vented from regaining their slaves; and that the provision in the constitution was designed to secure them against any such state laws.

It is proposed now to conclude the review of judicial decisions, under the constitution and laws, as to fugitives from labor and fugitive criminals; and then to consider the duty of executive officers in regard to the latter.

Conclusion of the review of judicial decisions as to fugitives from labor.

After the decision of the supreme court of the state of New York, in the case of Jack v. Martin, the cause was removed in behalf of the slave into the court of errors, a court constituted of the president of the senate, chancellor of the state, judges of the supreme court, and all the senators. The hearing before the court of errors was in December, 1835.

Only two opinions were delivered at large. They were by the chancellor and senator Bishop.

The chancellor, after remarking that the decision of the court below was put upon the ground that congress not only had the power to legislate upon the subject, but that their legislation must necessarily be conclusive in relation to this matter, proceeded as follows:

"I am one of those who have been in the habit of believing that the state legislatures had general powers to pass laws on all subjects, except those in which they were restricted by the constitution of the United States or their own local constitution, and that congress had no power to legislate on any subject, except so far as the power was delegated to it by the constitution of the United States. I have looked in vain among the powers delegated to congress by the constitution, for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be

embraced in the general grant of incidental powers, contained in the last clause of the constitution, relative to the powers of congress. Const. art. I, § 8, sub. 17. The law of the United States respecting fugitives from justice and fugitive slaves, is not a law to carry into effect any of the powers expressly granted to congress, or any other power vested by the constitution in the government of the United States or any department or officer thereof.' It appears to be a law to regulate the exercise of the rights secured to the individual states, or the inhabitants thereof, by the second section of the fourth article of the constitution; which section, like the ninth section of the fourth article, merely 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 preëxisting 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, C. J., presiding, directed the motion to be suspended until the next special term. In the meantime, the

1 14 Wend. 507-539.

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 last 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 have but little

to add to what judge Nelson has said upon the subject.

It is plain that, according to art. 4, § 2, clause 3, of the constitution, a person held as a slave in one state under the laws thereof, who escapes into another, is not to be discharged from slavery by means of any law or regulation existing in the state to which he escapes.

The owner's property being thus secured and protected by the constitution, he has the same right to take possession of his slave, when he finds him in the state to which he escapes, that he would have in the state from which he escaped. As, upon an escape from one county into another of the same state, the owner may take possession of his slave in the latter county without any warrant or process whatever, so, upon an escape from one state into another of this union, the owner may, in like manner, under the constitution which governs the union, take possession of his slave without any warrant or process.

If, in the state to which the slave escapes, there be any state law or state regulation to prevent the owner of the slave from taking possession of his slave and carrying him away, such state law or state regulation violates the provision in the constitution of the United States; and this constitution being the supreme law of the land, the state

1 Dixon v. Allender, 18 Wend. 678.