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of judicial investigations, to ascertain whether the complaint be well founded, or the claim of ownership be established beyond all legal controversy. In cases of suspected crimes, the guilt or innocence of the party is to be made out at his trial, and not upon the preliminary inquiry, whether he shall be delivered up. All that would seem, in such cases, to be neces sary, is, that there should be prima facie evidence before the executive authority to satisfy its judgment, that there is probable cause to believe the party guilty, such as upon an ordinary warrant would justify his commitment for trial. And, in the cases of fugitive slaves, there would seem to be the same necessity of requiring only prima facie proofs of ownership, without putting the party to a formal assertion of his rights by a suit at the common law. Congress appear to have acted upon this opinion, and accordingly, in the statute upon this subject, have authorized summary proceedings before a magistrate, upon which he may grant a warrant for removal."

This passage occurs in Story's exposition of the provision itself. He does not refer to the question which arises on a comparison of the Acts of Congress with the guarantee in the Amendment, and does not offer to show, by any interpretation or construction, that this view was "contemplated." He merely cites the earlier authorities.

In Sergeant's Constitutional Law, 1st ed., 387, 2d ed., 398, the author says on this point only: "From the whole scope and tenor of the Constitution and Act of Congress, it appears that the fugitive is to be delivered up on a summary proceeding, without the delay of a formal trial in a court of common law." If this is intended as an exposition of the constitutionality of the Act of Congress, the only argument it offers is in the affirmation that such is the "scope and tenor of the Constitution," independently of the Act.

933. With the views of these private writers may be classed the Opinion' written by B. R. Curtis, Esq., for the

This is one of the authorities referred to by Story in the passage cited from his Commentaries. They both cite Wright v. Deacon, 5 Serg. & Rawle, 62.

2 Mr. Curtis prefaced his examination of this objection by acknowledging the effect on his judgment of great existing weight of authority supporting the law of 1793, referring to 5 S. & R., 62; 9 Johns., 16, 67; 12 Wend., 12, 311, 307; 16 Peters, 622. He says, besides: "But, on reflection, [on the arguments offered against

U. S. marshal, from which a portion relating to the nature of the commissioner's action has been given, ante, p. 678, note. The portion here given is intended to apply to the question of jury trial. But it also exhibits very clearly how the two questions are connected, and bears quite as strongly on the

this authority,] I think if this were a new question, it could not be shown that the law contravenes this article of the Constitution.

"At the time the Constitution was formed, there existed in the jurisprudence of all the States (aside from suits in equity and admiralty) the trial of crimes, the trial of rights of persons and property between party and party, and judicial inquiries, summarily made, designed to accomplish some limited and special object, but not to try and finally settle the right in contestation.

"The Constitution, as originally adopted, contained a clause securing the right of trial by jury only in the trial of crimes. Its silence respecting the trial by jury in suits at the common law, and the appellate jurisdiction given to the Supreme Court, 'both as to law and fact,' were laid hold of by the enemies of the Constitution as strong reasons for its rejection, and, even after its adoption, formed no inconsiderable part of the grounds of opposition to the new government (4 Marshall's Life of Washington, 209, 210). To obviate these objections, the second article of the amendments, establishing further guards for the citizen in criminal prosecutions, and the seventh article, securing trial by jury in suits at common law, were adopted.

"I am not aware that it has ever been supposed by any one that these two articles had any reference to the third class of judicial inquiries above mentioned. That justices of the peace in the District of Columbia may commit to prison a person who, on a summary inquiry before them, may appear to be probably guilty of an offence, and thus deprive him for a time of his liberty; that the same thing may be done by magistrates in the States, for offences against the laws of the United States; that the Executive authority of any State to which a person shall have fled, on the requisition of the Governor of another State whence he fled, and the production of an affidavit made before a magistrate and properly certified, may deliver up the person charged with a crime by such affidavit; that the government of the United States, through its magistrates, may apprehend a fugitive from a foreign country, with which a treaty to that effect exists, and, upon a finding by such magistrate, may deliver him up to be transported to the country whence he fled, I suppose no one has doubted. And if this be so, then it would seem to follow that, besides the trial of crimes and suits at the common law, in both which a jury must intervene, there is a third class of judicial inquiries, and executive action thereon, in which the Constitution does not require a jury. Under this view, two questions arise:

"1st. Whether, in point of fact, the proceeding before the commissioner, under the statute of 1850, is a judicial inquiry, to be summarily made, designed to accomplish some special and limited object, but not to try and finally settle the right in contestation; and

"2d. Whether, if it be so, Congress had the constitutional right to adopt and apply such a proceeding to the case of a fugitive from service, and grant the aid of the executive power of the United States upon the result of such a summary proceeding.

This first question must be answered by an examination of the Act in question, and the Act of 1793, which is in pari materia, which the Act of 1850 was intended to amend, and to which it is supplementary. The Act of 1793, in the 1st and 2d sections, makes provisions for fugitives from justice, and empowers the agent appointed to recover the fugitive, to transport him or her to the State or territory from which he or she shall have fled. The 3d and 4th sections have reference to fugitives from service, and enact, that the certificate given to the claimant or his agent shall be sufficient warrant for removing the said fugitive from labor to the VOL. II.-46

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first question as does the extract already given. Although the force of judicial opinion cannot be claimed for it, the argument is entitled to great consideration, as being, probably,

State or territory from which he or she fled.' It seems to me that the object of each of these sets of provisions was simply extradition. A certificate given by a magistrate, upon a summary inquiry, has no definite legal effect necessarily attached to it by the general principles of jurisprudence, and it must have one effect or another, according to the enactments which provide for it. Whatever effect the statute gives to it, it may possess-but nothing beyond this. And when this statute says it shall warrant a removal, it seems to me to be a very strained interpretation, which should attribute to it any other effect. I conclude, then, that the sole purpose of this law was extradition. If so, there is certainly a presumption at the outset that the Act of 1850, made to amend this law, had the same object in view. I perceive nothing in this Act of 1850 which leads to the conclusion that anything beyond this was intended. The 6th section declares that the certificates shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever. The whole of this taken together, I think, means that, for the purpose of removal, the certificate shall be conclusive, and no court, &c., shall do anything to prevent such removal. But having declared that the certificate shall be conclusive for this particular and limited object, it follows that it is not conclusive for any other, for it derives all its effect from the enactment, and here the enactment stops. And this conclusion is made necessary to my mind, when I find that the fact of service being due, and the fact of escape from service, may be conclusively proved before the magistrate, for the purpose of obtaining the certificate, simply by the produc tion of the record of a court in the State whence the fugitive escaped, which record is to be made on ex parte testimony. To attribute to Congress an intention to allow the claimant to make proof by ex parte testimony of two, out of three, of the material points to make this proof conclusive for the purpose of obtaining the certificate, and then to make the summary hearing operate as a trial settling the right, seems to me not to be warranted by anything found in this law. I am led by the whole structure of the Act, as well as by a detailed examination of the language of particular parts of it, to a clear opinion, that the proceeding before the commissioner is a summary judicial inquiry, terminating in a special and limited object, viz.: extradition, and is not a trial and final settlement of the right in contestation. It is true the laws of the United States make no provision for any further trial. Neither do they in any case of extradition. The Parliament of Great Britain may suspend the habeas corpus, and keep imprisoned without trial a person given up; or pass a bill of attainder, and put him to death. Indeed, from the very nature of the case, the person given up is to be tried by the laws of the State or country to which he is restored, and it is for those laws to make provision for that trial. I do not mean to say that the government which makes extradition may not make conditions. But it seems to me no argument, that these proceedings were designed for a trial of the right, can be drawn from the fact that no conditions for a future trial are made. The only just inference is, that in this, as in other cases of extradition, the United States had confidence that justice would be done under the laws of the State to which the fugitive should be restored.

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'If, then, in point of fact, this proceeding before the commissioner is summary, designed only for a particular and limited object, and does not try or finally settle the right in contestation, the inquiry still remains, whether Congress had the constitutional right to grant the aid of the executive power of the United States, upon the result of such inquiry.

"The Constitution declares that, upon claim being made by the party to whom the service is due, the fugitive shall be given up. The Supreme Court has decided that Congress may legislate in aid of the execution of this requisition of the Constitution. It is not said by the Constitution how this claim shall be made. It is,

the most complete on this point of any that have been offered in support of the Act of Congress.

§ 934. From the foregoing exhibition of opinions on the question, whether the Acts of Congress, by providing for removal of the escaped slave without trial of the facts at issue by a jury, are in violation of a constitutional guarantee, it appears that those supporting the negative may be discriminated, like those on the former inquiry,' as, first, those which thus determine by reference to the authority of earlier cases, and, second, those which determine it by independent reasoning; and that here, as in the former instance, the greater number of opinions are in the first class, and that here also many judges carefully avoid the expression of their individual opinion, and declare themselves to be following the earlier decisions, sometimes even intimating a misgiving as to their correctness.

therefore, a subject of legislation how it shall be made. It is not said how it shall be determined; and it is, therefore, left to legislation how it shall be determined. The legislation must conform itself to any constitutional restrictions, if any such are to be found; but where can they be found? It will not be enough to say that the personal liberty of the citizen is a common-law right, and therefore it cannot be interfered with without a suit at common law, and in that a jury must intervene; for it is not true, that the personal liberty of the citizen can not be restrained without a suit at common law; and if it were, slaves are not parties to the Constitution, nor under its protection.

"If it be in the power of Congress to provide for the giving up of fugitives from justice without a trial by jury, which has been practiced on by the States for more than half a century, and never doubted, it seems to me the power is even more free from doubt in the case of a fugitive from service. Fugitives from justice may be, and often are, citizens, and under the protection of the Constitution, and entitled to the benefit of its provisions; fugitives from service, when slaves, are not thus entitled. Fugitives from justice cannot be seized and carried away without some inquiry and legal process; fugitives from service may be taken anywhere, by those having a legal claim, and by force of the legal title carried from the State. If it be said that a person may be seized, and, after this summary inquiry, carried away, who is not a fugitive from service, and thus a citizen may be temporarily, and perhaps finally, deprived of his liberty, because he may not find means to defend himself where he is carried; it may be said also that a person may be carried away, who is not a fugitive from justice, and may be unjustly and oppressively dealt with in the place to which he is transported. The truth is, the Constitution has in view neither of these cases. It provides great general rules and powers, leaving to legislation to guard and limit the practical application of those powers, so that injustice shall not be done; and if opportunity is given for injustice, it is the fault of the Legislature, who have not wisely exercised their powers, but by no means proves that the action of the Legislature exceeds its powers. If, then, the Constitution leaves it to Congress to determine how the claim shall be made, evidenced, and determined, upon which the fugitive shall be given up, I cannot perceive why this summary inquiry by a Commissioner is not constitutionally sufficient, however preferable you or I might consider some other manner of proceeding to be."

1 Ante, p. 679.

The arguments found in the second class of opinions are distinguishable as—

1. That which assumes a parallelism between the delivery of the alleged fugitive slave to the claimant, and the delivering up of a fugitive from justice, and find an argument on authority in the customary acquiescence in the latter.

2. That argument which lies in the proposition that, admitting the general application of the objection to such an exercise of power on the part of the national authority, a summary proceeding, as an exception, is specially contemplated by this provision of the Constitution.

3. The argument that, admitting the general application of the objection, the guarantee does not apply in the case of a person claimed as a fugitive from labor, because slaves were not, or are not, "parties to the Constitution."

4. The argument that, the delivery to the claimant is not a being "deprived of liberty without the process of law," because it is preliminary or ancillary to some ulterior due process of law whereby the right to liberty will be determined; or the argument that it is an extradition, as opposed to a suit at law, or at common law.

5. That which may be called the argument from necessity. 935. 1. As to the first argument, that which has already been said in respect to the same argument, urged in the former instance,' will apply here to show that the parallel does not exist, and the difference between the two acts of delivery will be noticed hereafter in connection with the fourth argu

ment.

§ 936. 2. The argument comprehended in the proposition that a summary proceeding is specially contemplated in the constitutional provision, as ordinarily stated, and as stated by Judge Story in sec. 1812 of his Commentaries, is simple assertion. The question being-is a summary proceeding, or one without the verdict of a jury, sanctioned by the Constitution? the argument is-such a proceeding was contemplated, or is indicated in the provision itself,—therefore, sanctioned. Now, since it is not shown where or by what words in the pro

1 See ante, § 906.

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