xt7stq5r8c4n https://exploreuk.uky.edu/dips/xt7stq5r8c4n/data/mets.xml Johnston, William, 1804-1892. 1846  books b92326oh32009 English N/A : N/A Contact the Special Collections Research Center for information regarding rights and use of this collection. Fugitive slave law of 1793. The State of Ohio vs. Forbes and Armitage : arrested upon the requisition of the government of Ohio, on charge of kidnapping Jerry Phinney, and tried before the Franklin Circuit Court of Kentucky, April 10, 1846. text The State of Ohio vs. Forbes and Armitage : arrested upon the requisition of the government of Ohio, on charge of kidnapping Jerry Phinney, and tried before the Franklin Circuit Court of Kentucky, April 10, 1846. 1846 2009 true xt7stq5r8c4n section xt7stq5r8c4n 
Franklin

Circuit Court, Kentucky, April lOlk, 1 846, before the
HON. M A S O N B R O W N , Circuit Judge.

THE

S T A T E OF OHIO V. F ORBES & A RMITAGE. JUSTICE

SLAVERY   KIDNAPPING   FUGITIVES F R O M

A

w r i t w as produced

i n o pen C o u r t , issued by O h i o , had demanded

WILLIAM of

O W S L E Y , G o v e r n o r of K e n t u c k y , setting forth that M O R D E C A I B A R T L E Y , G o v e r n o r of A. C. Forbes the persons from and J a c o b A r m i t a g e , fugitives justice,

c harged by affidavit, w i t h h a v i n g k i d n a p p e d J e r r y P h i n n e y , a f ree c olored m a n , resident of O h i o , and that the G o v e r n o r o f O h i o had appointed W i l l i a m J ohnston his agent, to receive s aid F orbes and A r m i t a g e , and b r i n g them b a c k to be tried u nder the laws of O h i o , upon said charge of k i d n a p p i n g . The w r i t o f G o v e r n o r O w s l e y commanded the sheriff to arrest said F orbes and A r m i t a g e , and take them b efore a C i r c u i t J u d g e , to b e examined and dealt w i t h a ccording to the provisions of an A c t , e ntitled " A n A c t to amend the A c t reducing into one the s everal justice: " a cts authorizing the apprehending of fugitives A p p r o v e d J a n . 2 7 , 1820. from

T h e w r i t b ore t he sheriff's return, that it had b een d uly e xecuted on said Forbes and A r m i t a g e , who were then present i n C o u r t , i n custody of the sheriff. Mr. William J ohnston appeared on behalf the State of O h i o , a nd M r . Charles S. M o r c h c a d on behalf of Forbes and Armitage. T h e Court asked the attorney for O h i o , i f he desired e nforce t he appearance of any witnesses required. to p roduce a ny testimony, tendering the p ower o f the C o u r t to

  
M r . M o r e h e a d read the statute of i dentity.

1820,

and

waived all

t echnicality t ouching the points of indictment, affidavits a n d M r . J ohnston would take no technical advantages; but he d esired a fair investigation w h i c h should i n g ood f aith r espect t he rights and dignity of O h i o and K e n t u c k y , and the result o f w h i c h , be it what it might, should satisfy the authorities a n d t he p eople, a nd allay excitement on both sides of the water. M r . M o r e h e a d presented the issues, that J e r r y was a slave a nd t hat Forbes Kentucky. A f t e r t he introduction of the testimony, w h i c h is sufficiently s tated i n the opinion of the J u d g e , M r . M o r e h e a d o pened t he argument, stating his points f oollows: 1. U n d e r the peculiar w r i t issued by the Governor of n ow K e n t u c k y , a nd under w h i c h Forbes a n d A r m i t a g e w ere as and A r m i t a g e had the approbation
5

of his

o wners, i n t a k i n g h i m i n O h i o , and d e l i v e r i n g h i m to them i n

b efore t he C o u r t , the only enquiries w h i c h could be made, w e r e , i s J e r r y a slave? and had Forbes and A r m i t a g e the authority o f the owner, or her approbation for his recapture? M r . J ohnston replied, traversing the grounds of M r . M o r e head, and urging the following Armitage: 1. T h e K e n t u c k y statute of 1820, is at variance 1 793, and void. 2 . I f the statute of 1820 be void, the C o u r t has j u r i s d i c t i o n o nly of the question of identity, under the statute of 1815. I f t he statute of 1820 be v a l i d , a nd the Court has j u r i s d i c t i o n , t hen t hree questions of fact are i n v o l v e d . 1. Is J e r r y a slave, and the property of any o ne? 2 . W h o is his o wner? 3. D i d F o r b e s and A r m i t a g e act as the agents, or w i t h the a pprobation of the o wner? T h e s econd p oint is c onceded, for i f J e r r y be a slave, M r s . Long r epresenting i n her own right, and as administratrix ot w i t h the of c onstitution of the U n i t e d States, and the l a w of Congress positions i n support of the d emand of the G o v e r n o r of O h i o , for the fugitives, F o r b e s a n d

  
h er d eceased h usband, 26-27ths The

of J e r r y , f or the purposes of

t his c ase, may be considered the owner. t hird p oint is c onceded a lso, as to F o r b e s , but insisted o n as to A r m i t a g e , b ecause t here is no p r o o f of the express a pprobation of the owner as to h i m . T h e m a i n question is upon the first point. a t the time Forbes and A r m i t a g e a i d e d Columbus? 1. S l a v e r y is contrary to the l a w of nature, contrary to the l a w o f nations, and exists only by f orce o f the m u n i c i p a l l a w of t he l a n d . 2 . S l a v e r y is strictly l o c a l , and confined w i t h i n t he t erritorial l imits o f the State where it is sanctioned, and cannot follow the f ugitive b e y o n d those l imits, e xcept b y positive l a w , b i n d i n g on b oth sides of the l ine. 3 . T h e only l a w v a r y i n g these great principles of n atural a nd i n t e r n a t i o n a l l a w , is that to be found, 1st i n the ordinance of 1 787 for the government of the N o r t h W e s t e r n T e r r i t o r y ; 2 d , i n t he-Constitution o f the U n i t e d States; and 3 d , i n the L a w of C ongress of 1793, w h i c h l a t t e r cannot be so construed, as to e xtinguish t he guaranty of l i b e r t y , contained i n the ordinance o f 1787, or to extend the rights guaranteed to the owners f ugitive s laves b y 4. The clauses the Constitution of the U n i t e d States. of the ordinance of 1787, of the C o n s t i 1793, of W a s J e r r y a s lave i n seizing h i m at

tution o f the U n i t e d States and the l a w of Congress of

a u t h o r i z i n g f ugitives from labor to be pursued into the N o r t h W e s t e r n T e r r i t o r y , being contrary to the l a w of nature, cont r a r y t o the laws of nations, a n d restrictive of h u m a n l i b e r t y , m ust be s t r i c t l y construed. one T h i s implies a voluntary act is c a r r i e d into the N o r t h com5 . S t r i c t l y c onstrued, these clauses can extend to but c a s e     t h a t o f an escaping slave. o ther than by his o w n will he

o f the slave c o n t r a r y to the w i l l o f the master, and i f by any Western f oreign T e r r i t o r y , the State. b ecomes f ree but for a moment, he can act, relation of S l a v e r y c eases as

p l e t e l y , as i f he had been c a r r i e d into F r a n c e , or any other 6. I f the slave b ecause t he

n ever a g a i n be reduced to s l a v e r y ; not even by his o w n r i g h t of freedom is unalienable.

  
7 . It matters not that the slave was c a r r i e d beyond the line b y a bailee to whom he was hired ; i f he is c a r r i e d over d ominion over h i m , he b ecomes ipso facto f ree, and the er has his right of action against the bailee for the h is s ervices. The law governing chattels d oes n ot t o property i n h u m a n beings. i n m an he reserved to n atural a nd in t he relation of a slave, even b y a person h a v i n g a temporary ownof apply loss

G o d g ave m a n dominion over, T h e property i n animals is conven-

a nd p roperty i n the beasts o f the field, & c , but the property himself. b i n d i n g every where ; T h a t i n man is

tional, m u n i c i p a l , l o c a l , and to be kept w i t h i n t he l i t e r a l m eani n g o f the w r i t t e n l a w . I n a nswer to the positions of M r . J o h n s t o n , M r . M o r e h e a d c ontinued : 1. T h a t the question of the constitutionality of the K e n t u c k y a ct of 1820, could not arise i n this proceeding. nary c ases, the question is perhaps exclusively an o ne, e xcept as to the single i n q u i r y of identity. In ordiexecutive

I n this c ase

t he G o v e r n o r of K e n t u c k y had issued his w r i t i n o bedience t o t he requisition of the G o v e r n o r of O h i o , i n conformity w i t h t he a ct of 1820 ; and this C o u r t had n o t h i n g to do but to m a k e t he inquiries directed b y the w rit. v ariance w i t h I f the act of 1820 be at thereof, the Governor t he Constitution of the U n i t e d States, and the

l a w o f Congress passed i n pursuance

m ight h ave disregarded i t , and issued his w r i t a s i n o r d i n a r y c ases, and this C o u r t , i t may be c onceded, w o u l d be compelled t o o bey t he E x e c u t i v e mandate upon p r o o f of i d e n t i t y a l o n e .     B u t t here is no E x e c u t i v e mandate to deliver these persons to t he agent of the State of O h i o , unless it is ascertained that J e r r y i s a free m a n , or that they acted o r approbation of the owner. T h e alleged fugitives The constitutionality of cannot be delivered up under this w r i t , the act of 1820, cannot therefore w ithout t he p r e l i m i n a r y inquiries directed by the w r i t i tself. a rise, a n d need not be discussed. without the authority

2 . Is J e r r y a s lave ? 1. S l a v e r y is what the m u n i c i p a l law has made i t , the rights g r o w i n g out of w h i c h extra-territorially arc guaranteed by C onstitution o f the U n i t e d States. W h e t h e r i n conformity the to

  
I

n atural o r to divine law is no question l aws securing those rights.

here, and ought not to

a ffect i n a n y d egree t he f air, l i b e r a l a nd just exposition of the 2 . T h e ordinance of 1787 for the government of the northwestern t e r r i t o r y , it is true, declares " that there s hall be neither slavery nor i n v o l u n t a r y servitude i n the said t e r r i t o r y . " i n t he c ase o f Rankin v. Lydia, But 2 A. M. Marshall, 4 G7, d e c i -

ded at the f ail t erm of 1820, of the C o u r t of A p p e a l s , it is said, t hat " w h e n the ordinance declares that slavery s hall n ot exist t here, it evidently means a m o n g i s n ot affected by the provisions the inhabitants and settlers, T h e i r c ase against of the ordinance ; a nd n ot among the travellers or sojourners t here. t h e m no provision exists." T h e same p r i n c i p l e is recognized and enforced i n the c ase o f Graham v. Strader, fyc, 5 B. Monroe, 1 53. In that c ase t he q uestion is d i r e c t l y decided, that the owner o f a skive, r esid i n g i n K e n t u c k y , d oes n ot forfeit his slave b y t a k i n g h i m to O h i o , o r p e r m i t t i n g another to do so, w h e r e the o bject o f the v isit i s temporary, or i n other words, where the party t a k i n g h i m t here was a mere sojourner, and not d o m i c i l e d . 3 . T h e slave J e r r y b e i n g taken to O h i o by a mere bailee, w ithout t he a p p r o b a t i o n and against the consent of his o w n e r , a n d t hat bailee not b e i n g d o m i c i l e d i n O h i o , a n d r e t u r n i n g t he slave to his owner i n K e n t u c k y , the ordinance of ordinance. 1787 c a n have no e ffect o n his condition upon the most t e c h n i c a l a nd s trict construction of the 4 . J e r r y n ot b e i n g entitled to his freedom, i n c onsequence o f b e i n g t a k e n to O h i o by a bailee, the manner of his afterwards l e a v i n g his o w n e r , made h i m " an escaping slave? i n t he true and p r o p e r m e a n i n g of the terms. 5 . A f t e r the r e t u r n of J e r r y b y the bailee to his o w n e r i n K e n t u c k y , s he could have m a i n t a i n e d no action against h i m , o n the ground that he had b ecome f ree, as settled by the fore c ited c ase o f Graham v. Strader. 6 . T h e ownership of the slave b e i n g a d m i t t e d , and the power of attorney to F o r b e s f ully p r o v e n , the l a w w i l l i m p l y that a uthority w as given to h i m to m a k e use of a l l necessary t o accomplish the o bject i n v i e w , and consequently tage acted w i t h t he approbation of the owner. means that A r m i be-

  
7 . T h e authority of the appellate C o u r t is b i n d i n g on this C o u r t , a nd it is useless to discuss the c orrectness o f m ade e lsewhere in conflict t h e r e w i t h . O PINION o r T H E C O U R T     A l e x a n d e r C . F o r b e s , and A r m i t a g e h a y i n g b een a rrested by the Sheriff" of w ere C o u n t y , under a w a r r a n t from the E x e c u t i v e , b efore m e in pursuance of the mandate t hereof. a fter r e c i t i n g that they had b een d emanded Jacob b rought Governor decisions

Franklin

T h e warrant

by the

o f O h i o , as p ersons c harged by affidavit b efore A l e x a n d e r P a t ton, a Justice of the P e a c e , of F r a n k l i n C o u n t y , O h i o , w i t h s eizing upon and by violence t o transport out of the State s aid to be a f ree m a n of O h i o , k e e p i n g i n restraint, w i t h intent of O h i o , one Jeremiah Finney, but c l a i m e d as a slave of K e n -

l u c k y , d irected the said Sheriff' to <   apprehend a nd arrest the s aid A l e x a n d e r C . Forbes, and J a c o b A r m i t a g e , and upon their a pprehension, to b r i n g them b efore s ome C i r c u i t J u d g e of this C o m m o n w e a l t h , that the said C i r c u i t J u d g e may p roceed p roper and legal testimony, to inquire into the matter, so a nd A r m i t a g e , and their guilt or i nnocence i n the a ccording to the statute of K e n t u c k y , 27th p ersons m entioned in this my w a r r a n t , be by far

as s hall b e necessary to ascertain the i d e n t i t y of the said F o r b e s premises, the offenJanuary, A . D.

1 8 2 0 , i n relation to fugitives from justice ; and i f they, identified as

ders against the laws of O h i o , and be found not entitled to the b enefit of the provisions of the said act of 1820, that the said J u d g e may order them to be delivered up to W i l l i a m J o h n s t o n , E s q . , w ho has b een d uly authorized, by the G o v e r n o r of the C. S tate of O h i o , to r eceive a nd c onvey t he said A l e x a n d e r w i t h a ccording to l a w , " & c . , & c . T h e facts proved upon the i n q u i r y , w ere s ubstantially t hese : J e r r y F i n n e y was born a slave i n the h ouse o f I l e z e k i a h B r o w n , o f a colored p roperty woman named Rose. T h i s woman and husJ e r r y w ere h eld by B r o w n , not in his o w n r i g h t , but as the of his wife ; R ose h a v i n g b elonged to a former band by the name of L o n g , by w h o m , previous to her m a r r i age w i t h B r o w n , she had eight or nine c h i l d r e n , a mongst o thers, T h o m a s L o n g . In the last w i l l a nd testament of Hczc-

F orbes, and Jacob A r m i t a g e , to the State of O h i o , to be dealt

  
k i a l i B r o w n , he property, real J e r r y , t o be h e l d

loaned to his wife and personal, amongst

a n u m b e r o f articles other things, the

of boy

d u r i n g h e r n a t u r a l life, and after h e r d e a t h A f t e r the death o f B r o w n , his e xecutor?, a paper re-

t o go to her heirs.

H e n r y B r o w n and J o h n D . R i c h a r d s o n , executed o n the part o f B r o w n ' s estate to the boy h usband's estate. b y her former Thomas L o n g , one

linquishing t o M r s . B r o w n , who survived her husband, a l l c l a i m J e r r y , and d e c l a r i n g of M r s . Brown's s ons t hat t hey k n e w h i m to be her p r o p e r t y , and p a r t of h e r former h u s b a n d , purchased i n his lifetime the interests e x c e p t t hree, and d i e d , l e a v i n g B a t h right the r e m a i n i n g interests o f the othshare, w h i c h is outstanding. One o f her c h i l d r e n is s till a and m ade d istribution o f a l l her

o f a l l the other heirs p urchased i n h e r o w n Mrs.

sheba L o n g his w i d o w , who administered upon his estate, and er heirs, e x c e p t t he t h i r d o f one L o n g has settled u p , h usband's estate minor. S i x t e e n or seventeen years ago, M r s . B r o w n , after h e r husthat he was g o i n g to w o r k not take h i m out him husband's d e a t h , h i r e d the boy J e r r y to a g a m b l e r b y the name o f A l l g a i e r , who represented o n a farm i n W o o d f o r d on State. A l l g a i e r t ook J e r r y to the State o f O h i o , and kept h i m i n h is s ervices there for six months ; w h e n l e a r n i n g the fact, M i s . L o n g , w h o held the r e m a i n d e r i n J e r r y , wrote A l l g a i e r a letter, d i r e c t e d to h i m at C i n c i n n a t i , r e q u i r i n g h i m to r e t u r n J e r comry i m m e d i a t e l y , a n d t h r e a t e n i n g to sue h i m i f he d i d not B r o w n , w ho was s till l i v i n g , n ow d eceased. county, K e n t u c k y     w i t h a stipulation of the except J e r r y .

A l l g a i e r ' s p a r t , that he should

ply ; u pon w h i c h A l l g a i e r returned h i m to his mistress, M r s . A f ew w eeks a f t e r , residence of a Forbes runaway    'nce Long times, A J e r r y a sked permission to r e t u r n to his last p l a c e o f and and n ever returned till he c a m e b ack i n custody advertised h i m as

f or his clothes, w h i c h his mistress g ave h i m , and he w e n t a w a y Armitage. Mrs. Brown

s lave, and o ffered a r e w a r d for his apprehension ; and t hen, k n o w i n g that he was i n the t o different persons, S t a t e of O h i o , M       h as g i v e n three different p owers o f a t t o r n e y , at different s hort time ago, she, M r s . L o n g , executed

to b r i n g h i m b a c k , but p.M'ays f a i l e d .

regularly, according

  
10 t o l a w , a p ower o f A t t o r n e y to F o r b e s , whom she at the time h ad n ever seen, to appehend and return J e r r y to her, at F r a n k fort, K e n t u c k y . It is admitted that the prisoner at the bar is w ith F o r b e s . bearing with repret he same Forbes, and (hat the prisoner A r m i t a g e acted i n the m atter of J e r r y ' s seizure, i n conjunction A l l t he questions of law and fact, i n any respect

u pen the foregoing state of the c ase, h ave b een a rgued g reat zeal and distinguished a b i l i t y , b y the gentleman

senting t he State of O h i o , and the counsel retained by the p risoners, and I regret that the necessity for an i m m e d i a t e d e c i sion, a nd the other duties of the C o u r t , now i n session, pi vent m e from presenting and n o t i c i n g i n detail the various positions r espectively t a k e n , to illustrate and sustain the points so f ully a nd a bly debated by them. I t is urged i n substance by the counsel for the State of O h i o : 1. T h a t the statute of 1820 of K e n t u c k y , is at v a r i a n c e w i t h t he Constitution of the U n i t e d States, and the l a w of Congress o f 1793, and v o i d . 2 . T h a t i f the statute of 1820 be v o i d , the C o u r t has j u r i s diction o nly of the question of i d e n t i t y , under the statute of 1815. 3 . T h a t if the statute of 1820 be v a l i d , a nd the C o u r t has j u r i s d i c t i o n , t hen it is insisted that i n v i e w of the facts as proved, J e r r y is by the p a r a m o u n t l a w of the land free, and cannot b e regarded as an escaping slave. 4 . T h a t i f J e r r y be a slave, and the p ower o f attorney v a l i d , f or the protection of F o r b e s , s till i s it not so as to A r m i t a g e , as there is no proof of the express a pprobation of the o w n e r to h i m . T h e c onverse o f these c ounsel for the prisoners. quiry. propositions is insisted upon by the H e also insists that the constitutionas

ality o f the act of 1820 is not necessarily involved i n this i n T h a t the executive is the s ole j u d g e o f the terms a n d will c onditions upon w h i c h he w i l l o rder the surrender of a fugitive, a nd that he alone is c ompetent t o d ecide w h e t h e r he orw be controlled by the act of 1 82:).

T h e N e c o n d section of the fourth article of the- constitution o f the U n X d S t a t e s , and the act of Congress of 1793, respecting f or f ugitives ft^n justice, so far as they prescribe the m ode excluthe arrest a n d "tkdivery of fugitives, are addressed

  
11 s i v e l y to the E x e c u t i v e . T h e Constitution enjoins It is made the duty,

a nd t he act of 1793 prescribes the m ode a nd conditions under w h i c h t hat duty s hall b e performed. i n t erms, an E x e c u t i v e act. strict!)', and T h e E x e c u t i v e alone is required Indeed i n the c ase

t o order the arrest and direct the d e l i v e r y .

o f the State of South C a r o l i n a e x parte W i l l a r d a nd w i f e , ads. t he State of N e w Y o r k , it was held that the d e m a n d i n g , app r e h e n d i n g , and c o n v e y i n g a w a y fugitives from justice under t he provisions of the Constitution, w e r e m inisterial a cts, w h o l l y e ntrusted to the management and discretion of the E x e c u t i v e , and w ere so e x c l u s i v e l y of E x e c u t i v e c o g n i z a n c e , that they corpus act o f S o u t h w ere e xcepted o ut of the State habeas U n i t e d S tates. A n d when

C a r o l i n a , b y the operation o f the C o n s t i t u t i o n and laws of the certain, persons were brought up b efore a J u d g e of that S t a t e , b y habeas corpus, who were u n der arrest b y order of the E x e c u t i v e of South C a r o l i n a , f or the p urpose of b e i n g delivered " t o a n . agent o f the E x e c u t i v e of N e w Y o r k , who had demanded them as fugitive's from justice i n t hat state, their discharge was moved on various grounds ; b ut the J u d g e decided that he had no p o w e r o r authority to d ischarge the prisoners, or i n a n y w a y w h a t e v e r to interfere w i t h t he mandate of the E x e c u t i v e . See Sergeant's Constitutional Law, page 3 9 5 . T h e act of K e n t u c k y , approved 27th J a n u a r y , 1820, i n rerestrictions upon the i t must rest lation t o fugitives from j u s t i c e , imposes n ot found i n the act of Congress

d e l i v e r y o f fugitives by the E x e c u t i v e , w h i c h restrictions are o f 1793, a n d w i t h t he E x e c u t i v e to d ecide w h e t h e r he w i l l r ecognize t hose r estrictions as b i n d i n g on h i m , or w h e t h e r , d i s r e g a r d i n g the s aid a ct, he w i l l d irect an u n c o n d i t i o n a l d e l i v e r y o f the p risoners. T h e E x e c u t i v e has directed the prisoners to be d e l i v e r e d up o n condition that they are not w i t h i n t he r cstrirtion o f the act o f 1820. p rescribed S h o u l d I , by my m a n d a t e , d i r e c t t h e m to be d e l i v of O h i o upon any other terms than t hose but w o u l d be e x e r c i s i n g the same i n d i r e c t by the E x e c u t i v e , I w o u l d not only be e x e r c i s i n g ered to the agent E x e c u t i v e p ower,

h ostility to the w i l l o f the E x e c u t i v e . A s a n c i l l a r y t o the action o f the E x e c u t i v e , i t o n l y remains

  
12 t o inquire whether a s tate o f c ase e xists, under w h i c h a d eliver)' i s d irected. T h e a ct of 1 8 2 0 c ontains t he f ollowing provisions : S E C . 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, T h a t i n a l l cases w here o r their o w n e r , United a n y n egro s lave o r s laves, have, o r may h ereafter r un a w a y from h is, h e r o r o wners, a nd t ake protection i n any of the o r o wners o f s uch slave o r S tates, a n d the o w n e r

s laves, b y t hemselves, their agent o r any o ther person w i t h t heir a pprobation, s hall h ave removed, United o r s hall h ereafter r emove a n y s uch slave o r s laves from a ny o ther State w i t h i n t he S tates into this C o m m o n w e a l t h , a n d h e , she, or t hey h ave been, o r s hall h ereafter b e i n d i c t e d f or the s ame, i n a n y o ne ofc-fche_lJnited Slates, a nd the G o v e r n o r o f s aid State s hall d emand o f the G o v e r n o r o f t his State t he p erson o r p ersons so i n d i c t e d , o r w ho^may hereafter b e i n d i c t e d , t o be d elivered t o h i m ' a g r e e a b l y t o t h e ^ C a n s t i t u t i o u o f the U n i t e d States a nd t his S tate, i t s hall b e the d uty o f the G o v e r n o r o f t his C o m m o n w e a l t h , upon s ucli r equisition being made a c c o r d i n g t o l a w , t o issue h is w arrant t o the S h e r i f f o f the c ounty where such fugis upposed fugitive m ay r eside, i f he has a k n o w n place o f r esidence, r equiring h i m to t ake into custody such supposed livc o r f ugitives from j u s t i c e , as are n a m e d i n s uch w a r r a n t

a nd i ndictment, a nd b r i n g h i m , h e r or t hem b efore a C i r c u i t J u d g e ; a nd i f the C i r c u i t J u d g e s hall b e of o pinion that t he p erson o r p ersons named i n s uch w a r r a n t a n d i n d i c t m e n t , a re t he owner o r o wners o f the s lave a pprobation o f the o wner o r s laves n a m e d i n s uch i n dictment, o r t hat h e, she or t hey acted as the a gent, o r bv o r o wners o f s uch slave o r s laves, t he p erson o r i t s hall be the d uty o f the J u d g e t o d ischarge

p ersons, taken b y v irtue o f s aid w a r r a n t , o ut o f c ustody. , . . S E C . 2 . Be it further enacted, T h a t i f the J u d g e s hall b e o f o pinion t hat t he p erson o r p ersous taken into custody b y v irtue o f t he G o v e r n o r s w a r r a n t , i s not the o wner o r o wners o f the s lave o r s laves i n the i n d i c t m e n t found v e y i n g a s lave against h i m , h e r o r t hem, i n any one of the U n i t e d States, f or s tealing a nd c ono r s laves w h i c h a re not t heir o w n p r o p e r t y ; o f s uch slave e r s laves, o r that h e, she or t hey d i d not act as the a gent, o r b y the a pprobation o f the o wner o r o wners

  
13 t hen i l s hall be the duty of the or persons Three i n t o custody t o the laws now i n f orce J u d g e to remand such person be dealt with according subject.

a g a i n , to o n that prisoners.

questions are e m b r a c e d i n the i n q u i r y under the act :

1. T h e identity of the

2 . W a s J e r r y a n escaping slave ? 3 . I f J e r r y w as an escaping slave, did the prisoners r emove h i m f rom O h i o , as the authorized agents, or by tion o f his o w n e r ? T h e i d e n t i t y of the prisoners, as the persons admitted. d e m a n d e d , is under T h e proof is satisfactory, that F o r b e s acted the a p p r o b a -

a r egular a n d duly authenticated p o w e r o f attorney from M r s . L o n g , a nd that A r m i t a g e acted w ith h i m and at his instance ; and a j ust construction of the act must regard Arwitagc, w h e n thus a c t i n g , as a c t i n g u n d e r and b y virtue of the p o w e r o f attorney, and w i t h t he a p p r o b a t i o n of M r s . L o n g . It r emains to i n q u i r e , whether J e r r y , a t the time of his r emoval from O h i o , was a fugitive slave. I t i s true this question must be tested by the p a r a m o u n t l a w o f the l a n d , and d i d the i mpression, e very e v i d e n c e e x h i b i t the be derived from, c ase and o f first respect a i d should

s hown to the adjudications of our sister States, i n a s c e r t a i n i n g w h a t the l a w is upon the c ase as stated. own w as B u t when the quesC o u r t of our He t he tion h as b een f ully a djudicated by the S u p r e m e o f what the l a w is. never taken a pprobation

state, such decision must be taken as conclusive e vidence I n this c ase J e r r y w as born a slave. beyond the l imits of K e n t u c k y with

or c onsent o f his owner.

H i s t rip t o C i n c i n n a t i The bailBy

a n d c ontinuance there i n the service of A l l g a i e r , was w i t h o u t t he k n o w l e d g e and against the w i l l o f his o w n e r . ment to A l l g a i e r was l i m i t e d both as to time and place. him f rom the State of K e n t u c k y . The act of

t he contract of hire he was expressly i n h i b i t e d from r e m o v i n g Allgaier in t a k i n g h i m to C i n c i n n a t i , c ould not be m ore p r e j u d i c i a l to the r ights o f his o w n e r , than i f he had b een t a k e n there b y a mere t respasser, or had b een s tolen and then removed. W h e n w e recollect the s pirit o f compromise est w h i c h many of the States felt i n the and concession u nder w h i c h the Constitution was adopted, and the d eep i n t e r question of fugitive

  
14
s laves, it "can scarcely t o that instrument be seriously contended, that the parties intended that the right of service and of B u t the Supreme Court that i f the bailee

cv;r

s hould, under such circumstances, be lost to the owner, h is p ower of reclamation c ease. 1 73, have expressly decided, t his S tate, i n the c ase o f Graham r . Strader, 5 B.

Munroe,

of a slave,

even with the assent of the owner, t ake h i m to C i n c i n n a t i for a t emporary purpose, and while there employ h i m in his service, f ind t he slave afterwards return to K e n t u c k y , no right of freedom is thereby acquired. clusive of the present o f J e r r y , after T h a t c ase m ust be regarded as conThe subsequent elopement of K e n t u c k y , , under pretence question.

his return to

g o i n g to procure his clothes, made h i m an escaping slave. I t ^ s u l t s , therefore, that the facts w h i c h have been u pon the i n q u i r y , show that the prisoners are p rotecting clause t o the agent i s d irected o f ' t h e a ct of 1820, and that the proved t he warrant within

o f the E x e c u t i v e d ocs n ot justify an order for their delivery of the State of O h i o . to certify to A l l of w h i c h the the S h e r i f f of his E x c e l l e n o y Governor

K e n t u c k y , u pon the return of his warrant. MASON APRIL 1 3, I 8 4 f i . BROWN. Judge \7th Judicial District'

SPEECH

OF

MR. J O H N S T O N .

May

it please your Honor : W i t h o u t s etting up any c l a i m to

m odesty, I c onfess t hat I appear b efore y ou l a b o r i n g under g reat embarrassment   such k n o w there is none. a m safe     but as I never b efore f elt. N o t that a ny inflamatory excitement is felt against me personally, for I iMot on account of any personal h a z a r d to be i n c u r r e d by a n y t h i n g I am about to say,   for I k n o w I on account of the novelty of my position, a n d of the c ause i n w h i c h I appear, and 1 c ome h ere t he intrinsic importance t he vast moment

of the questions involved i n i t .

  
51
n ot to quarrel w i t h t he domestic institutions of K e n t u c k y , n o r u n h a p p i l y too great on both sides o f my efforts to promote citizens o f sister States, w hose I had rather contribute

t o add to the excitement t he water.

p eace a nd g ood w i l l b etween

i nterests, r ights and feelings are so nearly one; who have so often m ingled t he blood of consanguinity i n the b onds o f p eace ;     a nd t he blood of patriotism on the field of battle, to secure the c ommon blessings of u n i o n , l i b e r t y and law to both. I c ome It h ere as the agent of the E x e c u t i v e of O h i o , w ith a l egal requisition f or certain persons charged as fugitives from justice. i s m y mission to urge certain legal and i n t e r n a t i o n a l rights of t he State w h i c h I r e p r e s e n t ; and I feel that i n this c o m m u n i t y I m ay safely discharge that duty as f ully a nd b o l d l y , as i f I s tood i n the halls of justice i n the c a p i t a l of my own State. B efore I ever set my f oot i n this S t a t e , one of the first i n c i dents w h i c h called my attention to the character o f its people, w as the valedictory address of a veteran Statesman, who, h a v i n g finished his career, and resigned the cares of p u b l i c l i f e , h ad t o m e u p, as he said, to lay his b ones i n K e n t u c k y ; b ecause h e k n e w that i f they reposed i n K e n t u c k y e a r t h , the f oot o f a t yrant s hould never t r e a d upon them. a n d a b i d i n g confidence, A n d I feel a strong as I stand b efore y o u to day to debate

t hese vexed and e x c i t i n