The Jeffersonian Democrat. [volume] (Chardon, Ohio) 1854-1865, 1859-06-17
Judge Brikerhnf's On,nion.


opinion delivered by Judge BrinkerhoG, in
favor of the discharge of Mossrs Bushnell
and Langston, on hubeds corpus:
But, it Is said, the question is settled aud
our argument comes too late. dony that
it is settled
The iodoral legislature has usurped a
power not granted by the Constitution, and
"a federal Judiciary has, through tho medium
OF reasonlngs lamo, halting contradictory,
and of iar.iotcbud implications derived from
unwarrantod assumptions aud false history.
sanctioned tho usurpution. | deny that tho
decisions OF a usurping party in favor of tho
validity OF It's own assumptions, eau settle
anything. 1t is true that tho courts and
legislatures of several OF the States havO do
cided in the same way but they have been
decisions of ncquiesccncc rather than Of
original and Independent inquiry. Tho fact
that such jurists as llornbOwor, Walworth
aud Webster thought on this subject as
hluk,sho"s that the question is not settled
The tact that a majority of my brethren, as
| understand them, admit that it this wcro q
now question they would be with me. and
that they yield the strong loanings of thoir
own minds to the force of the rule of rrs
ddudicdin alone. proves that the question
recently that the mass of intelligent and in
quiring minds in this country has been
brought to bear upon this question. 1t ro.
qulrcd tho enactment and enforcement of
tho Fugitive Slave act of 1850. overriding
tho most sacred aud fundamental guaran-
ties OF the Constitution. aud disrcgarding in
its provisions even the deccucics OF lcgisla-
ton, as If for the very purpose of irritation
. and humiliation, and the fine and inprison-
ncnt undGr it of thIie men for the exercise
OF the instructive virtues of humanity, to
awaken general inquiry. That inquiry is
now going forward. And so surely as the
maturcd conviction of the mass Of intelligent
mind in this country must ultimately con
trol the operations of government in all its
departments. So surely is this question not
settled. When il is settled right, then it
will bo scttIod,aud not till then.
But, cOtemporaneous construction is ap-
pCalcd 10. | admit its weight, and its title
! to respectful consideration. But cotempor-
ane0us construction speaks with II divided
voice. 1t is true Congress, as early as 7G3
! loglsutCd for tho return of fngitiycs from
! labor. But nearly it not quite evory one OF
tho old States had also ngislatcd on the
saluo subject in iuliilmout Of what they
deemed matter OF constitutional obligation
+
/ the part Of the States, old and now, conIn-
ued until the Supreme Court of tho United
States, i'll the Prigg case, rs lato as 1912,
assumed tor tho Federal Government ex
elusive authority over the subject. And
those who appealed to the cotemperaneoue
/ construction should themselves respect it
| From tho foundation of tho Government
| until within the last ton years, Congress
! claimed and exercised, without question.
/ tull uud cOmplVtO legislative power over
! tho territories q! tho United States and
us early as 1928, in American Insurance
| Company agt. Cautsrs, the Supreme Court
of the Uniled States, Chief Justice Mar.
shalt delivering its opinion, uunuimouslv
decided that III tho territories Congress
| righttuilY exercises tho combined puwrrs Of
! the General aud of State Government.
| Yet IN the recent case of Drud Scott agt
Sanford, all this is overturned and disru-
| gardod, and the whole East theory and
practice of the Government in this respect
attempted to bG reVOlutiouiZed by the iurcc
of II Judicial lpse dirt We are thus invited
by that Court back to tho consideration of
first principles and neither it nor those
who rely on its authority have n right to
complain If We accept the invitation.
know or no way other than through
~.
which tho reserved rights and powers of
tho State can DO preserved, and tho guar
antics of individual liberty be yindcated
Tho history OF this country, briof as it is.
already shows that the federal judiciary is
never behind tho other departments OF that
! Government, aud often foremost. in the
assumption of non-grantod powers. Aud
let it bo finally yielded that tho Federal
| Government is, in tho last resort the nu-
| thurltntyu Judge of the extent ui i.s own
! powers, and the reservation aud limitations
! OF tho Constitution which tho frunCrs of
that instrument SO jualously ouduuyorrd
| hrmIy to fix aud guard will soon bo, if thoy
arc not already, oblteratud; and that gov.
| crument, the solo p"sscssOr of tho only
nonns OF revenue in the employment Of
which tho people can bo kept ignorant Of
| tho extent of their own burdens, and with
It's ovorshadowlng patronage, attracting to
! its support tho ambitious bv mcnns of its
honOrs and thu mcrccnary through the mo
diam ot its omoluments, will speedily ho.
como, 1t 1t be not already, practically omnip.
! potent
These were my opinions, freely declared,
for years bctore had tho honor of scat
on this bcuchi aud, having learned nothing
/ dullng tho pcndcncy of these cases to
! CHdhHt, but muCU 10 COHllrm thOm. | know
to reason why | should hesitate to ayuw
! them now.
! giyo my voico in favor o the discharge
of tho roIators.
More Fighting .Austrians Retreating
Inc Europa has arrived with dates TO tn,,
9Th. PaIestro has been captured by tho
Sardinisns, King Emanuel commanding in
person and exhibiting the greatest ga,lantrv.
Tho Austrlans twice attempted to re- take
Paiestro, but were repuisod after sauguinary
struggles. The Sardinbu reports sny that
they captured l 900 prisoners and guns.
Tho SardiniHn bulletin dated Turin, MAY
Slst, says-A fresh victory has been gained
by our troops. At scTGn o'cIcck in the
morning II force ot % 600 Austrians cpdcay-
orod to e.tako Palestro. The King of Sar.
dina commanding tho fourth DIVISION in
person, aud Gen. Cialdini at the head of the
thlrG regiment of Zouavcs resisted the
attack for u considerable time, and then
having successfully assumed tho Offensive
pursued tho enomy, taking q thousand pris.
oncrs aud eight guns, four of which wore
obtained by tho XOuavcs. Five hundred
Austrians wore drowned in canal during
tho battle.
Another battlo took place at Confrcnza,
-