the statute of the United States, giving power to seize a slave without a warrant, is constitutional? It is difficult, in a case like this, for persons who are not inhabitants of slave-holding 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."
"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, so curing the people in their persons and property against 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."
"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 manner seize a freeman. It may be 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 seized.
"We do not perceive that the statute is unconstitutional, and we think that the defence is well made out."[1]
In New York the writ de homine replegiando has been more frequently resorted to than in the other northern states. In 1834, a man who was brought before the recorder of the city of New York, as a fugitive slave, sued out a writ of homine replegiando, upon which an issue was joined and tried in the New York circuit, and a verdict found that the man owed service to the person claiming him; on which verdict, judgment was rendered. The supreme court of New York decided, that the proper course then was for the recorder to grant a certificate allowing the removal of the fugitive.[2]
The constitutionality of a law of New York, which provides for the arrest of fugitive slaves, in a manner different in some respects from the act of Congress; and gives to one, claimed as a slave, the writ of homine replegiando against the person claiming the service—and suspends all proceedings before the judge or magistrate, and the removal of the slave under the certificate, until final judgment shall be given on this writ; was discussed in another case before the supreme court of the state of New York, which was heard in the same year.
Judge Nelson, who delivered the opinion of the supreme court on the question as to the effect of the act of Congress, and of the statute of New York, says—"To ascertain which is entitled to paramount authority, we must go back to the source of power—the provision of the constitution; that being conceded to be supreme, and any law in pursuance thereof controlling. The first clause is merely prohibitory upon the states, and forbids the enactment of any law or the adoption of any regulation, in the case of a fugitive slave, by which he may be discharged from the service of his master; and this prohibition upon the state power thus far, is unqualified and complete, as it necessarily includes a restriction against any measure tending, in the slightest degree, to impair the right to such service. No 'law or regulation' of a state being permitted to discharge it, the claim or title of the owner remains as perfect within the jurisdiction of the state to which the fugitive has fled, after his arrival and during his continuance, as it was in and under the laws of the state from which he escaped. The service there due, and the escape being established, so explicit are the terms of the constitution, no rightful authority can be exercised by the state to vary the relation existing between the parties. To this very qualified extent, slavery may be said still to exist in a state, however effectually it may have been denounced by her constitution and laws. On this point there can be no diversity of opinion as to the intent and meaning of this provision; the doubt arises upon the construction to be given to the next clause: 'but shall be delivered up on claim of the party to whom such service or labor may be due.' The counsel for the plaintiff in error contends, the mode of making the claim and of delivering up the fugitive, is a subject exclusively of state regulation with which Congress has no right to interfere; and upon this view, the constitutionality of the law of this state is sought to be sustained."
"It is material to look into the object of this clause of the constitution; the evil to be guarded against, and the nature and character of the rights to be protected and enforced, in order to comprehend its meaning and determine what powers and to what extent may be rightfully claimed under it."
