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missible to ascertain the meaning. 2d. Where vided for the surrender of fugitives from service the words are not plain and clear, but the in other cases than that mentioned in the Conmeaning ambiguous or uncertain, is the only stitution ; that while the provision of the Concase where interpretation is allowable; that stitution was only for the delivering up of fugicontemporaneous history, or interpretation, can tives " held to labor in one State under the laws only be resorted to, to escape some absurd con- thereof,” the act provides for the surrender of sequence, or guard against some fatal evil, etc. fugitives “held to service or labor in any State,"

He insisted that the meaning of the clause, merely. The act was as general in its terms as “No person held to service or labor," etc., any law upon the statute book, and its provisunder which the power to legislate was claimed ions were applicable to all other general laws, for Congress, was neither uncertain or doubt- to every person within the State. It was, thereful; and that the maxim, " It is not allowable fore, not only unconstitutional, in that it was ento interpret what has no need of interpretation,” acted without power, and in authorizing unreaought to apply; that the clause was a naked sonable seizures, and in cases not provided for compact, the same as the two preceding clauses, by the Constitution, withholding due which, while standing in the Articles of Confede- law, and denying a right of trial by jury, etc., ration, had been named and regarded as mere but was, in its provisions, à flagrant subversion compacts. He urged that power to Congress of the municipal laws of the States for the probeing expressed in section first and section third tection of the personal rights of their citizens. of article four, and not expressed in section In determining the constitutionality of the fugisecond, the maxim expressio unius, etc., applied tive law under consideration, and upon which with double force. He insisted that the plain the conviction and sentence rest, the act is to and obvious sense of the clause was simply a be regarded as one equally applicable to any treaty stipulation, the same as the one providing free citizen of the State against whom a claim that « The citizens of each State shall be entitled for service may be preferred by the provisions to all privileges and immunities of citizens of the thereof. several States," and was never intended, and He referred to the various judicial opinions could not have been understood, to be a cession expressed, some incidentally, and others directly of powers to Congress to legislate. He denied in favor of the authority of Congress to legisthat contemporaneous history was admissible, late upon the subject of fugitives. The case of inasmuch as the people adopted the Constitu- Prigg v. Pennsylvania (16 Peters, 539), is the tion, not upon history which was not submitted only case relied upon in which the Supreme to them, but upon the letter of the text which Court of the United States has ever attempted was; and when submitted to them, they must to offer any reason for the claim of power in be presumed to have read and understood it Congress on the subject. The question was not according to its obvious meaning.

then necessarily before the Court for decision; Referring, however, to contemporaneous his- their opinion expressed in that case was, theretory, he showed very clearly that nothing fore, necessarily, only an obiter dictum; and could be gained from that source, even if though expressed in favor of the power, it was allowable to refer to it, to show that it was only by an acknowledged disregard of the geneither understood or intended that power should eral rules of construction, applicable to the Conbe delegated to Congress to legislate in rela- stitution, and upon a mistaken statement of contion to fugitives from service. The Fugitive temporaneous history and this

, too, when reflaw of 1793 was passed for the proposed object erence to contemporaneous history was not of reclaiming fugitives from justice, with very admissible, éven if correctly stated. The Van little attention given to the bill at the time, Zandt case (5th Howard, 229) was only a rethat the question of power was not considered. affirmance of the former opinion; as is the But the States, on the other hand, claimed and opinion recently pronounced in the case of the exercised the power of legislating upon the United States v. Booth. same subject; and the States continued to He also referred to the contrary opinions as legislate upon the subject until the decision of maintained and expressed by Mr. Jefferson and the Prigg case in 1842.

Mr. Madison, in their resolutions of 1798, inHe then remarked upon objectionable features troduced into the legislatures of Virginia and of the Fugitive Law of 1850; the commission- Kentucky, in relation to the power of Congress ers were vested with judicial powers unconsti- to pass an act concerning aliens." He also tutionally. By the provisions of the law the referred to the opinions of Chancellor Walright of trial by jury and due process of law worth, Chief Justice Hornblower, Judge Baldwere denied in violation of express provisions win, and Mr. Webster, maintaining that Conof the Constitution ; that the provisions of the gress had no power to pass a fugitive law, inConstitution guaranteeing these rights, being sisting that the power belonged, under the contained in the amendments of the Constitu- Constitution, to the States alone to legislate tion, they must have full force, however they upon the subject. may qualify the right of the claimant to a sum- Speaking of the previous decisions of the mary removal of the person owing service. He Supreme Court upon the subject, and the relaremarked that the Fugitive Law of 1850 pro- tions of the State Judiciary to the Federal, he

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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 petition of the relator from Cincinnati the Supreme Court of the State --- in a case was dismissed, as the return showed that the clearly of importance to the State or its citizens, sufficient to justify such a course, and under proceedings against him in the United States circumstances which would dictate such exer- Court were still pending and undetermined. cise of their discretion - not to suffer a ques. The case was similar to the first application in tion to be settled, as to any case coming before behalf of Mr. Bushnell. them, against their clear convictions of the constitutional rights of the State, or its citizens.

The opinions were scarcely read, beHe 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 WIGIITMAN 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

The Sheriff being otlerwise advised by his States whenever usurped by the Federal Gov

unsel, and assured that such conduct would renEntertaining these views, he added, and, af- der him liable for false imprisonment as well as for ter carefully examining the Constitution and “constructive" contempt of the Supreme Court, the Act of Congress in question, with the aid declined obedience to this order, and discharged of all the reasons and light afforded by the various opinions and authorities referred to, hay- 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.

cour

ernment.

CHAPTER FIFTH.

INDICTMENT AND ARREST OF THE

KIDNAPPERS,

IN gratifying contrast with the charge of this State; or to attempt to kidnap or forcibly Judge Willson to the Grand Jury that indicted or fraudulently carry off or decoy out of this the Rescuers, we place on record here, as intro- State, any such free black or mulatto with the

intention of having such person carried out of ductory to the

this State, unless in pursuance of the laws thereof.

It also (Sec. 2), makes it an indictable mis

demeanor, 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.

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 Gentlemen of the Grand Jury: -- Your Pros-decoy out of this state, any such black or muecuting Attorney, as a very pertinent part of latto, without first taking such black or mulatto his duty, has requested me to call your atten- before the court, judge, or commissioner of the tion to the acts to prevent kidnapping. There proper circuit, district, or county having jurisis a statute against kidnapping white persons. diction, according to the laws of the United Its provisions are plain and I need only men-States in cases of persons held to service or lation it.

bor in any State, escaping into this State, and The Statute passed April 17, 1857, Sec. 1, there, according to the laws of the United makes it an indictable misdemeanor, to arrest States, establishing by proof the claimant's and imprison or kidnap, or decoy out of this property in such person. State, any free black or mulatto person, within It will be seen that this statute contemplates

CHARGE OF JUDGE CARPENTER.

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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 authoritativo

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 enanother 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 slave

The misdemeanor here defined, then, is the holding States, as well as of all others. Slavery, claiming of any black or mulatto, within Ohio, then, being against the law of nature, and exwhether free or not free, to be a fugitive from isting only by positive local law, it is clear that service or labor, and the getting, or attempting this positive local law cannot extend beyond the to get him out of Ohio before such claim has jurisdiction of the power which makes it. It is been legally proved, with intent to enforce such equally clear, that the right of this local law to claim. The gist of the offence is the getting, hold a slave cannot go farther than this law can or attempting to get him out of the State be- go itself; that the slave, having a natural right fore he is proved to be a fugitive slave, with in- to freedom, and being held a slave only by a tent to hold him as such.

local law which violates that right, the moment The Constitution of Ohio inhibits slavery, he is beyond the arm of that local law, his and regards all persons as free except criminals. natural right to freedom resumes its empire. No doubt, however, the legislative intendment The instant, therefore, the slave, by any means of the second section of this statute refers to not as a fugitive, crosses our boundary, he is slavery as the condition of certain persons in baptized in the air of freedom; and that bapother States, and as the possible condition of tism is irrevocable. 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 Passing over the question, then (upon which tion and return in case of tlie 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 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-l 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

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 prison and 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 enlargeIt would not change this presumption, to show ment is illegal. that the prisoner had been a slave in a slavel Certainly, the slave's coming here by the act

of recapence,

of God, is not an escape. And since the slave have the people of Ohio distinguished any status can exist only by the concomitancy of other resident person in respect of color, than the Slave law, and since the Slave law can be whites, blacks, and mulattoes. By necessary concomitant with his person here only by the implication, those male citizens of the United slave's escaping hither, his coming hiere by the States in Ohio who are not entitled to vote act of God must leave his status as a slave be- at all elections, are not whites, but are blacks hind him, and invest him with the inevitable or mulattoes. Did the people of Ohio, in status of a freeman.

adopting their Constitution, mean to exclude Nor ought the master to complain of this in- from their Bill of Rights men whom, in the evitable necessity. Ought he to complain of same. instrument, they declared to be citiinevitable death? And, if not, he ought not zens of the United States ! Not at all. This to complain of an act of God which releases construction is confirmed by article nine, sechim with no worse result to the master, but a tion one, 6 All white male citizens residents result always due a slave by the law of nature of this State . shall be enrolled in the Should the whirlwind which releases the slave militia,” etc. Now, here it is provided that by death be blameléss, and the whirlwind which those who are to be enrolled shall be made citistops short of death, but drops him in a free zens, be residents; be whites. But this necesState, be blamable ? In cach case, the Slavė sarily implies, first, that there are male citizens law would end because the slave was beyond its here who are not residents of this State; and, jurisdiction by the act of God.

therefore, this word“ citizens,” must here probaIs there any thing, then, in the case, which bly mean citizens of the United States : and, secshould palsy our law, whenever the man thus ondly, that there may be citizens of the United freed might claim its protection ? Neither the States here who are not whites, and, therefore, law of nature, nor the common law, nor any are either blacks or mulattoes. Or if the word enactment, nor any comity of State, indicates " citizens” here means citizens of Ohio, then any such thing.

| blacks and mulattoes may be citizens of Ohio. If, then, the evidence should convince you This presumption of universal freedom is supof an attempt forcibly or fraudulently to carry ported by the common sentiment which gave off or decoy out of this State any black or mu- our nation birth; and which, therefore, may latto, or to arrest or imprison any such person, well be regarded as a part of our common law. with intent to have him carried out of this state, It is expressed in our Declaration of Independnot in pursuance of the laws of Ohio, and if

a declaration of 10: new discoveries. you do not find from evidence that he came in- | It was but the utterance of principles so comto Ohio by an actual escape from service or mon, so pervasive and so long felt that they labor, whatever the proof may be that he had were there set forth as an indisputable law of been a slave, you will hold him to be free, and human nature. I know that there is a puerile that the act described was a misdemeanor, for cavil, that the language --- All men are crewhich you will indict whomsoever you find to ated equal, and are endowed by their Creahave committed it.

tor with certain unalienable rights among In this position, that the law presumes every these are life, liberty, and the pursuit of hapman in Ohio to be free, I am upheld by the piness was not intended to include black Constitution of this. State, as well as by that of inen. It requires more than ordinary patience the United States.

to answer this cavil, when we remember that Our Bill of Rights begins, “ Sec. 1. All men the very point in dispute between the colonies are by nature free and independent. Sec. 2. and the mother country was whether the sovAll political power is inherent in the people. ereignty of Great Britain was illimitable, or was Government is instituted for their equal protec- limited by the equal and unalienable rights of tion and benefit."

all mankind; the administration claiming that Does any caviller pretend that the words, the sovereignty of the King and Parliament 6 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,

a

ss.

The second section of this statute, as before nine days, when I brought them before the stated, provides for the case of one claimed as Court as within I am commanded. a fugitive from service or labor, and prohibits

H. E. Burr, Sheriff. any attempt to get him out of the State, except as prescribed by the laws of the United

This indictment being found defective in the States.

orthography of Mr. Mitchell's first name, It is very probable the highest judicial authority of Ohio would hold so much of that new one was returned as follows: United States statute, known as the Fugitive The State of Ohio, ? Slave Law, as authorizes the recaption and return of one claimed as a fugitive without the trial by jury, to be unconstitutional. But, as At a term of the Court of Common Pleas, this criminal statute seems to recognize that begun and holden at the Court House, in provision of the Fugitive Slave Law as valid, Elyria, within and for the County of Lorain, we pass by that question, to note what, if it is and State of Ohio, on the seventeenth day o not more favorable to liberty, is, at least, less May, in the year of our Lord one thousand favorable to tyranny. The only person au- eight hundred and fifty-nine, the Jurors of the thorized by that act, to pursue and reclaim Grand Jury, good and lawful men of the such fugitive, either by warrant, or by seizing county aforesaid, then and there duly returned, him without warrant, is, first, the master, or, tried and sworn, and charged to inquire within secondly, “ his agent or attorney, duly author- and for the body of the county aforesaid, at ized by power of attorney, in writing, ac- the term of the Court aforesaid, upon their knowledged and certified under the seal of some oaths aforesaid, and in the name and by the legal officer or court of the State or Territory authority of the State aforesaid, do find and in which the same may be executed.”

present, that Anderson Jennings, Jacob K. Any person but the master of the actual Lowe, Samuel Davis, and Richard P. Mitchell, fugitive, or his agent or attorney, authorized in on the thirteenth day of September in the year every particular as above stated - by power of one thousand eight hundred and fifty-eight, attorney, in writing, acknowledged and certi- with force and arms at the county aforesaid, fied under seal strictly as prescribed by the unlawfully did arrest and imprison one John statute -- any person, but the master, not thus Price, the said John Price then and there being fortified as agent, who, claiming such fugitive, a free black person then and there within the has, within this county, done or attempted as State of Ohio, with intent then and there and expressed in this criminal statute by process of thereby of having said John Price carried out the United States or without it, violated the law of the said State of Ohio; the same not being of Ohio, and should be indicted at your hands. in pursuance of any law of the State of Ohio,

He who handles edge tools must run the contrary to the form of the statute in such risk of cutting his own flesh. The severity of cases made and provided, and against the peace that old judge, who, if the extortioner would and dignity of the State of Ohio. have his pound of flesh, because it was so nom

And the Jurors aforesaid on their oaths inated in the bond, would hold his life the for- aforesaid do farther present and find that the feit if he shed one drop of blood, was but the said Anderson Jennings, Jacob K. Lowe, Samseverity of simple justice.

uel Davis and Richard P. Mitchell on the thir

teenth day of September in the year one On the 15th of February, 1859, the Grand thousand eight hundred and fifty-eight, at the Jury, thus charged, returned a true bill against there being, the said John Price being a black

county aforesaid, one John Price then and Rufus P. Mitchell, Anderson Jennings, Jacob person then and there within the State of Ohio, K. Lowe, and Samuel Davis, for kidnapping and claimed as a fugitive from service, did then and attempting to carry out of the State in an and there with force and arms unlawfully and unlawful manner, a negro boy named John the State of Ohio, without first taking him, the Price.

said John Price, before the Court, Judge, or Upon this a warrant was issued to the sheriff Commissioner of the proper circuit, district, or of Lorain county, which he returned indorsed county having jurisdiction according to the

laws of the United States in cases of persons thus:

held to service or labor, in any of the United State of Ohio,

States, escaping into the State of Ohio, and Lorain County, S

then and there having jurisdiction according to

said laws in the case of said John Price so I executed this writ by taking the body of claimed as a fugitive from service, and then the within named Anderson Jennings, Samuel according to the laws of the United States Davis, and Rufus P. Mitchell, May 11, 1859, establishing by proof their property in him the and Jacob K. Lowe, April 4, 1859, and re- said John Price, without the consent of the tained them in my custody for the period of said John Price, and against his will, and cono

SS.

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