The process, by virtue of which the petitioner was arrested and is now detained, was issued under the provisions of the 5th section of the 74th chapter of the Revised Statutes. The manifest object of that section is to facilitate the recaption, of fugitive slaves, found within the limits of this state. All of its provisions point directly to such a purpose. By this section, a negro, coming into this state without a certificate of freedom, is presumed to be a runaway slave, and may be arrested and committed to jail as such. The sheriff is then to advertise him for six weeks in a newspaper, giving a particular description of his person. After the expiration of that time, he is to be hired out from month to month, for one year, unless the owner shall sooner appear and reclaim him. A reward is given to the person arresting him, which, together with all reasonable costs and charges, the owner is required to pay. The owner is permitted to receive the hire of the negro after the payment of all expenses. The person arresting him is declared to be entitled to any reward that the owner may have offered for his apprehension. It is evident from a bare inspection of the section, that its sole design is to aid the master in reclaiming his slave escaping into this state. Although the provisions of this section were incorporated into our statute as early as 1819, and seem to be dictated by a proper regard to the rights of citizens of other states, still we are constrained to pronounce them wholly inoperative.
The constitution of the United States declares that, “ no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.55 Congress, legislating in pursuance of this provision of the constitution, by the act of the 12th of February, 1793, prescribed the mode by which the master may retake and remove his slave found in another state, and imposed penalties against those obstructing him in pursuing the remedy.
The Supreme Court of the United States, in the case of Prigg vs- The Commonwealth of Pennsylvania, 16 Peters, 539, decided that all state legislation, intended either to impede or assist the master in the recaption of his fugitive slave, was null and void, on the ground that the legislation of Congress on the subject was exclusive. Story, Justice, in delivering the opinion of the Court, said: “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 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.” Taney, Chief Justice, who did not agree with the majority of the Court on this question, remarked: “ But as I understand the opinion of the Court, it goes further, and decides that the power to provide a remedy for this right is vested exclusively in Congress; and that all laws upon the subject passed by a state, since the adoption of the constitution of the United States, are null and void; even although they were intended, in good faith, to protect the owner in the exercise of his right of property, and do not conflict in any degree with the act of Congress.” Wayne, Justice, in a separate opinion, said it was decided by the Court, ££ that the power of legislation by Congress upon the provision is exclusive; and that no state can pass any law as a remedy upon the subject, whether Congress had or had not legislated upon it.”
That decision is conclusive of the invalidity of this section of our statute. It is void, because it assumes to legislate upon a subject matter over which Congress has exclusive jurisdiction. It follows that the arrest of the petitioner was without authority of law, and he must be discharged from custody.
Prisoner discharged.