Page:Unconstitutionality of the Fugitive Act.djvu/23

 will have fled, sorrowing away forever, leaving the long train of coming generations to mourn her flight!

But let us hope that this destiny may not await us!&mdash;That among the inscrutable ways of Providence, some one may be opened by which this cup will pass from our lips. Let us maintain to the last some hope that liberty may not be entirely destroyed&mdash;that the cause of humanity may not entirely fail! And though the clouds are gathering faster and blacker above us, we are not altogether without reason for such a hope! For a number of years past there has been another reaction going on in this country against the influence of the slave power. And though the tide has ebbed and flowed&mdash;though in the actual conflicts, that power has retained possession of the battle field, yet the reaction against it has steadily increased and accumulated strength until the present day. The freemen of the North who have long reposed in conscious strength, with a generous forbearance towards the wrongs and insults of their deadly foe, have at last become aroused by provocations that could not be borne. They are marshaling their hosts for the coming conflict, between the two great antagonistical elements, liberty and slavery, that is to settle which shall finally fall before the other.&mdash;The trampling of the gathering hosts is already heard,&mdash;the murmuring of the rising storm is wafted upon every gale. the North is snapping asunder the bands that have bound it in subjection to the slave power, as Sampson broke the withs of tow! The last link that binds it, is the judicial sanction that power has received! Let that be broken, and the people are free! Can it not be broken? Can this great want of the public heart not be satisfied? Can we not have one decision in all this land, that shall vindicate liberty and law? I could almost believe that the angels in heaven, would bend forward over its battlements in eagerness to hear such a decision! That unborn generations would anticipate their time of life, and listen from the great womb of futurity, to the announcement of such a decision. But whether these things would be, or not, this I know, that it would be received by all the friends of humanity and law throughout this land, with such a thrill of heartfelt joy, as was never felt by a people before. Their hearts would be filled with new hopes,&mdash;hopes that this would be but the beginning of a more glorious end. hopes that there is to be a return to the true principles and wise policy of our fathers; that the Cosntitution as it stands is to be vindicated and maintained,&mdash;that Courts are to be places where liberty is favored & human rights protected, and not where judges are to exercise their ingenuity, to evade & overturn the great safeguards of the Constitution and trample on the liberties of the people! Their hearts would be filled with new and glorious hopes, that this Temple of Liberty, which our fathers builded, is to be purified. That the traffickers in the blood and bones of immortal man, shall be driven from its sacred precints; and that with a broad continent for its broad foundation, and the blue heaven that bends above us for its arch, it shall be inhabited by one great band of brothers, with no spot where the darkness of bondage shall remain,&mdash;but that all over, from ocean to ocean, and from the eternal ice mountains of the north, to the burning zone, it shall be illumined by the light of liberty, as the Celestial City, is lighted by the glory of God!

I am aware that I owe an apology to the Court and to all engaged in the case, for occupying their time so long. The only excuse I can offer, is the vital importance of the question, or at least my sincere conviction of its importance; and the fact that we were obliged to meet, and overcome if possible, the current of decisions, which, so far as they were of any force, has been against us. And thanking the Court most earnestly, for its kind attention and indulgence, I have finished what I had to say.

[ARGUMENT OF DIST. ATT'Y SHARPSTEIN. WEDNESDAY, MAY 31&mdash;10 A. M.

Mr. replied to Mr. 's argument.&mdash;We give the synopsis of his argument&mdash;which consisted chiefly in reading authorities&mdash;as furnished by himself for the press.

Mr. said he had noticed in an evening paper that the name of Judge Miller was mentioned in connection with his own, in an article which related to these proceedings. In justice to Judge Miller he would say that he had held but one conversation with him within four weeks, and that was had since these proceedings were commenced, and that no allusion was made by either party to this proceeding, nor was the subject of Habeas Corpus mentioned by either the Judge or himself.

He then read the provisions of the Revised Statutes, and claimed that a State Judge or court could only obtain jurisdiction to hear, determine, remand, or discharge upon Habeas Corpus in cases where the application, writ and service were in strict conformity with the provisions of the Statute, and that the provisions of the common law were abrogated so far as they conflicted in any way with these Statutory provisions. That the appearance of parties could not be construed as a waiver. That the order of the court was either valid or absolutely void, R. S., Chap. 124, II Kent's Commentaries, 26. In support of the sufficiency of the warrant of commitment he cited 1 Hill, 377, Wharton's Precedents 502.

He then proceeded to notice the points raised by counsel upon the constitutionality of the Fugitive Slave Law. They were the same with those raised in the Simms case, by Mr. Rantoul, upon which the opinion of commissioner Curtis, and of the supreme court of Massachusetts had been delivered, and published in the Law Reporter, 1852. He submitted to the court that the first point raised by Mr. Rantonl, in the Simms case, might have more or less weight in that case, and yet have no force when applied to the present case. That the law might be unconstitutional in that respect, and still valid in other respects.&mdash;If so, the question whether the power which the commsissioner is called upon to exercise under the act of 1850 be proper or improper, does not arise in this case. Under the act of 1850 the commissioner acquires the power to hear and determine a case arising under that act, but his power to arrest and hold to bail offenders against the laws of the United States, is given by the act of 1835, 5 R. S. At Large, 516, and it is by virtue of the latter act, that he held this Relator to bail. But he would not urge this point, as he considered the constitutionality of the act of 1850 in this respect settled by the adjudications of the courts, and cited the opinion of the supreme court of Massachusetts in the Simms case.

In reply to the point raised by the counsel denying the power of congress to legislated upon this subject, he cited 1 Johns Rep. 67, 5 Serg. and Rawle 62, 12 Wend. 311, 2 Pick 11, 16 Pet. S. C. Rep. 539.

The act of 1793 was subject to all the objections raised against the act of 1850. Under that act Magistrates and Justices of the Peace were authorized to exercise all the power with which commissioners are now clothed, and the supreme court is the case of Prigg vs. Commonwealth of Pennsylvania, held that these Justices of the Peace might properly exercise those powers. But the Justice is not authorized to give a trial by jury, nor is the examination provided for in that act, free from any of the objections which are raised against the act of 1850. The judicial functions exercised by the comissioner in the extradition of fugitives from labor, are not essentially different from those exercised by the Executive of the State in the extradition of fugitives from justice. And it would be just as proper for the Executive of the State to reply that he would not deliver up a fugitive form justice, on the ground that the State demanding him would not give him a trial by jury, as for the State authorities to reply to the claim made for the delivery of a fugitive from labor, that the State from whence he fled, has not provided a trial by jury for him, or that he will be unable to obtain it if delivered up. It is no valid reply to either demand, and has just as much force when applied to the one case as it has when applied to the other. In conclusion he held that the decisions of the courts covered every question reaised by the Relator in this case, and that all parties are bound by them alike.

Mr. replied in a brief but forcible speech, sustaining the positions already taken by Mr..

Mr. followed, reviwing the authorities cited by Mr., and contending that instead of overthrowing the positions he had taken, they sustained them.

At the close of his remarks Justice announced that he would hold the subject under advisement for one week, and then deliver his opinion and make an order in the case.]

OPINION OF HON. A. D. SMITH,

Associate Justice of the Supreme Court of the State of Wisconsin. WEDNESDAY, JUNE 7&mdash;11 A. M.

On the 27th ult., application was made to me by Sherman M. Booth, the petitioner, for a writ of Habeas Corpus, to be directed to Stephen V. R. Ableman, who it was alledged, restrained the petitioner of his liberty.