Page:Unconstitutionality of the Fugitive Act.djvu/33

Rh But if the conclusions we have arrived at are correct, the jurisdiction of no court is disturbed by issuing a writ of habeas corpus, and discharging a prisoner who has been committed by an inferior magistrate for refusing to procure bail for his appearance at some court, to answer for an alleged offense, or when bail has been refused and the prisoner is held in custody.

In Sims' case. (7th Cush. R.,) the Supreme Court of Massachuuetts saw no objection., on this account, to issuing a writ of habeas corpus to bring before the court, a prisoner in the custody of a Marshal of the United States, under a warrant issued by a Commissioner of the United States, through the court refused the writ for other reasons (See also 7th Cowan's R. 471; 10 Johnson R. 328.)

It was insisted by the counsel for the plaintiff in error, that our statutes (Rev. Stat. chap 124, sec. 21) interposed an insurmountable objection to the jurisdiction of a State officer, in a case like the present, because it provides that the officer shall, although the commitment be irregular, remand the prisoner to custody, or hold him to bail, if it appears from testimony offered with the return, that he has been guilty of an offense. 'In such a case, it is insisted that the officer acts as an examining magistrate, an whose duties he cannot discharge, if the offense prove is one of which the U.S. courts have exclusive jurisdiction. But we think, that whatever difficulties this section of the statutes may create as to the proposed course to be pursued by the officer, in a case of that description, IT SHOULD NOT BE CONSTRUED SO AS TO DEPIRVE A STATE COURT, OR OFFICER, OF THE POWER TO ISSUE THE WRIT IN ALL CASES, WHERE A CITIZEN OF THIS STATE, IS HELD IN CUSTODY ON THE GROUND OF AN ALLEGED VIOLATION OF A LAW OF THE UNITED STATES. The same difficulty would present itself', if a State magistrate, acting wholly without authority, should commit a person to prison, for refusing to give bail for his appearance at a court of the United States, to answer to an offense against the laws of the,United States.

There being no valid objection to issuing the writ and bringing the prisoner before the officer, the question arises whether the discharge of the prisoner was in accordance with law. The return of the Marshal to the writ of habeas corpus sets out substantially the same reason for the detention of the prisoner as that stated in the petition for the writ above given, so that there is no necessity for restating it. The first objection taken to the return, is, that it does not set forth a valid warrant. Upon this subject we fully concur in the opinion of the justice of this court who discharged the prisoner. The warrant fails to state any offense under the act of congress in question, inasmuch as it does not show for what purpose Joshua Glover, therein named, was in the custody of the Deputy of the Marshal. He may have been in custody pursuant to the act of congress, approved September 18th, 1850, and not have been arrested as a fugitive from labor. The warrant does not therefore state that the petitioner aided, abetted, or assisted a person who was arrested as a fugitive from labor to escape from custody. This is essential, in order to constitute an offense against the act of congress. We are aware that it is sufficient in a warrant to state the ofreuse without that particularity required in an indictment; but still there must be at least, a general statement of the offense, in order to justify the arrest.

It is further objected to the return of the Marshal, that, admitting Glover to have been arrested as a fugitive from labor, under the act of congress,approved September 18th, 1850, still, his arrest was unlawful for the reason that the act is repugnant to the constitution of the United States, and therefore void. And it is contended by the relator, that it can be no crime to abet or assist a person to escape from illegal imprisonment. The principal reasons urged in favor of this position of the relator, are, that the constitution of the United States confers no power upon congress to legislate upon the subject of the surrender of fugitives from labor—that the act in question attempts to confer judicial power upon commissioners, not upon courts; and that by virtue of the act a person may be deprived of his liberty "without due process of law."

On the other hand, it is contended by the plaintiff in error, that these questions are not now open for discussion, as they have all been settled by the Supreme Court of the U. States; and as that court is the only one which can, which has the power to settle finally the question of the 'constitutionality of an act of congress, all other courts are bound to acquiesce in their decision. It is not, of course', claimed by the plaintiff in error, that the act of congress in question has been before that court for consideration, but it is contended, that an act passed by congress Feb. 12th, 1793, (1st U. S. Stat. at large, 302,) contains provisions not distinguishable in principle from those of the act of Sept. 18th, 1850, and that that court has decided this act to be valid and Obligatory. We do not understand that the two acts are in all respects alike in principle, or even similar. The act of 1793 provides for the surrender of fugitives from justice, and also fugitives from labor, and so far as it relates to the latter description of persons: it is similar to the act of 1850. But the two acts differ essentially in the manner in which the surrender is to be effected. By the former, the person to whom the service or labor was due, was authorized to seize or arrest the fugitive, and to take him before any judge of the circuit or district court of the United States, residing or being within the State or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest was made, and upon pro of to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken and certified by a magistrate of any such State or Territory, at the person so seized owed service or labor under the laws Of the State to the claimant, it became the duty of the judge or magistrate to give a certificate thereof to the claimant his agent or attorney, which was sufficient warrant for the removal of the fugitive to the State or Territory from which he escaped. It will be observed that the alleged fugitive was to be taken before some judge of the circuit or district court of the United States, or before some State magistrate, who decided upon the question of the surrender of the fugitive to the claimant, upon proof to be submitted to him. He had the power to weigh the testimony and to decide upon its sufficiency. The act of Sept; 18th, 1850, differs from that of 1793 in two essential particulars. By the former, certain officers, called commissioners, are authorized to make the surrender and give the certificate and the testimony to show the fact that the alleged fugitive owes service or labor, and that he has escaped, is not to be weighed by the commissioner, but has an effect given to it by the act independent entirely of the opinion of the commissioner in regard to its sufficiency. The 10th section of the act provides, that when any person held to service or labor in any State or Terittory, or in the District of Columbia, shall escape therefrom, the party to whom such labor or service shall be due, or his agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape aforesaid, and that the person escaping owed service or labor to such party. Whereupon the court shall cause a record to be made of the matter so proved, and also a general description of the person so escaping, with such convenient certainty as may be; and a transcript of such record authenticated by the attestation of the clerk and of the seal of said court, being produced in any other State, territory or district, in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other officer authorized by the law of the U. States, to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned.

It can hardly be claimed, we think, that any adjudication upon the act of 1793 could decide all the questions involved in the act of 1850. But We will examine the cases referred to by the counsel for the plaintiff in error: upon this point. The act of 1793 received a very elaborate examination in the case of Prigg vs. Commonwealth of Pennsylvania, (16th Peter, R. ). The question, however, involved in the record before the court, was simply whether Prigg, the plaintiff, had the right to seize, without process, in the State of Pennsylvania, Margaret Morgan, a fugitive slave, and remand her to the State of Maryland, from which she had escaped, contrary to the statute of the former State. The decision of the court was, that he had the power, and the court reversed thee judgment of the supreme court of Pennsylvania, which had affirmed the. judgment of the court in which Prigg was convicted.— The principal question discussed by the justices of the. court who gave opinions, was, the power of congress of legislate upon the subject of the reclamation of fugitives from labor, and they were all of opinion that congress had the power; a majority holding that the power was exclusive, and that the State could not pass laws even in aid of the legislation of congress. In the course of this discussion, nothing was said in relation to the powers of. commissioners, for those officers did not exist at the time when the act Of congress was passed, nor of the right of