Mineral Point tribune. [volume] (Mineral Point, Wis.) 1854-1858, 1854-08-09
OPINION Or JUSTICE CRAWFORD.
In re, the Petition of SHERMAN NJ. BoorH, to be
discharged from Imprisonment
Certiorari directed TO Hon A D. SMITH one of
the Justices of this Court

pfethren upon all or the points embraced
In the opinion which has been lust de-
livered by the Chief Justice, feel called
upon to designate in writing the points
upon which | dissent
That either of the justices of this court
has authority to grant the writ of habeas
corpus, when a proper case for the issuing
of the writ Is laid before him by petition,
L do not entertain any doubt; but wheth-
er the mandate of either of us in the
form used IA this case, and authenticated
or tested only by the sign manual of the
justice granting or allowing it, without
the signature of the clerk, or the seal of
court, in such writ as is contemplated
by the statute, (chap. ia, secs. 6, 7, Al
and Az is not made question in the
present case, and may be of no impor-
tance here.
Iagree with my brethren that the pro-
ceeding upon the return of the writ, and
| the decision arrived at by the Justice be-
fore whom the hearing had taken place
at chambers, may be reviewed in this
court by means of a writ of ceytsorari
L also concur In the opinion, that when
writ of ha6eaS corpus cum calsa, has
been granted or allowed, and issued di-
rected to any person within the territorial
limits of this state, enjoying the protec-
ton of our constitution and laws. and
ameanable to them, the exigency of that
writ must be cbeyed, and return to the
writ enforced, whether the person to whom
the writ has been directed be the Marshal
of the United States or not, and the rea-
sons for this conclusion, as presented by
the Chief Justice, are entirely satisfacto-
ry to me.
| also believe, with the majority of the
court, that when a writ of habeas corpus
cum causa has been directed to the Mar
shall of the United States. and he has by
his return thereto, set forth writ or pro
cess by virtue of and in obedience to
which, he claims to detain the person by
whom, or in whose behalf the writ of
habeas corpus has been applied for, it is
within the province of the State court, or
magistrate, before whom the hearing is
had, to look into the process by which
the Marshal justifes the detention. so
tar as may be necessary, to enable the
court, or officer, to determine whether the
process is such as might have been issued
by the tribunal from which it emanated
and whether that tribunal had iurisdic,
ton of the subject matter. or offence set
up IN the warrant or process. but beyond
this | cannot go. That we are authorized
to examine into the nature of the process
for this purpose. must, [ think be obvious
because without such an inquiry, we could
not determine whether really there be
a warrant, or writ, or not and the bare
return by the Marshal, that he detains
by virtue of a process, would not be
compliance with section 10 of our habeas
act, without setting forth a copy Of the
process. And that our legislature so
viewed the power of the court, or officer.
before whom habeas corpus case might
be heard, is apparent from the first subdi-
vision Of section Is Of the chapter. which
directs that the party shall be remanded.
if 1t shall appear that he is detained "by
virtue of process issued by any court or
Judge of the United States in a case
where such court, or Judge, has exclusive
jurisdiction" How otherwise than by
looking Iuto the process. and examining
Its nature, could 1t be ascertained and de
termined whether it were in fact. process
issued by federal authority, or whether
the case or matter in which it issued were
exclusively within the jurisdiction, of the
federal court, or Judge But when the
inquiry into the process is carried thus
far, and 1t is discovered that it is valid
process, of the Issuing of which the feder
al court, or officer, had jurisdiction-and
that the subject matter, or offence named
therein, is within the control or iurisdic
tion of the court or officer issuing it, then
| believe, just and proper regard for the
laws of the general government and for
the due administration of them in their
own courts, demands that the State court,
or officer, should decline to proceed any
further, and refer the applicant to the fed
eral court for the relief which he seeks
In pursuing this course, | do not per-
ceive that the tribunals yield anything
which may be properly included in their
rights or independence but, on the con-
trary, they thereby evince a desire to pre-
serve q clear distinction between subjects
over which the Federal Courts nave iuris
diction, and are in the exercise thereof
and subjects beyond the jurisdiction of
the Federal Courts and over which the
state tribunals have the exclusive control
Nor can | see how the person whose liber-
ty is invaded by color of process, is de-
prived of the writ of habeas corpus. if
indeed, his case be one in which that writ
ought to be allowed, because the courts
and judges of the United States are as
fully empowered to allow such writ where
the detention or imprisonment is found
in a case within their jurisdiction. as are
the courts of the state. Wide Serg.
Const Law, chap. 28, and eases there
cited
But the question Of greatest moment,
and a decision or opinion upon which is
most desired in this case, relates to the
constitutional power of Congress to enact
the law of 1850, Chapter 90, commonly
known as the Fugitive Slave Law.
1t has been zealously and ably urged
at the bar, by the counsel for the petition
er. that the Constitution of the United
States vests no power, either expressly.
or by implication, in Congress, to legis-
late upon the subject of the reclamation