Charles Brown.

Report of the case of Charles Brown, a fugitive slave, owing labour and service to Wm. C. Drury, of Washington County, Maryland. : decided by the recorder of Pittsburgh, February 7th, 1835 online

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REPORT



OF THE



CASE OF CHARLES BROWN,

tf FUGITIVE SXiJMVtE,

OWING LABOUR AND SERVICE TO

WM. 0. DRURIT,

OF WASHINGTON COUNTY, MARYLAND.



DECIDED BY THE RECORDER OF PITTSBURGH,
FEBRUARY 7th, 1835.



PITTSBURGH*

I'HINTED BY ALEXANDER JAYNES, lEVVIPf's ROW, MARKET ST.

1835.



f>et>.75ESM



NOTE BY THE REPORTER.



Several of the Gentlemen of the Pittsburgh Bar having requested
the publication of the case of Charles Brown, an alledged " fugi-
tive" from the State of Maryland, "owing labour and service" to
William C. Drury, of Washington County, Maryland, I have
complied with their request — desiring it, however, to be understood
that the Arguments of Counsel are greatly condensed, the substance
only being given. Originally, the Notes were taken by the Recorder,
for his own use, without any view to publication — but brief as they
necessarily are, they present as full a view of the case as is probably
desirable for future reference.

Feb. 11*7*, 1835.



hi the Case of Charles Brown, an alledged Run-
away Slave, the property of William C. Drury,
Merchant, of Hagerstown, Washington County,
Maryland.



In this case the deft., Charles Brown, was apprehended by con-
stables Reed and Dunshee, on a warrant issued by alderman D. S.
Scully, Esq., on Saturday, 24th January, 1835, on the oath of Ed-
ward Fitzpatrick, agent and attorney in fact of William C. Drury,
and was brought before me, at the office of the said D. S. Scully,
Esq., on the evening of the said 24th January, 1835, between the
hours of 8 and 9 o'clock, P. M., and it appearing to my satisfaction
that the said Charles Brown, not having counsel, and being otherwise
unprepared for a hearing; and it being, in my opinion, too late an
hour to enter upon the hearing of the case, I ordered and directed
that the said Charles Brown should be committed to the common jail
of said county, until Monday morning next, at 10 o'clock, A. M., for
further hearing; and that in the meantime he should have full oppor-
tunity of consulting counsel: and he was committed accordingly-



Monday, January 26th, 1835, 10 o'clock, A. M. The case of
Charles Bi'own, according to adjournment, was again brought before
me for examination. Messrs. M 1 Candless and Hamilton appeared
as counsel for Brown, and Messrs. Kingston and Dallas for the mas-
ter, William C. Drury. Both parties requesting further time for
preparation, by consent, I adjourned the further hearing of the case
until to-morrow morning, at 10 o'clock, A. M., at the court house in
the city of Pittsburgh; and the deft., Charles Brown, was accord-
ingly further committed until that time. Each party to be entitled to
subposnas for witnesses, in the usual form, upon proper application to
me for that purpose. Edward Fitzpatrick to pay for the maintenance
of Brown, in jail, at the usual rates allowed in such cases.



Tuesday, January 27th, 1835, 10 o'clock, A. M. atthe court house,
in Pittsburgh, Charles Brown was brought before me for further
hearing — Messrs. M 'Candless and Hamilton for Brown, and Messrs.
Kingston and Dallas for W. C. Drury, the alledged master.

Edward Fitzpatrick, sworn on his voir dire, — says he is not in.

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any way interested in this case — that he is not to receive any thing
from Mr. Drury, or any body else, for his services — not to receive
any thing, in any way. Says he has known Wm. C. Drury and his
family ever since the year 1818 — was once in partnership in mer-
chandizing with Mr. Drury — no part of the slave labour went to-
wards the establishment. He now resides in Pittsburgh.

Sworn in chief. — In 1818 I lived with Wm. C. Drury, as a clerk,
at Hagerstovvn, Maryland. In 1820 he discontinued business, and
recommenced again in 1823, and in 1826 took me in partnership, in
the store-keeping or mercantile business. The partnership was dis-
solved in March, 1832. During this time I was frequently at his
house in the country. I many times saw this black boy, Charles
Brown, there. He was a servant about the house, and generally took
my horse, and put him away. He was frequently at the store in Ha-
gerstown. He acted as a servant. I know that he is a slave, and
Mr. Drury said he had raised his mother. Tn 1818 he was a child
of 2 or 3 years old — was then a small child, running about. I knew
both his father and mother. He made his escape from Mr. Drury
in June, 1832. About 5 weeks ago I first saw him in town — he ap-
peared to recognize me. I then wrote to Mr. Drury, informing him
of the circumstance, and received from him this power of attorney.
This is the same boy described in the power of attorney — I have no
doubt of it. When I first saw him, I looked earnestly at him; his
whole conduct was such as to lead to suspicion — he looked back at
me, and then ran away. He always called himself Charles Brown.
I have no hesitation in saying that this is the same boy described in
the power of attorney, and that he is a slave, the property of Wm.
C. Drury, as I have before stated.

Cross examined. — Do you know by what title Mr. Drury claims
this boy as a slave? I know of no other title than that he was born
and bred up in the family of Mr. Drury ever since he was a child,
and that he was always considered as a slave there. When did you
receive the power of attorney? [Mr. FitzpatricJc here produced a
letter from Mr. Drury enclosing the power of attorney, dated 19th June,
1832. It appears it was acknowledged in blank, was received by
Mr. F. in blank, and the name "Edward FitzpatricJc," in the power
of attorney, was inserted in that blank by himself. See the letter
and power of attorney.]

Michael P. FitzpatricJc, (son of Edward FitzpatricJc, aged 14 years
next March,) sicorn. — Says that he knows Charles Brcwn, the black
boy now here present — knew him at Hagerstown, Maryland, and at
his master's house near thereto. Played with him often, as children,
at his master's house. I don't know his age, but think that he is 3
or 4 years older than me. I often saw his father and mother, and
grandmother, at Mr. Drury's. I saw him first here about three weeks
ago, in Alleghenytown. Cross examined. — I have no doubt of this
being the same boy, Charles Brown, that I saw at Mr. Drury's. I



have not seen Mr. Drury since we left Hagerstovvn, in October,
1833.

[The letter from Mr. Drury to Mr. Fitzpatrick, enclosing the power
of attorney, was read in evidence, as was also the power itself. The
letter was received by Mr. F. from Mr. D. by mail.] Excepted to by
Mr. JSTCandless for Charles Brown, upon the ground of interest ap-
parent, on the part of Fitzpatrick, who, as the agent of Drury,
stands here precisely in the place of Drvry himself; and it is clear,
if the master was here himself, he could not be heard. The power
of attorney was executed in blank, three years ago, and that blank
appears to have been recently filled up by Fitzpatrick, the witness
himself, with his own name. Is such a power of attorney, even al-
though on the face of it properly certified, a legal power, such as the
law would require in a case like the present? Is it not the act of
Fitzpatrick himself, constituting himself the agent of Drury — and
not of Drury constituting Fitzpatrick as his agent? Can his testi-
mony with regard to the ownership of the boy be received at all under
such circumstances? This is to be considered, not as a case between
master and servant, but as a quasi-criminal proceeding; and as the
law is in favour of liberty, it must be strictly construed.

The following are copies of the papers admitted in evidence on the
hearing, and referred to by the witnesses, and by the counsel on both
sides in arguing this case.



Copy of the power of attorney from William C. Drury to Edward
Fitzpatrick:

" Know all men by these presents, that I, William C. Drury, of
Washington county, and state of Maryland, have made, ordained, au-
thorized, nominated, and appointed, and by these presents do make,
ordain, authorize, nominate, constitute, and appoint Edward Fitzpa-
trick ,* late of Washington county, and state aforesaid, my true and
lawful attorney for me, and in my name, and for my own proper use
and benefit, to demand, apprehend, recover, secure, and bring back
my negro boy, slave for life, who ran away on Saturday night, the
16th inst., about eighteen years of age, and calls himself Charles
Brown, about five feet nine or ten inches high, of a dark complexion,
well made, and a good countenance; and to use all legal means for
the apprehension and recovery of said slave, and to do all other lawful
acts and things whatsoever concerning the premises, as fully and in
every respect as I myself might or could do, were I personally pre-



*This power was sent in blank, and the name of Edward Fitzpatrick was filled
up by himself, after he received it through the medium of the post office, enclosed
in a letter from Mr. Drury, dated Willhmsport, 19th January, 1835.



sent. In witness whereof I have hereunto set my hand and seal this
19th day of June, 1832.

W. C. DRURY, [seal."]
Witness,
Jko. McIlhenny.



Maryland, Washington County, ss.
On this 19th day of June, 1832, personally appears William C.
Drury, named in the foregoing letter of attorney, before me, the sub-
scriber, a justice of the peace for the state of Maryland, in and for
the county aforesaid, and acknowledged the same to be his act and
deed for the purposes therein mentioned. Acknowledged before

JNO. MclLHENNY.



Maryland, Washington County, set.
On this 19th day of June, 1832, personally appears William C.
Drury, named in the foregoing letter of attorney, before me the sub-
scriber, a justice of the peace for the state of Maryland, in and for
the county aforesaid; and makes oath, on the Holy Evangelists of Al-
mighty God, that his negro boy, named Charles Brown, eloped from
him on Saturday night, the 16th inst.; that the said negro boy is about
eighteen years of age, about five feet nine or ten inches high, of a
dark complexion, well made, and a good countenance, and that he is
a slave for life. W. C. DRURY.

Sworn and subscribed before me,
Jno. McIlhenny.



State of Maryland, Washington County, to wit:
I, Otho D. Williams, clerk of Washington county court, do hereby
certify, that John McIlhenny, gentleman, before whom the foregoing
acknowledgment and affidavit appear to have been made, and who
has thereto subscribed his name, is a justice" of the peace of the state
of Maryland, in and for the said county, duly commissioned and sworn,
and duly authorized and empowered to administer oaths and take the
acknowledgments of deeds and other instruments of writing; and to
all his acts as such, faith and credit is due, as well in courts of justice
as thereout.

Seal of the ^ In testimony whereof, I have hereunto subscribed
court of Wash- ! my name, and fixed my seal of office, this nine-
ington co. court, J teenth day of June, in the year of our Lord
Maryland. J one thousand eight hundred and thirtv-two.
O. H. WILLIAMS, Cllc,

W. C. C Md.



State of Maryland, Washington county, to wit:

I, John Buchanan, chief judge of the fifth judicial district of the
state of Maryland, composed of the counties of Frederick, Washing-
ton, and Allegheny, hereby certify, that Otho H. Williams is clerk
of Washington county court; and that the foregoing attestation by
him made, is in due form, and by the proper officer. Given under
my hand and seal, this 19th day of June, in the year of our Lord
one thousand eight hundred and thirty-two.

JNO. BUCHANAN, [seal.]

[Copy of a letter from William C. Drury to Edward Fitzpatrick,
dated

" Williamsport, 19th January, 1835.

Dear Sir: — I was at the post office when the mail arrived this
morning, and received your two letters. I immediately went home
to get the enclosed power of attorney, which is all complete except to
insert the name, which you may put in your own, or any other per-
son's, as you may think proper. If the boy is there, and Michael or
yourself can prove him, I wish you to spare no cost or expense to
get him. Do not be governed at all by the reward offered in the ad-
vertisement,* one of which I will direct Freaner to send you — I have
none with me. Your's, &c, W. C. DRURY."

" Write to me. Should you put your own name in the power, it
will want no alteration, which you had better do, if you think Michael
will be able to prove him. But should you have any fears of that,
you, perhaps, had better get some one else to act — and, in that event,
perhaps it will be necessary to make some alteration as to his resi-
dence. But do nothing of that sort without advice from your coun-
sel. In fact, I do not .know whether you dare make any alterations,
as it is now executed. Your's, &c, W. C. DRURY,"



[* Copy of the advertisement alluded to.]
"Stop the thief — 50 dollars reward. — Ran away from the subscri-
ber's farm, near Williamsport, on Saturday night last, a negro boy,
who calls himself Charles Brown, 18 years old, about 5 feet 9 or 10
inches high, not stout, but well proportioned; of a dark complexion,
and good countenance. Had on and took with him, one fine blue
cloth coat, half worn, white fur hat, do., one pair new drab corderoy
pantaloons, one black silk vest, one fine muslin shirt, one or two coarse
working do., one light drab home-made cloth short coat, one or two
pair of double threaded cotton pantaloons, one pair white cotton dril-
ling, one do. fine shoes, stockings, and other articles not remembered.
He rode away a sorrel mare, about 15 years old, with a white blaze
in the face, both hind feet believed to be white; paces and trots, and
when pacing, throws one of her feet a little out, as if stiff in the joint



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— an old saddle, much worn, snaffle bridle, with plated bit. The
above reward will be paid if taken out of the county, or $25 if taken
in the county, and all reasonable charges if brought home.

W. C. DRURY.

"N. B. A liberal reward will be given for any information that
may lead to the recovery of the above described runaway, or mare.
June 21, 1832. W. D. Bell, Printer, Hagerstown." On the back
of the printed copy of this advertisement, was the following letter:

" Hagerstown, January 20th, 1835.
" Mr. Edward Fitzpatrick,
" Dear Sir: — You will receive this hand-bill through the medium
of the post office, from which you will know whether the black boy
advertised or described in this be in your neighborhood. If so, any
information you may want, you can have by writing to me in Hagers-
town. This hand-bill I send you by request of Col. Wm. C. Drury,
of our county. Your's, &c, &c,

WILLIAM FREANER."

[The affidavit of Edward Fitzpatrick, drawn up by Mr. Dallas,
and sworn to before alderman Scully, and the recog. of E. Fitzpa-
trick and S. Kingston, each in $200 cond. to pay the expenses of
keeping, &c, according to the provisions of the 7th sect, of the act of
the 25th of March, 1 826, Purdon 656, was then offered by Mr. Dallas as
counsel for the alledged master, VV. C. Drury, and a motion made to
adjourn the further hearing of this case until Monday next, 2d Feb.,
1835, at 10 o'clock, A. M., at this place.]

State of Pennsylvania, Allegheny County,
City of Pittsburgh, ss.

Before the subscriber, an alderman in and for the said city, per-
sonally appeared Edward Fitzpatrick, who being duly sworn, saith
that he wrote to Wm. C. Drury, of Hagerstown, Maryland, the
master of Charles Brown, by yesterday's (Monday's) mail, request-
inf and urging him, the said William C. Drury, to come on imme-
diately to Pittsburgh, for the purpose of taking possession of his run-
away slave, Charles Brown: — that deponent has no doubt that Wil-
liam C. Drury will, in consequence of said letter, leave Hagerstown
by the next stage after the receipt of the said letter: — that the depo-
nent believes that the mail arrives at and leaves Hagerstown from
and to the west daily, and accomplishes its journey to this place (Pitts-
burgh) in two days: — that the said William C. Drury, should he re-
ceive said letter in the usual course of mail, will leave Hagerstown on
Thursday, and be in Pittsburgh on Saturday next. — Deponent further
states, that on this morning he wrote a letter to William C. Drury,
by a private opportunity, (Mr. Wm. Byrnes,) who goes directly on
to Hagerstown, and promised to deliver it to the said Wm. C. Drury
on his arrival at Hagerstown. — Deponent further states, that Wm. C=



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Drury is the principal, under whose power of attorney of the 19th
of June, 1832, the deponent has acted, in arresting and confining
the said Charles Brown; and that the said William C. Drury will,
as deponent verily believes, be enabled to produce satisfactory docu-
mentary proof of his title to the said slave.

EDW. FITZPATRICK.
Sworn and subscribed before me, ? r> a o , au

27th January, 1835. \ D ' S * ScuLLY > Ald '

Edward Fitzpatrick and Samuel Kingston, each tent, in the sum
of $200, conditioned that William C. Drury shall prosecute his
claim to the person and services of Charles Brown, the respondent,
on Monday next, at 10 o'clock, A. M. Taken and acknowledged be-
fore me, in pursuance of the acts of assembly in such cases made and
provided.

E. Pentland, Recorder of Pittsburgh.

McCandless and Hamilton opposed the continuance, on the addi-
tional grounds to what had been heretofore taken — that the affidavit
does not comply with the terms of the act of assembly — the adjourn-
ment must be to enable the party to procure " testimony material to
the matter in controversy." Sect. 7th. And further, the absence of
Drury is not material, for if he were here, he would not be heard;
the proviso of the 6th sect, declaring, " that the oath of the owner
or owners, or other persons interested, shall in no case be received
in evidence before the judge, on hearing of the case." Again, the
boy is entitled to a hearing instanter — he is not to be deprived of his
liberty in the first instance, and then time given to the master or owner
to procure the proof. He should have his proof ready at the time of
making the arrest. The affidavit is altogether insufficient — the di-
rections of the act of assembly ought to be strictly pursued. Even
in a civil case, the party arrested, and in custody, has a right to a
rule on the plff. to shew cause of action instanter — the deft, is not to
be held in custody, and deprived of his liberty, in order to afford the
plff. time to prove the nature of his demand, or cause of action. This
he should be prepared to do at the time of making the arrest — and if
he is not prepared, the defendant is entitled to his discharge, on com-
mon bail, at once. No time will be allowed. If the law is so strict
in civil cases, ought it to be more loose in criminal cases? for I do
consider this in no other light than as a quasi-criminal case.

Mr. Dallas in reply. — This is not a criminal, nor a g'wasi-criminal
case — far from it. It is a question of property, arising under the
3d sect, of the act of congress of 12th February, 1793. Story's
ed. Laws of U. S., vol. 1. p. 285. Gordon's Digest, p. 555: the
proceedings under which are regulated by the provisions of the act of
assembly of 25th March, 1826. Purdon's Dig. 654, 657. This is
the first and primary hearing — a hearing for the purpose of enquiry.
The arrest on Saturday was not in time to allow a hearing, and the

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case was properly adjourned till Monday, (yesterday,) and yesterday
the case, by consent of all parties., was adjourned till to-day. The
party is entitled to a continuance under the provisions of the 7th sect.
of the act of 25th March, 1826. If the party claiming the property
is "not ready for trial" — and the alledged "testimony can be procured
in a reasonable time" — these are the specific terms of the act of assem-
bly. The affidavit is sufficient, because the power of attorney being
now a material part of the case, it is material to the master to show
its proper and legal execution. Besides, the suggestions as to the
letter and power of attorney came from the Recorder himself, and not
from Brown or his counsel. This, therefore, is an application to
reach the conscience of the judge — to satisfy his conscience as to a
doubt which he has himself raised. In this case he act as a chan-
cellor — and what is the duty of a judge in such a case as this? Will
he not allow the party a reasonable time to procure material testi-
mony, to remove a doubt on his mind, suggested by himself, which
we did not come prepared to remove, and which we, by no possibility,
could have anticipated? This is, too, so far as regards the letter and
power of attorney, a preliminary question — because if the power of
attorney is worth nothing, the case is gone. We say it is good, and
I believe it to be good, and in strict compliance with the provisions of
the act of congress. But the chancellor doubts — and shall it be said
for a minute, that in a case like this, a question of property — because,
we may disguise it as we may, and talk as much about slavery and
liberty as we please — still it is nothing more nor less than a question
of property — shall it be said, that the claimant shall not have a rea-
sonable opportunity of procuring legal testimony to remove the doubts
of the judge as respects the validity of a legal instrument by which
that property is claimed? This is an application to the sound discre-
tion of the judge. We have substantially complied with the provisions
of the act of assembly — we have filed our affidavit, and given secu-
rity for the maintenance of the slave — we have done all we are bound
to do — and this is an application to the discretion of the judge, on ^pre-
liminary question, just as much as an application is to a judgf/to hold
to bail, on an affidavit of a bona fide subsisting debt, about '/he legal
execution of which he entertains doubts — which doubts the plff. craves
a reasonable time to remove.

By the Recorder. — I consider this as the first hearing of the case.
The production of the power of attorney, constituting Fitzpatrick as
the agent and attorney in fact of W. C. Drury, is a preliminary mat-
ter altogether; because, without this power of attorney, or with it, if
it be not properly and legally executed, according to law, the applica-
tion ends, and the respondent must be discharged. The 3d sect, of the
act of assembly of the 25th March, 1826, provides that applications
like the present must come, in the first instance, from "the person to
whom such labour or service is due, his or her duly authorized agent
or attorney, constituted in writing." The 4th sect, is still more ex-



11

plicit; because no warrant shall issue, according to the provisions of
the 53d sect., "unless the said agent or attorney shall, in addition to
his own oath o?' affirmation, produce the affidavit of the claimant of
the fugitive, taken before, and certified by the proper authority of the
state or territory in which the claimant resides, accompanied by cer-
tificates," &c. The power of attorney from Drury to Fitzpatrick
is dated 19th June, 1832, acknowledged same day before Jno. McIU
henny, Esq., accompanied by the affidavit of Drury, as to the elope-
ment of Charles Brown, describing his person, and declaring him a
slave for life, sworn to on the same day, 19th of June, 1832; to which
is appended the certificate of Otho H. Williams, Esq., clerk of the
county court of Washington county, certifying, under the seal of
the said court, that the said Jno. Mcllhenny, Esq., is a justice of
the peace, &c, and the certificate of Jno. Buchanan, chief judge of
the 5th judicial district of Maryland, comprehending the counties of
Washington, Frederick and Allegheny, certifying that the foregoing
attestation was in due form of law, also dated 19th June, 1832. This
power of attorney was acknowledged, it appears, in blank; was re-
cently enclosed by Mr. Drury to Fitzpatrick, from Hagerstown to
this place, and the blank filled by Mr. Fitzpatrick with his own name.
The suggestion as to this fact came from myself. Since this, the annex-
ed affidavit has been made, as to certain matters, by Fitzpatrick; and
surety entered for maintenance, &c, according to the provisions of
the act of assembly, on which the motion for a continuance is grounded.
I think the application, under all the circumstances of the case, a rea-
sonable one, and therefore order and direct the further hearing of this
case to be postponed until Monday next, at 10 o'clock, A. M., at this
place; and that the said Charles Brown be, in the meantime, remanded


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Online LibraryCharles BrownReport of the case of Charles Brown, a fugitive slave, owing labour and service to Wm. C. Drury, of Washington County, Maryland. : decided by the recorder of Pittsburgh, February 7th, 1835 → online text (page 1 of 7)