Imágenes de páginas

Booth objected. The Judge said she had made such an offer the other day, and persons of undoubted responsibility are ready now to take it, should she be of the same mind. Mr. Booth said she made the offer under trying circumstances; but she is now determined to contest the question as to a right to the child. Mr. Culver asked for an adjournment sufficiently long to enable them to send for Trainer. Mr. Booth said they would deny the right of Mr. Tappan to act for Trainer, and also deny the right of Trainer to the child. Mr. Tappan said he had authority from the father to act for him, and he now demanded of the woman to give him the custody of the child. The Judge said he would not interfere. Adjourned to Monday.

Mr. Tappan proceeded to the Jefferson Market Police Office : made an affidavit that Frederick Collier was attempting to kidnap the child. Justice Stewart issued a warrant for his arrest, and he was brought before the Justice. Under a threat of imprisonment, he told the Justice that Mr. Newhouse had the child. By the laws of this State, both Miss Cooper and Mr. Collier had been supposed guilty of kidnapping. Article Second, Revised Statutes, 3d edition, page 753, $ 34, it is said: "Every person who shall maliciously, forcibly or fraudulently, lead, take or carry away, or decoy or entice away any child under the age of twelve years, from its parent, guardian or other person having the lawful charge of such child, shall, upon conviction, be punished by imprisonment in a State prison not exceeding ten years, or by imprisonment in a county jail not exceeding one year, or by fine not exceeding over five hundred dollars, or by both such fine and imprisonment.” Mr. Collier was held to bail in the sum of $1,000, Mr. Newhouse being his bail. The Justice said the case should be attended to when both parties should be known, and no advantage would be taken of the absence of either at the hearing before Judge Duer. And yet, afterwards, he dismissed the case at the instance of Mr. Brady, while Messrs. Culver and Tappan were in Judge Duer's court.

May 23d, before Judge Duer, Mr. Brady read the return of Rose Porter, setting forth that Lewis Tappan, professing to act for Charles Trainer, is an intermeddling and reckless man, not worthy to be intrusted with Jane; that the said Tappan recently made affidavit that this respondent had kidnapped the said Jane, which statement was also utterly false, &c., &c. He then raised the point that the Judge had no jurisdiction in the case. Mr. Culver, looking at the return, said that the woman signs this by the name of Rose Cooper. She has signed a paper at the Tombs by the name of Rose Porter. Trainer having returned from Dunkirk, was again examined as a witness. Captain Isaiah Rynders appeared to-day with a strong force at his back. After the

At the hearing on the 26th, Trainer refused to appear. The Judge said he should dismiss the case, but afterwards determined to send two officers to Trainer to assure him of the protection of the court, and that he need not fear to come. It was with difficulty that he was found. In the afternoon he appeared, and the case was resumed; and he testified to his having been allured across the ferry under the pretense that a friend of his was there; of his being waylaid and beaten by villains; and of his flight to Dunkirk to escape from threatened assassination. Jane was examined by the Judge, but not on oath, as she did not appear to understand it. She said she wanted to stay with “Missis," and did not want to be free. She could not have answered more readily on this point. She had been trained to it. She stated that she always had been called Jane Trainer; that her mother's name was Emma Trainer; and that Charles Trainer there (pointing to him) was her father. Mr. Brady said that Miss Porter did not now impose any restraint upon the child, nor interpose any force to prevent her being taken. Mr. Culver replied, that if this was so, all they asked was, that the father might be permitted to go up and take his child by the hand and lead her away. Mr. Brady replied, significantly, “If they take my advice, they will refrain from attempting any such thing. If force is used, it will be repelled by force under my advice." Rynders sat between the Judge and Mr. Brady, and his followers were near, in and around the court-room.

On the 28th, Mr. Culver presented his view of the case at length, adducing numerous authorities, commenting upon the testimony, and replying to his opponent. On the 30th, Judge Duer gave an oral opinion, adverse to the claim of the father, on the ground of want of jurisdiction! It had taken him several weeks to ascertain this. The Tribune remarked in view of it, “Well; we are bound to presume there was no law adduced sufficient to give that child to her father, but we can't help believing that, had the father been a white man and the harlot a black woman, there would have been law found or made to compel her to give up the child-yes, and we believe Judge Duer would have found it.” Mr. Culver remarked to the Judge that the writ had been issued at the suggestion of the Judge himself. The Judge replied that he was aware of it, but he had been mistaken, &c.! Mr. Brady said Miss Porter was willing to give the custody of the child to Mr. Newhouse. Mr. Culver objected, alluding to Mr. N. as not being a proper person. He had been gallanting her; was her bondsman, &c. Mr. Brady, after being spoken to by Mr. Tappan, said the child might be put into the custody of Mr. Lynch, the Clerk of the Court, but this was afterwards declined. The Judge said that the child might go where it pleased; but he would not permit Charles Trainer to go and take her against her will. It clung to its Missis. The Judge said he thought Miss Porter had been badly advised. She left the court-room with an air of triumph, under the escort of her friends and the Rynders Guard.

June 6th, an application for an injunction to restrain Rose Cooper from taking the colored child out of the State was made in the special term of the Supreme Court, before Judge Barculo, at Brooklyn. E. D. Culver, Esq., appeared on the part of the plaintiff, Charles Trainer, and James T. Brady, Esq., on that of the defendant, Rose Porter. The Judge expressed his great surprise that the child had not been delivered over to her father on the habeas corpus proceedings, intimating most significantly that on a habeas corpus he should deliver it to the father; and expressed his astonishment that the father or his friends had not gone at once, and, in presence of Judge Duer, taken the child. The learned Judge was not aware of the strong force under Capt. Rynders that had been present, to prevent O. Trainer from taking away his child.

On the 7th June, Judge Barculo issued a habeas corpus to bring up Rose Cooper and the child. A deputy sheriff undertook to execute the mandate. He went to Sheriff Orser, of New-York city, under a mistaken notion of jurisdiction, who sent one of his deputies to aid the deputy from Kings county. The woman and child were found at 101 Mercer street, placed in a carriage, and taken to the office of Mr. Brady. The carriage was then sent off and returned with Captain Rynders, who was followed by fifty or more of his friends. The Brooklyn officer wished to take the child before the Judge, but was resisted by Orser's deputy, who had got possession of the writ, and refused to give up the child. Orser then interfered, and rescinded the power which he had just conferred upon the Brooklyn officer, and the latter went home empty-handed. Attachments were immediately issued by Judge Barculo to bring Rynders, Rose Cooper, and Cromley (Orser's deputy) before him to answer to their defiance of law.

The officer brought Rose Cooper and Jane into court the 8th. Mr. Brady read affidavits by Rose Cooper and Deputy Cromley, in explanation of their conduct. The Judge saw nothing in Miss Cooper's conduct in this matter, amounting to contempt of court; but he thought there was something wrong about the deputy. He should inquire into it, and if there was cause, inflict exemplary punishment. Mr. Culver requested that the child should be taken from the New-York officer, and assigned to an officer of Kings county. “We mean," said Mr. Culver, " that the child, once here, shall never cross the river to New-York again with Rose Cooper.” Mr. Brady opposed. The Judge ordered the child transferred to the keeping of the Sheriff of Kings county, saying, “ as he is bound to obey.” Another attachment was granted against Captain Rynders. The affidavit of Mr. Hegeman, deputy of Kings county, was read, in which he narrated the violent proceedings against him. Captain Rynders appeared and requested leave to make a statement.

Mr. Culver proposed to examine Charles Trainer. Mr. Brady objected, but was overruled. Jane was afterwards examined, though not on oath. Said she did not want to see her father; that she was locked up at 101 Mercer street; that she was afraid of the Abolitionists, as they wanted to steal her away, and keep her, and not give her any thing to eat! Captain Rynders afterwards stated that he was “accustomed to aid the officers in enforcing the law;" that in this case he “misapprehended the matter;" " supposed that Judge Barculo was a county judge, who had no jurisdiction in the city of New-York," &c., &c. The Judge warned and admonished him. He advised him to keep away on such occasions, as the law could be enforced without his aid; and he had heard that persons in New York sometimes attempted to overawe courts of justice, but he had not been accustomed to see such unlawful interference: if he was not more careful in future, he would get into trouble. He should not permit it here. He then allowed Rynders to depart. Both Rynders and Brady evidently felt the rebuke.

Messrs. Brady and Culver, on the 9th, argued the case at length. The Judge reserved his decision until the 13th. He stated that he could not dispose of the case of Deputy Sheriff Cromley at present. His impression was, that he had been guilty of improper conduct. June 13th, the courtroom was thronged. Judge Barculo read his opinion. It was an able document, and was listened to with profound attention by the bar and a large concourse of citizens. It was pleasant to see so large a number of welldressed and intelligent people of color present. He first replied to the points of law raised by Mr. Brady, showing that he had jurisdiction of the case; that Trainer had a right to the child, and that he should order her to be delivered to him. While he was reading, the child, probably induced by the woman Cooper, who held her with both hands, began to cry. The Judge, after pronouncing his decision, directed the Sheriff to deliver Jane to her father and to accompany them. He did so. Charles and his friends left the court-room. The Sheriff requested them to go to his office, but Charles took his little daughter up: she soon stopped crying, put her arm around her father's neck and kissed him.* He, instead of accepting the Sheriff's invitation, proceeded to Dr. Pennington's house,t with his child in his arms, followed by a large number of colored friends, who thanked God there was an upright judge in Kings county, and that he had had firmness to give a righteous decision in this long-contested and important case.

The Judge has done himself great honor. He is an able jurist. However high he may ascend the ladder of fame, said a New-York lawyer who was present, “No act of his life will probably contribute so much to his elevation as his conduct and decision in the Trainer case." There were several excellent points in the decision worthy of the attention of pro-slavery judges, lawyers and politicians. While the friends of freedom are joyful at the result, render the meed of merit to the Tribune, Evening Post, and Independent, and the counsel for Trainer, and give praise to the God of the oppressed, they cannot but reflect with mortification upon the conduct of certain judges, officers, attorneys, reporters, and editors, aided by notorious rowdies, in an audacious and persevering attempt to allow a notorious courtesan to march through this city with a young female kept from her lawful parent, to reënslave or bring up in infamy. To her it may be said, in the language of a Quaker lady to the pursuer of a fugitive, "Thy prey hath escaped thee!"

JUDGE BARCULO'S DECISION. SUPREME COURT-SPECIAL TERM. Before Justice Barculo.---The People ex rel.

Charles Trainer vs. Rose Cooper, Respondent. E. L. Culver for Relator;

James T. Brady for Respondent. In this Court, yesterday, Justice Barculo rendered the following decision :

The case comes before the Court on the return of the respondent to a writ of habeas corpus, sued out by the relator to obtain the custody of his infant child. Upon its merits, when divested of those extraneous circumstances which have given an unnatural interest and notoriety to the matter, it is very plain and simple. But several nice and highly important legal questions have been presented and argued by the learned counsel, which it will be proper first to consider.

* Mr. Trainer has since informed us that Jane says she was whipped to make her keep back from her father, and cling to Rose Cooper. So we have the lash of the slave-mistress in the city of New-York, and almost under the eye of the court from whom protection is sought!

+ Dr. Pennington during the whole proceedings took an active part, and contributed essentially to the success of Mr. Trainer. Other colored friends also were constant in their attendance and unremitting in their labors.

I. It is contended by the counsel for the respondent, that the power of awarding a writ of habeas corpus by this Court can be exercised only at a General Term. Reliance is had" upon the statute, which requires the application to be made,

2. During any term or vacation of the Supreme Court, to the Chancellor, or any one of the Justices of the Supreme Court, or any officers who may be authorized to perform the duties of a Justice of the Supreme Court at chambers, being or residing within the county where the prisoner is detained.

This precise question came before the Court under our former system, when special terms were held for the transaction of certain non-enumerated business ; and Chief Justice Savage expressly decided that the writ could be issued by the Court at Special Term. (Exc parte Beatty, 12 Wen. 229.) It is hardly necessary to add that, under our present system, much greater powers are given to the Special Term; for we possess not only the general powers of the old Supreme Court, but also the entire powers of the former Court of Chancery; either of which courts had, without the aid of any statute, at the common law, jurisdiction over habeas corpus.

II. Again, it is insisted that a single Justice, sitting in Kings county, has no authority to send the writ into the city of New York. This argument is based upon the supposition that the writ was issued by the Justice, and not by the Court, which is unfounded in fact. But if the fact were as supposed, the argument would nevertheless be fallacious. For a Justice of this Court can, at chambers, award a writ of habeas corpus that shall run into any part of the State. This point was before Justice Harris, in the People vs. Samuel Hanna, 3 How, Pr. Rep. 39. He then held that the limitation contained in the words “being or residing within the county," in the statute above cited, which is relied on by counsel, applied to the last preceding class of officers, "authorized to perform the duties of a Justice of the Supreme Court,” leaving to the Justices of the Supreme Court the same unrestricted jurisdiction as they possessed under the previously existing statutes. In that case a writ was allowed by Judge Harris, sitting in Albany, to bring up a person detained in Columbia county. So also in the People vs. Woodruff, 3 How, Pr. Rep. 32, Justice Willard allowed a writ at his chambers in Saratoga Springs, returnable before the County Judge of Washington, to bring up a prisoner in the latter county. So in the familiar case of the People vs. Mercein, p. 55, the Chancellor, sitting in Saratoga Springs, brought before him a child from the city of New-York. It may be added that these decisions are in entire conformity to the practices of the Judges of this Court.

recently been heard before Judge Duer, of the Supreine Court of the city of NewYork. Two answers may be given to this proposition. First: The case does not stand upon the same state of facts; for the relator has given evidence of restraint having been exercised since the former proceeding. Secondly: That learned and accomplished Judge doubted his authority to make an order disposing of the custody of the child. That doubt probably controlled his decision, and may have been well founded as applied to the Judge of a court of limited jurisdiction, and clothed with no general equity powers. Upon this point I quote from the opinion of Judge Duer the following: “I certainly concur with the learned counsel for the respondent, that I am not sitting here as a Judge in equity, clothed with their large discretionary powers in relation to the disposition and custody of infants

competent and has long since been accustomed to exercise. Powers just as extensive, I doubt not, were vested in our late Court of Chancery, and if so, by force of the new Constitution, have been transferred to, and are now vested in, the Supreme Court of the State. But they do not belong to me either as a Supreme Court Commissioner, or as a Judge of the Superior Court. I cannot, therefore, exercise the discretion which they confer, even would I be gratified in acting at the same time and in the same proceeding in a double capacity. The Supreme Court, as succeeding to the entire jurisdiction of the Chancellor, is the general guardian of infants, and as such has an exclusive right to determine all questions in relation to their disposition and custody, except where the questions

« AnteriorContinuar »