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to perform that act in their place and stead, by allowing it to be assumed that they would not perform their agreement.

Judge Smith appears to have misapprehended the construction of this provision upon which Judges Story and Wayne based the legislative power of Congress. It has been shown (ante, $$ 754, 762) that these judges did not support the second construction; though there is much in the Opinions delivered by them which is consistent with that view.

In the same Opinion, on pages 107-110, Judge Smith then examines the position taken in the Opinions delivered by Judges Story and Wayne in Prigg's case, that to require the owner of a fugitive slave to make a claim for him before any public authority would be "a discharge pro tanto." He then, on pages 110-115, excepts to the jurisdiction of the United States Supreme Court in Prigg's case. From this portion of the Opinion some sentences have been noted, ante, pp. 456, 459. On pages 115-125 Judge Smith again controverts the interpretation given to the provision, in that case, under which the owner is allowed to seize and remove the slave as property.

He then,' on pages 125-131, argues that the United States

13 Wisc. 125. 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 seq.; 1 Kent's Com. 388, 390; Gibbons vs. Ogden, Wheat, 203; 4 Wheat. 122; 5 Wheat. 1; 2 Dall. 386; 2 Wheat. 259; 3 Wash. C. C. Rep, 316, 322; and cases 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; that because the States and the people thereof have parted with some of the attributes of their proper sovereignty, therefore they have parted with all which they have not expressly reserved!

"These are the grounds upon which the doctrine of Prigg vs. Penn, 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."

After alluding again to the consequences which must follow from admitting that the rights of ownership exist in the State in which the fugitives may be found "to the same extent" as in the State from which he escaped, Judge Smith proceeds, on p. 127:

'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 Constitu

Supreme Court's construction of the provision is a violation of rules sanctioned by its own previous decisions. This portion of the Opinion bears on the question here considered, and is given in the note below.

tion guarantees the right, and if it requires the delivery 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. An 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; [128] but because this duty is enjoined by that instrument, will it be pretended that if the States do not perform it, the United States may? and thereby assume to the United States Senate the power to fill vacancies which may occur in that body? Yet this is the doctrine of the Supreme Court of the United States in the case of Prigg vs. Pennsylvania.

"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 [129] States, to put these agitating questions forever to rest.'

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 be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound 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 gov. ernment, it is difficult to perceive. Many, very many clauses are found there

§ 773. It appears then that of the three members of the Court, Chief Justice Whiton and Judge Crawford may have supported the second, third, or fourth construction of the provision as the basis of the power of Congress, and that Judge Smith, denying the power, supported the first construction.

§ 774. Booth, having been discharged on this occasion from the custody in which he had been held under the warrant of the U. S. Commissioner, was afterwards committed, to

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 this 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 [130] to prescribe the mode and State functionaries by which this duty that the States voluntarily bound themselves to observe, should be executed. It would have been as gross an impeachment of their integrity and honor, as is the decision of the court in this case. It would have been treated as the unworthiness of the suggestion had merited. But if the clause had contemplated federal action, what would have been more appropriate, than to point out the mode by which it was to be exercised, or to designate the federal functionaries who were to execute it. Indeed, it is inconceivable, that the convention should have contemplated the execution of this clause by the federal government, and should have prescribed no mode of execution, nor even grant any power to prescribe one; especially, when just before they had perceived the necessity of such grant in regard to the faith and credit to be given to public records of the States, and made the grant accordingly.

"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 incon sistencies [131] which it is difficult to follow and obey, even to preserve the rule of judicial order stare decisis,' or 'to maintain a dignified judicial subordination."


"The very 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."

answer the indictment found against him in the District Court, under a warrant issued by Judge Miller, of that court. On the 21st July, 1854, application for a writ of habeas corpus on his behalf was made to the Supreme Court of the State. The writ was refused by the court, Judges Whiton and Smith, who decided that since it appeared from the petition that the question of the liberty of the prisoner was then pending before another judicial tribunal, the State court would not interfere by the writ. Ex parte Sherman M. Booth, 3 Wisc. 145.

$775. On trial of the indictment in the U. S. District Court, Booth and Rycraft were sentenced to punishment by fine and imprisonment. A writ of habeas corpus issued on petition, from the Supreme Court of the State, Jan. 23, 1855, and on hearing counsel for the prisoners (the U. S. Attorney not appearing) they were discharged on the ground that the copy of the indictment and record of conviction returned by the Sheriff showed that the District Court had no jurisdiction, and that the conviction was void, and the imprisonment illegal. In re Booth and Rycraft, 3 Wisc. 157. In this decision the three members of the court concurred. Chief Justice Whiton and Judge Crawford maintained this decision without reference to the question of the constitutionality of the Act of Congress, and the latter Judge, it will be remembered, had, in the case of Ableman v. Booth, held the act to be constitutional.' Judge Smith agreed with the other judges that the insufficiency of the record to show that the prisoner had been convicted of a crime within the jurisdiction of the District Court was sufficient ground for his being set at liberty. But he also held that the nullity of the conviction by reason of the unconstitutionality of the law of Congress was sufficient ground for discharging the convicted prisoner.

$776. In the Supreme Court of the United States, December term, 1858, the judgments of the Supreme Court of Wisconsin, in Ableman v. Booth, of June term; 1854, and Ex parte Booth of December term, 1854, were argued, together, on the part of the United States, no counsel appearing for the defendants in error, and were together reversed by that Court."

1 Ante, p. 504.

Ableman v. Booth was carried up to the court by writ of error with the

Chief Justice Taney, delivering the Opinion of the court, Ableman v. Booth, and United States v. Booth (21 Howard, 506), discusses exclusively the question raised in the second of these cases, of the authority of a State court to examine the lawfulness of custody under the decree of a United States judicial tribunal. He does not distinguish it from the question raised in Ableman v. Booth, of the authority of a State court in reference to imprisonments under color of the authority of the United States and not by the authority of a United States court. The Opinion appears to deny State jurisdiction equally in either case.'

usual return of the clerk and a certificate of the State court. It was submitted to the judgment of the U. S. Supreme Court, by the defendant, on "the reasoning in the argument and opinions in the printed pamphlet therewith sent." 21 How. 509. To the writ of error issued in the second case, United States v. Booth, returnable before the Supreme Court of the U. S., the clerk of the Wisconsin Supreme Court made no return, having been directed by the State court to make none, and to "enter no order upon the journal and records of the court concerning the same." But after service on the same clerk of an order to make the return, and proceedings had before the U. S. Supreme Court (U. S. v. Booth, 18 Howard, 476, and 21 Howard, 512), the copy of the record filed by the Attorney General was received and entered on the docket, "to have the same effect and legal operation as if returned by the clerk with the writ of error."

'It has been shown in the first Vol., pp. 494, 495, that the State courts have generally claimed the right to inquire into the lawfulness of every detention of persons under color of the authority of the United States. It should, perhaps, have been there added that it is generally understood that every detention shown to be under process, order, or judgment of a U. S. court, is by the State court deemed lawful; even though that court may be of opinion that the U. S. court had erred in its action. The remedy against such error is supposed to be in the revisory action of the U. S. judiciary. The doctrine generally received is, therefore, that the state courts inquire into the lawfulness of custody under color of authority of the United States, when not shown to be under authority of some United States court. Some judges of United States courts have denied the right of the State judiciary even when thus limited. (See Judge Nelson's charge, ante, I. 496.) It appears to be denied by the U. S. Supreme Court, by their decision in Ableman v. Booth, since the court does not rest its decision of that case on the constitutionality of the law of 1850.

On the other hand, the doctrine of the Supreme Court of Wisconsin in Er parte Booth and Rycraft, seems to be new. Taney, Ch. J., says, 21 Howard, 513, that in this case "the State court has gone a step further" than in Ableman v. Booth, "and claimed and exercised jurisdiction over the proceedings and judg ment of a District Court of the United States, and upon a summary and collateral proceeding, by habeas corpus, has set aside and annulled its judgment and discharged a prisoner who had been tried and found guilty of an offence against the laws of the United States, and sentenced to imprisonment by the District Court. And it further appears that the State court have not only claimed and exercised this jurisdiction, but have also determined that their decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court pursuant to the Act of Congress of 1789, to bring here for examination and revision the judgment of the State court. These propositions are new in the jurisprudence of the United States as well as of the States; and the supremacy of the State courts over the

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