."

In accordance with this opinion of the court--delivered by Mr. Justice
Story--Mr. Chief Justice Taney says: the master "has a right, peaceably,
to take possession of him, and carry him away, without any certificate
or warrant from a judge of the District or Circuit Court of the United
States, or from any magistrate of the State; and whosoever resists or
obstructs him is a wrong-doer; and every State law which proposes,
directly or indirectly, to authorize such resistance or obstruction, is
null and void, and affords no justification to the individual or the
officer of the State who acts under it. This right of the master being
given by the Constitution of the United States, neither Congress nor a
State Legislature can by any law or regulation impair it or restrict
it.[224]

Hence it would have been well if Mr. Sumner 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 off-hand expression attributed to him was erroneous. His more
deliberate opinion is recorded, not only in the case of Prigg, but also
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 courts 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 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."[225]

But, since the abolitionists will discuss this point, then let it be
considered an open question, and let them produce their arguments. The
first we shall notice is from Mr. Sumner,