Prigg v. Pennsylvania/Concurrence McLean
|Prigg v. Pennsylvania by
As this case involves questions deeply interesting, if not vital, to the permanency of the Union of these states; and as I differ on one point from the opinion of the court, I deem it proper to state my own views on the subject.
The plaintiff, Edward Prigg, was indicted under the first section of an act of Pennsylvania, entitled 'an act to give effect to the provisions of the constitution of the United States, relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping.' It provides, 'if any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence seduce, or cause to be seduced, or shall attempt to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, to any other place or places whatsoever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or sevant for life, or for any term whatsoever; every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of felony, and shall be fined in a sum not less than five hundred nor more than one thousand dollars, and shall be sentenced to imprisonment and hard labor not less than seven nor more than twenty-one years.'
The plaintiff, being a citizen of Maryland, with others, took Margaret Morgan, a colored woman, and a slave, by force and violence, without the certificate required by the act of congress, from the state of Pennsylvania, and brought her to the state of Maryland. By an amicable arrangement between the two states, judgment was entered against the defendant, in the court where the indictment was found; and on the cause being removed to the supreme court of the state, that judgment, pro forma, was affirmed. And the case is now here for our examination and decision.
The last clause of the second section of the fourth article of the constitution of the United States, declares, that 'No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due.' This clause of the constitution is now, for the first time, brought before this court for consideration.
That the constitution was adopted in a spirit of compromise, is matter of history. And all experience shows, that to attain the great objects of this fundamental law, it must be construed and enforced in a spirit of enlightened forbearance and justice. Without adverting to other conflicting views and interests of the states represented in the general convention, the subject of slavery was then, as it is now, a most delicate and absorbing consideration. In some of the states, it was considered an evil, and a strong opposition to it, in all its forms, was felt and expressed. In others, it was viewed as a cherished right, incorporated into the social compact, and sacredly guarded by law. Opinions so conflicting, and which so deeply pervaded the elements of society, could be brought to a reconciled action only by an exercise of exalted patriotism. Fortunately for the country, this patriotism was not wanting in the convention and in the states. The danger of discord and ruin was seen, and felt and acknowledged; and this led to the formation of the confederacy. The constitution, as it is, cannot be said to have embodied in all its parts, the peculiar views of any great section of the Union; but it was adopted by a wise and far-reaching conviction, that it was the best which, under the circumstances, could be devised; and that its imperfections would be lost sight of, if not forgotten, in the national prosperity and glory which it would secure.
A law is better understood by a knowledge of the evils which led to its adoption; and this applies most strongly to a fundamental law. At an early period of our history, slavery existed in all the colonies; and fugitives from labor were claimed and delivered up, under a spirit of comity or conventional law among the colonies. The articles of confederation contained no provision on the subject, and there can be no doubt, that the provision introduced into the constitution was the result of experience and manifest necessity. A matter so delicate, important and exciting, was very properly introduced into the organic law.
Does the provision in regard to the reclamation of fugitive slaves, vest the power exclusively in the federal government? This must be determined from the language of the constitution, and the nature of the power. The language of the provision is general; it covers the whole ground, not in detail, but in principle. The states are inhibited from passing 'any law or regulation which shall discharge a fugitive slave from the service of his master;' and a positive duty is enjoined on them to deliver him up, 'on claim of the party to whom his service may be due.' The nature of the power shows that it must be exclusive. It was designed to protect the rights of the master, and against whom? Not against the state, nor the people of the state in which he resides; but against the people and the legislative action of other states where the fugitive from labor might be found. Under the confederation, the master had no legal means of enforcing his rights, in a state opposed to slavery. A disregard of rights thus asserted was deeply felt in the south; it produced great excitement, and would have led to results destructive of the Union. To avoid this, the constitutional guarantee was essential. The necessity for this provision was found in the views and feelings of the people of the states opposed to slavery; and who, under such an influence, could not be expected favorably to regard the rights of the master. Now, by whom is this paramount law to be executed?
It is contended, that the power to execute it rests with the states. The law was designed to protect the rights of the slave-holder against the states opposed to those rights; and yet, by this argument, the effective power is in the hands of those on whom it is to operate. This would produce a strange anomaly in the history of legislation; it would show an inexperience and folly in the venerable framers of the constitution, from which, of all public bodies that ever assembled, they were, perhaps, most exempt. The clause of the constitution under consideration declares that no fugitive from labor shall be discharged from such labor, by any law or regulation of the state into which he may have fled. Is the state to judge of this? Is it left for the state to determine what effect shall be given to this and other parts of the provision? This power is not susceptible of division; it is a part of the fundamental law, and pervades the Union; the rule of action which it prescribes was intended to be the same in all the states. This is essential to the attainment of the objects of the law; if the effect of it depended, in any degree, upon the construction of a state, by legislation or otherwise, its spirit, if not its letter, would be disregarded. This would not proceed from any settled determination in any state to violate the fundamental rule, but from habits and modes of reasoning on the subject; such is the diversity of human judgment, that opposite conclusions, equally honest, are often drawn from the same premises. It is, therefore, essential to the uniform efficacy of his constitutional provision, that it should be considered exclusively a federal power. It is, in its nature, as much so as the power to regulate commerce, or that of foreign intercourse.
To give full effect to this provision, was legislation necessary? Congress, by the passage of the act of 1793, legislated on the subject, and this shows how this provision was construed, shortly after its adoption; and the reasons which were deliberately considered, and which led to the passage of the act, show clearly that it was necessary. These reasons will be more particularly referred to under another head of the argument. But looking only at the constitution, the propriety, if not the necessity, of legislation is seen. The constitution provides that the fugitive from labor shall be delivered up, on claim being made by the person entitled to such labor; but it is silent as to how and on whom this claim shall be made; the act of congress provides for this defect and uncertainty, by establishing the mode of procedure.
It is contended, that the power to legislate on this subject is concurrently in the states and federal government; that the act of the latter are paramount, but the acts of the former must be regarded as of authority, until abrogated by the federal power. How a power exercised by one sovereignty can be called concurrent, which may be abrogated by another, I cannot comprehend; a concurrent power, from its nature, I had supposed must be equal. If the federal government, by legislating on the subject, annuls all state legislation on the same subject, it must follow, that the power is in the federal government and not in the state. Taxation is a power common to a state and the general government, and it is exercised by each, independently of the other; and this must be the character of all concurrent powers.
It is said, that a power may be vested in the federal government which remains dormant, and that in such case a state may legislate on the subject. In the case supposed, whence does the legislature derive its power? Is it derived from the constitution of the state, or the constitution of the United States? If the power is given by the state constitution, it must follow, that it may be exercised independently of the federal power; for it is presumed, no one will sanction the doctrine, that congress, by legislation, may abridge the constitutional power of a state. How can the power of the state be derived from the federal constitution? Is it assumed, on the ground, that congress, having the power, have failed to exercise it? Where is such an assumption to end? May it not be applied with equal force and propriety to the whole ground of federal legislation, excepting only the powers inhibited to the states? Congress have not legislated upon a certain subject, but this does not show that they may not have duly considered it; or they may have acted without exhausting the power. Now, in my judgment, it is illogical and unconstitutional, to hold, that in either of these cases, a state may legislate.
Is this a vagrant power of the state, like a floating land-warrant to be located on the first vacant spot that shall be found? May a state occupy a fragment of federal power which has not been exercised, and like a tenant at will, continue to occupy it until it shall have notice to quit? No such power is derived by implication from the federal constitution. It defines the powers of the general government, and imposes certain restrictions and duties on the states; but beyond this, it in no degree affects the powers of the states. The powers which belong to a state are exercised independently; in its sphere of sovereignty, it stands on an equality with the federal government, and is not subject to its control. It would be as dangerous, as humiliating, to the rights of a state, to hold, that its legislative powers were exercised, to any extent and under any circumstances, subject to the paramount action of congress; such a doctrine would lead to serious and dangerous conflicts of power.
The act of 1793 seems to cover the whole constitutional ground. The third section provides, 'that when a person held to labor in any state or territory of the United States, under the laws thereof, shall escape into any other of the said states or territories, the person to whom such labor or service may be due, his agent or attorney, is empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the state, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof, to the satisfaction of such judge or magistrate, either by oral testimony or affidavit, &c., 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 sufficient warrant for removing said fugitive to the state from which he or she fled.' The fourth section imposes a penalty on any person who shall obstruct or hinder such claimant, his agent or attorney, &c., or shall rescue such fugitive, when so arrested, &c.
It seems to be taken as a conceded point, in the argument, that congress had no power to impose duties on state officers, as provided in the above act. As a general principle, this is true; but does not the case under consideration form an exception? Congress can no more regulate the jurisdiction of the state tribunals, than a state can define the judicial power of the Union. The officers of each government are responsible only to the respective authorities under which they are commissioned. But do not the clauses in the constitution in regard to fugitives from labor, and from justice, give congress a power over state officers, on these subjects? The power in both the cases is admitted or proved to be exclusively in the federal government. The clause in the constitution preceding the one in relation to fugitives from labor, declares that, 'a person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.' In the first section of the act of 1793, congress have provided, that on demand being made as above, 'it shall be the duty of the executive authority, to cause the person demanded to be arrested, &c. The constitutionality of this law, it is believed, has never been questioned. It has been obeyed by the governors of states, who have uniformly acknowledged its obligation. To some demands, surrenders have not been made; but the refusals have, in no instance, been on the ground that the constitution and act of congress were of no binding force. Other reasons have been assigned.
Now, if congress may, by legislation, require this duty to be performed by the highest state officer, may they not, on the same principle, require appropriate duties in regard to the surrender of fugitives from labor, by other state officers? Over these subjects, the constitutional power is the same. In both cases, the act of 1793 defines on what evidence the delivery shall be made; this was necessary, as the constitution is silent on the subject. The act provides, that on claim being made, of a fugitive from labor, 'it shall be the duty of such judge or magistrate, to give a certificate that the person claimed owes services to the claimant.' The constitution requires 'that such person shall be delivered up, on claim of the party to whom the service is due.' Here is a positive duty imposed; and congress have said in what mode this duty shall be performed. Had they not power to do so? If the constitution was designed, in this respect, to require, not a negative, but a positive, duty on the state and the people of the state where the fugitive from labor may be found (of which, it would seem, there can be no doubt), it must be equally clear, that congress may prescribe in what manner the claim and surrender shall be made. I am, therefore, brought to the conclusion, that although, as a general principle, congress cannot impose duties on state officers, yet in the cases of fugitives from labor and from justice, they have the power to do so.
In the case of Martin's Lessee v. Hunter, 1 Wheat. 304, this court say, 'The language of the constitution is imperative on the states as to the performance of many duties. It is imperative on the state legislatures to make laws prescribing the time, place and manner of holding elections for senators and representatives, and for electors of president and vice-president. And in these, as well as in other cases, congress have a right to revise, amend or supersede the laws which may be passed by the state legislatures.' Now, I do not insist on the exercise of the federal power to the extent as here laid down. I go no further than to say, that where the constitution imposes a positive duty on a state or its officers to surrender fugitives, congress may prescribe the mode of proof, and the duty of the state officers. This power may be resisted by a state, and there is no means of coercing it. In this view, the power may be considered an important one. So, the supreme court of a state may refuse to certify its record on a writ of error to the supreme court of the Union, under the 25th section of the judiciary act. But resistance to a constitutional authority by any of the state functionaries, should not be anticipated; and if made, the federal government may rely upon its own agency in giving effect to the laws.
I come now to a most delicate and important inquiry in this case, and that is, whether the claimant of a fugitive from labor may seize and remove him by force, out of the state in which he may be found, in defiance of its laws. I refer not to laws which are in conflict with the constitution, or the act of 1793. Such state laws, I have already said, are void. But I have reference to those laws which regulate the police of the state, maintain the peace of its citizens, and preserve its territory and jurisdiction from acts of violence.
About the time of the adoption of the constitution, a colored man was seized by several persons in the state of Pennsylvania, and forcibly removed out of it, with the intent, as charged, to enslave him. This act was then, as it is now, a criminal offence by the law of Pennsylvania. Certain persons were indicted for this offence, and in the year 1791, the governor of Pennsylvania demanded of the governor of Virginia, the persons indicted, as fugitives from justice. The governor of Virginia submitted the case to the attorney-general of that state, who decided, that the offence charged in the indictment was not such a crime as, under the constitution, required a surrender. He also held, 'that control over the persons charged ought not to be acquired by any force not specified and delegated by positive law.' The governor of Virginia refused to arrest the defendants, and deliver them to the authorities of Pennsylvania. The correspondence between the governors, and the opinion of the attorney-general of Virginia, with other papers relating to the case, were transmitted to the president of the United States, who laid them before congress. And there can be no doubt, that this correspondence, and the forcible removal of the colored person which gave rise to it, led to the passage of the act of 1793. It is not unworthy of remark, that a controversy on this subject should first have arisen, after the adoption of the constitution, in Pennsylvania; and that after a lapse of more than half a century, a controversy involving a similar act of violence should be brought before this court, for the first time, from the same state.
Both the constitution and the act of 1793, require the fugitive from labor to be delivered up, on claim being made, by the party, or his agent, to whom the service is due. Not that a suit should be regularly instituted; the proceeding authorized by the law is summary and informal. The fugitive is seized by the claimant, and taken before a judge or magistrate within the state, and on proof, parol or written, that he owes labor to the claimant, it is made the duty of the judge or magistrate, to give the certificate, which authorizes the removal of the fugitive to the state from whence he absconded. The counsel inquire, of whom the claim shall be made? And they represent that the fugitive, being at large in the state, is in the custody of no one, nor under the protection of the state; so that the claim cannot be made, and consequently, that the claimant may seize the fugitive and remove him out of the state. A perusal of the act of congress obviates this difficulty, and the consequence which is represented as growing out of it; the act is framed to meet the supposed case. The fugitive is presumed to be at large, for the claimant is authorized to seize him; after seizure, he is in custody; before it, he was not; and the claimant is required to take him before a judicial officer of the state; and it is before such officer his claim is to be made. To suppose, that the claim is not to be made, and indeed, cannot be, unless the fugitive be in the custody or possession of some public officer or individual, is to disregard the letter and spirit of the act of 1793. There is no act in the statute book more precise in its language; and, as it would seem, less liable to misconstruction. In my judgment, there is not the least foundation in the act for the right asserted in the argument, to take the fugitive by force and remove him out of the state.
Such a proceeding can receive no sanction under the act, for it is in express violation of it. The claimant having seized the fugitive, is required by the act, to take him before a federal judge within the state, or a state magistrate within the county, city or town corporate, within which the seizure was made. Now, can there be any pretence, that after the seizure under the statute, the claimant may disregard the other express provision of it, by taking the fugitive, without claim, out of the state. But it is said, the master may seize his slave wherever he finds him, if by doing so, he does not violate the public peace; that the relation of master and slave is not affected by the laws of the state, to which the slave may have fled, and where he is found. If the master has a right to seize and remove the slave, without claim, he can commit no breach of the peace, by using all the force necessary to accomplish his object.
It is admitted, that the rights of the master, so far at regards the services of the slave, are not impaired by this change; but the mode of asserting them, in my opinion, is essentially modified. In the state where the service is due, the master needs no other law than the law of force, to control the action of the slave. But can this law be applied by the master, in a state which makes the act unlawful? Can the master seize his slave and remove him out of the state, in disregard of its laws, as he might take his horse which is running at large? This ground is taken in the argument. Is there no difference in principle in these cases? The slave, as a sensible and human being, is subject to the local authority into whatsoever jurisdiction he may go; he is answerable under the laws for his acts, and he may claim their protection; the state may protect him against all the world except the claim of his master. Should any one commit lawless violence on the slave, the offender may unquestionably be punished; and should the slave commit murder, he may be detained and punished for it by the state, in disregard of the claim of the master. Being within the jurisdiction of a state, a slave bears a very different relation to it from that of mere property.
In a state where slavery is allowed, every colored person is presumed to be a slave; and on the same principle, in a non-slave-holding state, every person is presumed to be free, without regard to color. On this principle, the states, both slave-holding and non-slave-holding, legislate. The latter may prohibit, as Pennsylvania has done, under a certain penalty, the forcible removal of a colored person out of the state. Is such law in conflict with the act of 1793? The act of 1793 authorizes a forcible seizure of the slave by the master, not to take him out of the state, but to take him before some judicial officer within it. The law of Pennsylvania punishes a forcible removal of a colored person out of the state. Now, here is no conflict between the law of the state and the law of congress; the execution of neither law can, by any just interpretation, in my opinion, interfere with the execution of the other; the laws in this respect stand in harmony with each other.
It is very clear, that no power to seize and forcibly remove the slave, without claim, is given by the act of cognress. Can it be exercised under the constitution? Congress have legislated on the constitutional power, and have directed the mode in which it shall be executed. The act, it is admitted, covers the whole ground; and that it is constitutional, there seems to be no reason to doubt. Now, under such circumstances, can the provisions of the act be disregarded, and an assumed power set up under the constitution? This is believed to be wholly inadmissible by any known rule of construction. The terms of the constitution are general, and like many other powers in that instrument, require legislation. In the language of this court, in Martin v. Hunter, 1 Wheat. 304, 'the powers of the constitution are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.' This congress have done by the act of 1793. It gives a summary and effectual mode of redress to the master, and is he not bound to pursue it? It is the legislative construction of the constitution; and is it not a most authoritative construction? I was not prepared to hear the counsel contend, that notwithstanding this exposition of the constitution, and ample remedy provided in the act, the master might disregard the act and set up his right under the constitution. And having taken this step, it was easy to take another, and say, that this right may be asserted by a forcible scizure and removal of the fugitive. This would be a most singular constitutional provision. It would extend the remedy by recaption, into another sovereignty, which is sanctioned neither by the common law nor the law of nations. If the master may lawfully seize and remove the fugitive out of the state where he may be found, without an exhibition of his claim, he may lawfully resist any force, physical or legal, which the state, or the citizens of the state, may interpose. To hold that he must exhibit his claim in case of resistance, is to abandon the ground assumed. He is engaged, it is said, in the lawful prosecution of a constitutional right; all resistance, then, by whomsoever made, or in whatsoever form, must be illegal. Under such circumstances, the master needs no proof of his claim, though he might stand in need of additional physical power; having appealed to his power, he has only to collect a sufficient force to put down all resistance and attain his object; having done this, he not only stands acquitted and justified; but he has recourse for any injury he may have received in overcoming the resistance.
If this be a constitutional remedy, it may not always be a peaceful one. But if it be a rightful remedy, that it may be carried to this extent, no one can deny. And if it may be exercised, without claim of right, why may it not be resorted to, after the unfavorable decision of the judge or magistrate? This would limit the necessity of the exhibition of proof by the master to the single case where the slave was in the actual custody of some public officer. How can this be the true construction of the constitution? That such a procedure is not sanctioned by the act of 1793 has been shown; that an act was passed expressly to guard against acts of force and violence.
I cannot perceive how any one can doubt that the remedy given in the constitution, if, indeed, it give any remedy, without legislation, was designed to be a peaceful one; a remedy sanctioned by judicial authority; a remedy guarded by the forms of law. But the inquiry is reiterated, is not the master entitled to his property? I answer, that he is. His right is guarantied by the constitution, and the most summary means for its enforcement is found in the act of congress; and neither the state nor its citizens can obstruct the prosecution of this right. The slave is found in a state where every man, black or white, is presumed to be free; and this state, to preserve the peace of its citizens, and its soil and jurisdiction from acts of violence, has prohibited the forcible abduction of persons of color. Does this law conflict with the constitution? It clearly does not, in its terms.
The conflict is supposed to arise out of the prohibition against the forcible removal of persons of color, generally, which may include fugitive slaves. Prima focie, it does not include slaves, as every man within the state is presumed to be free, and there is no provision in the act which embraces slaves. Its language clearly shows, that it was designed to protect free persons of color within the state. But it is admitted, there is no exception as to the forcible removal of slaves; and here the important and most delicate question arises between the power of the state, and the assumed but not sanctioned power of the federal government. No conflict can arise between the act of congress and this state law; the conflict can only arise between the forcible acts of the master and the law of the state. The master exhibits no proof of right to the services of the slave, but seizes him and is about to remove him by force. I speak only of the force exerted on the slave. The law of the state presumes him to be free, and prohibits his removal. Now, which shall give way, the master or the state? The law of the state does, in no case, discharge, in the language of the constitution, the slave from the service of his master. It is a most important police regulation. And if the master violate it, is he not amenable? The offence consists in the abduction of a person of color; and this is attempted to be justified, upon the simple ground that the slave is property. That aslave is property, must be admitted. The state law is not violated by the seizure of the slave by the master, for this is authorized by the act of congress; but by removing him out of the state by force, and without proof of right, which the act does not authorize. Now, is not this an act which a state may prohibit? The presumption, in a non-slave-holding state, is against the right of the master, and in favor of the freedom of the person he claims. This presumption may be rebutted, but until it is rebutted by the proof required in the act of 1793, and also, in my judgment, by the constitution, must not the law of the state be respected and obeyed?
The seizure which the master has a right to make under the act of congress, is for the purpose of taking the slave before an officer. His possession the subject for which it was made. The certificate of right to the service the subject for which it was made. The certificate of right to the service of the slave is undoubtedly for the protection of the master; but it authorizes the removal of the slave out of the state where he was found, to the state from whence he fled; and under the constitution, this authority is valid in all the states. The important point is, shall the presumption of right set up by the master, unsustained by any proof, or the presumption which arises from the laws and institutions of the state, prevail; this is the true issue. The sovereignty of the state is on one side, and the asserted interest of the master on the other; that interest is protected by the paramount law, and a special, a summary, and an effectual, mode of redress is given. But this mode is not pursued, and the remedy is taken into his own hands by the master.
The presumption of the state that the colored person is free, may be erroneous in fact; and if so, there can be no difficulty in proving it. But may not the assertion of the master be erroneous also; and if so, how is his act of force to be remedied? The colored person is taken and forcibly conveyed beyond the jurisdiction of the state. This force, not being authorized by the act of congress nor by the constitution, may be prohibited by the state. As the act covers the whole power in the constitution and carries out, by special enactments, its provisions, we are, in my judgment bound by the act. We can no more, under such circumstances administer a remedy under the constitution, in disregard of the act, than we can exercise a commercial or other power in disregard of an act of congress on the same subject. This view respects the rights of the master and the rights of the state; it neither jeopards nor retards the reclamation of the slave; it removes all state action prejudical to the rights of the master; and recognises in the state a power to guard and protect its own jurisdiction, and the peace of its citizen.
It appears, in the case under consideration, that the state magistrate before whom the fugitive was brought refused to act. In my judgment, he was bound to perform the duty required of him by a law paramount to any act, on the same subject, in his own state. But this refusal does not justify the subsequent action of the claimant; he should have taken the fugitive before a judge of the United States, two of whom resided within the state.
It may be doubted, whether the first section of the act of Pennsylvania under which the defendant was indicted, by a fair construction, applies to the case under consideration. The decision of the supreme court of that state was pro forma, and, of course, without examination. Indeed, I suppose, the case has been made up merely to bring the question before this court. My opinion, therefore, does not rest so much upon the particular law of Pennsylvania, as upon the inherent and sovereign power of a state, to protect its jurisdiction and the peace of its citizens, in any and every mode which its discretion shall dictate, which shall not conflict with a defined power of the federal goverdment.
THIS cause came on to be heard, on the transcript of the record from the supreme court of Pennsylvania, and was argued by counsel: On consideration whereof, it is the opinion of this court, that the act of the commonwealth of Pennsylvania, upon which the indictment in this case is founded, is repugnant to the constitution and laws of the United States, and therefore, void; and that the judgment of the supreme court of Pennsylvania upon the special verdict found in the case, ought to have been, that the said Edward Prigg was not guilty. It is, therefore, ordered and adjudged by this court, that the judgment of the said supreme court of Pennsylvania be and the same is hereby, reversed. And this court proceeding to render such judgment in the premises as the said supreme court of Pennsylvania ought to have rendered, do hereby order and adjudge that judgment upon the special verdict aforesaid be here entered, that the said Edward Prigg is not guilty in manner and form as is charged against him in the said indictment, and that he go thereof quit, without day; and that this cause be remanded to the supreme court of Pennsylvania with directions accordingly, so that such other proceeding may be had therein as to law and justice shall appertain.
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