By the Massachusetts Declaration of Rights, "each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws," and "every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries and wrongs which he may receive in his person, property or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws." The Legislature, in conformity to the spirit of the Constitution, and knowing that obscure and friendless inhabitants of the Commonwealth are most in danger of being unlawfully deprived of their freedom, have taken measures to secure to every person seized or in danger of being seized as a fugitive from service, a fair and impartial trial; and have also imposed an adequate punishment upon any one who shall undertake to remove from the State any person in the peace thereof and not a fugitive from his service, " on the pretence" that he is such a fugitive, "or with the intent to subject him" to slavery. By the well settled principles of the criminal law and the ordinary rules of construction of penal statutes, the unlawful intent must concur with the unlawful act in order to subject any individual to the penalties of this statute.

In 1842 the Supreme Court of the United States in the case of Prigg vs. The Commonwealth of Penn

sylvania, declared that "every State is perfectly competent and has the exclusive right to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases which its own policy and its own institutions either prohibit OR DISCOUNTENANCE.' And again the Court in the same case says, that "the States cannot be compelled to enforce them, [i. e. the provisions for the surrender of fugitives from labor,] and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the States are bound to provide means to carry into effect the duties of the National Government, nowhere delegated or intrusted to them by the Constitution." And again the Court says in allusion to the powers conferred upon State magistrates by the fugitive act of 1793, that as to the authority" conferred upon State magistrates, while a difference of opinion has existed and may exist still on the point in different States, whether State magistrates are bound to act under it, none is entertained by this Court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation."

This decision not only frees the individual States from all action in the matter, but also expressly recognizes the power of the States to prohibit action by their officers under the acts of Congress. Accordingly this Commonwealth soon afterwards, in 1843, enacted the statute popularly known as the "Latimer law," and

made it penal for any of its officers to aid in the capture or detention of a person claimed as a fugitive from service; and in 1855 it enlarged its legislation upon this subject, by the addition of more comprehensive and stringent provisions, framed in the same spirit and for the same purpose. But in 1858, in order to prevent any confusion or uncertainty in the minds. of the militia, which might arise from the idea of a divided duty, it imposed the responsibility for violations of these Statutes by the militia, solely upon their commanding officers, by providing that their prohibitions and penalties shall "not apply to any act of military obedience and subordination performed by an officer or private of the militia." The prohibitions thus addressed to the civil and military servants of the Commonwealth, of course do not and cannot apply to them in their private capacity as citizens of the United States.

It is certain that the legislation of Massachusetts is intended to be constitutional; and I am bound to declare my belief that it has proceeded upon principles of the strictest constitutionality. If, however, any party to any legal proceeding shall deem himself aggrieved by any thing found written in our Statutes, we are consoled by the knowledge that he has access to judicial tribunals which will bestow most intelligent and conscientious attention to his complaint. Whatever legal truth the judicial mind may perceive in this

or in any other regard, will be declared, because the judiciary exists not to make the law but to expound it

There can be no doubt that the first and most sacred duty of government is to protect the lives and liberties. of subjects. I believe that every person who is prima facie free, being in possesssion of his liberty and claiming title thereto; that every parent being in possession of his child; or guardian having custody of his minor ward, has a right to a judicial vindication of his rights in that regard, whenever and wherever they are practically drawn in question. And I do not think that a certificate issued to authorize a person from California to seize and carry away, as and for his fugitive apprentice, the child of a white inhabitant of Massachusetts, (which certificate may under the Fugitive Act of 1850, be issued without any previous notice to or hearing of the child or its parent,) can bar the right of such child or parent to a determination by a competent tribunal, of the right of the child to be retained in this community, from which perhaps he may never have departed since the hour of his birth: So, too, I deny that a certificate so issued to a person from Massachusetts, authorizing him to seize and carry away, as and for his fugitive apprentice, the slave of an inhabitant of Georgia, (which certificate may under the Fugitive Act of 1850 be issued without any previous notice to the master,) can bar the right of such master to a determination by a competent tribunal, of his right to retain his slave under the local law of

Georgia. And the trial may in either case be had in any competent forum within the jurisdiction where the person may thus be seized. The Constitution of the United States, while it provides for the surrender of persons charged with crime who have fled from one State into another, nevertheless, when it speaks of fugitives from labor, expressly restricts the authority to surrender, to the instances of those only who were held to service or labor and who did flee. And the right of a person to reclaim an alleged fugitive from his service must always be subordinate to the original, prior, indefeasible right of every freeman to his liberty, to its preservation, to its instant and constant assertion, and to all the defences of it which pertain to the institutions of the Common Law. The proceedings under the Fugitive Act of 1850 are not judicial, and they are not adapted to determine the questions of right which arise whenever a free man or the wrong man is innocently seized, or recourse is had to the arbitrary provisions of the Act itself by mere kidnappers, for nefarious purposes. On the propriety of exerting all the constitutional power which we possess (but none other than that,) for the protection of the liberties of the people of the Commonwealth against kidnappers, there can be no debate; and its necessity is illustrated by the surrender of persons claimed as fugitive slaves under the Act of 1850, who are known to have been free. In one case which I recall, the Commissioner denied to the accused person time to