the plaintiff did "seize and arrest the said fugitive from labor to take him before a magistrate of the said city in order to prove before him," &c. The constitutionality of the Act of Congress seems to have been admitted, and there is nothing to indicate any judicial construction of the provision. The question whether the provision had given the owner the right to seize the slave and remove him from the State without first making his claim before some public authority, does not appear to have been raised. The judge of the U. S. District Court had charged in favor of the plaintiff's right to recover, and Judge Washington sustained his ruling; but still the decision is not opposed to the assertion that if the plaintiff had proposed to remove the slave from the jurisdiction of the State without making such claim, the defendant would have been justified in obstructing him.

§ 741. In Commonwealth v. Griffith (1823), 2 Pick. 11, the action was for the seizure of a fugitive slave without a warrant. "The defendant, accompanied by a deputy sheriff, but without any warrant or other legal process (though it appeared that application had been made by him to the District Judge of the United States, who had decided that a warrant or other process was not authorized by the Act of Congress, and was not necessary), seized Randolph [the slave] and kept him in confinement an hour or more, intending to have an examination before a magistrate pursuant to the act," &c., the act of 1793. The majority of the Massachusetts Supreme Court, regarding the seizure as made for the purpose of complying with the Act of 1793, held that Act to be constitutional and the seizure proper. Parker, Ch. J., said :-"The Constitution does not prescribe the mode of reclaiming a slave, but leaves it to be determined by Congress. It is very clear that it was not intended that application should be made to the executive authority of the State." The opinion of Judge Thatcher, dissenting, is only against a seizure without warrant, as not authorized either by the provision or by the law of Congress.' But since no opinion was given whether the owner's remedy depended entirely on some statute, or might exist, independently,

'See this question examined post, Ch. XXVII.

under the Constitution, there is nothing to indicate the court's or the dissenting judge's construction of the provision, or their theory of the legislative power of Congress.

§ 742. The case, Johnson v. Tompkins (1833), 1 Baldwin's C. C. R. 571, is principally to be noted as presenting an instance in which the local law of a free State (i. e. a State in which domiciled inhabitants could not be held in slavery) allowed the owner from another State to exercise the right of recaption, or seizure and removal without process. In that connection it will properly be considered in another chapter. The case is now referred to so far as it may maintain the doctrine that, independently of statute, this provision of the Constitution gives the owner the right to seize and remove the fugitive from the State in which he may be found, and in this may support the third or the fourth construction.

A slave belonging to the plaintiff, a resident of New Jersey, having escaped into Pennsylvania, was seized near the river separating the two States, by the plaintiff, and others, October, 1822, without a warrant, and, apparently, with the design of immediately removing him to New Jersey, without applying to any magistrate in Pennsylvania for any certificate, according to the Act of Congress, or any other delivering-up by public authority under the constitutional provision. While thus in possession of the slave, the plaintiff and his company were compelled, by the defendants and others, to go with them before a magistrate to answer the charge of kidnapping under the State law of 1820. On this charge the plaintiff and others were held to bail, tried in the county court, and acquitted. The negro, meanwhile, had been detained by the examining magistrate before whom the plaintiff and his associates had been brought on the charge of kidnapping, and on the plaintiff's acquittal was delivered up to him. The action in the U. S. Circuit Court was for trespass and false imprisonment. There is nothing in the "outline of the circumstances" given in the report, p. 572, to indicate an intention on the part of the owner (previously to his being detained by the defendants) to bring the alleged slave before a magistrate for the purpose of proving

his claim and obtaining authority to remove him.' Neither did the Circuit Judge, Baldwin, hold that the fact that the plaintiff had been acquitted by the county court, on the charge of kidnapping, was proof, as against the defendants in this action, of the plaintiff's having seized the slave with the intention of carrying him before a magistrate, according to the law of Congress of 1793. Judge Baldwin charged, p. 582: "The record of their acquittal is conclusive evidence of their innocence of the offence charged in the indictment preferred against them at Norristown, either jointly or severally; you are bound to consider them each and every one as not guilty of any of the matters charged as a felony or offence under the Act of Assembly of March, 1820, or the common law." But besides adducing this as proof that the plaintiff had not done anything contrary to the local law, Judge Baldwin held that it was not necessary that the plaintiff should have made application to some public officer, in order to authorize his removing the slave out of the State. "Independently of this acquittal, if Jack was the slave of the plaintiff, neither he nor the others of his party could be guilty of kidnapping." On pages 582-590, Judge Baldwin sustains this view by showing that by the law of Pennsylvania, as it stood in 1822 (i. e., the local municipal law of the State), and independently of any effect of this provision of the Constitu

It does not appear from the report that the plaintiff's counsel in this action claimed that he had a right to remove his slave without a certificate under the Act of Congress. Counsel for the plaintiff in this case are reported, p. 575, to have argued:"Jack is admitted to have been the slave of the plaintiff, who had, by the Constitution of the United States and the Act of February, 1793, a perfect right to take his slave within this State at any time he pleased, to use any force necessary for the purpose, to detain him a reasonable time before taking him to any magistrate, and to select any one before whom he would bring him." Counsel for the defendant argued::-"As the plaintiff claims his rights by law, he must obey it. When he arrests him [the slave] he is bound to take him before a magistrate, in order to procure a warrant for his removal, pursuant to the Act of Congress. No force can be used but in taking the slave to the magistrate or removing him out of the State after a warrant is obtained; and if the master does not follow the Act of Congress, he becomes answerable to the laws of the State punishing kidnapping, which, by the Act of 1820, consists in taking any colored person out of the State by force, unless done according to the provisions of that law. * The plaintiff brought himself within the penal provisions of the Act of 1820, if he did not, immediately on the arrest of Jack, prove his property in him, and procure a warrant from a judge or magistrate; the offence is a felony, and he became liable to an arrest by any person who saw him in the act of removing Jack from the State without warrant."

tion of the United States, the owners of fugitive slaves might enter the State, seize them and remove them from its limits without applying to any civil authority. This part of the charge will be again noticed in the next chapter, as it has been sometimes cited among the authorities for the doctrine that the claimant may, by virtue of this provision in the Constitution, seize and remove the fugitive.

But Judge Baldwin also spoke of the rights which owners of slaves had under the Act of Congress, and of the fact that that Act had been recognized as constitutional by the Supreme Court of Pennsylvania. On page 594, he said:-"In addition to these rights, Mr. Johnson had one other important one to which we invite your special attention, and a comparison of the right given and the duty enjoined by the Constitution of the United States with the eleventh section of the Abolition Act of 1780." After reciting the constitutional provision, the judge said: "Pursuant to this provision of the Constitution, the act of Congress of the 12th of February, 1793, was passed, not to restrain the rights of the master, but to give him the aid of a law to enforce them. This law has been read to you, together with the opinion of our respected predecessors in the case of Hill v. Low, to which we give our entire assent, so far as it affirms the unqualified right of the master to seize, secure, and remove his fugitive slave." The case which Judge Baldwin thus refers to has been hereinbefore noticed. According to the report, Judge Washington did not affirm "the unqualified right of the master to seize and remove his fugitive slave." The question of the existence of such a right was not made, and the opinion, if it had been pronounced, would have been extra-judicial.'

Next, in Judge Baldwin's Opinion, follows, with marks of quotation, as if copied from Hill v. Low, a summary of the act of 1793, which, however, is not to be found in the report of the case in 4 Wash., and also, with quotation marks, the following sentences, which likewise are not to be found in that

1 This mis-citation by Judge Baldwin deserves especial notice as an impor tant link in the historical development of the doctrine that this provision gives the claimant a right to seize and remove the fugitive, and the connected doctrine that, in this provision, slaves are recognized as chattels, and not persons.

report:-"By this it clearly appears that the claimant, his agent or attorney, has the authority of this law to seize and arrest, without warrant or legal process, the fugitive he claims, and that without being accompanied by any civil officer, though it would be prudent to have such officer keep the peace. Whilst thus seized and arrested, the fugitive is as much in the custody of the claimant, his agent or attorney, as he would be in that of a sheriff or other officer of justice having legal process to seize and arrest, who may use any place proper in his opinion for temporary and safe custody."" The quotation marks in these instances must have been the error of the press, and the passages thus marked original with Judge Baldwin. Judge Baldwin then said :-"Do you perceive in this anything discordant with the feelings, the spirit, the policy, or the legislation of Pennsylvania as manifested in the abolition act, or the one passed to amend and explain it? Do these constitutional and legal provisions give any right to the plaintiff, or enjoin any duty on others, which are not the fundamental principles of her own laws, as acted on and enforced in her own courts, as of paramount and supreme authority? If you have any doubt, here is the opinion of one of the most humane and benevolent judges who ever presided in any court, the late Chief Justice Tilghman, in delivering the opinion of the Supreme Court of this State." Judge Baldwin then cited from Wright v. Deacon, 5 S. & R. 63, Tilghman's remarks supporting the constitutionality of the law of 1793. But it will be remembered that in that case the fugitive was in custody, under a certificate given by a State judge, under the act of 1793; it does not appear whether he had been brought before that judge with or without warrant, and it was expressly said by Judge Tilghman that the owner's right to "arrest such fugitive and carry him before" a judge, &c., was derived from the statute. Judge Tilghman said nothing of a right to seize and remove the slave without the action of some civil authority, and such a right was not claimed.

Judge Baldwin infers from these cases that the Supreme Court of Pennsylvania must be held, in Wright v. Deacon, to have interpreted the constitutional provision as meaning, that