OCR Text |
Show 858 LIBERTY AND Slu\VERY. llence it would have been well if Mr. Smnncr and the son of Judge Story had looked into this decision again before they proclaimed the opinion that the right of trial by jury is, in such cases, still an open question. Mr. Justice Story himself must, on reflection, have seen that the oft:hand expression attributed to him was erroneous. llis more deliberate opinion is recorded, not only in the case of Prigg, but also Appendix to Congressional Globe, vol. xxii., part 2, p. 1687,) is exceedingly offensive to Mr. Chase, of Ohio; and no wonder, Binco the legislature of. his own State has passed o.lo.w, making it a penitentiary offence in the ma.ster who should thus prosecute his constitutionnl right as declared by this decision. But, in regard to this point, tho Supreme Court of tho United States does not stand alone. Tho Supreme Court of New York, in tho ease of Jack 1.1. Martin, had previously said : "Whether tho owner or agent might have made tho n.rrest in tho first instance without any process, we will not stop to exnmine i authorities of deserved respectability and weight have held the o.ffirmntive. 2 Pick. 11, 5 Berg. & Rawle, 62, and the cnso of Glen v. Hodges, in this court, before referred to, (in 9 Johnson,) seem to countenance the same conclusion. It would indeed nppcar to follow as o. necessary consequence, from tlte undoubted po1ition, t!tat under tlti1 clau1e of t!te Conllil11lion tlte ri(Jllt and title of tlu owner to tlu ltrvice of the 1lave is as entire and ptrfect within tl1e ;'uriAdiction of the State to wMch he has fled as U was in tlte one from wliicll, Itt escaped. Such 1eizure would be at the peril of the party; A.ND IP A FREEMAN WAS TAK.EN, liE WOULD m: ANSWERABLE LIKE ANY OTUER TRESPASSER OB KJDNAI'J'ER." TilE I'UGITIYE SLAVE LAW. 350 in his" Commentaries on the Constitution of the United States." "It is obvious," says he, "that these provisions for the arrest and removal of fugitives of both classes contemplate summary ministerial 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 he made out at his trial, and not upon the preliminary inquiry whether he shall he 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 the cases of fugitive slaves there would seem to be the same necessity of requiring only prima facie proofs of ownership, without putting the party to a formal assertion of his rights by a suit at the common law."* But, since the abolitionists will discuss this point, then let it be considered an open ques- * Story on Constitution, vol. iii., book iii., chap. xl. |