# Ex parte Bushnell > Ohio Supreme Court · May 15, 1859 · 9 Ohio St. (N.S.) 76 URL: https://www.frixlaw.com/law-library/cases/8338659 ## Case - **Full name:** Ex parte Simeon Bushnell. Ex parte Charles Langston - **Court:** Ohio Supreme Court - **Decided:** May 15, 1859 - **Citations:** 9 Ohio St. (N.S.) 76 - **Precedential status:** Published - **Opinion:** Dissent by Sutlot - **Judges:** Brinkerhoep, Brinkerhoff, Peck, Scott, Sutlipp, Sutlot, Swan - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8338659 ## Opinion text Sutlot, J. I am unable to concur in the opinion expressed by the majority of the court, that the relators are legally imprisoned; and I will here express the reasons of my dissent. While the minority of the court differ with the majority in the conclusions to which they have arrived, I believe there is no difference in our views upon those propositions constituting the premises-from which the conclusions I arrive at are deduced. We all agree that if the act of Congress under which the relators have been convicted is unconstitutional, their imprisonment is illegal, and they ought to be discharged. We agree also that the federal government is a government of limited and enumerated powers, and that it can only legislate over the lives and liberties and interests of the citizens of the states to the extent and within the limits of the powers delegated to it under the constitution. It is further agreed by us that if the power to enact the fugitive *act of 1850 has not in fact been delegated by the states under the constitution to Congress, the same having in such case been enacted without power by Congress, is void. Again, we agree that if the provisions of this act are in conflict with, or repugnant to, any provisions of the constitution of the United States, even though power had been delegated to Congress *184 to pass a fugitive law, still,-in such a case, the act would be iu that regard unconstitutional and void. In either of the cases supposed, we all agree that the act, although having the form of law, should be regarded as unconstitutional, and the imprisonment of the relators consequently illegal. And in such case, under the application of the rule laid down by this court in Ex parte Shaw, 7 Ohio St. 81 , the relators would be entitled to relief from their imprisonment by habeas corpus. Starting from these premises in which we all concur, I am unable to arrive at the'conclusion expressed by the majority of the court, that the relators are not entitled to a discharge from imprisonment. I concur fully with the proposition that we can not take notice of any irregularities, if any appeared in the proceedings of the district court, nor have we any power to revise the judgment of that court. ¥e can only discharge the relators upon finding them illegally- imprisoned. If their imprisonment is one under a judgment of a court having jurisdiction in the case, the judgment is obviously valid until reversed, however irregular the proceedings. But on the cpntrary, if the imprisonment is under the judgment of a court having no jurisdiction in the case over them, the relators are illegally imprisoned. . For in such a case the whole proceeding would be void, and the judgment a nullity. Nor would there be any difference between the case of a court proceeding to give judgment without its'jurisdiction upon a valid law, and ^proceeding within its territorial jurisdiction to give judgment upon an utterly invalid statute. It is insisted on the part of the relators that Congress had no power to pass the act under which judgment, has been pronounced against him; and that, therefore, their conviction and imprisonment are void, in the same sense as if Congress had passed any other police law over the citizens of a state without authority, and they had in like manner'been imprisoned under the same. The principal question, then, upon which this case ought to turn, is, had Congress power to pass the act under consideration, and by force of which the relators are imprisoned? If Congress had power to pass the act, the imprisonment, for the purpose of this inquiry, should probably be regarded as legal, and the prisoners remanded. If Congress had not the power, the act is void, and the imprisonment consequently illegal, and the prisoners ought to be discharged. *185 It being admitted that the power to legislate upon the subject under consideration belonged originally to the states respectively, .and that if it was in fact held by the federal government at the time of enacting the law in 1850, it was derived from the states by some provision contained in the constitution, it is incumbent upon those •claiming the power for the federal government, to show a title, with reasonable certainty. And this can, obviously, only be shown by the same evidence of title that any other cession of property or power from the state to the general government could be shown. The instrument under which the cession is claimed must be the only •evidence, as a general rule, to substantiate the claim of title. ■ It has been well remarked, by Justice Story, that “ much of the •difficulty which has arisen in all the public discussions on this subject, has had its origin in the want of some uniform rules of interpretation, expressly or tacitly agreed on by the disputants..... In short, the rules of interpretation have often been shifted to suit the emergency; *and the passions and prejudices of the day, •or the favor and odium of a particular measure, have not unfrequently furnished a mode of argument which would, on the one hand, leave the constitution crippled and inanimate, or, on the other hand, give it an extent and elasticity subversive of all rational boundaries. Let us, then,” he continues, “ endeavor to ascertain what are the true rules of interpretation applicable to the constitution, so that we may have some fixed standard by which to measure its powers and limit its prohibitions, and guard its obligations, and enforce its securities of our rights and liberties.” The learned commentator then proceeds to lay down the following rules : “ 1. The first and fundamental rule in the interpretation of all instruments, is to construe them according to the sense of the terms, and the intention of the parties. “ Where the words are plain and clear, and the sense distinct and ■perfect, arising on them,' there is, generally, no necessity to have recourse to other means of interpretation. It is only where there is ■some ambiguity or doubt arising from other sources, that interpretation has its proper office. “ 2. In construing the constitution of the United States, we are, in the first instance, to consider what are its nature and objects, its scope and design, as apparent from the structure of the instrument viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation, and *186 it should therefore be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil; . . . . and whenever it is a question of power, it should be approached with nflnite caution, and affirmed only upon the most persuasive reasons.” Again Judge Story says, in speaking of the constitution being established: “They have made it a limited ^government. They have defined its authority. They have restrained it to the exercise of certain powers, and reserved all others to the states or to the people.” Speaking of contemporaneous interpretation, he says: “It is obvious, however, that contemporary interpretation must be resorted to with much qualification and reserve. In the first place, the private interpretation of any particular man, or body of men, must be open to much observation. The constitution was adopted by the people of the United States, and it was subinitted to the whole people, upon a just survey of its provisions, as they stood in the text itself.” . . . “Nothing but'the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority which should operate an absolute limit upon the text, or should supersede its natural and just interpretation. Contemporary construction, when properly resorted to, can,” continues he, “never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.” These rules and remarks of this learned commentator are all only to the effect that the same rules are applicable to the constitution as to other instruments of writing, to ascertain their real meaning. In the first place, if the meaning is fairly deducible from the language used, then the well-known maxim applies that it is not allowable to interpret what has no need of interpretation. Let us, then, in the light of authority and reason, recur to the constitution, and see if it maybe determined, from the plain meaning of the text thereof, whether the states have thereby delegated to the federal government the power claimed. The power is claimed to have been delegated by the states under the second section of article 4 of the constitution, which provides as follows: *187 *“ Sec. 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. “ A person charged in any state with treason, felony, or other-crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the'state having jurisdiction of the crime. “ No person, held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or-regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom: such service- or labor may be due.” No argument is needed to show that the'power of legislation is not delegated to the federal government by the provisions of this section, as expressed in the language thereof. The language of the entire 4th article of the constitution is, as it seems to me, conclusive against the claim to power, on the part of the federal government, delegated to Congress by the states under-the third clause of section 2 of that article. Not only is there an utter absence of all language professing to delegate any power by the states to Congress, or any other department or officer of the-federal government, but the article indicates that it was not intended that any power should be thereby delegated. The first, section and the third of the same article, the one preceding and the one following the section under consideration, expressly delegate-power to Congress in relation to .the provisions in those two-sections; while section 2, as stated, contains no delegation of power. The maxim expressio unius, exclusio alterius, therefore, here applies with double force, to show that it was not intended that any power should be delegated to' Congress under section 2. *Add to the foregoing the consideration that the tenth article of amendments of the constitution — that “the powers not delegated to the "United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to-the people” — and it seems to me morally certain that no power is delegated by these provisions, express or implied. But we have seen the rule to be, that where the words of the-instrument are “ plain, clear, and determinate, they require no interpretation.” And what words can be more plain, clear, and determinate than those under consideration: “No person held to- *188 •service or labor in one state under the laws therepf, escaping into another, shall, in consequence of any law or regulation therein, be .discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor maybe due.” If it be said, the clause may require legislation for its enforcement, let it be conceded; and still there is no doubt or ambiguity thereby thrown upon what is expressed. For'inasmuch as the states have in no preceding clause of the constitution delegated the power of legislating upon the subject of the extradition of fugitives, it is certain the states only have, and Congress has not, the power to legislate upon the subject. Indeed, the provision itself plainly implies that the states have not parted with this, their power which they before had, to legislate in relation to the rendition of fugitives, while it also implies that the federal government would not have the right to legislate upon the subject. The provision is, that no person held to service, etc., escaping into another •state, shall be discharged by the laws of such state. The provision is not, that the person so escaping shall not be discharged .by the laws of Congress; which would'obviously have been the proper stipulation, if it bad been contemplated that Congress, and not the states, would, under the constitution, have the power to legislate. * Again, if the states were then understood to have delegated to Congress their power to legislate over this class of persons, can it be possible that the ’friends of the provision not only neglected to provide against the discharge of the fugitive “ in consequence of any law or regulation” of the federal government; but neglected to ask such a provision superadded, as had been in the preceding section in relation to records, to wit, “ And the Congress may by general law proscribe the manner,” etc. This inquiry can .not be answered consistently with the idea of the legislative power being understood to be delegated by the states to Congress. There is, therefore, no ambiguity as to what is not expressed; but, as is sometimes said, to be regarded as implied; that is, that there shall be the necessary legislation upon the subject. If any such implication arises, there is, then, no ambiguity as to the .party that is to legislate. It must necessarily be the states which have the power to legislate, and not Congress, that has it not. The maxim therefore certainly applies, that it is not allowable to interpret that which has no need of interpretation. *189 But if this clause of the constitution were, in reality, susceptible' of such an explanation by contemporaneous history or other extraneous proof, as to render doubtful, or even change, the meaning of the clause from that expressed by the language thereof, there could be no justice or equity in admitting such proof in determining the true meaning of the clause. The constitution was-submitted to the people for their acceptance “upon a just survey of its provisions, as they stood in the text itself.” The people accepted the instrument from its plain and obvious meaning, as expressed by the language thereof, and not as the meaning might be-thereafter shown by evidence not submitted to them. It is not. such a case as that of a deed or indenture executed between two-' persons, where circumstances extraneous, but within the cognizance of *eaeh at the time, are admitted in certain cases to explain some latent ambiguity or mistake. But, even if resort be had to contemporaneous proof, there is-nothing gained thereby to show any power in Congress to legislate under this clause. Even if it were shown that the framers of the instrument had intended to confer power upon Congress, and had actually expressed such a provision in the instrument which they had subscribed, it is very obvious that, if by mistake that provision had been left out of the copy submitted to and accepted by the people of the states respectively, it could not at all qualify or vary the provision in the constitution as submitted to and accepted by the people. It could only, in such a case, be corrected by an-, amendment of the instrument. But the real facts of the case show that the less said about contemporaneous history by those claiming an intention to delegate legislative power to Congress' under 'section 2 of article 4, the better lor their purpose. Contemporaneous history, whether of matters within or without the constitutional convention, and both previous and subsequent to-the session of the convention, and during the time the provisions-of the constitution were discussed and considered by the people— all tend to show, very clearly, that not only was it neither intended nor understood that power should be delegated to Congress to legislate for the removal from a state of apprentices or servants owing-service in another state, but that the instrument would have been rejected, if it had contained such a power expressed therein. .It is well known that at the time of the formation of the eonsti *190 ■tution, it was the desire and expectation of the patriots and leading .men in the slaveholding states that all the slaveholding states would follow the example of Massachusetts, Pennsylvania, and those other states which had then already passed acts of emancipation, looking ^prospectively to the utter extinction of the ■system of slavery in the states. Shortly after the declaration of independence, strenuous efforts for the final abolition of slavery were put forth by leading men in Virginia, Pennsylvania, and other states. An abolition society had been formed, of which Benjamin Franklin was president. Mr. .Jefferson, and other distinguished friends of universal liberty, lent the cause their hearty co-operation. Virginia, it is well known, at that time held a majority of all the slaves in the southern states. But Virginia, as well as New York had, at a session of the legislature shortly preceding the constitutional convention, introduced a bill similar to the act of emancipation passed by the legislature of Pennsylvania, looking prospectively to the final abolition and removal of the evil of slavery. Virginia had also adopted a bill of rights, containing a declaration “that all men are by nature free ■.and. independent, and have certain inherent rights, of which, when they enter into a state of society, they can not by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” In the first clause of the constitution of that state, there was also then standing a •complaint against “the inhuman use of the royal negative, in refusing the state permission to exclude' slaves by law.” Judge 'Tucker, an eminent statesman and jurist, and a professor of law in the University of William and Mary, had published the doctrine ■in that state, and without encountering any known opposition, “that it could be demonstrated that a state of slavery was wholly incompatible with the principles of our government, and of that revolution upon which it is founded.” He termed slavery “ the bitterest draught that ever flowed from the cup of affliction,” and do- • dared it to be the imposition of a grievance upon our fellow-men ten thousand times more cruel than the utmost extremity of those *grievances and oppressions of which we complained, imposed by Great Britain upon the colonies. Mr. Madison, in No. 42 -of the Federalist, expressed himself upon the subject as follows: ■“It were doubtless to be wished that the power of prohibiting the *191 importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.” He adds, however: “It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy.” . . . “ Happy would it be for the Africans,” he adds, “ if an equal prospect lay before them of being redeemed from the oppression of their European brethren.” The decided sentiment of opposition to slavery, and ardent desire for its earliest practicable abolition in Virginia and throughout the the United States, entertained by Washington and Jefferson, is too well understood to need any illustrations of the fact here. It is also well known that Virginia, as well as New York, having failed to procure the passage of the act for emancipation in a session of the legislature preceding the constitutional convention, renewed the effort to procure the passage of such act of emancipation after the adoption of the constitution of the United States. But the bill for that purpose, introduced into the legislature of Virginia, owing doubtless, in part at least, to the absence of Mr. Jefferson, was again defeated, while a like bill, introduced into the legislature of New York, was fortunately passed, and became a law. Add to the foregoing items of contemporaneous history the well-known facts that the granting of legislative power upon this subject was not asked as any part of the compromises in the convention, and that the members of the convention carefully excluded all words from the instrument which might seem to recognize on the part of the federal government the right or the perma- nent continuance of slavery, and contemporaneous *history must be admitted to be very decidedly against the claim of power having been either understood or intended to be delegated to Congress under this clause of the constitution. The fact is, all the states had joined in making a public profession of the same political faith to the nations of the world. “ We hold,” said they, “these truths to be self-evident; that all men are created equal; that they are endowed by their Creator- with certain inalienable rights, among which are life, libertv, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” For the honesty and rectitude of their intensions, they had solemnly appealed to the Supreme Judge of the *192 world; and for the support of their declaration, they mutually pledged to each other their lives, their fortunes, and their sacred honor. They had in common, by all the perils and pains and privations, bravely met and endured through a war of seven years’ duration with the most powerful nation on earth, given evidence to-the world of the honesty of their profession. And, in the formation of a constitution to secure the blessings of liberty to themselves and posterity, they refused to suffer the instrument to be-profaned by the word slavery. Their real sentiment, conduct,, and character were consistent with their professions, which .they had so earnestly and successfully maintained. And in the spirit of this sentiment, Mr. Madison, in the convention, spoke of the toleration by the federal government of the importation of slaves for so long a term as twenty years, as 11 dishonorable to the American character” (5 Ell. Deb. 477) ; and successfully objected to the constitution being blemished by the use of the word slave. Madison Papers. In this connection, it may also be remarked that neither Mr. Madison, nor any other writer in the series of numbers published in the Federalist, showing the precise extent *and nature of the powers delegated by the various provisions of the constitution, pretended or intimated that any power was delegated by the states, or acquired by Congress, under section 2 of article 4 of the constitution. And in the Yirginia state convention, on the 17th day of Juno,. 1789, when this clause of the cons*itution was under consideration, Patrick Henry is reported to have said, in reply to Mr. Madison, that “ ho considered the clause which had been adduced by the gentleman as a security for his property, as no security at all. It was no more than this, that a runaway negro could be taken up-in Maryland or New York.” 3 Ell. Deb. 335. And to this view of the provision a general tacit assent was given, neither Mr. Madison nor any other member questioning its correctness. After the constitution had been framed and submitted to the-people for their consideration, Mr. Madison, in one of the series of essays already alluded to, addressed by him to the people on the subject of its adoption, uses the following language in relation-to the powers delegated and those retained thereby on the part of the states: “ The powers delegated by the proposed constitution to the *193 federal government are few and defined. Those which are to remain with the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce, with which last the power of taxation will for the most part be connected. The powers reserved to the several states will extend to all the objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.” However mistaken time may have shown him to have been in his understanding of the construction that the instrument must necessarily receive, Mr. Madison certainly would seem to have had very just reasons for the views *thus expressed of the powers belonging, under the provisions of the constitution, to the states and federal government respectively. The compacts expressed by section 1, and by the 1st and 2d clauses of section 2, of article 4, of the constitution, he had carefully taken from the articles of confederation where they had stood for ten years, and been expressed, and regarded as mere treaty stipulations, conferring no power upon Congress to legislate. To the first — “ full faith and credit,” etc. — was by agreement added a power to Congress to legislate a rule for carrying out the compact ; and the same was made to constitute by itself clause 1 of the article. To the other two treaty stipulations so transcribed from the articles of confederation, to wit: “the citizens of each state,” etc., constituting the first clause, and the one providing that “ a person charged in any state with treason,” etc., constituting the 2d clause of section 2, being only transcripts from the articles of confedration, without the addition thereto of any power delegated in relation to them, were grouped together, and thereto was added the other compact or stipulation, “no person hold to service or labor,” etc., taken substantially from the ordinance of 1787, constituting the third clause, and, together, forming section 2 of article 4. When he had thus carefully separated the treaty stipulations transcribed, to which the power to Congress was to appertain, and had expressly added such cession of power to Congress. expressing, in section 1 preceding, and section 3 following section 2, that Congress should have power to legislate in section 1 and section 3, but had withheld any permission to Congress in section 2 to legislate as to those stipulations, how could Mr. Madi *194 •son, or any other statesman, have foreseen that the federal government would ever arrogate to itself any powers under section 2 ? .It certainly was not and could not have been foreseen by human sagacity, that it would ever be questioned that the entire legislative power over the stipulations expressed in section 2, remained intact in the states. And especially *ought this to have been so regarded under amendment 10 of the constitution. I have been thus particular to show that there is no express power delegated, or intended to be delegated, under this clause of section 4, for the reason that it can not, in fact, be shown that Congress has the power except by an implied delegation under this clause. And yet I am certain that no man will seriously pretend that, by the language of the clause, it can be made to appear that the states delegated, or intended to delegate, the power to Congress. But while forced to admit the fact that there are no words used in the. clause relating to fugitives, expressive of a grant of power to Congress, or of .an intention on the part of the states to delegate any legislative power upon that subject, the advocates of congressional power still insist that the power has been derived by Congress, under that and certain other provisions of the constitution. In the absence of any special provision authorizing Congress to legislate, it is claimed that Congress has become invested with power to legislate by virtue of three distinct provisions of the constitution. The provision in article 4, it is said, makes it a duty of the states respectively to surrender the fugitive; and section 2, of article 3, extends the judicial power to all cases arising under the constitution and laws of the United States; and the concluding clause of section 8, article 1, authorizes Congress to make the necessary laws for carrying the judicial power into execution. And under these three provisions it has been suggested that Congress may have derived power to legislate for the rendition* of fugitives. The argument may be simply stated thus: Congress has the power, under the last clause -of section 8, article 1, to pass proper laws for the organization of the judiciary, and for the execution of its judicial powers. The rendition of a fugitive is provided for under the constitution. Therefore, power of the judiciary should extend to that provision; and therefore, Congress may legislate to carry into execution, in that regard, the judicial power. Now, ^unless the premises of this fair statement of the argument be true, and unless the minor proposition of the premises be included in the *195 major, the reasoning is fallacious and the conclusion false. But the minor proposition is not included in the major, and therefore the premises are not true. The judicial power is only extended to all cases arising under the constitution and laws of the United States, etc., while the provision that- “no person held to service,” etc., is not a case. It is a compact or stipulation — it is a duty; but it is not evén a stipulation or duty on the part of the federal government, but upon the states merely. It can not, then, with propriety, be affirmed that Congress has any more power to legislate for the performance of the duty of delivering up fugitives, than for the performance of any other duty of the states under the constitution. For while Congress has the power to pass or make all laws necessary and proper for carrying into execution the powers of the judiciary, it must be remembered the powers of the judiciary only extend “to cases under the laws of the United States,” etc., and that no laws can be passed by Congress except within the limits of its delegated powers. It therefore follows that the judicial power of the federal government, as to cases arising- under the laws of the United States, is only co-extensive with the legislative power of the federal government, and therefore extends no further, in regard to cases arising under the laws of the United States, than the delegated powers to Congress to legislate. Therefore, if no power is •delegated to Congress, independent of the judiciary clause, to legislate for the rendition of fugitives, inasmuch as the power of the judiciary is only co-extensive with the power of Congress in that regard, it is certain that Congress has no power, under the grant of power to make laws to carry the judicial power into execution, to pass laws beyond the extent of the -judicial powers; and which, as we have seen, do not extend to any legislation by Congress in relation to the rendition of fugitives, Congress having no power to ^legislate on that subject. But it is absurd to say that the constitution ever contemplated a delegation of power by the states to Congress to legislate for the enforcement of duties devolved upon the states under the constitution. Nor can it with any reason be pretended that Congress has power to legislate as to any 'duty of the states, without conceding a like power to legislate for the enforcement of all duties of the states under the constitution. If, then, Congress has power to legislate respecting the duty of the states to surrender fugitives, it has the power to legislate to enforce the duty from each state, whether slave or free, to extend all the privileges *196 and immunities of citizens to the citizens of every other state, whether negroes, mulattoes, quadroons, or others, as well as whites. And it might, with equal projmiety, be claimed that Congress may legislate for the enforcement of the provision that no person shall “be deprived of life, liberty, or property without due process of law.” But it is absurd to claim for Congress the power to legislate to enforce the duties of the states, in the absence of any such power' delegated under the constitution. In an early Congress the distinction was very clearly shown between the word “ question ” and “ cases ” as used in the 3d article of the constitution. On the 20th of February, 1800, Edward Livingston introduced in Congress his resolutions in relation to the surrender of Jonathan Robbins, alias Thomas Nash, to Great Britain. The commencement of the second resolution was in the following language: “ That inasmuch as the constitution of the United States declares that the judiciary power shall extend to all questions arising under the constitution, laws, and treaties of the United States, and to all cases of admiralty and maritime jurisdiction,” etc. On the 7th of March, a few days after, John Marshall, afterward Chief Justice, then a member, made his speech upon the resolutions; and remarked as follows upon the substitution of the word questions in the resolution for the *word “cases” used in the constitution — said he: “A ‘case’ in law or equity was a term well understood and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitution, it would involve almost every subject proper for legislative discussion and decision: if to every question under the laws and treaties of the United States, it would involve almost every subject on which the executive could act. The division of power which the gentleman had stated could exist no longer, and the other departments would be swallowed up by the judiciary. But it was apparent that the resolution had essentially misrepresented the constitution.” Abridgment of Debates of Cong., vol. 2, p. 462. I submit, then, without dwelling longer upon this proposition, that by no fair regard to the plain and express language of the provisions of the constitution, nor by any just legal rules of interpretation, can it be shown that the states ever delegated, or con- *197 rented to delegate to Congress tlie power to legislate upon the sub-, ject of fugitives from service. But not only does it appear that the fugitive act of 1850, was passed by Congress without any express constitutional power, ana in derogation of the reserved powers of the states, but the same is, in its provisions, repugnant to the constitution of the United States. The 5th article of the amendments of the constitution provides, that no person shall be deprived of life, liberty, or property without due process of law. At the time of the adoption of the constitution and the amendments thereto, the phrase “.due process of law,” had a well understood meaning. The phrase was understood then, as it had long before and has ever since been understood to mean, in its legal acceptation, a suit instituted and conducted according to the prescribed forms *and usages of courts of justice for ascertaining guilt or determining title. No one then understood, and no one now understands, the phrase to be of less comprehensive import. Article 7 of the amendments provides that in suits at common law, when the value in controversy shall exceed twenty dollars, the right ■of trial by jury shall be inviolate. And it may properly be held that a person’s claim to his liberty, or a claim for his future services for life, is a claim of sufficient magnitude to give the right of trial by jury under this provision of the constitution. Previous to and at the time of the adoption of the constitution, it is said that the common law writ of homine replegiando, for the purpose of trying the right of the master to the service of the slave, was well known to the laws of the several states, and was in constant use for the purpose, except so far as it had been superseded by the more summary proceeding by habeas corpus, or by local legislation. If, then, it should he said that the provision in the constitution, “ no person held to service,” etc., contemplated a summary surrender and extradition, the answer is at hand. In the first place, there is nothing in the language of the provision nor in its subject-matter contemplating a summary proceeding; but on the contrary, from the language and object of the provision, it is evident that no surrender is promised or contemplated by the provision until the ease provided for is shown; that is, 1. That the person claimed was held to service or labor under the laws of another state; 2. That such service or labor is due to the party claiming to have the person de~ *198 livered up; and, 3. That the person so held to service under the laws of such state had escaped therefrom. And all presumptions of law being in favor of life and liberty, and the claim for surrender being' a claim against liberty, it must be fairly proved. Again: the amendment of the constitution referred to, ^being an amendment of the instrument containing the fugitive clause-relied upon, must have full effect, although it be by qualifying, or even, by necessary implication, entirely abrogating that provision requiring a surrender. There is not, however, any irreconcilable incongruity between the, fugitive clause reasonably interpreted, and the amendment. The amendment only makes certain what ought, to have been before regarded as reasonably implied, that neither under that clause of the constitution, nor any other, can a person, be deprived of his liberty except by due process of law; and that the person against whom the claim is made has a right to a jury trial, and all the ordinary facilities of a court of justice constituting. “ due process of law.” In treating upon this subject Chancellor Kent (2 Com. 3) uses the-following language: “ It may be received as a self-evident proposition, universally understood and acknowledged throughout the country, that no person can be taken, or imprisoned, or disseized of his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or ¡property, unless by the laws of the land, or the judgment of his peers.” [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8338659. Public record. Not legal advice.