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  United States vs. Charles G. Davis.

  REPORT

  OF THE

  PROCEEDINGS AT THE EXAMINATION

  OF

  CHARLES G. DAVIS, ESQ.,

  ON A

  CHARGE OF AIDING AND ABETTING IN THE
  RESCUE OF A FUGITIVE SLAVE.

  HELD IN BOSTON, IN FEBRUARY, 1851

  BOSTON:
  WHITE & POTTER, PRINTERS, 4 SPRING LANE.
  1851.




NOTE.


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.

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.

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]

[A: See the Opinion of Attorney General Crittenden.]

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.

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.




REPORT.


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:--


UNITED STATES OF AMERICA.

_Massachusetts District, ss._

To the Marshal of our District of Massachusetts, or either of his deputies.

[Seal]

Greeting:

     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.

     Hereof fail not, and make due return of this with your doings
     thereon, before me.

     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.

(Signed)      GEO. T. CURTIS,

Commissioner of the Circuit Court of the United States,
for Massachusetts District.

       *       *       *       *       *

The following return was endorsed upon the warrant:--

BOSTON, February 15th, 1851.

     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. RILEY, U. S. Deputy Marshal.

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.

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:--

     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.

GEO. T. CURTIS, Commissioner.

       *       *       *       *       *

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.

     BOSTON, Tuesday, February 18th, 1851.

     UNITED STATES OF AMERICA.

     _Massachusetts District, ss._

     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. RILEY, U. S. Deputy Marshal.

       *       *       *       *       *

     COMMONWEALTH OF MASSACHUSETTS.

     _Suffolk County._

     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.

     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 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.

     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.

     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 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.

     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.

     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.

     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.

     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. RILEY,
U. S. Deputy Marshal, Massachusetts District.

       *       *       *       *       *

     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.

HORATIO WOODMAN, Justice of the Peace.

       *       *       *       *       *

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, inasmuch as it purported to narrate facts which took
place previous to the last hearing, and the order thereon.

The Commissioner inquired of Mr. Sewall, for whom he appeared. Answer,
"For the alleged fugitive, called Shadrach."

The Commissioner,--"You cannot appear for a person who has avoided
process."

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."

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."

Mr. Curtis declared the proceedings suspended, and ordered the Marshal
to proclaim the Court adjourned indefinitely.

       *       *       *       *       *

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.

       *       *       *       *       *

Thursday morning, February 20, 1851. U. S. Circuit Court Room. Before B.
F. Hallett, U. S. Commissioner.

_United States, vs. Charles G. Davis._

George Lunt, Esq., District Attorney, appeared for the United States.

Richard H. Dana, Jr., and Charles G. Davis, Esquires., for the defence.

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:--

     UNITED STATES OF AMERICA.

     _Massachusetts District, ss._

     To B. F. Hallett, Esq., Commissioner of the Circuit Court of the
     United States, for the District of Massachusetts.

     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.

(Signed)      GEORGE LUNT, U. S. Attorney.

     BOSTON, February 17th, 1851.

     UNITED STATES OF AMERICA.

     _Massachusetts District, ss._

     Then the above named George Lunt, personally appeared, and made
     oath to the truth of the above complaint, by him subscribed.

Before me,      (Signed)      B. F. HALLETT,
Commissioner of the U. S. Circuit Court,
for Massachusetts District.

_Amended Count._ 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.

Mr. Davis thereupon repeated his plea of not guilty.

       *       *       *       *       *

[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.

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 _alleged fugitive_, an
attempt to rescue him would be an offence under the act.

Mr. Sewall, counsel for Mr. Wright, protested against the ruling.

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.

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.

The Commissioner stated that the papers should go in as papers having a
tendency to show that Shadrach was an _alleged fugitive_].

       *       *       *       *       *

THE GOVERNMENT THEN OPENED ITS TESTIMONY.

_Patrick Riley._ 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
11-1/2 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 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.

_To the Commissioner._ 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.

_Cross examination by Mr. Davis._ 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.

_To the Commissioner._ Commissioner Curtis ordered prisoner be kept till
Tuesday morning safely; I carried it out in reference to prisoner.

_Cross examination resumed._ 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 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.

_To the Commissioner._ Some colored friend I supposed--can't swear it
was Davis asked it.

_Mr. Dana._ Do you know the person you arrested, was the person named in
the warrant?

_Answer._ The person rescued was the person arrested under the warrant,
but cannot say he was the person named in the warrant.

_The Commissioner._ Do you contradict your return? The return is
conclusive.

_Mr. Lunt._ Mr. Riley, do you mean to contradict your return! I warn
you, Sir!

_Mr. Dana._ 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?

_Mr. Lunt._ I warn you, Mr. Riley, not to give that testimony! I warn
you, Sir!

_The Commissioner._ The return of the officer is conclusive.

_Mr. Dana._ 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?

_The Commissioner._ I think, Sir, the return of the officer is
conclusive in all these proceedings.

_Mr. Dana._ But the fact is already in--and the return is nullified. The
objection is too late.

_The Commissioner._ If he has answered, it may go in, _de bene esse_.

_Mr. Lunt._ Does the Commissioner mean to rule in that testimony?

_The Commissioner._ I receive it _de bene esse_; to give such weight to
it as I shall think proper.

_Mr. Dana._ Mr. Riley, do you know whether the man you arrested was the
man named in the original warrant?

_Mr. Riley._ 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.

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.

_To District Attorney._ There might have been fifteen persons in court
room when I left. My attention was not directed to Davis particularly.
He _might_ have been absent without my knowledge.

_To Mr. Dana._ I kept my eye on the door after the room was
cleared--ordered that no one should be admitted.

_Charles Sawin, Dep. Marsh._ 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 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.

_Cross examined by Mr. Davis._ 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.

_Mr. Davis._ What Mr. Morris?

_Sawin._ That one! (pointing to Mr. Morris, who was in the bar) The
little darkey lawyer!

_The Commissioner._ 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.

_Sawin._ I meant no disrespect. I only used the expression for the
purpose of designating the man.

_Mr. Dean._ The remark seems to amuse the district attorney.

_Mr. Lunt._ I cannot always control my muscles.

_Sawin._ (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.

_Fred. D. Byrnes._ 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.

_Cross examined._ 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 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.

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.

_To Mr. Dana._ 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.

_To Mr. Lunt._ I saw a cleaver in the hands of a black man outside the
door. He was standing rather back.

_To Mr. Dana._ 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.

_To Mr. Lunt._ 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.

Friday, Feb. 21st. _Calvin Hutchins_ 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.

_Cross examined._ (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.

_To the Commissioner._ 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.

       *       *       *       *       *

Col. Seth J. Thomas was next called, and put, by the counsel for the
defence, on his _voir dire_, 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.

Mr. Dana inquired what was to be proved by this witness.

_Mr. Lunt._ That the person under arrest was claimed as a fugitive.

_Mr. Thomas._ Was here on Saturday last, saw a person called Shadrach,
who was alleged to be a fugitive slave.

This evidence was strongly objected to as hearsay, but held admissible
by the Commissioner.

_Cross examined._ My means of information is confined to others. Don't
know that I ever saw the negro before.

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.

_Mr. Davis._ 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?

_The Commissioner._ The Government may prove by Col. Thomas that the man
arrested was the man claimed.

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 _prima facie_ evidence that the man arrested
was the said Shadrach.

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.

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.

_Simpson Clark_, recalled.

_Mr. Lunt._ I propose to show that Shadrach admitted he was a slave, and
owned by De Bree, and that his name was Shadrach.

_Mr. Dana._ 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.

_The Commissioner._ 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"]

_Mr. Clark._ 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 talking to the officers and
others. I was at the further side of the door when Mr. Davis went out.
[Describes the scene.]

_Mr. Lunt._ Did you hear Mr. Davis testify the other day, if so, what
did he say?

_Mr. Clark._ 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.

_To Mr. Davis._ 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.

_Mr. Davis._ Do you remember his saying anything further concerning his
position, showing any religious feeling?

_Mr. Lunt._ Religious feelings have nothing to do with this case.

_Mr. Davis._ I am aware of that, I waive the inquiry.

_Mr. Clark._ 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."

_George T. Curtis, Esq._, 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.

_To Mr. Dana._ 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.]

_Austin S. Cushing._ 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.

_Jessee P. Prescott_, 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.

_Cross examined._ 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.

Mr. Lunt here rested the case for the prosecution.

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.

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.


TESTIMONY FOR THE DEFENCE.

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.

       *       *       *       *       *

William Ross was called to the stand as to the character of Byrnes, but
Mr. Byrnes being absent, was withdrawn.

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.

The prisoner put on his coat while within the bar, before Mr. Davis left
the room.

_To Mr. Lunt._ 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.

_Cross Examined._ _To Mr. Davis._ 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.

_Mr. Davis._ It was that which reminded me of fugitive slave warrants?

_Mr. Riley._ You answered the question, and then asked about warrants. I
was waiting for Mr. Sawin, and Mr. Curtis at the time.

_Henry Homer,_ 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.

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.

_To the Commissioner._--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.

_Afternoon._--Gustavus Andrews, jailor. I have known Frederick D. Byrnes
ever since he came to Boston. His general reputation for truth and
veracity is bad.

_Cross Examined._ I heard his character discussed by officers, and other
persons. 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.

_Hiram Wellington, Esq._ Attorney at Law. Had known Frederick D. Byrnes
about seven years--his general reputation for truth and veracity is
decidedly bad.

_Cross Examined._--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.

_William Ross_, 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.

_Cross Examined._ 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.

_Derastus Clapp_, 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.

_The Commissioner._--I think you cannot ask about reputation two years
ago.

_Mr. Lunt_ said it was clearly inadmissible.

_Mr. Dana_ 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.

_The Commissioner_ thought he should take time to decide the point.

_Mr. Lunt_ said there might be a difference of practice in different
states.

_Ira Gibbs._--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.

_Charles Smith_--Constable and Coroner--Have known Mr. Byrnes about ten
years; his character for truth, &c., bad.

_Cross Examined._--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.

Officers _Rice_, _Dexter_, _Neale_, and _Luther Hutchins_, examined as
to the character of Mr. Byrnes for truth, testified to the same effect
as the preceding witness.

_Thomas S. Harlow, Esq._, Counseller at Law. I have known Frederick D.
Byrnes seven or eight years. His reputation for truth and veracity is
bad.

_Cross Examined._--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.

At this stage, the court adjourned till Saturday, Feb. 22.

_Saturday, February 22d._--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.

_Cross Examined._--When he was so spoken of, reference was had to some
business 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.

_John G. King. Esq._, 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.

_Marcus Morton, Jr., Esq._, 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.

_Cross Examined._--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.

_Charles List, Esq._, 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.

_Mr. Dana_ 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].

_Mr. Lunt_ objected to the inquiry, the charge against Mr. Davis being
that he committed a specific act.

_Mr. Dana_ waived the point for the present.

_Mr. List_ 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.

_Cross Examined._--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, 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].

_Mr. Lunt_ 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.

_George W. Adams, Esq._, 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.

_Alonzo F. Neale_, 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.

_George W. Minns, Esq._, Counsellor at Law.--I was in this court room
between one and two on Saturday,--saw Mr. Davis was here. Including the
officers and counsel, there appeared to be about a dozen persons in the
court room, when I was admitted. Heard Mr. Riley say the prisoner would
be allowed to see his friends from time to time, and every thing
reasonable done to make his situation comfortable. Saw Mr. Davis--his
manner was calm. He remained so till an incident occurred. Some person
behind where I was sitting said something, concluding with the remark,
"Kill the negroes!" I thought the remark came from Mr. Byrnes, but I
don't know. Mr. Davis, at the time, was walking from the table to me,
and heard it. He was irritated by the remark, and said--"Then, on that
principle, you ought to have your throats cut." Mr. Byrnes and another
officer were behind me. I was sitting within the bar, next to the
railing, which was between me and Byrnes and the other officer. I know
Mr. Byrnes' voice, and am able to recognize it, and I thought at the
time that it was he who made the remark, but I cannot swear. It was not
very loud, and I did not turn round to look at Mr. Byrnes. I didn't
think from the tone, that the remark was made by one who intended to
kill the negro, but I thought it was made for the purpose of irritating
or insulting Mr. Davis. My attention was chiefly occupied in looking at
the prisoner.

_Frederick Warren_, deputy marshal. I left the court room about five
minutes before two o'clock--went down stairs--came back by the passage
up to the supreme court--went to the closet, and there heard the shout;
came out of the closet; found the crowd more dense than five minutes
before, and the door being pulled and vibrating; proceeded to the city
marshal's office, to notify the marshal, who said he could do nothing. I
told him the crowd was forcing the door. I think I saw a white person
near the corner of the recess, when I entered the closet. When I got
back from the city hall, the rescue had been made.

[The object of Mr. Warren's testimony was to show that it was he, and
not Mr. Davis, who was seen in the passage, and to go into the court
room a few minutes before the rescue].

_Elizur Wright,_ one of the editors of the Commonwealth,--I was in the
court room on Saturday,--I came about half past one,--I had previously
been at the Adams House, attending a meeting of the proprietors of the
Commonwealth. I met some reporters coming out of the court room, when I
got to the door. The officers refused to admit me. I said I was
connected with the press, and was soon admitted. I saw Mr. Davis, but
was not acquainted with him. Did not know his name. Understood they had
been examining papers. Had no conversation with Davis, except what I now
state. I got into a little difficulty with Mr. Riley, by supposing him
to be the counsel for the claimant. Mr. Davis then told me that Mr.
Riley was the deputy marshal. I said to some of the people, that there
were not many persons outside, and I may have said so to Mr. Davis. When
Mr. Davis went out, I was just about where Mr. List is now sitting, in
front of the clerk's desk.

At this stage, the court adjourned till Monday.

       *       *       *       *       *

_Monday, February_ 24.--Mr. Commissioner Hallett resumed the examination
at 10 o'clock.

_Elizur Wright_ 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.

_Cross Examined._ Mr. Sewall stated to me the _quo modo_ 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.

_Mr. Lunt_--Are you one of the editors of the Commonwealth? [Witness did
not answer, but smiled].

_Mr. Dana_--I object to the question, and ask the purpose of the
district attorney in proposing to put in anything in relation to the
connection of the witness with that newspaper.

_The Commissioner_ remarked that the inquiry was irrelevant, unless the
district attorney expected to show from it a bias on the part of the
witness.

_Mr. Wright_ 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.

_Richard H. Dana, Jr._ was called to the stand by Mr. Davis.

[Mr. Dana said that when he entered upon the case, he did not suppose he
should be a witness, or he would have declined acting as counsel.

_The Commissioner._ There is no impropriety in it in a preliminary
inquiry; and in your case, never.]

On Saturday morning, Mr. Davis called at my office and told me that a
man had just been arrested as a fugitive slave, and was before the
Court, and proposed that we should offer our services as counsel. I
asked if he had counsel. Mr. Davis said it was a sudden arrest, and a
case for volunteers. We went over to the Court Room. The Court was in
session. There was a division of labor. It was agreed that I should take
charge of the Habeas Corpus and of a writ _de homine replegiando_, and
Mr. Davis was to remain and assist at the hearing. I went to the
Marshal's office, and there drew up a petition for a habeas corpus, and
filled out a writ _de homine replegiando_. Deputy Marshal Warren was
present. I left word with the counsel to send me down some one to swear
to the petition in the prisoner's behalf. Mr. Morris came with Mr.
Loring and swore to the petition. I then went to Chief Justice Shaw, and
asked for the writ. He refused it, for reasons which he gave. I returned
to the Court Room, reported my proceedings to the counsel, and prepared
to obviate the objections of Judge Shaw. Mr. Davis knew of all these
proceedings. Just then Mr. Curtis adjourned the Court to Tuesday.
Finding that there was to be no hurrying, I agreed with the counsel,
(including Mr. Davis.) to meet them in consultation at 3-1/2 P.M., at
Mr. Sewall's office. Bespoke a copy of the warrant from Mr. Riley, and
returned to my office. A little after half past one, I received a
message that, by the Marshal's permission, the counsel were to remain
awhile in the Court Room for consultation, and wished me to join them
there. I sent word that I would come immediately. I was accidentally
detained, by a client, until nearly 2 o'clock, and, in the interval, the
rescue had taken place.

_To Mr. Lunt._ I heard some conversation from people of all opinions, in
the way of conjecture or inquiry as to whether the blacks would resort
to force, but nothing in the way of advising or planning such a course.

_Mr. Lunt._ Can you say that none of those who acted as counsel here,
spoke of it?

_Mr. Dana._ I can say, most positively, that I never heard one of the
gentlemen who acted as counsel here, say any thing in the way of
advising or planning a resort to violence, or that indicated any
knowledge or belief on their part that it would take place.

_Mr. Lunt._ Did you attend the meetings at Faneuil Hall in October,
relating to the Fugitive Slave Bill?

_Mr. Dana._ One I did, the other I did not. I do not recollect the
dates. When I attended, I read a letter from President Quincy, at the
request of one of his family. That will fix the date.

_Mr. Lunt._ Did you speak at that meeting?

_Mr. Dana._ I object to these questions as matter of right. I am not
obliged to answer them. But, personally, I have no objection to
answering them.

_Mr. Lunt._ I think it would be a satisfaction to the community to know
from yourself how the matter stands as to these meetings.

_Mr. Dana._ On that ground, I have no objections to answering. I did not
speak at this meeting, for reasons of my own. For the same reasons I did
not attend the second meeting. I wrote a set of resolutions, which I
believe were adopted. These I am ready to stand or fall by.

_The Commissioner._ I read them. They were unexceptionable.

_Mr. Dana._ Unexceptionable in a legal view; but your Honor could not
agree to the opinions expressed. After the meeting had adjourned, as I
was informed, (and as it was stated in the papers,) a resolution was
put, and declared by the crowd to be passed, but it was irregular and
not noticed by the officers. That resolution was objectionable, in my
opinion. But in none of the meetings or consultations I have attended,
have any of the gentlemen recommended or suggested use of force against
the law. The private meetings have related to the use of legal defences
and modes of raising and presenting constitutional questions, and have
been composed of lawyers, almost, if not quite, exclusively. The
opinions of the defendant, so far as I know, are the same as mine. He
believes the act unconstitutional and unjust, and will give it no
voluntary aid, but will not recommend or join in forcible violations of
it. I am willing to say this, since we have got upon the subject,
although it is not testimony.

_Charles H. Brainard._ I have heard Mr. Byrnes' reputation for truth and
veracity spoken of, but not until these trials had commenced.

_Charles C. Conley._ Had heard Mr. Byrnes' truth, &c., spoken against
for some time back.

_Charles Mead_ examined on same point, but did not testify definitely.

_Mr. Dana to Mr. Lunt._ It was in the lobby that I saw Chief Justice
Shaw in relation to the habeas corpus. I came into the court room and
reported the result to the counsel. It was after the proceedings before
the Commissioner were over.

_To Mr. Davis._ My impression is that I saw some of the crowd enter the
door on the west side of the building after I heard the yell in the
Court-House.

Mr. Dana here proposed to put in the testimony given by Mr. Davis on the
examination of Mr. Wright, on the ground that the government had asked
Mr. Clark whether he heard Mr. Davis's testimony in Mr. Wright's case,
and he had stated a portion of it.

Mr. Lunt objected.

Mr. Dana said the government had put it in either as conversation or as
confession. In either case the defendant was entitled to the whole of
it, under the general principles of evidence.

_The Commissioner._ You may put in all that part of Mr. Davis's
testimony which concerns the statement of transactions which Mr. Clark
testified that Mr. Davis said, but no more.

Mr. Dana then read a small portion of Mr. Davis's testimony, and said he
should rest his defence for the present.

_J. S. Prescott_, recalled by the government.--I recollect seeing Mr.
Warren in the passage-way after the man was carried down stairs; but he
was not the person I saw before the rescue, and who went in by the door
next to the Marshal's desk. That man spoke to one of the colored men. I
also saw a man come out of that door, go into the closet, and return
into the court room by the same door.

_Cross-ex._ I saw Mr. Warren start on the run down stairs. Saw Mr. Neale
too. I said to him--"What, have they rescued the man?" and he said they
had. He appeared agitated. At the time I spoke to Mr. Neale I knew they
had taken the negro out. I spoke to Mr. Neale because I took him for an
officer. I was at the Court House to see a Mr. Pearson in the Supreme
Court.

After the rescue I had some conversation in Court Square on Saturday
afternoon with Mr. Simon Hanscom, a reporter. I did not tell him I was
in the Court Room; but told him I was present when the crowd rushed in.
I knew that several people saw me there. I had been told I had been seen
there. I felt it to be my duty to tell Mr. Riley what I knew about the
proceedings, as I regarded it as outrageous. I may have said in one
sense, I was glad the man had got away, so far as he was concerned. I
gave notice first to Mr. Riley of what I knew. I expected to be called
as a witness. Knew that it was known I was here. Think I should not have
spoken to Mr. Riley if I had not known that I had spoken of having been
here. I do not exactly approve of the law, for I think there might be a
trial by jury; but so long as it was the law, I did not want to see it
put down in the manner it was. Some one pointed me out to Mr. Hanscom,
as a person who saw the whole of it. I was laughing about it. Mr.
Hanscom called me aside. I could not help laughing. My conversation with
Mr. Hanscom was a very short one. I think I said something about mob
law. Mr. Hanscom tried to get me to talk more; but knowing him to be a
reporter, and the paper he was reporter for, I did not say much to him.

_To the Commissioner._ The person I took to be Mr. Davis, in the
passage, had spectacles, I think, and had his hat in his hand. I did not
think there was a rescue intended until they drew the man out. I
supposed the negroes, in trying to get the door open, only wanted to get
in and see the trial. A few minutes before, in the street, I had been
told that there was a slave case on trial in the U. S. Court.

_Mr. Sawin_, recalled. When Mr. Davis said we all ought to have our
throats cut, he spoke to me. Mr. Byrnes had said nothing about killing
the negro. I heard no such remark from any body. I saw Mr. Minns in the
room.

_The Commissioner._ Why didn't you report the remark of Mr. Davis to the
Commissioner?

_Mr. Sawin._ I did not think enough of the remark to report it to the
Commissioner. I was friendly to Mr. Davis, and had known him a long
time.

_Cross-ex._ It was a private remark.

James H. Blake, late city marshal, Geo. Woodman, Nathan Hyde, John S.
Phillips, and F. L. Cushman, Custom House officers, were then called to
testify concerning the character of Mr. Byrnes. They had known him
casually, and had never heard any thing said about his character.

Robert McGill, Brigham N. Bacon, Levi Whitney, Geo. W. Barker, and M. C.
Woodman, of the Merchant's Hotel and Exchange Coffee House, testified
that they had known him as frequenting their houses several years, and
never heard his character called in question.

R. M. Kibbe, keeper of a billiard-room and eating-house, Joseph Cochran,
keeper of a restaurant, G. L. Gilbert, late of California, previously a
dealer in spirituous liquors, J. G. Smith, wholesale wine and liquor
dealer, Henry Gilbert, dealer in ale and liquors, and Daniel Leland,
Jr., vinegar manufacturer, had known Mr. Byrnes as a customer several
years, and have not heard his character for truth questioned.

Sylvanus Mitchell, Richard Nutter, ---- Gilbert, and James H. Mitchell
had known him in Bridgewater 15 or 20 years ago, but had never been
intimate with them. Not known much of him of late years, and had not
heard his character for truth questioned.

George W. Phillips, attorney at law, had known Byrnes several years as
an officer, and had never heard his character called in question until
within a week.

John L. Roberts, a mason, had known Byrnes by name for a year, but had
never heard him spoken of.

Richard Hosea, constable, testified that his character was good as far
as he knew.

John Roberts, book-binder, had known him several years, not as an
acquaintance or neighbor, and had never heard his character doubted
until last week.

Samuel G. Andrews, a printer, living in Somerville the last year, had
met him 4 or 5 years, occasionally, and had never heard his character
questioned.

Robert T. Alden, sail-maker, had known him 10 years, never heard his
character for truth doubted.

Cross examined. Had met him at balls and assemblies, had known him as a
constable, plumber, and keeper of Cape Cottage.

It appeared from cross examination of the other witnesses, that Mr.
Byrnes had also been known as a farmer, iron founder, tack maker,
sailor, keeper of a restaurant, keeper of a bowling alley, real estate
broker, grocer, and deputy marshal. None of the witnesses had been his
neighbors since he left Bridgewater.

Elisha P. Glover, officer in the employ of the marshal. Had never heard
Byrnes' character called in question until a year ago, don't recollect
hearing it spoken of since then. Did hear one of the witnesses speak of
it a few days after. Was a witness for Byrnes at that trial.

_Simon P. Hanscom_ 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.

_Cross examination._ Mr. Prescott said it was well done, and he appeared
very 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.

_Mr. Lunt._ Is Mr. Davis often at the office of the Commonwealth?

_Mr. Hanscom._ I have seen him there once or twice before the rescue,
and once since.

The evidence was here announced to be closed on both sides, and the
court was adjourned to Tuesday, 10 o'clock.

       *       *       *       *       *

MR. DANA THEN ADDRESSED THE COURT, AS FOLLOWS:

_May it please your Honor:_

Certainly, Mr. Commissioner, we are assembled here, this morning, under
extraordinary circumstances. I am not aware that since the foundations
of our institutions were laid, since we became an independent people,
since the Commonwealth of Massachusetts had an independent existence,--I
am not aware that a case similar to this has once arisen. I do not know
that ever before in our history, a judicial tribunal has sat, even for a
preliminary hearing, upon a gentleman of education, a counsellor of the
law, sworn doubly, as a Justice of the Peace, and as a Counsellor in all
the Courts, to sustain the Constitution of the United States and the
laws made in pursuance thereof,--a gentleman of property, family,
friends, reputation, who has more at stake in the preservation of these
institutions than nine in ten of those who charge him with this
crime;--who stands charged with an offence (in the construction now
attempted to be put upon the statute) of a treasonable character, a
treasonable misdemeanor, an attempt to rescue a person from the law by
force, an attempt to set up violence against the law of the land.

Therefore it is that this trial attracts this unusual interest. It is
not that, so far as this defendant is concerned, the question whether he
be bound over here, or whether the District Attorney takes his case
directly to the Grand Jury, can make the slightest difference in the
world; but because the decision of this tribunal, though only
preliminary, will have great effect upon the community, and will be
carried throughout the United States. It is because of the political
weight attached to it, that such anxiety is felt for the result. For the
simple rescue of a prisoner out of the hands of an officer, is a thing
that occurs in our streets not very unfrequently, and often in other
cities. It might have occurred up stairs, and not have attracted a
moment's attention.

Who, Mr. Commissioner, is the defendant, at the bar? I have said that he
is a Justice of the Peace, sworn to sustain the laws, a counsellor of
this court and of all the courts of the United States in this State,
sworn doubly to sustain the laws. He is a gentleman of property and
education, whose professional reputation and emolument depend upon
sustaining law against force; a man whose ancestors, of the ancient
Pilgrim stock of Plymouth, are among those who laid the foundations of
the institutions that we enjoy. He has at this moment so much interest
in the way of personal pride, historical recollections, property, in
family, reputation, honor and emolument in these courts--so much at
stake as to render it impossible to believe, except on the strongest
confirmation, that he should be guilty of the offence charged against
him at this moment.

The charge against the defendant involves the meanness of instigating
others to an act he dares not commit of himself, of putting forward
obscure and oppressed men, to dare the dangers and bear the penalties
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.

       *       *       *       *       *

ARGUMENT OF GEORGE LUNT, ESQ., DISTRICT ATTORNEY.

Mr. Lunt said that the counsel for the defence had commenced by saying,
that he did not know how he was to be answered. He should not reply to
the first two hours of the gentleman's speech. The gentleman has alluded
to constitutional doctrines, and opinions, which a small class of the
community entertain. I shall not spend my time for popular effect. Some
of his remarks come with an ill grace from him, and those with whom he
associates. The gentleman should take care how he is associated. I have
nothing to say against the colored people--ignorant--degraded, no doubt,
but peaceable, as a general thing; they would be glad to get away from
people who meddle with them, and would prefer to be let alone. But I say
it is dangerous and mischievous to recommend such doctrines as the
gentleman avows. _Proximus ardet Ucalegon!_ The relation of counsel in
which he appears here may be changed. The sentiments he has uttered here
place _him_ in peril. He will find it _so_, _to his cost_, unless he
changes the tone of his remarks, on this and future occasions.

I will proceed at once to the evidence. The question here is, has a law
of the United States been violated? I throw to the winds every question
except whether this defendant is guilty; high or low, it matters not;
the higher in station, the more amenable. I do not suppose for a moment
that the Commissioner has any prejudice. We cannot, and we never will
regard, the office, which the counsel seems to consider sacred. The
sacredness of an office depends upon the sacredness of character. I am
accused of having arrested an individual with unseemly haste, a person
of character, of a family whose name is known in history; a member of
the bar, bound to preserve the law, counsel at the time, and entitled to
perfect freedom. I can state with confidence that the defendant was not
arrested until after a full personal investigation of facts, and then on
a keen sense of duty. Now what were the grounds in general, on which the
warrant was issued? Mr. Davis meets Mr. Riley in the morning, upon
which, after an inquiry whether he has seen Mr. Curtis, he asked if he
has a slave case? a question he might well ask, considering the company
with which he is associated. He asks him again in this Court room.

_Mr. Dana_--There is no evidence of that,--the evidence is, that after
the adjournment he asked an explanation from Mr. Riley of the interview
in the morning.

_The Commissioner_ referring to his notes--says, he believes Mr. Dana is
right.

_Mr. Lunt._ 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.

_Mr Dana._--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.

_The Commissioner._--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.

_Mr. Lunt._--This is the account,--Reads from the Boston Post of October
15, 1850.


THE FUGITIVE SLAVE LAW MEETING.

"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.

"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.

"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.

"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.

"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.

"Speeches were made by Wendell Phillips, James W. Briggs, of Ohio,
Charles Remond, and the Rev. Mr. Colver. The resolutions were 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:--"

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.

The Statute provides that whoever has been engaged in aiding, abetting,
or assisting, _directly or indirectly_, 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?

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.

For some unaccountable reason Mr. Davis remains here; for it is
unaccounted for. Was he counsel?

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.

(It was suggested that there was no such evidence.)

What was he waiting for? What single thing did he do as counsel?

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.

The Commissioner inquires whether not interfering may not be indirectly
aiding and abetting.

_Mr. Lunt._ I am not ready to take that ground at present.

_The Commissioner._ He is undoubtedly liable, as a magistrate, and
subject to a fine of $300.

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.

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.

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.

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.

       *       *       *       *       *

_Wednesday, Feb. 26._ Upon the opening of the Court the Commissioner
delivered his decision.

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.

"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."

"These facts have a legal bearing upon the _animus_, 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
process, 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."

       *       *       *       *       *

"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." * * *

"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." * * *

"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?"

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. * * *

"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, 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."

The commissioner now addressed the defendant personally, and
said--"Charles G. Davis, the court order you to be discharged, and go
without day."




Act of Congress of 1850.

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.

_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, 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.

SEC. 2. _And be it further enacted_, 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.

SEC. 3. _And be it further enacted_, 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.

SEC. 4. _And be it further enacted_, 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.

SEC. 5. _And be it further enacted_, 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 _posse comitatus_ 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.

SEC. 6. _And be it further enacted_, That when _a person held to service
or labor in any State or_ 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, _may pursue and reclaim such fugitive person_, 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 _such person owing service or labor_ 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
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.

SEC. 7. _And be it further enacted_, 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 _such fugitive from service or labor_, either with or
without process as aforesaid; or shall rescue, or attempt to rescue,
_such fugitive from service or labor_, 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 _fugitive_, 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 _each fugitive so lost_ 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.

SEC. 8. _And be it further enacted_, 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.

SEC. 9. _And be it further enacted_, 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.

SEC. 10. _And be it further enacted_, 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: _Provided_. 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.

HOWELL COBB,
_Speaker of the House of Representatives._

WILLIAM R. KING.
_President of the Senate, pro tempore._

Approved September 18th, 1850.

MILLARD FILLMORE.