The history of democratic governments shows that they may be as arbitrary as any absolute monarchy. Athens and Paris have, under democratic forms, been the standing ill.u.s.trations of tyranny and arbitrary rule the world over. Those are free governments, in which there is a government of just laws, whether wrought out through a mixed government, as in England, or wrought out as here by the people themselves, and cast into representative forms. And now we see before us the anomaly, the mortifying contradiction, that it is in Great Britain, and not in the republic of the United States, with our venerated Declaration of Independence, that the great principles of Liberty and Fraternity are practically carried out. I do not mean to reflect upon any person or persons south or north of a certain geographical line. Our ancestors have eaten sour grapes, and their childrens' teeth are set on edge. We are all under the same condemnation. We are all responsible for these laws--for slavery, in some form or other. Our const.i.tutional compact makes us responsible, and we cannot escape from our share of the evil and the wrong.

But I must leave these generalities, and pa.s.s to the particular points of this case. This is the first case of its kind that has occurred. The decision in this case by the Commissioner, though not matter of precedent, yet goes to the profession, the press, and into the private records of the country. Therefore we may be excused if we pay some considerable attention to the points of law involved.

In the first place, it should be borne in mind that a fugitive slave is not a criminal.

A few years ago, it was thought in Ma.s.sachusetts that the pursuing of slaves was criminal. I thank G.o.d, it is not yet decided that the escaping from slavery is criminal. It is a mere question of property under this act. This law has recognized certain property in slaves, claimed in a certain manner, in the free States. It is a mere question of property. The Southern man has certain property in his slave. That property we do not here recognise. But if the property escapes, and he pursues it, it is to be recognised in this court. Consequently, when a Southern man comes here and seizes a person as his property, he takes him at his own risk, a risk which every man takes in seizing any thing as his property. If he seizes the wrong property, any person who owns it, may resist him, or resist his officer armed with a warrant. This has been ruled in various cases.

Your Honor recollects in the 8th Pickering, the case of the Commonwealth vs. Kennard. There the writ was placed in the hands of the officer, to go and attach some property of the defendant. He attached certain property which he thought belonged to the defendant. He showed his warrant, but the true owners put him, neck and heels, out of the house.

They were indicted, but the Court sustained them in their act.

In a civil action, if the wrong person, the wrong horse, or the wrong slave, is taken, then the owner of the property may defend it, or the man seized may defend himself if he chooses. There is a different statute on the subject of interfering with the process of the courts, interfering with judicial processes, under which this respondent is not held to answer. Whenever this respondent is held to answer for resisting judicial processes, then these other questions may be raised.

He is now only charged with rescuing property from the owner, or the officer holding for the owner.

The Const.i.tution says that any person _charged_ with crime, and escaping, shall delivered up. But in the case of the Fugitive Slave, it carefully alters the phraseology. It does not say that any person _charged_ with being a Fugitive Slave shall be surrendered, but any person who _is_ a Fugitive Slave. In the one case, the _charge_ is the only material fact, and is proved by record. In the other case, which is a question of property, the fact of property is the foundation of the proceeding. So, in this act of 1850, the 6th Section does not provide that any person who _claims_ a Fugitive Slave, shall have the right to arrest him, but any person who _is the owner_ of a Fugitive Slave, may arrest him. So in the 7th Section, the penalty is not inflicted for rescuing a person who is _claimed_ as a Fugitive Slave, but for rescuing a person who _is_ a Fugitive Slave. These provisions are in a.n.a.logy with the law of property, and of the arrest of persons and property, in all other cases. As bad as this statute is, it is not quite so bad as its friends in this case would make it.

The next consideration is, that it is not necessary that the claim should be made by virtue of legal process. The owner or his agent may arrest the fugitive _with or without process._ The offence is equally committed, and the penalty is the same, whether the rescue is made from the owner without process, or from the officer having process. This fact, with the fact that there is a general statute relating to the offence of obstructing judicial processes, shows that this statute a.s.sumes the facts of property and escape to be true, and applies only to cases in which they shall prove to be true.

If this is not so, what is the result? If a man claims another, without process, by putting his hand on his shoulder, though the man may be as free as you or I, if he resists, or his friends aid him in resisting, the offence is committed. A man claimed as a Fugitive Slave, has been rescued or aided in his escape. You cannot refuse to deliver up a colored boy or girl born in your house, of free parents, to any man who knocks at your door and claims the child, with or without a warrant, without incurring the penalties of this act. This monstrous construction can never be admitted. I beseech the Commissioner to reconsider his intimated opinion on this point, and to hold the Government to preliminary proof, in the outset, that the person rescued was a slave by the law of Virginia, was the slave of the man who claimed him, and was a fugitive from that state of Slavery.

What evidence has there been of any of these facts? There has been no evidence offered that the prisoner was a slave by the law of Virginia!--There has been no evidence offered that he was the slave of Mr. Debree! There has been no evidence offered that he was a fugitive from a state of slavery! Mr. Riley's return upon the warrant, stating that he had arrested "the within named Shadrach," was admitted as evidence. I solemnly protested against the reception of the return as evidence in a criminal proceeding between other parties; but it was received, and for a while held to be conclusive. But, in answer to my question, Mr. Riley replied that he did not know the man he arrested to be the man named in the warrant. And how could he know it? This nullified the return, and the government had no evidence. The District Attorney saw this, and rising in his seat, in a threatening tone, said to Mr. Riley, "I warn you, sir, not to give that testimony!" The testimony was true, and it was admitted by the court. Why was Mr. Riley warned? He was warned for private reasons. It was an official warning, by the agent of the Executive to one of its servants.

_Mr. Lunt_--I deny that it was a private warning. It was public, and for proper reasons.

_Mr. Dana_--It was for private, or secret reasons, not given, not apparent,--some political or governmental terror, known only to the parties. There is no escape from this. The bar saw it. The audience saw it. It is graven with a pen of iron, and laid up in the rock forever!

All evidence of ident.i.ty having failed, the government is driven to its last shift. Col. Thomas is called in, and he testifies that the agent of Mr. Debree said to him, in the Court-room, when the prisoner was brought in, "That is my boy!" This is hearsay evidence upon hearsay evidence. It is monstrous! Yet on this slender thread of illegal testimony, hung all the evidence of the facts of ident.i.ty, slavery and escape. If it is enough to prove that the man rescued was the man in custody, and upon whom the Court was sitting in fact, no one denies it. But if it be necessary to show that the man in custody was the man named in the warrant, or that he was a slave, and a fugitive slave, there has been no competent evidence of any of those facts, and no evidence at all but of one of them.

This man was not rescued from the Court. The Court had adjourned. The Marshal had chosen to make the Court-room a slave jail. The offence would have been the same in the eye of the law, if he had been rescued from the hands of the agent having no warrant, in the streets, or in a railroad car.

I have nothing more to submit to the Court on the subject of the law applicable to this case. I will now call your Honor's attention to the facts in proof.

To avoid repet.i.tion and confusion, I will call your Honor's attention to single points.

1. Mr. Davis was counsel in the case, and acted as such. Mr. Morton, who knew Shadrach, and to whom Shadrach looked for advice, recommended Mr.

Davis to him as counsel. Mr. Riley testifies that Shadrach twice pointed out Mr. Davis to him as one of his counsel, when officially inquired of by Mr. Riley. Mr. King and Mr. List, counsellors of this court, testify that Mr. Davis sat with, consulted with and conversed with the counsel who addressed the court, made a prolonged and careful examination of the papers, and was the first who raised the doubt of their sufficiency. Mr.

Sawin, an officer, says he acted as counsel. It is proved that he went into the court room for the purpose of acting as counsel, and did not leave the room or the bar at all (the government will admit, not for more than a minute or two) until the last moment. What other evidence can there be of counsel's authority? It is seldom if ever in writing, but is proved by acts and recognitions. After such evidence of the acts and recognitions of a hasty and troubled forenoon, including the testimony of two of his own officers, I was amazed at the pertinacity of the prosecuting officer in calling Mr. Curtis to prove that Mr. Davis was not counsel. But Mr. Curtis admitted that he knew nothing of the relations between Shadrach and Mr. Davis, that there are often counsel who do not address the court, and that Mr. Davis might have been of such counsel, for aught he knew. And most of the work of counsel was done after Mr. Curtis left.

I think your Honor will find no difficulty in believing that Mr. Davis acted as counsel for Shadrach, and was in attendance for that purpose.

2. To connect Mr. Davis with the rescue, the Government has found it necessary to contend that he left the court room and returned, shortly before the rescue took place. The only witness to this is Prescott; and how does he stand? Prescott was in the entry before the rescue took place, he heard it debated, he saw it through, he gave no notice to any one, but evidently, from the testimony of Hanscom, he sympathized with the rescuers, and expressed his sympathy in a very unguarded manner for a man who was present, in the midst. All that day and the next, with the vanity of a youth who has been the fortunate spectator of the great event of the day, a fire, a hanging, or a murder, he vaunts his connection and sympathy with the rescue. On the third day come the arrests. He finds the Government has learned that he was present. Six months in jail and a thousand dollars fine, is no trifle to a mechanic's apprentice. He becomes alarmed, and offers himself as State's evidence, and becomes a swift, a terrified, and a blinded witness for the Government. He says he was standing in the entry by the recess that leads to the east door and the water-closet. While there, he saw a gentleman come along the entry and go past him into the recess, and he thinks through the east door into the court room. If this was Mr. Davis, he must have gone through that door, for he was in the room and left it again a minute after. This gentleman he is sure was Mr. Davis, although he did not then know him by name and had only seen him once. Nor was there anything then to call his attention to a casual pa.s.ser by.

Now, may it please your Honor, how long and when was Prescott at that post? According to his own testimony, about two minutes before the rescue began, and as soon as he saw the attempt was serious, he left that place for the stairs. Mr. Davis, then, must have entered the east door one or two minutes before he went out of the west door. Now, Mr.

Warren, the Deputy Marshal, testifies that he pa.s.sed through the entry into this closet, just about two minutes before the rescue, and remembers seeing a young white man standing at the corner. To avoid the effect of this evidence, Prescott is recalled and says he remembers also to have seen a man come out at the east door and go into the closet, at this moment. But here the witness made a mistake. He thought that Mr.

Warren went through the east door, but Mr. Warren says that he came along the entry, and had not been in or out of that door. What then is the predicament in which Prescott has involved himself? Three different men must have gone into that recess in the short s.p.a.ce of two minutes; two of them at least, must have been in the closet at the same minute; and the east door must have been opened three times upon a knock from without.

Against this evident mistake or wilful perversion, what is the evidence?

Mr. Riley and Mr. Warren both say that the east door was fastened on the inside, with strict orders not to have it opened at all; and so strict were they, that they themselves went and came by the west door. No one can be found who opened that door or saw it opened, or saw Mr. Davis go in or out at it, and it is next the Marshal's desk, and in plain sight of every one. No one could come in at it, without knocking and having it opened from within. During the half hour before the rescue, there was no one in the room but the prisoner, the officers and the counsel. The doors were both in plain sight, the east door locked, and at the west door two officers, between whom every person must pa.s.s. Both these officers testify that Mr. Davis did not go out or in to their knowledge.

Byrnes, Neale and Sawin, the other officers, did not see him go, and think he did not leave the room. Mr. Riley is confident he did not leave the room. Mr. Wright found Mr. Davis in the room, half an hour before the rescue, and is sure he did not leave. Not a man in the court room saw him go or come, or believes that he did so. If Prescott's conjecture is true, Mr. Davis must have gone out past the officers at the west door, returned to the east door, knocked and been admitted by another officer,--beside the inconsistencies about the men in the closet.

We might well ask, what if this were Mr. Davis? What does it prove? He spoke to no one, except a "good day" to one man, and took no notice of the crowd at the door. But I will not argue this supposition, for it is not true. It was not Mr. Davis. He did not leave the room until he went out for the last time.

Something has been attempted to be made out of Mr. Davis' conversation with the officers in the room. A man engaged in a plot for a rescue, would not be likely to expose himself to suspicion by violent remarks to officers. But take the evidence as it stands. At the request of Mr.

List, he asked Sawin, whom he knew, if the man next Shadrach was a Southern man. This was proper. The counsel did not wish a man to sit next the prisoner, who might converse with him for the purpose of getting admissions from him. They feared he might be an agent of the claimant. He said privately to Mr. Sawin, whom he had known intimately for years, that this was a dirty business he was engaged in. He did not know Mr. Sawin to be an officer of the Court. He knew him as a city constable; and supposed he had let himself out by the day as a catcher of fugitive slaves. I know something of the feelings of Southern gentlemen as to this cla.s.s of men. They are necessary evils. They use them as we use spies, informers and deserters in war; they use them, but they despise them. I remember being in one of the chief cities of Virginia, and pa.s.sing a large, handsome house, when my friend said to me, "There lives perhaps the richest man in our town, but he visits nowhere, n.o.body notices him. He is looked upon with aversion. He is a dealer in slaves! He keeps a slave-market, and pursues fugitives!" They look upon this occupation with as much contempt, aye, with more contempt than we seem to now; for there is a higher spirit in their aristocracy, than in the ruling cla.s.ses of our Northern cities at this moment. This was the feeling of Mr. Davis, when he spoke to Sawin. This is the feeling of every man of honor. He wished a man whom he knew, to be engaged in a more respectable business. I have said the same. I saw a man I knew in Court the other day, letting himself by the dollar a day, in slave catching. I begged him, if he could find any honest mode of getting a living, to abandon it.

_The Commissioner._ Did you know him to be engaged in his legal duties?

_Mr. Lunt._ A very improper remark!

_Mr. Dana._ I venture to suggest not. The remark was with reference to the future, and not to the present.

_The Commissioner._ I see no distinction between attempting to deter men from executing the law and a.s.sisting in violating it.

_Mr. Dana._ I am sorry I cannot see the impropriety of it. Perhaps I have not made myself clearly understood. Mr. Davis expressed his opinion that the man had better be in better business.

_The Commissioner._ It was equivalent to saying to the officer that the execution of the law was a mean business.

_Mr. Dana._ That I propose to argue.

_The Commissioner._ On that point, the defendant himself intimated in his cross-examination, that the expression was not used as an observation in general. On being asked whether the remark was not said with regard to his business, he replied, yes.

_Mr. Dana._ I did not so understand it. He intended to say this--Mr.

Sawin, you and I are old acquaintances. You are not obliged to do this business. It is mean business. Why do you volunteer in it? This is what I myself have said, and what every high-minded man must feel.

_Mr. Lunt_ here intimated that Mr. Dana might find himself changing places at the bar, and be a defendant instead of counsel, if he advocated and expressed such sentiments.

_Mr. Dana_ simply bowed to the Attorney, and proceeded.

No citizen is bound to an active execution of this law, unless called upon as one of the _posse comitatus_. Did your Honor feel bound to join in the pursuit last Sat.u.r.day, when the mob pa.s.sed you at the corner of Court street? Do you feel bound, of a pleasant evening, to walk about in the neighborhood and see what fugitives you can find and dispose of?

Would any compensation tempt you to do it?

On the subject of the conversation with Byrnes, that was considered, of course, very truculent, on the government's evidence. But when explained by Mr. Minns, what is it? The defendant knows that the cause in which he is engaged, by a strange revulsion of public feeling, is unpopular. It is unprofitable, and whatever is unprofitable is unpopular. It is not genteel, and persons doubtful of their gentility ridicule it. Now Mr.

Davis being engaged in this unpopular cause, Byrnes makes a remark which Mr. Minns thought was intended to irritate Mr. Davis.

He did not hear the first part, but it ended with "killing the negroes."

Mr. Davis felt that it was intended as a taunt to him. He answered him, "Then, on that principle, you ought to have your throats cut." I have no doubt it was a logical conclusion from Mr. Byrnes' premises, and nothing more.

Up to this point, what is the evidence against Mr. Davis? Am I not right in saying, nothing whatever--nothing more than any man would be subject to, who acted as counsel?

The only remaining point is his pa.s.sing out of the door, and his conduct in the entry. On this point there is but one witness against him, and that is Mr. Byrnes, who, unfortunately, holds the office of Deputy Marshal. I shall not go into an examination of the evidence as to the reputation of this man. Twelve good men, known to us all, persons likely to know Byrnes's character, have testified it is and has for years been bad, decidedly bad; and it was not denied by his witness, that the verdict at East Cambridge was rendered on the a.s.sumption of his not being worthy of belief. His own witnesses were chiefly casual acquaintances, or the boon companions of his bowling-alley and billiard-room, the retailers of liquors, men who, like him, live by violating the laws by night, which he lives by enforcing in the day-time.

It is clearly proved that there was no suspicion of a rescue, either in the court room or in the entry, until the instant it took place.

Prescott did not suspect it. Mr. Homer, the highly respectable a.s.sistant clerk of the Munic.i.p.al Court, who saw the whole occurrence from the stairway, did not think it would be any thing serious. Mr. Warren, the Deputy Marshal, pa.s.sed through the group at the door twice, but two or three minutes before the rescue, and suspected nothing. Five Courts were in session, and persons were pa.s.sing up the stairs and through the pa.s.sage-way to the last moment, and suspected nothing. The officers inside suspected nothing. Their defence against negligence is the defence of Mr. Davis. Mr. Davis knew that Mr. Morton expected to purchase the freedom of Shadrach. He had confidence that the doc.u.mentary evidence was fatally defective. He was engaged to attend the consultations on the defence, and on the Habeas Corpus, that afternoon.

He saw that Mr. Curtis was not disposed to hurry matters, or to deny the prisoner full opportunities for defence. And I will do Mr. Curtis the justice to say that I have no doubt it was his object to exhibit this law to us in its most favorable light; to justify its makers as far as possible. Mr. Davis neither knew, nor suspected, nor thought of a rescue at that door. Every witness says he went out of the door in the usual manner, except Hutchins, and when Hutchins thought he should have gone out in full front, instead of side-wise, your Honor well asked how otherwise could he have gone out, with a crowd against the door, and in the pa.s.sage? I see that your Honor thinks nothing of that; although in the more jealous eye of the District Attorney, it is matter of suspicion. To minds so disposed, there is nothing but is proof of guilt.

If Mr. Davis had marched out in full front, it would have been in order to open the door wider, for the conspirators to rush in. Just so in the case of poor Shadrach's coat. Yesterday the District Attorney was certain that Mr. Davis, or some one apprised him of the intended rescue, because he pulled his coat off. Now, when it is proved, by the government's own witnesses, that Shadrach afterwards put his coat on again, I suppose his putting it on will be just as good proof of the same thing.

Mr. Byrnes, thinks he recognized Mr. Davis' voice in the entry, calling out, "Take him out, boys!" But the same cry was uttered several times, and Mr. Homer and Mr. Hutchins, who saw Mr. Davis at the moment, and were outside, say it did not come from him, but from the negroes, and Prescott attributes it to the negroes. Four men were nearer to Mr. Davis than Byrnes was, and all of them exculpate Mr. Davis. And Byrnes is confessedly hard of hearing, and not particularly familiar with Mr.

Davis' voice. Moreover his character for truth and veracity is impeached.