section 5.: Ex parte Evidence.

The Act of 1850 is unconstitutional, in that it authorizes cases to be decided wholly on ex parte testimony.

The 4th Section of the act makes it the “duty” of the “court, judge, or commissioner,” to deliver up an alleged fugitive, “upon satisfactory proof being made by deposition or affidavit, in writing, * * or by other satisfactory testimony, * * and with proof also by affidavit of the identity of the person,” &c.

It thus allows the whole proof to be made by “affidavit” alone, which is wholly an ex parte affair. And if this testimony be “satisfactory” to the court, judge, or commissioner, they are authorized to decide the case upon that testimony alone, without giving the defendant any opportunity to confront or cross-examine the witnesses of the claimant, or to offer a particle of evidence in his defence.

The 10th Section of the act is of the same character as the 4th, except that it is worse. It first provides that a claimant—by a wholly ex parte proceeding—may make “satisfactory proof”—to “any court of record, or judge thereof in vacation,” in the “State, Territory, or District,” from which a fugitive is alleged to have escaped—that a person has escaped, and that he owed service or labor to the party claiming him. It then, not merely permits, but imperatively requires, that this ex parte evidence, when a transcript thereof is exhibited in the State where the alleged fugitive is arrested, “shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in the record mentioned.”

It thus absolutely requires, that on the production of certain ex parte evidence by the claimant, the court, judge, or commissioner shall decide these two points—the fact of escape, and that the fugitive owed service or labor to the claimant—against the defendant, without giving him a hearing.

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It then permits the judge to decide the only remaining point, to wit, the identity of the person arrested with the person escaped—upon the same testimony. But it allows him to receive “other and further evidence, if necessary,” on this single point of identity.

Thus this section imperatively prescribes that, at the pleasure of the claimant, certain ex parte testimony “shall be held and taken to be full and conclusive evidence,” on two, out of the three, points involved in the case. And on the only remaining point, it requires “other and further evidence,” only on the condition that it shall be “necessary” in the mind of the judge or commissioner. And if “other and further evidence” be “necessary,” that also may be “either oral, or by affidavit,” which last is necessarily ex parte.

Thus the act authorizes the whole case to be decided wholly on ex parte evidence, if such evidence be “satisfactory” to the commissioner; and, at the option of the claimant, it makes it obligatory upon the commissioner to receive such testimony as “full and conclusive evidence,” on two, out of the only three, points involved in the case.

There is not a syllable in the whole act that suggests, implies, or requires that the individual, whose liberty is in issue, shall be allowed the right to confront or cross-examine a single opposing witness, or even the right to offer a syllable of rebutting testimony in his defence.

Now, I wish it to be understood that I am not about to argue the enormity of such an act, but only its unconstitutionality.

The question involved is, whether Congress have any constitutional power to authorize courts to decide cases, “suits at common law,” or any other cases, on ex parte testimony alone?

The constitution declares that “the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, * * to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States,” &c., &c.

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What then is a “case?” “Case” is a technical term in the law. It is a “suit,” a “controversy” before a judicial tribunal, or umpire. The constitution uses the three terms, “case,” “suit,” and “controversy,” as synonymous with each other. They all imply at least two parties, who are antagonists to each other. There can be no “controversy,” where there is but one party. Nor can there be a “controversy” where but one of the parties is allowed to be heard.

Say the Supreme court, “A case in law or equity consists of the right of one party, as well as of the other.”

Cohens vs. Virginia, 6 Wheaton 379.

What is this “right” which is at the same time “the right of one party, as well as of the other?” It cannot be a right to the thing in controversy; because that can be the right of but one of them. The “right,” therefore, that belongs to “one party as well as the other,” can be nothing less than the equal right of each party to produce all the evidence naturally applicable to sustain his own claim, and defeat that of his adversary; to have that evidence weighed impartially by the tribunal that is to decide upon the facts proved by it; and then to have the law applicable to those facts applied to the determination of the controversy.

It has already been shown that the claim to a fugitive slave, is a “case,” “suit,” and “controversy,” arising under the constitution of the United States; and as such, to use the language of the court, is “within the express delegation of judicial power given by that instrument.”

The question now arises, what is “the judicial power of the United States?”

I answer, it is the power to take judicial cognizance or jurisdiction of, to try, adjudicate, and determine, all “cases,” “suits,” and “controversies, arising under the constitution and laws of the United States,” &c.

The judicial power, therefore, being a power to try cases, necessarily includes a power to determine what evidence is applicable to a case, and to admit, hear, and weigh all the evidence that is applicable to it. A case can be tried only on the evidence Edition: current; Page: [21] presented. In fact, the evidence constitutes the case to be tried. If a part only of the evidence, that is applicable to a case—or that constitutes the case—or that is necessary for the discovery of the truth of the case—be presented, weighed, and tried, the case really in controversy between the parties is not tried, but only a fictitious one, which Congress or the courts have arbitrarily substituted for the true one. If, whenever a case, arising under the constitution or laws of the United States, is instituted by one indivdual against another, Congress have constitutional power to substitute a fictitious case for the real one, and to require that the real one abide the result of the fictitious one, they have power to authorize cases to be tried on ex parte testimony—otherwise not. In what clause of the constitution such a power is granted to Congress, no one, so far as I am aware, has ever deigned to tell us.

No one will deny that the question, what evidence is admissible in a case, or makes part of a case, or is applicable to a case, is, in its nature, a judicial question. And if it be, in its nature, a judicial question, the power to determine it is a part of “the judicial power of the United States,” and consequently is vested solely in the courts. And Congress have clearly as much right to usurp any other “judicial power” whatever, as to usurp the power of deciding what evidence is, and what is not, admissible—or what evidence shall, and what evidence shall not, be admitted.

As a general rule, the decision of these questions, of the admissibility of evidence, is left to the courts. But legislatures are sometimes so ignorant or corrupt as to usurp this part of “the judicial power;” and the courts are always, I believe, ignorant, servile, or corrupt enough to yield to the usurpation.

The simple fact that all questions of the admissibility of evidence are, in their nature, judicial questions, proves that the power of deciding them, is a part of “the judicial power of the United States;” and as all “the judicial power of the United States” is vested in the courts, it necessarily follows that Congress cannot legislate at all in regard to it, either by prescribing what evidence shall, or what shall not, be admitted, in Edition: current; Page: [22] any case whatever. For them to do so is a plain usurpation of “judicial power.”

Among all the enumerated powers, granted to Congress, there is no one that includes, or bears any, the remotest, resemblance to a power to prescribe what evidence shall, and what shall not, be admitted by the courts, in the trial of a case. There is none that bears any resemblance to a power to authorize or require the courts to decide cases on ex parte testimony alone. If a judge were thus to decide a case, of his own will, he would be impeached. The assumption, on the part of Congress, of a power to authorize the courts to do such an act, is a thoroughly barefaced usurpation. If Congress can authorize courts to decide cases, on hearing the testimony on one side only, they have clearly the same right to authorize them to decide them without hearing any evidence at all.