would deserve consideration, whether here they could advance beyond their delegated power. In this country it is not the Legislature who are supreme, but the people; and "there is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." (3 Ham. Wks. 230; 1 Bl. 315.) The hardship in this case, however, is, at the most, only a pecuniary one of a mere individual, and, like many other sufferings under the best system, and the best administration of laws, may be remediless. Could perfect justice be always obtained, our institutions would cease to be human. Those evils, therefore, that have already happened, and those rights that have already been lost, and which the existing laws cannot reach, are irretrievable. In such cases, it must be as unwarrantable for the Legislature, as for the executive or judicial power, to interfere in such a manner as to impair interests already vested in particular members of society.

The long usage of our Legislatures to grant new trials has also been deemed an argument in favor of the act under consideration. But that usage commenced under colonial institutions, where legislative powers were neither understood nor limited, as under our present constitution. Since the adoption of that, the usage has been resisted by sound civilians, and often declared void by courts of law. Though no opinions have been published, and though the decisions have been contradictory, yet the following ones appear, by the records, to have adjudged such acts void. (Gilman, v. M'Clary, Rock. Sep. 1791; Chickering v. Clark, Hills; Butterfield v. Morgan, ch. May, 1797; Jenness and a. Ex. v. Seavey, Rock. Feb. 1799.) Nor could it be pretended, on any sound principles, that the usage to pass them, if uninterrupted for the last twenty-seven years, would amount to a justification, provided both the letter and spirit of the written charter of our liberties forbid them. That charter is the supreme law of the land to us all; and we know that the sacred regard to the rights of the people which our legislative department have ever evinced will induce them, as readily as ourselves, to conform to the provisions of that supreme law, whenever it is not misapprehended.

But, in the passage of the act granting a new trial to the plaintiff, we are constrained to think that the constitution was misapprehended. The nature and effect of the act was judicial. It was also retrospective. The Legislature cannot pass such an act; and our judgment, therefore, is, that the proceedings in this cause be quashed, and the parties go without day.

DECISION ON THE APPLICATION FOR A WRIT OF HABEAS CORPUS ON BEHALF OF THOMAS SIMS, THE

FUGITIVE SLAVE.*

AFTER adjourning the hearing in the petition for a habeas corpus in Sims' case from chambers at the Tremont House to the courthouse, Judge Woodbury listened further to Messrs. Dana and Sumner, his counsel, till almost nine o'clock, P. M.

He then remarked, that two grounds seemed to be relied on: one was the badness of the warrant which had been issued against Sims for an assault on Butman when serving another process; and the other was the illegal delay by the marshal, in not having Sims earlier examined by the commissioner on that warrant.

He agreed with the other judges in this city, that where all the facts and documents were before them necessary to a correct decision on the discharge of the prisoner, they might be examined, and the writ not issued, if nothing could result from it but delay and expense, or embarrassment to other proceedings.

Yet, if some facts were wanting, -as here, for example, - what other process had been served by the marshal, on which, also, with this warrant, he held Sims, and whether it was still in the course of being executed, so as to excuse him for not carrying Sims before a commissioner on this, it furnished a good reason to issue the habeas corpus at once, in order that the marshal might return these facts. He could now decide on the validity of the warrant on its face, the first point, as a copy of it was now before him; but he could not decide on the second point, without further and official evidence what other process was in the hands of the marshal against the prisoner, and how it operated, if at all, on the delay.

Where real doubt existed whether the marshal ought not to be required to return more facts, he felt bound to incline in favor of liberty.

The writ must issue.

In about an hour, the prisoner was brought into the court-room, and the return made on the writ, which has before been described.

B. R. Curtis, counsel for the marshal, after reading the return, observed that the marshal would now leave the case with the court, he having no interest in the final decision, except that it should be legal. He would merely add, that, by the Massachusetts statute, those who might be interested in the result were to be notified.

Mr. Dana wished this might be done, and the case delayed; but Woodbury, justice, remarked that he was acting. under the acts of Congress, and not the statute of Massachusetts, and should not delay the hearing for this, unless, in the further progress of it, something should appear rendering it fit and reasonable.

He further said, that the case was taken up on Fast-day, a sort of New England Sabbath, to oblige or accommodate the prisoner and his counsel, who considered it so urgent; and was examined thus late, in order to dispose of it that night, and without interfering unnecessarily with other proceedings.

The counsel, however, moved for delay till Saturday, insisting that it was a mistake to suppose they had intended to close the business that night; and the judge consented to allow further time, if anything new was disclosed in the return, or any surprise caused by its con

tents.

Mr. Sumner said nothing of this kind could be specified; but still further time was earnestly asked, to examine the return, and to call in witnesses to certain facts deemed material.

The judge said he would grant delay, though he feared at much inconvenience to the public business in the Circuit Court, and contrary to what he supposed was the arrangement when coming there; yet, it was right, if more time was really wanted by the prisoner and his counsel for preparation, to indulge them. If anything more, however, can be done before the postponement, it had better be suggested.

Mr. Dana then moved that the marshal be required to state more fully and specifically his reasons for delay in having the prisoner examined under the warrant for assault on the officer.

Judge Woodbury observed, that if the marshal chose to rely on his return as it was, without moving, on his own behalf, for any leave to amend, he should not interfere, unless it appeared, on further examination, that sufficient was not stated to enable him to dispose of the case understandingly.

The further hearing was postponed till three o'clock, P. M., the next day. When that time arrived,

Mr. Sewall, as counsel for Sims, moved the court to appoint a person to serve a writ de homine replegiando, issuing against the marshal for Sims, and urged it as requiring immediate attention.

Judge Woodbury advised delay till the writ of habeas corpus was disposed of.

Mr. Thomas then objected to Mr. Sewall acting in this new case as counsel for the prisoner. The commissioner having decided, that forenoon, that Sims was a slave, and having given a certificate and order to send him to Georgia, whence he escaped, he was now under the control and advice of his master and agent; for whom Thomas, and not Sewall, was counsel.

The marshal then had read an additional return, setting out this certificate and decision of the commissioner that day.

Judge Woodbury said that these papers must decide the point that Mr. Thomas now had the better right to appear in behalf of the master and Sims, unless Mr. Sewall objected to the constitutionality of the laws under which the commissioner had acted. If he did, an opportunity would be given to be heard on that point, and it would then be

decided.

Mr. Sewall did not wish to go into that argument now, on this motion; and the judge then said, the laws must be presumed constitutional till the contrary was shown or adjudged; and consequently Mr. Thomas had now a right to act on this motion as to the writ de homine, rather than Mr. Sewall. But let all take notice, that it did not follow, because Sims was a slave and had a master, that he possessed no rights, or that he might not have a right to proper food, clothing and shelter; to have a wife and children, and religious instruction, and be protected from improper abuse of them or himself, whether by his master or others. Slaves have rights, on many subjects, in the greatest slave States, and are often allowed to try them by writs and courts. And while here, especially, as well as there, it would be scrutinized closely, that no oppression or mal-treatment was practised on the prisoner; and if he really had good grounds for such a writ, no doubt it would and could be issued and served.

But it does not answer to say, as a reason for it, as counsel have urged, that no slavery exists or can exist in Massachusetts. That is true only under her present State laws. For, under the United States laws and constitution, slavery constitutes a part of the representation in the House of Representatives, and the number of electors of President, and the foundation for direct taxation; and when slaves escape to such States as Massachusetts from other States, still allowing the institution, as these do, they are still slaves, both by the constitution and the acts of Congress. This was one of the compromises for the Union.

Mr. Sewall rose, and was understood to say that he referred to Massachusetts alone.

Alone! Thank God, Massachusetts yet forms a part of the Union! [Great applause, which was checked by the court.] May she long enjoy its benefits, and long help to enforce its mutual and fraternal obligations. We live under two governments; and owe allegiance to both, as well as derive incalculable blessings from both.

And so far as regards his official duties, connected with one of these, he should uphold it, or perish in the attempt. [Applause.]

Mr. Sumner then moved that an attachment issue against the marshal, for not returning more specifically the date and cause of the arrest and detention of Sims.

The judge observed he supposed this motion was made to ascertain his views as to what must be the construction of the return, concerning these as it now stands, before arguing the question of the discharge. He was willing to state, that on the return, saying he received the warrant of such a date, and served it, he must be presumed to have received and served it on the day of its date. He should hold the marshal to that; and if he did not mean to be so understood, he might ask leave to amend. This would give also to the prisoner the benefit of the longest time of detention, in order to inculpate the marshal most as to the cause of detention, which is the other ground of the motion for an attachment. In the next place, on this return, no cause can be regarded but that appearing now in the existence of a prior process against Sims, which had been under hearing from time to time by adjournments, till since the service of the writ of habeas corpus.

If that, under the circumstances, did not justify the delay, he would stand in fault; but to what extent, and with what consequence, was to be settled hereafter.

The motion was disallowed.

Mr. Sumner, at the close of his argument for the discharge of Sims, proposed to offer some witnesses to prove fraud connected with the criminal process in question, and the use of it in connection with the other process against Sims as a fugitive.

The district attorney, Mr. Lunt, being present, stated that he caused the criminal proceedings to be instituted, and had regulated them thus far, and was responsible for the manner of conducting them.

B. R. Curtis, Esq., in behalf of the marshal, objected to any evidence against his return.

Judge Woodbury observed, that if the counsel for the prisoner could show that there was no foundation, either in fact or law, for the complaint against Sims, but that it had been got up falsely and fraudulently by the marshal, or by others with his consent or connivance, he was inclined to receive the evidence.

It is true that the writ of habeas corpus is a proceeding, in some respects, peculiar in character. It is not like an action between parties, or an indictment on which issues can be made and tried by a jury. He was now hearing it, as if at his chambers, with no jury present, and with none of the paraphernalia of a court, except the officers who had charge of the prisoner.

It was a writ, too, which, though justly sacred with our fathers, and dear to our fathers' fathers, near two centuries ago, was to be acted on by the judge who issued it, and under certain rules which had been, from time to time, wisely established to regulate his discretion. He desired the counsel to point him to a case, during that whole period, where an inquiry like this had been gone into with witnesses, on the hearing of the habeas corpus.

The counsel said he could refer to no such case.