The daily union. [volume] (Washington [D.C.]) 1845-1857, 1851-06-10

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I, The limited States district court on Thursday, judge
Sprague charged the jury IN SCOTS case al considerable
length going very iny into the qaeson OF The consuu
tonay OF The iuuse-slase ae 81 1880, ana sustaining
il n lie most decisive terms, His honor commenced BY
saying:
IL does moi belong to the Judiciary decide upon tue
wisdom expediency OF acts OF Congress, bat must
OF ty decide upon their constuilonalty In doing
so, however, must. Iemenber that we sitting IN
Judgment upon lhe action OF another great coordinate
department OF The government every member OF which
under oath 10 support the consultation. We must
begin The inquiry, hen with The presumption mat lheli
Legislation rs iishtiuL
:. Several objections made TO the act OF 1850:
"Fsl That Congress has no power 10 legislale upon
the subject
Second That The act does moi provide for trial By
jury as required by the seventh amendment OF Tue consul
"Thmd That it eiyes 10 commissioners judicial power
which, by the third article OF the constitutions can be
exercised only by OF the United States held by
Judges appointed by the President and Senate.
"rhese objections apply with equal force to the statute
OF 1898; for
Second II did not provide Tor rial by jury.
Third Ii not only authorized judges when rot holding
courts and out OF Their district to hear the and
grant certificate. but also State magistrates, who
not appointed by the President and Senate and held no
office under the United States and the certificate OF such
mag stale is made sufficient warrant tor the removal
and could be more intercepted ny habeas corpus or
other process than can the certificate OF the commits
sioner under the act OF 1850,
ave under the necessity, therefore, of inquiring
whether the act OF 1898 be constitutional The hrst 90.
lection has been solemny and unanimously decided by
the Supreme Court OF the United States IN case where
was directly in issue. and which will hereafter be re-
ferred TO-
" The last two objections are those which have been
most srenuously urged and TO them, therefore, shall
particularly direct my attention Most OF the re-
marks, however, which shall make will apply with
equal or greater force 10 the first,
These questions not nor do propose to treat
them as SUCH Su II may be useful 10 look at them tor
moment as if now presented for the first time, and at
forwards TO consider the contemporaneous construction
nj he n
and acquescence under IT, and the opinions and decision
OF judges and courts, both Stale and national.
Do the proceedings prescribed by Congress for the de-
livery of fugives from labor require the exercise of u
dcaI power by court, may 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
Marshall in the House OF Representatives in the ceebra
ted case of Jonathan Robins, than fifty years ago. ii
has been the established doctrine and practice that the
delivering up fugitive under treaty is an executive
and not judicial proceeding Such, also, has been the
invariable practice in delivering up tugives from justice
under the constitution Is not the case OF fugitive iron
labor to be cassed with or governed by the principles OF
extradtion ! Compare this with extradton under a
treaty In both there is claim that the person shall be
delivered up fugitive, be carried out OF juris
dction into another; both the claim is made under
law established in the one case by treaty, and IN the
other by the constitution and statute In the claim
made BY citizen under alleged right given by the
law of his State in the other il is by officer agent
under an alleged authority given by his government
Thus far they similar But il is strongly urged that
they differ in the purposes for which the delivery is made;
that in the II is for regular trial, and in the
other the absolute property OF The claimant, who may
Immediately service and the prisoner in all
respects slave. The objection derives It's apparent
force from conionndng, al least blending two sources
OF power that should be kept perfectly distinct The
certificate, OF itself, gives authority whatever 10
treat the party as slave. 1t is merely warrant
to remove him 10 certain ace Ii while an transliu
after The transportation, the claimant exacs service
he must find his Justification not in the certificate, but IN
the laws OF the Stale where the service required The
certificate is SIMPLY authority for iransporlaonnoih
y
der treaty. the party is delivered up, he disposed Of
according 10 the laws OF the State country into which
he is carried without any stipulation what those laws
shall be. whether proceedings shall be there Instituted
by The government the Individual, in what manner
the law shall be administered lis protection Obtained
In making ireales OF eXiradtlon, have confidence
that the foreign nation has laws, and that they will be
properly administered So also. the trainers OF the con-
stituoD and Cor gress had confidence hat our sister
States had laws aud that they would he fairly admins
tered In 1874, the laws OF Great Britain authorizing
the mpessnent OF seamen were IN full practical opera.
ton Suppose the law OF that country had authorized
any ofcer 70 whom the uslive should be delivered, Al
his option, 10 place him boarl any Brush man. OF.
we had known such 10 be her Law when we made the
treaty Of "a would delivery under that treaty have
ceased to be OF exirsdon because BY the known
law OF Greal Britain the would be subject, al the
will OF the person receiving him. be reduced pac,.
cal slavery That such nigh, be The fate of the alleged
fugitive might be reason against making such treaty
but If we chose TO make II, the delivery would still De
extrsdon. The act OF surrender, and the inquiries and
proceedings which prec,de H. are the same. whether the
sufJeci De atefsads by other laws sent 10 court oil
justice or service IN The navy"
/ view OF the fact that the act of 1850 aud that OF
1893 stand exactly upon the same ground in relation Ia
the constitution, bis honor after further discussing the
question OF extadlton OF fugitive slaves, proceeded 10
say;
Let next consider what is the force OF the contem-
porsneous construction OF the constitution Here we
must remember that IN constituting the fundamental as
well any other law, the sole inquiry is what the
intention OF those who established ~ The real nten.
ton OF the people who adopted the constitution TO be
aAceriAlDeJ. H. IN sixty language has been de
feoted, acquired shades OF meaning, sull our
qury is what the IN which il org nsl y
usedl How did those who adopted the constitution I'M
dersiaDd ITS language and provisions
" Had the Congress who passed the act OF 1898 the
means OF knowing the and intentions OF those who
adopted The constitution and amendmens'
The convention that framed the constitution closed
their labos N September, ISL The government went
INTO operation the 9TH oil March, 1889 Nearly the
whole o The intervening time and especially OF the year
1885, was spent IN earnest discussions OF its provisions
by The people and conventions the several States
The amendments framed and adopted by the fret
Congress under the lead OF Mr. Madison, and subse-
queny established by The legislatures OF hreefounbs Of
the States. The act considering passed
by the second Congress in February, 1885, that Congress
met the 24ih DAY Of October, 1921, and its members
therefore, when the constitution before the people
Tor adoption, and subsequently, when the amendments
were submitted 10 them, every Of these members
must have been OF sufficient are, ability and distinction
10 lake prominent part in the discussion and action
which preceded and attended The adoption OF the cons
mnuon and amendments, and they had been selected by
very people who had adopted both, for the purpose OF
.uPe.ehuhg ther views and intentions in carving the
CONSTITUTION INTO effect by practical legislation.
N htrl