CHAPTER XII.

THE TRIAL OF THE COMMISSIONER (from Anthony Burns: A History by Charles Emery Stevens, published in 1856).

       WHILE Burns was rehearsing the story of his great wrong in the cities and villages of Massachusetts, the Commissioner, by whose act he had suffered, was himself put on trial at the bar of the People. The part which he had played in the tragedy of June had drawn upon himself the hostile attention of large masses of his fellow-citizens, while the tragedy itself had precipitated a political revolution of which he was destined to be a conspicuous victim. A glance at the posture of affairs in the Commonwealth, during the period immediately preceding that event, will reveal more fully the causes of that revolution.

       In the beginning of the year 1853, the whigs of Massachusetts recovered the control of the government which they had held for nearly a quarter of a century, but of which, for the two years previous, they had been deprived. Their new hold of power was, however, by no means secure. Their opponents, powerful in numbers and personal influence, regarded their success as an accident, and confidently looked forward to a speedy reversal of the popular decision. A Convention

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for revising the Constitution had been ordered; and, at the elections in the spring, the Opposition secured a large majority of its members. The summer saw the Convention in full operation, and the majority, exulting in their strength, proceeded to make the most radical changes in the Constitution. In the autumn, they appealed to the people for a ratification of their work. It was decisively refused. The blow was doubly fatal, for it crushed not only the new Constitution, but also the party which had devised it. Again the whigs returned to power, and with vastly augmented strength. A wise improvement of past experience was all which they now needed to secure them firmly in their ancient seats. They had lost power in the first instance by crossing the anti-slavery sentiments of the people; they were sure to retain and increase it by reforming their policy on that subject. An opportunity to test their disposition was almost immediately presented by the proposal to repeal the Missouri Compromise. As the party in power, as the party to whom had been entrusted the privilege of uttering authoritatively the voice of Massachusetts in such a crisis, it was their duty to have led off in an instant, energetic, and indignant rebuke of the premeditated wrong. But they hung back until their defeated foes led the way, and then feebly followed with cautiously-worded protests. That was not all. Of the two Massachusetts members of the United States Senate, Edward Everett and

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Charles Sumner, the former was a representative of the whig party, and the latter a representative of their opponents. Most unfortunate for the whig party was the contrast presented by the conduct of the two in the strife about the Missouri Compromise. While Mr. Sumner extorted admiration, even from his opponents, as the gallant and courageous champion of Massachusetts, the whig Senator compelled his friends to hang their heads in shame by tamely apologizing for having presented to the Senate the noblest remonstrance ever made in behalf of the imperilled cause of human freedom.1

1 Remonstrance of three thousand ministers of New England against the repeal of the Missouri Compromise.

Having begun by thus damaging the antislavery character of his party, he finished by resigning his place at a moment when the Legislature had put it out of their power, by a final adjournment, to provide a permanent successor. The prize of the vacant senatorship at once became a powerful incentive to revolution. It stimulated alike the aspiring and the patriotic among the Opposition to indefatigable efforts to replace the retiring, not to say retreating, Senator with one who would stand shoulder to shoulder with the remaining Senator. Then followed that embattled assault by the Federal Government in behalf of Virginia slavery, upon the peace, and dignity, and cherished faith of Massachusetts, the like of which had not been witnessed within her borders since the Boston Massacre of 1770. Again was a great

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opportunity presented to the whig party. The insulted Commonwealth demanded a demonstration against the unpardonable outrage, and a fit demonstration could only come from the party in power. They were the State; in their keeping was its honor; they only could utter its voice with authority. But they did nothing;--and again they did nothing. Then, and from that hour, the whig party rushed swiftly downward to its ruin. A movement in another direction concurred to hasten the catastrophe. Some months before, a secret political association had been organized in the State. Its growth had been small, and, down to the period of Burns's arrest, it continued small. But its organization was thorough, and its machinery the most controlling and effective ever devised. It invited recruits, and, to all political wanderers and malcontents, held out the alluring prospect of a new home and new means of power. And now, on the one hand, the discomfited and scattered members of the Opposition, and on the other, the discontented portion of the party in power, together plunged headlong into the recesses of this invisible party. All through the summer and early autumn the exodus from the old parties went steadily on; as the day of election approached, it went on with accelerated velocity. At length, the thirteenth of November revealed to the world the astounding result. The whig party had vanished away. Of the sixty thousand that had borne it into power the year before, but twenty- seven thousand remained. In

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its place had come up, eighty thousand strong, a party which at the previous election had no existence. City and country had alike yielded to their power. The great metropolitan stronghold had been stormed, and the remotest village, whether of Berkshire or Cape Cod, had been penetrated and revolutionized. Everything was theirs. Theirs was the Governor, for the first time in a decade of years by the popular vote; theirs was the entire Senate; theirs, with three or four exceptions, was the multitudinous House of Representatives. The revolution was complete and universal.

       The party thus puissantly inaugurated, now turned their attention to the outrage which had so signally contributed to their success. Representing the State by a more indisputable title than any party which had ever before been entrusted with power, they proceeded to pronounce the judgment of the State upon that transaction. Two methods of procedure were possible. They might enact a general law, or they might deal with the particular actors in the tragedy, if any were found to be properly within their purview. Both methods were adopted, but with the latter only is this history concerned.

       Of the obnoxious actors in the tragedy of Burns, no one was within reach of the power of the State but the Commissioner, Edward Greeley Loring. This person was one of that class of men who never, except by accident, appear on the page of history. A lawyer of moderate abilities, he had

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passed the middle period of life without having made any figure at the bar, and was content to solicit from his professional brethren that class of business technically called office-practice. Unambitious and reserved, he had never mingled with the people nor courted their favor in the political arena; and, until his obnoxious conduct elevated him into notice, he was probably unknown to the greater part of his fellow-citizens. But he had powerful friends, through whose influence, direct or indirect, his fortunes were essentially advanced. Among them was that family already mentioned in this history as distinguished for its devotion to the fugitive slave law, one of whose members then occupied a seat on the bench of the Supreme Court of the United States. Connected with this family by the ties of blood, Mr. Loring was in a position, on the one hand, to claim the benefit of their influence for himself, and on the other, to be infected by their peculiar views on the subject of fugitive slaves. But however this may be, he succeeded in gaining places of public trust and emolument. In 1839, he was appointed a Commissioner of the United States for taking bail and affidavits, to which duty was added, by the statute of 1850, that of sending back fugitives into slavery. In 1847, he was appointed Judge of Probate for the county of Suffolk. This office he exercised to the general satisfaction of the county. In 1854, he was chosen by the Corporation of Harvard College, a Lecturer in the Law School of that institution;

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but, though he at once entered on the discharge of his duties, the choice awaited the sanction of the Overseers. All of these places he held at the time of the rendition of Burns, and onward. With the office in which he had offended, the state authorities had no power to interfere, and in those over which they had control, he bad done nothing amiss. Notwithstanding, it was resolved to manifest their sense of his offensive conduct in the former, by depriving him of the latter.

       The willing disposition of the Legislature to proceed against Mr. Loring was sustained and stimulated by the action of the people. Hardly had the two Houses been organized, when from all quarters petitions for his removal from the office of Judge of Probate began to pour in. Every day witnessed fresh accessions to the number, and in no long time it had swelled to more than twelve thousand. On the other hand, but more tardily, remonstrances against the removal were presented. The whole number of these was less than fifteen hundred. Between remonstrants and petitioners there was a marked contrast. All of the former were men, and generally were men belonging to the circle in which Mr. Loring more immediately moved. But the petitioners were from among the broad mass of the people; and many of them were women, who, as being a class of persons deeply interested in the character of Probate Judges, very properly exercised their right of petition on this occasion.

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       Roused by the signs of impending danger, Mr. Loring at last himself presented to the Legislature a remonstrance against his removal. This paper was clumsily constructed and its argument was obscurely set forth. Reduced to a logical form it seemed to be this: That Mr. Loring ought not to be removed from the office of Judge of Probate; first, because his action in the case of Burns had been only that of a good citizen and a sworn magistrate both of Massachusetts and of the United States; second, because that action was not incompatible with his duty as a Judge of Probate. The fugitive slave law had found him holding the office of a Commissioner, and had imposed upon him the additional duty of sending back fugitive slaves. That law was an amelioration of the old Jaw of 1793. It had been pronounced by the Supreme Court of Massachusetts to be constitutional; and he had been required by the people of Massachusetts to swear as Judge of Probate to support all constitutional laws. Thus, although he had sent Anthony Burns back into slavery, he had done it humanely, constitutionally, and in obedience to his oath. Nor was the act inconsistent with the faithful discharge of his Probate functions. The office of United States Commissioner had been held by state magistrates, and, therefore, might be held by a Judge of Probate. He had received the appointment of a Probate Judge while holding the office of Commissioner, and no objection had been made from any authoritative quarter

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against his continuing to discharge all its duties. Nor, when by the act of 1850, the duty of returning fugitives to slavery had been added to his other duties as Commissioner, had he received any notice from the state authorities that the two offices were thereby rendered incompatible. Long custom, and expressive silence twice repeated, thus sanctioned the position that a Judge of Probate might properly act as a United States Commissioner, and, so acting, might without blame send back a fugitive into slavery.

       The conclusion of the remonstrance was in no suppliant tone. "I claim as facts," said the remonstrant, "that the extradition of fugitives from service or labor is within the provisions of the Constitution of the United States; that the U. S. act of 1850 was and is the law of the land; and, by the Supreme Judicial Court of this commonwealth, obligatory on all its magistrates and people; that action under the said act was lawful and not prohibited by any State law to the judicial officers of the State, and was in conformity with the official oath of all officers of the State to support the Constitution of the United States. And I respectfully submit to your honorable bodies, that when your petitioners ask you to punish a judicial officer for an act not prohibited by any statute of Massachusetts, but lawful under those statutes, and imposed by that law of the land which is the law of Massachusetts, they ask of you an abuse of power for

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which the legislative history of Massachusetts furnishes no precedent."

       The petitions and remonstrances were referred to the Joint Committee on Federal Relations, consisting of two Senators and five Representatives. Before this Committee had taken any action a heavy blow from another quarter fell upon the Commissioner. It has already been stated that his appointment as Lecturer in the Law School of Harvard College awaited the sanction of the Board of Overseers. This body was composed of the Governor, the Lieutenant-Governor, the President of the Senate, the Speaker of the House, the Secretary of the Board of Education, the President and Treasurer of Harvard College, and thirty other persons elected for a term of years. Its meetings were usually held only during the session of the Legislature. Whatever action had been taken by the Corporation during the legislative recess was then presented for confirmation. At the first meeting this year, held on the twenty-sixth of January, the President of the College laid before the Board Mr. Loring's appointment. The Board took time to deliberate. At the end of three weeks a second meeting was held, when the question again came up. A ballot was taken, and it was found that two thirds had voted against confirming the appointment. Among those who thus put the seal of their condemnation on the Commissioner, were the Governor and Lieutenant-Governor of the Commonwealth, and two

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ex-Governors--a whig and a democrat--both of whom had enjoyed in a rare degree the favor of their respective parties.1

1 Governor Briggs and Governor Boutwell.

No debate was held, and no reasons were assigned by the majority for their adverse action. There was no need, for no one doubted that the Board had taken this method to express their disapprobation of Mr. Loring's conduct as Commissioner. By this stroke he was deprived of an honorable office and a salary of fifteen hundred dollars.

       Four days after, the Committee held their first meeting to consider the question of his removal from the office of Judge of Probate. The grave character of the proposed step invested their proceedings with unwonted interest. Only thrice since the adoption of the Constitution had a Massachusetts Judge been removed from office by the method of Address; never had one been removed for such a cause. Ample powers had been granted to the Committee. Witnesses were to be examined and arguments to be heard; the proceedings assumed the breadth and importance of a great public trial. To accommodate the people, the committee-room was abandoned, and the sessions were held in the Hall of the Representatives. Long before the appointed hour, the spacious apartment was filled to its utmost capacity; crowds besieged the doors outside, and hundreds more, unable to get within ear-shot, reluctantly went away. This extraordinary exhibition of popular

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interest was repeated at the second hearing, a week later, and was not diminished when, on the sixth of March, the final hearing was had.

       Testimony was taken respecting the Commissioner's conduct, both in and out of the court-room, during the trial of Burns. But the time was chiefly consumed by arguments from various persons in favor of the removal. Among these, the most distinguished were Wendell Phillips, Theodore Parker, and the historian, Richard Hildreth. They spoke for the twelve thousand petitioners, and for the vast multitude beside, whom those petitioners represented. Much of what was in the public mind, much of what had appeared in the public journals, was now brought to bear upon the Committee with all the force which rare eloquence and keen dialectic skill could exert.

       The reasons urged in favor of the removal were various, but they were all reducible into two classes; those which had respect to the character and conduct of Mr. Loring, and those which had respect to the character and conduct of Massachusetts. The Commissioner, it was said, had not conducted the examination of Burns fairly and uprightly. He had pushed it on with indecent haste. He had manifested a purpose to send back the prisoner without giving him a chance for defence. A stickler for law, he yet had wrested the law to the prejudice of the prisoner's rights. He had received the admissions of the prisoner so far as they told

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against him, and excluded them so far as they told in his favor. He had suffered the worst part of the community to be admitted into his court-room, and the better part to be debarred therefrom. He had refused to secure for the prisoner's counsel free access to his court. He had prejudged the prisoner's cause. Before the examination was fairly begun, he had on two different occasions more than hinted that Burns would have to be sent back to Virginia.1

1 See letters of Charles Grafton and Edward Avery to the Committee on Federal Relations, printed in House Document, No. 93.

He had also, in effect, prejudged the cause by preparing a bill of sale of the prisoner. All these things were so many disclosures of character; they showed Mr. Loring's unfitness for the office of a Massachusetts Judge. He ought, therefore, to be removed.

       But there was another view. Some, not stopping to inquire whether as Commissioner he had acted well or ill, held it to be the head and front of his offence that he had acted at all. He should not have sat in judgment on the case. He should not have issued his warrant. He should have resigned his place as Commissioner if he could not otherwise have honorably retained it. Whatever might be his private views, as Judge of Probate he was bound to keep himself free from the contamination of slave-catching. Moreover, he had violated the spirit of the Constitution, and especially of the Bill of Rights. By that charter, Massachusetts

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magistrates were required to "observe justice, piety, and moderation;" to countenance the principles of humanity and benevolence. But slave-catching was opposed to all these. Nor was that all; he had violated an express statute of the Commonwealth. By the law of 1843, all Massachusetts officers and. magistrates were forbidden to assist in the business of returning fugitive slaves, and the terms of this law were held to include Judges of Probate. Finally, whatever view might be taken of the past, Mr. Loring had manifested a purpose to continue in the business of a slave-catching Commissioner; he had even insisted that it was a solemn duty which he could not evade. If, therefore, he were longer suffered to retain his judicial office, Massachusetts would proclaim to the world that her Judges of Probate might properly, and without offence, act a chief part in sending back into perpetual slavery persons as much entitled to compassion as widows and orphans.

       These reasons were of a punitive character; they had respect mainly to Mr. Loring. But the removal was placed upon higher and broader ground. It was necessary to vindicate the character and to enforce the behest of the Commonwealth. From the earliest days, Massachusetts had taken up a position on the subject of slavery in advance of every other nation in Christendom. During the period of her colonial independence, she had adopted the Mosaic code for her guide, and, while not daring to prohibit what God had permitted,

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had yet reduced slavery to its minimum of evil.1

1 A small volume has recently been presented to the Massachusetts Historical Society, entitled, "Abstract of the Lawes of New England as they are now Established," and printed in London in 1641. By the code there given, manstealing was punished with death. In the same year the following statute was enacted: "It is ordered by this Court and the authority thereof, That there shall never be any bond slavery, villenege, or captivity amongst us, unless it be lawful captives taken in just warrs, as willingly sell themselves, or are sold to us, and such shall have the liberties and Christian usage which the law of God established in Israel concerning such persons, doth morally require, provided this exempts none from servitude who shall be judged thereto by authority." [i. e. as a punishment for crime.] I have traced this statute in the edition of the Laws of 1660, and in that of 1672. There is no doubt that it continued in force till the abrogation of the Charter in 1684. Among the "liberties and Christian usage" secured by other enactments, were these: A servant flying from the tyranny and cruelty of his master to the house of a freeman, was to be protected and sustained there till due order was taken for his relief. No servant was to be put off to another person for above a year, neither in the lifetime of his master nor after his death, by an executor, except by the authority of Court, or of two Assistants. [An "Assistant" in those days exercised the functions both of a Senator and of a member of the Governor's Council.] A servant whose tooth was smitten out by his master, was to go free from service and have such further recompense as the Court should adjudge. (Mass. Laws, 1660.) There was also this important statute in which the bondman is placed on an equality with the freeman: "Every man, whether inhabitant or foreigner, free or not free, shall have libertie to come into any publique court, councel, or towne meeting, and either by speech or writing to move any lawful, seasonable, or material question, or to present any necessary motion, complaint, petition, bill, or information, whereof that meeting hath proper cognizance, so it be done in proper time, due order, and respective manner."

During the subsequent period of her provincial vassalage under royal governors, the power of the Crown was interposed to arrest her tendencies toward the entire abolition of the system, and

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she was compelled to endure what she was unable to remedy.1

1 There is abundant evidence that the people of Massachusetts were, during the provincial period, opposed to slavery, and would fain have got rid of it, but were prevented by their governors. In 1701, only nine years after the colony was transformed into a royal province, the representatives of Boston were requested by that town to take measures to put a stop to negro slavery. The preamble of an act passed in 1703, declares that "great charge and inconveniences have arisen to divers towns and places by the releasing and setting at liberty mulatto and negro slaves." In 1705, heavy duties were imposed by the General Court on imported slaves, with a view to discourage the business. In 1712, was passed "an act to prohibit the importation or bringing into this Province [Massachusetts] any Indian servants or slaves;" and one of the reasons assigned for the measure is, that such importation "is a discouragement to the importation of white Christian servants." About the year 1716, Samuel Sewall, Chief Justice of the Province, published a pamphlet in condemnation of slavery. In 1767, an attempt was made to pass a law "to prevent the unnatural and unwarrantable custom of enslaving mankind and the importation of slaves into the province." In 1769 one James, a negro, brought a suit in the county of Suffolk, against one Lechmere, to recover his freedom, and was successful. Other suits were brought in other counties, and they were uniformly decided in favor of the slaves. The ground of these decisions was said to be, that all persons in the Province were by the charter as free as the king's subjects in England, and there slavery was not recognized by law. In 1774, a bill to prevent the importation of slaves passed the two Houses, but Gov. Hutchinson refused to sign it because his instructions from the king forbade. Gov. Gage refused his signature to a similar bill for the same reason. In 1777, during the revolutionary war, a prize ship with a cargo of slaves was brought into Salem, and the slaves were advertised to be sold; but the Legislature then sitting in that town interposed, prevented the sale, and ordered the slaves to be set at liberty. For most of these facts, see a learned and instructive article on slavery, in the 41st volume of the North American Review, from the pen of the Hon. Emory Washburn, late Governor of the Commonwealth.

But from the hour when she recovered

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her ancient independence, slavery was forever banished from her domain.1

       1 Slavery was abolished in Massachusetts by virtue of the clause in her Constitution which declares that "all men are born free and equal." The great honor of having made that clause a part of the Constitution belongs to JOHN LOWELL. This distinguished man was born at Newburyport in 1743, and was graduated at Harvard College in 1760. He commenced the practice of the law in his native town, but in 1776 removed to Boston. He soon after became a representative in the General Court, and also a member of the Convention which framed the Constitution of the State. In 1781 he was chosen a member of the Continental Congress. In 1782 he was appointed Judge of the Admiralty Court of Appeals. On the establishment of the Federal Government in 1789, he was appointed by Washington, District Judge of the United States for Massachusetts. This office he held till 1801, when, upon a reorganization of the courts, he was made Chief Justice of the new Circuit Court for the eastern district. His death took place in 1802. "He was," says Cushing in his history of Newburyport, "eminent for his judgment, integrity, and eloquence as an advocate and legislator; for his impartiality, acuteness, and decision as a judge; and for his zeal in the cause of scientific and other useful institutions.

        "Mr. Lowell was the bosom friend of the elder Adams, with whom he was associated on the sub-committee for drafting the plan of the Constitution. Respecting his agency in procuring the adoption of the clause which abolished slavery in Massachusetts, I am happy in being able to present the testimony of his son, now venerable for years and virtues, the Rev. Charles Lowell, D. D., of Cambridge. In a recent note addressed to me, he says: "My father introduced into the Bill of Rights the clause by which slavery was abolished in Massachusetts. You will find, by referring to the Proceedings of the Convention for framing the Constitution of our State, and to Elliot's N. E. Biographical Dictionary, that he was a member of the Convention and of the Committee for drafting the plan, &c., and that he suggested and urged on the Committee the introduction of the clause, taken from the Declaration of Independence a little varied, Which virtually put an end to slavery here, as our courts decided, as the one from which it war, taken ought to have put an end to slavery in the United States. This he repeatedly and fully stated to his family and friends. . . . . . In regard to the clause in the Bill of Rights, my father advocated its adoption in the Convention, and, when it was adopted, exclaimed: 'Now there is no longer slavery in Massachusetts; it is abolished, and I will render my services as a lawyer gratis to any slave sueing for his freedom, if it is withheld from him,' or words to that effect." Mr. Lowell's view of the effect which the clause would have, was speedily confirmed by a decision of the Supreme Court. 

Becoming a member

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of the Federal Union, she also became subject to the fugitive slave law of 1793. But she never ceased to detest it, and when, exactly half a century after, a fit occasion was furnished by a decision of the United States Supreme Court, she hastened to place upon her statute-book an act expressive of her detestation and of her ancient and unalterable convictions. In this attitude the fugitive slave law of 1850 met and confronted her. It soon became manifest that as the new law was far more stringent and oppressive than the old, so it was to be enforced with far greater activity. Almost immediately after its enactment, a negro was arrested, under its provisions, within the borders of Massachusetts. Fortunately for himself and for the peace of the Commonwealth, he escaped from custody before the law had taken its course. Soon, another was arrested and sent back into bondage at the South, there, as it turned out, to suffer imprisonment, scourging, and death. In no long time after, occurred the arrest and extradition of Anthony Burns. It seemed that the soil of Massachusetts was about to become a permanent hunting-ground

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for Southern slave-catchers. What was she to do? She could not follow the example of South Carolina; she could not nullify a law of Congress; she could not arm her citizens and bid them resist by force the execution of the law. Nor did she need so to do; for she held in reserve a great constitutional resource. By the terms of the Federal Constitution, she had reserved to herself all the rights and attributes of sovereignty not expressly granted to the Federal Government. She had thus reserved to herself, as an individual in the family of States, the right of private judgment upon the constitutionality of federal laws. She had reserved the right of influencing her citizens, within the sphere of voluntary action, against assisting to execute an obnoxious law. She had reserved the right to say upon what conditions her citizens should enjoy the honors and emoluments of offices within her own gift, upon what conditions these should be forfeited. And if she chose to make the voluntary aiding to execute the fugitive slave law one of those conditions, such was her sovereign right. Nor was it more a sovereign, a constitutional, than it was a moral right. The citizen of Massachusetts, though he owed allegiance to the United States, owed a higher allegiance to his own State. For it was she, and not the former, that chiefly provided for his welfare. At her hand he obtained his elective franchise, his schools, his roads, his police. He touched the State at almost all points, the Federal Government at scarcely

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more than one. If, therefore, a conflict of views arose between the two, the State rightfully claimed that her sentiments should be respected, rather than those of the more distant, less protective Power.

       The conduct of Mr. Loring furnished an occasion for the practical illustration of this doctrine. Massachusetts had passed resolves expressive of her disapprobation of the fugitive slave law. She had passed an act to discountenance its execution within her territory. But neither acts nor resolves had proved sufficient. An example was needed to enforce the precept. The removal of Mr. Loring would teach her citizens more impressively than a whole statute-book of resolves, that, if they desired to enjoy her favor, they must conform to her views respecting the execution of the fugitive slave law.

       The Commissioner was formally notified to appear before the Committee, if he chose, and make answer to what might be said against him. In a brief note he declined the privilege, and contented himself with referring the Committee to his remonstrance as containing all that he had to say. An unexpected champion, however, volunteered to maintain his cause. At the third and last hearing, Richard H. Dana, Jr., presented himself before the Committee, and asked to be heard in behalf of the remonstrants. No man in the whole Commonwealth occupied at that moment so commanding a position for influencing the Committee, the Legislature, and the public in favor of the Commissioner. As the defender of Burns, he had won

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the applause and gratitude of those who were now pursuing the Commissioner. He had been in the best position to witness the Commissioner's demeanor during the examination. He was a most competent judge of his official conduct, and was not likely to judge it more favorably than facts would warrant. He had freely condemned the Commissioner's decision; and he protested that he now appeared before the Committee, not for Mr. Loring's sake, but for the sake of the principle involved.

       That principle was the independence of the Judiciary. Its preservation, Mr. Dana argued, was a thing of the highest moment to the welfare of the State and of every citizen. But, if Judge Loring were to be removed by the method proposed, and for the reason alleged, it would receive a shock of the most serious character. True, the Constitution gave to Government the power of removal by Address; but it was a power exceedingly liable to abuse, and this removal would be a most signal instance of its abuse. For it was not pretended that Mr. Loring had been guilty of any official misconduct; he was to be deprived of an office in which it was admitted he had borne himself well, because in another capacity he had offended the popular will. If by such an example the Judges of Massachusetts were taught to square their conduct by the views of the party in power, their independence would soon vanish away.

       To this argument the answer was short and conclusive.

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       The independence of the Judiciary can never be threatened by a removal, it was said, unless the removal is made on account of some judicial act. But it was not proposed -to remove Judge Loring for any judicial act; his removal, therefore, could not possibly influence the judicial conduct of other judges. Their conduct in another respect it would indeed powerfully influence; for, with such a beacon in view, no Judge of Probate would afterward venture to lend his aid in executing the fugitive slave law. But this result was precisely what was aimed at, and it was entirely consistent with the independence of the Judiciary.

       Having concluded his argument on this point, Mr. Dana assumed the character of a witness, and, moved either by compassion or love of justice, delivered a generous testimony in the Commissioner's behalf. His conduct toward the prisoner Mr. Dana regarded as considerate and humane. He had encouraged Burns to resolve upon making a defence. He had postponed the examination from Thursday to Saturday, and again from Saturday to Monday, in order that counsel for the defence might have time to make preparation. He had commanded the Marshal, contrary to that officer's inclinations, to admit Mr. Phillips and others to the prisoner's cell for the purpose of arranging for a defence. He had zealously co-operated with others in the attempts to purchase the prisoner's freedom; and had even gone so far as to draw up an order, in view of the contemplated purchase,

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for his release from custody. These were facts which Mr. Dana thought should have their just weight in determining the culpability of the Commissioner.

       But all arguments and representations, even when proceeding from such an influential source, failed of producing their intended effect. On the twenty-second of March, the Committee made their report. It was not a model state paper, but its substance was weighty and close to the point. It sharply dissected the Commissioner's remonstrance, largely vindicated the right of the Legislature to proceed by the sovereign method of Address, and recapitulated, under four heads, the objections against the Commissioner. It concluded with recommending that an Address should be presented to the Governor requesting him to remove Mr. Loring from his judicial office. This report was signed by four of the Committee. Of the remaining three members, two presented a statement of reasons for not signing the report of the majority, and the third presented a minority report. Both agreed with the majority in their premises, but dissented from their conclusion.

       The question of adopting the report came up in the House on the twenty-seventh of March. But before any action was taken, the reports were recommitted, at the instance of Mr. Dana, for the purpose of hearing further testimony on the question whether the Commissioner had prejudged the case of Burns. On the third of April, a meeting

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of the Committee was held and much testimony was taken. Its effect was simply to strengthen the case against the Commissioner. On the fourth, the Committee reported back to the House the original report slightly altered, and it was made the special assignment for the tenth. During the forenoon and afternoon of that and the two following days, it was warmly debated. Various expedients were devised to avert the impending blow, but none of them availed. On the fourteenth, the House resolved, by a vote of two hundred and six against one hundred and eleven, to send an Address to the Governor.

       The action of the Senate was even more decisive. On the twenty-seventh of the same month that body, after mature deliberation, concurred with the House by a vote of twenty-seven against eleven.

       Within a few days after, a Committee of both Houses proceeded to the Council Chamber and presented the Address to the Governor. It was in these words:

       "The two branches of the Legislature, in General Court assembled, respectfully request that your Excellency would be pleased, by and with the advice of the Council, to remove Edward Greely Loring from the office of Judge of Probate for the county of Suffolk."

       The Governor of the Commonwealth at this time was Henry Joseph Gardner. Like his predecessor in office, John Hancock, of illustrious memory,

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he was a Boston merchant; but there the parallel ended. Mr. Gardner had never, like him, rendered any service to the State which could possibly mark him out as a fit person to be crowned with the honors of the chief magistracy. Prior to his elevation, he had been placed by his fellow-citizens of Boston in various situations favorable for winning distinction--in municipal office, in the Legislature, in the Constitutional Convention--but in none of them had he risen above the level of respectable mediocrity. In the Constitutional Convention, which embraced the chief men of all parties in the state, his position was among the followers and not among the leaders; throughout its deliberations he acted no conspicuous part, nor did he leave the impress of his mind on any measure, whether of those that were adopted or of those that were rejected. The dissolution of that body left him in the position of a private citizen. While thus situated, a sudden freak of fortune elevated him to the chief place of honor in the Commonwealth. Early in the autumn following the extradition of Burns, a convention of the secret party already mentioned, assembled in secret to nominate a candidate for Governor. After a fierce contest among the partisans of several candidates whose names had been made familiar to the public, the choice of the convention, to the surprise of every one, fell upon Mr. Gardner, whose name had not even been mentioned. In the canvass which followed, he displayed qualities as a political tactician of which his previous career had

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given no promise. He adopted a line of policy, the audacity of which confounded his foes and excited the admiration of his friends. His masterstroke was a proclamation by letter of his abhorrence of the fugitive slave law. To this public assurance, were added private assurances of a still stronger character. Thus pledged on the great grievance which Massachusetts had to redress, Mr. Gardner was borne triumphantly into power.

       The removal of Judge Loring became the first and chief test of his fidelity to his pledges. Had opportunity been presented for him to act on the case immediately after his election, there was no reason to doubt that he would have promptly made the removal. But in the interval of six months which elapsed, a change came over the complexion of public affairs that raised doubts about the course he would take. Opinion was divided. Those who desired the removal were confident that he would comply with their wishes, for he had privately informed some of their number that he longed for an opportunity to do the deed. Others, who drew their conclusions from different premises, predicted that he would court the favor of Virginia and risk that of Massachusetts.

       Speculation was speedily put to rest. On the tenth of May, Governor Gardner transmitted a message to the Legislature declining to comply with the prayer of their Address.

       Thus ended the trial of the Commissioner. Through the intervention of the Governor he was

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suffered still to enjoy the emoluments of his office. But no Governor could deprive the judgment of the Legislature of its moral power. In the archives of the State is laid up, for perpetual remembrance, a record declaring it to be the will of Massachusetts that under no plea of duty to the Federal Government shall her Judges of Probate be suffered to compromise her character by sending back fugitives into slavery.

       LIBERTY and LAW are both precious to the People of Massachusetts. But Law is precious as the guardian of Liberty and in nowise as her oppressor. When Law turned against Liberty in the epoch of 1776, the People rose and put down Law. But after Liberty had been reinstated in her rightful supremacy, their next care was to re-establish Law also. The lesson contained in this History points to the same result. It represents Law in the attitude of striking Liberty with the military arm, and the People aroused and angered by the assault. Their passion rose not then to the height of overwhelming Law, but it rose to the height of warning against a repetition of the tragic act. The remedy of 1776 will be their reluctant last resort, but they are pledged by the Declaration to its use when every other fails. And meanwhile, they will be swift to punish, as the enemies of both, those who array Law against Liberty. The Crest of their escutcheon is not an unmeaning symbol.