The Cleveland Daily Herald

Cleveland, May 26, 1859

The Habeas Corpus Case.

Columbus, May 25, 1859.

      At 10 o’clock A.M., all the judges of the Supreme Court being present, Judge Swan presiding, the case upon Habeas Corpus of Bushnell and Langston, relators, was opened. The Court Room was filled, and in the audience I noticed quite a number of eminent lawyers from different parts of the State.

      In the case of Johnson, the jailor of Hamilton County returns the facts only of his commitment and the authority of the same, not producing the body of Johnson, who has not been sentenced.

      Mr. Riddle opened the case of Bushnell and Langston, who, with Sheriff Wightman, were in Court. You know how impossible it is to report a strictly law argument, even in synopsis. Such, in the judgment of able lawyers, Mr. Riddle’s effort was in this case.

      He stated that the applications for the Writs alleged imprisonment without legal authority.

      The return sets up a record of the U.S. District Court for the Northern District of Ohio, showing imprisonment under a sentence of that Court, for a rescuing a slave, bolden, &c., under the Act of Sept. 18, 1850, viz – the Fugitive Slave Act.

      “We claim,” said Mr. Riddle, “in the face of this record and against this seal, that the imprisonment is illegal and this judgment a nullity. Because –

I.               The alleged Law is not law:

1.      Under the Constitution of the United States, Congress had no power to legislate upon this subject:

2.      Conceding the power to legislate, Congress had no power to pass the act in question.

3.      If the act be constitutional, no crime is charged under it, or shown by the record exemplified in the return.

4.      The Act of Sept. 18, 1850, contravenes the Ordinance of 1787, the antecedent and superior obligation, and is therefore void.


      We are concluded, it is claimed by cases adjudicated; walled in or hedged out by former decisions of the Supreme Court. I suppose, may it please the Court, that no decision of the Supreme Court of the United States can make a law valid which contravenes the Constitution of the United States. Such decision gives the rule of the case immediately pending; it is, between the parties, a judicial estoppel, but no more than that.

      Mr. Riddle then referred to some of the leading cases in which this and related questions had been adjudicated.

      Prigg case, 16 Peters 611; Vanzant case, 5 Howard 215; Moore’s case, 14 Howard 13; Sinner’s case, 7 Cashing - .

      The recent case of Booth, the Wisconsin case, Mr. Riddle referred to, but remarked that he presumed the Supreme Court of Ohio would hardly deem it necessary to resort to the columns of newspapers however veracious, for Judicial decisions or precedents.

      These cases do not conclude us, because

1.     These decisions are the rules for those cases only, and do not make law of the land. The Prigg case does not decide the constitutionally of the Act of 1793, or the power of Congress to legislated on the subject. It affirms that the master has the right, unaided by law to recapture his fugitive slave, and that the act of Pennsylvania, imparing such right, is unconstitutional.

2.     The Supreme Court of the State is of necessity the Court of last resort, in questions concerning the personal rights of citizens. Without attempting to define sovereignty, it is clearly one of the attributes of sovereignty, to determine the rights of those from whom she claims allegiance and to whom on the other hand she owes protection.


      The Constitution of the U.S. is not wholly made up of compromises. There are three provisions, which may be properly called so:

1.     Between the large and the small States.

2.     In regard to the representation of the slaves.

3.     As to the slave trade.

      The clauses respecting the surrender of fugitives from service is not a compromise.

      The Constitution contains grants of powers to Congress, compacts between the States, prohibitions upon t he States.

      We are to search the instrument for a grant to Congress of power to legislate on the subject of slavery. No such grant is to be found. Slavery is not national and hence it is not one of the subjects within the purview of national legislation power. It is purely local, the creature of local law, and hence did not naturally belong to the class of subjects on which Congress was to legislate. All presumptions are against slavery, and all presumptions must be against the existence of any law authorizing slavery.

      On the very portals of the Constitution are inscribed its objects, among which is this, “to secure the blessings of LIBERTY to ourselves and our posterity.” The tenth amendment to that instrument prohibits to the General Government and reserves to the States the exercise of all powers not expressly granted.

      Neither in the general grant of power – Art. J., sec. 8 – nor in any special clause of the instrument is there any express grant of power to legislate upon the subject of slavery.


      Sec. 1 is taken or condensed fro the Articles of Confederation. It stood there an article of compact with no grant of power. On being transferred to the Constitution, a grant of power to legislate for its enforcement.

      Sec. 2 is composed of three clauses, each of which is an article of pure compact. These are unaccompanied with any grant of power, clearly as necessary if the power were intended to be given as in Sec. 1, where it is given in express words.

      Congress had no power to pass THIS Act:

1.     It violates the rights of personal liberty. If the Constitution refers to slaves at all, it is as PERSONS, and applies to ALL persons. A law pursuant to it must treat them as PERSONS, and hence embrace ALL persons, and place ALL without the protection of the law, as this does by permitting any party who claims to be the owner power to seize any person whom he is disposed to claim as his slave.

      The presumption of a person’s freedom is as lasting as that of the innocence of a person accused of crime. It lasts to the very moment of his conviction, in the one case, and until it is established with like certainty in the other, that he is a slave.

2.     The Act of 1850 is unconstitutional in that it invests Commissioners appointed by the Circuit Court of the U.S. with judicial power.

      This law is unconstitutional in authorizing persons to be seized and deprived of their liberty, and carried out of the State, without due process of law. It violates Articles 5 and 7 of the Constitution.

      Omitting (for both your space and mine require it, the minutiae of the argument and even some important propositions) I may say that Mr. Riddle acquitted himself well, in a compact, logical, and lawyer-like argument. The opinion of others coincides with my own, that it was worthy of the cause, and highly creditable to the accomplished advocate.

      The Court adjourned till half-past two P.M.

      At the meeting of the Court after dinner, Col. Swayne, for the Government, stated to the Court that on consultation it had been decided by the counsel that they would submit the case upon the printed brief, which was presented to the Court, and without oral argument. That the merits of the whole question had been fully argued at the former hearing, and counsel did not wish to repeat themselves. They took this course upon these considerations and without the slightly disrespect felt or intended towards the counsel for the relators.

      Mr. Attorney General Wolcott said he appeared in the case, not as the Attorney of the relators, but by direction of the Executive and on behalf of the State. He asked leave of the Court, in that capacity, to address them. His argument occupied two and a half hours, and or close LOGID, and legal, if not mathematical demonstration, was never surpassed. I have very full notes, but of course cannot write them out in time for your case. I may say, what all others say, that in point of massive, convincing unanswerable logic, no effort at the bar of our Supreme Court, which I have ever witnessed, has excelled this of our Republican Attorney General.

      I send you the printed brief of Messrs. Belden and Swayne.

Yours, A.H.L.