The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-13
SUNDAY MORNING, APRIL 10, 1851.

The commentaries were written and publish, nearly
ten years before the Of Prgg VS. Pcnnsyyania
cured when the learned judge came to deliver the
opinion Of the court in that he said There
h IN ,sG II ON % the subject Of fss
have been thought mutually to illustrate each other"
&c Peter 81, Let me ask, By whom have they been
the law Of 1885, which provided for carrying both those
clauses into effect in the statute and by similar
proceedings with the single difference that ia the
the appropriate proof to b. presented the
executive Of State who Is to deliver the fugitive
agent OF the State demanding him. and In the other the
appropriate proof Is to be presented TO Judge Of the
Circuit or District Court Of the United States any
magistrate OF county city town corporate who is to
grant certificate TO the claimant authorizing him to
remove the fugitive to the State Territory which
he fed Act Of Feb II 1881 1t obvious, Therefore
that far the legislation of the country practsed
under for nearly sixty years have any tendency
establish an analogy between these this legislation
dition this declaration Of the Sapreme Court Of
the United States in Brggs case, carefully and indus
.rousy made that they regarded the act Of l,9a re,
Its leading provisions and. with the exception of tina.
part which confers authority on State magistrates
Free from reasonable doubt difficulty" to my mind
clearly authorizes the Inference that it il lawful for
Congrers to authorize summary ministerial proceedings
IN the Of ono class OF fugitivcs, Is In the
the other for II Is quite plain that they had authorized
such proceedings in both. ..
In addition to the authorities already cited to th
point may also rcly on that Of the Supreme Court
Pennsylvania who in the year 1919, said of the law
793 shat 1t plainly appears from the whole scope AM
tenor Of the constitution and act of Congress- that the
fugitive to be delivered up summary proceed
Ing, without the delay Of formal trial in court Of
mon law But If he had really right freedom that
right not impaired by this proceeding he placed
just in the situation in which he stood before hs fed
belonged. Wright vs.. Deacon Serg and Rawie, o.
twould seem. Therefore, that il only remains to in
quire whether the act of 1850 authorizes requires
anything more than summary ministerial proceeding,
in aid OF the right secured BY the
the right Of removal In order to determine this. II is
necessary to look nj the proceedings which been
authorized The statute like the act of l7a3 requires
the claimant to present TO the commissioner proof that
the person whom he demands him service in another
State aud when the commissioner i satisfied of this he
Is to grant certificate which will authorize the
mova Now, seems to me to have very little tendency
TO show that this fun and final trial the question
OF savitude to that the proof required to be offered
Is that the party held to service The force and effect
Of the evidence required by the statute must be limited
to the object for which required and if that object
be- as clearly H. to establish the right Of only
it be extended to another aud utcror Oh cct
namely the right to continue to hold the party after he
has been removed In the OF fugitive Justice
it must be proved that he has committed crime but
proved for what purpose! Clearly to establish the right
Of removal This having been established the
that authorizes his removal has effect authorize
his Imprisonment or punishment in the State to which
he removed but the right Of that State hold and
punh him, must be established just he had
left its jurisdiction
am equally unable also to feel the force the obec-
ton that in the Of fugitive from service he is
rendered to his owner, whereas fugitive from justice
Is surrendered to state for the fact to 10
have tendency to show that the proceedings hore
in either trial Of anything than the right Of
removal In both the government Of the United
States nders the fugitive, provides for his
render to the party to whom 1t has stipulated that h
shall be delivered up That party in the one case the
owner who claims right to hold the fugitive after he
has received him In the other, it tho state, which
claims to hold and punish the fugitive after it has
ceved him In both the government of the United
States does nothing than surrender him,
provide for and his surrender IL is that
in the of fugitive from justice security tsken
that the party will be tried The of 1898 not
require that he shotid have been indicted lie
may be demanded, although he Is only charged with
crime affidavit before n magistrate in the
State from which he has come Neither does the
tnte Of this commonwealth mao any provision by which
the executive Of this State when Ii surrcnders ytv
from justice l. TO spnlate that he shall be tried (ev
Stat. G. 142 ST,s9)
Neither does the government Of the United States
when it surrendcrs fugitive from justice to foreign
country hold over him it, protection until he has been
tried such fugitive is surrendered under the law
Of nations, but under treaty stipulation; and in tn
of the treaty with Engand he Is to b. delivered
to justice but that justice Is TO be regulated, ADM
nstcicd and dealt out to him. according tho de-
mands, or the ideas, forms Of proceeding Of thi
government but according 90 the absolute discretion
the government that receives him. In all these
the government making the surrender nd,ubtcdly
mak"s IL in the general faith and confidence which the
comfy of nations requires independent to
place In each other that the power demanding fugitive
will deal with him justly. But Il does not ordinarily
make sipulations TO trial particular mpie
Of administering justice and unless such spulatons
nude. i can cxercise no control over the matter.
In the Of fugitives from service, there may b.
practical difficulties imp Probabilities trial after
the fugitive Is returned hut the question here l.
whether the government of the United States in liking
the surrender which II has stipulated to make l. con-
additionally bound to stpulate for trial. ani whether,
becauc IL has not made such stipulation. it, omission
TO do makes these proceedings dnal aud conclusive
instead of ministerial think neither o these positions
IL true. l know Of nothing to prevent the general
government from surrendcrng fugitive slave II II
h trusting to the government Of The State provide
him with the Of testing his alleged owners right
to hold him, after he has received him IL u suggested
that there are practical difficulties and improbpbitcS,
On the other hand Il may be suggested that there
practical means and provisions, wen known 10 b. miis
BY The saye states for trying hcsc question. of freedom
by process instituted for the EXPIRES purpose ani the
has just clear constitutional right to look to
class Of proa AS to tho other IL lonkip, to the
and not to the other, does not make its pro-
ccedngs clearly designed to BE- made mini teria AMI to
secure only the limited right q removal full aud final
trial q right which IL obviously intends to leave %
another TO sdjucatc, upon the faith that Il
will do justice 60 It's subject
Entertaining therefore very clear opinion that these
preceding ministerial and that Il q perfectly
pctent TO Congrcss TO authorize marsruc, appointed
BY the authority Of Congress. who i not judge %
make this Judicial inquiry for this special and limited
purpose. come nov 10 examine the authorities which
have BEEN cited at tue bar IN order to ascertain how far
that competency Is settled question Tho learned
counsel for the prisoner has said perhaps with entire
correctness that the QUESTION of tn constitutional ght
of Congress confer this authority upon an inferior
magistrate has never been dir.oy raised arru A anI
decided In any court la thi country with the Dion
q srery recent case In the supreme Court q this state
lie admits however, that the a prgg The Com
monwcaltl Of Pennsylvania, (l6 Peers) does contain
anguape thst authorizes this jurisdiction, although h.
denies that such effect ought to h. given T. Tho
hut II seems TO me that am bound IL give effect q the
solemn declaration Of opinion found in that Gaze fr
hnd ~ declared, that that court entertained No dfub
that state magistrates may, they ch0os exercise thi
authority unless they prohibited by State legislation
The case of Wright He'll 3 Serg and Hawle, ~
an authority directly in point. Tho Supreme Cour.
a Pennsylvania in that case decided that writ
hogins rspsgdndc would not lie, 10 interrupt ccrtih
eate granted by State magi rate for the Jval pt
fugitive slave. The certificate granted bY Judge
Of the Court sf Common Pleas. who undertook
under the law of 11tG In the II Jack Martin
IL Wendell 3Il, the Recorder the city of New Y,rk
had granted certificate, aud the supreme Court II the
state decided that a writ a. hGmir, replsga1do could
not prevent his rmoval. In the ~ tsmm )uwcath
w. Griffith Pickering II. warrant had been used
and no magistrate had undortaken to act. bat the
alleged fugitive had been seized Wy The Hgcns % the
owner without prucesa IN like manner in the of
Glen Hodges. johnson, 81. the slayo bad been
,ised without process and congueniy this qu 1st,nn
In no way involved in the decision. The-" ar al
the authorities cited at the bar With hr exception of
case, which am informed. occurred in the supreme
Court q this commonwealth. Monday lat, in rsfer
- til. "a LN ~.