section 6.: The provisions of the act of 1850 requiring the exclusion of certain evidence, are unconstitutional.

Those provisions of the act, which specially require the exclusion of certain testimony, naturally applicable to the case, are unconstitutional for the same reason as are those which purport merely to authorize or allow the decision of the case on ex parte testimony. That reason, as has been already stated in the preceding section, is that such legislation is an usurpation, by Congress, of “the judicial power”—or rather an attempt to control the judicial power—for which no authority is given in the constitution. “The judicial power” being vested in the courts, Congress can of course neither exercise nor control it.

If congress can, by statute, require the exclusion of any testimony whatever, that is naturally applicable to a case, they can require the exclusion of all testimony whatever, and require cases to be decided by the courts, without hearing any evidence at all.

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There are two provisions in the act of 1850, which specially require the exclusion of testimony, on the part of the defendant. The first is the one, (sec. 10), already commented upon, which requires that certain ex parte testimony taken by the claimant, “shall be held and taken to be full and conclusive evidence,” on the two points to which it relates, to wit, the fact of slavery, and the fact of escape. This requirement that this ex parte testimony shall “be held and taken to be full and conclusive evidence” of those two facts, is an express exclusion of all rebutting testimony relative to those facts.

The other provision of this kind, is in the 4th section, in these words.

“In no trial or hearing, under this act, shall the testimony of such alleged fugitive be admitted.”

The act itself admits that the testimony of one of the parties, the claimant, is legitimate evidence—for it permits it to be received, and, if it be “satisfactory” to the court, judge, or commissioner, allows the case to be determined on his testimony alone. Indeed, without the claimant’s own testimony, his case could rarely, if ever, be made out—because he alone could generally know whether he owned the slave, and he alone (except the slave) could know whether the slave escaped, or whether he had permission to go into another state. It is therefore indispensable to the success of these cases generally, that the claimant’s own testimony should be received; and if his testimony be admissible, the testimony of the opposing party must be equally admissible; and for Congress to prohibit its admission is, for the reasons already given, an usurpation of “the judicial power.”*

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