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"The Constitution does not prescribe the mode of reclaiming a slave, but leaves it to be determined by Congress. It is very clear that it was not intended that application should be made to the executive authority of the State. It is said that the Act which Congress has passed on this subject is contrary to the amendment of the Constitution, securing the people in their persons and property against all 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.

"But 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 way, 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."

1

Thacher, J., dissenting, said: "Though I agree to many things said by the Chief Justice, I do not entirely coincide with him. I am not disposed to question the constitutionality of the statute, but I think that the seizures should be made in conformity to the laws of the several States, and not in violation

The argument of counsel on the prevailing side may throw some light on the language of the court. (2 Pick. 13.) Mr. Merrick said:-"So the clause against unreasonable searches and seizures does not protect a slave, and he may be seized without the intervention of a warrant; and where is the danger in allowing a master to seize his slave in another State? He infringes no right of such State, and such State cannot alter the rights of the master. If he seizes a freeman, he does it at his peril. He cannot plead a mistake in the person. He must prove his property fully. If Congress had made no law on the subject, the master would have a right to take his property, for the State cannot divest him of it. This is, indeed, a great power, greater than we should be willing, in Massachusetts, to allow to any person; but slavery is tolerated by the Constitution of the United States, to which we are a party. There is the same violation of principle in permitting it to exist in the southern States, as in permitting the owner of a slave to come here to seize him." Mr. Morton, on the same side, ib. p. 13, said:-" The relation of a slave to his owner may be compared to that between master and apprentice, bail and principal; in which cases no warrant is necessary."

of the laws of any one of them. The laws here do not recognize a slave; every person is a freeman, and entitled to the privileges of a freeman, one of which is to be secure against all seizures, &c., without a complaint upon oath. I admit that in the southern States they may seize a slave without a warrant, because it is according to the laws of those States. But it does not follow that the same may be done here. I think that it is the intention of the statute that the seizure of a slave here shall be by process of law here. The complaint should not state that Randolph was a slave-for our law knows no such creature-but that he was a person held to service by the laws of Virginia. I admit that Congress might prescribe a new method of apprehending a fugitive from service which should supersede our law. In the case before the court, the defendant, in my opinion, violated the law of our State."

The reporter adds:-"The Chief Justice then remarked that the construction now given by the court to this statute had been adopted ever since the federal Constitution went into operation, by Lowell and Davis, Justices of the District Court of the United States."

804. The first opinion directly sustaining the doctrine that the claimant may seize and remove the alleged fugitive under the provision itself seems to be that of Nelson, Ch. J., in Jack v. Martin, 12 Wend., 14 Wend. ;' and it would seem that even Chancellor Walworth might be taken to have supported the doctrine; for though the Chancellor speaks of the writs of personal replevin and habeas corpus as means of disputing the master's right to the possession of the alleged slave, he would appear to hold that, if the master can remove the slave from the State before any such writ can be served on him, such removal would be lawful; that the State would have no right to regard such an act as an infringement of her sovereignty, or enact any law against such a removal."

§ 805. But the leading authority on this point is Prigg's case. It is difficult to see how a judge could agree in the judgment of the court without supporting the right to seize and

1 See counsel in Prigg's case, 16 Peters, 578.
2 See the abstract of the report, ante, § 743.

remove the fugitive by the provision alone. In the judgment, as has been seen, all the judges concurred.'

Judge Wayne supported the opinion of Judge Story in all respects, and, 16 Peters, 646, said:-"The provision contemplates, besides the right of seizure by the owner, that a claim may be made where a seizure has not been effected, or afterwards, if his right shall be contested. That the claim shall be good upon the showing by the claimant that the person charged as a fugitive owes service or labor under the laws of the State from which he fled." It appears, from this, that Judge Wayne considered the right of one party and the obligation of the other as determined by the first part of the clause, not by the words claim and delivery. Judge Wayne (ib. 647) speaks of the State Legislature as "denying to an owner the right to use a casual opportunity to repossess himself of this kind of property, which there is a right to do in respect to all other kinds of property, where not in the possession of some one else.""

Chief Justice Taney said, ib. 626:-"I agree entirely in all that is said in relation to the right of the master, by virtue of the third clause of the second section of the fourth article of the Constitution of the United States, to arrest his fugitive slave in any State wherein he may find him. He has a right, peaceably, to take possession of him and carry him away without any certificate or warrant from a judge of the District or Circuit Court of the United States or from any magistrate of the State, and whoever resists or obstructs him is a wrongdoer, and every State law which proposes directly or indirectly to authorize such resistance or obstruction is null and void and affords no justification to the individual or the officer of the State who acts under it. This right of the master being given by the Constitution of the United States, neither Congress nor a State legislature can by any law or regulation impair it or restrict it." And again, ib. 628, the Chief Justice said:

1 Ante, § 755.

2 Yet Judge Wayne said. ib. 640:—“ Such a certificate, too, being required, protects persons who are not fugitives from being seized and transported." How can this be if no certificate is necessary? Judge Wayne, in the passage cited in the text above, had spoken of the slave as that which could be seized because property. Ib. 641, he said:-"The object is to secure the property of some of the States, and the individual rights of their citizens in that property." Judge

"The Constitution of the United States and every article and clause in it is a part of the law of every State in the Union, and is the paramount law. The right of the master therefore to seize his fugitive slave is the law of each State, and no State has the power to abrogate or alter it."

Judge Thompson's language, already cited,' taken in connection with his having concurred in the judgment of the court, supports the same doctrine, even while he asserts the necessity of legislation.

Judge Daniel's language, already cited, is consistent with the doctrine of seizure and removal, by affirming that the Constitution guarantees "to the owner the right of property in his slave."

2

Judge Baldwin also held that, if the person seized was actually the slave, the removal was not kidnapping.'

§ 806. The greater portion of Judge McLean's separate Opinion, in Prigg's case, was devoted to an argument against the doctrine.* As this Opinion is the most prominent, if not

Taney, ib. 629, speaks of the right of the owner as an "individual right," and the provision as "a positive and express stipulation for the security of certain individual rights of property in the several States." This language resembles Judge Baldwin's, in Johnson v. Tompkins, ante, p. 445, note.

2

Ante, p. 489.

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'Ante, § 758. Ante, p. 491. 16 Peters, 666, Judge McLean says:-"I come now to a most delicate and important inquiry in this case, and that is, whether the claimant of a fugitive from labor may seize and remove him by force out of the State in which he may be found, in defiance of its laws. I refer not to laws which are in conflict with the Constitution or the act of 1793. Such State laws, I have already said, are void. But I have reference to those laws which regulate the police of the State, maintain the peace of its citizens, and preserve its territory and jurisdiction from acts of violence."

Judge McLean then relates the circumstances of the controversy between Virginia and Pennsylvania, in 1792 (ante, § 696). He then says, p. 667:-" Both the Constitution and the act of 1793, require the fugitive from labor to be delivered up on claim being made, by the party or his agent, to whom the service is due. Not that a suit should be regularly instituted. The proceeding authorized by the law is summary and informal. The fugitive is seized by the claimant, and taken before a judge or magistrate within the State, and on proof, parol or written, that he owes labor to the claimant, it is made the duty of the judge or magistrate to give the certificate, which authorizes the removal of the fugitive to the State from whence he absconded.

"The counsel inquire of whom the claim shall be made. And they represent that the fugitive, being at large in the State, is in the custody of no one, nor under the protection of the State; so that the claim cannot be made, and consequently that the claimant may seize the fugitive and remove him out of the State.

"A perusal of the act of Congress obviates the difficulty, and the consequence which is represented as growing out of it.

"The act is framed to meet the supposed case. The fugitive is presumed to be at large, for the claimant is authorized to seize him. After seizure, he is in

the only one, delivered in a case wherein the question was directly in issue, denying the right to seize and remove the fugitive, either under the provision or the Act of Congress, it is given at length in the note below. Some passages in the same extract will hereinafter be cited in considering the question, whether the action of State magistrates, under the law of 1793,

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custody; before it, he was not. And the claimant is required to take him before a judicial officer of the State; and it is before such officer his claim is to be made. To suppose that the claim is not to be made, and indeed cannot be, unless the fugitive be in the custody or possession of some public officer or individual, is to disregard the letter and spirit of the act of 1793. There is no act in the statute book more precise [668] in its language; and, as it would seem, less liable to misconstruction. In my judgment, there is not the least foundation in the act for the right asserted in the argument, to take the fugitive by force and remove him out of the State.

"Such a proceeding can receive no sanction under the act, for it is in express violation of it. The claimant having seized the fugitive, is required by the act to take him before a federal judge within the State, or a State magistrate within the county, city, or town corporate, within which the seizure was made. Now, can there be any pretence that after the seizure under the statute, the claimant may disregard the other express provision of it, by taking the fugitive without claim out of the State? But it is said, the master may seize his slave wherever he finds him, if by doing so he does not violate the public peace; that the relation of master and slave is not affected by the laws of the State, to which the slave may have fled, and where he is found.

"If the master has a right to seize and remove the slave without claim, he can commit no breach of the peace by using all the force necessary to accomplish his object.

"It is admitted that the rights of the master, so far as regards the services of the slave, are not impaired by this change; but the mode of asserting them, in my opinion, is essentially modified. In the State where the service is due, the master needs no other law than the law of force to control the action of the slave. But can this law be applied by the master in a State which makes the act unlawful?

"Can the master seize his slave and remove him out of the State in disregard of its laws, as he might take his horse which is running at large? This ground is taken in the argument. Is there no difference in principle in these cases?

"The slave, as a sensible and human being, is subject to the local authority into whatsoever jurisdiction he may go. He is answerable under the laws for his acts, and he may claim their protection. The State may protect him against all the world except the claim of his master. Should any one commit lawless violence on the slave, the offender may unquestionably be punished; and should the slave commit murder, he may be detained and punished for it by the State, in disregard of the claim of the [669] master. Being within the jurisdiction of a State, a slave bears a very different relation to it from that of mere property.

"In a State where slavery is allowed, every colored person is presumed to be a slave; and, on the same principle, in a non-slaveholding State, every person is presumed to be free without regard to color. On this principle the States, both slaveholding and non-slaveholding, legislate. The latter may prohibit, as Pennsylvania has done under a certain penalty, the forcible removal of a colored person out of the State. Is such law in conflict with the act of 1793?

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The act of 1793 authorizes a forcible seizure of the slave by the master, not to take him out of the State, but to take him before some judicial officer within it. The act of Pennsylvania punishes a forcible removal of a colored person out of the State. Now, here is no conflict between the law of the State and the law of

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