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Statutes, ina 1835, made special provision for the writ, and gave it whenever any person was restrained of his liberty, or held in duress, unless by virtue of some lawful process issued by competent authority; and if it should appear by the return of the writ that the defendant eloigned the plaintiff's body, the latter was to be entitled to a writ of capias in withernam to take the defendant's body.b
Part 3, tit. 4, ch. 111. The provision was so reported by the commissioners for the revision of the statute law of Massachusetts, but it was eventually struck out, and the writ de homine replegiando abolished. Revised Statutes of Massachusetts, sect. 38.
b The commissioners admitted that the writ of habeas corpus furnished so complete and effectual a remedy for all cases of unlawful imprisonment, that the other writ was seldom used. They thought, however, that it might be convenient and even necessary, when a person was seized without legal process, as an apprentice or servant, or as held to labor or service in another state, or as the principal for whom another is bail. This writ of personal replevin enabled the person under restraint to try his right to immediate personal liberty before a jury by presenting an issue in fact, and which the remedy under the writ of habeas corpus does not; and the legislature of Massachusetts, in 1837, revived in substance the provisions of the writ de homine replegiando, in a bill “ to restore the trial by jury on questions of personal freedom.” See on S. P. vol. i. 404. The legislature of Indiana, in 1824, and of Vermont and New Jersey, in 1837, and of Connecticut, in 1838, also provided the trial by jury if either party demanded it in the case of the claim of fugitives from labor. The doctrine in Jack v. Martin, seems therefore to be borne down in the non-slaveholding states by the force of legislative authority. But the decision of the supreme court of the United States, March 1, 1842, in the case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters' Rep. 539, has restored and established the construction given to the act of congress of 1793, in the case of Jack v. Martin. It declared that the act of congress of 1793 was constitutional, and passed in pursuance of an express provision in the constitution of the United States; it excluded all state legislation on the same subject; and that no state had a right to modify it by its own legislation, or impede the execution of any law of congress upon the subject of fugitive slaves. This decision renders void all statute regulations in the states on the subject. Several of the judges who were in the minority thought that the power of congress was not so exclusive, but that state legislation might act in aid of
In England, the regular consequence of personal liberty is said to be, that every Englishman may claim a right
the power to seize and recapture fugitive slaves. The decision in the case of Prigg v. The Commonwealth of Pennsylvania, has unintentionally thrown much difficulty and hazard in the way of efforts by the owners in the slave states to reclaim in the free states their fugitive slaves. That decision went to silence and render inoperative and void all provisions and aid in the free states in respect to the recovery of such slaves. The state governments are not content to remain passive and leave unembarrassed the free operation of the provision of the act of Congress. The supreme court of the United States in the case of Prigg admitted that state magistrates might, if they chose, and were not prohibited by state legislation, exercise the power of arrest given by the act of congress and in aid of it. But such permission is withdrawn by state laws in some of the states, and adjudged to be illegal. Thus in Ohio the act to prevent kidnapping (Swan's Statutes, p. 600) prohibited the arrest and carrying out of the state of fugitive slaves until they had been taken before a magistrate and proof of property exhibited. But the supreme court of that state in Richardson v. Beebe, (Law Reporter for November, 1846), held that the decision in Prigg rendered null and void all state aid and legislation to interfere with the owner's right of caption in person or by his agent, and that the state act had become inoperative and null. So the decision in the circuit court in the city of New York in the matter of George Kirk (Law Reporter for December, 1846) was to the same effect, and it was adjudged that the Revised Statute of New York (N. Y.R. S. 837, § 10) making provision on this subject in favor of the arrest and surrender of fugitive slaves concealed on board of a ves. sel without the knowledge of the captain, was unconstitutional and void. The court in Massachusetts in the case of the Commonwealth v. Tracy, (5 Metcalf, 536,) held that the states might secure their peace by causing fugitive slaves to be arrested and removed from their borders for their own security, provided it was not the object or purpose of the state provision indirectly to aid the owner of the slaves in recovering them. The statute of Pennsylvania in February, 1847, was more stringent in its opposition to all state aid and accommodation in the recovery of fugitive slaves. It is made highly penal for any state magistrate to take cognizance of the case of a fugitive slave, or grant any process or certificate in relation thereto. It is also made highly penal for any person claiming his fugitive slave to seize or attempt to seize or carry him away "in a violent, tumultuous or unreasonable manner, so as to disturb or endanger the public peace;" and that it should be unlawful and highly penal for any jailor or keeper of a prison to use any jail or prison for the detention of such fugitive slaves. to abide in his own country so long as he pleases, and is not to be driven from it, unless by the sentence of the
The judges are likewise authorized at all times to inquire, under a writ of habeas corpus, into the causes of the arrest or imprisonment of any human being. The Act of Curtesy of 1780, allowing the owners of slaves to bring in and retain them within the state in involuntary servitude for a transient period, is repealed. There are provisions of a similar effect in some of the other free states, and they amount in their consequences almost to a repeal of the act of Congress of February, 1793, and of sect. 2 of art 4, of the constitution of the United States, on which that act was founded. The owner of a fugitive slave would be apt to be deterred under such discouraging and hazardous circumstances, ftom undertaking to reclaim his fugitive slaves. The spirit of these provisions appears to be rather repuguant to the principle of compromise, and mutual and liberal concession, which dictated the section in question, and indeed pervaded every part of the constitution of the United States.
With respect to fugitives from justice from one state to another, charged with "treason, felony, or other crime,” the constitution of the United States (art. 4, sec. 2,) provides that they shall, on demand of the executive authority of the state from which they fled, be delivered up, to be removed to the state having jurisdiction of the crime. The act of congress of 12th Feb. 1793, ch. 7, sec. 1, has made provision for the case, and declared that the demand shall be accompanied with a copy of the indictment found, on an affidavit made before a magistrate, charging the person with having committed “treason, selony, or other crime," and certified by the governor or chief magistrate to be authentic; and in that case it is declared to be the duty of the executive magistrate of the state to which the person has fled, to cause the person to be arrested and secured, and notice thereof given, and the person then to be surrendered to the executive authority making the demand, or its agent. I am not aware that there has been any judicial opinion on this provision, and as it stands I should apprehend, that on the demand being made, and the documents exhibited, no discretion remained with the executive of the state to which the fugitive had fled, and that it was his duty to cause the fugitive to be arrested and surrendered. But if the executive, on whom the requisition is made, should think proper to exercise his discretion, and refuse to cause the fugitive to be arrested and surrendered, (as has been done in one or more instances,) I do not know of any power under the authority of the United States by which he could be coerced to perform the duty. Perhaps the act of congress may be considered as prescribing a duty, the performance of which it cannot enforce. The provision in the constitution of the United States is not however to be regarded as a null or
law prescribing exportation or banishment in the given case; or unless required abroad while in the military or naval service. Exportation for crimes rests entirely, in England, upon statute, for it was a punishment unknown to the common law. A statute under Elizabeth first inflicted banishment for offences. *Some of *33 our American constitutionsa have declared, that no person shall be liable to be transported out of the state for any offence committed within it. It would not be consistent with the spirit of that provision to prescribe banishment as a part of the punishment, whatever foreign place or asylum might be deemed suitable for the reception of convicts. In most of the states, no such constitutional restriction is imposed upon the discretion of the legislature; and in New York the governor is authorized to pardon upon such conditions as he may think proper.b Convicts have sometimes been pardoned under the condition of leaving the state in a given time, and not return
void provision, or resting on the mere will and pleasure of the state authorities. It is a substantive and essential grant of power by tho people of the United States to the government of the United States, and it partakes of a judicial character, and is fitly and constitutionally of judicial cognizance. The judicial power of the United States ex. tends to all cases in law and equity arising under the constitution, and the courts and judges of the United States within the state to which the fugitive has fled, are the fittest tribunals to be clothed with the exercise of this power, so that the claimant might, on due application with the requisite proof, cause the fugitive to be arrested and removed or surrendered by the marshal of the district, under regular judicial process, as by habeas corpus. To such a course of proceeding, and to such a source of power, I should rather apprehend the act of congress ought to have applied, and given facility and direction. Such a course of proceeding would be efficient and more safe for the fugitive, and more consistent with the orderly and customary administration of justice. It concerns the common interest and intercourse among the several states, and is a branch of international juris. prudence. * Constitutions of Vermont, Ohio, Illinois and Mississippi.
New York Revised Statutes, vol. ii. p. 745, sec. 21.
ing. This was equivalent, in its effect and operation, to a judicial sentence of exportation or banishment.
3. Writ of ne exeat. In England, the king, by the prerogative writ of ne exeat, may prohibit a subject from going abroad without license. But this prerogative is said to have been unknown to the common law, which, in the freedom of its spirit, allowed every man to depart the realm at his pleasure. The first invasion of this privilege, was by the constitutions of Clarendon, in the reign of Henry II.,a and they were understood to apply exclusively to the clergy, and prohibited them from leaving the kingdom without the king's license. In the magna charta of King John, every one was allowed to depart the kingdom, and return at his pleasure, except in time of war, and saving their faith due to the king. But this provision was omitted in the charter of Henry III. ; and in the reign of Edward I. it began to be considered necessary to have the king's license to go abroad; and it became at last to be the settled doctrine that no subject
possessed the right of quitting the kingdom without *34 the king's license; and prerogative *writs, which
were in substance the same as the ne exeat, became in use, requiring security of persons meditating a departure, that they should not leave the realm without the king's license. By the statute of 13 Eliz. ch. 3. a subject departing the realm without license under the great seal, forfeited his personal estate and the profits of his land. The prerogative of the crown, on this point, seems to be conceded; but until the king's proclamation, or a writ of ne exeat, has actually issued, it is understood that any Englishman may go beyond sea.
This writ of ne exeat has, in modern times, been ap
a Beame on the Writ of Ne Exeat, p. 2.