text:
Page:Observations on Man 1834.djvu/345

 Thirdly, The many benefits which we receive immediately from, or which have some evident, though distant, connexion with the piety, benevolence, and temperance of others; also the contrary mischiefs from their vices; lead us first to the love and hatred of the persons themselves by association, as explained under the head of sympathy, and then by farther associations to the love and hatred of the virtues and vices, considered abstractedly, and without any regard to our own interest; and that whether we view them in ourselves or others. As our love and esteem for virtue in others is much increased by the pleasing consciousness, which our own practice of it affords to ourselves, so the pleasure of this consciousness is much increased by our love of virtue in others.

Fourthly, The great suitableness of all the virtues to each other, and to the beauty, order, and perfection of the world, animate and inanimate, impresses a very lovely character upon virtue; and the contrary self-contradiction, deformity, and mischievous tendency of vice, render it odious, and matter of abhorrence to all persons that reflect upon these things; and beget a language of this kind, which is borrowed, in great measure, from the pleasures and pains of imagination, and applied with a peculiar force and fitness to this subject from its great importance.

Fifthly, The hopes and fears which arise from the consideration of a future state, are themselves pleasures and pains of a high nature. When, therefore, a sufficient foundation has been laid by a practical belief of religion, natural and revealed, by the frequent view of, and meditation upon, death, by the loss of departed friends, by bodily pains, by worldly disappointments and afflictions, for forming strong associations of the pleasures of these hopes with duty, and the pains of these fears with sin, the reiterated impressions of those associations will at last make duty itself a pleasure, and convert sin into a pain, giving a lustre and deformity respectively to all their appellations; and that without any express recollection of the hopes and fears of another world, just as in other cases of association.

Sixthly, All meditations upon God, who is the inexhaustible fountain, and infinite abyss, of all perfection, both natural and moral; also all the kinds of prayer, i.e. all the ways of expressing our love, hope, trust, resignation, gratitude, reverence, fear, desire, &c. towards him; transfer, by association, all the perfection, greatness, and gloriousness of his natural attributes upon his moral ones, i.e. upon moral rectitude. We shall by this means learn to be merciful, holy, and perfect, because God is so; and to love mercy, holiness, and perfection, wherever we see them.

And thus we may perceive, that all the pleasures and pains of sensation, imagination, ambition, self-interest, sympathy, and theopathy, as far as they are consistent with one another, with the frame of our natures, and with the course of the world, beget

title: Page:Observations on Man 1834.djvu/345


text: The New International Encyclopædia/Aufrecht, Theodor

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:Observations on Man 1834.djvu/346

 in us a moral sense, and lead us to the love and approbation of virtue, and to the fear, hatred, and abhorrence of vice. This moral sense therefore carries its own authority with it, inasmuch as it is the sum total of all the rest, and the ultimate result from them; and employs the force and authority of the whole nature of man against any particular part of it, that rebels against the determinations and commands of the conscience or moral judgment.

It appears also, that the moral sense carries us perpetually to the pure love of God, as our highest and ultimate perfection, our end, centre, and only resting-place, to which yet we can never attain.

When the moral sense is advanced to considerable perfection, a person may be made to love and hate, merely because he ought; i.e. the pleasures of moral beauty and rectitude, and the pains of moral deformity and unfitness, may be transferred, and made to coalesce, almost instantaneously.

Scrupulosity may be considered as a degeneration of the moral sense, resembling that by which the fear of God passes into superstition; for it arises, like this, from a consciousness of guilt, explicit or implicit, from bodily indisposition, and from an erroneous method of reasoning. It has also a most intimate connexion with superstition (just as moral rectitude has with the true love and fear of God:) and, like superstition, it is, in many cases, observed to work its own cure by rectifying what is amiss; and so by degrees removing both the explicit and implicit consciousness of guilt. It seems also, that in this imperfect state men seldom arrive at any great degree of correctness in their actions without some previous scrupulosity, by which they may be led to estimate the nature and consequences of affections and actions with care, impartiality, and exactness.

The moral sense or judgment here spoken of is sometimes considered as an instinct, sometimes as determinations of the mind, grounded on the eternal reasons and relations of things. Those who maintain either of these opinions may, perhaps, explain them so as to be consistent with the foregoing analysis of the moral sense from association. But if by instinct be meant a disposition communicated to the brain, and in consequence of this, to the mind, or to the mind alone, so as to be quite independent of association; and by a moral instinct, such a disposition producing in us moral judgments concerning affections and actions; it will be necessary, in order to support the opinion of a moral instinct, to produce instances, where moral judgments arise in us, independently of prior associations determining thereto.

In like manner, if by founding the morality of actions, and our judgment concerning this morality, on the eternal reasons and relations of things, be meant, that the reasons drawn from the relations of things, by which the morality or immorality of certain actions is commonly proved, and which, with the relations,

title: Page:Observations on Man 1834.djvu/346


text:
Page:Observations on Man 1834.djvu/347

 are called eternal, from their appearing the same, or nearly the same, to the mind at all times, would determine the mind to form the corresponding moral judgment independently of prior associations, this ought also to be proved by the allegation of proper instances. To me it appears, that the instances are, as far as we can judge of them, of an opposite nature, and favour the deduction of all our moral judgments, approbations, and disapprobations, from association alone. However, some associations are formed so early, repeated so often, rivetted so strong, and have so close a connexion with the common nature of man, and the events of life which happen to all, as, in a popular way of speaking, to claim the appellation of original and natural dispositions; and to appear like instincts when compared with dispositions evidently factitious; also like axioms, and intuitive propositions, eternally true according to the usual phrase, when compared with moral reasonings of a compound kind. But I have endeavoured to shew in these papers, that all reasoning, as well as affection, is the mere result of association.

CONCLUSION:
CONTAINING SOME REMARKS ON THE MECHANISM OF THE HUMAN MIND.

the consequences flowing from the doctrine of association, which are delivered in the corollaries to the fourteenth proposition, there is another, which is thought by many to have a pernicious tendency in respect of morality and religion; and which therefore it will be proper that I should consider particularly.

The consequence I mean is that of the mechanism or necessity of human actions, in opposition to what is generally termed free-will. Here then I will,

First, State my notion of the mechanism or necessity of human actions.

Secondly, Give such reasons as induce me to embrace the opinion of the mechanism of human actions.

Thirdly, Consider the objections and difficulties attending this opinion.

And, lastly, Allege some presumptions in favour of it from its consequences.

By the mechanism of human actions I mean, that each action results from the previous circumstances of body and mind, in the same manner, and with the same certainty, as other effects do

title: Page:Observations on Man 1834.djvu/347


text:
Page:Observations on Man 1834.djvu/348

 from their mechanical causes; so that a person cannot do indifferently either of the actions A, and its contrary a, while the previous circumstances are the same; but is under an absolute necessity of doing one of them, and that only. Agreeably to this I suppose, that by free-will is meant a power of doing either the action A, or its contrary a; while the previous circumstances remain the same.

If by free-will be meant a power of beginning motion, this will come to the same thing; since, according to the opinion of mechanism, as here explained, man has no such power; but every action, or bodily motion, arises from previous circumstances, or bodily motions, already existing in the brain, i.e. from vibrations, which are either the immediate effect of impressions then made, or the remote compound effect of former impressions, or both.

But if by free-will be meant any thing different from these two definitions of it, it may not perhaps be inconsistent with the mechanism of the mind here laid down. Thus, if free-will be defined the power of doing what a person desires or wills to do, of deliberating, suspending, choosing, &c. or of resisting the motives of sensuality, ambition, resentment, &c. Free-will, under certain limitations, is not only consistent with the doctrine of mechanism, but even flows from it; since it appears from the foregoing theory, that voluntary and semi-voluntary powers of calling up ideas, of exciting and restraining affections, and of performing and suspending actions, arise from the mechanism of our natures. This may be called free-will in the popular and practical sense, in contradistinction to that which is opposed to mechanism, and which may be called free-will in the philosophical sense.

I proceed now to the arguments which favour the opinion of mechanism.

First, then, it is evident to, and allowed by all, that the actions of mankind proceed, in many cases, from motives, i.e. from the influence which the pleasures and pains of sensation, imagination, ambition, self-interest, sympathy, theopathy, and the moral sense, have over them. And these motives seem to act like all other causes. When the motive is strong, the action is performed with vigour; when weak, feebly. When a contrary motive intervenes, it checks or over-rules, in proportion to its relative strength, as far as one can judge. So that where the motives are the same, the actions cannot be different; where the motives are different, the actions cannot be the same. And it is matter of common observation, that this is the case in fact, in the principal actions of life, and such where the motives are of a magnitude sufficient to be evident. It is reasonable therefore to interpret the obscure cases by the evident ones; and to infer, that there are in all instances motives of a proper kind and degree, which generate each action; though they are sometimes not seen through their

title: Page:Observations on Man 1834.djvu/348


text:
Page:Observations on Man 1834.djvu/349

 minuteness, or through the inattention or ignorance of the observer. Agreeably to which, those persons, who study the causes and motives of human actions, may decypher them much more completely, both in themselves, and those with whom they converse, than others can.

Suppose now a person able to decypher all his own actions in this way, so as to shew that they corresponded in kind and degree to the motives arising from the seven classes of pleasures and pains considered in this theory; also able to decypher the principal actions of others in the same way: this would be as good evidence, that motives were the mechanical causes of actions, as natural phænomena are for the mechanical operation of heat, diet, or medicines. Or if he could not proceed so far, but was able only to decypher most of his own actions, and many of the principal ones of others, still the evidence would scarce be diminished thereby, if the deficiency was no more than is reasonably to be expected from our ignorance and inattention, in respect to ourselves and others. Let the reader make the trial, especially upon himself, since such a self-examination cannot but be profitable, and may perhaps be pleasant; and that either according to the seven classes of pleasures and pains here laid down, or any other division, and judge as he thinks fit upon mature deliberation.

It may be of use in such an inquiry into a man’s self, as I here propose, for him to consider in a short time after any material action is past, whether, if he was once more put into the same rigidly exact circumstances, he could possibly do otherwise than as he did. Here the power of imagination will intervene, and be apt to deceive the inquirer, unless he be cautious. For in this review, other motives, besides those which did actually influence him, will start up; and that especially if the action be such as he wishes to have been performed with more vigour or less, or not to have been performed at all. But when these foreign motives are set aside, and the imagination confined to those which did in fact take place, it will appear impossible, as it seems to me, that the person should have done otherwise than the very thing which he did.

Secondly, According to the theory here laid down, all human actions proceed from vibrations in the nerves of the muscles, and these from others, which are either evidently of a mechanical nature, as in the automatic motions; or else have been shewn to be so in the account given of the voluntary motions.

And if the doctrine of vibrations be rejected, and sensation and muscular motion be supposed to be performed by some other kind of motion in the nervous parts; still it seems probable, that the same method of reasoning might be applied to this other kind of motion.

Lastly, To suppose, that the action A, or its contrary a, can equally follow previous circumstances, that are exactly the same,

title: Page:Observations on Man 1834.djvu/349


text:
Page:Observations on Man 1834.djvu/350

 appears to me the same thing, as affirming that one or both of them might start up into being without any cause; which, if admitted, appears to me to destroy the foundation of all general abstract reasoning; and particularly of that whereby the existence of the First Cause is proved.

One of the principal objections to the opinion of mechanism is that deduced from the existence of the moral sense, whose history I have just given. But it appears from that history, that God has so formed the world, and perhaps (with reverence be it spoken) was obliged by his moral perfections so to form it, as that virtue must have amiable and pleasing ideas affixed to it; vice, odious ones. The moral sense is therefore generated necessarily and mechanically. And it remains to be inquired, whether the amiable and odious ideas above shewed to be necessarily affixed to virtue and vice respectively, though differently, according to the different events of each person’s life, do not answer all the purposes of making us ultimately happy in the love of God, and of our neighbour; and whether they are not, cæteris paribus, the same entirely, or at least in all material respects, in those who believe mechanism, who believe free-will, and who have not entered into the discussion of the question at all; or if there be a difference, whether the associations arising from the opinion of necessity, do not tend more to accelerate us in our progress to the love of God, our only true happiness. It appears to me, that the difference is in general very small; also that this difference, whatever it be, is of such a nature as to be a presumption in favour of the doctrine of necessity, all things being duly considered.

When a person first changes his opinion from free-will to mechanism, or, more properly, first sees part of the mechanism of the mind, and believes the rest from analogy, he is just as much affected by his wonted pleasures and pains, hopes and fears, as before, by the moral and religious ones, as by others. And the being persuaded, that certain things have a necessary influence to change his mind for the better or the worse, i.e. so as to receive more sensible, sympathetic, religious pleasures, or otherwise, will force him still more strongly upon the right method, i.e. put him upon inquiring after and pursuing this method.

If it be objected, That the moral sense supposes, that we refer actions to ourselves and others, whereas the opinion of mechanism annihilates all those associations, by which we refer actions to ourselves or others; I answer, that it does this just as the belief of the reality and infinite value of the things of another world annihilates all the regards of this world. Both have a tendency to these respective ends, which are indeed one and the same at the bottom; but both require time, in order to produce their full effects. When religion has made any one indifferent to this world, its pleasures and pains, then the kingdom of God, or pure unmixed happiness, comes in respect of him; so that he may then well refer all to God. However, a man may be

title: Page:Observations on Man 1834.djvu/350


text:
Page:Observations on Man 1834.djvu/351

 thoroughly satisfied in a cool deliberate way, that honours, riches, &c. can afford no solid happiness; and yet desire them at certain times, eagerly perhaps, from former associations. But such a thorough general conviction applied previously to the particular instances, is a great help in a time of temptation, and will gradually destroy the wrong associations. In like manner, the opinion that God is the one only cause of all things, has a tendency to beget the most absolute resignation, and must be a great support in grievous trials and sufferings.

We may shew by a like method of reasoning, that the affections of gratitude and resentment, which are intimately connected with the moral sense, remain notwithstanding the doctrine of mechanism. For it appears from the account of resentment above delivered, that this, and by consequence gratitude, in their nascent state, are equally exerted towards all things, animate and inanimate, that are equally connected with pleasure and pain. By degrees all succeeding circumstances are left out, and our love and hatred confined to preceding ones, which we consider as the only causes. We then leave out inanimate objects entirely, brutes and children in most circumstances, and adults in some. All which is chiefly done, because acknowledgments, rewards, threatenings, and punishments, with the other associated circumstances of gratitude and resentment, can have no use but with respect to living intelligent beings. By farther degrees we learn such a use of the words cause and effect as to call nothing a cause, whose cause, or preceding circumstance, we can see, denominating all such things mere effects, all others causes. And thus, because the secret springs of action in men are frequently concealed, both from the by-stander, and even from the agent himself, or not attended to, we consider men in certain circumstances as real causes; and intelligent beings as the only ones that can be real causes; and thus confine our gratitude and resentment to them: whence it seems to follow, that as soon as we discover created intelligent beings not to be real causes, we should cease to make them the objects either of gratitude or resentment. But this is, in great measure, speculation; for it will appear to every attentive person, that benevolence, compassion, &c. are amiable, and the objects of gratitude, envy, and malice, the contrary, from whatever causes they proceed; i.e. he will find his mind so formed already by association, that he cannot withhold his gratitude or resentment: and it has been my business in the foregoing analysis of the affections, to point out the several methods by which this and such like things are brought about. And, for the same reasons, a person must ascribe merit and demerit, which are also intimately connected with the moral sense, to created intelligent beings, though he may have a full persuasion, that they are not real causes.

It does indeed appear, that this is owing to our present imperfect state, in which we begin with the idolatry of the creature,

title: Page:Observations on Man 1834.djvu/351


text:
Page:Observations on Man 1834.djvu/352

 with the worship of every associated circumstance; and that as we advance in perfection, the associations relating to the one only, Ultimate, Infinite Cause, must at last overpower all the rest; that we shall pay no regards but to God alone; and that all resentment, demerit, sin, and misery, will be utterly annihilated and absorbed by his infinite happiness and perfections. For our associations being in this, as in many other cases, inconsistent with each other, our first gross and transitory ones must yield to those which succeed and remain.

While any degree of resentment, or unpleasing affection, is left, it may be shewn, that the same associations which keep it up, will turn it upon the creatures, and particularly upon ourselves. And, on the other hand, when the consideration of the Ultimate Cause seems ready to turn it from ourselves, it will also shew that it ought to be annihilated.

These may be considered as general remarks, tending to remove the difficulties arising from the consideration of the moral sense. I will now state the principal objections to the opinion of mechanism, in a direct, but short way, adding such hints as appear to me to afford a solution of them.

First, then, It may be said, that a man may prove his own free-will by internal feeling. This is true, if by free-will be meant the power of doing what a man wills or desires; or of resisting the motives of sensuality, ambition, &c. i.e. free-will in the popular and practical sense. Every person may easily recollect instances, where he has done these several things. But then these are entirely foreign to the present question. To prove that a man has free-will in the sense opposite to mechanism, he ought to feel that he can do different things, while the motives remain precisely the same: and here I apprehend the internal feelings are entirely against free-will, where the motives are of a sufficient magnitude to be evident; where they are not, nothing can be proved.

Secondly, It may be said, that unless a man have free-will, he is not an agent. I answer, that this is true, if agency be so defined as to include free-will. But if agency have its sense determined, like other words, from the associated appearances, the objection falls at once. A man may speak, handle, love, fear, &c. entirely by mechanism.

Thirdly, It may be said, that the denial of free-will in man is the denial of it in God also. But to this it may be answered, that one does not know how to put the question in respect of God, supposing free-will to mean the power of doing different things, the previous circumstances remaining the same, without gross anthropomorphitism. It does not at all follow, however, because man is subject to a necessity ordained by God, that God is subject to a prior necessity. On the contrary, according to the doctrine of mechanism, God is the cause of causes, the one only source of all power.

title: Page:Observations on Man 1834.djvu/352


text:
Page:Observations on Man 1834.djvu/353

 Fourthly, It may be said, that men are perpetually imposed upon, unless they have free-will, since they think they have. But here again free-will is put for the power of doing what a man wills or desires, &c. for, in the sense opposite to mechanism, few persons have ever entered into the discussion of the point at all; and those who do with sufficient attention, cannot but determine against free-will, as it seems to me.

Fifthly, It may be said, that the doctrine of mechanism destroys the notion of a particular providence altering the course of nature so as to suit it to the actions of men. I answer, that laying down philosophical free-will, such an alteration in the course of nature may perhaps be necessary. But if man’s actions, and the course of nature, be both fixed, they may be suited to each other in the best possible manner; which is all that can be required, in order to vindicate God’s attributes, as well as all that man can desire.

Sixthly, It may be said, that all motives to good actions, and particularly to prayer, are taken away by denying free-will. I answer, that according to the mechanical system, prayer and good actions are the means for obtaining happiness; and that the belief of this is the strongest of motives to impel men to prayer and good works.

Seventhly, It may be said, that the denial of free-will destroys the distinction between virtue and vice. I answer, that this is according as these words are defined. If free-will be included in the definition of virtue, then there can be no virtue without freewill. But if virtue be defined obedience to the will of God, a course of action proceeding from the love of God, or from benevolence, &c. free-will is not at all necessary; since these affections and actions may be brought about mechanically.

A solution analogous to this may be given to the objection taken from the notions of merit and demerit. Let the words be defined, and they will either include free-will, or, not including it, will not require it; so that the proposition, merit implies freewill, will either be identical, or false.

Eighthly, It may be said, that the doctrine of mechanism makes God the author of sin. I answer, that till we arrive at self-annihilation, sin always will, and ought to, appear to arise from ourselves; and that, when we are arrived thither, sin and evil of every kind vanish. I answer also, that the doctrine of philosophical free-will does not remove our difficulties and perplexities, in respect of the moral attributes of God, unless by transferring them upon the natural ones; i.e. by our supposing that some prior necessity compelled God to bestow free-will on his creatures. It seems equally difficult, in every way, to account for the origin of evil, natural or moral, consistently with the infinity of the power, knowledge, and goodness of God. If we suppose that all tends to happiness ultimately, this removes the difficulty so far as to produce acquiescence in the will of God,

title: Page:Observations on Man 1834.djvu/353


text:
Page:Observations on Man 1834.djvu/354

 and thankfulness to him; and that just as much upon the system of mechanism as that of free-will. Moral evil has no difficulty in it, besides what arises from the natural evil attending it.

Ninthly, It may be said, that the exhortations of the Scriptures pre-suppose free-will. I answer, that they are to be considered as motives impelling the will, and contributing, as far as they are attended to, to rectify it. A parent who believes the doctrine of mechanism may, consistently with it, or rather must necessarily, in consequence of this belief, exhort his child. Therefore God, who is pleased to call himself our heavenly father, may do the same. And if we embrace the opinion of universal restoration, then all the exhortations contained both in the word and works of God, will produce their genuine effect, and concur to work in us dispositions fit to receive happiness ultimately.

I come now to hint some consequences of the doctrine of mechanism, which seem to me to be strong presumptions in its favour.

First, then, It entirely removes the great difficulty of reconciling the prescience of God with the free-will of man. For it takes away philosophical free-will, and the practical is consistent with God’s prescience.

Secondly, It has a tendency to beget the most profound humility and self-annihilation; since, according to this, we are entirely destitute of all power and perfection in ourselves, and are what we are entirely by the grace and goodness of God.

Thirdly, It has a tendency to abate all resentment against men. Since all that they do against us is by the appointment of God, it is rebellion against him to be offended with them.

Fourthly, It greatly favours the doctrine of universal restoration. Since all that is done is by the appointment of God, it cannot but end well at last.

Fifthly, It has a tendency to make us labour more earnestly with ourselves and others, particularly children, from the greater certainty attending all endeavours that operate in a mechanical way.

Lastly, There are many well-known passages of Scripture, which cannot be reconciled to the doctrine of philosophical free-will, without the greatest harshness of interpretation.

It may also be objected to the whole foregoing theory, as well as to the doctrine of vibrations in particular, that it is unfavourable to the immateriality of the soul; and, by consequence, to its immortality. But to this I answer, that I am reduced to the necessity of making a postulatum at the entrance of my inquiries; which precludes all possibility of proving the materiality of the soul from this theory afterwards. Thus I suppose, or postulate, in my first proposition, that sensations arise in the soul from motions excited in the medullary substance of the brain. I do indeed bring some arguments from physiology and pathology,

title: Page:Observations on Man 1834.djvu/354


text:
Page:Observations on Man 1834.djvu/355

 to shew this to be a reasonable postulatum, when understood in a general sense; for it is all one to the purpose of the foregoing theory, whether the motions in the medullary substance be the physical cause of the sensations, according to the system of the schools; or the occasional cause, according to Malbranche; or only an adjunct, according to Leibnitz. However, this is not supposing matter to be endued with sensation, or any way explaining what the soul is; but only taking its existence and connexion with the bodily organs in the most simple case, for granted, in order to make farther inquiries. Agreeably to which I immediately proceed to determine the species of the motion, and by determining it, to cast light on some important and obscure points relating to the connexion between the body and the soul in complex cases.

It does indeed follow from this theory, that matter, if it could be endued with the most simple kinds of sensation, might also arrive at all that intelligence of which the human mind is possessed: whence this theory must be allowed to overturn all the arguments which are usually brought for the immateriality of the soul from the subtlety of the internal senses, and of the rational faculty. But I no ways presume to determine whether matter can be endued with sensation or no. This is a point foreign to the purpose of my inquiries. It is sufficient for me, that there is a certain connexion, of one kind or other, between the sensations of the soul, and the motions excited in the medullary substance of the brain; which is what all physicians and philosophers allow.

I would not therefore be any way interpreted so as to oppose the immateriality of the soul. On the contrary, I see clearly, and acknowledge readily, that matter and motion, however subtilely divided, or reasoned upon, yield nothing more than matter and motion still. But then neither would I affirm, that this consideration affords a proof of the soul’s immateriality. In like manner the unity of consciousness seems to me an inconclusive argument. For consciousness is a mental perception; and if perception be a monad, then every inseparable adjunct of it must be so too, i.e. vibrations, according to this theory, which is evidently false. Not to mention, that it is difficult to know what is meant by the unity of consciousness.

But it is most worthy of notice, that the immateriality of the soul has little or no connexion with its immortality; and that we ought to depend upon Him who first breathed into man the breath of the present life, for our resurrection to a better. All live unto him. And if we depend upon any thing else besides him, for any blessing, we may be said so far to renounce our allegiance to him, and to idolize that upon which we depend.

title: Page:Observations on Man 1834.djvu/355


text: The New International Encyclopædia/Augarten


text:
User:Hesperian/Indices

This is a list of index pages sortable by progress made on transcription. It only include indices for which there is a corresponding image file.
 * "Pages not proofread" means pages that haven't yet got to the proofread stage—non-existent pages, pages in Category:Problematic and Category:Not proofread; but not Category:Proofread, Category:Validated or Category:Without text.
 * "Pages not validated" means pages that haven't yet got to the validated stage—non-existent pages, pages in Category:Problematic, Category:Not proofread and Category:Proofread; but not Category:Validated or Category:Without text.

Errors such as negative numbers are due to oddities in page categorisation, rather than a coding error. For example Index:The History of CRGS.djvu is listed as having -1 non-existent pages because this page gets counted twice. The dodgy pages have been fixed now so the problem should be gone next update.

title: User:Hesperian/Indices


text:
Prigg v. Pennsylvania/Concurrence Taney

TANEY, Ch. J.

I concur in the opinion pronounced by the court, that the law of Pennsylvania, under which the plaintiff in error was indicted, is unconstitutional and void; and that the judgment against him must be reversed. But as the questions before us arise upon the construction of the constitution of the United States, and as I do not assent to all the principles contained in the opinion just delivered, it is proper to state the points on which I differ.

I agree entirely in all that is said in relation to the right of the master, by virtue of the third clause of the second section of the fourth article of the constitution of the United States, to arrest his fugitive slave in any state wherein he may find him. He has a right, peaceably, to take possession of him, and carry him away, without any certificate or warrant from a judge of the district or circuit court of the United States, or from any magistrate of the state; and whoever resists or obstructs him, is a wrongdoer: and every state law which proposes, directly or indirectly, to authorize such resistance or obstruction, is null and void, and affords no justification to the individual or the officer of the state who acts under it. This right of the master being given by the constitution of the United States, neither congress nor a state legislature can, by any law or regulation, impair it or restrict it.

I concur also in all that is contained in the opinion concerning the power of congress to protect the citizens of the slave-holding states, in the enjoyment of this right; and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions; and no state is authorized to pass any law, that comes in conflict in any respect with the remedy provided by congress. The act of February 12th, 1793, is a constitutional exercise of this power; and every state law which requires the master, against his consent, to go before any state tribunal or officer, before he can take possession of his property; or which authorizes a state officer to interfere with him, when he is peaceably removing it from the state, is unconstitutional and void.

But, as I understand the opinion of the court, it goes further, and decides, that the power to provide a remedy for this right is vested exclusively in congress; and that all laws upon the subject, passed by a state, since the adoption of the constitution of the United States, are null and void; even although they were intended, in good faith, to protect the owner in the exercise of his rights of property, and do not conflict in any degree with the act of congress. I do not consider this question as necessarily involved in the case before us; for the law of Pennsylvania, under which the plaintiff in error was prosecuted, is clearly in conflict with the constitution of the United States, as well as with the law of 1793. But as the question is discussed in the opinion of the court, and as I do not assent either to the doctrine or the reasoning by which it is maintained, I proceed to state very briefly my objections.

The opinion of the court maintains, that the power over this subject is so exclusively vested in congress, that no state, since the adoption of the constitution, can pass any law in relation to it. In other words, according to the opinion just delivered, the state authorities are prohibited from interfering, for the purpose of protecting the right of the master, and aiding him in the recovery of his property. I think, the states are not prohibited; and that, on the contrary, it is enjoined upon them as a duty, to protect and support the owner, when he is endeavoring to obtain possession of his property found within their respective territories. The language used in the constitution does not, in my judgment, justify this construction given to it by the court. It contains no words prohibiting the several states from passing laws to enforce this right. They are, in express terms, forbidden to make any regulation that shall impair it; but there the prohibition stops. And according to the settled rules of construction for all written instruments, the prohibition being confined to laws injurious to the right, the power to pass laws to support and enforce it, is necessarily implied. And the words of the article which direct that the fugitive 'shall be delivered up,' seem evidently designed to impose it as a duty upon the people of the several states, to pass laws to carry into execution, in good faith, the compact into which they thus solemnly entered with each other. The constitution of the United States, and every article and clause in it, is a part of the law of every state in the Union; and is the paramount law. The right of the master, therefore, to seize his fugitive slave, is the law of each state; and no state has the power to abrogate or alter it. And why may not a state protect a right of property, acknowledged by its own paramount law? Besides, the laws of the different states, in all other cases, constantly protect the citizens of other states in their rights of property, when it is found within their respective territories; and no one doubts their power to do so. And in the absence of any express prohibition, I perceive no reason for establishing, by implication, a different rule in this instance; where, by the national compact, this right of property is recognised as an existing right in every state of the Union.

I do not speak of slaves whom their masters voluntarily take into a non-slave-holding state. That case is not before us. I speak of the case provided for in the constitution; that is to say, the case of a fugitive who has escaped from the service of his owner, and who has taken refuge and is found in another state.

Moreover, the clause of the constitution of which we are speaking, does not purport to be a distribution of the rights of sovereignty by which certain enumerated powers of government and legislation are exclusively confided to the United States. It does not deal with that subject. It provides merely for the rights of individual citizens of different states, and places them under the protection of the general government; in order more effectually to guard them from invasion by the states. There are other clauses in the constitution in which other individual rights are provided for and secured in like manner; and it never has been suggested, that the states could not uphold and maintain them, because they were guarantied by the constitution of the United States. On the contrary, it has always been held to be the duty of the states to enforce them; and the action of the general government has never been deemed necessary, except to resist and prevent their violation.

Thus, for example, the constitution provides that no state shall pass any law impairing the obligation of contracts. This, like the right in question, is an individual right, placed under the protection of the general government. And in order to secure it, congress have passed a law authorizing a writ of error to the supreme court, whenever the right thus secured to the individual is drawn in question, and denied to him, in a state court; and all state laws impairing this right are admitted to be void. Yet no one has ever doubted, that a state may pass laws to enforce the obligation of a contract, and may give to the individual the full benefit of the right so guarantied to him by the constitution, without waiting for legislation on the part of congress. Why may not the same thing be done in relation to the individual right now under consideration?

Again, the constitution of the United States declares, that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. And although the privileges and immunities, for greater safety, are placed under the guardianship of the general government; still the states may, by their laws, and in their tribunals, protect and enforce them. They have not only the power, but it is a duty enjoined upon them by this provision in the constitution. The individual right now in question, stands on the same grounds, and is given by similar words, and ought to be governed by the same principles. The obligation to protect rights of this description is imposed upon the several states as a duty, which they are bound to perform; ann the prohibition extends to those laws only which violate the right intended to be secured. I cannot understand the rule of construction by which a positive and express stipulation for the security of certain individual rights of property in the several states, is held to imply a prohibition to the states to pass any laws to guard and protect them.

The course pursued by the general government, after the adoption of the constitution, confirms my opinion as to its true construction. No law was passed by congress to give a remedy for this right, until nearly four years after the constitution went into operation. Yet, during that period of time, the master was undoubtedly entitled to take possession of his property, wherever he might find it; and the protection of this right was left altogether to the state authorities. In attempting to exercise it, he was continually liable to be resisted by superior force; or the fugitive might be harbored in the house of some one who would refuse to deliver him. And if a state could not authorize its officers, upon the master's application, to come to his aid, the guarantee contained in the constitution was of very little practical value. It is true, he might have sued for damages. But as he would, most commonly, be a stranger in the place where the fugitive was found, he might not be able to learn even the names of the wrongdoers; and if he succeeded in discovering them, they might prove to be unable to pay damages. At all events, he would be compelled to encounter the costs and expenses of a suit, prosecuted at a distance from his own home; and to sacrifice, perhaps, the value of his property, in endeavoring to obtain compensation.

This is not the mode in which the constitution intended to guard this important right; nor is this the kind of remedy it intended to give. The delivery of the property itself-its prompt and immediate delivery-is plainly required, and was intended to be secured. Indeed, if the state authorities are absolved from all obligation to protect this right, and may stand by and see it violated, without an effort to defend it, the act of congress of 1793 scarcely deserves the name of a remedy. The state officers mentioned in the law are not bound to execute the duties imposed upon them by congress, unless they choose to do so, or are required to do so by a law of the state; and the state legislature has the power, if it thinks proper, to prohibit them. The act of 1793, therefore, must depend altogether for its execution upon the officers of the United States named in it. And the master must take the fugitive, after he has seized him, before a judge of the district or circuit court, residing in the state, and exhibit his proofs, and procure from the judge his certificate of ownership, in order to obtain the protection in removing his property which this act of congress profess to give. Now, in many of the states, there is but one district judge, and there are only nine states which have judges of the supreme court residing within them. The fugitive will frequently be found by his owner, in a place very distant from the residence of either of these judges; and would certainly be removed beyond his reach, before a warrant could be procured from the judge to arrest him, even if the act of congress authorized such a warrant. But it does not authorize the judge to issue a warrant to arrest the fugitive; but evidently relied on the state authorities to protect the owner in making the seizure. And it is only when the fugitive is arrested and brought before the judge, that he is directed to take the proof, and give the certificate of ownership. It is only necessary to state the provisions of this law, in order to show how ineffectual and delusive is the remedy provided by congress, if state authority is forbidden to come to its aid.

But it is manifest, from the face of the law, that an effectual remedy was intended to be given, by the act of 1793. It never designed to compel the master to encounter the hazard and expense of taking the fugitive, in all cases, to the distant residence of one of the judges of the courts of the United States; for it authorized him also, to go before any magistrate of the county, city or town corporate wherein the seizure should be made. And congress evidently supposed, that it had provided a tribunal at the place of the arrest, capable of furnishing the master with the evidence of ownership, to protect him more effectually from unlawful interruption. So far from regarding the state authorities as prohibited from interfering in cases of this description, the congress of that day must have counted upon their cordial co-operation; they legislated with express reference to state support. And it will be remembered, that when this law was passed, the government of the United States was administered by the men who had but recently taken a leading part in the formation of the constitution. And the reliance obviously placed upon state authority, for the purpose of executing this law, proves that the construction now given to the constitution by the court, had not entered into their minds. Certainly, it is not the construction which it received in the states most interested in its faithful execution. Maryland, for example, which is substantially one of the parties to this case, has continually passed laws, ever since the adoption of the constitution of the United States, for the arrest of fugitive slaves from other states as well as her own. Her officers are by law required to arrest them, when found within her territory; and her magistrates are required to commit them to the public prison, in order to keep them safely, until the master has an opportunity to reclaiming them. And if the owner is not known, measures are directed to be taken, by advertisement, to apprise him of the arrest; and if known, personal notice to be given. And as fugitives from the more southern states, when endeavoring to escape into Canada, very frequently pass through her territory, these laws have been almost daily in the course of execution, in some part of the state. But if the states are forbidden to legislate on this subject, and the power is exclusively in congress, then these state laws are unconstitutional and void; and the fugitive can only be arrested, according to the provisions of the act of congress. But that law, the power to seize is given to no one but the owner, his agent or attorney. And if the officers of the state are not justified in acting under the state laws, and cannot arrest the fugitive, and detain him in prison, without having first received an authority from the owner; the territory of the state must soon become an open pathway for the fugitives escaping from other states. For they are often in the act of passing through it, by the time that the owner first discovers that they have absconded; and in almost every instance, they would be beyond its borders (if they were allowed to pass through without interruption), before the master would be able to learn the road they had taken.

I am aware, that my brethren of the majority do not contemplate these consequences; and do not suppose, that the opinion they have given will lead to them. And it seems to be supposed, that laws nearly similar to those I have mentioned, might be passed by the state, in the exercise of her powers over her internal police, and by virtue of her right to remove from her territory disorderly and evil-disposed persons, or those who, from the nature of her institutions, are dangerous to her peace and tranquillity. But it would be difficult, perhaps, to bring all the laws I have mentioned within the legitimate scope of the internal powers of police. The fugitive is not always arrested, in order to prevent a dangerous or evil-disposed person from remaining in her territory. He is himself most commonly anxious to escape from it; and it often happens, that he is seized near the borders of the state, when he is endeavoring to leave it, and is brought back and detained, until he can be delivered to his owner. He may sometimes be found travelling peaceably along the public highway, on his road to another state, in company with and under the protection of a white man who is abetting his escape. And it could hardly be maintained, that the arrest and confinement of the fugitive in the public prison, under such circumstances, until he could be delivered to his owner, was necessary for the internal peace of the state; and therefore, a justifiable exercise of its powers of police. It has not heretofore been supposed necessary, in order to justify these laws, to refer them to such questionable powers of internal and local police. They were believed to stand upon surer and firmer grounds. They were passed, not with reference merely to the safety and protection of the state itself; but in order to secure the delivery of the fugitive slave to his lawful owner. They were passed by the state, in the performance of a duty believed to be enjoined upon it by the constitution of the United States.

It is true, that Maryland as well as every other slave-holding state, has a deep interest in the faithful execution of the clause in question. But the obligation of the compact is not confined to them; it is equally binding upon the faith of every state in the Union; and has heretofore, in my judgment, been justly regarded as obligatory upon all.

I dissent, therefore, upon these grounds, from that part of the opinion of the court which denies the obligation and the right of the state authorities to protect the master, when he is endeavoring to seize a fugitive from his service, in pursuance of the right given to him by the constitution of the United States; provided the state law is not in conflict with the remedy provided by congress.

title: Prigg v. Pennsylvania/Concurrence Taney


text:
Prigg v. Pennsylvania/Concurrence Thompson

THOMPSON, Justice.

I concur in the judgment given by the court in this case. But not being able to yield my assent to all the doctrines embraced in the opinion, I will very briefly state the grounds on which my judgment is placed.

The provision in the constitution upon which the present question arises is as follows: 'No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.' Art. 4, § 2. We know, historically, that this provision was the result of a compromise between the slave-holding and non-slave-holding states; and it is the indispensable duty of all to carry it faithfully into execution, according to its real object and intention.

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

BALDWIN, Justice, concurred with the court in reversing the judgment of the supreme court of Pennsylvania, on the ground, that the act of the legislature was unconstitutional; inasmuch as the slavery of the person removed was admitted, the removal could not be kidnapping. But he dissented from the principles laid down by the court as the grounds of their opinion.


text:
Prigg v. Pennsylvania/Concurrence Wayne

WAYNE, Justice.

I concur altogether in the opinion of the court, as it has been given by my brother STORY. In that opinion it is decided:--

1. That the provision in the second section of the fourth article of the constitution, relative to feguitives from service or labor, confers upon the owner of a fugitive slave the right, by himself or his agent, to seize and arrest, without committing a breach of the peace, his fugitive slave, as property, in any state of the Union; and that no state law is constitutional which interferes with such right.

2. That the provision authorizes and requires legislation by congress to guard that right of seizure and arrest against all state and other interference, to make the delivery of fugitive slaves more effectual when the claims of owners are contested; and to insure to owners the unmolested transportation of fugitive slaves, through any of the states, to the state from which they may have fled.

3. That the legislation by congress upon the provision, as the supreme law of the land, excludes all state legislation upon the same subject; and that no state can pass any law or regulation, or interpose such as may have been a law or regulation when the constitution of the United States was ratified, to superadd to, control, qualify or impede a remedy, enacted by congress, for the delivery of fugitive slaves to the parties to whom their service or labor is due.

4. That the power of legislation by congress upon the provision is exclusive; and that no state can pass any law as a remedy upon the subject, whether congress had or had not legislated upon it.

5. That the act of congress of the 12th February 1793, entitled 'an act respecting fugitives from justice, and persons escaping from the service of their masters,' gives a remedy; but does not exhaust the remedies which congress may legislate upon the subject.

6. That the points so decided are not intended to interfere in any way, nor do they interfere in any manner, with the police power in the states, to arrest and imprison fugitive slaves, to guard against their misconduct and depredations; or to punish them for offences and crimes committed in the states to which they may have fled.

7. These points being so decided and applied to the case before the court it follows, that the law of Pennsylvania, upon which the plaintiff is indicted, is unconstitutional; and that the judgment given by the supreme court of Pennsylvania against the plaintiff must be reversed.

All of the judges of the court concur in the opinion, that the law under which the plaintiff in error was indicted, is unconstitutional. All of them concur also in the declaration, that the provision in the constitution was a compromise between the slave-holding, and the non-slave-holding states, to secure to the former fugitive slaves as property. All of the members of the court, too, except my brother BALDWIN, concur in the opinion, that legislation by congress, to carry the provision into execution, is constitutional; and he contends, that the provision gives to the owners of fugitive slaves all the rights of seizure and removal which legislation could give; but he concurs in the opinion, if legislation by congress be necessary, that the right to legislate is exclusively in congress. There is no difference, then, among the judges, as to the reversal of the judgment; none in respect to the origin and object of the provision, or the obligation to exercise it. But differences do exist as to the mode of execution. Three of the judges have expressed the opinion, that the states may legislate upon the provision, in aid of the object it was intended to secure; and that such legislation is constitutional, when it does not conflict with the remedy which congress may enact.

I believe, that the power to legislate upon the provision is exclusively in congress. The provision is, 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 is due.' The clause contains four substantive declarations; or two conditions, a prohibition, and a direction. First, the fugitive must owe service or labor under the law of the state from which he had escaped; second, he must have fled from it. The prohibition is, that he cannot be discharged from service, in consequence of any law or regulation of the state in which he may be; and the direction is affirmative, of an obligation upon the states, and declarative of a right in the party to whom the service or labor of a fugitive is due.

My object, and the only object which I have in view, in what I am about to say, is, to establish the position, that congress has the exclusive right to legislate upon this provision of the constitution. I shall endeavor to prove it, by the condition of the states when the constitution was formed; by references to the provision itself; and to the constitution generally.

Let it be remembered, that the conventioners who formed the constitution, were the representatives of equal sovereignties; that they were assembled to form a more perfect union than then existed between the states under the confederacy; that they co-operated to the same end; but that they were divided into two parties, having antagonist interests in respect to slavery. One of these parties, consisting of several states, required as a condition, upon which any constitution should be presented to the states for ratification, a full and perfect security for their slaves as property, when they fled into any of the states of the Union; the fact is not more plainly stated by me than it was put in the convention. The representatives from the non-slave-holding states assented to the condition. The provision under review was proposed and adopted by the unanimous vote of the convention. It, with an allowance of a certain portion of slaves with the whites, for representative population in congress, and the importation of slaves from abroad for a number of years, were the great obstacles in the way of forming a constitution. Each of them was equally insisted upon by the representatives from the slave-holding states; and without all of them being provided for, it was well understood, that the convention would have been dissolved, without a constitution being formed. I mention the facts as they were; they cannot be denied. I have nothing to do, judicially, with what a part of the world may think of the attitude of the different parties upon this interesting topic. I am satisfied with what was done; and revere the men, and their motives for insisting, politically, upon what was done. When the three points relating to slaves had been accomplished, every impediment in they way of forming a constitution was removed. The agreement concerning them was called, in the convention, a compromise; the provision in respect to fugitives from service or labor, was called a guarantee of a right of property in fugitive slaves, wherever they might be found in the Union. The constitution was presented to the states for adoption, with the understanding that the provisions in it relating to slaves were a compromise and guarantee; and with such an understanding, in every state, it was adopted by all of them. Not a guarantee merely in the professional acceptation of the word, but a great national engagement, in which the states surrendered a sovereign right, making it a part of that instrument, which was intended to make them one nation, within the sphere of its action. The provision, then, must be interpreted by those rules of construction assented to by all civilized nations, as obligatory in ascertaining the rights growing out of these agreements. We shall see, directly, how these rules bear upon the question of the power of legislation upon this subject being exclusively in congress; and why the states are excluded from legislating upon it.

The prohibition upon the states to discharge fugitive slaves is absolute. The provision, however, does not contain, in detail, the manner of asserting the right it was meant to secure. Nor is there in it any expressed power of legislation; nor any expressed prohibition of state legislation. But it does provide, that delivery of a fugitive shall be made on the claim of the owner that the fugitive slave owing service and labor in the state from which he fled, and escaping therefrom, shall be decisive of the owner's right to a delivery. It does not, however, provide the mode of proving that service and labor is due, in a contested case, nor for any such evidence of the right, when it has been established, as will insure to an owner the unmolested transportation of the fugitive, through other states, to the state from which he fled. But the right to convey is the necessary consequence of a right to delivery; the latter would be good for nothing, without the former. Proof of ownership gives both, if it gives either or anything; and yet the right might be, in the larger number of instances, unavailing, if it were not certified by some official document, that the right had been established. A certificate from an officer authorized to inquire into the facts, is the easiest way to secure the right to its contemplated intent. It was foreseen, that claims would be made, which would be contested; some tribunal was necessary to decide them, and to authenticate the fact, that a claim had been established. Without such authentication, the contest might be renewed in other tribunals of the state in which the fact had been established; and in those of the other states through which the fugitive might be carried, on his way to the state from which he fled. Such a certificate too, being required, protects persons who are not fugitives from being seized and transported; it has the effect of securing the benefit of a lawful claim, and of preventing the accomplishment of one that is false. Such a certificate, to give a right to transport a fugitive slave through another state, a state cannot give; its operation would be confined to its own boundaries, and would be useless to assert the right in another sovereignty. This analysis of the provision is given, to show that legislation was contemplated to carry it fully into effect, in many of the cases that might occur; and to prevent its abuse, when attempts might be made to apply it to those who were not fugitives. And it brings me to the point I have asserted, that congress has the exclusive right to legislate upon the provision.

Those who contend, that the states may legislate in aid of the object of the provision, admit that congress can legislate to the full extent to carry it into execution. There is, then, no necessity for the states to legislate. This is a good reason why they should not legislate; and that is was intended that they should not do so; for legislation by congress makes the mode of asserting the right uniform throughout the Union; and legislation by the states would be as various as the separate legislative will and policy of the different states might choose to make it. Certainly, such an interest as the constitution was intended to secure, we may well think the framers of the constitution intended to provide for by a uniform law. I admit, however, that such considerations do not necessarily exclude the right of the states to legislate. The argument in favor of the right is, that the states are not, in express terms, prohibited from legislating, and that the exclusion is not necessarily implied. I further admit, if it be not necessarily implied, that the right exists. Such is the rule, in respect to the right of legislation by the states, in all cases under the constitution, when the question of a right to legislate in merely such.

My first remark is, and I wish it to be particularly observed, that the question is not one only of the right of the states to legislate in aid of this provision, unconnected with other considerations bearing directly upon the question. The true question in the case is, by what rules shall the compromise or guarantee be construed, so that the obligations and rights of the states under the provision may be ascertained and secured. It is admitted, that the provision raises what is properly termed a perfect obligation upon all of the states to abstain from doing anything which may interfere with the rights secured. Will this be so, if any part of what may be necessary to discharge the obligation is reserved by each state, to be done as each may think proper? The obligation is common to all of them, to the same extent. Its object is, to secure the property of some of the states, and the individual rights of their citizens, in that property. Shall, then, each state be permitted to legislate in its own way, according to its own judgment, and their separate notions, in what manner the obligation shall be discharged to those states to which it is due? To permit some of the states to say to the others, how the property included in the provision was to be secured by legislation, without the assent of the latter, would certainly be, to destroy the equality and force of the guarantee, and the equality of the states by which it was made. This was not anticipated by the representatives of the slave-holding states in the convention, nor could it have been intended by the framers of the constitution. Is it not more reasonable to infer, as the states were forming a government for themselves, to the extent of the powers conceded in the constitution, to which legislative power was given to make all laws necessary and proper to carry into execution all powers vested in it-that they meant, that the right for which some of the states stipulated, and to which all acceded, should, from the peculiar nature of the property in which only some of the states were interested, be carried into execution by that department of the general government in which they were all to be represented-the congress of the United States.

But is not this power of legislation by the states, upon this provision, a claim for each to use its discretion in interpreting the manner in which the guarantee shall be fulfilled? Are there no rules of interpretation, founded upon reason and nature, to settle this question, and to secure the rights given by the provision, better than the discretion of the parties to the obligation? Has not experience shown, that those rules must be applied to conventions between nations, in order that justice may be done? All civilized nations have consented to be bound by them; and they are a part of the laws of nations. Is not one of those rules, the maxim, that neither one or the other of the interested or contracting powers has a right to interpret his act or treaty at his pleasure? Such is the rule in respect to the treaties and conventions of nations foreign to each other. It applies, with equal necessity and force, to states united in one general government. Especially, to states making a provision in respect to property peculiar to some of them, which has become so interwoven with thier institutions and their representation in the general government of all of them, that the right to such property must be maintained and guarded, in order to preserve their separate existence, and to keep up their constitutional representation in congress. Such cannot be the case, unless there is uniformity in the law for asserting the right to fugitive slaves; and if the states can legislate, as each of them may think it should be done, a remedy, by which the right of property in fugitive slaves is to be ascertained and finally cencluded. Nor does it matter, that the rule to which I have adverted as being exclusive of the right of the states to legislate upon the provision, does not appear in it. It is exactly to such cases that the rule applies, and it must be so applied, unless the contrary has been expressly provided. The mode of its application is as authoritative as the rule. The rule, too, applies to the provision, without any conflict with the other rule, that the states may legislate in all cases, when they are not expressly or impliedly prohibited by the constitution. The latter rule is in no way trenched upon, by excluding the states from legislating in this case. This provision is the only one in the constitution in which a security for a particular kind of property is provided; provided, too, expressly against the interference by the states in their sovereign character. The surrender of a sovereign right carries with it all its incidents. It differs from yielding a participation to another government, in a sovereign right. In the latter, both may have jurisdiction. The state yielding the right, retaining jurisdiction to the extent of doing nothing repugnant to the exercise of the right by the government to which it has been yielded.

But it is said, all that is contended for, is, that the states may legislate to aid the object, and that such legislation will be constitutional, if it does not conflict with the remedies which congress may enact. This is a cautious way of asserting the right in the states, and it seems to impose a limitation which makes it unobjectionable. But the reply to it is, that the right to legislate a remedy, implies so much indefinite power over the subject, and such protracted continuance, as to the mode of finally determining whether a fugitive owes service and labor, that the requirements of the remedy, without being actually in conflict with the provision or the enactments of congress, might be oppressive to those most interested in the provision, by interposing delays and expenses more costly than the value of the fugitive sought to be reclaimed. Ordinarily, and when rightly understood, it is true, that the abuse of a thing is no argument against its correctness or its use; but that suggestion can only be correctly made, in cases in support of a right or power abstractly and positively right, and which had been abused under the pretence of using it; or where the proper use has been mistaken. In matters of government, however, a power liable to be abused is always a good reason for withholding it. It is the reason why the powers of the United States, under the constitution, are so cautiously given; why the express prohibitions upon the states not to legislate in certain cases were expressed; why the limitation upon the former, that the powers not granted are reserved to the states, as it is expressed in the amendment to the constitution. But in truth, any additional legislation in this case by a state, acting as a remedy, in aid of the remedy given by the constitution and by congress, would be, in practice, in conflict with the latter, if it be a process differing from it; though it might make the mode of recovering a fugitive easier than the former, and much more so, when it made it more difficult. The right to legislate a remedy implies the ability to do either; and it is because it does so, and may be the latter, that I deny all right in the states to legislate upon this subject; unless it be to aid, by mere ministerial acts, the protection of an owner's right to a fugitive slave; the prevention of all interference with it by the officers of a state, or its citizens, or an authority to its magistrates to execute the law of congress; and such legislation over fugitives as may be strictly of a police character.

Admit the states to legislate remedies in this case, besides such as are given by congress, and there will be no security for the delivery of fugitive slaves in half of the states of the Union. Such was the case when the constitution was adopted. The states might legislate in good faith, according to their notions how such a right of property should be tried. They have already done so, and the act of Pennsylvania, now under consideration, shows, that the assertion of a right to a fugitive slave is burdened by provisions entailing expenses disproportioned to his value; and that it is only to be asserted, by arraying against the claim all of those popular prejudices which, under other circumstances, would be proper feelings against slavery.

But the propriety of the rule of interpretation which I have invoked, to exclude the states from legislating upon this provision of the constitution, becomes more obvious, when it is remembered, that the provision was not intended only to secure the property of individuals, but that through their rights, the institutions of the states should be preserved, so long as any one of the states chose to continue slavery as a part of its policy. The subject has usually been argued as if the rights of individuals only were intended to be secured, and as if the legislation by the states would only act upon such rights. The framers of the constitution did not act upon such narrow grounds; they were engaged in forming a government for all of the states; by concessions of sovereign rights from all, without impairing the actual sovereignty of any one, except within the sphere of what was conceded. One great object was, that all kinds of property, as well that which was common in all of the states, as that which was peculiar to any of them, should be protected, in all of the states, as well from any interference with it by the United States, as by the states. Experience had shown, that under the confederacy, the reclamation of fugitive slaves was embarrassed and uncertain, and that they were yielded to by the states only from comity; it was intended, that it should be no longer so. The policy of the different states, some of them contiguous, had already become marked and decided upon the subject of slavery; there was no doubt, it would become more so. It was foreseen, that unless the delivery of fugitive slaves was made a part of the constitution, and the right of the states to discharge them from service was taken away, that some of the states would become the refuge of runaways; and, of course, that in proportion to the facility and certainty of any state being a refuge, so would the right of individuals, and the institutions of the slave-holding states, be impaired. The latter were bound, when forming a general government with the other states, under which there was to be a community of rights and privileges for all citizens in the several states, to protect that property of their citizens which was essential to the preservation of their state constitutions. If this had not been done, all of the property of the citizens would have been protected, in every state, except that which was the most valuable in a number of them. In such a case, the states would have become members of the Union upon unequal terms. Besides, the property of an individual is not the less his, because it is in another state than that in which he lives; it continues to be his, and forms a part of the weath of his state. The provision, then, in respect to fugitive slaves, only comprehended within the general rule a species of property not within it before. By doing so, the right of individuals, and that of the states in which slavery was continued, were preserved. It remained in the states, as a part of that wealth, from which contributions were to be raised by taxes laid with the consent of the owners, to meet the wants of the state as a body politic. If this be so, upon what principle shall the states act, by their legislation, upon property, which is national as well as individual; and direct the mode, when it is within their jurisdiction, without the consent of the owners, and without the fault of the states where the owners reside, how the right of property should be ascertained and determined. The case of a fugitive slave is not like that of a contest for other property, to be determined between two claimants, by the remedy given by the tribunals of the state where the property may be. It is not a controversy between two persons, claiming the right to a thing, but the assertion by one person of a right of property in another, to be determined upon principles peculiar to such relation. If the provision had not been introduced into the constitution, the states migth have adjudged the right, in the way they pleased; but having surrendered the right to discharge, they are not now to be allowed to assume a right to legislate, to try the obligation of a fugitive to servitude, in any other way than in conformity to the principles peculiar to the relation of master and slave. Their legislation, in the way of remedy, would bear upon state as well as individual rights; and I am sure, when the constitution was formed, the states never intended to give any such right to each other. If it has such an effect, I think, I may rightly conclude, that legislation in the case before us is forbidden to the states.

But I have a further reason for the conclusion to which I have come upon this point; to which I cannot see that an answer can be given. The provision contemplates, besides the right of seizure by the owner, that a claim may be made, when a seizure has not been effected, or afterwards, if his right shall be contested; that the claim shall be good, upon the showing by the claimant that the person charged as a fugitive owes service or labor, under the laws of the state from which he fled. The prohibition in the provision, is, that he shall not be 'discharged, in consequence of any law or regulation of a state' where he may be. If then, in a controverted case, a person claimed as a fugitive, shall be discharged, under a remedy legislated by a state, to try the fact of his owing service or labor, is he not discharged under a law or regulation of a state? It is no answer to this question, to say, that the discharge was not made in virtue of any law discharging the fugitive from servitude; and that the discharge occurred only from the mode of trial to ascertain if he owed service and labor. For that is to assume, that provision only prevented discharges from being made by the states, by enactment or law, declaring that fugitive slaves might be discharged. The provision will not admit of such an interpretation. Nor is it any answer to say, that state regulations to ascertain whether a fugitive owes service or labor, are distinguishable from such as, directly or by construction, would lead to his discharge; for if a discharge be made under one or the other-whether the discharge be right or wrong, at is a discharge under the regulation of a state.

I understood the provision to mean, and when its object and the surrender by the states of the right to discharge are kept in mind, its obvious meaning to every one must be, that the states are not only prohibited from discharging a fugitive from service, by a law; but that they shall not make or apply regulations to try the question of the fugitive owing service. The language of the provision, is, 'no person, &c., shall, in consequence of any law or regulation therein,' be discharged from such service or labor. The words 'in consequence,' meaning the effect of a cause certainly embrace regulations to try the right of property, as well as laws directly discharging a fugitive from service. If this be not so, the states may regulate the mode of an owner's seizing of a fugitive slave, prohibiting it from being done except by warrant and by an officer; thus denying to an owner the right to use a casual opportunity to repossess himself of this kind of property, which there is a right to do, in respect to all other kinds of property, where not in the possession of some one else. It may regulate the quantity and quality of the proof to establish the right of an owner to a fugitive, and give compensatory and punitory damages against a claimant, if his right be not established according to such proof. It might limit the trial to particular times and courts; give appeals from one to other courts; and protract the ultimate decision, until the value in controversy was exceeded by the cost of establishing it. Such rights of legislation in the states to try a right of property in a fugitive slave, are surely inconsistent with that security which Judge IREDELL told the people of North Carolina, in the convention, that the constitution gave to them for their slaves, when they fled into other states. Speaking of this clause of the constitution he says, 'In some of the northern states, they have emancipated all of their slaves; if any one of our slaves go there, and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again; this would be extremely prejudicial to the inhabitants of the southern states; and, to prevent it, this clause is inserted in the constitution.' To the same purpose, and with more positiveness, Clarles Cotesworth Pinckney said to the people of South Carolina, in the convention of that state, 'we have obtained a right to recover our slaves in whatever part of America they may take refuge; which is a right we had not before.'

But further, does not the language of this provision, in the precise terms used, 'shall not be discharged from such service or labor,' show, that the state surrendering the right to discharge, meant to exclude themselves from legislating a mode of trial, which, from the time it would take, would be a qualified or temporary discharge to the injury of the owner? Would not a postponement of the trial of a fugitive owing service or labor, for one month, be a loss to the owner of his serive, equivalent to a discharge for that time? And if a state can postpone, by legislation, the trial for one month, may it not do so for a longer time? And whether it be for a longer or a shorter time, is it not a discharge from service, for whatever time it may be? It is no answer to this argument, to say, that time is necessarily involved in the prosecution of all rights. The question here is not as to a time being more or less necessary-but as to the right of a state, by regulations to try the obligation of a fugitive to service or labor, to fix in its discretion the time it may take.

The subject might be further discussed and illustrated by arguments equally cogent with those already given. But I forbear! For the foregoing reasons, in addition to those given in the opinion of the court, I am constrained to come to the conclusion, that the right of legislating upon that clause in the constitution, preventing the states from discharging fugitive slaves, is exclusively in the congress of the United States. I am as little inclined as any one can be, to deny, in a doubtful case, a right of legislation in the states; but I cannot concede, that it exists, under the constitution, in a case relating to the property of some of the states in which the others have no interest; and whose legislators, from the nature of the subject, and the human mind in relation to it, cannot be supposed to be best fitted to secure the right guarantied by the constitution.

I had intended to give an account of the beginning and progress of the legislation of the states upon this subject; but my remarks are already so much extended, that I must decline doing so. It would have shown, perhaps, as much as any other instance, how a mistaken, doubtful and hesitating exercise of power, in the commencement, becomes, by use, a conviction of its correctness. It would also have shown, that the legislation of the states in respect to fugitive slaves, and particularly that which has most embarrasssd the recovery of fugitive slaves, has been in opposition to an unbroken current of decisions in the courts of the states, and those of the United States. Not a point has been decided in the cause now before this court, which has not been ruled in the courts of Massachusetts, New York and Pennsylvania, and in other state courts. Judges have differed as to some of them, but the courts of the states have announced all of them, with the consideration and solemnity of judicial conclusion. In cases, too, in which the decisions were appropriate, because the points were raised by the record.

I consider the point I have been maintaining, more important than any other in the opinion of the court. It removes those causes which have contributed more than any other to disturb that harmony which is essential to the continuance of the Union. The framers of the constitution knew it to be so, and inserted the provision in it. Hereafter, they cannot occur, if the judgment of this court in this cause shall meet with the same patriotic acquiescence which the tribunals of the states and the people of the states have heretofore accorded to its decisions. The recovery of fugitive slaves will hereafter be exclusively regulated by the constitution of the United States, and the acts of congress.

Apart from the position that the states may legislate in all cases, where they are not expressly prohibited, or by necessary implication; the claim for the states to legislate is mainly advocated upon the ground, that they are bound to protect free blacks and persons of color residing in them from being carried into slavery by any summary process. The answer to this is, that legislation may be confined to that end, and be made effectual, without making such a remedy applicable to fugitive slaves. There is no propriety in making a remedy to protect those who are free, the probable means of freeing those who are not so. It is also said, the states may aid, by remedies, the acts of congress, when they are not in conflict with them. I reply, congress has full power to enact all that such aid could give; and if experience shows any deficiency in its enactments, congress will no doubt supply it. If there are not now agencies enough to make the assertion of the right to fugitives convenient to their owners, congress can multiply them. But if it should not be done, better is it that the inconvenience should be borne, than that the states should be brought into collision upon this subject, as they have been; and that they should attempt to supply deficiencies, upon their separate views of what the remedies should be to recover fugitive slaves within their jurisdictions.

I have heard it suggested also, as a reason why the states should legislate upon this subject, that congress may repeal the remedy it has given, and leave the provision unaided by legislation; and that then the states might carry it into execution. Be it so; but the latter is not needed, for though legislation by congress supports the rights intended to be secured, there is energy enough in the constitution, without legislation upon this subject, to protect and enforce what it gives.

title: Prigg v. Pennsylvania/Concurrence Wayne