The southern press., 1851-09-06
From the Buffalo Commercial .7drertiseL
Judge COnkling'S Opinion.

to Judge Conkllng, III Oehh1 OF lle peltloher'
for writ of habeas corpus ad suy'clendum, to
be directed to Mr. George b. Gates, one of the
deputy marshals of this district in whose GUS
tody the petitioner was alleged to be, at the
city of Buffalo. The petition alleged that the
petitioner was restrained of his liberty in the
custody of the above mentioned officer, under
pretenca that he was fugitive from labor, and
in virtue Of n warrant, copy OF which was an
neXed to the petition wherefore he prayed a
writ Of hdbedS corpus to discharge him from Gus
tody, on the ground that, rs he was advised by
his counsel and believed, his imprisonment was
Illegal that he was free man. and that the
commissioner by whom the warrant was issued
had no iuri -diction to issue the same. Annexed
to the petition was the copy of Il warrant issued
BY +. X. Smith, esd, a commissioners OF the
crc uit court of the United States, purporting to
have been granted on the application of BenJa-
min s. Rust the duly authorized agent and at
torney of George J. Moore, of Louisville, in the
State of Kentucky, alleging that the petitioner
owed labor and service to the said Moore, and
that lie was fugitive theretrom. by an en-
dorsement on the warrait, it appeared that the
| same had been executed and returned, and that
the deputy marshal had the petitioner in custody
in virtue thereof .... -. ~.,..:.
The petition contained no allegation of irreg-
uarity in the proceedings before the commits
sioner, nor was it alleged in the petition, or by
the counsel for the petitioner, that there was
any nsutficiency in the warrant apparent upon
its face. . .:.. 49,. a..
This application was denied by the Judge, on
the ground of want Of proba le cause, it being,
as he stated, a settled rule both in England and,
in the absence of any statute Injunction to the
contrary, in this country also, that the writ of
hlbeas corpus was not grantab,e of mere course,
nor without probable cause shown. 1t was an
extraordinary remedy for unlawful restraint CT
personal liberty, and no court or judge had au-
thority to allow it, except in cases apparently Of
this nature. 1t was not enough for the petit
toner to aege in general terms that his con
tinement was illegal he was required to show
that it~probAbly was SO in fact In the case be
fore him, conceding the validity of the statute
under which the commissioner had acted not
only had tho petitioner failed to fulfil this re-
quireu ent, but on the contrary, 1t expressly ap.
peared that the commissioner in causing his
arrest and detention, had onlI discharged an
imperative duty enjoired upon him by law and
with regard to this act, the Judge said he did not
consider himself at liberty to treat its constitu-
tonaIity as any longer an open question. Nearly
a year had elapsed since it received the sanction
Of the two Houses of Congress, and in accord
ance with the official opinion Of the Attorney
General of the United States, the approval OF
the President No act OF the national govern
ment had ever more strongly arrested the at
tention of the American people, or been more
closely scrutiniZed. 1t had been repeatedly
brought under discussion and consideration be-
fore the judges And Judicial tribunals Of the
country, both State and national, and in every
instance It's constitntiOnaty had been un,
. | eQuvoc;lIy asserted and maintained. Among
those by whom this opinion had either directly
or indirectly been declared, are, ut least three
;, of the judges n the Supreme Court o.! the
United States, all Of whom, moreover, are cti.
zens of States in which slavery does not Xist.
> Under these circumstances, Judge Conkliag
said it was in his Judgment, wholly unnecessary,
and would scarcely be decorous for him to en-
5 ter upon the examination of the question Mt all
At an earlier period it would have been his duty
TO DO SO, and 10 be governed BY his own indie
pendent conclusions; and this duty he should
!, not, for a moment have hestateG to perform.
The motion for habeaS corpus having for
these reasons been denied, a second petition was
: presented on the 18th inst, on which the motion
f was renewed. The petitioner states that he is
still restrained Of his liberty in the custody of
SIr. Gates, the deputy marshall that after his
arrest in yirlue of the warrant mentioned in the
first petition having been brought before the
said commissioner, he, the said commissioner,
made out a certificate, directing the petitioner
TO be taken to the State of Kentucky, whence,
rs it was alleged. he had escaped, and where he
still owed service The petitioner further alleges,
that as he is advised by counsel, and verify be-.
Iicves the proceedings before the commissioner
are null and void for want Of jurisdiction in the
said commissioner TO make the said certificate,
because there was no evidence before him, that
he. the petitioner, was a slave. bit that, on the
q Al. :. A.
advised, established his freedom; that the said
proceedings were founded upon az alleged re.
cord of the county court of Jeifrrson county in
the State Of Kentucky, which record is not ex-
emplifed under the seal of the said court, in
pursuance of the act of Congress in such case
made and provided, wherefore, az the petitioner
is further advised. the said pretended record is
void, and the cOmnIl ssiOner acquired no urisdic-
ton under the same: that there was no other
proof before the commissioner aside from such
pretended record, that the petitioner owed ser.
vice to the claimant, Moore but. on the contrary.
there was proof that the claimant brought and
permitted the petitioner to come To- Cincirnl III
in the State of Ono, Whereby as he is further
advised and believes, he acquired his freedom
And the petitioner further taes, that TO the best
Of his knowledge and belief, there was not be;
fore the commissioner anv evidence, except the
from kentucky and lastly, that TO the best OF
his knowled re and belief, lac is not detained fo,
any other case.
The petition, for reasons stated in the aili 'ayt
: i, verified by the oath Of Mr. Love, acting as the
} counsel Of the petitioner.
) On this petition, Judge Conkling granted an
order HiSi returrable on thr 26;h day Of Au.
gust instant. On that and the following dav
the case was ably argued by Mr.. 1acot for the
4 claimant
$ In opposition TO the rule, the counsel for the
claimant read an affidavit made by Mr.. Gates
the deputy marshal, setting forth the proceed
z ings before the commssyrcr and incorporat.
ing the certificate granted by him. Appended
to the certificate, as forming part thereof, was
! the petition Of the claimants agent and attorney
and the power Of attorney under which h,
acted the warrant of arrest the transcript Of q
record Of the county court Of Jefferson county
in the State Of Kentucky, authenticated by The