perfect unison and with a common understand-| own salaried editor thundered it morning ing in these cases in every direction, and after morning, and the penitent Douglas print almost under the ears of the prisoners, that if echoed it every evening; till all the country they would only knuckle handsomely and round about, as well as every dweller in the "acknowledge the corn," they would get off town, was aware that MARSHAL MATTHEW almost as easily as the Wellington men; but if JOHNSON WOULD DO HIS DUTY! So the anxthey didn't, they should every one be pinned to the wall; for it “was high time that OBERLIN, the strong-hold and hotbed of Abolitionism and REPUBLICANISM was SUBDUED." If this had not come time after time direct from the authorities themselves, it would indeed be unpardonable to publish it.

THE SECOND APPLICATION FOR HABEAS CORPUS was made in behalf of the two who had been sentenced, to Judge SCOTT, ôf the Supreme Bench, on the 17th of May. As in duty bound, he immediately issued the writ, returnable before the Full Bench, and then telegraphed to his brethren who were just dispersed to their several circuits, requesting them to sit with him in Special Session. As the recent assaults made upon this great bulwark of Freedom have awakened much inquiry in regard to it, we are sure of gratifying the reader by presenting him the form of the writ. The State of Ohio:

To David L. Wightman, Sheriff of Cuyahoga
County:

We command you that the body of Charles Langston,-in your custody detained, as it is said, together with the day and cause of his caption and detention; by whatsoever name the said Charles Langston may be known or called, you safely have before the Judges of our Supreme Court, at their court room in the City of Columbus, on Wednesday, the 25th day of May, instant, at ten o'clock in the morning, to do and receive all and singular those things which the said Judges shall then and there consider of him, in this behalf; and have you then there this writ.

"

on

ious grew calm; half-cleaned weapons were
thrown aside, and nobody was surprised to
learn that the Marshal had "compromised ” by
threatening to serve a WRITTEN NOTICE
the Sheriff not to move the men out of jail;
and added that, if he did, let the reader be
calm and ready for the worst, — he, Marshal
Matthew Johnson, should positively let the
reader take breath and compose himself
should positively so he said do what?
why, he should POSITIVELY take the same train
to Columbus!

corpus.

The Supreme Court of the United States having decided that the State Courts have no power to discharge persons imprisoned under process of the United States Courts, for violation of the laws of Congress, and it being clearly your duty to return in answer to the writs, the cause of the detention of the prisoners, without producing their persons, I hereby protest against your removing or permitting to be removed from the Jail of Cuyahoga Co., the said Simeon Bushnell and Charles Langston until the expiration of the sentence for which they are respectively imprisoned.

Yours, respectfully,

M. JOHNSON,
U. S. Marshal of the Northern Dist. of Ohio.

JAS. H. SMITH, Clerk S. C. By H. S. Miller, Dep. Many threats had been made that the Marshal would adhere to the plain path of his duty as marked out in the Booth decision, and repeated by special autograph instructions from Attorney-General Black, and see that under no circumstances was the order of the Supreme Court obeyed in the production of the bodies of the relators before its bar. The Marshal's David L. Wightman,

Supreme Court of Ohio,
Columbus, May 25th, 1859, 10 A. M.

Charles Langston,
Simeon Bushnell, and

V.

Habeas Corpus.

Present: Full Bench.

ARGUMENT FOR THE RELATORS.

MR. A. G. RIDDLE:

May it please the Court:

This is a proceeding before the Judges of the Supreme Court at Chambers, yet I recognize the presence of the Court.

The relators by affidavit informed the Court that at the date of their application they were imprisoned in the jail of Cuyahoga County, by the Sheriff of said County, without legal authority; and thereupon one of your Honors issued the writ of habeas corpus, commanding the sheriff to produce the bodies of the applicants before you to-day, and show why he detained them. The sheriff returns these writs with the persons of the applicants, and appends to his return as a part of it, and in addition to the statement that he held them under the mittimius of the U. S. District and Circuit Court, a certified copy of the Journal entry and an exemplification of the records, by which it appears that they were imprisoned by that sheriff, pursuant to an alleged final judgment, awarding that as punishment of the U. S. District

your Honors, that in approaching this grave question of Constitutional authority, that it is claimed, that we are completely hedged in, or walled out, from the consideration of it by the adjudications of the Supreme Court of the United States.

But, your Honors, with all due respect to that high tribunal, I suppose it will not be contended that a decision of the Supreme Court of the United States can impart any Constitutional vitality to an act of Congress which that act intrinsically, and in the first instance, does not possess. In other words, such a decision cannot make an unconstitutional act a constitutional law. The utmost that can be claimed is that it precludes parties from farther inquiry acts as a sort of judicial estoppel, concluding the question. It will not be my purpose in the few remarks in the way of the opening argument which I shall have occasion to submit to your Honors, to enter to any considerable extent into any criticism or analysis of these decisions. That duty will fall more properly within the labors of my associate. I shall barely refer to them, and possibly make a passing remark in reference to one or two of them. I believe the leading one of them referred to and relied on as the parent source of all authority, and which is In the face of that record and directly meet- essentially such, is the case of Prigg v. Pennsyling that exemplification as it is witnessed by vania, 16 Peters, 611. There are also as rethat seal, we still stand here, with the permis- peaters, reëchoers, the cases of Jones v. Van sion of the Court, to say that that imprison- Zandt, 5 Howard, 215; Moore v. Sill, 14 Howment is illegal; that that judgment is a nulli-ard, 13, and the famous Simms case, in 7 Cushty; that there is no such crime as the act al-ing, 285, as also others. leged in that record; that the law by virtue of which and under which it is said that these proceedings were had, is no law. We say that that alleged law is not law:

Court for the Northern District of Ohio.

First; because the Congress of the United States under the Constitution thereof had no power to legislate upon that subject-matter.

Second; that the Congress of the United States under that Constitution had no power to pass such a law—or such an act, as the one upon which these proceedings were based.

Third; that under that law this record charges no crime.

Fourth; that that claimed law is in contravention of the provisions of the Ordinance of 1787, which is of antecedent and paramount authority.

I do not know, but it will be sought to add to these, what is known as the Boothe case, recently said to have been decided by the Supreme Court of the United States, on a writ of error to the Supreme Court of Wisconsin. But I do not know as that has been given to the courts in such a form that it can be treated by the Courts as authority. I think the Supreme Court of Ohio will hardly find itself called upon to resort to the columns of newspapers, however veracious they may be, for authority. Res adjudicata can hardly be claimed to reside

there.

And first of the Prigg case. And while I would approach this with due respect, I would yield it no more deference than I would any of the decisions of this high tribunal in whose pres

This is the case cited as settling the question of the power of Congress to legislate upon the reclamation of fugitive slaves; but it will be found when this case is fairly analyzed, it covers no such ground.

It was not the fortune of either the Attorney-ence I stand. General with whom it is my good fortune to be associated in this case, or of myself, to hear the arguments recently submitted to your Honors, upon a prior application by these relators for relief, while the proceedings in the U. S. Court were still pending. For myself, I wish merely to add, that if it shall be found that I do not follow the same course of argument, it is not because I seek in the slightest degree to waive the positions then taken; and if I should chance to offer some of the same arguments, I hope not to be altogether amenable to the charge of tautology. I am perfectly aware,

It is difficult for the legal mind to see how that question could have been properly before that Court, so that its passing upon it is to be taken as an adjudication, in the judicial sense of that expression. A party-Prigg was prosecuted under the State law of Pennsylvania for kidnapping, convicted, and sentenced to the penitentiary. The case was taken to the

Supreme Court of the U. S., and the main | law of the land; and I submit that the Suquestion upon which that Court was called to preme Court of the United States can give no pass, was solely and exclusively the constitu- sanction, that shall make its adjudications the tionality of the act of the State of Pennsylvania. | law of the land.

The Supreme Court of the U. S. decided that May I be permitted, in the third place, to that act was unconstitutional, and unconstitu- say, that in my humble judgment there is nothtional because they settled a certain other ques-ing in that decision by which this Court, repretion, namely, that the Constitution guarantees senting the judicial sovereignty of this State to the master the right of recaption, and by vir- can be estopped ? I need not detain your tue of this bare guarantee the master, or owner Honors with any pedantic schedule of the eleof the slave who escapes in another State, may ments of sovereignty which necessarily enter pursue and make manual recaption of him; and into the combination of that definition as apreturn him to the State from which he escaped; plied to States and nations; but among them I and because this is so and not otherwise, the take it that the most important will be found to law of Pennsylvania, which contravenes this be the protection of the rights of the citizen; constitutional right of recaption is necessarily while he lives in strict observance of the golden unconstitutional. That disposes of the case. rule of the civil law; and "lives honestly, hurts And therefore, as I have already intimated, it nobody, and gives to every man his due;" is difficult to see how the power of Congress to and that it is going far to say that the right on legislate in aid of the master was at all before his part to demand protection, and the duty of that tribunal. It was not before them, and all the State to render it is not so imperative as to they say of it and other points, is the purest be a question involving the sovereignty of the obiter dicta. State. And it seems to me that it is a part and parcel of the nature of such things as States, that when the question of State sovereignty, as between itself and its citizens, is broached, this tribunal is the exclusive court of the last resort and is not bound, and cannot be bound by the decisions of any other tribunal whatsoever; unless you lay the whole sovereignty of the State at the foot of that foreign jurisdic

And, if not irreverent, it seems to me that that case is amenable to just criticisms of quite another sort. That court commences with all veneration be it said by establishing new rules of interpreting the Constitution, and it winds up that singular process by saying that no uniform rule will apply to the whole instrument, but that each provision must dictate its special rule of construction!

cess;

It is alarming, indeed, when we find that court in such a case recasting old definitions, or reconstructing old or manufacturing new rules! It would certainly challenge fair criticism when we should find that no uniform rule could be applied for the construction of the Constitution of the U. S.! It would also seem that that Court, or rather its judges, were obliged to ward singly and alone the various and devious processes of argumentation by which a majority scatteringly arrived at the conclusions to which they finally gathered in. It is not necessary now to inquire, whether any two of them came to the same result by the same probut it is shown that there was no place upon the legal earth to be found where those venerable pilgrims could all finally reunite, except the point from which they started. I remark, then, in reference to this celebrated case, that it does not involve the question to which I now invite the attention of the Court, to wit; the power of Congress to legislate in aid of the reclamation of fugitives from service or labor. And I wish to say that even if it shall be found in the riper and better conclusions of this Court to cover that ground, that by a single decision of these questions we are not bound. For I say, in the second place, that, passing as it does upon these great questions, under which lie great, original principles, the utmost which ought to be claimed for it, is that that decision furnishes a rule for that case before that Court; but not that it furnishes the

tion.

I press this with modesty. Now we may say of States as we say of individuals, that they have certain inalienable rights, with which they cannot part. That they have duties which they owe to themselves, to their subjects, and to surrounding States; that to the discharge of these duties it is absolutely essential that they should have, to a certain extent, inalienable rights. I am not here to say but that they may have parted with some of these rights; if the people of the State have consented; but the presumption must be that they are all retained intact, until it is proven otherwise. It is not true, your Honor, that the States have grown up under the iron and inflexible rule of the Constitution, and have only by sufferance been allowed to crop out in one direction, or grow out in another, and have been choked and checked, whenever the Constitution did not permit them to shoot upward. The States are older than the Constitution, and in contemplation of law were all present at its formation, without reference to chronology; and if they have parted with any rights it has been of their own choice, by their own freewill, in express grants; their people assenting thereto; and against them no presumptions or implications can prevail. But approaching more directly the Constitution itself, both for the purpose of ascertaining incidentally what the State of Ohio has to concede to it so far as its own sovereignty is concerned; and more particularly to inquire whether the State of Ohio, with other States,

has given power to Congress to legislate in re- | thorizing the enactment of a law, which progard to fugitives from service.

Now, may I be permitted to say here, that the Constitution is not made up entirely of compromises, as the modern notion seems to be? I certainly shall not attempt to seem to be learned, and undertake to make any new schedule of the provisions of the Constitution. All this is old and hard-beaten ground. But with reference to the compromises themselves we find that there was a compromise between the larger and the smaller States, resulting in equality in the Senate; and also a compromise with reference to slave representation; and another with reference to the African slave trade; but beyond these, will some learned man tell us of another? As to the much talked of third clause of the second section of the fourth Article, that it is not, and that it never was intended to be a compromise-judicial falsification of history to the contrary notwithstanding - I undertake to say. That the clause contains a compact, as do other clauses of the same section, and other sections of the same article, I not only admit, but insist; but that there is any grant of power necessarily implied in the nature of the compact, I emphatically deny. In this instrument the grants of power to the new Government must necessarily occupy a prominent place, and as among them the power to make treaties is also conferred, it was eminently proper that the same instrument which conferred it should also provide for all such treaties or compacts, among the States, as a farseeing sagacity could then provide. And hence the compacts, and the fact that they are contained in the Constitution, no more confers on Congress a power to legislate in reference to them, to enforce them; or otherwise, than as if the States had assembled prior to the formation of that instrument, and had formally agreed upon and entered into them, and had made them perpetual.

In addition and as adjuncts to the grants enumerated, there are prohibitions, standing out in just as bold and broad relief all the way along these grants, limiting their exercise on the one side; or prohibiting it altogether on the other. Guarantees, no less important, perhaps, than the others, occupy just as prominent a position; which provide for certain rights, and certain privileges, of paramount importancestanding pledges that they shall be protected.

Equal to all, yet occupying less space, your Honors, are found in this Constitution reservations. Thus wherever a grant of power is made, you find it surrounded and hedged in with prohibitions, guarantees, and reservations, all of which are to be beaten down and annihilated, before an usurpation can find place and toleration. With this outline, I am to approach this instrument for the purpose of searching for a power, not only to legislate upon the subject of fugitive slaves, but to legislate in its favor. For it cannot be contended that a power au

vides for, and authorizes, and furnishes the means of recapturing fugitive slaves, is not a law directly sustaining slavery. Before entering upon this investigation I beg leave to call to mind two or three so well-established propositions, that they have become inflexible rules. And first, Slavery is not national, but local. In the face of solemn platforms, and in the teeth of national politicians, I undertake to say, that slavery is not legally or constitutionally a national institution; and hence, certainly the fostering protection of it, would not naturally fall within the sphere of the duties of the General Government. That it is a purely State local institution, and therefore all regulation of it, must fall outside of the powers delegated to the General Government, and be left entirely to individual States and lesser localities.

I remark, second, that slavery - I need not refer your IIonors to authorities in support of this proposition in the United States exists wholly and exclusively, by virtue of positive law. Farther, that all presumptions are, necessarily and essentially, adverse to its existence. It follows, then, that if slavery is to exist only by express authority, it cannot exist by implied authority; and if the presumptions are against slavery, the presumptions are just as conclusively against the existence of a law by virtue of which slavery would exist. If it cannot exist by implication, you cannot imply the law, or the power to enact the law; and as a converse of all this, all the presumptions are not only against slavery, but in favor of Freedom. Then, your Honors, if slavery can only exist by positive law, and not by implication; and if we must presume against the existence of slavery, and against the existence of any law authorizing it; and of course against the existence of any power by which such a law could be enacted. We unroll the Constitution, with an absolute presumption that it does not contain such a power, a presumption that can yield only to an express grant of it. to inquire, then, whether there is in the Constitution an express grant of power to Congress, to legislate in favor of slavery; or whether there is an express grant for some necessary object or purpose; such that for its accomplishment, such a grant in reference to slavery must necessarily be carried with it.

We are

In considering this instrument, much valuable information may be gleaned from the history of those times; as to what was the object and purpose of the framers of it. But the historical argument I leave entire to the Attorney-General.

In contemplating the Constitution itself, we find inscribed upon its portal the very objects of its creation, to which alone it is solemnly dedicated; and under it is subscribed the names of its framers, the time, place, and date of its erection.

Hear that solemn inscription and ordination: | of a master upon his fugitive slave, is a judicial "We, the people of the United States, in claim under the Constitution of the United order to form a more perfect union, establish States; and that being such, it necessarily called justice, insure domestic tranquillity, provide for to its aid and for the purpose of its enforcement the common defence, promote the general wel- the legislative power latently vested in Confare, and secure the blessings of liberty to our-gress. Is that true, your Honors? With all selves and our posterity, do ordain and establish deference to this famous decision, if it be true this Constitution for the United States of that the legislative power of Congress is coexAmerica." tensive with the judicial power of the Federal Courts, then I ask what becomes of State authority, legislative or judicial? For, in various ways, all conceivable questions of right can be brought before the Federal judiciary, and has Congress so boundless a range of legislative power as that?