§ 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 inconsistencies [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."

1

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 judgment 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

The judgment of the State court in Ableman v. Booth appears to be reversed by the Supreme Court on this ground alone, without reference to the question of the constitutionality of the law of 1850. But in the conclusion of the Opinion (21 How. 526), Judge Taney says:-"But although we think it unnecessary to discuss these questions, yet, as they have been decided by the State court and are before us on the record, and we are not willing to be misunderstood, it is proper to say that, in the judgment of this Court, the Act of Congress commonly called the fugitive Slave Law, is, in all its provisions, fully authorized by the Constitution of the United States."

991

$777. In Ex parte Bushnell and Ex parte Langston, 9 Ohio, 76-325, the constitutionality of the Acts of Congress was sustained by Swan, Chief Justice, with Judges Peck and Scott; Judges Brinkerhoff and Sutliff dissenting. Judge Swan, ib. 185, states:-"The question before us is, whether the seventh section of the fugitive law, under which these relators were sentenced, is a nullity, for want of legislative power in Congress to pass any law whatever relating to fugitives from labor." In his Opinion he maintains the power to be in Congress; but solely on the authority of the earlier cases' in the

courts of the United States in cases arising under the Constitution and laws of the United States is now for the first time asserted and acted upon in the Supreme Court of a State."

An examination of these questions of concurrent and conflicting jurisdiction does not come within the proposed limits of this work. The law on the writ of habeas corpus in these cases has been set forth with great completeness by Mr. Rollin C. Hurd, of Ohio, in his recent work on Personal Liberty and the writ of Habeas Corpus, 164-207. The question raised by the case of United States v. Booth, is intimately connected with, if it does not directly depend upon, the question considered in the eleventh chapter-the true theory of the location of sovereign powers held by the States and the Government of the United States, as is illustrated by Judge Smith's reasoning in 3 Wisc. 190, which is based upon the extreme of one of the theories referred to in Vol. I. p. 408, note, and which was formerly advocated principally by the Southern State's-Rights school.

I am informed by A. L. Collins, Esq., of the Wisconsin bar, that on the remittitur of this case from the Supreme Court of the United States to the Supreme Court of Wisconsin, the U. S. Dist. Atty. moved that it be received and filed. The motion was argued before Judges Cole and Dixon. Judge Cole adhered to the position taken by the court on the former occasion (ante, p. 521, note 2). Judge Dixon held that the Supreme Court of the United States had appellate jurisdiction, and that the remittitur should be received and filed. On this division the motion failed. A statement of the grounds of his opinion is said to have been published by Judge Dixon, about February, 1860.

* In this Opinion Judge Swan elaborately maintains the doctrine that the decisions of the Supreme Court of the United States in respect to the distribution of sovereign power between the States and the national Government bind the State

national and State courts, and on general acquiescence in the law of 1793, particularly in reference to fugitives from justice. (9 Ohio, 186-191, 197, 198.) His argument, therefore, throws no light on the question of construction here considered, nor in relying on Prigg's case does Judge Swan indicate what construction of the provision he would find given by the Supreme Court of the United States; except by saying, on ib. 186:— "That court have held unanimously, that, inasmuch as the Constitution of the United States secured by express provision the right to the reclamation of escaped slaves, the obligation to protect and enforce that constitutional right devolves upon the general government." This statement of the doctrine does not indicate whether the right is, in the first instance, correlative to a duty on the part of the States, which the national

courts in cases subsequently occurring; that there is no alternative between this doctrine and a forcible collision between the State courts and the national authorities. (See particularly 9 Ohio, 195.) This doctrine should be distinguished from that recognition of the supremacy of the Supreme Court of the United States to determine the rights and obligations of private persons in the cases which actually are before it for adjudication which is made in the earlier part of this work (Vol. I. pp. 428-432). The doctrine there intended is that, where the question is of the possession of sovereign power, the judiciary cannot determine it for future cases; the national executive and legislative departments in their action and the several States in all their departments must still interpret the Constitution according to their convictions-subject always to the power which the national judiciary has over the question when it arises in the application of law between individual persons. This seems to be Judge Sutliff's doctrine in this case. (9 Ohio, 318.) The contrary doctrine destroys the independent action of the three functions of power, in the one case, and, in the other, renders State power a thing by permission and State sovereignty a name. It is morally certain that a series of decisions, without flaw of jurisdiction, supported by opinions consistent with themselves and with other expositions of the same tribunal and recognized by a majority of State anthorities, will work the practical settlement of any such question. But any number of cases should not determine, if the majority rest on some one or two decisions, and if these were exceptionable in jurisdiction or derived through the medium of reasonings lame, halting, contradictory, and of far-fetched implications, derived from unwarranted assumptions and false history." (Brinkerhoff, J., 9 Ohio, 227.) Judges Swan and Peck also seem to think that if a State court concludes against the constitutionality of a law of Congress, it must repudiate the authority of the Supreme Court to determine the rights of the parties in the particular case. This was apparently also the doctrine of the Wisconsin court in Booth's case, in refusing to certify their record. This is the other extreme. The true doctrine is, I think, that the State court must acknowledge the appellate jurisdiction of the United States judiciary and submit to its judgment, in the particular case. It is not for the State judiciary to force the State Government or the people of the State to resist the assumption of power by the national Government. The right of doing this rests, if anywhere, with the legislature or with "the people" of the State in Convention. The supposable instances of practical usurpation do not invalidate the doctrine. There are difficulties practically attending on any solution of such a question.