Anti-slavery bugle. [volume] (New-Lisbon, Ohio) 1845-1861, 1855-03-10
OPINIONS OF JUSTICE A. D. SMITH,
OF THE SUPREME COURT OF WISCONSIN DELIVERED
FEBRUARY 3D, 1855.

from fmpris nnent and in he matter n the like
petition Of Sherman NJ. Booth
The fact In the tho tdsss are essentially the
same, and so far as the observations, which feel
called upon to make, may be uttered, they will be
regarded MS applying to both, and therefore, for
the sake of convenience, reference will be made to
the Petition of Ryecratt only.
On the application of Sherman NJ. Booth Mt the
last term of the Court for writ of Habeas Corpus
no copy OF the indictment was presented, but only
copy of the warrant upon which he had been
arrested, which recited merely that he had been
indicted under the act of Congress of 1850, for
aiding in the escape of one Joshua Glover. This
was an ordinary Bench Warrant, to bring in de-
fendant to answer to an indictment found in the
u S. District Court, and it appeared to us that We
ought not, land indeed without an inspection
could not interfere with the regular action of that
Court but were bound to presume, that If the in
dictment, when at the proper time it should be
brought up for examination, failed to present
case Of which that court had jurisdiction, or
charged no offence at all, and that all such juris
dicton preiminarily within the proper scope
of the power of that Court. But now the case is
different, all these questions have been properly
urged, and without avail, and the petitioner comes
before us and shows, by the return of the officer,
that he has been pressed on to a conviction, and
sentenced to imprisonment and is now actually
imprisoned within this State and that the sole a,i-
thoriy therefor is transcript Of the record of such
conviction.
The first, the fundamental question which the
case presents, is. Has this Court the power to
enquire into the legality of this authority by which
the prisoner is held?
1t seems to me that the solution Of this question
is to be found in few simple elementary PROPOSE
tions, which require little o no proof or argument
to sustain them.
1t is the duty of the Government to protect and
secure the lights of its citizens, among which is
the right to liberty.
This duty of the Government, is to be meas
ured only by the extent of the individual right
and it is bound to provide means adequate to the
If the Government be complex, the means may
Re distributed and the obligations of duty divided
but not so as to fall short of the object to be ac
complished,
Ours is complex system, with distributed
powers, to each Of its parts constituting en-
tire sovereignty, and so, of course, in duty
bound rs a whole to furnish complete protec-
ton.
Whatever powers and duties are not dele
gated or assigned to one department or branch of
the entire sovereignty, must remain in the other.
If the one be made up of delegated, and the
other of reserved powers, the duties assigned to
the former, only be coextensive, with the pow
ers delegated and the duties of the latter, must
be commensurate with the powers reserved, and
these powers adequate to every emergency not
within tho scope of the former
powers, the State Government one of reserved pow
ers the former competent to act only within its
prescribed boundary; the latter exercising all the
functions of sovereignty which have not been
delegated to the former
The power to guard and protect the individual
libery of the CITIZEN is one of the powers reserved
to the States. 1t was never granted to the Federal
Government, Except in very few prescribed cases
which have no bearing upon the present inquiry
has never been claimed for it, but always conceded
to the States.
If therefore it is the duty of the State to guard
the individual liberty Of its citizens, it must neces-
sarily have the right and the power to inquire into
an authority by which that libertyis attempted to
be taken away. But the power to inquire includes
the power to decide. The right to demand by
what authority such imprisonment is attempted,
implies the obligation of the power imprisoning to
respond. The right to demand such authority on
the one hand, implies on the other the duty to
exhibit it.
Again, the States have delegated to the Federal
government the power to imprison their citizens in
certain cases, but in none other. So far then as
that government acts upon the powers thus dele
gated, the States cannot interfere to protect their
citizens but in every other they not only have
the power but it is their solemn duty to intcrpose
their. authority. AS the power by which the
Federal Government imprison is delegated
power it is bound to show in every case, when
it imprisons, that it is acting upon some pow
er delegated. 1t must be Nominated in the
bond"
The constitution of the U. S. is the deed of
grant, expressed by written charter, of all the pow
ers delegated to the Federal Government. The
States severaly retain all else of sovereignty limi-
ted only by the local constitutions prescribed by
the people Of each
Therefore, to me it is plain, that when the Fed
eral Government attempts to act In given case it
is bound to exhibit case within its prescribed
powers, for were it otherwise, it would involve
the assumption of inherent powers, and transcend
its character.
As the States delegated, and the Federal Gov
ernment took power, the latter is at all times an
swerable to the former and may oe required to ex-
hibit the deed by which it claims to do, refuses
to perform any given act, when so required by the
primary original authority.
In the constitution of the United States sound
policy required the incorporation of function by
which the government thus created might be such
in fact and hence be enabled to act upon individ.
uals in all the creative constituent sovereignties.
This could only be accomplished by the creation of
Ia judicial department., supreme and independent
within Its prescribed sphere whose process should
extend to every citizen. But in giving up this
vital element of sovereignty, the States carefully
guarded it, hedged it about with provisions which,
Il was supposed were impossible. They prescribed
its ertent in the words most carefully selected,
whose import could scarcely be mistaken, and
mind would rush. "The judicial power shall &c
tend to all cases in law and equity arising under
this constitution, the laws and treaties made, or
which shall shall be made under their authority"
The words ''ertend TO" might, perhaps, upon the
theory of liberal construction be held to be exclu-
sve in their import were it not for another provs-
ion of that instrument which will be presently no.
ticed But the very selection of the words Tex
tend to" when we consider the extreme caution
observed by the members of the convention which
framed the constitution, ought to admonish us
against rash assumption Of exclusive jurisdic'
ton. That which merely extends to particular
class subjects cannot upon any legitimate mode
Of Interpretation beconsdered as compromising
the whole Of such class to the exclusion of every
other power, Several powers may extend to :
given GLASS of subjects, Rpt one can comprehend
them all. The extension Of . power 70 Q snhjeo
by no means merged It eEclgsivey within such
power,