Page:A Historic Judicial Controversy and Some Reflections (Gregory, 1913).djvu/10

188 suggestion that the right to issue it could not be lawfully delegated to a Court Commissioner.

This is really the height of legal absurdity; a party indicted under a statute which the court applied to holds to be unconstitutional is denied habeas corpus out of comity to the court into which the indictment is returned; and then, after conviction, is discharged on the ground that the law under which the conviction was procured is unconstitutional.

This seems preposterous to us now. But the ground on which the State Court proceeded in its final decision was that where a person is convicted under an unconstitutional statute, the judgment is void for want of jurisdiction. The court did not perceive the limitation, essential to the independance of federal authority, and now universally recognized, that where a person is in custody under federal process, the courts of the nation have a jurisdiction which is exclusive.

Writs of error were issued from the Supreme Court of the United States to reverse these two judgments; the first in October, 1854, to which due return was made; the second in June, 1855, to which the State Court directed its clerk to make no return, having by that time reached the conclusion that the Supreme Court of the United States had no appellate jurisdiction in the premises, and that the act of Congress purporting to confer it was unconstitutional. The Federal Supreme Court reversed both of these judgments.

It was argued for the government by that great lawyer, Jeremiah S. Black, then Attorney General of the United States. No counsel appeared for Booth, though he is said to have sent to the court a pamphlet copy of Paine's argument below and copies of the opinions of the Justices of the Wisconsin court.

The opinion was delivered by Chief Justice, Roger Brooke Taney, of Maryland. He had been appointed to this exalted position by President Jackson. The latter, in 1833, desired to secure the removal of the deposits of government moneys from the Bank of the United States. Taney was then Attorney General, and concurred in the President's views. William J. Duane, of Philadelphia, was Secretary of the Treasury. He declined to remove the deposits, the President dismissed him from the cabinet, and on the same day, September 23rd, 1833, appointed Taney in his place. The latter, three days later, made the necessary order. The Senate promptly