"Does not your inquiry give too broad a meaning to the section? It certainly does not confer upon any citizen of a State, or of any other country, or any citizen of any other State, except the owner of slaves in another State by virtue of the laws thereof, the right to bring slaves into this State or detain them here under any circumstances as such. I understand your inquiry, therefore to mean, whether I am in favor of a repeal of the law which declares, in substance, that any person from the southern or south-western States, who may be travelling to or from or passing thrugh the State, may bring with him and take with him any person lawfully held by him in slavery in the State from whence he came, provided such slaves do not remain here more than nine months. The article of the constitution of the United States which bears upon the present question, declares that no person held to service or labor in one State, under the laws thereof, escaping to another State, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but such persons shall be delivered up on claim of the party to whom such service or labor may be due. I understand that, in the State of Massachusetts, this provision of the constitution has been decided by the courts not to include the case of a slave brought by his master into the State, and escaping thence. But the courts of law in this State have uniformly given a different construction to the same article of the constitution, and have always decided that it does embrace the case of a slave brought by his master into this State, and escaping from him here. Consequently, under this judicial construction of the constitution, and without, and in defiance of any law or regulation of this State, if the slave escape from his master in this State, he must be restored to him, when claimed at any time during his master's temporary sojournment within the State, whether that sojournment be six months, nine months, or longer. It is not for me to say that this decision is erroneous, nor is it for our legislature. Acting under its authority, they passed the law to which you object, for the purpose, not of conferring new powers or privileges on the slave-owner, but to prevent his abuse of that which the constitution of the United States, thus expounded, secures to him. The law, as I understand it, was intended to fix a period of time as a test of transient passage through, or temporary residence in the State, within the provisions of the constitution. The duration of nine months is not material in the question, and if it be unnecessarily long, may and ought to be abridged. But, if no such law existed, the right of the master (under the construction of the constitution before mentioned) would be indefinite, and the slave must be surrendered to him in all cases of travelling through, or passage to or from the State. If I have correctly apprehended the subject, this law is not one conferring a right upon any person to import slaves into the State, and hold them here as such; but is an attempt at restriction upon the constitutional right of the master; a qualification, or at least a definition of it, and is in favor of the slave. Its repeal, therefore, would have the effect to put in greater jeopardy the class of persons you propose to benefit by it. While the construction of the constitution adopted here is maintained, the law, it would seem, ought to remain upon our statute book, not as an encroachment upon the rights of man, but a protection for them.
"But, gentlemen, being desirous to be entirely candid in this communication, it is proper I should add, that I am not convinced it would be either wise, expedient or humane, to declare to our fellow-citizens of the southern and south-western States, that if they travel to or from, or pass through the State of New York, they shall not bring with them the attendants whom custom, or education, or habit, may have rendered necessary to them. I have not been able to discover any good object to be attained by such an act of inhospitality. It certainly can work no injury to us, nor can it be injurious to the unfortunate beings held in bondage, to permit them, once perhaps in their lives, and at most, on occasions few and far between, to visit a country where slavery is unknown. I can even conceive of benefits to the great cause of human liberty, from the cultivation of this intercourse with the South. I can imagine but one ground of objection, which is, that it may be regarded as an implication that this State sanctions slavery. If this objection were well grounded, I should at once condemn the law. But, in truth, the law does not imply any such sanction. The same statute which, in necessary obedience to the constitution of the United States as expounded, declares the exception, condemns, in the most clear and definite terms, all human bondage. I will not press the considerations flowing from the nature of our Union, and the mutual concessions on which it was founded, against the propriety of such an exclusion as your question contemplates, apparently for the purpose only of avoiding an implication not founded in fact, and which the history of our State so nobly contradicts. It is sufficient to say that such an exclusion could have no good effect practically, and would accomplish nothing in the great cause of human liberty."
These answers do not seem to have affected the election in any way. Mr. Seward was elected, each candidate receiving the full vote of his party. Since that time the act has been repealed, and no voice has yet been raised to restore it. Just and meritorious as were the answers of Messrs. Marcy and Seward in favor of sustaining the sojourning act, their voice in favor of its restoration would be still more so now. It was a measure in the very spirit of the constitution, and in the very nature of a union, and in full harmony with the spirit of concession, deference and good-will in which the constitution was founded. Several other States had acts to the same effect, and the temper of the people in all the free States was accordant. It was not until after the slavery question became a subject of political agitation, in the national legislature, that these acts were repealed, and this spirit destroyed. Political agitation has done all the mischief.
The act of Pennsylvania, of March 3d, 1847, besides repealing the slave sojournment act of 1780—(an act made in the time of Dr. Franklin, and which had been on her statute-book near seventy years), besides repealing her recent act of 1826, and besides forbidding the use of her prisons, and the intervention of her officers in the recovery of fugitive slaves—besides all this, went on to make positive enactments to prevent the exercise of the rights of forcible recaption of fugitive slaves, as regulated by the act of Congress, under the clause in the constitution; and for that purpose contained this section:
"That if any person or persons claiming any negro or mulatto, as fugitive from servitude or labor, shall, under any pretence of authority whatever, violently and tumultuously seize upon and carry away in a riotous, violent, and tumultuous manner, and so as to disturb and endanger the public peace, any negro or mulatto within this commonwealth, either with or without the intention of taking such negro or mulatto before any district or circuit judge, the person or persons so offending against the peace of this commonwealth, shall be deemed guilty of a misdemeanor; and on conviction thereof, shall be sentenced to pay a fine of not less than one hundred nor more than two thousand dollars; and, further, be confined in the county jail for any period not exceeding three months, at the discretion of the court."
The granting of the habeas corpus writ to any fugitive slave completed the enactments of this statute, which thus carried out, to the full, the ample intimations contained in its title, to wit: "An act to prevent kidnapping, preserve the public peace, prohibit the exercise of certain powers heretofore exercised by judges, justices of the peace, aldermen, and jailers in this commonwealth; and, to repeal certain slave laws." This act made a new starting-point in the anti-slavery movements North, as the resolutions of Mr. Calhoun, of the previous month, made a new starting-point in the pro-slavery movements in the South. The first led to the new fugitive slave recovery act of 1850—the other has led to the abrogation of the Missouri Compromise line; and, between the two, the state of things has been produced which now afflicts and distracts the country, and is working a sectional divorce of the States.
A citizen of Maryland, acting under the federal law of '93, in recapturing his slave in Pennsylvania, was prosecuted under the State act of 1826—convicted—and sentenced to its penalties. The constitutionality of this enactment was in vain plead in the Pennsylvania court; but her authorities acted in the spirit of deference and respect to the authorities of the Union, and concurred in an "agreed case," to be carried before the Supreme Court of the United States, to test the constitutionality of the Pennsylvania law. That court decided fully and promptly all the points in the case, and to the full vindication of all the rights of a slaveholder, under the recaption clause in the constitution. The points decided cover the whole ground, and, besides, show precisely in what particular the act of 1793 required to be amended, to make it work out its complete effect under the constitution, independent of all extrinsic aid. The points were these:
"The provisions of the act of 12th of 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 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, none is entertained by the court, that State magistrates may, if they choose, exercise that authority, unless forbid by State legislation." "The power of legislation in relation to fugitives from labor is exclusive in the national legislature." "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 exemption from State regulations and control, through however many States he may pass with the fugitive slaves in his possession in transitu to his domicil." "The act of the legislature of Pennsylvania, on which the indictment against Edward Prigg was founded, for carrying away a fugitive slave, 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." "The constitutionality of the act of Congress (1793), relating to fugitives from labor, has been affirmed by the adjudications of the State tribunals, and by those of the courts of the United States."
This decision of the Supreme Court—so clear and full—was further valuable in making visible to the legislative authority what was wanting to give efficacy to the act of 1793; it was nothing but to substitute federal commissioners for the State officers forbidden to act under it; and that substitution might have been accomplished in an amendatory bill of three or four lines—leaving all the rest of the act as it was. Unfortunately Congress did not limit itself to an amendment of the act of 1793; it made a new law—long and complex—and striking the public mind as a novelty. It was early in the session of 1849-'50 that the Judiciary Committee of the Senate reported a bill on the subject; it was a bill long and complex, and distasteful to all sides of the chamber, and lay upon the table six months untouched. It was taken up in the last weeks of a nine months' session, and substituted by another bill, still longer and more complex. This bill also was very distasteful to the Senate (the majority), and had the singular fate of being supported in its details, and passed into law, with less than a quorum of the body in its favor, and without ever receiving the full senatorial vote of the slave States. The material votes upon it, before it was passed, were on propositions to give the fugitive a jury trial, if he desired it, upon the question of his condition—free or slave; and upon the question of giving him the benefit of the writ of habeas corpus. The first of these propositions originated with Mr. Webster, but was offered in his absence by Mr. Dayton, of New Jersey. He (Mr. Webster) drew up a brief bill early in the session, to supply the defect found in the working of the act of '93; it was short and simple; but it contained a proviso in favor of a jury trial when the fugitive denied his servitude. That would have been about always; and this jury trial, besides being incompatible with the constitution, and contradictory to all cases of proceeding against fugitives, would have been pretty sure to have been fatal to the pursuer's claim; and certainly both expensive and troublesome to him. It was contrary to the act of 1793, and contrary to the whole established course of reclaiming fugitives, which is always to carry them back to the place from which they fled to be tried. Thus, if a man commits an offence in one country, and flies to another, he is carried back; so, if he flies from one State to another; and so in all the extradition treaties between foreign nations. All are carried back to the place from which they fled, the only condition being to establish the flight and the probable cause; and that in the case of fugitives from labor, as well as from justice, both of which classes are put together in the constitution of the United States, and in the fugitive act of 1793. The proposition was rejected by a vote of eleven to twenty-seven. The yeas were: Messrs. Davis of Massachusetts, Dayton, Dodge of Wisconsin, Greene, Hamlin, Phelps, Smith, Upham, Walker of Wisconsin, and Winthrop. The nays were: Messrs. Atchison, Badger, Barnwell, Bell, Benton, Berrien, Butler, Cass, Davis of Mississippi, Dawson, Dodge of Iowa, Downs, Houston, Jones of Iowa, King, Mangum, Mason, Morton, Pratt of Maryland, Rusk, Sebastian, Soulé, Sturgeon, Turney, Underwood, Wales, Yulee. The motion in favor of granting the benefit of the writ of habeas corpus to the fugitive was made by Mr. Winthrop, and rejected by the same vote of eleven yeas and twenty-seven nays. Other amendments were offered and disposed of, and the question coming on the passing of the bill, Mr. Cass, in speaking his own sentiments in favor of merely amending the act of 1793, also spoke the sentiments of many others, saying:
"When this subject was before the compromise committee, there was a general wish, and in that I fully concurred, that the main features of the act of 1793 upon this subject, so far as they were applicable, should be preserved, and that such changes as experience has shown to be necessary to a fair and just enforcement of the provisions of the constitution for the surrender of fugitive slaves, should be introduced by way of amendment. That law was approved by Washington, and has now been in force for sixty years, and lays down, among others, four general principles, to which I am prepared to adhere: 1. The right of the master to arrest his fugitive slave wherever he may find him. 2. His duty to carry him before a magistrate in the State where he is arrested, and that claim may be adjudged by him. 3. The duty of the magistrate to examine the claim, and to decide it, like other examining magistrates, without a jury, and then to commit him to the custody of the master. 4. The right of the master then to remove the slave to his residence. At the time this law was passed, every justice of the peace throughout the Union was required to execute the duties under it. Since then, as we all know, the Supreme Court has decided that justices of the peace cannot be called upon to execute this law, and the consequence is, that they have almost every where refused to do so. The master seeking his slave found his remedy a good one at the time, but now very ineffectual; and this defect is one that imperiously requires a remedy. And this remedy I am willing to provide, fairly and honestly, and to make such other provisions as may be proper and necessary. But I desire for myself that the original act should remain upon the statute book, and that the changes shown to be necessary should be made by way of amendment."
The vote on the passing of the bill was 27 to 12, the yeas being: Messrs. Atchison, Badger, Barnwell, Bell, Berrien, Butler, Davis of Miss., Dawson, Dodge of Iowa, Downs, Foote, Houston, Hunter, Jones of Iowa, King, Mangum, Mason, Pearce, Rusk, Sebastian, Soulé, Spruance, Sturgeon, Turney, Underwood, Wales, and Yulee. The nays were: Messrs. Baldwin, Bradbury, Cooper, Davis of Mass., Dayton, Dodge of Wisconsin, Greene of Rhode Island, Smith, Upham, Walker, and Winthrop. Above twenty senators did not vote at all upon the bill, of whom Mr. Benton was one. Nearly the whole of these twenty would have voted for an amendment to the act of 1793, supplying federal officers in place of the State officers who were to assist in its execution. Some three or four lines would have done that; but instead of this brief enactment to give effect to an ancient and well-known law, there was a long bill of ten sections, giving the aspect of a new law; and with such multiplied and complex provisions as to render the act inexecutable, except at a cost and trouble which would render the recovery of little or no value; and to be attended with an array and machinery which would excite disturbance, and scenes of force and violence, and render the law odious. It passed the House, and became a law, and has verified all the objections taken to it.