# Unconstitutionality of the Fugitive Act/5

OPINION OF HON. A. D. SMITH,
Associate Justice of the Supreme Court of the State of Wisconsin.
WEDNESDAY, JUNE 7—11 A. M.
On the 27th ult., application was made to me by Sherman M. Booth, the petitioner, for a writ of Habeas Corpus, to be directed to Stephen V. R. Ableman, who it was alledged, restrained the petitioner of his liberty. ​Accompanying the petition was a copy of the process, by virtue of which, it was alledged, the petitioner was held in custody.
This writ purported to be what is commonly called a mittimus, issued by Winfield Smith, Esq. "a Commissioner duly appointed by the District Court of the United States for said district (District of Wisconsin) under and by virtue of the several acts of Congress," and recited that the petitioner was "charged on oath with having, on the 11th day of March, 1854, at the city of Milwaukee, in said County and District, unlawfully aided, assisted and abetted a person named Joshua Glover, held to service or labor in the State of Missouri, under the laws thereof, and being the property of one Benjamin S. Garland, and having escaped therefrom into the State of Wisconsin, to escape from the lawful custody of Charles C. Cotton, a Deputy of the Marshal of the United States for the District of Wisconsin, the said Charles C. Cotton having then and there arrested and taken into custody the said Joshua Glover, by virtue of a warrant issued by the Judge of the United States for the said District pursuant to the provisions of the act of Congress in that case made and provided, approved Sept. 18th, 1850," &c. The writ goes on to recite an examination before the Commissioner, its result in holding the petitioner to bail, the giving of the required bail, his subsequent arrest and surrender by his bail, the order of the Commissioner to enter into recognizance again, his neglect and refusal so to do, and hence the issuing of the writ; and close with the following command: "Now, therefore, you, the said Marshal, are hereby commanded forthwith to convey and deliver into the custody of the keeper of the said common jail, the body of the said Sherman M. Booth, and you, the said keeper of the said common jail, are hereby commanded and required to receive the said Sherman M. Booth into your custody in the said jail, and him there safely keep, until he shall be discharged by due course of law."
In his application or petition, the petitioner alledged the illegality of his imprisonment to consist in the following, viz: That the act of Congress, referred to in the said warrant, is unconstitutional and void; also, that Congress has no constitutional power or authority to punish the offence with which said Booth is charged, and for which he is detained; that the act of Congress of 1850, is in violation of the provisions of compact, unalterable, except by common consent, contained in the Ordinance of 1787, for the government of the Territory northwest of the Ohio River, and that therefore said act is not in force in said State. "And also that it is alledged in said warrant; and also in the complaint on which the same was founded, (all of which appears by said warrant) that the said Joshua Glover was the property of the said Benjamin S. Garland, whereas the said act of Congress, under which said complaint was made, punishes the aiding, &c. in the escape of 'persons held to service or labor under the laws,' &c. and not the aiding in the escape of 'property,' for which reason said warrant is defective in substance and form."
Upon this application, I could not hesitate to issue the writ according to the prayer of the petition. I had hoped indeed, that, inasmuch as at least two opportunities had been presented to the petitioner, since his original arrest, to apply to the Supreme Court in term time for this writ, that he would have done so, had he been disposed to avail himself of its instrumentality. The Court was in session at the time of his arrest, and an adjourned session was held, commencing the 15th day of May, at either of which times the petitioner might have presented his application, and obtained the opinion and judgment of the whole court, and I am at a loss to conceive the motive which may have induced him or his adviseres to forego such opportunities. But I have no right to complain that any citizens calls upon me for the discharge of any duty pertaining to my office. I do not complain. Yet I cannot but feel the immense responsibility thrown upon me alone, and may be pardoned for expressing my regret, that I am deprived of the aid and counsel of my associates, so much better able to cope with the grave and intricate questions involved than I am myself. Whether by design of from necessity this application has been made to me, I meet the emergency with all the anxiety and concern which it cannot fail to excite, and I hope with some share of the firmness which the occasion and the nature of the questions involved imperatively demand.
There was no question pertaining to the subject matter of the application, nor connected with the parties, which approached in the slightest degree to a conflict of jurisdiction between the State and Federal Courts, or the Judges thereof. The warrant, by virtue of which the petitioner was held, was not issued by a Federal Judge or Court, but by a Commissioner of the District Court of the United States. No exclusive or ultimate jurisdiction can be claimed for an officer of this kind. As one of the justices of the highest judicial tribunal of this State, which tribunal represents in that behalf the sovereignty of the State, I could not deny to any citizen or person entitled to the protection of the State, the proper process by which the validity of a warrant issued by such authority, could be examined. Nor can I admit that a Court Commissioner, holding his appointment at the will of the Court, responsible only to such Court, in fact irresponsible and unimpeachable, has the right or the power, or can have the right or the power, to issue any process by which a citizen of the State may be imprisoned, that may not be examined, and its validity tested by the proper judicial authority of the State. Indeed, we may go farther, and say, that as every citizen has a right to call upon the State authority for protection, and as the judicial power is that only to which application can usually be made by the citizen, it is the duty of the judicial officer, when applied to, to see that no citizen is imprisoned within the limits of the State, nor taken beyond its limits, except by proper, legal and constitutional authority. It is not in the power of anybody to divest the State Judiciary of such authority, nor can anybody but the people themselves, absolve the judicial officers of the State from the performance of their duty in this behalf.
It is not necessary here to inquire what would be the force and effect of a warrant like the present one, were it issued by a judicial officer of the United States. I confess, however, that I have never been able to appreciate the liability to, or danger of, or necessity for collision between the judicial and ministerial authority of the States and the United States.
The line of demarcation is not very dim, and a proper regard to the peculiar functions of each class of officers, will render all apprehension on that score, a work of supererogation. But the States will never submit to the assumption, that United States Court Commissioners have the power to hear and determine upon the rights and liberties of their citizens, and issue process to enforce their adjudications, which is beyond the examination or review of the State Judiciary. They will cheerfully submit to the exercise of all power and authority by the Federal Judiciary, which is delegated to that department by the Federal Constitution, but they have a right to insist, and they will insist, that the State Judiciary shall be and remain supreme in all else, and that the functions of the Federal Judiciary within the territory of the States, shall be exercised by the officers designated, or provided for, by the Constitution of the United States, and not be transferred to subordinate and irresponsible functionaries, holding their office at the will of the Federal Courts, doing their duty and obeying their mandates, for which neither the one nore the other is responsible.
Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted, and as rigidly sustained.
It is only by exacting of the Federal Government a rigid conformity to the prescribed limitation of its powers, and by the assertion and exercise on the part of the States of all the powers reserved to them, and a due regard by both to their just and legitimate sphere, that obedience can be rightfully exacted of the citizen, to the authority of either.
Entertaining the opinion that a Commissioner of a United States Court had not rightful authority to imprison a citizen of this State, or any other person entitled to the protection of its laws, by any process which precluded the State authority from inquiring into the proceedings of such Commissioner, and on inspection of the writ, a copy of which was presented with the petition, I could not deny the writ of Habeas Corpus prayed for.
The Marshal to whom the writ was directed, in conformity with the double allegiance which we all owe to the State and to the United States, promptly made return, bringing the body of the petitioner before me, and showing us the cause of his caption and detention, a copy of the mittimus herein before mentioned.
The petitioner demurred to the return of the Marshal, and thus the whole question of the legality of the Commissioner's process, both in respect to its form and substance, and the validity of the law of Congress, for the alledged violation of which the petitioner was arrested, is fairly and fully presented.
The petitioner demands his discharge from imprisonment on two grounds:
1st, Because the law of Congress, approved the 18th of September, 1850, in relation to the extradition of fugitives from service or labor, is unconstitutional; and
​2d, Because the writ is defective.
Had the determination of this mater been placed upon the insufficiency of the writ alone, I should have had little difficulty in arriving at a conclusion, because I entertain no doubt that the writ is so substantially defective, that the discharge of the petitioner must for that cause alone have been ordered. But the petitioner has, thro' his counsel, expressed his desire to waive all objections to the form or substance of the warrant, and to rest the case solely upon his objections to the constitutionality of the law in question.
The Constitution of the United States is the fundamental law of the land. It emanated from the very source of sovereignty as the same is recognized in this country. It is the work of our fathers, but adopted and perpetuated by all the people, and thus becomes our own. It is natural that the citizen should have a more profound regard for the fundamental law of his State or Government, than for a mere act of a legislature, because the former is more directly the work of his own hand. He has, by his vote, mediate or immediate, established it as the great charter of his rights, and by which all his agents or representatives in the conduct of the Government are required to square their actions. By the standard of the Constitution, he has a right to judge of the acts of every officer or body whose existence as such is provided for by it. By the same standard he must regulate his own acts, and to it he may at all times appeal for the protection of his rights secured by it, and for a measured judgment upon his own conduct.
I recognize most fully the right of every citizen to try every enactment of the legislature, every decree or judgment of a court, and every proceeding of the executive or ministerial department, by the written fundamental law of the land. This must be done in a proper and legal manner, in conformity with the rules prescribed by that same law, or in accordance with its provisions; but no law is so sacred, no officer so high, no power so vast, that the line and the plummet of the constitution may not be applied to it. It is the source of all law, the limit of all authority, the primary rule of all conduct, private as well as official, and the citadel of personal security and liberty.
But as was said before, though I recognize the right of every citizen to appeal to the Constitution in a proper manner, (not in any mode which the individual may prescribe for himself.) such appeal should be made in good faith, and not for the mere purpose of experimenting upon the opinions of the judicial officer to whom such application is made. Every citizen has the right to test every law by the Constitution of the State or National Government according to the forms, and through the appropriate tribunals of the country. Every one has a right to resist an unconstitutional enactment of the legislature; but he does so upon his peril, until the conformity or non-conformity of the act with the Constitution is judicially determined. It is unsafe for any person to resist an act of the State or National Legislature, on the ground of its unconstitutionality, unless he is prepared to abide the consequences, in case his judgment should prove to be erroneous. Passive obedience cannot be exacted, nor can private judgment in this behalf become the rule of action.
But I do not admit the right of the citizen to complain to me of illegal imprisonment, and apply for a writ of Habeas Corpus for his discharge therefrom, and then waive or decline his discharge, except upon such grounds only, as he shall see fit to prescribe. While I am willing, faithfully to discharge my duty in every instance when called upon, and to extend the protection of the law to every person entitled to its protection, I do not admit the right of any one to devise a fictitious imprisonment, merely to experiment upon my opinions or research, in regard to particular questions of law, which may chance to be deemed of more or less interest in the community.—The petitioner has claimed that he is imprisoned without the authority of law, and asks my official interposition in his behalf. On the hearing, he sees fit to waive all objection to the form or substance of the warrant by which he is held, and to demand his discharge upon the invalidity of the law by virtue of which the warrant was issued, or not have it at all. I can neither permit nor accept such issue. If he really sought relief from his imprisonment by applying for this writ, he should be willing to enjoy such relief upon any ground which the law would sanction.—If he did not really and in good faith, desire release from imprisonment, but merely resorted to the writ of Habeas Corpus as a device by which to obtain an opinion as to the constitutionality of the Fugitive Slave Act, I feel bound to say that the occasion is not commensurate with the sacred character and beneficent functions of that writ.
I shall take this case, therefore, as the petition and the return to the writ present it for adjudication.
The act of congress, under and by virtue of which the petitioner is arrested, purports to have been enacted in conformity with, and under a power, as is alleged, granted by the third clause of the second section of the fourth article of the Federal Constitution, which is in the following words:
"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 is due."
Either fortunately or unfortunately, we are left for a construction of this portion of the Federal compact, almost exclusively to the meaning to be derived from the words. There was very little debate upon the introduction or adoption of the clause, and but feeble aid is furnished from contemporaneous interpretation, for until a comparatively recent period, it has not become a subject of any very considerable discussion.
Without stopping here to inquire whether the clause in question confers upon the General Government any power of legislation in regard to the subject matter thereof, let us endeavor to arrive at its true intent and meaning, so far as it affects the rights or condition of the class of persons to whom it is supposed especially to refer.
Let it be taken for granted, that this clause was intended to refer exclusively to Fugitive Slaves, of which, I think, the history of its adoption into the Constitution leaves no doubt; the question at once arises, how far, and in what particular, does it affect the persons alluded to in it? 1st. It contemplates the fact that certain persons were or might be held to service or labor, in one or more States, under the laws thereof. 2d. That it was by the laws of such State or States alone, under which such persons could be held to service or labor. 3d. That the laws or regulations of the respective States, under which such persons might be held to service or labor, or discharged therefrom, might be different. 4th. That such persons might escape from one State, in which they were held to labor, under the laws thereof, into another State, in which such persons were held to labor under different laws, or in which they were, by the laws of the State, discharged from service or labor. 5th. That the service or labor here spoken of, is of a kind which is exacted of such persons by law, and not of a kind stipulated for by contract, and hence is in restraint of, and derogatory to human liberty. 6th. That such persons escaping from one State into another, should not be discharged by the laws of the State to which they may have fled, but that the condition of the fugitive should remain the same as it was in the State from which he fled, in case the person to whom he owed the service, should choose to claim him. 7th. That in the event of a claim by the person to whom the fugitive owed the service, under the laws of the State from which he fled, being made, he should be deliverd up, on establishing the fact that the labor or service of the fugitive was due to such claimant.
From this analysis of the clause of the Federal Constitution above quoted, it will be seen that the status of the fugitive is essentially different in this State from his status or condition in the State from which he fled. In the latter, he remained subject to all the disabilities of his class, tho' he may have escaped from the domicil or premises of his master. Here, he is entitled to the full and complete protection of our laws, as much so as any other human being, so long as he is unclaimed. He may sue and be sued; he may acquire and hold property; he is to all intents and purposes, a freeman, until a lawful claim is made for him. And this claim must be made by the person to whom his service or labor is due, under the laws of the State from which he escaped. No one else can interfere with him. If no claim is set up to his service or labor by the person to whom such service or labor is due, there is no power, no authority, nor person on earth that can derive any advantage from his former condition, or assert it to his prejudice. So long as the owner does not choose to assert his claim, the cottage of the fugitive in Wisconsin, is as much his castle; his property, liberty, and person are as much the subject of legal protection, as those of any other person. Our legal tribunals are as open to his complaints or appeals as to those of any other man.—He may never be claimed, and if not, he would remain forever free, and transit freedom to his posterity born on our soil,
​It is apparent, therefore, that the fugitive slave leaves his condition of slavery behind him, and takes with him into this State, only the dread contingency of the assertion of the claim of the person from whose service he has escaped, upon the establishment of which he may be reduced to his former condition.
The act of Congress of 1850, fully recognizes this view of the Constitution, and contemplates the recapture of the fugitive, as dependent entirely on the claim of the master. The sixth section provides that "the person or persons" to whom such service or labor may be due, or his, her, or their agent or attorney duly authorized by power of attorney in writing, acknowledged and certified under the seal of some legal officer or Court of the State or Territory in which the same may be executed, may pursue and claim such fugitive person, &c." No one but the owner, or his agent, or attorney, appointed by writing, may claim him. No one may volunteer to render his neighbor a friendly service, by capturing in his behalf, and returning to him his fugitive. It must be the master's own act and its responsibilities all his own.
This writ simply asserts, as the cause of the petitioner's arrest, that he "aided, abetted and assisted a person named Joshua Glover, held to service or labor in the State of Missouri, under the laws thereof, and being the property of Benammi S. Garland, and having escaped therefrom into the State of Wisconsin to escape from the lawful custody of Charles C. Cotton, a Deputy of the Marshal of the U. S., the said Charles C. Cotton, having then and there arrested and taken into custody, the said Joshua Glover, by virtue of a warrant issued by the Judge of the U. States for the said District pursuant to the provision of the Act of Congress in that case made and provided, approved Sept. 18, 1850."
The material allegations herein contained, are, that Glover was held to service or labor, in the State of Missouri, under the laws thereof, had escaped therefrom, and was the property of Garland. All this may be very true, and yet Garland may never have claimed Glover. Some one else may have caused the arrest without the authority or wish of Garland. There is no allegation that he was claimed by any one, whomsoever; much less that the claim of Garland was interposed, without which, Glover was as free as Garland himself. It is true the writ recites that Glover was in the lawful custody of the Marshal, by virtue of a warrant issued by the District Judge under the provisions of the Act of 1850. But it is to be remarked, that the mere recital, that such custody was lawful, is not sufficient. The lawfulness must affirmatively appear by facts set forth in the warrant. But admitting that Glover was in the lawful custody of the Marshal, it still does not appear that he was in such custody as a fugitive from labor. Though the warrant for his arrest was issued under the Act of 1850, yet it by no means follows that he was arrested as a fugitive.
The petitioner is arrested under that act, and Glover may have been charged with some violation of it for which he was liable to arrest. The gist of the offence with which the petitioner is charged, as described by the act of 1850, is the aiding, abetting or assisting the person so owing labor or service, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid." There certainly is no such charge in the warrant of commitment returned here. There is no averment of a claim by Garland, even admitting that the allegation of property in Garland implies that service or labor was due to him. There is no allegation that Glover was in custody as a fugitive from labor, or that the petitioner aided in his escape from any claimant, his agent or attorney, nor any other person lawfully authorized to hold him as such fugitive.
I have been referred to two or three cases, going to show that strict technical exactness is not required in preliminary warrants. This is undoubtedly the true doctrine.—Where the defendant was charged in the warrant with having committed the crime of larceny, it was held sufficient. (Wart. Prac, 502) But in all these cases, the language used imported a crime, an act Malum in se. In all cases where the offence is merely Malum prohibitum, it must be set out in the warrant substantially in conformity with the statute which creates it.
The offence here charged is peculiarly the creature of the statute. It is not resistance to the Marshal in the execution of his duty; it is not the breaking open the jail; it is not a rescue as known to the common law, but it is intended to be the aiding of a fugitive slave to escape from the service to which he is held. It is a penal statute and must be construed strictly. It is in restraint of freedom and, therefore, every presumption arising under it must be in favor of liberty. It creates a new offence, and adds new and severe penalities, and, therefore, all process and prosecution under it, must be in substantial conformity with its requirements. I do not mean to say that a warrant for arrest or commitment for trial must contain all the particularity of an indictment, but to say what I understand the law to be, that it must contain the substance of the offence charged, as the same is described in the statute. No greater strictness is applied to this warrant, than the law applies to all process of that class; though a much stricter rule might be justified; for this is a "wicked and a cruel" enactment, and those who feel compelled to execute it, may well require of those who demand official service at their hands, that in taking their "pound of flesh" they shall not "shed one drop of Christian blood."
Since the close of the argument upon this case, there has been placed in my hands the act of Congress, approved Feb. 26, 1853, commonly called the Fee Bill. That act provides among the various provisions in regard to the fees of officers, witnesses, &c., as follows: "When two or more charges are, or shall be made, or two or more indictments shall be necessary to arrest and commit him for trial, and it shall be sufficient to state in the write, the name or general character of the offence, or to refer to them in very general terms."
This provision does not change the law; it is only designed as as restraint upon the Clerk or Commissioner, preventing him from issuing a multiplicity of warrants where one would answer, and to guard against unnecessary prolixity, merely for the purpose of swelling the fees of such officers, where he is paid by the folio. What had been the experience of Congress or heads of departments, which suggested this enactment I do not know, but it certainly was never designed to create, nor does its language tend to establish a new rule of law, abrogating the law which requires the charge against the citizen to be plainly set forth in the warrant for this arrest. Here are not two offences charged, and if there were, the rule of law would be the same.
The warrant, a copy of which is returned by the Marshall, as the authority by which the prisoner is held, is clearly, substantially and radically insufficient, and the petitioner is, therefore entitled to a discharge.
And here, perhaps, I might dismiss this case, and avail myself of the defect of the process to escape from the performance of my further duty in the premises; but it is further urged that the Act of Congress of 1850 is unconstitutional and void. I would gladly escape from the responsibility of deciding upon a question so grave. It would be a much more easy and quiet course to stop her, if I could reconcile such a course with my sense of duty. But believing as I do, that every State officer who is required to take an oath to support the Constitution of the United States as well as of his own State, was designedly placed by the Federal Constitution itself, as a sentinel to guard the outposts as well as the citadel of the great principles and rights which it was intended to declare, secure and perpetuate, I cannot shrink from the discharge of the duty devoted upon me. I know well its consequences, and appreciate fully the criticism to which I may be subjected. But I believe most sincerely and solemnly, that the last hope of free, representative and responsible government rests upon the State sovereignties, and the fidelity of State officers to their double allegiance, to the State and Federal Government, and so believing, I cannot hesitate in performing a clear, and indispensable duty.— Seeking and enjoying the quiet and calm so peculiar to the position in which I am placed, I desire to mingle no farther in the political discussions of the times, than the clear suggestions of official obligation require.
But he who takes a solemn oath to support the Constitution of the United States, as well as of the State of Wisconsin, is bound by a double tie, to the Nation and his State. Our system of government is two-fold, and so is our allegiance. Federal officers feel less of this, because their oath binds them only to the Constitution of the United States but State officers have the weight of both resting upon them. To the latter is peculiarly the duty assigned, or rather upon the latter, of necessity, does the obligation rest, of ascertaining clearly, and of asserting firmly, the peculiar powers of both governments, as circumscribed by the fundamental law of each. To yield a cheerful acquiescence in, and support to, every power constitutionally exercised by the Federal Government, is the sworn duty of every State officer; but it is equally his duty to interpose a resistance, to the extent of their respective powers, to every assumption of power on the part of the General ​Government, which is not expressly granted or necessarily implied in the Federal Constitution
Nor can I yield to the doctrine early broached, but as early repudiated, that any one department of the govern. meat is constituted the final and exclusive judge of its own delegated powers. No such tribunal has been erected by the fundamental law. The. judicial department of the Federal Government is the creature, by compact, of the several States as sovereignties. That department can exercise no power not delegated to it. All power not delegated and not prohibited to the States, the States have expressly reserved to themselves and the people. To admit that the Federal Judiciary is the sole anti exclusive judge of its own powers, and the extent of the authority delegated, is virtually to admit that the same unlimited power may be exercised by every other department of the general government both legislative and executive, because each is independent of, and co-ordinate with the other. Neither has any power but such as the Starers have delegated, and all power not delegated, remains with the States and the people thereof. In view of the vastly increasing power of the Federal Government, and the relatively diminishing importance of the State sovereignties respectively, the ty of the latter to, watch closely and resist firmly, every encroachment of the former, becomes every day more and more imperative, and the official oath of the functionaries of the States becomes more and more significant. As the power of the Federal Government depends solely upon what the Sates have granted, expressly or by implication, and as no common. judge has been provided for, to determine when the one or the other shall have proved unfaithful to the compact, the solemn pledge of faith exacted from both, has been deemed an effectual guaranty, and a frequent recurrence to the fundamental principles on which our government is organized, a sufficient stimulus to every public officer and to the people at large, both to yield and exact a perfect conformity. But I solemnly believe that the last hope of free representative fedreative government rests with the States. Increase of influence and patronage on the part of the Federal Government, naturally leads to consolidation, consolidation to despotism. and ultimate anarchy, dissolution, and all its attendant evils.
If the sovereignty of the States is destined to be swallowed up hy the Federal Government, if consolidation is to supplant federation, and the General Government to become the sole judge of its own powers, regardless the solemn compact by which it was brought into existence, and the source of its own vitality, as an humble officer of one of the States, bound to regard the just rights and powers, both of the Union and the States, I want my skirts to be clear, and that posterity may not lay the catastrophe to my charge. I am truly thankful for the same feeling of conscientious firmness on entering upon he discharge of the duty before me, as would be required in ease of direct invasion, open rebellion, or palpable treason against our common country.
Without the States there can be no Union. The abrogation of State, sovereignty is not a dissolution of the Union, but an absorption of its elements. He is the true man, the faithful officer, who is ready to assert and guard every jot of power rightfully belonging to each, and to resist. the slightest encroachment or assumption of power on the part of either.
The Constitution of the United States is a peculiar instrument, and it has brought into existence and operation a peculiar system of government. But little, if any, aid is furnished in its construction by analogy. It is not merely a grant of powers. It not only confers powers upon the Federal Government, but it guaranties rights to the States and to the citizens. It was not designed merely to provide a General Government for all the States, but to provide security and protection for the States and people who are parties to the compact by which it is created.Not only did it confer certain powers upon the General Government, but it imposed solemn duties upon the Government; thereby created, and upon the States who were its creators. More than this, it solemnly enjoined upon both the State and General Governments, the exercise of certain powers and duties, and the abstaining by ouch from the exercise of powers and functions exclusively pertaining to either.
It is an instrument of grants and covenants. Somewhat like an indenture of conveyance, it contains not only grants of powers, but covenants for the faithful observance of the stipulations therein contained. It creates three distinct departments of government, the executive, legislative and judicial, and grants to each, the powers which it was designed that they shall respectively exercise; all those powers not granted or prohibited to the States, it especially reserved to the States and the people. In addition to this the States, the sole parties to the instrument, by it, solemnly and mutually engaged that they would do certain things, and that certain things they would not do, and that certain things should not be done, either by the government of the Union, of of the States. The language of the Constitution is so peculiar, that the distinction between power to be conferred upon the Government about to be created, and covenants entered into between the parties, as States is obvious at a glance. Congress my exercise all the legislative power granted in the Constitution, but no other, because all other's are especially reserved to the States and the people. In the same article which grants the legislative powers to Congress and enumerates and defines them, is contained also a prohibitory covenant or compact, by which the States have agreed not to do certain things, which before as sovereignties, they had an undoubted-right to do. "No state shall grant letters of Marque and reprisal, coin money, emit bills of credit, make anything but gold and silver coin a legal tender, pass any bills of attainder, ex post facto law or any law impairing the obligation of contracts," &c.
Now suppose, in violation of this compact, any State should do any of the things herein prohibited. Is it pretended that Congress has the right to make such acts on the part of the officers of the State, penal? Or by legislation call such offending State to account? Exclude from the Union? Expel representatives from their: seats? Arrest its executive, its legislators and judges, and imprison them The acts of such State would be simply void; and it would be the duty of all courts, both Federal and State, so to declare them. They would afford no, protection to any person or officer acting under: them, not because Congress has any legislative power to denounce or abrogate them but because they are in violation of the fundamental law.
8o, also, in the same section, are contained sundry prohibitions upon the United States, among which is the following: "The privilege of the Writ of Habeaus Corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Suppose in a time of profound peace and quiet, the Federal Government should pass a law suspending the privileges of this writ. Would the State Government have the power to call to account the Federal Officers who had violated the compact in this behalf? The legislators who passed, and the executive who approved it? Not at all. Such an act of Congress would simply be void, and it would be the duty of every State and Federal Court so to pronounce it, and it would afford no protection any officer, State or Federal, for refusing to obey such orbit.
I mention the illustrations to show that a great portion of our Federal Constitution rests in compact, while still another portion rests in grant. Where powers are granted, they are to be exercised; where rights rest in compact, they have still the three of law; but the Federal Government has no power to legislate upon them—they are to be obeyed and enhanced by the parties to the compact, the States themselves.
I come now to consider the 4th article of the Federal Constitution. The first section provides that, "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of, every other State," &c. The first appearance of the various provisions of this article, [ except that in relation to fugitives from labor] in the National Convention, was in the "Plan of a Federal Constitution"— submitted by Charles Pinckney, of South Carolina, May, 1787.—2 Mad. Pap.
That plan contained no reference fugitives from labor. Various plans were submitted, and referred, proposition made and adopted or rejected, when, on the 25th day of July, 5787, a Committee of Detail was appointed, consisting of seven members, of which Mr. Rutledge, of S.C., was chairman, "to report a Constitution conformable to the resolutions passed by the Convention."—2 Mad. Pap., 1197
On the 6th day of August, Mr. Rutledge, from the Committee of Detail,made a report. In that report the several sections now contained in the 4th article, (except the clause in relation to fugitives from labor, which had not yet been thought of,) followed each other, and the article in regard to records as yet stopped, with the mere assertion of the covenant. that foil faith. &c., should be given to them; no power was given Congress over the mater as yet.
The first assertion that appears in regard to fugitives from labor; was made on-the 28thh day of August, 1787 when article 15,, reported by the committee of detail, ​was taken up. This article provided for the surrender of fugitives from justice.
"Mr Butler and Mr. Pinckney, of South Carolina,moved to require Fugitive Slaves and servants to be delivered up like criminals.
"Mr. Sherman saw no more propriety n the public seizing and surrendering a slave or servant than a horse.
"Mr. Butler withdrew his proposition, in order that some particular provision might be made apart from this article."—Mad. Pap., 1447-'8.
On the 29th of August, the provision in regard to Public Acts and cords, came under consideration, when various propositions of amendment were made, and were finally referred to a committee, of which Mr. Rutledge was chairman. On the 1st of September, the article, among other matters, was reported back, and now, for the first time, was incorporated in it, a power on the part of Congress, to legislate upon the subject. Dr. Johnson, of Conn., objected to the grant of such power, because it would authorize the General Legislature to declare the effect of the legislative acts of one State in another State, and Mr. Randolph objected that it might enable the Government to usurp all State powers. After some amendments, the report was agreed to, an thus, in addition to the compact, by which full faith and credit were covenanted to be given to the public acts, records, &c., of one State by every other State, Congress was granted the "power prescribe, by general laws, the manner of proving them, and the effect thereof."
This history is important, as it not only justifies and requires a distinction to be taken between grants of power and articles of compact, but it clearly demonstrates that the Convention all along discriminated between grants of power to the government and articles of compact between the States, and as extremely jealous and cautions in making such grants, and only did so when it was deemed absolutely necessary.
Having now traced through this compact, and discovered the time and manner when it became coupled with a power, let us trace along its neighbor in regard to the reclaiming of fugitive slaves, and discover, if we can, the time and manner in which it shall be coupled with a grant of power to Congress, to secure its efficacy by legislation. We have seen that the first suggestion in regard to the subject, was on the 28th day of August, when Mr. Pinckney and Mr. Butler moved to connect it with the surrender of fugitives from justice, but withdrew the proposition, for the purpose of makin a separate provision.—On the 29th day of August, Mr. Butler offered such provision in these words:
"If any person, bound to service or labor in any of the United State shall escape into another State, he or she shall not be discharged from such service or labor in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor." "Which was agreed to nem con."
Here we have all the discussion upon the subject.—Plan after plan for the organization of the government was made and presented, resolution upon resolution offerred and discussed embracing the whole ground of Federal and Sate rights end powers, without one word being mentioned about fugitive slaves; and when it did occur to the minds of some members, suggested unquestionably by the clause in regard to fugitives from justice, it is quietly agreed that the States would deliver up such fugitives from labor. No power was asked for the Federal government to seize them; no such power was dreamed of; the proposition that the States should respectively deliver them up was acquiesced in without any dissent.—Yet we are told: arguendo, by judicial authority, that without such a clause, the Union could not have been formed, and that this provision was one of the essential compromises between the South and the North. In point fact, it did not enter in the slightest degree into the Compromises between the North and the South. I have had time and opportunity to examine the debates in the conventions for the adoption of the Constitution of only the States of North Carolina and South Carolina. In the former, the whole of article 4 was read, and though the grants of power, as contradistinguished from mere compact, were scrutinized closely, no objection was made to the absence of such grant, but the article was acquiesced in, with only a few words of explanation from Mr. Iredell, who stated that the "Northern delegates, owing to their particular scruples on the subject of Slavery, did not choose to have the word slave to be mentioned, but that was their meaning.": In the South Carolina convention, I have been unable to find a word of comment on the subject. In Virginia, it was discussed by Messrs. Madison and Randolph, who never claimed for it the character of a power delegated to the National Government. It is nowhere mentioned as entering into the compromises of the Constitution. How, then, can any one say, that without this provision, the Union could not have been formed?—And yet such assertion, contradicted by the truth of history, is made the pretext for the exercise of powers by the General Government, that could not stand for a single Government upon a similar basis, in respect to any other subject matter.
We have seen how the power of legislation was granted to Congress in respect to public records, &c. We have seen that no such power is granted in respect to the surrender of fugitives from labor, and that it was not even asked for; and from the known temper and scruples of the National Convention, we may safely affirm, that had it been asked for it would not have been granted, and had it been granted, no Union could have been formed upon such a basis. The history of the times fully justifies this conclusion. Can it be supposed for moment, that had the framers of the Constitution imagined, that under this provision the Federal Government would assume to override the State authorities, appoint subordinate tribunals in every county in every State, invested with jurisdiction beyond the reach or inquiry of the State Judiciary, to multiply executive officers ad infinitum, wholly independent of, and irresponsible to the police regulations of the State, and that the whole army and navy of the Union could be sent into a State, without the request and against the remonstrance of the Legislature thereof: nay, that even under its operation the efficacy of the Writ of Habeas Corpus could be destroyed, if the privileges thereof were not wholly suspended; if the members of the Convention had dreamed that they were incorporating such a power into the Constitution, does any one believe that it would have been adopted without opposition and without debate? And if these results had suggested themselves to the States on its adoption, would it have been passed by them, sub sliento, jealous as they were of State Rights and State, Sovereignty? The idea is preposterous. The Union would never have been formed upon such a basis.
This clause in regard to public records forms one section by itself with its grant of power added upon full consideration. The 2d section of the same article contains three clauses, but all grouped and numbered together.
"The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States."
"A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand on the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."
"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 labor or service may be due."
Here is the whole of the section, without one word of grant or one word from which a grant may be inferred or implied. Congress has the same power to legislate in regard to, fugitives from justice or labor. But it may be asked, how ore the rights here stipulated and guaranteed, to be enforced? I answer that every State officer, executive, legislative and judicial, who takes an oath to support. the Constitution of the United States, is bound to provide for, and aid in their enforcement, according to the true intent and meaning of the Constitution. But what if one or more States should refuse to perform their duty, and its officers violate their oaths and repudiate the compact? This question is answered by asking another, What if Congress should declare a single violation of one of its laws treason, and that a conviction thereof should work corruption of blood and forfeiture of estate beyond the life of the person attainted, and the judicial department should pronounce it valid, and the executive attempt to enforce it? The simple answer is, that when the State and Federal officers become so regardless of their oath and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a wilful departure from the fundamental law of its organization, and the people would be absolved from their allegiance to it. I do not mean to say that every minor, or unintentional departure from the Constitution must work such disastrous results. On the part of the States and people there is a fixed attachment. to the Constitution, and when its provisions are violated, or its restraints overleaped, discussion ensues, and the ​government is brought back to the constitutional tack; but I repudiate the degrading insinuation that State officers are less faithful to the Constitution, than Federal officers. On the contrary, from the very fact that upon them is devolved the duty and responsibility of guarding the rights and sovereignty of the States under the compact of the Union, they must necessarily be more watchful of the exercise or assumption of power, on the part of the States respectively, and the general government, than the Federal officers would naturally be.
It may be again repeated, and cannot be repeated too often, that upon the States rests the immense responsibility of preserving not only their own sovereignty, but the just constitutional powers of the general government Let it also be remembered that the States and their civil functionaries are as essential to the existence and operation of the government of the Union, as are the peculiar officers of the latter. Each and all are parts of a united whole, and all are bound by the most solemn ties of fidelity to all and each.
What would be thought by the people of this country, should Congress pass a law to carry into effect that clause of the 4th article in regard to citizenship? And declare pains and penalties against any State functionary who Should fail to comply? What would be thought if Congress should declare it a penitentiary offence, for any executive of a State to refuse to surrender a fugitive from justice? What State would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law, or what Federal court sume to compel his obedience by mandamus? And yet the assumption of power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground. A bare statement of the proposition assumed, is its most effectual refutation.
The law of 1793 was in fact but little, if any more than organizing the State authorities, for the accomplishment of the constitutional duties devolved upon them. For that very reason it passed without scrutiny, and for a long time was obeyed without question. It was practically nothing more than the, Sates themselves carrying out the constitutional compact. Not until it began to be required that, the States should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early congress, and was signed by the Father of his country, and was acquiesced in by the States and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest ears of the Republic. So it must always be. But time, discussion and experience have heretofore proved adequate correctives. So may they ever prove. Added to these, State sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.
To my mind, therefore, it is apparent that Congress has no constitutional power to legislate on this subject. It is equally apparent, that the several States can pass no laws, nor adopt any regulations, by which the fugitive may be discharged from service. All such laws and regulations must be declared void whenever they are brought.to the test of judicial scrutiny, State or National. It is equally apparent, that it is the duty of the respective States to make laws and regulations, for the faithful observance of this compact. They have generally done so, and doubtless would have continued to do so, but for the decision of the United States Supreme Court, in the case of Prigg vs. Commonwealth of Penn. It is still their duty so to do.
Again, it is to my mind apparent, that the provision of the Constitution in regard to fugitives from labor or service, contemplates a judicial determination of the awfulness of the claim which may be made.
Mr. Butler, of South Carolina, who reported the clause for the first time, Aug. 29th, 17S7, framed its conclusion as follows: '"but shall be delivered up to the person JUSTLY claiming their service or labor." How was the justice of the claim to be ascertained? Who were to determine it? Fugitives were not to be discharged in consequence of any law or regulation of the rates to which they may have fled. Not discharged by whom? The federal government? No, but by the States, in consequence, or by virtue of any law or regulation therein.—"But shall be delivered up." By whom? Evidently by the same power which had covenanted not to discharge them. Shall be delivered up by the States, not seized by the federal government.
The clause, as finally adopted, reads—" but shall be delivered up on claim of the party to whom such service or labor is DUE." Here is a fact to be ascertained, before the fugitive can be legally delivered up, viz: that his service or labor is really due to the party who claims him.—How is the fact to be ascertained? A claim is set up to the service of a person. He who makes the claim is denominated by the constitution, a party. The claimant one party, the person who resists the claim is another party. If he really owes the service according to the laws of the State from which he is alleged to have escaped, he must be delivered up. If the claim is unfounded he cannot be delivered up. The constitution itself has made up the issue and arrange. the parties to it. Can any proposition be plainer than that here is suspended a legal right upon an issue of fact, which can only be determined by the constitutional judicial tribunals of the country? It bears no analogy to the extradition of fugitives from justice. In the latter case, no issue is presented by the constitution; judicial proceedings have already been commenced, and this is but a species of process to bring the defendant into court. No claim is to be determined. He is to be delivered up from the mere fact that he is charged to be removed to the STATE demanding him for trial.—He is placed in the custody, and under the protection of the law, in the regular course of judicial proceedings.—But in the former case there can be no delivery until the claim is tried and determined aid then the fugitive is delivered, not into the custody of the law, but into the possession and control of the party who has established his claim; not to be removed to another State or tribunal for trial, with the shield of the law over him, but to be reduced, without further process or trial, to absolute subjection, to be taken whithersoever the claimant may desire. In one case, the proceedings are commenced and terminated where the claim is made; in the other the suit is commenced where the offence. is committed, and the law sends out its process to bring the defendant to meet the issue. While that process is being served, thro' all its mutations, he is as much under the protection of the law as he who executes it, and, in its eye, both are equal.
Here there is a fact, an issue, to be judicially determined, before a right can be enforced. What authority shall determine it? Clearly the authority of the State, whose duty it is to deliver up the fugitive, when the fact is determined. Until the issue which the constitution itself creates, is decided, the person is entitled to the protection of the laws of the Sate. When the issue is determined against the fugitive, then the constitutional compact rises above the laws and regulations of the State, and to the former the latter must yield.
To my mind this seems very clear and simple. The whole proceeding is clearly a judicial one, and I will not stop here to demonstrate what, from the preceding remarks, appears so obvious. The law of 1850, by providing for a trial of the constitutional issue, between the parties designated thereby, by officers not recognized by any constitution, State or national, is Unconstitutional and void.
It has been already said, that until the claim of the owner be interposed, the fugitive in this State is, to all intents and purposes, a free man.
The interposition of a claim. by legal process, is the commencement of a suit. "A suit is the prosecution of some claim, demand, or request." 6 Wheat. 407. The trial of such claim is the trial of a suit. Therefore, the trial thereof must not only be had before a judicial tribunal, but whether proceedings be commenced by the fugitive to resist the claim of the claimant, or by the claimant to enforce and establish it, it would seem that either party would be entitled to a jury. It is no answer to this position to say that neither the States nor the General Government have provided the means for such a mode of trial. The constitutional right of the party remains the same. The late organization of our county courts failed to provide a trial by a constitutional jury, yet the supreme court held that the parties were nevertheless entitled to den.and it. If provision is not made for such a trial, it the duty of the proper authority to make it. Nor is it any answer to this position to say that the proceeding to reclaim and re-possess a fugitive from service, is not a "suit at common law." This question is already settled. It has'been judicially determined that the term "common law" was used in the Constitution in contradistinction to suits in admiralty or equity. Were it otherwise, Congress need only to change the common law form of procedure, to nullify the right of trial by jury in all cases.—See Story Com. 645, et seq.; 3 Pet. 446.
Mr. Justice Story says, "in just sense the ​amendment (amendment 7) may well be construed to embrace all suits which are not of equity admiralty jurisdiction. whatever may be the peculiar form which they may assume to settle legal rights." We have already seen that the legal right of the claim must be settled before a fugitive from labor can be delivered up. We have already seen that a suit is hold to be "the prosecution, of some claim, demand or request." The conclusion seems to be irresistible, therefore, that the prosecution of the claim to a fugitive from labor, or resistance to such claim by legal proceedings on the part of the fugitive, is a suit, nor in equity or admiralty, and hence at common law, within the purview of the Constitution. Of course, I do not pretend to say that such a proceeding is technically a suit at common law: nor is a proceeding by foreign attachment. and many other proceedings which are held to be embraced by the jury provision of the Constitution Authorities might be multiplied on this subject, were it necessary.
Again it is said that the constitution evidently contemplates a summary mode of proceeding in the case of a fugitive from labor. Where is he evidence of it? Nothing of the kind is found in the history of the provision nor in its pathway to the constitution, Nothing of the kind is apparent from the language used: for it distinctly imports a trial of the claim, and a determination of the fact that labor or service is due to the claimant before a delivery can be made. When the evidence of such intention is furnished, there will be time enough to trample, down all the forms of law, and set at naught every settied rule of construction. But, admit the fact. A provision may be made for obtaining a jury in a summary maner, as is sometimes done for the trial of the right of proprty, seized by attachment. But I can pursue this subject no further.
Again, a constitution provides that no person shall be deprived of life, liberty or property, without due process of law, This last phrase has a distinct technical meaning, viz.: regular judicial proceedings, according to the course of the common law, or by a regular suit, common need and prosecuted according to the forms of law. An essential requisite is due process to bring the party into court. It is in accordance with the first principles of natural law— Every person is entitled to his "day in court," to be legally notified of the proceedings taken against him, and duly summoned to defend. The passing judgement upon any person without his "day in court," without due process or its equivalent, is contrary to the law of nature, and of the civilized world, and without the express guaranty of the constitution, it would be implied as a fundamental condition of all civil government. But the 16th section of the act of 1850, expressly nullifies this provision of the constitution. It provides that the claimant may go before any court of record, or judge in vacation, and without process, make proof of the escape and the owing of service or labor; whereupon record is made of the matters proved, and a general description of the person alleged to have escaped; a transcript of such record made out and attested by the clerk, with the seal of the court, being exhibited to the judge or commissioner, must be taken and held to be conclusive evidence of the fact of cape, and that service or labor is due to the party mentioned in the record, and may be held sufficient evidence of the identity of the person escaping.
Here is, a palpable violation of the constitution. Can that be said to be by due process of law, which is without process altogether? Here the status, or condition of the person is instantly changed, in his absence, without process, without notice, without opportunity to meet or examine the witnesses against him,. or rebut their testimony. A record is made which is conclusive against him "in any State or Territory in which he may be found" It is mot a process to bring the person before the court in which the record is made up, but it is, to all intents and purposes, a judgment of the court or judge, which commits the person absolutely to the control ans possession of the claimant, to be taken whithersoever he pleases, robe dragged from a State where the legal presumption is favor of his freedom, to any State or Territory where the legal presumption is against his freedom.
Is not this depriving a person of liberty without due process of law? Other Courts and other Judges may pronounce this provision of the act of 1850 to be in conformity with that provision of the Constitution which deeclares that " no person shall be deprived of life, liberty or property, without due process of law," but while I have a mind to reason and a conscience to dictate me, and an oath to support the Constitution of the United States resting upon my soul, I cannot so declare it, and for the price of worlds I will not.
Upon this branch of that act I am not aware that there has been any adjudication. Certainly here has been none that can be claimed as authority here The same may be and in regard to the trial by Jury. There are other points equally fatal to this act when tested by the Constitution, but I have not time nor inclination now to discuss them.
I ought not to dismiss the consideration of this question without particularly adverting to the case of Prigg vs The Commonwealth of Penn., 16 Peter's Rep. 540. The opinions in the other cases rated are so conflicting, casual, or incidental as to be of so force and of the case of Priffg vs. Penn., it may be justly remarked that the discrepancy of opinion among the members of the Court was so wide and fundamental, as greatly to impair the authority of that decision. It arms the constitutionality the act of 1793, upon contemporaneous exposition, in one respect, and expressly decries the same rule in another, for it pronounces the act constitutional in part, and unconstitutional in another part. Whatever of authority may attach to it in consequence of the character and eminenece of the men who passed it, and of him who signed it. is effectually counteracted by the decision of the court that in one part of it, at least, the constitution was violated.— Contemporaneous construction confers the power of legislation and execution upon the States as well as Congress; for, long before Congress assumed to act upon the subject the State Legislatures had passed laws in fidelity to the compact, in most of which some of the framers of the Constitution had seats, and all of the slave States, and all or nearly all the free States continued to exercise the power up to a very recent period.
Contemporaneous history,contemporaneous exposition, early and long continued, acquiescence, all go to show the interpretation given to this provision of the Constitution by the States and the people. The slave States passed acts to execute the compact. The fee States did the same. The action of the several States, or many of them, shows conclusively that they interpreted the provision as a compact merely addressed to the good faith of the States. The slave States appealed to the free States for legislative action to carry into effect this provision of the Federal Constitution, and demanded of the latter the stern. exercise of a power which it is now sought to wrest from them. In 1826, the State of Maryland appointed commissioners to attend upon the session of the Legislature of Pennsylvania and induce the latter to pass an act to facilitate the reclamation of fugitive slaves. Their mission was successful. Pennsylvania yielded to the solicitations of Maryland's commissioners. and passed the act of 1826, which was afterwards declared void by the Supreme Court of the United States in Prigg vs. Pennsylvania, at the suit of' Maryland. In 1838 or 1837, similar commissioners were appointed by the State of Kentucky to the State of Ohio whose mission resulted in the passage of most stringent fugitive act by the Legislature of Ohio. So. also, about the same time, in regard to Indiana, and I be live Illinois. Up to 1837, the States esteemed it their duty, and Slave States demanded its performance, to provide by law, for the execution and faithful observance of this compact. All seemed to regard it as a compact and nothing else; blinding, it is true, and operative as law equally upon all, but still a compact and a compact only.
Again, it is respectfully suggested, that the whole argument of Mr. Justice Story is based upon what is sometimes called the petitio principii. He assumes that the Constitution makes it the duty of the Federal Government to enforce the right of the owner secured by the compact, and then inters that it must necessarily have the power. and then. if Congress has it, the States cannot have it.
All admit that there is no express power in the Constitution to legislate upon this subject, but it is claimed to be necessarily implied, as incidental to the grant of judicial power. The reclamation of a fugitive is first decided to be a "case" arising under the constitution of the United States and hence within the judicial power. But this mode of implying powers can never be sustained. The judicial power is extended in several respects beyond the legislative power. The judicial has jurisdiction in cases arising between citizens of different States. A citizen of New York may sue a citizen of Wisconsin, upon a promissory note, bill of exchange, covenants in a deed in partitions of real estate, or even in ejectment for the! o session or title to lands. If a power of legislation may therefore be grafted by implication upon a judicial power, Congress may assume the whole power of legislation over these subjects in the respective States, an ​blow, the complete prostration and over;brow of the State sovereignty. Other illustrations might be given to illustrate the danger of engrafing a legislative power upon judicial, by implication. This was tried at an early day, and by the same course of reasoning, common law jurisdiction was claimed for the courts of the United States, and power of legislation over all common law subjects claimed by implication in Con2ress. The alien and sedition laws were chiefly defended on these grounds.
On the contrary, Chief Justice Taney, in his dissenting opinion, though he admits the right of Congress to legislate, but does not argue itn thinks the compact peculiarly enjoins the duty upon the States.
Again, this case explicitly decides the claim of the owner to a fugitive slave to be a "case" within the meaning on the Constitution; hence it is a suit, not in admiralty, or equity, and hence at common law within the meaning the Constitution. It also decides the determination of claim to be a judicial proceeding, and bases the power of the federal government in the premises, upon the grant of judicial power, and the power of legislation is assumed to be incidental to it. All these paints, which are held to be res adjudicata, strike at the very vitality of the act of 1850 which attempts to confer such judicial power upon commissioners. Time will not permit a further review of this case. In my judgment, the opinion of the Chief Justice completely overthrows that of the Court, and so far as he attempts to argue his points, beyond doubt or controversy establishes the doctrine here contended for.
In view of the dissentient opinions of the members of the Supreme Beuch, in view of the discrepancy of opinion which has characterized all other decisions wherein the question has been raised and argued; in view of the fugitive character of the power here claimed by Congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, flattering now around the implication, then round an incident to find whereon it may rest is foot; in view of the alarm which has seized upon many of the State in consequence of the enormous power which it has called upon Congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the States and upon the great principles of human freedom; in view of all this, are are not justified in asking of the Supreme Court of the United States to review their decision as the majority pronounced it in the case of Prigg vs. Commonwealth of Penn
If after all, the principles of that decision shall be reaffirmed, there still remain fie great questions of trial by jury, the unauthorized delegation of judicial power, the exparte proceedings, without process, which change the status of the person whose liberty is attacked, and some others, untouched and undetermined.
We thus find ourselves without any authoritative judicial guide in relation to the act of 1850. The fundamental questions here raised, have, some of them, been controverted for some years, and those which it was the design to settle in the case just quoted, remain yet as fruitful subjects of bitter discussion, and discordant action; for it may be truthfully affirmed, that that decision has never been deemed satisfactory, but has often been called in question on both sides of the controversy. Other questions here presented have not been settled judicially, but as yet, every court and judge is bound to consider and determine for itself according to its best judgment.
What then is to be done Let the free States return to their duty if they have departed from it, and be faithful to the compact in the true spirit in which it was conceived and adopted. Let the slave States be content with such an execution of the compact as the framers of it contemplated. Let the federal government return to the exercise of the just powers conferred by the constitution, and few, very few, will be found to disturb the tranquility of the nation or to oppose by word or deed the due execution of the laws. But until this is done, I solemnly believe, that there will be no peace for the States or the Nation, but that agitation, acrimony and hostility will mark our progress, even if we escape a more dread calamity, which will not even mention.
However this may be, well knowing the cost, I feel a grateful consciousness of having discharged my duty, and full duty; of having been true the sovereign rights of my State which has honored me with its confidence, and to the Constitution of my country, which has blessed me with its protection; and though I may stand alone, I hope I may stand approved of my God, as I know I do of my conscience.
It becomes my duty: therefore to make the following order:
In, the matter of the Petition ofSherman.M. Booth for a Writ of Habeas Corpus, and to be, discharged from Imprisonment.
A. D. SMITH, Associate Justice of the Supreme Court of the State of Wisconsin.