§ 945. By the above exposition of these constitutional guarantees, the objection against the two Acts of Congress, as violating the seventh article of Amendment by not allowing a determination by a jury of the issues arising on a claim for a fugitive from service under the provision, seems to be well founded. If this argument is of any force against the weight of authority on this point, it also confirms the conclusion, reached in the last chapter, that the action of the commissioners, according to the law of 1850, does involve an exercise of the judicial power of the United States.

§ 946. Among the means provided by Congress for the delivering up fugitives from labor, it is also necessary to consider the objection that the Acts of Congress, in authorizing a seizure of the alleged fugitive without a warrant, are in violation of the fourth Amendment, declaring that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

1

The cases sustaining the right to seize and remove the alleged fugitive from the State in which he is found, as a right given by the provision in the Constitution, would apparently be authorities sustaining the right to arrest under the legislation of Congress, as the less included in the greater; and there may be cases wherein a right to seize for the purpose of making a claim before public authority, is recognized as given by the

were held to violate the clause in the State Constitution "inhibiting the deprivation of property without due process of law." In the matter of John and Cherry Streets, 19 Wend. 676, Cowen, J., says that the clause means "that to work a change of property from one private person to another, some proceeding must be had in a court of justice," &c. In Taylor v. Porter, 4 Hill, 146, Bronson, J. :-" It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses before either of them can be taken from him," &c. By this last statement, controversies respecting the right of property seem included. But, admitting the application of the clause against the transfer of property, it does not seem to render the verdict of a jury necessary to such transfer, for, by the New York railroad law of April 2, 1850, sec. 49, the value of land taken from private persons is determined by commissioners. See Buf. & N. Y. R. R. v. Brainard, 9 N. Y. (5 Selden), 100.

See the objection taken by counsel in 2 Pick. 15, 9 Oh. 174. Judge Thacher's objection was that, as the law of 1793 had not specified how the arrest was to be made, an intention to follow the local procedure must be supposed. See ante, p. 553. "The term unreasonable is used to indicate that the sanction of a legal warrant is to be obtained before such searches or seizures are made." Rawle on the Const., 127.

constitutional provision, while the doctrine of removal without establishing such claim is rejected.'

In some cases the right to seize may be ascribed only to the legislation of Congress. But all the cases in which custody originating in such seizure has been judicially maintained, are authorities against the force of this objection.

The only argument judicially relied on,' in answer to the

1 In 9 Oh., 174, Mr. Wolcott spoke of the Act as intended to protect the claimant, not merely in arresting the fugitive for the purpose of making a claim before a judge or commissioner, but also in removing the supposed fugitive from the State without obtaining a certificate. But the Act has not been commonly so understood.

2 The argument of Mr. B. R. Curtis, in the Opinion written for the marshal, is, on this point, as full, probably, as any that has been given. It is as follows: "The objection to this law that it conflicts with the fourth article of the Amendments, which establishes the right of the people to be secure against unreasonable searches and seizures, seems to me to have no application to the case. It has been determined, upon great consideration, by the Supreme Court of the United States, in Prigg's case, that, by force of the Constitution itself, the owner of a slave is clothed with authority, without any warrant, to seize and recapture his slave. And this is in conformity with decisions previously made in the highest courts of several States, and, among others, of the State of Massachusetts (2 Pick., p. 11). It was also determined in Prigg's case, upon reasoning which it seems to me impossible to resist, that Congress has the power by legislation to afford means to enforce the delivery and secure the subsequent possession of the slave. Now, if the exercise of the right of recaption without any warrant is constitutional, I think it would be difficult to show that the exercise of this same right by the aid of a warrant, issued in conformity with an Act of Congress, designed to afford means to enforce the delivery, is not constitutional. It is well known that this fourth article was in affirmance of the doctrine of the common law, which prohibits general warrants, and was designed to restrain the government from making searches and seizures of the persons, houses, papers, and effects of the people of the United States, either without warrants, or upon warrants not conformable to the terms of this section. But if the class of persons now in question are not embraced in the word people, if they are not protected from seizure, if, on the contrary, the Constitution itself has conferred the right to seize them without warrant, it would be difficult to maintain that a seizure by a warrant is not allowed by the Constitution. In the case before referred to, in 2 Pick. R., Mr. Justice Thacher dissented from the other judges, because there was no warrant used. I have not known of any judge who thought the existence of a warrant an objection.

"Indeed, I see nothing in this Act of 1850 which would render it improper for the court, or the commissioner, to require the case to be brought within the very terms of the fourth article of the Amendments. The 6th section of the Act says the claimant may procure a warrant from some one of the courts, &c. It prescribes no rule to govern the action of the court in issuing the warrant. If it were at all doubtful whether the case be within this fourth article, I should suppose that any court would take care to have the preliminary requisites, made by this article, complied with. I understand they were complied with in the cases in which warrants have been issued here.

"It has been repeatedly suggested that this reasoning proceeds on the assumption that the person sought for is, in fact, a fugitive from labor, a fact which, when the warrant issues, still remains to be established. This is true; but it is none the less true in all other instances of legal proceedings. The law affords a remedy for a particular class of cases, describing that class of cases so as to dis

objection, seems to be that of Parker, Ch. J., in Commonw. 2. Griffith, 2 Pick., 17 (ante, p. 552), that, admitting the general application of the objection, the guarantee does not apply in the case of a person claimed as a fugitive from labor, because slaves were not or are not "parties to the Constitution."

The argument, if valid here, applies equally against objections founded on other guarantees in the Constitution, and has been already considered,'

But, on this point, the true doctrine may be, that a warrant for the purpose of making claim, according to the Acts of Congress, is not necessary under this Amendment, because it applies only in the application of punitive law.'

This being admitted, it would seem competent for Congress to authorize the claimant to arrest for the purpose of bringing the fugitive before the tribunal which is to determine the claim. But there is an immense distinction between allowing a seizure on this ground, and placing it on the basis (upon which so much has been built) that the person liable to the claim is a slave who, in the slaveholding State, might be seized by his owner.'

tinguish it from all others. Whenever any step in the progress of this remedy is taken before trial, it can only be upon the assumption that the case belongs to that class. Thus the law of this Commonwealth allows one who has a legal claim to attach the property of him against whom the claim exists. It does not allow one who has no legal claim to attach another's property. Yet, from the nature of the case, the attachment precedes the trial, and is made upon an assumption that there is a legal claim. So, when a demand for the extradition of a person charged with a crime in England is made here, the warrant must issue upon an assumption of certain facts, which, upon the examination, may turn out not to exist.

“I apprehend that if the law, on its face, describes a class of cases, and authorizes process only in those cases, it can never be an objection to the constitutionality of that law that, though it is valid when confined to those cases, it may by accident or malice be applied to others, not within its terms or meaning; which others, if included in the law, would have rendered it, as to those cases, unconsti tutional. The obvious reason is, that these latter cases are not embraced in the law, and therefore cannot affect it. It would certainly be a strange argument against the constitutionality of a new penal law, that persons who did the act made penal, previous to its being made so, might, by accident or malice, be punished under it. Yet it seems to me to be the same argument which I have been adverting to."

Ante, p. 726.

* Walker v. Cruikshank, 2 Hill, 300. In trespass: the plaintiff had been arrested under warrant issued without preliminary affidavit. Bronson, J.: “We are referred to the Bill of Rights, which provides, &c. * This relates to criminal process, and has nothing to do with arrests in civil suits. We have always had a Bill of Rights, and yet, until a very recent period," &c. Compare the arguments an'e, p. 553 note, and § 816.

3

§ 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."

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.

§ 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. It 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

testimony taken before magistrates of a State court in Georgia, and of the judgment 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, 333.)

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?