, 1859-06-03
THE >0BERLN RESCUERS! !

THE >0BERLN RBCuERs! |
U1uoHSr11VFIoHA1It1 Or TU 1uaI1Ivr
LAVE LAW.
Opinion of Judge Dr1AkerhoM.
We find In the Ohio papers the following
Opinion in the ease Of the oherlin rescuers-
Bushnell and Lan9ston-delve1ed by Judge
BrinkeEhof, Of the Supreme Court of that State:
BR1SkEaHo5r, j., said:
Since the close OF the argument of these
cases-Sunday aud visit to my family inter-
Fenlng-l have not had time to do more than
hastily to sketch brief outline of my opinion
on the questions they present. This / giye;
and may and may not, Is leisure or inclination
may prompt, commit them 10 paper. with tho
reasons on which they rest more fully md in
detail hereafter.
L. Under the advice of the District Attorney
Of The United States, the indictments under
ed to, and form part of, the return to these
Wrlts. The question whether they charge
crime or not, is therefore before ui Both in
dictments 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
stitution United States.
l. This defect is not mere error or irrecu-
iar1ty., II it we're, 50 far as this point is con-
cerned, Se should be Obliged to remand the
PRISONERS; tor the writ Of Habeds Corpus cannot
be made 70 perform the functions Of writ Of
error But I'd. This defect is an illegality. The
nyerment omitted is Of the essence 81 the crime;
fnN nry7S& &$1LA 49, L At
no crime; for it is no crime to rescue from Gus
tody person held to service Or labor in another
State othezsctse than under the laws thereof"
Il there was no crime charged in the indictment,
the judgment Of the District Court Of the United
States under which the relators are held, is
eordnn non iudies and void; they a1e illegally
restrained of their liberty, and ought to be dis
charged.
II. l. The indictment against Bushnell con-
tains but one count, which charges the rescue
Of John from the custody of an agent Of the
claimant Of his labor aud service in Kentucky
John having been arrested and held in Gus
tody without warrant or any color Of legal pro-
cess.
1t appears, then, On the face Of the record
which Ii made part Of the return to this writ,
that here was person domiciied or sojourning
in Ohio, free State, and therefore presumed in
law to be free man, unreasonab1y seized"
and "depriyed Of his liberty,'' not only "with-
out due process Of law" but without the pre-
tense or color Of any process whatever. This
arrest and custody was in direct contrayention
Of the fourth and fifty articles Of the amend
ments to the Constitution Of the United States.
The rescue Of a person thus unreasonably
seized" and "depriyed Of his liberty without
due process Of law," cannot be crime; and
any statute or Judicial procedure which attempts
to make or treat it as crime, is unconstitu-
tional and void.
I'd The indictment against Langston has two
counts; the first Of which is entirely similar to
that against Bushnell; and the second Of which
alleges q similar rescue Of John while arrested
aud held in custody under warrant issued by Il
Commissioner ofthe Circuit Court of the United
States, authorized by act Of Congress to issue
such warrant, and under the authority thereofto
arrest, hold, and remove the person described
therein to foreign Jurisdiction as slave.
THE acts Of Congress referred to clearly Ut
ers and functions Of 4 court; to hear aud deter
mine questions Of law and Of fact; and to clothe
their findings aud determinations with that con-
elusive authority which belongs only to judicial
action And the issue Of the warrant mentioned
in the indictment Has judicial act.
These provisions Of the acts Of Congress refer
red to, and all warrants issued under them, are
sons:
These Commissioners arc appointed by the Cir
cult Courts Of the United States only; hold their
office at the will Of such Courts; md are paid by
fees. Whereas, by the expressprovlslons Of the
Constitution Of the United States, {Art. Sec.
and Art. g. Sec. ~ the judicial functlonasies Of
the United States must be- appointed BY the
President, By md with the advice aud coEsent OF
the Senate, hold their Offices during goots be-
bavior, and receive fixed compensation which
may not be diminished during their continuance
in office.
The warrant Of such q commissioner, there
fore is nulIitr; 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 crime, aud therefore the imPrison.
mcnt Of Langston by way ofpunishment Of such
pretended crime, IS an illegal restraint Of his
liberty, and he too, ought, therefore, to be dis
charged.
I'LL These REALTORS ought to Be discharged, be-
cause thsy hare been indicted aud convicted un-
der m act Of Congress upon subject matter IN
reference to which Congress has, under the
Constitution Of the United States, no Legislative
power whatever.
As Ito the correctness Of this proposition, there
does not rest on my mind the shadow OF gliu-
mer Of doubt.
The Federal Government Is one Of limited
powers, ond all powers not expressly granted to
It, or necessary to carry into effect such rs are
expressly granted to it By the terms Of the Con-
stitution, are reserved to the States or the Peo-
pie. Amendments, Art. 10.
No person held to serTlce or Labor in one
state, under the law: thereof, eaeap1ng INTO an
other, saall, 10 consequence o. any "a" OF fTssu-
latlon therein, be dlschafgeo from service OF
labor, but shall be delivered up on CLAIM ot tne
party to whom their service or lanof may be
This is the only clause of the Constitution
from which anybody pretends to divine, or in
Il. IL ~ An$ -$
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Me Monner - - aohteA sle" aei@, Tfeozas ana PtV,,
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several otates 10 ano WIN ea:a 9tner, a1a s; tns
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nnt Inc trainers o. me Sonsututlon tupuen1
that Congress ought 10 nase inc power 10
prescribe the manner IN wmc2 sncn ae!s' re-
CORDS ana Pfoceedangs snonsa @ oG M proseo, & ana a.