Unconstitutionality of the Fugitive Act
ARGUMENT OF BYRON PAINE, ESQ.
OPINION OF HON. A. D. SMITH,
Associate Justice of the Supreme Court of the State of Wisconsin.
BEFORE JUSTICE SMITH.
In the matter of the Petition of Sherman M. Booth for a Writ of Habeas Corpus, and to be discharged from Imprisonment.
MONDAY, MAY 29—10 O'CLOCK A. M.
[The Relator, Sherman M. Booth, was complained of for violating the 7th section of the Fugitive Act of 1850, by aiding in the escape of Joshua Glover, from the custody of Case. C. Cotton, Deputy Marshal of the United States, on the 11th of March, 1854.
An examination was had before U. S. Court CommissionerSmith, who required the defendant to give bail in the sum of $2000 to appear at the next term of the U. S. District Court for trial. The bail was given, and the Relator was afterward surrendered and sued out this writ of Habeas Corpus to be released, chiefly on the ground of the unconstitutionality of the Act.
The writ was obeyed by the Marshal, and a return made, to which was attached the warrant of commitment. The Counsel for the Relator demurred to the return and the hearing was fixed for Monday, May 29th, at 10 A.M.
On that day the parties appeared, Charles K. Watkins and Byron Paine for the Relator, ,the U. S. District Attorney, J. R. Sharpstein, for the Marshal.
The District Attorney moved to quash the writ, on the ground that a "Justice" of the present Supreme Court of the State had no authority to issue it in vacation. The Habeas Corpus Act gives the power to any "Judge of the Supreme Court;" but the Act organizing the present Supreme Court styles them "Justices." He claimed that under this Act the Justices of the present Court had not all the powers of the Judges of the old Court, and that the writ could only be issued by the whole Court in term time.
Mr. Watkins replied briefly, claiming that the writ was a writ of Right, and that every Judge of a Court of Record had a right to issue it by the common law, independent of statutory provisions.
After some further discussion, the motion was overruled, and Byron Paine began his argument in support of the demurrer.]