The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-04-24


by the Supreme Court unconstitution-
al tSee Martin VS. Hunters Lessee, / Wheaton,
SOC. Also, Prigg VS.. Penn. Commonwealth, 10
Peters, 1901 This restricted the operation of the
act TO a very limited range, and the small number
Of cases arising under ID do not seem TO have ex-
cited general inquiry into its constitutionality
But it seems to me the distinctions have verified
to show that no argument 10 favor Of the fugitive
slave act can be drawn from the usage Of nations
or the provision of the Constitution in conformity
to it which regulates the extradtion Of criminals
These relate TO a public efender-the act in
question seeks to enforce q private right the
former is regulated by the public authorities
the latter is claim instituted by an individual
the former is preliminary, and contemplates a
future trial at the proper pace-the latter is con-
elusive of the right for the time, and probably
forever and neither looks to nor needs any future
trial In my judgment, the claim of service
secured by the Constitution, If it requires law
to enforce it, and il Congress pass such law,
can only be provided for by an act which secures
the trial Of a question in a regular suit before
Jury. The seventh amendment TO the Constitu-
ton provides that In suits at common law. where
the value is controversy shall exceed twenty dol
lars the right of trial by jury shall be preserved"
&c. This amendment, as well as the fifth, which
declares that no person shall he deprived of life,
liberty, or property, without due process of law"
grew out Of the opposition manifested to the adop
ton of the Constitution, because it did not in
terms provide for the trial by jury in civil cases
1t is needless to remind an American of the
anxiety with which this institution has been
watched IL is we'll described by Mr. Justice
Story, in the case of Parsons vs. Bedford 3 Pc
tiers, 446 Justice Story also explains what is
meant by I" a suit at common law, in the section
quoted 1t covers all suits except those of equity,
admiralty, or maritime jurisdiction and the judi
ciary act Of 1889, chap. 20 sections 9, ~ and l3,
carries this construction into practical operation.
1t will hardly be claimed that Congress can take
a case which entities party to jury, and deprive
him of jury by converting it into summary
proceeding, or that they can in the same way de-
prive him of his liberty or property without due
process of law. If they could do this, the trial by
jury and the due process of law secured by the
Constitution become mockery. Treating this
as a mere question Of property exceeding twenty
dollars in value, entertain no doubt that it is
case where jury trial is secured by the Consti-
tuition.
1t will be remarked that the provision as to
persons held to service has no reference to the
color of the PERSONS skin who is thus held nor to
the kind or degree of service. The word "slave
was purposely omitted from the Constitution !;
and although think that this relation was the
one in the mind of the trainers of the Constitu-
tion when this section was drawn, still its Ian
guage, and the language Of the act in question,
embraces apprentices, and all other persons held
to service. II jury trial. then, is not secured
where a claim of service Is made, the remarkable
result would be- that if claimant from New Orr
leans demands my writing desk at New York, he
must try titles with me here before jury, but IL
he demands me, can have no such trial. Is there
a difference between claim of labor and o claim
of other property And is the difference such
that, when the claim Of labor involves the liberty
of person, the defendant forfeits the right Of
trial by jury?
1t may be said that person seized can try the
question of his right to freedom by jury at the
place whence he fled. This is consolation, to be
sure to man whose Aeedom has been destroyed
by seizure and transportation from his home; and
if he could get his witnesses to the place where the
claimant concludes to take him, he could have q
trial. But the act in question provides no jury
trial anywhere there is no obligation on the
claimant to take the person he seizes to any par
ticular place; and IL have. right 10 try the
question of title to property hold, at the place
where the property is, and where the demand i.
made, how can it be argued that have no such
right when the demand made is for my thews auG
sinews? 1t is urged that juries would not render
verdcts in favor of claimants where the right wa.
established. This does not correspond with my
observation of jury trials On the contrary
whatever prejudice jurors may feel against a law
| have hardly ever known them to fail in obeyine
the directions of the court upon point of law
IL is also suggested, that the expense Of recover
ing fugitive by this mode would amount to de-
struction of the right II such An evil exists, i,
is incident to this unfortunate relation. IL Ger.
tv,1v rsakn vhxtk he
should be violated, and safeguard broken down
in reference to the liberty Of a human being
which is secured to him In defending o horse OF
a bale Of cotton.
But am passing far beyond the limits of let
ter, and devoting more time to the answer OF your
note than can well snatch from professional en-.
gagements must pass over the objection to that
provision which devolves the duties Of court
upon a Commissioners tribunal unknown to
the Constitution. ] can only glance at the pro-
vision at the close of the sixth section of the act
which declares, that the certificate granted under
it shall be conclusive of the right Of the claimant
TO remove the alleged fugitive, and shall prevent
all molestation Of such person by any process is
sued by any court, indge magistrate, or other
persons whatsoever In my opinion, this provi-
sion suspends the privilege Of the writ of babeas
corpus in case not excepted by the Constitution
| am aware that the Attorney General Of the
United States has decided that a party seized
under this act may still have the writ Of hsbeas
corpus but II 1t appears on the return to it that
he is held under n warrant, or certificate, issued
In conformity to this act, he must be remanded to
the custody Of the Marshal or the claimant. The
virtue of writ Of habess corpus is that it enables
a party to institute an inquiry into the cause Of
his Imprisonment, and IL he is not charged with
crime, or committed by the final Judgment of
court OF competent jurisdiction, as general rule,
to be discharged unless the right TO detain him Is
established by proof This | understand to be
" the priDiiegeo Of the writ meant by the Consti-
tuition. II it had been the idle ceremony describ-
ed by the Attorney General do not believe the
privilege would originally have caused such a
struggle to wrest IL from a sovereign, or would
have been 80 jealously guarded by the United
States Constitution and the bills Of rights in the
several States
There lisa single other provision Of this remark
able act that must not omit to notice 1t Is new,
30 far as recolect. allude to section l0-wbich
provides in substance that a party may 70 before
any court Of record In any State or Territory, or
In the District Of Columbia, or any judge thereof
In vacation, and make proof Of an escape, and that
the person escaping owed service to such party
thereupon the court shall cause record to be
made Of the matter so proved, with general de-
scription Of the person escaping, with such con.
venient certainty as may be-"and atranscript OF
such record, authenticated by the attestatiop Of
the clerk and of the seal Of said court, being pro-
1uced in any other State, Territory, or District,
in which the person 80 escaping may be found,
md being exhibited to any Judge, Commissioner,
DR. other officer authorised by the law OF the
United States to cause persons escaping from ser
vice or labor to be delivered up, shall be held and
aiken to be fuH md conclusive euidenee Of me fact 81
'scaps, and that me servies or labor Of tie person
escaping is due Me party ia sueh record mentioned"
The section authorizes further evidence to be
given II the claimant chooses, but 1t is not to be
supposed that, having record which Is declared
by law TO be "full and conclusive evidence" OF
he escape and the service due, and which con.
aims description of the person claimed, he would
,ffer additional testimony, unless, possibly, on