The republic., 1851-04-16


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treaty stipuiation and. in the case of the treaty
with England. he 70 be delivered up to justice.
and dealt out to him, not according TO the demands
or the ideas forms of proceeding Of this Govern
msnt. but according to the absolute discretion of
cascs, the government making the surrender un-
doubtedly makes II In tho general faith and conf
dcnce which the county Of nations requires inde-
pendent governments to place in each other, that
the power demanding . fugitive will deal with
him justly. But il does not ordinarily make stip-
uatious 70 secure trial. . particular mode Of
administering justice, and unoss such stpuIations
are made, It can exercise no control over the
In the case of fugitivss from service, there may
be practical difficulties or improbabilitiss ~ TO
trial after the fugitive 10 returned But the ques-
tion here u, whether tho Government Of the Uni
ted States, in making The surrender which it has
stipulated 10 make, 10 constitutioually bound TO
stipvlate for trial; and whether, because il has
makes these proceedings final and conclusive, in
stead of ministerial Think neither Of these pesi-
tons y true. know. Of nothing 70 prevent the
slave II it sees at, trusting 70 The government Of
the State 70 provide him with the means of testing
his alleged owners right to hold him. after he has
rsce'yed HIM i :uggs:ted that there are prsc-
hand, II may be suggested that there practical
means and provisionss well known TO be made by
tho slave States for trying these questions Of free
and the Government Of tho United States, for
aught that can see. has Just a. clear constitu-
onal right to look to class Of probabilities
to the Other Is looking to tho one and not TO the
other does not make tts own proceedings, clearly
designed to be ministerial and 70 secure only the
limited right Of removal, full and nai trial of
right which 1t obviously intends 10 leave 70 an
other government to adjudicatc upon the faith that
il will do justice to its own subject.
Entertaining, therefore, q very clear opinion that
these proceedings are ministerial, and that it is
magistrate, appointed by the authority OF Congress-
who 10 not judge, 10 mako this judicial inquiry
for this special and limited purpose, come now TO
examine the authorities which have been cited at
the bar, in order to ascertan how far that compe-
tency II settled question. The learned counsel
for the prisoner has said, perhaps with entire
rectness, that the question Of the constitutional
right OF Congress- TO confer this authority upon
inferior magistrate has never been directly raised.
argued, and decided in any court in this country,
with the exception Of very recent case in the su
that tho case Of Prigg %. the Commonwealth of
Pennsylvania (l6 Peters) does contain language
that authorizes this Jurisdiction, although he de-
mics that such an effect ought to be given to the
case. But it seems TO me that am bound to give
effect to the solemn declaration of opinion found
in that case, for find il declared that that court
entertained no doubt that State nagisrstes may. if
are prohibited by State lcgislation.
The case of Wright -. Hall, Scrg. and Rawle.
81, is an authority drectly in point. The supreme
court Of Pennsylvania in that case decided that a
writ de homins repIsgandO would not lie. to inter-
rupt a certificate granted by State magiatrate,
for the removal Of fugitive slave. The certificate
was granted BY . judge Of the court Of common
In the case of Jack vs. Martini IL Wendell sll, the
recorder ofths city Of New York had granted GER
tcstc, and the supreme court Of tho State decided
that writ dc homins rePlsgi0ndo could not prevent
his removal In the case Of Commonwealth
Griffith, Pickering, IL warrant had been used,
and no magistrate had undertaken TO act, but the
alleged fugitive had been seized by the agent Of the
owner, without process. In like manner, In the
case Of Glen vs. Hodges, 8 johnson, 81, the slave
had been seized without process, and consequently
this question was in NO way involved in the deci-
with the exception of case which, l am informed.
occurred in the supreme court Of this Common
wealth on Monday last, in reference 70 this pro-
ceeding. IL stated By tho counsel on both sides
that an application was made to that court for a
writ OF habeas corpus. TO bring up the body of
Thomas Sims, upon tho ground that his arrest and
restraint under my warrant il unlawful, for the
reason that had no authority to issue it, Iunder-
stand that the same question was argued which
has been argued before me, and that the court
unanimously sustained my authority to issue the
war; ant, and refused the writ. ] have not
any report Of the decision, but presume that this
question il entitled to be considered a. settled
BY other authority than my own.
IL. The second objection taken by the learned
counsel for the prisoner il, that this proceeding il
. suit at common law, in which either party hae
right to demand trial by jury; and inssmush e
tho act Of Congress has withheld trial By jury. It
il unconstitutional and void, ~ against tie 9Th
ticle of the amendments to the Constituton, which
declares that "In suits at common law, where the
value in controversy shall exceed twenty dollars,
the right Of trial by jury shall be preserved.
to show, on the authority Of the Supreme Court of
the United States, that Of the supreme court of
Pennsylvania, on that Of Mr.. Justice Story, az a
commentator the Constitution, and by some
views Of my own, that this 10 . summary ministe-
rial preceding, in aid Of right of removal, and
that the liberty Of the party 10 not in contestation
can entertain no doubt that il is this proceeding is
not suit at common law, in which either party
can, as matter Of right, demand . trial BY jury.
II it were proceeding in which the rights of the
parties were 70 be tried for final adjudication, then
should agree that the prisoner could, ~ . matter
of right, demand trial by jury If il were true that
slaves entitled TO the benefits Of the Constitu
proceeding of an entirely different character,
which, although IL involves an inquiry judicial in
its nature, 10 merely provided in aid of right of
removal. which the claimant would have without
it, under the Constitution, am Of opinion that
trial by jury cannot be demanded; and consequent
ly that this objection to the act 10 untenabe. The
decision of the Supreme Court of the United States,
in Prigg's case, that the law Of 1923, which also
withheld trial by jury, 10 constitutional in all its
leading Provisions 1t seems to me fully disposcs OF
this question
Ill. Tho next objection taken by the learned
counsel for the prisoner 10, that the Transcript of
record authorized by the statute 70 be made In the
State where tho claimant resides, 10 incompetent
evidence, Congress having no power to confer
State courts authority TO take such testimony.
The argument in support Of this objection II, that
the exercise Of authority to take testimony TO be
used in this proceeding, to lind fact involved
in the decision to be made, is the exercise Of judi
cisl power, which Congrcss cannot constituVonally
to make the 10 this objection, which salts
ies that il 10 wholly unlounded, intsllgblc, it
il necessary to tho provisions Of the statute
The 10Th section Of the statute contains the follow
ing provisions
"That when any person held to service or labor
in any State OF Territory, or in the District Of CO.
lumbia, shall escape therefrom, the party to whom
such service labor shall be due, his, her. or their
agent or attorney. may apply to any court OF re,