New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1854-07-24
TIE FUGITIVE SLAVE ACT UNCONSTITUTIONAL
DECISION or THE SUPREME COURT OF WISCONSIN
JUSTICE SMITHS OPINION CONFIRMED.
MADISON. "Wednesday, July 1910 A. VI.


opinion of the Court, as follows:
The questions presented by this record Of great i'm.
portspce citizen Of this State presented petition to
Justice of this Court setting forth that he unaw
fully deprived Of his liberty and stating that writ Of
koLeas corpus might be issued 10 bring him before the sad
Justice together with the Of his imprisonment in
order that he might be liberated, it, upon investigation it
should be ascertaned that bis confinement illegal
The writ issued and served and the prisoner brought
before the officer and such proceedings there had
that the prisoner discharged writ Of oertiOrar
Issued bring the record Of these proceedings before this
Court in order to correct any that might have been
committed
The first question which presents itself is, whether the
writ Of cert0rari can properly issue from this Court
case like the present 1t is contended by the reator
Booth that the writ ought have been issued be-
cause we have power remand the reator back again
TO the custody from which be discharged But this,
if true would the matter appears TO U.s. constitute no
objection to jurisdiction.
II would only show that if should be of opinion that
the reator improperly discharged, we should not
have the power give entire relief in the premises but
simple reversal of the order Of discharge, by this Court
without REMINDING the prisoner, would enable the person
from whose custody the reator dschagedto reake his
prisoner The Constitution of this State Art :, Sec 81
gives this Court power writs of habeas corpus
"mapdamus quo warranto certiorari and other original
and remeda writs and 10 hear and determine the same
We held in the Of the Attorney u.s. Blossom
Qst Wis II. 3l7 that this power was not granted TO the
Supreme Court merely to enable to enforce the ursic
ton conferred upon it in other parts of the Constitution
but on the contrary. that this clause of the Constitution
contained grant of power to the Court 1t follows that
this Court has the power to issue any Of the wr enumer
aed in any proper for their issue, and to hear and
determine them.
twill hardly be coDended that this is not proper
for the exercise Of this power. Judicial decision has
been had by force of which person has been discharged
from imprisonment and those who have interest in
having the imprisonment continued public officers
otherwise and from whose custody he was discharged,
have right to the proper writ or recess to bring the
before this Court for revision Ana the writ OF cero
rar is the proper one for thCt purpose we therefore
think that the objection of the relaOr is untenable.
The question presented is whether Justice OF this
Court has the pOwerto ISSUE IN vacation writ OF h0bea
coy6us and make il reurnabe before himself at Cham
bers II is contended by the plaintiff in error Alderman
that this power gwen by the Statute Rev stat chap
1874 81 to "JUdges of the Supreme Court Circuit or
County Courts" only Justee OF this Court has no
power 10 issue the writ The given to sustain this
position is that at the time the act comforting this wer
was passed there were 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 to be Judges of the Supreme Court for five
years and aiterward until the Legislature should other
wise provide.
1t urged further in support of this position that the
provision in the Constitution providing for the organization
of separate Supreme Court, after the expiration Of five
wears If the Legislature should fit establish one and
the organization of the present Court by of this pro-
vision show that the Justices Oft Court should do act
which can come before the court for review being the
intention of the trainers of the constitution AID of the
Legislature which passed the act regulating the manner in
which the writ of h0beaS corpus is TO be issued that the
present Court should not SIT IN review upon any decisions
made by one of its members thus avoiding what was
thought 10 bIan evil while the Supreme Court was com.
posed of the circuit judges
=. no IN
provide for the organization of this Court lSess Laws
1852 Chap $685. Sec A. expressly declares that the Chief
Justice and Associate Justices of this Court shall be sub
iect 10 all the duties and liabilities 10 which the Judges OF
the former Supreme Court subject. Among those
duties that of granting writs of habeas corpus when
applied for in proper case ana we think that we should
be guilty of gross violation of duty we 10 refuse
them merely because the might be reviewed before
the whole Court. The Legislature have right to impose
any duty upon as Court or upon the Justices who
compose the Court which Is not Incompatible with the
contribution and do think that the term separate
Supreme Court which is applied TO this Court necessarily
implies that the Justices of the Court cannot be empow-
cred by the Legislature to do an act which may come De-
fore the whole Court
The question is whether the writ ought to have
been issued it appearing from the petition OF the relaor
that he imprisoned by color OF legal process issued by
Commissioner of the United States for the District of
Wisconsin II is insisted Dy the counsel for the plaintiff
in error that in all the general comfy of Courts
which have concurrent jurisdiction leaves the case to the
Court whose jurisdiction first attaches and that such u-
rsdcton cannot be taken from the Court by subsequent
proceedings any other Court OF concurrent jurisdiction
II is further insisted that this rule applies higher
grounds in Courts of the distinct jurisdiction OF the
States and the United States and tsat the process and
proceedings of Commissioners form no exception To ths
rule as thew are officers OF the Courts and recognized as
mart of the judicial Zation of the United States
We do not how the Commissioners can properly
be called officers of the Courts OF the nied
States IL is true that they are appointed by the
Judges of those Courts but neither the Courts nor the
Judges are responsible for their acts ON the contrary
thsS duty and power prescribed with particularly IN
the acts of Congress The Courts have no power to direct
them as TO the mode in which the duties imposed upon
them by law shall be performed and seems 10 Us 10 De
great misuse of language 10 call them ofcers oil the
Courts Nor do think that they can with any prope-
ty be called judicial officers. The Constitution of tue
United States Art. 3 Sec. L. provides that the ha
power of Il United Saes shall be vested in one sl-
prtme Court and such inferior Courts as the Gong
may from time TO time ordain and establish. Inc
judges both of the superior and inferior Courts shall
d" hold their Office during good behavior and shall al
stated times receive for their services compensation
which shall not be diminished during their continuance
in office" In the of Martin Hunters Lessee,
list Wheaton, Il. 3O5,l the Supreme Court OF the
United States SAYS. after quoting this section OF the
Constitution Gould Congress create or limit any
other tenure of the Judicial office Could they
refuse to pay stated times the stipulated salary or
diminish il during the continuance IN office But one
answer can be given those questions il must be IN
d" the negative. And again, IN the same case: Con.
eress cannot any portion al the judicial power OF
" The United States ex sept the Courts ordained and
" established by itself" We therefore, do not see how
these Commissioners can be regarded as part OF the
judicial organization of the Uni;ed States But the posi-
zion assumed by the counsel for the panh IN error thai
the Court whose jurisdiction first attaches TO case VIII
retain it, notwithstanding that proceedings may be SUB
sequently commenced in other Courts oil concurrent
risdction is we think indispuiably correct IL Is
familiar principle and will be denied by no one;
But the question arises, whether the facts stated
in the petition of the relstor for the WIT OF haoea' corpus
show such case
1t will not be denied that the citizens of the state nar
ally and properly look their own State tribunals ior re-
hei from all kinds of illegal restraint and imprisonment
These Courts sufficient Tor tnei