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§ 947. The sixth section of the Act of 1850 provides for evidence by depositions, or other "satisfactory testimony," to be taken before State officers in the State in which the fugitive was held to service, which is to be competent proof before the judge or commissioner in the State in which the person claimed as such fugitive is found; and the tenth section provides for record evidence taken in the same manner and having the like effect. It has been said that, by this legislation, Congress would confer the judicial power of the United States contrary to those provisions in the Constitution which have also been held incompatible with the action of the commissioners and State magistrates.'

The objection appears to have been taken in Allen's case;" and the view of Judge Marvin, sustaining the law, seems to be in accordance with the doctrine of concurrent judicial power which has been given in the fifteenth chapter of this work.

But this view of the source of the power exercised does not avoid the force of the objection that, according to the statute, a tribunal having no actual jurisdiction of the person who is claimed determines the effect of evidence for some other tribunal which has such jurisdiction."

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1 Ante, p. 629.

Ante, p. 60. On pp. 97, 98, of the pamphlet report, Judge Marvin said: "It is further insisted that the Act is unconstitutional because it allows testimony, depositions, &c., taken before State officers. Some confusion has arisen, I apprehend, from the authorities cited and the arguments upon these questions. It is true that the judicial power of the U. S. is vested in the U. S. courts, and that Congress has no power to vest judicial powers in State courts. It does not, however, follow that a State judge, or magistrate, or court, may not execute and carry into effect laws passed by Congress, when those laws provide that the State judge, magistrate, or court may do so. The State magistrate derives all his judicial power from the State constitution or laws. He may, however, if he pleases, use that judicial power in executing the laws of the U. S., provided the laws of the State do not forbid, and provided, further, that the thing to be done by the State magistrate or court can be done in the manner and in accordance with the rules, proceedings, and practice of the State courts. A State court cannot execute the criminal laws of the U. S., the crime being charged against another sovereignty, &c., &c. I think these principles and distinctions will appear from a careful examination of the cases cited, and from other cases; and they will be found stated, I think, in Kent's Commentaries, treating upon the jurisdictions of the U. S. and State courts as affected by the U. S. Constitution." But this theory will support only the action of judges of courts of ordinary common-law jurisdiction; see ante, § 456. Mr. Loring, in Burns' case, VII. Mon. L. R., 205, thought that Congress had, in the Act of 1850, only used the power given by the first section of the fourth Article to prescribe the effect of the records and judicial proceedings of the States. But the rule, as ordinarily received, ante, § 609, would exclude such proceedings as having been taken when there was no actual jurisdiction.

* Counsel's 3d point in Sims' case, IV. Mon. L. R., 5-"That the transcript of

Mr. G. T. Curtis, in Sims' case, IV. Mo. L. R., 9, argues that, if Congress could, in the law of 1793, empower State magistrates to "exercise the whole of this jurisdiction, find every fact involved in the inquiry, and grant a certificate upon such finding, it is surely competent for Congress to confer upon a State magistrate authority to exercise part of this jurisdiction, and make a part of this inquiry." But the State magistrates who could act as provided by the law of 1793 had the person claimed actually before them-a fact which renders the argument, from the inclusion of the part in the whole, entirely inapplicable.

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948. It has been objected against the evidence allowed under these sections of the Act of 1850, "that such evidence is also incompetent because the captive was not represented at the taking thereof, and had no opportunity to cross-examination." This objection seems to be founded on some commonlaw principle which may be preserved under the ninth article of Amendment: "The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The "confronting with witnesses," spoken of in the sixth article, applies only in criminal cases. may be that the objection is answered by saying that there is no limitation in this respect on the power of Congress. If any other answer has been given,' it is probably dependent on the theory that the proceeding is only preliminary to judicial inquiry and decision elsewhere, and that the evidence is not used to determine the existence or non-existence of any legal

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testimony taken before magistrates of a State court in Georgia, and of the judg ment thereupon by such magistrates, is incompetent evidence, Congress having no power to confer upon State courts or magistrates judicial authority to determine conclusively or otherwise upon the effect of evidence to be used before another tribunal." (Cites Const. U. S., Art. 3, § 1; Martin v. Hunter, 1 Wheat, 327, 330, 338.)

1 Counsel in Sims' case, 4th point, IV. Mon. L. R., p. 5.

In IV. Mon. L. R. 9, as part of Mr. Curtis' reasoning, the following is given:"To the further objection to the competency of the evidence on the ground that Sims was not present at the taking thereof, and had no opportunity to cross-examine the witnesses, it was answered, that Sims cannot now complain that he had no opportunity to cross-examine the witnesses, for as it was proved that he had escaped from service in Georgia, his absence therefrom, and the consequent impossibility of being served with notice, were in his own wrong." But how was he proved to have escaped, unless by this evidence which is thus legitimated by assuming that he has escaped?

relation between the parties. The argument on that point has already been considered.

949. Another distinguishing feature of the remedy provided by the Act of 1850 is that, in the fifth section, it empowers the commissioners or the persons appointed by them to execute process as aforesaid, to summon and call to their aid the bystanders or the posse comitatus of the proper county when necessary,' &c., &c., and all good citizens are commanded, &c., &c.

A very interesting question of American public lawwhether, under the distribution of sovereign power recognized in the Constitution, the national Government has any legal claim to the assistance of the posse comitatus-here presents itself. But it is too remotely connected with the subject-matter of this treatise, especially since Congress did not deem it fit to provide any penalties for the bystanders and good citizens who might decline to "aid and assist in the prompt and efficient execution of this law whenever their services may be required, as aforesaid, for that purpose."

§ 950. Objection has also been taken to the concluding clause of the sixth section, which provides that the certificates granted "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 said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever." This, it is said, is in violation of that clause in the 9th section of the first article of the Amendments, which declares "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion. the public safety may require it."

It would seem that judicial opinion on this point could be pronounced only in some case in which a court had been asked to grant the writ for the purpose of inquiring whether the judge or commissioner had decided properly in granting the certificate, and in which there was no question of the jurisdiction of such judge or commissioner. Probably no such case has yet occurred. In the reported cases in which habeas corpus

has been issued to bring up a supposed fugitive held under a judge's or a commissioner's warrant or certificate, it has been issued to try the question of jurisdiction.

This objection to the Act of 1850 was especially considered by the Attorney-General, Mr. John J. Crittenden, in the Opinion already noticed.' The portion bearing directly on the question is given in the note below. The whole argument in this

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Ante, pp. 531, 678. After a view of the legislative power of Congress, derived from Prigg's case, Mr. Crittenden says:-"My opinion, as before expressed, is, that there is nothing in that clause or section which conflicts with or suspends, or was intended to suspend, the privilege of the writ of habeas corpus. I think so, because the bill says not one word about that writ; because, by the Constitution, Congress is expressly forbidden to suspend the privilege of this writ unless when in cases of rebellion or invasion the public safety may require it;' and therefore such suspension by this act (there being neither rebellion nor invasion) would be a plain and palpable violation of the Constitution, and no intention to commit such a violation of the Constitution, of their duty and their oaths, ought to be imputed to them upon mere constructions and implications; and, thirdly, because there is no incompatibility between these provisions of the bill and the privilege of the writ of habeas corpus in its utmost constitutional latitude.

Congress, in the case of fugitive slaves, as in all other cases within the scope of its constitutional authority, has the unquestionable right to ordain and prescribe for what causes, to what extent, and in what manner persons may be taken into custody, detained, or imprisoned. Without this power they could not fulfill their constitutional trust, nor perform the ordinary and necessary duties of government. It was never heard that the exercise of that legislative power was any encroachment upon or suspension of the privilege of the writ of habeas corpus. It is only by some confusion of ideas that such a conflict can be supposed to exist. It is not within the province or privilege of this great writ to loose those whom the law has bound. That would be to put a writ granted by the law in opposition to the law; to make one part of the law destructive of another. This writ follows the law and obeys the law. It is issued, upon proper complaint, to make inquiry into the causes of commitment or imprisonment, and its sole remedial power and purpose is to deliver the party from all manner of illegal confinement.' (3 Bl. Comm. 131.) If, upon application to the court or judge for this writ, or if, upon its return, it shall appear that the confinement complained of was lawful, the writ, in the first instance, would be refused, and, in the last, the party would be remanded to his former lawful custody.

"The condition of one in custody as a fugitive slave is, under this law, so far as respects the writ of habeas corpus, precisely the same as that of all other prisoners under the laws of the United States. The 'privilege' of that writ remains alike to all of them, but to be judged of-granted or refused-discharged or enforced-by the proper tribunal, according to the circumstances of the case, and as the commitment and detention may appear to be legal or illegal.

"The whole effect of the law may be thus briefly stated: Congress has constituted a tribunal, with exclusive jurisdiction, to determine summarily, and without appeal, who are fugitives from service or labor under the second section of the fourth Article of the Constitution, and to whom such service or labor is due. The judgment of every tribunal of exclusive jurisdiction, where no appeal lies, is, of necessity, conclusive upon every other tribunal. And, therefore, the judgment of the tribunal created by this act is conclusive upon all tribunals. Wherever this judgment is made to appear, it is conclusive of the right of the owner to retain in his custody the fugitive from his service, and to remove him back to the place or State from which he escaped. If it is shown upon the application of the

Opinion seems to be that, as, on general principles, habeas corpus should not issue if it appears that the imprisonment is on the decision of proper judicial authority (that is, does not issue to review judicial decision), therefore it should not issue when the certificate is issued by a judge or a commissioner in a matter in which (according to other orthodox opinion) he does not exercise judicial authority. This portion of the Opinion bears, therefore, on the question of the judicial action of the commissioners.

Mr. B. R. Curtis, in the Opinion written for the marshal, waives the examination of this question, and refers to this Opinion of Mr. Crittenden, expressly stating his concurrence in the conclusion that this objection to the law is not tenable.

The sum of the matter, on the basis of this opinion, seems to be that, if the action of the judge or commissioner in giving the certificate is ministerial, then Congress cannot except a custody under it from judicial inquiry by habeas corpus. If it is judicial, then it is not valid as the action of a commissioner.

§ 951. An objection has been frequently taken to the provision, in the 8th section of this Act, that where the proceedings

fugitive for a writ of habeas corpus, it prevents the issuing of the writ; if upon the return, it discharges the writ and restores or maintains the custody.

"This view of the law of this case is fully sustained by the decision of the Supreme Court of the United States in the case of Tobias Watkins, where the court refused to discharge upon the ground that he was in custody under the sentence of a court of competent jurisdiction, and that that judgment was conclusive upon them. (3 Peters.)

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The expressions used in the last clause of the sixth section, that the certificate therein alluded to 'shall prevent all molestation' of the persons to whom granted by any process issued,' &c., probably mean only what the Act of 1793 meant by declaring a certificate under that act a sufficient warrant for the removal of a fugitive, and certainly do not mean a suspension of the habeas corpus. I conclude by repeating my conviction that there is nothing in the bill in question which conflicts with the Constitution, or suspends, or was intended to suspend, the privilege of the writ of habeas corpus.”

Similar is Judge Grier's reasoning in Jenkins' case, 2 Wallace, Jr., 526, ante, Vol. 1, p. 495, note 7. Judge McLean, in Ex parte Robinson, 6 McLean, 355, thus places the commissioner on the level with the State judicial tribunals. He says of the writ issued from the State court:-"It wrested from him, without any authority of law, the subject of his jurisdiction. This, so far as I know, is without precedent. Had any commissioner or federal judge interposed, and by the same means disregarded and disturbed the jurisdiction of a State court, I should not have felt less concern than the eloquent counsel." In habeas corpus from a State court the question is involved with the more general one of concurrent jurisdiction, considered ante, §§ 447-450.

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