he is found residing at the time the claim is made, and that he has never been in the State under whose laws his services are claimed,―can it for a moment be supposed that the framers of the Constitution intended to authorize the transportation of a person thus claimed to a distant part of the Union as a slave upon a mere summary examination, before an inferior State magistrate,' who is clothed with no power to compel the attendance of witnesses to ascertain the truth of the allegations of the respective parties? Whatever others may think upon the subject, I must still be permitted to doubt whether the patriots of the Revolution who framed the Constitution of the United States, and who had incorporated into the Declaration of Independence, as one of the justifiable causes of separation from our mother country, that the inhabitants of the colonies had been transported beyond seas for trial, could ever have intended to sanction such a principle as to one who was merely claimed as a fugitive from servitude in another State."

§ 923. The decision of Judge Thompson in the matter of Peter, alias Lewis, Martin (circa 1837), 2 Paine's C. C. R., 348, was on a motion to quash writs de homine replegiando, issued out of and made returnable in the United States Circuit Court, requiring the marshal to replevy Martin out of the custody in which he was held by certain citizens of Virginia. The marshal had replevied Martin when held by the sheriff under a habeas corpus issued by the Recorder of the City of New York, conformably to the State law. But the Recorder had afterwards given a certificate to the claimants. Judge Thompson held that, whether Martin was "in the custody of the law under the order of the Recorder, or was in the custody of the

As already shown, ante, p. 652, the previous decisions did not warrant the Chancellor in saying that an inferior State magistrate-that is, one not holding the ordinary judicial power of the State-may act as provided in the Act of Congress. This dictum of the Chancellor is in harmony with the passage already quoted, in which he describes the power exercised by the State magistrates as ministerial. See ante, p. 632.

The portion of Judge Hornblower's Opinion in Himsley's case (1836) which relates to the constitutionality of the law of New Jersey in respect to the guarantee of jury trial in the State Constitution (ante, p. 66, n.) indicates that he considered the objection of great force as against the Act of Congress also.

บ.

Like Judge Nelson, on similar circumstances in Jack v. Martin (ante, p. 622, n.), Judge Thompson held that the Recorder had proceeded throughout under the law of Congress.

claimants," the writ was irregularly issued, and must be set aside. (Ib. 351, 355.)

Judge Thompson held that, if the Act of Congress were unconstitutional and void, there would be no objection to issuing a homine replegiando to try the question of slavery (ib. 351). But he affirmed the constitutionality of the law of Congress, and considered the objection taken against it for not permitting trial by jury. On this point he is reported to have said (ib. 352): "If the inquiry before the magistrate was a trial upon the merits, and conclusive upon the question of slavery, there would be great force in the objection. But it is not. It is only a preliminary examination to authorize the claimant to take back the fugitive to the State from which he fled; and the question, whether he is a slave or not, is open to inquiry there, and we cannot listen for a moment to any suggestion that this question will not be there fairly and impartially tried." And, on p. 353: "If this were intended to be a final determination of the question of slavery, the law would, doubtless, have declared the freedom of the slave to be thereby established; and it would be a judicial proceeding which would, under the Constitution of the United States, be binding in each State. The magistrates designated in the Act, who are authorized to entertain this inquiry, clearly shows it would not be intended as a trial upon the merits of the case. It may be made before any judge of the Circuit or District Courts of the United States residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made.'

* *

"The 7th article of the Amendments to the Constitution does not apply to any such preliminary inquiries. Admitting that the trial upon the merits, under the homine replegiando, or any other mode of proceeding which is final upon the question of slavery, would fall within this amendment, and would require a trial by jury, it by no means follows that, for the purposes contemplated by this Act of Con

The argument is, that some persons might act who neither held the judicial power of the United States, nor were judges of State courts of ordinary jurisdiction. But this, as has been shown, has never been established by judicial decision.

gress, the right of trial by jury is secured.' If it is, it is secured in every case where a fugitive from justice is demanded according to the provisions of the same Act of Congress; and, indeed, it is secured in every possible case of arrest upon a criminal charge-for the identity of the person and prima facie evidence of guilt are subjects of inquiry upon every such arrest. But another reason may be assigned why this Amendment has no bearing upon the law in question: the right of trial by jury secured by this Amendment is the trial according to the course of the common law, and is confined to matters of fact only. All questions of law arising upon suits at common. law are decided by the court; and the inquiry before the magistrate, under this Act of Congress, so far as the question of slavery is involved, is a question of law, and not a question of fact. The magistrate is to inquire whether, under the laws of the State or Territory from which the fugitive fled, he owes service or labor to the person claiming him."

In this view of the nature of the issue, Judge Thompson appears to have stood alone. No other judge has said anything to support this extraordinary position.

$924. In Prigg's case no allusion was made either by counsel or by any member of the court to this ground of objection against the constitutionality of the Act.' The judgment of the court in this case bears on the present question only on the supposition that the constitutional guarantee cannot apply against a removal of the supposed fugitive under the proceedings instituted by the law of Congress any more than it would against the act of the claimant in seizing and removing such fugitive without reference to the remedy provided by Congress. The

For the defendant in error, in Jack v. Martin, 14 Wend., 521, shortly after this decision, O'Conor, counsel, in reply to the objection against the Act of Congress which is here considered, asserted that the person claimed may try his right to freedom by homine replegiando in the Circuit Court of the United States. This opinion has not been advanced in any other case under the law of 1793. It seems inconsistent with the conclusiveness of the certificate declared by sec. 6 of the Act of 1850.

On the question, whether the judgment of the court involved the inquiry into the constitutionality of the Act of Congress, see ante, p. 638, note. Mr. W. W. Story, in Life and Letters of Judge Story, vol. 2, 396, says, that when the objection to the constitutionality of the Act of Congress for excluding a jury trial was suggested to Judge Story, "on his return from Washington, he replied that this question was not argued by counsel nor considered by the court, and that he should still consider it an open one."

VOL. II.--45

court in Prigg's case affirmed the legality of such a removal by the claimants. An argument against that doctrine has already been presented. But, admitting the validity of such removal, it would still seem that, if Congress undertakes to provide a mode of determining the claim under its authority, it must respect this guarantee, which is intended to limit all powers of the national Government in reference to private persons. It seems to be admitted, by those who maintain the claimant's right to seize and remove the fugitive, that personal replevin or trespass may be brought against such claimant in the State in which the person seized is found in which case his right to the service of the person seized will be tried by jury. But the Acts of Congress prevent any such means of contesting the claimant's right, and thus exclude even that trial which might take place consistently with the doctrine of seizure and removal.

925. In Sims' case, 7 Cushing, 310, Shaw, Ch. J., says :"Since the argument in court this morning I am reminded by one of the counsel for the petitioner that the law in question ought to be regarded as unconstitutional, because it makes no provision for a trial by jury. We think that this cannot vary the result. The law of 1850 stands, in this respect, precisely upon the same ground with that of 1793, and the same grounds of argument which tend to show the unconstitutionality of one apply with equal force to the other, and the same answer may be made to them." This is the only notice of the objection in this opinion.

§ 926. In Miller v. McQuerry (1853), 5 McLean, 469, Judge McLean supported the validity of the Acts of Congress against this objection by a specimen of reasoning which would be deemed extraordinary indeed if applied to any other matter than the claim for a fugitive slave. The judge says, ib. 481: "The Act of 1850, except by repugnant provisions, did not repeal the Act of 1793. The objection, that no jury is given, does apply to both Acts. From my experience in trying numerous actions for damages against persons who obstructed an arrest of fugitives from labor, or aided their escape, I am authorized to say that the rights of the master would be safe before

a jury.” The judge gives an instance where an abolitionist was of the jury.' He afterwards says: "The Act of 1793 has been in operation about sixty years. During that whole time it has been executed as occasion required, and it is not known that any court, judge, or other officer, has held the Act in this or in any other respect unconstitutional. This long course of decision on a question so exciting as to call forth the sympathies of the people and the astuteness of lawyers is no unsatisfactory evidence that the construction is correct.

"Under the Constitution and Act of Congress the inquiry is not strictly whether the fugitive be a slave or a freeman, but whether he owe service to the claimant. This would be the precise question in the case of an apprentice; in such a case the inquiry would not be whether the master had treated the apprentice so badly as to entitle him to his discharge. Such a question would more probably arise under the indenture of apprenticeship and the laws under which it is executed. And if the apprentice be remanded to the service of his master, it would in no respect affect his right to a discharge, where he is held, for the cruelty of his master or any other ground.' The same principle applies to fugitives from labor. It is true in such cases evidence is heard that he is a freeman. may be established, by acts done or suffered by his master, not necessarily within the jurisdiction where he is held as a slave. Such an inquiry may be made, as it is required by the justice of the case. But on whatever ground the fugitive may be remanded, it cannot, legally, operate against his right to liberty. That right when presented to a court in a slave State has, generally, been acted upon with fairness and impartiality. Exceptions to this, if there be exceptions, would seem to have. arisen on the claims of heirs or creditors, which are governed

3

His freedom.

1 The assurance that under either system of trial the result to him must be the same, might be very satisfactory to the person claimed, but it is a very singu lar mode of disposing of the legal question. There is in it as much argument for as against trial by jury.

The judge argues the question, whether the person claimed is or is not an apprentice, cannot be tried, because, assuming that he is an apprentice, a discharge of the indentures, for cruelty, &c., could be asked for only in the State in which the parties reside.

This is inconsistent with that which he had just said of an apprentice.