law of the land, or the judgment of his peers. The words, law of the land, as used in Magna Charta in reference to this subject, are understood to mean due process of law; that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of these words.'

"[67] We are aware that it has been said that slaves are not persons in the sense in which that term is used in the Amendment to the Constitution above referred to. But this, admitting it to be true, does not affect the question under consideration, as persons who are free are liable to be arrested and deprived of their liberty by virtue of this Act, without having had a trial by a jury of their peers. We do not propose to discuss the question, whether a slave escaping from the State where he is held to service or labor, into a State where slavery does not exist, thereby becomes free by virtue of the local law, subject only to be delivered up to be returned again to servitude, as it is a question not necessarily involved in the consideration of the subject before us. But we propose to examine the operation of the Act upon a free citizen of a free State, and to show that by it such a person may be deprived of his liberty without 'due process of law.' It will be observed that the claimant can go 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 service or labor to such party. It then becomes the duty of the court to cause a record to be made of the matters so proved, and also a description of the person escaping, and such record, being exhibited to any judge, commissioner, or other officer authorized 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 labor 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 [68] opportunity to cross-examine the witnesses who depose to the facts which are thus conclusively proved; but without his knowledge evidence is manufactured,

which, by virtue of this Act, proves beyond question that he is a slave and that he has escaped from servitude. We are at a loss to perceive how this proceeding, by virtue of which a freeman becomes a 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 question of freedom or slavery, that the fugitive is only sent back to the State from which he is alleged to have escaped, and that when he reaches there he is a freeman or a slave as his status shall be determined by the local law. It is further said that these proceedings are analogous to those by which the fugitive from justice is delivered up to be taken to the State from which he has escaped; that a person may be arrested by virtue merely of an indictment or an affidavit made before a magistrate, charging him with treason, felony, or other crime committed in some other State, and that upon the production of a copy of the indictment or affidavit certified as authentic by the governor or chief magistrate of the State or Territory from which he had fled, he shall be delivered up to be taken back. It 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 or 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 [69] to the State where, as is claimed, he owes service or labor by force of the local law. We think this a mistaken view of the question. The fugitive from justice is delivered to an agent appointed by the 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. In his case there is an adjudication before the commissioner that he owes service or labor, and that

WHITON AND CRAWFORD, JJ., IN BOOTH'S CASE. 715

he has escaped. By force of the Act of Congress under consideration, the record made in the State from which he is said to have escaped is conclusive evidence that his status is that of a slave.

"The commissioner is obliged, if his 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 service or labor is said to be due. He may regain his freedom; but, if he does, it will be by force of the law of the State, and not by virtue of the Act of Congress under consideration; for under that he has been adjudged a slave, and by force of it he has been taken as a slave by the person adjudged to be his owner, his agent or attorney, from the State where he was arrested, to the State from which he is alleged [70] to have escaped. We are, therefore, obliged to conclude that the alleged fugitive from labor is taken back to the State from which he is said to have escaped, as a person who has been proved and adjudged to be a slave, and, as we believe, without due process of law, without having his rights passed upon and determined by a jury of his peers. We think it essential that his right should be maintained by all courts and all tribunals, and for the reasons above given we must affirm the order made in this case, discharging the relator."

§ 929. The remarks of Judge Crawford, 3 Wisc., 83-85, dissenting from his associates on the question of the validity of the Act of Congress in this respect, are given in the note.'

1 3 Wisc., 83:—“The right of trial by jury is highly and justly esteemed, and is expressly protected and preserved by our State constitution; and it cannot be denied that this right extends to all persons within the State, regardless of color, and to the fugitive from labor or slavery as to the freeman, in all that relates to or affects his life, liberty, or property, subject to the several provisions of the Constitution of the United States. But suppose that a demand by the executive of any other of the States of this Union upon the Governor of this State has been made, to surrender any citizen, whether he be white or black, upon a charge of felony committed in the State from which the requisition comes. It may be that, as in the case of an unfounded claim upon the labor and service of the alleged

They are only a repetition of the arguments advanced in earlier

cases.

§ 930. In the cases of Bushnell and Langston, 9 Oh., 177, this question was not considered material by the majority of the court. Judge Swan does not examine it at all. Judge Peck, immediately after a passage already cited,' in which he affirms the question immaterial in that case, asks (ib. p. 213): "But is it true that those provisions are so clearly unconstitutional as to authorize this court to pronounce them, and the law in which they are incorporated, invalid? This is certainly not the case if the repeated decisions of the Supreme Court of the United States," &c., referring to Prigg's case and Booth's case. "Nor are we," he adds, "without decisions of the highest State tribunals to the same effect," citing particularly the words of Judge Tilghman in 5 S. & R., and Judge Shaw's opinion in Sims' case, and mentioning other cases, together with 2 Story's fugitive slave, the person demanded as a fugitive from justice ought not to be delivered over; and yet, if the requisition be in due form of law, and accompanied by the proper evidence that the person is charged with the offence, the right of trial of the fact is not afforded to him here; but he is apprehended, deprived of his liberty, and transported to another and perhaps a distant State for trial. Could this be done except by virtue of a provision of the Constitution, or a treaty? There would seem to be no real difference between the demand of a fugitive from justice, and the claim of a party to whom it is alleged labor or service is due.

"In either case there is a deprivation of personal liberty without the intervention of a jury; but it is considered essential to the complete enforcement and fulfillment of the constitutional compact, that a temporary deprivation should be permitted in the individual case, in order that the constitutional right may be secured. It is true that, in the case of a fugitive from justice, he is given into the custody of the officers of justice, with the beneficent presumption of the law in favor of his innocence, until he shall have been duly convicted; while, in the case of the fugitive from labor, he is placed under the control of his claimant, to be carried back to the State from which he is charged to have fled, with no presumption in favor of his freedom; but this is, I think, more an argument against the policy and justice and humanity of the law, than against its constitutionality. A case might arise where, by false swearing and conspiracy, a freeman, by the machinery of this law, might be snatched from his liberty and reduced to the condition of slavery, until, by a suitable proceeding, he asserted and obtained his freedom; but so, also, by similar means, an innocent man may be carried away, charged with crime, and placed under the necessity of vindicating his innocence in a distant State."

Here the judge cites from Story's Commentaries, and from Sergeant's Consti tutional Law, the passages which are given post. § 932. He then adds:

66

Assuming that the framers of the Constitution had in view the cases of fugitive slaves only, and that their object was to secure the delivering up of such fugitives on claim of the owner or person to whom the labor is due, it would seem obvious that, if a trial by jury may be insisted upon, the determination of the question might be protracted in various ways, so as to defeat the very object of the constitutional provision."

1 Ante, p. 569.

Comm., §§ 1811, 1812, and Sergeant on Const. Law, 398, as sustaining the validity of the law against this objection. Judge Peck relied apparently on this authority entirely.

Judge Brinckerhoff, in his dissenting opinion, does not discuss this point. On page 222 of the report he says, however, that the person who had been rescued had been "deprived of his liberty without due process of law," contrary to the fifth Amendment.

Judge Sutliff, on page 246, referring to the same Amendment, argues that "the phrase was understood then, as it had long before and has ever since been understood, to mean, in its legal acceptation, a suit instituted and conducted according to the prescribed forms and usages of courts of justice for ascertaining guilt and determining title. No one then understood, and no one now understands, the phrase to be of less comprehensive import."

"Article 7," he adds, "provides that in suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be inviolate. And it may properly be held that a person's claim to his liberty, or a claim for his future services for life, is a claim of sufficient magnitude to give the right of trial by jury under this provision of the Constitution.

"Previous to and at the time of the adoption of the Constitution it is said that the common-law writ, de homine replegiando, for the purpose of trying the right of the master to the service of the slave, was well known to the laws of the several States, and was in constant use for the purpose, except so far as it had been superseded by the more summary proceeding by habeas corpus or by local legislation.

"If, then, it should be said that the provision in the Constitution, 'no person held,' &c., contemplated a summary surrender and extradition, the answer is at hand. In the first place, there is nothing in the language of the provision, or in its subject matter, contemplating a summary proceeding; but, on the contrary, from the language and object of the provision, it is evident that no surrender is promised or contemplated by the provision until the case provided for is shown; that is: 1st.