5. By the act of Sept. 18, 1850, 9 U S. Stat, at Large, 462, very full provision was made for the rendition of fugitive slaves. The marshals of the United States were re quired to arrest such slaves; the number of officers authorized to act as magistrates was much extended ; provision was made for proof taken by affidavit in the place from which the fugitive escaped; and severe penalties were imposed upon persons harboring or conceal ing such a slave, or rescuing or attempting to rescue him when arrested.
This act, however, and the 3d and 4th sec tions of the act of 1793 were repealed by the act of June 28, 1864, 13 U. S. Stat. at Large, 200. For some decisions as to the question of the interference between the acts of 1793 and 1850, see 5 McLean, C. C. 469; 13 How. 429.
6. In the practical application of the pro visions of the acts of 1793 and 1850 for the reclamation of fugitive slaves, it, has been held that the owner is clothed with authority in every state of the Union to seize and recapture his slave wherever he can do it without any breach of the peace or illegal violence, 16 Pet. 608 ; that he may arrest him on Sunday, in the night-time, or in the house of another if no breach of the peace is committed, Baldw. C. C. 577; that if the arrest be by agent of the owner, he must be authorized by written power of attorney executed and authenticated as required by the act, 6 McLean, C. C. 259, and if his au thority be demanded it should be shown, 3 McLean, C. C. 631 ; but he is not required to exhibit it to every one who may mingle in the crowd which obstructs him, 4 McLean, C. C. 402 that, if resisted by force in making
the arrest, the owner may use sufficient force to overcome the unlawful resistance offered, without being guilty of the offence of riot, 3 Am. Law Journ. 258 ; 7 Penn. Law Journ. 115; Baldw. C. C. 577 ; that whilst the ex amination is pending before the magistrate who has jurisdiction of the case, the party is in custody of the law, and may be imprisoned for safe-keeping, 2 Paine, C. C. 348; 4 Wash.
C. C. 461 ; 6 McLean, C. C. 355 ; that the act of Sept. 18, 1850, does not operate as a suspension of the writ of habeas corpus, 5 Opin. Attys. Genl. 254 ; but that writ cannot be used by state officers to defeat the juris diction acquifed by the federal authorities in such cases. 7 Cush. Mass. 285 ; 5 McLean, C. C. 92 ; 1 Blatchf. C. C. 635 ; 8 Ohio St. 599 ; Hurd, Hab. Corp. 202 ; 21 How. 506.
7. The provisions of the constitution and laws above cited extend only to cases where persons held to service or labor in one state or territory by the laws thereof escape into another. Hence, if the owner voluntarily takes his slave into such other state or terri tory, and the slave leaves him there or refuses to return, he cannot institute proceedings under those laws for his recovery. Ex party Simmons, 4 Wash. C. C. 396. And children, born in a state where slavery prevails, of a negro woman who is a fugitive slave, are not fugitive slaves or slaves who have escaped from service in another state, within the meaning of the constitution and acts of Con gress. 23 Ala. N. s. 155.