2d, Because the writ is defective.
Had the determination of this mater been placed upon the insufficiency of the writ alone, I should have had little difficulty in arriving at a conclusion, because I entertain no doubt that the writ is so substantially defective, that the discharge of the petitioner must for that cause alone have been ordered. But the petitioner has, thro' his counsel, expressed his desire to waive all objections to the form or substance of the warrant, and to rest the case solely upon his objections to the constitutionality of the law in question.
The Constitution of the United States is the fundamental law of the land. It emanated from the very source of sovereignty as the same is recognized in this country. It is the work of our fathers, but adopted and perpetuated by all the people, and thus becomes our own. It is natural that the citizen should have a more profound regard for the fundamental law of his State or Government, than for a mere act of a legislature, because the former is more directly the work of his own hand. He has, by his vote, mediate or immediate, established it as the great charter of his rights, and by which all his agents or representatives in the conduct of the Government are required to square their actions. By the standard of the Constitution, he has a right to judge of the acts of every officer or body whose existence as such is provided for by it. By the same standard he must regulate his own acts, and to it he may at all times appeal for the protection of his rights secured by it, and for a measured judgment upon his own conduct.
I recognize most fully the right of every citizen to try every enactment of the legislature, every decree or judgment of a court, and every proceeding of the executive or ministerial department, by the written fundamental law of the land. This must be done in a proper and legal manner, in conformity with the rules prescribed by that same law, or in accordance with its provisions; but no law is so sacred, no officer so high, no power so vast, that the line and the plummet of the constitution may not be applied to it. It is the source of all law, the limit of all authority, the primary rule of all conduct, private as well as official, and the citadel of personal security and liberty.
But as was said before, though I recognize the right of every citizen to appeal to the Constitution in a proper manner, (not in any mode which the individual may prescribe for himself.) such appeal should be made in good faith, and not for the mere purpose of experimenting upon the opinions of the judicial officer to whom such application is made. Every citizen has the right to test every law by the Constitution of the State or National Government according to the forms, and through the appropriate tribunals of the country. Every one has a right to resist an unconstitutional enactment of the legislature; but he does so upon his peril, until the conformity or non-conformity of the act with the Constitution is judicially determined. It is unsafe for any person to resist an act of the State or National Legislature, on the ground of its unconstitutionality, unless he is prepared to abide the consequences, in case his judgment should prove to be erroneous. Passive obedience cannot be exacted, nor can private judgment in this behalf become the rule of action.
But I do not admit the right of the citizen to complain to me of illegal imprisonment, and apply for a writ of Habeas Corpus for his discharge therefrom, and then waive or decline his discharge, except upon such grounds only, as he shall see fit to prescribe. While I am willing, faithfully to discharge my duty in every instance when called upon, and to extend the protection of the law to every person entitled to its protection, I do not admit the right of any one to devise a fictitious imprisonment, merely to experiment upon my opinions or research, in regard to particular questions of law, which may chance to be deemed of more or less interest in the community.—The petitioner has claimed that he is imprisoned without the authority of law, and asks my official interposition in his behalf. On the hearing, he sees fit to waive all objection to the form or substance of the warrant by which he is held, and to demand his discharge upon the invalidity of the law by virtue of which the warrant was issued, or not have it at all. I can neither permit nor accept such issue. If he really sought relief from his imprisonment by applying for this writ, he should be willing to enjoy such relief upon any ground which the law would sanction.—If he did not really and in good faith, desire release from imprisonment, but merely resorted to the writ of Habeas Corpus as a device by which to obtain an opinion as to the constitutionality of the Fugitive Slave Act, I feel bound to say that the occasion is not commensurate with the sacred character and beneficent functions of that writ.
I shall take this case, therefore, as the petition and the return to the writ present it for adjudication.
The act of congress, under and by virtue of which the petitioner is arrested, purports to have been enacted in conformity with, and under a power, as is alleged, granted by the third clause of the second section of the fourth article of the Federal Constitution, which is in the following words:
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor: but shall be delivered up, on claim of the party to whom such service or labor is due."
Either fortunately or unfortunately, we are left for a construction of this portion of the Federal compact, almost exclusively to the meaning to be derived from the words. There was very little debate upon the introduction or adoption of the clause, and but feeble aid is furnished from contemporaneous interpretation, for until a comparatively recent period, it has not become a subject of any very considerable discussion.
Without stopping here to inquire whether the clause in question confers upon the General Government any power of legislation in regard to the subject matter thereof, let us endeavor to arrive at its true intent and meaning, so far as it affects the rights or condition of the class of persons to whom it is supposed especially to refer.
Let it be taken for granted, that this clause was intended to refer exclusively to Fugitive Slaves, of which, I think, the history of its adoption into the Constitution leaves no doubt; the question at once arises, how far, and in what particular, does it affect the persons alluded to in it? 1st. It contemplates the fact that certain persons were or might be held to service or labor, in one or more States, under the laws thereof. 2d. That it was by the laws of such State or States alone, under which such persons could be held to service or labor. 3d. That the laws or regulations of the respective States, under which such persons might be held to service or labor, or discharged therefrom, might be different. 4th. That such persons might escape from one State, in which they were held to labor, under the laws thereof, into another State, in which such persons were held to labor under different laws, or in which they were, by the laws of the State, discharged from service or labor. 5th. That the service or labor here spoken of, is of a kind which is exacted of such persons by law, and not of a kind stipulated for by contract, and hence is in restraint of, and derogatory to human liberty. 6th. That such persons escaping from one State into another, should not be discharged by the laws of the State to which they may have fled, but that the condition of the fugitive should remain the same as it was in the State from which he fled, in case the person to whom he owed the service, should choose to claim him. 7th. That in the event of a claim by the person to whom the fugitive owed the service, under the laws of the State from which he fled, being made, he should be deliverd up, on establishing the fact that the labor or service of the fugitive was due to such claimant.
From this analysis of the clause of the Federal Constitution above quoted, it will be seen that the status of the fugitive is essentially different in this State from his status or condition in the State from which he fled. In the latter, he remained subject to all the disabilities of his class, tho' he may have escaped from the domicil or premises of his master. Here, he is entitled to the full and complete protection of our laws, as much so as any other human being, so long as he is unclaimed. He may sue and be sued; he may acquire and hold property; he is to all intents and purposes, a freeman, until a lawful claim is made for him. And this claim must be made by the person to whom his service or labor is due, under the laws of the State from which he escaped. No one else can interfere with him. If no claim is set up to his service or labor by the person to whom such service or labor is due, there is no power, no authority, nor person on earth that can derive any advantage from his former condition, or assert it to his prejudice. So long as the owner does not choose to assert his claim, the cottage of the fugitive in Wisconsin, is as much his castle; his property, liberty, and person are as much the subject of legal protection, as those of any other person. Our legal tribunals are as open to his complaints or appeals as to those of any other man.—He may never be claimed, and if not, he would remain forever free, and transit freedom to his posterity born on our soil,