Dawsons Fort Wayne Daily
Fort Wayne, Indiana
May 6, 1859
The Supreme Court of Ohio.
The Cleveland Leader abuses the Supreme Court of Ohio, because it refused the writ of habeas corpus in the Oberlin rescue case. It styles the decision of the five Republican Judges and artful Judge, and is by no means stint in its reflections upon the Supreme Bench, composed as that tribunal is of the choice spirits of the Republican party. Although it is apparent to every sound lawyer that there was not a particle of ground in these cases upon which to base or justify an interference now nor can there be hereafter, on the part of the State Court, yet we are not surprised that the Cleveland Leader, all that large portion of the Republican party of which it is the representative and organ, are chagrinned and mortified at the decision of the Supreme Court. It is not only a miserable and disreputable dodge, in that it really decides nothing, but its failure to stand up to the men who placed the Court in power up on the very issue which is involved in the Oberlin cases. The higher law men of Lorain and the other counties on the Reserve and in all other parts of the State, voted for each and all of the present Supreme Judges, upon the express understanding that them, if elected, would so exercise their high office, as to nullify the Fugitive Slave Law. Without the vote of those fanatics, we say without fear of contradiction, not one of the gentlemen now holding a seat on our Supreme Bench, would have been elected to that high position. They each and all knew, in the several canvasses in which they ran and were elected, that the voters of the Oberlin school held that the Fugitive Slave Law was unconstitutional and antichristian, and that the great point with these voters was to wrest the Supreme Judiciary of the State from the Democracy, and place in the hands of men who would sustain them in resistance to the law. The Court has therefore deceived these deluded men, and has also shown its want of courage and nerve in the dodge which it has promulgated instead of an opinion; a dodge which is construed differently by almost every person who reads it.
The Ohio State Journal and other Republican papers are trying to console the Oberlin School, by intimating that the Court will yet, at a proper time, come to their aid, and decide the Fugitive Slave law unconstitutional. The Court in full bench will never do this. The question will be, we apprehend, artfully evaded by it as a Supreme Court, by an adjournment until after the next fall election, and in the meantime these Oberlinites will be turned over to Justice Sutliff or Justice Brinkerhoff, who, in a kind of petit larceny practice, may attempt to issue a writ or writs of habeas corpus after the conviction and sentence of these higher-law gentlemen. Such we apprehend will be the programme, and if it be, we regret that the question was not met manfully by the whole bench. If we are to have a conflict in Ohio of this kind, by an attempt to nullify a law of Congress, about the constitutionality of which there can be no question, we want to see the whole Republican Bench involved in it. We want no dodging – no throwing the responsibility off on to the two members of the Court who are scarcely responsible for anything they do.
Of one thing, however, we feel quite sure, and that is that a large majority of the people of Ohio will prove loyal to the Constitution and the Union, and in any emergency that may arise, now or hereafter, they will vindicate the supremacy of the laws of Congress and the decisions of the U.S. Courts made in pursuance there of in relation to the Fugitive slave law; and we be to those in authority in this State who so exercise their offices, at any time, as to bring about a collision. – It were better for them that a millstone were hanged around their necks and they cast into the depths of the sea.
The Judges, nevertheless, deserve all the abuse that the Leader has heaped upon them. They have cheated Oberlin by an “artful dodge,” whereas the saints had a right to expect that their Court would sustain them. The Leader should therefore continue to abuse the Supreme Court of Ohio. – Ohio Statesman.
Fort Wayne Weekly Republican
Fort Wayne, Indiana
June 1, 1859
Speech of Clarke Langston.
When Clarke Langston, the colored man who was sentenced to sixty days imprisonment, and to pay a fine of $600 for the part he took in the Oberlin rescue case, recently tried before the U.S. District Court for the Southern Dist. of Ohio, was called up by the Judge and asked what he had to say why sentence should not be pronounced against him, made a speech to the Court in mitigation of the sentence which for eloquence and forcibleness is rarely equaled by the very best efforts of the white race. It was published by the Summit Co. Beacon occupying over two columns. We wish we had room to copy it, but we have not. It is certainly worth the perusal and careful study of all those who think the African only fit to be a slave, one who has no rights which white men are bound o respect and therefore subject to be bought and sold as any other chattel. Unlike the Ox or Horse, this chattel whom we are describing speaks out like a man and we can’t help but think that he is a man.
on the Constitutionality of the Fugitive Slave Law.
Year after year, the Abolitionists of some of the States of the North have studiously sought to bring the civil authorities of the States, and those of the United States, into direct collision on the subject of the Fugitive Slave Act – not for the benefit of the negro, but solely to give fanatical politicians a hobby on which – through deceit and sophistry – they and the innumerably horde of lesser politicians were to gain the attitude of official position - just as inconsiderate and unscrupulous, statesmen counsel war for the purpose of distinction to themselves – not caring one sliver how many of the honest yeomanry of the country, the real flower of the country, are to fall by the sword, or how impoverished may be the nation, or what widowhood or orphanage may come from it; and all this indifference, because the fomenters of these strifes are not to suffer, so long as such are not called into the ranks to form a part of the soldiery. And it may be well inferred, that were these champions of civil discord – these fomenters of war – to suffer from their own rash acts, as do the people whom they involve, that peace and quietude would reign between nations. With a proper regard for our Union, where Federal and State Governments exist in one, yet each separate but harmoniously intended and inseparable without disaster to the economy of the system, we and all should remember, that when the parts begin to war with the whole, that though the whole prevail, yet it results in such a defection as must destroy all the good advantages of a Union, leaving but one phase in which to view it – a prostituted Union of a hand without a heart - a Union in legal contemplation – but not in attachment. Does it not occur to these fanatical men who have been swayed into that party by the sophistry of bad men, that the Constitution of the U. S., the laws made pursuant thereto, &c., are declared to be, and are necessarily supreme, and therefore do not have to depend on the uncertain diverse, or partisan interpretation for force and effect? The Toledo Blade of the 31st – the organ of Abolitionism – takes the very antithesis of this plain and indispensable interpretation. In speaking of the decision of the majority of the Supreme Bench of Ohio on the Fugitive Slave Act, (and which decision, or that points thereof we shall quote,) says that “Judges Swan, Scott and Peck, only discharged their duty in giving legal effect to that opinion, if they believed the Fugitive Slave Act to be valid law, and of binding force upon the people and authorities of Ohio.” “Yet,” says the Blade, “We think there is little reason to doubt that the (dissenting) position of Judges Brinkerhoff and Sutliff, more nearly represent the feelings, if not the opinions of the people of Ohio.”
This statement is certainly made either by a madman, or an ignorant one, and we don’t care which the editor of the Blade eschews, but we rather think him wanting in a correct knowledge of the theory of government, and its practical workings. If what is properly inferred from his quoted remarks, be the basis of constitutional interpretation, that is, if while the Constitution lasts, the will of the majority (say of majority of the people of Ohio) of the individual people, be the supreme law, then the Constitution is a deceptive shadow, altogether unnecessary and unavailing. It is understood, that as the Constitution of the U.S. is the Supreme law of the Government of all the people of the Union – and that the laws made in pursuance thereof are of equal supremacy, it certainly is a logical consequence, that that cannot be constitutional or lawful in one State, which is unconstitutional or unlawful in another which would be the case frequently, (and just as the Blade would desire,) if each State, through its judiciary, or otherwise, (“by the opinion of the people.” As the Blade uses the term) had the ultimate right to expound for itself the Constitution of the U.S., and laws made by Congress, made for the people of all the States. Each State has invariably, the constitutional right or judging of its exclusive power under its Constitution; and so has the Federal Government the right to judge of its power; and if there come a collision, it is not hard to divine which was intended, and which must prevail. It is the Constitution of all the States – for that is Supreme – and that fundamental law of all the people of all the States, has created a judiciary, with ultimate power to decide on that Constitution and those laws. Any other course would render the government and impracticable thing – because leading to confusion, anarchy and disunion. Suppose the Supreme Court of Ohio, in the case before us, had discharged Langston and Bushnell from the custody of the U.S. Marshal who held them at Cleveland, under a conviction in the District Court of the U.S., for violating a law of Congress – the Fugitive Slave Act, it would in that case have set its own judgment up, in opposition to the constitutional organs of the General Government – and resisted by force, and Act which Congress and the Supreme Court of the U.S. had repeatedly pronounced constitutional, - and that resistance would have been treason in the very act of nullifying just what it had no power over. But we quote, as a conclusion of our editorial remarks, what Mr. Madison, then Ex-President, wrote to Edward Everett, Oct., 1830. Mr. Madison said:
“Those who have denied or doubted the supremacy of the judicial power of the United States, and denounce at the same time a nullifying power in a State, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law, nor to the destruction of all equipoise between the Federal Government and the State Governments, if, while the functionaries of the former are directly or indirectly elected by the responsible to the States, and the functionaries of the States arm, in their appointment and responsibility, wholly independent of the United States, no constitutional control of any sort belonged to the United States over the States. Under such an organization, it is evident, that it would be in the power of the States, individually, to pass unauthorized laws, and to carry them into complete effect, anything in the Constitution and laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect through the legislative, executive, or judiciary organ of the State, would be equally fatal to the constituted relation between the two governments. Should the provisions of the Constitution, as hero received, be found not to secure the government and rights of the States, against false usurpation and abuse on the part of the U.S., the final resort, within the province of the Constitution, lies in an amendment of the Constitution, according to a process applicable to the States.”
The following opinion of Judge Swan, came to hand since we wrote, the above, and being so full and so perfect a vindication of the law, as also of legislation, we give it for the history it contains, which will be of vast consequence to many, who, thought they talk of the Federal Constitution and the Fugitive Slave Act, have never read either.
Judges Scott and Peck concur:
J.R. Swan, Ch. J. Supreme Court of Ohio: -
It is proper to say that as Judge of this Court, or the Supreme Court of the State, in regular session, has no more jurisdiction, or judicial power, or discretion, in determining questions which arise upon habeas corpus, than a Probate Judge of the county. Each must be governed by the same rules, and each are invested with the same powers – no more and no less.
The relators being brought before us on habeas corpus, our inquiry must be confined to such questions as are property cognizable under that writ.
The return shows that the sheriff of Cuyahoga County holds the relators in custody under a sentence and judgment of the District Court of the United States, for the offense of rescuing fugitives from service. The judgment of the District Court is conclusive, and precludes all inquiry on habeas corpus, unless it is a nullity.
Waiving all questions made by counsel, as to the power of a State Judge on habeas corpus, to declare the sentence of a Court of general jurisdiction invalid, it is very clear that we cannot, on habeas corpus, go behind the sentence, and revise and review the previous proceedings of the Court. For instance, if these relators had been tried by a packed jury; found guilty without sufficient proof, and upon an erroneous and illegal charge of the Court, we could not set aside the verdict, arrest the sentence, or revise the judgment of the Court. It would indeed be imputing the counsel of the relators the wildest and most absurd views of the law, to intimate that they can claim that a Judge, on habeas corpus, can go behind a sentence, and review and revise the mode in which a trial was conducted. No such claim is made; but to refer to the subject, because those who are unacquainted with the limitations upon the power of this Court, when deciding upon habeas corpus, are not probably aware, that a Judge would be guilty of high handed usurpation and would deserve impeachment, if he undertook to discharge the relators on any assumed ground that they were not, in fact, guilty of rescuing fugitive slaves from labor; or had not had a fair and impartial trial.
Neither the verdict of the jury nor the judgment of the District Court can be collaterally impeached, if that Court had jurisdiction of the party and offense. The verdicts and sentences of Courts in every case would be subject to arbitrary intermeddling, and might be set aside and criminals discharged by any judge who is authorized by statute to issue this writ, if a case could be re-examined and the justice of the verdict and sentence considered on habeas corpus.
And further, if a Court, having jurisdiction over an offense created by a valid and constitutional law, pronounces sentence, and the commitment under that sentence is returned on habeas corpus, the form of the indictment or the want of proper allegations therein, cannot be inquired into; for the habeas corpus cannot be converted into a writ of error. In such case the Court, having jurisdiction over the offense must itself pronounce the law of the case, and, until reversed by some competent tribunal, is conclusive on all other Courts, and puts an end to all collateral inquiry on habeas corpus. Ex parte Watkins, 3 Pet. 198. In the matter of Prime 1 Barb. 340; In matter of Shaw, 7 Ohio, St. Rep. 81. Hence it is that the statute itself relating to this writ excepts from those who are entitled to the benefit of a habeas corpus all persons convicted of some crime or offense, for which they stand committed, plainly specifically expressed in the warrant of commitment. (Swan’s statues 350, sec. 1)
The District Court, then, having by law, if constitutional, jurisdiction over the offense mentioned in the minutes, and having pronounced sentence, it must be deemed conclusive on habeas corpus. We are bound to take the reports as true; and if the relators could, under any state of facts, be liable to imprisonment for rescuing an escaped fugitive in violation of the seventh section of the act of Congress of 1850, the relators must be remanded.
It is true that the officer had procured and has returned with the mittimus a copy of the record. The mittimus itself, however, was and is his authority for holding the relators; it designates with sufficient certainty the cause of commitment; and the fact that eh officer has procured a copy of the record, and annexed it to the mittimus and made it a part of his return, does not alter our jurisdiction on habeas corpus. The District Court has exclusive jurisdiction if it have any; and we expect [them to] revise us upon error to motion in arrest of judgment, the sufficiency of the allegations of the indictment, the sufficiency of the allegations of the indictment or of the facts contained in it. No one would claim that the criminals who have been convicted of murder in the second degree and sentenced to the Penitentiary for life, could be discharged on habeas corpus, because the indictment contained no allegation of a purpose to kill; and ingredient of the offense, which this Court has held material and substantive, and which they have been unable to find in the forms heretofore used. So in this case, if, under any state of facts, a citizen could be indicted and punished under the 7th section of the fugitive act for rescuing a slave, although the other sections of the act in respect to the mode in which escaped slaves may be reclaimed were unconstitutional and void, we cannot on habeas corpus look into the indictment found in a Court, authorize to pronounce sentence for such an offense, and discharge, on account of the want of allegations which would have justified the Court in pronouncing the sentence, to arrest the judgment, or an appellate Court to reverse it. If Congress has no power to legislate at all, facts may exist in which the legal right of the owner is conceded even to the fugitive, independent of all legal proceedings and, interference might be punished.
The only ground, therefore, upon which the relators can be discharged, is to go behind the seventh section of the act, and maintain that Congress never had any legislative power under the Constitution of the United States to provide punishment for a person who rescues and escaped slave.
This position, if sustained by the Court, cuts up by the roots all laws, which have been passed, and all laws, which may hereafter be passed, by Congress, relating to the reclamation of fugitives. It not only disposes of this seventh section of the act of 1850, now under consideration, but the whole law.
Neither the case before us, nor the question thus broadly presented, requires us to consider or determine the powers of the Court to appoint commissioners, or the provisions of the law which have been the subject of discussion and condemnation, and which have so deeply agitated the public mind.
The question before us is, whether the seventh section of the fugitive law, under which these relators were sentenced, is a nullity, for want of legislative power in Congress, to pass any law whatever relating to fugitives from labor.
It will be perceived, then, that we have no question before us connected with the facts upon which the prosecution of the relators was founded; or the mode of selecting the jury; or the proofs; or the mode in which the trial was conducted; or the errors or imperfections of the indictment; or the constitutionality of any part of the fugitive act, except the seventh section, upon which the relators were sentenced.
These subjects have a deep meaning and an exciting interest to these relators and to the public. But they are not an issue, or the proper subject of discussion or argument in the determination of the question before us. They are, so far as these relators are personally concerned, trifling and evanescent, compared with the consequences which may result from the present action of this Court; for if these relators are discharged, it must be, I repeat, on the ground that the laws of 1793 and 1850 have always been void, and consequently that those and all other laws hereafter passed of any kind will now and from henceforth be persistently resisted by the State of Ohio. I say, henceforth persistently resisted, because it will be found, I think, that the same adjudication which determines that Congress has no power to pass any law, determines also a precedent, that the construction of the Constitution shall depend upon the shifting of private opinions of every judge in every State who is called upon to give it an interpretation, whatever may be the decision of the Supreme Court of the United States.
It must be conceded that the power of Congress to legislate on this subject is as a deliberately and fully settled by the decision of the Supreme Court of the United States as any other constitutional question that has been presented for its determination. Moore vs. State of Illinois, 14 How. 13; Jones vs. VanZandt, 5 How, 215; Prigg vs. Com. Pennsylvania, 16 Pet. 530; United States vs. Booth, 21 How. Rep.
That Court have held unanimously that inasmuch as the Constitution of the United States secures by express provision the right to the reclamation of escaped slaves, the obligation to protect and enforce the constitutional right devolves upon the general government. On the other hand it has been insisted that the rights of the master to his fugitive slave must be left to such legislation of the different States as they may deem just and expedient; and that the National Government is powerless to vindicate or protect his constitutional rights; others are of the opinion that that power to legislate is concurrent in Congress and in the States; others that the Constitution of the United States confers all the power necessary upon owners of slaves for their reclamation and that therefore neither Congress nor the States can legislate; others that the amendment to the Constitution, which secures freedom of religion belief, makes provision in relation to the reclamation of slaves subordinate to it, and by implication of no obligation upon those who believe slavery a sin.
The Supreme Court of Massachusetts has very fully discussed this question, and also the constitutionality of the fugitive slave law of 1850, and held that Congress had authority to pass a fugitive slave act. Thomas Sims’ case, 7 Cush. Rep. 185; Commonwealth vs. Griffith, 2 Pick Rep. 11.
The Supreme Court of Pennsylvania (Kauffmann v. Oliver 10 Barr. 5114; Wright v. Deacon 5 Serg. And Rawle, 62;) the Supreme Court and Court of Appeals of the State of New York (Jack v. Martin, 12, Wend. 311; same case, 14 Wend. 507; Ex parte Floyd v. The Recorder of New York 14 Wend. 180; Glenn v. Hodges 9 Johns’ Rep. 67;) the Supreme Court of Indiana (Graves v. The State, Smiths’ Indiana Rep. 258; J. Carter 368; Johnson v. Vanamringe, 2 Black, 311;) the Supreme Court of Illinois (Thornton’s case 11 Illinois Rep. 522; Eclls v. The People, 4 Seam. Rep. 498; Eamy v. Montgomery, Bre. 188;) the Supreme Court of California (In re Perkins, 2 Cal. Rep. 424) have all recognized the power of Congress to enforce by legislation the reclamation of escaped slaves.
The Judges of the Supreme Court of Ohio, in 1845-46 were Justices Wood, Burchard, Reed and Hitchcock. Three of these judges had this subject before them. The Supreme Court, in 1846, in regular session in Cuyahoga County, held by Judges Wood and Burchard, brought before them on habeas corpus, one Richardson, who was in custody on a charge of kidnapping; he having knowingly aided to carry one Berry, and escaped slave out of the State without taking him before a judge or justice of the county, and there establishing his right of property in Berry, agreeable to the laws of the United States. This was punishable as kidnapping by the laws of this State, passed in 1831, 29 vol. Stat., 122. Swan’s Stat. Ed. 1810, 600. The court after referring to the decision of the Supreme Court of the United States that all legislation on the subject of the reclamation of slaves is exclusively in Congress, held that the act in question, upon which Richardson was imprisoned, was null and void, under that decision of the Supreme Court of the United States. 19 Law Reporter, 216.
The power of Congress to legislate on this subject was very ably discussed, and was fully recognized by Reed, Justice of the Supreme Court of Ohio in 1845, the case of the State vs. Hopees, on habeas corpus, 2 Wes. Law Journal, 279.
The cases to which I have referred will be detailed and the rulings of the courts discussed by my brother Peck.
I have examined with some care, the reports of the decisions of the other States, and have been unable to find a single decision of any Supreme Court, of any State of the Union, denying to Congress the power to legislate upon this subject.
The cases decided by the Supreme Court of Wisconsin, have been cited as an exception to this uniform and unbroken current of authority sustaining the legislative power of Congress.
One of the three judges, which compose that Court held, that the fugitive laws were unconstitutional and void; but the majority of the Court did not participate in that opinion, but discharged the relator on the ground that the offense charged in the indictment did not contain a sufficient description of the statutory offense described in the fugitive slave law.
The General Assembly of the State of Ohio have also recognized, in statutes of the State, the fugitive slave law of 1793 as operative and in force. Swan’s sta. Ed. 1840; 599, 600, secs. 22, 27.
But treating this oversight as if no decision had ever been made by the Supreme Court of the United States or by any Court of the free States, how does the question stand?
If the Constitution of the United States had not been formed, and a Union of the States thus created, each as distinct States, would have had the right, under the fundamental law of nations, to have decided for itself upon its own internal condition and regulations in its own territories. If any of them while thus responsible alone to their own people, should have introduced slavery, other Nations or States would have had no just right to interfere, nor would the people of foreign States be responsible, politically or morally, for it. The Constitution of the United States was framed, and the Union perfected, subordinate to, and without violating the fundamental law of nations, to which I have alluded; and it would therefore have been in vain for the government of a free State interests that they would enter into no compact, because slavery is wrong and unjust. The people and the government of no one State of this Union are responsible, politically or morally, for the domestic institutions or regulations of the others.
In the compact of Union, the framers of the Constitution guaranteed to the owners of escaped slaves the right of reclamation. It is made a part of the Constitution – irrepealable – and to be changed only by the power that made it, in the form prescribed by it.
It was designed to be a practicable and peaceable mode by which a fugitive from service might be delivered up. It cannot be extended by implication; the fugitive must not only owe service or labor in another State, but must have escaped from it. This is the extent and the limit of the right of the master.
The Constitution of the United States went into operation in March, 1789.
In 1793, the second Congress elected under the Constitution of the United States, and composed of many of the members of the Convention, which framed the Constitution, and act was passed providing for the rendition of fugitives from justice, and a summary mode for the reclamation of fugitives from labor. But this act rescuers, obstructers and harborers of escaped slaves were to be visited with a penalty not exceeding five hundred dollars.
No jurist will deny that if Congress can provide a penal forfeiture for an alleged violation of law, they have the legislative power to super add imprisonment for the same offense; and that no court can pronounce the one constitutional and the other without legislative authority.
This law was passed by Congress without any trace in history of constitutional objection; has been ever since that time by every department of the government, national and state, not only received and acquiesced in as the law of the land, but in active, practical operation throughout every State in the Union. Enacted at the commencement of our government it has been in active operation for sixty-six years.
It is conceded by the counsel for the relators that if Congress have no power to legislate on this subject, they never had any power to legislate upon the subject of fugitives from justice. – The same reasons for holding that the one is a usurpation of legislative power, is equally fatal to the other. Both stand precisely on the same ground.
The Executive departments of the States of the Union have, I believe, acted upon, and I am not aware that any have denied the constitutionality of the law of Congress for the rendition of fugitive criminals.
It may now be will asked if such a long period of recognition and acquiescence is the existence of a law is to be disregarded and the law itself annulled, whether there be anything in our government so settled and stable, as not to be liable to attach and overthrow, to vacillation and change; and if after this misuse of time a new and yet untried experiment upon this and all other irritating questions of constitutional law is to be entered upon, and a precedent set by the judges of this court, that no question can be put to rest by time or acquiescence, when will the construction of the Constitution be settled and the land marks of the several departments of the government and the States be permanently fixed?
We have an unbroken and uniform current of judicial decisions recognizing the legislative power of Congress upon this subject to the present time.
If its authority is now to be resisted by the States; if her government is to repel by force now and hereafter, the authority of the United States, in the execution of any and every law upon this subject, odes it become the official conservators f the public peace, to break through those judicial sanctions which guided and limit their personal discretion, and are the only safeguards against arbitrary and capricious tyranny, and be the first to initiate such a civil commotion?
I am of the opinion, and I think the calm judgment of others will concur with the opinion, that in view of these decisions of the Supreme Court of the United States, settling the power of Congress – in view of the adjudications of the courts of the free States affirming the same power – in view of the acquiescence of all departments of the National and State governments during two generations – that the Judges of a State Court have no judicial right to interpose their own individual opinions upon a question thus disposed of – change the interpretation in what they believe it should be – overrule the adjudications of the Supreme Court of the United States and the State Courts – strike down the legislative power of Congress now and from henceforth – resist, and persistently, on the authority of their private judgment and judicial discretion thus assumed over the interpretation of the Constitution of the United States, the future exercise of all authority by every department of the National government and force upon the State of Ohio and its people, the maintenance of the authority of their own individual opinions as constitutional law.
It is said by the counsel for the relators, that those are two separate cases of habeas corpus, in which the court simply discharge two persons from what it thinks unlawful imprisonment; that their decision may be reversed on error by the Supreme Court of the United States, and there end. We do not think so. If we discharge those relators upon the annunciation of the principle that Congress has no power to pass any fugitive law, that principle becomes instinct with life and action throughout the State of Ohio, gigantic in dimensions and State governmental force, imperatively demanding obedience from every citizen and officer in the State and National government as the supreme law of the land, and practically nullifying any law hereafter enacted by Congress, however constitutional in its detail provisions it maybe.
It is not simply these relators this Court is dealing with, but also constitutional law. These prisoners can only be discharged by this Court declaring that Congress has no power to legislate. If this Court say that, do they mean it only as to these realtors, and that the acts of Congress have operation and effect in Ohio as to every body else? And if, after striking down the legislation of Congress in this case, will this Court wait until the Supreme Court of the United States have reversed their judgment, before giving force and effect in the law f this case? If this Court holds that the acts of Congress are void, they are inoperative, and as practically void, as if never enacted, from that moment, through every department of the State Government, whenever and however the question may arise. As to the National government, throughout all its departments, the power of congress to legislate, will be acknowledged and the laws held valid and in full force and binding obligation upon the people of Ohio, and with applying the decision of this court to the contrary, and whether a writ of error is shed out of this case to reverse our decision or not.
But it is said that the National government would be content to permit the laws of Congress to remain imperative in Ohio until their constitutionality could be examined into and decided by the Supreme Court of the United States.
Perhaps they would; for great forbearance is due from each sovereignty. But I am somewhat surprised that those who are so anxious for this Court to utterly disregard and repudiate and practically reverse the decision of the Supreme Court of the United States and the decision of the State Courts, mildly looking to the Courts to settle what has already been settled and determined by that Court, and declared by it to be without doubt or question.
I do not perceive how it can be seriously asserted that there is any question in this case which the Supreme Court of the United States would deem an open one for consideration or adjudication; nor can I perceive if the decisions of the Supreme Court are now to be disregarded, why they may not continue to be disregarded; and while the United States are engaged hereafter from year to year in obtaining the barren traits of reversals of the decisions of our State tribunals, the legislative power of Congress may not, in the meantime, be persistently denied and repudiated indefinitely.
When will this happy state of friendly litigation in the Supreme Court of the United States begin, if in the meantime, the power of Congress is denied and resisted as usurpation by the State of Ohio. Is the duty of the National government less imperative to enforce her authority and resist what she believes usurpation than the State government?
No government rule can be evolved by construction from the Constitution of the United States without practically becoming a part of the Constitution itself. Thus if, in Ohio, no laws can be passed for the reclamation of slaves by Congress, but laws on that subject may be passed by the General assembly; and in Illinois and the other free States which have acknowledged the decision in the Prigg case, laws enacted by Congress are exclusively operative, and the laws of their State Legislature are void; that no tariff law shall be operative in South Carolina, but shall be everywhere else valid; if in Mississippi and Alabama the law against the slave-trade is held unconstitutional and void and in every other State enforced, it will be seen the Constitution, by interpretation, will become different in the different States. Now if this can be done as to one provision of the Constitution, it can be done as to all others. Each State construing it in its own way, to promote its own local interest, what would the Constitution of the Unites become but a hydra of more than thirty hands, uttering Babel, and conflicting commands, such as each State in its own jurisdiction deemed it expedient to obey, or party strife demanded.
That this state of things was foreseen by the framers of the Constitution of the United States no one denies. That there is some remedy provided for it, all admit. The extent of that remedy has sometimes been questioned, and I do not propose to discuss it.
The Constitution of the United States declares “that the Constitution and laws of the United States, made in pursuance there of, shall be the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” This was the first step. The next was providing for a judicial department in the general government and declaring that “the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made,” &c., Art. III, Sec. 2.
Now, with respect to the boundary of jurisdiction between the Federal and State governments, I do not desire to say anything but this, that when Congress has undertaken to enforce, by legislation, a right guaranteed by the Constitution itself, after the power has been recognized by all the highest tribunals of the States of the Union, before whom the question has been presented; acquiesced in by the country for sixty-six years; and if superadded to these circumstances, the federal tribunal, in cases arising under the Constitution, repeatedly held that Congress have the power, it is too late for the Judges of the Courts of Ohio, upon their private judgment, to deny the power.
Again, without asserting myself the truth of the converse of all the following propostio9ns it is, I thin, clear that to maintain our right to do so, we must hold: 1st. That we have the power under the Constitution to determine this question in direct conflict with the settled interpretation of the Supreme Court of the United States. 2d. That we have a right to maintain by the power of every department of our State Government and to exact obedience as well from United States officers as from all the citizens of the State, to our interpretation of the Constitution. 3d. That this power, on our part, we have a right to exercise when it happens that a majority of our Judges are intellectually satisfied beyond any reasonable doubt upon their mines, from a review of the grounds upon which the federal tribunal and others adopted an interpretation of any provision of the Constitution of the Unites States, and they were mistaken. 4th and lastly. As we must maintain that we have the judicial right to overrule their previous adjudications and enforce obedience to our own, which are in conflict with theirs; so, subsequent decisions on error, overruling ours not being intellectually satisfactory to us, we may, in the exercise of the same judicial right and power, disregard them. For, the idea of first asserting the power in overrule their interpretation because we believe it erroneous, and afterwards submit to it, although still believing it erroneous, would be a most undignified and useless assumption of temporary power, merely creating agitation, and ending in nothing but submission.
It seems to me quite clear, that if the individual opinions of every judge is to become the exponent and construction of the Constitution of the United States whenever he feels certain that he is right, without regard to the highest tribunals of the country, then the individual opinions, of every judge, is the Constitution, not only to himself, but for the time being, to the country. This, it seems to me, is simply discretion without rule, guide, precedent, or limitation – unstable, capricious despotism.
Is there any judicial incident more common than for a judge to deny himself the individual discretion of declaring what he thinks even the unwritten law of the land should be, and hold his judgment amendable to the law as it has been decided? And is the Constitution to be less stable than the unwritten law? Is a judge to treat the settled interpretation of the Constitution announced to the country in a previous generation, by Congress assuming to legislate, sanctioned by an unbroken current of judicial decisions, as of the binding judicial obligation, and to be overthrown by the authority of his individual convictions that the Constitution should have a different interpretation? And if a State judge can thus, by his interpretation, alter the Constitution when it has received such acquiescence and sanction, what provisions of the Constitution, State, or National, are safe from change and altercation, under the assumption of such judicial power? They would be written upon sand.
For myself, I disclaim the existence of any such judicial power.
Two governments, State or National, over the same people, each exacting obedience within the sphere of its own sovereign powers, could not be adjusted without occasional conflict. But such a government, of more than thirty sovereignties, each jealous of the powers of the National Government, each interpreting for itself the powers of the national sovereignty and its own, and claiming powers denied to it by the States, each clashing and conflicting, and all demanding and enforcing obedience from the same people to their inconsistent and contradictory commands – such a government could have no permanence and would not deserve it. It would be the worst of all governments. If the federal judiciary is not the arbiter, created by the Constitution, to bring order and uniformity out of such confusion and anarchy there is none.
It is true the judicial department of the National or State government might, under pretence of an interpretation of the Constitution, be guilty of a n interpretation of the Constitution, be guilty of a palpable violation of its provisions demanding the impeachment and condign punishment of the judges; and it might be the duty of every other constituted power of the State and of the people to resist such reasonable practices.
And even conceding that it would be the duty of a State to deny the authority of the Supreme Court of the United States to enforce upon a State an interpretation of the Constitution, which palpably and clearly violated reserved rights of State sovereignty, is the anything in the history of the act of Congress, of 1793; the quiet and almost unanimous adoption of it by Congress; its long continued operation without objection to the authority of Congress to legislate; no State, after the lapse of sixty-six years denying the legislative authority, and recognized by every State in which the question has been raised; do, I say, such circumstances demand of a State Court to assume the power of disregarding the settle interpretation of the Supreme Court of the United States, and resisting the authority of the National Government.
It was said by Mr. Madison: “It maybe a misfortune, that in organizing any government, the explication of its authority should be left to any of its coordinate branches. There is no example in any country where it is otherwise.” 3 Elliott’s Debates, 532. And, I may add, it cannot be otherwise without intestine war or civil commotion.
The sense of justice of the people of Ohio has been shocked by some of the unjust provisions of the fugitive acts. It is not the authority of Congress to legislate that they deny, but it is the abuse of the power.
That abuse is to be remedied by Congress; and if the power is legislate is denied the question can be put an end to by repeal. It is the only constitutional mode left. The other alternative is intestine war and resistance of our National Government.
All must admit the owner of escaped slaves is entitled to their reclamation. Good faith to sister States demand it and there would be no resistance in Ohio to a fair and just law affecting that object. As to who shall legislate upon the subject, if the provisions of the law secures its exclusion from all abuse, and by whose instrumentality it shall be humanely carried out, is a question upon which no intense public feeling could be excited.
For myself as a member of this Court, I disclaim the judicial power of disturbing the settled construction of the Constitution of the United States as to the legislative authority of Congress upon the subject, and I must refuse the experiment of initiating disorder and governmental collision, to establish order and even handed justice.
I do not repeat here the judicial arguments sustaining the power of Congress, which have been pronounced by some of the soundest and wisest judges that have adorned the American bench; for it is my deliberate and confident conviction, (unswayed by my feeling as a citizen of a free State, when dealing as a judge with necessary strain upon the Nation Compact of Union and however much the argument for the denial of the authority my preponderate,) that the question has by time, acquiescence and a adjudication passed beyond the reach of judicial consideration of preponderance of argument; certainly beyond the reach of question before this Court.
As a citizen I would not deliberately violate the Constitution or the law by interference with fugitives from service. But if a weary frightened slave should appeal to me to protect him from his pursuers it is possible, I might momentarily forget my allegiance to the law and Constitution and give him a cover from those who were on his track – there are no doubt many slaveholders who thus follow the instincts of human sympathy. And if I did and was prosecuted, condemned and imprisoned, and brought by my counsel before this tribunal on a habeas corpus, and was then permitted to pronounce judgment in my own case, I trust I should have the moral courage to say, before God and the country, as I am now compelled to say, under the solemn duties of a Judge, bound by my official oath to sustain the supremacy of the Constitution and the law: “The prisoner must be remanded."