The petition of the relator from Cincinnati was dismissed, as the return showed that the proceedings against him in the United States Court were still pending and undetermined. The case was similar to the first application in behalf of Mr. Bushnell.

The opinions were scarcely read, be

insisted that the State and Federal Judiciaries | convicted and imprisoned, that, in his judgment, were each, by the Constitution, left independent, they ought to be forthwith discharged. and ought to act with perfect independence; that it was not only the right but the duty of the Supreme Court of the State-in a case clearly of importance to the State or its citizens, sufficient to justify such a course, and under circumstances which would dictate such exercise of their discretion-not to suffer a question to be settled, as to any case coming before them, against their clear convictions of the constitutional rights of the State, or its citizens. He urged that they would not suffer them-fore Marshal JOHNSON and District-Attorney selves to be thus governed by any adjudication BELDEN called upon Sheriff WIGHTMAN to made by the Federal Court in another case. This say, that, as, according to the Booth decision, was not judicial insubordination, but the judicial all interference of State Courts with United independence contemplated by the Constitution. of the United States, and which he believed it States prisoners, by habeas corpus or otherwise, the duty of the Supreme Court of the State to was unwarrantable and illegal; the journey of exercise in this and all similar cases. It was the Bushnell and Langston to Columbus was cononly position, in his judgment, peacefully and structive escape from jail, and he must therewith due respect towards the Federal Judiciary, fore add six days each to their sentences, to to maintain the independent State sovereignty contemplated by the framers of the Federal Gov-compensate for the time they had been "at ernment, and to avoid an unconditional surren-large" before the Supreme Court. der of the constitutional powers belonging to the States whenever usurped by the Federal Gov

ernment.

The Sheriff being otherwise advised by his counsel, and assured that such conduct would render him liable for false imprisonment as well as for "constructive" contempt of the Supreme Court, declined obedience to this order, and discharged

Entertaining these views, he added, and, after carefully examining the Constitution and the Act of Congress in question, with the aid of all the reasons and light afforded by the various opinions and authorities referred to, hav- Langston on the following Wednesday, twenty ing no reasonable doubt of the unconstitutionality days having elapsed since the date of his senof the act upon which the prisoners had been tence.

CHAPTER FIFTH.

IN gratifying contrast with the charge of Judge Willson to the Grand Jury that indicted the Rescuers, we place on record here, as introductory to the

INDICTMENT AND ARREST OF THE
KIDNAPPERS,

this State; or to attempt to kidnap or forcibly or fraudulently carry off or decoy out of this State, any such free black or mulatto with the intention of having such person carried out of this State, unless in pursuance of the laws thereof.

It also (Sec. 2), makes it an indictable misdemeanor, to kidnap or forcibly or fraudulently the manly charge of Judge Carpenter to the carry off or decoy out of this State any black Lorain County Grand Jury.

CHARGE OF JUDGE CARPENTER.

Gentlemen of the Grand Jury: Your Prosecuting Attorney, as a very pertinent part of his duty, has requested me to call your attention to the acts to prevent kidnapping. There is a statute against kidnapping white persons. Its provisions are plain and I need only mention it.

or mulatto, within this State, claimed as a fugitive from service or labor; or, to attempt to kidnap or forcibly or fraudulently carry off or decoy out of this State, any such black or mulatto, without first taking such black or mulatto before the court, judge, or commissioner of the proper circuit, district, or county having juris diction, according to the laws of the United States in cases of persons held to service or labor in any State, escaping into this State, and there, according to the laws of the United States, establishing by proof the claimant's property in such person.

The Statute passed April 17, 1857, Sec. 1, makes it an indictable misdemeanor, to arrest and imprison or kidnap, or decoy out of this State, any free black or mulatto person, within It will be seen that this statute contemplates

two classes of blacks and mulattoes, the free State, and stop there. For, giving to the Conand the not free:- - that the first section pro- stitution of the United States the loosest convides for the protection of free blacks and mu-struction, the utmost latitude for slavery, which lattoes, and that the second section provides, has ever been given it by any authoritative first, for the security of the public peace against decision, the only possible case of a legal liabilall provocation to break it in revenge, or pre-ity to be arrested and returned into slavery vention of any abduction from this State of any from within the boundary of Ohio, is that of a black or mulatto not yet legally proved to be a fugitive slave escaping out of a slave State into slave—and, secondly, for the protection of all Ohio. He must come into Ohio in the act of free blacks and mulattoes in this State, against escaping- a fugitive, and this fugitive charthe hopelessness of proving their freedom in acter must belong to him at the moment he en another State, where complexion is presump- ters the confines of Ohio, or he leaves the status tive of their legal enslavement, and against of a slave where he leaves the slave State. For, the hopelessness of any immunity to them from by the decisions of all civilized nations, slavery force, in a State where the legal status claimed is against natural rights, and can exist only by against them, has its origin and maintenance, positive law. This, until very recently, has not in the law of nature, but in force alone. been the authoritative doctrine of our slaveholding States, as well as of all others. Slavery, then, being against the law of nature, and existing only by positive local law, it is clear that this positive local law cannot extend beyond the jurisdiction of the power which makes it. It is equally clear, that the right of this local law to hold a slave cannot go farther than this law can go itself; that the slave, having a natural right to freedom, and being held a slave only by a local law which violates that right, the moment he is beyond the arm of that local law, his natural right to freedom resumes its empire. The instant, therefore, the slave, by any means not as a fugitive, crosses our boundary, he is baptized in the air of freedom; and that baptism is irrevocable.

The misdemeanor here defined, then, is the claiming of any black or mulatto, within Ohio, whether free or not free, to be a fugitive from service or labor, and the getting, or attempting to get him out of Ohio before such claim has been legally proved, with intent to enforce such claim. The gist of the offence is the getting, or attempting to get him out of the State before he is proved to be a fugitive slave, with intent to hold him as such.

The Constitution of Ohio inhibits slavery, and regards all persons as free except criminals. No doubt, however, the legislative intendment of the second section of this statute refers to slavery as the condition of certain persons in other States, and as the possible condition of such persons in Ohio, for the purpose of recap- The law of Kentucky cannot of itself reach tion and return only, in case of their escape into Ohio. The Constitution of the United from that condition in another State into this. States, according to the construction adopted This, being a criminal statute, must be con- by this statute, extends the slave law of Kenstrued somewhat strictly against the State.tucky into Ohio, for the sole purpose of recapPassing over the question, then (upon which tion and return in case of the slave's escape much might be pertinently and strongly said), into Ohio, and only in such case - and that too, whether any person in Ohio, not charged with with such executory modifications as the State crime, can be legally otherwise than free, we of Ohio has found it prudent to enact for the must give to any one indicted under this statute, safeguard of its own citizens. But, that A is the benefits of this strict construction. admitted to have been a slave yesterday in But this statute recognizing the possibility of Kentucky and is found to-day in Ohio, raises finding a fugitive in Ohio liable to be seized no presumption that he came into Ohio by an and returned into slavery, it may become im- illegal escape. Whatever a man does which in portant in your inquest, to know when there himself is not unlawful, the law presumes him to arises a legal presumption of this liability, and do innocently. We cannot, therefore, legally what are the legal presumptions to the contrary. presume because he was yesterday a slave in Who, then, is presumed to be free? Every- Kentucky, and to-day is in Ohio, that he came, body. Every man, woman, and child, in Ohio, here in violation of law-even of the slave of whatever birth, descent, parentage, com- law. The legal presumption is rather that he plexion, or conformation, is presumed in law to came here, as lawfully he might, by consent of be free. Whoever interferes with this freedom his master. Or, if that presumption should be is presumed to do it in violation of law. Who- rebutted by evidence, then the legal presumpever is charged with such interference must tion would be that he came here by the act of deny the charge, or show his authority for the God-by the winds or the waves, in spite of interference, or be held guilty. If the inter- himself. -unless there were some evidence ference is proved against him, the legal pre-pointing to a different conclusion. For, I cansumption then is, that he has violated the law; not hold the mere facts that a man was a prisonand it devolves on him to show his right to in- er in Kentucky yesterday, and is at large in terfere. Ohio to-day, to be any evidence that his enlargement is illegal.

It would not change this presumption, to show that the prisoner had been a slave in a slave

Certainly, the slave's coming here by the act

of God, is not an escape. And since the slave status can exist only by the concomitancy of the Slave law, and since the Slave law can be concomitant with his person here only by the slave's escaping hither, his coming here by the act of God must leave his status as a slave behind him, and invest him with the inevitable status of a freeman.

Nor ought the master to complain of this inevitable necessity. Ought he to complain of inevitable death? And, if not, he ought not to complain of an act of God which releases him with no worse result to the master, but a result always due a slave by the law of nature? Should the whirlwind which releases the slave by death be blameless, and the whirlwind which stops short of death, but drops him in a free State, be blamable? In each case, the Slave law would end because the slave was beyond its jurisdiction by the act of God.

have the people of Ohio distinguished any other resident person in respect of color, than whites, blacks, and mulattoes. By necessary implication, those male citizens of the United States in Ohio who are not entitled to vote at all elections, are not whites, but are blacks or mulattoes. Did the people of Ohio, in adopting their Constitution, mean to exclude from their Bill of Rights men whom, in the same instrument, they declared to be citizens of the United States! Not at all. This construction is confirmed by article nine, section one, "All white male citizens residents of this State .... shall be enrolled in the militia," etc. Now, here it is provided that those who are to be enrolled shall be made citizens, be residents, be whites. But this necessarily implies, first, that there are male citizens here who are not residents of this State; and, therefore, this word "citizens," must here probably mean citizens of the United States: and, secondly, that there may be citizens of the United States here who are not whites, and, therefore, are either blacks or mulattoes. Or if the word citizens" here means citizens of Ohio, then blacks and mulattoes may be citizens of Ohio.

Is there any thing, then, in the case, which should palsy our law, whenever the man thus freed might claim its protection? Neither the law of nature, nor the common law, nor any enactment, nor any comity of State, indicates" any such thing.

If, then, the evidence should convince you of an attempt forcibly or fraudulently to carry off or decoy out of this State any black or mulatto, or to arrest or imprison any such person, with intent to have him carried out of this State, not in pursuance of the laws of Ohio, and if you do not find from evidence that he came into Ohio by an actual escape from service or labor, whatever the proof may be that he had been a slave, you will hold him to be free, and that the act described was a misdemeanor, for which you will indict whomsoever you find to have committed it.

In this position, that the law presumes every man in Ohio to be free, I am upheld by the Constitution of this State, as well as by that of

the United States.

Our Bill of Rights begins, " Sec. 1. All men are by nature free and independent. Sec. 2. All political power is inherent in the people. Government is instituted for their equal protection and benefit."

This presumption of universal freedom is supported by the common sentiment which gave our nation birth; and which, therefore, may well be regarded as a part of our common law. It is expressed in our Declaration of Independence, a declaration of no new discoveries. It was but the utterance of principles so common, so pervasive and so long felt that they were there set forth as an indisputable law of human nature. I know that there is a puerile cavil, that the language. "All men are created equal, and are endowed by their Creator with certain unalienable rights among these are life, liberty, and the pursuit of happiness was not intended to include black inen. It requires more than ordinary patience to answer this cavil, when we remember that the very point in dispute between the colonies and the mother country was whether the sovereignty of Great Britain was illimitable, or was limited by the equal and unalienable rights of all mankind; the administration claiming that Does any caviller pretend that the words, the sovereignty of the King and Parliament "all men," in the first section, and in the second, was without limitation over its subjects, and the "people," for whose equal protection and bene-colonists replying that human sovereignty was fit government has been instituted, were meant always limited by the equal rights of all its subto exclude blacks and mulattoes? In article jects, the unalienable rights of all mankind. five, section one, we find, "Every white male They claimed that whenever human sovercitizen of the United States of the age of twen- eignty so overstepped its lawful sphere as to ty-one years, who shall have been a resident of trample upon these unalienable rights, it was the State one year, shall be enti- itself a rebel against the law that limits it, and tled to vote at all elections." might be lawfully overthrown. And when arNow the word "white" here describes cer-gument was exhausted, and they stood upon tain male citizens of the United States, and their rights, they held forth these self-evident distinguishes them from certain male citizens truths, and made their appeal upon them to all of the United States of some other color. the world. If, from these unalienable rights, This conclusion is inevitable from the lan- their language had excluded any part of the guage. But neither, in their legislative nor in human race, their appeal would have been a their judicial acts, nor in their common speech, mockery.

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The Journal entry of the Court is as fol-nished the subject of not a little comment. The lows: