Page:Unconstitutionality of the Fugitive Act.djvu/31

Rh blow, the complete prostration and over;brow of the State sovereignty. Other illustrations might be given to illustrate the danger of engrafing a legislative power upon judicial, by implication. This was tried at an early day, and by the same course of reasoning, common law jurisdiction was claimed for the courts of the United States, and power of legislation over all common law subjects claimed by implication in Con2ress. The alien and sedition laws were chiefly defended on these grounds.

On the contrary, Chief Justice Taney, in his dissenting opinion, though he admits the right of Congress to legislate, but does not argue itn thinks the compact peculiarly enjoins the duty upon the States.

Again, this case explicitly decides the claim of the owner to a fugitive slave to be a "case" within the meaning on the Constitution; hence it is a suit, not in admiralty, or equity, and hence at common law within the meaning the Constitution. It also decides the determination of claim to be a judicial proceeding, and bases the power of the federal government in the premises, upon the grant of judicial power, and the power of legislation is assumed to be incidental to it. All these paints, which are held to be res adjudicata, strike at the very vitality of the act of 1850 which attempts to confer such judicial power upon commissioners. Time will not permit a further review of this case. In my judgment, the opinion of the Chief Justice completely overthrows that of the Court, and so far as he attempts to argue his points, beyond doubt or controversy establishes the doctrine here contended for.

In view of the dissentient opinions of the members of the Supreme Beuch, in view of the discrepancy of opinion which has characterized all other decisions wherein the question has been raised and argued; in view of the fugitive character of the power here claimed by Congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, flattering now around the implication, then round an incident to find whereon it may rest is foot; in view of the alarm which has seized upon many of the State in consequence of the enormous power which it has called upon Congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the States and upon the great principles of human freedom; in view of all this, are are not justified in asking of the Supreme Court of the United States to review their decision as the majority pronounced it in the case of Prigg vs. Commonwealth of Penn

If after all, the principles of that decision shall be reaffirmed, there still remain fie great questions of trial by jury, the unauthorized delegation of judicial power, the exparte proceedings, without process, which change the status of the person whose liberty is attacked, and some others, untouched and undetermined.

We thus find ourselves without any authoritative judicial guide in relation to the act of 1850. The fundamental questions here raised, have, some of them, been controverted for some years, and those which it was the design to settle in the case just quoted, remain yet as fruitful subjects of bitter discussion, and discordant action; for it may be truthfully affirmed, that that decision has never been deemed satisfactory, but has often been called in question on both sides of the controversy. Other questions here presented have not been settled judicially, but as yet, every court and judge is bound to consider and determine for itself according to its best judgment.

What then is to be done Let the free States return to their duty if they have departed from it, and be faithful to the compact in the true spirit in which it was conceived and adopted. Let the slave States be content with such an execution of the compact as the framers of it contemplated. Let the federal government return to the exercise of the just powers conferred by the constitution, and few, very few, will be found to disturb the tranquility of the nation or to oppose by word or deed the due execution of the laws. But until this is done, I solemnly believe, that there will be no peace for the States or the Nation, but that agitation, acrimony and hostility will mark our progress, even if we escape a more dread calamity, which will not even mention.

However this may be, well knowing the cost, I feel a grateful consciousness of having discharged my duty, and full duty; of having been true the sovereign rights of my State which has honored me with its confidence, and to the Constitution of my country, which has blessed me with its protection; and though I may stand alone, I hope I may stand approved of my God, as I know I do of my conscience.

It becomes my duty: therefore to make the following order:

In, the matter of the Petition of for a Writ of Habeas Corpus, and to be, discharged from Imprisonment.

This matter having been heard upon the petition, and return to the writ issued herein, and the return of the respondent Stephen V. R. Ableman thereto, and having been argued by counsel; and there appearing no sufficient cause or warrant for the detention of the said Sherman M. Booth, and no sufficient reason being shown why he should be restrained of his liberty by reason of the premises, or of anything contained in the return to the said writ of Habeas Copus, or for any other cause; it is therefore hereby ordered, that the said Sherman M. Booth be, and he is hereby, discharged from he said imprisonment whereof he has complained, and that he go hence, and at large without day. A. D. SMITH, Associate Justice of the Supreme Court of the State of Wisconsin.

The questions presented by this record are of great importance. A citizen of this State, presented a petition to a Justice of this Court, setting forth that he was unlawfully deprived of his liberty, and praying that a writ of habeas corpus might be issued to bring him before the said Justice, together with the cause of his imprisonment, in order that he might be liberated, if, upon investigation, it should be ascertained that his confinement was illegal:—The writ was issued and served, and the prisoner brought before the officer; and such proceedings were there had that the prisoner was discharged. A writ of certiorari issued to bring the record of these proceedings before Court, in order to correct any error that might have been committed.

The first question which presents itself; is, whether the writ of certiorai can properly issue from this Court, in a case like the present. it is contended by the relator (Booth) but the writ ought not to have been issued, because we have no power to remand the relator back again to the custody from which he was discharged. But this, if true, would, as the matter appears to us, constitute no objection to our jurisdiction.

It would only show that, if we should be of opinion that the relator was improperly discharged, we should not have the power to give entire relief in the premises; not a simple reversal of the order of discharge, by this court, without remanding the prisoner, would enable the person from whose custody the relator was discharged to retake his prisoner. The Constitution of this State, (Art. 7, Sec. 3,) gives this court power to issue writs of "hebeas corpus, maudamus, quo warranto, certiorai, and other original and remedial writs, and to hear and determine the same." We held in the case of the Attorney General vs. Blossom, (1st Wis. R. 317) that this power was not granted to the Supreme Court merely to enable it to enforce the jurisdiction conferred upon it in other parts of the constitution, but, on the contrary. that this clause of the constitution contained a grant of power to the court. It follows that this court has the power to issue any of the writs enumerated, in any case proper for their is-sue, and to hear and determine hem.

It will hardly be contended that his is not a proper case for the exercise of this power. A judicial decision has been had, by force of which a person has been discharged from imprisonment, and those who have an into rest in having the imprisonment continued, as public officers or otherwise, and from whose custody he was discharged, have a right to the proper writ or process to bring the case before this court for revision. And the writ of certiorari is the proper one for that purpose. We therefore think that his objection of the relator is untenable.

The next question presented is, whether a Justice of this court has the power to issue, in vacation, a writ of habeas corpus, and make it returnable before himself at chambers. It is contended by the plaintiff in error (Ableman) that as this power is given by the Senate, (Rev. Stat. Chap. 124.