The Volunteer on Constitutional Law

To the Editor of the Herald: -- The editor of the Volunteer gives his readers a short dissertation on Constitutional Law as applicable to Slavery, and decides the act of the last Legislature to be unconstitutional and void!  It strikes me that this is very modest.  He upsets at one dash, the action of two branches of government—the legislature and executive—and the opinion of the Supreme Court of the United States!

Permit me, as I suppose I have studied as much law as the editor of the Volunteer, to examine his positions.  His article down to the end of his quotation from the 4th Section of the law of 1793, is well enough.  The U. States constitution requires runaways to be “delivered up,” and the law of 1793 prescribes the manner in which it shall be done.—  Nor does our State Law enact anything against the recovery of slaves according to the mode pointed out by said act, except so far as regards State officers.  With regard to State officers, I will remark hereafter.

The Volunteer by inference, asserts that the means of recovering slave property is taken away by the State law.  Any person who will examine the law of 1793 and the State law, must see how untrue this inference is.  It is wholly groundless.

We quote from the act of 1793 as copied into the Volunteer:

Act of 12th of Feb. 1793, Sec. 3— “When any person held to labor in any of &c., under the laws thereof, shall escape into any other of the said States or Territories, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize and arrest such fugitive from labor and to take him or her before any judge of the circuit or district courts of the United States &c., or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made,” &c.

The law of Congress does not authorize any Judge or magistrate to issue a warrant to arrest a fugitive from labor, nor does it authorize or empower a constable, a sheriff, or any other person by the owner or his agent is to take “him or her before any Judge of the circuit or district courts of the United States, &c. or before any magistrate of a county, city or town corporate.”

Here I admit our State law comes in collision with the act of Congress, and we will now examine how far that collision is to affect our state law.

In the case of Priggs vs the Commonwealth of Pennsylvania, 16th Peters Report, 542, the Supreme Court of the United States says:

“As to the authority conferred on state magistrates, while a difference of opinion exists, and may exist on this point in different states whether State magistrates are bound to act under it, (the law of Congress of 12th February 1793) none is entertained by the Court, that State magistrates may if they choose, exercise authority, UNLESS PROHIBITED BY STATE LEGISLATION.”

In the same case, page 540 the Court says:

“The court have not the slightest hesitation in holding, that under and by virtue of the constitution, the owner of the slave is clothed with the authority in every state of the Union, to seize and re-capture his slave, wherever he can do it without a breach of the peace or illegal violence.”

Again says the Court in the same case, page 541.  “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 judicial, as the case may require, to carry into effect all the rights and duties imposed by the constitution.”

From these quotations it appears—1st—That State legislation may prohibit State magistrates from taking cognizance of the law of 1793.  Therefore our law which forbids our State Judges and magistrates from acting under that law is constitutional and decided by the highest Judicial tribunal in the country.

2d.  The owner under the law of 1793 has the right to seize and arrest his slave, and no body else has (except his agent or attorney) and there is nothing in our State law to prohibit him from doing so.

3d.  The government of the United States is “bound through its proper departments,” and not through State tribunals, “to carry into effect the rights and duties imposed by the Constitution.”  Of course, it cannot depend with safety, as the Supreme Court admits, on State magistrates.  In case of the recovery of slaves it must depend upon its own judiciary.

Congress does not pretend to enforce it upon the States magistrates to act under the law of 1793.  And the Supreme Court of the United States says the State magistrate may IF HE CHOOSE, act under it, if not prohibited by State legislation.  What therefore becomes of the assertion of the Volunteer, that “the State cannot say, that because they (her magistrates) are acting as her magistrates, that they shall not act for the U.S. also?”  Or its other assertion that “the State is called upon to act, and how can she deliver up fugitive slaves except by means of her officers?”

It is strange that the Volunteer should ask such a question, after quoting from Judge Baldwin, “that the master may pursue and take his slave without a warrant, and use as much force as is necessary to carry him back to his residence.”  If this is true, what need is there for the intervention of State officers?

Who will say after reading the foregoing, that our State law deprives the slave holder of the right of recapture?  He still has the Circuit and District courts of the United States to resort to; and if these are not sufficient the National Government is bound through its own proper departments to furnish other means.  Or as he does not require and is not entitled to a warrant of arrest, he may according to the decision of Judge Baldwin, carry him before any tribunal.

The laws of Pennsylvania in effect, say, to the slave holder—“Come and take your slave as the Constitution and law of the U. S. allows, seize and arrest him, but do it in a peaceable manner, take him before the Judges of the Circuit or District Courts of the U.S., or if you choose take him home with you.  As we have no slaves of our own, and do not wish in any manner to countenance or encourage slavery on the free soil of Pennsylvania, we will not afford you any aid thro’ our Judges, our Magistrates, our executive offices or our Jails.

Such is the language of our State law, and I pledge my very small amount of legal lore that that law will stand the text of the severest and highest ordeal unharmed.