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Davis, Esq., on a Charge of Aiding and Abetting in the Rescue of a Fugitive Slave, by anonymous + </title> + <style type="text/css"> + + + p { margin-top: .75em; + text-align: justify; + margin-bottom: .75em; + text-indent: 1.23em; + } + h1,h2,h3,h4,h5,h6 { + text-align: center; /* all headings centered */ + clear: both; + } + hr { width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; + } + .right { text-align: right; + clear: both; + } + .sign { text-align: right; + margin-right: 2em; + clear: both; + } + + table {margin-left: auto; margin-right: auto;} + + body{margin-left: 10%; + margin-right: 10%; + } + .center { text-align: center; + clear: both; + } + .pagenum { /* uncomment the next line for invisible page numbers */ + /* visibility: hidden; */ + position: absolute; + left: 92%; + color: #808080; + font-size: smaller; + text-align: right; + } /* page numbers */ + + .linenum {position: absolute; top: auto; left: 4%;} /* poetry number */ + .blockquot{margin-left: 5%; margin-right: 10%;} + .sidenote {width: 20%; padding-bottom: .5em; padding-top: .5em; + padding-left: .5em; padding-right: .5em; margin-left: 1em; + float: right; clear: right; margin-top: 1em; + font-size: smaller; color: black; background: #eeeeee; border: dashed 1px;} + + .bb {border-bottom: solid 2px;} + .bl {border-left: solid 2px;} + .bt {border-top: solid 2px;} + .br {border-right: solid 2px;} + .bbox {border: solid 2px;} + + + .smcap {font-variant: small-caps;} + .u {text-decoration: underline;} + + .caption {font-weight: bold;} + + .figcenter {margin: auto; text-align: center;} + + .figleft {float: left; clear: left; margin-left: 0; margin-bottom: 1em; margin-top: + 1em; margin-right: 1em; padding: 0; text-align: center;} + + .figright {float: right; clear: right; margin-left: 1em; margin-bottom: 1em; + margin-top: 1em; margin-right: 0; padding: 0; text-align: center;} + + .footnotes {border: dashed 1px;} + .footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} + .footnote .label {position: absolute; right: 84%; text-align: right;} + .fnanchor {font-size: .8em; text-decoration: none;} + + .poem {margin-left:10%; margin-right:10%; text-align: left;} + .poem br {display: none;} + .poem .stanza {margin: 1em 0em 1em 0em;} + .poem span.i0 {display: block; margin-left: 0em; padding-left: 3em; text-indent: -3em;} + .poem span.i2 {display: block; margin-left: 2em; padding-left: 3em; text-indent: -3em;} + .poem span.i4 {display: block; margin-left: 4em; padding-left: 3em; text-indent: -3em;} + + </style> + </head> +<body> + + +<pre> + +The Project Gutenberg EBook of Report of the Proceedings at the +Examination of Charles G. Davis, Esq., on the Charge of Aiding and Abetting in the Rescue of a Fugitive Slave, by Various + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Report of the Proceedings at the Examination of Charles G. Davis, Esq., on the Charge of Aiding and Abetting in the Rescue of a Fugitive Slave + Held in Boston, in February, 1851. + +Author: Various + +Release Date: February 27, 2010 [EBook #31424] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK FUGITIVE SLAVE *** + + + + +Produced by Meredith Bach, Odessa Paige Turner and the +Online Distributed Proofreading Team at http://www.pgdp.net +(This file was produced from images generously made +available by The Internet Archive/American Libraries.) + + + + + + +</pre> + + + + +<p><span class='pagenum'><a name="Page_1" id="Page_1">[Pg 1]</a></span></p> + + + + + + + + <h1>REPORT</h1> + + <h4>OF THE</h4> + + <h2>PROCEEDINGS AT THE EXAMINATION</h2> + + <h4>OF</h4> + + <h1>CHARLES G. DAVIS, ESQ.,</h1> + + <h4>ON A</h4> + + <h2>CHARGE OF AIDING AND ABETTING IN THE + RESCUE OF A FUGITIVE SLAVE.</h2> + + <h3>HELD IN BOSTON, IN FEBRUARY, 1851</h3> + + <h3>United States vs. Charles G. Davis.</h3> + +<p style="text-align: center">BOSTON: WHITE & POTTER, PRINTERS, 4 SPRING LANE.</p> +<p style="text-align: center">1851.</p> +<p><span class='pagenum'><a name="Page_2" id="Page_2">[Pg 2]</a></span></p> + + + +<hr style="width: 65%;" /> +<h2><a name="NOTE" id="NOTE"></a>NOTE.</h2> + + +<p>The following Report is published at the request of numerous persons who are of opinion +that all which is known of the operation of the Fugitive Slave Bill, should be spread before +the public. To the legal profession it will be of interest, as developing new points in the +construction and application of a Statute, destined to be of great political importance now, +and in future history. They will be able to judge of the constructions upon the Statute, +and of the law of evidence, as laid down and applied by the Commissioner, and contended +for by the representative of the Government. Not the profession alone, but the public, can +judge of the temper, and manner, as to parties and witnesses, in which the prosecution was +pressed, and the judicial duties performed.</p> + +<p>It will be well for every reader to bear in mind that this is the tribunal to which the late +Act of Congress gives final jurisdiction in deciding whether a man found a free inhabitant +of a free state, shall be exiled, and sent into endless slavery.</p> + +<p>The Commissioner tries an issue, on the result of which, all the hopes of a fellow man for +the life that is, and that which is to come, are suspended; and his judgment is "conclusive +on all other tribunals."<a name="FNanchor_A_1" id="FNanchor_A_1"></a><a href="#Footnote_A_1" class="fnanchor">[A]</a></p> + +<p>It will be well for us, as citizens, to remember, that the attempt is making to establish +this act, passed by the vote of less than half of the Representatives of the people, as the +unalterable law of the country; to treat as treason and disaffection to government, all +attempts to rouse the public to efforts for its repeal; and, by unprecedented coalitions, that +might almost be called conspiracies, of public men, to destroy the character and means of +influence of all who lend their aid in these efforts. Even a public discussion of the subject, +is cause for suspicion and inquiry.</p> + +<p>We would ask every reader, on rising from the examination of this trial, taken in connexion +with the President's Proclamation and Message, the late debate in the Senate, and +the recent letters and speeches of leading men of both parties, to say, for himself, whether +these are not times, not only of danger to the liberty of colored men, but of serious apprehension +for our independence and dignity as men, and our rights as citizens.</p> +<p><span class='pagenum'><a name="Page_3" id="Page_3">[Pg 3]</a></span></p> + +<div class="footnote"><p><a name="Footnote_A_1" id="Footnote_A_1"></a><a href="#FNanchor_A_1"><span class="label">[A]</span></a> See the Opinion of Attorney General Crittenden.</p></div> + +<hr style="width: 65%;" /> +<h2><a name="REPORT" id="REPORT"></a>REPORT.</h2> + + +<p>On the 13th of February, A.D. 1851, one John Caphart, of Norfolk, Va., +came to Boston, in pursuit of one Shadrach, alleged to be a fugitive slave and the +property of John Debree, a purser in the navy, and attended by Seth J. Thomas, +Esq., as counsel, made his complaint, as agent and attorney of the said owner, +before George T. Curtis, Esq., U. S. Commissioner. On the evening of the 14th, +the following warrant was placed in the hands of special marshal Sawin, and +served, Shadrach offering no resistance, about half-past 11 on Saturday forenoon, +the 15th, at the Cornhill Coffee House, where Shadrach had been employed for +some months as a waiter:—</p> + + +<p style="text-align: center">UNITED STATES OF AMERICA.</p> +<div class="blockquot"> +<div class='sign'> +<span class='sign'> +<i>Massachusetts District, ss.</i></span></div> +<div class='sign'> +<span style="float: left;"> +To the Marshal of our District of Massachusetts, or either of his deputies.</span><br /> +<span style="float: left;">[Seal]</span><span class='sign'>Greeting:</span></div> + + +<p>These are, in the name of the President of the United States of America, to +command you, the said marshal or deputies, and each of you, forthwith to apprehend +one Shadrach, now commorant in Boston, in said district, a colored person, +who is alleged to be a fugitive from service or labor, and who has escaped from +service or labor in the state of Virginia, (if he may be found in your precinct), +and have him forthwith before me, one of the commissioners of the circuit court of +the United States for the Massachusetts district, at the court house in Boston +aforesaid, then and there to answer to the complaint of John Caphart, attorney of +John De Bree, of Norfolk, in the state of Virginia, alleging under oath, that the +said Shadrach owes service or labor to the said De Bree, in the said state of Virginia, +and while held to service there under the laws of the said state of Virginia, +escaped into the state of Massachusetts aforesaid, and praying for the restoration +of the said Shadrach to the said De Bree, and then and there before me to be dealt +with according to law.</p> + +<p>Hereof fail not, and make due return of this with your doings thereon, before +me.</p> + +<p>Witness my hand and seal at Boston, in the said district, on this fourteenth day +of February, in the year of our Lord, one thousand eight hundred and fifty one.</p> + +<div class='sign'> +<span style="float: left;">(Signed)</span> GEO. T. CURTIS,<br /> +</div> +<div class='right'>Commissioner of the Circuit Court of the United States,<br /> +for Massachusetts District.</div></div> + +<hr style='width: 45%;' /> + +<p>The following return was endorsed upon the warrant:—</p> + +<div class="blockquot"> +<div class='sign'><span class="smcap">Boston</span>, February 15th, 1851.</div> + + +<p>In obedience to the warrant to me directed, I have this day arrested the within +named Shadrach, and now have him before the commissioner within named.</p> + + +<div class='sign'>P. RILEY, U. S. Deputy Marshal.</div></div> +<p><span class='pagenum'><a name="Page_4" id="Page_4">[Pg 4]</a></span></p> + +<p>A hearing was had in the U. S. court room, and several papers, being affidavits +and certificates of a record, were exhibited by the complainant's counsel, as the +evidence under the 10th section of the Fugitive Slave Law so called, that Shadrach +was a slave in Virginia, that he was owned by said De Bree, and that he +escaped on the 3d of May, 1850. At the request of counsel these papers were +read and admitted as evidence in the case, subject to such objections as might be +made to their admissibility as legal evidence thereafter.</p> + +<p>There were present as counsel for Shadrach, S. E. Sewall, Ellis G. Loring, +Charles G. Davis, and Charles List, and as they had not had an opportunity to examine +the documents produced by the complainant, and were therefore not satisfied +of their sufficiency, they asked for a postponement, to February 18th, and the +commissioner adjourned the further hearing of the matter until 10 o'clock, on +Tuesday, February 18th, and passed the following order:—</p> + +<div class="blockquot"><p>United States of America, District of Massachusetts, February 15th, 1851.—And +now the hearing of this case being adjourned to Tuesday the eighteenth day +of February instant, at ten o'clock in the forenoon, the said deputy marshal, who +has made return of this warrant, is hereby ordered to retain the said Shadrach in +his custody, and have him before me at the time last mentioned, at the court house +in Boston, for the further hearing of the complaint on which this warrant is +issued.</p> + + +<div class='sign'>GEO. T. CURTIS, Commissioner.</div> +</div> + +<hr style='width: 45%;' /> + +<p>On the following Tuesday, P. Riley, Esq., Deputy U. S. Marshal, appeared +before the Commissioner, George T. Curtis, Esq., and offered the following +return which was annexed to the above order.</p> + +<div class="blockquot"> +<div class='sign'><span class="smcap">Boston</span>, Tuesday, February 18th, 1851.</div> + +<p style="text-align: center">UNITED STATES OF AMERICA.</p> + +<div class='sign'><i>Massachusetts District, ss.</i></div> + + +<p>I hereby certify, in pursuance of law and the foregoing order, the said "Shadrach" +named in the foregoing warrant and order, was being detained in my custody +in the Court Room of the United States, in the Court House, in said Boston, +when the door of said room, which was being used as a prison, was forced open +by a mob, and the said "Shadrach" forcibly rescued from my custody. I also +annex hereto, and make part of my return an original [printed] deposition, of the +circumstances attending the arrest and rescue, and have not been able to retake +said Shadrach, and cannot now have him before said Commissioner for reasons +above stated.</p> + + +<div class='sign'>P. RILEY, U. S. Deputy Marshal.</div> +</div> + +<hr style='width: 45%;' /> + +<div class="blockquot"><p style="text-align: center"> +COMMONWEALTH OF MASSACHUSETTS.</p> + +<p style="text-align: center"><i>Suffolk County.</i> +</p> + +<p>I, Patrick Riley, of Boston, in the said county, counsellor at law, having been +duly sworn, depose and say, that I am, and have been, for fourteen years past, the +principal deputy of the United States Marshal for the District of Massachusetts.</p> + +<p>That on Saturday morning, February 15th, 1851, about twenty minutes before +8 o'clock, A.M., I was called upon at my residence, by Frederick Warren, one of +the U. S. deputy marshals, who informed me that there was a negro man, an alleged +fugitive, to be arrested at 8 o'clock, who was supposed to be at Taft's Cornhill +Coffee House, near the Court House, and desired to know where the negro should +be put in case he should be arrested before I reached the office; that I told him to +place him in the United States Court Room,—and that I would come to the office +immediately,—that I came down almost immediately to the office, where I arrived +shortly after 8 o'clock, and there found Mr. Warren, who informed me that the +negro was unknown to Mr. Sawin, deputy marshal, to whom the warrant was +handed on the night previous, as I have been informed, though no notice of it had +been given to any occupant of the marshal's office,—and that the negro was unknown +to any one of the marshal's deputies or assistants,—that Mr. Warren +<span class='pagenum'><a name="Page_5" id="Page_5">[Pg 5]</a></span>informed me that Mr. Sawin had gone to find the man, who by previous arrangement +was to point out the negro, and who had not shown himself as agreed; that +I remained in the court giving directions, and making preparations to secure the +negro when arrested, and awaiting the return of Mr. Sawin; that I saw him after +ten o'clock, and he informed me that he had seen the parties in interest, and that +it had been arranged not to attempt the arrest until 11 o'clock,—that I told him +that it should not be delayed one moment, and directed him to notify the man who +was to point him out to come instantly; that he left for that purpose, and at ten +minutes before 11 returned, and said that the parties were about Taft's Coffee +House, and that the men engaged were also in readiness in that neighborhood; +that I went immediately with Mr. Warren, Mr. John H. Riley, and other deputies +to the said coffee-house, and there found all our men, nine in number, stationed in +and about the place,—that there were several negroes in and about the house, and +I inquired for the man who was to point out the alleged fugitive, and was informed +that he had not arrived; that Mr. Warren and myself went immediately into the +dining hall at the coffee-house, and to avoid suspicion, ordered some coffee, and +were waited upon by a negro, who subsequently proved to be the alleged fugitive; +that, not hearing any thing from our assistants, we took our coffee and rose to go +out and learn why we had not heard from them; that the negro went before us to +the bar-room, with the money to pay for the coffee, and in the passage between +the bar-room and hall, Mr. Sawin and Mr. Byrnes came up, and each took the +negro by an arm, and walked him out of the back passage way through a building +between the coffee-house and the square beside the court house to the court-room +as by me directed.</p> + +<p>That I immediately, while he was entering the court house, went to the office +of the city marshal, in the city hall, in the same square with the court house, and +there saw Mr. Francis Tukey, the city marshal, told him what had been done, +and stated, that as there would probably be a great crowd, his presence with the +police would be needed to preserve order, and keep the peace in and about the +court house, which is owned by the city, and in which all the courts of the commonwealth +for Suffolk county are held. That Mr. Tukey stated that it should be +attended to,—that I told him that I should notify the mayor instantly, and proceeded +up stairs to the mayor's office, where I found Hon. John P. Bigelow, +mayor of the city, and made the same communication and request to him, which I +had made to Mr. Tukey. To which the mayor said,—"Mr. Riley, I am sorry for +it." That I then left the office, at which time it was just half past 11 o'clock.</p> + +<p>That I went immediately to the court-house, and found the negro in the United +States court room, with the officers, and found all the doors closed, and was admitted +by the usual inside entrance,—that George T. Curtis, Esq., the United +States commissioner, was called, and came, and the claimant's counsel were sent +for,—that all the doors were kept closed excepting the usual entrance, which was +kept guarded by officers,—that the commissioner informed the fugitive, who was +named "Shadrach" in the warrant, of the character of the business, and asked +him if he wanted counsel,—to which he said that he did, and that his friends had +gone for counsel,—that while waiting for the counsel to come, the room began to +be filled with negroes and whites,—that the counsel for the prisoner appeared, +and claimed a delay, to give them opportunity to consult with their client, pending +which I desired Mr. Warren, the deputy marshal, to go to the navy yard at +Charlestown, about two miles distant, and ask Commodore Downes whether, +should a delay or adjournment take place, the navy yard might be used as a place +of detention, the United States not being permitted by the law of the state to use +the jails, and having none of their own. That the examination proceeded, and +after the reading of certain documents presented by the claimant's attorney, and +some discussion, the commissioner decided to grant the delay until Tuesday following +the 18th inst. That the counsel for the prisoner asked of the commissioner if +they might not remain and hold consultation with their client, and examine with +him the papers presented, to which the commissioner assented,—that the court +room was ordered to be cleared, and was cleared of all save some fifteen officers, +being all the reliable men whom we had been able to collect, the counsel, and +some newspaper reporters,—that Mr. Warren, at this time, which was about half +past 12, returned from the navy yard, and informed me that he had seen Commodore +Downes, who said he could not grant my request,—that I despatched what +officers I could spare to ask such of their friends to remain as would assist, and to +<span class='pagenum'><a name="Page_6" id="Page_6">[Pg 6]</a></span>procure all the additional force possible, intending to use the court house as a +place of detention. That Mr. Curtis, also left. That crowds of negroes and +others began to gather about the court room, and in the passage ways leading to +the court house,—that I went to one of the messengers who had charge of the +building, and desired him to have all the court house doors closed as soon as possible, +which were not necessary for use.</p> + +<p>That, at or before one o'clock, Mr. Ebenezer Noyes, the messenger of the +U. S. court, was despatched to the city marshal, whom he informed that the U. S. +marshal wanted every man that he could send to keep the peace in and about the court +house, to which the city marshal replied, that he had no men in, but would send +them over as they came in. That at about two o'clock, all the counsel had left, +except Mr. Charles G. Davis, and a reporter, who I learned was Elizur Wright, +one of the editors of the Commonwealth newspaper; that as the door was opened +for them to leave, which opened outwardly, the negroes without, who had filled +the passage way on the outside, took hold of the edges of the door as it opened, +and then a struggle ensued between the holders of the door within, and those +without. That Mr. Warren the deputy, immediately ran to the city marshal's +office, but not finding him in, went to the mayor's office, and was informed, that +the mayor had gone to dinner. That he then stated to those in his office that +there was a mob in and about the court house, and called upon them to send men +to help disperse it. That he then returned to the city marshal's office, found him +in his private room, informed him of the trouble in the court house, and asked +him to send all the men he could furnish, and whether he (Mr. Warren) could aid +him in getting his men, to which he said that Mr. Warren could not assist him in +the matter.</p> + +<p>That, meanwhile, the struggle at the door continued for some minutes, and the +crowd of negroes finally succeeded in forcing the door wide open, rushed in in +great numbers, overpowered all the officers, surrounded the negro, and he was +forced by them through the door, down the stairs, and out of the side door of the +court house, and thence through the streets to the section where most of the negroes +of the city reside,—that officers were despatched in pursuit, but have not +succeeded in finding his present abode.</p> + +<p>That from the time of the first notice to the mayor and city marshal, immediately +after the arrest, as heretofore stated, to the giving of this deposition, neither +the mayor nor the city marshal has appeared, nor has a single officer under their +direction appeared, or aided in attempting to disperse the mob, or in keeping the +peace; and that, in my opinion, it was the predetermined purpose of both not to +do their duty in keeping the peace in and about their court house; for the city +marshal, when requested by Henry S. Hallett, Esq., to disperse a similar mob, +which had collected about the office of his father, a U. S. commissioner, during +the excitement in the "Crafts" case, said that he had orders not to meddle in the +matter, as I am informed by the said Hallett, and that the city marshal gave a +similar answer to Watson Freeman, Esq., who asked him at about the same time +why he did not disperse the mob, as I am informed by the said Freeman.</p> + +<p>That Charles Devens, Jr., Esq., the U. S. marshal for this district, was at the +time of the arrest, returning from Washington, where he had gone on imperative +official business,—that it is proper to state here that neither the marshal nor his +deputy is authorized by law to employ a permanent force sufficient to resist a mob; +and that he has no authority to call to his aid the troops of the state or of the +United States.</p> + + +<div class='sign'>P. RILEY,</div> +<div class='right'>U. S. Deputy Marshal, Massachusetts District.</div> +</div> + +<hr style='width: 45%;' /> + +<div class="blockquot"><p>Commonwealth of Massachusetts, Suffolk County, February 17, 1851.—Then +personally appeared the above named Patrick Riley, and duly swore that the foregoing +deposition by him subscribed is true, as to facts stated to be in his personal +knowledge,—and that he believes that the statements therein given as made to +him by others are true.</p> + + +<div class='sign'>HORATIO WOODMAN, Justice of the Peace.</div> +</div> + +<hr style='width: 45%;' /> + +<p>After the reading of the above return, Samuel E. Sewall, Esq., protested +against placing the whole of the last named affidavit on file, as a part of the return,<span class='pagenum'><a name="Page_7" id="Page_7">[Pg 7]</a></span> +inasmuch as it purported to narrate facts which took place previous to the last +hearing, and the order thereon.</p> + +<p>The Commissioner inquired of Mr. Sewall, for whom he appeared. Answer, +"For the alleged fugitive, called Shadrach."</p> + +<p>The Commissioner,—"You cannot appear for a person who has avoided +process."</p> + +<p>Mr. Sewall. "The return in question shows, that he was forcibly removed. +He is claimed as property. There is no evidence before the Commissioner that +he has voluntarily avoided. So we are ready to proceed if the Commissioner +chooses."</p> + +<p>The Commissioner. "You cannot address the Court, Sir. It is well settled, +that a person who avoids process, cannot appear by attorney. The Marshal may +make such a return as he sees fit. I cannot interfere. But I will say that the +return seems to me proper, and it may be filed."</p> + +<p>Mr. Curtis declared the proceedings suspended, and ordered the Marshal to +proclaim the Court adjourned indefinitely.</p> + +<hr style='width: 45%;' /> + +<p>On Monday the 17th of February, 1851, Charles G. Davis, Esq., of Boston, an +attorney, and counsellor at law, was arrested upon a warrant issued by B. F. +Hallett, Esq., a U. S. Commissioner, upon complaints made to the District +Attorney, a copy of which is subjoined. Mr. Davis gave bail for his appearance.</p> + +<hr style='width: 45%;' /> + +<p>Thursday morning, February 20, 1851. U. S. Circuit Court Room. Before +B. F. Hallett, U. S. Commissioner.</p> + +<p style="text-align: center"> +<i>United States, vs. Charles G. Davis.</i><br /> +</p> + +<p>George Lunt, Esq., District Attorney, appeared for the United States.</p> + +<p>Richard H. Dana, Jr., and Charles G. Davis, Esquires., for the defence.</p> + +<p>Mr. Lunt moved that the original complaint be amended by the addition of another +count. No objection was made, and the following complaint, as amended, +was then read:—</p> + +<div class="blockquot"><p style="text-align: center"> +UNITED STATES OF AMERICA.</p> + +<div class='sign'><i>Massachusetts District, ss.</i></div> + +<p style="text-align: center">To B. F. Hallett, Esq., Commissioner of the Circuit Court of the United States, +for the District of Massachusetts. +</p> + +<p>George Lunt, Attorney of the United States, for the District of Massachusetts, +in behalf of said United States, on oath, complains, and informs your Honor, +that on the fifteenth day of February, in the year of our Lord one thousand eight +hundred and fifty-one, at Boston, in said District, one Charles G. Davis, of said +Boston, Esq., with force and arms, did aid, abet, and assist one Shadrach, otherwise +called Frederic, otherwise called Frederic Wilkins, the same being then and +there a person owing service or labor, and a fugitive from service or labor, to +escape from one John Caphart, who was then and there, the agent of one John +De Bree, claimant of said person, owing service or labor, and a fugitive from service +or labor as aforesaid; against the peace and dignity of the said United +States, and contrary to the form of the Statute in such case made and provided. +Wherefore, the said complainant complains that the said Charles G. Davis may be +apprehended, and held to answer to this complaint, and further dealt with, relative +to the same, according to law. And furthermore the said complainant prays that +Frederic D. Byrnes, Simpson Clark, Charles Sawin, Patrick Riley, John H. +Riley, John Caphart, may be duly summoned to appear and give evidence relative +to the subject matter of the complaint.</p> + + +<div class='sign'> +<span style="float: left;">(Signed) </span> <span class="smcap">George Lunt</span>, U. S. Attorney.</div> +<p> </p> +</div><p><span class='pagenum'><a name="Page_8" id="Page_8">[Pg 8]</a></span></p> + +<div class="blockquot"> +<div class='sign'><span class="smcap">Boston</span>, February 17th, 1851.</div> + +<p style="text-align: center">UNITED STATES OF AMERICA.</p> + +<div class='sign'><i>Massachusetts District, ss.</i></div> + + +<p>Then the above named George Lunt, personally appeared, and made oath to +the truth of the above complaint, by him subscribed.</p> + +<div class='sign'> +<span style="float: left;"> +Before me, (Signed)</span> B. F. HALLETT,<br /> +Commissioner of the U. S. Circuit Court, +for Massachusetts District.</div> +</div> + +<p><i>Amended Count.</i> Also for that on the fifteenth day of February, in the year of +our Lord one thousand eight hundred and fifty-one, at Boston, in said District, +one Charles G. Davis, with force and arms, did aid, abet and assist one Shadrach, +otherwise called Frederic, otherwise called Frederic Wilkins, the same being then +and there a person owing service or labor to escape from Charles Devens, junior, +Marshal of the United States, for said District of Massachusetts, who was then +and there, a person legally authorized to arrest said fugitive, and said fugitive +being then and there arrested pursuant to the authority given and declared in a +certain statute of the United States, approved on the eighteenth day of September, +in the year of our Lord one thousand eight hundred and fifty.</p> + +<p>Mr. Davis thereupon repeated his plea of not guilty.</p> + +<hr style='width: 45%;' /> + +<p>[Note. Upon the previous examination of Mr. Wright, Mr. Lunt for the +United States, had opened his case by stating that the complaint was based upon the +7th section of the act of September 18, 1850, (See Appendix), making it punishable +by fine and imprisonment, to aid, abet, or assist, in the escape of a fugitive +slave; and he should therefore call witnesses to show that the Shadrach named in +the complaint against Wright, was a fugitive, as therein alleged. (See complaint). +Mr. Lunt proceeded to call several witnesses, among whom Seth J. +Thomas, and John Caphart, were named. Mr. Caphart did not appear.</p> + +<p>Commissioner Hallett called the attention of the District Attorney to the Statute, +and said he was clearly of the opinion, and should rule, that, if it should appear +that Shadrach was an <i>alleged fugitive</i>, an attempt to rescue him would be an +offence under the act.</p> + +<p>Mr. Sewall, counsel for Mr. Wright, protested against the ruling.</p> + +<p>Colonel Seth J. Thomas was called to the stand. Mr. Thomas was called +upon to read the Norfolk documents, before exhibited to Commissioner Curtis, +tending to show that Shadrach was a fugitive.</p> + +<p>Mr. Sewall objected, that the documents could not be used as evidence in this +case. They could only be used, if at all, upon a complaint, under the act, for +the arrest and delivery of an alleged fugitive. They had not yet been received as +evidence in such a case; they were only admitted subject to future objections, and +the proceedings had been indefinitely postponed. There was no provision of the +statute, and no principle of law which would make them evidence in criminal +proceedings against a stranger, a free man, charged with making a rescue.</p> + +<p>The Commissioner stated that the papers should go in as papers having a tendency +to show that Shadrach was an <i>alleged fugitive</i>].</p> + +<hr style='width: 45%;' /> + +<p style="text-align: center">THE GOVERNMENT THEN OPENED ITS TESTIMONY.</p> + +<p><i>Patrick Riley.</i> Am a Deputy U. S. Marshal—was before Mr. G. T. Curtis on +Saturday, Feb. 15th; had an alleged fugitive called Shadrach, a black man, under +arrest by warrant from Mr. Curtis—came to this room about 11½ o'clock, A.M.; +remained till about 2; about 2 o'clock I was standing near Shadrach at end of +reporter's table inside of bar—he was consulting with his counsel; I was by +the table when I heard a cry that they were rushing in—the cry came from the<span class='pagenum'><a name="Page_9" id="Page_9">[Pg 9]</a></span> +officers. Mr. Elizur Wright and Mr. Davis were the only strangers here, except +Mr. Grimes, an alleged colored preacher. I immediately rushed to the door—some +officers were between the green door and the outer door; I put my shoulder to +green door—just then it cracked, the perpendicular piece was broken. I +pushed as hard as I could with one of my feet against the judges' desk; I was +there some three minutes; some one or two officers were outside pulling green +door toward them. The crowd rushed in, surrounded the prisoner and left. I +should think thirty or forty came into the room—Shadrach left with the crowd—there +was noise and tumult outside and inside—"tear him away," I heard, and +such expressions; cheers as he went out; before he went out I should think from +two or three hundred. I saw no alteration in conduct of Shadrach, before the +adjournment of court; saw him take his coat off and loosen his neckcloth—was +satisfied he had no weapon, and was anxious none should be given to him. Mr. +Davis was here as one of the counsel. I asked Shadrach if he was one of his +counsel, and he said, yes, he had four or five counsel. I asked Mr. Sewall who +were counsel, and some one said we four; S. Sewall, E. G. Loring, C. G. Davis +and Charles List, were the counsel. Mr. King remained, stating something about +his being counsel, and also Mr. Wells, his partner. (I told Mr. Wells to leave +and Mr. King said he was his partner, and I let him remain.) Mr. Davis was +here at the opening of Court, and Shadrach told me he was his counsel; he remained +at the table in consultation, from adjournment to about the time of the +rescue; do not know when he went out; do not remember his leaving the court-room, +and I was here all the time, with this exception; I passed out the door a +moment to give directions—I spoke to the messenger to close court house doors which +he did not wish to use. When I went out, counsel and officers and reporters were +here; that was before Mr. Wright came in. Four courts, C. C. Pleas, Supreme, +Municipal and Police had been in session that morning. About 2, directed Mr. +Davis and Mr. Wright to go out. I remained by prisoner with one or two officers +at door, and between me and the door; did not see Davis after he passed the +door; I saw him pass the inner door; Mr. Wright remained in; I remained by +the prisoner. When I rushed to the door, I do not remember seeing Mr. Davis; +I heard Mr. Davis say nothing offensive in the court room. [The original warrant +for the arrest of Shadrach is here shown.] This is the warrant, order and +return, etc., addressed to the Marshal or either of his Deputies; I arrested the +man mentioned in this warrant, and the same man escaped.</p> + +<p><i>To the Commissioner.</i> I did not come into court room with Shadrach, but I +knew him as the man arrested. The second return, as to the escape, refers to the +same party, Shadrach.</p> + +<p><i>Cross examination by Mr. Davis.</i> I saw you examining papers produced before +the Commissioner; saw you at table when Mr. Sewall called your name as counsel; +you were standing; Mr. Sewall was talking to prisoner, and called you—this +was immediately after order was given to clear the room.</p> + +<p><i>To the Commissioner.</i> Commissioner Curtis ordered prisoner be kept till Tuesday +morning safely; I carried it out in reference to prisoner.</p> + +<p><i>Cross examination resumed.</i> I walked to end of passage to speak to Mr. Merrill; +did not communicate to you a crowd was at the door. It is usual on exciting +occasions to have officers outside when the door is open; sometimes have an officer +outside. In other courts it is very common to have officers outside; there are +fewer trials with us, and the room is hired by United States; we have no right +to obstruct the entry. [Mr. Dexter was in room between adjournment and rescue.] +Don't know but I stated yesterday there were officers outside; perhaps that Stratton +was outside helping against the negroes. My printed return was made up of +what I supposed to be the truth. I meant in that to say I heard a cry, and supposed +there was no interpretation, except that the negroes broke the door open—saw +the officers—communicated with them afterward, and published the affidavit as +a general and true account of all that was material. Immediately after the rescue +I ordered officers to go to see where the man was; I remained. I confess I was +under great excitement; I had no conversation with Byrnes, Sawin or Clark, +before the affidavit was prepared and sworn to. I was enquired of where the +prisoner would be kept—I did not tell, but said if consultation was wanted we +could have it in lobby. You told me, and Mr. List told me you were waiting for +Mr. Dana. I told List that Mr. Dana asked me for a copy of the warrant before +two o'clock—this was some few minutes before the rescue. Mr. List had just<span class='pagenum'><a name="Page_10" id="Page_10">[Pg 10]</a></span> +left with my copy of warrant, and had not returned at the time of the rescue,—did +not know the use to be made of it. My impression is, that Mr. Sewall, yourself +and Mr. Wright, were moving out together, but that Mr. Sewall got out before +you did. There were three persons to leave, and I think you were all gradually +moving to the door—I had no doubt you could get out safely and without disturbance—can't +say you conversed with Mr. Wright or the preacher—there was some +general conversation—saw you and Mr. Wright have no private conversation. I +told Mr. Wright he might remain if prisoner assented. Perhaps the prisoner +would like his counsel—Shadrach assented. I let Mr. Wright go up and speak +to prisoner; I kept my eye on Mr. Wright when he spoke to the prisoner—he +went up and took hold of his hand—Mr. Loring left the room sometime before. +When Mr. Wright came in, I was surprised. You said Grimes better not come +in—counsel asked me if a friend might remain with prisoner during his arrest—Messrs. +List, Sewall and Davis were present—can't swear who asked me.</p> + +<p><i>To the Commissioner.</i> Some colored friend I supposed—can't swear it was +Davis asked it.</p> + +<p><i>Mr. Dana.</i> Do you know the person you arrested, was the person named in +the warrant?</p> + +<p><i>Answer.</i> The person rescued was the person arrested under the warrant, but +cannot say he was the person named in the warrant.</p> + +<p><i>The Commissioner.</i> Do you contradict your return? The return is conclusive.</p> + +<p><i>Mr. Lunt.</i> Mr. Riley, do you mean to contradict your return! I warn you, +Sir!</p> + +<p><i>Mr. Dana.</i> He has contradicted it. Mr. Riley, you didn't know that the +person you arrested was the man named in the original warrant and complaint, as +the slave of Debree?</p> + +<p><i>Mr. Lunt.</i> I warn you, Mr. Riley, not to give that testimony! I warn you, +Sir!</p> + +<p><i>The Commissioner.</i> The return of the officer is conclusive.</p> + +<p><i>Mr. Dana.</i> Does the Commissioner mean to rule that a man may be hung in a +criminal case, on the return of an officer in another, and that a civil case? This case +goes further. Here the very man who made the return is on the stand. Cannot +we show by him that a part of this return is matter of form, and that he does not +know whether it is true or not?</p> + +<p><i>The Commissioner.</i> I think, Sir, the return of the officer is conclusive in all +these proceedings.</p> + +<p><i>Mr. Dana.</i> But the fact is already in—and the return is nullified. The objection +is too late.</p> + +<p><i>The Commissioner.</i> If he has answered, it may go in, <i>de bene esse</i>.</p> + +<p><i>Mr. Lunt.</i> Does the Commissioner mean to rule in that testimony?</p> + +<p><i>The Commissioner.</i> I receive it <i>de bene esse</i>; to give such weight to it as I shall +think proper.</p> + +<p><i>Mr. Dana.</i> Mr. Riley, do you know whether the man you arrested was the +man named in the original warrant?</p> + +<p><i>Mr. Riley.</i> Hardly a man is arrested known to the officer. The officer is +responsible for mistakes. I don't know that the man arrested was the man named +in the warrant.</p> + +<p>Did not apprehend a rescue or an attempt when Davis left. He left at my +request at the time he left. He did not leave the room from all I saw, until his +final departure—don't recollect seeing him outside the bar, nor conversing privately +with any person beside counsel. He is known to me as a counsellor practising +law in Circuit Court.</p> + +<p><i>To District Attorney.</i> There might have been fifteen persons in court room +when I left. My attention was not directed to Davis particularly. He <i>might</i> +have been absent without my knowledge.</p> + +<p><i>To Mr. Dana.</i> I kept my eye on the door after the room was cleared—ordered +that no one should be admitted.</p> + +<p><i>Charles Sawin, Dep. Marsh.</i> Soon after Mr. Davis came in and sat down, he +rose, coming towards me, and asked who Mr. Clark was, whether he was a southern +man? I said, "No, that he was a citizen of Boston, and had been for some +years." I asked Mr. Davis what there was in the wind, and he replied—"Not +anything that I know of." He then added, "This is a damned dirty piece of +business." This was before the proceedings before the Commissioner had closed. +Afterwards when the proceedings had ended, Mr. Byrnes was standing within the<span class='pagenum'><a name="Page_11" id="Page_11">[Pg 11]</a></span> +rail and I was outside, Mr. Davis said, "Well, you ought all to have your throats +cut." The attorneys were present. In all there were about twenty persons present. +It was after the order had been given to clear the room. I made no reply +to remark. I thought it was uncalled for. I missed Mr. Wright and Mr. Davis +about the same time. I did not see him go out. I was near the prisoner. I saw +a tallish man whisper in the prisoner's ear during the hearing. The prisoner then +took off his coat, and rolled up his shirt sleeves, and adjust his neckerchief and +look kind of fierce. It was a white man that whispered to the prisoner. Mr. +Davis might have been gone a minute before the rush was made to break in.</p> + +<p><i>Cross examined by Mr. Davis.</i> I don't know that your remark was, "this is +damned dirty business for you to be in." My impression is that you did not +qualify it. I did not consider it mean business. I thought it was legal business. +I don't know that what you had said was the conclusion of a conversation that you +had been having with Mr. Byrnes, and I don't recollect that the remark was, +"Well, then, you ought to have your throats cut." Mr. Byrnes was near, and +so were others of the counsel with you. There was a Mr. Morris, or Morrison, +with them.</p> + +<p><i>Mr. Davis.</i> What Mr. Morris?</p> + +<p><i>Sawin.</i> That one! (pointing to Mr. Morris, who was in the bar) The little +darkey lawyer!</p> + +<p><i>The Commissioner.</i> Mr. Morris is a member of the bar, and entitled to be +spoken of with respect, as much as the white lawyers who were engaged in the +case.</p> + +<p><i>Sawin.</i> I meant no disrespect. I only used the expression for the purpose of +designating the man.</p> + +<p><i>Mr. Dean.</i> The remark seems to amuse the district attorney.</p> + +<p><i>Mr. Lunt.</i> I cannot always control my muscles.</p> + +<p><i>Sawin.</i> (To Mr. Davis.) Have known you four or five years—never told you +I was Deputy Marshal. Have given you business—considered the remark not +unfriendly—didn't think much of it. The man was arrested in his apron and +shirt sleeves—coat was afterwards brought in—don't know that he put his coat on +again before the rescue. Heard Mr. Riley say to him, "Now, pretty soon, we'll +have dinner." This was about the time you went out—thought you were counsel +all the time.</p> + +<p><i>Fred. D. Byrnes.</i> Am a Deputy Marshal. Saw Davis in room on Saturday +sometime while proceedings were going on. The first thing I heard Mr. Davis +say, was "Damn mean business." The prisoner was in the bar. Mr. Sawin was +on one side of the prisoner, and Mr. Clark on the other. Mr. Davis was within +two feet of the prisoner, and I was near Mr. Davis. This was before the adjournment. +Afterwards, near the rail on the left of the room, Mr. Davis came along +and put his hand on my shoulder, and said—"This is a damned pretty mess," or, +"you are a damned pretty set," and "every one of you ought to have your +throats cut." After that, and when nearly all the people had left, Mr. Wright +and Davis came along, and I said to Mr. Davis, "I always took you for a gentleman +until to-day, but I am very sorry to say I can't say it now." He said, +"Why?" I repeated his remark about cutting our throats, and he replied—"Well, +I say so now." Mr. Davis then went out. I saw nothing out of the +way when he went out. After Mr. Wright had passed out, I saw Mr. Davis +near the wall on the right of the door, and close to the steps. I heard a voice +that I then took to be Mr. Davis's, say—"Take him out, boys—take him out." +I did not see his lips move, but I thought it was him who spoke the words, and I +think so now. I am acquainted with Mr. Davis, and knew it to be Mr. Davis's +voice, and no other one's voice. His shoulder was resting, or leaning against the +wall. I had passed through the baize door with Mr. Wright, so that I could see +a person at the corner of the wall at the outer door.</p> + +<p><i>Cross examined.</i> Mr. Hutchins had the charge of the door. I did not notice +his position. Did see Mr. Clark's position. I saw nothing different in your +going out from others going out. Clark and Hutchins were in front of me. I +do not think the baize door closed on you before Mr. Wright came. The shout +was after the pulling of the door commenced. Before that there had been several +attempts to pull the door open. I had seen the ends of fingers on the edge of the +door before that repeatedly. There was no rush when you passed out; but there +may have been some hands on the door. I had gently led Mr. Wright as far out<span class='pagenum'><a name="Page_12" id="Page_12">[Pg 12]</a></span> +as the threshold when the rush commenced. I saw no obstructions in your way +when you went out. I can't say whether Mr. Hutchins had to let go of the knob +or not, when you got out. I thought at the time, that you meant to call the people +in, and I so told our people then.</p> + +<p>Mr. Davis cross examined the witness very minutely as to the repeated opening +and shutting of the baize and outer door during the minute prior to the rush, and +also as to his position from moment to moment, and the positions of Clark and +Hutchins, at and near the door. He testified that he was somewhat hard of hearing, +more so some days than on others.</p> + +<p><i>To Mr. Dana.</i> I think Saturday was one of my hearing days. I don't hear +so well to-day. My deafness came on when Elder Knapp was here. I was +called out on duty at the time of the disturbance in Bowdoin square, in 1843, or +thereabouts.</p> + +<p><i>To Mr. Lunt.</i> I saw a cleaver in the hands of a black man outside the door. +He was standing rather back.</p> + +<p><i>To Mr. Dana.</i> I know the voice I took for Mr. Davis's was not a black man's +voice. I know a black voice usually from a white man's. It was a white man's +voice, and I thought at the time it was Mr. Davis's. I did not think it was Mr. +Davis's voice because of its being a white man's voice. It was my opinion that it +was not the voice of a colored man. There were many other voices heard calling +out at the time. My first reason for supposing it was Mr. Davis's voice was that +it was not a black man's voice. Within the past three years I have casually conversed +several times with Mr. Davis. Know him as I know a thousand other +people in Boston.</p> + +<p><i>To Mr. Lunt.</i> That the voice I heard was not a black man's was only one of +my reasons for supposing the voice was that of Mr. Davis.</p> + +<p>Friday, Feb. 21st. <i>Calvin Hutchins</i> was called, and testified, that he was stationed +at the door, and had hold of it, when Mr. Davis came to the door to go +out. Mr. Byrnes spoke to him, and I opened the door for him; that is, I let it +open, there being others pressing upon the door. I let the door open enough to +let him out. I saw the stairway all filled. The stairs leading up were all filled +also. When he stepped round, he got his back against the side of the door, and +clapped his left hand up against the door. There was a cry to go in. I should +suppose by the fingers on the door that five or six got hold of it to pull it round. +I had already opened it as far as for others, and there was sufficient room for him +to go out. I could not tell where he went to. He stood there when the door got +started, and I was slapped round outside into the passage-way.</p> + +<p><i>Cross examined.</i> (To Mr. Davis.) To go out the best way to clear the crowd, +you ought to have turned to your right; but you faced round to the door, putting +your left hand upon it, and opening it more than was necessary. Some one had +hold of the knob of the door at the time, and there were fingers on the edges. I +was holding on to the door to give you space enough to get out, and was contending +with the negroes by keeping the door from being opened more than sufficient +to let you out. You slid out to the right.</p> + +<p><i>To the Commissioner.</i> Mr. Davis's back was against the door jam, or door post +on the right, when his hand was on the door. [Witness goes to the door, and +explains the position of himself and Mr. Davis, at the moment Mr. Davis had his +hand upon the partly opened door.] The door opens outwardly from right hand +side. Didn't see Davis afterwards.</p> + +<hr style='width: 45%;' /> + +<p>Col. Seth J. Thomas was next called, and put, by the counsel for the defence, +on his <i>voir dire</i>, as to any interest he might have in the penalties provided in the +act. He answered that he was the counsel for Mr. De Bree, the owner of the +alleged fugitive, and that he had received written instructions from his client in +relation to the case of Shadrach; but he did not hold such a power of attorney as +is contemplated in the fugitive act. His relations to the case were those of an +attorney and counsellor of law, and as such he had advised with Mr. Caphart, the +agent, who held such a power of attorney from Mr. De Bree as is intended in the +act. Fees in no manner depended upon the result of the proceedings in the case.</p> + +<p>Mr. Dana inquired what was to be proved by this witness.<span class='pagenum'><a name="Page_13" id="Page_13">[Pg 13]</a></span></p> + +<p><i>Mr. Lunt.</i> That the person under arrest was claimed as a fugitive.</p> + +<p><i>Mr. Thomas.</i> Was here on Saturday last, saw a person called Shadrach, who +was alleged to be a fugitive slave.</p> + +<p>This evidence was strongly objected to as hearsay, but held admissible by the +Commissioner.</p> + +<p><i>Cross examined.</i> My means of information is confined to others. Don't know +that I ever saw the negro before.</p> + +<p>The Commissioner said that he had ruled that the Government were not obliged +to show that Shadrach was a slave, and that no further evidence was necessary to +show that he was arrested and escaped.</p> + +<p><i>Mr. Davis.</i> The question now arises under the present warrant and complaint, +which alleges not only that one Shadrach was a fugitive slave; but that the same +Shadrach who was a slave to one De Bree, was rescued. The Commissioner has +ruled that the Government are not obliged to prove that the man under arrest was +a fugitive, or was a slave. Does the Commissioner also rule that the Government +need not show that the man arrested was the man claimed, and that the man rescued +was Shadrach?</p> + +<p><i>The Commissioner.</i> The Government may prove by Col. Thomas that the man +arrested was the man claimed.</p> + +<p>Here the question was discussed, whether the prosecution were bound to prove +that the colored man arrested was the person intended in the warrant, and named +Shadrach. The Commissioner again held that the returns on the warrant were +<i>prima facie</i> evidence that the man arrested was the said Shadrach.</p> + +<p>Mr. Dana thought Mr. Riley had destroyed the presumption arising from the +return by having testified that he did not personally know whether the man was +Shadrach or not; all he could say was that he knew he was the man he had +arrested as Shadrach.</p> + +<p>Col. Thomas was allowed to testify, that the man arrested and brought into the +court room was claimed by Caphart as Shadrach. When he came into the room +Caphart said, "This is my boy." Col. Thomas produced a paper and testified +to it as the power of attorney. Objected to on the ground that the signature was +not proved. The Commissioner held that it was admissible as one of the papers +before Mr. Curtis.</p> + +<p><i>Simpson Clark</i>, recalled.</p> + +<p><i>Mr. Lunt.</i> I propose to show that Shadrach admitted he was a slave, and +owned by De Bree, and that his name was Shadrach.</p> + +<p><i>Mr. Dana.</i> It is true the Commissioner has admitted Col. Thomas to testify +to the declaration of De Bree's agent, as evidence that De Bree claimed the man; +but this evidence is still more remote. This is a criminal prosecution. Is a man +to be bound by statements of others? This matter was not adjudicated. How +can the man's admission that his name is Shadrach affect us? He is not placed +upon the stand. He is not under oath. His admission is that his name is Shadrach, +not that he is a slave. Moreover, the act provides that the party claimed +shall not be received as a witness.</p> + +<p><i>The Commissioner.</i> An alleged fugitive is only excluded from being a witness +in the case of a complaint against himself as a fugitive. This does not exclude +his admissions in the case of a criminal trial of another party. His admission is +the best possible evidence of identity under the act. See Law in Appendix, Sec. +6. ["In all proceedings under this act"]</p> + +<p><i>Mr. Clark.</i> Am a constable. Am employed specially. After the man was +brought in, he asked who it was that claimed him. He first asked me, and I +referred him to Mr. Sawin. Mr. Sawin named one person to him, and he said he +did not know him. Mr. Sawin then named another person to him, and he said he +did not know him. He then said he was named Shadrach, and commenced to tell +me the circumstances of his coming away, but I advised him not to speak to me +about it, as I might be made a witness against him. I told him not to tell any one +but his counsel; and Mr. List, his counsel, told him the same, and he stopped<span class='pagenum'><a name="Page_14" id="Page_14">[Pg 14]</a></span> +talking to the officers and others. I was at the further side of the door when Mr. +Davis went out. [Describes the scene.]</p> + +<p><i>Mr. Lunt.</i> Did you hear Mr. Davis testify the other day, if so, what did he +say?</p> + +<p><i>Mr. Clark.</i> He said when he got down to the landing he first thought there +was to be a rescue, and he saw a man pass two canes up.</p> + +<p><i>To Mr. Davis.</i> I had some conversation with you in the room near the prisoner, +after Mr. Wright came in, while the minister was here. The prisoner said +something about his trust in God.</p> + +<p><i>Mr. Davis.</i> Do you remember his saying anything further concerning his position, +showing any religious feeling?</p> + +<p><i>Mr. Lunt.</i> Religious feelings have nothing to do with this case.</p> + +<p><i>Mr. Davis.</i> I am aware of that, I waive the inquiry.</p> + +<p><i>Mr. Clark.</i> I don't know that I saw anything peculiar in your conduct. Many +persons spoke to Shadrach, besides the person who whispered to him. While +my back was turned towards Shadrach, I heard some one say to him—"We will +stand by you till death."</p> + +<p><i>George T. Curtis, Esq.</i>, U. S. Commissioner, who held the examination in the +case of Shadrach, testified that there was no actual disturbance during the hearing. +About the time of the adjournment, it might have been a minute or so afterwards, +a tall young colored man standing behind the rail, approached Shadrach, +and, addressing him, said—"We will stand by you." Mr. Riley, the deputy +marshal, observed the man, and heard the remark, and checked him, and sent an +officer to remove him to another part of the room. Mr. Davis was present, but I +did not know he was one of Shadrach's counsel. He neither said or did anything, +so far as I saw, from which I could infer he was present in that capacity. Mr. +E. G. Loring, and Mr. Sewall were the only recognized counsel; that is, they +were the only persons who addressed the court, and I should not have allowed +him more than two counsel.</p> + +<p><i>To Mr. Dana.</i> It is common to have more counsel than address the court. I +do not know that Mr. Davis may not have been one of these. I should not have +limited him, except as to such counsel as should address the court. [Witness +identifies the papers produced before him, and the order he passed for the adjournment, +&c.]</p> + +<p><i>Austin S. Cushing.</i> I was present on Saturday, while the proceedings were +going on. After the order was given for clearing the court room, I saw a man +standing behind the rail, who was disinclined to leave. He left rather slowly, and, +as he was leaving, he reached his hand over to the prisoner, and, I believe, calling +him "Fred," said—"We will stand by you till the death." It was a colored +man.</p> + +<p><i>Jessee P. Prescott</i>, in the employ of the Fitchburg Railroad Company, testified +that he was present in the passage way at the time of the rescue, and described +the scene. A stout negro man came up the passage way from the supreme court +room. He was peculiarly dressed, and two negroes said to him—"You are just +the man we want." Another said—"That's the boy for them," pointing to him. +There being some difficulty in getting the door open, some sung out—"Go it. +Life or death, we are prepared for 'em." Another said—"Damned bloodhounds." +Others said—"Knife 'em." One man, whom he took to be a minister, +dissuaded the other party from acts of violence. Saw the rush into the court +room, and saw the fugitive borne out in the arms of four or five persons. I am +sure I saw Mr. Davis go into the court room by the east door, some five or ten +minutes before the door was forced open. One man had a sword.</p> + +<p><i>Cross examined.</i> I had seen Mr. Davis before. I had seen him at the Thompson +meeting at the Tremont Temple. I think I had seen him trying a case in +court also. Saw you at the Chaplin meeting. The person I took to be you was +in a hurry—had no hat on, and spoke to a man as he was coming in. Said, +"How do you do," merely. It was not more than ten minutes before the adjournment.</p> + +<p>Mr. Lunt here rested the case for the prosecution.</p> + +<p>Mr. Dana moved the discharge of the defendant, on the ground of failure of +proof, to raise the question of the construction of the statute, and asked the commissioner +if he adhered to his ruling in Mr. Wright's case.</p> + +<p>The commissioner denied the motion, and said that he considered it sufficient +for the Government to prove that a person claimed as a slave had been rescued.<span class='pagenum'><a name="Page_15" id="Page_15">[Pg 15]</a></span></p> + +<p> </p> +<p style="text-align: center">TESTIMONY FOR THE DEFENCE.</p> + +<p>Mr. Davis now called a number of witnesses for the defence, and Mr. Dana +gave notice that the first set to be examined were expected to testify to the character +of the government witness, Frederick D. Byrnes, for truth and veracity.</p> + +<hr style='width: 45%;' /> + +<p>William Ross was called to the stand as to the character of Byrnes, but Mr. +Byrnes being absent, was withdrawn.</p> + +<p>Mr. Riley recalled by defence. He was quite confident that Mr. Davis did not +leave the court room, and come in again, just preceding the rescue. He seemed +to be busy in talking with the associate counsel.</p> + +<p>The prisoner put on his coat while within the bar, before Mr. Davis left the +room.</p> + +<p><i>To Mr. Lunt.</i> On Saturday morning Mr. Davis asked me if I had any more +Craft's cases. I told him not that I knew of. This was in the entry of the Court +House. While in the Court Room after the adjournment, he asked me if he understood +me to say in the morning that no warrant was out. I had no warrant +when Mr. Davis spoke to me in the morning. The warrant was in the hands of +another deputy marshal, and I had not then seen it. I told Mr. Davis that +whether I had known, or not, of the warrant, I should have given him the same +answer. The reply rather surprised Mr. Davis. I think no one could have entered +the easterly door without my knowledge.</p> + +<p><i>Cross Examined.</i> <i>To Mr. Davis.</i> It was between 9 and 10 A.M., that I saw +you. I was standing at the outer door, you passed, and I first asked you if you +had seen Mr. George P. Curtis.</p> + +<p><i>Mr. Davis.</i> It was that which reminded me of fugitive slave warrants?</p> + +<p><i>Mr. Riley.</i> You answered the question, and then asked about warrants. I +was waiting for Mr. Sawin, and Mr. Curtis at the time.</p> + +<p><i>Henry Homer,</i> assistant clerk of the Municipal Court. At the time of the mob, +I was standing on the steps, about three above the level of the U. S. court-room. +I had a view of the whole scene. The wooden door was open, and Mr. Hutchins +had hold of it. The crowd was not very large then, nor pressing very hard. +Three good officers outside could have protected the door, and cleared the passage. +Then there were cries of "go in, and take him out," and the pressure increased +against the door, and all at once it gave way, and in the crowd went. All done +in ten seconds, I should think. Never saw anything done so quick before. Saw +two men take hold of Shadrach and fetch him out, about twenty other men following. +The stairs were clear when they brought Shadrach out, and they kind of +threw him down the stairs. The crowd was all behind him. There was no crowd +obstructing the stairs all the way down. The collection was outside. In passing +him out into the street, they tore his coat off, and took his hat off. His coat laid +in the mud, and his hat laid there. A woman seized him by the hair and said—"God-bless +you. Have they got you?" Shadrach was very much frightened,—did +not seem to know whether he had got among his friends or enemies. I saw +this from the window at the head of the stairs.</p> + +<p>I did not see Mr. Wright. I think Mr. Davis was on the platform, or on the third +stair going down. I did not hear his voice. I think I should have noticed it, if +he had spoken. I heard no white voice. The voices were all of colored people. +I am well acquainted with your voice (to Mr. Davis),—I have heard the music of +it often enough, both in court and out of it. I will not swear that Mr. Davis did +not speak; but I will swear that I don't remember to have heard any voices but +those of colored people. I had been out to get a volume to see the statute, forbidding +the officers of this state from aiding in any manner in making arrests under +the old law for taking fugitives.</p> + +<p><i>To the Commissioner.</i>—I remained on the stairs step above the landing until +Shadrach was brought out. I then went up stairs to get out of the way. I saw +no man with two canes; saw no man with a club; saw no man with a sword. I +am a justice of the peace, but I did not know what duty it imposed on me at that +time. The affair was sudden, and I was somewhat excited.</p> + +<p><i>Afternoon.</i>—Gustavus Andrews, jailor. I have known Frederick D. Byrnes +ever since he came to Boston. His general reputation for truth and veracity +is bad.</p> + +<p><i>Cross Examined.</i> I heard his character discussed by officers, and other persons.<span class='pagenum'><a name="Page_16" id="Page_16">[Pg 16]</a></span> +I cannot call to mind at this moment any person, not an officer, whom I have +heard say he was not a man to be believed.</p> + +<p><i>Hiram Wellington, Esq.</i> Attorney at Law. Had known Frederick D. Byrnes +about seven years—his general reputation for truth and veracity is decidedly bad.</p> + +<p><i>Cross Examined.</i>—I never had any difficulty with him, that I know of. He +once brought a small suit against me for constable's fees, and recovered, I believe. +It was in the justices court. I don't know that he ever brought any complaint +against me. If he did it was a secret one. I never knew of his complaining +against me to the grand jury.</p> + +<p><i>William Ross</i>, tailor.—I should like to know what I am summoned here for. I +don't wish to testify. Have known Mr. Byrnes some three years. His general +character for truth and veracity, I should say, is decidedly bad.</p> + +<p><i>Cross Examined.</i> Who have you heard speak of it? I don't wish to say. +There have been twenty people in my place within a week to inquire how such a +liar could get into office. I was once called to court in Cambridge to testify about +his character, and he called upon me to ask what I had against him. He is a +well-known man. He became known on account of having been brought up for +adultery. I could name people whom I have heard speak of him. I have heard +Martha Adams speak of him; she lived with him when he kept the Cape Ann +Cottage, which was mysteriously burned down, and the insurance recovered. I +might name others, but I don't think I am bound to mention them. Mr. Byrnes +knows who they are.</p> + +<p><i>Derastus Clapp</i>, Constable.—Have known Mr. Byrnes five or six years; have +not heard his character for truth called in question these two years; have not +heard it discussed within that period. He has kept in this city during this time.</p> + +<p><i>The Commissioner.</i>—I think you cannot ask about reputation two years ago.</p> + +<p><i>Mr. Lunt</i> said it was clearly inadmissible.</p> + +<p><i>Mr. Dana</i> read a case in Wendall's Reports in which it was decided that the +previous reputation could be shown. It is often the best evidence.</p> + +<p><i>The Commissioner</i> thought he should take time to decide the point.</p> + +<p><i>Mr. Lunt</i> said there might be a difference of practice in different states.</p> + +<p><i>Ira Gibbs.</i>—Have lived in Boston between 30 and 40 years—was city marshal. +Have known Mr. Byrnes several years. I can't say but that I have heard his character +spoken against in relation to truth and veracity. I don't think I have heard it +frequently spoken about, but when spoken of, it has been against him.</p> + +<p><i>Charles Smith</i>—Constable and Coroner—Have known Mr. Byrnes about ten +years; his character for truth, &c., bad.</p> + +<p><i>Cross Examined.</i>—The most I have heard about him has been from officers. +Mr. Dexter keeps in the office with me. He has had difficulty with Mr. Byrnes. +So has Mr. Leighton, who keeps in our office. I think I have heard his truth discussed, +in reference to cases in which he was a witness. One of the cases was at +East Cambridge. It depended wholly on his testimony, I understood, and the other +side prevailed. These discussions about his character were revived on account of +his being appointed deputy U. S. marshal. I don't know that those who spoke of +him wanted the office. Don't know any body who wants his office.</p> + +<p>Officers <i>Rice</i>, <i>Dexter</i>, <i>Neale</i>, and <i>Luther Hutchins</i>, examined as to the character +of Mr. Byrnes for truth, testified to the same effect as the preceding witness.</p> + +<p><i>Thomas S. Harlow, Esq.</i>, Counseller at Law. I have known Frederick D. +Byrnes seven or eight years. His reputation for truth and veracity is bad.</p> + +<p><i>Cross Examined.</i>—Have heard him spoken of in the regular course of business, +about the courts among officers. I had some business connection with Mr. Wellington, +when he was sued by Mr. Byrnes.</p> + +<p>At this stage, the court adjourned till Saturday, Feb. 22.</p> + +<p><i>Saturday, February 22d.</i>—Commissioner Hallett took his seat at 10 o'clock. +Defence resumed. On the question reserved yesterday, the Commissioner decided +in relation to the knowledge of Constable Clapp of the reputation of Mr. Byrnes, +he having stated that he had not heard his truth and veracity spoken of for two +years, that he must first be inquired of generally as to Mr. Byrnes's reputation. +Mr. Clapp answered as he did yesterday, and then Mr. Dana was allowed to ask +him if he knew anything of his reputation for truth prior to that period. He replied +that for about five years previous to the past two he had heard his reputation for +truth and veracity spoken of. It was bad.</p> + +<p><i>Cross Examined.</i>—When he was so spoken of, reference was had to some busi<span class='pagenum'><a name="Page_17" id="Page_17">[Pg 17]</a></span>ness +matters; to a civil case at New Bedford, and a criminal case in Boston. It +was his character for truth and veracity that was spoken of, and had no relation to +his honesty in not paying what he owed.</p> + +<p><i>John G. King. Esq.</i>, Counsellor at Law.—I was in this court room on Saturday +forenoon. Mr. Davis was in when I came in. I ascertained that he was +acting as counsel for the prisoner. After the adjournment I left Mr. Davis in consultation +with the other counsel. Before leaving I drew up a power of attorney, +which the man Shadrach signed. It was made to Robert Morris, and was +intended to give him authority to act in reference to an application for a habeas +corpus. When Mr. Riley was clearing the room, Shadrach pointed out Mr. Davis +as one of his counsel, and as such Mr. Riley allowed him to stay.</p> + +<p><i>Marcus Morton, Jr., Esq.</i>, Counsellor at Law.—I was sent for on Saturday +morning by Shadrach. I had known him from six to nine months. There were +but few persons in the court room when I came in. It was proposed to raise +money for his value, if it should be decided to send him back. I went to the office +of Colonel Thomas, the claimant's counsel, in relation to procuring the man's liberation +in that way. Nothing resulted from the conversation with Colonel Thomas. +I don't know that Mr. Davis knew of it. I know that Mr. Davis was twice recognized +by Shadrach as his counsel. When I came in to the court room, Shadrach +appeared excited, and was talking a good deal. I told him he had better keep his +mouth shut, and not to speak to any person except his counsel. He asked who he +should have, and I designated among others, Mr. Davis for counsel.</p> + +<p><i>Cross Examined.</i>—I communicated my intention to E. G. Loring. I was to +have an answer from Colonel Thomas on Monday morning. I don't recollect +mentioning this to any of the counsel. I did mention it to several people. The +case had been postponed till Tuesday, before I called upon Colonel Thomas.</p> + +<p><i>Charles List, Esq.</i>, Counsellor at Law. I was in this room on Saturday. Mr. +Davis was here in the capacity of counsel for Shadrach. I heard Shadrach ask +him to serve as counsel. Mr. Davis joined Mr. Sewall and myself at the table in +examining the papers sent on by the owner for establishing his claims to Shadrach. +Mr. Davis examined them very thoroughly, and expressed a decided opinion that +the papers were not sufficient under the statute. I asked Mr. Davis who the men +guarding the prisoner were. He said one was Sawin, whom he knew well, and +he would inquire of him the other's name. He did so, and told me his name was +Clark. Did not state to Davis my object in asking. Was told here there were +to be proceedings for habeas corpus. I asked Riley for copy of the warrant. He +said he had one for Mr. Dana, which he was to have before 2 o'clock. I told +him if he would let me have it, I would give it to Mr. Dana before 2. Sewall +and Mr. Davis were then present. I went to Mr. Dana's office. I left eight or +ten minutes before two, leaving Mr. Davis. I think Mr. Davis did not leave the +court room any time while I was there. I was there from the commencement of +the hearing, except for a short time that I stepped into the law library, to see if a +particular gentleman was there. I think I went into the library before the Commissioner +left. I spoke with Mr. Davis frequently in the court room, and I think +I should have known it, if he had gone out. No attempt had been made to force +the door when I left. I had no difficulty in getting through the people in descending +the stairs, or going through the passage, getting out of the court house.</p> + +<p><i>Mr. Dana</i> here proposed to prove that Mr. Davis at various places and times +had advised the colored people against acts of violence. [The Commissioner was +inclined to allow the inquiry].</p> + +<p><i>Mr. Lunt</i> objected to the inquiry, the charge against Mr. Davis being that he +committed a specific act.</p> + +<p><i>Mr. Dana</i> waived the point for the present.</p> + +<p><i>Mr. List</i> resumed. It was agreed in the court room that the counsel should +hold a meeting at Mr. Sewall's office at three o'clock, and another meeting was +to be holden at half past nine the next morning. The meeting was not held that +afternoon on account of the rescue. The meeting was held Sunday morning, +and Mr. Davis was present. Mr. Davis called attention again to the insufficiency +of the papers. Question then arose whether proceedings would go on, and what +Commissioner might do.</p> + +<p><i>Cross Examined.</i>—I am not sure that Mr. Davis was one of those who agreed +to hold the meeting in the afternoon. There were six who were considered as +counsel. These were named E. G. Loring, Mr. Sewall, Mr. Davis, Mr. Morris,<span class='pagenum'><a name="Page_18" id="Page_18">[Pg 18]</a></span> +Mr. King, and myself. I cannot say that Mr. Davis was not out of my sight five +minutes. When I went out, the officer opened the door sufficient to let me out, +using no particular care with the door. There were in the entry about half as +many people as it would contain; chiefly negroes; did not recognise any one, +black or white, that I knew. I first went to Mr. Dana's office. I was in Court +street going towards Washington street, when the rescue took place. I could +not believe it when I first heard of the rescue, and went back to inquire. I had +thought it possible a rescue would be attempted, for the colored people were very +much against the law. I have spoken against the law, and probably shall again. +[Manifestations of applause on the part of the spectators. Order commanded by +the Commissioner].</p> + +<p><i>Mr. Lunt</i> here put the question,—Do you approve of the rescue? Mr. Dana +objected, and the Commissioner sustained the objection. Mr. List preferred to +answer, and said that he was opposed to any violation of law, and had advised +against violations of the law.</p> + +<p><i>George W. Adams, Esq.</i>, Counsellor at Law.—I was coming into the East +door of the court house near 2 o'clock, on Saturday, met Davis going through the +passage, near the marshal's office,—saw him pass between the pillars in front of +the office. I talked with him two or three minutes. I heard noises and shouts +above, while I was talking with Mr. Davis. Men were running in and out, when +I left him, I ran out to Court street, and saw the crowd moving off.</p> + +<p><i>Alonzo F. Neale</i>, Constable Neale—I was in the court room on Saturday—was +called in by Mr. Noyes, the messenger of the U. S. Courts—I saw Mr. Davis in +the court room. I saw him go out of the court room. Somebody asked me to let +Mr. Davis out. I said I was not the door keeper. The person then spoke to Mr. +Hutchins, who opened the door, and Mr. Davis passed out. I suppose now it was +Mr. Wright who asked me to open the door for Mr. Davis. I think Mr. Davis, +Mr. Wright, and a third person, a stranger, went out about together; and my +attention was called off for a moment, by noticing the colored man get up, put his +coat on, and walk about. Then came the yell, and the forcing of the door. +Doubting whether as a constable, I had any right to interfere, I concluded not to +do anything until some emergency occurred. I saw Mr. Hutchins driven away +from the door. It is my opinion that Mr. Byrnes was behind the door. If so, he +could not see outside the doorway. At the time of the first rush, there was one +or two near Mr. Hutchins, and Mr. Byrnes might have been one of them. I +should think the prisoner got up and put on his coat just about the time Mr. +Wright and Mr. Davis passed out. When the yell came the prisoner ran towards +the door on the East side, and then back on the other side of the rail to the front +door. I was somewhat excited, but I helped in holding on to the door. John H. +Riley was on the other side, and Patrick Riley was walking back and forth. I +felt rather vexed that they did not come to the door attacked, to assist in closing +it, and I withdrew from the door. John Riley was calling for assistance. There +had been pounding at the doors before the prisoner put his coat on, and shew signs +of excitement; and there had been a good deal of loud talking outside. I was in +the court room about an hour. I should not think Mr. Davis went out after I came +in, until he went out at the time I have spoken of.</p> + +<p><i>George W. Minns, Esq.</i>, 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 purpose<span class='pagenum'><a name="Page_19" id="Page_19">[Pg 19]</a></span> +of irritating or insulting Mr. Davis. My attention was chiefly occupied in looking +at the prisoner.</p> + +<p><i>Frederick Warren</i>, 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.</p> + +<p>[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].</p> + +<p><i>Elizur Wright,</i> 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.</p> + +<p>At this stage, the court adjourned till Monday.</p> + +<hr style='width: 45%;' /> + +<p><i>Monday, February</i> 24.—Mr. Commissioner Hallett resumed the examination at +10 o'clock.</p> + +<p><i>Elizur Wright</i> recalled. 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.</p> + +<p><i>Cross Examined.</i> Mr. Sewall stated to me the <i>quo modo</i> of 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.</p> + +<p><i>Mr. Lunt</i>—Are you one of the editors of the Commonwealth? [Witness did +not answer, but smiled].</p> + +<p><i>Mr. Dana</i>—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.</p> + +<p><i>The Commissioner</i> remarked that the inquiry was irrelevant, unless the district +attorney expected to show from it a bias on the part of the witness.</p> + +<p><i>Mr. Wright</i> now, 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.</p> + +<p><i>Richard H. Dana, Jr.</i> was called to the stand by Mr. Davis.</p> + +<p>[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.<span class='pagenum'><a name="Page_20" id="Page_20">[Pg 20]</a></span></p> + +<p><i>The Commissioner.</i> There is no impropriety in it in a preliminary inquiry; and +in your case, never.]</p> + +<p>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 writ <i>de homine +replegiando</i>, 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 writ <i>de homine replegiando</i>. 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.</p> + +<p><i>To Mr. Lunt.</i> 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.</p> + +<p><i>Mr. Lunt.</i> Can you say that none of those who acted as counsel here, spoke +of it?</p> + +<p><i>Mr. Dana.</i> 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.</p> + +<p><i>Mr. Lunt.</i> Did you attend the meetings at Faneuil Hall in October, relating +to the Fugitive Slave Bill?</p> + +<p><i>Mr. Dana.</i> 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.</p> + +<p><i>Mr. Lunt.</i> Did you speak at that meeting?</p> + +<p><i>Mr. Dana.</i> 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.</p> + +<p><i>Mr. Lunt.</i> I think it would be a satisfaction to the community to know from +yourself how the matter stands as to these meetings.</p> + +<p><i>Mr. Dana.</i> 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.</p> + +<p><i>The Commissioner.</i> I read them. They were unexceptionable.</p> + +<p><i>Mr. Dana.</i> 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.<span class='pagenum'><a name="Page_21" id="Page_21">[Pg 21]</a></span></p> + +<p><i>Charles H. Brainard.</i> I have heard Mr. Byrnes' reputation for truth and veracity +spoken of, but not until these trials had commenced.</p> + +<p><i>Charles C. Conley.</i> Had heard Mr. Byrnes' truth, &c., spoken against for some +time back.</p> + +<p><i>Charles Mead</i> examined on same point, but did not testify definitely.</p> + +<p><i>Mr. Dana to Mr. Lunt.</i> 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.</p> + +<p><i>To Mr. Davis.</i> 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.</p> + +<p>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.</p> + +<p>Mr. Lunt objected.</p> + +<p>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.</p> + +<p><i>The Commissioner.</i> 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.</p> + +<p>Mr. Dana then read a small portion of Mr. Davis's testimony, and said he should +rest his defence for the present.</p> + +<p><i>J. S. Prescott</i>, 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.</p> + +<p><i>Cross-ex.</i> 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.</p> + +<p>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.</p> + +<p><i>To the Commissioner.</i> 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.</p> + +<p><i>Mr. Sawin</i>, 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.</p> + +<p><i>The Commissioner.</i> Why didn't you report the remark of Mr. Davis to the +Commissioner?<span class='pagenum'><a name="Page_22" id="Page_22">[Pg 22]</a></span></p> + +<p><i>Mr. Sawin.</i> 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.</p> + +<p><i>Cross-ex.</i> It was a private remark.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>John L. Roberts, a mason, had known Byrnes by name for a year, but had +never heard him spoken of.</p> + +<p>Richard Hosea, constable, testified that his character was good as far as he knew.</p> + +<p>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.</p> + +<p>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.</p> + +<p>Robert T. Alden, sail-maker, had known him 10 years, never heard his character +for truth doubted.</p> + +<p>Cross examined. Had met him at balls and assemblies, had known him as a +constable, plumber, and keeper of Cape Cottage.</p> + +<p>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.</p> + +<p>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.</p> + +<p><i>Simon P. Hanscom</i> was 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.</p> + +<p><i>Cross examination.</i> Mr. Prescott said it was well done, and he appeared very<span class='pagenum'><a name="Page_23" id="Page_23">[Pg 23]</a></span> +much 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.</p> + +<p><i>Mr. Lunt.</i> Is Mr. Davis often at the office of the Commonwealth?</p> + +<p><i>Mr. Hanscom.</i> I have seen him there once or twice before the rescue, and +once since.</p> + +<p>The evidence was here announced to be closed on both sides, and the court was +adjourned to Tuesday, 10 o'clock.</p> + +<hr style='width: 45%;' /> + +<p style="text-align: center"><span class="smcap">Mr. Dana then Addressed the Court, as follows</span>:</p> + +<p><i>May it please your Honor:</i></p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 from<span class='pagenum'><a name="Page_24" id="Page_24">[Pg 24]</a></span> +which 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.<span class='pagenum'><a name="Page_25" id="Page_25">[Pg 25]</a></span> +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.</p> + +<p>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!</p> + +<p>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.</p> + +<p>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.</p> + +<p>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!</p> + +<p>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 no<span class='pagenum'><a name="Page_26" id="Page_26">[Pg 26]</a></span>body +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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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—</p> + +<p><i>Mr. Lunt.</i> That is very strong. I have offered you everything of +that kind that I have to say.</p> + +<p><i>The Commissioner.</i> The gentleman proposes to read as part of his +argument, an article from the newspapers.</p> + +<p><i>Mr. Dana.</i> He proposes to read it as evidence, to affect the mind of<span class='pagenum'><a name="Page_27" id="Page_27">[Pg 27]</a></span> +the 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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,<span class='pagenum'><a name="Page_28" id="Page_28">[Pg 28]</a></span> +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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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, willing<span class='pagenum'><a name="Page_29" id="Page_29">[Pg 29]</a></span> +to 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>In the first place, it should be borne in mind that a fugitive slave is not +a criminal.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.<span class='pagenum'><a name="Page_30" id="Page_30">[Pg 30]</a></span> +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.</p> + +<p>The Constitution says that any person <i>charged</i> with 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 person <i>charged</i> +with being a Fugitive Slave shall be surrendered, but any person who <i>is</i> +a Fugitive Slave. In the one case, the <i>charge</i> is 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 who <i>claims</i> +a Fugitive Slave, shall have the right to arrest him, but any person who +<i>is the owner</i> of a Fugitive Slave, may arrest him. So in the 7th Section, +the penalty is not inflicted for rescuing a person who is <i>claimed</i> as a Fugitive +Slave, but for rescuing a person who <i>is</i> a 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.</p> + +<p>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 fugitive <i>with or without process.</i> 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.</p> + +<p>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.</p> + +<p>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 was<span class='pagenum'><a name="Page_31" id="Page_31">[Pg 31]</a></span> +warned for private reasons. It was an official warning, by the agent of +the Executive to one of its servants.</p> + +<p><i>Mr. Lunt</i>—I deny that it was a private warning. It was public, and for +proper reasons.</p> + +<p><i>Mr. Dana</i>—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!</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>To avoid repetition and confusion, I will call your Honor's attention to +single points.</p> + +<p>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.</p> + +<p>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.</p> + +<p>2. To connect Mr. Davis with the rescue, the Government has found<span class='pagenum'><a name="Page_32" id="Page_32">[Pg 32]</a></span> +it 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.</p> + +<p>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.</p> + +<p>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 an<span class='pagenum'><a name="Page_33" id="Page_33">[Pg 33]</a></span> +hour 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p><i>The Commissioner.</i> Did you know him to be engaged in his legal +duties?</p> + +<p><i>Mr. Lunt.</i> A very improper remark!</p> + +<p><i>Mr. Dana.</i> I venture to suggest not. The remark was with reference +to the future, and not to the present.</p> + +<p><i>The Commissioner.</i> I see no distinction between attempting to deter +men from executing the law and assisting in violating it.</p> + +<p><i>Mr. Dana.</i> 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.</p> + +<p><i>The Commissioner.</i> It was equivalent to saying to the officer that the +execution of the law was a mean business.</p> + +<p><i>Mr. Dana.</i> That I propose to argue.</p> + +<p><i>The Commissioner.</i> On that point, the defendant himself intimated in +his cross-examination, that the expression was not used as an observation<span class='pagenum'><a name="Page_34" id="Page_34">[Pg 34]</a></span> +in general. On being asked whether the remark was not said with regard +to his business, he replied, yes.</p> + +<p><i>Mr. Dana.</i> 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.</p> + +<p><i>Mr. Lunt</i> here 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.</p> + +<p><i>Mr. Dana</i> simply bowed to the Attorney, and proceeded.</p> + +<p>No citizen is bound to an active execution of this law, unless called +upon as one of the <i>posse comitatus</i>. 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?</p> + +<p>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.</p> + +<p>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.</p> + +<p>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?</p> + +<p>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.</p> + +<p>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.<span class='pagenum'><a name="Page_35" id="Page_35">[Pg 35]</a></span> +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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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?</p> + +<p>Please your Honor, I have done with the testimony. On what principles +of proof is the judgment to be made up?</p> + +<p>The Constitution requires that no person shall be arrested without a<span class='pagenum'><a name="Page_36" id="Page_36">[Pg 36]</a></span> +warrant 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.</p> + +<p><i>Mr. Lunt</i> here intervened and said it was the custom for the District +Attorney to swear to complaints on hearsay evidence.</p> + +<p><i>Mr. Dana</i>—But this is not stated as hearsay. It is sworn to as a fact. +Charles G. Davis "<i>did</i> rescue," and the above named George Lunt made +oath to the <i>truth of the facts</i>. 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.</p> + +<p>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!</p> + +<p>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.</p> + +<p><i>Mr. Lunt</i>—This is false.</p> + +<p><i>Mr. Dana</i>—Do you deny you did so? It was seen and noticed by us +all. I spoke to you at the time.</p> + +<p><i>Mr. Lunt</i>—I only smiled. I cannot always control my muscles.</p> + +<p><i>Mr. Dana</i>—I am sorry you could not control them on this occasion.<span class='pagenum'><a name="Page_37" id="Page_37">[Pg 37]</a></span> +It led off and encouraged others, who take their cue from persons in high +stations.</p> + +<p>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. <i>Proximus ardet Ucalegon!</i> There are revolutions in the wheel +of fortune. There are tides in the affairs of men.</p> + +<p>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.</p> + +<hr style='width: 45%;' /> + +<p style="text-align: center"><span class="smcap">ARGUMENT OF GEORGE LUNT, ESQ., DISTRICT ATTORNEY</span>.</p> + +<p>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. <i>Proximus ardet Ucalegon!</i> The +relation of counsel in which he appears here may be changed. The +sentiments he has uttered here place <i>him</i> in peril. He will find it <i>so</i>, <i>to +his cost</i>, unless he changes the tone of his remarks, on this and future +occasions.</p> + +<p>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.</p> + +<p><i>Mr. Dana</i>—There is no evidence of that,—the evidence is, that after<span class='pagenum'><a name="Page_38" id="Page_38">[Pg 38]</a></span> +the adjournment he asked an explanation from Mr. Riley of the interview +in the morning.</p> + +<p><i>The Commissioner</i> referring to his notes—says, he believes Mr. Dana +is right.</p> + +<p><i>Mr. Lunt.</i> Now with whom is he associated? I hold in my hand +an account of a meeting held in Faneuil Hall, on the 14th of October +last.</p> + +<p><i>Mr Dana.</i>—For what purpose this narrative to be read here? It is +an account from a hostile paper, of a political meeting, not made under +oath; and it does not appear who wrote it, nor whether the person who +wrote it was present at the meeting.</p> + +<p><i>The Commissioner.</i>—I shall not object to the gentleman's reading +whatever he thinks proper. You have introduced in your argument a +great many irrelevant matters, Mr. Dana, and Mr. Lunt may do the +same.</p> + +<p><i>Mr. Lunt.</i>—This is the account,—Reads from the Boston Post of +October 15, 1850.</p> + + +<p style="text-align: center"><br />THE FUGITIVE SLAVE LAW MEETING.</p> + +<p>"The call for a meeting of the opponents of the fugitive slave law, at +Faneuil Hall, last night, collected a large audience, comprising a considerable +number of colored people. There were about three hundred colored +females in the galleries. The meeting was called to order by Francis +Jackson, and organized as follows:—Charles Francis Adams, President; +Samuel E. Sewall, Gershom B. Weston, Francis Jackson, and Timothy +Gilbert, Vice Presidents; J. W. Stone, and J. W. Thornton, Secretaries.</p> + +<p>"Upon taking the chair, Mr. Adams delivered a carefully prepared +address, in which he maintained that the law was repugnant to the spirit +of our institutions and the constitution, and fraught with as much danger +to free colored people as to fugitives.</p> + +<p>"He was followed by Frederick Douglass, who described the consternation +the law had created among the colored people, free and fugitive, and +said that he knew of hundreds of both classes who were fleeing to +Canada. The free colored people were in fear of seizure by conspiring +complainants, aided by perjured affidavits.</p> + +<p>"Richard H. Dana, Jr., after expressing regret that the meeting was not +made up of somewhat different material, of the leading men in all +branches of business, and of men of property and reputed respectability, +read a long letter from Josiah Quincy, senior, declaring against the law, +but at the same time expressing his belief that there was no real ground +for alarm, for, in his opinion, the enforcement of the law in Massachusetts +would prove to be impracticable.</p> + +<p>"At the request of the President, Mr. Dana also read a series of resolutions, +author unknown, declaring that the moral sense of the individuals +composing the meeting, revolted against the law; denouncing it as contradictory +to the declaration of independence, and inconsistent with the +purposes of the constitution, and in direct violation of its habeas corpus +provision, and the right of the people to be secure from unreasonable +seizure, &c.; that the meeting could not believe that any citizen of +Boston and its vicinity could be so destitute of love of his country and of +his race, or devoid of a sense of justice, as to take part in returning a +fugitive; and that all present pledge themselves to endeavor to aid and +cooperate with all colored people endangered by the law.</p> + +<p>"Speeches were made by Wendell Phillips, James W. Briggs, of Ohio, +Charles Remond, and the Rev. Mr. Colver. The resolutions were<span class='pagenum'><a name="Page_39" id="Page_39">[Pg 39]</a></span> +adopted, as a matter of course. The last one provided "for a committee +of vigilance to secure the fugitives and colored inhabitants of Boston and +vicinity from any invasion of their rights by persons acting under the +law," and the committee was styled and made up as follows:—"</p> + +<p>The last resolution provides for a committee, of which Charles G. +Davis was one. Now I admit that Mr. Davis was in Syracuse, at the +time. But he admits that he volunteered upon his return. Why didn't +he publicly disclaim any assent to these proceedings? And if he did not, +is he not to be presumed to have assented? I want the public to know +whether Mr. Davis and those associated with him, abide by the doctrines +avowed in Faneuil Hall.</p> + +<p>The Statute provides that whoever has been engaged in aiding, abetting, +or assisting, <i>directly or indirectly</i>, is criminal. I shall contend that the +defendant is directly implicated. He is more or less implicated, in the +opinions which have been promulgated, and from his conversations with +Mr. Riley. What next? He comes and asks whether a certain man is +a Southern man. Why? Is not a Southern man to go into a United +States Court? Has it come to this?</p> + +<p>Mr. Davis then says to Sawin, "this is a d—d nasty piece of business," +in the presence of the prisoner. He knew that such an expression +was calculated to have two effects; first, to discourage the officer,—and +secondly, to encourage and excite the prisoner. This was an indirect +aiding,—connecting it with the subsequent escape. He uses language of +a very unusual and violent character afterwards.</p> + +<p>For some unaccountable reason Mr. Davis remains here; for it is unaccounted +for. Was he counsel?</p> + +<p>I maintain he was not counsel. Mr. Riley did not know he was counsel +when he asked Shadrach in Wright's presence if Davis was counsel. +Riley didn't know it then. Shadrach appeared to be in doubt about it.</p> + +<p>(It was suggested that there was no such evidence.)</p> + +<p>What was he waiting for? What single thing did he do as counsel?</p> + +<p>Mr. Lunt here reviewed the evidence of the transactions in the court +room more minutely. Davis pushed the door and stuck his back against +the post. One expression, "Take him out, boys," is the natural expression +of a stranger. The other words testified to by others were, "take +him out." He goes down, and does not interfere, according to his own +statement. He shows no disposition to prevent a rescue.</p> + +<p>The Commissioner inquires whether not interfering may not be indirectly +aiding and abetting.</p> + +<p><i>Mr. Lunt.</i> I am not ready to take that ground at present.</p> + +<p><i>The Commissioner.</i> He is undoubtedly liable, as a magistrate, and subject +to a fine of $300.</p> + +<p>Mr. Lunt reviews the evidence of what took place in the entry, argues +that Mr. Homer could not have seen the whole disturbance, says that as +a professional man, he can't say it is proved beyond a reasonable doubt, +that Mr. Davis uttered the words "take him out, boys," and does not +think they would satisfy a jury, taken by themselves. But there was +reasonable cause for binding him over. Mr. Prescott shakes my confidence +in my preconceived opinions upon the subject, as to whether +Davis went out or not. I did not think before that Davis went out. Mr. +Prescott cannot be mistaken. Mr. Prescott's testimony is not met by the +negative testimony of Mr. Riley, for it was impossible that Mr. Riley +could have constantly watched the left hand or easterly door, while talking +with others or disputing with Mr. Wright. If he did go out then, he +had an opportunity to concert a signal with the colored men without.<span class='pagenum'><a name="Page_40" id="Page_40">[Pg 40]</a></span></p> + +<p>Mr. Lunt argued to show the intenseness of Mr. Davis's interest and +zeal in opposition to the law, that it was avowed by him under oath upon +the stand; that showed his predisposition and excited state of mind upon +the subject, and the greater liability of his being betrayed into an act of +overt resistance to the law, if an opportunity occurred. This excited +state of mind continued in the court room, as was proved by his addressing +the officers in the abusive and sanguinary terms used by him. +Up to the moment of leaving the court room, and when expostulated +with by the officer, for saying he and others ought to have their throats +cut, he admitted that he had said so, and that he said so again. Clark +and Hutchins heard the cry—"Take him out boys;" and Byrnes, whose +eye was fixed on Mr. Davis, was certain that they came from him.</p> + +<p>The words were uttered. He was in that peculiar state of mind, +which rendered such words the natural expression of his feelings, and +they were in perfect accordance with the general purpose of resistance +to the law publicly promulgated by his associates and co-laborers, who +had been formed into an organized body in this city. He did not content +himself with going out when Hutchins opened the door for him. +He braced his back against the door-post, and pushed against the door +to open it wider. Then came the cry—"Take him out, boys!" And +Byrnes had sworn it came from Mr. Davis. Connected with Mr. Davis's +leaving the room was another significant fact. Almost at the moment +that he, quitting that part of the room where the fugitive was, started +to go out, the fugitive rose, put on his coat, and appearing to be excited, +walked forward, just as the first cry was raised.</p> + +<p>Mr. Davis lingers on the stair-case, and goes to his office, not knowing +or caring, he would have us suppose, what had been the issue. +Upon this evidence, it seems to me a clear case for holding the party +over for further examination and trial.</p> + +<hr style='width: 45%;' /> + +<p><i>Wednesday, Feb. 26.</i> Upon the opening of the Court the Commissioner +delivered his decision.</p> + +<p>He commenced by stating the offence under the statute with which the +defendant is charged, and stated that he should confine himself principally +to the question whether the defendant was aiding or abetting the person +who had been arrested, and that the legal decisions upon the construction +of the statute were merely for the purposes of this examination. The +Commissioner then reviewed the evidence as to the expressions of the +defendant in the court room, and stated that it had been proved that the +defendant said the officers of the Court ought to have their throats cut. +No notice was taken in the opinion of the evidence of Geo. W. Minns, +Esq. The following extracts are made from the opinion of the Commissioner.</p> + +<p>"The defendant has also volunteered the statement in this court, when +called as a witness in the preceding examination, that he was glad the +prisoner was free, and when further questioned, he left it unexplained +whether that opinion also embraced the unlawful means that had been +used."</p> + +<p>"These facts have a legal bearing upon the <i>animus</i>, the wilful intent +with which any act may have been done, by the defendant to aid in the +rescue; and I should fail in the duty of a magistrate at this time, and under +all the circumstances surrounding this examination, to permit to pass +unrebuked any manifestation of a resistance to or contempt of legal pro<span class='pagenum'><a name="Page_41" id="Page_41">[Pg 41]</a></span>cess, +especially when coming from intelligent citizens and men in official +positions, whose countenance or encouragement may have involved, and +may again involve, the excitable and less informed in an open violation +of law. At the same time there is a plain distinction as to the penal consequences, +between a moral and a legal aiding or abetting; and holding +throughout these examinations, as I trust I may be enabled to do, an impartial +as well as a firm hand, care shall be taken not to confound an indiscretion +or a moral perversion, or any mere expression of opinion, however +gross, with a wilful act constituting legal guilt. I fully recognise +the doctrine suggested in the defence, of the largest liberty within law, +and also the right of the people to make or amend constitutions and laws, +by all constitutional means or reserved powers."</p> + +<hr style="width: 45%;" /> + +<p>"But so far as the defendant is here proved to have done any act, there +is no evidence which connects him criminally with a preconcerted plan +of rescue; and I take pleasure in adding that the conduct of the defence +by the learned counsel, and his testimony and disavowals, have greatly +aided me in coming to that conclusion." * * *</p> + +<p>"Of this preliminary point of the evidence I do not find an aiding or +abetting within the provisions of the statute. But, in connection with +what immediately followed in the passing of the defendant out at the door, +the exclamation supposed by one witness to have come from him, his position +and his hand upon the door, immediately followed by the rush of the +rioters who surrounded it, and the absence of all evidence of attempt on +the part of the defendant to prevent the rescue, it presented, on the part +of the evidence for the prosecution, a strong case of probable cause, that +made it the duty of the district attorney to bring the party to an examination. +But in the view I take of a preliminary inquiry in this form, and +especially where not only the evidence that would come before a grand +jury, but the defence is gone into, testimony stronger than probable cause +should appear, in order to hold the party to a trial." * * *</p> + +<p>"Then is that proof found in the acts of the defendant as he passed out +of the door, in themselves or in their connection with his preceding declarations +and conduct?"</p> + +<p>The Commissioner then reviewed the evidence of Mr. Byrnes, and +come to the conclusion that taking it as it stands it does not satisfactorily +prove that the defendant uttered the words ascribed to him. * * *</p> + +<p>"The only other evidence refers to the manner the defendant went out +of the door. Hutchins, who passed him out, says that the defendant turned +his back to the wall, the outer corner of the casement, instead of +going directly forward, and put his head on the outer door, and then it +started and was forced open. This act, as it was exhibited to the Commissioner, +by the witness, is not inconsistent with the explanation that it +was the result of the rush and pressure without, and the force there applied +to the door; and if the attack was unexpected by the defendant, his +neglect to interpose resistance to the forcing of the door, or to aid the officers, +which it was his duty to have done, and which, it has been urged +by the district attorney for the prosecution, with much force in the argument, +may have been caused from sudden surprise or agitation. And +even if, as the previous and subsequent conduct of the defendant might +lead to infer, was a wilful omission of duty, especially in a magistrate, +yet, if unaccompanied by any act or expression, aiding in, or inciting +to the rescue, and in the absence of a call from a proper officer +for assistance, it is not the distinct offence charged in the complaint,<span class='pagenum'><a name="Page_42" id="Page_42">[Pg 42]</a></span> +or defined in the statute; and the party, if answerable, is so in another +form and tribunal. It is further to be considered, as suggested by the +counsel for the defence, that the decision in this hearing is not final, +or in any legal form conclusive, and as the defendant has a permanent +locality, leaves the inquiry open elsewhere, should this evidence +or further proof require it. Upon the whole evidence, therefore, and +applying the rule which should govern preliminary examinations, of not +binding over a party accused, without testimony beyond that which might +constitute legal probable cause for his arrest and examination, I shall order +that the defendant be discharged."</p> + +<p>The commissioner now addressed the defendant personally, and said—"Charles +G. Davis, the court order you to be discharged, and go without +day."<span class='pagenum'><a name="Page_43" id="Page_43">[Pg 43]</a></span></p> + + + +<hr style="width: 65%;" /> +<h2><a name="Act_of_Congress_of_1850" id="Act_of_Congress_of_1850"></a>Act of Congress of 1850.</h2> + +<p><span class="smcap">An Act to amend, and supplementary to the Act, entitled "An +Act respecting Fugitives from Justice, and persons escaping from +the service of their Masters," approved February 12, 1793.</span></p> + +<p><i>Be it enacted by the Senate and House of Representatives of the United States of America +in Congress assembled</i>, That the persons who have been, or may hereafter be, appointed commissioners, +in virtue of any act of Congress, by the circuit courts of the United States and who, in +consequence of such appointment, are authorized to exercise the powers that any justice of the +peace or other magistrate of any of the United States may exercise in respect to offenders for any +crime or offence against the United States by arresting, imprisoning, or bailing the same under +and by virtue of the thirty-third section of the act of the twenty-fourth of September, seventeen +hundred and eighty-nine, entitled, "An act to establish the judicial courts of the United States," +shall be, and are hereby authorized and required to exercise and discharge all the powers and duties +conferred by this act.</p> + +<p><span class="smcap">Sec. 2.</span> <i>And be it further enacted</i>, That the superior court of each organized territory of the +United States shall have the same power to appoint commissioners to take acknowledgments of +bail and affidavit, and to take depositions of witnesses in civil causes, which is now possessed by +the circuit courts of the United States; and all commissioners who shall hereafter be appointed for +such purposes by the superior court of any organized territory of the United States shall possess +all the powers and exercise all the duties conferred by law upon the commissioners appointed by +the circuit courts of the United States for similar purposes, and shall moreover exercise and discharge +all the powers and duties conferred by this act.</p> + +<p><span class="smcap">Sec. 3.</span> <i>And be it further enacted</i>, That the circuit courts of the United States, and the superior +courts of each organized territory of the United States, shall from time to time enlarge the +number of commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, +and to the prompt discharge of the duties imposed by this act.</p> + +<p><span class="smcap">Sec. 4.</span> <i>And be it further enacted</i>, That the commissioners above named shall have concurrent +jurisdiction with the judges of the circuit and district courts of the United States, in their respective +circuits and districts within the several States, and the judges of the superior courts of the +Territories, severally and collectively, in term time and vacation; and shall grant certificates to +such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives +from service or labor, under the restrictions herein contained, to the State or Territory from +which such persons may have escaped or fled.</p> + +<p><span class="smcap">Sec. 5.</span> <i>And be it further enacted</i>, That it shall be the duty of all marshals and deputy marshals +to obey and execute all warrants and precepts issued under the provisions of this act, when +to them directed; and should any marshal or deputy marshal refuse to receive such warrant or +other process, when tendered, or to use all proper means diligently to execute the same, he shall, +on conviction thereof, be fined in the sum of one thousand dollars to the use of such claimant, on +the motion of such claimant, by the circuit or district court for the district of such marshal; and +after arrest of such fugitive by such marshal or his deputy, or whilst at any time in his custody, +under the provisions of this act, should such fugitive escape, whether with or without the assent of +such marshal or his deputy, such marshal shall be liable, on his official bond, to be prosecuted for +the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, +Territory, or district whence he escaped; and the better to enable the said commissioners, when +thus appointed, to execute their duties faithfully and efficiently, in conformity with the requirements +of the constitution of the United States and of this act, they are hereby authorized and empowered, +within their counties respectively, to appoint in writing under their hands, any one or +more suitable persons, from time to time, to execute all such warrants and other process as may be +issued by them in the lawful performance of their respective duties; with an authority to such +commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon +and call to their aid the bystanders, or <i>posse comitatus</i> of the proper county, when necessary to +insure a faithful observance of the clause of the constitution referred to, in conformity with the provisions +of this act; and all good citizens are hereby commanded to aid and assist in the prompt and +efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose; +and said warrants shall run and be executed by said officers anywhere in the State within +which they are issued.</p> + +<p><span class="smcap">Sec. 6.</span> <i>And be it further enacted</i>, That when <i>a person held to service or labor in any State or</i> +Territory of the United States has heretofore or shall hereafter escape into another State or Territory +of the United States, the person or persons to whom such service or labor may be due, or his, +her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged +and certified under the seal of some legal office or court of the State or Territory in which the same +may be executed, <i>may pursue and reclaim such fugitive person</i>, either by procuring a warrant +from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district or +county, for the apprehension of such fugitive from service or labor, or by seizing and arresting +such fugitive where the same can be done without process, and by taking and causing such person +to be taken forthwith before such court, judge or commissioner, whose duty it shall be to hear and +determine the case of such claimant in a summary manner; and upon satisfactory proof being +made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or +commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, +justice of the peace, or other legal officer authorized to administer an oath and take depositions +under the laws of the State or Territory from which <i>such person owing service or labor</i> may +have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal +of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency +of the proof, and with proof also by affidavit, of the identity of the person whose service or +labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor +to the person or persons claiming him or her, in the State or Territory from which such fugitive +may have escaped as aforesaid, and that said person escaped, to make out and deliver to such +claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service +or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory +in which such service or labor was due to the State or Territory in which he or she was +arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable +force and restraint as may be necessary under the circumstances of the case, to take and remove +such fugitive person back to the State or Territory from whence he or she may have escaped as<span class='pagenum'><a name="Page_44" id="Page_44">[Pg 44]</a></span> +aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted +in evidence; and the certificates in this and the first section mentioned shall be conclusive +of the right of the person or persons in whose favor granted to remove such fugitive to the State or +Territory from which he escaped, and shall prevent all molestation of said person or persons by +any process issued by any court, judge, magistrate, or other person whomsoever.</p> + +<p><span class="smcap">Sec. 7.</span> <i>And be it further enacted</i>, That any person who shall knowingly and willingly obstruct, +hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting +him, her, or them, from arresting <i>such fugitive from service or labor</i>, either with or without process +as aforesaid; or shall rescue, or attempt to rescue, <i>such fugitive from service or labor</i>, from +the custody of such claimant, his or her agent or attorney, or other person or persons lawfully +assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or +shall aid, abet, or assist such person, so owing service or labor as aforesaid, directly or indirectly, +to escape from such claimant, his agent or attorney, or other person or persons, legally authorized +as aforesaid; or shall harbor or conceal such <i>fugitive</i>, so as to prevent the discovery and arrest of +such person, after notice or knowledge of the fact that such person was a fugitive from service or +labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand +dollars and imprisonment not exceeding six months, by indictment and conviction before the district +court of the United States for the district in which such offence may have been committed, or +before the proper court of criminal jurisdiction, if committed within any one of the organized Territories +of the United States; and shall moreover forfeit and pay, by way of civil damages to the +party injured by such illegal conduct, the sum of one thousand dollars for <i>each fugitive so lost</i> as +aforesaid, to be recovered by action of debt in any of the district or territorial courts aforesaid, within +whose jurisdiction the said offence may have been committed.</p> + +<p><span class="smcap">Sec. 8.</span> <i>And be it further enacted</i>, That the marshals, their deputies, and the clerks of the said +district and territorial courts, shall be paid for their services the like fees as may be allowed to +them for similar services in other cases; and where such services are rendered exclusively in the +arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where +such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, +then such fees are to be paid in the whole by such claimant, his agent or attorney; and in all +cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in +full for his services in each case, upon the delivery of the said certificate to the claimant, his or her +agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such +commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest +and examination, to be paid in either case by the claimant, his or her agent or attorney. The person +or persons authorized to execute the process to be issued by such commissioners for the arrest +and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five +dollars each for each person he or they may arrest and take before any such commissioner as aforesaid +at the instance and request of such claimant, with such other fees as may be deemed reasonable +by such commissioner for such other additional services as may be necessarily performed by him +or them: such as attending to the examination, keeping the fugitive in custody, and providing +him with food and lodging during his detention, and until the final determination of such commissioner: +and in general for performing such other duties as may be required by such claimant, his or +her attorney or agent, or commissioner in the premises; such fees to be made up in conformity +with the fees usually charged by the officers of the courts of justice within the proper district or +county, as near as may be practicable, and paid by such claimants, their agents or attorneys, +whether such supposed fugitive from service or labor be ordered to be delivered to such claimants +by the final determination of such commissioners or not.</p> + +<p><span class="smcap">Sec. 9.</span> <i>And be it further enacted</i>, That upon affidavit made by the claimant of such fugitive, +his agent or attorney, after such certificate has been issued, that he has reason to apprehend that +such fugitive will be rescued by force from his or their possession before he can be taken beyond +the limits of the State in which the arrest is made, it shall be the duty of the officer making the +arrest to retain such fugitive in his custody, and to remove him to the State whence he fled, and +there to deliver him to said claimant, his agent or attorney. And to this end the officer aforesaid +is hereby authorized and required to employ so many persons as he may deem necessary, to overcome +such force, and to retain them in his service so long as circumstances may require; the said +officer and his assistants, while so employed, to receive the same compensation, and to be allowed +the same expenses as are now allowed by law for the transportation of criminals, to be certified by +the judge of the district within which the arrest is made, and paid out of the treasury of the United +States.</p> + +<p><span class="smcap">Sec. 10.</span> <i>And be it further enacted</i>, That when any person held to service or labor in any State +or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service +or labor shall be due, his, her, or their agent or attorney, may apply to any court of record therein, +or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of +the escape aforesaid, and that the person escaping owed service or labor to such party. Whereupon +the court shall cause a record to be made of the matters so proved, and also a general description of +the person so escaping, with such convenient certainty as may be; and a transcript of such record +authenticated by the attestation of the clerk, and of the seal of the said court, being produced in +any other State, Territory, or District in which the person so escaping may be found, and being +exhibited to any judge, commissioner, or other officer authorized by the law of the United States +to cause persons escaping from service or labor to be delivered up, shall be held and taken to be +full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping +is due to the party in such record mentioned. And upon the production by the said party of +other and further evidence, if necessary, either oral or by affidavit, in addition to what is contained +in the said record, of the identity of the person escaping, he or she shall be delivered up to the +claimant. And the said court, commissioner, judge, or other person authorized by this act to grant +certificates to claimants of fugitives, shall, upon the production of the record and other evidences +aforesaid, grant to such claimant a certificate of his right to take any such person identified and +proved to be owing service or labor as aforesaid, which certificate shall authorize such claimant to +seize or arrest and transport such person to the State or Territory from which he escaped: <i>Provided</i>. +That nothing herein contained shall be construed as requiring the production of a transcript +of such record as evidence as aforesaid; but in its absence, the claim shall be heard and determined +upon other satisfactory proofs competent in law.</p> + +<div class='sign'>HOWELL COBB,</div> +<div class='right'><i>Speaker of the House of Representatives.</i></div> +<div class='sign'>WILLIAM R. KING.</div> +<div class='right'><i>President of the Senate, pro tempore.</i></div> + +<p>Approved September 18th, 1850.</p> + +<div class='sign'>MILLARD FILLMORE.</div> + + + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of Report of the Proceedings at the +Examination of Charles G. Davis, Esq., on the Charge of Aiding and Abetting in the Rescue of a Fugitive Slave, by Various + +*** END OF THIS PROJECT GUTENBERG EBOOK FUGITIVE SLAVE *** + +***** This file should be named 31424-h.htm or 31424-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/1/4/2/31424/ + +Produced by Meredith Bach, Odessa Paige Turner and the +Online Distributed Proofreading Team at http://www.pgdp.net +(This file was produced from images generously made +available by The Internet Archive/American Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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