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.

46

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 v. 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 ap pealed 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

State a negro," without a right of property in him being first established." It does not appear that any evidence whatever was offered in this case that the person carried away was a fugitive slave.' It was held by the court, Wood, Ch. J., and Burchard, J., that all State legislation on the subject is void so far as it interferes with that right to "arrest and return the slave to the State from whence he fled, without the aid of State authority," and the prisoner was discharged. The doctrine is the same which had been affirmed in Prigg's case.

808. In the case of Belt (1848), 1 Parker's Cr. R. 169, he had been seized, without process, in the city of New York, and removed to Gravesend, in Kings county, and there detained, with what design does not appear. The claimant had not applied for a certificate under the statute to any magistrate before he demanded it in making return to the habeas corpus. Judge Edmonds, ibid. 181, held :-"There was only one case in which a fugitive slave could be held by his master in his personal custody in this State. That was under the law assertion of the master be erroneous also; and if so, how is his act of force to be remedied? The colored person is taken, and forcibly conveyed beyond the juris diction of the State. This force not being authorized by the act of Congress nor by the Constitution, may be prohibited by the State. As the act covers the whole power in the Constitution, and carries out, by special enactments, its provisions, we are, in my judgment, [673] bound by the act. We can no more, under such circumstances, administer a remedy under the Constitution, in disregard of the act, than we can exercise a commercial or other power in disregard of an act of Congress on the same subject.

"This view respects the rights of the master and the rights of the State. It neither jeopards nor retards the reclamation of the slave. It removes all State action prejudicial to the rights of the master; and recognizes in the State a power to guard and protect its own jurisdiction, and the peace of its citizens,

"It appears, in the case under consideration, that the State magistrate before whom the fugitive was brought refused to act. In my judgment he was bound to perform the duty required of him by a law paramount to any act, on the same subject, in his own State. But this refusal does not justify the subsequent action of the claimant. He should have taken the fugitive before a judge of the United States, two of whom resided within the State.

"It may be doubted whether the first section of the act of Pennsylvania under which the defendant was indicted, by a fair construction applies to the case under consideration. The decision of the Supreme Court of that State was pro forma, and, of course, without examination. Indeed, I suppose, the case has been made up merely to bring the question before this Court. My opinion, therefore, does not rest so much upon the particular law of Pennsylvania, as upon the inherent and sovereign power of a State to protect its jurisdiction and the peace of its citizens, in any and every mode which its discretion shall dictate, which shall not conflict with a defined power of the federal government."

In Prigg's case, the jury in the Pennsylvania court, on the trial of the indictment, had found that the woman who had been carried away was a fugitive slave. 16 Peters, 556.

of Congress, to take him without delay before the proper authorities in order to obtain the certificate necessary to justify his removal out of the State. This had not been done in this case."

§ 809. In Norris v. Newton (May, 1850), 5 McLean's C. C. R. 92, the doctrine of Prigg's case was applied, on the authority of that case, by Judge McLean. His language, in charging the jury, p. 97, is:-"Under the act of 1793, the master or his agent had a right to seize his absconding slave wherever he might be found, not to take him out of the State, but to bring him. before some judicial officer of the State to make proof of his right to the services of the fugitive. But, by the decision in the case of Prigg, the master has a right to seize his slave in any State where he may be found, if he can do so without a breach of the peace, and, without any exhibition of claim or authority, take him back to the State from which he absconded. Believing that this remedy was not necessary to the rights of the master, and, if practically enforced, would produce great excitement in the free States, I dissented from the Opinion of the Court, and stated my objections with whatever force I was able. But I am as fully bound by that decision as if I had assented to it."

2

1 Another case in the series affirming the right to seize and remove the slave is Kauffman v. Oliver (1849). See the language of Judge Coulter in the citation from this case, ante, p. 494. In Commonwealth v. Taylor (in the Sessions of Dauphin Co., Pa., 1851), III. Monthly Law Reporter, 576, the right of the owner to seize the slave without warrant was vindicated (see ante, p. 73, note). But it is not clear, from the judge's charge, whether he intended to vindicate the seizure for the purpose of removing the fugitive, without a certificate under the Act of Congress, or only as made for the purpose of bringing the claim before a judge or commissioner. The judge speaks of the right of seizure as a right given by the Act of Congress.

The captions of this case in the report are:-" Under the Constitution of the United States, the master of fugitives from labor may arrest thein wherever they shall be found, if he can do so without a breach of the peace, and take them back to the State from whence they fled. A State judge, on proper affidavit being made, may issue a writ of habeas corpus, and inquire into the cause of the detention. The affidavit of a colored person is sufficient for this purpose. Every person within the jurisdiction of a State owes to it an allegiance. He is amenable to the laws of the State, and the State is bound to protect him in the exercise of his legal rights. When it appears by the return to the habeas corpus that the fugitives are in the legal custody of the master, and the facts of the return are not denied, there is an end to the jurisdiction of the State judge. His jurisdiction is special and limited. When it appears the fugitives are held under the authority of the Union, it is paramount to that of the State. And so, when an individual is held under the authority of a State, the federal judiciary have no power to reVOL. II.--36

§ 810. In Booth's case, 1 Wisc. 1, if the detention of the slave could not have been legal under the warrant in that case by reason of some technical defect,' it may have been necessary to inquire whether he could have been kept in custody under the provision alone. Judge Smith, in his Opinion of June 7th, makes the following observations, which bear on this question, in 1 Wisc., p. 15:2

lease the person so held. If the return to the habeas corpus be denied, the master must prove that his custody of the slaves is legal. If he fail to do this, or make an insufficient return, the State judge may release the fugitives. But the master may subsequently arrest them and prove them to be his slaves. The master, though he may arrest without any exhibition of claim or judicial sanction, when required, must show a right to the services of the fugitives."

1 Ante, p. 502.

2 In the Opinion delivered on the hearing of the certiorari, Judge Smith argues against the reasoning in Prigg's case, by which the doctrine of seizure is supposed to be sustained, as follows, from 3 Wisc. 116:

But we will take the case as the majority have presented it, comparing occa sionally the opinions delivered, consentient as well as dissentient, with each other, and with those rules of interpretation of the Constitution, which the Supreme Court of the United States has itself long since established, and which have been adopted also, with few exceptions, by the courts of the respective States.

The first observation which forces itself upon the mind, upon an examination of the case, is, that all the rules of construction theretofore established for the guide of the federal as well as State courts, in the interpretation of the Constitution of the United States, are utterly repudiated.

"Among the rules of interpretation considered to be firmly established, which particularly concern the matter in hand, is the one laid down in 1 Story's Commentaries, 409-410. It is as follows:- A rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous. Yet the whole tenor and force of the argument in behalf of the assumption of federal authority for the execution of the compact in question, rests solely upon the inconvenience of State action, or the mischief resulting from the omission or refusal of the States to act. What is the fair scope of the terms' [117] of the clause? It is submitted that it is clear, definite, incapable of enlargement or restriction. The States have agreed that escaping slaves shall not be discharged from service or labor by the operation of their own laws, but that when claimed within their territory, and the claim established, shall be delivered up. This is the extent of the obligation. Is it not to enlarge the scope of its terms, to hold, that the States have relinquished all power to provide the means and mode of performing this duty ?—that they have thrown open their territories to incursion by fugitive hunters, and relinquish all power to protect their own people from false charges of escape, or of the obligation of service?-or from assault and outrage during the search? To hold that the mere covenant not to discharge, and to deliver up on claim, is a grant of power to the federal government to invade their territory and seize when not one word of grant is found among the terms used, or necessarily implied? And do not the passages heretofore quoted conclusively show, that the power of Congress is deduced solely from the supposition that the clause in ques tion would not probably be conveniently and satisfactorily executed without such assumption?

Again, the fair scope of the terms' of this clause of the Constitution has been enlarged in violation of this rule, in assuming that it conferred upon the slave owner a constitutional right to have his slave restored to him in the State from which he fled. But it is obvious from reading the clause, that it contains no