Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1859-06-10

denied by the Supreme Court Of any State
the Courts Of Wisconsin. Notwithstanding
the popular impression, not forming an eX-
ception
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 acquesccd
in such legislative prohibition and punish
ment, if the question is not thus put beyond
the reach Of the private personal views Of
Judges and if they possess judicial dscre-
ton or power to overrule on the authority of
their individual opinion this unbroken cur
rent of decisions. and this acquesence 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 making, at any time
and under all circumstances, their own indi
vidual 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 rcscues as provided in
the acts of 793 and 1880 no such vital blow
is given either to constitutional rights or
State sovereignty by Congress thus enactng
a law to punish violation of the Constitu-
ton of the United States to demand of
this Court the organization of resistance IT,
after more than sixty years of acquicsencc by
all departments of the National and state
Governments, in the power of Congress to
provide for the punishment of rescucrs Of es-
capped slaves, that power is to be disrcgarded
and all laws which may be passed by Con-
gress on this subject from hcncciorth are to
be persistently resisted and nulifed, the
work of revolution should not be begun by
the conservators of the public peace
Judge Scott orally assented to the iorego-
ing, as embodying his views especially in its
conclusions, although he minated that he
would. in a written opinion, modify some Of
the details
Judge Peck delivered an elaborate written
opinion. coinciding with Judges Swan and
Scott comprising 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 res
adjadicata.
Judge Sutif also read dissenting opn-
ion. taking the ground tnat, according to the
established rules of construction. no author
ity for Congress to pass the Fugitive Act
could be found in the Constitution.
Judge Brnkerhof also dissented from the
majority of the Court in a foreibc opinion,
which we give below.
JUDGE BRtNKERHorF OPINION.
Judge BrinkerhoF said-Since the close
of the argument OF these cases-Suuday, and
visit to my family intervening-l have not
had time to do more than hastily TO sketch a
brief outline Of my opinion on the questions
they present. This give, and / 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.
/. Under the advice of the District Attor-
| ney Of the United States, the indictments
70 under which the REALTORS we're convicted are
, appended to, and form 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,
D to wit. that neither of them aver that John
r was held to service or labor in the State OF
Kentucky "under the lars thereof I'd sec
ton, 18th article. Constitution United States.
/. This defect is not mere error or irrcg-
ularity. If it were so far as this point is
y concerned, we should be obliged to remand
5 the prisoners for the writ of habeas corpus
4 cannot be made to perform the functions Of a
writ of error. But ID, This defect is an it,
legality. The avcrment omitted is Of the cs.
e sence OF the crime; without the fact omitted
e to be averred, there is no crime; for it is Nc
T. crime to rescue from custody person hello
, to service or labor in another State oiheuris
than under the laws thereof If there wai
o no crime charged in the indictment, the iudg
go Al /. al.
- States under which the REALTORS are held. il
+ corom non yadice and void they are Illegal!
restrained of their liberty, and they ought tC
be discharged
IL. The indictment against bushnell
contains but one count, which charges the
c rescue of John from the custody of an agen
d of the claimant Of his labor and service il
c Neutrality-suspicious. having been arrested ant
G held in custody without warrant or any colo
n of legal process
y 1t appears, then, on the face of the recorC
e which is made part of the return to thi
2, writ, that here was person domiciled Of
sojourning in Ohio, free State, and therefor,
3. presumed in law to be a free man, 'unreason
ably seized, and deprived of his liberty,
not only without due process of law, bu
IT without the pretense or color of any process
Il direct contrayenton Of the fourth and fifth
II articles of the amendments to the Constitu
Il ton of the United States. The rescue of
person thus "unreasonably seized and "de
pryed of his liberty without due process o
N law cannot be crime and any statute o
Is judicial procedure which attempts to make o
re treat it as a crime is unconstitutional an,
4; void.
?. The indictment against Langston hai
two counts, the first Of which is entirely sim
? liar to that against Bushnell and the secont
of which alleges similar rescue Of JOIN
e while arrested and held in custody under
o warrant issued by Commissioner of the Cir
W cult Court of the United States. authorized
m by act of Congress to issue such warrant
ID and, under the authority thereof, to arrest
h hold, and remove the person described therein
20 to foreign jurisdiction as a slave.
Of The acts of Congress referred to clearl,
attempt to confer on these Commissioners the
l. powers and functions of a court: to hear anc
Of determine questions of law and fact and t.
D. clothe their findings and determinations with
A. that conclusive authority which belongs onl,
le to judicial action. And the issue OF the war
lo rant mentioned in the indictment was a Judi