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.