The daily union. [volume] (Washington [D.C.]) 1845-1857, 1851-07-09
CHIEF Justice HosnbIowsrs Opinion In regard F4-
xIslve Slaves

The National Era publishes extract from letter Of
Chief Justice Hornbower, OF New Jersey, TO Mr. Senator
Chase OF Ohio probably elected and presented for
the purpose of adording peiext for the opinion that
there is Judicial authority against the constitution
atty OF the fugitive slave law.
In his letter. the Chief Justice says:
"Somewhere about 1886, fugitive slave came before
a habsas corpus writ allowed by On that occa
son (when no such excitement existed prevals,)
opinion 10 the effect that, FIRST Congress had no
authority TO legisate the subjects secondly whether
Congress had such power not could be deprived
of trial by jury when hrs personal identity his age his
ownership of himself and his obligations sops amoiher as
has saus at issue. The opinion read by
from the bench, Chough the amount Of IL orally stated
by me,) because 1t became unnecessary-my associate
justices uniting with in opinion that the had
no power TO commit the man as slave, he had done,
the custody of the sheriff for saekeeping, until his ster
came for him, as being built for the safekeep
ing of any mans slaves. but Tor criminals only"
As this is the only judicial opinion which initiates
against the consttutonay OF the fugitive slave law
either of 1893 $780, this volunteer statement OF this
Judge is worthy OF especial remark. II is the more
worthy of attention because Judge Hornblower was
Chief Justice of his State the time referred to- and has
distinguished reputation
First and foremost. would observe that Jude Horn
blowers remarks apply the law Of 793 and that the
case was early one, before there any excitement
the subject. and before had considered the i'm
mense importance OF the question to the whole OF the
South directly, and incidentally to the North and West
Of 40 little importance it deemed that the Chief
Justice admits that he did not read his opinion, be-
cause his associates concured with him in his concu
sons We therefore infer that deemed Of SUI
cent importance to be formally recorded in the judicial
reports of the court We may also infer that it was
hasy and nadvertent decision that Congress had no
stitutiona authority to egslate this cardinal subject
We abundantly fortified in this inference from the
concurrent decisions of all other courts, both State and
national, where the subject has been fairly adudcaed
from 1898 down to the present time The subject has
repeatedly been before the justices OF the United States
and those of the States. under the act of l7s3
and there has been discrepancy Of opinion as TO the
constitutonay of that law But it has been decided
over and over again. both by State and national Judges
that there no sort of distinction on constitutional
grounds between the law of 1898 and that of 1850
They both related to the subject matter and if the
one was constitutional, SO was also the other
The question has, indeed been repeatedly raised in the
Supreme Court OF the United States and of course in the
State courts, whether State authorities were TO be gov
erned by State laws which prohibited the use of local
PRISONS and the agency of local State officers to aid in
securing ugtves till their masters could come 10 claim
them The justices Of the Supreme Court of the United
States divided in opinion this collateral point but
majority of the judges and consequently the Court
ITSELF of opinion that il the constitutional duty
of State authorities to enforce the law of 1893 The
opinions of State judges have been conflicting and, on
the whole, uncertain this particular point But this is
incidental question, and does not at all affect the power
of Congress TO egslae the subject II by State laws
the shers and the local prisons were exempted from
agency in this service it by followed that Uni
ted States matshas prohibited from doing their duty
in all such emergencies
Now Chief Justice Hornblower decided this case on The
principles of the State law OF New Jersey. and dis
charged the fugitive he says distinctly in his letter,
because "the jais Of New Jersey not built for the
saekeepng Of any mans slaves but for criminals only"
This puts the decision on the local law which some
OF the supreme judges dssented from the majority Of the
court, and which State judges might well be supposed
to favor their own legislatures.
But the opinion OF Judge Hornblower is open to crit
icism on general principles He says distinctly that
"whether Congress have such power or not, no man
could be deprived OF trial by jury when his personal
identity, his age, his ownership OF himself and his obi
CATION to another, as his slave, were at issue"
These indeed sweeping conditions all united and If
there proof Of the personal identity OF the
slave OF he would be entitled all the benefit OF
the doubt The identity Of the slave must be sasfac.
tory proven before magistrate woud hold him in
custody under the law Of 1898. But this does touch
the constitutional question. II he not the right
person. he was not amenabe 10 the law. No southern
man preends that freeman is 10 be detained ALI that
has ever been commended for is that when the personal
identity is established and il appears that he is in fact
a slave, he shall be sent back. The same doctrine
applies TO fugitves from justice from one State 10
another 1t appear satisfactorily that their personal
identity is proven, and that they have committed some
crime before the governor Of State will issue his
rant TO send them back
| Blu, observe that the decision OF Judge Hornblower
was under the law OF 1893 He then much troubled
because the slave If sent back would not have the right
Of trial by jury Now. II so happens that the law Of
| 1850 allows all fugitive slaves their return home to
be tried by jury OF the vcinage OF this obvi.
aes all the objections OF the Chief Justice this
They are put precisely the footing OF white persons
sent back under extradition laws, and like them, have
the full bene6, OF trial by jury
| So much for the peculiar circumstances under which
Judge Hornblowefs decision OF 1896 made.
Meanwhile, the fugitive slave law OF 1850 has been
passed. and has come up for formal adjudication before
the State and federal courts Cases have occurred in
Ohio, in Pennsy vana, in New York, in Michigan, in