judge, &c., issuing certificate according to the law of Congress of 1793, to make record. 8. Declares penalty for seizing a per

the State Reports. Ch. J. Hornblower considered fully the several questions raised, in his Opinion, which has appeared in several newspapers, and I have his authority for saying that the report in the New York Evening Post, July 30, 1851, from which the extracts given in this volume are taken, is sufficiently authentic. The portion bearing on the construction of the 4th Art. of the Constitution of the United States will be cited hereinafter. See post, ch. XXVI. After which Judge Hornblower, holding that "the proceeding in question had not been in conformity with the provisions of the act of Congress in respect to fugitive slaves, but in pursuance of the law of the State," considered that law in view of the State Constitution, as follows:

"The counsel for the prisoner have insisted upon his enlargement, on the ground that his arrest and commitment were irregular, and unauthorized by the statute. But a preliminary, and, to my mind, a very grave and important, question arises. Admitting the right of State legislation on this subject (which I am not disposed to deny), is the law of this State a constitutional one? It authorizes the seizure and transfer out of this State of persons residing here under the protection of our laws, claiming to be, and who in fact may be, free-born native inhabitants, the owners of property, and the fathers of families, upon a summary hearing before a single judge, without the intervention of a jury, and without appeal! Can such be a constitutional law? Neither the prisoner nor the most obscure individual in the State, whether young or old, bond or free, can be deprived of his liberty or property, or be subject to any forfeitures, pains, or penalties, without a trial by jury in the due course of law. If the prisoner at the bar, instead of being arrested as a slave, had been sued for forty shillings, it could not have been recovered of him but by a verdict of a jury. If a man had come from any other State, and laid claim to any chattel in the possession of the prisoner, he could not have taken it from him but by due course of law. And yet, by this act, a man may be compelled to join issue before a single judge-a judge of his adversary's own choosing, and in a summary way, not according to the course of common law-an issue, it may be, more awful, more agonizing to his soul, than one involving his life and death-an issue on the decision of which hangs that tremendous question whether he is to be separated forcibly and forever from his wife and children, or be permitted to enjoy with them the liberty he inherited and the property he has earned; whether he is to be dragged in chains to a distant land, and doomed to perpetual slavery, or continue to breathe air and enjoy the blessings of freedom -an issue not only involving the question whether he ever was a slave, or, if once a slave, whether he was liberated or actually fled from his master; but, it may be, involving the identity of his person. He may be falsely accused of escaping from his master, or he may be claimed by mistake for one who has actually fled. These are questions of fact, upon proof or failure of proof of which depend results of deep and affecting interest to the individual. If every colored man, woman, and child were slaves, the danger of oppression and injustice by an unfounded or mistaken claim would be of little consequence. But such is not the fact. On the 4th next, there will not be a slave in the State under the age of thirty-two years. All that have been born since the Fourth of July, 1804, are free-men; and by the laws and Constitution of this State every question affecting their rights to property, or of personal liberty and security, is to be tried and settled in the same solemn manner, and by the same tribunals, by which the rights of others are to be determined. By the 23d art. of our Constitution, the trial by jury is guaranteed and preserved to us. Who then shall take it away from any human being living under the protection of our laws? But, it is said, the Constitution of the United States is paramount to that of our State, and by the former we are bound to deliver up persons escaping from labor or service. Granted; and let it be executed fully, fairly, and with judicial firmness and integrity. But what does it require? That VOL. II.-5

son without warrant or "other legal authority for the purpose under some act of the Legislature of this State, or of the Congress of the United States."

1837.-Suppl. to above. Sess. L. 134, providing for a trial by jury on demand of either party. A full re-enactment in 1846. R. S. 567, Elmer's Dig. 764. The act on crimes, § 62, R. S.

the person claimed shall be given up? If it did so, I admit there can be no trial, no appeal; the claim would be final and conclusive. But such is not the language or the meaning of the Constitution. In respect to refugees from justice the case is very different. The Constitution declares that persons charged with crime in any State, shall, on demand of the EXECUTIVE authority of that State, be delivered up (Clark's case, 9 Wend. p. 212). Here is to be an official act; the demand is made by the public authorities, founded simply upon a charge of crime. "The accused is to be delivered up, not to be punished, not to be detained for life, but to be tried, and if acquitted, to be set at liberty. Not so in the matter under consideration. The person claimed is not to be delivered up, unless he was 'held to labor or service,' in another State; that is, unless he was lawfully held to service or labor there; nor unless he has fled or escaped into this State; that is, come into this State without the consent of his owner. And he is to be delivered up, not to the claimant, but only to the person, to whom such labor or service is due.' Here then are facts to be ascertained, not to be taken for granted, but to be lawfully proved and judicially determined; facts which lie at the foundation of the claimant's right; facts which involve the dearest rights of a human being, and which the claimant must establish according to law, before he can acquire any right to carry away his victim. And what legislator, under our Constitution, has a right to say that these facts shall be tried and definitely sealed in a summary manner, and without the verdict of a jury? The Constitution of the United States does not require any such departure from first principles. It only demands that we shall deliver up to his owner a runaway slave, when he has been proved to be such in due course of law. It does not require us to do it without proof, nor upon less or sufficient proof than such as would be sufficient to establish any other issuable fact in our courts of justice.

"A case has been cited from 5 Searg. & Rawl. 62, in which it is said that the Court of Pennsylvania decided that it would not review the proceedings before the inferior magistrate, because the Constitution of the United States requires the slave to be given up; and when it was urged that whether slave or not slave is a question to be settled here, the answer borrowed from that case was, that no injustice would be done to the prisoner, because he can assert his freedom in the place to which he may be transported, and we are bound to presume that he will there have a fair trial. So long as I sit upon this bench, I never can—no, I never will— yield to such doctrine. What, first transport a man out of the State, on the charge of his being a slave, and try the truth of the allegation afterwards-separate him from the place, it may be, of his nativity-the abode of his relatives, his friends, and his witnesses-transport him in chains to Missouri or Arkansas, with the cold comfort that if a freeman he may there establish his freedom! No, if a person comes into this State, and here claims the servitude of a human being, whether white or black, here he must prove his case, and here prove it according to law, and if our legislature have a right to create and regulate a tribunal before whom such proof is to be made, this court, unless restrained by the same authority, have a right and are solemnly bound to review and correct its proceedings.

44

But without pronouncing a settled opinion, that the act of this State is unconstitutional on the ground that it deprives the accused of a trial by jury, it remains to be considered whether the provisions of the statute have been complied with."

275, declares the punishment for kidnapping any person "bond or free" with intent to send out of the State.

1844. A new Constitution. Art. 1, a Bill of Rights, attributes rights to all persons as natural and unalienable. Art. 2 confines the suffrage to whites.'

1846.-A Revision. An act to abolish slavery, R. S. p. 382. Sec. 1. "That slavery in this State be and it is hereby abolished, and every person who is now holden in slavery by the laws thereof be and hereby is made free, subject however to the restrictions and obligations hereinafter mentioned and imposed, and the children hereafter to be born to all such persons shall be absolutely free from their birth and discharged of and from all manner of service whatsoever." 2. All "such persons" shall be bound as apprentices to their former owners. Other sections provide how such apprentices may be discharged, against removing them from the State, and other ordinary provisions. Sec. 27 declares it lawful for non-residents traveling to bring and carry away slaves, not more than the "usual number" of household slaves.

$553. LEGISLATION OF THE STATE OF PENNSYLVANIA.

1776. Sept. First Constitution. Ch. I. sec. 1, declares all men born equally free, &c., &c. Ch. II. sec. 6, declaring the elective franchise, makes no distinction between freemen in respect to color.

1780.-March 1. An act for the gradual abolition of slavery. 2 Carey & Bioren's Laws, 246. After reciting in sec. 1, 2, the motives of the act,' sec. 3 enacts, "That all per

1 In State v. Post, 1 Zab. 699, S. C., and State v. Van Buren, Spencer, 368, it was held that slavery had not been abolished in New Jersey by the Constitution. 2 The first section, affirming gratitude to God for deliverance from "that condition to which the arms and tyranny of Great Britain were exerted to reduce us," &c., declares, “Impressed with these ideas we conceive that it is our duty, and we rejoice that it is in our power, to extend a portion of that freedom to others which hath been extended to us, and release from that state of thraldom to which we ourselves were tyrannically doomed and from which we have now every prospect of being delivered. It is not for us to inquire why, in the creation of mankind, the inhabitants of the several parts of the earth were distinguished by a difference in feature or complexion. It is sufficient to know that all are the work of an Almighty hand. We find," &c. * "We esteem it a peculiar blessing granted to us that we are enabled this day to add one more step to universal civilization,

*

sons, as well negroes and mulattoes as others, who shall be born within this State from and after the passing of this act shall not be deemed and considered as servants for life or slaves; and that all servitude for life or slavery of children in consequence of the slavery of their mothers, in the case of all children born within this State from and after the passing of this act as aforesaid, shall be and hereby is utterly taken away, extinguished, and forever abolished." 4. Provides that negro and mulatto children born after this act, shall be servants until twenty-eight years of age, to be in the condition of servants bound by indenture. 5. Requires all slaves to be registered.' 6. Owners liable for support, unless emancipating before they arrive at twenty-eight years. 7. Negroes to be tried like other inhabitants. 8. Slave sentenced to death to be appraised. Reward for taking runaway negroes the same as in case of white servants. 10. None to be deemed slaves but those registered," and "except the domestic slaves attending upon Del

9.

by removing as much as possible the sorrows of those who have lived in undeserved bondage, and from which, by the assumed authority of the kings of Great Britain, no effectual legal relief could be obtained. Weaned, by a long course of experience from those narrow prejudices and partialities we had imbibed, we find our hearts enlarged with kindness and benevolence towards men of all conditions and nations; and we conceive ourselves at this particular moment extraordinarily called upon, by the blessings which we have received, to manifest the sincerity of our profession and to give a substantial proof of our gratitude."

Sec. 2. "And whereas the condition of those persons who have heretofore been denominated negro and mulatto slaves has been attended with circumstances which not only deprived them of the common blessings that they were by nature entitled to, but has cast them into the deepest afflictions, by an unnatural separation and sale of husband and wife from each other and from their children, an injury the greatness of which can only be conceived by supposing that we were in the same unhappy case. In justice, therefore, to persons so unhappily circumstanced, and who, having no prospect before them whereon they may rest their sorrows and their hopes, have no reasonable inducement to render their services to society, which they otherwise might, and also in grateful commemoration of our own happy deliverance from that state of unconditional submission to which we were doomed by the tyranny of Britain," &c., &c.

1 Kauffman v. Oliver (1849), 10 Barr, 516, per Coulter, J., "From that time [the passage of this act] Pennsylvania has been deemed and taken as a free State, and as such assented to the compact of Union."

Respublica v. Negro Betsy, 1 Dallas, 469.

Miller v. Dwilling, 14 S. & R. 422. The child of a servant until the age of twenty-eight years cannot be held to servitude for the same period and on the same conditions as its mother, who was the daughter of a registered slave. Comm. v. Holloway, 2 S. & R. 305, the child born in Pennsylvania of a woman slave, fugitive from another State, is free-born and not liable to service for the twenty-eight years.

egates in Congress from the other American States, foreign ministers and consuls, and persons passing through or sojourning in this State and not becoming resident therein, and seamen employed in ships not belonging to any inhabitant of this State nor employed in any ship owned by any such inhabitant. Provided, such domestic slaves be not aliened or sold to any inhabitant nor (except in the case of members of Congress, foreign ministers and consuls) retained in this State longer than six months." 11. Provided, that this act "shall not give any relief or shelter to any absconding or runaway negro or mulatto slave or servant who has absented himself or shall absent himself from his or her owner, master or mistress residing in any other State or country, but such owner, &c., shall have like right and aid to demand, claim, and take away his slave or servant as he might have had in case this act had not been made." (Repealed by law of 1826.) 12, 13. To prevent evasions of this act by bringing in negroes to serve for long terms, enacts that no covenant of service be good for more than seven years, &c. 14. Repeals the colonial acts of 1705, for the trial of negroes; of 1725, for the regulating, &c.; of 1761 and 1773, for laying duties on negroes imported.

An exception to the operation of this act as made by an act of 1781 (Carey & Bioren, ch. 942), relating to persons compelled by the enemy to take refuge within the State; and another by act of 1782, as to registry in certain border counties.2 1785. An act relating to German servants imported and their indentures, 3 Carey & Bioren, c. 1151.'

1788.-An act to explain and amend the act of 1780. 3 Carey & Bioren, c. 1334, reciting abuses, provides, sec. 1, that slaves brought in by persons intending to reside shall be free.'

1 Comm. ex. rel. Lewis v. Holloway, 2 Binney 213, the privilege in the case of members of Congress is not limited to the time in which Congress is in session. * Pennsyl. v. Blackmore (1796), Addison's R. 283, noteworthy as showing the temper of the time; a case under this statute.

In Resp. v. Keppel, 2 Dallas, 197, S. C., 1 Yeates, 233, the difference between the condition of indentured servants and apprentices is laid down by the court, holding that a resident minor cannot be bound out to serve generally, without reference to his learning some trade. See also the distinction in Altemus v. Ely, 3 Rawle, 305.

* In Belt v. Dalby (1786), 1 Dallas, 167, the court maintained the slavery of one