The national era. [volume] (Washington [D.C.]) 1847-1860, 1854-09-21

v Us
Gpsrsols held to service or labor in one State
UNDER THE LAWS THEREOF, and escaping into
another &C. If fugitives from service and
labor are to be given up, under this clause, i
is most manifest that it deyolves on the claim.
ant to prove not only the identity of the fugi-
tive and the iAcs Of his escape /" from service
and labor but also the fact that such "ser-
wee and labor" was under the lars" of the
STATE from which he escaped. Otherwise, the
phrase Of the Constitution just quoted-so sig
nIhcsnt in meaning, so essential 70 the clause
itself-is wholly disregarded, and the whole
process of rendition is in direct violation of its
express provisions which specify and require
the Legality of tho service and labor" claimed
under the STATE LAWS
SO that if the claim be made on fugitive
from slGverg the very first and most essential
point 10 be proved is the existence of STATE LAWS
establishing and legalizing slavery. Until this
is done, the first step is not taken towards ma
king out q case under this clause of the Cen
stitution. If the State idD is wanting, there ia
nothing that can supply its place. This is too
plain to require argument. If no such laws
exist, there can be no escape from under
b them.
Yet in my last letter | showed that the au-
thor Of the Fugitive Slave Bill, Senator Mason,
objected to an amendment providing for jury
trial, on the ground that it would compel the
claimant TO show that slavery ia established
in the State from whence the fugitive has abb
secnded;" and ono srch Law could be pro-
dUcsd" no positive law" IN "a single
Statel" | showed that MIR. Mason and the
Senate dared not allow the legality Of slavery
to be examined by the courts, and therefore
would not provide jury trial; and | noticed.
further that in the Jerry slave case or q trial
growing out of it. Judge Hale would Lot allow
defendants counsel, Gerrit Smith, to argue
thai question.
Ia another court, however the question ras
aTgGed and it is important to see the manner
in which it was disposed Of by the presiding
judge. in the case Of Henry Miller u.s. George
w. Qlerry, an alleged fugitive, before the Cir
cuit Court of the United States for the district
Of Ohio, Mr.. Birney counsel for the plaintiff,
urged the absence Of any positive lar estab-
hshing slavery in Kentucky, from whence his
client had ESCAPED. And since even the South
eTn courts mad repeatedly decided that slavery
could exist only by virtue Of local positive law,
he claimed that the fugitive shOuld be dis
charged.
Tie case was tried before Mir Justice Me
Lean. who surrendered the fugitive, notwith-
standing the plea of MIR. Brney, when he de-
livered an elaborate opinion, which wss report
Cd by bimgelf, and published by his authority.
1t appeared IN the National Era Of October l3,
1853, from which the following extracts are
taken:
"SlGce1y is a municipal regulation, is local,
GEd oaRn5t eIit 1ritkOttt the authority Of lar.
Bat ii need not be shown that it is created By
cypress enactment. 1t may arise from long-rec-
Ognised night c0ntravened by no legislative
seaon. Alrcsn slavery is thus recognised in
Kentucky, and the Judges of the Supreme
Of ha al ssa,
is e0-extensive with the country, are bound to
take judicial notice Of its existence in those
States where it prevails
&" No proof it is contended, has been offered
to show that Kentucky is State in which sla-
very is authorized by law and a discussion in
the Senate OF the United States is referred to,
in which certain Senators declared that there
was no law 10 the South expressly es abllshing
slavery. Il Is with regret that hear this ar
gumcnt relied on, in this case. Il was used by
gentlemen Of the South 10 justify the ntroduc-
ton of slavery into our Territories without the
authority OF law#
Ia GrUve5 Us. Slaughter, Mississippi case
reported in , Peter5's H., 45O, the Supreme
Court Of the United States declared that sa-
very was local, and that it could MOI exist with
cut the authority of Law; that it was q muni-
ciPGi regulation.
q" Whistler tsis law was founded upon usage
or express enactment is of no Importance
Usage of long oontinuance-s0 long that the
memory Of man Tunneth not to the contrary
has the force of law. IL arts from lOngrec-
ogn;sed rights, cOntravened by no legislative
action. This is the source Of many of the
primo pies Of the common law. And this for a
century or more may constitute SldUery though
a be opposed Il As, 10 all the principles of The
common iGD Of England speak OF A(ricGn
slavery.
"But such law cGn only acquire potency
by long usage. Now, 1t mag be admitted that
ia some of the Southern States, perhaps all Of
them, there cannot be found statute qckich con-
tdlRS the ICordS, Ind be II enacted that SlaUeru
shall eIiSi,' and this was what was denied in
the Senate But this does not shake tho de-
cisiOn Of the Supreme Court of the United
States above referred to Usage Of great an.
tquity acquires the force of law. The denial
therefore that slavery existed by virtue of an
express lar. or By statute Lolc which was intend
ed 70 be denied, was no denial at alLt But nc
usage can acquire the force of law, except il
has been long recognised as the basis of action
That is, without "e1presS enactment" which
Mr. Justice Mclean himself says is nos Necessary
They intended Of course 10 for its support al
ll-dl arises from q
contravened by no legislative action" If that pro
cess was valid IN the old States tchv not admissible
in the new Territories? Why express ",seyet p
Why intimate, in another paragraph, that ION tht
question or slavery IN our Territories the principle
first departed from - the principle that sia
very is local. and cannot exist without authority q
law y Why cite Groves Slaughter, in favor o
that " pinetpl'," the force Of which few years o
usage" can set aside
But the truth is the Senatorial discussion cite9
M, Bfrllsy was not the one commented upon by III
Judge. 1t was the one in which not only certain
Senator'S but the SENATE refused to allow fugitive
jury trial for fear that the legality OF slavery cou
not endure the judicial scrutiny of the Fedora
Courts. THIS important fact Mr.. Justice NcLeal
ignores. IhtS significant indication of the frG ten
of legalzed slavery, in Southern eyes he fails Z
look in the face
Very true, indeed! But what them That de
cision was that slavery was local, and that
could not exist without the authority Of law that
was municipal regulation" This confirms the pie
Of Mr.. Birney, unless it could be shown that the Su
preme Court also decided that long usage" is mu
nieipal regulation" is law, and has egalzed ala
very Rse Report, a cited by Judge Mclean, doe
not show this, and Mr. Mason aud the Senate evi
IDENTIFY feared that they could not get such decision
The Judge lodges the point.
In the discussion cited by Mr.. Birnev, the de
NAL by Mr. Mason was that slavery is establish
ed 6V existing LzIcg - BIZ goSltIUs laao'' Judg
Mclean says il cannot exist tcithet rte a1stEoytf
Of Laso and forti6es it by citing the Supreme Cour
of the United States" Mr.. Mason and the Senate di
not intend las the Judge seems to insinuate) tia
slavery be legalized by usage of long continu
anee" They limited at nothing of the kind-proba
bly, never dreamed o. it, and certainly dared not
with it into court And tho theory Of Judge Nc
Lean is not that Of the South, and not brOache
in the Senate. It deserves notice that Souther
Judges have decided that slavery cannot exist with
out "y0siftUs law, aad that the same Judges hay
also affirmed that there is at the South no Ostt5U
law establishing slavery. Southern Statesman hRv
affirmed the same thing in the same terms thus at
testing Inadvertently perhapsl the ilegality