Chapter 2

_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.

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[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_].

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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.

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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.