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WHITON AND CRAWFORD, JJ., IN BOOTH'S CASE. 715

he has escaped. By force of the Act of Congress under consideration, the record made in the State from which he is said to have escaped is conclusive evidence that his status is that of a slave.

"The commissioner is obliged, if his identity is proved, so to adjudge, and the certificate which is given to the claimant is given because the commissioner has so adjudged. Moreover, the commissioner can only give the certificate to the claimant, who must be the person to whom the labor or service is due, his agent or attorney, and it is given to him for that reason. It is not material to inquire what the condition of the person will be when he has been taken to the State where the service or labor is said to be due. He may regain his freedom; but, if he does, it will be by force of the law of the State, and not by virtue of the Act of Congress under consideration; for under that he has been adjudged a slave, and by force of it he has been taken as a slave by the person adjudged to be his owner, his agent or attorney, from the State where he was arrested, to the State from which he is alleged [70] to have escaped. We are, therefore, obliged to conclude that the alleged fugitive from labor is taken back to the State from which he is said to have escaped, as a person who has been proved and adjudged to be a slave, and, as we believe, without due process of law, without having his rights passed upon and determined by a jury of his peers. We think it essential that his right should be maintained by all courts and all tribunals, and for the reasons above given we must affirm the order made. in this case, discharging the relator."

§ 929. The remarks of Judge Crawford, 3 Wisc., 83-85, dissenting from his associates on the question of the validity of the Act of Congress in this respect, are given in the note.'

13 Wisc., 83:-"The right of trial by jury is highly and justly esteemed, and is expressly protected and preserved by our State constitution; and it cannot be denied that this right extends to all persons within the State, regardless of color, and to the fugitive from labor or slavery as to the freeman, in all that relates to or affects his life, liberty, or property, subject to the several provisions of the Constitution of the United States. But suppose that a demand by the executive of any other of the States of this Union upon the Governor of this State has been made, to surrender any citizen, whether he be white or black, upon a charge of felony committed in the State from which the requisition comes. It may be that, as in the case of an unfounded claim upon the labor and service of the alleged

They are only a repetition of the arguments advanced in earlier

cases.

§ 930. In the cases of Bushnell and Langston, 9 Oh., 177, this question was not considered material by the majority of the court. Judge Swan does not examine it at all. Judge Peck, immediately after a passage already cited,' in which he affirms the question immaterial in that case, asks (ib. p. 213): "But is it true that those provisions are so clearly unconstitutional as to authorize this court to pronounce them, and the law in which they are incorporated, invalid? This is certainly not the case if the repeated decisions of the Supreme Court of the United States," &c., referring to Prigg's case and Booth's case. "Nor are we," he adds, "without decisions of the highest State tribunals to the same effect," citing particularly the words of Judge Tilghman in 5 S. & R., and Judge Shaw's opinion in Sims' case, and mentioning other cases, together with 2 Story's fugitive slave, the person demanded as a fugitive from justice ought not to be delivered over; and yet, if the requisition be in due form of law, and accompanied by the proper evidence that the person is charged with the offence, the right of trial of the fact is not afforded to him here; but he is apprehended, deprived of his liberty, and transported to another and perhaps a distant State for trial Could this be done except by virtue of a provision of the Constitution, or a treaty? There would seem to be no real difference between the demand of a fugitive from justice, and the claim of a party to whom it is alleged labor or service is due.

"In either case there is a deprivation of personal liberty without the intervention of a jury; but it is considered essential to the complete enforcement and fulfillment of the constitutional compact, that a temporary deprivation should be permitted in the individual case, in order that the constitutional right may be secured. It is true that, in the case of a fugitive from justice, he is given into the custody of the officers of justice, with the beneficent presumption of the law in favor of his innocence, until he shall have been duly convicted; while, in the case of the fugitive from labor, he is placed under the control of his claimant, to be carried back to the State from which he is charged to have fled, with no presumption in favor of his freedom; but this is, I think, more an argument against the policy and justice and humanity of the law, than against its constitutionality. A case might arise where, by false swearing and conspiracy, a freeman, by the machinery of this law, might be snatched from his liberty and reduced to the condition of slavery, until, by a suitable proceeding, he asserted and obtained his freedom; but so, also, by similar means, an innocent man may be carried away, charged with crime, and placed under the necessity of vindicating his innocence in a distant State,"

Here the judge cites from Story's Commentaries, and from Sergeant's Constitutional Law, the passages which are given post. § 932. He then adds:

Assuming that the framers of the Constitution had in view the cases of fugitive slaves only, and that their object was to secure the delivering up of such fugitives on claim of the owner or person to whom the labor is due, it would seem obvious that, if a trial by jury may be insisted upon, the determination of the question might be protracted in various ways, so as to defeat the very object of the constitutional provision."

1 Ante, p. 569.

Comm., §§ 1811, 1812, and Sergeant on Const. Law, 398, as sustaining the validity of the law against this objection. Judge Peck relied apparently on this authority entirely.

Judge Brinckerhoff, in his dissenting opinion, does not discuss this point. On page 222 of the report he says, however, that the person who had been rescued had been "deprived of his liberty without due process of law," contrary to the fifth Amendment.

Judge Sutliff, on page 246, referring to the same Amendment, argues that "the phrase was understood then, as it had long before and has ever since been understood, to mean, in its legal acceptation, a suit instituted and conducted according to the prescribed forms and usages of courts of justice for ascertaining guilt and determining title. No one then understood, and no one now understands, the phrase to be of less comprehensive import."

"Article 7," he adds, "provides that in suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be inviolate. And it may properly be held that a person's claim to his liberty, or a claim for his future services for life, is a claim of sufficient magnitude to give the right of trial by jury under this provision of the Constitution.

"Previous to and at the time of the adoption of the Constitution it is said that the common-law writ, de homine replegiando, for the purpose of trying the right of the master to the service of the slave, was well known to the laws of the several States, and was in constant use for the purpose, except so far as it had been superseded by the more summary proceeding by habeas corpus or by local legislation.

"If, then, it should be said that the provision in the Constitution, 'no person held,' &c., contemplated a summary surrender and extradition, the answer is at hand. In the first place, there is nothing in the language of the provision, or in its subject matter, contemplating a summary proceeding; but, on the contrary, from the language and object of the provision, it is evident that no surrender is promised or contemplated by the provision until the case provided for is shown; that is: 1st.

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 qualify. ing, 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."

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