Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1851-06-14
THE RESCUE CASE.

The time of the escape of the slave Shadrach from
the United States Court room, the jury disagreed
and were discharged.
The following is copy of the Opinion Of Judge
SPRAeuE on the constitu,ionality Of the law:
1t does not belong the Judiciary decide upon the wis
dom expedency Of acts Of Congress- But must OF
necessity decide upon their conststonaly. In doing So
however must remember that sitting in Judgment
upon action Of another great coordinate department Of tAe
Government every member Of which under oath 10 sup
pos, the Constitution We must begin the inquiry, them
with the presumption that their Legislation is rish'ful
Several objections are made TO the act of 1850
First That Congress has right to egisla'e upon the
subject.
coed That the act does provide for trial by jury,
as required by the seventh amendment of the Constitution.
Third That it gives the commissioners judicial power
which, y the third article Of the Constitution, can be e1er
ised only Of the United States held BY Judges ap
pointed by the President and Senate.
These objections apply with equal force the of
1898; for
First. Ths. was legislation by Congress.
Second Il did provide for trial by jury.
Third. II not only authorized judges when not holding
court and of their district hear the and grant
certificate, bat also State magistrates who were not appointed
by the President and Senate and held office under the Uni
ted States; and the certificate Of such magistrate made
sufficient for the removal and could be in
ecepted by habeas corpus other than can the
t6ca.e Of the commissioner uuder the act OF 1851
We under the necessity, therefore, of nquiring whe-
Their the act of 1898 be constitutions.
The first objection has been solemnly and unanimously
decided by the supreme Court of the United States in
where dsecy 10 ssde, and which wal hereafter De ne
fened to- !. .1
The last fao objections those which have been most
srenuously urged snd TO hem therefore, snail more Par-
culary direct my attention Mos Of the remarks however,
which sha make will apply With equal greater force to
the first.
These questions are not new do propose to treat
them such. Sts may be useful 70 look at them for
moment if presented for the first me and stewards
consider the conemporaneocs construction OF the constu
by the of 1893; the practice and acqciescence
under snthe opinions aG decisions OF judges and courts
both 3. ate and National.
Do the proceedings prescribed by Congress for the delivery
of fugive from lsbo require the exercise Of Judicial power
by court, mey they be summary before magistrate
Ii the latter only no one contends that there must be trial
by jury. ,~.
Ever since the profound argument Of Chief Justice Mar
shall in the House Representatives, in the celebrated
of Jonathan Robins than fifty ago. has been the
established doctrine and practice hs the delivering fugi
tive under treaty executive and judicial pro-
ceedng Such elso has been the anvaable practice in de-
lvene fugves from justice under the Constitution Is not
the of fugitive from labor to be classed with governed
by the principles exadion Compare this with exadion
under treaty In both there clam that the perron shall
be delivered fugitive, 10 be carried out Of ursdc
ton into another. In both the claim made under law
tabshed the by treaty. the other by the
constitution and In the claim is made by ci
zep under aged right given y the law Cd his State in
the other it is by officer agent under alleged
thority given by his Government Thus far they similar
Bot is strongly urged that they differ in che purposes for
which the delivery is made that in the is for
regular trial. and in the other the absolute property of the
claimant who msy Immediately service, and treat the
prisoner all respects slave The objection derives it's
appaIest force from confounding, least blending
Of power that should be kept perfectly distinct. The
icae of itself gives authority whatever the
party slave. 1t IS merely warrant to him
certain place. IT. while in transitu after the Transports
ton, the claimant exscs service, be must find his jusca
ton in the certificate bat in the laws of the State where
the service required The certificate simply authority
for transportation, nothing Under this statute, there
fore, well under treaty, the party delivered up to
be disposed Of according the laws OF the State country
into which he carried without any stipulation what those
lass shall be- whether proceedings shall be there instituted
by the Government the individual in what manner the
law shall be administered Its protection obtained 10
making treaties Of exadon have confidence that the
foreign nation has laws and that they will be properly i'd
minsered So, ALSO the trainers OF the constitution and
Congress had confidence that sister Sses had laws, and
that they would be fairly administered In 1874 the laws Of
Great Britain authorizing the imPressment OF seamen
in full practical operation. Suppose the law Of that country
had authorized officer to whom the fugitive should be de-
vered at his ion place him on board any British
ofwar indefinitely impressed seaman and
had known such be her law when made the treaty Of
1894 would delivery under nst treaty have ceased to be
case Of exsdon, BECAUSE by the known law Of Great Br
tsin the would be subject AT the will of the person
ceivng him, TO be reduce practical slavery That such
might fate of the alleged fugitive might be reason
against making such treaty; bat choose to make the
delivery would still be erradion. The Of surrender and
the inquiries and proceedings which precede the same
whether the subject be afterwards by other laws sent to
court Of justice, service in the navy.
The first that under the treaty Of 1894 that
of Jonahan Robins above referred He had been guilty
of murder and nutiny board British igate. Suppose
that he impressed seaman, which is improbable
and that the officer making the demand had informed Co.
that, by authority Of law, should Immediately
upon receiving the fugitive place him ssan 10 the naval
from which he haescaped and Executive had there
upon delivered him up would that have changed the chaac
ter of the Of delivery, of the inquiries which preceded
nst al Of being delivered up certain death under the
laws Of Great Britain he be would have been deliver
war, at the pleasure Of the commander Still it would have
been merely exadon under the treaty. the disposal Of the
fugitive being left the laws of the country to which he was
carried.
But even If the Of ugives from labor be not one of
eIadtion, still inquire whether il judicial in the
coDtended Tor That facts to ssceraned
and questions of law solved does render the proceeding
Judicial That to be done in all delivering up fug
yves from justice under the constitution treaty. Mags-
Haes also, In criminal examinations, investigate and
'fm an opinion upon questions both of law and fact and
executive officers often obliged do the same and to act
upon the conclusions which they arrive This may be H.
Illustrated by the already referred to- Robins the alleged
fugitive was claimed charge Of murder and mutiny on
oosd British frgae II involved very difficult and mpor-
ant questions OF Law and fact such his deny-hsd he
sought an asylum IN this couny-wee the proceedings for
ms reclamation regular under the trety-was the officer pre-
sennng 'ne claim duly auhozedwas the sleeed act with
10 British lurisdcion-beng on the high seas was il not
W. he tpb.l. W.