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 b.a.l.l.s and a.s.semblies, 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 a.s.sembled here, this morning, under extraordinary circ.u.mstances. I am not aware that since the foundations of our inst.i.tutions were laid, since we became an independent people, since the Commonwealth of Ma.s.sachusetts 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 Const.i.tution 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 inst.i.tutions 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 inst.i.tutions 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 circ.u.mstances 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 a.s.serter 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 circ.u.mstances 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 pa.s.sed 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 cla.s.s. 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 Sat.u.r.day 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 pa.s.sage-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. n.o.body 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! n.o.body 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 Sat.u.r.day 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 circ.u.mstances. 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 n.o.body 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. Ma.s.sachusetts 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 Sat.u.r.day 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 antic.i.p.ate 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 partic.i.p.ation 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 const.i.tutionally pa.s.sed, though not const.i.tutional, we think, in its provisions. It is the law until repealed or judicially abrogated.

Who pa.s.sed this law? It was pa.s.sed 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 pa.s.sed 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 inst.i.tution of slavery, and pa.s.s over those Northern men who volunteer to bring this state of things upon us.

But as a citizen, within const.i.tutional 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 cla.s.s 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 pa.s.sive 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 const.i.tutional issue. If an unconst.i.tutional tax is levied, you refuse to pay it and raise the const.i.tutional question. This right seems to be lost sight of. Persons seem to think we are to obey statutes and not the const.i.tution. I understand that the duty to the const.i.tution 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 const.i.tutional 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 const.i.tutional issue. And in doing this, he ought to have the approbation of the Courts and their ministers, and of every person true to the const.i.tution 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 disfranchis.e.m.e.nt, 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.