To this array of reason and authority there are but two attempts at
reply, so far as the Committee is informed.
(1.) The first asserts that the rendition of the slave under the
Act of Congress is a “preliminary” proceeding, in the nature of
_extradition_, which does not establish any right between the parties,
but simply hands the slave over to the local jurisdiction from which
he escaped, and therefore trial by jury is unnecessary. But this
pretension is founded on a plain misapprehension. It forgets, in the
first place, that by ancient authority a “claim” for a fugitive slave
is unquestionably a “suit at Common Law,” to be determined by a jury
_before the judgment of rendition_. And it forgets, in the second
place, that the proceedings are in no respect “preliminary”; that they
do not contemplate any other trial between the parties, but that they
fix absolutely the relations of the parties, making one of them master
and the other slave; that the certificate of rendition is absolute
and unimpeachable by any human tribunal, so that the claimant, from
the moment of its issue, may assert unqualified ownership over the
fugitive; that, under this certificate, he may proceed at once to
demand service and labor, and enforce his demand by the lash; and that,
instead of returning the victim to that local jurisdiction from which
he is alleged to have escaped, the claimant may hurry him, chained
and manacled, to some distant plantation, where the only judge will
be an overseer, and the only jury the creatures who aid in enforcing
a terrible power. And the argument forgets, also, that this cruel
judgment may be inflicted upon a freeman, who, perhaps, has never left
his Northern home, but whose fate will be fixed beyond appeal by the
mere certificate of a commissioner. Surely this simple statement is
enough.
The very word “preliminary” suggests the inquiry, To what?
_Preliminary_ is not an adjective that supports itself. It requires
an adjunct, or an abutment on which to rest. It is the beginning or
introduction to some further proceeding. It is something incomplete
or unfinished. If it be judicial, it contemplates necessarily some
further judicial proceeding. The judge who pronounces a preliminary
judgment must necessarily have in mind the judgment to follow, and must
recognize his relation to it. But if there is no judgment to follow, if
there is no contemplation of any further judicial proceeding, if the
actual proceeding is complete and finished, if it is not the beginning
or introduction to any further proceeding, if there is nothing on
which the adjective “preliminary” can rest, it is absurd to call the
proceeding by this name. Such proceeding is essentially final, and this
is the unquestionable character of that under the Fugitive Slave Act.
To call it “preliminary,” and on this ground set up apology for denial
of trial by jury, is only another illustration of devices employed by
Slavery to baffle the demands of Freedom.
But it is still said that there may be another trial in the State
whither the slave is conveyed. On this assumption it has been well
remarked, that, if, contrary to general principles of law attaching to
the decision of a competent tribunal a conclusive force as to the same
right between the same parties, there could be any trial in the Slave
State, then it is _another trial_, and in no respect a continuation
and completion of the proceedings before the commissioner. The only
trial possible would be an original suit by the alleged slave against
his _actual_ master, whosoever he might be; for the claimant may have
already sold him to another. But there can be no legal connection
between the two proceedings. Each is original, and must be decided on
its own merits. In the one case, the _actual_ claimant, whosoever he
may be, is plaintiff, and the slave is defendant; and in the other case
the slave is plaintiff, and the _actual_ master, whosoever he may be,
is defendant. And the first proceeding is preliminary to the other only
as an illegal imprisonment is preliminary to a suit for damages. The
whole pretension is lost in its absurdity.
(2.) The second attempt at reply to the argument for trial by jury may
be given in the words of the author of the Fugitive Slave Act himself.
In the debate which occurred on its passage, Mr. Mason thus expressed
himself:--
“If you pass a law which shall require a trial by jury, not
one man in twenty whose slave escapes will incur the risks
or expense of going after the fugitive. It proposes a trial
according to all the forms of the court. _A trial by jury
necessarily carries with it a trial of the whole right_, and
a trial of the right to service will be gone into according
to all the forms of the court in determining upon any other
fact.… This involves the detention of the fugitive in the mean
time,--a detention that is purely informal; and whether the
jury should or should not render a righteous verdict in the
end is a matter I will not inquire into, for it is perfectly
immaterial, _as the delay itself would effectually defeat the
right of reclamation_.”[367]
Thus, in a question of Human Freedom, the delay incident to trial by
jury was unblushingly asserted as a sufficient reason for denial of
the right. On a pretension so repulsive, it is enough to say that its
feebleness is exceeded only by its audacity.
The Committee, therefore, put aside the attempts at reply, and
confidently rest in the conclusion that the denial of trial by jury
to a person claimed as slave is an unquestionable violation of the
Constitution.
UNCONSTITUTIONAL DELEGATION OF JUDICIAL POWER TO COMMISSIONERS WHO ARE
NOT JUDGES.
There is still another objection from unconstitutionality, which may
be treated more briefly; but it is not less decisive than the two
objections already considered. It is founded on the character of the
magistrate to whom is committed the adjudication of the great question
of Human Freedom, than which none greater is known to the law.
If it were a question merely of property above twenty dollars,--if it
were a question of crime, involving imprisonment under the laws of the
United States,--especially if it were a question involving life,--the
trial must be before a judge duly appointed by the President by and
with the advice and consent of the Senate, holding office during good
behavior, receiving for his services a fixed compensation, and bound
by solemn oath of office. But this great question of Human Freedom
is committed to the unaided judgment of a petty magistrate, called
a commissioner, appointed by the Court instead of the President,
holding his office during the will of the Court instead of during good
behavior, paid by fees according to each individual case, instead of
receiving for his services a fixed compensation, and not bound by any
oath of office.
A claim for the rendition of a fugitive from service or labor,
constituting as it does “a suit at Common Law,” and also “a case
arising under the Constitution,” must be determined by a _judicial
tribunal_. But a commissioner is not a judicial tribunal, nor is he in
any sense a judge; so that he is not entitled, under the Constitution,
to exercise this extraordinary jurisdiction.
As “a suit at Common Law,” the claim must be tried by the tribunal
which has jurisdiction of such suits. But a commissioner can have no
such jurisdiction.
As “a case arising under the Constitution,” it falls under the judicial
power of the United States. But a commissioner is no part of this power.
Two provisions of the Constitution place this conclusion beyond
question. _First_, by article three, section one, it is declared 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 establish. 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 compensation
which shall not be diminished during their continuance in office.”
_Secondly_, by article three, section two, it is declared that “_the
judicial power shall extend to all cases in law and equity arising
under this Constitution, the laws of the United States_, and treaties
made, or which shall be made, under their authority.” Here it appears,
first, who are the judges constituting the judicial power of the
United States, and, secondly, what is the extent of this power. But a
commissioner clearly is not a judge, or any part of the judicial power.
Therefore, by inevitable conclusion, he cannot have jurisdiction of
any “case arising under the Constitution.” But the Supreme Court has
expressly decided that the proceeding by a claimant for the delivery
of an alleged slave “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.”[368]
And yet a commissioner, dressed in the smallest and briefest authority,
is put forward to determine this great case under the Constitution,
and his judgment is declared final, and even without appeal. The
Fugitive Slave Act proclaims expressly that he “shall have _concurrent
jurisdiction_ with the judges of the Circuit and District Courts of
the United States”; that he shall “hear and determine the case of
the claimant in a summary manner”; and that his certificate “shall
be conclusive of the right of the person or persons in whose favor
granted to remove such fugitive to the State or Territory from which he
escaped, _and shall prevent all molestation of such person or persons
by any process issued by any court, judge, magistrate, or other person
whomsoever_.”[369] Such are the plenary powers conferred upon the
commissioner, together with an eminent jurisdiction concurrent with
judges of the Circuit and District Courts. This Act, as originally
introduced by Mr. Butler, before the substitute of Mr. Mason, intrusted
this _concurrent jurisdiction_ to the whole army of postmasters; but a
trumpery commissioner, appointed by a court, is as little entitled to
exercise it as a postmaster. It is not doubted, that, under existing
statutes, a commissioner may be appointed to take depositions and
acknowledgments of bail, and also to arrest, examine, and detain
offenders for trial. Thus much a court may authorize; _but a court
cannot delegate to a commissioner the power of trying a cause_, whether
“a suit at Common Law,” or “a case arising under the Constitution”;
_nor can Congress authorize a court to delegate this power_. The whole
pretension is a discredit to the jurisprudence of the country.
Such are three principal objections to the constitutionality of this
Act. One alone is enough. The three together are more than enough.