The Oberlin Evangelist
June 8, 1859
The Habeas-Corpus Case-------Prisoners not Discharged.
The application of Bushnell and Langston for a discharge from imprisonment on the ground of the unconstitutionality of the Fugitive Act, was heard before the Supreme Court of this State on Wednesday and Thursday, May 25 and 26, and a decision against the prayer of the relators was rendered on Monday, May 30, Judges Swan, Scott and Peck refusing a discharge, Judges Sutliff and Brinkerhoff dissenting.
Such a decision is a grievous disappointment – not as much to the convicted rescuers, personally, as to the friends of humanity throughout the country. We had hoped that the Supreme Court of the State, composed of five judges, al elected by the Republican party, would prove a break-water against the overwhelming tide of judicial pro-slavery corruption which has deluged the land. But we are compelled to recall the admonition “put not your trust in princes,” (Judges.)
Langston’s term of imprisonment expired two days after the decision was rendered, and he is now at large. Bushnell will soon have completed the remaining forty days, but this decision will stand a blot upon the judicial record of tour State long after the particular case which called it forth shall have been forgotten. The opportunity was a rare one to strike a blow for freedom and to administer a rebuke to the aggressions of slavery –but Freedom was “wounded in the house of her friends.”
The only comfort we find in the result is in the light, which is shed upon the magnitude of the work yet to be accomplished, even in those regions where the anti-slavery sentiment is the strongest. The people must be instructed in the very elementary principles of righteousness and of human liberty. We must lay the foundations upon the rock.
A supreme judge is to be elected next fall in the place of Judge Swan, when the people will be called upon to sustain or reverse this decision.
The action of the majority appears to have been a mere routine decision. So far as we have seen there was no attempt to grapple with the question upon its nature and inherent principles, but an easy disposition to regard that as law, which the courts have decided to be law. The dissenting opinion of Judge Sutliff has not reached us, but in that of judge Brinkerhoff there is a refreshing energy and manliness, which will go far towards neutralizing the vicious doctrines of the majority. To the allegation that this question is already settled – a res adjudicata, he responds as follows: -
“But, it is said, the question is settled, and our argument comes too late. I deny that it is settled.
“The Federal legislature has usurped a power not granted by the Constitution, and a federal judiciary has, through the medium of reasonings lame, halting, contradictory, and of far-fetched implications, derived from unwarranted assumptions and false history, sanctioned the usurpation. I deny that the decisions of a usurping party in favor of the validity of its own assumptions, can settle anything. It is true that the courts and legislatures of several of the States have decided in the same way; but they have been decisions of acquiescence rather than of original and independent inquiry. The fact that such jurists as Hornblower, Walworth and Webster thought on this subject as I think, shows that the question is not settled. The fact that a majority of my brethren, as I understand them, admit that if this were a new question they would be with me, and that they yield the strong leanings of their own minds to the force of the rule of res adjudicate alone, proves that this question is not settled. The truth is, it is not until recently that the mass of intelligent and inquiring mind in this country has been brought to bear upon this question. It required the enactment and enforcement of the fugitive slave act of 1850, overriding the most sacred and fundamental guarantees of the Constitution, and disregarding in its provisions even the decencies of legislation, as if for the very purpose of irritation and humiliation, and the fine and imprisonment under it of white men for the exercise of the instinctive virtues of humanity, to awaken general inquiry. That inquiry is now going forward. And so surly as the matured convictions of the mass of intelligent mind in this country must ultimately control the operations of government in all its departments, so surely is this question no settled. When it is settled right, then it will be settled, and not till then.”
It is cheering to hear from a judge who can see the difference between form and substance – who is not a tread-mill slave to the mere machinery of law and government. Judge B. concludes as follows:
“These were my opinions, freely declared, for years before I had the honor of a seat on this bench; and, having learned nothing during the pendency of these cases to change, but much to confirm them I know no reason why I should hesitate to avow them now.
“I give my voice in favor of the discharge of the relators.”