The Richmond palladium. [volume] (Richmond, Ind.) 1855-1875, 1859-06-30
The Sbcftin EcscuerS. Eucon>tiIu-
tiOnaItty ofthe ;u.ittve sInVe Law
Opinion Of fudge f.rinkcrilOn.

.
Bushnell aud sngston-lel5yerel by
Judge RriBkerhof, ofthe Supreme Court Of
that State.
BRrNKERHorF. J.. said:
Since the close Of the argument Of these
cases Sunday ana visit 70 NY fYmli7 in
tervenng--I 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, a. leisure or
inclination may prompt, commit them 70 pa
per- wirh the reasons On which they rest,
more fully in detail hereafter
Under the advice Of the District Attor
ney OF the Uuited States. the indictments un-
der which relators were convicted, are APP
pended 70. and fora a part If, the return %
these wFits- The question whe her they
charge 4 crime or net, is therefore before Us
Both indictments are fatality defective. IA
this, to wit. that neither Of them aver that
John was held to service Or labor Ia the State
Of Kentucky "nHd,r h5e kpsrs fhcre2f," II
section, 4th article, Constitution L. States.
/. The defect Is not mere error or irreg-
ularity. Ifit were, 50 far as this point Is con
carned, we should BE Obliged % remand the
prisoners; for the writ Of hqbaa3 carp4s can
not be made 10 perform .he functions of
writ of error. But 2d. THIS defect Is IL
legality. The averneut omitted Is ot the es-
sence OF the crime; wiihou. the fact omitted
to be ayevred, there i no crime; for it is no
crime to rescue from custody a person held
10 service or labor IN another State otbe1rtye
than under the laws thereof" Ii there was
no crime charged in the Indictment the
Jud5m oi the District Court OF the United
States under which the REALTORS are held, Is
eoranl nan rJlItc aad void. they are illegal
Iy restrained Of their liberty, and ought to be
discharged
Ii. /. Tie indictment against Bushnell
contains but one count, which charges the
rescue Of John from the custody OF an agent
OF the clamant OF his labor and service in
kentucky John having been arrested aud
held in custoday without warrant or any
color of legal process.
Ii appears. then. on the face of the record
which Is made a part OF the return To this
writ. that here WAS a person domcied or So
lourulng in Ohio. a free State, aud therefore
presumed in law TO be a free man. .'anreas-
onsbly sezed,' and '.deprived Of his liberty
not only without due process of law but
without the pretense or color of any process
Whatever. This arrest and custody was in
direct contraventon OF the fourth and httie.h
articles 81 che amendments to the Conslitu-
uon OF the L nlted ttota= The rpSctI,4 Of
person thus 'unreasouablv sesznd" and de
prived of his liberty without due pvocess OF
law" cannot be a crime; and any statute ~
Judicial procedure which attempts to make or
treat II as a crime, uncon stltutioual and
void.
2d. The Indictment against Langston has
two counts; the first of which is entirely sim
liar, to that a5ainst Bushnell. anl the second
OF which alleges a similar rescue OF John
while arrested and held in custody under a
nv
cuit Court Of the United States. authorized
by act OF Congress to issue such warrlut and,
under the authority thereof t. arrest, hold
aud remove the person described heIeln To
ferei5n iurIs iictt"a a. / sla,e.
The acts OF Congress referred 10 clearly at
tempt to confer on these commissioners the
powers aud functions OF court; 10 hear and
determine questions of law and OF iact and 10
clothe their findings and determinations with
that conclusive authority which belongs only
to judicial action. And the issue of he war
rant mentioned in the indictment ~as judi
clal act.
These provisions OF the acts OF Congress re
terred to- aud all warrants issued under them,
are unconstitutional and void. for the follow
Ing reasons:
These Commissioners are appointed by the
Circuit Courts Of the Unitet Safe, only;
hold their office ~ the Will Of such Courts;
and are paid by fees Whereas, by the cN-
press provision of the Constitution OF the
United States, Art ,. See >. and Art 3,
See. /, the Judicial iuuctionaries Of the Unit
ed States must be appointed by the presi-
dent by and with the advice and consent Ct
the Senate, hold their offices during good
behavior. and received fixed compensation
which may not be diminished during their
continuance IN office.
The wsuaut of such commissioner,
therefore, Is a nulhty; it could afford no au-
thority to hold John in custody; and to res
cue him from such Illegal custody could not,
by the law of the land. be a crime, and there
fore the Imprisonment of Langs'on by wav OF
punishment ot such pretended crime. IS an
illegal restraint Of his liberty. and he too,
ought therefore, 10 ba discharged.
Ill These REALTORS ought 10 be discharged
because they have been indicted ard con
vic'ed under an aet # Congress upon sub
iect matter upon which Congress has. under
the Constitution cf the United States. no
legislative power whatevcr.
As to the correctness Of this proposition.
there does not Test On my mind the shadow
or glmmer ot a doubt.
The Federal Government Is one Of limited
powers. and all powers NOT expressly granted
10 IT, or necessary 10 carry lut3 effect SuCl As
are expressly granted 10 it BY the terms OF
he Constitution: are reserved 10 the Sta,e>
or the people. Amendments Art 10
No person held 10 service or labor in one
State. under the laws thereof. escaping into
another. shall, in consequences Ell any lsw o.
regulation therein. be discharged from s-ryic,
or labor. but shall be delivered mp on claim
OF the party 10 whom their service OF labor
may be due p" Art 4 See. .
This Is the only clause of the Constitution
from which anybody pre;ends 70 dirjae. c
IN which anybody preseud> 10 find a grant Q
power to Congress to le.i>late on the sueJec
} OF the rendition Of !ugiuves from labor.
can tind in 1t no saca grant. The first par
OF il simply prohibits State legislation hoSdt
70 the rendition of fagt;yes from labor
Sach fugitive shall uot lie discharged -
consequence. OF any law II regulation" cit
m. yxis..b no sksH & J.. aa