It matters nothing in law, to be sure, since it is not Jennings, the only man who could seize him, or direct it to be done for him; but as illustrating the animus of the whole transaction, the question is one of some interest. The carriage containing the worthy trio, Lowe, his assistants Davis and Mitchell, overtakes and draws up along side of that in which the unsuspecting John is riding leisurely along with the little decoy Shakespeare. And now who seizes John? Mitchell, who may be said to be in the State of Ohio in some sort by the procurement of the owner, John G. Bacon? No. Lowe, the United States Deputy-Marshal, with a warrant in his pocket, under which he comes to act in behalf of the United States, and for the preservation of its essential "peace and dignity," orders his Davis. Yes, Davis seizes John, as deputy-marshal Lowe's assistant, being the man farthest of all removed from the agent, Jennings, himself, who alone had any authority whatever to make the arrest under the power of attorney. Davis seizes John, and then Mitchell comes to his assistance, while Lowe holds the horses! And Mitchell says he then and there showed John the power of attorney. But his excellent confederate, Jennings, swears positively that he had it at that time in his own pocket, at the Russia House. Rather an unfortunate difference of opinion! Mr. Mitchell may come up to the requisitions of a witness in the State of Kentucky, but for this latitude, is rather too pointedly contradicted by Jennings, if Jennings may be permitted to contradict anybody, concerning which I grant that it is pushing legal impudence about as far as it will go. But why hasn't Lowe and his man Davis been placed upon this stand to swear that Lowe sunk his high character as a deputymarshal of the United States, and that he took some part of the authority vested in Jennings by the power of attorney, and by virtue of this fraction arrested the boy? and that he did not act as a marshal under his warrant if that is true. Can there be a particle of a reasonable doubt concerning the real capacity in which Lowe acted? He came as a marshal armed with a warrant to be served by a marshal, went out with his assistant and did serve it, and arrested John and held him as a marshal; which he cannót and dare not deny. But, Gentlemen, when after that brief separation upon this benignant mission, the two streams of authority, one flowing from the owner and the other from the United States, united again at Wellington, is there, then, any giving up of the less to the greater, and Jennings assuming the control of John? Nothing of the kind. In the first place he couldn't do it, and in the second place you know absolutely and positively that he never did do it. It might just as well be said that a man who arms a sheriff with a writ of replevin, goes to a neighboring town, points out the property to be taken, and pays the bills at the tavern including of course the "smiles” — could say that the property taken by the officer was in his (the owner's) custody. Such a custody is the custody of the law and not of the owner. What sort of an arrangement was there between Lowe and Jennings- a joint possession? There can never be a joint possession. The officer captures the entire animal, holds the entire animal, returns the entire animal to the magistrate, who either gives up the entire animal to the owner, or entirely discharges him. I know, your Honor, that the very proposition shows its monstrous absurdity, and that the custody of the owner is completely, wholly, and entirely inconsistent with the custody of the law. The law tolerates no joint custody whatever. It takes the whole man, holds the whole man, and awards the whole man either to the claimant or to himself. Were it otherwise we might have the singular case of the commissioner discharging that part of the man arrested, and held by a marshal while the owner would retain his part. But let us pursue the question of fact a little farther. When they arrive at Wellington and the crowd gathers, and the inquiry is sent up "Who holds this colored man, and by what authority?"--who is announced to the crowd? The best answer is found in the entire testimony itself upon this point. Permit me to read to you all there is of it bearing on this point. And first on the part of the Government, which may be condensed as follows. J. G. Bacon. Made power of attorney to Anderson Jennings. Anderson Jennings. Had power of attorney. Had it at Wellington, and showed it to the crowd. Fifteen or twenty of them looked at it inside the room. Sheriff came to arrest us; wanted to know by what authority we held John. Showed him the papers. R. P. Mitchell. Power of attorney read to them [at Wellington]. Thinks a lawyer read it. Several asked by what authority we held John. Told them by power of attorney from Bacon to Jennings. Think Lowe showed John power of attorney at the time of arrest. Think John had it in his hand. A. S. Halbert. Patton said that he had seen the papers, and that they were good. Jacob Wheeler. Saw Jennings' power of attorney. Lowe called on all of us for help. Lowe would go anywhere and show his papers. Did go somewhere to read them to crowd. "Barnabas Meacham. Asked Lowe to go out and read his warrant, and I would see him back. We went. Stopped on steps a few rods from hotel. He began to read, and some one else finished. Went back. I told the crowd he had a warrant. Isaac Bennett. Saw a warrant issued by United States Commissioner of the Southern District; also, a power of attorney. Told sev Chauncey Wack. Patton said the papers were right. Said nothing of any power of attorney. eral that Lowe had a warrant to arrest John attorney never transpired to that crowd outside Price. Warrant was read. Think it was.in any form. Lowe came forward, and claimed The paper shown me by Lowe was a warrant, that He held the boy in HIS custody. And this made by United States Commissioner, Southern Mr. Jennings all the while hid his ponderous District. Somebody put in my hands a power proportions behind Lowe. He did so when Mr. of attorney. When I spoke to crowd, told them Bennett went up and confronted him. Nobody of the warrant, and may have said "papers." but Lowe came forward, and if he showed any Saw no other manifestation of the marshal's power of attorney, it was only to prove that authority. the warrant was sworn out by one duly authorized. I know that Mitchell comes up here and swears that it was a power of attorney which was shown to Mr. Dickson, just as if Mr. Proof on this point by defence. Dickson, a lawyer of extensive practice there, Joseph H. Dickson, lawyer at Wellington. and recently the District-Attorney of that Meacham, the constable, came for me and said county, couldn't tell a power of attorney from they wanted to see me. Took me in. Lowe a warrant, after reading it through carefully, as introduced himself to me as the United States he himself swears he did, and especially didn't Marshal who held John. Showed me the war-know whether the power of attorney was rant under which he held him. I read it care- properly executed, when if he saw it as it is fully. Noticed it had no seal. Lowe said it here, he saw it in due form, and with the broad, needed none. Saw no power of attorney, and staring seal of Mason county, Kentucky, upon heard not a word said about any. A man, it! And it is altogether probable that he said whom I now recognize as Jennings, offered of a power of attorney, as Mitchell swears posihim (John) for fourteen hundred dollars. I tively he did (and this Mr. Dickson corroborates told him he was not worth that in Kentucky. as applied to the warrant of the United States Said he thought he knew the value of niggers. Commissioner shown him), that he " was n't Another, a red-whiskered man, said he'd better much conversant with that class of papers, and take twelve hundred dollars. I supposed the could not consequently say positively whether man who offered to sell him was the owner. it was accurately made out or not!" Said nothing to undeceive me; nothing about being agent, or having any power of attorney. Told crowd of the warrant. Never heard of power of attorney till I came here into Court. : And who told Dickson he was going to take John to Columbus? Jennings? Oh, no. But Lowe, the Marshal, says, "I am going to take him to Columbus before the U. S. Commissioner." James L. Patton. Went up. Lowe took me And who went out at the call of the crowd, to into adjoining room. Told me he was the mar-exhibit the authority by whom and which John shal. Showed me the warrant issued by the was held? The elegant and accomplished Mr. United States Commissioner, Southern District. Jennings, who was himself three times as interI read it. That was all the authority shown esting an object to view, and who certainly could me, all the paper I saw or heard of. Never have been seen without placing himself upon heard of power of attorney till after this trial any very elevated stand-point? No, not he; began. but Mr. Jacob K. Lowe, the redoubtable deputy William Howk, Justice of the Peace at Wel-U. S. Marshal of the Southern District of Ohio, lington. William Sciples said the marshal who went out under the protection of Mr. Patwanted to see me. Went up. Marshal showed ton, a student from the infected district of Obera paper understood to be a warrant. Had no lin. This gentle Mr. Patton took the represenglasses with me and couldn't read it. Think Itative of the United States of North America saw the word "Columbus" on it. Lowe went out and read it to the crowd, as I understood. Said he was going to take the boy to Columbus. A committee might be appointed to go with him. Never heard of power of attorney till in the course of this trial. Talked with Bennett about the warrant. patronizingly under his arm, and conducting him out into that dangerous crowd, read his warrant for him, under which alone it was claimed to that crowd that the negro was held, and then led him safely back again. Not one word of a power of attorney; not one glimpse of Jennings, who alone had power to hold the negro a single moment under it. I know that Mitchell swears that the power of attorney was shown to Patton and Howk; but I know farther that they both swear positively that they never so much as heard of a power of attorney until they heard of it with amazement first in this Court-Room. The warrant alone, which our less favored eyes are Now, Gentlemen, can there be a particle of not permitted to see, was shown; the warrant doubt as to who held that boy on that occa- -for withholding which the Prosecution have sion, or by what authority he held him? Did their own, and doubtless good and sufficient reaJennings come forward to show his power of sons, and without seeing which we must probaattorney? Not a word of it. That power of bly live out the remnant of our days, and die L. S. Butler, law-student. Stood by Lowe and Patton when the warrant was read. Noticed there was no seal. No other papers were shown or spoken of. Asked some one, supposed to be of the party, if there were any other papers, and was answered, No. Heard nothing of any power of attorney. was only shown to them. If there was any thing ever shown in a Court of Justice under heaven, it has been shown in this Court, and in this case, that this negro, if arrested at all, was arrested by the warrant, was held by the warrant, and would have been carried off by the warrant, and by the warrant alone. And therefore if the law, as we see it, shall be recognized by his Honor, these facts will rise to Heaven like adamantine walls around the devoted defendant, outside of which the Prosecution may clamor as idly as did the worshippers of Moloch around the tabernacle of the living God. Gentlemen of the Jury, whatever may be our private views and prejudices, I trust that by this time we have so far put them aside, that I may now look into your eyes with that confidence which springs always from the universal and instinctive love of Justice. But suppose contrary, as I conceive it, to all possible fact suppose that you should find that John was arrested and held by virtue of the power of attorney; then there are a number of points which naturally range under other parts of the subject, still to be discussed. John after his escape was at Wellington, on the 13th of September last, and that he sent to Kentucky for a witness to identify him; as he doubtless could not rely on his own knowledge of him; and now he comes up here to swear to the negro's identity! And Mitchell swears that during the seven days he was at Oberlin, prior to the 13th of September, he saw John but once, and that was when John chanced to be passing his window. Upon such testimony, up to the time of the capture, does the identity of the negro, upon the part of the Government rest. Bear in mind, too, that this Jennings had been at Oberlin before. And also that there existed at that time in that neighborhood, by reason of the overt acts of these and other parties, a feverish state of excitement with reference to certain colored persons being clandestinely seized and illegally carried off. Remember that Jennings had been one of the suspicious parties; a man who could by no means be hid in any one building in Oberlin; that Mitchell, who pretends to have been a very intimate companion of John's in Kentucky, had been in the place seven consecutive days; and then tell Has it been shown that the John Price, arrest me whether, if John had been a fugitive, his ined by Jennings or Lowe, is one and the same stincts would not have been awakened to alarm, with the John that escaped from John G. Bacon and had he been the John whilom a chattel of in January, 1856; and that the defendant Bush- this Bacon, he must necessarily have known nell knew he was not only an escaped slave, but Jennings and Mitchell, and would certainly that he had escaped from and belonged to this have fled while all the others were excited, he, particular Bacon? For it is not sufficient that who must have had the best means of knowledge, because John G. Bacon is a slaveholder, and has was not even alarmed. This goes far to show lost a John, he may send into Ohio a fishing he could not have been the slave of Bacon. process, and gather up with it any and every Remember too, that John escaped just at that fugitive John, and then whoever shall dare to in- period of life when youth is imperceptibly glidquire whether he has got his own or the John of ing into manhood; is gone two years and nine some one else, shall thereby make himself amen- months, living meanwhile altogether a different able to the penalties of this infamous Slave Act. life from that in which Mitchell knew him, acJohn escaped. Very singular, indeed, is n't quiring entirely different habits and manners, it? There is some fault either in the law or in and Mitchell after catching one glimpse of him the theology of the Peculiar Institution. There through good Mr. Wack's window I have no is no doubt but that the whole race was doomed doubt it was perfectly transparent at once to slavery in Ham; that is not an open question. pounces upon him. And then his owner comes But somehow it is very strange that the Deity up here and swears that when he left Kentucky who thus doomed this nation did not make it, in at the age of eighteen, he was five feet eight or its feelings and emotions, better adapted to its ten inches high, and would weigh 165 or 170 condition. Just think of John, careless of the pounds, and was copper colored. At Oberfiat of his Maker, and still more careless of the lin they arrest a John, who is positively sworn interests of his owner, and the good of this Con- by a number of unimpeachable witnesses, who federacy, lifting his huge, shapeless foot, with its had the best means of knowing, to have been enormous heel, and with the best part of the not over five feet five or six inches tall, weighmuscle of his leg on the wrong side, and driving ing from 135 to 140 pounds, and so black that it remorselessly through the priceless, precious he shone! Even Jennings swears the John porcelain of the Union. And all this because, they captured was black. Mr. Clay's laws of contrary to the Act made and provided, he was bleaching out seem to work the other way at smitten with the polar fever, to which persons Oberlin, whatever they do in Kentucky. of his class are so alarmingly subject. And they say the Kentucky boy and the Oberlin then there is the Ohio river, which certainly boy were both Johns, they don't come any ought to be indicted; for so chilly was its cool- | nearer. For the Kentucky boy was simply ness toward the interests of the glorious Union, that it actually froze over, and the negro walked with impunity over its icy bosom, toward Oberlin! Was this escaping John the John arrested? Jennings swears that the first time he saw + If John, while the Oberlin boy was John Price. In no solitary point do the descriptions agree. Slaves never have more than one name. They are all boys till they get to be uncles. Do we then, Gentlemen of the Jury, claim too much But the Government rests strongly on the sayings and doings of John himself, after capture, to establish his identity. These rest wholly on the statements of Jennings and Mitchell, his so-claimed and newly-found old friends, who enforced their assertions of kindly interest | with such mild persuasives as five-shooters, Arkansas tooth-picks, and substantial bracelets, as shown by their own testimony: Under such inspiring influences, and surrounded with such genial inducements to knowledge, it is said that he opened his mouth and spake wonderful things, of his own freewill, of course. And what did the inspired property say? Why, the same things that all such property, similarly situated, always says; or, more accurately, is reported as saying. That he is the identical person sought for, guilty of the escape charged, truly penitent, tired of freedom, of course, and only anxious once more to behold the kindest of masters and the most angelic of mistresses, and have himself snugly and comfortably sold into a rice swamp, beyond the reach of temptation! It is scarcely necessary to say, of all such yarns, that the circumstances of the speaker would utterly invalidate whatever he might say, while so situated, with any intelligent jury; and farther than that, his sayings, introduced here as they have been, have, of necessity, been ruled out by his Honor. Yet they are still pressed by the prosecution. But we are not left even to the plain inference, which would sweep away statements made in such durance. Mr. Mitchell himself tells us, that when they first met, John denied any acquaintance with him! Positively and pointedly denied it! Rather remarkable, wasn't it? If this were the very John with whom Mitchell had been so intimate for eighteen years previous to 1856, with whom he had worked side by side so many months, and whom he had thus marked so well that after a separation of two years and nine months, during which John had undergone many and remarkable changes of stature, color, weight, manner, and dress, he instantly recognized him in a strange place, with no one to call his attention to him, and this through one of the immaculate magnifying windows of the Russia House. John did not know Mitchell, and never saw him before. Oh, I know he knew him well when he arrived at Wellington. A duller than John would have profited by such suggestive lessons. Take an instance related by the graphic Mitchell. When he went up to John, in the wagon with Shakespeare, John had a knife in his hand, which Mitchell ordered him to give up. John declined. Mitchell's only reply was a significant movement of the right | hand towards his revolver; and the knife fell; and, in the language of the immortal and everobserving Shakespeare, in that serio-ludicrocomico-tragico farce of Measure for Measure, "the whites of John's eyes turned yellow! : It was under such teachings, and so illustrated, that John rode into Wellington, and is even brought to such proficiency that he is made to say, that at some time he even left Oberlin and started back to Kentucky, and got as far as Columbus, when he was arrested and reluctantly forced back to Oberlin! And this wretched stuff, so forced from the very pores of this wretched negro in his extremity, in the grasp, under the pistols and knives of this gang of armed ruffians, is gravely and solemnly urged here by the gentlemen who observe the argument as proof; and we are tauntingly called upon to disprove it, or it is conclusive upon us. And this is to be listened to in a so-called court of justice, by a jury of freemen, citizens of a free State, in the trial of a freeman for his liberty! The only pretence for any of John's sayings is, that they accompanied certain acts or things, and are given as part of the res gesta; not to prove any fact, but merely as constituting part of a fact, or thing. But that miserable fiction of John's attempt to return, was not even coupled with any act or fact. Whatever John may say in the custody of his captors, and under their catechizing, is in durance, and would not be proof, even against himself; and one can but shudder at the measureless infamy of offering it for a moment against a third person, who was not even constructively present, and to whom nobody pretends a whisper of it was ever conveyed. Follow this refreshing part of the case a little farther. At Wellington, after some hours of tuition, John was privately exhibited to a select few; among others Jake Wheeler, by his official position as Postmaster of Rochester, as well as from principle and instinct, enjoyed the high delectation of converse with him, since his regeneration, by the laying on of the hands of Marshal Lowe's posse. Jake very properly indulged in philosophical speculations, of a naturally moral tendency, for John's benefit, explaining to him that he had not received at the hands of his master training more severe than certain wholesome exercises, which even white parents occasionally find it necessary to put their children through; and it is to be regretted that Jake's own education, in this particular, was so sadly neglected. But these wonderful admissions of this negro boy in durance, prove even more yet. He is made, in Mr. Wheeler's own elegant phrase, to "on the whole, pretty much give him the impression that he was willin' to go back;" which another of the Government's witnesses explains by repeating what he said on the platform to the crowd, that "he supposed they had the papers for him, and he would have to go.” And sumption of every citizen would be that of thè law in favor of his freedom, and there would be nothing in his color or his arrival to charge the defendant with notice that he was a fugitive, or to put him upon inquiry concerning his status. And he who would charge such notice upon the defendant is bound to prove it. thereupon we are treated to a paroxystic parenthesis upon the attachment of slaves to their bonds. Why, Gentlemen of the Jury, if ever it should be my lot to have my loved ones wrenched from me, and carried by their captors to a distant land, and my government was not strong enough to wrest them back again, and I had not wealth enough to buy their freedom; It is in proof here, perhaps, that to one or and in after years some traveller should come two citizens of Oberlin, privately, John said from the far land where they were held in cap-that he was an escaped slave; but, that that tivity under the hard hand of a tyrant, and came to be a matter of general conversation should tell me that these my loved ones were and knowledge there is not a particle of proof. sullen and moody and rebellious, I'd thank God On the contrary, the proof is indubitablewith my full heart, for thus I'd know that my there is not a particle of proof that looks otherown blood still beat with its old pulse of free-wise- that on the early part of the afternoon dom in their quivering veins. But should he say that they seemed gay and careless and glad sang and made merry, and danced for their masters, I'd raise my hand to Him that liveth, and swear they were none of mine! But what did the negro say upon the platform? He was sent out, after due training, to say certain things. What were they, and did he say them. The first query is satisfied by the answer to the next. What he did say, if he said any thing which Jennings and Mitchell are loth to admit. was, that "they had the papers for him, and he supposed he would have to go back." In the presence of his captors and Wheeler, he almost said what they wanted him to, but upon the balcony, he could n't do even as well as that. I know that Mr. Wack testifies that "he thinks John was just-a-going to say he wanted to go back," when he got "skeered" and fled in, but I question whether even the Government is quite ready to claim to you, Gentlemen, that such supposition on the part of Mr. Wack is conclusive evidence of John's voluntary state of mind! of the day of the alleged rescue, on the hasty J And now, what were the circumstances collateral with and immediately prior to the arrest And now, on the whole proof, including of John, as bearing on this question of knowlJohn's statements upon this point of his identity, edge? I shall say little here of the means by I claim the balance is with us. A copper-colored which information was conveyed from Oberlin fled, an ebony black was captured; a youth to Kentucky, of the residence at the former of eighteen, weighing 165 or 175 pounds fled, place of certain supposed fugitive slaves; it is a man weighing 135 or 140 was taken; a boy of an unpleasant subject. But I cannot conceive the grenadier height of five feet eight or ten inches how any individual, born and grown escaped, and one dwarfed to five feet five ar-nothing of "bringing up"-here at the North, rested! Can he be the same? But there remain other and very important points to be noticed, waiving, for the purpose of considering them, even the question of John's identity. If he was a fugitive slave, was this fact known, generally known? So generally known at Oberlin that this defendant can be charged with notice of it? If not thus generally known, it must appear either that it was brought to his notice personally, or to the notice of a crowd acting with unanimity and in concert, and of which he was a member. It is not in proof at what time John arrived at Oberlin. The presumption in Ohio would be, not that he was a slave, but that he was a free man, so that whether he had resided any considerable time there or not, the legal pre to say should have it in his heart to steal into that he might betray the confidence of a fugitive, be prejudiced as we may of his color and condition. And as to the condition of this crushed and smitten people, we should never forget that they are here always against their own will. The tribes of Africa never migrate. So many of them as are among us WE stole, and ironed, and forced here, and for this we at the North are as responsible as our brethren at the South. Our fathers were one with their fathers in this sad, sad work. Neither the men of to-day who hold slaves in Kentucky, nor we of Ohio, who to-day lift our voices against the institution, founded it, though we are all responsible for its continuance. There may be a difference in the responsibility of sanctioning and perpetuating it, and if there be, no words can express |