section 4.: The State Magistrates, authorized by the Act of 1793, to deliver up fugitives from service or labor, are not constitutional tribunals for that purpose.

The Act of 1793 requires the State magistrates—“any magistrate of a county, city, or town corporate”—to deliver up fugitives from service or labor. This provision is plainly unconstitutional, for several reasons, to wit:

1. The State Courts are not “established” by Congress, as the constitution expressly requires that all courts shall be, in whom “the judicial power of the United States shall be vested.”

2. The “judges” of the State courts do not “at stated times, receive for their services a compensation,” (from the United States,) as the constitution requires that the judges of the United States shall do.

3. The judges of the State courts do not receive their offices or appointments in any of the modes prescribed by the constitution. The president does not “nominate,” nor does he “by and with the consent of the Senate, appoint” them to their offices; nor is their “appointment vested in the president alone, in the courts of law, or in the heads of departments.”

4. The State magistrates are not commissioned by the President of the United States, as the constitution requires that “all officers of the United States” shall be.

5. The State judges are not amenable to the United States for their conduct in their offices; they cannot be impeached, or removed from their offices, by the Congress or the government of the United States.

For these reasons the Act of 1793, requiring the State magistrates to deliver up fugitives, is palpably unconstitutional. Indeed the Supreme Court of the United States have decided as much; for they have decided that,

“Congress cannot vest any portion of the judicial power of Edition: current; Page: [13] the United States, except in courts ordained and established by itself.”—Martin vs. Hunters, Lessee, 1 Wheaton 330.

Also, “The jurisdiction over such cases, (cases arising under the constitution, laws, and treaties of the United States,) could not exist in the State courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States.”—Same, p. 335.

But although this act is thus palpably unconstitutional, the Supreme Court, in the Prigg case, with a corruption, that ought to startle the nation, and shake their faith in all its decisions in regard to slavery, declared that “no doubt is entertained by this court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation.”—16 Peters, 622.

Thus this court, who knew—as the same court had previously determined—that Congress could confer upon the State magistrates no “judicial power” whatever, nevertheless attempted to encourage them to assume the office of judges of the United States, and use it for the purpose of returning men into bondage—under the pretence that an act of Congress, admitted to be unconstitutional, would yet be a sufficient justification for the deed.

That court knew perfectly well that a law authorizing a claimant to arrest a man, on the allegation that he was a slave, and then take him before the first man or woman he might happen to meet in the street, and authorizing such man or woman to adjudicate the question, would be equally constitutional with this act of 1793, and would confer just as much judicial authority upon such man or woman, as this act of 1793 conferred upon the State magistrates; and that it would be just as lawful for such man or woman to adjudicate the case of an alleged slave, and return him into bondage, under such a law, as it is for a State magistrate to do it under the law of 1793.

It is worthy of remark, that the same judge—and he a northern one, (Story,)—who delivered the opinion, declaring Edition: current; Page: [14] that “Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself,” delivered the other opinion declaring that “no doubt is entertained by this court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation.”

It is also worthy of notice, that every one of the definitions before given, (Sec. 2,) of “claim,” “suit,” and “common law,”—from which it appears that a “claim” for a fugitive slave is a “suit at common law,” within the meaning of the constitution, and must therefore be tried by a jury—were taken from opinions delivered in the Supreme Court by Story. He also, in the Prigg case, said that a claim for a fugitive slave “constitutes, in the strictest sense, a controversy between the parties, and a case ‘arising under the constitution of the United States,’ within the express delegation of judicial power given by that instrument.” And yet this same Story, in his Commentaries on the Constitution, says that this “suit at common law,” this “controversy between the parties,” this “case arising under the constitution, within the express delegation of judicial power given by that instrument,” has no more claim to a judicial investigation on its merits, than is had when a fugitive from justice is delivered up for trial. He says,

“It is obvious that these provisions for the arrest and removal of fugitives of both classes contemplate summary ministerial (not judicial, but ministerial—that is executive) proceedings, and not the ordinary course of judicial investigations, to ascertain whether the complaint be well founded, or the claim of ownership be established beyond all legal controversy. In cases of suspected crimes the guilt or innocence of the party is to be made out at his trial; and not upon the preliminary inquiry, whether he shall be delivered up. All that would seem in such cases to be necessary is, that there should be prima facie evidence before the executive authority to satisfy its judgment, that there is probable cause to believe the party guilty, such as upon an ordinary warrant would justify his commitment for trial. And in cases of fugitive slaves there would seem to be the same necessity for requiring only prima facie proofs of ownership, without putting the party, (the claimant,) to a formal assertion of his rights by a suit at law.”

3 Story’s Commentaries, 677-8.

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The Act of 1850 is unconstitutional for the same reason as is the Act of 1793; for the Act of 1850 (Sec. 10,) authorizes any State Court of record, or judge thereof in vacation, to take testimony as to the two facts of a man’s being a slave, and of his escape; and it provides that any testimony which shall be “satisfactory” to such State “court, or judge thereof in vacation,” on those two points, “shall be held and taken to be full and conclusive evidence” of those facts, by the United States “court, judge, or commissioner,” who may have the final disposal of the case.

It thus authorizes the State court, or judge thereof in vacation, absolutely, and without appeal, to try those two points in every case—leaving only the single point of identity to be tried by the United States “court, judge, or commissioner.”

Now it is as clearly unconstitutional for Congress to give, to a State court or judge, final jurisdiction, (or even partial jurisdiction,) of two-thirds of a case, (that is, of two, out of the only three, points involved in the case,) as it would be to give them jurisdiction of the whole case.

I suppose the ground, if any, on which Congress would pretend to justify this legislation, is the following provision of the constitution—(Art. 4, Sec. 1.)

“Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

But “the public acts, records, and judicial proceedings” of a State, which are here spoken of, are only “the public acts, records, and judicial proceedings,” done, made, and had, by State officers, under the laws of the State. A State judge is not an officer of the State, when exercising an authority conferred upon him by the United States; nor are his “acts, records, or judicial proceedings,” the “acts, records, or judicial proceedings” of the State—but only of the United States.* It is only Edition: current; Page: [16] when acting as an officer of the State, under the laws of the State, that his “acts, records, and judicial proceedings” are the “acts, records, and judicial proceedings” of the State.

Congress seem to have been inspired with the idea that, although they could not directly confer upon a State judge that “judicial power,” which the constitution requires to be vested only in judges of the United States, yet, if, by any unconstitutional law, they could but induce a State judge to exercise “the judicial power of the United States,” so far as to hear and determine upon the evidence, (in a case arising under the constitution and laws of the United States,) and make a record of his proceedings and determination, they (Congress) could then, by virtue of this article of the constitution, “prescribe the manner in which such records and judicial proceedings shall be proved, and the effect thereof,” (before a court of the United States,) as if they were really the “records and judicial proceedings” of the State itself.

If this wonderfully adroit process were to succeed, Congress would be able to transfer all the real “judicial power of the United States,” to the State “courts, or judges thereof in vacation”—leaving the United States courts nothing to do but to receive the “records” made by these State courts and judges, and give them such “effect” as Congress might prescribe.

But this remarkable contrivance must fail of its purpose, unless it can be shown that the “acts, records and judicial proceedings,” which may be had and made by a State “court of record, or judge thereof in vacation,”—not by virtue of any authority granted them by the State, but only by virtue of an unconstitutional law of Congress—are really the “acts, records, and judicial proceedings” of the State itself.

The motive of this attempt, on the part of Congress, to transfer to the State courts and judges full and final jurisdiction over the two facts, that a man was a slave, and that he escaped, is doubtless to be found in the statement made by Edition: current; Page: [17] Senator Mason, of Virginia, the Chairman of the Committee that reported the bill, and the principal champion of the bill in the Senate. In a speech upon the bill, on the 19th day of August, 1850, (as reported in the Washington Union and Intelligencer,) in describing “the actual evils under which the slave States labor in reference to the reclamation of these fugitives,” he said—

“Then again, it is proposed, (by one of the opponents of the bill,) as a part of the proof to be adduced at the hearing after the fugitive has been recaptured, that evidence shall be brought by the claimant to show that slavery is established in the State from which the fugitive has absconded. Now, this very thing, in a recent case in the city of New York, was required by one of the judges of that State, which case attracted the attention of the authorities of Maryland, and against which they protested, because of the indignities heaped upon their citizens, and the losses which they sustained in that city. In that case, the judge of the State court required proof that slavery was established in Maryland, and went so far as to say that the only mode of proving it was by reference to the statute book. Such proof is required in the Senator’s amendment; and if he means by this that proof shall be brought that slavery is established by existing laws, it is impossible to comply with the requisition, for no such proof can be produced, I apprehend, in any of the slave States. I am not aware that there is a single State in which the institution is established by positive law. On a former occasion, and on a different topic, it was my duty to endeavor to show to the Senate that no such law was necessary for its establishment; certainly none could be found, and none was required in any of the States of the Union.”

It thus appears by the confession of the champion of the bill himself, that every one of these fugitive slave cases would break down on the first point to be proved, to wit, that the alleged fugitive was a slave—if that fact were left to be proved before a court that should require the claimant to show any law which made the man a slave. It was therefore indispensable that this fact should be proved only to the satisfaction of one of those State judges, who have acquired the habit of deciding men to be slaves, without any law being shown for it.

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