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AFTERNOON SESSION.

Christendom, surviving, by its inherent vitality and all the great interests which it involves. of justice, the overthrow of empires and the Weightier consequences never hung on the arwreck of civilization, - let it follow the track | bitrament of any tribunal. The strain of the blazed out for it by the Supreme Court of the Federative System has come, and your Honors United States itself in the earlier - and it may are to determine, at least for the citizens of not unfitly be added -- the better days of the Ohio, whether under that system there can be Republic.

any adequate protection, for the reserved Rights There still remains a single topic of which it of the States, or any efficient safeguards for the is difficult to determine how much or how little Liberty of the citizens THE CAUSE OF ought to be said. No man has dared to breathe CONSTITUTIONAL GOVERNMENT IS. it in this présence, and yet the Federal func- HERE, AND NOW, ON TRIAL. GOD tionaries have filled the air with it; so that I SEND IT A SAFE DELIVERANCE. hear and you hear it openly said, that if this court --- following these ancient landmarks, fol- SECOND DAY. MORNING SESSION. lowing the track of the Supreme Court before The masterly argument of the Attorneyit became a sectional court ---shall, in the exer- General occupied the entire afternoon of yescise of its highest and most imperative function, terday, and the morning of to-day. The Court enlarge these relators, there will be a collision adjourned till afternoon to hear argument in between the State and the Federal Govern- another and somewhat similar case.

WHAT THEN? Are we children; are we old women, that we shall be frightened from SECOND DAY. duty by this menace ? Are the court, coerced After hearing argument in the case of the by these threats, to pronounce a decision which relator from Cincinnati, the Court took recess shall stultify their judgments and blast their until Saturday morning, to make up its opinion. consciences ?' Has come to this, that the Federal authorities, instead of invoking the ap

THIRD DAY. SATURDAY.. pellate power of the Supreme Court to review The Chief Justice, opening the Court, anyour proceeding, are to trample your judgments nounced that, as the case was one of much imunder foot in your very presence ?. And are portance, and the authorities cited by counsel you, therefore, to remand these applicants to an were numerous, the recess had been consumed unlawful imprisonment? If these be the only in industrious labor, without finishing the work alternatives - if collision can be avoided only as thoroughly as it seemed to the Court desiraby striking down every safeguard with which ble, and, doubtless, would also to all parties the Constitution has hedged about the liberty interested. The Court would, therefore, take of the citizen, LET COLLISION COME

further adjournment until Monday afternoon, COME NOW. Let the question be settled while at 3 o'clock, when it was hoped the decision I live. I don't want to leave the alternative of would be rendered. collision or of the absolute despotism of the Federal Government as a legacy to my children. But,

FOURTH DAY. MONDAY, MAY 30, do not misunderstand me. It is not in a judi- At 3:24 the Judges took their seats. The cial tribunal that one should hold the law as opinion of the majority was read by. Chief naught, or undervalue the inestimable blessings Justice SWAN, only a syllabus of which his of order and peace. LAW. Í reverence; but Honor was willing to furnish for publication : not the law of King 4. ORDER, I stand by that, but not the "order" which " reigned

JUDGE SWAN'S OPINION. that I would preserve at almost any cost - but not that peace which Judges SWAN, SCOTT, and PECK held : is only the quiet of the grave.

1. That the provisions of Article 4, Section But there will be no collision. These threats 2, of the Constitution of the United States, and fears are alike idle. If this court shall by "No person held to service or labor in one its judgment discharge the relators, the Federal State under the laws thereof, escaping into Government will acquiesce in that judgment another, shall, in consequence of any law or until it shall have been reviewed in the mode régulation therein, be discharged from such

Constitution. Whenever service or labor, but shall be delivered up on another like case shall again arise, the State claim of the party to whom such service or laCourt will again discharge, and this process bor may be due," guarantees to the owner of must be continued until the Federal Govern- an escaped slave the right of reclamation. ment, listening to reason, shall voluntarily return II. That a citizen; who, knowingly and inagain to the sphere of its legitimate functions tentionally, interferes with, for the purpose of and duties; or until the PEOPLE, roused to rescue, or rescues from the owner an escaped action, and exercising the constitutional remedy, slave, is guilty of a violation of the Constitution shall constrain its return by a will only less of the United States, whether the Acts of 1793 sovereign ; and with reverence be it said and 1850, commonly called the fugitive slave only less divine than the WILL OF GOD. laws, are constitutional or not.

And here, I leave with your Honors, this case III. That the question in this case, 'is not

*: Warsaw.

JUDGE BRINKERHOFF'S OPINION.

whether the Fugitive Act of 1850 is unconsti- of the national and State governments, in the tutional in respect to the appointment and pow-power of Congress to provide for the punishers of Commissioners, the allowance of a writ ment of rescuers of escaped slaves, that power of habeas corpus, the mode of reclamation, etc., is to be disregarded, and all laws which may be but whether Congress has any power to pass passed by Congress on this subject from henceany law whatever, however just and proper in forth, are to be persistently resisted and nulliits provisions, for the reclamation of slaves, or fied, the work of revolution should not be to protect the owner of an escaped slave from begun by the conservators of the public peace. interference, when duly asserting his constitutional rights of reclamation.

Judge Scott orally assented to the form IV l'hat Congress, from the earliest period going, saying that he agreed with its logic in of the government has, by legislative penalties, the main, and with its conclusions altogether. vindicated the constitutional right of the owner of slaves against unlawful interference. He might or might not write out his opinion

V. That such legislation was adopted in 1793, hereafter. by the second Congress elected under the Con- Judge Peck delivered an elaborate written stitution, composed of many of the members of opinion, coinciding with Judges Swan and has, from that day to this, been in active ope- Scott, comprising a review of the decisions of ration, and has been acquiesced in by all de- the courts, and particularly of the State courts, partments of the Government, National and upon the questions involved in the case, and State ; and the legislative power of Congress treating the whole matter as a res adjudicatch

. General Assembly of the State of Ohio in their We were not able to procure either the opinion statutes; by the Supreme Court of the United or a synopsis of it. It was mainly an elabora States, and by the Supreme Courts of Massa- tion of the brief of Mr. SWAYNE. chusetts, New York, Pennsylvania, Indiana, Illinois, California, by the Supreme Court of Ohio on the circuit, and, indeed, by the Supreme Courts of every State in the Union, BRINKERIIOFF, J., said: where the question has been made, and has Since the close of the argument of these never been denied by the Supreme Court of cases Sunday and a visit to my family interany State -- the Courts of Wisconsin, notwith- vening - I have not had time to do more than standing the popular impression, not forming an hastily to sketch a brief outline of my opinion exception.

on the questions they present. This I give; VÍ. The right to rescue escaped slaves from and I may and may not, as leisure or inclinatheir owners being denied to all citizens of the tion may prompt, commit them to paper, with United States by the Constitution ; Congress the reasons on which they rest more fully and having prohibited it and enforced the prohibi- in detail hereafter. tion by penalties; the Supreme Court of the I. Under the advice of the District-Attorney United States and Courts of the free States of the United States, the indictments under having recognized and acquiesced in such leg- which the relators were convicted, are appended islative prohibition and punishment, if the to, and form a part of the return to these writs. question is not thus put beyond the reach of The question whether they charge a crime or the private. personal views of Judges, and if not, is therefore before us. Both indictments they possess judicial discretion or power to are fatally defective in this, to wit, that neither overrule on the authority of their individual of them aver, that John was held to service or opinions, this unbroken current of decisions labor in the State of Kentucky under the laws and this acquiescence of the States of the thereof." 2d section, 4th article, Constitution Union, and change the settled interpretation of United States. the Constitution of the United States; then 1. This defect is not a mere error or irreguthere is no limit, and no restraint upon Judges larity. If it were, so far as this point is conat any time and under any circumstances, their cerned, we should be obliged to remand the own individual opinions, the arbitrary inter- prisoners; for the writ of habeas corpus cannot preters of the Constitution.

be made to perform the functions of a writ of VII. Whatever differences of opinion may error. But, 2d. This defect is an illegality. now exist in the public mind, as to the power The averment omitted is of the essence of the of Congress to punish rescuers as provided in crime; without the fact omitted to be averred, the acts of 1793 and 1850, no such vital blow is there is no crime ; for it is no crime to rescue given either to constitutional rights or State from custody a person held to service or labor xovereignty by Congress, thus enacting a law in another State otherwise than" under the laws to punish a violation of the Constitution of the thereof." If there was no crime charged in United States, as to demand of this Court the the indictment, the judgment of the District organization of resistance. If, after more than Court of the United States under which the sixty years of acquiescence by all departments relators are held is corana non judice and void;

cess.

lavor

they are illegally restrained of their liberty, | land, be a crime ; and therefore the imprisonand they ought to be discharged.

ment of Langston by way of punishment of II. 1. The indictment against Bushnell con- such pretended crime, is an illegal restraint of tains but one count, which charges the rescue his liberty, and he, too, ought therefore to be of John from the custody of an agent of the discharged. claimant of his labor and service in Kentucky

III. These relators ought to be discharged, John having been arrested and held in cus- because they have been indicted and convicted tody without warrant or any color of legal pro- under an act of Congress upon a subject-matter

in reference to which Congress has, under the It appears, then, on the face of the record Constitution of the United States, no legislative which is made a part of the return to this writ, power whatever. that here was a person domiciled or sojourning As to the correctness of this proposition, there in Ohio, a free State, and therefore presumed does not rest on my mind the shadow or glimin law to be a free man, " unreasonably seized” mer of a doubt. and“ deprived of his liberty,” not only “with- The federal government is one of limited out due process of law," but without the pre- powers; and all powers not expressly granted tence or color of any process whatever. This to it, or necessary to carry into effect such as arrest and custody was in direct contravention are expressly granted to it by the terms of the of the fourth and fifth articles of the amend- Constitution, are reserved to the States or the ments to the Constitution of the United States. people. Amendments, Art. 10. The rescue of a person thus" unreasonably “No person held to service or labor in one seized” and “ deprivedl of his liberty without State, under the laws thereof, escaping into due process of law,” cannot be a crime; and another, shall, in consequence of any any statute or judicial procedure which at- regulation therein, be discharged from such sertempts to make or treat it as a crime, is uncon- vice or labor, but shall be delivered up on stitutional and void.

claim of the party to whom such service or 2. The indictment against Langston has two labor may be due." Art. 4, Sec. 2. counts; the first of which is entirely similar to This is the only clause of the Constitution that against Bushnell ; and the second of which from which anybody pretends to divine, or in alleges a similar rescue of Johni while arrested which anybody pretends to find a grant of and held in custody under a warrant issued by power to Congress to legislate on the subject of a Commissioner of the Circuit Court of the the rendition of fugitives from labor. I can United States, authorized by act of Congress find in it no such grant. The first part of it to issue such warrant, and, under the authority simply prohibits State legislation hostile to the thereof, to arrest, hold, and remove the person rendition of fugitives from labor.

Such fugidescribed therein to a foreign jurisdiction as a tive shall not be discharged in consequence slave.

of any law or regulation” of the State into The acts of Congress referred to clearly at- which he shall escape. " But shall be delivered tempt to confer on these commissioners the up.” By whom? By Congress ? By the powers and functions of a court; to hear and Federal authorities? There are no such words; determine questions of law and of fact; and to and no such idea is-hinted at. This is evident clothe their findings and determinations with from an inspection of the whole of the precedthat conclusive authority which belongs only to ing portion of this article. judicial action. And the issue of the warrant Art. 4, Sec. 1: “Full faith and credit shall mentioned in the indictment was a judicial act. be given in each State to the public acts, re

These provisions of the acts of Congress records, and judicial proceedings of every other ferred to, and all warrants issued under them, State. Anil the Congress may by general laws are unconstitutional and void, for the following prescribe the manner in which such acts, records,

and proceedings shall be proved, and the effect These commissioners are appointed by the thereof." Here, in the first place, is a compact Circuit Courts of the United States only; hold between the States respectively -- an agreetheir office at the will of such courts; and are ment of the several States to and with each paid by fees. Whereas, by the express provis- other, that the public acts, records, and judiions of the Constitution of the United States cial proceedings ” of each shall have “full faith (Art. 2, Sec. 2, and Art. 3, Sec. 1), the judicial and credit” given to them in all. Had this secfunctionaries of the United States must be ap- tion closed here, would any one claim that it pointed by the President, by and with the ad- embraced any grant of legislative power to Convice and consent of the Senate, hold their offices gress ? I think not. But the framers of the during good behavior, and receive a fixed. com- Constitution thought that Congress ought to pensation which may not be diminished or in- have the power “to prescribe the manner in creased during their continuance in office. which such acts, records, and proceedings, should

The warrant of such a commissioner, there- be proved, and the effect thereof;” and hence fore, is a nullity; it could afford no authority to they gave the power in express terms. When hold John in custody; and to rescue him from they intended a grant of power to Congress, such illegal custody could not, by the law of thel and not a mere contract stipulation by, or in

reasons:

power

junction of duty upon the States, they say so, article of the Constitution above quoted, was and leave us no room for cavil on the subject. borrowed and transferred, with but slight verBut let us go on

bal alterations, from the articles of confederaSec. 2. “The citizens of each State shall be tion and the ordinance of 1787.- the first three entitled to all privileges and immunities of citi- from the former; and the last from the latter zens in the several States.

with this exception only, that to the first of " A person charged in any State with trea- these clauses was added a grant of power to son, felony, or other crime, who shall flee from Congress to prescribe the manner of proof and justice, and be found in another State, shall

, effect of public acts

, records, and judicial proon demand of the executive authority of the ceedings. Here, then, we have certain articles State from which he fled, be delivered up, to of compact -- admitted or declared to be such, be removed to the State having jurisdiction of and nothing more -- borrowed and transferred the crime."

from one instrument to another, with no intiThat these clauses of section two are mere mation of any change of their character as ararticles of compact between the States, depend- ticles of compact, except in a single instance ent on the good faith of the States alone for, where the change is expressly declared. The their fulfilment, I suppose no one will dispute: inference seems to me to be irresistible, that, They do not confer upon Congress any power except so far as the change is expressly dewhatsoever to enforce their observance. Then clared, they remained, after the transfer, the follows the last clause of section two, in respect same as they were before

articles of compact, to fugitives from labor or service, first quoted. and nothing else. And this, like all the other preceding clauses of I conclude, therefore, that the States are this article, except the first, is destitute of any bound, in fulfilment of their plighted faith, and grant of power, or even allusion to Congress or through the medium of their laws, legislation, the Federal Government. Now, if a grant of and functionaries, to deliver up the fugitive from

to Congress was, here intended, why this service or labor, on claim of the party to whom silence ? If the framers of the Constitution in- such service or labor may be due under the laws tended a grant of power to Congress in this of another State from which the fugitive has clause, why did they not say so, as they did say fled. But the Federal government has nothing in the first section, in respect to:" public acts, to do with the subject, and its interference is records, and judicial proceedings ?

sheer usurpation of a power not granted, but It seems to me that no rational answer can reserved. be given to this question, except by a denial of But, it is said, the question is settled, and such intentions. Expressio unius exclusio alie- our argument comes too late. I deny that it rius, is a legal maxim as old as the common is settled. law. The express mention of one thing implies The federal legislature has usurped a power the exclusion of things not mentioned. It is not granted by the Constitution, and a federal the dictate of reason and common sense. It judiciary has, through the medium of reasonings is a maxim which applies' alike in the interpre- lame, halting, contradictory, and of far-fetched tation of contracts, statutes, and constitutions implications; derived from unwarranted assumpIts application was never more obviously tions and false history, sanctioned the usurpaproper than to the question before us; and tion. I deny that the decisions of a usurping when applied, it seems to me to bring with party in favor of the validity of its own assumpit a force little short of mathematical demon- tions

, can settle any thing. It is true that the stration.

courts and legislatures of several of the States Thus far I have reasoned as if we were ignorant have decided in the same way; but they have of the history of the Constitution. But a glance been decisions of acquiescence rather than of at that history confirms the conclusions to which original and independent inquiry. The fact we are brought by the ordinary rules of inter- that such jurists as Hornblower, Walworth, and pretation, and makes assurance doubly Webster thought on this subject as I think, sure.'

shows that the question is not settled. The fact * The Articles of Confederation, under which that a majority of my brethren, as I understand the struggle for Independence was carried them, admit that if this were a new question through, and for which the present Constitu- they would be with me, and that they yield the tion of the United States is a substitute con- strong leanings of their own minds to the force tained nothing but articles of compact. The of the rule of res adjridicata alone, proves that fulfilment of its obligations was dependent upon this question is not settled. The truth is, it is the faith of the States, alone. The Congress not until recently that the mass of intelligent could make requisitions, but had no power to and : inquiring mind in this country has been enforce them.

brought to bear upon this question. It required Again : Certain provisions of the ordinance the enactinent and enforcement of the fugitive of 1787, for the government of the territory slave act of 1850, overriding the most sacred North-west of the Ohio River, were in express and fundamental guaranties of the Constituterms declared to be " Articles of Compact.' tion, and disregarding in its provisions even the

Now, every one of the clauses of the fourth decencies of legislation, as if for the very pur

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pose of irritation and humiliation, and the fine ment, the sole possessor of the only means of and imprisonment under it of white men for the revenue, in the employment of which the peoexercise of the instinctive virtues of humanity, ple can be kept ignorant of the extent of their to awaken general inquiry. That inquiry is own burdens, and with its overshadowing pattured convictions of the mass of intelligent mind by means of its honors, and the mercenary in this country must ultimately control the through the medium of its emoluments, will operations of government in allits departments, speedily become, if it be not already, practically so surely is this question not settled. When omnipotent. it is settled right, then it will be settled, and not. These were my opinions, freely declared, for till then.

years before I had the honor of a seat on this But contemporaneous construction is ap- bench; and, having learned nothing during the pealed to. I admit its weight, and its title to pendency of these cases to change, but much to respectful consideration, But contemporane-confirm them, I know no reason why I should ous construction speaks with a divided voice. hesitate to avow them now. It is true, Congress as early as 1793 legislated I give my voice in favor of the discharge of for the return of fugitives from labor. But the relators. nearly if not quite every one of the old States had also legislated on the same subject in ful

Judge SUTLIFF agreed with Judge BRINfilment of what they deemed a matter of con- KERHOFF in dissenting. from the opinion of the stitutional obligation resting on them. And

majority. His opinion was very elaborate and such legislation on the part of the States, old full, but professional duties forbade his preparand new, continued until the Supreme Court of the United States

, in the Prigg case, so late as ing it for press in season for this work, and he 1842 (1.6 Peters; 539), assumed for the federal therefore, favored us with the following syllagovernment exclusive authority over the sub- bus : ject. And those who appealed to contemporaneous construction should themselves respect it.

JUDGE SUTLIFF'S OPINION. From the foundation of the government until SUTLIFF, J., held: within the last ten years, Congress claimed and That the return to the writs; necessarily exercised without question, full and complete presented for consideration the constitutionality legislative power over the territories of the Uni- of the Act of Congress of 1850, called the ted States; and as early as 1828, in American Fugitive Law. He thought that if the Court Insurance Company v. Canters (1 Peters, 546), were satisfied beyond reasonable doubt, that the Supreme Court of the United States, Chief Congress. had no power to legislate for the

Justice Marshall delivering its opinion, unani- extradition of fugitives from service; or even, mously decided that in the territories Congress if having such power, the law under which the rightfully exercises the "combined powers of prisoners were held was clearly repugnant to the general and of a State government." Yet, express provisions of the Constitution. In either in the recent case of Dred Scott v. Sanford case the return to the writ was insufficient. (19 Howard, 393), all this is overturned and After a careful examination of the whole disregarded, and the whole past theory and subject, he could not say that he had any practice of the government in this respect at- reasonable doubt that this Act of Congress was tempted to be revolutionized cial ipse dixit. We are thus invited by that Upon the first ground he insisted upon the Court back to the consideration of first princi- consideration that the legislative power being ples; and neither it nor those who rely on its in the States respectively prior to the adoption authority have a right to complain if we accept of the Constitution, the reasonable presumption, the invitation.

as well as the express provision of the tenth I know of no way, other than through the amendment of the Constitution, showed that action of the State governments, in which the power still remains with the States, unless delereserved rights and powers of the States can be gated under the Constitution to the Federal preserved, and the guaranties of individual Government. And if the power claimed by the liberty be vindicated. The history of this coun- Federal Government to legislate, it is incumtry, brief as it is, already shows that the federal bent to show title thereto, by pointing :out: the judiciary is never behind the other departments clause under which the same had been ceded of that government, and often foremost; in the by the States. assumption of non-granted powers. And let it He then referred to the rules given by combe finally yielded, that the federal government mentators, which were applicable to the conis, in the last resort, the authoritative judge of the struction of the Constitution. 1st. That the extent of its own powers, and the reservations meaning of the instrument was to be sought and limitations of the Constitution, which the for according to the sense of the terms and framers of that instrument so jealously endeav- understanding of the parties; that where the ored firmly to fix and guard, will soon be, if they terms are clear and the sense distinct from the are not already, obliterated; and that govern- language, recourse to other means is not ad

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