Associate Justice Smith had rebuked Booth and his lawyer for trying to force him to rule on the consitutional issue and then held that technical defects in the warrant entitled Booth to discharge. At this point, there was no need for Justice Smith to rule on the constitutionality of the Fugitive Slave Act of 1850.
But at this point, Justice Smith does something strange. Having escaped the need to resolve the constitutional issue, he does so anyway. I will not pause to review his reasoning for doing so, which is unpersuasive, except to the extent it implicates his understanding of the relationship between the federal and state governments.
In the course of explaining himself, Justice Smith turns back to the issue of his own jurisdiction. In effect, he suggests that he, as a state judge, rather than a federal judge, should decide the constitutional issue, because the sovereignty of the states is at issue and the federal government should not determine the extent of its own powers. I quote the following passage at some length because it is a truly remarkable summary of federalist theory given its source:
"The judicial department of the federal government is the creature by compact of the several states, as sovereignties, and their respective people. That department can exercise no power not delegated to it. All power not delegated and not prohibited to the states, the states have expressly reserved to themselves and the people. To admit that the federal judiciary is the sole and exlusive judge of its own powers, and the extent of the authority delegated, is virtually to admit that the same unlimted power may be exercised by every other department of the general government . . .. But I solemnly believe that the last hope of free representative and federative government rests with the states. Increase of influence and patronage on the part of the federal government naturally leads to consolidation, consolidation to despotism, and ultimate anarchy, dissolution and all its attendant evils.
"If the sovereignty of the states is destined to be swallowed up by the federal government; if consolidation is to supplant federation, and the general government to become the sole judge of its own powers . . ., as an humble officer of one of the states, bound to regard the just rights and powers both of the union and the states, I want my skirts to be clear, and that posterity may not lay the catastrophe to my charge. . .
"Without the states there can be no union; the abrogation of state sovereignty is not a dissolution of the union, but an absorbtion of its elements. He is the true man, the faithful officer, who is ready to guard every jot of power rightfully belonging to each, and to resist the slightest encroachment or assumption of power on the part of either."
But at this point, Justice Smith does something strange. Having escaped the need to resolve the constitutional issue, he does so anyway. I will not pause to review his reasoning for doing so, which is unpersuasive, except to the extent it implicates his understanding of the relationship between the federal and state governments.
In the course of explaining himself, Justice Smith turns back to the issue of his own jurisdiction. In effect, he suggests that he, as a state judge, rather than a federal judge, should decide the constitutional issue, because the sovereignty of the states is at issue and the federal government should not determine the extent of its own powers. I quote the following passage at some length because it is a truly remarkable summary of federalist theory given its source:
"The judicial department of the federal government is the creature by compact of the several states, as sovereignties, and their respective people. That department can exercise no power not delegated to it. All power not delegated and not prohibited to the states, the states have expressly reserved to themselves and the people. To admit that the federal judiciary is the sole and exlusive judge of its own powers, and the extent of the authority delegated, is virtually to admit that the same unlimted power may be exercised by every other department of the general government . . .. But I solemnly believe that the last hope of free representative and federative government rests with the states. Increase of influence and patronage on the part of the federal government naturally leads to consolidation, consolidation to despotism, and ultimate anarchy, dissolution and all its attendant evils.
"If the sovereignty of the states is destined to be swallowed up by the federal government; if consolidation is to supplant federation, and the general government to become the sole judge of its own powers . . ., as an humble officer of one of the states, bound to regard the just rights and powers both of the union and the states, I want my skirts to be clear, and that posterity may not lay the catastrophe to my charge. . .
"Without the states there can be no union; the abrogation of state sovereignty is not a dissolution of the union, but an absorbtion of its elements. He is the true man, the faithful officer, who is ready to guard every jot of power rightfully belonging to each, and to resist the slightest encroachment or assumption of power on the part of either."
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