the antagonistic right of any one claiming him as such will be beyond the specified amount of twenty dollars.' $944. It would seem that the objection to these Acts of Congress for allowing the person claimed to be delivered up without jury trial must be based more on the seventh article of the Amendments, which guarantees it in cases at common law, than on the fifth, which declares that no person shall be deprived of life, liberty, or property, without due process of law. It seems to be very commonly held that the latter limits the juridical action of the national Government only in the exercise of punitive authority, or the power to punish violations of some law (public wrongs), and not in the judicial establishment of rights and obligations existing in relations between private persons. There may be no direct judicial authority to that effect, but the clause seems to have been noticed by the leading commentators only in connection with criminal jurisprudence." 'In Lee v. Lee, 8 Peters, 47, a claim for freedom in the District of Columbia, Mr. Justice Thompson, delivering the Opinion of the Court, said:-"On the part of the defendant in error, a preliminary objection has been made to the jurisdiction of this court, growing out of the Act of Congress of the 2d of April, 1816 (Davis' Col. 305), which declares that no cause shall be removed from the Circuit Court for the District of Columbia, to the Supreme Court, by appeal or writ of error, unless the matter in dispute shall be of the value of one thousand dollars or upwards. The matter in dispute in this case is the freedom of the petitioners. The judgment of the court below is against the claims to freedom. The matter in dispute is, therefore, to the plaintiff in error, the value of their freedom, and this is not susceptible of pecuniary valuation. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves as property would have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits estimating the value of freedom are entirely inadmissible, and we entertain no doubt of the jurisdiction of the court." This authority was cited by Mr. O'Conor, counsel in Jack v. Martin, 14 Wend. 521. But in Barry v. Mercein, 5 How. R. 103, it was held that the Supreme Court of the United States has no jurisdiction when the circuit court refuses the writ of habeas corpus, because the value of the dispute is, in its nature, incapable of being estimated in money, and the rule of jurisdiction cannot be ap plied. See also in matter of Metzger, 5 How. R. 176. (1 Kent, p. 324, 7th ed., n.) 2 Story, Comm. § 1788, says of this clause:-"This also is an affirmance of a common-law privilege. But it is of inestimable value." Then, after some observations on extorted evidence, he says, in § 1789:-"The other part of the clause is but an enlargement of the language of Magna Charta Nec super,' etc. Neither will we pass upon him,' &c. Lord Coke says that these latter words, per legem terra (by the law of the land), mean by due process of law; that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law. So that this clause, in effect, affirms the right of trial according to the process and proceeding of the common law." (Citing 2 Inst. 50, 51; 2 Kent, Lec. 24; Cave's Eng. Liberties, 19; 1 Tuck. Bl. Comm. App. 304, 305; Barrington on St. 17, 867.) Kent, 2 Comm., p. 13, speaks of the phrases in connec If it be asked-by what process of reasoning the delivery, by public authority, of a person, presumptively free, to the custody and control of another private person, as the bondman of the latter, is not to be called depriving one of his liberty?— the distinction may perhaps be founded on the meaning of the word deprived construed in connection with the modes in which legal rights and obligations are recognized when legal relations are to be maintained as the effects of positive law. It might not, perhaps, be a too-finely-spun distinction to say, that the judicial determination of the fact, whether a disability or obligation, incompatible with some individual or absolute right, has a legal existence, and the enforcement or establishment of the right correlative to that disability or obligation are very different from juridical action in punitive jurisprudence when a person who has violated some law is debarred of the enjoyment of an individual or absolute right which he possessed before. It might be said that the last, only, can be called the deprivation of a right; that the first is the judicial establishment of the fact that a certain right was not the right of the person to whom it is thereby judicially denied, or that it did not legally exist. It might, perhaps, be said that the presumptive attribution of liberty, in cases of claim to personal service, is only a rule of evidence; that it is not such a confession of an existing right to the enjoyment of personal liberty as is made in every case wherein question is made of the liability of a person to a punitive law decreeing imprisonment. It is only a presumption throwing the burden of proof on the other side; it being still supposed that the right may not in fact belong to the person to whom it is so attributed, and the inquiry is, whether the right exists or not.' tion with criminal jurisprudence only, and says:-"The words, law of the land, used in Magna Charta, in reference to this subject, are understood to mean due process of law; that is, by indictment and presentment of good and lawful men. And this, says Coke, is the true sense and exposition of the words." But Kent adds: -"The better and larger definition of due process of law is, that it means law in its regular course of administration through courts of justice,"-meaning, apparently, that jury trial is not intended to be guaranteed. See also A. S. Johnson, J., in 3 Kernan, N. Y. 425. Judge Ruffin, in Hoke v. Henderson, 4 Devereux, 15, held the guarantee to apply in reference to "divesting of the rights of property," as well as "to the infliction of punishments." Such a distinction may seem to have been illustrated in two cases in New York, where statutes transferring private property from one person to another 945. By the above exposition of these constitutional guarantees, the objection against the two Acts of Congress, as violating the seventh article of Amendment by not allowing a determination by a jury of the issues arising on a claim for a fugitive from service under the provision, seems to be well founded. If this argument is of any force against the weight of authority on this point, it also confirms the conclusion, reached in the last chapter, that the action of the commissioners, according to the law of 1850, does involve an exercise of the judicial power of the United States. § 946. Among the means provided by Congress for the delivering up fugitives from labor, it is also necessary to consider the objection that the Acts of Congress, in authorizing a seizure of the alleged fugitive without a warrant, are in violation of the fourth Amendment, declaring that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." 1 The cases sustaining the right to seize and remove the alleged fugitive from the State in which he is found, as a right given by the provision in the Constitution, would apparently be authorities sustaining the right to arrest under the legislation of Congress, as the less included in the greater; and there may be cases wherein a right to seize for the purpose of making a claim before public authority, is recognized as given by the were held to violate the clause in the State Constitution "inhibiting the depriva tion of property without due process of law.” In the matter of John and Cherry Streets, 19 Wend. 676, Cowen, J., says that the clause means" that to work a change of property from one private person to another, some proceeding must be had in a court of justice," &c. In Taylor v. Porter, 4 Hill, 146, Bronson, J.:-" It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses before either of them can be taken from him," &c. By this last statement, controversies respecting the right of property seem included. But, admitting the application of the clause against the transfer of property, it does not seem to render the verdict of a jury necessary to such transfer, for, by the New York railroad law of April 2, 1850, sec. 49, the value of land taken from private persons is determined by commissioners. See Buf. & N. Y. R. R. v. Brainard, 9 N. Y. (5 Selden), 100. 1 See the objection taken by counsel in 2 Pick, 15, 9 Oh. 174. Judge Thacher's objection was that, as the law of 1793 had not specified how the arrest was to be made, an intention to follow the local procedure must be supposed. See ante, p. 553. "The term unreasonable is used to indicate that the sanction of a legal warrant is to be obtained before such searches or seizures are made." Rawle on the Const., 127. constitutional provision, while the doctrine of removal without establishing such claim is rejected.' In some cases the right to seize may be ascribed only to the legislation of Congress. But all the cases in which custody originating in such seizure has been judicially maintained, are authorities against the force of this objection. The only argument judicially relied on,' in answer to the 1 In 9 Oh., 174, Mr. Wolcott spoke of the Act as intended to protect the claimant, not merely in arresting the fugitive for the purpose of making a claim before a judge or commissioner, but also in removing the supposed fugitive from the State without obtaining a certificate. But the Act has not been commonly so understood. The argument of Mr. B. R. Curtis, in the Opinion written for the marshal, is, on this point, as full, probably, as any that has been given. It is as follows: "The objection to this law that it conflicts with the fourth article of the Amendments, which establishes the right of the people to be secure against unreasonable searches and seizures, seems to me to have no application to the case. It has been determined, upon great consideration, by the Supreme Court of the United States, in Prigg's case, that, by force of the Constitution itself, the owner of a slave is clothed with authority, without any warrant, to seize and recapture his slave. And this is in conformity with decisions previously made in the highest courts of several States, and, among others, of the State of Massachusetts (2 Pick., p. 11). It was also determined in Prigg's case, upon reasoning which it seems to me impossible to resist, that Congress has the power by legislation to afford means to enforce the delivery and secure the subsequent possession of the slave. Now, if the exercise of the right of recaption without any warrant is constitutional, I think it would be difficult to show that the exercise of this same right by the aid of a warrant, issued in conformity with an Act of Congress, designed to afford means to enforce the delivery, is not constitutional. It is well known that this fourth article was in affirmance of the doctrine of the common law, which prohibits general warrants, and was designed to restrain the government from making searches and seizures of the persons, houses, papers, and effects of the people of the United States, either without warrants, or upon warrants not conformable to the terms of this section. But if the class of persons now in question are not embraced in the word people, if they are not protected from seizure, if, on the contrary, the Constitution itself has conferred the right to seize them without warrant, it would be difficult to maintain that a seizure by a warrant is not allowed by the Constitution. In the case before referred to, in 2 Pick. R., Mr. Justice Thacher dissented from the other judges, because there was no warrant used. I have not known of any judge who thought the existence of a warrant an objection. “Indeed, I see nothing in this Act of 1850 which would render it improper for the court, or the commissioner, to require the case to be brought within the very terms of the fourth article of the Amendments. The 6th section of the Act says the claimant may procure a warrant from some one of the courts, &c. It prescribes no rule to govern the action of the court in issuing the warrant. If it were at all doubtful whether the case be within this fourth article, I should suppose that any court would take care to have the preliminary requisites, made by this article, complied with. I understand they were complied with in the cases in which warrants have been issued here. "It has been repeatedly suggested that this reasoning proceeds on the assumption that the person sought for is, in fact, a fugitive from labor,-a fact which, when the warrant issues, still remains to be established. This is true; but it is none the less true in all other instances of legal proceedings. The law affords a remedy for a particular class of cases, describing that class of cases so as to dis objection, seems to be that of Parker, Ch. J., in Commonw. v. Griffith, 2 Pick., 17 (ante, p. 552), that, admitting the general application of the objection, the guarantee does not apply in the case of a person claimed as a fugitive from labor, because slaves were not or are not "parties to the Constitution." The argument, if valid here, applies equally against objections founded on other guarantees in the Constitution, and has been already considered.' But, on this point, the true doctrine may be, that a warrant for the purpose of making claim, according to the Acts of Congress, is not necessary under this Amendment, because it applies only in the application of punitive law." This being admitted, it would seem competent for Congress to authorize the claimant to arrest for the purpose of bringing the fugitive before the tribunal which is to determine the claim. But there is an immense distinction between allowing a seizure on this ground, and placing it on the basis (upon which so much has been built) that the person liable to the claim is a slave who, in the slaveholding State, might be seized by his owner. tinguish it from all others. Whenever any step in the progress of this remedy is taken before trial, it can only be upon the assumption that the case belongs to that class. Thus the law of this Commonwealth allows one who has a legal claim to attach the property of him against whom the claim exists. It does not allow one who has no legal claim to attach another's property. Yet, from the nature of the case, the attachment precedes the trial, and is made upon an assumption that there is a legal claim. So, when a demand for the extradition of a person charged with a crime in England is made here, the warrant must issue upon an assumption of certain facts, which, upon the examination, may turn out not to exist. "I apprehend that if the law, on its face, describes a class of cases, and authorizes process only in those cases, it can never be an objection to the constitutionality of that law that, though it is valid when confined to those cases, it may by accident or malice be applied to others, not within its terms or meaning; which others, if included in the law, would have rendered it, as to those cases, unconstitutional. The obvious reason is, that these latter cases are not embraced in the law, and therefore cannot affect it. It would certainly be a strange argument against the constitutionality of a new penal law, that persons who did the act made penal, previous to its being made so, might, by accident or malice, be punished under it. Yet it seems to me to be the same argument which I have been adverting to." 1 Ante, p. 726. plaintiff had been ar- 2 Walker v. Cruikshank, 2 Hill, 300. In trespass: the rested under warrant issued without preliminary affidavit. referred to the Bill of Rights, which provides, &c. inal process, and has nothing to do with arrests in civil suits. had a Bill of Rights, and yet, until a very recent period," &c. Compare the arguments ante, p. 553 note, and § 816. 3 |