CHAPTER VI.
THE ARGUMENTS
(from Anthony Burns: A History by Charles E. Stevens, 1856)
AMIDST the deepest silence, Richard H. Dana, Jr., rose to make the closing argument for the prisoner. The son of one of America's most eminent poets, the grandson of a Chief Justice of Massachusetts, he was less indebted to ancestral fame for the high position which he at the time enjoyed, than to his own genius and industry. Compelled, while a member of the University, to abandon the pursuit of science for the pursuit of health, he had shipped before the mast on board a vessel bound to the then almost uninhabited coast of California, for a cargo of raw hides. In this situation, sharing in all the perils and toils and pleasures of the common sailor, on ship and on shore, now out upon a yard-arm reefing sails in a tempest, now on land, day after day, bending beneath a load of filthy hides, he underwent an experience which would have rendered a coarse nature only coarser, but which, transmuted and improved by his finer nature, and afterwards given to the world in the celebrated and fascinating "Two Years Before the Mast," became the foundation of his future fortunes. Elected a member of the Convention for revising the Constitution of Massachusetts in 1853, he there quickly distinguished himself, and by universal consent took his place in the first rank of that eminent body. He was now, by his generous and powerful defence of the oppressed, about to earn fresh laurels for his brow. (Two purses, of $200 each, were made up by the Committee of Vigilance, and tendered to Messrs. Dana and Ellis, but the service had been given from love of the cause, and the money was declined. Subsequently, pieces of silver plate, with suitable inscriptions, were presented to each gentleman by the same parties).
Of moderate temper, of conservative principles, of charitable judgment, he yet felt impelled, by the unparalleled circumstances of the occasion, to preface his argument with an exordium so stinging and intolerable in its truth, that the miscreants at whom it was levelled, and upon whose ears it fell, glutted their revenge, not long after, by waylaying him in the street at night and felling him to the ground. Widely circulated in the papers of the day, it deserves a place upon the permanent page of history.
"I congratulate you, Sir," said he, "that your labors, so anxious and painful, are drawing to a close. I congratulate the Commonwealth of Massachusetts that she is to be relieved from that incubus which has rested on her for so many days and nights, making her to dream strange dreams and see strange visions. I congratulate her that at length, in due time, by leave of the Marshal of the United States, and the District Attorney of the United States, first had and obtained therefor, her courts may be re-opened, and her judges, suitors, and witnesses may pass and repass without being obliged to satisfy hirelings of the United States Marshal and bayonetted foreigners, clothed in the uniform of our army and navy, that they have a right to be there. I congratulate the city of Boston that her peace here is no longer to be in danger. Yet I cannot but admit that while her peace here is in some danger, the peace of all other parts of the city has never been so safe as while the Marshal has had his posse of specials in this Court House. Why, Sir, people have not felt it necessary to lock their doors at night, the brothels are tenanted only by women, fighting-dogs and racing-horses have been unemployed, and Ann street and its alleys and cellars show signs of a coming millennium.
"I congratulate, too, the Government of the United States, that its legal representative can return to his appropriate duties, and that his sedulous presence will no longer be needed here in a private civil suit for the purpose of intimidation, a purpose which his effort the day before yesterday showed every desire to effect, which although it did not influence this Court in the least, I deeply regret that your Honor did not put down at once, and bring to bear upon him the judicial power of this tribunal. I congratulate the Marshal of the United States that the ordinary respectability of his character is no longer to be in danger from the character of the associates he is obliged to call about him. I congratulate the officers of the army and navy that they can be relieved from this service, which as gentlemen and soldiers surely they despise, and can draw off their non-commissioned officers and privates, both drunk and sober, from this fortified slave-pen to the custody of the forts and fleets of our country, which have been left in peril, that this great Republic might add to its glories the trophies of one more captured slave."
With this introduction, Mr. Dana proceeded to his argument. The Commissioner had declared in the outset that he should presume the prisoner to be a freeman until he was proved a slave. To this declaration Mr. Dana held the Court. Upon it he rested his hopes. It was for the claimant, therefore, to furnish evidence that the prisoner was his slave. He had described a certain slave belonging to him--was the prisoner that slave? This was a question of identity. But on the point of identity men were liable to be mistaken--actually had been mistaken. Jacob had been mistaken for Esau by his own father. The history of slave-catching furnished examples of terrible mistakes of this sort. A freeman named Gibson had been remanded from Philadelphia to Maryland as a slave. Another named Freeman had been sent into slavery from Indiana. With such impressive instances on record, it was all important to guard against any mistake. What evidence of identity in this case had Suttle furnished? First and chiefly, there was Brent's testimony. But Brent had not been favorably situated for identifying Burns. Then, the description in the record was relied upon; but the description was loose, and the record itself was probably nothing but Brent on paper. It was further said, that Brent's liability to bias as a Virginian should be taken into consideration.
"But," continued Mr. Dana, "there is fortunately one fact of which Mr. Brent is sure. He knows that he saw this Anthony Burns in Richmond, Virginia, on the twentieth day of March last, and that he disappeared from there on the twenty-fourth. To this fact he testified unequivocally. After all the evidence is put in on our side to show that the prisoner was in Boston on the first and fifth of March, he does not go back to the stand to correct an error, or to say that he may have been mistaken, or that he only meant to say that it was about the twentieth or twenty-fourth. He persists in his positive testimony, and I have no doubt that he is right and honest in doing so. He did see Anthony Burns in Richmond, Virginia, on the twentieth day of March, and Anthony Burns was first missing from there on the twenty-fourth. But the prisoner was in Boston, earning an honest livelihood by the work of his hands, through the active month of March, from the first day forward. Of this your Honor cannot, on the proofs, entertain a reasonable doubt."
Mr. Dana proceeded to review the testimony introduced by the defence on this point. The principal witness was Jones. He had sworn with great particularity of detail that the prisoner was seen by him in Boston on the first day of March, and was at work with him in his employ on the fifth and eighteenth of the same month, in the same city. He could not be mistaken respecting the man's identity. This testimony was vital, and was either the truth, or a pure fabrication. "I saw at once," said Mr. Dana, "as every one must have seen, that the story so full of details, with such minuteness of names, and dates, and places, must either stand impregnable, or be shattered to pieces. The severest test has been applied. The other side has had a day in which to follow up the points of Jones's diary, and discover his errors and falsehoods. But he is corroborated in every point."
Having passed in review the testimony of the other witnesses confirming that of Jones, the advocate proceeded to set forth the cumulative effect of such an array of witnesses. "On a question of identity" said he, "numbers are everything. One man may mistake by accident, design, or bias. His sight may be poor, his observation imperfect, his opportunities slight, his recollection of faces not vivid. But if six or eight men agree on identity, the evidence has more than six or eight times the force of one man's opinion. Each man has his own mode and means and habits of observation and recollection. One observes one thing, and another another thing. One makes this combination and association, and another that. One sees him in one light, or expression, or position, or action, and another in another. One remembers a look, another a tone, another the gait, another the gesture. Now if a considerable number of these independent observers combine upon the same man, the chances of mistake are lessened to an indefinite degree. What other man could answer so many conditions presented in such various ways? On the point of the time and the place, too, each of those witnesses is an independent observer. These are not links in one chain, each depending on another. They are separate rays, from separate sources, uniting on one point."
In concluding this. part of his argument, Mr. Dana inquired: "If the burden of proof had been upon us, should we not have met it? How much more, then, are we entitled to prevail where we have only to shake the claimant's case by showing that it is left in reasonable doubt?"
A new and independent line of argument was now taken. "Throw out," said Mr. Dana, "all of our testimony and rest the case on the claimant's evidence alone." Two questions were to be met: Did the prisoner owe service to Suttle? Did he escape from Virginia into Massachusetts? The claimant offered the record of the Virginia Court as conclusive on both these points. It was agreed that such would be its effect if the proper mode of proceeding was adopted. The fugitive slave act provided two methods. By the tenth section the questions of slavery and escape were to be tried ex parte, in the state from which the person escaped; and the record of this was to be conclusive. By the sixth section, the same questions might be tried in the state where the escaping person was found. These were distinct, independent methods, and the claimant was at liberty to proceed under either. He had, however, proceeded under both; he had attempted to prove the facts of slavery and escape by parole and other evidence before the Commissioner, and he had also offered the Virginia record as conclusive of the same facts. But this was inadmissible. The two methods could not be thus combined . The structure of the statute plainly implied the reverse. Having elected to proceed under the sixth section, the claimant was no longer at liberty to introduce his record under the tenth.
But, if the record were considered as admissible in other respects, and conclusive if admitted, it was still objectionable both in form and substance. It did not purport to be a record of the matters proved. It did not describe the person with such convenient certainty as might be. It did not allege that he escaped into another state. "On one or more of these points," said Mr. Dana, "we have great confidence that the record will be excluded, or that, if admitted, we may control it by the claimant's own testimony."
One part of the testimony showed that Burns, at the time of his escape, owed service, not to Suttle, but to Millspaugh. He was leased to Millspaugh. This was in flat contradiction to the record. What right then had Suttle to claim Burns? Until the lease expired, Millspaugh had the sole right of possession and control. "Mr. Millspaugh," argued Mr. Dana, "may allow him to come to Massachusetts and stay here until the end of the lease, if he chooses. Col. Suttle has nothing to say about it." But this was not all. The testimony of Brent showed that Burns had been mortgaged, and there was no evidence before the Commissioner that the mortgage bad been discharged. On this ground, also, Suttle was precluded from interfering.
An essential element in the claimant's case was the escape. Had there been any escape? There was no evidence of the fact. To constitute an escape, two things must concur: that the person came away, first, of his own will, and second, against his master's will. The claimant had introduced evidence showing that Burns had not escaped of his own will; and by that evidence he was bound. Respecting Millspaugh, his master for the time, and the only person having a right at the time to say whether he should go or come, no evidence at all had been introduced. A case of escape, then, had not been made out, and as, by the decisions of the Courts, the escape is the casus faederis under the constitution, the prisoner could not rightfully be sent back to Virginia.
The admissions of Burns were last considered. They were made under extraordinary circumstances. The prisoner was overwhelmed with terror. They rested on the evidence of a single witness testifying under the strongest bias, and who, in regard to one part of the admissions which he swore to, had been proved to have been mistaken. But, under any circumstances, the Commissioner should have ruled them out. Reason, humanity, and precedent, required that they should not be received.
On the constitutional question, Mr. Dana said he should offer the propositions in the same form in which they were cast by Mr. Rantoul in the Sims' case, and not argue them at all, putting them forward as a continued protest:
- That the power which the Commissioner is called upon in this procedure to exercise is a judicial power, and one that, if otherwise lawful, can be exercised only by a judge of the United States Court, duly appointed, and that the Commissioner is not such a judge.
- That the procedure is a suit between the claimant and captive, involving an alleged right of property on the one hand, and the right of personal liberty on the other, and that either party, therefore, is entitled to trial by jury; and the law which purports to authorize a delivery of the captive to the claimant, denying him the privilege of such a trial, and which he here claims under judicial process, is unconstitutional and void.
III. That the transcript of testimony taken before the magistrates of a state court in Georgia, and of the judgment thereupon by such magistrates, is incompetent evidence, Congress having no power to confer upon state courts or magistrates judicial authority to determine, conclusively or otherwise, upon the effect of evidence to be used in a suit pending or to be tried in another state, or before another tribunal.
- That such evidence is also incompetent, because the captive was not represented at the taking thereof, and had no opportunity for cross-examination.
- That the statute under which the process is instituted is unconstitutional and void, as not within the power granted to Congress by the Constitution, and because it is opposed to the express provisions thereof.
Mr. Dana closed with an impressive appeal to the Commissioner. "You recognized, Sir," said he, "in the beginning, the presumption of freedom. Hold to it now, Sir, as to the sheet anchor of your own peace of mind, as well as of the prisoner's safety. If you make a mistake in favor of the prisoner, a pecuniary value, not great, is put at hazard. If against him, a free man is made a slave. If you have, on the evidence or on the law, the doubt of a reasoning and reasonable mind, an intelligent misgiving, then, Sir, I implore you, in view of the cruel character of this law, in view of the dreadful consequences of a mistake, send him not away with that tremendous doubt on your mind. It may turn to a torturing certainty. The eyes of many millions are upon you, Sir. You are to do an act which will hold its place in the history of America, in the history of the progress of the human race. May your judgment be for liberty and not for slavery; for happiness and not for wretchedness; for hope and not for despair: and may the blessing of him that is ready to perish come upon you."
Seth J. Thomas closed the case for the claimant. After a congratulatory exordium, confessedly in imitation of Mr. Dana's, he proceeded as follows:
"The claimant in this case, Charles F. Suttle, says he is of Alexandria, in the state of Virginia; that, under the laws of that state, he held to service and labor one Anthony Burns, a colored man; that, on or about the twenty-fourth day of March last, while so held to service by him, the said Anthony escaped from the said state of Virginia, and that he is now here in court. He prays you (the Commissioner) to hear and consider his proofs in support of this his claim, and, if they satisfactorily support it, that you will certify to him, under your hand and seal, that he has a right to transport him back to Virginia. This is his whole case; this is all that he asks you to do. Under your certificate, he may take him back to the place from whence he fled; and he can in virtue of that take him no where else.
"Now, to entitle the claimant to this certificate, what must he prove? Two things. First, that Burns owed service and labor to him, the claimant. Second, that he escaped. How is he to prove these? The statute answers. He may apply to any court of record in Virginia, or judge thereof in vacation, and make satisfactory proof to such court or judge that Burns owes service or labor to him, and that he escaped. The court shall then cause a record to be made of the matter so proved, and also a general description of the person, with such convenient certainty as may be; and a transcript of such record, authenticated by the attestation of the seal of the court, being produced here where the person is found, and being exhibited to you, is to be taken by you as conclusive of the facts of escape and of service due. And upon the production by the claimant of other and further evidence, if necessary, in respect to the identity of the person escaping, he is to be delivered up to the claimant, with a certificate of his right to take him back; or his claim may be heard upon other satisfactory proofs competent in law.
"Such are the requirements. How have we met them? We have put in the transcript of a record. It is duly authenticated, and is conclusive upon the court of the two facts therein recited viz., that the claimant held one Anthony Burns to service or labor, and that he escaped. These two facts .are not open here. Then the question remains, is the person at the bar, Anthony Burns, as he is called,--nobody thinks of calling him anything else,--is he the Anthony Burns named in the record? If he is, there is an end of the case. The claim is made out and the certificate must follow. This, with simple proof of identity, would have been all that, in an ordinary case, counsel would have deemed it necessary to do."
But this was an extraordinary case; and Mr. Thomas proceeded to say that, in addition to the record and proof of identity, be had deemed it proper to put in the testimony of Brent, and the admissions of Burns. As to the question of identity, there was the description in the record. This had been objected to by the opposing counsel as being loose, general in its terms, and defective in important particulars. Mr. Thomas contended that it was sufficiently exact to warrant its exclusive application to the prisoner.
He next considered the array of testimony presented by the defence to prove that Burns was in Massachusetts during the whole month of March, and that consequently Brent's story could not be true. The leading witness was Jones, the colored man. His testimony was disposed of by the attorney's simple declaration that it was "a story manufactured for the case." But there were seven other witnesses who had corroborated that "story." These were disposed of in an equally summary manner. "Jones," said the claimant's counsel, "went to them and asked them if they did not remember the man he had with him cleaning the windows [at the Mattapan Works], told them this was the man, impressed them with this fact. They came into court with this impression, and made up their minds that he was."
Having thus insisted that the unimpeached testimony for the defence was based upon combined falsehood and delusion, he proceeded by implication to admit its truth. Its force was too great, apparently, even for himself. "Brent," said he, " may possibly be mistaken as to the date." But, the date was not material after all. "A crime of a high nature even may be charged to have been done on the twenty-fourth of March, and proved to have been done on the twenty-fourth of February." Brent could not be mistaken as to the identity. But there was something stronger still--the prisoner's own admissions. Even if it were possible for Brent to be mistaken on the point of identity, such a mistake on the prisoner's part was not possible, and he had admitted that he was Suttle's slave.
The counsel for the defence had contended that, if Anthony owed service at all, it was not to Suttle but to Millspaugh. "If he is the man described," said Mr. Thomas, "that is not open to inquiry. It had been said that under the Commissioner's certificate Anthony might be carried, not to Virginia, but to Cuba or Brazil. They do not tell us how," replied Mr. Thomas. "If he is carried to Cuba, it will not be by your certificate." It had been said that the certificate would send him into eternal bondage. "It is enough to say," replied Mr. Thomas, "that it will send him to Virginia whence he came. When he gets there, he will have the same rights that he had before he came here. If that State don't sufficiently guard his rights, the fault is not yours nor mine." It had been said that the fugitive slave law was unconstitutional. But, replied Mr. Thomas, it has been held to be constitutional by the Supreme Court of Massachusetts, and by every judge before whom a case under it has arisen.
"It remains only," said Mr. Thomas, "that I recapitulate the points already stated. The record is conclusive of two facts, that the person owed service, and that he escaped. That record, with the testimony of Brent and the admissions of Burns, proves the identity. I take leave of the case, confident in the proofs presented, confident in the majesty of the law, and confident that the determination here will be just."
At the conclusion of Mr. Thomas's argument, the court was adjourned until Friday morning, the second of June.
CHAPTER VII.
THE DECISION.
DURING Thursday, June first, the popular excitement visibly abated. The unexpected testimony in behalf of Burns had produced a general persuasion that the Commissioner's decision would be made in his favor, and the bare anticipation of this had contributed not a little to compose the public mind. A single incident, however, pointed with ominous certainty to a different result; Early on Friday morning, Burns was presented with a complete new suit of clothes by Butman and the others who had assisted at his capture, A foreknowledge of his impending fate had betrayed them into an act of generosity which would never have been performed, had they believed that he would be suffered to remain on the soil where he had been honestly earning as much, probably, as any of themselves. They imitated the ancient priests by adorning the victim whom they were about to sacrifice.
Arrayed in this holiday garb, Burns was conducted for the last time into the United States court-room. Since Wednesday night, a double guard had been placed over him, and they now attended him to the dock. Increased precautionary measures besides had been provided by the Marshal. Soldiers with fixed bayonets filled all the avenues, and bullies armed with bludgeons and pistols crowded the court-room. One at a time, members of the bar, reporters for the press, friends of the prisoner, and favored citizens, defiled beneath crossed bayonets and occupied their places.
At nine o'clock, Commissioner Loring took his seat upon the bench. His countenance wore a haggard and jaded aspect, his port and bearing were not those of a judge clear in his great office. Hardly glancing at the assembly before him, amidst profound stillness he immediately began to read his decision. It was in the following words:
THE DECISION.
"The issue between the parties arises under the United States statute of 1850, and for the respondent it is urged that the statute is unconstitutional. Whenever this objection is made, it becomes necessary to recur to the purpose of the statute. It purports to carry into execution the provision of the Constitution, which provides for the extradition of persons held to service or labor in one state, and escaping to another. It is applicable, and it is applied alike to bond and free, to the apprentice and the slave; and in reference to both, its purpose, provisions, and processes are the same.
"The arrest of the fugitive is a ministerial and not a judicial act, and the nature of the act is not altered by the means employed for its accomplishment. When an officer arrests a fugitive from justice, or a party accused, the officer must determine the identity, and use his discretion and information for the purpose. When an arrest is made under this statute, the means of determining the identity are prescribed by the statute; but when the means are used and the act is done, it is still a ministerial act. The statute only substitutes the means it provides, for the discretion of an arresting officer, and thus gives to the fugitive from service a much better protection than a fugitive from justice can claim under any law.
"If extradition is the only purpose of the statute, and the determination of the identity is the only purpose of these proceedings under it, it seems to me that the objection of unconstitutionality to the statute, because it does not furnish a jury trial to the fugitive, is answered; there is no provision in the Constitution requiring that the identity of the person to be arrested should be determined by a jury. It has never been claimed for apprentices or fugitives from justice, and if it does not belong to them, it does not belong to the respondent.
"And if extradition is a ministerial act, to substitute, in its performance, for the discretion of an arresting officer, the discretion of a Commissioner instructed by testimony under oath, seems scarcely to reach to a grant of judicial power, within the meaning of the United States Constitution. And it is certain that if the power given to, and used by, the Commissioner of United States Courts under the statute is unconstitutional, then so was the power given to, and used by, magistrates of counties, cities and towns, and used by the act of 1793. These all were Commissioners of the United States; the powers they used under the statute, were not derived from the laws of their respective states, but from the statute of the United States. They were commissioned by that, and that alone. They were commissioned by the class instead of individually and by name, and in this respect the only difference that I can see between the acts of 1793 and 1850, is, that the latter reduced the number of appointees, and confined the appointment to those who, by their professional standing, should be competent to the performance of their duties, and who bring to them the certificates of the highest judicial tribunals of the land.
"It is said the statute is unconstitutional, because it gives to the record of the court of Virginia an effect beyond its constitutional effect. The first section of the fourth article of the Constitution is directory only on the State power, and as to the State courts, and does not seek to limit the control of Congress over the tribunals of the United States or the proceedings therein. Then in that article the term, 'records and judicial proceedings,' refers to such inter partes, and of necessity can have no application to proceedings avowedly ex parte. Then if the first section includes this record, it expressly declares as to 'records and judicial proceedings' that Congress shall prescribe 'the effect thereof,' and this express power would seem to be precisely the power that Congress has used in the statute of 1850.
"Other constitutional objections have been urged here, which have been adjudged and re-adjudged by the Courts of the United States, and of many of the states; and the decisions of these tribunals absolve me from considering the same questions further than to apply to them the determination of the Supreme Court of this state in Sims' case, 7 Cushing 309, that they 'are settled by a course of legal decisions which we are bound to respect, and which we regard as binding and conclusive on this Court.'
"But a special objection has been raised to the record that it describes the escape as from the State of Virginia, and omits to describe it as into another State, in the words and substance of the Constitution. But in this the record follows the tenth section of the statute of 1850, and the context of the section confines its action to cases of escape from one state, &c., into another, and is therefore in practical action and extent strictly conformable to the Constitution.
"This statute has been decided to be constitutional by the unanimous opinion of the Judges of the Supreme Court of Massachusetts on the fullest argument and maturest deliberation, and to be the law of Massachusetts, as well as, and because it is a constitutional law of the United States; and the wise words of our revered Chief Justice in that case, 7 Cushing, 318, may well be repeated now, and remembered always. The Chief Justice says:
" 'Slavery was not created, established, or perpetuated, by the Constitution; it existed before; it would have existed if the Constitution had not been made. The framers of the Constitution could not abrogate slavery, or the rights claimed under it. They took it as they found it, and regulated it to a limited extent. The Constitution, therefore, is not responsible for the origin or continuance of slavery; the provision it contains was the best adjustment which could be made of conflicting rights and claims, and was absolutely necessary to effect what may now be considered as the general pacification, by which harmony and peace should take the place of violence and war. These were the circumstances, and this the spirit, in which the Constitution was made; the regulation of slavery, so far as to prohibit States by law from harboring fugitive slaves, was an essential element in its formation, and the Union intended to be established by it was essentially necessary to the peace, happiness, and highest prosperity of all the States. In this spirit, and with these views steadily in prospect, it seems to be the duty of all judges and magistrates to expound and apply these provisions in the Constitution and laws of the United States, and in this spirit it behoves all persons bound to obey the laws of the United States, to consider and regard them.'
"It is said that the statute, if constitutional, is wicked and cruel. The like charges were brought against the act of 1793; and Chief Justice Parker, of Massachusetts, made the answer which Chief Justice Shaw cites and approves, viz :--'Whether the statute is a harsh one or not, it is not for us to determine.'
"It is said that the statute is so cruel and wicked that it should not be executed by good men. Then into what hands shall its administration fall, and in its administration, what is to be the protection of the unfortunate men who are brought within its operation? Will those who call the statute merciless, commit it to a merciless judge?
"If the statute involves that right, which for us makes life sweet, and the want of which makes life a misfortune, shall its administration be confined to those who are reckless of that right to others, or ignorant or careless of the means given for its legal defence, or dishonest in their use? If any men wish this, they are more cruel and wicked than the statute, for they would strip from the fugitive the best security and every alleviation the statute leaves him.
"I think the statute constitutional, and it remains for me now to apply it to the facts of the case. The facts to be proved by the claimant are three:
"First, That Anthony Burns owed him service in Virginia. Second, That Anthony Burns escaped from that service. These facts he has proved by the record which the statute, section tenth, declares 'shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned.' Thus these two facts are removed entirely and absolutely from my jurisdiction, and I am entirely and absolutely precluded from applying evidence to them. If, therefore, there is in the case evidence capable of such application, I cannot make it.
"The third fact is, the identity of the party before me with the Anthony Burns mentioned in the record.
"This identity is the only question I have a right to consider. To this, and to this alone, I am to apply the evidence; and the question whether the respondent was in Virginia or Massachusetts at a certain time, is material only as it is evidence on the point of identity. So the parties have used it, and the testimony of the complainant being that the Anthony Burns of the record was in Virginia on the nineteenth of March last, the evidence of the respondent has been offered to show that he was in Massachusetts on or about the first of March last, and thereafter till now.
"The testimony of the claimant is from a single Witness, and he standing in circumstances that would necessarily bias the fairest mind; but other imputation than this has not been offered against him, and, from anything that has appeared before me, cannot be. His means of knowledge are personal, direct, and qualify him to testify confidently, and he has done so.
"The testimony on the part of the respondent is from many witnesses whose integrity is admitted, and to whom no imputation of bias can be attached by the evidence in the case, and whose means of knowledge are personal and direct, but in my opinion less full and complete than that of Mr. Brent.
"Then, between the testimony of the claimant and respondent there is a conflict, complete and irreconcilable. The question of identity on such a conflict of testimony is not unprecedented nor uncommon in judicial proceedings, and the trial of Dr. Webster furnished a memorable instance of it.
"The question now is, whether there is other evidence in this case which will determine this conflict. In every case of disputed identity there is one person, always, whose knowledge is perfect and positive, and whose evidence is not within the reach of error; and that is the person whose identity is questioned, and such evidence this case affords. The evidence is of the conversation which took place between Burns and the claimant on the night of the arrest.
"When the claimant entered the room where Burns was, Burns saluted him, and by his Christian name:-- 'How do you do, Master Charles?' He saluted Mr. Brent also, and by his Christian name:--'How do you do, Master William?' (To the appellation 'Master' I give no weight.)
"Colonel Suttle said,--'How came you here?' Burns said an accident had happened to him; that he was working down at Roberts', on board a vessel, got tired and went to sleep, and was carried off in the vessel. 'Anthony, did I ever whip you?'--'No, sir.'--'Did I ever hire you out where you did not wish to go?'--'No, sir.'--'Have you ever asked me for money when I did not give it to you?'--'No, sir.'--'When you were sick, did I not prepare you a bed in my own house and put you upon it and nurse you?'--'Yes, sir.' Something was said about going back. He was asked if he was willing to go back, and he said, 'Yes, he was.'
"This was the testimony of Mr. Brent. That a conversation took place, was confirmed by the testimony of Caleb Page, who was present, and added the remark, that Burns said he did not come in Capt. Snow's vessel. The cross-examination of Brent showed that Col. Suttle said, 'I make you no promises and I make you no threats.'
"To me this evidence, when applied to the question of identity, confirms and establishes the testimony of Mr. Brent in its conflict with that offered on the part of the respondent; and then, on the whole testimony, my mind is satisfied beyond a reasonable doubt of the identity of the respondent with the Anthony Burns named in the record.
"It was objected that this conversation was in the nature of admissions, and that too of a man stupefied by circumstances and fear, and these considerations would have weight had the admissions been used to establish the truth of the matters to which they referred, i. e., the usage, the giving of money, nursing, &c.; but they were used for no such purpose, but only as evidence in reference to identity. Had they been procured by hope or fear they would have been inadmissible; but of that I considered there was no evidence.
"On the law and facts of the case, I consider the claimant entitled to the certificate from me which he claims."
The Commissioner folded his manuscript and prepared to take his departure. But the auditors remained in their places, and for some moments the dead silence continued unbroken. Then, as at a funeral, one and another went quietly to Burns, whispered a word of sympathy, and bade him farewell; and gradually, the court-room was vacated by all but the Marshal, his aids, and the prisoner.