1794-1357 Thorne, Charles G. (Charles Grecly) [no. 3 ان A READING UPON THE PERSONAL LIBERTY LAWS OF MASSACHUSETTS. From the Boston Daily Advertiser, Dec. 31, 1860, and Jan. 3, 1861. To the Editor of the Boston Daily Advertiser: NUMBER I-HABEAS CORPUS. My Dear Sir: In these days of heated discussion and The clause in the constitution of the United declamation about the so-called "Personal Liberty Laws," and the position and duty of the State concern-States, the foundation of all discussion of this subing them; and when popular influence is invoked upon ject, is in the following words, Art. V. § 2:— the Legislature to procure their repeal,-it is certainly desirable that we have accurate knowledge of them, that we may speak and act intelligently; and that, while such concessions shall be made as shall be reasonably required, there may be none involving the sacrifice "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 of any just muniment of personal freedom, nor any in delivered up on claim of the party to whom such It was not written in reference to the recent appeal "to the Citizens of Massachusetts," the greater portion having been completed before any knowledge of that document. Nor is it now offered as in reply, although some parts have been remodelled and a few additions made, in order to a full consideration of some subjects in the lights there unexpectedly presented. Still less is it proffered for the purpose of preventing any such repeal or modification of those enactments, as the true dignity of the State and a friendly spirit of conciliation towards other States may call for; but only for the purpose of assisting to a fair understanding of them;-it being believed that a dispassionate consideration will be more effectual for such repeal or modification than unqualified and unreasonable denunciation of them or of their authors. The obvious impossibility that any man could hope to be listened to in opposition to opinions announced by authority in names and influence so overwhelming as that appeal imports, any farther than the intrinsic ver And the Supreme Court of the United States, in the case Prigg v. Comm. of Penns., 16 Peters 539, at p. 614, decided that "under and in virtue of this clause the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave, wherever he can do it without any breach of the peace, or any illegal violence: that the clause may properly be said to execute itself, and to require no aid from legislation, State or national: and that Congress possesses exclusive power to provide by law, when and under what circumstances the possession of the owner, after it is obtained, shall be conclusive of his right, so as to preclude any further inquiry or examination into it by the local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled: and that it excluded all State legislation upon the subject: so that no one could modify it by its own legislation, or impede the execution of any law of Congress upon the subject of fugitive slaves: and that all statute regulations upon that subject in the States were null and void." The same doctrine has been repeatedly affirmed ity and reasonableness of his views may demand audi- by the Sup. Court of the U. S. Jones v. Van ence, must relieve me from the charge of presumption Zandt, 1847, 5 Howard, 229; Moore v. State of Illinois, 1852, 14 Howard 13, and was recognized by the supreme court of Massachusetts in Commonwealth v. Tracy, (1843,) 5 Met. 547. It must therefore be assumed that under the con- | sued by any Court, Judge or Magistrate, or person stitution of the United States, and notwithstanding whomsoever. And this act also expressly authorizes and independently of all legislation, State or na- the claimant at his election to seize the alleged fugitional, the owner of a fugitive slave has the right to tive without warrant, and to take him before a seize and hold him, and remove him from the State Court or Commissioner, a right which was exwherein the seizure is made, and to use all necessary pressly adjudged constitutional under the similar force for that purpose: provided, that he be not provision in the act of 1793 by the Supreme Court guilty of any breach of the public peace in so doing. of this State in Commonwealth v. Griffith (1823) But it is obvious that the only effect of this limita-2 Pick. 11, and again in Latimer's case, (1843,) tion, or rather qualification of his right, is to render cited in 5 Met. 545. him liable civilly or criminally for such breach of the peace, but would not defeat his right of possession, although thus obtained,—any more than the right of an owner to retain possession of any chattel belonging to him, would be defeated by the circumstance that he had used unduly violent means to obtain it. And this right of immediate manucaption by the owner, or his agent, it is well known, is constantly exercised in Ohio and other border States and in the slave States, as was stated by Mr. Douglas in his speech on the eleventh of this month in the Senate of the United States, in which he said that in nineteen out of twenty cases in Illinois, fugitive slaves were taken and carried back without any process whatever; and has recently been asserted in the seizure, and transportation from New York of a mulatto, who, if the printed reports are true, was a free man by the laws of that State, having been taken by his master into a free State and never having subsequently been in that in which he was held in slavery. Congress has undertaken to legislate upon the subject, and provide for the manner in which the master may seize his slave, and his protection in the possession of him while in transitu to his own State, by the act of 1850, chap. 60, known as the Fugitive Slave Act. And this act and the previous one of 1793 have been recognized as constitutional by the Supreme Court of the United States in the cases above cited, and in cases Ableman v. Booth and U. S. v. Booth, 21 Howard 506, and by the Supreme Court of this Commonwealth in Sims's case, 7 Cushing 285, and must therefore be so considered for the purposes of this discussion. The rights of the slave-owner to recapture the fugitive under the Constitution and the laws of the U. S., as now legally adjudged, are First. To arrest the fugitive by his own hand, or that of his agent, and to detain and transport him personally to his own State. Second. To arrest him in that manner, and take him before a court or commissioner, to procure a certificate of his right to transport him, excluding all interference by any other court or magistrate whatsoever. The purpose of such certificate being that "of precluding any further inquiry or examination into his right of possession by the local tribunals or otherwise while the slave in possession of the owner is in transitu to the State from which he fled"-as is stated in the decision in Prigg's case, above cited. And third-To have him arrested under a warrant issued by the court or commissioner, and to procure the certificate. And no State legislation conflicting with, or impeding these rights, can be accounted constitutional under the existing decisions of the courts. What then are the laws of this State upon this subject, which are complained of as in conflict with the Constitution of the United States and the provisions of the Fugitive Slave Act, as hindering or impairing, or intended to hinder or impair their operation. They are to be found, as I suppose, in the 19th, 20th, and 21st sections of chapter 144 of the Revised Code of 1860, under the title of Habeas Corpus; and in the sections 58 to 67 inclusive of the same chapter under the title of Personal Liberty. No constitutional objection can be made to the first and second sections of this chapter, which give the absolute right to the writ of habeas corpus in behalf of every person imprisoned or restrained of his liberty, excepting persons committed for treason or felony, &c., when the cause of commitment is stated in the warrant under which it was made; and persons convicted, or in execution upon legal process civil or criminal: and persons committed on mesne process in any civil action, on which they were liable to be imprisoned, unless where excessive bail is required. The provisions of this act, material to this inquiry, authorize the appointment of Commissioners by the Circuit Courts of the United States, with power to issue a warrant for the arrest of the fugitive slave on application of the owner or his agent, giving them concurrent jurisdiction in this behalf with judges of the U. S. Courts and other magistrates; and empowering them to appoint persons to execute such warrants; and further empowering the commissioner, when the slave shall be brought before him either by the master or his agent after seizure by him, or by virtue of a warrant issued by The right to the writ, on behalf of any person desuch commissioner, and upon proof made by affida-prived of his liberty, is of the common law and in vit of ownership, escape and identity, to grant a virtue of the national and State constitutions, and certificate to the claimant, authorizing him to take of which he cannot be deprived by any national and remove the captive to the State or territory or State legislation excepting in the cases specified whence he is alleged to have escaped, and which in those constitutions; and of which arrest as a fu certificate is to be conclusive against all process is- gitive slave is not one. Nor will it, as is supposed, be denied that | sirous not to serve out his time, but to go at large. the State courts have constitutional power to issue Could it be seriously maintained that on such an the writ for the purpose of summoning the marshal application the court would be compellable to grant or other officer of the United States holding any the writ? Yet this is not within either of the experson under arrest, or imprisonment, under any pressly excepted classes of cases, nor, as is believed, alleged process issued by a United States court: or need it be. detaining a person arrested as an alleged fugitive This interposition of State Courts, by the writ of slavę, under a warrant of any judge or commission- habeas corpus, to inquire into the legality of any er issued conformably to the provisions of the Fu-arrest or detention by officers of the United States, gitive Slave Act,-for the purpose of inquiring into acting under the alleged authority of the Constituthe legality of such arrest or imprisonment, as being tion and laws of the United States, is of familiar made under process duly issued by a court or mag- practice in the several States; and never has been, istrate of competent jurisdiction-and served by a it is believed, objected to in any court of the United duly authorized officer. Nor can there be, it is be- States or elsewhere as unwarranted or unconstitulieved, a question of the right to issue such a writ tional. Several cases have occurred in this Comwhere the seizure and detention are by the master in monwealth. Those of Comm. v. Harrison 11 Mass. person, in virtue of his alleged constitutional right, Rep. 63 and Comm. v. Cushing, same vol. 67 and without process of law, in order to inquire into the Comm. v. Downes 24 Pickering 227 being of minors legality of such arrest or detention, and the iden- enlisted in the army and navy of the United States; tity of the person arrested. and who were released from the service on the ground that the enlistment of minors was void by the laws of the United States. To deny these positions is obviously to destroy all legal protection of personal liberty when invaded under the forms of civil or criminal process purporting to be issued from courts of the United States, or by a commissioner, or executed by persons assuming to hold such process and to be officers authorized to serve it; or by a person asserting himself to be the master of an alleged fugitive. The writ of habeas corpus, when issued in either of these cases, can in no sense be truly said to impair, hinder or delay the exercise of any constitutional right, or the execution of any laws of the United States;-its only purpose and effect being to ascertain whether there be any such legal process and such legal proceedings under it as those laws require and were intended to provide. And that fact being ascertained in the affirmative, the prisoner is, of course, remanded, that the laws may be duly administered by the court or magistrate from which the process issued. That of Comm. v. Aves 18 Pick. Rep. 193, where the writ was directed to the sheriff of the county to bring the body of a minor held by the defendant as a slave: and Aves was summoned to appear and show cause of detention; and in which the child was released. This was the first instance of the writ's being directed to the sheriff, instead, of the person having custody of the party detained, being in conformity to the new provision to that effect in the revised statutes of 1836. But no question was raised of the constitutionality of such a mode of service: nor has there, as is believed, been any since. Comm. v. Taylor 3 Metc. 72 was another case of release of a minor claimed as a slave. In most of these cases there was seemingly a more direct interference or conflict with the Constitution and laws of the United States, than in the case of a person arrested as an alleged fugitive slave; for in them the persons brought before the court were claimed as servants of the government of the United States, enlisted under its laws and in the custody of its officers; while in the case of the alleged fugitive the right of a private citizen under the protection only of those laws is involved. But no one it is believed has ever questioned the constitutionality of these decisions. And it is difficult to perceive why if a State Court can issue a habeas corpus in those cases, and release the person if illegally restrained, it may not do so in the other, so far as any merely constitutional right is involved. If it be objected that the court is required by the statute to issue the writ as a matter of right in all cases excepting those specified; that this of restraint by an officer of the U. S. under legal process for a court of the U. S. is not one; and that therefore the court could not refuse, but must issue the writ, notwithstanding its appearing upon the application that the arrest was lawful.-It is obvious that this objection if well founded, would apply indiscriminately to all arrests on civil or criminal process as well as to those of alleged fugitive slaves. But it seems impossible to maintain that a law, whose only purpose is to provide relief against unlawful restraint, must be so Indeed this right has been recently fully recognized construed as to apply to cases where by the showing by the Sup. Court of the U. S. in the case Ableman of the party seeking its aid there is no unlawful | v. Booth above cited, where it was adjudged that a restraint. There must at least be some possibility Marshal of the United States, having a person in of unlawful restraint, appearing in the application, or else it cannot be reasonably maintained that the court is bound to issue the writ-any more than if no application had been made. Suppose an application by a soldier in the army of the U. S. stating his enlistment, service, &c., and that he is of full age, and is restrained of his liberty, though de arrest under legal process of the U. S. is bound to appear and answer to a writ of habeas corpus issued by a State Court, and to exhibit the authority under which the arrest was made, although not bound to produce the body. This is a necessary admission of the right of the State court to determine upon the validity of the process as issued by a court of competent jurisdiction, and served by an officer legally em- | or of the United States. But in all these cases, and owered to serve it. in many others of similar nature, the general direc By the 6th section of this statute of habeas cortions to attach or arrest, are held to be limited, as of pus, it is provided that in cases of imprisonment or course, by such previous arrest or attachment under restraint by a person not a sheriff, deputy sheriff, legal process; and no question is ever made that the coroner or jailer of this State, the writ shall be di- laws authorizing the issue of such precepts in genrected to the sheriff of the county,-requiring him to eral terms, are therefore unconstitutional and void as take and have the body of the person restrained be- repugnant to the Constitution of the United States, fore the Court, and to summon the party in whose or as tending to bring their officers in conflict with custody he is, to appear at the time appointed, to those of this State, and stir up civil war or dissenshow cause of the detention,-unless the person re- sion. strained be in the sheriff's own custody or that of any other sheriff, deputy sheriff, coroner or jailer of this State, in which case the writ is to be addressed to the party having such custody. The existence of coördinate jurisdictions of courts of different governments within the same territorial limits is peculiar to our country, arising from the coëxistence of the governments of the United States By the "laws now on her statute book" therefore and of the several States over the same persons. there is no one which "requires every judge of the Each is as absolute and independent in its own Supreme Court, the Superior, Probate, or Police sphere as if presiding over different regions distinCourt, and any justice of the peace, in some contin- guished by material boundaries, and neither can gencies, to issue a writ requiring the marshal of the trench upon or interfere with the legal authority or United States, having such custody [of an alleged legal processes of the other. Any general language, fugitive slave], to bring the fugitive before a State therefore, used in the enactments of either, which, tribunal to subject him to the control of such tribu-in its literal acceptation, might extend to warrant nal, and to relinquish his custody upon its order" any proceedings by the officers of either which would as is stated in the appeal "to the citizens of Massachusetts.” No such writ can be lawfully issued by any court or magistrate of this State,-or, if issued, could be of any obligation upon the marshal to make answer to it. occasion such conflict, but does not, by necessary construction, involve it, must of course be construed with that limitation, and as subject to that condition. It has been ruled by the Supreme Court of the United States, in the case above cited, that if a writ of habeas corpus be issued by a State court, addressed to the Marshal of the United States, for the bringing before it of the body of a person restrained by him under process of the United States, he is bound to appear and make return that he holds the prisoner under such process; but that he would not be bound to produce the body, as the custody is exclusively in him. And upon the appearance of the marshal and the proof that he holds the prisoner under process of the United States, the court must consider the writ satisfied, and stay further pro The sheriff of the county or his deputy is the only person to whom, in such case, the writ can be directed, or who can lawfully serve it. And his right and power to serve it must of course be limited by constitutional laws, and other preëxisting legal rights, as in all other cases where he is directed to arrest the person or attach the property of an individual. And it is believed to be perfectly clear, on universally admitted legal principles and repeated judicial decisions, that an officer, to whom a civil process is directed from any court, in terms how-ceedings. ever general or universal, can have no authority under it to seize or interfere with any person or property under arrest or attachment by virtue of legal process issued by another court of coördinate or paramount jurisdiction: and that no judicial tribunal would hold any officer accountable for omitting so to do, or construe the law giving the writ as intended to confer any such authority. Cases of this sort are numerous and familiar. The general laws, regulating the attachments of property upon mesne process or execution direct the officer serving the process or execution to take all the goods and estate of the defendant within his precinct, with no expressed exception of such as may be under previous attachment by another officer of the same ourt or under process of a United States court. So the precepts provided for the arrest of fugitive apprentices and persons accused of crime are in universal terms, commanding the officer to arrest and bring the accused before the court, with no exception of those held under arrest or in imprionment by authority of other courts of the States But if it should appear that the alleged process was not from a court having jurisdiction of the case, or not one which the marshal was legally empowered to execute; or that, though assuming to act as such marshal, he was not legally authorized to do so; the legal consequence seems necessary that he might be required to produce the body, or com pelled to suffer the consequences, as in any other case of an unjustifiable refusal to obey such a writ The writ of habeas corpus at common law, and by the statute of this State in 1784, was addressed to the party having in custody the person alleged to be restrained of his liberty, directing him to bring the person before the Court and show cause of the detention. It was altered by the Revised Statutes of 1836, Chap. 111, in being required to be addressed to the sheriff of the county or his deputy in all cases of imprisonment or restraint by any person not a sheriff, deputy sheriff, coroner or jailer of this State, nor a marshal, deputy marshal or other like officer of the courts of the United States and so continued until the year 1859, four |