the last clause of the fourth of the Confede- | ly had in the articles of Confederation and the ration, uncoupled with any power; whence it Ordinance of '87, and both alike, in both places, was taken, and promoted to the first section are uncoupled with any grant of power whatof the fourth article of the Constitution. And ever. This Ordinance of '87 was, I believe, the not only that, but when it is transferred there first declaration of law or compact, in which is coupled with it an express grant of power, the people of the United States, as a nation, because the framers of the Constitution knew had embodied and set forth a provision for the as everybody knows, that without an ex- rendition of fugitives from service, and this press grant, there could be no power; and clause there stood uncoupled with any grant of the experience under the Confederation, had power to Congress. It is true, that the lapse of demonstrated the necessity for a proper en-time between that Ordinance and the Constituforcement of this provision, and hence the power was granted.

The second clause, of the second section, of article fourth, is a condensed form of the provisions of the first clause, of the fourth article, of the articles of Confederation, which read, "The better to secure a perpetual friendship," etc. (See 4th Art. Const.)

Standing in that place in the fourth article, when the framers of the Constitution came to "make up their jewels," and incorporated it into their structure, they gave it the place of the first clause, in the second section, of the fourth article. But there is no grant of power attached to it, in the transfer, as in the case of the first section of this article. And I claim that since, as a matter of historical verity, the necessities arising under the provisions of that clause are sufficient to have invoked that power into life, if it is supposed to have slumbered within the folds of that purview. And yet no one has contended, that I am aware of, that there is any power in Congress to legislate for the purpose of enforcing that solemn compact, it stands in remarkable contrast with its fellow section, which had long remained without a grant of power, but when transferred into the Constitution had such a grant appended to it, while this remains without.

The second clause, of that second section, of the fourth article, is the one in reference to the extradition of fugitives from justice. This is followed by the third and sorely contested clause, which treats of the return of fugitives from service, or labor.

due."

tion was not so great as to afford the States any considerable experience of its workings, but it is none the less true that it was transferred without the expression of any serious desire for its amendment, or the addition of a grant of power; it was transferred to the Constitution, and there embodied without material change, to the entire satisfaction of all the members of the Convention, and the people of the States, where it reposes in its own original force; and not implying, because not expressly declaring, the power of Congress to enforce its provisions by legislation.

Transferring it, then, as they did, and leaving it uncoupled with any grant of power, the conclusion is irresistible that it-like its two predecessors in the same section is to be treated as a simple compact, conferring no more power upon Congress, and calling Federal legislation no more to its aid, than any compact outside the Constitution. And when it is remembered that the first section of this fourth article has an express power appended, and when we see that the succeeding third section also contains a grant of power, which is omitted from all the clauses of section second, the conclusion is perfectly irresistible that it was intended that no power should attend any of the clauses of that second section.

I do not mean to contend, your Honors, that the contemporaneous construction of that article is not manifest, to some extent, perhaps, in the legislation which was ventured upon under it, by a Congress composed in part of the framers of the Constitution itself; nor yet that such "No person held to service or labor in one construction is wholly valueless, but I am not State, under the laws thereof, escaping into an- aware that the presumption drawn from the other, shall, in consequence of any law or reg-fact that a law was enacted, is any stronger in ulation therein, be discharged from such service reference to the action of the national legislaor labor, but shall be delivered up on claim of ture, than in reference to the acts of the legisthe party to whom such service or labor may be | latures of the several States upon the same subject. But if this be taken as a guide, the legisIn some respects, standing together and treat-lation of the several States neutralizes, and ing of the extradition of certain classes of per- more than neutralizes any legislation of Consons-in each case spoken of as persons gress. Take the act of Pennsylvania alone, these second and third clauses, of this second and then group about it the dozen others, insection, of the fourth article, are proper to be cluding the States of Ohio, Indiana, Illinois. compared, to see how far they may be taken to- It is known as an historical fact that the enactgether. As the third clause was taken from the ment of 1793 did not arise out of the necessiOrdinance of 1787, so was the second from the ties of any case which sprung up under this articles of Confederation; and as the third is clause of the Constitution. But a question not materially changed, neither is the second: arose between the executives of Pennsylvania both preserve the same thoughts and the same and Virginia, in reference to the return of a fumeaning, in the Constitution, that they several-gitive from justice, who had fled from Pennsyl

it.

This brings me to my second proposition. We claim that if your Honors shall find, either looking at this instrument as it invites your attention; or through the decisions of other Courts, whose decisions you accept as binding; that Congress has power delegated to it by the Constitution to legislate upon the subject in question; we still claim that Congress had no power to enact this particular law.

vania to Virginia; and it is said that, in the warranted and unwarrantable perversions `of course of that debate, the Governor of Virginia *doubted his power to deliver up the fugitive, and the matter being communicated to President Washington, and by him transmitted to Congress in a message; for the purpose of settling this controversy, the legislative power of Congress was invoked, and the Act of 1793 passed. It is certainly true, as I think, that both sections of this Act are equally unconstitutional, for I see no more authority conferred upon Congress to legislate in reference to fugitives from justice than in reference to fugitives from service.

These two matters stand, in my judgment, as mere naked compacts. There certainly is not, in either case, any grant of power, as I submit to your Honors, by the provisions of this instrument itself. None, whatever! I submit, so far as these two clauses are concerned,—and, preeminently, so far as the third is concerned, that the text nowhere, in any form, invests Congress with any power. It is not necessary here to inquire what the purpose and object of its creation, so far as the means are concerned were. It is sufficient for my purpose, and for the purpose for which we stand before this Court, to say that if we go back to the original right meaning of this instrument to which we all shall go when we have the grace and courage no one will contend, for a solitary moment, that there lurks in it, anywhere, any grant of power to Congress to legislate upon the subject. None, absolutely none. By the very nature of it, such a grant is impossible. The main force of this clause is spent in the prohibition.

And first, they had not this power because this act violates the otherwise inviolable right of persons to personal liberty. It subjects a person to the actual manual caption of whoever pretends to be his master. I need not stop here to detain, much less to attempt to entertain this Court with that part of the legal argument which pertains to this point; nor to call the attention of the Court to the fact that slaves as slaves, are excluded from the Constitution by name. Nor need I read to you the debates in reference to this matter, which took place in the Convention where the Constitution was framed, as well as those which sprang up in the various State Conventions which were called to discuss and pass upon the Constitution as it was offered to the people. That the Constitution, if it treats of slaves at all, treats of them as persons, and hence confuses thein-if such a term may be used. with the great mass of other persons within the States, I think cannot be disputed. I do not now recollect that there are more than three allusions in the Constitution which are supposed to have reference to slaves. The first is in the third clause of the second section of article first, which relates to the apportionment of representation. The second is found in section ninth of article first, in reference to the slave trade. The third, and I think the only remaining one claimed, is found in this third clause of the second section of article 4th.

This matter has been passed upon by the Supreme Court, in the case of Grous v. Slaughter, 15 Peters, where the Court, Judge McLean, giving the opinion, expressly decides that the Constitution treats slaves as persons exclusively.

"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 delivered up on claim of the party to whom such service or labor may be due." It declares that the States shall not legislate adversely; and that, in my humble judgment, is the whole force of it, and the latter part of it seems to explain the degree of the prohibition: so far are they prohibited from legislating adversely, that the fugitive not only If this be so, then not only is there nothing shall not be discharged from the obligation to in the Constitution which intimates what porserve, but he shall be delivered up. This is said tion of the people shall be treated as slaves, to impose a duty upon the Federal judiciary; but no Act of Congress might distinguish beand the sweeping argument in the Prigg case tween the persons who might be so classed is, that whatever falls within the jurisdiction of under it, and the great mass of other persons. the Federal judiciary is within the legislative That is not attempted on the part of this purview of Congress, which I have already dis- statute. It provides that PERSONS posed of. But it is clear enough that this en- sons owing service or labor, in one State and joins a duty upon the States alone, and upon no escaping into another, may be seized by manual department of the General Government. I am caption; and in this, we submit, it completely perfectly frank to say if I may be permitted violates the provisions of the Constitution itself. so far to depart from the argument-that, as a This cannot be tolerated. There is nothing citizen, I accept the Constitution with all its which designates the persons who may be seized, compacts and injunctions, and I stand here only but it arms every man who may choose to for the purpose of contending for the Constitu- assume to be the owner of another man, with tion in its purity, and protesting against un-power by mere brute force, to seize him and

all per

the decision in the Prigg case claims to settle the rule to the contrary, but your Honors are aware that I do not recognize that decision as 4 conclusive of these questions. I say, then, that this statute reduces persons to things, and is therefore no law.

I claim further that this statute directly violates the fourth article of the Amendments to the Constitution, which provides that,

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirination, and particularly describing the place to be searched, and the person or things to be seized.”

Again it is in express violation of article five. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be put twice in jeopardy of life or limb; nor shall be compelled in any criminal case, to be witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

drag him away from the protection of law. Can it be claimed for a moment that the Constitution confers power to enact such a law? In a free State the presumption is that every man is a freeman. Does this presumption cease with the approach of one who claims to be the owner of a citizen? Does it not go on up to the ultimate point where he is legally proven to be a fugitive, owing service or labor, as claimed? Now it is true that third parties are to take notice from acts and claims; the claim may be notice to them; but it does not destroy the presumption of the law, that the man claimed is a freeman. I know that in this same Prigg case, the Court undertake to say that the title of the master to his slave, as it existed in Kentucky, is preserved intact in Ohio; but I submit with all deference, that this is not and cannot be true. The decision of no court can carry the municipal laws of one State into another, and say that when a slave runs away, he wrenches from the statute book a portion of the law of the State from which he flees, and carries it with him, as a sort of legal halter upon which the master may seize, and lead him back whence he came. Will it be claimed that a man can sell and transfer his slave in Ohio? or that he may whip him for insubordination to subdue him? Then slavery is actually an institution of Ohio! I say that the instant a slave touches Ohio soil, he casts his chains the whole exuvice of the slave from him, and becomes a freeman, but still owing service not morally, not by virtue of any contract, but by this curiously worded phrase of the Constitution "owing service or labor;" he brings with him this obligation as a dark stain, a horrid contingency, and through it may be seized as a PERSON but never as a slave and BY DUE PROCESS OF LAW," this obligation being proven, may be delivered up to his master, and again resubjugated to slavery in the State from whence he escaped, but not in Ohio. While here, for every other conceivable purpose, he is wholly within the protection of our laws. This is the whole extent and I claim, in the second place, your Honors, force that this article of the Constitution that this act is void because it vests judicial permits. A slave cannot be claimed as prop- powers in certain commissioners, who are neierty, because nowhere in the Constitution of ther created, appointed, nor paid in accordance the United States, any more than in the Con- with the requirements of that part of the Constitution of Ohio, is any property in man stitution which defines the conditions upon recognized. The instant, therefore, that a which Federal officers may exercise judicial master in Ohio undertakes to deal with a fugi-functions. See article third. This question tive from his service as property, he is without color of constitutional right, and should be dealt with as a criminal. A fugitive from service cannot be held as property, not only because property in man is not recognized in the Constitution, but because with property, and its incidents as such, the Federal Government has nothing to do, save in the very limited manner specified. Congress can, under any circumstances, legislate upon slaves only as persons, even if it had full power to legislate in aid of the provisions of this clause. I know

Now am I forced, your Honors, to stand here and claim that a man cannot, by virtue of a mere power of attorney, or of his own unsupported claim of ownership, come here, and having already decided that a certain citizen of Ohio is his slave no matter what may be his color, lineage, or condition - be his own bailiff, magistrate, jury, and sheriff, and that such a deprivation of a man of his liberty is not "DUE PROCESS OF LAW?" If so, there is no constitutional guaranty for the personal security of a man, woman, or child in Ohio.

As to what is due process of law, see 2 Kent's Com. p. 3.

will arise in the second count of the indictment set forth in the record of Langston's case. The Government therein count upon a seizure of the alleged fugitive John, by virtue of a process issued by one of these U. S. Commissioners.

I claim, in the third instance, that this statute is void because it not only authorizes the recaption of a person by an alleged owner with or without one of these unconstitutional commissioner's warrants, but authorizes the master to fix his status as being a slave and to return him to endless bondage in violation of the seventh

trine is solemnly reaffirmed, and his Honor, II. Where a Court has acquired prior jurisJudge McLean, takes judicial pains to dwell diction or possession of a subject of litigation, upon the perpetual and inviolable freedom thus a coördinate tribunal will in nowise interfere pledged to this soil, declaring that nothing short with the action of such court touching such of revolution can ever plant upon it in any subject. The tribunal which first acquires form the accursed institution of slavery. I do, jurisdiction holds it to the end, and it is exclutherefore, stand here solemnly to contend, that, sive. 3 Ohio St. Rep. 105, Keating v. Spink; under that ordinance, which limits in its very | 16 Ohio Rep. 405, Merril v. Lake et al.; 9 terms the capture of slaves to those who escape from some one of the original thirteen States, Congress had no power to authorize the recaption in Ohio of fugitives from service in Kentucky.

And now, with this brief presentation of the points to which I have called attention, and leaving whole regions of argument untouched, and leaving also all the grave and great considerations which gather about this case, and strongly press for strong speech unuttered, I submit this weighty matter with all interests and consequences, to the decision of this High Tribunal.

The Court took a recess until half past 2, P. M.

FIRST DAY. AFTERNOON SESSION. Mr. SWAYNE, in behalf of the respondent, declined making oral argument, for the reason that he thought the authorities presented in his printed brief must, without elaboration, more than satisfy the Court of the soundness of the positions therein taken, and also because but recently he had argued before the Court similar points at considerable length.. His printed brief is this:

Wheaton 532, Smith v. McIver; 20 Howard 594, Taylor et al. v. Carrol; 10 Peters 400, Hagan v. Lucas; 3 Peters 304, Harris v. Dennie; 7 Howard 471, Peck v. Jennis; 8 Howard 107, Williams v. Benedict; 17 Howard 475, Pullian v. Osborne; 6 McLean 365, Ex parte Robinson; 4 East 523; 25 Eng. Ch. Rep. 474; 3 Paige 199; 5 Id. 489; 7 Idem 514; 9 Vesey 335; 1 Jacobs 572; 2 Sch. & Lef. 229.

III. The judgment of the District Court is conclusive. It cannot be collaterally questioned. 1 Ohio St. Rep. 233, Bank of Wooster v. Stevens; 3 Id. 494, Sheldon's Lessee v. Newton.

"The power to hear and determine a cause is jurisdiction; and it is coram judice whenever a case is presented which brings this power into action." Ibid.; case last cited.

collaterally questioned in this way. A writ of IV. The validity of a judgment cannot be habeas corpus cannot be made to perform the functions of a writ of error. If the process under which the relator is held be regular on its face, this Court will not interfere in this mode of procedure. 1 Barb. 341, In the matter of Prime; 51 Eng. Com. Law Rep: 648, 655, In Ex parte Partington; 57 Idem, 215, În re Richard Dunn; 57 Idem, 416, Ex parte Cobbet; 68 Idem, 564, 567, Dimes case; 2 Greene 312, Habeas Corpus. Peltier v. Pennington; 4 McCord 233, Ex parte Gilchrist; 1 Watts 66, Comm. v. Leakey; 5 Ind. 290, Wright v. The State; 6 McLean

Supreme Court of Ohio,
Special Session-May 25, 1859.

Simeon Bushnell

Statement, Points, and Authorities under Rule 355, Ex parte Robinson; 2 Paine 348, In the

II. (for Oral Argument).

STATEMENT.

matter of Martin; 3 Pet. 193; 7 Wheat. 38.

V. When it appears, in proceedings upon a habeas corpus, issued by a State Judge, that the relator is held under authority emanating from the laws of the United States, the Judge can proceed no farther, but must remand the prisoner. 21 How. -, United States v. Booth; 5 McLean, 199, Morris v. Newton; 9 Johnson, 239, Ferguson's case; Hurd's Hab. Cor. 198, Mr. Justice Nelson's charge.

VI. The adjudications of the Supreme Court of the United States, upon all questions within its jurisdiction, are binding upon the State Courts, and conclusive.

(2.) The Constitution of the United States provides :

Art. 6. "This constitution, and the laws which shall be made in pursuance thereof, and all treaties made, or which shall be made, unde the authority of the United States, shall be tas