_May it please your Honor:_
Certainly, Mr. Commissioner, we are assembled here, this morning, under
extraordinary circumstances. I am not aware that since the foundations
of our institutions were laid, since we became an independent people,
since the Commonwealth of Massachusetts had an independent existence,--I
am not aware that a case similar to this has once arisen. I do not know
that ever before in our history, a judicial tribunal has sat, even for a
preliminary hearing, upon a gentleman of education, a counsellor of the
law, sworn doubly, as a Justice of the Peace, and as a Counsellor in all
the Courts, to sustain the Constitution of the United States and the
laws made in pursuance thereof,--a gentleman of property, family,
friends, reputation, who has more at stake in the preservation of these
institutions than nine in ten of those who charge him with this
crime;--who stands charged with an offence (in the construction now
attempted to be put upon the statute) of a treasonable character, a
treasonable misdemeanor, an attempt to rescue a person from the law by
force, an attempt to set up violence against the law of the land.
Therefore it is that this trial attracts this unusual interest. It is
not that, so far as this defendant is concerned, the question whether he
be bound over here, or whether the District Attorney takes his case
directly to the Grand Jury, can make the slightest difference in the
world; but because the decision of this tribunal, though only
preliminary, will have great effect upon the community, and will be
carried throughout the United States. It is because of the political
weight attached to it, that such anxiety is felt for the result. For the
simple rescue of a prisoner out of the hands of an officer, is a thing
that occurs in our streets not very unfrequently, and often in other
cities. It might have occurred up stairs, and not have attracted a
moment's attention.
Who, Mr. Commissioner, is the defendant, at the bar? I have said that he
is a Justice of the Peace, sworn to sustain the laws, a counsellor of
this court and of all the courts of the United States in this State,
sworn doubly to sustain the laws. He is a gentleman of property and
education, whose professional reputation and emolument depend upon
sustaining law against force; a man whose ancestors, of the ancient
Pilgrim stock of Plymouth, are among those who laid the foundations of
the institutions that we enjoy. He has at this moment so much interest
in the way of personal pride, historical recollections, property, in
family, reputation, honor and emolument in these courts--so much at
stake as to render it impossible to believe, except on the strongest
confirmation, that he should be guilty of the offence charged against
him at this moment.
The charge against the defendant involves the meanness of instigating
others to an act he dares not commit of himself, of putting forward
obscure and oppressed men, to dare the dangers and bear the penalties
from 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.
Since, then, my friend has done me the honor to ask me to appear for him
before this tribunal, from among others so much better qualified, I feel
that I am placed in circumstances calling for some allowance, some
liberty for feeling and expression. We think ourselves happy that in
this State trial, this political State trial, we appear before one who
has been known through his whole life as not only the advocate of the
largest liberty, but the asserter and maintainer of the largest liberty
of speech and action, at the bar, in the press, and in the forum,
carrying those ideas to an extent to which, I confess, with my
comparative conservatism, I have not always seen my way clear to follow.
Therefore, I shall look for as large a liberty as the case will allow me
in addressing myself to this court; in bringing forward all
considerations, in suggesting all possible motives, in commenting upon
all the circumstances that lie about this cause. At the same time I
shall expect from the person who sits clothed with the authority of an
Executive whose will is as powerful as that of any sovereign in
Christendom, except the Czar of the Russias--I shall expect from him no
unnecessary interruptions, no extraordinary appeals, no traveling out of
the usual course of a simple judicial proceeding.
Why is it that the defendant stands here at this bar a prisoner? How is
this extraordinary spectacle to be accounted for? I beg leave to submit
that the whole history is simply this. There has been a law passed in
the year 1850, by the Congress of the United States, which subjects
certain persons, if they be fugitive slaves, or whether they be or not,
subjects them to be arrested and brought into Court, to have the
question of their liberty and that of their seed forever, tried by a so
called judicial tribunal. Those persons are mostly poor. They belong to
an oppressed class. They are the poor plebeians, while we are the
patricians of our community. They are of all the people in the world
those who most need the protection of courts of justice. I think the
court will agree with me that if there is a single duty within the range
of the duties of a counsellor of this court which it is honorable for
him to perform, and in the performance of which he ought to have the
encouragement of the court, it is when he comes forward voluntarily to
offer his services for a man arrested as a fugitive slave. Therefore it
is that I think it somewhat unfortunate the District Attorney should
have thought it necessary to arrest counsel. If there be a person
against whom no intimidation should be used, it is the counsel for a
poor, unprotected fugitive from captivity.--The question is, whether a
man and his posterity forever, the fruit of his body, shall be slave or
free. It is to be decided on legal principles. If there is a case in the
world that calls for legal knowledge and ability--that calls for
counsellors to come in and labor without money or price, it is a case
like this. I think it a monstrous thing, unless it be a case beyond
doubt, that counsel should have been selected to be proceeded against in
this manner.
I take the facts to be these:--Mr. Davis, being a counsellor of this
Court, and possessed of no small sympathy for persons in peril of their
freedom, when it was known that a person claimed as a fugitive slave was
arrested, and in a few hours, perhaps, to be sent into eternal
servitude, Mr. Davis steps over to my office and suggests to me that we
offer our services as counsel. He leaves his business, which is large,
while five courts are in session in this building. He sits here that
whole Saturday forenoon by the prisoner, to whom he is recommended by
Mr. Morton. He is twice spoken of to Mr. Riley by the prisoner, as one
of his counsel. He sits from eleven to two o'clock, absorbed in this
case, his feelings necessarily excited, (and I should be ashamed of him
if they were not excited,) but his intellectual powers devoted to the
points of law in this case, and your Honor knows that the points are
various and new. By the courtesy of the Marshal, the counsel were
permitted to remain here, because the Marshal had not yet determined
where to keep his prisoner. They remained until the time for the
prisoner's meal. When the business is over, they leave. Some one must go
out first, and somebody must go out last. It is nothing more nor less
than the old rule of "The Devil take the hindermost." Mr. List leaves
the Court-room--Mr. Warren goes out. All the officers are to go to
dinner, and the door is to be opened and closed each time. Dinner is to
be brought in. Twenty times that door is to be opened.
In the mean time about that door is collected a small number of persons
of the same color with the person then at the bar, very likely, perhaps,
to make a rescue, some advising against it, and some for it, with
considerable excitement. Mr. Davis slides out of that passage-way and
goes to his office. Mr. Wright is prevented from going by the crowd. Not
a blow is struck. Not the hair of a man's head is injured. The prisoner
walks off with his friends, straight out of this Court-House, and no
more than twenty or thirty persons have done the deed. Three men outside
of the door could have prevented the rescue. Mr. Riley did not suspect
it. Mr. Warren did not suspect it. Mr. Homer did not suspect it. Mr.
Wright did not suspect it. Nobody suspected it. The sudden action of a
small body of men, unexpected, and only successful because unexpected,
accomplished it. He is out of the reach of the officers in a moment, and
there's the end of the whole business. No premeditation! No plan!
Counsel knowing nothing about it! Nobody suspecting it, and the whole
thing over in one minute!
But, may it please the Commissioner, the law is violated--the outrage is
done. This is a case of great political importance, and the deputy
Marshal thinks it his duty, (I think in rather an extraordinary manner,)
instantly, before any charge is made against him, before any official
inquiry is started, to issue a long affidavit, sent post haste to every
newspaper, and hurried on to Washington,--Congress in session,--a
delicate question there,--Northern and Southern men arrayed against each
other. Then comes an alarm. Then the Executive shrieks out a
proclamation.
A standing army is to be ordered to Boston. All good citizens are to be
commanded to sustain the laws. The country thinks that mob law is
rioting in Boston--that we all go armed to the teeth. The Chief
Magistrate of fifteen millions of people must launch against us the
thunders from his mighty hand.
In the meantime, we poor, innocent citizens are just as quiet, just as
peaceable, just as confident in our own laws, just as capable of taking
care of ourselves on Saturday evening as on Friday morning. Only some
frightened innocents, like the goose, the duck and the turkey in the
fable, say the sky is falling, and they must go and tell the king!
But we can all see now that there was too much alarm. We begin already
to feel the reaction. A state of things has been created over this
country entirely unwarranted by the circumstances. And I trust that the
Commissioner will be able to say to the country, say to His Excellency
the President of the United States, say to the world, that nothing of
this sort has occurred; that there has been no preconcerted action; that
the Marshal cleared his room, and every body went out peaceably; that
nobody expected the rescue; that there was no crowd in the court-room;
but the blacks, feeling themselves oppressed and periled by this law,
standing at that door, behind which their friend and companion is held a
prisoner, rush in, almost without resistance, carry off their prisoner,
and not a blow is struck, not a weapon drawn, not a man injured. That is
the end of it. There is no need of standing armies in Boston! And, above
all, we trust that the Commissioner will be able to say to the world, to
the President, and to Congress, that this effort was the unpremeditated,
irresistible impulse of a small body of men, acting under the sense and
sight of oppression and impending horrid calamities, against the advice
of some of their own number; and that no gentleman of education, no
counsellor of this court sworn to obey the law, has instigated these
poor men to its overthrow. Massachusetts is not in a state of civil war,
and her most valued citizens are not engaged in overturning the
foundations of civil government.
Why should the criminal proceedings of this day have taken place at all?
What is the evidence? The learned District Attorney thought proper to
suggest to the Court that there was further evidence which might be
presented in another stage of this proceeding. That, I am sure, fell
with as little weight upon the mind of the Commissioner as it would if
we, on the other hand, had said, as is the fact, that we have a large
amount of evidence that might yet be presented in behalf of Mr. Davis.
This is not a game of brag! It is not upon evidence that is not here,
but upon evidence that is here, that this case is to be decided. Here
has been mortified pride, here has been fear, here has been the dread
spectre of Executive power, stalking across the scene, appalling the
hearts, and disabling the judgments of men. Excited men suspect
everybody. Every person who ever attended a public meeting is suspected.
A political party is to be put under the ban. There is nothing so rash
as fear. There is nothing so indiscriminating as fear. There is nothing
so cruel as fear, unless it be mortified pride--and here they both
concurred.
Instructions come from a distant Executive power that knows nothing of
the facts. And the fear of that power and patronage is the reason, may
it please the Commissioner, why suddenly, on Saturday or Sunday, before
the subject can be examined and the truth ascertained, a warrant is got
out against a person of the character and position of Mr. Davis. But
when we look at things in their natural light, when there is a calm
investigation of the facts, I think the Government will see and regret
its rashness and delusion.
I understand, may it please the Commissioner, that there is to be a
great deal done on this case of an unusual character. We have been
threatened with the reading of newspapers; and public meetings, and
political principles are to be charged as treasonable. Yes! political
considerations are brought to bear. We cannot tell what limit is to be
put to this. Therefore, not knowing what is before me, having no
ordinary rules of procedure to guide me, the Commissioner will allow me
to try to anticipate the attacks as well as I can. For having had it
intimated that the argument will not follow legal evidence, but extracts
from newspapers--
_Mr. Lunt._ That is very strong. I have offered you everything of that
kind that I have to say.
_The Commissioner._ The gentleman proposes to read as part of his
argument, an article from the newspapers.
_Mr. Dana._ He proposes to read it as evidence, to affect the mind of
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.
I say, not knowing what is to come upon me, I must take a pretty wide
margin. In that view of the case, it will not be improper if I state
what I understand to be the true position of Mr. Davis, with reference
to the principles involved in this case.
May it please your Honor, we are not subjects of a monarchy, which has
put laws upon us that we have no hand in making. I do not hesitate to
say, here, that if the act of 1850 had been imposed upon us, a subject
people, by a monarchy, we should have rebelled as one man. I do not
hesitate to say that if this law had been imposed upon us as a province,
by a mother country, without our participation in the act, we should
have rebelled as one man.
But we are a republic. We make our own laws. We choose our own
lawgivers. We obey the laws we make, and we make the laws we obey. This
law was constitutionally passed, though not constitutional, we think, in
its provisions. It is the law until repealed or judicially abrogated.
Who passed this law? It was passed by the vote of the representative of
our own city, whom we sent there by our own votes. It was advocated by
our own Senator. It was passed by the aid of northern votes. Where is
the remedy? It strikes me that the statement of the case shows where the
remedy is. It is in the hands of the people. It is not in standing
behind and urging on poor men to put themselves in the cannon's mouth.
It is political courage that is wanted. Courage shown in speech, through
the pen, and through the ballot-box.
But be it known that all I have said is on the idea that this is a
repealable law. If we are to be told that this is a part of the organic
law, sunk down deep into national compact, and never to be
repealed,--then neither you nor I can answer for the consequences. But
now we can say that it is nothing but an act, that may be repealed
tomorrow. Take from us that great argument, and what can the defendant
and myself do? What can the defendant say to discourage colored men from
the use of force? You take from him his great means of influence. I
never have been one of those, and I think the defendant has never been
one of those, who would throw out all their strength in denunciations
against Southern men born to their institution of slavery, and pass over
those Northern men who volunteer to bring this state of things upon us.
But as a citizen, within constitutional limits, addressing his
fellow-citizens at Faneuil Hall, (where I think we have still a right to
go,) discouraging his fellow-citizens from violence, writing in the
newspapers and arguing in the courts of law to the same purpose, saying
to the poor trembling negro, I will give you a habeas corpus! I will
give you a writ of personal replevin! I will aid in your defence! There
is no need of violence! That is the position of the defendant. If he
held any other position, if the defendant had made up his mind that here
was a case for revolution, that here was a case for civil war and
bloodshed--if I know anything of the spirit of the defendant, he would
have exhibited himself in a far different manner. He would have resigned
his position as a counsellor of this court, with all its profits and
honors; he would put himself at the head instead of urging on from
behind a class of ignorant, excited men, against the execution of the
laws.
For he knows perfectly well--an educated man as he is, who has studied
his logic and metaphysics, and who is not unfamiliar with the principles
of the social system--that an intentional, forcible resistance to law
is, in its nature, revolution. And I take it, no citizen has the right
forcibly to violate the law, unless he is prepared for revolution. I
know that these nice metaphysic rays, as Burke says, piercing into the
dense medium of common life, are refracted and distorted from their
course. But an educated man, with a disciplined mind, knows that he has
no right to encourage others to forcible resistance, unless he is ready
to take the risks of bringing upon the community all the consequences of
civil war. We talk about a higher law on the subject of resistance to
the law. And there is a higher law. But what is it? It is the right to
passive submission to penalties, or, it is the active ultimate right of
revolution. It is the right our fathers took to themselves, as an
ultimate remedy for unsupportable evils. It means, war and bloodshed. It
is a case altogether out of law. I do not know a man educated to the law
that takes any other ground.
I suppose your Honor did not misapprehend my last remark and that no one
did. When I said resistance to the law, I did not mean to include
resistance for the purpose of raising a constitutional issue. If an
unconstitutional tax is levied, you refuse to pay it and raise the
constitutional question. This right seems to be lost sight of. Persons
seem to think we are to obey statutes and not the constitution. I
understand that the duty to the constitution is above the duty to the
statutes. And therefore I say, by resistance to the law, I mean
combined, systematic, forcible resistance to the law for the purpose of
overcoming all law, or a particular law in all cases; defying the
government to arms, and not for the purpose of raising a constitutional
issue. For this is within the power, nay, it is sometimes the duty of a
citizen. I do not know a position in which a person does a greater good
to his fellow citizens than when he does, as John Hampden did on the
question of ship money, raise, by refusal to obey, the constitutional
issue. And in doing this, he ought to have the approbation of the Courts
and their ministers, and of every person true to the constitution and
the laws.
At the same time that it is important to maintain all these principles,
which are the principles of the defendant, I also think this is a season
when we must be very careful that certain opposite doctrines are not
carried too far. I think it is a time, this day, when it becomes a
judicial tribunal to see to it, that this extraordinary combination of
Executive power and patronage; this alarm and this anxiety at head
quarters, does not lead to a violation of private rights and personal
liberty. I think there is a pressure brought to bear against the free
expression of popular opinion, against the exercise of private
judgment--a pressure felt even in the courts of law, intimidating
counsel, overawing witnesses, and making the defence of liberty a peril.
There is the pressure of fear of political disfranchisement, of social
ostracism, which weighs upon this community like a night-mare. We feel
it everywhere. We know that we make sacrifices when we act in this
cause. We feel that we suffer under it. And if this course is persevered
in, I believe that if a man stands at that bar charged with being a
fugitive slave, he will find it difficult to obtain counsel in this city
of Boston, except from a small body of men peculiarly situated.
I think that two years ago no man could have stood before this bar, with
perpetual servitude impending over him, but almost the entire bar would
have come forward for his defence. No man would have dared to decline.
But because of this pressure of political and mercantile interests, it
is said that Henry Long found it difficult to obtain counsel in New
York. His friends sent to Boston to obtain an eminent man here, willing
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.
The history of democratic governments shows that they may be as
arbitrary as any absolute monarchy. Athens and Paris have, under
democratic forms, been the standing illustrations of tyranny and
arbitrary rule the world over. Those are free governments, in which
there is a government of just laws, whether wrought out through a mixed
government, as in England, or wrought out as here by the people
themselves, and cast into representative forms. And now we see before us
the anomaly, the mortifying contradiction, that it is in Great Britain,
and not in the republic of the United States, with our venerated
Declaration of Independence, that the great principles of Liberty and
Fraternity are practically carried out. I do not mean to reflect upon
any person or persons south or north of a certain geographical line. Our
ancestors have eaten sour grapes, and their childrens' teeth are set on
edge. We are all under the same condemnation. We are all responsible for
these laws--for slavery, in some form or other. Our constitutional
compact makes us responsible, and we cannot escape from our share of the
evil and the wrong.
But I must leave these generalities, and pass to the particular points
of this case. This is the first case of its kind that has occurred. The
decision in this case by the Commissioner, though not matter of
precedent, yet goes to the profession, the press, and into the private
records of the country. Therefore we may be excused if we pay some
considerable attention to the points of law involved.
In the first place, it should be borne in mind that a fugitive slave is
not a criminal.
A few years ago, it was thought in Massachusetts that the pursuing of
slaves was criminal. I thank God, it is not yet decided that the
escaping from slavery is criminal. It is a mere question of property
under this act. This law has recognized certain property in slaves,
claimed in a certain manner, in the free States. It is a mere question
of property. The Southern man has certain property in his slave. That
property we do not here recognise. But if the property escapes, and he
pursues it, it is to be recognised in this court. Consequently, when a
Southern man comes here and seizes a person as his property, he takes
him at his own risk, a risk which every man takes in seizing any thing
as his property. If he seizes the wrong property, any person who owns
it, may resist him, or resist his officer armed with a warrant. This has
been ruled in various cases.
Your Honor recollects in the 8th Pickering, the case of the Commonwealth
vs. Kennard. There the writ was placed in the hands of the officer, to
go and attach some property of the defendant. He attached certain
property which he thought belonged to the defendant. He showed his
warrant, but the true owners put him, neck and heels, out of the house.
They were indicted, but the Court sustained them in their act.
In a civil action, if the wrong person, the wrong horse, or the wrong
slave, is taken, then the owner of the property may defend it, or the
man seized may defend himself if he chooses. There is a different
statute on the subject of interfering with the process of the courts,
interfering with judicial processes, under which this respondent is not
held to answer. Whenever this respondent is held to answer for
resisting judicial processes, then these other questions may be raised.
He is now only charged with rescuing property from the owner, or the
officer holding for the owner.
The Constitution says that any person _charged_ 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
_charged_ with being a Fugitive Slave shall be surrendered, but any
person who _is_ a Fugitive Slave. In the one case, the _charge_ 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 _claims_ a Fugitive Slave, shall have the right to
arrest him, but any person who _is the owner_ of a Fugitive Slave, may
arrest him. So in the 7th Section, the penalty is not inflicted for
rescuing a person who is _claimed_ as a Fugitive Slave, but for rescuing
a person who _is_ 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.
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 _with or without process._ The offence is equally
committed, and the penalty is the same, whether the rescue is made from
the owner without process, or from the officer having process. This
fact, with the fact that there is a general statute relating to the
offence of obstructing judicial processes, shows that this statute
assumes the facts of property and escape to be true, and applies only to
cases in which they shall prove to be true.
If this is not so, what is the result? If a man claims another, without
process, by putting his hand on his shoulder, though the man may be as
free as you or I, if he resists, or his friends aid him in resisting,
the offence is committed. A man claimed as a Fugitive Slave, has been
rescued or aided in his escape. You cannot refuse to deliver up a
colored boy or girl born in your house, of free parents, to any man who
knocks at your door and claims the child, with or without a warrant,
without incurring the penalties of this act. This monstrous construction
can never be admitted. I beseech the Commissioner to reconsider his
intimated opinion on this point, and to hold the Government to
preliminary proof, in the outset, that the person rescued was a slave by
the law of Virginia, was the slave of the man who claimed him, and was a
fugitive from that state of Slavery.
What evidence has there been of any of these facts? There has been no
evidence offered that the prisoner was a slave by the law of
Virginia!--There has been no evidence offered that he was the slave of
Mr. Debree! There has been no evidence offered that he was a fugitive
from a state of slavery! Mr. Riley's return upon the warrant, stating
that he had arrested "the within named Shadrach," was admitted as
evidence. I solemnly protested against the reception of the return as
evidence in a criminal proceeding between other parties; but it was
received, and for a while held to be conclusive. But, in answer to my
question, Mr. Riley replied that he did not know the man he arrested to
be the man named in the warrant. And how could he know it? This
nullified the return, and the government had no evidence. The District
Attorney saw this, and rising in his seat, in a threatening tone, said
to Mr. Riley, "I warn you, sir, not to give that testimony!" The
testimony was true, and it was admitted by the court. Why was Mr. Riley
warned? He was warned for private reasons. It was an official warning,
by the agent of the Executive to one of its servants.
_Mr. Lunt_--I deny that it was a private warning. It was public, and for
proper reasons.
_Mr. Dana_--It was for private, or secret reasons, not given, not
apparent,--some political or governmental terror, known only to the
parties. There is no escape from this. The bar saw it. The audience saw
it. It is graven with a pen of iron, and laid up in the rock forever!
All evidence of identity having failed, the government is driven to its
last shift. Col. Thomas is called in, and he testifies that the agent of
Mr. Debree said to him, in the Court-room, when the prisoner was brought
in, "That is my boy!" This is hearsay evidence upon hearsay evidence. It
is monstrous! Yet on this slender thread of illegal testimony, hung all
the evidence of the facts of identity, slavery and escape. If it is
enough to prove that the man rescued was the man in custody, and upon
whom the Court was sitting in fact, no one denies it. But if it be
necessary to show that the man in custody was the man named in the
warrant, or that he was a slave, and a fugitive slave, there has been no
competent evidence of any of those facts, and no evidence at all but of
one of them.
This man was not rescued from the Court. The Court had adjourned. The
Marshal had chosen to make the Court-room a slave jail. The offence
would have been the same in the eye of the law, if he had been rescued
from the hands of the agent having no warrant, in the streets, or in a
railroad car.
I have nothing more to submit to the Court on the subject of the law
applicable to this case. I will now call your Honor's attention to the
facts in proof.
To avoid repetition and confusion, I will call your Honor's attention to
single points.
1. Mr. Davis was counsel in the case, and acted as such. Mr. Morton, who
knew Shadrach, and to whom Shadrach looked for advice, recommended Mr.
Davis to him as counsel. Mr. Riley testifies that Shadrach twice pointed
out Mr. Davis to him as one of his counsel, when officially inquired of
by Mr. Riley. Mr. King and Mr. List, counsellors of this court, testify
that Mr. Davis sat with, consulted with and conversed with the counsel
who addressed the court, made a prolonged and careful examination of the
papers, and was the first who raised the doubt of their sufficiency. Mr.
Sawin, an officer, says he acted as counsel. It is proved that he went
into the court room for the purpose of acting as counsel, and did not
leave the room or the bar at all (the government will admit, not for
more than a minute or two) until the last moment. What other evidence
can there be of counsel's authority? It is seldom if ever in writing,
but is proved by acts and recognitions. After such evidence of the acts
and recognitions of a hasty and troubled forenoon, including the
testimony of two of his own officers, I was amazed at the pertinacity of
the prosecuting officer in calling Mr. Curtis to prove that Mr. Davis
was not counsel. But Mr. Curtis admitted that he knew nothing of the
relations between Shadrach and Mr. Davis, that there are often counsel
who do not address the court, and that Mr. Davis might have been of such
counsel, for aught he knew. And most of the work of counsel was done
after Mr. Curtis left.
I think your Honor will find no difficulty in believing that Mr. Davis
acted as counsel for Shadrach, and was in attendance for that purpose.
2. To connect Mr. Davis with the rescue, the Government has found 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.
Now, may it please your Honor, how long and when was Prescott at that
post? According to his own testimony, about two minutes before the
rescue began, and as soon as he saw the attempt was serious, he left
that place for the stairs. Mr. Davis, then, must have entered the east
door one or two minutes before he went out of the west door. Now, Mr.
Warren, the Deputy Marshal, testifies that he passed through the entry
into this closet, just about two minutes before the rescue, and
remembers seeing a young white man standing at the corner. To avoid the
effect of this evidence, Prescott is recalled and says he remembers also
to have seen a man come out at the east door and go into the closet, at
this moment. But here the witness made a mistake. He thought that Mr.
Warren went through the east door, but Mr. Warren says that he came
along the entry, and had not been in or out of that door. What then is
the predicament in which Prescott has involved himself? Three different
men must have gone into that recess in the short space of two minutes;
two of them at least, must have been in the closet at the same minute;
and the east door must have been opened three times upon a knock from
without.
Against this evident mistake or wilful perversion, what is the evidence?
Mr. Riley and Mr. Warren both say that the east door was fastened on the
inside, with strict orders not to have it opened at all; and so strict
were they, that they themselves went and came by the west door. No one
can be found who opened that door or saw it opened, or saw Mr. Davis go
in or out at it, and it is next the Marshal's desk, and in plain sight
of every one. No one could come in at it, without knocking and having it
opened from within. During the half hour before the rescue, there was no
one in the room but the prisoner, the officers and the counsel. The
doors were both in plain sight, the east door locked, and at the west
door two officers, between whom every person must pass. Both these
officers testify that Mr. Davis did not go out or in to their knowledge.
Byrnes, Neale and Sawin, the other officers, did not see him go, and
think he did not leave the room. Mr. Riley is confident he did not leave
the room. Mr. Wright found Mr. Davis in the room, half an 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.
We might well ask, what if this were Mr. Davis? What does it prove? He
spoke to no one, except a "good day" to one man, and took no notice of
the crowd at the door. But I will not argue this supposition, for it is
not true. It was not Mr. Davis. He did not leave the room until he went
out for the last time.
Something has been attempted to be made out of Mr. Davis' conversation
with the officers in the room. A man engaged in a plot for a rescue,
would not be likely to expose himself to suspicion by violent remarks to
officers. But take the evidence as it stands. At the request of Mr.
List, he asked Sawin, whom he knew, if the man next Shadrach was a
Southern man. This was proper. The counsel did not wish a man to sit
next the prisoner, who might converse with him for the purpose of
getting admissions from him. They feared he might be an agent of the
claimant. He said privately to Mr. Sawin, whom he had known intimately
for years, that this was a dirty business he was engaged in. He did not
know Mr. Sawin to be an officer of the Court. He knew him as a city
constable; and supposed he had let himself out by the day as a catcher
of fugitive slaves. I know something of the feelings of Southern
gentlemen as to this class of men. They are necessary evils. They use
them as we use spies, informers and deserters in war; they use them, but
they despise them. I remember being in one of the chief cities of
Virginia, and passing a large, handsome house, when my friend said to
me, "There lives perhaps the richest man in our town, but he visits
nowhere, nobody notices him. He is looked upon with aversion. He is a
dealer in slaves! He keeps a slave-market, and pursues fugitives!" They
look upon this occupation with as much contempt, aye, with more contempt
than we seem to now; for there is a higher spirit in their aristocracy,
than in the ruling classes of our Northern cities at this moment. This
was the feeling of Mr. Davis, when he spoke to Sawin. This is the
feeling of every man of honor. He wished a man whom he knew, to be
engaged in a more respectable business. I have said the same. I saw a
man I knew in Court the other day, letting himself by the dollar a day,
in slave catching. I begged him, if he could find any honest mode of
getting a living, to abandon it.
_The Commissioner._ Did you know him to be engaged in his legal duties?
_Mr. Lunt._ A very improper remark!
_Mr. Dana._ I venture to suggest not. The remark was with reference to
the future, and not to the present.
_The Commissioner._ I see no distinction between attempting to deter men
from executing the law and assisting in violating it.
_Mr. Dana._ I am sorry I cannot see the impropriety of it. Perhaps I
have not made myself clearly understood. Mr. Davis expressed his opinion
that the man had better be in better business.
_The Commissioner._ It was equivalent to saying to the officer that the
execution of the law was a mean business.
_Mr. Dana._ That I propose to argue.
_The Commissioner._ On that point, the defendant himself intimated in
his cross-examination, that the expression was not used as an
observation in general. On being asked whether the remark was not said
with regard to his business, he replied, yes.
_Mr. Dana._ I did not so understand it. He intended to say this--Mr.
Sawin, you and I are old acquaintances. You are not obliged to do this
business. It is mean business. Why do you volunteer in it? This is what
I myself have said, and what every high-minded man must feel.
_Mr. Lunt_ 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.
_Mr. Dana_ simply bowed to the Attorney, and proceeded.
No citizen is bound to an active execution of this law, unless called
upon as one of the _posse comitatus_. Did your Honor feel bound to join
in the pursuit last Saturday, when the mob passed you at the corner of
Court street? Do you feel bound, of a pleasant evening, to walk about in
the neighborhood and see what fugitives you can find and dispose of?
Would any compensation tempt you to do it?
On the subject of the conversation with Byrnes, that was considered, of
course, very truculent, on the government's evidence. But when explained
by Mr. Minns, what is it? The defendant knows that the cause in which he
is engaged, by a strange revulsion of public feeling, is unpopular. It
is unprofitable, and whatever is unprofitable is unpopular. It is not
genteel, and persons doubtful of their gentility ridicule it. Now Mr.
Davis being engaged in this unpopular cause, Byrnes makes a remark which
Mr. Minns thought was intended to irritate Mr. Davis.
He did not hear the first part, but it ended with "killing the negroes."
Mr. Davis felt that it was intended as a taunt to him. He answered him,
"Then, on that principle, you ought to have your throats cut." I have no
doubt it was a logical conclusion from Mr. Byrnes' premises, and nothing
more.
Up to this point, what is the evidence against Mr. Davis? Am I not right
in saying, nothing whatever--nothing more than any man would be subject
to, who acted as counsel?
The only remaining point is his passing out of the door, and his conduct
in the entry. On this point there is but one witness against him, and
that is Mr. Byrnes, who, unfortunately, holds the office of Deputy
Marshal. I shall not go into an examination of the evidence as to the
reputation of this man. Twelve good men, known to us all, persons likely
to know Byrnes's character, have testified it is and has for years been
bad, decidedly bad; and it was not denied by his witness, that the
verdict at East Cambridge was rendered on the assumption of his not
being worthy of belief. His own witnesses were chiefly casual
acquaintances, or the boon companions of his bowling-alley and
billiard-room, the retailers of liquors, men who, like him, live by
violating the laws by night, which he lives by enforcing in the
day-time.
It is clearly proved that there was no suspicion of a rescue, either in
the court room or in the entry, until the instant it took place.
Prescott did not suspect it. Mr. Homer, the highly respectable assistant
clerk of the Municipal Court, who saw the whole occurrence from the
stairway, did not think it would be any thing serious. Mr. Warren, the
Deputy Marshal, passed through the group at the door twice, but two or
three minutes before the rescue, and suspected nothing. Five Courts were
in session, and persons were passing up the stairs and through the
passage-way to the last moment, and suspected nothing. The officers
inside suspected nothing. Their defence against negligence is the
defence of Mr. Davis. Mr. Davis knew that Mr. Morton expected to
purchase the freedom of Shadrach. He had confidence that the documentary
evidence was fatally defective. He was engaged to attend the
consultations on the defence, and on the Habeas Corpus, that afternoon.
He saw that Mr. Curtis was not disposed to hurry matters, or to deny the
prisoner full opportunities for defence. And I will do Mr. Curtis the
justice to say that I have no doubt it was his object to exhibit this
law to us in its most favorable light; to justify its makers as far as
possible. Mr. Davis neither knew, nor suspected, nor thought of a rescue
at that door. Every witness says he went out of the door in the usual
manner, except Hutchins, and when Hutchins thought he should have gone
out in full front, instead of side-wise, your Honor well asked how
otherwise could he have gone out, with a crowd against the door, and in
the passage? I see that your Honor thinks nothing of that; although in
the more jealous eye of the District Attorney, it is matter of
suspicion. To minds so disposed, there is nothing but is proof of guilt.
If Mr. Davis had marched out in full front, it would have been in order
to open the door wider, for the conspirators to rush in. Just so in the
case of poor Shadrach's coat. Yesterday the District Attorney was
certain that Mr. Davis, or some one apprised him of the intended rescue,
because he pulled his coat off. Now, when it is proved, by the
government's own witnesses, that Shadrach afterwards put his coat on
again, I suppose his putting it on will be just as good proof of the
same thing.
Mr. Byrnes, thinks he recognized Mr. Davis' voice in the entry, calling
out, "Take him out, boys!" But the same cry was uttered several times,
and Mr. Homer and Mr. Hutchins, who saw Mr. Davis at the moment, and
were outside, say it did not come from him, but from the negroes, and
Prescott attributes it to the negroes. Four men were nearer to Mr. Davis
than Byrnes was, and all of them exculpate Mr. Davis. And Byrnes is
confessedly hard of hearing, and not particularly familiar with Mr.
Davis' voice. Moreover his character for truth and veracity is
impeached.
Mr. Davis was on or near the platform when Mr. Homer saw him. Mr. Adams
met him on the lower floor, by the Marshal's office, while the noise was
going on up stairs; talked with him two or three minutes, and walked
round the building, and saw the crowd go up the street. This proves that
Mr. Davis did not linger near the rescuers; nor did he absolutely run
away, or fly, as a man would who desired to avoid discovery. On the
contrary, he did just as any other person would have done. He staid long
enough to let himself be seen by several persons, but not long enough to
be of any aid to the rescuers. Nothing can be clearer of cause for
imputation, than the conduct of Mr. Davis in the entry and on the
stairway.
Such, please your Honor, is all the evidence against the defendant. It
is reduced to an exclamation on the stair-case, sworn to, not very
confidently, by a deaf man, who was too far off to hear well at any rate
of hearing, denied by three officers, with good hearing, two of whom
were outside, while a dozen voices were calling out the same thing at
the same moment; the moment, too, one of alarm and excitement on the
part of the officers. If such evidence is sufficient, who can be safe?
Who would dare to act as counsel in any case of public excitement, with
a suspicious and angry government watching every motion, served by
officers of broken down reputations?
Please your Honor, I have done with the testimony. On what principles of
proof is the judgment to be made up?
The Constitution requires that no person shall be arrested without a
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.
_Mr. Lunt_ here intervened and said it was the custom for the District
Attorney to swear to complaints on hearsay evidence.
_Mr. Dana_--But this is not stated as hearsay. It is sworn to as a fact.
Charles G. Davis "_did_ rescue," and the above named George Lunt made
oath to the _truth of the facts_. As a question of conscience, I leave
it with that officer to settle with himself. As a matter of law, as a
matter of vital importance to every citizen, as a great question of
constitutional law, I earnestly protest against the issuing of warrants
on the mere formal oaths of official persons, representing a party in
the proceedings, and utterly ignorant of the facts they swear to. If it
be a custom, it is more honored in the breach than in the observance.
But I deny that it is the custom. Complaints are sworn to by persons
knowing the facts always in the State Courts, and in my experience in
the Federal Courts. If the prosecuting officer is obliged to swear to
them, for want of other witnesses, he only swears to his information and
belief.
In closing my prolonged remarks, let me recapitulate our case. Mr. Davis
is not the man to urge others to acts he dares not commit himself. He
believes this dreadful statute unconstitutional, a violation of our
moral sense, a great breach upon the safeguards of freedom every where.
Yet he will oppose it legally, by speech, by the pen, and in Court. He
will not yield to it any voluntary obedience, but he will not use force,
or counsel citizens to use force to set aside the laws. He rejoices that
Shadrach is free. Every right minded man rejoices that he is free. Sober
second thought teaches him and all of us that violent counsels are weak
counsels. Better had it been for the cause of freedom, if, when the
Marshal called out to shoot the prisoner, some armed minister of the law
had shot dead the unarmed, unoffending man! Better had it been for him,
and the cause of those like him, if John H. Riley, instead of flying to
the window, had plunged that sword to the hilt in the heart of the
captive! Better if this temple of justice, which has already been turned
into a slave jail, and a slave market, had also been made the shambles
and the grave!
While we uphold the public peace and the dignity of all laws, let us
regard with tenderness and consideration that poor class of oppressed
men, our negro population, on whom the statute falls with the terrors
and blackness of night. When one of their number, by his industry and
abilities has raised himself to the dignity of a place in this bar, it
was with mortification I heard him insulted, yesterday, on the stand, by
an officer of court, who pointed him out, in giving his evidence, as
"the little darkey lawyer." While I rejoiced at the rebuke administered
to that officer from the bench, it was with deep regret that I saw the
representative of the government lead off the laugh of the audience
against him.
_Mr. Lunt_--This is false.
_Mr. Dana_--Do you deny you did so? It was seen and noticed by us all. I
spoke to you at the time.
_Mr. Lunt_--I only smiled. I cannot always control my muscles.
_Mr. Dana_--I am sorry you could not control them on this occasion. It
led off and encouraged others, who take their cue from persons in high
stations.
The doings of these last few days are now part of history. If there has
been a hasty and a needless arrest of a respectable gentleman; if
counsel have been intimidated, or witnesses threatened; if liberty of
speech and action have been periled; if the dignity and duty of office
have been yielded to the unreasonable demands of political agents, and
the commands of a misinformed Executive,--the Inquest of public opinion
is to sit upon the whole transaction, and it will be held up to the
world. _Proximus ardet Ucalegon!_ There are revolutions in the wheel of
fortune. There are tides in the affairs of men.
Let us hope that your Honor will be able to set this occurrence in its
true light:--A sudden, unexpected, unpremeditated action of a group of
excited men, and successful because unexpected. But a sworn counsellor
of this Court, even in the excitement of the rescue of a slave to his
freedom, by those of his own flesh and bone, did not forget the duty he
owed personally to the Court and the law.
* * * * *