Driskell v. Parish

7 F. Cas. 1093, 10 Law Rep. 395

• Court: U.S. Circuit Court for the District of Ohio
• Decided: November 15, 1847
• Status: Published

Opinion

MeLEAN, Circuit Justice.

This action is brought to recover penalties under the act of congress in relation to fugitives from service. That act has been held to be constitutional, but it is penal in its character, and must be strictly construed. The penalties given by it go to the plaintiff. The defendant is charged with harboring and concealing two fugitive slaves of the plaintiff, and with obstructing their arrest. The declaration contains two counts for harboring and concealing, and two for obstruction; but several penalties cannot be recovered for the same act, whatever be the number of persons harbored, or whose service is obstructed: nor can the same act be separated into distinct charges of harboring and obstructing, and thus be made the foundation for the recovei-y of distinct penalties. To establish the charge of harboring and concealing there must be satisfactory proof that the defendant, with full knowledge that the persons harbored were slaves escaped from another state, concealed them with intent to elude the vigilance of the master and defeat his claim. To establish the charge of obstruction there must be proof that the plaintiff. in person, or by his authorized agent, attempted to arrest the fugitives, and that the-defendant, with the same full knowledge, wilfully obstructed the arrest. The important fact to establish is that Colonel Mitchell attempted to make the arrest. He must have apprized the defendant that these were escaping slaves—that he was authorized to make the arrest, and that he did attempt to make the arrest, and was prevented by the defendant. To secure a fair trial to persons claimed as fugitive slaves, and to insist upon a fair trial in their behalf is laudable: but such efforts should be made in good faith. It is the province of the jury to weigh the evidence. If they are satisfied beyond a reasonable doubt, that the defend.ant has harbored and concealed the fugitive servants of' the plaintiff, and has obstructed their seizure by such acts as the court has defined, they will find for the plaintiff; otherwise they will find for the defendant.

The case was then submitted to the jury. After having been out about an hour, the jury sent a request to the court to define the manner in which their verdict should be given; whether they were obliged to find on all the counts of the declaration, or might give in a verdict as to a part. The court instructed them that the two counts for obstructing related to one offence, and the two counts for harboring to one offence. For each of these offences five hundred dollars can be claimed. The same act cannoi be construed both as a harboring and' obstructing. There must be two distinct acts to constitute these ■ two offences. If there is but one, the jury must decide whether it is an obstruction or a harboring. The jury then retired, and afterwards returned a verdict for the plaintiff—finding the defendant guilty both of harboring the slaves and obstructing the master. The obstruction consisted in the conduct of Mr. PaiTish at the gate; the harboring in permitting the slaves to remain in his house until nightfall—an “intent to elude the vigilance of the master” being inferred. The next morning Messrs. Chase and Andrews moved for a new trial, because the verdict was against evidence.