The republic., 1851-07-14
oon.titallonall,y or sns Fag,.lvs slav. Law.

stitutonality snot one decision Of any court State
or national, and not one opinion of any judge Of
the United States, can be produced"
Judge Sprague says:
Several objections are made TO the act Of 1850
First. That Congress has no right TO legislAte
upon the subject.
Second. That the act does not provide for trial
by jury, as required by the seventh amendment Of
the Constitution.
Third. That il gives the commissioners judicial
power, which, by the third article Of the Constitu-
tion can be exercised only by courts of the United
States held by judges appointed by the President
and Senate.
These objections apply with equal force to tie
statute of 1893; for
First. That was Legislation by Congress.
Second 1t did not provide for trial by jury.
Third. IL not only authorized judges when not
holding court and out OF thor district to hear the
cause and grant certificate. but also State magis,
trates who were not appointed by he President and
Senate and held office under the United States
and the ceEhcale of such magistrate is made sui
hcient warrant for the removal, and could be no
intercepted by habeas corpus or other process
than can the certificate of the commissioner under
the act of 1850.
ing whether the act Of 1893 be constitutional.
The State courts have in several instances af
frmed, and in no one denied, the constitutonahty
of the act of l193 The supreme court OF Pcnnsyl-
vania, with Chief Justice Tilghman at it's head, in
the case of Wright Deacon, 5Serg. and Rawle,
52 after full consideration, decided that the act OF
1893 was constitutional; that the party claimed as
fugitive was not entitled to trial by jury, but
the proceedings were 10 be summary, and that the
certificate of State judge, pursuant to the act au
thorzed the removal, and could not be intercepted
by process from the State court, and writ de
hOmine repIegiasdo which had issued under the
State law quashed. Hero the authority OF the
State magistrate and the legal effect of his certi
cate were directly in issue and the pivot on which
the decision turned. This was in 1919, more than
thirty years to the adoption OF the Constiu
tion than the present
The next case that of the Commonwealth ps.
Griffith, 2 Pick, IL. This indictment for
assault and battery and false Imprisonment, against
an agent who had seized fugitive slave In order
to carry him before magistrate pnrsuant to the
statute The court unanimously affirmed the
power of Congress TO legislate upon the SUBJECT
and the constitutionality of the act of 1888 But
Thatcher, j., thought that, by tAe true construc-
ton OF the act, warrant to arrest was required.
The purpose of the arrest was to carry HIM before
magistrate, pursuant to the statute yet the const-
tutonal authority of the magistrate was not DIS
cussed or questioned. This was in the year 1923.
In Jack Martin, II Wendell, 3ll, certificate
had been given by the recorder or the city of New
York. A writ de homine replegiando was afterwards
sued out. Several questions arose, and, among
them, this question of the authority of the State
magistrate. The supremeconrt OF New York, in
their opinion, delivered by Nelson, j., page $50,
this language: "The question of slave or not
according tothe laws of the State from whence the
fugitive fled, belonged to the magistrate under the
law OF Congress TO decide, and his decision ID con-
elusive in the matter 30 far the State courts are
concerned" And again, page 329: ''The decision
of the magistrate and certificate conclusive up
on the fact to tho State court" This was in
1894 This case carried to the court of errors,
where opinion against the censtitutionality OF
the act Of 1893 was delivered by MIR. Chancellor
Walworth, but it does not appear that any other
member of the court concurred with him.
In Sims's case before the supreme court OF Mas
sachusetts April last these very questions Of the
power of the commissioner, the right OF trial by
jury and the right OF Congress to lcgislate, were
zealousiy argued and fully considered, and the
constitutionaty of the act Of 1850 unanimously at
hrmed. The very able opinion of the court, de-
livered by Chief Justice Shaw, is recent that it
need only be referred to. The result is ably
sustained by the opinion OF Mr.. Commissioner
Curtis in the case.
Let us next look at the opinions and decisions OF
judges and courts of the United States. In ex
parte Simmons in the year 1923, Wash Z. C H.,
1896, Mr.. Justice Washington, OF the Supreme
Court heard an application under the act of 1893,
out of court summariy, without any question OF Its
constitutionaty. He refused the certificate on the
ground that the alleged fugitive free.
In Hill Oh. Low, Wash. c. G. r., 327, which was
from the district court. the constitutionaity
of the act of 1893, and the right othe State magis-
trate to grant a certificate, seemed to have been
conceded without question, the points raised being
only to the construction OF the act
So in Worthington Us. Preston, a W. ash Z. O. H.,
a6l, where certificate had been granted by
State magistrate, question was raised as to the
grounds of defence were successfully relied
See also Johnson Tompkins, ! Baldwin's r.,
579, and Jones Vanzant, McLean'5 q. e. r.,
$50 and GIL.
Judge Story, in his work upon the Constitution,
VOL 8, page 6I7, referring TO the fourth article,
says It is obvious that these provisions for the ar
rest and removal of fugtivcs Of both classes con-
template summary ministerial proceedings, and
not the ordinary course of judicial investigation.
to ascertain whether the complaint be well founded
or the claim of ownership be established beyond all
legal CONTROVERSY
We now come to the decision of the Supreme
Court of the United States in Prigg cs. the Com
monweaith Of Pennsylvania, in the year lS42-l6
Peters, page $50. In this case the court emphat-
cally affirm the act of l793 In the opinion Of the
court, delivered by MIR. Justice Story, page 622,
wo find the following decisive languag ge "We hold
the act to be clearly constitutional in all It's leading
provisions; and, indeed, with the exception OF that
part which confers authority upon State magis-
trates, to be free from reasonable doubt and dth-
Guilty, upon the ground already stated. AS to the
authority conferred upon State magistrates,
while difference of opinion has existed and may
exist sll the point in different States, whether
State magistrates bound to act under it, none
is entertained by this court that State magistrates
may, if they choose exercise that authority, unless
prohibited by State legislation
The question OF the power of Congress TO legls-
late essential and turning point in the cause
1t is true that the question of the power of the State
magistrate to act summarily was not necessarily
raised by the record, but the court nevertheless
say is not to be classed among obiter dcta. 1t was
not thrown arguendo tending to the conclusion
tawhch they had arrived, but is itself a conclu-
sion which they take that occasion to pronounce,
and mean to establish by all the authority of the
court In this all the judges seem to have concur
red. MIR. Justice Mclean, in separate opinion
given by him, held that State magistrates were not
only constitutionally authorized but bound to act
under the statute. Since that decision pro-
nounccd, there have been three changes in the
Inombcrs of the court, all in the free States JUS
tces Grier. Nelson and Woodbury., having sue
cceded Justices Baldwin, Thompson and Story.
In the case of Garnet, brought a fugitive be.
fore Judge Grer, at Philadelphia in October last,
he expressed his determination in the strongest
manner to enforce the act of 1850. Its constitu-
tionality not discussed. A letter subsequently
written by Judge Grier holds this language "a
person held IA fugitive under the certificate OF
Judge or magistrate under this act, is legally i'm
prisoned under process from court or magistrate
having jurisdiction." And again "Thosc who
believe tnat the Constitution and laws OF their coun-
try should be regarded and obeyed, have no ground
of complaint" Here the oonstitutionality of the
act is assumed unquestioned.
Judge Nelson, In charge to tho grand jury in
March last takes occasion, in very decided Ian