3 Wis. 1 | Wis. | 1854
Lead Opinion
By the Court,
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 was issued to bring the record of these proceedings before this court, in order to correct any error that might have been committed.
The first question that presents itself, is, whether the writ of certiorari can properly issue from this
It will hardly be contended that this 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 interest in having the imprisonment continued, as public officers or otherwise, and from whose custody he was discharged, have a right to the proper
The nest 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 statute, (Rev. Stat.,chap. 124, sec. 3) to “judges of the Supreme, Circuit or County Courts” only, a justice of this court has no power to issue the writ. The reason given to sustain this position, is, that at the time the act conferring this power was passed, there were no justices of the Supreme Court; that the Constitution of the State provided for the election of circuit judges ; and that by force of the Constitution they were to be judges of the Supreme Court for five years, and after-wards, until the Legislature should otherwise provide.
It is further urged in support of this position, that the provision in the Constitution providing for the organization of a separate Supreme Court, after the expiration of five years, (if the Legislature should see fit to establish one,) and the organization of the present court by virtue of this provision, show that the justices of the court should do no act which can come before the court for review; it being the intention of the framers of the Constitution and of the Legislature which passed the act regulating the manner in which the writ of Habeas Corpus is to be issued, that the present court should not sit in review upon any decisions made by one of its members ; thus avoiding what was thought to be an evil, while the Supreme Court was composed of the circuit judges.
The next question is, whether the writ ought to have been issued, it appearing from the petition of the relator that he was imprisoned by color of legal process issued by a Commissioner of the United States for the district of Wisconsin. It is insisted by the counsel of the plaintiff in error, that in all cases the general comity of courts which have concurrent jurisdiction, leaves the case to the court whose jurisdiction first attaches, and that such jurisdiction cannot be taken from the court by subsequent proceedings in any other court of concurrent jurisdiction. It is further insisted, that this rule applies on higher grounds to courts of the distinct jurisdiction of the States and the United States, and that the process and proceedings of commissioners form no exception to
It will not be denied that the citizens of the State naturally and properly look to their own State tribunals for relief from all kinds of illegal restraint and imprisonment. These courts are clothed with power sufficient for their protection, and would be recreant to their duty were they to refuse to exercise it upon all proper occasions. We do not think the principle contended for by the plaintiff in error applies to a case of this nature.
The petitioner stated, in his petition for the writ, that he was restrained of his liberty by reason of a pretended warrant, a copy of which is annexed to the petition. By that it appears that Winfield Smith, acting as a commissioner of the United States, had, upon an examination of the petitioner for an alleged offence against the laws of the United States, ordered the petitioner to recognize with sufficient sureties in the sum of two thousand dollars, for his appearance at a term of the District Court, to be held at Madison on the first Monday of July then next, and that, in default of the recognizance, the marshal was commanded to deliver him to the common jail, <fec. The warrant
In order to show that the ease is within the principle in question, it must appear that the District Court of the United States had the case pending before it which was made by the issuing and service of the writ of Habeas Corpus ; that the question of the legality of the imprisonment of the petitioner was then pending before that court; and this the facts in the case do not show. At most, they merely show the case of a person arrested upon a charge of having committed an offence, and an imprisonment in order to compel his appearance before the court which has the power to try him. In such a case, the investigation of the legality of his imprisonment does not necessarily involve an inquiry into the question of the guilt or innocence of the prisoner, nor of his liability to be held to answer for the alleged offence.
But if the conclusions we have arrived at are correct, the jurisdiction of no court is disturbed by issu
In Sims’ case, (7 Cush. R. 285) the Supreme Court of Massachusetts saw no objection, on this account, to issue a writ of Habeas Corpus to bring before the court a prisoner in the custody of a marshal of the United States, under a'warrant issued by a commissioner of the United States, though the court refused the writ for other reasons. See also 7 Cowen's R.. 471; 10 Johnson's R. 328.
It was insisted by the counsel for the plaintiff in error, that our statute (Rev. Stat. chap. 124 sec. 28) interposed an insurmountable objection to the jurisdiction of a State officer in a case like the present, because it provides that the officer shall, although the commitment be irregular, remand the prisoner to custody, or hold him to bail, if it appears from the testimony offered with the return that he has been guilty of an offence. In such a case it is insisted that the officer acts as an examining magistrate, whose duties he cannot discharge if the offence proved is one of which the United States courts have exclusive jurisdiction. But we think that whatever difficulties this section of the statute may create as to the proper course to be pursued by the officer, in a case of that description, it should not be construed so as to deprive a State court or officer of the power to issue the writ in all cases where a citizen of this State is held in custody on the ground of an alleged violation of a law of the United States. The same difficulty would
There being no valid objection to issuing the writ and bringing the prisoner before the officer, the question arises, whether the discharge of the prisoner was in accordance with law. The return of the marshal to the writ of Habeas Corpus sets out substantially the same reason for the detention of the prisoner as that stated in the petition for the writ above given, so that there is no necessity for re-stating it. The first objection taken to the return, is that it does not set forth a valid warrant. Upon this subject we fully concur in.the opinion of the justice of this court who discharged the prisoner. The warrant fails to state any offence under the act of Congress in question, inasmuch as it does not show for what purpose Joshua Glover, therein named, was in the custody of the deputy of the marshal. He may have been in custody pursuant to the act of Congress approved September 18th, 1850, and not have been arrested as a fugitive from labor. The warrant does not therefore state that the petitioner aided, abetted or assisted a person who was arrested as a fugitive from labor, to escape from custody. This is essential in order to constitute an offence against the act of Congress. We are aware that it is sufficient in a warrant to state the offence, without that particularity required in an indictment; but still there must be at least a general statement of the offence, in order to justify the arrest.
It is further objected to the return of the marshal,
On the other hand, it is contended by the plaintiff in error that these questions are not now open for discussion, as they have all been settled by the Supreme Court of the United States ; and that as that court is the only one which has the power to settle finally the question of the constitutionality of an act of Congress, all other courts are bound to acquiesce in its decision. It is not of course claimed by the plaintiff in error that the act of Congress in question has been before that court for consideration, but it is contended that an act passed by Congress February 12th, 17 93, (1 U. S. Stat. at large, 302) contains provisions not distinguishable in principle from those of the act of September 18th, 1850, and that that court has decided this act to be valid and obligatory. We do not understand that the two acts are in all respects alike in principle, or even similar. The act of 1793 provides for the surrender of fugitives from justice, and also
It can hardly be claimed, we think, that any adjudication upon the act of 1193 could decide all the questions involved in the act of 1850. But we will examine the cases referred to by the counsel for the plaintiff in error, upon this point. The act of 1193 received a very elaborate examination in the case of Prigg vs. Commonwealth of Pennsylvania, 16 Peters R. 640. The question, however, involved in the record before the court, was simply whether Prigg, the
In the case of Moore vs. Illinois, 14 How. R. 13, the court states what was decided in the case of Prigg vs. Penn., and among the questions to be decided in that case was this : “ That the government is clothed with appropriate authority and functions to enforce
These cases are equally silent upon the question (a most important one) raised in this case, as to the right of a person claimed as a fugitive from labor to have the facts, which must be proved befoi*e he can be surrendered to the claimant, tried and decided by a jury. It is true that the act of 1793 provides for the surrender of the person claimed as a fugitive, without such a trial and decision, and it is said in substance by the Supreme Court of the United States, in the cases of Jones vs. Van Zandt and Moore vs. Illinois, that the court did decide in the case of Prigg vs. Penn. that the act of February 12th, 1793, was constitutional. But upon looldng at that case, we find that the question of a trial by jury to determine the facts of the case, was not raised by the record and was not discussed by the court in giving its opinion. We think it would be most unjust to tliat court to hold that it has decided questions which its judges have not even discussed, and which have not even been before it for adjudication.
We are of opinion, therefore, that, whatever may be the duty of this court in relation to the question of the power of Congress to provide by law for the surrender of fugitives from labor to the persons to whom their labor is due, we are not at liberty to con-
It becomes, therefore, our duty to decide whether so much of the act of Congress of September 18th, 1850, as provides that certain officers called commissioners shall decide the questions of fact which must be proved, before the surrender of the alleged fugitive can take place, is valid and obligatory. We think that we are also called upon to decide whether the proceedings provided for in the act for establishing judicially the fact of the escape of the alleged fugitive and the fact that he owes service or labor, are in conformity with the Constitution of the United States. These questions are most grave and important; we would, that we could avoid them ; but they are forced upon us, and we are not at liberty to refuse to consider them.
We are of opinion that so much of the act of Congress in question, as refers to the commissioners for decision, the questions of fact which are to be established by evidence before the alleged fugitive can be delivered up to the claimant, is repugnant to the Constitution of the United States, and therefore void for two reasons: First, because it attempts to confer upon those officers judicial powers ; and second, because it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury, which we think is given him by the Constitution of the United
But, however this may be, we are not aware that the authority to vest any portion of the judicial power in any tribunals created by itself, except those mentioned in section 1 of article 8 of the Constitution, is claimed for Congress by any one, save in the single instance of judicial officers for the Territories belonging to the United States, and for the District of Co-umbia. We think that the duties performed by the commissioners, under the act in question, are judicial in their character ; as clearly so as those performed by a judge in the ordinary administration of justice.. He is obliged to decide upon the questions presented, judicially, and- to give a certificate to the person claiming the alleged fugitive, which authorizes his transportation to the State from whence he is alleged to have escaped, or withhold it, as- he shall think proper in view of the evidence submitted for his consideration. It is true that the act, by providing that the record made in the State from whence the alleged
Ahd we think it equally clear that the Constitution is violated by withholding from the person claimed, the right to a trial by jury before he can be delivered, up to the claimant.
The fifth article of amendments to the Constitution of the United States provides, among other things, that “no person shall be deprived of life,'liberty or property, without due process of law.” Chancellor Kent in his commentaries (2 Kent. Com. 3) says : “ It may be received as a self-evident proposition, universally understood and 'acknowledged throughout this country, that no. person can be taken or imprisoned, or disseized of his freehold, or liberties or estate, or exiled, or condemned, or deprived of life, liberty or property, unless by the law of the land, or the judgment of his peers.
“ The words £ law of the land,’ as used in Magna Charta in reference to this subject, are understood to mean'due process of law ; that is, by indictment or presentment of good and lawful men ; and this, says Lord Coke, is the true sense and exposition of these words.”
The commissioner is obliged, if his identity is proved, so to adjudge, and the certificate which is given to the claimant is given because the commissioner has so adjudged. Moreover, the commissioner can only give, the certificate to the claimant, who must be the person to whom the labor or service is due, his agent or attorney, and it is given to him for that reason. It is-not material to enquire what the condition of the person will be when he has been taken to the State where the service or labor is said to be due. ITe may regain his freedom, but if he does, it will be by force of the law of- the State, and not by virtue of the act of Congress under consideration ; for under that he has been adjudged a slave, and by force of it he has been taken as- a slave by the person adjudged to be his ownei, his agent or attorney, from the State where he was ki rested, to the State from which he is alleged
Dissenting Opinion
Cbawfoud,
Justice, dissenting. Inasmuch as I cannot concur with my brethren upon all of the points embraced in- the opinion which has. just been delivered by the Chief Justice, I feel called upon to designate in writing the points upon which I dissent.
That either of the justices of this court has authority to grant the writ of Habeas Corpus when a prop-per case for the issuing of the writ is laid before him by petition, I do not entertain -any doubt; but whether the mandate of either, of us in the form used in this case, and authenticated or tested only b.y the sign manual of the justice granting or allowing it,' without the signature of the clerk, or the seal of a court, is such a writ as- is contemplated by the statute, (chap. 124, secs. 6, 7, 41 and 42,) is not made a question in the present case, and may be of no importance here.
I agree with my brethren that the proceeding upon the return of the writ, and the decision arrived at by the justice before whom the hearing has taken place at chambers, may be reviewed in this court by means of a writ of certiorari.
I also believe, with the majority of the .court, that when a writ of Habeas Corpus cum causa has been directed to the Marshal of the United States, and he has by his return thereto set forth a writ or process, by virtue of and in obedience to which he claims to detain the person by whom or in whose behalf the writ of Habeas Corpus has been applied for, it is within the province of the State court or magistrate before whom the hearing is had, to look into the process by which the marshal justifies the detention, so far as may be necessary to enable the court or officer to determine whether the process is such as might have been issued by the tribunal from which it emanated, and Avhethef that tribunal had jurisdiction of the subject matter or offence set up in the warrant or process, but beyond this I cannot go. That we are authorized to examine into the nature of the process for this purpose, must, I think, be obvious, because without such an inquiry we could not determine whether really there be a. warrant, or writ, or not; and the bare return by the marshal that he detains by virtue of a process, would not be a compliance with section ten of our Habeus Corpus act, without
In pursuing this course, I do not perceive that the State tribunals yield anything which may be properly included in their rights or independence ; but, on the contrary, they thereby evince a desire to preserve a. clear distinction between subjects over which the federal courts have jurisdiction, and a/re in the exercise thereof.i and subjects beyond the jurisdiction of the federal courts, and over which the State tribunals have .
But the question of greatest moment, and a decision or opinion upon which is most desired in this case, relates to the constitutional power of Congress to enact the law of 1850, chapter 60, commonly known as the Fugitive Slave Law.
It has been zealously and ably urged at the bar, by the counsel for the petitioner, that the Constitution of the United States vests no power, either expressly or by implication, in Congress, to legislate upon the subject of the reclamation of fugitives from labor or service, but that the power of legislation upon this subject belongs "exclusively to the States, and that the clause in the Constitution of the United States concerning fugitives from labor, amounts only to a compact obligatory upon the several States, but grants no power to Congress. This is the view of the subject taken by my brother Smith, before whom the case was heard at chambers, who held the law in question to be unconstitutional and void, for several reasons.
The counsel for the respondent has, with marked ability, met and contended against .the objections to the validity of this law ; and from all the information which I have derived from the lengthy arguments in the present case, from the nature and history of the clause in the Constitution of the United States, in pur
In Houston vs. Moose, (5 Wheat. 48,) Mr. Justice Story, in speaking of the grant of powers to Congress by the Constitution, says : “A reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, except where the Constitution has, in express terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States.” He then proceeds to enumerate three classes of cases or instances in which the power of Congress is exclusive, and proceeds thus : “ In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only under the eleventh amendment of the Constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws ’of the State and of the Union are in direct and manifest collision on the same subject, those of the Union, being the Supreme lato of the land, core of paramount authority, cmd the State latos, so far, and so far only, as such incompatibility exists, must necessarily yieldT
But upon this subject I do not feel at liberty to advance reasoning or authority, because it has received the critical examination of many of the greatest and most profound judges who have adorned the courts óf this Union ; whose opinions and decisions are usually .received by us upon all ..legal questions as satisfactory if not conclusive authority, and especially -so because the question has been authoritatively decided by the Supreme Court of the United .States, the last
We are accustomed on most of the subjects mooted and discussed in this as in other courts of law, to consult the decisions of other co-ordinate courts upon the same or kindred subjects, and in relation to the constitutionality of congressional action .upon the clause concerning fugitives from service or labor, I deem it not -inappropriate to refer to several cases in which the power of Congress to legislate upon the subject has either been tacitly or expressly recognized or avowed and maintained. It may be remarked here that for the purpose of the present case, it is not important whether the power under -the Constitution vests in Congress alone, or in the several States concurrently with Congress, inasmuch as the Legislature of this State has never acted on the matter.
.The case of Glen vs. Hodges, (9 John. 67) was before- the Supreme Court of New York in- 1812. It was an action of trespass vi et armis, for seizing and taking the plaintiff’s negro slave, from the possession of the agent of the plaintiff in the State of Vermont, where he had been secured as a fugitive from service. The validity of the act of Congress- of February 12, 1793, wras not questioned, and the court in their opinion refer to the act, without suggesting a doubt of its constitutionality.
'In 1816, in the case of The Commonwealth vs. Holloway, (2 Serg. and R. 305) which was a Habeas Corpus returnable in the Supreme Court of Pennsylvania, sued out to procure the liberation of a female
In the State of Massachusetts the constitutionality of the law in question was made a point in 1823, in the case of The Commonwealth vs. Griffith, (2 Pick. 11) and the justices of the Supreme Court of that State were unanimously of opinion that the law was constitutional, although Mr. Justice Thatcher insisted that the fugitive should be seized by the process of law of the State where he is found. So also in 1836, In the case of The Commonwealth vs. Aves, (18 Pick. 139) the same court treat the act of 1793 as enacted in pursuance of the Constitution ; and as late as 1851, in the celebrated Thomas Sims case, (7 Cush. 285) the constitutionality of the fugitive law of 1850, the law to which objections are made in the case now before us, the Supreme Court of Massachusetts, after a very elaborate argument and examination of the question, again affirmed the power of Congress to legislate upon the subject of fugitives from labor or service, and without a word of dissent from any member of that learned bench,-declared the act of 1850 to be a constitutional enactment.
Another case in 'which the power of Congress to legislate upon this subject, and the validity of the act of 1793 were denied in argument, is the case of J'tele, a negro man, vs. Martin, (12 Wend. 311) where, in a very lengthy opinion of the Supreme Court of New York, as given by Mr. Justice Nelson, the act is held to be constitutional and valid.
In Prigg vs. The Commonwealth of Penn., (16 Peters 539) the constitutionality of the act of 1793,
Five years afterwards, in the case of Wharton Jones vs. John Van Zandt, (5 Howard, 215) the question was again urged in the same court, 'and Mr. Justice* Woodbury, in delivering the opinion of the court, disposes of the point whether the act of ’98 was repugnant to the Constitution, by saying, after a few remarks upon the subject“ That this act of Congress, then, is not repugnant to the Constitution, must be considered as among the settled adjudications of this court.” And again, in Moore vs. the People of the State of Illinois (14 Howard, 18) the doctrine of the case of Prigg vs. the Commonwealth of Pennsylvania, is reiterated, and declared to be “ that the government is clothed with appropriate authority and functions to enforce the delivery or claim of th’e
From these decisions I am led to view the subject as definitely settled, and the maxim stare decisis, as entirely applicable. I understand the Chief Justice to feel himself concluded by these decisions, so far as they declare the act of 1793 to have been the exer cise of a constitutional power by Congress to legislate, but that because they do not settle the question, whether the fugitive slave is entitled to a trial by jury, of the State where he is seized, and, because the act of 1850 confers certain powers on Commissioners appointed by the federal courts, which are claimed to be judicial, the constitutionality whereof has not been determined by the Supreme Court of the United States, he is at liberty to inquire upon these points, whether the act of 1850 is obnoxious to the Constitution.'
The force of argument which has been brought to bear, as well against as in favor of the constitutionality of the act of 1850 in respect to these questions, has, I confess, raised doubts, in my mind, but it has failed to produce that conviction which should justify a court, or Judge, to pronounce a legal enactment void, because unconstitutional, and I am therefore unable to concur in the opinion that this law is unconstitutional.
I shall briefly state my views upon these questions. The fourth section of the act of Congress of September 18,1840, provided that certain Commissioners appointed by the federal and territorial courts, shall have concurrent jurisdiction with the Judges of the Circuit and District Courts of the United States in their, respective circuits and districts within- the several States, and the Judges of the superior courts-
It is said, territorial judges are appointed under the power given to Congress by the second clause of
But it has been repeatedly held, that where, by an act of Congress, State courts or magistrates are authorized to perform acts of a judicial character arising out of the acts of Congress, they may lawfully do so if not prohibited by the State law.
Now if judicial power can be conferred by Congress upon others than courts or judicial officers known to the Constitution, it seems to me that it can make little difference whether the power be vested in a State court or officer, or in a commissioner or officer of the United States who is. not a judicial officer. In either case the power is vested in a tribunal or officer, not a court or judge, contemplated by the clause of' the Constitution referred to.
But there certainly is a degree of force in the objection that the power to hear and determine complaints and summary applications, which may and often do involve important rights of personal liberty, and require the exercise of much professional experience and wisdom, ought not to be vested in the class of officers who are known as commissioners of the federal courts, who hold their office at the pleasure of the courts; and although in ¡many instances gen-
Without further remark on this point, I proceed to the question of the right of the alleged fugitive to have the fact of owing service or labor ascertained by the verdict of a jury.
The right of trial by jury is highly and justly esteemed, and is expressly protected and preserved by our State Constitution; and it cannot be denied that this right extends to all persons within the State^ regardless of color, and to the fugitive from labor or slavery as to the freeman, in all that relates to or affects his life, liberty or property, subject to the several provisions of the Constitution of the United States. But suppose that a demand by the executive of any other of the States of this Union upon the Governor of this State has been made, to suriender any citizen, whether he be white or black, upon a charge of felony committed in the State from which the requisition.comes. It may be that, as in the case of an unfounded claim upon the labor and service of the alleged fugitive slave, the person demanded as a fugitive from justice ought not to be delivered over; and yet if the requisition be in due form of law, and accompanied by the proper evidence that the per son is charged with the offence, the right of trial of the fact is not afforded to him here, but he is apprehended, deprived of his liberty, and transported to another and perhaps a distant State for trial. Could this be done except by virtue of a provision of the Constitution, or a treaty ? There would seem to be no real difference between the demand of a fugitive
In either case there is a deprivation of personal liberty without the intervention of a jury, but it is considered essential to the complete enforcement and fulfillment of the constitutional compact, that a temporary deprivation should be permitted in the individual case, in order that the constitutional right may be secured. It is true, that in the case of a fugitive from justice, he is given into the custody of the officers of justice, with the beneficent presumption of the law in favor of his innocence, until he shall have been duly convicted ; while in the case of the fugitive from labor, he is placed under the control of his claimant, to be carried back to the State from which he is charged to have fled, with no presumption in favor of his freedom ; but this is, I think, more an argument against the policy and justice and humanity of the law, than against its constitutionality. A case might arise where, by false swearirig and conspiracy, a freeman, by the machinery of this law, might be snatched from his liberty and reduced to the condition of slavery, until, by a suitable proceeding, he asserted and obtained his freedom; but so, also, by similar means, an innocent man may be carried away charged with crime, and placed under .the necessity of vindicating his innocence in a distant State.
Upon the provisions of the Constitution concerning fugitives of both kinds, Judge Story, in his Commentaries on the Constitution, p. 677, sec. 1806, says: “It is obvious that these provisions for the arrest and removal of fugitives of both classes, contemplate summary ministerial proceedings, and not the ordinary
In Sergeant's Constitutional Law, chap. 33, p. 398, it is said: “ From the whole scope and tenor of the-Constitution and act of Congress, it appears that this fugitive is to he delivered up on a summary proceeding without the delay of a formal trial in a court of common law.”
Assuming that the framers of the Constitution had in view the cases of fugitive slaves only, and that their object was to secure the delivering up of such fugitives on claim of the owner or person to whom the labor is due, it would seem obvious that if a trial by jury may be insisted upon, the determination of the question might be protracted in various ways so as to defeat the very object of the Constitutional provision.
There is one point in this case, and, in my judgment, the only point essential to the disposition of the case; and it is that which relates to the validity of the commitment or process b}’ virtue of which the petitioner was detained by the United States marshal. It sets forth that at a certain time and place, in this State, the petitioner, Booth, unlawfully aided and assisted one Glover, held to service, &c., in the State of Missouri, under the laws thereof, being the property of one Garland, and having escaped from such service into this State, to escape from the lawful custody of the deputy marshal of the United States for the district of Wisconsin, who had then and there* taken said Glover into his custody by virtue of a warrant issued by the judge of the United States for the said
It does not appear from this- process that Grlover was committed to the custody of Mr. Cotton, the deputy marshal, uj)on claim of any person whatever, and for anything that appears, this same Grlover may have been committed by the district judge for some offence against the United States ; but the facts set forth in the process would not, in my judgment, constitute an offence within the twenty-second section of the act of Cóngress of 1190. The seventh section of the act of September 18th, 1850, makes it an offence to aid or assist a person who has, upon a proceeding unc|sr that act, been placed in the custody of a person legally authorized to detain him ; but the process in this case does not show that Grlover was so detained. He may have been a fugitive from labor, and yet he may not have been claimed, and if so, the aiding in his escape would not have been an offence under the act of 1850. I shall not pursue the subject farther, but shall rest content by saying that I concur with my brethren in holding the petitioner entitled to be discharged, because the commitment sets forth no just cause of detention,
When this case was originally before me, I gave to the questions involved in it all the investigation which the means then within my reach would permit. The conclusions to which I then arrived
One great aim of the founders of our government* (among others,) was, to secure beyond contingency personal liberty, and to protect and preserve, as fa^‘ as practicable, the independence and sovereignty of the respective States, (without whose agency such personal liberty could not be protected and secured) as far as was consistent with the practical efficiency of the federal government about to be organized. A mere glance at the history of the times, at the debates in the national convention that framed, and of the respective State conventions which adopted the Constitution, will suffice to convince us that the respective States were regarded as the essential, if not the sole guardians of the personal rights and liberties of the individual citizen. Mr. Justice Johnson, of the Supreme Court of the United States, in the case of Martin vs. Hunter's lessees, (1 Wheaton 362) says: “So firmly am I persuaded that the American people can no longer enjoy the blessings of a free government, whenever the State sovereignties shall be prostrated at the feet of the federal government, nor the proud consciousness of equality and security, any longer than the independence of judicial power shall be maintained
It is important to recur to the elementary prinei-pies on which our government is founded, more frequently, perhaps, than the apparently successful career of the Republic would naturally tend to move us. Nothing is more certain, than that “ eternal vigilance is the price of liberty,” and that “a frequent recur, rence to fundamental principles” is the only means of sustaining the government in its original purity, and of preserving the original land-marks established by its framers. The subjection of judicial decisions to elementary criticism, will never be denounced as audacious, but by those who are content to follow prece. dent, even though precedent overleap the law, and become the mere pretext for usurpation. To such tests ought those who make decisions, as well as those upon whom they may operate, to be willing to subject them. It should be remembered, that •“ error does not become truth by being often repeated ; nor does truth lose any of its force or beauty by being seldom promulgated.” Nor does vice become virtue by persistence in 'its practice; nor bad government grow better by acquiescence in its evils ; nor, where a people have adopted a written fundamental law, for the government alike of themselves and their rulers, does
The “rule of judicial order stare decisis,” is appre-cja^ec[ largegt measure of its value or importance, and will not be departed from on light or trivial grounds. When rights have become vested under ju. dicial decisions, and especially when the policy of personal transactions has been shaped under a long course of judicial determinations, courts and judges will hesitate long before they will disturb the order and establishment of things and transactions predicated upon them. Distrusting suggestions, however plausible, and doubting conclusions, however forcibly urged, they will pursue the diverging and unwelcome pathway with faltering step, and anxious distrust, until they are lost in the mazes of uncertainty, on the one hand, or, on the other, they emerge into the plain highway of truth, which all may pursue with confidence and safety. But to say that such decisions preclude investigation or review, is to say that error may be made perpetual, and that the judicial department is an impregnable fortress, which no force of reason may approach, and no power of truth may assail. Such a rule would have driven from the bench of England one of the brightest luminaries of legal science, or would have imposed restrictions upon a genius which rescued the common law from the manacles of barbarism, and gave it a vitality equal to the progress of the nation upon whom it operated, and a power adequate to its own regeneration.
I am willing that the decisions of the Supreme Court of the United States, in every case determined by them, within the scope of their jurisdiction, should
Perhaps it would not, under other circumstances, be required to reply to suggestions which counsel have deemed worthy of energetic expression; but considering the tone and manner in which they have been urged, it may not be unimportant to notice one, and perhaps others, as they may incidentally occur in the discussion of the principles which have been brought to bear upon the consideration of this case.
We know no party or faction. We desire to know none. The law, and the law only, and its due administration, is the object of our solicitude. Our aim is, to adjudicate upon cases, not parties; to apply the law as it is, not as we may think it ought to have been; to construe it as the properly constituted lawmakers have given it to us; not as from their acknowledged wisdom we may suppose they ought to have framed it.
Nor, as has been suggested, in construing and applying the Constitution, “ and the laws made in pursuance thereof” ought our reason and judgment to be thwarted by the possibility of conflict with other tribunals. If the laws made “in pursuance” of the Constitution are so imperfect that their due administration necessarily leads to collision, the remedy must be sought within the scope of the legislative depart* ment, ox*, by the primary action of the people, within their scope, by an amendment to the Constitution itself. This court has no power to remedy the defect.
But, as I said on a former occasion, I apprehend none of these dangers. The line of demarcation is not very dim ; and a just regard to the appropriate attributes and powers of the State and Federal sov-ereignties, on the part of the functionaries of each, is the safeguard which the Constitution has itself provided against all attacks; which has hitherto proved adequate to every emergency, and which was deemed by its framers far safer and wiser, than to provide one sole, exclusive and ultimate umpire in either, which might at its option absorb the powers and sovereignty of the other.
Indeed, it may well be affirmed, that this very di. vision of sovereignty between the States and the federal government, without providing in either an ultimate and exclusive judge of the respective powers of each, but binding all alike to fidelity and obedience to the prescriptions of the Constitution, is not the least mark of the wisdom and foresight of those who framed this complex and novel system. On the one hand, if the sole power of determining upon the respective powers of both governments, were confided to the general government, it might lead to encroachment upon, and ultimate extinguishment of the State sovereignties: on the other, were it confided to the States, the powers delegated to the federal government might, one by one, be impaired, or swept away, until at length it would be left powerless to accomplish the objects of its creation. But by prescribing definitively the powers delegated to the general gov
Such was the theory of the framers of the Constitution of the United States, concerning its practical working upon a free and intelligent people, already thoroughly schooled and disciplined in the principles and practice of self-government; and time and experience have fully justified their opinions and their faith,.
The course of the argument of counsel upon the review of the positions assumed by the justice of this court to whom the original application of the peti
I cannot yield my assent to the proposition. I do not so understand the relations of the respective courts. Especially, were the doctrine admitted in general, without' danger or detriment, it would be fatal to recognize it in a case like this, involving the personal liberty of the citizen brought under examination through the instrumentality of the writ of Habeas Corpus.
I cannot, here, go over and attempt to sustain those positions first assumed. They are assailed by assumed authority, and by such authority only. Let authority have its just weight, on the one hand, and reason and history, on the other. But, as admonished by the Eather of our country, familiar with the difficulties and obstacles which interposed to the formation of our national government, to recur frequently to elementary principles, it may not be improper, in recur rence to those fundamental principles of our government, to refer to what would seem an obvious and primary principle, by which the federal compact is to be interpreted, and for this purpose to look to the origin as well as the consummation of the system of
The Constitution of the United States is, in its more esseiltial and fundamental character, a tri-partite instrument. The parties to it are: The States, The People, and The United States. The latter is, indeed, a resulting party, brought into existence by it, but when thus created, bound in all respects by its provisions. It is practically represented by its several departments, deriving their powers directly and severally through its respective grants. It is derivative, not original. Previous to the operative vitality of the Constitution, this third party to the instrument was non-existent, and of course powerless. The other two parties, the States and the People, were pre-existent, endowed with all the essential elements .of sovereignty.
One great and fundamental mistake has been made in respect to the second party to the federal Constitution, viz: the People. This party, here spoken of} cannot be considered as the people inhabiting the whole territory embraced within the boundaries of the original thirteen States, as operating in mass, as one undivided and indivisible community. Previous to the formation of the government of the United States, there was no such political existence ; and of course, there being no such government, there could be no people of such government, or political division or organization. It is unnecessary, in this connexion) to refer to the confederation of the States, because that did not, in fact, constitute a government; nor will any one pretend that the people of the confederated States created the present federal government
The States, therefore, as pre-existing sovereignties, are clearly parties to the federal compact, and, together with their respective people, were the creators of the third party to the compact, viz: The United States.
Nor was the Constitution of the United States submitted to the whole people of the thirteen States for adoption, but to the people of each State, represented in convention called for that purpose, by the authority of each State. On the question of its adoption or rejection, the people of each State, whether many or few, had an equal voice. They spoke on that question for their State, and the small States had an equal voice with the large.
Nor was the Constitution to become operative when a majority of the whole people of the proposed Union should ratify it, but when ratified by the conventions of nine States, and then only upon the States,
The States derive not one single attribute of power or sovereignty from the Constitution of the United States. On their separation from Great Britain, they were each sovereign and independent; as completely so as the government from which they had revolted. They retain all the attributes of sovereignty which they have not delegated or relinquished. Nor does the'Constitution address itself, in a single instance, to the people of the whole Union, as one indivisible community, but always to the people, or to the con' stituted authorities of the respective States. But the new entity brought into existence by the Constitution, does derive every jot and tittle of its power from that instrument. Without it, the States existed and performed all the functions of government. Without it, the federal government had not a shadow of existence. If that instrument ceased to operate the States would move on, performing their present functions, and probably resuming the powers before delegated; but the government of the Union would cease altogether.
I make these remarks, because persons in their zeal for federal supremacy seem to have lost sight of the true relations subsisting between the confederacy and its members. The rights and sovereignty of the latter would seem to be sacrificed to the exaltation and glory of the former. But returning to elementary principles, it will not be difficult to determine the just rights and limitations of both.
These remarks are made also for the purpose of exhibiting more clearly, principles of interpretation
Test the third clause of the second section of the fourth article of the Constitution by this rule : “ No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.” What power or authority did the States relinquish by this clause % At most, the light, and power, if you will, to enact any law or regulation by which such escaping fugitive shall be discharged from such service or labor. They also covenanted that the fugitive should be delivered up. But did they delegate to the federal government the right to enter their territory and seize him? Did they au-thorise that government to organize a police establishment, either permanently or temporarily, armed or unarmed, to invade their territory at will, in search of fugitives from labor, ranging throughout their whole extent, subject to no State law, but enjoying a defiant immunity from all State authority or process, while executing their mission ? Did the States relinquish the right or power to prescribe the mode by which they would execute their own solemn com
Nor are these assumptions unsupported by the 0pjnj0n 0£ {pe court that case, to which obedience is invoked. On the contrary, they include and form the very groundwork' of the decision, as a few extracts from the opinions of the judges will show. Mr. Justice McLean says, “ If the effect of it” (the clause in question) “ depended in any degree upon the con struction of a State, by legislation or otherwise, its spirit if not its letter would be disregarded.” (16 Pet. Rep. 622.) Not mere waywardness to the State legislatures, is here imputed, but contempt of constitutional obligation ; imputed, not only to the legislatures, but to the courts likewise. Be the imputation what it may, the argument is, that because the State functionaries are unfaithful to their constitutional duties, therefore the federal officers must take upon themselves their performance.
Again, page 661, Mr. Justice McLean says, “The States are inhibited from passing any law or regulation which shall discharge a fugitive slave from his master, and a positive duty is enjoined on them to deliver him up.” He goes on to show the necessity of the provision, and then asks “Now by whom is this paramount law to be executed ? It is contended that the power rests with the States. The law was de-signed to protect the rights of the slave holders against the States opposed to their rights ; and yet, by this argument, the effective power is in the hands of those on whom it is to operate.” “ This would produce a strange anomaly in legislation. It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies
"Was it folly in the framers of the Constitution to “ enjoin a positive duty upon the States to deliver np the fugitive” and also to leave them the adequate power to fulfil that duty ? This “ paramount law” “ enjoins a positive duty” upon the States, and yet in answer to the question “ by whom it is to be executed?” it is asserted that it would show inexperience and folly to leave the party, upon whom a duty is enjoined, the power to perform it. Would it not rather show most consummate folly, to enjoin the performance of a positive duty upon the States, and at the same time deprive them of all power to execute it “by legislation or otherwise”? A “positive duty is enjoined” and yet it is consummate folly to leave' “ the effective power” to perform that duty in the hands of those upon whom it is enjoined ! Is it sup. posable that the States would enjoin upon themselves a positive duty, and then voluntarily relinquish all power to perform it? The learned Judge is doubtless correct in saying that a positive duty is enjoined upon the States. Concede this, and it irresistibly follows that the power to perform it remains with the States. Mr. Justice McLean must either retract from his position that a duty is enjoined upon the States, or abandon his position that they have no power to execute it by legislation or otherwise. Both cannot stand. It is immaterial which is surrendered, one is worthless without the other, and the assertion of the one is fatal to the other. A “ positive duty is enjoined upon the States to deliver up the fugitive,” yet, if left to the States to provide for its performance, or directly perform it, “ by legislation or otherwise,” the letter
Again, Mr. Justice Story who delivered the opinion of the court in the case above mentioned, (Prigg vs Penn.) speaking of the clause in question, says : “ He (the master) may not be able to lay his hands upon his slave. He may not be able to enforce his rights against persons who either secrete,or conceal, or withold the -slave. He may be restricted by] ocal legislation as to the mode of proofs of his ownership ; as to the courts in which he shall sue, and as to the actions which he may bring, or the process which he may use to compel the delivery of the slave. Hay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem,- or no specific mode of re-possessing the slave, leaving the owner at best, not that right which the Constitution designed to secure, a specific delivery cmd repossession of the slave, but a mere remedy in damages ; and that perhaps against persons utterly insolvent or worthless.”
“ One State may require the owner to sue in one mode, another in a different mode. One State may make a statute of limitations as to the remedy in its own tribunals, short and summary; anothér may pro. long the period and yet restrict the proofs. Hay, some States may utterly refuse to act upon the subject at all; and others may refuse to open their courts to any remedies in rem, because they would interfere with their own domestic policy, institutions, habits, &c.
“ The slave is not to be discharged from service or labor, in 'consequence of any State law or regulation. How certainly without indulging in any nicety of criticism upon words, it may fairly and reasonably be
Here is the same assumption of State infidelity which pervades the reasoning of the whole case. The States will not execute their own covenant, and therefore the federal government will execute it for them. Mr. Justice Wayne also, adopting the reasoning of the court in the opinion delivered by Judge Story, indeed I may say the language, for Judge'* Story uses almost precisely the same, says:
“ If, then, in a controverted case, a person charged as a fugitive, shall be discharged under a remedy legislated by a State, to try the fact of his owing service or labor, is he not discharged under a law or regulation of a State ? It is no answer to this question to say that the discharge was not made in virtue of any law discharging the fugitive from servitude, and that the discharge occurred only from the mode of trial to ascertain if he owed service and labor. For that is to assume that the provision only prevented discharges from being made by the States by enactment or law declaring that fugitive slaves might be discharged. The provision will not admit of such an interpretation.”
“Would not the postponment of the trial of a*106 fugitive, owing service or labor one month, be a loss to the owner of his service equivalent to a discharge for that time ? And if a State can postpone by legisla-the tr^il for one month, may it not do so for a longer time ? And whether it be for a longer or a shorter time, is it not a discharge from service for whatever time it may be ? It is no answer to this argument to say that time is necessarily involved in the prosecution of all rights,” &c.
In all of these passages, the necessity of federal legislation, and consequent judicial action, is urged, upon the assumption that the States will not, and therefore the federal government should, carry into effect this provision of the Constitution; imputing infidelity to the former, and claiming exclusive fidelity in this behalf, for the latter.
But I will not pursue this subject further. It is not pretended that there is any direct grant of power to the federal government in this clause, nor, that it is incidental to any other direct grant. But it is as' sumed, first, that a duty is required of the States to be performed; and because it is apprehended that the States will not perform it, therefore the federal government may, and even ought to perform it. Once admit this rule of interpretation, and the blindest cannot but perceive, that Congress may, as occasion shall seem to suggest, assume the entire duty of local legislation for the States, and that the whole power of internal police of the States may be usurped by the respective departments of the general government.
But I cannot pass over these two paragraphs without a word of comment upon the mode of reasoning here adopted, and the peculiar application of language, not indulged in, but rendered necessary to sus
Let it not be said that this is a mere verbal criticism. It is far from it. The use of the word in the passages quoted was not merely accidental — a mistake, to which all are liable ; but it is studied, labored, and argument is strained, in order to justify its propriety. I desire to treat the opinions of the court in the case in question, with entire respect; but respect is also due to our mother tongue. “Words are not mere arbitrary signs of ideas,” to be altered and moulded at the pleasure or convenience of the writer. They are “living powers,” demanding a fealty that admits of no evasion; giving to language laws which no judicial mandate can change, and no legislative enactment can repeal; ruling and guiding families, circles, communities and nations. To pervert, or change, or destroy the genuine meaning of a word, may be to sap the very foundation of a nation’s rights and liberties; it certainly is, to rob it of one of its dearest rights, that of expressing its wants and its woes, its affections and its joys, its duties and its rights. I have a right, therefore, to protest against this perversion of the use of this word “ discharge ” ; for it is a part of my language — a sovereignty above State and National, the sovereignty of thought and affection.
Mr. Justice Wayne continues : “ The question here is not as to a time being more or less necessary, but as to the right of a State,' by regulations to try the obligation of a fugitive to service or labor, to fix in
It is not pleasant to refer to an opinion of tire Supreme Court of the United States in this manner. I would not have done so, if, from the character of the reasoning, in this behalf any other mode could have been perceived. Ordinarily, to quote the decisions of that court accurately, is to pay them the highest possible respect. If, in this instance, a fault is aj>pa-rent,it must be attributed to the fact, that the objects of veneration sometimes, perhaps to indicate a deeper devotion, interpose obstacles in the pathway of pilgrims to their shrine.
The course of the argument has imposed upon me? a necessity to examine further the case of Prigg vs. Pennsylvania. It is cited as binding upon our consciences. It is claimed that it is unbecoming in a State court to question its authority, or to subject its reasoning to elementary criticism. I deny its au. thority. But if I did not, I should yet claim the right to test its doctrines and reasoning by those rules which are common to all human conclusions, and which are the law of the human mind. I do not
But to return to the decision in the case of Prigg vs. Pennsylvania. In the first place, it should he observed, that the decision of the case by the State Supreme Court was pro forma merely. The responsibility of deciding upon the matter by the latter court was avoided, (if my memory serves me, in conformity with a special act of the legislature of that State,) and by common consent, the United States Supreme Court was charged therewith. )The question of jurisdiction was not raised at all. Jurisdiction was assumed, and the case proceeded, in order “ to put to rest certain ' vexed and agitating j questions with what success, time and experience have unfortunately shown. If that court had no jurisdiction, that fact alone would strip its decision of all claim to authority. However patriotic the motives which induced the one court to concede, and the other to assume jurisdiction, it is not improper, perhaps, to remark, that one State has not the right to make a mere pro forma decision upon a given subject matter, foiqjthe purpose of conferring jurisdiction upon the Supreme Court of the United States, and by such process to bind every other State. If one State chooses voluntarily to relinquish its own sovereignty, it by no means follows •that the other States have thereby relinquished theirs. If the consent of Pennsylvania could give jurisdiction in that case, hers was not the consent of all. If there was no jurisdiction, the decision is without legal effect for any purpose.
But, without at this time further questioning the jurisdiction of the court, and without admitting it, let us endeavor to discover the point or points in judg
It is admitted that the States can pass no law or regU][atx0Q by which the fugitive from service or labor may be discharged therefrom. It is further admitted, that a duty is enjoined upon the States to deliver him up, on claim of the person to whom such service or labor is due. This covenant or compact has the force of constitutional law, and no State law repugnant to its provisions can be valid, but every such law is void. The simple question in the case referred to, was, — did the law of Pennsylvania contravene that provision of the Constitution ? The law of Pennsylvania under which the prisoner was indicted, was the subject matter of inquiry. Its conformity with, or repugnance to, the constitutional provision, was necessary to be decided; nothing more. Admitting, for the sake of the argument, that the Supreme Court of the United States had the power to say to the State of Pennsylvania, that this law of hers was repugnant to the constitutional provision in question, it was not necessary to declare that she had no right to legislate at all in reference to that subject; nor to declare that the federal government had the sole and exclusive power of executing the provision; nor to declare that Congress had any such power of legislation, if the statute of Pennsylvania was repugnant to the provisions of the Constitution. The case in question, therefore, can only be authority, if authority at all, in relation to the particular point in judgment, viz : the constitutionality of the statute under which the prisoner was indicted. Argument may have taken a wider range ; the course of discus
The majority of the court decided that the 3d clause of the 2d section of the 4th article of the Constitution gave the owner of a fugitive slave the right to seize him, in any State in the Union, without process, and take him back to the State from which he escaped, and that the law of Pennsylvania which interfered with such right was repugnant to the clause itself, and therefore void. This was the point in judgment. This was the legal scope of the decision, and no more. And it is cheerfully admitted that any court, State or National, having jurisdiction of the subject matter and the
But we will take the case as the majority have presented it, comparing occasionally the opinions delivered, consentient as well as dissentient, with each other, and with those rules of interpretation of the Constitution, which the Supreme Court of the United States has itself long since established, and which have been adopted also, with few exceptions, by the courts of the respective States.
The first observation which forces itself upon the mind, upon an examination of the case, is, that all the rules of construction theretofore established for the guide of the federal as well as State courts, in the interpretation of the Constitution of the United States, are utterly repudiated.
Among the rules of interpretation considered to be firmly established, which particularly concern the matter in hand, is the one laid down in 1 Story's Commentaries,, 409-410. It is as follows: “ A rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely beccmse the restriction is inconvenient, impolitic, or even mis-chievousT Yet the whole tenor and force of the argument in behalf of the assumption of federal authority for the execution of the compact in question, rests solely upon the inconvenience of State action, or the mischief resulting from the omission or refusal of the States to act. What is the “fair scope of the terms”
Again, the “ fair scope of the terms” of this clause of the Constitution has been enlarged in violation of this rule,in assuming that it conferred upon the slave owner a constitutional right to have his slave restored to him in the State from which he fled. But it is obvious from reading the clause, that it contains no covenant or guaranty to return the fugitive, but only to deliver him up in the State to which he may have fled and in which he may be found; not to return him to the State from which he may have fled. The Supreme
The court say, “ The object of this clause was, to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as, property, in every State of the Union into which they might escape from servitude.” “Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing or abolishing the rights of the owners of slaves.”
By what rule of interpretation such a construction can be placed upon the words contained in this clause, it is difficult to conceive. The full recognition of the right of property in the slave in every State in the Union! The complete right and title of ownership in their slaves as property! It is submitted, that the recognition of the rights of the master enjoined by the clause is : (1) so far as not to dischaige the fugitive from the labor or service which may be due, claimed and established; and (2) to deliver him up on claim of the person to whom such labor or service is due, when claimed by him, and such claim is le-
It is submitted that this is going a little beyond the “fair scope” of the language of the Constitution. Its fair scope and true intent do not require of the free States any recognition of the right of the owner of the fugitive in him as property. That was never-required of them, and would have been scouted, had it been proposed. The clause simply requires that the States into which the fugitive shall escape shall
Such, it seems to me, is the plain meaning of the clause in question. I cannot conceive of any other. And yet, in the same case (Prigg vs. Penn.) the court say,,“the clause contains a positive and unqualified right of the owner in the slave as property, unaffected hy any State law or regulation whatsoever, because
Now one incident to that fight in the State from which the slave has fled, is, that the owner may transfer it to another, and therefore no State law or regulation can prevent the exercise of that right in a free State and to the same extent to which the owner is entitled in his own State. The slave code of every State in the Union is thus engrafted upon the laws of every free State, and the latter are prohibited from all legislation on the subject, while the power of legislation, to enlarge or modify this right is in the former. To the “ same extent ” as the right of the master in the slave is given by the local law of Arkansas, is he entitled to enjoy and exercise it in Wisconsin or Massachusetts ! This is insisted upon over and over in the opinion of the court, and it is claimed that the State courts are bound by the decision. T cannot assent to the proposition.
Again, it is said that “the clause contains a positive and unqualified recognition of the right of the owner in the slave unaffected by any State law or regulation whatsoever, because there is no qualification or restriction of it to be found therein; and we have no right to insert any which is not expressed or clearly implied.”
The rule of construction laid down in numerous in
It may then be ashed, in all candor, if the Supreme Court of the United States, or any officer or person, can expect the courts of the States to adopt this decision as the law of the land? Do they require obedience to this rule of interpretation ? If so, in obeying this, we violate all other rules of construction by them established. Fealty to the doctrines of this case, is treason to the law of all preceding cases.
It cannot be necessary to refer specifically to the repeated adjudications by which the Supreme Court of the United States have declared the rules of construction of the Constitution, viz: that the federal government is one of limited powers; of powers delegated, not inherent; that it can exercise no power unless expressly granted or necessarily implied ; that the federal government was endowed with no power but such as is expressed or necessarily incident to the execution of some express power ; that all powers not delegated, expressly or by implication, or necessarily incident to some express power, were reserved to the States and to the people ; — they are known to every student of the Constitution. (See Martin vs. Hunter’s Lessees, 1 Wheat. 326 ; Story’s Com. § 1238 et seg.; 1 Kent’s Com. 388, 390 ; Gibbons vs. Ogden, Wheat. 203; 4 Wheat. 122 ; 5 Wheat. 1; 2 Dall. 386 ; 2 Wheat. 259 ; 8 Wash. C. C. Rep. 316, 322 ; cmd oases there cited) Yet the rule sought to be established by this decision is, that reservations and restrictions in behalf of the States are to be expressed, and not grants or relinquishments in behalf of the federal government; that in the absence of restriction, positive and unqualified right or power is to be inferred ;
These are the grounds upon which the doctrine of Prigg vs. Perm, is based. They are not inferences or deductions from the doctrine, but premises without the recognition of which, not one step towards the conclusion can be taken.
But I ought not to dismiss this portion of the case without suggesting its dangerous tendency. If the free States are bound by this clause of the Constitution to recognize the full and complete rights in the owner of the fugitive slave, as ¡property, to the “ same extent” as they were recognized in the State from which he escaped, then it will soon be claimed that the free States may be made a highway for slaveholders traveling with their slaves ; a thoroughfare for internal slave traders, over which to transport their living chattels from State to State, and State sovereignty itself must succumb to the slaveholders’ authority. I do not mean to say that the case of Prigg vs. Penn, has that extent; but that such is its tendency. Perhaps it was intended by the court to restrict the application of its doctrines to the case of slaves who had escaped. Its language, however, has a much wider scope. But conceding as I do the full effect of such limitation, and how easy will it be to construe an advantage taken of a voluntary bringing of the slave into a free State, into a technical escape; so to frame affidavits as to support a constructive escape, and thus to hang not only the liberty of the citizen or inhabitant, but also the sovereign authority of the State, upon the mere affidavit of a man who, for hire,
Having declared the right of the slave owner to the extent before stated in the remarks of the court quoted, the court go on to say, “ If indeed the Constitution guarantees the right, and if it requires the de livery upon the claim of the owner, (as cannot be well doubted) the natural inference certainly is, that the national government is clothed with the appropriate functions and authority to enforce it.
The simple answer to this is, that the Constitution does not guarantee the right. It guarantees no right. No power is granted in the Constitution to the federal government to enforce or guaranty any right in regard to fugitive slaves, or any other slaves. The Constitution expresses a simple inhibition on the one hand, and enjoins a simple duty on the other. The inhibition on the States, is, not to discharge the fugitive by any State law or regulation; the duty enjoined upon the State is, to deliver him up on claim, &c. &n inhibition upon the States is not a grant of power to the United States. A duty enjoined upon the States, cannot be construed into a grant of power to the United States, to do the same thing in case the States do not. The States are inhibited from passing any law impairing the obligation of contracts, but because the States are thus inhibited, it cannot be contended that the federal government may do so. So far from it, that an express power was invoked and incorporated in the instrument enabling Congress to provide for a uniform system of bankruptcy. The duty of electing senators is enjoined upon the State legislatures by the Constitution of the United States;
The court say, in continuation of the paragraph just quoted, in illustration and enforcement of their doctrine: “ The fundamental principle, applicable to all cases of this sort, would seem to be, that where the end is required, the means are given ; and when the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any State.” Mr. Justice McLean, who concurred in the main opinion of the court, that the power of legislation was vested exclusively in Congress, and wrote a separate opinion to strengthen it, says that a positive duty is enjoined upon the States to deliver up the fugitive, and the court say that because the clause is found in the national Constitution and not in that of the States, the federal functionaries must perform it, and the State functionaries cannot; still the duty is enjoined upon the States, and when the duty is enjoined, the ability is contemplated to exist on the part of the functionaries to whom it is entrusted; nevertheless, though entrusted to the State functionaries, and the ability to perform it contemplated to exist on their part, it does not exist at all, and the States and their functionaries have no authority in the premises. Such is Prigg vs. Penn., decided pro forma in a State court, and jurisdiction assumed in the Supreme Court of the United
“ The .clause is found in the national Constitution, and not in that of any State. It does not point out any State functionaries, or any State action to carry its provisions into effect. The States cannot, therefore, "be compelled to enforce them, and it might well Tbe deemed an unconstitutional exercise of the power of interpretation to insist that the States are hound to provide means to carry into effect the duties of the national government, no where delegated or entrusted to them by the Constitution.”
What inference can be legitimately drawn from the fact that the . clause is found in the national Constitution, in favor of a grant of power to the federal government, it is difficult to perceive. Many, very many clauses are found there which confer no power”, some which do, some' which restrict, and some which inhibit'its exercise. Because it is found there, and nowhere else, it does not follow that the national government shall enforce it. On the contrary, the acknowledged rule of interpretation is, that it cannot exercise any power but such as is expressly or impliedly delegated, and that where this1 is not the case, the power of execution is reserved to the States or to the people. If the clause does not point out any State functionaries, or any State action to carry its provisions into effect, neither does it point out any national functionaries, or any federal action for the same purpose ; hence, according to the rule of interpretation, before stated, if it did not point out national functionaries, or federal action, the same were reserved to the States and the people thereof. There would have been a manifest impropriety in attempting '
The vice of this sort of reasoning on the part of the court, is, that it begs the very question which it assumes to prove. It is assumed, that upon the national government is imposed the duty of delivering up the fugitive; then, .because'the duty is imposed, the means of performing it necessarily exist. But the duty is not imposed upon that government; and . the members of the court who-concurred in the opinion were obliged to abandon this fundamental position, and admit that the duty is enjoined upon the States. Then, according to- the majority opinion, “ when a duty is enjoined, the ability to perform it is contemplated to exist,” a majority of the judges will be found, upon analysis, holding that the duty and the power, both rest with the States. These are in
The veiy fact, therefore, that the clause does not point out any federal functionaries, or any federal action to carry its provisions into effect, is a conclusive argument, that State functionaries, and State action, are the only constitutional means of its execution; because all agencies, powers and processes not granted to the federal government or some department thereof, are. reserved to the States and to the people. And for the court to assume, that federal authority is to be presumed in all cases when State functionaries are not pointed out, is a gross usurpation, and a flagrant violation of all settled rules of construction, and a palpable violation of the express provisions of the tenth amendment of the Constitution itself.
One more assumption on the part of the court in favor of the exclusive power of legislation by Congress, and I will dismiss this branch of the subject. The question which seems to have agitated the minds of the court was, not what is the fair construction of the clause, and the obvious mode of deriving its bene fits, but in what manner may it be possibly stretched and distorted to serve the present ends, and to suit the convenience of the slaveholding States. The rights,interests, feelings,' dignity, sovereignty, of the free States are as nothing, while the mere pecuniary interests of the slaveholder are everything. This is as absolute an impeachment of the patriotism of the South, as it is of the integrity and honor of the North. It assumes that the former value the Union at the price of an occasional runaway negro, and that the
The court say (page 623), “In the next place,' the nature of the provision and the objects to be attained by it, require that it should be controlled by one and the same will, and act uniformly by the same system of regulations throughout the Union.” Strange, indeed! What is there in the case of a runaway slave so very peculiar, as to require him to be caught by one and the same system? What so peculiar in the master’s claim as to require it to be tried by one and the same rule in every State ? Is there anything so sacred in the relation of the master to his fugitive slave as to require the “policy, local convenience and local feelings” of every State to be subjected absolutely to its demands? The slave States did not ask this at the time of the framing and adoption of the Constitution. All they asked of the free States, was expressed by Messrs, ■ Pinkney and Butler in the clause which they presented in the national convention.' All they dreamed of asking was, that their fugitive slaves should not be discharged by operation of the emancipation laws of the free States, or those which were becoming, or about to become free ; that instead of discharging and-protecting them, they would deliver them up on claim of the rightful owner. They were perfectly willing that each State should do this in its own way. The right of the State to emancipate its slaves was acknowledged, and it was asked that this sovereign right should be restricted so far, and so far only, that its laws should not affect slaves escaping from other States, so as to discharge them from the service due
It is a poor, grumbling argument to say, that because I must submit to the regular forms of law to establish my rights when contested, that to do so, would cost more than my claim is worth, This is the common complaint in all conflicting claims, to settle which requires the intervention of judicial forms. “ The law’s delay ” is an ancient subject of grumbling ;
p>u^ ^ is saicl5 that a trial of the claim of the master, and an adjudication in his favor, would be no protection in another State through which he might have to pass on his way to his own domicil. Well, what of it ? The clause does not require of the State delivering up, any such guaranty. Nor does it furnish any such guaranty from any source. If more had been deemed requisite, more should have been inserted in the clause. But it is submitted, that ample protection is afforded by another clause of the Constitution, and power is given by express grant to Congress, to make it effectual. It is found in the first section of the same article four. “Full, faith and credit shall be given in each State to the public acts» records, and JUDICIAL PROCEEDINGS of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and judicial proceedings shall be proved, AND THE EFFECT THEREOF.” Here is full protection in every State. Give to your mode of re-possessing yourself of your fugitive, and establishing your claim to his service, the dignity of a judicial proceeding, and you are protected in every State of the Union through which you may pass.
Here, then, vanishes one of the most frightful of the arguments of inconvenience raised by the court on which to found an implied power’. All the others of the kind vanish likewise upon slight inspection. With these vanish all, for there are none other.
And herein have the slaveholding States gained vastly by the federal compact. Before the adoption
This is the fair scope of words of the clause. With it the South were satisfied. They demanded no uniformity of remedy. They were willing to leave the mode of execution to the good faith of the States. Why then seek to enlarge the scojDe of the words ? Why make a new bargain, because the .old one may operate inconveniently ? And well might the South, in view of the tendency of the local policy of the Northern States, be content to rest upon such a compact, without demanding a uniform remedy in every State. They might well leave to the Northern States. the poor privilege of consulting their own local welfare, peace, feelings, aye, prejudices,-if you will, as to the mode of delivering up the fugitive. Their own domestic peace might require a different process from what might be required elsewhere. The tone of public sentiment, the temper .of the times, their contiguity or remoteness from slave territory, might render modifications, as to the remedy, essential to its due and peaceful execution in different States; and it mattered little what was the mode of execution, so that the remedy was adequate. It might well have been apprehended, that the States would never consent to have one or another mode forced upon them, however
I had intended to compare the several opinions delivered in this case, and to show (which it would be easy to do) that there is scarcely a point attempted to be settled by the majority opinion, which is not left unsustained by a majority of the judges, in their separate opinions. Indeed, it is haidly possible to discover a single point on which a majority agree when they speak separately, except, perhaps,
If this case is authority at all, binding upon any court, it is only authority upon the point in judgment;, and that point was, whether the act of Pennsylvania, under which the plain tiff in error, Prigg, was indicted and convicted, was unconstitutional. The court decided that it was repugnant to the clause which has been mentioned, inasmuch as by that clause, the master may seize his fugitive in any State., and remove him, by his own act, and without process, and convey him out of the State ; and as the statute of Pennsylvania made such an act. punishable as for kidnapping, it was repugnant to the clause in question, and therefore void. It is cheerfully admitted, that all laws enacted by a State, or by Congress, which contravene the provisions of that clause, are unconstitutional and void ; and it is as much the duty of the State courts so to declare them, whether passed by the State or National legislature, as it is the duty of the United States courts ; no more, no less ; and the determination of the one according to its grade, is as much authority as the other.
This case ought not to be passed over without noticing one important fact established by the special verdict, and which seems to have been entirely overlooked in the opinion of the court. The negro woman, Margaret Morgan, escaped from the State of Maryland (where by the laws thereof she owed service, or, in other words, was a slave for life to one Margaret
It is a little singular, that though Prigg had taken and carried away this child, born in Pennsylvania more than one year after the escape of the mother, yet no mention whatever is made of the fate of that child, except that it was delivered to Margaret Ash-mun. But there is no concern for this child expressed in the opinions of the court and judges. A child born in a free State more than one year after the mother had .fled thither, could hardly have been regarded as “ an incident” to the right of the owner “ in ” the slave 'mother. Perhaps it was supposed that “ the full recognition of the rights of the owner in the slave, as property, to the same extent, and with all its incidents, as the same is recognized in the State from which she fled,” would embrace this child of Pennsylvania within the comprehensive scope of the principle sought to be established. It may be, and
The entire argument of the majoi’ity opinion in this case is based upon the assumption that a duty is imposed upon the federal government to deliver up the fugitive, and therefore Congress must have the sole power to legislate the mode of its performance. Other judges, who dissented from the doctrines of the opinion, and Mr. Justice McLean, who concurred in the main principle just mentioned, but who dissented upon other grounds, abundantly refute and subvert the assumption, and show, what indeed is palpable, that the duty is enjoined, not upon the federal, but upon the State governments; thus completely overthrowing the whole fabric oi the decision, by subverting its foundation.
No duty is enjoined upon the federal government. The clause addresses itself to the States and contemplates State action. It imposes a restriction upon State legislation, inhibiting any law or regulation by which the fugitive shall be discharged; thus recogni
Much stress is laid upon the fact that at an early day Congress assumed the power of legislation, in the passage of the act of 1198, thus affording contempo. raneous interpretation as an argument in favor of the power of Congress to legislate upon the subject. But the Supreme Court of the United States in this very case, determine that act to be unconstitutional, inasmuch as it requires the action of State functionaries to execute it. If unconstitutional in the mode of leg. islation, it may be equally so in regard to the rightful power of legislation. Indeed the very fact of the apparent impossibility of the national legislature, to provide for the execution of this clause of the Constitution, without violating its other provisions, ought to be sufficient to satisfy all, that the power rests with the State and not with the national functionaries, and that as the duty is enjoined upon the States, they must necessarily have the power, and the exclusive power to perform it. (See extract from the opinion of Justice McLean before quoted.) ‘ .
■ There are many other positions assumed, or remarks made in the vaviou-s opinions in this case which I would like to comment upon, but it is impossibleat this time. Enough has been said it is believed, to render it apparent, that it is not, that it cannot be authority for any court. Even did we admit that the Supreme Court of the United States is an appellate tribunal to this court, we could not hold the doc. trines and opinions of this case as binding upon our consciences, or as controlling our action.
The decisions previous to the case of Prigg vs. Pennsylvania, are admitted in almost all discussions
The cases in which the questions here raised have been brought before the courts, since the decision of the case of Prigg vs. Pennsylvania, have been determined in accordance with the doctrines of the latter, in the main, without examination or discussion. There seems to have been a great reluctance on the part of the State courts to enter upon the discussion of the subject, and a willingness to forego investigation of the principles involved, and to rest quiescently upon such authority as that case furnished. The United States courts have seemed to be content with the effort then made, and I am not aware that that case has ever been seriously reviewed. However, in the case of Moore vs. Illinois, 5 Howard, 18, the doctrines of Prigg vs. Pennsylvania seemed to press too hard upon the court, and without formally overruling the main question, viz: that the States had no power to legislate upon the subject of fugitive slaves, the court virtually overthrow the fundamental principle there established; admit and decide that the States may
I am now done with my remarks upon this case, so-often quoted, and in the argument at the bar so strenuously insisted upon as establishing a rule of judicial order and conduct — a rule which no lawyer or judge will ever esteem lightly — the rule “ stare decisis.” It seemed to be due to this court and to myself that this case should be examined. I have tried to do so fairly and respectfully. Sometimes it has been difficult, on account of the peculiar mode of reasoning adopted, and the .freedom of language, terms, and rules of construction indulged in, to maintain the solemn dignity which should be observed on approaching matters so gravo, and opinions sanctioned by such eminent names. But these names are not to me the highest objects of reverence ; the sovereignty of my State is higher than either or all; there is an authority above them all, that of the Constitution of the United States.
In an opinion like this, it would be out of place to attempt to show the baneful effects of that decision. But it would be easy to adduce facts without number, and dates unerring, indicating most unequivocally, that, if the annunciation of that decision was not the beginning of our troubles, it tended, and still does tend,'-greatly to enhance them. I speak not of its de-
But they will never consent that a slave owner, his agent, or an officer of the United States, armed with process to arrest a fugitive from, service, is clothed with entire immunity from State authority; to commit whatever crime or outrage against the laws of the State, that their own high prerogative writ of Habeas Corpus shall be annulled, their authority defied, their officers íesisted, the process of their own courts contemned, their territory invaded, by federal force, the houses of their citizens searched, the sanctuary of their homes invaded, their streets and public places made the scene of tumultuous and armed violence, and State sovereignty succumb, paralyzed and aghast,before the process of an officer unknown to the Constitution, and irresponsible to its sanctions. At least, such shall not. become the degradation of Wisconsin, without meeting as stern remonstrance and resistance as I may be able to interpose, so long as her people impose upon me the duty of guarding their rights and liberties, and of maintaining the dignity and sovereignty of their State.
Note. — This opinion was delivered verbally, from short notes, at the same time that the other judges delivered theirs, substantially as it .here appears, and has since been written out at length and prepared for publication with the report of the case.
There would be good reason for holding that this claim must be made in person, and not by an agent. The owner, on seeing his fugitive, who had served him long and faithfully, might relent of his purpose of reducing him again to bondage. The agent would be bound by instructions, and his heart closed against the suggestions of sympathy or justice. There would be a propriety therefore in requiring that the claim to an escaped fugitive should always be made by the owner in person.
