The Cass County Republican. [volume], February 21, 1861, Image 1

About The Cass County Republican. [volume] (Dowagiac, Mich.) 18??-1880

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VOLUME nr.
DOWAGIAC, CASS COPTY, MICHIGAN, THURSDAY, .FEBRUARY.-21,. 1861.
NUMBER 44.
- r ii i
Ay W V
, . Is Published eTery .Thursday,
At Dowagiac, Cass County Michigan.
BxW.IL CAMPBELL. .!
OFFICE:
m G. C. Jones & Co.'s New Brick Block.
Terms of Subscription.
To office and mail subscribers 91 ,00 per annum,
tXTAKIABLY Ilf AdYANCB.
When leflbr the Carrier, Fifty Cents additional
Vill be charged on regular rates.
'. - Rate of Advertising.
(Twelre lines or less considered as a Square.)
1 w.3w 4w. 3m.
6 m. 1 1 yr.
TJne Square..
601 1.00 1 1.25
2.50
3.50 5.00
ma..
100 2.50 3.00
6.00
Too
8.00
T2T00
15.00
Culumn..
8.00 1 8.75 j 4.50
4.00 1 5.00 1 6.00
20.00
X Column.,
10.00
15.00
25.00
iToE
00 1 7.00 1 8.00
15T00
25.00 j 60.00
The priTileges of yearly advertio?r will be con
fined rigidly to their business, and 11 other adrer
tisements not pertaining to their regular business,
to be paid for extra.
-All legal adrertisements charged at the statute
prices.
All transient adrertisements to be paid for in
adrance.
tTHt ASOYB TkRXS WILL BE. STBJCTLT AD-
KftED TO.
JosWok erery description neatly exe
cuted with promptness, on the most , favorable
terms. Orders solicited. .. -
PROi'KSSIOITAIi
, : C. M. O'DELL, M. D.
Homeopathic Physician. Surgeon
and Obstetrician.
Haring bought out Da. Bakxes and taking his
Practice, feels happy to say to the citizens of
Dowagiac ' and ricimty, that he is prepared to
Practice his Profession in all its branches. Be
- also keeps Medicines by the ease or single phial
for sale and Family Guides. Office at the former
' residence of Dr. Barnes.
Dowagiac, January 28th, 1861. jan31-41yl
GEO. W. FOSDICK, M. D. .
Office orer Mr. Bates' Proriairn Store, Front
" Street, Dowagiac uot22-31t1
M. PORTER, M. D.
rilYSICSt AJN" & SURGEON.
Office at Al ward's Book Store, Denison Block,
. Front Street. Residence first door below the
Methodist Church, Commercial St., Dowagiac,
Mich.
V. E. CLARKE, M. D.
Physician k Surgeon. Office at his residence, on
Division Street, directly north of the Methodist
Church, Dowagiac, Mich. '
W. II. CAMPBELL,
Notary Public. Will attend to all kinds of Con
veyancing Republican Office." Dowagiac. Mich.
. JUSTUS GAGE, ,
Notary Public and general Agent for the exchange
and transfer of Village Lots, and sale of real
. Estate. Agent for the Manhattan and Irving
" Insurance Companies, of New York, Office with
James Sullivan, front room, second floor, Jones'
Brick Block.
CLARKE &. SPENCER,
Attorneys and Counsellors at Law, and Solicitors
in Chancery. : Office in G. C. Jones & Co.'s
; Block, Dowagiac, Michigan. Especial attention
given to collections throughout the North-west.
Jostra B. Clabkb. James M. Spencer.
JAMES SULLIVAN,
Attorney and Counsellor at Law, and Solicitor in
Chancerr. Dowagriac. Mich. Office on Front
Street.
D. II. WAGNER,
Justice of the Peace and Collecting Agent, Dowag
iac, Mich. Office on Front Street.
CLIFFORD SIIANAI1AN,
Attorney and Counsellor at Law, and Solicitor in
Chancery, Cassapolis, Cass county, Mich.
CHARLES W. CLISBEE,
Attorney and Counsellor at Law, Solicitor in
, Chancery, and Notary Public, Cassopolis, Cass
- Co., Mich. Collections made, and the proceeds
" promptly remitted. .
MERCHANTS.
C. D. DAVIS,
"' Watchmaker and Engraver, '
Dowagiac, Mich. Particular attention paid to all
... kinds of Watch, Clock and Jewelry repairing,
and Letter Engraving. Shop in Griswold's
". Grocery Store. ' -
1. B. All work warranted. nov8-29tf '
.11. B. MACKJN,
Tailor, Dowagiac, Mich. Shop second door east of
Alward's bookstore. Cutting and making done
on short notice. All work warranted.
TUTHILL & STURGIS,
Dealers in Dry Goods, Groceries, Boots and Shoes,
llats and Caps, Clothing, Crockery, Ac, Ac
Dowagiac, Mich., . . -rCracs
f cthill. . ' Wm. R. Stcrgis.
. GEORGE SMITH,
Tailor. Shop over Brownell's Hardware Store.
Cutting ana Making done to order, and warran
- ted to fit.
';." ' A. If. ALWARD,
General Dealer in Books, Stationery, Periodicals,
Wall Paper, Window Shades, Wrapping Paper,
. Pocket Cutlery, Ac. Dennison Block, Dowagiac,
Mich. . . , - . r
G. C. JONES & CO., .
ealers in Dry Goods. Groceries. Boots and Shoes,
Crockery, Glassware, Hats and Caps. Front
'Street, Dowagiac, Mich.
DANIEL LARZELERE,
IDealer In Drv Goods. Groceries. Boots and Shoes.
Crockerr. Hats and Caps, Glassware. Paints and
Oils, Hardware, Ac, Ac. Front Street, Dowag-
iacj Mich,
Mammoth Stor, ;
- ".. : n. jj. Dl2NMAi?r"r '"
CJankinir and Exchange Office. Dowasiac, Mich.
Buy and sell Exchange, Gold, Bank -Notes, and
Land Warrants.-. Pav interest on School and
.Swamp Lands, and Taxes in' all parts of the
State.
- DOWAGIAC NURSERY.
33EELEY A COLE, having established themselves
in me Purser v xuiucsb m mis Tuiaze, wui iur
nish to order Fruit and Ornamental -Trees. Law.
- ton Blackberries, Cherry Currants, Grape Vines,
t Evergreens, and everr variety of Shrubbery.
1ST" Office on the corner 01 commercial st., near
thePost Office.
T. P. SEELEY, M. D.
WM. P. COLE. -; :
' P. D. BECKWITH,
Machinist and Engineer.. Foundry and Machine
Shop at the foot of Front street, near the rail-
ruau vitmtc, uywiu alien.
FJnc Pocket Knives
' ' ' ' AT
ALWARD'S BOOKSTORE.
CASH FOK EAGS
; ; AT ...
AWARD'S BOOKSTORE.
SCGAR, TEA, COFFEE, SODA, CANDLES,
SOAP.FISH, RAISINS, FIGS, at the Bakery
A- O. T0WNSEND.
Twin Pictures.
BT A. H. A.
Gaily dawned the bright'ning morning,
And the youthful day was glad :
Hazy shadows came at mid-day,
And the olden day was sad ;
Soon the misty vapors falling,
Trickle down the weeping sky,
Till the golden sunset's purple
Tolled the mid-day shadows by;
While the clouds which darkened over,
As they wane and fade away,
Seem but mountains, heaven tinted
Bluffs along the trail of day.
Thus has life its cloudless dawnings,-
Till the mists of grief arise ;
Thus has life its clouded noon-day,
Gath'ring tear-drops, weeping skies.
But with every tear-drop falling.
Fade the darkest shades away,
Till the beck' mug beams of evening
Tint the clouds with golden ray ;
And the misty sorrows over - -
Lighted up with heav'nly love
Show the track where mortals travel .
To the land of light above.
The Personal Liberty Laws.
Majority Report of the House Judi
ciary Committee:
In the Honse of Representatives of
this State, on Friday last, Mr. Pringle,
from the majority of the committee on
the Judiciary, reported adversely on
the bill to repeal certain sections of the
act to protect the rights and liberties of
the inhabitants of Michigan. The fol
lowing is the report : :
The majority of the Committee on
Judiciary, to whom, was referred a bill
to repeal sections two, three, and tour,
of an act entitled " An act to protect
the rights and liberties of the inhabit
ants of this State," approved February
13, 1855, have had the same under con
sideration, and have endeavored care
fully to consider all the reasons which
may be offered for and against the bill.
In view of the importance which this
subject has assumed in the public mind,
and the fact that those who have
thought it worth their while to argue
the legal questions involved have, for
the most part, seemed to lose sight of
certain considerations and legal rules
which are believed to fully sustain the
law as a constitutional enactment, it
has been deemed proper to set forth
somewhat at length, the reasons which
have influenced a majority of the com
mittee. The sections which it is proposed to
repeal contain the following provisions:
1st. That all inhabitants of this State,
arrested and claimed as fugitive slaves,
shall be entitled to all the benefits of
the writ of habeas corpus and of the
trial by jury.
2d. That if the writ be sued out in
vacation and the alleged fugitive be
not discharged, he 6ball be entitled to
an appeal to the Circuit Court for the
county, on furnishing reasonable bail.
3d. That, on the trial of the issue be
fore the officer or the court, either party
may demand and have a trial by jury
of the questions of fact.
4th. That, in case of costs being
charged against the alleged fugitive,
the State shall pay them.
The latter provision is one to which
the claimants of fugitive slaves are not
likely to object, it being to their benefit.
It is, perhaps, more liberal than the cir
cumstances of the' case demand, or
than is required for a faithful compli
ance with the clause of the constitution
relating to the rendition of persons es
caping from service or labor, but it is
believed to be better to retain it, at
least for the present, than to render the
State liable, by its repeal, to the charge,
however unjust, of " unfriendly legis
lation."
The important inquiry, as to the ob
ject and purpose of the law 01 185a
(including the sections proposed to be
repealed), must be answered by a con
sideration of the statute itself, of other
enactments and judicial decisions, and
also of certain . rights guaranteed by
the Federal constitution. It must be
construed for the purpose intended in
accordance with such rules of construe
tion as are adopted in the courts of
law, and by such rules the question of
its validity must be determined.
The title of the act indicates in so
many words a purpose " to protect the
rights and liberties of the inhabitants
of this State and the title of an act,
as well as its preamble, may be used to
explain its meaning or object, whenever
necessary. The constitution of Michi
gan (sec. 20, art. 4) provides that " No
law shall embrace more than one ob
ject, which shall be expressed- in its
title." This clause, it is submitted,
renders imperative upon courts the rule
to construe the act first and only for
the purpose indicated in its title. This
aet, therefore, only relates to the pro
tection of those dwfllinsr permanently
in this State, for 6uch is the meaning of
the word "inhabitants," used both in
the title and act itself. It must also
have a construction limited to the pro
tection of the legal rights and liberties
of the class of persons mentioned.
Sections 6 and 7 of the act prescribing
penalties for violation of the rights of
free men afford also a strong implica
tion as to the general object of the law,
While the fact undoubtedly is that the
law was enacted principally on account
of the obligation of the State to pro
tect free blacks and persons of color re
siding in it from being carried into
slavery by any summary process, it
may also be said to be strictly within
the rule indicated by Justice Wayne
in the case of r ngg vs Jrennsylvania
16 Peters' Reports, 650, "That Iegisla
tion may be confined to that end and
made effectual without making such a
remedy applicable for the rendition of
fugitive slaves," ft may, perhap?, he
granted that, in the practical operation
of the act, those who are fugitive slaves
may be sometimes brought before the
courts, but that is the incidental effect
and not the" intention of the law, T it
may be construed in accordance with
its title, our State constitution and the
decisions of the Supreme Court of the
United States applicable to the subject
The case of Prigg vs. Pennsylvania,
decided by the Supreme Court of the
United States in January . 1842, has
been often cited to show the unconsti
tutionality of these three sections of
our law of 1855. Inasmuch as the
volume containing it is not ordinarily
accessible, it may be well to give a brief
history of the case, of the question be
fore the court, and of the decision
made, with a glance at the opinions ex
pressed, which were in no sense im
portant to the, judgment rendered.
Edward Prigg was indicted in York
county, Pennsylvania, " for leaving,
with force and violence, taken and
carried away from that county, to the
State of Maryland, a certain negro
woman, named Margaret Morgan, with
a design and intention of selling and
disposing of and keeping her as a slave
or servant for life, contrary to a statute
of Pennsylvania passed on the 26th of
March, 1826, arid convicted on a spec
ial verdict by the Court of Oyer and
Terminer. On a writ of error to the
Supreme Court of Pennsylvania, the
judgment was affirmed, and the case
was then brought on a second writ of
error to the. supreme uourt 01 tne
United States. The Pennsylvania act
of 1826, entitled " An act to give effect
to the provisions of the constitution of
the United States relative to fugitives
from labor, for the protection f free
people of color, and to prevent kidnap
ping," is set forth in the special verdict,
and provides penalties for any person
taking and carrying away from any
part of the State, to another State, any
negro or mulatto, with the intent that
such negro or mulatto shall be sold as
a slave or servant for life, and also a
mode for the rendition of fugitive slaves
somewhat similar to the Federal law of
1793, and well calculated to be effective
for that purpose. The. special verdict
also finds that Margaret Morgan was
the slave for life of Margaret Ashmore,
who resided in the State of Maryland,
and that the defendant Prigg was duly
appointed the agent and attorney of
the owner of the slave, and in that ca
pacity took the negro woman, without
any process of law authorizing him so
to do, from the county of York to the
State of Maryland, and delivered her
to her mistress. The law of" Pennsyl
vania evidently contemplated that all
persons should be subject to the penal
ties for kidnapping who did not at first
procure an order tor the return of the
fugitive in accordance with the law for
that purpose.
Upon this state of facts the court
reversed the judgment of guilty ex
pressly upon the ground that, " In vir
tue of the constitution, the owner of
the slave is clothed with the authority
by himself or agent, in every State of
the Union, to seize ana recapture tns
slave wherever he can do it without
breach of the peace or illegal violence."
It was only necessary to the decision
made that the Pennsylvania statute
should be declared void in so far as it
provided for the punishment of those
who, as owners or agents, took and
carried away slaves from that Common
wealth to another, without the warrant
of a proper magistrate. In so far as
the Court went in deciding that the
clause of the constitution relating to
the rendition of persons held to service
or labor gave to the masters of escap
ing slaves the right of recapture in all
the States, and thus might u properly
be said to execute itself," the decision
is evidence of law, and is to be received
as such in all courts and places, equally
with other authoritative rulings of the
highest judicial tribunals. Uut, in so
far as , the court assumed to deliver
opinions unnecessary to determine the
question. of the guilt or innocence of
Edward 1 nsrg, the conclusions 01 the
court are of no binding force upon that
or other courts. Yet, inasmuch as the
States of Maryland and Pennsylvania
had sneciallv authorized their ablest
counsel to appear at the bar of the
court, and inasmuch as other questions
were, apparently bv consent, argued
before the Judges, it is eonceded that
the opinions placed on record have
more than usual weight, and are euti-
tled to be respectfully considered. 1 he
obiter dicta of this case are no more to
be regarded than those of many others,
aptly characterized,: in some instances,
as " the idle gabble of a judge.
Incidently a majority of the Judges
declared that the power to legislate for
the rendition of fugitive slaves belongs
exclusively to Congress, and hence that
all State laws enacted for that purpose
were absolutely void and of no effect
From this opinion three of the Judges
dissented, and the very able opinions
of Chief Justice Taney and Justice
Thompson are sufficient to raise some
doubt as to the ultimate decision of the
question. It was also declared by
majority of the Judges in substance,
that the fugitive slave law of 1793 was
only constitutional in so far as it author
ized proceedings before a Circuit ; or
District Judge of the United States,
and that the magistrates of counties,
eities and townships had no authority
to carry it into effect, although required
to do so by the terras of the old statute.
In accordance with these opinions, the
non-slaveholdin? States generally re
pealed their laws for the rendition of
fugitive slaves, and suel as had not
previously don eo withdrew, by repeal
ing their laws the consent which had
been supposed previously to give valid
ity to the delegation of power to local
magistrate by the act of 1793. The
event proving somewhat disastrous to
the " peculiar institution," and led to
the enactment of the supplementary
fugitive slave, law of 1850, by which it
was attempted to give to Commission
ers the power previously and still pos
sessed by the Federal Judges, and to
deny the writ of habeas corpus in cer
tain cases where a fugitive had been
arrested. . -
Although a majority of the court
pretty emphatically say that the fugi
tive slave clause of the constitution
" manifestly contemplates the existence
of a positive unqualified ; right on the
part of the owner, of the slave which
no State law or regulation can in any
way qualify, regulate, control or re
strain," it is to be remarked that the
general police power of the State is
conceded, and that they " possess full
jurisdiction to arrest and restrain run-
awry slaves and . remove them from
their borders, and otherwise secure
themselves against their depredations
and evil examples," and that the States
may punish them for crime like other
subjects : and, although it appears evi
dent that such measures might some
times facilitate and somewhat delay or
wholly prevent the return of a fugitive.
the court says, " The rights of the own
ers :. of fugitive slaves are in no just
sense interfered with or regulated by
such a course." The court distinctly
enough declares that any law designed
to regulate or interfere with the rendi
tion of fugitive slaves would be uncon
stitutional, but would allow the exer
cise of proper State authority to pro
tect its inhabitants, although the inci
dental but undesigned effects might
be to hinder or delay the owner of this
kind of property. " It is also to be re
marked that in none of the lengthy
opinions is there any intimation that
the writ of habeas corpus shall be de
nied to the fngitive, or that Congress
has any power to deny it to him.
The constitution of the United States
sec. 9, art. 1) recognizes a subsisting
right, -in these words:
" The privilege of the writ of habeas
corpus shall not. be suspended, unless
when in. case of rebellion or invasion
the public sefety may require it." j
lhe language can hardly be mis
understood, and certainly will not allow
the free men of Michigan to be denied
this privilege, held in so great estima
tion from the day when Magna Charta
was wrested from King John. It is
believed by a majority of the commit
teo that the fugitive slave law of 1850
is unconstitutional and void, in so far
as it attempts to deny the writ of habeas
corpus.
Another clause of the Federal con
stitution (sec. 1, art. 3), seems to be
equally capable of misconstruction :
" lhe judicial power of the United
Stales shall be vested in one Supreme
Court, and in such inferior courts as
the Congress may from time to lime
ordain and establish. The judges, both
of the Supreme and inferior courts,
shall hold their offices during good be
havior; and shall, at stated times, re
ceive for their services a compensation
which shall not be diminished during
their continuance in office."
The majority of the committee be
lieve that, however inhuman and sum
mary the proceedings may be made;
however much ordinary rules of evi
dence may be overturned in the mode
of trial; still that the act by which the
united btatcs Commissioner determ
ines that the fugitive slave law be
given up to a claimant is and must be
in its character judicial, and hence, to
be lawful, must be exercised eilhcr by
the Supreme Court or by inferior courts
established by. Congress. "Any such
courts are to be presided over by iudges
holding office during good behavior,
and receiving salaries not to be dimin-
shed during their continuance in office.
The adjudication of the Commission
er is pretty certainly not the judgment
of the Circuit or District Court, for
these are courts of record, having their
own judges; nor can the act of 1850
be held to constitute new courts to be
holden by the Commissioners or to
make them judges, for neither in their
modes of appointment, in the tenures
of their offices, or in the compensation
they receive, do they correspond to the
constitutional requirements of judges
vi interior couns. 11 me majority 01
the committee are right in the conclu
bion to which they have arrived, the
attempted delegation of power by Con
gress to Commissioners is utterly void,
and the District Judge. is the only offi
cer, resident m this State, authorized
to issue valid process for the seizure,
or adjucato the return, ; of a fugitive
slave. Practically, the slave-owner is
thus left almost entirely to depend upon
his right to seize and recapture, af
firmed by the court in the case of Prigg
vs. Pennsylvania. The temptation is
much greater than if regular tribunals
were established -at all the principal
towns to seize either directly or
through the illegal instrumentality of
Commissioners and carry into slavery
those who are really free.
The act of 1855 was passed a few
months after lhe repeal of the Missouri
compromise by a majority then first
coming to political power; it was
evidently drafted by some one accus
tomed to the work which he undertook,
but at the same time it bears evidence,
in the opinion of the undersigned, of a
desire to keep strictly within the re
quirements of the Federal constitution,
as expounded by the Federal courts.
It does not provide, as it might law
fully have . done, a long and difficult
mode of trial to protect the liberties of
its inhabitants, but, on the contrary,
adopts the simplest and most summary
process known to the common law to
have their rights adjucated. It does
not strip this writ of the difficulties at
tending its procurement in ordinary
cases, but leaves statutes operative in
all other . cases of illegal detention of
individuals to operate in this. A large
part of chapter 134 of the Revised
Statutes of 1846 (Comp.'Laws, pp. 1,
371 to 1,389) . relates to the writ of
habeas corpus.. It is to be granted on
petition, and that the petition must
state in substance : . .
That the person for whom the writ is
sought is illegally imprisoned . or re
strained by some other person.
2. That such person is not detained
by virtue of any : process, judgment,
decree, or execution of the courts of
the United States or of this State.
3. The cause of the confinement or
restraint according to the . best knowl
edge or belief of the petitioner.
4. If the confinement be by virtue
of any warrant, order, or process, a
copy thereof must be annexed, unlsss
a copy was refused, or a demand could
not be made.
5. If the imprisonment be alleged to
be illegal, it must be shown in what the
illegality consists.
6. It must specify the nghtdemanded.
7. It must be verified by the oath of
the petitioner.
These various requirements can ordi
narily be easily complied with in behalf
of a person entitled to freedom, but
not so readily in behalf of one who is
legally detained in the custody of an
other. - A petitioner whose main alle
gation is false is not permitted merely
to swear to a legal conclusion; but must
run such a gauntlet of specifications as
is likely; to involve him to perjury.
Under this wriu, the judge cannot in
quire into the justice or illegality of
any prooess issued by any court of the
the United States or any judge thereof,
or as to the justice or legality of any
legal process, civil or' criminal, upon
which any person is convicted or in ex
ecution, i. et it was competent for the
Legislature, in its discretion, to have
lessened the requirements preliminary
to the issue of. this writ, and the power
to grant it and to make adjucations
upon its return might have been con
ferred upon every Justice of the Peace
in the State, instead of remaining lim
ited to a few Judges and Circuit Court
Commissioners. The practical result
has been thut, while for nearly six years
no claimant of fugitive slaves has been
at all delayed or hindered by this act,
or on the other hand no free person
has been kidnapped as a slave within
the Stale of Michigan, although this
is not a very unfrequent occurrence in
some of the States which have no such
statutes. Does it not, as we examine
it, become abundantly evident that this
statute was passed for the purpose in
dicated by its title, and not for the pur
pose of regulating the rendition of fu
gitive slaves? Can it, " in any just
sense," be properly said to interfere
with, hinder, or delay the right of the
slaveholder?
It is provided in section 3, that either
party may demand and have a trial by
jury of the question of fact arising in
the case, but this circumstance does
not change the summary character of
the proceeding. If the person to whom
the writ is addressed can show that he
holds his prisoner upon any valid pro
cess or order, no question of the fact
will arise in the case, but the person
detained will be remanded upon deter
mination ' of the question of law. If
questions of fact are contained in the
issue formed by the petition, the return
to the writ, and the details under oath
whicli may be made by waywf reply,
either party may demand a jury, and,
inasmuch as the proceeding 4s a sum
mary one, the jury provided for will
have to be summoned from among the
by-standers or citizens who are legal
jurors, and on the trial none but ques
tions of tact are left to their determin
ation. , It is to be noted that while in
all trials, and in all civil cases deter
mined before Justices of the Peace,
the jury may judge of and decide all
questions of law, as well as of fact, in
volved in their verdict, there is here no
such extension of the power of a jury,
All questions of law are. to be 'deter-
mined'by a responsible public officer,
required to possess legal qualifications.
and trnsted by the people to administer
the law without fear or favor.
; An appeal is also authorized by the
person detained to the Circuit Court of
the county in case he shall be remand
ed by tbe Judge or Commissioner, at
a hearing in vacation, upon his giving
satisfactory bail. It has been asked
why an appeal has not been allowed to
the claimant ; The opinions announced
in the case of Prigg vs. Pennsylvania
perhaps give a sufficient answer. . The
prosecution of such an appear by the
owner of a slave, in order to procure
his rendition as a fugitive, would be for
the same purpose as he would have if
he proceeded under the acts of Con
gress, and the court has declared such
proceedings under State laws to be
void. The character and purpose of
the proceedings will have been wholly
changed from what this act contem
plates if an appeal by the master of a
slave be allowed. He will not be
loser, however, by this denial of an ap
peal for the tribunals opened to him by
the fugitive slave laws cannot be closed
against him by state- legislation, lhe
appeal allowed to the defendant is more
fully to assure his liberty if free, and
can in " no just sense" be said to bin
der or delay the owner of a slave, in
asmuch as he may still, pending such
appeal, resort at will to the ordinary
means of obtaining the rendition of
such property, .fit is, moreover, tem
porarily secure against the escape of
his chattel by the bail given, and, if
he succeeds at the hearing, the State
pays the costs. In tbe view of the
matter taken by the majority of the
committee, the only question of consti
tutional authority : arising npon this
statute is as to the legal right of a State
court or judge to issue or allow the writ
of habeas corpus, the trial of questions
of fact by a jury and the appeal author
ized beinz only incidents, . careful! v
guarded, of such alleged legal right
It is an extraordinary featare of our
jurisprudence that while for the trial of
a case . involving but six cents, a jury
and an appeal are allowed, yet that no
provision has been made in case involv
ing the liberty of a citizen, or the pos
session of a child, for either, except by
this law of 1855. An independent
State must surely have the power so to
provide in any or all cases, and that it
has been , done by this law can consti
tute no legal objection to it". It is. be
lieved that, instead of the supposed
larking intent to convert the hearing
on the writ into a proceeding to regu
late the rendition of persons escaped
from service or labor being found in
this law, we can only, in fact and in
law, hnu a summary proceeding, strict
ly limited to the object declared in the
title of the act . !
The Pennsylvania statute of 1826,
before considered, and the New York
statute of 1830, which provided tor the
arrest of fugitive slaves in a manner in
some "respects diffierent from the law
of Congress, and for suit similar to a
replevin suit by the negro for his free
dom, suspending during its pendency
all. proceedings for his recapture or re
moval, even after a finding that he was
a slave, and the granting of a certificate
tor his rendition under the act of Con
gress of 1793, have been declared un
constitutional and void. ?They ! were
so declared before 1855, and our prede
cessors appear to have taken' care to
avoid even a seeming conflict with the
judicial and extra-judicial opinions de
clared in making these decisions. : . Our
law, instead of being in conflict with
these ' decisions, as has been often as
serted, appears to be in entire conformi
ty to them. It ought, if lor no ther
reason, to the opinion of a majority of
the committee, to remain upon the stat
ute books as a monument of the wise
moderation of the Legislature of 1855.
The clause of the Federal Constitu
tion affirming the right of the writ of I
habeas corpus has been already cited.
and the . construction given to this
clause by the statute in question ap
pears to be not very different from that
given in the year 1858 by th6 Supreme
Court 01 the United States, m the case
of Ableman vs. Booth, reported in 21
Howard s Keports, p. 505. In decid
ing that case the court say, among otb
er things :
We do not question the authority
of a State court or judge who is au
thorized by the laws of the State to
issue the writ of habeas corpus, to issue
it in any case where the party is im
prisoned within the territorial limits,
provided it does not appear when the
application is made, that the person
imprisoned is in custody under the au
thority of the . United Slates. -The
court or judge has a right to inquire,
in this mode of proceeding, for what
cause and by what authority the pris
oner is confined within the territorial
limits of the State Sovereignty. And
it is the duty of the Marshal, or other
person having the custody of the pris
oner to make -known to the judge or
court, by a proper return, the authori
ty by which he holds him in custody.
This right to inquire by process of
Jtabeas corpus, and the duty of officers
to make a return, grow necessarily out
of the complex character of our gov
eminent, and the existence of two dis
tinct and separate sovereignties within
the same territorial space, each of them
restricted in its power, and each, within
its sphere of action prescribed by the
constitution of the United States, in
dependent of the other." - .
It has been already shown that by
necessary construction of the act of
1855, with the law regulating the, writ
of habeas corpus, tbe writ allowed by
the former would be authotized in any
case where it should appear that
the prisoner was held on valid pro
cess; and conceding, as the majority
of the committee do, that under the
decision in Prigg vs. Pennsylvania, the
owner of a fugitive slave has a right to
recapture him without process in a free
State, it follows that, in case it appears
from the petition for the writ that the
prisoner is claimed as a fugitive slave,
it must also appear by a statement on
oath that he is not a fugitive slave, or
else that the claimant has no right to
hold him, before the writ can issue.
The necessary construction is, that all
free persons not legally arrested, and
claimed as fugitive slaves, shall be enti
tled to the benefits of the writ' ,
But it is urged that the sections pro
posed to be repealed may beTunder-
stood in a broad 6ense, bringing them
in confliot with the adjucations of the
courts and the constitutional enact
ments of the general government It
is not -believed that they will bear such
a construction, for reasons already
shown ; but, admitting, for the sake Jf
argument, that they will, what is the
necessary legal enect? It is surely
this : that they must be construed with
reference to the superior; law, and bv
held valid in so far as they do not eon:
flict If any given statute forbids, by
the general language, an hundred dif
ferent things, and it be discovered that
one of the hundred is allowed; by the
superior law of the constitution, does
it follow that the forbidding, of the
ninety and nine js "unconstitutional?
A case determined by the Supreme
Court of Michigan will illustrate this
rule. - We have a statute in which it is
provided (sec. 2, 191 of complied laws),
in substance, that every chattel mort
gage not accompanied by delivery and
actual and continued possession of tbe
goods mortgaged shall be absolutely
void as against. creditors' and' subse
quent purchasers and mortgagees in
good faith, unless it, or a copy, shall
be filed in the office of the Township
or City Clerk." Congress has power
under . the constitution to regulate
commerce," and, exercising that powerj
in the year 1850, euacted that"No
mortgage of any vessel of the United
States ph all be valid against any persorf
other than the mortgagor, his heirs
and devisees, and persons having actu
al notice thereof, i unless such mortgage
is recorded in the office of Collector of
Castoms where snch vessels' is regis
tered or enrolled A case arose where
a schooner enrolled at the port of De
troit, mortgaged to secure a sum of
money, and the mortgage dulv record
ed in the custom-house, but not filed in
the City Clerk's office, was levied upon'
and seized in execution, at tbe in-'
stance of a judgment creditor, by the
United Mates Deputy Marshal, where-'
upon the mortgagor, after demand and
refusal, replevied the yessel in - the
Wayne Circuit ; Court, and, upon - re
served: questions submitted to ths Su
preme Court, it, was decided "that the.
act of Congress in reference to the rev
cording of mortgages npon enrolled
aud licensed vessels.' supersedes' to
muh f the State statute as refers to'
the recording of similar mortgages in
the lownship or City Clerk a office."
Robbinson vs. Rice & Moore, 3 Gibbs
R., 235. This decision was upon the;
ground that Congress had exclusive:
jurisdiction, over the matter regulated"
by the laws oi 1850, and hence that:
State LegMation could impose no ad-'
ditional requirement to the validity of
the chattel mortgage. Yet, in a gen
eral sense," our statute is a constitution J
al enactment; its repeal is- not agitated
and, by reason of the application to it
of the rules a legal construction, there
ix no necessity tor amendment. It is
already as though it read : Every mort
gage of ' goods and chattels, except.
mortgages of enrolled or licensed ves
sels of the united States shall be abso-i
lutelv void," &c. So of the statute
now in question. It wan, the 'dav it
was approved, by necessary legal con--
ftruetion, as though it read: All per
sons arrested and claimed as fugitive
laves, in iciose behalf can and shall
be made the petition specifird in section
11 of clmpter 134 of the llevised Stat-:
utes of 1846, shall be entitled to all the
benefit h of the writ ol habeas corpus
tc. -Even were it established (as it is
not) that-at some point this act comes
in direct conflict with the superior law.
of Congres, yet it would not thereby
be determined to be uncon titulional
in a general sense, so long as there
were cases to which it might belegally
applied. - In this view, the simple, con;
sideration that there are several thou
sand JVee colored people within the
State entitled to protection from our
laws, and each of them liable to be il
legally seized and carried into hopeless
slavery, seems sufficient to justify at
once the constitutionality and the pio
priety of this enactment
The policy of this law needs no la
bored defense. .The consideration' just'
stated, the alarm whieh would seizo'
upon the negro population were the
law now repealed, the scandal and
shame; which . is to be brought upon'
Michigan if, . under the influence of
threat, her representatives abandon
what is demonstrably her right, are suf
ficient, in the opinion of & majority of
the committee, to. justify their recom
mendation that the bill do not pass. V
All of which ia respectfully nubmitted.
. EUGENE PRIXGLE.
W. T. HOWELL. "'.
; ; GILBERT E.I'BATT.:
Uhion Conundrums. Why is this
Union like the Great JZastem steam
ship ? Because it's a big thing," but
poorly officered. . .
Why is the new Secretary, of the
Treasury very popular, among the;
masses ? Because Dix he is ("Dixie"
is.) '
Why is this. Union like a piece of
Western land covered with beech tim-,
ber? Because it has lots of treas-ou
(treason), but no good old Hickory." '
Why is this ; Republic like a . child
learning to walk? . Because yoti must
stand by it, or it will fall..
Why are the people of this Confed
eracy like a married couple being di
vorced ? Because their untied states
are being dissolved.
WThy is the Unin like a crab-apple ?
Because to be worth anything, it must
be preserved ? . ; " , -
C3f A country girl who had lived in
a small farin-house' where bells were
unknown, went to live as a parlor
maid in a gentleman's family. The
bell was rung, whicli it was her duty
to answer," and as she did not rise to
go, a fellow said, Why Mary, don't
you answer the bell; don't you. know
missus wants you ? 'No;' replied the
girl, 'if her wants me why don't her
holler r
'.. A tiiend of onrs says' that it i
his will to hp ak the plain truth, and
nothing else about nu n and things. Jfc.
is our will too, and what is better, our
wont. -
'" 82? A' saucer., lull of chloride of
lime, nuiisieued with a few drops of
vinegar and water, . will purity the
atmosphere of "u nickroom in a levy,
minutes.
V
1