The southern press., 1851-09-04
From the Buffalo Commercial Advertise
Judge CoDkiing's OpinioD.


for a writ of habeas corpus ad suJiciendl,n, tc
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
etence that he was fugitive from labor, and
in virtue of warrant, a copy Of which was an
nexed to the petitioD wherefore he prayed a
writ of habeas corpus TO discharge him from Gus
tody, on the ground that, as 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 jurisdiction to issue the same. Annexed
to the petition was the copy of a warrant issued
by II. X. Smith, esq, commissioner OF the
circuit court of the United States, purporting to
have been granted on the application of Benja-
min ). Rust, the duly authorized agent and at
torney of George ]. Moore, of Louisville, in the
State of Kentucky, alleging that the petitioner
owed labor and service to the said Moore, and
that he was a fugitive therefrom. by an en-.
dorsement on the warrant, it appeared that the
same had been executed and returned, and that
the deputy marshal had the petitioner in custod,
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 insuficlency in the warrant apparent upon
its face.
This application was denied l<khe judge on
the ground of want of proba Ie cause, it being,
as he stated, settled rule both in England aud,
in the absence of any statute injunction to the
contrary, in this country also that the writ of
habeay corpus was not grantable of mere course,
nor without probable canse shown. 1t was an
extraordinary remedy for unlawful rcstraint ci
| personal liberty and no court or Judge had au-
thority to allow it, except in cases apparently Of
this nature 1t wns not enough for the petit
tioner to allege in general terms that his con
inement was illegal; he was required to show
| that it probably was so in fact. In the case be
fore him, eoncedng the validity of the statute
under which The commissioner had acted, not
only had the petitioner failed to fulfil this re-
qureTent, but, on the contrary, it expressly ap-
peared that the commissioner in causing his
arrest and detention, had only 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-
tionality as any longer an open question. Nearly
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 o.
the President. No act of the national govern
ment had ever more strongly arrested the at
tentlon of the American people, or been NOR,
closely scrutinized 1t had been repeatedly
brought under discussion and consideration be
fore the judges and judicial tribunals of the
country, bQtI State and national, and in every
instance irs constitutionalitY had been un.
equiyocaly asserted and maintained. Among
those by whom this opinion had either directly
or indirectly been declared, are, at least three
of the judges Cf The Supreme Court of the
United States, all Of whom, moreover, are citi
zens of States in which slavery does not xist
Under these circumstances, Judge Conkling
said il was, in his judgment, wholly unnecessary
and would scarcely be decorous for him to en-.
ter upon the examination of the question ut all
At an earlier period it would have been his duty
to do SO, and to be governed by his own indie
pendent conclusions; and this duty he should
not for moment, have hesitated TO perform.
The motion for habeos corpus having foi
these reasons been denied, a second petition wa.
presented on the 10Th inst, on which the motion
was renewed. The petitioner states that he Is
still restrained of his liberty in the custody Of
Alr. Gates, the deputy marshal; that after his
arrest in virtue of the warrant mentioned in the
first petition, having been brought before the
said commissioner. he the said commissioner
made out certificate, directing the petitioner
TO be taken TO the State of Kentucky, whence,
as IL was alleged he had escaped, and where he
still owed service The petitioner further alleges,
that as he il advised by counsel, and verify be-
lieves, 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 slave, but that, on the
contrary, the proof, the petitioner was further
| advised established his freedom that the said
proceedings were founded upon an alleged re-
cord of the county court of Jefferson county in
the State of Kentucky, which record is not ex-
empfed under the seal Of the said court, in
pursuance Of the act of Congress in such case
made and provided, wherefore, as the petitioner
is further advised the said pretended record is
void, and the commissioner acquired no jurisdic-
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 Cincinnati
in the State of Ohio, whereby as he is further
advised and believes, he acquired his freedom.
And the petitioner further tates, that to the best
Of his knowledge and belief, there was not be
! fore the commissioner any evidence. except the
same pretended record of the fact of his escape
from Kentucky; and lastly, that TO the best ol
his knowledge and belief, he is not detained foi
any other case.
The petition, for reasons stated in the afli lavit
Is verified by the oath of Mr.. Love, acting as the
counsel of the petitioner.
On this petition, Judge Conkling granted ar
order n,si returrabe on the 26lh day of Au
gust instant On that and the following day
the case was ably argued by Mr.. Talcot for th'
claimant.
In opposition 70 the rule, the counsel for th'
claimant read an affidavit made by Mr.. Gates
the deputy marshal, setting forth the proceed
ings before the commissioner and incorporat
ing the certificate granted by him. Appended
to the certificate, as forming a part thereof WA
the petition of the claimants agent and attorney
and the power Of attorney under which b,
! acted the warrant Of arrest the transcript of
record of the county court Of Jefferson count,
in the State Of Kentucky, authenticated by tn,
, attestation of the clerk, and an impression Of
the seal of the court thereon stating IL had beer
proved to the satisfaction of that court by the