Wendell Phillips, Theodore C. Pease, Speeches, Lectures and Letters of Wendell Phillips: Volume 1

Observe the language: “It was declared,” by the court, of course, and it is an “authoritative direction as to the duties of magistrates.” You conclude, Gentlemen, as every reader would, and would have a right to conclude, that this sentence, quoted from the 319th page of Cushing's Reports, is part of a decision of our Supreme Court. Not at all, Gentlemen; it is only a note to a decision, written, to be sure, by Judge Shaw, but on his private responsibility, and no more an “authoritative direction” to magistrates and people than any casual remark of Judge Shaw to his next-door neighbor as they stand together on the sidewalk. In his decision in the Burns case, Mr. Loring refers to the Sims case, above cited, (7 Cushing, 285,) “as the unanimous opinion of the judges of the Supreme Court of Massachusetts,” and then quotes this same sentence as part of the opinion, terming it “the wise words of our revered Chief Justice in that case.” Could this important mistake, twice made, on solemn occasions, be mere inadvertence? If he knew no better, he seems hardly fit for a judge. If any of his friends should claim he did know better, then, surely, he must have intended to deceive, and that does not much increase his fitness for the bench.

Mr. Chairman, there is one view of the Burns case which has not, I believe, been suggested. It is this. Massachusetts declares that the fugitive slave is constitutionally entitled to a jury trial. It is the general conviction of the North. Mr. Webster had once prepared an amendment to the Fugitive Slave Act securing jury trial. A Commissioner of humane and just instincts would be careful, therefore, to remember that the present act, on the contrary, made him both judge and jury. Now does any man in the Commonwealth believe that a jury would have ever sent Burns into slavery with six witnesses against one as to his identity, and his confession