Kenosha telegraph. [volume] (Kenosha, Wis.) 1850-1854, 1854-07-28

And we think it equally clear that the
constitution is violated by Withholding
from the person claimed, the right to q
trial by jury, before he can be delivered
up to the claimant.
The fifth article of amendments to the
constitution of the United States provides,
among other things, that mo person shall
be deprived of life, liberty, or property,
without due process of law" Chancel-
Tor Kent, III his commentaries, q Kent
com 5. says, 1T may be received as a
selt-eyldent proposition. universally un-
derstood and acknowledged throughout
THIS country, that no person can be TAX
en- or imprisoned, disseized of his free
hold, or liberties, or estate. or exiled, or
condemned, or deprived of life, liberty, or
property, unless by the law of the land,
or the Judgment of his peers"
he wo'ds lar Of the iand, as used
IN magma Chdrtd in reference to this
SUBJECT, arc understood to mean, due pro-
cess OF law; that is. by indictment, or
rresentment Of good and lawful men; and
this, says Lord Coke, is the true sense
and exposition Of these words" We are
aware that it has been said that slaves
are not persons in the sense in which the
term Is used in the amendment to the
constitution above referrc to. But this
admitting it to be true, does not affect
the question under consideration, as per-
sons who are free are liable to be arrest
ed and deprived of their liberty by yir-
tue OF this act. without having had trial
by jury Of their peers. We do not
propose to discuss the question whether
a slave escaping from the State where he
Is held to service or labor, into State
where slavery does not exist. thereby be-
comes free by virtue of the local law, sub
ject only to be delivered up to be return
ed again to scrvitude. as it is a question
not necessarily involved in the consider
alton of the subject before us. But we
propose to examine the operation of the
act upon free citizen of free State, and
to show that by it such person may be
deprived Of his liberty without due pro-
cess Of law" 1t will be observed that
the claimant can 90 before any court Of
record, and any judge thereof, in yacation,
and make satisfactory proof to such court
or Judge in vacation, of the escape, and
that the person escaping owes service or
labor to such party.
1t then becomes the duty Of the court
TO cause record to be made of the mat
ters 50 proved, and also description of
the person escaping, and such record be-
ing exhibited to any judge. commissioner.
or other officer authorized by law to cause
persons escaping from service or labor to
be delivered up, shall be held and taken
t. be conclusive evidence of the fact Of
escape, and that the service or labor of
the person escaping is due to the party
i'll such record mentioned. This teStimo-
ny is taken and this record is made in
the absence of the person to be affected
by the proceeding; he has no opportuni-
ty to cross-cXamine the witnesses who
depoSc to the facts which are thus con-
clusiycly proved; but without his knowl-
edge evidence is manufactured. which. by
virtue of this act, proves beyond question
that he is slave. and that he has aScap-
ed from servitudc. We are at loss 10
perceive how this proceeding by virtue of
which freeman becomes slave can be
Justly called due process of law" in the
sense in which that language is used III
the constitution. We are aware that it
has been sara that the proceedings before
the commissioner do not determine the
question Of fr-clom Or sl2Ycry, let the
fugitive is only sent back to the State
from which he is alleged to have escaped,
and that when he reaches there he is
freeman or a slave, as his status shall be
determined by the local law. 1t is fur
ther said that these proceedings arc anal
ogus to those by which the fugitive from
justice is delivered up, to be taken to the
State from which he has escaped; that a
person may be arrested by virtue merely
of an Indictment, founded on an affidavit
made before a magistrate charging him
with treason felony, or other crime, com
mitted IN some other State, and that up
on the probation If a copy of the lndict-
ment or affidavit certified as authentic by
the governor or chief magistrate of the
State or Territory from which he fled. he
shall be delivered up TO be taken back.
1t is said that as this proceeding does not
deprive the person of his liberty III the
sense in which that term is used in the
bat merely delivers him up.
to be taken to the State where, according
to the indictment or affidavit the oilcnSc
was committed, to be dealt with accord
ing to the local law. So neither do these
accom- pliSh more than the
mere transfer of the alleged fugitive to
the State where. as is claimed. he owes
service or labor. by force of the local law.
We think this is mistaken view of the
question. The fugitive from justice is
delivered to an agent appointed by tine
governor OF the State where the oticnse
is alleged to have been committed, with
out any adjudication upon the question
of his guilt or innocence, in other words.
he is delivered to the officer of the law.
and is in the custody Of the law, for the
purpose of being taken to the State where
alone he can be tried for the alleged Of
Tense. But the case is very different with
the alleged fugitive from labor. There
is an adjudication before the commission
er that he owes service or labor. and
that he has escaped. BY force of the act
of congress under consideration, the rec
ord made i'll the State from which he is
said to have escaped, is conclusive evidenc
that his status is that of a slave.
The commissioner is obliged, if his
identity is proved, so to adiudge, and the
certificate which is given to the claimant
is given. because the commissioner has SO
adiudged. Moreover, the commissioner
can only give the certificate to the claimant
who must be the person to whom the
labor or service is due, his agent or attor-
ncy, and it is given to him for that rea-
son. 1t is not material to enquire what
the condition of the person will be when
he has been taken to the State where the
labor or service is said to be due. He