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 jurisdiction 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 pence 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."

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§ 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."

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 them 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 :'

lease the person so held. If the return to the habeas corpus be denied, the mas ter 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 mas ter, though he may arrest without any exhibition of claim or judicial sanction, when required, must show a right to the services of the fugitives."

1Ante, p. 502.

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

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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 Com mentaries, 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 inplied? 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

"Either fortunately or unfortunately, we are left for a construction of this portion of the federal compact, almost exclusively to the meaning to be derived from [16] the words. There was very little debate upon the introduction or adoption of the clause, and but feeble aid is furnished from con

covenant or guaranty to return the fugitive, but only to deliver him up in the State to which he may have fled and in which he may be found; not to return him to the State from which he may have fled. The Supreme [118] Court of the United States say, 'that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held to service or labor.' It is respectfully submitted, that such was not the object of the clause, but far from it. It was not the object of the clause to legalize slavery in every State of the Union. Such is not now the legal effect of the provision. To give it such a construction would be enlarging the construction beyond the fair scope of its terms.'

"The court say, 'The object of this clause was, to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State of the Union into which they might escape from servitude. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing or abolishing the rights of the owners of slaves.'

"By what rule of interpretation such a construction can be placed upon the words contained in this clause, it is difficult to conceive. The full recognition of the right of property in the slave in every State in the Union! The complete right and title of ownership in their slaves as property! It is submitted, that the recognition of the rights of the master enjoined by the clause is (1): so far as not to discharge the fugitive from the labor or service which may be due, claimed, and established; and (2) to deliver him up on claim of the person to whom such labor or service is due, when claimed by him, and such claim is legally [119] established. That is all. Such is the bond; no more, no less. The seal may bind, but it cannot enlarge the scope of the bond. The full recognition of the rights of the owner in the slave, as property,' and not to obstruct those rights, would greatly enlarge the scope of this provision. The essential rights of the owner of property are, to sell or exchange it; also to use, enjoy, and control it absolutely, without hindrance or molestation. By this construction of the court, therefore, the owner of the fugitive may not only seize him in any State, but he may sell him, at auction or otherwise; he may hire him out to service for any term; he may command his immediate, as well as his prospective services, and lash him into obedience, and none of these rights may be obstructed or intermeddled' with. Such a construction, if acquiesced in, would open up a market in every free State for fugitive slaves. Placards would be lawfully posted in every corner of the highway, and the service of the slave proposed as compensation or reward for his capture; and such a construction would arm every slave-hunter with a lash, to scourge the fugitive into immediate service, or back to bondage; and no State law or authority could interpose to prevent such outrages, for all such would operate a discharge pro tanto.'

"It is submitted that this is going a little beyond the 'fair scope' of the language of the Constitution. Its fair scope and true intent do not require of the free States any recognition of the right of the owner of the fugitive in him as property. That was never required of them, and would have been scouted had it been proposed. The clause simply requires that the States into which the fugitive shall escape shall [120] not discharge him from service, but deliver him up. He is recognized simpy as a person owing service, not as a chattel, or as any species of property to be sold or bartered. In Virginia he may be, indeed, a chattel; but in Wisconsin he is a MAN. The laws of Virginia make him a chattel there; but

temporaneous interpretation, for, until a comparatively recent period, it has not become a subject of any very considerable discussion.

"Without stopping here to inquire, whether the clause in question confers upon the general government any power of

the Constitution of the United States and the laws of Wisconsin regard him as a person here. Under the Constitution, the fugitive leaves the attribute of the chattel behind him in the State from which he flees, and goes forth as a PERSON. The law which makes him property in Virginia, does not go with him beyond the limits of that State. On his escape from such limits he ceases to be property, but is a person liable to be reclaimed. The person may escape, but the property cannot. The States are no more bound to recognize the fugitive slave as property, than a fugitive apprentice as property. The relation of master and servant is recognized so far, and so far only, as the obligation of service is implied from such relation. Even such obligation is not recognized as full, complete, present, and operative, but as attaching to that relation in another State. So much of the law of the State from which he fled, as required of him service to his master there, is to be regarded, and from that obligation of service, imposed by that law, the State may not discharge him. The law of Virginia which requires of the slave service to his master, is recognized as the law there, not here. We may not discharge a fugitive from the service which, by law, he owes in Virginia. But by that law he owes no service here. The master may capture him in Wisconsin. We must deliver him up to his master, on the establishment of his claim; but his master has no right to [121] command his service in Wisconsin. Ile must not beat him. He may take him back to Virginia, but he cannot command his serv ice here. When he gets to Virginia he will owe service by the law of that State, but not till then. By the law of that State he owes the service, and by that law only. That is the law of Virginia, but not the law of Wisconsin. If the master demand service here of his fugitive, and beat him for disobedience, he is punishable by our laws. Nor could the master, having captured the fugitive in this State, sell or hire him to another. He has just the control over him requisite to his extradition, and no more. He may relinquish that right, and so emancipate him; for such relinquishment would operate emancipation; but he cannot sell and transfer his right of extradition to another. He may employ, perhaps, an agent for that purpose; though, strictly construed, the clause might be held to require the claim to be made by the owner in person, to whom the service is due, and to exclude the intervention of an agent.

"Such, it seems to me, is the plain meaning of the clause in question, I cannot conceive of any other. And yet, in the same case (Pring vs. Penn.) the court say, 'the clause contains a positive and unqualified right of the owner in the slave as property, unaffected by any State law or regulation whatsoever, because [122] there is no qualification or restriction of it, to be found therein, and we have no right to insert any which is not expressed, and cannot be fairly implied. Es pecially are we estopped from so doing when the clause puts the right to service or labor upon the same ground and to the same extent in every other State, as in the State from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also.'

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Now one incident to that right in the State from which the slave has fled, is, that the owner may transfer it to another, and therefore no State law or regulation can prevent the exercise of that right in a free State and to the same extent to which the owner is entitled in his own State. The slave code of every State in the Union is thus engrafted upon the laws of every free State, and the latter are prohibited from all legislation on the subject, while the power of legislation, to enlarge or modify this right is in the former. To the same extent' as the right of the master in the slave is given by the local law of Arkansas, is he entitled to enjoy and exercise it in Wisconsin or Massachusetts! This is insisted upon over