G. Bacon as aforesaid, and the said Jacob K. Lowe, then and there lawfully assisting the said Anderson Jennings as aforesaid; he, the said Simeon Bushnell, then and there, well knowing that the said negro slave called John, was then and there a fugitive person, held to service and labor as aforesaid, and pursued and reclaimed, seized and arrested, and held in custody as aforesaid; to the great damage of the said John G. Bacon."

The law on which this indictment is predicated is contained in the 6th and 7th sections of the Act of Congress of September 18, 1850. In the first clause of section 6 it is provided, that, "when a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized by power of attorney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which the same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the Courts, Judges, or Com

trict, or County, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, when the same can be done without process, and by taking, or causing such person to be taken, forthwith before such Court, Judge, or Commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner,” etc.

wit, on the first day of October in the year of our Lord one thousand eight hundred and fiftyeight, one Anderson Jennings, the agent and attorney of the said John G. Bacon, duly authorized for that purpose, by power of attorney, in writing, executed by the said John G. Bacon, to wit, on the 4th day of September, A. D. 1858, and acknowledged by him on said day, before Robert A. Cochran, Clerk of the County Court of the County of Mason, in said State of Kentucky, and on said day, certified by said Robert A. Cochran, Clerk as aforesaid, under the seal of said Mason County Court, the said Robert A. Cochran then being a legal officer, and the said Mason County Court then being a legal Court in the said State of Kentucky, in which said State said power of attorney was executed, did pursue and reclaim the said negro slave, called John, into, and in the said State of Ohio, and did, to wit, on the said first day of October, in the year last aforesaid, in said Northern District of Ohio, and within the jurisdiction of this Court, pursue and reclaim the said negro slave, called John, he then and there being a fugitive person as aforesaid, and still held to service and labor as aforesaid, by then and there, on the day and year last aforesaid at the District aforesaid, and within the juris-missioners aforesaid of the proper Circuit, Disdiction of this Court, seizing and arresting him as a fugitive person from service and labor, from the said State of Kentucky, as aforesaid; and that the said negro slave called John, was then and there, to wit, on the day and year last aforesaid, in the said State of Ohio, at the District aforesaid, and within the jurisdiction of this Court, lawfully, pursuant to the authority of the statute of the United States, given and declared in such case made and provided, arrested in the custody and under the control of the said Anderson Jennings, as agent and attorney as aforesaid, of the said John G. Bacon, to whom the service and labor as aforesaid of the said negro slave called John, were then and still due as aforesaid, together with one Jacob K. Lowe, then and there, lawfully assisting him, the said Anderson Jennings, in the aforesaid arrest, custody, and control of the said negro slave called John. And the Jurors aforesaid do farther present and find that Simeon Bushnell, late of the District aforesaid, together with divers, to wit, two hundred other persons, to the Jurors aforesaid unknown heretofore, to wit, on the said first day of October, in the year of our Lord one thousand eight hundred and fiftyeight 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.

Section 7 declares, "that any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared" (shall be subject to fine and imprisonment, etc.)."

To effect a conviction of the defendant, the material allegations in the indictment must be established in proof, and the burden of proof rests on the Government.

That slavery or involuntary servitude exists in Kentucky, under the sanction of law, is a matter of which the Federal Courts take judicial notice. The reciprocal relations between the National Government and the several States comprising the United States, are not foreign, but domestic. Hence the Courts of the United States take judicial notice of all the public laws of the respective States, when they are called upon to consider and apply them. It is not a question for the Jury to determine, from the evidence, whether or not slavery lawfully exists in Kentucky. That is an inquiry which belongs solely to the Court; and for the purposes of this trial, you will regard slavery as a municipal regulation, lawfully established in that State.

Was the negro John a slave, owing service to John G. Bacon in Kentucky? This is the first question of fact for your determination from the evidence.

riage. But it is competent and sufficient evidence of the heirship, that B. treated and recognized A. as his son.

Upon the principles of the common law, then, the testimony of Bacon, Mitchell, and Jennings is competent, and if uncontradicted, may be deemed sufficient to establish the fact, that the negro John was held to service as the slave of John G. Bacon, under the laws of Kentucky. That this slave fled from his master and escaped from Kentucky into the State of Ohio, is an alleged fact, about which the testimony leaves but little room for controversy. Neither can it be seriously controverted, that Bacon executed to Jennings a valid power of attorney, duly acknowledged and certified, for the recaption of the slave.

The next question to be determined by the evidence is, did Jennings hold this fugitive by virtue of the power of attorney at the time of the rescue?

The statute provides that the owner or his agent authorized by power of attorney, "may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the Courts, Judges, or Commissioners aforesaid, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, when the same can be done without process, and by taking or causing such person to be taken forthwith before such Court, Judge, or Commissioner," etc., etc.

On a question of this kind, the right of the alleged owner in his slave, is to be established by the same rules of evidence as in other contests about the right of property. Ordinarily, the fact of possession and notorious claim of ownership, in personal property, is sufficient to establish the prima facie right of ownership. It was declared by the Court, in the case of Miller v. Dunnan, that the mere holding a person in involuntary servitude, and claiming ownership, is not sufficient primâ facie evidence of right to overcome the presumption arising from the marks of European descent. But that dark complexion, woolly head, and flat nose, with possession and claim of ownership, do afford primâ facie evidence of the slavery and owner-ney. Both modes of capture have the same ship charged.

Here the prosecution claims to have shown, by the uncontradicted testimony of Bacon, Mitchell, and Jennings, that the negro John was held and treated as a slave by John G. Bacon and his father; that the mother of this negro was a slave all her lifetime, and bought and sold as such.

Further than this, the pedigree of the negro and the status of his ancestors were not attempted to be traced. Nor was it necessary. For, were it traced back to the maternal ancestor of 1785, no better evidence would or could be furnished. It then could only be proved that the ancestor was a slave, by showing that she had marks of African descent, and was bought and sold as a slave, and held as such. This is precisely the evidence and the only evidence necessary to show the slavery and service which this negro owed to his master.

It is true, the language of the Act is in the alternative. The fugitive may be seized and arrested upon the warrant, or he may be seized and arrested by virtue of the power of attor

object, to wit, to bring the fugitive before the Court or Commissioner. The person making the arrest is clothed with the same power and authority in the one case as in the other. He may at the same time provide the means of resorting to either or both modes of capture. Yet, when it is alleged in the indictment that the one or the other was adopted, the allegation being material, the proof must support the charge.

You will, therefore, determine from the evidence, whether or not Jennings held the negro John by virtue of the power of attorney from Bacon, at the time the rescue was made. If you find in the affirmative on this proposition, then the inquiry is, was the defendant implicated in the rescue?

If the persons who constituted the assemblage at Wellington on the 13th of September, 1858, had come together for the purpose, or when 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

And yet, if these facts are as claimed by the Government prosecutor, the defendant is not guilty of the offence with which he stands charged in the indictment, unless it is proved 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 circumstances as to show that he might have had such knowledge by exercising ordinary prudence.

was not a deputy clerk of Mason County Court.
If he was, his official acts were the acts of Mr.
Cochran who it is admitted, was the clerk of
that Court. "Qui facit per alium facit per se,”
is a maxim that obtains everywhere.
4th Request-Was complied with.

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 time of such escape and of said alleged rescue; but that, if the testimony satisfies them that said John G. Bacon derived his title to said John by descent from his father, who died leaving five other children, all of whom are still living, the presumption is, in the absence of testimony showing that a division had taken place of the property of their father, that John was, at the time of his escape, and at the time of the alleged rescue, the joint property of all the children; and, therefore, that the averment of ownership is unproved, and the prosecution must fail.

5th Request Judge Willson refused to charge as requested.

6th and 7th Requests Judge Willson refused to give special instructions because the points were covered by the regular charge.

8th Request Refused. Held that the defendant was bound to make inquiry as to whether John was legally held or not, Court adjourned till 2 o'clock.

The record of the afternoon's occurrences is

7th. That before the defendant can be held liable for the acts and declarations of those constituting the assemblage of persons, who are claimed to have been instrumental in the rescue 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.

8th. That if the defendant, in his connection with the rescue of John, was honestly of the opinion that John had been illegally seized upon, and was being carried away in violation of law; and the claim of right so to seize and carry him away, were given, by those who had him in custody, to be by virtue of a warrant in the hands of said Lowe, then the defendant cannot be convicted of the crime charged in the indict

ment.

The Court convened in the afternoon at 2 o'clock, and a verdict having been agreed upon by the Jury, they came in and took their seats. The prisoner being present, the question was put by the Court

"Gentlemen of the Jury, have you agreed upon a verdict?"

"We have, your Honor."

"What is your verdict, Mr. Foreman ?” "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.

marked that they were ready in none of the other cases except that of Prof. Peck. The District-Attorney insisting upon that of Mr. Langston, Mr. Spalding thought they might be ready with that case by the time the new Jury was ready to proceed.

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 used, the fugitive cannot be considered as held by process at all, and although the slave might have been taken in the first instance upon a void warrant, it was nevertheless competent for the attorney, by virtue of his power, to take and control him at any time afterwards, and in Ohio no presumption exists that a man (black or white) is properly restrained of his freedom, except on clear proof of legal authority for that purpose.

3d Request - The power of attorney in order to be valid, must, unquestionably, be shown to be acknowledged as alleged in the indictment. It is a question of fact for the jury to deter

Judge WILLSON said the present Jury was one struck and selected for the term, and it was proper that they should try all the cases.

Mr. BACKUS remarked that he was astonished to hear his Honor intimate that this Jury, who have sat through and upon this case heard all the testimony, and who have now in the presence of the Court rendered a verdict, in which their minds are made up and fixed