Page:Unconstitutionality of the Fugitive Act.djvu/30

30 (amendment 7) may well be construed to embrace all suits which are not of equity admiralty jurisdiction. whatever may be the peculiar form which they may assume to settle legal rights." We have already seen that the legal right of the claim must be settled before a fugitive from labor can be delivered up. We have already seen that a suit is hold to be "the prosecution, of some claim, demand or request." The conclusion seems to be irresistible, therefore, that the prosecution of the claim to a fugitive from labor, or resistance to such claim by legal proceedings on the part of the fugitive, is a suit, nor in equity or admiralty, and hence at common law, within the purview of the Constitution. Of course, I do not pretend to say that such a proceeding is technically a suit at common law: nor is a proceeding by foreign attachment. and many other proceedings which are held to be embraced by the jury provision of the Constitution Authorities might be multiplied on this subject, were it necessary.

Again it is said that the constitution evidently contemplates a summary mode of proceeding in the case of a fugitive from labor. Where is he evidence of it? Nothing of the kind is found in the history of the provision nor in its pathway to the constitution, Nothing of the kind is apparent from the language used: for it distinctly imports a trial of the claim, and a determination of the fact that labor or service is due to the claimant before a delivery can be made. When the evidence of such intention is furnished, there will be time enough to trample, down all the forms of law, and set at naught every settied rule of construction. But, admit the fact. A provision may be made for obtaining a jury in a summary maner, as is sometimes done for the trial of the right of proprty, seized by attachment. But I can pursue this subject no further.

Again, a constitution provides that no person shall be deprived of life, liberty or property, without due process of law, This last phrase has a distinct technical meaning, viz.: regular judicial proceedings, according to the course of the common law, or by a regular suit, common need and prosecuted according to the forms of law. An essential requisite is due process to bring the party into court. It is in accordance with the first principles of natural law— Every person is entitled to his "day in court," to be legally notified of the proceedings taken against him, and duly summoned to defend. The passing judgement upon any person without his "day in court," without due process or its equivalent, is contrary to the law of nature, and of the civilized world, and without the express guaranty of the constitution, it would be implied as a fundamental condition of all civil government. But the 16th section of the act of 1850, expressly nullifies this provision of the constitution. It provides that the claimant may go before any court of record, or judge in vacation, and without process, make proof of the escape and the owing of service or labor; whereupon record is made of the matters proved, and a general description of the person alleged to have escaped; a transcript of such record made out and attested by the clerk, with the seal of the court, being exhibited to the judge or commissioner, must be taken and held to be conclusive evidence of the fact of cape, and that service or labor is due to the party mentioned in the record, and may be held sufficient evidence of the identity of the person escaping.

Here is, a palpable violation of the constitution. Can that be said to be by due process of law, which is without process altogether? Here the status, or condition of the person is instantly changed, in his absence, without process, without notice, without opportunity to meet or examine the witnesses against him,. or rebut their testimony. A record is made which is conclusive against him "in any State or Territory in which he may be found" It is mot a process to bring the person before the court in which the record is made up, but it is, to all intents and purposes, a judgment of the court or judge, which commits the person absolutely to the control ans possession of the claimant, to be taken whithersoever he pleases, robe dragged from a State where the legal presumption is favor of his freedom, to any State or Territory where the legal presumption is against his freedom.

Is not this depriving a person of liberty without due process of law? Other Courts and other Judges may pronounce this provision of the act of 1850 to be in conformity with that provision of the Constitution which deeclares that " no person shall be deprived of life, liberty or property, without due process of law," but while I have a mind to reason and a conscience to dictate me, and an oath to support the Constitution of the United States resting upon my soul, I cannot so declare it, and for the price of worlds I will not.

Upon this branch of that act I am not aware that there has been any adjudication. Certainly here has been none that can be claimed as authority here The same may be and in regard to the trial by Jury. There are other points equally fatal to this act when tested by the Constitution, but I have not time nor inclination now to discuss them.

I ought not to dismiss the consideration of this question without particularly adverting to the case of Prigg vs The Commonwealth of Penn., 16 Peter's Rep. 540. The opinions in the other cases rated are so conflicting, casual, or incidental as to be of so force and of the case of Priffg vs. Penn., it may be justly remarked that the discrepancy of opinion among the members of the Court was so wide and fundamental, as greatly to impair the authority of that decision. It arms the constitutionality the act of 1793, upon contemporaneous exposition, in one respect, and expressly decries the same rule in another, for it pronounces the act constitutional in part, and unconstitutional in another part. Whatever of authority may attach to it in consequence of the character and eminenece of the men who passed it, and of him who signed it. is effectually counteracted by the decision of the court that in one part of it, at least, the constitution was violated.— Contemporaneous construction confers the power of legislation and execution upon the States as well as Congress; for, long before Congress assumed to act upon the subject the State Legislatures had passed laws in fidelity to the compact, in most of which some of the framers of the Constitution had seats, and all of the slave States, and all or nearly all the free States continued to exercise the power up to a very recent period.

Contemporaneous history,contemporaneous exposition, early and long continued, acquiescence, all go to show the interpretation given to this provision of the Constitution by the States and the people. The slave States passed acts to execute the compact. The fee States did the same. The action of the several States, or many of them, shows conclusively that they interpreted the provision as a compact merely addressed to the good faith of the States. The slave States appealed to the free States for legislative action to carry into effect this provision of the Federal Constitution, and demanded of the latter the stern. exercise of a power which it is now sought to wrest from them. In 1826, the State of Maryland appointed commissioners to attend upon the session of the Legislature of Pennsylvania and induce the latter to pass an act to facilitate the reclamation of fugitive slaves. Their mission was successful. Pennsylvania yielded to the solicitations of Maryland's commissioners. and passed the act of 1826, which was afterwards declared void by the Supreme Court of the United States in Prigg vs. Pennsylvania, at the suit of' Maryland. In 1838 or 1837, similar commissioners were appointed by the State of Kentucky to the State of Ohio whose mission resulted in the passage of most stringent fugitive act by the Legislature of Ohio. So. also, about the same time, in regard to Indiana, and I be live Illinois. Up to 1837, the States esteemed it their duty, and Slave States demanded its performance, to provide by law, for the execution and faithful observance of this compact. All seemed to regard it as a compact and nothing else; blinding, it is true, and operative as law equally upon all, but still a compact and a compact only.

Again, it is respectfully suggested, that the whole argument of Mr. Justice Story is based upon what is sometimes called the petitio principii. He assumes that the Constitution makes it the duty of the Federal Government to enforce the right of the owner secured by the compact, and then inters that it must necessarily have the power. and then. if Congress has it, the States cannot have it.

All admit that there is no express power in the Constitution to legislate upon this subject, but it is claimed to be necessarily implied, as incidental to the grant of judicial power. The reclamation of a fugitive is first decided to be a "case" arising under the constitution of the United States and hence within the judicial power. But this mode of implying powers can never be sustained. The judicial power is extended in several respects beyond the legislative power. The judicial has jurisdiction in cases arising between citizens of different States. A citizen of New York may sue a citizen of Wisconsin, upon a promissory note, bill of exchange, covenants in a deed in partitions of real estate, or even in ejectment for the! o session or title to lands. If a power of legislation may therefore be grafted by implication upon a judicial power, Congress may assume the whole power of legislation over these subjects in the respective States, an