The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-11-19
TIL e r EPU BLIC.
From the Boston Courier.
The Constitutionality or the Fugitive Slave
Law.

Law.
The United States Marshal for this district hav-
ing had occasion to apply TO Benjamin X. Curtis,
ESQ., for his legal opinion to the CONSTITUTIONAL
ty Of the Fugitive Slave Law MIR Curtis has replied
by the following r
OPINION. res, ISL
have considered the question proposed TO me by
the Marshal Of the United States for the District Of
Massachusetts, which 10, whether warrant and
certificate from commissioner pursuant to the act
Of 1850, chap. CO. valid and efIectual in law TO
justify the marshal in doing the acts therein com
manded. II the law in question be unconstitutional
and void, 80 far as attempts to confer jurisdiction
on the commissioners, IL follows that warrants Is
sued by them of no validity and confer no pow
on the marshal My duty, therefore, requires
me to form and express 10 you an opinion ON the
question: whether the statute OF 1850. chap. 90, is
Unconstitutional and void, so far it attempts to
confer jurisdiction the commissioners to issue
warrants for the apprehension of alleged fugitves
from service, and to grant certificates pursuant to
that act. The grounds upon which have under
stood the law has been deemed by different indi
viduals unconstitutional, are
LIST. That it is an ex-post facto law
ID That 1t Is not IN accordance with the fourth
article OF the amendments Of the Constitution
3D. That 1t is in conflict with the seventh article
OF the amendments of the Constitution.
fta. That it contravenes the first section of the
third article of the Constitution.
9th. That it suspends the writ of habeas corpus
contrary TO the second paragraph of the ninth sec
ton of the first article.
The first Of these objections does not occasion diff
hculty In my mind. Perhaps the best definition of
an ex- post facto law is the given by the SUI
preme Court of the United States in Fletcher Us
Peck, 60 Cranch, 1859 can ex post facto law is
one which renders an act punishable in manner
IN winch IT was not punishable when II was com
nittcd.' The acts which form the subject ma err
Of this statute are the escape from one State of
person who service there, and his presence in
another State. and the thing to be done carry
him back. The acts are not made criminal, and
the tnlng TO DC done q leo a sem
ment IL Is remedial and not a penal process;
reception, whether by the act OF the party or
by the aid OF legal process, is a remedy granted
and not penalty inflicted 6 b. Com. a. hut
II 1t were otherwise these not made criini
nal by thus ia,c and the thing to be done, viz: the
extradition OF the fugitive, not by this law for
the nrst tune attached to these acts. On the
trary 1t Is the 18th article of the Constitution itself
which gives to these acts their legal character and
commands what is to be done in consequence. So
that II the extraditon could be viewed as penalty
and the escape as crime, it is crime created and
dthned by the Constitution, and not by this law
and punishment annexed by the former and not
by the latter. This law clothes the commissioners
with power to act, and it makes very importa mt
changes IN respect to the evidence which is TO be
used on the inquiry.
But believe it has never been supposed that the
legislature restrained by prohibition against
ex -post iacto laws from creating new tribunals to
administer existing criminal laws, and "a TO the
provisions respecting evidence, they concern only
tRe manner In which ICE jursd iction after it has
attached, shall be exerciseu; and with this you have
no concern the commissioner has jurisdc ton
TO Issue the warrant of arrest and grant the cert
cate, II s nothing TO you what rules of evidence e
administers. mention these views not because I
doubt the power OF Congress in this case 10 change
the rules OF evidence but because it is your case
and that only, which II is my duty to consider.
The objection to this law, that it conflicts with
the 4th article of the amendments which established
tue right OF the people TO be secure against unre-
sonable searches and seizures seems 10 me to have
no applC the IL hns kecr dots
upon great consideration, by the Supreme Court of
the United States in Priggs case, that, by force Of
the Constitution itself, the owner OF slave clothed
Win authority, Without any warrant, to seize and
reeapture his slave. And this ia in conformity with
decisions previously made in the highest courts If
several States; and among others, Of the State Of
massaehusetts, q Pick p H. Ii also deter
mined IN riggs case, upon reasoning which il
seems to impossible resist that Congress- has
the power by legislation to afford means 70 enforce
the delivery and secure the subsequent possession
Now, if the exercise of the right of recanti,n
without any warrant lie constitutional, think IL
would be difficult TO show that the exercise of THIS
same night by the aid OF warrant, issued in CON
formity with act Of Congress, designed TO afford
means y enlpree the dsllyesy ne, Constitutional
ance OF the doctrine of the common law which ~
hloils general warrants, and WAS designed 10 re-
strain inc government from making searches and
sSLures OF ,he persons, houses, papers and effects
oil TIE people OF the United States either uitho,,,
warrants, or upon warrants not con Formable 10 ta
terms OF this section But If the elias. Of n,r,1,s
now IN question are not embraced in the word -,
Ple' u they are not protected from seizure; H. on
the contrary, the Constitution itself haz cob(rrrd
the right 10 seize them without warrant h v-cts
be difncult to maintain that a seizure bY a v.,rsnt
u not allowed by the Constitution. In The case L.
lore referred to, in Pick. r., Mr. Justice Tbatci,
dissenied from the other judges because there w.
no warrant used. have not known of anv indr-,
woo thought the existence Of a warrant an oohi,SS
ton. " i WIZ
Indeed 1 see -,
would render IL improper for the cour, %, a. ss
missioner, 10 require the TO be brousyb ,yif,
Ihe very terms OF the 4th article Of the amendcnt
ine o1h section Oh the act says, the claimant ma
procure warrant from some one of the courts -
IL pTescribes no rule TO govern the action - -
court IN issuing the warrant II IL vvcre :, ~
doubtful whether the case be within this an or,oI
ti4ouiu suppose that any court would take care 10
nave the preliminary requisites made bv this ,r,5
Gle complied with. understand thew Sverc conn
phed with in the cases ia which usrrant. -. |
been issued here. ua'e
I'sl mas oeen repeatedly suggested that this rea
sOnlng proceeds on the assumption thai r. r.rs |
sought Tor is in fact fugitive from labor e.
Nhit D. when the warrant Issues stiII r,,n,i,,s, -
esiablshed This Is true; but il il none IN, L.
re- ~ az otner instances Of legal proceedings
Inc law affords remedy for a particular class al
cases, describing that class Of cases 90 az n, ti
guish II from all others. Whenever a., 80 - |
'ne progress OF tins remedy 10 taken before trial il
can only DC upon the sssumpt thai ,bc .,sa I " |
longs 10 that class Thus the law of tbis C,,,r,r
S'@l'h allows one who has legal claim 10 attach
inc property u him against whom the claim c, |
lsus' ~ does not allow who has no legal claim
70 attach another's property. Yet, from the IA
ture OF case, the attachment preccde. the trial
and u made upon an assumption that there IL H.
gai claim. 50, when a demand for the eItraditio,
Oi a person charged with crime In England IL
made bcrc, the warrant must issue upon an a.
sumption OF certain facts, which, upOn the eraui |
nation, may turn out not 90 exist
spprehend that If the law on is face dcacrihos |
ciass Of cases, and authorizes proccss onv in tboe
cases can never bean objection ~ the contribution.
atty Of that Law that, though il is valid when con
hned TO those cases, IL may, by accident or malice
be applied TO others, not within it, term, or mean
ingj which otbers, If included in the law would l
have rendered II, az TO those cases unconstit,i. /
uOnaL The obvious reason il, that tbcsc latter
csses are not embraced in the Law. and therefor, |
cannot Affect II. II would certainly be a strange /
argument sgsinst the constitutiouslitv Of a nsU
penal law That persons who did the act made pcnal
previous to its being made go, might by accident |
or malice, be punished under H. Yet il seems No /
me to be the same argument which have been adj. |
verting 10.
My opinion is, that this objection 10 the law IL
not tensble
Another objection 10 the constitutionality Of this
law IL drawn from the 7th article Of the amend
ments.