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.