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the last clause of the fourth of the Confede- | ly had in the articles of Confederation and the ration, uncoupled with any power; whence it Ordinance of '87, and both alike, in both places, was taken, and promoted to the first section are uncoupled with any grant of power whatof the fourth article of the Constitution. And ever. This Ordinance of ’87 was, I believe, the not only that, but when it is transferred there first declaration of law or compact, in which iis coupled with it an express grant of power, the people of the United States, as a nation, because the framers of the Constitution knew had embodied and set forth a provision for the

as everybody knows, that without an ex- rendition of fugitives from service, and this press grant, there could be no power; and clause there stood uncoupled with any grant of the experience under the Confederation, had power to Congress. It is true, that the lapse of demonstrated the necessity for a proper en- time between that Ordinance and the Constituforcement of this provision, and hence the tion was not so great as to afford the States any power was granted.

considerable experience of its workings, but it The second clause, of the second section, of is none the less true that it was transferred article fourth, is a condensed form of the pro- without the expression of any serious desire for visions of the first clause, of the fourth article, its amendment, or the addition of a grant of of the articles of Confederation, which read, power; it was transferred to the Constitution, “ The better to secure a perpetual friendship,” and there embodied without material change, to etc. (See 4th Art. Const.)

the entire satisfaction of all the members of the Standing in that place in the fourth article, Convention, and the people of the States, where when the framers of the Constitution came to it reposes in its own original force; and not im" make up their jewels,” and incorporated it into plying, because not expressly declaring, the their structure, they gave it the place of the power of Congress to enforce its provisions by first clause, in the second section, of the fourth legislation. article. But there is no grant of power attach- Transferring it, then, as they did, and leaved to it, in the transfer, as in the case of the ing it uncoupled with any grant of power, the first section of this article. And I claim that conclusion is irresistible that it— like its two since, as a matter of historical verity, the neces- predecessors in the same section - is to be sities arising under the provisions of that clause treated as a simple compact, conferring no more are sufficient to have invoked that power into power upon Congress, and calling Federal leglife, if it is supposed to have slumbered within islation no more to its aid, than any compact the folds of that purview. And yet no one has outside the Constitution. And when it is recontended, that I am aware of, that there is any membered that the first section of this fourth power in Congress to legislate for the purpose article has an express power appended, and of enforcing that solemn compact, --- it stands when we see that the succeeding third section in remarkable contrast with its fellow section, also contains a grant of power, which is omitwhich had long remained without a grant of ted from all the clauses of section second, the power, but when transferred into the Constitu- conclusion is perfectly irresistible that it was intion had such a grant appended to it, while this tended that no power should attend any of the remains without.

clauses of that second section. The second clause, of that second section, of I do not mean to contend, your Honors, that the fourth article, is the one in reference to the the contemporaneous construction of that arextradition of fugitives from justice. This is ticle is not manifest, to some extent, perhaps, in followed by the third and sorely contested the legislation which was ventured upon under clause, which treats of the return of fugitives it, by a Congress composed in part of the framfrom service, or labor.

ers of the Constitution itself; nor yet that such “No person held to service or labor in one construction is wholly valueless, but I am not State, under the laws thereof, escaping into an aware that the presumption drawn from the other, shall, in consequence of any law or reg- fact that a law was enacted, is any stronger in ulation therein, be discharged from such service reference to the action of the national legislaor labor, but shall be delivered up on claim of ture, than in reference to the acts of the legisthe party to whom such service or labor may be latures of the several States upon the same subdue."

ject. But if this be taken as a guide, the legisIn some respects, standing together and treat-|lation of the several States neutralizes, and ing of the extradition of certain classes of per- more than neutralizes any legislation of Consons --- in each case spoken of as persons gress. Take the act of Pennsylvania alone, these second and third clauses, of this second and then group about section, of the fourth article, are proper to be cluding the States of Ohio, Indiana, Illinois. compared, to see how far they may be taken to-It is known as an historical fact that the enactgether. As the third clause was taken from the ment of 1793 did not arise out of the necessiOrdinance of 1787, so was the second from the ties of any case which sprung up under this articles of Confederation; and as the third is clause of the Constitution. But a question not materially changed, neither is the second : arose between the executives of Pennsylvania both

preserve the same thoughts and the same and Virginia, in reference to the return of a fumeaning, in the Constitution, that they several- Igitive from justice, who had fled from Pennsyl

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vania to Virginia; and it is said that, in the warranted and unwarrantable perversions of course of that debate, the Governor of Virginia it. * doubted his power to deliver up the fugitive, This brings me to my second proposition. and the matter being communicated to Presi- We claim that if your Honors shall find, dent Washington, and by him transmitted to either looking at this instrument as it invites Congress in a message; for the purpose of set- your attention; or through the decisions of other tling this controversy, the legislative power of Courts, whose decisions you accept as binding; Congress was invoked, and the Act of 1793 that Congress has power delegated to it by the passed. It is certainly true, as I think, that Constitution to legislate upon the subject in both sections of this Act are equally unconsti- question; we still claim that Congress had no tutional, for I see no more authority conferred power to enact this particular law. upon Congress to legislate in reference to fugi- And first, they had not this power because tives from justice than in reference to fugitives this act violates the otherwise inviolable right of from service.

persons to personal liberty. It subjects a perThese two matters stand, in my judgment, as son to the actual manual caption of whoever mere naked compacts. There certainly is not, pretends to be his master. I need not stop here in either case, any grant of power, as ! submit to detain, much less to attempt to entertain this to your Honors, by the provisions of this instru- Court with that part of the legal argument which ment itself. one, whatever! I submit, so far 'pertains to this point; nor to call the attention as these two clauses are concerned, — and, pre- of the Court to the fact that slaves as slaves, are eminently, so far as the third is concerned, excluded from the Constitution by name.' Nor that the text nowhere, in any form, invests need I read to you the debates in reference to Congress with any power. It is not necessary this matter, which took place in the Convention here to inquire what the purpose and object of where the Constitution was framed, as well as its creation, so far as the means are concerned those which sprang up in the various State Conwere. It is sufficient for my purpose, and for ventions which were called to discuss and pass the purpose for which we stand before this upon the Constitution as it was offered to the Court, to


that if we go back to the original people. That the Constitution, if it treats of right meaning of this instrument - to which slaves at all, treats of them as persons, and we all shall go when we have the grace and hence confuses thein — if such a term may be courage - no one will contend, for a solitary used — with the great mass of other persons moment, that there lurks in it, anywhere, any within the States, I think cannot be disputed. grant of power to Congress to legislate upon I do not now recollect that there are more than the subject. None, -- absolutely none. By three allusions in the Constitution which are the very nature of it, such a grant is impossi- supposed to have reference to slaves. The first ble. The main force of this clause is spent in is in the third clause of the second section of the prohibition.

article first, which relates to the apportionment “No person held to service or labor in one of representation. The second is found in secState, under the laws thereof, escaping into tion ninth of article first, in reference to the another, shall, in consequence of any law or slave trade. The third, and I think the only regulation therein, be discharged from such ser- remaining one claimed, is found in this third vice or labor, but shall be delivered up on claim clause of the second section of article 4th. of the party to whom such service or labor may This matter has been passed upon by the be due.” It declares that the States shall not Supreme Court, in the case of Grous v. legislate adversely; and that, in my humble Slaughter, 15 Peters, where the Court, Judge judgment, is the whole force of it, and the latter McLean, giving the opinion, expressly decides part of it seems to explain the degree of the that the Constitution treats slaves as persons prohibition : --- so far are they prohibited from exclusively legislating adversely, that the fugitive not only If this be so, then not only is there nothing shall not be discharged from the obligation to in the Constitution which intimates what porserve, but he shall be delivered up. This is said tion of the people shall be treated as slaves, to impose a duty upon the Federal judiciary : but no Act of Congress might distinguish beand the sweeping argument in the Prigg case tween the persons who might be so classed is, that whatever falls within the jurisdiction of under it, and the great mass of other persons the Federal judiciary is within the legislative That is not attempted on the part of this purview of Congress, which I have already dis- statute. It provides that -PERSONS posed of. But it is clear enough that this en- sons owing service or labor, in one State and joins a duty upon the States alone, and upon no escaping into another, may be seized by manual department of the General Government. I am caption, and in this, we submit, it completely perfectly frank to say - if I may be permitted violates the provisions of the Constitution itself. so far to depart from the argument -- that, as a This cannot be tolerated. There is nothing citizen, I accept the Constitution with all its which designates the persons who may be seized, compacts and injunctions, and I stand here only but it arms every man who may choose to for the purpose of contending for the Constitu- assume to be the owner of another man, tion in its purity, and protesting against un-power by mere brute force, to seize him and

all per:

with drag him away from the protection of law. the decision in the Prigg case claims to settle Can it be claimed for a moment that the Con- the rule to the contrary, but your Honors are stitution confers power to enact such a law ? aware that I do not recognize that decision as In a free State the presumption is that every conclusive of these questions. I say, then, man is a freeman. Does this presumption that this statute reduces persons to things, and cease with the approach of one who claims to is thercfore no law. be the owner of a citizen ? Does it not go I claim further that this statute directly vioon up to the ultimate point where he is legally lates the fourth article of the Amendments to proven to be a fugitive, owing service or labor, the Constitution, which provides that, as claimed ? Now it is true that third parties “The right of the people to be secure in their are to take notice from acts and claims; the persons, houses, papers, and effects, against unclaim may be notice to them; but it does not reasonable searches and seizures, shall not be destroy the presumption of the law, that the violated, and no warrants shall issue but upon man claimed is a freeman.

I know that in probable cause, supported by oath or affirmathis same Prigg case, the Court undertake to tion, and particularly describing the place to be say that the title of the master to his slave, searched, and the person or things to be as it existed in Kentucky, is preserved intact seized.” in Ohio; but I submit with all deference, that Again

it is in express violation of article this is not and cannot be true. The decision of five. “No person shall be held to answer for a no court can carry the municipal laws of one capital, or otherwise infamous crime, unless on State into another, and say that when a slave a presentment or indictment of a grand jury, runs away, he wrenches from the statute book except in cases arising in the land or naval a portion of the law of the State from which forces, or in the militia, when in actual service he flees, and carries it with him, as a sort of in time of war or public danger; nor shall any legal halter upon which the master may seize, person be subject for the same offence to be and lead him back whence he came. Will it put twice in jeopardy of life or limb; nor shall be claimed that a man can sell and transfer hiz be compelled in any criminal case, to be witslave in Ohio? or that he may whip him for ness against himself; nor be deprived of life, libinsubordination to subclue him? Then slavery erty, or property, without due process of law; is actually an institution of Ohio! I say that nor shall private property be taken for public the instant a slave touches Ohio soil, he casts use without just compensation. his chains -- the whole exuvice of the slave from Now am I forced, your Honors, to stand here him, and becomes a freeman, but still owing and claim that a man cannot, by virtue of a service -- not morally, not by virtue of any mere power of attorney, or of his own unsupcontract, but by this curiously worded phrase ported claim of ownership, come here, and havof the Constitution-"owing service or labor;” ing already decided that a certain citizen of he brings with him this obligation as a dark Ohio is his slave - no matter what may be his stain, a horrid contingency, and through it color, lineage, or condition- be his own bailiff, may be seized as a PERSON but never as a magistrate, jury, and sheriff, and that such a deslave ---- and BY“DUE PROCESS OF LAW," this privation of a man of his liberty is not “DUE obligation being proven, may be delivered up PROCESS OF LAW ?" If so, there is no constituto his master, and again resubjugated to slavery tional guaranty for the personal security of a in the State from whence he escaped, but not man, woman, or child in Ohio. in Ohio. While here, for every other conceiv- As to what is due process of law, see 2 Kent's able purpose, he is wholly within the protection Com. p. 3. of our laws. This is the whole extent and I claim, in the second place, your Honors, force that this article of the Constitution that this act is void because it vests judicial permits. A slave cannot be claimed as prop- powers in certain commissioners, who are neierty, because nowhere in the Constitution of ther created, appointed, nor paid in accordance the United States, any more than in the Con- with the requirements of that part of the Constitution of Ohio, is any property in man stitution which defines the conditions upon recognized. The instant, therefore, that a which Federal officers may exercise judicial master in Ohio undertakes to deal with a fugi- functions. See article third. This question tive from his service as property, he is with will arise in the second count of the indictment out color of constitutional right, and should be set forth in the record of Langston's case. The dealt with as a criminal. A fugitive from ser- Government therein count upon a seizure of vice cannot be held as property, not only be- the alleged fugitive John, by virtue of a process cause property in man is not recognized in the issued by one of these U. S. Commissioners. Constitution, but because with property, and I claim, in the third instance, that this statute its incidents as such, the Federal Government is void because it not only authorizes the recaphas nothing to do, save in the very limited tion of a person by an alleged owner with or manner specified. Congress can, under any without one of these unconstitutional commiscircumstances, legislate upon slaves only as per- sioner's warrants, but authorizes the master to sons, even if it had full power to legislate in fix his status as being a slave and to return him aid of the provisions of this clause. "I know to endless bondage in violation of the seventh Amendment of the Constitution, which guaran- | 1850 provides also, following that construction, tees a trial by jury in all cases where the value that the owner, or his substituted agent, may of the matter in controversy amounts to twenty in like manner pursue and recapture;

- but dollars or upwards; and here we are not estop- for what purpose ? To return him? No:ped by the Prigg case. For the question was for the sole and solitary purpose of taking him not there made. Judge Story himself since before a U. S. Commissioner, to have in a declared that that question was not passed qualified manner his status judicially deterupon. (See his memoirs by his son, W. W. mined; - so that outside of that law the owner Story.)

may seize and return him ; but if he acts under Then we ask the discharge of these relators that law, neither he nor his agent can restore on the ground that the act; upon which all the him to his domicil, but he shall take him before proceedings against them are based, is uncon- a U. S. Commissioner, who shall first settle the stitutional and void; and we claim that it is un- question of status, and authorize the return. constitutional because Congress had no power When your Honors come to examine this recto enact any law upon the subject; and be- ord, you will find that the alleged fugitive John cause most emphatically it had no power to was sought to be seized, not outside of the law, enact a law like this; which in its several pro- but by virtue of a power of attorney, under the visions so flagitiously tramples upon the funda- law, - and there it stops. Now it is not suffimental rights of the citizen as guaranteed by cient for this indictment to allege that the fugithe Constitution in explicit terms.

tive was recaptured and held; it must go farAnd now I wish to call your Honor's atten- ther, and allege that he was to be taken before tion to one point more — my third general a commissioner, which it does not. Hence from proposition.

such a holding it was no crime to rescue him. I clain that even if your Honors should And therefore I repeat my claim, that these adjudge my previous positions unsound, and indictments are fatally defective under this law, shoald hold that Congress not only had power because they do not allege, that the fugitive to legislate in regard to fugitive slaves, and in said to have been rescued, was held to service aid of the master, but that' it had power to in the State of Kentucky, “ under the laws enart this particular law-so glaringly unjust thereof,” nor that he had been seized for the and unwarranted, as we have been accustomed purpose of taking him before a commissioner, to believe it to be; ---still

, in looking into this to establish his status. record your Honors will find no crime charged And lastly, I further claim that in the State under that law. The District Court of the of Ohio, and in reference to all slaves escaping United States for the Northern District of from the State of Kentucky, that law is inopeOhio, from which this record comes, being a rative. I claim this under the preexisting, and court of limited jurisdiction, we have nothing the still existing, and the paramount authority of to suppose in its favor, and if no crime under the Ordinance of 1787. I need not stop here to the act upon which the proceedings are claimed detail the provisions of that ordinance. But I reto be based is charged;_that Court had no mark that that Congress of the Confederation, jurisdiction of the case. Briefly on this point. representing the sovereignty of the nation, in First. It does not appear from that record, that whom the title of the North-west Territory vestthe alleged fugitive John, was held to service ed, had the power to make that ordinance. I in the State of Kentucky, " under the laws claim that it was, as it alleges to be, a compact thereof ;” and if he were not held to service in for all time to come. I am not here to claim accordance with the laws of the State from that by the full consent of all possible parties which he escaped, then he had a right to es- concerned, it might not be changed; but I do cape, and no one had a right to recapture claim that no such change, repeal, modification, him, and if any one did recapture him, no or amendment has been made. It was not reoffence could be committed in rescuing him pealed by the adoption of the Federal Constitufrom such custody. For the presumption will tion, nor by the admission of the State of Kennot be that he was so held to service, in the tucky in 1792, for the people of the North-west absence of such averment, but always the con- Territory were not parties to those acts, nor by trary, because presumptions are always in favor the Act of Congress authorizing Ohio to form a of liberty. I claim that the allegation that he constitution, for that required the new State to was held to service in the State of Kentucky, come in pursuant to the ordinance. And cer“ under the laws thereof,” is material, and its tainly the adoption of the State Constitution did omission fatal. 5 McLean, 460-469.

not repeal it, for that embodies the provisions Second. It is decided in the Prigg case, if of the ordinance in itself. When, where, how, that is to be taken as law, that in the absence and by whom have the terms of this grand old of any legislation whatever, the owner of a charter been set aside ? slave has a right, without the color of any I need not remind this Court, that in a process, to pursue, recapture, and return him solemn adjudication by this Court, it was deto the domicil of his master. That is a judi- cided that the provisions of that ordinance were cial construction of the provision of the Consti- in force. See 5 Ohio, 419, and also in the case tution. And indeed the Fugitive Slave Act of of Spooner vi McNeil

, 1 McLean, 349, this doc

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trine is solemnly reaffirmed, and his Honor, II. Where a Court has acquired prior jurisJudge McLean, takes judicial pains to dwell diction or possession of a subject of litigation, upon the perpetual and inviolable freedom thus a coördinate tribunal will in nowise interfere pledged to this soil, declaring that nothing short with the action of such court touching such of revolution can ever plant upon it in any subject. The tribunal which first acquires form the accursed institution of slavery. I do, jurisdiction holds. it to the end, and it is exclutherefore, stand here solemnly to contend, that, sive. 3 Ohio St. Rep. 105, Keating 2. Spink; under that ordinance, which limits in its very 16 Ohio Rep. 405, Merril v. Lake et al.; 9 terms the capture of slaves to those who escape Wheaton 532, Smith v. McIver; 20 Howard from some one of the original thirteen States, 594, Taylor et al. v. Carrol; 10 Peters 400, Congress had no power to authorize the recap- Hagan v. Lucas; 3 Peters 304, Harris v. tion in Ohio of fugitives from service in Ken- Dennie; 7 Howard 471, Peck v. Jennis; 8 tucky.

Howard 107, Williams v. Benedict; 17 HowAnd now, with this brief presentation of the ard 475, Pullian v. Osborne ; 6 McLean 365, points to which I have called attention, and Ex parte Robinson ; 4 East 523; 25 Eng. Ch. Teaving whole regions of argument untouched, Rep. 474; 3 Paige 199; 5. Id. 489; 7 Idem and leaving also all the grave and great con- 514; 9 Vesey 333; 1 Jacobs 572; 2 Sch. & siderations which gather about this case, and Lef. 229. strongly press for strong speech unuttered, I III. The judgment of the District Court is submit this weighty matter with all interests conclusive. It cannot be collaterally quesand consequences, to the decision of this High tioned. : 1 Ohio St. Rep. 233, Bank of Wooster Tribunal,

v. Stevens ; 3 Id. 494, Sheldon's Lessee v. The Court took a recess until half past 2, P. M.


" The power to hear and determine a cause FIRST DAY: — AFTERNOON SESSION.

is jurisdiction ; and it is coram judice whenever Mr. SWAYNE, in behalf of the respondent, into action.” Ibid.; case last cited.

a case is presented which brings this power declined making oral argument, for the reason See also 2 Smith's Leading Cases --Duchess that he thought the authorities presented in his of Kingston's case---and the authorities there

cited. printed brief must, without elaboration, more than satisfy the Court of the soundness of the collaterally questioned in this way. A writ of

IV. The validity of a judgment cannot be positions therein taken, and also because but habeas corpus cannot be made to perform the recently he had argued before the Court similar functions of a writ of error. If the process points at considerable length. .

under which the relator is held be regular on

its face, this Court will not interfere in this mode His printed brief is this :

of procedure. 1 Barb. 341, In the matter Supreme Court of Ohio,

of Prime; 51 Eng. Com. Law Rep: 648, 655, Special Session — May 25, 1859. Ex parte Partington ; 57 Idem, 215, In ré Simeon Bushnell

Richard Dunn; 57 Idem, 416, Ex parte Cobbet;

68 Idem, 564, 567, Dimes case; 2 Greene 312,

Habeas Corpus. Peltier 0. Pennington ; 4 McCord 233, Ex D. L. Wightman, Sheriff of Cuyahoga County, Ohio.

parte Gilchrist; 1 Watts 66, Comm. v. Leakey;

5 Ind. 290, Wright v. The State ; 6 McLean Statement, Points, and Authorities under Rule 355, Ex parte Robinson; 2 Paine 348, In the II. (for Oral Argument).

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

V. When it appears, in proceedings upon a

habeas corpus, issued by a State Judge, that the The relator has been indicted and convicted, relator is held under authority emanating from before the District Court of the United States the laws of the United States, the Judge can for the Northern District of Ohio, of offences proceed no farther, but must remand the prisunder the Act of Congress, upon the subject of oner. 21 How. —, United States v. Booth ; 5 fugitives from labor, passed September 18, McLean, 199, Morris v. Newton ; 9. Johnson, 1850. He has been sentenced, and is in con- 239, Ferguson's case ; Hurd's Hab. Cor. 198, finement accordingly. The object of this writ Mr. Justice Nelson's charge. of habeas corpus is to set him at liberty. The VI. The adjudications of the Supreme Court respondent's return shows these facts.

of the United States, upon all questions within its jurisdiction, are binding upon the State

Courts, and conclusive. I. The statute of Ohio, in regard to writs of (2.) The Constitution of the United States habeas corpus, expressly excepts and excludes provides : from its operation " persons convicted of some Art. 6. 6 This constitution, and the laws crime or offence for which they stand committed.” which shall be made in pursuance thereof, and This is a case of that kind. 3 Howard 103, all treaties made, or which shall be made, under Ex parte Dorr; 3 Pet. 193; 7 Wheat. 38. the authority of the United States, shall be ta's




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