The Cleveland Daily Herald
Cleveland, April 15, 1859
The Rescue Case.
Tenth Day – Morning Session.
District Attorney Belden continued his argument by claiming that according to the common law a deputy could only act in the name of the principal, and this was incorporated in the Kentucky statute – therefore the power of attorney in the case was properly made out. He also claimed that it was not necessary for Jennings to have been present at the time of making the capture, as he could have legally directed the matter from any distance, and that Marshal Lowe, was acting under such directions, and not under the warrant. In continuance of this argument he gave notice that if the Lorain county authorities should attempt to arrest Lowe, Jennings or Mitchell for violation of the State law; he should claim, with confidence of success, that they were not amenable to State law, because acting under the power of attorney which placed them beyond the reach of State jurisdiction in the matter.
He claimed that the jury should take no account of the quibbles and technicalities, which might stand in the way of a conviction. He said that it was perfectly lawful and right for the gentleman from Kentucky to follow the negro to Oberlin with “Arkansas toothpicks,” bowie knives, and revolvers, if he thought best for the purpose of the capture.
The District Attorney claimed that full exhibition of the Power of Attorney was made; also that it was immaterial in what manner the negro was taken by the Kentuckians, in view of the fact that he was rescued from the immediate presence and control of Jennings.
The balance of the District Attorney’s speech was a recapitulation of the evidence in the case, liberally interspersed with attacks on the opposing counsel, imputations on the Press of the city and abuse of the audience. The language and spirit of the address was in the worst possible taste, and evoked the indignation of the audience, evinced in one instance by unmistakable hisses. The speech was concluded at 11 o’clock, when the case was given to the jury by Judge Willson, in the following charge:
CHARGE OF THE COURT.
There is a preliminary matter in this case (and with which the Jury have nothing to do) that should be noticed before entering upon the consideration of the principles of law, which are applicable to the issue of act to be tried by the Jury.
A motion was made by the defendant to quash the indictment, which motion (without argument of counsel, or reasons expressed by the Court) was overruled, with the understanding, however, that if at any time the grounds of the motion would be deemed to be well founded, the case would be withdrawn from the Jury.
In this motion to quash, the assigned causes are –
1st. That the indictment is found and presented for an alleged violation of an act of Congress, which act is unconstitutional and void.
2d. That the pretended Grand Jury, which found said indictment was not legally empanelled, but were selected and empanelled contrary to law.
3d. That said indictment is defective, informal and insufficient in law.
4th. That it does not appear in said indictment, that said negro John was legally held to service, or that he was held to service under the laws of Kentucky or any other State or Territory.
5th. That it does not appear that the defendant knew him to be held under or by virtue of any law, nor that the defendant knew him to be lawfully held to service.
The 2d. Section of the 4th article of the Constitution of the United States declares, that “no person held to service or labor in any 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.”
This provision of the Constitution is a positive and unqualified recognition of the right of the owner in his slave, unaffected by any State Constitution or any State laws whatever. It is a right of property, and life the ownership of any other species of property, it implies the right of seizure and reception. In case of escape, the statue of the slave in relation to his owner cannot be changed by, or in any way qualified, regulated or controlled by the laws of the State to which the slave flees. Hence, all the incidents of the right of property in the owner attaches. Under and in virtue of the Constitution “he is clothe (said Judge Story) with entire authority, in every State in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence.”
This clause of the Constitution does not stop with a mere declaration of the right in the owner. It also implies a guaranty, on the part of the national government, to provide the mode and secure the means to make the right available. It says “the slave shall be delivered up on claim of the party to whom such service or labor may be due.”
This imposes a specific duty upon the national government: and “when a duty is enjoined, the power and ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted.”
“Accordingly in pursuance of the plain requirements of the national compact, Congress ha passed two laws providing for the recaption of fugitives from labor. One is the act of February 12, 1793, and the other that of September 18, 1850.
Both of these laws have been the subject of Judicial exposition and interpretation by the Supreme Court of the United States the former in the case of Prigg vs. The Commonwealth of Pennsylvania, 16 Peters R. 539, and the latter in the case of the United States vs. Booth decided at the late December Term of that Court.
In each of these cases the Supreme Court held both acts of Congress referred to, to be clearly constitutional in all their leading provisions, and free from reasonable doubt and difficulty.
It certainly does not become a Court of inferior jurisdiction to entertain a question upon the unconstitutionality of laws, which have been fully considered and decided to be in strict accordance with the Constitution by the highest judicial tribunal of the country.
The objection that the Grand Jury that presented this indictment was selected and empanelled contrary to law, has no foundation in fact.
The Grand Jury were qualified, selected and empanelled as required by the 4th rule of the Circuit Court, which rule obtains in this Court. The legality of that rule is not longer an open question here. Both its legality and propriety were fully affirmed by the Circuit Court in the case of the United States vs. Joseph S. Wilson, 6 McLean 604.
Neither is there any foundation for the declared defect in the indictment, that the said negro John is not alleged to be legally held to service, or that he is held to service under the laws of Kentucky.
The indictment charges, that on the first day of March, 1857, a certain negro slave, called John, a person held to service and labor in the State of Kentucky, one of the United States, the said John being the property of one John G. Bacon, of the said State of Kentucky, the person to whom such service and labor were then due, and so being held to service, the said John did escape to the State of Ohio, &c.
This averment is almost in the precise language of the statute. It has been uniformly held by the Federal Courts, that in indictments for misdemeanors created by statute, it is sufficient to charge the offence in the language of the statute. There is not that technical nicety required as to form, which seems to have been adopted and sanctioned by long practice in cases of felony. United States vs. Mills, 7 Peters R. 142. United States vs. Lancaster 6 McLean 431.
We are clearly of the opinion, that the exceptions to this indictment, both as to form and matters of substance, were not well taken, and that the motion to quash was properly overruled.
The case, then, Gentlemen of the Jury, goes to you for the determination of the issue of fact: - Is the defendant guilty or not guilty of the offence with which he stands charged in the indictment?
The indictment contains but a single count. It charges that on the first day of March, in the year of our Lord one thousand eight hundred and fifty-seven, a certain negro slave called John, a person held to service and labor in the State of Kentucky, one of the United States, the said John being the property of one John G. Bacon, of the said State of Kentucky, the person to whom such service and labor were then due, and the said negro slave called John, to wit: on the day and year last aforesaid, so being held to service and labor as aforesaid, and said service and labor being due as aforesaid, did escape into another State of the United States, to wit: into the State of Ohio, from the said State of Kentucky; that afterwards, to wit: on the first day of October in the year of our Lord one thousand eight hundred and fifty-eight, one Anderson Jennings, the agent and attorney of the said John G. Bacon, duly authorized for that purpose, by power of attorney, in writing, executed by the said John G. Bacon, to wit: on the 4th day of September, A.D. 1858, and acknowledged by him on said day, before Robert A. Cochran, Clerk of the County Court of the County of Mason, in said State of Kentucky, and on said day, certified by said Robert A. Cochran, Clerk as aforesaid, under the seal of said Mason County Court, the said Robert A. Cochran then being a legal officer, and the said Mason County Court then being a legal Court in the said State of Kentucky, in which said State said power of attorney was executed, did pursue and reclaim the said negro slave, called John, into, and in the said State of Ohio, and did, to wit: on the said first day of October, in the year last aforesaid, in said Northern District of Ohio, and within the jurisdiction of this Court, pursue and reclaim the said negro slave, called John, he then and there being a fugitive person as aforesaid, and still held to service and labor as aforesaid, by then and there, on the day and year last aforesaid at the District aforesaid, and within the jurisdiction of this Court, seizing and arresting him as a fugitive person from service and labor, from the said State of Kentucky, as aforesaid; and that the said negro slave called John, was then and there, to wit: on the day and year last aforesaid, in the said State of Ohio, at the District aforesaid, and within the jurisdiction of this Court, lawfully, pursuant to the authority of the statute of the United States, given and declared in such case made and provided, arrested in the custody and under the control of the said Anderson Jennings, as agent and attorney as aforesaid, of the said John G. Bacon, to whom the service and labor as aforesaid of the said negro slave called John, were then and still due as aforesaid, together with one Jacob K. Lowe, then and there, lawfully assisting him, the said Anderson Jennings, in the aforesaid arrest, custody and control of the said negro slave called John. And the Jurors aforesaid do further present and find that Simeon Bushnell, late of the District aforesaid, together with divers, to wit: two hundred other persons, to the Jurors aforesaid unknown heretofore, to wit: on the said first day of October, in the year of our Lord one thousand eight hundred and fifty-eight at the District aforesaid, and with in the jurisdiction of this Court, with force and arms, unlawfully; knowingly and willingly did rescue the said negro slave called John, then and there being pursued and reclaimed, seized and arrested, and in the custody and control aforesaid, he, the said negro slave, called John, being then and there a fugitive from and held to service and labor as aforesaid, from the custody of the said Anderson Jennings, then and there the authorized agent and attorney of the said John G. Bacon as aforesaid, and the said Jacob K. Low, then and there lawfully assisting the said Anderson Jennings as aforesaid; he, the said Simeon Bushnell, then and there, well knowing that the said negro slave called John, was then and there a fugitive person, held to service and labor as aforesaid, and pursued and reclaimed, seized and arrested, and held in custody as aforesaid; to the great damage of the said John G. Bacon.”
The law on which this indictment is predicated is contained in the 6th and 7th sections of the Act of Congress of Sept. 18, 1850.
In the first clause of section 6 it is provided, that, “when a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her or their agent or attorney, duly authorized by power of attorney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which the same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the Courts, Judges or Commissioners aforesaid of the proper Circuit, District or County, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, when the same can be done without process, and by taking, or causing such person to be taken, forthwith before such Court, Judge or Commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner.” &c.
Section 7 declares, “that any person who shall knowingly and willingly obstruct, hinder or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her or them, form arresting such fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue such fugitive from service or labor, form the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared,” (shall be subject to time and imprisonment, &c.)
To effect a conviction of the defendant, the material allegations in the indictment must be established in proof, and the burthen of proof rests on the Government.
These material allegations are, that the negro John was a slave, owing service to John G. Bacon in Kentucky; that said negro escaped from Kentucky to the State of Ohio, and was a fugitive from his master; that he was seized and held by Anderson Jennings and his assistants, by virtue of a power of attorney, lawfully executed by said Bacon, authorizing the capture of the fugitive; - and that the defendant, acting with others at Wellington, knowingly and willingly rescued the slave from the agent of the owner.
That slavery or involuntary servitude exists in Kentucky under the sanction of law, is a matter of which the Federal Courts take judicial notice. The reciprocal relations between the national government and the several states comprising the United States, are not foreign but domestic. Hence the Courts of the United States take judicial notice of all the public laws of the respective States when they are called upon to consider and apply them. It is not a question for the Jury to determine from the evidence whether or not slavery lawfully exists in Kentucky. – That is an enquiry, which belongs solely to the Court, and for the purposes of this trial you will regard slavery as a municipal regulation lawfully established in that State.
Was the negro John a slave owning service to John G. Bacon in Kentucky? This is the first question of fact for your determination from the evidence.
On a question of this kind, the right of the alleged owner in his slave, is to be established by the same rules of evidence as in other contests about the right of property. Ordinarily the fact of possession and notorious claim of ownership, in personal property, is sufficient to establish the prima facto right of ownership. It was declared tat the mere holding a person in involuntary servitude and claiming ownership is not sufficient prima facto evidence of right to overcome the presumption arising from the marks of European descent. But that dark complexion, woolly head and flat nose with possession and claim of ownership, do afford prima facto evidence of the slavery and ownership charged.
Here the prosecution claims to have shown, by the uncontradicted testimony of Bacon, Mitchell and Jennings, that the negro John was held and treated as a slave by John G. Bacon and his father, that the mother of this negro was a slave all her lifetime and bought and sold as such.
Further than this, the pedigree of the negro and the status of his ancestors were not attempted to be traced. Nor was it necessary. For were it traced back to the maternal ancestor of the 1785, no better evidence would or could be furnished. It then could only be proved that the ancestor was a slave, by showing that she had marks of African descent, and was bought and sold as a slave, and held as such. This is precisely the evidence and the only evidence necessary to show the slavery and service, which this negro owed to his master.
It is like any other question of status of the relation of one person to another, which may be shown by the facts and circumstances attending that relation. This may be illustrated by the familiar case of heirship. To establish the fact that A. is the heir of B., it is necessary to prove that there was a lawful marriage and cohabitation and B. the issue of that marriage. But it is competent and sufficient evidence of the heirship that B. treated and recognized A. as his son.
Upon the principles of the common law, then, the testimony of Bacon, Mitchell and Jennings is competent, and if uncontradicted may be deemed sufficient to establish the fact that the negro John was held to service as the slave of John G. Bacon under the laws of Kentucky.
That this slave fled from his master and escaped from Kentucky into the State of Ohio, is an alleged fact, about which the testimony leaves but little room for controversy. Neither can it be seriously controverted that Bacon executed to Jennings a valid Power of Attorney, duly acknowledged and certified, for the reception of the slave.
The next question, to be determined by the evidence, is, did Jennings hold this fugitive by virtue of the power of attorney at the time of the rescue?
The Statute provides that the owner or his agent authorized by power of attorney “may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the Courts, Judges or Commissioners aforesaid, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, when the same can be done without process, and by taking or causing such person to be taken forthwith before such Court, Judge, or Commissioner, &c., &c.
It is true the language of the act is in the alternative. The fugitive may be seized and arrested upon the warrant, or he may be seized and arrested by virtue of the power of attorney. Both modes of capture have the same object, to wit: to bring the fugitive before the Court or Commissioner. The person making the arrest is clothed with the same power and authority in the one case as in the other. He may at the same time provide the means of resorting to either or both modes of capture. Yet when it is alleged in the indictment that the one or the other was adopted, the allegation being material, the proof must support the charge.
You will, therefore, determine from the evidence, whether or not Jennings held the negro John by virtue of the power of attorney from Bacon at the time the rescue was made. If you find in the affirmative on this proposition, then, the enquiry is, was the defendant implicated in the rescue?
If the persons who constituted the assemblage at Wellington on the 13th of September, 1858, had come together for the purpose, or when there, were engaged in rescuing a fugitive slave from those authorized to capture and hold him under the statute of 1850, they were engaged in an unlawful act, and whatever was then said and done by one, in the prosecution of the enterprise, were, to all intents and purposes in law, the declarations and acts of all. To implicate each and all, however it must appear that there was a concert of action for the accomplishment of an unlawful purpose.
It is claimed by the prosecutor that the evidence establishes the riotous and unlawful character of the assembly gathered in and about the hotel at Wellington, in which the negro was confined. And the implication of the defendant in the rescue is urged, on the ground, that the crowd in which he mingled threatened to demolish the building unless the fugitive was surrendered – that the people assembled gave angry demonstrations of violence with fire-arms in their hands and actually rescued the fugitive from his captors. And the further fact is urged, as showing concert of action on the part of the defendant and the crowd, that his buggy was stationed at a convenient distance to receive the negro, that the fugitive was tumultuously placed in it and his escape effected by that defendants’ driving rapidly away.
These are matters of evidence entirely for the consideration of the jury.
And yet, if these facts are as claimed by the Government prosecutor, the defendant is not guilty of the offence with which he stands charged in the indictment, unless it is proved that he acted knowingly and willingly. In other words, it must appear, that he knew the negro was a fugitive from labor, and was lawfully detained by that person or persons who held him captive; or that he acted under such circumstances as to show that he might have had such knowledge by exercising ordinary prudence.
Usually a man is presumed to know and intend the legal consequences of his own acts. It will not answer to say that he can close his eyes and ears against the means of knowledge, and rush deaf and blindly into the performance of that which the law declares a crime. Were it otherwise excesses against legal process, in many cases, might be indulged in with impunity. Criminals might be rescued from lawful caption on the plea of mistake or misapprehension. The language or the statute should receive a reasonable interpretation.
Gentlemen of the Jury, I have, as briefly as possible, given you the rules of law which are deemed to be applicable tot eh case. The evidence submitted I leave in your hands without any comment, as the questions of fact are for your determination.
This case, like every other, which is tried in a court of justice, should be divested of every thing that is extraneous. It is to be determined according to the law and the testimony as delivered to you in Court.
Much has been eloquently said by learned counsel that would be entitled to great weight and consideration if addressed to the Congress of the United States or to an ecclesiastical tribunal, where matters of casuistry are discussed and determined.
After the above charge was delivered, Mr. Backus arose and said:
The Defendant asks the Court to charge the Jury
1st. That in order to warrant a conviction in this case, the testimony must show beyond a reasonable doubt, that eh defendant as charged in said indictment, did “unlawfully, knowingly, and willingly” rescue or assist in rescuing the negro John from the custody of the said Anderson Jennings, the said Jennings then and there having him in his custody as the agent of the said John G. Bacon; but that if the testimony shows that the custody was in Lowe by virtue of a legal warrant, or leaves it in doubt whether said John was, at the time of such rescue in the custody of said Jennings, as such agent, or in that of said Lowe, then and there claiming to hold him by virtue of such legal process, then the defendant should be acquitted.
2d. That such custody could not, at the same time be in said Jennings as such agent, and in said Lowe, either under and by virtue of legal process, or by virtue of any other claim.
3d. That the Power of Attorney in question, in order to be valid, must be shown to have been acknowledged as alleged in said Indictment by said Bacon, before Robert A. Cochran, Clerk of the County Court of the County of Mason in said State of Kentucky – that the said Cochran certified, from his own personal knowledge, to the identity of said Bacon. But that if the acknowledgment was made in no other way than by the appearance of said Bacon before some other person whether such person were or were not authorized by the laws of Kentucky, to do whatever the said Cochran, as such Clerk, could legally do under the laws of Kentucky, then the Power of Attorney was not acknowledged before said Cochran, and this material averment in the indictment is not proved and the defendant must be acquitted.
4th. That although the Deputy Clerk, who is shown to have been the person before whom the said Bacon in fact appeared for the purpose of making this acknowledgment, may by the laws of Kentucky, be a “legal officer,” and therefore authorized by the Act of Congress to take such acknowledgment; yet the acknowledgment in this case neither purports to have been made before him, nor is it averted so to have been made in this indictment; and therefore such authority can add nothing to the validity of this acknowledgment.
5th. That the acknowledgment in this case is void, because it is not certified under the seal of the officer before whom it purports, through a deputy, to have been taken.
6th. That in order to find that John was a slave, and owed service to said Bacon, they must find from the testimony, that by the laws of Kentucky, a person in the condition of John at the time of his alleged escape, might be legally held to service as a slave – that John was in fact the slave of said Bacon at the time of such escape and of said alleged rescue; but that, if the testimony satisfies them that said John G. Bacon derived his title to said John by descent from his father, who died leaving five other children, all of whom are still living, the presumption is, in the absence of testimony showing that a division had taken place of the property of their father, that John was, at the time of his escape and at the time of the alleged rescue, the joint property of all the children; and, there, that the averment of ownership is unproved, and the prosecution must fail.
7th. That before the defendant can be held liable for the acts and declarations of those constituting the assemblage of persons, who are claimed to have been instrumental in the rescue of John, the jury must be satisfied that all of that assemblage, whose acts were given in evidence, were there for the common purpose of illegally obstructing the claimant in the reclamation of John, and that the said defendant there and then was acting in concert with them.
8th. That if the defendant, in his connection with the rescue of John, was honestly of the opinion that John had been illegally seized upon, and was being carried away in violation of law; and the claim of right so to seize and carry him in custody, to be by virtue of a warrant in the hands of said Lowe, then the defendant cannot be convicted of the crime charged in the indictment.
In answer to the above, the Court gave the following special instructions:
1st Request – The proof must show, as I have already said to you, that the fugitive was held by virtue of the power of attorney, and not by virtue of any other legal authority or process.
2d. Request – In legal contemplation such custody could not be in Jennings, the attorney, and in the Marshal, by virtue of lawful process, at the same moment. And it is proper and important for the jury to refer to all the testimony for the purpose of ascertaining whether any legal process was used in the arrest and detention of the negro. Because, unless the evidence clearly shows that a legal process was used, the fugitive cannot be considered as held by process at all, and although the slave might have been taken in the first instance upon a void warrant, it was nevertheless competent for the attorney, by virtue of his power, to take and control him at any time afterwards, and in Ohio no presumption exists that a man (black or white) is properly restrained of his freedom, except on clear proof of legal authority for that purpose.
3d. Request – The power of attorney in order to be valid, must unquestionably, be shown to be acknowledged as alleged in the indictment.
It is a question of fact for the jury to determine, whether William H. Richardson was or was not a deputy clerk of Mason County Court. If he was, his official acts were the acts of Mr. Cochran, who it is admitted, was the clerk of that Court; “qui facit per alium facit per se,” is a maxim that obtains everywhere.
4th Request – Was compiled with.
5th Request – Judge Willson refused to charge as requested.
6th and 7th Requests – Judge Willson refused to give special instructions because the points were covered by the regular charge.
8th Request – Refused. Held that the defendant was bound to make enquiry as to whether John was legally held or not.
The Jury came in at eight minutes after two o’clock this afternoon.
The foreman announced the verdict to be