depends partly upon the number of cases he decides, and partly also
upon the party in whose favor he decides. If he decides that a man
is free, he receives five dollars. If he decides that he is a slave,
he receives ten. If the commissioner is acceptable to slave hunters,
suitors multiply. If obnoxious to them, his docket is bare of a case.
He is entitled to his compensation, not “at stated times,” but on the
determination of each case. His compensation may be diminished, or it
may cease altogether, during his continuance in office. Each year does
not give him any definite, unchanged sum of money.
The “judge” must be paid by the government, and is independent of all
the parties before his court. The commissioner is never to be paid by
the government, but is wholly dependent for his fees upon the claimant
whose case he tries. The government guaranties the payment of the
“judge,” but it can never inquire or know whether the commissioner be
paid or not.
By the sixth article of the constitution, all “judicial officers” must
make oath or affirmation that they will support the constitution. But
there is no law requiring these commissioners to take an oath; and as a
matter of practice, in some parts of the country at least, it is known
that they take no such oath.
Now, by the act, a portion of the “judicial power” of the United
States, the _whole_ of which is, by the constitution, vested in
one “supreme court,” and in “inferior courts,” is given to the
commissioners. The fourth section says they “shall have concurrent
_jurisdiction_ with the judges of the circuit and district courts of
the United States.” If the power of these courts, in the premises,
is judicial, then the power of the commissioners, being the same, is
judicial.
The attorney-general of the United States, in a written opinion, given
by command of the President, declares that this power, so given to the
commissioners, is judicial. The following are his words:--
“These officers, [the commissioners,] and each of them, have judicial
power, and jurisdiction to hear, examine, and decide the case.”
“The certificate to be granted to the owner is to be regarded as the
act and judgment of a judicial tribunal having competent jurisdiction.”
“Congress has constituted a tribunal with exclusive jurisdiction
to determine summarily, and without appeal, who are fugitives
from service. The judgment of the tribunal created by this act is
conclusive upon all tribunals.”
Such is the opinion of the attorney-general of the United States,
given upon the precise point, by order of the President of the United
States.
But the point needed no authority to sustain it. It results inevitably
from the very nature of the power conferred by the law. The decision
of the commissioner is to be _final_ and _conclusive_, and the
subject-matter of the decision is liberty and property. The case
cannot be reheard or reëxamined by any judge, or by any court, of any
state, or of the United States. The decision acts _in rem_ and _in
personam_. It delivers the property to the claimant, and puts the body
of the defendant into his custody. From that moment, if the law has
any validity, the defendant is the slave of the plaintiff, by force
of a “judicial” decision. The plaintiff, thenceforth, may control his
actions, his words, his food, his sleep. If he chooses to exercise his
authority in such a way, he can order his victim to carry him home on
his back, and make him bear the loathsome burden of his person as well
as of his will. Now, to say that the power which effects these results
is not a judicial power, is to do violence to language, and to commit a
fraud upon the inherent nature of ideas. In no case known to the common
law, or indeed to any other law, is a plaintiff invested with _full_
rights, except after _final_ judgment.
If, then, this power is a “judicial power,” the constitution
peremptorily forbids that it should be vested any where but in a
“court,” whose “judges” are nominated, confirmed, sworn, hold office,
are paid, and are removable, according to its requirements. Look at
the constitutional distribution of powers. By the first article, all
legislative power “shall be vested in a Congress.” By the second
article, the “executive power shall be vested in a President.” And by
the third article, “the judicial power shall be vested” in the courts.
And it was just as competent for Congress to invest “commissioners”
with supreme “executive” or “legislative” power, as to vest them with
“judicial” power.
If, by good fortune, or by miraculous interposition, a captured freeman
should afterwards obtain a hearing in a court of the state to which he
had been carried, such hearing would, in no sense, be in the nature of
a review of the former case, either by appeal, writ of error, mandamus,
or certiorari. It would be by the institution of _another_ suit, under
_another_ government. The relation of the parties would be reversed.
The respondent who was kidnapped must be plaintiff, the plaintiff
kidnapper, or some one claiming under him, must be defendant. Were the
various _possessory_ writs known to the English common law any the less
“suits at common law”? or were the courts that tried them any the less
_judicial_ tribunals, because a _writ of right_ could be afterwards
brought, in which the previous judgments could not be pleaded in bar,
and would be neither estoppel nor proof of title?
But to avoid the force of this, it has been said, that the proceedings
before the commissioner do not constitute a “case,” within the meaning
of the second section of the third article, which extends the “judicial
power” of the United States to all “cases” in law and equity. Instead
of being a “case,” it is said to be only a summary inquiry, designed
to operate as a condition for executive action, in order to accomplish
a special and limited object; like the inquiry, who are rightful
claimants of money held by the government, under a treaty, and how
much belongs to each one. It is also said, that if a construction so
literal is to be put upon the words “judicial power,” then no master
in chancery could act in behalf of the courts in equity cases; no
commissioner of bankruptcy could be appointed under a bankrupt law, &c.
In answer to the first position, that the proceedings for the
reclamation of fugitive slaves do not constitute “a case,” we have the
most explicit declaration of the supreme court in more _cases_ than
one. In Prigg’s case, 16 Peters, 616, the court say,--
“It is plain, then, that while a claim is made by the owner, out of
possession, for the delivery of a slave, it must be made, if at all,
against some other person; and inasmuch as the right is a right of
property capable of being recognized, and asserted by proceedings
before a court of justice, between parties adverse to each other,
it constitutes, in the strictest sense, a controversy between the
parties, and a CASE, arising under the constitution of the United
States, within the express delegation of JUDICIAL POWER given by that
instrument.”
“A CASE in law or equity consists of the right of the one party
as well as of the other, and may truly be said to arise under the
constitution, or a law of the United States, _whenever its correct
decision depends_ ON THE CONSTRUCTION OF EITHER.”--_Cohens_ vs.
_Virginia_, 6 Wheat. 379, (5 Cond. Rep. 101.)
Indeed, almost every page of the opinion of the court, in _Cohens_ vs.
_Virginia_, may be referred to, to show that they used the word “case”
in a sense that embraces the proceedings for the reclamation of a
fugitive slave. If so, then any tribunal, having jurisdiction over such
a “case,” is vested with a part of the “judicial” power of the United
States.
In defining the word “case,” as it occurs in this article, Judge Story
says,--
“It is clear that the judicial department is authorized to exercise
jurisdiction to the full extent of the constitution, laws, and
treaties of the United States, _whenever any question respecting
them shall assume such a form that the judicial power is capable of
acting upon it_. When it has assumed such a form, it then becomes a
_case_”--3 _Comm._ 507.
“A case, then, in the sense of this clause of the constitution,
arises, when some subject touching the constitution, laws, or treaties
of the United States, is submitted to the courts by a party who
asserts his rights in the form prescribed by law.”--_Ibid._
And, as if these definitions were not clear enough, the learned judge
adds,--
“Cases arising under the _laws_ of the United States are such as
grow out of the _legislation_ of Congress, within the scope of their
constitutional authority, _whether they constitute the right, or
privilege, or claim, or protection, or defence of the party, in whole
or in part, by whom they are asserted_.”--3 _Comm._ 508.
It seems clear, then, that the proceedings authorized by the Fugitive
Slave law cannot be taken out of the meaning of the word “cases,”
(cases in law and equity,) in the third article.
There is another clause in the third article, which embraces these
proceedings with equal clearness and certainty. “The judicial power
shall extend to controversies” “between a state and citizens of another
state.” I suppose it will not be denied that a slave state may itself
own slaves. They may escheat to it, be taken in execution for debt, &c.
Now, a free citizen of Massachusetts may enter the port of Charleston
as a mariner, be seized, imprisoned, and then sold into slavery for
non-payment of jail fees. The State of South Carolina may purchase him.
He may escape and return to Massachusetts. South Carolina may then
claim him under this Fugitive Slave law.
In such a condition of things, a “controversy” will exist between
“a state and a citizen of another state.” The commissioner can take
jurisdiction of that case as well as of any other. And who will be
bold enough to say that a trial and judgment by him, delivering up the
respondent to bondage, would not be the exercise of “judicial power” in
a controversy between “a state and a citizen of another state”?
The argument, that if the commissioner under the Fugitive Slave law
exercises “judicial power,” then masters in chancery, commissioners of
bankruptcy, &c., exercise it, is answered by a word.
Masters in chancery assist the court in preparing questions for
decision, but they decide nothing. Every act of theirs may be reheard
and reëxamined by the court at the pleasure of either party. They enter
up no judgment; they issue no execution. They may express the opinion
that the plaintiff or defendant is entitled to recover a certain sum
of money, or to hold the chattel in dispute; but neither of them can
touch it. They are “_judges_” in no legitimate sense. They exercise no
part of the “judicial power.” The court may call upon them to state
an account between parties, as it calls upon a clerk to make up the
record, or a servitor to bring a law book, or asks a friend to cast up
the interest on a promissory note. Such are the functions of a master
in chancery, whose acts have no legal validity until assented to by the
parties or sanctioned by the court.
So with regard to commissioners of bankruptcy. Every act they were ever
authorized to perform derived all its legal force from the consent of
the parties, or from the verdict of a jury, before whom it had been
contested, or from the judgment of the court,--as may be seen at a
glance, by reference to the acts creating them.
As to the supposed “judicial power” exercised by commissioners, under
a treaty to determine who are rightful claimants, and to how much each
one is entitled, it is almost too obvious to remark, that as no citizen
can bring “suit” against the government, the “judicial power” does not
“extend” to such a case, and the suggestion is puerile.
A word more will close my remarks on this topic. We have seen that a
decision of the commissioner adverse to the respondent delivers him
over into absolute, unconditional slavery. But the prevalent opinion
is, that a decision in the respondent’s favor is no bar to a subsequent
trial of the same person on a new “claim.” It was actually held in
Long’s case, in New York, where the claimant apprehended that the
decision of the first commissioner would be against him, that he might
abandon proceedings before that tribunal and resort to another. He did
so, and prevailed. That is, the claimant may select, from among an
indefinite number of irresponsible magistrates, the one whose ignorance
or whose turpitude may promise the best chances of success. But if,
from any cause, he should apprehend defeat, then, and before the final
judgment is pronounced, he can withdraw his suit and commence anew
before another magistrate, and so throw the dice of the law again and
again, until, by the very doctrine of chances, he shall ultimately
succeed. Such want of equity between the parties stamps this law as
infamous,--for inequity is iniquity.
An argument in favor of the surrender of alleged fugitives from service
under this law has been derived from the provision for the surrender
of fugitives from justice. But the difference between the cases is
world-wide. In regard to slaves, the constitution says,--“No person
HELD to service,” &c.; but in regard to criminals, its language is, “A
person CHARGED,” &c.
Now, who can avoid perceiving the difference between the legal force
of the words “held” and “charged”? The obligor in a bond is “HELD and
firmly bound.” The grantor conveys an estate “to have and to HOLD”
to the grantee and his heirs and assigns forever. So a lessee is to
“HOLD” for the term specified. A man is HELD to answer a charge, &c.,
&c. In all these cases the word “_hold_” implies a perfect obligation
or certain liability. But a man is “CHARGED” with an offence when a
grand jury has found an indictment against him, or when a competent
person has made the requisite oath. It is not enough that a man be
_charged_ to be _held_ to service. He must be _proved_ to be _held_, or
he remains free; the court must know that he is so _held_ before they
are authorized to surrender him. And how, under our constitution, can
the court know such facts as convert a presumptive freeman into a slave
without a trial by jury?
Had the constitution said a fugitive _guilty_ of murder, &c., shall
be delivered up, could a man be delivered up until _proved_ guilty of
murder? Yet the word _guilty_ is no stronger in reference to a fugitive
from justice than is the word _held_ in reference to a fugitive from
service.
Another distinction between the cases is not less marked than the
preceding. When the fugitive from justice is _claimed_, he is claimed
by a _state_ for having violated its law, and when he is delivered up
he is delivered into the custody of the law. Legal process must have
been commenced against him in the state from which he fled. He is
returned, that the prosecution thus commenced may be completed. He is
delivered from an officer of the law in one state to the officer of the
law in another state. He is transferred, not to avoid a trial, but to
have one. The original indictment or _charge_, the arrest in a foreign
state, and the delivery and transportation to the place of trial, are
but separate parts of one legal proceeding. The shield of the law is
continued over him. All the time and all the way, he has the solemn
pledge of the government, that if not found guilty on the prosecution
_then pending_, he shall be discharged.
But the alleged slave is claimed not by a state, but by an individual,
and he is delivered up, not into the custody of the law, where his
right might be adjudicated upon, but into private hands; not into the
hands of a neutral or indifferent person even, but into the hands of
a party interested to deprive him of all his rights, and who himself
claims to be judge, jury, and all the witnesses, in determining what
those rights are. If he be not a slave, then he is delivered into the
hands of a man-stealer. The shield of the law is not continued over
him; nay, the Fugitive Slave act expressly provides that, whatever his
rights may be, yet, while _in transitu_, the law shall not recognize
them. The certificate given by the commissioner to the claimant is to
prevent “all molestation of him by any process issued by the court,
judge, magistrate, or other person whomsoever.” Under this practical
interpretation of our constitution, which, as its own preamble
declares, was formed to “establish justice, and secure the blessings of
liberty,” it takes better care of felons than of freemen.
But there are other provisions of the constitution respecting the
trial of _criminals_, which would control this provision respecting
the delivery of fugitives from justice, even if there should be any
doubts about its true construction. By the constitution as originally
adopted, and by the fifth amendment, all crimes, (except in cases of
impeachment, or in the land and naval forces,) are to be tried in the
state and district where committed. This makes it impossible to try
a fugitive from justice in the state to which he has fled. It is an
express prohibition against trying him there. But no such prohibition
exists, no analogous provision exists, respecting the trial of “suits
at common law,” or the trial of “cases” or “controversies,” in which
a man may be deprived of “life, liberty, or property.” These cases,
therefore, not being taken out of the general provisions of the
constitution for securing the rights of the citizen, are left within
it, and hence must be tried by a jury in the place where the claim is
made.
My next objection to this law is, that it attempts to suspend the writ
of _habeas corpus_.
The constitution says, “The privilege of the writ of _habeas corpus_
shall not be suspended, unless when, in cases of rebellion or invasion,
the public safety may require it.” The Fugitive Slave law declares
that the “certificate” given to the claimant, his agent or attorney,
“shall prevent all molestation of said person or persons by any process
issued by any court, judge, magistrate, or other person whomsoever.”
Now, as a writ of _habeas corpus_ is a “process issued by a court or
judge,” it follows, that, according to the terms of the Fugitive Slave
law, the slave owner is not to be “_molested_” by that process. What,
then, will constitute a “molestation” of him under this law? Would the
service of a writ of _habeas corpus_ upon him, and, in case of his
refusal voluntarily to obey it, the seizure of his person, and the
carrying of him bodily before the court, perhaps a hundred miles out
of his way;--would the moral necessity of employing counsel, and being
otherwise subjected to great expense, both of money and time;--would
any or all of these impediments and privations amount to what this
law denominates “molestation”? If they would, then the slave owner is
exempted from them. And if so exempted from them, is not the privilege
of the writ of _habeas corpus_ “suspended,” as to his pretended slave?
What else can a “suspension” of it mean?
But take the other alternative. Suppose the writ of _habeas corpus_ to
be issued, and a return of all the facts by which the supposed slave
is held to be made. The very return brings the Fugitive Slave act
before the court; and if the act is before the court, then, surely, the
question is also before the court, whether it is constitutional or not.
For, if unconstitutional, it is no law, and no justification of the
restraint. Suppose the court to decide the act to be unconstitutional,
and to discharge the prisoner. This surely would be a “molestation” of
him, in the strongest sense of the word. To say the least of it, then,
the law contains an insolent and audacious provision, forbidding the
“courts, judges, magistrates, and all other persons whomsoever,” to
do what it may be their sworn constitutional duty to do,--that is,
to inquire into the constitutionality of the law, and, if found to be
unconstitutional, to disregard it.
I am aware of the astute reasoning of the present able attorney-general
of the United States. He says, first, that the act does not suspend the
writ of _habeas corpus_, because such suspension would be “a plain and
palpable violation of the constitution, and no intention to commit such
a violation of the constitution ought to be imputed” to Congress; and
second, that if the certificate of the commissioner is shown “upon the
application of the fugitive for a writ of _habeas corpus_, it prevents
the issuing of the writ; if upon the return, it discharges the writ,
and restores or maintains the custody.”
The first reason might be more briefly stated thus: it don’t because it
don’t; or it don’t because it can’t.
The second is as little satisfactory as the first. If the facts
are shown, it says, upon the fugitive’s application for a writ, no
writ will issue; if shown upon the return of the writ, it will be
abated. Is it not most clear that this assumes the very question
in dispute, whether the law on which the certificate is founded be
constitutional or not? The statement may be all very true, if the law
be constitutional; but suppose the law to be unconstitutional, would
not the statement be superlatively absurd? Yet whether the law be
constitutional or not, is the very question to be determined.
Let me test the soundness of this logic by a supposed case. There
is, at the present time, a set of politicians amongst us, who are so
alarmed at agitation that each one of them is a kind of Peter the
Hermit, getting up a crusade to prevent it. Now, suppose Congress,
“_as a peace measure_,” should pass a law authorizing the secretary of
state to issue his warrant for the arrest and imprisonment, until the
4th day of March, 1853, or at least until after the next presidential
nominations are made, of any person who shall be guilty of agitating
_on the wrong side of said peace measure_, and should further declare
that any jailer having such warrant from said secretary should be free
from “all molestation by any process issued by any court, magistrate,
or other person whomsoever.” Would it be a sound, judicial, and
lawyer-like argument, in such a case, to say that Congress could not,
and could not have intended to, violate the constitution, and therefore
they had not violated it; and that if the warrant for commitment should
appear upon the prisoner’s application for a writ of _habeas corpus_,
it would prevent its issuing; if, upon its return, it would discharge
it?
I think it impossible for any one to show that if the argument be
good in the first case, it would not be good in the second; and good,
indeed, in any case, however outrageously violating the constitution.
Again: suppose the 18th of September last, when the Fugitive Slave
bill was approved, to have been a time “of rebellion or invasion,”
when the public safety required the suspension of this writ, would
not such words as end the sixth section of the act be sufficient in
law to suspend it? The attorney-general seems to rely upon the fact
that the Fugitive Slave law does not mention the _habeas corpus_. He
cannot surely mean to say that the privilege of this writ could not
be suspended, unless by name. Even slavery is not mentioned in the
constitution _by name_. Suppose Congress, in a time of rebellion or
invasion, to say, in regard to any class of cases which it might choose
to specify, that if one person shall hold another under executive
warrant, such warrant “shall prevent all molestation of said person or
persons by any process issued by any court, judge, magistrate, or other
person whomsoever;” could any man deny that such words would have ample
force to suspend the privilege of this sacred and time-hallowed writ?
No! Heaven, and not the thirty-first Congress, be praised for it!
Though this infamous Fugitive law _could not_ suspend the _habeas
corpus_, yet its words are adequate to do so. They purport to put the
professional slave-hunter, as it regards the privilege from arrest, or
“molestation,” on the footing of a member of Congress; and it would not
have gone one iota further, in point of principle, had they made his
person inviolable while going to seize his prey, and when returning
with it.
If the argument of the attorney-general be sound, then the whole
“privilege of the writ of _habeas corpus_,” under any corrupt law
that any corrupt Congress may pass, will consist in the privilege of
applying to a court for the writ, and being refused; or in suing out
the writ, and having it quashed.