— page 11 —A slave belonging to a person in Virginia, escaped into this State; after which the owner died. It was held, that by U.S. Laws, 2 Cong. 2 Sess. c. 7, the slave might be seized without a warrant, in order to be taken before a judge &c., and that that statute was not unconstitutional; that the administrator of the deceased, being by the law of Virginia the person to whom the service of the slave was due, might by himself or his agent make such seizure, without taking out letters of administration here; and that an instrument under seal was not requisite in the appointment of such agent.
A scrawl, it seems, is not a seal.
This was an indictment for an assault and battery and false imprisonment committed on the body of a negro, named Randolph, in the town of New Bedford. A trial was had upon the general issue, and the allegations in the indictment were proved. The defence set up, and which was also proved, was, that Randolph was a slave, formerly the property of one M'Carty, of the State of Virginia, who was now deceased; Randolph having fled from his service in his lifetime. It was in evidence, that Randolph came to New Bedford four or five years ago, and that he had a dwelling-house there, which he had acquired and held as his own. The defendant had authority in writing (with a scrawl in the place of a seal) from one Mason, the administrator on the estate of M'Carty, and as Mason's agent and attorney, to seize and arrest Randolph, pursuant to U. S. Laws, 2 Cong. 2 Sess. c. 7, § 3, respecting persons escaping from the service of their masters, and to take him before a judge or magistrate, and then to remove him to the State of Virginia, from which he had fled. It was proved, that by the laws of Virginia the service of the slave, upon the decease of M'Carty, became due to Mason, the administrator, but it also appeared, or was admitted, that by the laws of Massachusetts Randolph did not owe service to any one; and further, that no letters of administration had been granted upon the estate of M'Carty within this commonwealth. The defendant, accompanied by a deputy sheriff, but without any warrant or other legal process, (though it appeared that application had been made by him to the District Judge of the
— page 12 —United States, who had decided that a warrant or other process was not authorized by the act of Congress, and was not necessary,) seized Randolph and kept him in confinement for an hour or more, intending to have an examination before a magistrate, pursuant to the act above mentioned.
A verdict was taken against the defendant; and it was agreed, that if the Court should determine that the act of Congress was not valid, or that the administrator had no power, according to the true construction of that act and of the laws of Virginia, as above mentioned, by himself, his agent, or attorney, to reclaim the slave, or that the letter of attorney was not sufficient to operate in Massachusetts, then the verdict should stand; otherwise that the defendant should be discharged.
Merrick, for the defendant. The act of Congress says, "the person to whom such labor or service may be due, his agent, or attorney, is hereby empowered to seize" &c. It does not specify any manner of appointing an agent, and if the administrator had given the defendant a verbal authority it would have been sufficient. On the supposition, however, that there should be an instrument under seal, it is contended that here is such an instrument. In Warren v. Lynch, 6 Johns. R. 239, Kent C. J. says, that a seal is an impression upon wax, or wafer, or some other tenacious substance capable of being impressed. But it is believed that this is in opposition to the general practice in the different States. Frequently impressions are made only on the paper itself. In Virginia, in the case of Jones v. Logwood, 1 Washington, 42, it was held, that a scrawl was a seal, before it was made so by statute. So in Pennsylvania. M'Dill's Lessee v. M'Dill, 1 Dallas, 65. [Wilde J. Then that is the common law there in opposition to the common law of England. In the District Court in Maine a stamp on the paper has been held to be a seal.] Whatever is used for the purpose of a seal, ought to be so considered. If this scrawl was a seal in Virginia, it ought to be sufficient in this case in this commonwealth.
The constitution of the United States, art. 4, § 2, provides, that "no person, held to service or labor in one State,
— page 13 —under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due." In the clause immediately preceding it is provided, that a fugitive from justice shall be delivered up on demand of the executive authority of the State from which he fled; but in the case of a slave, it appears from the passage above quoted, the party entitled to his service is the only person who is to make the claim. The constitution does not view a slave in the same light as a freeman, in several respects; for instance, in regard to the right of representation. So the clause against unreasonable searches and seizures does not protect a slave, and he may be seized without the intervention of a warrant. And where is the danger in allowing a master to seize his slave in another State? He infringes no right of such State, and such State cannot alter the rights of the master. If he seizes a freeman, he does it at his peril. He cannot plead a mistake in the person. He must prove his property fully. If Congress had made no law on the subject, the master would have a right to take his property, for this State could not divest him of it. This is indeed a great power; greater than we should be willing in Massachusetts to allow to any person; but slavery is tolerated by the constitution of the United States, to which we are a party. There is the same violation of principle in permitting it to exist in the southern states, as in permitting the owner of a slave to come here to seize him.
As to the other point, whether the administrator in Virginia could authorize any act to be done here, the leading case which will be brought against us, is that of Goodwin v. Jones, 3 Mass. R. 514. The question there was, simply, whether an administrator appointed in another State could prosecute an action here; and it was held that he could not. But in page 520, it is said, that "the granting of administration here cannot divest the foreign administrator of any rights already vested in him." The question then is, if here was a vested right; and the case finds, that the labor of the slave was due to the administrator. And it is no matter
— page 14 —whether he declares that he acts as administrator, or in his private capacity. Talmage v. Chapel, 16 Mass. R. 71. The right to the slave could not be vested in an administrator appointed here, because slavery is not recognised here. What could such an administrator do with him? Could he transport him to Virginia? If letters of administration must be taken out in this State, they must in every State through which the slave should pass. The service of this slave then being vested in the foreign administrator, and being incapable of being divested by our laws, and an administrator appointed here being incapable of having any interest in a slave, takes this case out of the one cited, of Goodwin v. Jones. Suppose that an administrator in Rhode Island should indorse a promissory note; it is apprehended that the indorsee might sue in our courts. Suppose that cattle should stray over the line from Rhode Island into this State, and should not be claimed by any person here; might not the administrator of the person to whom they belonged drive them back? The present case is similar.
Morton, (Attorney-General,) W. Baylies, and Parsons for the Commonwealth. The law as laid down by Kent C. J., in the case which has been cited, is in accordance with the law here and in England. There is but one English case (Adam v. Kerr, 1 Bos. & Pul. 360) where it was attempted to make a scrawl equivalent to a seal, and that case relates to a bond which was executed in Jamaica, according to the custom there, and which was intended to operate there. The letter of attorney in the present case was intended to operate here, and it ought to have been executed according to our laws. If it is said that a seal was not necessary, in order to constitute Griffith an agent, it is answered, that this instrument is the only evidence of his being an agent, and this instrument is a nullity. Where an act of so much importance is to be done in a foreign country, the solemnity of a seal ought to be required.
The act of Congress is unconstitutional. The constitution provides, that a person held to labor in one State, escaping into another, shall be delivered up "on claim of the party" &c. This does not authorize a seizure without some
— page 15 —legal process; which would manifestly be contrary to the fourth article of the amendments of the constitution, viz. "The right of the people to be secure in their persons, houses papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The writs of assistance, which caused so much excitement before the American Revolution, were unconstitutional, because they were general in their nature; but the proceedings in this case were worse than writs of assistance. This negro was domiciliated here, and was prima facie a freeman, and entitled to all the rights of a freeman, until it should have been proved in a legal manner that he was a slave. If the act of Congress is constitutional, a person may search for a negro in any citizen's house without a warrant. [Parker C. J. A case came before me in Middlesex, where a constable went into a citizen's house after a slave, without a warrant, and I held it to be a trespass. A law was once proposed in Congress, giving power to enter in such cases without a warrant, but it did not pass.]
The act of Congress says, that "the person to whom such labor may be due, his agent, or attorney," may seize &c.; it does not say, an administrator, his agent, or attorney &c., and being in derogation of the common law, it is to be construed strictly. It was passed too before the statute of Virginia which entitles the administrator to the service of a slave. But suppose the act to apply to an administrator, Mason was an administrator in Virginia, not in Massachusetts, and he had no right to intermeddle with effects of his intestate in this commonwealth. Stevens v. Gaylord, 11 Mass. R. 256. This negro has been compared to cattle which have strayed into this State. Suppose, however, that a person had put the cattle into his barn, (as here the slave was in his own house,) a foreign administrator would have no right to take them out of the barn. This slave is to be considered as a man asserting his freedom. The debt of service is to be ascertained like any other debt. There must be an ad-
— page 16 —judication that he owes service. The person claiming him must be clothed with the authority of an administrator in this State, before he can demand the adjudication. The remedy must be pursued in conformity to our laws. Pearsall v. Dwight, 2 Mass. R. 90. If the case is compared to a conversion after the appointment of an administrator, in which case the administrator may maintain trover in his private capacity, we say that here the conversion was in the lifetime of the intestate. It is asked, what could an administrator appointed here do with a slave. We answer, that the administrator should carry him back to Virginia. The owner could do no more. The owner could not sell slaves here. It is said then, that letters of administration must be taken out in every State through which the slave passes. But it is provided by the act of Congress, that the certificate of the magistrate shall be sufficient warrant for conveying him through the several States.
M. Morton, in reply, cited Austin's Administratrix v. Whitock's Executors, 1 Munf. 487; Long v. Ramsay, 1 Serg. & Rawle, 72; Meredith v. Hinsdale, 2 Caine's R. 362; and 1 Rev. Code of Virg. 112, § 36, to the point that a scrawl is a seal; and contended that the letter of attorney in a case like the present, ought to be made, as it was in this instance, according to the law of the place where it is executed. Pearsall v. Dwight, 2 Mass. R. 84; Byrne v. Crowninshield, 17 Mass. R. 55; Adam v. Kerr, 1 Bos. & Pul. 360.
The administrator claimed as being the person to whom the service of the slave was due. If the slave had been a horse which the administrator had found in the possession of some person here, who, upon demand made, refused to deliver it, the administrator would be obliged to sue in his own name. Bollard v. Spencer, 7 T. R. 354; (which overrules Cockerill v. Kynaston, 4 T. R. 277;) Shipman v. Thompson, Willes, 103; Bonafous v. Walker, 2 T. R. 126; Crawford v. Whittal, Doug. 4, note. If he must demand this slave in his own name, he might give authority to another person to demand him, and there can be no doubt that such person would have a right to seize the slave and carry him before a magistrate. This case comes expressly within the statute of the
— page 17 —United States. The statute must become inoperative, or it must be enforced in the mode attempted by the defendant. It is absurd to say that letters of administration should be taken out here, for by our laws a slave is not property. And if other property of the intestate had been found in this State which would authorize a grant of administration, the administrator would not be entitled to the service of the slave here. It is objected, that the act of Congress is unconstitutional. It has been on the statute-book thirty years, and the constitutionality of it, so far as my knowledge extends, has never before been called in question. The constitution was made for the citizens of the United States. It begins, "We, the people." This does not include slaves. The constitution recognises the right of holding slaves, and it does not secure their rights as citizens. If a warrant is required by the fourth article of the amendments, to seize a slave here, it must be equally necessary in Virginia. The relation of a slave to his owner may be compared to that between master and apprentice, parent and child, bail and principal; in which cases no warrant is necessary. I do not contend that a person may, without a warrant, break into the house of a citizen in order to seize a slave.
Parker C. J. delivered the opinion of a majority of the Court, in substance as follows. The first question is, whether the defendant was duly empowered as an agent, to reclaim the slave. We do not decide whether a scrawl is a seal, though probably it would not be so considered in this State.
— page 18 —But we think that a letter of attorney was not required, to communicate power to this agent. In general, a seal is not necessary, except to authorize the making of a sealed instrument. A common letter or a parol authority is sufficient for making many important contracts. The words of the statute are, "the person to whom such labor or service may be due, his agent, or attorney." If a letter of attorney were required, the statute would have used the word attorney only; but the word agent being also used serves to explain the intention of the legislature.
The question then is, whether Mason, having been duly appointed administrator under the laws of Virginia, had a right to come here himself and claim the slave; for the claim by his agent was the same as if made by himself. It has been decided, that a foreign administrator cannot come here to collect a debt; and if it was necessary to pursue the slave in the character of administrator, the authorities are clear against the defendant. But by the statute of the United States the person to whom the service is due may reclaim, and by the laws of Virginia an administrator is such person.
— page 19 —Taking both together, Mason might come here to reclaim, and it was not necessary that he should come in the character of an administrator.
This brings the case to a single point, whether the statute of the United States giving power to seize a slave without a warrant is constitutional. It is difficult in a case like this, for persons who are not inhabitants of slaveholding States, to prevent prejudice from having too strong an effect on their minds. We must reflect, however, that the constitution was made with some States in which it would not occur to the mind, to inquire whether slaves were property. It was a very serious question, when they came to make the constitution, what should be done with their slaves. They might have kept aloof from the constitution. That instrument was a compromise. It was a compact by which all are bound. We are to consider then what was the intention of the constitution. The words of it were used out of delicacy, so as not to offend some in the convention whose feelings were abhorrent to slavery; but we there entered into an agreement that slaves should be considered as property. Slavery would still have continued if no constitution had been made.
The constitution does not prescribe the mode of reclaiming a slave, but leaves it to be determined by Congress. It is very clear, that it was not intended that application should be made to the executive authority of the State. It is said that the act which Congress has passed on this subject, is contrary to the amendment of the constitution, securing the people in their persons and property against seizures &c., without a complaint upon oath. But all the parts of the instrument are to be taken together. It is very obvious that slaves are not parties to the constitution, and the amendment has relation to the parties.
But it is said, that when a seizure is made, it should be made conformably to our laws. This does not follow from the constitution, and the act of Congress says that the person to whom the service is due may seize &c. Whether the statute is a harsh one, is not for us to determine. But it is objected, that a person may in this summary manner seize
— page 20 —a freeman. It may be so, but this would be attended with mischievous consequences to the person making the seizure, and a habeas corpus would lie to obtain the release of the person seized. We do not perceive that the statute is unconstitutional, and we think that the defence is well made out.
Thacher J. dissenting. Though I agree to many things said by the Chief Justice, I do not entirely coincide with him. I am not disposed to question the constitutionality of the statute, but I think it intended that the seizures should be made in conformity to the laws of the several States, and not in violation of the laws of any one of them. The laws here do not recognise a slave. Every person here is a freeman, and entitled to all the privileges of a freeman; one of which is, to be secure against all seizures &c., without a complaint upon oath. I admit that in the southern States they may seize a slave without a warrant, because it is according to the laws of those States. But it does not follow that the same may be done here. I think it is the intention of the statute, that the seizure of a slave here shall be by process of law here. The complaint should not state that Randolph was a slave, for our law knows no such creature, but that he was a person held to service by the laws of Virginia. I admit that Congress might prescribe a new mode of apprehending a fugitive from service, which should supersede our law. In the case before the Court, the defendant, in my opinion, violated the law of our State.
The Chief Justice then remarked, that the construction now
— page 21 —given by the Court to this statute, had been adopted ever since the federal constitution went into operation, by Lowell and Davis, justices of the District Court of the United States.