Page:An essay upon the constitutional rights as to slave property.djvu/17

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imposes a restriction and a duty upon other states and individuals in relation to such rights, but vests no power in the federal government, or any department or officer thereof, except the judicial power of declaring and enforcing the rights secured by the constitution. The act of February 1793, conferring ministerial powers upon the state magistrates, and regulating the exercise of the powers of the state executive, is certainly not a law to carry into effect the judicial power of the United States; which judicial power cannot be vested in state officers. If the provisions of the constitution as to fugitive slaves and fugitives from justice, could not be carried into effect without the actual legislation of Congress on the subject, perhaps a power of federal legislation might be implied from the constitution itself; but no such power can be inferred, from the mere fact that it may be more convenient that Congress should exercise the power, than that it should be exercised by the state legislatures. In these cases of fugitive slaves and fugitives from justice, it is not certain that any legislation whatever is necessary, or was contemplated by the constitution. The provision as to persons escaping from servitude in one state into another, appears by their journal to have been adopted by a unanimous vote of the convention. At that time, the existence of involuntary servitude, or the relation of master and servant, was known to and recognized by the laws of every state in the Union, except Massachusetts; and the legal right of recaption by the master existed in all, as a part of the customary or common law of the whole confederacy. On the other hand, the common law writ de homine replegiando, for the purpose of trying the right of the master to the services of the slave, was well known to the laws of the several states; and was in constant use for that purpose, except so far as it had been superseded by the more summary proceeding by habeas corpus, or by local legislation. The object of the framers of the constitution, therefore, was not to provide a new mode by which the master might be enabled to recover the services of his fugitive slave, but merely to restrain the exercise of a power, which the state legislatures respectively would otherwise have possessed, to deprive the master of such pre-existing right of recaption.

'"If the person whose services are claimed, is in fact a fugitive from servitude under the laws of another state, the constitutional provision is imperative, that he shall be delivered up to his master upon claim made; and any state officer or private citizen, who owes allegiance to the United States, and has taken the usual oath to support the constitution thereof, cannot, without incurring the moral guilt of perjury, do any act to deprive the master of his right of recaption, where there is no real doubt that the person whose services are claimed is in fact the slave of the claimant. However much, therefore, we may deplore the existence of slavery in any part of the Union, as a national as well as a local evil, yet, as the right of the master to reclaim his fugitive slave is secured to him by the federal constitution, no good citizen, whose liberty and property is protected by that constitution, will interfere to prevent this provision from being carried into full effect, according to its spirit and effect; and even where the forms of law are resorted to for the purpose of evading the constitutional provision, or to delay the remedy of the master in obtaining a return of his fugitive slave, it is undoubtedly the right, and may become the duty, of the court in which any proceedings for that purpose are instituted, to set them aside, if they are not commenced and carried on in good faith, and upon probable grounds for believing that the claim of the master to the service of the supposed slave is invalid."

The chancellor then examined the pleadings in the cause, by which the fact appeared to be admitted on the record, that the plaintiff owed service or labor to the defendant in another state, and had escaped from such servitude. Without reference to the validity of the act of Congress, or of any state legislation on the subject, he considered the fact thus admitted sufficient, under the constitution, to entitle the defendant to judgment for a return of the slave. And he therefore arrived at the conclusion, that the judgment of the supreme court should be affirmed with costs; and that the damages which the defendant in error had sustained, by the delay and vexation caused by the writ of error, should be awarded to her.

The course of reasoning of Senator Bishop, was similar to that used by Judge Nelson in the supreme court.

Upon the question being put—shall this judgment be reversed?—the members of the court unanimously voted in the negative. Whereupon, the judgment of the supreme court was affirmed.

In a more recent case, a writ de homine replegiando having been sued out, a motion was made in August 1837, by the claimant of the alleged slave, to quash the writ on the strength of the previous decision of the supreme court. The court, Nelson, Chief Justice, presiding, directed the mo lion to be suspended until the next special term. In the meantime, the attorney for the plaintiff had leave to prepare and serve his declaration, and the attorney for the defendant had leave to plead the proceedings had before the recorder under the act of Congress; to which the plaintiff might demur, with a view to enter the formal judgment of the supreme court, so that the cause might be removed to the court of dernier resort in the state, for a final decision upon the constitutional question.

Thus the matter stands in New York, according to the latest reports of decisions of that state. We