Kenosha telegraph. [volume] (Kenosha, Wis.) 1850-1854, 1854-07-28

courts have exclusive jurisdiction.
But we think, that whatever difficultie:
this section Of the statutes may create a:
to the proposed course to be pursued by
the officer. in case of that description
it should not be construed go as to de
priye state court or officer of the pow
or to Issue the writ in all cases, where {
citizen Of this State. is held in custody or
the ground of an alleged violation of a
law of the United States. The same DIFF
fculty would present itself, if State
magistrate, acting wholly without author
ity, should commit a person to prison
for refusing to give bail for his appearance
at a court of the United States. to answer
an ot'ensc against the laws of the Unitet
States.
There being no valid objection to is.
suing the writ and bringing the prisoner
before the officer. the question arise:
whether the discharge Of the prisoner wa.
in accordance with law, The return o
the Marshal to the writ Of hdbedS c0Tpu;
sets out su )stantially the same reason
for the detention of the prisoner as thai
stated in the petition for the writ above
! given. so that there is no necessity foI
restating it. The first objection taker
to the return, is, that it does not set forth
a valid warrant. Upon this subject we
fully concur in the opinion of the justice
of this court WHO discharged the prisoner
The warrant fails TO state any oiiense I'M
der the act of congress III question, mas
much as it does not show for what pnr-
pose Joshua Glover. therein named, was
in the custody of the Deputy of the Mar
shall. He may have been in custody pur-
/ suant to the act of congress. approved
/ September 18th, 1850, and not have been
arrested as a fugitive from labor. The
warrant does not therefore state that the
petitioner aided, abetted, or assisted a
person who was arrested as fugitive
! from labor to escape from custody. This
is essential in order to constitute an of
Tense against the act of congress. We
/ are aware that it is sufficient in a war
. rant to state the oiFense without that par
! ticularity required in an Indictment; but
still there must be, at least general
statement Of the ottense, in order to jus
tify the arrest.
1t is further objected to the return of
the Marshal. that. admitting Glover to
have been arrested as fugitive from la
Dor under the act of congress. approved
September 18th 1850. still his arrest was
unlawful for the reason that the act is
repugnant to the constitution of the t.
s.. and therefore void. And it is contend
ed by the rclator. that it can be no crime
10 abct or assist person to escape from
Of
sons urged in favor of this position of
the relator, are that the constitution of
the United States confers no power upon
congress to legislate upon the SUBJECT of
the surrender of fugitiyes from labor
that the act III question attempts to CON
fer Judicial power upon commissioners.
not upon courts; and that by virtue of
the act person may be deprived of his
liberty without due process of law"
On the other hand. it is contended b.
the plaintiff in error. that these questions
are not now open for discussion, as they
have all been settled by the Supreme
Court of the United States and as that
court is the only one which can. which
has the power to settle finally the queS-
ton Of the conStltutionalty of an act of
congress, all other courts are bound t.
aequiesce in their decision. 1t is not, of
course. claimed by the plaintiff in error,
that the act of congress in question has
been before that court for consideration
but it is contended, that an act passed by
congress Feb. 18th, 1893, 0st L. S. Stat.
at large, 3Vz J contains provisions not
dlstinguishable in principle from those of
the act of Sept. 18th, 1850, and that that
court has decided this act to be valid and
obligatory. We do not understand that
the two acts are in all respects alike in
principle, or even similar The act of
1893 provides for the surrender of fngi-
tiyes from justice, and also fugitives from
labor and SO far as it relates to the lat
ter description of persons it is similar to
to the act Of 1850. But the two acts diff
fer essentially in the manner in which the
surrender is to be effected. BY the form
or. the person to whom the service or
labor was due, was authorized to seize or
arrest the fugitive, and to take him before
any judge of the circuit or district court
of the United States, residing or being
within the State, or before any magistrate
ofacomty, city, or towncorporate, where
III such seizure or arrest was made, and
upon proof to the satisfaction of such
Judge or magistrate, either by oral testi-
mOny or affidavit taken and certified by
a magistrate of any such State or Terri
tory, that the person so seized owed ser
vice or labor under the laws of the State
to the claimant it became the duty of
the Judge or magistrate to give certiti-
cate thereof to the claimant his agent or
attorney. which was sufficient warrant
for the removal of the fugitive to the
State or Territory from which he escaped
1t will be observed that the alleged fugi-
tive was to be taken before some Judge
of the circuit or district court Of the I.
S.. or before some State magistrate, who
decided upon the question of the surren-
der Of the fugitive to the claimant. upon
proof to be submitted to him. lie had
the power to weigh the testimony and to
decide upon its suf1iciency. The act Of
Sept 18th, 1850 differs from that of 1893
in two essential particulars. BY the
former certain officers, called commission
ers. are authorized to make the surrend-
err and give the certificate. and the teSti-
monv t. show the fact that the alleged
fugitive owes service or labor. and that
he has escaped, is not to be weighed by
the commissioner, but has an effect given
to it by the act independent entirely of
the opinion of the commissioner III re-
gard to its sufiiciency. The 10th section
OF the act provides. that when any person
held to service or labor in any State or
Territory, or in the District OF Columbia:
shallescape thercfrom. the party to whom
such labor or service shall be due, or his
anant ar attorney MAJ, aDnly To any court