Ashtabula weekly telegraph. [volume] (Ashtabula, Ohio) 1853-1873, 1859-06-04


than hastily to sketch brief outline Of
my opinion on the questions they present.
This ! give and ! may aud may not, as
leisure or inclination may prompt, commit
them to paper, with The reasons on which
they rest more fully aud in detail hereafter.
l. Under the advice of the District At
toruey of the United States, the iudct-
ments under which the relators were con-
victed, are appended to, and form part
of the return to these writs. The question
whether they charge a crime or not, is
therefore before u.s. Both indictments are
fatally defective, in this, to wit, that neither
of them aver that John was held to service
or labor in the State of Kentucky "under
the la,cs thereof" Cd section, 4th article,
Constitution United States.
l. This defect is not mere error or ir-
regularity. If it were, so far as this point
is conte,ned, We should be obliged to remand
the prisoners for the writ of Habeas Cor
pas cannot be made to perform the func-
tions Of a writ of error. But I'd. This
defect is anillegality. The averment omit
ted is Of the essence Of the crime with
out the fact omitted to be averred, there
is no crime for it is no crime to rescue
from custody person held to service or
labor in another State otherwise than "un-
der the laws thereof" If there was no
crime charged in the indictment, the judg-
ment Of the District Court of the United
States under which the REALTORS are held, is
oOrdm non jadioe and void they are illegal
ly restrained of their liberty, and they
ought to be discharged.
III. l. The indictment against Bushnell
contains but one count, which charges the
rescue of John from the custody of an
agent of the claimant of his labor and SER
vice in Kentucky-John having been ar
rested and held in custody without warrant
or any color of legal process.
1t appears, then, on the face of the re-
cord which is made part of the return to
this writ, that here was person domiciled
or soiOurning in Ohio, free State, and
therefore presumed in law to be free man,
"unreasonably 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 aud
custody was in direct contraventon of the
fourth and fifth articles of the amendments
to the Constitution of the United States.
The rescue of a person thus "unreasonably
seized and deprived Of his liberty with
out due process of law" cannot be a crime,
and any statute or judicial procedure which
attempts to make or treat it as q crime, is
unconstitutional and void.
I'd. The indictment against Langston
has two counts the first of which is en-
trely similar to that against Bushnell
and the second of which alleges q similar
rescue of John while arrested and held in
custody under a warrant issued by Com
missioner of the Circuit Court of the Uni
ted States, authorized by act of Congress
to issue such warrant, and, under the au-
thority thereof, to arrest, hold, and remove
the person described therein to a foreign ju.
risdiction as a slave.
The acts Of Congress referred to clearly
attempt to confer on these commissioners
the powers and functions of court to
hear and determine questions of law and of
fact !; and to clothe their findings and de-
Examinations with that conclusive authority
which belongs only to judicial action And
the issue of the warrant mentioned in the
indictment was judicial act.
These provisions Of the acts Of Congress
referred to, and all warrants issued under
them, are unconstitutional and void, for the
following reasons
These Commissioners are appointed by
the Circuit 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 Constitu-
tion of the United States, Cart. 2, Sec. 2,
and Art. 3, Sec. l the judicial function
aries of the United States must be appoint
ed by the President, by and with the ad-
vice and consent of the Senate hold their
Office during good behavior, and receive a
fixed compensation which may not be di-
miniShed during their continuance in Office.
The wsrrant of such a commissioner,
therefore, is a nullity it could afford no
authority TO 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 restraint of his liberty,
and he too, ought, therefore, to be discharg.
ed.
III. These REALTORS ought to be discharg-
ed, because they have been indicted and
convicted under an act of Congress upon
subject matter in reference to which Con-
gress has, under the Constitution of the
United. States, no legislative power what
ever.
AS to the correctness of this proposition,
there does not rest on my hand the
shadow or glimmer of doubt.
The federal government is one of limited
powers, and all powers not expressly grant
ed to it, or necessary to carry into effect
such as are expressly granted to it by the
terms of the Constitution, are reserved to
the States or the people. Amendments,
Art. 10.
''No person held to service or labor in
one State under the laws thereof, escaping
into another, shall, in consequence of any
law or regulation therein, be discharged
from such service of labor, but shall be de-
liYered up on the claim of the party to
whom such service or labor may be due"
Art. A. Sec. 2.
This is the only clause of the Constitu-
tion from which anybody pretends to di-
vine, or in which anybody pretends to find
a grant of mower TO Congress 10 leOislata