Fugitive Slave Law

We have received copies of a correspondence between Mr. Gibbons, who was of counsel for Garnett, arrested in this city some days since as a fugitive slave, and Judge Grier, of the United States Supreme Court, who sat as Commissioner under the act of 1850, on the hearing of the case. As will be seen by the extracts given below, the interpretation of this law made by Judge Grier is entirely difference from that which is popularly adopted, and, if it shall be maintained by all who have to act under it, will undoubtedly remove much of the odium which now attaches to it. Judge Grier says:

“In the case of Garnett, the warrant issued by the court was founded on the warrant of the alleged owner of the fugitive. But ‘on the trial or hearing’ before the court, after the arrest, this affidavit was not received in evidence, nor did the counsel for the claimant insist that it should be received. The claimant had wholly neglected to make the proper proof before some court or Judge in Maryland to establish the fact that he was the owner of a slave or person held to labor, and what was the name, age, size, and other marks of such person, and that the person so described had escaped. Not having availed himself of the privileges and facilities given him by the act of Congress for this purpose, we decided that he must be bound by the purpose, we decided that he must be bound by the common law rules of evidence, as in other cases, where a title to property has to be established before a court. We refused to receive the parties in interest as witnesses, and wills, and other documents of title, unless properly proved.

“The act contemplates a trial and a decision of the court of Judge, involving questions both of law and fact; and unless the rules of common law, as to evidence, he followed, when not changed by statute, the tribunal would be without rule, governed only by caprice or undefined discretion, which would be the exercise of a tyrannical, not a judicial power. It is the duty of the judge who exercises it to render equal justice both to the claimant and the person claimed. If evidence were heard on one side only, and that, too, without regard to any rule or principle known to the law, gross oppression and wrong would flow from it. Free men and citizens of Pennsylvania might be kidnapped into bondage under forms of law, and by the notion of a legal tribunal sworn to do equal and exact justice to all men. This much-maligned law not only gives a ‘trial’ before a legal tribunal before the claimant be authorized to carry the alleged fugitive out of the State, but it takes away from the prisoner no right which he would have enjoyed before this act of Congress was passed.

“In all cases of extradition the evidence establishing the offence and escape of the persons demanded is usually made in the country from which the person demanded has escaped, and is necessarily ex parte, and [illegible] the chief question to be decided by the tribunal before whom he is brought, previously to making an order for his extradition, is only the question of identity.

The party demanded has a right of course to show that he is not the person described. But, if he be the person described, he has no right to claim a jury trial, as to the question of his guilt, in the country to which he has escaped. The question of identity, and whether the person claimed is such a one as the treaty between the two countries required to be delivered up, has always been tried summarily and without the intervention of a jury. No complaint has ever been made when white men have been sent to Europe, on a demand for their extradition, without giving them a jury trial; and why greater privileges in this matter should be granted to colored persons is not easily perceived. The State of Pennsylvania guarantees a jury trial to her own citizens, or to persons charged with committing an offence within her borders. Fugitives from another State have no such rights. The Government to which the fugitives belong, it is to be presumed, will do justice to its own subjects or citizens, and whether they do so or not is no concern of ours. However individuals may fancy they have a mission to rectify all wrongs on the face of the earth, the State of Pennsylvania does not feel bound to the Quixotic enterprise of avenging the oppression of serfs in Russia or slaves in Georgia. This act of Congress does not require that a judge should, without trial, surrender a citizen of Pennsylvania to a kidnapper. The provision ‘that in no trial or hearing, under this act, shall the testimony of such fugitive be admitted in evidence,” is no more than the enactment of an established principle of the common law that no man shall be witness in his own cause. If this provision were not in the act I would not receive the testimony of the prisoner to prove that he was not the person described, or that he was a free man. It would be a temptation to perjury which no tribunal should permit to be presented to any man.

“No lawyer would urge before a court such an absurd construction of the act of Congress as that it means that no evidence should be heard on the part of the alleged fugitive. If such were the intention of the legislature, it was easy to express it in unequivocal terms. In truth, there is nothing equivocal in the language of the act; it forbids the judge to hear the testimony of the fugitive, but not the testimony of disinterested witnesses. It almost seems that nothing but a desire to render the law odious, for the sake of political agitation, could ever have led to so gross a misconstruction and so gross a libel on our National Legislature.

“It has been objected, also, to this law, that it suspends the habeas corpus act, inasmuch as it enacts that the certificate of the judge or commissioner ‘shall be conclusive of the right of the persons in whose favor granted to remove such fugitive, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.’ But this is a mistake. The truth is that this provision of the law forbidding the testimony of the fugitive to be received, and forbidding interference by other profess after a certificate, is but an enactment of an established principle of the common law, added through extreme caution, but wholly unnecessary.

“‘The writ of habeas corpus is undoubtedly an immediate remedy for every illegal imprisonment; but no imprisonment is illegal when the process is a justification of the officer: and process, whether by writ or warrant, is legal whenever it is not defective in the frame of it, and has issued in the ordinary course of justice from a court or magistrate having jurisdiction of the subject matter.’” –(Commonwealth vs. Lacky, 1 Watts 67.)

A person held as a fugitive under the certificate of a judge or magistrate, under this act, is legally imprisoned under the process ‘from a court or magistrate having jurisdiction,’ and cannot be released by any other court or magistrate on a writ of habeas corpus or homine replegiando. The act of 1793 has no such provision as that which is the subject of complaint in the present case; yet, in the case of Wright vs. Deacon, (5 Sergeant and Rawle, 62,) the Supreme Court of Pennsylvania decided that a certificate under that act was a legal warrant to remove the fugitive to the State of Maryland, and no writ of homine replegiando would lie from a State court to try the question of freedom; and that a writ, issued under such circumstances, was ‘in violation of the constitution of the United States.’”