Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1859-06-10

May 80, all the Judges being present.
The decision of "A majority nf the Court
namely, Chief Justice Swan, and Judge
Scott and Peck--was against he PRAYER
the REALTORS. Judges Brnkerhoff and Sutli
dissentcd from the majority Of the Court.
JUDGE SWANS oPi>IoN.
judges Swan, Scott and Peck held
! That Il provisions of art. 4. sectio U
9, Of the Constitution Of the United Stated
no person held to service or LABOR in on
State under the laws thereof. escaping int
another. shall, IN cons 'duence Of any law
regulation therein. be discharged from sue
service or labor, hut shall be deliv red up o
claim of the party TO whom such service
Labor may be due" guar ,ntees to the owne
Of an escaped slave the right Of reclamation
H. That citizen who knowingly an
intentionally interferes with, for the purpos
IT re-cu' or rescues from the ow ,ers, nm "a
cared slave, is guilty of violation of TIL
Constitution of the United States whethe
the acts of 1893 and 1850, commonly calle
the Fugitive Slave laws, are unconstitutiond
Or not.
III. That the question in this case is nd
whether the fugitive slave act Of so is ur
constitutional in respect to the appointment
md powers of commissioners. the allowano
Ola writ Of habeas corpus, the mod of rd
clamation, &c, hut whether Congress ha
any power to pass any law VIII tever, how
ever just and proper in its provisions. for tn
reclamation of slaves, or to protect the owne
ofan escaped slave from interference whe
duly asserting his constitutional rights
Exclamation.
". That Congress, from the earliest period
Ut the government, has, by legislative pena
ties, indicated the Constitutional right
the owner of slaves against unlawful inter
ference.
V. That such legislation was adopted j
1893 by the second Congress elected unde
the Constitution, composed of many Of tn |
members of the convention who framed thu
Constitution; has, from that day to thisI
been acquiesced in by all departments Of tn
government, national and State; and TIL
legislative ROVER If Congress on this subjec|
has been recognized by the neral Assembly
Of the State Of Ohio in Their statutes; by tn
Supreme Court of the United States. and b{
the Supreme Court Of Massach usetts. NeJ
York, Pennsylvania, Indiana. Illinois, CalifoI|
mia, by the Supreme Court Of Ohio on TIL
circuit, and, indeed, by the Supreme Court
Of every State in the Union where the questio |
has heen made, and hns never Been denied b
VIC oup iChO SouIG VI any otdIc-Luo SDuI
Of Wisconsin. notwithstanding the popula.
impression, not frning an exception.
vi. The right to reecue escaped slaves fror
their owners being denied to all citizens d
the United States by the Constitutions; Con
sress having prohibited it and enforced tn
prohibition by penalties; the Supreme Cour|
Ut the United States and Courts of the FreI
States having recognized and acquiesced II
such legislative prohibition ard punishment :
if the question is not thus tut hey md th&
reach OF the private personal views of Judges
and if they possess judicial disc elton Of
wcr to override on the authority of the}
individual opinions this unhroken current d
decisions and this acquiescence of the STATED
OF the Union, and change the settled interpret
tation Of the Constitution of the United
States; then there is no limit and no restraint
upon judges maki"s at any time, and unde}
any circumstances, their own individual
opinions, the arbitrary Interpreters of thd
Constitution.
VII, Whatever differences ofopinion may
now exist in the public mind us to the powe}
ut Congress To punish rescues as provided ind
the acts Of 1893 and 1850. no such vital blow
is given either to constitutional rights Cd
State sovereignty by Congress thus enacting
law to punish a violation of the Constitu1
ton Of the United States as to demand of thi4
Court the organization of resistance. If. afte}
more than sixty years Of acquiescence by all
departments Of the National and Statd
Governments, in the power of Congress I'd
provide for the punishment Of rescuers Of
escaped slaves, that power is to be dsrIgarded
and all laws which may be passed by c NJ
gress on this subject from henceforth are to
be persistently resisted and nullitied, the work
nE rav, ,lut finn sh,uld ha harnp hu III =
conservators of the public peace.
Judge Scott orally lss,nted to tn, forsyo-
ing, as embodyng his views, especi lily in its
conclusions although he intimated that he
would, in written opinion, m ,dify some of
the details.
Judge Peck delivered an elaborate written
opinion, coinciding with Judges Swan and
Scott comprising review of the decisions of
the Courts, and particularly of the State
Courts, upon the questions involved in the
case, and treating the whole matter as a res
odjudicaia.
Judge Sutliff also read dissenting opin-
ion, taking the ground that, according to
the established rules of construction, no au-
thority for Congress to pass the Fugitive act
could be found in the Constitution.
Judge Brinkerhoff also dissented from the
majority Of the Court, in a forcible opin.
ion.
Some of the points made by Judge Brink
erhof are as follows
Both indictments are fatally defective,
in this. to wit; that neither Of them aver
that John 1.-THE fugitive slave), was held to
service or labor in the State Of Kentucky,
"und.r the ialcs thereof" This defect is not
II mel @ error or irregulari;y. hut On illegal
ity. The averment omitted is the essence Of
the crime /; without the TACT omitted to DO
averred, there is no crime; for it is no crime TO
rescue from custody person held to service
or labor in another State otherwise than 'un-
der the laws thereof"
These REALTORS ought to be discharged.
because they have been indicted and convict
ed under an act of Congress upon a subject
matter in reference to which Congress hos,
under the constitution of the United States,
no legislative power whatever. conclude,
that the States are bound. in full
tillment of their plighted faith, and through,
the medium of ileir laws, legislation and
functionaries to deliver up the fugitive from
service OF labor. on claim Of the party TO
whom such service or labor may be due un-
der the laws OF another State from which
the fugitive has fed. But the Federal gov
ernment has nothing to do with the subject,
and its interference is sheer usurpation OF
power not granted, but reserved"
In arguing this last point Judge Brinker'
hoot says
..Tho Federal legislature has usurped
nowsr NOT granted by the constitution, and
FEDERAL judiciary has, through the medium
Of reasonings lame. haltihg, contradictory,
and of .ar-fetched implications, derived from
lnwarranted assumptions and false history,
sanctioned the usurpation. deny that the
decisions of usurping party in favor Of the
;alidity of its own assumptions, can SETTLE
lnything. 1t is truc that the courts and
legislatures of several OF the states have de-
,ided in the same way; but they have been
decisions of acquiescence, rather than OF orr,