The republic., 1851-04-16

ing the obvious reasons for this provision, ,n
another part Of this opinion. AZ p'ssena = INV nv
the view which take of the nature ana chaI ae.c'
of this proceeding, and by the decision Oh lno
preme Court Of the United States 40 .ns oaso ~
Pigg. for if it is true the court there declared
that State magistrates may, II they choose, exer.
else the whole of this jurisdiction, mo every lac.
involved in the inquiry, and grant ceiuheate
mon such finding, II is surely competent to Con-
eress to confer upon State magistrate authority
10 Exercise part of this jurisdiction and to make
n mart of this inquiry. That the hnding OF State
magistrate upon that part OF tne inquiry ~nlou ne he
Commissioner here, who 10 to hnd the other fact,
and TO do something therein, Is in strict analogy
TO class of cases, where officers, who are not part
of the judiciary are directed to make certain IN
auiries and to lind certain facts which are to have
certain legal consequences when presented 10
tribunal authorized and directed TO act thereon.
will cite a single but very important instance OF
A statute Of this Commonwealth, passed in 1883,
directed bank commissioners, to be appointeu ~
the governor, to examine the banks, ana ~ tney
should be of opinion that any bank was insoiveh',
or in a Condition that made its further progress
hazardous to the public, or that II had cxcecoeo s
powers they were to apply to a justice OF the su-
preme judicial court, who should ior'nwn issus al
ccedtpg with its business until hearing could pe
had In the case Of the Commonwealth vs. ne far
,nrrs' and Mschanics' Bank, (2l Pick, SAD the
objection taken that this law was unconsutu-
tional because il usurpation OF judicial
power to confer the bank commissioners au-
thority to find fact and then TO require the Judge
that finding and without evidence 70 satisfy ms
own mind, to issue the injunction. The Supreme
Court overruled the objection, and held that IT was
competent to the Legislature to confer authority
upon the bank commissioners to lind and represent
TO the court state of facts which the court were
TO found a present and immediate action. This is
entirely analogous in principle to what Congress
have done in the present instance. They have au-
thorized certain persons In another State 70 nnd
e.. he mia re n
act, when it is properly certified to him.
Nv. The next objection taken by the learned
counsel for the prisoner to the constitutonaiity Oh
this act of Congress il, that the prisoner was not
present at the taking of the evidence before the
State Judge, and had no opportunity to cross exam
inc the Witnesses and therefore the evidence in
competent.
1.-THE prisoner is the identical person mentioned
and described in this transcript ofa record as hav-
ing escaped from Georgia while owing service, and
il has been proved to me, by evidence wholly inde-
pendent of the record, that he is, his absence from
the State where the evidence is directed by law to
be taken 30 that he could not be served with notice
if be was entitled to it, was in his own wrong, and
he cannot now complain that he had no opportu-
nifty to cross examine the witnesses
V. The last objection of the learned counsel 10,
that Congress have no power to legislate on the
subject OF the surrender of fugitive slaves at all,
but that it is power and duty which belongs ex-
might rest here wholly upon the authority OF
that high tribunal which is supposed to settle the
construction of the Constitution OF the United
States. But, all these questions have been
pressed upon me in a manner to challenge my
separate and independent judgment, shall briefly
state my view of a question which has long been
part of tn, settled law Of this country.
1t 10 not necessary to look into the historlcai
grounds which this clause of the Constitution ID
believed to rest in order to see in il purpose which
can be effectually accomplished only BY the Ma
tional Government. The very words OF the clause
seem to me manfestly to disclose such purpose.
They declare that these persons shall not be dis
charged from their service or labor IN the state to
which they may have fled, sin consequence OF any
law or regulation therein" 1t would seem, there
FORE to be beyond controversy, that the object OF
this provision TO prevent State legislation from
interfering with impairug the right OF the mas
to the service of his slave 1t intended to de-
clare, and it does declare, that whatever may be
the law of Massachusetts,, the subject of personal
liberty, that law shall not be applicable to person
who owes service or labor in the State OF Georgia,
simply because he has escaped within the Limits OF
this Commonwealth; but that the master or owner,
to whom such service or labor s due, shall retain
unimpared the right to that service or labor, which
the law Of his own State has given him.
Here, then, is a great leading purpose, which the
Constitution meant to secure ana accomplish, and
which must be accomplished by means. The
clause is not silent TO the means. II does not
stop with the simple annunciatiOn Of the principle
that the law OF free State shall not apply to fu
gitive from service due in another State. 1t de-
clares that such fugitive "shall be delivered up
on claim of the party to whom such service or Ia
arises upon this injunction, by whom ia he TO be
delivered up? But is it not quite obvious, that
construction which confines the duty Of making
such delivery to the State governments, may de-
feat the whole purpose which the previous part of
the clause manifestly discloses? That purpose is
to prevent any State Legislation whatever from dis
charging the obligation to render service. But to
say that the State, whose legislation or whose COM
mon law, if left to operate upon these cases, must
discharge that obligation, is the authority, and the
sole authority, entrusted with the power and duty
of preventing this consequence, ID to put 1t in the
power of the State to do that which the Constitu
tion Gays shall not be DONE
Itis, to my mind, answer to this difficulty to
say that the Constitution prohibits the States from
doing certain other things, and at the same time
leaves them physically free do them II they see mt;
or, in other words, leaves them to exercise their
own voiton whether to do them or to refrain from
them The Constitution declares that no State
shall pass any bill of attainder post facto law,
law impairing the obligation OF contracts; but
every State is physically able to disregard this pro
hibition, and its legislation will operate upon indi-
viduals until the judicial power interposes There
is active and instantaneous means of enforcing
the prohibition provided by the Constitution, for
the simple that the nature OF the case does
not require any, but the remedy may well be LETT
to the slow but certain operation Of the judicial
power.
But in the case of the prohibition in question,
which forbids the law of State from operating to
discharge obligation of service due in another
State there is superadded to the declaration Of this
principle the means Of giving il an immediate and
certain operation by the delivery" Of the person
owing that service to the person to whom it is due
i cannot bring my mind to the conclusion that it
intended by the Constitution to leave the sole
application Of these means, thus industriousiy
added to the prohibition, TO the very authority
against whom the prohibition itself is directed On
the contrary, il seems to that when the Consti-
tuition prohibited the laws and regulations of the
States from operating to discharge the obligation
of service, and in order to prevent this operation,
provided that the party should be delivered up"
it meant to cast, at cast, the concurrent duty of
causing that delivery upon the power which can
alone effectnally accomplish 1.-THE General Gov
ernment. To this have only to add, that the
question of the power of Congress to legislate on
the subject of the surrender Of fugitive slaves, is
conclusively settled by the Supreme Court Of the
United States in the case of Prigg, and upon their
authority il may be safely left to rest.
One other objection, of technical character, re-
mains to be noticed, and that is, that the power of
attorney, under which the agent of the claimant
undertakes to act, is not properly authenticated.
This power of attorney is acknowledged before and
certified by notary public OF the city OF Savan-
nah. The statute requires the power Of attorney
to be acknowledged and certified under the seal
of come legal officer court Of the State Terri
tory which the NAV he executed - 1867