Delaware gazette. [volume] (Delaware, Ohio) 1855-1886, 1859-06-17
The Aabeas Cospus Cases--Judge
Briukerh offs Opinion.

Bf1nkerhOff, D., sad
Since theselose of the argument Of these ca
ses-S undag and a visit to my family interyenz
ing-I havesnot had time to do more than has
tily to sketch brief outline of my opinion on
the questions they present. This I give; and
l may and may not, as leisure or inclination
may prompts commit theft to paper, with the
reasons on which they rest more fully and in de-
tail hereafter ,.s 80 .=.z-.- .-=z.s-s zzssa
l.. Under the advice of the District Attor=
ney Of the United States, the indictments. IN
der which the REALTORS were convicted, are ap-
pended to, and from part Of the fetdrn to
these wfits.F The question whether they charge
a crime or not, is therefore before us. Both
indictments fatally detective in this, to wit,
that neither Of them aver that John was held
to service or labor in the State Of Kentucky
''ui,aer the aatss thereof" I'd section, 4th arti-
Gle Constitution United States.
| /. This defect is not.a mere error OF, ,irreg-
ularity II it were, so far as this point is con-
ccrned, we should be obliged to remand the
prisoners; for the writ of Habcas Corpus can
| not be made to perform the functions of writ
Of error But I'd. This defect is an llegality.
The ayerment omitted is Of the essence Of the
crime; without the fact omitted to be averred.
there is .nozerime; for it is no crime TO rescue
| from custody person held 70 Service or labor
in another State otherwise than under the laws
| thereof" If there was no crime charged iii
the indictments the Judgment of the District
Court of the United States undqr which the
REALTORS are held, is coram non judice and
void; they are illegally restrained of their lib
erty, and they ought to be discharged.
! II. /. The Indictment against Bushnell
contains but one count, which charges the res
enc Of John from the custody of an agent o.
the claimant of his labor and services in Ken
| tucky-Jo ohm having been arrested and held il
custody without warrant Or any color of lega
process:
1t appears, then, on the face of the recort
which is made d part of the return to this writ
that here was a person domieilcd or sojournine
in Ohio, free State and therefore presumeo
in law to be a free man, ''unreasonably seized
and 1deprived of liberty not only "withou
lue process of law but without the pretens
,r color of any process whatever. This arres
and custody was in direct contravention of tn
fourth and fifth articles of the amendments #
The Constitution of the United States. Tn
rescue of person thus "unreasonabiy seized
and deprived of his liberty without tfocess o
J 'aw,' cannot be a crime; and any statute or ju
lieial procedure which attempts to make 0
treat it as crime, is unconstitutional and void
I'd. The Indictment against Langston ha
two counts; the first of which is elitifely SIM
lar to that against Bushnell; and the second G
which alleges a similar rescue of John Will
I lrrested and held in custody under a Warran
issued by Commissioner Of the Circuit Coul
: ,f the United States; authorized by act {
Congress to issue such warrant, and, under th
: authority thereof to arrest, hold, and reniov
{ the person described therein to q foreign juri
i LECTION as slave.
! The acts of congress referred to clearly a
{ tempt to confer on these commissioners Il
powers and functions of court; to hear az
le determine questions of law and of fact; and
Il ;lothe their findings and determinations wi
rs that conclusive authority which belongs only
e judicial action. And the issue Of the warra
ia mentioned in the indictment was a judici
Il | Lct. ses
IN These provisions of the acts of Congress i
ed ferred to- and all warrants issued under thel
or are unconstitutional and void, for the folowil
II. reasons
II These Commissioners are appointed by t
ed Circuit Courts of the United States onl
he hold their offices at the will Of such cour
llf and are paid by fees. Whereas, by the eHpr'
he provisions of the Constitution of the Unit
he States, Art. 2 Sec. 2, and Art. 3, Sec. ~ /
he judicial functionaries of the United Sta
ith must be appointed by the President, by a
lcr with the advice and consent of the Scna
hold their offices during good behavior, and
ell ceive fixed compensation which may not
his diminished during their continuance in office
The warrant of such a commissioner the
,e fore, is nullity it could afford no author
to hold John in custody and to rescue
inr from such illegal custody could not, by
re- law of the land, be crime and therefore
the Imprisonment of Langston by way of PUN
INV ment of such pretended crime, is an Illegal
straint of his liberty, and he too, ought, th'
and fore, to be discharged.
and III. These relators ought to be dischart
because they have been indicted and conyiC
Won under an act of Congress upon subject L
ieer ter in reference to which Congress has, III
the Constitution of the United States, no
,w's islative power whatever.
As to the correctness of this position, L
does not rest on my mind the shadow or 6
rren mer of doubt.
: to The federal government is one of lin
lens powers, and all powers not expressly grantt
the it, or necessary to carry into effect such as
oom, expressly granted to it by the terms OF