History, 1838–1856, volume D-1 [1 August 1842–1 July 1843]

  • Source Note
  • Historical Introduction
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who had demanded him as a fugitive from justice, under the second section 4th. article of the Constitution of the , and the Act of Congress passed to carry into effect that article. The article is in these words, viz: “A person charged in any State with Treason, Felony, or other crime, who shall flee from justice and be found in another State, shall on demand of the Executive Authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the Crime.” The Act of Congress made to carry into effect this article, directs that the demand be made on the Executive of the State where the offender is found, and prescribes the proof to support the demand, viz Indictment or Affidavit. the Court deemed it respectful to inform the and Attorney Generals of the State of , of the action upon the habeas Corpus, on the day appointed for the hearing, the Attorney General for the State of , appeared and denied the jurisdiction of the Court to grant the Habeas Corpus. 1st. Because the warrant was not issued under colour or by authority of the , but by the State of . 2nd. Because no can issue in this case from either the Federal or State Courts to enquire into facts behind the writ. In support of the first point, a law of was read declaring that whenever the Executive of any other State shall demand of the of this , any person, as a fugitive from Justice and shall have complied with the requisition of the act of Congress in that case made and provided, it shall be the duty of the of this to issue his warrant to apprehend the said fugitive &c. It would seem that this Act does not purport to confer any additional power upon the of this , independent of the power conferred by the Constitution and laws of the but to make it the duty of the Executive to obey and carry into effect the Act of Congress. [HC 5:224]
The warrant on its face purports to be issued in pursuance of the Constitution and laws of the , as well as of the State of . To maintain the position that this warrant was not issued under color or by authority of the laws of the , It must be proved, that the could not confer the power on the of—— . Because if Congress could and did confer it, no act of could take it away, for the reason that the constitution and laws of the passed in pursuance of it, and treaties, are the supreme law of the land, and the Judges in every State shall be bound thereby, any thing in the constitution or Laws of any State to the Contrary—— notwithstanding. This is enough to dispose of that point. If the Legislature of as is probable, intended to make it the duty of the Governor to exercise the power granted by Congress, and no more, the Executive would acting by authority of the . It may be that the Legislature of appreciating the importance of the proper execution of those laws, and doubting whether the Governor could be punished for refusing to carry—— them into effect, deemed it prudent to impose it as a duty, the neglect of which would expose him to impeachment. If it intended more, the law is unconstitutional and void— 16 Peters 617 Prigg vs. . In supporting the second point the Attorney General seemed to urge that there was greater sanctity in a warrant issued by the—— Governor than by an inferior officer. The Court cannot assent to this distinction
This is a Government of laws, which prescribes a rule of action, as obligatory upon the Governor as upon the most obscure officer. The Character and purposes of the are greatly misunderstood by those who suppose that it does not review the acts of an Executive Functionary; all who are familiar with English history—— must know that it was extorted from an arbitary monarch and that it was hailed as a second Magna Charta, and that it was to protect the subject from arbitrary imprisonment by the King and his minions, which brought into existence [p. 1438]
who had demanded him as a fugitive from justice, under the second section 4th. article of the Constitution of the , and the Act of Congress passed to carry into effect that article. The article is in these words, viz: “A person charged in any State with Treason, Felony, or other crime, who shall flee from justice and be found in another State, shall on demand of the Executive Authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the Crime.” The Act of Congress made to carry into effect this article, directs that the demand be made on the Executive of the State where the offender is found, and prescribes the proof to support the demand, viz Indictment or Affidavit. the Court deemed it respectful to inform the and Attorney Generals of the State of , of the action upon the habeas Corpus, on the day appointed for the hearing, the Attorney General for the State of , appeared and denied the jurisdiction of the Court to grant the Habeas Corpus. 1st. Because the warrant was not issued under colour or by authority of the , but by the State of . 2nd. Because no can issue in this case from either the Federal or State Courts to enquire into facts behind the writ. In support of the first point, a law of was read declaring that whenever the Executive of any other State shall demand of the of this , any person, as a fugitive from Justice and shall have complied with the requisition of the act of Congress in that case made and provided, it shall be the duty of the of this to issue his warrant to apprehend the said fugitive &c. It would seem that this Act does not purport to confer any additional power upon the of this , independent of the power conferred by the Constitution and laws of the but to make it the duty of the Executive to obey and carry into effect the Act of Congress. [HC 5:224]
The warrant on its face purports to be issued in pursuance of the Constitution and laws of the , as well as of the State of . To maintain the position that this warrant was not issued under color or by authority of the laws of the , It must be proved, that the could not confer the power on the of—— . Because if Congress could and did confer it, no act of could take it away, for the reason that the constitution and laws of the passed in pursuance of it, and treaties, are the supreme law of the land, and the Judges in every State shall be bound thereby, any thing in the constitution or Laws of any State to the Contrary—— notwithstanding. This is enough to dispose of that point. If the Legislature of as is probable, intended to make it the duty of the Governor to exercise the power granted by Congress, and no more, the Executive would acting by authority of the . It may be that the Legislature of appreciating the importance of the proper execution of those laws, and doubting whether the Governor could be punished for refusing to carry—— them into effect, deemed it prudent to impose it as a duty, the neglect of which would expose him to impeachment. If it intended more, the law is unconstitutional and void— 16 Peters 617 Prigg vs. . In supporting the second point the Attorney General seemed to urge that there was greater sanctity in a warrant issued by the—— Governor than by an inferior officer. The Court cannot assent to this distinction
This is a Government of laws, which prescribes a rule of action, as obligatory upon the Governor as upon the most obscure officer. The Character and purposes of the are greatly misunderstood by those who suppose that it does not review the acts of an Executive Functionary; all who are familiar with English history—— must know that it was extorted from an arbitary monarch and that it was hailed as a second Magna Charta, and that it was to protect the subject from arbitrary imprisonment by the King and his minions, which brought into existence [p. 1438]
Page 1438