THE DECISION JUDGE LORING MIGHT HAVE GIVEN
by Richard H. Dana, Jr., the attorney for Anthony Burns (published in the Boston Atlas)
- COMMISSIONER LORING came in at 9 o'clock, and, the parties being all present, pronounced the following DECISION.
The question submitted to my decision is, whether I shall award to the claimant, Charles F. Suttle, a certificate, authorizing him, to take and carry to Virginia the respondent, Anthony Burns, whom he claims as owing him service and labor. The kind of service which he sets up is that of a slave.
The respondent's counsel have objected to the constitutionality of the act of 1850, under which these proceedings are held, and to my right to act in the premises, on several grounds.
[The Commissioner then stated the points of objection and overruled them successively, and declared his opinion to be that, upon the precedents, he was bound to hold the statute constitutional in all the points affecting this case. We omit his decision on these points, as being of less immediate interest.]
The facts to be proved by the claimant are three: 1. That Anthony Burns was his slave by the law of Virginia; 2. That Anthony Burns escaped from slavery in Virginia; 3. That the prisoner is the Anthony Burns in question.
To prove the first point, the claimant introduces one witness, Mr. William Brent, of Virginia. Mr. Brent's testimony shows that Burns has stood in the relation of a slave to Col. Suttle from his boyhood. It also shows that, at the time of the alleged escape, Col. Suttle had leased Burns to one Millspaugh of Richmond, and that Burns was then, and had for some time been, in the custody and under the control of Millspaugh, and that he escaped, if at all, from the custody and service of Millspaugh. It is objected by the defendant's counsel, that this evidence shows that Col. Suttle is not entitled to the certificate. This raises, certainly, a serious question. By the law of Virginia, slaves are chattels, and the lessee of the chattel, being in possession, has the sole and exclusive right, against the general owner himself, to the possession and control of the chattel during the lease. The constitutionality of this statute is sustained on the ground that the decision in these proceedings affects merely the possession and temporary control of the party claimed, and does not affect the general property or title. If it were otherwise, it would constitute a suit at law, and a trial by jury would be necessary. It would seem, therefore, quite clear that upon the claimant's own theory, Mr. Millspaugh, and not he, is the person entitled to claim this certificate. If Mr. Millspaugh and Col. Suttle were to interplead before me, each claiming the certificate, I cannot doubt that I should be obliged to grant it to the former.
To prove the second point, viz.; the escape, the claimant also offers the evidence of Mr. Brent. Mr. Brent says only that Burns was in Richmond up to the 24th day of March, and was then and ever since "missing." He does not say that he went away without the leave of Mr. Millspaugh, who alone had the right to control his movements, and how or why he was missing. To explain the act of Burns, they offer evidence of his conversation with Col. Suttle, on the night of his arrest. In this conversation he says that he did not escape; but that, being on board a vessel at work, he was tired and fell asleep, and was brought off by accident. Now this story may not be true, but it is put in by the claimant, and it is the very evidence tending to explain the act of Burns, and the claimant is bound by it. Therefore, the claimant's evidence not only fails to show an escape, but shows affirmatively that there was no escape. To entitle the claimant to his certificate, there must be, both by the Constitution and the statute, an escape. It is of no consequence how or why the slave came into a free state,-- whether by accident or mistake, or by a superior power; unless he escaped by his own voluntary act, against the will of his master, the casus faederis does not arise. (Sims' case, 7 Cush. 298.)
On the oral evidence, then, the claimant must fail on the second requirement of the statute, even if the point as to the lease were not sustained.
But the claimant puts into the case a transcript of a record made out ex-parte, in Virginia, in pursuance of the 10th section of the act of 1850. This act declares that this record "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." The record sets forth that Anthony Burns does owe service and labor to Col. Suttle by a law of Virginia, and that he escaped from such service and labor in Virginia. If, then, this record is to be received, and to have its full statutory effect, the title and escape are established, and the only question open to me is that of identity. But I should be slow to believe that any statute of this land was intended to make an ex-parte record conclusive against the proof actually made by the party who offers it, on a trial in presence of both parties.
Here is a trial, with witnesses on the stand, in presence of both parties, and the claimant's own proof shows him not entitled to prevail. Can it be that be may fall back upon proof offered at an ex-parte hearing, previously and elsewhere, and contradict and control his own proof here, and compel the Court to decide against the evidence? The defendant's counsel contend that by offering proof of the title and escape, other than the record, the claimant proceeds under the 6th section, and not the 10th, and is not entitled to use the record, the two sections providing for separate and distinct proceedings; also that the conclusiveness of the record cannot apply to the claimant's own proof, but only prohibits the defendant from controverting the record by proof. They also object to the instrument on the ground that it is not a record, but only a recital that there is a record which is not produced, and because it does not describe the party with "convenient certainty," as required by the statute, inasmuch as it does not say whether he is a white, a negro, an Indian, or a mulatto, but only that he is "dark-complexioned." If on anyone of these grounds of objection the record is not received, or not allowed to have conclusive effect, the claimant must fail, because no escape has been proved, to say nothing of the objection as to the lease.
Without deciding, at present, whether the record is to be received or not, I will pass to the question of identity.
The testimony of the claimant is from a single witness, and he standing in circumstances which 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 furnishes 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 is offered in this case. The evidence is of the conversation which took place between Burns and the claimant on the night of the arrest.
It may be conceded that this evidence, if received and allowed its full weight, would establish the identity of the prisoner with the Anthony Burns named in the record, beyond a reasonable doubt. The conversation took place very shortly after the arrest of Burns, at the time he first discovered that he was claimed as a slave, and while he was in custody. The only person examined as to his state of mind, a witness for the claimant, says that at first Burns appeared intimidated, but latterly had been entirely composed. Of course this state of intimidation applies to the time of the conversation, which was at the first moment he knew he was held as a slave; and I remember that the next morning I thought him in such a state as to require me to allow him an adjournment, in order to make up his mind what course he would pursue. It is said that the language of Col. Suttle to him, 'I make you no promises and no threats--I make no compromises with you,' may be considered as intimidating in its character, or at least as intimating to the Prisoner that his treatment hereafter would be according to his conduct there; and I am requested to rule out this evidence, on the ground that the admissions of an alleged slave to his master, while in custody during a trial for his freedom, are not legal evidence for the claimant, and on the further ground that, if not objectionable on general rules, there is evidence here of actual duress and influence. Another objection is, that the conversation put in by the claimant is entire, and that if any part of it is received, the whole must be received. His conversation, taken at the worst for the respondent, asserts that he is the party named in the record, and was the slave of the claimant, but shows that he did not escape. It is an inflexible rule of law, founded in justice, that the whole of an admission must be taken together. If, therefore, I am to receive this conversation, while it would satisfy me of the identity, it would negative the escape. But .the claimant says the record is conclusive on the point of escape. If so, I must reject a portion of this conversation, because it conflicts with the record, and if I reject part on such grounds, by the claimant's act, must I not reject the whole? If so, the identity is not proved. The claimant's case is in this dilemma. If the record is received and is conclusive, it seems to me that I must reject the entire conversation, because I cannot take the part that convicts him if I must reject the part that acquits him, and the claimant fails because the identity is left in doubt. If the record is rejected, the entire conversation goes in, the identity is proved, but the escape is negatived. Therefore, whether the record is received or rejected, the claimant must fail.
Let me restate the conclusions to which I am led, on the several points. I think myself bound by the precedents to hold the statute constitutional, and to hold that I have jurisdiction in the premises. It is the inclination of my belief that this record, if otherwise sufficient, cannot be admissible as conclusive on the Court against the positive proof of the claimant himself, and that, without the aid of the conclusiveness of the record, the claimant has not proved an escape, or a right of possession in himself. On the point of identity, even if the title and escape were proved, there is a reasonable doubt on the evidence of the witnesses, and the burden of proof is on the claimant to establish the identity beyond all reasonable doubt. If the admissions of Burns were received and allowed full weight, it would remove this reasonable doubt. To say nothing of the objections to the competency of these admissions on general principles, or under the circumstances of this case, I am not willing to receive that part of a conversation which convicts a man, if I am obliged, by the act of the other party, to reject that part which acquits him. If, therefore, the record is received, the entire conversation goes out, and the identity is not proved. If the record is rejected, the entire conversation goes in and the identity is proved, but the title and escape are not proved. On any of these grounds I am prepared to place my decision. This result may be owing to the accidents and mistakes which sometimes attend legal testimony, and arise in the vicissitudes and complications of novel proceedings at law. But I am bound to know only the evidence legally before me. The certificate is refused and the prisoner must be discharged.