In re Kirk , 1 Park. Cr. 67 ( 1846 )

Edmonds, Circuit Judge. —

When this boy was before me on a former occasion, no principle of law was involved, but mainly a question of fact, arising out of the return. On the present occasion it is quite otherwise. The question now presented is, the constitutionality and consequently the validity of a statute of our state.

It is not from any choice on my part, that I am called upon to consider this question. If my wishes had been consulted, the case would have remained with the mayor, until he had decided it; and even then, 1 should have been much better pleased, if the review of his decision had been committed to some functionary whose other duties would have allowed him more leisure than I can command to examine it. But the party had a right to bring the matter at once before me; under our statute, 1 was bound to allow the writ of habeas corpus, even if I had been fully convinced of the legality of the imprisonment; and the return made to the writ, necessarily raising the question to which I have alluded, it becomes my duty to consider and decide it — a duty from which I am not at liberty to shrink, and which I hope I may be able to discharge, without partaking of the excitement which has surrounded the question from the beginning.

It is conceded on the record that George is a slave, owing service to a master in Georgia; that without the consent of his owner, and without the knowledge of the officers or owners of the vessel, he concealed himself on board the brig Mobile, in the port of Savannah, for .the purpose of securing a passage to New York; that his being on board was not discovered by the officers of the brig until they had been at sea two days on their return voyage, and had got without the territory of Georgia; that as soon as he was discovered, he was arrested and confined until his arrival in this port, and that on his arrival, the master of the vessel took him before the mayor, to the end that he might obtain from the mayor a certificate which shall warrant him in returning the boy to the port of Savannah; that the owner of the slave does not demand him,under the constitution and laws of the United States, but he is demanded by the claimant, simply by virtue of his station as master of the vessel, and by virtue of a provision of our statutes.

Such are the facts of this case. The law applicable to it, is to be found in § 15,1 Rev. Stat. 659, which enacts that whenever any person of color, owing labor or service in any other part of the U. States, shall secrete himself on board of a vessel lying in any port or harbor of such state, and shall be brought into this state in such vessel, the captain or commander thereof may seize such person of color and take him before the mayor or recorder of the city of New York. The officer before whom such person shall be brought, shall inquire into the circumstances, and if it appear, upon proper testimony, that such person of color owes service or labor in any other state, and that he did secrete himself on board of such vessel without the knowledge or consent of the captain or commander thereof, and that by so doing he subjected such captain to any penalty, such officer shall furnish a certificate thereof to such captain or commander, which shall be a sufficient warrant to him to carry or send such person of color to the port or place from which he was so brought as aforesaid.

It must constantly be borne in mind that the question before me does not grow out of, nor is it in any way connected with an attempt on the part of the owner of the slave to enforce his rights under the constitution of the United States and the law of congress of 1793, but arises -solely out of a state statute, which authorizes another person, in no respect connected with the owner of the slave, nor acting by his authority, to retrans-port him from our territory to the place where he had been held in bondage, and where again he may be returned to bondage.

In other words, while the constitution of the United States gives to the party to whom the service or the labor may be due, the right to reclaim his servant, and the law of congress extends that right to the agent or attorney of such party, it is claimed that the state legislature has a right to interpose and extend the right to a third person, not acting for or by authority of the owner, but merely because he was the commander of a vessel on which the slave may have concealed himself, and because by such concealment, the commander may have become liable to a penalty.

Such is the authority which the mayor has been called upon to exercise, and which it is insisted has not been, and can not be conferred upon him by the state legislature.

Two objections áre raised to this claim of authority:

1. That the provision of the revised statutes authorizing the proceeding has been virtually repealed by an act of our legislature, passed in 1840.

2. That if it has not been repealed, it is repugnant to the constitution of the United States, and therefore inoperative and void.

The conclusion to which I have arrived on this point renders an examination of the first unnecessary.

The section of the revised statutes under consideration is part of title VII of chap. 20, of the first part, which is entitled, “Of the importation into this state of persons held in slavery, of t'heir exportation, of their services, and prohibiting their sale;” and is a revision of the act of 1817, entitled “ An Act relative to slaves and servants.”

The 30th section of the act of 1817, which contains the provision which has been’ incorporated into this 15th section of the revised statutes, is preceded by a recital that “ whereas persons of color owing service or labor in other states, sometimes secrete themselves on board of vessels while such vessels are lying in the ports or harbors of other states, and thereby subject the commanders thereof to heavy fines and penalties.” And it is worthy of observation, that the act of 1817 as well as this title of the revised statutes, aims at prohibiting the exportation as well as the importation of slaves, and that while the act of 1817 abolishes slavery after the 4th of July, 1827, the revised statutes declare that every person born in this state shall be free, and every person brought into this state as a slave, except as authorized by this title, shall be free.

It may well be questioned whether, as this slave was brought into this state in a manner not authorized by the revised statutes, he did not thereby, under our law, become ipso fado, free, and whether this proceeding before the mayor is not, therefore, in effect, a proceeding to carry a free citizen into bondage But I do not consider that point, as it was not raised before me in the argument, was not discussed, and is not necessary to the decision of the question before me.

The broad question discussed, and which I am called upon to decide is, whether our state legislature have authority to pass this law.

The point has never, as far as I can learn, been decided, or even agitated in our state, and it is presented to me not only as a new one, but in the imposing form of requiring from me a decision that a law of our state is repugnant to the constitution of the United States, and therefore void. Fully aware of the diffidence with which courts should always entertain such questions, I approach this with all the caution becoming the gravity of the case, yet with a lively sense of what is due to personal liberty and the fraternal relations existing among the members of the Union.

As I have already mentioned, the statute under consideration was first enacted in 1817, and was subsequently re-enaeted and went into effect as part of the revised statutes, in 1830. In 1834, the supreme court of this state, in Jack v. Martin (12 Wend. 311), held that the law of congress, in regard to fugitive slaves, was supreme and paramount from necessity; that so far as the states are concerned, the power, when thus exercised, is exhausted, and though the states might have desired a different legislation on the subject, they can not amend, qualify, or in any manner alter it; that though the act of the state might not be in direct repugnance to the legislation of congress, it does not follow that it is not in legal effect; that if they correspond in every respect, then the latter is idle and inoperative; if they differ, they must, in the nature of things, oppose each other so far as they do differ; that a fair interpretation of the terms in which the provision of the constitution is expressed, prohibits the states from legislating upon the question involving the owner’s right to this species of labor; and that while the larv of congress, thus passed, exists, the power of the states is suspended, and, for the time, is as inoperative as if it had ne/er existed.

The case of Jack v. Martin, was carried to our court for the' correction of errors and the judgment of the supreme court was affirmed. Though the reasons given for the decision in the ceurt of last resort, as reported in 14 Wend. 507, differ from those given in the court below, the positions of the supreme court, as I have extracted them, were in no respect disturbed, but have ever since remained, and are now the law of the land, governing the courts and citizens of this state.

In 1842, the supreme court of the United States, in Prigg v. Pennsylvania (16 Peters, 539), had the same question before them. ' It arose out of various statutes which that state as well as New York and other northern states had from time to time been enacting on the subject of slavery, and which contained, among other things, provisions very like.ours in regard to slaves who had absconded from other states

Story, J.,

in delivering the opinion of the court, declares that the law of congress may be truly said to cover the whole ground of the constitution, not because it exhausts the remedies which may be applied, but because it points out fully all the modes of attaining the object which congress have as yet deemed expedient or proper to meet the exigencies of the constitution. And he adds:

If this be so, then it would seem upon just principles of construction that the legislation of congress must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it. For, if congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner and in a certain form, it can not be that the state legislatures have a right to interfere, and, as it were by way of compliment to the legislation of congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case the legislation of congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject matter. This doctrine was fully recognized by the court in Houston v. Moore (5 Wheat. 1), where it was expressly held that where congress have exercised a power over a particular subject given them by the constitution, it is not competent for state legislation to add to the provisions of congress upon that subject.

This is the supreme law of the land, which I am bound to obey, and is applicable to the case before me in this aspect, that while congress, in the exercise of its constitutional power over fugitives from Service, has given the right to retake and reconvey them to the place of service, to the party to whom the service is due, his agent or attorney, the state legislation adds to the provision of congress on that subject, by conferring the power of recapture and reconveyance upon the commander of a vessel on board of which the fugitive may have concealed himself.

If it may add, may it not diminish? And if state legislation once begins, where is it to end, and what bounds are to be set to it, but state discretion? Well, indeed, did our supreme court repudiate the idea that the framers of the constitution intended to leave the regulation of this subject to the states, when the provision itself obviously sprung out of their fears of partial and unjust legislation by the states in respect to it.

While this construction of the constitution — though recent in its promulgation, yet old as the instrument itself — was conceded on all hands during the argument before me, it was contended that our statute did not fall within its destroying influence, because it was only a police regulation, and therefore legitimately within the scope of state authority.

In 16 Peters, 625, Story, J., qualifies the decision of the supreme court of the United States, by saying that they were not to be understood in any manner to doubt or interfere with the police power belonging to the states, in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the states, and is distinguishable from the right and duty secured by the provision of the constitution under consideration.

It becomes, therefore, material to inquire what is the police power here alluded to, and does our statute justly and properly fall within its scope ?

In 16 Peters, the same learned judge speaks of this power as conferring full jurisdiction on the states to arrest and restrain runaway slaves, and remove them from their borders and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course; and in many cases the operations of this police power, although designed essentially for other purposes, for the protection, safety and peace of the state, may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave, or with the remedies prescribed by congress to aid and enforce the same.

In New-York v. Milne (2 Peters, 139), Mr. Justice Barbour, in delivering the opinion of the court, applies this test to determine the nature of the power: Did it belong to the state before the adoption of the constitution ? has it been taken from the states and given to congress? or does it fall within that immense mass of legislation which embraces every thing within the territory of a state not surrendered to the general government ? And the power then under consideration was held to be of that “ mass,” because its place of operation was within the territory, and therefore within the jurisdiction of the state; because the person on whom it operates was found within the same territory and jurisdiction; because the persons for whose benefit it was passed were the people of the state; because the purpose to be attained was to secure the protection of that people, and because the means used were just, natural and appropriate to those ends.

Complaint was made during the argument, that this police power was exceedingly vague, uncertain and Undefinable, and hence, I suppose, an inference was to be deduced that I ought to regard the claim of power with little favor at least. In the very nature of things it must be difficult, in few, or perhaps in many words, to define the power; for it comprehends an immense mass of legislation, inspection laws, quarantine laws, health laws, internal commerce, roads, ferries, &c.

Yet, immense as is this mass, and various as are the interests embraced in and affected by it, it seems to me that the rules laid down by the Supreme Court of the United States, as I have already quoted them, and the tests which they provide, are plain and simple and easy to be understood, and in their application to this case entirely decisive and satisfactory in the result to which they lead us.

To apply, first, the rules given us in the case of Prigg, in 16 Peters:

The police power “ extends over all subjects within the territorial limits of the state,” yet our statute does not confine its operation within our limits, but provides, in case the fugitive is from another state, for the return of the fugitive back to the place whence he fled.

We “ may remove slaves from our borders to secure ourselves against their depredations.” To transport the slave to Canada or Connecticut would effect this purpose, yet that is not allowed by our statute. He must in compliance with,its command, be returned only to his place of bondage.

“ The rights of the owners are not to be interfered with or regulated.”

Yet, what is a compulsory return of the slave, with or without his owner’s consent, to the place whence he fled, but an interference with or regulation of the master’s right to control his movements and govern his person 1

The state regulation is, “ not to interfere with the remedy prescribed by congress.” Congress has limited the power of recaption to the owner, his agent or attorney, but oúr state law has removed that limitation. Congress has protected the rights of the owner, by securing the reclamation to him and those appointed by him, yet our statute gives to the commander of the vessel the power of transporting the slave beyond even the reach of the owner.

Such is the result of the rule furnished us by Judge Story, The application of Judge Barbour’s tests will be found equally satisfactory and conclusive.

Is the power exercised in this statute one “ embracing a matter within the territory of the state, not surrendered to the government, and which can be most advantageously exercised by the state V’ It can not be most advantageously exercised by this state. It can not, indeed, be exercised at all without the consent of the state from which the slave fled. Suppose that any slave state should forbid the return to its territory of a fugitive slave, could our law commanding his return be enforced 1 It could be only enforced by the national government.

We are to look at the place of its operation to see that the statute operates within the territory óf New York; yet the main object of this statute plainly is, not the removal of the slave from our borders, but his return to the place whence he fled, involving of necessity the operation of our statute, without our territory and without our jurisdiction. Could it be more so if it provided that every vagrant arrested in our streets should be transported to and abandoned in the streets of Savannah”?

We are next to look upon the person on whom it operates, to see that he 'is within the same territory and jurisdicton; yet this statute must of necessity, operate both on the slave and the commander of the vessel more out of the state than in it. We are next to look at the persons for whose benefit it was passed, to see that they are the people of our state. Yet this statute does not confine the power of recaption to the commanders of vessels, being citizens — it confers it on all commanders, reside where they may.

We are next to turn our attention to the purpose to be attained, to see that it is to secure that very protection and provide for that very welfare. The argument is, that this statute had its origin in the desire to protect our citizens from the evil example of having slaves among us; yet that very statute prohibits the removal of slaves from our territory by high penal enactments; and surely if the welfare of our citizens and their security from the evil example of slavery were the object in view, it could be attained as well and far more easily by transporting the slave to a free state, which it prohibits, than to a slave state, which it absolutely commands. ■

And lastly we are to examine the means by which these ends are to be attained, so that they bear a just, natural and appropriate relation to those ends. There is no special pleading, no refinement of reasoning, that can disguise from a common understanding the fact that the whole object of the statute was to ailow the commander of the vessel to protect himself .byretaking and returning the fugitive; and the means used, namely, the examination and adjudication by the mayor, and his certificate, were natural and appropriate to that end, and to none other. If any other end had been in view — if the protection of our people at large had been aimed at — there would have been something compulsory in the law, something obligatory on the captain to afford us the desired protection. But every thing is left to his discretion. If he pleases he may retake, and, after retaking, if he pleases, he may return the slave to the place whence he fled. If the captain should chance not to be a citizen of this state, it would be difficult to discover how it could benefit this state; yet under no circumstances would it be difficult to see how it could benefit the owner to have his fugitive servant placed again within his reach. In every aspect in which I view this statute, I can not help regarding it as intended and calculated to aid in returning a fugitive slave to his master: and it seems to me that the claimant in this case, and his counsel, have so understood the law, and have acted accordingly. .Else why was the boy confined on board the vessel after her arrival here? Why does the captain plead his obligation to the laws of Georgia, when those laws compel him to return the boy to his owner? Or why, when George was making every effort, with the assistance of numerous friends, to escape from the state, did the captain invoke the aid of the police to arrest those efforts; and Avhy does he now press this claim, but that he may do that which the constitution and laws of the United States declare shall be done only by the party to whom the service is due, or his agent or attorney? I do not allude to these considerations for the purpose of even implying a censure upon the commander of the vessel or his owners; but solely with a view of drawing from his acts, and those of his A'ery respectable counsel, the consolation justly fioAving, that he and they do, in effect and from necessity, understand our statute precisely as I do, namely, in the language of the United States supreme court, as by way of compliment to the legislation of congress, prescribing additional regulations, and what they deem auxiliary provisions for the same purpose.»

It must have occurred to all who have given this subject much consideration, as it has to me, to observe the extreme watchfulness with which this provision of our national constitution has been regarded by our courts. It is not worth my while to pause and inquire into the cause or the propriety of this. It is enough to know that whenever any state legislation, attempting to intermeddle with the question, has come before our highest courts, it has without ceremony been swept from the statute book. Our statute regulating and controlling the master’s right of reclamation, and allowing to the alleged slave the benefit of the writ of homine replegiando, fell before the decision of our supreme court in Jack’s case. The laws of Pennsylvania, running through a period from 1780 to 1826, and containing a provision like that now under my review, were overturned by the supreme court of the United States in Trigg’s case; and I only discharge my duty — obey, indeed, merely one of its plainest and most simple dictates — by declaring that the rule of law thus laid down by the highest judicial tribunals in the country, and whose decisions I am bound to respect and to enforce, is applicable to the statute in question, and being applicable renders the statute null and void, and the arrest and detention of Kirk under it improper.

It will be observed that I have omitted to discuss many considerations which were pressed upon me during the argument The view which I have taken of the case rendered their discussion unnecessary, but I will briefly allude to one topic, because, if the danger apprehended were to ensue, it would be the only cause of regret which I should experience growing out of this case. I allude to the penalty which it is averred may fall upon the captain in case of his return to Georgia. I can not persuade myself that there is any cause for the fear.

The slave was concealed on board his vessel without his knowledge or consent. He was not discovered until the limits of Georgia had been passed, and to have returned then to Savannah would not only have vitiated the captain’s insurance, but have rendered him liable in an action to the boy; and since his arrival in this port, he has resorted to every means which our law allows to return him to his place of servitude. And if he shall be finally defeated in his attempts, it will not be from any want of eiforts on his part, but from a determination on the part of the authorities of this state, to avoid state usurpation, and to maintain the constitution as it has been interpreted by the highest tribunals in the country. It can not be, that, under such circumstances, he can have any thing to fear from the penal enactments of Georgia.

If, however, contrary to all just calculation, those fears should yet be realized, our regard for the individual may not warp the law from its uprightness, though it may well excite our regrets that its integrity can not be maintained without the infliction of unmerited suffering. This boy must at all events be discharged. The law allows it and the court awards it.