Daily national era. [volume] (Washington, D.C.) 1854-1854, 1854-08-04
From the Boston Commonwealth
TIE FUGITIVE SLAVE ACT UNCONSTITUTIONAL

Several weeks ago, Judge AID Smith, of
the Supreme Court Of WISCONSIN,, discharged
from custody Sherman M. Booth, accused of
rescuing slave, upon the ground that the Flu
gitiye Slave ACT was unconstitutional and void.
Judge Smiths decision is document of great
clcarness and ability, and we intended, before
this time to publish it, or at least that part of
it in which he 50 clearly shows that Congress
has no right whatever to pass any such statute,
and vindicates the necessity Of the State au-
thorities standing up firmly against the usur-
pations of the General Government. An ap,
peal was taken from the decision to the full
bench, and on the 10Th inst, atMadieon, Chief
Justice Edward v. Wilton, delivered the opin-
ion Of the Court Justice Crawford only dis
senting sustaining the decision Of Judge Smith,
and re-affirming the order dscharging Mr..
Booth. The New York Tribune Of yesterday
contains tho decision in full. 1t occupies three
columns of that paper, about half Of which
space, however is occupied with incidental and
collateral questions (some of them very i'm
portant, such as, for instance, the right OF q
State Court to take person out OF the custody
Of the United States oficers.)
Approaching the question OF constitution
city, the Court consider the argument of conn-
sci that it has been settled by decisions of the
Supreme Court in reference TO the statute OF
1893 The Court held that there are certain
points Of difference between the law OF 1898
and the act Of 1850, which are essential and
that therefore, q decision of the constitution
atty Of one does not, Of necessity, embrace the
other-sxcept perhaps, as to the question Of
the povcr OF Congress. This point, 80 ably ar
gued BY Judge Saith, is passed over BY the
whole Court They consider, 10 the first place.
the Constitution to bc,violated, because che act
attempts TO vest judicial powers in officers Gre
atcd by Congress, and unknown to the Consti-
tuition; and, in tho second place, withholds
from the person claimed theright TO trial BY
jury before he can be delivered up to the
claimant.
Upon the second point the Court quote the
words of the Constitution, that no person shall
be deprived of his life, liberty, or property,
without due process Of law; and also the lam
guage Of judicial decisions, that due process
of law means " by Indictment, or prcsentment
Of good and lawful men," The plea that slaves
are not persons, within the meaning Of the
Constitution, does not avail, because persons
who are free are liable to DO arrested and de-
prived of their liberty without trial BY their
peers. We quote the reasoning on this point,
being the conclusion of the decision:
CIT will be observed, that the claimant can
thereof, in vacation, aud make satisfactory
proof to such Court or Judge in vacation, Ct the
escape, and that the person escaping owes SER
vice or labor to such party.
at then becomes the duty Of the Court to
cause record to be made Of the meters SO
proved, and also description Of the person
escaping, and such record being exhibited to
any Judge, Commissioner, or other ofi,er au-
thorized by law TO cause persons escaping from
service or labor to be delivered up, shall be
held and taken to be conclusive evidence Of
the fact of escape, and that the service or Ia
Dor Of the person escaping is due to the party
in such record mentioned. This testimony is
taken and this record is made in the absence
of the person to be affected by the proceeding;
he has no opportunity to GROSS examine the
witnesses who depose to the facts which are
thus conclusiyely proved; but without bis
evidence is manufactured, which,
by virtue of this act proves beyond question
that he is slave, aud that he has escaped from
eervtude.
We are at q loss to perceive how this pro-
ceeding, by virtue of which freeman becomes
q slave, can be justly called due process Of
law in the sense in which that language is
used in the Constitution. We are aware that
it has been said that the proceedings before
the Commissioner do not determine the ques-
ton of freedom or slavery, that the fugitive is
only sent back to the State from which he is
alleged to have escaped; and when he reaches
there, he is frecmsn or slave, as his status
shall be determined by the local law. Il is
further said that these proceedings are analo-
gous to those by which the fugitive from jus
tico is delivered up, to be taken TO the State
from which he has escaped that person
may be arrested by virtue merely of indict-
ment founded on an eff iaSit, made before
charging him with treason, felony,
or other crime, committed in in some other
State; and that, upon tho production Of o copy
Of the indictment or eff lavit certified as au-
thentic by the Governor or Chief Magistrate
Of the State or Territory from which be fled, he
shall be delivered up, to be tsktn back.
/" IL is said, that as this proceeding does not
deprive the person Of his liberty in the sense
in which that term is used ia the Constitution,
but merely delivers him up, to be taken to the
State where, according to the indictment or
affidavit, the offence was committed, TO be dealt
with according to the local law, 80 neither do
these proceedings accomplish more than the
nero transfer Of the alleged fugitive to the
State whore, as is claimed, he owes service or
labor, by force Of the local law. We think
this 10 mistaken view Of the question. The
fugitive from Justice is delivered to en- agent
appointed by the Governor of tho State where
the offence is alleged to have been committed,
without any adjudication upon the question of
bis guilt or innocence in other words he is
delivered to the ofioer al 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 offence But the case is very
different with the alleged fugitive from labor.
There is an adjudication before the Commits
sionor that he owes service or labor, and that
he has escaped By force Of the act Of Con-
gress under consideration, tho record made in
the State from which he is said to have o.
capped, is conclusive evidence that his status Is
that Of q slave
"The Commissioner Is Obliged, il his identity
is proved, 30 to adjudge, and the certificate
which is given to tho claimant is given because
tue Commissioner has SO adjudgcd Moreover,
the Commissioner can only give the certificate
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