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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 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 law or state regulation which violates the same is null and void. But there may be a question, whether the person who is seized, was in truth and in fact held to service in another state, under the laws thereof. Is this question to be tried by a jury in the state in which the seizure takes place? Certainly not. The counsel who argued the case of Jack v. Martin before the court of errors, on behalf of the owner, very correctly observed that “the constitution evidently contemplates a summary investigation. The fugitive is to be delivered up on claim.” These words import a summary proceeding.” “If,” said he, “it intended to declare that a fugitive servant should be delivered up after trial and judgment, attended with all the forms of the common law, the words ‘on claim' would be idle. He could not be said to be delivered up on claim, whose surrender was the result of a final and conclusive judgment.” The counsel said most truly that “the citizens of the slaveholding states would never have consented to subject themselves to the necessity of establishing their claims to their fugitive slaves, before juries composed of the inhabitants of non-slaveholding states. Indeed the difficulty of establishing the identity, by proof that would satisfy the strict common law rules of evidence on jury trials, and the great delay and expense of successive appeals, would render even the successful prosecution of a claim to service, in the state in which the arrest is made, in the ordinary mode by trial and judgment, vexatious and unprofitable to the claimant.” All that the claimant has to do, is to show, in a summary way, that the person whom he claims was his slave in another state. Ought this enquiry to be gone into before any state tribunal, acting as such It would seem not. It was said by governor Randolph, in the Virginia convention, that “every government necessarily involves a judiciary as a constituent part. If then a federal judiciary is necessary, what are the characters of its powers ? That it shall be auxiliary to the federal government, support and maintain harmony between the United States and foreign powers and between different states, and prevent a failure of justice in cases to which particular state courts are incompetent. If this judiciary be reviewed as relative to these purposes, I think it will be found that nothing is granted which does not belong to a federal judiciary. Self defence is its first object. Has not the constitution said that the states shall not use such and such powers, and given exclusive powers to congress If the state judiciaries could make decisions conformable to the laws of their states, in derogation to the general government, I humbly apprehend that the federal government would soon be encroached upon. If a particular state should be at liberty, through its judiciary, to prevent or impede the operation of the general government, the latter must soon be undermined. It is then necessary that its jurisdiction should extend to all cases, in law and equity, arising under this constitution and the laws of the United States.” " In the convention of North Carolina, Mr. Davis said, “it appears to me that the judiciary ought to be competent to the decision of any question arising out of the constitution itself. On a review of the principles of all free governments, it seems to me also necessary that the judicial power should be coèxtensive with the legislative. It is necessary in all governments, but particularly in a federal government, that its judiciary should be competent to the decision of all questions arising out of the constitution.” Again he said, “every member who has read the constitution with attention, must observe that there are certain fundamental principles in it, both of a positive and negative nature, which, being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every member will agree that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to be disregarded or violated. Without a judiciary, the injunctions of the constitution may be disobeyed and the positive regulations neglected or contravened.”"
14 Wend. 507–539.
If there be occasion for the exercise of judicial power, in any case arising under the provision of the constitution in regard to fugitives from labor, such judicial power should be exercised not by a state court, but, under art. 3, § 2, should be exercised by a court of the United States; and congress should, under art. 1, § 17, make all laws necessary and proper for carrying into execution the power vested in the judicial department.
4. Decisions as to Fugitive Criminals.
Under the constitution of the United States, a state within the union has no more right to afford an asylum to a person charged with a crime in another state than to those who have fled from service or labor. “The states,” says Mr. Rawle, “are considered as a common family whose harmony would be endangered, if they were to protect and detain such fugitives when demanded in one case by the executive authority of the state, or pursued in the other by the persons claiming an interest in their service.””
The question whether theft is a felony of such a nature as to make it proper that the offender should be delivered up, has been discussed in the American courts, when the delivery was to be to a foreign state; and on that subject different opinions have been expressed; but the judges have
* Elliott's Debates, vol. 3. p. 141. * Rawle on the Constitution, p. 99.