The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-14
Finale Of the Slave Case In nr,lweuk,e.

THE FUGITIVE SLAVE LAW UNCONSTITUTIONAL
Mr.. Sherman M. Booth, Of Milwaukee, was ar
rested few weeks ago in that city, on the charge
OF participating in the forcibe rescue Of an alleged
fugitive slave Mr.. B. gave bail for his appearance
to stand trial at the next term of the United States
Court, and was suffered to go at large. Things re-
manned thus, as We learn from the Milwaukee Sem
finei, until Friday, May 26, when Mr.. Booths bail
surrendered him to the custody of the Marshal A
writ OF habeas corpus was Immediately sued out be-
fore Hon. A. d. Smith, one of the Judges of the Su.
shall Alderman made return thereto BY producing the
defendant, S. M. Booth. His counsel, Messrs. Paine
and Watkins, moved for his discharge.
The opinion OF Judge Smith, that Booth be dis
charged, is very long and elaborate. The chief
points made are that the article in the Constitution
on which the law of 1850 for the reclamation of f-
g1tive slaves rests, was merely compact by the
contracting parties to the constitution, by which
tde Tree states were to be bound to provide legs-
lation, under due course Of law, and after examine
ton Of facts for the return Of such persons but that
no power was conferred upon Congress to legislate
upon the NATTER and that it is the duty Of the States
TO provide such legislation. The fact that Congress
has not power to punish State officers for refusing
to provide such legislation, is proof that the mat
ter remains in form of compact. That IL Is clear
that Congress canuot constittionally act upon this
subject; while 1t s also clear that the States cannot
pass laws dscharging fugitives from service. All
such laws must be void. That the constitution con-
templates an examination into the claims of the
claimant of the fugitive, to be made where he is, by
decision or warrant OF Judge or Com missioner q
judgment in fact, without trial or examination
That in order to ascertain to whom "such service
or labor Is due" examination and inquiry must be
made. II services or labor, Is DUE the fugitive
must be given up; but the fact must be ascertain.
ed There is an issue of fact to be tried. The suit
to try this fact is not suit in equity or admiralty
and must be at common law; hence trial by urv
is demanded properly. The act of 1850 is Incor-
sttutional in that il violates the principles which
forbid that persons shall be deprived of liberty with
out " due process Of law" The summary proceed
ings under this act of 1850 clearly violate this pro-
vision. He refers at length to the varying sent-
ments OF the court in the case of Prigg va, Penn
sylvania, and thinks that in view CT the doubts
thrown around that case by the u. s. Judges them
selves, they ought to review their decision. He
concludes by suggesting that the strict performance
of their duties by the States and the federal govern
ment and their confinement within their own limits
are the only means of avoiding collisions; aud he
declares that in his examination of this case he has
the consciousness Of having done his duty, and his
full duty; and though he may stand alone, he
hopes be may stand approved Of God as he does of
his own conscience
The Milwaukee Netcs says:-The abotionists
present were greatly beafed during the delivery Of
this opinion, and with the summary manner in
which the opinions of such rushlights as Webster,
Choate, Clay Cass, Chief Justice Shaw and Ogden
Hoffman, and such as Curtis, Nelson, Grier and
Mclean, the four Northern Judges Of the United
states Supreme Court, were swept aside as mere
cobwebs, before Wisconsin Supreme Court Judge
o. Cleveland Justice Of Che Peace.
we understand that this case will be carried up
to the Supreme Court of the State II the decision
OF Judge Smith shall be there sustained we trust
and believe 1t will be carried up to, and decided by,
the Supreme Court Of the United States.