this work. It has been shown that the claim and delivery of such fugitives was altogether a matter of private law, decided by judicial tribunals, whether it was determined by unwritten or common law, or by intercolonial compact.' The Articles of Confederation do not contain any clause relating to fugitives from labor. It was determined in each State, before the adoption of the Constitution, by common-law principles only, and was matter for judicial decision only, as it had been during the colonial period. There is probably no instance in which the claim for such fugitive from labor was made upon the Executive of any State or upon the State Government as a claim arising under public international law. $799. If, then, the pre-existing law may be any criterion of the force and effect of either of these clauses, it indicates that it should receive the fourth of the constructions already indicated, and be understood to act directly on private persons in any one State, irrespectively of any juridical action on the part of the State, and to create a legal relation in which a Governor of a State demandant, or a private claimant, is the subject of the right, and a private person, the fugitive from justice or from labor, is the subject of the obligation. Although these two provisions may have many points of resemblance, they are entirely independent of each other, and are not necessarily to be construed alike. If there is anything in the terms of the clause relating to fugitives from justice, or in the former customary law on the same subject-matter, to prevent its being thus understood, it still may be that the clause respecting fugitives from labor should receive the construction above indicated. § 800. If, then, either of these two provisions is to receive the fourth construction, under which it creates legal rights and obligations irrespectively of national or State legislation, the See particularly ante, § 322. The proviso in the 6th Art. of the Ordinance for the government of the N. W. Territory (ante, p. 114), declared by the Congress of the Confederation, July 13, 1787, while the convention was in session, may be supposed to have been the model for this provision. There was no occasion for determining the construction of that proviso. The words "may be lawfully reclaimed," &c., indicate, it seems to me, that it should operate as private law, and affect the owner and fugitive immediately; even though the articles are declared to be a compact. Mr. Wolcott, arguing in 9 Ohio, 124, infers the contrary. question occurs, What is the right and obligation which may exist and be maintained by either provision, under this construction? § 801. The right of a State in respect to a fugitive from justice has always been claimed as a right to a delivery of the fugitive by some public person having authority within the forum, and on some formal demand by the Executive of the State from which he fled. It has never been supposed that, by the provision, the demandant State had, in the State wherein the fugitive is found, the same power over him which it had when he was within its territory. It has never been claimed that the Executive authorized to make the demand might, in virtue of that power, seize the alleged fugitive from justice and remove him to the State in which he is charged with having committed the crime. Congress has no power to abridge any right given by the provision. The statute of Congress, in requiring the delivery of such fugitive by "the executive authority" of the State into which he may have fled when the demand made shall be accompanied by certain documentary evidence, is a direct authority' of the highest character, that by such a delivery on such a demand the right guaranteed and the obligation created by the provision are maintained and enforced. § 802. By parity of reasoning, the Acts of Congress which provide for the delivery of fugitives from labor, by certain public officers, to the person who may have made public claim in a prescribed manner, would seem to be high authority for believing that by such delivery on such claim the right created by the provision in the person to whom the fugitive may owe service or labor, and the obligations which are correlative to it, are maintained and enforced." But by the highest judicial authority it has been held that the fugitive slave may be seized, by the owner or his agent, and removed from the State in which he may be found, without the action, judicial or ministerial, of any person having within the forum authority to deliver him up on claim. This 1 See Judge McLean's argument, 16 Peters, 670, post, p. 558, note. 2 Sims' case, 7 Cushing, 300. doctrine is so important, not only in its immediate consequences, but also in its bearing on other controverted points, that a full review of the cases must here be given. § 803. A case must first be noticed which, though it is, in fact, only authority on the question whether a claimant may seize the fugitive without warrant when intending to go before some officer named in the Act of 1793 and prosecute his claim, has undoubtedly been often taken as authority for the right to seize and remove by force of the constitutional provision alone. This case is more particularly to be noticed in this series of cases, as in it the doctrine seems to have originated that in the provision persons held to service or labor in one State, escaping into another, are recognized as the property of those to whom their service or labor is due; and, thence, the derivative doctrine, that the Constitution recognizes slaves as property in any part of the United States. In this case, Commonw. e. Griffith (1823), 2 Pick. 11,' the action being for the seizure of a person as a fugitive, without warrant, Parker, Ch. J., said, ib. p. 18:-"This brings the case to a single point-whether the statute of the United States giving power to seize a slave without warrant is constitutional. It is difficult, in a case like this, for persons who are not inhabitants of slaveholding States to prevent prejudice from having too strong an effect on their minds. We must reflect, however, that the Constitution was made with some States in which it would not occur to the mind to inquire whether slaves were property. It was a very serious question, when they came to make the Constitution, what should be done with their slaves. They might have kept aloof from the Constitution. That instrument was a compromise. It was a compact by which all are bound. We are to consider, then, what was the intention of the Constitution. The words of it were used out of delicacy, so as not to offend some in the convention whose feelings were abhorrent to slavery; but we there entered into an agreement that slaves should be considered as property. Slavery would still have continued if no Constitution had been made. See the circumstances of the case, ante, p. 440. "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. It is said that the Act which Congress has passed on this subject is contrary to the amendment of the Constitution, securing the people in their persons and property against all seizures, &c., without a complaint upon oath. But all the parts of the instrument are to be taken together. It is very obvious that slaves are not parties to the Constitution, and the amendment has relation to the parties. "But it is said that when a seizure is made, it should be made conformably to our laws. This does not follow from the Constitution, and the Act of Congress says that the person to whom the service is due may seize, &c. Whether the statute is a harsh one, is not for us to determine. But it is objected that a person may, in this summary way, seize a freeman. It be may so; but this would be attended with mischievous consequences to the person making the seizure, and a habeas corpus would lie to obtain the release of the person scized. We do not perceive that the statute is unconstitutional, and we think that the defence is well made out." 1 Thacher, J., dissenting, said: "Though I agree to many things said by the Chief Justice, I do not entirely coincide with him. I am not disposed to question the constitutionality of the statute, but I think that the seizures should be made in conformity to the laws of the several States, and not in violation The argument of counsel on the prevailing side may throw some light on the language of the court. (2 Pick. 13.) Mr. Merrick said:"So the clause against unreasonable searches and seizures does not protect a slave, and he may be seized without the intervention of a warrant; and where is the danger in allowing a master to seize his slave in another State? He infringes no right of such State, and such State cannot alter the rights of the master. If he seizes a freeman, he does it at his peril. He cannot plead a mistake in the person. He must prove his property fully. If Congress had made no law on the subject, the master would have a right to take his property, for the State cannot divest him of it. This is, indeed, a great power, greater than we should be willing, in Massachusetts, to allow to any person; Lut slavery is tolerated by the Constitution of the United States, to which we are a party. There is the same violation of principle in permitting it to exist in the southern States, as in permitting the owner of a slave to come here to seize him." Mr. Morton, on the same side, ib. p. 13, said:-" The relation of a slave to his owner may be compared to that between master and apprentice, bail and principal; in which cases no warrant is necessary." of the laws of any one of them. The laws here do not recognize a slave; every person is a freeman, and entitled to the privileges of a freeman, one of which is to be secure against all seizures, &c., without a complaint upon cath. I admit that in the southern States they may seize a slave without a warrant, because it is according to the laws of those States. But it does not follow that the same may be done here. I think that it is the intention of the statute that the seizure of a slave here shall be by process of law here. The complaint should not state that Randolph was a slave-for our law knows no such creature-but that he was a person held to service by the laws of Virginia. I admit that Congress might prescribe a new method of apprehending a fugitive from service which should supersede our law. In the case before the court, the defendant, in my opinion, violated the law of our State." The reporter adds:-"The Chief Justice then remarked that the construction now given by the court to this statute had been adopted ever since the federal Constitution went into operation, by Lowell and Davis, Justices of the District Court of the United States." 804. The first opinion directly sustaining the doctrine that the claimant may seize and remove the alleged fugitive under the provision itself seems to be that of Nelson, Ch. J., in Jack v. Martin, 12 Wend., 14 Wend. ;' and it would seem that even Chancellor Walworth might be taken to have supported the doctrine; for though the Chancellor speaks of the writs of personal replevin and habeas corpus as means of disputing the master's right to the possession of the alleged slave, he would appear to hold that, if the master can remove the slave from the State before any such writ can be served on him, such removal would be lawful; that the State would have no right to regard such an act as an infringement of her sovereignty, or enact any law against such a removal.' § 805. But the leading authority on this point is Prigg's case. It is difficult to see how a judge could agree in the judg ment of the court without supporting the right to seize and 'See counsel in Prigg's case, 16 Peters, 578. |