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That the person claimed was held to service or labor under the laws of another State. 2d. That such service or labor is due to the party claiming to have the person delivered up. And, 3d. That the person so held to service under the laws of such State had escaped therefrom, and all presumptions of law being in favor of life and liberty, and the claim for surrender being a claim against liberty, it must be fairly proved.

"Again, the Amendment of the Constitution referred to, being an amendment of the instrument containing the fugitive clause relied on, must have full effect, although it be by qualifying, or even by necessary implication, entirely abrogating that provision requiring a surrender. There is not, however, any irreconcilable incongruity between the fugitive clause reasonably interpreted and the Amendment. The Amendment only makes certain what ought to have been before regarded as reasonably implied-that neither under that clause of the Constitution, nor any other, can a person be deprived of his liberty, except by due process of law, and that the person against whom the claim is made has a right to a jury trial and all the ordinary facilities of a court of justice constituting due process of law."

Judge Sutliff here cites the language of Kent, 2 Comm. 3, already given in the extract from Judge Whiton's opinion, ante, p. 712. He then adds: "The object of the fugitive Act is not to surrender a criminal for his trial in another State, but to surrender a person on the claim of another person, that the person claimed is his debtor, that he owes him, not money, but services." For the provision, he remarks, includes apprentices.' "It is also to be remembered," he adds, "that the provisions of the Act of 1850 are as general and comprehensive as any other general law, in its terms." He gives section 10 of the Act, at length. On p. 250, supposing the case of one being seized who is actually a native domiciled free white citizen of the State, he says:-"Now can it be gravely insisted that a free white man or woman, thus arrested, under no charge of any crime or offence in the foreign State, but merely charged with owing service and denying the claim, is not entitled to a fair trial by

On this question see ante, § 715.

jury, and to the benefit of due process of law, to make good his or her defence? If such right does not exist under the express provision of the Constitution in such a case, in what imaginable case can a free citizen of a free State assert his claim to a due process of law, or a jury trial, to show a legal defence to any unjust claim against him,-to show he does not owe service or money, or any other debt or demand, claimed of him by another person, and upon which he had been arrested?"

§ 931. The next authorities in the order herein already followed are the opinions delivered by U. S. commissioners. In the note' below is given a portion of Mr. George T. Curtis' Opinion, which immediately follows the extract given, ante, p. 676, note. Mr. Loring did not examine this question in his opinion delivered in Burns' case.

§ 932. On this question there is very little to be gleaned from the commentators. Story, in Comm., 1st ed., § 1806, 2d ed., § 1812, says: "It is obvious that these provisions for the arrest and removal of fugitives of both classes contemplated summary ministerial proceedings, and not the ordinary course

'IV. Mon. L. R. 7:-" The rendition of fugitives from service under the Constitution is an act analogous to the rendition of fugitives from justice, and the two cases, so far as the powers and duties of the General Government are concerned, are of the same general character and may appropriately be provided for by the same general means. The purpose of proving in the one case that the person claimed was held to service and has escaped, and in the other that he had committed a crime, is simply to establish the right of removal. Nor does the fact that the fugitive from service is surrendered to his owner, while the fugitive from justice is surrendered to the State, have a tendency to show that the proceedings here, in either case, are a trial of anything more than the right of removal. In both cases the Government of the United States surrenders the fugitive, or provides for his surrender, to the party to whom it has stipulated that he shall be delivered up. In the case of fugitives from service, there may be practical difficulties or improbabilities as to a trial after a fugitive has returned. But the Government of the United States, in making the surrender which it has stipulated to make, is not constitutionally bound to stipulate for a trial, and its omission to do so does not make these proceedings final and conclusive, instead of ministerial. There may be, on the other hand, practical means and provisions well known to be made by the slave States for trying these questions of freedom by process instituted for the express purpose. The General Government has as clear a right to look to one class of probabilities as to the other. Its looking to the one and not to the other, does not make its own proceedings, clearly designed to be ministerial and to secure only the limited right of removal, a full and final trial of a right which it obviously intends to leave to another government to adjudicate, upon the faith that it will do justice to its own subject. If this be so-and there is no doubt that it is-this proceeding is not a suit at common law in which either party can, as a matter of right, demand a trial by jury. The decision of the Supreme Court of the United States in Prigg's case, that the law of 1793, which also withheld a trial by jury, is constitutional in all its leading provisions, fully disposes of this question."

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 necessary, 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." merely cites the earlier authorities.

He

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, 507; 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 gov ernment 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.

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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

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,

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