The constitutional provision respecting fugitives from service or labor, and the act of Congress, of September 18, 1850

Part Third

The Difference Between the Extradition of Persons Charged with Crime, and the Delivery of Persons Held to Service or Labor 85 10S

Conclusion ■ 109 117

Appendix 119 128

Act of Congress of 1793.

An Act respecting Fugitives from Justice, and persons

ESCAPING FROM THE SERVICE OF THEIR MASTERS.

Sec. 1. Beit enacted by the Senate and Howe of Representative of the United States of America in Congress assembled, That whenever the executive authority of liny State in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such State or Territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any State or Territory as aforesaid, charging the person so demanded, with having committed treason, felony or other crime, certified as authentic by the Governor or chief magistrate of the State or Territory from whence the person so charged tied, it shall be the duty of the executive authority of the State or 1 erntory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear ; But if nosuch agent snail appear within six months from the time of the arrest, the prisoner may be discharged. aiui all costs or expenses incurred in the apprehending, securing, and transmitting such Territo tlle btate or rerr't°i"y making such demand, shall be paid by such State or

' Sij.c- r\ A»dbc it further enacted, Tint any agent, appointed as aforesaid, who shall receive me tugitive into his custody, shall be empowered to transport him or her to the State or territory from which he or she shall have fled. And if any person or persons shall by lorce set at liberty, or rescue the fugitive from such agent while transporting, as aforesaid, tne person or persons so offending shall, on conviction, be fined not exceedin" five hundred dollars, and he imprisoned not exceeding one year.

Sec. 3. And beit also enacted, That when a person held to labor in any of the United states, ot 'in either of the Territories on the northwest or soulh of the river Ohio, under ,„h„ V U\e\ef> sna" e:sc;lPe into any olher of the said States or Territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such tugitive from labor, and to take him or her before anv judge of the Circuit or District Courts of the United States, residing or being within tlie State, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof 10 the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of anv such State or Territor>, that the person so seized or arrested, doth, under the laws of the State or Territory IhLTi T V. ,1 017h° ,fleVnve service or labor to the person claiming him or her, it snail be the duty of such judge or magistrate to give a certificate thereof to such claimant, riis agent or attorney, which shall be sufficient warrant for removing the said fugitive from idDor, to the State or Territory from which he or she fled.

„, f,c- f An* be it further enicted, That any person who shall knowingly and willingly opstruct or hinder such claimant, his agent or attorney in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, bis agent or attorney when so arrested pursuant to the authority herein given or declared ; or shall harbor or conceal such person after notice that he or she was a fugitive from labor as aforesaid, shall, tor either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by und for the benefit of such claimant, by action of debt, in c^vf,?^-1"'01'^^1''5' tnefsamei s:lvi,'g moreover to the person claiming such labor or seivice, his right of action for or on account of the said injuries or either of them

JONATHAN TRUMBULL,

Speaker of the House of Representatives.

a „, - „ a p k , -, Xice,fZesidenl °f the Uniled States, and President of the Senate.

Approved, February 12th, 1793.

GEORGE WASHINGTON,

President of Vie United States.

Act of Congress of 1850.

An Act to amend, and supplementary to, the Act entitled " An Act respecting Fugitives from Justice, and persons escaping from the service of their masters," approved February 12, 1793.

Sec. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the persons who have been, or may herealter be, appointed commissioners, in virtue of any act of Congress, by the Circuit Courts of the United States, and who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace, or other magistrate of any of the United States , may exercise in respect to offenders for any crime or offence against the United Slates, by arresting, imprisoning, or bailing the same under and by virtue of the thirty-third section of the act of t lie twenty-fourth oi September seventeen hundred and eighty-nine, entitled " An Act to establish the judicial Courts of the United States," shall be, and are hereby authorized and required to exercise and discharge all the powers and duties conferred by this act.

Sec. 2. And be it further enacted. That the superior Court of each organized territory of the United States shall have the same power to appoint commissions to take acknowledgments of bail and affidavits, and to take depositions ot witnesses in civil causes, which is now possesssed by the Circuit Court of the United States ; and all commissioners who shall hereafter be appointed for such purposes by the superior Court of any organized Territory of the United States, shall possess all the powers and exercise all the duties, conferred by law upon the commissioners appointed by the Circuit Courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act.

Sec. 3. And be it further enacted, That the Circuit Courts of the United States, and the superior Courts of each organized Territory of the United States, shall from time to time enlarge the number of commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act.

Sec. 4. And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States, in their respective Circuits and districts within the several States, and the judges of the superior Courts of the Territories, severally and collectively, in term time and vacation ; and shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.

Sec. 5. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process, when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of such claimant, on the motion of such claimant, by the Circuit or District

Court for ihe district of such marshal ; and after arrest of such fugitive ,by such marshal or his deputy, or whilst at any time in his custody under the provisions of this act, should such fugitive escape, whether with or without the assent of such marshal or his deputy, such marshal shall le liable, on his official bond, to be prosecuted for the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, Territory, or District whence he escaped : and the better to enable the said commissioners, when tiius appointed, to execute their duties faithfully and efficiently, in conformity with the requirements of the constitution of the United States and of this act, they are hereby authorzed and empowered, within their counties respectively, to appoint, in writing under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful perlormance of their respective duties; with authority to such commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon and call to their aid the bystanders, or posse comitatus of the proper county, when necessary to insure a faithful observance of the clause of the constitution referred to, in conformity witli the provisions of this act ; and all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may bo required, as aforesaid, for that pur pose ; and said warrants shall run, and be executed by said officers, anywhere in the State within which they are issued.

Sec. 6. And be it further enacted, That when a person held to service or labor in any Saite or Territory of the United States, lias heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such labor or service may be due, or his, her. or their agent or attorney, duly authorized, by power of at t irney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which tiie same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or ommissioners aforesaid, of the proper Circuit, District, or County, for the apprehension of sueh fugitive from service or labor, or by seizing and arresting such fugitive, where the same can be done without process, and by taking or causing such person to be taken, forthwith before such court, judge, or commissioner, whoso duty it shall bo to hear and determine the case of such claimant, in a summary manner; and upon satisfactory proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and take depositions under the laws of the State or Territory from which such person owing service or labor may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof, also by affidavit, of the identity of the person whose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Territory from which such fugitive may have escaped as aforesaid, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State orTerritory in which such service or labor was due, to the State or Territory in which he or she was arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as maybe necessary under the circumstances of the case, to take an/1 remove such fugitive person back to the State or Territory whence he or she may have escaped as aforesaid.

In no trial or hearing under this act shall the testimony of such alleged fugitive he admitted in evidence; and the certificate in this and the first [fourth] section mentioned, shall he conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.

Sec. 7. And be il/unker enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such fugitive from service or labor, either with or without process as aforesaid ; or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforsaid ; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States ; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered^by action of debt, in any of the District or Territorial Courts aforesaid, within whoso jurisdiction the said offence may have been committed.

Sec. 8. And be it further enacted, That the marshals, their deputies, and the clerks of the said District and Territorial Courts, shall be paid, for their services, the like fees as may be allowed to them for similar services in other cases ; and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, then such fees are to be paid in the whole by such claimant, his agent or attorney; and in all cases wher.e the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, hisorher agent or attorney ; or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid, in either case, by the claimant, his or her agent or attor ney. The person or persons authorised to execute the process to be issued by such commissioner for the arrest and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five dollars each, for each person he or they may arrest and take before any such commissioner as aforesaid, at the instance and request of such claimant,with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them ; such as attending at the examination, keeping the fugitive in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioner; and, in general, for performing such other duties as may be required by such claimant, his or her atorney or agent, or commissioner in the premises, such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice wkhin the proper district or county, as near as may be practicable, and paid by such claimants, their agents or attorneys, whether such suppposed fugitives from service or labor be ordered to be delivered to such claimants by the final determination of such commissioners or not.

Sec. 9. And be it further enacted, That, upon affidavit made by the claimant of such fugitive his a»ent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove hira to the State whence he fled, and there to deliver him to said claimant, his agent, or attorney. And to this end, the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary to overcome such force, and to retain them in his service so long as circumstances may require. The said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses, as are now allowed by law for the transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States.

Sec. 10. And be it further enacted, That when any person held to service or labor in any State or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor shall be due, his, her, or their agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape aforesaid, and that the person escaping owed service or labor to such party. Whereupon the court shall cause a record to be made of the matter so proved, and also a general description of the person so escaping, with such convenient certainty as may be ; and a transcript of such record authenticated by tho attestation of the clerk, and of the seal of the said court, being produced in any other State, Territory, or District in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other officer authorised by tho law of the United States to cause persons escaping from service or labor to bo delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned. And upon the production by the said party of other and further evidence if necessary, either oral or by affidavit, in addition to what is contained in the said record of the identity of the person escaping, he or she shall be delivered up to the claimant. And the said court, commissioner, judge, or other person authorised by this act to grant certificates to claimants of fugitives, shall, upon the production of the record and other evidences aforesaid, grant to such claimant a certificate of his right to take any such person identified and proved to be owing service or labor as aforesaid, which certificate shall authurize such claimant to seize or arrest and transport such person to the State or Territory from which he escaped : Provided, That nothing herein contained shall be construed as requiring the production of a transcript of such record as evidence as aforesaid. But in its absence, the claim shall be heard and determined upon other satisfactory proofs, competent in law.

HOWELL COBB,

Speaker of the. House of Representatives.

WILLIAM R. KING,

President of the Seriate, pro tempore.

Approved, September 18th, 1850.

MILLARD FILLMORE.

Part First

I. The Constitutional Provision — II. The Statute Provision — III. Review of Decisions.

"The delivery of the property itself — its prompt and immediate delivery — is plainly required, and was intended to be secured." — Chief Justice Taney, in case Trigg v Com. of Pen., 16 Peters, 539.

"But the right to convey is the necessary consequence of a right to delivery. The latter would be good for nothing without the former." Mr. Justice Wayne in the same case.

The Act of Congress of September 18, 1850, relating to fugitives from service or labor, rests for its supposed authority upon a single clause in the Constitution of the United States. In ethe language of that clause, we, accordingly, have an absolute test for the validity of this Act. If it does not perform what the clause requires to be done; or if it does what that does not authorise; it is unconstitutional. Let us, therefore, compare the provision of the Constitution and the provision of the Act. 2

I. The Constitutional Provision. The portion of that instrument, which gives any authority to legislate upon this matter, is the third clause of the Second Section of the Fourth Article, in the following words : —

" No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor ; but shall be delivered up on claim of the party, to whom such service or labor may be due."

Raising no question for the present, as to who are the subjects of this clause, let us inquire what the Constitution directs shall be done with them. The words are not ambgiuous. They are to " be delivered up to the party, to whom such service or labor may be due."

1. There can be no doubt as to the place where this delivery is to be made. There must be an escape from one State into another, — a pursuit to the same State, — an arrest and claim there also; and when the claim has been established, there must be a delivery. It is not to be supposed that this last act has a dill'ercnt locality from those which precede it ; that the examination and decision are to be in one State, and the execution or delivery in another State. Indeed, some respectable jurists have supposed that the whole obligation of this clause rested upon the State where the fugitive is found.* — an opinion, which would have no foundation whatever, if the delivery wore not to be made within its own borders. The Acts of 1793 and of 1850 b.uh follow this construction. Though the words of the latter are not consistent throughout, yet both statutes provide thr.t the fugitive shall be placed in the hands of his master, immediately after the examination, and in the State where that is had.f The delivery of fugitives from justice

* This was Mr. Webster's original opinion. See Speech in the Senate, March 7th, 18-50. t See Act of 1793, Sect. 3, and Act of 1850, Sects. 4 and 6.

under the clause in the Constitution in juxtaposition with this, it may be observed, also takes place in the State where the fugitive is found; and if there be any analogy between these two clauses, it undoubtedly extends far enough to make the place of delivery the same under both.

2. This delivery completely restores the party to "whom such service is due" to his property in the fugitive's labor and his control over his person.

The word <: deliver" has its peculiar legal force. It is an ancient word and of wide signification, coming down to us from the early days of Feudalism, and applying equally to real estate, to personal chattels and incorporeal hereditaments; and it has now the same signification, it had then, denoting the surrender by one and the entry of another into a right, the closing, not the commencing of a bargain. It was long regarded as the most notorious evidence of property in land; and it still has power to fix and determine the rights of parties. It is the delivery which completes the contract and transfers the possession from the seller to the buyer in case of sale. It has the same meaning in martial history. The defeated commander delivers to his victorious enemy, the citadel or fortress, or symbolically for the whole city, the keys of its gates.

Used, as it is, in the Constitution without qualification, it cannot denote any restricted or imperfect right on the part of the master. So full, in fact, is the right secured to the master by this clause of the Constitution, that' the Courts have held that he may, even without legislation, anywhere, lay strong hands upon his fugitive servant, and by force carry him away. The Supreme Court of Massachusetts have so decided.* The Supreme Court of New York have taken the same view; and afterwards the Court of Errors

*2 Pickering's Reports, 11.

for that State in the same case confirmed this ruling.* The Supreme Court of the United States say, "We have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority in every State in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence."!

Indeed, this right of recaption is the first fact that meets us in the discussion of this subject; and it is a very significant fact. He may take his escaped servant, not by virtue of any official character, with which he is clothed, but as his own, in Ids own right; according to the Constitution, as he would take his minor child, and according to the common construction of the Constitution, as he would take his stray horse. The simple fact, that he thus takes him as Ids own, without process of law, leaves no ground for argument, t!:at his right is restricted and special. It not unfrequently happens, that the master, having arrested the fugitive slave, proceeds to sell him to individuals anxious to procure his freedom ; and recently, if we may rely upon newspaper reports, the Supreme Court of Ohio have deeided that such a sale is valid, although the laws of that State recognise no such property; yet. say the Court, the right to sell arises from the right of recaption, most clearly regarding the right of the master as unqualified. Whether there has been such a decision or not, is of little consequence in this connection, as probably no one doubts the right of the master to sell ; and if he have power to sell, then his constitutional right cannot be limited and special. It must be perfect and absolute.

The Courts have, accordingly, held the right of the master

* Jack y Martin, 12 Wendell, 311 (321), and 14 Wendell, 507 (527). fPrig v The Com. of Penn., 16 Peters, 539, (613).

to be absolute and complete, not conditional and limited, The Supreme Court of New York say, " the owner has not only an unqualified right to the possession, but he has the guaranty of the Constitution in respect to it."* The Supreme Court of the United States, in the case before quoted, express the same conclusion in still stronger language ; for they say, "The clause manifestly contemplates the existence of a positive, unqualified right, on the part of the owner of the slave, which no State law or regulation can in any way qualify, regulate, control or restrain : " and again, " 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 in servitude ; " and they also speak of the right of the master, as a positive right, independent of comity and confined to no territorial limits, and bounded by no State regulations or policy," as a right uto the immediate possession of the slave and the immediate command of his service or labor ; " and as if to put the matter beyond dispute, they declare, that, " the clause puts the right to the 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 service or labor."f

By thus interpreting this clause of the Constitution, by following the word "delivered" in its full force, instead of attempting to substitute for it the force of some other words, the Supreme Court have, perhaps, avoided difficulties, not otherwise to be escaped. If, instead of giving to the master an absolute delivery, his right be restricted to a mere removal of his servant or slave to the State whence he escaped, we shall find :