CHAPTER III.
THE WRIT OF PERSONAL REPLEVIN (from Anthony Burns: A History by Charles Emery Stevens, 1856)
The attempt to release Burns from duress by violence having failed, steps were taken to accomplish the same object by legal process. For this purpose resort was had to the Writ of Personal Replevin. This writ is one of those great safeguards which every free state is careful to provide for protecting the liberty of its citizens. Less famous than the Writ of Habeas Corpus, it is in some respects more valuable than that, more efficacious in securing the end for which both were instituted, and not less worthy to be maintained in full operative vigor. To obtain the writ of habeas corpus, special application must be made to a judge on the bench or in chambers, and it rests with him to grant or refuse it at his option; often it is refused. The writ of replevin, on the other hand, issues of course and of right; the prisoner, or any personal friend, or any stranger acting in his behalf, may cause it to be made at pleasure. As in the case of ordinary writs, blank forms bearing the name of the Chief Justice abound; one of these is filled up by an attorney or some competent person, and placed in the hands of an officer, upon whom,
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from that moment, it becomes imperative. Under the habeas corpus writ, no trial by jury can be had; the judge alone hears the case, and sets the prisoner at liberty or remands him into custody, as he sees fit. The great benefit of the writ of replevin is, that it secures a trial by jury. The judge, under the habeas corpus, will be certain to remand the prisoner if he finds that he is legally held; he will not consider the question of the prisoner's inherent right to his liberty. But in the trial under the writ of replevin, the prisoner may demand a verdict upon the question whether be is righteously restrained of his liberty, whatever the legal aspects of the duress. 1
1 In Massachusetts, every person restrained of his liberty is now entitled, as of right and of course to the writ of habeas corpus. This privilege was secured by the act known as the "Personal Liberty Law," which was passed by two-thirds of both Houses over the veto of Governor Gardner, May 21, 1855. The extradition of Burns was the immediate cause of this legislation.
This great popular writ was one of the most ancient known to the common law of England. As such, it was introduced into the English colonies in America. In Massachusetts, it remained a part of the unwritten, or common law, from the earliest period until the year 1786, when its provisions were incorporated into a statute. For a period of half a century, this statute continued unchanged and in full force; then, by the enactment of the Revised Statutes in 1836, the Writ of Personal Replevin was abolished. By positive
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enactment it ceased to form a part, not only of the written, but also of the unwritten law of the Commonwealth. The watchful friends of liberty at once sounded the alarm, and in 1837 the Writ in all its pristine vigor was restored to the statute book, where it still remained at the time of Burns' arrest.
The first use of this instrument, for the relief of Burns, was made on the day following his arrest. A writ of replevin was at that time made by Seth Webb, Jr., and delivered to Coroner Charles Smith, who forthwith served it upon the United States Marshal. The answer of the latter was a quiet refusal to comply with the mandate of the writ, on the ground that he held Burns by legal process. No effort was made to enforce compliance; the writ was returned into court with the proper indorsement; and thus, for the moment, the matter rested.
On Sunday, May twenty-eighth, the subject was revived at an informal meeting of certain members of the Boston Board of Aldermen, held for the purpose at the office of the Chief of Police, who was also present. A rescue of Burns from the custody of the Marshal before the Commissioner's decision should be pronounced, they did not propose. But it was thought that after the decision, an interval of time might occur when a writ of replevin could be served without involving a conflict with the United States officers. Coroner Smith was summoned to attend the conference.
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On appearing, he was asked if he would undertake to serve the writ at such a time as the one mentioned. With some hesitation he agreed to do so, provided the sanction of the Governor, Attorney-General, and City Solicitor of Boston were first obtained. This answer was thought satisfactory and the conference ended. On the next day, the Coroner and Alderman Dunham sought an interview on the subject with City Solicitor Hillard. The Solicitor gave it as his opinion that no such interval of time as they contemplated would occur, and strongly advised them against proceeding with the writ.
While this was passing, two citizens of Boston, Samuel E. Sewall and Henry I. Bowditch, were moving in another direction and with a bolder purpose. Mr. Sewall was a lineal descendant of that ancient Chief Justice of Massachusetts who, having been betrayed by the spirit of the age into giving his judicial sanction to the prosecutions for witchcraft, soon vindicated his innate nobleness by a solemn act of repentance in a public assembly of his fellow-citizens. The finer qualities of this Puritan judge re-appeared in Mr. Sewall. A man of pure and upright life, an eminent lawyer, a wise and incorruptible friend of public liberty, he naturally rose to be a conspicious character, and was more than once honored with the nomination and support of his party for the office of Governor. Mr. Bowditch was the son of America's most illustrious mathematician, the
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interpreter of Laplace. He was a physician of eminence, and, like Mr. Sewall, uncompromisingly hostile to the fugitive slave act.
It was the desire of these gentlemen to have a writ of replevin served with instant dispatch; they were quite prepared to deliver Burns from duress without waiting for the Commissioner's decision. But there was a serious difficulty in the way. Burns was in the custody of an officer who had expressed a determination to resist the state process, and who had a strong civil and military force to back him. It was plain that if the writ was to be efficiently served, if Burns was to be taken out of the Marshal's hands, it could only be done by the aid of a force sufficient to overcome that which he had at his command. Provided such a force were furnished him, Coroner Smith expressed his readiness to serve the writ and release the prisoner. The necessity of this condition was apparent, and Mr. Sewall with his coadjutor proceeded to take measures for obtaining the required aid.
Under the circumstances, the ordinary posse comitatus was out of the question; for it was not to be expected that an undisciplined throng of civilians would be able to make head against the serried ranks and balls and bayonets of the Marshal's United States troops. The two gentlemen, therefore, repaired to the State House for the purpose of obtaining, if possible, a military force through the intervention of the Governor, Emory Washburn. They met him, by chance, in the office of
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the Secretary of State, and at once made known the object of their visit. Without informing him that a writ of replevin had actually been issued, they put the case by supposition. A coroner of the city, they said, was ready to undertake the service of such a writ, provided he could be sustained by a proper force. They asked, therefore, whether the Governor could not order out a sufficient number of the militia to enable him to do so. In reply, the Governor first reminded them of the singular spectacle which would be presented to the world if he were to comply with the request. The militia were already under arms, by order of the Mayor of Boston, to keep the peace and, suppress any attempt, by a popular outbreak, to wrest Burns from the custody of the United States Marshal: was it seemly for the Governor, he inquired, to command the same militia to aid one of the state officers in taking him by force from the same custody? Aside from this view of the case, he said that while he was willing to do anything in his power to aid their wishes, he thought that the officer to whom the writ might be committed, was invested by the statute with all necessary power to summon to his aid the posse comitatus. But he doubted whether he had authority to order out troops to aid in serving a particular precept, unless a case of threatened violence or actual breach of the peace could be made out, sufficient to call into exercise the general power confided to the Commander-in- chief for such an exigency. He then
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read the provisions of the statute upon the subject, and asked Mr. Sewall whether he, as a lawyer, considered that the Governor had authority to call out troops for the express purpose of executing the writ in question. To this Mr. Sewall replied that he had looked at the matter, himself, and had great doubts if the Governor had the authority. But he added that in his view the fugitive slave act was unconstitutional, and that, consequently, the detention of Burns by the Marshal was unlawful. In answer to this, the Governor said, that whatever might be his private opinion on that point, he had been taught to regard the judiciary as the interpreters of the law; that he understood the courts to hold the law to be constitutional; and that therefore he felt bound, in his official relations, to regard it as such.
Mr. Sewall now raised a different question. By the statute providing for the writ of replevin, no person could enjoy its benefit who was "in the custody of a public officer of the law by the force of a lawful warrant or other process, civil or criminal, issued by a court of competent jurisdiction." Burns was in the custody of the United States Marshal by virtue of a Commissioner's warrant. Mr. Sewall did not regard the Commissioner as a court of competent jurisdiction, and consequently held that Burns was entitled to the writ. But the Governor, planting himself on the decisions of the Supreme Court, held that the warrant was lawful, and that Burns could not be
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properly interfered with while in the Marshal's custody. Yielding for the moment to this view of the case, Mr. Sewall now inquired if the Governor would order out troops to aid in serving the writ, after Burns, by virtue of the Commissioner's certificate, should have passed out of the Marshal's custody and before he should have been removed from the State? To this question, which was substantially the same as that which Coroner Smith had propounded to the City Solicitor, it does not appear that the Governor returned any specific answer, nor was it important that he should. Mr. Sewall was satisfied, on a subsequent examination of the fugitive slave act, that the Commissioner's certificate would not give Suttle the immediate possession of Burns, but that he would remain in the custody of the Marshal without any interval until he should be surrendered in Virginia. No opportunity, therefore, would be afforded for the writ upon Suttle within the jurisdiction of Massachusetts.
Having delivered his own views on the subject, the Governor proposed that Mr. Sewall and his coadjutor should lay the case before the Attorney General, John H. Clifford, the legal adviser of the Executive. If that officer were able to suggest any lawful mode in which he could aid in serving the writ, he was ready to adopt it. Here the interview ended. Mr. Sewall at once sought the Attorney-General; but, not finding him readily, desisted
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from further pursuit, in the conviction that his opinion would be of an adverse character.1
1 A little later in the day, John A. Andrew, a member of the Suffolk Bar, waited on the Governor for the same purpose, but on learning of the interview with the other gentlemen and its result, he did not press the matter. The Governor received no other application of any sort on the subject.
The conduct of the Governor in this affair was subjected, at the time, to severe animadversion. But those who blamed him most were least informed respecting the facts. Mr. Sewall, who, as one of the parties, was familiar with all the circumstances, acquitted and justified him. With the opinions which the Governor entertained respecting his constitutional obligations, there was, Mr. Sewall thought, no other course for him to pursue. There, however, the justification stopped. The conduct might be justified by the opinions of the Governor, but the opinions themselves were condemned.
It has been seen that the Governor felt bound, whatever his private opinions or predilections, to defer to the authority of the Supreme Court. A more comprehensive survey of the action of that Court would have furnished him with equal authority for an opposite line of conduct. The particular decision upon which he rested was that in the case of Sims. But there was an earlier judgment of the Court, which, in the opinion of eminent jurists, furnished ample sanction for the application of the writ of replevin to persons in
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precisely the predicament of Burns. This opinion was directly connected with the restoration of the writ of personal replevin to the statute book, in 1837. The committee of the legislature which reported the bill restoring the writ, also made an elaborate report on the general subject of the trial by jury in questions of personal freedom. In this report the opinion of the Court was cited, and its vital bearing upon the question, whether a person arrested as a fugitive slave was entitled to the writ of replevin, was illustrated in the comments of the committee. Very pertinently, the-opinion had its origin in the arrest of a fugitive slave. One, Griffith, had been indicted for an assault on a negro named Randolph. In his defence, he alleged that Randolph was his slave, and that, by virtue of the fugitive slave law of 1793, he had a right to seize him. In their reply, the prosecuting officers presented arguments against the validity of that law. The Chief Justice, Parker, in giving his opinion, thus disposed of them: "It is said that the act which is 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 on oath, &c. It is very obvious that slaves are not parties to the Constitution, and the amendment has relation to the parties. * * * * But it is objected that a person may, in this summary manner, seize a freeman. It may be so, but it would be attended with mischievous consequences to the person making the seizure, and a habeas corpus would lie to obtain the release of the
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person seized." And if a habeas corpus, said the committee, then of course the concurrent remedies, including the writ of personal replevin.
"The principle here stated," observed the committee, "when carried out relieves the act of Congress (the act of 1793) of all its obnoxious features, and places the question, under the law, precisely where the committee would have placed it, under the constitution, without the law. It holds that the proceedings are constitutional as to slaves, and unconstitutional as to freemen, and gives the person seized, the right to try the question as to his character, by any suitable independent process. And this principle must extend to his situation, either before or after the certificate, for the jurisdiction of the magistrate, upon the same reasoning, must be special and limited, depending entirely for its foundation upon the fact whether the person so seized be a slave; for if he be not, the whole proceedings are void, as against the express provisions of the constitution. It makes, then, the claimant act at his peril throughout, and gives the person seized an opportunity to try, in another form, the applicability of the process to him, and that, too, wherever he chooses."
The committee therefore expressed the opinion that "whether the law be considered unconstitutional on the one hand, or valid on the other, upon the construction recognized by the Supreme Court of the Commonwealth, the same result must be arrived at. In either case, a person seized under the act of Congress, before or after certificate given,
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may have an independent process, under which he can try his right to the character of a freeman." In concluding their report, the committee remarked, in view of the fact that the writ of personal replevin might be used by persons arrested as fugitive slaves in the investigation of their claim to freedom, that "they looked to that use of the writ as one of its just and legitimate offices." 1
1 Report of the Judiciary Committee "on the trial by jury in questions of personal freedom" made to the Massachusetts House of Representatives, March 27, 1837. The author of the report was James C. Alvord.
The court's opinion and the committee's interpretation of it had reference to the fugitive slave act of 1793. But they were equally applicable to the fugitive slave act of 1850, for they asserted the general principle that no act of Congress could deprive a person of his constitutional right to try the question of his freedom. Accepting this exposition, planting himself by the side, deferring to the venerable authority, of Chief Justice Parker and his associates on the Supreme Bench, the Governor might have said to Mr. Sewall: "Burns is entitled by the constitution and the law to the writ of personal replevin. Make your writ and bid the officer serve it upon the United States Marshal forthwith. If he refuses to obey, let the officer summon the posse comitatus and enforce the service. If the Marshal resists with the military force under his command, the case will have arisen in which it becomes the duty of the Governor by law to act. Then make your application
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to me, and I will call out troops to aid in enforcing the writ." 1
1 The whole argument may be briefly stated thus: 1. The fugitive slave acts of 1793 and 1850 are commensurate as to "competent jurisdiction." 2. The constitutionality of both has been affirmed by the Supreme Court in two different decisions. 3. The right of the person seized, to an independent trial of the question of his character, is affirmed in the first decision and not denied in the second, 4. The writ of personal replevin was provided by the Commonwealth expressly to secure such a trial; therefore, 5. The affirmation of the constitutionality of the fugitive slave act of 1850 is no bar to the use of the writ of personal replevin for the purpose of determining the character of the person seized as a slave.
The interview with the Governor took place on Monday, the twenty-ninth. Nothing further was done respecting the writ until the following Wednesday. By that time the prisoner's case had assumed an unexpectedly favorable aspect. It was anticipated that the Commissioner would set him at liberty. In such a case threats had been made that Suttle would seize him again without warrant and carry him off.2
2 Suttle had resolved, under the advice of District Attorney Hallett, if the Commissioner's decision should be adverse to his claim, to seize Burns by force, remove him from the State, and for justification of the act rely on his ability to prove ownership after getting back to Virginia. This purpose was announced by Suttle, on the morning of June 1, to a circle of his southern friends at the Revere House, and in the hearing of the Rev. M. D. Conway, of Washington, who subsequently stated the fact to Charles M. Ellis, Esq., of Boston, and the Rev. George E. Ellis, of Charlestown.
To meet this contingency (and no other), a writ of replevin was made on that day and placed in the hands of Coroner Smith. The contingency did not occur, and the writ remained as waste paper in the officer's possession.