The Cass County Republican. [volume] (Dowagiac, Mich.) 18??-1880, 1861-02-21

his chattel by the bail given, and, if
he succeeds at the hearing, the State
pays the costs. In the view of the
matter taken by the majority of the
committee, the only question of consti-
tutional authority arising upon this
statute is as to the legal right of State
court or judge to issue or allow the writ
of ha6eas corpus, the trial of questions
of fact by a jury and the appeal author
lied being only incidents, carefully
guarded, of such alleged legal right.
1t is an extraordinary feature of our
jurisprudence that while, for the trial Of
case involving but six cents, jury
and an appeal are allowed, yet that no
provision has been made in case involv-
ing the liberty of a citizen, or the pos
session of child, for either, except by
this law of 1855. An independent
State must surely have the power so to
provide in any or all cases, and that it
has been done by this law can consti-
tute no legal objection to it. 1t is be-
lieved that, instead of the supposed
lurking intent to convert the hearing
on the writ into proceeding to regu-
late the rendition of persons escaped
from service or labor being found in
this law, We can only, in fact and in
law, find summary proceeding, strict
ly limited to the object declared in the
title of the act -ssJ r. sssaaa
The Pennsylvania statute of 1925,
before considered, and the New York
statute of 1880, which provided for the
arrest of fugitive slaves in a manner in
some respects different from the law
of Congress, and for suit similar to a
replevin suit by the negro for his free
dom, suspending during its pendency
all proceedings for his recapture or re-
moval, even after a finding that he was
slave, and the granting of certificate
for his rendition under the act of Con-
gress of 1893, have been declared un-
constitutional and void. They were
so declared before 1855, and our prede-
cessors appear to have taken care to
avoid even a seeming conflict with the
judicial and extra,judicial opinions de-
clared in making these decisions. Our
law, instead of being in conflict with
these decisions, as has been often as
serted, appears to be in entire conformi-
ty to them. 1t ought, if for no ether
reason, to the opinion of majority of
the committee, to remain upon the stat
ute books as monument of the wise
moderation of the Legislature of 1855
The clause of the Federal Constitu-
ton affirming the right OF the writ of
ha6eas corpus has been already cited,
and the. construction given to this
clause by the statute in question APP
pears to be not very different from that
given in the year 1853 by the Supreme
Court of the United States, in the case
of Ableman vs. Booth, reported in 81
Howard's Reports, p. sos. In decid
ing that case the court say, am ong 9th
er things:
"We do not question the authority
of a State court or Judge who is au-
thorized by the laws of the State to
issue the writ of hdbeas corpus, to issue
it in any case where the party is i'm
prisoned within the territorial limits,
provided it does not appear when the
application is made, that the person
imprisoned is in custody under the au-
thority of the United States. The
court or Judge has a right to inquire,
in this mode of proceeding, for what
cause and by what authority the pris-
oner is confined within the territorial
limits of the State Sovereignty. And
it is the duty of the Marshal, or other
person having the custody of the pris-
Oner to make known to the judge or
court, by proper return, the authori-
ty by which he holds him in custody.
This right to inquire by process of
ha6eas corpus, and the duty of officers
to make return, grow necessarily out
of the complex character of our gov
eminent, and the existence of two dis
tinct and separate sovere;gnties within
the same territorial space, each of them
restricted in its power, and each, within
its sphere of action prescribed by the
constitution of the United States, in
dependent of the other"
i 1t has been already shown that by
necessary construction of the act OF
1855, with the law regulating the writ
of hdbeas corpus, the writ allowed by
the former would be authotized in any
case where it should appear that
the prisoner was held on valid pro-
cess and conceding, as the majority
of the committee do, that under the
decision in Prigg Us. Pennsylvania, the
owner of a fugitive slave has right to
recapture him without process in free
State, it follows that, in case it appears
from the petition for the writ that the
prisoner is claimed as fugitive slave,
it must also appear by statement on
oath that he is not a fugitive slave, Oh
else that the claimant has no right to
hold him, before the writ can issue.
The necessary construction is, that all
free persons not legally arrested, and
claimed as fugitive slaves, shall be enti
E tied to the benefits of the writ.
But it is urged that the sections pro
posed to be repealed may be under
stood in a broad sense, bringing them
4 in conflict with the adjucations Of the
courts and the constitutional enact
ments of the general government. Ii
is not. believed that they will bear sucf
a construction, for reasons alread,