either by 
 the claimant, or some one acting for him.^ 
 
 2. Notice or knowledge that the person harbored was 
 a slave and fugitive from labor, is not notice or knowl- 
 edge, that such person was held to service under the 
 laws of one state and escaped into another. 
 
 (1) I have omitted to refer the Court to the enactments against harboring in the 
 several states. So far as I have examined them, I do not find that, in any one, is lan- 
 guage similar to that of the act of 1793 employed. The statutes of Missouri prohib- 
 it harboring any minor, apprentice, servant or slave, knowing; or having reason to be 
 lieve him to be such. Statutes of Missouri, 318. The statutes of Kentucky make it 
 a penal offence to conceal a runaway slave ''knowing" him to be such. 2 Statutes of 
 Kentucky, 318. The Statutes of Alabama prohibit "knowingly" harboring slaves un- 
 
56 ANSWERS TO QUESTIONS CERTIFIED. 
 
 I add that in Ohio, the testimony of negroes in a case 
 where a white man is a party, is not admissible in a 
 court of justice. Of course, evidence of their statements 
 made to the defendant as to their conduct, must, also, be 
 inadmissible ; and knowledge or belief, founded upon such 
 statements, cannot, in consistency with the rule exclu- 
 ding their own testimony, be held to charge the defendant, 
 
 4. Receiving a fugitive from labor, at three o'clock in 
 the morning, or at any other hour, at a place in Ohio 
 twelve miles from the place where he was held to labor 
 in Kentucky, and transporting him in a closely covered 
 wagon twelve or fourteen miles, so that the fugitive es- 
 capes pursuit, and his services are lost to his master, is 
 not a harboring, or, necessarily, a concealing of the fugi- 
 tive M^ithin the statute. 
 
 It is, certainly, not a case of harboring within any 
 ordinary use of that word. If conceahng be a distinct 
 offence under the statutes, and the court shall be of 
 opinion that to constitute that offence it is not necessary 
 that the fugitive should be harbored, that is, received, 
 sheltered, protected or entertained, at or in some certaidi 
 place, then transportation under the circumstances enu- 
 merated, may amount to the concealment prohibited by 
 the act, provided there be an intention to conceal. But 
 such transportation merely, without such intention, is not 
 concealment. The circumstance that, by the transpor- 
 tation, the fugitive escapes pursuit and his services are 
 
 der certain circumstances. Toulmin's Digest 628, 641 ; Revised Statutes of Arkan- 
 S04, 731. The statutes of other states, as that of Virginia for example, JTo/e's Di' 
 gest 494, prohibits secretly harboring; and even in actions upon these statutes ft is ne- 
 cessarj' to aver that the defendant knew the person harbored to be a person within the 
 prohibition of the law. Birney \. Ohio,8 Ohio Rep. 238. How can it be held then, 
 under the act of Congress, which adds to the requirement of knowledge, the addi- 
 tional requirement of notice, that this latter requirement means nothing, — is merely 
 superfluous. 
 
ANSWERS TO QUESTIONS CERTIFIED. 37 
 
 lost to his master are immaterial. They are not made, 
 under the act, of the slightest consequence to the ques- 
 tion, Concealment^ or, no concealment? 
 
 5. Any state of facts, which makes a case of harbor- 
 ing or concealment, if the fugitive escape, will make 
 such a case, though the fugitive may be recaptured. 
 
 6. Transportation of a fugitive in an open wagon 
 twelve or fifteen miles, is not a harboring or conceal- 
 ing of him within the statute. The loss of the services 
 of the fugitive is an immaterial circumstance. 
 
 7. A formal claim of the fugitive from the person 
 harboring or concealing him, need not precede or accom- 
 pany the notice. 
 
 If the notice be given, it is enough to apprize the 
 party that his acts are in prejudice of an asserted right: 
 indeed, the very object of the requirement of notice is 
 that the party to be charged may be apprized of the ex- 
 istence of the right and the intention of reclamation, 
 and of the facts essential to the existence of the right. 
 The notice, in shoit, amounts to a claim. 
 
 8. It is too broad to say that any overt act, so 
 marked in its character as to shew an intention to elude 
 the vigilance of the master and calculated to attain 
 such an object, is a harboring of the fugitive within the 
 act. Such an act may be an act of harboring; but is 
 not always and necessarily so ; and there may be har- 
 boring where there is no such overt act. 
 
 It will be observed, and it may be important to ob- 
 serve, that all these questions relate to the proof neces- 
 sary to establish a case of harboring or concealing 
 under the act. They are questions, not upon the dec- 
 laration, but upon the evidence, arising, not after verdict, 
 but before verdict. They are questions as to instructions 
 
 H 
 
58 ANSWERS TO Q,UK8TIONS CERTIFIED. 
 
 proper to be given to the jury, and, consequently, there 
 can be no presumption in favor of the existence of any 
 facts not directly stated in the certificate of division : — 
 no such presumption, as is made often after verdict, in fa- 
 vor of a title substantially, but defectively stated. The 
 court is to act, as if called upon novi^, originally, to say 
 what facts and circumstances it is necessary to aver and 
 prove^ in order to make out a case of harboring. 
 
 And this is a view of the case which I feel very 
 desirous to have taken into deliberate consideration. It 
 is of vast consequence that the construction of the act 
 be correctly settled, in accordance with general prin- 
 ciples, applicable to the construction of similar statutes; 
 and that it should be distinctly known what facts must 
 be averred and proved to make a case w^hich will sub- 
 ject defendants to its penalties. The result to the im- 
 mediate parties is, comparatively, of little importance. 
 
 The questions, which arose after verdict, — still pro- 
 ceeding on the supposition that my reasonings have 
 been so fortunate as to meet the approbation of the 
 court. — must be answered substantially thus: 
 
 1. The declaration of the plaintiff in neither count 
 contains the necessary averment of escape from the 
 state of Kentucky into the state of Ohio. 
 
 2. Nor does the declaration, in either count, contain 
 the requisite averment of notice. 
 
 3. Nor does either count contain a proper allegation 
 that the defendant harbored the fugitive, because the acts 
 constituting the harboring or conceahng are not set forth. 
 
 4. Each count is otherwise insufficient in these respects: 
 1. The first count, in that it does not, with any cer- 
 tainty, allege who escaped: 
 
ANSWERS TO QUESTIONS CERTIFIED. 59 
 
 2. The same count, in that it contains no certain alle- 
 gation that anji one escaped: 
 
 3. The second count, in that the allegation of con- 
 cealment is imperfect and defective: 
 
 4. Both counts, in that neither concludes against the 
 form of the statute. 
 
 It is said that these defects are cured by the ver- 
 dict. Some of them, perhaps, may be: but such of 
 ihem as go to the title to the penalty certainly are not. 
 In fact, in nearly, if not quite, every case which I have 
 cited, the objections to the declaration were taken, not 
 only after verdict, but after judgment, and yet sustained. 
 I presume, also, that this court will answer the ques- 
 tions certified without undertaking to say what shall be 
 the appHcation of the answers to the case in the Circuit 
 Court. The questions concern the sufficiency of the dec- 
 laration, and the object of them is to obtain the judgment 
 of this Court upon that. The Circuit Court may be 
 safely left to apply that judgment to the case before it. 
 
 I submit only a single additional remark upon this 
 part of the case. I have discussed most of the ques- 
 tions in the cause as arising upon the declaration; and 
 I have done so for the sake of convenience: but, in fact, 
 three of the most important questions, namely, — What 
 facts constitute an escape? What is notice? and, How 
 is it to be given? are questions or, at least, essential 
 elements of questions which arose before verdict, and of 
 course, cannot be affected by it: while another impor- 
 tant question — What is harboring.^ arose, also, before 
 verdict: although the question, — What is a sufficient 
 averment of harboring.^ — arose after verdict. 
 
 I regret the necessity of troubling the court with these 
 
60 ACT REPUGNANT TO ORDINANCE OF 1787. 
 
 discriminations; but they seem essential to a correct 
 view of the whole case. 
 
 I shall MOW pass to the questions which arise not under 
 'the act, but under the constitution and ordinance of 1787. 
 And the first of these questions is this: Is the act of 
 ' 1793, repugnant to the ordinance of 1787? 
 
 At the close of the revolutionary war, the Congress 
 of the United States claimed the territory west of the 
 Alleghanies, as a country conc[uered from Great Britain, 
 / to be held and disposed of for the joint benefit of all the 
 ' states. On the other hand, the same territory was 
 [ claimed by several states, as belonging, wholly or in part, 
 
 exclusively to them, 
 j These conflicting claims were adjusted by comprom- 
 
 ise in the result of which, the government of the Uni- 
 I ted States obtained undisputed possession of the re- 
 I gion north-west of the Ohio, and proceeded to provide 
 for a temporary government, for the organization of states, 
 and for the permanent establishment of certain great 
 fundamental principles, as the immutable basis of all 
 laws, constitutions and governments within the territory. 
 The ordinance of 1787 was designed to accomphsh 
 these interesting objects. It was almost the last work 
 of the Congress of the Confederation; — that illustrious 
 body, whose wisdom, fortitude, magnanimity and devotion 
 to freedom attracted and still attract the general hom- 
 age of mankind; — and, among all its splendid titles to 
 honor and veneration, none shine brighter than this 
 ffreat act. It hes at the very foundation of the institu- 
 tions of the free North-west : and, in all time to come, it 
 will be, as, in time past, it has been, regarded reverently, 
 as the source and safeguard of its prosperity and power. 
 
 \ 
 
ORDINANCE OF 1787. 61 
 
 The power of the Congress of the Confederation to \ 
 estabhsh this ordinance has sometimes been drawn in 
 question : But never, with success. The Congress of 
 the Confederation represented the United States in 
 carrying on the war with Great Britain, and, in that 
 capacity, might doubtless, hold all acquisitions made by 
 conquest from the common enemy, for the general benefit 
 of all the States. The country west of the Alleghanies 
 was an acquisition so made. The right of the United 
 States thus acquired was confirmed by the cessions of 
 the states to the whole vast territory north-west of the 
 Ohio. The title, thus acquired and thus confirmed, was 
 held by the United States in trust, for the benefit of the 
 several states, subject to certain conditions in the deeds 
 of cession. In the execution of this trust. Congress pro- 
 ceeded to promulgate and establish the ordinance of 
 1787; and it cannot be doubted, it seems to me, that, 
 holding the proprietary title in the land and complete 
 jurisdiction over the territory in every respect, Congress 
 had a perfect right to prescribe conditions of settlement 
 within the territory, and establish principles, to which 
 all laws and constitutons established within it should 
 conform, provided only, that these conditions and princi- 
 ples should not be incompatible with the great ends in 
 view, the common benefit of all the states, and the crea- 
 tion and admission into the union, of new states upon 
 equal footing with the original states. 
 
 Accordingly the ordinance, after making various tem- 
 porary provisions, proceeded to announce certain articles 
 of compact between the original states and the people 
 and states in the territory, and declared that they should 
 
 REMAIN FOREVER UNALTERABLE, UnlcSS by COmiTlOn COU- 
 
 sent. These articles established the inviolabilitv of 
 
62 ORDINANCE OF 1787. 
 
 contracts, the sacredness of personal liberty, and the en- 
 tire freedom of conscience. Tliey recognized and en- 
 forced the duty of government to foster schools and dif- 
 fuse knowledge. They declared the navigable rivers of 
 the territory to be common highways and forever free to 
 the inhabitants of the territory and to the citizens of the 
 United States and of any other states that might be 
 afterwards admitted ; they enjoined the observance of 
 good faith towards the Indians, and the performance 
 towards them, of those acts of kindness and peace, which 
 should ever adorn the intercourse of the mighty with the 
 weak ; and finally, that nothing should be omitted, which 
 might be thought justly to belong to an instrument pro- 
 viding for the creation of free states, they declared that 
 ^' there should be neither slavery nor involuntary servi- 
 tude within the territory, otherwise than in the punish- 
 ment of crimes." 
 
 The great object of these provisions was explicitly 
 declared. It was to " extend the fiuidamental principles 
 of civil and religious liberty, which form the basis, where- 
 on these republics, their laws, and constitutions are erec- 
 ted; to fix and establish these principles, as the basis of 
 all laws, constitutions and governments, which, forever, 
 hereafter, shall be formed in said territory; to provide 
 also, for the establishment of states and permanent govern- 
 ment therein, and for their admission to a share in the fed- 
 eral councils, on an equal footing with the original states." 
 ^ I know not that history records a sublimer act than 
 
 \ this. The United American States, having just brought 
 \ their perilous struggle for freedom and independence to a 
 y successful issue, proceeded to declare the terms and con- 
 \ ditions on which their vacant territory might be settled 
 ■ and organized into states; and these terms were, — not 
 
ORDINANCE OF 1787. Q^ 
 
 tribute, not render of service, not subordination of any 
 kind, — but the perpetual maintenance of the genuine 
 principles of American liberty, declared to be incompat- 
 ible with slavery; and that these principles might be in- 
 violably maintained, they were made the articles of a 
 solemn covenant between the original states, then the 
 proprietors of the territory and responsible for its future 
 destiny, and the people and the states who were to oc- 
 cupy it. Every settler within the territory, by the very 
 act of settlement, became a party of this compact, 
 bound by its perpetual obligations, and entitled to the 
 full benefit of its excellent provisions for himself and 
 his posterity. No subsequent act of the original states, 
 could affect it, without his consent. No act of his, nor 
 of the people of the territory, nor of the states es- 
 tablished within it, could affect it, without the consent of 
 the original states. 
 
 The ordinance was not adopted upon any sudden im- 
 pulse. It was a deliberate, well considered act, and it 
 received the unanimous assent of the states. There 
 was not even a single negative from any delegate of any 
 state, except that of one member from New-York. 
 
 There can be, in my judgment, no ground whatever, 
 for saying that, at any time, before the organization of 
 state governments within the territory, these articles of 
 compact, were in any respect, changed. They could 
 not be affected by the adoption of the constitution of 
 the United States, for that was the act of the people of 
 the original states, to which the people of the territory 
 were, in no sense, parties. The constitution of the 
 United States, neither did, nor could, of itself and with- 
 out the consent of the people and states of the territory, 
 repeal, impair, abridge or alter the terms of the compact. 
 
64 ORDINANCE OF 1787. 
 
 Tt left them, as it found them, in the full force of their 
 original obligation. 
 
 Nor was it supposed by any body, at the time of the 
 adoption of the constitution, that it impaired the full effect 
 of the ordinance. This is manifest from the express 
 terms of the act to provide for the government of the 
 territory north-west of the river Ohio, passed at the first 
 session of the first Congress under the constitution The 
 object of that act was declared, in its preamble, to be 
 "that the ordinance of 1787 may continue to have 
 FULL EFFECT."' It couformcd the temporary arrangements 
 of the territorial government to the action of the new 
 National Government, but did not touch at all any pro- 
 vision of a permanent nature. 
 
 Nor did the admission of the state of Kentucky into 
 the Union, in 1792, affect the compact; for that was an 
 act between the states, represented by Congress, and the 
 people of Kentucky, represented by their convention, 
 with which the people of the territory had no concern. 
 When the State of Ohio came into the union, in 1802, 
 it was under the provisions of an act of Congress, which 
 contained an express proviso, that the constitution of 
 the new state should " be republican, and not repugnant 
 to the ordinance of 1787, between the orifrinal states and 
 the people and states of the territory.'''''^ 
 
 The constitution of Ohio was framed in accordance 
 with these provisions. The Convention of the People of 
 the territory incorporated into the constitution of the new 
 state, the leading principles of the ordinance ; thereby 
 claiming for the people of Ohio, the benefit of those 
 provisions; recognizing their perpetual obligation, and 
 imparting to them an additional sanction. The inter- 
 
 1) 1 story's Lawi, U. S.,32. (2) 2 Story's Laws, 870. 
 
 \ 
 
OHIO ADMITTED L XDER THE ORDI.NA.NCE. 
 
 65 
 
 diet against slavery was transferred to the constitution 
 in the very words of the ordinance ;' and, as if to mani- 
 fest as plainly as possible the sense of the j)eople on 
 this subject, an additional provision was inserted, declar- 
 ing that '' no alteration of the constitution shall ever 
 take place, so as to introduce slavery or involuntary servi 
 tude into this state."^ 
 
 Ohio, in truth, came into the union, not so much in vir- 
 tue of any act of Congress consenting to her admission, 
 as in virtue of a right secured to her by the ordinance, 
 and which could not have been denied to her without a 
 flagrant breach of faith. The ordinance itself provided 
 for the erection of states within the territory; and au- 
 thorized such states to form i)ermanent constitutions and 
 state governments; and stipulated for their admission, by 
 their delegates into the Congress of the United States, 
 upon the single condition that the constitution and the 
 governments so to be formed, should be republican, and in 
 conformity with the principles contained in the compact. 
 The territorial limits of Ohio were defined by the ordi- 
 nance, subject to the right of Congress, to form one or two 
 states out of that part of the north-western territory 
 lying north of an east and west line through the southern 
 bend or extreme of Lake Michigan.^ It was the right 
 of the people within the limits thus defined, to form their 
 state government and come into the union, whenever the 
 number of inhabitants should reach sixty thousand; and 
 earlier, if consistent with the general interests of the 
 confederacy. And, as it was their right to come in, un- 
 der the ordinance, and, as it was by that instrument 
 
 (1) 1 Chase's Statutes of Ohio, 82. Cons. Art. 8, sec. 2. (2) 1 Chase 81, Con*. / 
 Art. 7. sec. 5. (3) See the Ordinance, 3 Story's Laws, 2073. / 
 
G6 ORDINANCE LIMITATION OF RIGHT OF RECLAMATION. 
 
 made their duty to fnune their government and constitu- 
 tion in accordance with the articles of compact, it seems 
 impossible to maintain that by the act of entering the 
 union, any of those articles could be abridged, impaired, 
 or, in any way, modified. Certainly, the evidence of in- 
 tention, both on the part of the People of the state and of 
 the United States, that the articles of compact should 
 stand unchanged, is full and complete. 
 
 Ohio, then, came into the union, with the ordinance in 
 her right hand. Her constitution did not supercede the 
 ordinance ; but, on the contrary, re-afitirmed most of its 
 provisions, and promulgated them anew, as "great and 
 essential principles of liberty and free government," to 
 be " forever unalterably established," for the benefit of 
 the people of the state.^ And it is quite true, that most 
 of the principles established by the ordinance, for all 
 time, as fundamental law, are nothing else than the 
 principles of natural right and justice; the obligation of 
 which, although it may be recognized and enforced by 
 compact, is derived, not from any agreement or consent, 
 but from the essential constitution of man and society. 
 
 What, then, imder the ordinance, were the obligations 
 of the people of Ohio, and what the rights of citizens of 
 other states, in relation to escaping servants? 
 
 The clause in the ordinance, after prohibiting the ex- 
 istence of slavery in the territory, proceeds thus: ^'- Pro- 
 vided^ always, that any person escaping into the same, 
 from whom labor or service is lawfully claimed in any 
 of the oriifinal states, such iiigitive may be lawfully re- 
 claimed, &c."* 
 
 This exception to the prohibition was confined to the 
 
 (1) Cons, of Ohio, Art. 8, (2) 1 Story's Laui«. 2078. 
 
ORDINANCE LIMITATION OF RIGHT OF RECLAMATION. 67 
 
 original states, not by accident, but of purpose ; for the 
 clause securing to the citizens of the states, the use of 
 the rivers of the territory, is extended expressly to citi- 
 zens of states, thereafter to be admitted into the union.' 
 It is quite probable, that, at that time, it was not suppo- 
 sed that any new slave state would ever be admitted 
 into the union. The clause tiierefore, must be taken as 
 it is found, and must receive the construction which its 
 language demands. Its plain import is, that the right of 
 reclaiming fugitives from servdce is confined to the citi- 
 zens of the original states. 
 
 The only exception to the prohibition of slavery, or 
 involuntary servitude, is this restricted right of recla- 
 mation. If this right of reclamation may be extended 
 to citizens of other states, the prohibition may be nar- 
 rowed and restrained in its operation. If it can be 
 narrowed or restrained, it may be destioyed. The pow- 
 er which can modify, may abohsh. It is obvious, that 
 the prohibition in the ordinance must be maintained un- 
 impaired, or surrendered altogether. It must be enforced 
 as to all slavery and involuntary servitude, except that 
 to which a fugitive from an original state must be sur- 
 rendered, or it must be held to be no security whatever 
 against the introduction of slavery into the state. If it can 
 be successfully maintained, that the clause in the federal 
 constitution extended the right of reclamation to thft 
 citizens of new states, it will follow that an amend- 
 ment to that constitution may give to the citizens of other 
 states, emigrating into Ohio, the right to bring their slaves 
 with them and hold them there. An amendment of the 
 constitution, may be adopted without the assent of a 
 
 (1) 3. M 2077. 
 
68 COMPACT IN THE ORDINANCE NEVER ABROGATED. 
 
 single state north west of the Ohio ; and consequently, the 
 entire clause prohibiting slavery, as well as every guar- 
 anty of personal rights contained in the ordinance, may 
 be swept away, against the will of tlie people and the 
 states of the north-west. 
 
 Up to the time when Ohio came into the union, it can- 
 not be reasonably pretended that any servant escaping 
 into the noith west territory from any state, not being one 
 of the original states, could be reclaimed; tor, up to that 
 time, there is not the slightest ground for saying that the 
 people of the territory, had, in anywise, assented to any 
 extension of the right of reclamation. 
 
 And when Ohio did come into the union, it was upon 
 the express condition on the part of Congress, and with 
 the full understanding on her part, that her constitution 
 and government should be established in conformity with 
 the ordinance. 
 
 The state of Ohio and the courts of Ohio have never 
 regarded the ordinance as abrogated by the admission of « 
 Ohio into the union. The Supreme Court of the state 
 has declared the articles; of compact to be of higher 
 obligation than the state constitution : "for the constitu- 
 tion may be altered by the proi)le of the state, while 
 these cannot be altered without the assent both of the 
 people of this state, and of the United States, through 
 their representatives. It is an article of compact, and, 
 until we assume the principle that the sovereign power 
 of the state is not bound by compact, this clause must 
 be considered obligatory."^ And Mr. Justice McLean, 
 referring to the possibility that a majority of the voters 
 of Ohio might so alter the constitution as to admit 
 
 (1) Hogg V. Znnfsvillc Canal and Mannjucturing Company, 5 Ohio Rep. 414. 
 
PROHIBITION OF SLAVERY NOT ALTERED BY CONSTITUTION. 69 
 
 slavery, observed : " 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 im- 
 port has been misconceived by the people of the state 
 generally. They have looked upon this provision as a 
 security against the introduction of slavery, even beyond 
 the provisions of the constitution. And this considera- 
 tion 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."^ And 
 Mr. Justice Story, in his notice of the ordinance in his- 
 work on the constitution, does not intimate any doubt as- 
 to the permanent obligation of its articles of compact.^ 
 
 And will it now be said that Ohio, — though no such 
 thing was intended, or, in any quarter, so much as thought 
 of, — by the act of entering the union, gave her assent to 
 a modification of the provision of the ordinance which 
 prohibits slavery? Will it, can it be said, that the consti- 
 tution of the union, which we have ever understood, was 
 designed to favor hberty, did, in fact, admit slavery 
 where it had been prohibited by the act of the nation ? 
 
 With quite as much — with even more — reason may it 
 be maintained, 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 of the states, created out of 
 the territory, into the union. The compact in relation to 
 navigation, and that in relation to slavery, stand upon 
 the same foundation.^ And it has never been doubted, 
 so far as I am advised, that the provision in regard to 
 
 (1) Spooner v. McConnell, 1 McLean, 349. (2) 3 Comm. on Cons. 188. 
 (3) 1 McLean, 349. 
 
70 ACT OF 1793, REPUGNANT TO ORDINANCE OF ITH?. 
 
 navigation is a limitation, both upon the general govern- 
 ment and upon the state, securing to the citizens of the 
 union valuable and important rights.* 
 
 Mr. Justice McLean, in the case for damages already 
 referred to, intimated no change in his opinion, as to the 
 permanent obligation of the compact, expressed in 
 Spooner v. McConnell ; but seemed to think that the act of 
 Congress was not in violation of the compact, but only 
 an extension of the principle recognized in the compact 
 to analogous cases. But I submit with great deference, 
 that this very extension constitutes the violation. The 
 compact prohibits all slavery, except in a certain class of 
 specified cases. The act of Congress enlarges this 
 exception, and of course, restricts the general rule of 
 freedom. Surely this is impairing the obligation of the 
 compact: and, if so, to this extent, the act is void. 
 
 If, then, the interdict against slavery be of permanent 
 obligation, unaffected by the admission of Ohio into the 
 union ; if that interdict, on which the people of Ohio 
 and the North west have hitherto reposed, be not delu- 
 sive and vain : it cannot be doubted, it seems to me, that 
 the act of 1793, so far as it authorizes the reclamation 
 of servants escaping from the state of Kentucky, which 
 is not one of the original states, must be held to be of 
 no effect. 
 
 The interdict against slavery is not the only clause of 
 the compact violated by the act of 1793. There is not 
 one of the guaranties of personal rights established by 
 the ordinance, which is not, in my judgment, violated by 
 this act. But I shall reserve what I have to say on these 
 points, until I come to compare the act with the guaran- 
 ties of personal rights, contained in the constitution. 
 
 (1) Hulchinson V. Thompson, 9 O. R. 66. 
 
ACT OF 1793 UNCONSTITUTIONAL. 71 
 
 I now reach the gravest and most momentous ques- 
 tion in this important controversy: — 
 
 Is the act of 1793 repugnant to the Constitution of 
 the United States? 
 
 I am met at the threshold, by the objection, that this 
 question has already received the full consideration and 
 final decision of this court, and is no longer an open 
 question. But, with the greatest deference, I submit that 
 no single decision of any tribunal, however exalted, upon 
 a question of such high consequence as this, should be 
 regarded as absolutely final and conclusive. I need not, 
 I am sure, remind your honors, that the most thorough 
 investigation, the clearest apprehension, and the largest 
 learning, are not absolute safeguards against error. Even 
 this court has found occasion, heretofore, to revise, quali- 
 fy, and sometimes, overrule its former decisions: and I 
 feel well assured that the enlightened judges, who now 
 sit here, will not refuse to hear with patience, and con- 
 sider with candor, an argument, urged, respectfully and 
 in good faith, by the humblest member of the profes- 
 sion, to induce them to recall any decision, however well 
 weighed and unanimous, if pronounced after a single 
 hearing. Especially will this Court listen to such an 
 argument, when the opinion sought to be changed, was 
 not unanimous; not necessary to the determination of 
 the precise question before the court at the time; and, 
 sustained by those who concurred in it, upon different, if 
 not repugnant, reasons. 
 
 The precise question before this Court, in the memo- 
 rable case of Prii^g v. Pennsi/lvania, was this: — Are the 
 statutes of the states, — which denounce as a crime, the 
 abduction from their respective jurisdictions, of persons 
 
72 PRIGG V. PENNSYLVANIA, NOTICED. 
 
 residing or being within tiiem, — unconstitutional, in their 
 application to the masters and the agents and attorneys 
 of masters, who remove fugitive servants by force, and 
 without any sanction from the laws of the state or from 
 the acts of Congress? In other words, — Does the Con- 
 stitution of the United States, of itself and without legis- 
 lation by Congress or the States, confer on the masters 
 'of fugitive servants, the right, in person or by their 
 agents, to retake them by force, in any state to which 
 they may have escaped, and convey them out of such 
 •state to that from which they fled, without process or 
 judicial sanction; and are all laws of the states to pre- 
 vent kidnapping or abduction by private force, unconsti- 
 tutional and void in their application to such cases? The 
 court held that the master of a fugitive slave may pur- 
 sue 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 
 such seizure and abduction penal, is unconstitutional and 
 void. 
 
 It may be doubted, indeed, whether this decision 
 can be (|uite consistent with the affirmation of the con- 
 stitutionahty of the act of 1793. It would rather seem, 
 if it was the intention of the framers of the consti- 
 tution that the clause respecting fugitive servants should 
 have the effect attributed to it, that they meant to dis- 
 pense with legislation by Congress r-nd the states alto- 
 gether: and this conclusion is greatl> strengthened by 
 the fact that no power to legislate on the subject is con- 
 ferred, unless by very remote implication, upon Congress, 
 by the constitution. The opinion of Mr. Justice Bald- 
 win, :indeed, went upon this ground. But, be this matter 
 
PRIGG V. PENNSYLVANIA, NOTICED. 73 
 
 as it may, it is, at all events, quite certain that it was not at 
 all necessaiy. in order to reach the decision to which the 
 court came, to affirm the constitutionality of the act 
 of 1793. 
 
 No question, therefore, as to the constitutionality of 
 that act was necessarily before the court in the 
 Prigg case. Its constitutionality was indeed, affirm- 
 ed; by some of the judges, as the exercise of a 
 power vested exclusively in Congress; by others, as 
 the exercise of a power concurrent in Congress and in 
 the state Legislatures. One learned Judge, Mr. Justice 
 McLean, held, that the act conferred an exclusive power 
 on Congress, but dissented from the opinion that the mas- 
 ter of a fugitive could exercise the power of recaption, un- 
 der the constitution, in disregard of the provisions of 
 the statute. He held, on the contrary, that for such acts 
 the master was amenable to the criminal laws of the 
 state, which he thereby violated. 
 
 In no former case, I think, has so great a diversity of 
 views marked the reasonings by which the several judges 
 of this Court have reached their respective conclusions. 
 Perhaps, also, it is not too much to say, that the decis- 
 ion of the majority, both as to the right of recaption 
 under the constitution, and as to the constitutionality of 
 the act of Congress, has failed to command the assent 
 of the profession, especially in the nonslaveholding 
 states. The decision has been submitted to, as the 
 judgment of the highest constitutional tribunal of the 
 country; but submitted to, generally, in the hope and 
 with the expectation, sometimes expressed and some- 
 times silently entertained, of its ultimate reversal here. 
 
 It is quite certain, also, as I think, that the right of 
 reclamation, converted by the decision into a right of 
 
74 PRIGG V. PENNSYLVANIA, NOTICED. 
 
 recaption, has not been fortified, but, on the contrary, 
 seriously impaired by it. Tlie right is placed, by the 
 opinion of the court, upon a ground, so repugnant to the 
 feelings of all classes of men in the north and north- 
 west, and so subversive of the sovereignty and indepen- 
 dence of the states, that it encounters, at tliis moment, 
 a degree of jealousy and hostility beyond all former pre- 
 cedent. The presence of the slave hunter, ranging, 
 at will, through the free states, and clothed with a power, 
 above the control of state laws, and state constitutions, 
 and state authorities, to seize and drag beyond state 
 limits, without legal process, and without any judicial 
 sanction, state or federal, persons, who, for aught that 
 appears beyond his bare assertion, are as much entitled 
 to the protection of the lav/ as he is himself, is a portent- 
 ous anomaly, not to be contemplated without alarm and 
 irritation. Every attempt to put this power into actual 
 exercise, leads, and must necessarily lead, to commotion 
 and violence ; and every scene of commotion and violence 
 tends to gather around the right of reclamation an in- 
 dignant public sentiment, which must, at length, deprive 
 it of all practical value. It has been said, that, to the 
 extent of giving the right of recaption, the constitution 
 executes itself. It may be said, 1 think, with entire 
 truth, that, upon the construction given, it not only exe- 
 cutes itself, but the right of recaption also. If there can 
 be a suicidal power, it is that of seizing, in a free state, 
 persons claimed as fugitives from service, and taking 
 them beyond its limits, by private force, and without judi- 
 cial sanction. 
 
 I proceed, without further delay, to state the proposi- 
 tion which I shall endeavor to maintain. It is this: 
 
ACT OF 1793 UNCONSTITUTIONAL. 75 
 
 The act of Congress of February, 1793, so far as re- 
 lates to fugitives from service, is unconstitutional and 
 void : 
 
 1. Because the provisions of the act are repugnant to 
 several positive provisions of the Constitution. 
 
 2. Because the Constitution confers on Congress no 
 power to legislate at all upon the subject. 
 
 I insist, first, that the provisions of the act of 1793 are 
 repugnant to several positive j)rovisions of the Consti- 
 tution. 
 
 In order to obtain a clear understanding of this matter, 
 it will be necessary to advert to the circumstances of the 
 country, and the state of public opinion, at the time of 
 the adoption of the Constitution ; and it will also be 
 proper to consider what slavery, as a legal condition, 
 really is. 
 
 It is thought, by some, that a leading object in the for- 
 mation of the Federal Constitution was to secure to the 
 citizens of the slaveholding states their rights of proper- 
 ty in slaves. But what is there in the history of the 
 country, or of the Constitution, to warrant such an 
 opinion? On the contrary, does not that history prove 
 that it was the clear understanding of all parties con- 
 cerned in the establishment of the National Government, 
 that the practice of slaveholding was inconsistent with 
 the principles on which that government was to be 
 founded? And that it was their settled purpose, — how- 
 ever that practice might be tolerated or legahzed in 
 certain states, with whose legislation the General Govt 
 ernment could not interfere, — that it should receive no 
 national sanction whatever? 
 
76 PUBLIC ACTS PRIOR TO THE CONSTITUTION. 
 
 It seems to me that no unprejudiced student of our 
 history can come to any other conclusion than this. 
 
 The very lirst act of the first Congress of the Confed- 
 eiation — the memorable non-importation, non-consump- 
 tion and non-exportation agreement of that illustrious 
 body — contained a clause, by which the delegates pledged 
 themselves and their constituents to discontinue, wholly, 
 the traffic in slaves. This clause has been offen quoted, 
 but is of sufficient interest to justify its introduction here: 
 ''We Mill neither import nor purchase any slave im- 
 ported, after the first day of December next. (1774,) after 
 which time we will wholly discontinue the slave trade, 
 and neither be concerned in it ourselves, nor will we hire 
 our vessels or sell our commodities or manufactures to 
 those who may be concerned in it." ^ 
 
 Two years afterwards the Declaration of Indepen- 
 dence was ])romulgated. No one will be willing to say 
 that its language was not carefully considered, or that 
 the patriot statesmen, who put their names to it. were 
 liypocriies who sought to delude the world by empty 
 flourishes of rhetoric. It wi'l be admitted that they 
 were earnest men. who meant what they said. ^^ ell, 
 tliese men. at that solemn moment, and in that solemn 
 appeal to God and Mankind, diose \o put the'v cause 
 upon the solid foundation of equality o+' rights among 
 men. "We hold" they said, -these truths lO be self- 
 evident; that all men are created equal: that they are 
 endowed by their Creator with certain inalienable 
 rights: that among these are Ufe. liberty, and the pur- 
 suit of happiness.'' This declaration was put forth to 
 the world as an expression of the deliberate judgment of 
 
 (1) 1 American Archives, 914, 4ih Series: where the facsimile signatures of the 
 delegrates may be seen. 
 
PUBLIC ACTS PRIOR TO THE COXSTITUTIOX. 77 
 
 the American People. It was adopted and recognized / 
 as its own act by every Colony which acceded to the / 
 Confederation. It is not going too far, in my poor judg- / 
 ment, to hold this declaration to be an authentic pro-/ 
 mulgation of the common law of the Union in respect 
 to the inviolability and inalienability of personal hbertV, 
 and inconsistent with the longer continuance of slavery 
 in any of the States. It is not impossible that such w4s 
 the effect expected from it, by some, at least, of those 
 who put it forth. Be this as it may. however, it seems 
 to me quite certain that the language of the declaration 
 is wholly inconsistent with the idea that the Americkn 
 States, as One JYation, were expected, in any national 
 act, or by any national document, to acknowledge tor 
 endure slavery, as an institution fit to be fostered Ir 
 sustained by national authority, \ 
 
 When the war of the revolution terminated in the\ 
 recognized independence of the repubhc, the Congress \ 
 issued an address to the states, the leading object of 
 which, was to persuade to tlie provision of a fund for 
 the discharge of the pubhc engagements. Jn the con- 
 clusion of this address. I find this passage, wh^ch I 
 deem worthy to be considered in this connectiou: "Let 
 it be remembered, finally, that it has ever been the pride 
 and boast of America, that the rights for which she con- 
 tended, were the rights o'' human nature.''" Whaiever 
 else may be said of this, it camot be denied that it 
 proves, beyond conc'-oversy, that the Declaration was in- 
 tended to assert the right to hberty, not as vested in a 
 
 (1) And wel'. worthy to be deeply pondered by every American, are these coaclu- 
 ding sentences oi" this addiess: "In this view, the citizens Oi" the United States, are 
 responsible for the greatest trust ever confided to a political society. If justice, good 
 faitb, honor, gratitude and all the other qualides, which ennoble the character of a na- 
 tion and people, and fulfil the ends of governmeut, be the fruits of our establishment, 
 the cause of liberty will acquire a dignity and lustre it has never yet enjoyed ; and an 
 
/O PUBLIC ACTS PRIOR TO THE CONSTITUTION. 
 
 ^part of mankind only, but as inseparable from *human 
 nature itself. 
 
 Is it asked, Why did not the Congress of the Confed- 
 eration, if it intended to assert the rights of all men to 
 liberty, take measures for the abolition of slavery through- 
 out the states? The answer is easy: The Congress 
 possessed no powers adequate to that object. The con- 
 federation was a league, rather than an union. The del- 
 egates of the states in Congress had no powers, except 
 those conferred upon them in terms by the Articles of 
 Confederation, and those which resulted necessarily from 
 the fact, that the Congress was the sole public represen- 
 tative of the states, in their confederate capacity. The 
 Congress, therefore, could not intermeddle with the do- 
 mestic concerns of the states. It could announce princi- 
 ples of justice and right, but it could give practical 
 efficiency to them, as rules of law, only within territory 
 subject to its exclusive jurisdiction. 
 
 I have already directed the attention of the court to 
 a signal instance, in which. Congress, having acquired the 
 exclusive right of property and jurisdiction over the ter- 
 ritory northwest of the Ohio, embraced with alacrity, the 
 opportunity thus presented, of proving to the world the 
 sincerity of its declarations. 
 
 If any man be disposed to reproach the fathers of the 
 republic with inconsistency and hypocrisy, in not giving 
 practical effect to their declarations in favor of liberty 
 and the rights of human nature, let him turn to the Ordi- 
 
 exaniple will be set which cannot but have the most favorable influence on the rights 
 of mankind. If, on the other side, our g-overnment should be unfortunately blotted 
 with the reverse of these cardinal and essential virtues, the great cause which we 
 have engaged to vindicate, will be dishonored and betrayed; the last and fairest ex- 
 ^periment in favor of the rights of human nature will be turned against them; and 
 \heir patrons and friends exposed to be insulted and silenced by the votaries of ty- 
 ranny and usurpation." 1 Mad. Pap. Jlpp. 11. 
 
EXPECTATION OF EMANCIPATION. 79 
 
 nance of 1787, and be silent. By that great instrument 
 the Congress of the Confederation dedicated that immense 
 national domain to liberty forever, and thus, by one illus- 
 trious act, manifested its own sincerity, and furnished a 
 precedent for national action, in all future cases of like 
 nature. By a single provision, the slavery, then existing 
 in the territory, was abolished, and its future introduction 
 was forever prohibited. And thus the Congress directly 
 asserted, what it had before often indirectly declared, 
 that slavery was incompatible with *' the fundamental 
 principles of civil and religious liberty," which constitute 
 the basis of American Government.^ 
 
 These several national acts, it seems to me, supply 
 conclusive proof that it was never intended that the 
 American Nation, should be, in any sense, or in any 
 degree, implicated in the support of slavery : but, on the 
 contrary, that it was the original policy of the government 
 of the United States, to prohibit slavery, in all territory 
 subject to its exclusive jurisdiction, and to discoun- 
 tenance it by the moral influence of its example and 
 declarations, in the states and districts over which it 
 had no legislative control. 
 
 Nor is there, as it seems to me, any room for doubt 
 that it was the general expectation, at that time, that 
 slavery, under the influence thus exerted, would disap- 
 pear from the legislation and the poHty of every state, at 
 no very distant period. Evidences of this anticipation, 
 and of the satisfaction with which the prospect was 
 
 (1) All persons born in the territory are free. The ordinance fixed forever the 
 character of the population in the region over which it extended. Martin v. Chex- 
 naider, 20 Mart. La. Rep. 699. 
 
 Under the ordinance of 1787 the right of the master of a slave escaped into the 
 territory northwest of the Ohio, was the qualified right of reclaiming him and con- 
 veying him out of the territory into one of the original states in which he owed in- 
 voluntary service or labor. 4 Mart. La. Rep. 385. 
 
80 EXPECTATION OF EMANCIPATION. 
 
 contemplated, abound in tlie writings of Washington, of 
 Jefferson, of Martin, and otlier distinguished men of 
 that era : and I am not aware of any single instance of 
 the utterance of a different expectation in any quarter. 
 Already, at the time of the promulgation of the ordi 
 nance, had seven states abolished slavery, or taken 
 decisive measures for abolishing it : and the admission of 
 Maine and Vermont, as nonslaveholding states, was 
 looked upon as certain. On the other hand, there were 
 only seven states in which no measures had been taken 
 for the removal of slavery; and, although the admission 
 of Kentucky and Tennessee was anticipated, I am not 
 aware that history [furnishes any warrant whatever, for 
 saying that they were to come in as slaveholding states. 
 On the contrary, the powerful public sentiment in 
 favor of emancipation in Maryland, Virginia, and North 
 Carolina, shared, — especially in Virginia and Maryland, 
 by nearly all the most illustrious public men of the time, — 
 would justly authorize a different expectation. But, 
 waving this, and conceding, against the weight of evi- 
 dence, that emancipation was not anticipated in any 
 state south of Pennsylvania, and that every state south 
 of the Ohio was expected to come in as a slaveholding 
 state, it is still certain that the number of slaveholding 
 states, within the limits of the United States, as they 
 existed up to the close of the last century, could, in no 
 event, exceed eleven. Under these circumstances, the 
 promulgation of the ordinance, by which deliberate pro- 
 vision was made, by the unanimous assent of all the 
 states, for the admission ot five new nonslaveholding 
 states, and, consequently, for the permanent ascendancy 
 of the nonslaveholding interest in the councils of the 
 confederacy, proves to me, beyond the possibility of 
 
SLAVEHOLDING NOT SANCTIOxVED BY THE CONSTITUTION. 81 
 
 doubt, that it was not expected, at that time, that ^ 
 slavery would be a permanent institution of any state. \ 
 
 Such was the state of opinion at the time the consti- 
 tution was h-amed; and the pages of Mr. Madison's 
 report of the Debates in the Constitutional Convention are 
 full of proofs of its influence upon the proceedings of 
 that body. Every where we see the clearest evidence 
 of deliberate purpose, to exclude all recognition of the 
 rightfulness of slaveholding, and all national sanction to 
 the practice, from every provision of the constitution. Mr. 
 Madison, himself, declared that it was " wrong to admit 
 in the constitution the idea, that there can be property 
 in men.'" Neither the word ''slave," nor the word 
 "slaveiy," nor any tenn equivalent to either, is to be 
 found in the instrument; and the exclusion of these 
 words, is a most emphatic censure of the practice 
 represented by them. Even the word "servitude," 
 as we have seen, was stricken out on the motion of 
 Governor Randolph of Virginia, and the word "ser- 
 vice " inserted in the clause relating to fiigitives from 
 service, upon the express ground that the "former was 
 thought to express the condition of slaves, and the 
 latter the obligation of free persons." 
 
 It is quite true that the constitution contains several 
 clauses which were designed to refer to slaves ; but not 
 one of them refers to slavery as a national institution, to 
 be upheld by national law. On the contrary, every 
 clause, which ever has been, or can be construed as re- 
 ferring to slavery, treats it as the creature of state law, 
 and dependent, wholly, upon state law, for its existence 
 and continuance. Under the constitution, as under the 
 
 (1) 3 Mud. Papers, 1429. 
 L 
 
r. 
 
 82 SLAVEHOLDmO NOT SANCTIONED BY THE CONSTITUTION. 
 
 confederation, the national government was intended to 
 be kept free from all connection with it ; without power 
 to establish or continue it any where; but pledged by 
 every public act of the nation, from the date of the 
 assembling of the first Congress, in 1774, to exert its 
 legitimate authority to exclude it from all national terri- 
 tories, and to discourage it elsewhere, by the powerful 
 influence of example and recommendation. 
 
 A different doctrine has sprung up and found favorers 
 since : but that doctrine is not the constitution. It is a 
 pernicious parasite, rather, which, planted by the side of 
 the constitutional oak, by other hands than those of the 
 Founders of the Republic, and nurtured with mahgnant 
 care, has twined itself around the venerable tree, and now 
 displays its poisonous fruits and foliage from every branch. 
 
 The Constitution: — 
 
 Miraturque novas frondes, et non sua poma. 
 
 I call upon this honorable court to restore the true con- 
 struction of the charter of our union, by stamping 
 with its decisive disapprobation, every attempt to intro- 
 duce into it, what its framers studiously excluded from 
 it, a sanction to " the idea that there can be property in 
 men." 
 
 The government of the United States, has nothing 
 whatever to do, directly, with slavery. It may, indeed, 
 and does recognize legal and political rights, growing 
 out of the condition of certain persons, uncler the laws 
 of the states, but it cannot, consistently with the letter 
 or spirit of the constitution, regard these persons as 
 slaves. Under the constitution, all the inhabitants of 
 the United States are, without exception, persons, — 
 persons, it may be, not free, — persons, held to service, — 
 persons, who may migrate, or be imported, — but still, 
 persons, clothed, so far as tlie constitution is concerned. 
 
SLAVERY AGAINST NATURAL RIGHT. 83 
 
 with those highest attributes of personahty, which belong, 
 of right and equally, unless the Declaration of Indepen- 
 dence be a fable, to all men. The constitution takes no- 
 tice indeed, of persons, held, under the laws of the 
 states, in peculiar relations; but it takes notice of such 
 persons, by its own descriptions, and not by those which 
 state laws furnisli. It knows no slaves. 
 
 What is a slave? I know no definition, shorter or 
 more complete, than this: A slave is a person held, as 
 property, by legalized force, against natural right. Sla- 
 very is the condition in which men are thus held. The 
 law, which enables one man to hold his fellov/ man as a 
 slave, making the private force of the individual efficient 
 for that purpose by aid of the public force of the com- 
 munity, must necessarily, be local and municipal in its 
 character.^ It cannot, speaking with strict accuracy, 
 make men property, for man is not. by nature, the sub- 
 ject of ownership. It can only determine that within 
 the sphere of its operation, certain of the people may be 
 held and treated as property by others. It can punish 
 resistance to the authority of the master, and compel 
 
 (1) All Jurists and Judges agree in this: 
 
 Thus the Supreme Courtof Mississippi has said: "Slavery is condemned by reason 
 and the laws of nature; it exists and can only exist through municipal regulations." 
 And the court adds, referring to the claim of freedom, set up in the case before it: 
 "Is it not an unquestioned rnle that, in matters of doubt, courts must lean infavo- 
 rem vita et libertaiis." Harvey v. Decker, Walker's Miss. Rep. 36. 
 
 The same court, in a later case, said : "The right of the master exists, not bv the 
 force of the law of nature, or of nations, but by virtue only of ihe positive law of the 
 State." State v. Junes, IValk. Rep. 85. 
 
 The Court of Appeals of Kentucky has declared the same rule: "Slavery is sanc- 
 tioned by the laws of this state, and the right to hold slaves under our municipal 
 regulations is unquestionable; but we view thi^ as a right, existing by positive law, 
 of a municipal character, without foundation in the law of nature or the unwritten 
 and common law." Rankin v. Lydia, 2 A. K. Marsh. 467. 
 
 The same doctrine has been recognized by the Supreme Court of Louisiana,— 
 " The relation of owner and slave is, in the states of ihis union, where it has a legal 
 existence, a creature of the n.unicipal law." Lvns/brd v. CoquiUun, 14 Mart 
 Rep. 402. 
 
I 
 
 1 1 
 
 I 
 
 84 LAW OF SLAVERY, STRICTLY LOCAL. 
 
 submission to his disposal. But, if I may be allowed to 
 introduce here the homely, but most forcible expression 
 of the great poet of Scotland: — 
 
 " A man's a man, for a' that." 
 
 The law of the Creator, which invests every human 
 being with an inalienable title to freedom, cannot be re- 
 pealed by any inferior law, which asserts that man is 
 property. Such a law may be enforced by power; but 
 the exercise of the power must be confined within the 
 jurisdiction of the state, which estabhshes the law. It 
 cannot be enforced, — it can have no operation what- 
 ever, — in any other jurisdiction. The very moment a 
 slave passes beyond the jurisdiction of the state, in 
 which he is held as such, he ceases to be a slave ; not 
 because any law or regulation of the state which he 
 enters confers freedom upon him, but because he con- 
 tinnes to be a man and leaves behind him the law of 
 force, which made him a slave. Even if the slave 
 passes from one slave state into another, he is not held 
 as a slave in the state to which he comes, by the law of 
 the state which he has left. So far as that law is con- 
 
 So,also, the Supreme Court of Massachusetts, has held: "Slavery is a relation 
 founded in force, not in right, existing where it does exist, by force of positive law, 
 and not recognized as founded in natural right." Commonwealth v. Aves, 18 
 Pick. 215. 
 
 These authorities might be multiplied without limit. I will add only a single pas- 
 satce from the celebrated judgment in the case of the negro Somerset, — a judgment 
 evidently delivered with great reluctance, but extorted by the conviction that noth- 
 ing less would satisfy the demands of the common law, after a consideration seldom 
 bestowed on a return to a writ of habeas corpus, extendetl from the 9th Dec. 1771, to 
 22d June, 1772, and aided by two successive argumentsby tiie most eminent counsel in 
 luigiand, — of whom it is enough to say that DunniiNG appeared for the return and 
 IL\RGHAVE against it. The passage is this: "The state of slavery is of such a nature 
 that it is incapable of being introduced by any reasons, moral or political, but only 
 bv ])ositive law. it is so odious, that nothing can he suflVred to support it but posi- 
 tive law. Whatever inconveniences, therej'ore, may follow frovi the decision, I 
 CANNOT SAY, that this case is allowed or approved FY tfif. i,aw of England; and 
 therefore, the black must be discharged." 20 Slate Trials, 75. 
 
LAW OF SLAVERY, STRICTLY LOCAL. 85 
 
 ceraed, he is free ; for he is beyond its reach. He may 
 remain enslaved, or, more properly speaking, he may be 
 re-enslaved under the law of the state he enters : or, 
 that law may refuse to recognize the relation imposed on 
 him by the foreign law, and then he will be absolutely 
 free. There are familiar examples of this, in many 
 slave states. The law of Virginia does not permit the 
 enslavement of native American Indians brought into 
 that state since 1691. Such a person, therefore, though 
 a slave in another state, becomes free, on being brought 
 into Virginia, for the law which enslaved him cannot 
 follow him there.^ So, also, in other slave states, slaves 
 brought into them, under certain circumstances or for 
 certain purposes, become free. The law of the state, 
 into which they are brought, refuses to lend its aid to 
 their enslavement, and the law of the state, whence they 
 came, cannot reach them, having no force in another 
 jurisdiction. 
 
 If I am correct, then, in the position that the Gov- 
 ernment of the United States, cannot, under the consti- 
 tution, create, continue, or enforce any such relation as 
 
 (1) Butt V. Rachel, 4 Mun. 211. Hudgins v. Wright, 1 Hen. Sf Mun. 133. 
 The first of these cases was argued by those eminent lawyers, Messrs. Wickhaiu and 
 Wirt ; the latter of whom the writer is happy to acknowledge as his instructor in the 
 law. They both agreed that slavery is an institution of positive law alone. The 
 second is that memorable case, in which Chancellor Wythe endeavored, as almost the 
 last act of his illustrious life, (for he died, January 8, 1806, and the cause was not 
 heard on the appeal from his decision, until November 7, 1806,) to establish, upon 
 the authority of the Constitution of Virginia, the common law presumption in favor 
 of freedom, in that state. "Upon the ground that freedom is the birthright of' every 
 human being, which sentiment is strongly inculcated in the first article of the Bill 
 of Righs," he laid it down as a general position that " whenever one person claims 
 to hold another in slavery, the onus probandi lies on the claimant." The Court of 
 Appeals sustained the decision of the Chancellor, but disapproved of his "principles 
 and reasonings, except so far as the same related to white persons and native Ameri- 
 can Indians," without however attempting to shew that the doctrine was not clearly 
 and necessarily inferrible from the Bill of Rights. 
 
86 CONSTITUTION SPEAKS OF SERVANTS, NOT SLAVES. 
 
 that of owner and property, or, — what is, under the slave 
 codes, the same thing, — of master and slave, between 
 man and man, it must follow that no claim to persons as 
 property can be maintained, under any clause of the con- 
 stitution, or any law^ of the United States. 
 
 The clause in relation to fugitives from service is no 
 exception to this remark. 
 
 Indeed, it may well be doubted, wliether the majority 
 of the convention regarded the clause as applicable, at 
 all, to escaping slaves. The delegates from no state, 
 except South Carolina, appear to have been anxious for 
 any provision of the kind. And after it was introduced, 
 various amendments were made, as we have seen, with 
 the express purpose, of excluding any implication that 
 slavery was '• legal in a moral point of view,'' and of 
 adapting the language of the clause to "-the obhgations 
 of free persons," and not to '•the condition of slaves." 
 It requires no great boldness, with the support of these 
 facts, to aflirm that the clause should be construed as 
 providing only for the enforcement of the "obligations of 
 free persons, "and not for reconsigning men to the ""con- 
 dition of slaves." 
 
 Not insisting on this, however, nor waiving it, it seems 
 to me quite certain, that this clause takes up and deals 
 with no other relation than that of master and servant. 
 It contains no recognition whatever, of any right of 
 projierty in man. It establishes no rule in relation to 
 negro or mulatto servants, which does not apply equally 
 to white servants held by law. If, under the clause, a 
 fugitive slave may be reclaimed, it is, not because he is 
 a slave, but because he is a person held to labor. In 
 that character, and only in that character, can he be 
 reclaimed. After he has been brought back to the state 
 
ACT OF 1793 UNCONSTITUTIONAL. 87 
 
 where he was held to service, he resumes the condition, 
 w^hether of ser\"ant, apprentice, involuntary servant, or 
 slave, in which he was held prior to his escape : but 
 while out of the state he is as free as any other person 
 until reclaimed. 
 
 It follows from this, that any provisions which would 
 be unconstitutional, in their application to other persons, 
 are equally unconstitutional, in their application to es- 
 caping servants. Any immunities secured by the con- 
 stitution 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. It seems highly probable that no pro- 
 vision for the reclamation of servants escaping into 
 a national territory was made, because the ordinance 
 had already provided for such reclamation as to servants 
 escaping from the original states. And this is made 
 almost certain by the fact, that the constitution and 
 the ordinance are almost contemporaneous documents, 
 and the provision as to reclamation in the former, was 
 taken, substantially, from the latter. 
 
 So far, also, as the act" of 1793 undertakes to confer 
 judicial powers on state magistrates, it is clearly void. 
 The judicial power of the union, cannot, except in open 
 breach of the constitution,^ be conferred on courts, not 
 
 (1) Martin v. Hunter's Lessee, 1 Wheat. 304. 
 
88 ACT OF 1793, UNCONSTITUTIONAL. 
 
 ordained and established by Congress, but ordained and 
 established by state Legislatures; — not responsible to 
 the general government, but responsible to the states 
 only. 
 
 Besides, Congress, under the constitution, can appoint 
 no federal officers whatever. By the second section 
 of the second article it is made the duty of the Presi- 
 dent of the United States, with the advice and consent 
 of the Senate, to appoint all judicial officers. Congress 
 may, indeed, vest the appointment of inferior officers in the 
 President alone, or in the courts of law, or in the heads 
 of departments ; but it can retain no such power to itself. 
 Yet, if this act be constitutional, Congress can appoint 
 federal officers, by thousands, at a breath ; for, by this act, 
 all, who then were or might afterwards become magis- 
 trates of counties, cities, and towns corporate, are consti- 
 tuted judges of the United States, with a vast and most 
 important jurisdiction. It were mere waste of words to 
 argue that the act, to this extent, must be unconstitu- 
 tional. It is true that this court in the Prigg case, held 
 that, in relation to claims of fugitives from service, state 
 magistrates may act: but your honors were careful not 
 to affirm that the state magistrates were clothed, by the 
 law, with any judicial authority. If state magistrates 
 act, their action must be justified, if at all, upon the 
 ground that they are the auxiliaries of^ the master, in ex- 
 ercising the 'power of recaption., not under the law, but 
 under the constitution. The magistrate must derive his 
 authority from the master, not from the act of Congress. 
 
 I submit, further, that the act is unconstitutional, in 
 all its leading provisions. 
 
 It authorizes seizure and confinement, by private 
 force, without legal process. But the third clause of the 
 
ACT OF 1793, UNCOxVSTITUTIONAL. 89 
 
 fifth amendnient of the constitution is in these words, 
 "No person shall be deprived of life, liberty, or property, 
 without due process of law." It is vain to say that the 
 fugitive is not a person : for the claim to him can be 
 maintained only on the ground that he is a person. It is 
 vain to say that the amendment did not regard fugitives 
 from service as persons within its intendment. Not only 
 is there no authority for any such assertion, but it is 
 directly contradicted by historical documents. The 
 recommendation for this amendment came from Virginia, 
 and, as proposed by her legislature, it provided that 
 "no free man shall be deprived of life, hberty or 
 property, but by the law of tiie land."^ Congress 
 altered this phraseology, by substituting, for the words 
 quoted, these: "No person shall be deprived of life, 
 liberty, or property, without due process of law." Now, 
 unless it can be shewn tiiat no process of law at all, is 
 the same thing as due process of law, it must be admit- 
 ted that the act which authorizes seizure without process, 
 is repugnant to a constitution which expressly forbids it. 
 And this right to seize, and hold, and take before a 
 magistrate constitutes the very essence of the act. 
 Without this right, the act is of no avail whatever. If 
 it fails in this, it fails altogether. 
 
 Mr. Justice Story, delivering the opinion of a majority 
 of the court, intimated, in the Prigg case, that the mas- 
 ter of an escaping servant might, at common law, retake 
 him and reconvey him to the place whence he escaped, 
 in the exercise of the right of recaption."- The learned 
 
 {1) Consult 2 Elliott's Debates, 483, for the amendment as proposed bv Virginia: 
 also, 4 Elliott's Debates, 216, for the same amendment, as proposed by Xew York, 
 nearly in the terms in which it %vas finally adopted. (2) 16, Peters 613. 
 
 M 
 
90 NO RIGHT OF RECAPTION AT COMMON LAW. 
 
 Judge relied upon the authority of Blackstone; and 
 Blackstone, in support of the proposition which he lays 
 down, refers to no other authority than Roll, a reporter 
 and author of the time of James the First, in the fif- 
 teenth year of whose reign, the last case of villeinage 
 came before an English court/ This, certainly, is not 
 the highest authority for the middle of the nineteenth 
 century, and for a country whose institutions are founded 
 on the doctrine of personal liberty. But it seems to me 
 quite clear that Blackstone never intended to sanction 
 the doctrine imputed to him. He is speaking of the 
 case where one has deprived another of his servant and 
 wrongfully detains him, and not of an escaping servant 
 at all. His obvious meaning is, that, in the case he puts, 
 the master may retake the servant, with the servant's 
 assent. The condition, by which he limits the right 
 of recaption, proves this: The master may retake, "so 
 it be not in a riotous manner, or attended with a breach 
 of the peace."^ And where was it ever held, since the 
 days of villeinage, that it is not a breach of the peace in 
 England, for a master to seize a servant, and compel him 
 by force, to return to a service, which he has left? I af- 
 firm, boldly, that there is no such right of recaption, as 
 is claimed, at common law, and no such right has been 
 recognized in England since the days of villeinage. Mr. 
 Hargrave, in the case of Somerset, stated, as an undenia- 
 ble proposition that " the laws of England will not allow 
 the servant to invest the master with an arbitrary power 
 of correcting, imprisoning or ahenating him."^ And 
 there can be no recaption, against consent, without impris- 
 onment. And Lord Hobart says: "The body of a free- 
 
 (1) 20 State Trials, 41. (2; 2 Black. Com. 4. (3) 20 State Trials, 50. 
 
ACT OF 179.{, UNCONSTITUTIONAL. 91 
 
 man cannot be made subject to distress or imprisonment, 
 by contract, but only by judgment."^ Certainly the consti- 
 tution did not intend to confer any right of recaption on 
 the masters of escaping servants, for every such recap- 
 tion is a seizure and imprisonment without process, which 
 the constitution expressly forbids. 
 
 But the amendment, prohibiting imprisonment or other 
 privation of liberty, without process, is not the only 
 clause of the constitution infringed by this act. It is 
 equally repugnant to that provision, which declares that 
 " the right of the people to be secure in their persons 
 * * * against unreasonable searches and seizures shall 
 not be violated." I ask, how can the people be subjected 
 <^.to seizures more unreasonable, than under this act of 
 Congress ? Even upon the unwarrantable assumjDtion that 
 the escaping servant has no rights, the act still violates 
 this provision of the constitution. The claimant must 
 necessarily select the object of seizure. He is not 
 confined, by the act, to negroes, nor to slaves. He may 
 seize any one, whom he chooses to claim as an escaping 
 servant, and take him before a judge, or a magistrate, 
 without authority except as the claimant's agent. He 
 may be mistaken. He may intend to kidnap. No mat- 
 ter, he may seize, confine, transport; being responsible 
 only in an action for a wrongful taking, if his victim shall 
 ever be fortunate enough to find an opportunity to bring 
 one. Surely, an act which authorizes seizure by private 
 force, upon mere claim, violates that security from un- 
 reasonable seizure, which the constitution guaranties to 
 the people. 
 
 (1) Hob. 61. In Tennessee, even as to slaves, the right of recaption does not 
 exist. Mr. Justice Catron, then Chief Justice of Tennessee, terms it "the exploded 
 doctrine of recaption." Marshall y. Pennington, Z i'er?- 431- See also, 1 CW^ 
 /i/'» General Prac. 640. 
 
92 ACT OF 1793, UNCONSTITUTIONAL. 
 
 The constitution, also, declares that, "In suits at com- 
 mon law, where the value of the matter in controversy, 
 shall exceed twenty dollars, the right of trial by jmy 
 shall be preserved." Of what value is this provision, if 
 Congress may, by legislation, provide a mode, in which 
 every man, may, at the option of a slave claimant, be 
 put upon trial of his liberty without a jury.^ \^ ill it be 
 said, that the value of a man or of his liberty is not men- 
 surable by a pecuniary standard, and, therefore, that the 
 constitutional guaranty does not apply? I answer, that 
 if Congress cannot authorize the less, surely it cannot 
 authorize the greater aggression upon individual right. 
 Or, will it be said that the proceeding is not one at com- 
 mon law? I reply, where did Congress obtain the au- 
 thority to authorize the enforcement of claims to servi- 
 ces, in a mode at variance with the course of the com- 
 mon law? Not certainly from any grant in the constitu- 
 tion; for, not only does that instrument contain no such 
 grant, but it expressly prohibits the mode of enforcing 
 the claim, which Congress has adopted, namely, impris- 
 onment without process. I insist, therefore, that Con- 
 gress has no power to authorize the seizure and trial of 
 any person without a jury. If Congress has such power 
 in this case, then, in every other, where the constitution 
 confers or guaranties a right. Congress moy, without re- 
 gard to constitutional restriction or limitation, adopt its 
 own mode of enforcing that right, and the jjeople must 
 
 (1) An act of the Legislature of Kentucky provided, that negroes and niulattoes 
 coming or being brought into the state, should be arrested, and if, upon trial before 
 the county court, it should appear that they came into and continued in the state, 
 contrary to law. they should be required to give bond for removal, and on failure, 
 should be sold for one year. It did not require the intervention of a jury, and the 
 Court of Appeals, for this reason and to this extent, held the act to be unconstitution- 
 al. Doram v. Commonwealth, 1 Dana, 331. 
 
LEGISLATION AGAINST RIGHT. VOID. 93 
 
 submit. If this be so, the constitution is waste paper. 
 and we Uve under a despotism. 
 
 The provisions of the constitution, contained in the 
 amendments, hke the provisions of the ordinance, con- 
 tained in the articles of the compact, were mainly de- 
 signed to establish as written law, certain great princi- 
 ples of natural right and justice, which exist indepen- 
 dently of all such sanction. They rather announce re- 
 strictions upon legislative po\\er, imposed by the very 
 nature of society and of government,^ than create re- 
 strictions, which, were they erased from the constitution, 
 the Legislature would be at liberty to disregard. No Leg- 
 islature is omnipotent. No Legislature can make right 
 wrong; or wrong, right. No Legislature can make liglit, 
 darkness; or darkness, light. No Legislature can make 
 men, things: or things, men. Nor is any Legislature at 
 liberty to disregard the fundamental principles of recti- 
 tude and justice. Whether restrained or not by con- 
 stitutional provisions, there are acts beyond any legiti- 
 mate or binding legislative authority. There are certain 
 vital principles, in our national government, which will 
 ascertain and overrule an apparent and flagrant abuse 
 of legislative power. The Legislature cannot authorize 
 injustice by law: cannot nullify private contracts; cannot 
 abrogate the securities of life, liberty and property, which, 
 it is the very object of society. ?.s well as of our consti- 
 tution of government, to provide; cannot make a man 
 judge in his own case; cannot repeal the laws of nature; 
 cannot create any obhgation to do wrong, or neglect du- 
 ty. No court is bound to enforce unjust law; but. on 
 
 (1) Per Marshall, C. J. in Fletcher y Peck, 2 Cond. Rep. 421. 
 
94 LEGISLATION AGAINST RIGHT, VOID. 
 
 the contrary, every court is bound, by prior and superior 
 obligations, to abstain from enforcing such law. It must 
 be a clear case, doubtless, which will warrant a 
 court in pronouncing a law so unjust that it ought not to 
 be enforced ; but, in a clear case, the path of duty is 
 plain. I rejoice that I have the sanction of this Court 
 to all these positions. I rejoice that I am able to add, 
 that much of the language, in which I have stated them, 
 is taken from one of its judgments.^ 
 
 I see not how the judicial enforcement of the claim to 
 property in man can be at all reconciled with these 
 principles; for that claim is admitted by all jurists, and 
 by none more emphatically, than by those distinguished 
 lawyers, whose opinions I have cited from the reports of 
 slaveholding states, to be, not only unsupported by, but 
 directly against natural right.- 
 
 (1) Colder V. Bull, I Cond. Rep. 173. See also, Divarris on Statutes, U. All 
 writers agree that there is a rule of right, which is of superior obligation to every 
 human law. It is called by Aristotle, 'O ncm; vofAOc; and I submit two transla- 
 ted extracts from his writings, as descriptive of it. "The law of nature" 
 he says, "is inflexible and has always the same force; as fire burns alike 
 here, and among the Persians." Rhet. B. 5, c. 10. "For what all men divine is 
 true," he says in another place, "that, by nature, there is a common rule of right 
 and wrong, which has its origin in no common consent, or compact among men." 
 Rhet. B. 1, c. 13,15. 
 
 Cicero speaks frequently of this law: "Est vera ratio, naturie congruens, diffusa 
 in omnes. constans, sempiterna."-"Est recta ratio, numine deorum tracta, impe- 
 rans honesta, et prohibens contraria."— "Lex vera atque princeps, apta ad jubendura 
 et ad vetandum, ratio est recta summi Jovis." 
 
 An eminent christian moralist and divine, thus states the same truth : "The law of 
 nature is the only rule and measure of all laws." Jeremy Taylor's Works, Vol. 3. 
 pp. 197 and 212. 
 
 And an Apostle sums up the whole matter in these words: "We ought to obey 
 God rather than men." Acts 5, "2.2. 
 
 (2) It will be observed that I do not rely on the authority of doctors of theology, 
 for an account of the nature of slavery. I prefer that of jurisprudents, accustomed 
 to consider questions of right and justice. It will, in futu.e times, be regarded, 
 doubtless, as a melancholy proof of the corruption of religion in our day, that it 
 ministers were so often found among the justifiers and advocates of slavery; and it 
 will be looked upon, probably, as "evidencing, (I use tbe words of Judge Read, of 
 the Supreme Court of Ohio,) a sort of moral insanity, a breaking up as it were, of the 
 faculties to perceive ordistinguish moral truth." See 2 West. Law Jour. 286. 
 
ACT OF 1793, AGAINST RIGHT. 95 
 
 However this may be, 1 cannot doubt that the act 
 of 1793, and much more the law of recaption, which 
 has been thought to be contained in the constitutional 
 provision relating to fugitives from service, fall within 
 the very terms of one of the descriptions of unauthori- 
 zed legislation given by this court, in Calder v. Bull; for 
 they make a man the judge in his own cause, and, even 
 more, the executioner of his own sentence. The act of 
 1793 authorizes the claimant to seize the defendant, 
 without process ; to take him, by force, before any magis- 
 trate he may select ; to hold him, by force, while the magis- 
 trate examines the evidences of claim ; to remove him, by 
 force, when the certificate is granted. The defendant, 
 thus seized and held by force, has no rights, under the 
 law. The act affords him no opportunity to adduce evi- 
 dence, and imposes no duty on the magistrate to hear 
 it, if adduced. On the other hand, the claimant is al- 
 lowed to make out his claim by affidavits, which, taken 
 by himself and without cross examination, will always 
 be partial, and, often, false. And, upon such evidence, 
 while the defendant is under such . duress and without 
 any right to be heard, the magistrate is to decide. To 
 complete the atrocious business, and leave no semblance 
 of justice whatever to the transaction, the magistrate is 
 entitled to no compensation for his services, under any 
 law, state or federal; but is left to make such bargain 
 with the claimant as he may. What is this, but to make 
 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? I say 
 fearlessly, that such acts of legislation as this, are sub- 
 versive of the fundamental principles, on which all civil 
 society rests. Let such acts be passed in relation to 
 
96 ACT OF 1793, UNCONSTITUTIONAL. 
 
 other claims. Let every man be authorized to enforce 
 his demands in this summary manner. If he finds a 
 horse, which he thinks his, in the possession of another, 
 instead of resorting to due process of law, and the old 
 fashioned replevin, let him seize the animal, take him 
 before his own hired magistrate, and prove his claim by 
 affidavits. If he claims the services of another, which 
 which that other will not perform, instead of suing him 
 for breach of contract, let him drag his reluctant neigh- 
 bor before his magistrate, establish his claim, and then 
 remove him to his task. How long would society hold 
 together, if this principle were carried into general ap- 
 plication ? 
 
 But I am not obliged to resort to any general principle 
 of the natural law, however firmly established. I find 
 firm footing in the constitution, and I take my stand upon 
 its express provisions. The American People, speak- 
 ing through the constitution, have forbidden Congress 
 to enact, and this Court to enforce any law which 
 authorizes unreasonable seizures, or privalion of liberty 
 without due process of law. This prohibition, in my 
 humble judgment, nullifies the act of 1793. 
 
 A single proposition remains to be considered. I 
 
 shall maintain that the act of 1793 is void, because 
 
 Congress had no power at all to legislate in relation to 
 escaping servants. 
 
 I have already shown that (he right of recaption, 
 exercised upon servants against their will, had no ex- 
 istence at common law, at the time of the adoption of 
 the constitution. It is onlf necessary to add here, that 
 if the right existed, as to servants, in any of the states, 
 
FUGITIVE SERVANT CLAUSE, HOW CONSTRUED. 97 
 
 it could not be enforced in other states, or in national terri- 
 tories, being a right dependant on local law, and incapa- 
 ble of being extended into another jurisdiction. It is 
 certainly incumbent, then, on those who claim, that, by 
 the constitution, the general law and presumption in 
 favor of liberty are set aside to give room for this right of 
 recaption, to make out a clear case, and produce express 
 words. Far from doing this, however, they are able to 
 shew no intimation of any such right in the constitution ; 
 while, on the contrary, we produce an express prohibi- 
 tion against the exercise of any such power, under any 
 act of Congress. 
 
 What, then, is the true construction of the constitu- 
 tional provision in relation to escaping servants? 
 
 I insist, most respectfully, but most earnestly, tliat the 
 whole clause shall be interpreted by the ordinary rules 
 of construction, applicable to all provisions of the con- 
 stitution. It seems to me indefensible, "in order to 
 clear the case of difficulty,"^ to adopt a special rule of 
 interpretation for this particular clause. It seems to me, 
 impossible, after a dehberate consideration of the facts 
 of history, and of the most authentic account" of the 
 circumstances which attended the incorporation of the 
 clause into the constitution, to maintain that the object 
 of the provision was "to secure, to the citizens of the 
 slaveholding states, the complete right and title of 
 ownership in their slaves, as property, in every state 
 of the union into which they might escape from the 
 state where they were held in servitude." Nor have I 
 been able to discover any historical warrant, or any 
 warrant of any kind, for the statement, that the clause 
 in question "constituted a fundamental article, without 
 ^ 
 
 (1) 16 Peters 610. (2) See Madison Papers, cited ante p. 40. 
 N 
 
9M 
 
 KIKMTIVK SKIIV VNI' Cl.Al ISK, HOW CONSrUU KP. 
 
 \\\v. !i(l()|)(ioii of wliicli, i1h> union coiilil not liuvo been 
 lornicd. " 
 
 'VUv provision is, iMulonhlcdly, in rcshainl of liluMly, 
 ;,,i(| II is lo l)c conslincd strictly. ( >n(< of tlic Iciulinji; 
 ol)|(Mls of llu> constitution itself was to sccurr [XMsonal 
 firrdoin : and cwvy particular claus(\ in d(M(v-;ation of 
 this nrn(M;d ohjccl, should he restrained with.in the plain 
 and necessary import o( its t(Mins. In oah-r lo ascer- 
 (;,iii the line sense o\' any clausi", ihe w hol(> of it should 
 he i;ik(Mi touether. No rule of intcapretntion should be 
 applied, \\hi(di will not he rei;;irded as valid, when occa- 
 sion may reiiuire, in the consliuction ol every other. 
 
 I suhmil that these are the true principle's upon which 
 the provision (•oncerniui;- fui^itives from service should he 
 construed, and shall end(>avor to asciatain its true import, 
 lis to tlH> mode of reclamation, hy tlu>iraid. 
 
 TaUini;- th(> wholt> ( laus(> toilet her, and (>\aminini:, it 
 ill ilu> liij,ht of history, I cannot doubt that th(> intention 
 was, lo impose the duty of i;ivini; effect to the rii;ht of 
 rcMlamalion, upon tlu> slatt>s. I would willingly think 
 otherwise. All, or nearly all, llu> citi/.ens of the free 
 states would, I doubt not,iiladly leav(> the whol(> rc^spon- 
 sibilitv of lei;islation, upon this subject, to Coniiiess. But, 
 lookiui; at the tca-ins o( tlu> pnn ision, and comparmii it 
 with similar provisions then in t>\istence, it seems to me 
 (d(>ar, that Con^rc'ss cannot, consifiitionally, lei;islat(> 
 
 upon it. 
 
 The j';reat purpose o( the franuMS o( the constitution 
 was to (Mvate a national ;;o\ (MimuMit, ami ci)iifer upon it 
 ade.iual(> powcas. A st-condary purpose was io adjust 
 iuu\ setll(> cialam matters of ri-hl and duty between the 
 stales, and b.Mw(>en the citi/.ens o( different states, by 
 piaiuanent stipulations, havini;- tlu> forc(> aiul ellect ol 
 
KlCiriVF. bKR\ A.N r » I.AISK, A Cl.Al SK OK I OMl'Al 1. 99 
 
 Treaty oblii;aiioiis.' Roili objons weiv ncroinplishetl. 
 The ooiisiiiuiion establishes a iiovernment. lieelares its 
 principles, defines its sphere, preseribes its duties, aiul 
 confers its iHn\ers. It also establishes eeitain artieles of 
 compact or aiireeiuent betw ecu the states. It preseribes 
 certain duties, to be i)erf'ornu\l by caeli state and its citi- 
 zens, towards every other state and its citizens : and it 
 coalers lUMiain rii^hts upon each state and its citi/.ens. 
 and binds all the states to the recoi;nition and entbrce- 
 nieni ot" these riiihts. Tliese ditVerent ends of the 
 constitution. — the creation o\ a iiovernnieni and (he 
 establishment of a compact. — are entirely distinct m their 
 nature. It all the idauses ot' compact in the ciuistiliiiion 
 were stricken out. the iiovernment crcatcii by it would 
 still exist : and. if' the articles ami sections esial)hshini;- a 
 iorni ot" ^o\criimcnt were abrogated, the clauses of" com- 
 pact mii;hi still remain in force, as articK^s of' aurcrMncnt 
 amouii- the states. 'I'he clauses i^t" compact center no 
 powers on the i^ovcrmucm : auil the pin\ ers of jiiuern- 
 ment cannot he executed, except in virtue ol" express 
 pmvisions. to enlorcc the matters of" com[iact. 
 
 The clause, in relation to f\ii:iti\(>s fVom stavicc.is noih- 
 ino- else than a covenant or compact, bciwt^en the states.' 
 It has nothiiiii-. whatever, to do with the creation of a 
 i^mcrnment, and it coalers uo (unviMs. whatever. upiMi tlu^ 
 iiovcrnmem creatcil by other provisions. It declares that 
 iu> person, held to ser\ ic"c in any state undcM- its laws, 
 escapino- into another, shall be discharued from the ser- 
 vice, to which he was thus held in the state iVom which 
 he tlt\l. but shall he (\c\i\ch\\ up. o\\ claim o[ lUc party 
 \o whom the ser\ ict> may he iluc. U restrains tlu> ope- 
 
 (1) CommonirealtK v. .;»..«. 18 Pick: 220. wh.-.v this vi.MN i, ». t (.nth with cW^r- 
 nrss Hu«t foi>('o. 
 
100 FOUR rONSTITl'TIONAI, CLAISES OF COMPACT. 
 
 ration of stale laws in a particular class of cases, and 
 it 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 tlie natural, if not 
 necessary, inference from its terms, seems to be that its 
 execution, like that of other compacts, is to he left 
 to the j)arties to it. 
 
 Four similar clauses stand, in juxtaposition, in one 
 article of the constitution. The first stipulates that full 
 faith shall be pjiven in each state, to the public records 
 and judicial proceeding's of every other state: the sec- 
 ond, that the citizens of each state shall enjoy the 
 immunities of citizens, in the several states: the third. 
 that persons, charged with crime in any state and fugi- 
 tive from justice, shall, if found in any other state, be 
 delivei'ed up, on demand of the executive authorities of the 
 state from which they fled: the fourth, is the clause under 
 consideration. There are clauses in other articles which 
 prohibit the exercise of powers by the states: but there 
 are no others, I believe, in the constitution, as originally 
 adopted, intended to secure positive rights to the citi- 
 zens of each state in all the states. This circumstance 
 is entitled to weight in determining the character of 
 these provisions; and, it certainly points to the conclu- 
 sion, that they are in the nature of treaty covenants, 
 provision for the execution of which is to be made by 
 the legislation of the parties. This conclusion is, 
 indeed, excluded as to the first of them, by an express 
 provision that C(Migress may legislate: but the omission 
 of a similar provision in connection with the others 
 mightily confirms my position as to them. W liy make 
 the i)rovision as to the first clause, and omit it as to the 
 other three? It must have been floiie delib( ratelv and 
 
FOl'R CONSTITUTIONAL CLAUSES OF COMPACT. 1 1) I 
 
 of purpose. Why do it, unless the convention (fcsi'o-ncd 
 that Con<;ress might legislate in reference to records, hut 
 }wf in reference to the rights stipulated for in the other 
 clauses? And is not the reason for the distinction plain? 
 Would not the convention naturally give power to pre- 
 scrihe the proof and elVect of records, which could not 
 affect the personal liberty of the citizens? — while they 
 would scrupulously" abstain from giving any such jiower 
 in regard to the subjects of the other clauses, because 
 its exercise would necessarily interfere with the great 
 first right and duty of the State Governments to protect 
 the rightful claims, to personal liberty and security, of all 
 persons within their several jurisdictions. 
 
 Another circumstance deserves to be seriously consid- 
 ered. All the provisions I have just enumerated, were 
 taken, with modifications, from instruments in which they 
 stood, without question, as clauses of compact, and noth- 
 ing else. The provisions in relation to records, to immu- 
 nities, and to fugitives from justice, were taken from the 
 Articles of Confederation.' The provision in relation to 
 fugitives from service, was taken from the Ordinance of 
 1787." What evidence is there that the Convention, 
 when it transferred these clauses from the Articles and 
 the Ordinance into tiie Constitution, had any intention to 
 change their nature. Standing where they did, they 
 conferred no power on the general government; what 
 reason is there for holding that they confer such power, 
 standing where they now do? The clause in relation 
 to records, as it stood in the articles, included no provis- 
 ion authorizing legislation by Congress The Conven- 
 tion, on transferring the clause to the constitution, appen- 
 
 (1) See Articles of Confederation, Art. 4, in 3 Ston/'s Laws, 2079. (2) See the 
 Ordinnncp, ^ Sfori/'s Laws, '2078. 
 
102 POWER TO LEGISLATE XOT CONFERRED BY GENERAL GRANT. 
 
 ded a provision authorizing such legislation; but they 
 appended no such provision to the other clauses. Ex- 
 pressio nnius. exdusio est altcrius. I see not how the 
 inference can be resisted, that it was not the intention 
 of the Convention to authorize legislation by Congress 
 on the subjects of the other clauses. 
 
 There is another, and wholly independent reason for 
 denying the constitutional competency of Congress to 
 legislate in regard to fugitives from service. The whole 
 legislative power of Congress is derived either from the 
 general grant in the eighth section of the first article of 
 the constitution, or from special provisions in relation to 
 particular subjects. We have already seen that there 
 is no special provision authorizing the legislation in c[ues- 
 tion : we must look for such authority, then, in the gen- 
 eral grant. That grant is in these words: "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 
 Lnited States, or any department, or officer thereof." — 
 It is quite certain that the clause, relating to fugitives 
 from service, vests no power in the national government 
 or any of its departments, or officers. How then can 
 the conclusion be avoided, that Congress has no power 
 to legislate on this subject? 
 
 It is urged in the opinion delivered by Mr. Justice 
 Story, that this is too narrow a view of the power ol 
 Congress; and various examples are given of legislation 
 by that body, in cases where no legislative power has 
 been directly conferred upon it. But it will be found, I 
 think, that every example fails to sustain the view ot 
 the constitution, in support oi \\\\\c\\ it is adduced. — 
 Acts of apportionment, acts to carry treaties into effect. 
 
PRIGG V. PEVXSTLTAyiA, EXAMINED. 103 
 
 and acis to secure the privileges (rf members of Congress, 
 acts to suspend the writ of habeas corpus. — all come 
 under the head of laws, necessaiy and proper for carrr- 
 ing into execution, powers vested in the government, or 
 its departments, or officers. Nor is it going too tar to 
 sav. that where a duty is enjoined upon the government, 
 or its departments, ot its officers. Congress may. by leg- 
 islation, provide Iot its performance. Where the consti- 
 tution enjoins a duty, it is a necessary inference that it 
 gives power to perform iL But the difficulty is. that the 
 fugitive servant clause does not purport to ccmler a pow- 
 er, or enjoin a duty, on the general government, or any 
 of its departments, ot officers. 
 
 The opinicffl. indeed, goes farther, and maintains mat 
 Congress may provide for the allowance and execution of 
 of the writ of habeas corpus, when not suspended, and gen- 
 erally, that where a right is expressly given, or a duty ex- 
 pressly enjomed by the constittrcioo. Congress may legis- 
 late for the protection of the right or enforcement of the 
 duty.^ Upon no ground, narrower than this, can the right 
 of C<«igress to legislate for the reclamation of escaping 
 servants be maintained. Bui the powers of Congress 
 have not hitherto been supposed to be so extensive. — 
 If they are. they certainly warrant the legislation in 
 question, and much more. Congress may, in the exer- 
 cise of these powers, nullify any state legislation which 
 the constituucw forbids. It may. and should, imder the 
 clause which secures to the citizens of such state the 
 immunities of citizens of all the states, enforce, in Sooth 
 Carolina and Louisiana, the rights of the negio chizeos 
 of Massachusens, and the quadrooo citizens of Ohio. 
 
104 CONTEMPORARY CONSTRUCTION, WHAT WEIGHT DUE TO IT. 
 
 It may, also, and should, under the clause which forbid, 
 privation of liberty, without due process of law, provide 
 for the abohtion of slavery throughout the United States. 
 If the premises, furnished by the opinion of Mr. Justice 
 Story, are valid, these, certainly, are legitimate inferences. 
 The doctrine, that, in all cases, where the constitution 
 secures rights to states or individuals. Congress has pow- 
 er to legislate for the protection and enforcement of those 
 rights is original, I think, in that opinion. In view of 
 the consequences which must spring from it, it seems 
 hardly possible that it can be sustained. 
 
 It is insisted, however, that great weight is due to- 
 contemporary construction ; and that the exercise of the 
 power of legislation by Congress, in the enactment of the 
 law in question, should be received as strong evidence 
 of the constitutional right to legislate. But when it is 
 considered that this act of Congress is plainly unconsti- 
 tutional in some of its provisions; and that, before 
 its enactment, all, or nearly all the states, — whose 
 practical exposition of their own powers carries equal 
 authority with a similar practical exposition by Con- 
 gress, — had legislated in reference to fugitives from jus- 
 tice or fugitives from service, and that the whole 
 of this legislation must be swept from their statute 
 books, if the act be held constitutional ; I cannot think 
 that the mere claim and exercise of power by Con- 
 gress, in derogation of a similar claim and exercise by 
 every state Legislature, can have much influence upon 
 the determination of the question at issue. Is it not as 
 probable that Congress has mistaken the extent of their 
 powers, as it is that the state Legislatures mistook the 
 extent of theirs? Congress, certainly, without employ- 
 
INFERENCE FROM NATURE OF PROVISION, WHAT. 105 
 
 ing state authorities, cannot readily execute these pow- 
 ers ; and it cannot, constitutionally, impose duties on state 
 officers. This objection applies to the provision, in re- 
 gard to fugitives from justice, as much as to that in 
 regard to fugitives from service. The former undertakes, 
 indeed, to impose duties on the Governors of States, and 
 if it is constitutional, all state legislation on the 
 same subject is unconstitutional. But how can they be 
 enforced? Can this Court issue its mandamus to a 
 State Executive, and compel the dehvery of a fugitive? 
 
 It is claimed, further, that this power of Congress has 
 been sanctioned by judicial decisions. Opinion and 
 authority, on this subject, were nearly balanced, at the 
 time of the decision in the Prigg case. That decision, 
 so long as it shall stand, settles the question, at least for 
 this court, in favor of the power; but if the considerations, 
 urged in this argument, shall prevail, the honored author- 
 ity of this tribunal will be placed in the opposite scale. 
 
 It is said, finally, that the nature of the provision fur- 
 nishes solid reasons for the conclusion, that it could not 
 have been the intention of its framers to entrust its exe- 
 cution to state authorities. This is dangerous ground 
 on which to build a construction of the constitution, in 
 disregard of the plain import of its terms. It may be 
 well met by a direct negative, and by the assertion that 
 the nature of the provision proves, that, neither the Con- 
 vention, which formed, nor the People, who adopted the 
 Constitution, could have intended to entrust to Congress 
 any legislative power on the subject. Let it be sup- 
 posed that when the clause was under discussion, it had 
 been proposed to annex a provision in these words; "and 
 Congress shall have power to appoint officers, and pro- 
 vide by law, for the arresting and delivering up of per- 
 
106 SrAlES ALONE COMPETENT TO LEGISLATE. 
 
 sons escaping, and to provide, also, for the punishment 
 of all interference with the right herein secured, by har- 
 boring, or otherwise:" Can any man beUeve that such 
 a clause would have received the assent of the Conven- 
 tion^ or, that, a constitution whh such a clause m it, 
 could have obtained the ratification of the States? It 
 must be remembered that the States existed before the 
 Constitution, and that the fundamental law of each assert- 
 ed and guarantied the absolute, inherent and mahenable 
 rights of all the inhabitants or citizens: and it can 
 hardly be supposed that any state, especially any non- 
 slaveholding state, would have agreed to a constitution 
 which would withdraw, from any of these rights, the am- 
 ple shield of the fundamental law, and leave them ex- 
 posed to the almost unlimited discretion of Congress, 
 and of officers appointed by Congress? If they could, 
 they must have strangely forgotten the great principles 
 which hallowed their recent stiiiggle. 
 
 Am I mistaken, then, in thinking that the whole argu- 
 ment establishes the proposition, that the power to legis- 
 late, in reference to escaping servants, is "a power not 
 deleo-ated to the United States by the Constitution, nor 
 prohibited by it to the states, and is, therefore, reserved 
 to the states respectively, or, to the people?" 
 
 Much yet presses for utterance: but I have already 
 trespassed too far on the patience of the court. 
 
 I have presented, defectively, doubtless, and, perhaps, 
 unsuccessfully, but honestly, and with the best effort of 
 mv humble abilitv, the great principles, legal and consti- 
 tutional, which, in my judgment, govern this case: and 
 now, with a perfect assurance that all I have urged will 
 receive from your honors a full, patient, and mdulgent 
 consideration, I leave the controversy in your hands. 
 
CONCLUSION. 107 
 
 It is the chief glory of Courts of Justice, tliat they are 
 regarded as the safest sanctuaries of Human Freedorq. 
 Mg.y such ever be the honorable distinction of this court ! 
 
 It is a maxiin of the connmon law that he who will 
 not favor liberty, shall be held accursed. " Execrandus^ 
 qui non favet libertati ! " The courts of England, ever 
 presuming, in obedience to this maxim, in favor of free- 
 dom, extinguished villeinage, and established an impreg- 
 nable barrier against the introduction of a new slavery. 
 May I not trust that the favor, shown to Liberty by the 
 courts of the Chief Monarchy of Europe, will not be 
 allowed to surpass that which Liberty will receive, from 
 the courts of the Chief Republic of America? 
 
 I am aware that this court will administer the law as 
 it is written in the Constitution: but may I not confidently 
 expect that you will not, willingly, allow any construc- 
 tion of that honored instrument, which will bring its pro- 
 visions into conflict with that other Constitution, which, 
 rising, in sublime majesty, over all human enactments, — 
 antedating them all, surviving them all, — finds its "seat 
 in the bosom of God," and utters its "voice," as "the 
 harmony of the world?" 
 
 Upon questions, — such as are some of those involved 
 in this case, — which partake largely of a moral and po- 
 litical nature, the judgment, even of this Court, cannot 
 be regarded as altogether final. The decision, to be 
 made here, must, necessarily, be rejudged at the tribunal 
 of public opinion — the opinion, not of the American 
 People only, but of the Civilized World. At home, as 
 is well known, a growing disaffection to the Constitu- 
 tion prevails, founded upon its supposed allowance and 
 support of Human Slavery: abroad, the national charac- 
 
108 CONCLUSION. 
 
 hope, and, — I trust it may not be deemed too serious to 
 add, — I most earnestly pray, that the judgment of your 
 honors in this case, may commend itself to the reason 
 and conscience of Mankind ; that it may rescue the Con- 
 stitution from the undeserved opprobrium of lending its 
 sanction to the idea that there may be property in men ; 
 that it may gather around that venerable charter of 
 Repubhcan Government the renewed affection and con- 
 fidence of a generous People: and that it may win for 
 American Institutions the warm admiration and profound 
 homage of all, who, everywhere, love Liberty and revere 
 Justice. 
 
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