Anti-slavery bugle. [volume] (New-Lisbon, Ohio) 1845-1861, 1859-06-25
Tbe Antt- Slavery Buale.
JUDGE BRINKERHOFF'S OPINION.
Brinkcrhof, j., said:

ID Brinkorhof, j., said
4. Since the close Of the argument in these cases
Sunday and visit to my family intervening-I
have not had time to do more than hastily to
sketch brief outline of my opinion on the ques
tion they present. This give; and l may and
may not, as leisure or inclination may prompt,
commit them to tae paper, with the on
which they rest more fully and the detail here.
after.
l. Under the advice Of the District Attorney
Of the United States, the indictments under which
the relators convicted, are appended to. and
form part of the return to these writs The ques-
tions whether they charge crime or not, is there
fore before us. Both indictments are fatally de-
fective, in this, to. Wit that neither of them aver
that John was held to service labor in the State
Of Kentucky sander The laos thereof" I'd section,
4th article, Constitution United States
l. This defect is not mere error or irregulari-
". Fit we're. SO far as this point is concerned,
we should be obliged to remand the prisoners; for
the writ of HlJeas Corpus can not be made to per-
form the functions of a writ of error But ID.
This defect is an illegality. The averment omitted
is of the essence Of tho crime; without the fact
omitted be avefrcd there is no crime for it is no
crime to rescue from custody person held to SER
vice or labor in another State other1ciSe than un-
der 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 held is coram non JUDGE and void
they are illegally restrained of their liberty, and
they ought to be discharged.
H. l. The Indictment against Bushnell con-
tains but ore count, which charges the of
John from the custody of an agent of the claimant
of his labor and service in Kentucky-John hav-
ing been arrested and held in custody without
warrant or any color Of legal process.
1t appears, them on the face of the record which
is made part of the return to this writ that here
was person tomiciled or sojourning in Ohio, a
free State, and'thercfore presumed in law to be
free man, "unteasonabiy seized" and deprived of
his liberty" not only without due process of
law" but without the pretense or color of any
process whatever. This arrest and custody was in
direct contravention of the fourth and fifth articles
of the amendments to the Constitution of the Unit
cd States. The rescue of person thus ."unreas-
onably seized" and deprived of his liberty with
out due process of law," cannot be crime and
any statute or judicial procedure which attempts
to make or treat it as crime, is unconstitutional
and void.
2. The Indictment against Langston has two
counts +; the first of which is entirely similar to
that against Bushnel and the second of which
alleges o similar rescue of John while arrested and
held in custody under warrant issued by Com
missioner of the Circuit Court of the United
States authorized by act of Congress to issue such
warrant. and, under the authority thereof, to ar
rest. hold and, remove the person described here-
In to foreign jurisdiction.
The acts of Congress referred to clearly attempt
to confer on these commissioners the powers and
functions of a court to hear and determine 1ues-
tions of law and of fact and to clothe their fnd
iugs and determinations with that conclusive au-
thority which belongs only to judicial action. And
the issue OF the warrant mentioned in the ndct
ment was judicial act,
q These provisions of the acts of Congress refer
red to, and all warrants issued undor them, arc
Unconstitutional and void, for the following reas-
Hors:-
- These Commissioners are appointed by the Cir
cult 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, TART 2, Sec. 2,
and Art. q. Sce 1.) the judicial functionaries of
the United States must be appointed by the Presi-
dent, BY and with the advice aud consent of the
Senate hold their Offices during good behavior. and
receive fixed compensation which may not be
diminished during their continuance in office.
ft The warrant of such commissioner, therefore,
lie nnllity it could afford no authority to hold
John in custody and to rescue him from such IL
legal custody could not, by the law of the land
= be a crime and therefore the imprisonment of
Labg gston BY way Of punishment of such pretend'
ed crime, ia an illegal restraint of his liberty,
and he TOO, ought therefore, to be discharged