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

4
| the right to seize, without process. in the
State OF Pennsylvania, Margaret Morgan.
a fugitive slave, and remand her to the
State of Maryland, from which she had
! escaped, contrary to the statute of the
former State. The decision of the court
was, that he had the power and the court
reversed the Judgment of the supreme
court OF Pennsylvania, (which had affirm
ed the judgment of the court in which
Prigg was convicted. The principal ques-
ton discussed by the justices of the court
who gave opinions. was, the power OF
congress to legislate upon the subject of
the reclamation of fugitives from labor.
and they were all Of opinion that congress
had the power; majority holding that
the power was exclusive, and that the
State could not pass laws even i'll aid of
the legislation of congress. In the course
of this discussion, nothing was said in
relation to the powers of commissioners.
for those officers did not exist at the time
when the act Of congress was passed. nor
of the right of the alleged fugitive to a
trial by jury, to decide the question OF
fact upon which his surrender depends.
In the case of Jones vs.. Van Zandt 18th
How. II. 2l5) the act of 1898 came again
before the court for its consideration =
and in the course of the opinion given in
that case the court says: This court
has already, after much delibesation. de-
cidcd that the act of February -th, 1913,
was not repugnant to the constitution
The reasons for their opinion are fully
explained by Justice Story, in Prigg vs.
Penn. 10th Peters Gil" In the case Of
Moore vs.. Illinois 9th How, Il l3) the
court state what was decided in the case
of Prigg VS.. Pennsylvania and among the
questions said to be decided in that case
was this--"That the government is cloth
ed with appropriate authority and func-
tons to enforce the delivery (of fugitive
slayes) on claim of the owner, and has
properly exercised it in the act OF congrcSs
of 18th February, 1893" These are all
the cases which we have been able to find
where the act of 1893 has come before
the supreme court of the L. 5. for review.
and in none of them is the question of
the power of commissioners to give the
certificate to the claimant which author
ICES the removal of the fugitive, discuss
ed or decided.
These cases are equally silent upon the
question Ca most important one raised
in this case as to the right of person
claimed as fugitive from labor. to have
the facts which must be proved before
he can be surrendered to the claimant.
tried and decided by jury. 1t is true
that the act Of 1893 provides for the sur
# hn al Co,
without such trial and decision. and it
is said in substance by the supreme court
of the [. s. in the cases of Jones VS. Van
Xandt. and Moore vs.. Illinois. that the
court did decide in the case Of Prigg VS..
Penn. that the act of Feb. 18th. 1893
was constitutional. But upon looking
at that case we find that the question Ct
a trial by a jury to determine the facts
Of Il case, was not raised by the record,
and was not discussed by the court in
giving its opinion. We think it would
be most unjust to that court to hold that
it has decided questions which its judges
have not even discussed, and which have
not been before it for adjudication.
Weare ofopinion therefore, that what
ever may be the duty of this court in re-
lation to the question of the power Of
congress to provide by law for the sur
render OF fugitiyes from labor to the per-
sons to whom their labor is due. we are
not at liberty to consider the question of
the right Of person claimed as a fugi-
tive to a trial by jury before he can lie
surrendered or delivered up to the claim
ant, as already settled 10y the court which
has the power finally to decide al qucs-
tons growing out of an alleged violation
of the constitution of the United States.
by an act of congress. We must c0nsid
er the question as an open one.
1t becomes therefore our duty to decide
whether 50 much of the act of congress
of September 18th, 1850, as provides that
certain officers, called commissioners.
shall decide the questions Of fact which
must be proved before the surrender of
the alleged fugitive can take place, is val
id and obligatory. We think that we
are also called upon to decide whether
the proceeding provided for in the act
for establishing judcially the fact OF lie
escape of the alleged fugitive and the fit
that he owes service or labor are i'll CON
formty with the constitution of the Uni /
ted States. These questions are most !
grave and important; we would that we
could avoid them, but they are forced /
upon us. and we are not at liberty to re-
fuse to consider them. /
We are of opinion that SO much OF the !
act of congress in question as refers to /
the commissioners for decision, the queS-
lions of fact which are to be established |
by evidence before the alleged fugitive |
can be delivered up to the claimant, is |
rcpurnant to the constitution OF the |.
S, and therefore void for two reasons
lst. because it attempts to confer upon I
those officers judicial powers; and I'd, be /
cause it is a denial OF the right OF the al /
legcd fugitive to have those questions trl- |
ed and decided by ajury which, we THINK, I
is given him by the constitution OF the /
limited States. We have referred to /
the case of Martin vs.. Huntens LcssceS,
Il Wheaton. p. 305) and to act ), ;. |.
of the constitution of the United States, I
to show that congress can not vest any /
judicial power under the constitution eX-
ccpt in courts. We are aware that con-
rress has established courts in the yarl- |
Gus territories, and has provided for the /
appointment OF judges with a different
tenure of office from that fixed by the
constitution but the power to appoint
these Judges is supposed to be derived /
from art 1. S ,, Of the constitution, which /
provides that congress shall have pow
cr to dispose Of and make all needful rules
and regulations respecting the territory
or other property of the United States"
Al.
aware that the authority to vest any por-