The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1851-09-03


once all legal authority, and that a system of
government upon which such an element is
inqrafted must be emphatically govern
menI without law, force or efficacy.
But as ii is my purpose merely to discuss
the constithtionality of the act of Congress,
it is unnecessary TO pursue this topic further.
| have already remarked that the sole obs |
ect Of the law, to wit the surrender Of fu-
gtives from service, is demanded by the !
constitution itself. To comply with that re-
quirement is certainly no violation of that
instrument To be sure, Congress in CIR.
rying out the provision may violate some
other provision. Unless they do so, it must
be admitted that they have the whole range
Of legislative power and discretion in de-
tcrmining the mode and manner in which il
shall he done.
Have they done SO in the law in qucs>
ton ?
Two objections are made I'd the act in this
respect. First, that it takes away the feme-
dy by Iabeas Corpus; secondly, that it does
not provide trial by jury. The question
is not as 10 the propricty or expediency of
the act in these particulars, but as 10, its cou.
stituIionaity.
The objection in regard 10 the wri, Of
Ilabeas Corpus seems to be in great meas
ure abandoned, as well it may be; for in
truth the act leaves that writ precisely where
it found ii. No provision of the act dimin-
ishcs, curtais, or in any way restricts or en-
barrasses the remedy by .hat writ as it ex-
lists at common law. Before decision in
the case Of a supposed fugitive oy the judge
or commissioner under the act, il is agreed
or all hands that the writ lies After such de-
cision, the act provides, in substance, that il
shall not be overhaulcd or interfered with by
Habeas Corpus, Or any other writ. This
provision is in my view unmportant and of
no practical effect. The writ would not lie
even without this provision. The writ of
Ilabeas Corpus does not lie at common law
to discharge person legally in custody. The
certificate Of the judge or commissioner un-
der the act ia of itself sufficient authority
TO hold The fugitive, and of course the writ
would afford nc relief The act therefore in
this particular is merely decaratory of the
law as it would stand without the declaration.
There is another reason why the writ would
not lie, and that is that the matter is already
decided, and the writ of Habeas Corpus is no
moro c0ectual TO open decision OF COM
pctent tribunal than any oihcr writ. There
must be n period when controversy is to
cease, and when the party obtaining judg-
ment may rest secure upon its authority.
This is a cardinal principle of Jurisprudence,
without which no adjudication could be CT -.
fctual and no controversy could have an end.
The writ of Habeas Corpus cannot override
his principle. II it were otherwise, it i, OBJ
vious that the decision under the act Of Con-
gress could never be final, as the writ might
he sued cut TO overhaul it so often and so
long as the sun shall rise and set.
As TO the absence Of a provision for trial
by jury, have to repeat 1t Is not its expe.
diency that am about TO discuss but its con
stituiionality. And on this point think there
is no room for doubt.
The constitution of the United States pro.
yides that in suits at common law, when
tho value in controversy shall exceed twenty
dollars, the right of trial by jury shall be
preserved But the proceeding under the
act of Congress is neither suit at common
any proceeding known to the common Law.
1t is analogous to the surrender of fugittcs
from justice, but this is matter unknown TO
the common law and regulated by the law OF
nations, and even there il is a matter of dis
cretion only. The surrender of lugitves
from service originates in the constitution OF
the U. S. which provides that they shall be
surrendered on demand contemplating ,evi-
IDENTIFY, not proceeding through all the forms
of trial and adjudication known 10 the COM
mon law, but a summary proceeding. 1t is
clear that tho constitution does not in terms
require trial by jury in this case. Nor
can the spirit of that instrument be so ex-
tended a, TO demand il, unless Congress in
their discretion should deem that mode of
trial expedent. Sacred as tho right of trial
by jury IS regarded, and protected as it is
by the provisions of most if not all oi our
State constitutions, there are ye, great va
roty Of cases where that mode of trial is not
allowed. Such is the case even in our own
State, where il is dispensed with in all chan
Gerry proceedings, as well as variety of ca>
ses growing out Of statutory provision. And
this not merely in regard to property, but
also to the liberty of the citizen. A man
may be incarcerated upon charge of tho
most aggravated character BY the act Of a
magistrate without the Intervention Of
jury.
1t is not TO be supposed in this State OF
things that the fiamers of the constitution in
tended to innovate upon the settled course
Of proceeding in :he administration of jus.
,ice. Their language forbids it; for they
provide merely that tbc trial by jury shall
be Presereed." evidently in reference to
cases and modes of proceeding where that
mode of trial had been asceftained and set>
lied as tlie appropriate mode.
| am not aware that trial by jury is tho
appropriate mode, or is ever all0wedsat coIh-
mo. law, in any case of mere preliminary
I pIoceedinp Ii is adoptcd only uDon (lc