« ZurückWeiter »
from whence hemony or affidavit taken before and certified by a magistrate of any such
state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labour to the person claiming him or her, it shall be the duty of such
service or labour may be due. It is exceedingly difficult, if not impracticable, to read this language, and not to feel that it contemplated some further remedial redress than that which might be administered at the hand of the owner himself. “A claim" is to be made. Ibid.
“A claim” in a just juridical sense, is a demand of some matter as of right, made by one person upon another to do or to forbear to do some act or thing as a matter of duty. It cannot well be doubted, that the constitution requires the delivery of the fugitive “ on the claim” of the master: and the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be, that where the end is required, the means are given ; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is intrusted. Ibid.
The clause relating to fugitive slaves is found in the national constitution, and not in that of any state. It might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government; nowhere delegated or intrusted to them by the constitution. On the contrary, the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, executive, or judiciary, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution. Ibid.
A claim to a fugitive slave is a controversy in a case “arising under the constitution of the United States,” under the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity, for the very purpose of giving effect to the right; and if so, then it may prescribe the mode and extent to which it shall be applied ; and how, and under what circumstances, the proceedings shall afford a complete protection and guarantee of the right. Ibid.
The provisions of the sections of the act of Congress of 12th February, 1793, on the subject of fugitive slaves, as well as relative to fugitives from justice, cover both the subjects; not because they exhaust the remedies, which may be applied by Congress to enforce the rights, if the provisions shall be found, in practice, not to attain the objects of the constitution: but because they point out all the modes of attaining those objects which Congress have as yet deemed expedient and proper. If this is so, it would seem, upon just principles of construction, that the legislation of Congress, if constitutional,
must supersede all state legislation upon the same subject; and by necessary implication prohibit it. For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere. Where Congress have an exclusive power over a subject, it is not competent for state legislation to interfere, Ibid.
The clause in the constitution of the United States, relating to fugitives from labour, 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. Any state law or regulation, which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his services or labour, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much he is discharged from; but whether he is discharged from any, by the natural or necessary operation of the state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive right. Ibid.
The constitutionality of the act of Congress relating to fugitives from labour, has been affirmed by the adjudications of the state tribunals, and by those of the courts of the United States. If the question of the constitutionality of the law were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it; and such extensive and uniform recognitions would, in the judgment of the court, entitle the question to be considered at rest. Congress, the executive, and the judiciary, have, upon various occasions, acted upon this as a sound and reasonable doctrine. Cited, Stuart v. Laird, 1 Cranch, 299. Martin v. Hunter, 1 Wheat. 304. Cohens v. The Commonwealth of Virginia, 6 Wheat. 264. Ibid.
The provisions of the act of 12th February, 1793, relative to fugitive slaves is clearly constitutional in all its leading provisions; and, indeed, with the exception of that part which confers authority on state magistrates, is free from reasonable doubt or difficulty. As to the authority so conferred on state magis. trates, while a difference of opinion exists, and may exist on this point, in different states, whether state magistrates are bound to act under it, none is entertained by the court, that state magistrates may, if they choose, exercise the authority, unless prohibited by state legislation. Ibid.
The power of legislation in relation to fugitives from labour, is exclusive in the national legislature. Ibid.
The right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever state of the Union they may be found, is, under the constitution, recognized as an absolute positive right and duty, pervading the whole Union with an equal and supreme force; uncontrolled and uncontrollable by state sovereignty or state legislation. The right and duty are co-extensive and uniform in remedy and operation throughout the whole Union. The owner has the same security and the same remedial justice, and the same exemption from state regulations and control, through however many states he may pass with the fugitive slave in his possession, in transitu, to his domicile. Ibid.
The act of the legislature of Pennsylvania upon which the indictment against Edward Prigg, for carry. ing away a fugitive slave, is founded, is unconstitutional and void. It purports to punish as a public offence against the state, the very act of seizing and removing a slave by his master, which the constitution of the United States was designed to justify and uphold. Ibid.
There is no general prin in the law of nations, which requires a surrender of a fugitive slave. The surrender must be required by compact. Jones v. Vanzant, 2 MʻLean's C. C. R. 596.
judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labour, to the state or territory from which he or she fled.
Sec. 4. And be it further enacted, That any person who shall know- Penalty on ob. ingly and willingly obstruct or hinder such claimant, his agent or at- structing claimtorney in so seizing or arresting such fugitive from labour, or shall
ants of fugitives
from labour. rescue such fugitive from such claimant, his 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 labour, as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by and for the benefit of such claimant, by action of debt, in any court proper to try the same; saving moreover to the person claiming such labour or service, his right of action for or on account of the said injuries or either of them.
Approved, February 12, 1793.]
Chap. VIII.-An Act for enrolling and licensing ships or vessels to be employed Feb. 18, 1793.
in the coasting trade and fisheries, and for regulating the same. Section 1. Be it enacted by the Senate and House of Representa- shall be deemed tives of the United States of America in Congress assembled, That ships of the United or vessels, enrolled by virtue of “An act for registering and clearing States. vessels, regulating the coasting trade, and for other purposes," and those
Ships or veg.
sels enrolled of twenty tons and upwards, which shall be enrolled after the last day under this act of May next, in pursuance of this act, and having a license in force, or alone entitled to if less than twenty tons, not being enrolled shall have a license in force, the privileges of
the coasting as is herein after required, and no others, shall be deemed ships or ves- trade. sels of the United States, entitled to the privileges of ships or vessels Act of Sept. 1, employed in the coasting trade or fisheries.
1789, ch. 11. Sec. 2. And be it further enacted, That from and after the last day
Ships to pos
sess the requiof May next, in order for the enrolment of any ship or vessel, she shall sites required possess the same qualifications, and the same requisites, in all respects, by a certain act, shall be complied with, as are made necessary for registering ships or
to obtain enrol. vessels, by the act, intituled “An act concerning the registering and re- Dec. 31, 1792, cording of ships or vessels," and the same duties and authorities are ch. 1. hereby given and imposed on all officers, respectively, in relation to such
1812, ch. 40. enrolments, and the same proceedings shall be had, in similar cases, touching such enrolments; and the ships or vessels so enrolled, with the master, or owner or owners thereof, shall be subject to the same requi
Damages for harboring or concealing a slave, in a free state, are recoverable only by the constitution and act of Congress. Ibid.
Notice that the persons harbored or concealed are fugitives from labour, need not be in writing by the claimant, or his agent, nor need it be given by either of them verbally. Notice under the act of Congress, means knowledge. Ibid.
If there be evidence conducing to show such notice or knowledge, it will go to the jury, who will judge of its sufficiency. The same principles apply to the evidence of harboring or concealing the fugitives. Ibid.
Any overt act, which intentionally places a fugitive from labour beyond the reach of his master, or is calculated to have such an effect, is a harboring of the fugitive within the statute. Jones v. Vanzant, 2 M‘Lean's C. C. R. 611.
If the defendant had full knowledge from the negroes or otherwise, that they are fugitives from labour, it is notice under the statute. Ibid.
If the plaintiff was subjected to a certain reward, by the laws of Kentucky, for the return of his slaves, and the defendant was the cause of his liability to such payment, it may constitute a part of his damages. Ibid.
Where the defendant has been the means of the entire loss of the slave, evidence may be received of the loss of such slave, by showing what his services were worth, as conducing to show that fact, for what sum he might have been sold. Ibid.
The act of Congress on the subject of fugitive slaves is constitutional, and does not conflict with the ordinance for the government of the Northwestern territory. Ibid. Vol. I.-39
2 c 2
sites, as are in those respects provided for vessels registered by virtue of the aforesaid act; the record of which enrolment shall be made, and an
abstract or copy thereof granted, as nearly as may be, in the form followForm of en. ing :“Enrolment in conformity to an act of the Congress of the United rolment. States of America, intituled 'An act for enrolling and licensing ships
or vessels, to be employed in the coasting trade and fisheries, and for regulating the same' [inserting here, the name of the person, with his occupation and place of abode, by whom the oath or affirmation is to be made) having taken and subscribed the oath (or affirmation) required by this act, and having sworn (or affirmed) that he (or she, and if more than one owner, adding the words “ together with," and the name or names, occupation or occupations, place or places of abode, of the owner or owners) is, (or are) a citizen (or citizens) of the United States, and sole owner (or owners) of the ship or vessel, called the [inserting here her name) of [inserting here the name of the port to which she may belong] whereof (inserting here the name of the master] is at present master, and is a citizen of the United States, and that the said ship or vessel was [inserting here when and where built] and [inserting here the name and office, if any, of the person by whom she shall have been surveyed, or admeasured] having certified, that the said ship or vessel has (inserting here the number of decks) and [inserting here the number of masts) and that her length is inserting here the number of feet) her breadth [inserting here the number of feet] her depth [inserting here the number of feet] and that she measures (inserting here her number of tons) that she
is [describing here, the particular kind of vessel, whether ship, brigantine, snow, schooner, sloop, or whatever else, together with her built, and specifying, whether she has any or no gallery or head] and the said [naming the owner, or the master, or other person acting in behalf of the owner or owners, by whom the certificate of admeasurement shall have been countersigned] having agreed to the description and admeasurement above specified, and sufficient security having been given, according to the said act, the said ship or vessel has been duly enrolled, at the port of [naming the port where enrolled.]
Given under my hand and seal, at (naming the said port] this [insert1798, ch. 77, ing the particular day] day of [naming the month) in the year, [specifying
the number of the year, in words at length.]”
Sec. 3. And be it further enacted, That it shall and may be lawful ditions collect for the collectors of the several districts, to enrol and license any ship ors may enrol vessels. or vessel, that may be registered, upon such registry being given up, or
to register any ship or vessel, that may be enrolled, upon such enrolment Vesnels may and license being given up. And when any ship or vessel shall be in giving up enrol- any other district than the one to which she belongs, the collector of
such district, on the application of the master or commander thereof, and upon his taking an oath or affirmation, that according to his best knowledge and belief, the property remains, as expressed in the register
or enrolment proposed to be given up, and upon his giving the bonds To such cases required for granting registers, shall make the exchanges aforesaid ; but transmitted to
in every such case, the collector, to whom the register, or enrolment and the Register of license may be given up, shall transmit the same to the register of the the Treasury.
treasury; and the register, or enrolment and license, granted in lieu thereof, shall, within ten days after the arrival of such ship or vessel
within the district, to which she belongs, be delivered to the collector Penalty on of the said district, and be by him cancelled. And if the said master failure to deliv. er up enrolment
or commander shall neglect to deliver the said register or enrolment and and license. license, within the time aforesaid, he shall forfeit one hundred dollars.
Licenses for Sec. 4. And be it further enacted, That in order to the licensing of carrying on the any ship or vessel, for carrying on the coasting trade or fisheries, the coasting trade.
husband, or managing owner, together with the master thereof, with one or more sureties to the satisfaction of the collector granting the same,
On what con.
shall become bound to pay to the United States, if such ship or vessel be of the burthen of five tons, and less than twenty tons, the sum of one Penalty on hundred dollars; and if twenty tons, and not exceeding thirty tons, the employing such sum of two hundred dollars; and if above thirty tons, and not exceeding to the laws of sixty tons, the sum of five hundred dollars; and if above sixty tons, the the U. States. sum of one thousand dollars, in case it shall appear, within two years from the date of the bond, that such ship or vessel has been employed in any trade, whereby the revenue of the United States has been de frauded during the time the license granted to such ship or vessel remained in force; and the master of such ship or vessel shall also swear, or affirm, that he is a citizen of the United States, and that such license shall not be used for any other vessel, or any other employment, than that for which it is specially granted, or in any trade or business, whereby the revenue of the United States may be defrauded; and if such ship or vessel be less than twenty tons burthen, the husband or managing owner shall swear or affirm, that she is wholly the property of a citizen or citizens of the United States; whereupon it shall be the duty of the collector of the district comprehending the port, whereto such ship or vessel may belong, (the duty of six cents per ton being first paid) to grant a license, in the form following: “License for carrying on the form of license. here insert, coasting trade, whale fishery, or cod fishery, as the case may be.]
• In pursuance of an act of the Congress of the United States of Form of liAmerica, intituled “ An act for enrolling and licensing ships or vessels conse to coast.
ing to be employed in the coasting trade and fisheries, and for regulating the same,” (inserting here the name of the husband or managing owner, with his occupation and place of abode, and the name of the master, with the place of his abode) having given bond, that the [insert here the description of the vessel, whether ship, brigantine, snow, schooner, sloop, or whatever else she may be,] called the [insert here, the vessel's name,] whereof the said (naming the master) is master, burthen [insert here, the number of tons, in words] tons, as appears by her enrolment, dated at [naming the district, day, month and year, in words at length, (but if she be less than twenty tons, insert, instead thereof,) proof being had of her admeasurement] shall not be employed in any trade, while this license shall continue in force, whereby the revenue of the United States shall be defrauded, and having also sworn (or affirmed) that this license shall not be used for any other vessel, or for any other employment, than is herein specified, license is hereby granted for the said (inserting here, the description of the vessel) called the [inserting here the vessel's name] to be employed in carrying on the [inserting here, coasting trade, whale fishery, or cod-fishery, as the case may be] for one year from the date hereof, and no longer : Given under my hand and seal, at (naming the said district) this inserting the particular day] day of [naming the month) in the year [specifying the number of the year in words at length.]” Sec. 5. And be it further enacted, That no license, granted to any
How far li.
censes shall be ship or vessel, shall be considered in force, any longer than such ship or deemed in force vessel is owned, and of the description set forth in such license, or for as long as the carrying on any other business or employment, than that for which she
vessel shall be
owned and emis specially licensed, and if any ship or vessel be found with a forged or ployed accordaltered license, or making use of a license granted for any other ship or ing to its terme. vessel, such ship or vessel, with her tackle, apparel, and the cargo found on board her, shall be forfeited.
Sec. 6. And be it further enacted, That after the last day of May Certain vesnext, every ship or vessel of twenty tons or upwards (other than such as selon not com.
plying with this are registered) found trading between district and district, or between act different places in the same district, or carrying on the fishery, without being enrolled and licensed or if less than twenty tons, and not less
number li. censes.
than five tons, without a license, in manner as is provided by this act,
such ship or vessel, if laden with goods the growth or manufacture of to pay foreign the United States only (distilled spirits excepted) or in ballast, shall
pay duties. the same fees and tonnage in every port of the United States, at which
she may arrive, as ships or vessels not belonging to a citizen or citizens of the United States, and if she have on board any articles of foreign
growth or manufacture, or distilled spirits, other than sea-stores, the ship Such ship or or vessel, together with her tackle, apparel and furniture, and the lading vesse to be for. found on board, shall be forfeited: Provided, however, if such ship or feited.
vessel be at sea, at the expiration of the time for which the license was given, and the master of such ship or vessel shall swear or affirm that such was the case, and shall also within forty-eight hours after his arrival deliver to the collector of the district in which he shall first arrive the license which shall have expired, the forfeiture aforesaid shall not be incurred, nor shall the ship or vessel be liable to pay the fees and ton
nage aforesaid. Collectors to Sec. 7. And be it further enacted, That the collector of each district
shall progressively number the licenses by him granted, beginning anew at the commencement of each year, and shall make a record thereof in
a book, to be by him kept for that purpose, and shall, once in three To transmit months, transmit to the register of the treasury, copies of the licenses, copies of
li; which shall have been so granted by him; and also of such licenses, as by him to the shall have been given up or returned to him, respectively, in pursuance Register of the of this act. And where any ship or vessel shall be licensed, or enrolled Treasury. anew, or being licensed or enrolled, shall afterwards be registered, or
being registered, shall afterwards be enrolled, or licensed, she shall, in
every such case, be enrolled, licensed or registered by her former name. Vessels before Sec. 8. And be it further enacted, That if any ship or vessel, enproceeding on a rolled or licensed, as aforesaid, shall proceed on a foreign voyage, withforeign voyage failing to give up
out first giving up her enrolment and license, to the collector of the disenrolment and trict comprehending the port, from which she is about to proceed on obtain register. such foreign voyage, and being duly registered by such collector, every
such ship or vessel, together with her tackle, apparel and furniture, and To be forfeited, the goods, wares and merchandise, so imported therein, shall be liable Proviso. to seizure and forfeiture: Provided always, if the port, from which
such ship or vessel is about to proceed on such foreign voyage, be not within the district, where such ship or vessel is enrolled, the collector of such district shall give to the master of such ship or vessel a certificate, specifying that the enrolment and license of such ship or vessel is received by him, and the time when it was so received; which certificate shall afterwards be delivered by the said master to the collector,
who may have granted such enrolment and license. Forfeiture on Sec. 9. And be it further enacted, That the license, granted to any give up license, ship or vessel, shall be given up to the collector of the district, who may about to expire. have granted the same, within three days after the expiration of the
time, for which it was granted, in case such ship or vessel be then within the district, or if she be absent, at that time, within three days from her first arrival within the district afterwards, or if she be sold out of the district, within three days after the arrival of the master within any
district, to the collector of such district, taking his certificate therefor; Forfeiture not and if the master thereof shall neglect, or refuse to deliver up the license, to be incurred if license proved
as aforesaid, he shall forfeit fifty dollars; but if such license shall have to have been been previously given up to the collector of any other district, as authormislaid, ized by this act, and a certificate thereof under the hand of such collec
tor, be produced by such master, or if such license be lost, or destroyed, or unintentionally mislaid, so that it cannot be found, and the master of such ship or vessel shall make and subscribe an oath or affirmation, that such license is lost, destroyed, or unintentionally mislaid, as he rerily believes, and that the same, if found, shall be delivered up, as is