founded on the assertion of the unsuitableness of that instrument to certain ends arbitrarily assumed.'

The argument can be noticed here only by attempting to show how an Act might have been framed which should have satisfied the other requirements of the Constitution, while it also carried out the purposes of the provision for delivery of fugitives from labor."

§ 958. And, first, as to the necessity of leaving the entire determination of the claim in the hands of a State magistrate' or a United States commissioner.

Admitting that the judges of the national courts were too few in number to bring the judicial power of the United States to bear promptly and efficiently on these cases, it is still not easy to see why the magistrates and commissioners might not have been empowered to act in these cases as the commissioners are empowered in the execution of the penal laws of the United States. They might have been authorized to commit, arrest, detain, or keep the person claimed as a fugitive from labor, who, then being in the custody of the United States and not in that of the claimant individually, should afterwards have been brought before some judicial officer capable of deciding the case in virtue of the judicial power of the United States, or of the concurrent judicial power of some State; where the State might have consented to its exercise.

It may be urged, in reply, that this would only have facilitated the arrest and detention of the supposed fugitive, as the number of persons capable of deciding on the validity of the

When, in this argument, the legislation is asserted to be necessary, the word has an extent given it beyond that of the words " necessary and proper," in the last clause of the 8th section of the 1st Article. See ante, p. 603.

2

Judge Peck, who, in Ex parte Bushnell, &c., maintained the validity of the law, said, 9 Oh. 216:-" It seems, to us, that the law in question is unnecessarily severe in its sanctions, and should have been conceived in a milder and more humane spirit. More consideration ought to have been shown to the alleged fugitive in the ascertainment of his rights before his delivery to the claimant, and more respect evinced to the scruples, conscientious or otherwise, of the citizens of the State where he might be seized. It is not a question, whether the law is just and expedient, but whether it is constitutional. Not whether an admitted right to legislate has been abused or improperly exercised, but whether such power exists.” Meaning some magistrate of a court of special jurisdiction, not capable of exercising the concurrent judicial power of the State. Ante, p. 652.

3

That Judge Taney conceived of the State magistrates as acting thus under the law of 1793, see ante, § 874.

claim would not have been increased, and that the trouble and expense of removing the supposed fugitive from the locality of the magistrate or commissioner, to that of the judge, would have rendered the remedy nugatory.

But since, in the event of such fugitive's being finally delivered up on claim, a removal from the State in which he is found and taken is contemplated, it might be supposed that a person having authority judicially to determine the delivery on claim might be found either in the State in which the arrest takes place, or in that in which he is said to have been held to service, or in some intermediate State. The question here occurs whether it is necessary, under the provision, when the delivery to the person to whom the service or labor is due is to be made by national authority, that it should be made in the State in which the supposed fugitive is arrested?

959. This question may be pursued in connection with its parallel, which arises under the second inquiry-as to the necessity of summary proceedings, without a jury.

The necessity of summary proceedings on these claims is generally based on the assumption that, in the non-slaveholding States, juries, notwithstanding the evidence, would never or but seldom find that the person claimed had escaped from service to which he was held by the laws of another State,— being therein actuated either by a feeling of hostility towards the slaveholding States, or by opinions respecting the ethical character of those laws, leading them to regard the provision in the Constitution as void in foro conscientiæ.

be

But, supposing this to be true, and that the fact may considered by Congress in carrying the provision into effect, it does not appear but that, when the claim is to be determined by the judicial power of the United States, a trial by jury might be had in some locality other than the State in which the supposed fugitive is arrested.

If the arrest were made under the authority of the State in which the fugitive is found (proposing either to fulfill its obligations under the provision, according to the first construction, or to carry into effect the national municipal private law by exercising its concurrent judicial power), the judicial

determination, of the claim, either with or without a jury, could take place only in that State. But, if the arrest is made under national authority in reference to a judicial determination of the claim by the same authority, there seems to be no such necessity that the national judicial power determining the claim should finally decide it and make the delivery in the State in which the arrest was made; or that, if a jury must co-operate with a judge holding that power, such jury should be empanneled in the State where the supposed fugitive is taken.

It is commonly urged by those who uphold the State laws, commonly called Personal Liberty Bills, which prohibit the removal of a person as a fugitive, unless after determination of the claim before a jury under the State law, that the trial must be in the State in which the supposed fugitive may be found, if the guarantee of jury trial has any force whatever. This is equivalent to saying that a fugitive cannot be delivered up on claim otherwise than by placing him in the custody of the claimant in the State in which such fugitive may be found.

But the law under which the right of the claimant and the obligation of the fugitive exist (whether it is found in the provision itself, operating as private law, or in the legislation of Congress) is national municipal law in authority and extent, though it has an international or quasi-international effect. This law will be equally enforced, whether the delivery is judicially determined in a locality under a State jurisdiction distinct from that over the locality in which the fugitive was arrested for the purpose of making the claim, or in the same locality. Under the national authority the two localities are included in one forum of jurisdiction. The locality in which the supposed fugitive is said to owe service and from which he is said to have escaped is, as to the facts to be proved, the vicinage and the natural venue.'

Against this might be suggested an argument, by analogy, from the commonlaw rule that, on suit by the villein in one county and plea by the lord that the plaintiff is his villein-regardant in another, this issue shall be tried "in the county where the plaintiff hath conceived his action, and not in the county where the manor is: and this is in favor of liberty." 1 Co. Lit., fol. 125, a. And so it must

By a law which should provide for a transfer, by public authority, of the supposed fugitive to the jurisdiction from which he is said to have escaped, and a judicial determination of the claim in the same, the parallelism which has been sup posed between these cases and the extradition of fugitives from justice would be established.'

If, after such a transfer, the claim is heard before a judge capable of holding the judicial power of the United States, and if a jury is given on the demand of either party, these constitutional guarantees will have been satisfied.'

A law which should thus allow a trial of the facts, when disputed, by a jury in the State by whose laws the person claimed is said to have been held to service or labor and from which he is said to have escaped has, on several occasions, been proposed in Congress. While the original bill for the law of 1850 was under consideration, the Senate Committee of Thirteen on the Compromise Measures of that year reported in favor of amending the bill by providing that such a trial might be had when the person carried back as a fugitive persisted in denying that he was a slave or owed service.' Mr. Underwood, of Kentucky, also introduced, as an amendment, a bill providing for such a trial in the State to which the reclaimed person should be taken, "to be conformable to the laws of the State in that behalf," which was rejected in the Senate, Aug. 23, 1850.*

have been where the lord commenced the contest by nativo habendo. This common-law rule would limit the judicial application of the provision in the absence of a statute (ante, § 27), but could hardly limit the legislative power of Congress. Compare ante,

916.

2 But the jury should be constituted under the sanctions of the English common law, as distinguished from the law of the slave State for the trial of similar issues. See ante, § 938.

Mr. Clay was chairman of the committee, and advocated the measure in the Senate. See his remarks of May 13 and 21, 1850, in vol. 22, App. to Congressional Globe, 571, 612; and 2 Clay's Speeches, 459. The amendment to the bill appears to have been introduced in the committee by Mr. Cass, who also declared his opinion in favor of it in the discussion of August 26, 1852, which arose on Mr. Sumner's speech on his motion to repeal the Act of 1850. See vol. 25, App. Cong. Globe, 1124, 1125. Both Mr. Cass and Mr. Clay are said to have afterwards declared that they would have advocated such a provision. See Louisville Journal, May 11, 1850; Detroit Free Press, May, 1850. It does not appear that either of these senators thought such a provision essential to satisfy the requirements of the Constitution. The amendment to the bill was rejected in the Senate on the strenuous objection of Mr. Borland, of Arkansas, and other Southern senators. * See Journals 1st Session 31st Cong. 576–579.

A bill, amending the fugitive-slave law by providing for such a trial in the Circuit Court of the United States in the State to which the reclaimed person shall be carried back, received the vote of a majority of the House of Representatives, March 1, 1861.'

During the same session, Mr. Douglas introduced a bill in the Senate to amend the existing Acts, which also, I believe, provided for such a trial.'

3

$960. In the exciting debates which preceded the adoption of the Compromise Measures of 1850, the provisions of the fugitive-slave law received little or no examination in either branch of the national Legislature. On the occasion of Mr. Sumner's speech, on his motion to repeal the law, August 26, 1852, many other senators expressed opinions. So far as any argument in support of the law was then advanced, it rests on the assumptions that the action of the judge or commissioner is preliminary, and that the delivery of a fugitive on claim is not, in its legal aspects, distinguishable from the extradition of a fugitive from justice; while the power of Congress was supported either by the argument from necessity or by that from long acquiescence.

1 House Bill No. 1009. It was read in the Senate for the first time only, March 2, 1861.

2 Senate Bill No. 549. Jan. 28, 1861, read, by consent, the first and second times, and referred to the Judiciary Committee.

9 Benton's Thirty Years' View, vol. 2. p. 780:-"The wonder is how such an Act came to pass, even by so lean a vote as it received: for it was voted for by less than half of the Senate, and by six less than the number of senators from the slave States alone. It is a wonder how it passed at all; and the wonder increases on knowing that, of the small number that voted for it, many were against it, and merely went along with those who had constituted themselves the particular guardians of the rights of the slave States, and claimed a lead in all that concerned them. These self-instituted guardians were permitted to have their own way, some voting with them unwillingly, others not voting at all. It was a part of the plan of compromise and pacification' which was then deemed essential to save the Union; and under the fear of danger to the Union on one hand, and the charms of pacification and compromise on the other, a few heated spirits got the control, and had things their own way."