Virginia Hamilton (15 page)

A total of nine witnesses were called by the defense. Each of their testimonies contradicted William Brent's—that he had last seen Anthony Burns in Virginia on the twentieth of March.

At this point Seth Thomas tried to introduce rebutting evidence. He called Ben True, one of Anthony's guards, who would testify to certain statements that Anthony had made.

Richard Dana objected on the grounds that Anthony's admissions were made under guard and threat, and that they did not form a rebuttal.

The Commissioner ruled that the witness's testimony should be admitted.

Again he was ruling against the defense and Dana.

Ben True stated that Burns had said he had been in Boston about two months and that previously he had been in Richmond, Virginia.

The testimony on both sides was then closed for the day, and the court was adjourned until nine o'clock Wednesday morning.

In the late afternoon after the adjournment there was much excitement in and around the Court House. People were heard to say that Burns would go free, since the evidence so far was proof for the defense. The Southern slave owner could not possibly win, and another fugitive would not be stolen out of Boston.

18
May 31, 1854

ON WEDNESDAY, MAY 31,
Seth Thomas called several witnesses to rebut and disprove the
defense's testimony. A Mr. Cyrus Gould was sworn in. He stated, “Mr. Jones worked for me on the sixteenth and seventeenth of March. I was employed at the City Hall all the month of March. Jones worked there on the tenth two or three hours. I did not see Burns with Jones there at any time. There was no man working with him; two women were working with him.”

More rebutting evidence was given, all of it reinforcing William Brent's testimony that Anthony had been in Virginia on the twentieth of March.

Dana then objected that the admissions of a man under arrest should be received at all. He objected that it was not rebutting testimony, that the evidence that Burns was in Boston on the 1st of March was contradictory to the testimony for the claimant that Burns was in Virginia on the twentieth of March. He said, “They, for the claimant, are now simply reinforcing their former testimony.”

Seth Thomas argued that this evidence, and Brent's testimony, proved the identity of Anthony
Burns, rather than establishing his whereabouts. “The defense proposes to prove an
alibi
,” Thomas said, the alibi being that the prisoner was seen in Boston when the claimant, Suttle, said he was in Virginia. “We introduce our evidence to control their evidence in support of the
alibi
.”

Dana renewed his objection.

Commissioner Loring ruled that the rebutting testimony was indeed opposing evidence and admissible. “But I give counsel notice that if I change my mind before the arguments, I will inform you.”

Richard Dana had been working up his final argument for the defense. He had written on backs of envelopes and scraps of paper. He felt angry and tired but not at all defeated by the course of the examination. He certainly hoped that Loring would change his opinion as to the admissions Burns had allegedly made. He also knew that in order for Suttle to be entitled to his certificate to return Anthony to slavery, the United States Constitution
and
the Fugitive Slave Act required proof of an
escape
.

Section Ten of the Fugitive Slave Act stated that a record had to show evidence of an escape and evidence that the person escaping owed service and labor to the party of the record—in this case, Charles Suttle.

But the evidence against Burns not only failed to show an escape, it in fact showed the opposite, that
there was no escape
.

Furthermore, the claimant was trying to prove the defendant's identity by using his words against him, when Section Six of the Fugitive Slave Act clearly stated that the testimony of the person claimed
could not be taken. William Brent's testimony might identify the alleged fugitive, Burns, but it also proved that Burns did not escape: According to Brent, Anthony Burns said he fell asleep and the boat sailed away with him. There was no
escape
.

And there was another point to be made: Section Six and Section Ten provided for separate and distinct proceedings.

Dana gathered his notes. He would speak from them today.

Ben Hallett had not been in court on Tuesday and had missed the parade of witnesses for the defense. When he heard how badly this “open-and-shut slave case” had turned, he was furious. He stormed over to the telegraph office hoping for some word from Washington, anything that would give him a good reason to keep the large force of United States military in place. Hallett knew that Major General B. F. Edmands, commander of all the battalions and regiments in Boston, was aware of this new turn of events in the Burns case. Edmands wanted to dismiss some of the more than one thousand troops in the city, now that everyone seemed to agree that the fugitive might not be one at all.

But before General Edmands could finish all the paperwork needed to dismiss the troops, Ben Hallett had his message by telegraph from Washington, It was addressed directly to him and it read:

INCUR ANY EXPENSE DEEMED NECESSARY BY THE MARSHAL OR YOURSELF FOR CITY MILITARY OR OTHERWISE, TO INSURE THE EXECUTION OF THE LAW. (SIGNED) FRANKLIN PIERCE, PRESIDENT OF THE UNITED STATES

On Wednesday morning the Adjutant General
of the Army, Colonel Cooper, arrived with Ben Hallett in the Mayor's office. Colonel Cooper was under personal orders from President Pierce to bring in two more companies of soldiers. As a result of this visit, the Mayor that same morning ordered the state militia to take up positions on Boston Common on Friday, June 2nd, the day Commissioner Loring would deliver his decision in the Burns case.

While this order was being signed by the Mayor, Richard Dana began to make his final plea for Anthony Burns.

The courtroom was quiet. The silence of the spectators showed their respect for the authority of Richard Dana.

Only Anthony did not know how renowned was his lawyer. But he was quite aware that what happened now would seal his fate.

Richard Dana stood before the court as a distinguished and powerful defender of the oppressed. He was the son of a poet and the grandson of a Chief Justice of Massachusetts. He believed in the Constitution, which states under Article IV of the Bill of Rights that people are protected against unreasonable seizures. Article V states that no one shall be deprived of liberty without due process of the law. Dana believed in Massachusetts law too, and knew it to be on the side of right and freedom for the enslaved. His opening was a stinging rebuke to the Commissioner and others in authority. “I congratulate you, sir, that your labors, so anxious and painful, are drawing to a close,” he said to Edward Loring.
“I congratulate the Commonwealth of Massachusetts that she is to be relieved from that dark demon 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 in due time by leave of the Marshal of the United States and the District Attorney of the United States, her courts may be reopened, and her judges and witnesses may pass and repass without being obliged to satisfy hirelings of the United States Marshal and other bayonetted men.

“I congratulate, too, the Government of the United States, that its legal representative, Mr. Hallett, can return to his duties and that his presence will no longer be needed here in a private civil suit for the purpose of intimidation of this tribunal.” Dana's voice shook with emotion, then steadied and calmed.

“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 now they can draw off their noncommissioned men, both drunk and sober, from this fortified slave pen back to their forts and fleets, which have been left in peril so that this great Republic might add the trophy of one more captured slave.”

Dana paused, looked long at Anthony with utter sympathy, and turned back to the Commissioner. Speaking softly, he said, “I offer these congratulations in the belief that the decision of Your Honor
will restore to freedom this man, the prisoner at the bar, whom fraud and violence found a week ago a free man on the soil of Massachusetts. We have a right to expect from Your Honor a strict adherence to the rule that this man is free until he is proved a slave beyond every reasonable doubt.

“We have before us a free man. Colonel Suttle says there was a man in Virginia named Anthony Burns; that this man is a slave by the law of Virginia; that he is
his
slave, owing service and labor to
him
; that he escaped from Virginia into this State, and that the prisoner at the bar is that Anthony Burns. He says all this. Let him prove it
all!
Let him fail in one point, let him fall short the width of a spider's thread, in the proof of all his horrid category, and the man goes free.

“The man they seek has never lived under Colonel Suttle's roof since he was a boy. He has always been leased out. He was under lease to a Mr. Millspaugh when he disappeared. As Colonel Suttle could not authorize Burns to leave Virginia, so neither could he forbid his leaving it. He has simply nothing to say about it. One part of the testimony showed that Burns, at the time of his alleged escape, owed service not to Suttle, but to Millspaugh. This was in flat contradiction to the record. What right then has Suttle to claim Burns? Until the lease expired, Millspaugh had the sole right of possession and control.

“The claimant's witness, Mr. Brent, puts his case resolutely, that the man he means was in Richmond up to the twentieth of March. We have proved that the prisoner was here on the first and fifth and tenth and eighteenth. The claimant must show that the prisoner owes service and labor to Colonel Suttle, by
the laws of Virginia, and that he escaped from that state into Massachusetts.

“Perhaps the claimant will say,” Dana continued, “that the record is final as to the facts of slavery and escape, and that the only point open is that of identity. That is so if he adopts the proper mode of proceeding to make it so. Section Ten of the Fugitive Slave Law provides that the questions of slavery and escape shall be tried in the state from which the man escaped and the record of this would be final.

“Section Six of the Fugitive Slave Law provides an entirely different proceeding. It authorizes the Court here to try the questions of slavery and escape, as well as identity, in this state, where the escaping person was found.

“Now which proceeding are we under?” Dana asked. “Doubtless under that provided in the Sixth Section. The claimant introduces Mr. Brent, and by him means to prove the fact of slavery, ownership by Colonel Suttle, and the escape. This evidence was not offered to prove identity, but to prove title and escape.

“We say that the two proceedings cannot be combined. The jurisdiction and duties of the Commissioner are different in the two cases.”

Dana went on to say that the claimant, Suttle, was free to proceed under either method. And having elected to proceed under Section Six, he could no longer introduce his record under Section Ten. The two methods could not be so combined.

There was a hum of murmurings in the courtroom, but it hushed as Dana pressed forward.

He said that one of the main points of Suttle's case was the
escape
. But had there been any
escape? In order for there to be an escape, Dana said, two things had to happen: The person came away of his own will and against his master's will. But Seth Thomas, lawyer for Colonel Suttle, had introduced evidence showing that Burns had not escaped of his own will. So a case of escape had not been made out, Dana said.

Richard Dana then spoke quietly to Commissioner Loring. “I regret, sir, that you did not adopt the rule that in the trial of an issue of freedom, the admissions of the alleged slave while in custody, made to the man who claims him, should not be received by the court. That ruling would have been supported by reason and humanity.”

Dana sighed. He had been speaking for a long time. He looked at Anthony Burns and was surprised that Burns was smiling in gratitude. Such dark eyes, so full of hurt and … kindness!

He turned back to the Commissioner. “You recognized, sir, in the beginning, the presumption of freedom. Hold to it now, sir… . If you commit a mistake in favor of the man, an amount of money, not great, is but at risk. If you rule against him, a free man will be a slave forever.

“The eyes of many millions are upon you, sir,” Dana said. “You are to do an act which will hold it 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 hope and not despair.”

The face of the Commissioner looked haggard. His breathing seemed labored. He would not
meet Richard Dana's eyes as Dana sat down.

Immediately, Seth Thomas rose to give his closing argument He would not attempt Dana's eloquence even if he could, but he would do a proper job—this he was sure of.

“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 that the Commissioner hear and consider his proofs in support of this claim, that you will certify to him, under your hand and seal, that he has a right to transport Anthony Burns back to Virginia. This is his whole case; this is all that he asks you to do. Under your certificate, he may take Anthony Burns back to the place from whence he fled.”

Seth Thomas said for the claimant to be entitled to the certificate, he must prove just two things: that Burns owed service and labor to him and that Burns escaped. He said the transcript of the Virginia record proved both. “One question remains,” he said. “Is the person at the bar Anthony Burns—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.