Chapter 4

_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.

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_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.

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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.