The Cleveland Daily Herald
Cleveland, April 14, 1859
The Oberlin-Wellington Rescue Case.
United States District Court,
Willson, Judge.
Northern District of Ohio.
Eighth Day – Afternoon Session.
The argument of A.G. Riddle for the defence resumed:
If John was a slave was he known to be such to Bushnell? It was to be presumed he was a free man; there is nothing in the fact of JohnÕs color or of his arrival at Oberlin to fix his status as a slave. There is no proof that it was know at Oberlin that John was a slave; on the contrary, on that day of his capture it was spoken of that he had been kidnapped, - it was so at Oberlin and at Wellington, and a warrant was issued against his captors for kidnapping John, a free man. These parties from Kentucky had no authority for taking Frank the pop-eyed negro and yet the man Wack swore that Mitchell was there hunting negroes, among them the man Frank; those men were not there clothed with legal authority. Counsel can make allowance for the views of Southern brethren born and bred in slavery but cannot comprehend how at the North a being having the semblance of humanity can decoy and deceive one of these poor creatures.
Here counsel reviewed the testimony as to the manner John was decoyed by Shakespeare Boynton, and claimed that the whole transaction was downright stealing; it was highway robbery. The Federal officers were there accessory to this stealing. The speaker paid a brilliant and beautiful compliment to Kentucky, and the obligation Ohio is under to her for the services of her brave sons, who came to Ohio to defend a common country. That obligation Ohio will pay, should a foreign foe invade Kentucky. Counsel also paid a deserved and brilliant tribute to the dead Clay and the living Crittenden. But counsel did not like the way of enforcing this Fugitive Law. He would not go into Kentucky to decoy negroes, would not interfere with such property there, but if a panting fugitive came to his roof for shelter, and clothing, and food, so help him Heaven he would give it to him. (Here the applause was loud and continued; the Court in vain attempting to repress it until it had spent itself.)
It is not true that Oberlin has lent itself to steal slaves; they have expended money and their lives in establishing missions. Fugitives from Ohio and Virginia may have gone there, but it is not true that they have gone there by Oberlin procurement. John was not under their protection, as was shown by their want of concert when the news came that he was taken; there was no discipline, no management, but a promiscuous crowd gathered, showing it to be a spontaneous gathering. It was talked over that John was a free man and had been stolen away. They had a right to enquire how John was taken and for what. They scattered off, two at a time, without any concert, any arrangement, knowing only that John had been wrongfully carried away.
Counsel does not intend to discuss all that was done and said at Wellington, but merely as to the knowledge the crowd had as to who John was and the object sought to be accomplished by them. Ordinarily no man can be criminal who is unconscious of committing an offence: If a party in doing what is lawful, unintentionally does what if intentionally done would be a crime, he commits no crime thereby; the intent fixes the crime. There were no characteristics there of a crime, criminals do not ordinarily consult in broad daylight; if there had been intention of committing a crime they would have waited for night to have spirited John away, and no one could have know who did it.
What did happen at Wellington? The captors and slave took shelter at the tavern; a fire had happened and a crowd was attracted from around, some five hundred. That crowd was excited about that fire, that large fire to unaccustomed eyes, created an excitement, and they were over excited at the time and some had no doubt been drinking during their exertions at the fire. The fire crowd furnished the great part of that which rallied around this negro; those who went from Oberlin could not have exceeded twenty; there was no exodus from Oberlin; those who could conveniently go did so. The first notice the crowd had is disclosed by Mr. Howk and others who were listening to a trial, with about 100 persons in the town hall. A person comes in and is so well satisfied that John is a free man that he makes affidavit that he has been forcibly taken and a warrant was issued; he knew John had been decoyed away and spirited off; he made that affidavit in presence of the crowd, and on that information the crowd first acted, they supposed the information to be true, everybody supposed it was true, for the very conduct of the captors left them to think John had been captured, their acts advertised it as an outrage and breach of the peace.
Now this collection began to assume the form of a crowd and the Southerners became advised of the stir. The Southerners became advised of the stir. The Southerners attempted to hold this man by force, they did not explain to the crowd in its inception their claim; there was no means used to set the crowd right. What did they do? They stuffed John with a story and sent him out to talk to the crowd; stuffed him with a miserable lie and sent him out to retail it. The Marshal of the Southern District makes a mouth-piece of this miserable negro. If they had had authority for holding John they would have proclaimed it to the crowd, instead of hurrying their plunder into the fortification of that upper room. Everything was a miserable lie; they wanted John to go out to say that he wished to go back to see his missus, and master, and wanted to see his mother, some. He went out but he failed, he could tell it in the room surrounded with revolvers and knives but when he went forward to the crowd of friends he failed.
This was the first miserable subterfuge. What had the crowd a right to infer from this course? The man had been taken in such a manner as to suppose he was stolen, and instead of proclaiming their authority they put out this miserable negro to tell this wretched story. This tended directly to excite the crowd, for they sought to make him say that he wanted to go back; this they knew to be a lie. Counsel then sifted and compared the testimony of the Government as to what John said on the platform. Wack, in this instance, told the truth, and he ought to have credit for it. Wack says he thought John was going to say he wanted to go back. The discrepancy on the part of the witnesses as to what John said is a fair specimen of the testimony for the prosecution in this case.
Now it was near the time that train was due from Cleveland; the lie put in JohnÕs mouth had failed; they had stolen John and then trumped up the story of JohnÕs wish to go back to Kentucky; this all failed, and then for the first time Lowe calls upon some influential men and makes known to them he had a warrant; this was the first disclosure. There was no combination; it was a promiscuous crowd, came there in no concert, every one acting on his own impulse; each was only responsible for his own acts, and by no rule is any one to be made responsible for the doings of others unless you first prove a combination. There is no proof that up to this time any man who knew of or saw this warrant was one of the crowd that was attempting a rescue; so there was not notice thus to the crowd. Lowe does not go out on the platform, but speaks out the back way, and another man reads the warrant, and just then the crowd by a rush take the beleaguered castle and carry it by storm; the stronghold of that den of thieves was thus and then carried. Bushnell came to rescue a kidnapped man, and there is no proof to show that he drove away John knowing him to be a slave and that he was legally retaken by his owner. There is a failure of establishing guilty knowledge on the part of Bushnell, there is no proof of combination, no proof of information made to him individually.
They have not proved ownership except to one-sixth of John. Did John escape; was John the man? A copper-colored boy escaped; a black man was retaken; a man of five feet ten inches escaped, a man five feet five inches was taken; had they legal authority to retake him, and then did Bushnell knowingly violate the law.
Counsel would warn the jury to well consider this case for a conviction f this defendant upon such evidence as is here produced, will sow the North with DragonÕs teeth, and we shall see hosts marshaled for freedom in a civil war.
ÒFirm-paced and slow, a horrid front they form
Still as the breeze, but dreadful as the storm;
Low murmuring sounds along their banners fly,
Revenge or death –the watchword and reply.Ó
JUDGE SPALINGÕS SPPECH.
The Judge opened by saying it is now forty years since he took an oath to support the Constitution of the United States, and on many responsible occasions had it been renewed, and never has the obligation been violated. But, as a popular President said, he intended to support it as he understands it. Jackson uttered that sentiment in support of State rights, and for that he deserves immortal fame. Counsel stands to defend a man in jeopardy of his liberty, and in jeopardy for following the injunction of Christ; when you see one sick and in prison, visit him. For this the defendant stands in danger of the Penitentiary. Great God, has it got to this, that men canÕt know what is to be the punishment for an act they are prohibited from doing, for this law does not say whether the imprisonment is in jail or the penitentiary.
It is said here that every man who testified against this prosecution, belonged to some party other than the old Democratic party, and that is the only party in favor of the Federal Government. He himself is a Democrat, and for a long time, longer than the District Attorney, he kept step to party, and did not break it until the passage of this law. It is said this defendant comes from Oberlin, where Federal laws are set at defiance. Is Oberlin on trial? And is the jury to visit the penalties of the Fugitive Law upon Bushnell, because he lives in Oberlin? Is a citizen to swallow a law, whether it is right or wrong? It is said Oberlin knows only Higher Law. What is the reason for the Higher Law, mouthed so flippantly by the prosecution, as is often the case by pot-house politicians? When Napoleon was marshaling his force for the invasion of Russia, his uncle besought him to desist and said, Òman proposes and God disposes.Ó – Napoleon replied, ÒI propose and I dispose,Ó and 600,000 armed men crossed the Dnieper, and in six months that man Napoleon was an exile. – Did the Higher Law have any thing to do with NapoleonÕs fortunes? Jefferson said, in case of a servile insurrection of slaves, he feared for his country, when he reflected that God was just, for the Almighty could not take sides with the oppressors. Was this Higher Law in Tom Jefferson? He would present the Constitutional objections to the Fugitive Law, not expecting to get a reversal of other Federal decisions here, but he should as a man and an advocate agitate, agitate; until right is done, and wrong done away with.
Instead, as the Government says, the constitution only was framed by the insertion of the clause relative to fugitives, it can be shown that it never would have been adopted had the North known what would be claimed under it.
Counsel knew full well by what tenure officials hold position now from the powers at Washington; he knew that no man could hold his HonorÕs the JudgeÕs seat unless known to be willing to return a fugitive; that no man could be District Attorney unless he would do the same. Counsel must say that Judge Belden has promptly fitted himself for this duty, as but a few years since that gentleman, at Columbus, claimed that he should be Governor, because he represented the Democracy by voting for Mr. Van Buren in Õ48, at a time when the speaker went for the regular nominee of the Democracy, Gen. Cass.
The people of Oberlin are denounced as enemies of the Federal Government, because they are opposed to and hate this Fugitive Law. We in this city of 60,000 people are opposed to this law, and we live in a District that has a majority of 30,000 against the present Administration and this law, and shall we be called enemies of our government? Counsel will refer a little to the history of the opposition to this law in this city. On the 11th day of October, 1850, a large meeting of the most respectable citizens of Cleveland, was called to express their sentiments upon the passage of this Fugitive Law. John A. Foot was Chairman and M.C. Younglove and H.C. Brayton Secretaries. A Committee was appointed to present resolutions upon the subject, composed as follows:
Joel Tiffany, Reuben Hitchdock, H.V. Willson, O.H. Knapp, and G.A. Benedict, which Committee reported as follows:
1. Resolved, That the passage of the Fugitive Law was an act unauthorized by the constitution, hostile to every principle of justice and humanity, and, if persevered in, fatal to Human Freedom.
2. Resolved, That that law strikes down some of the dearest principles upon which our fathers predicted their right to assert and maintain their independence, and is characterized by the most tyrannical exercise of power; and that it cannot be sustained without repudiating the doctrines of the Declaration of Independence, and the principle upon which all free governments rest.
3. Resolved, That tyranny consists in the willfully violating, by those in power, of manÕs natural right to personal security, personal liberty, and private property; and it matters not whether the act is exercised by one man or a million of men, it is equally unjust, unrighteous, and destructive of the ends of all just governments.
4. Resolved. That regarding some portion of the Fugitive Law as unconstitutional, and the whole of it as oppressive, unjust and unrighteous, we deem it the duty of every good citizen to denounce, oppose and resist, by all proper means, the execution of said law, and we demand its immediate and unconditional repeal, and will not cease to agitate the question, and use all our powers to secure that object, until it is accomplished.
5. Resolved, That we recommend that a meeting of the citizens of this county be
held at Cleveland on the 26th day of October, instant, to consider said law, and take such action thereon as may be expedient.
Judge Spalding went into a long and very able argument upon the unconstitutionality of the Fugitive Slave Law, but we shall not attempt to report his argument. It held the audience riveted. In the course of this branch of the subject, when referring to the assertion on the part of the Government counsel, that there is no danger of white persons being captured as slaves, in Ohio, Judge S., pointing to a white lad sitting on the steps of the JudgeÕs seat, and immediately before the jury, said: That boy sitting there, with a skin fairer than the District Attorney, and hair not half as curly as his, has, within six months been manumitted in this city before our Probate Court.
Counsel remarked that in framing the Constitution it was supposed a perfect system of checks and balances was provided, in the Executive, Legislative and Judicial branches, but in the matter of the Federal Judiciary a capital mistake was made, in giving life tenure to the Judges. Our Federal Judiciary has reached out its Briarean arms until at this moment very little of StateÕs rights is left: of the rights reserved to the States and the people nothing is left but the name, and unless the people apply a remedy all power will center at Washington. Counsel did not expect this Court would reverse the decisions made in the other Federal Courts, and this is not the time to attempt to stem and stay the encroachments on State rights, but it was his duty to his client to urge the unconstitutionality of this law.
Adjourned to 9 oÕclock.