Prigg v. Pennsylvania/Concurrence Thompson
I concur in the judgment given by the court in this case. But not being able to yield my assent to all the doctrines embraced in the opinion, I will very briefly state the grounds on which my judgment is placed.
The provision in the constitution upon which the present question arises is as follows: '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.' Art. 4, § 2. We know, historically, that this provision was the result of a compromise between the slave-holding and non-slave-holding states; and it is the indispensable duty of all to carry it faithfully into execution, according to its real object and intention.
This provision naturally divides itself into two distinct considerations. First, the right affirmed; and secondly, the mode and manner in which that right is to be asserted and carried into execution. The right is secured by the constitution, and requires no law to fortify or strengthen it. It affirms, in the most unequivocal manner, the right of the master to the service of his slave, according to the laws of the state under which he is so held. And it prohibits the states from discharging the slave from such service, by any law or regulation therein. The second branch of the provision, in my judgment, requires legislative regulations, pointing out the mode and manner in which the right is to be asserted. It contemplates the delivery of the person of the slave to the owner; and does not leave the owner to his ordinary remedy at law, to recover damages on a refusal to deliver up the property of the owner. Legislative provision, in this respect, is essential for the purpose of preserving peace and good order in the community. Such cases, in some parts of our country, are calculated to excite feelings which, if not restrained by law, might lead to riots and breaches of the peace. This legislation, I think, belongs more appropriately to congress than to the states, for the purpose of having the regulation uniform throughout the United States, as the transportation of the slave may be through several states; but there is nothing in the subject-matter that renders state legislation unfit. It is no objection to the right of the states to pass laws on the subject, that there is no power anywhere given to compel them to do it; neither is there to compel congress to pass any law on the subject; the legislation must be voluntary in both; and governed by a sense of duty. But I cannot concur in that part of the opinion of the court, which asserts that the power of legislation by congress is exclusive; and that no state can pass any law to carry into effect the constitutional provision on this subject, although congress had passed no law in relation to it. Congress, by the act of 1793, has legislated on the subject; and any state law in conflict with that, would be void, according to the provisions of the constitution, which declares, that the laws of the United States, which shall be made in pursuance of the constitution, shall be the supreme law of the land, anything in the laws of any state to the contrary notwithstanding. This provision meets the case of a conflict between congressional and state legislation; and implies, that such cases may exist, growing out of the concurrent powers of the two governments. The provision in the constitution, under consideration, is one under which such conflicting legislation may arise; and harmony is produced by making the state law yield to that of the United States. But to assert that the states cannot legislate on the subject at all, in the absence of all legislation by congress, is, in my judgment, not warranted by any fair and reasonable construction of the provision. There is certainly nothing in the terms used in this article, nor in the nature of the power to surrender the slave, that makes legislation by congress exclusive. And if, as seems to the admitted, legislation is necessary to carry into effect the object of the constitution, what becomes of the right, where there is no law on the subject? Should congress repeal the law of 1793, and pass no other law on the subject, I can entertain no doubt, that state legislation, for the purpose of restoring the slave to his master, and faithfully to carry into execution the provision of the constitution, would be valid. I can see nothing in the provision itself, nor discover any principle of sound public policy, upon which such a law would be declared unconstitutional and void. The constitution protects the master in the right to the possession and service of his slave, and of course, makes void all state legistion impairing that right; but does not make void state legislation in affirmance of the right. I forbear enlarging upon this question, but have barely stated the general grounds upon which my opinion rests; and principally to guard against the conclusion, that, by my silence, I assent to the doctrine that all legislation on this subject is vested exclusively in congress; and that all state legislation, in the absence of any law of congress, is unconstitutional and void.
BALDWIN, Justice, concurred with the court in reversing the judgment of the supreme court of Pennsylvania, on the ground, that the act of the legislature was unconstitutional; inasmuch as the slavery of the person removed was admitted, the removal could not be kidnapping. But he dissented from the principles laid down by the court as the grounds of their opinion.