fugitive without a certificate is given by the legislation of Congress. These cases, therefore, are not authority in the present inquiry.'

921. In this inquiry, the cases under the law of 1793 are of the greater importance, since they are relied upon almost exclusively in deciding the question under the later Act. The bearing of those cases upon the question under consideration is, however, very unequal.'

In Wright v. Deacon (1819), 5 Serg. and Rawle, 62 (ante, p. 438), the question directly before the court was of the va lidity of the statute of Pennsylvania providing a trial by jury in these cases. The question of the effect of the fifth and seventh articles of the Amendments to control the power of Congress does not appear to have been directly presented to the court. But Tilghman, Ch. J., expressly declared that the Act of Congress of 1793 was not unconstitutional in not providing a jury trial, saying, ib. 64, "It plainly appears, from the whole scope and tenor of the Constitution and Act of Congress, that the fugitive was to be delivered up on a summary proceeding, without the delay of a formal trial in a court of common law." To this Judge Tilghman adds a statement which, in subsequent instances, has been enlarged upon as a judicial denial of the assertion that a delivering up of an alleged slave to the claimant under the statutes of 1793 and 1850 is a determination of the rights of the parties under the national law without the test of a trial by jury. The judge said: "But if he had really a right to freedom, that right was not impaired by this pro

The question remains-whether these guarantees do not modify whatever power private persons may derive from the Constitution, and so limit the rights given by the fugitive-slave provision to the owner. This is subordinate to the question of the construction of that provision, because it can only arise on adopting the fourth construction. This question has not been here examined, because, on other reasoning, the conclusion has been against the doctrine that the owner's right in respect to the fugitive is the same as in the State from which he escaped. See ante, p. 580, n. 1. In 9 Oh., 173, Mr. Wolcott argues that these guarantees do apply against seizure and removal by the claimant.

In Butler v. Hopper (1806), I Wash. C. C., 500, ante, p. 409, Commonw. v. Holloway (1816), 2 S. & R., 305, ante, p. 412, and Er parte Simmons (1823), 4 Wash. C. C., 396, ante, p. 409, the question was only of the personal extent of the provision, and the party claimed was not delivered up. In Glen v. Hodges (1812), 9 Johns., 67, ante, p. 438, the question was only of the right to seize, either for removal or making a claim; the debt of service seems not to have been disputed. But the court may have thought that the question at issue involved the constitu tionality of the entire Act.

ceeding; he was placed just in the situation in which he stood before he fled, and might prosecute his right in the State to which he belonged." But this admission that the person claimed as a fugitive from labor is, by the operation of the Act, "placed just in the situation in which he stood before he fled," is, in itself, a recognition that the rights of the parties under the national law are decided without the test of a trial by jury. The utmost effect that can be given to the owner's claim under the provision is to place the fugitive just in the situation in which he stood before he fled.'

922. In Jack v. Martin (1834), 12 Wend., 311-14, ib. 507 (ante, p. 446), the question of the constitutionality of the Act of Congress was involved, as well as that which was principally examined by the Supreme Court, viz., whether the State had either exclusive or concurrent power to legislate in carrying the constitutional provision into effect. The constitutionality of the Act of Congress, in respect to the guarantee of jury trial, appears to have been fully discussed on the argument, or, at, least, on the argument before the Court for the Correction of Errors; see 14 Wend., 515, 521. But, in the opinion of the court below, little notice was taken of the question, and the Court for the Correction of Errors declined to express any opinion on the constitutionality of the Act of Congress. Judge Nelson's language, even in supporting the legislation of Congress, is, in this connection, very remarkable. He said, 12 Wend., 324: "It has been said that, under the law of 1793, a free citizen might be seized and carried away into captivity, and hence the necessity of the law of the State giving him a trial by jury upon the question of freedom. This argument is

In Hill v. Low (1822), 4 Wash. C. C., 327, the action was for the penalty for obstructing the plaintiff in arresting the supposed fugitive for the purpose of bringing him before a magistrate; ante, p. 630. In Commonwealth v. Griffith (1823), 2 Pick., 11, the question was only of the right of seizure without a warrant. The arguments of Judges Parker and Thacher on that point have, however, a bearing on the present question; see ante, p. 552. In Worthington v. Preston (1824), 4 Wash. C. C., 461, the action was against the jailor for escape of a slave placed in his custody by a claimant, who had obtained a certificate under the statute. But, as the jailor was held not responsible, the validity of such a certificate was not affirmed; ante, p. 630. In Fanny v. Montgomery (1828), 1 Breese, 188, there was no decision bearing on this question; ante, p. 631, note. In Johnson v. Tompkins $1833), 1 Bald. Č. C., 571, there was no certificate on claim, and the rights of the parties were determined by the State law, or by the provision in the Constitution, irrespectively of the Act of Congress. See ante, P. 441.

plausible, and the justice of it difficult to deny ; but, sound as it is, it tends only to prove the defectiveness of the law of Congress, not the authority of the State. It would be appropriate and pertinent, when urged before that body, to effect an amendment of the law; but it would be a most sweeping and dangerous position, if sufficient to justify the authority to amend it by State legislation." Judge Nelson here seems to hold that a court may admit that an Act of Congress is unconstitutional, and yet recognize the legality of the action prescribed by that Act, because the State has no power to supply deficiencies in the legislation of Congress. In his further answer to the same objection (after an argument from the undisputed surrender of fugitives from justice) Judge Nelson seems to argue that a State judge should not examine into the validity of an Act of Congress, because the national judiciary has the power to correct injustice or error committed by the subor dinate court or magistrate who, in the first instance, is called upon to apply the law of Congress. He says, 12 Wend., 325: "If the magistrate should finally err in granting the certificate, the party can still resort to the protection of the national judiciary. The proceedings by which his rights have been invaded. being under a law of Congress, the remedy for error or injus tice belongs peculiarly to that high tribunal.' Under their ample shield, the apprehension of captivity and oppression cannot be alarming." According to this reasoning, the State judiciaries should never examine into the validity of an Act of Congress.

In his Opinion, in the Court for the Correction of Errors, Chancellor Walworth assumed, as admitted, that the negro claimed in this case did owe service, and had escaped. But he said, 14 Wend., 525: "But suppose, as is frequently the case, that the question to be tried relates merely to the identity of the person claimed as a fugitive slave or apprentice, he insisting that he is a free, native-born citizen of the State where

How is this assertion consistent with the doctrine that the magistrate exer cises special authority, see ante, pp. 618, 619, notes; or with the doctrine of Barry v. Mercein, 5 Howard, 103, that no appeal lies to the Supreme Court from a decision on habeas corpus, in the Circuit Court, or that of Metzger's case, ib. 176, that no appeal lies from a decision of a judge at chambers?

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.

2 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.

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 jurisdic tion. But this, as has been shown, has never been established by judicial decision.