AN EXAMINATION

OF THE

CONSTITUTIONALITY

OF THE

ACT OF CONGRESS,

PASSED IN 1793,

RESPECTING

FUGITIVES FROM JUSTICE.

SUPERIOR COURT OF CINCINNATI.

OCTOBER TERM, 1851.

Ex parte WILLIAM CHILDS.

HABEAS CORPUS.

THIS was a writ of habeas corpus very large amount, and now propose directed to the Sheriff of Hamilton to pay not over forty cents on the dolCounty, and issued upon the affidavit lar. Various letters after this passed of William Childs, that he was un- from time to time between the parties; lawfully restrained of his liberty by all those written by Loney, Townsend Edward M. Wise and John Zell. In & Loney containing assurances of their obedience to the command of the writ, continued confidence in the other firm, Wise and Zell disclosed the cause of notwithstanding the failure. their detention of Childs, claiming to hold him as a fugitive from the justice of the State of Maryland. Of the return made by them, and the testimony, the following may be considered a fair abstract:

So stood matters on the 20th of September, 1851, when Mr. Townsend, of the Baltimore firm, went before a magistrate in Baltimore, and made an affidavit, charging Childs with having obtained these goods upChilds is a citizen of Ohio, a mem-on false pretences. A requisition was ber of the'firm of J. Childs & Bros'. In obtained from the Governor of MaryJuly, 1850, he proceeded to Baltimore, land on the Governor of Ohio, and and there succeeded, by representing his firm as having a capital of eighty six thousand dollars invested in their business, in obtaining goods from Loney, Townsend & Loney, of that city, on a credit of eight months, to the amount of about four thousand dollars. Having made all the pur chases he wished in Baltimore, he went to New York City, made other purchases, and then returned leisurely homewards. In September, 1850, the firm of J. Childs & Bros' failed for a

Wise and Zell were deputed by the former to receive the prisoner. They obtained from Gov. Wood a warrant directed to "the Sheriff of Hamilton County," commanding him to arrest Childs and deliver him to them for transportation to Maryland. Armed with this warrant, they came to Cincinnati accompanied by Mr. B. S. Loney, and procured the services of one Dalzell, who represented himself to be a constable, and who procured what he claimed to be an authority

from the Sheriff to make the arrest. Ex parte Partington, 13 Meeson & WelsMr. Loney then sent a note request- | by,678. ing Childs to call on him at the Bur

So, too, in Pennsylvania, the rule net House, as he was there sick. Childs has been declared to be, that it is a did so, and found Mr. Loney perfectly question of expediency whether the well. Loney then told him that the Court will grant the second writ; but officers were in an adjacent room, and that they are not concluded from so unless the debt was paid in full he doing. must go to Maryland; but that if he would pay, the prosecution should be dropped. Childs declined, saying that he could make no preferences among his creditors; whereupon Loney knocked on the partition wall, and Dalzell, Zell and Wise came in, and the arrest was made.

A habeas corpus was at once issued by Judge Key, of the Commercial. Court, and upon it Chi ds was discharged on the ground of a want of power in Dalzell to act as the Sheriff's deputy. Immediately after this decision, the Sheriff arrested Childs under the warrant. A second writ of habeas corpus was then issued by the same Judge, which resulted after an elaborate argument, in an able decision remanding Childs to the custody of the Sheriff. The Sheriff then delivered him to Zell and Wise, and at this stage of the proceedings, the present writ was issued.

Several days were occupied in the argument of the case by Messrs. W Y. Gholson, Caleb B. Smith, and S. P. Chase, for the applicant; and Messrs. T. C. Ware, R. D. Handy,

and A. Taft, for Zell and Wise.

After some days' consideration, JUDGE HOADLY pronounced his opinion as follows:

As it is claimed that this Court is concluded by the decision of the Commercial Court upon every question which might have been presented upon the return and testimony in the case in that Court, it becomes necessary first to examine the doctrine of res judicata. Does it apply to proceedings in cases of this kind?

Ex parte Lawrence, 5 Binney, 304. Commonwealth vs. Hambright, 4 Serg.

& R. 149.

And in Vermont. the Supreme Court having refused to discharge one Holmes afterwards issued another writ, reheard the case, and discharged him. Holmes vs. Jennison, et al, 14 Peters, 540, and note.

George Holmes, ex parte, 12 Vermont,

631.

And that the practice has been such in Ohio, is shown by a similar decision made by Judge Johnson, in this Court, in the case of Ball vs. Hand, in 1847.

The principle which applies here is the same that controls all cases of

summary proceedings. The judgment is final, but not conclusive beyond the case in which it is pronounced. ( (See opinion of Chief Justice Taney, 14 Feters, 561.) And in actions of ejectment, which only regard possession,

the rule is the same.

The only case to the contrary is that 64, where the Court for the correction of Mercein vs. The People, 25 Wend, of errors in New York, reversing the judgment of the Supreme Court, pronounced the principle of res judicata applicable to controversies between parents for the custody of their children. That this decision, though obeyed, did not command the assent of the Supreme Court appears from their decision in the subsequent case of The People vs. Mercern, 3 Hill, 399.

And although the proceedings there are under a habeas corpus, yet they That it does not, has been decided rather resemble ordinary controversies by the Court of Exchequer, in Eng- in their character, being between two land. That Court, Baron Parke pro- parties litigant for the custody of a nouncing the opinion, held that a pris- child. Even under such circumstanoner has a right to the opinion of eve ces though, Judge Johnson, in the ry one of the Courts upon the legali-case referred to, held that the rule did ty of his detention. not apply in Ohio.

Constitution? If so, in what part of as a separate section? They are alike that instrument is this grant of power? in their nature, kindred subjects, and It is adopted from the Articles of even in the Constitution, form sections Confederation with a slight change of language, thus:

"A person charged in any State, with treason, felony, or any other crime, who shall flee from justice and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." It stands in the second section of Article 4, the first clause of which provides that

"Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."

The third and last clause provides for the extradition of fugitives from labor, while this stands between them. Why were these three provisions thrown into one section?

of the same Article. Why, unless for the reason that inasmuch as to one, which was an article of compact before, a legislative power in Congress has been added, it is properly separatThe former is ed from the others.

now no longer a mere compact between States, it includes a grant of power to the United States-the latter remain as they were.

And this view is strengthened by the fact that the 3d Section of this Article contains the grant of two powers to Congress, viz: to admit new States, and to regulate and dispose of the Territory of the United States. And the 4th Section enjoins a duty upon the United States to guarantee to each Was it not, because be- State a republican form of governing articles of compact, they naturally ment, and protect each against invaassociate together? sion. Why this separation? If there But he who compares the Articles of is a power in Congress to legislate for Confederation with the Constitution, is the extradition of fugitives, &c., why at once struck with another fact. not unite Sections 2 and 3--if a duty What has become of the last clause of is enjoined upon Congress, or the the 4th Article of Confederation, which National Government, to supervise this there immediately succeeded the clause extradition, why are not Sections 2 in question? Where, and how changed and 4 joined together? do we find it in the Constitution? The answer is to be found by reading section 1, of the 4th Article of the Constitution.

"Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other StateAnd the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

Now, why this addition, if without it the power in Congress to legislate is implied? It was not affixed, we may conclude, by men so able as those who framed this instrument, without just cause, and the result is-we cannot avoid it-that, in their opinion, without this specific grant of power, Congress would have been powerless

in this matter.

The inevitable conclusion is, that each of these Sections differ from the others. The first contains what was originally a compact, and still retains that character, with a clause, however, giving power to Congress to provide for the manner of its execution. The second contains provisions which are mere compacts --were so in the instrument from which they were taken, and are substantially unchanged in letter, or spirit, depending for their execution upon the good faith of the States, unless from the fact that the Constitution is the supreme law of the land, as well as a compact between sovereignties, they have acquired a self-executing quality. The third is a mere grant of power to Congress, and the fourth enjoins upon the General Government a positive duty.

And why is this last cited Section removed from the juxtaposition in It now becomes proper in the train which it stood in the Articles of Con- of argument, to renew a suggestion federation, and thus made a Section made a short time since. This extraby itself? And those other provi- dition clause gave no legislative power sions, its neighbors for nine long years to the Congress of the Confederation of the Confederation, thrown together --it is unchanged substantially in the

Constitution--whence then does our National Government, or any depart

present Congress derive its claim of power?

The tenth Article of the amendment to the Constitution provides that

"The powers not delegated to the United States, &c. are reserved to the States respectively, or to the people."

And to understand the force and effect of these amendments, it may be well to recur to the preamble of the resolution of the Congress of 1789, which submitted them for adoption to the States. It is this:

Judging this clause, then, by its history, its position in the Constitution, the history and position of other "The Convention of a number of the provisions, the specific grants of power States, having at the time of their adopting to Congress, and the general grant the Constitution, expressed a desire, in or- of implied power, there cannot be a der to prevent misconstruction, or abuse of doubt, that in legislating it into exits powers, that further declaratory and re-ecution, Congress has exceeded its

And this is the extent of the implied powers of Congress. There The first is the celebrated case of must be a power vested in the General Prigg vs. Pennsylvania, 16 Peters, Government, or in some department 539. The State of Pennsylvania had or officer thereof, and then Congress passed a law, among the provisions of may pass all laws necessary and proper to carry it, as well as the specific powers given in this Section, into ex