gress prior to the year 1808, was under considera- of the states have not the ties of sympathy and feltion, Mr. George Mason said "As much as I va- low-feeling for those whose interest would be aflue an union of all the states, I would not admit the fected by the emancipation. The majority of Consouthern states into the Union, unless they agreed gress is to the north, and the slaves are to the to the discontinuance of this disgraceful trade; be- south. In this situation, I see a great deal of the cause it would bring weakness and not strength to property of the people of Virginia in jeopardy, and the Union. And though this infamous traffic be their peace and tranquillity gone away. I repeat it continued, we have no security for the property of again, that it would rejoice my soul that every one that kind which we have already. There is no of my fellow-beings was emancipated. As we clause in this constitution to secure it; for they ought with gratitude to admire that decree of may lay such tax as will amount to manumission." Heaven, which has numbered us among the free, Mr. Madison answered these objections as fol- we ought to lament and deplore the necessity of lows: "I should conceive this clause to be impoli- holding our fellow-men in bondage. But is it tic, if it were one of those things which could be practicable by any human means, to liberate them excluded without encountering greater evils. The without producing the most dreadful and ruinous southern states would not have entered into the consequences? We ought to possess them in the union of America, without the temporary permis- manner we have inherited them from our ancession of that trade. And if they were excluded tors, as their manumission is incompatible with the from the Union, the consequences might be dread- felicity of our country. But we ought to soften as ful to them and to us. We are not in a worse sit- much as possible the rigor of their unhappy fate.”* nation than before. That traffic is prohibited by Mr. Henry was answered by Gov. Randolph: our laws, and we may continue the prohibition. "I ask," said he, "and I will ask again and again, The Union in general is not in a worse situation. until I be answered (not by declamation), where is Under the articles of the confederation it might be the part that has a tendency to the abolition of slacontinued forever, but by this clause an end may very? Is it the clause which says that the migrabe put to it after twenty years. There is therefore tion or importation of such persons, as any of the an amelioration of our circumstances. A tax may states now existing shall think proper to admit, be laid in the meantime, but it is limited, otherwise shall not be prohibited by Congress prior to the Congress might lay such a tax as would amount to year 1808? This is an exception from the power a prohibition, From the mode of representation of regulating commerce, and the restriction is only and taxation, Congress cannot lay such a tax on to continue till 1808. Then Congress can, by the slaves as will amount to manumission. Another exercise of that power, prevent future importaclause secures us that property which we now pos- tions; but does it affect the existing state of slasess. At present, if any slave elopes to any of very? Were it right here to mention what passed those states where slaves are free, he becomes in convention on the occasion, I might tell you that emancipated by their laws. For the laws of the the southern states, even South Carolina herself, states are uncharitable to one another in this re- conceived this property to be secure by these spect. But by this constitution, 'no person held words. I believe, whatever we may think here, to service or labor in one state under the laws that there was not a member of the Virginia delethereof, escaping into another, shall, in consequence gation, who had the smallest suspicion of the aboof any law or regulation therein, be discharged from lition of slavery. Go to their meaning. Point such service or labor, but shall be delivered up on out the clause where this formidable power of claim of the party to whom such service or labor emancipation is inserted. But another clause of may be due.' This clause was expressly inserted the constitution proves the absurdity of the suppoto enable owners of slaves to reclaim them. This sition. The words of the clause are, No person is a better security than any that now exists. No power is given to the General Government to interpose, with respect to the property in slaves now held by the states. The taxation of this state being equal only to its representation, such a tax cannot be laid as he supposes."† Patrick Henry endeavored to support the objection, that if the constitution were adopted, Congress might abolish slavery. "As much," said he, "as I deplore slavery, I see that prudence forbids its abolition. I deny that the General Government ought to set them free; because a decided majority * By southern states, was meant South Carolina and Georgia. + Elliott's Debates: vol. 2, p. 335-6. held to service or labor in one state, under the laws The sentiment of North Carolina, like that of and shall moreover produce the copy of an indictVirginia, was strongly opposed to any continuance ment found, or an affidavit made before a magisof the importation of slaves; but in both states, it was equally necessary to satisfy the minds of the people, that the property then existing in slaves was secured and protected. trate of any state, charging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the governor, or chief magistrate of the state from whence the perWhen, in the convention of North Carolina, the son so charged fled, it shall be the duty of the exlast clause of the second section of the fourth ecutive authority of the state, to which such perarticle was read, Mr. Iredell explained the reason son shall have fled, to cause him or her to be arof the clause. "In some of the northern states," rested and secured, and notice of the arrest to be he observed, "they have emancipated all their given to the executive authority making such deslaves. If any of our slaves go there, and remain mand, or to the agent of such authority appointed there a certain time, they would, by the present to receive the fugitive, and to cause the fugitive laws, be entitled to their freedom, so that their to be delivered to such agent when he shall appear. masters could not get them again. This would be extremely prejudical to the inhabitants of the southern states, and to prevent it, this clause is inserted in the constitution. Though the word slave be not mentioned, this is the meaning of it. The northern delegates, owing to their peculiar scruples on the subject of slavery, did not choose the word slave to be mentioned."* On the other hand, the countenance given by the constitution to slavery, was urged to the north as a reason against ratifying it. Upon this subject, the following sensible remarks were made in the convention of Massachusetts, by General Heath: "I apprehend," said he, "that it is not in our power to do any thing for or against those who are in slavery in the southern states. No gentleman within these walls detests every idea of slavery more than I do. It is generally detested by the people of this commonwealth; and I ardently hope that the time will soon come, when our brethren in the southern states will view it as we do, and put a stop to it; but to this we have no right to compel them. Two questions naturally arise. If we ratify the constitution, shall we do any thing by our act to hold the blacks in slavery; or shall we become the partakers of other men's sins? I think, neither of them. Each state is sovereign and independent, to a certain degree; and they have a right, and will regulate their own internal affairs as to themselves appears proper; and shall we refuse to eat or drink, or to be united with those who do not think or act just as we do? Surely not. We are not, in this ease, partakers of other men's sins; for in nothing do we voluntarily encourage the slavery of our fellow men."t Sentiments of this character finally prevailed; and such sentiments should now govern the con dact of the north. Another section of the same act provides, that when a person held to labor in any of the United States, under the laws thereof, shall escape into any other of the states, the person to whom such labor or service may be due, his agent or attorney, is empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the state, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made; and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit, taken before and certified by a magistrate of any other state, that the person so seized or arrested doth, under the laws of the state from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor, to the state or territory from which he or she fled. The last section of the act declares, that any person who shall, knowingly and willingly, obstruct or hinder such claimant, his agent or attorney, in so seizing or arresting such fugitive from labor; or shall rescue such fugitive from such claimant, his agent or attorney, when so arrested, pursuant to the authority herein given or declared; or shall harbor or conceal such person, after notice that he or she was a fugitive from labor as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars; which penalty may be recovered by, and for the benefit of such claimant, by action of debt in any court proper to try the same: saving moreover to the person claiming such labor or service, his right of action for, or on account of the said injuries, or either of them. 4. Laws of the United States.-The act of Congress, approved February 12, 1793, provides, bor.-The second section of the fourth article of 5. Judicial Decisions as to Fugitives from Lathat whenever the executive authority of any the constitution, is confined to persons held to serstate in the Union shall demand any person as vice or labor in one state, under the laws thereof, a fugitive from justice, of the executive authority who escape into another. Where the master voof any state to which such person shall have fled, luntarily carries his slave from one state into ano† Id. : vol. 1, p. 124. 'ther, the master must abide by the laws of the latter * Elliott's Debates: vol. 2, p. 157. state, so far as they may affect his right of property | scribed by the act, set up as a defence ignorance in the slave.* But if the slave comes from one state into another, in any other way than by the consent of the owner, whether he comes in as a fugitive or runaway, or is brought in by those who have no authority so to do, he cannot be discharged under any law of the latter state, but must be delivered up on claim of the party to whom his service or labor may be due.† It is, however, only the slave escaping into another state that is provided for. Hence it has been adjudged, that birth in Pennsylvania gives freedom to the child of a female slave who escaped before she became pregnant.‡ of the law, or even an honest belief that the person claimed as a fugitive did not owe service to the claimant. Such matters are unfit for the inquiry of the jury. It is sufficient to bring the defendant within the provisions of the law, if having notice, either by the verbal declarations of those who had the fugitive in custody, or were attempting to seize him, or by circumstances brought home to the defendant, that the person was a fugitive, or was arrested as such, he persists, nevertheless, in obstructing the seizure, or in making a rescue:* and the offence is complete, although the claimant should ultimately succeed in arresting or recovering possession of the fugitive.† A slave is incapable of contracting, so as to impair the right of his master to reclaim him; and if If the fugitive being once in custody, should of a private individual sue out process, or interfere his own accord evade his keeper and escape, or otherwise with the master's claim, under the pre- being excited by others to do so, should make the tence of a debt contracted by the slave, such inter-attempt, and an obstruction should be interposed to ference will be deemed illegal, and the claimant hinder the recaption of the fugitive, the offence will have a right of action for any injury he may receive by such obstruction.§ would be precisely the same as it would have been, had the same obstruction been interposed to the original seizure or arrest; and so on, as often as the like hindrance may occur in repeated attempts to make the seizure after an escape has taken place.‡ The act of Congress confers only a limited authority upon the magistrate to examine into the claim of the alleged owner; and, being satisfied on that point, to grant him a certificate to that effect. This is the commencement and termination of his duty. He has no authority to issue a warrant to apprehend the fugitive in the first instance, or to commit him after the examination is concluded and the certificate given. Pending the examination, whilst the fugitive is in custodia legis, the judges of the courts of the United States, held in Pennsylvania, have always considered themselves at liberty, to commit from day to day, till the examination is closed, or else the fugitive could not safely be indulged with time to get his witnesses to disprove the claim of the asserted owner, should he have any.§ But it is held, that slaves are not exempt from the penal laws of any state in which they may happen to be. And this doctrine has been carried so far, that in a case in Pennsylvania, in which there was no doubt upon the evidence of the negro being the slave of the claimant, he was detained in prison to answer a charge of fornication and bastardy. On the part of the master it was contended, that such a charge was not sufficient ground to prevent the delivery; for the object of a prosecution for it was the indemnity of the public-and a slave having no property could pay nothing. Tilghman, Chief Justice, said "Fornication has always been prosecuted in this state as a crime. By the law of 1705, it was subject to the punishment of whipping, or a fine of ten pounds, at the election of the culprit. The punishment of whipping has been since abolished, but the act of fornication is still considered as a crime; and where it is accompanied with bastardy, security must be given to indemnify the county against the expense of maintaining the child. It may be hard on the owner to give this security, The effect of a certificate given by a judge or or lose the service of his slave; but it is an incon- magistrate, under the act of Congress, has been much venience to which this kind of property is unavoida-discussed in the cases which have arisen in the bly subject. The child must be maintained; and northern states; and decisions have been made upon it is more reasonable that the maintenance should the subject by the highest judicial tribunals in sevebe at the expense of the person who has a right to ral of the states. the service of the criminal, than at that of the people of this city who have no such right.”|| If a person shall, in violation of the act of Congress, knowingly and willingly obstruct, or hinder the claimant in seizing the fugitive, he cannot, when sued for the penalty of five hundred dollars pre *Ex parte Simmons: 4 Wash. C. C. R. 396. + Butler, &c. v. Delaplaine: 7 Serg. and Rawle, 378. Com. v. Holloway: 2 Serg. and Rawle, 305. Glen v. Hodges: 9 Johns. 62. Com. v. Holloway: 3 Serg. and Rawle, 4. In 1819, a colored man, claimed by a citizen of Maryland as a fugitive from his service, was arrested by him in the county of Philadelphia, and carried before a justice of the peace, who committed the man to prison, in order that inquiry might be made into the claim. The man then sued out * Washington J. in Hill v. Low: 4 Wash. C. C. R. 329. + Id. 330. + Id. 331. ◊ Washington J. in Worthington v. Preston: 4 Wash. C. C. R. 463. States. We are therefore of opinion that it should be quashed.' a habeas corpus, returnable before a judge of the court of common pleas. The judge after hearing the parties, gave a certificate that it appeared to In 1823, a case, under the same section of the him by sufficient testimony, that the man owed la- act of Congress, came before the supreme court of bor or service to the claimant from whom he had Massachusetts. Randolph, a slave, the property of absconded, and delivered the certificate to the claim- one McCarty, of the state of Virginia, had fled from ant that he might remove the man to the state of the service of his master. After getting to MasMaryland. A writ de homine replegiando was sachusetts, he acquired a dwelling-house in New then sued out by the man against the keeper of the Bedford, which he held as his own. After living prison; and the counsel for the claimant moved to in New Bedford four or five years, he was seized quash it, on the ground of its having issued contrary by one Griffith under the act of Congress. Griffith to the constitution and laws of the United States. had authority in writing (with a scroll in the place The matter was regarded by the supreme court of of a seal) from one Mason, the administrator on the Pennsylvania as of considerable importance, and estate of McCarty, and made the seizure as Mait was therefore held some days under advisement. son's agent and attorney. Griffith was indicted for Chief Justice Tilghman delivered the opinion of the an assault and battery and false imprisonment, and court. "Whatever," said he, " may be our private a verdict was taken against him. It was agreed opinions on the subject of slavery, it is well known that if the court should determine that the act of that our southern brethren would not have consented Congress was not valid, or that the administrator to become parties to a constitution, under which had not power according to the true construction the United States have enjoyed so much prosperity, of that act, and of the laws of Virginia, by himself, unless their property in slaves had been secured. his agent, or attorney, to reclaim the slave, or that This constitution has been adopted by the free con- the letter of attorney was not sufficient to operate sent of the citizens of Pennsylvania; and it is the in Massachusetts, then the verdict should stand; duty of every man, whatever may be his office or sta- otherwise that the defendant should be discharged. tion, to give it a fair and candid construction." The Parker, Chief Justice, delivered the opinion of a Chief Justice cites the provision in the second sec- majority of the court, in substance as follows: tion of the fourth article of the constitution, and "The first question is, whether the defendant observes-"here is the principle: the fugitive is to was duly empowered as an agent to reclaim the be delivered up on claim of the master. But it re-slave? We do not decide, whether a scroll is a quired a law to regulate the manner in which this seal, though probably it would not be so considered principle should be reduced to practice. It was in this state. But we think that a letter of attornecessary to establish some mode in which the claim ney was not required to communicate power to this should be made, and the fugitive be delivered up." agent. In general, a seal is not necessary, except The judge then quotes the enactment on the sub- to authorize the making of a sealed instrument. A ject by Congress, and concludes the opinion as fol- common letter, or a parol authority, is sufficient for lows: “It plainly appears from the whole scope making many important contracts. The words of and tenor of the constitution, and act of Congress, the statute are, the person to whom such labor or that the fugitive was to be delivered up on a sum- service may be due, his agent or attorney.' If a mary proceeding, without the delay of a formal letter of attorney were required, the statute would trial in a court of common law. But if he had have used the word attorney only; but the word really a right to freedom, that right was not im-agent being also used, serves to explain the intenpaired by this proceeding. He was placed just in tion of the legislature." the situation in which he stood before he fled, and might prosecute his right in the state to which he belonged. Now, in the present instance, the proceeding before Judge Armstrong, and the certificate granted by him, are in exact conformity to the act of Congress. That certificate therefore was a legal warrant to remove the plaintiff to the state of Maryland. But if this writ of homine replegiando is to issue from a state court, what is its effect but to arrest the warrant of Judge Armstrong, and thus defeat the constitution and law of the United States! The constitution and the law, say that the master may remove his slave by virtue of the judge's certificate: but the state court says, that he shall not remove him. It appears to us, that this is the plain state of the matter, and that the writ has been issued in violation of the constitution of the United! "The question then is, whether Mason, having been duly appointed administrator under the laws of Virginia, had a right to come here himself and claim the slave; for the claim by his agent was the same as if made by himself? It has been decided that a foreign administrator cannot come here to collect a debt; and if it was necessary to pursue the slave in the character of administrator, the authorities are clear against the defendant. But by the statute of the United States, the person to whom the service is due may reclaim; and by the laws of Virginia an administrator is such person. Taking both together, Mason might come here to reclaim, and it was not necessary that he should come in the character of an administrator." "This brings the case to a single point, whether * Case of Wright v. Deacon: 5 Serg. and Rawle, 62. the statute of the United States, giving power to proper course then was for the recorder to grant a seize a slave without a warrant, is constitutional? certificate allowing the removal of the fugitive.* It is difficult, in a case like this, for persons who The constitutionality of a law of New York, are not inhabitants of slave-holding states, to pre-which provides for the arrest of fugitive slaves, in vent prejudice from having too strong an effect on a manner different in some respects from the act of their minds. We must reflect, however, that the Congress; and gives to one, claimed as a slave, the constitution was made with some states, in which writ of homine replegiando against the person claimit would not occur to the mind to inquire whether ing the service-and suspends all proceedings beslaves were property. It was a very serious ques-fore the judge or magistrate, and the removal of the tion when they came to make the constitution, what slave under the certificate, until final judgment shall should be done with their slaves. They might have be given on this writ; was discussed in another case kept aloof from the constitution. That instrument before the supreme court of the state of New York, was a compromise. It was a compact by which all which was heard in the same year. are bound. We are to consider then what was the Judge Nelson, who delivered the opinion of the intention of the constitution. The words of it were supreme court on the question as to the effect of used out of delicacy, so as not to offend some in the act of Congress, and of the statute of New the convention whose feelings were abhorrent to York, says "To ascertain which is entitled to slavery; but we there entered into an agreement paramount authority, we must go back to the source that slaves should be considered as property. Sla- of power-the provision of the constitution; that very would still have continued, if no constitution being conceded to be supreme, and any law in purhad been made." "The constitution does not prescribe the mode of reclaiming a slave, but leaves it to be determined by Congress. It is very clear that it was not intended that application should be made to the executive authority of the state. It is said that the act which Congress has passed on this subject, is contrary to the amendment of the constitution, securing the people in their persons and property against seizures, &c., without a complaint upon oath. But all the parts of the instrument are to be taken together. It is very obvious that slaves are not parties to the constitution, and the amendment has relation to the parties." "It is said that when a seizure is made, it should be made conformably to our laws. This does not follow from the constitution; and the act of Congress says that the person to whom the service is due may seize, &c. Whether the statute is a harsh one, is not for us to determine. "But it is objected, that a person may in this summary manner seize a freeman. It may be so, but this would be attended with mischievous consequences to the person making the seizure, and a habeas corpus would lie to obtain the release of the person seized. "We do not perceive that the statute is unconstitutional, and we think that the defence is well made Out."* suance thereof controlling. The first clause is merely prohibitory upon the states, and forbids the enactment of any law or the adoption of any regulation, in the case of a fugitive slave, by which he may be discharged from the service of his master; and this prohibition upon the state power thus far, is unqualified and complete, as it necessarily includes a restriction against any measure tending, in the slightest degree, to impair the right to such service. No 'law or regulation' of a state being permitted to discharge it, the claim or title of the owner remains as perfect within the jurisdiction of the state to which the fugitive has fled, after his arrival and during his continuance, as it was in and under the laws of the state from which he escaped. The service there due, and the escape being established, so explicit are the terms of the constitution, no rightful authority can be exercised by the state to vary the relation existing between the parties. To this very qualified extent, slavery may be said still to exist in a state, however effectually it may have been denounced by her constitution and laws. On this point there can be no diversity of opinion as to the intent and meaning of this provision; the doubt arises upon the construction to be given to the next clause: 'but shall be delivered up on claim of the party to whom such service or labor may be due.' The counsel for the plaintiff in error contends, the mode of making the claim and of delivering up the fugitive, is a subject exclusively of state regulation with which Congress has no right to interfere; and upon this view, the constitutionality of the law of this state is sought to be sustained.” In New York, the writ de homine replegiando has been more frequently resorted to than in the other northern states. In 1834, a man who was brought before the recorder of the city of New York, as a fugitive slave, sued out a writ of homine "It is material to look into the object of this replegiando, upon which an issue was joined and clause of the constitution; the evil to be guarded tried in the New York circuit, and a verdict found against, and the nature and character of the rights that the man owed service to the person claiming to be protected and enforced, in order to comprehim on which verdict, judgment was rendered. hend its meaning and determine what powers and The supreme court of New York decided, that the to what extent may be rightfully claimed under it.” *Floyd v. Recorder of New York: 11 Wend. 180. *Com. v. Griffith: 2 Pick. 11. |