CHAPTER IV
HOW MASSACHUSETTS IN 1854 SURRENDERED THE
FUGITIVE SLAVE ANTHONY BURNS
It was in May, 1854, that Anthony Burns of Virginia was arrested in Boston as a fugitive slave and brought before Judge Loring, United States Commissioner under the Fugitive Slave Act of 1850. I am not going to re-tell the familiar story of his so-called trial and of the surrender of Burns to Colonel Suttle, also of Virginia. The actual military rank held by Suttle I do not know, but I call him Colonel on general principles; or on the principle announced by the late Max O'Rell in his book on America; with its population of sixty millions; "la plupart des colonels." But I will tell what I saw; and what sort of impression the event made at the time upon an eye-witness who belonged to the dominant and most conservative party in the State; the Whig party.
The arrest of Burns made a stir in the old Commonwealth comparable to none other which had occurred down to that time. From Worcester, where I was then reading more or less law with Mr. Hoar, I went to Boston to look on at these proceedings. I went from no particular feeling of sympathy with Burns, nor yet mainly from abhorrence of that subservience to slaveholders in which, until after Webster's Seventh of March speech in 1850, Massachusetts had been steeped. I went from curiosity. I wanted to see how the legal side of it was managed. For though the popular dislike of such proceedings, which neither the Shadrach nor the Sims case had fully roused, was then slumbering, the State had, so long ago as 1843, passed a law forbidding any judge or other officer holding a commission from the State to take any part in the rendition of any person claimed as a fugitive slave under the old Act of Congress of 1793. Yet here was a Massachusetts Judge of Probate sitting as United States Commissioner and doing the work which in the South itself was done by bloodhounds, and by the basest of mankind. I thought I should like to see how such a man looked while engaged upon that task; the more so as he bore a good Massachusetts name; and what kind of a trial a fugitive slave was to have on Massachusetts soil.
Burns was seized on a Wednesday evening, May 24th. He appeared before Judge Loring at nine o'clock Thursday morning, handcuffed, between two policemen. It was obviously intended that the "trial" should begin and end that same morning. Burns had been allowed to see nobody. He had no counsel. When Robert Morris, a coloured lawyer, tried to speak to him the policemen drove him away. By chance, Mr. Richard H. Dana, Jr., and another lawyer of repute, Mr. C. M. Ellis, heard of what was going on, and went to the court-room. Dana intervened, not as counsel, for he had no standing as counsel, but as amicus curiæ, and asked that the hearing be postponed and that Burns be allowed to consult friends and counsel. The black man sat there "stupefied and terrified," as Dana said, incapable of thought or action. After repeated protests by Dana and Ellis, Judge Loring put off the hearing till Saturday. But Burns was still kept in secret confinement. When Wendell Phillips asked to see him to arrange that he should have counsel, the United States Marshal refused. Phillips went to Cambridge to see Judge Loring, and Judge Loring gave him an order of admission to the cell. But he said to Phillips—this Judge-Commissioner said of the cause he was about to try judicially—
"Mr. Phillips, the case is so clear that I do not think you will be justified in placing any obstacle in the way of this man's going back, as he probably will!"
A remark without precedent or successor in Massachusetts jurisprudence, which, before and since, has ever borne an honourable renown for judicial impartiality.
When I went to the Court House on the Saturday it had become a fortress. There were United States Marshals and their deputies, police in great numbers, and United States Marines. The chain had not then been hung about the building nor had Chief Justice Shaw yet crawled beneath it. I was allowed to enter the building, and to go upstairs to the corridor on the first floor, out of which opened the door of the court-room where Burns was being tried, not for his life, but for freedom which was more than life. There I was stopped. The police officer at the door would listen to nothing. The court-room, free by law and by custom to all citizens, was closed by order, as I understood, not of the Commissioner who was holding his slave-court, but by the United States Marshal, who was responsible for the custody of Burns and alarmed by the state of public opinion. While I argued with the police, there came up a smart young officer of United States Marines. He asked what it was all about. I said I was a law student and wished to enter. "Admit him," said the officer of United States Marines. He waited till he saw his order obeyed and the police stand aside from the door; then bowed to me and went his way. So it happened that it was to an officer of an armed force of the United States that I was indebted for the privilege of entering a Massachusetts court-room while a public trial was going on.
Inside they were taking testimony. Mr. Dana and Mr. Ellis were now acting as counsel for Burns, who still seemed "stupefied and terrified." The testimony was only interesting because it concerned the liberty of a human being. Judge Loring sat upon the bench with, at last, an anxious look as if he had begun to realize the storm that was raging outside, and the revolt of Massachusetts against this business of slave-catching by Massachusetts judges. I spoke for a moment with Mr. Dana and then with one or two of the anti-slavery leaders who sat listening to the proceedings. That sealed my fate. When I returned after the adjournment I was again refused admission, and ordered to leave the Court House. When I told the Deputy Marshal I had as much right there as he had and would take no orders from him, he threatened me with arrest. But of this he presently thought better, and finding all protest useless, I went away.