Kenosha telegraph. [volume] (Kenosha, Wis.) 1850-1854, 1854-07-28
THE FUGITIVE SLAVE ACT UNCONSTITU.
Ti0tAL,
Decision of the Supreme Court
of the State of Wisconsin.
MADISON. WEDNESDAY. JrfY


follows
The questio1s presented by this record
are of great Importance. A citizen oil
this State, presented petition to JUS
tice of this Court, setting forth that he
was unlawfully deprived Of his liberty
and praying that a writ of haJeus corpus
might be issued to bring him before the
said Justice, together with the cause OF
his imprisonment, III order that he might
be liberated, if upon investigations il
should be aScertaincd that his confnc-
ment was illegal The writ was issued
and served, and the prisoner brought be-
fore the officer; and such proceedings were
there had that the prisoner was discharg-
ed. A writ of certi0rari was issued to
bring the record Of these proceedings be-
fore this Court, in order to correct any
error that might have been committed.
The first question which presents it
self, is, whether the writ of ce7ti0rari
can properly issue from this Court. in a
case like the present 1t is contcndcd hy
the relator (Booth) that the writ ought
not to have been issued. because we have
no power to remand the rclat3r back
again to the custody from which he was
discharged, But this, if true. would. as
the matter appears to us, constitute no
objection to our jurisdiction,
1t would only show that. if we should
be of opinion that the relator was i'm
properly discharged, we should not have
the power to give entire relief in the
premises; but simple revisal Of the or
der of discharge. by this court, without
rcmanding the prisoner would enable the
person from whose custody the rclatOr
was discharged to retakc his prisoner.
The Constitution of this State. art. !,
Sec. g. gives this court power to issue
writs of "habcas corpus. mandamuS. quo
warranto, certiorari, and other original
and remedial writs. and to hear and de-
termine the same" We held in the case
of the Attorny General VS.. Blossom, list
Wis. II. 317) that this power was not
granted to the Supreme Court merely to
enable it to enforce the jurisdiction con
ferred upon it in other parts Of the con
stitutlon, but, on the contrary. that this
clause of the constitution contained a
grant of power to the court. 1t follows
that this court has the power to issue any
of the writS enumerated, i'll any case prop
er for their issue, and to hear and deter
mine them.
1t will hardly be contcnled that this
is not proper case for the exercise of
this power. \ judicial decision has been
had, by force Of VIII ch person has been
discharged from Imprisonment. and those
who have an interest in having the i'm
prisOnment continued, as public officers
or otherwise, and from whose custody
he was discharged, have right to the
proper writ or process to bring the case
before this court for revision. And the
writ OF CertiOrdri is the proper one Cor
that purpose. We therefore think that
this objection Of the rclator is untcnablc.
The next question presented, is wheth-
er Justice Of this court has the power
to issue in vacation. a writ of hujeas cor
EHs, and make it returnahle before him
self ut chambers, 1t is Contcnded by the
plaintiff in error (Ablcman) that as this
power is given by the Statute, Grew. Stat.
Chap Ia Sec y to '3A3eoo of the SUI
preme, Circuit or County Courts only.
a justice of this court has no power to is
sue the writ. The reason given to sus-
tain this position, is, that at the time the
act comforting this power was passed,
there were no Justices of the Supreme
Court; that the Constitution of the State
provided for the election of circuit Judges,
and that by force of the constitution they
were to be judges of the supreme court
for five years. and afterwards, until the
Legislature should otherwise provide.
1t is urged further in support Of this
position that the provision in the con<ti-
tuition providing for the organization OF
a separate supreme court. after the cXpi-
ration of five years (if the Legislature
should see fit to establish one) and the
organization of the present court by vir-
ture of this provision, show, that the JUS
tices of the court should do no act watch
can come before the court for review it
being the intention Of the trainers of the
constitution and Of the Legislature which
passed the act regulating the manner in
which the writ Of hdbedS eorpjts is t. be
issued, that the present court Shout not
sit in review upon any decisions made by
one of its members, thus avoiding what
was thought to be an evil. while the SUI
premc court was composed Of the circuit
Judges,
We do not think this objection well ia
ken. The act to provide for the orgam-
cation of this court (Scss. Laws. 1852
chap. 395, Sec. t } expressly declares that
the Chief Justice AMI Associate Justices
o. this court shall be subject t. all the
duties and liabilities to which the ia lres
of the former supreme court were subject.
Among those duties was that of granting
writs of h0bcdS corpus wAcn applied for
in proper case, and we think that we
should be guilty of a gross violation of
duty were we to refuse them merely be
cause the case might be reviewed before
the whole court. The Legislature have
a right to impose any duty upon us - a
court, or upon the justices who compose
the court, which Is Incompatible with the
constitution. and we do not think tia.
the term. separate supreme court. which
is applied To this court, necessarily i'm
plies that the justices of the court cannot
be empowered 10y the Legislature to do
any act. which may come before the whole
court.
The next qaeStionis whether the writ
ought to have been issued, it appearing
from the petition of the rclator, that he
was imprisoned by color of legal process
issued BY Commissioner Of the uitcd
States for the district of Wisconsin. 1t
is insisted by the counsel for the plaintiff
in error, that in all cases, the general
comfy of courts which have concurrent
jurisdiction, leaves the case to the court
whose jurisdiction first attaches and that
such jurisdiction cannot be taken from
the court by subsequent proceedings in