REMARKS 
OF
RICHAR1D H. D)ANA, JR. ESQ.
COMMITTEE ON FEDERAL RELATIONS,
ON TiE
PROPOSED REMOVAL OF EDWARD G. LORING, ESQ. FROM
THE OFFICE OF JUDGE OF PROBATE.
MARCtI 5, 1855.
BO STON:
PRINTED BY ALFRIED MUDGE & SON,
No. 21 SCHOOI STREE'T.
1855.
"
ll,. i    i
BEFORE Tl!E 
IIEMAIARKS.
MR. CIIAIRMAN AND GENTLEMEN,  The Legislature has been petitioned to address the Governor, for the removal from office of one of the Judges. This
judge is a Judge of Probate, holding an inferior jurisdiction,
it is true, and on a small salary, but the Constitution places
all the judges on the same tenure, and what may be dole to
one may be done to all.  The  petitioners do not ask you to
remove this judge without cause. In whatever form the reasons may be cast, the true and controlling reason is, that, as
a Commissioner of the United States, he sent back a man into
slavery. The petitioners submit the case to your consideration, and desire you to take such steps as the law and your
duty suggest to you.  The governing  motive  of the petitioners no doubt is that Massachusetts may do an act which
shall both demonstrate her hostility to the Fugitive Slave
Law, and {;unish a man who has executed it.
A number of citizens, yielding to none in their hostility to
the Fugitive Slave Law; in their condemnation of the rendition of Anthony Burns, and in their fidelity to the antislavery principle, yet entertain grave doubts of the propriety
and expediency of this'course. These citizens, of whom I
am one, have addressed a remonstrance to the Legislature,
setting forth their opinions and their apprehensions.  If this
were a question between Mr. Edward G. Loring ancr the
Probate judgeship, if it were a question between Mr. Loring
and the Legislature, we should not have intervened. But
it was truly said by the learned historian and able controversionalist, on my right, [Mr. Hildreth] in his address to you a
few days ago, that this is a matter of public concernment,
touching  the rights and interests of all the citizens.  We
fear       that you are in the situation in which you arc asked,
"To do a great right, do a little wrong." 
GANN  Ala  oR., r,ciGA =
AN,N ARBO0R; yXlczilcA,'
/l.1~ -', 
REMARKS OF R. H. DANA, JR.
And we believe the reply should be, still in the words of
the great poet:
I It must not be,
'T will be recorded for a precedent;
And many an error, by the same example,
Will rush into the state: it cannot be"
I had hoped, Sir, that others of these remonstrants would
have appeared here to address you.  iBut they have devolved
the sole duty upon me. I must desire especially, then, Sir,
to have it distinctly understood that I appear here merely as
one of these remrnonstrants, only as a citizen, having a common  interest with you all.  I am here ill no professional
capacity,  the counsel  or  attorney of no  man.   I should
disdain to appear before you, onil a question of state, to be
determined oil reasons of state, on an issue like this, as the
retained counsel of any side or any interest.   I desire to have
it understood, too, that I, as well as the remonstrants whom
I represent, am entirely disconnected from Jutdge Loring and
his personal and political friends.   We do not coincide in the
doctrines of his remonstrance, or altogether approve of its
spirit. My personal relations with him are slight, only those
incidental to our common profession.   He has never crossed
my threshold, nor I his.  And his peculiar friends have not
been mine. I will go filrther, Sir, it is my own feeling, and
I know it is that of some of the remonstrants whom I represent, that we should be glad to see one act showing that
Massachusetts is in earnest; and merely personal considerations for a judge, who for his own benefit continued to hold
another office, one he knew might require him to return a
man into bondage, ought not to weigh  a feather's weight
against it.  If we thought you could justly and safely grant
the prayer of the petitioners, if we thought it consistent with
the dignity of Massachusetts, 4should not remonstrate.
Allow me to say, gentlemen, that there is one thing which
shoutld be clearly settled in our minds, in the mind of every
one, before we can advance a step to the consideration of
this subject.  From the course of the discussion heretofore,
I should apprehend that those who address you may be divided into two classes, those who reason upon the Constitution, and those who reason in spite of it. We hear a good
deal about the people removing their judges, and the people
holding the judges accountable  to them.  Some  gentlemen
reason as if the Legislature were the people, and the judges
something else.  They reason as if every limitation on the
power of the Legislature were a limitation on the power
3
, I 
REMARKS OF R. IH. DANA,  JR.,
of the people.  The people of Massachusetts declare their
supreme will, their highest law, in the Constitution. Every
day they re-affirm this will. Recently, a year ago last No   vember, they rejected all the amendments to the Constitution
proposed.   But every year, when they do not alter it, they
re-affirm it.  It is to the Constitution that we are to look
for the voice of the people. The Legislature, the Executive,
the Judiciary, are the several " substitutes and agents" of the
people, having their respective powers and limitations of
powers. The people are as the lord of the vineyard in the
parable, who taketh his journey, and giveth to each servant his
duty, and setteth the porter to watch.  To  limit the power
of one departmernt, or to defend the privileges or prerogatives
of another, is not to limit the power of the people, but it is
the people itself, in its sovereign capacity, apportioning its
delegated powers, and balancing one against another. The
people have adopted for their frame of government, a constitu   tional republic.  They have acted upon the great and wise
principle that the distribution of power is the safeguard of
freedom, and the accumulation of power the essence of des   potism.  They have, therefore, distributed the great powers
between the three departments, and they have intended each
shall be, in the main, so far as is consistent with the ends of
government, independent of the other.  One of these depart   mrents is the Judiciary.  Its ordinary function is to decide
questions between mran and man.  Its highest function is to
stand between the Constitution and the powers that be.  Its
noblest office is to protect the weak and the few against the
many and the stroing, the minority against the majority, those
out of power agaillst those who are in power.
The Legislature is by far the strongest department.  It
holds the purse and the sword. Its power of making and
'-un imaking all laws, its numnbe.,its popular character, its pub  lic action, and its facilities for immediate communication with
the people, its ready access to the public ear and public sym  pathy, are great elements of power.  The Executive is strong
from its position of command, its concentration of power,-and
its rapid action, and above all, as the power of appointment
and removal is exercised now, from its patronage.  The Judi  ciary is inherently weak.  It is few in numbers, it has  no
patronage, the judges are usually elderly and retired men, they
have, or should have, no political influence, and have many
unpopular  and odious duties to  perform; and  in public
conflicts, decorum and usage enjoin upon them silence. The
people have seen this, anrid have desired to strengthen the
4 
ON THE REMOVAL OF JUIDGE LORING.
Judiciary.  There is another reason, peculiar to a constitu tional republic, why the judges should not hold at the will of
the other departments.   The judges are to pass between the
people and the Legislature, between the people and the Ex ecutive.  The  Constitution is made  to protect  minorities
against majorities, to protect the weak against the strong, to
protect the citizen against the ruler.  Nay, the people them selves, having full power, have placed themselves under a
noble self-restraint.  They have declared certain great prin ciples, and made  certain great provisions for securing their
observance. If there were no power to keep the Legislature
and the Executive to the Constitution, it would be only a
moral and not a legal restraint.  The people have provided a
department, a tribuniial, for that purpose.  That is the Judiciary.  It is not a perfect safeguard, nor is it faultless, but it
is quite worth our preserving.  Patrick Henry said, "It is
the highest encomium on this country, that the acts of the
Legislature, if unconstitutional, may be resisted by the Judiciary."  In England, Parliarmenlt is omnipotent.   There is
no tribunal to vindicate any right against the King and Parliamnent combined.  A few months ago you had a Constitutional Convention in session here, to revise the Constitution,
and recomnmend changes to the people.  Imagine such a convention with full power to change the Constitution by its
mnere vote, and not obliged to submit its vote to the people.
Imagine that Conventioii in perpetual session, and clothed
with full powers of legislation, and you have a British Parlianient.  We have no such power here.  Any  man, however weak, however odious, has certain rights secured to him
by the ConstitutionI.  If the Legislature, by accident or design, if the dominant political party, flushed from the contest,
have sought to touch the hair of his head, he can appeal from
them to the judges; and there is nothing on earth nearer
heaven, than whniii the judges of the land vindicate the right
of such a man, against the popular sentiment, or popular interests of the hour.  The great Lord Holt defied both Houses
of Parliament in succession, in defence of the right of one
man, and when he died, he had a funeral two miles and a
half long, stretching out of London.   If I were called upon
to name the peculiar characteristic of modern, Christian,
republican liberty, I should say it was the adequate protection
of the few, and the weak, and the unpopular, against the great
powers of Legislative and Executive authority.
Now mark, Mr. Chairman, the wisdom of our ancestors.
While they declared, in the Bill of Rights (Art. V.) that all
5 
RREMARKS OF R. H. DANA, JR.,
magistrates are accountable to the people, and (Art. VIII.) that
the people have a right "at such periods and in such mainner
as they shall establish by theirframe of government, to cause
all officers to return to private life," they did, in their frame of
government, declare that the judges should hold office during
good behavior.   Thie  reason they gave for it was,  (Art.
XXIX.) "It is essential to the preservation of the rights of
every individual, his life, liberty, property, and character, that
there be an impartial interpretation of the laws and administration of justice.  It is the right of every citizen to be tried
by judges as free, impartial and indeperndent as the lot of
humanity will admit."  For the ordinary purposes of trials, the
mode of tenure may not be important, but in the great contests of political forces, if the judges depended for their existence, or their compensation, on the Legislature, their value as
a barrier against legislative usurpation would be nothing.  Accordlingly, their salaries are secured to theni by standing laws.
Would it not have been a mockery to prevent the Legislature
from holdintg their salaries at its yearly control, and yet leave
the officers themselves at its mere will?  I think we shall
find, Sir, that, judged as all clauses in the Constitution must
be judged, not merely by a literal and verbal criticism of the
clause itself, but also with reference to the subject matter, the
context, the reason and spirit of the whole instrument, the
people do not intend that the judges shall be mere tenants at
the will of the other departments.  If it were so, what would
be the value of the right that the judges shall pass uponi the
constitutionality of your laws.  You have only to remove
from office by address, the judges who differ from you, and
you make yourselves the sulpreme judicature, and the final
interpreters of the Constitution.
This question of the power of removal by address, is partly
an historical question, and must be treated as such.  It is derived from England.   In England, the King has the power of
appointment and removal. He appointed and removed the
judges.   The  great object of the friends of freedom was to
secure the independence of the judges.  Why?  Because they
were to pass between the crown and the subject.  After the
revolution of 16S9, the judges held office so long as they
behaved themselves well.  If the King was to determine when
they behaved themselves well, nothing was gained for liberty.
But official misconduct was a fact in its nature to be judicially ascertained.  The  British Constitution, too, had  the
ancient characteristic that official misconduct should be juldicially ascertained, on impeachment by the Commons, and
6 
ON THE REMOVAL OF JUDGE LORING.
trial before the Lords.   The  true meaning of the clause,
then, was, that the judges should hold until they were convicted of misconduct, on impeachment.
By the Constitution of the United States, the President has
the power of appointment, and, by a construction too well
settled to be disputed now, the power of removal.   But it is
provided that the judges shall hold during good behavior.
'Who is to judge of their good behavior? Not the President,
nor Congress, nor both together.   But, as all agree in the interpretation, it is to be judged of by the Senate, in its judicial
capacity, on impeachment by the House of Representatives,
two-thirds being necessary for a conviction.  In the Constitution of Massachusetts, we have the same provision and the
same construction,  The general rule is, that the judge is to
hold until his misconduct is judicially ascertained, on impeachment.
But the English Constituttion still retained the power of the
King to remove a judge on the address of both Houses of
Parliament. This was not a power conferred on Parliament.
Parliament llas all power,  It was a limitation on the power
of the Crown.  In our Constitution a simnilar provision is introduced.  After the declaration that the judges shall hold
during good behavior, it is added, " provided nevertheless, the
Governor, with consent of the Council, mnay remove them
upon the address of both houses of the Legislature."
This power is given in terms unlimited in the clause itself.
The clause gives you plenary discretion. Does it follow that
there are no rules for the government of this discretion?
Thile veto power is unlimited in terms.  But if the Governor
is to veto every law that he does not like, every law that
he would not have recommended or voted for, as a member
of the Legislature, he makes himself the supreme legislator.
There are, in every instrument, clauses unlimited ill terms,
which yet are limited by the nature and spirit of the instrument,  and  by the context.  Powers  may  be given,  each
unlimited in terms, which, if exercised to the extreme,
destroy each other.  Or, a single power unlimited in terms, if
exercised to the extreme, may violate the declared principles
of the instrument.
The pardoning power is unlimited in terms,   But the Constitultion declares that the Legislature shall make the laws, and
the judges interpret them.  It also provides that juries shall
decide upon guilt and innocence. Now, is it not clear that if
the Governor shall refuse to execute every law he does not
like, or shall pardon every man convicted under a law which
7 
REM,IARKS  OF  R.  11. DANA,  JR.,
he does not like, because he does not like it, he virtually
"suspends the laws, or the execution of the laws," and impairs
the power of the Legislature? Is he to make himself the
supreme juror, and set free every man for whose conviction he
thinks he would not have voted in the jury room?  Is he to
make himself the supreme judicatory, and suspend the opera tion of every criminal law about wi'hieh he differs from the
Court?  No statesman or jurist contends that, by the spirit
and reason of the Constitution, he has  this right.   No
governors have so interpreted the power.  Yet the pardoning
power, like the power of removal, is unlimited in terms.
We see then, that there may be limitations upon the  exer cise of powers, drawn from the Constitution. The conflicts
of powers require these limitations.  Whether you call them
strictly legal limitations, or rules for guiding you in the exer cise of your discretion, they are equally binding on you as
statesmen, being drawn from the nature and necessities of
the Constitution itself. True, there is no power which can
revise your act, or declare it void, or inquire into your reasons.
Nor can any person inquire into the acquittal by a jury, or call
the jurors to account.  But that does not absolve them or you
from a legal or constitutional duty, which you are sworn to
perform. Allow me to suggest some limitations on the remov ing power, drawn from the Constitutioni itself. As the fact of
misbehavior in office is to be ascertained on impeachment, by
judicial trial before the Senate, would it not be a violation of
constitutional principles to remove a judge by address for alleged misbehavior in office, without trial?  Still more, would
it not be so, to remove him after he had been tried and acquitted
on impeachment? Would it not be in derogation of the great
constitutional right of every man to have the judges pass between him and you, if you were to remove a judge because he
differed from you, because he held your law unconstitutional?
If you were to remove the judges because they held the
Maine liquor law unconstitutional, or the law for the annexation of Charlestown, and put in judges who agreed with] you,
would it not be a violation of the reason and spirit of the
Constitution? Nay, more, -would you adopt as your rule of
conduct, the maxim that the three departments  must  be  a
unit, and make the judges your tenants at will, to resign
or be removed at your intimation, reducing them to the condition in which the President holds his Cabinet? Yet, if you
shut your eyes to all Considerations but that of the literal
construction of the clause itself, as the manner of some is,
you will find a better right to do this in the case of the judges,
I
s 
ON THE REMOVAL OF JUDGE LORING.
than  the President can find in the case of the Heads  of
Departments.
I trust, then, that we are agreed that there are limitations
drawn from the Constitution itself.  Indeed, I hope you have
anticipated me in this argument, alnd that I have merely followed a course your own minds have gone over before.   The
remonstrants, then, may feel confidence, —nay they not,-that
you will not advise the removal of a judge, if it is to be
done in derogation of any of these limitations.  Biut, although
some of those who have addressed you, have urged you to
reniove Judge Loring because you have an unlimited power,
and  need give no reason, yet that is not the ground onl
which the case of the petitioners is put by their chief advocate, (Mr. Phillips,) and I am  bound to say that on the case
as he presents it, I do not think that a removal would be a
violation of the limitations drawn from the (Constitution.
The grounds upon which Mr. Phillips puts the case are, that
though guilty of no impeachable misconduct in office, Jud,ge
Loring has shown  himself unfit to hold the office; that ihe
has wilfully disregarded the will of the people, as expressed
by the Legislature; that he has shown stucht a want of the
judicial qualities, such inhumanity, suchI corruptness of mind,
and so forfeited the confidence of the community, and so
incurred its permanent and just abhorrence, that the retaining
him in office is a public scandal, and the public interests in
the Probate office demand his removal.
If this case is made out, I do not doubt your right to
remove him.     Constitutional questions are grave  questions.
More         than any others in the field of human science, they
demand         breadth of mind, reflection, experience, calmness and
study.  Y     et there is no subject on which most  men seem to
thi       nktl  themselves so competent to decide, on whlich many
men,        and   not unfrequently thie most heated and the most
inexperienced, are so confident and so absolute.  I approach a
constitutional question with more doubt and awe, every day I
live. I      would give no positive opinion, but I must offer you,
in        behalf of the gentlemen I represent, the best I car in the
w ay       of opinion or suggestion.  I have read the articles on the
removi n       g power attributed to the especial friends of Judge
Loring,  an d the latlguag,e of his remonstrance, and of one, at
least,      of the public rermonstrances.   I have not been able to
agr ee       to the legal limitations there assigned to the power.   I
can se      e      no limits to it, beyond those rules I have drawn from
the Constitution itself, except your own opinion of the public
interests. T he possibility or probability of abuse is no argu
11
9 
REMARKS OF R. H. DANA, JR..
ment to disprove the existence of a great prerogative.  The
power exists, and confidence must  be placed  somewhere.
The Constitution places this confidence where only it can be
placed, in thie combined action of all the departments and
depositories of power known to our laws, except the party to be
remnoved.  I have read the debates in the Conventions of 1780
and 1820. and I remember those in the Convention of 1853,
and in their light, I can come to no other conclusion.
But in determining whether you will exercise this great,
ultimate prerogative, you will be governed by certain  moral
restraints, by great reasons of state, by considerations of an
enilarged public policy.  You will bring to it a large discourse
of reason, looking before and after.
As to your nere right of removal, I do not, as I have said,
believe that your right is contifined to cases of violation of
law, either in office or out of office.  You  may remove the
jutdge for insanity, or imbecility.  If he has a permanent disorder which makes it unsafe or disagreeable to be in his presence, so that the public interests stiffer; or if he has so clearly
and permanently forfeited public confidence, and incurred a
permanent and just public odium, so that the public interests
suffer, and scandal is wrought by his continuance in office, I do
not see why you may not remove him. I put these cases
only as illustrations, and not  as limitations.  I go further.
TI'he Bill of Rights says, (Art. XVIII):
" A frequent recurrence to the fundamental principles of the Constitution, and a constant adherance to those of piety, justice, moderation, tenmperance, industry, and frugality, are absolutely necessary to preserve the
advantages of liberty and to mraintain a free government.   The  people
ought, consequently, to have a particular regard to all those principles, in
the choice of their officers and representatives: and they have a right to
require of their lawgivers and magistrates, an exact and constant observance
of them in the formation and execution of laws necessary for the good
administration of the Commonwealth."
I do not know why yout may-not make these requirements
tests of causes for removal.
But it is not what jurists tell us we may do, but what reason
and experience and prudence tell us we ought to do, ~'hich
should be our guide in the exercise of such a power.   You find
that from the beginning of the Government in 1780, until now,
the power of removal by address has been exercised  but in
two cases, otie being a confessed case of imbecility by reason
of old age.  Even then, it was used reluctantly.  T'here have
been judges who have held office too long, judges who have
disappointed the public, jludges who have failed in many of
the qualifications which make them useful atnd acceptable, but
10 
ON THE REMOVAL OF JUDGE LORING.
the power of removal by address has not been resorted to.
Why is this? It is because the public judgment has regarded
it as one of those great ultimate powers, necessary to have in
existence, but dangerous to use. The public see the danger
that the medicine of the Constitution might become its daily
food. They have thought it better to
" bear the ills we hlave
Than flv to others that we know not of.'
They have preferred to treat it as Burke has spoken of the
unqualified veto power in the Crown: "Its repose may be
the preservation of its existence, and its existence  may be
the means of saving the Constitution itself, on an oc casion
worthy of its bringing forth."
The history of political parties, the manner the appointing
and removing power is now exercised throughout the country,
should make us pause before we set an example which may
tend to put the judges in the power of the majority.  Has not
the abuse of the removing power become the crying evil, the
periloutis disease of our Constitution? Has it not done more than
anything else to corrupt the currents of public life, and lower
thie standard of public action, and heighten the violence of
political contests? Are not all good men looking for some
remedy, as for the very life of public virtue?  Has it not rendered the President a monarch, and given him a power over
the fears of all who  are in office and the hopes of all who
are out, so great that he is almost irresistible?  If the power
to remove judges by address had existed in the federal constitution, are we sure that the jutdgeships would not have
fallen among the spoils of victory?  We  may say it would
not be so in Massachusetts. True, our moderation and good
sense have  prevented  it hitherto.   But I can  remember
the time when it was thought an outrage to remove a postmaster, without other cause than his political opinions; but
now, no one asks for a cause for any removal.  Literary,
religious, charitable  offices, have, one after another, fallei
before the march of party.  Now, at each alternation'of the
annual municipal elections, the physicians of the insane poor,
the ministers to the mind diseased, and the stewards and matrons under them, are driven in and out, almost as fast as the
shadows that cross the twilight of the brain of the poor sutfferers to whom they miniister.  Who  shall say that if the
taste of blood is once given, the honors and emoluments of
the judgeships may not be sufficient, added to the acceptable
doctrine that all must bow to the popular will as expressed
in the election, to cause those offices to go as all others
it 
RFEMARKS OF R. H. DANA) JR.,
have  gone before them?   In a neighboring  state, three
whole benches of judges were once removed in the course of
three or four years; and it is lnotorious that courts have been
made and unmade to answer the needs of political parties.
I do not undertake to say how great the danger is.  We  prefer not to incur it.  I hold in my hand an article in the Eveling Telegraph of last Wednesday, written  by Mr. Samuel
E. Sewall. as warm a friend of the colored race, as strong a
condemner of the lawv of 1850, a man as little inclined to
conservative opinions as any amongst us, in which he strongly
remonstrates against this proposed removal.  He says,
"NSothing could be more impolitic than to remove Judge Loring, for his
obnoxious opinions, in the way proposed.  So easy a precedent would be
sure to be followed.  The heroic judges of Wisconsin, who have nullified
the fugitive slave act, in that State, might well tremble if a Whig or
Democratic legislature was in power there, and adopted  the idea that
judges who held unpopular sentiments ought to he removed by address. If
this principle be admitted, every Legislature in its turn would ostracise all
political opponents within its reach, till the power of legislative removal
became as odious and corrupting an engine of party despotism as the power
of removing officers has proved in the hands of the President of the -United
States." 
Recollect, Mr. CIhairman, that this game of removal is a
game  at which  two may play, and if the cry of "proscribe
the proscribers " goes forth, it is not easy to see the end.  I
admit the right to remove for any of those disqualifications,
the result of accident or fault, which makle it for the public
interests that the removal should take place.  I will admit
that if you make  the removal in the present case, it will be
in obedience to honest and commendable  moral impulses.
But that which is honesty with you, may be pretext with others.  If you remove Judge Loring because he executed the
Fug,itive Slave Law, other judges, here or elsewhere, may be
removed, because they do not.  If yout remove for what may
be construed to be moral disqualifications, or for "flying in
the face of the expressed will of the people of Massachusetts," as it has been called, do you not see how wide a field
of exploration and discovery you open to parties less scrupulous, or more excited than yourselves? Would you desire to
have each successive Legislature, in committee of the whole,
revising the list of the judges of the land, and trying each
by its tests of "piety," " tenmperance,"' "moderation," " frugality," and "fidelity to the fundamental principles of the
Constitution? "  W-ould not the evils of such a censorship be
likely to be greater than its advantages?
There are then, Mr. Chairmanr,-reasons of state, reasons of
12 
ON TIlE REMOVAL OF JUDGE LORING.
political prudence, reasons drawn from experience, which will
guide you in the exercise of an admitted power.
In the light of these reasons and considerations, to the force
of which  I know that you assent, I will pass to tie less abstract, and therefore, probably, at least to the large audience
that attends your session, the more interesting inquiry, whether
a proper case for the exertion of this power, is now before
you.
The causes of removal have been cast into form by tile
eloquent and distinguished gentleman who represents the
petitioners at your table [Mr. Wendell Phillips.]   And when I
speak of his eloquence and distinction, I do it inl no phrase of
ordinary compliment between opponents. The bar of which
I am a member, regrets daily the grace, the high bearing,
the culture and the brilliance of eloquence which he has
withdrawn from us.  It is not too mulch to say that the public life of Massachusetts, rich as Massachusetts is in orators
and scholars, regrets his loss.  And when I hear of sacrifices
made for the cause of freedom, of contributions to the relief
of the oppressed, what, I ask, is the sacrifice of this or that
office, or this or that preferment. the vulgar contributions of
money, earned perhaps by compromises with slavery, to the
sacrifice  which  he has made  of the bright dreams of hdis
youth, of professional and political distinction, of high station,
and the reflection of new honors upon an honored name he
has inherited, and greater yet, of the consciousness of leading
a life of intellectual contest in the professional arena, before the
public eye!  All this he has sacrificed, because he would not
misconstrue the Constitution.  He saw iii it a recognition of
slavery, and his sense of duty, growing, he will permit me to
say, out of a wrong view of the relationi of men to the State,
or rather of the State itself to the Great Lawgiver, this sense
of duty called upon him for the great sacrifice, and he made it.
Excuse me for digressing to pay to it my tribute of respect.
The petitioners do not ask for the removal of Judge Lorimg, because  he acted  as a. Commissioner.    Mr. Sumner
offered to act as Commissioner in any slave case they would
bring to him.  But, for pretty obvious reasons, the claimants
did not seem to prefer him. You would not remove him from
his senatorship, if he  had acted, and liberated Burns.  If
Judge Loring had liberated 1Burns, would there have been
any petitions for his removal?  Would  this Assembly have
met here to-day for his condemnation?  It is not because he
decided upon the case, but because he decided  wrong, that
hle is to be removed. Now, Mr. Phillips is too much of a
13 
REMARKS OF R. H. DANA) JR.,
lawyer and statesman to leave the case on that ground. He
fears that the sober thought of Massachusetts would not sanc tion it.  He casts it in a different form.  He says that this
act shows him unfit for the office of Judge of Probate, and
that he is to be removed, not because he decided wrong, but
because he is unfit for the office of Judge of Probate. The
apology for our ancestors in burning and banishing Quakers
and Baptists, is that they banished and burned them not for
being Baptists and Quakers, but because Baptists and Quak ers could not be good citizens.  This is felt to be a circuitous
and unsatisfactory defence.  Judge Loring has held his office
many years in the public eye, and during the last year the
attempt at his removal has been determined upoln.  Yet no
one act has been brought  against him, in his office.  Does it
not savor a little of artificial reasoning, of a technical convic tion?  Is it not rather a suspicious course of proof, to admit
that there has been  in fact, no misconduct in office, but to
infer that there will be or may be, from a single transaction
out of his office, the gist of which is a wrong decision?  I
should be sorry to see the condemnation of any man, still
more of a judge, secured by such a course of reasoning and
proof.
The st-rong grounds  upon which  Mr. Phillips places the
cause of the petitioners, are two; first, that in acting as a
Commissioner, he has violated the express will of Massachtusetts; and second, that in the conduct and decision of the
case, he exhibited traits of character which show him  unfit
for the office of Judge, and rendered him so justly odious
that the public interests require his removal.
Now, Sir, I say here, as I said in the beginning, that the
result of this petition to Judge Loring, is nothing to us.  If
the principle on which he is removed be a sound one, the
question of fact, whether it was properly applied to him, is
of less consequence.   If the law is not violated, the question
whether justice or injustice is rendered to him, is of minor importance. Yet it is well enough, while we are about it, to be
sure that any man, however obnoxious he may have made himself, is not unjustly conldemned.  It is not beneath the digility of the inquiry to be sure that we do no injustice on the
personal question.  Yet, on the personal question alone,  I
should not address you.  But we all have an interest that a
judge sholtld not be removed upon any mistake or misconceptiont of facts, however correct the principle; for we all
hlave a deep stake in the tenure of the judicial office, and the
immunity of judges from condemnation in all but the clearest
and most unequivocal cases.
14 
ON THE REMOVAL OF JUDGE LORING.
As I was present during the trial of Burns, and took part
in his defence, and am personally acquainted with the principal transactions, I will, if you desire it, Sir, state my recollections of the events.
On the morning of Thursday, the 25th day of May, a little
before 9 o'clock, I learned that a man was arrested and imyrisoned in the Court House, as a fugitive slave.  I went
immediately in, and found Anthony Burns, in the United
States Circuit Court room, surrounded by a powerful guard.
I spoke to him and asked him if he wished for counsel to
defend him, and offered him my services.  As he is now free,
there can be no objection to stating his reply.   He said that
it was of no use, that they had got him, and that if he put his
-master to any trouble or expense, it would be worse for him
when he got back to Virginia. In his speech, recently made
in New York, he says: "The lawyers insisted that I should
have counsel, but I told them I did not think it would do any
good, for what I had first said had crushed me, and I could
not deny the truth, and my only hope was in the assistance
of Heaven."  (He refers to his having admitted to Suttle
that he was his slave, in the presence of the officers.)  Burns
is believed to be a man of the highest sense of duty, and of
a tender conscience, as a Christian.  He was willing to contend for his freedom, and to escape if he could, but he was
not willing to deny a fact which he knew to be true.   I told
him, if there was any flaw in the papers or in tile proof, he
would be released, and the counsel could take that defence.
This he did not object to, but seemed afraid to make a defence, in the belief that it must fail and would make his case
worse.  Mr. Parker and  Mr. Phillips both conversed with
him, and they received from him substantially the same
reply.  Mr. Phillips will recollect the discussion of the ethical
question, in which he and I agreed in the opinion that we
ought not to induce him to a defence which he did not desire,
even for his freedom, but should limit our efforts to ensuring
him time and opportunity for making a free decision. Judge
Loring came in and opened the Ccurt.  I went u5 to him
and spoke to him privately, and told him the condition of
fear and helplessness the man was in, that he was in no state
to judge whether he would have  counsel and a defence, and
suggested to him that if he spoke to the man across the
court room, with the claimant between, and the officers
about him, hlie would be under duress, and that he had better
call him to him, at the desk, and speak to him more confidentially.  Judge Loring replied, "I intend to do so."
15 
REMARKS OF R. H. DANA) JR.,
The claimant's counsel then read and put in the record,
and began to question Mr. Brent as to the identity.  I felt
that if Burns was to have counsel he should have it then,
while the examination was going on, and not after they had
put in their case; for there was no one to object to questions
or to keep the examination within rule, or to take minutes.
I conferred with Mr. Phillips, Mr. Parker, Mr. Ellis and others,
and rose and addressed the Court.  I urged that time should
be given Burns for determining whether he would defend,
and to select counsel, and prepare his defence.   I can say,
however, that although I urged it with all my force, and I
felt bound to do so, I had no doubt that Judge  Loring
would grant the motion. When Mr. Ellis addressed the
C(ourt on the same motion, I am quite sure I told him that,
from what the Judge had said to me, I had no doubt he
wvould grant the motion.  It was resisted, and I regretted
it was so. by the claimant's counsel. The reason, however, given by them, had its force.  They said the  man
did not desire a defence, and had acknowledged the truth of
their claim.  Our only answer was that he was iii no condition to determine what he would do. Judge Loring then
had the man brought to him, at the desk.  He spoke to him
in a tone of kindness, and one to inspire confidence. Said
he: "Anthony, do you wish to make a defence to this claim?
If you do, you can have counsel to aid you, and shall have
time to make it.  You have a right to a defence, if you wish
for one."
Anthony looked timidly round the room, and made no re)ly. I confess to you, Sir, I thought it was all over. Judge
Loring said again, in a manner most likely to re-assure the
prisoner, and putting his question in the most favorable form,
-' Anthony do you wish for time to think about this?  Do
you wish to go away and meet me here to-morrow or next
day, and tell me what you will do?"
\Ve watched him anxiously.  He gave a slight sign, but
whether it was assent or dissent, I confess to you, Sir, I could
not have told.  The Judge seemed doubtful, but at length
said, "'I inderstand youL to say that you would."  Anthony
said faintly, "I would."  "Then you shall have it," said
Judge Loring, and Anthony went back to the dock.
The question then was as to the time for the adjourned
hearing, whether it should be the next day or Saturday.
While this was pending,  the United States Marshal went up
to the Judg,e and whispered to him.  Judge Loring, replied,
aloud, "No, Sir, he must have the time necessary."  The
Marshal whispered again. The Judge replied, rather se
16 
ON THE REMOVAL OF JUDGE LORING.
verely,'' I can't help that, Sir, he shall have the proper time."
He gave us until Saturday.
This is the history of the first day. We all know how
subject we are to have our recollections affected by subsequent events.   I have a habit, whenever I happen  to be
engaged in a matter of much public or private importance, to
make a record of the events as they transpire.   I find in my
journal, entered either that day or the next, and before Saturday, a narrative of the events, ending with this observation:
TThle conduct of Judge Loring has been considerate and humane. If a
man is willing to execute the law, and be an instrument of sending  back a
man into slavery under such a law, he could not act better in his office than
Judge Loring.'
Nowv, sir, I am not willing to have my impressions at the
time reversed and confounded by subsequent events.   I know
that not only then, but throughout the trial, I thought the
conduct of the Judge, in the maini, unexceptionable.   And
even under the excitement, the distress, the mortification of
an adverse result, a decision which I thought wrong both on
the law and on the facts, I am sure that no man ever heard
me charge Judge Loring with an intentionally wrong judgment,
or with a desire to decide against the prisoner.  On looking at
the printed report of my subsequent address to the  Court, I
find that I spoke of the Judge as having "counselled him in
a parental mainer, and advised hinm cf his rights," and again1
of the' kind words" addressed to him by the Judige.  llr.
Phillips and others think that I have mistaken the order of
events, and that Judge Loring had heard the claimant's case,
and would have pronounced his decision and sent off Burns
forthwith, if we had not interfered.  He gives to me  tihe
entire credit of preventing it.  This is not my  impression.
I think my order of events is correct.  Judge Loring needed
not, and ought not, perhaps, to have heard the claimant's
case before calling up Burns; but I have no doubt that he had
determined to give Burns time, and to call him  to him, but
intended to require the claimant's case to be shown first.  I
am sure that I was not suspicious, at the time, of his intentionIs,
and that is to me the best evidence. Indeed, I will frankly say,
that if Judge Loring had addressed him as all other judg,es
address prisoners, across the bar, it' he had not called himr to
him, and in a manner and tone at once kind and assuring,
almost urged a defence upon him, if he had not ca,ught at a
slight intimation of assent, I do not believe there would have
been a defence at all.  If it had not been a case of freedom,
III
17 
REMARKS OF R. H. DAN&, JR.
if it had been a meie  mon(ey case,'Col.  Suttle would have
had a right to complain.
It is said that Burns wxas kept ini irons, while in Court.   I
think this is a mistakle.   I am sure he was not in irons wheti
lie canme to the Jidge's desk,  and  I am  sure that if I hliad
i(-oticed the fact, at any time after the case began,  I should
have felt bound to call the attention of the Court to it.  I
recollect ti-hat either thlen or otl Saturday, Mr. Ellis, in address iug the (ourt, on a mnotion pending, spoke of Biurns  as it)
irons.  The officers shiook their heads, and the Judge inquired,
and it turned oult to be a mistake, and  Mr.  Ellis corrected
him-lself.  [Mr. Ellis, from the gallery-That was on  Sattir day.]
The U. S. Marshal, after the adjournme-t, refused to let any
l ersoii but me see Birnas.  I told him I was not his counsel,
antd was a stiraiier to him  buLt lie adhered to his rule.   I vwould
not see him, at least n.ot alone,  because  he had declined a
detfeice, a,nd it was generaily ltnown that he had done so
1and I wYas not willinig to stibject myself to the imputation of
I)ltting him up to a defence and to employing me as his coun sel' nor  was I willir, to ofiFer myself to him, under such circimtistainces.   I do not kinowv th-t I would  not, at the last
inornient  but }not if any othier lode coutld be resorted to.
5Ar. Phillips the Rev.  Ir. (xitmes, th]e clergymnan of the
colored  people, whio  lknew  1)n11s,  and Deacon Pitts, with
wxhoni Burns hIad lived, iin'cstoso, tried to see him,  butt il
vaint.  Thley came to i;e.   I told them I knew  that Judge
Loring  v-o)tlId  order    it.  wrote a note to Judg'e ILorilg
xwho w as t C amrid'e, It'i j.,- the coi.rse of' the Marshal, and
my reasonis or:Iot vis-tiG-c l aj i    rThese getitleJeii wellt to
Cambrid-e. and  bhouiht i'on  Jucde Loring,  on tile back
(tof my letter, a note to thi i,arshal  which I read, but which
wAas oriveil to the  iarslial, reqirig him to admit two or three
1,eitlieni1 wtio shgO,' g1ve their naimes  atid pu-rposes, if
iBurns desired to see t Semo.  To this the Marshal yielded, atnd
MIr. Pllilps anid the othlers owe  it to this intervenition  of
Judge Lot ritg, that t'hey saw Burns at all.  They visited'hiin
and birotigit me a writtein reinuest from  Burins to act as his
counlsel, atd I theno  began, in conjunction with Mr. Ellis, who
ofiered his services, to prep)are his defence.
You will remember that one of the worst features of the
Fugitive Slave Law is, that the record which the master p)roduces, is conclusive on- the Iacts of slavery and escape.   The
only question open is that of identity, that is, whether  the
man seized is the man described. WVe examined the record,
and could find no flaw in it, on which we could rely with any
I s 
ON THE REM.OVALT OF JUTDGE LORING.
confidence.  The legal qluestions respecting thle admissil)ility
and effect of such a recol-d had bee:i fully presented by tlr.
Cha-rles G. Loring and AIr. PLantoul, in tthe case of Sims, and
had been over-ruled.   We had little doubt tilat Jutdge [oring
wvould follow that precedent.  Thie Stlpreme Court of Massachiisetts, and the Circuit Court of th-is Circuit had pronounced
the law constitutional, and su]stainied the jurisdiction of the
Commissioner.   On the -)poiet of identity, there was no hope
of a defence.  Col. Suttle and Mr. BPrent were  present, wvho
had known him from a boy, an-d the latter was a competent
witness.  Burns had admitted the facts in the  presence of
Brent anid the officers, alnd he hlad answered in openll Collrt to
the name iii the RPecord.   We  had no reasonable hlope of a
successtfilf defence.
On  Satiurday morninlg, we  moved  for a further delay.
There was great ainxiety oil the part of thte government officers.  The night before. the Court House had been attacked,
atnd one of the MIarshal's gtuard killed.   The only  reas',l
we could give for our motion  was that, owing to the order
of the -Marshal, coun-sel were not en,-ag(ed until Ftriday afternoon, and we were not prepared to our own satisfactioln.
This was trie, aind an  important truth, butl in a case not
involving fieedom, it would ti ot probably hlave availed.  The
delay was grant,-d.  MIonday was the Probate  Court day.
The Jde saidl ne could hold his Probate C(ourt until 11
o'clock.,    chich would be sufficient for the necessary business.
Hlie accordigilv  adjourned our hearincg to Monday  at 11
o'clock.  \We uLnderstood( this was ratiher for our accommcdatioli  and I do not thillk it was a wilfl;t neglect of Probate
duty, as it is now construed to,be.
In the couirse of Saturday, an arrano,emetit was made by
the Rev.  Ir. Grimes, aided by Mvr. Williams, now of the
House oCf Representatives, Mr. Willis, and others, for the parchase of thle freedom of BLurnis.  Col. Sutttle agreed to release
him to Mr. Grimes for $1200, and in the course of the evening the money was raised.  I kInow nothing, personally, of
the transaction, as I was out of town, but as I learne-d it from
Mr. Grimes, it was in this way.  It was necessary to procure
the proper order or orders from Judge Loring for the release
of Burns fromn the custo)dy of the Marshal.   The  Marshal
held him under heavy responsibilities, andI of course would
not release him on ainy mere bills of sale.  Hle required the
proper legal warrants from  Judge Loring.  At Mr. Grimes'
request, a gentleman called onL Judge Loring, and asked him
to attend to the matter.   He said hie would do so, and met
the parties late at night, at his office.   He there drew the
1-9, 
REMARKS OF R. H. DANA, JR.
necessary warrant or other order for Ale Marshal, and at'the
same time, at the request of the parties, the proper paper for
Col. Snttle to signtI.  The Marshal either could not be found,
or declined to leave his office, and Judge Loring, Mr. Glimes
and the others went to the Marshal's office.  All supposed
then that the affair was over, and that in ten minutes Burns
would be released.   Put there they met the United States
District Attorney, who  objected to the release of Burns, in
behalf of the general government.   He  insisted upon  the
case being carried through, to its termination.  A discussion
lasted until after 12 o'clock, when Mr. Hallett objected that
it was Sunday, and declined to go any further.  As the Marslial seemed to be  under the direction of the United States
Attorney, all further attempts were given lip at that time.
They were renewed early Monday morning, but fell through,
and the trial proceeded.   The petitioners' colunsel take great
exception to the action of Judge Loring here.  They seemn
to overlook the fact that Judge Loring's intervention was necessary, and was requested by Mr. Grimes; and I am sure that
his whole conduct in that transaction was looked upon favorably by the friends of Burns.   I cannot doubt that if you
will call Mr. Grimes before you, you will find that he so
regards it now.
Mr. Phillips has testified to a remark which Judge Loring
made to him at Cambridge, on Friday afternoon, when he
went to get the letter to the Marshal.   I perfectly recollect
that when Mr. Phillips returned from Cambridge, he reported
to me a remark by Judge Loring, which he regarded as discouraging, and which struckli him unfavorably.   I do not receollect the words, but the remark was in substance as he now
states it.  Yet  I suppose Mr. Phillips would hardly desire to
place the removal on a single phrase, as to which there may
have been some misapprehension, or a failure to express correctly what was in the speaker's mind.
Now, Sir, we come to Judge Loring's final decision. I
have said that we had no defence, except the points of law
on the record.   The defence we were able to make. arose rom
accident.  If Col. Suttle's counsel had kept to the line of
strict proof, put in their record, and merely proved the identity by Mr. Brent, we could have done nothing.  They were
left to do more.   They examined Mr. Brent also on the points
of slavery and escape.  In this examination, it camne out that
Burns had been leased to Mr. Millspaugh, and escaped from his
custody, and not from Col. Suttle's, and that he was in Richmond on the 24th of March.   This course opened to us the
legal questions on which we relied, and which 1 need not
20 
ON THE REMOVAL OF JUDGE LORING.
repeat here. It also opened the evidence on the identity, all
turning on the date fixed by iMr. Brent. WTe showed that a
man sworn to be the prisoner, was-in Boston a fortnight before
the date fixed by Bit. Brent for his escape from Richmond.
It is not necessary to go into these points here.  Judge Loring
took two days to consider the case, and decided against us, on
the law and the facts.  I thotighlt this decision wrong then,
and I thinkl so now.  An article in the Boston Atlas, which
has been alluded to, entitled   The decision  which Judge
Loring might have given," contained my views of it at the
time, and I am quite as confident of their correctness now as
then.  I think the decided preponderance of oninion at the
Bar is against his decision.  Yet it is just to 1limn to say that
Mr. Phillips and I are both pretty well assured that, at least,
one sound lawyer, who has distinguished himself by opposition to the Fugitive Slave Law, considered tihe decision inevitable.  You wouild not remove himn for a wrong decision.
It must have been one so clearly wron,g as to show him
beyond doubt unfit for the jutidgeshlip  f an inferior court, or
to show corruption, or wilful error.
On a point like this, I would rather trust to a judgment
fiormedat the time. than to one which  may be warped by
intervening events.  It is for this reason that I violate  good
taste in referringl so often to my own words.   I fild that, in
a letter written at the time to a friiend who sympathized with
me, and thotught the decision wrong, I said, "Judge  Loring
decided wrong -  not fron  any corrllp)t motive, but from
causes partly psychological, and partly accidental.  This was
a case admnitting of,. arid, to somte extent, requiring. new
applications or developments of fundamental priiiciples, and
Judge Loring has none of those strong instincts inll favor of
justice and humanity, which, followed by judges at intervals,
in leading cases, have gradually chianged the jurisp)rudence of
England from a system of tyranny to a system of liberty
and the habits arid associations of years, as well as his natural
character, have led him  to look chiefly at the interests of
property, and the preservation of quiet and ease."
I think the true solution of the matter is this.  If it ha(1
been a mere question of property, governed by the ordinary
rules, it probably would have been decided against Burnts. As
an issue of liberty, to be governed by the presumptions and
principles to be applied to such an issue, judges and juries,
without conscious departure from duty, would probably differ,
according to the instincts and temper of mind they might
bring to the case. Judges had always allowed prisoners to
sit in their courts in irons. Judges of average humanity
21 
REMARKS OF R. H. DANA) JR.
acquiesced in it.  Presen-tly comes Lord IHolt, with his intrepidity of character, anld his strolig instincts of liberty, and
orders the irons off.  M-any judges of average humanity and
intellect might well have allowed the claim  of an  Englishmanl living i,l the  English  colonies, to bring his slave to
England and carry him away again, as he held him  in the
cocontes unnder laws recognized in England.   But Lord Holt,
not a philosopher or an orator, but ior intrepidity, originality,
and high instincts, the first manl in  the history  of British
jurisprudence, held that a slave could not breathe in England.
With what travail and labor was Lord Mantsfield broughit to
re-aifirm the same doctrine in the case of Somerset, more than
half a centunrv afterwards.   Philosophers agreed that the drop
of water was an  element, an  ultimate  substance.    Then
comes a manl    oi riginal pow-er. breaks thlroughl the conventional rutles a-nd theories, ai)d cleaves the drop of water it)
twain.  It does not follow that all who  preceded  him were
grossly incompetent men.   R.ecollect that the Supreme Court
of  Iassachusetts, and. the (Circuit and District Courts of this
Circuit, had  pronounced  the  law  constitutional.  No  man
doubts that all the judges of the Stupreme Court of the U. States
vwonld so hold.  The vast prepondierance of judicial and pro
fessional opinion in the country was in its tfavor; so much so,
thl-at Mr. Webster arrogantly said, that no mnan whose practice
was worth ~40 a year, thought otherwise.  The public sentimeijt of Boston had  si,,stainted the rendition of Sims, three
years b(efore.  JuTdge L,oring had grown up -unlder the shadow
of Mr. YVTebster and Judg-e Shaw;  he held their opinions and
those of the jnd-es of the other courts, and the opinion of
}1is friends, Judge CLurtis and Judge Spratgue, in the higihest
respect.  He was a man to receive the opinions, and to be
much governed by the influences about him.   He did not
bring to the cause the high instincts of liberty anrd justice, the
orii-ial power, tlhe independence, which the cauise required.
The decision was the result of this.  That is all that cani be
sai(i about it.  I find, too, that Mr. Sewall, who was conusaniit of the course of the trial, and took a deep interesfiin it,
says, in the article to which I have referred,
"-blhorrent to us as this act was, it is but justice to Judge Loring to believe that in performiing it, he was governed by a sense of du ty and official
responsibiliLv.  His views of duty in this respect, no doubt, differ fromn ours
as widely as pole irom pole; yet it is not easy to see how they unf-it himi for
a proh.ate juda,e.  Oug-it Le then to suffer punislhment for a decision which
he regarded as legal, and felt himself bound to make T   No person acting in
a judicial or ouasi-judicial capacity, ought to be sulbject to any penalty for
a uere error of judgment, whether it regards law or fact.  Tie judge and
the juror are equally protected by this principle.  To remove a judge from
the bench be,(ause he hlas offendedl the king by his decisions, and to fine and
2? 
ON TIIE REMOVAL OF JUDGE LORING.
imprison jurors for honest verdicts, shock us as exercises of arbitrary power
that tend to prostrate all independence of thought and action in those who
are subject to such tyranny.  Whether the decision of the judge or the
juror he right or wrong, he ought to be subjected to no penalty for it, unless
his conduct has been wilfully corrupt.  So it ought to be with the Commissioner.'
It is fair also to Judge Loring t) say that the public seutiment of State Street and  Beacoti Street, did not demand the
rendition of Burns.   It would have been better pleased with
his release.   The passage of the Nebraska Bill had caused a
great change  in public sentiment here; and  the men  wiho
subscribed money and armed themselves to send back Sirms
in 1S51, were  talking high  treason at the coriters of  the
streets.  A Whig President was not in power, and Jtdge Loritg held his office secure, at the will of his friend and relative
Judge Curtis.
Ar. Phillips.-\Ve are inot so sure of that.
Mr. Dana. —You do n-ot think Judge Curtis wouldl reIiove
him if he had released Blurns?
Mr. tiildieth and others. —We fear hIe w\ould.
Mr. Daua.-I do not think so.   Gentleimetn are.oing too
far. and doing injustice, right and left.   I have always borne
testimony to the absolute impartiality withi which Judge Curtis tried the Rescue cases.   I lknow his opillionls ol thle legal
questions, but I am slure he would do no slicit thing.
It is said that "p )ublic rtlumor " charges Jiudge Lorlijg %ithl
having communicated  his decisiotln to the Utnited States Marshall belore hie delivered it in Court.   Sir, we nmust do justice
even to out enemines.  W'e are int daiger of doingr ijtjustice
here.   I anm  (lite suire'I' ublic  runmor" is mnistaken.   On
Friday miornilg,  a few milutes before the Court was opened,
I vwent to the  M,iarshal, (Mr. Freemrnai) a-td told hiun I had a
question to p,it him, which he rniet answer or not, as he
pleased.   I  tasKed  him  if he liad atly klnowledge or intimatioti which way t'ie opinion was to be.  Ile said he had not
the least, any more than myself, and that hle had been obliged
to make his pre-,arations in the alternative.   He declined to
tell me  what hlis preparations  we,e in case of a taecisionl
against Burrns, but he told me what they were in case of his
ac(quittal, and assured mne that he hafd  1no warrant an-d knewv
of no  intention- to make a secoud arrest.   I told himi  I should
give my arm to Buriis an-d lead him out.   I thought that was
the safest for Burns. and the most likely to prevent violence.
I am quite sure, too, that one of Col. Suttle's chief friends,
a Southern  law  student, from Cambridge, who  was in his
confidence, did not know what the decision was to be. Novw,
whatever  faults Mr. Freeman may have, and he is a mere
23 
REMARKS  OF R. H. DANA, JRl
soldier at his post, and obeys the order of his chief, asking no
questions: he is a man to look you in the eye and tell you
the exact truth: I have always found him such. I would
not select him for my judge or my clergyman, but I believe
his word.  I saw  him  again to-day, and he not only confirmed what  I have now told you, but he added that the
nighnt before, he went to Judge Loring, and told him his sittuation, the great responsibility he was  under, the embarassimeints and risks of anc alternative preparation, and asked him
to let him know what the decision was to be. Judge Loring
positively refiused, and said that no man should know until it
was  pronounced.   So far from Burns being hurried off,  he
remained in the court room nearly two hours, and in the court
lhouse about four hours after the decision was pronounced,
and beoire thre procession moved.  There was time enough to
serve wirits of Habeas C,orpus and personal replevin, if we
thought tihey.were of any use, or could have got an officer
to serve t,hem.
Such is this sad story.  I have given it to you in the colors
in which it has always appeared to me, so far as Judge Loring
is concerned.   I trust that the last faculty which shall leave
me. wr-ill be that of doing justice to an opponent, that of discriminating in the conduct and motives of men whose course
I amn called upon to oppose.
'TI,he gravest objiection to the course of Judge Loring, that
wi-icih will prohbatly weigh  most with the Legislature, is in
the word,)s oC -Jir. Phillips'
' M   Len Judge Loring issued his warrant in the Burns case, he acted in
defiance of tle sole,mn convictions and settled purpose of Massachusetts,
convictions and purpose officially made known to him with all the solemnity of a statucLte."
The statute to whichi Mr. Phillips refers, is that of 1843,
chapter 69, sometimes called the Latimner Law.   I think the
conlstruction of this statute cannot admit of a doubt.   The
Fugitive Slave  Law, then in existence, the law of J 793,
required the use of the State machinery, that is, the magistrates
and executive officers of the several states, in the rendition
of slaves.  The State niachinlery of Massachusetts had been
used for that purpose. The case of Prigg v. Pennsylvania
decided that Congress had no power to require the States to
allow their judicial and executive machinery to be used for the
reLurn of slaves.  Massachusetts then passed the law of 1843,
prohibiting thile use of her civil machinery for that purpose.
This is the true meaning of the act. To give it the constructioli contended for by some of the petitioners, would be to
24 
ON THE RRMOVAL OF JUDGE LORING.
procure a conviction of a Judge by a strained construction of
a statute.
The passage of this law, and of other similar laws, I believe, in other States, was one of the excuses for the passage
of the law of S1850.  The South said, if Massachusetts refuses us the use of her State machinery, we will provide that
of the federal government. They did so. The act of 1850
was passed.  When  this law passed, all the U. S. Commissioners in this State were also State Magistrates, atid one was
a State Judge. Mr. Sumner, who was a Justice of the Peace
as well as a Commissioner, offered to issue his warrant and
sit as Commissioner in any case they would bring to him.
I believe he gave written notice to that effect to Mr. Marshal
Devens.  Mr. Curtis did act, in two cases, but no lawyer as
I am aware, contended that he had violated the law of 1843.
At the very first session of the Legislature after the passage
of the Fugitive Slave Law, an attempt was made to extend
the law of 1843 to the law of 1850. The first section of Mr.
Buckingham's bill (Sen. Doc. 51) so provides. The bill was
lost in the Senate, by  a vote of 13 to 16.  The entire
bill for the " further protection of personal liberty" was lost.
The same year, in the House of Representatives, resolutions
condemnatory of the Fugitive Slave Law of 1850, (House
Doc. 187) very moderate in their character, were lost by a
vote of 164 to 167. This was in the Coalition Legislature.
The same year, during the session of the Legislature, under
its very eye, occurred the rendition of Sims.  The Court
House was in chains. The judges went under them. The
Sheriff refused to serve your precepts. Massachusetts law
was suspended.  Your Courts were closed to all, except such
as the United States Marshal chose to admrnit.  Massachusetts
lay at the foot of the slave power.  What did the Legislature do?  Nothing! Absolutely nothing! Your Committee
examined the parties and reported the facts.  They complainied that Mr. Hallett and Mr. Tukey insulted them, but
said that the others were very polite. The Report was allowed to go by, and Massachusetts did nothing. The' popular elections, even, did not indicate that Massachusetts was
in earnlest in condemning the Fugitive Slave Law.
In 185', Mr. Sewall introduced his bill "further to protect
personal liberty." (Sen. Doe. 76.) It passed the Senate by a
vote of 18 to i6; but it was lost in tihe House, by a vote of
158 to 167, and its death-blow was given to it on the
motion of Mr. Henry J. Gardner, of Boston. Now you propose to address the same Mr. Gardner, in his capacity as Gov                l*I
25 
REMARK$ OF R. H. DANA, JR.,
ernor, and ask him to remove Judge Loring from office,
because he has flown in the face of the legislation of Massachutsetts! In the same year, resolutions carefully drawn
and moderate in their character, generally attributed to Mr.
Hoar of Woreester, intended to commit Massachusetts against
the Fugitive Slave Law, were defeated by a vote of 178 to
162.  In 1853, Massachusetts elected  Mr.  Everett to the
Senate of the United States, a man thoroughlycommitted to
the support of the Fugitive Slave Law.   And now, in 1855,
this very Committee is reporting a bill, the first section of
which proposes to extend the act of 1843 to the law of S1850;
to do what Massachusetts has refused to do up to this time.
Now, Mr. Chairman and gentlemen, I put it to you, as men
of candor, I put it to every petitioner in this hall,-has the
Legislature of Massachusetts done anything to condemn the
Fugitive Slave Law, since its passage?  Has she not rather
refused to do so? Do you forget the condition of the two
great parties of this country, from 1850 to 1854? Do you
forget the proscriptive resolutions, the erection of that law
into a constitutional compact, by both the parties?   Do  you
forget the condition of the Whig party in Massachusetts?
Do you forget the overpowering influence of Mr. Webster?
Do you forget how, after a few struggles of a reluctant
nature, how completely it was
"  subdued,"
"Even to the very quality of its lord'"
Am I, are we, of the Free Soil party, to forget what we have
said to the people of Massachusetts, that the unfaithfulness of
the two great parties, made the existence of a third party
necessary?  Ah, no, sir!  So far from flying in the face of
the legislative will of Massachusetts, I fear Judge  Loring
has acted too much in accordance with it.
Mr. Chairman, it is high time that I brought to a close
these remarks in which you have so long and so patiently
indulged me.   Let us review calmly the whole field.  Judge
Loring has not, by acting as commissioner, violated the law
of 1843. To hold that he has, would be giving the law a
forced and unwarrantable construction, a construction not put
upon it by any Legislature, or by your magistrates, or by either
the supporters or opponents of the Fugitive Slave Law, a
construction practically denied by Mr.  Buckingham's movement in 1851, and by the bill you are about to introduce.
He has not flown in the face of the legislative will of Massachusetts. On the contrary, I am ashamed to say, he has
26 
ON THE REMOVALt OF JUDGE LORING.
acted in conformity with it. Now, sir, would it be dignified,
would it be altogether chivalrous in Massachusetts, standing
as she does upon the record, with her history of the last five
years before her, having submitted to the insults of South
Carolina. having been bearded in her own courts by the slave
power, having been afraid to do one legislative act, or even to
offer the vain oblation of one legislative resolution, would it
be quite the part of dignity and gallantry for her, the moment
she feels a little returning strength and security, to turn
round and strike down one of her own citizens, a powerless
man, who followed but too closely her own lead?  I call him
a powerless man. He is so. Who is more powerless than a
man who has made himself unpopular? \Who more powerless
than a man who carries with him the consciousness of having
been the means, the instrument, of such a resultas the returningto bondage a man who  had escaped into a free land?
Much has been said about his powerful friends. His phalanx
of peculiar friends and supporters, who have thrown themselves about him, doing his cause, in my opinion, more
harm than good, whose generic name has become famous,
have considerable influence \vithin certain business and social
circles in the capital, but that, I think, has been somewhat
exaggerated.   Beyond these circles, in the State at large, they
are powerless.  They are worse than powerless, they are exceedingly unpopular.  Their support is an injury, and their
patronage a disparagement. A public sentiment is arising
which threatens to destroy the influence of those who made
themselves active in the defence and execution of the late
Fugitive Slave Law. No Sir, let Massachusetts first put herself right upon the record.  Let her lay a foundation  on
which she has a right to stand. Let her entitle herself to
throw the first stolie, and pluck out the mote.  Let her declare her legislative will, as she has not yet done, that her
magistrates shall not be commissioners under the law of 1850,
and let Judge Loring choose on that day which he will serve.
You have as much right to do that, as you have to say that
your Chief Justice shall not be a captain in the Uuited States
army. Let her declare that neither her civil nor her military
machinery shall be used for the execution of the Fugitive
Law of 1850. Then, if one of your magistrates shall offend
against you, cut him off, and cast him from you.   You will
be in a position to do it with dignity, as regards yourselves,
and in justice, as regards him.
I would end as I began. As between Mr. Edward Greely
Loring and the office he holds, we have nothing to say. We
27 
REMARKS OF R. I H. DANA, JR.
desire to see Massachusetts condemn, in any way she can with
dignity and prudence, the course of a magistrate of hers, who
voluntarily retains and executes an office, which, with his
views of the law of 1850, he knew might, and probably
would, require him to re-enslave an escaped bondman.  WIe do
not think that Judge Loring has violated any law of Massachusetts. We regret we cannot say that he has. We do not see
in his conduct in the office of Commissioner, evidence of such
a state of heart and head, as makes it expedient to remove
him from a judicial office in Massachusetts, to rouse the slumbering lion of the Constitution, to invoke that great ultimate
prerogative, which neither we nor our fathers have exercised.
We respectfully ask you to place Massachusetts right upon
the record, so that she can act with dignity and justice hereafter. We take the liberty to suggest to you, even, that you
may condemn the course of Judge Loring, in your report, for
acting as Commissioner at all, while he wore the judicial
ermine of Massachusetts, though it was not in law forbidden
him.  You may say to him, if you choose, "We cannot strike
you down with the weapon which the petitioners offer to our
hand, therefore go in peace." This would be no triumph to
him.  Say to the petitioners, " we deeply sympathize ill the
feeling which brings you here. We shall be governed by
the same feeling in our future action, but we do not think it
prudent, looking to all time, and to the rights and interests of
all men, we do not think it consistent With our dignity to
enter upon the course you have opened to us." The remonstrants believe that, in so doing, you will best preserve the
proper independence of your judges, and the proper balance
of your Constitution, which you are bound to regard.
These are motives to influence you. We have another motive, which, in regulating our action, has co-operated with
these. We fear that this step will involve the anti-slavery
men of Massachusetts in a needless and doubtful issue, which
they may live to regret; while we believe the course we
recommend will secure the respect of all, and an ultimate
ascendency to a sound and wholesome sentiment of liberty
in the Commonwealth.
28