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CHAPTER I.: Unconstitutionality of the Acts of Congress of 1793 and 1850. - Lysander Spooner, A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 
A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 (Boston: Bela Marsh, 1850).
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Unconstitutionality of the Acts of Congress of 1793 and 1850.
Admitting, for the sake of the argument—what is not true in fact—that the words, “person held to service or labor,” are a legal description of a slave, and that the clause of the Constitution in reference to such persons, and the Act of Congress of 1793, and the supplementary Act of 1850, for carrying that clause into effect, authorize the delivery of fugitive slaves to their masters—said acts (considered as one,) are nevertheless unconstitutional, in at least seven particulars, as follows:—
1. They authorize the delivery of the slaves without a trial by jury.
2. The Commissioners appointed by the Act of 1850, are not constitutional tribunals for the adjudication of such cases.
3. The State magistrates, authorized by the Act of 1793, to deliver up fugitives from service or labor, are not constitutional tribunals for that purpose.
4. The Act of 1850 is unconstitutional, in that it authorizes cases to be decided wholly on ex parte testimony.
5. The provisions of the Act of 1850, requiring the exclusion of certain evidence, are unconstitutional.
6. The requirement of the Act of 1850, that the cases be adjudicated “in a summary manner,” is unconstitutional.
7. The prohibition, in the Act of 1850, of the issue of the writ of Habeas Corpus for the relief of those arrested under the act, is unconstitutional.
These several points I propose to establish.
Denial of a Trial by Jury.*
Neither the Act of 1793, nor that of 1850, allows the alleged slave a trial by jury. So far as I am aware, the only argument, worthy of notice, that has ever been offered against the right of an alleged fugitive slave to a trial by jury, is that given by Mr. Webster, in his letter to certain citizens of Newburyport, dated May 15, 1850, as follows:—
“Nothing is more false than that such jury trial is demanded, in cases of this kind, by the constitution, either in its letter or in its spirit. The constitution declares that in all criminal prosecutions, there shall be a trial by jury; the reclaiming of a fugitive slave is not a criminal prosecution.
“The constitution also declares that in suits at common law, the trial by jury shall be preserved; the reclaiming of a fugitive slave is not a suit at the common law; and there is no other clause or sentence in the constitution having the least bearing on the subject.”
In saying that “the reclaiming of a fugitive slave is not a criminal prosecution,” Mr. Webster is, of course, correct. But in saying that “the reclaiming of a fugitive slave is not a suit at the common law,” within the meaning of the constitutional amendment, that secures a jury trial “in suits at common law,” he raises a question, which it will require something more than his simple assertion to settle.
To determine whether the reclaiming of a fugitive slave is a “suit at common law,” within the meaning of the above amendment to the constitution, it is only necessary to define the terms “suit” and “common law,” as used in the amendment, and the term “claim,” as used in that clause of the constitution, which provides that fugitives from service and labor “shall be delivered up on claim of the person to whom such service or labor may be due.”
All these terms have been defined by the Supreme Court of the United States. Their definitions are as follows:
In the case of Prigg vs. Pennsylvania, the court say—
“He (the slave) shall be delivered up on claim of the party to whom such service or labor may be due. * * * A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do, or to forbear to do, some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition was given by Lord Dyer, as cited in Stowell vs. Zouch, Plowden 359; and it is equally applicable to the present case; that ‘a claim is a challenge by a man of the propriety or ownership of a thing which he has not in his possession, but which is wrongfully detained from him.’ The slave is to be delivered up on the claim.”—16 Peters 614-15.
In Cohens vs. Virginia, the court say:
“What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived.’ The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, ‘jus prosequendi in judicio quod alicui debetur,’—(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party sueing claims to obtain something to which he has a right.
“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand.”—6 Wheaton 407-8.
In the case of Parsons vs. Bedford et. al., the court define the term “common law,” with special reference to its meaning in the amendment to the constitution, which secures the right of trial by jury “in suits at common law.” The court say:
“The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared in the third article, ‘that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority, &c., and to all cases of admiralty and maritime jurisprudence. It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article, ‘law;’ not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit.” * * * *
“In a just sense, the amendment, then, may be construed to embrace all suits which are not of equity and admiralty jurisprudence, whatever may be the peculiar form which they may assume to settle legal rights.”—3 Peters, 446.
Such are the definitions given by the Supreme Court of the United States, of the terms “claim,” “suit,” and “common law,” as used in the constitution and amendment. If these definitions are correct, they cover the case of fugitive slaves. If they are not correct, it becomes Mr. Webster to give some reason against them besides his naked assertion, that “the reclaiming of a fugitive slave is not a suit at the common law.”
Mr. Webster is habitually well satisfied with the opinions of the Supreme Court, when they make for slavery. Will he favor the world with his objections to them, when they make for liberty?
Perhaps Mr. Webster will say that, in the case of a fugitive slave, the matter “in controversy,” is not “value”—to be measured by “dollars,” but freedom. But it certainly does not lie in the mouth of the slaveholder, (however it might in the mouth of the slave,) to make this objection—because the slaveholder claims the slave as property—as “value” belonging to himself.
The Commissioners, authorized by the Act of 1850, are not Constitutional Tribunals for the performance of the duties assigned them.
The office of the Commissioners, in delivering up fugitive slaves, is a judicial office. They are to try “suits at common law,” within the meaning of the constitution, as has just been shown. They are to give, not only judgment, but final judgment, in questions both of property, and personal liberty—(of property, on the part of the complainant, and of liberty, on the part of the alleged slave.) Indeed, the Supreme Court have decided that the office of delivering up fugitive slaves is a judicial one. Say they,
“It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property, capable of being recognized and asserted by proceedings before a court of justice, between parties adverse to each other, it 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.”—Prigg vs. Pennsylvania, 16 Peters, 616.
These Commissioners, therefore, are “judges,” within the meaning of that term, as used in the constitution. And being judges, they necessarily come within that clause of the constitution, (Art. 3, Sec. 1,) which provides that “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
The object of this provision of the constitution, in requiring that all “judges” shall receive a fixed salary, or “a compensation, at stated times,” instead of receiving their pay in the shape of fees in each case—thus making its aggregate amount contingent upon the number of cases they may try—was to secure their impartiality and integrity, as between the parties whose causes should come before them. If a judge were to receive his compensation in the shape of fees for each case, he would have a pecuniary inducement to give a case to the plaintiff, without regard to its merits. And for these reasons. Plaintiffs have the privilege of selecting their own tribunals. If a particular judge be known as uniformly or usually giving cases to plaintiffs, he thereby induces plaintiffs to bring their cases before him, in preference to other tribunals. He thus tries a larger number of cases, and of course obtains a larger amount of fees, than he would if he were to decide impartially. He thus induces also the institution of a larger number of suits than would otherwise be instituted, because if plaintiffs are sure, or have a reasonable probability, of gaining their causes, without regard to their merits, they will of course bring many groundless and unjust suits, which otherwise they would not bring.
It is obvious, therefore, that the payment of judges by the way of fees for each case, has a direct tendency to induce corrupt decisions, and destroy impartiality in the administration of justice. And the constitution—by requiring imperatively that judges “shall receive” a fixed salary, or “a compensation at stated times,” has in reality provided that the rights of no man, whether of property or liberty, shall ever be adjudicated by a judge, who is liable to be influenced by the pecuniary temptation to injustice, which is here guarded against.
The legal objection I now make is not that the Commissioners or judges are paid double fees for deciding against liberty, or for deciding in favor of the plaintiffs—(a provision more infamous probably, for the pay of the judiciary, than was ever before placed upon a human statute book)—but it is that they are paid in fees at all; that they receive no “compensation at stated times,” as required by the constitution; that their pay is contingent upon the number of cases they can procure to be brought before them; in other words, contingent upon the inducements, which, by their known practice, they may offer to the claimants of slaves to bring their cases before them.
The argument on this point, then, is, that inasmuch as the constitution imperatively requires that “judges shall receive, at stated times, a compensation for their services,” and inasmuch as the Act of 1850 makes no provision for paying these Commissioners any “compensation at stated times,” they are not constitutional tribunals, and consequently, have no authority to act as judges or commissioners in execution of the law; and their acts and decisions are of necessity binding upon nobody. In short, a Commissioner, instead of being one of the judges of the United States, paid by the United States, is, in law, a mere hired kidnapper, employed and paid by the slave-hunter—and every body has a right to treat him and his decisions accordingly.*
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 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 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.
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 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 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.
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.
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.
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 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 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.
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.
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.”*
The requirement of the act of 1850, that the cases be adjudicated “in a summary manner,” is unconstitutional.
Section 6th of the act makes it the “duty” of the court, judge, or commissioner, “to hear and determine the case of such claimant in a summary manner.”
This determining the case in a summary manner is only another mode of excluding testimony on the part of the defendant. The plaintiff of course prepares his testimony beforehand, and has it ready at the moment the alleged fugitive is arrested. If the case then be tried, without giving the defendant time to procure any testimony, the decision must necessarily be made upon the testimony of the claimant alone. Such is the design of the act, for the defendant being arrested, the act requires that he shall be “taken forthwith before such court, judge, or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner,”—that is, without granting the delay necessary to enable the defendant to obtain testimony for his defence.
The whole object and effect of this provision is to make it necessary for the court to determine the case on the evidence furnished by the plaintiff alone. And the exclusion of all testimony for the defendant, by this “summary” process, is equally unconstitutional with its exclusion in the manner commented on in the last two preceding sections—for the right of a party to be heard in a court of justice, necessarily implies a right to reasonable time in which to procure his testimony.
The suspension of the writ of Habeas Corpus, by the act of 1850, is unconstitutional.
Section 6th of the act provides that “the certificates in this and the first section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the state or territory from which he escaped, and shall prevent all molestation of such person or persons, by any process issued by any court, judge, magistrate, or other person, whomsoever.”
This is a prohibition upon the issue of the writ of habeas corpus, and is a violation of that clause of the constitution, which says that “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.”
In cases where no appeal lies to a superior court, (and in this case no appeal is granted, and the constitution, art. 3, sec. 2, clause 2, does not require an appeal,) the habeas corpus is the only mode of relief for a person deprived of his liberty by any illegal proceeding; and a prohibition upon the use of the habeas corpus for the purpose of inquiring into the proceedings, and determining whether they have been legal, and releasing the prisoner if they have been illegal, is as palpable a violation of the constitution on this point as it is possible to conceive of.
Upon a writ of habeas corpus, it would be the duty of the court to inquire fully into the several questions, whether the person, who had assumed to act as judge, and restrain the prisoner of his liberty, was really a judge, appointed and qualified as the constitution requires? Whether the law, under color of which the man was restrained, was a constitutional one? Whether the prisoner had been allowed a trial by jury? Whether he had been allowed to offer all the testimony, which he had a constitutional right to offer, in his defence. Whether he had had reasonable time granted him, in which to procure testimony? And generally into all questions involving the legality of his restraint; and to set him at liberty, if the restraint should be found to be illegal.
[* ] The argument on this point is substantially the same as one embraced in the Letter of Hon. Horace Mann, published in the Boston Atlas, June 10, 1850. Although the argument implies no merit on my part—it being made up of definitions given by the Supreme Court—it may yet be proper for me—by way of avoiding the appearance of plagiarism—to say that it was published in Burritt’s Christian Citizen of June 8th, 1850, two days before the publication of Mr. Mann’s.
[* ] The Commissioners are probably unconstitutional judicial tribunals for another reason, to wit, that the law, which authorizes their appointment, makes no provision that they “shall hold their offices during good behavior,” as the constitution requires that “judges” shall do. The law says nothing of the tenure, by which they shall hold their offices; it simply provides “That it shall be lawful for the Circuit Court of the United States, to be holden in any district, * * to appoint such and so many discreet persons, in different parts of the district, as such court shall deem necessary, to take acknowledgments of bail and affidavits,” &c.
Stat. 20th Feb., 1812, U. S. Stat. at Large, Vol. 2, p. 678.
I understand the general opinion to be that, under this law, the commissioners are entitled to hold their offices only during the pleasure of the courts that appoint them.
[* ] In truth, “the acts, records, and judicial proceedings” of a State judge, when exercising a judicial authority purporting to be conferred upon him by the United States, are not even the “acts, records, or judicial proceedings” of the United States—for the United States have no constitutional power to confer any such authority upon him—and consequently his acts, in execution of such an authority, are legally nothing more than his private acts as an individual.
[* ] On general principles, the testimony of the parties themselves, in all cases, civil and criminal, is legitimate, and neither Congress nor the courts have any authority to exclude it.
In civil cases the testimony of the parties is legitimate, because they alone know the whole truth, as to the matter in controversy, and it is hardly possible to conceive of a case in which it would not be for the interest of one or the other of the parties to disclose it. If, therefore, the parties themselves are allowed to testify, it is morally certain, as a general thing, that the whole truth will be told. If the parties agree in their testimony, the facts of the case are at once ascertained, and the necessity and expense of further testimony is saved. If they disagree, the testimony of third persons can then be brought in as supplementary to that of the parties; and the presumption must be that it will corroborate the party whose testimony is true. But if the testimony of third persons alone is received, there can be no certainty at all that the whole truth is told, in hardly any conceivable case; and consequently there can be no certainty that the decision corresponds with the real merits of the case.
It is absurd to exclude both the parties, on the ground of interest, for two reasons. 1. Because they have the same interests respectively; their opposing interests therefore exactly balance each other; and they consequently stand on a perfect level with each other in that respect. 2. Because, being parties, their interests are necessarily known to the tribunal that weighs their testimony, and that tribunal will of course make the proper allowance for their interests, and judge of the credibility of their testimony accordingly.
In suits in equity, all courts receive the testimony of the parties themselves; and there is no rational ground whatever for making a distinction, in this respect, between suits in equity, and suits in law. Blackstone says,
“It seems the height of judicial absurdity, that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster Hall, (in the equity courts), and denied on the other, (in the law courts); or that judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examinations read, and to found their decrees upon it.”3 Blackstone, Ch. 28.
In criminal cases, nothing can be more absurd, cruel, or monstrous, nothing more manifestly contrary to all the dictates of humanity, justice, and common sense, than to close the mouth of an accused person, and forbid him to offer any explanation or justification of his conduct, or to give any denial to the testimony brought against him—and thus throw him, for the protection of his life, liberty, and character, upon such evidence of other persons as chance may happen to throw in his way.
No doubt the guilty would generally attempt to hide their guilt by falsehood; but to presume that an accused person will testify falsely, is to presume him guilty before he is heard, which we have no right to do. The law presumes an accused person innocent until he is proved guilty. Consistently with this presumption, the law is bound to presume that he will tell the truth, because, if he be innocent, as the law presumes him to be, the truth would best serve his purpose.
If the principle of shutting the mouth of an accused person, and compelling him to rely for his defence upon such stray evidence as may chance to fall in his way, be a sound one, it should be acted upon always, and everywhere. The father should strike, but never hear, his child. And it should be the same throughout society. A man accused of any thing offensive or injurious to others, should never be allowed, with his own lips, either to deny the act, or justify it.
It is manifest that if such a principle were acted upon in society generally, it would lead to universal war. Yet the principle would be no less absurd or monstrous in society at large, than it is in courts of justice.
The fear of falsehood, which has led to the adoption of this principle, has no justification in practical life; for a guilty man is much more likely to entrap, than to exculpate himself, when he attempts to defend himself by falsehood.