The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-12

not seem TO have excited general Inquiry into its
constitutionality. But it seems to me the dis
tinctions have adverted to, show that no argu-
ment in favor Of the fugitive slave act be drawn
from the usage of nations, or the provision of the
constitution in conformity to il which regulates the
extradition Of criminals. These relate to a public
ofender-the act in question seeks to enforce pri-
vate right-the former Is regulated by the public
authorties-the latter is claim instituted by an
indvidual-the former is preliminary and contem-
plates future trial at the proper place-the latter
is conclusive Of the right for the time and probably
for ever, and neither looks to needs any future
trial. In my judgment, the claim ofservce secured
by the constitution, if it requires law to enforce it,
| and it Congress can pass such law, only be
| provided for by act which secures the trial Of
the question in regular suit before jury.
| The seventh amendment to the constitution pro-
vides that " in suits at common law, where the
value in controversy shall exceed twenty dollars,
the right OF trial yjury shall be preserved" &c.
This amendment, Is well as the fifth, which de-
clares that "no person shall be deprived of life,
liberty or property, without due process oflaw,"
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
which this institution has been watched. 1t Is well
described by Mr.. Justice Story, in the case of Par
soas vs. Bedford, 3 Peters, 446 Justice Story also
| explains what is meant by g a suit ut common law"
in the section quoted. 1t covers all suits, except
those Of equity, admiralty, maritime jursdc-
ton; and the judiciary act of l7s9, chapter 20,
sections 3 IL, and 3D. carries this construction into
practical operation 1t will hardly be claimed that
Congress can take case which entities party to
jury, and deprive him of jury by converting it into
"a summary proceeding or that they can in the
| same way deprive him Of his liberty property
without due process Of law If they could do this,
the trial byjuy and he due process Of law secured
by the constitution. become a mockery. Treating
this as mere question ofpioperty exceeding twenty
dollars in value, entertain doubt that it is d
case where jury trial is secured by the constitu
ton.
| 4
held to service has reference to the color of
the persons skin, who is thus held, nor to the kind
| or degree Of service. The word " slave was pur-
posey omitted from the constitutions; and although
think that this relation was the one in the mind Of
the trainers Of tho constitution when this section
was drawn still its language, 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 claim Of service is made the
remarkable result would be, that, if q claimant
from New Orleans demands my writing desk Mt
New York, he must try titles with me here before
jury; but if he demands me, | can have no such
trial. Is there difference between a claim of labor
and claim of other property! and is the difference
such that, when the claim Of labor involves the
liberty Of person, the defendant forfets the right
| of jury trial! 1t may DO said that person seized
can try the question Of his right to freedom by a
jury at the place whence he fed This is IA conso
| lation, to be sure, to q man whose freedom 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 u trlal. but the act In question pro-
vides no trial by jury anywhere; there is obliga
ton on the claimant to take the person he seizes to
any particular place; and if have right to try
the question Of title to property hold at the place
| made, how can it be argued that l have no such
| right when the demand made is for my thews and
sinews! 1t is urged that juries would not render
| verdcts in favor of claimants where the right was
established. This does not correspond with my
| observation Of jury trials. On tho contrary
whatever prejudice jurors may feel against law,
have hardly ever known them to fail in obey
| ing the directions of the court upon point of
lsw II is also suggested, that the expense of
| recovering fugitive by this mode would amount
70 destruction of the right. II such evil ex-
certainly furnishes reason why the constitution
| should be violated, and safeguard broken down
in reference to the liberty Of human being,
| which is secured to him in defending a horse or
bale of cotton. But am passing far beyond the limits
| of letter, and devoting more time to the answer
Of your note than well snatch from profession
al engagements must pass over the objection to
that provision, which devolves the duties Of court
/ upon commissioners tribunal unknown to the
| constitution. can only glance ut the provision
at the close of the sixth section of the act
| which declares that the certificate granted I'M
der it shall BIO conclusive of the right Of the clai-
mant to remove the alleged fugitive and shall pre-
vent all molestation Of such person by any process
| issued by any court, judge magistrate or other
| person whatever" In my opinion, this provision
suspends the privilege Of the writ of habtas corpus
in a case not excepted by the constitution. am
States has decided that = party seized under this
act may still have the writ Of hajsnS corpus; but
| II 1t appears on the return to il that he is held
under "A warrant, or certificate issued in conformity
TO this act he must be rcmanded TO the custody Of
/ the marshal or the clamant The virtue of a writ
Of habcns corpus Is that it enables party to inst
tute an inquiry into the cause of his Imprisonment,
and il he Is not charged with a crime, committed
| by the final judgment Of court of competent ju-
risdction, a general rule to be discharged. UNI
less the right to dctain him i established BY proof
| This / understand to be "the privilege" Of the
writ meant by the constitution. II ii had been the
idle ceremony described by the Attorney General,
| do not believe the privilege would originally
have caused such a struggle to wrcst it from so
| vcrcign, or would have been 50 jealousy guarded
by the United States constitution and the bills Of
| rights in the several states. There is single
other provision OF this remarkable act that must
not omit to notice IL is new, far rs recollect-
! audc to section 10-which provides in substance
that party may 90 before any court Of record in
any state or territory, or in the District of Column
bia, or any judge thereof in vacation, and make
proof Of an escape, and that the person escaping
owed service to such party thcrcnpon tho court
| shall cause record to be made Of the matters so
Proved with general description Of the person
Gaping, with such convenient certainty may be
"and n transcript Of such record authenticated by
the attetaton Of the clerk. and Of the seal Of said
court being produced in any other State, territory
or district IN which the person so escaping may be
sioner or other officer authorized by the law of the
United states To cause persons escaping FROM
vice or labor, to be delivered up, shall be held and
taken to be full and conclusive evidence Of the fact
of escape, and that the service labor Of the per-
escaping, is due to the party in such record
toned" The section authorizes further evidence
TO be given IL the claimant chooses, but it is not to
be supposed that having record which Is declared
by law to be "full and conclusive evidence " of the
escape and the service due, and which contains
description Of the person claimed. he would offer
additional testimony, unless, possibly, the sub.
jet Of identity. The Judges II the United States
Court have generally held. that in the summary
proceedings authorized by the other sections Of the
act, they arc at liberty to receive counter evidence
on the part Of the person claimed, to give him a
hearing, and IL he proves he does not owe the SER
vice. TO set him free But they would hardly ven
turo TO receive such evidence in case arising under
the tenth section, and they certainly would not dare
to allow II, on the question of escape or service due
to overcome "A record which the statute makes full
and conclusive evidence against the person seized.