dead. If your judgment shall be swayed at all by sympathies so wrong, although so natural, you will find the saddest hour of your life to be that in which you will look down upon the grave of your victim, and "mourn with compunctious sorrow" that you should have done so great injustice to the "poor handful of earth that will lie mouldering before you."

I have been long and tedious. I remember that it is the harvest moon, and that every hour is precious while you are detained from your yellow fields. But if you shall have bestowed patient attention throughout this deeply interesting investigation, and shall in the end have discharged your duties in the fear of God and in the love of truth justly and independently, you will have laid up a store of blessed recollections for all your future days, imperishable and inexhaustible.

NOTE. As has been already stated, a verdict of guilty was rendered, and the prisoner was sentenced to be hanged. But Mr. Seward's efforts to prevent the execution of a demented maniac did not end here. He appealed to the governor for a pardon, with what success the following correspondence will show:

DEAR SIR.-William Freeman, a of death for the crime of murder.

AUIURN, August 17th, 1846. negro, lies in the jail of this county under sentence I acted as his counsel on the solicitation of humane

persons who believed him insane. I believe him absolutely and hopelessly insane, sinking from monomania into dementia. I believe he was a lunatic, and committed his crimes under the influence of an insane delusion. Thus believing, it seems to be a duty to appeal to you for pardon to the convict. The grounds of my opinion are the same which were submitted to the jury and overlooked by them. I beg leave, therefore, to transmit herewith a copy of my argument on the trial. You will, of course, know what allowance should be made for my prejudices and my zeal as counsel, and will know how much confidence ought to be reposed in the verdict of the jury. My own duty is finished when I express to you my sincere conviction of the truth of the plea which I unsuccessfully maintained. Fully believing that the subject will engage your most dispassionate consideration, I have the honor to be Your Excellency's most obedient servant,

His Excellency SILAS WRIGHT, Governor, &c.

WILLIAM H. SEWARD.

EXECUTIVE CHAMBER. Albany, 7th September, 1846.

1846.}

DEAR SIR,-On my return to the city on the 22d ult., I found your letter of the 17th, relating to the case of William Freeman, and the coy of your printed argument which accompanied the letter. A large share of my time, since my return, has been devoted to the examination of the reports from the judge, and the other papers connected with the case, and I have come to the conclusion, that there is nothing in the testimony to warrant me in overruling the verdicts of the two juries, finding the fact of sanity. The case is a painful one in every aspect of it, and yet it would have been pleasant to my feelings to have found it in my power, consistently with my sense of duty, to have saved this man from the awful fate impending over him. I read your argument with attention and deep interest, but I did not find in it matter to obviate the force of the testimony upon the other side and the verdicts of the two juries. I am very respectfully, &c., SILAS WRIGHT.

His Excellency WILLIAM H. SEWARD, &c. &c.

Mr. Seward's next appeal was to the Supreme Court for a new trial, which was granted. The death of Freeman, however, relieved him of further labor in the case.-ED.

FUGITIVE SLAVES.*

MAY IT PLEASE THE COURT,

The defendant moved in the Circuit Court for a new trial on the ground of ERRONEOUS INSTRUCTIONS given by the court to the jury.

The defendant moved also an arrest of judgment on the ground of the INSUFFICIENCY OF THE DECLARATION.

On hearing these motions, the judges of the Circuit Court required instructions from this august tribunal, upon eight questions which arose on the former motion, to wit:

First. Whether under the fourth section of the act of February 12, 1793, the notice must be in writing, given by the claimant or his agent; must contain a statement that the person harbored or concealed is a fugitive from labor, within the meaning of the third section of the statute, and must be served on the person who harbors or conceals the alleged fugitive.

Second. Whether such notice, if it be not in writing, and it be not served in the manner before mentioned, must be given verbally, by the claimant or his agent, to the person who harbors or conceals the alleged fugitive, or whether a general notice in a newspaper to the public is necessary.

Third. Whether clear proof, by the confessions of the defendant or otherwise, that he knew the colored person harbored or concealed was a slave, and was a fugitive from labor, is not sufficient to charge the defendant with notice; although he may have obtained such knowledge from the slave, or in any other manner.

Fourth. Whether the facts that the defendant received, from another person, the fugitive from labor at three o'clock in the morning, in the State of Ohio, twelve miles from the place in Kentucky where he was held to labor, and transported him in a closely covered wagon, twelve or fourteen miles, so that he escaped from pursuit and his services were thereby lost to his master, do not constitute an act of "harboring," or of " concealing" the fugitive within the meaning of the statute.

*This action was brought in the Circuit Court of the United States, for the district of Ohio, by Wharton Jones, of Kentucky, against John Van Zandt, of Ohio, to recover a penalty of five hundred dollars, for harboring, and concealing, Andrew, the plaintiff's slave, in violation of the act of Congress, 1798. The jury, under the charge of the court, rendered a verdict for the plaintiff. The defendant moved for a new trial, and an arrest of judgment. The cause came into the Supreme Court of the United States in December. 1847, on a certificate that the judges of the Circuit Court were divided in their orinions upon the questions stated in the argument. Counsel for the plaintiff, JAMES T. MOREHEAD, of Kentucky. Counsel for the defendant, WILLIAM H. SEWARD, of New York, and S. P. CHASE, of Ohio.

Fifth. Whether such transportation, with the circumstances thus mentioned, is not "harboring" or "concealing" within the meaning of the statute, although the fugitive should be recaptured by his master.

Sixth. Whether such transportation, in an open wagon, whereby the services of the fugitive are entirely lost by his master, is not harboring the slave within the statute.

Seventh. Whether a claim of the fugitive upon the person who harbors or conceals him, must precede or accompany the notice.

Eighth. Whether any overt act of a character so marked as to show an intention to elude the vigilance of the master, or his agent, and calculated to effect that object, is harboring the fugitive within the statute.

The judges of the Circuit Court require also instructions upon six questions which arose upon the motion in arrest of judg

ment.

First. Whether the first and second counts in the declaration contain sufficient averments that Andrew, the colored man, escaped from the State of Kentucky into the State of Ohio.

Second. Whether said counts contain a sufficient averment of notice, that Andrew was a fugitive from labor.

Third Whether the averments in those counts, that the defendant harbored Andrew, are sufficient.

Fourth. Whether those counts are otherwise sufficient.

Fifth. Whether the act of February 12th, 1793, is repugnant to the Constitution of the United States.

Sixth. Whether that act is repugnant to the ordinance of Congress of July, 1787, entitled," An Ordinance for the government of the territory of the United States, northwest of the Ohio."

I humbly beg leave to submit my views upon these questions, under four propositions:

FIRST. THE DECLARATION IS INSUFFICIENT.

SECOND. THE EVIDENCE WAS IMPROPER AND INSUFFICIENT. THIRD. THE ACT OF 1793, SO FAR AS THE PRESENT SUBJECT IS INVOLVED, IS VOID, BECAUSE IT VIOLATES THE ORDINANCE OF 1787. FOURTH. THE ACT OF 1793 CONFLICTS WITH THE CONSTITUTION OF THE UNITED STATES, AND IS THEREFORE VOID.

Thus my argument, which begins in the mazes of special pleading, will conduct us through a portion of the interesting field of the law of evidence, and bring us, at last, into the wide domain of constitutional law. If I should fail by the way, I hope it may be remembered, for my excuse, that an imperative duty commanded me to undertake so long and difficult a journey.

FIRST. THE DECLARATION IS INSUFFICIENT.

Because, first, neither count sufficiently charges the defendant with notice that Andrew was a fugitive from labor.

Secondly. It is not sufficiently averred that Andrew was held to labor or service to the plaintiff in Kentucky, by the laws thereof, and escaped and fled from that state into Ohio.

VOL. 1-31.

Thirdly. It is not sufficiently averred, that the defendant harbored or concealed the fugitive.

FIRST. It is not charged, in either count, that the defendant had notice before the alleged harboring or concealment, that Andrew was a fugitive from labor.

The substance of the statute may be briefly stated as follows:

SECTION 3. "When a person held to labor in any state or territory, under the laws "thereof, shall escape into any other state or territory, the person to whom such labor is due, or his agent, or attorney, may seize or arrest the fugitive."

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SEC. 4.

If any person shall, knowingly and willingly, obstruct, or hinder, such claimant, or his agent, or attorney, in thus seizing and arresting the fugitive, or shall HARBOR OR CONCEAL SUCH PERSON, AFTER NOTICE that he or she is a fugitive from labor, as aforesaid, he shall, for either of the said offences, forfeit and pay the sum of five "hundred dollars."

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The offence pretended in the declaration is, what is created by the second clause of the 4th section, and consists in "harboring," or "concealing" a fugitive from labor, after notice received that the person thus protected has escaped from labor, to which he was held by a law of the state, from which he fled.

His Honor, the presiding Judge of the Circuit Court, [MoLEAN,] held, that positive, direct, and formal notice was not necessary; and that knowledge possessed by the defendant, however obtained, was equivalent to such notice, or a substitute for it. Such a construction of the statute is obviously necessary to support this declaration. But this construction relieves this penal statute against liberty and humanity of a condition favorable to both, expressly and emphatically declared. A person shall not forfeit and pay five hundred dollars for merely harboring or concealing a fugitive. Such protection and hospitality shall not subject the offender to punishment, even though knowingly and willingly rendered. He may harbor the slave, and conceal him from his pursuers, as the law of nature commands, until after notice that the master forbids. The words AFTER NOTICE are strongly contrasted, in this clause of the section, with the previous words knowingly and willingly, in another part of the same section. The word after gives precision. It is not with knowledge, or even with notice, but after notice. And this form of expression raises the notice prescribed, up to the dignity of a condition precedent of the crime.

If NOTICE be a condition precedent, then the notice must be explicit, certain, direct and comprehensive. Such notice is capable

of being averred. No such notice is averred; or, at least, none such is described.

The learned Judge held that, as a general principle, when the law speaks of notice, it does not contemplate a notice in writing, unless it be required by statute, by commercial usage, or by the practice of courts. He held also, as a general principle, that knowledge is equivalent to notice. But I humbly submit that these general principles, however true, are never applied in construing penal statutes. Legal conditions may be dispensed with for equivalents, to promote the ends of justice in civil controversies; but they cannot be waived when they are barriers, erected for the protection of the accused.

Wisdom and humanity are manifested in this condition precedent of notice, as contrasted with mere knowledge. For he who obstructs, or hinders a master in the act of recapture, does, what under the law of slavery, is a palpable private wrong, and commits a breach of the peace. But harboring and concealing a weary and fainting slave, though known as a slave, is not injurious, and does not disturb society. Under no law can this act be deemed immoral; and in most cases it would be charitable. It can only become an offence when persisted in after notice. The Constitution provides only for the surrender of fugitives when claimed, and the law, following the Constitution, forbids the freeman to harbor the slave, only after notice of a design, or purpose to reclaim. If there be no such effort or design, it is as lawful, and as humane to harbor the slave, as to entertain a fellow freeman. But the construction of the learned Judge makes the Congress of the United States interdict protection, hospitality, and charity to the slave, whom no master pursueth, and commands the citizen to shut out the wandering fugitive who may be perishing at his gate. This would be injurious to the master, as well as inhuman toward the slave. If he be left to die, his services will be lost; but if he be harbored and revived, he will be in a condition to be reclaimed.

Nor is the principle that mere knowledge, however acquired, is equivalent to direct notice at all as general, even in commercial law, as is supposed. In an action against the indorser, or drawer of a bill of exchange, if the plaintiff do not aver in the declaration a demand of payment at the proper time, on the drawee or acceptor, or omit to allege due notice to the defendant, of refusal of