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wit, on the first day of October in the year of G. Bacon as aforesaid, and the said Jacob K. our Lord one thousand eight hundred and fifty- Lowe, then and there lawfully assisting the said eight, one Anderson Jennings, the agent and Anderson Jennings as aforesaid ; he, the said attorney of the said John G. Bacon, duly au- Simeon Bushnell, then and there, well knowing thorized for that purpose, by power of attorney, that the said negro slave called John, was then in writing, executed by the said John G. Ba- and there a fugitive person, held to service and con, to wit, on the 4th day of September, A. D. labor as aforesaid, and pursued and reclaimed, 1858, and acknowledged by him on said day, seized and arrested, and held, in custody as before Robert A. Cochran, Clerk of the County aforesaid; to the great damage of the said John Court of the County of Mason, in said State of G. Bacon.” Kentucky, and on said day, certified by said The law on which this indictment is prediRobert A. Cochran, Clerk as aforesaid, under cated is contained in the 6th and 7th sections the seal of said Mason County Court, the said of the Act of Congress of September 18, 1850. Robert A. Cochran then being a legal officer, In the first clause of section 6 it is provided, and the said Mason County Court then being a that, “when a person held to service or labor legal Court in the said State of Kentucky, in in any State or Territory of the United States, which said State said power of attorney was ex- has heretofore or shall hereafter escape into ecuted, did pursue and reclaim the said negro another State or Territory of the United States, slave, called John, into, and in the said State the person or persons to whom such service or of Ohio, and did, to wit, on the said first day labor may be due, or his, her, or their agent or of October, in the year last aforesaid, in said attorney, duly authorized by power of attorney, Northern District of Ohio, and within the ju- in writing, acknowledged and certified under said negro slave, called John, head reclaim the the seal of some legal officer or court of the being a fugitive person as aforesaid, and still executed, may pursue and reclaim such fugiheld to service and labor as aforesaid, by then tive person, either by procuring a warrant and there, on the day and year last aforesaid from some one of the Courts, Judges, or Comat the District aforesaid, and within the juris- missioners aforesaid of the proper Circuit, Disdiction of this Court, seizing and arresting him trict, or County, for the apprehension of such as a fugitive person from service and labor, fugitive from service or labor, or by seizing from the said State of Kentucky, as aforesaid; and arresting such fugitive, when the same can and that the said negro slave called John, was be done without process, and by taking, or then and there, to wit, on the day and year causing such person to be taken, forth with belast aforesaid, in the said State of Ohio, at the fore such Court
, Judge, or Commissioner, whose District aforesaid, and within the jurisdiction of duty it shall be to hear and determine the case this Court, lawfully, pursuant to the authority of such claimant in a summary manner,” etc. of the statute of the United States, given and Section 7 declares, “ that any person who declared in such case made and provided, ar- shall knowingly and willingly obstruct, hinder, rested in the custody and under the control of or prevent such claimant, his agent or attorney, the said Anderson Jennings, as agent and at- or any person or persons lawfully assisting him, torney as aforesaid, of the said John G. Bacon, her, or them, from arresting such fugitive from to whom the service and labor as aforesaid of service or labor, either with or without process the said negro slave called John, were then and as aforesaid, or shall rescue, or attempt to still due as aforesaid, together with one Jacob rescue such fugitive from service or labor, K. Lowe, then and there, lawfully assisting him, from the custody of such claimant, his or her the said Anderson Jennings, in the aforesaid agent or attorney, or other person or persons arrest, custody, and control of the said negro lawfully assisting as aforesaid, when so arrested, slave called John. And the Jurors aforesaid do pursuant to the authority herein given and farther present and find that Simeon Bushnell, declared” (shall be subject to fine and imprislate of the District aforesaid, together with di- onment, etc.).” vers, to wit, two hundred other persons, to the To effect a conviction of the defendant, the Jurors aforesaid unknown heretofore, to wit, material allegations in the indictment must be on the said first day of October, in the year of established in proof, and the burden of proof our Lord one thousand eight hundred and fifty- rests on the Government. eight at the District aforesaid, and within the These material allegations are, that the negro jurisdiction of this Court, with force and arms, John was a slave, owing service to John G. Baunlawfully, knowingly, and willingly, did rescue con in Kentucky; that said negro escaped from the said negro slave called John, then and there Kentucky to the State of Ohio, and was a fugibeing pursued and reclaimed, seized and ar- tive from his master; that he was seized and rested, and in the custody and control aforesaid, held by Anderson Jennings, and his assistants, he, the said negro slave, called John, being by virtue of a power of attorney, lawfully exethen and there a fugitive from and held to ser-cuted by said Bacon, authorizing the capture of vice and labor as aforesaid, from the custody of the fugitive; and that the defendant, acting with the said Anderson Jennings, then and there the others at Wellington, knowingly and willingly authorized agent and attorney of the said John rescued the slave from the agent of the owner.
That slavery or involuntary servitude exists. riage. But it is competent and sufficient eviin Kentucky, under the sanction of law, is a dence of the heirship, that B. treated and rematter of which the Federal Courts take ju- cognized A. as his son. dicial notice. The reciprocal relations between Upon the principles of the common law, then, the National Government and the several the testimony of Bacon, Mitchell, and JenStates comprising the United States, are not nings is competent, and if uncontradicted, may foreign, but domestic. Hence the Courts of the be deemed sufficient to establish the fact, that United States take judicial notice of all the the negro John was held to service as the slave public laws of the respective States, when they of John G. Bacon, under the laws of Kentucky. are called upon to consider and apply them. It That this slave fled from his master and esis not a question for the Jury to determine, from caped from Kentucky into the State of Ohio, the evidence, whether or not slavery lawfully is an alleged fact, about which the testimony exists in Kentucky. That is an inquiry which leaves but little room for controversy. Neither belongs solely to the Court'; and for the pur- can it be seriously controverted, thạt Bacon poses of this trial, you will regard slavery as a executed to Jennings a valid power of attorney, municipal regulation, lawfully established in duly acknowledged and certified, for the rethat State.
caption of the slave. Was the negro John a slave, owing service to The next question to be determined by the John G. Bacon in Kentucky? This is the first evidence is, did Jennings hold this fugitive by question of fact for your determination from the virtue of the power of attorney at the time of evidence.
the rescue ? On a question of this kind, the right of the The statute provides that the owner or his alleged owner in his slave, is to be established agent authorized by power of attorney,“ may by the same rules of evidence as in other con- pursue and reclaim such fugitive person, either tests about the right of property. Ordinarily, the by procuring a warrant from some one of the fact of possession and notorious claim of owner- Courts, Judges, or Commissioners aforesaid, for ship, in personal property, is sufficient to estab- the apprehension of such fugitive from service lish the primâ facie right of ownership. It was or labor, or by seizing and arresting such fugideclared by the Court, in the case of Miller v. tive, when the same can be done without proDunnan, that the mere holding a person in in- cess, and by taking or causing such person to be voluntary servitude, and claiming ownership, is taken forthwith before such Court, Judge, or not susicient primâ facie evidence of right to Commissioner,” etc., etc. overcome the presumption arising from the It is true, the language of the Act is in the marks of European descent. But that dark alternative. The fugitive may be seized and complexion, woolly head, and flat nose, with arrested upon the warrant, or he may be seized possession and claim of ownership, do afford and arrested by virtue of the power of attorprimâ facie evidence of the slavery and owner- ney. Both modes of capture have the same ship charged.
object, to wit, to bring the fugitive before the Here the prosecution claims to have shown, Court or Commissioner. The person making by the uncontradicted testimony of Bacon, the arrest is clothed with the same power and Mitchell, and Jennings, that the negro John authority in the one case as in the other. He was held and treated as a slave by John G. Ba- may at the same time provide the means of con and his father; that the mother of this ne- resorting to either or both modes of capture. gro was a slave all her lifetime, and bought and Yet, when it is alleged in the indictment that
the one or the other was adopted, the allegation Further than this, the pedigree of the negro being material, the proof must support the and the status of his ancestors were not attempt-charge. ed to be traced. Nor was it necessary. For, You will, therefore, determine from the eviwere it traced back to the maternal ancestor of dence, whether or not Jennings held the negro 1785, no better evidence would or could be fur- John by virtue of the power of attorney from nished. It then could only be proved that the Bacon, at the time the rescue was made. If ancestor was a slave, by showing that she had you find in the affirmative on this proposition, marks of African descent, and was bought and then the inquiry is, was the defendant implicasold as a slave, and held as such. This is pre- ted in the rescue ? cisely the evidence and the only evidence neces- If the persons who constituted the assemblage sary to show the slavery and service which this at Wellington
which this at Wellington on the 13th of September, 1838, negro owed to his master.
had come together for the purpose, or when It is like any other question of status of the there, were engaged in rescuing a fugitive slave relation of one person to another, which may from those authorized to capture and hold him be shown by the facts and circumstances at- under the statute of 1850, they were engaged tending that relation. This may be illustrated in an unlawful act, and whatever was then said by the familiar case of heirship. To establish and done by one, in the prosecution of the enthe fact that A. is the heir of B., it is necessa-terprise, were, to all intents and purposes in ry to prove that there was a lawful marriage law, the declarations and acts of all
. To imand cohabitation, and B. the issue of that mar- plicate each and all
, however, it must appear
that there was a concert of action for the ac- After the above charge was delivered, Mr. complishment of an unlawful purpose.
BACKUS arose and said : It is claimed by the prosecutor, that the evi- The defendant asks the Court to charge the dence establishes the riotous and unlawful char- Jury, acter of the assembly gathered in and about the 1st. That in order to warrant a conviction in hotel at Wellington, in which the negro was this case, the testimony must show beyond a confined. And the implication of the defend- reasonable doubt, that the defendant, as charged ant in the rescue is urged on the ground that in said indictment, did“ unlawfully, knowingly, the crowd in which he mingled threatened to and willingly” rescue, or assist in rescuing the demolish the building, unless the fugitive was negro John from the custody of the said Ansurrendered - that the people assembled gave derson Jennings, the said Jennings then and angry demonstrations of violence with firearms there having him in his custody as the agent of in their hands, and actually rescued the fugitive the said John G. Bacon; but that if the testifrom his captors. And the further fact is urged, mony shows that the custody was in Lowe by as showing concert of action on the part of the virtue of a legal warrant, or leaves it in doubt defendant and the crowd, that his buggy was whether said John was, at the time of such stationed at a convenient distance to receive rescue, in the custody of said Jennings, as such the negro, that the fugitive was tumultuously agent, or in that of said Lowe, then and there placed in it, and his escape effected by the de- claiming to hold him by virtue of such legal fendant's driving rapidly away.
process, then the defendant should be acThese are matters of evidence entirely for quitted. the consideration of the jury.
2d. That such custody could not, at the same And yet, if these facts are as claimed by the time be in said Jennings as such agent, and in Government prosecutor, the defendant is not said Lowe, either under and by virtue of legal guilty of the offence with which he stands process, or by virtue of any other claim. charged in the indictment, unless it is proved 3d. That the power of attorney in question, that he acted knowingly and willingly. In in order to be valid, must be shown to have other words, it must appear that he knew the been acknowledged as alleged in said indictnegro was a fugitive from labor and was law- ment, by said Bacon, before Robert A. Cochfully detained by the person or persons who ran, Clerk of the County Court of the county held him captive; or that he acted under such of Mason in said State of Kentucky; that the circumstances as to show that he might have said Cochran certified, from his own personal had such knowledge by exercising ordinary pru- knowledge, to the identity of said Bacon. But dence.
that if the acknowledgment was made in no Usually, a man is presumed to know and in- other way than by the appearance of said tend the legal consequences of his own acts. Bacon before some other person, whether such It will not answer to say that he can close his person were or were not authorized by the eyes and ears against the means of knowledge, laws of Kentucky, to do whatever the said and rush deaf and blindly into the performance Cochran, as such clerk, could legally do under of that which the law declares a crime. Were the laws of Kentucky, then the power of attorit otherwise, excesses against legal process in ney was not acknowledged before said Cochran, many cases might be indulged in with impunity. and this material averment in the indictment Criminals might be rescued from lawful caption, is not proved, and the defendant must be acon the plea of mistake or misapprehension. quitted. The language of the statute should receive a 4th. That although the deputy clerk, who is reasonable interpretation.
shown to have been the person before whom Gentlemen of the Jury, I have, as briefly as the said Bacon in fact appeared for the purpose possible, given you the rules of law which are of making this acknowledgment, may by the deemed to be applicable to the case. The evi- laws of Kentucky, be a legal officer," and dence submitted, I leave in your hands without therefore authorized by the Act of Congress to any comment, as the questions of fact are for take such acknowledgment; yet the acknowlyour determination.
edgment in this case neither purports to have This case, like every other which is tried in been made before him, nor is it averred so to a court of justice, should be divested of every have been made in this indictment; and therething that is extraneous. It is to be determined fore such authority can add nothing to the vaaccording to the law and the testimony as de- lidity of this acknowledgment. livered to you in Court.
5th. That the acknowledgment in this case is Much has been eloquently said by learned void, because it is not certified under the seal counsel that would be entitled to great weight of the officer before whom it purports, through and consideration if addressed to the Congress a deputy, to have been taken. of the United States, or to an ecclesiastical tri- 6th. That in order to find that John was a bunal, where matters of casuistry are discussed slave, and owed service to said Bacon, they and determined.
must find from the testimony, that by the laws It is your duty to take the case and return a of Kentucky, a person in the condition of John verdict according to the evidence.
at the time of his alleged escape, might be legally held to service as a slave; that John | mine, whether William H. Richardson was or was, in fact, the slave of said Bacon at the was not a deputy clerk of Mason County Court. time of such escape and of said alleged rescue; If he was, his official acts were the acts of Mr. but that, if the testimony satisfies them that Cochran who it is admitted, was the clerk of said John G. Bacon derived his title to said that Court. " Qui facit per alium facit per se," John by descent from his father, who died leav- is a maxim that obtains everywhere. ing five other children, all of whom are still 4th Request - Was complied with. living, the presumption is, in the absence of 5th Request -- Judge Willson refused to charge testimony showing that a division had taken as requested. place of the property of their father, that 6th and 7th Requests - Judge Willson refused John was, at the time of his escape, and at the to give special instructions because the points time of the alleged rescue, the joint property were covered by the regular charge. of all the children; and, therefore, that the 8th Request --Refused. Held that the deaverment of ownership is unproved, and the fendant was bound to make inquiry as to prosecution must fail.
whether John was legally held or not. 7th. That before the defendant can be held Court adjourned till 2 o'clock. liable for the acts and declarations of those constituting the assemblage of persons, who are
The record of the afternoon's occurrences is claimed to have been instrumental in the rescue
so accurately given by the Reporter of the of John, the jury must be satisfied that all of Cleveland Leader, that we quote it entire, save that assemblage, whose acts were given in evidence, were there for the common purpose of the last two clauses, for which we substitute the illegally obstructing the claimant in the reclama- account of the Evening Herald. tion of John, and that the said defendant there and then was acting in concert with them.
The Court convened in the afternoon at 2 8th. That if the defendant, in his connection o'clock, and a verdict having been agreed upon with the rescue of John, was honestly of the by the Jury, they came in and took their seats. opinion that John had been illegally seized upon, The prisoner being present, the question was and was being carried away in violation of law; put by the Court – and the claim of right so to seize and carry him “ Gentlemen of the Jury, have you agreed away, were given, by those who had him in upon a verdict ?” custody, to be by virtue of a warrant in the “ We have, your Honor.” hands of said Lowe, then the defendant cannot “What is your verdict, Mr. Foreman ?” be convicted of the crime charged in the indict- 66 GUILTY."
The room was filled with spectators, who In answer to the above, the Court gave the heard and received the verdict with quietness
. following special instructions:
It had been expected until the last moment,
but when the Judge charged the Jury in the 1st Request — The proof must show, as I have forenoon, at the request of Mr. BACKUs that it already said to you, that the fugitive was held was necessary to find it proven by the prosecuby virtue of the power of attorney, and not by tion that the boy John was taken and held by virtue of any other legal authority or process. virtue of the power of attorney and not by the
2d Request In legal contemplation such warrant then some hope was entertained that custody could not be in Jennings, the attorney, the decision would be for the defence. But the and in the marshal, by virtue of lawful process, deed is done and the fiat has gone forth that at the same moment. And it is proper and im- Bushnell must submit to the penalties of the portant for the jury to refer to all the testimony Fugitive Slave Act. for the purpose of ascertaining whether any This case having been disposed of, the Dislegal process was used in the arrest and deten- trict-Attorney called the name of Charles tion of the negro. Because, unless the evi- Langston as the next case.
The defence redence clearly shows that a legal process was marked that they were ready in none of the used, the fugitive cannot be considered as held other cases except that of Prof. Peck. The by process at all, and although the slave might District-Attorney insisting upon that of Mr. hay been taken in the first instance upon a Langston, Mr. Spalding thought they might be void warrant, it was nevertheless competent for ready with that case by the time the new Jury the attorney, by virtue of his power, to take was ready to proceed. and control him at any time afterwards, and in Judge Willson said the present Jury was Ohio no presumption exists that a man (black one struck and selected for the term, and it was or white) is properly restrained of his freedom, proper that they should try all the cases. except on clear proof of legal authority for that Mr. BACKUS remarked that he was astonpurpose.
ished to hear his Honor intimate that this Jury, 3d Request - The power of attorney in order who have sat through and upon this case to be valid, must, unquestionably, be shown to heard all the testimony, and who have now in be acknowledged as alleged in the indictment. the presence of the Court rendered a verdict,
It is a question of fact for the jury to deter-' in which their minds are made up and fixed
upon all the important points in the case, are to Loring Wadsworth, James Bartlett, be held competent to try another case almost Richard Winsor, Matthew Gillett, exactly similar ! The ownership of John- Jacob R. Shipherd, O. S. B. Wall, whether he owed service to Bacon whether John H. Scott, Daniel Williams, he was the same John - whether he was le- Ansel W. Lyman,
Henry E. Peck, gally or illegally arrested by Jennings — and W. E. Lincoln, James M. Fitch, whether he was held by virtue of the power of Henry Evans,
Ralph Plumb. attorney or by the warrant
all these points had been heard and determined by these men, These gentlemen being gathered together and could it be pretended that they would come were requested by the marshal to enter their to another trial with no opinions formed in recognizance for their appearance on Monday their own minds? Why, it was an unheard of morning. This being objected to, he, on his and a most villanous outrage on the sense of own authority and responsibility, offered to let justice of the civilized world, and no one of the them go home, if they would give him their defendants would so stultify himself as to at- parole of honor that they would return on Montempt a defence before such a jury. He had day morning, with the exception of Mr. Bushnever known or heard of such a mockery of nell
, whom he would be obliged to retain. that justice which should prevail in every Court. Through Prof. Peck as their spokesman, and It was a terrible, not to say a monstrous pro- according to th
cording to the advice of their counsel, they ceeding, the like of which had never been passed a resolution by which they agreed after known since courts were first in existence. due consultation to inform the marshal that, in
The Court remarked that the Jury would asmuch as the District-Attorney had placed decide each case upon the evidence offered in them in his custody they would remain there that particular case, and there was no occasion until relieved by due course of law. They for excitement or intemperate zeal to be ex- would give no bail
, enter no recognizance, and hibited, as the rule would be enforced.
make no promises to return to the Court. Judge SPALDING then announced that if a They said this with hearty thanks to the Jury who had settled upon a decision upon marshal for his courtesy in the treatment of his every important point except identity, were prisoners. expected to try every case, then the District- This decision having been made known, the Attorney could call the accused up as fast as marshal informed them of the necessity of plache pleased and try them, for neither would ing them in confinement, to which they made they call any witnesses for the defence nor ap- no objection. All this time the outside passage pear by attorney before such a jury.
and halls (the doors having been kept locked) “Very well," replied Judge BELDEN, were filled with an eager crowd watching and “then I ask the Court to order these men all waiting for an insight into the Temple of Justice, into the custody of the marshal.”
and waiting for the exodus of the prisoners. At The Court then ordered the marshal to length the door opened, and the marshal, arm in take the prisoners into custody, when Judge arm with the venerable and white haired Mr. SPALDING requested that their recognizances Gillett, headed the procession, while after them might be cancelled. The COURT also ordered came the culprits two by two, with their shawls, the marshal to send immediately for such of the carpet-bags and valises, all arrayed and equipped indicted as were not in the Court-Room. for a few days' visit to Wightman's Castle.
Court now adjourned to Monday morning at On arriving at the jail they were kept wait10 o'clock, the counsel for the defence giving ing for some time in the rain, while Sheriff notice that they should consider it their duty to Wightman hesitated about receiving them as challenge the Jury at that time. Before the prisoners unless advised to do so by the County adjournment of Court, the DISTRICT-ATTOR- Commissioners, fearing that the county propNEY moved that the defendants be released erty might be endangered, and wishing some from the custody of the marshal on renewing advice in the matter. Ultimately he received their recognizances with sureties to the satis- them as guests, until the decision of the Comfaction of the clerk. ;
missioners was made known. After a long and The Court replied that the terms heretofore anxious session those gentlemen reluctantly complied with would be sufficient, namely, per- consented to the use of the jail for the purpose, sonal recognizances in the sum of $1,000 each. and the accused were received as prisoners.
Immediately after the adjournment the room They are, however, well, cared for, provided was cleared of all save the following persons, with apartments in that part of the jail kept as who had been called up by the marshal as thé a private dwelling, are well fed, and treated accused (a few had previously gone home on with every kindness and courtesy. permission of the District Attorney), their So far are they from being cowed by their counsel, and the marshal :
imprisonment, that they enjoy themselves as
well as is possible under the circumstances. Charles Langston,
Wilson Evans, Last night most appropriate and affecting religJohn Watson,
David Watson, ious services were held in their apartments. Simeon Bushnell,
They have been visited by large numbers a