Had the constitution said a fugitive guilty of murder, &c., shall be delivered up, could a man be delivered up until proved guilty of murder? Yet the word guilty is no stronger in reference to a fugitive from justice than is the word held in reference to a fugitive from service.
Another distinction between the cases is not less marked than the preceding. When the fugitive from justice is claimed, he is claimed by a state for having violated its law, and when he is delivered up he is delivered into the custody of the law. Legal process must have been commenced against him in the state from which he fled. He is returned, that the prosecution thus commenced may be completed. He is delivered from an officer of the law in one state to the officer of the law in another state. He is transferred, not to avoid a trial, but to have one. The original indictment or charge, the arrest in a foreign state, and the delivery and transportation to the place of trial, are but separate parts of one legal proceeding. The shield of the law is continued over him. All the time and all the way, he has the solemn pledge of the government, that if not found guilty on the prosecution then pending, he shall be discharged.
But the alleged slave is claimed not by a state, but by an individual, and he is delivered up, not into the custody of the law, where his right might be adjudicated upon, but into private hands; not into the hands of a neutral or indifferent person even, but into the hands of a party interested to deprive him of all his rights, and who himself claims to be judge, jury, and all the witnesses, in determining what those rights are. If he be not a slave, then he is delivered into the hands of a man-stealer. The shield of the law is not continued over him; nay, the Fugitive Slave act expressly provides that, whatever his rights may be, yet, while in transitu, the law shall not recognize them. The certificate given by the commissioner to the claimant is to prevent “all molestation of him by any process issued by the court, judge, magistrate, or other person whomsoever.” Under this practical interpretation of our constitution, which, as its own preamble declares, was formed to “establish justice, and secure the blessings of liberty,” it takes better care of felons than of freemen.
But there are other provisions of the constitution respecting the trial of criminals, which would control this provision respecting the delivery of fugitives from justice, even if there should be any doubts about its true construction. By the constitution as originally adopted, and by the fifth amendment, all crimes, (except in cases of impeachment, or in the land and naval forces,) are to be tried in the state and district where committed. This makes it impossible to try a fugitive from justice in the state to which he has fled. It is an express prohibition against trying him there. But no such prohibition exists, no analogous provision exists, respecting the trial of “suits at common law,” or the trial of “cases” or “controversies,” in which a man may be deprived of “life, liberty, or property.” These cases, therefore, not being taken out of the general provisions of the constitution for securing the rights of the citizen, are left within it, and hence must be tried by a jury in the place where the claim is made.
My next objection to this law is, that it attempts to suspend the writ of habeas corpus.
The constitution says, “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” The Fugitive Slave law declares that the “certificate” given to the claimant, his agent or attorney, “shall prevent all molestation of said person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.” Now, as a writ of habeas corpus is a “process issued by a court or judge,” it follows, that, according to the terms of the Fugitive Slave law, the slave owner is not to be “molested” by that process. What, then, will constitute a “molestation” of him under this law? Would the service of a writ of habeas corpus upon him, and, in case of his refusal voluntarily to obey it, the seizure of his person, and the carrying of him bodily before the court, perhaps a hundred miles out of his way;—would the moral necessity of employing counsel, and being otherwise subjected to great expense, both of money and time;—would any or all of these impediments and privations amount to what this law denominates “molestation”? If they would, then the slave owner is exempted from them. And if so exempted from them, is not the privilege of the writ of habeas corpus “suspended,” as to his pretended slave? What else can a “suspension” of it mean?
But take the other alternative. Suppose the writ of habeas corpus to be issued, and a return of all the facts by which the supposed slave is held to be made. The very return brings the Fugitive Slave act before the court; and if the act is before the court, then, surely, the question is also before the court, whether it is constitutional or not. For, if unconstitutional, it is no law, and no justification of the restraint. Suppose the court to decide the act to be unconstitutional, and to discharge the prisoner. This surely would be a “molestation” of him, in the strongest sense of the word. To say the least of it, then, the law contains an insolent and audacious provision, forbidding the “courts, judges, magistrates, and all other persons whomsoever,” to do what it may be their sworn constitutional duty to do,—that is, to inquire into the constitutionality of the law, and, if found to be unconstitutional, to disregard it.
I am aware of the astute reasoning of the present able attorney-general of the United States. He says, first, that the act does not suspend the writ of habeas corpus, because such suspension would be “a plain and palpable violation of the constitution, and no intention to commit such a violation of the constitution ought to be imputed” to Congress; and second, that if the certificate of the commissioner is shown “upon the application of the fugitive for a writ of habeas corpus, it prevents the issuing of the writ; if upon the return, it discharges the writ, and restores or maintains the custody.”
The first reason might be more briefly stated thus: it don’t because it don’t; or it don’t because it can’t.
The second is as little satisfactory as the first. If the facts are shown, it says, upon the fugitive’s application for a writ, no writ will issue; if shown upon the return of the writ, it will be abated. Is it not most clear that this assumes the very question in dispute, whether the law on which the certificate is founded be constitutional or not? The statement may be all very true, if the law be constitutional; but suppose the law to be unconstitutional, would not the statement be superlatively absurd? Yet whether the law be constitutional or not, is the very question to be determined.