New-York daily tribune., 1859-06-02
THE oBERLIY HABEAS CORPUS.
DECISION OF THE OHIO SUPREME COURT.
F,on The Columbu, State Journal, May 81.

recent term Of the United States District Court ior he
Northern District Of Ohio. was announced yesterday
,oernoon all the Judges being present. The decision
Of q majority of the Ccurt-naroely. Chieitusiice
! Swan, and Judges Scott aud Peck-was against tue
PRAYER OF the relator Judges Brlnkerhoh ana outhh
| aissened from the majority OF the Coor'.
Whatever may be the conflicting popular oplnons
upon the decision rendered by malonty O the Court,
the people Of Ohio will doubtless regard It as the de-
Aberae Judgment Of the highest trlounai oi the state
s.d will re ,pect it accordingly.
We oive below a synopsis Of Judge Swans opinion.
we had hoped to bsve given the opinion entire in this
ssue of our paper but it retained by Judge Swan
for revision The synopsis, however, presents the
main points: -, .
Indg Swan Scott and Peck held:
7 Jha. the provisions Of art a. section 9 of the
Constitution of the United States "No person held to
seryice or labor in State under the laws thereof
escaping INTO another shall in consequence of any
Z" law or regulation therein be discharged from such
service labor, but shall be delivered up claim
Of the party to whom such service labor may be
due" guarantees TO the owner of an escaped slave
the right Of reclamation.
III. That citizen who knowingly and Intentionally
nterferes WITH for the purpose of rescue
from the owners, an escaped slave Is guilty Of viola
ton OF the Constitution Of the United States whether
the ac.s of 1898 and 1880 commonly called the Fugitive
Slave laws, unconstitutional or not.
Ill. That the question in this is not whether the
Fugitive Slave act of lsOs unconstitutional respect
to the appointment and power. OF commissoners the
allowance Of writ Of habeas corpus the mode Of
reclamation &C.. but whether Congress hss any power
to pass any law whatever, however just aud proper
Its provisions for the reclamation of slaves to pro-
tect the Of escaped slave from interference
when duly asserting his constitutional rghtsof reclana-
ton.
". That Congress, from the earliest period Of the
Government, has by legislative penalties yndicated
the Constitutional right Of the Of slaves against
unlawful interference.
V. That such legislation was adopted in 1898 by the
lid Congress elected under the Consultation com.
posed Of many Of the members Of the Convention who
framed the Constitution; has, from that day to this
been acquiesced in by all departments Of the Govern
ment National and State and the legislative power Of
Congress this subject has been recogaised by the
General Assembly of the State Of Ohio in their sta
tues by the Supreme Court of the United States and
by the Supreme Courts of Massachusetts,, NewYork,
Pennsyi vania Indiana, Illinois, California, by the
Supreme Court Of Ohio on the circuit and indeed by
the suprene Courts Of every State in the Union whore
the question has been made and has never been de-
Ded by the Supreme Court of any State-the Courts
of Wisconsin, notwithstanding the popular impression
not forming exception.
VI. The right 20 rescue escaped slaves from their
owners being denied to all citizens of the United States
by the Constitution; Congress having prohibited il
and enforced the prohibition by penalties the Supreme
Court of the United States and Courts of the Free
States having recognized and aequiescedin such legs
ative prohibition and punishment if the question Is
not thus put beyond the reach Of the private personal
views OF Judges and if they possess Judicial discretion
power to overTule the authority Of their ndivid
ual opinions this unbroken current of decisions and
Ills acqulescence OF the States Of the tnlOn ana
change the settled Interpretation of the Constitution
Of the United States then there is no limit, and
straint upon Judges making al any time, and under
any circumstances their own individual 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 escues provided in the acts Of 1898 and 1852
such vital blow is given either to constitutional
rights State sovereignty by Congress thus enactng
law to punish violation of the Constitution of the
United States as to demend of this Court the organiza-
ton Of resistance. IT, after than sixty years of
aequiescence by all departments of the National and
State Coy erents in the power Of Congress to pro-
vide for the punishment of rescuers of escaped
slaves that power is to be disregarded and all laws
which may be passed by Congress ON this subject from
henceorth are to be peTsisteny resisted and nuied,
the work frevoluton should not be begun by the
seryators Of the public peace.
Judge Scott orally assented to the foregoing, as en
bodying his views, especially in it's conclusions; al
though he ntimated that he would in written opn-
ion, modify some of the details.
Judge Peck delivered an elaborate written opinion,
coincdipg with Judges Swan and Scott comprising
review of the decisions of the Courts, and particularly
of the State Couits upon the questions involved IN
the case, and treating the whole matter as res dGH
dicQt0.
Judge Sutliff also read dissenting opinion taking
the ground that according to the established rules of
construction authority for Congress to pass the
Fugitive Act could be found in the Constitution.
Judge BrDkefhof also dssented from the majority
of the Court, in forcible opinion, which we give
below.
JUDGE BRINR ERHOFF'S OPINION.
Judge Brinkerhof sad-Since the close OF the argu-
ment Of these cases-Sunday, and visit TO my famly
inervenng-I have not had time to do more than has
tily to sketch brief outline Of my opinion on the
questions they present. This give, and may and
may not as leisure inclination may prompt, commit
them TO paper, with the reasons on winch they rest!
more fully and in detail hereafter.
L. Under the advice of the District-Atorney OF the
United States the indictments under which the reatofs
were convicted are appended to, and form part Oh
the return to these wits The question whether they
|charge a crime not s, therefore, before u.s. both
indictments are fatally defective in this to w.t. that
neither of them aver that John was held to service
Tor labor in the State of Kentucky under ne Ia@eS
lhereo." I'd section, 4th article, Constitution onIed
States -,
/ This defect is not mere error or iuegularity
II il were so far this point is concerned We should
be obliged to remand the prisoners; Tor the VIII oi
hsbeas corpus cannot be made 10 perform Tue iunc-
Hns Of u writ Of error. But "a. Ihis defect is an
Tegslitv' The avernent omitted is of the essence of
De crime; without the fact omitted to De averfeu,
here no crime for il is crime to rescue nom Gus
y person held TO service or labor IN another S'ate
Afrrise than "under the laws thereof. III there
RS no crime charged in the Indictment the Judgment
kthe District Court of the United States under wch
As REALTORS are held, is eoraH non litdee and voidi
hey are illegally restrained of their liberty, ana they
sRht 10 be discharged. u.-.I,.
II. l. The indictment against Bushnell contains 2uI
ae ooupt which charges the rescue of John from the
syody OF AN agent Of the claimant OF his iaOoI anu
service in Kentucky-John having been arrested ana
Asd in custody without warrant or any color OF iesa'
Tsese.
snpears then. ON the face of the record which is
made part If the return to this writ, that here was
}srr domiciled or soourning in ONO, a iree ota'e'
!, s1stsreforc presumed in law to be free man, uu
nsNasblv seized" and deprived OF ms hpei'y, uot
Mg without due process oi law, "."r Iu. VIM" THIS
fsasase or color of any process Whatever. % ihs
sftt and custody was in direct contravenuon |" 1ile
twA and ffth articles of the amendments to the Con