ARGUMENT OF BYRON PAINE, ESQ.
AND
OPINION OF HON. A. D. SMITH,
Associate Justice of the Supreme Court of the State of Wisconsin.
BEFORE JUSTICE SMITH.
[The Relator, Sherman M. Booth, was complained of for violating the 7th section of the Fugitive Act of 1850, by aiding in the escape of Joshua Glover, from the custody of Case. C. Cotton, Deputy Marshal of the United States, on the 11th of March, 1854.
An examination was had before U. S. Court Commissioner WInfield Smith, who required the defendant to give bail in the sum of $2000 to appear at the next term of the U. S. District Court for trial. The bail was given, and the Relator was afterward surrendered and sued out this writ of Habeas Corpus to be released, chiefly on the ground of the unconstitutionality of the Act.
The writ was obeyed by the Marshal, and a return made, to which was attached the warrant of commitment. The Counsel for the Relator demurred to the return and the hearing was fixed for Monday, May 29th, at 10 A.M.
On that day the parties appeared, Charles K. Watkins and Byron Paine for the Relator, , aud the U. S. District Attorney, J. R. Sharpstein, for the Marshal.
The District Attorney moved to quash the writ, on the ground that a "Justice" of the present Supreme Court of the State had no authority to issue it in vacation. The Habeas Corpus Act gives the power to any "Judge of the Supreme Court;" but the Act organizing the present Supreme Court styles them "Justices." He claimed that under this Act the Justices of the present Court had not all the powers of the Judges of the old Court, and that the writ could only be issued by the whole Court in term time.
Mr. Watkins replied briefly, claiming that the writ was a writ of Right, and that every Judge of a Court of Record had a right to issue it by the common law, independent of statutory provisions.
After some further discussion, the motion was overruled, and Byron Paine began his argument in support of the demurrer.]
ARUGMENT OF BYRON PAIN, ESQ
May it please the Court:
In arising to commence the investigation of this case, I do so with those feelings of strong embarrassment which must naturally result from knowing that I undertake to deal with a question more important than any that could be presented to a judicial tribunal. It is a question in which, according to my judgement, are involved, not the liberties of Mr. Booth alone, but the liberties of the whole people. I am also not unaware that it might involve a conflict between the judicial powers of the State and Federal Government. Because the validity of a law of the United States will be called in question here. A law in relation to a subject that has lowered like a dark and gloomy cloud above our political horizon, from which have blown those winds that have tossed the public mind and heart in wild commotion, as the ocean is tossed by the storms of heaven. A law in relation to a subject that stood like a stumbling block in the way of the formation of our Government, a subject that has cursed us in the past, curses us in the present, and looms up as our evil genius in the future, waiting to attend us to destruction. I need not add that we are to call in question the validity of a law in relation to American Slavery. And, Sir, we shall question its validity, for the reason that Congress, in passing it, transcended its constitutional power and encroached upon a right that belongs solely to the States.—And this is another reason that makes the question pregnant with importance. For under our system, composed of many independent sovereignties, joined in one whole under a general government which has certain delegated powers; any question involving a conflict between the powers of the whole and of each sovereign part, must be of vital interest. It should be approached with solemnity with anxious care, with moderation and forbearance.—But, Sir, in my judgment it should be approached unshrinkingly! I am not one of those who believe that the possibility of such conflicts should be avoided, by servile submission from the States. I am not one of those who believe that a State should forbear to assert its rights, for fear that they may be questioned elsewhere! I do not belong to that school, of late increasing among us, which seems to teach that the States are to look up to the Departments of the Federal Government, with all the submissive deference with which a serf is to listen to the commands of his master. On the contrary, I belong to that other, and as I believe, that true school, which has best studied the theory of our institutions, and which holds that the true interests and harmony and perpetuity of this Union are to be best promoted and preserved by confining the general government strictly to the exercise of those powers delegated to it by the Constitution, and steadfastly resisting all encroachments upon the rights of the States. We plant ourselves upon the doctrine of the sovereignty of the States, over all matters except those which they have delegated to the general government power to control. This doctrine is not denied in theory by any one.—It has been asserted by the Supreme Court of the United States. In the case of McCulloch vs. the State of Maryland, in which the constitutionality of the U. S. Bank was affirmed, the Court says, "In America the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." This doctrine is so universally admitted that I will take no time to establish it by further authorities. But the great point of the controversy upon this subject is whether the Federal Government is the exclusive judge of the extent of its own powers, or whether the States have not also the right to judge upon that matter, whenever the general Government attempts to usurp powers which they claim belong exclusively to then? And upon this point I ask leave to read one of the Virginia Resolutions drawn by Mr. Madison, and one of the Kentucky Resolutions drawn by Mr. Jefferson, in 1798, and a portion of Mr. Madison's report. If it be thought by any that it is improper to introduce these resolutions here, I can only say that in so doing, I travel in the path of precedent, and follow the Supreme Court itself, which in the Prigg case, which I shall hereafter have occasion to examine, sought to sustain itself by quoting the opinion of Mr. Madison.
