The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-11-19

all the departments Of this Government have been
mistaken concerning this very interesting and i'm
portant subject have seen, and as is my duty to
you, have carefully considered, some ingenious
and iorcbe suggestions tending TO prove this mis-
take but. on reflection, think if this were new
question il could not be shown that the law contra
| venes this article of the Constitution.
At the time the Constitution was formed, there
existed in the jurisprudence of all the States (aside
from suits in equity and admiralty the trial OF
crimes, the trial of rights of persons and property
between party and party, and Judicial Inquiries,
summarily made designed to accomplish some
limited and special object but not TO try and fnal-
| ly settle the right in condensation.
The Constitution, as originally adopted, con-
tanned clause securing the right Of trial by jury
only in the trial of crimes. Its silence respecting
the trial by jury in suits at the common law, and
the appellate jurisdiction given to the Sopreme
Court, 'both to law and fact, were laid hold OF
for its rejection. and, after its adoption,
formed no inconsderable part OF the grounds OF
opposition to the new government, a MarshalPs
Life Of Washington, 2d5, 2lO) To obvate these
establishing further guards for the citizen in cr''
nal prosecutions and the seventh art -
trial by jury in suits at corr" law We're adontsd
a. nv mat ii has ever been supposed by
any oo mat these two articles had any reference
70 the third class of judicial inquiries abovemen
toned That justices of the peace in the District
Oh Columbia may commit to prison person who,
on summary inquiry before them, may appear to
be probably guilty Of offence, and thus deprive
him for time Of his liberty that the same thing
may be done by magistrates in the States for Of
fences against the laws of the United States; that
| the Executive authority Of any State to which a
person shall have fled, on the requisiton of the
Governor of another State whence he fled, and the
production OF an affidavit made before magistrate,
and properly certified may deliver up the person
charged with crime by such affidavit; that the
Government OF the United States, through its ma
elstrates, may apprehend fugitive from foreign
country, with which treaty To that effect exists,
and, upon finding by such magistrate, may de-
liver him up TO be transported to the country
whence he fled, suppose one has doubted And
if this be 50, then it would follow that be-
sides the trial of crimes and cults at the common
law, in both which jury must intervene, there is a
third class Of udcihl inquiries and Executive action
thereon, in which the Constitution does not require
ajury. Under this view, two questions arise:
lst whether, In point OF fact, the proceeding be-
fore the commissioner, under the statute Of 1885,
Judicial inquiry, to be summarily made, designed
TO accomplish some special and limited object but
not 10 try and finally settle the right in contesta
ton, and
3D. Whether, if it be SO, Congress had the con-
stitutional right to adopt and apply such a pro-
ceedlng to the case of fugitive from service, and
grant the aid Of the Erscutiee po,cer of the U,itsd
States upon the result Of such summary proceeding.
This first question must be answered by an ex-
animation OF the act in question, and the act of
li93 which s in materid which the act Of $50
wac intended TO amend, and to which il is supple
mentary. The act Of 1893, in the first and second
sections makes provisions for fugitves from justice,
and empowers the agent appointed to recover the
fugitive " to transport him her to the State or Ter
ritory from ,chich he she shall haze fed The
third and fourth sections have reference fugtives
from service, and enact that the certificate given
to the claimant his agent 90 shall be sufficient
warrant for remoring the said fugitips from labor 10
The State Territory from ,rhich he or she fled Ii
TO me that the object of each of these sets of
provisions was simply extradition. certificate,
o~fu hua
has no definite legal effect necessarily attached 10
1t by the general principles of Jurisprudence, and
it must have effect another, according to the
enactments which provide for it.
Whatever effect the statute gives to it. il NAV
possess--but nothing beyond this. And when this
statute says II shall warrant removal 1t TO
me TO be averystrained Interpretation which should
attribute 10 II any other effect i conclude then
that the sole purpose Of this law was ertradition
II so, there ID certainly presumption the outset
that the act Of 1850, made to amend this law had
the same object In view perceive nothing in this
act oil 1850 which leads 10 the conclusion that any
thing beyond this was intended. The 9th section
declares that the certificates 'shall be conclusive OF
the night OF the person or persons in whose favor
granted TO remove such fugitive TO the State or Ter
ritory from which he escaped and shall preycntall
moicstation Of such person or persons by any pro-
cess issued by any court, Judge, ma gistrate, or
other person whomsoever."
The whole OF this, taken together, think, means
that Tor the purpose OF removal, the certificate sba
be conclusive, and no court, &c. shall do any thing
to prevent such removal. But, having declared
and limited object. follows that it is not
conclusive Tor any other, for il derives all its effect
from the enactment, and here the enactment stona
And this conclusion ia made necessary 10 nv mind
when md that the fact of service brins due and
,he iact Oh escape from service may be conclusive
ly proved before the gstrnte for the purpose Of
obtaining the certificate, simply by the production
OF the record OF court in the State whence the f-
give escaped, which record IL 10 be made on er
p~te testimony. To attribute 10 Congress an in.
tention TO allow the claimant 10 make proof bv or.
pare testimony Of two out Of three of the material
poins, TO make this proof conclusive for the purs
pose Of obtaining the certificate and then to make
the summary hearing operate as a trial settlin,,
the right, seems 10 me not 10 be warranted hv anv
thing found in this law I am led by the who'll
structure OF the act, well as by detailed exam
NATION oil the language of particular parts of H. 10
clear opinion, that the proceeding before the
eoniiniSsloner rs summary Judicial inquiry, ter
minaung IN special and Limited object, viz: eX.
tradition, and is not trial and final settlemcnt of
the right in contostaton.
IL Is true the laws OF the United States mako nd
provision ior any further trial Neither do they in
any Gaze OF entadition. The Parliament of Great
Britain may suspend the habcas corpus and keen
imprsoned without trial person given up or pass
a bill OF attsinder and put him to death Indeed,
from the very nature OF the case the person given
up u TO be tired by the laws the State or country
10 which he IL restored and il IL for those law,
make provision for that trial do not mean 10 saw
that the government which makes e,tradition mar
not make conditions. Bot il seems 20 me no argu,
ment, that these proceedings were designed for a |
trial OF the night, be drawn from the fact that
no conditions for future trial are made The only
Just inference Is, that in this as in other cases Of
eKiradtion, the United States had confidence that
ustce would be done under the laws Of the State 10
which the fugitive should be restored
IT, then, in point Of fact, this proceeding before
the commissioner IL summary, designed only for a
particular and limited object and does not try or
hnaly settle the right in contestaton the INJURY
still remains, whether Congress had the constit1
uonh right 10 grant the aid Of the Executive power
OF the United states upon the result Of such inquiry
The Constitution declares that, upon claim being |
made by the party to whom the service IL due the
fugitive shall be given up. The Supreme Court |
has decided that Congress may legislate in aid of
TIC execution Of this requstiOn Of the Constitution
u is not said by the Constitution hoc this claim
shall be made II is, therefore, subject Of lerisa.
lion hSto Il shall DO made II IL not said ho,r il shall
be determined; and tis therefore, left 70 eoslation
bow II shall be determined. The legislation must 4
conform itself 10 any constitutional restrict If
my such arc 70 be found but where can they be /
ound, u will not be enough say that the personal
liberty OF the citizen is common law right, aud /
therefore II cannot he intcrfcred with without suit
n common law, and in that Jury must intervene;
Tor i not true that the personal liberty Of the cti
zen cannot be restrained without suit at common
aw; and, II II we're, slaves not parties 20 the |
Constitution nor under its protection
"a - a. 4 70