The national era. [volume] (Washington [D.C.]) 1847-1860, 1854-08-10
From the Boston Commonwealth
TEE FUGITIVE SLAVE ACT UNCONSTITUTIONAL

the Supreme Court of, Wisconsin, discharged
from custody Sherman NJ. Booth, accused OF
rescuing slave, upon the ground that the Fu-
gitive Slave Act was unconstitutional and void.
Judge Smiths decision is document of great
clearness and ability and we intended, before
this time, to publish it, or at least that part of
it In which be so clearly shows that Congress
has no right whatever to pass any such statute,
and vindioates tie necessity of the State au-
tborities standing up firmly against the usur-
pations Of the General Government. An APP,
peal was taken from the decision to the full
bench, and on the 18Th inst. at Madison, 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-sffrming tie order dischargipg Mr.
Booths The New York Tribune Ct yesterday
contains the 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 10 take a person out Of the custody
of the United States of6cers)
Approaching the question of constitution
atty, the Court consider the argument of coun-
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, decision of the constitution
alty of one, does not, of necessity, embrace the
other--except, perhaps, as to The, question Of
the potcer Of Congress This point, so ably ar.
gued by Judge Smith, is passed over by the
whole Court. They consider, in the first place,
attempts to vest judicial powers 10 officers crc-
ated by Congress, and unknown to the Consti-
tuition; and, in the second place. withholds
from the person claimed the right 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
gusge of judicial DECISIONS, that e due process
Of law" means " by indictment, or preeentment
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 be arrested and de-
priyed of their liberty without trial by their
peers. We quote the reasoning On this point,
being the conclusion of the decision
alt will be observed, that the claimant can
90 before any Court of record or any Judge
thereof, in vacation, and make satisfactory
proof to such Court or Judge in vacation, of the
escape, and that the person escaping owes sor-
vice or labor to such party.
cit then becomes the duty Of the Court to
cause O record to be made Of the matters so
proved, and also description of the person
escaping and such record being exhibited to
any Judge, Commissioner or other officer au.
thorizod 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 la
Dor of the person escaping is duo to the party
in such record mentioned. This testimony il
taken and this record is made in The absence
of the person to be affected by the proceeding
he has no opportunity to cross. examine the
witnesses who depose to the facts which are
thus conelusively proved; but without his
knowledge evidence is manufactured, which
by virtue Of this act, proves beyond question
that he is slave, and that be has escaped from
servitude.
We are at loss to perceive how this pro-
ceeding by virtue of which freeman becomes
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 uues.
ton of freedom or slavery, that the fugitive is
alleged to have escaped; and wien he reaches
there he is a freeman or a slave, as his Status
shall be determined by the local law. Ii is
further said that these proceedings are analo-
gous to those by which tie fugitive from jus
tice is delivered up, to be taken to the State
from which he has escaped; that person
may be arrested by virtue rEefely of indict-
ment founded on an sfi iavit made before
magistrate, charging him with treason, felony
or other crime, committed in in some other
State; and that, upon the production of a copy
of tho Indictment or affi iavit certified as au-
thentic by the Governor or Chief Magistrate
of the State or Territory from which he fed, he
shall be delivered up, to be taken back.
1T is said, that as this proceeding does not
deprive the person of his liberty in the sense
in which that term is used in the Constitution,
but merely delivers him up, to be taken to the
State where, according to the indictment OF
affidavit, the offence was committed to be dealt
with according to the local law, so neither do
these proceedings accomplish 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 q mistaken view of the question. The
fugitive from justice is delivered to an agent
appointed By tho Governor of the State where
the offence is alleged to have been committed
without 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 offence. But the case is very
different with the alleged fugitive from labor.
There is an adjudication before the Commits:
s,oner that he owes service or labor and that
he has escaped. By force of the act of Con
gress under consideration, the record made in
the State from which he is said to have es-
capped is conclusive evidence that his status is
that of q slave.
"The Commissioner is obliged, if bis identity
is proved, so to adjudge, and the certificate
which is given to the claimant is given because
the Commissioner has so adjudged. 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
attorney, and it is given TO him for that reason.
It is not material TO inquire 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 may regain his freedom; but ii
he does, 1t will be by force of Che law Of the
State and not by virtue Of the act of Congress
under consideration; for under that he has
been adjudged slave, and BY force of it he
has been taken as a slave, by the person ad-
Judged to be his owner, his agent or attorney,
from the State where he was arrested to the
State from which he is alleged to have escaped.
1--WE are therefore obliged to conclude that
the alleged fugitive from labor Is taken back to
the State from which he is said 10 have es-
capped, not as . person merely charged with
being slave, but as q person who has been
proved and adjudged to be slave, and, as we
believe, without due process ofIlaw--without
having his rights passed upon end determined
by jury Of his peers. We thiok it essential
that his right should bs maintained by ali