The daily union. [volume] (Washington [D.C.]) 1845-1857, 1850-11-28

and an examination of the arguments oil the counsei Tor
each party will satisfy any one that their Efforts were
worthy Of their great reputation. g4g,
With these materials before me, II would require very
cogen reasoning TO convince my mind maj al the De
cernDg this very interesting and important subject
have seen, and, is my duty 10 you, have carefully
considered. some ingenious and forcble suggestions
tending prove this mistake; but, on reflection think
il This were new question, Il could not be shown thal
the law contravenes this article of the constitutions
AT the time the constitution formed. there existed
the jurisprudence of all The States (aside from suits ~
equity and admiralty the ual OF crimes, the trial Of
rights Of persons and property between party and party
and judicial inquiries summarily made, designed 10 ac'
compsh some limited and special object but not TO try
and finally settle the right in contestation,
clause securing the right Of trial by Jury only in the trial
OF crimps. Its silence respecting the trial by jury 10
suits the common law and the appellate Jurisdiction
given TO the Supreme Court, .boh as 10 law and iac
were laid hold Of by the enmes Of the constitution as
strong for its rejection and, even after its adop.
on, formed no inconsderable part OF the grounds Oh
Washington, 209 2l0) To obyiaie these objections, the
second article OF the amendments, establishing further
guards for the citizen in criminal prosecutions, and the
seventh article securing trial by jury in suits at common
law, were adopted
am moi aware thai il has ever been supposed by any
that these Articles had any reference TO the third
class o judicial inquiries above mentioned That JUS
ces OF the peace in the District of Columbia may com.
NIT TO prison person who, on summary inquiry pc
fore them may appear TO be probably guilty OF an OIL
ence and thus deprive him for time OF his liberty that
the hing may be done BY magistrates in the States
for offences against the laws OF the United States maj
the executive authority oi any State 10 which person
shall have fed, the requision OF the governor OF
another State whence he fled, and the production o. 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 magistrates, may appreien fugitive from
foreign country, with which treaty to that effect exists,
and upon finding by such magistrate may deliver him
up be transported to the country whence he He'd sup
pose one has doubted And, if this he So then u
would seem 10 follow that besides the trial oil crimes
and suits al the common law in both which Jury must
intervene, there Is third class OF judicial inquiries and
ercuirc action thereon in which the constitution does
not require jury. Under this view two questions
lst Whether in point of fact, The proceeding before
the commissioned, under the statute OF 1880 is Judicial
inquiry to be summary made, designed 70 accomplish
some special and limited object but not to Try and hnaly
settle the right in conesialon; and,
I'd Whether, ii ii be so, Congress bad the constitu.
ona right 10 adopt and apply such proceeding to lbe
case of fugitive from service. and grant the aid OF the
executive power of the United States upon the result OF
such a summary proceeding. .gE .@a.. ."#
This first question must be answered by examlna.
lion of the act 10 question: and the act OF 1893, which Is
in par maer'd which the act OF 1850 was intended 70
amend aud 10 which II il supplementary. The act oil
l793, in the hfst and second sections, makes provisions
for fugilives from Justice and empowers the agent ap-
pointed to the fugitive to transport hun or her
10 the State or Territory from which he she shall have
fled" The third and fourth sections have reference TO
fugtves from service and enact that the certificate given
for removing the said fugitive from labor 10 the State or
Territory from which he she fled" II seems to me
that the object OF each OF these sets OF provisions was
simply extradition. certificate, given by magistrate
upon summary inquiry, has no definite legal effect ne
cessary attached TO by the general principles OF Jars-
prudence, and il must have one effect or another accord
ing 10 the enactments which provide ior II.
Whatever effect the statute gives TO It, II may possess
but nothing beyond this; and when this statute says Il
shall warrant Iemoval i seems 10 me 70 DC very
strained Interpretation which should attribute 10 II any
other effect conclude then, that the sole purpose oil
this law exadon II So there IS certainly pre-
sumpiion al the outset that the act o 1850. made TO
AN ndt had The object perceive
nothing in this act OF 1850 which leads TO the concu
sion that anything beyond this was intended ihe oth
section declares that the certificates shall be concu
sve OF the right OF the person or persons III whose favor
granted such fugitive TO the Stale or Territory
from which he escaped, and shall prevent all moestston
OF such person or persons by any process issued Oy any
court, Judge, magistrate. or other person whomsoever
The whole OF this taken together, think, means that,
Tor the purpose OF removal The certificate shall De con.
elusive. and no court, &c. shall do anything to prevent
such removal But, having declared that the certificate
shall be conclusive for this particular and ml,ed object
il follows that is not concusv Tor any Other for IT de.
rves all lis effect from the enactment, and here the enact
ment stops And this conclusion IS made necessary TO
my mind when find that the fact of service being due,
aud the fact OF escape IRON services may be concusivey
proved before the magistrate, for the purpose OF obtain
Ing the certificate simply by the production OF the record
OF court in the State whence the fugitive escaped,
which record is 10 be made on tI pdrie testimony 10
attribute to Congress intention TO allow the Claimant
to make proof by pdrtc testimony OF two out OF three
OF the material points, 10 make this proof conclusive ior
the purpose OF obtaining the Certificate and then to make
the summary hearing operate trial settling the ght
seems 10 me not to be warranted by anything found in
this law am led by the whole structure OF The act
well by detailed examination OF The language OF
particular parts OF it, 10 clear opinion that the proceed
log before the commissioner is summary Judicial m
quiry, terminating in special and limited oblect-vK
exlraditonand is not trial and final settlement ot the
! right in contestaon.
Ii is true the laws OF the United States make pro-
vision for any further trial Neither do they IN any case
OF extradtion The Parliament oil Great Britain may
suspehd the hdbcas corpus and keep imprisoned without
trial person given up pass bill OF aainder ana
put him 10 death Indeed IRON the very nature OF the
case the person given TO be tried by the laws OF the
State country TO which he is restored, and II Tor
those laws TO make provision Tor thai trial do not
mean say that the government which makes extradl-
ton mag not make conditions But il seems to me no
OF the right be drawn from the fact that no condi-
tons for future trial made. The only Just infer
s that in this, other cases OF extradItion, the
United States had confidence that justice would be done
under the laws of the State to which the fugitive should
be restored.
II, then, in point Of fact this proceeding before the
commissioner is summary, designed only for particular
and limited object and does net try finally settle the
right in contestaon the inquiry still remains whether
Congress had the constitutional right to grant the aid Of
the executive power OF the United States upon the result
of such inquiry. ...@E N. #a&n. BE- N8E. Ed
The constitution declares that upon claim being made
by the party TO whom The service is DUE the fugitive
shall be given up The Supreme Court has decided thai
Congress may eg.lae n aid Of the execution ct THIS re-
QUESTION oil the constitution II is not said by the eonsti-
tuition how this claim shall be made; i s, therefore,
subject OF legislation hon il shall be made II Is not SAID
hoD il shall be determined; and It is therefore lett to
Legislation hotc il shall be determined. The Legislation
must conform itself 10 any constitutional restrictions,