George W. Minns, Esq., Counsellor at Law.—I was in this court room between one and two on Saturday,—saw Mr. Davis was here. Including the officers and counsel, there appeared to be about a dozen persons in the court room, when I was admitted. Heard Mr. Riley say the prisoner would be allowed to see his friends from time to time, and every thing reasonable done to make his situation comfortable. Saw Mr. Davis—his manner was calm. He remained so till an incident occurred. Some person behind where I was sitting said something, concluding with the remark, "Kill the negroes!" I thought the remark came from Mr. Byrnes, but I don't know. Mr. Davis, at the time, was walking from the table to me, and heard it. He was irritated by the remark, and said—"Then, on that principle, you ought to have your throats cut." Mr. Byrnes and another officer were behind me. I was sitting within the bar, next to the railing, which was between me and Byrnes and the other officer. I know Mr. Byrnes' voice, and am able to recognize it, and I thought at the time that it was he who made the remark, but I cannot swear. It was not very loud, and I did not turn round to look at Mr. Byrnes. I didn't think from the tone, that the remark was made by one who intended to kill the negro, but I thought it was made for the purposeof irritating or insulting Mr. Davis. My attention was chiefly occupied in looking at the prisoner.
Frederick Warren, deputy marshal. I left the court room about five minutes before two o'clock—went down stairs—came back by the passage up to the supreme court—went to the closet, and there heard the shout; came out of the closet; found the crowd more dense than five minutes before, and the door being pulled and vibrating; proceeded to the city marshal's office, to notify the marshal, who said he could do nothing. I told him the crowd was forcing the door. I think I saw a white person near the corner of the recess, when I entered the closet. When I got back from the city hall, the rescue had been made.
[The object of Mr. Warren's testimony was to show that it was he, and not Mr. Davis, who was seen in the passage, and to go into the court room a few minutes before the rescue].
Elizur Wright,one of the editors of the Commonwealth,—I was in the court room on Saturday,—I came about half past one,—I had previously been at the Adams House, attending a meeting of the proprietors of the Commonwealth. I met some reporters coming out of the court room, when I got to the door. The officers refused to admit me. I said I was connected with the press, and was soon admitted. I saw Mr. Davis, but was not acquainted with him. Did not know his name. Understood they had been examining papers. Had no conversation with Davis, except what I now state. I got into a little difficulty with Mr. Riley, by supposing him to be the counsel for the claimant. Mr. Davis then told me that Mr. Riley was the deputy marshal. I said to some of the people, that there were not many persons outside, and I may have said so to Mr. Davis. When Mr. Davis went out, I was just about where Mr. List is now sitting, in front of the clerk's desk.
At this stage, the court adjourned till Monday.
Monday, February24.—Mr. Commissioner Hallett resumed the examination at 10 o'clock.
Elizur Wrightrecalled. I was in the court room fifteen or twenty minutes. It was perfectly impossible that Mr. Davis could have gone out and come in again without my knowing it.
Cross Examined.Mr. Sewall stated to me thequo modoof the arrest. About half the time I was in there I was occupied in explanations with Mr. Riley, after the altercation which arose from my mistaking him for the counsel for the claimant. The explanations resulted in his giving me permission to speak to Shadrach. I then shook Shadrach by the hand, and spoke a few words to him. While Mr. Sewall was telling me that he thought a good defence could be made for Shadrach, that there would be a probability of his getting off upon the proof, there were two or three persons standing about, and some one of them said there might be an interference on the part of the colored people. Mr. Sewall said that would be perfectly ridiculous, and I said so too. It was in that connection, I think, that I said there were but few persons outside. I had come from a meeting of the persons interested in the Commonwealth.
Mr. Lunt—Are you one of the editors of the Commonwealth? [Witness did not answer, but smiled].
Mr. Dana—I object to the question, and ask the purpose of the district attorney in proposing to put in anything in relation to the connection of the witness with that newspaper.
The Commissionerremarked that the inquiry was irrelevant, unless the district attorney expected to show from it a bias on the part of the witness.
Mr. Wrightnow, without any further questioning, stated that he was one of the editors of the "Commonwealth." The conversation was about the possibility of the colored people taking it quietly. Mr. Sewall said, I hope there will be no violence.
Richard H. Dana, Jr.was called to the stand by Mr. Davis.
[Mr. Dana said that when he entered upon the case, he did not suppose he should be a witness, or he would have declined acting as counsel.
The Commissioner.There is no impropriety in it in a preliminary inquiry; and in your case, never.]
On Saturday morning, Mr. Davis called at my office and told me that a man had just been arrested as a fugitive slave, and was before the Court, and proposed that we should offer our services as counsel. I asked if he had counsel. Mr. Davis said it was a sudden arrest, and a case for volunteers. We went over to the Court Room. The Court was in session. There was a division of labor. It was agreed that I should take charge of the Habeas Corpus and of a writde homine replegiando, and Mr. Davis was to remain and assist at the hearing. I went to the Marshal's office, and there drew up a petition for a habeas corpus, and filled out a writde homine replegiando. Deputy Marshal Warren was present. I left word with the counsel to send me down some one to swear to the petition in the prisoner's behalf. Mr. Morris came with Mr. Loring and swore to the petition. I then went to Chief Justice Shaw, and asked for the writ. He refused it, for reasons which he gave. I returned to the Court Room, reported my proceedings to the counsel, and prepared to obviate the objections of Judge Shaw. Mr. Davis knew of all these proceedings. Just then Mr. Curtis adjourned the Court to Tuesday. Finding that there was to be no hurrying, I agreed with the counsel, (including Mr. Davis.) to meet them in consultation at 3½ P.M., at Mr. Sewall's office. Bespoke a copy of the warrant from Mr. Riley, and returned to my office. A little after half past one, I received a message that, by the Marshal's permission, the counsel were to remain awhile in the Court Room for consultation, and wished me to join them there. I sent word that I would come immediately. I was accidentally detained, by a client, until nearly 2 o'clock, and, in the interval, the rescue had taken place.
To Mr. Lunt.I heard some conversation from people of all opinions, in the way of conjecture or inquiry as to whether the blacks would resort to force, but nothing in the way of advising or planning such a course.
Mr. Lunt.Can you say that none of those who acted as counsel here, spoke of it?
Mr. Dana.I can say, most positively, that I never heard one of the gentlemen who acted as counsel here, say any thing in the way of advising or planning a resort to violence, or that indicated any knowledge or belief on their part that it would take place.
Mr. Lunt.Did you attend the meetings at Faneuil Hall in October, relating to the Fugitive Slave Bill?
Mr. Dana.One I did, the other I did not. I do not recollect the dates. When I attended, I read a letter from President Quincy, at the request of one of his family. That will fix the date.
Mr. Lunt.Did you speak at that meeting?
Mr. Dana.I object to these questions as matter of right. I am not obliged to answer them. But, personally, I have no objection to answering them.
Mr. Lunt.I think it would be a satisfaction to the community to know from yourself how the matter stands as to these meetings.
Mr. Dana.On that ground, I have no objections to answering. I did not speak at this meeting, for reasons of my own. For the same reasons I did not attend the second meeting. I wrote a set of resolutions, which I believe were adopted. These I am ready to stand or fall by.
The Commissioner.I read them. They were unexceptionable.
Mr. Dana.Unexceptionable in a legal view; but your Honor could not agree to the opinions expressed. After the meeting had adjourned, as I was informed, (and as it was stated in the papers,) a resolution was put, and declared by the crowd to be passed, but it was irregular and not noticed by the officers. That resolution was objectionable, in my opinion. But in none of the meetings or consultations I have attended, have any of the gentlemen recommended or suggested use of force against the law. The private meetings have related to the use of legal defences and modes of raising and presenting constitutional questions, and have been composed of lawyers, almost, if not quite, exclusively. The opinions of the defendant, so far as I know, are the same as mine. He believes the act unconstitutional and unjust, and will give it no voluntary aid, but will not recommend or join in forcible violations of it. I am willing to say this, since we have got upon the subject, although it is not testimony.
Charles H. Brainard.I have heard Mr. Byrnes' reputation for truth and veracity spoken of, but not until these trials had commenced.
Charles C. Conley.Had heard Mr. Byrnes' truth, &c., spoken against for some time back.
Charles Meadexamined on same point, but did not testify definitely.
Mr. Dana to Mr. Lunt.It was in the lobby that I saw Chief Justice Shaw in relation to the habeas corpus. I came into the court room and reported the result to the counsel. It was after the proceedings before the Commissioner were over.
To Mr. Davis.My impression is that I saw some of the crowd enter the door on the west side of the building after I heard the yell in the Court-House.
Mr. Dana here proposed to put in the testimony given by Mr. Davis on the examination of Mr. Wright, on the ground that the government had asked Mr. Clark whether he heard Mr. Davis's testimony in Mr. Wright's case, and he had stated a portion of it.
Mr. Lunt objected.
Mr. Dana said the government had put it in either as conversation or as confession. In either case the defendant was entitled to the whole of it, under the general principles of evidence.
The Commissioner.You may put in all that part of Mr. Davis's testimony which concerns the statement of transactions which Mr. Clark testified that Mr. Davis said, but no more.
Mr. Dana then read a small portion of Mr. Davis's testimony, and said he should rest his defence for the present.
J. S. Prescott, recalled by the government.—I recollect seeing Mr. Warren in the passage-way after the man was carried down stairs; but he was not the person I saw before the rescue, and who went in by the door next to the Marshal's desk. That man spoke to one of the colored men. I also saw a man come out of that door, go into the closet, and return into the court room by the same door.
Cross-ex.I saw Mr. Warren start on the run down stairs. Saw Mr. Neale too. I said to him—"What, have they rescued the man?" and he said they had. He appeared agitated. At the time I spoke to Mr. Neale I knew they had taken the negro out. I spoke to Mr. Neale because I took him for an officer. I was at the Court House to see a Mr. Pearson in the Supreme Court.
After the rescue I had some conversation in Court Square on Saturday afternoon with Mr. Simon Hanscom, a reporter. I did not tell him I was in the Court Room; but told him I was present when the crowd rushed in. I knew that several people saw me there. I had been told I had been seen there. I felt it to be my duty to tell Mr. Riley what I knew about the proceedings, as I regarded it as outrageous. I may have said in one sense, I was glad the man had got away, so far as he was concerned. I gave notice first to Mr. Riley of what I knew. I expected to be called as a witness. Knew that it was known I was here. Think I should not have spoken to Mr. Riley if I had not known that I had spoken of having been here. I do not exactly approve of the law, for I think there might be a trial by jury; but so long as it was the law, I did not want to see it put down in the manner it was. Some one pointed me out to Mr. Hanscom, as a person who saw the whole of it. I was laughing about it. Mr. Hanscom called me aside. I could not help laughing. My conversation with Mr. Hanscom was a very short one. I think I said something about mob law. Mr. Hanscom tried to get me to talk more; but knowing him to be a reporter, and the paper he was reporter for, I did not say much to him.
To the Commissioner.The person I took to be Mr. Davis, in the passage, had spectacles, I think, and had his hat in his hand. I did not think there was a rescue intended until they drew the man out. I supposed the negroes, in trying to get the door open, only wanted to get in and see the trial. A few minutes before, in the street, I had been told that there was a slave case on trial in the U. S. Court.
Mr. Sawin, recalled. When Mr. Davis said we all ought to have our throats cut, he spoke to me. Mr. Byrnes had said nothing about killing the negro. I heard no such remark from any body. I saw Mr. Minns in the room.
The Commissioner.Why didn't you report the remark of Mr. Davis to the Commissioner?
Mr. Sawin.I did not think enough of the remark to report it to the Commissioner. I was friendly to Mr. Davis, and had known him a long time.
Cross-ex.It was a private remark.
James H. Blake, late city marshal, Geo. Woodman, Nathan Hyde, John S. Phillips, and F. L. Cushman, Custom House officers, were then called to testify concerning the character of Mr. Byrnes. They had known him casually, and had never heard any thing said about his character.
Robert McGill, Brigham N. Bacon, Levi Whitney, Geo. W. Barker, and M. C. Woodman, of the Merchant's Hotel and Exchange Coffee House, testified that they had known him as frequenting their houses several years, and never heard his character called in question.
R. M. Kibbe, keeper of a billiard-room and eating-house, Joseph Cochran, keeper of a restaurant, G. L. Gilbert, late of California, previously a dealer in spirituous liquors, J. G. Smith, wholesale wine and liquor dealer, Henry Gilbert, dealer in ale and liquors, and Daniel Leland, Jr., vinegar manufacturer, had known Mr. Byrnes as a customer several years, and have not heard his character for truth questioned.
Sylvanus Mitchell, Richard Nutter, —— Gilbert, and James H. Mitchell had known him in Bridgewater 15 or 20 years ago, but had never been intimate with them. Not known much of him of late years, and had not heard his character for truth questioned.
George W. Phillips, attorney at law, had known Byrnes several years as an officer, and had never heard his character called in question until within a week.
John L. Roberts, a mason, had known Byrnes by name for a year, but had never heard him spoken of.
Richard Hosea, constable, testified that his character was good as far as he knew.
John Roberts, book-binder, had known him several years, not as an acquaintance or neighbor, and had never heard his character doubted until last week.
Samuel G. Andrews, a printer, living in Somerville the last year, had met him 4 or 5 years, occasionally, and had never heard his character questioned.
Robert T. Alden, sail-maker, had known him 10 years, never heard his character for truth doubted.
Cross examined. Had met him at balls and assemblies, had known him as a constable, plumber, and keeper of Cape Cottage.
It appeared from cross examination of the other witnesses, that Mr. Byrnes had also been known as a farmer, iron founder, tack maker, sailor, keeper of a restaurant, keeper of a bowling alley, real estate broker, grocer, and deputy marshal. None of the witnesses had been his neighbors since he left Bridgewater.
Elisha P. Glover, officer in the employ of the marshal. Had never heard Byrnes' character called in question until a year ago, don't recollect hearing it spoken of since then. Did hear one of the witnesses speak of it a few days after. Was a witness for Byrnes at that trial.
Simon P. Hanscomwas now called for the defence, and stated that he was one of the reporters for the Commonwealth. He was called for the purpose of proving that Mr. Prescott, one of the government witnesses, had stated that he saw what was done in the court room at the time of the rescue. A short time after the rescue, he saw Mr. Prescott in the street, and, in his capacity of reporter, applied to Mr. Prescott for information, he having stated that he saw the rescue and knew all about it. He supposed at the time Mr. Prescott gave him the account, that he was relating what he had seen only. This was his conclusion at the time, and, the question having been raised, he was not now able to separate the hearsay statements made by Mr. Prescott, from the facts which he stated upon his personal knowledge. Those statements differed from the observations of Mr. Wright, who was in the court room, particularly in reference to the knocking down of officers, &c., which Mr. Wright said did not take place. Prescott said there were officers knocked down at the door, that one colored man knocked an officer under the rail of the bar, and another took the sword and brandished it in the room. Mr. Davis, who was inquired of on that point, said that there were no blows struck. Don't know what part of the transaction Davis spoke of. Therefore the information he received from Mr. Prescott was not used in making up the account of the rescue which was given in the Commonwealth "extra" published on Sunday morning.
Cross examination.Mr. Prescott said it was well done, and he appeared verymuch pleased, as many others did. I was also very much pleased at the escape; and am always gratified at a person's gaining his liberty. He had no recollection of expressing any approbation of the manner of the rescue. I am not in favor of violating the laws. I should have been very glad if Shadrach had not been arrested.
Mr. Lunt.Is Mr. Davis often at the office of the Commonwealth?
Mr. Hanscom.I have seen him there once or twice before the rescue, and once since.
The evidence was here announced to be closed on both sides, and the court was adjourned to Tuesday, 10 o'clock.
Mr. Dana then Addressed the Court, as follows:
May it please your Honor:
Certainly, Mr. Commissioner, we are assembled here, this morning, under extraordinary circumstances. I am not aware that since the foundations of our institutions were laid, since we became an independent people, since the Commonwealth of Massachusetts had an independent existence,—I am not aware that a case similar to this has once arisen. I do not know that ever before in our history, a judicial tribunal has sat, even for a preliminary hearing, upon a gentleman of education, a counsellor of the law, sworn doubly, as a Justice of the Peace, and as a Counsellor in all the Courts, to sustain the Constitution of the United States and the laws made in pursuance thereof,—a gentleman of property, family, friends, reputation, who has more at stake in the preservation of these institutions than nine in ten of those who charge him with this crime;—who stands charged with an offence (in the construction now attempted to be put upon the statute) of a treasonable character, a treasonable misdemeanor, an attempt to rescue a person from the law by force, an attempt to set up violence against the law of the land.
Therefore it is that this trial attracts this unusual interest. It is not that, so far as this defendant is concerned, the question whether he be bound over here, or whether the District Attorney takes his case directly to the Grand Jury, can make the slightest difference in the world; but because the decision of this tribunal, though only preliminary, will have great effect upon the community, and will be carried throughout the United States. It is because of the political weight attached to it, that such anxiety is felt for the result. For the simple rescue of a prisoner out of the hands of an officer, is a thing that occurs in our streets not very unfrequently, and often in other cities. It might have occurred up stairs, and not have attracted a moment's attention.
Who, Mr. Commissioner, is the defendant, at the bar? I have said that he is a Justice of the Peace, sworn to sustain the laws, a counsellor of this court and of all the courts of the United States in this State, sworn doubly to sustain the laws. He is a gentleman of property and education, whose professional reputation and emolument depend upon sustaining law against force; a man whose ancestors, of the ancient Pilgrim stock of Plymouth, are among those who laid the foundations of the institutions that we enjoy. He has at this moment so much interest in the way of personal pride, historical recollections, property, in family, reputation, honor and emolument in these courts—so much at stake as to render it impossible to believe, except on the strongest confirmation, that he should be guilty of the offence charged against him at this moment.
The charge against the defendant involves the meanness of instigating others to an act he dares not commit of himself, of putting forward obscure and oppressed men, to dare the dangers and bear the penalties fromwhich he screens himself; meantime holding up his hand and swearing to obey the laws of his country which he is urging others forward to violate.
Since, then, my friend has done me the honor to ask me to appear for him before this tribunal, from among others so much better qualified, I feel that I am placed in circumstances calling for some allowance, some liberty for feeling and expression. We think ourselves happy that in this State trial, this political State trial, we appear before one who has been known through his whole life as not only the advocate of the largest liberty, but the asserter and maintainer of the largest liberty of speech and action, at the bar, in the press, and in the forum, carrying those ideas to an extent to which, I confess, with my comparative conservatism, I have not always seen my way clear to follow. Therefore, I shall look for as large a liberty as the case will allow me in addressing myself to this court; in bringing forward all considerations, in suggesting all possible motives, in commenting upon all the circumstances that lie about this cause. At the same time I shall expect from the person who sits clothed with the authority of an Executive whose will is as powerful as that of any sovereign in Christendom, except the Czar of the Russias—I shall expect from him no unnecessary interruptions, no extraordinary appeals, no traveling out of the usual course of a simple judicial proceeding.
Why is it that the defendant stands here at this bar a prisoner? How is this extraordinary spectacle to be accounted for? I beg leave to submit that the whole history is simply this. There has been a law passed in the year 1850, by the Congress of the United States, which subjects certain persons, if they be fugitive slaves, or whether they be or not, subjects them to be arrested and brought into Court, to have the question of their liberty and that of their seed forever, tried by a so called judicial tribunal. Those persons are mostly poor. They belong to an oppressed class. They are the poor plebeians, while we are the patricians of our community. They are of all the people in the world those who most need the protection of courts of justice. I think the court will agree with me that if there is a single duty within the range of the duties of a counsellor of this court which it is honorable for him to perform, and in the performance of which he ought to have the encouragement of the court, it is when he comes forward voluntarily to offer his services for a man arrested as a fugitive slave. Therefore it is that I think it somewhat unfortunate the District Attorney should have thought it necessary to arrest counsel. If there be a person against whom no intimidation should be used, it is the counsel for a poor, unprotected fugitive from captivity.—The question is, whether a man and his posterity forever, the fruit of his body, shall be slave or free. It is to be decided on legal principles. If there is a case in the world that calls for legal knowledge and ability—that calls for counsellors to come in and labor without money or price, it is a case like this. I think it a monstrous thing, unless it be a case beyond doubt, that counsel should have been selected to be proceeded against in this manner.
I take the facts to be these:—Mr. Davis, being a counsellor of this Court, and possessed of no small sympathy for persons in peril of their freedom, when it was known that a person claimed as a fugitive slave was arrested, and in a few hours, perhaps, to be sent into eternal servitude, Mr. Davis steps over to my office and suggests to me that we offer our services as counsel. He leaves his business, which is large, while five courts are in session in this building. He sits here that whole Saturday forenoon by the prisoner, to whom he is recommended by Mr.Morton. He is twice spoken of to Mr. Riley by the prisoner, as one of his counsel. He sits from eleven to two o'clock, absorbed in this case, his feelings necessarily excited, (and I should be ashamed of him if they were not excited,) but his intellectual powers devoted to the points of law in this case, and your Honor knows that the points are various and new. By the courtesy of the Marshal, the counsel were permitted to remain here, because the Marshal had not yet determined where to keep his prisoner. They remained until the time for the prisoner's meal. When the business is over, they leave. Some one must go out first, and somebody must go out last. It is nothing more nor less than the old rule of "The Devil take the hindermost." Mr. List leaves the Court-room—Mr. Warren goes out. All the officers are to go to dinner, and the door is to be opened and closed each time. Dinner is to be brought in. Twenty times that door is to be opened.
In the mean time about that door is collected a small number of persons of the same color with the person then at the bar, very likely, perhaps, to make a rescue, some advising against it, and some for it, with considerable excitement. Mr. Davis slides out of that passage-way and goes to his office. Mr. Wright is prevented from going by the crowd. Not a blow is struck. Not the hair of a man's head is injured. The prisoner walks off with his friends, straight out of this Court-House, and no more than twenty or thirty persons have done the deed. Three men outside of the door could have prevented the rescue. Mr. Riley did not suspect it. Mr. Warren did not suspect it. Mr. Homer did not suspect it. Mr. Wright did not suspect it. Nobody suspected it. The sudden action of a small body of men, unexpected, and only successful because unexpected, accomplished it. He is out of the reach of the officers in a moment, and there's the end of the whole business. No premeditation! No plan! Counsel knowing nothing about it! Nobody suspecting it, and the whole thing over in one minute!
But, may it please the Commissioner, the law is violated—the outrage is done. This is a case of great political importance, and the deputy Marshal thinks it his duty, (I think in rather an extraordinary manner,) instantly, before any charge is made against him, before any official inquiry is started, to issue a long affidavit, sent post haste to every newspaper, and hurried on to Washington,—Congress in session,—a delicate question there,—Northern and Southern men arrayed against each other. Then comes an alarm. Then the Executive shrieks out a proclamation.
A standing army is to be ordered to Boston. All good citizens are to be commanded to sustain the laws. The country thinks that mob law is rioting in Boston—that we all go armed to the teeth. The Chief Magistrate of fifteen millions of people must launch against us the thunders from his mighty hand.
In the meantime, we poor, innocent citizens are just as quiet, just as peaceable, just as confident in our own laws, just as capable of taking care of ourselves on Saturday evening as on Friday morning. Only some frightened innocents, like the goose, the duck and the turkey in the fable, say the sky is falling, and they must go and tell the king!
But we can all see now that there was too much alarm. We begin already to feel the reaction. A state of things has been created over this country entirely unwarranted by the circumstances. And I trust that the Commissioner will be able to say to the country, say to His Excellency the President of the United States, say to the world, that nothing of this sort has occurred; that there has been no preconcerted action; that the Marshal cleared his room, and every body went out peaceably; that nobody expected the rescue; that there was no crowd in the court-room; but the blacks, feeling themselves oppressed and periled by this law, standing at that door, behind which their friend and companion is held a prisoner, rush in, almost without resistance, carry off their prisoner, and not a blow is struck, not a weapon drawn, not a man injured. That is the end of it. There is no need of standing armies in Boston! And, above all, we trust that the Commissioner will be able to say to the world, to the President, and to Congress, that this effort was the unpremeditated, irresistible impulse of a small body of men, acting under the sense and sight of oppression and impending horrid calamities, against the advice of some of their own number; and that no gentleman of education, no counsellor of this court sworn to obey the law, has instigated these poor men to its overthrow. Massachusetts is not in a state of civil war, and her most valued citizens are not engaged in overturning the foundations of civil government.
Why should the criminal proceedings of this day have taken place at all? What is the evidence? The learned District Attorney thought proper to suggest to the Court that there was further evidence which might be presented in another stage of this proceeding. That, I am sure, fell with as little weight upon the mind of the Commissioner as it would if we, on the other hand, had said, as is the fact, that we have a large amount of evidence that might yet be presented in behalf of Mr. Davis. This is not a game of brag! It is not upon evidence that is not here, but upon evidence that is here, that this case is to be decided. Here has been mortified pride, here has been fear, here has been the dread spectre of Executive power, stalking across the scene, appalling the hearts, and disabling the judgments of men. Excited men suspect everybody. Every person who ever attended a public meeting is suspected. A political party is to be put under the ban. There is nothing so rash as fear. There is nothing so indiscriminating as fear. There is nothing so cruel as fear, unless it be mortified pride—and here they both concurred.
Instructions come from a distant Executive power that knows nothing of the facts. And the fear of that power and patronage is the reason, may it please the Commissioner, why suddenly, on Saturday or Sunday, before the subject can be examined and the truth ascertained, a warrant is got out against a person of the character and position of Mr. Davis. But when we look at things in their natural light, when there is a calm investigation of the facts, I think the Government will see and regret its rashness and delusion.
I understand, may it please the Commissioner, that there is to be a great deal done on this case of an unusual character. We have been threatened with the reading of newspapers; and public meetings, and political principles are to be charged as treasonable. Yes! political considerations are brought to bear. We cannot tell what limit is to be put to this. Therefore, not knowing what is before me, having no ordinary rules of procedure to guide me, the Commissioner will allow me to try to anticipate the attacks as well as I can. For having had it intimated that the argument will not follow legal evidence, but extracts from newspapers—
Mr. Lunt.That is very strong. I have offered you everything of that kind that I have to say.
The Commissioner.The gentleman proposes to read as part of his argument, an article from the newspapers.
Mr. Dana.He proposes to read it as evidence, to affect the mind ofthe court on the facts. I cannot object to it now. When it is offered, I have no doubt it will be properly met by the Commissioner.
I say, not knowing what is to come upon me, I must take a pretty wide margin. In that view of the case, it will not be improper if I state what I understand to be the true position of Mr. Davis, with reference to the principles involved in this case.
May it please your Honor, we are not subjects of a monarchy, which has put laws upon us that we have no hand in making. I do not hesitate to say, here, that if the act of 1850 had been imposed upon us, a subject people, by a monarchy, we should have rebelled as one man. I do not hesitate to say that if this law had been imposed upon us as a province, by a mother country, without our participation in the act, we should have rebelled as one man.
But we are a republic. We make our own laws. We choose our own lawgivers. We obey the laws we make, and we make the laws we obey. This law was constitutionally passed, though not constitutional, we think, in its provisions. It is the law until repealed or judicially abrogated.
Who passed this law? It was passed by the vote of the representative of our own city, whom we sent there by our own votes. It was advocated by our own Senator. It was passed by the aid of northern votes. Where is the remedy? It strikes me that the statement of the case shows where the remedy is. It is in the hands of the people. It is not in standing behind and urging on poor men to put themselves in the cannon's mouth. It is political courage that is wanted. Courage shown in speech, through the pen, and through the ballot-box.
But be it known that all I have said is on the idea that this is a repealable law. If we are to be told that this is a part of the organic law, sunk down deep into national compact, and never to be repealed,—then neither you nor I can answer for the consequences. But now we can say that it is nothing but an act, that may be repealed tomorrow. Take from us that great argument, and what can the defendant and myself do? What can the defendant say to discourage colored men from the use of force? You take from him his great means of influence. I never have been one of those, and I think the defendant has never been one of those, who would throw out all their strength in denunciations against Southern men born to their institution of slavery, and pass over those Northern men who volunteer to bring this state of things upon us.
But as a citizen, within constitutional limits, addressing his fellow-citizens at Faneuil Hall, (where I think we have still a right to go,) discouraging his fellow-citizens from violence, writing in the newspapers and arguing in the courts of law to the same purpose, saying to the poor trembling negro, I will give you a habeas corpus! I will give you a writ of personal replevin! I will aid in your defence! There is no need of violence! That is the position of the defendant. If he held any other position, if the defendant had made up his mind that here was a case for revolution, that here was a case for civil war and bloodshed—if I know anything of the spirit of the defendant, he would have exhibited himself in a far different manner. He would have resigned his position as a counsellor of this court, with all its profits and honors; he would put himself at the head instead of urging on from behind a class of ignorant, excited men, against the execution of the laws.
For he knows perfectly well—an educated man as he is, who has studied his logic and metaphysics, and who is not unfamiliar with the principles of the social system—that an intentional, forcible resistance to law is,in its nature, revolution. And I take it, no citizen has the right forcibly to violate the law, unless he is prepared for revolution. I know that these nice metaphysic rays, as Burke says, piercing into the dense medium of common life, are refracted and distorted from their course. But an educated man, with a disciplined mind, knows that he has no right to encourage others to forcible resistance, unless he is ready to take the risks of bringing upon the community all the consequences of civil war. We talk about a higher law on the subject of resistance to the law. And there is a higher law. But what is it? It is the right to passive submission to penalties, or, it is the active ultimate right of revolution. It is the right our fathers took to themselves, as an ultimate remedy for unsupportable evils. It means, war and bloodshed. It is a case altogether out of law. I do not know a man educated to the law that takes any other ground.
I suppose your Honor did not misapprehend my last remark and that no one did. When I said resistance to the law, I did not mean to include resistance for the purpose of raising a constitutional issue. If an unconstitutional tax is levied, you refuse to pay it and raise the constitutional question. This right seems to be lost sight of. Persons seem to think we are to obey statutes and not the constitution. I understand that the duty to the constitution is above the duty to the statutes. And therefore I say, by resistance to the law, I mean combined, systematic, forcible resistance to the law for the purpose of overcoming all law, or a particular law in all cases; defying the government to arms, and not for the purpose of raising a constitutional issue. For this is within the power, nay, it is sometimes the duty of a citizen. I do not know a position in which a person does a greater good to his fellow citizens than when he does, as John Hampden did on the question of ship money, raise, by refusal to obey, the constitutional issue. And in doing this, he ought to have the approbation of the Courts and their ministers, and of every person true to the constitution and the laws.
At the same time that it is important to maintain all these principles, which are the principles of the defendant, I also think this is a season when we must be very careful that certain opposite doctrines are not carried too far. I think it is a time, this day, when it becomes a judicial tribunal to see to it, that this extraordinary combination of Executive power and patronage; this alarm and this anxiety at head quarters, does not lead to a violation of private rights and personal liberty. I think there is a pressure brought to bear against the free expression of popular opinion, against the exercise of private judgment—a pressure felt even in the courts of law, intimidating counsel, overawing witnesses, and making the defence of liberty a peril. There is the pressure of fear of political disfranchisement, of social ostracism, which weighs upon this community like a night-mare. We feel it everywhere. We know that we make sacrifices when we act in this cause. We feel that we suffer under it. And if this course is persevered in, I believe that if a man stands at that bar charged with being a fugitive slave, he will find it difficult to obtain counsel in this city of Boston, except from a small body of men peculiarly situated.
I think that two years ago no man could have stood before this bar, with perpetual servitude impending over him, but almost the entire bar would have come forward for his defence. No man would have dared to decline. But because of this pressure of political and mercantile interests, it is said that Henry Long found it difficult to obtain counsel in New York. His friends sent to Boston to obtain an eminent man here, willingto brave public feeling by acting as a counsellor in a case of slavery. I do believe that this danger is to be regarded. For there is, at times, as much servility in democracies as in monarchies. I was struck with the remark made by the Earl of Carlisle, in his late letter, that there is in the United States an absolute submission to the supposed popular opinion of the hour, greater than he ever knew in any other country in the world. This is something in which no American can take pride.
The history of democratic governments shows that they may be as arbitrary as any absolute monarchy. Athens and Paris have, under democratic forms, been the standing illustrations of tyranny and arbitrary rule the world over. Those are free governments, in which there is a government of just laws, whether wrought out through a mixed government, as in England, or wrought out as here by the people themselves, and cast into representative forms. And now we see before us the anomaly, the mortifying contradiction, that it is in Great Britain, and not in the republic of the United States, with our venerated Declaration of Independence, that the great principles of Liberty and Fraternity are practically carried out. I do not mean to reflect upon any person or persons south or north of a certain geographical line. Our ancestors have eaten sour grapes, and their childrens' teeth are set on edge. We are all under the same condemnation. We are all responsible for these laws—for slavery, in some form or other. Our constitutional compact makes us responsible, and we cannot escape from our share of the evil and the wrong.
But I must leave these generalities, and pass to the particular points of this case. This is the first case of its kind that has occurred. The decision in this case by the Commissioner, though not matter of precedent, yet goes to the profession, the press, and into the private records of the country. Therefore we may be excused if we pay some considerable attention to the points of law involved.
In the first place, it should be borne in mind that a fugitive slave is not a criminal.
A few years ago, it was thought in Massachusetts that the pursuing of slaves was criminal. I thank God, it is not yet decided that the escaping from slavery is criminal. It is a mere question of property under this act. This law has recognized certain property in slaves, claimed in a certain manner, in the free States. It is a mere question of property. The Southern man has certain property in his slave. That property we do not here recognise. But if the property escapes, and he pursues it, it is to be recognised in this court. Consequently, when a Southern man comes here and seizes a person as his property, he takes him at his own risk, a risk which every man takes in seizing any thing as his property. If he seizes the wrong property, any person who owns it, may resist him, or resist his officer armed with a warrant. This has been ruled in various cases.
Your Honor recollects in the 8th Pickering, the case of the Commonwealth vs. Kennard. There the writ was placed in the hands of the officer, to go and attach some property of the defendant. He attached certain property which he thought belonged to the defendant. He showed his warrant, but the true owners put him, neck and heels, out of the house. They were indicted, but the Court sustained them in their act.
In a civil action, if the wrong person, the wrong horse, or the wrong slave, is taken, then the owner of the property may defend it, or the man seized may defend himself if he chooses. There is a different statute on the subject of interfering with the process of the courts, interfering with judicial processes, under which this respondent is not held to answer.Whenever this respondent is held to answer for resisting judicial processes, then these other questions may be raised. He is now only charged with rescuing property from the owner, or the officer holding for the owner.
The Constitution says that any personchargedwith crime, and escaping, shall delivered up. But in the case of the Fugitive Slave, it carefully alters the phraseology. It does not say that any personchargedwith being a Fugitive Slave shall be surrendered, but any person whoisa Fugitive Slave. In the one case, thechargeis the only material fact, and is proved by record. In the other case, which is a question of property, the fact of property is the foundation of the proceeding. So, in this act of 1850, the 6th Section does not provide that any person whoclaimsa Fugitive Slave, shall have the right to arrest him, but any person whois the ownerof a Fugitive Slave, may arrest him. So in the 7th Section, the penalty is not inflicted for rescuing a person who isclaimedas a Fugitive Slave, but for rescuing a person whoisa Fugitive Slave. These provisions are in analogy with the law of property, and of the arrest of persons and property, in all other cases. As bad as this statute is, it is not quite so bad as its friends in this case would make it.
The next consideration is, that it is not necessary that the claim should be made by virtue of legal process. The owner or his agent may arrest the fugitivewith or without process.The offence is equally committed, and the penalty is the same, whether the rescue is made from the owner without process, or from the officer having process. This fact, with the fact that there is a general statute relating to the offence of obstructing judicial processes, shows that this statute assumes the facts of property and escape to be true, and applies only to cases in which they shall prove to be true.
If this is not so, what is the result? If a man claims another, without process, by putting his hand on his shoulder, though the man may be as free as you or I, if he resists, or his friends aid him in resisting, the offence is committed. A man claimed as a Fugitive Slave, has been rescued or aided in his escape. You cannot refuse to deliver up a colored boy or girl born in your house, of free parents, to any man who knocks at your door and claims the child, with or without a warrant, without incurring the penalties of this act. This monstrous construction can never be admitted. I beseech the Commissioner to reconsider his intimated opinion on this point, and to hold the Government to preliminary proof, in the outset, that the person rescued was a slave by the law of Virginia, was the slave of the man who claimed him, and was a fugitive from that state of Slavery.
What evidence has there been of any of these facts? There has been no evidence offered that the prisoner was a slave by the law of Virginia!—There has been no evidence offered that he was the slave of Mr. Debree! There has been no evidence offered that he was a fugitive from a state of slavery! Mr. Riley's return upon the warrant, stating that he had arrested "the within named Shadrach," was admitted as evidence. I solemnly protested against the reception of the return as evidence in a criminal proceeding between other parties; but it was received, and for a while held to be conclusive. But, in answer to my question, Mr. Riley replied that he did not know the man he arrested to be the man named in the warrant. And how could he know it? This nullified the return, and the government had no evidence. The District Attorney saw this, and rising in his seat, in a threatening tone, said to Mr. Riley, "I warn you, sir, not to give that testimony!" The testimony was true, and it was admitted by the court. Why was Mr. Riley warned? He waswarned for private reasons. It was an official warning, by the agent of the Executive to one of its servants.
Mr. Lunt—I deny that it was a private warning. It was public, and for proper reasons.
Mr. Dana—It was for private, or secret reasons, not given, not apparent,—some political or governmental terror, known only to the parties. There is no escape from this. The bar saw it. The audience saw it. It is graven with a pen of iron, and laid up in the rock forever!
All evidence of identity having failed, the government is driven to its last shift. Col. Thomas is called in, and he testifies that the agent of Mr. Debree said to him, in the Court-room, when the prisoner was brought in, "That is my boy!" This is hearsay evidence upon hearsay evidence. It is monstrous! Yet on this slender thread of illegal testimony, hung all the evidence of the facts of identity, slavery and escape. If it is enough to prove that the man rescued was the man in custody, and upon whom the Court was sitting in fact, no one denies it. But if it be necessary to show that the man in custody was the man named in the warrant, or that he was a slave, and a fugitive slave, there has been no competent evidence of any of those facts, and no evidence at all but of one of them.
This man was not rescued from the Court. The Court had adjourned. The Marshal had chosen to make the Court-room a slave jail. The offence would have been the same in the eye of the law, if he had been rescued from the hands of the agent having no warrant, in the streets, or in a railroad car.
I have nothing more to submit to the Court on the subject of the law applicable to this case. I will now call your Honor's attention to the facts in proof.
To avoid repetition and confusion, I will call your Honor's attention to single points.
1. Mr. Davis was counsel in the case, and acted as such. Mr. Morton, who knew Shadrach, and to whom Shadrach looked for advice, recommended Mr. Davis to him as counsel. Mr. Riley testifies that Shadrach twice pointed out Mr. Davis to him as one of his counsel, when officially inquired of by Mr. Riley. Mr. King and Mr. List, counsellors of this court, testify that Mr. Davis sat with, consulted with and conversed with the counsel who addressed the court, made a prolonged and careful examination of the papers, and was the first who raised the doubt of their sufficiency. Mr. Sawin, an officer, says he acted as counsel. It is proved that he went into the court room for the purpose of acting as counsel, and did not leave the room or the bar at all (the government will admit, not for more than a minute or two) until the last moment. What other evidence can there be of counsel's authority? It is seldom if ever in writing, but is proved by acts and recognitions. After such evidence of the acts and recognitions of a hasty and troubled forenoon, including the testimony of two of his own officers, I was amazed at the pertinacity of the prosecuting officer in calling Mr. Curtis to prove that Mr. Davis was not counsel. But Mr. Curtis admitted that he knew nothing of the relations between Shadrach and Mr. Davis, that there are often counsel who do not address the court, and that Mr. Davis might have been of such counsel, for aught he knew. And most of the work of counsel was done after Mr. Curtis left.
I think your Honor will find no difficulty in believing that Mr. Davis acted as counsel for Shadrach, and was in attendance for that purpose.
2. To connect Mr. Davis with the rescue, the Government has foundit necessary to contend that he left the court room and returned, shortly before the rescue took place. The only witness to this is Prescott; and how does he stand? Prescott was in the entry before the rescue took place, he heard it debated, he saw it through, he gave no notice to any one, but evidently, from the testimony of Hanscom, he sympathized with the rescuers, and expressed his sympathy in a very unguarded manner for a man who was present, in the midst. All that day and the next, with the vanity of a youth who has been the fortunate spectator of the great event of the day, a fire, a hanging, or a murder, he vaunts his connection and sympathy with the rescue. On the third day come the arrests. He finds the Government has learned that he was present. Six months in jail and a thousand dollars fine, is no trifle to a mechanic's apprentice. He becomes alarmed, and offers himself as State's evidence, and becomes a swift, a terrified, and a blinded witness for the Government. He says he was standing in the entry by the recess that leads to the east door and the water-closet. While there, he saw a gentleman come along the entry and go past him into the recess, and he thinks through the east door into the court room. If this was Mr. Davis, he must have gone through that door, for he was in the room and left it again a minute after. This gentleman he is sure was Mr. Davis, although he did not then know him by name and had only seen him once. Nor was there anything then to call his attention to a casual passer by.
Now, may it please your Honor, how long and when was Prescott at that post? According to his own testimony, about two minutes before the rescue began, and as soon as he saw the attempt was serious, he left that place for the stairs. Mr. Davis, then, must have entered the east door one or two minutes before he went out of the west door. Now, Mr. Warren, the Deputy Marshal, testifies that he passed through the entry into this closet, just about two minutes before the rescue, and remembers seeing a young white man standing at the corner. To avoid the effect of this evidence, Prescott is recalled and says he remembers also to have seen a man come out at the east door and go into the closet, at this moment. But here the witness made a mistake. He thought that Mr. Warren went through the east door, but Mr. Warren says that he came along the entry, and had not been in or out of that door. What then is the predicament in which Prescott has involved himself? Three different men must have gone into that recess in the short space of two minutes; two of them at least, must have been in the closet at the same minute; and the east door must have been opened three times upon a knock from without.
Against this evident mistake or wilful perversion, what is the evidence? Mr. Riley and Mr. Warren both say that the east door was fastened on the inside, with strict orders not to have it opened at all; and so strict were they, that they themselves went and came by the west door. No one can be found who opened that door or saw it opened, or saw Mr. Davis go in or out at it, and it is next the Marshal's desk, and in plain sight of every one. No one could come in at it, without knocking and having it opened from within. During the half hour before the rescue, there was no one in the room but the prisoner, the officers and the counsel. The doors were both in plain sight, the east door locked, and at the west door two officers, between whom every person must pass. Both these officers testify that Mr. Davis did not go out or in to their knowledge. Byrnes, Neale and Sawin, the other officers, did not see him go, and think he did not leave the room. Mr. Riley is confident he did not leave the room. Mr. Wright found Mr. Davis in the room, half anhour before the rescue, and is sure he did not leave. Not a man in the court room saw him go or come, or believes that he did so. If Prescott's conjecture is true, Mr. Davis must have gone out past the officers at the west door, returned to the east door, knocked and been admitted by another officer,—beside the inconsistencies about the men in the closet.
We might well ask, what if this were Mr. Davis? What does it prove? He spoke to no one, except a "good day" to one man, and took no notice of the crowd at the door. But I will not argue this supposition, for it is not true. It was not Mr. Davis. He did not leave the room until he went out for the last time.
Something has been attempted to be made out of Mr. Davis' conversation with the officers in the room. A man engaged in a plot for a rescue, would not be likely to expose himself to suspicion by violent remarks to officers. But take the evidence as it stands. At the request of Mr. List, he asked Sawin, whom he knew, if the man next Shadrach was a Southern man. This was proper. The counsel did not wish a man to sit next the prisoner, who might converse with him for the purpose of getting admissions from him. They feared he might be an agent of the claimant. He said privately to Mr. Sawin, whom he had known intimately for years, that this was a dirty business he was engaged in. He did not know Mr. Sawin to be an officer of the Court. He knew him as a city constable; and supposed he had let himself out by the day as a catcher of fugitive slaves. I know something of the feelings of Southern gentlemen as to this class of men. They are necessary evils. They use them as we use spies, informers and deserters in war; they use them, but they despise them. I remember being in one of the chief cities of Virginia, and passing a large, handsome house, when my friend said to me, "There lives perhaps the richest man in our town, but he visits nowhere, nobody notices him. He is looked upon with aversion. He is a dealer in slaves! He keeps a slave-market, and pursues fugitives!" They look upon this occupation with as much contempt, aye, with more contempt than we seem to now; for there is a higher spirit in their aristocracy, than in the ruling classes of our Northern cities at this moment. This was the feeling of Mr. Davis, when he spoke to Sawin. This is the feeling of every man of honor. He wished a man whom he knew, to be engaged in a more respectable business. I have said the same. I saw a man I knew in Court the other day, letting himself by the dollar a day, in slave catching. I begged him, if he could find any honest mode of getting a living, to abandon it.
The Commissioner.Did you know him to be engaged in his legal duties?
Mr. Lunt.A very improper remark!
Mr. Dana.I venture to suggest not. The remark was with reference to the future, and not to the present.
The Commissioner.I see no distinction between attempting to deter men from executing the law and assisting in violating it.
Mr. Dana.I am sorry I cannot see the impropriety of it. Perhaps I have not made myself clearly understood. Mr. Davis expressed his opinion that the man had better be in better business.
The Commissioner.It was equivalent to saying to the officer that the execution of the law was a mean business.
Mr. Dana.That I propose to argue.
The Commissioner.On that point, the defendant himself intimated in his cross-examination, that the expression was not used as an observationin general. On being asked whether the remark was not said with regard to his business, he replied, yes.
Mr. Dana.I did not so understand it. He intended to say this—Mr. Sawin, you and I are old acquaintances. You are not obliged to do this business. It is mean business. Why do you volunteer in it? This is what I myself have said, and what every high-minded man must feel.
Mr. Lunthere intimated that Mr. Dana might find himself changing places at the bar, and be a defendant instead of counsel, if he advocated and expressed such sentiments.
Mr. Danasimply bowed to the Attorney, and proceeded.
No citizen is bound to an active execution of this law, unless called upon as one of theposse comitatus. Did your Honor feel bound to join in the pursuit last Saturday, when the mob passed you at the corner of Court street? Do you feel bound, of a pleasant evening, to walk about in the neighborhood and see what fugitives you can find and dispose of? Would any compensation tempt you to do it?
On the subject of the conversation with Byrnes, that was considered, of course, very truculent, on the government's evidence. But when explained by Mr. Minns, what is it? The defendant knows that the cause in which he is engaged, by a strange revulsion of public feeling, is unpopular. It is unprofitable, and whatever is unprofitable is unpopular. It is not genteel, and persons doubtful of their gentility ridicule it. Now Mr. Davis being engaged in this unpopular cause, Byrnes makes a remark which Mr. Minns thought was intended to irritate Mr. Davis.
He did not hear the first part, but it ended with "killing the negroes." Mr. Davis felt that it was intended as a taunt to him. He answered him, "Then, on that principle, you ought to have your throats cut." I have no doubt it was a logical conclusion from Mr. Byrnes' premises, and nothing more.
Up to this point, what is the evidence against Mr. Davis? Am I not right in saying, nothing whatever—nothing more than any man would be subject to, who acted as counsel?
The only remaining point is his passing out of the door, and his conduct in the entry. On this point there is but one witness against him, and that is Mr. Byrnes, who, unfortunately, holds the office of Deputy Marshal. I shall not go into an examination of the evidence as to the reputation of this man. Twelve good men, known to us all, persons likely to know Byrnes's character, have testified it is and has for years been bad, decidedly bad; and it was not denied by his witness, that the verdict at East Cambridge was rendered on the assumption of his not being worthy of belief. His own witnesses were chiefly casual acquaintances, or the boon companions of his bowling-alley and billiard-room, the retailers of liquors, men who, like him, live by violating the laws by night, which he lives by enforcing in the day-time.
It is clearly proved that there was no suspicion of a rescue, either in the court room or in the entry, until the instant it took place. Prescott did not suspect it. Mr. Homer, the highly respectable assistant clerk of the Municipal Court, who saw the whole occurrence from the stairway, did not think it would be any thing serious. Mr. Warren, the Deputy Marshal, passed through the group at the door twice, but two or three minutes before the rescue, and suspected nothing. Five Courts were in session, and persons were passing up the stairs and through the passage-way to the last moment, and suspected nothing. The officers inside suspected nothing. Their defence against negligence is the defence of Mr.Davis. Mr. Davis knew that Mr. Morton expected to purchase the freedom of Shadrach. He had confidence that the documentary evidence was fatally defective. He was engaged to attend the consultations on the defence, and on the Habeas Corpus, that afternoon. He saw that Mr. Curtis was not disposed to hurry matters, or to deny the prisoner full opportunities for defence. And I will do Mr. Curtis the justice to say that I have no doubt it was his object to exhibit this law to us in its most favorable light; to justify its makers as far as possible. Mr. Davis neither knew, nor suspected, nor thought of a rescue at that door. Every witness says he went out of the door in the usual manner, except Hutchins, and when Hutchins thought he should have gone out in full front, instead of side-wise, your Honor well asked how otherwise could he have gone out, with a crowd against the door, and in the passage? I see that your Honor thinks nothing of that; although in the more jealous eye of the District Attorney, it is matter of suspicion. To minds so disposed, there is nothing but is proof of guilt. If Mr. Davis had marched out in full front, it would have been in order to open the door wider, for the conspirators to rush in. Just so in the case of poor Shadrach's coat. Yesterday the District Attorney was certain that Mr. Davis, or some one apprised him of the intended rescue, because he pulled his coat off. Now, when it is proved, by the government's own witnesses, that Shadrach afterwards put his coat on again, I suppose his putting it on will be just as good proof of the same thing.
Mr. Byrnes, thinks he recognized Mr. Davis' voice in the entry, calling out, "Take him out, boys!" But the same cry was uttered several times, and Mr. Homer and Mr. Hutchins, who saw Mr. Davis at the moment, and were outside, say it did not come from him, but from the negroes, and Prescott attributes it to the negroes. Four men were nearer to Mr. Davis than Byrnes was, and all of them exculpate Mr. Davis. And Byrnes is confessedly hard of hearing, and not particularly familiar with Mr. Davis' voice. Moreover his character for truth and veracity is impeached.
Mr. Davis was on or near the platform when Mr. Homer saw him. Mr. Adams met him on the lower floor, by the Marshal's office, while the noise was going on up stairs; talked with him two or three minutes, and walked round the building, and saw the crowd go up the street. This proves that Mr. Davis did not linger near the rescuers; nor did he absolutely run away, or fly, as a man would who desired to avoid discovery. On the contrary, he did just as any other person would have done. He staid long enough to let himself be seen by several persons, but not long enough to be of any aid to the rescuers. Nothing can be clearer of cause for imputation, than the conduct of Mr. Davis in the entry and on the stairway.
Such, please your Honor, is all the evidence against the defendant. It is reduced to an exclamation on the stair-case, sworn to, not very confidently, by a deaf man, who was too far off to hear well at any rate of hearing, denied by three officers, with good hearing, two of whom were outside, while a dozen voices were calling out the same thing at the same moment; the moment, too, one of alarm and excitement on the part of the officers. If such evidence is sufficient, who can be safe? Who would dare to act as counsel in any case of public excitement, with a suspicious and angry government watching every motion, served by officers of broken down reputations?
Please your Honor, I have done with the testimony. On what principles of proof is the judgment to be made up?
The Constitution requires that no person shall be arrested without awarrant supported by oath. The Act of 1789 requires these proceedings to be conformed to proceedings in the State Courts. In Massachusetts it has always been required that the complainant shall be first examined on his oath. In this case there has been no examination under oath. Mr. George Lunt, has sworn, "so help me God," that Charles Gideon Davis, a Counsellor of this Court, has aided in rescuing the prisoner. Yet, so help him God! he knew nothing about the facts. He has made oath to the form of the Statute, and no more.
Mr. Lunthere intervened and said it was the custom for the District Attorney to swear to complaints on hearsay evidence.
Mr. Dana—But this is not stated as hearsay. It is sworn to as a fact. Charles G. Davis "didrescue," and the above named George Lunt made oath to thetruth of the facts. As a question of conscience, I leave it with that officer to settle with himself. As a matter of law, as a matter of vital importance to every citizen, as a great question of constitutional law, I earnestly protest against the issuing of warrants on the mere formal oaths of official persons, representing a party in the proceedings, and utterly ignorant of the facts they swear to. If it be a custom, it is more honored in the breach than in the observance. But I deny that it is the custom. Complaints are sworn to by persons knowing the facts always in the State Courts, and in my experience in the Federal Courts. If the prosecuting officer is obliged to swear to them, for want of other witnesses, he only swears to his information and belief.
In closing my prolonged remarks, let me recapitulate our case. Mr. Davis is not the man to urge others to acts he dares not commit himself. He believes this dreadful statute unconstitutional, a violation of our moral sense, a great breach upon the safeguards of freedom every where. Yet he will oppose it legally, by speech, by the pen, and in Court. He will not yield to it any voluntary obedience, but he will not use force, or counsel citizens to use force to set aside the laws. He rejoices that Shadrach is free. Every right minded man rejoices that he is free. Sober second thought teaches him and all of us that violent counsels are weak counsels. Better had it been for the cause of freedom, if, when the Marshal called out to shoot the prisoner, some armed minister of the law had shot dead the unarmed, unoffending man! Better had it been for him, and the cause of those like him, if John H. Riley, instead of flying to the window, had plunged that sword to the hilt in the heart of the captive! Better if this temple of justice, which has already been turned into a slave jail, and a slave market, had also been made the shambles and the grave!
While we uphold the public peace and the dignity of all laws, let us regard with tenderness and consideration that poor class of oppressed men, our negro population, on whom the statute falls with the terrors and blackness of night. When one of their number, by his industry and abilities has raised himself to the dignity of a place in this bar, it was with mortification I heard him insulted, yesterday, on the stand, by an officer of court, who pointed him out, in giving his evidence, as "the little darkey lawyer." While I rejoiced at the rebuke administered to that officer from the bench, it was with deep regret that I saw the representative of the government lead off the laugh of the audience against him.
Mr. Lunt—This is false.
Mr. Dana—Do you deny you did so? It was seen and noticed by us all. I spoke to you at the time.
Mr. Lunt—I only smiled. I cannot always control my muscles.
Mr. Dana—I am sorry you could not control them on this occasion.It led off and encouraged others, who take their cue from persons in high stations.
The doings of these last few days are now part of history. If there has been a hasty and a needless arrest of a respectable gentleman; if counsel have been intimidated, or witnesses threatened; if liberty of speech and action have been periled; if the dignity and duty of office have been yielded to the unreasonable demands of political agents, and the commands of a misinformed Executive,—the Inquest of public opinion is to sit upon the whole transaction, and it will be held up to the world.Proximus ardet Ucalegon!There are revolutions in the wheel of fortune. There are tides in the affairs of men.
Let us hope that your Honor will be able to set this occurrence in its true light:—A sudden, unexpected, unpremeditated action of a group of excited men, and successful because unexpected. But a sworn counsellor of this Court, even in the excitement of the rescue of a slave to his freedom, by those of his own flesh and bone, did not forget the duty he owed personally to the Court and the law.
ARGUMENT OF GEORGE LUNT, ESQ., DISTRICT ATTORNEY.
Mr. Lunt said that the counsel for the defence had commenced by saying, that he did not know how he was to be answered. He should not reply to the first two hours of the gentleman's speech. The gentleman has alluded to constitutional doctrines, and opinions, which a small class of the community entertain. I shall not spend my time for popular effect. Some of his remarks come with an ill grace from him, and those with whom he associates. The gentleman should take care how he is associated. I have nothing to say against the colored people—ignorant—degraded, no doubt, but peaceable, as a general thing; they would be glad to get away from people who meddle with them, and would prefer to be let alone. But I say it is dangerous and mischievous to recommend such doctrines as the gentleman avows.Proximus ardet Ucalegon!The relation of counsel in which he appears here may be changed. The sentiments he has uttered here placehimin peril. He will find itso,to his cost, unless he changes the tone of his remarks, on this and future occasions.
I will proceed at once to the evidence. The question here is, has a law of the United States been violated? I throw to the winds every question except whether this defendant is guilty; high or low, it matters not; the higher in station, the more amenable. I do not suppose for a moment that the Commissioner has any prejudice. We cannot, and we never will regard, the office, which the counsel seems to consider sacred. The sacredness of an office depends upon the sacredness of character. I am accused of having arrested an individual with unseemly haste, a person of character, of a family whose name is known in history; a member of the bar, bound to preserve the law, counsel at the time, and entitled to perfect freedom. I can state with confidence that the defendant was not arrested until after a full personal investigation of facts, and then on a keen sense of duty. Now what were the grounds in general, on which the warrant was issued? Mr. Davis meets Mr. Riley in the morning, upon which, after an inquiry whether he has seen Mr. Curtis, he asked if he has a slave case? a question he might well ask, considering the company with which he is associated. He asks him again in this Court room.