The Cass County Republican. [volume] (Dowagiac, Mich.) 18??-1880, 1861-02-28
NUMBER As.

other two Judges from whose letters We
have extracted, but he arrives at the
same point--the repeal and modification
Of these laws. These letters of course
are not cited as binding authority, but
as combinations from a high source of
the opinions of the minority of your
committee. ~ l-if'i 2
At this point in the report, the mi
nority of your committee have been
favored with having heard read on the
floor of this House the report of their
brethren of the majority, and we can
not in justice to the subject refrain
even now from noticing briefly some
points in the document in which we
consider most unfairly sustained. It
is endeavored by the majority to evade
the full force of the case of Prigg VS..
Pennsylvania, by a sweeping assertion
that all those portions Of the opinions
in that case which apply to the matter
now in issue were mere 06iter dictd, or
I" idle gable of the Judges" Now
we assert, without fear of successful
contradiction, that of the whole Court
who sat in that case, certainly seven
judges, possibly nine, though if JUS
tices Catron and Mckinley were pres
ent, they gave but a silent assent
agreed in the main, essential points,
that all ssJrisndly State legislation on
the subject of the restoration or re-
capture of fugititive slaves, was un-
constitutional and void. Judge Taney,
it is true, holds that the States may and
should pass laws to aid and assist in
carrying out the acts of Congress, and,
therefore, that the power of Congress
is not erclusive. But be holds, as do
the whole Court, that the States can
pass no act to impede or hinder the ex-
ecution of the provisions of the Consti-
tuition or the laws passed under it and
this may be seen at glance by refer
ring to the opinion of Mr.. Justice
Wayne, on page 636 of 18th vol. Peters
Rep. who sums up the views of all his
brethren and concurs wholly with
Judge Storey.
So, also. the majority attempt to
evade the force Of the ease of Jack
VIZ. Martin, IL Wendell, by saying that
the law of New York in review, in that
case provided for repleUin, and not a
ha6eds corpus. But, were it not for the
provision of the constitution in ques-
ton, the repleyin would be equally as
legal as the hd6eds corpus. The opin-
ion of the Court in that case, for the pur-
pose for which we have before referred
to it, is too clear and decisive to be
avoided in that way. '-.-
| And then the report lapses into .
rhapsody over the moderation of the
Legislature of 1855, in not enaeting a
much more stringent law. From such
modification may Heaven protect us
What kind of moderation it was, the
Committee on State affairs of this
House, of 1859, seem to have been fully
aware. See journal, page 527-'8. The
Committee of 1859 thought that the
law of 1855, if faithfully executed,
would prevent the delivering up ct f1->
gitive slaves. Now, under the excite
ment of the time, perhaps it is not
strange that gentlemen of that Com
mittee, who were not lawyers, should
sanction such an intent But shall we.
"who know the right, still the wrong
pursue" m
The majority report also takes the
ground that the fugitive slave act Of
1850 is unconstitutional in SO far as il
denies the writ of habeas corpus But
we ask if this were SO, does the law Of
1893 allow the ha6eas corpus, or do the
principles assumed by any of the seven
Judges in Prigg VS.. Pennsylvaniz,
under this act, or do the majority OF
the committee now, for the first time
decide that act to be unconstitutional,
and is not that act in force still? And
to tins connection the majority cite the
case Of Ableman VS.. Booth, 2l Howard
p. SOC, at sustaining their position, and
then extract from the opinion Of the
Court the following 80
"We do not question the authority
of State court or Judge, who u aat
thorized by the laws of the State to
issue the writ of ha6eas corpus, to Issue
it in any case where the party is inn
lprisoned within its territorial limits,
provided it does not appear, when the
application is made, that the person
imprisoned is in custody Bnder the an,
thority of the United States. This
court or judge has right to inquire;
in this mode of proceeding, for what
cause and by what authority the prison
er is confined within the territorial lin.
its Of the State sovereignty. And i
!, is the duty of the Marshal, or Other
person having the custody of the pris
oner, to make known to the Judge q
court, by proper return, the authorit,
J by which he holds him nj custody
J This right to inquire by process o.
, hd6eas corpus, and the duty of officers
. to make return, grows necessarily
E out Of the complex character of oul
government, and the existence Of two
: distinct and separate sovereigntiei
! within the same territorial space, each
: of them. restricted in its powers, and
each, within its sphere of action, pre-
D. Iscribed by the constitution Of the
United States, independent Of the other
D But, after the return is made, and ths
] State judge or court judiciaIly apprised
1 that the party is in custody under tn,
authority Of the United States, the,
: can proceed no further, They theI
e know that the prisoner is within ID,
' dominion and jurisdiction of another
a l<~< - - -+'r''"' Z"