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criminal from the agent who shall have received him or her in his custody, while transporting him or her to the State or Territory from which he or she shall have fled, is declared in the second section of the Act. If the right of holding in custody the person charged is a legal right under the Constitution or under the statute, it would seem to be within the power of Congress to guard it by any fine, not "excessive," or any punishment, not "cruel and unusual.”1

1 Article 8 of the amendments:-Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

CHAPTER XXIX.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE LEGISLATION OF CONGRESS IN RESPECT TO FUGITIVES FROM LABOR. WHETHER THE PUBLIC OFFICERS NAMED IN THE TWO SEVERAL ACTS OF CONGRESS MAY CONSTITUTIONALLY DELIVER UP A FUGITIVE FROM LABOR ON CLAIM, AS THEREIN PROVIDED.

864. In considering the means provided by Congress for carrying into effect the provision for the delivery of fugitives from labor with reference to the three points of inquiry stated in the previous chapter,' the first question is

1. Whether the Act of 1793, in conferring certain powers on the State magistrates mentioned in the third section, and the Act of 1850, in conferring the same powers on the Commissioners named in the first section, are in violation of those provisions of the Constitution which determine the investiture of the judicial power of the United States.

No part of the Act of 1793 is directly repealed by that of 1850, whose title reads, "An Act to amend, and supplementary to, an Act entitled," &c., and it is not stated specifically in what parts the older Act is amended. The Act of 1850 differs from the older statute in respect to the tribunals or official persons who may carry out the law. It gives to the commissioners appointed by the United States circuit courts, or by the superior court of each organized Territory of the United States, like powers with the judges of the circuit and district courts of the United States, in granting certificates, and makes no mention of any officers appointed by the States. But, the law of 1793 being unrepealed, it would seem that the magistrates of

1 Ante, p. 607.

counties, cities, and towns corporate, mentioned in the third section, may still act as in that law is provided, if they could have so acted before 1850.

In determining the constitutionality of the Act of 1793, under the question above stated,' several cases are to be considered.

§ 865. In Commonwealth v. Holloway (1816), 2 S. and R. 305, the keeper of the city prison returned to the habeas corpus, that the child, Eliza, was held "by virtue of a warrant of commitment issued by Samuel Badger, Esq., an associate judge of the Court of Common Pleas." The child was discharged on another ground. (Ante, p. 412.) But, on the hearing, it appeared that the mother of the child had been apprehended in Philadelphia, "as the slave of James Corse, and delivered to him, as such, by a magistrate, after an examination of her case." There is nothing to indicate who this magistrate was. But it seems probable that the mother and child, together, had been committed by the judge of the Common Pleas. There is no mention of any dispute as to the validity of the proceeding in the case of the mother.

In Hill v. Low (1822), 4 Wash. C. C. 327 (ante, p. 439), the defendant had obstructed the plaintiff when, as claimant, he had seized or arrested the fugitive slave with the purpose, as was alleged, of taking him "before a magistrate of the said city" of Philadelphia "in order to prove before him," &c. But it does not appear that an application was actually made to any magistrate or judge, and no certificate had been granted, and there is nothing in the Opinion delivered by the judge of the United States Circuit Court which bears on the question under consideration."

In Worthington v. Preston (1824), 4 Wash. C. C. 461, the

See the objection stated by counsel in Prigg's case, 16 Peters, 582.

2 Butler v. Hopper (1806), I Wash. 396, ante, p. 409, was not a case within the provision. In Glen v. Hodges (1812), 9 Johns. 67, ante, p. 438, the plaintiff had seized the slave without any warrant, and, it seems, was about to remove him from the State without applying to any officer of the State or of the United States, when his custody was interrupted by the act of the defendant. There is nothing in the circumstances or in the language of the court throwing any light on the question here considered.

3

In Ex parte Simmons (1823), 4 Wash. C. C. 396, ante, p. 409, the application for a certificate was made to the judge of the United States Court.

action was against the goaler for the escape of a fugitive held under a certificate for removal, granted by some magistrate who is described in the report as a "State judge." There was no question of the validity of a custody under the certificate. The goaler was held not responsible, on other grounds.

§866. In Wright v. Deacon (1819), 3 S. and R. 62 (ante, p. 438), the detention of the slave under a certificate, granted according to the Act of Congress, by Judge Armstrong, of the Common Pleas Court of Philadelphia, was supported by the Supreme Court of the State, on motion to quash the writ de homine replegiando issued to take the slave from such custody. No question appears to have been made of the source of the authority exercised by the State magistrate.'

§ 867. In Jack v. Martin (1834),' 12 Wendell, 311, the case was commenced by the issue of a writ of habeas corpus by the Recorder of the city of New York, as provided by the State law of 1828; and the Recorder had, on hearing the return, given a certificate as provided by that law. A writ of replevin, as allowed by the same statute, was then issued from the Superior Court of the city of New York, and the defendant, Martin, put in avowries, relying on the certificate given by the Recorder, and also on the allegation that the plaintiff, Jack, "was, and still is, her slave." To these avowries the plaintiff put in several pleas, to some of which the defendant

1 In Commonwealth v. Griffith (1823), 2 Pick. 11, ante, p. 440, the question was of the right of the claimant without a warrant to seize the alleged slave for the purpose, as must be supposed, of taking him before an officer authorized by the Act to give a certificate. An application had previously been made to a judge of the United States District Court, who had decided that a warrant to seize, for that purpose, was not necessary. It may be inferred that, if any application for the certificate was contemplated, it was to have been made to the same tribunal. The case, therefore, is no authority in the present inquiry.

The case, Fanny v. Montgomery (1828), 1 Breese, Ill. 188, was trespass. The plea was a justification under a justice's warrant, under the law of 1793. The plea was held bad for deficiency in certain allegations, but the court did not pass on the question of the force of the warrant. Judge Lockwood:-"I have not deemed it necessary, in making up an opinion in this cause, to give an opinion on the question how far a certificate which is good prima facie can be inquired into. Whether such a certificate would be final and conclusive, does not arise on this plea. We are not required, by the state of the pleadings, to go into any such inquiry; on this point, therefore, I forbear; for sufficient unto the day is the evil thereof." Unfortunately, such judicial reticence has been the exception, and not the rule, in questions of slavery.

In Johnson v. Tompkins (1833), 1 Bald. 571, ante, 441, the owner had attempted to remove the slave without applying to any public authority. 'Of the Rev. Statutes. See ante, p. 57.

demurred, and to the others pleaded issuably. In the Superior Court, judgment was given, on the demurrer, for the defendant, Martin, and on this judgment writ of error was taken to the Supreme Court. The Opinion of the court was given by Judge Nelson.

From this Opinion, it appears that in the argument before this court it was alleged that the proceedings before the Recorder were in conformity with the Act of Congress. Judge Nelson, while recognizing the fact that the Recorder had intentionally followed the State law in his proceedings, held that that law was void, and yet justified the custody in which the plaintiff was held, as legal under the Act of Congress.

The question, whether the Recorder, who had begun by issuing process (for which the Act of Congress makes no provision), as provided by the State law, with the purpose of acting under that law, could be taken to have performed an action provided for by a law of Congress, was probably raised as distinctly in the Supreme Court as it was in the Court for the Correction of Errors.'

Chancellor Walworth, in the court of last resort, main-tained the validity of the State law, and, consequently, must have regarded the Recorder as exercising powers derived from the State. The Chancellor maintained the power of Congress to legislate only so far as it might be employed in vesting the judicial power of the United States. But at the same time said, 14 Wend. 527 (ante, p. 451, n.): "The Act of February,

1 See the reporter's note, 12 Wend. 314. The plaintiff in error's 4th point, 14 Wend. 512: "An officer of the State of New York can only take such jurisdiction as our statute allows; and the defendant, by applying to a State magistrate for the remedy given by our law, has consented to be governed by the same throughout." Judge Nelson, 12 Wend. 315:-"The case under consideration is supposed to involve the constitutionality of this law of Congress [of 1793], and, in result, that of this State, which provides for the arrest of fugitive slaves in a manner in some respects different from the law of Congress. * This replevin suit is under the provision of the State law. The defendant, in the Superior Court, set up in defence, that the plaintiff was her slave, and acknowledged the taking, by virtue of proceedings alleged to be in conformity to the Act of Congress." It does not appear from the pleadings, as reported, that this was alleged in the Superior Court of the city of New York, where the replevin suit was brought. On page 316, Judge Nelson said:-"I assume, for the present, that the proceedings before the Recorder were substantially in conformity to the Act of Congress, and may be sustained thereby if it is valid." On p. 325:-"That the proceedings before the magistrate were in form under the law of the State which required the issuing of a writ of habeas corpus, I apprehend cannot materially affect this case."

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