The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-09-18


cannot think be maintained that this intent
is not unequivocally expressed by the word
shall alone. IL | were permitted, however,
to look beyond the terms Of that provision itself
and to speculate upon its probable design, am
unable to perceive that the result would be
varied. The only other part of the act special
ly referred TO by the counsel for the claimant
for the purpose of shedding light upon that
under consideration is the beginning of the
sixth section, which provides for different
mode of establishing the facts of title and
escape.
"The words here are That if person held
to service or labor in any State or Territory Of
the United States has heretofore, or shall here
after escape &c. The argument is, that it is
manifest from this language that Congress in
tended to provide for cases of prior as well as
subsequent escape. There can be no doubt of
this, far as the provisions of this section are
concerned. But it is to be considered that the
10th section introduced most important inno-
walton upon the law AZ it was before the pas
sage of the act. Ii authorizes an er pdrte APP
phcation to a court or judge, to be selected by
the claimant in the absence of and without
notice to, the party to be affected by the pro-
ceedmgs to determine questions of fact inyolv-
ing his freedom or seryitude for life, and de-
clares the decisions of such court or Judge to be
full and conclusive evidence Of the facts deci-
ded, and therefore binding upon the Judgment
and conscience OF the court Judge or commits
Oner, in any other State, before whom the al
legged fugitive may be reclaimed. 1t is not my
province to express any opinion on the reason
ableness of this great innovation. 1t must be
conceded that there were not wanting strong
and UNSUITABLE motives for its enactment and it
is sufficient for those whose duty it is TO execute
it that Congress have seen fit to adopt it.
But it may, think, well be supposed, that in
Difference to the spirit of the great principle of
natural justice and constitutional law. which
forbids the enactment of er post fdcto laws, it
was Intentionally limited to cases of escape from
servtude thereafter to occur and this inference,
am OF opinion is rather strengthened than
weakened by the retroactive phraseOlogy employ
ed In the 9th section. The liability of this pro-
vision to abuse is too obvious to escape notice.
and it is worthy of observation that in the pres
ent case, as it appears by the record of the
Kentucky court instead of requiring the person.
al attendance of the witnesses of the claimant.
the court saw fit in the discharge of the grave
and responsible duty imposed upon it by the
act, to receive afhdavits and to act upon them
alone, although the deponents are described as
residents of the city of Louisville. where the
court was held 1t may well be that these wit
posses were nzedible persons able from their
own knowledge TO attest TO all the facts reouix.s
fully TO warrant the decisions of the court and
that careful cross-examination would have
elected no other facts favorable to the petitioner
but conceding that the evidence before the court
might lawfully be held by it to constitute the
satisfactory proof required by the act, the
opposite course of procedure would, to say the
least have been more consonant with the es-
and, as | had supposed, universally
recognised principles of enlightened jurispru-
dence.
81 am, therefore, also of opinion, that it is my
duty to apply to this enactment the same rule of
that is applicable to penal statutes
1t was says Professor Christian, one of the
laws of the twelve tables of Rome, that when
ever there was a question between liberty and
slavery, the presumption should be on the side
of liberty This excellent principle our law
has adopted in the construction of penal stat
utes for whenever an ambiguity arises in the
statute introducing new penalty or punish
ment the decision shall be on the side of lenity
and mercy; or, in other words, the decision
shall he according to the strict letter in favor of
the subject And though the judges in such
cases may frequently raise and solve difficulties
contrary to the intention of the Legislature yet
no further inconvenience can result than that
the law remains as it was before the statute.
And it is more consonant to principles of lber-
ty, that the judge should acquit whom the legis-
lator intended to punish than that he should
punish whom the legislator intended to discharge
with impunity' Blac. Comm, SO, note l9.
"The result of this examination then is, that
though the evidence on which alone the Com
missioner founded his adjudication would have
been suflcient and conclusive i'm a case arising
after the passage of the act it was wholly in
applicable to case like the present, arising be-
fore the passage of the act. In other words,
as appears on the face of the certificate itself,
the adjudication was made without evidence,
and the only question is whether this great er-
ror, arising, have no doubt from inadvertence,
can be corrected on hdbeds corpus ! think it
may, and that it is my duty to do it, II, as it
has been said, good warrant is good cause
of detention, the converse of the proposition is
not less true"
We observe in the Richmond (va.) Wing
and other Southern papers gross misconcep-
ton of the extent and effect of this decision.
They assume that it completely nulli6es the
Law The Wing says: "Should the decision
be sustained by the Supreme Court, where the
case will undoubtedly be carried, 1t TiH effect
ually bar all further attempts to reeorer siapes
rho escaped from service prior TO the passage Of
he Fugitive Aau \ According to the
which he gives to the 10th section
Of the act no Stare acho escaped from sers'fude
prior TO the passage of the aet, can be recovered
under the lar. Such need therefore entertain
no apprehension of an arrest, but have right
30 regard themselves as free" ale
the universally known intention Ofthe
makers of the law-the direct language of one
Of its secions-and by miserable bubble
gives q construction to q single word in another
section which renders the law altogether pros
pectipe in its OPERATION "What
can be palmer than this clause in the 9th Sec
lion: That if person held to service or labor
in any State or Territory of the United States
has heretofore on shall hereafter escape &c.
The argument by which Judge Conklin at
tempts to evade the plain language of the law
would bring discredit upon the merest pettifog-
ger at the bar While he admits that it was
the obvious intention of Congress in adopting
this section to provide for the recovery of slaves
who escaped prior to the passage of the act,
yet inasmuch as the 10th section was an inno-
vation upon the old fugitive law, in Difference
10 the great principle of natural justice, &c,
which prohibits the passage of an er post faetO
law, he thinks the inference just that the de-
sign of Congress was to limit it to a prospective
operation. This involves not only contradic-
ton in terms, but'what is worse, gross confn-
sion of ideas. How is it possible for Congress
to have intended to make the law retroactive