Herald and Expositor
In the Supreme Court of Penn’a.
Decision of Slave Case.
Kauffman plaintiff in Error.}Error to Cumberland Country
Oliver, et al.
This action is instituted at common law, leans upon it for support, and invokes the aid of its principles to sustain its objects and result. The sweeping generality of the two counts in the declaration of the plaintiff and the instruction of the court, would leave [illegible] to infer that Kauffman, the defendant, had proceeded to the State of Maryland and there seduced the alleged slaves from their servitude; brought them to the State of Pennsylvania, and there concealed them, so that the owners could not reclaim or recapture them. This mode of stating this case throws around it some air of plausibility, although it makes no difference in the application of the law which the judgment of the Court deems fit and suitable to control and decide. But the testimony does in nowise warrant, or authorize such general conclusions. Giving to it the most ample verge, it amounts to this and no more:--That the alleged slaves had been removed from Arkansas to the State of Maryland in February, 1846, from which State they escaped during the night in October, 1847. John M. Stake, the relative of the plaintiffs below, their agent and witness, stated that he would rather have their value, than recapture the fugitives ; two of whom were men, one with a stiff arm; two women, three boys, and the rest, amounting to thirteen in al, were girls; three of them so tender and age, that the rest were obliged to carry them. Coal, a negro, and witness for the plaintiff, testifies that he found these persons in Chambersburg, and took them away as a friend; to help them along and prevent them from being taken.-They told him, as he testified, that they had been slaves in Maryland, and that they were to be sold, and that to prevent their sale, they made their escape. He took them in the night to Shippensburg, from that to Miller’s Furnace, and finally to Kauffman, and put them in his barn in the morning and shut the door and called Kauffman, who inquired what was the matter. Coal told him to come to the barn and he should see. When Coal showed him the negroes in the barn, Kauffman told him to take them away, more than once; but finally agreed to let them stay till night and agreed to give them something to eat. Coal then went to Butler, a negro, and gave his wife notice that he, Coal, wished to go home. That evening the negroes were hauled away in Kauffman’s wagon; but to what place is not stated in the evidence--. The wagon was returned in the night; who was the drives is not stated; but it appears not to have been Kauffman, who was standing at the end of the barn when the wagon started. Several neighbors having heard that negroes were there, went to see them some were witnesses and others not, Gutshall, a witness for the plaintiff, testified to his cross-examination, that John M. Stake offered him one hundred dollars if he would swear that Daniel Kauffman hauled the negroes away, and he said he didn’t car a damn about the negroes if he could get Kauffman. This was said at [illegible] Spring Tavern; [Illegible] Brown and Samuel Crall were present.
These are the striking and almost the only merits of the case developed by the testimony, except some proof of ownership, and the sum and substance of the evidence—From it no glimmering of fact or circumstance is perceived to warrant a conclusion that Kauffman enticed the fugitives to run away, or that they were enticed to do so by any human being. On the contrary, it appears from that evidence, as given on behalf of the plaintiff, that the negroes were prompted to fly at any hazard, by their fear of being sold, and perhaps and almost inevitably to be separated—mothers from their children, and husbands from their wives and [illegible] [illegible]. Prompted by the vast longings of the heart for kindred by nature, they were [illegible] to seek freedom, through danger and peril, rather than endure slavery among strangers and oppressors.
I wave all inquiry as to a point made on the records, to wit—whether the Court did not err by instructing the jury in the language to wit: “But if Kauffman was acting with others, in [illegible], who indeed these negroes to escape from the service of the plaintiff and his acts [illegible] a link in the chain to accomplish that object successfully, then he is liable as if he had done it all inasmuch as there is no evidence, as alleged by defendant, to warrant any such instruction. I waive it, not because it is of [illegible] magnitude, but for a reason that I will state presently; and for the same reason I waive all observation upon the bills of [illegible] taken to evidence by the defendant. I will observe, however, that the true question in this aspect of the cause ought to be and is whether in the State of Pennsylvania a citizen who gives a cup of cold water and a morsel of bread to [illegible] women and children, and permits them to rest a few hours in his barn, when they are [illegible] to his mercy, and even gives them a lift in his wagon, even if it should turn out that they are fugitives from Slavery to freedom, does by that offer of mercy and compassion break the law, and make himself liable for their price in the mart where men, women and children are bought and sold-whether he is bound to let them perish on his own land, or drive, them all to die on the land of his neighbor? Are they outcasts from the law of mercy and humanity, although they have within them that ray, if from Divinity, which we call a soul, and are sensible to hopes and fears, to agony and despair?
But we turn to another aspect of the case; which present a question which concerns the sovereignty of the State—the independence of its tribunals and the character of the common law—a question which overmasters all minor permits presented on the record.
The defendant pleaded to the jurisdiction of the Court.
Pennsylvania reverently acknowledges and elites to the compact of union, as declared in the Constitution of the United States. Her bright [illegible] of good faith to that compact will never be soiled by her [illegible] or tarnished by her people. That constitution recognizes slaver to the State under whose municipal and local regulations it exists. But at the time of its adoption, it was a compromise of conflicting interests, on many subjects, and none more emphatically so than on the subject of slavery.—Then Pennsylvania was a free State. In 1780, the Legislature, in grateful commiseration of her then certain prospect of escaping from the house of bondage and the hand of the oppressor; and as the preamble to the act recites, in consequence thereof being freed from the narrow prejudices they had [illegible], and feeling their hearts enlarged with kindness and benevolence to men of all conditions –[illegible]: nations,” abolished slavery within her borders as to pull people thereafter born within her limits. From that time she has been deemed and taken as a free State, and as such assented to the contract of union.
Slavery, then, is recognized and enforced here by virtue of that compact alone. The voice of her own policy proclaims, so far shalt thou go, but no farther. The language of that compact is—“No person held to service in one State under the laws thereof, escaping into another, shall in consequence of any law of regulation therein be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service of labor may be due.”—Upon claim [illegible] by the person to whom service is due, the [illegible] shall be delivered up. To whom shall this claim, be made?—Undoubtedly to the person or persons who shall have the alleged slave in custody or who shall attempt to [illegible] him from the owner to whom the services are due. And as by the compact, the slave is not discharged from his serve by escaping into a few State the owner or his authorized agent may pursue and take him, without riot or beach of the peace by [illegible] or reprisal, in any place where the compact is obligatory just in the same manner as if the reception was in the slave territory. Sovereignty is so far yielded by the free States, and so far the constitutional provision execute itself. But if the fugitive is harbored, protected, enticed, or concealed by an persons, the owner must make the claim in a legal manner and by legal process, according to the constitution of the laws of the United States. The mode, manner, and circumstances of such claims are fully set forth in the act of Congress of 1793, and the means of making such claims effectual are therein provided.
Congress have regarded this claim, to the service of the fugitive, as a right of property, and that is the only light in which it can be viewed, and which must be made by one person or persons against another person or persons, and property to be attested in a court of justice. It is, therefore, a controversy between parties, arising under the constitution and laws of the United States, and must be referred to the forum having [illegible] of such controversies. The Constitution of the United States declares, that the judicial power of the courts of the United States shall extend to all cases in law and equity, arising under the constitution and laws of the United States, &c. This cause of action, good or bad, is within the jurisdiction of the United States courts, for Congress have power to pass all laws necessary to make the claim efficacious and commensurate with the constitutional provision. But it must be done through the courts over which Congress have power, and through their instrumentality, otherwise the claim might: be rendered abortive, by the decision of the State courts pursing their own local policy. The claim ought primarily, to be asserted in courts whose decision should conclude the subject of dispute, and not in a foreign forum, adverse to the whole process; if it pursues the feelings and policies of its own laws, and the principles of the common law. The provisions, of the act of Congress must be pursued in the tribunals of the united States. There they meet with no warfare by local legislation, or municipal peculiarities. And the person claiming the service of the fugitive is in the forum of that sovereignty and [illegible] under which, the claim is made. Within the terms of the compact and within the act of Congress, we acknowledge the validity of the claim when made in the proper forum. But outside the compact we breath more freely. We feel the genial influence of the common law on this subject. The principles sprung fresh and beautiful and perfect from the mind of Lord Mansfield in the great case of the negro Semersett, that by the common law, a slave, of whatever country or color, the moment he was on English ground, because free—endued with sanctity of reason. This case was decided before the Revolution, and became the common law of this State, always, saving and excepting the inroad of the compact and compromise. This action, then, professes to be founded on the principles of the common law. But by the principles of that law, the fugitives were free the moment when they touched the soil of Pennsylvania. All the incidents, [illegible], and attributes of bondage tell from around them. By that law, even persuading the fugitives to fly, would be no offence in Pennsylvania, whatever it might be in Maryland. But the act of Congress in the 4th section, which specified the acts for which damages may be [illegible] and the penalty incurred, does not, [illegible] that of [illegible] negroes to run away; and we must gather the [illegible] and intent of the legislative power, as well from what they do [illegible] say, as from that which they do say.
It was ruled in the Circuit Court of the U. States for the district of Ohio, that if a slave escape from free State, he is free according to the principles of the common law, and recapture in a free State is justified only by the compact, in the constitution, and the act of Congress. And it was held in the same case that damages for harboring and concealing a slave in a free State are not recoverable at the common law. [illegible] vs. Jones, 2d Mclean, 596. It was also ruled in the same case, that the saying in the 4th section of the act of Congress, of the owner’s right of action [illegible] [illegible] the same ground as the embraced by the acts for which the penalty is inflicted to his action for damages, on account of the same acts for which the penalty is inflicted, but of course in the same forum.
So that the plaintiff here is unaided by that provision upon which he placed some reliance. The damages are the same injuries, and the action for the penalty might as well be maintained at the common law, as the action for the damages. Neither can it be maintained outside of the act of Congress. I admit that a free State, although not behind to enforce in its rituals the slavery of another sovereignty, and thus render itself subservient to the policy of another State in opposition to our own, yet it may do so if it will. But it will be a matter of capacity, and not as a matter of right or duty.
In the year 1826, the Legislature of this State, for the purpose of acting in the accomplishment of the compact to deliver fugitives when claimed, passed an act enjoining upon upon State magistrates and judges the duty of acting and prescribing the manner in which the duty should be discharged.—This act of capacity was conceived in a just and fraternal spirit; only throwing around the fugitives [illegible] safeguards, to prevent kidnapping under color of law. This act, however, was declared unconstitutional, bu the Supreme Court of the UnitedState, in the case of Prigg vs. the Commonwealth of Pennsylvania, [illegible] Peters, [illegible] in which case it was resolved that the act was null and void—that Congress possesses the exclusive right to legislate on the subject and that State Legislatures have no right whatever.—In [illegible] it is fully held, that the power of Congress is adequate to all the emergencies of the subject and if it has not identified them it may, and perhaps will. This is the supreme law of the land on the subject.—State Legislatures are bidden back, as introducing into forbidden places. But it is intimated that although State magistrates and judges are not compelled , that nevertheless they may act, if it is not contrary to the policy of the State. On this point, there is some diversity among the judges; but I have stated the opinion of the majority. Very well go let it be. The policy of this State is indicated in the act of 1780, in the act of 1826, and in the feeling, and principles and government of the State.
Under these circumstances, [illegible] Courts are interdicted from assuming a voluntary jurisdiction, since the act of 1826 has been repudiated and thrown out of Court, as the decisions of our tribunals might, and perhaps would be, against the claims of the owner of the fugitives. After all consideration, this Court is of opinion, that an action of this kind can only be sustained under the act of Congress of 1793.
That our State Courts have no jurisdiction of action the statute.
And the principle of the Common law do not sustain any such action in this State.
The plea to the jurisdiction is therefore sustained, and the judgment of the Court of Common Please of Cumberland County, for &2000, is revered.