Page:An essay upon the constitutional rights as to slave property.djvu/12

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state, so far as they may affect his right of property in the slave.

But if the slave comes from one state into another, in any other way than by the consent of the owner, whether he comes in as a fugitive or runaway, or is brought in by those who have no authority so to do, he cannot be discharged under any law of the latter state, but must be delivered up on claim of the party to whom his service or labor may be due.

It is, however, only the slave escaping into another state that is provided for. Hence it has been adjudged, that birth in Pennsylvania gives freedom to the child of a female slave who escaped before she became pregnant.

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.

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."

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: and the offence is complete, although the claimant should ultimately succeed in arresting or recovering possession of the fugitive.

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.

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.

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