Year: 1859

NulNh H. was gwen


This brings you gentlemen Of the jury, to


the consideration Of an important question of


fact, viz: did Jennings hold the fugitive, at the


time Of the rescue, by virtue Of the power of


attorney


When the agent acts, under this law by


power Of attorney, the statute provides that


he "may pursue and reclaim the fugitive
either by procuring warrant from some one
OF the courts, Judges or commissioners named


in the act) for the apprehension of such fuei-
tive from service or labor or by seizing aud
aresing such fugitive, when the same can


be done without process, and by taking or
causing such person to be taken forthwith be-


fore such court, Judge sc.


The fugitive may be seized and held upon


the warrant, or by virtue of the power of at
torney. Both modes Of capture and deten-


ton have but the single purpose Of bringing


the fugitive before the Judge or commissioner


The person making the arrest has the same
power and authority in the one case as in the
other. And yet the agent may, at the same


time, resort to both modes of capture and de-


tenton. The agent mny himself take the fu-


gitve before the Judge or commissioner or he


may caase him to be taken before such officer


by virtue of the warrant The authority of
the agent holding the power Of attorney is
paramount TO that of the officer holding
the warrant The warrant if obtained
IS procured at the instance Of the
agent and when used is mere
auxiliary to the authority co inferred upon the
agent 10y virtue of the power of attorney


The marshal in executing the warrant may act
under the direction of the age MT and in the
matter of holding the fugitive when so arrest
cd the agent has complete cont rOl over the
whole SUBJECT, and may, unquestOnably, set
the fugitive at liberty before the return of the
writ.


II is not the case of the execution of pro
cess, emnatng trom different aud conflicting
Jurisdictions. In such case, ehc officer first
making the seizure has, by virtHe@f his process,
exclusive. control and possession oi the thing
seized Under this statute, il 10 clear. that the
warrant is auxiliary to the power ofape,pey.


IT. then, the proof shows that at the tine Of
the rescue at wellington, Jennings aud Lowe
had JOINT control over the fugitive, the fqr-iI
mer IN virtue OF good aud sufficient power ofl
attorney for his reclamation, and the latter as.
serllng him as the agent of the owner Of the
slave, by means of warrant or 9th erwisc, such
proof sustains the allegation in the indictment,
that SAID negro was in the custody and under
tue control OF Anderson Jennings as age at and
attorney OF John G.. Bacon together with one |
Jacob X. Lowe, then and there lawfully ass, St |
ing him in the custody and control of said ne
gro slave called John"


have been thus explicit upon this point, be.
cause it is one that has been the subject olmucb
discussion by counsel, and because it was pro-
per that the instructions given to you upon if.
should be the result Of careful consideration.


Should you find from the testimony that
Jennings held the fugitive by virtue of the
power Of attorney, and that the negro was the
identical slave that had escaped from Bacon.
there still remains the all important ipouirv in |
the case did the defendant unlawfully, know
ingly and willingly rescue the fugitive from his
lawful captors


The rescue could not be obnoxious TO the
provisions of the statute, unless it implicated
the defendant as acting knowingly and willingly
in the matter That is to say, it must appear
IN proof that he knew the negro was n iuoi.
tive from labor, and was lawfully held hy those
who had possession and control over him at the
time of the rescue, or that the defendant
acted under such circumstances as to show
that he might have had such knowledge by ox-
ercslng ordinary prudence


1t Ia claimed by the prosecutor. that this
knowledge, ON the part of the defendant is es.
lablished by the positive testimony OF JENNINGS
Lowe and others, and that upon this point, the
proof permits Of no doubtful inference or con.
lecture.


1t is asserted (and whether truly or not is for
you to determine from the evidence) that Lowe
as deputy Marahal acting under the directions
of Jennings and in virtue of a Commissiouer's
warrant, seized and arrested the fugitive near
the village of Oherlin; that he conveyed the
slave to Wellington aud there surrendered the
principal control over him TO the authorized
agent OF the owner, aud thereafter acted in sub
ordination to, and as an assistant Of that agent
That the defendant was fully Informed by Lowe
at two several interviews, OF the relation which
the negro bore to Bacon and of tho authority
by which he was captured and held


But the defendant contends that notwithstand-
ing the proof may show his knowledge of the
seryltude due from the negro to Bacon his mas-
ter, and OF the authority hy which he was held.
that e,lt fails to establish the defendants guilt
as partcipator in the rescue charged in the
indictment, And il is further insisted, in view
OF all the evidence in the case, that on acquir-
ing the knowledge that the negro was a slave
aud lawfully held the defendant not only alb
stained from the commission of any unlawful
act himself but was in fact really active aud
sincere IN persuadmg others to peaceful
course of conduct, and to faithful observance
of the law.


In regard to the legal implication of the de-
fendlnt's guilt and his completely in the rescue
OF the fugitive charged in the indictment, the
instructions of the Court, given on a former oc.
easlon, may properly be repeated here, as they
enunciate the principle of law which is deemed
to be applicable TO this branch of the Gu e.


n the persons i0ho constituted the assembiage
at Wellington on He l3M of September, 1855,
had come together for the purpose or iOhen there
tocre engaged an reseutHg fugitpe STARE f0n
thOSG authorized 10 capture and hoid him under
the iaw Of 1850, they mere engaged N an u,,iaie-
M act and UhateBer l0aS sad and done by ne
N He ptOSeGyiia8 Of he enterprise, lgcye, 10 all
latcats and purposes ihc deplqratiqRs qad aeis
Of GH


But to charge one against whom there is no
specific proof Of things done by him, with what
was doHu and gad by others in the prosecution
Ql the uplaWlpl enteTpnze, GoHGCrt Of action, he.
tween him and Others, Tor the unlawful purpose,
must be shown. And for this purpose il was
for the prosecutor tu give in evidence
the defendants deulaTatinna 10 others, enGOur.
aging the RESCUE before it was accomplished,
and Of his statements in the meeting at QbeTlln u
upon his retnn after the rescue.
What was said hy others, that were eDqaged in
the unlawful act, after the asscmbaae at Wei :
Ington had broken up and dispersed. is not
evidence against the defendant Accordingly
whnt Shepard and others said at the meeting Ia a
Oherlln on the evening of the 18th of Septem.
bor is excluded from your consideration, on the
ground, that it is incompetent testimony, q


The inquiry, them becomes important was Il
there concert Of action between the defendant a
and those actually engaged in the rescue uf the :
ugltivel If there was, the defendant is guilty J
~ much so, as If he had rendered manual ser
vice in the act.


The rule Of law is, that every one who enters 4
ntO common pITpOse or desigD ia deemed |