Year: 1861

then, be does not think with you, that the Law
disallows the introduction OF evidence BY tn
fugitive. He says the question has never beef
raised before HIM, and in what particular case


he might feel authorized to refuse the evidenc


We are not informed / should say that b
would receive it in all cases where it was legal
ly competent, and where it was offered In gooC
faith. But it must not be forgotten that th
question between US is, what does the law per
NIT to be done, not how any particular com
missioner construed it.


I You quote also, passages from the sroumen
Of the late attorney general Col. Wolcott, anC
from the dissenting opinion o. Judge Sutliff il
the Bushnell and Langston case.


The Col. will, I think, be somewhat surpri
sed as well as amused to find little oratorica
flourish Of his not only detached from the body
oi his learned and ingenious argument, but ex
hibited as his deliberate opinion on the question
Of law in no manner involved in the case ht
was discussing. An advocate ought not to b.
held responsible for every incidental remark ht
may make in the glow and feryor of animated
debate and although | see nothing in the ex
tract quoted in conflict with my opinion on the
particular point in controversy, / must defend
the Col against your mode OF concluding him
as to his deliberate legal opinions.


| As for the worthy judge, it is manifest that
| the point now under consideration received no
consideration at his hand. In the extract you
quote he was pleading for the right of trial by
jury, and throughout hio elaborate opinion, SO
far from endeavoring to discover what rights
were saved to the fugitive under the law he
was intent on showing that it failed to deprive
him Of any.


As have not shadow of doubt on the sub-
ject, cannot spare the time to search for au-
thorities, but, as write for the purpose of cor
recting what believe to be a misapprehension
Of the effect of the law, and as it happens that
have at hand the deliberate opinion, on the
particular point in dispute Of one of the abest
and purest judges who has ever adorned the
American bench, and one who has been called
to decide cases under this law more frequently
than ony other judge in the country, cannot
refrain firm referring to it. You will find that
he rules every point that have been consider
ing against you.


In the case of Miller Us. McQae,ry 5h Nc
Lean Rep. 484, in speaking of the nature Of the
proceeding and the right Of the party ARE sled
to give evidence where the claimant does not
produce the transcript Of a record &C., Judge
Mclean says: "This is represented TO be an ca
parte proceeding. II does not bear this character
Had it been represented to me that the fugitive
could produce evidence conducting to prove that
he did not owe service to the claimant, time
would have been given to produce the evi
dence."


In speaking of the right of the person arres-
ted to adduce evidence on the question of iden.
tity where the claimant produced the transcript
Of record, he says: "lf it (the record) were
produced, the identity of the fugitive would
still be an open question On the question o
identity, anything which conduced to prove that
the person described in the judgment was not
the one before the judge or commissioner, wo'd
not be admissible"


Very respectfully yours,
r. C. HURD.