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itation of this right has been attempted in the legislation of Congress.1

§ 914. But even if there were any force in the certificate given by the commissioner to oblige the rendition of the supposed fugitive to the State from which he was said to have escaped, or if the legal force of the certificate was correctly described by Judge Sprague,-"It is merely an authority to carry the person named from one State to another—that is its whole legal effect,"-it is nevertheless evident that the commissioner's act of judgment is a finality as regards the forum in which it is pronounced. Whatever may afterwards be judicially done, as between the claimant and the supposed fugitive in the forum to which the latter is taken will be an independent and original proceeding, having no connection, as an act of remedial jurisprudence, with the commissioner's act of judgment. As Judge Sprague says, very simply, "What may be legally done with that person in the State to which he is carried, depends on the laws of that State." It is precisely this final transfer of the person, from one jurisdiction which determined his individual rights in one way, to another which may determine them in the same or in some other way, which makes the proceeding a judicial one according to Judge Sprague's definition of a proceeding which is a judicial one "under our jurisprudence." There is no connection established in these instances between the action of the commissioner in the State from which the fugitive is removed and the administration of justice in that to which he is taken. The fact that the removal takes place

'In Sims' case, Mr. Commissioner Curtis seems to have admitted that under the provision of the Constitution a case arises within the judicial power. Mr. Rantoul, counsel for Sims, argued that the commissioner is by the statute required to carry into effect the whole purpose of the provision as the rule determining the right of the master and the correlative obligations of the slave and of third parties; and that therefore the "case "would be determined by the commissioner's act. Mr. Rantoul took that view of the effect of the statute which is here given in the text, maintaining that the master's right or power became absolute on getting the certificate; that he might carry the supposed fugitive to any other State, or to any foreign jurisdiction; that the commissioner's decision was equivalent to that of a judge deciding, in and for a State, the issue of liber or non liber under the local law. (See Mr. Rantoul's 7th point, IV. Mon. L. R. 5, and the claimant's 3d point, ib. 6.) Mr. Curtis held his action to be preliminary merely (see the Opinion, ante, p. 676, note.)

See also post, § 923, Thompson, J., in Martin's case, § 926, McLean, J., in McQuerry's case, and § 933, the Opinion of B. R. Curtis, Esq.

under a rule which rests on the national authority may induce the idea that a law has been carried into effect which operates in the United States as one jurisdiction, in view of which the States are like counties or local districts under one municipal (internal) law. In the case of fugitives from justice this may be the case, under the language of the provision and public comity, even if no parallel can be found in the extradition of foreign criminals. But in the case of persons claimed as owing service or labor, there is no such amalgamation of the two States. There was in the jurisprudence of England a judg ment of outlawry. In the instances here contemplated, the person carried away under a certificate is outlawed in respect to the State in which he is found; he is as conclusively removed from the judicial power and protection of that State as though he had been annihilated. To say that, in another State to which he may be and probably will be taken, ulterior acts of judgment may take place which will be judicially performed, is nothing to the purpose in the argument.

915. It is sometimes said that the action of the commissioner is not judicial, because the certificate could not be set up in support of a plea of res judicata in a suit for freedom brought in the State to which the person removed as a fugitive from labor may be taken. But, in point of fact, it is so pleaded in the forum in and for which it is rendered, that is, the State in which the fugitive is claimed. In that forum it is made conclusive against every other manifestation of judicial power, State or national.'

§ 916. If Congress had provided a proceeding under which the slave would continue in the custody of the national public authority in transitu, before the claim should be finally determined under that authority, the action of a commissioner who should grant a warrant or a certificate for removal in view of a hearing of the claim before a tribunal acting under that authority in the State from which the person claimed is alleged to have escaped, and by whose laws he is supposed to be held to service, would have an entirely different character. The commissioner's action would then be that which, in opinions

1

Compare Judge Conckling's assertion that it is like a judgment. Ante, p. 665.

already cited, it has been affirmed to be under the Act of 1850. Or even if it were provided that the master's custody should not be complete until, in the State from which the alleged slave is supposed to have escaped, some judgment had been passed by the local authorities, it might, by some stretch of the vaguest doctrine of comity between the States, or comity between the State Government and the national Government, be pretended that the act of transfer from jurisdiction to jurisdiction is ministerial only. There would then be a real parallelism between the removal under the commissioners' action and an extradition in the case of a fugitive from justice.

§ 917. The conclusion resulting from the foregoing considerations is, that the action of the commissioners in granting a certificate, as contemplated by the Act of 1850, does involve an exercise of the judicial power of the United States. This conclusion is entirely distinct from any answer to the question, whether the guarantee of jury-trial is violated by the proceedings under these Acts of Congress. But the arguments to be considered in the determination of that question may have a bearing more or less confirmatory of this conclusion. That question is to be considered in the following chapter.

CHAPTER ΧΧΧ.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE LEGISLATION OF CONGRESS IN RESPECT TO FUGITIVES FROM LABOR. THE SUBJECT CONTINUED. OF THE VALIDITY OF THAT LEGISLATION IN VIEW OF A GUARANTEE, IN THE CONSTITUTION, OF TRIAL BY JURY, AND OF OTHER PROVISIONS OPERATING AS A BILL OF RIGHTS.

§ 918. The questions which next present themselves, in considering the means provided by Congress for carrying into effect the provisions of the Constitution for the delivery of fugitives from labor, as stated in a former chapter,' relate to

2. The remedial process by which the demand or claim is to be presented, the proofs on which its legality is to be decided, and the method in which the delivery to the demandant or claimant is to be carried into effect.

The question which will first be considered is, whether the Acts of Congress of 1793 and 1850, or either of them, by providing for the removal of the persons claimed without submitting the facts at issue to the decision of a jury, is in violation of any guarantee in the Constitution operating as a Bill of Rights.

In the public and private discussions which have arisen in respect to the execution of the constitutional provision, it has been urged that such trial is required by the declaration, in the fifth article of Amendments, that "no person shall be deprived of life, liberty, or property, without due process of law," and that in the seventh article, that, "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."

919. To say nothing of the actual legislation of Congress

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as authority against the objection, every case in which an alleged fugitive from labor has been delivered up, as provided in either Act of Congress, by a judge holding the judicial power of the United States, or the concurrent judicial power of a State, and every case in which the delivery of such alleged fugitive by a United States commissioner, as provided by the law of 1850, has been sanctioned by a national or State court, is an authority that these guarantees have not been violated by such legislation. These constitutional guarantees, it will be remembered, operate only against the exercise of power derived from the national source. The judges of State courts acting in any of these cases, as provided by the law of Congress of 1793, derived their authority from the State, and not from the United States. Hence, such action by a State judge does not have the same force as a precedent in this inquiry. Still, the powers held by the State judiciary must have been limited by similar provisions in the State constitutions, and hence their action in these instances may be received as an exposition of constitutional law in a parallel question. In many of these instances, too, it is probable that the State judges did not actually discriminate whether their powers in the premises were derived from the State or from the United States. If the true doctrine is that the "State magistrates," acting according to the law of 1793, exercised power derived from the national source, the cases in which such officers have acted are direct authority.

§ 920. It might, at the first view, appear that the opinions in which the claimant's right to seize and remove a fugitive out of the State into which he may have escaped, without any proceeding under either Act of Congress, has been affirmed, are also authority against the applicability of these guarantees in cases arising under the legislation of Congress. But if any right of the claimant in respect to the escaped slave has been given by the Constitution itself, and does not owe its existence to the legislation of Congress, it would seem that such right could not be affected by those guarantees of the Constitution which limit the national Government in its several functions. It is not claimed by any that the right to seize and remove the

1 Ante, § 425.

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