ments 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."

T

HIS case came up from the Circuit Court of the United States for the District of Ohio, on a certificate of division in opinion between the judges thereof.

It 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

the 12th of February, 1793, for concealing and harboring a fugitive slave belonging to the

plaintiff. The act is found in 1 Statutes at Large, 302.

The 3d and 4th sections, which were the only ones involved in this case, are as follows:

"Sec. 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 there

As

abandoned in the progress of the cause. 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 the 23d day of 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

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 sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled.

a

said, 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, benefits, 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

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 217*] of *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

years, was the slave of, and in the possession of the plaintiff, *and his property, and [*218 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 de

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 me 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,

"Of counsel for Jones.

"William H. Seward,

"Of counsel for defendant, Van Zandt. "26th February, 1847."

The evidence thus adopted by agreement was stated by Mr. Justice McLean, in the trial below, as follows: See 2 McLean's Reports,

597.

"Jones, a witness called by the plaintiff, stated that the plaintiff owed 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, the 22d of 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 same 219*] *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 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

sum.

"Several other witnesses corroborated the

cited. The witness, and one Hargrave, another witness, started, in a short time, in pursuit of the wagon. They overtook it near Bates's, 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 stopped 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.

*"Hume, very early on Sunday [*220 morning, saw the wagon moving very rapidly, and two men on horseback pursuing it, near Bates's. 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 left 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

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 Hill, 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-men 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 counsel, moves the court for a new trial, assigns the following reasons:

his and

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's 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 some one 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.

*In order to bring these questions be- [*222 fore 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 12th 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.

Second. 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.

Third. 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.

Fifth. 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.

Sixth. 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.

Seventh. Whether a claim of the fugitive from the person harboring or concealing him must precede or accompany the notice.

Eighth. 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 stat

ute.

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 223*] contain the necessary *averments, that Andrew, the colored man, escaped from the State of Kentucky into the State of Ohio.

Second. 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.

Third. Whether the averments in said counts, that the defendant harbored said Andrew, are sufficient.

Fourth. Whether said counts are otherwise sufficient.

Fifth. Whether the act of Congress, approved February, 12th, 1793, be repugnant to the Constitution of the United States.

Sixth. 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."

The case was submitted on printed argument, by Mr. Morehead for the plaintiff, and Mr. Chase and Mr. Seward for the defendant. It is impossible to insert the whole of these arguments, as that of Mr. Chase is upwards of one hundred pages, and that of Mr. Seward forty pages, in length.

The points stated and argued by Mr. Chase were the following:

1. Whether the plaintiff's declaration be sufficient; and, under this head, what are the requisites of notice under the Act of 1793.

2. What acts constitute the offense of harboring or concealing, under the statute?

3. Whether the Act of 1793 be consistent with the provisions of the ordinance of July 13, 1787.

4. Whether the Act of 1793 be not repugnant to the Constitution of the United States. Mr. Seward stated his points as follows: 1. The declaration is insufficient.

2. The evidence was improper and insufficient.

3. The Act of 1793, so far as the present subject is involved, is void, because it violates the ordinance of 1787.

4. The Act of 1793 conflicts with the Constitution of the United States, and is therefore

void.

debt for a penalty of $500, under the Act of Congress of February 12th, 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.

*First, on rulings made at the trial, [*224 and, second, 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, C. C. 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 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. Daniel, 6 Wheat. 542; 4 Wheat. 213; 5 Cranch, 11, 187; 4 Wash. C. С. 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 law 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. sec. 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:

Sec. 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."

Sec. 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 Statutes at Large, 303, 305, Act of Feb. 12, 1793.

*The first question at the trial on [*225