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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 6 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 ious grew calm; half-cleaned weapons were the wall; for it “was high time that OBERLIN, thrown aside, and nobody was surprised to the strong-hold and hotbed of Abolitionism and learn that the Marshal had “ compromised” by REPUBLICANISM was SUBDUED.” If this had threatening to serve a “WRITTEN NOTICE not come time after time direct from the au- the Sheriff not to move the men out of jail; thorities themselves, it would indeed be unpar- and added that, if he did, - let the reader be donable to publish it.
calm and ready for the worst, - he, Marshal
Matthew Johnson, should positively - let the THE SECOND APPLICATION for HABEAS
reader take breath and compose himself CORPUS was made in behalf of the two who
so he said
clo what? had been sentenced, to Judge Scott, of the Supreme Bench, on the 17th of May. As in why, he should PosITIVELY take the same train
to Columbus ! duty bound, he immediately issued the writ,
Did he ? returnable before the Full Bench, and then
Of course not. telegraphed to his brethren who were just dis
He went the night before ! persed to their several circuits, requesting And so the Union was once more saved. them to sit with him in Special Session. As Here is the notice: the recent assaults made upon this great bul
U. S. MARSHAL'S OFFICE, Northern Dist. of wark of Freedom have awakened much inqui
Ohio, Cleveland, May 24, 1859., ry in regard to it, we are sure of gratifying the To David L. WIGHTMAN, Esq., Sheriff of Cuyahoga
. reader by presenting him the form of the writ.
Sir, — I am in receipt of your letter of the The State of Ohio:
19th instant, in which you state you have writs To David L. Wightman, Sheriff of Cuyahoga of habeas corpus commanding you to have
Simeon Bushnell and Charles Langston before We command you that the body of Charles | the Judges of the Supreme Court of Ohio, at Langston, -- in your custody detained, as it is their court room in Columbus, on Wednesday, said, together with the day and cause of his the 25th day of May, 1859, at 10 o'clock, 4. M., caption and detention ; hy whatsoever name the with the cause of their imprisonment, and you said Charles Langston may be known or called, also state that you will obey said writs of habeas you safely have before the Judges of our
corpus. Supreme Court, at their court room in the City
The Supreme Court of the United States of Columbus
, on Wednesday, the 25th day of having decided that the State Courts have no May, instant, at ten o'clock in the morning, to power to discharge persons imprisoned under do and receive all and singular those things process of the United States Courts, for violawhich the said Judges shall then and there con- tion of the laws of Congress, and it being clearly sider of him, in this behalf; and have you then
your duty to return in answer to the writs, the there this writ. Witness James H. Smith, Clerk of
cause of the detention of the prisoners, withour said Supreme Court, at the out producing their persons, I hereby protest (Seal.)
to be City of Columbus, this 17th day of moved from the Jail of Cuyahoga Co., the said May, A. D. 1859.
Simeon Bushnell and Charles Langston until JAS. H. SMITH, Clerk S. C.
the 'expiration of the sentence for which they By H. S. Miller, Dep.
are respectively imprisoned. Many threats had been made that the Mar
Yours, respectfully, shal would adhere to the plain path of his duty
U. S. Marshal of the Northern Dist. of Ohio. as marked out in the Booth decision, and repeated by special autograph instructions from
Supreme Court of Ohio,
Columbus, May 25th, 1859, 10 A. M. Attorney-General Black, and see that under no circumstances. was the order of the Supreme Charles Langston,
Simeon Bushnell, and Court obeyed in the production of the bodies
Habeas Corpus. of the relators before its bar. The Marshal's David L. Wightman,
ARGUMENT FOR THE RELATORS.
your Honors, that in approaching this grave:
claimed, that we are completely hedged in, or Mr. A. G. RIDDLE:
walled out, from the consideration of it by the
adjudications of the Supreme Court of the May it please the Court:
United States. This is a proceeding before the Judges of the But, your Honors, with all due respect to Supreme Court at Chambers, yet I recognize that high tribunal, I suppose it will not be conthe presence of the Court.
tended that a decision of the Supreme Court of The relators by affidavit informed the Court the United States can impart any Constitutionthat at the date of their application they were al vitality to an act of Congress which that act imprisoned in the jail of Cuyahoga County, by intrinsically, and in the first instance, does not the Sheriff of said County, without legal au- possess. In other words, such a decision canthority; and thereupon one of your Honors not make an unconstitutional act a constitutionissued the writ of habeas corpus, commanding al law. The utmost that can be claimed is the sheriff to produce the bodies of the appli- that it precludes parties from farther inquiry cants before you to-day, and show why he de- acts as a sort of judicial estoppel, concluding tained them. The sheriff returns these writs the question. It will not be my purpose in the
ith the persons of the applicants, and appends few remarks in the way of the opening argument to his return as a part of it, and in addition to which I shall have occasion to submit to your the statement that he held them under the mit- Honors, to enter to any considerable extent intimus of the U. S. District and Circuit Court, to any criticism or analysis of these decisions. a certified copy of the Journal entry and an That duty will fall more properly within the exemplification of the records, by which it ap- labors of my associate. I shall barely refer to pears that they were imprisoned by that sheriff, them, and possibly make a passing remark in pursuant to an alleged final judgment,--award- reference to one or two of them. I believe the ing that as punishment of the U. S. District leading one of them referred to and relied on as Court for the Northern District of Ohio.
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 I do not know, but it will be sought to add to which and under which it is said that these pro- these, what is known as the Boothe case, receedings were had, is no law. We say that cently said to have been decided by the Suthat alleged law is not law:-
preme Court of the United States, on a writ of First; because the Congress of the United error to the Supreme Court of Wisconsin. But States under the Constitution thereof had no I do not know as that has been given to the power to legislate upon that subject-matter. courts in such a form that it can be treated by
Second; that the Congress of the United the Courts as authority. I think the Supreme States under that Constitution had no power Court of Ohio will hardly find itself called to pass such a law-or such an act, as the one upon to resort to the columns of newspapers, upon which these proceedings were based. however veracious they may be, for authority.
Third ; that under that law this record Res adjudicata can hardly be claimed to reside charges no crime. Fourth; that that claimed law is in contra- And first of the Prigg case.
And while I vention of the provisions of the Ordinance of would approach this with due respect, I would 1787, which is of antecedent and paramount yield it no more deference than I would authority.
the decisions of this high tribunal in whose presIt was not the fortune of either the Attorney-ence I stand. General with whom it is my good fortune to be This is the case cited as settling the question associated in this case, or of myself
, to hear the of the power of Congress to legislate upon the arguments recently submitted to your Honors, reclamation of fugitive slaves; but it will be upon a prior application by these relators for found when this case is fairly analyzed, it covrelief, while the proceedings in the U. S. Courters no such ground. were still pending. For myself, I wish merely It is difficult for the legal mind to see how to add, that if it shall be found that I do not that question could have been properly before follow the same course of argument, it is not that Court, so that its passing upon it is to be because I seek in the slightest degree to waive taken as an adjudication, in the judicial sense of the positions, then taken; and if I should that expression. A party - Prigg was proschance to offer some of the same arguments, I ecuted under the State law of Pennsylvania hope not to be altogether amenable to the for kidnapping, convicted, and sentenced to charge of tautology. I am perfectly aware, 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 And, if not irreverent, it seems to me that | parcel of the nature of such things as States, that case is amenable to just criticisms of quite that when the question of State sovereignty; as another sort. That court commences with between itself and its citizens, is broached, this all veneration be it said — by establishing new tribunal is the exclusive court of the last resort rules of interpreting the Constitution, and it and is not bound, and cannot be bound by the winds up that singular process by saying that decisions of any other tribunal whatsoever; no uniform rule will apply to the whole instru- unless you lay the whole sovereignty of the ment, but that each provision must dictate its State at the foot of that foreign jurisdicspecial rule of construction!
tion. It is alarming, indeed, when we find that I press this with modesty. Now we may say court in such a case recasting old definitions, of States as we say of individuals, that they or reconstructing old -- or manufacturing new have certain inalienable rights, with which they rules! It would certainly challenge fair criti- cannot part. That they have duties which they cism when we should find that no uniform rule owe to themselves, to their subjects, and to surcould be applied for the construction of the rounding States; that to the discharge of these Constitution of the U. S.! It would also seem duties it is absolutely essential that they should that that Court, or rather its judges, were obliged have, to a certain extent, inalienable rights. I to ward singly and alone the various and de- am not here to say but that they may have vious processes of argumentation by which a parted with some of these rights; if the people majority scatteringly arrived at the conclusions of the State have consented; but the presumpto which they finally gathered in. It is not tion must be that they are all retained intact, necessary now to inquire, whether any two of until it is proven otherwise. It is not true, them came to the same result by the same pro- your Honor, that the States have grown up
but it is shown that there was no place under the iron and inflexible rule of the Conupon the legal earth to be found where those stitution, and have only by sufferance been venerable pilgrims could all finally reunite, allowed to crop out in one direction, or grow except the point from which they started. I out in another, and have been choked and remark, then, in reference to this celebrated checked, whenever the Constitution did not case, that it does not involve the question to permit them to shoot upward. The States are which I now invite the attention of the Court, older than the Constitution, and in contemplato wit; the power of Congress to legislate in tion of law were all present at its formation, aid of the reclamation of fugitives from service without reference to chronology; and if they or labor. And I wish to say that even if it have parted with any rights it has been of their shall be found in the riper and better conclu- own choice, by their own freewill, in express sions of this Court to cover that ground, that by grants; their people assenting thereto; and a single decision of these questions we are not against them no presumptions or implications bound. For I say, in the second place, that, can prevail. But approaching more directly the passing as it does upon these great questions, Constitution itself, both for the purpose of ascerunder which lie great, original principles, the taining incidentally what the State of Ohio has utmost which ought to be claimed for it, is that to concede to it so far as its own sovereignty is that decision furnishes a rule for that case be- concerned ; and more particularly to inquire fore that Court; but not that it furnishes the 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.
vides for, and authorizes, and furnishes the Now, may I be permitted to say here, that the means of recapturing fugitive slaves, is not a Constitution is not made up entirely of com- law directly sustaining slavery. Before enterpromises, as the modern notion seems to be? ing upon this investigation I beg leave to call I certainly shall not attempt to seem to be to mind two or three so well-established propolearned, and undertake to make any new sitions, that they have become inflexible rules. schedule of the provisions of the Constitution. And first, Slavery is not national, but local. In All this is old and hard-beaten ground. But the face of solemn platforms, and in the teeth with reference to the compromises themselves of national politicians, I undertake to say, that we find that there was a compromise between slavery is not legally or constitutionally a nathe larger and the smaller States, resulting in tional institution; and hence, certainly the equality in the Senate; and also a compromise fostering protection of it, would not natuwith reference to slave representation ; and rally fall within the sphere of the duties of another with reference to the African slave the General Government. That it is a purely trade; - but beyond these, will some learned State local institution, and therefore all regulaman tell us of another? As to the much talked tion of it, must fall outside of the powers deleof third clause of the second section of the fourth gated to the General Government, and be left Article, that it is not, and that it never was in- entirely to individual States and lesser localitenderl to be a compromise - judicial falsifica- ties. tion of history to the contrary notwithstand- I remark, second, that slavery - I need ing - I undertake to say: That the clause con- not refer your Ilonors to authorities in support tains a compact, as do other clauses of the same of this proposition -- in the United States exsection, and other sections of the same article, i.sts wholly and exclusively, by virtue of posiI not only admit, but insist; but that there is tive law. Farther, that all presumptions are, any grant of power necessarily implied in the necessarily and essentially, adverse to its existnature of the compact, I emphatically deny: ence. It follows, then, that if slavery is to exIn this instrument the grants of power to the ist only by express authority, it cannot exist new Government must necessarily occupy a by implied authority; and if the presumptions prominent place, and as among them the power are against slavery, the presumptions are just to make treaties is also conferred, it was emi- as conclusively against the existence of a law nently proper that the same instrument which by virtue of which slavery would exist. If it conferred it should also provide for all such cannot exist by implication, you cannot imply treaties or compacts, among the States, as a far- the law, or the power to enact the law; and as seeing sagacity could then provide. And hence a converse of all this, all the presumptions are the compacts, and the fact that they are con- not only against slavery, but in favor of Freetained in the Constitution, no more confers on dom. Then, your Honors, if slavery can only Congress a power to legislate in reference to exist by positive law, and not by implication; them, to enforce them; or otherwise, than as if and if we must presume against the existence the States had assembled prior to the formation of slavery, and against the existence of any of that instrument, and had formally agreed law authorizing it; and of course against the upon and entered into them, and had made them existence of any power by which such a law perpetual.
could be enacted. We unroll the Constitution, In addition and as adjuncts to the grants with an absolute presumption that it does not enumerated, there are prohibitions, standing contain such a power, a presumption that can out in just as bold and broad relief all the way yield only to an express grant of it. along these grants, limiting their exercise on to inquire, then, whether there is in the Constithe one side; or prohibiting it altogether on the tution an express grant of power to Congress, other. Guarantees, no less important, perhaps, to legislate in favor of slavery ; or whether than the others, occupy just as prominent a po- there is an express grant for some necessary sition ; which provide for certain rights, and object or purpose; such that for its accomplishcertain privileges, of paramount importance — ment, such a grant in reference to slavery must standing pledges that they shall be protected. necessarily be carried with it.
Equal to all, yet occupying less space, your In considering this instrument, much valuable Honors, are found in this Constitution reserva- information may be gleaned from the history of tions. Thus wherever a grant of power is those times; as to what was the object and purmade, you find it surrounded and hedged in pose of the framers of it. But the historical with prohibitions, guarantees, and reservations, argument I leave entire to the Attorney-Genall of which are to be beaten down and anni- eral. hilated, before an usurpation can find place and In contemplating the Constitution itself, we toleration. With this outline, I am to approach find inscribed upon its portal the very objects of this instrument for the purpose of searching for its creation, to which alone it is solemnly dedia power, not only to legislate upon the subject cated; and under it is subscribed the names of of fugitive slaves, but to legislate in its favor. its framers, the time, place, and date of its For it cannot be contended that a power au- ' erection.
Hear that solemn inscription and ordination: 1 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 liverty to our- gress. Is that true, your Honors ? With all selves and our posterily; do ordain and establish deference to this famous decision, if this Constitution for the United States of that the legislative power of Congress is coexAmerica."
tensive with the judicial power of the Federal When we ponder upon this inscription, which Courts, then I ask what becomes of State aunot only makes the purposes of the creation of thority, legislative or judicial? For, in various the instrument itself known, and also makes ways, all conceivable questions of right can be this solemn dedication of it to these purposes, brought before the Federal judiciary, and has and when we find named among the very first Congress so boundless a range of legislative of these objects, -" to establish justice” and power as that?
secure the blessings of liberty to ourselves Otherwise, I submit that the proposition is and our posterity," it seems perfectly hopeless not true. If the legislative power granted to to expect to find any thing within authorizing Congress, be coextensive with the power vested and protecting an institution annihilating lib- in the national judiciary, then it must follow, erty and rendering justice impossible.
that every inatter, which falls within the jurisdicHaving passed within the Constitution, and tion of the Courts, by necessity falls within the bringing with us the rules already mentioned, legislative power of Congress, which absolu ly and in the strong light that flashes all over it cannot be true! For then if a party in Kenfrom the preamble, I wish to add the solemn tucky brings a suit upon a promissory note for weight of the tenth amendment — “ The pow- $500, against a citizen of Ohio, in the Federal ers not delegated to the United States by the Courts as he may do, Congress would necessaConstitution, nor prohibited by it to the States, rily have the power to legislate upon it, as are reserved to the States respectively, or to upon all other possible matters which might the people.”
constitute a judicial claim under the ConstiThus, then, under these conditions, and with tution,” which is an annihilation of the States. these lights, we must find an express grant of Yet this is the doctrine which the Court power or a grant of a subject-matter, carrying in that case unqualifiedly and in express terms with it the grant of power; and that without lays down. And thus I do not find a thing the aid of any implication. Now I take it that which I certainly was not very anxiously lookno one has ever yet found this power in any ing for- I cannot find in these grants of power, portion of the first article of the Constitution. that either directly or indirectly, by express In all those special grants it nowhere exists, grants of power or by grants of subjectopenly or covertly. It neither lurks under matter, that this instrument thus far conveys one, nor is appended to the skirts of another. any power to Congress to legislate in reference And if your Honors will turn yoưr attention to to fugitive slaves. I pass to the fourth article. the last clause of the eighth section, which is a This article seems to contain provisions with general grant of such powers as are contained reference to certain compacts between the in it, to wit, “ to make all laws which shall be. States as individual States; guarantees them necessary and proper for carrying into
for carrying into execu- certain rights, and provides for the governtion the foregoing powers and all other powers ment of the territories, etc.
not compacts, guaranties, injunctions, or res- Section first is as follows: ervations “ vested by this Constitution in the “ Full faith and credit shall be given in each Government of the United States, or any de- State to the public acts, records, and judicial partment or officer thereof”-it is no more to proceedings of every other State. And Conbe found there. Certainly it never has been gress may, by general laws, prescribe the contended, except in a single instance, and, I manner in which such acts, records, and protrust, never will be again, that there has been ceedings shall be proved, and the effect conferred upon any department of the General thereof." Government, any power over or in reference If your Honors will turn back to the articles to slavery, and we have already seen that no of Confederation, you will find the first part of power not specially granted can be held to ex- this, which is a compact merely, to be almost
But it is said in the Prigg case, that the a literal transcript of the last clause of the warrant for legislation on this subject arises fourth article of the Confederation. from the necessity which results from a certain As it existed there it was taken to be and combination of circumstances. I understand was a naked compact, conferring no particle of Mr. Justice Story to say that the power is power to legislate for its enforcement, and was found in a just construction of all the bearings never supposed to confer any. This last clause of this much talked of second section of the of the fourth article of the articles of Confedefourth article. It is established so far as it can ration, now makes the first section of the fourth be by the opinion of that Court, that the claim | article of the Constitution. Ten years it stood,