Fifth. Whether such transportation, with the circumstances thus mentioned, is not "harboring" or "concealing" within the meaning of the statute, although the fugitive should be recaptured by his master.

Sixth. Whether such transportation, in an open wagon, whereby the services of the fugitive are entirely lost by his master, is not harboring the slave within the statute.

Seventh. Whether a claim of the fugitive upon the person who harbors or conceals him, must precede or accompany the notice.

Eighth. Whether any overt act of a character so marked as to show an intention to elude the vigilance of the master, or his agent, and calculated to effect that object, is harboring the fugitive within the statute.

The judges of the Circuit Court require also instructions upon six questions which arose upon the motion in arrest of judg

ment.

First. Whether the first and second counts in the declaration contain sufficient averments that Andrew, the colored man, escaped from the State of Kentucky into the State of Ohio.

Second. Whether said counts contain a sufficient averment of notice, that Andrew was a fugitive from labor.

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

Fourth. Whether those counts are otherwise sufficient.

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

Sixth. Whether that act is repugnant to the ordinance of Congress of July, 1787, entitled, "An Ordinance for the government of the territory of the United States, northwest of the Ohio."

I humbly beg leave to submit my views upon these questions, under four propositions:

FIRST. THE DECLARATION IS INSUFFICIENT.

SECOND. THE EVIDENCE WAS IMPROPER AND INSUFFICIENT. THIRD. THE ACT OF 1793, SO FAR AS THE PRESENT SUBJECT IS INVOLVED, IS VOID, BECAUSE IT VIOLATES THE ORDINANCE OF 1787. FOURTH. THE ACT OF 1793 CONFLICTS WITH THE CONSTITUTION OF THE UNITED STATES, AND IS THEREFORE VOID.

Thus my argument, which begins in the mazes of special pleading, will conduct us through a portion of the interesting field of the law of evidence, and bring us, at last, into the wide domain of constitutional law. If I should fail by the way, I hope it may be remembered, for my excuse, that an imperative duty commanded me to undertake so long and difficult a journey.

FIRST. THE DECLARATION IS INSUFFICIENT.

Because, first, neither count sufficiently charges the defendant with notice that Andrew was a fugitive from labor.

Secondly. It is not sufficiently averred that Andrew was held to labor or service to the plaintiff in Kentucky, by the laws thereof, and escaped and fled from that state into Ohio.

VOL. 1-31.

Thirdly. It is not sufficiently averred, that the defendant harbored or concealed the fugitive.

FIRST. It is not charged, in either count, that the defendant had notice before the alleged harboring or concealment, that Andrew was a fugitive from labor.

The substance of the statute may be briefly stated as follows:

SECTION 3. "When a person held to labor in any state or territory, under the laws thereof, shall escape into any other state or territory, the person to whom such labor is due, or his agent, or attorney, may seize or arrest the fugitive."

SEC. 4. "If any person shall, knowingly and willingly, obstruct, or hinder, such 'claimant, or his agent, or attorney, in thus seizing and arresting the fugitive, or shall HARBOR OR CONCEAL SUCH PERSON, AFTER NOTICE that he or she is a fugitive from labor, as aforesaid, he shall, for either of the said offences, forfeit and pay the sum of five "hundred dollars."

"

The offence pretended in the declaration is, what is created by the second clause of the 4th section, and consists in "harboring," or "concealing" a fugitive from labor, after notice received that the person thus protected has escaped from labor, to which he was held by a law of the state, from which he fled.

His Honor, the presiding Judge of the Circuit Court, [McLEAN,] held, that positive, direct, and formal notice was not necessary; and that knowledge possessed by the defendant, however obtained, was equivalent to such notice, or a substitute for it. Such a construction of the statute is obviously necessary to support this declaration. But this construction relieves this penal statute against liberty and humanity of a condition favorable to both, expressly and emphatically declared. A person shall not forfeit and pay five hundred dollars for merely harboring or concealing a fugitive. Such protection and hospitality shall not subject the offender to punishment, even though knowingly and willingly rendered. He may harbor the slave, and conceal him from his pursuers, as the law of nature commands, until after notice that the master forbids. The words AFTER NOTICE are strongly contrasted, in this clause of the section, with the previous words knowingly and willingly, in another part of the same section. The word after gives precision. It is not with knowledge, or even with notice, but after notice. And this form of expression raises the notice prescribed, up to the dignity of a condition precedent of the crime.

If NOTICE be a condition precedent, then the notice must be explicit, certain, direct and comprehensive. Such notice is capable

of being averred. No such notice is averred; or, at least, none such is described.

The learned Judge held that, as a general principle, when the law speaks of notice, it does not contemplate a notice in writing, unless it be required by statute, by commercial usage, or by the practice of courts. He held also, as a general principle, that knowledge is equivalent to notice. But I humbly submit that these general principles, however true, are never applied in construing penal statutes. Legal conditions may be dispensed with for equivalents, to promote the ends of justice in civil controversies; but they cannot be waived when they are barriers, erected for the protection of the accused.

Wisdom and humanity are manifested in this condition precedent of notice, as contrasted with mere knowledge. For he who obstructs, or hinders a master in the act of recapture, does, what under the law of slavery, is a palpable private wrong, and commits a breach of the peace. But harboring and concealing a weary and fainting slave, though known as a slave, is not injurious, and does not disturb society. Under no law can this act be deemed immoral; and in most cases it would be charitable. It can only become an offence when persisted in after notice. The Constitution provides only for the surrender of fugitives when claimed, and the law, following the Constitution, forbids the freeman to harbor the slave, only after notice of a design, or purpose to reclaim. If there be no such effort or design, it is as lawful, and as humane to harbor the slave, as to entertain a fellow freeman. But the construction of the learned Judge makes the Congress of the United States interdict protection, hospitality, and charity to the slave, whom no master pursueth, and commands the citizen to shut out the wandering fugitive who may be perishing at his gate. This would be injurious to the master, as well as inhuman toward the slave. If he be left to die, his services will be lost; but if he be harbored and revived, he will be in a condition to be reclaimed.

Nor is the principle that mere knowledge, however acquired, is equivalent to direct notice at all as general, even in commercial law, as is supposed. In an action against the indorser, or drawer of a bill of exchange, if the plaintiff do not aver in the declaration a demand of payment at the proper time, on the drawee or acceptor, or omit to allege due notice to the defendant, of refusal of

payment by the party first liable, the omission is fatal. And what is required in those cases is direct notice.* The only reason for this is, that the defendant is not at all liable until AFTER NOTICE. The well-known case of Rushton vs. Aspinwall,t was an action against an indorser, and the declaration contained an averment of request of the acceptor, but no allegation of notice to the indorser. Lord Mansfield said, "the defendant is sued on a promise inferred by law, and the declaration does not contain the premises from which the inference can be drawn." reasoning applies with precision to the present case.

This

Where it is necessary to charge a party, notice must be fully averred. Thus in Comyn's Digest Tit. Pleader 69, it is laid down as a rule, that not only must NOTICE be averred, but it must be averred with particular certainty of time, place, and substance.

This action is founded upon a statute. There is an inflexible rule, that in such a case the plaintiff must aver every fact essential to the offence, because unless the declaration be thus explicit, the court cannot determine, whether the prosecutor has a cause of action. The defendant may innocently harbor a slave until after notice. Then notice is a condition. It is more; it is a condition precedent. Then the party harboring is entitled to notice. That notice must be given by him who seeks to subject the defendant to the penalty. Giving the notice, then, is a condition to be performed by the plaintiff, and by no one else. This action is founded on a contract created by law.

The statute builds the obligation upon two facts: First, that the defendant has received notice, that the person harbored is a fugitive from labor, held &c.; and secondly, that the defendant, after that notice, harbors the fugitive. But, "when the performance of an agreement depends on an act, to be done by the plaintiff, then his doing the act, is a condition precedent, and the court will not inquire, whether its performance would be beneficial to the defendant, or its neglect would be injurious. The act must be done."

Again, the case is exactly similar to one where a previous request is made a condition of liability. But the authorities teach us, that if there be a condition, that a person shall do upon request,

* Gould's Pleadings, Chapter IV. § 13, 14, 15, 16.

+ Douglass, 683.

Comyn's Digest, Pleader C. 76.

Ibid.

then the averment of request must be certain, and express, and thus show full performance of the condition precedent.* Two forms of requests are recognized in pleading; general and special requests. A declaration on a contract always contains an averment, that the plaintiff requested the defendant to perform, even though the request was not a condition precedent. In such cases, the request averred is general, without particularity of time, place, or circumstances. The allegation is merely formal. It cannot be traversed by the defendant, nor need it be proved by the plaintiff. But a special request is one which is a condition of the defendant's liability. And in such cases, the special request must be averred with particularity. Issue may be taken on it, and it must be proved, as charged. The notice prescribed in the act of 1793, is equivalent to a request. The law contemplates that the defendant may be found harboring a slave, as a mere act of hospitality, or of humanity, whereby his services may be lost to his master, authorizes the master to deprive the slave of his refuge by giving notice to the defendant of the slave's relation, and imposes a penalty on the defendant, if he do not then withdraw his protection.

We need not inquire whether written notice would be necessary, whether verbal notice would be sufficient, how vague the notice might be, whether it must be given directly, served personally, published or printed. The objection is, not that an insufficient or unartificial notice is averred, but that no notice whatever is alleged.

If this argument be sound, this court will direct the circuit court to arrest the judgment, because the declaration is insufficient. It is true, that in the second count it is averred that the defendant "Had notice that the said Andrew was a slave of the plaintiff, and a fugitive from labor." But this alleged notice is merely general and vague, and it is not shown how, when, where, or by whom it was given; it is not shown that the defendant had notice that Andrew was held to labor, to the plaintiff in Kentucky, by the laws thereof, or that he fled from Kentucky. An averment of notice so vague as that contained in the second count is as bad as no

averment.

The constitutional provision, on the subject, is, that "No person held to service or labor in one state, under the laws thereof, es* Comyn's Digest, Condition 10, 11.

+ Dana's Abridgment, Pleading Chapt. 177. Art. I. Section 2, 8. and Vol. VI. p. 26.