Chapter 7

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.