Report of the Proceedings at the Examination of Charles G. Davis, Esq., on the Charge of Aiding and Abetting in the Rescue of a Fugitive Slave: Held in Boston, in February, 1851.

by Charles G. Davis; United States. Circuit Court

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.