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to his indentity; he may be determined to belong to | manner, one of imagination only. If public statethe claimant, and to be delivered up to him, with a ments of the press, and as is believed, remaining uncertificate of title, purporting to give the claimant ab- contradicted, are true, a free man, immediately solute and irresistable legal power to take him to his after this enactment, was seized under it in Philaplantation. And having got him there without the delphia by an agent, and determined to belong to the possibility of molestation by any court or magistrate claimant, and sent to him in another State under the on the way, he may keep him there in endless servi- commissioner's certificate. The supposed master, tude, or sell him into a still farther distant State or however, was too honest to receive him, and denyterritory, where relief or escape would be utterly ing ownership set him at large again. hopeless.

Now, by whatever name this hearing and determining may be called, it is obviously, to all practical purposes and results, a trial of a man's right to his freedom, and a judgment against him as final and conclusive as could be that of any judicial court on earth, if the claimant chooses so to avail himself of it. For, if all the provisions of this statute be constitutional, no earthly legal power exists to rescue the prisoner from him on his way, by any appeal to any court: and none to enable him to get a trial in any State where his master may take him, unless by his consent; and none to prevent his selling him at his pleasure into any far-distant and remote region. And it is, in effect, such a judgment, by a person who is no legal judge, not founded on any verdict of a jury, and upon evidence that could not be offered in any court of justice in any State in the Union, in support of a claim to the most worthless chattel that an owner would deem worth reclaiming at the cost of a jury trial.

That there are numerous individuals in many States ready at all times to kidnap free men and children for the purpose of selling them into slavery, is too abundantly proved by almost daily instances to admit of doubt. And it would be difficult to conceive of a more safe and ready mode of perpetrating this crime than is afforded by this law in the ex parte evidence taken, it may be, in a far distant State or territory, which it makes conclusive of ownership and escape, and admissible as to identity, and which evidence no person capable of the crime of kidnapping would hesitate, if possible, to manufacture. Nor is complexion any certain protection to the poor and unknown white man; for it varies in unquestionable slaves, from the Caucasian to the African, in all shades of color.

There is one class of free men particularly exposed to this danger; and especially as the claimant of one of them might feel that in resorting to the means furnished by this statute he was doing so only for the recovery of what he believed to be truly his property, of which he had been unjustly deprived. Reference is, had to that class of persons who have been slaves, but who, being brought by their owners voluntarily into a free State, thereby become legally free men, and entitled to protection as such in that State, although in the States whence they were brought this claim to freedom might not be

This procedure is often attempted to be justified as being in the nature of extradition, like that of fugitives from justice, by which persons, it is said, are delivered up to be carried to foreign countries without any right of judicial trial in the place where arrested. There is, however, not even a specious analogy. In cases of extradition, which is never demandable except under treaty between two na-recognized. Com. v. Aves, 18 Pick. In such a case, tions, the person accused and demanded is delivered up by the executive authority of the country wherein he is taken, to the executive authority of the nation calling for his delivery, for the sole purpose of being tried by the laws of the country in which the crime is alleged to have been committed. And any other disposition of him would be a violation of the treaty and of the law of nations, and just cause of war. He is not delivered up to the parties whom he is accused of injuring, nor whose property he is accused of having stolen, to be dealt with by them for its recovery, but to their Government, to be dealt with by the laws of their country.

Besides, in case of extradition, and after the warrant of delivery, and possession of the prisoner under it, so long as he remains here, he is entitled to the writ of habeas corpus to decide the question of his identity as the person accused, if that be denied. But under the commissioner's certificate, if the provisions of this statute are constitutional, that right or last hope is denied to the free man delivered under it, for it is thereby declared to be conclusive against "all molestation by any Court, Judge or Magistrate whatsoever."

Nor is the danger that a free man may be thus taken and hurried away into slavery in a summary

if the desire existed to reclaim the alleged slave here, ex parte proof taken in the State where the owner resided, of ownership and identity would be easy, and consistent with entire truth; and the escape could easily be established by persons who, knowing of the ownership, and identity, and subsequent entire disappearance of the prisoner without return, but without knowledge of the circumstance that the master had himself taken him into the free State, might thus innocently and unqualifiedly testify to the fact of escape. And as such ex parte testimony so taken in that State, is, by the statute, made conclusive of the fact of escape, the commissioner would be compelled to surrender him, although there might be persons at the hearing who could testify that the master had himself brought the prisoner into this State. And it is well known that many persons of this description are in various parts of this Commonwealth of great worth and respectability.

Another striking feature of this law is, that as if more emphatically to indicate a desire on the part of the government that the alleged fugitive should be found to be a slave rather than a free man, and to dispose the Commissioner to view the evidence with a favorable eye, he is to receive twice the amount

11

for his services if the determination be in favor of stitutionality. But if any class of citizens should be the claimant, instead of that to which he would be entitled upon setting the prisoner free.

The 60th section provides that "no person, while holding any office of honor, trust, or emolument, under the laws of this State, shall, in any capacity, take cognizance of any case, issue any warrant or other process, or grant any certificate" under the fugitive slave acts of 1793 and 1850; and that any justice of the peace thus offending shall suffer fine or imprisonment.

thought to require public aid in self defence from attempted oppression, it must, it is thought, be But however implicit may be the obedience which conceded that none would be more deserving than loyalty to law demands for judicial decisions, it can- this class of persons, who are exposed to a danger not be otherwise than that many within and without so peculiar to themselves, and of such fatal consethe halls of legislation must look upon these enact-quences if not provided for. ments as standing upon the utmost verge of constitutionality, if not beyond it; and as justifying all the protection which State legislation can constitutionally provide for the prevention of their abuse. The 58th and 59th sections of chapter 144 of the Revised Code of 1860 under the title Personal Liberty, authorize the Governor and Council to appoint Commissioners in each county whose duty it shall be when any person is arrested or seized, or in danger of being so, as a fugitive from service or labor, “to use all lawful means to protect and defend him, and secure to him a fair and impartial trial by jury, and the benefit of the provisions of that chapter:" and to defray all expenses of witnesses' fees, clerks' fees; and provide for payment to them of reasonable charges for their services as at-rights of the claimant under those acts; and the torneys and counsel.

It is not known that this provision has ever been objected to as unconstitutional, excepting in the general sweeping denunciations so often uttered; nor does it seem possible so to consider it, inasmuch as the Supreme Court of the United States have decided, as before shown, that no State can constitutionally be required to pass any laws in aid of the

United States cannot have any possible need of the aid of State officers to enforce the laws thereof. The commissioners were appointed to this duty in order to supply all emergencies arising from any want of judges or other magistrates, and are numerous enough for the purpose. The State, therefore, is clearly under no obligation to require any of its officers to render such aid, and it is not easy to perceive why its refusal to allow them to be so used, or its prohibition of such service are not only entirely constitutional, but strictly proper, within the bounds of a reasonable comity to other States. Its officers are appointed and paid exclusively for servi

It is difficult to perceive in these provisions anything unconstitutional, unless the using of all lawful means to protect an alleged fugitive from slavery, to secure to him a trial by jury, and the benefits of the act, is unconstitutional. Nor is it understood how a provision, seemingly so humane and harmless, can be construed into a legislative design to enable parties to prepare for any perilous contest, or to subject the treasury of the Commonwealth to control for the purpose of provoking a conflict, to result in physical force, as has been apprehended. If such were the design and tendency of these sections, they would be, undeniably, utterly unconstitutional inces to be rendered to her, and it is not unreasonable spirit and purpose, and should be repealed with unqualified reprobation.

It is believed, however, that they are not obnoxious to any such imputations. Their language is very plain, and speaks for itself, in a manner which all, who read, can understand. It appears to point, in the whole context, very directly and exclusively to legal processes, and appearances in them, as the only modes in which the commissioners are authorized to interfere. They are to be persons "learned in the law," not a particularly belligerent class of men; they are to use only “lawful means" for the protection of the fugitive, and to secure for him a trial by jury, and the benefits of the statute. The expenses of witnesses, clerks and officers' fees are those particularly enumerated as provided for; and the other expenses are those incurred in the protection and defence of the person so seized or arrested, together with the commissioners' own reasonable charges as attorneys and counsel.

How far any such precautions were reasonably thought necessary or expedient for protection of the very humble and generally poor persons most subjected to the probable application of the enactments of the Fugitive Slave Act, or may be now so considered, is not perhaps a question strictly within the purview of an inquiry into their con

in her to prohibit their entering upon others which may more or less conflict with her interests or the convictions and sentiments of her people. The clause imposing penalties upon justices of the peace, may however be considered objectionable, as seemingly vindictive, and tending to brand with disgrace a service rendered in aid of an asserted constitutional right of a fellow citizen, and may therefore be a very suitable subject for repeal in any arrangement that may be thought proper for the purposes of conciliation and national harmony; these penalties, however, for rendering any such service are not the fruits of the personal liberty bill of 1855, but have been on the statute book ever since the year 1843.

The 61st section provides that no "jail, prison or other place of confinement belonging to or used by the State or any county therein, shall be used for the detention of any person accused or convicted of an offence created by the Fugitive Slave Acts, or accused of resisting or obstructing any process issued under them, or of rescuing or attempting to rescue any person detained under their provisions, nor for the imprisonment of any person arrested on mesne process or execution in a suit for damages or penalties accruing in consequence of aid rendered to a fugitive from labor."

whose labor or service is not due to him within the meaning of those words in the Constitution of the United States, upon pretence that such person is so held, or has so escaped, or that his labor is so due, or with intent to subject him to such service or labor: and they are made crimes of a very highly penal character. Now, upon all the established principles of the common law regulating criminal jurisprudence, it would be essential, to constitute the crime, that the party offending should know that the person so claimed was not so held to service, or had not so escaped, or that his labor or service was not so due as alleged, even if the statute had contained no words expressing or implying the necessity of such knowledge to constiute the crime; but merely had described it as a removing or assisting in removing as a fugitive slave a person who in truth was not one.

For the same reasons stated in reference to the | of, not held to service or labor by the party claimpreceding section, there can be no complaint against ing him, or who has not escaped from him, or this enactment as unconstitutional. The State is under no obligation to furnish jails for the United States, and may unquestionably prohibit any such use of them. But as she does permit the United States to use them for all other purposes of arrest and imprisonment of persons detained or committed by authority of the Courts of the United States, the exception of these particular classes of cases must be considered as in its nature vindictive, and intended to throw embarrassment in the usual way of enforcing the laws of the United States; and its repeal seems to be called for as a reasonable part of any arrangement to be made as above suggested. The 62d section provides that whoever removes from the limits of this State, or assists in so remov ing, or comes into the State with the intention, of removing or assisting to remove, or procures or assists in procuring so to be removed, any person being in the peace thereof, who is not "held to ser vice or labor" by the party making claim, or who has not escaped from such party, or whose service or labor is not due to such party, within the mean-ors may be defeated," should be deemed acts of ing of those words in the Constitution of the United bankruptcy, it was decided by the English Court of States, "on the pretence that such person is so held King's Bench that although the act done had the efor has so escaped, or that his service or labor is so fect of defeating creditors, it was not sufficient withdue, or with the intent to subject him to such service out the intent, because, as the Court say "it is a or labor" shall be punished by a fine not less than principle of natural justice and of our law that acone thousand nor exceeding five thousand dollars, tus non facit reum nisi mens sit rea; the act and inand by imprisonment in the State prison not less tent must both concur to constitute crime." Taking than one nor more than five years. And that any the direct language of that statute, it would seem person sustaining wrong or injury by any proceed-plainly to have imported that the act would be ing punishable as aforesaid, may also maintain an enough, if done either with the intent or without it action and recover damages therefor. So in Regina v. Allday, 8 Car. and Payne 139, s

Thus in Fowler v. Paget, 7 T. R., 14, a case under the stat. 1, James 1, declaring certain acts done by a bankrupt "to the intent, or whereby his credit

It has been assumed that this provision applies to case of an indictment for writing without a new "persons who by mistake of fact, or misapprehen-stamp matter liable to stamp duty on paper on sion of law, and without any corrupt or wicked in- which similar matter had been previously written, tent make a claim under the laws and before the Lord Abinger says "The act of parliament does not authorities of the United States': and that this law say that an intent to deceive or defraud is essential subjects a person demanding a right under a law of to constitute the offence, but it is a serious question the U. S., to a fine of five thousand dollars and to whether a person doing this thing innocently and imprisonment in the State Prison for five years, as intending to pay the stamp duty, is liable to be the "penalty of an innocent failure to prove his transported: I am of opinion that to constitute this offence there must be a guilty mind. It is a marim older than the law of England, that a man is not guilty unless his mind is guilty.

case."

Many decisions to the same effect have been made in the Southern States upon statutes analogous to this which we are here considering.

If this be true, and a correct representation of the intent and legal purport of this section, it is certainly not only most obviously unconstitutional, but an outrage upon the civilization of the age, calling for instant, unqualified and indignant repeal. Such a construction, however, cannot be conced- In Kentucky, in the case Comth. v. Stout, 7 B. ed, but is, with due humility and reference, be Monroe 248, the Court of Appeals held that under lieved to be erroneous: nor was any such suspect- the statute against "removing or attempting to reed to be entertained by any one until after this in-move any person of color having a suit pending for quiry was entered upon. freedom," the indictment must not only allege the fact of such removal or attempt, but must aver that the defendant had knowledge of the pendency of the suit, in order to constitute the offence.

It is an elementary principle of the common law that the intent is of the essence of crime; and that no man can be lawfully convicted of one unless an intent to commit it be proved.

The crimes purporting to be created by this section are the removal from the State, or coming into the State with the intention of removing or assisting in removing, or procuring, or assisting in procuring such removal, of any person in the peace there

So, too, in the case Price v. Thornton, 10 Missouri Rep. 140, it was ruled by the Supreme Court that carrying off a slave, under the belief that he was i free, was not punishable by the act prohibiting the transportation of any slave out of the State without consent of the owner: although the statute

1

was in general terms of prohibition with no such sav-| commit an offence, there can be no transgresing.

sion."

If therefore the words, "on the pretence that such person is so held, or has so escaped, or that his labor is so due," had never been inserted in this section, it would appear, upon the authority of these decisions, that in order to constitute the offence intended by it, it must be alleged and proved that the defendant knew that the person so claimed was not so held to service, or had not so escaped, or that his labor was not so due; such knowledge being essential to any criminal intention.

So it was held by the Supreme Court of Tennessee in Gordon v. Farquhar, Peck 155, that a penalty imposed by statute on any person who should "entice or persuade any slave to absent himself from his owner's service" could not be recovered, if the defendant believed that the person in whose behalf he acted had a good legal or equitable title. And the same Court, in the subsequent case of Duncan v. the State, 7 Humphrey 148, which was an indictment for receiving and taking away a slave without a certificate of freedom, said: "It is a sacred principle of criminal jurisprudence that the intention to commit the crime is of the essence of the crime; and to hold that a man shall be held criminally responsible for an offence, of the commission of which he is ignorant at the time, would be intolerable tyranny.". The same doctrine has been held repeatedly by be "on the pretence that such person is so held, or the Supreme Court of this State.

The statute 1793, ch. 59, §15, imposed a fine on any one who "shall bring and leave any poor and indigent person in any town, wherein such pauper is not legally settled, knowing him to be poor and indigent;" the object being to prevent towns from being thus made chargeable with the expense of maintaining paupers. In the case Greenfield v. Cushman, 16 Mass. Rep., 393, of a claim under this statute, the jury were instructed and the full Court ruled, that the plaintiff must prove not only the defendant's knowledge of the pauper's poverty, but also an intent to impose a charge upon the town: although no such intent is mentioned as necessary to constitute the offence.

This doctrine was approved by the same Court in Deerfield v. Delano, 1 Pick., 469. See also Reed v. Davis, 8 Pick., 514, 517: Com'th v. Slack, 19 Pick., 304, 306.

But if this were otherwise, (which cannot be for a moment conceded,) it is not understood, by what process of reasoning the statute can be made to import the offence, unless committed with such knowledge, when the very words of it are, that to constitute it, the removal or attempt to remove, &c., must

has so escaped, or that his labor or service is so due, or with intent to subject him to such service or labor," which term pretence in common acceptation and lexicographic definition necessarily implies a false or fictitious claim. Its signification, as given by Worcester, is "a false ar gument, grounded upon fictitious postulates; act of pretending, or of showing, or alleging what is not real; unfounded claim: pretension; pretext; show; appearance; assumption; claim." It is humbly apprehended that it would be a novelty in criminal jurisprudence, for a Court to construe such a word in such connection in a penal statute, as consistent with an honest though unfounded representation or claim.

It may be suggested that although a false pretext may be necessary by force of the word "pretence," in reference to the class of cases, the description of which immediately precedes it, nevertheless the following terms, "or with intent to subject him to such It has been also recognized in the fullest manner service or labor," are not thus qualified; and thereby the Supreme Court of Maine, in Sanford v. Em-fore cover all cases whatsoever of removal or attempts ery, 2 Greenleaf Rep., 7, where Mellen, Ch. J., to remove, whether upon false pretext or othersays—“ Although the statute is silent as to the mo- wise. It might be sufficient to answer that upon tive with which a person may carry a pauper into a the principle above stated, and upon analotown in which he has not a legal settlement and gous cases of construction of penal statutes, the there leave him; still the unlawfulness of the inten-word "or" would be construed to mean "and" tion is of the essence of the act, and gives it the in this connection-to avoid the obvious absurdity character of an offence against the statute. On this of supposing that the Legislature, after particularly principle it has often been decided in actions describing certain offences as requiring a false prebrought to recover a penalty for sawing or dis- tence to constitute these crimes, should immediately posing of logs belonging to the plaintiff, that the add language applying to all cases whatsoever, penalty was not incurred if the defendant took and including these, and by which the necessity of any carried away the logs, really believing them to be such pretext was excluded. It is believed, however, his own." that the true construction of this section is, that it provides for two classes of cases-one, where a free man is seized to be removed under a false pretence that he is a slave already owing service, who has escaped: and the other where he is so seized with knowledge that he is a freeman, and the view of kidnapping and subjecting him to such labor and service.

During the present year, in the case of Commonwealth v. Presby, it was decided by the Supreme Court of Massachusetts, that the stat. of 1855, chap. 215, §33, which authorizes the arrest, without warrant, of "any person found in a state of intoxication," protected an officer who arrested a person nct in fact intoxicated, but whom he had reasonable cause to believe to be intoxicated-on the ground, as the Court said, quoting Blackstone and Hale, that "an unwarrantable act without a vicious will, is no crime at all;" and "where there is no will to

This enactment, it is believed, had especial reference to the class of persons above alluded to as particularly exposed to danger, under the provisions of the fugitive slave act; while at the same time em

bracing all attempts at kidnapping under the facilities which that act furnishes. And it certainly is not too severe a law for a crime so heinous. But as it has been considered susceptible of a construction so broad as to embrace persons innocently and honestly seeking the recovery of fugitive slaves, it certainly ought to be so amended, as to exclude the possibility of any such presumption. And with such amendment there seems to be no good reason why it should not remain on the statute book, or should give any reasonable pretext of offence any where.

The 63d section prohibits sheriffs, deputy sheriffs, jailors, constables or other officers of the State, or of the police of any city or town, or any district, county, city or town officer, or any officer or other member of the volunteer militia from the arresting, imprisoning, detaining or returning, or assisting in so doing, of any person, for the reason that he is claimed or adjudged to be a fugitive from service or labor,-under forfeiture of a fine of not less than one thousand and not exceeding two thousand dollass, and by imprisonment in the State prison not less than one nor more than two years.

The same remarks apply to this as to the sixtieth section, prohibiting officers of the State from taking cognizance of such case and issuing warrants, and to the sixty-first concerning the use of jails.

It is clearly not unconstitutional, because a State has a perfect right to assign such duties as she pleases, to officers appointed under her constitution and laws, and to limit the scope thereof at her pleasure. And

no good reason, it is believed, can be shown why State or county or town officers should be required to assist a claimant seeking to recover a fugitive from slavery, any more than to assist the government of the United States in the enforcement of its revenue

tions "shall not apply .o any act of military obedience and subordination performed by an officer or private of the militia."

These provisions seem to be very carefully drawn with the obvious purpose of confining the service prohibited, to that of aiding in the seizing, detention or rendition of a fugitive; and of excluding any other, as not being within such prohibition. This might be justly said to be their plain legal import, even if the words "for the reason that he is," had not been inserted. But the insertion of those words seems to place the matter beyond reasonable doubt; and to leave any service, for any other reason, entirely without the purview of the statute. Now the service of aiding in the seizure, detention or rendition of a fugitive from slavery for the reason that he is such, is one thing; and the service of aiding the municipal or other authorities in preventing or quelling a riot, feared or occasioned by the acts of officers or persons lawfully employed in such seizure, detention or rendition, is obviously one of another and entirely different and distinct character: and it is not perceived how they can be confounded, under any judicial application of these provisions.

The right of a Court, or Mayor, or other magistrate to call out the militia to aid in preventing or quelling riots for any and all cases, is not impaired by them; but is carefully preserved by the very explicit terms in which the offence is defined and limited; and it matters not whether the occasion of a riot or the apprehension of a riot be the arrest, detention, or rendition of a fugitive slave, or anything else; this power to invoke military aid is unchanged, and exists precisely as it did before.. Suppose a riot were feared or on foot, anticlaws, or to aid in the execution of any of its pro-ipated or occasioned by the odiousness of a revenu cesses, civil or criminal. The severe penalties, how-law, and the attempts of the officers of the United ever, imposed for any such violation of duty, have States to enforce it: no one will pretend that the the appearance of vindictive legislation, as intended to cast a stigma upon the enforcement of a clearly constitutional right, and, as such, would seem to be a proper subject of reconsideration and repeal, and any arrangement that may be made as above supposed.

It has been suggested that the including of any officer or other member of the volunteer militia in this section, applies to him in his individual, and not his military capacity only. Such a criticism seems clearly untenable from the context, which relates to persons only as acting officially; and from the obvious improbability of such application to any one class of private individuals, more than to all others.

calling out of the militia to prevent or subdue such a riot would be aiding in enforcing that law; no court or police magistrate has any power to call upon the militia to render such aid, though they do possess it to prevent or subdue riots feared or occasioned by reason of such enforcement. So here, while the militia are forbidden to take part in aiding in the seizure, &c., they are not prohibited from serving if called upon by legal authority to prevent or suppress any riotous violence which such seizures might occasion.

This law does not, therefore, if these views are as sound, as they are believed to be, "prevent the use of the militia for the protection of officers of the laws of the United States from lawless violence" in any case.

The sixty-fourth section provides that the volunteer militia shall not act in any manner in the seizure, de- It was designed, as is believed, to prevent the tention, or rendition of a person, for the reason that militia from volunteering in the service of aiding to he is claimed or adjudged to be a fugitive from ser- seize, detain, or return an alleged fugitive from vice or labor: and imposes a fine upon any one of slavery. And it is one thing to appear under legal fending of not less than one thousand, and not ex- orders for the purpose of putting down or preventceeding two thousand dollars, and imprisonment in ing a riot, which might be feared or take place bethe State prison for not less than one, nor more cause of the performance of that duty by persons than two years. And the sixty-fifth provides that authorized to perform it by the laws of the United the penalties prescribed by the two preceding sec-States; and quite another to volunteer to help those