Page:An essay upon the constitutional rights as to slave property.djvu/13

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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."

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