The offense consists in continuing to secrete from the owner what the acts of Congress and the Constitution, as well as the laws of several of the States, treat, for certain purposes, as property, after knowing that claims of property exist in respect to the fugitive. Now, the act of Congress does not. in terms, require the notice to be in writing, nor does the reason of the provision, nor the evil to be guarded against, nor any sound analogy. The reason of the provision is merely, that the party shall have notice or information sufficient to put him on inquiry, whether he is not intermeddling with what belongs to another. If the information given to him, orally or in writing, is such as ought to satisfy a fair minded man that he is concealing the property of another, it is his duty under the Constitution and laws to cease to do it longer. (Eades v. Vandeput, 5 East, 39, note; Blake v. Lanyon, 6 D. & E., 221.) Such a notice is sufficient also by way of analogy; as, for instance, notice in relation to a prior claim on property purchased. (The Ploughboy, 1 Gall., 41; 9 Jurist, 649; 1 Sumner, C. C., 173; 1 Cranch, 45.) Or of a prior defense or set-off against a demand assigned to him. (Humphries v. Blight's Assignees, 4 Dall., 370.) Or even in crimes, that the notes or coin one is passing away are counterfeit. Any other construction would go, likewise, beyond the evil to be avoided by the notice, which was the punishment of an individual for harboring or concealing a person, without having reasonable grounds to believe he was there by injuring another. the party was, knowingly or ignorantly as to their condition, rendering them assistance to escape by temporarily harboring or secreting them. So far as regards this point, it is a question merely of scienter. No matter how or whence the knowledge came, if it only existed. The concealment here was practiced during fresh pursuit to retake the slaves; and hence, without any formal notice or demand, no doubt could exist as to the wish to reclaim them, as well as the fact of their being slaves. (See Hart v. Aldridge, Cowp., 54.) Furthermore, that the defendant has not suffered by the charge to the jury on this point is manifest from his own declarations at the time, that he knew the fugitives to be slaves (Jones v. Van Zandt, 2 McLean, C. C., 599), and from the instruction to the jury that this fact must be clearly proved before they ought to convict him. (p. 607.) This view of the subject disposes of several other points of division connected with it. Because every purpose contemplated by the notice is accomplished, without a publication of it previously in a newspaper, which is the second question. To require such a publication would be entirely arbitrary, and would still more surely defeat the whole law than to hold the notice must be in writing, and served on the defendant, before he is liable. So, as to the third question, whether the information be sufficient if acquired from the slave himself, it is manifest that such a source of information for that fact is one of the most satisfactory, as he has good means of knowing it, and is not likely to admit his want of freedom, unless it actually exist. The next question relates to what constitutes concealment or harboring of a slave, within the meaning of this statute. It seems from the facts, which by agreement are all those reported in the printed case as tried in the court below (2 McLean, 596), as Any other construction, too, would be sui- well as those inserted in this record, that sevcidal to the law itself, as before a notice in writ-eral slaves, owned by the plaintiff in Kentucky, ing would be prepared and served on the defendant, the fugitives would be carried beyond the reach of recovery in many cases, and in others would have passed into unknown hands. This is not a case like some cited in the argument, where the party prosecuted was not concerned in getting away the apprentice or person harbored, but merely entertained him afterwards from hospitality, or in ignorance of his true character and condition. Then a more formal notice and demand of restoration may be proper, before suit, in order to remove any doubts as to the condition of the fugitive who is thus entertained, or the intent of the master to enforce his rights and reclaim his property. (1 Chit. Gen. Prac., 449.) But verbal notice is enough then. (See the cases in East, and Durnford & East, just cited.) 226*] *Besides this, the present is a case where the defendant was a partaker in accomplishing the escape itself, like a particeps criminis, and where the concealment and harboring were not after the escape was over, but during its progress, while the slaves were in transitu; and where the notice is not exclusively with a view to procure their restoration, but is also an element in the case to show whether escaped from him and fled to Ohio, adjoining, and, aided by some person not named, and when about twelve miles distant from their master's residence, were taken into a covered wagon by the defendant in the night, and driven with speed twelve or fourteen miles, so that one was never retaken, though fresh suit was made for the whole. Now, whatever technical definition may exist of the word "conceal" or "harbor," as applied to apprentices or other subjects, no doubt can exist that these words and their [*227 derivatives must here be construed in reference to the matter of the statute, and the nature of the offense to be punished. These show this offense to consist often in assistance to escape, and reach speedily some distant place, where the master cannot find or reclaim such fugitives, rather than in detaining them long in the neighborhood, or secreting them about one's premises. We see nothing, then, in the facts here, or in the instruction of the judge on them, secundum subjectam materiam, which shows this case not to have been, as the jury found it to be, one within the manifest design of the statute against harboring and concealing persons who were fugitives from labor, after notice, or full knowl- | vision in respect to the motion in arrest. They edge of their character. Indeed, the general definition of the word "harbor" in 1 Bouvier, 460, as quoted by the defendant's counsel-saying nothing as to the authority of that work-is such as to be fully covered by the facts in this case, as stated in the record, and as found by the jury. It is, "to receive clandestinely, and without lawful authority, a person for the purpose of concealing him, so that another, having the right to the lawful custody of such person, shall be deprived of the same." There was a clandestine reception of the slaves, and without lawful authority, and a concealment of them in a covered wagon, and carrying them onward and away, so as to deprive the owner of their custody. To har bor" is also admitted in the argument often to mean "to secrete." Such is one of the best established definitions by the best lexicographers. Yet here they were secreted, not only, as just stated, by being placed in a covered wagon, and carried to a greater distance from their master, but it was done rapidly, and in part under the shades of night. That no mistake on this point occurred at the trial is likewise manifest from the fact that the judge charged the jury, the defendant must not be considered as harboring or concealing the slaves, unless his conduct was such as not only to show an intention to elude the vigilance of the master, but such as is calculated to attain that object." (2 McLean, C. C., 615.) Nor can the recovery of one of the slaves afterwards, who was thus concealed and transported, vary the previous fact of secreting and harboring him. That is the fifth inquiry. The answer to the sixth is involved in that to the fourth and fifth; as is an answer to the seventh in that to the first question. Because, if the notice need not come from the claimant himself, nor be in writing, it need not be preceded or accompanied by a claim, which is the seventh inquiry. A claim subsequently made must be equally valid with one before the notice, whether looking to the reason of the case or the language of the statute. The gist of the offense consists in the con228*] cealment of another's *property, under knowledge that it belongs to another, and not in a claim being previously made and refused. That refusal might constitute a separate wrong, or be another species of evidence to prove a harboring of the slave, but it is not the offense itself, for which the penalty now sued for is imposed. The eighth and last question under this head seems to be an abstract proposition, and does not refer to any particular facts in the case. But if it was laid down in relation to some of them, as it must be presumed to have been in order to make it a proper subject for a division of opinion, to be reconsidered here, we are not aware of anything objectionable in it. The "overt act" spoken of was required to be one both intended and calculated to elude the master's vigilance. If so, it showed acts and designs of the defendant, which in the words and spirit of the statute amount or tend directly to harbor or conceal the fugitive from labor. We shall now proceed to the points of di are, first, whether the counts contain the necessary averments, that the slave Andrew escaped from Kentucky to Ohio. It is admitted that, this prosecution being a penal one, the declaration must bring it within the statute clearly, whether looking to its language or spirit. (Dwarris on Statutes, 736; 5 Dane's Abr., 244, sec. 8; Simmons' case, 4 Wash. C. C., 397.) It is not necessary to multiply authorities on so elementary a proposi tion. On turning to the counts, however, it will be seen that they allege the residence of the plaintiff in Kentucky, the ownership by him of these slaves, held to labor there, and their unlawfully,” and “without his consent," going from that place to Ohio, as "fugitives from labor." All these allegations combined, and not merely the going away, are a clear and sufficient averment of an escape of the slave Andrew under the first objection in arrest. If they contain sufficient matter to show an escape, it need not be alleged in the very words, ipsissimis verbis, of the statute. (1 Chit. Pl., 357; The King v. Stevens et al., 5 East, 244.) The ungrammatical use of the word was" for "were," in speaking of both slaves, is urged as an uncertainty which vitiates this part of the declaration. But no one can doubt that both are referred to, and the more especially after a verdict. As to what is thus covered by a verdict, see Garland v. Davies (4 How., 131) and the cases there cited, and 11 Wend., 374. The second point certified under the motion in arrest is, whether the "counts contain the necessary averments of notice that said Andrew was a fugitive from labor within the description of the act of Congress." We cannot doubt that they do, when the first count alleges that said Andrew was in Ohio, "a fugitive from labor, and the defendant, well knowing that said Andrew was the slave of the plaintiff, and a fugitive from labor," &c., did harbor and conceal him. *So in respect to the third question [*229 connected with the arrest of judgment, which is, whether the averments are sufficient under the statute as to harboring the slave Andrew, the answer can be but one way. However strict the construction should be, yet the count alleges, in so many words, that the defendant did "knowingly and willfully harbor, detain, conceal, and keep said slave.' 46 Under the fourth general objection of insufficiency in the declaration, no specific point, not otherwise designated, has been called to our attention, except that all the acts alleged in the declaration are not said to be contrary to the statute." This last expression follows the concluding portion of the count, and this expression may be necessary in a penal declaration. (Lee v. Clark, 2 East, 333; 1 Gall., 259. 265, 271; 1 Chit. Pl., 358.) But all know, that where it is inserted at the end of a declaration or indictment, it does not, as a general rule, relate to the last preceding averments alone, but the whole subject matter before alleged to constitute an offense. It is all that misconduct which is contrary to the statute, and not the concluding part of it only. It remains to consider the fifth and sixth divisions of opinion under this head. They are, whether the act of Congress under which That this act of Congress, then, is not rethe action is brought is repugnant either to the pugnant to the Constitution, must be considConstitution or the ordinance "for the governered as among the settled adjudications of this ment of the territory northwest of the River court. Ohio." The last question on which a division is cerThis court has already, after much deliberatified relates to the ordinance of 1787, and the tion, decided that the Act of February 12th, supposed repugnancy to it of the Act of Con1793, was not repugnant to the Constitution.gress of 1793. The reasons for their opinion are fully explained by Justice Story in Prigg v. Pennsylvania (16 Peters, 611). serv The ordinance prohibited the existence of slavery in the territory northwest of the River Ohio among only its own people. Similar proIn coming to that conclusion they were forti- hibitions have from time to time been introfied by the idea that the Constitution itself, induced into many of the old States. But this the clause before cited, flung its shield, for se- circumstance does not affect the domestic incurity, over such property as is in controversy stitution of slavery, as other States may choose in the present case, and the right to pursue to allow it among their people, nor impair their and reclaim it within the limits of another State. rights of property under it, when their slaves This was only carrying out, in our confeder- happen to escape to other States. These other ate form of government, the clear right of every States, whether northwest of the River Olio or man at common law to make fresh suit and re- on the eastern side of the Alleghanies, if out capture of his own property within the realm. of the Union, would not be bound to surrender (3 Black. Com., 4.) fugitives, even for crimes, it being, as before remarked, an act of comity, or imperfect obligation. (Holmes v. Dennison et al., 14 Pet., 540.) But while within the Union, and under the obligations of the Constitution and laws of the Union, requiring that this kind of property in citizens of other States-the right to ice or labor "be not discharged or destroyed, they must not interfere to impair or destroy it, but, if one so held to labor escape into their limits, should allow him to be retaken [*231 and returned to the place where he belongs. In all this there is no repugnance to the ordinance. Wherever that existed, States, still maintain their own laws, as well as the ordinance, by not allowing slavery to exist among their own citizens. (4 Martin's R., 385.) But in relation to inhabitants of other States, if they escape into the limits of States within the ordinance, and if the Constitution allow them, when fugitives from labor, to be reclaimed, this does not interfere with their own laws as to their own people, nor do acts of Congress interfere with them, which are rightfully passed to carry these constitutional rights into effect there, as fully as in other portions of the Union. But the power by national law to pursue and regain most kinds of property, in the limits of a foreign government, is rather an act of comity than strict right; and hence, as the property in persons might not thus be recognized in some of the States in the Union, and its reclamation not be allowed through either courtesy or right, this clause was undoubtedly introduced into the Constitution, as one of its compromises, for the safety of that portion of the Union which did permit such property, and which otherwise might often be deprived of it entirely by its merely crossing the line of an adjoining State: Madison Papers, 1569, 1589.) This was thought to be too harsh a doctrine 230*] in respect to any title to property-of a friendly neighbor, not brought nor placed in another State, under its laws, by the owner himself, but escaping there against his consent, and often forthwith pursued in order to be reclaimed. The act of Congress, passed only four years after the Constitution was adopted, was therefore designed merely to render effective the guaranty of the Constitution itself; and a course of decisions since, in the courts of the States and general government, has for half a century exhibited great uniformity in favor of the validity as well as expediency of the act. (5 Serg. & R., 62; 9 Johns., 67; 12 Wend., 311, 507; 2 Pick., 11; Baldw. C. C., 326; 4 Wash. C. C., 326; 18 Pick., 215.) While the compromises of the Constitution exist, it is impossible to do justice to their requirements, or fulfill the duty incumbent on us towards all the members of the Union, under its provisions, without sustaining such enactments as those of the statute of 1793. We do not now propose to review at length the reasoning on which this act has been pronounced constitutional. All of its provisions have been found necessary to protect private rights, under the clause in the Constitution relating to this subject, and to execute the duties imposed on the general government to aid by legislation in enforcing every constitutional provision, whether in favor of itself or others. This grows out of the position and nature of such a government, and is as imperative on it in cases not enumerated specially, in respect to such legislation, as in others. Before concluding, it may be expected by the defendant that some notice should be taken of the argument, urging on us a disregard of the Constitution and the act of Congress in respect to this subject, on account of the supposed inexpediency and invalidity of all laws recognizing slavery or any right of property in man. But that is a political question, settled by each State for itself; and the federal power over it is limited and regulated by the people of the States in the Constitution itself, as one of its sacred compromises, and which we possess no authority as a judicial body to modify or overrule. Whatever may be the theoretical opinions of any as to the expediency of some of those compromises, or of the right of property in persons which they recognize, this court has no alternative, while they exist, but to stand by the Constitution and laws with fidelity to their duties and their oaths. Their path is a straight and narrow one, to go where that Constitution and the laws lead, and not to break both, by traveling without or beyond them. Let our opinion on the several points raised be 129 9 certified to the Circuit Court of Ohio in conformity | to these views. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court 1st. That, under the fourth section of the Act of 12th February, 1793, respecting fugitives from justice, and persons escaping from the service of their master, on a charge for harboring and concealing fugitives from labor, the notice need not be in writing by the claimant or his agent, stating that such person is a fugitive from labor, under the third section of the above act, and served on the person harboring or concealing such fugitive, to make him liable to the penalty of five hundred dollars under the act. 232*] *2d. That such notice, if not in writing and served as aforesaid, may be given verbally by the claimant or his agent, to the person who harbors or conceals the fugitive, and that to charge him under the statute, a general notice to the public in a newspaper is not necessary. 3d. That clear proof of the knowledge of the defendant, by his own confession or otherwise, that he knew the colored person was a slave and fugitive from labor, though he may have acquired such knowledge from the slave himself, or otherwise, is sufficient to charge him with notice. 4th. That receiving the fugitive from labor at three o'clock in the morning, at a place in the State of Ohio, about twelve miles distant from the place in Kentucky where the fugitive was held to labor, from a certain individual, and transporting him in a closely covered wagon twelve or fourteen miles, so that the boy thereby escaped pursuit, and his services were thereby lost to his master, is a harboring or concealing of the fugitive within the statute. 5th. That a transportation under the above circumstances, though the boy should be recaptured by his master, is a harboring or concealing of him within the statute. 6th. That such a transportation, in such a wagon, whereby the services of the boy were entirely lost to his master, is a harboring of him within the statute. 7th. That a claim of the fugitive from the person harboring or concealing him need not precede or accompany the notice. 11th. That the averments in said counts, that the defendant harbored said Andrew, are sufficient. 12th. That said counts are otherwise sufficient. 13th. That the Act of Congress approved February 12th, 1793, is not repugnant to the Constitution of the United States. And, Last. That the said act is not repugnant to the ordinance of Congress adopted July, 1787, entitled, "An ordinance for the government of the territory of the United States northwest of the River Ohio. It is thereupon now here ordered and adjudged by this court, that it be so certified to the said Circuit Court of the United States for the District of Ohio. GEORGE TAYLOR, &c. Alabama law-administrator de bonis non not responsible for assets in hands of deceased as executor-settlement of executor's account not opened after lapse of twenty years by proof of mistake in computing interest-direction in will to sell land, powers and duties of executor -damages for neglect-money in executor's hands-statute of limitations—devise to alien. By the laws of Alabama, an administrator de bonis non, with the will annexed, is liable for assets in the bands of a former executor. Where an executor has settled what appears to be a final account, it must be a very strong case of fraud proved in such a settlement, or of clear accident or mistake, to make it just to re-open and revise the account after the lapse of twenty years and the death of the parties concerned. Where a person who held land as trustee directed by his will that the whole of the property that he may die seized and possessed of, or may be in any wise belonging to him, should be sold, the execu tors had power to sell the land held in trust, as well as that belonging to the testator in his own right. The trustee, by his will, having appointed residuhar-ary legatees, must be considered as devising the trust as well as the lands to these residuary legatees, who thus became themselves trustees for the original cestui que trust. 8th. That any overt act, so marked in its character as to show an intention to elude the vigilance of the master or his agent, and which is calculated to attain such an object, is a boring of the fugitive within the statute. 9th. That the first and second counts contain the necessary averments, that Andrew, the colored man, escaped from the State of Kentucky into the State of Ohio. 10th. That said counts contain the necessary averments of notice that said Andrew was a fugitive from labor within the description of the act of Congress. The power in the executors to sell was a power coupled with a trust. It might also be considered as a power coupled with an interest. The distinction between these powers adverted to. In order to avoid an escheat, and carry out the wishes of the testator, a court of equity will, if necessary, consider land as money, where a testator, who is a trustee, has directed the land to be sold, and will direct the proceeds to be given to the cestui que trust. Whether the executor had a power to sell coupled with a trust, or a power coupled with an interest, the residuary legatees took by devise and not by descent, although they were supposed to be also the cestuis que trust. If, therefore, they were aliens, the land did not escheat on the death of the trustee, because land taken by devise does not escheat until office found, although land cast by descent does. The testator, who held the lands as trustee, having died in South Carolina, the executor took out letters testamentary in that State, sold the lands which were in Kentucky, and then removed his residence to Alabaina. He can be sued in Alabama for the proceeds of the lands, because his transactions in reference to them were not necessarily connected with the settlement of the estate under his letters testamentary. Having sold the lands and received the consideration, he must be responsible to the residuary leg atees. A power to sell, coupled either with an interest or trust, survives to the surviving executor. So, also, if all the trustees or executors in such case decline to act, except one. When a sale is made under a will, the omission to record the will does not vitiate the sale, unless recording is made necessary by a local statute. The land being in fact sold by the executor, claiming a right to do so under the will, and the purchase money being received by him, he is responsible to the cestuis que trust for the money thus received. The reception of an additional sum, as purchase money, by them, with a reservation of the right to sue the executor, is not an avoidance of the first sale by the executor. But the executor is not responsible for more money than he received, with interest, unless in case of very supine negligence or willful default. A claim for damages would also be subject to the operation of the statute of limitations. THE HESE cases were twice before partially brought to the notice of the court, and are reported in 1 How., 282, and 2 How., 395. They were cross appeals from the District Court of the United States for the Northern District of Alabama, sitting as a court of equity. The bill was originally filed by Samuel Taylor, the father of William, George, Eliza, and Elspet, together with his nephews, William Rainey, Alexander Rainey, and his niece, Elizabeth Rainey, against George M. Savage, executor of Samuel Savage, deceased. The object of the bill was to hold the estate of Samuel Savage responsible for certain moneys which, it was alleged, he had received during his lifetime, in his capacity of executor of William F. Taylor, a citizen of the State of South Carolina, and also for his alleged neglect of lands in Kentucky, by which they were lost. The record was very voluminous, as a great mass of evidence was filed in the court below, all of which was brought up to this court. The claim divided itself into two distinct branches, one arising from transactions in South Carolina, where William F. Taylor, the testator, died, and where letters testamentary were taken out by Samuel Savage; and the other from transactions in the State of Kentucky. Each of these branches will be stated separately. Sav William F. Taylor resided in South Carolina, where he had been naturalized in 1796. age lived with him for some time, and afterwards continued to reside in the vicinity. In 1811, Taylor died, leaving a will, which was admitted to probate on the 11th of August, 1811. At the time of his death, the brother and sister of the testator, namely, Samuel Taylor and 234*] *If the executor himself did not set up a Mary Taylor, were both alive, married, and claim, as an offset, for his personal expenses, his representative cannot do it, under the circum- had issue. Their children ultimately became parties to this suit, and their names are in the title of the case. Samuel Taylor had two sons, namely, William and George, and two daugh stances of this case. The cextuis que trust residing in a foreign country, the statute of limitations did not begin to run until a demand was made upon the executor for the his not bringing suit until the Act of Limitations opposed a bar to recovery, unless he acted in bad faith, was guilty of fraud, willful default or gross negligence. Thomas v. White, 3 Litt., 177. Executor's estate made liable for the value of the estate of testator, sold by him without authority; and also made liable for the securities which might prove defective. Smith v. Ex'rs of Smith, 1 Desaus., 304. An executor is not liable for the acts or omissions of the master, in not taking securities, or collecting the funds, where the master has been ordered to sell the estate, collect the money, and pay over to the executor. Thompson v. Wagner, 3 Desaus., 94. der of the court of ordinary, is liable for the debt, in case of the insolvency of the purchaser; but such insolvency must be established, before the executor's estate is made absolutely liable. Stukes v. Collins, 4 Desaus., 207. An executor or trustee cannot purchase the trust property from his co-executor or trustee without being liable for the profits arising from the property purchased. Case v. Abeel, 1 Paige, 393. An executor, having given his own note for a debt due by the estate, does not exempt the estate from the liability; and he may be sued in equity as executor for it. Douglas v. Fraser, 2 McCord's Ch., 111. If the administrator, on the sale of his intestate's Executor made liable for gross neglect, in not re-property, take any other security than that reCovering a debt, where the party became insolvent. quired by the terms of the order for sale, he beWitherspoon v. M'Calla, 3 Desaus., 245. comes personally responsible; and if a loss ensue, it must fall upon him. Peay v. Fleming, 2 Hill, 98. If an administrator sells leasehold property, and takes the notes of the purchaser, without other security, the administrator is liable to the next of kin, for the amount not paid by the purchaser, who has become insolvent. King v. King, 3 Johns. Ch., 552. An administrator, paying debts out of the original order or proportion, is liable to creditors, and he is not allowed to retain, for debts due to himself, more than his proportion. Lenoir v. Winn, 4 Desaus., 65. An executor, selling on a credit the personal estate of the deceased, and not taking personal security from the purchaser, as prescribed by the or The estate of a deceased executor, who obtained |