The Cleveland Daily Herald

Cleveland, May 11, 1859

The Rescue Case – Trial of Langston.


The United States,


Charles Langston

Willson, Judge.

      The defendant, Charles Langston, is indicted for rescuing a fugitive slave, alleged to be the property of John G. Bacon, of Kentucky. His plea is not guilty, and it is upon the issue made by this plea that you are sworn to return a verdict according to the evidence.

      There is, perhaps, no severer test of a jurorŐs integrity, or a greater demand upon his impartial judgment than when called upon to act in a case where political partialities or prejudices are invoked to sway his conduct. The very nature of our Federal system is such that all men become more or less interested in the legislative policy of the Government. This has resulted in political organizations, in which, at different periods, the great masses of the people have been arrayed in parties, antagonistic to each other, and often characterized by strong prejudices and bitter animosities. Hence congressional legislation often becomes distasteful to a portion of the people of the country. It is so at the South with reference to laws enacted to suppress the slave trade, and peculiarly so at the North with reference to the fugitive slave law of 1850. Yet ours is a representative Government where the people themselves control its legislation. It is indispensable to good order and to the well being of society, that acts of Congress placed upon the statute book, should command obedience, and that partisan feeling should cease and prejudice be forgotten in the observance of the law. Courts and juries especially are bound to impartially administer and enforce the laws, and this sacred obligation is imposed with the most solemn sanctions.

      It is the first duty of Juror, who is sworn to determine the guilt or innocence of one charged with crime, to divest himself of any and all prejudice he may have against the law itself, or of any partiality or ill will he may have towards the accused. It is enough to know that the law alleged to be broken is the law of the land, and that the accused is presumed to be innocent until his guilt is proved. A jury that yields to any other influences than those legitimately produced by the law and the testimony, is recreant to its trust, and unworthy of occupying the seats of twelve honest men.

      This caution is given, gentlemen, not because it is feared that you will intentionally swerve from a true and just line of duty, but simply that you may guard and brace yourselves against any undue influences, while considering and weighing the evidence in the case.

      What then is the case you are sworn to try and what are the material facts necessary for the Government to establish in order to work a conviction of the defendant?

      The indictment is predicated upon the 6th and 7th sections of the Act of Congress approved Sept. 18, 1850. You have already become familiar with the provisions of this statute and a more minute reference to this law is unnecessary.

      This indictment contains two counts. The second having been substantially abandoned by the prosecutor, it is only necessary to call your attention to the first.

      The first count charges that the negro in question was a slave owing service to John G. Bacon in Kentucky. That said negro escaped from Kentucky into the State of Ohio and was a fugitive from his owner – that he was seized and held by Anderson Jennings and his assistants in Ohio, by virtue of a power of attorney lawfully executed and acknowledged by said Bacon, authorizing the capture of the fugitive; and that the defendant acting with others at Wellington in this District, unlawfully, knowingly and willingly rescued the slave from baconŐs agent and Attorney.

      You will call to mind the evidence pertinent to the first of these allegations.

      Is it proved that the negro, John, owed service to John G. Bacon in Kentucky?

      The existence of slavery in Kentucky as a municipal regulation, is a question of law, which belongs solely for the consideration of the Court; and for the purposes of this trial you will regard slavery or involuntary servitude as recognized and lawfully established in that State.

      Whether the relation of master and slave existed between Bacon and the negro John, is a question of fact to be ascertained by the jury, from the testimony; and this may be established by the Government according to the same rule of evidence that obtains in other contests about the right in personal property.

      The general rule of law is that the proof of the actual possession of such property, accompanied with the claim of ownership is sufficient to establish the prima facie right of ownership. – It is like any other question of status of the relation of one person to another, which may be shown by the facts and circumstances attending that relation, - as for instance, that of husband and wife, parent and child, &c. It is not necessary to trace the pedigree of this negro through a maternal ancestry of slaves, nor is it necessary to prove that he was held by deed or contract of purchase, or that the ownership was acquired by inheritance.

      If Bacon exercised that control over him which is ordinarily done in Kentucky by a master over his slave, and if the negro had the usual marks of African descent and was held as a slave and treated as such by his alleged master, the proof of these facts, if uncontradicted, establishes the allegation in the indictment, that the negro John was held to service s the slave of John G. Bacon under the laws of the State of Kentucky.

      That this negro escaped into Ohio and was a fugitive from Kentucky is not seriously questioned.

      But it is objected by the counsel for the defendant that there is a fatal variance in the proof from the allegation in the indictment; as to the time of the escape, the allegation being that he left his master on the first of March, 1857, and the proof showing his departure from Kentucky to have been early in January, 1856.

      This is not a descriptive averment, nor is the date an essential ingredient in the crime charged to have been committed, to wit: the unlawful rescue. If the precise day of a fact be a necessary ingredient in the offence, it unquestionably must be truly stated. But when the fact is mere inducement to the offence, the time is immaterial. Such is the case here. And hence it is sufficient to prove the escape at any time previous to the actual commission of the offence charged in the indictment.

      It is also objected that the Power of Attorney, under which Jennings acted, was defective in its execution and acknowledgment, and that it is consequently void.

      If the Power of Attorney, which has been produced in evidence, was lawfully executed and acknowledged in Kentucky, where it was made, it is valid and effectual in Ohio to accomplish the purpose for which it was given.

      It is not essential to the validity of a power of attorney in Kentucky that it should be sealed by the party giving it, unless it was executed for the purpose of authorizing the conveyance or incumbrance of real estate, or of mixed property.

      We are also satisfied that the acknowledgment was valid in law. It is sufficient that the acknowledgment appears to be taken before a legal officer of the Mason County court, certified to be in due form of law and authenticated by the seal of that court. The Clerk, Cochran, was a legal officer of that court. By virtue of the powers conferred on him by the Mason County court, that he was authorized to do the act, the seal of that court, was, by legal implication his seal to authenticate such official act. It is not competent to go behind this authenticated act of an officer of a court of record. The language of the statute is, Ňacknowledged and certified under the seal of some legal officer or court.Ó The objection that the signature of the clerk was made by his deputy is not deemed to be important. It is the seal of the court, which authenticates the act of acknowledgment; and hence the point is not involved as to the authority of the clerk to delegate to a deputy the power of doing an official act, which devolves upon him personally. This is the doctrine of the case of Smith vs. U.S. 5 Peter, 302.

      You will, therefore, regard this power of attorney, if executed by Bacon, as valid in law, and effectual to accomplish the purpose for which it was given.

      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 the power of attorney, the statute provides that he Ňmay pursue and reclaim the fugitive either by procuring a warrant from some one of the courts, judges, or commissioners (named in the act) for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, when the same can be done without process, and by taking or causing such person to be taken forth with before such court, judge,Ó &c.

      The fugitive may be seized and held upon the warrant, or by virtue of the power of attorney. Both modes of capture and detention 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 detention. The agent may himself take the fugitive before the judge or commissioner, or he may cause 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 conferred upon the agent by virtue of the power of attorney. The Marshal in executing the warrant may act under the direction of the agent, and in the matter of holding the fugitive when so arrested, the agent has complete control over the whole subject, and may unquestionably, set the fugitive at liberty before the return of the writ.

      It is not the case of the execution of process, emanating from different and conflicting jurisdictions. In such a case, the officer first making the seizure has, by virtue of his process, exclusive control and possession of the thing seized. Under this Statute, it is clear, that the warrant is auxiliary to the power of attorney.Ó

      If then the proof shows, that at the time of the rescue at Wellington, Jennings and Lowe had a joint control over the fugitive, the former in virtue of a good and sufficient power of attorney for his reclamation, and the latter assisting him as the agent of the owner of the slave, by means of a warrant or other wise, such proof sustains the allegation in the indictment, that said negro was in the custody and under the control of Anderson Jennings as agent and attorney of John G. Bacon, together with one Jacob K. Lowe, then and there lawfully assisting him in the custody and control of the said negro slave called John.Ó

      I have been thus explicit upon this point, because it is one that has been the subject of much discussion by Counsel, and because it was proper that the instructions given to you upon it 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 escaped from Bacon, there still remains the all-important enquiry in the case, did the defendant unlawfully, knowingly 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 a fugitive from labor, and was lawfully held by 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 exercising ordinary prudence.

      It is claimed by the prosecutor that this knowledge, on the part of the defendant, is established by the positive testimony of Jennings, Lowe and others, and that upon this point the proof permits of no doubtful inference or conjecture.

      It is asserted, (and whether truly or not is for you to determine from the evidence,) that Lowe as deputy Marshal, acting under the direction of Jennings and in virtue of a CommissionerŐs warrant, seized and arrested the fugitive near the village of Oberlin; that he conveyed the slave to Wellington and there surrendered the principal control over him to the authorized agent of the owner, and thereafter acted in subordination 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 the authority by which he was captured and held.

      But the defendant contend that notwithstanding the proof may show his knowledge of the servitude due fro the negro to Bacon, his master, and of the authority by which he was held, that yet, it fails to establish the defendantŐs guilt as a participator in the rescue charged in the indictment. And it is further insisted, in view of all the evidence in the case, that on acquiring the knowledge that the negro was a slave and lawfully held, the defendant not only abstained from the commission of any unlawful act himself, but was in fact really active and sincere in persuading others to a peaceful course of conduct, and to a faithful observance of the law.

      In regard to the legal implication of the defendantŐs guilt and his complicity in the rescue of the fugitive charged in the indictment, the instructions of the Court, given on a former occasion, may properly be repeated here, as they annunciated the principle of law which is deemed to be applicable to this branch of the case.

      If the persons who constituted the assemblage at Wellington on the 13th of September, 1858, had come together for the purpose, or when there were engaged in rescuing a fugitive slave from those authorized to capture and hold him under the laws of 1850, they were engaged in an unlawful act, and whatever was said and done by one in the prosecution of the enterprise, were, to all intents and purposes, the declarations and acts of all. But to charge one, against whom there is no specific proof, of things done by him, with what was done and said by others in the prosecution of the unlawful enterprise, concert of action, between him and those others, for the unlawful purpose must be shown. And for this purpose it was competent for the prosecutor to give in evidence the defendant declarations to others, encouraging the rescue before it was accomplished, and of his statements in the meeting at Oberlin, immediately upon his return after the rescue. What was said by others, that were engaged in the unlawful act, after the assemblage at Wellington had broken up and dispersed, is not evidence against the defendant. Accordingly what Shepherd and others said at the meeting at Oberlin on the evening of the 13th of September, is excluded from your consideration, on the ground, that it is incompetent testimony.

      The enquiry, then, becomes important: was there concert of action between the defendant and those actually engaged in the rescue of the fugitive. If there was, the defendant is guilty, and as much as, as if he had rendered manual service in the act.

      The rule of law is, that every one who enters into a common purpose or design, is deemed a party to every act which had before been done by the others, without regard to the time in which he entered into the combination, and also a party to every act which may afterwards be done by any of the others, in furtherance of such common design. This concert of action, on the part of the defendant with the rescuers, if it existed at all, is to be determined by his declarations and conduct. If he advised and urged others into the commission of the unlawful act, he made their conduct his own in effecting the rescue. He thereby acted in concert with them in the common design, to wit, the rescue of the slave.

      It is contended by the counsel for the Government, that the defendant, by his words and conduct, evinced a determined (though cautious) purpose of effecting the escape of the fugitive in violation of law. That his pretensions for suggesting a resort to the forms of law, was but another more subtle and effectual mode of accomplishing the rescue; and his urging the constable to serve the State warrant against Jennings and his assistants for kidnapping the negro, after being informed of his lawful capture, is claimed as conclusive of the defendantŐs complicity in the rescue.

      In a free State like Ohio, every human being in it, whether white or black, is presumed to be free until a different status is shown. And hence when one is restrained of his freedom by another, a resort to the ordinary forms of proceeding under the State laws, to enquire into the cause of such restraint or imprisonment, implies no wrong. But when a fugitive from labor is captured and held in any of the modes and under the authority designated by the act of Congress of 1850, any interference by the State authorities has no justification, nor can those be justified who invoke their interference, when they know the fugitive is thus held.

      If Jennings seized and held the fugitive by virtue of a good and sufficient power of attorney executed for that purpose and was lawfully assisted by Lowe, the Justice of the Peace at Wellington, who issued a State warrant against them for kidnapping such fugitive, was acting in a matter over which he had no jurisdiction. And if the defendant was informed and had knowledge of this condition of things and afterwards urged the execution of the warrant for the purpose of liberating the fugitive, his conduct in this particular implicated him as much in the common design of the mob as if he had given his aid to the rescue by physical force.

      What the defendant said and what he did, in relation to the rescue, has been detailed in the testimony of various witnesses, and this testimony had been so minutely brought to your attention by the counsel on both sides, as to require no further recapitulation.

      I have throughout regarded it as an acknowledged fact (and so conceded by the defendantŐs counsel) that an unlawful rescue of the negro was made. For, in legal contemplation, it matters not whether he was released from capture by the manual force of the mob, or whether that release was effected by threats and demonstrations of violence. It would be an unlawful rescue as much in the one case as in the other.

      With these rules of law for your government, gentlemen, the case is now committed to your hands. Treat it as you would any other case involving the question of the guilt or innocence of a man charged with a criminal violation of the law. All matters of fact in this controversy are exclusively for your consideration. And if from a careful and impartial review of the proofs, you come to the conclusion, beyond a reasonable doubt, that the defendant is guilty of the offence charged, you will say so by your verdict. But if the proof fails to produce that conviction upon your minds, you will return a verdict of acquittal.