Muscatine weekly journal. [volume] (Muscatine, Iowa) 185?-1890, 1859-06-10
The OberIin Rescuers.

of the FEDERAL Officers, before the Suprem
Court of Ohio, under writ Of habeas cor
pus, and have been, by the judgment of tha
I court, rcmanded to custody, and will nov
' have to suffer the full penalty of the law
r unless pardoned by the President or rescued
by their friends. Judge Brinkerhoff dissen
ted from the majority of the court. There
) are several points of interest in his opinion
and as most of our readers, perhaps, have
!: not had the opportunity of reading judicial
investigation of this subject, we subjoin the
most important part of his remarks.
!. Under the advice of the District Attor-
ney of the United States, the indictments
under which the rclators were convicted, are
appended to and form part of the return to
these writs. The question whether they
charge crime or not, is, therefore, before us.
Both indictments are fatally defective In this,
to-wit that neither Of them state that John"
was held to service or labor in the State of
Kentucky "under the laus Mersor'-2d sec
ton 4th article U. S. Constitution.
l. This defect is not a mere error or irreg-
eslarity. If it were, so far as this point is
concerned, we should be obliged to remand
the prisoners; for the writ of habeas corpus
cannot be made to perform the functions of
writ of error.
But2d, this defect is an illegality The aver-
me,at omitted is The essence o. fthe crime. With-
out the fact omitted to be averred, there is no
crime; for it is no crime to rescue from Gus
tody person held to service or labor, oher'-
soise than "under the laws thereof" If there
was no crime charged in the inaictnent the
judgment of the District Court Of the United
States, under which the relators are held, is
coram nan j1ldice, and void they are ille-
gally restrained Of their liberty, and ought to
be discharged.
II. The indictment against Bushnell con-
tains but one count, which charges the res
cue of John from the custody IF an agent Of
the claimant of his labor and service in Ken
tucky--john hacing been arrested and held
in custody gi'hout ,oarrant or any color Of
legal process. 1t appears then on the face of
the record which is made part of the return
to this writ, that here was person domi-
ciled or sojonrning in Ohio, free State, and
therefore presumed in law to be free man,
"unreasonably seized" and "deprived of his
liberty not only without process of law
but without the pretence or color Of any pro-
cess whatever. This arrest and custody was
in direct contravention of the fourth and fifth
articles of the amendments to the Constitution
Of the United States. The rescue of person
thus ''unreasonably seized" and "depriyed of
his liberty without due process of law" cannot
be crime; and any statute or judicial pro-
cedure which attempts to make or treat it as
crime is unconstitutional and void.
9. The indictment against Laughton has
two counts; the first of which is entirely
similar to that against Bushnell and the
second Of which alleges similar rescue of
John while arrested and held in custody un-
der warrant issued by Commissioner
Of the Circuit Court of the United States,
authorized by act of Congress to issue such
warrant, and under the authority thereof to
arrest, hold and remove the person described
therein to foreign jurisdiction as 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 determine.
tons with that conclusive authority which
belongs only to judicial action, and the issue
of the warrant mentioned in the indictment
was q judicial act.
These provisions of the acts of Congress,
referred to, and all warrants issued under
them a'e unconstitutional al and void, for the
tollowing reasons: These Commissioners
are appointed by The Circuit Courts of the
United States only; hold their Offices at the
uiU of suck courts; and are paid by fees,
whereas, by the express provisions of the
Constitution Of the United States, Cart. 2,
Sec. 2, and Art. 8, Sec. ~ the judicial func-
tionaries of the United States, must be ap-
pointed by the President, by and seith the ad
uice and consen. Of the Senate; held Mei,
Offices during good 6ehcrioar, and re-
ceive a .fred compensation, which may not
be diminished during their continuance in
Office
The acarrant Of such q commissioner,
therefore, is aulli,y; 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, and
therefore, the Imprisonment of Laughton, by
way of punishment of such pretended crime,
is an illegal restraint Of his liberty, and he.
too, ought, therefore, to be discharged.
COMPLIMENTS FROM AN OPPoNENr.-Tho Da-
venport Nesos thus alludes to Senator Rusch:
But if by any chance we are to have Re-
publican 1t. Governor, why, we say, let it be
Mr.. Rusch. He is very clever mana
German born, but thoroughly an American
citizen in feeling-and as well qualified as
any Republican we know off to fill the Office.
Mr. Rusch is intelligent and well-informed,
and vastly popular with his countrymen.
The only fault we have to find with him is his
politics. We regret to see SO sensible man
holding such detestable political principles,
and in such bad company. But if we are
to have member of that heterogeneous mass,
the Republican party, for our second in au-
thorty in the State, why, let us have Rusch.