going entry is truly taken and copied from the | struction to be understood now, not as conferJournal of said Court. ring on Congress power to enact fugitive slave laws, but simply as a compact between the States that they would not exercise their sovereign power to prevent the reclamation of fugitives from service. In testimony whereof, I hereunto subscribe my name, and affix the seal of said [L. S.] Court, at Columbus, this twenty-first day of April, a. D. 1859. JAMES H. SMITH, Clerk S. C. District-Attorney Belden was not a little excited by the above notice. He was heard to threaten that the prisoners should not be taken to Columbus on a writ of habeas corpus from the Supreme Court of Ohio, and that they could not be taken to the cars save through the cannon's mouth! The bravado U. S. Officials evidently contemplate making the streets of our peaceful city bristle with U. S. bayonets! The U. S. District-Attorney cooled off enough however by evening to take the train to Columbus. Marshal Johnson remained to guard and wait upon his imprisoned witnesses, the kidnappers Jennings and Mitchell, and the convicted Bushnell, who was yesterday disgracefully decoyed from the county jail to the marshal's prison, a-la-fugitive John by the young villain Boynton. The opening of the case was delayed at the request of the District-Attorney, from Saturday morning until Monday morning. We have been able to find no better report of the arguments than is contained in the next two articles, the first of which appeared in the Daily Ohio State Journal of Tuesday the 26th of April, and the second in the same paper of the 27th. THE APPLICATION FOR HABEAS CORPUS IN THE RESCUE CASES.-The application to the Supreme Court of Ohio, for a writ of habeas corpus on behalf of the gentlemen now in prison in Cleveland for an alleged rescue of a fugitive slave at Oberlin, was argued yesterday. Rufus P. Spalding appeared for the prisoners, and the U. S. District-Attorney, Mr. Belden, of Canton, assisted by Noah H. Swayne of this city, for the United States Government. Mr. Spalding opened the case, and consumed the whole of the forenoon and a large part of the afternoon session of the Court in a matured argument. He contended that Congress had no power to enact either the fugitive slave law of 1793, or the amendment of 1850, but that if it was conceded or decided that the Federal Constitution gave Congress power to enact a law for the reclamation of fugitives from justice, then it transcended its power in the enactment of 1850. Mr. Spalding traced the history of the formation of the Constitution, and claimed that the clause respecting "persons owing service" was understood then, and ought by any fair con He claimed, in view of all the responsibilities in the case, Congress had no more power to enact a law for the arrest and return The argument, against the position he urged, was that it was expedient Congress should legislate to reclaim fugitives from service; therefore, it must have the power— necessary that Congress should legislate, because citizens of the free States abhor Slavery, and are unwilling to return fugitives to their chains. There was no difficulty in reasoning upon slavery. It would seem that men were blind almost any other subject than this one of negro on this infernal subject, but to him, it was clear that only a fair knowledge of the English language and ordinary common sense was required to understand that under the Constitution of the United States, Congress could exercise no power imposing pains and penalties on citizens of the States for doing what was neither in violation of the laws of those States, nor of the laws of God. Whatever power there was belonged to the States. They had never delegated any part of it to Congress. He asked that the Supreme Court of Ohio should critically examine all the questions involved in the application now made to it. Let the whole responsibility be met. He planted himself, as counsel for the prisoners, on the Constitution of the United States, and of the State of Ohio, and there bid defiance to any constructionists. If citizens were to be confined for acts of benevolence, let it be done in a constitutional manner. It was important to the people of Ohio that they should know what rule of action was imperative upon them. Wisconsin had boldly taken its position. The U. S. Supreme Court had reversed the decision of the Wisconsin Supreme Court, but the Wisconsin Legislature had instructed the Court to maintain its position. He had no doubt of the final result. There was a growing senti- the arguments of counsel on both sides of this ment that State rights must be maintained. important case. Mr. Spalding read numerous speeches and historical statements in support of the positions we have reported, and concluded by demanding that as the U. S. District Court was acting without jurisdiction, the citizens in its custody should be discharged. Mr. Spalding was responded to by the District-Attorney, Mr. Belden. At the conclusion of his argument the Court adjourned till nine o'clock this morning, when Mr. Swayne will speak. Mr. Belden understood that there was no question before the Court but the simple one of the constitutionality of the Fugitive Slave Law of 1850. If that law was constitutional, the prisoners were properly in custody. Mr. Spalding said he rested the case on that point, but had designed to call the attention of the Court to the fact that the Ordinance of 1787 made a discrimination respecting fugitives from service, in one of the original thirteen States. Mr. Belden said that the Ordinance of 1787 was superseded by the Constitution of the United States, and had no vitality but such as was given it by acts of Congress. He would not stop to argue that point. He would confine himself to the question Will the Supreme Court of Ohio allow a writ of habeas corpus in favor of individuals held under a law of the United States? He would present authorities and argue that State courts cannot interfere with Federal officers, who held persons in custody under the fugitive slave law. Against the position of the counsel for the prisoners, were authorities of State and National Courts, of Legislatures and of Executives. He had but one decision in his favor, and that was by a divided Court. History was against the argument of the opposing counsel as well as the authority of Courts. The Constitution of the United States was obligatory alike in all the States, and until modern agitations prevailed, the exclusive right of United States Courts in cases under examination, was not questioned. Mr. Belden deprecated earnestly a condition of things in which State Courts would conflict with each other and with the U. S. Courts in expounding the federal constitution. He held that Congress had no power over slavery, and no power to enlarge or limit freedom that the Scripture doctrine "do unto others as you would be done by," did not forbid slavery that the demand of the opponents of the fugitive slave law for trial by jury was preposterous, and that when men turned up their noses and declared the law obnoxious, he had only to say it is the law. It is in the Constitution let the laws be maintained. The argument of Mr. Swayne will be heard this morning with much interest. We will give our readers the points presented in our next issue, but may thereafter publish more in detail THE APPLICATION FOR HABEAS CORPUS IN THE RESCUE CASES. The argument before the Supreme Court was concluded yesterday at noon, and the Court adjourned to Thursday morning. Noah H. Swayne, Esq., on the part of the U. S. Marshal, occupied the forenoon with an able, lawyer-like argument, citing the cases in which the fugitive slave law had been held to be constitutional by both federal and State Courts, and arguing that with so many decisions in its favor, and but one, the recent decision of Wisconsin, against its constitutionality, the question ought to be regarded. as settled. He argued also, the question of constitutionality, de novo, without regard to adjudications, and held that the constitutional provision, that fugitives should be given up, granted to Congress all the powers requisite to carry out the provision. While he claimed that the law was constitutional, he did not assume to defend the policy of enacting so stringent a law, nor deny that great wrongs might grow out of it; wrongs which would be insufferable. Such was not yet the case, and therefore there was no such case for this Court to consider. When that emergency arrived, the emergency itself, as was always the case, would beget the proper remedy; the right of revolution was the only resort of the people when their wrongs from this law become intolerable. Judge Spalding, for the applicants, occupied but about fifteen minutes in a forcible and eloquent rejoinder. He referred to the importance of the case now before the Court, involving the liberties of thirty-seven citizens of Ohio, while all the cases cited by the opposite counsel were raised by the capture of some fugitive slave who was already far on his return South when the question of constitutionality of the law was ad judicated, and urged the Court to give it that consideration that its consequence demanded. He argued with great force that if wrongs might grow out of the execution of the law that would justify the resort to the remedy of a revolution, it was of the most momentous importance that the resources of the Courts should be carefully investigated, and all legal remedies exhausted, before abandoning the case to so terrible a remedy as revolution. He referred to the standing of the citizens now incarcerated in the jail of Cuyahoga county, including all classes, clergymen, prófessors of colleges, doctors, lawyers, merchants, and others, representing the best people of the State; that this was no case lightly to be disposed of by our prejudice or indifference towards an inferior race, but one involving the liberty of a large number of the first citizens of Ohio; and alluded to the announcement in the newspapers that the United States war-steamer Michigan had been ordered by the President to the port of Cleveland to overawe the citizens with her guns, and provide a prison-ship for these captives, beyond the reach of process from the State Courts. for an alleged violation of a law of the Congress of the United States, respecting fugitives from service, passed September 18, 1850; that the relators are charged in said indictments with the rescue, and the aiding and abetting in the rescue of a fugitive from service; and that the proceedings under said indictments are still pending and undetermined before said District Court. The case has assumed a momentous importance. The fundamental principle of the law, making a crime of an act which is an honor to humanity, and which in such circumstances as existed at Wellington can hardly be avoided without debasing human sentiment lower than The separate application of Simeon Bushnell, brute instincts; the odious and tyrannical sever- indeed, shows that he has been tried upon said ity of the law; the star-chamber character of indictment and found guilty, and is now in custhe indictment and the trial; the low partisan-tody, awaiting the final judgment and sentence ship of the Judge; his coarse and indecent stump of the Court. That on being arraigned upon speech charge to the Jury; the determination said indictment before said District Court, he, of the District-Attorney that none but a parti- by his counsel, moved the Court to quash the san Jury should try the case; the unmanly ser- same for various reasons, one of which was, vility of the United States Marshal to the that the law of 1850, upon which it was based, pleasure of a malignant President; packing is unconstitutional and void; which motion the juries to indict and try; not trying a man by a District Court refused to grant. A motion to Jury of his peers, but by a Jury of known quash addresses itself to the sound discretion of flunkies; his vanity, which leads him to aggra- a Court, and is never granted, except in very vate the difficulty to magnify his own impor- clear cases, but the defendant is left to raise tance, and which endangers a collision between the question in a more formal way, by demurthe citizens and the Federal officers; the offen-rer or motion in arrest of judgment. The resive attempt to intimidate the citizens by a gov- fusal to grant cannot be regarded as a final ernment war-vessel; all these, and many other decision of the question raised by the motion, circumstances and considerations have combined when the point is one which, if well taken, to excite an unprecedented feeling among the would be available on demurrer or in arrest of citizens of Northern Ohio, and make this ques-judgment; indeed, such motion should never tion by far the most important ever brought be fore the Supreme Court of this, or perhaps any other State. Grave consequences hang on their decision. We are confident that the question will receive that consideration which its importance demands; that it will be decided strictly on legal principles, and that the Court will shrink from no responsibility which duty involves. The Court took the case under advisement, and on Thursday, the 28th, rendered the following decision: SUPREME COURT OF OHIO. Hon. Joseph R. Swan, Chief Justice, and Hon. TUESDAY, April 23, 1859. In the matter of the applications of Simeon Bushnell, Charles Langston, and others, for a writ of habeas corpus. PECK, J. It appears from the petitions filed in these cases, that all of the relators who ask for the allowance of the writ of habeas corpus are now in the custody of the United States Marshal for the Northern District of the State of Ohio; that they are thus in his custody under and by virtue of a mittimus regularly issued by the District Court of the United States for the Northern District of Ohio, on indictments preferred against them in said District Court, be granted, if the question is, in any degree, doubtful, but should be reserved for hearing on motion to arrest the judgment. No judgment or sentence having been pronounced, and the question of jurisdiction being still an open one before that Court, we do not think the case of Simeon Bushnell, as to the question of jurisdiction, distinguishable, in principle, from that of the other relators. Is it then legally competent for this Court, to withdraw the relators from the District Court, in the custody of which they now are, charged with the violation of an Act of Congress, while the proceedings against them are still pending and undetermined, and discharge them on the ground that the Act of Congress upon which the indictment is based, is unconstitutional and void? The District Court now has possession of the case and the parties to it, and has the legal power and capacity to hear and determine for itself, the question of its own jurisdiction and right to act in the premises. The legal presumption in such cases always is, that a Court thus assuming to act, will determine the question of its own jurisdiction correctly, until it has acted finally upon it. Hence it is a rule founded upon the comity which does, and for the prevention of unpleasant collision, should always subsist between judicial tribunals, that, where a court of general jurisdiction and legally competent to determine its own jurisdiction, has acquired prior jurisdiction de facto over person or subject-matter, no other Court will interfere with or seek to avert its action, while the case is still pending and jurisdiction which they, in the first instance, undetermined. This rule is sustained and sup- must decide for themselves. Subsequently, the ported by all the analogies of the law. See prosecution having terminated by a conviction Smith v. Iver, 9 Wheaton, 532; Hagan v. Lu- and sentence of imprisonment, the same Court cas, 10 Peters, 400; Taylor v. Carryl, 20 How. allowed a writ of habeas corpus, and discharged 594; United States v. Morris, 2 Am. L. R., 351; | Boothe for alleged defects in the indictment, Exparte Robinson, 6 McLean, 363; Keating v. which did not bring the counts upon which he Spink, 2 Ohio State R., 105. Hurd on Habeas was convicted within the purview of the act of Corpus, 199, et seq. Congress of September 18, 1850. We refer to these cases in Wisconsin with no design of expressing our assent or dissent to the decisions under the first and last writs of It is right in principle, and preventive of unpleasant collision between different tribunals. If another tribunal were thus to interfere with our action and withdraw from our cus-habeas corpus; but merely to show that a Court tody a prisoner upon trial before us, and set him at large, we should resist such attempt to the uttermost. And shall we not extend to other tribunals the comity and the same confidence that we claim for ourselves? In the recent cases in the State of Wisconsin, and which have attracted so much attention and remark, this point was expressly decided, and that, too, by the same Court which determined the fugitive slave law to be unconstitutional. Ex parte, Boothe, 3 Wis. Rep. 155. which had judicially decided the law to be unconstitutional, still held that in a case like that under consideration, they had no legal right or authority to interfere. On the whole, we are unanimously of the opinion that the relators, upon their own showing, admitting the law in question to be unconstitutional and void, could not be discharged by us, if the writ had been issued, and they were now before us for deliverance. It would be an idle and expensive ceremony to award the writ to bring the parties here, and for the time, intercept the proceedings in said District Court, when our next duty would be to remand them into the custody of the officer who now holds them. The application for writs of habeas corpus in behalf of the relators, is, for the reasons stated, refused. Congress adverted to, and the right of the State tribunals to interfere with the final action of the District Courts in that behalf, altogether unnecessary. Swan, C. J., and Brinkerhoff, Scott, and Sutliff, JJ., concurred in the foregoing opinion. We return again to the U. S. Court. The history of this case is as follows: Boothe had been arrested on warrants granted by a United States Commissioner, for aiding in the escape of a fugitive slave from service contrary to the law of 1850. One of the Judges of the Supreme Court of Wisconsin upon habeas corpus, discharged Boothe from the custody of the marshal, on the ground, that the law of 1850 as to fugitive slaves, was unconstitutional, This view of the case renders an examinaamong other things, in authorizing Commission- tion of the other propositions mooted in the arers so to act and issue warrants, and that a war-gument, as to the constitutionality of the Act of rant issued by such officer was illegal and void, and a majority of the Supreme Court of that State on certiorari, affirmed the judgment. Boothe was subsequently indicted in the District Court of the U. S. for the State of Wisconsin, for the same offence, and arrested by the marshal on a warrant issued thereon. Boothe thereupon applied to the same Supreme Court then in session, for a writ of habeas corpus to be delivered from the custody of the marshal; but the writ was unanimously refused, on the ground that it appeared from the application, that he was under arrest upon indictment of a Court having jurisdiction of alleged offences against the United States, and that the case was still pending and undetermined. That Court decided that they had no legal right to interfere in his behalf while the prosecution was pending, even though the law of Congress under which he was indicted, was unconstitutional and void; recognizing, in its fullest extent, the principle and practice of judicial Courts to which I have adverted. They concede the privilege and right of the District Court to determine first and for itself, the question of its own jurisdiction, and in reply to the claim, that the law was unconstitutional and void, and that, therefore, the District Court could not have any jurisdiction, very aptly remarks, that that fact, if true, amounts, after all, to a question of On the coming in of Court, it was stated by Judge BLISS, associate Counsel for the Government, that District-Attorney Belden was in attendance upon the Supreme Court at Columbus, where was to-day to be argued the motion for a writ of habeas corpus. Thereupon the Court said a postponement of the case would be granted until Wednesday morning, the 27th inst., at 9 o'clock. The Government then asked the Court to nolle the indictments found against Oliver S. B. Wall, and against James R. Shepard, for the reason that the Grand Jury had seriously misspelled the defendants' names. entered on each indictment, and the defendants ordered to be released from jail. The nolle was It is but proper to remark here that the tence might be pronounced at the earliest conMarshal notified the Court, not only in the in-venience of the Court. dorsement upon his warrant, but orally, and with explicit emphasis, upon the first appearance of the defendants, that these errors in the indictments were so serious as to be undoubted this cause. ly fatal; and farther, the counsel for the defence at once entered pleas of abatement for The defendants were, nevertheless, obliged to enter into recognizances for appearance and trial, and in all other respects put to the same inconvenience and expense, and treat ed in the same manner as their differently circumstanced associates. When the causeless order to prison was given, the attention of the District-Attorney was again called to these misnomers, to which the prompt and emphatic, if not so elegant, response was "Go 'long!" Eleven days afterward, no farther or other notice having been served by the defendants, but when it was expected on the one side and feared on the other, that the Supreme Court of the State were about to make an official investigation of the cases, a telegram came from Columbus to Judge BLISS, ordering the speedy discharge of the misnomered prisoners. The Court met on Wednesday, the 27th, pursuant to adjournment. The counsel for the relators at Columbus having returned, every thing was ready for the continuance of the trial, until Judge BLISS informed the Court that the District-Attorney had not yet returned, and the Government found it therefore necessary to ask a farther adjournment; which was granted, and the Court took recess for twenty four hours. The COURT replied, that the matter would be taken into consideration, and that the time he had been in jail since his conviction would be taken into account. George B. Barber. Live at Wellington. Did Sept. 13, 1858. Was at home on that day. Not far from two o'clock the crowd first commenced to assemble at the Hotel. I heard about this time, that there was a fugitive then in the hands of the Southerners. Some wanted to buy him. Some one said they brought him from Oberlin. Watson then came up the steps to the door of the Hotel. Saw defendant there, between three and four, P. M., in the lane. He was going up stairs, or going into the house. There were a good many in the passage. Some standing and looking on, some passing back and forwards. When I first saw defendant he was ten feet from back porch. Think he was handing a gun to another man near there, a man from Oberlin, when I first saw him. May be mistaken about his having a gun. He had his hand on a gun and another man had hold of it too. He may simply have put his hand on the other man's gun. Defendant then passed on to the porch towards the door. It may have been an hour from the time Watson came up, to this time. Saw defendant again in the passage-way. He then came out of the house, and another man with him, say half an hour after the first. The man with Heard that his name was Patton. The other him as he came out wore a broad-brimmed hat. man said he had seen the papers and believed they were legal. This was said in defendant's hearing, I think. He was very near. man said he "believed the papers were all correct. That the only legal course now was to send to Elyria for a habeas corpus to take John." But he said he "understood they had for the sent to Cleveland for the military hands." He said "it would take some time to Cleveland Grays; and now it is in your own go there and back, and it would then be too late." He then went out in front and addressed the crowd. Defendant was either ten or fifteen with the crowd. Heard him say to them that feet from this man. Thought he was talking they had better pursue a legal course if they could. Think this man was not so full in the face as Patton, but he might have been. Defendant was at this time twenty or thirty feet from the door. This I think was an hour and it may have been more before the Rescue. There was a good deal said by the crowd. Some said that he should never be taken back South - that they would tear the house down This that the "Hook and Ladder Company" of Oberlin were on the way there to pull down the house. A good deal of excitement. Saw John first through the window in the Bar Room. Saw a paper in De Wolf's hand. Don't know what it was. |