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CHAPTER XXX.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE LEGISLATION OF CONGRESS IN RESPECT TO FUGITIVES FROM LABOR. THE SUBJECT CONTINUED. OF THE VALIDITY OF THAT LEGISLATION IN VIEW OF A GUARANTEE, IN THE CONSTITUTION, OF TRIAL BY JURY, AND OF OTHER PROVISIONS OPERATING AS A BILL OF RIGHTS.

§ 918. The questions which next present themselves, in considering the means provided by Congress for carrying into effect the provisions of the Constitution for the delivery of fugitives from labor, as stated in a former chapter,' relate to—

2. The remedial process by which the demand or claim is to be presented, the proofs on which its legality is to be decided, and the method in which the delivery to the demandant or claimant is to be carried into effect.

The question which will first be considered is, whether the Acts of Congress of 1793 and 1850, or either of them, by providing for the removal of the persons claimed without submitting the facts at issue to the decision of a jury, is in violation of any guarantee in the Constitution operating as a Bill of Rights.

In the public and private discussions which have arisen in respect to the execution of the constitutional provision, it has been urged that such trial is required by the declaration, in the fifth article of Amendments, that "no person shall be deprived of life, liberty, or property, without due process of law," and that in the seventh article, that, "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.'

919. To say nothing of the actual legislation of Congress

1 Ante, p. 607.

as authority against the objection, every case in which an alleged fugitive from labor has been delivered up, as provided in either Act of Congress, by a judge holding the judicial power of the United States, or the concurrent judicial power of a State, and every case in which the delivery of such alleged fugitive by a United States commissioner, as provided by the law of 1850, has been sanctioned by a national or State court, is an authority that these guarantees have not been violated by such legislation. These constitutional guarantees, it will be remembered, operate only against the exercise of power derived from the national source.' The judges of State courts acting in any of these cases, as provided by the law of Congress of 1793, derived their authority from the State, and not from the United States. Hence, such action by a State judge does not have the same force as a precedent in this inquiry. Still, the powers held by the State judiciary must have been limited by similar provisions in the State constitutions, and hence their action in these instances may be received as an exposition of constitutional law in a parallel question. In many of these instances, too, it is probable that the State judges did not actually discriminate whether their powers in the premises were derived from the State or from the United States. If the true doctrine is that the "State magistrates," acting according to the law of 1793, exercised power derived from the national source, the cases in which such officers have acted are direct authority.

§ 920. It might, at the first view, appear that the opinions in which the claimant's right to seize and remove a fugitive out of the State into which he may have escaped, without any proceeding under either Act of Congress, has been affirmed, are also authority against the applicability of these guarantees in cases arising under the legislation of Congress. But if any right of the claimant in respect to the escaped slave has been given by the Constitution itself, and does not owe its existence to the legislation of Congress, it would seem that such right could not be affected by those guarantees of the Constitution which limit the national Government in its several functions. It is not claimed by any that the right to seize and remove the

1 Ante, § 425.

fugitive without a certificate is given by the legislation of Congress. These cases, therefore, are not authority in the present inquiry.'

§ 921. In this inquiry, the cases under the law of 1793 are of the greater importance, since they are relied upon almost exclusively in deciding the question under the later Act. The bearing of those cases upon the question under consideration is, however, very unequal.'

In Wright v. Deacon (1819), 5 Serg. and Rawle, 62 (ante, p. 438), the question directly before the court was of the validity of the statute of Pennsylvania providing a trial by jury in these cases. The question of the effect of the fifth and seventh articles of the Amendments to control the power of Congress does not appear to have been directly presented to the court. But Tilghman, Ch. J., expressly declared that the Act of Congress of 1793 was not unconstitutional in not providing a jury trial, saying, ib. 64, "It plainly appears, from the whole scope and tenor of the Constitution and Act of Congress, that the fugitive was to be delivered up on a summary proceeding, without the delay of a formal trial in a court of common law." To this Judge Tilghman adds a statement which, in subsequent instances, has been enlarged upon as a judicial denial of the assertion that a delivering up of an alleged slave to the claimant under the statutes of 1793 and 1850 is a determination of the rights of the parties under the national law without the test of a trial by jury. The judge said: "But if he had really a right to freedom, that right was not impaired by this pro

The question remains-whether these guarantees do not modify whatever power private persons may derive from the Constitution, and so limit the rights given by the fugitive-slave provision to the owner. This is subordinate to the question of the construction of that provision, because it can only arise on adopting the fourth construction. This question has not been here examined, because, on other reasoning, the conclusion has been against the doctrine that the owner's right in respect to the fugitive is the same as in the State from which he escaped. See ante, p. 580, n. 1. In 9 Oh., 173, Mr. Wolcott argues that these guarantees do apply against seizure and removal by the claimant.

2 In Butler v. Hopper (1806), 1 Wash. C. C., 500, ante, p. 409, Commonw. v. Holloway (1816), 2 S. & R., 305, ante, p. 412, and Ex parte Simmons (1823), 4 Wash. C. C., 396, ante, p. 409, the question was only of the personal extent of the provision, and the party claimed was not delivered up. In Glen v. Hodges (1812), 9 Johns., 67, ante, p. 438, the question was only of the right to seize, either for removal or making a claim; the debt of service seems not to have been disputed. But the court may have thought that the question at issue involved the constitutionality of the entire Act.

ceeding; he was placed just in the situation in which he stood before he fled, and might prosecute his right in the State to which he belonged." But this admission that the person claimed as a fugitive from labor is, by the operation of the Act, "placed just in the situation in which he stood before he fled,” is, in itself, a recognition that the rights of the parties under the national law are decided without the test of a trial by jury. The utmost effect that can be given to the owner's claim under the provision is to place the fugitive just in the situation in which he stood before he fled.'

§ 922. In Jack v. Martin (1834), 12 Wend., 311–14, ib. 507 (ante, p. 446), the question of the constitutionality of the Act of Congress was involved, as well as that which was principally examined by the Supreme Court, viz., whether the State had either exclusive or concurrent power to legislate in carrying the constitutional provision into effect. The constitutionality of the Act of Congress, in respect to the guarantee of jury trial, appears to have been fully discussed on the argument, or, at, least, on the argument before the Court for the Correction of Errors; see 14 Wend., 515, 521. But, in the opinion of the court below, little notice was taken of the question, and the Court for the Correction of Errors declined to express any opinion on the constitutionality of the Act of Congress. Judge Nelson's language, even in supporting the legislation of Congress, is, in this connection, very remarkable. He said, 12 Wend., 324: "It has been said that, under the law of 1793, a free citizen might be seized and carried away into captivity, and hence the necessity of the law of the State giving him a trial by jury upon the question of freedom. This argument is

In Hill v. Low (1822), 4 Wash. C. C., 327, the action was for the penalty for obstructing the plaintiff in arresting the supposed fugitive for the purpose of bringing him before a magistrate; ante, p. 630. In Commonwealth v. Griffith (1823), 2 Pick., 11, the question was only of the right of seizure without a warrant. The arguments of Judges Parker and Thacher on that point have, however, a bearing on the present question; see ante, p. 552. In Worthington v. Preston (1824), 4 Wash. C. C., 461, the action was against the jailor for escape of a slave placed in his custody by a claimant, who had obtained a certificate under the statute. But, as the jailor was held not responsible, the validity of such a certificate was not affirmed; ante, p. 630. In Fanny v. Montgomery (1828), 1 Breese, 188, there was no decision bearing on this question; ante, p. 631, note. In Johnson v. Tompkins (1833), 1 Bald. Č. C., 571, there was no certificate on claim, and the rights of the parties were determined by the State law, or by the provision in the Constitution, irrespectively of the Act of Congress. See ante, p. 441.

plausible, and the justice of it difficult to deny ; but, sound as it is, it tends only to prove the defectiveness of the law of Congress, not the authority of the State. It would be appropriate and pertinent, when urged before that body, to effect an amendment of the law; but it would be a most sweeping and dangerous position, if sufficient to justify the authority to amend it by State legislation." Judge Nelson here seems to hold that a court may admit that an Act of Congress is unconstitutional, and yet recognize the legality of the action prescribed by that Act, because the State has no power to supply deficiencies in the legislation of Congress. In his further answer to the same objection (after an argument from the undisputed surrender of fugitives from justice) Judge Nelson seems to argue that a State judge should not examine into the validity of an Act of Congress, because the national judiciary has the power to correct injustice or error committed by the subordinate court or magistrate who, in the first instance, is called upon to apply the law of Congress. He says, 12 Wend., 325: "If the magistrate should finally err in granting the certificate, the party can still resort to the protection of the national judiciary. The proceedings by which his rights have been invaded being under a law of Congress, the remedy for error or injustice belongs peculiarly to that high tribunal.' Under their ample shield, the apprehension of captivity and oppression cannot be alarming." According to this reasoning, the State judiciaries should never examine into the validity of an Act of Congress.

In his Opinion, in the Court for the Correction of Errors, Chancellor Walworth assumed, as admitted, that the negro claimed in this case did owe service, and had escaped. But he said, 14 Wend., 525: "But suppose, as is frequently the case, that the question to be tried relates merely to the identity of the person claimed as a fugitive slave or apprentice, he insisting that he is a free, native-born citizen of the State where

1 How is this assertion consistent with the doctrine that the magistrate exercises special authority, see ante, pp. 618, 619, notes; or with the doctrine of Barry v. Mercein, 5 Howard, 103, that no appeal lies to the Supreme Court from a decision on habeas corpus, in the Circuit Court, or that of Metzger's case, ib. 176, that no appeal lies from a decision of a judge at chambers?

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