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§ 952. If the validity of these Acts of Congress is to be admitted, other practical questions may present themselves in reference to the remedial process by which the claim is to be presented, the proofs on which its legality is to be decided, and the method in which the delivery to the claimant is to be carried into effect. So far as these questions are not dependent on the general law of evidence, they are mainly questions of formal proceeding, and determined by the language of the statutes themselves, and may be passed over without any par ticular consideration.'

953. The third and only remaining inquiry, in considering the means provided by Congress for carrying into effect the provision for the delivery of fugitives from labor, relates to—

3. The penalties by which rights and obligations created by the provision, or by ancillary legislation of Congress, may be secured and enforced."

The fourth section of the Act of 1793 gives a penalty, for the benefit of the claimant, of five hundred dollars for the acts of obstructing or hindering the claimant in arresting the fugitive, or of rescuing the fugitive after arrest, or of harboring and concealing after notice;' saving, moreover, to the claimant, his right of action on account of these injuries.'

The seventh section of the Act of 1850 declares that the person who may commit these acts shall forfeit and pay, by way of civil damages, to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost

Administrator of deceased owner may claim and may appoint agent to claim under the Act of 1793, Commonw. v. Griffith. 2 Pick. 18. Letter of attorney is not required for that appointment. Ib. So is Giltner v. Gorham, 4 McLean, 402. But contra apparently is Driskell v. Parish, 3 McLean, 631.

As to what acts will constitute the illegal conduct intended, see Hill v. Low, 4 Wash. C. C. 329; Jones v. Van Zandt, 2 McLean, 596, S. C., 5 Howard, 215; Driskill v. Parish, 3 McLean, 631, S. C. 5 ib. 64; Giltner v. Gorham, 4 McLean, 402; Ray v. Donnell, et al., ib. 505; Norris v. Newton, 5 ib. 92; Weimar e. Sloane, 6 ib. 259; Van Metre v. Mitchell, 2 Wallace, Jr., 311, which were actions for the penalty. Also, Glen v. Hodges, 9 Johns. 67; Kauffman v. Oliver, 10 Barr, 517; Oliver v. Weakley, 2 Wallace, Jr., 324, which were actions for damages. By 2 Wallace, Jr., 326, under the Act of 1793, if the plaintiff sues in debt for the penalty of $500, which it gives for illegally harboring and concealing, he may recover it upon proof of such harboring and concealment, irrespectively of any proof of actual damage to himself. But if he brings case on account of the injuries for which the Act saves a right of action, he can recover only to the amount of actual damage which he shows he has suffered.

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as aforesaid, to be recovered by action of debt, in, &c. No saving is made of any other right of action, and it would appear that no civil remedy was intended to be given for any damage which might occur to the claimant by such conduct, unless the fugitive should thereby be enabled finally to elude his pursuit. Whether it is within the competency of Congress to limit the amount of compensation for actual damage where the fugitive has been placed beyond recovery, and whether the claimant can, independently of legislation, recover civil damages in that case or in cases in which he has been delayed and obstructed in his pursuit, though finally successful-would appear to depend upon the question, whether the rights of the claimant to recover his slave are such only as exist by the legislation of Congress, or are conferred by the Constitution itself. This, again, will depend upon the true construction of the provision. The maintenance of any action for damages irrespectively of the penalty given by either Act, seems to support the fourth construction of the provision, by which it operates as private law.

If the right to damages exists under the provision itself, operating as private law, it would seem that the action might be brought in the State courts; for the national municipal private law contained in the Constitution is part of the law of each State. This view may be sustained by Glen v. Hodges, 9 Johns. 67, ante, p. 438. But in Kauffman v. Oliver, 10 Barr, 516, ante, p. 494, the court, even while it affirms that the claimant, under the provision, may seize and remove the fugitive, denies that he has any remedy except such as may be given by the legislation of Congress.' The same doctrine may have been held in Jones v. Van Zandt, 2 McLean, 596, 601.'

954. The Act of 1850 differs from the earlier statute also, by declaring, in the seventh section, such illegal conduct punishable by fine and imprisonment.'

'Judge Coulter, in this case, appears to have understood Prigg's case as deciding that the whole subject matter is removed from the whole juridical power of the State, that neither the judiciary nor the legislature can notice any right under the provision.

In Johnson v. Tompkins, 1 Bald. 571, ante, 441, the action was for damages; but the right of action appears to have been supported by the law of the State.

'Campbell v. Kirkpatrick, 5 McLean, 175,-that the action for the penalty and the prosecution can only be brought in the United States District Court, and cannot be removed into the Circuit. As to what is rescue, &c., see Scott's case, IV.

It may appear very reasonable to say that, whether a right of a private person is given by the Constitution itself, operating as private law, or by the legitimate exercise of the legislative power of the national Government, it will be in the power of Congress to protect that right by fines not "excessive," and by punishments not "cruel and unusual."1

If the power of legislation in reference to the subjeet-matter of this provision is based upon the theory herein before relied on, Congress cannot do more than is necessary to maintain the exercise of the judicial power of the United States, in reference to the cases which arise under these provisions, according to the fourth construction."

Under the theory advanced in Prigg's case, supporting a power in Congress to legislate for the general object of carrying these provisions of the Constitution into effect, it would be very easy to educe the power to punish the conduct declared by these statutes to be unlawful.

It has been seen that, according to some authorities, the fugitive from labor, by the effect of the provision, is in the same status as in the State by whose laws he was held in bondage.

Mon. L. R. 159, and the indictments of Booth and Rycraft, given in 3 Wisc. 183; and of Bushnell and Langston, in 9 Oh. 77. The cases, United States v. Morris, 1 Curtis, 23, and United States v. Stowell, 2 ib. 153, were under other statutes, for obstructing the officer in executing legal process.

19 Oh. 215, Peck, J. :-" It is claimed that the law is unconstitutional because it interferes with the local police regulations of the State, and imposes severe pains and penalties upon citizens of the State where the fugitive is apprehended. These questions have not, that I am aware, been raised heretofore; but are, in my judgment, very easily answered. It, after all, resolves itself into a mere question of power in Congress to legislate at all, in regard to the reclamation of fugitives from service. If Congress has the power to regulate, by law, the demand and delivery of the alleged fugitive-to enforce the right of the owner and prohibit interference by others-it must necessarily follow that, to the extent deemed necessary for the enforcement of the right and its corresponding duty, Congress may constitutionally interfere with local police regulations of the several States, and, to render their regulations effective, must, necessarily, have the constitutional power to impose fines, imprisonment, and other sanctions upon a violation of the enactment."

2 So, if Congress has power to legislate in reference to carrying into effect the 1st clause of the 2d section of the 4th Article, which relates to the privileges of citizens of the several States, it would be in harmony with this view to say that such legislation must be confined to the application of the judicial power in cases arising under that clause. Can Congress undertake to pass penal statutes to protect citizens of each State in the enjoyment of the rights guaranteed by that clause? The general statement, ante, § 863, may be modified in view of this sec

By combining this doctrine with the doctrine (if it is to be admitted) that a right given to private persons by the Constitution, operating as private law, may be guarded by the remedial legislation of Congress, it would easily follow that Congress has the power to enact any law suitable for the recovery of fugitive slaves; and if it is also conceded that Congress may, by penal legislation, protect rights given by the Constitution, it would appear that Congress may go far towards re-enacting the various provisions of the slave codes of the slaveholding States, making a law of national extent, operating wherever a fugitive slave might be found.

But according to the view herein maintained, the provision only gives the person to whom the service is due a right to have the fugitive delivered up to him on claim made before public authority.' There is no right, then, to be protected, except as claim is made. Congress cannot organize a system for the return of fugitives without regard to claim made by their masters.

§ 955. In estimating the weight of judicial authority on the several questions considered in this chapter, it is to be remembered that the Supreme Court of the United States, in Ableman v. Booth (ante, p. 523), affirmed the Act of Congress to be, "in all its provisions, fully authorized by the Constitution of the United States.""

§ 956. In answering the principal objections taken against the law of 1850, the argument from a supposed long acquiescence, on the part of the people of the non-slaveholding

The argument-the right of the claimant is given by national law, therefore it may be enforced by the legislation of Congress is not uncommon, though it is not the received argument. It was, in fact, Mr. Clay's. See ante, p. 532. 2 Ante, § 816.

The opinion of Mr. Webster, as against the existence of power in Congress to legislate on the subject, has been cited ante, p. 533. The bill to amend the law of 1793, introduced by Mr. Webster in the Senate, June 3, 1850, provided for a trial by jury in the State in which the fugitive should be found. See 5 Webster's W. 372. But, in his speech to the Young Men of Albany, May 28, 1851, 3 Webster's W. 596, he maintained the validity of the law of 1850, though entirely on the ground of authority:-"Everywhere, on all occasions, and by all judges, it has been held to be, and pronounced to be, a constitutional law. All judicial opinions are in favor of this law. You cannot find a man in the profession in New York, whose income reaches thirty pounds a year, who will stake his professional reputation on an opinion against it. If he does, his reputation is not worth the thirty pounds."

VOL. II.-48

States, with the law of 1793, as distinguished from judicial authority strictly so called, has often been insisted on. In estimating the force of this argument, it should be remembered that, when that law was enacted, slavery was lawful in almost every one of the States of the Union, and that in every such State delivery on claim might have been under the authority of the local or State law, independently of the authority of the Act of Congress, but substantially in the form authorized by that Act. This local law for delivery of fugitives might have been judicially supposed to continue as customary law, even when in such a State the local slavery had ceased; and, in many of the cases in which a fugitive has been delivered on claim before a State judge or magistrate, the authority exercised may have been deemed to proceed from the State fulfilling a duty arising under the provision, according to the first construction.

If this argument, from long acquiescence, is advanced to support the power of Congress to legislate on the subject, it should be remembered that, as the powers of the Government are given by a written Constitution, no department can acquire power by prescription: for the Constitution is continuously promulgated, that is, at any one time it derives its authority from the then existing people of the United States.'

$957. The argument, for the validity of the Acts of Congress of 1793 and 1850, which lies in asserting the necessity of such legislation' may apply to any of their provisions. But it has been principally urged in supporting the action of the State magistrates and United States commissioners, and the summary proceeding without jury.

It is impossible that any argument, properly so called, in favor of the constitutionality of this legislation, can be founded on any supposed degree of necessity. It is, essentially, the justification of an admitted violation of the Constitution,

1

Thus, in Pennsylvania, at the date of Respublica v. Richards, 2 Dallas, 224, and of Johnson v. Tompkins, 1 Baldwin's C. C. 571, the claimant could have, under the law of the State, all the remedy that he could have under the Act of Congress. See ante, pp. 70, 441.

2 See Judge Sutliff, 9 Oh. 260.

'Ante, pp. 685, 729.

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