The Cleveland Daily Herald

Cleveland, April 23, 1859

What Will Our Supreme Court Do?

      The most important step yet taken in the progress of the rescue Cases is that of asking from the State Supreme Court the writ of Habeas Corpus. If the writ shall be granted the issue between the Federal Court and the State Court will be distinctly made.

      In no State Court, save Wisconsin, has the constitutionality of the Fugitive Slave Law been raised and decided so as to bring the officers of Federal and State Governments in contact. The Supreme Court of that State granted a writ of Habeas Corpus by which a person condemned in the Federal Court, under the Fugitive Act, was brought before the State Court and by the latter Court discharged from custody on the ground that the Fugitive Act is unconstitutional. The United States Supreme Court reviewed that action and held that the State Courts had no jurisdiction in the matter. But we are not informed that the Federal Court has ever attempted, in that case, to enforce its decree, since that action of the State Court.

      There are reasons why a decision upon this point by the Ohio Supreme Court will carry with it much greater weight than the Wisconsin decision, and we look for that decision with very great interest. Whichever way it may be, the decision will be entitled to the respect of all men, and in that decision we know the majority of the people of Ohio will cheerfully acquiesce. We sincerely hope the decision of the Judges will be unanimous, for a divided Bench materially weakens the moral force of an edict.

      The Court is composed of Judges Swan, Peck, Scott, Brinkerhoff, and Sutliff. The political antecedents of the first and fourth were Democratic, of the second and third, Whig, and of the fifth, Free Soil or Liberty party. We speak of these gentlemenŐs party affinities before the organization of the Republican Party. They are all good lawyers and the first two rank among the most gifted of American jurists. The honesty of this Court cannot be questioned.

      Usually, as we understand it, the issuing of the writ of Habeas Corpus is an ex parte matter, the writ issuing as a matter of course upon the filing of a proper affidavit by the party held in custody, and the merits of the case are heard and decided when the writ is returned. But in this case, the Court, very properly, has departed from the ordinary course and has made a rule by which the Federal officers are cited to appear and show cause why the Habeas Corpus shall not issue. This course is eminently proper, inasmuch as the question is one of the gravest nature, and the mere issuing of the writ would cause intense excitement. It is much better, therefore, that the merits of the question should be presented, argued and considered, upon the motion of the granting of the writ, than after the issuing of the process.

      The excitement growing out of the act of the United States Marshal when the report was current that a writ of Habeas Corpus had already been issued, in removing Bushnell from the custody of the Sheriff, in the jail, to the immediate custody of the Marshal, in the government building, was very general and very deep. It was taken as an intimation that the Federal officers were determined to resist the service of the writ of Habeas Corpus from the Supreme Court, and as a further intimation, in that direction, the Plain Dealer stated that the State had released entire jurisdiction over the government lot to the United States. We are informed that District Attorney Belden advised this course, as to Bushnell, but we are not prepared to believe that he, or the Marshal, will defy the process of the State Court. Ohio, when she released her right of taxation, &c., over the lot purchased by the Federal Government, expressly reserved the right of executing her process thereon, and no man can be so insane as to suppose that a writ from the state Supreme Court will not be executed at all hazards. We should tremble on seeing any obstruction laid in the way by a Federal officer, of perfect obedience to a State mandate, for the issue, though lamentable in its consequences, could not be doubtful; particularly in a case connected with the Fugitive Law.

      But we anticipate no collision. If the Supreme Court denies the writ, all goof men will cheerfully acquiesce; if that Court grants the writ, we have no doubt the Federal officers will yield it cheerful, manly, ready obedience.