New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1859-06-27

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tive from the State of Mississippi, where be stand
charged with having committed the crime of arcen1
Upon this affidavit the prisoner was arrested, ant
without trial or examination, committed to await
requistion from the Governor of Mississippi, unde
the 65th section of the Revised Statutes of this Stat
relative to criminal proceedings The constitution
atty OF this law is expressly denied by the prisone
in his application for the ha6eas corpus and Il ther.
fore becomes my duty to pronounce upon its VALIDITY
am fully sensible of the delicacy Of this duty, yet
is one which the law makes it imperative upon me
discharge So :
The second section of the fourth article of the Cor
stitution Of the United States, is in the folowin
words:
"a person charged in any State with treason
felony, or other crime who shall fee from Justice
and be found in another State, SHALL on demand q
fed BE- delivered up to Be removed to the State hav
ing jurisdiction OF the crime. No person held to IL
Dor OF service In one State under the laws Thereof
escaping into another shall, in consequence Of an!
law regulation there, be discharged from such ser
vice or labor but shall be delivered up to the party 1
whom such service or labor may be due"
In the celebrated case Of Pregg vs. Commonwealth
Of Pennsylvania, 18th Peters Reports pages $50
6ll Gil and 6l8, Mr. Justice Story in delivering tn
opinion Of the Court, says:
There are two clauses in the Consultation mo,
the subject Of fugtves, which stand in juxtapositoi
Nth each other, and have been thought mutually t
second and fourth articles OF that instrument"
Commenting ON the last clause in relation TO fnpi
tives from labor, Judge Story says its true design wa
to guard against the doctrines and principles preya
lent IN the non-slayehoding States, by preventing
them from intermeddling with, or obstructng, Of
abolishing the rights Of the owners of slaves, The
clause manifestly contemplates the existence of DO
sitive, unqualified right on the part of the owner ot
the slave, which no State law regulation can in any
way qualify, regulate control restrain The slave
is not discharged from service or labor in consequence
/ OF any State law or regulation.
In 1893, Congress passed act in order to carry
into effect the provisions Of the second section of the
fourth article of the Constitution and Judge Story,
in commenting on this act, says:
10 general sense this act may be said to cover
the whole ground of the Constitution both as to f-
gtives from justice and fugitive saves-that covers
both subjects in its enactments not because it ex
hausts the remedies which may be applied by Con.
gress to enforce the rights if the provisions of the act
shall il practice prove not to attain the object of the
Constitution, but because it points ont fully all the
modes Of attaining those objects which Congress, i
their discretion, have as yet deemed expedient Or
proper to meet the exigences Of the Constitution
II this be so then it would SEEM upon just principles
Of construction that the legislation constitutional
would supersede all State legislation upon the same
subject, and. by necessary implication prohibit IT,
For If Congress have constitutional power to regulate
particular subject and do actually regulate Il in
given manner and in certain FORM it cannot be that
the State Legislatures have right to interfere and
as it were BY way of compliment to the legislation Of
Congress, to prescribe additional regulations, and
what they may deem auxiliary provisions, for the
same purpose. In such case, the legislation of
Congress- in what it does prescribe manifestly ind
Gates that it does not intend that there shall be apy
further legislation to act upon the subiectmatter
Its silence to what it does not do as expressive
Of what its intention is the direct provisions made
BY it. '--''-~
This doctrine was fully recognized by this Court in
the case of Houston Us. Moore, 9Th Wheatons Re.
ports II and ~, where 1t was expressly held that
where Congress have exercised power over par
ticuar subject given them by the Constitution # ia
not competent for State legislation to add to the pro
visions of Congress on that subject for that the will
Of Congress upon the whole subject is as clearly esab
shed BY what it had not declared as by what it has
expressed.
So, in er parte Joseph Smith, McLean's Reports,
l29 and $50, where the party had been arrested on
demand of the Governor of Missouri on the Governor
Of Illinois, on the charge of being fugitive from jus.
tee ne being charged with being an accessory before
say in reference to State legislation on the subject Of
the surrender Of fugitives from Justice:
It may be that the Legislature of Illinois appre
ciating the importance Of the proper execution of
these laws, Chat is, the act of Congress) and the
State law making it the duty of the Governor to obey
and doubling whether the Governor could be punished
for refusing to carry them into effect deemed it pru.
dent to impose it as duty, the neglect of which
would expose him to impeachment If it intended
lu,
Peters, Pregg cs. Commonwealth of PENNSYLVANIA.
GIL" '''
And in the case of Van Shock, which came before
Judge Morgan of the Second District Court Of this
city, some time SINCE the identical question now be.
fore this Court was presented his Honor after eabo
rate argument and most mature consideration, dis
charged the prisoner the express ground that the
legislation Of Congress upon the subject was the su.
preme and paramount law of the land and that it
not competent for State legislation to add to the
provisions that Congress had made on the subject.
So, in the recent of the United States on the
relation of Ssord Marshal of the United States u.s.
Laeslow, Sheriff, which came before Judge Leavt, in
Ohio, it was held that the laws of Congress were the
supreme law of the land, anything in the State laws
to the contrary Notwithstanding IN that case it viii
be remembered that the United States Marshal had
made several arrests for violation Of the provisions
of the fugitive slave law who in turn were overpow
cred, and arrested and imprisoned under process reg
uar and legal according to State laws. That learned
Judge, in his elaborate and welconsidered opinion,
says, Of the rights Of the Marshals:
Having the prisoners thus in lawful custody, they
had undoubted right to all the force necessary
to retain them in custody and in of an open,
undisguised attempt to rescue them by force thew
would be justified in killing the assailants, if that
were necessary to retain possession Of their prisoners
and such killing clearly would not be crime against
the laws OF Ohio"
Such is the language of that eminent Judge, in a
case where the Marshals were oyerpowered by the
Sheriff and his posse, who were acting under pro-
cess issued under State law.
And this further clearly and forcbly illustrates
the doctrine, that where given matter is entrusted
by the Constitution to the Congress of the United
States and Congress actually egislates on that sub
ect that legislation is supreme and that the States
have no authority or power whatever to make any
regulations on that subject. The legislation of Con
gress is supreme, and etfectualy supersedes and
prohibits all legislation the subject as if it were
expressly declared in the act of Congress- For if
the States can add any provision in aid of an act of
Congress, they may also, the same principle legs
late in opposition to the same and thus subvert the
very foundations and powers Of the General Govern
ment itself.
Such being the case, we think 1t wise and prudent
to hold that where power and authority are given by
the Constitu' # the United States to Congress to
legisate on sven subject, and Congress actually
does legsate on that subject, the States are as effect
nay prohibited from legisating on that subject, as if
u were 80 declared in the law or Constitution OF the
United States. - VIZ
The prisoner, therefore, not being in custody under
and by virtue of the provisions of the act of Congress-
1t follows, that his detention is not according Ia tbe
supreme law of the land and that he is Consequently
entitled to be discharged.
In coming to this conclusion, the Court has mt |
overlooked the fact, that, in some instances. those
who are fugitives from justice in other States NAV
escape. But considerations of this kind are for the
aw.making power and not for the judiciary, whose
1nty It is to expound and enforce the law as they
ind it written.
Indeed, the Constitution of the United States, Ar