Under the fourth section of the Act of 12 February, 1793,
respecting fugitives from justice and persons escaping from the
service of their master, on a charge for harboring and concealing
fugitives from labor, the notice need not be in writing by the
claimant or his agent, stating that such person is a fugitive from
labor under the third section of the above act, and served on the
person harboring or concealing such fugitive, to make him liable to
the penalty of five hundred dollars under the act.
Such notice, if not in writing and served as aforesaid, may be
given verbally by the claimant or his agent to the person who
harbors or conceals the fugitive, and to charge him under the
statute a general notice to the public in a newspaper is not
necessary.
Clear proof of the knowledge of the defendant, by his own
confession or otherwise, that he knew the colored person was a
slave and fugitive from labor, though he may have acquired such
knowledge from the slave himself, or otherwise, is sufficient to
charge him with notice.
Receiving the fugitive from labor at three o'clock in the
morning, at a place in the State of Ohio about twelve miles distant
from the place in Kentucky where the fugitive was held to labor,
from a certain individual, and transporting him in a closely
covered wagon twelve or fourteen miles, so that the boy thereby
escaped pursuit, and his services were thereby lost to his master,
is a harboring or concealing of the fugitive within the
statute.
A transportation under the above circumstances, though the boy
should be recaptured by his master, is a harboring or concealing of
him within the statute.
Such a transportation, in such a wagon, whereby the services of
the boy were entirely lost to his master, is a harboring of him
within the statute.
A claim of the fugitive from the person harboring or concealing
him need not precede or accompany the notice.
Any overt act so marked in its character as to show an intention
to elude the vigilance of the master or his agent, and which is
calculated to attain such an object, is a harboring of the fugitive
within the statute.
In this particular case, the first and second counts contain the
necessary averments that Andrew, the colored man, escaped from the
State of Kentucky into the State of Ohio.
Page 46 U. S. 216
They also contain the necessary averments of notice that said
Andrew was a fugitive from labor, within the description of the act
of Congress.
The averments in the said counts, that the defendant harbored
said Andrew, are sufficient.
Said counts are otherwise sufficient.
The Act of Congress approved February 12, 1793, is not repugnant
to the Constitution of the United States.
The said act is not repugnant to the ordinance of Congress,
adopted July, 1787, entitled, "An Ordinance for the government of
the territory of the United States northwest of the River
Ohio."
This was an action of debt, brought by Jones, a citizen of
Kentucky, against Van Zandt, a citizen of Ohio, for a penalty of
five hundred dollars, under the Act of Congress passed on 12
February, 1793, for concealing and harboring a fugitive slave
belonging to the plaintiff. The act is found in 1 Stat. 302.
The 3d and 4th sections, which were the only ones involved in
this case, are as follows:
"§ 3. Be it enacted, that when a person held to labor in any of
the United States, or in either of the territories on the northwest
or south of the River Ohio, under the laws thereof, shall escape
into any other of the said states or territory, the person to whom
such labor or service may be due, his agent or attorney, is hereby
empowered to seize or arrest such fugitive from labor, and to take
him or her before any judge of the circuit or district courts of
the United States, residing or being within the state, or before
any magistrate of a county, city, or town corporate, wherein such
arrest or seizure shall be made, and, upon proof to the
satisfaction of such judge or magistrate, either by oral testimony
or affidavit taken before and certified by a magistrate of any such
state or territory, that the person so seized or arrested doth,
under the laws of the state or territory from which he or she fled,
owe service or labor to the person claiming him or her, it shall be
the duty of such judge or magistrate to give a certificate thereof
to such claimant, his agent or attorney, which shall be a
sufficient warrant for removing the said fugitive from labor to the
state or territory from which he or she fled."
"§ 4. That any person who shall knowingly and willingly obstruct
or hinder such claimant, his agent or attorney, in so seizing or
arresting such fugitive from labor, or shall rescue such fugitive
from such claimant, his agent or attorney, when so arrested,
pursuant to the authority herein given or declared, or shall harbor
or conceal such person, after notice that he or she was a fugitive
from labor as aforesaid, shall, for either of the said offenses,
forfeit and pay the sum of five hundred dollars; which penalty may
be recovered by and for the benefit of such claimant, by action
of
Page 46 U. S. 217
debt, in any court proper to try the same, saving, moreover, to
the person claiming such labor or service his right of action for
or on account of the said injuries, or either of them."
The suit was brought in the Circuit Court of Ohio, in June,
1842. The declaration consisted of four counts, the two last of
which were abandoned in the progress of the cause. As the remaining
two --
viz., the first and the second -- are commented
upon by the court, it is deemed proper to insert them. They are as
follows:
"
First Count -- Concealing"
"Wharton Jones, a citizen of and resident in Kentucky, by
Charles Fox, his attorney, complains of John Van Zandt, a citizen
of and resident in Ohio, was summoned to answer unto the plaintiff
in a plea of debt for that whereas a certain person, to-wit,
Andrew, aged about thirty years, Letta, aged about thirty years, on
23 May, in the year eighteen hundred and forty-two, at Boone
county, in the State of Kentucky, was the slave of, and in
possession of the plaintiff, and his property, and owed service and
was held to labor to the plaintiff by the laws of Kentucky,
unlawfully, wrongfully, and unjustly, without the license or
consent and against the will of the plaintiff, departed and went
away from, and out of the service of the plaintiff, at said Boone
County, and came to the defendant at Hamilton County, in the State
and District of Ohio, and was there a fugitive from labor, and the
defendant, well knowing that said Andrew was the slave of the
plaintiff, and a fugitive from labor, yet afterwards, to-wit, on
the day and year aforesaid, at said district, contriving, and
unlawfully and unjustly intending to injure the plaintiff, and to
deprive him of said slave, and of his service, and of the profits,
benefit, and advantages that might and would otherwise have arisen
and accrued to him from said slave and his service, did then and
there, and there knowingly and willingly, wrongfully, unjustly, and
unlawfully receive the said slave of the plaintiff into his
service, and knowingly and willingly harbor, detain, conceal, and
keep the said slave, in consequence of which the plaintiff lost
said slave, and was deprived of his services and of all benefits,
profits, and advantages which might and would have arisen and
accrued to him from such slave and his service, contrary to the
statute of the United States in such case made and provided,
whereby the defendant forfeited the sum of five hundred dollars to
and for the use of the plaintiff; yet the defendant, though often
requested, has not paid the same, nor any part thereof."
"
Second -- Concealing"
"And also for that whereas, on the day and year aforesaid, at
said Boone County, a certain person, to-wit, Andrew, aged about
thirty years, was the slave of, and in the possession of the
plaintiff,
Page 46 U. S. 218
and his property, and owed service, and was held to labor to the
plaintiff by the laws of the State of Kentucky, did unlawfully,
wrongfully, and unjustly, without the license or consent and
against the will of the plaintiff, depart and go away from and out
of his service, to-wit, at Boone County aforesaid, and came to
Hamilton County in the State and District of Ohio, to the
defendant; and the defendant had notice that the said Andrew was
the slave of the plaintiff, and a fugitive from labor; yet
afterwards, to-wit, on the day and year aforesaid, at the district
aforesaid, contriving, and wrongfully and unjustly intending to
injure the plaintiff, and deprive him of the said slave, and of his
service, then and there, on the day and year aforesaid, at the
district aforesaid, knowingly and willingly, unjustly, wrongfully,
and unlawfully conceal the said slave from the plaintiff, in
consequence of which the plaintiff lost said slave, and was
deprived of his service, and of all profits, benefits, and
advantages which might and otherwise would have arisen and accrued
to the plaintiff from such slave and his service, contrary to the
statute of the United States in such cases made and provided,
whereby the defendant forfeited the sum of five hundred dollars, to
and for the use of the plaintiff. Yet, though often requested, he
has not paid the same, nor any part thereof."
The defendant pleaded the general issue, and in July, 1843, the
cause came on for trial. The jury found a verdict for the
plaintiff. The substance of the evidence given upon the trial was
agreed upon by the counsel who argued the cause in this Court, as
will be seen by the following,
viz.:
"The undersigned, of counsel respectively for Jones and Van
Zandt, now under submission to the court, agree that the statement
of the evidence as contained in the opinion of his honor, the
circuit judge, on the trial below, shall be taken and considered by
the court in the same manner as if it were a part of the record,
and certified by the circuit court."
"J. H. MOREHEAD"
"
26th February, 1847 Of counsel for Jones"
"WILLIAM H. SEWARD"
"
Of counsel for defendant Van Zandt"
The evidence thus adopted by agreement was stated by MR. JUSTICE
McLEAN in the trial below, as follows.
See 2 McLean
597.
"Jones, a witness called by the plaintiff, stated that the
plaintiff owned nine negroes (naming them) and resided in Boone
County, Kentucky. That the greater part of them were born his, and
that he purchased the others. That on Saturday evening, 23 April,
1842, about nine o'clock, he was at the house of the plaintiff and
saw the negroes; the next day, at about 12 o'clock, he saw the
Page 46 U. S. 219
same negroes, with the exception of two of them, in the jail at
Covington. The plaintiff lives ten miles below Covington. Jackson,
one of the absent negroes, returned in a few days; but Andrew
remained absent, and has not been reclaimed."
"The plaintiff paid a reward to the persons who returned the
negroes, of four hundred and fifty dollars, and other expenses
which were incurred, amounting in the whole to about the sum of six
hundred dollars. Andrew was about thirty years old, and his
services were worth to the plaintiff six hundred dollars. That he
could be sold in Kentucky for that sum."
"Several other witnesses corroborated the statements of this
witness, as to the ownership of the negroes, the reward paid, and
the value of the services of Andrew."
"Hefferman, a witness, stated, that he lives in Sharon, thirteen
miles north of Cincinnati, on the road to Lebanon. That on Sunday
morning, a little after daylight, he saw a wagon which was rapidly
passing through Sharon. It was covered, and both the hind and fore
part of the wagon were closed; a colored man was driving it. He
knew the wagon belonged to the defendant, and his suspicion was
excited. The witness, and one Hargrave, another witness, started,
in a short time, in pursuit of the wagon. They overtook it near
Bates', about six miles from Sharon. The defendant lives near
Sharon. On coming up with the wagon, the boy driving it was ordered
by Hargrave to stop; he checked the horses, but a voice from within
the wagon directed the boy to drive over him. The wagon horses were
then whipped, running against Hargrave's horse, which threw him
off. The horses were driven in a run some two hundred yards, but at
length were overtaken by the witness, who, seizing the reins of the
horses, drew them up into a corner of a fence. The driver jumped
off and ran some distance; Van Zandt, the defendant, then came out
of the wagon, and took the lines, but the witness refused to let
the horses proceed. Eight negroes were in the wagon; one of them,
called Jackson, and Andrew, the driver, escaped; the other seven
were brought back to Covington, and lodged in jail."
"Hargrave -- accompanied the above witness in pursuit of the
wagon, which he knew to belong to the defendant. Being acquainted
with the defendant, he knew it to be his voice which directed the
colored boy to drive over the witness. That the wagon tongue being
driven against the horse of the witness, he was thrown, and the
wagon horses were driven on the run, until overtaken and stopped.
Seeing the defendant in the wagon, with the negroes, the witness
asked him if he did not know they were slaves. The defendant
replied, that he knew they were slaves, but that they were born
free. He said he was going to Springboro', a village in Warren
County. This witness, and also Hefferman, stated the amount paid as
a reward, for bringing the negroes to Covington, as above. "
Page 46 U. S. 220
"Hume -- very early on Sunday morning saw the wagon moving very
rapidly, and two men on horseback pursuing it, near Bates'. Looked
into the wagon, after it was stopped, and saw the defendant in it,
with the negroes. He was asked if he did not know that they were
slaves, and he replied, that by nature they were as free as anyone.
Witness took the negroes to Covington in a wagon. Sometime after
this, he saw the defendant, who said to him, 'If you had let me
alone, the negroes would have been free, but now they are in
bondage.' And the defendant said it was a Christian act to take
slaves and set them at liberty."
"Bates, a witness, states that he went to the wagon after it had
been stopped, looked into it, and saw the defendant with the
negroes. The witness said, 'Van Zandt, is that you? have you a load
of runaways?' The defendant replied, 'They are, by nature, as free
as you and I.' The witness heard the defendant say that, having
been at market in the City of Cincinnati, he returned to Lane
Seminary, a distance of two or three miles, to spend the night with
Mr. Moore. That he left his wagon standing in the road, and when he
came to it, about three o'clock the next morning, he found the
negroes standing near it; that he did not know how they came there,
or where they wished to go. He had no conversation with them. He
geared his horses, hitched them to the wagon, and the negroes got
into it. He afterwards said that he had received the blacks from
Mr. Alley."
"McDonald, a witness, stated that he heard the defendant say he
received the negroes on Walnut Hills, the same place as Lane
Seminary. That at three o'clock on Sunday morning, he found the
negroes standing near his wagon, in the road; they got into it, and
he started for home. That he rose early to have the cool of the
morning. Defendant said he had done right. That he would at all
times help his fellow man out of bondage; and that what he had done
he would do again."
"Thurman, a witness, stated that he saw the defendant in the
wagon with the negroes, the cover closed behind and before. The
defendant said to Hefferman, the negroes ought to be free, but he
knew they were not. The defendant lives at Sharon, and this was six
or seven miles beyond, on the road to Lebanon."
After the rendition of the verdict in the court below, the
counsel for the defendant filed reasons in support of a motion for
a new trial, and also reasons in support of a motion for arrest of
judgment, which were, respectively, as follows,
viz.:
"JOHN VAN ZANDT ads. WHARTON JONES"
"
Circuit Court of United States, 7th Circuit
and"
"
District of Ohio -- In Debt -- Verdict
$500"
"The defendant, John Van Zandt, by his counsel, moves the court
for a new trial, and assigns the following reasons: "
Page 46 U. S. 221
"1. The court erred in charging the jury that it was not
necessary to prove that the defendant intentionally placed the
colored persons in question out of view, for the purpose of eluding
the search of the master or his agent, in order to establish the
fact of concealment, or to prove that he received, sheltered, and
placed them out of view for said purpose, in order to establish the
fact of harboring; but charged that it was sufficient, if the jury
believed, from the evidence, that the defendant received the
colored persons into his wagon, and transported them to Bates' from
Walnut Hills, with intent to facilitate their escape from their
master."
"2. The court erred in charging the jury that it was not
necessary, in order to establish the plaintiff's right to recover,
to prove actual notice to the defendant from the claimant, or
someone acting in his behalf, that the persons alleged to be
harbored or concealed by him were fugitives from labor, within the
meaning of the act of Congress; but charged, that it was sufficient
if the jury should be satisfied, from the evidence, that the
defendant knew that such persons were fugitives from labor."
"3. The verdict is against evidence."
"4. The verdict is against law."
"CHASE & BALL,
Attorneys for Def't"
"JOHN VAN ZANDT ads. WHARTON JONES"
"
Circuit Court of United States, 7th
Circuit"
"
and District of Ohio -- In Debt"
"The defendant, by his counsel, moves the court to arrest
judgment on the verdict rendered in this cause for the following
reasons:"
"I. Because the plaintiff's declaration, and the allegations
therein contained, are insufficient in law to warrant said
judgment."
"1. In this that in no count of said declaration has the
plaintiff averred that the person or persons therein described as
fugitives from labor were held to service under the laws of the
State of Kentucky, and, being so held, escaped from that state into
the State of Ohio."
"2. In this that the act of Congress referred to in said
declaration is unwarranted by, or repugnant to, the Constitution of
the United States, and therefore null and void."
"3. That the said act, so far as it applies to the case made in
the plaintiff's declaration, is repugnant to the sixth article of
the ordinance for the government of the territory of the United
States northwest of the River Ohio, and therefore, so far, null and
void."
"4. In other respects."
"II. Because the verdict rendered by the jury is general,
whereas it ought to have been confined to the good count, or
counts, in said declaration."
"CHASE & BALL,
Attorneys for Def't"
Page 46 U. S. 222
"In order to bring these questions before the Supreme Court, the
judges below differed
pro forma, and a certificate was
made out, showing that their opinions were opposed on the following
points:"
"First. Whether, under the 4th section of the Act of 12
February, 1793, 'respecting fugitives from justice, and persons
escaping from the service of their masters, on a charge for
harboring and concealing a fugitive from labor,' the notice must be
in writing by the claimant, or his agent, stating that such person
is a fugitive from labor, under the 3d section of the above act,
and served on the person harboring or concealing such fugitive, to
make him liable to the penalty of five hundred dollars under the
act."
"Secondly. Whether such notice, if not in writing and served as
aforesaid, must be given verbally by the claimant or his agent to
the person who harbors or conceals the fugitive, or whether, to
charge him under the statute, a general notice to the public in a
newspaper is necessary."
"Thirdly. Whether clear proof of the knowledge of the defendant,
by his own confession or otherwise, that he knew the colored person
was a slave and fugitive from labor, though he may have acquired
such knowledge from the slave himself, or otherwise, is not
sufficient to charge him with notice."
"Fourthly. Whether receiving the fugitive from labor at three
o'clock in the morning, at a place in the State of Ohio about
twelve miles distant from the place in Kentucky where the fugitive
was held to labor, from a certain individual, and transporting him
in a closely covered wagon twelve or fourteen miles, so that the
boy thereby escaped pursuit, and his services were thereby lost to
his master, is not a harboring or concealing of the fugitive within
the statute."
"Fifthly. Whether a transportation, under the above
circumstances, though the boy should be recaptured by his master,
is not a harboring or concealing of him within the statute."
"Sixthly. Whether such a transportation, in an open wagon,
whereby the services of the boy were entirely lost to his master is
not a harboring of him within the statute."
"Seventhly. Whether a claim of the fugitive from the person
harboring or concealing him must precede or accompany the
notice."
"Eighthly. Whether any overt act, so marked in its character as
to show an intention to elude the vigilance of the master or his
agent, and which is calculated to attain such an object, is a
harboring of the fugitive within the statute."
"The cause having progressed, and the jury brought in their
verdict, the defendant moved in arrest of judgment, and assigned
sundry reasons in support of his motion, on some of which points
the opinions of the judges were opposed, to-wit:"
"First. Whether the first and second counts contain the
necessary
Page 46 U. S. 223
averments, that Andrew, the colored man, escaped from the State
of Kentucky into the State of Ohio."
"Secondly. Whether said counts contain the necessary averments
of notice that said Andrew was a fugitive from labor, within the
description of the act of Congress."
"Thirdly. Whether the averments in said counts, that the
defendant harbored said Andrew, are sufficient."
"Fourthly. Whether said counts are otherwise sufficient."
"Fifthly. Whether the act of Congress, approved February 12,
1793, be repugnant to the Constitution of the United States."
"Sixthly. Whether said act be repugnant to the ordinance of
Congress, adopted July, 1787, entitled, 'An ordinance for the
government of the Territory of the United States northwest of the
River Ohio.'"
MR. JUSTICE WOODBURY delivered the opinion of the Court.
This case comes here on a division of opinion in the Supreme
Court of Ohio.
The subject matter of the original suit was debt for a penalty
of $500, under the Act of Congress of February 12, 1793, for
concealing and harboring a fugitive slave belonging to the
plaintiff.
The certificate of the division of opinion, as will be seen in
the record, relates to various questions, arising under two
heads.
Page 46 U. S. 224
First, on rulings made at the trial, and, secondly, on a motion
in arrest of judgment.
These questions extend to the unusual number of fourteen. Not,
however, that the presiding judge in the circuit and his associate
entertained strong doubts concerning the general principles
involved in them all, as may be seen in the report of the case (2
McLean 615), but because the questions involved could not otherwise
be brought here, and they possessed so wide and deep an interest,
as to render it desirable they should come under the revision of
this Court.
For that purpose, in conformity to what is understood to have
been the usage in the circuits, they accommodated the parties by
letting a division
pro forma be entered on all the points
presented.
It is not understood that any of them embrace things urged
merely as reasons for a new trial. For if they did -- as such a
trial rests in the discretion of the court, and is not a matter of
strict right -- a division of opinion in relation to it furnishes
no cause for bringing the case here for our decision on questions
certified.
United States v.
Daniell, 6 Wheat. 542;
17 U. S. 4 Wheat.
213;
9 U. S. 5 Cranch 11,
9 U. S. 187; 4
Wash.C.C. 333.
Before entering on the examination of the points, it will make
several of them more intelligible, if we advert to the clause in
the Constitution bearing on this subject, and the act of Congress
under which the action was instituted.
The former is that
"No person held to service or labor in one state, under the laws
thereof, escaping into another, shall, in consequence of any 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."
Art. IV., § 2.
In respect to the statute, it will not be necessary to repeat
here any of it, except portions of the 3d and 4th sections:
"§ 3. And be it also enacted that when a person, held to labor
in any of the United States or in either of the territories on the
northwest or south of the River Ohio, under the laws thereof, shall
escape into any other of the said states or territory, the person
to whom such labor or service may be due, his agent or attorney, is
hereby empowered to seize or arrest such fugitive from labor."
"§ 4. And be it further enacted, that any person who shall
knowingly and willingly obstruct or hinder such claimant, his agent
or attorney, in so seizing or arresting such fugitive from labor,
or shall rescue such fugitive from such claimant, his agent or
attorney, when so arrested pursuant to the authority herein given
or declared, or shall harbor or conceal such person, after notice
that he or she was a fugitive from labor, as aforesaid, shall, for
either of the said offenses, forfeit and pay the sum of five
hundred dollars."
1 Stat. 303, 305, Act of Feb. 12, 1793.
Page 46 U. S. 225
The first question at the trial on which a division arose was,
in substance, whether the "notice" referred to in the 4th section
must be in writing.
No doubt exists with this Court that it may be otherwise than in
writing, if it only bring home clearly to the defendant knowledge
that the person he concealed was "a fugitive from labor."
The offense consists in continuing to secrete from the owner
what the acts of Congress and the Constitution, as well as the laws
of several of the states, treat for certain purposes, as property,
after knowing that claims of property exist in respect to the
fugitive.
Now the act of Congress does not, in terms, require the notice
to be in writing, nor does the reason of the provision, nor the
evil to be guarded against, nor any sound analogy.
The reason of the provision is merely, that the party shall have
notice or information sufficient to put him on inquiry, whether he
is not intermeddling with what belongs to another.
If the information given to him, orally or in writing, is such
as ought to satisfy a fair-minded man that he is concealing the
property of another, it is his duty under the Constitution and laws
to cease to do it longer.
Eades v. Vandeput, 5 East 39,
note;
Blake v. Lanyon, 6 T.R. 221.
Such a notice is sufficient also by way of analogy; as, for
instance, notice in relation to a prior claim on property
purchased.
The Ploughboy, 1 Gall. 41; 9 Ju. 649; 1 Sumn.
173;
5 U. S. 1 Cranch 45.
Or of a prior defense or set-off against a demand assigned to him.
Humphries v. Blight's Assignees, 4 Dall. 370 [omitted]. Or
even in crimes, that the notes or coin one is passing away are
counterfeit.
Any other construction would go, likewise, beyond the evil to be
avoided by the notice, which was the punishment of an individual
for harboring or concealing a person, without having reasonable
grounds to believe he was thereby injuring another.
Any other construction, too, would be suicidal to the law
itself, as before a notice in writing could be prepared and served
on the defendant, the fugitives would be carried beyond the reach
of recovery in many cases, and in others would have passed into
unknown hands.
This is not a case like some cited in the argument, where the
party prosecuted was not concerned in getting away the apprentice
or person harbored, but merely entertained him afterwards from
hospitality, or in ignorance of his true character and
condition.
Then a more formal notice and demand of restoration may be
proper, before suit, in order to remove any doubts as to the
condition of the fugitive who is thus entertained, or the intent of
the master to enforce his rights and reclaim his property. 1 Chit.
Gen.Pr. 449. But verbal notice is enough then.
See the
cases in East and T.R. just cited.
Page 46 U. S. 226
Besides this, the present is a case where the defendant was a
partaker in accomplishing the escape itself, like a
particeps
criminis, and where the concealment and harboring were not
after the escape was over, but during its progress, while the
slaves were
in transitu; and where the notice is not
exclusively with a view to procure their restoration, but is also
an element in the case to show whether the party was, knowingly or
ignorantly as to their condition, rendering them assistance to
escape by temporarily harboring or secreting them. So far as
regards this point, it is a question merely of scienter. No matter
how or whence the knowledge came, if it only existed. The
concealment here was practiced during fresh pursuit to retake the
slaves, and hence, without any formal notice or demand, no doubt
could exist as to the wish to reclaim them, as well as the fact of
their being slaves.
See Hart v. Aldridge, Cowp. 54.
Furthermore, that the defendant has not suffered by the charge
to the jury on this point is manifest from his own declarations at
the time, that he knew the fugitives to be slaves,
Jones v. Van
Zandt, 2 McLean 559, and from the instruction to the jury that
this fact must be clearly proved before they ought to convict him,
p. 607.
This view of the subject disposes of several other points of
division connected with it. Because every purpose contemplated by
the notice is accomplished, without a publication of it previously
in a newspaper, which is the second question.
To require such a publication would be entirely arbitrary, and
would still more surely defeat the whole law than to hold the
notice must be in writing, and served on the defendant, before he
is liable.
So, as to the third question, whether the information be
sufficient if acquired from the slave himself -- it is manifest
that such a source of information for that fact is one of the most
satisfactory, as he has good means of knowing it, and is not likely
to admit his want of freedom, unless it actually exist.
The next question relates to what constitutes concealment or
harboring of a slave, within the meaning of this statute.
It seems from the facts, which by agreement are all those
reported in the printed case as tried in the court below, 2 McLean
596, as well as those inserted in this record, that several slaves,
owned by the plaintiff in Kentucky, escaped from him and fled to
Ohio, adjoining, and, aided by some person not named, and when
about twelve miles distant from their master's residence, were
taken into a covered wagon by the defendant in the night, and
driven with speed twelve or fourteen miles, so that one was never
retaken, though fresh suit was made for the whole.
Now whatever technical definition may exist of the word
"conceal" or "harbor," as applied to apprentices or other subjects,
no
Page 46 U. S. 227
doubt can exist, that these words and their derivatives must
here be construed in reference to the matter of the statute, and
the nature of the offense to be punished.
These show this offense to consist often in assistance to
escape, and reach speedily some distant place, where the master
cannot find or reclaim such fugitives, rather than in detaining
them long in the neighborhood, or secreting them about one's
premises.
We see nothing, then, in the facts here, or in the instruction
of the judge on them,
secundum subjectam materiam, which
shows this case not to have been, as the jury found it to be, one
within the manifest design of the statute against harboring and
concealing persons who were fugitives from labor, after notice, or
full knowledge of their character.
Indeed, the general definition of the word "harbor" in 1 Bouvier
460, as quoted by the defendant's counsel -- saying nothing as to
the authority of that work -- is such as to be fully covered by the
facts in this case, as stated in the record, and as found by the
jury. It is
"to receive clandestinely, and without lawful authority, a
person for the purpose of concealing him, so that another, having
the right to the lawful custody of such person, shall be deprived
of the same."
There was a clandestine reception of the slaves, and without
lawful authority, and a concealment of them in a covered wagon, and
carrying them onward and away, so as to deprive the owner of their
custody. "To harbor" is also admitted in the argument often to mean
"to secrete." Such is one of the established definitions by the
best lexicographers. Yet here they were secreted, not only, as just
stated, by being placed in a covered wagon, and carried to a
greater distance from their master, but it was done rapidly, and in
part under the shades of night.
That no mistake on this point occurred at the trial is likewise
manifest from the fact, that the judge charged the jury, the
defendant must not be considered as harboring or concealing the
salves, unless his conduct was such, "as not only to show an
intention to elude the vigilance of the master, but such as is
calculated to attain that object." 2 McLean 615.
Nor can the recovery of one of the slaves afterwards, who was
thus concealed and transported, vary the previous fact of secreting
and harboring him. That is the fifth inquiry. The answer to the
sixth is involved in that to the fourth and fifth; as is an answer
to the seventh in that to the first question. Because, if the
notice need not come from the claimant himself, nor be in writing,
it need not be preceded or accompanied by a claim, which is the
seventh inquiry. A claim subsequently made must be equally valid
with one before the notice, whether looking to the reason of the
case, or the language of the statute.
The gist of the offense consists in the concealment of
another's
Page 46 U. S. 228
property, under knowledge that it belongs to another, and not in
a claim being previously made and refused. That refusal might
constitute a separate wrong, or be another species of evidence to
prove a harboring of the slave, but it is not the offense itself,
for which the penalty now sued for is imposed.
The eighth and last question under this head seems to be an
abstract proposition, and does not refer to any particular facts in
the case. But if it was laid down in relation to some of them, as
it must be presumed to have been in order to make it a proper
subject for a division of opinion, to be reconsidered here, we are
not aware of anything objectionable in it. The "overt act" spoken
of was required to be one both intended and calculated to elude the
master's vigilance. If so, it showed acts and designs of the
defendant, which in the words and spirit of the statute amount or
tend directly to "harbor" or "conceal" the fugitive from labor.
We shall now proceed to the points of division in respect to the
motion in arrest. They are, firstly, whether the counts contain the
necessary averments, that the slave Andrew escaped from Kentucky to
Ohio.
It is admitted that, this prosecution being a penal one, the
declaration must bring it within the statute clearly, whether
looking to its language or spirit. Dwarris on Statutes 736; 5 Dane,
Abr., 244, § 8;
Simmon's Case, 4 Wash.C.C. 397. It is not
necessary to multiply authorities on so elementary a
proposition.
On turning to the counts, however, it will be seen that they
allege the residence of the plaintiff in Kentucky -- the ownership
by him of these slaves, held to labor there -- and their
"unlawfully," and "without his consent," going from that place to
Ohio, as "fugitives from labor." All these allegations combined,
and not merely the "going" away, are a clear and sufficient
averment of an escape of the slave Andrew under the first objection
in arrest. If they contain sufficient matter to show an escape, it
need not be alleged in the very words,
ipsissimis verbis,
of the statute. 1 Chit.Pl., 357;
The King v. Stevens, 5
East 244.
The ungrammatical use of the word "was" for "were," in speaking
of both slaves, is urged as an uncertainty which vitiates this part
of the declaration. But no one can doubt that both are referred to,
and the more especially after a verdict. As to what is thus covered
by a verdict,
See Garland v.
Davies, 4 How. 131, and the cases there cited, and
11 Wend. 374.
The second point certified under the motion in arrest is whether
the "counts contain the necessary averments of notice that said
Andrew was a fugitive from labor within the description of the act
of Congress."
We cannot doubt that they do, when the first count alleges that
said Andrew was in Ohio, "a fugitive from labor, and the defendant,
well
knowing that said Andrew was the slave of the
plaintiff, and a fugitive from labor," &c., did harbor and
conceal him.
Page 46 U. S. 229
So in respect to the third question connected with the arrest of
judgment, which is whether the averments are sufficient under the
statute as to harboring the slave Andrew, the answer can be but one
way. However strict the construction should be, yet the count
alleges, in so many words, that the defendant did "knowingly and
willfully
harbor, detain,
conceal, and keep said
slave."
Under the fourth general objection of insufficiency in the
declaration, no specific point, not otherwise designated, has been
called to our attention, except that all the acts alleged in the
declaration are not said to be "contrary to the statute." This last
expression follows the concluding portion of the count, and this
expression may be necessary in a penal declaration.
Lee, v.
Clark, 2 East 332; 1 Gall. 259, 265, 271; 1 Chit.Pl. 358.
But all know, that where it is inserted at the end of a
declaration or indictment, it does not, as a general rule, relate
to the last preceding averments alone, but the whole subject matter
before alleged to constitute an offense. It is all that misconduct
which is contrary to the statute, and not the concluding part of it
only.
It remains to consider the fifth and sixth divisions of opinion
under this head. They are, whether the act of Congress, under which
the action is brought, is repugnant either to the Constitution, or
the ordinance "for the government of the territory northwest of the
River Ohio."
This Court has already, after much deliberation, decided that
the Act of February 12, 1793, was not repugnant to the
Constitution. The reasons for their opinion are fully explained by
Justice Story in
Prigg v.
Pennsylvania, 16 Pet. 611.
In coming to that conclusion they were fortified by the idea,
that the Constitution itself, in the clause before cited, flung its
shield, for security, over such property as is in controversy in
the present case, and the right to pursue and reclaim it within the
limits of another state.
This was only carrying out, in our confederate form of
government, the clear right of every man at common law to make
fresh suit and recapture of his own property within the realm. 3
Bl.Com. 4.
But the power by national law to pursue and regain most kinds of
property, in the limits of a foreign government, is rather an act
of comity than strict right, and hence, as the property in persons
might not thus be recognized in some of the states in the Union,
and its reclamation not be allowed through either courtesy or
right, this clause was undoubtedly introduced into the
Constitution, as one of its compromises, for the safety of that
portion of the Union which did permit such property, and which
otherwise might often be deprived of it entirely by its merely
crossing the line of an adjoining state. 3 Madison Papers 1569,
1589.
This was thought to be too harsh a doctrine in respect to
any
Page 46 U. S. 230
title to property -- of a friendly neighbor, not brought nor
placed in another state, under its laws, by the owner himself, but
escaping there against his consent, and often forthwith pursued in
order to be reclaimed.
The act of Congress, passed only four years after the
Constitution was adopted, was therefore designed merely to render
effective the guarantee of the Constitution itself; and a course of
decisions since, in the courts of the states and general
government, has for half a century exhibited great uniformity in
favor of the validity as well as expediency of the act. 5 Serg.
& R. 62; 9 Johns. 67; 12 Wend. 311, 507; 2 Pick. 11; Baldw.
326; 4 Wash.C.C. 326; 18 Pick. 215.
While the compromises of the Constitution exist, it is
impossible to do justice to their requirements, or fulfill the duty
incumbent on us towards all the members of the Union, under its
provisions, without sustaining such enactments as those of the
statute of 1793.
We do not now propose to review at length the reasoning on which
this act has been pronounced constitutional. All of its provisions
have been found necessary to protect private rights, under the
cause in the Constitution relating to this subject, and to execute
the duties imposed on the general government to aid by legislation
in enforcing every constitutional provision, whether in favor of
itself or others. This grows out of the position and nature of such
a government, and is as imperative on it in cases not enumerated
specially, in respect to such legislation, as in others.
That this act of Congress, then, is not repugnant to the
Constitution must be considered as among the settled adjudications
of this Court.
The last question on which a division is certified relates to
the ordinance of 1787, and the supposed repugnancy to it of the Act
of Congress of 1793.
The ordinance prohibited the existence of slavery in the
territory northwest of the River Ohio among only its own people.
Similar prohibitions have from time to time been introduced into
many of the old states. But this circumstance does not affect the
domestic institution of slavery, as other states may choose to
allow it among their people, nor impair their rights of property
under it, when their slaves happen to escape to other states. These
other states, whether northwest of the River Ohio, or on the
eastern side of the Alleghenies, if out of the Union, would not be
bound to surrender fugitives, even for crimes, it being, as before
remarked, an act of comity, or imperfect obligation.
Holmes v.
Jennison, 14 Pet. 540. But while within the Union,
and under the obligations of the Constitution and laws of the
Union, requiring that this kind of property in citizens of other
states -- the right to "service or labor" -- be not discharged or
destroy it, they must not interfere to impair or destroy it, but,
if one so held to labor escape into
Page 46 U. S. 231
their limits, should allow him to be retaken and returned to the
place where he belongs. In all this there is no repugnance to the
ordinance. Wherever that existed, states still maintain their own
laws, as well as the ordinance, by not allowing slavery to exist
among their own citizens, 4 Mart. 385. But in relation to
inhabitants of other states, if they escape into the limits of
states within the ordinance, and if the Constitution allow them,
when fugitives from labor, to be reclaimed, this does not interfere
with their own laws as to their own people, nor do acts of Congress
interfere with them, which are rightfully passed to carry these
constitutional rights into effect there, as fully as in other
portions of the Union.
Before concluding, it may be expected by the defendant that some
notice should be taken of the argument, urging on us a disregard of
the Constitution and the act of Congress in respect to this
subject, on account of the supposed inexpediency and invalidity of
all laws recognizing slavery or any right of property in man. But
that is a political question, settled by each state for itself; and
the federal power over it is limited and regulated by the people of
the states in the Constitution itself, as one of its sacred
compromises, and which we possess no authority as a judicial body
to modify or overrule.
Whatever may be the theoretical opinions of any as to the
expediency of some of those compromises, or of the right of
property in persons which they recognize, this Court has no
alternative, while they exist, but to stand by the Constitution and
laws with fidelity to their duties and their oaths. Their path is a
strait and narrow one, to go where that Constitution and the laws
lead, and not to break both, by traveling without or beyond
them.
Let our opinion on the several points raised be certified to the
circuit court of Ohio in conformity to these views.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio, and on the points and questions on which the judges of the
said circuit court were opposed in opinion, and which were
certified to this Court for its opinion, agreeably to the act of
Congress in such case made and provided, and was argued by counsel;
on consideration whereof, it is the opinion of this Court:
1st. That, under the fourth section of the Act of 12 February,
1793, respecting fugitives from justice, and persons escaping from
the service of their master, on a charge for harboring and
concealing fugitives from labor, the notice need not be in writing
by the claimant or his agent, stating that such person is a
fugitive from labor, under the third section of the above act, and
served on the person harboring or concealing such fugitive, to make
him liable to the penalty of five hundred dollars under the
act.
Page 46 U. S. 232
2d. That such notice, if not in writing and served as aforesaid,
may be given verbally by the claimant or his agent, to the person
who harbors or conceals the fugitive, and that to charge him under
the statute, a general notice to the public in a newspaper is not
necessary.
3d. That clear proof of the knowledge of the defendant, by his
own confession or otherwise, that he knew the colored person was a
slave and fugitive from labor, though he may have acquired such
knowledge from the slave himself, or otherwise, is sufficient to
charge him with notice.
4th. That receiving the fugitive from labor at three o'clock in
the morning, at a place in the State of Ohio, about twelve miles
distant from the place in Kentucky where the fugitive was held to
labor, from a certain individual, and transporting him in a closely
covered wagon twelve or fourteen miles, so that the boy thereby
escaped pursuit, and his services were thereby lost to his master,
is a harboring or concealing of the fugitive within the
statute.
5th. That a transportation under the above circumstances, though
the boy should be recaptured by his master, is a harboring or
concealing of him within the statute.
6th. That such a transportation, in such a wagon, whereby the
services of the boy were entirely lost to his master, is a
harboring of him within the statute.
7th. That a claim of the fugitive from the person harboring or
concealing him need not precede or accompany the notice.
8th. That any overt act, so marked in its character as to show
an intention to elude the vigilance of the master or his agent, and
which is calculated to attain such an object, is a harboring of the
fugitive within the statute.
9th. That the first and second counts contain the necessary
averments, that Andrew, the colored man, escaped from the State of
Kentucky into the State of Ohio.
10th. That said counts contain the necessary averments of notice
that said Andrew was a fugitive from labor within the description
of the act of Congress.
11th. That the averments in said counts, that the defendant
harbored said Andrew, are sufficient.
12th. That said counts are otherwise sufficient.
13th. That the Act of Congress approved February 12, 1793, is
not repugnant to the Constitution of the United States. And,
Lastly. That the said act is not repugnant to the ordinance of
Congress adopted July, 1787, entitled, "An ordinance for the
government of the Territory of the United States northwest of the
River Ohio."
It is thereupon now here ordered and adjudged by this Court,
that it be so certified to the said Circuit Court of the United
States for the District of Ohio.
