# Unconstitutionality of the Fugitive Act/4

[ARGUMENT OF DIST. ATT'Y SHARPSTEIN.
WEDNESDAY, MAY 31—10 A. M.
Mr. Sharpstein replied to Mr. Paine's argument.—We give the synopsis of his argument—which consisted chiefly in reading authorities—as furnished by himself for the press.
Mr. Sharpstein said he had noticed in an evening paper that the name of Judge Miller was mentioned in connection with his own, in an article which related to these proceedings. In justice to Judge Miller he would say that he had held but one conversation with him within four weeks, and that was had since these proceedings were commenced, and that no allusion was made by either party to this proceeding, nor was the subject of Habeas Corpus mentioned by either the Judge or himself.
He then read the provisions of the Revised Statutes, and claimed that a State Judge or court could only obtain jurisdiction to hear, determine, remand, or discharge upon Habeas Corpus in cases where the application, writ and service were in strict conformity with the provisions of the Statute, and that the provisions of the common law were abrogated so far as they conflicted in any way with these Statutory provisions. That the appearance of parties could not be construed as a waiver. That the order of the court was either valid or absolutely void, R. S., Chap. 124, II Kent's Commentaries, 26. In support of the sufficiency of the warrant of commitment he cited 1 Hill, 377, Wharton's Precedents 502.
He then proceeded to notice the points raised by counsel upon the constitutionality of the Fugitive Slave Law. They were the same with those raised in the Simms case, by Mr. Rantoul, upon which the opinion of commissioner Curtis, and of the supreme court of Massachusetts had been delivered, and published in the Law Reporter, 1852. He submitted to the court that the first point raised by Mr. Rantonl, in the Simms case, might have more or less weight in that case, and yet have no force when applied to the present case. That the law might be unconstitutional in that respect, and still valid in other respects.—If so, the question whether the power which the commsissioner is called upon to exercise under the act of 1850 be proper or improper, does not arise in this case. Under the act of 1850 the commissioner acquires the power to hear and determine a case arising under that act, but his power to arrest and hold to bail offenders against the laws of the United States, is given by the act of 1835, 5 R. S. At Large, 516, and it is by virtue of the latter act, that he held this Relator to bail. But he would not urge this point, as he considered the constitutionality of the act of 1850 in this respect settled by the adjudications of the courts, and cited the opinion of the supreme court of Massachusetts in the Simms case.
In reply to the point raised by the counsel denying the power of congress to legislated upon this subject, he cited 1 Johns Rep. 67, 5 Serg. and Rawle 62, 12 Wend. 311, 2 Pick 11, 16 Pet. S. C. Rep. 539.
The act of 1793 was subject to all the objections raised against the act of 1850. Under that act Magistrates and Justices of the Peace were authorized to exercise all the power with which commissioners are now clothed, and the supreme court is the case of Prigg vs. Commonwealth of Pennsylvania, held that these Justices of the Peace might properly exercise those powers. But the Justice is not authorized to give a trial by jury, nor is the examination provided for in that act, free from any of the objections which are raised against the act of 1850. The judicial functions exercised by the comissioner in the extradition of fugitives from labor, are not essentially different from those exercised by the Executive of the State in the extradition of fugitives from justice. And it would be just as proper for the Executive of the State to reply that he would not deliver up a fugitive form justice, on the ground that the State demanding him would not give him a trial by jury, as for the State authorities to reply to the claim made for the delivery of a fugitive from labor, that the State from whence he fled, has not provided a trial by jury for him, or that he will be unable to obtain it if delivered up. It is no valid reply to either demand, and has just as much force when applied to the one case as it has when applied to the other. In conclusion he held that the decisions of the courts covered every question reaised by the Relator in this case, and that all parties are bound by them alike.
Mr. Watkins replied in a brief but forcible speech, sustaining the positions already taken by Mr. Paine.
Mr. Paine followed, reviwing the authorities cited by Mr. Sharpstein, and contending that instead of overthrowing the positions he had taken, they sustained them.
At the close of his remarks Justice Smith announced that he would hold the subject under advisement for one week, and then deliver his opinion and make an order in the case.]