' THE COTJB.T, l-eferringtothe fact,thatthis i evidence had been held to be inadmissible, on a former trial between these parties, when Judge McLean was present, now overruled it.2
Judge LEAVITT
stated to lie jury the points of law arising in the case, in substance, as follows:
The constitution of the United States, in the second section of the fourth article, declares, that “no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any taw 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.” Under the power conferred by this provision, congress, on the 12th of February, 1793, passed the act, entitled, “An act respecting fugitives from justice, and persons escaping from the service of their masters.” By the third section of this act, it is provided, that when any person held to labor in one state, shall escape into another, the person entitled to the labor or service of such person, may seize or arrest him or her, and convey him or ner before any of the judicial officers designated, within the state in which the arrest was made, for the purpose of making proof that such fugitive owes service to the person setting up such claim, and obtaining, a certificate to that effect. The fourth section provides, “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, &c.; or, shall harbor or conceal such person, after notice that he or she was a fugitive as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered, by and for the benefit of such claimant, by action of debt, in any court proper to try the same; saving, moreover, to the person claiming such service or labor, his right of action for or on account of the said injury, or either of them.”
This action is brought under the last clause of the section just quoted. The declaration contains two counts: the first, for obstructing or hindering the arrest of the fugitives; the second, for harboring or concealing them. To sustain the first count, there must be evidence of some act of interference by the defendant, tending to impair the right of re-caption, secured by the statute. No precise rule can be laid down, by which to determine what act shall constitute an obstruction or hindrance, within the prohibition of the statute. The right of arrest is conferred by the constitution and the act of 1793, in the most explicit terms, and without any express restriction or qualification. It may be inferred, that this power was thus conferred, in part, at least, from the consideration, that the ar-restas in the nature of a preliminary proceeding, and not conclusive of the rights of the suspected fugitive. When arrested, such person is to be conveyed, without any unreasonable delay, before some one of the judicial officers named in the statute, within the state in which the arrest is made, for the purpose of a legal inquiry whether he or she is, in fact, a fugitive from labor. And, it is. only by the exhibition of proof establishing-the affirmative -of this inquiry, that the person arrested can be retained in custody, and. removed to the state where “labor and service” are due. On failure to prove this fadff the person arrested is entitled to his discharge; and, it is presumed, would have a right of action against the person making the-unlawful arrest, for damages. It may alscv be suggested, that there is a further security against a lawless and oppressive arrest, in the fact that by the statutes of many, if not all, the non-slaveholding states, the penalty of the crime of kidnapping is incurred by an unauthorized arrest of any one on pretence-that such person is a fugitive from labor, and. the attempt to convey him or her to a slave-holding state, to be held in servitude.
It is very clear, that the penalties provided by the act of congress, are not incurred by one-who is merely passive, in the attempt of the-owner, or his agent, to reclaim and arrest an alleged fugitive from labor. The statute imposes no obligation on any one to aid in the-recaption. Under a law so penal in its character,’ it would be monstrous, by mere implication, to recognize such an obligation. Nor, will the mere inquiry, made in good faith, by what authority an arrest is sought to be made, bring a party within the prohibition of the-statute. The penalty is denounced against any one, who “knowingly and willingly” obstructs or hinders an arrest In the case of one, who has had no agency in the escape of the suspected fugitive, and is not to be presumed to be apprised of the fact, that the person is a fugitive from labor, and who haa taken such person into his employment, or under his protection, without any improper-intention, the penalty is not incurred, by merely inquiring into the authority to make the arrest Such an inquiry, in the case supposed, would be entirely justifiable. Neither is it deemed to be a violation of the rights of the claimant to insist that the alleged fugitive shall have a fair trial, upon the question, whether he or she owes “labor and service” to such claimant On the other hand, it te-clear the penalty of the statute may be incurred, without a resort to violence, in hindering or obstructing an arrest. Any act done, with the intention of defeating the arrest, and which tends to that result, is a violation of the rights of the claimant. If, after-knowledge of the fact that a person is a fugitive, a demand is made to arrest on the premises of another, and refused, such refusal' subjects the party to legal liability. An offer having been made to arrest, the party making it is under no obligation to commit either-a trespass or a breach of the peace, in carrying his purpose into effect. The withdrawal; or removal of the person of the alleged fugitive, by the order or direction of another, so. [1099]*1099as to prevent an arrest, is also a hindrance and obstruction within the meaning of the statute.
Having stated these principles, as applicable to the count for obstructing and hindering the arrest, I will briefly notice the count for harboring or concealing. The learned judge,'who presided in this court, on the trial of an action between these parties, brought to recovei- the specific- penalty provided for by the statute, has held that “the words ‘harbor’ or 'conceal,’ were not used in the statute as constituting two distinct offences, but as descriptive of one offence.” And he has also held, that, “to harbor or conceal a fugitive from labor, within the meaning of the statute, it must be done with a view to elude the claim of the master.” There can be no question, that this is the correct construction of the law. By the express words of the statute, to constitute the offence of harboring or concealing, there must be notice or knowledge, that the person harbored or concealed, is a fugitive from labor. This presupposes that there must be an intention to prevent a recaption. The intention therefore decides the character of the act. Hence the same eminent judge, in the ease before referred to, says, “If a shelter be afforded to the fugitive, for an hour, a day, or a week, when there is manifestly no design to conceal him from the pursuit of the master or his agent, or in any way to defeat the legal right of the master to his service, there is no violation of the statute.”
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' THE COTJB.T, l-eferringtothe fact,thatthis i evidence had been held to be inadmissible, on a former trial between these parties, when Judge McLean was present, now overruled it.2
Judge LEAVITT
stated to lie jury the points of law arising in the case, in substance, as follows:
The constitution of the United States, in the second section of the fourth article, declares, that “no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any taw 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.” Under the power conferred by this provision, congress, on the 12th of February, 1793, passed the act, entitled, “An act respecting fugitives from justice, and persons escaping from the service of their masters.” By the third section of this act, it is provided, that when any person held to labor in one state, shall escape into another, the person entitled to the labor or service of such person, may seize or arrest him or her, and convey him or ner before any of the judicial officers designated, within the state in which the arrest was made, for the purpose of making proof that such fugitive owes service to the person setting up such claim, and obtaining, a certificate to that effect. The fourth section provides, “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, &c.; or, shall harbor or conceal such person, after notice that he or she was a fugitive as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered, by and for the benefit of such claimant, by action of debt, in any court proper to try the same; saving, moreover, to the person claiming such service or labor, his right of action for or on account of the said injury, or either of them.”
This action is brought under the last clause of the section just quoted. The declaration contains two counts: the first, for obstructing or hindering the arrest of the fugitives; the second, for harboring or concealing them. To sustain the first count, there must be evidence of some act of interference by the defendant, tending to impair the right of re-caption, secured by the statute. No precise rule can be laid down, by which to determine what act shall constitute an obstruction or hindrance, within the prohibition of the statute. The right of arrest is conferred by the constitution and the act of 1793, in the most explicit terms, and without any express restriction or qualification. It may be inferred, that this power was thus conferred, in part, at least, from the consideration, that the ar-restas in the nature of a preliminary proceeding, and not conclusive of the rights of the suspected fugitive. When arrested, such person is to be conveyed, without any unreasonable delay, before some one of the judicial officers named in the statute, within the state in which the arrest is made, for the purpose of a legal inquiry whether he or she is, in fact, a fugitive from labor. And, it is. only by the exhibition of proof establishing-the affirmative -of this inquiry, that the person arrested can be retained in custody, and. removed to the state where “labor and service” are due. On failure to prove this fadff the person arrested is entitled to his discharge; and, it is presumed, would have a right of action against the person making the-unlawful arrest, for damages. It may alscv be suggested, that there is a further security against a lawless and oppressive arrest, in the fact that by the statutes of many, if not all, the non-slaveholding states, the penalty of the crime of kidnapping is incurred by an unauthorized arrest of any one on pretence-that such person is a fugitive from labor, and. the attempt to convey him or her to a slave-holding state, to be held in servitude.
It is very clear, that the penalties provided by the act of congress, are not incurred by one-who is merely passive, in the attempt of the-owner, or his agent, to reclaim and arrest an alleged fugitive from labor. The statute imposes no obligation on any one to aid in the-recaption. Under a law so penal in its character,’ it would be monstrous, by mere implication, to recognize such an obligation. Nor, will the mere inquiry, made in good faith, by what authority an arrest is sought to be made, bring a party within the prohibition of the-statute. The penalty is denounced against any one, who “knowingly and willingly” obstructs or hinders an arrest In the case of one, who has had no agency in the escape of the suspected fugitive, and is not to be presumed to be apprised of the fact, that the person is a fugitive from labor, and who haa taken such person into his employment, or under his protection, without any improper-intention, the penalty is not incurred, by merely inquiring into the authority to make the arrest Such an inquiry, in the case supposed, would be entirely justifiable. Neither is it deemed to be a violation of the rights of the claimant to insist that the alleged fugitive shall have a fair trial, upon the question, whether he or she owes “labor and service” to such claimant On the other hand, it te-clear the penalty of the statute may be incurred, without a resort to violence, in hindering or obstructing an arrest. Any act done, with the intention of defeating the arrest, and which tends to that result, is a violation of the rights of the claimant. If, after-knowledge of the fact that a person is a fugitive, a demand is made to arrest on the premises of another, and refused, such refusal' subjects the party to legal liability. An offer having been made to arrest, the party making it is under no obligation to commit either-a trespass or a breach of the peace, in carrying his purpose into effect. The withdrawal; or removal of the person of the alleged fugitive, by the order or direction of another, so. [1099]*1099as to prevent an arrest, is also a hindrance and obstruction within the meaning of the statute.
Having stated these principles, as applicable to the count for obstructing and hindering the arrest, I will briefly notice the count for harboring or concealing. The learned judge,'who presided in this court, on the trial of an action between these parties, brought to recovei- the specific- penalty provided for by the statute, has held that “the words ‘harbor’ or 'conceal,’ were not used in the statute as constituting two distinct offences, but as descriptive of one offence.” And he has also held, that, “to harbor or conceal a fugitive from labor, within the meaning of the statute, it must be done with a view to elude the claim of the master.” There can be no question, that this is the correct construction of the law. By the express words of the statute, to constitute the offence of harboring or concealing, there must be notice or knowledge, that the person harbored or concealed, is a fugitive from labor. This presupposes that there must be an intention to prevent a recaption. The intention therefore decides the character of the act. Hence the same eminent judge, in the ease before referred to, says, “If a shelter be afforded to the fugitive, for an hour, a day, or a week, when there is manifestly no design to conceal him from the pursuit of the master or his agent, or in any way to defeat the legal right of the master to his service, there is no violation of the statute.”
Keeping these principles in view, it iskfor the jury to decide, whether the defendant has harbored or concealed the fugitive, as alleged in the second count of the declaration. From the evidence, it does not appear, except as a matter of vague inference, that the defendant had knowledge that the woman and boy were slaves, till so informed by Col. Mitchell. And there would seem, therefore, to be no sufficient ground for assuming, that he had been guilty of any violation of the statute, prior to his obtaining such knowledge from Mitchell. It is insisted, however, that he harbored or concealed the fugitive, after being notified that they were slaves. The only proof in support of this position is, that the defendant said, the woman and boy.left his house the evening following the interview between him and Col. Mitchell; having been informed by defendant, that they could remain no longer with him. If, from motives of humanity, the defendant permitted the fugitives to remain with him, for a short time, after notice of their real character, without any design thereby to eltffle the claim of the owner, he did not “harbor, or conceal” them, within the contemplation of the statute.
It is strenuously contended by the counsel for the defendant that the testimony of the witness Mitchell is unworthy of credit Several intelligent witnesses have been called, who state in substance that on the exaruination which took place at the court house, in Sandusky, in reference to a charge for a riot, made against Mitchell arid Driskell, and one Martin, the defendant was examined as a witness, and made a statement of the facts occurring at his gate, during the interview between him and Mitchell, varying in some essential particulars from the facts as stated ■by Mitchell, in his testimony in this case. To the correctness of the statement of the defendant, the witness Mitchell gave his assent. It also appears, from the testimony of the witnesses of the defendant, that Mitchell, on the same occasion, gave a narration of the facts occurring during the interview referred to, agreeing essentially with the statement of the defendant, then made, and in which there was an omission of some important facts, now stated. The credit due to witnesses belongs exclusively to the jury. It will be them duty to reconcile conflicting statements, in such a manner that, if possible, the whole may be regarded as consistent with truth and the integrity of the witnesses. But, if the statements of witnesses are so discrepant that they can not be thus made to harmonize, it will be for the jury to say where the truth lies.
I have now only to suggest, that although this action has originated in the existence of slavery in an adjoining state, the views of the jury, in relation to that subject in the abstract, should .exert no influence in their conclusions as to the merits of this controversy. Like every other case tried in a court of justice, it should be decided according to the law and the evidence. If the plaintiff has suffered a wrong, for which the law gives him redress, it is the plain duty of the court and jury to aid him in obtaining that redress. It can not be disguised, that the subject of slavery is at this time a fruitful source of public agitation. Unfortunately, it has become a chief element of political excitement in our country. Whatever may be our individual views of this subject, it is clear, we shall best acquit ourselves of the responsibility now resting upon us, by taking care that the rights of the parties to this action are in no way affected by the existing state of public feeling, on the question of slavery. In Ohio, popular sentiment is no doubt strongly against that institution; and, there are few, if any, of her citizens who do not rejoice, that its admission into the state is precluded by a barrier, that may well be deemed insurmountable. Still, it may be taken for granted, that with very few exceptions, the citizens of that state are disposed readily to accord to the citizens of states in which slavery is tolerated by law, the rights solemnly guarantied to them by the constitution of the Union, and the laws passed in pursuance thereof. The act of 1703, under which the plaintiff has sought redress in this action, has been repeatedly brought to the notice of the supreme court of the United [1100]*1100States, and that tribunal—on such questions, the only authoritative one in the Union—has adjudged it to' be ■ a constitutional law. It can, therefore, only cease to be a law when repealed by the same authority by which it was enacted.
[NOTE. This case was afterwards heard on defendant’s motion to retax the costs. See Cases Nos. 4,075 and 4,070.]
The jury returned a verdict for the plaintiff, on the count for hindering and obstructing the arrest—assessing the damages at $500, the proved value of the slaves in question, at tlie time of their escape. On the count for concealing and harboring, the verdict was for the defendant.
A motion was filed by the defendant for a new trial, which was overruled, and judgment entered on the verdict.