It is apparent, therefore, that the fugitive slave leaves his condition of slavery behind him, and takes with him into this State, only the dread contingency of the assertion of the claim of the person from whose service he has escaped, upon the establishment of which he may be reduced to his former condition.
The act of Congress of 1850, fully recognizes this view of the Constitution, and contemplates the recapture of the fugitive, as dependent entirely on the claim of the master. The sixth section provides that "the person or persons" to whom such service or labor may be due, or his, her, or their agent or attorney duly authorized by power of attorney in writing, acknowledged and certified under the seal of some legal officer or Court of the State or Territory in which the same may be executed, may pursue and claim such fugitive person, &c." No one but the owner, or his agent, or attorney, appointed by writing, may claim him. No one may volunteer to render his neighbor a friendly service, by capturing in his behalf, and returning to him his fugitive. It must be the master's own act and its responsibilities all his own.
This writ simply asserts, as the cause of the petitioner's arrest, that he "aided, abetted and assisted a person named Joshua Glover, held to service or labor in the State of Missouri, under the laws thereof, and being the property of Benammi 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 U. S., 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 U. States for the said District pursuant to the provision of the Act of Congress in that case made and provided, approved Sept. 18, 1850."
The material allegations herein contained, are, that Glover was held to service or labor, in the State of Missouri, under the laws thereof, had escaped therefrom, and was the property of Garland. All this may be very true, and yet Garland may never have claimed Glover. Some one else may have caused the arrest without the authority or wish of Garland. There is no allegation that he was claimed by any one, whomsoever; much less that the claim of Garland was interposed, without which, Glover was as free as Garland himself. It is true the writ recites that Glover was in the lawful custody of the Marshal, by virtue of a warrant issued by the District Judge under the provisions of the Act of 1850. But it is to be remarked, that the mere recital, that such custody was lawful, is not sufficient. The lawfulness must affirmatively appear by facts set forth in the warrant. But admitting that Glover was in the lawful custody of the Marshal, it still does not appear that he was in such custody as a fugitive from labor. Though the warrant for his arrest was issued under the Act of 1850, yet it by no means follows that he was arrested as a fugitive.
The petitioner is arrested under that act, and Glover may have been charged with some violation of it for which he was liable to arrest. The gist of the offence with which the petitioner is charged, as described by the act of 1850, is the aiding, abetting or assisting the person so owing labor or service, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid." There certainly is no such charge in the warrant of commitment returned here. There is no averment of a claim by Garland, even admitting that the allegation of property in Garland implies that service or labor was due to him. There is no allegation that Glover was in custody as a fugitive from labor, or that the petitioner aided in his escape from any claimant, his agent or attorney, nor any other person lawfully authorized to hold him as such fugitive.
I have been referred to two or three cases, going to show that strict technical exactness is not required in preliminary warrants. This is undoubtedly the true doctrine.—Where the defendant was charged in the warrant with having committed the crime of larceny, it was held sufficient. (Wart. Prac, 502) But in all these cases, the language used imported a crime, an act Malum in se. In all cases where the offence is merely Malum prohibitum, it must be set out in the warrant substantially in conformity with the statute which creates it.
The offence here charged is peculiarly the creature of the statute. It is not resistance to the Marshal in the execution of his duty; it is not the breaking open the jail; it is not a rescue as known to the common law, but it is intended to be the aiding of a fugitive slave to escape from the service to which he is held. It is a penal statute and must be construed strictly. It is in restraint of freedom and, therefore, every presumption arising under it must be in favor of liberty. It creates a new offence, and adds new and severe penalities, and, therefore, all process and prosecution under it, must be in substantial conformity with its requirements. I do not mean to say that a warrant for arrest or commitment for trial must contain all the particularity of an indictment, but to say what I understand the law to be, that it must contain the substance of the offence charged, as the same is described in the statute. No greater strictness is applied to this warrant, than the law applies to all process of that class; though a much stricter rule might be justified; for this is a "wicked and a cruel" enactment, and those who feel compelled to execute it, may well require of those who demand official service at their hands, that in taking their "pound of flesh" they shall not "shed one drop of Christian blood."
Since the close of the argument upon this case, there has been placed in my hands the act of Congress, approved Feb. 26, 1853, commonly called the Fee Bill. That act provides among the various provisions in regard to the fees of officers, witnesses, &c., as follows: "When two or more charges are, or shall be made, or two or more indictments shall be necessary to arrest and commit him for trial, and it shall be sufficient to state in the write, the name or general character of the offence, or to refer to them in very general terms."
This provision does not change the law; it is only designed as as restraint upon the Clerk or Commissioner, preventing him from issuing a multiplicity of warrants where one would answer, and to guard against unnecessary prolixity, merely for the purpose of swelling the fees of such officers, where he is paid by the folio. What had been the experience of Congress or heads of departments, which suggested this enactment I do not know, but it certainly was never designed to create, nor does its language tend to establish a new rule of law, abrogating the law which requires the charge against the citizen to be plainly set forth in the warrant for this arrest. Here are not two offences charged, and if there were, the rule of law would be the same.
The warrant, a copy of which is returned by the Marshall, as the authority by which the prisoner is held, is clearly, substantially and radically insufficient, and the petitioner is, therefore entitled to a discharge.
And here, perhaps, I might dismiss this case, and avail myself of the defect of the process to escape from the performance of my further duty in the premises; but it is further urged that the Act of Congress of 1850 is unconstitutional and void. I would gladly escape from the responsibility of deciding upon a question so grave. It would be a much more easy and quiet course to stop her, if I could reconcile such a course with my sense of duty. But believing as I do, that every State officer who is required to take an oath to support the Constitution of the United States as well as of his own State, was designedly placed by the Federal Constitution itself, as a sentinel to guard the outposts as well as the citadel of the great principles and rights which it was intended to declare, secure and perpetuate, I cannot shrink from the discharge of the duty devoted upon me. I know well its consequences, and appreciate fully the criticism to which I may be subjected. But I believe most sincerely and solemnly, that the last hope of free, representative and responsible government rests upon the State sovereignties, and the fidelity of State officers to their double allegiance, to the State and Federal Government, and so believing, I cannot hesitate in performing a clear, and indispensable duty.— Seeking and enjoying the quiet and calm so peculiar to the position in which I am placed, I desire to mingle no farther in the political discussions of the times, than the clear suggestions of official obligation require.
But he who takes a solemn oath to support the Constitution of the United States, as well as of the State of Wisconsin, is bound by a double tie, to the Nation and his State. Our system of government is two-fold, and so is our allegiance. Federal officers feel less of this, because their oath binds them only to the Constitution of the United States but State officers have the weight of both resting upon them. To the latter is peculiarly the duty assigned, or rather upon the latter, of necessity, does the obligation rest, of ascertaining clearly, and of asserting firmly, the peculiar powers of both governments, as circumscribed by the fundamental law of each. To yield a cheerful acquiescence in, and support to, every power constitutionally exercised by the Federal Government, is the sworn duty of every State officer; but it is equally his duty to interpose a resistance, to the extent of their respective powers, to every assumption of power on the part of the General