USA > Indiana > St Joseph County > History of St. Joseph County, Indiana > Part 61
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HISTORY OF ST. JOSEPH COUNTY.
which they resided at the time of their abduction, and were laboring hard to pay for it.
A petition for a writ of habeas corpus was drawn up, and signed, and sworn to, by Mr. Mandlin, setting forth that Mrs. Powell and Lewis Powell (as Mr. Maudlin did not then know with certainty how many of the family had been taken) were deprived of their liberty by some person whose name was unknown, under pretense that they were fugitive slaves, averring that he verily believed they were free persons. On this petition the Hon. Elisha Egbert, Pro- bate Judge of St. Joseph county, who was authorized by a special statute to issue and try writs of habeas corpus, ordered that writ to issue. It was issued accordingly by the clerk, and placed in the hands of Russell Day, Deputy-Sheriff, for service. Mr. Day, learning that the Kentuckians were armed, called upon several citi- zens to accompany him in serving the writ. In the meantime the report having spread about that a party of kidnappers with their captives were in the vicinity, the whole town was aroused, and the people, in a high state of excitement, were running about, anxiously inquiring into the matter. The deputy sheriff with his company overtook the Kentuckians about one mile south of the town, where they had stopped in the bushes to feed their horses. They were all well armed, making quite a display of their weapons, and evincing at first a disposition to resist all legal proceedings. The writ was served by reading, and after considerable parley, in which they were made to understand most distinctly that they could not proceed without a fair trial of their claims, they at last consented to go back to town and proceed to trial on the writ. By this time about thirty or forty persons had arrived from town, two of whom brought guns, but no attempt to use them was made. A Mr. Frazier, with a gun in his hand, was met by Mr. Crocker, and told by him to put up his weapon, as it was no place for such things. Some of the citizens carried walking canes, but no force was used toward the Kentuckians, though the people were in a high state of excitement. Norris and his party at last drove back to town with their captives, followed by the Sheriff and the people. In the meantime a new writ of habeas corpus had been procured, directed to Mr. Norris, whose name had been ascertained, for all four of the captives, which was served npon him as soon as he arrived in town, the first writ having been dismissed. At the request of Norris, the deputy sheriff placed the captives in jail, until he could procure counsel. In a short time he procured the services of Messrs. Liston and Stanfield, two of the ablest lawyers in Northern Indiana, to conduct his de- fense. Messrs. Deavitt and Crocker appeared on behalf of the captives. Norris and his counsel appeared before the judge, who held his court in the conrt-house, and asked for time to enable them to prepare their defense, which was readily granted. After about an hour or more they again appeared, and made a return to the last writ of habeas corpus, sworn to by Mr. Norris.
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HISTORY OF ST. JOSEPH COUNTY.
It appearing from the return of Norris that he had not procured the certificate required by the act of Congress, the counsel for the captives, therefore, " excepted to the sufficiency of the return," as provided by the statute, distinctly stating to the judge that if this exception should be overruled they should then take issue upon the facts alleged in the return, and require Norris to prove all the facts therein. It will be noticed that the act of Congress is imperative in requiring the claimant to take the fugitives before some judge or magistrate of the State or county, " wherein such seizure or arrest shall be made," to procure the certificate.
The exception was ably argued on both sides until night, the counsel for the captives insisting that the law of '93 was the only remedy provided by Congress to recover fugitives from labor; that a claimant must strictly pursue its provisions to enable him to enforce his rights; that although by this law he had the right to seize or arrest, in the first instance, in the State where he might find the fugitive, yet, to enable him to hold his captive in another State, he must first procure a certificate in the State where the arrest was made, as provided by the law. The statute was plain in its provisions, and there was no misunderstanding it. On the other hand, it was contended that a claimant had a right to arrest any person whom he might claim as his slave, wherever he could find him, take him wherever he pleased, without any proof, certificate, warrant or process whatever; and if any one interfered or ques- tioned the claim, they did it at their peril. No authority whatever was introduced to sustain this position, and the judge, after a full and candid hearing, sustained the exception and ordered the cap- tives to be discharged.
The court-house was crowded with an anxious audience, listening to the argument and decision. Everything had been conducted with order and propriety, and no one, we presne, anticipated the scene which followed the announcement of the decision. The judge spoke in a very low tone of voice, so that but few could hear himn. As soon, however, as he concluded, Mr. Crocker announced the decision in a loud tone of voice, that all could hear. Norris, in the meantime, had gathered his men around the captives as they were seated within the bar; and the moment the decision was announced, they seized the captives with one hand, brandished their weapons with the other, threatening to shoot the first man that interfered. This was while the judge was still sitting on the bench, and before any adjournment had been announced. Everything had been per- fectly quiet up to this moment, but upon this display of force, the people rose to their feet highly excited. Some ran out and spread the alarm through town, others crowded around the Kentuckians and their captives, calling upon them to put up their weapons; but they continued brandishing them, threatening to shoot all who dared to oppose them. Mr. Liston, one of their counsel, jumped upon a table and called upon the Kentuckians to shoot all who interfered, and they would be justified in so doing. His language
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was most violent and abusive toward the citizens and did much to fan the excitement. The citizens were entirely unarmed, and not- withstanding the excitement, no attempt was made to rescue the captives by force. At length the Kentuckians put up their weapons, the excitement subsided, and, at the request of Norris, the Sheriff took the captives and locked them up in jail for safe keep- ing.
It was now discovered that while the trial was pending Norris had procured a writ under a law of the State of Indiana respecting fugitives from labor, under which he claimed to hold them, and he alleged that he was but serving this writ when he drew his weapons upon the people.
This was on Friday evening. During the evening and the next day several warrants were issued against the Kentuckians for assaults and batteries, and one for riot, predicated upon their violent proceedings in the court-honse. The whole of Saturday was occupied in trying these cases, and in the riot case they voluntarily gave bail to appear at the Circuit Court, which commenced its session the next Monday. Two suits were also commenced by the Powells against Norris and his party for trespass and false imprisonment, and they were held to bail in the sum of $1,000 in each suit. One of their connsel entered himself as bail for them. On Saturday evening, the captives having been all this time in custody of the sheriff in jail, where Norris had placed them, another writ of habeas corpus was procured, returnable before the same judge at 8 o'clock on Monday morning.
In the neighborhood from whenee these captives were taken, there is a large settlement of colored people, numbering, it is sup- posed, from 1,200 to 1,500 persons, many of whom are fugitives. As soon as it was known that Mr. Powell's wife and children had been carried off, several large parties, many of whom were armed, started in pursnit, but it was not until Saturday that they learned he direction taken. During Saturday and Sunday, numbers of these colored persons, estimated at from 75 to 200 persons, arrived at South Bend, many of them in a highly exasperated state, though they conducted themselves with great coolness and propriety under the circumstances.
On Saturday, a citizen of Michigan made affidavit before a jus- tice of the peace in South Bend, that Norris and his party had been guilty of kidnapping in Michigan, and had fled from that State to Indiana. On this affidavit, a writ for their arrest was issued under a law of Indiana, which provides that, upon sufficient proof, a fugitive from justice may be committed to jail for one month, to await a requisition from the Governor of the State from whence lie fled. This writ was placed in the hands of a constable, but was never served.
On Sunday morning Norris had a consultation with his attor- neys, at which it was conculded that it would be useless to attempt to take his captives out of the county, in the face of so many
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armed negroes: that they would abandon all legal proceedings, and endeavor to make the friends of the captives liable in damages for their value. Mr. Crocker, having been most active in befriending the negroes, was to be entrapped into some violation of the law, if possible. To carry out this seheme, on Sunday morning, they sent for the sheriff, and formally demanded the negroes of him, though they well knew that he had been served with a writ of habeas corpus, and that he would render himself liable to a fine of $1,000 should he fail to obey the writ. He, of course, declined. They then requested him to take witnesses and eall upon Mr Croeker, and get him to agree to become responsible for not deliv- ering them. He accordingly did so, but Mr. C. replied that he was acting as attorney, should do his duty fearlessly as such attorney, and should assume no other responsibility; that if he, the sheriff, refused to obey the writ of habeas corpus, the law should be enforced against him. This did not suit the conspirators.
During Sunday Mr. Liston called several times upon the con- stable, who had the writ, to arrest Norris and his party as fugitives from justice, and requested him to serve it, but he replied, that his orders were not to serve it unless they attempted to leave the town. It would seem that their object was to have Norris and his party arrested, and then offer that as an excuse for not appearing at the trial of the habeas corpus on Monday morning; but in this they were foiled, as they were at perfect liberty from Saturday night until they left town, several days after, and could have appeared at the trial had they seen proper.
During Saturday and Sunday Mr. Norris seemed very anxious to persuade the people that he was a kind and indulgent master, in order to create a favorable public opinion. In several different conversations he stated that he gave his negroes ground to culti- vate for themselves, and many other privileges, that he permitted them to go to Lawrenceburg, in Indiana, whenever they pleased, to sell their garden stuff, and that they had taken advantage of this liberty to run away.
Early Monday morning Mr. Liston stated to Mr. Crocker that Norris was very anxious to prove, on the coming trial, that the negroes were his property, to satisfy the citizens. As the case stood, he could not legally introduce sneh testimony, for he elaiined to hold them by a writ issued under a State law, which the U. S. Supreme Court had decided to be unconstitutional and void. The sheriff would be compelled in his return, to set up this writ, as his authority for holding them in enstody, and an exception to the sufficiency of the return would raise the question, under which no evidence could be offered. The object of the request seems to have been to obtain a refusal to admit the testimony before the issue was made np, and then addnee that as evidence of an unwillingness to grant a fair trial. But in this they were foiled, for the request was immediately acceded to, Mr. Croeker stating that he was willing to waive all technical matters and rest the case upon the question
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of freedom or slavery. This, however, did not suit their designs; for, when the trial came on, Norris refused to appear, saying that he did not want the negroes, that he could make the citizens pay for them, which was all he wanted.
The sheriff, in his return to the writ of habeas corpus, stated that he held the captives in custody, as the agent of Norris, under the State writ, which was set forth in full. A replication to this return was filed, sworn to by Lewis Powell, excepting to the suffi- ciency of the return, and alleging that they were free persons and not slaves. One of Norris' attorneys and several of his party were present at the trial, but refused to appear for Norris. The case of Prigg vs. Pennsylvania, 16th Peters' Reports, in which the U. S. Supreme Court declare that all laws passed by the States in relation to fugitives from labor are unconstitutional and void, was read to the court, and several witnesses examined in relation to the facts of the case. The court, after a full and fair hearing of the case, again ordered the captives to be discharged. The colored friends and neighbors of the captives immediately came forward, conducted them out of the court-house to a wagon, and quietly rode off home with them. On the bridge adjacent the town they halted, and made the welkin ring with their cheers for liberty. They rode off, singing the songs of freedom, rejoicing over the fortunate escape of their friends from the horrible fate of slavery. Thus ended one of the most exciting scenes ever witnessed in Northern Indiana. The grand jury refused to find an indictment against the Ken- tuckians for a riot, and in a few days after they quietly departed for their homes, with new views of Northern feeling on the subject of slavery.
The citizens of South Bend generally, without distinction of party, evinced the strongest feeling of sympathy for the oppressed. The trials called forth crowds to hear the arguments. The pres- ence of the poor, trembling captives in their weak and helpless condition, surrounded by a party of armed men in a court of justice, was a practical exhibition of slavery, which needed only to be seen to stir up the deepest fountain of feeling. The Kentuckians were looked upon almost nniversally with loathing and abhorrence. The sight of a family thus torn from a happy home, separated from those they held most dear, with nothing but slavery, hopeless, life- long bondage staring them in the face, made our citizens feel that nothing should be left undone to save them from such a horrid fate.
Mr. Crocker, in speaking of this event, says:
" Never shall I forget my feelings, as I stood among them in their dark cell in prison, when that mother, with streaming eyes and heaving breast, fell on her knees, and begged me to save them from slavery. Oh! what angnish filled those hearts! Who, possessing the heart of a man, could resist such an appeal? For one, I could not, and whatever cold, calculating conservatism might say, I felt then, that there is a ' higher law,' written by the finger of God
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upon the hearts of men, speaking in resistless tones, 'Thus saith the Lord, execute ye judgment and righteousness, and deliver the spoiled out of the hand of the oppressor.'-Jer. xxii: 3. Never can I forget an interview I afterward had with the husband and father of this family, who came to express his feelings of gratitude for my efforts in their behalf. The best of his days had been spent toiling for others living in luxury. Said he, ' I once had a wife; she was taken from me and sold South; I have never seen her since; I know not whether she is dead or alive, and when the news came, that this, my second wife, was in the hands of the Kentuckians, I felt that I had nothing more to live for,' and lie wept like a child."
Dec. 21, 1849, Norris commenced suit in the United States Cir- cuit Court, for the District of Indiana, against Leander B. Newton, George W. Horton, Edwin B. Crocker, Solomon W. Palmer, David Jodon, William Willmington, Lot Day, Jr., Amnable M. Lapiere, and Wright Maudlin, to recover the value of the negroes and other damages. Mr. Mandlin being a resident of Michigan, the snit was afterward dismissed as to him. The declaration filed charged the defendants with having knowingly harbored, and concealed, and aided the four negroes to escape from the plaintiff, stating them to be worth $2,500. The court commenced its session on the 3d Mon- day in May, 1850. The plaintiff appeared by O. H. Smith and J. A. Liston, and the defendants by Joseph G. Marshall and J. L. Jernegan, their attorneys. The defendants demurred to the decla- ration on the ground that the suit was founded on the act of Con- gress of Feb. 12, 1793, and that no reference was made to the statute in the declaration, referring to the opinion of Judge McLean, in the case of Jones vs. Vanzandt, 2 McLean's Rep., 630, where the judge says: " An exception is taken to the fourth eount, that it does not conclude against the form of the statute. If an action be founded exclusively upon the statute, and cannot be maintained at common law, a reference to the statute, as showing the right of the plaintiff, it seems to me is essential. The defendant is charged withi harbor- ing the slaves of the plaintiff, who had escaped from his service in Kentucky. But the wrong charged is no legal wrong, except as it is made so by statute; and the fourth count does not refer to the statnte. The statute is a public one, but it is the foundation, and the only foundation, of the plaintiff's right. It seems to me that the declaration must refer to the statute, as an essential part of the plaintiff's right," citing 1 Chitty's Pleading, 246; 1 Gallison, 257 and 261; 1 Sannders, 135 n. This decision, made by one of the judges of the U. S. Supreme Court, was precisely in point to sustain the demurrers. If the demurrers had been sustained, the plaintiff would have been compelled to amend his declaration, which would have continued the case to the next term, at his costs, amonnting to about $1,000. The demurrers were most unceremoniously over- ruled by Judge Huntington, who was officiating at this time.
The defendants then filed their pleas, one the general issue, and six special pleas, in which the proceedings under the writs of habeas
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HISTORY OF ST JOSEPH COUNTY.
corpus were set up as a defense to the action, thus raising the great question as to the right of alleged fugitives from labor to the writ of habeas corpus. The plaintiff moved to reject these special pleas, and as the question was an important one, the argument was deferred until Judge McLean should arrive from Washington City.
In arguing the motion the counsel for the plaintiff took the bold ground that a person arrested as a fugitive slave had no right to the writ of habeas corpus, even though the master had made no proof of his claim, or obtained a certificate under the act of Congress; and that all who assisted in procuring, with the officer that served, and the judge that tried the writ, were trespassers and liable to the plaintiff in damages. On the other hand it was contended that it was a sacred writ, secured by the express terms of the Constitution of the United States, and of the State of Indiana, and the laws of the land, and that all persons, without distinction; were entitled to its benefits. Judge McLean decided the motion, without express- ing his opinion upon these points, upon a mere technical objection, that the pleas amounted to the general issue, and he therefore rejected them.
The case at last came to trial. The jury was dnly empaneled. In the preceding pages is substantially set forth the evidence as it was given to the jury. The following is the amount claimed: Lucy, 40 years of age, $500; Lewis, 20, $800; George, 16, $750; James, 14, $700; plaintiff's expenses at South Bend, $165.80.
The charge to the jury by Judge McLean favored the claim of the alleged owner of the slaves, and the jury brought in a verdict against the defendants and assessed the damages at $2,856. March 29, 1855, the United States marshal sold a quantity of real estate owned by some of the parties in the snit to satisfy it.
Between the spring and fall terms of the Circuit Court, in 1850, the plaintiff commenced 12 snits, against 15 defendants, to recover in each snit the penalty of $500 under the act of 1793. The counsel for the plaintiff gave it out that they intended to commence about 25 additional suits, for the penalty; and if successful in them all, they would have recovered judgments to the amount of about $15,- 000 to $20,000. On the 18th day of September, 1850, the new fugitive law was passed by Congress, punishing the same offenses by fine not exceeding $1,000, and imprisonment not exceeding six months. At the November term, 1850, the defendants appeared and filed demurrers to the declarations.
Jernegan and Niles, for defendants, insisted on the following points in support of the demurrer. 1. The act respecting fugitives from labor, adopted Sept. 18, 1850, inflicts a greater punish- ment than the law of 1793, for the same offenses; 2. A new statute, imposing a new penalty, repeals the prior law by implication-cit- ing 4 Burrows, 2026; 5 Pick., 168; 21 Pick., 373; 9 New Hamp- shire, 59; 2 Dana, 330, 344; 3. Such repeal puts an end to all suits, whether pending at the time, or commenced after the passage of the new law, unless there be a saving clanse, which there is not in
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the law of 1850-citing 3 Burrows, 1456; 5 Cranch, 280; 4 Yeates, 392; 5 Randolph, 657; 1 Wash. C. C., 85; 4 Alabama, 487; 3, Howard, 534; 16 Peters, 362; 18 Maine, 109; 26 Maine, 452; 1 New Hampshire, 61.
O. H. Smith for plaintiff insisted on the following in reply:
1. The act of 1850 applies only to offenses occurring after its passage. 2. The penalties of the latter act are cumulative. Adding new penalties by law will not operate as a repeal of a prior law, unless there is a repealing clause, which there is not in this case- citing 1 Cowper, 297; 9 Bacon's Abridgment, Bouvier's Edition, 226. 3. The plaintiff had a vested right to the penalty of $500, which the act of Congress has not taken away. 4. The act of 1850 is an "amendment and supplementary " to the act of 1793, by its express terms.
J. A. Liston, for plaintiff, insisted that the two acts were not in- consistent with, or repugnant to each other; that they merely adopt different modes of recovering fugitives, imposing different penalties on those who violate the provisions of either; that a claimant can now pursue the remedy prescribed by the act of 1793, and if a person interfere with him in violation of that law, he can recover the penalty of $500; but if he should elect to proceed under the law of 1850, a person violating that law would be punished by fine and imprisonment.
The question was fully argued, occupying two entire days, and the court took the matter under advisement, until the spring term; and at the May term, 1851, the court decided in favor of the defendants, but as the plaintiff was desirous of having the points decided by the United States Supreme Court, the court, pro forma, certified to a difference of opinion, which is the only way the question can be carried up to the Supreme Court. The Supreme Court affirmed the decision of the lower conrt.
More than a quarter of a century has passed since the exciting events narrated formed a topic of the day. The drama of 1849 has become history. Of the actors, several have passed away, while others remain to glory in the triumph of their canse, to see the last vestige of slavery swept away, and all men equal before the constitution and laws of their country.
CHAPTER XIX.
UNIVERSITY OF NOTRE DAME .- ST. MARY'S ACADEMY .- NORTHERN IN- DIANA COLLEGE.
UNIVERSITY OF NOTRE DAME.
Very Rev. Edward Sorin, the founder of the university, was born at Ahuille, near Laval, France, in the year 1814. In 1840, he attached himself to the Congregation of the Holy Cross, a religious society then recently formed at Maus, near Paris. The objects pro- posed to be accomplished by this young society were the instruc- tion of youth and the preaching of missions to the people and to both of these ends Father Sorin at once devoted his life.
In furtherance of this object, and believing that in this country was a vast field for future usefulness, Father Sorin, with six other brothers of St. Joseph, sailed for New York in the summer of 1841, landing in that city on the 13th of September, the eve of the Exaltation of the Holy Cross. Father Sorin, the next day, in writing of this remarkable coincidence, says: " Our good God per- mitted me to land yesterday evening, the eve of the Exaltation of the Holy Cross. With what happiness did I salute and embrace this dear land of America, and what increase of consolation to land on the eve of so beautiful a day! * * * What joy for a poor priest of the Holy Cross to be able to say his first inass in America on the feast of the Exaltation of that sacred symbol! What a de- licious day it is here! how beautiful is the American sky! Ah, yes! my Father, here is the portion of my inheritance; here will I dwell all the days of my life."
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