CHAPTER V.
THE EXAMINATION. [From Anthony Burns: A History by Charles Emery Stevens (1856)]
THE examination in due form commenced on Monday, the twenty-ninth of May. Court Square presented on that morning a strange and alarming scene in free Massachusetts. There was nothing to indicate that a solemn judicial proceeding was about to take place. The Court House, an immense pile of stone, resembling, in its massive strength, a donjon keep of the middle ages, wore the air of a beleaguered fortress. At the windows in different stories of the building, the mingled soldiery of Massachusetts and of the United States presented themselves, with firearms, as at the embrasures of a rampart. Below, a vast throng of citizens, which had been constantly increasing from early dawn, surged around the base of the building and through the spacious Square in unappeasable excitement. All the outer entrances of the Court House had been securely closed, except one at which was stationed a strong force of the police. Even here, none were allowed to enter but the functionaries, the reporters for the press, and a few citizens who, by special favor, had obtained permits
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from the Marshal.1
1 In some instances, citizens of Massachusetts were excluded, while citizens of southern states were readily admitted. Charles G. Davis, Esq., of Plymouth, a well known lawyer, applied for admission in company with a friend. The latter was allowed to pass, on being introduced as "a gentleman from Washington, D. C.;" but Mr. Davis was kept out, and furthermore, was told by the underlings that they had orders to exclude him and all other "free-soilers." As a member of the Massachusetts Bar he had a right to enter.
Once within the walls, it was not certain that the adventurous citizen would be able to make his way to the tribunal. At the foot of the stairs leading to the court-room, files of soldiers barred the passage with their muskets, and raised them only at the nod of a customhouse officer deputed for the service. On the first landing-place were stationed more soldiers with fixed bayonets, and others still, at the head of the stairs. So strictly was the guard maintained, that those who had passed the first sentries were, in some instances, arrested and detained upon the stairway by the last. And not until the last moment before the opening of the court, were any except the officials, allowed to pass. Never before, in the history of Massachusetts, had the avenues to a tribunal of justice been so obstructed by serried bayonets borne in the hands of an alien and mercenary soldiery.
The court-room was not spacious, but it more than sufficed to contain those who were suffered to enter it. Many seats remained vacant as silent witnesses to the excessive fears of those who had enlisted in this enterprise against the popular feeling.
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Of those who were present, the most conspicuous, if not the most numerous portion, were pimps and bullies, whose vile passions and brutal natures had left a permanent impress upon their persons. Some of them, now appearing as officers of justice, were convicted criminals and had served out their sentence in the prisons. These carried it boldly, as though they had been presented with the freedom of the court-room; while the few good citizens present,--some, men of substance, and some, men of renown,--took their seats quietly as being conscious that they were there on sufferance. Nothing, perhaps, more clearly revealed the nature of the business in hand than the fact that the Marshal was compelled to rely for aid, chiefly, on the most depraved class of men in the community.
At length the court was opened. Alone, upon the bench from which Judge Story had been wont to dispense justice, sat the Commissioner, evidently oppressed by the load which he had chosen to take upon himself. In his appropriate place on the right stood the Marshal, Watson Freeman, in whose massy face, seamed by small pox, a certain look of good humor somewhat modified the prevailing relentlessness of its aspect. Over against the Commissioner, upon a seat just without the bar, sat Anthony Burns. On either side of him, as guards, sat two or three brutal-looking men, and in front of him, just within the bar, were four or five more, with pistols and bludgeons lurking in
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their pockets and but half concealed from the offended eyes of the spectators. At the clerk's desk, apart, sat the United States District Attorney, Benjamin F. Hallett, whose business there did not clearly appear. The counsel for the slaveholder and the slave respectively, the reporters for the press, the slaveholder and his southern friends, Theodore Parker, the Rev. L. A. Grimes, Morris, the colored lawyer of Boston, and some few others occupied the seats within the bar; while a moderate number outside completed the assemblage.
The first incident in the proceedings illustrated the character of the tribunal. Charles M. Ellis, the junior counsel for Burns, began with a protest against proceeding in the case under the extraordinary circumstances of the occasion.
"It is not fit," said he, "that we should proceed while counsel here (meaning the counsel for Suttle) bear arms. It is not fit that the prisoner should sit here with shackles on his limbs. It is not fit that we should proceed while the court-room is packed with armed men, and all the avenues to it are filled with soldiery, making it difficult for the friends of the prisoner to obtain access to him. I protest against proceeding under these circumstances."
"The examination must proceed," was the prompt response of the Commissioner. But Mr. Hallett, whose offensive and unexplained presence within the bar has already been alluded to, now joined issue, and proceeded to harangue the Commissioner
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in reply to what had been said. The Commissioner, immediately interrupting, reminded him that, as he had already decided the point, any further remarks were unnecessary. The District Attorney persisted. The conduct of the Marshal, he said, had been called in question, and he was present to act as his counsel. Again the Commissioner interposed: "Mr. Hallett, these remarks are irrelevant and entirely out of order." But the Attorney, without even pausing in his speech, went on with raised voice, inflamed countenance, and increased vehemence of manner, not only to repel the reflections that had been cast upon the Marshal, but also to instruct the Commissioner in his own duty. Insolence triumphed, and the Commissioner sank back in his seat with a helpless air, until the browbeating was ended. Men who had been wont to see the Bench treated with the profoundest respect by the Bar, who had known Daniel Webster bow in silence and resume his seat at the bidding of a common pleas judge, looked on indignant and amazed. Why was not the Attorney ordered into instant custody? Had the Court no power to protect itself?
Another incident, that occurred at a later stage of the examination, furnished an answer to this question. In attempting to return to the courtroom, after one of the short recesses that were reluctantly granted, Mr. Dana, the senior counsel for Burns, found his progress obstructed by the bayonets of the guard. In vain he urged his well
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known relation to the prisoner; he was kept waiting upon the stairs until it was the pleasure of the Marshal to permit him to pass on. The outrage was made known to the Commissioner, and he was moved to instruct the Marshal upon the subject. "I have no authority to direct the actions of the Marshal," was the short but pregnant answer, while that officer stood grimly smiling upon the foiled advocate of Freedom. The Marshal did not sustain the relation of a sheriff to a justiciary court; he was in no wise amenable to the Commissioner. He might surround the court-room with soldiery, admit or exclude whom he pleased, subject one party in the suit to personal outrages and bestow special indulgences on the other, and there was no one to call him to account. The Commissioner was not supreme in his own court. Under this confessed state of things, the examination went forward.
The case of the claimant had already been presented, while as yet Anthony had no one to defend him; but now, upon the demand of his counsel, the Commissioner ordered that the examination should commence anew. The complaint was read by Edward G. Parker, the junior counsel for the claimant. William Brent was then placed upon the stand. It appeared that he was a slaveholding grocer of Richmond, Virginia. He testified that he was the personal friend of Col. Suttle, and had long been acquainted with him. He had known him as a slaveholder, and as the owner of a slave
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named Anthony Burns. He had himself hired Anthony of Suttle for three years, and had also acted as the latter's agent in hiring him out to one Millspaugh. In this way he had come to have intimate personal knowledge of Suttle's ownership of Burns, and also of Burns' personal appearance. He now stated that the prisoner was the same Anthony Burns whom he had so well known in Virginia. He further said that he had last seen Anthony in that State on the twentieth of March, 1854; on the twenty- fourth, Anthony was missing, and on the Tuesday following, he communicated the fact to Col. Suttle, who was then residing in Alexandria. But of the manner in which Burns left Virginia he knew nothing.
The counsel for the claimant now proposed to put in, as evidence, the admissions which Anthony had made since his arrest.
"We object," said Mr. Ellis; "the sixth section of the fugitive slave law provides that the evidence of the alleged fugitive shall not be taken."
"The admissions and confessions of Burns are a very different thing from testimony," replied Seth J. Thomas, the claimant's senior counsel; "as a party in the suit--the defendant--he is not privileged to testify."
"It is the height of cruelty to the prisoner," urged Mr. Dana, "to take advantage of the only power he has under this law--that of speech--to his detriment, when the claimant, the other party
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in the suit, has not only his own right, but, in these alleged confessions, a portion of the prisoner's."
On the decision of this question, as the result proved, hung the fate of Anthony Burns. Even at this early stage of the proceedings, before the nature of the defence was known, the important bearing of the point was discerned. A breathless silence reigned in the court-room.
"I think," said the Commissioner, "that the word 'testimony,' in the law, must be regarded as referring to evidence given by a witness, and not to confessions or admissions; but I am unwilling to prejudice the liberty of the prisoner, and his counsel may have the right to pass that question for the present."
"We desire that the questions may be asked and the answers taken down for future use, if necessary," said the claimant's counsel.
The Court assented, and the witness proceeded to relate the conversation that took place, as follows: "Burns said he did not intend to run away, but being at work on board a vessel, and getting tired, fell asleep, when the vessel sailed with him on board. On Mr. Suttle's going into the room after the arrest, the first word from Burns was, 'How do you do, Master Charles?' The next thing was, 'Did I ever whip you, Anthony?' The answer was, 'No.' The next question was, 'Did I ever hire you where you did not want to go?' The reply was, 'No.' The next question was, 'Did you ever ask me for money when it was not
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given you?' The answer was, 'No.' Mr. Suttle then asked, 'Did I not, when you were sick, take my bed from my own house for you?' and the answer was, 'Yes.' He then recognized me, and said, 'How do you do, Master William?' Being asked substantially if he was willing to go back, he said he was."1
1 The important discrepancies between this statement of the conversation and that given on pp. 18, 19, chap. I., will be apparent at a glance. That statement was taken down from the lips of Burns by the author of this work. Burns emphatically denied the correctness of Brent's report of the conversation, and declared his readiness to make oath to the correctness of his own. As Col. Suttle stated in writing over his own signature, after he had returned to Virginia with his recovered property, that he continued to regard Burns as "strictly truthful," the reader will have at least his sanction for believing the statement of Burns in preference to that of Brent.
With some further unimportant details, the examination in chief was ended. A close cross-examination followed, but failed to elicit any additional evidence materially affecting the case. Throughout, the testimony of this witness was direct and unequivocal, and was delivered with an air of careless superiority, which was natural to a slaveholder testifying against a slave, and was not uncongenial to the peculiar tribunal in whose character there was nothing to overawe.
In giving in his testimony, the witness spoke of Burns and his relatives as "slaves." The counsel for Burns objected to this term. "The witness must not state any person to be a slave," said the Commissioner, "without corroborative legal evidence." This instruction from the Court caused
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not a little embarrassment to the witness. The habits of a Virginia slaveholder were inveterate upon him, and he found it difficult to extemporise forms of speech suited to the latitude of a free state and to the ears of a free people.
One, Caleb Page, a Boston truckman, was next called to corroborate Brent's testimony respecting the admissions of Burns on the night of the arrest. He had assisted in arresting the prisoner, and, according to his own statement, was "just the man wanted" by the officer for that business. His testimony added nothing to the strength of the claimant's case, and he had little reason to thank his employers for uselessly dragging him forth from obscurity to become an object of odium to his fellow citizens.
"We now propose," said the claimant's counsel, "to put in the record of the court of Virginia as evidence."
"It is in the case," said the Commissioner, "subject to objection from counsel."
The counsel for the defence examined the record. "We should have several objections to present against it," said they, "which, in the absence of a jury, we should like to present to the Court."
"The record," said Mr. Parker, "is decisive of two points: first, that Burns owed service and labor, second, that he escaped." On the point of identity he requested the Commissioner to examine the marks upon the prisoner.
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"I perceive," said the Commissoner, "the scars on the cheek and hand, and take cognizance with my eye of the prisoner's height." He offered to have the prisoner brought up for a closer examination, but this was declined.
A volume of Virginia laws relative to the organization and power of courts was presented as evidence. Objection was made.
"A book is here presented," said Mr. Dana, "to show that a person owes service and labor in Virginia! We deny the sufficiency of the evidence."
The proper way," said the opposing counsel, "to prove the law of another state is by books; if the book is not sufficient, I wish to prove the fact in another way."
"Let the book go in as testimony for what it is worth," said the Commissioner.
The evidence on the part of the claimant here closed. The court had been in session five hours, and an adjournment was asked for. At first, the Commissioner refused to grant it, his anxiety to press the case to a close overpowering all considerations of judicial decorum. With great reluctance, he was at length persuaded to allow a half-hour's recess to enable the prisoner's counsel to examine authorities and make some other necessary preparation.1
1 The greater part of this brief recess was rendered of no avail by the obstructions which the officials and the military presented in the way of the counsel for Burns.
Upon the re-assembling of the court, Mr. Ellis
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opened for the defence. Allowed but a single day for preparation, denied access to the law library of the court, obstructed and delayed in his movements by the military, he entered upon his task under the greatest embarrassment. He and his associate had been charged with seeking, not a trial under, but a triumph over the law. This was denied. "Not only," said he, "have I never sought to resist the law, but I have done something to stay resistance to it. I stand here for the prisoner, under, and not against the law."
The position of the prisoner was impressively described. "Seized on a false charge, without counsel, the prisoner is to be doomed. And then, with no power to test jurisdiction, when every one of the writs of the common law for personal liberty's security is found to have failed, without time, without food, without free access to the court, without the show of free action or free thought within it, without challenge for favor or bias, for cause or without cause, without jury, without proofs in form, or witnesses to confront him, with a judge sitting with his hands tied, in nearly all points the merest tool of the most monstrous of anomalies, with no power to render a judgment, but full power to doom to the direst sentence, I say that in all things save one--in your opinion--the prisoner has not the semblance of justice."
It had been urged that the examination was merely preliminary. "They know better." replied the advocate, "when they say so. The law looks
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no further, nothing is to follow. This is the final act in the farce of hearing. They know, we know, you know, that if you send him hence with them, he goes to the block, to the sugar or cotton plantation, to the lash under which I have heard that Sims, who entered the dark portal, breathed out his life." Therefore he adjured the Commissioner to refuse the certificate of surrender except upon the most overwhelming proof.
And what proof had the claimant presented? He had called only a single witness, and had produced a written paper which he styled a record of a Virginia court. This evidence, the counsel alleged, was defective in many particulars, which he pointed out; some of it was inadmissible, and what was admissible was insufficient. The fugitive slave act was commented upon, and several positions were stated upon which it was claimed that act ought to be declared unconstitutional.
"For the reasons now presented," said the advocate, in closing his review, "the claimant shows no claim to a certificate; and, if such a case stood alone, we feel that it ought to be dismissed."
"But," continued he with altered look and voice, "the prisoner has a case of his own. The complaint alleges, the only record offered proves, the only witness called testifies to, an escape from Richmond on the twenty-fourth day of March last. The witness swears clearly and positively that he saw this prisoner in Richmond on the twentieth day of March.
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"We shall call a number of witnesses to show,--fixing, as I think, the man and the time beyond question,--that the prisoner was in Boston on the first of March last, and has been here ever since up to the time of this seizure. This is our defence." An alibi was to be proved.1
1 The word alibi is the one that most nearly expresses the idea sought to be conveyed. I am told that it is not in good odor with the legal profession. Let it be taken without the bad odor, and the reader will get no wrong impression.
A colored citizen of South Boston, named William Jones, was called upon the stand. He testified that he first saw Burns in Washington street, Boston, on the first day of March, 1854, and that on the fourth of the same month he employed him to labor in the Mattapan Works at South Boston. He was able to fix the dates by reference to a memorandum book, in which, at his request, a certain Mr. Russell had made an entry of the time, and which was produced by him in court. The particularity of detail with which this testimony was given, presented a field for attack which the claimant's counsel did not fail to improve. A sharp and protracted. cross-examination followed, but it failed to shake the testimony, and, at the end of several hours, the witness was permitted to retire from the stand.
George H. Drew, a white citizen of Boston, confirmed the statements of the colored witness. He was the book- keeper at the Mattapan Works, in March; knew Jones to have been employed
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there on the first of that month, and then saw Burns with him. He had no doubt of the man's identity; and he had, moreover, observed that on his first entering the court-room, Burns had appeared to recognize him by following him round the room with his eyes.
James F. Whittemore, a member of the city council of Boston, and a director of the Mattapan Works, swore that he saw Burns there on the eighth or ninth of March, at work with Jones. He identified the man by the scars on his cheek and right hand, and fixed the time by reference to his return from a journey. To a question from the prisoner's counsel, he replied that he was an officer of the Pulaski Guards, then under arms for the purpose of quelling any disturbance growing out of this affair, and that he was not a free-soiler or abolitionist, but a hunker whig. This explanation was fitted to increase the weight of his testimony on the public mind.
Stephen Maddox, a colored clothing trader in Boston, had seen Burns at his store in March, accompanied by Jones. He had particularly noticed the mark on his cheek, and was able to say that the time was about the first of the month.
William C. Culver, a blacksmith, H. N. Gilman, a teamster, and Rufus A. Putnam, a machinist, all of whom had been employed at the Mattapan Works in March, testified with various degrees of particularity to having seen the prisoner there before the middle of that month.
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John Favor, a carpenter, had seen Burns, accompanied by Jones, in his shop, some time between the first and fifth of March, he thought; he had no doubt that the prisoner was the man.
Finally, Horace W. Brown, a police officer, testified that, while employed as a carpenter at the Mattapan Works, he had seen Burns at work there with Jones, some week or ten days before he left, which was on the twentieth of March. He had not the slightest doubt about the man's identity.
The evidence for the prisoner was closed. As it progressed, a marked change in the countenances and manner of the claimant and his party had gradually made itself manifest. They had greeted the first colored witness with a fixed stare of contemptuous incredulity; his story they regarded as the falsehood of a perjurer, and when the ingenuity of the counsel in cross-examining proved no match for the negro's self-possession, they still looked upon it as only the case of a "lie well stuck to." The testimony of the next witness, a respectable white citizen, somewhat abated their lofty and assured looks; but when one who was clothed with the double responsibilities of civil and military office, who was at the time on duty in the claimant's behalf, and who disavowed the character of an abolitionist,--when this witness emphatically confirmed the testimony previously given, all the assurance of the claimant and his friends gave place to unfeigned anxiety and alarm, while wonder and hope played over the countenances of those who sympathized
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with the prisoner. Witness after witness followed, until the cumulative evidence of nine persons stood arrayed in irreconcilable hostility against the single testimony of Brent. It seemed beyond a question that the alibi had been established.
An effort was now made to destroy the force of the evidence in behalf of the prisoner, by the introduction of rebutting evidence. One of the witnesses, called for this purpose, had been a keeper over Burns, from the time of the arrest; he was expected to testify to certain statements made by the prisoner while in his charge. This was objected to, on the general ground that the prisoner's admissions were not to be received at all; on the further ground that, in this instance, they had been made under intimidation; and finally, on the ground that it was not rebutting testimony. Notwithstanding, the Commissioner ruled that it should be admitted. Accordingly, the witness proceeded to state that in conversation with himself, during the period of arrest, Burns had said that he had been in Boston about two months, and that previously he had been in Richmond, Virginia. With this piece of evidence from a hireling of the slaveholder, the testimony on both sides was closed.