vided for the surrender of fugitives from service in other cases than that mentioned in the Constitution; that while the provision of the Constitution was only for the delivering up of fugitives "held to labor in one State under the laws thereof," the act provides for the surrender of fugitives "held to service or labor in any State," merely. The act was as general in its terms as any law upon the statute book, and its provisions were applicable to all other general laws,

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missible to ascertain the meaning. 2d. Where the words are not plain and clear, but the meaning ambiguous or uncertain, is the only case where interpretation is allowable; that contemporaneous history, or interpretation, can only be resorted to, to escape some absurd consequence, or guard against some fatal evil, etc. He insisted that the meaning of the clause, "No person held to service or labor," etc., under which the power to legislate was claimed for Congress, was neither uncertain or doubt-to every person within the State. It was, thereful; and that the maxim, "It is not allowable fore, not only unconstitutional, in that it was ento interpret what has no need of interpretation," acted without power, and in authorizing unreaought to apply; that the clause was a naked sonable seizures, and in cases not provided for compact, the same as the two preceding clauses, by the Constitution, withholding due process which, while standing in the Articles of Confede-law, and denying a right of trial by jury, etc., ration, had been named and regarded as mere but was, in its provisions, a flagrant subversion compacts. He urged that power to Congress of the municipal laws of the States for the probeing expressed in section first and section third tection of the personal rights of their citizens. of article four, and not expressed in section In determining the constitutionality of the fugisecond, the maxim expressio unius, etc., applied tive law under consideration, and upon which with double force. He insisted that the plain the conviction and sentence rest, the act is to and obvious sense of the clause was simply a be regarded as one equally applicable to any treaty stipulation, the same as the one providing free citizen of the State against whom a claim that The citizens of each State shall be entitled for service may be preferred by the provisions to all privileges and immunities of citizens of the thereof. several States," and was never intended, and could not have been understood, to be a cession of powers to Congress to legislate. He denied that contemporaneous history was admissible, inasmuch as the people adopted the Constitution, not upon history which was not submitted to them, but upon the letter of the text which was; and when submitted to them, they must be presumed to have read and understood it according to its obvious meaning.

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Referring, however, to contemporaneous history, he showed very clearly that nothing could be gained from that source, even if allowable to refer to it, to show that it was either understood or intended that power should be delegated to Congress to legislate in relation to fugitives from service. The Fugitive law of 1793 was passed for the proposed object of reclaiming fugitives from justice, with very little attention given to the bill at the time, that the question of power was not considered. But the States, on the other hand, claimed and exercised the power of legislating upon the same subject; and the States continued to legislate upon the subject until the decision of the Prigg case in 1842.

He then remarked upon objectionable features of the Fugitive Law of 1850; the commissioners were vested with judicial powers unconstitutionally. By the provisions of the law the right of trial by jury and due process of law were denied in violation of express provisions of the Constitution; that the provisions of the Constitution guaranteeing these rights, being contained in the amendments of the Constitution, they must have full force, however they may qualify the right of the claimant to a summary removal of the person owing service. He remarked that the Fugitive Law of 1850 pro

He referred to the various judicial opinions expressed, some incidentally, and others directly in favor of the authority of Congress to legis late upon the subject of fugitives. The case of Prigg v. Pennsylvania (16 Peters, 539), is the only case relied upon in which the Supreme Court of the United States has ever attempted to offer any reason for the claim of power in Congress on the subject. The question was not then necessarily before the Court for decision; their opinion expressed in that case was, therefore, necessarily, only an obiter dictum; and though expressed in favor of the power, it was only by an acknowledged disregard of the general rules of construction, applicable to the Constitution, and upon a mistaken statement of contemporaneous history and this, too, when reference to contemporaneous history was not admissible, even if correctly stated. The Van Zandt case (5th Howard, 229) was only a reaffirmance of the former opinion; as is the opinion recently pronounced in the case of the United States v. Booth.

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He also referred to the contrary opinions as maintained and expressed by Mr. Jefferson and Mr. Madison, in their resolutions of 1798, introduced into the legislatures of Virginia and Kentucky, in relation to the power of Congress to pass an act concerning aliens." He also referred to the opinions of Chancellor Walworth, Chief Justice Hornblower, Judge Baldwin, and Mr. Webster, maintaining that Congress had no power to pass a fugitive law, insisting that the power belonged, under the Constitution, to the States alone to legislate upon the subject.

Speaking of the previous decisions of the Supreme Court upon the subject, and the relations of the State Judiciary to the Federal, he

insisted that the State and Federal Judiciaries convicted and imprisoned, that, in his judgment, were each, by the Constitution, left independent, they ought to be forthwith discharged.

and ought to act with perfect independence; that it was not only the right but the duty of the Supreme Court of the State-in a case clearly of importance to the State or its citizens, sufficient to justify such a course, and under circumstances which would dictate such exercise of their discretion-not to suffer a question to be settled, as to any case coming before them, against their clear convictions of the constitutional rights of the State, or its citizens.

The petition of the relator from Cincinnati was dismissed, as the return showed that the proceedings against him in the United States Court were still pending and undetermined. The case was similar to the first application in behalf of Mr. Bushnell.

The opinions were scarcely read, be

He urged that they would not suffer them-fore Marshal JOHNSON and District-Attorney selves to be thus governed by any adjudication BELDEN called upon Sheriff WIGHTMAN to made by the Federal Court in another case. This say, that, as, according to the Booth decision, was not judicial insubordination, but the judicial all interference of State Courts with United independence contemplated by the Constitution of the United States, and which he believed it States prisoners, by habeas corpus or otherwise, the duty of the Supreme Court of the State to was unwarrantable and illegal; the journey of exercise in this and all similar cases. It was the Bushnell and Langston to Columbus was cononly position, in his judgment, peacefully and structive escape from jail, and he must therewith due respect towards the Federal Judiciary, fore add six days each to their sentences, to to maintain the independent State sovereignty contemplated by the framers of the Federal Gov-compensate for the time they had been "at ernment, and to avoid an unconditional surren-large" before the Supreme Court. der of the constitutional powers belonging to the States whenever usurped by the Federal Gov

ernment.

Entertaining these views, he added, and, after carefully examining the Constitution and the Act of Congress in question, with the aid of all the reasons and light afforded by the various opinions and authorities referred to, having no reasonable doubt of the unconstitutionality of the act upon which the prisoners had been

The Sheriff being otherwise advised by his counsel, and assured that such conduct would render him liable for false imprisonment as well as for "constructive" contempt of the Supreme Court, declined obedience to this order, and discharged Langston on the following Wednesday, twenty days having elapsed since the date of his sentence.

CHAPTER FIFTH.

IN gratifying contrast with the charge of Judge Willson to the Grand Jury that indicted the Rescuers, we place on record here, as introductory to the

INDICTMENT AND ARREST OF THE

KIDNAPPERS,

this State; or to attempt to kidnap or forcibly or fraudulently carry off or decoy out of this State, any such free black or mulatto with the intention of having such person carried out of this State, unless in pursuance of the laws thereof.

It also (Sec. 2), makes it an indictable misdemeanor, to kidnap or forcibly or fraudulently the manly charge of Judge Carpenter to the carry off or decoy out of this State any black Lorain County Grand Jury.

CHARGE OF JUDGE CARPENTER.

Gentlemen of the Grand Jury: — Your Prosecuting Attorney, as a very pertinent part of his duty, has requested me to call your attention to the acts to prevent kidnapping. There is a statute against kidnapping white persons. Its provisions are plain and I need only men

tion it.

The Statute passed April 17, 1857, Sec. 1, makes it an indictable misdemeanor, to arrest and imprison or kidnap, or decoy out of this State, any free black or mulatto person, within

or mulatto, within this State, claimed as a fugitive from service or labor; or, to attempt to kidnap or forcibly or fraudulently carry off or decoy out of this State, any such black or mulatto, without first taking such black or mulatto before the court, judge, or commissioner of the proper circuit, district, or county having jurisdiction, according to the laws of the United States in cases of persons held to service or labor in any State, escaping into this State, and there, according to the laws of the United States, establishing by proof the claimant's property in such person.

It will be seen that this statute contemplates

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two classes of blacks and mulattoes, the free State, and stop there. For, giving to the Conand the not free: that the first section pro-stitution of the United States the loosest convides for the protection of free blacks and mu- struction, the utmost latitude for slavery, which lattoes, and that the second section provides, has ever been given it by any authoritative first, for the security of the public peace against decision, the only possible case of a legal liabil all provocation to break it in revenge, or pre- ity to be arrested and returned into slavery vention of any abduction from this State of any from within the boundary of Ohio, is that of a black or mulatto not yet legally proved to be a fugitive slave escaping out of a slave State into slave and, secondly, for the protection of all Ohio. He must come into Ohio in the act of free blacks and mulattoes in this State, against escaping a fugitive, — and this fugitive charthe hopelessness of proving their freedom in acter must belong to him at the moment he enanother State, where complexion is presump-ters the confines of Ohio, or he leaves the status tive of their legal enslavement, and against of a slave where he leaves the slave State. For, the hopelessness of any immunity to them from force, in a State where the legal status claimed against them, has its origin and maintenance, not in the law of nature, but in force alone.

The misdemeanor here defined, then, is the claiming of any black or mulatto, within Ohio, whether free or not free, to be a fugitive from service or labor, and the getting, or attempting to get him out of Ohio before such claim has been legally proved, with intent to enforce such claim. The gist of the offence is the getting, or attempting to get him out of the State before he is proved to be a fugitive slave, with intent to hold him as such.

The Constitution of Ohio inhibits slavery, and regards all persons as free except criminals. No doubt, however, the legislative intendment of the second section of this statute refers to slavery as the condition of certain persons in other States, and as the possible condition of such persons in Ohio, for the purpose of recaption and return only, in case of their escape from that condition in another State into this.

This, being a criminal statute, must be construed somewhat strictly against the State. Passing over the question, then (upon which much might be pertinently and strongly said), whether any person in Ohio, not charged with crime, can be legally otherwise than free, we must give to any one indicted under this statute, the benefits of this strict construction.

But this statute recognizing the possibility of finding a fugitive in Ohio liable to be seized and returned into slavery, it may become important in your inquest, to know when there arises a legal presumption of this liability, and what are the legal presumptions to the contrary. Who, then, is presumed to be free? Everybody. Every man, woman, and child, in Ohio, of whatever birth, descent, parentage, complexion, or conformation, is presumed in law to be free. Whoever interferes with this freedom is presumed to do it in violation of law. Whoever is charged with such interference must deny the charge, or show his authority for the interference, or be held guilty. If the interference is proved against him, the legal presumption then is, that he has violated the law; and it devolves on him to show his right to interfere.

It would not change this presumption, to show that the prisoner had been a slave in a slave

by the decisions of all civilized nations, slavery is against natural rights, and can exist only by positive law. This, until very recently, has been the authoritative doctrine of our slaveholding States, as well as of all others. Slavery, then, being against the law of nature, and existing only by positive local law, it is clear that this positive local law cannot extend beyond the jurisdiction of the power which makes it. It is equally clear, that the right of this local law to hold a slave cannot go farther than this law can go itself; that the slave, having a natural right to freedom, and being held a slave only by a local law which violates that right, the moment he is beyond the arm of that local law, his natural right to freedom resumes its empire. The instant, therefore, the slave, by any means not as a fugitive, crosses our boundary, he is baptized in the air of freedom; and that baptism is irrevocable.

The law of Kentucky cannot of itself reach into Ohio. The Constitution of the United States, according to the construction adopted by this statute, extends the slave law of Kentucky into Ohio, for the sole purpose of recaption and return in case of the slave's escape into Ohio, and only in such case and that too, with such executory modifications as the State of Ohio has found it prudent to enact for the safeguard of its own citizens. But, that A is admitted to have been a slave yesterday in Kentucky and is found to-day in Ohio, raises no presumption that he came into Ohio by an illegal escape. Whatever a man does which in himself is not unlawful, the law presumes him to do innocently. We cannot, therefore, legally presume because he was yesterday a slave in Kentucky, and to-day is in Ohio, that he came here in violation of law- even of the slave law. The legal presumption is rather that he came here, as lawfully he might, by consent of his master. Or, if that presumption should be rebutted by evidence, then the legal presumption would be that he came here by the act of God by the winds or the waves, in spite of himself unless there were some evidence pointing to a different conclusion. For, I cannot hold the mere facts that a man was a prisoner in Kentucky yesterday, and is at large in Ohio to-day, to be any evidence that his enlargement is illegal,

Certainly, the slave's coming here by the act

The second section of this statute, as before | nine days, when I brought them before the stated, provides for the case of one claimed as Court as within I am commanded. a fugitive from service or labor, and prohibits any attempt to get him out of the State, except as prescribed by the laws of the United States.