800 FUGITIVES FROM LABOUR. Fugitives from Labour. gress, then, may call that power into activity, for | so conferred on state magistrates, while a differ of ence of opinion exists, and may exist on this point, in different states, whether state magistrates are bound to act under it, none is enter. tained by the court, that state magistrates may, if they choose, exercise the authority, unless prohibited by state legislation. Ibid. slaves, and the duty to deliver them up, in what31. The right to seize and retake fugitive ever state of the Union they may be found, is, under the constitution, recognised as an absolute positive right and duty, pervading the whole Union with an equal and supreme force, uncontrolled and uncontrollable by state sovereignty or state legislation. The right and duty are coextensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulations and control, through however many states he may pass with the fugitive slave, in his possession, in transitu to his domicil. İbid. 26. The provisions of the sections of the act congress of 12th February, 1793, on the sub-fugitives from labour, is exclusive in the national 30. The power of legislation in relation to ject of fugitive slaves, as well as relative to fu- legislature. Ibid. gitives from justice, cover both the subjects; not because they exhaust the remedies which may be applied by congress to enforce the rights, if the provisions shall be found, in practice, not to attain the objects of the constitution; but because they point out all the modes of attaining those objects which congress have as yet deemed expedient and proper. If this is so, it would seem, upon just principles of construction, that the legislation of congress, if constitutional, must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it. For if congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere. When congress have an exclusive power over a subject, it is not competent for state legislation to interfere. Ibid. 27. The clause in the constitution of the United States, relating to fugitives from labour, manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain. Any state law or regulation, which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his services or labour, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much is he discharged from, but whether he is discharged from any, by the natural or necessary operation of the state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive right. Ibid. upon which the indictment against Edward Prigg, 32. The act of the legislature of Pennsylvania, for carrying away a fugitive slave, is founded, is unconstitutional and void. It purports to punish as a public offence against the state, the very act of seizing and removing a slave by his master, which the constitution of the United States was designed to justify and uphold. Ibid. of nations which requires a surrender of a fugi- pact. Ibid. made in a foreign sovereignty. Ibid. slave, in a free state, are recoverable only by 37. Notice that the coloured persons harbored be in writing by the claimant or his agent, nor or concealed are fugitives from labour, need not need it be given by either of them verbally. Ibid. knowledge. Ibid. such notice or knowledge, it must go to the jury 28. The constitutionality of the act of congress relating to fugitives from labour, has been affirmed by the adjudications of the state tribunals, and by those of the courts of the United States. If the question of the constitutionality of the law were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognitions would, in the judgment of the court, entitle the question to be considered at rest. Congress, the executive, and the judi- dence of harboring or concealing the fugitive. 40. The same principle applies to the evi ciary, have upon various occasions, acted this as a sound and reasonable doctrine. Cited, upon Ibid. Stuart v. Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheat. 204; Cohens v. The Commonwealth of Virginia, 6 Wheat. 264. Ibid. 29. The provisions of the act of 12th February, 1793, relative to fugitive slaves, is clearly constitutional in all its leading provisions; and, indeed, with the exception of that part which confers authority on state magistrates, is free from reasonable doubt or difficulty. As to the authority a fugitive from labour beyond the reach of his the negroes or otherwise, that they were fugitives ment of a certain reward, by the laws of Ken43. If the plaintiff was subjected to the pay Further Proof in Admiralty and Prize Causes. tucky, for the return of his slaves; and the defendant was the cause of his liability to such payment, it may constitute a part of the damages. Ibid. 44. Where the defendant has been the means of the entire loss of a slave, evidence may be received of the value of such slave, by showing what his services were worth, and as conducing to show that fact for what sum he might have been sold. Ibid. 45. The act of congress on the subject of fugitive slaves is constitutional. Ibid. 612. 46. It does not conflict with the ordinance of 1787. Ibid. FURTHER PROOF IN ADMIRALTY AND PRIZE CAUSES. 1. If the court below deny an order for further proof when it ought to be granted, or allow it where it ought to be denied, and the objection is taken by the party and appears of record, the appellate court can administer the proper relief. The Pizarro, 2 Wheat. 227; 4 Cond. Rep. 103. 2. But if evidence in the nature of further proof be introduced, and no formal order or objection appear on the record, it must be presumed to have been done by consent, and the irregularity is waived. Ibid. 3. Where an order for further proof is made, and the person disobeys or neglects to comply with its injunctions, courts of prize generally consider such disobedience or neglect as fatal to the claim. La Nereyda, 8 Wheat. 108; 5 Cond. Rep. 400. 4. Under such an order it is almost invariably the practice for the claimant, (beside other testimony,) to make proof by his own oath of his proprietary interest; and to explain the other circumstances of the transaction, and the absence of such proof and explanation always leads to doubt. Ibid. 5. If a neutral fraudulently attempt to aver and claim an enemy's interest in a prize court, he will not be permitted to introduce further proof to show his own neutral interest in the property. The Betsey and Cargo, 2 Gallis. C. C. R. 377. 6. Where the factors have been guilty of irregularity in not bringing in the papers, or the master of the captured vessel, further proof will be ordered. The London Packet, 1 Mason's C. C. R. 14. 7. It is a clear rule of public justice, enforced for the most obvious reasons, by prize courts, that a party shall not be trusted with an order for further proof, who has already shown himself capable of abusing it. The San Jose Indiana, 1 Mason's C. C. R. 38. 8. It is a relaxation of the rules of the prize court, to allow time for further proof in a cause where there has been concealment of material The Fortuna, 3 Wheat. 236; 4 Cond. papers. Rep. 244. 9. The captors are competent witnesses, upon an order for further proof, where the benefit of it is extended to both parties. The Anne, 3 Wheat. 435; 4 Cond. Rep. 286. 10. Suppression of papers, when it appears to have been intentional and fraudulent, and attended with other suspicious circumstances, is good cause for refusing further proof; but where it appears to have been owing to accident or mistake only, further proof will be allowed. The St. Lawrence, 8 Cranch, 434; 3 Cond. Rep. 202. 11. Where the affidavits, produced on the ordet for further proof, are positive, but their credibility is impaired by the nonproduction of letters mentioned in the affidavits, a second order for further proof will be allowed in the appellate court. The Frances, 8 Cranch, 348; 3 Cond. Rep. 158. 12. Where, on the preparatory examinations, the fact of capture is admitted, further proof ought not to be admitted to create doubts as to that fact. Further proof is never allowed to a party who shows himself in delicto. The Alexander, Gallis. C. C. R. 522. 13. In no case whatever is the court absolutely concluded by the original evidence. It is at liberty to entertain doubts extrinsic of such evidence, and to be satisfied of the verity of the transaction, by proofs drawn beyond the mere formal papers, and attestations of the parties. The Bothnea and The Janstoff, 2 Gallis. Ĉ. C. R. 78. 14. Further proof, inconsistent with that already in the case, was refused. The Euphrates, 8 Cranch, 385; 3 Cond. Rep. 182. 15. Where one, a total stranger to the shipment, and a mere volunteer, procures an assignment from the parties in interest, of the captured property, at his own risk and expense, it is a suspicious circumstance; the party is entitled to no favour in a court of prize, and the court will refuse him any opportunity to make further proof. Ibid. 16. Where the evidence is contradictory and ambiguous, the court may order further proof in a revenue or instance cause. The Samuel, 1 Wheat. 9; 3 Cond. Rep. 466. 17. Further proof will be allowed in the supreme court, where the national character and proprietary interest of goods recaptured, do not distinctly appear. Ibid. 18. Where the evidence is contrary or ambiguous, the court may order further proof, in a revenue or instance cause. The Schooner Adeline, 9 Cranch, 244; 3 Cond. Rep. 397. 19. If, upon the opening of a case, it appears to be one for further proof, it may be admitted instanter; unless the court shall be of opinion that the other party, not prepared to produce it instanter, ought also to be allowed to produce further proof. The Venus, 1 Wheat. 112; 3 Cond. Rep. 508. 20. If evidence, in the nature of further proof, be introduced, and no formal order or objection appear on the record, it must be presumed to have been done by consent, and the irregularity is waived. The Pizarro, 2 Wheat. 227; 4 Cond. Rep. 103. 21. The court are not satisfied that, unless under very special circumstances, it would be a Further proof in Admiralty and Prize Causes. safe or convenient rule to allow parties who have had the benefit of plenary proof, to have an order for further proof on the same points, after the case has been carried to the supreme court. The Dos Hermanos, 2 Wheat. 76; 4 Cond. Rep. 39. 22. In cases of fraudulent concealment or falsification of papers, a party will not be entitled to the benefit of further proof; for that is an indulgence granted only to honest mistake and unintentional error. The Liverpool Packet, 1 Gallis. C. C. R. 513. 23. It is the practice of the supreme court, in prize causes, to hear the cause, in the first instance, on the evidence transmitted from the circuit court; and to decide, upon that evidence, whether further proof shall be allowed. The London Packet, 2 Wheat. 371; 4 Cond. Rep. 162. 26. It is a relaxation of the rules of the prize court to allow time for further proof, in a case where there has been concealment of material papers. The Fortuna, 3 Wheat. 236; 4 Cond. Rep. 244. 27. The captors are competent witnesses upon an order for further proof, where the benefit of it is extended to both parties. The Anne, 3 Wheat. 435; 4 Cond. Rep. 286. 28. In cases of further proof, the affidavits of the captors are admissible, where any evidence on their part is admissible. The Sally, 1 Gallis. C. C. R. 401. 29. If the shippers in an enemy vessel omit to put on board any documentary evidence of the neutral character of their property, they will not be allowed the benefit of further proof. The Flying Fish, 2 Gallis. C. C. R. 374. 30. A deposition taken on further proof, in one cause, cannot be invoked in another. The Experiment, 4 Wheat. 84; 4 Cond. Rep. 398. 31. The practice in prize courts, is to confine the first hearing of the cause to the papers found on board the ship, and the preparatory examinations. If they acquit or condemn, in general, there is an end of the cause. If they present a case of doubt or difficulty, further proof is admissible; and this may either be by the common order for further proof, or the more solemn proceeding by plea and proof. The Ann Green, 1 Gallis. C. C. R. 274. 32. But further proof will be allowed, in the supreme court, where the national character and proprietary interest of goods recaptured, do not distinctly appear. The Adeline, 9 Cranch, 244; 3 Cond. Rep. 397. 33. In cases of further proof, the captors should be allowed their expenses. Ibid. 34. Goods appearing by the ship's papers to be a consignment from alien enemies to American merchants, were condemned, in toto, as prize, although_further proof was offered that American merchants were interested. On this point, further proof was refused. The Frances; Thompson's Claim, 8 Cranch, 335; 3 Cond. Rep. 154. 35. A bill of lading, consigning goods to a neutral, but unaccompanied by an invoice or letter of advice, is not sufficient evidence to en title the claimant to restitution; but it is a sufficient foundation for the introduction of further proof. The Friendschaft, 3 Wheat. 14; 4 Cond. Rep. 189. 36. The fact of invoices and letters of advice not being found on board, may induce a suspi cion that papers have been spoliated: but even if it were proved that an enemy master, carrying a cargo, chiefly hostile, had thrown papers overboard, a neutral claimant, to whom no fraud is imputable, ought not thereby to be precluded from further proof. Ibid. 37. Goods were shipped by a British house to an American house, partly in conformity with orders, and partly without, the consignee having the option to accept or reject the whole invoice, in a limited time. Further proof allowed. The Frances; Dunham & R.'s Claim, 8 Cranch, 354 ; 3 Cond. Rep. 164. 38. Further proof was ordered, when the question was the validity of the capture of the Grotius. One man only was put on board; the ship's papers, and the navigation of the vessel, being left to the master. The Grotius, 8 Cranch, 456; 3 Cond. Rep. 216. 39. If the cause labour under heavy doubts, if the conduct be not perfectly fair, or the char acter of the parties be not fully disclosed upon the papers before the court, the concealment or spoliation of papers, though it does not ordinarily induce a condemnation of the property, is made the ground of refusing farther proof to relieve the obscurity of the cause, and the fatal effects of a hostile taint follow on the denial. Livingston et al. v. Maryland Ins. Co., 7 Cranch, 506; 2 Cond. Rep. 589. 40. It is not a matter of course, for the supreme court to make an order for further proof, when the parties are fully apprized of the nature of the proof which their case requires, and have it in their power to procure it; an appellate court should not readily listen to such an application: but when it appears that the parties, who ask this indulgence, have pertinaciously withheld from the court, letters and other documentary testimony, which must be supposed in their possession, they come with a very ill grace to ask for any further time to make out their title. The St. Lawrence, 8 Cranch, 434; 8 Cond. Rep. 202. 41. Affidavits to be used as further proof, in causes of admiralty and maritime jurisdiction, in the supreme court, must be taken by commission. The London Packet, 2 Wheat. 371; 4 Cond. Rep. 162. 42. The evidence to acquit or condemn, must come, in the first instance, from the ship's pa pers, and the examination of the persons captured; where these are not satisfactory, further proof may be admitted, if the claimant has not Gaoler. Gaol Yard. forfeited his right to it, by a breach of good faith. | of such proof and explanation always leads to The Amiable Isabella, 6 Wheat. 1; 5 Cond. | considerable doubts. ̄Ibid. Rep. 1. 43. On the production of further proof, if the neutrality of the property is not established beyond reasonable doubt, condemnation follows. Ibid. 44. Further proof is never allowed to a party, who is guilty of fraud or illegal conduct; it is granted only to honest ignorance or mistake. The Sally, 1 Gallis. C. C. R. 401. GAOLER. 1. At common law it is not an escape in a gaoler to allow prisoners confined for debt the liberty of all the apartments within the gaol walls, for confinement within the walls is salva et arcta custodia. Query, Whether it be an escape to allow such prisoners the liberty of the prison limits. Steere v. Field, 2 Mason's C. C. R. 486. 2. It is an escape in the gaoler to make a prisoner for debt a turnkey, and to entrust him with the keys of the outer doors, as well as inner doors, at all times by night and by day. Ibid. 45. The court will not, however, exercise its discretion in cases liable to no just suspicion; but will content itself with an adherence to an ordinary course, unless there arise some doubt upon the original papers, or some stringent evidence from an extrinsic source. In cases of reasonable doubt, it will admit the claimant to further proof, where his conduct appears fair, and is not tainted with illegality. It is more sparing 3. If the gaoler be committed to his own gaol, in its indulgence to captors, from a solicitude to on execution, by the sheriff, and no new keeper avoid complex proceedings and collateral inqui- is appointed, it is an escape of the gaoler, for ries: it therefore rarely allows it to captors, which the sheriff is accountable; but it is not an where the transaction appears unsuspicious upon escape of the other prisoners, if they are in fact the preparatory evidence. It will, however, al-kept in custody under the gaoler's authority or low it, where strong circumstances or obvious his agents. lbid. equity require it. But, in all such cases, it is admissible only under the special direction of the court; and such direction can never be obtained, where there has been gross misconduct or fraud, or the case does not admit of a fair explanation on behalf of the captors. The Jahnstaff, 2 Gallis. C. C. R. 78. 46. Where a shipment is made to a firm, and the persons who compose it do not appear, further proof will be required of the names and domicil of the parties. The Joseph, 1 Gallis. C. C. R. 545. 47. By the rules of the prize court, the onus probandi of a neutral interest rests on the claimant. The evidence to acquit or condemn, must come, in the first instance, from the ship's papers, and the examination of the captured perBons. Where these are not satisfactory, further proof may be admitted, if the claimant has not forfeited his right to it by a breach of good faith. On the production of further proof, if the neutrality of the property is not established beyond reasonable doubt, condemnation follows. The Amiable Isabella, 6 Wheat. 77; 5 Cond. Rep. 1. 48. If a neutral fraudulently attempt to cover and claim an enemy's interest in a prize court, he will not be permitted to introduce further proof to show his own neutral interest in the same property. The Betsey, 2 Gallis. C. C. R. 37. 49. Where an order for further proof is made, and the party disobeys, or neglects to comply with its injunctions, courts of prize generally consider such disobedience or neglect as fatal to his claim. Ibid. 4. In Rhode Island, the doctrine as to escape is that of the common law; and the statutes giving the liberty of the limits to prisoners, on giving bonds not to escape, &c., have not altered the common law. Ibid. 5. The liability of the securities for an escape is not coextensive with that of the sheriff; as it regards the latter, a prisoner on the limits is supposed to be in his immediate custody, and the escape of an insane prisoner, therefore, is as much a negligent escape as any other; and he is not allowed to excuse himself when he might so easily collude or be imposed upon. But there is no analogy in these respects between a sheriff and the sureties. Hazard v. Hazard, Paine's C. C. R. 295. GAOL YARD. 1. The act of congress of 1800, ch. 4, is not that by which the liberties of the gaol yards allowed to debtors imprisoned on execution issu ing from the courts of the United States are now regulated. United States v. Knight, 3 Sumner's C. C. R. 358. 2. The act of 1828, ch. 68, has adopted the state laws on the subject of gaol liberties, then existing in the states, under the words of the third section, which declare "that writs of execution and other final process issued on judg ments and decrees rendered in any of the courts of the United States, and the proceedings thereupon shall be the same, &c., as are now used in the courts of such state, &c. &c. Ibid. 3. Query, Whether, at the common law, it is 50. Upon such an order, it is almost the inva- an escape of a debtor imprisoned on execution, riable practice for the claimant (besides other for the sheriff to allow him the liberties of the testimony) to make proof by his own oath of gaol yard, or whether the sheriff is bound to his proprietary interest, and to explain the other keep him in salva et arcta custodia, within the circumstances of the transaction; and the absence ❘ walls of the gaol itself? Ibid. Garnishee in an Attachment.-General Average. GARNISHEE IN AN ATTACHMENT. property shall remain in his power. The rea 1. A judgment debtor is not liable to be at- be, that if the officer leaves the property in pos sonable construction of the act would seem to tached as a garnishee, under the foreign attach-session of the garnishee without security, he is ment act of Rhode Island. Franklin v. Ward et himself answerable for the forthcoming, and is al., 3 Mason's C. C. R. 136. the effects. the mean time he retains the power to remove must be virtually his possession; and thus the The possession of the garnishee power of the officer over the attached effects which the law requires, would be preserved. Brashear v. West et al., 7 Peters, 621. 2. Under the foreign attachment law of Pennsylvania, a foreign attachment may be laid on property in the hands of the plaintiff in the attachment. Graigle v. Nottnagle & Montmollin, Peters' C. C. R. 345. ment consented to the sale of the property at8. Where the plaintiffs in a foreign attachtached, and the same was sold by the garnishee, who received the proceeds of the sale, and afterwards became insolvent, and thus a total loss of the property and the proceeds was produced, the supreme court held that the plaintiffs in the attachment were legally responsible to the de fendant in the attachment. Pennsylvania. Ibid. 622. tached as a garnishee, under the foreign attach9. A judgment debtor is not liable to be atment act of Rhode Island. Franklin v. Ward, 3 Mason's C. C. R. 136, 3. The forms of proceeding under the foreign attachment laws of Pennsylvania are as follow: -They commence with the ordinary writ of attachment, which is served on the goods and chattels of the debtor in whose hands soever or possession the same may be found, or upon any person who may be indebted to the defendant in the attachment. Upon the return of the writ, the garnishee is to enter an appearance, which is generally by attorney, unless a clause of capias has been inserted in the writ, in which case he must give bail for his appearance. Judgment by default is then entered against the defendant at the third term, as a matter of course. After this a scire facias issues against the gar nishee, to show cause why the plaintiff shall not have execution against him, of the defendant's property attached in his hands. To this writ the garnishee may plead the general issue, nulla bona, or any special matter tending to show that the effects in his hands, or the debt due by him, ought not to be condemned. found against the garnishee, or if he should not If the issue is appear and plead, judgment is rendered against him. In aid of this process, the plaintiff may compel the garnishee to answer on oath to inter-value, and not the cost estimated at so much per 2. The actual cost of repairs at their true rogatories to be propounded to him, calculated milrea in a depreciated currency, is the rule by to draw from him a discovery of the property of which the underwriters are to pay for the repairs. the defendant he may have in his hands, and Ibid. of the debts which he may owe him. Ibid. 346. 4. In proceedings of foreign attachment against lands in Pennsylvania, there is no garnishee, and execution goes against the lands. Ibid. 5. Judgment in a trustee process against the defendant as a garnishee of the plaintiff, is no defence in a suit for the debt, if the plaintiff in the original trustee process, has by his neglect to comply with the local laws, put his judgment in a state of suspension, so that execution can no longer issue upon it, and it cannot be revived by a scire facias. Flower v. Parker, 3 Mason's C. C. R. 247. 6. Where an attachment is laid on money in the hands of a third person, interest ceases from the time of the attachment until it is dissolved; but when a debtor, who is also a creditor, lays an attachment in his own hands, interest is chargeable during the continuance of the attachment, Willings v. Consequa, 1 Peters' C. C. R. 301. 7. The language of the foreign attachment law of the state of Pennsylvania, seems to require that the specific property attached should be taken into possession by the officer, unless the garnishee will give security therefor. At ill events, the law provides, positively, that the GENERAL AVERAGE. neral average is ascertained by a deduction of 1. The contributory value of freight to a geThe Union Insurance Co., 3 Mason's ̊C. Č. R. one-third of the gross freight. Humphreys v. 429. 3. In an insurance on cargo composed princioranges were lost on the voyage by perils inpally of lemons and oranges, if the whole of the sured against, and the lemons are saved, and of the oranges, under the usual memorandum, arrive, the underwriter is not liable for the loss which warrants the underwriter free from particular average on fruit, &c. Ibid. taining the common printed memorandum, "salt, 4. In an action on a policy of insurance, conwheat, &c., are warranted free from average under five per cent., unless general," and in which there was likewise an additional written clause, and sugar) should be free of average under ten per providing that "the goods insured (being cotton cent. ;" it was held that the clauses were inconsistent; but that the written clause should be considered as expressing the actual understanding of the parties, and that the goods were exempted from all average losses, whether general or particular, under ten per cent. Costor v. The Phanix Insurance Co., 3 Wash. C. C. R. 51. the introduction of the clause concerning memo5. Whatever may have been the motive for randum articles in a cargo, into policies of insurance, which was done as early as the year 1749, and most probably with the intention of protecting insurers against losses arising solely from the |