tages which grow out of an orderly oral discus-thority be assumed by any court, judge, or minsion, where voice responds to voice, and eye isterial officer of the Federal Government, the looks into eye, the best mode which the wit of State of which the relator is a citizen, and withman has yet devised for eliciting the truth as in which he is detained, is powerless, to inquire between contending parties. But while I re-into the validity of that detention. In other gret, I have no right to complain of their decis-words, it is said for the claim presupposes ion. It is their undoubted prerogative to con- and admits all this-that however unwarduct the case on their part in such way as to them shall seem best, even though the result is, as here, to leave us utterly in the dark as to the grounds on which they rest their resistance to this application, except so far as the same may be gathered from the skeleton "brief of points," which was only a few moments since placed in the hands of your Honors and myself.

rantable may be the exercise of the assumed authority, however tyrannical, arbitrary, and unlawful the detention, however directly prohibited in the particular instance, by the plain. words of the Constitution; yet the State tribunals are powerless to redress the acknowledged wrong; the victim has no appeal but to the usurper himself. Now I submit to your Honors, that the bare statement of this claim is its own most conclusive answer. For, in effect,

ticular case, is that Federal judges may, by asserting in the form of an adjudication, power to do an act unconstitutional in itself, bind all persons whatever, and preclude them from inquiring either into the validity of the act done or the existence of the power to do it.

And now, what is the case before your Honors? The State of Ohio, in the exercise of one of its most unquestionable attributes of sover-the proposition as narrowed down to this pareignty, and proceeding upon the representation of two of its citizens, presented, in the appropriate mode, that they were unlawfully restrained of their liberty by David L. Wightman, Sheriff of Cuyahoga county, has sent forth its great prerogative writ to that individual, commanding him to produce before your Honors, as the repositories of the Supreme Judicial Power of the State, the bodies of its citizens, and to certify to you the authority by which he so restrains them.

But, may it please your Honors, if a Judge, by declaring that he has power to imprison, can estop all inquiry into the existence of that power, he may equally, by insisting that he has power over property or life, estop all inquiry Responding to this writ, the sheriff has here into the existence of that power. And what is and now produced their bodies, and for answer this power but that absolute, arbitrary dominion as to the cause thereof; returns that he holds over all things and persons, which constitutes them in custody by virtue of a warrant issued the very essence of despotism? Now, whatever to him by the Marshal of the United States for power these Judges may legitimately exercise, the Northern District of Ohio; which warrant is derived from the Government of the United is predicated upon certain proceedings had in States. That Government is one of limited and the District Court of the United States for that delegated powers. The authority of its judisame District; an authenticated transcript of cial, and all other departments, is defined by which is incorporated into his return. From specific metes and bounds; and that there may this transcript it appears that the relators have be no mistaking these limits, they are written been convicted of a violation of the act of Con- down in what is called the Constitution; and to gress known as the Fugitive Slave Act, ap-make assurance doubly sure, the same instruproved on the 18th of September, 1850, and ment declares that all powers not comprehended were thereupon sentenced to imprisonment in within these limits do not belong to it. But to the jail of Cuyahoga county. what purpose is it that this power is thus cifically bounded in, if the power so intended to be restrained may at any time overleap_these limits? The distinction (said Chief Justice Marshall, in Marbury v.. Madison) between a government of limited and of absolute power is utterly gone, if the defined restrictions do not in fact restrain the power, and acts authorized and acts prohibited are to be taken as of equal obligation. Now it is plain beyond all argument that any adjudication of a Federal Judge But at the very threshold of the proceeding repugnant, to the Constitution is void, or if not. I am met with a claim of power on the part of void, that such Judge may, by his own decision, the Federal Government, which, if well found-alter the Constitution. From one or the other. ed, is an insurmountable objection to any fur- of these alternatives there is no escape. It is ther inquiry, but which, I must add, strikes one either an absolute nullity to be everywhere almost dumb with its audacity. It is insisted treated as void, or else instead of a republican that, whenever, by a return to its writ of habeas government exercising only specially delegated corpus, the tribunal of a State is advised that the powers, we have one whose sway is bounded: relator is detained in custody under color of Fed-only by its own will, and have vainly attempted eral authority, whether the exercise of that au- to limit a power which, in its very nature, is

This conviction and sentence being the cause of the relators' detention, the Court are here called upon to inquire into the validity thereof. That validity is now challenged alike by the relators, and the State of Ohio, which latter alone I represent on the ground that the act of Congress under which the conviction was had and the sentence pronounced, is incompatible with the Constitution of the United States, and therefore void.

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illimitable. Again I ask, then, does a judgment But this immunity from collateral question deof a court repugnant to the Constitution, and pends solely upon the presence of these two therefore void, notwithstanding its invalidity, conditions, for if it has not the constitutional bind all persons and things within its appar- capacity to hear the cause, or if the party sought ent scope? To ask that question is to answer to be affected has not been duly brought into it. In this case the judicial action of this court, then its judgment concludes nothing. If court is invoked to liberate these applicants. it has this jurisdiction, its proceedings import Upon the one hand the Constitution which you absolute verity; if it has not, its judgment is an are sworn to support, prohibits these men from absolute nullity. When, therefore, in any probeing imprisoned for the cause alleged. While ceeding in any Court, the judgment of another on the other hand, the Federal Judge in Cleve- tribunal, whether as between the same parties land says they shall be imprisoned. Which of or otherwise, is interposed, either to establish these two is to command the obedience of the or defeat some right then in litigation, the very Court? Is the Constitution superior to the first inquiry always is: Had the tribunal, renruling of that Judge, where the two conflict, or dering this judgment, jurisdiction? If it had, is the ipse dixit of that Judge to override the Con- it concludes in the then litigation of all rights stitution? That is the simple question. If the which were within its scope; if it had not, it latter is to control, then an act which, upon the is treated as mere waste paper, and the rights very theory of the government, is entirely void, which it sought to adjudicate still remain open is yet in practice completely obligatory, an act for discussion and judgment. No judgments, which the Constitution expressly forbids to be civil or criminal, are exempt from this rule. It done is, notwithstanding the prohibition, en- is of absolutely universal application; from tirely effectual. To what purpose, then, does the court of a justice of the peace up to the the Constitution itself declare that it is obliga- highest tribunals. Each one, when called on tory upon you as judges, and why require you to recognize the judgment of another power, to swear to support it, if, at the same time, you whether state or national, home or foreign, are obliged to violate it at the will of any Fed- first inquires and first determines whether it eral Judge? had jurisdiction. Nor until now, and in these But then it is said that the courts of the United cases under the fugitive act, has it ever been States are supreme within their sphere; all agree hinted, that any court was concluded from to that; but what then? So also are the State making this inquiry because the other tribuCourts supreme within their sphere; and the nal which rendered the judgment asserted same argument which proves that the Federal itself to have competent jurisdiction. Now if Courts have a right to determine the extent of the learned counsel who represents the Fedtheir jurisdiction and impose that determina-eral Government (Col. Swayne), should bring tion on State Courts, proves equally that the his action against me in a State Court, upon State Courts have also the right to determine the extent of their jurisdiction and conclude the Federal Courts by that determination. But the question here is not of the supremacy of the Federal Government within its sphere, but whether it is supreme beyond it; for the proposition implies that the adjudication in the case supposed, was an usurpation of power. And, may it please your Honors, the dogma of the supremacy of the Federal Courts within their sphere, and their utter impotence beyond it, suggests the true rule; for it is only the statement, in another form, of the maxim that the judgment of a court of competent jurisdiction is everywhere conclusive, save on proceedings directly instituted to review it; while the judgment of a court which has not jurisdiction, is, in law, no judgment at all. By competent jurisdiction is meant, that the court has constitutional and legal capacity to determine the subject-matter of the litigation, and that the parties interested in that subject-matter, and whose rights therein are to be determined, have been properly brought before it. When these two conditions exist, it has jurisdiction. The right to adjudicate the case is If in an action pending before it, a State vested in the court; and, whether that right is Court may inquire whether a Federal Court exercised regularly or irregularly, erroneously had power to dispose of an ox or an ass, how or otherwise, its judgment binds all persons and much more upon this great writ of habeas corthings which fall within its legitimate scope.pus, may it not inquire whether that same court

a judgment which he claimed to have recovered against me in the Circuit Court of the United States, and upon the production of the record of that Court it should appear affirmatively, either that in that Court he had sued me to recover a penalty given only by a statute of this State; or that the subject-matter being within its jurisdiction-I had never been served with process or otherwise brought into Courtdoes any lawyer within the sound of my voice, does even the learned counsel himself, suppose that the State Court would hold itself or me concluded by that judgment? Surely not. Every tyro in the law knows better. In the one case the judgment would be void for want of constitutional capacity to adjudge any such penalty; in the other for want of jurisdiction over the person of myself. Nobody doubts that. But, may it please your Honors, if in an action touching the rights of property, you may in a State Court impeach the judgment of a Federal Court for the want of jurisdiction, a fortiori, may you do the same thing in every proceeding which concerns the rights of personal freedom.

has power to dispose of the liberty of the citi- renounced the right to prevent that punishment; zen? When, therefore, in response to Bush-but in even these instances, she has retained nell's challenge, made in the prescribed legal the power to inquire whether this limited mode, Marshal Johnson says he restrains him authority for punishing is kept within its narrow of his liberty under a sentence pronounced by bounds. In all else, save these special instances, Hiram V. Willson, Judge of the District Court, the State reserved the power to prevent all punit is a sufficient reply to say either generally|ishment not imposed by itself; and in all cases, that Mr. Willson was no judge at all, or that his including even these, she reserved the right to judicial power did not extend to the case in inquire into the nature of every authority which which Bushnell was sentenced. For if, as to the sought to deprive any citizen of his liberty. particular case he had no power to render judg- For it will not be questioned that the general ment, it is precisely the same as if he were not guardianship of the citizen is confided, not to judge at all. Now suppose he had undertaken the Federal Government, but to the State alone. to try Bushnell without a jury, or the offence It follows that the power to which this guardiancharged was that of selling game out of season, ship is intrusted, must, as an indispensable conare we to be told that simply because in doing dition of its exercise, have the right to inquire this the Judge claimed to act under Federal into and determine for itself the validity of any authority we are bound to shut our eyes to authority which assumes within its limits to dethis usurpation of power; that the sentence is prive the citizen of that natural right of freean estoppel concluding all inquiry save on a writ dom, for the security of which it has pledged its of error to review it? Looking, then, only at most solemn faith. Chief, and most efficient of the general principle applied daily to the most all the instrumentalities by which the State assolemn adjudications of every tribunal, this serts its sovereignty, and exercises this duty of Court must inquire and determine for itself protection, is the great writ of habeas corpus, whether Judge Willson had jurisdiction to award universally called the great bulwark of freedom, the judgment under which these two citizens which has come down to us through many ages, are held in custody. and which, issuing always in the name of the But again; the right of the State to inquire sovereign, was specially designed to inquire by into the validity of any authority imposing re- what authority any person was restrained of his straint upon its citizens as against every power, liberty, and to deliver from all unlawful imprisbe it State, national, or foreign, stands on an onment. This was the sole office of the writ even firmer basis, for it results from the very when the Constitution was framed, and when nature of sovereignty itself. The first and chief its makers as if apprehensive that possibly characteristic of all sovereignty is its right to authority to suspend it might be inferred from the allegiance and service of its citizens; a right some grant of power to the Federal Government fundamental to all other rights of a State, for on commandingly declared that its privileges this its very existence in war or peace continu- should never be suspended except in cases of ally depends. Correlative to, or rather compre-rebellion or invasion. This emphatic prohibihended in this right, is the power to remove any unlawful restraint enforced against its citizens, to the twofold end that the State may not be improperly deprived of his services, and that it may efficiently discharge that supreme and imprescriptible duty of protection, which, as a re- Since, then, the power to inquire into all imturn for his allegiance every State owes to its prisonments belonged originally and necessarily citizens. On these two principles, allegiance to to the States; since it has never been and the State, protection to the citizen, rests not mere-never could be surrendered; since the constily all sovereignty, but the very social compact tutions, State and Federal, alike declare that it itself. Any nation which has wholly surren- shall not be suspended, I submit to your Honors dered the allegiance of its citizens or its cor-that there is no power in either Government to relative incidental right to protect them while abridge the right of the State to inquire into within its territorial limits, has in that very act the validity of every authority, Federal, State, abnegated every attribute of sovereignty and or Foreign, which assumes to restrain its citibecome the mere local dependency of the power zens. to which that allegiance and right has been sur- Again, if it please your Honors, the right of rendered. But Ohio, thank God, is still a sov- the States to inquire into the validity of every ereign State, and has therefore never yielded imprisonment of persons held under Federal this right, as she never could yield it, and still authority has been constantly asserted and expreserve her sovereignty, to the Federal, or any ercised by every State since the organization of other government. In all the Constitution, I the Government. Persons arrested for alleged find no such grant. I find nothing prohibiting offences against the United States have been its continued residence with the States. In a frequently discharged, and you can hardly few carefully guarded, and specifically enumer- open a New York paper without finding cases ated instances, the State has delegated to the where the State Courts have discharged solFederal Government power to punish; and hasdiers or mariners, held in custody by virtue of

tion speaks alike to every department of that Government—judicial as well as legislative and executive. Not only this, but the Constitution of this State has thrown around this writ in like terms the same absolute immunity.

an enlistment under Federal laws. Metzger, though arrested under a warrant of extradition, issued by the President in supposed conformity with treaty stipulations, and though a Judge of the Federal Courts (Betts) had held the warrant to be valid, was discharged by the State Courts of New York; and still more recently this Court, in the case of Collier, has affirmed its undoubted power to discharge persons held under color of Federal authority.

The right, then, of the State to issue this writ, stands on grounds as firm as the earth itself. When it goes forth, let all men know that it is the State, exercising the highest of all its attributes, which sends out its great prerogative writ, inquiring into the condition and restraint of its citizens, that no man to whom it is directed, be he Marshal or Chief Justice, King, Kaiser, or President, may omit to give heed to its peremptory behest, that no power on earth can absolve him from obedience to it, or shield him from the consequences of disobedience.

Taking it, then, as established that your Honors exercising the SUPREME JUDICIAL POWER of the State, have the right to inquire into and determine the validity of every pretext under which the citizen is held in custody - I next proceed to ascertain the nature and authority of that adjudication upon which the sheriff of Cuyahoga county assumes to restrain these two citizens of their freedom.

Bushnell's conviction rests upon an indictment containing a single count, which, in substance, charges him with obstructing the master of the alleged fugitive, without any process or color of process in the exercise of the right alleged to belong to the master by the Federal Constitution, of seizing his runaway slave wherever he may find him, and taking him back by force to the State from which he escaped. Langston's conviction rests on an indictment containing two counts, the first of which is precisely similar to the single count in Bushnell's indictment; while the second charges, in substance, that Langston had obstructed a Deputy-Marshal of the United States, in the execution of a Commissioner's warrant, issued to him and held by him, commanding the arrest of John, an alleged fugitive from service.

These indictments are each founded on the Act of Congress known as the Fugitive Slave Act; the provisions of which, it is therefore necessary now briefly to examine.

[Mr. Wolcott here stated the effect of each of the sections of the act, which being generally known, are here omitted, and then proceeded.] From this analysis of the provisions of the Act, as it has been construed by the decisions hereafter to be adverted to, it results that any man may come into one of the free States, and upon his mere claim that one of its apparently undoubted citizens, resident here during many years, is his slave, or owes him service or labor,

drag that citizen beyond the limits of the State of his residence, and that no one may interfere with this forcible capture, even to ascertain the validity of the claim so made, except on pain of fine and imprisonment, if it shall ultimately turn out that the captured citizen, though born in a free State, and originally free, was once arrested in a slave State upon suspicion of being a slave, and finally, no claimant appearing for him, was sold into perpetual slavery to pay the costs of that very arrest and detention. Bad as this is, it is not all. This Act has a depth of atrocity which no plummet shall ever sound. It provides a safer remedy for the man-stealer. If he do not choose to risk the private caption, he may obtain a warrant of arrest from a Federal Commissioner, seize the alleged fugitive, take him before the Commissioner, who is to hear the case in a summary manner, on such ex parte affidavits or depositions as may be produced, and if these satisfy him of the existence of the claim made against the fugitive, he is to issue his certificate thereof, which is made conclusive evidence of the claimant's right to remove, and confers upon him absolute authority to make that removal; and upon his mere oath that he fears a rescue, the Marshal himself is to return the alleged fugitive, and may, if needful to accomplish that end, call to his aid the whole naval and military force of the United States. But even this is not the worst. The intending kidnapper may go before some Judge of the most distant State, and upon ex parte evidence, perhaps his own alone, obtain a record reciting the fact of some alleged slave's escape a record which shall absolutely foreclose the questions of slavery and of escape therefrom, "with a general description, of such convenient certainty as may be," of the alleged fugitive, and, under it, seize any man who corresponds to this description, drag him before any Circuit Judge of that circuit, though resident in another State, and then upon mere proof of the captive's identity with this " general description of convenient certainty," obtain a warrant for the removal of the free citizen to the State from which the ex parte record asserts he escaped (to be enforced with the whole power of the Federal Government), and there retain him in perpetual bondage. Not only may no man, even by a resort to judicial process, attempt to inquire into the lawfulness of the taking, but no tribunal, State or Federal, may, either by the writ of habeas corpus or otherwise, molest the claimant in the exercise of this power, for the prohibition of the eighth section is without limitation, and includes all officers and courts, State and Federal. Indeed, the Supreme Court of the United States, in its recent opinion in the Booth case, has declared that the allowance of the writ in such a case would be an act of "lawless violence." The citizen is thus not only without the means of protecting himself, but any endeavor to detain him long enough to ascertain the validity of his