The
provisions of the bill, commonly called the fugitive slave bill, and which
Congress have submitted to the President for his approval and signature, are
not in conflict with the provisions of the
Constitution in relation to the writ of habeas corpus.
The expressions
used in the last clause of the sixth section, that the certificate therein
alluded to "shall prevent all molestation" of the persons to whom
granted, "by any process issued," etc., probably mean only what the
act of 1793 meant by declaring a certificate under that act a sufficient
warrant for the removal of a fugitive; and do not mean a suspension of the writ
of habeas corpus.
There is
nothing in the act inconsistent with the Constitution, nor which is not
necessary to redeem the pledge which it contains, that fugitive slaves shall be
delivered upon the claim of their owners.
ATTORNEY-GENERAL'S Office,
September 18, 1850.
SIR, I have had the honor to receive your note of this date, informing me
that the bill, commonly called the fugitive
slave bill, having passed both houses of Congress, had been submitted to
you for your consideration, approval, and signature, and requesting my opinion
whether the sixth section of that act, and especially the last clause of that
section, conflicts with that provision of the Constitution which declares 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."
It is my clear conviction that there is nothing in the last clause, nor
in any part of the sixth section, nor, indeed, in any of the provisions of the
act, which suspends, or was intended to suspend, the privilege of the writ of
habeas corpus, or is in any manner in conflict with the Constitution.
The Constitution, in the second section of the fourth article, declares
that "no person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be delivered up on
claim of the party to whom such service or labor may be due."
It is well known and admitted, historically and judicially, that this
clause of the Constitution was made for the purpose of securing to the citizens
of the slaveholding States the complete ownership in their slaves, as property,
in any and every State or Territory of the Union into which they might escape.
(Prigg vs. Commonwealth of Pennsylvania, 16 Peters, 539.) It devolved on the
general government, as a solemn duty, to make that security effectual. Their
power was not only clear and full, but, according to the opinion of the court
in the above-cited case, it was exclusive, the States, severally, being under
no obligation, and having no power to make laws or regulations in respect to
the delivery of fugitives. Thus the whole power, and with it the whole duty, of
carrying into effect this important provision of the Constitution, was with
Congress. And, accordingly, soon after the adoption of the Constitution, the
act of the 12th of February, 1793, was passed, and that proving unsatisfactory
and inefficient, by reason (among other causes) of some minor errors in its
details, Congress are now attempting by this bill to discharge a constitutional
obligation, by securing more effectually the delivery of fugitive slaves to
their owners. The sixth, and most material section, in substance declares that
the claimant of the fugitive slave may arrest and carry him before any one of
the officers named and described in the bill; and provides that those officers,
and each of them, shall have judicial power and jurisdiction to hear, examine,
and decide the case in a summary manner, that if, upon such hearing, the
claimant, by the requisite proof, shall establish his claim to the satisfaction
of the tribunal thus constituted, the said tribunal shall give him a
certificate, stating therein the substantial facts of the case, and authorizing
him, with such reasonable force as may be necessary, to take and carry said
fugitive back to the State or Territory whence he or she may have escaped,—and
then, in conclusion, proceeds as follows: "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."
There is nothing in all this that does not seem to me to be consistent
with the Constitution, and necessary, indeed, to redeem the pledge which it
contains, that such fugitives "shall be delivered up on claim" of
their owners.
The Supreme Court of the United States has decided that the owner,
independent of any aid from State or national legislation, may, in virtue of
the Constitution, and his own right of property, seize and recapture his
fugitive slave in whatsoever State he may find him, and carry him back to the
State or Territory from which he escaped. (Prigg vs. Commonwealth of
Pennsylvania, 16 Peters, 539.) This bill, therefore, confers no right on the
owner of the fugitive slave. It only gives him an appointed and peaceable
remedy in place of the more exposed and insecure, out not less lawful mode of
self-redress; and as to the fugitive slave, he has no cause to complain of this
bill,—it adds no coercion to that which his owner himself might, at his own
will, rightfully exercise; and all the proceedings which it institutes are but
so much of orderly, judicial authority interposed between him and his owner,
and consequently of protection to him, and mitigation of the exercise directly
by the owner himself of his personal authority. This is the constitutional and
legal view of the subject, as sanctioned by the decisions of the Supreme Court,
and to that I limit myself.
The act of the 12th of February, 1793, before alluded to, so far as it
respects any constitutional question that can arise out of this bill, is
identical with it. It authorizes the like arrest of the fugitive slave, the
like trial, the like judgment, the like certificate, with the like authority to
the owner, by virtue of that certificate as his warrant, to remove him to the
State or Territory from which he escaped, and the constitutionality of that
act, in all those particulars, has been affirmed by the adjudications of State
tribunals, and of the courts of the United States, without a single dissent, so
far as I know. (Baldwin, C. C. R. 577, 579.)
I conclude, therefore, that so far as the act of the 12th of February,
1793, has been held to be constitutional, this bill must also be so regarded;
and that the custody, restraint, and removal to which the fugitive slave may be
subjected under the provisions of this bill, are all lawful, and that the
certificate to be granted to the owner is to be regarded as the act and
judgment of a judicial tribunal having competent jurisdiction.
With these remarks as to the constitutionality of the general provisions
of the bill, and the consequent legality of the custody and confinement to
which the fugitive slave may be subjected under it, I proceed to a brief
consideration of the more particular question you have propounded in reference
to the writ of habeas corpus, and of the last clause of the sixth section,
above quoted, which gives rise to that question.
My opinion, as before expressed, is that there is nothing in that clause
or section which conflicts with or suspends, or was intended to suspend, the
privilege of the writ of habeas corpus. I think so because the bill says not
one word about that writ; because, by the Constitution, Congress is expressly
forbidden to suspend the privilege of this writ, "unless when in cases of
rebellion or invasion the public safety may require it;" and therefore
such suspension by this act (there being neither rebellion nor invasion) would
be a plain and palpable violation of the Constitution, and no intention to
commit such a violation of the Constitution, of their duty and their oaths, ought
to be imputed to them upon mere constructions and implications; and thirdly,
because there is no incompatibility between these provisions of the bill and
the privilege of the writ of habeas corpus in its utmost constitutional
latitude.
Congress, in the case of fugitive slaves, as in all other cases within
the scope of its constitutional authority, has the unquestionable right to
ordain and prescribe for what causes, to what extent, and in what manner
persons may be taken into custody, detained, or imprisoned. Without this power
they could not fulfill their constitutional trust, nor perform the ordinary and
necessary duties of government. It was never heard that the exercise of that
legislative power was any encroachment upon or suspension of the privilege of
the writ of habeas corpus. It is only by some confusion of ideas that such a
conflict can be supposed to exist. It is not within the province or privilege
of this great writ to loose those whom the law has bound. That would be to put
a writ granted by the law in opposition to the law, to make one part of the law
destructive of another. This writ follows the law and obeys the law. It is
issued, upon proper complaint, to make inquiry into the causes of commitment or
imprisonment, and its sole remedial power and purpose is to deliver the party
from "all manner of illegal confinement." (3 Black. Com. 131.) If
upon application to the court or judge for this writ, or if upon its return it
shall appear that the confinement complained of was lawful, the writ, in the
first instance, would be refused, and in the last the party would be remanded
to his former lawful custody.
The condition of one in custody as a fugitive slave is, under this law,
so far as respects the writ of habeas corpus, precisely the same as that of all
other prisoners under the laws of the United States. The "privilege"
of that writ remains alike to all of them, but to be judged of—granted or
refused, discharged or enforced—by the proper tribunal, according to the
circumstances of each case, and as the commitment and detention may appear to
be legal or illegal.
The whole effect of the law may be thus briefly stated: Congress has
constituted a tribunal with exclusive jurisdiction to determine summarily and
without appeal who are fugitives from service or labor under the second section
of the fourth article of the Constitution, and to whom such service or labor is
due. The judgment of every tribunal of exclusive jurisdiction where no appeal
lies, is, of necessity, conclusive upon every other tribunal; and therefore the
judgment of the tribunal created by this act is conclusive upon all tribunals.
Wherever this judgment is made to appear, it is conclusive of the right of the
owner to retain in his custody the fugitive from his service, and to remove him
back to the place or State from which he escaped. If it is shown upon the
application of the fugitive for a writ of habeas corpus, it prevents the
issuing of the writ; if upon the return, it discharges the writ and restores or
maintains the custody.
This view of the law of this case is fully sustained by the decision of
the Supreme Court of the United States in the case of Tobias Watkins, where the
court refused to discharge upon the ground that he was in custody under the
sentence of a court of competent jurisdiction, and that that judgment was
conclusive upon them. (3 Peters.)
The expressions used in the last clause of the sixth section, that the
certificate therein alluded to "shall prevent all molestation" of the
persons to whom granted "by any process issued," etc., probably mean
only what the act of 1793 meant by declaring a certificate under that act a
sufficient warrant for the removal of a fugitive, and certainly do not mean a
suspension of the habeas corpus. I conclude by repeating my conviction that
there is nothing in the bill in question which conflicts with the Constitution
or suspends, or was intended to suspend, the privilege of the writ of habeas
corpus.
I have the honor to be, very respectfully, sir,
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