United States vs. Charles G. Davis.
PROCEEDINGS AT THE EXAMINATION
CHARLES G. DAVIS, ESQ.,
CHARGE OF AIDING AND ABETTING IN THE RESCUE OF A FUGITIVE SLAVE.
HELD IN BOSTON, IN FEBRUARY, 1851
BOSTON: WHITE & POTTER, PRINTERS, 4 SPRING LANE. 1851.
The following Report is published at the request of numerous persons who are of opinion that all which is known of the operation of the Fugitive Slave Bill, should be spread before the public. To the legal profession it will be of interest, as developing new points in the construction and application of a Statute, destined to be of great political importance now, and in future history. They will be able to judge of the constructions upon the Statute, and of the law of evidence, as laid down and applied by the Commissioner, and contended for by the representative of the Government. Not the profession alone, but the public, can judge of the temper, and manner, as to parties and witnesses, in which the prosecution was pressed, and the judicial duties performed.
It will be well for every reader to bear in mind that this is the tribunal to which the late Act of Congress gives final jurisdiction in deciding whether a man found a free inhabitant of a free state, shall be exiled, and sent into endless slavery.
The Commissioner tries an issue, on the result of which, all the hopes of a fellow man for the life that is, and that which is to come, are suspended; and his judgment is "conclusive on all other tribunals."[A]
[A: See the Opinion of Attorney General Crittenden.]
It will be well for us, as citizens, to remember, that the attempt is making to establish this act, passed by the vote of less than half of the Representatives of the people, as the unalterable law of the country; to treat as treason and disaffection to government, all attempts to rouse the public to efforts for its repeal; and, by unprecedented coalitions, that might almost be called conspiracies, of public men, to destroy the character and means of influence of all who lend their aid in these efforts. Even a public discussion of the subject, is cause for suspicion and inquiry.
We would ask every reader, on rising from the examination of this trial, taken in connexion with the President's Proclamation and Message, the late debate in the Senate, and the recent letters and speeches of leading men of both parties, to say, for himself, whether these are not times, not only of danger to the liberty of colored men, but of serious apprehension for our independence and dignity as men, and our rights as citizens.
On the 13th of February, A.D. 1851, one John Caphart, of Norfolk, Va., came to Boston, in pursuit of one Shadrach, alleged to be a fugitive slave and the property of John Debree, a purser in the navy, and attended by Seth J. Thomas, Esq., as counsel, made his complaint, as agent and attorney of the said owner, before George T. Curtis, Esq., U. S. Commissioner. On the evening of the 14th, the following warrant was placed in the hands of special marshal Sawin, and served, Shadrach offering no resistance, about half-past 11 on Saturday forenoon, the 15th, at the Cornhill Coffee House, where Shadrach had been employed for some months as a waiter:—
UNITED STATES OF AMERICA.
Massachusetts District, ss.
To the Marshal of our District of Massachusetts, or either of his deputies.
These are, in the name of the President of the United States of America, to command you, the said marshal or deputies, and each of you, forthwith to apprehend one Shadrach, now commorant in Boston, in said district, a colored person, who is alleged to be a fugitive from service or labor, and who has escaped from service or labor in the state of Virginia, (if he may be found in your precinct), and have him forthwith before me, one of the commissioners of the circuit court of the United States for the Massachusetts district, at the court house in Boston aforesaid, then and there to answer to the complaint of John Caphart, attorney of John De Bree, of Norfolk, in the state of Virginia, alleging under oath, that the said Shadrach owes service or labor to the said De Bree, in the said state of Virginia, and while held to service there under the laws of the said state of Virginia, escaped into the state of Massachusetts aforesaid, and praying for the restoration of the said Shadrach to the said De Bree, and then and there before me to be dealt with according to law.
Hereof fail not, and make due return of this with your doings thereon, before me.
Witness my hand and seal at Boston, in the said district, on this fourteenth day of February, in the year of our Lord, one thousand eight hundred and fifty one.
(Signed) GEO. T. CURTIS,
Commissioner of the Circuit Court of the United States, for Massachusetts District.
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The following return was endorsed upon the warrant:—
BOSTON, February 15th, 1851.
In obedience to the warrant to me directed, I have this day arrested the within named Shadrach, and now have him before the commissioner within named.
P. RILEY, U. S. Deputy Marshal.
A hearing was had in the U. S. court room, and several papers, being affidavits and certificates of a record, were exhibited by the complainant's counsel, as the evidence under the 10th section of the Fugitive Slave Law so called, that Shadrach was a slave in Virginia, that he was owned by said De Bree, and that he escaped on the 3d of May, 1850. At the request of counsel these papers were read and admitted as evidence in the case, subject to such objections as might be made to their admissibility as legal evidence thereafter.
There were present as counsel for Shadrach, S. E. Sewall, Ellis G. Loring, Charles G. Davis, and Charles List, and as they had not had an opportunity to examine the documents produced by the complainant, and were therefore not satisfied of their sufficiency, they asked for a postponement, to February 18th, and the commissioner adjourned the further hearing of the matter until 10 o'clock, on Tuesday, February 18th, and passed the following order:—
United States of America, District of Massachusetts, February 15th, 1851.—And now the hearing of this case being adjourned to Tuesday the eighteenth day of February instant, at ten o'clock in the forenoon, the said deputy marshal, who has made return of this warrant, is hereby ordered to retain the said Shadrach in his custody, and have him before me at the time last mentioned, at the court house in Boston, for the further hearing of the complaint on which this warrant is issued.
GEO. T. CURTIS, Commissioner.
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On the following Tuesday, P. Riley, Esq., Deputy U. S. Marshal, appeared before the Commissioner, George T. Curtis, Esq., and offered the following return which was annexed to the above order.
BOSTON, Tuesday, February 18th, 1851.
UNITED STATES OF AMERICA.
Massachusetts District, ss.
I hereby certify, in pursuance of law and the foregoing order, the said "Shadrach" named in the foregoing warrant and order, was being detained in my custody in the Court Room of the United States, in the Court House, in said Boston, when the door of said room, which was being used as a prison, was forced open by a mob, and the said "Shadrach" forcibly rescued from my custody. I also annex hereto, and make part of my return an original [printed] deposition, of the circumstances attending the arrest and rescue, and have not been able to retake said Shadrach, and cannot now have him before said Commissioner for reasons above stated.
P. RILEY, U. S. Deputy Marshal.
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COMMONWEALTH OF MASSACHUSETTS.
I, Patrick Riley, of Boston, in the said county, counsellor at law, having been duly sworn, depose and say, that I am, and have been, for fourteen years past, the principal deputy of the United States Marshal for the District of Massachusetts.
That on Saturday morning, February 15th, 1851, about twenty minutes before 8 o'clock, A.M., I was called upon at my residence, by Frederick Warren, one of the U. S. deputy marshals, who informed me that there was a negro man, an alleged fugitive, to be arrested at 8 o'clock, who was supposed to be at Taft's Cornhill Coffee House, near the Court House, and desired to know where the negro should be put in case he should be arrested before I reached the office; that I told him to place him in the United States Court Room,—and that I would come to the office immediately,—that I came down almost immediately to the office, where I arrived shortly after 8 o'clock, and there found Mr. Warren, who informed me that the negro was unknown to Mr. Sawin, deputy marshal, to whom the warrant was handed on the night previous, as I have been informed, though no notice of it had been given to any occupant of the marshal's office,—and that the negro was unknown to any one of the marshal's deputies or assistants,—that Mr. Warren informed me that Mr. Sawin had gone to find the man, who by previous arrangement was to point out the negro, and who had not shown himself as agreed; that I remained in the court giving directions, and making preparations to secure the negro when arrested, and awaiting the return of Mr. Sawin; that I saw him after ten o'clock, and he informed me that he had seen the parties in interest, and that it had been arranged not to attempt the arrest until 11 o'clock,—that I told him that it should not be delayed one moment, and directed him to notify the man who was to point him out to come instantly; that he left for that purpose, and at ten minutes before 11 returned, and said that the parties were about Taft's Coffee House, and that the men engaged were also in readiness in that neighborhood; that I went immediately with Mr. Warren, Mr. John H. Riley, and other deputies to the said coffee-house, and there found all our men, nine in number, stationed in and about the place,—that there were several negroes in and about the house, and I inquired for the man who was to point out the alleged fugitive, and was informed that he had not arrived; that Mr. Warren and myself went immediately into the dining hall at the coffee-house, and to avoid suspicion, ordered some coffee, and were waited upon by a negro, who subsequently proved to be the alleged fugitive; that, not hearing any thing from our assistants, we took our coffee and rose to go out and learn why we had not heard from them; that the negro went before us to the bar-room, with the money to pay for the coffee, and in the passage between the bar-room and hall, Mr. Sawin and Mr. Byrnes came up, and each took the negro by an arm, and walked him out of the back passage way through a building between the coffee-house and the square beside the court house to the court-room as by me directed.
That I immediately, while he was entering the court house, went to the office of the city marshal, in the city hall, in the same square with the court house, and there saw Mr. Francis Tukey, the city marshal, told him what had been done, and stated, that as there would probably be a great crowd, his presence with the police would be needed to preserve order, and keep the peace in and about the court house, which is owned by the city, and in which all the courts of the commonwealth for Suffolk county are held. That Mr. Tukey stated that it should be attended to,—that I told him that I should notify the mayor instantly, and proceeded up stairs to the mayor's office, where I found Hon. John P. Bigelow, mayor of the city, and made the same communication and request to him, which I had made to Mr. Tukey. To which the mayor said,—"Mr. Riley, I am sorry for it." That I then left the office, at which time it was just half past 11 o'clock.
That I went immediately to the court-house, and found the negro in the United States court room, with the officers, and found all the doors closed, and was admitted by the usual inside entrance,—that George T. Curtis, Esq., the United States commissioner, was called, and came, and the claimant's counsel were sent for,—that all the doors were kept closed excepting the usual entrance, which was kept guarded by officers,—that the commissioner informed the fugitive, who was named "Shadrach" in the warrant, of the character of the business, and asked him if he wanted counsel,—to which he said that he did, and that his friends had gone for counsel,—that while waiting for the counsel to come, the room began to be filled with negroes and whites,—that the counsel for the prisoner appeared, and claimed a delay, to give them opportunity to consult with their client, pending which I desired Mr. Warren, the deputy marshal, to go to the navy yard at Charlestown, about two miles distant, and ask Commodore Downes whether, should a delay or adjournment take place, the navy yard might be used as a place of detention, the United States not being permitted by the law of the state to use the jails, and having none of their own. That the examination proceeded, and after the reading of certain documents presented by the claimant's attorney, and some discussion, the commissioner decided to grant the delay until Tuesday following the 18th inst. That the counsel for the prisoner asked of the commissioner if they might not remain and hold consultation with their client, and examine with him the papers presented, to which the commissioner assented,—that the court room was ordered to be cleared, and was cleared of all save some fifteen officers, being all the reliable men whom we had been able to collect, the counsel, and some newspaper reporters,—that Mr. Warren, at this time, which was about half past 12, returned from the navy yard, and informed me that he had seen Commodore Downes, who said he could not grant my request,—that I despatched what officers I could spare to ask such of their friends to remain as would assist, and to procure all the additional force possible, intending to use the court house as a place of detention. That Mr. Curtis, also left. That crowds of negroes and others began to gather about the court room, and in the passage ways leading to the court house,—that I went to one of the messengers who had charge of the building, and desired him to have all the court house doors closed as soon as possible, which were not necessary for use.
That, at or before one o'clock, Mr. Ebenezer Noyes, the messenger of the U. S. court, was despatched to the city marshal, whom he informed that the U. S. marshal wanted every man that he could send to keep the peace in and about the court house, to which the city marshal replied, that he had no men in, but would send them over as they came in. That at about two o'clock, all the counsel had left, except Mr. Charles G. Davis, and a reporter, who I learned was Elizur Wright, one of the editors of the Commonwealth newspaper; that as the door was opened for them to leave, which opened outwardly, the negroes without, who had filled the passage way on the outside, took hold of the edges of the door as it opened, and then a struggle ensued between the holders of the door within, and those without. That Mr. Warren the deputy, immediately ran to the city marshal's office, but not finding him in, went to the mayor's office, and was informed, that the mayor had gone to dinner. That he then stated to those in his office that there was a mob in and about the court house, and called upon them to send men to help disperse it. That he then returned to the city marshal's office, found him in his private room, informed him of the trouble in the court house, and asked him to send all the men he could furnish, and whether he (Mr. Warren) could aid him in getting his men, to which he said that Mr. Warren could not assist him in the matter.
That, meanwhile, the struggle at the door continued for some minutes, and the crowd of negroes finally succeeded in forcing the door wide open, rushed in in great numbers, overpowered all the officers, surrounded the negro, and he was forced by them through the door, down the stairs, and out of the side door of the court house, and thence through the streets to the section where most of the negroes of the city reside,—that officers were despatched in pursuit, but have not succeeded in finding his present abode.
That from the time of the first notice to the mayor and city marshal, immediately after the arrest, as heretofore stated, to the giving of this deposition, neither the mayor nor the city marshal has appeared, nor has a single officer under their direction appeared, or aided in attempting to disperse the mob, or in keeping the peace; and that, in my opinion, it was the predetermined purpose of both not to do their duty in keeping the peace in and about their court house; for the city marshal, when requested by Henry S. Hallett, Esq., to disperse a similar mob, which had collected about the office of his father, a U. S. commissioner, during the excitement in the "Crafts" case, said that he had orders not to meddle in the matter, as I am informed by the said Hallett, and that the city marshal gave a similar answer to Watson Freeman, Esq., who asked him at about the same time why he did not disperse the mob, as I am informed by the said Freeman.
That Charles Devens, Jr., Esq., the U. S. marshal for this district, was at the time of the arrest, returning from Washington, where he had gone on imperative official business,—that it is proper to state here that neither the marshal nor his deputy is authorized by law to employ a permanent force sufficient to resist a mob; and that he has no authority to call to his aid the troops of the state or of the United States.
P. RILEY, U. S. Deputy Marshal, Massachusetts District.
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Commonwealth of Massachusetts, Suffolk County, February 17, 1851.—Then personally appeared the above named Patrick Riley, and duly swore that the foregoing deposition by him subscribed is true, as to facts stated to be in his personal knowledge,—and that he believes that the statements therein given as made to him by others are true.
HORATIO WOODMAN, Justice of the Peace.
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After the reading of the above return, Samuel E. Sewall, Esq., protested against placing the whole of the last named affidavit on file, as a part of the return, inasmuch as it purported to narrate facts which took place previous to the last hearing, and the order thereon.
The Commissioner inquired of Mr. Sewall, for whom he appeared. Answer, "For the alleged fugitive, called Shadrach."
The Commissioner,—"You cannot appear for a person who has avoided process."
Mr. Sewall. "The return in question shows, that he was forcibly removed. He is claimed as property. There is no evidence before the Commissioner that he has voluntarily avoided. So we are ready to proceed if the Commissioner chooses."
The Commissioner. "You cannot address the Court, Sir. It is well settled, that a person who avoids process, cannot appear by attorney. The Marshal may make such a return as he sees fit. I cannot interfere. But I will say that the return seems to me proper, and it may be filed."
Mr. Curtis declared the proceedings suspended, and ordered the Marshal to proclaim the Court adjourned indefinitely.
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On Monday the 17th of February, 1851, Charles G. Davis, Esq., of Boston, an attorney, and counsellor at law, was arrested upon a warrant issued by B. F. Hallett, Esq., a U. S. Commissioner, upon complaints made to the District Attorney, a copy of which is subjoined. Mr. Davis gave bail for his appearance.
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Thursday morning, February 20, 1851. U. S. Circuit Court Room. Before B. F. Hallett, U. S. Commissioner.
United States, vs. Charles G. Davis.
George Lunt, Esq., District Attorney, appeared for the United States.
Richard H. Dana, Jr., and Charles G. Davis, Esquires., for the defence.
Mr. Lunt moved that the original complaint be amended by the addition of another count. No objection was made, and the following complaint, as amended, was then read:—
UNITED STATES OF AMERICA.
Massachusetts District, ss.
To B. F. Hallett, Esq., Commissioner of the Circuit Court of the United States, for the District of Massachusetts.
George Lunt, Attorney of the United States, for the District of Massachusetts, in behalf of said United States, on oath, complains, and informs your Honor, that on the fifteenth day of February, in the year of our Lord one thousand eight hundred and fifty-one, at Boston, in said District, one Charles G. Davis, of said Boston, Esq., with force and arms, did aid, abet, and assist one Shadrach, otherwise called Frederic, otherwise called Frederic Wilkins, the same being then and there a person owing service or labor, and a fugitive from service or labor, to escape from one John Caphart, who was then and there, the agent of one John De Bree, claimant of said person, owing service or labor, and a fugitive from service or labor as aforesaid; against the peace and dignity of the said United States, and contrary to the form of the Statute in such case made and provided. Wherefore, the said complainant complains that the said Charles G. Davis may be apprehended, and held to answer to this complaint, and further dealt with, relative to the same, according to law. And furthermore the said complainant prays that Frederic D. Byrnes, Simpson Clark, Charles Sawin, Patrick Riley, John H. Riley, John Caphart, may be duly summoned to appear and give evidence relative to the subject matter of the complaint.
(Signed) GEORGE LUNT, U. S. Attorney.
BOSTON, February 17th, 1851.
UNITED STATES OF AMERICA.
Massachusetts District, ss.
Then the above named George Lunt, personally appeared, and made oath to the truth of the above complaint, by him subscribed.
Before me, (Signed) B. F. HALLETT, Commissioner of the U. S. Circuit Court, for Massachusetts District.
Amended Count. Also for that on the fifteenth day of February, in the year of our Lord one thousand eight hundred and fifty-one, at Boston, in said District, one Charles G. Davis, with force and arms, did aid, abet and assist one Shadrach, otherwise called Frederic, otherwise called Frederic Wilkins, the same being then and there a person owing service or labor to escape from Charles Devens, junior, Marshal of the United States, for said District of Massachusetts, who was then and there, a person legally authorized to arrest said fugitive, and said fugitive being then and there arrested pursuant to the authority given and declared in a certain statute of the United States, approved on the eighteenth day of September, in the year of our Lord one thousand eight hundred and fifty.
Mr. Davis thereupon repeated his plea of not guilty.
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[Note. Upon the previous examination of Mr. Wright, Mr. Lunt for the United States, had opened his case by stating that the complaint was based upon the 7th section of the act of September 18, 1850, (See Appendix), making it punishable by fine and imprisonment, to aid, abet, or assist, in the escape of a fugitive slave; and he should therefore call witnesses to show that the Shadrach named in the complaint against Wright, was a fugitive, as therein alleged. (See complaint). Mr. Lunt proceeded to call several witnesses, among whom Seth J. Thomas, and John Caphart, were named. Mr. Caphart did not appear.
Commissioner Hallett called the attention of the District Attorney to the Statute, and said he was clearly of the opinion, and should rule, that, if it should appear that Shadrach was an alleged fugitive, an attempt to rescue him would be an offence under the act.
Mr. Sewall, counsel for Mr. Wright, protested against the ruling.
Colonel Seth J. Thomas was called to the stand. Mr. Thomas was called upon to read the Norfolk documents, before exhibited to Commissioner Curtis, tending to show that Shadrach was a fugitive.
Mr. Sewall objected, that the documents could not be used as evidence in this case. They could only be used, if at all, upon a complaint, under the act, for the arrest and delivery of an alleged fugitive. They had not yet been received as evidence in such a case; they were only admitted subject to future objections, and the proceedings had been indefinitely postponed. There was no provision of the statute, and no principle of law which would make them evidence in criminal proceedings against a stranger, a free man, charged with making a rescue.
The Commissioner stated that the papers should go in as papers having a tendency to show that Shadrach was an alleged fugitive].
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THE GOVERNMENT THEN OPENED ITS TESTIMONY.
Patrick Riley. Am a Deputy U. S. Marshal—was before Mr. G. T. Curtis on Saturday, Feb. 15th; had an alleged fugitive called Shadrach, a black man, under arrest by warrant from Mr. Curtis—came to this room about 11-1/2 o'clock, A.M.; remained till about 2; about 2 o'clock I was standing near Shadrach at end of reporter's table inside of bar—he was consulting with his counsel; I was by the table when I heard a cry that they were rushing in—the cry came from the officers. Mr. Elizur Wright and Mr. Davis were the only strangers here, except Mr. Grimes, an alleged colored preacher. I immediately rushed to the door—some officers were between the green door and the outer door; I put my shoulder to green door—just then it cracked, the perpendicular piece was broken. I pushed as hard as I could with one of my feet against the judges' desk; I was there some three minutes; some one or two officers were outside pulling green door toward them. The crowd rushed in, surrounded the prisoner and left. I should think thirty or forty came into the room—Shadrach left with the crowd—there was noise and tumult outside and inside—"tear him away," I heard, and such expressions; cheers as he went out; before he went out I should think from two or three hundred. I saw no alteration in conduct of Shadrach, before the adjournment of court; saw him take his coat off and loosen his neckcloth—was satisfied he had no weapon, and was anxious none should be given to him. Mr. Davis was here as one of the counsel. I asked Shadrach if he was one of his counsel, and he said, yes, he had four or five counsel. I asked Mr. Sewall who were counsel, and some one said we four; S. Sewall, E. G. Loring, C. G. Davis and Charles List, were the counsel. Mr. King remained, stating something about his being counsel, and also Mr. Wells, his partner. (I told Mr. Wells to leave and Mr. King said he was his partner, and I let him remain.) Mr. Davis was here at the opening of Court, and Shadrach told me he was his counsel; he remained at the table in consultation, from adjournment to about the time of the rescue; do not know when he went out; do not remember his leaving the court-room, and I was here all the time, with this exception; I passed out the door a moment to give directions—I spoke to the messenger to close court house doors which he did not wish to use. When I went out, counsel and officers and reporters were here; that was before Mr. Wright came in. Four courts, C. C. Pleas, Supreme, Municipal and Police had been in session that morning. About 2, directed Mr. Davis and Mr. Wright to go out. I remained by prisoner with one or two officers at door, and between me and the door; did not see Davis after he passed the door; I saw him pass the inner door; Mr. Wright remained in; I remained by the prisoner. When I rushed to the door, I do not remember seeing Mr. Davis; I heard Mr. Davis say nothing offensive in the court room. [The original warrant for the arrest of Shadrach is here shown.] This is the warrant, order and return, etc., addressed to the Marshal or either of his Deputies; I arrested the man mentioned in this warrant, and the same man escaped.
To the Commissioner. I did not come into court room with Shadrach, but I knew him as the man arrested. The second return, as to the escape, refers to the same party, Shadrach.
Cross examination by Mr. Davis. I saw you examining papers produced before the Commissioner; saw you at table when Mr. Sewall called your name as counsel; you were standing; Mr. Sewall was talking to prisoner, and called you—this was immediately after order was given to clear the room.
To the Commissioner. Commissioner Curtis ordered prisoner be kept till Tuesday morning safely; I carried it out in reference to prisoner.
Cross examination resumed. I walked to end of passage to speak to Mr. Merrill; did not communicate to you a crowd was at the door. It is usual on exciting occasions to have officers outside when the door is open; sometimes have an officer outside. In other courts it is very common to have officers outside; there are fewer trials with us, and the room is hired by United States; we have no right to obstruct the entry. [Mr. Dexter was in room between adjournment and rescue.] Don't know but I stated yesterday there were officers outside; perhaps that Stratton was outside helping against the negroes. My printed return was made up of what I supposed to be the truth. I meant in that to say I heard a cry, and supposed there was no interpretation, except that the negroes broke the door open—saw the officers—communicated with them afterward, and published the affidavit as a general and true account of all that was material. Immediately after the rescue I ordered officers to go to see where the man was; I remained. I confess I was under great excitement; I had no conversation with Byrnes, Sawin or Clark, before the affidavit was prepared and sworn to. I was enquired of where the prisoner would be kept—I did not tell, but said if consultation was wanted we could have it in lobby. You told me, and Mr. List told me you were waiting for Mr. Dana. I told List that Mr. Dana asked me for a copy of the warrant before two o'clock—this was some few minutes before the rescue. Mr. List had just left with my copy of warrant, and had not returned at the time of the rescue,—did not know the use to be made of it. My impression is, that Mr. Sewall, yourself and Mr. Wright, were moving out together, but that Mr. Sewall got out before you did. There were three persons to leave, and I think you were all gradually moving to the door—I had no doubt you could get out safely and without disturbance—can't say you conversed with Mr. Wright or the preacher—there was some general conversation—saw you and Mr. Wright have no private conversation. I told Mr. Wright he might remain if prisoner assented. Perhaps the prisoner would like his counsel—Shadrach assented. I let Mr. Wright go up and speak to prisoner; I kept my eye on Mr. Wright when he spoke to the prisoner—he went up and took hold of his hand—Mr. Loring left the room sometime before. When Mr. Wright came in, I was surprised. You said Grimes better not come in—counsel asked me if a friend might remain with prisoner during his arrest—Messrs. List, Sewall and Davis were present—can't swear who asked me.
To the Commissioner. Some colored friend I supposed—can't swear it was Davis asked it.
Mr. Dana. Do you know the person you arrested, was the person named in the warrant?
Answer. The person rescued was the person arrested under the warrant, but cannot say he was the person named in the warrant.
The Commissioner. Do you contradict your return? The return is conclusive.
Mr. Lunt. Mr. Riley, do you mean to contradict your return! I warn you, Sir!
Mr. Dana. He has contradicted it. Mr. Riley, you didn't know that the person you arrested was the man named in the original warrant and complaint, as the slave of Debree?
Mr. Lunt. I warn you, Mr. Riley, not to give that testimony! I warn you, Sir!
The Commissioner. The return of the officer is conclusive.
Mr. Dana. Does the Commissioner mean to rule that a man may be hung in a criminal case, on the return of an officer in another, and that a civil case? This case goes further. Here the very man who made the return is on the stand. Cannot we show by him that a part of this return is matter of form, and that he does not know whether it is true or not?
The Commissioner. I think, Sir, the return of the officer is conclusive in all these proceedings.
Mr. Dana. But the fact is already in—and the return is nullified. The objection is too late.
The Commissioner. If he has answered, it may go in, de bene esse.
Mr. Lunt. Does the Commissioner mean to rule in that testimony?
The Commissioner. I receive it de bene esse; to give such weight to it as I shall think proper.
Mr. Dana. Mr. Riley, do you know whether the man you arrested was the man named in the original warrant?
Mr. Riley. Hardly a man is arrested known to the officer. The officer is responsible for mistakes. I don't know that the man arrested was the man named in the warrant.
Did not apprehend a rescue or an attempt when Davis left. He left at my request at the time he left. He did not leave the room from all I saw, until his final departure—don't recollect seeing him outside the bar, nor conversing privately with any person beside counsel. He is known to me as a counsellor practising law in Circuit Court.
To District Attorney. There might have been fifteen persons in court room when I left. My attention was not directed to Davis particularly. He might have been absent without my knowledge.
To Mr. Dana. I kept my eye on the door after the room was cleared—ordered that no one should be admitted.
Charles Sawin, Dep. Marsh. Soon after Mr. Davis came in and sat down, he rose, coming towards me, and asked who Mr. Clark was, whether he was a southern man? I said, "No, that he was a citizen of Boston, and had been for some years." I asked Mr. Davis what there was in the wind, and he replied—"Not anything that I know of." He then added, "This is a damned dirty piece of business." This was before the proceedings before the Commissioner had closed. Afterwards when the proceedings had ended, Mr. Byrnes was standing within the rail and I was outside, Mr. Davis said, "Well, you ought all to have your throats cut." The attorneys were present. In all there were about twenty persons present. It was after the order had been given to clear the room. I made no reply to remark. I thought it was uncalled for. I missed Mr. Wright and Mr. Davis about the same time. I did not see him go out. I was near the prisoner. I saw a tallish man whisper in the prisoner's ear during the hearing. The prisoner then took off his coat, and rolled up his shirt sleeves, and adjust his neckerchief and look kind of fierce. It was a white man that whispered to the prisoner. Mr. Davis might have been gone a minute before the rush was made to break in.
Cross examined by Mr. Davis. I don't know that your remark was, "this is damned dirty business for you to be in." My impression is that you did not qualify it. I did not consider it mean business. I thought it was legal business. I don't know that what you had said was the conclusion of a conversation that you had been having with Mr. Byrnes, and I don't recollect that the remark was, "Well, then, you ought to have your throats cut." Mr. Byrnes was near, and so were others of the counsel with you. There was a Mr. Morris, or Morrison, with them.
Mr. Davis. What Mr. Morris?
Sawin. That one! (pointing to Mr. Morris, who was in the bar) The little darkey lawyer!
The Commissioner. Mr. Morris is a member of the bar, and entitled to be spoken of with respect, as much as the white lawyers who were engaged in the case.
Sawin. I meant no disrespect. I only used the expression for the purpose of designating the man.
Mr. Dean. The remark seems to amuse the district attorney.
Mr. Lunt. I cannot always control my muscles.
Sawin. (To Mr. Davis.) Have known you four or five years—never told you I was Deputy Marshal. Have given you business—considered the remark not unfriendly—didn't think much of it. The man was arrested in his apron and shirt sleeves—coat was afterwards brought in—don't know that he put his coat on again before the rescue. Heard Mr. Riley say to him, "Now, pretty soon, we'll have dinner." This was about the time you went out—thought you were counsel all the time.
Fred. D. Byrnes. Am a Deputy Marshal. Saw Davis in room on Saturday sometime while proceedings were going on. The first thing I heard Mr. Davis say, was "Damn mean business." The prisoner was in the bar. Mr. Sawin was on one side of the prisoner, and Mr. Clark on the other. Mr. Davis was within two feet of the prisoner, and I was near Mr. Davis. This was before the adjournment. Afterwards, near the rail on the left of the room, Mr. Davis came along and put his hand on my shoulder, and said—"This is a damned pretty mess," or, "you are a damned pretty set," and "every one of you ought to have your throats cut." After that, and when nearly all the people had left, Mr. Wright and Davis came along, and I said to Mr. Davis, "I always took you for a gentleman until to-day, but I am very sorry to say I can't say it now." He said, "Why?" I repeated his remark about cutting our throats, and he replied—"Well, I say so now." Mr. Davis then went out. I saw nothing out of the way when he went out. After Mr. Wright had passed out, I saw Mr. Davis near the wall on the right of the door, and close to the steps. I heard a voice that I then took to be Mr. Davis's, say—"Take him out, boys—take him out." I did not see his lips move, but I thought it was him who spoke the words, and I think so now. I am acquainted with Mr. Davis, and knew it to be Mr. Davis's voice, and no other one's voice. His shoulder was resting, or leaning against the wall. I had passed through the baize door with Mr. Wright, so that I could see a person at the corner of the wall at the outer door.
Cross examined. Mr. Hutchins had the charge of the door. I did not notice his position. Did see Mr. Clark's position. I saw nothing different in your going out from others going out. Clark and Hutchins were in front of me. I do not think the baize door closed on you before Mr. Wright came. The shout was after the pulling of the door commenced. Before that there had been several attempts to pull the door open. I had seen the ends of fingers on the edge of the door before that repeatedly. There was no rush when you passed out; but there may have been some hands on the door. I had gently led Mr. Wright as far out as the threshold when the rush commenced. I saw no obstructions in your way when you went out. I can't say whether Mr. Hutchins had to let go of the knob or not, when you got out. I thought at the time, that you meant to call the people in, and I so told our people then.
Mr. Davis cross examined the witness very minutely as to the repeated opening and shutting of the baize and outer door during the minute prior to the rush, and also as to his position from moment to moment, and the positions of Clark and Hutchins, at and near the door. He testified that he was somewhat hard of hearing, more so some days than on others.
To Mr. Dana. I think Saturday was one of my hearing days. I don't hear so well to-day. My deafness came on when Elder Knapp was here. I was called out on duty at the time of the disturbance in Bowdoin square, in 1843, or thereabouts.
To Mr. Lunt. I saw a cleaver in the hands of a black man outside the door. He was standing rather back.
To Mr. Dana. I know the voice I took for Mr. Davis's was not a black man's voice. I know a black voice usually from a white man's. It was a white man's voice, and I thought at the time it was Mr. Davis's. I did not think it was Mr. Davis's voice because of its being a white man's voice. It was my opinion that it was not the voice of a colored man. There were many other voices heard calling out at the time. My first reason for supposing it was Mr. Davis's voice was that it was not a black man's voice. Within the past three years I have casually conversed several times with Mr. Davis. Know him as I know a thousand other people in Boston.
To Mr. Lunt. That the voice I heard was not a black man's was only one of my reasons for supposing the voice was that of Mr. Davis.
Friday, Feb. 21st. Calvin Hutchins was called, and testified, that he was stationed at the door, and had hold of it, when Mr. Davis came to the door to go out. Mr. Byrnes spoke to him, and I opened the door for him; that is, I let it open, there being others pressing upon the door. I let the door open enough to let him out. I saw the stairway all filled. The stairs leading up were all filled also. When he stepped round, he got his back against the side of the door, and clapped his left hand up against the door. There was a cry to go in. I should suppose by the fingers on the door that five or six got hold of it to pull it round. I had already opened it as far as for others, and there was sufficient room for him to go out. I could not tell where he went to. He stood there when the door got started, and I was slapped round outside into the passage-way.
Cross examined. (To Mr. Davis.) To go out the best way to clear the crowd, you ought to have turned to your right; but you faced round to the door, putting your left hand upon it, and opening it more than was necessary. Some one had hold of the knob of the door at the time, and there were fingers on the edges. I was holding on to the door to give you space enough to get out, and was contending with the negroes by keeping the door from being opened more than sufficient to let you out. You slid out to the right.
To the Commissioner. Mr. Davis's back was against the door jam, or door post on the right, when his hand was on the door. [Witness goes to the door, and explains the position of himself and Mr. Davis, at the moment Mr. Davis had his hand upon the partly opened door.] The door opens outwardly from right hand side. Didn't see Davis afterwards.
* * * * *
Col. Seth J. Thomas was next called, and put, by the counsel for the defence, on his voir dire, as to any interest he might have in the penalties provided in the act. He answered that he was the counsel for Mr. De Bree, the owner of the alleged fugitive, and that he had received written instructions from his client in relation to the case of Shadrach; but he did not hold such a power of attorney as is contemplated in the fugitive act. His relations to the case were those of an attorney and counsellor of law, and as such he had advised with Mr. Caphart, the agent, who held such a power of attorney from Mr. De Bree as is intended in the act. Fees in no manner depended upon the result of the proceedings in the case.
Mr. Dana inquired what was to be proved by this witness.
Mr. Lunt. That the person under arrest was claimed as a fugitive.
Mr. Thomas. Was here on Saturday last, saw a person called Shadrach, who was alleged to be a fugitive slave.
This evidence was strongly objected to as hearsay, but held admissible by the Commissioner.
Cross examined. My means of information is confined to others. Don't know that I ever saw the negro before.
The Commissioner said that he had ruled that the Government were not obliged to show that Shadrach was a slave, and that no further evidence was necessary to show that he was arrested and escaped.
Mr. Davis. The question now arises under the present warrant and complaint, which alleges not only that one Shadrach was a fugitive slave; but that the same Shadrach who was a slave to one De Bree, was rescued. The Commissioner has ruled that the Government are not obliged to prove that the man under arrest was a fugitive, or was a slave. Does the Commissioner also rule that the Government need not show that the man arrested was the man claimed, and that the man rescued was Shadrach?
The Commissioner. The Government may prove by Col. Thomas that the man arrested was the man claimed.
Here the question was discussed, whether the prosecution were bound to prove that the colored man arrested was the person intended in the warrant, and named Shadrach. The Commissioner again held that the returns on the warrant were prima facie evidence that the man arrested was the said Shadrach.
Mr. Dana thought Mr. Riley had destroyed the presumption arising from the return by having testified that he did not personally know whether the man was Shadrach or not; all he could say was that he knew he was the man he had arrested as Shadrach.
Col. Thomas was allowed to testify, that the man arrested and brought into the court room was claimed by Caphart as Shadrach. When he came into the room Caphart said, "This is my boy." Col. Thomas produced a paper and testified to it as the power of attorney. Objected to on the ground that the signature was not proved. The Commissioner held that it was admissible as one of the papers before Mr. Curtis.
Simpson Clark, recalled.
Mr. Lunt. I propose to show that Shadrach admitted he was a slave, and owned by De Bree, and that his name was Shadrach.
Mr. Dana. It is true the Commissioner has admitted Col. Thomas to testify to the declaration of De Bree's agent, as evidence that De Bree claimed the man; but this evidence is still more remote. This is a criminal prosecution. Is a man to be bound by statements of others? This matter was not adjudicated. How can the man's admission that his name is Shadrach affect us? He is not placed upon the stand. He is not under oath. His admission is that his name is Shadrach, not that he is a slave. Moreover, the act provides that the party claimed shall not be received as a witness.
The Commissioner. An alleged fugitive is only excluded from being a witness in the case of a complaint against himself as a fugitive. This does not exclude his admissions in the case of a criminal trial of another party. His admission is the best possible evidence of identity under the act. See Law in Appendix, Sec. 6. ["In all proceedings under this act"]
Mr. Clark. Am a constable. Am employed specially. After the man was brought in, he asked who it was that claimed him. He first asked me, and I referred him to Mr. Sawin. Mr. Sawin named one person to him, and he said he did not know him. Mr. Sawin then named another person to him, and he said he did not know him. He then said he was named Shadrach, and commenced to tell me the circumstances of his coming away, but I advised him not to speak to me about it, as I might be made a witness against him. I told him not to tell any one but his counsel; and Mr. List, his counsel, told him the same, and he stopped talking to the officers and others. I was at the further side of the door when Mr. Davis went out. [Describes the scene.]
Mr. Lunt. Did you hear Mr. Davis testify the other day, if so, what did he say?
Mr. Clark. He said when he got down to the landing he first thought there was to be a rescue, and he saw a man pass two canes up.
To Mr. Davis. I had some conversation with you in the room near the prisoner, after Mr. Wright came in, while the minister was here. The prisoner said something about his trust in God.
Mr. Davis. Do you remember his saying anything further concerning his position, showing any religious feeling?
Mr. Lunt. Religious feelings have nothing to do with this case.
Mr. Davis. I am aware of that, I waive the inquiry.
Mr. Clark. I don't know that I saw anything peculiar in your conduct. Many persons spoke to Shadrach, besides the person who whispered to him. While my back was turned towards Shadrach, I heard some one say to him—"We will stand by you till death."
George T. Curtis, Esq., U. S. Commissioner, who held the examination in the case of Shadrach, testified that there was no actual disturbance during the hearing. About the time of the adjournment, it might have been a minute or so afterwards, a tall young colored man standing behind the rail, approached Shadrach, and, addressing him, said—"We will stand by you." Mr. Riley, the deputy marshal, observed the man, and heard the remark, and checked him, and sent an officer to remove him to another part of the room. Mr. Davis was present, but I did not know he was one of Shadrach's counsel. He neither said or did anything, so far as I saw, from which I could infer he was present in that capacity. Mr. E. G. Loring, and Mr. Sewall were the only recognized counsel; that is, they were the only persons who addressed the court, and I should not have allowed him more than two counsel.
To Mr. Dana. It is common to have more counsel than address the court. I do not know that Mr. Davis may not have been one of these. I should not have limited him, except as to such counsel as should address the court. [Witness identifies the papers produced before him, and the order he passed for the adjournment, &c.]
Austin S. Cushing. I was present on Saturday, while the proceedings were going on. After the order was given for clearing the court room, I saw a man standing behind the rail, who was disinclined to leave. He left rather slowly, and, as he was leaving, he reached his hand over to the prisoner, and, I believe, calling him "Fred," said—"We will stand by you till the death." It was a colored man.
Jessee P. Prescott, in the employ of the Fitchburg Railroad Company, testified that he was present in the passage way at the time of the rescue, and described the scene. A stout negro man came up the passage way from the supreme court room. He was peculiarly dressed, and two negroes said to him—"You are just the man we want." Another said—"That's the boy for them," pointing to him. There being some difficulty in getting the door open, some sung out—"Go it. Life or death, we are prepared for 'em." Another said—"Damned bloodhounds." Others said—"Knife 'em." One man, whom he took to be a minister, dissuaded the other party from acts of violence. Saw the rush into the court room, and saw the fugitive borne out in the arms of four or five persons. I am sure I saw Mr. Davis go into the court room by the east door, some five or ten minutes before the door was forced open. One man had a sword.
Cross examined. I had seen Mr. Davis before. I had seen him at the Thompson meeting at the Tremont Temple. I think I had seen him trying a case in court also. Saw you at the Chaplin meeting. The person I took to be you was in a hurry—had no hat on, and spoke to a man as he was coming in. Said, "How do you do," merely. It was not more than ten minutes before the adjournment.
Mr. Lunt here rested the case for the prosecution.
Mr. Dana moved the discharge of the defendant, on the ground of failure of proof, to raise the question of the construction of the statute, and asked the commissioner if he adhered to his ruling in Mr. Wright's case.
The commissioner denied the motion, and said that he considered it sufficient for the Government to prove that a person claimed as a slave had been rescued.
TESTIMONY FOR THE DEFENCE.
Mr. Davis now called a number of witnesses for the defence, and Mr. Dana gave notice that the first set to be examined were expected to testify to the character of the government witness, Frederick D. Byrnes, for truth and veracity.
* * * * *
William Ross was called to the stand as to the character of Byrnes, but Mr. Byrnes being absent, was withdrawn.
Mr. Riley recalled by defence. He was quite confident that Mr. Davis did not leave the court room, and come in again, just preceding the rescue. He seemed to be busy in talking with the associate counsel.
The prisoner put on his coat while within the bar, before Mr. Davis left the room.
To Mr. Lunt. On Saturday morning Mr. Davis asked me if I had any more Craft's cases. I told him not that I knew of. This was in the entry of the Court House. While in the Court Room after the adjournment, he asked me if he understood me to say in the morning that no warrant was out. I had no warrant when Mr. Davis spoke to me in the morning. The warrant was in the hands of another deputy marshal, and I had not then seen it. I told Mr. Davis that whether I had known, or not, of the warrant, I should have given him the same answer. The reply rather surprised Mr. Davis. I think no one could have entered the easterly door without my knowledge.
Cross Examined. To Mr. Davis. It was between 9 and 10 A.M., that I saw you. I was standing at the outer door, you passed, and I first asked you if you had seen Mr. George P. Curtis.
Mr. Davis. It was that which reminded me of fugitive slave warrants?
Mr. Riley. You answered the question, and then asked about warrants. I was waiting for Mr. Sawin, and Mr. Curtis at the time.
Henry Homer, assistant clerk of the Municipal Court. At the time of the mob, I was standing on the steps, about three above the level of the U. S. court-room. I had a view of the whole scene. The wooden door was open, and Mr. Hutchins had hold of it. The crowd was not very large then, nor pressing very hard. Three good officers outside could have protected the door, and cleared the passage. Then there were cries of "go in, and take him out," and the pressure increased against the door, and all at once it gave way, and in the crowd went. All done in ten seconds, I should think. Never saw anything done so quick before. Saw two men take hold of Shadrach and fetch him out, about twenty other men following. The stairs were clear when they brought Shadrach out, and they kind of threw him down the stairs. The crowd was all behind him. There was no crowd obstructing the stairs all the way down. The collection was outside. In passing him out into the street, they tore his coat off, and took his hat off. His coat laid in the mud, and his hat laid there. A woman seized him by the hair and said—"God-bless you. Have they got you?" Shadrach was very much frightened,—did not seem to know whether he had got among his friends or enemies. I saw this from the window at the head of the stairs.
I did not see Mr. Wright. I think Mr. Davis was on the platform, or on the third stair going down. I did not hear his voice. I think I should have noticed it, if he had spoken. I heard no white voice. The voices were all of colored people. I am well acquainted with your voice (to Mr. Davis),—I have heard the music of it often enough, both in court and out of it. I will not swear that Mr. Davis did not speak; but I will swear that I don't remember to have heard any voices but those of colored people. I had been out to get a volume to see the statute, forbidding the officers of this state from aiding in any manner in making arrests under the old law for taking fugitives.
To the Commissioner.—I remained on the stairs step above the landing until Shadrach was brought out. I then went up stairs to get out of the way. I saw no man with two canes; saw no man with a club; saw no man with a sword. I am a justice of the peace, but I did not know what duty it imposed on me at that time. The affair was sudden, and I was somewhat excited.
Afternoon.—Gustavus Andrews, jailor. I have known Frederick D. Byrnes ever since he came to Boston. His general reputation for truth and veracity is bad.
Cross Examined. I heard his character discussed by officers, and other persons. I cannot call to mind at this moment any person, not an officer, whom I have heard say he was not a man to be believed.
Hiram Wellington, Esq. Attorney at Law. Had known Frederick D. Byrnes about seven years—his general reputation for truth and veracity is decidedly bad.
Cross Examined.—I never had any difficulty with him, that I know of. He once brought a small suit against me for constable's fees, and recovered, I believe. It was in the justices court. I don't know that he ever brought any complaint against me. If he did it was a secret one. I never knew of his complaining against me to the grand jury.
William Ross, tailor.—I should like to know what I am summoned here for. I don't wish to testify. Have known Mr. Byrnes some three years. His general character for truth and veracity, I should say, is decidedly bad.
Cross Examined. Who have you heard speak of it? I don't wish to say. There have been twenty people in my place within a week to inquire how such a liar could get into office. I was once called to court in Cambridge to testify about his character, and he called upon me to ask what I had against him. He is a well-known man. He became known on account of having been brought up for adultery. I could name people whom I have heard speak of him. I have heard Martha Adams speak of him; she lived with him when he kept the Cape Ann Cottage, which was mysteriously burned down, and the insurance recovered. I might name others, but I don't think I am bound to mention them. Mr. Byrnes knows who they are.
Derastus Clapp, Constable.—Have known Mr. Byrnes five or six years; have not heard his character for truth called in question these two years; have not heard it discussed within that period. He has kept in this city during this time.
The Commissioner.—I think you cannot ask about reputation two years ago.
Mr. Lunt said it was clearly inadmissible.
Mr. Dana read a case in Wendall's Reports in which it was decided that the previous reputation could be shown. It is often the best evidence.
The Commissioner thought he should take time to decide the point.
Mr. Lunt said there might be a difference of practice in different states.
Ira Gibbs.—Have lived in Boston between 30 and 40 years—was city marshal. Have known Mr. Byrnes several years. I can't say but that I have heard his character spoken against in relation to truth and veracity. I don't think I have heard it frequently spoken about, but when spoken of, it has been against him.
Charles Smith—Constable and Coroner—Have known Mr. Byrnes about ten years; his character for truth, &c., bad.
Cross Examined.—The most I have heard about him has been from officers. Mr. Dexter keeps in the office with me. He has had difficulty with Mr. Byrnes. So has Mr. Leighton, who keeps in our office. I think I have heard his truth discussed, in reference to cases in which he was a witness. One of the cases was at East Cambridge. It depended wholly on his testimony, I understood, and the other side prevailed. These discussions about his character were revived on account of his being appointed deputy U. S. marshal. I don't know that those who spoke of him wanted the office. Don't know any body who wants his office.
Officers Rice, Dexter, Neale, and Luther Hutchins, examined as to the character of Mr. Byrnes for truth, testified to the same effect as the preceding witness.
Thomas S. Harlow, Esq., Counseller at Law. I have known Frederick D. Byrnes seven or eight years. His reputation for truth and veracity is bad.
Cross Examined.—Have heard him spoken of in the regular course of business, about the courts among officers. I had some business connection with Mr. Wellington, when he was sued by Mr. Byrnes.
At this stage, the court adjourned till Saturday, Feb. 22.
Saturday, February 22d.—Commissioner Hallett took his seat at 10 o'clock. Defence resumed. On the question reserved yesterday, the Commissioner decided in relation to the knowledge of Constable Clapp of the reputation of Mr. Byrnes, he having stated that he had not heard his truth and veracity spoken of for two years, that he must first be inquired of generally as to Mr. Byrnes's reputation. Mr. Clapp answered as he did yesterday, and then Mr. Dana was allowed to ask him if he knew anything of his reputation for truth prior to that period. He replied that for about five years previous to the past two he had heard his reputation for truth and veracity spoken of. It was bad.
Cross Examined.—When he was so spoken of, reference was had to some business matters; to a civil case at New Bedford, and a criminal case in Boston. It was his character for truth and veracity that was spoken of, and had no relation to his honesty in not paying what he owed.
John G. King. Esq., Counsellor at Law.—I was in this court room on Saturday forenoon. Mr. Davis was in when I came in. I ascertained that he was acting as counsel for the prisoner. After the adjournment I left Mr. Davis in consultation with the other counsel. Before leaving I drew up a power of attorney, which the man Shadrach signed. It was made to Robert Morris, and was intended to give him authority to act in reference to an application for a habeas corpus. When Mr. Riley was clearing the room, Shadrach pointed out Mr. Davis as one of his counsel, and as such Mr. Riley allowed him to stay.
Marcus Morton, Jr., Esq., Counsellor at Law.—I was sent for on Saturday morning by Shadrach. I had known him from six to nine months. There were but few persons in the court room when I came in. It was proposed to raise money for his value, if it should be decided to send him back. I went to the office of Colonel Thomas, the claimant's counsel, in relation to procuring the man's liberation in that way. Nothing resulted from the conversation with Colonel Thomas. I don't know that Mr. Davis knew of it. I know that Mr. Davis was twice recognized by Shadrach as his counsel. When I came in to the court room, Shadrach appeared excited, and was talking a good deal. I told him he had better keep his mouth shut, and not to speak to any person except his counsel. He asked who he should have, and I designated among others, Mr. Davis for counsel.
Cross Examined.—I communicated my intention to E. G. Loring. I was to have an answer from Colonel Thomas on Monday morning. I don't recollect mentioning this to any of the counsel. I did mention it to several people. The case had been postponed till Tuesday, before I called upon Colonel Thomas.
Charles List, Esq., Counsellor at Law. I was in this room on Saturday. Mr. Davis was here in the capacity of counsel for Shadrach. I heard Shadrach ask him to serve as counsel. Mr. Davis joined Mr. Sewall and myself at the table in examining the papers sent on by the owner for establishing his claims to Shadrach. Mr. Davis examined them very thoroughly, and expressed a decided opinion that the papers were not sufficient under the statute. I asked Mr. Davis who the men guarding the prisoner were. He said one was Sawin, whom he knew well, and he would inquire of him the other's name. He did so, and told me his name was Clark. Did not state to Davis my object in asking. Was told here there were to be proceedings for habeas corpus. I asked Riley for copy of the warrant. He said he had one for Mr. Dana, which he was to have before 2 o'clock. I told him if he would let me have it, I would give it to Mr. Dana before 2. Sewall and Mr. Davis were then present. I went to Mr. Dana's office. I left eight or ten minutes before two, leaving Mr. Davis. I think Mr. Davis did not leave the court room any time while I was there. I was there from the commencement of the hearing, except for a short time that I stepped into the law library, to see if a particular gentleman was there. I think I went into the library before the Commissioner left. I spoke with Mr. Davis frequently in the court room, and I think I should have known it, if he had gone out. No attempt had been made to force the door when I left. I had no difficulty in getting through the people in descending the stairs, or going through the passage, getting out of the court house.
Mr. Dana here proposed to prove that Mr. Davis at various places and times had advised the colored people against acts of violence. [The Commissioner was inclined to allow the inquiry].
Mr. Lunt objected to the inquiry, the charge against Mr. Davis being that he committed a specific act.
Mr. Dana waived the point for the present.
Mr. List resumed. It was agreed in the court room that the counsel should hold a meeting at Mr. Sewall's office at three o'clock, and another meeting was to be holden at half past nine the next morning. The meeting was not held that afternoon on account of the rescue. The meeting was held Sunday morning, and Mr. Davis was present. Mr. Davis called attention again to the insufficiency of the papers. Question then arose whether proceedings would go on, and what Commissioner might do.
Cross Examined.—I am not sure that Mr. Davis was one of those who agreed to hold the meeting in the afternoon. There were six who were considered as counsel. These were named E. G. Loring, Mr. Sewall, Mr. Davis, Mr. Morris, Mr. King, and myself. I cannot say that Mr. Davis was not out of my sight five minutes. When I went out, the officer opened the door sufficient to let me out, using no particular care with the door. There were in the entry about half as many people as it would contain; chiefly negroes; did not recognise any one, black or white, that I knew. I first went to Mr. Dana's office. I was in Court street going towards Washington street, when the rescue took place. I could not believe it when I first heard of the rescue, and went back to inquire. I had thought it possible a rescue would be attempted, for the colored people were very much against the law. I have spoken against the law, and probably shall again. [Manifestations of applause on the part of the spectators. Order commanded by the Commissioner].
Mr. Lunt here put the question,—Do you approve of the rescue? Mr. Dana objected, and the Commissioner sustained the objection. Mr. List preferred to answer, and said that he was opposed to any violation of law, and had advised against violations of the law.
George W. Adams, Esq., Counsellor at Law.—I was coming into the East door of the court house near 2 o'clock, on Saturday, met Davis going through the passage, near the marshal's office,—saw him pass between the pillars in front of the office. I talked with him two or three minutes. I heard noises and shouts above, while I was talking with Mr. Davis. Men were running in and out, when I left him, I ran out to Court street, and saw the crowd moving off.
Alonzo F. Neale, Constable Neale—I was in the court room on Saturday—was called in by Mr. Noyes, the messenger of the U. S. Courts—I saw Mr. Davis in the court room. I saw him go out of the court room. Somebody asked me to let Mr. Davis out. I said I was not the door keeper. The person then spoke to Mr. Hutchins, who opened the door, and Mr. Davis passed out. I suppose now it was Mr. Wright who asked me to open the door for Mr. Davis. I think Mr. Davis, Mr. Wright, and a third person, a stranger, went out about together; and my attention was called off for a moment, by noticing the colored man get up, put his coat on, and walk about. Then came the yell, and the forcing of the door. Doubting whether as a constable, I had any right to interfere, I concluded not to do anything until some emergency occurred. I saw Mr. Hutchins driven away from the door. It is my opinion that Mr. Byrnes was behind the door. If so, he could not see outside the doorway. At the time of the first rush, there was one or two near Mr. Hutchins, and Mr. Byrnes might have been one of them. I should think the prisoner got up and put on his coat just about the time Mr. Wright and Mr. Davis passed out. When the yell came the prisoner ran towards the door on the East side, and then back on the other side of the rail to the front door. I was somewhat excited, but I helped in holding on to the door. John H. Riley was on the other side, and Patrick Riley was walking back and forth. I felt rather vexed that they did not come to the door attacked, to assist in closing it, and I withdrew from the door. John Riley was calling for assistance. There had been pounding at the doors before the prisoner put his coat on, and shew signs of excitement; and there had been a good deal of loud talking outside. I was in the court room about an hour. I should not think Mr. Davis went out after I came in, until he went out at the time I have spoken of.
George W. Minns, Esq., Counsellor at Law.—I was in this court room between one and two on Saturday,—saw Mr. Davis was here. Including the officers and counsel, there appeared to be about a dozen persons in the court room, when I was admitted. Heard Mr. Riley say the prisoner would be allowed to see his friends from time to time, and every thing reasonable done to make his situation comfortable. Saw Mr. Davis—his manner was calm. He remained so till an incident occurred. Some person behind where I was sitting said something, concluding with the remark, "Kill the negroes!" I thought the remark came from Mr. Byrnes, but I don't know. Mr. Davis, at the time, was walking from the table to me, and heard it. He was irritated by the remark, and said—"Then, on that principle, you ought to have your throats cut." Mr. Byrnes and another officer were behind me. I was sitting within the bar, next to the railing, which was between me and Byrnes and the other officer. I know Mr. Byrnes' voice, and am able to recognize it, and I thought at the time that it was he who made the remark, but I cannot swear. It was not very loud, and I did not turn round to look at Mr. Byrnes. I didn't think from the tone, that the remark was made by one who intended to kill the negro, but I thought it was made for the purpose of irritating or insulting Mr. Davis. My attention was chiefly occupied in looking at the prisoner.
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.