The republic., 1851-07-14
COMMUNICATING or .ns Fag,..ys slay. Law.

seiiutlOhaily mot one decision OF any COURT, SiaI
or national, and not one opinion of any judge o
the United States, can be produced"
Judge sprague says
Several objections are made 10 the act of 1850:
FIRST. That Congress has no right to legialAt'
upon the subject.
Second. That the act does not provide for tria
by jury, as required by the seventh amendment oi
the Constitution.
Third That it gives the commissioners judicial
power, which, by the third article Of the Constitu-
uon, can be exercised only by courts of the United
States held by jodges appointed by the President
and Senate.
These objections apply with equal force to tie
statute of 1893; for
Firat That was legislation by Congress.
second, IL did not provide for trial by jury.
Third. 1t not only authorized Judges when not
holding court and out of their 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 ceEehcate of such magistrate is made sui
hcient warrant for the removal, and could be no
more intercepted by habeas corpus other process
than can the certificate OF the commissioner under
the act Of 1850.
We are under the necessity, therefore, of nquir-
ing whether the act Of 1898 be constitutional
The State courts have in several instances af.
hrmed, and in denied, the constitutonality
Of the act of 1893. The supreme court of Pennsyl-
vania, with Chief Justice Tilghman at its head, in
the case of Wright u.s. Deacon, 5Serg. and Rawle,
1893 was constitutional; that the party claimed as
fugitive was not entitled to a trial by jury, but
the proceedings were TO be summary, and that the
certificate of State Judge, pursuant to the act,
thorized the removal, and could not be intercepted
by process from the State court, and writ de
homine replegiando which had issued under the
State law was quashed. Here the authority OF the
state magistrate and the legal effect OF his certt-
cate were directly in issue and the pivot which
the decision turned. This was in 1919, more than
thirty years to the adoption of the Constu-
ton than the present
The next case was that of the Commonwealth ps
Griffith, Pick, IL. This indictment for
assault and battery and false imprisonment, against
an agent who had seized fugitive slave iii order
to carry him before magistrate pursuant to the
statute. The court unanimously affirmed the
power OF Congress to legislate upon the subject,
and the constitutionality of the act of 1893. But
thatcher, j., thought that, by the true construc-
ton OF the act, warrant to arrest was required
The purpose of the arrest to carry him before
magistrate. pursuant to the statute yet the consti
tutional authority of the magistrate was not dis
cussed or questioned. This was in the year 1923
In Jack Us. Martin, II Wendell, 3ll, a certificate
had been given by the recorder OF the city of New
York. writ de honine repieg giando was afterwards
sued out. Several questions arose, and, among
them, this question OF the authority OF the State
magistrate. The supreme,court of New York, in
their opinion, delivered by Nelson, j., page 32S,
use 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 is con-
elusive in the matter 80 far the State courts
concerned" And again, page 329: "The decision
OF the magistrate and certificate conclusive up
on the fact to tho State COURT This was in
1884. This was carried to the court of errors,
where an opinion against the constitutionality of
the act Of 1893 was delivered by MIR. Chancellor
Walworth, but il does not appear that any other
member OF the court concurred with him.
In Simss case before the supreme court OF Mas
sachueets, in April last these very questions of the
power of the commissioner, the right Of a trial by
,he rtsrhf off To slate
zealously argued and fully considered, and the
constituonaiity of the act Of 1850 unanimously af-
hrmed. The very able opinion Of the court, de-
lvered by Chief Justice Shaw, is recent that it
need only be referred to. The same result is ably
sustained by the opinion OF Mr.. Commissioner
Curtis in the came case.
Let us next look at the opinions and decisions of
judges and courts of the United States. In
parte Simmons in the year 1923, Wash c. G. r.,
396, MIR. Justice Washington, of the Supreme
Court, heard an application under the act of 1893,
out OF court summarily, without any question of its
constitutionality. He refused the certificate on the
ground that the alleged fugitive was free
In Hill ps Low, 4 Wash. @. q. r., 1927. which was
error irom the district court. the constituonality
oil the act l793 and the right OF the State magl5
trate to grant certificate, seemed to have been
conceded without question: the points raised being
only to the construction of the act.
SO in Worthington Us. Preston, 4 Wash. G. c. r.,
46l, where certificate had been granted by
State magistrate, no question was raised as to the
conatitutionnlity of the act of 1898, but other
grounds OF defence were successfully relied on
See also Johnson Tompkins, Baldwins r.,
579, and Jones VanZant, McLean's G. G. r.,
500 and Gil.
Judge Story, in his work upon the Constitution,
vol. 3, page GIT, referring to the fourth article
says at is obvious that these provisions for the
rest and removal of fugtives of both classes
template summary ministerial proceedings, and
not the ordinary course of judicial investigation,
to ascertain whether the complaint be well founded
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 vs. the Com
monwealth Of Pennsylvania, in the year lS42-l6
Peters, page 500. In this case the court emphati
cally affirm the act of l793 In the opinion OF the
court, as delivered by Mr.. Justice Story, page 622,
we find the following decisive language: "We hold
the act to be clearly constitutional in all its leading
provisions; and indeed, with the exception of that
part which confers authority upon State mags-
trates, to be free from reasonable doubt and diff
Guilty, upon the ground already stated. AS to the
authority conferred upon State magistrates.
while difference of opinion has existed and may
exist still on the point in different States, whether
State magistrates bound to act under it, none
e 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 egis- |
late was essential and turning point in the cause
is true that the question of the power of the State
ma gistrate to act summarily not necessarily
raised by the record, but the court nevertheless
purposey and deliberately decided it. What they
say Is not 10 DC Cas5ed among o0ter dtctd AZ WaA
not thrown in arguendo tending to the conclusion
to which 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. Mr. Justice Mclean, in separate opinion
given by him, held that State magistrates not
only constitutionally authorized but bound to act
under the statute. Since that decision pro- |
nounccd, there have been three changes in the
members of the court, all in the free States, JUS
tices Grier. Nelson and Woodbury., having suc-
cceded Justices Baldwin, Thompson and Story.
In the case of Garnett, brought a fugitive be. |
fore Judge Gricr, at Philadelphia, in October last,
he expressed his determination in the strongest
manner to enforce the act of 1850. Its constiu- |
tonality not discussed. A letter subsequently
written by Judge Grier holds this language: "a
person held as fugitive under the certificate of
judge or magistrate under this act is legally inn |
prisoned under process from court or magistrate
having jurisdiction" And again: "Those who |
believe that the Constitution aud laws OF their coun
try should be regarded nd obcyed, have ground
of complaint" Here the constitutionalty of the |
act is assumed as unquestioned
Judge Nelson, in charge to the grand jury in
March last, takes occasion, in very decided Ian.
guage, TO affirm the consttutionaity of the act Of