Imágenes de páginas
PDF
EPUB

By a law which should provide for a transfer, by public authority, of the supposed fugitive to the jurisdiction from which he is said to have escaped, and a judicial determination of the claim in the same, the parallelism which has been supposed between these cases and the extradition of fugitives from justice would be established.'

If, after such a transfer, the claim is heard before a judge capable of holding the judicial power of the United States, and if a jury is given on the demand of either party, these constitutional guarantees will have been satisfied.'

A law which should thus allow a trial of the facts, when disputed, by a jury in the State by whose laws the person claimed is said to have been held to service or labor and from which he is said to have escaped has, on several occasions, been proposed in Congress. While the original bill for the law of 1850 was under consideration, the Senate Committee of Thirteen on the Compromise Measures of that year reported in favor of amending the bill by providing that such a trial might be had when the person carried back as a fugitive persisted in denying that he was a slave or owed service.' Mr. Underwood, of Kentucky, also introduced, as an amendment, a bill providing for such a trial in the State to which the reclaimed person should be taken, "to be conformable to the laws of the State in that behalf," which was rejected in the Senate, Aug. 23, 1850.*

have been where the lord commenced the contest by nativo habendo. This common-law rule would limit the judicial application of the provision in the absence of a statute (ante, § 827), but could hardly limit the legislative power of Congress. 'Compare ante, § 916.

But the jury should be constituted under the sanctions of the English common law, as distinguished from the law of the slave State for the trial of similar issues. See ante, § 938.

Mr. Clay was chairman of the committee, and advocated the measure in the Senate. See his remarks of May 13 and 21, 1850, in vol. 22, App. to Congressional Globe, 571, 612; and 2 Clay's Speeches, 459. The amendment to the bill appears to have been introduced in the committee by Mr. Cass, who also declared his opinion in favor of it in the discussion of August 26, 1852, which arose on Mr. Sumner's speech on his motion to repeal the Act of 1850. See vol. 25, App. Cong. Globe, 1124, 1125. Both Mr. Cass and Mr. Clay are said to have afterwards declared that they would have advocated such a provision. See Louisville Journal, May 11, 1850; Detroit Free Press, May, 1850. It does not appear that either of these senators thought such a provision essential to satisfy the requirements of the Constitution. The amendment to the bill was rejected in the Senate on the strenuous objection of Mr. Borland, of Arkansas, and other Southern senators. 4 See Journals 1st Session 31st Cong. 576-579.

A bill, amending the fugitive-slave law by providing for such a trial in the Circuit Court of the United States in the State to which the reclaimed person shall be carried back, received the vote of a majority of the House of Representatives, March 1, 1861.'

During the same session, Mr. Douglas introduced a bill in the Senate to amend the existing Acts, which also, I believe, provided for such a trial.'

3

§ 960. In the exciting debates which preceded the adoption of the Compromise Measures of 1850, the provisions of the fugitive-slave law received little or no examination in either branch of the national Legislature. On the occasion of Mr. Sumner's speech, on his motion to repeal the law, August 26, 1852, many other senators expressed opinions. So far as any argument in support of the law was then advanced, it rests on the assumptions that the action of the judge or commissioner is preliminary, and that the delivery of a fugitive on claim is not, in its legal aspects, distinguishable from the extradition of a fugitive from justice; while the power of Congress was supported either by the argument from necessity or by that from long acquiescence.

1 House Bill No. 1009. It was read in the Senate for the first time only, March 2, 1861.

2 Senate Bill No. 549. Jan. 28, 1861, read, by consent, the first and second times, and referred to the Judiciary Committee.

3 Benton's Thirty Years' View, vol. 2. p. 780:-" The wonder is how such an Act came to pass, even by so lean a vote as it received: for it was voted for by less than half of the Senate, and by six less than the number of senators from the slave States alone. It is a wonder how it passed at all; and the wonder increases on knowing that, of the small number that voted for it, many were against it, and merely went along with those who had constituted themselves the particular guardians of the rights of the slave States, and claimed a lead in all that concerned them. These self-instituted guardians were permitted to have their own way, some voting with them unwillingly, others not voting at all. It was part of the plan of compromise and pacification' which was then deemed essential to save the Union; and under the fear of danger to the Union on one hand, and the charms of pacification and compromise on the other, a few heated spirits got the control, and had things their own way."

CHAPTER XXXI.

THE DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE
SUBJECT CONTINUED. OF THAT PORTION OF THIS LAW WHICH
IS IDENTIFIED WITH THE LAW OF SOME SEVERAL STATE. OF
STATE LEGISLATION IN RESPECT TO FUGITIVES. OF THE POWER
OF CONGRESS IN RESPECT TO THE DOMESTIC SLAVE TRADE.
SOME QUESTIONS OF THE STATUS OF PERSONS AS DETERMINED
BY THIS LAW.

OF

§ 961. In the preceding ten chapters inquiry has been directed to the determination of rights and duties of private persons, in relations arising out of conditions of freedom and its contraries, by the quasi-international law of the United States identified in authority with the national municipal law. According to the method hereinbefore proposed, the next subject of investigation is the determination of rights and duties of private persons, in relations arising out of conditions of freedom and its contraries, by that branch of the domestic international law of the United States which, in authority, is identified with the local municipal law of the several States.'

Other topics have herein already been considered to an extent which precludes an equally full exposition of this branch of the main subject in the present volume. The State law having this international character can here be noticed only as it is that law which must determine a few prominent questions which, on reasoning given in the preceding chapters, are supposed not to be determined by the quasi-international law of the United States contained in the provisions of the fourth Article.

It results, from the assumption that in each State of the Union this international law derives its authority from the

1 Ante, p. 233.

independent will of such State, that the statutes and decisions of the State which is the forum of jurisdiction must, in any particular case, be received as the best exponents of this law, as compared with the statutes and decisions of other States which may have been also promulgated as exponents of the same international law. But, in theory, this law, so far as it is common or unwritten law, may be regarded as one common to all the States of the Union: as the international private law customarily received in any one country is supposed to be a law received by all civilized countries, and, as this law, supposed to be common to all the States of the Union, may, in theory, be regarded as the international private law of the civilized world. In the absence of statutes and decisions of the State which is the forum of jurisdiction, the decisions of other States and other nations may be referred to.'

This State law may be derived, in part, from positive legislation. The State statutes relating to the condition of persons coming from other States have been indicated in the abstracts of the legislation of the several States given in the earlier chapters of this volume. It would be impossible here to present the customary or unwritten international law as it may be received in any one or more of the several States on any particular question noticed in this chapter. This customary or unwritten law can here be regarded only a law presumptively common to the several States. As such, it has, for the greater part, been already given in the exposition of the international private law of the colonies and States before the adoption of the Constitution."

§ 962. The question as to the validity of State legislation for the purpose of carrying into execution the provisions of the second section of the fourth Article, in relation to fugitives from justice and from service or labor, may be presented as a question as to the classification of the topic under one or the other of the two branches of the domestic international law of the United States. Or the subject may be referred to the general inquiry hereinbefore stated' by what means are these provisions to be made operative on private persons?

1Ante, § 388.

2 See Chapters VII., VIII., IX., X.

'Ante, p. 421.

The authorities bearing on this question cannot here be classified. The Opinion of the Supreme Court, in Prigg's case, declaring absolutely null and void all State legislation in respect to the delivery of fugitives from labor on claim, has been very generally received as controlling authority;' though doubts as to the correctness of that doctrine have been very often expressed, even by those who have maintained the legis lation of Congress.

This question is directly connected with that of the true construction of these provisions. If the first of the four constructions already indicated' were to be adopted, it would follow that the means of carrying them into effect are to be derived exclusively from State legislation. Under this construction, the subject could not be classified under the head of quasi-international law identified in authority with the national municipal law, under which head it has herein before been treated. It would, under that view, be a topic of that international private law which in each State rests on the authority of the several State and is part of its local law.

If the second construction were adopted as the true basis of the legislation of Congress, it would be impossible to give an answer to this inquiry which should be consistent both with this construction and with the doctrine of Prigg's case. For, under this construction, it is assumed that the States must and can legislate, but will not; while the Supreme Court declares that they shall not, and, indeed, cannot, though they would.'

According to either adaptation of the third construction, the duty correlative to the right given by either provision is the duty of the national Government, and the States certainly cannot legislate to enforce any duty of the national Government, whether by carrying into execution the judicial power of the United States or otherwise.

According to the fourth construction, the provision operates

116 Peters, 622: ante, p. 475; Kirk's Case, 1 Parker's Cr. 67; Richardson v. Beebe, 9 Law Rep. 316; Graves v. The State, 1 Carter, 368; S. C., Smith's Ind. 258; Donnell v. The State, 3 Porter's Ind. 481; Thornton's Case, 11 Illinois, 332. But the State police power may be exerted. Eells v. The People, 4 Scammon, 498; Landry . Klopman, 13 La. Ann. 345.

2 Ante, p. 421.

See Smith, J., in 3 Wisc. 103; ante, p. 517, note.

« AnteriorContinuar »