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Noted for February 6, 2013

Die by the Technicality, LIve by the Technicality: DeLong Lawyering, 1855 Edition

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Collection: African American Newspapers
Date: February 1, 1855

CAMBRIDGE, O., Jan. 12, 1855.

To the Editor of The National Era: Enclosed I send you an account of a recent “Slave Case,” which occurred at this place. Having seen no notice of it in your paper, I clipped the enclosed account from the Guernsey Jeffersonian, thinking that you had not, perhaps, heard of it.

Yours truly, E. SMITH.

DECISION OF JUDGE DELONG. The State of Ohio, on Relation of P.B. Sarchett, against A.W. Graham.

*Habeas Corpus - before James Delong, Probate Judge of Guernsey County, Ohio.

This writ was issued for the purpose of taking from the custody of A.W. Graham two negro boys, and bringing them before said Judge, to try the right of said Graham to said custody.

The principal facts, as they appear upon the papers filed in the case, are these:

  • One of the boys, whose name is Enoch, and age ten years, is the slave of N.M. Lee, of Richmond, Virginia; and the other, whose name is Lewis, and age nine years, is the slave of T. Newdigate, of Kentucky.
  • That about the 5th day of December, 1854, the owners of said boys put them in charge of said A.W. Graham, at Richmond, Virginia, for the purpose of having them taken to Kentucky, at the same time instructing said Graham to proceed by the way of the Ohio river.
  • That said boys were not being taken to Kentucky for the purpose of sale.
  • That A.W. Graham, having said boys in his charge, on his way from Richmond, Va., to Kentucky, came to the Ohio river, but finding it not then navigable, without the express consent or knowledge of said owners, proceeded through the State of Ohio, upon the Central Ohio railroad, and that by reason of an accident to the train of cars in which said Graham with said boys were travelling, he was detained at Cambridge, during which detention this writ issued, and said boys were taken, from his said custody.

William R. Buchanan, John Ferguson, and John M. Bushfield, Esquires, were counsel for the State, and Joseph White, William R. Wagstaff, and H.J. Jewett, Esquires, counsel for A.W. Graham, respondent. The cause came up for final hearing and decision on Thursday, December 21st, 1854.

Before the argument of the case was commenced, the counsel for the defence moved that the boys be brought into Court, for the purpose of making their selection to go with their masters or remain, the decision upon which motion was reserved by the Judge till after the argument of the case upon the main questions. All the questions involved in the case were fully and ably argued by John Ferguson and John M. Bushfield on behalf of the State, and by William R. Wagstaff and H. J. Jewett on behalf of respondent.

Judge Delong, in deciding the case, held the following positions:

  1. That the States of the American Union, upon the subject of Slavery, stand as independent Governments, each being sovereign within its own limits, and subject to no control, except that which is contemplated by the 3d clause of the 2d section of the 4th article of the Constitution of the United States, by which a person held to service or labor in one State, under the laws thereof, escaping into another, shall not, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.
  2. That the relation of master and slave does not exist upon the principles of natural and general right, and that such relation is the creature of positive law, which is of no force and is not binding beyond the limits and jurisdiction of that State or country in which it is enacted.
  3. By the 6th section of the 1st article of the Constitution of the State of Ohio, it is declared, “There shall be no Slavery in this State, nor involuntary servitude, unless for the punishment of crime;” from which it follows that Slavery cannot exist in the State for a moment, (except in the case of a fugitive;) and that when the person cannot be said to be a fugitive, he and his master stand as man and man, and the master has no power or authority to control him within or remove him beyond the jurisdiction of the State.
  4. All persons within the limits of this State, even for the shortest period, become subject to all the municipal laws, civil and criminal, and entitled to all the privileges and protection which those laws afford; and this is the case, be the persons white or black.
  5. The 3d clause of the 2d section of the 4th article of the Constitution of the United States is the only authority for the restraint of a slave by his owner within this State, and being a provision denying a general right, must be strictly construed.
  6. Where a slave is brought into the State by the owner's agent, the agent at the time pursuing the general object of the agency, construing said 3d clause of the 2d section of the 4th article of the Constitution of the United States strictly, the slave cannot be said to be a fugitive; in such case, the slave has no will in the matter, but is controlled by the agent in furtherance of the general object of the agency; and if the agent in some particulars violates the instructions given him, to the injury of the owner, it becomes a question between them, and not a question under said fugitive clause.
  7. In cases where there is a conflict, the common law gives way to statute, and both common and statute give way to and are superseded by constitutional; whatever may be the rule of the common law upon the subject of transit of another, with reference to slave property, the question is settled by the 6th section of the 1st article of the Constitution of this State, and most clearly against such right of transit.
  8. That, to be protected under the claim of necessity, it devolves upon the respondent to show to the Court that it was such necessity as entirely prevented the respondent from exercising and even the slightest volition; that, such proof not being made his coming within the territorial limits of this State must be held to be voluntary.

Whereupon, the boys were pronounced by the Judge to be free from the control and power of respondent.

The Judge was of opinion that they were too young to make the election asked for by respondent's motion, and overruled the same. Upon motion of counsel for the State, a guardian was appointed, who immediately took them into charge.