Page:Unconstitutionality of the Fugitive Act.djvu/29

Rh is brought back to the constitutional tack; but I repudiate the degrading insinuation that State officers are less faithful to the Constitution, than Federal officers. On the contrary, from the very fact that upon them is devolved the duty and responsibility of guarding the rights and sovereignty of the States under the compact of the Union, they must necessarily be more watchful of the exercise or assumption of power, on the part of the States respectively, and the general government, than the Federal officers would naturally be.

It may be again repeated, and cannot be repeated too often, that upon the States rests the immense responsibility of preserving not only their own sovereignty, but the just constitutional powers of the general government Let it also be remembered that the States and their civil functionaries are as essential to the existence and operation of the government of the Union, as are the peculiar officers of the latter. Each and all are parts of a united whole, and all are bound by the most solemn ties of fidelity to all and each.

What would be thought by the people of this country, should Congress pass a law to carry into effect that clause of the 4th article in regard to citizenship? And declare pains and penalties against any State functionary who Should fail to comply? What would be thought if Congress should declare it a penitentiary offence, for any executive of a State to refuse to surrender a fugitive from justice? What State would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law, or what Federal court sume to compel his obedience by mandamus? And yet the assumption of power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground. A bare statement of the proposition assumed, is its most effectual refutation.

The law of 1793 was in fact but little, if any more than organizing the State authorities, for the accomplishment of the constitutional duties devolved upon them. For that very reason it passed without scrutiny, and for a long time was obeyed without question. It was practically nothing more than the, Sates themselves carrying out the constitutional compact. Not until it began to be required that, the States should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early congress, and was signed by the Father of his country, and was acquiesced in by the States and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest ears of the Republic. So it must always be. But time, discussion and experience have heretofore proved adequate correctives. So may they ever prove. Added to these, State sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.

To my mind, therefore, it is apparent that Congress has no constitutional power to legislate on this subject. It is equally apparent, that the several States can pass no laws, nor adopt any regulations, by which the fugitive may be discharged from service. All such laws and regulations must be declared void whenever they are brought.to the test of judicial scrutiny, State or National. It is equally apparent, that it is the duty of the respective States to make laws and regulations, for the faithful observance of this compact. They have generally done so, and doubtless would have continued to do so, but for the decision of the United States Supreme Court, in the case of Prigg vs. Commonwealth of Penn. It is still their duty so to do.

Again, it is to my mind apparent, that the provision of the Constitution in regard to fugitives from labor or service, contemplates a judicial determination of the awfulness of the claim which may be made.

Mr. Butler, of South Carolina, who reported the clause for the first time, Aug. 29th, 17S7, framed its conclusion as follows: '"but shall be delivered up to the person JUSTLY claiming their service or labor." How was the justice of the claim to be ascertained? Who were to determine it? Fugitives were not to be discharged in consequence of any law or regulation of the rates to which they may have fled. Not discharged by whom? The federal government? No, but by the States, in consequence, or by virtue of any law or regulation therein.—"But shall be delivered up." By whom? Evidently by the same power which had covenanted not to discharge them. Shall be delivered up by the States, not seized by the federal government.

The clause, as finally adopted, reads—" but shall be delivered up on claim of the party to whom such service or labor is DUE." Here is a fact to be ascertained, before the fugitive can be legally delivered up, viz: that his service or labor is really due to the party who claims him.—How is the fact to be ascertained? A claim is set up to the service of a person. He who makes the claim is denominated by the constitution, a party. The claimant one party, the person who resists the claim is another party. If he really owes the service according to the laws of the State from which he is alleged to have escaped, he must be delivered up. If the claim is unfounded he cannot be delivered up. The constitution itself has made up the issue and arrange. the parties to it. Can any proposition be plainer than that here is suspended a legal right upon an issue of fact, which can only be determined by the constitutional judicial tribunals of the country? It bears no analogy to the extradition of fugitives from justice. In the latter case, no issue is presented by the constitution; judicial proceedings have already been commenced, and this is but a species of process to bring the defendant into court. No claim is to be determined. He is to be delivered up from the mere fact that he is charged to be removed to the STATE demanding him for trial.—He is placed in the custody, and under the protection of the law, in the regular course of judicial proceedings.—But in the former case there can be no delivery until the claim is tried and determined aid then the fugitive is delivered, not into the custody of the law, but into the possession and control of the party who has established his claim; not to be removed to another State or tribunal for trial, with the shield of the law over him, but to be reduced, without further process or trial, to absolute subjection, to be taken whithersoever the claimant may desire. In one case, the proceedings are commenced and terminated where the claim is made; in the other the suit is commenced where the offence. is committed, and the law sends out its process to bring the defendant to meet the issue. While that process is being served, thro' all its mutations, he is as much under the protection of the law as he who executes it, and, in its eye, both are equal.

Here there is a fact, an issue, to be judicially determined, before a right can be enforced. What authority shall determine it? Clearly the authority of the State, whose duty it is to deliver up the fugitive, when the fact is determined. Until the issue which the constitution itself creates, is decided, the person is entitled to the protection of the laws of the Sate. When the issue is determined against the fugitive, then the constitutional compact rises above the laws and regulations of the State, and to the former the latter must yield.

To my mind this seems very clear and simple. The whole proceeding is clearly a judicial one, and I will not stop here to demonstrate what, from the preceding remarks, appears so obvious. The law of 1850, by providing for a trial of the constitutional issue, between the parties designated thereby, by officers not recognized by any constitution, State or national, is Unconstitutional and void.

It has been already said, that until the claim of the owner be interposed, the fugitive in this State is, to all intents and purposes, a free man.

The interposition of a claim. by legal process, is the commencement of a suit. "A suit is the prosecution of some claim, demand, or request." 6 Wheat. 407. The trial of such claim is the trial of a suit. Therefore, the trial thereof must not only be had before a judicial tribunal, but whether proceedings be commenced by the fugitive to resist the claim of the claimant, or by the claimant to enforce and establish it, it would seem that either party would be entitled to a jury. It is no answer to this position to say that neither the States nor the General Government have provided the means for such a mode of trial. The constitutional right of the party remains the same. The late organization of our county courts failed to provide a trial by a constitutional jury, yet the supreme court held that the parties were nevertheless entitled to den.and it. If provision is not made for such a trial, it the duty of the proper authority to make it. Nor is it any answer to this position to say that the proceeding to reclaim and re-possess a fugitive from service, is not a "suit at common law." This question is already settled. It has'been judicially determined that the term "common law" was used in the Constitution in contradistinction to suits in admiralty or equity. Were it otherwise, Congress need only to change the common law form of procedure, to nullify the right of trial by jury in all cases.—See Story Com. 645, et seq.; 3 Pet. 446.

Mr. Justice Story says, "in just sense the