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years after the passage of the first Personal Liberty | the party before the court to show cause why he

would not be compellable to produce the body if the writ were addressed directly to himself, but would nevertheless be bound to appear and show cause, he may not be compellable to appear when summoned by the court through the intervention of its officer, although that officer could have no power to take the body from him in order to bring it into

court.

Bill; when it was again altered, and required to be retains the prisoner, and to appear in the same manaddressed to the sheriff or his deputy only, in all ner as he would be compellable to do if the writ were cases where the restraint was not by a sheriff, deputy directly addressed to himself; the only distinction is sheriff, &c., of this State; thus calling upon him to that in one case the order is to him directly from the make the service, although the person restrained court, and in the other through the instrumentality might be in the custody of a marshal or deputy of the officer by whom all its other precepts are lawmarshal, or other officer of the U. S. This change, fully served. It is not seen why the obligation however, was not made with any reference to persons of an officer of the United States to apdetained as fugitive slaves, or to the Personal Lib-pear is not in either case the same; nor why if he erty Bill, but altogether for another purpose; though it destroys the argument of unconstitutionality raised upon the hypothesis that there is any law 'on the statute book of this State" authorizing any of its courts or magistrates to require the marshal to produce the alleged fugitive before them, and directing them to take him out of the marshal's custody, and dispose of him upon their own order. It may perhaps be objected that this alteration, in The proceeding is substantially and to all legal requiring the writ to be thus served by the sheriff, effects one of habeas corpus, in one case as much as instead of addressing it to the party claiming cus- in the other. And when the marshal is before the tody, destroys its essential character as one of court upon such a summons he is under the same habeas corpus, and converts it into a capias;- obligation to make the written statement required and so that unless the body be taken by the by the statute, or one substantially setting forth his sheriff from the custody of the party charged right to retain the custody, as he would be in rewith restraining him, and brought before the court, sponse to a writ addressed to him personally; and there is no subject before it, on which any action upon refusal to do so would be dealt with by the can be had; and that no power therefore exists, un-court as any other person refusing to make answer to less the body be taken, to summon the marshal before a writ of habeas corpus. The statute, in several the court to answer; and from which it must follow, that this writ, as now provided by our statutes, either requires the sheriff actually to take the body out of the hands of the marshal, and so is in direct conflict with the Constitution and laws of the United States; or else is a nullity in all cases of restraint by him, leaving the prisoner without remedy, be that restraint ever so unlawful.

provisions relating to the return of the sheriff and written statement of the party claiming custody, plainly relates to cases where the body may not be produced, and yet the person summoned be required to make answer-thus showing that the power to summon was not intended to be confined to cases where the body was actually taken by the sheriff. These fundamental principles of construction esIt is believed that no such difficulty exists, and tablished by the highest legal authority are binding that no such consequence follows. The only pur-upon every court and magistrate in Massachusetts, pose of the writ of habeas corpus is to bring before and no one can reasonably doubt that they will the court the body of any person represented to be be readily and faithfully obeyed; and thus far, and restrained of his liberty, in order to ascertain wheth- until we reach the 19th section of this chapter, it is er such restraint be lawful. It can make no differ- not perceived that any constitutional objection can ence in ordinary cases whether the writ for this pur- exist to its provisions; there being no one which in pose be directed to the party having the custody, express terms, or by any necessary implication, acor to the sheriff, directing him to take and produce cording to the received principles of judicial conthe body of the prisoner and summon the party claim-struction, tends to bring the court or officers of ing custody to show cause; excepting that it provides the State into conflict with those of the United security against his absconding with his prisoner. States. Where such party is not claiming custody under process of law, he and the prisoner, when taken and brought in by the sheriff, are both before the court for the same purposes, and to be dealt with in the same manner as if the writ had been directed to the claimant personally; and there seems no satisfactory reason for calling this a conversion of the writ into one of another character, from any difference affecting any legal results.

Nor is it perceived that, if the sheriff cannot take the body, either because the party claims custody as an officer of the United States under legal process of a court of the United States, or for any other reason, therefore he cannot go further, and summon

It remains then under this head to consider the 19th, 20th and 21st sections, to which the objection of unconstitutionality is understood directly to apply.

The 19th provides that when it appears by the return of the officer, or otherwise, that the person whose restraint or imprisonment is in question is claimed to be held to service or labor in another State, and to have escaped from such service or labor the Court or Justice shall, on application of the party, order a trial by jury, as to any facts stated in the return of the officer or alleged; and may admit said person to bail in a sum not exceeding $2000; that issue may be joined by a general de

nial of the facts alleged; the plea may be not guilty; | dependently of legal enactments, and the danger

and the jury shall have the right to return a general verdict, and the same discretion as juries have in the trial of criminal cases: and the finding of a verdict of not guilty shall be final and conclusive.

The 20th section provides for the manner of summoning the jury and for succeeding trials in the event of disagreement.

of their abusive exercise.

Let us then apply them to each of the three classes of cases above stated, in which the claimant may be attempting to enforce such alleged rights.

1st. And first, where he has arrested the alleged fugitive by his own hand, or that of his agent, with the intention of keeping him in custody, and transporting him out of the State, without aid of legal process.

The 21st prescribes the pleadings and manner of proof, excluding the testimony of the claimant and alleged fugitive; placing the burthen of proof of Under these sections of the statute he is compelled every fact in issue upon the claimant; and requiring to submit to a legal investigation and trial by court the evidence of at least two witnesses, or other legal and jury of his claim, as being the owner of the alevidence equivalent thereto, and by the rules of evi-leged fugitive by the laws of his State; of the idendence known and secured by the common law; tity of the person arrested as such alleged fugitive; that no ex parte deposition or affidavit shall be re- and of his escape or flight from that State; and ceived in behalf of the claimant; and that no pre- upon legal proof of these facts the fugitive is sursumption shall arise in his favor from proof that rendered to him. the alleged fugitive or his ancestor had been actually held as a slave, without proof that such holding was lawful.

The privilege of bail to the alleged fugitive until the hearing shall be had, being with ample security to the claimant in case of his absconding, is the Now it must be conceded, as is believed, that laying same remedy as is given in all cases involving conaside all legislative enactments, and looking only at testation of legal rights to service or labor, and in the Constitution of the United States and the rights personal replevin. The modes and degree of of slave-owners under it, there is nothing unconsti- proof, with the exceptions suggested, would be in tutional in these provisions, unless those relating to conformity with the rules of evidence at common the evidence may be considered constructively so. law, with such additional precautions only as are However unreasonable those which place the burthen deemed reasonable in the peculiar character of the of proof of every fact alleged upon the claimant, case. And the right of trial by jury in a case inand require two witnesses or one and equivalent volving personal freedom or abject slavery evidence in support of every fact, and exclude all for life, is certainly a most reasonable and presumption arising from the fact that the alleged just provision, as well as a clearly stated constitufugitive or his ancestors had been actually held as tional.right. And although its introduction as an slaves, and perhaps those excluding confessions, may appendage to the writ of habeas corpus is a novelty, be deemed, they depart less from the principles it is not perceived that any constitutional exception of the common law and the just rules of evidence can be taken to it, there being nothing in the Conin the trial of a question of personal freedom than stitution of the United States impairing the right of the provisions of the Fugitive Slave Act, which a State to regulate its own legal processes and remmake proof taken by the master in absence of the edies, and nothing in our own to forbid it; it makes fugitive conclusive of all except the identity of the the writ of habeas corpus in this respect like person claimed, and admit ex parte affidavits in the old writ de homine replegiando, or its substiproof of that fact. In other respects, no greater tute of personal replevin, in which the right of jury precautions are taken, than may be fairly deemed is secured, and which have long existed in this State. just and necessary by a people jealous of personal If we suppose the party arrested to be one's self, freedom, to protect themselves from danger of its brother or friend, the reasonableness and justice of invasion under the peculiar laws and institutions of these provisions will not long remain in doubt. our country.

It is to be borne in mind that in approaching the consideration of these laws, we are to view them as enacted solely for the protection of personal freedom from unlawful restraint; and not, as seems by objectors to be taken for granted, as intended to impair or embarrass the exercise of the rights of slave-masters. And they are to be tested as designed for that end and that only. If they do exceed reasonable and just precautions for that purpose,then the argument may be fairly raised of an ulterior and improper design, but not till then: and if they do not, then they are to be received as just and wise.

And such, excepting in the particulars suggested, they might be esteemed, looking only at the rights secured to slave-owners under the Constitution, in

If the inhabitant of another State were here, claiming title to an ox, a horse, or a bale of goods which he had seized and taken from another man's possession as being of his property, but claimed as his own by the party in possession, it would certainly be deemed no hardship to put him to legal proof of his title before a Court and jury, even though there were a clause in the Constitution of the U. S. requiring that any chattel belonging to him, and being found in this State, should not be thereby forfeited, but should be delivered up on claim of the owner. And it is difficult to perceive why the same principle does not apply to the case of a claimant of a fugitive slave, when the person arrested claims that he is his own master.

Here then is one class of cases clearly existing under the Constitution, in which the claimant of a fu

him in custody, holds him by virtue of such warrant for trial before such court or commissioner, the judge could go no farther than to inquire into the legal authority of the court or commissioner to issue such process, and that of the officer to execute it and retain the prisoner in custody under it.

gitive slave may seek to exercise his rights of own- the court or commissioner. Upon the return of the ership; and one in which the claim is now often as-writ stating that fact, and that the officer having serted in other States, and has been and may at any time be asserted in this, to which these provisions of the Personal Liberty Bill so called may be applied, without any conflict with the Constitution of the United States, or any laws thereof. And this being so, the enactments cannot be declared unqualifiedly unconstitutional. Any unconstitutionality imputable to them must be upon the ground of their necessary and intended applicability to other cases, and this brings us to the second class, namely:

The second class is where the claimant arrests the alleged fugitive, and restrains him of his liberty, intending, or assuming to intend, to take him before the Court or commissioner to procure the certificate of ownership and right of transportation.

In this case, if the writ of habeas corpus be served upon the claimant before he has placed the captive in custody of the Court or commissioner, the same course of reasoning applies as stated in reference to the first class of cases. No process having been issued under any law of the United States, and the prisoner being in the custody of the claimant personally, acting without authority other than his alleged ownership, he and his captive are subject to the same application of legal principles as if he had seized him without the intent to take him before the commissioner. There would be no legal necessity on his part to do so; he might abandon the intention if it ever existed; or pretend it, if it never did exist; and the rights and safety of the prisoner would require the same protection as if the seizure had been made without it.

There does not therefore seem any good reason for repealing these enactments so far as they are applicable to these two classes of cases.

No examination in either of these cases could be constitutionally had into the facts of ownership, escape or identity; because the trial of them is provided for by the law of the U. S. before such court or commissioner under such arrest: and no State legislature can constitutionally pass any law in conflict therewith, or superseding the exclusive jurisdiction thus given.

So too if the proceedings before the court or commissioner had terminated in giving to the claimant a certificate of ownership and right of transportation, and that fact appeared upon the return of the writ, perhaps the only subject of inquiry constitutionally might be as to its authenticity and the authority of the court or commissioner to grant it.

If then these 19th, 20th, and 21st sections are of necessary application to these last named classes of cases, and must be taken to be intended to be 80 applied, they are unquestionably unconstitutional as the law and judicial decisions now stand; and ought to that extent at the least to be repealed, or their operation confined to the first two classes of cases above mentioned where they are of just and reasonable application.

Now the language of the nineteenth section, providing for the trial by jury before the court isusing the writ of habeas corpus of the facts of ownership, escape, &c., is this:-"Whenever it shall appear, by the return of the officer or otherwise, that the person whose restraint or imprisonment is in question, is When however the claimant has taken the prison- claimed to be held to service or labor in another er before a court, or commissioner, in order to pro- State, and to have escaped from such service or la cure the certificate, he would be then in the legal bor, the court or justice shall, on the application of custudy of such court or commissioner, for all the any party to the proceeding, order a trial by jury, purposes of trial of ownership, escape and identity, as to any facts stated in the return of the officer or and certificate, as provided for in the fugitive slave alleged." And the 12th section, providing for act; with which custody and proceedings no the return, requires the officer or person having the constitutional right to interfere can exist. And prisoner in custody to state in writing, 1st, upon the issuing and service of the writ of habeas Whether he has the party in his custody; 2d, If he corpus, and the return of the officer that it was has, then to state the authority at large, and the under legal process from a Court of the U. S. true and whole cause of such imprisonment or reaccording to the provisions of the law of the U. S. straint, with a copy of the writ, warrant or other for that purpose made and provided, the duty of process, if any, upon which the party is restrained; the judge would be limited to examining into the so that the cause of restraint, as well as the authoriauthority of the court or commissioner, and of the ty for it, must appear in the return or statement as a fact that the prisoner was in its or his custody, pur-fact stated. It is evident therefore that the lansuant to the provisions of the law, as is required in all cases of arrest under process of law: and upon the production of such proof, to stay further proceedings; or upon failure of such proof, to require the sheriff to take the body and bring the party before the court as in any other case of unlawful detention without due process of law.

3d. So to in the third class of cases, where the alleged fugitive has been arrested under a warrant issued by

guage of the act does extend in terms to all cases of arrest whether of one as an alleged fugitive slave, or on criminal charge, or on civil process, and including any by the marshal of the United States under the Fugitive Slave Bill. And if this must be taken as the true legal construction of it, as intended to embrace that case it is certainly to that extent unconstitutional, and ought so far to be repealed.

Now it is maintained by those who uphold the

constitutionality of the Personal Liberty Bill that as this provision is free from constitutional objection when applied to one important class of cases arising under the Constitution of the United States, and that in which the greatest danger of abuse of the right to recapture fugitive slaves exists, it is not to that extent unconstitutional, and that if it would be so in its application to other classes of cases, such unconstitutionality would be in such use made of it by the court and not in the law itself which ought not to be judicially construed as extending to them :

That the express terms used in these three sections apply exactly to cases in which claimants rely upon their own title and possession, personally or by agents; and do not expressly nor by any necessary implication extend to those where the custody is claimed by another person under process of law; and that if their language is broad enough to cover these, still it must be taken subject to all constitutional limitations, resulting from any legal process prior in time or paramount in right, as the general language of all laws must be and always is: That in any event they clearly can apply only to cases where the prisoner is legally brought before the State Court upon the writ; and cannot be judi cially considered as intended to reach any where he cannot be so brought: and that as no court would issue the writ to take the person out of the custody of the marshal or any other officer holding him under legal process of the U. S., when such custody appeared to be clearly lawful as represented in the application for it; and as no power can be supposed to be given by this act to the sheriff to take a fugitive slave out of the hands of a marshal to bring him before the court-any more than to take a person in his custody charged with crime or on civil process under the laws of the United States for that purpose so none can be supposed to have been intended to be so given: but that these provisions are to be construed with the limitations and exceptions always implied in such cases as above stated:

confidence that these provisions, taken in connection with those directing the form of the writ, and its manner of service and return, do in express terms and of necessity embrace all cases whatsoever of arrest or imprisonment of alleged fugitive slaves, and impose a corresponding duty on the State Courts to conform to them, from which they can escape only by deciding them to be unconstitutional, and thus necessarily tend to produce a conflict between the Courts and officers of the United States and those of the State, dangerous to the public peace and the harmony of the Union; and that this construction is supported by the contemporaneous history of their enactment, which, it is asserted, was avowedly for the purpose of defeating provisions of the Fugitive Slave Act, considered unconstitutional and harsh and oppressive upon the citizens of the free States.

If the question of the constitutionality of these laws involved only a matter of individual private right, it might seem sufficient to leave its solution to the judicial tribunals when called to pass upon it; but as it is one of great and exciting political interest, and of a divided public opinion, and its needless continuance as a source of agitation is productive only of evil, and as some of the wisest and best among us sanction the charge upon them of unconstitutionality, which enemies of the State without and demagogues within are zealous to maintain as proof that she is faithless to her constitutional obligations; and as it becomes her in justice to herself and her sister States to avoid all appearance of evil in that behalf, it may be esteemed both reasonable and expedient to provide against such imputation by an act declaring that nothing in these statutes regulating the writ of habeas corpus shall be construed as conflicting, or intending to conflict, with the laws of the United States, or the lawful rights of any person claiming under any process thereof; and repealing the obnoxious rules of evidence above referred to. But no more than this, in reference to the writ of habeas corpus, seems to be demandable either as of right or of courtesy.

NUMBER II-PERSONAL LIBERTY.

That the language of these sections is susceptible of clear and distinct application, not only to the classes of cases where the claimant has the prisoner The remaining provisions of the so-called Personin his own possession by virtue of his constitutional al Liberty Bill, now contained in the Revised Code right of manucaption, or by seizure with asserted of 1860, Chap. 144, under the title Personal Liberty, or pretended intent to take him before a court or are of very different character, and call for much less commissioner; but also to cases of arrest under let- elaborate consideration. They were enacted, as is ters of attorney or agency, in which questions may universally known, under influence of the strong arise very suitable for trial by jury; and so may be indignation pervading this and other States in refsatisfied, without the necessity of supposing it in-erence to the fugitive slave act of 1850, and of recent tended to include arrests by process of the United outrages in southern States upon citizens of the free States: And that where it appears by the return of States; and are evidently indicative of that emotion, the officer or the statement of the party claiming rather than of legislative equanimity. custody that it was under legal process of the United States, the court would have the power as in all other cases to determine what facts were, and what were not, within its jurisdiction for trial, and would of course refuse to hear or determine anything which by virtue of the process shown was already within the jurisdiction of the court whence it issued. On the other hand, it is maintained with equal

The right of the master to retake or recover & fugitive slave who has escaped into a free State, is one clearly secured by the Constitution of the U. S., and imposes a corresponding obligation upon all who live under it and enjoy its benefits. It has been adjudged however, by the Supreme Court of the U. S. in Prigg's case, 16 Peters 622, that this obligation does not extend to requiring of the States any vol

untary aid by enactments to protect the exercise of powers with those Judges and the Judges of the Dis

this right; and indeed that they have no constitutional power to pass any; the majority of the court holding that all State laws upon the subject, whether in aid or derogation of the right, are equally unconstitutional and void.

trict Courts of the United States, in the administration of its provisions for the recapture and rendition of fugitive slaves: Those commissioners are in no sense Judges, nor can they be constitutionally invested with any judicial authority, nor be made competent for the exercise of any judicial functions under the Constitution of the United States. Their authority is the sole creation of a single judge, and revocable at his pleasure; and there is no security for their fitness for the office, mentally or morally, beyond his individual discretion and good faith.

No State and no individual therefore is under any obligation voluntarily to assist a master in attempting to recapture his slave; the Constitution and laws of the United States being the only sources of obligation on that subject. The right of the owner to retake his fugitive slave, wherever he can find him within the boundaries of the United States, is Under this act such a commissioner is authorized precisely similar to that of the owner of a stray ani- to issue a warrant on application of the claimant for mal, to retake it anywhere within the boundaries of the arrest of the alleged fugitive, directed to the the State of which he is a citizen. In neither case is Marshal, &c., or any person whom the Commissionvoluntary assistance a matter of legal or moral ob- er may appoint for the purpose. And, upon the ligation, excepting perhaps of benevolence, which prisoner's being brought before him, it is his duty might be sometimes in favor of the animal, and "to hear and determine the case of such claimant would be here almost always instinctively on the in a summary manner.” And in order so to deside of the slave. To throw any impediment how-termine the case, the act compels him to receive, ever in the way of the lawful exercise of this right would be a clear violation of legal duty.

But although no voluntary aid can be thus legally invoked of a free State to assist in the recapture and return of a fugitive from slavery, it does not become its legislature to brand with ignominy and penal forfeiture any act lawfully done in support of the constitutional rights of a citizen of the United States; or to enact laws placing such services in the catalogue of ignominious crimes.

Before entering upon the consideration of these laws, it is necessary to state, in brief, the provisions of the Fugitive Slave Act, against the alleged enormities of which they were intended for protection. This is essential in order to understand how far they are justly obnoxious to the sweeping denunciations of them so frequently made, as being grossly unconstitutional and gratuitously insulting to the citizens of the Southern States; and which are almost always so made without any reference to the congressional legislation, then under Southern control, endangering the rights of personal freedom, and in obvious disregard, to say no worse, of the feelings and sentiments of citizens of the free States, at which these enactments were aimed.

An enactment may appear in spirit or by construction unconstitutional, or in disregard of constitutional right, as tending to place any hindrance in the way of their exercise, if wantonly made, and seemingly for no other purpose, which might cease to be justly so considered if made necessary for defence of other constitutional rights, against laws previously made or appearing to be made in derogation of them.

if the claimant chooses to produce it, as conclusive evidence of the ownership and escape, ex parte proof satisfactory to any court of record-or judge thereof in vacation, in the State from which the escape is alleged to have been made, certified as on record in such court: and also to receive, if required, the like proof of a "general description of the person so escaping, with such convenient certainty as may be;" "and upon the production of other and further evidence, if necessary, either oral or by affidavit, in addition to what is contained in the said record of identity of the person escaping, he shall be delivered up to the claimant.”

And the Commissioner shall

thereupon give to the claimant a certificate of the ownership and escape, with authority to take the alleged fugitive back to the State whence he escaped : and which certificate, the statute says, "shall be CONCLUSIVE of the right of the person in whose favor granted so to remove him;" "and shall prevent all molestation of such person by any process issued by any court, judge, or magistrate, or other person whomsoever."

By virtue of this act, then, a free man, on the claim of a person declaring him to be his fugitive slave, may be seized by a warrant from a commissioner having no judicial authority whatsoever: and being thus brought before him, the commissioner is thereupon to determine the case in a summary manner; and, if the claimant requires, to determine it upon ex parte testimony, taken in a far-distant State or Territory, of witnesses whom the commissioner never saw or heard of; persons whom the prisoner never saw, and who never saw him; with whom he is not confronted; and whom he has no power to cross-examine; but which the commissioner, if reA dispassionate consideration of both enactments quired, is compelled to receive as conclusive of ownwill prove the best means of leading to a proper solu-ership and escape; and not to permit to be denied tion of the questions of constitutionality, repeal and modification on either side.

That act gives to Commissioners, appointed by the several Judges of the Circuit Courts of the Unied States for their respective circuits, coördinate

or contradicted, however perfect evidence may be offered to the contrary: and upon like testimony as to identity by general description of the person with such convenient certainty as may be; and further evidence, oral or by affidavit, if necessary, as

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