Henry vs. Lowell and others, 16 Barb. 268

By the Court, Gridley, J. I. It is insisted in the printed points, submitted by the plaintiff’s counsel, that the act of congress known as the fugitive slave act, is unconstitutional and void; and therefore that the defendant cannot justify under it. It is not, however, explained in what respect, or on what grounds the act in question is in violation of the constitution. The former act (of 1793) was adjudged to be in harmony with the constitution, in the case of Prigg v.

The Commonwealth of Pennsylvania, (16 Peters, 539,) by the highest tribunal known to our law, and that decision has been reaffirmed in the 5th of Howard’s Rep. 215. No important distinction has been pointed out by the counsel between that act and the law of 1850, and we do not perceive any bearing on the question of its constitutionality.

In several cases that have occurred, the provisions of the present law have been drawn in question, and the act has been declared constitutional, by Justice Curtis and Justice Nelson of the supreme court of the United States, by the supreme court of Massachusetts, and by other eminent judges before whom the question has been raised. This uniform current of authority, may well excuse us from a discussion of the question upon principle. II.

It was not necessary to give other evidence than that furnished by the process of the court, valid on its face, for the protection of the officer and those acting in his aid, to justify the arrest. (Savacool v. Boughton, 5 Wend. 150.) III. It is said that the justice erred in not submitting to the jury the question of excessive force. I have carefully read over all the testimony on the subject, and I perceive no evidence of excessive force.

It is true that the plaintiff was confined by irons, after several violent acts of resistance, and attempts to escape; and his clothes were somewhat torn, and his person injured; but it must be remembered that the injuries complained of were committed on a recaption after one escape; and in efforts to overcome resistance, and to prevent another escape which the plaintiff was striving to effect.

The onus was on him to prove that the force was excessive, taking into view all these facts; hut we do not perceive that more force was employed than was necessary; and there was not enough to prevent a final rescue! [Oswego General Term, April 3, 1853. Gridley, W. P. Allen, Hubbard and Pratt, Justices.] IV. The refusal to allow the plaintiff to re-open the case after the defendant hadvrested, was within the ordinary discretion of the justice presiding at the trial; and no facts are proved showing that this discretion was abused.

On the whole we see no errors committed by the justice which call for a new trial of the case. Judgment affirmed.