tion of the United States, the owners of fugitive slaves might enter the State, seize them and remove them from its limits without applying to any civil authority. This part of the charge will be again noticed in the next chapter, as it has been sometimes cited among the authorities for the doctrine that the claimant may, by virtue of this provision in the Constitution, seize and remove the fugitive.

But Judge Baldwin also spoke of the rights which owners of slaves had under the Act of Congress, and of the fact that that Act had been recognized as constitutional by the Supreme Court of Pennsylvania. On page 594, he said:-"In addition to these rights, Mr. Johnson had one other important one to which we invite your special attention, and a comparison of the right given and the duty enjoined by the Constitution of the United States with the eleventh section of the Abolition Act of 1780." After reciting the constitutional provision, the judge said: "Pursuant to this provision of the Constitution, the act of Congress of the 12th of February, 1793, was passed, not to restrain the rights of the master, but to give him the aid of a law to enforce them. This law has been read to you, together with the opinion of our respected predecessors in the case of Hill v. Low, to which we give our entire assent, so far as it affirms the unqualified right of the master to seize, secure, and remove his fugitive slave." The case which Judge Baldwin thus refers to has been herein before noticed. According to the report, Judge Washington did not affirm "the unqualified right of the master to seize and remove his fugitive slave." The question of the existence of such a right was not made, and the opinion, if it had been pronounced, would have been extra-judicial.'

Next, in Judge Baldwin's Opinion, follows, with marks of quotation, as if copied from Hill v. Low, a summary of the act of 1793, which, however, is not to be found in the report of the case in 4 Wash., and also, with quotation marks, the following sentences, which likewise are not to be found in that

1 This mis-citation by Judge Baldwin deserves especial notice as an impor tant link in the historical development of the doctrine that this provision gives the claimant a right to seize and remove the fugitive, and the connected doctrine that, in this provision, slaves are recognized as chattels, and not persons.

report:"By this it clearly appears that the claimant, his agent or attorney, has the authority of this law to seize and arrest, without warrant or legal process, the fugitive he claims, and that without being accompanied by any civil officer, though it would be prudent to have such officer keep the peace. Whilst thus seized and arrested, the fugitive is as much in the custody of the claimant, his agent or attorney, as he would be in that of a sheriff or other officer of justice having legal process to seize and arrest, who may use any place proper in his opinion for temporary and safe custody." The quotation marks in these instances must have been the error of the press, and the passages thus marked original with Judge Baldwin. Judge Baldwin then said:"Do you perceive in this anything discordant with the feelings, the spirit, the policy, or the legislation of Pennsylvania as manifested in the abolition act, or the one passed to amend and explain it? Do these constitutional and legal provisions give any right to the plaintiff, or enjoin any duty on others, which are not the fundamental principles of her own laws, as acted on and enforced in her own courts, as of paramount and supreme authority? If you have any doubt, here is the opinion of one of the most humane and benevolent judges who ever presided in any court, the late Chief Justice Tilghman, in delivering the opinion of the Supreme Court of this State." Judge Baldwin then cited from Wright v. Deacon, 5 S. & R. 63, Tilghman's remarks supporting the constitutionality of the law of 1793. But it will be remembered that in that case the fugitive was in custody, under a certificate given by a State judge, under the act of 1793; it does not appear whether he had been brought before that judge with or without warrant, and it was expressly said by Judge Tilghman that the owner's right to "arrest such fugitive and carry him before" a judge, &c., was derived from the statute. Judge Tilghman said nothing of a right to seize and remove the slave without the action of some civil authority, and such a right was not claimed.

Judge Baldwin infers from these cases that the Supreme Court of Pennsylvania must be held, in Wright v. Deacon, to have interpreted the constitutional provision as meaning, that

fugitive slaves shall be treated in the States into which they may escape in the same manner as they might be in the State from which they had fled. On p. 596: "This is the spirit of the law, policy and feeling of Pennsylvania, as declared by the Supreme Court; and if the acts and proceedings of the inferior courts and judges in opposition to the rights of the owners of fugitive slaves [referring to the writ de hom. rep. in Wright v. Deacon] are quashed as illegal, of what nature must be the lawless conduct of individuals who, by an assumed authority, undertake to obstruct the execution of the supreme law of the land ?"

The portion of Judge Baldwin's charge' immediately fol

"The Supreme Court declares that the Constitution of the United States would never have been formed or assented to by the southern States without some provision for securing their property in slaves. Look at the first Article and you will see that slaves are not only property as chattels, but political property, which confers the highest and most sacred political rights of the States, on the inviolability of which the very existence of this Government depends.

"The apportionment among the several States, comprising this Union, of their representatives in Congress.

"The apportionment of direct taxes among the several States.

"The number of electoral votes for President and Vice-President to which they shall respectively be entitled.

The basis of these rights is, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians, not taxed, three fifths of all other persons.' So that, for all these great objects, five slaves are, in federal numbers, equal to three freemen. You thus see that in protecting the rights of a master in the property of a slave, the Constitution guarantees the highest rights of the respective States, of which each has a right to avail itself, and which each enjoys in proportion to the number of slaves within its boundaries.

"This was a concession to the southern States; but it was not without its equivalent to the other States, especially the small ones-the basis of representation in the Senate of the United States was perfect equality, each being entitled to two senators-Delaware had the same weight in the Senate as Virginia.

"Thus you see that the foundations of the Government are laid, and rest on the rights of property in slaves. The whole structure must fall by disturbing the corner-stone. If federal numbers cease to be respected or held sacred in questions of property or government, the rights of the States must disappear, and the Government and the Union dissolve by the prostration of its laws before the usurped authority of individuals.

"We shall pursue this subject no further, in its bearing upon the political rights of the States composing the Union. In recalling your attention to these rights, which are the subject of this controversy, we declare to you as the law of the case that they are inherent and inalienable, so recognized by all our funda

mental laws.

66

The Constitution of the State or Union is not the source of these rights, or the others to which we have referred you; they existed in their plenitude before any constitutions, which do not create but protect and secure them against any violation, by the Legislatures or courts, in making, expounding, or administering laws.

"The nature of this case, its history, and the course of the argument, call on

lowing the last quotation is remarkable as the development of that peculiar style of argument, on questions of this class, which has been adopted by more than one other distinguished judge' since it was originated by Chief Justice Tilghman. It is given in the note below.

Independently of the erroneous citation of the two cases upon which the earlier part of the argument is founded, it is doubtful whether Judge Baldwin did not intend to rest the owner's right to seize and remove the slave upon the several law of Pennsylvania, rather than on the provision acting as national law in all the States.

8743. In the case of Jack v. Martin (1834), 12 Wendell, Chief Justice Nelson, delivering the opinion of the Supreme Court of New York, seems to have regarded the provision as taking effect directly on private persons in the first instance, according to the fourth construction, while yet also maintaining the second or the third construction as the basis of the power of Congress. Judge Nelson not only regarded the right of seizure, allowed by the statute for the purpose of making a claim, as a right existing by the provision itself, but also spoke of the right of seizure and removal as part of the effect of the clause, which, in his view, carried the rights of the owner into

us to declare explicitly what is the effect of a constitutional protection or guarantee of any right, or the injunction of any duty. The twenty-sixth section of the bill of rights in the Constitution of Pennsylvania is in these words: 'To guard against transgressions of the high powers we have delegated, we declare [we, the people of Pennsylvania,] that everything in this article is excepted out of the general powers of Government, and shall forever remain inviolate.'. A higher power declares this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme laws of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' Const. U. S. Art. 6, clause 2.

"An amendment of the Constitution is of still higher authority, for it has the effect of controlling and repealing the express provisions of the Constitution authorizing a power to be exercised, by a declaration that it shall not be construed to give such power. 3 Dall. 382.

"We have stated to you the various provisions of the Constitution of the United States, and its amendments, as well as that of this State; you see their authority and obligation to be supreme over any laws or regulations which are repugnant to them, or which violate, infringe, or impair any right thereby secured; the conclusions which result are too obvious to be more than stated.

"Jack was the property of the plaintiff, who had a right to possess or protect his slave or servant, whom he had a right to seize and take away to his residence in New Jersey by force, if force was necessary; he had a right to secure him from escape or rescue by any means not cruel or wantonly severe."

As by Wayne, J., 16 Peters', 645.

the State in which the slave had fled. On page 311, he said: "The right of the master to take the slave without a warrant, according to the provisions of the statute of 1793, would appear to follow as a necessary consequence from the undoubted position that under this clause of the Constitution the right and title of the owner to the service of the slave is as entire and perfect within the jurisdiction of the State to which he has fled as it was in the one from which he escaped. Such seizure would be at the peril of the party; and if a freeman was taken, he would be answerable like any other trespasser or kidnapper." If this is to be understood in the full extent of the words it would justify the owner, not only in the seizure, but also in removing the slave without making any application to any civil authority within the jurisdiction. In the instance which had actually come before the court, however, the seizure had been followed by the claimant's bringing the slave before a State magistrate, according to the terms of the Act of Congress.

In maintaining the validity and exclusive operation of the Act of Congress, Judge Nelson also used expressions which may support the second construction, but which harmonize best with that adaptation of the third construction which attributes to the national Government a duty correlative with the claimant's right. On page 319 of the report, the Chief Justice said:" It [the provision] implies a doubt whether they [the States] would, in the exercise of unrestrained power, regard the rights of the owner or properly protect them by local legislation.' The object of the provision being thus pal

So on page 311, Judge Nelson said:-"The idea that the framers of the Constitution intended to leave the legislation of this subject to the States, when the provision itself obviously sprung out of their fears of partial and unjust legislation by the States in respect to it, cannot be admitted." It is admitted on all hands that if this provision had not been introduced into the Constitution the owner's claim to a delivery of his fugitive slave would have depended entirely upon the several will of the State into which he might have escaped. Yet, in these places the judge speaks of the owner's claim as a legal right, independently of this provision, or as one which the State would have been under a legal obligation to recognize. The jurists of the slaveholding States insist that all states are bound by comity to allow the owner to recapture the fugitive slave. But that is matter of opinion as to what ought to be a doctrine of international law. It is nothing to the purpose here. Any man may hold that opinion; but a judge being of that opinion has no ground for declaring that the claim, as against a non