Eells v. People, 5 Ill. 497, 4 Scam. 497 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 497, 4 Scam. 497

Richard Eells v. The People of the State of Illinois.

Error to Ada?ns.

1. Slavery — indictment for secreting. In an indictment for secreting a negro slave, it is not necessary to allege the name of the slave ; it is a sufficient description to aver him to be “a certain negro slave, the property of one A B.” •

2. Same. In such an indictment it is unnecessary to allege a scienter, ^(a)

3. Same. The essence of the offence of harboring or secreting a slave is the attempt to defraud the owner of his property.

4. Words — harbor and secret. The words “harbor and secret” have, by long usage in connection with the subject of secreting slaves, acquired a specific meaning, which includes both act and intention.

5. Indictment — in words of statute. An indictment which states the offence in the exact langnage of the statute, or so plainly that the nature of the offence may be easily understood by the jury, is sufficiently technical and correcet.

6. Police power — of state. The police power of a state embraces the power of regulating the whole of the internal affairs of the state, in its civil and criminal polity. The state of Illinois has power to prevent the introduction of negro slaves into the state, and to punish those of its citizens who introduce them. ^(b)

7. Same — fugitive slaves. A state has the right to legislate on the subject matter of fugitive slaves, and that right is not taken away by the legislation of congress on the same subject; but it seems, the states are prohibited from passing any law which may interfere with the right of the master to the services of his fugitive slave.

■ 8. Constitutional law — secreting slave. So much of § 149 of the criminal code of the state of Illinois, as provides for punishing any person who shall secret a negro slave or colored servant, is not in conflict with-the third paragraph of § 2 of article IV. of the constitution of the United States, nor does it, interfere either with the remedy given by congress jfor the recovery of the slave, or the mode of prosecuting that remedy. It neither aids nor impedes the owner in the reclamation of his property; it merely acts upon our own citizens, and prescribes a rule of conduct for them. ^(c)

9. Same — -punishing offences, legislative, duty. A state has the power to define offenses and punish offenders, and the necessity for the exercise of its powers cannot be enquired into in a court of justice.

The plaintiff in error was indicted, tried, and convicted in the Adams circuit court, at the April term, 1843. A motion was made in arrest of judgment, which was overruled, and the plaintiff in error sentenced to pay a fine of $400 and the costs of the prosecution.

The cause was beard'before the Hon. StepheN A. Douglass.

Geo. C. DixoN (with whom was James H. OolliNs), for the plaintiff in error.

The law of congress, of 1793, is precisely analogous, in its provisions, to the state law. 1 Story’s U. S. Laws 285.

The constitutional provision is found in Div. 3, § 2, Art. 4 of U. S. Const. R. L. 28.

First. We say the indictment is fatally defective in not averring that the defendant knew that the person harbored was a slave. Birney v. State of Ohio, 8 Ohio 237-8.

Second. The law under which the indictment is found is unconstitutional, and therefore void, for the following reasons:

1. The law of congress, of 1793, is constitutional, because :

• 1. It is a contemporary exposition of the constitution, and therefore entitled to great weight and distinguished con- [* 499] sideration. 1 Story’s Com. on Const. § 405; 1 Cranch 309 ; 12 Wend. 323; 3 Scam. 470 ; 1 Peter’s Cond. R. 317; 6 Wheat. 418; 2 Pick. 19; 5 Serg. & Rawle 64.

2. The power ought to be in congress to prevent conflicting and hostile legislation among the states. State laws have no extra territorial operation; and in passing through different states, different and perhaps adverse processes might be necessary. Conflict, and perhaps a subversion of the public peace, might ensue. Story’s Conflict of Laws 75 ; 5 Wheat. 69 ; 16 Peters 623-4.

3. It ought to be in congress, to prevent this constitutional provision becoming a dead letter. Suppose the several free states should refuse to legislate upon the subject, would not this species of property remain inadequately protected ? And,

4. It is constitutional, because the United States supreme court, in solemn decision, has so decided it, (16 Peters 620-22, 637,) and because the following authorities have declared to the same effect. 9 Johns. 67 ; 12 Wend. 507, 311; 2 Pick. 11; 5 Serg. & Rawle 62; 2 Wheeler’s Crim. Cases 594.

II. We say that the subject of fugitive slaves, from one state,to another, is one vested exclusively in congress. 16 Peters 622-3, 638-41, 661.

III. Admitting that the power is concurrent, we insist that the exercise of the power, by congress, suspends and supersedes ah state legislation upon the subject. 1 Kent’s Com. 389-91; 1 Story’s Com. on Const. §§ 437-43; 12 Wend. 316-25; 1 Peters’ Cond. R. 429; 4 Peters’ Cond. R. 414-15; 2 Wheeler’s Crim. Cases 594; 5 Wheat. 21-4, 36, 70-5; 14 Wend. 532-36; 16 Peters 617-18.

IV. The law of congress and the state law conflict with each other.

1. They operate upon precisely the same subject matter; the same identical offence is legislated upon.

2. The United States law inflicts a penalty; the state law fine and imprisonment.

3. The United States law gives the penalty to claimants ; the other gives the fine to the county treasury. R. L. Grim. Code, § 161.

,4. The United States law speaks of harboring after notice of the fact of being a fugitive; the state law is silent on this subject.

5.- The United States law requires knowledge and wilfiilness; the other does not. And,

6. They both provide punishment for the same offence.

Y. Two laws springing from distinct sources, legislating over the same offence, cannot exist at the same time, in full force, under our constitutions of government.

1. The law of congress being within its constitutional jurisdiction, whether that jurisdiction is exclusive or concurrent, is supreme, as we have before proven. [* 500]

2. It would violate the federal and state constitutions, providing that no person shall be twice tried for the same offence.

3. We say that the offence described in this indictment is precisely such an offence as is indictable under the law of congress ; and, if so, what exists to prevent another prosecution and conviction for this same offence.

4. We cannot be punished until we have violated some law. What law have we violated? We answer, the law of congress ; and we say further, had we been tried and convicted under the United States law, the record of conviction would have been an absolute bar to this action.

5. Gould the president pardon a conviction under this state law ? It is a, doubtful question.

VI. If the above positions are correct, then it follows that this law is suspended and entirely inoperative ; and it is the duty of this court so to declare it (1 Kent’s Com. 448-54 ; 1 Peters’ Oond. R. 283; 3 Seam. 240) ; because,

1. That portion of the state law affecting this case extends to fugitive slaves fleeing from one state to anpther; and it is this branch of the law alone that we are now considering.

2. A law may be unconstitutional, and of course void in relation to particular cases, and yet valid, to all intents and purposes, in its application to other cases within the scope of its provisions, but varying from the former in particular circumstances. 1 Peters’ Dig. 562, § 39; 3 Scam. 470; 6 Craneh 87.

VII. It may be, and it is said, that our laws provide for punishing offences against the coin of the United States, and bank bills of United States Bank, and that these are analogous cases.

We reply, that in every such case, the power is expressly reserved to the states, by the law of congress itself. As to United States coin, see 2 Story’s Laws of U. S. 1032-3 § 74; Crim. Code of Ill. As to United States’ bank bills, see 3 Story’s laws U. S. 1558; §§ 18, 68 of Crim. Code of Ill.

VIII. Again, it is said that this law is merely a police regulation, designed for the conservation of the internal peace of the state, and therefore- not within the reach of the federal constitution. This is the strong position of our opponents, and we will examine it as fully as is within our power.

“ By the public police and economy, I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good, neighborhood, and good manners; and to be decent, industrious and inoffensive in their respective stations.” 3 Tomlin’s Law Diet, article Police. See also 4 Blac. Com. 162; 2 Webster’s

Diet, word Police,; and also 10 Amer. Ency. article Po~ [*501 ] lice, where the definitions are all essentially the Same. This state law is not a police regulation; because,

1. By the English common law and American law slaves removing from a slave into a free state become absolutely free, excepting so far as slave property is protected by the constitution. Story’s Conflict of Laws 92, § 96. ■

2. By the ordinance of 1787 and the constitution of this state slavery cannot exist among us independently of the United States constitution. R. L. 44, 57.

3. Slavery is the mere creature of the municipal law in those states where it is tolerated, and has an extra territorial operation. 2 J. J. Marsh. 470; 18 Pick. 211, 214-15, 219, and cases cited; 16 Peters 611 — 12.

4. The portion of the state law under consideration provides for slaves fleeing from another state. This affects other states; its subject matter is connected with other states; it is a regulation to benefit other states; to protect that which is property there, but not here; it has reference to intercourse between the states and between citizens of different states, and bears the impress of an internatipnal character. 11 Peters 137-40; 16 Peters 657-8; 18 Pick. 222-24.

5. We admit that that portion of the law applying to fugitives owing service and labor to a person resident in the state is in force and is purely a police regulation; and this illustrates the line of demarcation between state and federal jurisdiction, and demonstrates that this is not a mere police law. 2 Peters’ Dig. 378, § 5; 1 Wash. G. C. R. 449; 4 Wash. O. C. R. 396; 18 Pick. 221, and see further, 16 Peters 622-3; 638-41, 661; 1 Kent’s Com. 436-7,439; 5 Wheat, above referred to; 5 Peters’ Cond. R. 569-70; 16 Peters 625, 632-3, 643-4, 650, 65Í-8.

IX. It may be well to remark on the situation in which slavery exists, independently Of the United States constitution, in the several free states, as respects their connection with slave states.

We have seen by the English and American law that slaves removing from a slave into a free state become free, excepting so far as slave property is protected by the federal constitution. We have seen also that the ordinance of 1787 prohibits slavery, and that our state constitution does not affirmatively introduce it. And we have also seen that slavery is the mere creature of municipal law, and has no existence beyond such protection.

From these we conclude,

1. That the free states are under no constitutional obligation to furnish the legal means to reclaim fugitive slaves, as eongress is entrusted with the power; and in her assembled wisdom, representing every state in the Union, and acquainted with every interest, she can best judge what law is requisite and what legal means are required. 5 Wheat. 67; 1 Kent’s P5021 Com. 403-4.

2. And it may be doubted whether any state is under any constitutional obligation to lend her courts and judges, or magistrates, to aid a law of Congress concerning fugitive slaves, as eongress possesses no compulsory powers to enforce obedience over the states; and is invested with ample power by the constitution to provide courts and instruments to carry her own laws into execution, by her own officers and tribunals; these are the constitutional appointments for this purpose. 5 Wheat. 67; 1 Kent’s Com. 403-4; 1 Dana 442; 3 Missouri 44.

3. And I believe it will be found decidedly preferable for the states, for the slaveholders, for the security of slave property, for the harmonious action of the government, and for the peace of the country, to permit congress to exercise entire control and government over the matter, unaffected by state authority or legislation.

4. In such a view, upon a subject on which conflicting opinions are entertained, there ought to be no angry feeling between slave and free states bordering each other, because one state may not legislate upon the subject. The slaveholder ought to look with confidence to the shield which the constitution throws around his property. And,

5. The idea of crimination and recrimination, of retaliation, conflagration, and unlawful depredation will only inflame passion, exasperate prejudice, and lead to border war and bloodshed, and result inevitably in shaking the security and consequently depreciating the value of slave property. The power of congress is ample for every beneficial purpose, and we ought to rely upon its wisdom and patriotism with the most explicit confidence.

J. A. McDoug-all, attorney general, for the defendants in error :

The indictment in this cause contains five counts, the fifth charging that the slave was a fugitive from service in the state of Missouri. There was a general motion to quash, which was sustained as to one count, and overruled as to the remainder; plea of not guilty, and conviction generally. It is contended

First. That if one of the counts was good the court properly overruled the motion to quash.

Secondly. That one of the counts upon which the defendant was tried being good the finding of the jury was sufficient, and judgment not erroneous.

As several of the counts do not aver that the slave was a fugitive, if these propositions be correct the question of conflict between the federal constitution and laws and the 149th section of our criminal code does not arise upon the record; but as the question is one of great practical importance, and one that should be definitely settled, it would perhaps be an an act of wisdom in 503] this court to place the question beyond controversy. It is contended on the part of the defendant, that our state law is unconstitutional and void, as to fugitives from service and labor in other states, for the reason,

First. That our law, taken in connection with the act of congress of 1793, provides two punishments for one offence.

This position is sufficiently answered by reference to the two laws in question, neither of which places life or limb in jeopardy. The better answer however is, that there is but one punishment for one offepce. A legal offence is the breach of a law ; the defendant in harboring a fugitive slave violated a law of this state, by interfering with its internal policy; he also violated a law of Congress, by interfering with the rights of the slave owners secured by the constitution. The one act constitutes two distinct offences against the different laws of different governments. One act frequently constitutes two offences. An assault is an offence against the law protecting' the person assaulted, punished by exemplary damages ; it is also an offence against the law preserving the general peace, punished by fine and imprisonment; the same is true of publishing a libel. In the case at bar, one law protects our state institutions, the other the slave owner abroad; one act is a breach of both, and. constitutes two clearly distinct offences.

Second. The state law is unconstitutional, for the reason that the exclusive power of legislation upon the subject of fugitive slaves was surrendered to congress by the constitution.

•, If this power were admitted tobe exclusively in congress, it would not follow that the state law was void, as it does not operate upon the fugitive, or affect the rights of his owner; but the defendants in error deny the entire proposition. The constitution secures to the owner a right to pursue and recapture his slave, and inhibits the states, into which the fugitives may have escaped, from passing any laws interfering with that right. The constitution does not specify what authority shall enforce the claim of the owner, and the only inhibition upon the state authority is'the ■one above referred to. The constitution having secured a right to the owner, and it being the supreme law of the land, an obli-gati on rests upon the entire government, and each and every of its integral parts; upon every state, and each citizen of every state, to aid in the enforcement of that right. That a state in obedience to that obligation, may not exert its authority involving a strange and alarming paradox; but as it exists only in the argument of counsel, never having received the sanction of a judicial decision, its obvious absurdity is its sufficient answer. ■

Third t If under the constitution, the power to enforce the right of 'the slave owner was concurrent in the federal and state governments, the federal government, by exer- [* 504] cising its power, has superseded the power of the states.

This position "assumes that power over the same subject cannot at the same time be exerted by the federal and state governments, an assumption repelled by the legislative history of the Union from the formation of the federal constitution until the present period. The true rule in relation to this subject is laid down by Mr. Hamilton, in the 32d number of the Federalist, in which he uses the following language: “ An entire consolidation of the states into one complete national sovereignty would imply an entire subordination of the parts, and whatever powers might be supposed to remain in them would be altogether dependant on the general will; but as the plan of the constitution aims only at a partial union, or consolidation, the state governments would clearly retain all the rights of sovereignty, which they had before, and which are not by that act exclusively delegated to the United States. This exclusive delegation, or rather declaration of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in the other prohibited states from exercising the like authority ; and where it granted an authority to the Union to which a similar authority in the states would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another which might appear to resemble it, but which would be, in fact, essentially different. I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences on the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.”

In Houston v. Moore, Justice Story recognises the same rule. “ The constitution, containing a grant of powers similar to the states, and in many instances, vital to state authority; it is not to be admitted that the grant per se transfers an exclusive sovereignty to congress; on the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the states, except where the constitution has in express terms given exclusive power to the general government, or denied it to the states, or where there is a direct repugnancy between the general government and state laws.”

The power, the exercise of which by this state is questioned in the case at bar, has not been in terms exclusively delegated to congress; it has not been denied to the states; and is not opposed- to, or in collision with, any law of congress. The'law of congress and of this state can both be executed, and indeed it is not possible that the execution of one can interfere with the execution of the other. There is then no direct repug- [* 505] nancy, and by the rule of the Federalist and Justice Story, the law is constitutional and valid.

This conclusion is denied by the defendants upon the authority of Jack v. Martin, 12 and 14 Wend., and of Prigg v. Pennsylvania, 16 Peters. In both of these cases it will be observed that the act of state legislation declared void was in direct conflict with the constitution and the laws of congress; the repugnancy was' direct. The constitution and laws of congress authorize the slave owner to recapture his fugitive slave, and without any judicial investigation to return with him to the place from whence he escaped. The law of New York questioned in Jack v. Martin, authorized an interference with the claim of the owner by providing for a seizure of the slave by virtue of the writ de homine replegicmdo, and a trial of the question of freedom in the state courts. In the Pennsylvania case the law in question declared the owner who seized his slave in Pennsylvania, and carried him beyond the limits'of the state, guilty of kidnapping, and inflicted a severe penalty for the act. This was declaring the exercise of a right secured by-law of congress, a crime by the laws of Pennsylvania.

The decisions in both of these cases correspond with the rule which we recognise as truly defining the boundaries between the state and national authority, the doctrine of the court beyond the points determined has not the weight of authority, and is only to be regarded as the opinion of so many learned judges. The clear, and as we think, conclusive opinion of Chief Justice Taney, in Prigg v. Pennsylvania, 16 Peters 627 — 32, is in perfect accord-anee wit'll the view we have taken of this question, and-the same view is sustained by the opinion of the court in Houston v. Moore, 5 Wheat. 29,32; Justice Johnson’s opinion, Ibid. 33-6. For the rule contended for, the defendant’s counsel rely upon the opinion of Chief Justice Marshall, in Sturgis v. Crowningshield, and of Justice Story, in the Pennsylvania case. Upon an examination of Chief Justice Marshall’s opinion in the case referred to, it appears that he expressly states that no question of conflict between concurrent powers arose; of course none was decided. Justice Story, apparently conscious that in liis argument he had traveled beyond the limits of precedent and authority, concludes with the following most marked and extensive qualification, which, fairly interpreted, covers the whole ground occupied by the appellees: “ To guard, however, against any forcible misconstruction of our views, it is proper to state that we are by no means to be understood, in any manner whatsoever, to doubt or to interfere with the police power belonging to the states in virtue of their sovereignty; that police power extends over all subjects within the territorial limits of the state, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now [* 506] under consideration, which is exclusively derived from and secured by the constitution of the United States, and owes its whole efficacy thereto. We entertain no doubt whatsoever, that the states, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise secure themselves against their depredations and evil examples, as they certainly may do in cases of idlers, vagabonds, and paupers; the rights of the owner of fugitive slaves are in no just sense interfered with or regulated by such a course, and, in many cases, the operation of the police power, although designed essentially for, other purposes, for the protection, safety, and peace of the state, may essentially aid and promote the interest of the owner. But such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim the slave derived from the constitution of the United States, or with the remedies prescribed by congress to aid and enforce the same.” From these remarks the conclusion inevitably follows, that the states, by virtue of their inherent sovereignty, may pass laws operating directly upon the slaves, and directly affecting their relations and conditions, while within their respective territories, so that the constitutional rights of the owner be not interfered with, which is all that is contended for.

Tliis state, in passing the law in question, did not look to the federal constitution for the charter of its power, but to that general sovereignty, which, in the language of Justice Story just quoted, “extends over all subjects within the territorial limits of the state, and has never been conceded to the United States.”

The question is one of power — of power to provide for the punishment of a certain act; if the power exists, no matter from whence derived, the law is good. A bare statement of the operation of this law would seem to put this question at rest.

First. It punishes an act done within our territorial limits.

Second. It punishes a citizen within our territories, and subject to our jurisdiction.

Third. It does not operate upon the slave or the slave owner, and consequently affects neither the condition of the one, nor the rights of the other.

Was it competent for the legislature of this state to punish such an act? Mr. Madison, in number 43 of the Federalist, says: “The power of the states extend to all the objects which, in the ordinary course of affairs, concerns the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the states.”

The supreme court of the United States, in the City of New York v. Miles, 11 Peters 139, holds that “A state has the same undeniable' and unlimited jurisdiction over all persons [*507] and things, within its territorial limits, as any foreign nation, where the jurisdiction is not surrendered or restrained by the constitution of the United States; that all those powers which relate to municipal legislation, or what may more properly be called internal police, are not surrendered or restrained, and in relation to them the authority of the state is complete, unqualified, and exclusive. We would say that every law carne within this description which concerned the welfare of the whole people of the state, or any individual within it, and the operation of which was within the territorial limits, and upon persons within its jurisdiction.’.’ In the same case, 11 Peters 137, the court further says, “While a state is acting within the legitimate scope of its power, as to the end to be attained, it may use whatever means, being appropriate to that end, it may think fit, although they may be the same, or so nearly the same as scarcely to be distinguished from those adopted by congress, acting under a different power, subject only to this limitation, that in the event of collision, the law of the state must yield to the law of congress.”

The law in question then, “ operating within the territorial limits, upon a person within the jurisdiction,” is the exercise of that power which has not been surrendered or restrained, and in relation to which the authority of the state is complete, unqualified and exclusive, and if congress, acting under a different power, has passed a law nearly the same, the state law is not thereby impaired.

At the time our law was passed, slavery existed, and it even now exists, to a limited extent, in this state, but the. institution, as well as a free negro population, was discouraged ; penalties were enforced upon those who employed negroes from other states, unless they complied with certain .conditions ; it was the policy of the state to prevent slaves or free negroes being brought here. In furtherance of that policy, it was competent for the legislature to provide a punishment for the citizen who should encourage a slave to come into the state, or who should harbor him when here. If it was competent for the state legislature to pass the law, with this or any other view, the law is valid; if the power exists anywhere, its exercise cannot be questioned. What was the object of our legislators, whether the same that moved congress to pass the law of 1793, or one local to the state, is not material; congress has protected, perhaps she was bound to protect, the slave owner. The legislature of our state had a broader charter, a more extended commission ; it was its duty to protect the general interests of the state, to preserve its institutions unimpaired; to prevent the influx of a vagabond population, and for these purposes, generally, to govern the conduct of its citizens. The law of congress may stand firm upon its narrow basis, but certainly the law of this state, resting [*508] upon the broad platform of state sovereignty, is no less secure. If, indeed, it should come to be determined that a state may not regulate the conduct of her own citizens, may not inhibit such acts within her own territories as she deems adverse to the public weal, then “state .sovereignty” would be a name only, and state legislatures but the tenants at sufferance of the omnipotent congress.

(a) Cases Citing Text. Indictment need not allege scienter, unless in* ent is element of crime charged. McCutcheon v. People, 69 Ill. 601, 605.

(b) Statute of 1853 prohibiting immigration of negroes into State held valid under Constitution of 1848. Nelson v People, 33 Ill. 390, 396.

(c) See thirteenth amendment to Con. stitution of the United States. R. S. 1874 p. 17; S. & C.’s Stats, p. 38.

Shields, Justice,

delivered the opinion of the court: The plaintiff in error was indicted in the circuit court of Adams county, for harboring and secreting a negro slave. The indictment contained several counts.

The first count charges, “that Richard Eells, on etc., at etc., a certain negro, the same being a slave of the state of Missouri, and owing service to one Chauncy Durkee, of said state of Missouri, then and there in said county of Adams, unlawfully did secrete,” etc.

The second count charges “ that said Eells, on etc.; at etc., a certain negro slave, owing .labor to one Chauncy Durkee, and being the property of the said Chauncy Durkee, then and there did harbor,” etc.

The third count charges “ that the said Eells, on etc., at etc., a certain other negro slave, owing labor in the state of Missouri, and having secretly fled from such state, and from the said Chauncy Durkee, his master, then and there unlawfully did secrete,” etc.

The fourth count charges “that the said Eells, did unlawfully secrete a negro slave.” And,

The fifth count charges “ that the said Eells, on etc., at etc., a certain other negro slave, of and from the state of Missouri, and having fled from the custody of one Chauncy Durkee, and .owing service to the said Chauncy Durkee, of said state of Missouri, the said Chauncy Durkee then and there being the lawful owner of said negro slave, then and there in the said county of Adams, unlawfully did prevent the said Chauncy Durkee, being the lawful owner of said slave as aforesaid, from re-taking him, the said slave, in a lawful manner, by secreting him, the said negro slave, contrary to the form of the statute in such case made and provided,” etc.

A motion was made by the defendant below to quash this indictment. The court sustained the motion as to the fourth count, and overruled it as to the others. The defendant then pleaded not guilty. A trial was had and a verdict of guilty returned by the jury. The defendant entered his motion in arrest of judgment. The court overruled the motion, and rendered [*509] judgment against him, and assessed his fine at the sum of $400. To reversethis judgment the defendant prosecuted his writ of error to this court, and assigns for error the judgment of the court.

First. In not sustaining the motion to quash the indictment;

Second. In not sustaining the motion in arrest of judgment.

In reviewing the decision of the court below upon the motion, the objections made to the form of the indictment will be first considered.

The first objection which appears in the record, is the omission to insert the name of the slave in the indictment, ' He is described as “a certain negro slave,” the property of Chauncy Durkee, a resident of Missouri, and it is objected that this description is not sufficient. This omission does not affect in any degree the rights of the defendant. Upon a second trial for the same offence, he can give parol proof of the identity of the slave, and this proof would be equally necessary, in such case, if the name of the slave were inserted in the indictment. The description would be held sufficient in an indictment for larceny, and is therefore sufficient in an indictment like the present.

The next objection is also a formal.one, and is founded upon the want of an allegation of the scienter in the instrument. It is said the defendant, to be guilty of the offence, must have knowledge of the fact that the person harbored or secreted was, at the time, a slave, and the propertj of another, and that this knowledge must be averred in the indictment, and proved on the trial. The case of Birney v. The State of Ohio, 8 Ohio, 238, is cited in support of this position. The court in that case says, that “ This knowledge should have been averred in the indictment, and proved on'the trial, for without such knowledge, the act charged as a crime was innocent in its character.” This reasoning is based on the supposition that knowledge of the fact that the negro is a slave, and the property of another, constitutes the essence of the offence. This supposition is incorrect. The mere knowledge of this fact is not the essence of the offence. It may be an act of humanity, in many cases, to afford shelter and succor to a slave, while knowing him to be a slave, and the property of another. The essence of the offence consists in the attempt to defraud the .owner of his property ; and the words harbor and secrete have, by long usage in connection with this subject, acquired a specific meaning, which includes both act and intention. This court has taken this view of the signification of these words, in the case of Chambers v. The People, ante 351, decided at the present term. This obvious signification of these words was wholly overlooked by the supreme court of Ohio, in the case referred to, and the decision is therefore of little authority in any court which desires to apply the principle of construction recognised by the usage of those states which are accustomed to legislate upon the subject. This indictment is, besides, in the exact language [*510] of the statute, and our law expressly provides that every indictment shall be considered sufficiently technical and correct, which states the offence in the terms and language of the code, or so plainly that the nature of the offence may be easily understood by the jury. The objections therefore to the form of the indictment are not tenable.

The next objection is of a more serious nature. It is insisted that the law upon which the indictment was framed is void, being in conflict with the third paragraph of the 2d section of the 4th article of the federal constitution, which declares that no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” This prohibits the states from passing any law which may interfere with the right of the master to the service of his fugitive slave. Such a law would be absolutely void. The right of the master to his slave is as perfect in'the state' in which the fugitive is found, as in the state from which he has fled. He can seize and re-capture him, if the same can be done without a breach of the peace.

In the case of Prigg v. The Commonwealth of Pennsylvania, Judge Story, who delivered the opinion of the majority of the court, says: “ Upon this ground we have not the slightest hesitation in holding that, under and in virtue of the constitution, the owner of a slave is clothed with entire authority, in every state of the Union, to seize and re-capture liis slave whenever he can do it without any breach of the peace, or any illegal violence.” If the owner cannot recover his slave by re-capture, he must resort to his legal claim or demand, and on such claim the slave is to be “delivered up.” Judge Story, in the same case, says: “They (the owners) require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If indeed the constitution guaranties the right, and if it requires the delivery, upon the claim of the owner (as cannot be doubted), the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it.”

The national government has exercised this authority, and by virtue of an act of congress of the 12th of February, 1793, a uniform remedy, which is perhaps ample and sufficient for the present, is afforded to all claimants of fugitive slaves throughout the Union. Previous to the passage of that law, the fugitive was “ to be given up” on the claim' of the owner, and it was incumbent on the state to see the claim enforced by its own legislation, and its own officers. This duty, it is true, might be neglected by a state. It might disregard its obligation to its sister states. It might refuse to enforce a right which it had recognised, and the [*511] national government could not compel it to act in the premises; but the moral and political obligation of the state, to legislate for the enforcement of this right, would be as-strong and binding as its obligation to legislate in favor of any other right. Judge Story, in the case already alluded to, thinks that the power of legislation on this subject is exclusive in congress. I think his reasoning on this point not entirely conclusive. He says: “Whenever the right was acknowledged, and the duty enforced in any state, it was a matter of comity and favor, and not as a matter of strict moral, political or international obligation or duty.” The right was secured by the national compact. This compact was obligatory upon all the states, and I think it was much more than “a matter of comity and favor;” that it was a matter of strict moral, political and international obligation and duty, which rested upon each state, to enforce the right.

Chief Justice Taney, who concurred with Judge Story, in the decision of the case already referred to, delivered a separate opinion, and his view of this matter seems to be more consonant with that nice and delicate principle, which must be applied to the adjustment of the boundaries of jurisdiction between the state and federal governments. He says: “The words of the article directing 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 that 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?” In this reasoning I heartily concur. The duty of the states to legislate upon the subject, in the absence of all national legislation did not make it necessary by any means for the national government “to rely for the due fulfillment of its own proper duties and the rights which it intended to secure upon state legislation, and not upon that of the Union.

In 1793, congress legislated upon this subject, and it is contended that this national legislation supersedes all state legislation upon the same subject. On this Judge Story says: “If this be so, then it would seem upon just principles of construction, that the legislation of congress, if constitutional, 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 cannot be that the state legislatures 'have a right to interfere, and as [* 512] it were, by way of complement to the legislation of congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose.” If the meaning of this is that the states are prohibited from passing any law repugnant to the provisions of the act of congress, or interfering in any way with the remedy given by that act for the recovery of fugitive slaves, I think it reconcilable with a just apprehension of the legitimate powers of state governments; but if it is intended to mean that a state has no right to legislate on the subject matter of fugitive slaves, merely because congress has already legislated on the same subject, then I am compelled to regard all this reasoning as the mere obiter dicta of a judge, and that, too, on 'a point not properly involved in the case before the court at the time. But the question for the immediate consideration of this court is whether the 149th section of the criminal code of this state is in conflict with that portion of the article in the federal constitution already alluded to in relation to fugitive slaves. This section in the criminal code declares that “if any person shall harbor or secrete any negro, mulatto or person of color, the same being a slave or servant, owing service or labor to any other persons, whether they reside in this state or any other state or territory or district within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every such person so offending shall be deemed guilty of a misdemeanor, and fined not exceeding five hundred dollars, or imprisoned not exceeding six months.” This law does not tend either directly or indirectly to discharge the slave from any service or labor due to the owner. Neither does it interfere .either directly or indirectly with the rights of the master. It is therefore free from any objection to its constitutionality in this respect. It does not interfere either with the remedy given by Congress for the recovery of the slave, or with the mode of prosecuting that' remedy. It neither aids nor impedes the owner in the reclamation of his property. It neither acts upon the master or the slave; the rights or the remedy; it merely acts upon the citizens of our own state. It does not, even, “by way of complement to the legislation of congress,’-’ prescribe additional regulations or auxiliary provisions, for the recovery of the slave, and it must be by a very strained construction — a construction which would lead to the utter annihilation of state sovereignty, by which such a law can be supposed to be unconstitutional. This law prescribes a rule of conduct for our own citizens. If the state can do this, and I hardly think the power questionable, it can punish those who violate the rule. If a state has power to regulate its own affairs, it has the power to define offences and punish offenders. The object which the legislature may have had in view in passing the law is not [*513] a necessary subject of enquiry before this court. It may have been enacted with the intention of deterring our citizens from interfering with the rights of the master to his property in slaves; if so, the object was a legitimate one and wisely intended to check unwarrantable interference with rights which are guaranteed by the sacred compact which holds ns together as a nation. It may have been, and most likely was, to prevent the influx of that most unacceptable population; but it matters not what the object was, the exercise of the power was within the legitimate scope of state authority, and the necessity for its exercise cannot be enquired into by a court of justice. Judge Story, in the opinion so often alluded to, while asserting for congress the exclusive power to legislate in relation to fugitive slaves, fully recognises the power of the states'to legislate in all cases similar to the one now under consideration. “ To guard, however (he says), against any possible misconception of our views it is proper to state that we are by no means to he understood, in any manner whatsoever, to doubt or to interfere with the police power belonging to the states, in virtue of their general sovereignty. That police power extends over all subjects w.ithin the territorial limits of the states, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration,-which is exclusively derived from and secured by the constitution of the United States, and owes its whole efficacy thereto. We entertain no doubt whatsoever that the states, in virtue of their general police power, possess full jurisdiction 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 the 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 operation of the 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 to obstruct the just rights of the owner to reclaim his slave, derived from the constitution of the United States, or with the remedies prescribed by congress to aid and enforce the same.” This qualificatory language of that learned judge covers the case before the court. This power is one of internal police regulation, and that power, as Judge Story says, “ extends over all subjects within the territorial limits of the states.” The police power of a state embraces the power of regulating the whole internal affairs of a state and its civil and criminal polity. In the case of the City of New York v. Miln, 11 Peters 142, Judge Barbour, who delivered the opinion of the court, says: “We think it as competent and necessary fur a state to provide precautionary measures against the [*514], moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported, or from a ship, the crew of which may be laboring under an infectious disease.” If a state can use precautionary, measures against the introduction of paupers, convicts, or negro slaves, it can undoubtedly punish those of its citizens who endeavor to introduce them. This is the power which the state of Illinois has exercised in the enactment of the law under consideration. It is also said that this law may punish a man twice for the same offence. There is no force whatsoever in this objection. The offences are separate and distinct;, violations of distinct and and different laws, and the punishment inflicted by different sovereignties.

It is the opinion of the court that the objections taken to this indictment, and the law upon which it is founded, are not tenable.

The judgment below is therefore affirmed with costs.

Lockwood, Justice,

delivered the following dissenting opinion : I do not concur in the opinion just delivered in this case.

It is declared by the first section of the 6th article of the constitution of this state that “ neither slavery nor involuntary servi-tucle shall hereafter be introduced into this state, otherwise than for the punishment of crimes whereof the party shall have been duly convicted.” And by the first section of the 8th article it is further declared “ That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, and of acquiring, possessing, and protecting property and reputation, and. of pursuing their own happiness.”

From these provisions of the constitution I deduce the following general rule, that all men, whether black or white, are, in this state, presumed to be free, and that every person who claims another to be his slave, under any exception or limitation of the general rule, must clearly show that the person so claimed comes within such exception. The following cases will, it is thought, fully sustain this rule, to wit: Butler v. Hopper, 1 Wash. C. C. R. 499; Ex parte Simmons, 4 Wash. C. C. R. 369; Commonwealth v. Holloway, 2 Serg. & Rawle 305; Lunsford v. Coquella, 14 Martin 465; Commonwealth v. Aves, 18 Pick. 224; Kinney v. Cook, 3 Scam. 233; Bailey v. Cromwell et al. 3 Scam. 73. The same rule of construction is adopted in analogous cases in other countries, “ that is when an institution is forbidden, but when for special reasons, and to a limited extent, such prohibition is relaxed, the exemption is to be construed strictly, and whoever claims the exemption must show himself clearly within it, and when the facts do not bring the case [* 515] within the exemption, the general rule has its effect. Commonwealth v. Aves, 18 Pick. 224.

Mr. Justice Story, 'in delivering the opinion of the supreme court of the United States, in the case of Prigg v. Commonwealth of Pennsylvania, 16 Peters 611, sanctions the same principle. He says: “ By the general law of nations no nation is bound to recog-nise the state of slavery as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognised. If it does it, it is as a matter of comity and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws.”'

I am also of opinion that in an indictment for harboring or secreting a slave, the indictment should aver that the accused had a knowledge of the fact that the person secreted or harbored was a slave. I consider the case of Birney v. The State of Ohio, 8 Ohio 230, as laying down the correct rule on this subject. For the grounds of the decision in the case in Ohio, above cited, I refer to the dissenting opinion I delivered at this term in the case of Chambers v. The People, ante 357. The decision in Ohio was pronounced by a highly respectable court, and in a state whose general policy is similar to ours, and on a statute almost identical^ the same. What good reason can be given for departing from the construction of a similar statute in another state, when it must be conceded that in so doing we violate a long and well settled rule of both civil and criminal pleadings, I am at a loss to conceive. Can this court know but that the court below were governed by the principle that the offence was committed, whether Eells knew that the person harbored was a slave or not? And would not the jury have been justified in coming to such a conclusion if the indictment was good ?

I am also clearly of the opinion that the power of legislation, on the subject of fugitive slaves, is vested exclusively in congress, and that no state can pass any law to super-add to, control, qualify, or impede the remedy given by congress. If it was intended by the legislature, by the 149th section of our criminal code, to punish, under its provisions, the harboring or secreting a fugitive slave, then I hold that the said section would be unconstitutional and void. I further hold that this section, when used for this purpose, cannot be considered as a police regulation. To sustain these positions I rely on the cases of Prigg v. Pennsylvania, 16 Peters 622, and the case of Jack v. Martin, 12 Wend. 311. Justice Story, in his luminous opinion delivered as the opinion of the majority of the court, in the case in 16 Peters617, says: “That if this be so-(that the legislation of congress upon the subject of fugitives from justice and labor covers the whole [* 516] ground) then it would seem upon just principle of construction, that the legislation of congress, if constitutional, must supersede all state legislation, upon the same subject, and by necessary implication prohibit it.” He also says: “In such a case, the legislation of congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be further legislation to act on the subject manner.”

Judge Story argues: “If, indeed, the constitution guaranties the right, and if it requires the delivery upon the claim of the owner (as cannot well be doubted), the natural inference certainly is, that the national government is clothed with the appropriate functions to enforce it.” He further says, that “ The fundamental principle, applicable to all cases of this sort, would seem to be that where the end is required, the means are given, and where the duty is enjoined, the ability to perform it is contemplated to exist, on the part of the functionaries to whom it is entrusted.” In page 622, the same judge says: “ The remaining question is, whether the power of legislation is exclusive in the national legislature or concurrent in the states, until it is exercised by congress. In our opinion it is exclusive, and we shall proceed briefly to state the reasons for that opinion.” Justice Wayne concurred in the opinion of the court, as it had been given by Justice Story. He also gives in his opinion a summary under seven heads of what' that opinion contains. Under the third head he states, “ That no state can pass a law to super-add to, control, qualify, or impede a remedy given by congress.” Under the fourth head he says, “ That the power of legislation by congress is exclusive, and that no state can pass any law, as a remedy upon the subject, whether congress had or had not legislated.” Chief Justice Taney held, “That the owner of a fugitive slave may peaceably seize him, and take him away without a certificate from any officer, and every one that resists or obstructs him is a wrong doer, and every law, either of congress or of a state, that restricts such right is void.” He admits the act of congress, in aid of the owner, is constitutional, and contends that the states may pass laws in aid of the master. He, however, insists that the laws of the different states cannot be supported on the ground that they are police laws. Internal police laws, he contends, are based upon the right to remove from the territory of the state disorderly and evil disposed persons, or those who, from the nature of her institutions, are dangerous to her peace and tranquillity.” He sajrs, “ It would be difficult, perhaps, to bring all the laws I have mentioned within the legitimate scope of the internal powers of police.” Chief Justice Taney also understands the opinion of the court to be, “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 are null and void, even although they [* 517 ] were passed in good faith, to protect the owner in the ex- ■ ercise of his rights of property, and do not conflict in any degree with the act of congress.” Justice Daniel was of opinion that the power to legislate was concurrent. He, however, was of opinion that laws made in aid of the master were not police regulations.

From a careful' examination of this interesting ease, I have arrived at the conclusion that six of the judges of the supreme court of the United States were of the opinion that the power to legislate on the subject of fugitive slaves was vested exclusively in congress, and that even in the opinion of the dissenting judges, our statute could not be considered a police regulation. I am, however, of the opinion that the legislature of this state never intended to embrace the case of fugitive slaves within the provisions of the 149th section of the criminal code. To render .this position clear, it is only necessary to look into the history of our legislation on this subject.

The legislature, at its session in 1822-3, passed a resolution requiring the secretary of state to publish, with the laws passed at that session, a copy of the act of congress in relation to fugitives from justice and labor, and this was accordingly done. The legislature, doubtless, in requiring this law to be published among the statutes of the state, did it that the people might be fully apprised of the penalties to which they would be exposed, if they violated its provisions; and it cannot be supposed that the legislature would pass another law to punish with great severity the same offence. To punish criminally for the same offence more than once is a violation of a great fundamental principle and such an intention ought not to be imputed to the legislature, if any other sensible construction can be given to the statute.

If, by the 149th section of the criminal code, the legislature did not intend to punish the harboring and secreting of fugitive slaves, it may be asked to what description of cases did they intend to apply its provisions, where interference took place with the rights of non-resident owners of slaves ?

For a true solution of this enquiry, recurrence must be had to the situation of the state at and before the passage of the act. Illinois lies between Kentucky and Missouri. Emigrants and travelers from Kentucky and other slaveholding states have, for years, [been moving] and men were passing through Illinois to Missouri, by thousands, and were accompanied by numerous slaves. The right thus to travel through the state was by common consent, in other words, by comity, universally conceded to the citizens of those states. To prevent persons who, from ignorance of the law, or from sinister designs, might feel disposed to interfere with the rights of masters thus situated, this section of the criminal code, it is reasonable to be presumed, was passed. To this extent I have no doubt the legislature intended to extend the protection of our law. But I can by no means yield [* 518 ] my assent to the proposition that the legislature intended to punish an offence already amply punished under the act of congress ; and if it did, then I am clearly of opinion that its act was void, as being an attempt to legislate on a subject exclusively within the jurisdiction of congress.

To construe this section as being a mere police regulation contradicts all my views of such regulations. I never heard our criminal code before designated as police regulations. I have supposed that police regulations related to laws regulating tavern, excises, vagrants and paupers, and not to matters of such high concernment as the criminal code of the state.

To apply these principles to the indictment now under consideration, I am of the opinion that the first count is defective, because it contains no allegation of a scienter, and because it does not show how the slave came into the state of Illinois. The person being in this state, and by our laws presumed to be free, the question arises, what takes him out of the operation of this rule? Did he escape from Missouri ? Then he is a fugitive from labor, and the secreting him is an offence against the act of congress.. Did his master bring him here and hire him out ? Then he became free. As this court is uncertain m this respect, there being no allegation in the indictment showing in what manner the slave came into the state, so as to prevent his becoming free under the general rule; for this uncertainty, as well as for want of averment of a scienter, I consider the first count defective. The second count is also bad on both of the above grounds.

The third count is bad for the reason of the absence of an averment of a scienter, and also for the further reason that it states the slave to have been a fugitive from labor, and consequently the defendant was punishable under the act of congress.

The fourth count was quashed in the court beiow, and the opinion of this court upon that count is therefore not called for. The fifth and last count is defective for the same reasons which are assigned against the soundness of the third count.

To prevent the indictment in this case from being drawn into a precedent, I deem it my duty to state that I consider it defective, because the name of the slave nowhere appears. In indictments of this description, I think it is necessary'to give the name of the slave, to apprise the defendant of the particular slave he is charged with having secreted, and also in case of a second indictment, to enable him to plead the former trial without compelling him to resort to parol proof to show that the last indictment related to the secreting of the same slave.

Although this defect in the indictment is not assigned for error, I am of the opinion that the court ex mero motu should [*519] reverse the judgment below for this reason.

Wilson, Chief Justice, and BROWNE, Justice, concurred in the dissenting opinion of Justice Lockwood.

Judgment affirmed,