Page images
[ocr errors]

supreme law of the land; and the judges in | 1793 ; and the same grounds of argument which every state shall be bound thereby, any thing show the unconstitutionality of one, apply with in the constitution or laws of any State to the equal force to the other; and the same answer contrary, notwithstanding."

must be made to them." :7 Cushing, 285, Sim's (3.) Art. 3, sec. 1. “The judicial power of case ; Hurd on Hab. Corp. 196. the United States shall be vested in one Su- (2.) The Act of 1793 was held to be constipreme Court, and in such inferior courts as the tutional and valid in the following cases : Congress may, from time to time, ordain and Johnson, 67, Glenn v. Hodges, 1812 (Supreme establish."

Court of New York -- Kent, Spencer, ThompSec. 2." The judicial power shall extend to son, Varness, and Yates); 5 Sergeant & R. 64, all cases, in law and equity, arising under this Wright v. Deacon, 1819; 2. Pick 11, Com. v. constitution; the laws of the United States, Griffith, 1823; 12 Wend. 314, Jack v. Martin, and treaties made, or which shall be made un- 1834; 16 Peters, 539, Prigg v. Pennsylvania, der their authority ; to all cases affecting em- 1842, 10 Barr, 517, Kaufman v. Oliver, 1848; bassadors, other public ministers and consuls ; 5 How. 229, Jones v. Van Zandt; 1847. The to all cases of admiralty and maritime jurisdic- Act of 1850 has been held to be valid in--7 Cushtion ; to controversies to which the United ing; 294, Sim's case; 16 Barbour, 268, Henry v. States shall be a party; TO CONTROVERSIES Lowell; 21 Howard, United States v. Booth. BETWEEN TWO OR MORE STATES; between The case last cited was decided by the Sua state and citizens of another state; between preme Court of the United States, last winter. citizens of different states; between citizens of The Court was unanimous. They have been so the same state, claiming lands under grants of upon all occasions, when the constitutionality of different states; and between a state, or the the Act of 1793 was before them. It is deemed citizens thereof, and foreign states, citizens, or unnecessary to refer particularly to the numersubjects.”

ous decisions of the Circuit Courts of the United (4.) The last clause of Art. 6, provides that States, in regard to both acts. They all agree "all executive and judicial officers, both of the with the cases above cited. United States and of the several States, shall VIII. No court will hold a law to be unconbe bound by oath or affirmation to support this stitutional, unless its unconstitutionality be clear constitution."

beyond doubt. 1 Ohio State Rep. 82, 83, 84, (5.) The 25th section of the judiciary act of C., W. & Z. Railroad Co. v. Clinton County; 7 Congress, of 1789, gives to the Supreme Court Idem, 548, State v. Kennon et al.; 3 Dallas, of the United States appellate jurisdiction over 171; 4 Dallas, 14; 8 Cranch, 87; 14 Mass. the adjudications of the highest State courts, in: 345; 16 Pick. 95; 11 Penn: 70; 2 Monroe, 178; the numerous class of cases therein specified. 9. Dana, 1514; 2 Yerger, 623.

(6.) The proposition contended for on the With such a body of adjudications, and the other side, involves these consequences :

judgment of jurists of such learning and ability, It would make the subordinate equal or su- sustaining the constitutionality of the law, who perior to the appellate tribunal. There would can sảy that its unconstitutionality is clear bebe-thirty-two independent judicatories besides yond a doubt ? the courts of the Union, with equal authority

Geo. W. BELDEN, and to expound the constitution and laws of the

N. H. SWAYNE, United States.

of Counsel for the Respondent. : The same property, real or personal, recovered in a court of the United States, might be It is but proper to say that : Messrs. Belden recovered back in a State court.

and Swayne were never employed by the Re

, murder, counterfeiting, robbery of the mail, the spondent, but acted either in behalf of the U. importation of slaves from Africa, or any other States, or of their own motion. offence against the laws of the United States, The State of Ohio, ex rel. In the Supreme: any State Judge or Commissioner, authorized to

Simeon Bushnell et alius Court of the State issue writs of habeas corpus, may issue such

of Ohio. writ, and set the prisoner free. Vide 7 Cush. David L.Wightman, Sher300; 12. Wend. 314, 326 ; 3 Cow. 753.;:15

iff of the County of Cuy

Habeas Corpus. Cranch, 136; 21 How. United States v. Booth;

ahoga. 1 Serg. & R. 352, Com. v. Robinson; Hurd's Hab. Corp. 204; 16 How. 369, State Bank v. ARGUMENT ON BEHALF OF THE STATE, BY Knoop; 18 Id. 331, Dodge v. Woolsey,

MR: ATTORNEY-GENERAL WOLCOTT. VII. The Act of 1850 is constitutional and MAY IT PLEASE YOUR HONORS : It is valid. See Const. U. S., Art:4, Sec. 2; for the 1 to be regretted that the learned counsel, who Act, see Brightley's Digest, 294.

on this occasion represent the Government of (1.). The question of constitutionality is the the United States, lave (as one of their number Suine under this Act as under the Act of 1793. has just announced to your Honors) concluded "he law of 1850 stands, in this respect, pre- not to argue this cause in open court, because cisely on the same ground with the Act of that conclusion deprives us of all those advan


tages which grow out of an orderly oral discus= 1 thority be assumed by any court, judge, or minsion, where voice responds to voice, and eye isterial officer of the Federal Government, the looks into eye, the best mode which the wit of State of which the relator is a citizen, and withman has yet devised for" eliciting the truth as in which he is detained, is powerless, to inquire, between contending parties. But while I re- into the validity of that detention. In other gret,

I have no right to complain of their decis- words, it is said -- for the claim presupposes ion. It is their undoubted prerogative to con- and admits all this --that however unwarduct the case on their part in such way as to rántạble inay be the exercise of the assumed them shall seem best, even though the result is, authority, however tyrannical, arbitrary, and unas here, to leave us utterly in the dark as to the lawful the detention, however directly progrounds on which they rest their resistance to hibited in the particular instance, by the plain this application, except so far as the same may words of the Constitution; yet the State tribube gathered from the skeleton “ brief of points,” nals are powerless to redress the acknowledged which was only a few moments since placed in wrong; the victim has no appeal but to the the hands of your Honors and myself.

usurper himself. Now I submit to your HonAnd now, what is the case before your Honors, that the bare statement of this claim is its ors ? The State of Ohio, in the exercise of one own most conclusive answer. For, in effect, of its moșt, unquestionable attributes of sover- the proposition as narrowed down to this pareignty, and proceeding upon the representation ticular case, is that Federal judges may, by asof two of its citizens, presented, in the appro- serting in the form of an adjudication, power priate mode, that they were unlawfully re- to do an act unconstitutional in itself, bind all strained of their liberty by David L. Wightman, persons whatever, and preclude them from Sheriff of Cuyahoga county, has sent forth its inquiring either into the validity of the act done great prerogative writ to that individual, com- or the existence of the power to do it. manding him to produce before your Honors, But, may it please your Honors, if a Judge, as the repositories of the Supreme Judicial þy declaring that he has power to imprison, can Power of the State, the bodies of its citizens, estop all inquiry into the existence of that powand to certify to you the authority by which he er, he may equally, by insisting that he has so restrains them.

power over property or life, estop all inquiry Responding to this writ, the sheriff has here into the existence of that power. And what is. and now produced their bodies, and for answer this power but that absolute, arbitrary dominion as to the cause thereof; returns that he holds over all things and persons, which constitutes them in custody by virtue of a warrant issued the very essence of despotism? Now, whatever to him by the Marshal of the United States for power these Judges may legitimately exercise, the Northern District of Ohio; whicli warrant is derived from the Government of the United is predicated upon certain proceedings had in States. That Government is one of limited and the District Court of the United States for that delegated powers. The authority of its judisame District; an authenticated transcript of cial, and all other departments, is defined by which is incorporated into his return. From specific metes and bounds; and that there may this transcript it appears that the relators have be no mistaking these limits, they are written been convicted of a violation of the act of Con-down in what is called the Constitution; and to gress known as the Fugitive Slave Act, ap- make assurance doubly sure, the same instruproved on the 18th of September, 1850, and ment declares that all powers not comprehended were thereupon sentenced to imprisonment in within these limits do not belong to it. But to the jail of Cuyahoga' county.

what purpose is it that this power is thus speThis conviction and sentence being the cause cifically bounded in, if the power so intended to of the relators detention, the Court are here be restrained may at any time overleap these called upon to inquire into the validity thereof. limits? The distinction (said Chief Justice That validity is now challenged alike by the re- Marshall

, in Marbury v., Madison) between a lators, and the State of Ohio, which latter alone government of limited and of absolute power I represent on the ground that the act of is utterly gone, if the defined restrictions do not Congress under which the conviction was had in fact restrain the power, and acts authorized and the sentence pronounced, is incompatible and acts prohibited are to be taken as of equal with the Constitution of the United States, and obligation. Now it is plain beyond all argutherefore yoid.

ment that any adjudication of a Federal Judge But at the very threshold of the proceeding repugnant, to the Constitution is void, or if not I am met with a claim of power on the part of void, that such Judge may; by his own decision, the Federal Government, which, if well found- alter the Constitution. From one or the other ed, is an insurmountable objection to any fur- of these, alternatives there is no escape. It is ther inquiry, but which, I must add, strikes one either ạn: absolute nullity to be everywhere almost dumb with its audacity. It is insisted treated as void, or else instead of a republican that, whenever, by a return to its writ of habeas government exercising only specially delegated corpus, the tribunal of a State is advised that the powers, we have one whose sway is bounded relator is detained in custody under color of Fed only by its own will

, and have vainly attempted eral authority, whether the exercise of that au- to limit a power, which, in its very nature, is illimitable. Again I ask, then, does a judgment But this immunity from collateral question deof a court repugnant to the Constitution, and pends solely upon the presence of these two therefore void, notwithstanding its invalidity, "conditions, for if it has not the constitutional bind all persons and things within its appar- capacity to hear the cause, or if the party sought ent scope? To ask that question is to answer to be affected has not been duly brought into it. In this case the judicial action of this court; then its judgment concludes nothing. If court is invoked to liberate these applicants. it has this jurisdiction, its proceedings import Upon the one hand the Constitution which you absolute verity; if it has not, its judgment is an are sworn to support, prohibits these men from absolute nullity. When, therefore; in any probeing imprisoned for the cause alleged. While ceeding in any Court, the judgment of another on the other hand, the Federal Judge in Cleve. tribunal, whether as between the same parties land says they shall be imprisoned. Which of or otherwise, is interposed, either to these two is to command the obedience of the or defeat some right then in litigation, the very Court? Is the Constitution superior to the first inquiry always is: Had the tribunal, renruling of that Judge, where the two conflict, or dering this judgment, jurisdiction ? If it had, is the ipse dicit of that Judge to override thé Con- it concludes in the then litigation of all rights stitution? That is the simple question. If the which were within its scope; if it had not, it latter is to control

, then an act which, upon the is treated as mere waste paper, and the rights very theory of the government, is entirely void, which it sought to adjudicate still remain open is yet in practice completely obligatory, an act for discussion and judgment. No judgments, which the Constitution expressly forbids to be civil or criminal, are exempt froin this rule. It done is, notwithstanding the prohibition, én- is of absolutely universal application; from tirely effectual

. To what purpose, then, does the court of a justice of the peace up to the the Constitution itself declare that it is obliga- highest tribunals. Each one, when called on tory upon you as judges, and why require you to recognize the judgment of another power, to swear to support it, if, at the same time, you whether state or national, home or foreign, are obliged to violate it at the will of any Féd- first inquires and first determines whether it eral Judge ?

had jurisdiction." Nor until now, and in these But then it is said that the courts of the United cases under the fugitive act, has it ever been States are supreme within their sphere; all agree hinted, that any court was concluded from to that; but what then? So also are the State making this inquiry because the other tribuCourts supreme within their sphere; and the nal which rendered the judgment asserted same arguinent which proves that the Federal itself to have compétent jurisdiction. Now if Courts have a right to determine the extent of the learned counsel who represents the Fedtheir jurisdiction and impose that determina-eral Government (Col. Swayne), should bring tion on State Courts, proves equally that the his action against me in a State Court, upon State Courts have also the right to determine the. a judgment which he claimed to have reextent of their jurisdiction and conclude the covered against me in the Circuit Court of Federal Courts by that determination. But the the United States, and upon the production of question here is not of the supremacy of the the record of that Court it should appear affirmFederal Government within its sphere, but atively, either that in that Court he had sued whether it is supreme beyond it; for the propo- me to recover a penalty given only by a statute sition implies that the adjudication in the case of this State; or that the subject-matter being supposed, was an 'usurpation of power. And, within its jurisdiction - I had never been served may it please your Honors, the dogma of the with process or otherwise brought into Courtsupremacy of the Federal Courts within their does any lawyer within the sound of my voice, sphere, and their utter impotence beyond it, sug- does even the learned counsel himself, suppose gests the true rule; for it is only the statement, that the State Court would hold itself or me in another forni, of the maxim that the judgment concluded by that judgment?' Surely not. of a court of competent jurisdiction is every- Every tyro in the lawknows better. In the one where conclusive, save on proceedings directly case the judgment would be void for want of instituted to review it; while the judgment of a constitutional capacity to adjudge any such court which has not jurisdiction, is, in law, no penalty; in the other for want of jurisdiction judgment at all

. By competent jurisdiction is over the person of myself. Nobody doubts that. meant, that the court has constitutional and legal But, may it please your Honors, iť in an action capacity to determine the subject-matter of the touching the rights of property, you may in a litigation, and that the parties interested in that State Court impeach the judgment of a Federal subject-matter, and whose rights therein are to Court for the want of jurisdiction, a fortiori, be determined, have been properly brought be- may you do the same thing in every proceeding fore it. When these two conditions exist, it has which concerns the rights of personal freedom. jurisdiction. The right to adjudicate the case is If in an action pending before it, a State vested in the court; and, whether that right is Court may inquire whether a Federal Court exercised regularly or irregularly, erroneously had power to dispose of an ox or an ass, how or otherwise, its judgment tinds all persons and much more upon this great writ of habeas corthings which fall within its legitimate scope. Spus, may it not inquire whether that same court

[ocr errors]

has power to dispose of the liberty of the citi- ( renounced the right to prevent that punishment; zen? When, therefore, in response to Bush- but in even these instances, she has retained nell's challenge, made in the prescribed legal the power to inquire whether this limited mode, -- Marshal Johnson says he restrains him authority for punishing is kept within its narrow of his liberty under a sentence pronounced by bounds. In all else, save these special instances, Hiram V. Willson, Judge of the District Court, the State reserved the power to prevent all punit is a sufficient reply: to say either generally ishment not imposed by itself; and in all cases, it is a sillon was no judge at all, or that his including even these, she reserved the right to judicial power did not extend to the case in inquire into the nature of every authority which which Bushnell was sentenced. For if, as to the sought to deprive any citizen of his liberty. particular case he had no power to render judg- For it will not be questioned that the general ment, it is precisely the same as if he were not guardianship of the citizen is confided, not to judge at all

. Now suppose he had undertaken the Federal Government, but to the State alone. to try Bushnell without a jury, or the offence It follows that the power to which this guardiancharged was that of selling game out of season, ship is intrusted, must, as an indispensable conare we to be told that simply because in doing dition of its exercise, have the right to inquire this the Judge claimed to act under Federal into and determine for itself the validity of any authority we are bound to shut our eyes to authority which assumes within its limits to dethis usurpation of power. ; that the sentence is prive the citizen of that natural right of freean estoppel concluding all inquiry save on a writ | doin, for the security of which it has pledged its of error to review it? Looking, then, only at most solemn faith. Chief, and most efficient of the general principle applied daily to the most all the instrumentalities by which the State assolemn adjudications of every tribunal, this serts its sovereignty, and exercises this duty of Court must inquire and determine for itself protection, is the great writ of habeas corpus, whether Judge Willson had jurisdiction to award universally called the great bulwark of freedom, the judginent under which these two. citizens which has come down to us through many ages, are held in custody:

and which, issuing always in the name of the But again; the right of the State to inquire sovereign, was specially designed to inquire by into the validity of any authority imposing re- what authority any person was restrained of his straint upon its citizens as against every power, liberty, and to deliver from all unlawful imprisbe it State, national, or foreign, stands on an onment. This was the sole office of the writ even firmer basis, for it results from the very when the Constitution was framed, and when nature of sovereignty itself. The first and chief its makers --as if apprehensive that possibly characteristic of all sovereignty is its right to authority to suspend it might be inferred from the allegiance and service of its citizens; a right some grant of power to the Federal Government fundamental to all other rights of a State, for on commandingly declared that its privileges this its very existence in war or peace continu- should never be suspended except in cases of ally depends. Correlative to, or rather compre- rebellion or invasion. This emphatic prohibihended in this right, is the power to remove any tion speaks alike to every department of that unlawful restraint enforced against its citizens, Government- judicial as well as legislative and to the twofold end that the State may not be executive. Not only this, but the Constitution improperly deprived of his services, and that it of this State has thrown around this writ in like may efficiently discharge that supreme and im- terms the same absolute immunity. prescriptible duty of protection, which, as a re- Since, then, the power to inquire into all inturn for his allegiance every State owes to its prisonments belonged originally and necessarily citizens. On these two principles, allegiance to to the States; since it has never been and the State, protection to the citizen, rests not mere- never could be surrendered; since the constily all sovereignty, but the very social compact tutions, State and Federal, alike declare that it itself. Any nation which has wholly surren- shall not be suspended, I submit to your Honors dered the allegiance of its citizens or its cor- that there is no power in either Government to relative incidental right to protect them while abridge the right of the State to inquire into within its territorial limits, has in that very act the validity of every authority, Federal, State, abnegated every attribute of sovereignty and for Foreign, which assumes to restrain its citibecome the mere local dependency of the power zens. to which that allegiance and right has been sur-| Again, if it please your Honors, the right of rendered. But Ohio, thank God, is still a sov- the States to inquire into the validity of every ereign State, and has therefore never yielded imprisonment of persons held under Federal this right, as she never could yield it, and still authority has been constantly asserted and expreserve her sovereignty, to the Federal, or any ercised by every State since the organization of other government. In all the Constitution, I the Government. Persons arrested for alleged find no such grant. I find nothing prohibiting offences against the United States have been its continued residence with the States. In a frequently discharged, and you can hardly few carefully guarded, and specifically enumer- open a New York paper without finding cases ated instances, the State has delegated to the where the State Courts have discharged solFederal Government power to punish; and has diers or mariners, held in custody by virtue of


an enlistment under Federal laws. Metzger, drag that citizen beyond the limits of the State though arrested under a warrant of extradi- of his residence, and that no one may interfere tion, issued by the President in supposed con- with this forcible capture, even to ascertain the formity with treaty stipulations, and though a validity of the claim so made, except on pain Judge of the Federal Courts (Betts) had held of fine and imprisonment, if it shall ultimately the warrant to be valid, was discharged by the turn out that the captured citizen, though born State Courts of New York; and still more re- in a free State, and originally free, was once cently this Court, in the case of Collier, has arrested in a slave State upon suspicion of beaffirmed its undoubted power to discharge per- ing a slave, and finally, no claimant appearing sons held under color of Federal authority. for him, was sold into perpetual slavery to pay

The right, then, of the State to issue this the costs of that very arrest and detention. writ, stands on grounds as firm as the earth Bad as this is, it is not all. This Act has itself. When it goes forth, let all men know a depth of atrocity

, which no plummet shall that it is the State, exercising the highest of all ever sound. It provides a safer remedy for its attributes, which sends out its great preroga- the man-stealer. If he do not choose to risk tive writ, --- inquiring into the condition and the private caption, he may obtain a warrant restraint of its citizens, that no man to whom it of arrest from a Federal Commissioner, seize is directed, be he Marshal or Chief Justice, the alleged fugitive, take him before the ComKing, Kaiser, or President, may omit to give missioner, who is to hear the case in a summary heed to its peremptory behest, that no power manner, on such ex parte affidavits or deposion earth can absolve him from obedience to it, tions as may be produced, and if these satisfy or shield him from the consequences of disobe- him of the existence of the claim made against dience.

the fugitive, he' is to issue his certificate thereof, Taking it, then, as established that your which is made conclusive evidence of the claim

exercising the SUPREME JUDICIAL ant's right to remove, and confers upon. him Power of the State, have the right to inquire absolute authority to make that removal; and into and determine the validity of every pre- upon his mere oath that he fears a rescue, the text under which the citizen is held in cus- Marshal himself is to return the alleged fugitive, tody - I next proceed to ascertain the nature and may, if needful to accomplish that end, call and authority of that adjudication upon which to his aid the

whole naval and military force of the sheriff of Cuyahoga county assumes to the United States. “But even this is not the restrain these two citizens of their freedom. worst. The intending kidnapper: may go be

Bushnell's conviction rests upon an indict-fore some Judge of the most distant State, and ment containing a single count, which, in sub- upon ex parte evidence, perhaps his own alone, stance, charges him with obstructing the master obtain a record reciting the fact of some alleged of the alleged fugitive, without any process or slave's escape

a record which shall absolutely color of process in the exercise of the right foreclose the questions of slavery and of escape alleged to belong to the master by the Federal therefrom, 56 with a general description, of Constitution, of seizing his runaway slave such convenient certainty as may be,” of the alwherever he may find him, and taking him leged fugitive, and, under it, seize any man back by force to the State from which he who corresponds to this description, drag him escaped. Langston's conviction rests on an before any Circuit Judge of that circuit, though indictment containing two counts, the first of resident in another State, and then upon mere which is precisely similar to the single count proof of the captive's identity with this " genin Bushnell's indictment; while the second eral description of convenient certainty,” obtain charges, in substance, that Langston had ob- a warrant for the removal of the free citizen to structed a Deputy-Marshal of the United the State from which the ex parte record asserts States, in the execution of a Commissioner's he escaped (to be enforced with the whole warrant, issued to him and held by him, com- power of the Federal Government), and there manding the arrest of John, an alleged fugitive retain him in perpetual bondage. Not only from service.

may no man, even by a resort to judicial proThese indictments are each founded on the cess, attempt to inquire into the lawfulness of Act of Congress known as the Fugitive Slave the taking, but no tribunal, State or Federal, Act; the provisions of which, it is therefore may, either by the writ of habeas corpus or necessary now briefly to examine.

otherwise, molest the claimant in the exercise [Mr. Wolcott here stated the effect of each of of this power, for the prohibition of the eighth the sections of the act, which being generally section is without limitation, and includes all known, are here omitted, and then proceeded.] officers and courts, State and Federal. Indeed,

From this analysis of the provisions of the the Supreme Court of the United States, in its Act, as it has been construed by the decisions recent opinion in the Booth case, has declared hereafter to be adverted to, it results that any that the allowance of the writ in such a case man may come into one of the free States, and would be an act of " lawless violence.” The upon his mere claim that one of its apparently citizen is thus not only without the means of undoubted citizens, resident here during many protecting himself, but any endeavor to detain years, is his slave, or owes him service or labor, i him long enough to ascertain the validity of his

« PreviousContinue »