A PALE LIGHT gathered around Anthony, enough to make him stir. Awake again, he knew the time was now, and awful. Court House jail.
I’m tired, me, he thought, seeing the light at his prison window. Not future yet. Just another day. Which? Monday? So soon! They say the courtroom business will begin again this day. And still I am a slave.
He heard men stirring. Guards mustering. The whole Court House, it sounded like, was up and ready.
Lord, I flew all this long way to here. Wings. What good did it do? And now they say Mars Charles must prove who I am.
Outside, the Court Square was loud with resentment and rancor. There was a sense of grave danger in the air. Since dawn, thousands of Bostonians and citizens from neighboring towns had gathered, taking note of each movement of troops. At every window were Massachusetts and United States soldiers with their guns at the ready. They gave the massive Court House the look of a besieged medieval keep.
Entrances to the Court House were closed tight, except for one that was guarded by the city police. Reporters could enter here, and those favored among the upper class who had obtained permits from U.S. Marshal Freeman or District Attorney Ben Hallett. All else except officials of the court were barred.
Never before in Boston’s history had a court house been closed to the public. The reason was clear. City authorities feared that citizens would rise up in defense of Anthony Burns.
By the time the court opened, Anthony was ready. He had eaten little but he was dressed decently. He had been brought down a back staircase in wrist irons, shielded from the reporters waiting to get into the room, and led into the courtroom.
The Commissioner, Judge Edward Loring, sat upon the bench. He looked weighed down by troubles and the task ahead of him. On Loring’s right stood U.S. Marshal Watson Freeman. He was in rather calm good humor this morning.
District Attorney Ben F. Hallett sat at the clerk’s desk. Also in their seats and waiting were Charles Suttle, William Brent, a group of Southern friends who had come up from Virginia, and Suttle’s lawyers, Seth J. Thomas and Edward G. Parker.
Not far from them and within the bar were Anthony’s lawyers, Charles M. Ellis, Richard Henry Dana, and their aide, Mr. Robert Morriss. Flanking them were Theodore Parker, Wendell Phillips, and Reverend Grimes. Several reporters sat nearby. Other privileged and interested spectators were scattered throughout the courtroom.
Anthony sat in the front seat facing the Commissioner, between two grim guards. In front of him, within the bar, stood five more guards with pistols.
The proceedings began with a protest against continuing the case. “I protest not on personal grounds,” said Charles Ellis, the junior counsel for Anthony, “but because it is not right and fit. It is not fit that we would proceed while the prisoner sits with shackles on his limbs. It is not fit that we should proceed while the courtroom is packed with armed men, and all the avenues to it are filled with military, making it difficult for the friends of the prisoner to obtain access to him. I protest against proceeding under these circumstances.”
“The examination must proceed,” replied Judge Loring. “I will give this matter consideration if necessary, hereafter.”
Ben Hallett rose and began arguing with the Commissioner in reply to what had been said by Charles Ellis.
“I’ve already decided that we must continue,” said Loring, “and any further remarks are unnecessary.”
But Ben Hallett would not be silenced. “The conduct of the Marshal has been called into question,” he said. “And I am present at his request to act as his counsel.”
“Mr. Hallett,” Judge Loring said, “these remarks are irrelevant and entirely out of order.”
“These proceedings are necessary because of the conduct of men who got up and inflamed the meeting at Faneuil Hall,” Ben Hallett said, “some of whom I see here within the bar, and who are claimed by Mr. Ellis as his friends.”
“Mr. Hallett!” Judge Loring cried.
Hallett sneered scornfully at him and would not stop: “The men who committed murder that night came directly from the incitements to riot and bloodshed which had maddened them in Faneuil Hall. The President of the United States has approved of this course, and the efficient aid which the Marshal has ordered to prevent further violence and murder.”
Helplessly, Judge Loring sank back in his seat. The spectators gasped at Hallett’s shocking insolence. It seemed that the court had little power over him: Although Hallett should have been cited at once for contempt and ordered into custody, Edward Loring did nothing—but look ashamed. Richard Dana, watching in dismay, guessed that Loring feared Hallett, who gave the strong impression that he represented the Federal government and thus the President of the United States.
Charles Ellis started to comment on Hallett’s language when the Judge waved him quiet. Loring said that the examination must proceed. Ellis then asked, in the absence of any record, whether the Commissioner had legal authority in this case. According to Massachusetts statute, a probate judge such as Loring was forbidden to act in slave cases. Loring replied that he was quite qualified and that the case would continue right now. Because his appointment as Commissioner was a Federal one based on Federal authority, he felt this superseded state restrictions.
Now Richard Dana rose.
The case for Charles Suttle had been presented on Thursday, the 25th of May, when Anthony Burns as yet had no one to defend him. Dana demanded the whole examination restart; Loring agreed, ordering the case to commence as though it had not been postponed on Saturday.
The complaint against Anthony was again read by Edward C. Parker, Suttle’s junior counsel. Then William Brent was called to the stand to testify as to who he was and who Colonel Suttle was. He said he had acted as Suttle’s slave agent in hiring out Anthony to a man named Millspaugh. He finished by saying that the last he’d seen of Anthony was on the 20th day of March, 1854; by the 24th, Anthony was missing. On the following Tuesday, March 28, Brent had informed the Colonel of Anthony’s disappearance. But, Brent said, he knew nothing of how Anthony had left Virginia.
After his arrest on May 24th, Anthony had said certain things that could be used against him; he had greeted Charles Suttle as “Master,” for one. Now Suttle’s lawyers tried to put in these admissions as evidence.
“We object,” said Charles Ellis. “The Sixth Section of the Fugitive Slave Act provides that the testimony of the alleged fugitive shall not be taken.”
“The admissions and confessions of Burns are a very different thing from testimony,” replied Suttle’s senior counsel, Seth Thomas.
“It is the height of cruelty to the prisoner,” Richard Dana countered, “to take advantage of the only power Burns has under this law—that of speech—while the other party in the suit has his own right and, by these alleged confessions, a portion of the prisoner’s.”
Even at this early stage of the examination and before Dana had revealed the nature of his defense of Burns, Anthony’s fate could well depend on the question of his alleged confessions. It would be up to the Commissioner to decide whether what Anthony said when Suttle confronted him the night of May 24th constituted testimony. For if it did, under Section Six of the Fugitive Slave Act it could not be admitted as evidence and used against Anthony.
Dana distrusted Loring. He worried that the Commissioner would decide against Anthony. During a short recess that was called, his worries deepened, for on making his way back to court, he was stopped by guards brandishing their bayonets and kept waiting at the foot of a staircase until Marshal Freeman decided he could pass.
“This is outrageous!” Dana told Loring once he was back in court. “You need to instruct the Marshal in his proper duties.”
“I have no authority to direct the actions of the Marshal,” said Loring. All the while, Marshal Freeman stood by, grinning insolently at Richard Dana.
Dana thought Loring could exert control over the Marshal if he chose to. But Loring did nothing. So Freeman was showing that he could surround the courtroom, admit or bar individuals from the court at his own whim, and insult the defense lawyers as he pleased—and there was no one to call him to account or to stop him. Worse, behind Marshal Freeman was District Attorney Benjamin Hallett. And behind Hallett stood the power of the President of the United States.
All stacked neatly against the slave, thought Richard Dana.
Under these conditions, the examination continued after the recess. All eyes were riveted on the unfolding drama.
A breathless silence hung in the courtroom above the bowed head of Anthony Burns.
“I am unwilling to prejudice the liberty of the prisoner,” said Edward Loring. “But I think that ‘testimony’ in the law refers to evidence given by a witness and not to confessions or admissions such as Burns may have made.”
Dana groaned inwardly.
“Yet the prisoner’s counsel may have the right to pass that question for the present,” Loring said, “to come back to it later.”
In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence … Dana quoted in his head from Section Six of the Fugitive Slave Act.
“We desire that the question as to Burns’s admissions on May 24 might be asked,” said Seth Thomas, “and that the answers be taken down for future use, if necessary.”
Dana held his breath.
Loring agreed and admitted de bene esse—“of validity for the time being,” which meant the admissions would be taken for the time being, subject to objection or nullification at a later date.
Loring has gone completely against us on this point, Dana thought.
William Brent then related the conversations that took place between Anthony and Suttle the night Anthony was captured. “Burns said he didn’t mean to run away, but being at work on board a vessel,” said Brent, “and getting tired, he fell asleep. The vessel then sailed with him on board.”
Their own witness is saying, Dana thought, that Burns did not escape. He fell asleep… .
Brent continued: “The first word from Burns when Mr. Suttle went to him after his arrest on Wednesday, the twenty-fourth of May, was ‘How do you do, Master Charles?’ The next exchange was ‘Did I ever whip you, Tony?’ The answer was ‘No.’ The next was ‘Did I ever hire you out to where you didn’t want to go?’ And Burns replied, ‘No.’ Mr. Suttle’s question then was ‘Did you ever ask me for money when it was not given you?’ The answer was ‘No.’ Finally, Mr. Suttle asked, ‘When you were sick, did I not take my bed from my own house for you?’ and the answer was ‘Yes.’
“The slave recognized me, then,” Brent said. “ ‘How do you do, Master William?’ he said. And then when asked, he said he was quite willing to go back home to Virginia.”
That is not at all what Anthony told us, Richard Dana was thinking as he began his cross-examination of Brent. He objected to Brent calling Anthony “slave” and said so. He won that point when the Commissioner said, “The witness must not state any person to be a slave without corroborative legal evidence.” But no matter how Dana tried in his cross-examination, he failed to get any further evidence that would materially affect the case.
As for Anthony, from the moment Mars Brent had said that he had gone off on the vessel, his mind had taken a leap backward. Sitting in the courtroom, almost in a trance, he thought, I love a woman. And he was back in Richmond, the great port where the tall ships came in on the tide.