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Prigg v. Pennsylvania/Concurrence Daniel

DANIEL, Justice.

Concurring entirely, as I do, with the majority of the court, in the conclusions they have reached relative to the effect and validity of the statute of Pennsylvania now under review, it is with unfeigned regret that I am constrained to dissent from some of the principles and reasonings which that majority, in passing to our common conclusions, have believed themselves called on to affirm.

In judicial proceedings, generally, that has been deemed a safe and prudent rule of action, which involves no rights or questions not necessary to be considered; but leaves these for adjudication where and when only they shall be presented directly and unavoidably, and when surrounded with every circumstance which can best illustrate their character. If, in ordinary questions of private interest, this rule is recommended by considerations of prudence, and accuracy and justice; it is surely much more to be observed, when the subject to which it is applicable is the great fundamental law of the confederacy; every clause and article of which affects the polity and the acts of states. Guided by the rule just mentioned, it seems to me, that the regular action of the court in this case is limited to an examination of the Pennsylvania statute, to a comparison of its provisions with the third clause of the fourth article of the constitution, and with the act of congress of 1793, with which the law of Pennsylvania is alleged to be in conflict; and that to accomplish these purposes, a general definition or contrast of the powers of the state and federal governments, was neither requisite nor proper. The majority of my brethren, in the conscientious discharge of their duty, have thought themselves bound to pursue a different course; and it is in their definition and distribution of state and federal powers, and in the modes and times they have assigned for the exercising those powers, that I find myself compelled to differ with them.

That portion of the constitution which provides for the recovery of fugitive shares, is the third clause of the second section of the fourth article; and 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 herein, 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.' The paramount authority of this clause in the constitution to guaranty to the owner the right of property in his slave, and the absolute nullity of any state power, directly or indirectly, openly or covertly, aimed to impair that right, or to obstruct its enjoyment, I admit, nay, insist upon, to the fullest extent. I contend, moreover, that the act of 1793, made in aid of this clause of the constitution and for its enforcement, so far as it conforms to the constitution, is the supreme law to the states; and cannot be contravened by them, without a violation of the constitution. But the majority of my brethren, proceeding beyond these positions, assume the ground, that the clause of the constitution above quoted, as an affirmative power granted by the constitution, is essentially an exclusive power in the federal government; and consequently, that any and every exercise of anthority by the states, at any time, though undeniably in aid of the guarantee thereby give, is absolutely null and void.

Whilst I am free to admit the powers which are exclusive in the federal government, some of them became so denominated by the express terms of the constitution; some, because they are prohibited to the states; and others, because their existence, and much more, their practical exertion by the two governments, would be repugnant, and would neutralize, if they did not conflict with and destroy, each other; I cannot regard the third clause of the fourth article as falling either within the definition or meaning of an exclusive power. Such a power, I consider as orginally and absolutely, and at all times incompatible with partition or association; it excludes everything but itself. There is a class of powers, originally vested in the states, which, by the theory of the federal government, have been transferred to the latter; powers which the constitution of itself does not execute, and which congress may or may not enforce, either in whole or in part, according to its views of policy or necessity; or as it may find them for the time beneficially executed or otherwise under the state authorities. These are not properly concurrent, but may be denominated dormant powers in the federal government; they may at any time be awakened into efficient action by congress, and from that time, so far as they are called into activity, will, of course, displace the powers of the states. But should they again be withdrawn or rendered dormant, or should their primitive exercise by the states never be interfered with by congress; could it be properly said, that because they potentially existed in congress, they were, therefore, denied to the states? The prosperity, the necessities, of the country, and the soundest rules of constitutional construction, appear to me, to present a decided negative to this inquiry. Nay! I am prepared to affirm, that even in instances wherein congress may have legislated, legislation by a state which is strictly ancillary, would not be unconstitutional or improper.

The interpretation for which I contend cannot be deemed a novelty in this court; but rests upon more than one of its decisions upon the constitutional action of state authorities. In the case of Sturges v. Crowninshield, which brought in question the right of the states to pass insolvent or bankrupt laws, Chief Justice MARSHALL holds the following doctrine (4 Wheat. 192-3): 'The counsel for the plaintiff contend, that the grant of this power to congress, without limitation, takes it entirely from the states. In support of this proposition, they argue, that every power given to congress is necessarily supreme; and if, from its nature, or from the words of the grant, it is apparently intended to be exclusive, it is as much so as if they were expressly forbidden to exercise it. These propositions have been enforced and illustrated by many arguments drawn from different parts of the constitution. That the power is both ulimited and supreme, is not questioned; that its is exclusive, is denied by the counsel for the defendant. In considering this question, it must be recollected, that previous to the formation of the new constitution, we were divided into independent states, united for some purposes, but in most respects sovereign. These states could exercise almost every legislative power; and amongst others, that of passing bankrupt laws. When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper, to define the powers retained by the states. These powers remain as they were before the adoption of the constitution, except so far as they may be abridged by that instrument. In some instances, as in making treaties, we find an express prohibition; and this shows the sense of the convention to have been, that the mere grant of a power to congress did not imply a prohibition on the states to the exercise of the same power.' Again, p. 198, 'it does not appear to be a violent construction of the constitution, and is certainly a convenient one, to consider the powrs of the states as existing over such cases as the laws of the Union do not reach. Be this as it may, the power of congress may be exercised or declined, as the wisdom of that body shall decide. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same powr by the states. It has been said, that congress has exercised this power; and by doing so, has extinguished the power of the states, which cannot be revived by repealing the law of congress. We do not think so. If the right of the states is not taken away by the mere grant of that power to congress, it cannot be extinguished; it can only be suspended, by enacting a general bankrupt law. The repeal of that, cannot, it is true, confer the power on the states; but it removes a disability to its exercise, which was created by the act of congress.

In the case of Houston v. Moore, 6 Wheat. 48, the following doctrine, was held by Mr. Justice STORY, and in accordance with the opinion of the court, in that case. 'The constitution containing a grant of powers, in many instances similar to those already existing in the state governments, and some of these being of vital importance also to state authority and state legislation, it is not to be admitted, that a mere grant of powers, in affirmative terms, to congress, does, per se, transfer an exclusive sovereignty in such subjects to the latter; on the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the states, except where the constitution has, in express terms, given an exclusive power to congress, or the exercise of a like power is prohibited to the states. The example of the first class is to be found in the exclusive legislation delegated to congress over places purchased by the consent of the legislature of the state in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a state to coin money or emit bills of credit; of the third class, as this court have already held, is the power to establish an uniform rule of naturalization; and the delegation of admiralty and maritime jurisdiction. In all other cases, not falling within the classes already mentioned, it seems unquestionable, that the states retain concurrent authority with congress, not only under the eleventh amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the states and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority; and the state laws, so far, and so far only, as such incompatibility exists, must necessarily yield. Such are the general principles by which my judgment is guided, in every investigation of constitutional points. They commend themselves by their intrinsic equity; and have been amply justified by the great men under whose guidence the constitution was framed, as wells as by the practice of the government of the Union. To desert them, would be to deliver ourselves over to endless doubts and difficulties; and probably, to hazard the existence of the constitution itself.'

In the case or the City of New York v. Miln, 11 Pet. 102, Mr. Justice BARBOUR, in the delivering the opinion of the court, lays down the following position (p. 137), as directly deducible from the decision in Gibbons v. Ogden, 7 Wheat. 204, and Brown v. State of Maryland, 12 Ibid. 419: 'Whilst a state is acting within the legitimate scope of its power, as to the end to be attained, it may use whatever means, being appropriate to that end, it may think fit; although they be the same, or so nearly the same as scarcely to be distinguished from those adopted by congress acting under a different power; subject only to this limitation, that in the event of collision, the law of the state must yield to the law of congress. The court must be understood, of course, as meaning that the law of congress is passed upon a subject within the sphere of its power.' In the same case, the following language is held by Mr. Justice THOMPSON (p. 145): 'In the leading cases upon this question, where the state law has been held to be constitutional, there has been an actual conflict between the legislation of congress and that of the states, upon the right drawn in question; and in all such cases, the law of congress is supreme. But in the case now before the court, no such conflict arises; congress has not legislated on this subject in any manner to affect the question.' And again (p. 146), it is said by the same judge: 'It is not necessary in this case to fix any limits upon the legislation of congress and of the states on this subject; or to say how far congress may, under the power to regulate commerce, control state legislation in this respect. It is enough to say, that whatever the power of congress may be, it has not been exercised so as in any manner to conflict with the state law; and if the mere grant of the power to congress does not necessarily imply a prohibition of the states to exercise the power, until congress assumes the power to exercise it, no objection on that ground can arise to this law.' Here, then, are recognitions, repeated and explicit, of the propriety, utility and regularity of state action, in reference to powers confessedly vested in the general government, so long as the latter remains passive, or shall embrace within its own action only a portion of its powers, and that portion not comprised in the proceedings of the state government; and so long as the states shall neither conflict with the measures of the federal government, nor contravene its policy. From these recognitions, it must follow, by necessary consequence, that powers vested in the federal government which are compatible with the modes of execution just adverted to, cannot be essentially and originally, nor practically, exclusive powers; for whatever is exclusive, utterly forbids, as has been previously observed, all partition or association. I hold, then, that the states can establish proceedings which are in their nature calculated to secure the rights of the slave-holder guarantied to him by the constitution; as I shall attempt to show, that those rights can never be so perfectly secured, as when the states shall, in good faith, exert their authority to assist in effectuating the guarantee given by the constitution. Fugitives from service, in attempting to flee either to the non-slave-holding states, or into the Canadas, must, in many instances, pass the intermediate states, before they can attain to the point they aim at.

If there is a power in the states to authorize and order their arrest and detention for delivery to their owners, not only will the probabilities of recovery be increased, by the performance of duties enjoined by law upon the citizens of those states, as well private persons as those who are officers of the law; but the incitements of interest, under the hope of reward, will, in a certain class of persons, powerfully co-operate to the same ends. But let it be declared, that the rights of arrest and detention, with a view of restoration to the owner, belong solely to the federal government, exclusive of the individual right of the owner to seize his property, and what are to be the consequences? In the first place, whenever the master, attempting to enforce his right of seizure under the constitution, shall meet with resistance, the inconsiderable number of federal officers in a state, and their frequent remoteness from the theatre of action, must, in numerous instances, at once defeat his right of property, and deprive him also of personal protection and security. By the removal of every incentive of interest in state officers, or individuals, and by the inculcation of a belief that any co-operation with the master becomes a violation of law, the most active and efficient auxiliary which he could possibly call to his aid is entirely neutralized. Again, suppose, that a fugitive from service should have fled to a state where slavery does not exist, and in which the prevalent feeling is hostile to that institution; there might, nevertheless, in such a community, be a disposition to yield something to an acknowledged constitutional right-something to national comity, too, in the preservation of that right; but let it once be proclaimed from this tribunal, that any concession by the states towards the maintenance of such a right, is a positive offence, the violation of a solemn duty, and I ask what pretext more plausible could be offered to those who are disposed to protect the fugitive, or to defeat the rights of the master? The constitution and the act of congress would thus be converted into instruments for the destruction of that which they were designed especially to protect. But it is said, that if the states can legislate at all upon the subject of fugitives from service, they may, under the guise of regulations for securing the master's right, enact laws which, in reality, impair or destroy them. This, like every other argument drawn from the possible abuse of power, is deemed neither fair nor logical. It is equally applicable to the exercise of power by the federal as by the state governments; and might be used in opposition to all power and all government, as it is undeniable, that there is no power and no government which is not susceptible of great abuses. But those who argue, from such possible or probable abuses, against all regulations by the states touching this matter, should dismiss their apprehensions, under the recollection that should those abuses be attempted, the corrective may be found, as it is now about to be applied to some extent, in the controlling constitutional authority of this court.

It has been said, that the states, in the exercise of their police powers, may arrest and imprison vagrants or fugitives who may endanger the peace and good order of society; and by that means contribute to the recovery by the master of his fugitive slave. It should be recollected, however, that the police power of a state has no natural affinity with her exterior relations, nor with those which she sustains to her sister states; but is confined to matters strictly belonging to her internal order and quiet. The arrest or confinement, or restoration of a fugitive, merely because he is such, falls not regularly within the objects of police regulations; for such a person may be obnoxious to no charge of violence or disorder; he may be merely passing through the state peaceably and quietly; or he may be under the care and countenance of some person affecting ownership over him, with the very view of facilitating his escape. Under such circumstances, he would not be a proper subject for the exertion of the police power; and if not to be challenged under a different power in the state, his escape would be inevitable, however strong might be the evidences of his being a fugitive. But let it be supposed, that either on account of some offence actually committed or threatened; or from some internal regulation forbidding the presence of such persons within a state, they may be deemed subjects for the exertion of the police power proper, to what end would the exercise of that power naturally lead? Fugitives might be arrested for punishment, or they might be expelled or deported from the state. Nothing beyond these could be legally accomplished; and thus the invocation of this police power, so far from securing the rights of the master, would be made an engine to insure the deprivation of his property. Such are a portion of the consequences which, in my opinion, must flow from the doctrines affirmed by the majority of the court; doctrines, in my view, not warranted by the constitution, nor by the interpretation heretofore given of that instrument; and the assertion whereof seemed not to have been necessarily involved in the adjudication of this cause. With the convictions predominating in my mind as to the nature and tendencies of these doctrines; whilst I cherish the profoundest respect for the wisdom and purity of those who maintain them; it would be a dereliction of duty in me, to yield to them a direct or a tacit acquiescence; I, therefore, declare my dissent from them.


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Prigg v. Pennsylvania/Concurrence McLean

McLEAN, Justice.

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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City of Mobile v. Emanuel/Dissent Catron

Mr. Justice CATRON dissented.

The premises in controversy lie in front of the city of Mobile, and are claimed by the corporation, by virtue of the act of Congress, of May 20, 1824. They lie both below high and low water-mark.

The court charged the jury that, if the place in controversy was subsequent to the admission of this state into the Union, below both high and low water-mark, then Congress had no right to grant it, and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of Congress.

That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-mark, and the channel, in front of the grant, and had been reclaimed by defendants; then the plaintiffs could not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the rights of way specified in the confirmation of the grant to Forbes.

To all of which charge the counsel of the plaintiffs excepted.

The jury found a general verdict of not guilty. As Alabama was admitted into the Union, December 14, 1819, the first instruction was conclusive of the plaintiffs' title. On the admitted fact, that the land lay under the water in 1824, the court pronounced the act of Congress void.

The second instruction depends on the fact, 'whether the defendant had reclaimed the land in front of the grant of Forbes.' There is no evidence in the record that he had done so; and all the evidence purports to have been set out.

A writ of error was prosecuted to the Supreme Court of Alabama. That court simply affirmed the judgment of the Circuit Court: and from that affirmance a writ of error was prosecuted to this court, by the corporation of the city of Mobile, under the twenty-fifth section of the judiciary act.

One error assigned in the Supreme Court of Alabama, was, 'That the charge of the circuit judge denies, that the United States had right and power to grant the premises in question.'

On the general affirmance, can this court take jurisdiction and reverse, because the first instruction was erroneous. In the case of the same plaintiffs against Eslava, 16 Peters, 246, the majority of the court held, that the opinion of the Supreme Court of Alabama certified as part of the record, was no part of it. Speaking of the opinion, the court says: 'Their opinion constitutes no part of the record, and is not properly a part of the case. We must look to the points raised by the exceptions in the Circuit Court, as the only questions for our consideration and decision.'

And so this court held, in even a stronger case, (Gordon v. Longest, 16 Peters, 103,) where there had been a general affirmance of the judgment below, by the Supreme Court of Kentucky.

In Eslava's case, I thought the opinion of the Supreme Court of Alabama formed part of the record: in that case, as in this, the opinion was found in the paper book; but a majority of the court ruled it out, as no part of the record; to which decision I submit, of course.

Looking only to the points raised by the exceptions in the Circuit Court, and we find it established with a plainness admitting of no doubt, that Alabama claims to hold as her own; and does actually hold, by force of her judicial decisions, all the lands within the state, flowed by tide water: and that this claim is founded, on an implied cession of the lands under tide water, by the United States to Alabama, as a consequence of the sanction given by Congress to the state constitution. The disastrous results of this assumption on part of the state courts of Alabama, I endeavoured to point out, (so far as pressure of circumstances would permit,) in my opinions in the cases of these plaintiffs against Eslava and Hallet, 16 Peters, 247 and 263.

That the United States had the undoubted title before the adoption of the constitution of Alabama, has never been denied by any one; and that the state acquired title by that event has not been proved, nor can it be, as I think: nor is it perceived how the question can be avoided in the cause before us, unless we look beyond the record. I therefore believe the judgment should be reversed because there was error in the first instruction. For my reasons I refer to the opinions in the cases of Eslava and Hallet. To these I will add, that it is impossible for this court to follow the decisions of the Supreme Court of Alabama, without overruling the decision in Pollard's heirs v. Kibbie, 14 Peters, 353. William Pollard claimed a square of land below high water-mark fronting the city of Mobile: the claim was founded originally on a Spanish concession, made in 1809. This was merely void, as was held in Foster and Elam v. Neilson, 2 Peters, 254, and in Garcia v. Lee, 12 Peters, 511. By the 2d sec. of the act of 1824, the land was excepted from its operation and did not pass to the city of Mobile. 14 Peters, 364, 365, 366. The title to the square claimed by Pollard therefore remained in the United States until it was granted to his heirs, by a private act of Congress, of 1836, and a patent founded on the act, dated in 1837. This court maintained the title, and a recovery was had on the act of 1836, and the patent from the government.

If the act of 1824 is void, because Congress had no power to grant the lands below the flow of the tides; so is equally, and as certainly, the act of 1836, and the patent founded on it.

Forbes owned the land, in front of the land granted to Pollard's heirs: Forbes's grant extended to high water-mark; was dated in 1802; and was undisputed. This court held in effect that it was bounded, and could not extend by implication beyond the high water-mark. So is the undoubted construction of grants for lands fronting tide waters. A grant of lands on each side of an arm of the sea, and embracing it, does not pass the land under the water by general words; there must be special words of grant, showing plainly the land covered with water, was intended to be granted: without such explicit words of grant, the high lands only pass. Such is the settled doctrine of this court. Martin v. Waddel, 16 Peters, 367. Forbes therefore could not claim as riparian owner, the land granted on his front, to Pollard: to hold otherwise would overrule the decision of Martin v. Waddel.

In any aspect this controversy can be presented, it falls within the decision of Pollard v. Kibbie: that case must be overruled, if the doctrine of the courts of Alabama is maintained.

This cause came on to be heard on the transcript of the record from the Supreme Court of the state of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs.


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United States v. Linn (42 U.S. 104)/Dissent McLean

Mr. Justice McLEAN dissented.

The joint plea of non est facturm to the first count in the declaration being bad against Linn, is undoubtedly bad against the other defendants. But this point was not raised in the Circuit Court. It was not intended to be raised. On the contrary, the counsel agreed to submit the question under the plea, whether the annexation of the seals by Linn vitiated the bond as against the sureties. And the reason for this was stated in the following entry on the record: 'A judgment having been obtained against Linn for the full amount of his defalcation, a judgment on this bond was not asked against him or any of the defendants, unless the jury shall find against all the defendants.'

This agreement was treated by the counsel on both sides, in the Circuit Court, as waiving any technical question arising on the pleading. No one could doubt that the bond was good against Linn. And it is equally clear that, technically, the plea was bad for the other defendants, it being bad as to Linn. And it was to avoid any technicality of this kind that the agreement was entered into. It is less definite than it should have been, but still its object seems to be manifest. That a construction here would be given to the agreement different from that which was given to it by the United States attorney in the Circuit Court, was not expected. His construction is shown from the fact of his not having suggested any objection to the court below arising on the joint plea.

The plea of Joseph Duncan as to the alteration of the bond is held to be bad, because it is not averred that it was altered by the plaintiffs or by their authority. At the same time it is admitted that, on the general issue, the person claiming under the deed must explain any interlineation or alteration upon its face, so as to show the bond is not vitiated. The reason of this is clear. The party having possession of the bond is presumed to have a knowledge of any alteration of it, and is therefore required to explain it. Prima facie, any material alteration vitiates the bond.

Now the special plea in this case states a material alteration, by affixing the seals, after the instrument had been approved of by the district judge. The demurrer admits the facts stated in the plea. Does it not follow, then, that the plea is good, if the alteration alleged in it be a material one; such an one as vitiates the instrument unless explained? No rule in pleading is better settled than that a fact which is presumed to be known to the plaintiff, and is not presumed to be within the knowledge of the defendant, the defendant need not aver it in his plea, if he can without the averment set up a prima facie defence. Mr. Chitty says, 1 vol. of Plead. 255, 'It is also a general rule, that matter which should come more properly from the other side need not be stated. In other words, it is enough for each party to make out his own case or defence. He sufficiently substantiates the charge or answer for the purposes of pleading, if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and therefore is not compelled to notice and remove in his declaration or plea every possible exception, answer, or objection which may exist, and with which the adversary may intend to oppose him.' Com. Dig. Pleader, c. 81; Plowd. 376; 2 Saund. 62 a, n. 4; 1 Term Rep. 638; 8 Term Rep. 167; Stephen's Pl. 1st ed. 354.

No one can doubt that the alteration averred in the above plea, appearing on the face of the instrument, would vitiate it, unless explained by the holder. And it follows then that the plea stating the fact, which the demurrer admits, must be answered and explained.

The defendant must know whether an instrument which he has executed has been altered in a material part. But he is not presumed to know by whom it has been altered, while it is in the possession of the party who claims under it. If the defendant must aver this, he must prove it; and this would be impossible. But, on the other hand, the person claiming under the instrument, and who has always been in possession of it, may well be presumed to know by whom it has been altered, and, therefore, he, and he only, can explain it. Any other rule would be most unreasonable and contrary to any proper system of pleading.

The rules lately adopted by the courts of England in regard to pleading seem 'not to have fallen under the notice of this court.' This is to be regretted, as those rules have been published in the late editions of Mr. Chitty on Pleading, and are known to the profession throughout the country.

It is true, as the court say, that intendments are taken against the plea; but intendments must not only be practicable, but reasonable. If a fact in the plea be omitted, which the defendant cannot be presumed to know, and which must be known to the plaintiff, no intendment against the plea can be drawn.

Mr. Stephens, in his Treatise on Pleading, 350, under the head that, 'it is not necessary to state matter which would come more properly from the other side,' says, 'this, which is the ordinary form of the rule, does not fully express its meaning. The meaning is, that it is not necessary to anticipate the answer of the adversary; which, according to Hale, C. J., 'is like leaping before one comes to the stile.' It is sufficient that each pleading should in itself contain a good prima facie case, without reference to possible objections not yet urged.' 'Thus in pleading a devise of land by force of the statute of wills, 32 Hen. 8, c. 1, it is sufficient to allege that such an one was seised of the land in fee, and devised it by his last will, in writing, without alleging that such devisor was of full age. For though the statute provides that wills made by femes covert, or persons within age, &c., shall not be taken to be effectual; yet if the devisor were within age, it is for the other party to show this in his answer, and it need not be denied by anticipation.'

'So where an action of debt was brought upon the statute 21 Hen. 6, against the bailiff of a town for not returning a burgess of that town for the last Parliament, (the words of the statute being that the sheriff shall send his precept to the mayor, and if there be no mayor, then to the bailiff,) the plaintiff declared that the sheriff had made his precept unto the bailiff, without averring that there was no mayor. And after verdict for the plaintiff, this was moved in arrest of judgment. But the court was of opinion clearly, that the declaration was good; for we shall not intend that there was a mayor, except it be showed; if there were one, it should come more properly on the other side.'

'Where the matter is such that its affirmation or denial is essential to the apparent or prima facie right of the party pleading, there it ought to be affirmed or denied.' Now the alteration of the instrument in a material part, after Duncan the defendant had signed it, without his consent or knowledge, did make a prima facie case. It made such a case, as, upon the general issue, would have required the plaintiffs to show by whom it was altered. And this shows that the plea is good. It is the same principle whether it arise on the general issue or by special plea. The same order of proof is required. The plaintiffs, therefore, instead of demurring, should have pleaded over, and alleged that the alteration was made by a stranger, and, consequently, that it did not vitiate the instrument.

The plea should have concluded with a verification, and not to the country. But this could only be taken advantage of by special demurrer. This defect is not one of the causes assigned in the demurrer, and, therefore, cannot be objected to.

The second and third counts of the declaration being bad, as ruled by the court, the judgment of the Circuit Court should, on those counts, have been affirmed, and not reversed. Mr. Stephens, in his Pleading, 144, says again, 'It is a rule, that on demurrer the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it.' 'Thus on demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but for the plaintiff, provided the declaration be good; but if the declaration also be bad in substance, then, upon the same principle, judgment would be given for the defendant.' Piggot's case, 5 Rep. 29 a; Bates v. Cost, 2 Barn. & Cres. 474.

I believe this case is the first exception to the above rule. Notwithstanding the above defective counts, judgment is given generally against the defendant. It is hoped that this ruling will not establish a precedent in other cases.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Illinois, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to proceed therein conformably to to the opinion of this court.


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of the University of Leyden

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BRENTANO’S

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 Copyright, 1920, by BRENTANO'S

Third Edition

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it is true or not that not more than twelve persons in all the world are able to understand Einstein's Theory, it is nevertheless a fact that there is a constant demand for information about this much-debated topic of relativity. The books published on the subject are so technical that only a person trained in pure physics and higher mathematics is able to fully understand them. In order to make a popular explanation of this far-reaching theory available, the present book is published.

Professor Lorentz is credited by Einstein with sharing the development of his theory. He is doubtless

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 better able than any other man — except the author himself — to explain this scientific discovery. The publishers wish to acknowledge their indebtedness to the New York Times, The Review of Reviews and The Athenaeum for courteous permission to reprint articles from their pages. Professor Lorentz's article appeared originally in The Nieuwe Rotterdamsche Courant of, November 19, 1919.

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action of the Royal Society at its meeting in London on November 6, in recognizing Dr. Albert Einstein's "theory of relativity" has caused a great stir in scientific circles on both sides of the Atlantic. Dr. Einstein propounded his theory nearly fifteen years ago. The present revival of interest in it is due to the remarkable confirmation which it received in the report of the observations made during the sun's eclipse of last May to determine whether rays of light passing close to the sun are deflected from their course.

The actual deflection of the rays that was discovered by the astronomers

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 was precisely what had been predicted theoretically by Einstein many years since. This striking confirmation has led certain German scientists to assert that no scientific discovery of such importance has been made since Newton's theory of gravitation was promulgated. This suggestion, however, was put aside by Dr. Einstein himself when he was interviewed by a correspondent of the New York Times at his home in Berlin. To this correspondent he expressed the difference between his conception and the law of gravitation in the following terms :

"Please imagine the earth removed, and in its place suspended a box as big as a room or a whole house, and inside a man naturally

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 floating in the center, there being no force whatever pulling him. Imagine, further, this box being, by a rope or other contrivance, suddenly jerked to one side, which is scientifically termed 'difform motion,' as opposed to 'uniform motion.' The person would then naturally reach bottom on the opposite side. The result would consequently be the same as if he obeyed Newton's law of gravitation, while, in fact, there is no gravitation exerted whatever, which proves that difform motion will in every case produce the same effects as gravitation.

"I have applied this new idea to every kind of difform motion and have thus developed mathematical formulas which I am convinced give more precise results than those

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 based on Newton's theory. Newton's formulas, however, are such close approximations that it was difficult to find by observation any obvious disagreement with experience."

Dr. Einstein, it must be remembered, is a physicist and not an astronomer. He developed his theory as a mathematical formula. The confirmation of it came from the astronomers. As he himself says, the crucial test was supplied by the last total solar eclipse. Observations then proved that the rays of fixed stars, having to pass close to the sun to reach the earth, were deflected the exact amount demanded by Einstein's formulas. The deflection was also in the direction predicted by him.

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 The question must have occurred to many, what has all this to do with relativity? When this query was propounded by the Times correspondent to Dr. Einstein he replied as follows:

"The term relativity refers to time and space. According to Galileo and Newton, time and space were absolute entities, and the moving systems of the universe were dependent on this absolute time and space. On this conception was built the science of mechanics. The resulting formulas sufficed for all motions of a slow nature; it was found, however, that they would not conform to the rapid motions apparent in electrodynamics.

"This led the Dutch professor, Lorentz, and myself to develop the

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 theory of special relativity. Briefly, it discards absolute time and space and makes them in every instance relative to moving systems. By this theory all phenomena in electrodynamics, as well as mechanics, hitherto irreducible by the old formulæ — and there are multitudes — were satisfactorily explained.

"Till now it was believed that time and space existed by themselves, even if there was nothing else — no sun, no earth, no stars — while now we know that time and space are not the vessel for the universe, but could not exist at all if there were no contents, namely, no sun, earth and other celestial bodies.

"This special relativity, forming the first part of my theory, relates to all systems moving with uniform

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 motion; that is, moving in a straight line with equal velocity.

"Gradually I was led to the idea, seeming a very paradox in science, that it might apply equally to all moving systems, even of difform motion, and thus I developed the conception of general relativity which forms the second part of my theory."

As summarized by an American astronomer, Professor Henry Norris Russell, of Princeton, in the Scientific American for November 29, Einstein's contribution amounts to this:

"The central fact which has been proved — and which is of great interest and importance — is that the natural phenomena involving gravitation and inertia (such as the mo-

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 tions of the planets) and the phenomena involving electricity and magnetism (including the motion of light) are not independent of one another, but are intimately related, so that both sets of phenomena should be regarded as parts of one vast system, embracing all Nature. The relation of the two is, however, of such a character that it is perceptible only in a very few instances, and then only to refined observations."

Already before the war, Einstein had immense fame among physicists, and among all who are interested in the philosophy of science, because of his principle of relativity.

Clerk Maxwell had shown that light is electromagnetic, and had reduced the whole theory of electro-

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 magnetism to a small number of equations, which are fundamental in all subsequent work. But these equations were entangled with the hypothesis of the ether, and with the notion of motion relative to the ether. Since the ether was supposed to be at rest, such motion was indistinguishable from absolute motion. The motion of the earth relatively to the ether should have been different at different points of its orbit, and measurable phenomena should have resulted from this difference. But none did, and all attempts to detect effects of motions relative to the ether failed. The theory of relativity succeeded in accounting for this fact. But it was necessary incidentally to throw over the one universal time, and substitute local times at-

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 tached to moving bodies and varying according to their motion. The equations on which the theory of relativity is based are due to Lorentz, but Einstein connected them with his general principle, namely, that there must be nothing, in observable phenomena, which could be attributed to absolute motion of the observer.

In orthodox Newtonian dynamics the principle of relativity had a simpler form, which did not require the substitution of local time for general time. But it now appeared that Newtonian dynamics is only valid when we confine ourselves to velocities much less than that of light. The whole Galileo-Newton system thus sank to the level of a first approximation, becoming progressively less exact as the velocities concerned approached that of light.

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 Einstein's extension of his principle so as to account for gravitation was made during the war, and for a considerable period our astronomers were unable to become acquainted with it, owing to the difficulty of obtaining German printed matter. However, copies of his work ultimately reached the outside world and enabled people to learn more about it. Gravitation, ever since Newton, had remained isolated from other forces in nature; various attempts had been made to account for it, but without success. The immense unification effected by electromagnetism apparently left gravitation out of its scope. It seemed that nature had presented a challenge to the physicists which none of them were able to meet.

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 At this point Einstein intervened with a hypothesis which, apart altogether from subsequent verification, deserves to rank as one of the great monuments of human genius. After correcting Newton, it remained to correct Euclid, and it was in terms of non-Euclidean geometry that he stated his new theory. Non-Euclidean geometry is a study of which the primary motive was logical and philosophical; few of its promoters ever dreamed that it would come to be applied in physics. Some of Euclid's axioms were felt to be not "necessary truths," but mere empirical laws; in order to establish this view, self-consistent geometries were constructed upon assumptions other than those of Euclid. In these geometries the sum of the angles of

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 a triangle is not two right angles, and the departure from two right angles increases as the size of the triangle increases. It is often said that in non-Euclidean geometry space has a curvature, but this way of stating the matter is misleading, since it seems to imply a fourth dimension, which is not implied by these systems.

Einstein supposes that space is Euclidean where it is sufficiently remote from matter, but that the presence of matter causes it to become slightly non-Euclidean — the more matter there is in the neighborhood, the more space will depart from Euclid. By the help of this hypothesis, together with his previous theory of relativity, he deduces gravitation — very approximately, but not exactly, according to the Newtonian law of the inverse square.

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 The minute differences between the effects deduced from his theory and those deduced from Newton are measurable in certain cases. There are, so far, three crucial tests of the relative accuracy of the new theory and the old.

(1) The perihelion of Mercury shows a discrepancy which has long puzzled astronomers. This discrepancy is fully accounted for by Einstein. At the time when he published his theory, this was its only experimental verification.

(2) Modern physicists were willing to suppose that light might be subject to gravitation — i.e., that a ray of light passing near a great mass like the sun might be deflected to the extent to which a particle moving with the same velocity would be de-

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 flected according to the orthodox theory of gravitation. But Einstein's theory required that the light should be deflected just twice as much as this. The matter could only be tested during an eclipse among a number of bright stars. Fortunately a peculiarly favourable eclipse occurred last year. The results of the observations have now been published, and are found to verify Einstein's prediction. The verification is not, of course, quite exact; with such delicate observations that was not to be expected. In some cases the departure is considerable. But taking the average of the best series of observations, the deflection at the sun's limb is found to be 1.98", with a probable error of about 6 per cent., whereas the deflection calculated by

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 Einstein's theory should be 1.75". It will be noticed that Einstein's theory gave a deflection twice as large as that predicted by the orthodox theory, and that the observed deflection is slightly larger than Einstein predicted. The discrepancy is well within what might be expected in view of the minuteness of the measurements. It is therefore generally acknowledged by astronomers that the outcome is a triumph for Einstein.

(3) In the excitement of this sensational verification, there has been a tendency to overlook the third experimental test to which Einstein's theory was to be subjected. If his theory is correct as it stands, there ought, in a gravitational field, to be a displacement of the lines of the spectrum towards the red. No such

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 effect has been discovered. Spectroscopists maintain that, so far as can be seen at present, there is no way of accounting for this failure if Einstein's theory in its present form is assumed. They admit that some compensating cause may be discovered to explain the discrepancy, but they think it far more probable that Einstein's theory requires some essential modification. Meanwhile, a certain suspense of judgment is called for. The new law has been so amazingly successful in two of the three tests that there must be some thing valid about it, even if it is not exactly right as yet.

Einstein's theory has the very highest degree of aesthetic merit: every lover of the beautiful must wish it to be true. It gives a vast

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34 the sensation of possession when they knew that these troops had come to open the country and protect those more adventurous spirits who were already finding that a place into which the railroad ran was too far East for them.

One day we were all invited to take luncheon on board the steamer that had been chartered to take the regimental property up the river to Bismarck. The owner of the boat was very hospitable, and champagne flowed freely as he proposed old-fashioned toasts. The officers and ladies of the regiment received with pleasure all this politeness, and since these occasions were rare in the lives of those of us who lived always on the outskirts of civilization, we were reluctant to go home. My horse had been sent away by some mistake, and the general accepted the offer of the host to drive me out to camp, he riding for a time beside the carriage, and then, with his usual restlessness, giving rein to his horse for a brisk gallop. It was not long before I discovered that the uncertain swaying of the vehicle from side to side, and the hazardous manner in which we skirted the deep gullies, was due to the fact that our friend was overcome with hospitality.

Trying to talk intelligently, and to appear not to notice the vagaries of the driver, and at the same time to control my wandering eyes as they espied from afar a dangerous bit of road, I spent a very uncomfortable hour. Fortunately the "dear Polly" was most demure in harness, and possibly having been left before that to find her own way under similar circumstances, she did not attempt to leap with the carriage over ditches, as

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 unified survey of the operations of nature, with a technical simplicity in the critical assumptions which makes the wealth of deductions astonishing. It is a case of an advance arrived at by pure theory: the whole effect of Einstein's work is to make physics more philosophical (in a good sense), and to restore some of that intellectual unity which belonged to the great scientific systems of the seventeenth and eighteenth centuries, but which was lost through increasing specialization and the overwhelming mass of detailed knowledge. In some ways our age is not a good one to live in, but for those who are interested in physics there are great compensations.

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total eclipse of the sun of May 29, resulted in a striking confirmation of the new theory of the universal attractive power of gravitation developed by Albert Einstein, and thus reinforced the conviction that the defining of this theory is one of the most important steps ever taken in the domain of natural science. In response to a request by the editor, I will attempt to contribute something to its

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 general appreciation in the following lines.

For centuries Newton's doctrine of the attraction of gravitation has been the most prominent example of a theory of natural science. Through the simplicity of its basic idea, an attraction between two bodies proportionate to their mass and also proportionate to the square of the distance; through the completeness with which it explained so many of the peculiarities in the movement of the bodies making up the solar system; and, finally, through its universal validity, even in the case of the far-distant planetary systems, it compelled the admiration of all.

But, while the skill of the mathematicians was devoted to making

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 more exact calculations of the consequences to which it led, no real progress was made in the science of gravitation. It is true that the inquiry was transferred to the field of physics, following Cavendish's success in demonstrating the common attraction between bodies with which laboratory work can be done, but it always was evident that natural philosophy had no grip on the universal power of attraction. While in electric effects an influence exercised by the matter placed between bodies was speedily observed — the starting-point of a new and fertile doctrine of electricity — in the case of gravitation not a trace of an influence exercised by intermediate matter could ever be discovered. It was, and remained, inaccessible and

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 unchangeable, without any connection, apparently, with other phenomena of natural philosophy.

Einstein has put an end to this isolation; it is now well established that gravitation affects not only matter, but also light. Thus strengthened in the faith that his theory already has inspired, we may assume with him that there is not a single physical or chemical phenomenon — which does not feel, although very probably in an unnoticeable degree, the influence of gravitation, and that, on the other side, the attraction exercised by a body is limited in the first place by the quantity of matter it contains and also, to some degree, by motion and by the physical and chemical condition in which it moves.

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 It is comprehensible that a person could not have arrived at such a far-reaching change of view by continuing to follow the old beaten paths, but only by introducting some sort of new idea. Indeed, Einstein arrived at his theory through a train of thought of great originality. Let me try to restate it in concise terms.

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Everyone knows that a person may be sitting in any kind of a vehicle without noticing its progress, so long as the movement does not vary in direction or speed; in a car of a fast express train objects fall in just the same way as in a coach that is standing still. Only when we look at objects outside the train, or when the air can enter the car, do we notice indications of the motion.

We may compare the earth with such a moving vehicle, which in its course around the sun has a remarkable speed, of which the direction and velocity during a considerable period of time may be regarded as

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 constant. In place of the air now comes, so it was reasoned formerly, the ether which fills the spaces of the universe and is the carrier of light and of electro-magnetic phenomena; there were good reasons to assume that the earth was entirely permeable for the ether and could travel through it without setting it in motion. So here was a case comparable with that of a railroad coach open on all sides. There certainly should have been a powerful "ether wind" blowing through the earth and all our instruments, and it was to have been expected that some signs of it would be noticed in connection with some experiment or other. Every attempt along that line, however, has remained fruitless; all the phenomena examined were

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 evidently independent of the motion of the earth. That this is the way they do function was brought to the front by Einstein in his first or "special" theory of relativity. For him the ether does not function and in the sketch that he draws of natural phenomena there is no mention of that intermediate matter.

If the spaces of the universe are filled with an ether, let us suppose with a substance, in which, aside from eventual vibrations and other slight movements, there is never any crowding or flowing of one part alongside of another, then we can imagine fixed points existing in it; for example, points in a straight line, located one meter apart, points in a level plain, like the angles or squares on a chess board extend-

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 ing out into infinity, and finally, points in space as they are obtained by repeatedly shifting that level spot a distance of a meter in the direction perpendicular to it. If, consequently, one of the points is chosen as an "original point" we can, proceeding from that point, reach any other point through three steps in the common perpendicular directions in which the points are arranged. The figures showing how many meters are comprized in each of the steps may serve to indicate the place reached and to distinguish it from any other; these are, as is said, the "co-ordinates" of these places, comparable, for example, with the numbers on a map giving the longitude and latitude. Let us imagine that each point has noted

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 upon it the three numbers that give its position, then we have something comparable with a measure with numbered subdivisions; only we now have to do, one might say, with a good many imaginary measures in three common perpendicular directions. In this "system of co-ordinates" the numbers that fix the position of one or the other of the bodies may now be read off at any moment.

This is the means which the astronomers and their mathematical assistants have always used in dealing with the movement of the heavenly bodies. At a determined moment the position of each body is fixed by its three co-ordinates. If these are given, then one knows also the common distances, as well as the

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 angles formed by the connecting lines, and the movement of a planet is to be known as soon as one knows how its co-ordinates are changing from one moment to the other. Thus the picture that one forms of the phenomena stands there as if it were sketched on the canvas of the motionless ether.

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Since Einstein has cut loose from the ether, he lacks this canvas, and therewith, at the first glance, also loses the possibility of fixing the positions of the heavenly bodies and mathematically describing their movement — i.e., by giving comparisons that define the positions at every moment. How Einstein has overcome this difficulty may be somewhat elucidated through a simple illustration.

On the surface of the earth the attraction of gravitation causes all bodies to fall along vertical lines, and, indeed, when one omits the resistance of the air, with an equally

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 accelerated movement; the velocity increases in equal degrees in equal consecutive divisions of time at a rate that in this country gives the velocity attained at the end of a second as 981 centimeters (32.2 feet) per second. The number 981 defines the "acceleration in the field of gravitation," and this field is fully characterized by that single number; with its help we can also calculate the movement of an object hurled out in an arbitrary direction.

In order to measure the acceleration we let the body drop alongside of a vertical measure set solidly on the ground; on this scale we read at every moment the figure that indicates the height, the only co-ordinate that is of importance in this rectilinear movement. Now we ask

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 what would we be able to see if the measure were not bound solidly to the earth, if it, let us suppose, moved down or up with the place where it is located and where we are ourselves. If in this case the speed were constant, then, and this is in accord with the special theory of relativity, there would be no motion observed at all; we should again find an acceleration of 981 for a falling body. It would be different if the measure moved with changeable velocity.

If it went down with a constant acceleration of 981 itself, then an object could remain permanently at the same point on the measure, or could move up or down itself alongside of it, with constant speed. The relative movement of the body with

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