New-York daily tribune., 1854-07-12
eyed copstitutionsity of the Act declaring the same

10 be void.
The Court first grapples with the question OF the
power Of Congress and on this hesS in nervous words
indicates those state Rights which have been so mad
" trsmpled 10 the dust in order 10 sustain slavery!
To Weld cheerful support TO every power conS'-
tufiousv exercised BY the federal Government II Is
admitted. il the sworn duty of every State ofcer;
bu, il il equally his duty to nerpose resistance to
the extent of his abilities, to every assumption oil
pover ON the part Of the General GOvernm nj when
s not expressly granted necessarily implied IN 'He
federal Constitution. In view of the vastly increas:
ing power of the General Government and the reia-
lively diminishing importance Of the State sovereign
ties respectively the duty to watch closely and resist
firmly every encroachment of the former becomes e'
ery day more and more important and the ohial oa'h
of the unctionares of the States becomes more and
more significant. He is the true man and faithful Oh
fcer who is ready TO assert and guard evey Jo' oi
power rrhtfuly belonging to each end 10 resist the
slightest eucroacbment or unjust assumption on
the part Of either. In such spirit Judge smith
braces himself 10 the work.
After explaining the different classes of provisions
in the Constitution the Judge shows that the clause
touching "fueitves from service" was in the nature
power Of legislation upon Congress. This conclusion
he deduces triumphantly both from the words OF the
Constitution and the records Of the Convention And
here in regard TO this point, thank him for setting
his judicial heel upon the enormous lie 80 CONSTANT!
repe at.d that this provision of the essential
compromises of the Constitution. and that without II
tic Union could not have been formed; when in point
of fact it did not enter in the slightest degree into
the compromises between the North and South.
lie next shows that the provision in question con-
templates Judicial determination of the lawuness oi
TIE claim which may be made; and he declares tha'
such determination cannot be submitted to Commis-
soners, who are in respect Judges, and do NOT
constitute part of the udicature of the country and
that on this account the Fugitive Act is unconstltu'
tiOnal and void.
In asserting that the claim for fugitive slave is
suit at common law. and therefore to be tried by
jury, the learned Judge contents himself with the
statement which is substantially true. that the term
common law was used in the Constitution in con-
tradistnction to suits in Admiralty and Equity and
that proceeding which did not fall under the latter
heads, was at common law" But he might have
gone further. Ii is susceptible OF demonstration that
the claim for fugitive slave according to the early
proceedings and preccdents in England. the home Of
the common law, bya suit at common law y
These proceedings and precedents were amply dis
cussed by Hargrave in his great argument in Somer
sets case: they will be found also in Ftzherberts s
Repertory of Writs, the Natnra Breriam and 10 Lord
Chief Justice Comynss Digest that great arsenal ofthe
common law. The Constitution. in securing trial by
jury in :. suits at common law" where the amount in
is han txxe dolsrs .rably at
tached that mode of trial to the claim for fugitive
slave.
The summary character of the proceedings, on eI
pare evidence, with cross examination, are next ar
raigned by the learned judi ge AS nfraction OF the
provision of the Constitution. that person shall be
deprived Of life liberty property, without due pro-
cess Of Ldn; that s according to received technical
meaning, without regular Judicial proceedings, ac-
cording TO the course of the common law, or
by regular suit, commenced and prose-
cuted according TO the forms of law. Can that be
due process Of law he says, which is without process
altogether record is made, behind the back Of
the alleged fugitive which is conclusive against him.
Is this deprvng person of liberty without due
process Of law "Other Courts and other Judges"
he excloims, may pronounce this provision of the
act of 1850, constitutional, but while have mind
to reason and conscience to dictate, and oath
to support the Constitution Of the United States
resting upon my soul cannot so declare il, andf for
- the price Of worlds, will not"
This promises to be memorable Judgment, leading
the way to better things O.her courts aad judges
will take up the same exalted strain OF justice. The
pusllanimous example set by the Supreme Court OF
Massachusetts, will be discarded while just guards to
protect the liberty of the citizen will be boldly as
serted The landmark which Wisconsin has now
erected will be cherished forever, sacred as the Con-
stitu,on and the Common Law. 1t rarely happens to
person in judicial liie while dispensing justice to
associate his name with historic act. Ghis, how
ever has been done in this citizen has been
set at liberty, and at the time blow has been
struck at Il revolving statute, under which it will yet
tumble to the ground.