Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1851-05-08
CAN A STATE PROTECT THE LIB
ERTY OF ITS INHABITANTS!

vent the arrest or rendition of fugitive slaves
The act is specific enough-the palpable pur-
pose is to protect freemen against kidnapping I'M
der color Of the fugitive slave act. The protoc-
ton which Vermont gives is the writ Of habeas
corpus and it is agreed on all hands that this is
the proper and rightful remedy. No Judge has
vet appeared, who is so Jealous for the strict ex-
ecution of the fugitive slave law as Judge Mel
son yet he admits that the habe0s corpus can
not be avoided But we may as well quote still
higher authority;
If party is unlawfully imprisoned the writ
Of hsbeas corpus is his appropriate LEGAL remedy.
II Is his suit in Court, 10 recover his liberty
Chief Justice Tdneg l4h Peters, Holmes rs. Jen-
iSon.
Vermont has regarded the habeas corpus as a
"suit in court to recover ones liberty" a suit
to be determined like any other suit, by The facts
aud the lac in the cose-and she permits first
full inquiry into The facts in the accustomed mode,
through a jwy-second, an appeal from a single
Judge in vacation to a regular court-anl, lastly,
70 settle TIE la,e by the highest authority the
form of action permits an appeal, by writ of err
ror, to the Supreme Court of the United States.
If Vermont has not exceeded her rghtfnl
power, we cannot conceive it possible for any
freeman to doubt that the Liberty of the hum
blest inhabitant of the State is worthy of all the
protection which this act gives. For his horse,
man shall have trial by jury; review, and an
other trial by jury and an appeal to the Supreme
Court strange, indeed, if his title to himself
should not be thought worthy of equal prorec-
ton. We believe Vernon, has the right to reg
ulate the proceedings of her own courts on the
writ Of habeas corpus and TINT il is a RIGHT
which Congress cannot in any manner abridqe,
except by an entire suspension ofthe habcas cor
pus IN the contingencies specified in the Consti-
tuition. This right to regulate the manner Of
proceeding rests precisely on the same ground as
the right to authorize The issue of the writ which
is undeniable, to wit-upon the sovereignty Of the
State. 1t is the fashion, to be sure, TO speak Of
the habeas corpus as a common law right: but
the common law is not law, except by the recoq-
milton Of it as law by the sovereign. The Su-
premc Court Of the United States has indeed
held that the common law is the law Of the Uni
ted States so far as applicable; but it is so, be-
cause generally recognized as law by the indi-
vidual States, because il is in fact the fonnla-
ton on which all our law has been built. # has
never been held that the states may not super
sede the Common law by statute. But if it be
maintained that the states cannot improve upon
the common law, then we will stand on that il
gives the habeas corpus, and trial by Jury, and
numberless other remedies, all embraced too in
that expressive phrase of the federal Constitution
-" due process of law"
The English doctrine of habeas corpus as laid
down by Lord Coke, q" the oracle Of the common
law" and Holt, +" the model on which in England
the judicial character has been formed" is broad
enough for the purpose Of sustaining the act of
Vermont, we think. This is mmateral, howoy-
er, for it is not to be denied that Vermont is. to
all intents and purposes sovereign, and possessed
Of all the rights and powers and subject to all
the duties Of a sovereignty, except Just so far as
she has surrendered her power to the federal gov
ernment. Neither is it to be doubted that Yer
mont has the power, and is under obligation, to
protect the persons and property Of its nhabh-
ants, in any of the modes known to the common
law, or to devize new ~ tutory remedies not in
consistent with the federal constitution. Such is
the doctrine of the U. S. Supreme Court:
" a state has the same undeniable and unlim-
tied jurisdiction, over all persons and things with
in its territorial limits, as any foreign nation.
where that jurisdiction is not surrendered or re-
strained by the Constitution oftbe United States.
That by virtue OF this, II Is not only the right
but the bounden and solemn duty Of a State. 10
advance the safety, happiness and prosperity Of
It's people, &c. where the power over the particu-
lar subject, or the manner of its exercise, is not
surrendered or restrained in the manner Just sta
ted.'-lI Peters, l39.
And this is the doctrine of the Federal Con
stitulion also, article ten of the amendments:
The powers not delegated to the United
States by the Constitution, nor prohibited by 1t
TO the States, are reserved to the States, respec-
lively, or 10 the people"
The simple question: them is this: Is the pow
er of the State over the habeas corpus, trial by
jury, and all other modes of protecting the lber-
ty of its inhabitants "by due course of law
surrendered or restrained" or prohibited" by
the Constitution of the United States? And the
rule Of construction must be the strict one for a
double reason: LIST, because the power claimed
is against the liberty of the citizen, and ID, a.
gainst the rights Of the STATES.
The Federal Constitution on he Ha5eas Corpus.
The only provision of the Constitution upon
this subject is positive restriction upon Con
gress, ia these words:
The privilege Of habeas corpus shall not be
suspended, unless when in cases of rebellion or
invasion. the public safety may require it"
The restriction, it will be observed, is AGAINST
suspension Of the privilege solely is there not
TO be derived FROM this, by fair implication, the
power of regulating proceedings under the writ
May not Congress, in short do any thing ereep,
10 suspend it Even in cases strictly within the
exclusive Jurisdiction of the federal government
Congress can derive no warrant, 10y mere neg,
alive implication, from this restriction upon IL
Power,) to Gbridgc the privilege in the slightes
degree. As against The States, in accordance
with the rule of the Supreme Court quoted lust
week, and also with the 10th amendment, il i
very clear that Congress derives no power what
ever from this clause: il contains neither an
" express grant Of power" to Congress- nor a
"prohbition" upon the States except in the case
specifically named. The language, too, Is re-
sfrlfflgf only updt o., L..