Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1859-06-08

written opinion, ccincIding with Judge
Swan and Scott, comprising a review OF
the decisions of the Courts, and par,Icu-
larly of the Safe Courts, upon the ques-
lions involved in The case, and treating
the whole matter as a res odjudicata.
Judge Suiliif also read dissenting
opinion, taking the ground that according
10 the established rules of construction,
no authority for Congress to pass the
Fugitive Act could be found in the Con.
slilution. The entire document, togelh-
er with the opinion of Judge Swan, will
be given in our next.
Judge Brihkerhoff also disenied from
The majority of the Court, in forcible
opinion, which we give below.
JUDGE BRINKERHOFF'S OPINION.
BrinkerhofF, j., said:
Since the close OF the Argument of these
Sunday and a visit TO my family
iniervenIng-l have not had time 10 90
more Than hastily 10 sketch brief out
line OF my opinion on the questions they
present. This | give; aud may aud
may not, as leisure or inclination may
prompt, commi, them 10 paper, with the
reasons on which they rest more fully
and in detail hereafter.
|. Under the advice Of the District
Attorney of the United Safes, the indicl-
ments under which The REALTORS were con-
yicted, are appended 10, and from a part of
the return to these wriis. The question
whether they charge crime or not, is
therefore beforeus. Both indictments are
fatally defective, in this, to wit: that neilh-
er of them aver that John was held 10
service o. lab r in the Sale Of Kentucty
'under tie laws thereof" ~ section, An
article, Constitution United Safes.
|. This defect is not a mere error or
irregularity. If il were, so far as This
point is concerned, we should be obliged
TO remand the prisoners; for the writ of
Hi6eas Corpus cannot be made 10 per-
form the functions Of writ of error
But ID. This defect is an illegality.-
| The averment emitted is Of the essence
Of The crime; without the iacl omitted be
averred, there is 10 crime; for it is no
crime TO ie-cue from custody a person
held 10 service or labor in another Safe
otaeTlgise than ''under The laws l.erejf" +"
Ii there was no crime charged in The in
Gic;meHt, The Judgment Of the Dis rict
! Court of the Uu;ed States under which
lie relaIors are held, is eoraal non JUDGE
and void, they are illegally resirained Of
their liberty, and they ought 10 be dis
charged.
II. /. The Indictment against Bush.
nell contains but ore count, hich charg-
es The rescue Of john ircm the custody
of an agent of the claiman; of his labor
and service in kemucky-Jobn having
been arrested and held in custody Without
warrant or any color of legal process.
Ii appears, then, on the face of The
record which is made part of the return
10 this witt, that here was person DOM
iciled or sojourning in Ohio, free State,
and therefore presumed in law to be
free man, "unreasonably seized" and
deprived of his liberty" no: only "wilh-
cut due process OF law" but without the
pretense or color of any process whatever.
This arrest and custody was in direct
coniravention of the fourth and fifth ar
/ tlcies oil .he amendments 10 the Consti
tulion Of the United Siaies. The rescue
of person thus ''unreasonabIy seized
and deprived OF his liberty without due
process OF law" cannot be crime and
any statute or Judicial procedure which
attempts 10 make or treat it as crime,
is unc institutional and void.
2. The Indictment against Langston
has two counts the FIRST of bich is en-
Ilrely similar 10 that against Bushnell 4
and the second of which alleges similar
rescue of John while arrested and held
in custody under warrant issued by a !
Commissioner Of the Circuit Court of the
United States, authorized by act of Con-
gTess 10 issue such warrant, and, under
The authority thereof, TO arrest, hold, and
remove the person described therein to
foreign jurisdiction.
Tne acts of Congress referred to clear
ly attempt 10 confer on these commission
ers the powers and functions of court
10 bear and determine questions of law
and OF fact; and to clothe their findings
and determinations with that conclusive /
authority which belongs only to judicial
action And The issue of the warrant
mentioned in the indictment was a Judi !
cial act.
These provisions of the acis of Con-
gress referred TO, and all warrants issued !
under them, are reunconsiitutional and void,
for the following reasons =
These Commissioners are appointed by |
the Circuit Courts of the United States |
only: hold their office al the will of such |
courts; and are paid by fees. Whereas,
by the express provisions OF the Consti |
tuition of the United States, (Art 2. Sec.
2. and Art. 4. Sec. 1. } the judicial func-
tionaries 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 fixed compensation which |
may not be diminished during their con-
tinuance in Office
The warrant of such a commissioner,
therefore. is c nullity; it could afford no
authority 10 hold John in custody: and
to rescue him from such illegal custody |
could not, by the law of the land, be a
crime; and therefore the imprisonment
of Langston by way of punishment of
such pretended crime, is an Illegal re-
straiut of his liberty. and he too, ought
therefore. TO be discharged
Ill. These REALTORS ought to be DIS
charged because they have been indicted
and convicted under an act of Congress
upon subject mater in reference TO
which Congress has, under the Constitu-
lion of the United States. no legislative
power whatever.
AS tothe correc;nessofthis proposition,
there does not rest on my mind the
shadow or glimmer of doubt.
The federal government is one of linn
q IL Ill L L