The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-10-17
THE FUGITIVE SLAVE LAW.
Opinion or MIR. Crittenden.
ATTORNEY GENERAL's OFFICE,
18th September 1850

called the Fugitive Slave bill, having passed both
Houses of Congress, had been submitted to you for
your consideration, approval, and signature, and
requesting my opinion whether the sirM section of
that act, and especially the last clause of that
ton, conflicts with the provision of the Constitution
which declares that "the privilege Of the writ of
habsas corpus shall not be suspended, unless when,
in cases of rebellion invasion, the public safety
may require iti''
Ii is my clear conviction that there is nothing in
the last clause, in any part OF the sia section,
nor indeed in any part of the provisions of the act,
which suspends, or was intended to suspend, the
privilege of the writ of habeas corpus is in any
manner in conflict with the Constitution.
The Constitution in the second section of the
fourth article declares, that ono person held to
vice or labor in State, under the laws thereof,
| escaping into another, shall, in consequence Of
any law regulation therein be discharged from
such service or labor, but SHALL be delivered up
claim of the party to whom such service or labor
may be due"
| 1t is well known and admitted, historically and
judically that this clause of the Constitution was
made for the purpose Of securing to the citizens of
saveholding States the complete ownership in their
slaves, property, in any and every State or Ter
rtory Of the Union into which they might escape.
(Prigg VS.. Commonwealth Of Pennsylvania, 16 Pet.
| 539) 1t devolved on the General Government, as
| solemn duty, to make that security effectual
Their power was not only clear and full, but &C
cordiDg to the opinion of the court, in the above
cited case, it exclusive; the States, severally
being under no obligation, and having power to
make laws regulations in respect to the delivery
| of fugitives. Thus the whole power, and with it
the whole duty of carrying into effect this import
| ant provision of the Constitution was with Con-
| gress. And accordingly, soon after the adoption
| of the Constitution, the act Of the 18th February,
| l793 was passed, and that proving unsatisfactory
and inefficient by reason (among other causes) of
some minor errors in its details, Congress now
attempting by this bill to discharge constitutional
| obligation, by securing more effectually the dev
cry of fugitive slaves to their owners. The sirth
| and most material section in substance declares.
that the claimant of the fugitive slave may arrest
and carry him before any Of the officers named
and described in the BILL and provides that these Off
GERS and each of them shall have judicial power and
jurisdiction to hear examine, and decide the case in
| a summary manner; that, if upon such hearing, the
claimant by the requisite proof, shall establish his
claim to the satisfaction the tribunal thus constu
ted, the said tribunal shall give him certificate, stat
ing therein the substantial facts Of the case, and
thorzing him, with such reasonable force may be
necessary to take and carry said fugitive back to the
| State or Territory whence he or she may have
capped, and then in conclusion proceeds as follows
"The certificates in this and the first section
toned shall be conclusive of the right of the per-
l son persons, in whose favor granted, to remove
such fugitive to the State Territory from which
he escaped, and shall prevent all molestation of
such person or persons by any process issued by
any court, judge, magistrate, or other person
| whomsoever."
There is nothing in all this that does not to
me TO be consistent with the Constitution, and ne
/ indeed IN redeem MED ore which cnn.
tains-that such fugtives shall be delivered up on
| claim of their
The Supreme Court of the United States has de-
cided that the owner, Independent of any aid from
State or National legislation, may, in virtue of the
| Constitution and his own right of property, seize
| and recapture his fugitive slave, in whatsoever
| State he may find him. and carry him back to
the State Territory from which he escaped.
| (Prigg We. Commonwealth Of Pennsylvania, 6
Pet, 539.) This bill, therefore, confers right
the owner of the fugitive slave; it only gives him
appointed and peaceable remedy, in place of the
| more exposed and insecure, but not less lawful.
mode ofself-redrcss. And to the fugitive slave
he has TO complain of this bill; it adds
coercion TO that which his owner himself might at
his own will, rightfuy exercise; and all the pro-
ceedings which it institutes are but so much Of or
derby judicial authority, interposed between him
| and his owner, and consequently of protection 10
him. and mitigation Of the exercise directly by the
owner himself of his personal authority. This is
the constitutional and legal view Of the subject,
sanctioned by the decisions of the Supreme Court;
| and 10 that limit myself
The act of the 18th February, l7e3 before allu-
ded to, far it respects any constitutional ques
ton that arise out Of this BILL is identical with
it, II authorizes the like arrest Of the fugitive slave
the like trial, the like judgment, the like certificate
1917 Il
that certificate as his warrant to remove him to
the State or Territory from which he escaped. And
the constitutionsty Of that act in all those paric-
ulars, has been affirmed by the adjudicatons of
| State tribunals, and by the courts Of the United
States, without single dissent, 80 far as know
| (Baldroin's c. c. r., ST., 579)
Iconclude therefore, that 30 far as the act Of the
18th February, 1893, has been held 10 be constitu-
tional, this bill must also be regarded, and that
the custody, restraint, and removal 10 which the
fugitive slave may be subjected, under the prov-
sions of this BILL all lawful, and that the certh-
cate TO be granted to the is TO be regarded
the act and judgment Of judicial tribunal having
competent jurisdiction.
With these remarks as to the constitutonality of
the general provisions Of the bill, and the consc-
quent legality Of the custody and confinement to
which the fugitive slave may be subjected under it,
Il
ticular question you have propounded in reference
to the writ Of hobeas corpus and Of the last clause of
the ,zh section, above quoted, which gives rise to
that question.
My opinion, as before expressed, is, that there is
| nothing in that clause section which conflicts
with, or suspends, was intended TO suspend the
| privilege Of the writ Of hobeas corpu, think go,
because the bill says not word about that writ;
| because by the Constitution, Congress lie expressly
forbidden suspend the privilege Of this writ, Gun
less when in Of rebellion invasion the pub
lie safety may require IT." and therefore the sus-
pension by this act (there being neither rebellion
nor invasion) would be plain and palPsble viola.
ton Of the Constitution, and intention TO COM
init such violation of the Constitution, Of their du-
ty and their oaths. ought to be imputed to them up
on mere constructions and implications; and third
ly, because there ia no incompatiblty between
these provisions Of the bill and the privilege Of the
writ Of habeas oorpu, in its utmost constitutional
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