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An essay upon the constitutional rights as to slave property


AN ESSAY

UPON THE

CONSTITUTIONAL RIGHTS

AS TO

SLAVE PROPERTY.

Republished from the "Southern Literary Messenger," for Feb. 1840.


RICHMOND:

PRINTED BY THOMAS W. WHITE. 1840.



SLAVERY AND THE CONSTITUTION.

[The writer of the following article had in view several objects. He wished to be instrumental in disseminating information to the North as to the rights of the South, and in making known at the South the extent to which the judicial tribunals of the North have protected Southern rights; while, at the same time, it was a part of his design to present a legal view of the constitutional question, which has lately been discussed between the Executive of Virginia, and the Executive of New York. He thought it desirable, therefore, that the matter should be published to the North as well as to the South; and that the first publication, in either section of country, should be in a journal not of a political character. In accordance with this view, the manuscript, at the same time that it was furnished to the Messenger, was transmitted to the Editors of the American Jurist, a valuable legal periodical published at Boston. The manuscript as it came to us, was arranged for two numbers, and it was in the last of these, that the constitutional question above adverted to, was examined. A deep sense of the importance of that question—a knowledge of the peculiar interest with which it is regarded at the present moment, and a conviction that whatever will throw light upon it is now particularly acceptable—have induced us, with the author's assent, to unite the two numbers in one, and give the whole to our readers together.

The article is written in a calm and candid manner, and reflects much credit upon the industry and judgment of its author. He has rendered an important service to his own State, and presented, by an array of facts, a powerful appeal to the State with which she is in controversy. We think that our readers will be much interested and instructed in its perusal. We are not aware that we are taking an improper liberty, when we mention that its author is Conway Robinson, Esq., of this city. Let it be read with calmness, impartiality and reflection.]—Ed. Messenger.


rights of the slave-holding states, and of the owners of slave property, under the constitution of the united states.

The great importance of this subject, and the increased and increasing interest with which it is viewed in every part of our country, justify the belief that an examination of the provisions of the constitution on which the owners of slave property were induced to rely when the federal compact was formed, a sketch of the laws which Congress has passed to carry out those constitutional provisions, and a review of the judicial decisions which have been made under the constitution and laws, may prove acceptable to the readers of this journal, and not be without utility at the present time. As matter which is introductory and somewhat explanatory, we shall commence by giving an outline of the laws as to slavery, which at the time the federal constitution was adopted and subsequently thereto, have prevailed in the three most important northern states. We mean New York, Pennsylvania, and Massachusetts.


1. Laws as to Slavery in the Northern States.—The law, as to slavery in Massachusetts, is stated by Chief Justice Parsons in a case which came before the supreme court of that state.[1]

"Slavery," he says, "was introduced into this country soon after its first settlement, and was tolerated until the ratification of the present constitution. The slave was the property of his master, subject to his orders and to reasonable correction for misbehavior—was transferable like a chattel by gift or sale, and was assets in the hands of his executor or administrator. If the master was guilty of a cruel or unreasonable castigation of his slave, he was liable to be punished for the breach of the peace; and, I believe, the slave was allowed to demand sureties of the peace against a violent and barbarous master, which generally caused a sale to another master. And the issue of the female slave, according to the maxim of the civil law, was the property of her master. Under these regulations, the treatment of slaves was in general mild and humane, and they suffered hardships not greater than hired servants. Slaves were sometimes permitted to enjoy some privileges as a peculium, with the profits of which they were enabled to purchase their manumission, and liberty was frequently granted to a faithful slave, by the bounty of the master, sometimes in his life, but more commonly by his last will."

"In the first action, involving the right of the master, which came before the supreme judicial court after the establishment of the constitution, the judges declared that by virtue of the first article of the declaration of rights, slavery in this state was no more. And afterwards in an action by the inhabitants of Littleton, brought to recover the expenses of maintaining a negro against Tuttle, his former reputed master, tried in Middlesex October term, 1796, the Chief Justice, in charging the jury, stated as the unanimous opinion of the court, that a negro born in the state before the present constitution, was born free, although born of a female slave."

The opinion so given by the court in 1796, is stated by Chief Justice Parsons to have been opposed to the practice and usage at that day, but it has constituted a rule of decision ever since. The issue of slaves, although born before the adoption of the constitution, are held to have been born free.[2]

In New York, it was declared by one of the colonial statutes, that all due encouragement ought to be given to the direct importation of slaves. After the revolution, the government of that state determined upon a different policy.

The act of February 22d, 1788, declared, "that if any person shall sell as a slave within this state, any negro or other person, who has been imported or brought into this state after the 1st of June, 1785, such seller, his factor or agent, shall be guilty of a public offence and shall forfeit £100, and the person so imported and sold shall be free."

The act was hostile to the importation and to the exportation of slaves, as an article of trade, not to the existence of slavery itself; for it took care to re-enact and establish the maxim of the civil law, that the children of every female slave should follow the state and condition of the mother.[3]

It was not considered to prevent a sheriff from taking or selling a slave under an execution against the owner; and the slave was subject to the control and disposition of the executor or administrator of a deceased owner, in the same manner as other personal property. The prohibition was against a voluntary sale by the master of a slave, imported or brought into the state.[4]

The statute imposed a penalty for harboring slaves or servants; and it was held moreover that this was cumulative, and did not destroy the common law remedy which a master had by an action, to recover damages for seducing and harboring his servant.[5]

The master might confine his slave in jail, and this it appears was done in a case decided as late as 1823.[6]

By the act for the gradual abolition of slavery, all children born of slaves, subsequent to the 4th of July, 1799, were declared to be free, but to continue servants to the owners of their mothers—males till the age of twenty-eight, and females till the age of twenty-five. The act of 1817 made it the duty of the masters of such servants, to give them certain education before arriving at the age of eighteeen, and, in default of so doing, declared the servants free at the age of eighteen; and, in order that it might be known when the age was attained which discharged them from further servitude, the person entitled to such service was required within one year after the passage of the act, or after the birth of the child of a slave, to make an affidavit stating the age of such servant; and in default of making and filing such affidavit, within the time specified, the act declared the person so held to service free at eighteen.[7]

Even after this act, all then alive, who were born in the state prior to the 4th of July, 1799, of females who were slaves at the time of the birth, continued slaves; except such as had been emancipated by their owners.

At last, by an act of the 31st of March, 1817, provision was made for the annihilation of slavery in the state of New York, in about ten years thereafter, by a section which declared that every negro, mulatto or mustee, within the state, born before the 4th of July, 1799, should, from and after the 4th day of July, 1827, be free.[8]

The act of the legislature of Pennsylvania, for the gradual abolition of slavery, passed on the 1st of March, 1780. By this act every person, who at the time of passing it was a slave, was to remain a slave, unless his owner omitted to register him on or before the 1st day of November ensuing. Children born after the passing of the act, were born free, subject however to a temporary servitude till the age of twenty-eight: and the issue of such children could not be held to any servitude.[9]

Very soon after this act was passed, a number of persons formed a society in Philadelphia, for the purpose of relieving those who were held in illegal slavery. A boy, born in Maryland of an unmarried mulatto woman, who was a slave, attended his master to Philadelphia in the autumn of 1784, and his complexion being light, the attention of this society was excited, and a writ of habeas corpus was taken out at their instance for his relief. The case was afterwards thrown into the form of an action de homine replegiando. At the trial, the plaintiff himself was shown to the jury, that they might, from his appearance, draw a conclusion that he was, at least on one side, the issue of white parents. On the part of the master, it was proved that by the laws of Maryland, the boy was a slave in that state; and it was contended that the lex loci must determine the right. The other side allowed the force of the lex loci in regulating contracts, but insisted that it could never be extended to injure a third person who was not a party to the contract; and on that side the following propositions were advanced: 1st. That however the case might be according to the civil law, by the common law, the issue followed the condition of the father, 2dly. That a bastard being nullius filius was free; and 3dly. That things, not persons, are the objects of property. McKean, Chief Justice, delivered his sentiments in an elaborate charge to the jury—in the course of which, he said: "Slavery is of very ancient origin. By the sacred books of Leviticus and Deuteronomy, it appears to have existed in the first ages of the world; and we know it was established among the Greeks, the Romans, and the Germans. In England, there was formerly a species of slavery, distinct from that which was termed villenage. Swinb. p. 84, 6 edi. is the only authority I remember on this point, though I have before had occasion to look into it with attention. But from this distinction has arisen the rule that the issue follows the condition of the father—and its consequence that the bastard is always free; because in contemplation of law, his father is altogether unknown, and that therefore his slavery shall not be presumed, which must be confined implicitly to the case of villeins. It would, perhaps, be difficult to account for this singular deviation in the law of England, from the law of every other country upon the same subject. But it is enough for the present occasion to know, that as villenage never existed in America, no part of the doctrine founded upon that condition can be applicable here. The contrary practice has, indeed, been universal in America; and our practice is so strongly authorized by the civil law, from which this sort of domestic slavery is derived, and is in itself so consistent with the precepts of nature, that we must now consider it as the law of the land."

The jury were left to determine from the evidence, whether the plaintiff's mother was a slave at the time of his birth according to the laws of the state where he was born; and their verdict upon the evidence was for the defendant.[10]

This trial took place in 1786, only the year before that in which the convention was held that formed the federal constitution.

At the time of the convention, the experience of the states south of Pennsylvania, was such as to produce distrust of their northern brethren as to the safety of their property in slaves.

"It was no easy task to reconcile the local interests and discordant prepossessions of the different sections of the United States; but the business was accomplished by acts of concession and mutual condescension."[11]


2. Provisions made by the Federal Convention, for the security of the South.—The original articles of confederation contained a clause in the following words:

"If any person guilty of, or charged with treason, felony, or other high misdemeanor in any state, shall flee from justice, and be found in any of the United States, he shall, upon demand of the government or executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offence."

In the convention of 1787, the committee to whom were referred the proceedings of the convention, for the purpose of reporting a constitution, reported a draft, in which the fifteenth article was as follows:

"Any person charged with treason, felony or high misdemeanor in any state, who shall flee from justice and shall be found in any other state, shall, on demand of the executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of the offence."

When the draft was before the convention, on the 28th of August, 1787, it was moved to strike out the words "high misdemeanor," and insert the words "other crime;" which motion passed in the affirmative.

On the next day, a motion was made to agree to the following proposition, to be inserted after the fifteenth article:

"If any person bound to service or labor, in any of the United States, shall escape into another state, he or she shall not be discharged from such service or labor, in consequence of any regulation subsisting in the state to which they escape, but shall be delivered up to the person justly claiming their service or labor."

This proposition was unanimously adopted.

Afterwards, a committee was appointed to revise the style of, and arrange the articles agreed to by the house. The second section of the fourth article, reported by the committee of revision, contained the following clauses:

"A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, and removed to the state having jurisdiction of the crime."

"No person legally held to service or labor, in one state, escaping into another, shall, in consequence of regulations subsisting 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."

The federal constitution, as adopted, contains the clauses thus reported with some amendment. In the first clause the words "to be removed," are in place of the words "and removed." In the second clause, the changes of language are more striking. The word "legally" is struck out, and after the word "state," the words "under the laws thereof," inserted; and the expression, "regulations subsisting therein," is substituted by the words "any law or regulations therein."


3. Debates in the State Conventions.—When the Virginia convention were considering whether they would assent to, and ratify the federal constitution, Mr. Madison, amongst other things, said—"it is worthy of our consideration that those who prepared the paper on the table, found difficulties not to be described in its formation—mutual deference and concession were absolutely necessary. Had they been inflexibly tenacious of their individual opinions, they would never have concurred. Under what circumstances was it formed? When no party was formed, or particular prepossession made, and men's minds were calm and dispassionate. Yet, under these circumstances, it was difficult, extremely difficult, to agree to any general system.[12]

The members of the Virginia convention were nearly equally divided upon the question of ratification, and the opposition embraced a very considerable proportion of the talent of the state. Amongst the opponents, there were none more decided or more zealous, than Geo. Mason and Patrick Henry.

When the section, declaring that the importation of such persons as any of the states might think proper to admit, should not be prohibited by Congress prior to the year 1808, was under consideration, Mr. George Mason said—"As much as I value an union of all the states, I would not admit the southern states[13] into the Union, unless they agreed to the discontinuance of this disgraceful trade; because it would bring weakness and not strength to the Union. And though this infamous traffic be continued, we have no security for the property of that kind which we have already. There is no clause in this constitution to secure it: for they may lay such tax as will amount to manumission."

Mr. Madison answered these objections as follows: "I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The southern states would not have entered into the union of America, without the temporary permission of that trade. And if they were excluded from the Union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The Union in general is not in a worse situation. Under the articles of the confederation it might be continued forever, but by this clause an end may be put to it after twenty years. There is therefore an amelioration of our circumstances. A tax may be laid in the meantime, but it is limited, otherwise Congress might lay such a tax as would amount to a prohibition. From the mode of representation and taxation. Congress cannot lay such a tax on slaves as will amount to manumission. Another clause secures us that property which we now possess. At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws. For the laws of the states are uncharitable to one another in this respect. But by this constitution, '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 clause was expressly inserted to enable owners of slaves to reclaim them. This 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."[14]

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 of the states have not the ties of sympathy and fellow-feeling for those whose interest would be affected by the emancipation. The majority of Congress is to the north, and the slaves are to the south. In this situation, I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone away. I repeat it again, that it would rejoice my soul that every one of my fellow-beings was emancipated. As we ought with gratitude to admire that decree of Heaven, which has numbered us among the free, we ought to lament and deplore the necessity of holding our fellow-men in bondage. But is it practicable by any human means, to liberate them without producing the most dreadful and ruinous consequences? We ought to possess them in the manner we have inherited them from our ancestors, as their manumission is incompatible with the felicity of our country. But we ought to soften as much as possible the rigor of their unhappy fate."[15]

Mr. Henry was answered by Gov. Randolph: "I ask," said he, "and I will ask again and again, until I be answered (not by declamation), where is the part that has a tendency to the abolition of slavery? Is it the clause which says that 'the migration or importation of such persons, as any of the states now existing shall think proper to admit, shall not be prohibited by Congress prior to the year 1808?' This is an exception from the power of regulating commerce, and the restriction is only to continue till 1808. Then Congress can, by the exercise of that power, prevent future importations; but does it affect the existing state of slavery? Were it right here to mention what passed in convention on the occasion, I might tell you that the southern states, even South Carolina herself, conceived this property to be secure by these words. I believe, whatever we may think here, that there was not a member of the Virginia delegation, who had the smallest suspicion of the abolition of slavery. Go to their meaning. Point out the clause where this formidable power of emancipation is inserted. But another clause of the constitution proves the absurdity of the supposition. The words of the clause are, '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.' Every one knows that slaves are held to service or labor; and when authority is given to owners of slaves to vindicate their property, can it be supposed they can be deprived of it? If a citizen of this state, in consequence of this clause, can take his runaway slave in Maryland, can it be seriously thought, that after taking him and bringing him home, he could be made free?"[16]

The sentiment of North Carolina, like that of Virginia, was strongly opposed to any continuance of 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.

When, in the convention of North Carolina, the last clause of the second section of the fourth article was read, Mr. Iredell explained the reason of the clause. "In some of the northern states," he observed, "they have emancipated all their slaves. If any of our slaves go there, and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their 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."[17]

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 case, partakers of other men's sins; for in nothing do we voluntarily encourage the slavery of our fellow men."[18]

Sentiments of this character finally prevailed; and such sentiments should now govern the conduct of the north.


4. Laws of the United Slates.—The act of Congress, approved February 12, 1793, provides, that whenever the executive authority of any state in the Union shall demand any person as a fugitive from justice, of the executive authority of any state to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate 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 person so charged fled, it shall be the duty of the executive authority of the state, to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.

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.


5. Judicial Decisions as to Fugitives from Labor.—The second section of the fourth article of the constitution, is confined to persons held to service or labor in one state, under the laws thereof, who escape into another. Where the master voluntarily carries his slave from one state into another, the master must abide by the laws of the latter state, so far as they may affect his right of property in the slave.[19]

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.[20]

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.[21]

A slave is incapable of contracting, so as to impair the right of his master to reclaim him; and if a private individual sue out process, or interfere otherwise with the master's claim, under the pretence of a debt contracted by the slave, such interference will be deemed illegal, and the claimant will have a right of action for any injury he may receive by such obstruction.[22]

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, or lose the service of his slave; but it is an inconvenience to which this kind of property is unavoidably subject. The child must be maintained; and it is more reasonable that the maintenance should be at the expense of the person who has a right to the service of the criminal, than at that of the people of this city who have no such right."[23]

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 prescribed by the act, set up as a defence ignorance 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:[24] and the offence is complete, although the claimant should ultimately succeed in arresting or recovering possession of the fugitive.[25]

If the fugitive being once in custody, should of his own accord evade his keeper and escape, or being excited by others to do so, should make the attempt, and an obstruction should be interposed to hinder the reception of the fugitive, the offence 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.[26]

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.[27]

The effect of a certificate given by a judge or magistrate, under the act of Congress, has been much discussed in the cases which have arisen in the northern states; and decisions have been made upon the subject by the highest judicial tribunals in several of the states.

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 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 him by sufficient testimony, that the man owed labor or service to the claimant from whom he had absconded, and delivered the certificate to the claimant that he might remove the man to the state of Maryland. A writ de homine replegiando was then sued out by the man against the keeper of the prison; and the counsel for the claimant moved to quash it, on the ground of its having issued contrary to the constitution and laws of the United States. The matter was regarded by the supreme court of Pennsylvania as of considerable importance, and it was therefore held some days under advisement. Chief Justice Tilghman delivered the opinion of the court. "Whatever," said he, "may be our private opinions on the subject of slavery, it is well known that our southern brethren would not have consented to become parties to a constitution, under which the United States have enjoyed so much prosperity, unless their property in slaves had been secured. This constitution has been adopted by the free consent of the citizens of Pennsylvania; and it is the duty of every man, whatever may be his office or station, to give it a fair and candid construction." The Chief Justice cites the provision in the second section of the fourth article of the constitution, and observes—"here is the principle: the fugitive is to be delivered up on claim of the master. But it required a law to regulate the manner in which this principle should be reduced to practice. It was necessary to establish some mode in which the claim should be made, and the fugitive be delivered up." The judge then quotes the enactment on the subject by Congress, and concludes the opinion as follows: "It plainly appears from the whole scope and tenor of the constitution, and act of Congress, that the fugitive was to be delivered up on a summary proceeding, without the delay of a formal trial in a court of common law. But if he had really a right to freedom, that right was not impaired by this proceeding. He was placed just in 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 States. We are therefore of opinion that it should be quashed."[28]

In 1823, a case, under the same section of the act of Congress, came before the supreme court of Massachusetts. Randolph, a slave, the property of one McCarty, of the state of Virginia, had fled from the service of his master. After getting to Massachusetts, he acquired a dwelling-house in New Bedford, which he held as his own. After living in New Bedford four or five years, he was seized by one Griffith under the act of Congress. Griffith had authority in writing (with a scroll in the place of a seal) from one Mason, the administrator on the estate of McCarty, and made the seizure as Mason's agent and attorney. Griffith was indicted for an assault and battery and false imprisonment, and a verdict was taken against him. It was agreed that if the court should determine that the act of Congress was not valid, or that the administrator had not power according to the true construction of that act, and of the laws of Virginia, by himself, his agent, or attorney, to reclaim the slave, or that the letter of attorney was not sufficient to operate in Massachusetts, then the verdict should stand; otherwise that the defendant should be discharged. Parker, Chief Justice, delivered the opinion of a majority of the court, in substance as follows:

"The first question is, whether the defendant was duly empowered as an agent to reclaim the slave? We do not decide, whether a scroll is a seal, though probably it would not be so considered in this state. But we think that a letter of attorney was not required to communicate power to this agent. In general, a seal is not necessary, except to authorize the making of a sealed instrument. A common letter, or a parol authority, is sufficient for making many important contracts. The words of the statute are, 'the person to whom such labor or service may be due, his agent or attorney.' If a letter of attorney were required, the statute would have used the word attorney only; but the word agent being also used, serves to explain the intention of the legislature."

"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 the statute of the United States, giving power to seize a slave without a warrant, is constitutional? It is difficult, in a case like this, for persons who are not inhabitants of slave-holding states, to prevent prejudice from having too strong an effect on their minds. We must reflect, however, that the constitution was made with some states, in which it would not occur to the mind to inquire whether slaves were property. It was a very serious question when they came to make the constitution, what should be done with their slaves. They might have kept aloof from the constitution. That instrument was a compromise. It was a compact by which all are bound. We are to consider then what was the intention of the constitution. The words of it were used out of delicacy, so as not to offend some in the convention whose feelings were abhorrent to slavery; but we there entered into an agreement that slaves should be considered as property. Slavery would still have continued, if no constitution had 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, so curing 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."[29]

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 replegiando, upon which an issue was joined and tried in the New York circuit, and a verdict found that the man owed service to the person claiming him; on which verdict, judgment was rendered. The supreme court of New York decided, that the proper course then was for the recorder to grant a certificate allowing the removal of the fugitive.[30]

The constitutionality of a law of New York, which provides for the arrest of fugitive slaves, in a manner different in some respects from the act of Congress; and gives to one, claimed as a slave, the writ of homine replegiando against the person claiming the service—and suspends all proceedings before the judge or magistrate, and the removal of the slave under the certificate, until final judgment shall be given on this writ; was discussed in another case before the supreme court of the state of New York, which was heard in the same year.

Judge Nelson, who delivered the opinion of the supreme court on the question as to the effect of the act of Congress, and of the statute of New York, says—"To ascertain which is entitled to paramount authority, we must go back to the source of power—the provision of the constitution; that being conceded to be supreme, and any law in pursuance 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."

"It is material to look into the object of this clause of the constitution; the evil to be guarded against, and the nature and character of the rights to be protected and enforced, in order to comprehend its meaning and determine what powers and to what extent may be rightfully claimed under it."

"At the adoption of the constitution, a small minority of the states had abolished slavery within their limits, either by positive enactment or judicial adjudication; and the southern states are known to have been more deeply interested in slave labor than those of the north, where slavery yet to some extent existed, but where it must have been seen it would probably soon disappear. It was natural for that portion of the Union to fear, that the latter states might, under the influence of this unhappy and exciting subject, be tempted to adopt a course of legislation that would embarrass the owners pursuing their fugitive slaves, if not discharge them from service, and invite escape by affording a place of refuge. They already had some experience of the perplexities in this respect, under the confederation, which contained no provision on the subject; and the serious and almost insurmountable difficulties that this species of property occasioned in the convention, were well calculated to confirm their strongest apprehensions. To this source must be attributed, no doubt, the provision of the constitution, and which directly meets the evil, by not only prohibiting the states from enacting any regulation discharging the slave from service, but by directing that he shall be delivered up to the owner. It implies a doubt whether they would, in the exercise of unrestrained power, regard the rights of the owner, or properly protect them by local legislation. The object of the provision being thus palpable, it should receive a construction that will operate most effectually to accomplish the end consistent with the terms of it. This we may reasonably infer will be in accordance with the intent of the makers, and will regard, with becoming respect, the rights of those especially interested in its execution. Which power then, was it intended should be charged with the duty of prescribing the mode in which this injunction of the constitution should be carried into effect, and of enforcing its execution—the States or Congress? It is very clear, if left to the former, the great purpose of the provision might be defeated, in spite of the constitution. The States might omit any legislation on the subject, and thereby leave the owner without any known means by which to assert his rights; or they might so encumber and embarrass the prosecution of them, as that their legislation on the subject would be tantamount to denial. That all this could not be done, or omitted, without disregarding the spirit of the constitution, is true, but the provision itself is founded upon the assumption, that without it the acknowledged rights of the owners would not be observed or protected: it was made in express terms to guard against a possible act of injustice by the state authorities. The idea that the framers of the constitution intended to leave the regulation of this subject to the states, when the provision itself obviously sprung out of their fears of partial and unjust legislation by the states, in respect to it, cannot readily be admitted. It would present an inconsistency of action, and an unskilfulness in the adoption of means for the end in view, too remarkable to have been overlooked by a much less wise body of men. They must naturally have seen and felt, that the spirit apprehended to exisit in the States, which made this provision expedient, would be able to frustrate its object in regulating the mode and manner of carrying it into effect; that the remedy of the evil and the security of rights would not be complete, unless this power was also vested in the national government."

"I am satisfied from an attentive perusal of this provision, that a fair interpretation of the terms in which it is expressed, not only prohibits the States from legislation upon the question involving the owner's right to this species of labor, but that it is intended to give to Congress the power to provide the delivering up of the slave. It is peremptory and unqualified, that 'he shall be delivered up upon claim of the party to whom such service or labor may be due.' The right of the owner to reclaim the fugitive in the state to which he has fled, has been yielded to him by the States. Without this provision it would have been competent for them to have wholly denied such claim, or to have qualified it at discretion. All this power they have parted with; and the owner now has not only an unqualified right to the possession, but he has the guaranty of the constitution in respect to it. It is obvious, if Congress have not the power to prescribe the mode and manner of the 'delivering up,' and thereby provide the means of enforcing the execution of the rights secured by this provision, its solemn guaranty may be wholly disregarded, in defiance of the government. This power seems indispensable to enable it faithfully to discharge the obligation to the states and citizens interested. The subject itself, as well from its nature as from the persons alone interested in it, seems appropriately to belong to the national government. It concerns rights held under the laws, to be enforced within the jurisdiction of states other than those in which the citizens generally interested in them reside, and on a subject too, known deeply to affect the public mind; and in respect to which distinct and adverse interests and views had already appeared in the Union.—It was therefore fit and proper that the whole matter should be placed under the control of Congress, where the rights and interests of the different sections of the country, liable to be influenced by local and peculiar causes, would be regulated with an independent and impartial regard to all. It was a subject affecting citizens at the time, more or less, in almost every part of the Union—a uniform rule respecting which was desirable, and could be attained only by placing it under the action of the national government. We may add also, that as the power of legislation belonging to the states is in no instance derived from the constitution of the United States, but flows from their own sovereign authority, any law they might pass on the subject would not be binding beyond their jurisdiction—and any precept or authority given in pursuance of it, would convey none to the owner to remove the fugitive beyond it: the authority of each state through which it was necessary to pass would become indispensable."

"Great consideration also we think due to the law of 1793, as a contemporaneous exposition of the constitutional provision. It was passed about four years after the adoption of the constitution, by a Congress which included some of the most distinguished members of the convention. At the distance of forty years, we should hesitate long before we came to the conclusion that an error was committed in the construction of this instrument under such circumstances, and which has been ever since acquiesced in, so far as we know, without question. Our own statute books also show, that down to 1830, no attempt had been made here by state legislation to interfere with this regulation of Congress.

"Shall the certificate of the magistrate, under the law of 1793, which declares it 'shall be a sufficient warrant for removing the fugitive from labor to the state or territory from which he fled,' be permitted to perform its office?—or shall the writ under the state law prevent it? They are antagonist and irreconcilable powers, and the case forcibly exemplifies the impracticability and danger of the exercise of both upon the same subject, and the wisdom of the rule that forbids it. It has been said, that under the law of 1793 a free citizen might be seized and carried away into captivity; and hence the necessity of the law of the state, giving to him a trial by jury upon the question of freedom."

"The proceedings are before a magistrate of our own state, presumed to possess a common sympathy with his fellow-citizens; and where, upon the supposition that a freeman is arrested, he may readily procure the evidence of his freedom. If the magistrate should finally err in granting the certificate, the party can still resort to the protection of the national judiciary. The proceedings by which his rights have been invaded being under a law of Congress, the remedy for error or injustice belongs peculiarly to that high tribunal. Under their ample shield, the apprehension of captivity and oppression cannot be alarming.

"It is sufficient for this case, that the plaintiff was brought before an officer authorized by the law of Congress to hear and determine the question and grant the certificate—that such hearing did take place; and that the certificate was granted.

"According to the view of the case we have taken, the question of slave or not, according to the laws of the state from whence the fugitive fled, belonged to the magistrate under the law of Congress to decide; and his decision is conclusive in the matter, so far as the state courts are concerned."[31]

These extracts are from the opinion of a gentleman who has since been appointed to the high and responsible office of Chief Justice of the State. The opinion from which the extracts are made is, in all its parts, creditable to the judge who gave it, for the force of its views, and the ability with which they are urged: but it is still more creditable on other grounds. The judge has shown throughout, that the local prejudices and prepossessions of those amongst whom his lot has placed him are not sufficient to swerve him from a right decision, but that his duty to uphold the constitution and laws of the Union will he honestly and independently performed.

After this decision of the supreme court of the state of New York in the case of Jack v. Martin, the cause was removed in behalf of the slave into the court of errors—a court constituted of the president of the senate, chancellor of the state, judges of the supreme court, and all the senators. The hearing before the court of errors was in December, 1835.

Only two opinions were delivered at large. They were by the chancellor, and senator Bishop.

The chancellor, after remarking that the decision of the court below was put upon the ground that Congress not only had the power to legislate upon the subject, but that their legislation must necessarily be exclusive in relation to this matter, proceeded as follows:

"I am one of those who have been in the habit of believing, that the state legislatures had general powers to pass laws on all subjects, except those in which they were restricted by the Constitution of the United States, or their own local constitutions; and that Congress had no power to legislate on any subject, except so far as the power was delegated to it by the Constitution of the United States. I have looked in vain, among the powers delegated to Congress by the constitution, for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be embraced in the general grant of incidental powers, contained in the last clause of the constitution, relative to the powers of Congress. Const., art. 1, sec. 8, sub. 17. The law of the United States respecting fugitives from justice and fugitive slaves, is not a law to carry into effect any of the powers expressly granted to Congress, 'or any other power vested by the constitution in the government of the United States, or any department or officer thereof.' It appears to be a law to regulate the exercise of the rights secured to the individual states, or the inhabitants thereof, by the second section of the fourth article of the constitution; which section, like the ninth section of the fourth article, merely imposes a restriction and a duty upon other states and individuals in relation to such rights, but vests no power in the federal government, or any department or officer thereof, except the judicial power of declaring and enforcing the rights secured by the constitution. The act of February 1793, conferring ministerial powers upon the state magistrates, and regulating the exercise of the powers of the state executive, is certainly not a law to carry into effect the judicial power of the United States; which judicial power cannot be vested in state officers. If the provisions of the constitution as to fugitive slaves and fugitives from justice, could not be carried into effect without the actual legislation of Congress on the subject, perhaps a power of federal legislation might be implied from the constitution itself; but no such power can be inferred, from the mere fact that it may be more convenient that Congress should exercise the power, than that it should be exercised by the state legislatures. In these cases of fugitive slaves and fugitives from justice, it is not certain that any legislation whatever is necessary, or was contemplated by the constitution. The provision as to persons escaping from servitude in one state into another, appears by their journal to have been adopted by a unanimous vote of the convention. At that time, the existence of involuntary servitude, or the relation of master and servant, was known to and recognized by the laws of every state in the Union, except Massachusetts; and the legal right of recaption by the master existed in all, as a part of the customary or common law of the whole confederacy. On the other hand, the common law writ de homine replegiando, for the purpose of trying the right of the master to the services of the slave, was well known to the laws of the several states; and was in constant use for that purpose, except so far as it had been superseded by the more summary proceeding by habeas corpus, or by local legislation. The object of the framers of the constitution, therefore, was not to provide a new mode by which the master might be enabled to recover the services of his fugitive slave, but merely to restrain the exercise of a power, which the state legislatures respectively would otherwise have possessed, to deprive the master of such pre-existing right of recaption.

'"If the person whose services are claimed, is in fact a fugitive from servitude under the laws of another state, the constitutional provision is imperative, that he shall be delivered up to his master upon claim made; and any state officer or private citizen, who owes allegiance to the United States, and has taken the usual oath to support the constitution thereof, cannot, without incurring the moral guilt of perjury, do any act to deprive the master of his right of recaption, where there is no real doubt that the person whose services are claimed is in fact the slave of the claimant. However much, therefore, we may deplore the existence of slavery in any part of the Union, as a national as well as a local evil, yet, as the right of the master to reclaim his fugitive slave is secured to him by the federal constitution, no good citizen, whose liberty and property is protected by that constitution, will interfere to prevent this provision from being carried into full effect, according to its spirit and effect; and even where the forms of law are resorted to for the purpose of evading the constitutional provision, or to delay the remedy of the master in obtaining a return of his fugitive slave, it is undoubtedly the right, and may become the duty, of the court in which any proceedings for that purpose are instituted, to set them aside, if they are not commenced and carried on in good faith, and upon probable grounds for believing that the claim of the master to the service of the supposed slave is invalid."

The chancellor then examined the pleadings in the cause, by which the fact appeared to be admitted on the record, that the plaintiff owed service or labor to the defendant in another state, and had escaped from such servitude. Without reference to the validity of the act of Congress, or of any state legislation on the subject, he considered the fact thus admitted sufficient, under the constitution, to entitle the defendant to judgment for a return of the slave. And he therefore arrived at the conclusion, that the judgment of the supreme court should be affirmed with costs; and that the damages which the defendant in error had sustained, by the delay and vexation caused by the writ of error, should be awarded to her.

The course of reasoning of Senator Bishop, was similar to that used by Judge Nelson in the supreme court.

Upon the question being put—shall this judgment be reversed?—the members of the court unanimously voted in the negative. Whereupon, the judgment of the supreme court was affirmed.[32]

In a more recent case, a writ de homine replegiando having been sued out, a motion was made in August 1837, by the claimant of the alleged slave, to quash the writ on the strength of the previous decision of the supreme court. The court, Nelson, Chief Justice, presiding, directed the mo lion to be suspended until the next special term. In the meantime, the attorney for the plaintiff had leave to prepare and serve his declaration, and the attorney for the defendant had leave to plead the proceedings had before the recorder under the act of Congress; to which the plaintiff might demur, with a view to enter the formal judgment of the supreme court, so that the cause might be removed to the court of dernier resort in the state, for a final decision upon the constitutional question.[33]

Thus the matter stands in New York, according to the latest reports of decisions of that state. We have but little to add to what Judge Nelson has said upon the subject.

It is plain that, according to article 4, section 2, clause 3, of the constitution, a person held as a slave in one state, under the laws thereof, who escapes into another, is not to be discharged from slavery by means of any law or regulation existing in the state to which he escapes.

The owner's property being thus secured and protected by the constitution, he has the same right to take possession of his slave when he finds him in the state to which he escapes, that he would have in the state from which he escaped. As, upon an escape from one county into another of the same state, the owner may take possession of his slave in the latter county without any warrant or process whatever; so, upon an escape from one state into another of this Union, the owner may, in like manner, under the constitution which governs the Union, take possession of his slave without any warrant or process.

If, in the state to which the slave escapes, there be any state law or state regulation to prevent the owner of the slave from taking possession of his slave and carrying him away, such state law or state regulation violates the provision in the Constitution of the United States; and this constitution being the supreme law of the land, the state law or state regulation which violates the same is null and void.

But there may be a question, whether the person who is seized was in truth and in fact held to service in another state under the laws thereof. Is this question to be tried by a jury in the state in which the seizure takes place? Certainly not. The counsel who argued the case of Jack v. Martin before the court of errors, on behalf of the owner, very correctly observed, that "the constitution evidently contemplates a summary investigation. The fugitive is to be delivered up 'on claim.' These words import a summary proceeding." "If," said he, "it intended to declare that a fugitive servant should be delivered up after trial and judgment, attended with all the forms of the common law, the words 'on claim' would be idle. He could not be said to be delivered up on claim, whose surrender was the result of a final and conclusive judgment." The counsel said most truly, that "the citizens of the slave-holding states would never have consented to subject themselves to the necessity of establishing their claims to their fugitive slaves, before juries composed of the inhabitants of non-slave-holding states. Indeed, the difficulty of establishing the identity by proof that would satisfy the strict common law rules of evidence on jury trials, and the great delay and expense of successive appeals, would render even the successful prosecution of a claim to service, in the state in which the arrest is made, in the ordinary mode by trial and judgment, vexatious and unprofitable to the claimant."

All that the claimant has to do is to show, in a summary way, that the person whom he claims was his slave in another state.

Ought this inquiry to be gone into before any state tribunal, acting as such? It would seem not.

It was said by Gov. Randolph, in the Virginia convention, that "every government necessarily involves a judiciary, as a constituent part. If then a federal judiciary is necessary, what are the characters of its powers? That it shall be auxiliary to the federal government, support and maintain harmony between the United States and foreign powers, and between different states, and prevent a failure of justice in cases to which particular state courts are incompetent. If this judiciary be reviewed as relative to these purposes, I think it will be found that nothing is granted which does not belong to a federal judiciary. Self-defence is its first object. Has not the constitution said, that the states shall not use such and such powers, and given exclusive powers to Congress! If the state judiciaries could make decisions conformable to the laws of their states, in derogation to the general government, I humbly apprehend that the federal government would soon be encroached upon. If a particular state should be at liberty through its judiciary to prevent or impede the operation of the general government, the latter must soon be undermined. It is then necessary that its jurisdiction should extend to all cases in law and equity, arising under this constitution and the laws of the United States."[34]

In the convention of North Carolina, Mr. Davie said—"It appears to me that the judiciary ought to be competent to the decision of any question arising out of the constitution itself. On a review of the principles of all free governments, it seems to me also necessary that the judicial power should be co-extensive with the legislative. It is necessary in all governments, but particularly in a federal government, that its judiciary should be competent to the decision of all questions arising out of the constitution." Again, he said—"Every member who has read the constitution with attention, must observe that there are certain fundamental principles in it both of a positive and negative nature, which being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every member will agree, that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to be disregarded or violated. Without a judiciary, the injunctions of the constitution may be disobeyed, and the positive regulations neglected or contravened."[35]

If there be occasion for the exercise of judicial power in any case arising under the provision of the constitution in regard to fugitives from labor, such judicial power should be exercised, not by a state court, but, under art. 3, sec. 2, should be exercised by a court of the United States: and Congress should, under art. 1, sec. 17, make all laws necessary and proper for carrying into execution the power vested in the judicial department.


6. Decisions as to Fugitive Criminals.—Under the Constitution of the United States, a state within the Union has no more right to afford an asylum to a person charged with a crime in another state, than to those who have fled from service or labor. "The states," says Mr. Rawle, "are considered as a common family, whose harmony would be endangered if they were to protect and detain such fugitives, when demanded in one case by the executive authority of the state, or pursued in the other by the persons claiming an interest in their service."[36]

The question, whether theft is a felony of such a nature as to make it proper that the offender should be delivered up, has been discussed in the American courts, when the delivery was to be to a foreign state—and on that subject different opinions have been expressed; but the judges have all agreed as to the propriety of delivering up felons charged with stealing property in a state within the confederacy.

In the case of the People v. Schenck, 2 Johns. Rep. 479, the prisoner was indicted in the city of New York for felony in stealing a gun; and there was a special verdict, which found that the prisoner did feloniously steal and carry away the gun in the state of New Jersey. The supreme court of New York held, that the prisoner was entitled to be discharged upon the indictment in that state, but ordered that he should be detained in prison for three weeks; and, in the meantime, directed notice to be given to the executive of the state of New Jersey, that the prisoner was detained on a charge of felony committed there, stating that if no application should be made for the delivery of the prisoner within that time, he must be discharged.

In Simmons's case, 5 Binn. 617, the prisoner was indicted in the city of Philadelphia, for feloniously stealing and carrying away some silver spoons and other articles; and the special verdict found that the fact was committed within the state of Delaware. The supreme court of Pennsylvania approved of what was done in New York in the case of Schenck, and the proceeding was similar.

In carrying into effect the provision in the federal constitution, "We have," says Chief Justice Savage, "nothing to do with the comity of nations, unless perhaps to infer from it that the framers of our constitution and laws intended to provide a more perfect remedy; one which should reach every offence criminally cognizable by the laws of any of the states; the language being 'treason, felony or other crime.'"[37]

It was contended before the supreme court of New York, in Clark's case, that a crime of greater atrocity was intended by the constitution than was charged in that case—and indeed the ground was taken that no crime at all had been committed; for it was insisted that the statute of Rhode Island, which was alleged to have been violated, contemplated proceedings merely of a civil nature. Chief Justice Savage, who delivered the opinion of the court, answered the objection as follows: "The first answer is, that the statute of Rhode Island is not properly before us. An offence of a highly immoral character is stated in the warrant, and is certified by the Governor of Rhode Island to have been made criminal by the laws of that state. This is evidence enough, in this stage of the proceedings, of the nature of the offence; but if we look into the statute of Rhode Island, which has been informally read from their statute book, we find a criminal offence. It is this: 'That if any officer of a bank shall so fraudulently manage its concerns, that the public, or any individual dealing with it, shall be defrauded in the payment of their just demands, such officer shall be prosecuted in the supreme judicial court by indictment; and, on conviction, the offender may be fined $5000.' This is very plain language. There is to be a prosecution by indictment, and a fine is imposed which goes of course to the public—not to the party defrauded. There is nothing here like a civil remedy."[38]

"Had our constitution and laws," says Chief Justice Savage, "been silent on this subject, and no conventional arrangement existed between the several states composing our confederacy, it may be conceded that the practice arising from the comity of nations would be applicable; and before we would surrender in one state any person demanded by another as a fugitive from justice, it would be our duty to examine into the evidence of the alleged crime, and be satisfied that no reasonable doubt existed as to his guilt. But under our federal government, this matter has been regulated, and we are not left to the uncertainty arising from an inquiry in one state into the particulars of an offence committed in another. The Constitution of the United States provides, that 'a person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.' Here then is the law on the subject—a positive regulation, and tantamount to a treaty stipulation; and we are not to resort to the comity of nations for our guidance. Every person who is charged with a crime in any state, and shall flee in another, shall be delivered up. It is not necessary to be shown that such person is guilty. It is not necessary, as under the comity of nations, to examine into the facts alleged against him constituting the crime. It is sufficient that he is charged with having committed a crime."[39]

But how charged? The law of Congress has answered this question. In order, says the Chief Justice of New York, to give the Governor of this state jurisdiction in such a case, three things are requisite. 1. The fugitive must be demanded by the executive of the state from which he fled. 2. A copy of an indictment found, or an affidavit made before a magistrate, charging the fugitive with having committed the crime. 3. Such copy of the indictment or affidavit must be certified as authentic by the executive. If these pre-requisites have been complied with, then the warrant of the Governor properly issues and the prisoner is legally restrained of his liberty.[40]

In Clark's case, a habeas corpus was awarded, directed to the persons having him in custody, commanding them to bring him before the Chief Justice and to exhibit the cause of his detention. The return upon the writ of habeas corpus, showed that he was detained in custody by virtue of a warrant issued by the Governor of the state of New York, in the following words:

"Enos T. Throop, Governor of the state of New York, to the sheriff of the city and county of New York, and the sheriffs, constables, and other peace officers of the several counties in the said state: Whereas, it has been represented to me by the Governor of the state of Rhode Island, that John L. Clark, late of Providence, in the said state, has been guilty of frauds in abstracting from the Burrilville bank, in that state, money, notes, and bank bills, while president of said bank, in a fraudulent manner, which said acts are made criminal by the laws of that state; and that he has fled from justice in that state, and has taken refuge in the state of New York; and said Governor of Rhode Island has, in pursuance of the constitution and laws of the United States, demanded of me that I should cause the said John L. Clark to be arrested, and delivered into the custody of Henry G. Munford, sheriff of the county of Providence, who is duly authorized to receive him into his custody, and convey him back to the said state of Rhode Island: And, whereas, the said representation and demand is accompanied by an affidavit, taken before a justice of the peace of the said state of Rhode Island, whereby the said John L. Clark is charged with the said crime; which affidavit is certified by the said Governor of Rhode Island to he duly authenticated: You are therefore required to arrest the said John L. Clark, wherever he may be found within the state, and to deliver him into the custody of the said Henry G. Munford, to be taken back to the state from whence he fled, pursuant to the said representation. Given under my hand and the privy seal of the state, at the city of Albany, this fifth day of May, in the year of our Lord one thousand eight hundred and thirty-two."

The opinion of the court as to the validity of the cause of detention appearing by this return, was delivered by chief justice Savage as follows: "It is," said he, "there expressly recited—1. that the Governor of Rhode Island has demanded that John L. Clark be arrested and delivered up as a fugitive from justice; 2. that a copy of an affidavit was presented charging Clark with certain acts, which the governor of Rhode Island certifies are made criminal by the laws of that state; 3. that the affidavit is certified by the Governor of Rhode Island to be duly authenticated.—Here then is a literal compliance with the constitution and laws of the United States; and the Governor of New York had full power and authority to issue his warrant to direct Clark to be arrested, and delivered over to the agent of the state of Rhode Island."

Clark made an affidavit to the following effect: "that according to the information and belief of this deponent, and as he is advised by counsel and believes to be true, this deponent has not committed any act or thing recited in said warrant; and that he is not guilty of any act or thing which is a crime or made criminal under and by the laws of the state of Rhode Island, and which is made the pretence for said warrant and the arrest of this deponent; and this deponent wholly denies the guilt as recited in said warrant. This deponent expressly denies that he has fraudulently abstracted from the Burrilville bank of Rhode Island money, notes and bank bills while president of said bank, or at any time, or in any manner which is made criminal by the laws of that state. On the contrary thereof, this deponent says that he has not at any time abstracted or taken from said bank money, notes and bank bills, other than what has been paid to him by the cashier or other officer of that bank, and upon vouchers or discounted paper entered in course of business upon the books of the bank, and sanctioned by the direction or some part thereof, or committees, or persons duly authorised in the premises."

Chief Justice Savage delivered the opinion of the court as to the effect of this affidavit, as follows: "The prisoner has made an affidavit denying all criminality or fraud in relation to the Burrilville bank which are charged against him in the affidavit presented to the Governor of this state. But whether he is guilty or not is not the question to be decided here. It is whether he has been properly charged with guilt, according to the constitution and the act of Congress. The prisoner does not deny any fact set forth in the warrant upon which he has been arrested. It is not denied that the Governor of Rhode Island has demanded him as a fugitive from justice. It is not denied that an affidavit charging him with criminality was presented to the Governor of New York; nor is it denied that the Governor of Rhode Island has certified that that affidavit is properly authenticated. These are the material facts. Governor Throop does not assert the prisoner's guilt, but that he had before him such evidence as the law directed to authorize the issuing his warrant. Whether the prisoner is guilty or innocent is not the question before us; nor is any judicial tribunal in this state charged with that inquiry. By the constitution, full faith and credit are to be given in all the states to the judicial proceedings of each state. When such proceedings have been had in one state as ought to put any individual within it upon his trial, and those proceedings are duly authenticated, full faith and credit shall be given to them in every other state. If such person flee to another state, it is not necessary to repeat in such state to which he has fled the initiatory proceedings which have already been had, but he is to be sent back to be tried where the offence is charged to have been committed—to have the proceedings consummated where they were begun."


7. Duty of Executive Officers in relation to fugitive criminals.—All executive officers of the states are bound by oath or affirmation to support the Constitution of the United States. Art. 6, sec. 2.

This constitution and the laws of the United States made in pursuance thereof, are the supreme law of the land, and the judges in every state are bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding. Art. 6, sec. 2.

The supreme law of the land has been so expounded by the judges of the supreme court of the state of New York as to give to it full effect. A very different exposition has been made by the executive of that state.

We premise that by the laws of Virginia, any person who shall steal a slave is guilty of felony, and upon conviction thereof is to undergo a confinement in the penitentiary for a period not less than three nor more than eight years. 1 R. C. 1819, p. 427-8, sec. 29.

The executive authority of Virginia, in July last, demanded three persons of the executive authority of New York, as fugitives from justice, to wit; Peter Johnson, Edward Smith and Isaac Gansey. There was produced to the executive of New York, an affidavit made before a magistrate of Virginia by one John G. Colley of Norfolk borough. The affidavit was dated the 22d of July 1839, and charged "that on or about the 15th inst. Peter Johnson, Edward Smith and Isaac Gansey, now attached to the schooner Robert Center, at present in New York, did feloniously steal and take from the said Colley a certain negro man slave named Isaac, the property of said Colley." And this affidavit was certified as authentic by the executive of Virginia. It thereupon became the duty of the executive of New York, according to the constitution and laws of the United States, and according also to the decisions of the supreme court of the state of New York, to cause the persons so demanded to be arrested and delivered to the proper agent of the executive of Virginia.

This the Governor of New York has declined doing. In a communication of the 16th of September 1839, to the executive of Virginia, he takes the following ground:

"I beg leave to state most respectfully, that, admitting the affidavit to be sufficient in form and substance to charge the defendants with the crime of stealing a negro slave from his master in the state of Virginia, as defined by the laws of that state, yet in my opinion, the offence is not within the meaning of the Constitution of the United States. The words employed in the constitution, 'treason, felony or other crime,' are indeed very comprehensive. It has long been conceded that citizens of the state upon which the requisition is made, are liable to be surrendered, as well as citizens of the state making the demand; and it is further regarded as settled, that the discretion of the executive in making the demand is unlimited, while the executive upon whom it is made has no legal right to refuse compliance, if the offence charged is an act of 'treason, felony or other crime,' within the meaning of the constitution. Can any state at its pleasure declare an act to be treason, felony or other crime, and thus bring it within the constitutional provision? I confess that such does not seem to me the proper construction of the constitution. After due consideration, I am of opinion that the provision applies only to those acts which, if committed within the jurisdiction of the state in which the person accused is found, would be treasonable, felonious or criminal, by the laws of that state."

The correspondence which we are now considering, furnishes evidence that the Governor of the state of New York is an able man; and we do not consider it any reproach to him, that he is not perfectly familiar with the decisions of the supreme court of his own state upon questions of constitutional law. But it is cause of regret that he did not, before affirming so important a proposition as that contained in the last sentence above quoted, consult with his attorney general. Had he done so, he must have learnt from him that the supreme court of New York had pronounced a different decision, in Clark's case.

The Governor of New York proceeds as follows: "I do not question the constitutional right of a state to make such a penal code as it shall deem necessary or expedient, nor do I claim that citizens of another state shall be exempted from arrest, trial and punishment, in the state adopting such code, however different its enactments may be from those existing in their own state. The true question is, whether the state of which they are citizens, is under a constitutional obligation to surrender its citizens to be carried to the offended state, and there tried for offences unknown to the laws of their own state. I believe the right to demand, and the reciprocal obligation to surrender fugitives from justice, between sovereign and independent nations, as defined by the law of nations, includes only those cases in which the acts constituting the offence charged are recognized by the universal law of all civilized countries."

Chancellor Kent has expressed the opinion, that those crimes "which strike deeply at the rights of property and are inconsistent with the safety and harmony of commercial intercourse, come within the mischief to be prevented, and within the necessity as well as the equity of the remedy. If larceny may be committed and the fugitive protected, why not compound larceny, as burglary and robbery—and why not forgery and arson? They are all equally invasions of the rights of property." This language is used by the chancellor when discussing the propriety of delivering up one charged with having committed a theft in a foreign state.[41] And all can see, that it applies with increased force to a crime which strikes deeply at the rights of property in the south, is inconsistent with the harmony of intercourse between citizens of the northern and southern states, and tends to impair the permanence of the Union and the safety of the general government. Such a crime comes within the mischief which the Constitution of the United States designed to prevent, and the remedy should be extended to it when the terms that are employed are abundantly sufficient to embrace it.

The Governor of New York, after stating that the obligation to surrender under the law of nations, includes only those cases in which the acts constituting the offence charged are recognized by the universal law of all civilized countries, proceeds as follows:

"I think it is also well understood, that the object of the constitutional provision in question, was to recognize and establish this principle in the mutual relations of the states, as independent, equal and sovereign communities. As they could form no treaties between themselves, it was necessarily engrafted in the constitution. I cannot doubt that this construction is just. Civil liberty would be very imperfectly secured in any country, whose government was bound to surrender its citizens to be tried and condemned in a foreign jurisdiction, for acts not prohibited by its own laws. The principle, if adopted, would virtually extend the legislation of a state beyond its own territory and over the citizens of another state, and acts which the policy and habits of one state may lead its legislature to punish as felony, must be considered of that heinous character in another state for certain purposes, while for all other purposes they would be regarded only as violations of moral law. In some of the states of the Union, adultery is made a felony; in another, the being the father of an illegitimate child is made a crime; and in another, marriage without license or other formalities is penal. To admit the principle that violations of these and similar laws, which are in their character mere municipal regulations, adapted to the policy of a particular community, are "felonies" and "crimes," within the meaning of the constitution, would involve the most serious consequences, by imposing obligations which it would be impossible to execute. It is evident there must be some limit to the description of crimes meant by the constitution; and that which I have applied in this instance seems to me to give full and fair scope to the provision, and at the same time preserve the right of exclusive legislation to each state over persons confessedly within its jurisdiction, while it preserves that harmony which is so essential to our mutual interest."

It must in candor be acknowledged that there is a good deal of force in some of these observations; and that there is difficulty in holding the term crime, in the constitution, as synonymous with offence. But there is no difficulty at all in establishing, that, when the Governor of New York takes the ground that he will not deliver up a person charged in another state with a crime, unless the fact charged be recognized as an offence by the laws of all civilized countries, and would if committed in New York be an offence according to the laws of that state, he takes ground which is wholly untenable, according to the decision of the supreme court of his own state in Clark's case, and sets up a new principle, entirely different from that which was acted on by his predecessor, Governor Throop.

By the laws of Virginia, if any officer of public trust in the commonwealth, or any officer or director of any bank chartered by the commonwealth, shall embezzle, or fraudulently convert to his use, any sum of money, bank note, bill, check, bond or other security or facility placed under his care or management, by virtue of his office, or place, the person so offending is guilty of felony, and, upon conviction thereof, is to be sentenced to imprisonment in the public jail and penitentiary house, for a term not less than three nor more than ten years. Scss. acts, 1819-20, p. 19, ch. 32, sec. 2. Though the act thus made felony by the laws of Virginia, was by the common law of England only a breach of trust and not punishable criminally, a person charged in Virginia with this offence, who should flee from justice and be found in another state, would, according to governor Throop and the supreme court of New York, be delivered up "to the state having jurisdiction of the crime." But according to governor Seward, the fact charged not being recognized as a crime by the universal law of all civilized countries, there would be no surrender. We have no hesitation in declaring, that it seems to us it would be a violation of the federal constitution not to make the surrender in such a case.

"However the point may be," says Mr. Justice Story, "as to foreign nations, it cannot be questioned that it is of vital importance to the public administration of criminal justice, and the security of the respective states, that criminals who have committed crimes therein, should not find an asylum in other states, but should be surrendered up for trial and punishment. It is a power most salutary in its general operation, by discouraging crimes and cutting off the chances of escape from punishment. It will promote harmony and good feeling among the states; and it will increase the general sense of the blessings of the national government. It will moreover give strength to a great moral duty, which neighboring states especially owe to each other, by elevating the policy of the mutual suppression of crimes into a legal obligation. Hitherto it has proved as useful in practice as it is unexceptionable in its character."[42]

Governor Seward thus proceeds: "The offence charged in the affidavit before me, is not understood to be that of kidnapping a person, by which he was deprived of his liberty, or held in duress, or suffered personal wrong, or injustice, but it is understood to mean the taking of a slave, considered as property, from the owner. If I am incorrect in this supposition, the vagueness and uncertainty of the affidavit must excuse my error. But I think there can be no controversy on this point. I need not inform you, sir, that there is no law of this state which recognizes slavery, no statute which admits that one man can be the property of another, or that one man can be stolen from another. On the other hand, our constitution and laws abolish slavery in every form. The act charged in the affidavit, if it had been committed in this state, would not contravene any statute; nor is it necessary to inform you that the common law, which is in force in this state when not abrogated by statute, does not recognize slavery, nor make the act of which the parties are accused in this case felonious or criminal."

The decisions of the supreme court of New York, show that until a very recent period, the laws of that state recognized slavery, and her statutes admitted that one man might be the property of another. Such property was the subject of sale, and the owner's rights were protected by the laws.

It may however be conceded, that the act charged in the affidavit, it it had been committed in New York, would not have contravened any existing statute of that state, making such an act felonious, or criminal. It might further be conceded, the the act of stealing a slave could not be deemed a common law felony. And still the conclusion, that the act charged in the affidavit is not a felony or crime, within the meaning of the federal constitution, is one which cannot be sustained, if the precedent of governor Throop be correct, and the opinion of the supreme court of New York be a sound exposition of the constitutional obligation to surrender.

Nay more, it is not necessary to call in aid that precedent and that opinion to the whole extent that they authorize. The conclusion that the fact charged in the affidavit is not a felony, or crime, within the meaning of the federal constitution, is untenable upon another ground. In a communication of the 4th of October 1839, from the Lieutenant Governor of Virginia to the Governor of New York, this language is used—"Is it true that the offence committed by Peter Johnson, Edward Smith and Isaac Gansey, is not recognized as criminal by the 'universal law of all civilized countries'? They are charged with feloniously stealing from John G. Colley, a citizen of this state, property which could not have been worth less than six or seven hundred dollars. And I understand stealing to be recognized as crime by all laws, human and Divine." In Governor Seward's reply of the 24th of October 1839, he says—"It is freely admitted that the argument would be at an end, if it were as clear that one human being may be the property of another as it is that stealing is a crime." It might not be going too far to say, that stealing property is recognized as crime by all laws, and that any state may make that property which she pleases. But here the question is not between Virginia, whose laws recognize slaves as property, and a foreign state, whose laws recognize no such property. The question is very different. It is between Virginia, under whose laws slaves are property, and New York, who has made a compact with Virginia recognizing this very kind of property. 'New York has said to Virginia, that if she will come into the Union with her, a constitution shall be adopted for the government of the states, by which New York will agree that, no matter what laws or regulations New York may herself adopt to abolish slavery within her borders, persons held as slaves in Virginia, under her laws, who may escape into New York, shall not be discharged from slavery; but the right of property of the owners shall be respected in New York, and the slaves shall be delivered up on claim of the owners. New York has further agreed by the same constitution, that a person charged in Virginia with a crime, who shall flee from justice and be found in New York, shall be delivered up to be removed to Virginia. After a union of the states has been formed, based upon the provisions contained in this constitution, a person charged in Virginia with stealing property, flees from justice and is found in New York; Virginia demands the fugitive, and New York refuses to deliver him up. New York, while so refusing admits that if the person is charged with a crime he ought to be delivered up: and she admits that stealing property is a crime. But the ground of her refusal is that nothing was stolen except a person held as a slave, and that a person held as a slave is not property by the laws of New York.

We trust that it is not yet come to this, that New York shall be told in vain that she herself has said, persons held in Virginia as slaves sball be recognized as property. We trust it is not too late to remind her, that she has so said in a Constitution which she agreed should be her supreme law, and which she declared the members of her state legislature, and all her executive and judicial officers, should be solemnly pledged to support.

C. R.

  1. Winchester, &c. v. Hatfield, &.c.: 4 Mass. Rep. 123.
  2. Lanesborough v. Westfield: 16 Mass. Rep. 74.
  3. See Kent J. in Sable v. Hitchcock: 2 Johns. cas. 85; Concklin v. Havens: 12 Johns. 314.
  4. Sable v. Hitchcock: 2 Johns. cas. 79; Cæsar v. Peabody: 11 Johns. 68; Gilston v. Russell, &c.: 11 Johns. 415
  5. Scidmore v. Smith: 13 Johns. 322.
  6. Smith v. Hoff: 1 Cow. 127.
  7. Griffin v. Potter: 14 Wend. 269
  8. 2 Kent's Com. 257.
  9. Mulller v. Dwelling: 14 Serg. and Rawle, 442
  10. Pirate alias Belt, v. Dalby: 1 Dall. 167.
  11. Yeates J. in Com v. Hollaway: 2 Serg. and Rawle, 308
  12. Elliot's Debates: vol. 2, p. 450.
  13. By southern states, was meant South Carolina and Georgia
  14. Elliott's Debates: vol. 2, p. 335-6.
  15. Elliott's Debates: p. 433.
  16. Id. vol. 2, p. 437.
  17. Elliot's Debates: vol. 2, p. 157.
  18. Id.: vol. 1, p. 124
  19. Ex parte Simmons: 4 Wash. C. C. R. 396.
  20. Butler, &c. v. Delaplaine: 7 Serg. and Rawle, 378.
  21. Com. v. Holloway: 2 Serg. and Rawle, 305.
  22. Glen v. Hodges: 9 Johns. 62.
  23. Com. v. Holloway: 3 Serg. and Rawle, 4.
  24. Washington J. in Hill v. Low: 4 Wash. C. C. R. 329.
  25. Id. 330.
  26. Id. 331.
  27. Washington J. in Worthington v. Preston: 4 Wash. C. C. R. 463.
  28. Case of Wright v. Deacon: 5 Serg. and Rawle, 62.
  29. Com. v. Griffith: 2 Pick. 11.
  30. Floyd v. Recorder of New York: 11 Wend. 180.
  31. Jack v. Martin: 12 Wend. 311.
  32. 14 Wend. 507, 539.
  33. Dixon v. Allender: 18 Wend. 678.
  34. Elliott's Debates: vol. 2, p. 418.
  35. Id. vol. 3, p. 141.
  36. Rawle on the constitution: p. 99.
  37. Clark's case: 9 Wend. 222.
  38. 9 Wend. 221.
  39. 9 Wend. 218, 219.
  40. Id. 219.
  41. Washburn's case: 4 Johns. ch. rep. 113.
  42. Story on Const, vol. 3, p. 676.

This work was published before January 1, 1924, and is in the public domain worldwide because the author died at least 100 years ago.