SML Cb82 51 YALE UNIVERSny LIBR/iRY OBJECTIONS TO THE ACT OF CONGRESS, COMMONLY CALLED THB FUGITIYE SLAYE LAW ANSWERED, IN A LETTER TO HON^. WASHINGTON HUNT^ GOVERNOR ELECT OF THE STATE OP NEVV "^ORK. BY JAMES A. DORR, A MEMBER OF THE NEW YORK BAR. NEW YORK: 1850. sir: I propose to reply to the five objections which have been most frequently made to the Act of Congress of Sep tember 18th, 1850, commonly called the Fugitive Slave Law. »- My object is to remove doubts as to the constitutionality, legality and propriety of Jihis Act from the minds of good citizens, who are sincerely seeking the path of duty. I shall therefore use language, certainly legal, but as little as possi ble technical. FIRST OBJECTION. That the Fugitive Slave Law deprives persons of the right of Habeas Corpus, and that therefore the Act is un constitutional and illegal. REPLY. The right of Habeas Corpus is a right of a prisoner, in •certain Cases, to be taken before a magistrate, in order that the legality or illegality of his imprisonment may be invest igated and decided by the magistrate. This right is con firmed by Section 9th, Article 1st, of the Constitution •of the United States, in which it is declared that "the " privilege of the writ of Habeas Corpus shall not be sus- "' pended, unless when, in cases of rebellion or invasion, ^' the pubUc safety' may require it." This right fs also ¦confirmed by Section 4th, Article 1st, ofthe Constitution of the State of New York, and by the Constitutions of all the several States of the United States. , The right of Habeas Corpus is not mentioned in the Magna Charta of Great Britain, though it is claimed as a ri^t at common law. The writ of ETabeas, Corpus is not grantable of course, but on motion stating a probable cause for the application. If the evidence produced to support the application show the legality of the impris onment, it is the duty of the magistrate to refuse to grant the writ, and the prisoner must remain imprisoned. The Fugitive Slave Law impairs no right of Habeas Corpus which existed before the passage of this law. Application for the writ may be made as freely as could have been done if this law had not been passed r and there is nothing in the law to prevent the granting of the writ upon proba ble illegality of imprisonment being shown by the evidence produced in support of the application. These great prin ciples, of law . have been clearly and forcibly set forth by Attorney General CRiTTEwnEN, and Justice Grier, in their opinions recently' published. But I go further than Mr. Crittenuen and Justice Geiee; in reply to this first objection, smd hold that the Fugitive ' Slave Law is virtually and substantially a law, extending THE BENEFITS OF HABEAS CORPUS, IN CER'TAIN CASES, TO fugitive SLAVES, AND TO PERSONS CLAIMED AS FUGI TIVE SLAVES. The substantial . benefit of Habeas Cor pus, is the right to a speedy examination by a compe tent magistrate, of the legality or illegality of the im prisonment complained of. The sixth Section of tbe Fu gitive Slave Law, provides for this most amply. - No effectual action can be had under and by virtue of the sixth Section of this law, unless the person arrested shall " be taken "forthwith before the Court, Judge, or Commis.iioner, whose "duty it shall be to k^ar and determine the case ofthe claim- " ant in a summary manner." The proceedings before the magistrate are precisely the same as proceedings in Habeas Corpus. The duty of the magistrate is precisely the same in both cases — namely : to hear and determine upon the legality or illegality, of the imprisonment. Any and all things which might be argued or urged in proceedings un der Habeas Corpus, may be, withr equal' force and effect ar gued or urged before the magistrate under this faw. The jurisdiction of the magistrate himself, and the constitution ality and legality of, the Act itself, may be drawn in ques tion. Further than this, by Section 6th, of the Fugitive Slave Law, the claimant must produce " satisfactory prQof to the magistrate, " that the person so arrested does in fact " owe serv^ice or labor, to the person or persons claiming, 5 " and that said person escaped." — " Satisfactory proof ," by which is meant good and sufficient legal, equitable and tech" nical proof, the burthen being upon the claimant and the benefit of doubt belonging of right lo the prisoner : so that if the claimant fail in a single point, whether of form or sub stance, meritorious or technical, the prisoner is entitled to, and, as in the case of Henry Garnett, recently decided by Justice GeiSr, will have his discharge. It is to be noticed, also, that the sixth Section of the law is imperative, commanding the claimant, to take the person of the alleged fugitive before the magistrate for a hearing and determination of the case '^forthwith," which means without any delay, — so that a claimant, voluntarily and wil fully keeping the person arrested in imprisonment, and de laying to take him' before the magistrate, would forfeit all remedy and redress under the law, — but the law is not im perative in commanding the magistrate to determine forth with, it leaves to the magistrate full discretion, and it is the duty of the magistrate to suspend his determination against the alleged fugitive, until his mind shall be clearly satisfied with the proof produced. Thus we have seen, that in a ¦ recent case at Detroit, the alleged fugitive was allowed time to send from Detroit to Cincinnati, to procure evidence on his behalf to be used at the hearing of the case, which was postponed for his advantage. Besides, it must be re membered, that cases under this law, will occur only in the Northern States, in which the magistr.ates, will of course feel the strongest disposition to insure a fair hearing to the alleged fugitive. , Having thus shown that the proceedings under this law, grant to the alleged fugitive, in certain cases, the substantial benefits ofthe writ of Habeas Corpus, I proceed in confirm ation and enlargement of the same idea, to point out a great advantage, which this law practically confers upon the fugitive, and upon alleged fugitives.. The Constitution of the United States, Article 4th, Section 2d, declares, that "No " person held to service or labor in one State under the laws ¦ ^' thereof, escaping into another, shall, in consequence of any " law or regulation therein, be discharged from such service " or labor, but shall be delivered up on claim of the party to "whom such service or labor may be due." This Section of tKe Constitution contains verbal and grammatical errors and faults of construction, but its meaning is evident, 6 pamely, that any person held tp service, &q., shall be. cleli- vered up on claim of the party, to whom such service or iabor may be due. The fugitive shall be delivered up," on "claim." What claim? Manifestly on legal claim mai^ before a magistrate, competent to hear such claim. If the word " claim" do not mean this, it means nothing, an4 may be stricken out of the Constitution wJth its dependent words. It has been decidied heretofore, (Prigg vs. the Com monwealth of Pennsylvania, ,16 Peters, 539,) by the Su;, preme Court of the United States, that the owner might, in virtue of the Constitution, and his own right of property at common law, seize and recapture his fugitive slave, iu whatsoever State he might find him, and carry hitn back to the State from which he escaped- But it has been found that the remedy at common law alone, even if it Ihepret- ically exist, is practically ineffectual, so that the owner of the fugitive must resort to his remedy under the laws ofthe United Slates ; and now that a special mode in which^ and magistrates before whomi claims should be made, are prp- vided and pointed out by Congress, through this law, it will be practically necessary that the claimant should conform to the spirit and letter of this law in the prosecution of his claim. ,,It is fairto siippose that this consequence, was con^ templated and intended by the framer of the. bill, but, whether contemplated or not, it is a legal Eind proper conser quenee, which will secure to alleged fugitives the benefit of a speedy hearing before the magistrate appointed, and thus procure for them, substantially, the benefits, pf thO; writ 0f Habeas Corpus. SECOND OBJECTION. That the Fugitive Slave Law deprives persons of the right of trial by jury, and that, therefore, the Act is uncon stitutional and illegal. REPLY. This objection is founded upon the error of supposing that before the passing of this Act, fugitives from service were entitled to trial by jury. The right of trial by jury is a right secured to citizens bf 4he United States, in certain cases, by constitutions and statute laws. It is doubtful whether the right to trial by jury in any case exist at common law, strictly so called. By some legal authorities the origin of trial by jury is attribu ted to the Greeks. In England the custom of trial by jury has been interrupted by, or existed concurrent with, other forms of trial from time immemorial. But these doubts and questions, important as they may be, are immaterial to the present purpose, because the right of trial by jury has been adopted and confif-med to citizens of the United' States, by constitutions and express statutes, to the fullest extent that it was ever enjoyed by any people under the common, or any other, law. The Magna Charta of Great Britain, (a local statute or law of the land of Great Britain, by iio means applicable to, or the law of the land in the United States, inasmuch as the greater part of its provisions are feudal and monarch ical in their nature), declares. Section 29th, " that no free- " man shall be disseized of his freehold, imprisoned and " condemned, but by judgment of his peers or by the law of " tbe land," — nisi per legale judicium parium suorum, vel per "legem terrae." It refers to freemen, not to bondmen; it declares that they shall tiot be " imprisoned and conderhned," thereby implying a previous judicial aceusatioUiVbut by judg ment of their peers," who for aught contained in Magna Chaf- ta may or may not be twelve, " or by the law of the land," thereby providing for other forms of judgment than the judg raent of bis peers, with no limitation of the forms except that they shall be the law of the land. The attentive reader will* perceive how little foundation there is in Magna Charta for the opinion that the right of trial by jury is therein absolutely secured to citizens in all cases of imprisonment. Magna Charta spec^cally declares, that judgment of one's peers shall not be the only form of trial, but ihaiE a freeman may be imprisoned and condemned by other forms known as the law of the land. The 29th Section of Magna Charta, be fore quoted, is the historical origin of the guarantees of trial by jury, in certain cases, which may be found in the Consti:- tutioni of the United States, and in the Constitutions of the several States. By carefully reading the -sections of those supreme laws relating to the subject, it will be noticed that the provision of Magna Charta has been essentially nriodified in these Constitutions. > . . The Constitution ofthe United States, Article 3d, Section 2d, provides, that " the trial of all crimes, except in cases of " impeachment, shall be by jury, and such trial shall beheld "in the State, where the said crimes shall, have been com- " mitted." The Sixth Article of the Amendments to the Constitution of the United States provides, that " in all cri- " minal prosecutions, the accused shall enjoy the rightto a "speedy and public trial, by an impartial jury of the State " and district wherein the crime shall have been committed." If it be a "crime" for a person held to service to escape from the party, to whom such service may be due, or in other. words if a Fugitive Slave be a criminal, it is evident that under the provisions of the Constitution of the United States just quoted, even if there had been no special provision for the case, it would be the duty of tlte proper authorities to deliver up such fugitive to be removed to the State, where the crime of escape was committed, to take his trial in that- State from which he had escaped. In the Fifth Article of the amendments of the Constitution of the United States it is provided that " no person shall be deprived of his liberty with- " out due process of law." In the Seventh Article of the amendments of the Constitution of the United Slates,.it is provided, that " in suits al common law where the value in " contrpversy shall exceed twenty dollars, the right of trial' " by jiiry shall be preserved ." The Constitution of the State "of New- York, Article 1st, Section 1st, declares, that "No " member of this State shall be disfranchised or deprived of " any of the rights or privileges secured to any citizen there- " of, unless by the law of the land, or the judgment of his peers ;" and Section 2d declares that " The trial by jury, in " all cases in which it has been heretofore used, shall remain "inviolate forever." The Constitutions of all the several States contain similar provisions, being modifica|ions of the 29th Section of Magna Charta of Great Britain. These provisions of the Constitutions, above cited, contain the sum and substance ofthe fundamental laws of this country upon the subject of the right of trial by jury. The impartial- reader will notice how very far they are from justifying the assertion that a fugitive slave is entitled to triaLby jury in the place in which he may be arrested. Criminals are cer tainly entitled to trial by jury, but where ? this is the point, where ? why in the State in which the crime was commiUesdi 'I No person shall be deprived of his liberty withoid" — what ? " — without due process of law" — not without trial by jury.-* 'Mn suits at common law, where the value in controversy '* shall exceed twenty dollars, the right of trial by jury shall " be preserved." Is the claim for a fugitive slave under the Fugitive Slave Law a " suit at common law "? , If a suit at all, is it not under the express statute of the United States ? Can there exist a suit al common la:w for the recovery of ii slave, wiren it is held that the common, law does not recog nise slavery ? The Constitution of the United States, Article: 6th, de clares that "this Constitution and the laws of the United '^States which shall be made in pursuance thereof, and all " treaties made or which shall be made under the authority " of the United States shall be the mipreme law of the land, " and the judges in every State shall be bound thereby, " anything, in the Constitution or laws of any State to the "contrary not'withstanding." The Constitution ofthe United States has been adopted and' confirmed by all the several States, so- that there can be no question that the Constitution arid laws ofthe United States are "the supreme law of the "land :" and Tieing the supreme law of the land, it follows that there can be no higher law of the land. It follows further that any moral or metaphysical law called a higher law cannot be the law of the land ; and it follows further that to disobey the supreme law of the land, in obedience to any such pretended higher law, is rebellion. It is distinctly and clearly provided and enacted by andunder the Consti tution and laws of the United Slates, that a fugitive, proved, to 'the satisfaction of the magistrate appointed, to owe ser vice to another, shall on claim be delivered up to the owner of those services : and if the Constitution and laws of the United States in providing for this matter had inter- # fered with, nay, if they had entirely suppressed trial by jury in such cases, whatever might be our private opinions as to the wisdom or expediency of such enactments, there can be no doubt that the enactments would be the supreme law of the, land. But happily the Constitution and laws of the United States do not interfere at all with , the right of an alleged fugitive to trial by jury — that right remains to the alleged fugitive as fully as it existed before the passing of this Act, s.riA there is nothing in the Act to destroy or to impair any such right in the smallest degree. ' The Fugitive SIa,ye Law provides that the fugitive satisfactorily proved to owe services to another shall be delivered up to the owner ; 2 10 and it also provides for the removal of thes fugitive . tO; the State from which he escaped, but there the laws of, t|ie United States leave him to be disposed of or. dealt _wilh- according to the laws of that State of whidh he ori|i»ialli^ was and continued to be the subject or citizen. It iis pro vided by the laws of the Southern States that persons held as slaves claiming to be freemen shall be entitled to trial of the fact by jury. This is the case, I believe, in each and all of the slaveholding States ; and if we may rely upon the numerous decisions given by Southern Courts under those> laws, they are faithfully and fairly administered;: I do "Bot doubt that they are so. But however interesting this, quesi- tion may be on the score of sympathy and humanity, it has little to do with constitutional or legal right^.... Thei United' States may be regarded, (now since the unanimous adoption ofthe Constitution), as one great legal body, corporation or country, and in this view the delivery arid transfer of a, fu gitive, who claims the right of trial, is merely a settlement or change of "venue," as it is called, or place of trisil. The United States may also be regarded as a league or union of so'vereign States by virtue of a soleriin compact; dt TREATY called the Constitution of the United States. It is intended to be a treaty of perpetual peace, amity, and alli ance ; and in so far as it is a treaty, it is, according to the law of nations, the highest law of the land of each of the sovereign contracting parties, and ?is such would' have an* premaoy over, and take precedence of, all internal and municipal regulations ofthe several parties, even if this supremacy had not been distinctly declared aind confirrned in the instrument itself. This treaty may be altered and amended in the way provided by it, but, like any othier treaty, it cannot legally be abrogated or annulled except by the unanimous consent of the high contracting parties. THIRD OBJECTION. That the appointment ofthe Commissioners, autboris^ to !3,ct under the Fugitive Slave Law is unconstitutional and illegal. . ' REPLY. If there be any force in this objection, it applies to only a part of the law ; ' namely, to some of the magistrates 11 naitned and authorised to execute it, and leaves it tb be en^ forced or administered by the judges of the Courts of the United States, who are also empovrered to act under it. But there is no ground whatsoever for the objection. The Qcttistitutibn of the United States, Article 3d, Section 1st. declares, that "the judicial power of the United States "shall be vested in one Supreme Court, and in such inferior " Courts as the Congress may from time to time ordain and "^tablisli. The judges; both of the supreme and inferior " Courts, shall hold their offices during good behavior ; and " shall, at stated times, receive for their services a compen- "f^ation which shall npt be diminished during their continue " ance in office." Article 2d, Section 2d, declares, that " the " President shall nominate and appoint Judges of the Su- " preme Court and all other officers of the United Stales " whose appointments are not herein otherwise provided for, " and which shall be established by law. But the Con- " gress may, by law, vest the appointment of such inferior of- " ficers as they think proper, in the President alone, in the "Courts of Law, or in the heads of departments." Now, whether or not these commissioners are ministerial officers of the Courts of Law appointing them, or, as I incline to think, rather, special officers and agents of the United States, tP hear and determine whether or not alleged fugi tives shallbe discharged' from arrest or delivered up to the laws of the States' which have rightful jurisdiction over them ; or whether or not they are Judges of inferior Courts, I shall not discuss, — for it seems to me that the Consti tution of the United States expressly authorises their appointment, whatever the nature of their office may be, — Every commissioner to take testimony is in some sense a judge., Every constable is ih some sense a judge,' author- isedj in certain cases, and in his discretion, to arrest and imprison his fellow citizens. Whatever these commission ers may be, they are appointed according to the spirit iand letter of the Constitution of the United States. A trivial and, captious objection hap been made to the form of compensation provided for these commissioners.. The objector, assuming that these commissioners are judges of the United States, and assuming further that they are the Judgeis meant in Article 3d, Section 1st of the Constitution, above cited, objects thjajt the . commissiqners ought to be paid by a salary, and not by fees becoming due vvhen the 12 services are rendered. The Constitutions says' that the jtidges of the United States, " shall, at stated times, receive "for their services a compensation which shall not be di-' "Ininished during their continuance in office." The intent of the clause is to protect the judges from political influ ences, throughthe.delayor diminution of their coiiipensation, and if these commissioners be judges meant by this Section of the Constitution, it will be unconstitutional to delay or dimin ish their present compensation. But the objector may say, that the phrase, " at stated times,'' means on certain daysiof the year, and excludes incidental fees. The word " to state" is defined by Dr. Johnson, "1st, to settle, to regulate; ad, "to represent in all the circumstances 'of modification." The Act conforms strictly to these definitions in providing for the compensation of these commissioners. The times of the payment of compensation to these commissioners, are "settled" and "regulated" by the Act, to be the times of the " delivery of the certificates," or of rendering thevOther services mentioned. So that, even if we admit, what is hy no means the truth, that these commissioners are "jjudgesi" in the meaning of Section 1st, Article Sd of the Constitu tion, it appears that this law conforraas to and. complies, with *he letter, as well as with .the spirit of . thes Constitution, j POURTH OBJECTION. That, inasmuch as the Fugitive Slave Law declares- "that "in no trial or hearing under the act shall the testimony >of " an alleged fugitive be admitted in evidence," — the law is unjust. REPLY. It is a maxim of the common law, that no one ought to be a witness in his own cause, "nemo testis esse debet in •' propria causa." This maxim is stated by Blackstone to be " an invariable rule ofthe law ofEngland," and the reafedn of the rule is said to be — "to avoid all temptations of per- "jury." 3 BI. Comm. 371. This argument in justification of the provision of the Fugitive Slave Law has been fdll;^ and forcibly set forth by Justice Grier, in his recently pub, lished opinion. ' - - ' But there is another argument which, itseems'lome, justi-