panying the petition was a copy of the process, by virtue of which, it was alledged, the petitioner was held in custody.
This writ purported to be what is commonly called a mittimus, issued by Winfield Smith, Esq. "a Commissioner duly appointed by the District Court of the United States for said district (District of Wisconsin) under and by virtue of the several acts of Congress," and recited that the petitioner was "charged on oath with having, on the 11th day of March, 1854, at the city of Milwaukee, in said County and District, unlawfully aided, assisted and abetted a person named Joshua Glover, held to service or labor in the State of Missouri, under the laws thereof, and being the property of one Benjamin S. Garland, and having escaped therefrom into the State of Wisconsin, to escape from the lawful custody of Charles C. Cotton, a Deputy of the Marshal of the United States for the District of Wisconsin, the said Charles C. Cotton having then and there arrested and taken into custody the said Joshua Glover, by virtue of a warrant issued by the Judge of the United States for the said District pursuant to the provisions of the act of Congress in that case made and provided, approved Sept. 18th, 1850," &c. The writ goes on to recite an examination before the Commissioner, its result in holding the petitioner to bail, the giving of the required bail, his subsequent arrest and surrender by his bail, the order of the Commissioner to enter into recognizance again, his neglect and refusal so to do, and hence the issuing of the writ; and close with the following command: "Now, therefore, you, the said Marshal, are hereby commanded forthwith to convey and deliver into the custody of the keeper of the said common jail, the body of the said Sherman M. Booth, and you, the said keeper of the said common jail, are hereby commanded and required to receive the said Sherman M. Booth into your custody in the said jail, and him there safely keep, until he shall be discharged by due course of law."
In his application or petition, the petitioner alledged the illegality of his imprisonment to consist in the following, viz: That the act of Congress, referred to in the said warrant, is unconstitutional and void; also, that Congress has no constitutional power or authority to punish the offence with which said Booth is charged, and for which he is detained; that the act of Congress of 1850, is in violation of the provisions of compact, unalterable, except by common consent, contained in the Ordinance of 1787, for the government of the Territory northwest of the Ohio River, and that therefore said act is not in force in said State. "And also that it is alledged in said warrant; and also in the complaint on which the same was founded, (all of which appears by said warrant) that the said Joshua Glover was the property of the said Benjamin S. Garland, whereas the said act of Congress, under which said complaint was made, punishes the aiding, &c. in the escape of 'persons held to service or labor under the laws,' &c. and not the aiding in the escape of 'property,' for which reason said warrant is defective in substance and form."
Upon this application, I could not hesitate to issue the writ according to the prayer of the petition. I had hoped indeed, that, inasmuch as at least two opportunities had been presented to the petitioner, since his original arrest, to apply to the Supreme Court in term time for this writ, that he would have done so, had he been disposed to avail himself of its instrumentality. The Court was in session at the time of his arrest, and an adjourned session was held, commencing the 15th day of May, at either of which times the petitioner might have presented his application, and obtained the opinion and judgment of the whole court, and I am at a loss to conceive the motive which may have induced him or his adviseres to forego such opportunities. But I have no right to complain that any citizens calls upon me for the discharge of any duty pertaining to my office. I do not complain. Yet I cannot but feel the immense responsibility thrown upon me alone, and may be pardoned for expressing my regret, that I am deprived of the aid and counsel of my associates, so much better able to cope with the grave and intricate questions involved than I am myself. Whether by design of from necessity this application has been made to me, I meet the emergency with all the anxiety and concern which it cannot fail to excite, and I hope with some share of the firmness which the occasion and the nature of the questions involved imperatively demand.
There was no question pertaining to the subject matter of the application, nor connected with the parties, which approached in the slightest degree to a conflict of jurisdiction between the State and Federal Courts, or the Judges thereof. The warrant, by virtue of which the petitioner was held, was not issued by a Federal Judge or Court, but by a Commissioner of the District Court of the United States. No exclusive or ultimate jurisdiction can be claimed for an officer of this kind. As one of the justices of the highest judicial tribunal of this State, which tribunal represents in that behalf the sovereignty of the State, I could not deny to any citizen or person entitled to the protection of the State, the proper process by which the validity of a warrant issued by such authority, could be examined. Nor can I admit that a Court Commissioner, holding his appointment at the will of the Court, responsible only to such Court, in fact irresponsible and unimpeachable, has the right or the power, or can have the right or the power, to issue any process by which a citizen of the State may be imprisoned, that may not be examined, and its validity tested by the proper judicial authority of the State. Indeed, we may go farther, and say, that as every citizen has a right to call upon the State authority for protection, and as the judicial power is that only to which application can usually be made by the citizen, it is the duty of the judicial officer, when applied to, to see that no citizen is imprisoned within the limits of the State, nor taken beyond its limits, except by proper, legal and constitutional authority. It is not in the power of anybody to divest the State Judiciary of such authority, nor can anybody but the people themselves, absolve the judicial officers of the State from the performance of their duty in this behalf.
It is not necessary here to inquire what would be the force and effect of a warrant like the present one, were it issued by a judicial officer of the United States. I confess, however, that I have never been able to appreciate the liability to, or danger of, or necessity for collision between the judicial and ministerial authority of the States and the United States.
The line of demarcation is not very dim, and a proper regard to the peculiar functions of each class of officers, will render all apprehension on that score, a work of supererogation. But the States will never submit to the assumption, that United States Court Commissioners have the power to hear and determine upon the rights and liberties of their citizens, and issue process to enforce their adjudications, which is beyond the examination or review of the State Judiciary. They will cheerfully submit to the exercise of all power and authority by the Federal Judiciary, which is delegated to that department by the Federal Constitution, but they have a right to insist, and they will insist, that the State Judiciary shall be and remain supreme in all else, and that the functions of the Federal Judiciary within the territory of the States, shall be exercised by the officers designated, or provided for, by the Constitution of the United States, and not be transferred to subordinate and irresponsible functionaries, holding their office at the will of the Federal Courts, doing their duty and obeying their mandates, for which neither the one nore the other is responsible.
Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted, and as rigidly sustained.
It is only by exacting of the Federal Government a rigid conformity to the prescribed limitation of its powers, and by the assertion and exercise on the part of the States of all the powers reserved to them, and a due regard by both to their just and legitimate sphere, that obedience can be rightfully exacted of the citizen, to the authority of either.
Entertaining the opinion that a Commissioner of a United States Court had not rightful authority to imprison a citizen of this State, or any other person entitled to the protection of its laws, by any process which precluded the State authority from inquiring into the proceedings of such Commissioner, and on inspection of the writ, a copy of which was presented with the petition, I could not deny the writ of Habeas Corpus prayed for.
The Marshal to whom the writ was directed, in conformity with the double allegiance which we all owe to the State and to the United States, promptly made return, bringing the body of the petitioner before me, and showing us the cause of his caption and detention, a copy of the mittimus herein before mentioned.
The petitioner demurred to the return of the Marshal, and thus the whole question of the legality of the Commissioner's process, both in respect to its form and substance, and the validity of the law of Congress, for the alledged violation of which the petitioner was arrested, is fairly and fully presented.
The petitioner demands his discharge from imprisonment on two grounds:
1st, Because the law of Congress, approved the 18th of September, 1850, in relation to the extradition of fugitives from service or labor, is unconstitutional; and