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

legal opinion 10 the consiitptoqaly Of the fugitive
slave law Mr. Curtis has replied by The following
OPINION.
have considered the question proposed 10 me by the
marshal Of the United States for the district OF Massa-
chusetts; which IS, whether warrant and certificate
from commissioner, pursuant to the act OF 1850, chap
co. valid and eheciua In law to Justify the masha in
doing the acts therein commanded Ii the law in ques
iion be unconstitutional and void far attempts to
confer jurisdiction on the commissioner IL follows that
warrants issued by them of validity and confer no
power on the marshal My duty therefore, requires me
70 iorn and express to yon an opinion on The ques
ton whether the statute of 1850 chap co. is unconst
tutional and DID, SO lar IL attempts 10 confer usdc-
lion the commissioners issue warrants for The APP
prehenson OF alleged fugitves from service and 10 grant
certificates pursuant 10 that act The grounds upon
which have understood the law has been deemed by
different individuals unconstitutional are
lst. That II IS an eI post facto law. 4.
ID That il is not in accordance with the fourth ar
tice OF the amendments of the constitution.
3D. That II is in conflict with the seventh article OF the
amendments Of the constitution. a. ..,.
4th That il contrayenes the first section OF the third
article OF the constitution
5h That it suspends the writ of habeas corpus, con-
rary to the second paragraph OF the ninth section OF the
first article
The first Of these objections does occasion difficulty
in my mind Perhaps the best definition Of an &c post
fGeo law ID the given by the Supreme Court Of he
United States in Fletcher U.s. Peck 60 Cranch, l3S An
er post acto law is which renders act punishable
10 manner in which It was not punishable when was
committed The acts which form the subj matter OF
this statute the escape from State OF person
who owes service there, and his presence in another
State and the thing TO be done s TO carly him back.
The acts are not made criDna aud the thing TO be done
IS IN no legal sense punishment II is remedial, and
not penal process. Recapion--whether By the mere
act OF the party or by the aid Of legal processs rem
edy graned and not penalty inflicted (3 81. Conn., ID
But il were otherwise, these acts are not made crim-
nal BY this aw; and the thing 10 be done-vK the ea-
tradition Of the fugtiyeis not By this law, for the first
time attached TO these acts On the contrary, 1t sthe 4th
article OF the constitution itself which gives to these acts
their legal character and commands what is to be done
consequence; that ii the extrad,ion could be viewed
aS "A "A n rrIt nj il
ated and defined 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
10 act and II makes very important changes IN respec, 10
the evidence which is 10 be used on the inquiry. -
But believe i, has never been supposed that the egs
auTe restrained by prohibition agains eI post fdco
laws from creating tribunals to administer existing
criminal laws; and TO the provisions respecting evil
dence they concern only The manner in which the urs
dctioD after il has attached shall be exercised and with
this you have concern. IL the commissioner has
jurisdiction TO issue the warrant Of and grant the
certificate nothing TO you what rules OF evidence he
administers. ! mention these views not because doubt
the power OF Congress- in this change the rules OF
evidence, but because II Is your case, and that only,
which il is my duty TO consider
fourth article OF the amendments which establishes the
right OF tie people 10 be secure against unreasonable
searches and seizures TO 10 have application
10 the il has been determined upon great consider
alton By the Supreme Court of the United States, in
Prggs case that by force OF the constitution itself the
owner OF slave is clothed with authority without any
warrant seize and ecapture his slave And this is in
conformity with decisions previously made in the hishes,
courts OF several States, and AMONG others, OF the State
OF MassaShusels, u Pick, p ID i was also deter.
mined in Prggs case upon reasoning which 1t seems 10
me impossible to resist that Congress has the power by
Legislation TO afford 10 enforce The delivery and
secure the subsequent POSSESSION OF the slave.
Now il the exercise of the right OF reception without
any warrant is constitutional, | think il would be
difficult 10 show that the exercise OF this same right
by the aid of warrant issued in conformity with ac
oi Congress designed 10 afford 10 enforce the de-
livery, is not constitutional is welt known that this
Ih section in siirmance oil The doctrine OF the com
mon law, which prohibits general warrants and de-
signed TO restrain the government from making searches
and seizures OF the PERSONS houses papers, and effects
OF the people OF the United States either without
rants or upon warrants not confoabe 10 the terms o
this section But il the class OF persons in ques-
ton are not embraced in the word peopeii they moi
protected from sezure-i, on the contrary. the cons
luton itself has conferred the right TO seize them with
out warrant Il would be difficult TO maintain that a
seizure BY a warrant is not allowed by the constitution
In the case before referred to- lin Pick } Mr. Justice
Thatcher ssented from the other judges because there
was no warrant used ] have not known OF any judge
who thought the existence q warrant an objection
Indeed, see nothing IN this act Of 1850 which would
render il improper for the court or the commissioner tc
require the case 10 be brought within The very terms
the 4h article OF the amendments. The 9th section o
the act says The claimant may procure warrant ron
govern the action OF the court IN issuing The warrant
il at all doubtful whether the case be within thu
4th article should suppose that any court would take
care 10 have the preliminary requisites maze by th'
article complied with. understand they were complied
with in the cases ia which warrants have been ISSUED
here.
has been repeatedly suggested that this reasoning
proceeds the assumption that the person sought Tor
IN TACT fugitive from Iabor-a fact which, when The
the issues, still remains 10 be established This
is true but the less in all other instances
of legal proceedings The law affords remedy for
particular class OF cases describing that class OF cases 50
as 10 distinguish il from all others Whenever any step
IN the progress OF this remedy is taken before trial. u
only be upon the assumption that the case belongs
TO that class Thus the law of this Commonwealth al
lows who has legal claim TO attach The property o
him against whom the claim exists. II does not allow
who has legal claim TO attach anothers property
Yet, from the nature OF the case the attachment pre-
cedes The trial, and is made upon an assumption tha
there is a legal claim So, when demand for the
tradition OF person charged with crime in England i
made here, the warrant must issue upon an assumption
of certain facts, which, upon the exannatlon may turn
out not 10 exist.
apprehend thai il the law on its face describes cas:
OF cases, and authorizes process only in those cases,
can be objection 10 the constituhonay oil tina
law that though IL is valid when confined 10 those
IL may, by accident malice be applied 10 others no
within its terms meaning which others, ii included IL
the law would have rendered il to those
stuiona The obvious is, that these latter cases
not embraced in the law, and therefore cannot aec
it, would certainly be strange argument against h'
consii,utonay Of new penal law, that persons who
did the act made penal previous to its being made so
might, by accident malice, be punished under IT, fe
il seems 10 me TO be the same argument which hav,
been advertng TO.
My opinion is that this objection TO the law is not ten
able.
Another objection 10 the consutionality Of this Law
is drawn from the 9TH article OF the amendments.
cannot begin the examination Of this question with
out being vefy strongly impressed by the weight OF au
thoy in favor OF the validity OF the law, against th