Chapter III: Part 3

Why should the criminal proceedings of this day have taken place at all? What is the evidence? The learned District Attorney thought proper to suggest to the Court that there was further evidence which might be presented in another stage of this proceeding. That, I am sure, fell with as little weight upon the mind of the Commissioner as it would if we, on the other hand, had said, as is the fact, that we have a large amount of evidence that might yet be presented in behalf of Mr. Davis. This is not a game of brag! It is not upon evidence that is not here, but upon evidence that is here, that this case is to be decided. Here has been mortified pride, here has been fear, here has been the dread spectre of Executive power, stalking across the scene, appalling the hearts, and disabling the judgments of men. Excited men suspect everybody. Every person who ever attended a public meeting is suspected. A political party is to be put under the ban. There is nothing so rash as fear. There is nothing so indiscriminating as fear. There is nothing so cruel as fear, unless it be mortified pride--and here they both concurred.

Instructions come from a distant Executive power that knows nothing of the facts. And the fear of that power and patronage is the reason, may it please the Commissioner, why suddenly, on Saturday or Sunday, before the subject can be examined and the truth ascertained, a warrant is got out against a person of the character and position of Mr. Davis. But when we look at things in their natural light, when there is a calm investigation of the facts, I think the Government will see and regret its rashness and delusion.

I understand, may it please the Commissioner, that there is to be a great deal done on this case of an unusual character. We have been threatened with the reading of newspapers; and public meetings, and political principles are to be charged as treasonable. Yes! political considerations are brought to bear. We cannot tell what limit is to be put to this. Therefore, not knowing what is before me, having no ordinary rules of procedure to guide me, the Commissioner will allow me to try to anticipate the attacks as well as I can. For having had it intimated that the argument will not follow legal evidence, but extracts from newspapers--

_Mr. Lunt._ That is very strong. I have offered you everything of that kind that I have to say.

_The Commissioner._ The gentleman proposes to read as part of his argument, an article from the newspapers.

_Mr. Dana._ He proposes to read it as evidence, to affect the mind of the court on the facts. I cannot object to it now. When it is offered, I have no doubt it will be properly met by the Commissioner.

I say, not knowing what is to come upon me, I must take a pretty wide margin. In that view of the case, it will not be improper if I state what I understand to be the true position of Mr. Davis, with reference to the principles involved in this case.

May it please your Honor, we are not subjects of a monarchy, which has put laws upon us that we have no hand in making. I do not hesitate to say, here, that if the act of 1850 had been imposed upon us, a subject people, by a monarchy, we should have rebelled as one man. I do not hesitate to say that if this law had been imposed upon us as a province, by a mother country, without our participation in the act, we should have rebelled as one man.

But we are a republic. We make our own laws. We choose our own lawgivers. We obey the laws we make, and we make the laws we obey. This law was constitutionally passed, though not constitutional, we think, in its provisions. It is the law until repealed or judicially abrogated.

Who passed this law? It was passed by the vote of the representative of our own city, whom we sent there by our own votes. It was advocated by our own Senator. It was passed by the aid of northern votes. Where is the remedy? It strikes me that the statement of the case shows where the remedy is. It is in the hands of the people. It is not in standing behind and urging on poor men to put themselves in the cannon's mouth. It is political courage that is wanted. Courage shown in speech, through the pen, and through the ballot-box.

But be it known that all I have said is on the idea that this is a repealable law. If we are to be told that this is a part of the organic law, sunk down deep into national compact, and never to be repealed,--then neither you nor I can answer for the consequences. But now we can say that it is nothing but an act, that may be repealed tomorrow. Take from us that great argument, and what can the defendant and myself do? What can the defendant say to discourage colored men from the use of force? You take from him his great means of influence. I never have been one of those, and I think the defendant has never been one of those, who would throw out all their strength in denunciations against Southern men born to their institution of slavery, and pass over those Northern men who volunteer to bring this state of things upon us.

But as a citizen, within constitutional limits, addressing his fellow-citizens at Faneuil Hall, (where I think we have still a right to go,) discouraging his fellow-citizens from violence, writing in the newspapers and arguing in the courts of law to the same purpose, saying to the poor trembling negro, I will give you a habeas corpus! I will give you a writ of personal replevin! I will aid in your defence! There is no need of violence! That is the position of the defendant. If he held any other position, if the defendant had made up his mind that here was a case for revolution, that here was a case for civil war and bloodshed--if I know anything of the spirit of the defendant, he would have exhibited himself in a far different manner. He would have resigned his position as a counsellor of this court, with all its profits and honors; he would put himself at the head instead of urging on from behind a class of ignorant, excited men, against the execution of the laws.

For he knows perfectly well--an educated man as he is, who has studied his logic and metaphysics, and who is not unfamiliar with the principles of the social system--that an intentional, forcible resistance to law is, in its nature, revolution. And I take it, no citizen has the right forcibly to violate the law, unless he is prepared for revolution. I know that these nice metaphysic rays, as Burke says, piercing into the dense medium of common life, are refracted and distorted from their course. But an educated man, with a disciplined mind, knows that he has no right to encourage others to forcible resistance, unless he is ready to take the risks of bringing upon the community all the consequences of civil war. We talk about a higher law on the subject of resistance to the law. And there is a higher law. But what is it? It is the right to passive submission to penalties, or, it is the active ultimate right of revolution. It is the right our fathers took to themselves, as an ultimate remedy for unsupportable evils. It means, war and bloodshed. It is a case altogether out of law. I do not know a man educated to the law that takes any other ground.

I suppose your Honor did not misapprehend my last remark and that no one did. When I said resistance to the law, I did not mean to include resistance for the purpose of raising a constitutional issue. If an unconstitutional tax is levied, you refuse to pay it and raise the constitutional question. This right seems to be lost sight of. Persons seem to think we are to obey statutes and not the constitution. I understand that the duty to the constitution is above the duty to the statutes. And therefore I say, by resistance to the law, I mean combined, systematic, forcible resistance to the law for the purpose of overcoming all law, or a particular law in all cases; defying the government to arms, and not for the purpose of raising a constitutional issue. For this is within the power, nay, it is sometimes the duty of a citizen. I do not know a position in which a person does a greater good to his fellow citizens than when he does, as John Hampden did on the question of ship money, raise, by refusal to obey, the constitutional issue. And in doing this, he ought to have the approbation of the Courts and their ministers, and of every person true to the constitution and the laws.

At the same time that it is important to maintain all these principles, which are the principles of the defendant, I also think this is a season when we must be very careful that certain opposite doctrines are not carried too far. I think it is a time, this day, when it becomes a judicial tribunal to see to it, that this extraordinary combination of Executive power and patronage; this alarm and this anxiety at head quarters, does not lead to a violation of private rights and personal liberty. I think there is a pressure brought to bear against the free expression of popular opinion, against the exercise of private judgment--a pressure felt even in the courts of law, intimidating counsel, overawing witnesses, and making the defence of liberty a peril. There is the pressure of fear of political disfranchisement, of social ostracism, which weighs upon this community like a night-mare. We feel it everywhere. We know that we make sacrifices when we act in this cause. We feel that we suffer under it. And if this course is persevered in, I believe that if a man stands at that bar charged with being a fugitive slave, he will find it difficult to obtain counsel in this city of Boston, except from a small body of men peculiarly situated.

I think that two years ago no man could have stood before this bar, with perpetual servitude impending over him, but almost the entire bar would have come forward for his defence. No man would have dared to decline. But because of this pressure of political and mercantile interests, it is said that Henry Long found it difficult to obtain counsel in New York. His friends sent to Boston to obtain an eminent man here, willing to brave public feeling by acting as a counsellor in a case of slavery. I do believe that this danger is to be regarded. For there is, at times, as much servility in democracies as in monarchies. I was struck with the remark made by the Earl of Carlisle, in his late letter, that there is in the United States an absolute submission to the supposed popular opinion of the hour, greater than he ever knew in any other country in the world. This is something in which no American can take pride.

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 illustrations 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 constitutional compact makes us responsible, and we cannot escape from our share of the evil and the wrong.

But I must leave these generalities, and pass 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 Massachusetts that the pursuing of slaves was criminal. I thank God, 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 Constitution 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 analogy 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 assumes 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 identity 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 identity, 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 repetition 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 passer 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 passed 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 space 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 pass. 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 class 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 passing a large, handsome house, when my friend said to me, "There lives perhaps the richest man in our town, but he visits nowhere, nobody 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 classes 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 assisting 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 Saturday, when the mob passed 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 passing 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 assumption 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 assistant clerk of the Municipal Court, who saw the whole occurrence from the stairway, did not think it would be any thing serious. Mr. Warren, the Deputy Marshal, passed 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 passing up the stairs and through the passage-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 documentary 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 passage? 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.

Mr. Davis was on or near the platform when Mr. Homer saw him. Mr. Adams met him on the lower floor, by the Marshal's office, while the noise was going on up stairs; talked with him two or three minutes, and walked round the building, and saw the crowd go up the street. This proves that Mr. Davis did not linger near the rescuers; nor did he absolutely run away, or fly, as a man would who desired to avoid discovery. On the contrary, he did just as any other person would have done. He staid long enough to let himself be seen by several persons, but not long enough to be of any aid to the rescuers. Nothing can be clearer of cause for imputation, than the conduct of Mr. Davis in the entry and on the stairway.

Such, please your Honor, is all the evidence against the defendant. It is reduced to an exclamation on the stair-case, sworn to, not very confidently, by a deaf man, who was too far off to hear well at any rate of hearing, denied by three officers, with good hearing, two of whom were outside, while a dozen voices were calling out the same thing at the same moment; the moment, too, one of alarm and excitement on the part of the officers. If such evidence is sufficient, who can be safe? Who would dare to act as counsel in any case of public excitement, with a suspicious and angry government watching every motion, served by officers of broken down reputations?

Please your Honor, I have done with the testimony. On what principles of proof is the judgment to be made up?

The Constitution requires that no person shall be arrested without a warrant supported by oath. The Act of 1789 requires these proceedings to be conformed to proceedings in the State Courts. In Massachusetts it has always been required that the complainant shall be first examined on his oath. In this case there has been no examination under oath. Mr. George Lunt, has sworn, "so help me God," that Charles Gideon Davis, a Counsellor of this Court, has aided in rescuing the prisoner. Yet, so help him God! he knew nothing about the facts. He has made oath to the form of the Statute, and no more.

_Mr. Lunt_ here intervened and said it was the custom for the District Attorney to swear to complaints on hearsay evidence.

_Mr. Dana_--But this is not stated as hearsay. It is sworn to as a fact. Charles G. Davis "_did_ rescue," and the above named George Lunt made oath to the _truth of the facts_. As a question of conscience, I leave it with that officer to settle with himself. As a matter of law, as a matter of vital importance to every citizen, as a great question of constitutional law, I earnestly protest against the issuing of warrants on the mere formal oaths of official persons, representing a party in the proceedings, and utterly ignorant of the facts they swear to. If it be a custom, it is more honored in the breach than in the observance. But I deny that it is the custom. Complaints are sworn to by persons knowing the facts always in the State Courts, and in my experience in the Federal Courts. If the prosecuting officer is obliged to swear to them, for want of other witnesses, he only swears to his information and belief.

In closing my prolonged remarks, let me recapitulate our case. Mr. Davis is not the man to urge others to acts he dares not commit himself. He believes this dreadful statute unconstitutional, a violation of our moral sense, a great breach upon the safeguards of freedom every where. Yet he will oppose it legally, by speech, by the pen, and in Court. He will not yield to it any voluntary obedience, but he will not use force, or counsel citizens to use force to set aside the laws. He rejoices that Shadrach is free. Every right minded man rejoices that he is free. Sober second thought teaches him and all of us that violent counsels are weak counsels. Better had it been for the cause of freedom, if, when the Marshal called out to shoot the prisoner, some armed minister of the law had shot dead the unarmed, unoffending man! Better had it been for him, and the cause of those like him, if John H. Riley, instead of flying to the window, had plunged that sword to the hilt in the heart of the captive! Better if this temple of justice, which has already been turned into a slave jail, and a slave market, had also been made the shambles and the grave!

While we uphold the public peace and the dignity of all laws, let us regard with tenderness and consideration that poor class of oppressed men, our negro population, on whom the statute falls with the terrors and blackness of night. When one of their number, by his industry and abilities has raised himself to the dignity of a place in this bar, it was with mortification I heard him insulted, yesterday, on the stand, by an officer of court, who pointed him out, in giving his evidence, as "the little darkey lawyer." While I rejoiced at the rebuke administered to that officer from the bench, it was with deep regret that I saw the representative of the government lead off the laugh of the audience against him.

_Mr. Lunt_--This is false.

_Mr. Dana_--Do you deny you did so? It was seen and noticed by us all. I spoke to you at the time.

_Mr. Lunt_--I only smiled. I cannot always control my muscles.

_Mr. Dana_--I am sorry you could not control them on this occasion. It led off and encouraged others, who take their cue from persons in high stations.

The doings of these last few days are now part of history. If there has been a hasty and a needless arrest of a respectable gentleman; if counsel have been intimidated, or witnesses threatened; if liberty of speech and action have been periled; if the dignity and duty of office have been yielded to the unreasonable demands of political agents, and the commands of a misinformed Executive,--the Inquest of public opinion is to sit upon the whole transaction, and it will be held up to the world. _Proximus ardet Ucalegon!_ There are revolutions in the wheel of fortune. There are tides in the affairs of men.

Let us hope that your Honor will be able to set this occurrence in its true light:--A sudden, unexpected, unpremeditated action of a group of excited men, and successful because unexpected. But a sworn counsellor of this Court, even in the excitement of the rescue of a slave to his freedom, by those of his own flesh and bone, did not forget the duty he owed personally to the Court and the law.

* * * * *

ARGUMENT OF GEORGE LUNT, ESQ., DISTRICT ATTORNEY.

Mr. Lunt said that the counsel for the defence had commenced by saying, that he did not know how he was to be answered. He should not reply to the first two hours of the gentleman's speech. The gentleman has alluded to constitutional doctrines, and opinions, which a small class of the community entertain. I shall not spend my time for popular effect. Some of his remarks come with an ill grace from him, and those with whom he associates. The gentleman should take care how he is associated. I have nothing to say against the colored people--ignorant--degraded, no doubt, but peaceable, as a general thing; they would be glad to get away from people who meddle with them, and would prefer to be let alone. But I say it is dangerous and mischievous to recommend such doctrines as the gentleman avows. _Proximus ardet Ucalegon!_ The relation of counsel in which he appears here may be changed. The sentiments he has uttered here place _him_ in peril. He will find it _so_, _to his cost_, unless he changes the tone of his remarks, on this and future occasions.

I will proceed at once to the evidence. The question here is, has a law of the United States been violated? I throw to the winds every question except whether this defendant is guilty; high or low, it matters not; the higher in station, the more amenable. I do not suppose for a moment that the Commissioner has any prejudice. We cannot, and we never will regard, the office, which the counsel seems to consider sacred. The sacredness of an office depends upon the sacredness of character. I am accused of having arrested an individual with unseemly haste, a person of character, of a family whose name is known in history; a member of the bar, bound to preserve the law, counsel at the time, and entitled to perfect freedom. I can state with confidence that the defendant was not arrested until after a full personal investigation of facts, and then on a keen sense of duty. Now what were the grounds in general, on which the warrant was issued? Mr. Davis meets Mr. Riley in the morning, upon which, after an inquiry whether he has seen Mr. Curtis, he asked if he has a slave case? a question he might well ask, considering the company with which he is associated. He asks him again in this Court room.

_Mr. Dana_--There is no evidence of that,--the evidence is, that after the adjournment he asked an explanation from Mr. Riley of the interview in the morning.

_The Commissioner_ referring to his notes--says, he believes Mr. Dana is right.

_Mr. Lunt._ Now with whom is he associated? I hold in my hand an account of a meeting held in Faneuil Hall, on the 14th of October last.

_Mr Dana._--For what purpose this narrative to be read here? It is an account from a hostile paper, of a political meeting, not made under oath; and it does not appear who wrote it, nor whether the person who wrote it was present at the meeting.

_The Commissioner._--I shall not object to the gentleman's reading whatever he thinks proper. You have introduced in your argument a great many irrelevant matters, Mr. Dana, and Mr. Lunt may do the same.

_Mr. Lunt._--This is the account,--Reads from the Boston Post of October 15, 1850.

THE FUGITIVE SLAVE LAW MEETING.

"The call for a meeting of the opponents of the fugitive slave law, at Faneuil Hall, last night, collected a large audience, comprising a considerable number of colored people. There were about three hundred colored females in the galleries. The meeting was called to order by Francis Jackson, and organized as follows:--Charles Francis Adams, President; Samuel E. Sewall, Gershom B. Weston, Francis Jackson, and Timothy Gilbert, Vice Presidents; J. W. Stone, and J. W. Thornton, Secretaries.

"Upon taking the chair, Mr. Adams delivered a carefully prepared address, in which he maintained that the law was repugnant to the spirit of our institutions and the constitution, and fraught with as much danger to free colored people as to fugitives.

"He was followed by Frederick Douglass, who described the consternation the law had created among the colored people, free and fugitive, and said that he knew of hundreds of both classes who were fleeing to Canada. The free colored people were in fear of seizure by conspiring complainants, aided by perjured affidavits.

"Richard H. Dana, Jr., after expressing regret that the meeting was not made up of somewhat different material, of the leading men in all branches of business, and of men of property and reputed respectability, read a long letter from Josiah Quincy, senior, declaring against the law, but at the same time expressing his belief that there was no real ground for alarm, for, in his opinion, the enforcement of the law in Massachusetts would prove to be impracticable.

"At the request of the President, Mr. Dana also read a series of resolutions, author unknown, declaring that the moral sense of the individuals composing the meeting, revolted against the law; denouncing it as contradictory to the declaration of independence, and inconsistent with the purposes of the constitution, and in direct violation of its habeas corpus provision, and the right of the people to be secure from unreasonable seizure, &c.; that the meeting could not believe that any citizen of Boston and its vicinity could be so destitute of love of his country and of his race, or devoid of a sense of justice, as to take part in returning a fugitive; and that all present pledge themselves to endeavor to aid and cooperate with all colored people endangered by the law.

"Speeches were made by Wendell Phillips, James W. Briggs, of Ohio, Charles Remond, and the Rev. Mr. Colver. The resolutions were adopted, as a matter of course. The last one provided "for a committee of vigilance to secure the fugitives and colored inhabitants of Boston and vicinity from any invasion of their rights by persons acting under the law," and the committee was styled and made up as follows:--"

The last resolution provides for a committee, of which Charles G. Davis was one. Now I admit that Mr. Davis was in Syracuse, at the time. But he admits that he volunteered upon his return. Why didn't he publicly disclaim any assent to these proceedings? And if he did not, is he not to be presumed to have assented? I want the public to know whether Mr. Davis and those associated with him, abide by the doctrines avowed in Faneuil Hall.

The Statute provides that whoever has been engaged in aiding, abetting, or assisting, _directly or indirectly_, is criminal. I shall contend that the defendant is directly implicated. He is more or less implicated, in the opinions which have been promulgated, and from his conversations with Mr. Riley. What next? He comes and asks whether a certain man is a Southern man. Why? Is not a Southern man to go into a United States Court? Has it come to this?

Mr. Davis then says to Sawin, "this is a d--d nasty piece of business," in the presence of the prisoner. He knew that such an expression was calculated to have two effects; first, to discourage the officer,--and secondly, to encourage and excite the prisoner. This was an indirect aiding,--connecting it with the subsequent escape. He uses language of a very unusual and violent character afterwards.

For some unaccountable reason Mr. Davis remains here; for it is unaccounted for. Was he counsel?

I maintain he was not counsel. Mr. Riley did not know he was counsel when he asked Shadrach in Wright's presence if Davis was counsel. Riley didn't know it then. Shadrach appeared to be in doubt about it.

(It was suggested that there was no such evidence.)

What was he waiting for? What single thing did he do as counsel?

Mr. Lunt here reviewed the evidence of the transactions in the court room more minutely. Davis pushed the door and stuck his back against the post. One expression, "Take him out, boys," is the natural expression of a stranger. The other words testified to by others were, "take him out." He goes down, and does not interfere, according to his own statement. He shows no disposition to prevent a rescue.

The Commissioner inquires whether not interfering may not be indirectly aiding and abetting.

_Mr. Lunt._ I am not ready to take that ground at present.

_The Commissioner._ He is undoubtedly liable, as a magistrate, and subject to a fine of $300.