Marshall County Republican. (Plymouth, Ind.) 1856-1878, 1859-06-09
The O1crIis RcscMers!
UNCONSTITUTIONAL OF THE FU-
GITIyE SLAyELAW.
OPINION OF JUDGE BRINKERHoFF


We find in the Ohio papers the follow
ing opinion in the case of the Oberlin Res,
cuers-Bushnell and Langston--dslivered
by Judge Brinkcrholf, of the Supreme
Court Of that State: e. sis fao.
BEINKEEuerF. J.. said 2
Since the close Of the argument OF these
cases--Sunday and a visit to my family
Intervening have not had time to do
more than hastily to sketch brief outline
of my opinion on the questions they pre-
sent This l give; and may or may not.
as leisure or inclination may prompt. com
nit them to paper. with the reasons on
which they rcst more fully and in detail
hereafter. .5f.r .
i. Under the advice of the District At
torney Of the United States, the indict-
mccnt under which the REALTORS were con-
victed. arc appended to, ami form a part
Of, the return to these writs. The qucs
tion whether they charge crime or not.
is therefore before us. Both indictments
are fatally defective, in this, to wit, tha,
neither Of them aver that John was held to
service or labor in the State Of Kentucky
"under the lars thereof" ID section. 4tl
article. Constitution United States.
/. This defect is not a mere error or ir.
regularity. If it were, so far as this point
is concerned. we should be obliged to re.
mand the prisoners; for the writ of HsJeas
Corpus cannot he made to peri, r.n the
functions Of a writ OF error. But I'd. This
defect is an illegality. The aysrmcnt
omitted is Of the essence of the crime; with
out the fact omitted to bc averrcd, there is
no crime; for it is no crime to rcscue from
custody person held to service or labor
in another State otherwise than 'undsr 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 REALTORS are held, is eordm
non judice and voil; they are Illegally re.
strained of their liberty. and ought to be
discharged
! III. 1. The Indictment against Bushnell
contains but one count, which charges the
rescue of John from the custody of al
agent Of the claimant Of his labor and ser
vice in Kentncky-John having been ar.
rested and held in custody without war.
rant or any color of legal process. az 3
Itappcars, then. on the face of the record
which is made part. of the return to this
writ. that here was person doinicilcd OF
sojourning in Ohio, free State, and there
/ fore presumed in law to be free man
''unrcasonably seized" and deprived O.
I his liberty" not only without due pro
cess Of law" but without the prctense ol
color of any process whatever. This ar
rest and custody was in direct contravsn
i tion Of the fourth and fifty articles of ths
amendments to the Constitution OF thu
United States. The rescue Of person
I thus ..unrcasoxably seized and ''dcprivet
Of his liberty without due process Of law,
cannot be a crime; and any statute or ju
dicial procedure which attempts to make
or treat it as a crime, Is unconstitutiona
and void.
! 81. The Indictment against Langston has
I two counts: the first of which is entirely
+; similar to that against Bushnell; and th'
second of which alleges q similar rescue O
John while arrested and held in custody
under warrant issucd by COMMISSIONS
OF the Cirenit Court Of the United States
authorized BY act Of Congress to issuc sucl
warrant. snd, under the authority sherco
| to arrest. hold, and remove the person des
cribed therein to . foreign jurisdiction as
slave.
The acts Of Congress referred to clearly
; attempt to confer on these commissioner,