Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1851-09-18

ne OOJeCllou IN Tegdru 10 tne VIII OF
Habeas Corpus seems to be in a great meas
ure abandoned, as well it may be- for in
truth the act leaves that writ precisely where
II found IT, No provision of the act dlmiu-
ishes, curtalls, or in any way restricts or
embarrasses the remedy by that writ as II
exists at common law Before a decision
IN the case of a supposed fugitive by the
Judge or commissioner under the act, II is
agreed on all hands that the writ lies. Al.
ter such decision, the act provides, ~ SUBJ
stance, that IT shall not be overhaulded or
interlered with by Habeas Corpus or any
other writ. This provision is IN my view
unimportant aud of no practical effect
The writ would not lie even without this
provision The writ Of Habeas Corpus
does not lie at common law to discharge
person legally in custody. The certificate
of the Judge or commissioner under the act
IS Of itself sufficient authority to hold the
fugitive, aud ct course the writ would afford
no relief The act therefore m this part-
cular Is merely decIaratury of the law as It
would stand without tn declaration.-
There IL another reason shy the VIII would
not he aud tnat Is that the matter is alrea-
dy docIdcd. aud the writ OF Iabeas Corpus
Is nu more ciieciual to open a decision OF
competent tribunal than any other writ
Ihere must DE pefiod when couifoyers,
Is 90 cease, aua when the party obtaining a
J4dgmeat may rest secure upon ITS authors
" Fms Is cardinal pruclple Of JurIs-
sprudence, without winch no adjudication
cau.l be- ed,c u,, aud 40 contro,ers, could
have au end. ise atu 4 ilaacas Corpus
4
utheralsc. tt untI nu- tat the decIsIou
under .he ati Congress could never be
hnu, tae .ut might We sued out to over
hau II So often lnd so long as the sun shall
rise aud set.
As To the absence of provision for trial
by jury, | have repeat, At is not It's expedl-
eucy that am ab Ut To discuss but It's con-
smuuonalitJ Aud On this point think
there Is no room Tor doubt
The Constitution OF the United States
provides that ~ suits at common law, when
the value IN controversy shall exceed TWEEN
~ dollars, the right OF trial by jury shall
be preserved But the proceeding under
the act OF Congress neither a SUIT at COM
mon law nor does IT bear the slightest ana
logy to any proceeding known 10 the COM
'a'|' 'U's - - nlihiAiEAiuS " Tue SulIClutl
OF iugluves from justice, but tins is mat
ter unknown TO the common law and regu-
lated 10y tho law of nations, and even there
II Is matter of discretion only The sur
render of tugluves from service originates
IN the constitution of the United States
which provides that they shall be surrender
ed on demand, contempt ,aing, evidently
not a proceeding through all the forms of
trial and adjudication known to the com
mon law, but summary proceeding. !. is
clear that the constitution does not IN terms
require trial by jury ia this case Nor
can the spirit OF that instrument be SO eX-
tended as to demand It, unless Congress IN
their discretion should deem that mode OF
trial eXpedlent. Sacred as the right OF triad
by jury is regarded, aud protected as 1t is
10y the provisions of most If not all of our
State constitutions, there are yet great
variety Of cases where that mode of trial Is
not allowed. Such is the case even in our
own State, where II is dispensed with in all
chancery proceedings, as well as a variety
of cases growing out Of statutory provision.
And this not merely in regard 10 property
but also TO the liberty of the citizen. A
man may be lncarcerated upon charge OF
the most aggravated character by the act of
magistrate without the intervention of a
jury.
1t IS not to be supposed in this state of
things that the trainers of the constitution
intended 10 lnuosate upon the settled course
OF proceeding IN the administration Of JUS
ure. Their language fotbIds II, for they
provide merely that the trial by the jury
shaii be preserved, evidently IN reference
toc1s-s aud modes ol proceeding where
thai mode OF trial had been asceuaIned
and settled a. The appropriate mode.
aul got aware that trIal bg Jury Is the
appropriate mode, or Is ever allowed al
common lass ID ail case ol mere preii1'-
mary proceeding 1t Is adopted only upon
iUe au4I ,id aud Is ,ntended To be IN itself
dua Iud caueiu~he Hence the con>ulu-
i.a ". ll LuHtd States provides thai no
hetusei af Jlr >,all be Otherwise re.ex-
lillsal 800 ass cuur,e Il Ine common law
uu" air.d py jury IA mere preluln'
81. .c,rjtnl wuese f facts 10 be found
a.. sea- 'vl",in pen ior further eXamlna
uon lud uuIniol, would be an anomaly n
the Lass. / i- furnishes the reason Why
although al puf constitutions guarantee The
trlu ~ jury IA criminal Gases, yet the ac'
cused may be nctTcerated by single ma
gtstTtte. The proceedings before the ma
gi'irHe are plei ninary only - the night %
Jur) trial attaches to the 6nal hearing upul
the merits OF the case only. 81 II Is VIII
the luglINe FROM lusuce lie Is surrender
ed To be takeu To the place whence he fled
there to be rrled by jury of has country =
but up1n the question OF remaudlg him
which is merely preliminary to his final trial
nobody ever thought him entitled 10 ira
} by jury.
Thus we see there are cases where per
son may be deprived of his liberty aud even
sehl INTO another jurisdiction to be ther'
dealt with, without a Jury trial. How is |
with the iugltive from service Is he an.
, more entitled as a constitutional right L
such trial.
clamor has been raised about consIgn
: ing man to perpetual slavery by the decls
; ION of Judge or commissioner without
, trial by jury. Tins clamor has originated
I IN the supposltIon that the decision OF th
! Judge under the act of Congress IS conclu
D sl'e upon the question of freedom or slave
5 ny. This is great mistake That decis
E ION is conclusive only of the right TO Testor