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." a

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.

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." "

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 . Tompkins, ante, p. 445, note.

Ante, § 758.

* Ante, p. 489.

Ante, p. 491.

16 Peters, 666, Judge McLean says: "I come now to a most delicate and im portant 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,

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 ?

"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

involved an exercise of the judicial power. In view of such citation, some words in the extract here given are italicized, though not so printed in the report.

Congress. The execution of neither law can, by any just interpretation, in my opinion, interfere with the execution of the other. The laws in this respect stand in harmony with each other.

"It is very clear that no power to seize and forcibly remove the slave without claim is given by the act of Congress. Can it be exercised under the Constitution? Congress have legislated on the constitutional power, and have directed the mode in which it shall be executed. The act, it is admitted, covers the whole ground; and that it is constitutional there seems to be no reason to doubt. Now, under such circumstances, can the provisions of the act be disregarded, and an assumed power set up under the Constitution? This is believed to be wholly inadmissible by any known rule of construction,

The terms of the Constitution are general, and, like many other powers in that instrument, require legislation. In the language of this Court in Martin e. Hunter, 1 Wheat. Rep. 304, the powers of the Constitution are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.'

“This, Congress have done by the act of 1793. It gives a summary and effectual mode of redress to the master, and is he not [670] bound to pursue it? It is the legislative construction of the Constitution; and is it not a most authoritative construction? I was not prepared to hear the counsel contend that, notwithstanding this exposition of the Constitution, and ample remedy provided in the act, the master might disregard the act and set up his right under the Constitution. And having taken this step, it was easy to take another, and say that this right may be asserted by a forcible seizure and removal of the fugitive.

"This would be a most singular constitutional provision. It would extend the remedy by recaption into another sovereignty, which is sanctioned neither by the common law nor the law of nations. If the master may lawfully seize and remove the fugitive out of the State where he may be found, without an exhibition of his claim, he may lawfully resist any force, physical or legal, which the State, or the citizens of the State, may interpose.

"To hold that he must exhibit his claim in case of resistance, is to abandon the ground assumed. He is engaged, it is said, in the lawful prosecution of a constitutional right. All resistance, then, by whomsoever made, or in whatsoever form, must be illegal. Under such circumstances the master needs no proof of his claim, though he might stand in need of additional physical power. Having appealed to this power, he has only to collect a sufficient force to put down all resistance and attain his object. Having done this, he not only stands acquitted and justified; but he has recourse for any injury he may have received in overcoming the resistance.

"If this be a constitutional remedy, it may not always be a peaceful one. But if it be a rightful remedy, that it may be carried to this extent, no one can deny. And if it may be exercised without claim of right, why may it not be resorted to after the unfavorable decision of the judge or magistrate? This would limit the necessity of the exhibition of proof by the master to the single case where the slave was in the actual custody of some public officer. How can this be the true construction of the Constitution? That such a procedure is not sanctioned by the act of 1793 has been shown. That act was passed expressly to guard against acts of force and violence.

"I cannot perceive how any one can doubt that the remedy [671] given in the Constitution, if indeed it give any remedy without legislation, was designed to be a peaceful one; a remedy sanctioned by judicial authority; a remedy guarded by the forms of law. But the inquiry is reiterated, is not the master entitled to his property? I answer that he is. His right is guarantied by the Constitution, and

807. In Richardson's case (1846), before the Supreme Court of Ohio, Cuyahoga County, 3 West. L. Journal, 563, the defendant was under arrest, charged with violation of the State law, having aided in seizing and carrying out of the

the most summary means for its enforcement is found in the act of Congress. And neither the State nor its citizens can obstruct the prosecution of this right.

"The slave is found in a State where every man, black or white, is presumed to be free; and this State, to preserve the peace of its citizens, and its soil and jurisdiction from acts of violence, has prohibited the forcible abduction of persons of color. Does this law conflict with the Constitution? It clearly does not, in its terms.

“The conflict is supposed to arise out of the prohibition against the forcible removal of persons of color generally, which may include fugitive slaves. Prima facie it does not include slaves, as every man within the State is presumed to be free, and there is no provision in the act which embraces slaves. Its language clearly shows, that it was designed to protect free persons of color within the State. But it is admitted, there is no exception as to the forcible removal of slaves. And here the important and most delicate question arises between the power of the State, and the assumed, but not sanctioned, power of the federal government.

No conflict can arise between the act of Congress and this State law. The conflict can only arise between the forcible acts of the master and the law of the State. The master exhibits no proof of right to the services of the slave, but seizes him and is about to remove him by force. I speak only of the force exerted on the slave. The law of the State presumes him to be free, and prohibits his removal. Now, which shall give way, the master or the State? The law of the State does, in no case, discharge, in the language of the Constitution, the slave from the service of his master.

"It is a most important police regulation. And if the master violate it, is he not amenable? The offence consists in the abduction of a person of color. And this is attempted to be justified upon the simple ground that the slave is property. That a [672] slave is property must be admitted. The State law is not violated by the seizure of the slave by the master, for this is authorized by the act of Congress; but by removing him out of the State by force, and without proof of right, which the act does not authorize. Now, is not this an act which a State may prohibit? The presumption, in a non-slaveholding State, is against the right of the master, and in favor of the freedom of the person he claims. This presumption may be rebutted, but until it is rebutted by the proof required in the act of 1793, and also, in my judgment, by the Constitution, must not the law of the State be respected and obeyed?

"The seizure which the master has the right to make under the act of Congress is for the purpose of taking the slave before an officer. His possession of the slave within the State, under this seizure, is qualified and limited to the subject for which it was made.

"The certificate of right to the service of the slave is undoubtedly for the protection of the master; but it authorizes the removal of the slave out of the State where he was found, to the State from whence he fled. And under the Constitution this authority is valid in all the States.

"The important point is, shall the presumption of right set up by the master, unsustained by any proof, or the presumption which arises from the laws and institutions of the State, prevail? This is the true issue. The sovereignty of the State is on one side, and the asserted interest of the master on the other. That interest is protected by the paramount law, and a special, a summary, and an effectual mode of redress is given. But this mode is not pursued, and the remedy is taken into his own hands by the master.

"The presumption of the State that the colored person is free may be erroneous in fact; and if so, there can be no difficulty in proving it. But may not the