Christendom, surviving, by its inherent vitality of justice, the overthrow of empires and the wreck of civilization,—let it follow the track blazed out for it by the Supreme Court of the United States itself in the earlier and it may not unfitly be added the better days of the Republic.

There still remains a single topic of which it is difficult to determine how much or how little ought to be said. No man has dared to breathe it in this presence, and yet the Federal functionaries have filled the air with it, so that I hear and you hear it openly said, that if this court following these ancient landmarks, following the track of the Supreme Court before it became a sectional court-shall, in the exercise of its highest and most imperative function, enlarge these relators, there will be a collision between the State and the Federal Government. WHAT THEN? Are we children; are we old women, that we shall be frightened from duty by this menace? Are the court, coerced by these threats, to pronounce a decision which shall stultify their judgments and blast their consciences? Has come to this, that the Federal authorities, instead of invoking the appellate power of the Supreme Court to review your proceeding, are to trample your judgments under foot in your very presence? And are you, therefore, to remand these applicants to an unlawful imprisonment? If these be the only alternatives — if collision can be avoided only by striking down every safeguard with which the Constitution has hedged about the liberty of the citizen, LET COLLISION COMECOME NOW. Let the question be settled while I live. I don't want to leave the alternative of collision or of the absolute despotism of the Federal Government as a legacy to my children. But, do not misunderstand me. It is not in a judicial tribunal that one should hold the law as naught, or undervalue the inestimable blessings of order and peace. LAW I reverence; but not the “law of King Bomba.” ORBER, I stand by that, but not the "order" which “reigned in Warsaw." PEACE that I would preserve at almost any cost but not that peace which is only the quiet of the grave.

But there will be no collision. These threats and fears are alike idle. If this court shall by its judgment discharge the relators, the Federal Government will acquiesce in that judgment until it shall have been reviewed in the mode contemplated by the Constitution. Whenever another like case shall again arise, the State Court will again discharge, and this process must be continued until the Federal Government, listening to reason, shall voluntarily return again to the sphere of its legitimate functions and duties; or until the PEOPLE, roused to action, and exercising the constitutional remedy, shall constrain its return by a will only less sovereign; and with reverence be it said only less divine than the WILL OF GOD. And here, I leave with your Honors, this case

and all the great interests which it involves. Weightier consequences never hung on the arbitrament of any tribunal. The strain of the Federative System has come, and your Honors are to determine, at least for the citizens of Ohio, whether under that system there can be any adequate protection, for the reserved Rights of the States, or any efficient safeguards for the Liberty of the citizens. THE CAUSE OF CONSTITUTIONAL GOVERNMENT IS HERE, AND NOW, ON TRIAL. GOD SEND IT A SAFE DELIVERANCE.

SECOND DAY. MORNING SESSION. The masterly argument of the AttorneyGeneral occupied the entire afternoon of yesterday, and the morning of to-day. The Court adjourned till afternoon to hear argument in another and somewhat similar case.

SECOND DAY. - AFTERNOON SESSION.

After hearing argument in the case of the relator from Cincinnati, the Court took recess until Saturday morning, to make up its opinion.

THIRD DAY. SATURDAY..

The Chief Justice, opening the Court, announced that as the case was one of much importance, and the authorities cited by counsel were numerous, the recess had been consumed in industrious labor, without finishing the work as thoroughly as it seemed to the Court desirable, and, doubtless, would also to all parties interested. The Court would, therefore, take further adjournment until Monday afternoon, at 3 o'clock, when it was hoped the decision would be rendered.

FOURTH DAY.-MONDAY, MAY 30,

At 3:24 the Judges took their seats. The opinion of the majority was read by Chief Justice SWAN, only a syllabus of which his Honor was willing to furnish for publication

་་

JUDGE SWAN'S OPINION.

Judges SWAN, SCOTT, and PECK held :

I. That the provisions of Article 4, Section 2, of the Constitution of the United States, "No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due," guarantees to the owner of an escaped slave the right of reclamation.

II. That a citizen, who, knowingly and intentionally, interferes with, for the purpose of rescue, or rescues from the owner an escaped slave, is guilty of a violation of the Constitution of the United States, whether the Acts of 1793 and 1850, commonly called the fugitive slave laws, are constitutional or not.

III. That the question in this case, is not

whether the Fugitive Act of 1850 is unconsti- of the national and State governments, in the tutional in respect to the appointment and pow-power of Congress to provide for the punishers of Commissioners, the allowance of a writ ment of rescuers of escaped slaves, that power of habeas corpus, the mode of reclamation, etc., but whether Congress has any power to pass any law whatever, however just and proper in its provisions, for the reclamation of slaves, or to protect the owner of an escaped slave from interference, when duly asserting his constitutional rights of reclamation.

IV That Congress, from the earliest period of the government has, by legislative penalties, vindicated the constitutional right of the owner of slaves against unlawful interference.

is to be disregarded, and all laws which may be passed by Congress on this subject from henceforth, are to be persistently resisted and nullified, the work of revolution should not be begun by the conservators of the public peace.

Judge SCOTT orally assented to the fore going, saying that he agreed with its logic in the main, and with its conclusions altogether. He might or might not write out his opinion hereafter.

Judge PECK delivered an elaborate written opinion, coinciding with Judges Swan and Scott, comprising a review of the decisions of the courts, and particularly of the State courts, upon the questions involved in the case, and treating the whole matter as a res adjudicata. We were not able to procure either the opinion or a synopsis of it. It was mainly an elaboration of the brief of Mr. SWAYNE.

V. That such legislation was adopted in 1793, by the second Congress elected under the Constitution, composed of many of the members of the Convention who framed the Constitution, has, from that day to this, been in active operation, and has been acquiesced in by all departments of the Government, National and State; and the legislative power of Congress on this subject has been recognized by the General Assembly of the State of Ohio in their statutes; by the Supreme Court of the United States, and by the Supreme Courts of Massachusetts, New York, Pennsylvania, Indiana, Illinois, California, by the Supreme Court of Ohio on the circuit, and, indeed, by the Supreme Courts of every State in the Union, where the question has been made, and has Since the close of the argument of these never been denied by the Supreme Court of cases Sunday and a visit to my family interany State - the Courts of Wisconsin, notwith-vening - I have not had time to do more than standing the popular impression, not forming an exception.

VI. The right to rescue escaped slaves from their owners being denied to all citizens of the United States by the Constitution; Congress having prohibited it and enforced the prohibition by penalties; the Supreme Court of the United States and Courts of the free States having recognized and acquiesced in such legislative prohibition and punishment, if the question is not thus put beyond the reach of the private personal views of Judges, and if they possess judicial discretion or power to overrule on the authority of their individual opinions, this unbroken current of decisions and this acquiescence of the States of the Union, and change the settled interpretation of the Constitution of the United States; then there is no limit, and no restraint upon Judges at any time and under any circumstances, their own individual opinions, the arbitrary interpreters of the Constitution.

VII. Whatever differences of opinion may now exist in the public mind, as to the power of Congress to punish rescuers as provided in the acts of 1793 and 1850, no such vital blow is given either to constitutional rights or State sovereignty by Congress, thus enacting a law to punish a violation of the Constitution of the United States, as to demand of this Court the organization of resistance. If, after more than sixty years of acquiescence by all departments

JUDGE BRINKERHOFF'S OPINION.

BRINKERHOFF, J., said:

.

hastily to sketch a brief outline of my opinion on the questions they present. This I give; and I may and may not, as leisure or inclination may prompt, commit them to paper, with the reasons on which they rest more fully and in detail hereafter.

I. Under the advice of the District-Attorney of the United States, the indictments under which the relators were convicted, are appended to, and form a part of the return to these writs. The question whether they charge a crime or not, is therefore before us. Both indictments are fatally defective in this, to wit, that neither of them aver, that John was held to service or labor in the State of Kentucky "under the laws thereof" 2d section, 4th article, Constitution United States.

1. This defect is not a mere error or irregu larity. If it were, so far as this point is concerned, we should be obliged to remand the prisoners; for the writ of habeas corpus cannot be made to perform the functions of a writ of error. But, 2d. This defect is an illegality. The averment omitted is of the essence of the crime; without the fact omitted to be averred, there is no crime; for it is no crime to rescue from custody a person held to service or labor in another State otherwise than "under the laws thereof." If there was no crime charged in the indictment, the judgment of the District Court of the United States under which the relators are held is coram non judice and void;

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

II. 1. The indictment against Bushnell contains but one count, which charges the rescue of John from the custody of an agent of the claimant of his labor and service in Kentucky John having been arrested and held in custody without warrant or any color of legal pro

cess.

ment of Langston by way of punishment of such pretended crime, is an illegal restraint of his liberty, and he, too, ought therefore to be discharged.

III. These relators ought to be discharged, because they have been indicted and convicted under an act of Congress upon a subject-matter in reference to which Congress has, under the Constitution of the United States, no legislative power whatever.

It appears, then, on the face of the record which is made a part of the return to this writ, that here was a person domiciled or sojourning As to the correctness of this proposition, there in Ohio, a free State, and therefore presumed does not rest on my mind the shadow or glimin law to be a free man, "unreasonably seized" mer of a doubt. and "deprived of his liberty," not only "with- The federal government is one of limited out due process of law," but without the pre-powers; and all powers not expressly granted tence or color of any process whatever. This to it, or necessary to carry into effect such as arrest and custody was in direct contravention are expressly granted to it by the terms of the of the fourth and fifth articles of the amend- Constitution, are reserved to the States or the ments to the Constitution of the United States. people. Amendments, Art. 10. The rescue of a person thus "unreasonably seized" and "deprived of his liberty without due process of law," cannot be a crime; and any statute or judicial procedure which attempts to make or treat it as a crime, is uncon- | stitutional and void.

These commissioners are appointed by the Circuit Courts of the United States only; hold their office at the will of such courts; and are paid by fees. Whereas, by the express provisions of the Constitution of the United States (Art. 2, Sec. 2, and Art. 3, Sec. 1), the judicial functionaries of the United States must be appointed by the President, by and with the advice and consent of the Senate, hold their offices during good behavior, and receive a fixed compensation which may not be diminished or increased during their continuance in office.

The warrant of such a commissioner, therefore, a nullity; it could afford no authority to hold John in custody; and to rescue him from such illegal custody could not, by the law of the

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." Art. 4, Sec. 2.

This is the only clause of the Constitution from which anybody pretends to divine, or in which anybody pretends to find a grant of power to Congress to legislate on the subject of the rendition of fugitives from labor. I can find in it no such grant. The first part of it simply prohibits State legislation hostile to the rendition of fugitives from labor. Such fugitive shall not be discharged "in consequence of any law or regulation" of the State into which he shall escape. "But shall be delivered up." By whom? By Congress? By the Federal authorities? There are no such words ; and no such idea is hinted at. This is evident from an inspection of the whole of the preceding portion of this article.

Art. 4, Sec. 1: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Here, in the first place, is a compact between the States respectively an agreement of the several States to and with each other, that the "public acts, records, and judicial proceedings" of each shall have "full faith and credit" given to them in all. Had this section closed here, would any one claim that it embraced any grant of legislative power to Congress? I think not. But the framers of the Constitution thought that Congress ought to have the power to prescribe the manner in which such acts, records, and proceedings, should be proved, and the effect thereof;" and hence they gave the power in express terms. they intended a grant of power to Congress, and not a mere contract stipulation by, or in

When

junction of duty upon the States, they say so, and leave us no room for cavil on the subject. But let us go on —

Sec. 2.The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

"A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

:

That these clauses of section two are mere articles of compact between the States, dependent on the good faith of the States alone for their fulfilment, I suppose no one will dispute. They do not confer upon Congress any power whatsoever to enforce their observance. Then follows the last clause of section two, in respect to fugitives from labor or service, first quoted. And this, like all the other preceding clauses of this article, except the first, is destitute of any grant of power, or even allusion to Congress or the Federal Government. Now, if a grant of power to Congress was here intended, why this silence? If the framers of the Constitution intended a grant of power to Congress in this clause, why did they not say so, as they did say in the first section, in respect to "public acts, records, and judicial proceedings?'

It seems to me that no rational answer can be given to this question, except by a denial of such intentions. Expressio unius exclusio alterius, is a legal maxim as old as the common law. The express mention of one thing implies the exclusion of things not mentioned. It is the dictate of reason and common sense. It is a maxim which applies alike in the interpretation of contracts, statutes, and constitutions. Its application was never more obviously proper than to the question before us; and when applied, it seems to me to bring with it a force little short of mathematical demon

stration.

Thus far I have reasoned as if we were ignorant of the history of the Constitution. But a glance at that history confirms the conclusions to which we are brought by the ordinary rules of interpretation, and makes assurance doubly

article of the Constitution above quoted, was borrowed and transferred, with but slight verbal alterations, from the articles of confederation and the ordinance of 1787 the first three from the former, and the last from the latter with this exception only, that to the first of these clauses was added a grant of power to Congress to prescribe the manner of proof and effect of public acts, records, and judicial proceedings. Here, then, we have certain articles of compact admitted or declared to be such, and nothing more borrowed and transferred from one instrument to another, with no intimation of any change of their character as articles of compact, except in a single instance where the change is expressly declared. The inference seems to me to be irresistible, that, except so far as the change is expressly declared, they remained, after the transfer, the same as they were before articles of compact, and nothing else.

But, it is said, the question is settled, and our argument comes too late. I deny that it is settled.

The federal legislature has usurped a power not granted by the Constitution, and a federal judiciary has, through the medium of reasonings lame, halting, contradictory, and of far-fetched implications, derived from unwarranted assumptions and false history, sanctioned the usurpation. I deny that the decisions of a usurping party in favor of the validity of its own assumptions, can settle any thing. It is true that the courts and legislatures of several of the States have decided in the same way; but they have been decisions of acquiescence rather than of original and independent inquiry. The fact that such jurists as Hornblower, Walworth, and Webster thought on this subject as I think, shows that the question is not settled. The fact The Articles of Confederation, under which that a majority of my brethren, as I understand the struggle for Independence was carried them, admit that if this were a new question through, and for which the present Constitu- they would be with me, and that they yield the tion of the United States is a substitute con- strong leanings of their own minds to the force tained nothing but articles of compact. The of the rule of res adjudicata alone, proves that fulfilment of its obligations was dependent upon this question is not settled. The truth is, it is the faith of the States alone. The Congress not until recently that the mass of intelligent could make requisitions, but had no power to and inquiring mind in this country has been enforce them. brought to bear upon this question. It required the enactinent and enforcement of the fugitive slave act of 1850, overriding the most sacred and fundamental guaranties of the Constitution, and disregarding in its provisions even the decencies of legislation, as if for the very pur

sure."

:: Again: Certain provisions of the ordinance of 1787, for the government of the territory North-west of the Ohio River, were in express terms declared to be "Articles of Compact."

Now, every one of the clauses of the fourth

I know of no way, other than through the action of the State governments, in which the reserved rights and powers of the States can be preserved, and the guaranties of individual liberty be vindicated. The history of this country, brief as it is, already shows that the federal judiciary is never behind the other departments of that government, and often foremost, in the assumption of non-granted powers. And let it He then referred to the rules given by combe finally yielded, that the federal government mentators, which were applicable to the conis, in the last resort, the authoritative judge of the struction of the Constitution. 1st. That the extent of its own powers, and the reservations meaning of the instrument was to be sought and limitations of the Constitution, which the for according to the sense of the terms and framers of that instrument so jealously endeav-understanding of the parties; that where the ored firmly to fix and guard, will soon be, if they terms are clear and the sense distinct from the are not already, obliterated; and that govern- language, recourse to other means is not ad