The southern press., 1851-09-04

} under which the proceedings were entertained,
) and by which alone il could have besn author
lied. II 10 due to the highly respectable gentle
! man, by whom the certificate WAS granted, to
! observe that this objection appears not 10 have
been made before him, and probably il was not
thought OF by him, or, until Afterwards, by the
, counsel for the petitioner.
Tne claimant saw fiji TO avail himself Of the
= provisions OF the 10th section OF the act, by
which the owner Of a fugitive slave Is permitted
To make proof of the main facts oftite and escape
before court Of record, or some Judge thereof.
10 the State whence the escape was made, and
having obtained transcript OF the record. which
such court Is required TO make, OF the matters
SO proved, to exhibit the same 10 the Judge or
commissioner, to whom application shall be made,
, IN the State where the fugitive shall be found,
as conclusive evidence Of the facts therein stated
Such record was produced before the court in
the present case, and is distinctly stated in the
certificate, to have formed the basis of this action
In the premises Ii was suggested at the argu-
nent,though apparently with no great confidence
that the comm soner might by possibility have
had o'her competent evidencs before him; but
am clearly Of opinion that no such supposiiion
is admissible
There is not, in the papers before me, the
slightest intimation to this effect, but on the con-
tfary, the transcript is exclusively referred to
throughout, as the evidence by which the title Of
the claimant and the fact of escape were estab-
lished. But the escape is also throughout al
legged to have occurred son or about the 25th
day of August, 1885," whereas the act was not
passed until the 18th of September following !;
and it is upon these dates that the objection is
founded. The language of the 10Th section of
the act is this: "And be IL further enacted, That
when any person held TO labor or service, in any
State or territory, or in the District Of Columbia
shall escape therefrom the party to whom such
service labor is due, his her, or their agent or
attorney, may apply to any court Of record there
| in, or Judge thereof in vacation, and make salts
factory proof" &c
Now it is insisted that this provision ia clearly
prospective, and therefore inapplicable to the
case of an escape from labor or service, occur
i ring before the passage OF the act and such
am constrained to say, appears to me to be the
plain sense of the enactment. 1t was agreed by
the counsel for the claimant that this being
remedial act, it is to be so construed as to sup
press the mischief, and advance the remedy
and that if it can be reasonably inferred from It's
whole tenor, that the provision in question was
designed to act retrospectiyey, il is to be so in
terpreted But when the language of n statute
is unambguous, and leads to no absurdity or
palpabe injustice it is to be interpreted a cord
ing to its natural import. 1t may be conceded
that the Legislative intent imported by the words
used might have been more explicitly declared,
by the ad liton, Immediately after the wor!
''shall' of the word hereafter, or Of the words
after The passage Of fhis act; but it cannot,
think, be maintained that this intent is not un-
equivocally expressed by the word .'shall" alone
If were permitted however, to look beyond
al. \
late upon its probable design, | am unable to
perceive that the result would be varied. The
only other part Of the act, specially referred to
by the counsel for the claimat, for the purpose
of shedding light npon that under consideration,
is the beginning OF the sixth section, which pro-
vides for a different mode Of establishing the
facts of title and escape.
The words here are: "That if person held
to service or labor in any State or territory of
the United States, has heretofore, or shall here
after escapes" g. The argument il that it is
manifest from this language that Congress in
tended to provide for cases of prior rs well as
subsequent escape. There can be no doubt of
this so far as the provisions of this section are
concerned. But it is to be considered that the
10th section introduced most important in
noyation upon the law as it was before the pas
sage of the act. 1t authorizes an er parte ap-
b
tue claimant, in the absence of, and without
notice to the party to be affected by the pro-
ceedings, to determine questions of fact nvov-
ing his freedom or servitude for ife and declares
the decisions of such cour, or Judge to be full
and conclusive evidence of the facts decided,
and therefore binding upon the judgment and
conscience of the court, Judge or commissioner
in any other State, before whom the alleged
fugitive may be reclaimed 1t is not my pro-
vince TO express any opinion on the reasonable
ness Of this great innovation. II must be con-
ceded that there were not wanting strong and
justi6able motives for it's enactment, and il il
sufficient for those whose duty IL is 20 execute
it, that Congress have seen fit to adopt it.
But it may | think, well be supposed, that in
Difference to the spirit of the great principle of
natural justice and constitutional law, which for
bids the enactment Of &c post facto laws, it was
Intentionally limited 10 cases Of escape from
servtud>, thereafter TO occur; and this Inference
| am of opinion, is rather strengthened than
weakened by the retroactive phriseology en-
ployed in the 9Th section. The liability of this
provision to abuse is too obvious TO esca pc no
lice and it is worthy Of observation, that in the
present case, as ii appears by the record of the
Kentucky court instead ofrequirng the person
/ al attendance of the witnesses of the claimant
the court saw fit, in the discharge of the grave
and responsible duty imposed upon it by the act
to receive affdavits, and to act upon them alone
although the deponents are described as residents
of the city of Louisville, where the court was
held. IL may well be that these witnesses were
credible persons, able from their own knowledge
to attest to all the facts requisite fplly to war
rant the decisions of the court, and that a care.
\ ful cross.examnation would have elected no
other facts favorable to the petitioners but con-
ceding that the evidence before the court might
lawfully be held by it to constitute the "satis-
factory proof" required by the act the opposite
course of procedure would, to say the least, have
been more consonant with the established, ard,
had supposed, universally recognized principles
of enlightened Jurisprudence
| am therefore also of opinion, that It is my
duty TO apply to this ensctment the same rule
of construction that is applicable to penal
statutes. It was" Gays Professor Christian,
one of the laws of the twelve tables of Rome,
that whenever there was question between
liberty and slavery, the presumption should be