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Title: The Trial of Theodore Parker
For the "Misdemeanor" of a Speech in Faneuil Hall against
Kidnapping, before the Circuit Court of the United States,
at Boston, April 3, 1855, with the Defence
Author: Theodore Parker
Release Date: February 17, 2010 [EBook #31298]
Language: English
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[Transcriber's Note: A table of contents has been added for the
reader's convenience. Errors listed in the Errata section have been
noted with a [Transcriber's Note]; other obvious printer errors have
been corrected without note.]
THE TRIAL
OF
THEODORE PARKER,
FOR THE
"MISDEMEANOR"
OF
A Speech in Faneuil Hall against Kidnapping,
BEFORE THE CIRCUIT COURT OF THE UNITED STATES,
AT BOSTON, APRIL 3, 1855.
WITH
THE DEFENCE,
BY
THEODORE PARKER,
MINISTER OF THE TWENTY-EIGHTH CONGREGATIONAL SOCIETY IN BOSTON.
BOSTON:
PUBLISHED FOR THE AUTHOR.
1855.
Entered according to Act of Congress, in the year 1855, by
THEODORE PARKER,
In the Clerk's Office of the District Court of the District of
Massachusetts.
CAMBRIDGE:
ALLEN AND FARNHAM, PRINTERS.
CONTENTS
PREFACE
INTRODUCTION
DEFENCE
ERRATA
OTHER WORKS BY THE SAME AUTHOR
TO
JOHN PARKER HALE
AND
CHARLES MAYO ELLIS,
MAGNANIMOUS LAWYERS,
FOR THEIR LABORS IN A NOBLE PROFESSION,
WHICH HAVING ONCE IN ENGLAND ITS KELYNG, ITS SAUNDERS, ITS JEFFREYS,
AND ITS SCROGGS, AS NOW IN AMERICA ITS SHARKEY, ITS GRIER, ITS CURTIS,
AND ITS KANE, HAS YET ALSO SUCH GENEROUS ADVOCATES OF HUMANITY AS
EQUAL THE GLORIES OF HOLT AND ERSKINE, OF MACKINTOSH AND ROMILLY,
FOR THEIR ELOQUENT AND FEARLESS DEFENCE OF TRUTH, RIGHT, AND LOVE,
THIS VOLUME IS DEDICATED,
BY THEIR CLIENT AND FRIEND,
THEODORE PARKER.
PREFACE.
TO THE PEOPLE OF THE FREE STATES OF AMERICA.
FELLOW-CITIZENS AND FRIENDS,--
If it were a merely personal matter for which I was arraigned before
the United States Court, after the trial was over I should trouble the
public no further with that matter; and hitherto indeed, though often
attacked, nay, almost continually for the last fourteen years, I have
never returned a word in defence. But now, as this case is one of such
vast and far-reaching importance, involving the great Human Right to
Freedom of Speech, and as the actual question before the court was
never brought to trial, I cannot let the occasion pass by without
making further use of it.
When Judge Curtis delivered his charge to the Grand-Jury, June 7th,
1854, I made ready for trial, and in three or four days my line of
defence was marked out--the fortifications sketched, the place of the
batteries determined; I began to collect arms, and was soon ready for
his attack. When that Grand-Jury, summoned with no special reference
to me, refused to find a bill and were discharged, I took public
notice of the conduct of Judge Curtis, in a Sermon for the Fourth of
July.[1] But I knew the friends of the fugitive slave bill at Boston
and Washington too well to think they would let the matter sleep; I
knew what arts could be used to pack a jury and procure a bill. So I
was not at all surprised when I heard of the efforts making by the
Slave Power in Boston to obtain an indictment by another grand-jury
summoned for that purpose. It need not be supposed that I was wholly
ignorant of their doings from day to day. The arrest was no
astonishment to me. I knew how much the reputation of this Court and
of its Attorney depended on the success of this prosecution. I knew
what private malignity was at work.
[Footnote 1: 2 Parker's Additional Speeches, 178-283.]
After my arraignment I made elaborate preparation for my defence. I
procured able counsel, men needing no commendation, to manage the
technical details which I knew nothing about and so could not meddle
with, while I took charge of other matters lying more level to my own
capacity. I thought it best to take an active part in my own
defence,--for the matter at issue belonged to my previous studies and
general business; my personal friends and the People in general,
seemed to expect me to defend myself as well as I could.
A great political revolution took place between the Judge's charge and
my arraignment, June 7th, and November 29th, 1854, and I thought the
Court would not allow the case to come to open argument. For
certainly, it would not be a very pleasant thing for Judge Sprague and
Judge Curtis, who have taken such pains to establish slavery in
Massachusetts, to sit there--each like a travestied Prometheus,
chained up in a silk gown because they had brought to earth fire from
the quarter opposite to Heaven--and listen to Mr. Hale, and Mr.
Phillips and other anti-slavery lawyers, day after day: there were
facts, sure to come to light, not honorable to the Court and not
pleasant to look at in the presence of a New England community then
getting indignant at the outrages of the Slave Power. I never thought
the case would come to the jury. I looked over the indictment, and to
my unlearned eye it seemed so looped and windowed with breaches that a
skilful lawyer might drive a cart and six oxen through it in various
directions; and so the Court might easily quash the indictment and
leave all the blame of the failure on the poor Attorney--whom they
seemed to despise, though using him for their purposes--while they
themselves should escape with a whole reputation, and ears which had
not tingled under manly speech.
Still, it was possible that the trial would come on. Of course, I knew
the trial would not proceed on the day I was ordered to appear--the
eighty-fifth anniversary of the Boston Massacre. It would be
"unavoidably postponed," which came to pass accordingly. The Attorney,
very politely, gave me all needed information from time to time.
At the "trial," April 3d, it was optional with the defendant's counsel
to beat the Government on the indictment before the Court; or on the
merits of the case before the Jury. The latter would furnish the most
piquant events, for some curious scenes were likely to take place in
the examination of witnesses, as well as instruction to be offered in
the Speeches delivered. But on the whole, it was thought best to blow
up the enemy in his own fortress and with his own magazine, rather
than to cut him to pieces with our shot in the open field. So the
counsel rent the indictment into many pieces--apparently to the great
comfort of the Judges, who thus escaped the battle, which then fell
only on the head of the Attorney.
At the time appointed I was ready with my defence--which I now print
for the Country. It is a Minister's performance, not a lawyer's. Of
course, I knew that the Court would not have allowed me to proceed
with such a defence--and that I should be obliged to deliver it
through the press. Had there been an actual jury trial, I should have
had many other things to offer in reference to the Government's
evidence, to the testimony given before the grand-jury, and to the
conduct of some of the grand-jurors themselves. So the latter part of
the defence is only the skeleton of what it otherwise might have
been,--the geological material of the country, the Flora and Fauna
left out.
It would have been better to publish it immediately after the decision
of the case: but my _brief_ was not for the printer, and as many
duties occurred at that time, it was not till now, in a little
vacation from severer toils, that I have found leisure to write out my
defence in full. Fellow-Citizens and Friends, I present it to you in
hopes that it may serve the great cause of Human Freedom in America
and the world; surely, it has seldom been in more danger.
THEODORE PARKER.
BOSTON, _24th August_, 1855.
INTRODUCTION.
On Tuesday, the 23d of May, 1854, Charles F. Suttle of Virginia,
presented to Edward Greeley Loring, Esquire, of Boston, Commissioner,
a complaint under the fugitive slave bill--Act of September 18th,
1850--praying for the seizure and enslavement of Anthony Burns.
The next day, Wednesday, May 24th, Commissioner Loring issued the
warrant: Mr. Burns was seized in the course of the evening of that
day, on the false pretext of burglary, and carried to the Suffolk
County Court House in which he was confined by the Marshal, under the
above-named warrant, and there kept imprisoned under a strong and
armed guard.
On the 25th, at about nine o'clock in the morning, the Commissioner
proceeded to hear and decide the case in the Circuit Court room, in
which were stationed about sixty men serving as the Marshal's guard.
Seth J. Thomas, Esquire, and Edward Griffin Parker, Esquire, members
of the Suffolk Bar, appeared as counsel for Mr. Suttle to help him and
Commissioner Loring make a man a Slave. Mr. Burns was kept in irons
and surrounded by "the guard." The Slave-hunter's documents were
immediately presented, and his witness was sworn and proceeded to
testify.
Wendell Phillips, Theodore Parker, Charles M. Ellis, and Richard H.
Dana, with a few others, came into the Court room. Mr. Parker and some
others, spoke with Mr. Burns, who sat in the dock ironed, between two
of the Marshal's guard. After a little delay and conference among
these four and others, Mr. Dana interrupted the proceedings and asked
that counsel might be assigned to Mr. Burns, and so a defence allowed.
To this Mr. Thomas, the senior counsel for the Slave-hunters,
objected. But after repeated protests on the part of Mr. Dana and Mr.
Ellis, the Commissioner adjourned the hearing until ten o'clock,
Saturday, May 27th.
On the evening of Friday, May 26th, there was a large and earnest
meeting of men and women at Faneuil Hall. Mr. George R. Russell, of
West Roxbury, presided; his name is a fair exponent of the character
and purposes of the meeting, which Dr. Samuel G. Howe called to order.
Speeches were made and Resolutions passed. Mr. Phillips and Mr.
Parker, amongst others, addressed the meeting; Mr. Parker's speech, as
reported and published in the newspapers, is reprinted in this volume,
page 199. While this meeting was in session there was a gathering of a
few persons about the Court House, the outer doors of which had been
unlawfully closed by order of the Marshal; an attempt was made to
break through them and enter the building, where the Supreme Court of
Massachusetts was sitting engaged in a capital case; and the Courts of
this State must always sit with open doors. In the strife one of the
Marshal's guard, a man hired to aid in the Slave-hunt, was killed--but
whether by one of the assailing party, or by the Marshal's guard, it
is not yet quite clear. It does not appear from the evidence laid
before the public or the three Grand-Juries, that there was any
connection between the meeting at Faneuil Hall and the gathering at
the Court House.
Saturday, 27th, at ten o'clock, the Commissioner opened his Court
again, his prisoner in irons before him. The other events are well
known. Mr. Burns was taken away to Slavery on Friday, June 2d, by an
armed body of soldiers with a cannon.
The May Term of the Circuit Court at Boston began on the 15th of that
month, and the Grand-Jury for that term had already been summoned.
Here is the list:--
UNITED STATES CIRCUIT COURT, }
MASSACHUSETTS DISTRICT. }
May Term, 1854. ss. May 15, 1854.
GRAND-JURY.
1 Sworn. Isaac Tower, Randolph, Foreman.
2 " Elbridge G. Manning, Andover.
3 " Asa Angier, "
4 " Ballard Lovejoy, "
5 " Levi Eldridge, Chatham.
6 " Isaac B. Young, "
7 " Josiah Peterson, Duxbury.
8 " James Curtis, "
9 Not Sworn. William Amory, Boston, Excused first day.
Member of the bar.
10 Sworn. James P. Bush, " Absent June 28th.
11 " John Clark, "
12 " Charles H. Mills, "
13 " William N. Tyler, "
14 " Samuel Weltch, "
15 " Reuben Nichols, Reading.
16 " Benjamin M. Boyce, "
17 " Ephraim F. Belcher, Randolph.
18 " Thomas S. Brimblecome, Fairhaven.
19 " Obed F. Hitch, "
20 " Lowell Claflin, Hopkinton.
21 " William Durant, Leominster.
22 " Charles Grant, "
23 " Jeremiah B. Luther, Douglas.
On the 7th of June, Judge Curtis gave to this Grand-Jury his
charge.[2] In that he spoke of the enforcement of the fugitive slave
bill; and he charged the Jury especially and minutely upon the Statute
of the United States of 1790, in relation to resisting officers in
service of process as follows.
[Footnote 2: The charge is printed below, at page 170.]
That not only those who are present and actually obstruct, resist, and
oppose, and all who are present leagued in the common design, and so
situated as to be able in case of need, to afford assistance to those
actually engaged; but all who, though absent, did procure, counsel,
command, or abet others to commit the offence; and all who, by
indirect means, by _evincing an express liking, approbation, or assent
to the design, were liable as principals_. And he added, "My
instruction to you is, that language addressed to persons who
immediately afterwards commit an offence, actually intended by the
speaker to incite those addressed to commit it, and adapted thus to
incite them, is such a counselling, or advising to the crime as the
law contemplates, and the person so inciting others is liable to be
indicted as a principal," and _it is of no importance that his advice
or directions were departed from in respect to the time, or place, or
precise mode, or means of committing it_.
That Jury remained in session a few weeks: pains were taken to induce
them to find bills against the speakers at Faneuil Hall; but they
found no indictment under the law of 1790, or that of 1850; they were
discharged.
On the 22d of September, _venires_ were issued by order of the Court
for a new Grand-Jury; and, on the 16th of October, twenty-three were
returned by Marshal Freeman, and impanelled. Here is the list of new
Grand-Jurors:--
UNITED STATES CIRCUIT COURT, }
MASSACHUSETTS DISTRICT. }
October Term, 1854. ss. October 16, 1854.
GRAND-JURY.
1 Sworn. Enoch Patterson, Jr., Boston, Foreman.
2 " David Alden, "
3 " Stephen D. Abbott, Andover.
4 " Isaac Beal, Chatham.
5 " John Burrill, Reading.
6 " Mathew Cox, Boston.
7 " Richard B. Chandler, Duxbury.
8 " Charles L. Cummings, Douglas.
9 " Charles Carter, Leominster.
10 " Warren Davis, Reading.
11 " William W. Greenough, Boston.
12 " George O. Hovey, "
13 " John M. Howland, Fairhaven.
14 Sworn. Manson D. Haws, Leominster.
15 " John Holbrook, Randolph.
Excused. Nathaniel Johnson, Hopkinton, Excused first day,
October 16th, for
the term.
16 Sworn. George Londen, Duxbury.
17 " Nathan Moore, Andover.
18 " Samuel P. Ridler, Boston.
19 " Christopher Ryder, Chatham.
20 " John Smith, Andover.
21 " Appollos Wales, Randolph.
22 " Samuel L. Ward, Fairhaven.
This Grand-Jury was not charged by the Judge upon the statute of 1790,
or 1850, but was referred to Mr. Hallett, the Attorney, for the
instructions previously given to the Jury that had been discharged,
namely, for his charge of June 7th, already referred to. Mr. William
W. Greenough, brother-in-law of Judge Curtis, was one of the Jury.
They found the following indictment against Mr. Parker:--
UNITED STATES OF AMERICA.
_Circuit Court of the United States of America, for the
District of Massachusetts._
At a Circuit Court of the United States of America, for the
District of Massachusetts, begun and holden at Boston, the
aforesaid District, on the sixteenth day of October, in the
year of our Lord one thousand eight hundred and fifty-four
(the fifteenth day of said October being Sunday).
The Jurors of the United States within the aforesaid
District, on their oath, present.
1st. That heretofore to wit,--on the twenty-fourth day of
May, in the year of our Lord one thousand eight hundred and
fifty-four, a certain warrant and legal process directed to
the Marshal of the said District of Massachusetts, or either
of his Deputies, was duly issued under the hand and seal of
Edward G. Loring, Esquire, who was then and there a
Commissioner of the Circuit Court of the United States, for
said District, which said warrant and legal process was duly
delivered to Watson Freeman, Esquire, who was then and there
an officer of the United States, to wit, Marshal of the
United States, for the said District of Massachusetts, at
Boston, in the District aforesaid, on the said twenty-fourth
day of May in the year aforesaid, and was of the purport and
effect following, that is to say:--
UNITED STATES OF AMERICA.
MASSACHUSETTS DISTRICT, SS.
To the Marshal of our District of Massachusetts, or either
of his Deputies, _Greeting_:
In the name of the President of the United States of
America, you are hereby commanded forthwith to apprehend
Anthony Burns, a negro man, alleged now to be in your
District, charged with being a fugitive from labor, and with
having escaped from service in the State of Virginia, if he
may be found in your precincts, and have him forthwith
before me, Edward G. Loring, one of the Commissioners of the
Circuit Court of the United States for the said District,
then and there to answer to the complaint of Charles F.
Suttle, of Alexandria, in the said State of Virginia,
Merchant, alleging under oath that the said Anthony Burns on
the twenty-fourth day of March last, did and for a long time
prior thereto had, owed service and labor to him the said
Suttle, in the said State of Virginia, under the laws
thereof, and that, while held to service there by said
Suttle, the said Burns escaped from the said State of
Virginia, into the State of Massachusetts; and that the said
Burns still owes service and labor to said Suttle in the
said State of Virginia, and praying that said Burns may be
restored to him said Suttle in said State of Virginia, and
that such further proceedings may then and there be had in
the premises as are by law in such cases provided.
Hereof fail not, and make due return of this writ, with your
doings therein before me.
Witness my hand and seal at Boston, aforesaid, this
twenty-fourth day of May, in the year one thousand eight
hundred and fifty-four.
EDWARD G. LORING, _Commissioner_. [L.S.]
And the Jurors aforesaid do further present, that the said
warrant and legal process, being duly issued and delivered
as aforesaid, afterwards to wit, on the twenty-fifth day of
May, in the year aforesaid, at Boston in said District, the
said Watson Freeman then and there being an officer of the
said United States, to wit Marshal of the District
aforesaid, and in pursuance of said warrant and legal
process, did then and there arrest the said Anthony Burns
named therein, and had him before the said Edward G. Loring,
Commissioner, for examination--and thereupon the hearing of
the said case was adjourned by the said Commissioner until
Saturday the twenty-seventh day of May, in the year
aforesaid, at ten o'clock in the forenoon; and the said
Marshal, who had so made return of the said Warrant, was
duly ordered by the said Commissioner to retain the said
Anthony Burns in his custody, and have him before the said
Commissioner on the said twenty-seventh day of May in the
year aforesaid, at the Court House in said Boston, which
said last-mentioned legal process and order was duly issued
under the hand of the said Edward G. Loring, Commissioner,
and was of the purport and effect following, that is to say:
U.S. OF AMERICA, DISTRICT OF MASSACHUSETTS.
_Boston, May 25_, 1854.
And now the hearing of this case being adjourned to
Saturday, May 27, 1854, 10 A.M., the said Marshal, who has
made return of this warrant, is hereby ordered to retain the
said Anthony Burns in his custody, and have him before me at
the time last mentioned, at the Court House in Boston, for
the further hearing of the Complaint on which the warrant
was issued.
EDWARD G. LORING, _Commissioner_.
And the Jurors aforesaid do further present, that on the
twenty-sixth day of May, in the year aforesaid, in pursuance
of the warrant and legal process aforesaid, and of said
further legal process and order last mentioned, the said
Watson Freeman, Marshal as aforesaid, then and there, at the
said Court House in said Boston, had in his custody the
person of the said Anthony Burns, in the due and lawful
execution of the said warrant and legal process, and of the
said further legal process and order, in manner and form as
he was therein commanded--and one Theodore Parker, of
Boston, in said District, Clerk, then and there well knowing
the premises, with force and arms did knowingly and wilfully
obstruct, resist, and oppose the said Watson Freeman, then
and there being an officer of the said United States, to
wit, Marshal of the said District, in serving and attempting
to serve and execute the said warrant and legal process, and
the said further legal process and order in manner and form
as he was therein commanded, to the great damage of the said
Watson Freeman, to the great hinderance and obstruction of
Justice, to the evil example of all others, in like case
offending, against the peace and dignity of the said United
States, and contrary to the form of the Statute in such case
made and provided.
2d. And the Jurors aforesaid, on their oath aforesaid, do
further present, that on the twenty-sixth day of May, in the
year of our Lord one thousand eight hundred and fifty-four,
at Boston, in said District, one Theodore Parker, of Boston,
in said District, Clerk, with force and arms, did knowingly
and wilfully obstruct, resist, and oppose one Watson
Freeman, who was then and there the Marshal of the United
States of America, for the District of Massachusetts, and an
officer of the said United States, in serving and attempting
to serve and execute a certain warrant and legal process,
which before that time, to wit, on the twenty-fourth day of
May, in the year of our Lord one thousand eight hundred and
fifty-four, had been duly issued under the hand and seal of
Edward G. Loring, Esquire, a Commissioner of the Circuit
Court of the United States, for said District of
Massachusetts, and directed to the Marshal of the District
of Massachusetts, or either of his deputies, which said
warrant and legal process the said Freeman, in the due and
lawful execution of his said office, had then and there in
his hands and possession for service of the same, and which
he was then and there serving and attempting to serve and
execute; which said warrant commanded the said Freeman to
apprehend one Anthony Burns and to have him forthwith before
the said Commissioner, then and there to be dealt with
according to law. Against the peace and dignity of the said
United States, and contrary to the form of the Statute in
such case made and provided.
3d. And the Jurors aforesaid, on their oath aforesaid, do
further present, that on the twenty-sixth day of May, in the
year of our Lord one thousand eight hundred and fifty-four,
at Boston, in said District, the said Theodore Parker, with
force and arms, did knowingly and wilfully obstruct, resist,
and oppose one Watson Freeman, who was then and there an
officer of the said United States, to wit, the Marshal of
the United States for the said District of Massachusetts, in
serving and attempting to serve and execute a certain legal
process which before that time, to wit, on the 25th day of
May, in the year of our Lord one thousand eight hundred and
fifty-four, had been duly issued under the hand of Edward G.
Loring, who was then and there a Commissioner of the Circuit
Court of the United States, for the said District of
Massachusetts, and was then and there duly empowered to
issue said legal process, and which said legal process was
duly committed for obedience and execution to the said
Freeman, Marshal as aforesaid, wherein and whereby and in
pursuance of the command whereof the said Freeman was then
and there lawfully retaining, detaining, and holding one
Anthony Burns for the further hearing and determination of a
certain complaint, upon which a warrant before that time, to
wit, on the twenty-fourth day of said May, had been duly
issued under the hand and seal of the said Commissioner, by
force of which warrant the said Anthony Burns had been duly
arrested and apprehended by the said Freeman, and in
execution of the same, on the twenty-fifth day of said May
had been brought by the said Freeman before the said
Commissioner.
4th. And the jurors aforesaid, on their oath aforesaid, do
further present, that on the twenty-sixth day of May, in the
year of our Lord one thousand eight hundred and fifty-four,
at Boston, in said district, the said Theodore Parker, with
force and arms, did knowingly and wilfully obstruct, resist,
and oppose one Watson Freeman, who was then and there an
officer of the said United States, to wit, Marshal of the
United States, for the District of Massachusetts, in serving
and attempting to serve and execute a certain warrant and
legal process, which before that time, to wit, on the
twenty-fourth day of May, in the year of our Lord one
thousand eight hundred and fifty-four, had been duly issued
under the hand and seal of Edward G. Loring, Esquire, a
Commissioner of the Circuit Court of the United States, for
the District of Massachusetts, and directed to the Marshal
of the said District of Massachusetts or either of his
Deputies, which the said Freeman, in the due and lawful
execution of his said office, had then and there in his
hands and possession for service of the same, and which he
was then and there serving and attempting to serve and
execute; which warrant commanded the said Freeman to
apprehend one Anthony Burns, and to have him forthwith
before the said commissioner and that such further
proceedings might then and there be had in the premises, as
are by law in such cases provided,--and also in serving and
attempting to serve and execute a certain further legal
process which before that time, to wit, on the twenty-fifth
day of May, in the year aforesaid, had been duly issued
under the hand of the said Commissioner, and duly committed
for obedience and execution to the said Freeman, wherein and
whereby, and in pursuance of the command whereof, the said
Freeman was then and there lawfully retaining, detaining,
and holding the said Anthony Burns for the further hearing
and determination of a certain complaint upon which the
warrant aforesaid had been issued by the said Commissioner.
5th. And the Jurors aforesaid on their oath aforesaid, do
further present that one Theodore Parker, of Boston, in said
District, Clerk, on the 26th day of May, in the year of our
Lord one thousand eight hundred and fifty-four, at Boston,
in the said District of Massachusetts, with force and arms,
in and upon one Watson Freeman, then and there in the peace
of the said United States being, an assault did make, he the
said Freeman also then and there being an officer of the
said United States, to wit, Marshal of the United States,
for the said District of Massachusetts, and then and there
also being in the due and lawful discharge of his duties as
such officer. And so the jurors aforesaid, on their oath
aforesaid, do say and present that the said Theodore Parker,
at Boston aforesaid, on the said twenty-sixth day of said
May, with force and arms assaulted the said Freeman as such
officer, and knowingly and wilfully obstructed, resisted,
and opposed him in the discharge of his lawful duties in
manner and form aforesaid, against the peace and dignity of
the said United States, and contrary to the form of the
Statute in such cases made and provided. And the Jurors
aforesaid, on their oath aforesaid, do further present that
the said Theodore Parker was first apprehended in said
District of Massachusetts, after committing the aforesaid
offence, against the peace and dignity of the said United
States, and contrary to the form of the statute in such case
made and provided. A true bill.
ENOCH PATTERSON, JR., _Foreman_.
B.F. HALLETT, _United States Attorney for the District of
Massachusetts_.
Similar indictments were found against Mr. Phillips, Mr. Stowell, Rev.
T.W. Higginson, John Morrison, Samuel T. Proudman, and John C. Cluer.
Mr. Parker was arraigned on Wednesday, November 29th, and ordered to
recognize in bonds of $1,500 for his appearance at that Court, on the
5th of March, 1855. His bondsmen were Messrs. Samuel May, Francis
Jackson, and John R. Manley; his counsel were Hon. John P. Hale, and
Charles M. Ellis, Esq. The other gentlemen were arraigned afterwards
at different times.
After considerable uncertainty about the engagements of Hon. Justice
Curtis, Tuesday, April 3d, was fixed for the commencement of the
trials. At that time there appeared as counsel for the government,
Hon. Benjamin F. Hallett, District Attorney, and Elias Merwin, Esq.,
formerly a law partner of Judge Curtis; on the other side were Hon.
John P. Hale, and Charles M. Ellis, Esq., for Mr. Parker; Wm. L. Burt,
Esq., John A. Andrew, Esq., and H.F. Durant, Esq., counsel for Messrs.
Phillips, Higginson, Stowell, Bishop, Morrison, Proudman, and Cluer.
Mr. Hale, as senior counsel, stated to the court that the counsel for
the defendants in several of the cases had conferred, and
concluded--on the supposition that the Court and Government would
assent to the plan as most for their own convenience, as well as that
of the defendants' counsel--to file the like motion on the different
cases; and, instead of each counsel going over the whole ground for
each case, to divide the matter presented for debate, and for each to
discuss some particular positions on behalf of them all. This was
assented to; and motions, of which the following is a copy, were filed
in the several cases:--
CIRCUIT COURT OF THE UNITED STATES, MASSACHUSETTS DISTRICT,
SS.
_United States by Indictment_ v. _Theodore Parker._
And now said Theodore Parker comes and moves that the
indictment against him be quashed, because,
"1. The writ of venire for the jury that found said
indictment was directed to and returned by Watson Freeman,
the Marshal, who was not an indifferent person, and it was
not served and returned as the law directs.
"2. Because said Jury was not an impartial Jury of the
District, designated as the laws require, but the jury
Districts for this court embrace but a portion of the
District and of the population, and said jury was in fact
chosen and designated from but a fraction of the District
and contrary to law.
"3. Because the matters and things alleged in said
indictment do not constitute any crime under the statute on
which said indictment is framed, the said statute not
embracing them, or being, so far as it might embrace them,
repealed by the statute of eighteen hundred and fifty.
"4. Because said indictment does not allege and set forth
fully and sufficiently the authority and the proceedings
whereon the alleged warrant and order were based, or facts
sufficient to show that the alleged process and order were
lawfully issued by any person duly authorized, and his
authority and jurisdiction, and that the same were within
such jurisdiction, and issued by the authority of the law,
and originated, issued, and directed as the law prescribes;
said warrant and order not being alleged to have issued from
any court or tribunal of general or special jurisdiction,
but by a person vested with certain specific statute
authority.
"5. Because said indictment and the several counts thereof
are bad on the face of them, as follows, viz.:--
"First, it nowhere appearing that the same were found by a
grand-jury, because the second and third counts do not
conclude, against the form of the statute, and have no
conclusion, because the third and fourth counts do not set
forth the estate, degree, or mystery of the person therein
charged.
"Because said indictment and the counts thereof are
repugnant and inconsistent, the same being based on an
alleged obstruction, resistance, and opposition to the
service of an action, order, or warrant, which is therein
averred to have been already served, executed, and returned.
"Because the first and fifth counts are double.
"Because the alleged order of May 25th, referred to therein,
was a void and illegal, order.
"Because, if the alleged warrant was served as therein
alleged, said Watson Freeman did not, and by law could not
thereafter, hold the person described therein, under any
process or order.
"And because the same do not set forth and allege fully and
specifically the acts charged to be offences against the
statute, so as to inform said party charged, of the nature
and cause of the accusation.
"6. Because the warrant set forth and referred to therein
was void on its face, and issued from and ran into a
jurisdiction not authorized by law, and directed the arrest
of a person without legal cause, and because said indictment
is otherwise bad, uncertain, and insufficient."
Mr. Wm. L. Burt commenced the argument of the motions, and presented
several of the points. He was followed by Mr. C.M. Ellis, J.A. Andrew,
and H.F. Durant, who severally discussed some of the grounds of the
motions.
Elias Merwin, Esquire, and Mr. Attorney Hallett, replied.
The Court stated that they did not wish to hear Hon. John P. Hale, who
was about to rejoin and close in support of the motion, and decided
that the allegation, on the indictment, that Edward G. Loring was a
Commissioner of the Circuit Court of the United States for said
District, was not a legal averment that he was such a Commissioner as
is described in the bill of 1850, and therefore the indictments were
bad.
The Court said they supposed it to be true that Mr. Loring was such a
Commissioner, and that his authority could be proved by producing the
record of his appointment; that they did not suppose the absence of
this averment could be of any practical consequence to the defendants,
so far as respected the substantial merits of the cases; and it was
true the objection to the indictment was "technical;" but they held it
sufficient, notwithstanding the averment that the warrant was "_duly
issued_," and ordered the indictment against Stowell to be quashed. On
every other point, save that that the Court could properly construct
the Jury _roster_ and return the Jury from a portion of the District,
the Judge said they would express no opinion.
Mr. Hallett insisted on his right to enter a _nolle prosequi_ in the
other cases; and the Judges decided that, though all the cases had
been heard upon the motion, yet as it could make no difference whether
an entry were made that this indictment be quashed, or an entry of
_nolle prosequi_, the Attorney might enter a _nolle prosequi_ if he
chose to do so _then_, before the Court passed any order on the
motions.
Mr. Hallett accordingly entered a _nolle prosequi_ in all the other
cases, and the whole affair was quashed.[3]
[Footnote 3: See Law Reporter for June, 1855.]
DEFENCE.
MAY IT PLEASE THE COURT:
GENTLEMEN OF THE JURY.--It is no trifling matter which comes before
you this day. You may hereafter decide on millions of money, and on
the lives of your fellow men; but it is not likely that a question of
this magnitude will ever twice be brought before the same jurymen.
Opportunities to extend a far-reaching and ghastly wickedness, or to
do great service for mankind, come but seldom in any man's life. Your
verdict concerns all the people of the United States; its influence
will reach to ages far remote, blessing or cursing whole generations
not yet born. The affair is national in its width of reach,--its
consequences of immense duration.
In addressing you, Gentlemen, my language will be more didactic than
rhetorical, more like a lecture, less like a speech; for I am not a
lawyer but a minister, and do not aim to carry a Measure, which with
you will go of its own accord, so much as to set forth a Principle
that will make such prosecutions as impossible hereafter, as a
conviction now is to-day.
Gentlemen, I address you provisionally, as Representatives of the
People. To them, my words are ultimately addressed,--to the People of
the Free States of America. I must examine many things minutely, not
often touched upon in courts like this. For mine is a Political Trial;
I shall treat it accordingly. I am charged with no immoral act--with
none even of selfish ambition. It is not pretended that I have done a
deed, or spoken a word, in the heat of passion, or vengeance, or with
calculated covetousness, to bring money, office, or honor, to myself
or any friend. I am not suspected of wishing to do harm to man or
woman; or with disturbing any man's natural rights. Nay, I am not even
charged with such an offence. The Attorney and the two Judges are of
one heart and mind in this prosecution; Mr. Hallett's "Indictment" is
only the beast of burthen to carry to its own place Mr. Curtis's
"Charge to the Grand-Jury," fit passenger for fitting carriage! The
same tree bore the Judge's blossom in June, and the Attorney's fruit
in October,--both reeking out the effluvia of the same substance. But
neither Attorney nor Judge dares accuse me of ill-will which would
harm another man, or of selfishness that seeks my own private
advantage. No, Gentlemen of the Jury, I am on trial for my love of
Justice; for my respect to the natural Rights of Man; for speaking a
word in behalf of what the Declaration of Independence calls the
"self-evident" Truth,--that all men have a natural, equal, and
unalienable Right to Life, Liberty, and the pursuit of Happiness. I am
charged with words against what John Wesley named, the "Sum of all
Villanies," against a national crime so great, that it made
freethinking Mr. Jefferson, with all his "French Infidelity,"
"tremble" when he remembered "that God is just." I am on trial for my
manly virtue,--a Minister of the Christian Religion on trial for
keeping the Golden Rule! It is alleged that I have spoken in Boston
against kidnapping in Boston; that in my own pulpit, as a minister, I
have denounced Boston men for stealing my own parishioners; that as a
man, in Faneuil Hall, the spirit of James Otis, of John Hancock, and
three Adams's about me, with a word I "obstructed" the Marshal of
Boston and a Boston Judge of Probate, in their confederated attempts
to enslave a Boston man. When the Government of the United States has
turned kidnapper, I am charged with the "misdemeanor" of appealing
from the Atheism of purchased officials to the Conscience of the
People; and with rousing up Christians to keep the golden rule, when
the Rulers declared Religion had nothing to do with politics and there
was no Law of God above the fugitive slave bill!
Such are the acts charged. Gentlemen of the Jury, you are summoned
here to declare them a Crime, and then to punish me for this
"offence!" You are the Axe which the Government grasps with red hand
to cleave my head asunder. It is a trial where Franklin Pierce,
transiently President of the United States, and his official
coadjutors,--Mr. Caleb Cushing, Mr. Benj. R. Curtis, and Mr. Benj. F.
Hallett,--are on one side, and the People of the United States on the
other. As a Measure, your decision may send me to jail for twelve
months; may also fine me three hundred dollars. To me personally it is
of very small consequence what your verdict shall be. The fine is
nothing; the imprisonment for twelve months--Gentlemen, I laugh at it!
Nay, were it death, I should smile at the official gibbet. A verdict
of guilty would affix no stain to my reputation. I am sure to come out
of this trial with honor--it is the Court that is sure to suffer
loss--at least shame. I do not mean the Court will ever feel remorse,
or even shame, for this conduct; I am no young man now, I know these
men,--but the People are sure to burn the brand of shame deep into
this tribunal. The blow of that axe, if not parried, will do me no
harm.
But it is not I, merely, now put to trial. Nay, it is the unalienable
Rights of Humanity, it is truths self-evident. For on the back of that
compliant Measure, unseen, there rides a Principle. The verdict
expected of you condemns liberal institutions: all Religion but
priestcraft--the abnegation of religion itself; all Rights but that to
bondage--the denial of all rights. The word which fines me, puts your
own purse in the hands of your worst enemies; the many-warded key
which shuts me in jail, locks your lips forever--your children's lips
forever. No complaint against oppression hereafter! Kidnapping will go
on in silence, but at noonday, not a minister stirring. Meeting-houses
will be shut; all court houses have a loaded cannon at their door,
chains all round them, be stuffed with foreign soldiers inside, while
commissioners swear away the life, the liberty, and even the Estate of
the subjected "citizens." All Probate Judges will belong to the family
of man-stealers. Faneuil Hall will be shut, or open only for a "Union
Meeting," where the ruler calls together his menials to indorse some
new act of injustice,--only creatures of the Government, men like the
marshal's guard last June, allowed to speak words paid for by the
People's coward sweat and miserable blood. The blow which smites my
head will also cleave you asunder from crown to groin.
Your verdict is to vindicate Religion with Freedom of Speech, and
condemn the stealing of men; or else to confirm Kidnapping and condemn
Religion with Freedom of Speech. You are to choose whether you will
have such men as Wendell Phillips for your advisers, or such as
Benjamin F. Hallett and Benjamin R. Curtis for your masters, with the
marshal's guard, for their appropriate servants. Do you think I doubt
how you will choose?
Already a power of iniquity clutches at your children's throat; stabs
at their life--at their soul's life. I stand between the living tyrant
and his living victim; aye, betwixt him and expected victims not yet
born,--your children, not mine. I have none to writhe under the
successful lash which tyrants now so subtly braid therewith, one day,
to scourge the flesh of well-descended men. I am to stand the champion
of human Rights for generations yet unborn. It is a sad distinction!
Hard duties have before been laid on me,--none so obviously demanding
great powers as this. Whereto shall I look up for inspiring aid? Only
to Him who gave words to the slow tongue of Moses and touched with
fire Esaias' hesitating lips, and dawned into the soul of tent-makers
and fishermen with such great wakening light, as shining through them,
brought day to nations sitting in darkness, yet waiting for the
consolation. May such Truth and Justice enable me also, to speak a
testimony unto the Gentiles; He who chose the weak things, to bring to
nought the mighty, may not despise such humble services as mine.
* * * * *
Gentlemen of the Jury, my ministry deals chiefly with the Laws of God,
little with the statutes of men. My manhood has been mainly passed in
studying absolute, universal truth, teaching it to men, and applying
it to the various departments of life. I have little to do with courts
of law. Yet I am not now altogether a stranger to the circuit court
room of the United States, having been in it on five several occasions
before.
1. A Polish exile,--a man of famous family, ancient and patrician
before Christendom had laid eyes on America, once also of great
individual wealth, a man of high rank alike acquired and inherited,
once holding a high place at the court of the Czar,--became a fugitive
from Russian despotism, seeking an asylum here; he came to the circuit
court room to lecture on the Roman Law. I came to contribute my two
mites of money, and receive his wealth of learning.
2. The next time, I came at the summons of Thomas Sims. For a creature
of the slave-power had spontaneously seized that poor and friendless
boy and thrust him into a dungeon, hastening to make him a slave,--a
beast of burthen. He had been on his mock trial seven days, and had
never seen a Judge, only a commissioner, nor a Jury; no Court but a
solitary kidnapper. Some of his attendants had spoken of me as a
minister not heedless of the welfare and unalienable rights of a black
man fallen among a family of thieves. I went to the court house.
Outside it was belted with chains. In despotic Europe I had seen no
such spectacle, save once when the dull tyrant who oppressed Bavaria
with his licentious flesh, in 1844 put his capital in a brief state of
siege and chained the streets. The official servant of the kidnapper,
club in hand, a policeman of this city, goaded to his task by Mayor
Bigelow and Marshal Tukey,--men congenitally mingled in such
appropriate work,--bade me "Get under the chain." I pressed it down
and went over. The Judges of our own Supreme Court, _they went
under_,--had gone out and in, beneath the chain! How poetry mingles
with fact! The chain was a symbol, and until this day remaineth the
same chain, untaken away in the reading of the fugitive slave bill;
and when the law of Massachusetts is read, the chain is also upon the
neck of that court! Within the court house was full of armed men. I
found Mr. Sims in a private room, illegally, in defiance of
Massachusetts law, converted into a jail to hold men charged with no
crime. Ruffians mounted guard at the entrance, armed with swords,
fire-arms, and bludgeons. The door was locked and doubly barred
besides. Inside the watch was kept by a horrid looking fellow, without
a coat, a naked cutlass in his hand, and some twenty others, their
mouths nauseous with tobacco and reeking also with half-digested rum
paid for by the city. In such company, I gave what consolation
Religion could offer to the first man Boston ever kidnapped,--consolations
which took hold only of eternity, where the servant is free from his
master, for there the wicked cease from troubling. I could offer him
no comfort this side the grave.
3. I visited the United States court a third time. A poor young man
had been seized by the same talons which subsequently griped Sims in
their poison, deadly clutch. But that time, wickedness went off
hungry, defeated of its prey; "for the Lord delivered him out of their
hands," and Shadrach escaped from that Babylonish furnace, heated
seven times hotter than its wont: no smell of fire had passed on him.
But the rescue of Shadrach was telegraphed as "treason." The innocent
lightning flashed out the premeditated and legal lie,--"it is levying
war!" What offence it was in that Fourth One who walked with the
Hebrew children, "making their good confession," and sustained the old
Shadrach, Meshach, and Abednego, I know not. But the modern countrymen
of the African Shadrach, charged with some great crime, were haled
into this court to be punished for their humanity! I came to look on
these modern Angels of the Deliverance, to hear counsel of Mr. Dana,
then so wise and humane, and to listen to the masterly eloquence which
broke out from the great human heart of my friend, Mr. Hale, and
rolled like the Mississippi, in its width, its depth, its beauty, and
its continuous and unconquerable strength.
4. The fourth time, a poor man had been kidnapped, also at night, and
forced into the same illegal jail. He sat in the dock--an innocent
man, to be made into a beast. The metamorphosis had begun;--he was
already in chains and his human heart seemed dead in him; sixty
ruffians were about him, aiding in this drama, hired out of the
brothels and rum-shops for a few days, the lust of kidnapping serving
to vary the continual glut of those other and less brutal appetites of
unbridled flesh. While that "trial" lasted, whoredom had a Sabbath
day, and brawlers rested from their toil. Opposite sat the Boston
Judge of Probate, and the Boston District Attorney,--the Moses and
Elias of this inverted transfiguration; there sat the marshal, two
"gentlemen" from Virginia, claiming that a Boston man was their beast
of burthen, owing service and labor in Richmond; two "lawyers,"
"members of the Suffolk bar," pistols in their coats, came to support
the allegation and enforce the claim. Honorable men stood up to defend
him. There is one of them,--to defend me [Charles M. Ellis.] You know
very well the rest of that sad story,--the mock trial of Anthony Burns
lasted from May 25th till June 2d. I was here in all the acts of that
Tragedy. My own life was threatened; friend and foe gave me public or
anonymous warning. I sat between men who had newly sworn to kill me,
my garments touching theirs. The malaria of their rum and tobacco was
an offence in my face. I saw their weapons, and laughed as I looked
those drunken rowdies in their coward eye. They touch me!
5. The fifth time I came here at the summons of an officer of this
court,--very politely delivered, let me say it to his credit,--indicted
and arrested for a "misdemeanor." I gave bail and withdrew.
6. The sixth time,--Gentlemen,--it is the present, whereof I shall
erelong have much to say.
* * * * *
At the first visit I found only scholarly and philanthropic gentlemen,
coming out of sympathy with a Polish exile, a defeated soldier of
freedom, from his broken English to learn sound Roman Law. On each of
the other visits I have been in quite different company. I have
invariably met this Honorable Court, its kinsfolk and its most
intimate friends,--some member of the family of the distinguished
Judge, now fitly presiding over this trial.
1. It was Mr. George T. Curtis, the only brother of the honorable
Justice now on the bench,--born of the same mother and father,--who
had the glory of kidnapping Mr. Sims; it was he who seized Shadrach,
and gave such witness against one of the Angels of the Deliverance,
and then came back and enlarged his testimony; it was he who declared
the rescue an act of "treason;" he who hung the court house in chains,
and brought down the pliant neck of the Massachusetts Judges beneath
that symbolic line of linked fetters long drawn out. To what weak
forces will such necks bow when slavery commands!
2. It was the honorable Judge now on the distinguished bench who tried
men for the rescue of Shadrach. How he tried them is well known.
3. It was Edward G. Loring, another of this family so distinguished,
who kidnapped Mr. Burns and held him in irons; he whose broom swept up
together the marshal's guard; he who advised Mr. Burns's counsel to
make no defence,--"put no obstructions in the way of his going back,
as he probably will;" he who, in the darkness of midnight, sought to
sell his victim, before he had examined the evidence which might prove
him a free man; he who delivered him up as a slave, against evidence
as against law.
4. Another of the same family, William W. Greenough, brother-in-law of
Hon. Judge Curtis, was one of the grand-jury which found the
indictment against me, and "the most active of all in that work."
5. When I came here on the 29th of last November, the Hon. Judge
Curtis sat on the bench and determined the amount of my bail, and the
same eye which had frowned with such baleful aspect on the rescuers of
Shadrach, quailed down underneath my look and sought the ground.
* * * * *
In thus mentioning my former visits to the court, I but relate the
exploits of the Hon. Justice Curtis, of his kinsfolk and friends,
adding to their glory and their renown. Their chief title to
distinction rests on their devotion to the fugitive slave bill. It and
their honor are "one and inseparable." Once only humanity and good
letters brought me here, I met only scholars and philanthropists; on
five other occasions, when assaults on freedom compelled my
attendance, I have been confronted and surrounded with the loyalty of
the distinguished Judge and his kinsfolk and friends, valiantly and
disinterestedly obeying the fugitive slave bill "with alacrity;"
patriotically conquering their prejudices against man-stealing--if
such they ever had;--and earning for themselves an undying reputation
by "saving the Union" from Justice, Domestic Tranquillity, general
Welfare, and the Blessings of Liberty.
If I am to be arraigned for any act, I regard it as a special good
fortune that I am charged with such deeds, with seeking to arouse the
noblest emotions of Human Nature; and by means of the grandest Ideas
which Human History has brought to light. I could not have chosen
nobler deeds in a life now stretching over nearly half a hundred
years. I count it an honor to be tried for them. Nay, it adds to my
happiness to look at the Court which is to try me--for if I were to
search all Christendom through, nay, throughout all Heathendom, I know
of no tribunal fitter to try a man for such deeds as I have done. I am
fortunate in the charges brought; thrice fortunate in the judges and
the attorney,--the Court which is to decide;--its history and
character are already a judgment.
6. For my sixth visit, I was recognized to appear on the fifth of
March, 1855--the eighty-fifth anniversary of the Boston Massacre. I
might have been bound over to any other of the great days of American
history--22d of December, 19th of April, 17th of June, or the 4th of
July. But as I am the first American ever brought to trial for a
speech in Faneuil Hall against kidnapping; as I am the first to be
tried under the act of 1790 for "obstructing an officer" with an
argument, committing a "misdemeanor" by a word which appeals to the
natural justice of mankind, so there could not perhaps be a fitter
time chosen. For on the fifth of March, 1770, British despotism also
delivered its first shot into the American bosom. Not far from this
place the hand of George III. wounded to death five innocent citizens
of Boston,--one of them a negro. It was the first shot Britain ever
fired into the body of the American people, then colonial subjects of
the king-power. That day the fire was not returned,--only with ringing
of bells and tumult of the public, with words and resolutions. The
next day that American blood lay frozen in the street. Soon after the
British government passed a law exempting all who should aid an
officer in his tyranny from trial for murder in the place where they
should commit their crime. Mr. Toucey has humbly copied that precedent
of despotism. It was very proper that the new tyranny growing up here,
should select that anniversary to shoot down freedom of thought and
speech among the subjects of the slave-power. I welcomed the omen. The
Fifth of March is a red-letter day in the calendar of Boston. The
Court could hardly have chosen a better to punish a man for a thought
and a word, especially a Boston man, for such a word in Faneuil
Hall--a word against man-stealing. But I knew the case would never
come to trial on that day--of course it was put off.
Mr. Sims and Mr. Burns were accused of no crime but birth from a
mother whom some one had stolen. They had only a mock trial, without
due process of law, with no judge, no jury, no judicial officer. But
I, accused of a grave offence, am to enjoy a trial with due process of
law. It is an actual judge before me and another judge at his side,
both judicial officers known to the constitution. I know beforehand
the decision of the court--its history is my judgment. Justice
Curtis's Charge of last June, would make my daily talk a
"misdemeanor," my public preaching and my private prayers a "crime,"
nay, my very existence is constructively an "obstruction" to the
marshal. On that side my condemnation is already sure.
But there is another element. Gentlemen of the Jury, the judges and
attorney cannot lay their hand on me until you twelve men with one
voice say, "Yes! put him in jail." In the mock trial of Sims and Burns
it was necessary to convince only a single official of the United
States Court, a "ministerial" officer selected and appointed to do its
inferior business, a man who needed no conviction, no evidence but the
oath of a slave-hunter and the extorted "admission" of his victim, an
official who was to have ten dollars for making a slave, five only for
setting free a man! But you are a Massachusetts Jury, not of purchased
officials, but of honest men. I think you have some "prejudices" to
conquer in favor of justice. It has not appeared that you are to be
paid twice as much for sending me to jail, as for acquitting me of the
charge. I doubt that you have yet advised my counsel to make no
defence, "put no obstructions in the way" of my being sent to jail as
"he probably will."
Gentlemen, a United States Commissioner has his place on condition
that he performs such services as his masters "require." These United
States Judges have their seat in consequence of services rendered to
the ruling power of America, and for others of like sort yet to be
paid to the stealers of men. Other rewards shine before them alluring
to new service,--additional salary can pay additional alacrity. But
you, Gentlemen, are not office-holders nor seekers of office, not
hoping to gain money, or power, or honor, by any wickedness. You are
to represent the unsophisticated Conscience of the People,--not the
slave-power, but the power of Freedom.
It is to you I shall address my defence! MY defence? No, Gentlemen,
YOUR defence, the defence of your own Rights, inherent in your
national Institutions as Americans, ay, in your Nature as Men. It is a
singular good fortune that to you, as judges, I am pleading your own
cause. You have more interest at stake than I. For at death my name
will perish, while children and children's children, I trust, will
gently mingle your memories in that fair tide of human life which
never ends.
* * * * *
So much have I said by way of introduction, treating only of the
accidents pertaining to this case. I will now come to the Primary
Qualities and Substance thereof.
This is a Political Trial. In _form_, I am charged with violating a
certain statute never before applied to actions like mine; never meant
to apply to such actions; not legally capable of such application. But
in _fact_, my offence is very different from what the indictment
attempts to set forth. The judges know this; the attorney knows it,
and "never expected to procure a conviction." It is your cause, even
more than mine, that I plead. So it concerns you to understand the
whole matter thoroughly, that you may justly judge our common cause.
To make the whole case clear, I will _land_ it out into four great
parcels of matter, which your mind can command at once, and then come
to the details of each, ploughing it all over before your face, furrow
by furrow. I shall speak,
I. Of the State of Affairs in America which has led to this
prosecution,--the Encroachments of a Power hostile to Democratic
Institutions.
II. Of the Mode of Operation pursued by this Encroaching Power, in
other times and in our own,--of Systematic Corruption of the
Judiciary.
III. Of the great Safeguard which has been found serviceable in
protecting Democratic Institutions and the Rights of Man they are
designed to defend,--of the Trial by Jury.
IV. Of the Circumstances of this special case, UNITED STATES _versus_
THEODORE PARKER.
I shall speak of each in its order, and begin at the head.
I. OF THE STATE OF AFFAIRS IN AMERICA, WHICH HAS LED TO THIS
PROSECUTION--THE ENCROACHMENTS OF A POWER HOSTILE TO DEMOCRATIC
INSTITUTIONS.
In a republic where all emanates from the People, political
institutions must have a Basis of Idea in the Nation's Thought, before
they can acquire a Basis of Fact in the Force of the Nation. Now in
America there are two diverse Ideas recognized as principles of
Action--the Idea of Freedom and the Idea of Slavery. Allow me to read
my analysis and description of each.
The Idea of Freedom first got a national expression on the
Fourth of July, 1776. Here it is. I put it in a philosophic
form. There are five points to it.
First, All men are endowed by their Creator with certain
natural rights, amongst which is the right to life, liberty,
and the pursuit of happiness.
Second, These rights are unalienable; they can be alienated
only by the possessor thereof; the father cannot alienate
them for the son, nor the son for the father; nor the
husband for the wife, nor the wife for the husband; nor the
strong for the weak, nor the weak for the strong; nor the
few for the many, nor the many for the few; and so on.
Third, In respect to these, all men are equal; the rich man
has not more, and the poor less; the strong man has not
more, and the weak man less:--all are exactly equal in these
rights, however unequal in their powers.
Fourth, It is the function of government to secure these
natural, unalienable, and equal rights to every man.
Fifth, Government derives all its divine right from its
conformity with these ideas, all its human sanction from the
consent of the governed.
That is the Idea of Freedom. I used to call it "the American
Idea;" that was when I was younger than I am to-day. It is
derived from human nature; it rests on the immutable Laws of
God; it is part of the natural religion of mankind. It
demands a government after natural Justice, which is the
point common between the conscience of God and the
conscience of mankind; it is the point common also between
the interests of one man and of all men.
Now this government, just in its substance, in its form must
be democratic: that is to say, the government of all, by
all, and for all. You see what consequences must follow from
such an idea, and the attempt to reënact the Law of God into
political institutions. There will follow the freedom of the
people, respect for every natural right of all men, the
rights of their body and of their spirit--the rights of mind
and conscience, heart and soul. There must be some
restraint--as of children by their parents, as of bad men by
good men; but it will be restraint for the joint good of all
parties concerned; not restraint for the exclusive benefit
of the restrainer. The ultimate consequence of this will be
the material and spiritual welfare of all--riches, comfort,
noble manhood, all desirable things.
That is the Idea of Freedom. It appears in the Declaration
of Independence; it reappears in the Preamble to the
American Constitution, which aims "to establish Justice,
insure domestic tranquillity, provide for the common
defence, promote the general welfare, and secure the
blessings of Liberty." That is a religious idea; and when
men pray for the "Reign of Justice" and the "Kingdom of
Heaven" to come on earth politically, I suppose they mean
that there may be a Commonwealth where every man has his
natural rights of mind, body, and estate.
* * * * *
Next is the Idea of Slavery. Here it is. I put it also in a
philosophic form. There are three points which I make.
First, There are no natural, unalienable, and equal rights,
wherewith men are endowed by their Creator; no natural,
unalienable, and equal right to life, liberty, and the
pursuit of happiness.
Second, There is a great diversity of powers, and in virtue
thereof the strong man may rule and oppress, enslave and
ruin the weak, for his interest and against theirs.
Third, There is no natural law of God to forbid the strong
to oppress the weak, and enslave and ruin the weak.
That is the Idea of Slavery. It has never got a national
expression in America; it has never been laid down as a
Principle in any act of the American people, nor in any
single State, so far as I know. All profess the opposite;
but it is involved in the Measures of both State and Nation.
This Idea is founded in the selfishness of man; it is
atheistic.
The idea must lead to a corresponding government; that will
be unjust in its substance,--for it will depend not on
natural right, but on personal force; not on the
Constitution of the Universe, but on the compact of men. It
is the abnegation of God in the universe and of conscience
in man. Its form will be despotism,--the government of all,
by a part, for the sake of a part. It may be a single-headed
despotism, or a despotism of many heads; but whether a
Cyclops or a Hydra, it is alike "the abomination which
maketh desolate." Its ultimate consequence is plain to
foresee--poverty to a nation, misery, ruin.
* * * * *
These two Ideas are now fairly on foot. They are hostile;
they are both mutually invasive and destructive. They are in
exact opposition to each other, and the nation which
embodies these two is not a figure of equilibrium. As both
are active forces in the minds of men, and as each idea
tends to become a fact--a universal and exclusive fact,--as
men with these ideas organize into parties as a means to
make their idea into a fact,--it follows that there must not
only be strife amongst philosophical men about these
antagonistic Principles and Ideas, but a strife of practical
men about corresponding Facts and Measures. So the quarrel,
if not otherwise ended, will pass from words to what seems
more serious; and one will overcome the other.
So long as these two Ideas exist in the nation as two
political forces, there is no national unity of Idea, of
course no unity of action. For there is no centre of gravity
common to Freedom and Slavery. They will not compose an
equilibrious figure. You may cry "Peace! Peace!" but so long
as these two antagonistic Ideas remain, each seeking to
organize itself and get exclusive power, there is no peace;
there can be none.
The question before the nation to-day is, Which shall
prevail--the Idea and Fact of Freedom, or the Idea and the
Fact of Slavery; Freedom, exclusive and universal, or
Slavery, exclusive and universal? The question is not
merely, Shall the African be bond or free? but, Shall
America be a Democracy or a Despotism? For nothing is so
remorseless as an idea, and no logic is so strong as the
historical development of a national idea by millions of
men. A measure is nothing without its Principle. The Idea
which allows Slavery in South Carolina will establish it
also in New England. The bondage of a black man in
Alexandria imperils every white woman's daughter in Boston.
You cannot escape the consequences of a first Principle more
than you can "take the leap of Niagara and stop when
half-way down." The Principle which recognizes Slavery in
the Constitution of the United States would make all America
a Despotism, while the Principle which made John Quincy
Adams a free man would extirpate Slavery from Louisiana and
Texas. It is plain America cannot long hold these two
contradictions in the national consciousness. Equilibrium
must come.[4]
[Footnote 4: See this statement in Mr. Parker's Additional Speeches,
Addresses, and Occasional Sermons. Boston, 1855, vol. ii. p. 250, _et
seq._]
These two ideas are represented by two parties which aim at the
ultimate organization of their respective doctrines, the party
indicating the special tendency towards Democracy or Despotism. The
Party of Freedom is not yet well organized; that of Slavery is in
admirable order and discipline. These two parties are continually at
war attended with various success.
1. In the individual States of the North, since the Revolution, the
Party of Freedom has gained some great victories; it has abolished
Personal Slavery in every northern State, and on a deep-laid
foundation has built up Democratic Institutions with well proportioned
beauty. The Idea of Freedom, so genial to the Anglo-Saxon, so welcome
to all of Puritanic birth and breeding, has taken deep root in the
consciousness of the great mass of the People at the North. In the
severe simplicity of national deduction they will carry it to logical
conclusions not yet foreseen by human providence. The free States are
progressively democratic.
But in all the Northern States, and more especially in its
cities,--and here chiefly among the men of exclusive intellectual
culture and the votaries of commerce and its riches,--there are
exceptional men who embrace the Idea of Slavery and belong to its
Party. They know no law higher than the transient interest of their
politics or their commerce, their ease or ambition. They may not
theoretically hate the People, but they so love their own money, their
own ease or pleasure, that practically they oppose what promotes the
welfare of mankind, and seek their own personal advancement to the
injury of the human race. These are Northern men with Southern
"Principles." They have their Journals too well known in Boston to
need mention here.
2. In the individual States of the South, the Idea and Party of
Slavery has also gained great victories and been uniformly successful;
it has extended and strengthened personal slavery, which has now a
firmer hold in the minds of the controlling classes of Southern
men,--the rich and "educated,"--than in 1776, or ever before. The
Southern States are progressively despotic.
Still, in all the Southern States there are exceptional men, hostile
to slavery,--the intelligent and religious from conviction, others
from mere personal interest. These are Southern men with Northern
Principles. They are much oppressed at home--kept from political
advancement or social respectability, as much as democrats would be at
Rome or Naples,--have no journals and little influence.
3. In the Federal Government, the warfare goes on, each party seeking
for mastery over the whole United States--the contest is carried on in
Congress, in all the local legislatures; newspapers, speeches, even
sermons, resound with the din of battle. See what forces contend and
with what results.
The nation lives by its productive industry, whereof there are these
five chief departments:--Hunting and Fishing, the appropriation of the
spontaneous live products of the land and sea; Agriculture, the use of
the productive forces of the earth's surface; Mining, the
appropriation of the metallic products of her bosom; Manufactures, the
application of toil and thought to the products of Hunting and
Fishing, Mining and Agriculture; Commerce, the exchange of value,
distribution of the products of these four departments of industry,
directly productive.
Hunting and Fishing, Mining, Manufactures, Commerce, are mainly in the
hands of Northern men--the South is almost wholly Agricultural. Her
wealth consists of land and slaves. In 1850 the fifteen slave States
had not fourteen hundred millions of other property. In the South
property, with its consequent influence, is in few hands--in the North
it is wide spread.
Now the few controlling men of the South, the holders of land and
slaves, have Unity of pecuniary Interest--the support of Slavery as a
local measure,--for it is the source of their material wealth, and
also a consequent Unity of political Idea, the support of Slavery as a
universal Principle, for it is the source likewise of their political
power. Accordingly the South presents against the North an even and
well-disciplined front of veteran soldiers, is always hostile to
Freedom, and as her "best educated" men devote much time to politics,
making it the profession of their whole lives, it is plain they become
formidable antagonists.
But the North has a great variety of conflicting interests, a great
amount of intellectual activity, where education and its consequent
habits of reading and thinking are so wide spread, and therefore a
great variety of opinion. Accordingly there is not the same Unity of
pecuniary Interest and of political Idea, which distinguishes the
South. Besides, in the North the ablest and best educated men do not
devote their time to the thankless and stormy calling of politics;
Virginia cares for nothing but Negroes and Politics, her loins and her
brains gender but this twofold product: Massachusetts and New York
care for much beside. So the North does not present against the South
an even and well-disciplined front of veteran soldiers, but a ragged,
discordant line of raw recruits, enlisting for a short time with some
special or even personal local interest to serve.
What makes the matter yet worse for us, Gentlemen of the Jury, is
this: While the great mass of the people at the North, engrossed in
direct productive industry, are really hostile to slavery, those
absorbed in the large operations of commerce, taken as a whole class,
feel little interest in the Idea of Freedom; nay, they are positively
opposed to it. Before the African Slave-trade was treated like other
kindred forms of piracy, as a capital crime, they had their ships in
that felonious traffic; and now their vessels engage in the American
Slave-trade and their hand still deals in the bodies of their fellow
men. In all the great commercial cities, like Philadelphia, New York
and Boston these men prevail, and are the "eminent citizens,"
overslaughing the press, the pulpit, the bar, and the court, with the
Ideas of their lower law, and sweeping along all metropolitan and
suburban fashion and respectability in their slimy flood. Hence the
great cities of the North, governed by the low maxims of this class,
have become the asylum of Northern men with Southern "Principles," and
so the strong-hold of Slavery. And hitherto these great cities have
controlled the politics of the Northern States, crowding the Apostles
of Freedom out from the national board, and helping the party of
slavery to triumph in all great battles.
Thus aided, for many years the South has always elected her candidate
for the Presidency by the vote of the people. But the American
Executive is twofold,--part Presidential, part Senatorial. Sometimes
these two Executives are concordant, sometimes discordant. The
Senatorial Executive has always carried the day against the less
permanent Presidential power, except in the solitary case where
General Jackson's unconquerable will and matchless popularity enabled
him to master the senate itself, who "registered" his decrees, or
"expunged" their own censure, just as the iron ruler gave orders.
Now by means of the control which the Northern Cities have over the
Northern States, and such Commercial Men over those cities, it has
come to pass that not only the Presidential, but also the Senatorial
Executive, has long been hostile to the Idea of Freedom.
Gentlemen of the Jury, the direct consequence is obvious,--the Party
of Slavery has long been the conqueror in the field of Federal
politics. In the numerous and great conflicts between the two, Freedom
has prevailed against Slavery only twice since the close of the
Revolutionary War,--in prohibiting involuntary servitude in the
North-west Territory in 1787, and in the abolition of the African
Slave-trade in 1808. Her last triumph was forty-seven years ago,--nay,
even that victory was really achieved twenty years before at the
adoption of the constitution. In this warfare we have not gained a
battle for freedom since 1788!
For a time it seemed doubtful which would triumph, though Slavery
gained Kentucky and Tennessee, and Louisiana was purchased as slave
soil in 1803. But in 1820 slavery became the obvious and acknowledged
master in the Federal Territory, marched victorious over the
Mississippi, planted itself in Missouri, and has subsequently taken
possession of Mississippi, Alabama and Arkansas, all slave States; has
purchased Florida; "reannexed" Texas; conquered Utah, New Mexico and
California, all slave soil; and from Freedom and the North has just
now reconquered Kansas and Nebraska. Ever since the Missouri
Compromise in 1820 Slavery has been really the master, obviously so
since the annexation of Texas in 1845. The slave-power appoints all
the great national officers, executive, diplomatic, judicial, naval
and military,--it controls the legislative departments. Look at this
Honorable Court, Gentlemen, and recognize its power!
The idea of Slavery must be carried out to its logical consequence, so
our masters now meditate two series of Measures, both necessary to the
development of Slavery as a Principle.
(I.) African Slavery is to be declared a Federal Institution, national
and sectional, and so extended into all the Territories of the United
States. New soil is to be bought or plundered from Hayti, Spain,
Mexico, South America "and the rest of mankind," that slavery may be
planted there; that is the purpose of all the Official Fillibustering
of the Government, and the Extra-official Fillibustering which it
starts, or allows; Quitman "Enterprises," Kinney "Expeditions," Black
Warrior and El Dorado "difficulties," all point to this; the "Ostend
Conference" is a step in that direction; Slavery is to be restored to
the so called "Free States," reëstablished in all the North. That is
the design of the fugitive slave bill in 1850, and the kidnapping of
northern men consequent thereon for the last five years; of President
Pierce's inaugural declarations in behalf of slavery in 1853; of Mr.
Toombs's threat in 1854, that "soon the master with his slaves will
sit down at the foot of Bunker Hill Monument;" of Mr. Toucey's Bill in
1855, providing that when a kidnapper violates the local laws of any
State, he shall be tried by the fugitive slave bill court. Then the
African Slave-trade is to be restored by federal enactments, or
judicial decisions of the "Supreme Court of the United States." All
these steps belong to Measure number One. The Supreme Court is ready
to execute the commands of its lord. Soon you will see more
"decisions" adverse to humanity.
(II.) The next movement is progressively to weaken and ultimately to
destroy the Democratic Institutions of the North,--yes, also of the
South. This design is indicated and sustained by some of the measures
already mentioned as connected with the first purpose.
To this point tend the words of President Pierce addressed to the
soldiers of 1812 on the 8th of January 1855, in which he speaks of
such as "disseminate political heresies," that is, the Idea of
Freedom; "revile the government,"--expose its hostility against the
unalienable Rights of man; "deride our institutions,"--to wit, the
patriarchal institution of Slavery; "sow political dissensions,"--advise
men not to vote for corrupt tools of the government; "set at defiance
the laws of the land,"--meaning the fugitive slave bill which commands
kidnapping.
There belong the attempts of the Federal courts to enlarge their
jurisdiction at the expense of State Rights; the cry, "Union first and
Liberty afterwards;" the shout "No higher law," "Religion nothing to
do with Politics."
Thence come the attacks made on the freedom of the pulpit, of the
press, and all freedom of speech. The Individual State which preserves
freedom must be put down,--the individual person who protests against
it must be silenced. No man must hold a federal office,--executive,
diplomatic, judicial, or "ministerial,"--unless he has so far
conquered his "prejudices" in favor of the natural Rights of man that
he is ready to enslave a brother with alacrity. All these steps belong
to Measure number Two.
This latter Measure advances to its execution, realizing the Idea of
Slavery, with subtle steps, yet creeps on rapid-moving feet. See how
it has gained ground latterly. Obviously the fugitive slave bill
struck only at the natural Rights of Colored men--as valuable as those
of white men, but the colored are few and the white many,--the
experiment must be made on the feebler body. But this despotism cannot
enslave a black girl without thereby putting in peril the liberty of
every white man. At first our masters only asked of Boston a little
piece of chain, but just long enough to shackle the virtuous hands of
Ellen Craft, a wife and mother, whom her Georgian "owner" wished to
sell as a harlot at New Orleans! A meeting was summoned at Faneuil
Hall, and Boston answered, "Yes, here is the chain. Let the
woman-hunter capture Ellen Craft, make her a Prostitute at New
Orleans. She is a virtuous wife and mother,--but no matter. Slavery is
king and commands it. Let the 'owner' have his chain."
There is no escaping the consequence of a first Principle. Soon that
little chain lengthened itself out, and coiled itself all round the
court house, and how greedily your judges stooped to go under! This
Anaconda of the Dismal Swamp wound its constricting twists about the
neck of all your courts, and the Judges turned black in the face, and
when questioned of law, they could not pronounce "Habeas Corpus,"
"Trial by Jury," nor utter a syllable for the Bible or the
Massachusetts Constitution, but only wheeze and gurgle and squeak and
gibber out their defences of Slavery! No, Boston could not bewray a
woman wandering towards freedom, without chaining the court house and
its judges, putting the town in a state of siege,--insolent soldiers
striking at the people's neck. Now the attempt is making by this
Honorable Court to put the same chain round Faneuil Hall, so that the
old Cradle of Liberty shall no more rock to manhood the noble sons of
freedom, but only serve as a nest that the spawn of Bondage may
hibernate therein.
I am on trial because I hate Slavery, because I love freedom for the
black man, for the white man, and for all the human Race. I am not
arraigned because I have violated the statute on which the indictment
is framed--no child could think it--but because I am an advocate of
Freedom, because my Word, my Thoughts, my Feelings, my Actions, nay,
all my Life, my very Existence itself, are a protest against Slavery.
Despotism cannot happily advance unless I am silenced. It is very
clear logic which indicts me. Private personal malice, deep, long
cherished, rancorous, has doubtless jagged and notched and poisoned
too the public sword which smites at my neck. Still it is the public
sword of Slavery which is wielded against me. Against ME? Against YOU
quite as much--against your children. For as Boston could not venture
to kidnap a negro woman, without bringing down that avalanche of
consequences connected with the Principle of Slavery,--without chains
on her Judges, falsehood in her officers, blood in her courts, and
drunken soldiers in her streets, and hypocrisy in her man-hunting
ministers,--no more can she put me to silence alone. The thread which
is to sew my lips together, will make your mouths but a silent and
ugly seam in your faces. Slavery is Plaintiff in this case; Freedom
Defendant. Before you as Judges, I plead your own cause--for you as
defendant. I will not insult you by the belief or the fear that you
can do other than right, in a matter where the law is so plain, and
the Justice clear as noonday light. But should you decide as the
wicked wish, as the court longs to instruct you, you doom your mouths
to silence; you bow your manly faces to the ground, destine your
memories to shame, and your children to bondage worse than negro
slavery.
* * * * *
Such, Gentlemen of the Jury, is the state of affairs leading to this
Prosecution--such the past, present, and prospective Encroachments of
a Power hostile to Democratic Institutions and the unalienable Rights
they were designed to protect. Such also are the two Measures now in
contemplation,--the Extension of African Bondage, and the Destruction
of American Freedom.
II. LOOK NEXT AT THE MODE OF OPERATION HITHERTO PURSUED BY THIS
ENCROACHING POWER, IN OTHER TIMES AND NATIONS, AND IN OUR OWN,
SYSTEMATIC CORRUPTION OF THE JUDICIARY.
Here I shall show the process by which that Principle of Slavery
becomes a Measure of political ruin to the People.
In substance Despotism is always the same, Spanish or Carolinian, but
the form varies to suit the ethnologic nature and historical customs
of different people. I shall mention two forms--one to illustrate, the
other to warn.
(I.) The open Assumption of Power by military violence. This method is
followed in countries where love of Individual Liberty is not much
developed in the consciousness of the people, and where democratic
institutions are not fixed facts in their history; where the nation is
not accustomed to local self-government, but wonted to a strong
central power directed by a single will. This form prevails in Russia,
Turkey, and among all the Romanic tribes in Europe, and their
descendants in America. Military usurpation, military rule is
indigenous in France,--where two Napoleons succeed thereby,--in Italy,
in Spain, and most eminently in Spanish America. But no people of the
Teutonic family for any length of time ever tolerated a usurping
soldier at the head of affairs, or submitted to martial arbitrary
rule, or military violence in the chief magistrate. It is against our
habit and disposition.
Neither Cromwell nor William of Orange could do with the Anglo-Saxon
what it would have been impossible not to do with Spaniards or
Italians. Even warlike Swiss--Teutonic tribes--will have a government
with due process of law, not by the abrupt violence of the soldier.
Washington could not have established a military monarchy in America
had he been so wickedly disposed. Even William the Conqueror must rule
the Saxons by Saxon law.
(II.) The corruption of the acknowledged safeguards of public
security. This is attempted in nations who have a well-known love of
individual liberty, and institutional defences thereof, the habit of
Local Self-government by Democratic Law-making and Law-administering.
For example, this experiment has been repeatedly made in England. The
monarch seeking to destroy the liberty of the people, accomplishes
his violent measure by the forms of peaceful law, by getting the
judicial class of men on the side of despotism. Then all the
wickedness can be done in the name, with the forms, and by "due
process" of law, by regular officers thereof--done solemnly with the
assistance of slow and public deliberation.
Gentlemen of the Jury, this is a matter of such importance to the
People of America just now, that I must beg you to bear with me while
I explain this subtle operation. I will select examples from the
history of England which are easy to understand, because her blood is
kindred to our own, and the institutions of the two countries are
related as parent and child. And besides, her past history affords
alike warning and guidance in our present peril.
* * * * *
(I.) The first step in this process of political iniquity is, to
appoint men for judges and other officers of the court, who know no
law higher than the selfish will of the hand that feeds them, mere
creatures of the rest [Transcriber's Note: for 'rest' read
'government'; see Errata].
I will select instances of this from the reign of the Stuart kings and
one of their successors, from a period full of melancholy warning to
America.
I will begin with James I. (1603-1625), the first King of New England.
At his very accession he had high notions of his royal Prerogative,
and maintained that all the privileges of the House of Commons were
derived from his royal grant. "I am your King," said he, "I am placed
to govern you, and I shall [must] answer for your errors." It was
quite enough to answer for his own,--poor man. "Let me make the
Judges," said he, "and I care not who makes the laws."
Accordingly for judicial officers he appointed such men as would
execute his unlawful schemes for the destruction of public liberty. To
such considerations was Francis Bacon mainly indebted for his
elevation from one legal rank to another, until he reached the seat of
the Lord Chancellor. A man whom Villers declared, "of excellent parts,
but withal of a base and ungrateful temper, and an arrant knave, yet a
fit instrument for the purposes of the government." He did not receive
his appointment for that vast, hard-working genius which makes his
name the ornament of many an age, but only for his sycophantic
devotion to the royal will. Sir Edward Coke was promoted rapidly
enough, whilst wholly subservient to the despotic court, but
afterwards, though a miracle of legal knowledge, not equalled yet
perhaps, he must not be appointed Lord Chancellor on account of "his
occasional fits of independence." Chief Justice Ley was one of the
right stamp, but it was thought "his subserviency might prove more
valuable by retaining him to preside over the Court of King's Bench."
"For in making the highest judicial appointments the only question
was, what would suit the arbitrary schemes of governing the
country."[5] Hobart had resisted some illegal monopolies of the
all-powerful Buckingham, and he was "unfit for promotion."
[Footnote 5: 2 Campbell, 372, 374.]
James thought the Prerogative would be strengthened by the appointment
of clergymen of the national church, perhaps the only class of men not
then getting fired with love of liberty,--and made Williams, Bishop of
Lincoln, Lord Keeper, a "man of rash and insolent, though servile
temper, and of selfish, temporizing, and trimming political conduct,"
who at that time had never acted as "a judge except at the Waldegrave
Petty Sessions in making an order of bastardy or allowing a rate for
the Parish poor," and was "as ignorant of the questions coming before
him as the door-keepers of his court." But he was subservient, and had
pleased the King by preaching the courtly doctrine that "subjects hold
their liberties and their property at the will of the Sovereign whom
they are bound in every extremity passively to obey."[6] Men like
Fleming and other creatures of the throne, sanctioning the King's
abundant claim to absolute power, were sure of judicial distinction;
while it was only the force of public opinion which gave the humblest
place of honor to such able and well-studied lawyers as would respect
the constitutional Rights of the People and the just construction of
the laws, and at all hazards maintain their judicial independence.
Ecclesiastics who taught that the King "is above the laws by his
absolute power," and "may quash any law passed by Parliament," were
sure of rapid preferment. Thus Bancroft was promoted; thus Abbot was
pushed aside; and for his mean, tyrannical and subservient disposition
Rev. William Laud was continually promoted in expectation of the
services which, as Archbishop, he subsequently performed in the
overthrow of the Liberty of the People. But time would fail me to read
over the long dark list of men whose personal shame secured them
"official glory."
[Footnote 6: 2 Campbell, 368, 374; 3 Howell State Trials, 824.]
In his address to the Judges in the Star-Chamber in 1616 James gave
them this charge, "If there falls out a question which concerns any
Prerogative or mysterie of State, _deale not with it till you consult
with the King_ or his Council, or both; for they are Transcendent
Matters, and must not be slibberly carried with over rash
wilfullnesse." "And this I commend unto your special care, as some of
you of late have done very much, to _blunt the edge and vaine popular
humor of some lawyers at the Barre_, that think they are not eloquent
and bold-spirited enough, except they _meddle with the King's
Prerogative_." "_That which concerns the mysterie of the King's Power
is not lawful to be disputed._"[7] Gentlemen, that was worthy of some
judicial charges which you and I have heard.
[Footnote 7: Speache in the Starre-Chamber, London, 1616.]
* * * * *
Charles I. (1625-1659,) pursued the same course of tyranny by the same
steps. Coventry could be implicitly relied on to do as commanded, and
was made Lord Keeper in 1625. When the question of Ship-money was to
be brought forward in 1636, Chief Justice Heath was thought not fit to
be trusted with wielding the instrument of tyranny, and accordingly
removed; "and Finch, well known to be ready to go all lengths, was
appointed in his place." For he had steadfastly maintained that the
King was absolute, and could dispense with law and parliament,--a fit
person to be a Chief Justice, or a Lord Chancellor, in a tyrant's
court, ready to enact iniquity into law. His compliance with the
King's desire to violate the first principle of Magna Charta,
"endeared him to the Court, and secured him further preferment as soon
as any opportunity should occur." So he was soon made Lord Chancellor
and raised to the peerage. Littleton had once been on the popular
side, but deserted and went over to the Court--he was sure of
preferment; and as he became more and more ready to destroy the
liberties of the People, he was made Chief Justice, and finally Lord
Chancellor in 1641. Lane was a "steady friend of the prerogative," and
so was made Attorney-General to the Prince of Wales, and thence
gradually elevated to the highest station.
Other Judicial appointments were continually made in the same spirit.
Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the
government questioned him to ascertain if he were "sound," and were
shocked to hear him declare that the King had no right to levy taxes
without consent of Parliament, or imprison his subjects without due
process of law. He was "immediately dismissed from his office,"
(1626,) and Sir Nicolas Hyde appointed in his place. By such means the
courts were filled with tools of the King or his favorites, and the
pit digged for the liberties of the People, into which at last there
fell--the head of the King!
* * * * *
Charles II. and James II., (1655-1686,) did not mend the evil, but
appointed for judges "such a pack as had never before sat in
Westminster Hall." Shaftesbury and Guildford had the highest judicial
honors. Lord Chancellor Finch, mentioned already, had been accused by
the Commons of High Treason and other misdemeanors, but escaped to the
continent, and returned after the Restoration. He was appointed one of
the Judges to try the Regicides. Thus he "who had been accused of high
treason twenty years before by a full parliament, and who by flying
from their justice saved his life, was appointed to judge some of
those who should have been his Judges."[8] He declared in Parliament
that Milton, for services rendered to the cause of liberty while Latin
Secretary to Cromwell, "deserved hanging."[9]
[Footnote 8: Ludlow, quoted in 2 Campbell, 470.]
[Footnote 9: 4 Parl. Hist. 162.]
In these reigns such men as Saunders, Wright, and Scroggs, were made
Judges, men of the vilest character, with the meanest appetites,
licentious, brutal, greedy of power and money, idiotic in the moral
sense, appointed solely that they might serve as tools for the
oppression of the People. Among these infamous men was George
Jeffreys, of whom Lord Campbell says,--"He has been so much abused
that I began my critical examination of his history in the hope and
belief that I should find that his misdeeds had been exaggerated, and
that I might be able to rescue his memory from some portion of the
obloquy under which it labors; but I am sorry to say that in my
matured opinion his cruelty and his political profligacy have not been
sufficiently exposed or reprobated; and that he was not redeemed from
his vices by one single solid virtue."[10] But in consequence of his
having such a character, though not well-grounded in law, he was made
a Judge, a Peer, and a Lord Chancellor! Wright, nearly as infamous,
miraculously stupid and ignorant, "a detected swindler, knighted and
clothed in ermine, took his place among the twelve judges of
England."[11] He also was made Chief Justice successively of the
Common Pleas and the King's Bench! Lord Campbell, himself a judge, at
the end of his history of the reign of Charles and James, complains of
"the irksome task of relating the actions of so many men devoid of
political principle and ready to suggest or to support any measures,
however arbitrary or mischievous, for the purpose of procuring their
own advancement."[12] It was the practice of the Stuarts "to dismiss
judges without seeking any other pretence, who showed any disposition
to thwart government in political prosecutions."[13] Nor was this
dismissal confined to cases where the judge would obey the law in
merely Political trials. In 1686 four of the judges denied that the
king had power to dispense with the laws of the land and change the
form of religion: the next morning they were all driven from their
posts, and four others, more compliant, were appointed and the
judicial "opinion was unanimous." Hereupon Roger Coke says well,--"the
king ... will make the judges in Westminster Hall to murder the common
law, as well as the king and his brother desired to murder the
parliament by itself; and to this end the king, when he would make any
judges would make a bargain with them, that they should declare the
king's power of dispensing with the penal laws and tests made against
recusants, out of parliament."[14]
[Footnote 10: 3 Campbell, 394.]
[Footnote 11: 2 Campbell Chief Justices, 86.]
[Footnote 12: 3 Campbell, 473.]
[Footnote 13: 3 Hallam, 142.]
[Footnote 14: 8 St. Tr. 195, note.]
* * * * *
Here, Gentlemen of the Jury, I must mention three obscure judges who
received their appointments under Stuart kings. Before long I shall
speak of their law and its application, and now only introduce them to
you as a measure preliminary to a more intimate acquaintance
hereafter.
1. The first is Sir William Jones, by far the least ignoble of the
three. He was descended from one of the Barons who wrung the Great
Charter from the hands of King John in 1618 [Transcriber's Note: for
'1618' read '1215'; see Errata], and in 1628 dwelt in the same house
which sheltered the more venerable head of his Welsh ancestor. In 1628
he was made judge by Charles I. He broke down the laws of the realm to
enable the king to make forced loans on his subjects, and by his
special mandate (Lettre de Cachet) to imprison whom he would, as long
as it pleased him, and without showing any reason for the commitment
or the detention! Yes, he supported the king in his attempt to shut up
members of parliament for words spoken in debate in the house of
commons itself; to levy duties on imports, and a tax of ship-money on
the land. He was summoned before parliament for his offences against
public justice, and finally deprived of office, though ungratefully,
by the king himself.[15]
[Footnote 15: Account of him in Preface to his Reports, (1675); 3 St.
Tr. 162, 293, 844, 1181; 2 Parl. Hist. 869; 1 Rushworth, 661, _et
al._; Whitlocke, 14, _et al._]
2. Thomas Twysden was counsel for George Coney in 1655, a London
merchant who refused to pay an illegal tax levied on him by
Cromwell--who followed in the tyrannical footsteps of the king he
slew. Twysden was thrown into the Tower for defending his client--as
Mr. Sloane, at Sandusky, has just been punished by the honorable court
of the United States for a similar offence,--but after a few days made
a confession of his "error," defending the just laws of the land,
promised to offend no more, and was set at liberty, ignominiously
leaving his client to defend himself and be defeated. This Twysden was
made judge by Charles II. The reporters recording his decisions put
down "_Twysden in furore_," thinly veiling the judicial wrath in
modest Latin. He was specially cruel against Quakers and other
dissenters, treating George Fox, Margarett Fell, and John Bunyan with
brutal violence.[16]
[Footnote 16: 6 St. Tr. 634; 1 Campbell Justices, 442.]
3. Sir John Kelyng is another obscure judge of those times. In the
civil war he was a violent cavalier, and "however fit he might be to
_charge_ the Roundheads under Prince Rupert, he was very unfit to
_charge_ a jury in Westminster Hall." In 1660 he took part in the
trial of the Regicides and led in the prosecution of Colonel Hacker,
who in 1649 had charge of the execution of Charles I. In 1662 he took
part in the prosecution of Sir Henry Vane, and by his cruel subtlety
in constructing law, that former governor of Massachusetts,--one of
the most illustrious minds of England, innocent of every crime, was
convicted of high treason and put to death.[17] For this service, in
1663 Kelyng was made a judge; and then, by loyal zeal and judicial
subserviency, he made up "for his want of learning and sound sense."
But he was so incompetent that even the court of Charles II. hesitated
to make him more than a puny judge. But he had been a "valiant
cavalier," and had done good service already in making way with such
as the king hated, and so after the death of Sir Nicolas Hyde, he was
made Lord Chief Justice in his place. "In this office," says Judge
Campbell, he "exceeded public expectation by the violent, fantastical,
and ludicrous manner in which he conducted himself."[18] But I will
not now anticipate what I have to say of him in a subsequent part of
this defence.
[Footnote 17: 6 St. Tr. 161.]
[Footnote 18: 1 Campbell Justices, 401.]
Gentlemen of the Jury, we shall meet these three together again before
long, and I shall also speak of them "singly or in pairs." In the mean
time I will mention one similar appointment in the reign of George the
III.--the last king of New England.
* * * * *
In 1770 Sergeant Glynn, in Parliament, moved for an inquiry into the
administration of criminal justice. Edmund Thurlow, a rough venal man,
then recently appointed solicitor-general, proposed that a severe
censure should be passed on him for the motion. Thurlow wanted the
trial by jury abolished in all cases of libel, so that the liberty of
the people should be in the exclusive care of government attorneys and
judges appointed by the crown. Hear him speak on the 6th of December,
1770.
"In my opinion no man should be allowed with impunity to
make a wanton attack upon such venerable characters as the
judges of the land. We award costs and damages to the
aggrieved party in the most trifling actions. By what
analogy, then, can we refuse the same justice in the most
important cases, to the most important personages? If we
allow every pitiful patriot thus to insult us with
ridiculous accusations, without making him pay forfeit for
his temerity, we shall be eternally pestered with the
humming and buzzing of these stingless wasps. Though they
cannot wound or poison, they will tease and vex. They will
divert our attention from the important affairs of State to
their own mean antipathies, and passions, and prejudices.
Did they not count upon the spirit of the times and imagine
that the same latitude which is taken by the libellers is
here allowable, they would not have dared to offer so gross
an outrage. I hope we shall now handle them so roughly as to
make this the last of such audacious attempts. They are
already ridiculous and contemptible. To crown their
disgrace, let us inflict some exemplary punishment. Else
none of us is safe. Virtue and honor, you see from this
instance, are no safeguard from their attacks."
"The nature, the direct effect, and the remote consequences
of a State libel, are so complicated and involved with
various considerations of great pith and moment, that few
juries can be adequate judges. So many circumstances are at
once to be kept in view, so many ponderous interests are to
be weighed, so many comparisons to be made, and so many
judgments formed, that the mind of an ordinary man is
distracted and confounded, and rendered incapable of coming
to any regular conclusion. None but a judge, a man that has
from his infancy been accustomed to decide intricate cases,
is equal to such a difficult task. If we even suppose the
jury sufficiently enlightened to unravel those knotty
points, yet there remains an insuperable objection. In State
libels, their passions are frequently so much engaged, that
they may be justly considered as parties concerned against
the crown."
"In order, therefore, to preserve the balance of our
constitution, _let us leave to the judges_, as the most
indifferent persons, _the right of determining the malice or
innocence of the intention_."
"It is not that I think the intention a matter of fact; no,
in the sense put upon it by the judges, it is a matter of
law."
"Much dust has been raised about civil and criminal actions.
But to what purpose? Is not reparation to be made to the
public for any injury which it may have sustained, as much
as to an individual? Is the welfare of the nation in
general, of less consequence than that of a single person?
Where then is the propriety of making such a bustle about
the malice or innocence of the intention? The injury done is
the only proper measure of the punishment to be inflicted,
as well as of the damage to be assessed. Since you cannot
plead the intention as a mitigation in the latter case,
neither can you in the former."[19]
[Footnote 19: 16 Parl. Hist. 1291, 1292, 1293.]
What followed? On the 23d of July, 1771, he was made Attorney-General.
His subsequent history did not disappoint the prophecy uttered above
by his former conduct and his notorious character. "In truth his
success was certain, with the respectable share he possessed of real
talents and of valuable requirements--strongly marked features,
piercing eyes, bushy eyebrows, and a sonorous voice, all worked to the
best effect by an immeasurable share of self-confidence--he could not
fail."[20] He hated America with the intense malignity of a low but
strong and despotic nature, and "took a most zealous part and uttered
very violent language against the colonists. He scorned the very
notion of concession or conciliation; he considered 'sedition' and
'treason,' (like _tobacco_ and _potatoes_,) the peculiar plants of the
American soil. The natives of these regions he thought were born to be
taxed."[21] He favored the Stamp Act, the Coercion Bill,--quartering
soldiers upon us, sending Americans beyond seas for trial,--the Boston
Port Bill, and all the measures against the colonies. "To say that we
have a right to tax America and never exercise that right, is
ridiculous, and a man must abuse his understanding very much not to
allow of that right;" "the right of taxing was never in the least
given up to the Americans."[22] On another occasion he said, that "as
attorney-general he had a right to set aside every charter in
America."[23] What followed? Notwithstanding his youthful profligacy,
the open profanity of his public and private speech, and his living in
public and notorious contempt of matrimony,--he was made Lord
Chancellor and elevated to the peerage in 1778! Him also we shall meet
again.
[Footnote 20: 5 Campbell, 398.]
[Footnote 21: 5 Campbell, 410.]
[Footnote 22: 17 Parl. Hist. 1313.]
[Footnote 23: 18 St. Tr. 999.]
Gentlemen of the Jury, I might as well try to bale all the salt water
out of the sea as to mention every glaring and notorious instance
where an oppressive government has appointed some discarder of all
Higher Law for its servant in crushing the People. Come therefore to
the next point.
* * * * *
(II.) The next step is by means of _such Judges to punish and destroy
or silence men who oppose the wickedness of the party in power, and
the encroachments of despotism_. Let me describe the general mode of
procedure, and then illustrate it by special examples.
1. In the Privy Council, or elsewhere, it is resolved to punish the
obnoxious men,--and the business is intrusted to the law-officers of
the crown, appointed for such functions.
2. They consult and agree to pervert and twist the law--statute or
common--for that purpose. By this means they gratify their master, and
prepare future advancement for themselves.
3. The precedent thus established becomes the basis for new operations
in the future, and may be twisted and perverted to serve other cases
as they occur.
Now, Gentlemen, look at some examples taken from British history, in
times of the same Kings mentioned before.
1. In 1610 two Puritans for refusing the _ex officio_ oath, were
clapped in Jail by the commissioners. They were brought on _habeas
corpus_ before a court, and Mr. Fuller, their counsel, a learned
lawyer, insisted that they were imprisoned without due process of law.
For this "contempt of court" he was thrown into jail by Archbishop
Bancroft, whence he was rescued only by death.[24]
[Footnote 24: Peirce's Vindication, (1717,) 174.]
2. In 1613 there were many murmurs among the People of England at the
tyranny of James. Fine and imprisonment did not quell the disturbance;
so a more dreadful example was thought needful. The officials of
Government broke into the study of Rev. Edmund Peacham, a Protestant
minister, sixty or seventy years old. In an uncovered cask they found
a manuscript sermon, never preached, nor designed for the pulpit or
the press, never shown to any one. It contained some passages which
might excite men to resist tyranny. He was arrested, and thrown into
Jail, all his papers seized. The Government resolved to prosecute him
for high treason. Francis Bacon, the powerful and corrupt
Attorney-General, managed the prosecution. Before trial was ventured
upon, he procured an extrajudicial opinion of the Judges appointed for
such services,--irregularly given, out of court, that they would
declare such an act high treason.
But a manuscript sermon, neither preached nor designed for the public,
was hardly evidence enough of treason even for such Judges--so
purchased, for such an Attorney--so greedy of preferment, with such a
Cabinet and such a King. For all those, like the Pharisees of old,
"feared the People." So their victim was tortured on the rack, and
twelve leading questions prepared by the Government officials, were
put to him there. I quote Secretary Winwood's record--still extant in
his own handwriting--"He was this day examined before torture, in
torture, between torture, and after torture; notwithstanding nothing
could be drawn from him, he still persisting in his obstinate and
insensible denials and former answers." Bacon was present at the
torture, which took place in the Tower, Jan. 19, 1614, O.S. (30th Jan.
1615, N.S.). In August he was tried for high treason--"compassing and
imagining the King's death"--before a packed jury; against law, and
without legal evidence. He was of course found guilty under the ruling
of the Court! But public opinion, even then making tyrants "tremble in
their capitals," was so indignant at the outrage that the execution
was not ventured on, and he was left to languish in Jail, till on the
27th of March, 1616, a King more merciful took the old minister where
the wicked cease from troubling.[25]
[Footnote 25: 2 St. Tr. 869; 16 Montagu's Bacon, clxvi.; 2 Campbell,
291.]
In this case, Gentlemen of the Jury, you will notice three violations
of the law.
(1.) The opinion of the Judges before the trial was extrajudicial and
illegal.
(2.) The application of torture was contrary to law.
(3.) The statute of Treason was wrested to apply to this case--and a
crime was constructed by the servants of the court.
It is curious to read the opinion of James himself. "The British
Solomon" thus wrote:--
"So the only thing the Judges can doubt of is of the
delinquent's intention, on his bare denial to clear him
[himself], since nature teaches every man to defend his life
as he may; and whether in case there was a doubt herein, the
Judges should not rather incline to that side [namely, the
side of the Government,] wherein all probability lies: but
if Judges will needs trust rather the bare negative of an
_infamous delinquent_--then all the probabilities, or rather
infallible consequences upon the other part, caring more for
the safety of _such a monster_ than the preservation of a
crown in all ages following, whereupon depend the lives of
many millions, happy then are all _desperate and seditious
knaves_, but the fortune of this crown is more than
miserable. Which God forefend."[26]
[Footnote 26: 2 St. Tr. 879.]
3. In 1633, Laud, a tyrannical, ambitious man, and a servile creature
of the King, mentioned before, was made Archbishop of Canterbury,
continuing Bishop of London at the same time. Charles I. was strongly
inclined to Romanism, Laud also leaned that way, aiming to come as
near as possible to the Papal and not be shut out of the English
Church. He made some new regulations in regard to the Communion Table
and the Lord's Supper. John Williams, before mentioned, Dean of
Westminster and Bishop of Lincoln, who had been Lord Keeper under King
James, wrote a book against those innovations; besides, in his
episcopal court he had once spoken of the Puritans as "good subjects,"
and of his knowing "that the King did not wish them to be harshly
dealt with." In 1637 Laud directed that he should be prosecuted in the
Star-Chamber for "publishing false news and tales to the scandal of
his Majesty's government;" and "for revealing counsels of State
contrary to his oath of a Privy Counsellor." He was sentenced to pay a
fine of £10,000,--equal to $50,000, or thrice the sum in these times;
to be suspended from all offices, and kept a close prisoner in the
Tower during the King's pleasure--whence the Revolution set him at
liberty. Besides he wrote private letters to Mr. Osbalderston, and
called Laud "the little great man," for this he, in 1639, was fined
£5,000 to the King, and £3,000 to the Archbishop. Osbalderston in his
letters had spoken of the "great Leviathan" and the "little Urchin,"
and was fined £5,000, to the King, and the same to the Archbishop, and
sentenced also to stand in the pillory with his ears nailed to it![27]
[Footnote 27: 3 St. Tr. 769; 2 Campbell, 400.]
4. In 1629 Richard Chambers, a merchant of London, complained to the
Privy Council of some illegal and unjust treatment, and declared "that
the merchants in no part of the world are so screwed and wrung as in
England; that in Turkey they have more encouragement." Laud, who hated
freedom of speech and liberal comments on the government as much as
"eminent citizens" nowadays, is said to have told the king, "If your
majesty had many such Chambers, you would soon have no Chamber left to
rest in." The merchant was tried before the "commissioners" at the
Star-Chamber, and fined £2,000, and condemned to make a "submission
for his great offence,"[28] which the stout Puritan refused to do, and
was kept in prison till the Court of King's Bench, faithful to the
law, on Habeas Corpus, admitted him to bail: for which they were
reprimanded. Laud and all the ecclesiastical members of the
"commission" wished his fine £3,000.
[Footnote 28: 3 St. Tr. 373; Franklyn, 361; 2 Hallam (Paris, 1841), 6
_ac etiam_ 13; 2 Mrs. Macaulay, 16, 45, 65.]
5. In his place in Parliament in 1629, Sir John Eliot, one of the
noblest men in England's noblest age, declared that "the Council and
Judges had all conspired to trample underfoot the liberties of the
subject." Gentlemen, the fact was as notorious as the advance of the
Slave Power now is in America. But a few days after the king (Charles
I.) had dismissed his refractory Parliament, Eliot, with Hollis, Long,
Selden, Strode, and Valentine, most eminent members of the commons,
and zealous for liberty and law, was seized by the king's command and
thrown into prison. The Habeas Corpus was demanded--it was all in
vain, for Laud and Strafford were at the head of affairs, and the
priests and pliant Judges in Westminster Hall--Jones was one of
them--clove down the law of the land just as their subcatenated
successors did in Boston in 1851. The court decreed that they should
be imprisoned during the king's pleasure, and not released until
making submission and giving security for good behavior. Eliot was
fined £2,000, Hollis and Valentine in smaller sums. Eliot--the brave
man--refused submission, and died in the Tower. Thus was the attack
made on all freedom of speech in Parliament![29]
[Footnote 29: 3 St. Tr. 293; 1 Rushworth; 2 Hallam, 2; 2 Parl. Hist.
488, 504; Foster's Eliot, 100; 2 Mrs. Macaulay, ch. i. ii.]
6. In 1630, the very year of the first settlement of Boston, on the
4th of June, Rev. Dr. Alexander Leighton was brought before the Court
of High Commission, in the Star-Chamber, to be tried for a seditious
libel. He had published "An Appeal to the Parliament, or a Plea
against Prelacy," a work still well known, remonstrating against
certain notorious grievances in church and State, "to the end the
Parliament might take them into consideration and give such redress as
might be for the honor of the king, the quiet of the people, and the
peace of the church," the court of commissions accounted it "a most
odious and heinous offence, deserving the most serious punishment the
court could inflict, for framing a book so full of such pestilent,
devilish, and dangerous assertions." The two Chief Justices declared
if the case had been brought to their courts, they would have
proceeded against him for Treason, and it was only "his majesty's
exceeding great mercy and goodness" which selected the milder
tribunal. His sentence was a fine of £10,000, to be set in the
pillory, whipped, have one ear cut off; one side of his nose slit, one
cheek branded with S.S., Sower of Sedition, and then at some
convenient time be whipped again, branded, and mutilated on the other
side, and confined in the Fleet during life! Before the punishment
could be inflicted he escaped out of prison, but was recaptured and
the odious sentence fully executed. Those who "obstructed" the officer
in the execution of that "process" were fined £500 a piece.[30]
Gentlemen of the Jury, which do you think would most have astonished
the Founders of Massachusetts, then drawing near to Boston, that trial
on the 4th of June, 1630, or this trial, two hundred and twenty-five
years later? At the court of Charles it was a great honor to mutilate
the body of a Puritan minister.
[Footnote 30: 3 St. Tr. 383; Laud's Diary, 4th November; 2 Hallam,
28.]
But not only did such judges thus punish the most noble men who wrote
on political matters, there was no freedom of speech allowed--so
logical is despotism!
7. William Prynn, a zealous Puritan and a very learned lawyer, wrote a
folio against theatres called "a Scourge for Stage-Players," dull,
learned, unreadable and uncommon thick. He was brought to the
Star-Chamber in 1632-3, and Chief Justice Richardson--who had even
then "but an indifferent reputation for honesty and veracity"--gave
this sentence: "Mr. Prynn, I do declare you to be a Schism-Maker in
the Church, a Sedition-Sower in the Commonwealth, a wolf in sheep's
clothing; in a word 'omnium malorum nequissimus'--[the wickedest of
all scoundrels]. I shall fine him £10,000, which is more than he is
worth, yet less than he deserveth; I will not set him at liberty, no
more than a plagued man or a mad dog, who though he cannot bite, yet
will he foam; he is so far from being a sociable soul that he is not a
rational soul; he is fit to live in dens with such beasts of prey as
wolves and tygers like himself; therefore I do condemn him to
perpetual Imprisonment, as those monsters that are no longer fit to
live among men nor to see light." "I would have him branded in the
forehead, slit in the nose, and his ears cropped too." The sentence
was executed the 7th and 10th of May, 1633.[31] But nothing
intimidated, the sturdy man committed other offences of like nature,
"obstructing" other "officers," and was punished again, and banished.
But on the summoning of Parliament returned to England, and became
powerful in that Revolution which crushed the tyrants of the time.
[Footnote 31: 3 St. Tr. 561; 2 Hallam, 28, and his authorities. See
also 2 Echard, 109, _et seq._, 124, _et seq._, 202, 368, 510; the
remarks of Hume, Hist. ch. lii., remind me of the tone of the fugitive
slave bill Journals of Boston in 1850-54.]
8. In 1685, James II. was in reality a Catholic. He wished to restore
Romanism to England and abolish the work of the Reformation, the
better to establish the despotism which all of his family had sought
to plant. He was determined to punish such as spoke against the Papal
Church, though no law prohibited such speaking. Judge Jeffreys, a
member of the cabinet and favorite of the king, was at that time chief
justice--abundantly fit for the work demanded of him. The pious and
venerable Richard Baxter was selected for the victim. Let Mr. Macaulay
tell the story.
"In a Commentary on the New Testament, he had complained,
with some bitterness, of the persecution which the
Dissenters suffered. That men, who, for not using the
Prayerbook, had been driven from their homes, stripped of
their property, and locked up in dungeons, should dare to
utter a murmur, was then thought a high crime against the
State and Church. Roger Lestrange, the champion of the
government, and the oracle of the clergy, sounded the note
of war in the Observator. An information was filed. Baxter
begged that he might be allowed some time to prepare for his
defence. It was on the day on which Oates was pilloried in
Palace Yard that the illustrious chief of the Puritans,
oppressed by age and infirmities, came to Westminster Hall
to make this request. Jeffreys burst into a storm of rage.
'Not a minute,' he cried, 'to save his life. I can deal with
saints as well as with sinners. There stands Oates on one
side of the pillory; and if Baxter stood on the other, the
two greatest rogues in the kingdom would stand together.'"
"When the trial came on at Guildhall, a crowd of those who
loved and honored Baxter, filled the court. At his side
stood Doctor William Bates, one of the most eminent
Non-conformist divines. Two Whig barristers of great note,
Pollexfen and Wallop, appeared for the defendant."
"Pollexfen had scarce begun his address to the jury, when
the chief justice broke forth: 'Pollexfen, I know you well.
I will set a mark on you. You are the patron of the faction.
This is an old rogue, a schismatical knave, a hypocritical
villain. He hates the Liturgy. He would have nothing but
longwinded cant without book;' and then his lordship turned
up his eyes, clasped his hands, and began to sing through
his nose in imitation of what he supposed to be Baxter's
style of praying, 'Lord, we are thy people, thy peculiar
people, thy dear people.' Pollexfen gently reminded the
court that his late majesty had thought Baxter deserving of
a bishopric. 'And what ailed the old blockhead then,' cried
Jeffreys, 'that he did not take it?' His fury now rose
almost to madness. He called Baxter a dog, and swore that it
would be no more than justice to whip such a villain through
the whole city."
"Wallop interposed, but fared no better than his leader.
'You are in all these dirty causes, Mr. Wallop,' said the
judge. 'Gentlemen of the long robe ought to be ashamed to
assist such factious knaves.' The advocate made another
attempt to obtain a hearing, but to no purpose. 'If you do
not know your duty,' said Jeffreys, 'I will teach it you.'
"Wallop sat down, and Baxter himself attempted to put in a
word; but the chief justice drowned all expostulation in a
torrent of ribaldry and invective, mingled with scraps of
Hudibras. 'My lord,' said the old man, 'I have been much
blamed by Dissenters for speaking respectfully of bishops.'
"'Baxter for bishops!' cried the judge; 'that's a merry
conceit indeed. I know what you mean by bishops--rascals
like yourself, Kidderminster bishops, factious, snivelling
Presbyterians!'
"Again Baxter essayed to speak, and again Jeffreys bellowed,
'Richard, Richard, dost thou think we will let thee poison
the court? Richard, thou art an old knave. Thou hast written
books enough to load a cart, and every book as full of
sedition as an egg is full of meat. By the grace of God,
I'll look after thee. I see a great many of your brotherhood
waiting to know what will befall their mighty Don. And
there,' he continued, fixing his savage eye on Bates, 'there
is a doctor of the party at your elbow. But, by the grace of
God Almighty, I will crush you all!'
"Baxter held his peace. But one of the junior counsel for
the defence made a last effort, and undertook to show that
the words of which complaint was made, would not bear the
construction put on them by the information. With this view
he began to read the context. In a moment he was roared
down. 'You sha'n't turn the court into a conventicle!' The
noise of weeping was heard from some of those who surrounded
Baxter. 'Snivelling calves!' said the judge."[32]
[Footnote 32: 1 Macaulay, (Harper's Ed.) 456-8.]
He was sentenced to pay a fine of 500 marks, to lie in prison till he
paid it, and be bound to good behavior for seven years. Jeffreys, it
is said, wished him also to be whipped at the tail of a cart.[33] But
the King remitted his fine.
[Footnote 33: 1 Macaulay, 456; 11 St. Tr. 493.]
Throughout the reign of James II. the courts of law became more and
more contemptible in the eyes of the people. "All the three common law
courts were filled by incompetent and corrupt Judges."[34] But their
power to do evil never diminished.
[Footnote 34: 2 Campbell's Justices, 87.]
9. James II. wished to restore the Catholic form of religion, rightly
looking on Protestantism as hostile to his intended tyranny; so he
claimed a right to dispense with the laws relating thereto, put a
Jesuit into his Privy Council, expelled Protestants from their
offices, and filled the vacancy thus illegally made with Papists; he
appointed Catholic bishops.[35] In 1688 he published a proclamation.
It was the second of the kind,--dispensing with all the laws of the
realm against Catholicism; and ordered it to be read on two specified
Sundays during the hours of service in all places of public worship.
This measure seemed to be a special insult to the Protestants. The
declaration of indulgence was against their conscience, and in
violation of the undisputed laws of the land, but Chief Justice Wright
declared from the bench his opinion that it was "legal and
obligatory," and on the day appointed for reading the decree attended
church "to give weight to the solemnity," and as it was not read--for
the clerk "had forgot to bring a copy,"--he "indecently in the hearing
of the congregation abused the priest, as disloyal, seditious, and
irreligious."
[Footnote 35: See 2 Brewster's Newton, 108.]
But the clergy thought differently from the Chief
Justice--Episcopalians and Dissenters agreeing on this point. Seven
bishops petitioned the King that they might not be obliged to violate
their conscience, the articles of their religion, and the laws of the
realm, by reading the declaration. They presented their petition in
person to the King, who treated it and them with insolence and wrath.
"The king, says Kennet, was not contented to have this
declaration published in the usual manner, but he was
resolved to have it solemnly read in all churches as the
political gospel of his reign. The bishops and clergy were,
of all others the most averse to the subject-matter of the
declaration, as being most sensible of the ill design and
ill effects of it; and therefore the court seemed the more
willing to mortify these their enemies, and make them become
accessory to their own ruin; and even to eat their own dung,
as father Petre proudly threatened, and therefore this order
of council was made and published."[36]
[Footnote 36: 12 St. Tr. 239.]
The petition was printed and published with great rapidity, the
bishops were seized, thrown into the Tower, and prosecuted in the
court for a "false, feigned, malicious, pernicious, and seditious"
libel.
Judge Allybone thus addressed the Jury.
"And I think, in the first place, that _no man can_ take
upon him to _write against the actual exercise of the
government, unless he have leave from the government_, but
he makes a libel, be what he writes true or false; for if
once we come to impeach the government by way of argument,
it is the argument that makes it the government, or not the
government. So that I lay down that, in the first place,
_the government ought not to be impeached by argument_, nor
the exercise of the government shaken by argument; because I
can manage a proposition, in itself doubtful, with a better
pen than another man; this, say I, is a libel.
"Then I lay down this for my next position, that _no private
man can take upon him to write concerning the government at
all_; for _what has any private man to do with the
government_, if his interest be not stirred or shaken? It is
the business of the government to manage matters relating to
the government; it _is the business of subjects to mind only
their own properties and interests_. If my interest is not
shaken, _what have I to do with matters of government_? They
are not within my sphere. If the government does come to
shake my particular interest, the law is open for me, and I
may redress myself by law; and when I intrude myself into
other men's business that does not concern my particular
interest, I am a libeller.
"These I have laid down for plain propositions; now, then,
let us consider further, whether, if I will take upon me to
contradict the government, any specious pretence that I
shall put upon it, shall dress it up in another form and
give it a better denomination? And truly I think it is the
worse, because it comes in a better dress; for by that rule,
every man that can put on a good vizard, may be as
mischievous as he will, to the government at the bottom, so
that, whether it be in the form of a supplication, or an
address, or a petition, if it be what it ought not to be,
let us call it by its true name, and give it its right
denomination--it is a libel."
"The government here has published such a declaration as
this that has been read, relating to matters of government;
and _shall_, or ought _anybody_ to come and _impeach that as
illegal, which the government has done_? Truly, in my
opinion, I do not think he should, or ought; for by this
rule may every act of the government be shaken, when there
is not a parliament _de facto_ sitting.
"When the house of lords and commons are in being, it is a
proper way of applying to the king; there is all the
openness in the world for those that are members of
parliament, to make what addresses they please to the
government, for the rectifying, altering, regulating, and
making of what law they please; but if every private man
shall come and interpose his advice, I think there can never
be an end of advising the government.
"_We are not to measure things from any truth they have in
themselves, but from that aspect they have upon the
government; for there may be every tittle of a libel true,
and yet it may be a libel still_; so that I put no great
stress upon that objection, that the matter of it is not
false; and for sedition, it is that which every libel
carries in itself: and as every trespass implies _vi and
armis_, so every libel against the government carries in it
sedition, and all the other epithets that are in the
information. This is my opinion as to law in general. I will
not debate the prerogatives of the king, nor the privileges
of the subject; but as this fact is, I think these venerable
bishops did meddle with that which did not belong to them;
they took upon them, in a petitionary, to contradict the
actual exercise of the government, which I think no
particular persons, or singular body, may do."[37]
[Footnote 37: 12 St. Tr. 427, 428, 429.]
Listen, Gentlemen of the Jury, to the words of Attorney-General
Powis:--
"And I cannot omit here to take notice, that _there is not
any one thing that the law is more jealous of_, or does more
carefully provide for the prevention and punishment of,
_than all accusations and arraignments of the government. No
man is allowed to accuse even the most inferior magistrate
of any misbehavior in his office_, unless it be in a legal
course, _though the fact is true_. No man may say of a
justice of the peace, to his face, that he is unjust in his
office. _No man may tell a judge, either by word or
petition, you have given an unjust, or an ill judgment_, and
I will not obey it; _it is against the rules and laws of the
kingdom, or the like_. No man may say of the great men of
the nation, much less of the great officers of the kingdom,
that they do act unreasonably or unjustly, or the like;
least of all may any man say any such thing of the king; for
these matters tend to possess the people, that the
government is ill administered; and the consequence of that
is, to set them upon desiring a reformation; and what that
tends to, and will end in, we have all had a sad and too
dear bought experience."[38]
[Footnote 38: 12 St. Tr. 281.]
Hearken to the law of Solicitor-General Williams:--
"If any person have slandered the government in writing, you
are _not to examine the truth of that fact_ in such writing,
but the slander which it imports to the king or government;
and _be it never so true_, yet if slanderous to the king or
the government, _it is a libel and to be punished_; in that
case, _the right or wrong_ is _not to be examined, or if
what was done by the government be legal, or no_; but
whether the party have done such an act. If the king have a
power (for still I keep to that), to issue forth
proclamations to his subjects, and to make orders and
constitutions in matters ecclesiastical, if he do issue
forth his proclamation, and make an order upon the matters
within his power and prerogative; and if any one would come
and bring that power in question otherwise than in
parliament, that the matter of that proclamation be not
legal, I say that is sedition, and you are not to examine
the legality or illegality of the order or proclamation, but
the slander and reflection upon the government."
"If a person do a thing that is libellous, you shall not
examine the fact, but the consequence of it; whether it
tended to stir up sedition against the public, or to stir up
strife between man and man, in the case of private persons;
as if a man should say of a judge, he has taken a bribe, and
I will prove it.
"They tell the king it is inconsistent with their honor,
prudence, and conscience, to do what he would have them to
do. And if these things be not reflective upon the king and
government, I know not what is.
"I'll tell you what they should have done, Sir. If they were
commanded to do any thing against _their consciences, they
should have acquiesced till the meeting of the parliament_.
[At which some people in the court hissed.]
"_If the king will impose upon a man what he cannot do, he
must acquiesce_; but shall he come and fly in the face of
his prince? Shall he say it is illegal? and the prince acts
against prudence, honor, or conscience, and throw dirt in
the king's face? Sure that is not permitted; that is
libelling with a witness."[39]
[Footnote 39: 12 St. Tr. 415, 416, 417.]
Here, however, there was a JURY--the seven bishops were acquitted amid
the tumultuous huzzas of the people, who crowded all the open spaces
in the neighborhood of Westminster Hall, and rent the air with their
shouts, which even the soldiers repeated.[40]
[Footnote 40: See 2 Campbell's Justices, 95.]
Two of the Judges--Sir John Powell and Sir Richard Holloway--stood out
for law and justice, declaring such a petition to the King was not a
libel. They were presently thrust from their offices.
* * * * *
Gentlemen of the Jury, the Stuarts soon filled up the measure of their
time as of their iniquity, and were hustled from the throne of
England. But, alas, I shall presently remind you of some examples of
this tyranny in New England itself. Now I shall cite a few similar
cases of oppression which happened in the reign of the last King of
New England.
I just now spoke of Edmund Thurlow, showing what his character was and
by what means he gained his various offices, ministerial and judicial.
I will next show you one instance more of the evil which comes from
putting in office such men as are nothing but steps whereon despotism
mounts up to its bad eminence.
10. On the 8th of June, 1775,--it will be eighty years on the first
anniversary of Judge Curtis's charge to the grand-jury,--John Horne,
better known by his subsequent name John Horne Tooke, formerly a
clergyman but then a scholarly man devoting himself to letters and
politics--published the following notice in the _Morning Chronicle and
London Advertiser_, as well as other newspapers:--
"King's-Arms Tavern, Cornhill, June 7, 1775. At a special
meeting this day of several members of the Constitutional
Society, during an adjournment, a gentleman proposed that a
subscription should be immediately entered into by such of
the members present who might approve the purpose, for
raising the sum of £100, to be applied to the relief of the
widows, orphans, and aged parents of our beloved American
fellow-subjects, who, faithful to the character of
Englishmen, preferring death to slavery, were for that
reason only inhumanly murdered by the king's troops at or
near Lexington and Concord, in the province of
Massachusetts, on the 19th of last April; which sum being
immediately collected, it was thereupon resolved that Mr.
Horne do pay to-morrow into the hands of Mess. Brownes and
Collinson, on account of Dr. Franklin, the said sum of
100_l._ and that Dr. Franklin be requested to apply the same
to the above-mentioned purpose."
At that time Thurlow, whom I introduced to you a little while ago, was
Attorney-General, looking for further promotion from the Tory
Government of Lord North. Mansfield was Chief Justice, a man of great
ability, who has done so much to reform the English law, but whose
hostility to America was only surpassed by the hatred which he bore to
all freedom of speech and the rights of the Jury. The Government was
eager to crush the liberty of the American Colonies. But this was a
difficult matter, for in England itself there was a powerful party
friendly to America, who took our side in the struggle for liberty.
The city of London, however, was hostile to us, wishing to destroy our
merchants and manufacturers, who disturbed the monopoly of that
commercial metropolis. The government thought it necessary to punish
any man who ventured to oppose their tyranny and sympathize with
America. Accordingly it was determined that Mr. Horne should be
brought to trial. But as public opinion, stimulated by Erskine, Camden
and others, favored the rights of the Jury, it seems to have been
thought dangerous to trust the case to a Grand-Jury. Perhaps the Judge
had no brother-in-law to put on it, or the Attorney-General--though
famous also for his profanity,--doubted that any _swearing_ of his
would insure a bill; nay, perhaps he did not venture to "bet ten
dollars that I will get an indictment against him." Be that as it may,
the Attorney-General dispensed with the services of the Grand-Jury and
filed an information _ex officio_ against Mr. Horne, therein styling
him a "wicked, malicious, seditious, and ill-disposed person;"
charging him, by that advertisement, with "wickedly, maliciously, and
seditiously intending, designing, and venturing to stir up and excite
discontents and sedition;" "to cause it to be believed that divers of
his Majesty's innocent and deserving subjects had been inhumanly
murdered by ... his Majesty's troops; and unlawfully and wickedly to
encourage his Majesty's subjects in the said Province of Massachusetts
to resist and oppose his Majesty's Government." He said the
advertisement was "a false, wicked, malicious, scandalous, and
seditious libel;" "full of ribaldry, Billingsgate, scurrility,
balderdash, and impudence;" "wicked is a term too high for this
advertisement;" "its impudence disarmed its wickedness." In short, Mr.
Horne was accused of "resisting an officer," obstructing the execution
of the "process" whereby the American Provinces were to be made the
slave colonies of a metropolitan despotism. The usual charge of doing
all this by "force and arms," was of course thrown in. The publication
of the advertisement was declared a "crime of such heinousness and of
such a size as fairly called for the highest resentment which any
court of justice has thought proper to use with respect to crimes of
this denomination;" "a libel such that it is impossible by any
artifice to aggravate it;" "It will be totally impossible for the
imagination of any man, however shrewd, to state a libel more
scandalous and base in the fact imputed, more malignant and hostile to
the country in which the libeller is born, more dangerous in the
example if it were suffered to pass unpunished, than this:" "It is in
language addressed to the lowest and most miserable mortals, ... it is
addressed to the lowest of the mob, and the bulk of the people, who it
is fit should be otherwise taught, who it is fit should be otherwise
governed in this country."
Mr. Horne was brought to trial on the 4th of July, 1777. He defended
himself, but though a vigorous writer, he was not a good speaker, and
was in a strange place, while "Thurlow fought on his own dunghill,"
says Lord Campbell, "and throughout the whole day had the advantage
over him." There was a special jury packed for the purpose by the
hireling sheriff,--a "London jury" famous for corruption,--a
tyrannical and powerful judge, ready to turn every weapon of the court
against the defendant and to construct law against the liberty of
speech. Of course Mr. Horne was convicted.
But how should he be punished? Thurlow determined.
"My Lords, the punishments to be inflicted upon misdemeanors
of this sort, have usually been of three different kinds;
fine, corporal punishment by imprisonment, and infamy by the
judgment of the pillory. With regard to the _fine_, it is
impossible for justice to make this sort of punishment,
however the infamy will always fall upon the offender;
because it is well known, that men who have more wealth, who
have better and more respectful situations and reputations
to be watchful over, employ men in desperate situations both
of circumstances and characters, in order to do that which
serves their party purposes; and when the punishment comes
to be inflicted, this court must have regard to the apparent
situation and circumstances of the man employed, that is, of
the man convicted, with regard to the punishment.
"With regard to _imprisonment_, that is a species of
punishment not to be considered alike in all cases, but ...,
that it would be proper for the judgment of the court to
state circumstances which will make the imprisonment fall
lighter or heavier, ... that would be proper, if I had not
been spared all trouble upon that account, by hearing it
solemnly avowed ... by the defendant himself, that
imprisonment was no kind of inconvenience to him; for that
certain employments, ... would occasion his confinement in
so close a way, that it was mere matter of circumstance
whether it happened in one place or another; and that the
longest imprisonment which this court could inflict for
punishment, was not beyond the reach of accommodation which
those occasions rendered necessary to him. In this respect,
therefore, imprisonment is not only, ... not an adequate
punishment to the offence, but the public are told, ... that
it will be _no punishment_.
"I stated in the third place to your Lordships, _the pillory
to have been the usual punishment for this species of
offence_. I apprehend it to have been so, in this case, for
above two hundred years before the time when prosecutions
grew rank in the Star-Chamber ... the punishment of the
pillory was inflicted, not only during the time that such
prosecutions were rank in the Star-Chamber, but it also
continued to be inflicted upon this sort of crime, and that
by the best authority, after the time of the abolishing the
Star-Chamber, after the time of the Revolution, and while my
Lord Chief Justice Holt sat in this court.
"I would desire no better, no more pointed, nor any more
applicable argument than what that great chief justice used,
when it was contended before him that an abuse upon
government, upon the administration of several parts of
government, amounted to nothing, because there was no abuse
upon any particular man. That great chief justice said, they
amounted to much more; they are _an abuse upon all men_.
Government cannot exist, if the law cannot restrain that
sort of abuse. Government cannot exist, unless ... the full
punishment is inflicted which the most approved times have
given to offences of much less denomination than these, of
much less. I am sure it cannot be shown, that in any one of
the cases that were punished in that manner, the
aggravations of any one of those offences were any degree
adequate to those which are presented to your Lordship now.
If offences were so punished then, which are not so punished
now, they lose that expiation which the wisdom of those ages
thought proper to hold out to the public, as a restraint
from such offences being committed again.
"I am to judge of crimes in order to the prosecution; your
lordship is to judge of them ultimately for punishment. I
should have been extremely sorry, if I had been induced by
any consideration whatever, to have brought a crime of the
magnitude which this was (of the magnitude which this was
when I first stated it) into a court of justice, if I had
not had it in my contemplation also that it would meet with
an adequate restraint, which I never thought would be done
without affixing to it the _judgment of the pillory_; I
should have been very sorry to have brought this man here,
after all the aggravations that he has superinduced upon the
offence itself, if I had not been persuaded that those
aggravations would have induced the _judgment of the
pillory_."[41]
[Footnote 41: 20 St. Tr. 780-783.]
But Mansfield thought otherwise, and punished him with a fine of £200
and imprisonment for twelve months.[42]
[Footnote 42: 20 St. Tr. 651; 5 Campbell, 415.]
"Thus," says Lord Brougham, "a bold and just denunciation of the
attacks made upon our American Brethren, which nowadays would rank
among the very mildest and tamest effusions of the periodical press,
condemned him to prison for twelve months."[43]
[Footnote 43: Statesmen, 2 Series, 109.]
Thurlow was a man of low intellect, of a fierce countenance, a saucy,
swaggering, insolent manner, debauched in his morals beyond the
grossness of that indecent age,--ostentatiously living in public
concubinage,--a notorious swearer in public and private. But he knew
no law above the will of the hand that fed and could advance him, no
justice which might check the insolence of power. And in less than a
month after Mr. Horne was sent to jail, Thurlow was made Lord
Chancellor of England, and sat on the woolsack in the House of Lords.
His chief panegyrist can only say, "in worse times there have been
worse chancellors." "But an age of comparative freedom and refinement
has rarely exhibited one who so ill understood, or at least so ill
discharged, the functions of a statesman and legislator."
I will enrich this part of my argument with an example of the opinions
of this Judge, which would endear him to the present administration
in America, and entitle him to a high place among southern
politicians. In 1788 a bill was brought into Parliament to mitigate
the horrors of the African slave-trade. The Lord Chancellor, Thurlow,
opposed it and said:--
"It appears that the French have offered premiums to
encourage the African [slave] trade, and that they have
succeeded. The natural presumption therefore is, that _we
ought to do the same_. For my part, my Lords, I have no
scruple to say that if the 'five days' fit of philanthropy'
[the attempt to abolish the slave-trade] which has just
sprung up, and which has slept for twenty years together,
were allowed to sleep one summer longer, it would appear to
me rather more wise than thus to take up a subject
piecemeal, which it has been publicly declared ought not to
be agitated at all till next session of Parliament. Perhaps,
by such imprudence, the slaves themselves may be prompted by
their own authority, to proceed at once to a 'total and
immediate abolition of the trade.' One witness has come to
your Lordship's bar with a face of woe--his eyes full of
tears, and his countenance fraught with horror, and said,
'_My Lords, I am ruined if you pass this bill! I have risked
£30,000 on the trade this year! It is all I have been able
to gain by my industry, and if I lose it I must go to the
hospital!_' I desire of you to think of such things, my
Lords, in your _humane phrensy, and to show some humanity to
the whites as well as to the negroes_."[44]
[Footnote 44: 5 Campbell, 460; 27 Parl. Hist. 638.]
One measure of tyranny in the hands of such Judges is Constructive
Crime, a crime which the revengeful, or the purchased judge distils
out of an honest or a doubtful deed, in the alembic he has made out of
the law broken up and recast by him for that purpose, twisted, drawn
out, and coiled up in serpentine and labyrinthine folds. For as the
sweet juices of the grape, the peach, the apple, pear, or plumb may be
fermented, and then distilled into the most deadly intoxicating
draught to madden man and infuriate woman, so by the sophistry of a
State's Attorney and a Court Judge, well trained for this work, out of
innocent actions, and honest, manly speech, the most ghastly crimes
can be extorted, and then the "leprous distilment" be poured upon the
innocent victim,
"And a most instant tetter barks about,
Most lazar-like, with vile and loathsome crust,
All his smooth body!"
Here is an example. In 1668 some London apprentices committed a riot
by pulling down some houses of ill-fame in Moorfields, which had
become a nuisance to the neighborhood; they shouted "Down with Bawdy
Houses." Judge Kelyng had them indicted for High Treason. He said it
was "an accroachment of royal authority." It was "levying war." He
thus laid down the law. "The prisoners are indicted for levying war
against the King. By levying war is not only meant when a body is
gathered together as an army, but if a _company of people will go
about any public reformation, this is high treason_. These people do
pretend their design was against brothels; now let men to go about to
pull down brothels, with a captain [an apprentice "walked about with a
green apron on a pole"] and an ensign and weapons,--if this thing be
endured, _who is safe_? It is high treason because it doth betray the
peace of the nation, and _every subject is as much wronged as the
King_; for if every man may reform what he will, no man is safe;
therefore the thing is of desperate consequence, and we must make this
for a public example. There is reason why we should be very cautious;
we are but recently delivered from rebellion [Charles I. had been
executed nineteen years before, and his son had been in peaceable
possession of the throne for eight years], and we know that that
rebellion first began under the pretence of religion and the law; for
the Devil hath always this vizard upon it. We have great reason to be
very wary that we fall not again into the same error. Apprentices for
the future shall not go on in this manner. It proved that Beasly went
as their captain with his sword, and flourished it over his head [this
was the "weapons,"] and that Messenger walked about Moorfields with a
green apron on the top of a pole [this was the "ensign"]. What was
done by one, was done by all; in high treason all concerned are
principals."[45]
[Footnote 45: 1 Campbell's Justices, 404-5; Kelyng's Reports, 70.]
Thereupon thirteen apprentices who had been concerned in a riot were
found guilty of high treason, sentenced, and four hanged. All of the
eleven Judges--Twysden was one of them--concurred in the sentence,
except Sir Matthew Hale. He declared there was no treason committed;
there was "but an unruly company of apprentices."[46]
[Footnote 46: 6 St. Tr. 879, note 911.]
This same Judge Kelyng, singularly thick-headed and ridiculous, loved
to construct crimes where the law made none. Thus he declares, "in
cases of high treason, if any one do any thing by which he showeth his
_liking_ and _approbation_ to the Traitorous Design, this is in him
High Treason. For all are Principals in High Treason, who contribute
towards it by Action or Approbation."[47] He held it was an overt act
of treason to print a "treasonable proposition," such as this, "The
execution of Judgment and Justice is as well the people's as the
magistrates' duty, and if the magistrates pervert Judgment, the people
are bound by the law of God to execute judgment without them and upon
them."[48] So the printer of the book, containing the "treasonable
proposition," was executed. A man, by name Axtell, who commanded the
guards which attended at the trial and execution of Charles I., was
brought to trial for treason. He contended that he acted as a soldier
by the command of his superior officer, whom he must obey, or die. But
it was resolved that "that was no excuse, for his superior was a
Traitor and all that joined with him in that act were Traitors, and
did by that approve the Treason, and when the command is Traitorous,
then the Obedience to that Command is also Traitorous." So Axtell must
die. The same rule of course smote at the head of any private soldier
who served in the ranks![49]
[Footnote 47: Kelyng's Reports, 12.]
[Footnote 48: Ibid. 22.]
[Footnote 49: Kelyng's Reports, 13.]
These wicked constructions of treason by the court, out of small
offences or honest actions, continued until Mr. Erskine attacked them
with his Justice, and with his eloquence exposed them to the
indignation of mankind, and so shamed the courts into humanity and
common sense.[50] Yet still the same weapon lies hid under the
Judicial bench as well of England as of America, whence any malignant
or purchased Judge, when it suits his personal whim or public
ambition, may draw it forth, and smite at the fortune, the reputation,
or the life of any innocent man he has a private grudge against, but
dares not meet in open day. Of this, Gentlemen of the Jury, in due
time.
[Footnote 50: See his Defence of Hardy, 24 St. Tr. 877.]
* * * * *
The mass of men, busy with their honest work, are not aware what power
is left in the hands of judges--wholly irresponsible to the people;
few men know how they often violate the laws they are nominally set to
administer. Let me take but a single form of this judicial
iniquity--the Use of Torture, borrowing my examples from the history
of our mother country.
In England the use of torture has never been conformable either to
common or to statute law; but how often has it been practised by a
corrupt administration and wicked judges! In 1549 Lord Seymour of
Sudley, Admiral of England, was put to the torture;[51] in 1604 Guy
Fawkes was "horribly racked."[52] Peacham was repeatedly put to
torture as you have just now heard, and that in the presence of Lord
Bacon himself in 1614.[53] Peacock was racked in 1620, Bacon and Coke
both signing the warrant for this illegal wickedness,--"he deserveth
it as well as Peacham did," said the Lord Chancellor, making his own
"ungodly custom" stand for law.[54] In 1627 the Lord Deputy of Ireland
wanted to torture two priests, and Charles I. gave him license, the
privy council consenting--"all of one mind that he might rack the
priests if he saw fit, and hang them if he found reason!"[55] In 1628
the judges of England solemnly decided that torture was unlawful; but
it had always been so,--and Yelverton, one of the judges, was a member
of the commission which stretched Peacham on the rack.[56] Yet, spite
of this decision, torture still held its old place, and a warrant from
the year 1610 still exists for inflicting this illegal atrocity on a
victim of the court.[57] Yet even so late as 1804, when Thomas Pictou,
governor of Trinidad, put a woman to tortures of the most cruel
character, by the connivance of the court he entirely escaped from all
judicial punishment.[58] Yes, torture was long continued in England
itself, though not always by means of thumbscrews and Scottish boots
and Spanish racks; the monstrous chains, the damp cells, the perpetual
irritation which corrupt servants of a despotic court tormented their
victims withal, was the old demon under another name.[59] Nay, within
a few months the newspapers furnish us with examples of Americans
being put to the torture of the lash to force a confession of their
alleged crime--and this has been done by the power which this court
has long been so zealous to support--the Slave Power of America.
[Footnote 51: See 2 St. Tr. 774, note.]
[Footnote 52: 1 Jardine, Crim. Tr. 16.]
[Footnote 53: 2 St. Tr. 871.]
[Footnote 54: 1 Jardine, 19.]
[Footnote 55: Ibid.]
[Footnote 56: 3 St. Tr. 371. See 30 St. Tr. 892.]
[Footnote 57: 1 Jardine, 20. See Emlyn, Preface to St. Tr. in 1
Hargrave, p. iii.]
[Footnote 58: 30 St. Tr. 225.]
[Footnote 59: See case of Huggins in 17 St. Tr. 297, 309.]
It has been well said:--
"It must be owned that the Guards and Fences of the law have
not always proved an effectual security for the subject. The
Reader will ... find many Instances wherein they who hold
the sword of Justice did not employ it as they ought to in
punishment of Evil-Doers, but to the Oppression and
Destruction of Men more righteous than themselves. Indeed it
is scarce possible to frame a Body of Laws which a
tyrannical Prince, influenced by wicked Counsellors and
corrupt Judges, may not be able to break through.... The Law
itself is a dead letter. Judges are the interpreters of it,
and if they prove men of no Conscience nor Integrity, they
will give what sense they will to it, however different from
the true one; and when they are supported by superior
authority, will for a while prevail, till by repeated
iniquities they grow intolerable and throw the State into
convulsions which may at last end in their own ruin. This
shows how valuable a Blessing is an upright and learned
Judge, and of what great concern it is to the public that
none be preferred to that office but such whose Ability and
Integrity may be safely depended on."[60]
[Footnote 60: 1 Hargrave's St. Tr. 6.]
Thus, Gentlemen of the Jury, is it that judges who know no law but the
will of "the hand that feeds them," appointed for services rendered to
the enemies of mankind and looking for yet higher rewards, have sought
to establish the despotism of their masters on the ruin of the People.
But the destruction of obnoxious individuals is not the whole of their
enormity; so I come to the next part of the subject.
(III.) The next step is for such judges to interpret, wrest, and
pervert the laws so as to prepare for prospective Acts of Tyranny.
Here, Gentlemen of the Jury, I shall have only too many examples to
warn you with.
Early in his reign James I. sought to lay burthensome taxes on the
people without any act of Parliament; this practice was continued by
his successors.
1. In 1606 came "the great Case of Impositions," not mentioned in the
ordinary histories of England. The king assumed the right to tax the
nation by his own prerogative. He ordered a duty of five shillings on
every hundred pounds of currants imported into the kingdom to be
levied in addition to the regular duty affixed by Act of Parliament.
This was contrary to law, nay, to the Constitution of England, her
Magna Charta itself provided against unparliamentary taxation. Sir
John Bates, a London merchant, refused to pay the unlawful duty, and
was prosecuted by information in the Star-Chamber. "The courts of
justice," says Mr. Hallam, "did not consist of men conscientiously
impartial between the king and the subject; some corrupt with hopes of
promotion, many more fearful of removal, or awe-struck by the fear of
power." On the "trial" it was abundantly shown that the king had no
right to levy such a duty. "The accomplished but too pliant judges,
and those indefatigable hunters of precedents for violations of
constitutional government, the great law-officers of the crown,"
decided against the laws, and Chief Justice Fleming maintained that
the king might lay what tax he pleased on imported goods! The corrupt
decision settled the law for years--and gave the king absolute power
over this branch of the revenue, involving a complete destruction of
the liberty of the people,--for the Principle would carry a thousand
measures on its back.[61] The king declared Fleming a judge to his
"heart's content." Bacon's subserviency did not pass unrewarded. Soon
after James issued a decree under the great seal, imposing heavy
duties on almost all merchandise "to be for ever hereafter paid to the
king and his successors, on pain of his displeasure."[62] Thus the
Measure became a Principle.
[Footnote 61: 2 St. Tr. 371, and 11 Hargrave, 29; 1 Campbell's
Justices, 204.]
[Footnote 62: 1 Hallam, 231. See 1 Parl. Hist. 1030, 1132, 1150;
Baker's Chronicle, 430.]
2. James, wanting funds, demanded of his subjects forced contributions
of money,--strangely called "Benevolences," though there was no
"good-will" on either side. It was clearly against the fundamental
laws of the kingdom. Sir Oliver St. John refused to pay what was
demanded of him, and wrote a letter to the mayor of Marlborough
against the illegal exaction. For this he was prosecuted in the
Star-Chamber in 1615 by Attorney-General Bacon. The court, with Lord
Chancellor Ellesmere at its head, of course decided that the king had
a right to levy Benevolences at pleasure. St. John was fined five
thousand pounds, and punished by imprisonment during the king's
pleasure. This decision gave the king absolute power over all property
in the realm,--every private purse was in his hands![63] With such a
court the king might well say, "Wheare any controversyes arise, my
Lordes the Judges chosene betwixte me and my people shall discide and
rulle me."[64]
[Footnote 63: 2 St. Tr. 899; 1 Hallam, 251; 2 Campbell, 291.]
[Footnote 64: 1 Parl. Hist. 1156.]
3. Charles I. proceeded in the steps of his father: he levied forced
loans. Thomas Darnel and others refused to pay, and were put in prison
on a General Warrant from the king which did not specify the cause of
commitment. They brought their writs of _habeas corpus_, contending
that their confinement was illegal. The matter came to trial in 1627.
Sir Randolf Crewe, a man too just to be trusted to do the iniquity
desired, was thrust out of office, and Sir Nicolas Hyde appointed
chief justice in his place. The actual question was, Has the king a
right to imprison any subject forever without process of law? It was
abundantly shown that he had no such right. But the new chief justice,
put in power to oppress the people, remembering the hand that fed him,
thus decreed,--"Mr. Attorney hath told you that the _king hath done
it, and we trust him in great matters_, and he is bound by law, and he
bids us proceed by law; ... and we make no doubt but _the king_, if
you look to him, he knowing the cause why you are imprisoned, _he will
have mercy_; but that we believe that ... he cannot deliver you, but
_you must be remanded_." Thus the judges gave the king absolute power
over the liberties of any subject.[65]
[Footnote 65: 3 St. Tr. 1. See also 2 Parl. Hist. 288; 1 Rushworth and
1 Mrs. Macaulay, 341.]
But the matter was brought up in Parliament and discussed by men of a
different temper, who frightened the judge by threats of impeachment,
and forced the king to agree to the PETITION OF RIGHT designed to put
an end to all such illegal cruelty. Before Charles I. would sign that
famous bill, he asked Judge Hyde if it would restrain the king "from
committing or restraining a subject _without showing cause_." The
crafty judge answered, "_Every law_, after it is made, _hath its
exposition, which is to be left to the courts of justice to
determine_; and although the Petition be granted _there is no fear of
[such a] conclusion as is intimated in the question_!" That is, the
court will interpret the plain law so as to oppress the subject and
please the king! As the judges had promised to annul the law, the
king signed it.[66] Charles dissolved Parliament and threw into jail
its most noble and powerful members--one of whom, Eliot, never left
the prison till death set him free.[67] The same chief justice gave an
extrajudicial opinion justifying the illegal seizure of the
members,--"that a parliament man committing an offence against the
King in Parliament not in a parliamentary course, may be punished
after the Parliament is ended;" "that by false slanders to bring the
Lords of the Council and the Judges, not in a parliamentary way, into
the hatred of the people and the government into contempt, was
punishable out of Parliament, in the Star-Chamber, as an offence
committed in Parliament beyond the office, and beside the duty of a
parliament man."[68] Thus the judges struck down freedom of speech in
Parliament.
[Footnote 66: 1 Campbell, Justices, 311; 2 Parl. Hist. 245, 350, 373,
408, _et al._; 3 St. Tr. 59.]
[Footnote 67: See above, p. 29.]
[Footnote 68: 1 Campbell's Justices, 315.]
4. In 1634 Charles I. issued a writ levying ship-money, so called, on
some seaport towns, without act of Parliament. London and some towns
remonstrated, but were forced to submit, all the courts being against
them. Chief Justice Finch, "a servile tool of the despotic court,"
generalized this unlawful tax, extending it to inland towns as well as
seaboard, to all the kingdom. All landholders were to be assessed in
proportion to their property, and the tax, if not voluntarily paid,
collected by force. The tax was unpopular, and clearly against the
fundamental law of the kingdom. But if the government could not get
the law on its side it could control its interpreters, for "every law
hath its exposition." So the Judges of Assize were ordered in their
circuits to tell the people to _comply with the order and pay the
money_! The King got all extrajudicial opinion of the twelve Judges
delivered irregularly, out of court, in which they unanimously
declared that in time of danger the _King might levy such tax as he
saw fit, and compel men to pay it_. He was the sole judge of the
danger, and of the amount of the tax.[69]
[Footnote 69: 3 St. Tr. 825. See the opinion of the Judges with their
twelve names, 844, and note [dagger symbol].]
John Hampden was taxed twenty shillings--he refused to pay, though he
knew well the fate of Richard Chambers a few years before. The case
came to trial in 1637, in the Court of Exchequer before Lord
Chancellor Coventry, a base creature, mentioned before. It was "the
great case of Ship-money." The ablest lawyers in England showed that
the tax was contrary to Magna Charta, to the fundamental laws of the
realm, to the Petition of Right and to the practice of the kingdom.
Hampden was defeated. Ten out of the twelve Judges sided with the
King. Croke as the eleventh had made up his mind to do the same, but
his noble wife implored him not to sacrifice his conscience for fear
of danger, and the Woman, as it so often happens, saved the man.[70]
Attorney-General Banks thus set forth the opinion of the Government,
and the consequent "decision" of the Judges. He rested the right of
levying Ship-money on the "intrinsic, absolute authority of the King."
There was no Higher Law in Old England in 1634! Banks said, "this
power [of arbitrary and irresponsible taxation] is innate in the
person of an absolute King, and in the persons of the Kings of
England. All-magistracy it is of nature; and obedience and subjection
[to] it is of nature. This power is not anyways derived from the
people, but reserved unto the King when positive laws first began. For
the King of England, he is an absolute monarch; nothing can be given
to an absolute prince but what is inherent in his person. He can do no
wrong. He is the sole judge and we ought not to question him, whom the
law trusts we ought not to distrust." "The Acts of Parliament contain
no express words to take away so high a prerogative; and the King's
prerogative, even in lesser matters, is always saved, where express
words do not restrain it."[71]
[Footnote 70: Whitelocke, Memor. 25.]
[Footnote 71: 2 Hallam, 16.]
It required six months of judicial labor to bring forth this result,
which was of "infinite disservice to the crown." Thereupon Mr. Hallam
says:--
"Those who had trusted to the faith of the judges were
undeceived by the honest repentance of some, and looked with
indignation on so prostituted a crew. That respect for
courts of justice which the happy structure of our Judicial
administration has in general kept inviolate, was exchanged
for distrust, contempt, and a desire of vengeance. They
heard the speeches of some of the Judges with more
displeasure than even their final decision. Ship-money was
held lawful by Finch and several other Judges, not on the
authority of precedents which must in their nature have some
bounds, but on principles subversive of every property or
privilege in the subject. Those paramount rights of
monarchy, to which they appealed to-day in justification of
Ship-money, might to-morrow serve to supersede other laws,
and maintain more exertions of despotic power. It was
manifest by the whole strain of the court lawyers that no
limitations on the King's authority could exist but by the
King's sufferance. This alarming tenet, long bruited among
the churchmen and courtiers, now resounded in the halls of
justice."[72]
[Footnote 72: 2 Hallam, 18.]
Thus by the purchased vote of a corrupt Judiciary all the laws of
Parliament, all the customs of the Anglo-Saxon tribe, Magna Charta
itself with its noble attendant charters, were at once swept away, and
all the property of the kingdom put into the hands of the enemy of the
People. These four decisions would make the King of England as
absolute as the Sultan of Turkey, or the Russian Czar. If the opinion
of the Judges in the case of Impositions and Ship-money were accepted
in law,--then all the Property of the People was the King's; if the
courts were correct in their judgments giving the King the power by
his mere will to imprison any subject, during pleasure, and also to do
the same even with members of Parliament and punish them for debates
in the House of Commons, then all liberty was at an end, and the
King's Prerogative extended over all acts of Parliament, all property,
all persons.
5. One step more must be taken to make the logic of despotism perfect,
and complete the chain. That work was delegated to clergymen purchased
for the purpose--Rev. Dr. Robert Sibthorpe and Rev. Dr. Roger
Mainwaring. The first in a sermon "of rendering all their dues,"
preached and printed in 1627, says, "the Prince who is the Head, and
makes his Court and Council, it is his duty to direct and make laws.
'He doth whatsoever pleaseth him;' 'where the word of the King is
there is power, and who may say unto him, What doest thou?'" And
again, "If Princes command any thing which subjects may not perform,
because it is against the Laws of God, or of Nature, or impossible;
yet Subjects are bound to undergo the punishment, without either
resisting, or railing, or reviling, and are to yield a Passive
Obedience where they cannot exhibit an Active one, ... but in all
others he is bound to active obedience."[73]
[Footnote 73: Cited in Franklyn, 208; 1 Rushworth, 422, 436, 444.]
Mainwaring went further, and in two famous sermons--preached, one on
the 4th of July, 1628, the other on the 29th of the same
month--declared that "the King is not bound to observe the Laws of the
Realm concerning the Subject's Rights and Liberties, but that his
_Royal will and Command_, in imposing Loans, and Taxes, without
consent of Parliament, _doth oblige the subject's conscience upon pain
of eternal damnation_. That those who refused to pay this Loan
offended against the Law of God and the King's Supreme Authority, and
became guilty of Impiety, Disloyalty, and Rebellion. And that the
authority of Parliament is not necessary for the raising of Aid and
Subsidies; and that the slow proceedings of such great Assemblies were
not fitted for the Supply of the State's urgent necessities, but would
rather produce sundry impediments to the just designs of Princes."
"_That Kings partake of omnipotence with God._"[74]
[Footnote 74: Franklyn, 208, 592. These two Sermons were published in
a volume with the title "Religion and Allegiance."... "Published by
his Majesty's special command." (London, 1628.) Prof. Stuart seems
inspired by this title in giving a name to his remarkable
publication--written with the same spirit as Dr. Mainwaring's--"Conscience
and the Constitution." (Andover, 1851.) See 3 St. Tr. 335; 1
Rushworth, 422, 436, 585, _et al._; 1 Hallam, 307; 2 Parl. Hist. 388,
410.]
The nation was enraged. Mainwaring was brought before Parliament,
punished with fine and imprisonment and temporary suspension from
office and perpetual disability for ecclesiastical preferment. But the
King who ordered the publication of the sermons, and who doubtless had
induced him to preach them, immediately made him Rector of Stamford
Parish, soon appointed him Dean of Worcester, and finally in 1645 made
him Bishop of St. David's. A few years ago such clerical apostasy
would seem astonishing to an American. But now, Gentlemen of the Jury,
so rapid has been the downfall of public virtue, that men filling the
pulpits once graced and dignified by noblest puritanic piety, now
publicly declare there is no law of God above the fugitive slave bill.
Nay, a distinguished American minister boldly proclaimed his readiness
to send his own Mother (or "Brother") into eternal bondage! Thus
modern history explains the old; and the cheap bait of a republican
bribe can seduce American dissenters, as the wealthy lure of royal
gifts once drew British churchmen into the same pit of infamy. Alas,
hypocrisy is of no sect or nation.
Gentlemen, the Government of England once decreed "that every
clergyman, four times in the year, should instruct his parishioners in
the Divine right of Kings, and the damnable sin of resistance."[75] No
Higher Law! America has ministers who need no act of Parliament to
teach them to do the same; they run before they are sent.
[Footnote 75: 2 Campbell, 460; 1 Rushworth, 1205.]
6. After the head of one Stuart was shorn off and his son had
returned, no wiser nor better than his father, the old progress of
despotism began anew. I pass over what would but repeat the former
history, and take two new examples to warn the nation with, differing
from the old only in form.
In 1672, Charles II. published a proclamation denouncing rigorous
penalties against all such as _should speak disrespectfully of his
acts_, or _hearing others thus speak should not immediately inform the
magistrates_! Nay, in 1675, after he had sold himself to the French
king, and was in receipt of an annual pension therefrom, he had this
test-oath published for all to sign: "I do solemnly declare that _it
is not lawful upon any pretence whatever to take up arms against the
king_, ... and that _I will not_, at any time to come, _endeavor the
alteration of the government_, either in Church or State."[76]
[Footnote 76: Carroll's Counter Revolution (Lond. 1846), 99, _et
seq._]
An oath yet more stringent was enforced in Scotland with the edge of
the sword, namely, to defend all the prerogatives of the crown, "_never
without the king's permission to take part in any deliberations upon
ecclesiastical or civil affairs; and never to seek any reform in
Church or State_."
Notwithstanding all that the Charleses had done to break down the
liberty of Englishmen, still the great corporate towns held out,
intrenched behind their charters, and from that bulwark both annoyed
the despot and defended the civil rights of the citizen. They also
must be destroyed. So summons of _quo warranto_ were served upon them,
which frightened the smaller corporations and brought down their
charters. Jeffreys was serviceable in this wicked work, and on his
return from his Northern Circuit, rich with these infamous spoils, as
a reward for destroying the liberties of his countrymen, the king
publicly presented him with a ring, in token of "acceptance of his
most eminent services." This fact was duly blazoned in the Gazette,
and Jeffreys was "esteemed a mighty favorite," which, "together with
his lofty airs, made all the charters, like the walls of Jericho, fall
down before him, and he returned, laden with surrenders, the spoil of
towns."[77]
[Footnote 77: 8 St. Tr. 1038, and the quotations from North (Examen.)
Sprat, and Roger Coke, in note on p. 1041, _et seq._ See, too, Fox,
James II. p. 48, 54, and Appendix, Barillon's Letter of Dec. 7th,
1684.]
London still remained the strong-hold of commerce, of the Protestant
Religion, and of liberal Ideas in domestic Government; for though
subsequently corrupted by lust of gain, which sought a monopoly, the
great commercial estates and families of England were not then on the
side of Despotism, as now strangely happens in America.
When the king sought to ruin Shaftesbury,--a corrupt man doubtless,
but then on the side of liberty, the enemy of encroaching
despotism,--a London Grand-Jury refused to find a bill, and was warmly
applauded by the city. Their verdict of IGNORAMUS was a "personal
liberty bill" for that time, and therefore was the king's wrath
exceeding hot, for "Ignoramus was mounted in Cathedra," and there was
a stop put to such wickedness. So London must be brought down. She
refused to surrender her Charter. In 1682 the king proceeded to wrest
it from her by the purchased hand of the courts of law. But even they
were not quite adequate to the work. So Chief Justice Pemberton was
displaced, and Saunders,--a man as offensive in his personal habit of
body as he was corrupt in conduct and character--was put in his
office. Dolbin, too just for the crime demanded of him, was turned
out, and Withins made to succeed him. For "so great a weight was there
at stake as could not be trusted to men of doubtful principles," says
North. Saunders, who had plotted this whole matter, was struck with an
apoplexy when sentence was to be given, but sent his opinion in
writing. Thus on the judgment given by only two judges, who assigned
no reasons for their decision, it was declared that the Charter of
London was forfeit, and the liberties and franchises of the city
should "be seized into the king's hands."[78]
[Footnote 78: 2 Hallam, 333; Burnet, Own Times (London, 1838), 350; 8
St. Tr. 1039, 1081 note, 1267, _et seq._; 2 Campbell, Justices, 63;
North's Examen. 626; Fox, 54.]
Thus fell the charter of London! Gentlemen of the Jury, the same sword
was soon to strike at the neck of New England; the charter of
Massachusetts could not be safe in such a time.
In 1686 James II. wished to destroy Protestantism,--not that he loved
the Roman form of religion, but that tyranny which it would help him
get and keep. So he claimed the right by his royal prerogative to
dispense with any laws of the land. Of the twelve Judges of England
eight were found on his side, and the four unexpectedly proven
faithful were at once dismissed from office and their places filled
with courtiers of the king, and the court was unanimous that the king
had a constitutional right to destroy the constitution. Then he had
not only command of the purses of his subjects and their bodies, but
also of their mind and conscience, and could dictate the actual
Religion of the People as well as the official "religion" of the
priests.[79]
[Footnote 79: 11 St. Tr. 1165; 12 Ibid. 358.]
One State-secret lay at the bottom of the Stuarts' plans,--to appoint
base men for judges, and if by accident a just man came upon the
bench, to keep him in obscurity or to hustle him from his post. What
names they offer us--Kelyng, Finch, Saunders, Wright, Jeffreys,
Scroggs![80] infamous creatures, but admirable instruments to destroy
generous men withal and devise means for the annihilation of the
liberties of the people. Historians commonly dwell on the fields of
battle, recording the victories of humanity, whereof the pike and gun
were instruments; but pass idly over the more important warfare which
goes on in the court house, only a few looking on, where lawyers are
the champions of mankind, and the battle turns on a sentence; nay, on
a word which determines the welfare of a nation for ages to come. On
such little hinges of law do the great gates hang, and open or shut to
let in the happiness or the ruin of millions of men! Naseby and
Worcester are important places truly, venerable for great deeds.
Cromwell and Blake are names not likely to perish while men can
appreciate the heroism which sheds blood. But Westminster Hall has
rung with more important thunder than cannon ever spoke, and Pym and
Selden, St. John and Hampden--nay, Penn, Bunyan, Fox, Lilburne--have
done great service for mankind. Gentlemen of the Jury, it is a matter
of great magnitude which hinges on the small question of fact and law
to-day. You are to open or shut for Humanity. If the People make
themselves sheep there will be wolves enough to eat you up.
[Footnote 80: This last name is thought to be extinct in Great
Britain, but I find one Thomas Scruggs _in Massachusetts_ in 1635 _et
post_, 1 Mass. Records (1628-1641), index.]
It is difficult to calculate the amount of evil wrought by such
corrupt judges as I have spoken of; they poison the fountains of
society. I need not speak of monsters like Scroggs and Jeffreys, whose
names rot in perpetual infamy, but creatures less ignoble, like
Wright, Saunders, Finch, Kelyng, Thurlow, Loughborough, and their
coadjutors, must be regarded as far more dangerous than thieves,
murderers, or pirates. A cruel, insolent Judge selecting the worst
customs, the most oppressive statutes, and decisions which outrage
human nature--what an amount of evil he can inflict on groaning
humanity!
* * * * *
Gentlemen of the Jury, in this long sad history of judicial tyranny in
England there is one thing particularly plain: such judges hate
freedom of speech, they would restrict the Press, the Tongue, yes, the
Thought of mankind. Especially do they hate any man who examines the
actions of the government and its servile courts, and their violation
of justice and the laws. They wish to take exemplary and malignant
vengeance on all such. Let me freshen your knowledge of some examples.
1. In 1410 the government made a decree "that whatsoever they were
that should rede the Scriptures in the mother tongue, they should
forfeit land, catel, body, lif, and godes from their heyres forever,
and so be condempned for heretykes to God, enemies to the crowne, and
most errant traiters to the land." The next year, in _one day
thirty-nine persons were first hanged and then burned for this
"crime."_[81]
[Footnote 81: 1 St. Tr. 252.]
2. In 1590, Mr. Udall, a Puritan minister, published a book,
"Demonstrations of Discipline," not agreeable to the authorities. He
was brought to a trial for a Felony,--not merely a "misdemeanor." The
jury were ordered by the judge to find him guilty of that crime if
they were satisfied that he published the book,--for the court were to
judge whether the deed amounted to that crime! He was found "guilty,"
and died in jail after nearly three years of cruel confinement.[82]
[Footnote 82: 1 St. Tr. 1271; 1 Neal's Puritans (N.Y. 1844), 190. See
16 Parl. Hist. 1276, where Mr. Dunning says this is the first example
of such a charge to a jury.]
3. In 1619 one Williams of Essex wrote a book explaining a passage in
the book of Daniel as foretelling the death of James I. in 1621. He
inclosed the manuscript in a box, sealed it, and secretly conveyed it
to the king. For this he was tried for high treason, and of course
executed. "_Punitur Affectus, licet non sequatur Effectus_," said the
court, for "_Scribere est agere_," "Punish the wish though the object
be not reached," for "writing is doing!"[83]
[Footnote 83: 2 St. Tr. 1085.]
4. In 1664 Mr. Keach, a Baptist, published a "Childs' Instructer, or a
New and Easy Primmer," in which he taught the doctrines of his sect,
"that children ought not to be baptized" but only adults; "that laymen
may preach the gospel." He was brought before Lord Chief Justice Hyde,
who after insulting the prisoner, thus charged the grand-jury:--"He is
a base and dangerous fellow; and if this be suffered, children by
learning of it will become such as he is, and therefore I hope you
will do your duty." Of course such a jury indicted him. The "trial"
took place before Judge Scroggs; the Jury were at first divided in
opinion. "But," said the Judge, "you must agree!" So they found him
guilty. He was fined "£20, twice set in the pillory, and bound to make
public submission."[84]
[Footnote 84: 7 St. Tr. 687.]
5. In 1679 George Wakeman and others were tried for high treason
before Scroggs, whose conduct was atrocious, and several pamphlets
were published commenting on the ridiculous and absurd conduct of this
functionary, "Lord Chief Justice Scroggs." One Richard Radley in a
bantering talk had bid another man "Go to Weal Hall, to my Lord
Scroggs, _for he has received money enough of Dr. Wakeman_!" Radley
was indicted for "speaking scandalous words of Chief Justice Scroggs."
Whereupon at the opening of the court that eminent officer, who did
not disdain to wreak public and judicial vengeance on heads that
wrought his private and personal grief, made a speech setting forth
his magisterial opinions on the liberty of the press. Doubtless this
court knows original authority for the opinions they follow; but for
your instruction, Gentlemen of the Jury, I will give you the chief
things in the judicial speech of Scroggs, Lord Chief Justice of the
Supreme Court of England in 1679.[85]
[Footnote 85: 6 St. Tr. 701; see Dunning in 16 Parl. Hist. 1276, _et
seq._]
"For these hireling scribblers who traduce it [the fairness
and equality of the trial in which he had been notoriously
unfair and unequal], who write to eat, and lie for bread, I
intend to meet with them another way; for they are only safe
while they can be secret; but so are vermin, so long as they
can hide themselves.... They shall know that the law wants
not the power to punish a libellous and licentious press,
nor I a resolution to exact it. And this is all the answer
is fit to be given (besides a whip) to these hackney
writers." "However, in the mean time, the _extravagant
boldness of men's pens and tongues is not to be endured, but
shall be severely punished_; for if once causes come to be
tried with complacency to particular opinions, and shall be
innocently censured if they go otherwise, public causes
shall all receive the doom as the multitude happen to be
possessed; and at length any cause shall become public ...
at every session the Judges shall be arraigned, the Jury
condemned, and the verdicts overawed to comply with popular
wish and indecent shouts."
"There are a set of men ... that too much approve and
countenance such vulgar ways, ... that embrace all sorts of
informations, true or false, likely or impossible, nay
though never so silly and ridiculous, they refuse none; so
shall all addresses be made to them, and they be looked on
as the only patrons of religion and government!"
His associates chimed in with accordant howl. Puny Judge Jones
declared,--
"We have a particular case here before us, as a matter of
scandal against a great Judge, the _greatest Judge in the
kingdom_, in criminal causes [the Lord Chancellor Nottingham
was greater in _civil_ causes]; and it is a great and an
high charge upon him. And certainly there was never any age,
I think, more licentious than this in aspersing governors,
scattering of libels and _scandalous speeches against those
that are in authority_: and without all doubt _it doth
become the court to show their zeal in suppressing it_." [It
was 'resisting an officer.'] "That trial [of Dr. Wakeman]
was managed with _exact justice and perfect integrity_. And
therefore I do think it very fit that this person be
proceeded against by an information, that he may be made _a
public example_ to all such as shall presume to scandalize
the government, and the governors, with any false aspersions
and accusations."
Accordingly Mr. Radley, for that act, was convicted of speaking
"scandalous words against the Lord Chief Justice Scroggs" and fined
£200.[86]
[Footnote 86: 7 St. Tr. 701.]
Mr. Hudson says of the Star-Chamber, "So tender the court is of
upholding the honor of the sentence, as they will punish them who
speak against it with great severity."[87]
[Footnote 87: In 2 Collectanea Juridica, 228.]
6. In 1680 Benjamin Harris, a bookseller, sold a work called "An
Appeal from the country to the city for the Preservation of his
Majesty's Person, Liberty, Property, and the Protestant Religion." He
was brought to trial for a libel, before Recorder Jeffreys and Chief
Justice Scroggs who instructed the jury they were only to inquire _if
Harris sold the book_, and if so, find him "guilty." It was for the
court to determine what was a libel. He was fined five hundred pounds
and placed in the pillory; the Chief Justice wished that he might be
also whipped.[88]
[Footnote 88: 7 St. Tr. 925.]
7. The same year Henry Carr was brought to trial. He published a
periodical--"the Weekly Packet of advice from Rome, or the History of
Popery"--hostile to Romanism. Before the case came to court, Scroggs
prohibited the publication on his own authority. Mr. Carr was
prosecuted for a libel before the same authority, and of course found
guilty. The character of that court also was judgment against natural
right. Jane Curtis and other women were in like manner punished for
speaking or publishing words against the same "great judge."[89] And
it was held to be a "misdemeanor" to publish a book reflecting on the
justice of the nation--the truer the book the worse the libel! It was
"obstructing an officer," and of course it was a greater offence to
"obstruct" him with Justice and Truth than with wrong and lies. The
greater the justice of the act the more dangerous the "crime!" If the
language did not hit any one person it was "malice against all
mankind."
[Footnote 89: 7 St. Tr. 1111, 959; 4 Parl. Hist. 1274.]
8. In 1684 Sir Samuel Barnardiston was brought to trial charged with a
"High Misdemeanor." He had written three private letters to be
sent--it was alleged--by post to his friend, also a private man. The
letters do not appear designed for any further publication or use;
they related to matters of news, the events of the day and comments
thereon, and spoke in praise of Algernon Sidney and Lord Russell who
were so wickedly beheaded about the time the letters were written. It
would require a microscopic eye to detect any evil lurking there.
Jeffreys presided at the trial, and told the jury:--
"The letters are _factious, seditious, and malicious
letters, and as base as the worst of mankind could ever have
invented_." "And if he be guilty of it--the greater the man
is the greater the crime, and the more understanding he has,
the more malicious he seems to be; for your little ordinary
sort of people, that are of common mean understanding, they
may be wheedled and drawn in, and surprised into such
things; but men of a public figure and of some value in the
world that have been taken to be men of the greatest
interest and reputation in a party, it cannot be thought a
hidden surprise upon them; no, it is a work of time and
thought, it is a thing fixed in his very nature, and it
_shows so much venom as would make one think the whole mass
of his blood were corrupt_." "Here is the matter he is now
accused of, and here is in it malice against the king,
malice against the government, malice against both Church
and State, malice against any man that bears any share in
the government, indeed malice against all mankind that are
not of the same persuasion with these bloody miscreants."
"Here is ... the sainting of two horrid conspirators! Here
is the Lord Russell sainted, that blessed martyr; Lord
Russell, that good man, that excellent Protestant, he is
lamented! And here is Mr. Sidney sainted, what an
extraordinary man he was! Yes, surely he was a very good
man--and it is a shame to think that such bloody miscreants
should be sainted and lamented who had any hand in that
horrid murder [the execution of Charles I.] and treason ...
who could confidently bless God for their being engaged in
that good cause (as they call it) which was the rebellion
which brought that blessed martyr to his death. It is high
time for all mankind that have any Christianity, or fear of
Heaven or Hell, to bestir themselves, to rid the nation of
such caterpillars, such monsters of villany as those are!"
Of course the packed jury found him guilty; he was fined £10,000.[90]
[Footnote 90: 7 St. Tr. 1333.]
Gentlemen of the Jury, such judges, with such kings and cabinets, have
repeatedly brought the dearest rights of mankind into imminent peril.
Sad indeed is the condition of a nation where Thought is not free,
where the lips are sewed together, and the press is chained! Yet the
evil which has ruined Spain and made an Asia Minor of Papal Italy,
once threatened England. Nay, Gentlemen of the Jury, it required the
greatest efforts of her noblest sons to vindicate for you and me the
right to print, to speak, to think. Milton's "Speech for the Liberty
of unlicensed Printing" is one monument of the warfare which lasted
from Wicliffe to Thomas Carlyle. But other monuments are the fines and
imprisonment, the exile and the beheading of men and women! Words are
"sedition," "rebellion," "treason;" nay, even now at least in New
England, a true word is a "Misdemeanor," it is "obstructing an
officer." At how great cost has our modern liberty of speech been
purchased! Answer John Lilburne, answer William Prynn, and Selden, and
Eliot, and Hampden, and the other noble men who
----"in the public breach devoted stood,
And for their country's cause were prodigal of blood."
Answer Fox and Bunyan, and Penn and all the host of Baptists,
Puritans, Quakers, martyrs, and confessors--it is by your stripes that
we are healed! Healed! are we healed? Ask the court if it be not a
"misdemeanor" to say so!
A despotic government hates implacably the freedom of the press. In
1680 the Lord Chief Justice of England declared the opinion of the
twelve judges "indeed all subscribe that to _print or publish any
news-books, or pamphlets of news whatsoever, is illegal; that it is a
manifest intent to the breach of the peace_, and they may be proceeded
against by law for an illegal thing." "And that is for a public notice
to all people, and especially printers and booksellers, that _they
ought to print no book or pamphlet of news whatsoever without
authority;" "they shall be punished if they do it without authority_,
though there is nothing reflecting on the government."[91] Judge
Scroggs was right--it was "resisting an officer," at least
"obstructing" him in his wickedness. In England, says Lord Campbell,
the name and family of Scroggs are both extinct. So much the worse for
you and me, Gentlemen. The Scroggses came over to America; they
settled in Massachusetts, they thrive famously in Boston; only the
name is changed.
[Footnote 91: 7 St. Tr. 1127.]
In 1731 Sir Philip Yorke, attorney-general, solemnly declared that an
editor is "_not to publish any thing reflecting on the character and
reputation and administration of his Majesty or his Ministers_;" "if
he breaks that law, or exceeds that liberty of the press he is to _be
punished for it_." Where did he get his law--in the third year of
Edward I., in A.D. 1275! But that statute of the Dark Ages was held
good law in 1731; and it seems to be thought good law in 1855! And the
attorney who affirmed the atrocious principle, soon became Chief
Justice, a "consummate judge," a Peer, Lord Hardwicke, and Lord
Chancellor![92] Lord Mansfield had not a much higher opinion of the
liberty of the press; indeed, in all libel cases, he assumed it was
exclusively the function of the judges to determine whether the words
published contained malicious or seditious matter, the jury were only
to find the fact of publication.[93] Thus the party in power with
their Loughboroughs, their Thurlows, their Jeffreys, their
Scroggs--shall I add also American names--are the exclusive judges as
to what shall be published relating to the party in power--their
Loughboroughs, their Thurlows, their Jeffreys and their Scroggs, or
their analogous American names! It was the free press of
England--Elizabeth invoked it--which drove back the "invincible
Armada;" this which stayed the tide of Papal despotism; this which
dyked the tyranny of Louis XIV. out from Holland. Aye, it was this
which the Stuarts, with their host of attendants, sought to break down
and annihilate for ever;[94] which Thurlow and Mansfield so formidably
attacked, and which now in America--but the American aspect of the
matter must not now be looked in the face.
[Footnote 92: 17 St. Tr. 674; 5 Campbell, 57; Hildreth's Despotism,
199.]
[Footnote 93: 20 St. Tr. 900. But see 28 St. Tr. 595, and 16 Parl.
Hist. 1211.]
[Footnote 94: For the frequency of trials for words spoken in Charles
II.'s reign of terror, see the extracts from Narcissus Luttrel's Brief
Historical Relation, 10 St. Tr. 125.]
* * * * *
But spite of all these impediments in the way of liberty, the voice of
humanity could not be forever silenced. Now and then a virtuous and
high-minded judge appeared in office--like Hale or Holt, Camden or
Erskine. Even in the worst times there were noble men who lifted up
their voices. Let me select two examples from men not famous, but
whose names, borne by other persons, are still familiar to this court.
In 1627 Sir Robert Phillips, member for Somersetshire, in his place in
Parliament, thus spoke against the advance of despotism:[95]--
[Footnote 95: 1 Rushworth, 502.]
"I read of a custom among the old Romans, that once every
year they had a solemn feast for their slaves; at which they
had liberty, without exception, to speak what they would,
thereby to ease their afflicted minds; which being finished,
they severally returned to their former servitude. This may,
with some resemblance and distinction, well set forth our
present state; where now, after the revolution of some time,
and grievous sufferance of many violent oppressions, we
have, as those slaves had, a day of liberty of speech; but
shall not, I trust, be hereafter slaves, for we are free:
yet what new illegal proceedings our estates and persons
have suffered under, my heart yearns to think, my tongue
falters to utter. They have been well represented by divers
worthy gentlemen before me; yet one grievance, and the main
one, as I conceive, hath not been touched, which is our
Religion: religion, Mr. Speaker, made vendible by
commission, and men, for pecuniary annual rates, dispensed
withal; Judgments of law against our liberty there have been
three; each latter stepping forwarder than the former, upon
the Rights of the Subject; aiming, in the end, to tread and
trample underfoot our law, and that even in the form of
law."
"The first was the Judgment of the Postnati, (the Scots,)
... The second was the Judgment upon Impositions, in the
Exchequer Court by the barons; which hath been the source
and fountain of many bitter waters of affliction unto our
merchants." "The third was that fatal late Judgment against
the Liberty of the Subject imprisoned by the king, argued
and pronounced but by one judge alone." "I can live,
although another who has no right be put to live with me;
nay, I can live although I pay excises and impositions more
than I do; but to have my liberty, which is the soul of my
life, taken from me by power; and to have my body pent up in
a gaol, without remedy by law, and to be so adjudged: O
improvident ancestors! O unwise forefathers! To be so
curious in providing for the quiet possession of our lands,
and the liberties of Parliament; and to neglect our persons
and bodies, and to let them lie in prison, and that _durante
bene placito_, remediless! If this be law, why do we talk of
liberties? Why do we trouble ourselves with a dispute about
law, franchises, property of goods, and the like? What may
any man call his own, if not the Liberty of his Person? I am
weary of treading these ways."[96]
[Footnote 96: 2 Parl. Hist. 232. See also 441, 471. He had been thrown
into the Tower by James in 1624. Cabbala (3d Ed.), 311.]
In 1641 Sir Philip Parker, Knight of the Shire for Suffolk, in his
place in Parliament, thus spoke:--
"The cries of the people have come up to me; the voice of
the whole nation tingles in my ears." "'Tis true, I confess,
we have tormented ourselves with daily troubles and
vexations, and have been very solicitous for the welfare of
the Commonwealth; but what have we performed, what have we
perfected? Mr. Speaker, excuse my zeal in this case; for my
mouth cannot imprison what my mind intends to let out;
neither can my tongue conceal what my heart desires to
promulge. Behold the Archbishop [Laud], that great
incendiary of this kingdom, lies now like a firebrand raked
up in the embers; but if ever he chance to blaze again I am
afraid that what heretofore he had but in a spark, he will
burn down to the ground in a full flame. Wherefore let us
begin, for the kingdom is pregnant with expectation on this
point. I confess there are many more delinquents, for the
judges and other knights walk _in querpo_; but they are only
thunderbolts forged in Canterbury's fire."[97]
[Footnote 97: Parl. Hist. 867.]
Six of the wicked judges were soon brought to trial.[98]
[Footnote 98: 1 Rushworth, 502.]
* * * * *
This same threefold experiment of despotism which was attempted in
England, was tried also in America by the same tyrannical hand. Here,
also, the encroaching power put creatures of its arbitrary will in
judicial offices; they then by perverting the laws, punished the
patriots, and next proceeded to destroy the best institutions of the
land itself. Here I shall take but a few examples, selected from the
colonial history of our own New England.
After capturing the great fortress of freedom at home, by taking away
the charter of London, Charles proceeded to destroy the freedom of the
colonies; the Charter of Massachusetts was wrested from us on a _quo
warranto_ in 1683,[99] and the colony lay at the feet of the monarch.
In privy council it had already been determined that our rights should
be swept into the hands of some greedy official from the court.[100]
In 1686 James II. sent Sir Edmund Andros to New England as a
"Commissioner" to destroy the liberty of the people. He came to Boston
in the "Kingfisher, a fifty gun ship," and brought two companies of
British soldiers, the first ever stationed in this town to dragoon the
people into submission to an unrighteous law. Edward Randolph, the
most determined enemy of the colony, greedily caressing the despotic
hands that fed him, was his chief coadjutor and assistant, his
secretary, in that wicked work. Andros was authorized to appoint his
own council, and with their consent enact laws, levy taxes, to
organize and command the militia. He was to enforce the hateful "Acts
of Trade." He appointed a council to suit the purpose of his royal
master, to whom no opposition was allowed. Dudley, the new Chief
Justice, told the people who appealed to Magna Charta, "they must not
think the privileges of Englishmen would follow them to the end of the
world." Episcopacy was introduced; no marriages were to "be allowed
lawful but such as were made by the minister of the Church of
England." Accordingly, all must come to Boston to be married, for
there was no Episcopal minister out of its limits. It was proposed
that the Puritan Churches should pay the Episcopal salary, and the
Congregational worship be prohibited. He threatened to punish any man
"who gave two pence" toward the support of a Non-conformist minister.
All fees to officers of the new government were made exorbitantly
great. Only one Probate office was allowed in the Province, that was
in Boston; and one of the creatures of despotic power was,
prophetically, put in it. Andros altered the old form of oaths, and
made the process of the courts to suit himself.
[Footnote 99: See the steps of the process in 1 Hutchinson, (Salem,
1795,) 297; 8 St. Tr. 1068, note.]
[Footnote 100: Barillon to Louis XIV. in Fox's Appendix, p. vii., _et
seq._ In 1685 Halifax, who had been friendly to the rights of the
colonies, was dismissed from his office; Sunderland, their enemy, had
a pension from Louis XIV. of £5,000 or £6,000 a year; p. cxxvii.,
cxxx. _et seq._, cxliii., cxlviii. Not the last instance of a high
functionary pensioned by a foreign hand!]
He sought to wrest the charters from the Colonies; that of Rhode
Island fell into his hands; Connecticut escaped by a "miracle:"
"The Charter-Oak--it was the tree
That saved our sacred Liberty."
The Charter government of Plymouth was suspended. Massachusetts was
put under arbitrary despotism. Towns were forbidden to meet, except
for the choice of officers; there must be no deliberation; "discussion
must be suppressed." He was to levy all the taxes; he assessed a
penny in the pound in all the towns. Rev. John Wise, one of the
ministers of Ipswich, advised the people to resist the tax.
"Democracy," said he, "is Christ's government in Church and State; we
have a good God and a good king; we shall do well to stand to our
privileges." One of the Council said, "_You have no privileges left
you, but not to be sold as slaves._" Even that was not likely to last
long. The town of Ipswich refused to pay the tax, because invalid; the
governor having no authority to tax the people: "they will petition
the King for liberty of an assembly before they make any rates." The
minister and five others were arrested; they had "obstructed an
officer." The Rev. Mr. Wise was guiltiest of all; he did it with a
word, an idea. They were brought to Boston, and thrown into jail, "for
contempt and high misdemeanors." They claimed the _habeas corpus_;
Chief Justice Dudley refused it, on the ground that it did not extend
to America! They were tried before a packed jury, and such a court as
James II. was delighted to honor. The patriots plead the laws of
England and Magna Charta. It was all in vain. "I am glad," said the
judge to his packed jury, "there be so many worthy gentlemen of the
jury, so capable to do the king service; and we expect a good verdict
from you, seeing the matter hath been so sufficiently proved against
the _criminals_." The jury of course found them guilty. They were
fined from £15 to £50 a piece. The whole cost to the six was over
£400. "It is not for his majesty's interest that you should thrive,"
said one of those petty tyrants,--a tide-water of despotism.[101]
[Footnote 101: 1 Hutch. 316; 2 Hildreth, Hist. 108; 2 Bancroft, 425;
Washburn, Judicial Hist. of Mass. 105; Drake's Boston, ch. L.]
Andros denied the colonial title to lands, claiming that as the
charter was declared void, all the lands held under its authority
escheated to the crown,--"The calf died in the cow's belly." A deed of
purchase from the Indians was "worth no more than the scratch of a
bear's paw." "The men of Massachusetts did much quote Lord Coke" for
their titles: but Rev. John Higginson, minister of the first church in
Salem, the son of the first minister ever ordained in New
England,--and ancestor of this noble-hearted man [Rev. T.W. Higginson]
who is now also indicted for a "misdemeanor,"--found other laws for
their claim, and insisted on the citizens' just and natural right to
the lands they had reclaimed from the wilderness.[102] Andros said,
"You are either subjects, or else you are rebels;" and in either case,
their lands would be forfeit.
[Footnote 102: 1 Felt's Salem, 24; 2 Ib. 542; Felt's Ipswich, 123, _et
seq._; Gage's Rowley, 157, _et seq._; Sullivan's Land Titles, 54.]
Andros hated freedom of speech and of thought. He was to allow no
unlicensed printing. Randolph was appointed censor of the press, and
ordered the printer to publish nothing without his approbation, nor
"any almanac whatever." There must be but one town meeting in a year,
and no "deliberation" at that; no "agitation," no discussion of
grievances. There must be no preaching on the acts of the government.
Rev. Dr. Increase Mather, one of the ablest men in the Colonies, was
the special object of his hate. Randolph advised the authorities to
forbid any non-conformist minister to land in New England without the
special consent of the governor, and that he should restrain such as
he saw fit to silence. The advice was not lost on such willing ears.
John Gold, of Topsfield, was tried for "treasonable words," and fined
fifty pounds--a great deal more at Topsfield in 1687, than "three
hundred dollars" is now in Boston. Rev. Increase Mather had opposed
the surrender of the Charter of Massachusetts, and published his
reasons; but with such prudence, for he was careful how he "evinced an
express liking" for justice, that it was difficult to take hold of
him. So the friends of government forged a letter with his name, to a
person in Amsterdam. Randolph showed the letter to persons whom he
wished to prejudice against the alleged writer. When Mr. Mather
learned the facts, he wrote a letter to a friend, clearing himself,
and charging the forgery on Randolph or his brother. Randolph brought
his action for a libel, claiming £500 damages. But it came to
nothing--then. Now times are changed!
Col. Pynchon, of Springfield, one of the officers in this new state of
things, was empowered to bind over all persons suspected of riots,
"outrageous or abusive _reflecting words and speeches against the
government_." "The spirit of justice was banished from the courts that
bore the name."[103]
[Footnote 103: Hutch. 327; Washburn, ibid.]
But notwithstanding the attempt to stifle speech, a great tall
minister at Rowley, called Andros "a wicked man!" For that offence he
was seized and put in prison! He, also, like Higginson, is represented
in this court by one of his own name; and the same inextinguishable
religious fire which burned in the bosom of Robert in Old England, and
from Samuel in New England flashed into the commissioned face of
Andros, now lightens at this bench from the eyes of WENDELL PHILLIPS,
who confers new glory on his much-honored ancestor.
* * * * *
Gentlemen of the Jury, you know how this wickedness was brought to an
end. If the courts would not decree Justice, there was a rougher way
of reaching it, and having it done. Civil war, revolution by violence,
came in place of the simple forms of equity, which the judges had set
at nought. William of Orange, a most valiant son-in-law, drove the
foul tyrant of Old England from that Island, where the Stuarts have
ever since been only "Pretenders;" and on the 19th of April, 1689, the
people of Massachusetts had the tyrant of New England put solemnly in
jail! We were rid of that functionary for ever, and all such
"commissioners" have been held odious in New England ever since the
days of Andros. Eighty-six years later came another 19th of April,
also famous. Well said Secretary Randolph, "Andros has to do with a
perverse people,"--they would not bow to such tyranny in 1689. But he
afterwards became a quite acceptable governor in Virginia,--where, I
doubt not, he has descendants in African bondage at this day.
Catholic James II. sought to establish arbitrary power in America, as
in England, by his prerogative--the Omnipotence of the King; he
failed; the high-handed despotism of the Stuarts went to the ground.
The next attempt at the same thing was by the legislature--the
Omnipotence of Parliament--for a several-headed despotism took the
place of the old, and ruled at home with milder sway. It tried its
hand in America; there were no more requisitions from a king hostile
to the Colonies, but acts of Parliament took their place. After the
French power in North America had given way, the British government
sought to tame down and break in the sturdy son, who had grown up in
the woods so big and rough, as obstinate as his father. Here are three
measures of subjugation, all flowing from the same fountain of
Principle--vicarious government by a feudal superior.
1. All the chief colonial officers were to be appointed by the king,
to hold office during his pleasure, to receive their pay from him.
Such was the tenure of the executive officers who had a veto on all
colonial legislation, and of the judicial officers. Thus the power of
making and administering the laws fell from the people distributed
everywhere, into the hands of the distant government centralized in
the King.
2. A standing army of British soldiers must be kept in the Colonies to
overawe the people, and enforce the laws thus made and administered.
3. A revenue was to be raised from the Colonies themselves--from which
the King would pay his officers and provide for his army that enforced
his laws. The eagle is to feather the arrow which shoots him in mid
heaven.
Thus law was a threefold cord wherewith to bind the strong Puritan.
But his eyes were not put out--not then. Blindness came at a later
day--when he had laid his head in the lap of a not attractive
Delilah. With such judges and governors, backed by a standing army of
hirelings--how soon would her liberty go down, and the Anglo-American
States resemble Spanish America!
In 1760 Francis Bernard was made governor of Massachusetts, and thus
officially put at the head of the Judiciary, a man wholly devoted to
the Crown, expecting to be made a baronet! He did not wish an annual
election of councillors, but wanted the sovereign power to enforce its
decrees by violent measures. Thus Thomas Hutchinson was made Chief
Justice in 1760, and afterwards Lieutenant-Governor,--continually
hostile to the constitution of his native land. Thus Andrew
Oliver--"Governor Oliver," "hungry for office and power," was
appointed Secretary, Commissioner of Stamps and Lieutenant-Governor;
and Peter Oliver--"Judge Oliver"--though not bred a lawyer, was made
Chief Justice, the man who refused to receive his salary from the
treasury of Massachusetts, preferring the money of the crown which
owned him. In the revolutionary times of the _five Judges of
Massachusetts four were Tories_!
Accordingly, when the Stamp Act was passed--22d March, 1765--there
were Judicial officers in the Colonies ready to declare it
"constitutional;" executive magistrates ready to carry out any
measures intrusted to them. "I will cram the stamps down their throat
with the end of my sword," said an officer at New York. Governor
Bernard wanted soldiers sent to Boston to enforce submission; so did
Hutchinson and "Governor Oliver." The Governor of New York thought,
"if _Judges be sent from England_, with an able attorney-general and
solicitor-general to _make examples of some very few_, the Colony will
remain quiet."[104]
[Footnote 104: 5 Bancroft, 358.]
In 1768 John Hancock was arrested at Boston--for a "misdemeanor;" I
suppose, "obstructing an officer," or some such offence.[105] The
government long sought to procure indictments against James Otis--who
was so busy in fencing out despotism--Samuel Adams, and several other
leading friends of the colony. But I suppose the judge did not succeed
in getting his brother-in-law put on the grand-jury, and so the scheme
fell through. No indictment for that "misdemeanor" then. Boston had
the right men to do any thing for the crown, but they did not contrive
to get upon the grand-jury.
[Footnote 105: 6 Bancroft, 213.]
The King, it was George III., in his parliament, spoke of the Patriots
of Boston, as "those turbulent and seditious persons." In the House of
Commons, Stanley called Boston an "insolent town;" its inhabitants
"must be treated as aliens;" its "charter and laws must be so changed
as to give the King the appointment of the Council, and to the
_sheriffs the sole power of returning jurors_;" then the Stamp Act
could be carried out, and a revenue raised without the consent of the
people. The plan was admirably laid; an excellent counsel! Suppose, as
a pure conjecture, an hypothesis of illustration--that there were in
Boston a fugitive slave bill court, eager to kidnap men and so gain
further advancement from the slave power, which alone distributes the
federal offices; suppose the court should appoint its creatures,
relatives, nay, its uterine brother--its brother in birth--as fugitive
slave bill commissioners to hunt men; and then should get its
matrimonial brother--its brother-in-law--on the grand-jury to indict
all who resisted the fugitive slave bill! You see, gentlemen, what an
admirable opportunity there would be to accomplish most manifold and
atrocious wickedness. This supposed case exactly describes what was
contemplated by the British authorities in the last century! Only,
Gentlemen, it was so unlucky as not to succeed; nay, Gentlemen, as to
fail--then! Such accidents will happen in the best of histories!
It was moved in Parliament to address the king "to bring to condign
punishment" such men as Otis and Adams and Hancock. Chief Justice
Hutchinson declared Samuel Adams "_the greatest incendiary in the
king's dominions_." Hutchinson was right for once. Samuel Adams lit a
fire which will burn on Boston Common on the Fourth day of next July,
Gentlemen, and on many other commons besides Boston. Aye, in the heart
of many million men--and keep on burning long after Hutchinson ceases
to be remembered with hate, and Adams with love. "The greatest
incendiary!" so he was. Hutchinson also thought there must be "an
Abridgment of what are called English Liberties," doubtless the
liberty of speaking in Faneuil Hall, and other meeting-houses was one
"of what are called English Liberties" that needed speedy abridgment.
He wished the law of treason to be extended so that it might catch all
the patriots of Boston by the neck. He thought it treasonable to deny
the authority of Parliament.[106] Men suspected of "misdemeanors" were
to be sent to England for trial! What a "trial" it would have
been--Hancock and Adams in Westminster Hall with a jury packed by the
government; Thurlow acting as Attorney-General, and another Thurlow
growling on the bench and expecting further office as pay for fresh
injustice! Truly there would have been an "abridgment of English
Liberties." Gentlemen of the Jury, Mr. Phillips and Mr. Higginson in
this case are charged with "obstructing an officer." Suppose they were
sent to South Carolina to be tried by a jury of Slaveholders, or
still worse, without change of place, to be tried by a court deadly
hostile to freedom,--wresting law and perverting justice and
"enlarging testimony," personally inimical to these gentlemen; suppose
that the Slave-hunter whose "process" was alleged to be resisted, was
kinsman to the court, and the judge had a near relation put on the
jury--what opportunity would there be for justice; what expectation of
it? Gentlemen of the Jury, that is the state of things which the
despots of England wanted to bring about by sending Hancock and Adams
over seas for trial! Bernard, Oliver, and Hutchinson were busy in
getting evidence against the Patriots of New England, especially
against Adams. Affidavits were sent out to England to prove that he
was a fit subject to be transported for "trial" there. And an old
statute was found from the enlightened reign of Henry VIII.
authorizing that mode of trial in case of such "misdemeanor."
Commissary Chew wished that two thirds of the lawyers and printers
were shipped off to Africa "for at least seven years." Edes and Gill,
patriotic printers in Boston, and "all the authors of numberless
treasonable and seditious writings," were to go with them.[107] They
were all guilty, very guilty! Gentlemen of the Jury, they committed
"misdemeanors," they "obstructed officers," they resisted the process
of despotism! But alas--
"The Dog it was that died."
[Footnote 106: 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, _et
al._]
[Footnote 107: 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, _et
al._]
Edes and Gill never saw Africa; the patriotic lawyers and printers
made no reluctant voyage to England.
"The Dog it was that died."
Bernard, Hutchinson, Oliver, and their coadjutors went over the seas
for punishment after being tried at home by a Law older than the
statute of Henry VIII.; a law not yet repealed, Gentlemen, the Higher
Law which God wrote ineffaceably in the hearts of mankind; and
indignant America pronounced sentence--Tories, Traitors! Commissary
Chew learned a lesson at Saratoga in 1777. And the Franklins, the
Mayhews, the Hancocks, the Adamses, they also were tried at home, and
not found wanting; and the verdict! Gentlemen of the Jury, you know
what verdict America has pronounced on these men and their kinsfolk!
There is only one spot in the United States where the Hutchinsons, the
Olivers, the Bernards are honored,--that is where the Adamses, the
Hancocks, the Mayhews, and the Franklins, with the principles of
justice they gave their lives to, are held in contempt! Where is the
one spot, that speck of foreign dirt in the clean American garden? It
is where the Democratic Herod and the Whig Pilate are made friends
that they may crucify the Son of Man, the Desire of all nations, the
Spirit of Humanity--it is the court of the Fugitive Slave Bill judges,
the Gabbatha of the Kidnappers. Look there!
In 1765 it was too late to conquer America. What Andros and Randolph
could accomplish in 1686 with their sixty soldiers, could not be done
in 1768 with all the red coats Britain could send out: nor in 1778
with all the Hessians she could purchase. The 19th of April, 1689,
foretold another 19th of April--as that many to-morrows after to-day!
In the House of Lords Camden and Pitt thought Parliament not
omnipotent.[108] Samuel Adams declared "Acts of Parliament against
natural equity are void;" prayed that "Boston might become a Christian
Sparta," and looked to the Law of an Omnipotence somewhat higher than
a king or a court. He not only had Justice, but also the People on his
side. What came of that last attempt of the last king of New England
to establish a despotism here? The same, Gentlemen, which will
ultimately come of all such attempts.
[Footnote 108: 16 Parl. Hist. 168, 195, 658.]
* * * * *
Gentlemen of the Jury, there is one great obstacle which despotism has
found in Anglo-Saxon lands, steadily opposing its steady attempts to
destroy the liberties of the People. It is easy for the controlling
power, which represents the Centripetal Tendency of the Nation, to
place its corrupt and servile creatures in judicial offices, vested
with power to fine, to imprison, and to kill; it is then easy for them
to determine on the destruction of all such friends of Justice and
Humanity as represent the Centrifugal Tendency of the Nation; and with
such judicial instruments it is not difficult to wrest and pervert law
in order to crush the Patriots, and construct a word into "Treason,"
or "evincing express approbation" into a "Misdemeanor," "resisting an
officer." And if the final decision rested with such a court, it would
be exceeding easy to make way with any man whom the judge's private
malignity or the public vengeance of his master, wished to smite and
kill. But in the Anglo-Saxon people there is one institution, old,
venerable, and well-beloved, which has stood for two thousand years,
the great Fortress of Freedom. Thank God, Gentlemen, it still stands.
Neither British Kings nor American Slave-drivers have yet brought it
to the ground. Of this I must now say a word.
III. OF THE GREAT SAFEGUARD WHICH HAS BEEN FOUND SERVICEABLE IN
PROTECTING DEMOCRATIC INSTITUTIONS AND THE RIGHTS OF MAN THEY ARE
DESIGNED TO DEFEND.--OF THE TRIAL BY JURY.
This is an invaluable protection against two classes of foes to the
welfare of mankind.
1. Against such as would commit offences upon the property or persons
of men, without law and contrary to the form of law,--against common
criminals of all denominations. Against such it is a sword--to resist
and punish.
2. Against such as would commit offences upon the property or persons
of men, with the form of law and by means of its machinery,--against
unjust legislators, corrupt Judges, and wicked magistrates; against
such it is a shield defending the public head.
In all the States of Anglo-Saxon origin there are two great popular
institutions--Democratic Legislation and Democratic Administration of
Law.
In the process of its historical development the first has come to the
representative form of democratic legislation,--popular law-making by
a body of sworn delegates met in an Assembly, local or federal,
subject to a constitution, written or only traditional, which is the
People's Power of Attorney, authorizing them to do certain matters and
things pertinent to law-making. These are a Jury of general
Law-makers.
In its process of historical development, the second has also come to
a representative form, that of democratic application of law, popular
law-applying, by a body of sworn delegates, that is a Court, subject
to a constitution and laws, written or only traditional, which are the
People's Power of Attorney authorizing them to do certain matters and
things pertinent to law-applying. These are a Jury of special
Law-appliers.
Neither of them as yet has reached its perfect and ultimate form; both
are still in a state of transition. These two are the most valuable
institutional safeguards against unorganized selfishness in the
community,--against thieves, robbers, murderers, traitors, and the
like; against the organized selfishness which gets into places of
delegated power, and would misuse the Form of law so as to prevent the
People from attaining the Purpose of law.
There is also a body of men intermediate between the two,--the
Law-Explainers, the Judges. Speaking theoretically they are not
ultimately either Law-makers or Law-appliers, yet practically, in
their legitimate function, they certainly have much to do with both
the making and applying of laws. For it is their business, not only
to preside at all trials, and determine many subordinate questions of
mere form to expedite the process, but also from the whole mass of
laws, oral or written, statutes and customs, to select such particular
laws as they think require special attention,--this is like the work
of law-makers; and also, in their charges to the grand and petty
Juries, to suggest the execution thereof in such cases as the times
may bring,--this like the work of the law-appliers.
The good judge continually modifies the laws of his country to the
advantage of mankind. He leaves bad statutes, which aim at or would
promote injustice, to sleep till themselves become obsolete, or
parries their insidious thrusts at humanity; he selects good statutes
which enact natural Justice into positive law; and mixes his own fresh
instincts of humanity with the traditional institutions of the age.
All this his official function requires of him--for his oath to keep
and administer the laws binds him to look to the Purpose of Law--which
is the Eternal Justice of God,--as well as to each special statute.
Besides, after the Jury declares a man guilty, the Judge has the power
to fix the quantity and sometimes the quality of his punishment. And
the discretion of a great noble man will advance humanity.
In this way a good Judge may do a great service to mankind, and
correct the mistakes, or repel the injustice of the ultimate makers
and appliers of law, and supply their defects. Thus in England those
eminent Judges, Hale, Somers, Hobart, Holt, Camden, Mansfield, and
Brougham, have done large service to mankind. Each had his personal
and official faults, some of them great and glaring faults of both
kinds, but each in his way helped enact natural Justice into positive
law, and so to promote the only legitimate Purpose of human
legislation, securing Natural Rights to all men. To such Judges
mankind owes a quite considerable debt.
But in America the Judge has an additional function; he is to
determine the Constitutionality of a law. For while the British King
and Parliament claim to be legislatively omnipotent, supreme, the
Ultimate human source of law, the Living Constitution of the realm,
and therefore themselves the only Norm of law,--howsoever ill-founded
the claim may be,--in America it is the People, not their elected
servants, who are the Ultimate human source of law, the Supreme
Legislative power. Accordingly the People have prepared a written
Constitution, a Power of Attorney authorizing their servants to do
certain matters and things relating to the government of the nation.
This constitution is the human Norm of law for all the servants of the
people. So in administering law the Judge is to ask, Is the statute
constitutional? does it square with the Norm of law which the People
have laid down; or have the legislative servants exceeded their Power
of Attorney, and done matters and things which they were not empowered
to do? In deciding this question, the Judge is to consider not merely
the Provisional Means which the Constitution designates, but also the
Ultimate Purpose thereof, the Justice and Liberty which, as its
preamble declares, it expressly aims at, and which are also the ideal
End of all sound legislation.
There is no country in the world where a great man has so noble a
place and opportunity to serve mankind as in America.
But a wicked Judge, Gentlemen, may do great harm to mankind, as I have
already most abundantly shown. For we have inherited a great mass of
laws,--customary or statutory; the legislature repeals, modifies, or
adds to them; the Judge is to expound them, and suggest their
application to each special case. The Jury is to apply or refuse to
apply the Judge's "law." In all old countries, some of these laws have
come from a barbarous, perhaps even from a savage period; some are the
work of tyrants who wrought cruelly for their own advantage, not
justly, or for the good of mankind; some have been made in haste and
heat, the legislature intending to do an unjust thing. Now an unjust
Judge has great power to select wicked statutes, customs, or
decisions; and in no country has he more power for evil than in the
federal courts of the United States. For as in England, when the
King-power makes a wicked law, the Judge, who is himself made by that
same power, may declare it just, and execute the heinous thing; so in
America, when the Slave power enacts a wicked statute, contrary to the
purpose of the constitution and to the natural justice of God, the
Judge, who is the creature of that same power, may declare it
constitutional and binding on all the People who made the constitution
as their Power of Attorney. Thus all the value of the constitution to
check despotism is destroyed, and the Fortress of Freedom is betrayed
into the hands of the enemies of liberty!
But barbarous laws must not be applied in a civilized age; nor unjust
laws enforced by righteous men. While left unrepealed, a fair and
conscientious Jury will never do injustice, though a particular
statute or custom demand it, and a wicked Judge insist upon the wrong;
for they feel the moral instinct of human nature, and look not merely
to the letter of a particular enactment, but also to the spirit and
general purpose of law itself, which is justice between man and man.
The wicked Judge, looking only to the power which raised him to his
place, and may lift him higher still,--not to that other Hand which is
over all,--or consulting his own meanness of nature, selects the
wicked laws, and makes a wicked application thereof. Thus in America,
under plea of serving the people, he can work most hideous wrong.
Besides, the Judges are lawyers, with the technical training of
lawyers, with the disposition of character which comes from their
special training and profession, and which marks the manners, the
language and looks of a lawyer. They have the excellence of the
lawyer, and also his defects. Commonly they are learned in their
profession, acute and sharp, circumspect, cautious, skilful in making
nice technical distinctions, and strongly disposed to adhere to
historical precedents on the side of arbitrary power, rather than to
obey the instinctive promptings of the moral sense in their own
consciousness. Nay, it seems sometimes as if the moral sense became
extinct, and the legal letter took the place of the spirit of Justice
which gives life to the People. So they look to the special statute,
its technical expositions and applications, but not to Justice, the
ultimate Purpose of human law; they preserve the means and miss the
end, put up the bars in the nicest fashion, and let the cattle perish
in their pen. Like the nurse in the fable, they pour out the baby, and
carefully cherish the wooden bath-tub! The Letter of the statute is
the Idol of the Judicial Den, whereunto the worshipper offers
sacrifices of human blood. The late Chief Justice Parker, one of the
most humane and estimable men, told the Jury they _had nothing to do
with the harshness of the statute_! but must execute a law, however
cruel and unjust, because somebody had made it a law! How often Juries
refuse to obey the statute and by its means to do a manifest
injustice; but how rarely does a Judge turn off from the wickedness of
the statute to do Justice, the great Purpose of human law and human
life! Gentlemen, I once knew a democratic judge--a man with a noble
mind, and a woman's nicer sense of right--who told the Jury, "Such is
the law, such the decisions; such would be its application to this
particular case. But it is unjust;--it would do a manifest and
outrageous wrong if thus applied. You as Jurors are to do Justice by
the law, not injustice. _You will bring in a verdict according to your
conscience._" They did so. Gentlemen, I should not dare tell you that
Judge's name. It would greatly injure his reputation. God knows
it--for there is a Higher Law.
When the New York Convention assembled in 1846 to revise the
constitution of that State, some powerful men therein felt the evil of
having the Court of last Appeal consist wholly of lawyers. Mr. Ruggles
thought the judges who reëxamine the decisions and pronounce the final
judgment in disputed cases, and determine the constitutionality of
laws, should be men who are "brought into direct contact with the
people and their business." He wished that of the eight judges of this
appellate Court, four should be Justices of the Supreme Court, and
four more should be elected by the people on a general ballot, thus
securing a popular element in that highest Court. By this popular
element, representing the instinctive Justice of Humanity, he hoped to
correct that evil tendency of professional men which leads them away
"from the just conclusions of natural reason into the track of
technical rules inapplicable to the circumstances of the case, and at
variance with the nature and principles of our social and political
institutions."[109] "Such judges," said another lawyer, "would retain
more of the great general principles of moral justice, ... the
impulses of natural equity, such as ... would knock off the rough
corners of the common law and loosen the fetters of artificial and
technical equity."[110]
[Footnote 109: Debates in New York Convention, 371, _et al._]
[Footnote 110: Jordan's Speech, _ibid._, 447, _et al._ See also Mr.
Stow's Remarks, 473, and Mr. Stephens', 474, _et al._ Yet all these
four speakers were lawyers.]
Commonly in America, as in England, for judges the Federal Government
appoints lawyers who have done some party service, or are willing to
execute the designs of the great ruling Power, the Slaveholders,
regardless alike of the interests of the People and the protestations
of the Conscience of Mankind.[111] You know how Hardwicke and Thurlow
got their office in England, how they filled it, and what additional
recompense followed each added wickedness. Need I mention the name of
Americans with a similar history? Gentlemen, I pass it by for the
present.
[Footnote 111: Hildreth's Despotism in America (1854), 263, _et al._]
Still further, these judges thus appointed become familiar with fraud,
violence, cruelty, selfishness,--refined or brutal,--which comes
before them; they study the technicalities of the statutes, balance
the scruples of advocates; they lose their fresh intuitions of
justice, becoming more and more legal, less and less human, less
natural and more technical; their eye is microscopic in its niceness
of discrimination, microscopic also in its narrowness of range. They
forget the universality of justice,--the End which laws should aim at;
they direct their lynx-eyed attention to the speciality of the
statutes which is only the Means, of no value save as conducing to
that end. Their understanding is sharp as a mole's eye for the minute
distinctions of the technicalities of their craft; but, as
short-sighted as the mole, they cannot look at justice. So they come
to acknowledge no obligation but the legal, and know no law except
what is written in Black Letter on parchment, printed in
statute-books, reported in decisions; the Law written by God on the
soul of man they know not, only the statute and decision bound in pale
sheepskin. In the logic of legal deduction--technical inference--they
forget the intuition of conscience: not What is right? but What is
law? is the question, and they pay the same deference to a wicked
statute as a just one. So the true Mussulman values the absurdities
of the Koran as much as its noblest wisdom and tenderest humanity.
Such a man so appointed, so disciplined, will administer the law
fairly enough in civil cases between party and party, where he has no
special interest to give him a bias--for he cares not whether John Doe
or Richard Roe gain the parcel of ground in litigation before him. But
in criminal cases he leans to severity, not mercy; he suspects the
People; he reverences the government. In political trials he never
forgets the hand that feeds him,--Charles Stuart, George Guelph, or
the Slave Power of America.
These things being so, in such trials you see the exceeding value of
the jury, who are not Office-holders, under obligation to the hand
that feeds them; not Office-seekers, willing to prostitute their
faculties to the service of some overmastering lust; not lawyers
wonted to nice technicalities; not members of a class, with its
special discipline and peculiar prejudices; but men with their moral
instincts normally active, and unsophisticated humanity in their
hearts. Hence the great value of the jury in criminal trials.
Gentlemen, you are the jurors in this case, to decide between me and
the government. Between the government and ME! no, Gentlemen, between
the Fugitive Slave Bill and Humanity. You know the Function of the
court--the manner of the Judges' appointment--the services they are
expected to render in cases like this, the services they have already
rendered.
Let me speak of the Function of the Jury. To do that, I must say a few
words of its Historical Development. I must make it very brief and
sketchy. Here I shall point out six several steps in the successive
development of popular Law-making and Law-applying.
* * * * *
1. In the barbarous periods of the Teutonic Family,[112] it seems the
"whole People" came together at certain regular seasons to transact
the business of the nation. There was also a meeting of the
inhabitants of each district or neighborhood at stated times,--a
"regular meeting;" and sometimes a special meeting to provide for some
emergency--a "called meeting." If one man had wronged another the
matter was inquired into at those popular meetings. One man
presided--chosen for the occasion. In the early age it appears he was
a priest, afterwards a noble, or some distinguished man, selected on
the spot. The whole people investigated the matter, made the
law--often an _ex post facto_ law,--applied it to the special case,
and on the spot administered the punishment--if corporeal, or decreed
the recompense--if pecuniary. The majority carried the day. Thus at
first the Body of People present on the occasion were the law-makers,
the law-appliers, and law-executors. Each law was special--designed
for the particular case in hand, retrospective for vengeance more than
prospective for future welfare.
[Footnote 112: By this term I mean all the nations with language akin
to the German.]
2. Then in process of time, there came to be a body of laws--fixed and
understood by the People. Partly, these came from the customs of the
People, and represented past life already lived; but partly, also,
from the decrees of the recognized authorities--theocratic, monarchic,
aristocratic, democratic--representing the desire for a better life, a
rule of conduct for the future. Then at their meetings, to punish an
offender the people did not always make a new law, they simply used
what they found already made. They inquired into the fact, the deed
done, the law, and applied the general law to the special fact, made
their decree and executed it. Thus extemporaneous Making of law for
the particular case, gradually passed away, and was succeeded by the
extemporaneous Declaration of the law previously made, and its
Application to the matter in hand.
3. By and by it was found inconvenient for a multitude to assemble and
make the laws, so a body of select men took a more special charge of
that function. Sometimes a chief, or king, usurped this for himself;
or men were chosen by the people, and took an oath for the faithful
discharge of their trust. Thus came popular law-making by sworn
delegates, representatives of the people, who had a certain special
power of attorney, authorizing them to make laws. These might be
Priests--as at the beginning; or Nobles of priestly stock, as at the
next stage; or Military Chiefs--as in all times of violence; or
powerful Private men,--summoned from the nation, of their own accord
undertaking the task, or chosen by the various neighborhoods,--the
whole process seems to have been irregular and uncertain, as indeed it
must be amongst rude people.
So at that time there were two sources of law-making.
(1.) The unorganized People--the primary source, whose unconscious
life flows in certain channels and establishes certain customs, rules
of conduct, obeyed before they are decreed, without any formal
enactment. These were laws _de facto_.
(2.) The organized Delegates--priestly, kingly, nobilitary, or
warlike--the secondary source. These made statute laws. As this was a
self-conscious and organized body, having an object distinctly set
before its mind and devising means for its purposes, it easily
appropriated to itself the chief part of the business of law-making.
Statute laws became more and more numerous and important; they were
the principal--the customs were only subsidiary, laws _de Jure_,
enacted before they are obeyed by the People. Still new customs
continued to flow from the primitive source of legislation, the
People, and of course took new forms to suit the conditions of
national life.
4. Still the people came together to apply the laws--customary or
enacted,--to the special cases which occurred. There were fixed
periods when they assembled without notice given,--"regular law-days;"
and if an emergency occurred, they were summoned on "extraordinary
law-days." Here wrongs between party and party, and offences against
the public, were set right by the "Country," the "Body of the county,"
that is, by the bulk of the population. The majority carried the day.
5. At length it was found inconvenient for so large a body to
investigate each particular case, or to determine what cases should be
presented for investigation.
(1.) So this preliminary examination was delegated to a smaller body
of men, sworn to discharge the trust faithfully, who made inquiry as
to offences committed, and reported the criminals for trial to the
full meeting, the actual "Body of the country." Here, then, is the
first organized and sworn "Jury;" "the grand inquest;"--here is
popular Indictment by delegates.
(2.) Then it was found inconvenient for a large body--the whole
country--to investigate the cases presented. Men were busy with their
own work, and did not wish to appear and consume their time. So a
smaller body of men was summoned to attend to any special case which
was presented by the Grand Inquest. These also were sworn to do their
duty. They were to try the men indicted. Here is Trial by sworn
delegates, who represent the Body of the People. They were still
called the "Country," as any spot of the Atlantic is the "Ocean." Here
is the "Trial by Jury." They must be taken from the neighborhood of
the parties concerned--for at this stage the jurors were also the
witnesses, and other sworn witnesses were not then known. All the
Jurors must concur in the vote of condemnation before the magistrate
could hurt a hair of the accused's head.
Still after the people had delegated their law-making to one body of
sworn representatives, and the twofold function of law-applying, by
Indictment and Trial, to other sworn representatives, there was yet a
great concourse of people attending the court on the "law-days;"
especially when important matters came up for adjudication; then the
crowd of people took sides with Plaintiff or Defendant; with the
authorities which accused, or with the man on trial, as the case might
be. Sometimes, when the Jury acquitted, the people tore the suspected
man to pieces; sometimes when the Jury condemned, they showed their
indignation--nay, rescued the prisoner. For the old tradition of
actual trial by the "Body of the Country" still prevailed.
6. At length the Jurors are no longer the witnesses in the case.
Others testify before them, and on the evidence which is offered, the
Grand-Jury indict or not, and the Trial Jury acquit or condemn. Then
the Jurors are no longer taken from the immediate neighborhood of the
party on trial, only from his district or county. But sworn witnesses
from the neighborhood, depose to the facts. There is no longer a great
concourse of people in the open air, but the trial is carried on in a
small court house, yet with open doors, in the face of the people,
_coram populo_--public opinion still influences the Jury.
As most of the Jurors were unlearned men, not accustomed to intricate
questions, it became necessary for the presiding judge, a man of nicer
culture, to prepare rules of evidence which should prevent the matter
from becoming too complicated for the rustic judgment. Thence came the
curious and strange "rules of evidence" which prevail in all countries
where trial by Jury is established, but are unknown in lands where the
trial is conducted solely by experts, educated men. But as the mass of
the people, as in America, become well informed, the old rules appear
ridiculous, and will perish.
The number of sworn judges varies in different tribes of the Teutonic
family, but as twelve has long been a sacred number with the
Anglo-Saxons, that was gradually fixed for the Jury. Twelve consenting
voices are indispensable for the indictment or the condemnation.
* * * * *
Such is the form of the Jury as we find it at this day. The other
officers have also undergone a change. So, Gentlemen, let me give you
a brief sketch of the Historical Formation of the Function of the
Judge in nations of the same ethnological origin. Here I shall mention
four steps.
1. At the meetings of the people to make, apply, and execute the law,
some one must preside to keep order, put the question, and declare the
vote. He was the Moderator of the meeting. At first it would seem that
some important man, a priest, or a noble, or some other wise,
distinguished, or popular man, performed that function. The business
over, he dropped into his private place again. A new one was chosen at
each meeting.
2. If the former moderator had shown skill and aptness, he was chosen
the next time; again and again; at length it was a matter of course
that he should preside. He studied the matter, and became "expert in
all the manners and customs of his nation." This happens in most of
the New England towns, where the same man is Moderator at the
town-meetings for many years in succession. Men love to walk in the
path they have once trodden, even if not the shortest way to their
end.
3. When the nation is organized more artificially and the laws chiefly
proceed from the secondary source, the government,--elective or
usurpatory--a judge is appointed by the central authority to visit
the districts (counties) and assist at the administration of justice.
As the law is now made by the distant delegates, the judge they send
down declares and explains it to the people, for they have not made it
as before directly, nor found it ready-made, an old inherited custom,
but only receive it as the authorities send it down from the Capitol.
The law is _written_--the officer can read while they have no copy of
the law, or could not read it had they the book. Hence the necessity
of a judge learned in the law. Still the people are to apply the
written law or apply it not.
Besides, the old customs remain, the unwritten laws of the people,
which the judge does not understand so well as they. He represents the
written law, the assembly the unwritten custom or tradition. The judge
is appointed that he may please the central power; the people are only
to satisfy such moral convictions as they have. There is often a
conflict between the statute and the custom, a conflict of laws; and
still more between the judge and the jury--a conflict in respect to
the application of the law.
4. Then comes the critical period of the Trial by Jury. For the
deputed judge seeks to enlarge his jurisdiction, to enforce his law,
often against the customs and the consciences of the People, the jury,
who only seek to enlarge Justice. He looks technically at the statute,
the provisional Means of law, not at Justice the ultimate Purpose of
law. To the "Country," the "Body of the People," or to the jury of
inquest and of trial, he assumes not to suggest the law and its
application, but absolutely to _dictate_ it to them. He claims the
exclusive right to decide on the Law and its Application; the jury is
only to determine the Fact--whether the accused did the deed charged
or not.
If the judge succeeds in this battle, then tyranny advances step by
step; the jury is weakened; its original function is curtailed;
certain classes of cases are taken from its jurisdiction; it becomes
only the tool of the government, and finally is thrown aside. Popular
law-making is gone; popular law-applying is also gone; local
self-government disappears and one homogeneous centralized tyranny
takes the place of the manifold Freedom of the people. So the trial by
jury faded out of all the South-Teutonic people, and even from many
regions of the German and Scandinavian North. But the Anglo-Saxon,
mixing his blood with Danes and Normans, his fierce kinsfolk of the
same family, has kept and improved this ancient institution. When King
or Parliament made wicked laws, or appointed corrupt and cruel men for
judges, the People have held this old ancestral shield between the
tyrant and his victim. Often cloven through or thrust aside, the Saxon
Briton never abandons this. The Puritan swam the Atlantic with this on
his arm--and now all the Anglo-Saxon tribe reverences this defence as
the Romans their twelve AONCILIA [Transcriber's Note: for 'AONCILIA'
read 'ANCILIA'; see Errata], the mythic shield which "fell from
Heaven."[113]
[Footnote 113: In this brief sketch I do not refer to the authorities,
but see, who will, the classic passages and proof-texts in the
well-known works of Grimm, Rogge, Biener, Michelsen, Möser, Phillips,
Eichhorn, Maurer, and others.]
* * * * *
After so much historic matter, Gentlemen, it is now easy to see what
is--
THE FUNCTION OF THE JURY AT THIS TIME. Here I make three points.
I. They are to decide the QUESTION OF FACT, the matter charged, and
determine whether the accused did the deed alleged to be done. That is
the first step--to determine the Fact.
II. They are to decide the QUESTION OF LAW, the statute or custom
supposed to apply to the Deed done, and determine whether there is
such a statute or custom, and whether it denounces such a Deed as a
Crime assigning thereto a punishment. That is the second step--to
determine the Law.
III. They are to decide the QUESTION OF THE APPLICATION OF THE LAW TO
THE FACT, and to determine whether that special statute shall be
applied to the particular person who did the deed charged against him.
That is the third step--to determine the Application of the Law.
Gentlemen, I shall speak a few words on each of these points, treating
the matter in the most general way. By and by I shall apply these
general doctrines to this special case.
I. The jury is to DECIDE THE QUESTION OF FACT; to answer, Did the
accused do the deed alleged, at the time and place alleged, with the
alleged purpose and producing the alleged result? The answer will be
controlled by the Evidence of sworn witnesses, who depose under a
special oath to "tell the truth, the whole truth, and nothing but the
truth." Their Evidence is the Testimony as to the Fact,--the sole
testimony; the jury is the ultimate arbiter to decide on the
credibility of the evidence, part by part, and its value as a whole.
Sometimes it is an easy matter to answer this Question of Fact;
sometimes exceedingly difficult. If there be doubts they must weigh
for the accused, who is held innocent until proven guilty.
With us the theory that the jury is the exclusive judge of the
Question of Fact is admitted on all sides. But in England it has often
happened that the judge instructs the jury to "_find the facts_" so
and so; that is--he undertakes to decide the Question of Fact. In
libel cases it is very common for New England judges to undertake to
determine what constitutes a libel, and to decide on the intentions of
the accused; that is to decide the most important part of the complex
and manifold Question of Fact. For it is as much a question of fact to
determine what constitutes a libel, as what constitutes theft, the
_animus libellandi_ as much as the _animus furandi_. Sometimes juries
have been found so lost to all sense of manhood, or so ignorant of
their duties, as to submit to this judicial insolence and usurpation.
If the Jury decide the Question of Fact in favor of the accused, their
inquiry ceases at that step, they return their verdict, "NOT GUILTY;"
and the affair is ended. But if they find he did the deed as charged,
then comes the next function of the Jury.
II. The Jury are to DECIDE THE QUESTION OF LAW. Is there a statute or
custom denouncing a penalty on that special deed? is the statute
constitutional? To determine this matter, there are three sources of
evidence external to their own knowledge.
1. _The Testimony of the Government's Attorney._ The Government itself
is his client, and he gives such a statement of the law as suits the
special purposes of the rulers and his own private and particular
interest, selects such statutes, customs, and decisions, as will serve
this purpose, and declares, Such is the law. Nay, he makes inferences
from the law, and thereby infers new customs, and constructs new
statutes, invents new crimes. He treats the law as freely as he treats
the facts--making the most that is possible against the party accused.
You have seen already what tricks Government attorneys have played,
how they pervert and twist the law--making it assume shapes never
designed by its original makers. He gives his opinion as to the law,
as he gave an opinion as to the fact. This is not necessarily his
personal and actual, but only his official and assumed opinion--what
he wishes the Jury to think is law in this particular case.
2. _The Testimony of the Defendant's Attorney._ The accused is his
client. He is to do all he can to represent the law as favorable as
possible to the man on trial. He gives an opinion of the law, not his
personal and actual, but his official and assumed opinion--what he
wishes the Jury to think is law in this particular case.
3. _The Testimony of the Judge on the Bench._ But in the English
courts, and the Federal courts of the United States, he is commonly no
more than a government attorney in disguise; I speak only of the
general rule, not the exceptions to it. He has received his office as
the reward for party services--was made a judge because he was
one-sided as a lawyer. In all criminal cases he is expected to twist
the law to the advantage of the hand that feeds him. Especially is
this so in all Political trials--that is, prosecutions for opposition
to the party which the judge represents. The judge may be impartial,
or partial, just or unjust, ignorant or learned. He gives an opinion
of the law,--not his personal and actual, but his official and assumed
opinion--what he wishes the jury to think is law in this particular
case. For the court also is a stage, and the judges, as well as the
attorneys, may be players,
"And one man in his time play many parts."
Of these three classes of witnesses, no one gives evidence under
special oath to tell the law, the whole law, and nothing but the
law--or if it be so understood, then all these men are sometimes most
grossly and notoriously perjured; but each allows himself large
latitude in declaring the law. The examples I have already cited, show
that the judge often takes quite as wide a range as the
attorney-general, or the prisoner's counsel.
As the jury hears the manifold evidence as to the facts, and then
makes up its mind thereon and decides the Question of Fact, often
rejecting the opinion of various witnesses, as ignorant, partial,
prejudiced, or plainly false and forsworn; so will the jury hear the
manifold and often discrepant evidence as to the law, and then make up
their mind thereon and decide the Question of Law, often rejecting the
opinion of various witnesses thereupon ignorant, partial, prejudiced,
or plainly false and forsworn.
In regard to the Fact, the jury is limited to the evidence adduced in
court. What any special juror knows from any other source is not
relevant there to procure conviction. But in regard to the Law there
is no such restriction; for if the jury know the law better than these
three classes of witnesses for it in court, then the jury are to
follow their better knowledge. At any rate, the jury are to make up
their minds on this question of Law, and for themselves determine what
the special Law is.
Every man is to be held innocent until proved guilty--until the
special Deed charged is proved against him, and until that special
deed is proved a Crime. The jury is not to take the government
attorney's opinion of the Fact, nor the prisoner's counsel's opinion
of the Fact, nor yet the judge's opinion thereon; but to form their
own opinion, from the evidence offered to make up their own judgment
as to the Fact. So likewise they are not to take the government
attorney's opinion of the Law, or the prisoner's counsel's opinion of
the Law, nor yet the judge's opinion thereon; but from all the
evidence offered, not [Transcriber's Note: for 'not' read 'or'; see
Errata] otherwise known to them, to make up their own judgment as to
the Law. After they have done so--if they decide the Law in favor of
the accused, the process stops there. The man goes free; for it does
not appear that his deed is unlawful. But if the jury find the Law
against the deed, they then proceed to their third function.
III. The jury is to decide the QUESTION OF THE APPLICATION OF THE LAW
TO THE FACT. Here is the question: "Ought the men who have done this
deed against the form of Law to be punished thereby?" The government
attorney and the judge are of the opinion that the law should be thus
applied to this case, but they cannot lay their finger on him until
the jury, specially sworn "well and truly to try and true deliverance
make," have unanimously come to that opinion, and say, "Take him and
apply the law to him."
The Deed may be clear and the Statute clear, while the Application
thereof to the man who did the deed does not follow, and ought not to
follow. For
1. It is not designed that the full rigor of every statute shall be
applied to each deed done against the letter thereof. The statute is a
great sleeping Lion, not to be roused up when everybody passes that
way. This you see from daily practice of the courts. It remains in the
Discretion of the Attorney to determine what offences he will present
to the Grand-Jury,--he passes by many, and selects such as he thinks
ought to be presented. It remains in the Discretion of the Grand-Jury
to determine whom they will indict, for sometimes when the Fact and
Law are clear enough to them, they yet find "no bill" or _ignore_ the
matter. And after the man is indicted, it still remains in the
Discretion of the Attorney to determine whether he will prosecute the
accused, or pass him by. Indeed I am told that the very Grand-Jury who
found the bills which have brought you and me face to face, hesitated
to indict a certain person on account of some circumstances which
rendered his unlawful act less deserving of the legal punishment: the
Attorney told them he thought they had better find a bill, and he
would enter a _nolle prosequi_ in court,--plainly admitting that while
the Law and the Fact were both clear, that the Grand-Jury were to
determine in their Discretion whether they would apply the law to that
man, whether they would indict or not; and the Attorney whether he
would prosecute or forbear. It remains equally in the Discretion of
the Trial Jury to determine whether the man who did the unlawful deed
shall be punished--whether the spirit of that statute and the Purpose
of Law requires the punishment which it allows.
2. Besides, in deciding this question--the jurors are not only to
consider the one particular statute brought against the prisoner, but
the whole Complex of Customs, Statutes, and Decisions, making up the
Body of Law, and see if that requires the application of this special
statute to this particular deed. Here are two things to be
considered.
(1.) The general Purpose of the whole Body of Laws, the Object aimed
at; and
(2.) The Means for attaining the end. Now the Purpose of Law being the
main thing, and the statute only subsidiary to that purpose, the
question comes--"Shall we best achieve that Purpose by thus applying
the statute, or by not applying it?" This rests with the Jury in their
Discretion to determine.
3. Still more, the Jury have consciences of their own, which they must
be faithful to, which no official position can ever morally oblige
them to violate. So they are to inquire, "Is it right in the sight of
God, in the light of our consciences, to apply this special statute to
this particular case and thus punish this man for that unlawful deed?"
Then they are to ask, also, "Was the deed _naturally wrong_; done from
a wrong motive, for a wrong purpose?" If not, then be the statute and
the whole complex of laws what they may, it can never be right for a
jury to punish a man for doing a right deed, however unlawful that
deed may be. No oath can ever make it right for a man to do what is
wrong, or what he thinks wrong--to punish a man for a just deed!
But if the twelve men think that the Law ought not to be applied in
this case--they find "not guilty," and he goes free; if otherwise,
"guilty," and he is delivered over to the judges for sentence and its
consequences, and the judge passes such sentence as the Law and his
Discretion point out.
The judge commonly, and especially in political trials, undertakes to
decide the two last Questions himself, determining the Law and the
Application thereof, and that by his Discretion. He wishes to leave
nothing to the Discretion of the jury, who thus have only the single
function of deciding the Question of Fact, which is not a Matter of
Discretion--that is, of moral judgment,--but only a logical deduction
from evidence, as the testimony compels. He would have no moral
element enter into their verdict. The judge asks the jury to give him
a deed of the ground on which he will erect such a building as suits
his purpose, and then calls the whole thing the work of the jury, who
only granted the land!
But this assumption of the judges ultimately and exclusively to decide
the question of Law and its Application, is a tyrannous usurpation.
(1.) It is contrary to the fundamental Idea of the Institution of
Trial by jury.
(2.) It leads to monstrous tyranny by putting the Property, Liberty,
and Life of every man at the mercy of the government officers, who
determine the Law and its Application, leaving for the jury only the
bare question of Fact, which the judge can so manage in many cases as
to ruin most virtuous and deserving men.
(3.) Not only in ancient times did the jury decide the three questions
of Fact, of Law, and of its special Application, but in cases of great
magnitude they continue to do so now, in both America and England, and
sometimes in direct contradiction to the commands of the judges.
* * * * *
Gentlemen of the Jury, if you perform this threefold function, then
you see the exceeding value of this mode of trial,
1. For the punishment of wrong deeds done against the law, done by the
unorganized selfishness of thieves, housebreakers, murderers, and
other workers of unrighteousness;
2. And also for the prevention of wrong deeds attempted in the name of
law, by the organized selfishness of the makers and officers thereof.
For in each special case brought to trial, the jury are judges of the
Law and of its Application. They cannot make a law--statute or
custom--nor repeal one; but in each particular case they must demand
or forbid its execution. These Tribunes of the Saxon People have no
general veto on law-making, and can efface no letter from the
statute-book, but have a special and imperative veto on each case for
the Application of the law.
Justice, the point common to the interests of all men, yes, the point
common to God and our Conscience, is the Aim and Purpose of Law in
general; if it be not that the law is so far unnatural, immoral, and
of no obligation on the conscience of any man. The special Statute,
Custom, or Decision, is a provisional Means to that end; if just, a
moral means and adequate in kind; if unjust, an immoral means,
inadequate in kind, and fit only to defeat the attainment of that
Justice which is the Purpose of all Law. Accordingly, if by an
accident, a special statute is so made that its application in a
particular case would do injustice and so defeat the Design and
Purpose of Law itself, then the function of the jury under their oath
requires them to preserve the End of law by refusing to apply the
provisional statute to an unjust use. And if by design a statute is
made in order to do injustice to any man--as it has very often
happened in England as well as America,--then the jury will accomplish
their function by refusing to apply that statute to any particular
case. So will they fulfil their official oath, and conserve the great
ultimate Purpose of Law itself.
Gentlemen, you will ask me where shall the jury find the Rule of
Right, and how know what is just, what not? In your own Conscience,
Gentlemen; not in the conscience of the Attorney for the
Plaintiff-Government, or the accused Defendant; not in the conscience
of the community; still less in the technical "opinion" of the
lawyers, or the ambition, the venality, the personal or purchased rage
of the court. Of course you will get such help as you can find from
judges, attorneys, and the public itself, but then decide as you must
decide--each man in the light of his own conscience, under the
terrible and beautiful eyes of God. How does the juror judge of the
Credibility of Evidence? By the "opinion" of the lawyers on either
side? by the judge's "opinion," or that of the community? No one would
dare determine thus. He decides personally by his own common sense,
not vicariously by another's opinion. And as you decide the Matter of
Fact by your own Discretion of Intellect, so will you decide the
Matter of Right by your own Discretion of Conscience.
Gentlemen, when the jury do their official duty it becomes impossible
to execute a statute, or custom, or to enforce a decision which the
jury--"the country"--think unjust and not fit to be applied.
But if the judge usurps these two functions of the jury, and himself
decides the Question of Law and its Application, you see what
follows--consequences the most ghastly, injustice in the name of Law,
and with the means of Law! Yes, tyranny spins and weaves with the
machinery of Freedom, and a Nessus-shirt of bondage is fixed on the
tortured body of the People. The power of the judge will be especially
dangerous in times of political excitement, and in political trials.
* * * * *
Gentlemen, this matter is so important, and the danger now so imminent
that you will pardon me a few words while I set forth the mode by
which this wickedness goes to work, and what results it brings to
pass. Follow me in some details.
I. As to the judges dealing with the Grand-Jury.
Here let me take the examples from the circuit court of the United
States in a supposed case where a man is to be tried for violating the
fugitive slave bill. You will see this is a case which may actually
happen.
1. The judge challenges the whole body summoned as grand-jurors and
catechizes them after this fashion.
(1.) "Have you formed an opinion that the law of the United States,
known as the Fugitive Slave Law of 1850, is Unconstitutional, so that
you cannot indict a person under it for that reason, although the
court holds the statute to be Constitutional?"
This is riddling No. 1. Such as think the fugitive slave bill
unconstitutional are at once set aside. The judge proceeds to ask such
as have no doubt that it is constitutional,
(2.) "Do you hold any opinions on the subject of Slavery in general,
or of the Fugitive Slave Law in special, which would induce you to
refuse to indict a man presented to you for helping his brother to
freedom?"
This is riddling No. 2; other "good men and true" are rejected, but
some are found "faithful" to the purposes of the court; and the judge
puts his next question,
(3.) "Will you accept for Law whatever the court declares such?"
This is riddling No. 3. Still the judge finds three-and-twenty men
small enough to pass through all these sieves. They are to be "the
jury." All the men who deny the constitutionality of the wicked
statute; all who have such reverence for the unalienable Rights of man
and for the Natural Law of God that they would not prevent a Christian
from aiding his brother to escape from bondage; all who have such
respect for their own manhood that they will not swear to take a
judge's word for law before they hear it--are shut out from the "grand
inquest;" they are no part of the "Country," or the "Body of the
county," are not "good men and true."
Gentlemen of the Jury, consider the absurdity of swearing to take for
law what another man will declare to be law, and before you hear it!
Suppose the judge should be drunk and declare the fugitive slave bill
in perfect harmony with the Sermon on the Mount, those noble words
"Whatsoever ye would that men should do unto you, do ye even so unto
them,"--are jurors to believe him? What if the judge should be sober,
and declare it a "misdemeanor" to call the fugitive slave bill a
wicked and hateful statute, and all who thus offended should be put in
jail for twelve months! Are honest men to take such talk for American
law?
The jurors then take this oath which the clerk reads them:--
"You, as a member of this Inquest for the District of Massachusetts,
shall diligently inquire and true presentment make of all such matters
and things as shall be given you in charge; the counsel of the United
States, your fellows', and your own you shall keep secret; you shall
present no man for envy, hatred, or revenge; neither shall you leave
any man unpresented--for love, fear, favor, affection, or hope of
reward; but you shall present things truly as they come to your
knowledge, according to the best of your understanding. So help you
God!"[114]
[Footnote 114: See other forms of Oath in 8 St. Tr. 759, 772.]
Then the judge appoints the most pliant member of the jury as
"foreman"--selecting, if possible to find him, some postmaster or
other official of the government, or some man marked for his injustice
or venality, who may have the desirable influence with his fellows.
2. The next thing is to moisten this material thus trebly sifted, and
mould it into such vessels of tyranny as he can fill with his private
or judicial wrath and then empty on the heads of his personal foes or
such as thwart his ambitious despotism or the purposes of his
government. So he delivers his CHARGE TO THE GRAND-JURY.
By way of introduction, he tells them--
(1.) That they are not the Makers of Law. Legislation is the function
of Congress and the President; even the COURT, the "SUPREME COURT OF
THE UNITED STATES" itself cannot make a law, or repeal one!
(2.) That they are not the Declarers, or Judges of Law. To know and
set forth the Law is the function of the COURT. It is true every man
in his personal capacity, as private citizen, is supposed to know the
law, and if he violates it, of his own presumption, or by the
persuasion of some others who falsely tell him about the law, he must
be punished; for "_ignorantia nemini excusat_," ignorance excuseth
none; the private advice of the full bench of judges would be held no
excuse. But in their official capacity of jurors they are supposed to
know nothing of the Law whatsoever.
It seems taken for granted that though one of the Jurors may be an old
judge of the Supreme Court of the United States, and have sat on the
bench for twenty years; nay, though he may be also an old legislator
of twenty years' standing, and as legislator have made the very
statute in question, and also as judge subsequently have explained and
declared it, yet the moment he takes the oath as Grand-Juror, all this
knowledge is "gone from him" as completely Nebuchadnezzar's dream. The
court is the assembly of magicians, astrologers, sorcerers, and
Chaldeans to restore it. Congress might pass a law compelling
ex-judges, ex-senators, and ex-representatives--who are so numerous
nowadays, and continually increasing and likely to multiply yet
more,--to serve as grand-jurors; soon as they take their oath, they
are in law held and accounted to be utterly ignorant of law, and bound
to accept as law whatsoever the court declares such. The acting judge
may be young, blind, ignorant, ambitious, drunk with brandy or rage,
he may have a personal interest in promoting [Transcriber's Note: for
'promoting' read 'perverting'; see Errata] the law, and may
notoriously twist it so as to gratify his peculiar or familistic
spleen, still the jury to accept the court's opinion for the nation's
law. Any political ignoramus, if hoisted to the "bench," has judicial
authority to declare the law,--it is absolute. If he errs, "he is
responsible to the proper authorities--he may be removed by
impeachment;" but the jury must not question the infallibility of his
opinion. For though the grand-jury is "the country," the judge is not
only all that, and more so; but is "the rest of mankind" besides.
Then the judge goes further--talks _solemnly_, yet familiar; to
wheedle jurors the better, he mixes himself with them, his "WE"
embracing both judge and jury. I shall now quote actual language used
in this very court, by the late Hon. Judge Woodbury:--
"One of the peculiar dangers ... to which jurors, as well as
judges, are exposed, is the _unpopularity, or obnoxiousness_
... of any particular law, which has been violated, leading
_us_ ... to be timid or unfaithful in enforcing it ... the
subject-matter being a delicate or offensive one." "While we
... are holding the scales as well as the sword of Justice,
in _humble imitation of the Divine Judge_ on high," it is
our duty to "_let law, as law_, [that is, whether it is just
or unjust] _reign supreme_, reign equally over all, and as
to _all things_, no less than persons; and till it is
changed by the proper authorities, _not to interpose our
individual caprices or fancies or speculations_ [that is,
our _convictions of justice_] _to defeat its due course and
triumph_." We must _not_ "_disregard laws_, when disliked,
_because we can_, under the universal suffrage enjoyed here,
_otherwise help_ legally _to change or annul them_ by our
votes." "As jurors _you have sworn to obey them till so
changed_, and ought to stand by them faithfully, to the last
moment of their existence." "We are safest in our capacity
of public officers ... to execute the laws as they are
[right or wrong], _while others_ who may make or retain bad
laws in the statute-book, _are answerable for their own
wrong_. If they preserve laws on the statute-book, which are
darkness rather than light and life to the people, theirs is
the fault, [that is, if a blacksmith make a dagger, and tell
us to stab an innocent man with it, we must obey, and the
blame will rest on the blacksmith who made the dagger, not
on the assassin who murdered with it!] In some cases, also,
when we think the _existing laws and punishments are wrong_,
and hence venture to encourage others in disobedience by
neglecting to indict and punish offenders, it should make us
pause and halt when it is remembered, it may turn out that
_we_ ourselves _may not be exactly Solons or Solomons_ in
these respects, nor quite so much wiser than the laws
themselves, as sometimes we are hastily induced to suppose."
"Miserable must be the fate of that community where the
ministers of the law are themselves disposed to disregard
it;" "government will become a curse;" "and this whether
such a _betrayal of public trust_ springs from the
_delusions of false philanthropy or fanatical prejudices, no
less than when it comes from unbridled licentiousness_."
"We must not lay the flattering unction to our souls, that
because by some _possibility there may not be guilt_, we can
rightfully discharge as if there were no guilt." "It is
sometimes urged against agreeing to indict, convict, or
punish, that we have _conscientious scruples on the
subject_;" "if sincere tenderness of conscience presses on
the heart and mind against executing some of the laws, _it
should lead us to decline office or resign_; not to neglect
or disobey, while in office, what we have promised and sworn
to perform;" [as if the juror swore to do injustice!] "or if
a majority prove unaccommodating or inflexible against us,
then it behooves those differing from them ... _to withdraw
entirely from such a government, and emigrate_." [So the
juror must not try to do justice at home, but seek it in
exile.] "But in all such cases we must take special care not
to indulge ourselves in considering an act as a sin which
_is only disagreeable_, or the result of only some
_prejudice or caprice_." "_The presumptions are that all
laws_, sanctioned by such intelligent, numerous, and
respectable members of society as compose our legislative
bodies, _are constitutional_, and until pronounced otherwise
by the proper tribunal, the judiciary, _it is perilous for
jurors to disobey them_," [that is, to refuse to execute
them] "and it is trifling with their solemn obligations to
_disregard them in any way and on any occasion, from
constitutional doubts_, unless of the clearest and strongest
character."[115]
[Footnote 115: The above extracts are from Judge Woodbury's charge to
the Grand-Jury, in Circuit Court of United States, at Boston, taken
from the _Evening Traveller_, copying the reprint of Boston Daily
Advertiser, of October 25, 1850.]
He then tells them that _no feeling of Humanity_ must be allowed to
prevent them from executing any law which the court declares to them,
"whether the statute is a harsh one, is not for us to determine."[116]
_A cruel law is to be enforced as vigorously as a humane one_; an
_unjust law_ as a _just one_; a statute which aims to defeat the
purpose of Law itself, just as readily as one which aims to secure the
dearest rights of humanity. If the statute is notoriously wicked, as
in the case supposed, then the Judge says: "It is to be observed that
this statute [the fugitive slave bill] subjects no person to arrest
who was not before liable to be seized and carried out of the State;"
"Congress has enacted this law. _It is imperative, and it will be
enforced._ Let no man mistake the mildness and forbearance with which
the criminal code is habitually administered, [as in cases of engaging
in the slave-trade] for weakness or timidity. _Resistance [to the
fugitive slave bill] must make it sternly inflexible._" "As great
efforts have been made to convince the public that the recent law [the
fugitive slave bill] cannot be enforced with a good conscience, but
may be conscientiously resisted ... I deem it proper to advert,
briefly, to _the moral aspects_ of the subject." "The States without
the constitution would be to each other foreign nations." "Those,
therefore, who have the strongest convictions of the _immorality of
the institution of slavery_, are not thereby authorized to conclude
that the _provision for delivering up fugitive slaves is morally
wrong_, [that is, if it be wrong to hold man in bondage, it is also
not wrong,] or that our Fathers ... did not act wisely, justly, and
humanely in acceding to the compacts of the Constitution." "Even those
who go to the extreme of condemning the Constitution and the laws made
under it, as _unjust and immoral_, cannot ... justify resistance. In
their view, such laws are inconsistent with the justice and
benevolence and against the will of the Supreme Lawgiver, and they
emphatically ask, '_Which shall we obey, the law of man, or the Will
of God?_' I answer, 'OBEY BOTH!' The _incompatibility_ which the
question assumes [between _Right and Wrong, or Good and Evil, or God
and the Devil_] _does not exist_! Unjust and oppressive laws _may
indeed be passed_ by human governments. But if _Infinite and
Inscrutable Wisdom permits political society_, having the power of
human legislation, _to establish such laws, may not the same Infinite
and Inscrutable Wisdom permit and require an individual_, who has no
such power, _to obey them_?" [So "if Infinite and Inscrutable Wisdom
permits" a Blacksmith "having the power" to forge steel and temper
it, to make daggers, "may not the same Infinite and Inscrutable Wisdom
permit and require the individual" carpenter or tailor, who has no
such power, to use the dagger for the purpose intended!] "Conscience,
indeed, is to be reverenced, and obeyed; but still we must remember
that it is _fallible_, especially when the rights of others are
concerned, [that is, the right to kidnap men] _and may lead us to do
great injustice_, [by refusing to punish a man who helps his brother
enjoy his self-evident, natural, and unalienable right to life,
liberty, and the pursuit of happiness]. The annals of the world abound
with enormities committed by a narrow and darkened conscience." A
_statute_ "is the moral judgment, the _embodied conscience of the
political community_, [the fugitive slave bill the 'embodied
conscience' of New England]. To this not only is each individual bound
to submit, [right or wrong,] but it is a new and _controlling element
in forming his own moral judgment_;" [that is, he must _think_ the
statute is just]. "Obedience is a _moral duty_, [no matter how immoral
the law may be]. _This is as certain as that the Creator made man a
social being_;" "to _obey the laws of the land_ [no matter what laws,
or how wicked soever] _is, then, to obey the Will of God_!"
[Footnote 116: Words of Chief Justice Parker, in _Commonwealth_ vs.
_Griffith_, 2 Pickering's Reports, 19, cited with approbation by Chief
Justice Shaw, in the Sims case, 7 Cushing's Reports, 705, and also
cited from him and acted on by fugitive slave bill Commissioner
Loring, in the Burns case.]
Gentlemen of the Jury, you think I have imagined and made up this
language out of my own fancy. No, Gentlemen, I could not do it. I have
not the genius for such sophistry. I only quote the words of the Hon.
Judge Peleg Sprague delivered to the grand-jury of this Circuit Court
of United States at Boston, March 18, 1851.[117] Gentlemen, I showed
you what Thurlow could say at Horne Tooke's trial on the 4th of July,
1777. Nay, I quoted the words of Powis and Allybone, and Scroggs and
Jeffreys.[118] But, Gentlemen, the judge of New England transcends the
judges of Old England.
[Footnote 117: See _Boston Daily Advertiser_ of March 19, 1851.]
[Footnote 118: See above, p. 33, 37, _et al._]
3. Having made this general preparation for his work and shaped his
vessel to the proper form, he proceeds to fill it with the requisite
matter.
(1.) He practically makes the Law just as he likes, so as to suit the
general purpose of the government, or the special purpose of his
private vengeance or ambition. Thus,
a. Out of the whole complex of law--statutes, decisions, customs,
charges, opinions of judicial men, since the Norman conquest or before
it,--he selects that special weapon which will serve his present turn.
And tells the jury, "that is the law which you are sworn to enforce. I
have not made it--it is the _Lex terræ_, the Law of the Land." Or if
in such an arsenal, so copious, he finds no weapon ready made, then
b. Out of that pile of ancient instruments he selects something which
he forges over anew, and thus constructs a new form of law when he
could not find one ready for his hand. If a straight statute will not
catch the intended victims he perverts it to a hook and therewith lays
hold. He thus settles the law.
(2.) He next practically determines what Deed constitutes the
"offence" forbidden by the law he has just made. So he selects some
act which it is notorious was done by the man he strikes at, and
declares it is the "offence," the "crime." Here too he is aided by
ancient precedent; whereof if our brief Republican annals do not
furnish examples, he hies to the exhaustless treasury of Despotism in
the English common law. He opens the "Reports," the "Statutes of the
Realm," or goes back to the "Year-books." Antiquity is rich in
examples of tyranny. "He readily finds a stick who would beat a dog."
"Such are the opinions," quoth he, "of the venerable Chief Justice
Jones," or "my Lord Chancellor Finch," or "Baron Twysden," or "my Lord
Chief Justice Kelyng."
Thus the Judge constructs the Jury--out of such men as he wishes for
his purpose; constructs the Law, constructs the Offence, the Crime:
nay, he points out the particular Deed so plain that he constructs the
Indictment. All that is left for the "Grand Inquest" is the mechanical
work of listening to the "evidence" and signing the Bill--"_Billa
Vera_," a true bill. That they may accomplish this work he delivers
them over to the District Attorney; he may be also an agent of the
government, appointed for his party services, looking for his reward,
expecting future pay for present work, extra pay for uncommon zeal and
"discretion." Gentlemen of the Jury, this _may_ be the case--humanity
is fallible, and it sometimes may happen even in the Circuit Court of
the United States that such a man should hold the office of District
Attorney. For it is not to be expected, nay, it is what we should not
even ask--that this place should always be filled by such conspicuous
talent, such consummate learning, and such unblemished integrity as
that of the present attorney (Hon. Mr. Hallett). No, Gentlemen of the
Jury, as I look round these walls I am proud of my country! Such a
District Attorney, so bearing "his great commission in his look;" his
political course as free from turning and winding as the river
Missouri; high-minded, the very Cæsar's wife of democratic
virtue,--spotless and unsuspected; never seeking office, yet alike
faithful to his principles and his party; and with indignant foot
spurning the Administration's bootless bribe,--the fact outtravels
fancy. Nay, Gentlemen, it is something to be an American--I feel it
as I look about me. For the honorable Attorney is perfectly suited to
this Honorable Court;--yea, to the Administration which gives them
both their dignity and their work and its pay. Happy country with such
an Attorney, fortunate with such a Court, but thrice and four times
fortunate when such several stars of justice unite in such a
constellation of juridic fire!
But, Gentlemen, it is too much to ask of human nature that it should
be always so. In my supposed case, the judge delivers the persons
accused to the officers, restless, bellowing, and expecting some
fodder to be pitched down to them from the national mow, already
licking their mouths which drool with hungry anticipation. They will
swear as the court desires. Then the Attorney talks with the most
pliant jurors, coaxes them, wheedles them, stimulates them to do what
he wants done. Some he threatens with the "displeasure of the
government;" he swears at some. After all, if the jury refuse to find
a bill,--a case, Gentlemen, which has happened,--they are discharged;
and a new jury is summoned; some creature of the government is put on
it, nay, perhaps some kinsman of the anxious judge, at least a
Brother-in-Law, and at last twenty-three men are found of whom twelve
consent to a "True Bill." Then great is the joy in the judge's
heart,--it is corrupt judges I am speaking of, Gentlemen of the Jury,
not of upright and noble men, may it please your Honors! There is
great joy in the judge's heart, and great rejoicing _amongst his
kinsfolk and intimate friends_ who whinney and neigh over it in the
public journals, and leer at the indicted man in the street, lolling
out their tongues greedy for his [Transcriber's Note: omit 'his'; see
Errata] vengeance!
* * * * *
II. Now, Gentlemen, look next at the judge's dealing with the
Trial-Jury. He proceeds as before.
1. He sifts the material returned to him, through those three sieves
of questioning, and gets a Jury with no hard individual lumps of solid
personal independence. They take the oath which you have just taken,
Gentlemen: "You shall well and truly try the issue between the United
States and the Defendant at the Bar, according to the law, and the
evidence given you, so help you God!"
The facts are then presented, and the case argued on both sides.
2. The Judge sums up, and charges the Jury. He explains their oath; to
try the issue _according to the law_ does not mean (a) according to
the whole complex which is called "_Law_," or "_The Law_," but
according only to that particular statute which forbids the deed
charged,--for otherwise the Jury must judge of the Purpose of Law,
which is Justice, and inquire into the rightfulness of the deed and of
the statute which forbids it. Nor does it mean (b) by the Jurors'
notion of that statute, but only by the Judge's opinion thereof. He
tells them--if they proceed to inquire into the natural Justice of the
deed, or into the law which forbids it, then they transcend their
office, and are guilty of "Perjury," and reads them the statute for
the punishment of that offence, and refers to examples--from the times
of the Stuarts, though he does not mention that--when Jurors were
fined and otherwise severely dealt with for daring to resist a judge.
Then out of the facts testified to by the government witnesses, he
selects some one which is best supported, of which there is no doubt.
He then declares that the question of "Guilty or not guilty" turns on
that point. If the accused did that deed--then he is Guilty. So the
moral question, "Has the man done a wrong thing?" is taken from their
consideration; the intellectual question, "Has he done a deed which
amounts to the crime forbidden?" is not before them; only the
mechanical question, "Did he do that particular act?" They are not to
inquire as to the Justice of the law, its Constitutionality, or its
Legality; nor the Justice or the Criminality of the deed--only of its
Actuality, Did he do this deed? Nay, sometimes the Judge treats them
as cattle, and orders them to _find the facts for the government_. If
they refuse, he threatens them with punishment.
Thus he constructs the Trial-Jury, the Law, the Evidence, the Crime,
and the Fact.
* * * * *
Now, Gentlemen, when this is done and done thoroughly, the Judge has
kept all the Forms, Presentment by the Grand-Jury, and Trial by a
Petty Jury; but the substance is all gone; the Jury is only a stalking
horse, and behind it creeps the Judicial servant of Tyranny, armed
with the blunderbuss of law,--made and loaded by himself,--and
delivers his shot in the name of law, but against Justice, that
purpose of all law. Thus can tyranny be established--while all the
forms of law are kept.[119]
[Footnote 119: See 1 Jardine, Criminal Trials, 110. 2 Parker's
Sermons, 266 and note.]
Gentlemen of the Jury, let me make this more clear by a special case
wholly fictitious.--Thomas Nason, a "Non-Resistant" and a Quaker, is a
colored citizen of Boston, the son and once the slave of Hon. James
Nason of Virginia, but now legally become a free man by self-purchase;
he has the bill of sale of himself in his pocket, and so carries about
him a title deed which would perhaps satisfy your Honors of his right
to liberty. But his mother Lizzie (Randolph) Nason, a descendant of
both Mr. Jefferson and Mr. Madison,--for Virginia, I am told, can
boast of many children descended from two Presidents, perhaps from
three, who
"Boast the pure blood of an illustrious race,
In quiet flow from Lucrece to Lucrece"--
from Saxon master to African slave,--is still the bondwoman of the
Hon. James, the father of her son Thomas. From the "Plantation
manners" of her master, the concubine, "foolishly dissatisfied with
slavery," flies to Boston, and takes refuge with her Quaker son, who
conceals his mother, and shelters her for a time. But let me suppose
that his Honor Judge Curtis, while at Washington, fired with that
patriotism which is not only habitual but natural and indigenous to
his Honor, informs Mr. Nason of the hiding-place of his female slave,
thus betraying a "mistress" to her master, no longer, alas, her
"keeper." It is no injurious imputation--it is an imaginary honor I
attribute to the learned and honorable Judge. Mr. Nason sends the
proper agent to Boston to save the Union of States by restoring the
union of master and slave. Mr. George Ticknor Curtis, fugitive slave
bill commissioner, and brother to the Hon. Judge, issues his warrant
for kidnapping the mother; his coadjutor and friend, Mr. Butman,
attempts to seize her in her son's house. Thomas, unarmed, resists the
intruder, and with a child's pop-gun drives that valiant officer out
of the house, and puts the mother in a place of safety,--beneath the
flag of England, or the Pope, or the Czar. Commissioner Curtis
telegraphs the news to Washington,--announcing a "NEW CASE OF
TREASON--more 'levying war!'" The Secretaries of State and of War
write dreadful letters, breathing fire and slaughter, and President
Pierce, a man of most heroic courage, alike mindful of his former
actual military exploits at Chapultepec, of his delegated triumph at
Greytown, and of the immortal glory of Mr. Fillmore, issues his
Proclamation, calling on all good citizens, and especially on the
politicians of his party, to "Save the Union" from the treason of this
terrible Thomas Nason, who will blow up the Constitution with a
pop-gun!
At the next session of the Honorable Circuit Court of the United
States in and for the first District, his Honor the Hon. Benjamin
Robbins Curtis, Judge, constructs and charges the Grand-Jury in the
manner already set forth. He instructs them that if any man, by force
and arms, namely, with a pop-gun, does resist a body of United States
officers, attempting to kidnap a woman, his own mother, that he
thereby levies war against the United States, and accordingly commits
the crime of "Treason" which consists in levying war against the
United States--the "_amount_ of force is not material." And it is
their duty to indict all persons in that form offending. The Attorney,
the Hon. Benjamin Franklin Hallett, offers to "bet ten dollars that I
will get" Nason "indicted," and urges the matter. But no bill is
found, the Jury is discharged, a new Jury is summoned, and Mr. William
W. Greenough, the Brother-in-law of the Judge is put on it, "drawn as
Juror"--and then a "true bill" is found, Mr. Hallett actually making
an indictment that cannot be quashed!
On the day before Thanksgiving Thomas Nason is arraigned; and is
brought to trial for this new Boston Massacre on the anniversary of
the old one--on the Fifth of March. The judge constructs a Trial-Jury
as before. Mr. Hallett, assisted by Mr. Thomas, Mr. George T. Curtis,
and Commissioner Loring, manage the case for the government, bringing
out the whole strength of the kidnapping party, and directing this
Macedonian phalanx of Humanity and Law and Piety against a poor
friendless negro. Mr. Hale, Mr. Ellis, and Mr. Dana defend him.
Officer Butman and his coadjutors--members of the "Marshal's
guard"--testify that Mr. Nason attacked them with the felonious weapon
above named, putting them in mortal bodily fear greater than that
which in Mexico once overthrew the (future) President of all this
land! Mr. Herrman, the dealer in toys, testifies that he sold the
murderous weapon for twenty-five cents to Mr. Nason who declared that
he "could frighten Butman with it;" that it is of German manufacture,
and is called a Knallbüchse!
Judge Curtis sums up the matter. He tells the jury, (1.) That they are
not to judge of the Law punishing treason, but to take it from the
Court. (2.) Not to judge what Act constitutes the Crime of Treason,
but take that also from the Court, and if the Court decides that
offering a pop-gun at a rowdy's breast constitutes the crime of
treason, they are to accept the decision as constitutional law. (3.)
They are not to ask if it be just to hang a man for thus resisting a
body of men who sought to kidnap his mother, for even if it be unjust
and cruel it is none of their concern, for they must execute a cruel
and unjust law with even more promptitude than a just and humane one,
and in the language of the "Defender of the Constitution," "conquer
their prejudices," and "do a disagreeable duty." (4.) If they think
the Law commands one thing and the Will of God exactly the opposite,
in the well-known words of Judge Sprague, they must "obey both" by
keeping the law of man when it contradicts the law of God, for they
can never be good Christians so long as they scruple to hang a Quaker
for driving off a kidnapper; and obedience to the law is a moral duty,
no matter how immoral the law may be, and "to obey the law of the land
is to obey the will of God." (5.) But they have a simple question of
fact to determine; namely, Did the Defendant resist officer Butman in
the manner set forth? If satisfied of that, they must find him guilty.
No mistaken notions of Justice must induce them to refuse their
verdict--for they are not to make the law, but only help execute it;
and their conscience is so "fallible, especially when the rights of
others are concerned, and may lead them to do great injustice," for
"the annals of the world abound with enormities committed by a narrow
and darkened conscience." They must not ask if it be "religious" to do
so--for to use the words of the most religious of all Americans, a man
of most unspotted life in public and private, "Religion has nothing to
do with politics," and this is a political trial. If there be any
injustice in the law and its execution the blame lies with the makers
thereof not with the jurors, and they may wash their hands as clean as
Pilate's from the blood of Christ. Besides, if there be injustice the
President can pardon the offender, and from his well-known religious
character--which rests on the unbiased testimony of his _own minister_
and the statement of several partisan newspapers published in the very
heat of the election, when men, and especially politicians looking for
office, never exaggerate,--he doubtless "will listen to petitions for
a commutation of punishment!"
But there is no injustice in it--for slavery is part of the _lex
terræ_, the law of the land, protected by the Constitution itself,
which is the _Lex Suprema_--the Supreme Law of the Land, and nearly
eighty years old! Besides, "Slavery is not immoral," not contrary to
the public policy of Massachusetts; and, moreover, the "mother" whom
the criminal actually rescued, was a "foreigner" and "whatever rights
she had, she had no right _here_."[120]
[Footnote 120: See Hon. Judge Curtis's Speech at the Union Meeting in
Faneuil Hall, November 26, 1850.]
But it is not a cruel or an unchristian thing to require a negro
layman to allow his mother to be kidnapped in his own house--especially
if she were a born slave, and so by the very law "a chattel personal
to all uses, intents, and purposes whatever," and of course wholly
divested of all natural rights, even if a colored person ever had
any--for an eminent American minister, of one of the most enlightened
sects in Christendom, has publicly offered to send his own freeborn
mother into bondage for ever!
Moreover, if the jurors do not find a verdict of guilty, then they
themselves are guilty of PERJURY!
So the jury, without leaving their seats, find him guilty; the judge
sentences; the President signs the Death-warrant, and Marshal Freeman
hangs the man--to the great joy of the Commissioner's and the
Marshal's guard who vacate the brothels once more and attend on that
occasion and triumph over the murdered Quaker.
But the mischief does not stop there; the Boston slave-hunters are not
yet satisfied with blood; the judge constructs another grand-jury as
before, only getting more of his kinsfolk thereon, and taking his law
from the impeached Judges Kelyng and Chase, charges that all persons
who _advise_ to an act of levying war, or evince an "_express liking_"
for it, or "_approbation_" of it, are also guilty of treason; and "in
treason all are Principals." Accordingly the jury must indict all who
have evinced an "express liking" of the rescue, though they did not
evince approval of the rescue by such means. It appears that Rev. Mr.
Grimes in the meeting-house the Sunday before the treason was
consummated, had actually prayed that God would "break the arm of the
oppressor and let the oppressed go free;" that he read from a book
called the Old Testament, "Bewray not him that wandereth," "Hide the
outcast," and other paragraphs and sentences of like seditious nature.
Nay, that from the New Testament he had actually read the Sermon on
the Mount, especially the Golden Rule and the summing of the Law and
the Prophets in one word, Love,--and had applied this to the case of
fugitive slaves; moreover, that he had read the xxvth chapter of
Matthew from the 31st to the 46th verse, with dreadful emphasis.
Nay, anti-slavery men--in lectures--and in speeches in the Music Hall,
which was built by pious people--and in Faneuil Hall, which was the
old Cradle of Liberty, had actually spoken against man-stealing,--and
even against some of the family of kidnappers in Boston!
Still further, he adds, with great solemnity, a woman--a negro
woman,--the actual wife of the criminal Nason--had brought
intelligence--to her husband--that Mr. George T. Curtis,--the brother
of the judge,--had issued his warrant--and Mr. Butman--"with a
monstrous watch"--was coming to execute it--she told her
husband,--and--incited him to his dreadful crime! If you find these
facts you must convict the prisoners.
So thirty or forty more are hanged for treason.
Gentlemen of the Jury, these fictitious cases doubtless seem
extravagant to you. I am glad they do. In peaceful times, in the
majority of cases there is no disagreement between the law, the judge,
and the jurors; the law is just, or at least is an attempt at justice,
the judge wishes to do justice by means thereof, and the jurors aim at
the same thing. In such cases there is no motive for doing wrong to
any person: so the judge fairly interprets the righteous and wholesome
law, the jurors willingly receive the interpretation and apply it to
the special case, and substantial justice is done. This happens not
only in civil suits between party and party, but also in most of the
criminal cases between the Public and the Defendant. But in times of
great political excitement, in a period of crisis and transition, when
one party seeks to establish a despotism and deprive some other class
of men of their natural rights, cases like those I have imagined
actually happen. Then there is a disagreement between the judge and
the jury; nay, often between the jury and the special statute
wherewith the government seeks to work its iniquity. It is on such
occasions that the great value of this institution appears,--then the
jury hold a shield over the head of their brother and defend him from
the malignity of the government and the Goliath of injustice,
appointed its champion to defy the Law of the living God, is smote in
the forehead by the smooth stone taken from a country brook, and lies
there slain by a simple rustic hand; for in such cases the jury fall
back on their original rights, judge of the Fact, the Law, and the
Application of the Law to the Fact, and do justice in spite of the
court, at least prevent injustice.
* * * * *
Now, Gentlemen of the Jury, I will mention some examples of this kind,
partly to show the process by which attempts have been made to
establish despotism, that by the English past you may be warned for
the American present and future; and partly that your function in this
and all cases may become clear to you and the Nation. The facts of
history will show that my fancies are not extravagant.
1. In April, 1554, just three hundred and one years ago this very
month, in England, Sir Nicolas Throckmorton, a gentleman of
distinguished family, was brought to trial for high treason. He had
held a high military office under Henry VIII. and Edward VI., but
"made himself obnoxious to the Papists, by his adherence to some of
the persecuted Reformers." With his two brothers he attended Anne
Askew to her martyrdom when she was burnt for heresy, where they were
told to "take heed to your lives for you are marked men." He was
brought to trial April 17th, 1554, the first year of Bloody Mary. Of
course he was allowed no counsel; the court was insolent, and demanded
his condemnation. But the jury acquitted him; whereupon the _court
shut the twelve jurors in prison_! Four of them made their peace with
the judges, and were delivered: but eight were kept in jail till the
next December, and then fined,--three of them £60 apiece, and five
£225 apiece.
This is one of the earliest cases that I find, where an English jury
in a political trial refused to return such a verdict as the tyrant
demanded.[121]
[Footnote 121: See the case in 1 St. Tr. 869, and 1 Jardine, 40, also
115. The great juridical attacks upon English Liberty were directed
against the Person of the Subject, and appear in the trials for
Treason, but as in such trials the defendant had no counsel, the great
legal battle for English Liberty was fought over the less important
cases where only property was directly concerned. Hence the chief
questions seem only to relate to money.]
2. In September, 1670, William Penn, afterwards so famous, and William
Mead, were brought to trial before the Lord Mayor of London, a
creature of the king, charged with "a tumultuous assembly." For the
Quaker meeting-house in Grace Church Street, had been forcibly shut by
the government, and Mr. Penn had preached to an audience of Dissenters
in the street itself. The court was exceedingly insolent and
overbearing, interrupting and insulting the defendants continually.
The jury found a special verdict--"guilty of speaking in Grace Church
Street." The judge sent them out to return a verdict more suitable to
the desire of the government. Again they substantially found the same
verdict. "This both Mayor and Recorder resented at so high a rate that
they exceeded the bounds of all reason and civility." The Recorder
said, "You shall not be dismissed till we have a verdict that the
court will accept; you shall be locked up without meat, drink, fire,
and tobacco; you shall not think thus to abuse the court; we will have
a verdict by the help of God, or you shall starve for it!" When Penn
attempted to speak, the Recorder roared out, "Stop that prating
fellow's mouth or put him out of court." The jury were sent out a
third time, and kept all night, with no food, or drink, or bed. At
last they returned a verdict of "not guilty," to the great wrath of
the court. _The judge fined the jurors forty marks apiece_, about
$140, _and put them in jail_ until they should pay that sum. The
foreman, Edward Bushel, refused to pay his fine and was kept in jail
until he was discharged on _Habeas Corpus_ in November. Here the
attempt of a wicked government and a cruel judge was defeated by the
noble conduct of the jurors, who dared be faithful to their duty.[122]
[Footnote 122: 6 St. Tr. 951; Dixon's Life of Penn; 22 St. Tr. 925.]
3. In 1681 an attempt was made to procure an indictment against the
Earl of Shaftesbury, for High Treason. The Bill was presented to the
Grand-Jury at London; Chief Justice Pemberton gave them the charge, at
the king's desire--it was Charles II. They were commanded to _examine
the evidence in public_ in the presence of the court, in order that
they might thus be overawed and forced to find a bill, in which case
the court had matters so arranged that they were sure of a conviction.
The court took part in examining the witnesses, attempting to make out
a case against the Earl. But the jury returned the bill with IGNORAMUS
on it, and so found no indictment. The spectators rent the air with
their shouts. The court was in great wrath, and soon after the king
seized the Charter of London, as I have already shown you, seeking to
destroy that strong-hold of Liberty. Shaftesbury escaped--the jury was
discharged. Why did not the court summon another jury, and the chief
justice put his brother-in-law on it? Roger Coke says, "But as the
knights of Malta could make knights of their order for eight pence a
piece, yet could not make a soldier or seaman; so these kings [the
Stuarts] though _they could make what judges they pleased_ to do their
business, _yet could not make a grand-jury_." For the grand-juries
were returned by the Sheriffs, and the sheriffs were chosen by the
Livery, the corporation of London. This fact made the king desire to
seize the charter, _then he could make a grand-jury to suit himself_,
out of the kinsfolk of the judge.[123]
[Footnote 123: 8 St. Tr. 759, see the valuable matter in the notes,
also 2 Hallam, 330 and notes.]
4. Next comes the remarkable case of the Seven Bishops, which I have
spoken of already.[124] You remember the facts, Gentlemen. The king,
James II., in 1688, wishing to overturn Protestantism--the better to
establish his tyranny--issued his notorious proclamation, setting
aside the laws of the land and subverting the English Church. He
commanded all Bishops and other ministers of religion to read the
illegal proclamation on a day fixed. Seven Bishops presented to him a
petition in most decorous language, remonstrating against the
Proclamation, and asking to be excused from reading it to their
congregations. The king consulted with Father Petre,--a Jesuit, his
confessor--on the matter, and had the bishops brought to trial for a
misdemeanor, for publishing "a seditious libel in writing against his
majesty and his government." It was "obstructing an officer."
[Footnote 124: See above, p. 32.]
Then the question before the trial-jury was, Did the seven bishops, by
presenting a petition to the king--asking that they might not be
forced to do an act against the laws of England and their own
consciences--commit the offence of publishing a seditious libel; and,
Shall they be punished for that act? All the judges but two, Holloway
and Powell, said "Yes," and the jury were so charged. But the jury
said, "Not guilty." The consequence was this last of the Stuarts was
foiled in his attempt to restore papal tyranny to England and
establish such a despotism as already prevailed in France and Spain.
Here the jury stood between the tyrant and the Liberties of the
People.
Gentlemen of the Jury, let me show you how that noble verdict was
received. Soon as the verdict was given, says Bishop Burnet, "There
were immediately very loud acclamations throughout Westminster Hall,
and the words 'Not guilty,' 'Not guilty,' went round with shouts and
huzzas; thereat the King's Solicitor moved very earnestly that such as
had shouted in the court might be committed. But the shouts were
carried on through the cities of Westminster and London and flew
presently to Hounslow Heath, where the soldiers in the camp echoed
them so loud that it startled the king."[125] "Every man seemed
transported with joy. Bonfires were made all about the streets, and
the news going over the nation, produced the like rejoicings all
England over. The king's presence kept the army in some order. But he
was no sooner gone out of the camp, than he was followed with an
universal shouting, as if it had been a victory obtained."[126] "When
the Bishops withdrew from the court, they were surrounded by countless
thousands who eagerly knelt down to receive their blessing." Of course
the two judges who stood out for the liberties of the citizens, were
removed from office!
[Footnote 125: 12 St. Tr. 430.]
[Footnote 126: Burnet's Own Times, 470. See also 2 Campbell, Justices,
89, _et seq._]
5. Here is another remarkable case, that of William Owen, in 1752.
These are the facts. In 1750 there was a contested election of a
member of Parliament for Westminster. Hon. Alexander Murray, an
anti-ministerial member of the Commons, was denounced to the House for
his conduct during the election, and it was ordered that he should be
confined a close prisoner in Newgate, and that he receive his sentence
on his knees. He refused to kneel, and was punished with great cruelty
by the bigoted and intolerant House. Mr. Owen, who was a bookseller,
published a pamphlet, entitled "The Case of Alexander Murray, Esq.,"
detailing the facts and commenting thereon. For this an information
was laid against him, charging him with publishing a "wicked, false,
scandalous, seditious, and malicious libel."
On the trial, the Attorney-General, Ryder, thus delivered himself:--
"What!--shall a person appeal from that Court, who are the
only judges of things belonging to them, the House of
Commons I mean. An appeal! To whom? To a mob? Must Justice
be appealed from? To whom? To injustice? Appeal to 'the good
people of England,' 'particularly the inhabitants of
Westminster'! The House of Commons are the good people of
England, being the representatives of the people. The rest
are--what? Nothing--unless it be a mob. But the clear
meaning of this libel was an _appeal to violence_, in fact,
and to stigmatize the House." "Then he charges the House
with sinking material evidence; which in fact is accusing
the House of injustice. This is a charge the most shocking;
the most severe, and the most unjust and virulent, against
the good, the tender House of Commons; that safeguard of our
liberty, and guardian of our welfare."
"This libel ... will be found the most powerful invective
that the skill of man could invent. I will not say the
skill, but the wit, art, and false contrivance of man,
instigated by Satan;" "to say that this is not a libel, is
to say that there is no justice, equity, or right in the
world."
The Solicitor-General told the Jury that they were only to inquire _if
Mr. Owen published the pamphlet_, "_the rest follows of course_;" "you
are upon your oaths; you judge of the facts ... and _only them_."
Chief Justice Lee summed up the evidence "and delivered it as his
opinion, that the _Jury ought to find the defendant guilty;_ for he
thought the _fact of publication was fully proved; and if so they
could not avoid bringing in the defendant guilty_."
The jury returned, "Not guilty;" but Ryder, the Attorney-General, put
this question, Do you think the evidence is not sufficient to convince
you that _Owen did sell the book_? The foreman stuck to his general
verdict, "Not guilty," "Not guilty;" and several of the jurymen said,
"that is our verdict, my lord, and we abide by it." "Upon which the
court broke up, and there was a prodigious shout in the hall." Then
"the Jury judged as to facts, law, and justice of the whole, and
therefore did not answer the leading question which was so artfully
put to them."[127] Of course the insolent Attorney-General was soon
made "Lord Chief Justice," and _rode_ the bench after the antiquated
routine.
[Footnote 127: 18 St. Tr. 1203; 14 Parl. Hist. 888, 1063; 3 Hallam,
200; 2 Campbell, Justices, 198.]
This was the third great case in which the Jury had vindicated the
right of speech.
6. Here is another case very famous in its day, and of great value as
helping to establish the rights of juries, and so to protect the
natural right of the citizens--the Trial of John Miller for reprinting
Junius's Letter to the King, in 1770.
Here are the facts. Mr. Miller was the publisher of a newspaper called
the _London Evening Post_, and therein, on December 19, 1769, he
reprinted Junius's celebrated Letter to the King. For this act, an
information _ex officio_ was laid against him, wherein he was charged
with publishing a false, wicked, seditious, and malicious libel. A
suit had already been brought against Woodfall, the publisher of the
_Public Advertiser_, in which the letter originally appeared, but the
prosecution had not turned out to the satisfaction of the government,
nor had the great question been definitely settled. So this action was
brought against Mr. Miller, who reprinted the original letter the day
of its first appearance.[128]
[Footnote 128: 20 St. Tr. 803, 895, 869; Woodfall's Junius (Bohn,
1850), Preface, p. 94, Appendix, p. 471; 2 Campbell, Justices, 363; 5
Mahon.]
Solicitor-General Thurlow,--whom you have met before,
Gentlemen,--opened the case for the Crown, and said:--
"I have not of myself been able to imagine ... that there is
a serious man of the profession in the kingdom who has the
smallest doubt whether this ought to be deemed a libel or
not;" "for I neither do, nor ever will, attempt to lay
before a jury, a cause, in which I was under the necessity
of stating a single principle that went to intrench, in the
smallest degree, upon the avowed and acknowledged liberty of
the subjects of this country, even with regard to the press.
The complaint I have to lay before you is that that liberty
has been so abused, so turned to licentiousness, ... that
under the notion of arrogating liberty to one man, that is
the writer, printer, and publisher of this paper, they do
... annihilate and destroy the liberty of all men, more or
less. Undoubtedly the man that has indulged the _liberty of
robbing upon the highway_, has a very considerable portion
of it allotted to him." The defendant "has published a
paper, in which, concerning the King, concerning the House
of Commons, and concerning the great officers of State,
concerning the public affairs of the realm, there are
uttered things of such tendency and application as ought to
be punished." "When we are come to that situation, when it
shall be lawful for any men in this country to speak of the
sovereign [George III.] in terms attempting to fix upon him
such contempt, abhorrence, and hatred, there is an end of
all government whatsoever, and then liberty is indeed to
shift for itself." He quotes from the paper: "'He [the king]
has taken a decisive personal part against the subjects of
America, and those subjects know how to distinguish the
sovereign and a venal Parliament, upon one side, from the
real sentiments of the English nation upon the other.' For
God's sake is that no libel? To _talk of the king as taking
a part of an hostile sort against one branch of his
subjects_, and at the same time to _connect him ... with the
parliament which he calls a venal parliament_; is that no
libel?"
Lord Mansfield,--the bitterest enemy of the citizens' right of speech
and of the trial by jury,--charged upon the jury, "The question for
you to try ... is, whether the _defendant did print_, or publish, or
both, a _paper of the tenor_, and of the meaning, so _charged by the
information_." "If it is of the tenor and meaning set out in the
information, the next consideration is, whether he _did print and
publish it_." "If you ... find the defendant not guilty, the fact
established by that verdict is, _he did not publish a paper of that
meaning_;" "the fact finally established by your verdict, if you find
him guilty, is, that _he printed_ and published a _paper, of the
tenor_ and of the meaning set _forth in the information_;" "but you do
_not give an opinion ... whether it is or not lawful to print a paper_
... of the tenor and meaning in the information;" "if in point of fact
it is innocent, it would be an innocent thing."
Thus practically the judge left the jury only one thing to determine,
Did Mr. Miller print Junius's letter to the king? That was a fact as
notorious as it now is in Boston that the _Daily Advertiser_ supported
the fugitive slave bill, and helped its execution, for the letter to
the king was there in Mr. Miller's journal as plainly as those
defences of the fugitive slave bill were in the _Advertiser_. If the
jury said "guilty," the court had the defendant in their claws,--and
all the wrath of the most malignant tories would fall on him and rend
him in pieces. But the jury fell back on their legitimate function to
determine the Fact, the Law, and the Application of the law to the
fact, and returned a verdict, Not Guilty, which a great multitude
repeated with loud acclaim!
* * * * *
7. Next, Gentlemen, I will relate a few cases in which the government
set all justice at defiance and clove down the right of speech,
commonly packing submissive juries. In 1790 and following years, while
the French Revolution was in progress, the thoughtful eyes of England
fell on the evils of her own country. America was already a Republic,
just recovering from the shock of violent separation from her
mother,--young, poor, but not unprosperous, and full of future promise
too obvious to escape the sagacious politicians who there saw a
cause--
"----with fear of change,
Perplexing Kings."
The people of France, by a few spasmodic efforts, broke the threefold
chain of Priest, King, and Noble, and began to lift up their head. But
Saxon England is sober, and so went to work more solemnly than her
mercurial neighbor. And besides, the British people had already a
firm, broad basis of personal freedom to stand on. Much was thought,
written, and spoken about reform in England, then most desperately
needing it. The American Revolution had English admirers whom no
courts could silence. Nay, at first the French Revolution delighted
some of the ablest and best men in Britain, who therein beheld the
carrying out of the great Principles which Aristotle and Machiavelli
had laid down as the law of the historical development and social
evolution of mankind. They wished some improvement in England itself.
But of course there was a strong opposition made to all change.
Parliament refused to relieve the evils which were made obvious. The
upper House of Nobles was composed of the Elder Sons of the families
which had a social and pecuniary interest in oppressing the people,
and the lower House "consisted mainly of the Younger Sons of the same
families, or still worse the purchased dependents" of their families.
Societies were organized for Reform, such as the "London Corresponding
Society," "the Friends of the People," etc., etc. The last mentioned
contained many literary, scientific, and political men, and about
thirty members of Parliament. Great complaints were made in public at
the inequality of Representation in Parliament. Stormy debates took
place in Parliament itself--such as we have not yet heard in America,
but which wicked and abandoned men are fast bringing upon us. Pitt and
Fox were on opposite sides.
"----and such a frown
Each cast at the other, as when two black clouds,
With Heaven's artillery fraught, come rattling on
Over the Caspian, then stand front to front,
Hovering a space, till winds the signal blow
To join their dark encounter in mid air."
At that time the House of Commons was mainly filled with creatures of
a few powerful men; thus 91 commoners elected 139 members of the
commons, and 71 peers also elected 163; so 302 British members of
Parliament, besides 45 more from Scotland,--347 in all,--were returned
by 162 persons. This was called "Representation of the People." From
the party who feared to lose their power of tyranny, there went out
the decree, "Discussion on the subject of national grievances must be
suppressed, in Parliament and out of Parliament." Violent attempts
were made to suppress discussion. In short, the same efforts were made
in England which were attempted in New York and Boston in 1850 and the
two following years, till they were ended by a little sprinkling of
dust. But in Britain the public mind is harsher than ever in America,
and the weapons which broke in the hand of Old England were much more
formidable than that which here so suddenly snapped, and with such
damage to the assassinating hand.
(1.) In 1792, John Lambert and two others published an advertisement
in the London Morning Chronicle, with which they were connected as
printers or proprietors, addressed "to the friends of free inquiry and
the general good," inviting them in a peaceful, calm, and unbiased
manner to endeavor to improve the public morals in respect to law,
taxation, representation, and political administration. They were
prosecuted, on _ex officio_ information, for a "false, wicked,
scandalous, and seditious libel." The government made every effort to
secure their conviction. But it failed.[129]
[Footnote 129: 22 St. Tr. 923.]
(2.) The same year, Duffin and Lloyd, two debtors in the Fleet Prison,
one an American citizen, wrote on the door of the prison chapel "this
house to let; peaceable possession will be given by the present
tenants on or before the first day of January, 1793, being the
commencement of liberty in Great Britain. The republic of France
having rooted out despotism, their glorious example and success
against tyrants renders infamous Bastiles no longer necessary in
Europe." They also were indicted for a "wicked, infamous, and
seditious libel," and found guilty. Lloyd was put in the pillory![130]
[Footnote 130: 2 St. Tr. 1793.]
(3.) In 1793, Rev. William Frend, of the University of Cambridge,
published a harmless pamphlet entitled "Peace and Union recommended to
the associated bodies of Republicans and anti-Republicans." He was
brought to trial, represented as a "heretic, deist, infidel, and
atheist," and by sentence of the court banished from the
university.[131]
[Footnote 131: 22 St. Tr. 523.--So late as 1820, the chief justice
punished an editor with a fine of £500, for publishing an account of a
trial for high treason. See 33 St. Tr. 1564, also 22 St. Tr. 298; 2
Campbell, Justices, 363, 371 _et al._]
(4.) The same year, John Frost, Esq., "a gentleman" and attorney, when
slightly intoxicated after dinner, and provoked by others, said, "I am
for equality. I see no reason why any man should not be upon a footing
with another; it is every man's birthright." And when asked if he
would have no king, he answered, "Yes, no king; the constitution of
this country is a bad one." This took place in a random talk at a
tavern in London. He was indicted as a person of a "depraved, impious,
and disquiet mind, and of a seditious disposition, and contriving,
practising, and maliciously, turbulently, and seditiously intending
the peace and common tranquillity of our lord the king and his laws to
disturb," "to the evil example of all others in like case offending."
He was sentenced to six months in Newgate, and one hour in the
pillory! He must find sureties for good behavior for five years,
himself in £500, two others in £100 each, be imprisoned until the
sureties were found, and be struck from the list of attornies![132]
[Footnote 132: 22 St. Tr. 471.]
(5.) Rev. William Winterbotham, the same year, in two sermons, exposed
some of the evils in the constitution and administration of England,
and for that was fined £200, and sentenced to jail for four years,--a
good deal more than $300 and twelve months' imprisonment.[133]
[Footnote 133: Ibid. 823.]
(6.) The same year, Thomas Briellat, a London pump-maker, in a private
conversation said, "A reformation cannot be effected without a
revolution; we have no occasion for kings; there never will be any
good time until all kings are abolished from the face of the earth; it
is my wish that there were no kings at all." "I wish the French would
land 500,000 men to fight the government party." He was tried, found
guilty, and sentenced to a fine of £100, and sent to jail for a
year.[134]
[Footnote 134: Ib. 909.]
(7.) Richard Phillips, afterwards Sheriff of London, was sent to jail
for eighteen months for selling Paine's Rights of Man; for the same
offence two other booksellers were fined and sent to Newgate _for four
years_! A surgeon and a physician were sent to Newgate for two years
for having "_seditious libels in their possession_." Thirteen persons
were indicted at once.[135]
[Footnote 135: Ibid. 471. Wade, Brit. Hist. (1847), 582, _et seq._]
(8.) In 1793 a charge was brought against the Rev. Thomas Fyshe
Palmer, formerly a Senior Fellow of Queen's College, Cambridge, and
then a Unitarian minister at Dundee. Mr. Palmer wrote an Address which
was adopted at a meeting of the Friends of Liberty and published by
them, which, in moderate language, called on the People "to join us in
our exertions for the preservation of our perishing liberty, and the
recovery of our long lost rights." He distributed copies of this
address. He was prosecuted for "Leasing-making," for publishing a
"seditious and inflammatory writing." The (Scotch) jury found him
guilty, and the judges sentenced him to _transportation for seven
years_. The sentence was executed with rigorous harshness.[136]
[Footnote 136: 23 St. Tr. 237; Belsham's History of George III.]
(9.) The same year Thomas Muir, Esq., was brought to trial for
Leasing-making or public Libel at Edinburgh. He was a promising young
lawyer, with liberal tendencies in politics, desiring the education of
the great mass of the people and a reform in Parliament. He was a
member of various Reform societies, and sometimes spoke at their
meetings in a moderate tone recommending only legal efforts--by
discussion and petition--to remedy the public grievances. His Honor
(Mr. Curtis) who belongs to a family so notoriously "democratic" in
the beginning of this century, and so eager in its denunciations of
the Federalists of that period, knows that the law even of
England--which they so much hated--allows all that. It appeared that
Mr. Muir also lent a copy of Thomas Paine's "Rights of Man" to a
mechanic who asked the loan as a favor. For these offences he was
indicted for sedition, charged with instituting "a Society for
Reform," and with an endeavor "to represent the government of this
country as oppressive and tyrannical, and the legislative body as
venal and corrupt." It was alleged in the indictment that he
complained of the government of England as "costly," the monarchy as
"useless, cumbersome, and expensive," that he advised persons to read
Paine's Rights of Man, and circulated copies of a periodical called
"the _Patriot_," which complained of the grievances of the people. On
trial he was treated with great insolence and harshness, reprimanded,
interrupted, and insulted by the agents of the government--the court.
An association of men had offered a reward of five guineas for the
discovery of any person who circulated the writings of Thomas Paine.
Five of the fifteen jurors were members of that association,--and in
Scotland a bare majority of the jurors convicts. Mr. Muir defended
himself, and that ably. Lord Justice Clark charged his packed jury:--
"There are two things which you should attend to, which
require no proof. The first is that the British Constitution
is the _best in the world_!" "Is not every man _secure in
his life, liberty, and property? Is not happiness in the
power of every man?_ 'Does not every man sit safely under
his own vine and fig-tree' and none shall make him afraid?"
"The other circumstance ... is the state of the country
during last winter. _There was a spirit of sedition and
revolt going abroad._" "I leave it for you to judge whether
it was perfectly innocent or not in Mr. Muir ... to go about
... among _the lower classes of the people ... inducing them
to believe that a reform was absolutely necessary, to
preserve their safety and their liberty_, which, had it not
been for him, they never would have suspected to have been
in danger." "He ran a parallel between the French and
English Constitutions, and _talked of their respective
taxes_ ... and gave a preference to the French." "He has
brought many witnesses to prove his general good behavior,
and his recommending peaceable measures, and petitioning to
Parliament." "Mr. Muir might have known that _no attention
could be paid to such a rabble, what right had they to
representation_? He could have told them the _Parliament
would never listen to their petition_! How could they think
of it? A government in any country should be just like a
corporation; and in this country it is _made up of the
landed interest, which alone has a right to be
represented_."
Gentlemen, you might think this speech was made by the "Castle Garden
Committee," or at the Boston "Union Meeting" in 1850, but it comes
from the year 1793.
Of course the jury found him guilty: the judges sentenced him to
_transportation for fourteen years_! Lord Swinton quoted from the
Roman law, that the punishment for sedition was _crucifixion_, or
exposure _to be torn to pieces by wild beasts_, or transportation. "We
have chosen the _mildest of these punishments_." This sentence was
executed with great cruelty. But Mr. Pitt, then in the high places of
power, declared these punishments were dictated by a "sound
discretion."[137]
[Footnote 137: 23 St. Tr. 117; 30 Parl. Hist. 1486, for Adams' Speech
in Commons.]
For like offences several others underwent the same or similar
punishment. But these enormities were perpetrated by the government in
Scotland--where the Roman Law had early been introduced and had
accustomed the Semi-Saxons to forms of injustice foreign to the
ethnologic instinct and historic customs of the parent tribe. But
begun is half done. Emboldened by their success in punishing the
friends of Humanity in Scotland, the ministry proceeded to attempt the
same thing in England itself. Then began that British Reign of Terror,
which lasted longer than the French, and brought the liberties of the
People into such peril as they had not known since William of Orange
hurled the last of the Stuarts from his throne. Dreadful laws were
passed, atrocious almost as our own fugitive slave bill. First came
"the Traitorous correspondence Bill;" next the "Habeas Corpus
Suspension Act;" and then the "Seditious Practices Act," with the
"Treasonable Attempts Bill" by legislative exposition establishing
constructive treason! All these iniquitous measures were brought
forward in Parliament by Sir John Scott--then Attorney-General, one of
those North Britons who find the pleasantest prospect in Scotland is
the road to London. He also was vehemently active in defending the
tyranny of the Scotch judges just referred to, as indeed all judicial
insolence and legal wrong.[138] He opposed all attempts to reform the
law which punished with death a theft of five shillings. In two years
there were more prosecutions for seditious libel than in twenty
before. But Scott had his reward, and was made Lord Chancellor in
1801, and elevated to the peerage as Lord Eldon.[139]
[Footnote 138: 30 Parl. Hist. 581; 31 Parl. Hist. 520, 929, 1153, _et
al._; 32 Parl. Hist. 370.]
[Footnote 139: 7 Campbell, 119; 1 Townsend's Judges; Life of Vic.
Gibbs.]
8. Then came that series of trials for high treason which disgraced
the British nation and glutted the sanguinary vengeance of the court.
The government suborned spies to feign themselves "radicals," join the
various Reform Societies, worm themselves into the confidence of
patriotic and philanthropic or rash men, possess themselves of their
secrets, catch at their words, and then repeat in court what they were
paid for fabricating in their secret haunts. A ridiculous fable was
got up that there was a plot to assassinate the King! Many were
arrested, charged with treason--"constructive treason." On the
evidence of spies of the government, hired informers--such men,
Gentlemen of Jury, as Commissioner Loring and Marshal Freeman jointly
made use of last year to kidnap Mr. Burns--estimable men were seized
and locked up in the most loathsome dungeons of the kingdom, with
intentional malignity confined amongst the vilest of notorious
criminals. The judges wrested the law, constructing libels, seditions,
"misdemeanors," treasons--any crime which it served their purpose to
forge out of acts innocent, or only rash or indiscreet. Juries were
packed by bribed sheriffs, and purchased spies were brought in
evidence to swear away the liberty or the life of noble men. One of
the government witnesses was subsequently convicted of ten perjuries!
No man was safe who dared utter a serious word against George III. or
Mr. Pitt.
Here, Gentlemen, I shall mention two cases of great importance in
which the jury did their duty and turned the stream of ministerial and
judicial tyranny.
(1.) In 1794 in a bill suspending the Habeas Corpus, Parliament
declared "that a treacherous and detestable conspiracy had been formed
for subverting the existing laws and constitution, and for introducing
the system of anarchy and violence which had lately prevailed in
France." Soon after the grand-jury for Middlesex indicted twelve men
for high treason; they were members of some of the Societies mentioned
just now. "The overt act charged against them was, that they had
engaged _in a conspiracy to call a convention_, the object of which
was to bring about a revolution in the country," but it was not
alleged that there was any plot against the King's life, or any
preparation for force.[140] Thomas Hardy, a shoemaker, was first
brought to trial. The trial began October 28, 1794, just sixty years
before Mr. Curtis's grand-jury found a bill against me. Sir John
Scott, the attorney-general, in opening the Prosecution, made a
_speech nine hours' long_, attempting to construct treason out of
belonging to a society. All who belonged to it were to be considered
guilty of "compassing the death of our Lord the King." Chief Justice
Eyre, in addressing the grand-jury, referred to the act of Parliament
as _proof of a conspiracy_.[141] Mr. Erskine defended Hardy in a
speech which "will live forever." Seldom had English Liberty been in
such peril; never did English lawyers more manfully defend it. The
jury, a London jury, returned "NOT GUILTY."[142] Gentlemen, the report
of the trial occupies more than twelve hundred pages in this
volume,[143] and it shook the nation. The British juries for a long
time had slept on their post, and allowed the enemy to enter the camp
and murder its inmates. But the trial of Hardy woke up those heedless
sentinels, and Liberty was safe--in England, I mean.
[Footnote 140: 6 Campbell, 366.]
[Footnote 141: 34 George III. c. 54.]
[Footnote 142: 24 St. Tr. 199; Annual Register, 1794, p. 274; 31 Parl.
Hist. 1062, _et al._]
[Footnote 143: 24 St. Tr.]
(2.) Still the infatuated government went on, not conscious of the
spirit of Anglo-Saxon liberty it had at last roused from long, heavy
and deathlike sleep, and eleven days after brought Mr. John Horne
Tooke to trial. You remember, Gentlemen, that on the first anniversary
of the Declaration of Independence, he was tried for publishing a
notice of a meeting which raised £100 for the widows and orphan
children of our citizens who fell at Lexington on the 19th of April,
1775, and for that offence was punished with fine and imprisonment.[144]
After the acquittal of Hardy, the government brought Mr. Tooke to
trial, relying on the same evidence to convict him which had so
signally failed a fortnight before. The overt act relied on to convict
him of "levying war" and "compassing the death of our Lord the King,"
was membership of a Reform society! Mr. Erskine defended him: "I
_will_ assert the freedom of an Englishman; I will maintain the
dignity of man, I will vindicate and glory in the principles which
raised this country to her preëminence among the nations of the earth;
and as she shone the bright star of the morning to shed the light of
liberty upon nations which now enjoy it, so may she continue in her
radiant sphere to revive the ancient privileges of the world which
have been lost, and still to bring them forward to tongues and people
who have never known them yet, in the mysterious progression of
things."[145]
[Footnote 144: See above, p. 35.]
[Footnote 145: 25 St. Tr. 1.]
Gentlemen, Horne Tooke was acquitted--the government routed and
overwhelmed with disgrace, gave up the other prosecutions, and the
treason trials ended. Even George III. had wit enough left to see the
blunder which his ministers--the Slave Power of England in 1794--had
committed, and stammered forth, "You have got us into the wrong box my
Lord [Loughborough]; you have got us into the wrong box. Constructive
treason won't do my Lord; constructive treason won't do." By and by,
Gentlemen, other men, wiser than poor feeble-minded George III., will
find out that "constructive _misdemeanors_ won't do."
Of these trials, Mr. Campbell, himself a Judge, declares, "This [the
conduct of the government] was more exceptionable in principle than
any thing done during the reign of Charles II.; for then the
fabricators of the Popish Plot did not think of corroborating the
testimony of Oates and Bedloe by a public statute; and then, if the
facts alleged had been true, they would have amounted to a plain case
of actual treason; whereas here, admitting the truth of all the facts
alleged, there was no pretence for saying that any treason
contemplated by the legislature had been committed. If this scheme had
succeeded, not only would there have been a sacrifice of life contrary
to law, but all political 'agitation' must have been extinguished in
England, as there would have been a precedent for holding that the
effort to carry a measure by influencing public opinion through the
means openly resorted to in our days, is a 'compassing the death of
the sovereign.' The only chance of escaping such servitude would have
been civil war. It is frightful to think of the perils to which the
nation was exposed.... But Erskine and the crisis were framed for each
other.... His contemporaries, who without him might have seen the
extinction of freedom among us, saw it, by his peculiar genius, placed
on an imperishable basis."[146] But Erskine without a Jury, Gentlemen,
what could he have done? He could only wail, O Jerusalem,
Jerusalem--when she would not!
[Footnote 146: 5 Campbell, 367.]
* * * * *
Now, Gentlemen, let us come over to this side of the water. I shall
mention some cases in which the Jury have manfully done their duty,
some others in which they have allowed themselves to be browbeaten and
bullied by a judge, and so have done the greatest wrong.
1. First look at the famous case of John Peter Zenger.[147] Here are
the facts. In 1733, Mr. Zenger established a newspaper in New
York--there was only one there before--called the "New York Weekly
Journal," "containing the freshest Advices foreign and domestic." In
some numbers of this he complained, modestly enough, of various
grievances in the administration of the Province, then ruled by
Governor Cosby. He said, "as matters now stand their [the People's]
liberties and properties are precarious, and that Slavery is likely
to be entailed on them and their posterity, if some past things be not
amended." He published the remarks of some one who said he "should be
glad to hear that the Assembly would exert themselves, as became them,
by showing that they have the interest of their country more at heart
than the gratification of any private view of any of their members, or
being at all affected by the smiles or frowns of a Governor, both
which ought equally to be despised when the interest of the country is
at stake." "We see men's deeds destroyed, judges arbitrarily
displaced, new courts erected without consent of the legislature, by
which, it seems to me, trials by juries are taken away when a Governor
pleases." "Who, then, in that province can call any thing his own, or
enjoy any liberty longer than those in the administration will
condescend to let him do it?"
[Footnote 147: 3 Doc. Hist. N.Y. p. 340, 341.]
In October, 1734, Chief Justice de Lancey gave a charge to the
Grand-Jury, urging them to indict Mr. Zenger for a libel. He says, "It
is a very high aggravation of a libel that it tends to scandalize the
government by _reflecting on those who are intrusted with the
administration of public affairs_, which ... has a direct tendency to
breed in the public a dislike of their Governors." "If he who hath
either read a libel himself, or hath heard it read by another, _do
afterwards_ maliciously _read or report any part of it in the presence
of others_, or _lend or show it to another, he is guilty of an
unlawful publication of it._"
But the Judge had not packed the Grand-Jury with sufficient care, and
so no bill was found. Thereupon the Governor's Council sent a message
to the General Assembly of New York, complaining of Mr. Zenger's
Journal as tending "to alienate the affections of the people of this
province from his majesty's government," and asking them to inquire
into the said papers and the authors thereof; the Council required
that the obnoxious numbers might "be _burned by the hands of the
common hangman or whipper, near the pillory_." The Assembly let them
lie on the table. The Court of Quarter-sessions was applied to to burn
the papers; but as that body refused, the sheriff "delivered them unto
the hands of _his own negro_, and ordered him to put them into the
fire, which he did."
Mr. Zenger was imprisoned by a warrant from the Governor, a _lettre de
cachet_, and "for several days denied the use of pen, ink, and paper,
and the liberty of speech with any person." An _ex officio_
information was brought against him, charging him with "malicious and
seditious libel." His counsel, Messrs. Alexander and Smith, took
exceptions to the proceedings. The Chief Justice would neither hear
nor allow the exceptions, "for" said he, "you thought to have gained a
great deal of applause and popularity by opposing this court ... but
you have brought it to that point, that either we must go from the
bench or you from the bar, therefore we exclude you." So "for contempt
of court" their names were struck from the list of attorneys. The case
came on for trial. The clerk of the Court sought to pack his jury, and
instead of producing the "Freeholders' book" to select the Jury from,
presented a list of forty-eight persons which he said he had taken
from that book. This Honorable Court knows how easy it is to violate
the law in summoning jurors; none knew it better a hundred and twenty
years ago. Of the 48 some were not freeholders at all; others held
commissions and offices at the Governor's pleasure; others were of the
late displaced magistrates who had a grudge against Mr. Zenger for
exposing their official conduct; besides, there were the governor's
baker, tailor, shoemaker, candle-maker, and joiner. But it does not
appear that this Judge had any Brother-in-law on the list; corruption
had not yet reached that height. But that wicked list was set aside
after much ado, and a Jury summoned in the legal manner. It may
astonish the Court but it was really done--and a Jury summoned
according to law. The trial went on. Andrew Hamilton of Philadelphia
defended Mr. Zenger with law, wit, learning, and eloquence. He
admitted the fact of printing and publishing the documents, and rested
the defence on the truth of their assertions. The Attorney-General,
Mr. Bradley, said, "supposing they were true, the law says that they
are not the less libellous for that: nay, indeed, the law says, _their
being true is an aggravation of the crime_." He "did not know what
could be said in defence of a man that had so notoriously scandalized
the governor and principal magistrates ... by _charging them with
depriving the people of their rights and liberties, and taking away
trials by juries, and in short putting an end to the law itself_. If
this was not a libel, he did not know what was one. Such persons as
did take these liberties ... ought to suffer for stirring up sedition
and discontent among the people."
The Chief Justice declared, "It is far from being a justification of a
libel that the contents thereof are true ... since the _greater
appearance there is of truth, so much the more provoking is it_!" "The
jury may find that Mr. Zenger printed and published these papers, and
_leave it to the court to judge whether they are libellous_!"
That would be to put the dove's neck in the mouth of the fox, and
allow him to decide whether he would bite it off. Mr. Hamilton
replied:--
"This of leaving it to the judgment of the court whether the
words are libellous or not, in effect renders Juries useless
(to say no worse), in many cases." "If the faults, mistakes,
nay even the vices of such a person be private and personal,
and don't affect the peace of the public, or the liberty or
property of our neighbor, it is unmanly and unmannerly to
expose them, either by word or writing. But, when a ruler of
the people brings his personal failings, but much more his
vices, into his administration, and the people find
themselves affected by them, either in their liberties or
properties, that will alter the case mightily; and all the
high things that are said in favor of rulers and of
deputies, and upon the side of power, will not be able to
stop people's mouths when they feel themselves oppressed, I
mean in a free government. It is true _in times past it was
a crime to speak truth_; and in that terrible court of
Star-Chamber many worthy and brave men suffered for so
doing; and yet even in that court, and in those bad times, a
great and good man durst say, what I hope will not be taken
amiss of me to say in this place, namely, 'The practice of
informations for libels is a sword in the hands of a wicked
king, and an arrant coward, to cut down and destroy the
innocent; the one cannot because of his high station, and
the other dares not, because of his want of courage, redress
himself in another manner.'
"It is a right which all persons claim and are entitled to,
to complain when they are hurt; they have a right publicly
to remonstrate against the abuses of power, in the strongest
terms; to put their neighbors upon their guard against the
craft or open violence of men in authority; and to assert
with courage the sense they have of the blessings of
liberty, the value they put upon it, and their resolution at
all hazards to preserve it as one of the greatest blessings
Heaven can bestow." "It is a duty which all good men owe to
their country, to guard against the unhappy influence of ill
men when intrusted with power, and especially against their
creatures and dependants, who as they are generally more
necessitous, are surely more covetous and cruel."
According to the Judge the Jury had only one question before them,
"Did Zenger publish the words charged in the information?" That fact
was clear; nay, he did not himself deny it. He confessed it in court.
But the jury fell back on their rights and duties to decide the
Question of Fact, of Law, and of the Application of the Law to the
Fact, and returned "NOT GUILTY," "upon which there were three huzzas
in the Hall." Had this Honorable Court been then in existence I
suppose it would have talked of indicting the jurors for "perjury,"
and would doubtless have had its labor for its pains. For the Common
Council of New York presented Mr. Hamilton with a costly gold box and
the freedom of the city. Gentlemen, this took place one hundred and
twenty years ago. Forty years before the Revolution, Andrew Hamilton
helped lay the "brilliant foundation of liberty," whereon another
Hamilton was also to raise up noble walls of freedom. Gentlemen of the
Jury, by Wisdom is a house builded, but the foolish plucketh it down
with her own hands. Will you allow that to be done? What if the jury
in 1735 had been faithless? The axe which smote down Zenger in New
York, bloody and cruel, would have shorn off the heads of Otis and
Quincy, and Adams and Hancock at Boston; the family of Scroggs alone
would be held in honor in New England.[148]
[Footnote 148: 17 St. Tr. 675.]
Gentlemen, it once happened in New York that Governor Nicholson was
offended with one of the clergymen of the Province. He met him on the
road one day, and "as it was usual with him (under the protection of
his commission) used the poor minister with the worst of language,
threatened to cut off his ears, slit his nose, and at last to shoot
him through the head." The minister, "being a reverend man, continued
all this time uncovered in the heat of the sun, until he found an
opportunity to fly for it, and coming to a neighbor's house fell ill
of a fever and wrote for a doctor," relating the facts and concluding
that the governor was crazy, for no man in his right mind would behave
so ill. The doctor showed the letter; the governor brought a
prosecution against the minister for publishing a "scandalous, wicked,
and seditious libel." No doubt he could have found a judge even then
who would twist the law so as to make the letter "sedition" and
"libel;" nay, perhaps he could construct a jury so as to secure a
conviction, but before it reached trial the prosecution was stopped by
the order of Queen Anne.
2. In 1816, in Massachusetts, there occurred the celebrated case of
Commonwealth _vs._ Bowen, to which I shall again refer in a subsequent
part of this defence. These are the facts. In September, 1815,
Jonathan Jewett was convicted of murder in Hampshire county,
Massachusetts, and sentenced to be hanged on the 9th of the following
November. He was confined at Northampton, and hung himself in his cell
on the night preceding the morning appointed for his public execution.
George Bowen was confined in the same jail, in an apartment adjacent
to Jewett's, and in such a situation that they could freely converse
together. Bowen repeatedly and frequently advised and urged Jewett to
destroy himself and thus disappoint the sheriff and the expectant
people. He did so, and the coroner's jury returned that he committed
suicide. But nevertheless, Bowen was indicted for the wilful murder of
Jewett. It was charged that he "feloniously, wilfully, and of his
malice aforethought, did counsel, hire, persuade, and procure the said
Jewett the said felony and murder of himself to do and commit;" or
that he himself murdered the said Jewett by hanging him.
At the trial Attorney-General Perez Morton contended that Bowen "was
guilty of _murder as principal_;" and he cited and relied chiefly on
the following authority from the Reports of our old friend Kelyng.
"Memorandum, that my brother _Twisden_ showed me a report
which he had of a charge given by Justice _Jones_ to the
grand-jury, at the King's Bench barre, _Michaelmas Term_, 9
_Car._ 1, in which he said, that poisoning another was
murder at common law. And the statute of 1 _Ed._ 6, was but
declaratory of the common law, and an affirmation of it. If
one drinks poison by the provocation of another, and dieth
of it, this is murder in the person that persuaded it. And
he took this difference. If A. give poison to J.S. to give
to J.D., and J.S. knowing it to be poison, give it to J.D.
who taketh it in the absence of J.S., and dieth of it; in
this case J.S., who gave it to J.D., is principal; and A.
who gave the poison to J.S., and was absent when it was
taken, is but accessory before the fact. But if A. buyeth
poison for J.S., and J.S., in the absence of A., taketh it
and dieth of it, in this case A., though he be absent, yet
he is principal. So it is if A. giveth poison to B. to give
unto C.; and B., not knowing it to be poison, but believing
it to be a good medicine, giveth it to C., who dieth of it;
in this case A., who is absent, is principal, or else a man
should be murdered, and there should be no principal. For
B., who knoweth nothing of the poison, is in no fault,
though he gave it to C. So if A. puts a sword into the hands
of a madman, and bids him kill B. with it, and then A. goeth
away, and the madman kills B. with the sword, as A.
commanded him, this is murder in A., though absent, and he
is principal; for it is no crime in the madman, who did the
fact by reason of his madness."[149]
[Footnote 149: See the case in Kelyng's Reports (London, 1708), p. 52.
The opinion of Justice _Jones_ was only the charge of an inferior
judge given to the grand-jury in 1634.]
Mr. Morton also laid down this as law, "_the adviser of one who
commits a felony of himself is a murderer_." He might have added, "the
adviser of one who breaks into his own house is a burglar."
Chief Justice Parker--who once declared that the jury had nothing to
do with the harshness of a law--charged the jury that the important
question for them was, Did Bowen's advice induce Jewett to kill
himself? if so, they were to find him guilty of wilful murder! "The
community has an interest _in the public execution_ of criminals [the
crowd having an _interest in the spectacle_] and to take such an one
out of the reach of the law [by advising him to self-destruction] is
no trivial offence." "_You are not to consider the atrocity of this
offence in the least degree diminished by the consideration that
justice was thirsting for its sacrifice_; and that but a small portion
of Jewett's earthly existence could, in any event, remain to
him."[150]
[Footnote 150: 13 Mass. Rep. 356.]
There was no doubt that Bowen advised Jewett to commit suicide; but
the jury, in defiance of the judge's charge and Mr. Kelyng's law,
nevertheless returned "NOT GUILTY."
Here, Gentlemen, is a remarkable instance of a judge, in private a
benevolent man, perverting his official power, and constructing the
crime of murder out of advice given to a man to anticipate a public
execution by privately hanging himself! The law relied on was the
Memorandum of the charge to a grand-jury made by a judge who
notoriously broke the fundamental laws of England, by declaring that
the king had a constitutional right to imprison, at will and as long
as he liked, any of his subjects without trial, even members of
Parliament for words uttered in public debate; and also the right to
levy ship-money contrary to the Acts of Parliament. This charge was
made in the tyrannical reign of Charles I. in 1634, by a tyrannical
judge. There was no report, only _a memorandum_ of it, and that not
printed till seventy-four years after! It had not the force of law
even then: it was only the memorandum of the "opinion" of a single
judge, not even the "opinion" of the full court. The memorandum is
contained in Kelyng's Book, which Lord Campbell calls "a folio volume
of decisions in criminal cases, which are of no value whatever, except
to make us laugh at some of the silly egotisms with which they
abound."[151] On such authority in 1816 would even a Massachusetts
court, with a judge who was a kindly man in private, dash away the
life of a fellow-creature,--with such mockery of law! But, Gentlemen,
the jury at that time did not slumber; they set the matter right, and
did justice spite of Judge Kelyng and his "law." They made nothing of
the judge's charge!
[Footnote 151: 2 Campbell, Judges, 406.]
* * * * *
Gentlemen of the Jury, I will now mention some cases of gross
injustice perpetrated by the Federal Courts of the United States.
The tenth article of amendments to the Constitution provides that
"powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the People." The Constitution itself confers no
Common Law Jurisdiction on the Government. Neither the People nor
their Representatives had ever decreed the Common Law of England to be
a part of the law of the United States. Yet, spite of the absence of
positive enactment and the express words of the above amendment to the
Constitution, the Supreme Court at once assumed this jurisdiction. In
1799, Chief Justice Ellsworth said, "the Common Law of this country
remains the same as it was before the Revolution;"[152] and proceeded
on that supposition to exercise the powers of English Judges of Common
Law, undertaking to punish men for offences which no Act of Congress
forbid. You see at once what monstrous tyranny would follow from that
usurpation. Had the English Common Law power of punishing for
"seditious libel," for example, been allowed to the Federal court,
Gentlemen, you know too well what would follow. But this monstrous
assumption was presently brought to an ignominious end; and strange as
it may appear, by one of the judges of the court itself. Samuel Chase
of Maryland, one of the signers of the Declaration of Independence,
had been an Anti-Federalist and a strong State-Right's man, as such
insisting on a strict construction of the Constitution. Singular as it
may appear he was made a Judge in 1796, and what is yet more
surprising, in 1798, declared "the United States as a Federal
government, had no Common Law," and thus ended this claim.[153] But
tyranny did not end; nay, he himself, a man of uncommon powers and
legal attainments, became a most atrocious example of Judicial
despotism.
[Footnote 152: Wharton, State Trials, 653. See too Virginia
Resolutions (Richmond, 1850), Preface, xiii. _et seq._; Virginia
Resolutions by Madison, and his Report thereon; Kentucky Resolutions
by Jefferson, in 4 Eliot's Debates (1836).]
[Footnote 153: Wharton, 197; 3 Dallas, 384; see 5 Hildreth, 230.]
1. In 1791 a direct tax was levied by Act of Congress on all lands and
houses; excise officers were to ascertain their value. The "Alien and
Sedition Laws" were also passed the same year. The execution of the
law relative to the direct tax was resisted in Northampton county,
Penn., and some prisoners rescued from an officer of the United
States. The President, Mr. Adams, issued his proclamation. In 1799
John Fries was arrested on the charge of treason. The overt act
alleged was resistance to that one special law of Congress. Judge
Iredell charged the Grand-Jury, "You have heard the government as
grossly abused as if it had been guilty of the vilest tyranny." Had he
read the private correspondence of the Cabinet, he might have found
other specimens of "abuse." He defended both the Alien and Sedition
Laws.--They were "constitutional" and "proper."[154]
[Footnote 154: See a defence of them in 2 Gibbs's Administration, 74,
78; also 162.]
Mr. Fries was indicted for treason. The Judiciary Act of Congress of
1789 provides that "in cases punishable with death the trial shall be
had in the county where the offence was committed; or when that cannot
be done without great inconvenience, twelve petit jurors at least
shall be summoned from thence." The offence was committed in
Northampton county, and he was indicted and brought to trial in
Philadelphia county, nor could the court be induced to comply with the
statute!
The government laid down the law and constructed treason with the
usual ingenuity of officials working by the job. Judge Kelyng's loose
opinion that an attack on a brothel was high treason, was cited by Mr.
Rawle, the District Attorney, as good law.[155] What "in England is
called constructive levying of war, in this country must be called
direct levying of war." Judge Peters charged that though force was
necessary to constitute the crime of treason, yet "the quantum of
force is immaterial," of course it may be wielding a wheat straw, or a
word, I suppose. "The doctrine of constructive treason has produced
much real mischief in another country" [England]. "The _greater part
of the objections to it are irrelevant here_."
[Footnote 155: Wharton, 539; Kelyng, R. 70, 75.]
Fries was found guilty. His counsel moved for a new trial, on the
ground that before the trial one of the jurors had declared, "Fries
ought to be hung;" "I myself shall be in danger unless we hang them
all;" that the jurors were irregularly drawn, and the trial was not
held in the county where the offence was committed. Judge Iredell
ruled that it was "_a high contempt_ at this time _to call for a
renewal of an argument whereon a solemn, decisive opinion was
delivered_." Judge Peters declared the juror had "said no more than
all friends to the laws and the government were warranted in thinking
and saying." Yet a new trial was granted.
The new trial was held before Judge Chase, who had, as Mr. Wharton
says, a "singular instinct for tumults which scents it at a distance
... and irresistibly impels a participation in it," "moving
perpetually with a mob at his heels." Yet "apart from his criminal
jurisdiction he was reckoned a wise and impartial judge, a master of
the Common Law, and a thorough and indefatigable administrator of
public functions." "It was this despotic ardor of temperament ...
which made him, when a young man, employ with resolute audacity the
engine of popular revolt, and which led him when older, and when in
possession of that power against which he had so steadily warred, to
wield with the same vigor the sword of constituted authority."[156]
Gentlemen, he was like many that this Honorable Court perhaps have
known, who were privateering Democrats in 1812, and Kidnapping Whigs
in 1850. To him we are indebted for the invaluable decision that the
United States courts have no Common Law jurisdiction.
[Footnote 156: 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419.]
At this new trial he treated the defendants' counsel in such a manner
that they abandoned the case, and left the Prisoner without defence.
The District Attorney, taking his law from Kelyng and similar servants
of British despots, laid it down that treason "may consist in
_assembling together in numbers_, and by actual force, or by terror,
_opposing any particular law_;" "_Force need not be used_ to manifest
this spirit of rebellion." "Even _if the matter made a grievance of
was illegal, the demolition of it_ in this way _was_, nevertheless,
_treason_," "a rising with intent by force to prevent the execution of
a law ... preventing the marshal executing his warrants, and
preventing the other officers ... amounted to levying war." "In short
an opposition to the acts of Congress in whole or in part [that is to
_any one law_] ... either by collecting numbers, or by a display of
force ... which should operate ... either throughout the United
States, or in _any part thereof to procure a repeal or a suspension_
of the law ... this offence be considered to be _strictly_ treason."
Judge Chase laid it down as law not to be questioned in his court,
"that any ... rising of any body of the people ... to attain by force
... any object of a great public nature ... is a levying of war:"
"any such ... rising to resist ... the execution of any statutes of
United States ... or for any other object of a general nature or
national concern, under any pretence as that the statute was unjust
... or unconstitutional is a levying war;" "_any force ... will
constitute the crime_ of levying war."
If that be law, then an old negro woman who, with a dishcloth,
frightens officer Butman away from kidnapping her granddaughter in
Southac street, does thereby levy war against the United States and
commits the crime of treason.
The jury, overborne by the assumptions of the judge, or ignorant of
their duties and their rights, allowed this tyrannical court to have
its way, surrendered the necks of the people, and brought in a verdict
of guilty. Judge Chase made an insolent address to the prisoner and
sentenced him to death. But Mr. Adams, with a remarkable degree of
justice, gave him a full pardon, and drew down upon himself thereby
the wrath of his cabinet.[157]
[Footnote 157: Wheaton, 458; 9 Adams's Works, 57; 2 Gibbs, 360; 5
Hildreth, 366; Chase's Trial, 18.]
2. In 1788 Mathew Lyon, a native of Ireland, a Revolutionary soldier,
a member of congress, and editor of a newspaper in Vermont, was
brought to trial under the Sedition Law, for a false, malicious, and
seditious libel. He had published in his newspaper a somewhat severe
attack on the Federalists then in power. The article, alleged to be
"seditious," was a letter written and mailed at the seat of government
seven days before, and published nine days after, the passage of the
Sedition Law itself. It was as much a political trial, Gentlemen, as
this--purely political. Judge Patterson--United States Circuit Judge
of Vermont--charged that the jury had nothing whatever to do with the
constitutionality of the Sedition Law. "Congress has said that the
author and publisher of seditious libels is to be punished." "The only
question you are to determine is ... Did Mr. Lyon publish the
writing?... Did he do so seditiously, with the intent of making odious
or contemptible the President and government, and bringing them both
into disrepute?"
Mr. Lyon was found guilty, and punished by a fine of $1,000 and
imprisonment for four months. The "Seditious Libel" would now be
thought a quite moderate Editorial or "Letter from our Correspondent."
His imprisonment was enforced with such rigor that his constituents
threatened to tear down the jail, which he prevented.[158]
[Footnote 158: Wharton, 333; 4 Jefferson's Works (1853), 262.]
3. In 1799 Thomas Cooper, a native of England, residing at
Northumberland, Pennsylvania, published a handbill reflecting severely
on the conduct of President Adams. He was prosecuted by an
Information _ex officio_, in the Circuit Court for Pennsylvania, and
brought to trial before Judge Chase, already referred to, charged with
a "false, scandalous, and malicious attack" on the President. Mr.
Chase charged the jury, "A Republican government can only be destroyed
in two ways: the introduction of luxury, or the licentiousness of the
press. This latter is the more slow, but most sure and certain means
of bringing about the destruction of the government." He made a fierce
and violent harangue, arguing the case against the defendant with the
spirit which has since become so notorious in the United States courts
in that State. The pliant jury found Mr. Cooper guilty, and he was
fined $400 and sent to jail for six months. He subsequently became a
judge in Pennsylvania, as conspicuous for judicial tyranny as Mr.
Chase himself, and was removed by Address of the Legislature from his
seat, but afterwards went to South Carolina where he became Professor
at her college, and a famous nullifier in 1830.[159]
[Footnote 159: Wharton, 659.]
4. In 1799, or 1800, Mr. Callender, a native of England, then residing
at Richmond, in Virginia--a base and mean fellow, as his whole history
proved, depraved in morals and malignant in temper--published a
pamphlet called "The Prospect before us," full of the common abuse of
Mr. Adams and his administration. He was indicted for a false,
malicious, and seditious libel, and brought to trial before Judge
Chase who pressed the Sedition Law with inquisitorial energy and
executed it with intolerant rigor.[160] As he started for Richmond to
hold the trial, he declared "he would teach the lawyers in Virginia
the difference between the liberty and the licentiousness of the
press." He told the marshal "not to put any of those creatures called
Democrats on the jury,"--it does not appear that he had his own
Brother-in-Law on it however;--"he likened himself to a schoolmaster
who was to turn the unruly boys of the Virginia courts over his knee
and give them a little wholesome chastisement."
[Footnote 160: Wharton, 45, 688; Chase's Trial, 33; 4 Jefferson, 445,
447.]
Some of the ablest lawyers in Virginia were engaged for the defence.
But they could not secure any decent regard to the common forms of
law, or to the claims of justice. He would not grant the delay always
usual in such cases, and indispensable to the defence. He refused to
allow the defendants' counsel to examine their most important witness,
and allowed them to put none but written questions approved of by him!
The defendant was not allowed to prove the truth of any statements,
alleged to be libellous, by establishing the truth of one part through
one witness and of another through a different one. He would not allow
him to argue to the jury that the law was unconstitutional. "We all
know that juries have the right to decide the law as well as the fact,
and the Constitution is the Supreme law of the land." "Then," said
Mr. Wirt, "since the jury have a right to consider the law, and since
the Constitution is law, it is certainly syllogistic that the jury
have a right to consider the Constitution;" and the judge exclaimed,
"a _non sequitur_, Sir!" "Sit down, Sir!" Mr. Wirt sat down. The judge
declared "a right is given to the jury to determine what the law is in
the case before them, and not to decide whether a statute is a law or
not, or whether it is void, under an opinion that it is
unconstitutional." "It appears to me the right now claimed has a
direct tendency to dissolve the Union." "No citizen of knowledge and
information ... will believe, without very strong and indubitable
proof, that Congress will, intentionally, make any law in violation of
the Federal Constitution." "If such a case should happen, the mode of
redress is pointed out in the Constitution." It was obvious that
Congress had made laws in violation of the Constitution, and he
insisted that the jury should enforce those laws against their own
conscience. After all his violent injustice he of course declared "the
decisions of courts of justice will not be influenced by political and
_local_ principles and prejudices." The packed jury found the prisoner
guilty. He was fined $200 and sent to jail for nine months.
But Virginia was too high-spirited to bear this. Nay, Gentlemen of the
Jury, the whole Nation then was too fond of justice and liberty to
allow such wickedness to proceed in the name of law. "Virginia was in
a flame;" the lawyers "throughout the country were stung to the
quick." They had not been so long under the slave-power then as now.
At this day, Gentlemen, such conduct, such insolence, yet more
oppressive, rouses no general indignation in the lawyers. But then the
Alien and Sedition Laws ruined the Administration, and sent Mr.
Adams--who yet never favored them--from his seat; his successor, Mr.
Jefferson, says, "_I discharged every person under punishment_, or
prosecution, _under the Sedition Law, because I considered and now
consider, that law to be a nullity as absolute and as palpable as if
Congress had ordered us to fall down and worship a golden
image_."[161] Judge Chase was impeached by the House of
Representatives, tried by the Senate, and only escaped condemnation by
the prejudice of the political partisans. As it was, a majority were
in favor of his condemnation. But the Constitution, properly, requires
two thirds. Judge Chase escaped by this provision. But his influence
was gone.
[Footnote 161: 4 Jefferson, Correspondence in Wharton, 721.]
The Alien and Sedition Laws, which sought to gag the People, and make
a Speech a "misdemeanor," soon went to their own place; and on the 4th
of July, 1840, Congress passed a law to pay Mr. Lyon and others the
full amount of the fine and costs levied upon them, with interest to
the date of payment: a Committee of the House had made a report on
Lyon's case, stating that "the law was unconstitutional, null, and
void, passed under a mistaken exercise of undelegated power, and that
the mistake ought to be remedied by returning the fine so obtained,
with interest thereon."[162] Just now, Gentlemen, Judge Chase and the
principles of the Sedition Law appear to be in high favor with the
Federal Courts: but one day the fugitive slave bill will follow the
Alien and Sedition Bill, and Congress will refund all the money it has
wrenched unjustly from victims of the Court. There is a To-morrow
after to-day, and a Higher Law which crushes all fugitive slave bills
into their kindred dust.
[Footnote 162: 2 Sess. 26th, Cong. Doc. 86, Ho. Rep.; Wharton, 344,
679. See also Virginia Resolutions (1850), and the remarks in the
Debates. Then Virginia was faithful to State Rights, and did a service
to the cause of Liberty which no subsequent misconduct should make us
forget.]
* * * * *
Gentlemen, allow me to vary this narrative of British and American
despotism by an example from a different nation. I will refresh you
with a case more nearly resembling that before you; it is an instance
of German tyranny. In 1853, Dr. Gervinus, Professor of History in the
University of Heidelberg in Germany, published this little volume of
about 200 pages,[163] "An Introduction to the History of the 19th
Century." Mr. Gervinus is one of the most enlightened men in the
world, a man of great genius for the philosophical investigation of
human history, and enriched with such culture and learning as is not
common even in that home of learned men. His book, designed only for
scholars, and hardly intelligible to the majority of readers even in
America, sets forth this great fact,--The democratic tendency of
mankind shown in all history.
[Footnote 163: 2 Einleitung in die Geschichte des neunzehnten
Jahrhunderts; Leipzig, 1853. 8vo. pp. 181.]
Gervinus was seized and brought to trial on the 24th of February,
1853, at Mannheim, charged with publishing a work against
constitutional monarchy, intending thereby to depose the lawful head
of the State, the Grand Duke Charles Leopold, and with changing and
endangering the constitution, "disturbing the public tranquillity and
order, and incurring the guilt of High Treason." In short he was
charged with "obstructing an officer" and attempting to "dissolve the
Union," with "levying war." For his trial the judge purposely selected
a small room, though four times larger than what now circumscribes the
dignity of this Honorable Court; he did not wish the people to hear
Gervinus's defence. But I will read you some extracts from the preface
to the English translation of his book:--
"I offer nothing purely theoretical or speculative, and as
few opinions and conclusions as can possibly be given in a
historical narrative. The work finally reaches a period
when the Present and the Future become its subject, and when
therefore it can no longer relate any events of history
which have been completed; and is confined to the simple
statement of _the Fact_ that opposite opinions exist, and
may yet be advanced, concerning the problem of the Future.
These opinions are themselves weighed against one another,
but their value is not determined by dogmas, or phrases, or
declamations, but simply by facts. If the balance incline
towards a more liberal form of government, towards
democratic institutions, and therefore towards
self-government, and the participation of the many rather
than of the few in the affairs of the State, I am not to
blame, nor is it my ordinance, but that of History and of
Providence. My work is only (what all historical narrative
should be) a vindication of the decrees of Providence; and
to revolt against them appears to me neither pious in a
moral point of view, nor wise in a political. That which is
proved by the most remarkable facts of History, will not be
altered in the smallest degree by the suppression of my
work, or by my condemnation. The charge on this head is an
absurdity, since no rational end can be attained by it. It
aims at the suppression of a truth which, should _I_ not
tell it, will be ever louder and louder proclaimed by the
_Facts of History_.
"To believe such a thing possible is a proof how limited an
idea exists of the eager inquiry going on after
knowledge--and truth, the source and origin of all
knowledge. There will always be so eager a demand for a
history of the Present time, that, even should _I_ be
prevented, ten others would arise, only to proclaim the
louder, and to repeat the oftener, the truth which is here
suppressed. To believe that the philosophy of History can be
silenced by persecution, argues an entire ignorance even of
the external mechanism of philosophy. A political pamphlet,
intended to serve a particular purpose at a particular
period, may be suppressed. The author of such a pamphlet,
bent on agitation, can easily console himself for its
suppression. It has cost him little time and trouble; it is
only a means to an end, one means out of many means, any of
which, when this is lost, will serve the author as well. But
it is not thus with philosophical works, it is not thus with
the work before me. This book is deeply rooted in the
vocation of my whole life, and is the end of my
philosophical research; I have prepared myself for it by the
labor of years, and the labor of years will be necessary for
its completion. I have reached a time of life when I can
neither change my vocation, nor even cease to labor in this
vocation. I am also so imbued with my philosophy, that even
if I could change I would not. I may be hindered in the
prosecution of this work for four months, but in the fifth I
shall return to it. For a judicial sentence cannot arrest
(like a mere pamphlet) the philosophical scheme interwoven
into a whole existence."
"If it is possible that this 'Introduction' can be condemned
in Germany, that it can be prohibited, that by these means
the work should be strangled in its birth, then the
philosophy of history has no longer a place in Germany. The
tribunal of Baden will have given the first blow, in
pronouncing judgment on a matter which is purely
philosophical, and Germany, whose freedom of philosophical
research has been her pride and her boast, of which even the
various administrations of the nation have never been
jealous, will receive a shock such as she never before
sustained."
"My book is on so strictly a philosophical plan, and treats
of such comprehensive historical questions, that, properly,
no judgment of any value could be pronounced upon it but by
the professed historian, of whom there are not two dozen in
all Germany. Among them there has not, to this hour, been
found one competent to give an opinion in a few weeks on a
book which is the fruit of half a life. On the other hand,
there was soon a whole set of fanatical partisans and
obstreperous bunglers in a neighboring press, who in eight
days had condemned this work, in some instances, by calling
it an historical commonplace, and in others, a political
pamphlet with '_destructive tendencies_.' At the same time,
and in a manner easily accounted for, under the influence
of such an expression of public opinion, and almost before
any other could make itself heard, accusations were made
against the book, and it was confiscated. Let no one take it
amiss if, in the urgency of my defence, _I_ for a moment lay
aside modesty, as far as such modesty might prove injurious
to my cause. My work demonstrates a law of historical
development, which I do not claim as my property, or as
originating in me, but which has been demonstrated more than
two thousand years ago by the greatest thinker of all ages,
derived from observations on the history of the Grecian
State. To repeat a law which has been already demonstrated,
ought to appear but a trifling circumstance, and indeed
might merit the term of an historical commonplace; we could
even suppose that it might be mentioned in a popular as well
as in a philosophical book. Nevertheless this law has
scarcely been twice repeated in the course of two thousand
years, and then only by two imitators, who scarcely
understood its whole purport, though they were the most
thinking heads of the most thinking nations--Machiavelli in
Italy, and Hegel in Germany. I solemnly ask of the whole
philosophical world if my words can be gainsaid, and to name
for me the third, by whom the Aristotelian law, of which I
speak, has been repeated and understood. I have ventured to
consider the thought of Aristotle, and to apply it to the
history of modern European States, and I found it confirmed
by a series of developments which have occupied two thousand
years. I also found that the whole series of events
confirmatory of this law (itself deduced from experience)
are not yet entirely fulfilled. Like the astronomer, who,
from a known fraction of the path of a newly discovered
planet, calculates its whole course, I ventured to divine
that which is still wanting, and which may yet take
centuries to complete. I turned silently to those whose
profession was the study of history, to prove the justice of
my calculations; I handed my book over to coming generations
and coming centuries, with the silent demand, when the
required series of events shall be fulfilled, then to
pronounce the final sentence, whether this law, and its
purport as now explained, be just or not. This is the
philosophical character, and these the contents of my
book--no more than was indispensably necessary to make this
calculation. And now comes the charge, and pronounces that
in the character of a pamphleteer, I have endeavored to
excite a revolution in the Grand Duchy of Baden, or in the
German Confederation."
On the 8th of March--it should have been the _fifth_--the thing came
to a close. On account of "his hostility to constitutional monarchy,
and his declaration of its weakness, his denial of its good-will
[towards the people], and his representing that the American Democracy
was a universal necessity and a desirable fact," sentence was
pronounced against him, condemning him to an imprisonment of four
months, and ordering his book to be destroyed. There was no Jury of
the People to try him! Here our own Court has an admirable precedent
for punishing me for a word.[164]
[Footnote 164: See Preface to English Translation of Gervinus (London,
1853); and Allg. Lit. Zeitung für 1853, pp. 867, 883, 931, 946, 994,
1131.]
But even in Massachusetts, within twenty years, an attempt was made to
punish a man for his opinions on a matter of history which had no
connection with politics, or even with American Slavery. In July,
1834, Rev. George R. Noyes, a Unitarian Minister at Petersham, a
retired scholar, a blameless man of fine abilities and very large
attainments in theological learning, wrote an elaborate article in the
Christian Examiner, the organ of the "Liberal Christians" in America,
in which he maintained that Jesus of Nazareth is not the Messiah
predicted in the Old Testament. "It is difficult," said this
accomplished Theologian, "to point out any predictions which have been
properly fulfilled in Jesus." Peter and Paul found the death and
resurrection of Jesus in the 16th Psalm, but they "were in an error,"
which should not surprise us, for "the Evangelists and Apostles never
claimed to be _inspired reasoners and interpreters_;" "they partook of
the errors and prejudices of their age in things in which Christ had
not instructed them." "The commonly received doctrine of the
inspiration of all the writings included in the Bible, is a millstone
hung round its neck [the neck of Christianity], sufficient to sink
it."
The article was written with remarkable candor and moderation, and
indicated a devout and holy purpose in the author. The doctrines were
by no means new. But Hon. James T. Austin, was then Attorney-General
of the State; his attention being called to it by an anonymous writer
in a newspaper, he attacked Mr. Noyes's article, thus giving vent to
his opinion thereon: "He considers its learning very ill bestowed, its
researches worse than useless, and that its tendency is to strike down
one of the pillars on which the fabric of Christianity is supported."
"Its tendency is to shock the pious,--confound the unlearned,--overwhelm
those who are but moderately versed in the recondite investigations of
theology, and above all to open an arsenal whence all the small wits
of the infidel army may supply themselves with arms. Its greater evil
is to disarm the power of public opinion." "It certainly disarms to a
great degree the power of the law."[165]
[Footnote 165: 16 Examiner, 321; 17 ibid. 127; Boston Atlas, July 8th
and 9th, 1834.]
Gentlemen, suppose it had not been necessary to submit the matter to a
Jury, what would the right of freedom of conscience be worth in the
hands of such a man, "dressed in a little brief authority?" It was
said at the time that the author was actually presented to the
Grand-Jury, and an attempt made to procure an indictment for
Blasphemy, or Misdemeanor. I know not how true the rumor was. The
threat of prosecution came to nought, and Dr. Noyes, one of the most
scholarly men in America, is now Professor of Theology in the Divinity
School at Cambridge, and an honor to the liberal sect which maintains
him there.
* * * * *
Gentlemen, when laws are unjustly severe, denouncing a punishment
highly excessive, the juries refuse to convict. Examples of this are
very common in trials for capital offences, now that the conscience of
moral men has become so justly hostile to the judicial shedding of
blood. There is no doubt with the Jurors as to the Fact, none as to
the Law; but they say it is unjust to apply such a law to such a fact
and hang a man. The Jury exercising their moral discretion, spite of
the judge, and spite of the special statute or custom, are yet
faithful to their official obligation and manly duty, and serve
Justice, the ultimate End and Purpose of Law, whereto the statutes and
customs are only provisional means. Foolish judges accuse such juries
of "Perjury;" but it is clear enough, Gentlemen, where the falseness
is.
"Do you take notice of that juryman dressed in blue?" said one of the
judges at the old Bailey to Judge Nares. "Yes." "Well, then, take my
word for it, there will not be a single conviction to-day for any
capital offence." So it turned out. The "gentleman in blue" thought it
unjust and wicked, contrary to the ultimate Purpose of law, to hang
men, and he was faithful to his juror's oath in refusing to convict.
Of course he did not doubt of the Fact, or the Law, only of the
Justice of its Application. One day there will be a good many
"gentlemen in blue."
To prevent this moral independence of the jury from defeating the
immoral aim of the government, or of the judges, or the
legislature--the court questions the jurors beforehand, and drives off
from the panel all who think the statute unfit for such application.
Gentlemen, that is a piece of wicked tyranny. It would be as unfair to
exclude such men from the legislature, or from the polls, as from the
jury box. In such cases the defendant is not tried by his "country,"
but by a jury packed for the purpose of convicting him, spite of the
moral feelings of the people.
Sometimes the statute is so framed that the jurors must by their
verdict tell an apparent falsehood, or commit a great injustice. When
it was a capital offence in England to steal forty shillings, and
evidence made it plain that the accused had actually stolen eight or
ten times that value, you all know how often the jurors brought in a
verdict of "_stealing thirty-nine shillings_."[166] They preferred to
tell what seemed to be a lie, rather than kill a man for stealing
fifteen or twenty dollars. The verdict of NOT GUILTY would have been
perfectly just in form as in substance, and conformable to their
official oath.
[Footnote 166: See several cases of this kind in Sullivan on Abolition
of Punishment of Death, (N.Y. 1841), 73. Rantoul's Works, 459.]
Gentlemen, tyrannical rulers, and their servants, despotic and corrupt
judges, have sought to frighten the juries from the exercise of all
discretion--either moral or intellectual. To that end they threaten
them before the verdict, and punish them when they decide contrary to
the wish of the tyrant. To make the jurors agree in a unanimous
verdict, they were kept without "fire or water or food or bed" until
they came to a conclusion; if eleven were of one mind and the twelfth
not convinced, the refractory juror was fined or put in jail.[167] If
the verdict, when unanimously given, did not satisfy the judge or his
master, the jurors were often punished.[168] I have already shown you
how the juries were treated--with fine and imprisonment--who acquitted
Throckmorton and Penn.[169] When John Lilburne was tried for his life
in 1653, he censured the authorities which prosecuted him and appealed
to the "honorable Jury, the Keepers of the Liberties of England:" they
found him Not Guilty, and were themselves brought before the council
of State for punishment. "Thomas Greene of Snow-hill, tallow chandler,
Foreman of the Jury, being asked what the grounds and reasons were
that moved him to find ... Lilburne not guilty, ... saith '_that he
did discharge his conscience in what he then did, and that he will
give no further answer to any questions which shall be asked him upon
that matter_.'"[170] This was in the time of Cromwell; but as the
People were indignant at his tyrannical conduct in that matter, and
his insolent attempt to punish the jurors, they escaped without fine
or imprisonment. Indeed more than a hundred and twenty-five years
before, Thomas Smith had declared "such doings to be very violent,
tyrannical, and contrary to the liberty and customs of the realm of
England." Sir Matthew Hale said at a later day, "It would be a most
unhappy case for the judge himself, if the prisoner's fate depended
upon his directions; unhappy also for the prisoner; for if the judge's
opinion must rule the verdict, the trial by jury would be
useless."[171] Judge Kelyng was particularly hostile to the jury,
throwing aside "all regard to moderation and decency." He compelled
the grand-jury of Somersetshire to find an indictment against their
consciences, reproaching Sir Hugh Wyndham, the foreman, as the "Head
of a Faction." He told the jury, "You are all my servants, and I will
make the best in England stoop!" He said it was a "misdemeanor" for
them to discriminate between murder and manslaughter; that was for the
court to determine. But, Gentlemen, it does not appear that he had his
brother-in-law on that grand-jury. Several persons were indicted for
"attending a conventicle;" the jury acquitted them contrary to his
wish, and he fined them $334 apiece, and put them in jail till it was
paid. On another occasion, this servile creature of Charles II. fined
and imprisoned all the jurors because they convicted of _manslaughter_
a man whom he wanted to hang. But for this conduct he was accused in
the House of Commons, and brought to answer for it at their bar.[172]
[Footnote 167: Forsyth, 241, 243.]
[Footnote 168: Thomas Smith, Commonwealth, (London, 1589,) b. iii. c.
1. Hargrave, in 6 St. Tr. 1019.]
[Footnote 169: See above, p. 95. 1 St. Tr. 901; 6 St. Tr. 967, 969,
999; 21 St. Tr. 925.]
[Footnote 170: 1 St. Tr. 445.]
[Footnote 171: 6 St. Tr. 967, note; Bushell's Case, Ibid. 999, and
Hargrave's note, 1013.]
[Footnote 172: 2 Campbell, Justices, 405; 6 St. Tr. 910; Kelyng, 50; 3
Hallam, 6, note; Commons Journals, 16 Oct. 1667.]
In 1680 Chief Justice Scroggs was brought up before the House of
Commons for discharging "a refractory grand-jury"--such an one as was
discharged in Boston last July: Sir Francis Winnington said, "If the
judges instead of acting by law shall be acted by their own ambition,
and endeavor to get promotion rather by worshipping the rising sun
than doing justice, this nation will soon be reduced to a miserable
condition." "As faults committed by judges are of more dangerous
consequence than others to the public, so there do not want precedents
of severer chastisements for them than for others."[173]
[Footnote 173: 4 Parl. Hist. 1224.]
But spite of the continual attempt to destroy the value of the trial
by jury, and take from the People their ancient, sevenfold shield, the
progress of liberty is perpetual. Now and then there arose lawyers and
judges like Sir Matthew Hale, Holt, Vaughan, Somers, Camden, and
Erskine, who reached out a helping hand. Nay, politicians came up to
its defence. But the great power which has sustained and developed it
is the sturdy and unconquerable Love of individual Liberty which is
one of the most marked characteristics of the Anglo-Saxon, whether
Briton or American. The Common People of England sent Juries, as well
as regiments of Ironsides, to do battle for the Right. Gentlemen, let
us devoutly thank God for this Safeguard of Freedom, and take heed
that it suffers no detriment in our day, but serves always the Higher
Law of the Infinite God.
Now, Gentlemen of the Jury, I come to the end.
IV. OF THE CIRCUMSTANCES OF THIS SPECIAL CASE, UNITED STATES VERSUS
THEODORE PARKER.
Here, Gentlemen, I shall speak of three things.
(I.) Of the Fugitive Slave Bill.
At the close of the Revolution there was a contradiction in the
national consciousness: the People were divided between the Idea of
Freedom and the Idea of Slavery. There consequently ensued a struggle
between the two elements. This has continued ever since the Treaty of
Peace in 1783.
Twice the Idea of Freedom has won an important victory: in 1787
Slavery was prohibited in the North-West Territory; in 1808 the
African Slave Trade was abolished. Gentlemen, this is all that has
been done for seventy-two years; the last triumph of American Freedom
over American Slavery was forty-seven years ago!
But the victories of Slavery have been manifold: in 1787 Slavery came
into the Constitution,--it was left in the individual States as a part
of their "Republican form of government;" the slaves were counted
fractions of men, without the personal rights of integral humanity,
and so to be represented by their masters; and the rendition of
fugitive slaves was provided for. In 1792 out of old territory a new
Slave State was made and Kentucky came into the Union. Tennessee
followed in 1796, Mississippi in 1817, Alabama in 1819, and thus four
Slave States were newly made out of soil which the Declaration of
Independence covered with ideal freedom. In 1793 the Federal
government took Slavery under its special patronage and passed the
first fugitive slave bill for the capture of such as should escape
from bondage in one State, and flee to another. In 1803 Louisiana was
purchased and Slavery left in that vast territory; thus the first
expansion of our borders was an extension of bondage,--out of that
soil three great States, Louisiana, Missouri, Arkansas, have since
been made, all despotic, with more than half a million of Americans
fettered there to-day. Florida was purchased as slave soil, and in
1845 made a State with perpetual Slavery written in its Constitution.
In 1845 Texas was annexed and Slavery extended over nearly four
hundred thousand square miles of once free soil; in 1848 Slavery was
spread over California, Utah, and New Mexico. Here were seven great
victories of Slavery over Freedom.
At first it seemed doubtful which was master in the federal councils;
but in 1820, in a great battle--the Missouri Compromise--Slavery
triumphed, and has ever since been master. In 1845 Texas was annexed,
and Slavery became the open, acknowledged, and most insolent master.
The rich, intelligent, and submissive North only registers the decrees
of the poor, the ignorant, but the controlling South; accepts for
Officers such as the master appoints, for laws what the Slave-driver
commands. The Slave-Power became predominant in American politics,
business, literature, and "Religion."
Gentlemen of the Jury, do you doubt what I say? Look at this Honorable
Court,--at its Judges, its Attorney, at its Marshal, and its Marshal's
Guard: they all hold their offices by petty serjeantry of menial
service rendered to the Slave-Power. It would be an insult to any one
of this august fraternity to hint that he had the faintest respect
for the great Principles of American Liberty, or any love of justice
for all men. I shall not be guilty of that "contempt of court."
Gentlemen, I had expected that this Court would be solemnly opened
with prayer. I knew whom the Slave-Power would select as its priest to
"intercede with Heaven." I expected to hear the Rev. Nehemiah Adams,
D.D., ask the God he worships and serves to take "a South-side view of
American Slavery" in general, and in special of this prosecution of a
minister of the Christian Religion for attempting to keep the Golden
Rule. Should the Court hereafter indulge its public proclivity to
prayer, that eminent divine will doubtless be its advocate--fit
mediator for a Court which knows no Higher Law.
Well, Gentlemen, that sevenfold triumph was not enough. Slavery will
never be contented so long as there is an inch of free soil in the
United States! New victories must be attempted. Mr. Toombs has
declared to this noble Advocate of Justice and Defender of Humanity,
[John P. Hale] who renews the virtuous glories of his illustrious
namesake, Sir Matthew Hale, that, "Before long the master will sit
down with his slaves at the foot of Bunker Hill Monument." But one
thing disturbed our masters at the South--the concubine runs away from
her lusty lord, the mulatto slave child from her white father; I have
had the "best blood of Virginia," fugitive children of her "first
families" in my own house, and have given many a dollar to help the
sons and daughters of "Southern Democrats" enjoy a taste of Northern
Democracy. The slaves would run away. The law of 1793 was not adequate
to keep or catch these African Christians who heeded not the Southern
command, "Slaves, obey your masters." The Decision of the Supreme
Court in the Prigg case,[174] showed the disposition of the Federal
Government, and took out of the hands of the individual States the
defence of their own citizens. Still the slaves would run away. In
1849 there were more than five hundred fugitives from Southern
Democracy in Boston--and their masters could not catch them. What a
misfortune! Boston retained $200,000 of human Property of the
Christian and chivalric South! Surely the Union was "in danger."
[Footnote 174: 16 Peters, 616.]
In 1850 came the fugitive slave bill. When first concocted, its
author,--a restless politician, a man of small mind and mean
character, with "Plantation manners,"--thought it was "too bad to
pass." He designed it not for an actual law, but an insult to the
North so aggravating that she must resist the outrage, and then there
would be an opportunity for some excitement and agitation at the
South--and perhaps some "nullification" in South Carolina and
Virginia; and in that general fermentation who knows what scum would
be thrown up! Even Mr. Clay "never expected the law would be
enforced." "No Northern _gentleman_," said he, "will ever help return
a fugitive slave." It seemed impossible for the bill to pass.
But at that time Massachusetts had in the Senate of the nation a
disappointed politician, a man of great understanding, of most mighty
powers of speech,--
"Created hugest that swim the ocean stream,"--
and what more than all else contributed to his success in life, the
most magnificent and commanding personal appearance. At that time--his
ambition nothing abated by the many years which make men
venerable,--he was a bankrupt in money, a bankrupt in reputation, and
a bankrupt in morals--I speak only of his public morals, not his
private,--a bankrupt in political character, pensioned by the Money
Power of the North. Thrice disappointed, he was at that time gaming
for the Presidency. When the South laid down the fugitive slave bill,
on the national Faro-table, Mr. Webster bet his all upon that card. He
staked his mind--and it was one of vast compass; his eloquence, which
could shake the continent; his position, the senatorial influence of
Massachusetts; his wide reputation, which rung with many a noble word
for justice and the Rights of man; he staked his conscience and his
life. Gentlemen, you know the rest,--the card won, the South took the
_trick_, and Webster lost all he could lose,--his conscience, his
position, his reputation; not his wide-compassing mind, not his
earth-shaking eloquence. Finally he lost his--life. Peace to his
mighty shade. God be merciful to him that showed no mercy. The warning
of his fall is worth more than the guidance of his success. Let us
forgive; it were wicked to forget. For fifty years no American has had
such opportunity to serve his country in an hour of need. Never has an
American so signally betrayed the trust--not once since Benedict
Arnold turned a less ignoble traitor!
Gentlemen, you know the speech of the 7th of March. You know it too
well. He proposed to support the fugitive slave bill "with all its
provisions, to the fullest extent." At that time this bill of
abominations was worse than even now; for then it left the liberty of
a man to the discretion not only of any judge or commissioner of any
Federal court, but to any clerk or marshal thereof, nay, to any
collector of the customs and every one of the seventeen thousand
postmasters in the United States! It provided that an affidavit made
before any officer empowered, by the United States or any State, to
administer oaths, should be taken as conclusive evidence to prove a
man a slave! So John Smith of some unknown town in Texas, might make
affidavit before John Jones, a justice of peace in the same place,
that Lewis Hayden, or Wendell Phillips, or his Honor Judge Curtis, was
his (Smith's) slave, and had escaped to Boston: might bring hither
John Brown, a Postmaster from Texas, or find some collector of the
customs or minion of the court in Massachusetts, seize his victim, and
swear away his liberty; and any man might be at once consigned to
eternal bondage! All that the bill provided for,--and authorized the
kidnapper to employ as many persons as he might think proper to
accomplish his purpose by force, at the expense of the United States!
All this Mr. Webster volunteered to support "to the fullest extent."
The bill was amended, here bettered, there worsened, and came to the
final vote. Gentlemen, the Money Power of the North joined the Slave
Power of the South to kidnap men in America after 1850, as it had
kidnapped them in Africa before 1808. Out of fifty Senators only
twelve said, No; while in the House 109 voted Yea. The Hon. Samuel A.
Eliot gave the vote of Beacon and State Streets for kidnapping men on
the soil of Boston. The one Massachusetts vote for man-stealing must
come from the town which once bore a Franklin and an Adams in her
bosom; yes, from under the eaves of John Hancock's house! That one
vote was not disgrace enough; his successor [Hon. William Appleton]
must take a needless delight in reaffirming the infamy. When the bill
passed, Gentlemen, you remember how Mr. Webster rejoiced:--
"Now is the winter of our discontent
Made glorious summer,"
was his public outcry on the housetop! And Boston fired a hundred guns
of joy! Do you know _who_ fired them? Ask Mr. Attorney Hallett; ask
Mr. Justice Curtis. They can "instruct the jury."
Gentlemen, you know the operation of the fugitive slave bill. It
subverts the Purposes of the Constitution, it destroys Justice,
disturbs domestic Tranquillity, hinders the common Defence and the
general Welfare, and annihilates the Blessings of Liberty. It defies
the first Principles of the Declaration of Independence,--think of the
fugitive slave bill as an appendix to that document! It violates the
Idea of Democracy. It contradicts the very substance of the Christian
Religion--the two great commandments of Love to God, and Love to man,
whereon "hang all the Law and the Prophets." It makes natural humanity
a crime; it subjects all the Christian virtues to fine and
imprisonment. It is a _lettre de cachet_ against Philanthropy.
Gentlemen of the Jury, you know the fugitive slave bill is
unconstitutional. I need not argue the matter; it is too plain to need
proof. See how it opposes Justice, the ultimate purpose of human law;
nay, the declared objects of the Constitution itself! But yet its
unconstitutionality has been most abundantly shown by our own
fellow-citizens. I need not go out of Massachusetts for defenders of
Justice and Law. You remember the Speeches of Mr. Phillips, Mr.
Sewall, Mr. Rantoul, Mr. Sumner, Mr. Mann, the arguments of Mr.
Hildreth. The judges before you by nature are able-minded men, both of
them; both also learned as lawyers and otherwise well educated,--I
love to honor their natural powers, and their acquired learning; would
I could offer higher praise. Now, I will not insult their manly
understanding with the supposition that either of them ever thought
the fugitive slave bill constitutional. No, Gentlemen, it is not
possible that in the _personal_ opinion of Mr. Sprague, or even Mr.
Curtis, this bill can be held for a constitutional law. But the Court
has its official dress: part of it is of silk--or supposed to be,--the
gown which decorates the outward figure of the man who wears its ample
folds; it is made after a prescribed pattern. But part of it also is
made of _opinion_ which hides the ability and learning of the
honorable Court. The constitutionality of the fugitive slave bill is a
part of the judge's official dress: accordingly, as no federal judge
sits without his "silk gown," so none appears without his "opinion"
that the fugitive slave bill is constitutional. But if the court
should solemnly declare that such was its _personal opinion_--Gentlemen
of the Jury, I,--I--should not believe it--any more than if they
declared the gown of silk was the natural judicial covering, the
actual "true skin" of the judges. No, Gentlemen, these judges are not
monsters, not naturally idiotic in their Conscience. This opinion is
their official robe, a supplementary cuticle, an artificial epidermis,
woven from without, to be thrown off one day, when it shall serve
their turn, by political desquamation. Let them wear it; "they have
their reward." But you and I, Gentlemen, let us thank God we are not
officially barked about with such a leprous elephantiasis as that. You
are to judge of its constitutionality for yourselves, not to take the
_purchased, official opinion_ of the judge as veil for your
Conscience; let it hide the judges' if they like.
Gentlemen, I lack words to describe the fugitive slave bill; its sins
outrun my power of speech. But you know the consequences which follow
if it be accepted by the People, submitted to, and enforced: the State
of Massachusetts is nothing; her courts nothing; her juries nothing;
her laws nothing; her Constitution nothing--the Rights of the State
are whistled away by the "opinion" of a fugitive slave bill judge, the
rights of the citizen--all gone; his right to life, liberty, and the
pursuit of happiness lies at the mercy of the meanest man whom this
Court shall ever make a Commissioner to kidnap men. Yes, Gentlemen of
the Jury, you hold your liberty at the mercy of George T. Curtis and
Seth J. Thomas! You are the People, "the Country" to determine whether
it shall come to this.
You know the motive which led the South to desire this bill,--it was
partly pecuniary, the desire to get the work of men and not pay for
it; partly political, the desire to establish Slavery at the North.
Mr. Toombs is not the only man who wishes the master to sit down with
his slaves at the foot of Bunker Hill Monument! You know the motive of
the Northern men who supported the bill;--words are idle here!
Gentlemen, I said that Boston fired a hundred jubilant cannon when the
fugitive slave bill became a law. It was only a _part of Boston_ that
fired them. The bill was odious here to all just and honorable men.
Massachusetts hated the bill, and was in no haste to "conquer her
prejudices" in favor of Justice, Humanity, and the Christian Religion;
she did not like the "disagreeable duty" of making a public profession
of practical Atheism. At first the yellow fever of the slave-hunters
did not extend much beyond the pavements of Boston and Salem; so pains
must be taken to spread the malady. The greatest efforts were made to
induce the People to renounce their Christianity, to accept and
enforce the wicked measure. The cry was raised, "The Union is in
danger:" nobody believed it; they least of all who raised the cry.
Some clergymen in the Churches of Commerce were coaxed, wheedled, or
bought over, and they declared kidnapping would be imputed unto men
for "righteousness." The actual man-stealer in Boston was likened to
"faithful Abraham" in the Hebrew mythic tale,--"the rendition of a
slave was like the sacrifice of Isaac." One Trinitarian minister, a
son of Massachusetts, laid Conscience down before the Juggernaut of
the fugitive slave bill, another would send his own mother into
Slavery; both had their reward. Editors were brought over to the true
faith of kidnapping. Alas, there were some in Boston who needed no
conversion; who were always on the side of inhumanity. There were
"Union meetings" called to save the Nation; and the meanest men in the
great towns came to serve as Redeemers in this Salvation unto
kidnapping. Mr. Webster outdid himself in giant efforts--and though
old and sick, he wrought with mighty strength. So in the great poem
the fallen angel, his Paradise of Virtue lost,--
----"with bold words
Breaking the horrid silence thus began.
'To do aught good never will be our task,
But ever to do ill our sole delight,
As being the contrary to His high will
Whom we resist....
Let us not slip the occasion....
But reassembling our afflicted powers
Consult how we may henceforth most offend
Our enemy; our own loss how repair,
How overcome this dire calamity;
What reinforcement we may gain from hope,
If not what resolution from despair.'"
One class of men needed no change, no stimulation. They were ready to
execute this unjust, this unconstitutional Act; their lamps were
trimmed and burning, their loins girt about, their feet swift to shed
blood. Who were they? Ask Philadelphia, ask New York, ask Boston. Look
at this bench. The Federal Courts were as ready to betray justice in
1850 as Kelyng and Jeffreys and Scroggs and the other pliant judges of
Charles II. or James II. to support his iniquities. I must speak of
this.
* * * * *
(II.) Of the conduct of the Federal Courts.
Gentlemen of the Jury, that you may understand the enormity of the
conduct of the federal courts and the peril they bring upon their
victims, I must refresh your memory with a few facts.
1. I shall begin with the cases in Pennsylvania. In that State four
officials of government have acquired great distinction by their zeal
in enslaving men, McAllister, Ingraham, Grier, and Kane; the two first
are "Commissioners," the latter two "Judges." In one year they had the
glory of kidnapping twenty-six Americans and delivering them over to
Slavery. Look at a few cases.
(1.) On the 10th of March, 1851, Hannah Dellam was brought before
Judge Kane charged with being a fugitive slave. She was far advanced
in pregnancy, hourly expecting to give birth to a child. If a
convicted murderess is in that condition, the law delays the execution
of its ghastly sentence till the baby is born, whom the gallows
orphans soon. The poor negro woman's counsel begged for delay that the
child might be born in Pennsylvania and so be free,--a poor boon, but
too great for a fugitive slave bill judge to grant. The judge who
inherits the name of the first murderer, disgraced the family of Cain;
he prolonged his court late into night, that he might send the child
into Slavery while in the bowels of its mother! Judge Kane held his
"court" and gave his decision in the very building where the
Declaration of Independence was signed and published to the world. The
memorable bell which summons his court, has for motto on its brazen
lips, "Proclaim Liberty throughout the Land, to all the inhabitants
thereof."
(2.) The same year Rachel Parker, a free colored girl, was seized in
the house of Joseph C. Miller of West-Nottingham, Chester County, by
Thomas McCreary of Elkton, Maryland. Mr. Miller pursued the kidnapper
and found the girl at Baltimore, and brought a charge of kidnapping
against McCreary. But before the matter was decided Mr. Miller was
decoyed away and murdered! The man-hunter was set free and the girl
kept as a slave, but after long confinement in jail was at last
pronounced free--not by the Pennsylvania "judge" but by a Baltimore
Jury![175]
[Footnote 175: 20 Anti-Slavery Report, 28 and 21; Ibid. 34.]
(3.) The same year occurred the Christiana Tragedy. Here are the
facts.
In Virginia a general law confers a reward of $100 on any man who
shall bring back to Virginia a slave that has escaped into another
State, and gives him also ten cents for each mile of travel in the
chase after a man. Accordingly, beside the officers of the fugitive
slave bill courts commissioned for that purpose, there is a body of
professional Slave-hunters, who prowl about the borders of
Pennsylvania and entrap their prey. In September, 1850, "a colored
man, known in the neighborhood around Christiana to be free, was
seized and carried away by professional kidnappers, and never
afterwards seen by his family." In March, 1851, in the same
neighborhood, under the roof of his employer, during the night,
another colored man was tied, gagged, and carried away, "marking the
road along which he was dragged by his own blood." He was never
afterwards heard from. "These and many other acts of a similar kind
had so alarmed the neighborhood, that the very name of Kidnapper was
sufficient to create a panic."[176]
[Footnote 176: History of the Trial of Castner Hanway and others for
Treason (Philadelphia, 1852), 35.]
"On the 11th of September, Edward Gorsuch, of Maryland, his
son, Dickerson Gorsuch, with a party of friends, and a
United States officer named Kline, who bore the warrant of
Commissioner Ingraham, made their appearance in a
neighborhood near Christiana, Lancaster County,
Pennsylvania, in pursuit of a Slave. They lay in wait for
their prey near the house of William Parker, a colored man.
When discovered and challenged, they approached the house,
and Gorsuch demanded his Slave. It was denied that he was
there. High words ensued, and two shots were fired by the
assailants at the house. The alarm was then given by blowing
a horn, and the neighborhood roused. A party of colored men,
from thirty to fifty strong, most of them armed in some way,
were before long on the ground. Castner Hanway and Elijah
Lewis, both white men and Friends, rode up before the
engagement began and endeavored to prevent bloodshed by
persuading both parties to disperse peaceably. Kline, the
Deputy Marshal, ordered them to join the _posse_, which
they, of course, refused to do, but urged upon him the
necessity of withdrawing his men for their own safety. This
he finally did, as far as he personally was concerned, when
satisfied that there was actual danger of bloody resistance.
Gorsuch, however, and his party persisted in their attempt,
and he and two of his party fired on the colored men, who
returned the fire with deadly effect. Gorsuch was killed on
the spot, his son severely, though not mortally, wounded,
and the rest of the party put to flight. The dead and
wounded were cared for by the neighbors, mostly Friends and
Abolitionists. The Slave, for the capture of whom this
enterprise was undertaken, made his escape and reached a
land of safety.
"Judge Grier denounced the act from the Bench as one of
Treason. A party of marines were ordered to the ground to
keep the peace after the battle had been fought and won.
United States Marshal Roberts, Commissioner Ingraham, United
States District Attorney Ashmead, with a strong body of
police, accompanied them, and kept the seat of war under a
kind of martial law for several days. The country was
scoured, houses ransacked, and about thirty arrests made.
Among those arrested were Castner Hanway and Elijah Lewis,
whose only crime had been endeavoring to prevent the
effusion of blood. The prisoners were brought to
Philadelphia, examined before a Commissioner, and committed
on a charge of High Treason. At the next term of the
District Court, under a charge from Judge Kane, the
Grand-Jury found indictments against all of them for this
crime."[177]
[Footnote 177: 20 Anti-Slavery Report, pp. 30, 31.]
Mr. Hanway was brought to trial--for his life, charged with "treason."
It appears that this was his overt act.--He was a Quaker, an
anti-slavery Quaker, and a "non-resistant;" when he heard of the
attack on the colored people, he rode on a sorrel horse to the spot,
in his shirt-sleeves, with a broad felt hat on; he advised the colored
men not to fire, "For God's sake don't fire;" but when Deputy Marshal
Kline ordered him to assist in the kidnapping, he refused and would
have nothing to do with it. Some of the colored people fired, and with
such effect on the Kidnappers as I have just now shown. It appeared
also that Mr. Hanway had said the fugitive slave bill was
unconstitutional, and that he would never aid in kidnapping a
man--words which I suppose this Honorable Court will consider as a
constructive "misdemeanor;" "obstructing an officer."
For this "offence" his case was presented to the grand-jury of the
Circuit Court the 29th of September, 1851. Judge Kane charged the
jury--laying down the law of treason. Mr. Hanway was indicted for
"wickedly devising and intending the peace and tranquillity of the ...
United States to disturb;" and that he "wickedly and traitorously did
intend to levy war against the said United States." And also that he
"with force and arms, maliciously and traitorously did prepare and
compose and ... and cause and procure to be prepared and composed,
divers books, pamphlets, letters, and declarations, resolutions,
addresses, papers, and writings, and did ... maliciously and
traitorously publish and disperse ... divers other books ...
containing ... incitement, encouragement, and exhortations, to move,
induce, and persuade persons held to service in any of the United
States ... who had escaped ... to resist, oppose, and prevent, by
violence and intimidation, the execution of the said laws, [that is
the law for kidnapping their own persons]."
He was brought to trial at Philadelphia, November 24th 1851, before
Honorable Judges Kane and Grier, then and subsequently so eminent for
their zeal in perverting law and doing judicial iniquity. Gentlemen of
the Jury--it is no slander to say this. It is their great glory that
in the cause of Slavery they have struck at the first principles of
American Democracy, and set at nought the Christian Religion. It is
only their panegyric which I pronounce.
On behalf of the government there appeared six persons as prosecuting
officers. One United States Senator from Pennsylvania (Mr. Cooper),
the Attorney-General of Maryland, the District Attorney of
Pennsylvania, the Recorder of the City of Philadelphia, and two
members of her bar.[178] For Mr. Webster, then Secretary of State, was
highly desirous that Maryland should send her Attorney-General, Hon.
Mr. Brent, to help the government of the United States prosecute a
Quaker miller, a Non-resistant, for the crime of treason. Hon. James
Cooper, the Pennsylvania Senator, also appeared on behalf of Maryland,
seeking to convict one of his own constituents! Gentlemen, such
conduct carries us back to the time of the Stuarts; but despotism is
always the same. It was very proper that the United States government
should thus outrage the common decencies of judicial process.
[Footnote 178: History, 55, 57; Report, 19; 2 Wallace.]
This question amongst others was put to each juror:--
"Have you formed an opinion that the law of the United
States, known as the Fugitive Slave Law of 1850, is
unconstitutional, so that you cannot for that reason convict
a person indicted for a forcible resistance thereto, if the
facts alleged in the indictment are proved and the court
hold the statute to be constitutional?"
Thus all persons were excluded from the jury who believed this wicked
bill a violation of the constitution; and one most important means of
the prisoner's legitimate defence was purposely swept away by the
court.
Now look at the law as laid down by the government.
Mr. Ashmead, the government's Attorney, said when the Constitution was
adopted "Men had not then become wiser than the laws [the laws of
England and colonial laws which they were born under and broke away
from]; nor had they learned to measure the plain and unambiguous
letter of the Constitution by an artificial standard of their own
creation [that is the Self-evident Truth that all men have a natural
and unalienable Right to Life, Liberty, and the Pursuit of
Happiness]; to obey or disregard it according as it came up to or fell
beneath it [as the law was just or unjust]."
"_You will receive the law from the court._" "You _are bound by the
instructions which the court may give_ in respect to it;" "_it is in
no sense true that you are judges of the law_." "_You must take the
interpretation which the court puts upon it._ You have a right to
apply the law to the facts, but you have no right to go further."
"The crime charged against this defendant is ... that of _levying war
against the United States_. The phrase _levying war_ was long before
the adoption of the Constitution, a phrase ... _embracing such a
forcible resistance to the laws as that charged against this
defendant_ [that is, speaking against the fugitive slave bill and
refusing to kidnap a man is 'levying war against the United States']!"
It is treason "if the intention is by force to prevent the execution
of _any one ... of the general laws of the United States_, or _to
resist_ the exercise of _any legitimate authority of the government_."
"Levying war embraces ... any combination forcibly to prevent or
oppose the execution ... of a public statute, if accompanied or
followed by an act of forcible opposition." Of course the court is to
determine the meaning of _force_; and using the same latitude of
construction as in interpreting _levying war_, it would mean, a
_word_, a _look_, a _thought_, a _wish_, a _fancy_ even.
Mr. Ludlow enforced the same opinions, relying in part on the old
tyrannical decisions of the British courts in the ages of despotism,
and on the opinion of Judge Chase--who had derived his law of treason
from that source, and was impeached before the American Senate for his
oppressive conduct while judge in the very trials whence these
iniquitous doctrines were derived! But Mr. Ludlow says "if a _spurious
doctrine have been introduced into the common law ... it would require
great hardihood in a judge to reject it_." So the jury must accept "a
spurious doctrine" as genuine law!
"In treason, all the _participes criminis_ are principals; there are
no accessaries to this crime. Every act which ... would render a man
an _accessary_ will ... make him a _principal_." "If any man joins and
acts with an assembly of people, _his intent is always to be
considered ... the same as theirs; the law ... judgeth of the intent
by the Fact_." This was Judge Kelyng's "law."
"It may be ... advanced that because Hanway was not armed, he was not
guilty. It is perfectly well settled that _arms are not necessary_."
"Military weapons ... are not necessary ... to a levying war." "This
is the opinion of Judge Chase," and "it may be alleged that Judge
Chase was impeached, and that [therefore] his opinions are of little
weight. Whatever may have been the grounds of that impeachment, _it is
not for us to discuss_."
"If a body of men be assembled for the purpose of effecting a
treasonable object [that is, 'to oppose the execution of a public
statute,' no matter what or how] _all those who perform any part,
however minute, or however remote from the scene of action ... are
equally traitors_."
Mr. Brent, the Maryland State Attorney, whom Mr. Webster had sent
there, declared that "_any combination_ like this, of colored and
white persons, _to prevent the execution of the Fugitive Slave Law, is
treason_."
Mr. Cooper, the Pennsylvania Senator, adds, "Castner Hanway ... having
been present ... at the time the overt act was committed, he is a
principal ... provided he was there aiding and abetting the objects of
the confederated parties." "_Persons_ procuring, contriving, or
_consenting_, come within the words aid and abet." So "_if he_
encourages, _assists, or consents to the act_, it is enough; _he
becomes at once an aider and abettor, and obnoxious to all the pains
and penalties denounced against it_." "If persons _do assemble
themselves_ and act with _some_ force in opposition to _some_ law ...
and _hope thereby to get it repealed, this is a levying war and high
treason_." That is, an assembly of men acting against any law, with
any force of argument, in order to procure its repeal, levies war and
is guilty of treason!
To connect Mr. Hanway with this constructive treason, the government
relied on the evidence of Mr. Kline, the Deputy Marshal of the court,
a man like Mr. Butman and Mr. Patrick Riley, so well known in this
court, and so conspicuous for courage and general elevation of
character. Witnesses testified that Kline was so much addicted to
falsehood that they would not believe him on oath,--but what of that?
He had "conquered his prejudices." It appeared that Mr. Hanway went to
the scene of action on a sorrel horse, in his shirt-sleeves, with a
felt hat on, and did not join the Deputy in attempting to kidnap when
commanded. Hear how Mr. Ludlow constructs levying war out of the
disobedience of a non-resistant Quaker in a felt hat and
shirt-sleeves, mounted on a sorrel horse! Hearken to this voice of the
government:--
"Suddenly he sees the assembled band of infuriated men....
Does he leave the spot? No, Sir! Does he restrain the
negroes? Take the evidence for the defence in its fullest
latitude, and you will perceive he raised the feeble cry,
'Don't shoot! for God's sake don't shoot!' and there it
ended. Is that consistent with innocence?... according to
their own evidence the conclusion is irresistible that he
was not innocent."
"But he does more than this." When summoned by the Deputy to steal a
man "he is thrown off his guard, and exclaims, 'I will not assist
you;' 'he allowed the colored people had a right to defend
themselves.' 'He did not care for that Act of Congress or any other
Act of Congress.'"
And so with his unsaddled sorrel nag this non-resistant miller levies
war upon the United States by crying "Don't fire," and commits treason
by the force and arms of a broad-brimmed Quaker hat. "The smallest
amount of force is sufficient," "military weapons are not necessary to
levy war!"
Mr. Brent thought if Mr. Hanway was not hanged it would appear that a
"small and miserable and traitorous faction can resist and annul the
laws of the United States." "Put down these factions [the Free-Soil
Party, the Liberty Party, the Anti-Slavery Societies], overwhelm them
with shame, disgrace, and ruin, or you are not good citizens
fulfilling the bonds that bind you to us of the South."
The government Attorney declared that Mr. Hanway and others
"Had no right to refuse to assist because it was repugnant
to their consciences. Conscience! Conscience ... is the
pretended justification for an American citizen to refuse to
execute a law of his country." "_Damnable, treasonable
doctrine._" "He has become a conspirator, he has connected
himself with them, and all their acts are his acts, and all
their intentions are his intentions."
"The whole neighborhood was not only disloyal, but wanting
in common humanity:" "the whole region is infected," "in
_that horde of traitors_;" "a whole county, a whole
township, a whole neighborhood are involved in plotting
treason." "When you see these things _can you not infer ...
that he went there by pre-arrangement_!" "When you see a man
... not saying one word to save his dear colored friends
from the guilt of murder, I say it is passing human
credulity to say that you cannot _infer_ in all that _a
feeling of hostility to the law, and an intention to resist
it_."
"The consequences [of the verdict] are not with the jury:"
the responsibility will not be with you--you are not
responsible for those just consequences."
"When you allege that a master has come into Pennsylvania
and illegally seized and possessed himself of his slave
without process, you are to inquire, 'Has he done that which
he had authority to do in his own State?' You are to look to
the _laws of his own State_; for the Supreme Court
says,[179] 'He _has the same right to repossess his slave
here as in his own State_.'" "He who employs a man said to
have come from Maryland without being satisfied of his
freedom, is himself guilty of the first wrong."
[Footnote 179: 16 Peters, Prigg _v._ Penn.]
Senator Cooper closed for the government. Law was not enough for him;
he would have the sanction of "Religion" also. So he read extract from
a Sermon. Gentlemen of the Jury, you have not had the benefit of Rev.
Dr. Adams's prayers in this court; it is a pity you should not be
blessed with the theology of despotism; listen therefore to the
"Thanksgiving Sermon" of Rev. Dr. Wadsworth, which Hon. Mr. Cooper
read to the Jury in Independence Hall.
"For passing by all other causes of irritation as just now
secondary and subordinate, look for a moment, at the
influence which the Gospel of Christ would have in this
great sectional controversy about slavery.
"First, It would say to the Northern fanatic, who _vapors
about man-stealing_ as if there were no other evil under the
sun but this one evil of Slavery--it would say to him,
Emulate the spirit of your blessed Master and his apostles,
_who, against this very evil_ [man-stealing] in their own
times, _brought no railing accusation_; but in one instance
at least, _sent back a fugitive_ from the household of
Philemon.
"In treating Southern _Christian slaveholders_ with
Christian courtesy, and _sending back their fugitives_ when
apprehended among you, you neither indorse the system nor
partake of its evil; you are only performing in good faith
the agreement, and redeeming the pledges of your
forefathers, and leaving to each man for himself to answer
for his own acts at the judgment-seat of Jesus. It would
tear away from the man, as the foulest cloak of hypocrisy,
that pretence of a religious principle in this whole matter
of political abolitionism.
"Religious principle! Oh my God! That religious principle,
that for the sake of _an abstract right_ whose very exercise
were disastrous to the unprepared bondmen who inherit it,
would tear this blest confederacy in pieces, and deluge
these smiling plains in fraternal blood, and barter the
loftiest freedom that the world ever saw, for the armed
despotism of a great civil warfare! That religious principle
which, in disaster to man's last great experiment, would
fling the whole race back into the gloom of an older
barbarism--rearing out of the ruin of these free homes, the
thrones of a more adamantine despotism--freedom's beacons
all extinguished, and the whole race slaves. That religious
principle through which, losing sight of God's great purpose
of evangelizing the nations, [by American Slavery,] would
shatter the mightiest wheel in the mechanism of salvation,
and palsy the wing of God's preaching angel in its flight
through the skies.
"Alas--alas! ye that count as little this bond of blessed
brotherhood, wrought by our fathers' mighty hands and
bleeding hearts--we tell you, sorrowing and in tears, that
your pretence is foul hypocrisy. Ye have reversed the first
precept of the gospel, for your wisdom is a dove's, and your
harmlessness a serpent's. _Ye have not the first principle
within you either of religion or philanthropy, or common
human benevolence._ Your principle is the principle of Judas
Iscariot, and with the doom of the traitor ye shall go to
your own place."
"No, Sir--no, Sir," concludes the Senator thirsting for his
constituent's blood, "'There is no gospel in all this treasonable
fanaticism--for treason to my country is rebellion to my God.'"
Judge Grier charged the Jury;--but as _he stuck out from the
phonographer's report_--of which the proof-sheets were sent to
him--_the most offensive portion_, Gentlemen of the Jury, I shall not
be able to enlighten you with all the legal words of this "consummate
judge." So be content with the following Elegant Extracts.
"With the exception of a few individuals of perverted
intellect in some small districts or neighborhoods whose
moral atmosphere has been tainted and poisoned by male and
female vagrant lecturers and conventions, no party in
politics, no sect of religion, or any respectable numbers or
character can be found within our borders, who have viewed
with approbation or have looked with any other than feelings
of abhorrence upon this disgraceful tragedy."
"It is not in this Hall of Independence that meetings of
infuriated fanatics and unprincipled demagogues have been
held to counsel a bloody resistance to the laws of the land.
It is not in _this_ city that conventions are held
denouncing the Constitution, the Laws, and the Bible. It is
not _here_ that the pulpit has been desecrated by seditious
exhortations, teaching that theft [a man stealing his own
limbs and person from his 'lawful owner'] is meritorious,
murder [in self-defence killing a man-stealer] excusable,
and treason [opposition to the fugitive slave bill] a
virtue!"
"The guilt of this foul murder [the shooting of a kidnapper
by the men whom he intended for his victims, and whose
premises he invaded without due process of law, and with
armed force], rests not alone on the deluded individuals who
were its immediate perpetrators, but the blood taints with
even deeper dye the skirts of those who promulgated
doctrines subversive of all morality and all government,
[that is, of Slavery and the fugitive slave bill]."
"This murderous tragedy is but the necessary development of
principles and the natural fruit from seed sown by others
whom the arm of the law cannot reach," [such as the Authors
of the Declaration of Independence, and still more the
Author of the "Sermon on the Mount]."
"This [the slave clause of the Constitution] is the Supreme
law of the land, _binding ... on the conscience_ and conduct
of every individual citizen of the United States." "The
shout of disapprobation with which this [the fugitive slave
bill] has been received by some, has been caused ... because
it is an act which can be executed ... the real objection
... is to the Constitution itself, which is supposed to be
void in this particular, from the effect of some 'higher
law.' It is true that the number of persons whose
consciences affect to be governed by such a law [that is the
law of Natural Morality and Religion], is very small. But
there is a much larger number who take up opinions on
trust,--and have concluded this must be a very pernicious
and unjust enactment, for no other reason than because the
others shout their disapprobation with such violence and
vituperation."
"This law is Constitutional." "The question of its
Constitutionality is to be settled by the Courts, [fugitive
slave bill courts,] and not by conventions either of laymen
or ecclesiastics." "_We are as much bound to support this
law as any other._" "The jury should regard the construction
of the Constitution as given them by the court as to what is
the true meaning of the words _levying war_." "In treason
all are principals, and a man may be guilty of aiding and
abetting, though not present."
He spoke of those "associations, or conventions, which occasionally or
annually infest the neighboring village of West-Chester, for the
purpose of railing at and resisting the Constitution and laws of the
land [that is the fugitive slave bill and other laws which annihilate
a man's unalienable right to his liberty], and denouncing those who
execute them as no better than a Scroggs or a Jeffreys;--who stimulate
and exhort poor negroes to the perpetration of offences which they
know must bring them to the penitentiary or the gallows."
But he thought refusing to aid the deputy marshal in kidnapping was
not an act of levying war, or treason against the United States. "In
so doing he is not acting the part of an honest, loyal citizen [who
ought to do any wickedness which a bum-bailiff commands]; he may be
_liable to be punished for a misdemeanor for his refusal to
interfere_."
"But he thought the government was right "in procuring an
indictment for Treason." For "meetings had been held in many
places in the North, denouncing the law, and advising a
traitorous resistance to its execution: conventions of
infuriated fanatics had invited to acts of rebellion; and
even the pulpit had been defiled with furious denunciations
of the law, and exhortations to a rebellious resistance to
it.
"The government was perfectly justified in supposing that
this transaction was but the first overt act of a
treasonable conspiracy, extending over many of the Northern
States, to resist by force of arms the execution of this
article of the Constitution and the laws framed in pursuance
of it. In making these arrests, and having this
investigation, the officers of government have done no more
than their strict duty.
"The activity, zeal, and ability, which have been exhibited
by the learned Attorney of the United States, in endeavoring
to bring to condign punishment the perpetrators of this
gross offence, are deserving of all praise. _It has given
great satisfaction to the Court also, that the learned
Attorney-General of Maryland, and the very able counsel
associated with him_ [Senator Cooper of Pennsylvania] _have
taken part in this prosecution_."
In about fifteen minutes the Jury returned a verdict of "NOT
GUILTY."[180]
[Footnote 180: See Report of Trial of Castner Hanway, Phil. 1852.]
* * * * *
(4.) On the 29th of April, 1852, a man named William Smith was
arrested by Commissioner McAllister of Columbia, Pennsylvania, on
complaint of one Ridgeley of Baltimore. While in the custody of the
officers, Smith endeavored to escape, and Ridgeley drew a pistol and
shot him dead. The murderer escaped. No serious efforts were made by
the State authorities to bring that offender to justice. "He has the
same right to repossess his slave here as in his own State;" the same
right to kill him if he attempts to escape! Mr. Toombs is modest--but
we shall soon see the slaveholder not only sit down with his slaves at
the foot of Bunker Hill Monument, but _shoot them if they attempt to
run away_! Nay, Gentlemen, we shall see this Court defending the
slave-hunter's "privilege."
(5.) Here is another case, Gentlemen of the Jury, in which this same
Judge Grier appears, and with his usual humanity. This is a brief
account of the case of Daniel Kauffman. In 1852 he allowed a party of
fugitive slaves to pass the night in his barn, and gave them food in
the morning. For this he was brought before Judge Grier's court and
fined $2,800! It was more than his entire property. Gentlemen, there
are persons in this room who gave money to Mr. Kauffman, to indemnify
him for his losses; were not they also guilty of treason, at least of
a "misdemeanor?" They "evinced an express liking" for Freedom and
Humanity, not Slavery and bloodshed.
(6.) But here is yet one more,--which you shall have in the language
of another:--
"In a case of attempted Slave-catching at Wilkesbarre, in
Pennsylvania, the Deputy Marshal, Wyncoop and his
assistants, had behaved with such atrocious and abominable
cruelty, that the citizens felt that justice demanded their
punishment for the outrage. They were, accordingly, arrested
on a warrant issued by a most respectable magistrate, on the
oath of one of the principal inhabitants of the place. A
writ of habeas corpus was forthwith sued out, returnable
before Judge Grier. When the District Attorney, Ashmead,
moved the discharge of the relators, (which, it is needless
to say, was ordered,) Judge Grier delivered himself to the
following effect. 'If _habeas corpuses_ are to be taken out
after that manner, _I will have an indictment sent to the
United States Grand-Jury against the person who applies for
the writ, or assists in getting it, the lawyer who defends
it, and the sheriff who serves the writ_, to see whether the
United States officers are to be arrested and harassed
whenever they attempt to serve a process of the United
States.'"
2. Gentlemen of the Jury, you might suppose that love of liberty had
altogether vanished from the "Free" States, else how could such men
ride over the local law as well as natural justice? But I am happy to
find one case where the wickedness of the fugitive slave bill courts
was resisted by the people and the local judges--it is a solitary
case, and occurred in Wisconsin:--
"About the middle of March, 1854, a man named Joshua Glover,
was seized near Racine, in Wisconsin, as a Fugitive Slave.
His arrest was marked by the circumstances of cruelty and
cowardice which seem to be essential to the execution of
this Law above all others. He was brought, chained and
bleeding, to Milwaukee, where he was lodged in jail. As soon
as the news spread, an indignation, as general as it was
righteous, prevailed throughout the city. A public meeting
was forthwith called, and held in the open air, at which
several of the principal citizens assisted. Stirring
speeches were made, and strong resolutions passed, to the
effect that the rights of the man should be asserted and
defended to the utmost. Counsel learned in the law
volunteered, and all necessary process was issued, as well
against the claimant for the assault and battery, as in
behalf of the man restrained of his liberty. A vigilance
committee was appointed to see that Glover was not secretly
hurried off, and the bells were ordered to be rung in case
any such attempt should be made. But the people were not
disposed to trust to the operation of the Slave Law,
administered by United States Judges or Commissioners, and
they stepped in and settled the question for themselves in a
summary manner. A hundred men arrived, in the afternoon,
from Racine, the town from which the man had been kidnapped,
who marched in order to the jail. They were soon reinforced
by multitudes more, and a formal demand was made for the
slave. This being denied, an attack was made upon the door,
which was soon broken in, the man released, and carried back
in triumph to Racine, whence he was afterwards conveyed
beyond the jurisdiction of the star-spangled banner. A mass
convention of the citizens of Wisconsin was afterwards held
to provide for similar cases, should they occur, and a most
sound and healthy tone of feeling appears to have pervaded
that youthful commonwealth.
"After the rescue had been effected, the United States
Marshal arrested several persons for the offence of
resisting an officer in the discharge of his duties. Among
these was Mr. Sherman M. Booth, the editor of the Free
Democrat. When brought before a Commissioner, in the custody
of the Marshal, a writ of habeas corpus was sued out on his
behalf, and he was brought before Judge A.D. Smith, of the
Supreme Court. After a full hearing, Judge Smith granted him
his discharge, on the ground that the fugitive slave law
was unconstitutional. The Marshal then had the proceedings
removed by a writ of certiorari before a full bench of the
Supreme Court, when the decision of Judge Smith was
confirmed, and Mr. Booth discharged from custody.
Immediately afterwards, Judge Miller, of the United States
District Court, issued another warrant for the arrest of Mr.
Booth, making no mention of the fugitive slave act, but
directing his arrest to answer to a charge for abetting the
escape of a prisoner from the custody of the United States
Marshal. Another writ of habeas corpus was sued out, but it
was denied by the Supreme Court, on the ground that there
was nothing on the face of the record to bring it within
range of their former decision."
"In the mean time the United States Judge and Marshal were
busy in their vocation. It affirmed that the Grand-Jury was
packed in the most unblushing manner, until an inquest was
made up that would answer the purpose of the Government.
However this may have been, indictments were found in the
District Court, against Mr. Booth and several other persons.
A petty Jury selected with the same care that had been
bestowed on the composition of the Grand-Jury, convicted Mr.
Booth and Mr. Ryecraft. All the weight of the government was
thrown against the defendants. Special counsel were retained
to assist the District Attorney, the instructions of the
Court were precise and definite against them; all motions in
their behalf resting on the irregularities and injustices of
the proceedings were overruled. So were all motions
subsequent to the conviction for an arrest of judgment. They
were sentenced to fine and imprisonment--Mr. Booth to pay
one thousand dollars and costs, and to be imprisoned one
month, and Mr. Ryecraft to pay two hundred dollars, and to
be imprisoned for ten days. On these sentences they were
committed to jail. The public excitement in Milwaukee, and
throughout the State, was intense. It was with difficulty
that the people could be restrained from forcibly liberating
the prisoners. Fortunately there was no occasion for any
such extreme measures. They found protection, where it ought
to be found, in the constituted authorities of their State.
A writ of habeas corpus was issued in their behalf by the
Supreme Court, then sitting at Madison, the Capital of the
State, returnable before them there. Escorted by two
thousand of their fellow-citizens, thither, in charge of the
High Sheriff, they had a hearing at once. After full
deliberation, the Court unanimously ordered them to be
discharged. The majority of the Court made this decision on
the ground of the unconstitutionality of the fugitive slave
law, one Judge (Crawford) sustaining the law, but concurring
in the order on the ground that no offence, under that Act,
was charged in the indictment. So the prisoners were
discharged, and brought home in triumph."
Gentlemen, that matter will be carried up to the Supreme Court of the
United States, and you may yet hear the opinion of the Hon. Associate
Justice Curtis, for which let us wait with becoming reverence.
* * * * *
3. Here is the case of Mr. Sloane, which happened in the State of
Ohio.
In October, 1852, several colored persons were about leaving Sandusky
in a steamer for Detroit, when they were seized and taken before Mr.
Follet, mayor of the city, and claimed as fugitive slaves. This
seizure was made by the city marshal and three persons claiming to act
for the owners of the slaves.
After the colored persons were brought before the mayor, their friends
engaged Mr. Rush R. Sloane to act as counsel in their defence. He
demanded of the mayor and the claimants by what authority the
prisoners were detained. There was no reply. He then asked, whether
they were in the custody of a United States Marshal or Commissioner.
Again there was no reply. He next called for any writs, papers, or
evidences by which they were detained. Still there was no answer. He
then said to his clients, "_I see no authority to detain your colored
friends._"
At that time some one near the door cried out, "Hustle them out," and
soon the crowd and the alleged fugitives were in the street. Then one
of the claimants said to Mr. Sloane, "I own these slaves; they are my
property, and I shall hold you individually liable for their escape."
_These were the first and only words he spoke to Mr. Sloane, and then
not until the black men were in the street._
In due time Mr. Sloane was arrested for resisting the execution of the
fugitive slave bill, though he had _only acted as legal counsel for
the alleged slaves and had offered no resistance to the law, by deed,
or word, or sign_.
He was brought to trial at Columbus. Before the jurors were sworn they
were all asked "whether they had any conscientious scruples against
the fugitive slave law, and would hesitate to convict under it." If
they said "Yes," they were rejected. Thus a jury was packed for the
purpose, and the trial went on. Thirteen unimpeached witnesses deposed
to the facts stated before, while the slave claimant had no evidence
but the _city marshal_ of Sandusky--the Tukey of that place--and _two
of the three slave-catchers_--who swore that they had with them
_powers of attorney for the seizure of twenty-four slaves_.
Gentlemen, such was the action of the court, and such the complexion
of the packed jury, that Mr. Sloane was found "guilty." The Judge,
Hon. Mr. Leavitt, refused to sign a bill of exceptions, enabling him
to bring the matter before the Supreme Court. Mr. Sloane was sentenced
to pay a fine of $3,000, and $930 _as costs of court_! Such was the
penalty for a lawyer telling his clients that he saw no authority to
detain them,--after having three times demanded the authority, and
none had been shown!
* * * * *
4. Gentlemen of the Jury, I now come to cases which have happened in
our own State,--in this city. Some alarm was felt as soon as Mr.
Mason's fugitive slave bill was proposed in the Senate. But men said,
"No northern man will support it. There is much smoke and no fire."
But when on the 7th of March, 1850, Mr. Webster adopted the bill, and
promised to defend it and the amendments to it, "with all its
provisions to the fullest extent;" when he declared that Massachusetts
would execute the infamous measure "with alacrity"--then not only
alarm but indignation took possession of northern breasts. The friends
of Slavery at Boston must do all in their power to secure the passage
of the bill, the prosperity of its adoptive father, and its ultimate
enforcement--the kidnapping of men in Massachusetts. Here are the
measures resorted to for attaining this end.
i. A meeting was called at the Revere House, that Mr. Webster might
defend his scheme for stealing his constituents and putting himself
into the Presidency.
ii. A public letter was written to him approving of his attempts to
restore man-stealing, and other accompaniments of slavery, to the free
States. This letter declared the "deep obligations" of the signers
"for what this speech has done and is doing;" "we wish to thank you,"
they say, "for recalling us to our duties under the constitution;"
"you have pointed out to a whole people the path of duty, have
convinced the understanding, and touched the conscience of the
nation;" "we desire, therefore, to express to you our entire
concurrence in the sentiments of your speech." This letter was dated
at Boston, March 25th, 1850, and received 987 signatures, it is said.
iii. When the bill became an Act of government, a hundred cannons, as
I have before stated, were fired on Boston Common in token of joy at
the restoration of slavery to our New England soil.
iv. Articles were written in the newspapers in defence of kidnapping,
in justification of the fugitive slave bill. The _Boston Courier_ and
_Boston Daily Advertiser_ gave what influence they had in support of
that crime against America.
v. Several ministers of Boston came out and publicly, in sermons in
their own pulpits, defended the fugitive slave bill, and called on
their parishioners to enforce the law!
Gentlemen of the Jury, need I tell you of the feelings of the
Philanthropists of Boston,--of the colored citizens who were to be the
victims of this new abomination! Within twenty-four hours of its
passage more than thirty citizens of Boston, colored citizens, fled in
their peril to a man whose delight it is to undo the heavy burthens
and let the oppressed go free. While others were firing their joyful
cannon at the prospect of kidnapping their brothers and sisters,
Francis Jackson helped his fellow Christians into the ark of
Deliverance which he set afloat on that flood of Sin. Gentlemen, he is
here to-day--he is one of my bondsmen. There are the others--this
venerable gentleman [Samuel May], this steadfast friend [John R.
Manley.]
vi. It was not long before the kidnappers came here for their prey.
(1.) I must dwell a moment on the first attempt. Gentlemen of the
Jury, you know the story of William and Ellen Craft. They were slaves
in Georgia; their master was said to be a "very pious man," "an
excellent Christian." Ellen had a little baby,--it was sick and ready
to die. But one day her "owner"--for this wife and mother was only a
piece of property--had a dinner party at his house. Ellen must leave
her dying child and wait upon the table. She was not permitted to
catch the last sighing of her only child with her own lips; other and
ruder hands must attend to the mother's sad privilege. But the groans
and moanings of the dying child came to her ear and mingled with the
joy and merriment of the guests whom the mother must wait upon. At
length the moanings all were still--for Death took a North-side view
of the little boy, and the born-slave had gone where the servant is
free from his master and the weary is at rest--for _there_ the wicked
cease from troubling. Ellen and William resolved to flee to the North.
They cherished the plan for years; he was a joiner, and hired himself
of his owner for about two hundred dollars a year. They saved a little
money, and stealthily, piece by piece, they bought a suit of
gentleman's clothes to fit the wife; no two garments were obtained of
the same dealer. Ellen disguised herself as a man, William attending
as her servant, and so they fled off and came to Boston. No doubt
these Hon. Judges think it was a very "immoral" thing. Mr. Curtis
knows no morality here but "legality." Nay, it was a wicked thing--for
Mr. Everett, a most accomplished scholar, and once a Unitarian
minister, makes St. Paul command "SLAVES, obey your masters!" Nay,
Hon. Judge Sprague says it is a "precept" of our "Divine Master!"
Ellen and William lived here in Boston, intelligent, respected, happy.
The first blow of the fugitive slave bill must fall on them. In
October, 1850, one Hughes, a jailer from Macon, Georgia, a public
negro-whipper, who had once beaten Ellen's uncle "almost to death,"
came here with one Knight, his attendant, to kidnap William and Ellen
Craft. They applied to Hon. Mr. Hallett for a writ. Perhaps they had
heard (false) rumors that the Hon. Commissioner was "a little slippery
in his character;" that he was "not overscrupulous in his conduct;"
that he "would do any dirty work for political preferment." Gentlemen,
you know that such rumors will get abroad, and will be whispered of
the best of men. Of course you would never believe them in this case:
but a kidnapper from Georgia might; "distance lends" illusion, as well
as "enchantment, to the view." But be that as it may, Mr. Hallett (in
1850) appeared to have too much manhood to kidnap a man. He was better
than his reputation; I mean his reputation with Knight and Hughes, and
would not (then) steal Mr. and Mrs. Craft. This is small praise; it is
large in comparison with the conduct of his official brethren. But
for the salvation of the Union another Commissioner was found who had
no such scruples. This Honorable Court--Mr. Woodbury was then in the
chief place, and Mr. Sprague in his present position--issued the writ
of man-stealing. Two gentlemen of this city were eminently, but
secretly, active in their attempt to kidnap their victim. I shall
speak of them by and by. Somebody took care of Ellen Craft. William
less needed help; he armed himself with pistols and a poignard, and
walked in the streets in the face of the sun. He was a tall, brave
man, and was quite as cool then as this Honorable Court is now, while
I relate their "glorious first essay" in man-stealing. Public opinion
at length drove the (southern) kidnappers from Boston. Then the Crafts
also left the town and the country, and found in the Monarchical
Aristocracy of Old England what the New England Democracy refused to
allow them--protection of their unalienable right to Life, Liberty,
and the pursuit of Happiness.
Gentlemen, the Evangelists of slavery could not allow a Southern
kidnapper to come to Boston and not steal his man: they were in great
wrath at the defeat of Hughes and Knights. So they procured a meeting
at Faneuil Hall to make ready for effectual kidnapping and restoring
Slavery to Boston. "The great Union meeting" was held at Faneuil Hall
November 26th, 1850,--two days before the annual Thanksgiving; it was
"a preparatory meeting" to make ready the hearts of the People for
that dear New England festival when we thank God for the Harvest of
the Land, and the Harvest of the Sea, and still more for the State
whose laws are Righteousness, and the Church that offers us "the
Liberty wherewith Christ hath made us free," "the glorious Liberty of
the Sons of God." Here are the Resolutions which were passed.
"Resolved, That the preservation of the Constitution and the
Union is the paramount duty of all citizens;--that the
blessings which have flowed from them in times past, which
the whole country is now enjoying under them, and which we
firmly believe posterity will derive from them hereafter,
are incalculable; and that they vastly transcend in
importance all other political objects and considerations
whatever.
"Resolved, That it would be folly to deny that there has
been and still is danger to the existence of the Union,
where there is prevalent so much of a spirit of disunion,
constantly weakening its strength and alienating the minds
of one part of the people of the United States from another;
and that if this spirit be not checked and restrained, and
do not give way to a spirit of conciliation and of patriotic
devotion to the general good of the whole country, we cannot
expect a long continuance of the political tie which has
hitherto made us one people; but must rather look to see
groups of rival neighboring republics, whose existence will
be a state of perpetual conflict and open war.
"Resolved, That all the provisions of the Constitution of
the United States--the supreme law of the land--are equally
binding upon every citizen, and upon every State in the
Union;--that ALL laws passed by Congress, in pursuance of
the Constitution, are equally binding on all the citizens,
and no man is at liberty to resist or disobey any one
constitutional act of Congress any more than another; and
that we do not desire or intend to claim the benefit of any
one of the powers or advantages of the Constitution, and to
refuse, or seem to refuse, to perform any part of its
duties, or to submit to any part of its obligations.
"Resolved, That the adjustment of the measures which
disturbed the action of Congress for nearly ten months of
its last session, ought to be carried out by the people of
the United States in good faith, in all the substantial
provisions; _because_, although we may differ with each
other about the details of those measures, yet, in our
judgment, a renewed popular agitation of any of the main
questions then settled, would be fraught with new and
extreme dangers to the peace and harmony of the country,
which this adjustment has happily restored.
"Resolved, That every species and form of resistance to the
execution of a regularly enacted law, except by peaceable
appeal to the regular action of the judicial tribunals upon
the question of its constitutionality--an appeal which ought
never to be opposed or impeded--is mischievous, and
subversive of the first principles of social order, and
tends to anarchy and bloodshed.
"Resolved, That men, who directly or indirectly instigate or
encourage those who are or may be the subjects of legal
process, to offer violent resistance to the officers of the
law, deserve the reprehension of an indignant community, and
the severest punishment which its laws have provided for
their offence; and that we have entire confidence that any
combination or attempt to fix such a blot upon the fair fame
of our State or city, will be promptly rebuked and punished,
by an independent and impartial judiciary, and by firm and
enlightened juries.
"Resolved, That we will at all times, in all places, and
under all circumstances, so far as our acts or influence may
extend, sustain the Federal Union, uphold its Constitution,
and enforce the duty of obedience to the laws."
A singular preparation for a Thanksgiving day in Boston! But on that
festival, Gentlemen, three Unitarian ministers thanked God that the
fugitive slave bill would be kept in all the land!
Several speeches were made at the meeting, some by Whigs, some by
Democrats, for it was a "Union meeting," where Herod and Pilate were
made friends. Gentlemen, I must depart a little from the severity of
this defence and indulge you with some of the remarks of my
distinguished opponent, Hon. Attorney Hallett: then he was merely a
lawyer, and fugitive slave bill Commissioner, appointed "to take bail,
affidavits," and colored men,--he was only an expectant Attorney. His
speech was a forerunner of the "Indictment" which has brought us
together. Hearken to the words of Mr. Hallett in his "preparatory
lecture:"--
"We can now say that there is no law of the United States
which cannot be executed in Massachusetts. If there was any
doubt before, _there can be no doubt now_; and if there be
any wild enough hereafter to resort to a fancied 'Higher
Law' to put down law [that is, the fugitive slave bill],
they will find in your determined will a stronger law to
sustain _all the laws of the United States_." "The
threatened nullification comes from Massachusetts upon a law
[the fugitive slave bill] which the whole South insist is
_vital to the protection of their property and industry_
[much of their "property" and "industry" being addicted to
running away]. _And shall Massachusetts nullify that law?_"
"The question for us to-day is whether we will in good
faith abide by, and carry out these _Peace Measures_ [for
the rendition of fugitive slaves, the new establishment of
Slavery in Utah and New Mexico, and the restoration of it to
all the North] or whether we shall rush into renewed
agitation," etc. "Resort is had to a new form of _moral
treason_ which assumes by the mysterious power of a '_Higher
Law_' to trample down all law [that is, the fugitive slave
bill]. Some of our fellow-citizens have avowed that the
fugitive slave bill is to be treated like the _Stamp Act_,
and never to be enforced in Massachusetts. If that means any
thing, it means that which our fathers meant when they
resisted the Stamp Act and threw the tea
overboard--Revolution.[181] _It_ [opposition to the fugitive
slave bill] _is revolution, or it is treason. If it only
resists law, and obstructs its officers, it is treason; and
he who risks it, must risk hanging for it._"[182]
[Footnote 181: The learned counsel for the fugitive slave bill
confounds two events. The Stamp Act was passed March 22d, 1765, and
repealed the 28th of the next March. The tea was destroyed December
16th, 1773.]
[Footnote 182: Report in Boston Courier of November 27th, 1850.]
Gentlemen, that meeting determined to execute the fugitive slave bill
"with all its provisions, to the fullest extent." It is dreadful to
remember the articles in the Daily Advertiser and the Courier at that
period. Some of the sermons in the Churches of Commerce on the
following Thursday, Thanksgiving day, were filled with the most odious
doctrines of practical atheism. The "preparatory meeting" had its
effect. Soon the seed bore fruit after its kind. But some ministers
were faithful to their Brother and their Lord.
(2.) February 15th, 1851, a colored man named "Shadrach" was arrested
under a warrant from that Commissioner who had been so active in the
attempt to kidnap Mr. and Mrs. Craft. But a "miracle" was wrought:
"where sin abounded Grace did much more abound," and "the Lord
delivered him out of their hands." Shadrach went free to Canada, where
he is now a useful citizen. He was rescued by a small number of
colored persons at noonday. The kidnapping Commissioner telegraphed to
Mr. Webster, "It is levying war--it is treason." Another asked, "What
is to be done?" The answer from Washington was, "Mr. Webster was very
much mortified."
On the 18th, President Fillmore, at Mr. Webster's instigation, issued
his proclamation calling on all well disposed citizens, and
_commanding all officers_, "civil and military, to aid and assist in
quelling this, and all other such combinations, _and to assist in
recapturing the above-named person_" Shadrach. General orders came
down from the Secretaries of War and the Navy, commanding the
_military and naval officers to yield all practicable assistance_ in
the event of such another "_insurrection_." The City Government of
Boston passed Resolutions regretting that a man had been saved from
the shackles of slavery; cordially approving of the President's
proclamation, and promising their earnest efforts to carry out his
recommendations. At that time Hon. Mr. Tukey was Marshal; Hon. John P.
Bigelow was Mayor; Hon. Henry J. Gardner, a man equally remarkable for
his temperance, truthfulness, and general integrity, was President of
the Common Council.
It was not long, Gentlemen, before the City Government had an
opportunity to keep its word.
(3.) On the night of the 3d of April, 1851, Thomas Sims was kidnapped
by two police officers of Boston, pretending to arrest him for theft!
Gentlemen of the Jury, you know the rest. He was on trial nine days.
He never saw the face of a jury, a judge only once--who refused the
_Habeas Corpus_, the great "Writ of Right." That judge--I wish his
successors may better serve mankind--has gone to his own place; where,
may God Almighty have mercy on his soul! You remember, Gentlemen, the
chains round the Court House; the Judges of your own Supreme Court
crawling under the southern chain. You do not forget the "Sims
Brigade"--citizen soldiers called out and billeted in Faneuil Hall.
You recollect the Cradle of Liberty shut to a Free Soil Convention,
but open to those hirelings of the Slave Master. You will never forget
the Pro-Slavery Sermons that stained so many Boston pulpits on the
"Fast-day" which intervened during the mock trial!
Mr. Sims had able defenders,--I speak now only of such as appeared on
his behalf, others not less noble and powerful, aided by their
unrecorded service--Mr. Sewall, Mr. Rantoul, men always on the side of
Liberty, and one more from whose subsequent conduct, Gentlemen of the
Jury, I grieve to say it, you would not expect such magnanimity then,
Mr. Charles G. Loring. But of what avail was all this before such a
Commissioner? Thomas Sims was declared "a chattel personal to all
intents, uses, and purposes whatsoever." After it became plain that he
would be decreed a slave, the poor victim of Boston kidnappers asked
one boon of his counsel, "I cannot go back to Slavery," said he, "give
me a knife, and when the Commissioner declares me a slave I will stab
myself to the heart, and die before his eyes! I will not be a slave."
The knife was withheld! At the darkest hour of the night Mayor Bigelow
and Marshal Tukey, suitable companions, admirably joined by nature as
by vocation, with two or three hundred police-men armed, some with
bludgeons, some with drawn swords and horse pistols, took the poor boy
out of his cell, chained, weeping, and bore him over the spot where,
on the 5th of March, 1770, the British tyrant first shed New England
blood; by another spot where your fathers and mine threw to the ocean
the taxed tea of the oppressor. They put him on board a vessel, the
"_Acorn_," and carried him off to eternal bondage. "And this is
Massachusetts liberty!" said he, as he stepped on board. Boston sent
her Delegates to escort him back, and on the 19th of April, 1851, she
delivered him up to his tormentors in the jail at Savannah, where he
was scourged till human nature could bear no more, while his captors
were feasted at the public cost. Seventy-six years before there was
another 19th of April, also famous!
(4.) Then came the examination and "trial" of the Shadrach Rescuers in
February and the following months. Some of these trials took place
before his Honor Judge Peleg Sprague. Therefore, you will allow me,
Gentlemen, to refresh your memories with a word or two respecting the
antecedents of this Judge--his previous history.
In 1835 the abolition of Slavery in the British West Indies and the
efforts of the friends of Freedom in the Northern States, excited
great alarm at the South, lest the "peculiar institution" should
itself be brought into peril. Fear of a "general insurrection of the
slaves" was talked about and perhaps felt. The mails were opened in
search of "incendiary publications;" a piano-forte sent from Boston to
Virginia, was returned because the purchaser found an old copy of the
"Emancipator" in the case which contained it. Public meetings for the
promotion of American Slavery were held. There was one at Boston in
Faneuil Hall, August 21, 1835, at which a remarkable speech was made
by a lawyer who had graduated at Harvard College in 1812, a man no
longer young, of large talents and great attainments in the law. He
spoke against discussion, and in behalf of Slavery and Slaveholders:
he could see no good, but only unmixed evil "consequent upon agitating
this subject here." He said:--
"When did fear ever induce a man to relax his power over the
object that excited it? No, he will hold him down with a
stronger grasp, he will draw the cords tighter, he will make
the chains heavier and sink his victim to a still deeper
dungeon."
"The language and measures of the abolitionists clearly tend
to insurrection and violence." "They [the slaves] hear that
their masters have no legal or moral authority over them.
That every moment's exercise of such dominion is sin, and
that the laws that sanction it are morally void: that they
are entitled to immediate emancipation, and that their
masters are to be regarded as kidnappers and robbers for
refusing it." "It is deluding these unfortunate beings to
their own destruction, we should not aid them. The
Constitution provides for the suppressing of insurrections
... we should respond to its call [if the slaves attempted
to recover their liberty]; nay, we should not wait for such
a requisition, but on the instant should rush forward with
fraternal emotions to defend our brethren from desolation
and massacre."
"The South will not tolerate our interference with their
slaves, [by our discussing the matter in the newspapers and
elsewhere]." "The Union then, if used to disturb this
institution of Slavery, will be then as the 'spider's web; a
breath will agitate, a blast will sweep it away forever.'"
"If, then, these abolitionists shall go on ... the fate of
our government is sealed.... And who will attempt to fathom
the immeasurable abyss of a dissolution of the Union?"
"Tell the abolitionists this; present to them in full array
the consequences of their attempts at immediate
emancipation, and they meet all by a cold abstraction. They
answer, '_We must do right regardless of consequences._'"
"They assume that such a course [undoing the heavy burthens
and letting the oppressed go free, and loving your neighbor
as yourself] _is_ right. When that is the very point in
controversy, and when inevitable consequences demonstrate
that it must be wrong."
"They [the abolitionists] insist upon immediate,
instantaneous emancipation.... No man, say they, can be
rightfully restrained of his liberty except for crime."
"They come to the conclusion that no laws that sanction or
uphold it [Slavery] can have any moral obligation. The
Constitution is the Supreme law of the land. It does
sanction, it does uphold Slavery; and if this doctrine be
true, that sacred compact has always been [so far] morally
null and void." "He [Washington] THAT SLAVEHOLDER ... came
with other Slaveholders to drive the British myrmidons from
this city and this Hall. Our fathers did not refuse to hold
communion with him or with them. With Slaveholders they
formed the Confederation ... with them they made the
Declaration of Independence." "And in the original draft of
the Declaration was contained a most _eloquent passage upon
this very topic of negro Slavery, which was stricken out in
deference to the wishes of members from the South_."
"Slavery existed then as now." "Our fathers were not less
devoted friends of liberty, not less pure as philanthropists
or pious as Christians than any of their children of the
present day." [Therefore _we_ must not attempt to emancipate
a slave!]
Here is the passage which the speaker thought it so praiseworthy in
the Revolutionary Congress to strike out from the Declaration of
Independence:--
"He [the king] has waged cruel war against human nature
itself, violating its most sacred rights of life and liberty
in the persons of a distant people who never offended him,
captivating and carrying them into slavery in another
hemisphere, or to incur miserable death in their
transportation thither. This piratical warfare, the
opprobrium of INFIDEL nations, is the warfare of the
CHRISTIAN King of Great Britain. Determined to keep open a
market where MEN should be bought and sold, he has
prostituted his negative for suppressing every legislative
attempt to prohibit or to restrain this execrable commerce.
And that this assemblage of horrors might want no fact of
distinguished dye, he is now exciting those very people to
rise in arms among us, and to purchase that liberty of which
he has deprived them, by murdering the people on whom he
also obtruded them: thus paying off former crimes committed
against the LIBERTIES of one people with crimes which he
urges them to commit against the LIVES of another."
Mr. Jefferson says, "It was struck out in _compliance to South
Carolina and Georgia_, who had never attempted to restrain the
importation of slaves, and who, on the contrary, still wished to
continue it. Our Northern brethren also, I believe, felt a little
tender under it, for though their people have very few slaves
themselves, yet they have been pretty considerable carriers of them to
others."
* * * * *
But the orator went on protesting against righteousness:--
"I would beseech them [the Abolitionists] to discard their
dangerous abstractions [that men are endowed by their
Creator with certain natural, equal, and unalienable
Rights--to Life, Liberty, and the Pursuit of Happiness]
which they [in common with the Declaration of Independence]
adopt as universal rules of human conduct--without regard to
time, condition, or circumstances; which _darken the
understanding and mislead the judgment_, and urge them
forward to consequences from which they will shrink back
with horror. I would ask them to reflect that ... the
religion they profess is not to be advanced by forgetting
the precepts and the example of their Divine Master. Upon
that example I would ask them to pause. He found Slavery,
Roman Slavery, an institution of the country in which he
lived. Did he denounce it? Did he attempt its immediate
abolition? Did he do any thing, or say any thing which could
in its remotest tendency encourage resistance and violence?
No, his precept was, 'Servants (Slaves) obey your
Masters.'"[183] "It was because _he would not interfere with
the administration of the laws, or abrogate their
authority_."
[Footnote 183: The learned counsel for the slaveholders probably
referred to Eph. vi. 5; or Coloss. iii. 22; or Tit. ii. 9; or 1 Pet.
ii. 18.]
Gentlemen of the Jury, this alleged precept of the "Divine Master"
does not occur in any one of the four canonical Evangelists of the New
Testament; nor have I found it in any of those Spurious and Apocryphal
Records of old time. It appears originally in the Gospel according to
the Hon. Peleg Sprague. "Slaves, obey your masters," "a comfortable
Scripture" truly; a beatitude for the stealers of men!
Gentlemen of the Jury, that was the language of Mr. Peleg Sprague at
the time when the State of Georgia offered $5,000 for the head of Mr.
Garrison; when the Governors of Virginia and other Slave States, sent
letters to the Governor of Massachusetts asking for "penal statutes"
to prohibit our discussion in Boston; it was the very year that a mob
of "Gentlemen of Property and Standing" in Boston broke up a meeting
of women assembled to endeavor to abolish Slavery. Gentlemen of the
Jury, Mr. Sprague had his reward--he sits on the bench to try me for a
"misdemeanor"--"obstructing, resisting, and opposing an officer of the
United States," "while in the discharge of his duty" to steal a man in
Boston, that his "owner" might sell him in Richmond. The "chief
commandment" of the New Testament is, "Slaves, obey your masters;" on
that commandment he would now hang all the law, and the Abolitionists.
It would take a long time to tell the dark, sad tale of the trial of
the Shadrach Rescuers; how the Judge constructed and charged the Jury;
how he constructed his "law." It was the old story of the Stuart
despotism, wickedness in the name of the law and with its forms.
Gentlemen, in that trial you saw the value of the jury. The Judges of
Massachusetts went under the chain which the kidnappers placed about
the Court House in 1851. The Federal Judges sought to kidnap the
citizens of Boston and to punish all such as opposed man-stealing. The
Massachusetts Judges allowed the law, which they had sworn to execute,
to be struck down to the ground; nay, themselves sought to strike it
down. The Federal Judges perverted the law to make it an instrument of
torture against all such as love mankind. But the jury held up the
Shield of Justice, and the poisoned weapons of the court fell blunted
to the ground. The government took nothing by that motion--nothing but
defeat. There was no conviction. One of the jurors said, "You may get
one Hunker on any panel; it is not easy to get twelve. There was no
danger of a conviction." But still it is painful to think in what
peril our lives and our liberties then were.
(5.) At length came the "Burns case." You know it too well. On the
night of Wednesday, May 26, 1854, in virtue of Commissioner Loring's
warrant, Anthony Burns was arrested on the charge of burglary, and
thrust into jail. The next morning he was brought up for condemnation.
Two noble men, Mr. Dana and my friend Mr. Ellis, defended Mr. Burns.
There was to be no regular trial before Commissioner Loring.
On the evening of Friday, May 28th, there was a meeting at Faneuil
Hall, and an attack on the Court House where Mr. Burns was illegally
held in duress. In the attack a Mr. Batchelder was killed,--a man
hired to aid in this kidnapping, as he had been in the stealing of Mr.
Sims. To judge from the evidence offered before the Grand-Jury of the
Massachusetts Court, and especially from the testimony of Marshal
Freeman, it appears he was accidentally killed by some of his own
confederates in that wickedness, and before the door of the Court
House was broken through. But that is of no consequence: as Mr. Dana
has said, "He went in for his pay, and has got his _corn_." On Friday,
June 4th, Mr. Burns was declared a slave by Commissioner Loring and
delivered up to eternal bondage.
It seems to be in consequence of my connection with this case that I
am indicted; so you now approach the end of this long defence. I come
to the last part of it.
* * * * *
(III.) Of the Indictment against Theodore Parker.
I am indicted, gentlemen, for "resisting an officer" who was engaged
in kidnapping Mr. Burns; and it is charged that I, at Boston, May
26th, "with force and arms did knowingly and wilfully, obstruct,
resist, and oppose, ... Watson Freeman, then and there being an
officer of the United States, to the great damage of the said Watson
Freeman; to the great hinderance and obstruction of justice, [to wit,
of the kidnapping of Anthony Burns,] to the evil example of all others
in like case offending, against the peace and dignity of the said
United States and contrary to the form of the statute made and
provided."
It is also charged that "one Theodore Parker of Boston, ... with
force and arms in and upon the said Watson Freeman, then and there, in
the peace of the said United States being, an assault did make, he the
said Freeman also then and there being an officer of the said United
States, to wit, Marshal of the United States, ... and then and there
also being in the due and lawful discharge of his duties as such
officer" [to wit, stealing and kidnapping one Anthony Burns]. These
and various other pleasant charges, Mr. Hallett, in the jocose manner
of indictments, alleges against me; wherefrom I must defend myself, as
best I may.
* * * * *
Now, Gentlemen, that you may completely understand the accusation
brought against me, I must go back a little, and bring up several
other matters of fact that have straggled away from this long column
of argument which I have led into the field thus far;--and also rally
some new forces not before drawn into the line of defence. I must
speak of the Hon. Justice Curtis; of his conduct in relation to
Slavery in general, to this particular prosecution, and to this
special case, _United States_ vs. _Theodore Parker_.
First, Gentlemen, let me speak of some events which preceded Mr.
Curtis's elevation to his present distinguished post. To make the
whole case perfectly clear, I must make mention of some others
intimately connected with him.
There is a family in Boston which may be called the Curtis family. So
far as it relates to the matter in hand, it may be said to consist of
six persons, namely, Charles P. Curtis, lawyer, and Thomas B. Curtis,
merchant, sons of the late Thomas Curtis; Benjamin R. Curtis, by birth
a kinsman, and by marriage a son-in-law of Charles P. Curtis, late a
practising lawyer, now this Honorable Judge of the Supreme Court of
the United States, and his brother, George T. Curtis, lawyer, and
United States Commissioner for the District of Massachusetts; Edward
G. Loring, a step-son of the late Thomas Curtis, and accordingly
step-brother of Charles P. and Thomas B. Curtis, lawyer, Judge of
Probate for Boston, United States Commissioner, and, until recently,
Lecturer at the Cambridge Law School; and also William W. Greenough,
son-in-law of Charles P. Curtis, merchant.
This family, though possessing many good qualities, has had a
remarkably close and intimate connection with all, or most, of the
recent cases of kidnapping in Boston. Here are some of the facts, so
painful for me to relate, but so indispensable to a full understanding
of this case.
1. In 1836 Charles P. Curtis and Benjamin R. Curtis appeared as
counsel for the slave-hunters in the famous case of the girl Med,
originally a slave in the West Indies, and brought to Boston by her
mistress. Med claimed her freedom on the ground that slavery was not
recognized by the laws of Massachusetts, and could not exist here
unless it were in the special case, under the Federal Constitution, of
fugitives from the slave States of this Union. The Messrs. Curtis
contended with all their skill--_totis viribus_, as lawyers say--that
slavery might, by legal comity, exist in Massachusetts--that slaves
were property by the law of nations; and that an ownership which is
legal in the West Indies continued in Boston, at least so far as to
leave the right to seize and carry away.
Mr. Charles P. Curtis had already appeared as counsel for a
slave-hunter in 1832, and had succeeded in restoring a slave child,
only twelve or fourteen years of age, to his claimant who took him to
Cuba with the valuable promise that he should be free in the Spanish
West Indies.[184]
[Footnote 184: Daily Advertiser, Dec. 7th, 1832. Mr. Sewall, the early
and indefatigable friend of the slave, asked the Court to appoint a
guardian _ad litem_ for the child, who was not 14, who should see that
he was not enslaved. But the slaveholder's counsel objected, and the
Judge (Shaw) refused; yet to his honor be it said in a similar case in
1841, when Mr. Sewall was counsel for a slave child under the same
circumstances, he delivered him to a guardian appointed by the Probate
Court. 3 Metcalf, 72.]
In the Med case Mr. Benjamin R. Curtis made a long and elaborate
argument to show that "a citizen of a slaveholding State, who comes to
Massachusetts for a temporary purpose of business or pleasure and
brings his slave as a personal attendant, may restrain that slave for
the purpose of carrying him out of the State and returning him to the
domicil of his owner." To support this proposition, he made two
points:--
"1. That this child by the law of Louisiana is _now_ a slave."
"2. That the law of Massachusetts will so far recognize and give
effect to the law of Louisiana, as to allow the master to exercise
this restricted power over his slave." That is, the power to keep her
here as a slave, to remove her to Louisiana, and so make her a slave
for ever and her children after her.
To prove this last point he says by quotation, "we always _import_,
together with their persons, _the existing relations of foreigners
between themselves_." So as we "import" the natural relation of
husband and wife, or parent and child, in the Irish immigrants, and
respect the same, we ought equally to import and respect the unnatural
and forcible relation of master and slave in our visitors from Cuba or
Louisiana.
"It will be urged," he said, "that though we claim to
exercise only a qualified and limited right over the slave,
namely the right to remove him from the State, yet if this
is allowed, all the rights of the master must be allowed,
... and thus Slavery will be introduced into the
Commonwealth. To this I answer,
"(1.) There is no practical difficulty in giving this
qualified effect to the law of Louisiana, [allowing the
master to bring and keep his slaves here and remove them
when he will]. The Constitution of the United States has
settled this question. That provides for and secures to the
master, the exercise of his right to the very extent claimed
in this case."
"(2.) Neither is there any theoretical difficulty."
To do this, he thinks, will "promote harmony and good feeling, where
it is extremely desirable to promote it, encourage frequent
intercourse, and soften prejudices by increasing acquaintance, and
tend to peace and union and good-will." "It will work no injury to the
State [Massachusetts], by violating any public law of the State. The
only law in the statute-book applicable to the subject of Slavery is
the law against kidnapping." "It will work no direct injury to the
citizens of this State for, ... it respects only strangers." "It is
consistent with the public policy of Massachusetts, to permit this ...
right of the master." "_It may be perfectly consistent with our policy
not only to recognize the validity and propriety of those
institutions_ [of Slavery] _in the States where they exist_, but _even
to interfere actively to enable the citizens of those States to enjoy
those institutions at home._" That is, it may be the duty of
Massachusetts, "to interfere actively" in Louisiana for the
establishment and support of Slavery there!
Pennsylvania, New York, New Jersey, and Rhode Island, he adds, have
made laws allowing the slaveholder this right: "The legislatures of
those States are the legitimate and highest authority in regard to
their public policy; what they have declared on this subject, must be
deemed to be true.... We are not at liberty to suppose that it is
contrary to their public policy, that the master should exercise this
right within their territory. I respectfully ask what difference there
is between the policy of Pennsylvania, New York, Rhode Island, and New
Jersey, and the policy of Massachusetts, on the subject of Slavery."
"I shall now attempt," he adds, "to prove that _Slavery is not
immoral_." How do you think he proved that? Did he cite the Bible? No,
he left that to lower law divines. Did he manufacture Bible? No, the
Hon. Peleg Sprague had sufficiently done that a year before. He took a
shorter cut--he denied there was any morality but Legality. "I take it
to be perfectly clear," said this young man in all the moral
enthusiasm of his youth, "that the Standard of Morality by which
Courts of Justice are to be guided is that which the law prescribes.
Your Honors' Opinion as Men or as Moralists has no bearing on the
question. Your Honors are to declare what the Law deems moral or
immoral."
Gentlemen, that needs no comment; this trial is comment enough. But
according to that rule no law is immoral. It was "not immoral" in 1410
to hang and burn thirty-nine men in one day for reading the Bible in
English; the Catholic Inquisition in Spain was "not immoral;" the
butchery of Martyrs was all right soon as lawful! There is no Higher
Law!
It was "not immoral" for the servants of King Pharaoh to drown all the
new-born Hebrew boys; nor for Herod's butchers to murder the Innocents
at Bethlehem. Nay, all the atrocities of the Saint Bartholomew
Massacres, Gentlemen, they were "not immoral," for "the Standard of
Morality" is "that which the law prescribes." So any legislature that
can frame an act, any tyrant who can issue a decree, any court which
can deliver an "opinion," can at once nullify the legislation of the
Universe and "dissolve the union" of Man and God: "Religion has
nothing to do with politics; there it makes men mad." Is that the
doctrine of Young Massachusetts? Hearken then to the Old. In 1765 her
House of Representatives unanimously resolved that "there are certain
essential Rights ... which are founded on the Law of God and Nature,
and are the Common Rights of Mankind, and that the inhabitants of this
Province are unalienably entitled to these essential Rights in common
with all men, and _that no law of Society ... can divest them of these
Rights_." No "Standard of Morality" but Law! A thousand years before
Jesus of Nazareth taught his Beatitudes of Humanity, the old Hebrews
knew better. Hearken to a Psalm nearly three thousand years old.
Among the assemblies of the great,
A Greater Ruler takes his seat;
The God of Heaven, as Judge, surveys
Those Gods on earth, and all their ways.
Why will ye, then, frame wicked laws?
Or why support the unrighteous cause?
When will ye once defend the poor,
That sinners vex the Saints no more?
Arise, oh Lord, and let thy Son
Possess his universal Throne,
And rule the nations with his rod;
He is our Judge, and he our God.
"By the _law of this Commonwealth_," added Mr. Curtis, "_Slavery is
not immoral._ By the Supreme law of this Commonwealth Slavery is not
only recognized as a valid institution, but to a certain extent is
incorporated into our own law. Before you [the court] rise from your
seats, you may be called upon by the master of a fugitive slave, to
grant a certificate ... which _will put the whole force of the
Commonwealth at his disposal, to remove his slave from our
Territory_."
Gentlemen of the Jury, that was conquering his prejudices "with
alacrity;" it was obeying the fugitive slave bill fourteen years
before it was heard of.
He adds still further, by quotation, "I have no doubt but the citizen
of a Slave State has a right to pass, upon business or pleasure,
through any of the States attended by his slaves--and his right to
reclaim his slave would be unquestioned. An escape from the attendance
upon the person of his master, while on a journey through a free
State, should be considered as an escape from the State where the
master had a right of citizenship."
Mr. Charles P. Curtis thus sustained his kinsman:--
"Is that to be considered immoral which the Court is bound
to assist in doing? _It is not for us to denounce as_
legally _immoral a practice which is permitted_ and
sanctioned _by the supreme law of the land_!" "It is said
the practice of Slavery is corrupting in its influence on
public morals. But the practice of bringing slaves here was
much more common thirty years ago than now. If this practice
be so corrupting, why is it tolerated in other States?"...
"The law of New York allows even foreigners to go there with
their slaves; and have the morals of that State suffered in
consequence? In Pennsylvania the law is similar, but where
is the evidence of its pernicious influence?" "As to the
_right to using them_, [the slaves voluntarily brought here
by their masters,] _notwithstanding the supposed horror at
such an admission_, the legislatures of New York and
Pennsylvania, Rhode Island and New Jersey, have actually
enacted statutes allowing precisely that privilege."[185]
[Footnote 185: Med. Case, 1836.]
But the Supreme Court of Massachusetts held otherwise. Med was
declared free. Chief Justice Shaw covered himself with honor by his
decision. And soon after, (Aug. 29,) the Daily Advertiser, the "organ"
of the opinions of this family, said:--
"In some of the States there is ... legislative provision
for cases of this sort, [allowing masters to bring and hold
slaves therein,] and it would seem that _some such provision
is necessary in this State_, unless we would prohibit
citizens of the Slave States from travelling in this State
with their families, and unless we would permit such of them
as wish to emancipate their slaves, to throw them, at their
pleasure, upon the people of this State."
Gentlemen, Mr. Curtis in 1836 contended for all which Mr. Toombs
boasts he shall get--the right of the slaveholder to sit down at the
foot of Bunker Hill monument with his slaves! Nay, Mr. Curtis granted
more: it may be the duty of Massachusetts "to interfere actively," and
establish slavery in Louisiana, or in Kansas. It may be said, this was
only a lawyer pleading for his client. It was--a lawyer asking the
Supreme Court of Massachusetts to establish slavery in this
Commonwealth. Is it innocent in a lawyer to ask the court to do a
wicked thing, to urge the court to do it? Then is it equally innocent
to ask the Treasurer of a Railroad to forge stock, or an editor to
publish lies, or a counterfeiter to make and utter base coin, or an
assassin to murder men. Surely it is as innocent to urge men to kidnap
blacks in Africa as in Boston.
Gentlemen, That declaration--that the Statute supersedes natural
Justice, and that the only "Standard of Morality" by which the courts
are to be guided is "that which the law prescribes"--deserves your
careful consideration. "He that squares his conscience by the law is a
scoundrel"--say the proverbs of many nations. What do you think of a
man who knows no lawgiver but the General Court of Massachusetts, or
the American Congress: no Justice but the Statutes? If Mr. Curtis's
doctrine is correct, then Franklin, Hancock, Adams, Washington, were
only Rebels and Traitors! They refused that "Standard of Morality."
Nay, our Puritan Fathers were all "criminals;" the twelve Apostles
committed not only "misdemeanors" but sins; and Jesus of Nazareth was
only a malefactor, a wanton disturber of the public peace of the
world!
The slave child Med, poor, fatherless, and unprotected, comes before
the Supreme Court of Massachusetts, claiming her natural and
unalienable Right to Liberty and the Pursuit of Happiness,--if not
granted she is a slave for ever. In behalf of her wealthy "owner" Mr.
Curtis resists the girl's claim; tells the court she "is now a slave;"
there is "no practical difficulty" in allowing the master to keep her
in that condition, no "theoretical difficulty;" "slavery is not
immoral;" it may be the duty of Massachusetts not only to recognize
slavery at home, but also "even to interfere actively" to support
slavery abroad; the law is the only "Standard of Morality" for the
courts; that establishes slavery in Massachusetts! Gentlemen, what do
mankind say to such sophistry? Hearken to this Hebrew Bible: "Wo unto
them that decree unrighteous decrees, and that write grievousness
which they have prescribed, to turn aside the needy from judgment, and
to take away the Right from the poor of my people, that widows may be
their prey, and _that they may rob the fatherless_." Let the stern
Psalm of the Puritans still further answer from the manly bosom of the
Bible.
"Judges who rule the world by laws,
Will ye despise the righteous cause,
When the injured poor before you stands?
Dare ye condemn the righteous poor
And let rich sinners 'scape secure,
While Gold and Greatness bribe your hands?
"Have ye forgot, or never knew,
That God will judge the judges too?
High in the Heavens his Justice reigns;
Yet you invade the rights of God,
And send your bold decrees abroad,
To bind the Conscience in your chains.
"Break out their teeth, eternal God,
Those teeth of lions dy'd in blood;
And crush the serpents in the dust;
As empty chaff, when whirlwinds rise,
Before the sweeping tempest flies,
So let their hopes and names be lost.
"Thus shall the Justice of the Lord
Freedom and peace to men afford;
And all that hear shall join and say,
Sure there's a God that rules on high,
A God that hears his children cry,
And all their sufferings will repay."
2. After Mr. Webster had made his speech of March 7, 1850, pledging
himself and his State to the support of the fugitive slave bill, then
before Congress, "to the fullest extent," Thomas B. Curtis, with the
help of others, got up a letter to Mr. Webster, dated March 25, 1850,
signed, it is said, by 987 persons, who say: "We desire to express to
you our deep obligations for what this speech has done and is doing."
"You have pointed out to a whole people the path of duty, have
convinced the understanding and touched the conscience of the nation."
"We desire, therefore, to express to you our entire concurrence in the
sentiments of your speech."
3. A little later, Mr. Webster returned to Boston, and was
"rapturously received" at the Revere House, April 29, 1850, by a
"great multitude," when Benjamin R. Curtis made a public address, and
expressed his "abounding gratitude for the ability and fidelity" which
Mr. Webster had "brought to the defence of the Constitution and of the
Union," and commended him as "_eminently vigilant, wise, and faithful
to his country, without a shadow of turning_."
4. Presently, after the passage of the fugitive slave bill, at a
dinner party, at the house of a distinguished counsellor of Boston,
Charles P. Curtis declared that he hoped the first fugitive slave who
should come to Boston would be seized and sent back!
5. Charles P. Curtis and his step-brother Edward G. Loring, and George
T. Curtis, defended the fugitive slave bill by writing articles in the
_Boston Daily Advertiser_.
6. In November, 1850, the slave-hunters, thus invited and encouraged,
came to Boston, seeking to kidnap William and Ellen Craft: but they in
vain applied to Commissioner Benj. F. Hallett, and to Judges Woodbury
and Sprague, for a warrant to arrest their prey. Finally, they betook
themselves to Commissioner George T. Curtis, who at once agreed to
grant a warrant; but, according to his own statement, in a letter to
Mr. Webster, Nov. 23, 1850, as he anticipated resistance, and
considered it very important that the Marshal should have more support
than it was in his power as a Commissioner to afford, he procured a
meeting of the Commissioners, four in number, and with their aid
succeeded in persuading the Circuit Court, then in session, to issue
the warrant.
Gentlemen, as that letter of Mr. George T. Curtis contains some
matters which are of great importance, you will thank me for
refreshing your memory with such pieces of history.
"An application [for a warrant to arrest Mr. Craft] had
already been made to the judges [Messrs. Woodbury and
Sprague] privately ... they could not grant a warrant on
account of the pendency of an important Patent Cause then on
trial before a jury." "To this I replied, that ... the
ordinary business of the Court ought to give way for a
sufficient length of time, to enable the judges to receive
this application and to hear the case." "On a private
intimation to the presiding judge of our desire to confer
with him [the desire of the kidnapping commissioners, Mr.
B.F. Hallett, Mr. Edward G. Loring, Mr. C.L. Woodbury, and
Mr. G.T. Curtis] the jury were dismissed at _an earlier hour
than usual, ... and every person present except the
Marshal's deputies left the room, and the doors were
closed_." "The learned Judge said ... that he would attend
at half past eight the next morning, to grant the warrant."
"A process was placed in the hands of the Marshal ... in the
execution of which he might be called upon to _break open
dwelling-houses, and perhaps take life_, by quelling
resistance, actual or _threatened_." "I devoted at once a
good deal of time to the necessary investigations of the
subject." "There is a great deal of legislation needed to
make the general government independent of State control,"
says this "Expounder of the Constitution," "and independent
of the power of mobs, whenever and wherever its measures
chance to be unpopular." "The office of United States
Marshal is by no means organized and fortified by
legislation as it should be to encounter popular
disturbance."
7. The warrant having been issued for the seizure of Mr. Craft,
Marshal Devens applied to Benjamin R. Curtis for legal advice as to
the degree of force he might use in serving it, and whether it ought
to be regarded as a civil or a criminal process. George T. Curtis was
employed by his brother to search for authorities on these points.
They two, together, as appears from the letter of George T. Curtis to
Mr. Webster, induced Marshal Devens to ask a further question, which
gave Benjamin R. Curtis an opportunity to come out with an elaborate
opinion in favor of the constitutionality of the fugitive slave bill,
dated November 9, 1850. This was published in the newspapers. In order
to maintain the constitutionality of this act, Benjamin R. Curtis was
driven to assume, as all its defenders must, that the Commissioner, in
returning the fugitive, performs none of the duties of a Judge; that
the hearing before him is not "a case arising under the laws of the
United States;" that he acts not as a judicial, but merely as an
executive and "ministerial" officer--not deciding him to be a slave,
but merely giving him up, to enable that point to be tried
elsewhere.[186] But, spite of this opinion, public justice and the
Vigilance Committee forced the (Southern) slave-hunters to flee from
Boston, after which, Mr. and Mrs. Craft left America to find safety in
England, the evident rage and fierce threats of the disappointed
Boston slave-hunters making it unsafe for them to remain.
[Footnote 186: On this see Hildreth's Despotism, 262, 280.
Commissioner Loring considers that the fugitive slave bill
commissioners have "_judicial_ duties." Remonstrance to General Court,
2.]
8. After the failure of this attempt to arrest Mr. Craft, Thomas B.
Curtis got up a "Union Meeting" at Faneuil Hall, November 26,
1850.[187] The call was addressed to such as "regard with disfavor all
further popular agitation" of the subject of Slavery. Thomas B. Curtis
called the meeting to order: William W. Greenough, from the "Committee
of Arrangements," presented the resolutions, which you have already
heard.[188] It was said at the time that they were written, wholly or
in part, by Mr. Benjamin R. Curtis, who moved their adoption and made
a long and elaborate speech thereon.
[Footnote 187: See Mr. Curtis's letter in Daily Advertiser of February
7, 1855.]
[Footnote 188: See above, p. 148, 149.]
Gentlemen of the Jury, as I just now gave you some passages from Mr.
Hallett's speech on that occasion, allow me now to read you some
extracts from Mr. Curtis's address. The general aim of the speech was
to reconcile the People to kidnapping; the rhetorical means to this
end were an attempt to show that kidnapping was expedient; that it was
indispensable; that it had been long since agreed to; that the Slaves
were foreigners and had no right in _Massachusetts_. He said:--
"We have come here not to consider particular measures of
government but to assert that we have a government, not to
determine whether this or that law be wise or just, but to
declare that there is law, and its duties and power."
"Every sovereign State has and must have the right to judge
_what persons from abroad_ shall be admitted."
"Are not these persons [fugitive slaves] foreigners as to
us--and what right have they to come here at all, _against
the will of the legislative power of the State_.
[Massachusetts had no legislation forbidding them!] And if
their coming here or remaining here, is not consistent with
the safety of the State and the welfare of the citizens _may
we not_ prohibit their coming, or _send them back_ if they
come?" "_To deny this_ is to deny the right of
self-preservation to a State.... It ... _throws us back at
once into a condition below the most degraded savages who
have a semblance of government_." "You know that the great
duty of justice could not otherwise be performed, [that is
without the fugitive-from-labor clause in the Constitution];
that our peace at home and our safety from foreign
aggression could not otherwise be insured; and that only by
this means could we obtain 'the Blessings of Liberty' to the
people of Massachusetts and their posterity." "In no other
way could we become an example of, and security for, the
capacity of man, safely and peacefully and wisely to govern
himself under free and popular institutions."
So the fugitive slave bill is an argument against human depravity,
showing the capacity of man to govern himself "safely and peacefully
and wisely."
He adds, as early as 1643 the New England colonies found it necessary
"to insert an article substantially like this one," for the rendition
of fugitive servants, and in 1789 the Federal government demanded that
the Spaniards should surrender the fugitive slaves of Georgia.
Injustice, Gentlemen, has never lacked a precedent since Cain killed
Abel. Mr. Curtis continues:--
"When I look abroad over 100,000 happy homes in
Massachusetts and see a people, such as the blessed sun has
rarely shone upon, so intelligent and educated, moral,
religious, progressive, and free to do every thing but
wrong--I fear to say that I should not be in the wrong to
put all this at risk, because our _passionate will_ impels
us to break a promise our wise and good fathers made, not to
allow a _class of foreigners_ to come here, or to _send them
back if they came_."
So the refusal to kidnap Ellen and William Craft came of the
"_passionate will_" of the people, and is likely to ruin the happy
homes of a moral and religious people!
"_With the rights of these persons_ I firmly believe
_Massachusetts has nothing to do_. It is enough for us that
they have no right to be _here_. Whatever natural rights
they have--and I admit these natural rights to their fullest
extent--this is not the _soil_ on which to vindicate them.
This is _our_ soil, sacred to _our_ peace, on which we
intend to perform _our_ promises, and work out for the
benefit of ourselves and our posterity and the world, the
destiny which our Creator has assigned to _us_."
Gentlemen of the Jury, it is written of that Creator that He is "no
Respecter of Persons;" and "hath made of one blood all nations of men
for to dwell on all the face of the earth." The "Our Creator" of Mr.
Curtis is also the Father of William and Ellen Craft; and that great
Soul who has ploughed his moral truths deep into the history of
mankind, represents the final Judge of us all as saying to such as
scorned his natural Law of Justice and Humanity, "INASMUCH AS YE DID
IT NOT TO ONE OF THE LEAST OF THESE YE DID IT NOT TO ME."
Massachusetts is "our soil," is it; "sacred to _our_ peace," which is
to be made sure of by stealing our brother men, and giving to
Commissioners George T. Curtis and Edward G. Loring ten dollars for
making a slave, and only five for setting free a man! Peace and the
fugitive slave bill! No, Gentlemen of the Jury, it is vain to cry
Peace, Peace--when there is no peace! Ay, there _is_ no peace to the
wicked; and though the counsel of the ungodly be carried, it is
carried headlong!
In that speech, Gentlemen, Mr. Curtis made a special attack upon me:--
"There has been made within these walls," said he, "the
declaration that an article of the Constitution [the
rendition clause] of the United States 'shall not be
executed, _law or no law_.' A gentleman offered a resolve
... that 'constitution or no constitution, law or no law, we
will not allow a fugitive slave to be taken from
Massachusetts.' The chairman of a public meeting [Hon.
Charles Francis Adams, on October 14th] declared here that
'the law will be resisted, and if the fugitive resists, and
if he slay the slave-hunter, or even the Marshal, and if he
therefor be brought before a Jury of Massachusetts men, that
Jury will not convict him.' And as if there should be
nothing wanting to exhibit the madness which has possessed
men's minds, _murder and perjury_ have been enacted into
virtues, and in this city preached from the sacred desk. I
must not be suspected of exaggerating in the least degree. I
read therefore the following passage from a sermon preached
and published in this city:--
"'Let me suppose a case which may happen here and before
long. A woman flies from South Carolina to Massachusetts to
escape from bondage. Mr. Greatheart aids her in her escape,
harbors and conceals her, and is brought to trial for it.
The punishment is a fine of one thousand dollars and
imprisonment for six months. I am drawn to serve as a juror
and pass upon this offence. I may refuse to serve and be
punished for that, leaving men with no scruples to take my
place, or I may take the juror's oath to give a verdict
according to the law and the testimony. The law is plain,
let us suppose, and the testimony conclusive. Greatheart
himself confesses that he did the deed alleged, saving one
ready to perish. The judge charges that if the jurors are
satisfied of that fact then they must return that he is
guilty. This is a nice matter. Here are two questions. The
one put to me in my official capacity as juror, is this:
"Did Greatheart aid the woman?" The other, put to me in my
natural character as man, is this: "Will you help punish
Greatheart with fine and imprisonment for helping a woman
obtain her unalienable rights?" If I have extinguished my
manhood by my juror's oath, then I shall do my official
business and find Greatheart guilty, and I shall seem to be
a true man; but if I value my manhood I shall answer after
my natural duty to love man and not hate him, to do him
justice, not injustice, to allow him the natural rights he
has not alienated, and shall say, "Not guilty." Then men
will call me forsworn and a liar, but I think human nature
will justify the verdict.'"
"I should like to ask," he continued, "the reverend gentleman in what
capacity he expects to be punished for his _perjury_?" Gentlemen of
the Jury, I rose and said, "Do you want an answer to your question,
sir?" He had charged me with preaching murder and perjury; had asked,
How I expected to be punished for my own "PERJURY?" When I offered to
answer his question he refused me the opportunity to reply! Thus,
Gentlemen, he charged me with recommending men to commit perjury! Did
he think I advised men to take an oath and break it? On the other side
of the page which he read there stood printed:--
"Suppose a man has sworn to keep the Constitution of the
United States, and the Constitution is found to be wrong in
certain particulars; then his oath is not morally binding,
for before his oath, by his very existence, he is morally
bound to keep the law of God as fast as he learns it. No
oath can absolve him from his natural allegiance to God. Yet
I see not how a man can knowingly, and with a good
Conscience, swear to keep what he deems it wrong to keep,
and will not keep, and does not intend to keep."
Gentlemen, when that speech came to be printed--there was no charge of
"perjury" at all, but a quite different sentence![189]
[Footnote 189: See the speech in Boston Courier of November 27th, with
the editorial comment, and in Daily Advertiser of 28th, _Thanksgiving
Day_. See also the Atlas of November 27th. The Sermon is in 2 Parker's
Speeches, 241.]
9. In February, 1851, George T. Curtis issued the warrant for the
seizure of Shadrach, who was "hauled" in to the court house before
that Commissioner; but "the Lord delivered him out of their hands,"
and he also escaped out of the United States of America.
10. After the escape or rescue of Shadrach, George T. Curtis
telegraphed the news to Mr. Webster, at Washington, declaring "it is
levying war;" thus constructing high treason out of the rescue of a
prisoner by unarmed men, from the hands of a sub-deputy officer of the
United States.
11. George T. Curtis also officiated as Commissioner in the kidnapping
of Thomas Sims, in April, 1851; and under the pretence of
"extradition," sent him to be scourged in the jail of Savannah, and
then to suffer eternal bondage. It was rumored at the time that
Charles P. Curtis and Benjamin R. Curtis, his law-partner and
son-in-law, were the secret legal advisers and chamber-counsel of the
Southern slave-hunters in this case. I know not how true the rumor
was, nor whether it was based on new observation of facts, or was
merely an inference from their general conduct and character.
12. When Mr. Sims was brought before Judge Woodbury, on _habeas
corpus_, Benjamin R. Curtis appeared as counsel for the Marshal, and
also assisted Judge Woodbury in strengthening his opinion against
Sims, by a written note transmitted by an officer of the Court to the
Judge, while he was engaged in delivering his opinion.
13. Gentlemen of the Jury, I have shown you how, in Britain, the
Government, seeking to oppress the people and to crush down freedom of
speech, put into judicial offices such men as were ready to go all
lengths in support of profitable wickedness. You do not forget the men
whom the Stuarts made judges: surely you remember Twysden, and Kelyng,
and Finch, and Saunders, and Scroggs. You will not forget Edmund
Thurlow and John Scott. Well, Gentlemen, in 1851, Judge Woodbury died,
and on the recommendation of Mr. Webster, Mr. Benjamin R. Curtis was
raised to the dignity he now holds. Of course, Gentlemen, the country
will judge of the cause and motive of the selection. No lawyer in New
England had laid down such southern "Principles" for foundation of
law; he outwent Mr. Sprague. None had rendered such service to the
Slave Power. In 1836, he had sought to restore slavery to
Massachusetts, and to accomplish that had denied the existence of any
Higher Law,--the written statute was the only standard of judicial
morals. In 1850, he had most zealously defended the fugitive slave
bill,--coming to the rescue of despotism when it seemed doubtful which
way the money of Boston would turn, and showing most exemplary
diligence in his attempts to kidnap William and Ellen Craft.
Gentlemen, if such services were left unpaid, surely "the Union would
be in danger!" But I must go on with my sad chronicle.
14. As Circuit Judge of the United States, Benjamin R. Curtis, as well
in the construction of juries, as in the construction of the law,
exerted all his abilities against the parties indicted for the rescue
of Shadrach, though Mr. Hale says his conduct was far better than
Judge Sprague's. He did this especially in the case of Elizur Wright,
who appeared without counsel, and thus afforded a better opportunity
to procure a conviction. But it was in vain--all escaped out of his
hands.
15. In 1851, George T. Curtis brought an action for libel against
Benjamin B. Mussey, bookseller, who had just published a volume of
speeches by the Hon. Horace Mann, one of which was against the
business of kidnapping in Boston, wherein George T. Curtis found, as
he alleged, matter libellous of himself. That suit remains yet
undisposed of; but in it he will doubtless recover the full value of
his reputation, on which kidnapping has affixed no stain.
16. In May, 1854, Edward G. Loring issued a warrant for the seizure of
Mr. Burns; decided the case before he heard it, having advised the
counsel not to oppose his rendition, for he would probably be sent
back; held him ironed in his "court," and finally delivered him over
to eternal bondage. But in that case, it is said, Mr. Loring, who has
no Curtis blood in his veins, did not wish to steal a man; and
proposed to throw up his commission rather than do such a deed; but he
consulted his step-brother, Charles P. Curtis, who persuaded him it
would be dishonorable to decline the office of kidnapping imposed upon
him as a United States Commissioner by the fugitive slave bill.
Benjamin R. Curtis, it is said, I know not how truly--himself can
answer, aided Mr. Loring in forming the "opinion" by which he
attempted to justify the "extradition" of Mr. Burns; that is to say,
the giving him up as a slave without any trial of his right to
liberty, merely on a presumptive case established by his claimant.
17. After Commissioner Loring had seized Mr. Burns, Mr. George T.
Curtis, by a communication published in the newspapers, informed the
public that he still continued the business of man-hunting at the old
stand, where all orders for kidnapping would be promptly attended to.
For, he says, there was a statement "that I had declined, or was
unwilling or afraid to act. I did not choose that any one whatever
should have an excuse for believing that Judge Loring was willing to
sit in a case that I had declined." "I thought proper to place myself
as it were by his side." "But I never took a fee [for kidnapping], and
I never shall take one."[190] Did he remember the fate of the Hebrew
Judas, who "betrayed the Innocent Blood," and then cast down the
thirty pieces?
[Footnote 190: See Boston Journal of May 29, and Boston Courier of
June 7, 1854.]
Hitherto the kidnapping commissioners, though both members of the same
family, had pursued their game separately, each on his own account.
After this it appears these two are to hunt in couples: Commissioner
Loring and Commissioner Curtis "as it were by his side:"--
"Swift in pursuit, but matched in mouth like bells,
_Each under each_."
Gentlemen of the Jury, it is a very painful thing for me to deliver
this very sad chronicle of such wicked deeds. But do not judge these
men wholly by those acts. I am by no means stingy of commendation, and
would rather praise than blame. The two elder Messrs. Curtis have many
estimable and honorable qualities,--in private relations it is
said--and I believe it--they are uncommonly tender and delicate and
refined in the elegant courtesies of common life. I know that they
have often been open-handed and generous in many a charity. In the
ordinary intercourse of society, where no great moral principle is
concerned, they appear as decorous and worthy men. Hon. Benj. R.
Curtis,--he will allow me to mention his good qualities before his
face,--though apparently destitute of any high moral instincts, is yet
a man of superior powers of understanding, and uncommon industry; as a
lawyer he was above many of the petty tricks so common in his
profession. Strange as it may seem, I have twice seen Mr. George T.
Curtis's name among others who contributed to purchase a slave; Mr.
Loring's good qualities I have often mentioned, and always with
delight.
But this family has had its hand in all the kidnapping which has
recently brought such misery to the colored people and their friends;
such ineffaceable disgrace upon Boston, and such peril to the natural
Rights of man. These men have laid down and advocated the principles
of despotism; they have recommended, enforced, and practised
kidnapping in Boston, and under circumstances most terribly atrocious.
Without their efforts we should have had no man-stealing here. They
cunningly, but perhaps unconsciously, represented the low Selfishness
of the Money Power at the North, and the Slave Power at the South, and
persuaded the controlling men of Boston to steal Mr. Sims and Mr.
Burns. In 1836 they sought to enslave a poor little orphan girl, and
restore bondage to Massachusetts; in 1851 they succeeded in
enthralling a man. Now, Gentlemen, they are seeking to sew up the
mouth of New England; there is a sad consistency in their public
behavior.
Gentlemen, they are not ashamed of this conduct; when "A Citizen of
Boston," last January, related in the New York Tribune some of the
facts I have just set forth, "One of the name" published his card in
that paper and thanked the "Citizen" for collecting abundant evidence
that the "Curtis Family" "have worked hard to keep the _law_ superior
to fanaticism, disloyalty, and the _mob_," and declared that "they
feel encouraged to continue in the same course and _their children
after them_."[191] Mr. Thomas B. Curtis considers some of the acts I
have just mentioned "among the most meritorious acts" of his
life.[192] Mr. Loring, in his "Remonstrance," justifies Kidnapping!
[Footnote 191: New York Tribune, January 15, 1855.]
[Footnote 192: Daily Advertiser, February 7, 1855.]
They may, indeed, speak well of the bridge which carries them safe
over. Three of the family are fugitive slave bill commissioners; one
of them intellectually the ablest, perhaps morally the blindest, who
so charged me with "Perjury," is the Honorable Judge who is to try me
for a "Misdemeanor." Of course he is perfectly impartial, and has no
animosity which seeks revenge,--the history of courts forbids the
supposition!
Such, Gentlemen, are the antecedents of the Hon. Judge Curtis, such
his surroundings. You will presently see what effect they have had in
procuring this indictment. It a sad tale that I have presented. He
told it, not I; he did the deeds, and they have now found words.
* * * * *
Gentlemen of the Jury, I shall next speak of Judge Curtis's charge to
the grand-jury, delivered in Boston, June 7, 1854--only five days
after his kinsman had sent Mr. Burns into Slavery. Here is that part
of the charge which relates to our case.
"There is another criminal law of the United States to which
I must call your attention, and give you in charge. It was
enacted on the 13th of April, 1790, and is in the following
words:--
"'If any person shall knowingly or wilfully obstruct,
resist, or oppose any officer of the United States, in
serving, or attempting to serve, or execute any mesne
process, or warrant, or any rule or order of any of the
courts of the United States, or any other legal writ or
process whatever, or shall assault, beat, or wound any
officer, or other person duly authorized, in serving or
executing any writ, rule, order, process, or warrant,
aforesaid, such person shall, on conviction, be imprisoned
not exceeding twelve months, and fined not exceeding three
hundred dollars.'
"You will observe, Gentlemen, that this law makes no
provision for a case where an officer, or other person duly
authorized, is killed by those unlawfully resisting him.
That is a case of murder, and is left to be tried and
punished under the laws of the State, within whose
jurisdiction the offence is committed. Over that offence
against the laws of the State of Massachusetts we have here
no jurisdiction. It is to be presumed that the duly
constituted authorities of the State will, in any such case,
do their duty; and if the crime of murder has been
committed, will prosecute and punish all who are guilty.
"Our duty is limited to administering the laws of the United
States; and by one of those laws which I have read to you,
to obstruct, resist, or oppose, or beat, or wound any
officer of the United States, or other person duly
authorized, in serving or executing any legal process
whatsoever, is an offence against the laws of the United
States, and is one of the subjects concerning which you are
bound to inquire.
"It is not material that the same act is an offence both
against the laws of the United States and of a particular
State. Under our system of government the United States and
the several States are distinct sovereignties, each having
its own system of criminal law, which it administers in its
own tribunals; and the criminal laws of a State can in no
way affect those of the United States. The offence,
therefore, of obstructing legal process of the United States
is to be inquired of and treated by you as a misdemeanor,
under the Act of Congress which I have quoted, without any
regard to the criminal laws of the State, or the nature of
the crime under these laws.
"This Act of Congress is carefully worded, and its meaning
is plain. Nevertheless, there are some terms in it, and some
rules of law connected with it, which should be explained
for your guidance. And first, as to the process, the
execution of which is not to be obstructed.
"The language of the Act is very broad. It embraces every
legal process whatsoever, whether issued by a court in
session, or by a judge, or magistrate, or commissioner
acting in the due administration of any law of the United
States. You will probably experience no difficulty in
understanding and applying this part of the law.
"As to what constitutes an obstruction--it was many years
ago decided, by Justice Washington, that to support an
indictment under this law, it was not necessary to prove the
accused used or even threatened active violence. Any
obstruction to the free action of the officer, or his lawful
assistants, wilfully placed in his or their way, for the
purpose of thus obstructing him or them, is sufficient. And
it is clear that if a multitude of persons should assemble,
even in a public highway, with the design to stand together,
and thus prevent the officer from passing freely along the
way, in the execution of his precept, and the officer should
thus be hindered or obstructed, this would of itself, and
without any active violence, be such an obstruction as is
contemplated by this law. If to this be added use of any
active violence, then the officer is not only obstructed,
but he is resisted and opposed, and of course the offence is
complete, for either of them is sufficient to constitute it.
"If you should be satisfied that an offence against this law
has been perpetrated, you will then inquire by whom; and
this renders it necessary for me to instruct you concerning
the kind and amount of participation which brings
individuals within the compass of this law.
"And first, all who are present and actually obstruct,
resist, or oppose, are of course guilty. So are all who are
present leagued in the common design, and so situated as to
be able, in case of need, to afford assistance to those
actually engaged, though they do not actually obstruct,
resist, or oppose. If they are present for the purpose of
affording assistance in obstructing, resisting, or opposing
the officers, and are so situated as to be able in any event
which may occur, actually to aid in the common design,
though no overt act is done by them, they are still guilty
under this law. The offence defined by this act is a
misdemeanor; and it is rule of law that whatever
participation, in case of felony, would render a person
guilty, either as a principal in the second degree, or as an
accessory before the fact, does, in a case of misdemeanor,
render him guilty as a principal; in misdemeanors all are
principals. And, therefore, in pursuance of the same rule,
not only those who are present, but those who, though absent
when the offence was committed, did procure, counsel,
command, or abet others to commit the offence, are
indictable as principal.
"Such is the law, and it would seem that no just mind could
doubt its propriety. If persons having influence over others
use that influence to induce the commission of crime, while
they themselves remain at a safe distance, that must be
deemed a very imperfect system of law which allows them to
escape with impunity. Such is not our law. It treats such
advice as criminal, and subjects the giver of it to
punishment according to the nature of the offence to which
his pernicious counsel has led. If it be a case of felony,
he is by the common law an accessory before the fact, and by
the laws of the United States and of this State, is
punishable to the same extent as the principal felon. If it
be a case of misdemeanor, the adviser is himself a principal
offender, and is to be indicted and punished as if he
himself had done the criminal act. It may be important for
you to know what, in point of law, amounts to such an
advising or counselling another as will be sufficient to
constitute this legal element in the offence. It is laid
down by high authority, that though a mere tacit
acquiescence, or words, which amount to a bare permission,
will not be sufficient, yet such a procurement may be,
either by direct means, as by hire, counsel, or command, or
indirect, by evincing an express liking, approbation, or
assent to another's criminal design. From the nature of the
case, the law can prescribe only general rules on this
subject. My instruction to you is, that language addressed
to persons who immediately afterwards commit an offence,
actually intended by the speaker to incite those addressed
to commit it, and adapted thus to incite them, is such a
counselling or advising to the crime as the law
contemplates, and the person so inciting others is liable to
be indicted as a principal.
"In the case of the _Commonwealth_ v. _Bowen_ (13 Mass. R.
359), which was an indictment for counselling another to
commit suicide, tried in 1816, Chief Justice Parker
instructing the jury, and speaking for the Supreme Court of
Massachusetts, said:--
"'The government is not bound to prove that Jewett would not
have hung himself, had Bowen's counsel never reached his
ear. The very act of advising to the commission of a crime
is of itself unlawful. The presumption of law is that advice
has the influence and effect intended by the adviser, unless
it is shown to have been otherwise; as that the counsel was
received with scoff, or was manifestly rejected and
ridiculed at the time it was given. It was said in the
argument that Jewett's abandoned and depraved character
furnishes ground to believe that he would have committed the
act without such advice from Bowen. Without doubt he was a
hardened and depraved wretch; but it is in man's nature to
revolt at self-destruction. When a person is predetermined
upon the commission of this crime, the seasonable
admonitions of a discreet and respected friend would
probably tend to overthrow his determination. On the other
hand, the counsel of an unprincipled wretch, stating the
heroism and courage the self-murderer displays, might
induce, encourage, and fix the intention, and ultimately
procure the perpetration of the dreadful deed; and if other
men would be influenced by such advice, the presumption is
that Jewett was so influenced. He might have been influenced
by many powerful motives to destroy himself. Still the
inducements might have been insufficient to procure the
actual commission of the act, and one word of additional
advice might have turned the scale.'
"When applied--as this ruling seems to have been here
applied--to a case in which the advice was nearly connected,
in point of time, with the criminal act, it is, in my
opinion, correct. If the advice was intended by the giver to
stir or incite to a crime--if it was of such a nature as to
be adapted to have this effect, and the persons incited
immediately afterwards committed that crime--it is a just
presumption that they were influenced by the advice or
incitement to commit it. The circumstances, or direct proof,
may or may not be sufficient to control this presumption;
and whether they are so, can duly be determined in each
case, upon all its evidence.
"One other rule of law on this subject is necessary to be
borne in mind--the substantive offence to which the advice
or incitement applied must have been committed; and it is
for that alone the adviser or procurer is legally
accountable. Thus if one should counsel another to rescue
one prisoner, and he should rescue another, unless by
mistake; or if the incitement was to rescue a prisoner, and
he commit a larceny, the inciter is not responsible. But it
need not appear _that the precise time, or place, or means
advised_, were used. Thus if one incite A. to murder B., but
advise him to wait until B. shall be at a certain place at
noon, and A. murders B. at a different place in the morning,
the adviser is guilty. So if the incitement be to poison,
and the murderer shoots, or stabs. So if the counsel be to
beat another, and he is beaten to death, the adviser is a
murderer; for having incited another to commit an unlawful
act, he is responsible for all that ensues upon its
execution.
"These illustrations are drawn from cases of felonies,
because they are the most common in the books and the most
striking in themselves; but the principles on which they
depend are equally applicable to cases of misdemeanor. In
all such cases the real question is, whether the accused did
procure, counsel, command, or abet the substantive offence
committed. If he did, it is of no importance that his advice
or directions were departed from in respect to the time, or
place, or precise mode or means of committing it.
"Gentlemen: The events which have recently occurred in this
city, have rendered it my duty to call your attention to
these rules of law, and to direct you to inquire whether in
point of fact the offence of obstructing process of the
United States has been committed; if it has, you will
present for trial all such persons as have so participated
therein as to be guilty of that offence. And you will allow
me to say to you that if you or I were to begin to make
discriminations between one law and another, and say this we
will enforce and that we will not enforce, we should not
only violate our oaths, but so far as in us lies, we should
destroy the liberties of our country, which rest for their
basis upon the great principle that our country is governed
by laws, constitutionally enacted, and not by men.
"In one part of our country the extradition of fugitives
from labor is odious; in another, if we may judge from some
transactions, the law concerning the extradition of
fugitives from justice has been deemed not binding; in
another still, the tariff laws of the United States were
considered oppressive, and not fit to be enforced.
"Who can fail to see that the government would cease to be a
government if it were to yield obedience to those local
opinions? While it stands, all its laws must be faithfully
executed, or it becomes the mere tool of the strongest
faction of the place and the hour. If forcible resistance to
one law be permitted practically to repeal it, the power of
the mob would inevitably become one of the constituted
authorities of the State, to be used against any law or any
man obnoxious to the interests and passions of the worst or
most excited part of the community; and the peaceful and the
weak would be at the mercy of the violent.
"It is the imperative duty of all of us concerned in the
administration of the laws to see to it that they are
firmly, impartially, and certainly applied to every offence,
whether a particular law be by us individually approved or
disapproved. And it becomes all to remember, that forcible
and concerted resistance to any law is civil war, which can
make no progress but through bloodshed, and can have no
termination but the destruction of the government of our
country, or the ruin of those engaged in such resistance. It
is not my province to comment on events which have recently
happened. They are matters of fact which, so far as they are
connected with the criminal laws of the United States, are
for your consideration. I feel no doubt that, as good
citizens and lovers of our country, and as conscientious
men, you will well and truly observe and keep the oath you
have taken, diligently to inquire and true presentment make
of all crimes and offences against the laws of the United
States given you in charge."[193]
[Footnote 193: Law Reporter, August, 1854.]
Now gentlemen look at some particulars of this charge.
1. "If a multitude of persons shall assemble _even in a public
highway_, with the design to _stand together, and thus prevent the
officer from passing freely along that way_, in the execution of his
precept, and the officer should thus be _hindered and obstructed_,
this would, of itself, and without any active violence, be such an
obstruction as is contemplated by this law." Of course, all persons
thus assembled in the public highway were guilty of that offence, and
liable to be punished with imprisonment for twelve months and a fine
of three hundred dollars: "_All who are present_, and obstruct,
resist, or oppose, _are of course guilty_." Their "design" is to be
inferred from "the fact" that the officer was obstructed.
That is not all, this offence in technical language the Judge calls a
"misdemeanor," and in "misdemeanors," he says, "all are principals."
So, accordingly, not only are all guilty who _actually obstruct_ but
likewise all who are "leagued in the common design, and _so situated
as to be able_ in case of need _to afford assistance to those actually
engaged_, though they do not actually obstruct, resist, or oppose."
These are obstructors by construction No. 1; they must have been
several thousands in number.
But even that is not all; the judicial logic of deduction goes further
still, and he adds, "Not only those who are present, but _those who_
though _absent_ when the offence was committed, _did procure, counsel,
command, or abet_ others to commit the offence are indictable as
principals." These are obstructors by construction No. 2.
2. Next he determines what it is which "amounts to _such advising or
counselling_ another as will be sufficient to constitute this legal
element in the offence." First he constructs the physical act which is
the misdemeanor, namely, standing in the high road and thereby
hindering a kidnapper from "passing freely along that way; or being so
situated as to be able to afford assistance to others thus standing;
or advising another thus to stand, or be situated:" next he constructs
the _advice_, the metaphysical act, which is equally a "misdemeanor."
This is the square root of construction No. 2. Look at this absurd
quantity.
"_Such a procurement may be_, either by direct means, as by hire,
counsel, or command, or indirect, _by evincing an express liking,
approbation, or assent_." Thus the mere casual expression, "I wish
Burns would escape, or I wish somebody would let him out," is a
"Misdemeanor;" it is "evincing an express liking." Nodding to any
other man's similar wish is a misdemeanor. It is "approbation." Even
smiling at the nod is a crime--it is "assent." Such is the threefold
shadow of this constructive shade. But even that is not all. A man is
held responsible for what he evinced no _express_ or implied _liking_
for: "_it need not appear that the precise time, or place, or means
advised, were used_." Accordingly, he that "evinces an express
liking," "_is responsible for all that ensues upon its execution_." He
evinces his assent to the End and is legally responsible for any Means
which any hearer thereof shall, at any time, or in any place, make use
of to attain that end!
Gentlemen of the Jury, this charge is a _quo warranto_ against all
Freedom of Speech. But suppose it were good law, and suppose the
Grand-Jury obedient to it, see how it would apply.
All who evinced an express liking, approbation, or assent to the
rescue of Mr. Burns are guilty of a misdemeanor; if they "evinced an
express liking" that he should be rescued by a miracle wrought by
Almighty God,--and some did express "approbation" of that
"means,"--they are indictable, guilty of a "misdemeanor;" "it need not
appear that the precise time, or place, or means advised, were used!"
If any colored woman during the wicked week--which was ten days
long--prayed that God would deliver Anthony, as it is said his angel
delivered Peter, or said "Amen" to such a prayer, she was "guilty of a
misdemeanor;" to be indicted as a "principal."
So every man in Boston who, on that bad Friday, stood in the streets
of Boston between Court Square and T Wharf, was "guilty of a
misdemeanor," liable to a fine of three hundred dollars, and to
jailing for twelve months. All who at Faneuil Hall stirred up the
minds of the people in opposition to the fugitive slave bill; all who
shouted, who clapped their hands at the words or the countenance of
their favorites, or who expressed "approbation" by a whisper of
"assent," are "guilty of a misdemeanor." The very women who stood for
four days at the street corners, and hissed the infamous Slave-hunters
and their coadjutors; they, too, ought to be punished by fine of three
hundred dollars and imprisonment for a year! Well, there were fifteen
thousand persons "assembled" "in the highway" of the city of Boston
that day opposed to kidnapping; half the newspapers in the country
towns of Massachusetts "evinced an express liking" for freedom, and
opposed the kidnapping; they are all "guilty of a misdemeanor;" they
are "Principals." Nay, the ministers all over the State, who preached
that kidnapping was a sin; those who read brave words out of the Old
Testament or the New; those who prayed that the victim might escape;
they, likewise, were "guilty of a misdemeanor," liable to be fined
three hundred dollars and jailed for twelve months.[194]
[Footnote 194: 2 Parker's Additional, 280.]
But where did Judge Curtis find his right to levy Ship-money, Tonnage,
and Poundage on the tongues of men; where did he find his "law?"
Surely not in the statute. When the bill was pending in 1790, suppose
his construction of the statute had been declared to Congress--who
would have voted for a law so monstrous? The statute lay in the
Law-book for nearly seventy years, and nobody ever applied it to a
case like this.
Gentlemen, I have shown you already how British judges in the time of
the Jameses and Charleses perverted the law to the basest of purposes.
I mentioned, amongst others, the work of Twysden and Kelyng and Jones.
This is a case like those. Just now I spoke of the action of Chief
Justice Parker who said it was not for the jury to judge whether a law
_were harsh or not_; I showed how he charged the jury in the case of
Bowen, and how the jury returned a verdict of "not guilty," thus
setting his inhuman charge at nought.[195] But Judge Curtis, for his
law, relies upon Judge Parker's charge. It is not a Statute made by
the legislature that Judge Curtis relies on for his law; it is not a
Custom of the Common law; it is not an Opinion of the Court solemnly
pronounced after mature deliberation; it is only the charge of a
single judge to a jury in a special case, and one which the jury
disregarded even then!
[Footnote 195: See above, p. 112.]
But where did Judge Parker, an estimable man, find his law? Mr. Perez
Morton, the Attorney-General, found it in Kelyng's Reports. In the
case of Bowen only one authority is referred to for that odious
principle on which the judge sought to hang him; that authority is
taken from "9 Charles I.;" from the year 1634--the worst age of the
Stuart tyranny! But even that authority was not a Statute law, not a
Custom of the People, not the Opinion of a Court solemnly pronounced.
It was the charge of a single judge--a charge to a jury, made by an
inferior judge, of an inferior court, in a barbarous age, under a
despotic king! Hearken to this,--from the volume of Kelyng's
Reports.[196] "_Memorandum_, That my Brother Twysden shewed me a
Report which he had of the Charge given by Justice Jones to the
grand-jury at the King's Bench Barr, in Michaelmas Term, 9 Carl. I."
Gentlemen of the Jury, that charge no more settled the law even in
1634, than Judge Sprague's charge telling the _grand-jury to "obey
both"_ the law of God and the law of man which is exactly opposite
thereto, settled the law of the United States and the morality of the
People. But yet that is all the law the government had to hang Bowen
with. The jury made nothing of it.[197]
[Footnote 196: Page 52. See above, p. 112.]
[Footnote 197: Jones's "opinion" relates to a case of _murder_ by the
advice of an absent person, not at all to _suicide by the advice of
another_, so it could not apply to the case of Bowen.]
But Kelyng's Reports are of no value as authority. Here is what Lord
Campbell, now Chief Justice of the King's Bench, says of them and
their author. I read it to you long ago. "I ought to mention that
among his other vanities he had the ambition to be an author; and he
compiled a folio volume of decisions in criminal laws, _which are of
no value whatever except to make us laugh at some of the silly
egotisms with which they abound_."[198] Twysden, who showed him the
Report of the charge, is of little value, and of no authority. I
mentioned his character before.
[Footnote 198: 2 Campbell's Justices, 406.]
Justice Jones, who made the charge, would hardly be an authority in
the English courts in a nice question of construction. He allowed the
king to levy ship-money, as I have shown before,[199] and dared not
perform the duties of his office and so protect the Liberty of the
Subject when the king smote thereat. He was brought before the House
of Commons to answer for his conduct, in 1628. "His memory," says
Echard, "suffers upon the account of his open judgment for the
ship-money, the unhappy consequence of which he did not live to
see."[200]
[Footnote 199: Above, p. 23.]
[Footnote 200: Parl. Hist. 290; 3 St. Tr. 844, 1181, 162; 2 Echard,
186.]
Judge Kelyng, the great authority in this case, was notorious for
violating alike Justice and the law. Out of a riot committed by some
apprentices he constructed the crime of High Treason, and sentenced
thirteen men to death. He fined and imprisoned jurors because they
refused to return the wicked, illegal verdict he demanded. With
language too obscene to utter in this century, he mocked at the Great
Charter of English Liberty. But at last the scandal was too great even
for the reign of Charles II., and in 1667 the "Grand Committee of
Justice" in the House of Commons, after examining witnesses and
hearing him on his own behalf, reported:--
1. "That the proceedings of the Lord Chief Justice in the
cases referred to us are innovations in the trial of men for
their lives and liberties, and that he hath used an
arbitrary and illegal power which is of dangerous
consequence to the lives and liberties of the people of
England."
2. "That in place of Judicature, the Lord Chief Justice hath
undervalued, vilified, and condemned MAGNA CHARTA, the great
preserver of our lives, freedom, and property."
3. "That the Lord Chief Justice be brought to trial, in
order to condign punishment, in such manner as the House
shall judge most fit and requisite."[201]
[Footnote 201: See above, p. 23, 39, 113, 125; 1 Campbell, _Ibid._
406; 6 St. Tr. 76, 229, 171, 532, 769, 879, 992; Pepys' Diary, 17
Oct., 1667; Commons Journal, 16th Oct., 1667.]
Some of the lawyers whom he had browbeaten, generously interceded for
him. He made an abject submission "with great humility and reverence,"
and the House desisted from prosecution. "He was abundantly tame for
the rest of his days," says Lord Campbell, "fell into utter contempt,"
"and _died to the great relief of all who had any regard for the due
administration of justice_."
Gentlemen, I am no lawyer, and may easily be mistaken in this matter,
but as I studied Judge Curtis's charge and cast about for the sources
of its doctrines and phraseology, I thought I traced them all back to
Kelyng's opinions in that famous case, where he made treason out of a
common riot among apprentices; and to Judge Chase's "opinions" and
"rulings" in the trial of Mr. Fries,--opinions and rulings which
shocked the public at the time, and brought legislative judgment on
his head. Let any one compare the documents, I think he will find the
whole of Curtis in those two impeached Judges, in Kelyng and in
Chase.[202]
[Footnote 202: 1 Wharton, 636; Kelyng, 1-24, 70-77; 6 St. Tr. 879.]
Here then is the law,--derived from the memorandum of the charge to a
grand-jury made in 1634, by a judge so corrupt that he did not
hesitate to violate Magna Charta itself; not published till more than
seventy years after the charge was given; cited as law by a single
authority, and that authority impeached for unrighteously and
corruptly violating the laws he was set and sworn to defend, impeached
even in that age--of Charles II.;--that is the law! Once before an
attempt was made to apply it in Massachusetts, and inflict capital
punishment on a man for advising a condemned murderer to anticipate
the hangman and die by his own hand in private--and the jury refused.
But to such shifts is this Honorable Court reduced! Gentlemen of the
Jury, the fugitive slave bill cannot be executed in Massachusetts, not
in America, without reviving the worst despotism of the worst of the
Stuarts; not without bringing Twysden and Jones and Kelyng on the
Bench; no, not without Saunders and Finch, and Jeffreys and Scroggs!
Gentlemen, such was Judge Curtis's charge. I have been told it was
what might have been expected from the general character and previous
conduct of the man; but I confess it did surprise me: it was foolish
as it was wicked and tyrannical. But it all came to nought.
For, alas! there was a grand-jury, and the Salmonean thunder of the
fugitive slave bill judge fell harmless--quenched, conquered,
disgraced, and brutal,--to the ground. Poor fugitive slave bill Court!
It can only gnash its teeth against freedom of speech in Faneuil Hall;
only bark and yelp against the unalienable rights of man, and howl
against the Higher Law of God! it cannot bite! Poor, imbecile,
malignant Court! What a pity that the fugitive slave bill judge was
not himself the grand-jury, to order the indictment! what a shame that
the attorney was not a petty jury to convict! Then New England, like
Old, might have had her "bloody assizes," and Boston streets might
have streamed with the heart's gore of noble men and women; and human
heads might have decked the pinnacles all round the town; and Judge
Curtis and Attorney Hallett might have had their place with Judge
Jeffreys and John Boilman of old. What a pity that we have a
grand-jury and a traverse jury to stand between the malignant arm of
the Slave-hunter and the heart of you and me![203]
[Footnote 203: 2 Parker's Additional, p. 281.]
The grand-jury found no bill and were discharged. In a Fourth of July
Sermon "Of the Dangers which Threaten the Rights of Man in America," I
said:--
"Perhaps the Court will try again, and find a more pliant
Grand-Jury, easier to intimidate. Let me suggest to the
Court that the next time it should pack its Jury from the
Marshal's 'Guard.' Then there will be Unity of Idea; of
action too,--the Court a figure of equilibrium."
The audacious Grand-Jury was discharged. A new one was summoned; this
time it was constructed out of the right material. Before that,
Gentlemen, we had had the Judge or his kinsmen writing for the
fugitive slave bill in the newspapers; getting up public meetings in
behalf of man-stealing in Boston; writing letters in support of the
same; procuring opinions in favor of the constitutionality of the
fugitive slave bill; nay, kidnapping men and sending them into eternal
bondage, and in the newspapers defending the act; but we had none of
them in the Jury box. On the new Grand-Jury appeared Mr. William W.
Greenough, the brother-in-law of Hon. Judge Curtis--each married a
daughter of Mr. Charles P. Curtis. Mr. Greenough "was very active in
his endeavors to procure an indictment" against me; and a bill was
found.
How came the Brother-in-law of the Judge on the Grand-Jury summoned to
punish men who spoke against kidnapping? Gentlemen of the Jury, I do
not know. Of course it was done honestly; nobody suspects the Mayor of
Boston of double-dealing, of intrigue, or of any indirection! Of
course there was no improper influence used by the Marshal, or Mr.
Curtis, or Mr. Hallett, who had all so much at stake; of course Mr.
Greenough "did not wish to be on the Jury;" of course Judge Curtis
"was very sorry he was there," and of course "all the family was
sorry!" Of course "he went and asked Judge Sprague to excuse him, and
the Judge wouldn't let him off!" Well, Gentlemen, I suppose it was a
"miracle;" such a miracle as delivered the old or the new Shadrach; a
"singular coincidence;" a "very remarkable fact." You will agree with
me, Gentlemen, that it was a _very remarkable_ FACT. In all the
judicial tyranny I have related, we have not found a case before in
which the judge had his brother on the Grand-Jury. Even Kelyng affords
no precedent for that.
Last summer I met Mr. Greenough in a Bookstore and saluted him as
usual; he made no return to my salutation, but doubled up his face and
went out of the shop! That was the impartial Grand-Juror, who took the
oath to "present no man for envy, hatred, or malice."
"After the impanelling of the new Grand-Jury,"--I am reading from a
newspaper,[204] "Judge Curtis charged them in reference to their
duties at considerable length. In regard to the Burns case he read the
law of 1790 respecting opposition to the United States Marshals and
their deputies while in discharge of their duty, enforcing the laws of
the United States, and referred for further information as to the law
upon the point to his charge delivered at a previous term of the
Court, and now in the possession _of the District Attorney_." Thus he
delegated the duty of expounding the law to a man who is not a
judicial officer of the United States.
[Footnote 204: Evening Traveller, Oct. 16.]
Gentlemen of the Jury, look at the facts. I am indicted by a
Grand-Jury summoned for that purpose after one Grand-Jury--which had
been drawn before the kidnapping of Mr. Burns--had refused to find a
bill; a member of the family which has been so distinguished for
kidnapping ever since 1832, the Brother-in-law of the Judge, is made
one of that Grand-Jury; he is so hostile and malignant as to refuse my
friendly salutation when offered as usual; and on the jury is "most
active of all in his efforts to procure an indictment," so that "but
for his efforts," as one of the Grand-Jury informed me, "no bill would
have been found that time;" and "it was obvious that an outside
influence affected him." Out of court Mr. Hallett, it is said,
jocosely offers to bet ten dollars that he "will get Mr. Parker
indicted." I am to be tried before two judges deeply committed to the
Slave Power, now fiercely invading our once free soil; they owe their
appointment to their hostility against Freedom. Twenty years ago, in
the Old Cradle of Liberty, Mr. Sprague could find for Washington no
epithet so endearing as "THAT SLAVEHOLDER;" he defended Slavery with
all his legal learning, all his personal might. Yes, when other
weapons failed him he extemporized a new gospel, and into the mouth of
Jesus of Nazareth,--who said, "Thou shalt love thy Neighbor as
thyself," and pointed out the man who had "fallen among thieves" as
neighbor to the Samaritan--he put this most unchristian precept,
"SLAVES, OBEY YOUR MASTERS!" Nay, only four years ago, in this very
Court, he charged the jury that if they thought there was a
contradiction between the Law of God and the Statutes of men they must
"obey both."
Gentlemen, the other judge, Mr. Curtis, began his career by asking the
Supreme Court of Massachusetts to restore Slavery to Lexington and
Bunker Hill; he demanded that our own Supreme Court should grant all
that wickedness which Toombs and Hangman Foote, and Atchison and
Stringfellow, and Grier and Kane have since sought to perpetuate! He
denied the existence of any Law of God to control the Court, there is
nothing but the Statutes of men; and declared "Slavery is not
immoral;" Massachusetts may interfere actively to establish it abroad
as well as at home. In Faneuil Hall, in a meeting which he and his
kinsmen had gathered and controlled, a meeting to determine upon
kidnapping the citizens of Boston, he charged me with perjury, asked a
question, and did not dare listen to my reply! Gentlemen, it is a very
proper Court to try me. A fugitive slave bill Court--with a fugitive
slave bill Attorney, a fugitive slave bill Grand-Jury, two fugitive
slave bill Judges--which scoffs at the natural law of the Infinite
God, is a very suitable tribunal to try a Minister of the Christian
religion for defending his own parishioners from being kidnapped,
defending them with a word in Faneuil Hall!
"No tyranny so secure,--none so intolerable,--none so dangerous,--none
so remediless, as that of Executive Courts." "This is a truth all
nations bear witness to--all history confirms." These were the words
of Josiah Quincy, Jr., in 1772.--Gentlemen, in 1855 you see how true
they are! "So sensible are all tyrants of the importance of such
courts--that to advance and establish their system of oppression,
_they never rest until they have completely corrupted or bought the
judges of the land_. I could easily show that the most deep laid and
daring attacks upon the rights of a people might, in some measure, be
defeated, or evaded by upright judicatories; bad laws with good judges
make little progress."[205]
[Footnote 205: Quincy's Quincy, 68.]
But Gentlemen,--when the fugitive slave bill is "_law_," when the
judges are selected for their love of Slavery and their hatred of
freedom--men who invent Scripture to justify bondage, or who as
Lawyers beseech the courts to establish Slavery in Massachusetts; who
declare it is not immoral, that it may be the duty of Massachusetts to
interfere actively and establish slavery abroad, nay, that there is no
morality but only legality, the statute the only standard of right
and wrong--what are you to expect? What you see in Philadelphia, New
York; aye, in Boston at this hour. I will add with Mr. Quincy, "Is it
possible this should not rouse us and drive us not to desperation but
to our duty! The blind may see; the callous must feel; the spirited
will act."[206]
[Footnote 206: Gazette, Feb. 10, 1772.]
It would be just as easy for the Judge to make out divers other crimes
from my words, as to construct a misdemeanor therefrom. To charge me
with "treason," he has only to vary a few words and phrases; to cite
Chase, and not Judge Parker, and to refer to other passages of
Kelyng's Reports. James II.'s judges declared it was treason in the
seven Bishops to offer their petition to the King. Mr. Webster said,
it is only the "clemency of the Government which indicted the Syracuse
rescuers for misdemeanors and not for a capital crime!" How easy for a
fugitive slave bill judge to hang men for a word against his brother
kidnapper--if there were no jury; if, like the New York sheriff in
1735, he could order "his own negro" to do it! Here is a remarkable
case of constructive crime, worthy of this Honorable Court. It is the
famous case of _Dux_ v. _Conrade et Boracio_. Honorable Judge Dogberry
thus delivered his charge to the Grand Inquest, "Masters, I charge you
accuse these men,"--one policeman testified that Conrade said "that
Don John, the prince's Brother, was a _villain_." Judge Dogberry
ruled, "This is flat perjury to call a prince's Brother, _villain_."
The next member of the Marshal's guard deposed that Boracio had said,
"That he had received a thousand ducats of Don John for accusing the
Lady Hero wrongfully." Chief Justice Dogberry decided, "Flat Burglary
as ever was committed." Sentence accordingly.[207]
[Footnote 207: 2 Singer's Shakspeare, 192.]
* * * * *
Gentlemen, the indictment is so roomy and vague, that before I came
into court, I did not know what special acts of mine would be brought
up against me--for to follow out the Judge's charge, all my life is a
series of constructive misdemeanors. Nay, I think my mother--the
violet has bloomed over that venerable and well-beloved head for more
than thirty summers now--I think my mother might be indicted for
constructive treason, only for bearing me, her youngest son.
Certainly, it was "obstructing an officer," and in "misdemeanors all
are principals." I have committed a great many misdemeanors; all my
teachings evince an express liking for Piety, for Justice, for
Liberty; all my life is obstructing, opposing, and resisting the
fugitive slave bill Court, its Commissioners, its Judges, its Marshals
and its Marshal's guard. Gentlemen of the jury, you are to judge me.
Look at some of my actions and some of my words.
In 1850, on the 25th of March, a fortnight after Mr. Webster made his
speech against Humanity, there was a meeting of the citizens of
Boston, at Faneuil Hall; Gentlemen, I helped procure the meeting.
First, I tried to induce the leading Whigs to assemble the people. No,
that could not be done; "the Bill would not pass, there was no
danger!" Then I tried the leading Free Soilers; "No, it was not quite
time, and we are not strong enough." At last the old abolitionists
came together. Mr. Phillips made a magnificent speech. Here are some
things which I also said.
"There were three fugitives at my house the other night.
Ellen Craft was one of them. You all know Ellen Craft is a
slave; she, with her husband, fled from Georgia to
Philadelphia, and is here before us now. She is not so dark
as Mr. Webster himself, if any of you think freedom is to be
dealt out in proportion to the whiteness of the skin. If
Mason's bill passes, I might have some miserable postmaster
from Texas or the District of Columbia, some purchased agent
of Messrs. Bruin & Hill, the great slave-dealers of the
Capital, have him here in Boston, take Ellen Craft before
the caitiff, and on his decision hurry her off to bondage as
cheerless, as hopeless, and as irremediable as the grave!
"Let me interest you in a scene which might happen. Suppose
a poor fugitive, wrongfully held as a slave--let it be Ellen
Craft--has escaped from Savannah in some northern ship. No
one knows of her presence on board; she has lain with the
cargo in the hold of the vessel. Harder things have
happened. Men have journeyed hundreds of miles bent double
in a box half the size of a coffin, journeying towards
freedom. Suppose the ship comes up to Long Wharf, at the
foot of State Street. Bulk is broken to remove the cargo;
the woman escapes, emaciated with hunger, feeble from long
confinement in a ship's hold, sick with the tossing of the
heedless sea, and still further etiolated and blanched with
the mingling emotions of hope and fear. She escapes to land.
But her pursuer, more remorseless than the sea, has been
here beforehand; laid his case before the official he has
brought with him, or purchased here, and claims his slave.
She runs for her life, fear adding wings. Imagine the
scene--the flight, the hot pursuit through State Street,
Merchants' Row--your magistrates in hot pursuit. To make the
irony of nature still more complete, let us suppose this
shall take place on some of the memorable days in the
history of America--on the 19th of April, when our fathers
first laid down their lives 'in the sacred cause of God and
their country;' on the 17th of June, the 22d of December, or
on any of the sacramental days in the long sad history of
our struggle for our own freedom! Suppose the weary fugitive
takes refuge in Faneuil Hall, and here, in the old Cradle of
Liberty, in the midst of its associations, under the eye of
Samuel Adams, the bloodhounds seize their prey! Imagine Mr.
Webster and Mr. Winthrop looking on, cheering the
slave-hunter, intercepting the fugitive fleeing for her
life. Would not that be a pretty spectacle?
"Propose to support that bill to the fullest extent, with
all its provisions! Ridiculous talk! Does Mr. Webster
suppose that such a law could be executed in Boston? that
the people of Massachusetts will ever return a single
fugitive slave, under such an act as that? Then he knows his
constituents very little, and proves that he needs
'Instruction.'
"Perpetuate Slavery, we cannot do it. Nothing will save it.
It is girt about by a ring of fire which daily grows
narrower, and sends terrible sparkles into the very centre
of the shameful thing. 'Joint resolutions' cannot save it;
annexations cannot save it--not if we reannex all the West
Indies; delinquent representatives cannot save it;
uninstructed senators, refusing instructions, cannot save
it, no, not with all their logic, all their eloquence, which
smites as an earthquake smites the sea. No, slavery cannot
be saved; by no compromise, no non-intervention, no Mason's
Bill in the Senate. It cannot be saved in this age of the
world until you nullify every ordinance of nature, until you
repeal the will of God, and dissolve the union He has made
between righteousness and the welfare of a people. Then,
when you displace God from the throne of the world, and
instead of His eternal justice, reënact the will of the
Devil, then you may keep Slavery; keep it for ever, keep it
in peace. Not till then.
"The question is, not if slavery is to cease, and soon to
cease, but shall it end as it ended in Massachusetts, in New
Hampshire, in Pennsylvania, in New York; or shall it end as
in St. Domingo? Follow the counsel of Mr. Webster--it will
end in fire and blood. God forgive us for our cowardice, if
we let it come to this, that three millions or thirty
millions of degraded human beings, degraded by us, must wade
through slaughter to their unalienable rights."[208]
[Footnote 208: 2 Occasional Speeches, 164, 165, and 172.]
Gentlemen, that speech was a "seditious libel" by construction!
On the 29th of May, I spoke at the New England Anti-Slavery
Convention, and said:--
"Let us not be deceived about the real question at issue. It
is not merely whether we shall return fugitive slaves
without trial by jury. We will not return them with trial by
jury! neither 'with alacrity,' nor with the 'solemnity of
judicial proceedings!' It is not merely whether slavery
shall be extended or not. By and by there will be a
political party with a wider basis than the free soil party,
who will declare that the nation itself must put an end to
slavery in the nation; and if the Constitution of the United
States will not allow it, there is another Constitution that
will. Then the title, Defender and expounder of the
Constitution of the United States, will give way to
this,--'Defender and expounder of the Constitution of the
Universe,' and we shall reaffirm the ordinance of nature,
and reënact the will of God. You may not live to see it, Mr.
President, nor I live to see it; but it is written on the
iron leaf that it must come; come, too, before long. Then
the speech of Mr. Webster, and the defence thereof by Mr.
Stuart, the letter of the retainers and the letters of the
retained, will be a curiosity; the conduct of the whigs and
democrats an amazement, and the peculiar institution a
proverb amongst all the nations of the earth. In the turmoil
of party politics, and of personal controversy, let us not
forget continually to move the previous question, whether
Freedom or Slavery is to prevail in America. There is no
attribute of God which is not on our side; because, in this
matter, we are on the side of God."[209]
[Footnote 209: Ibid., 207, 208.]
After the death of General Taylor on the 14th of July, I lifted up my
voice in a funeral sermon thus:--
"If he could speak to us from his present position, methinks
he would say: Countrymen and friends! You see how little it
availed you to agitate the land and put a little man in a
great place. It is not the hurrah of parties that will 'save
the Union,' it is not 'great men.' It is only Justice.
Remember that Atheism is not the first principle of a
Republic; remember there is a law of God, the higher law of
the universe, the Everlasting Right: I thought so once, and
now I know it. Remember that you are accountable to God for
all things; that you owe justice to all men, the black not
less than the white; that God will demand it of you, proud,
wicked nation, careful only of your gold, forgetful of God's
high law! Before long each of you shall also come up before
the Eternal. Then and there it will not avail you to have
compromised truth, justice, love, but to have kept them.
Righteousness only is the salvation of a State; that only of
a man."[210]
[Footnote 210: 2 Occasional Sermons, 239, 240.]
All that was before the bill passed, but how easy it would be for
Judge Jeffreys or Judge Curtis, Judge Sprague or Judge Scroggs, to
construct it into a "misdemeanor," "resisting an officer!"
After the fugitive slave bill passed, on the 22d of September, 1850,
not forty-eight hours after the Judge's friends had fired their
jubilant cannon at the prospect of kidnapping the men who wait upon
their tables, I preached a "Sermon of the Function and Place of
Conscience in relation to the Laws of Man, a sermon for the times." I
said this:--
"If a man falls into the water and is in danger of drowning,
it is the natural duty of the bystanders to aid in pulling
him out, even at the risk of wetting their garments. We
should think a man a coward who could swim, and would not
save a drowning girl for fear of spoiling his coat. He would
be indictable at common law. If a troop of wolves or tigers
were about to seize a man, and devour him, and you and I
could help him, it would be our duty to do so, even to peril
our own limbs and life for that purpose. If a man undertakes
to murder or steal a man, it is the duty of the bystanders
to help their brother, who is in peril, against wrong from
the two-legged man, as much as against the four-legged
beast. But suppose the invader who seizes the man is an
officer of the United States, has a commission in his
pocket, a warrant for his deed in his hand, and seizes as a
slave a man who has done nothing to alienate his natural
rights--does that give him any more natural right to enslave
a man than he had before? Can any piece of parchment make
right wrong, and wrong right?
"The fugitive has been a slave before: does the wrong you
committed yesterday, give you a natural right to commit
wrong afresh and continually? Because you enslaved this
man's father, have you a natural right to enslave his child?
The same right you would have to murder a man because you
butchered his father first. The right to murder is as much
transmissible by inheritance as the right to enslave! It is
plain to me that it is the natural duty of citizens to
rescue every fugitive slave from the hands of the marshal
who essays to return him to bondage; to do it peaceably if
they can, forcibly if they must, but by all means to do it.
Will you stand by and see your countrymen, your
fellow-citizens of Boston, sent off to slavery by some
commissioner? Shall I see my own parishioners taken from
under my eyes and carried back to bondage, by a man whose
constitutional business it is to work wickedness by statute?
Shall I never lift an arm to protect him? When I consent to
that, you may call me a hireling shepherd, an infidel, a
wolf in sheep's clothing, even a defender of slave-catching
if you will; and I will confess I was a poor dumb dog,
barking always at the moon, but silent as the moon when the
murderer comes near.
"I am not a man who loves violence. I respect the sacredness
of human life. But this I say, solemnly, that I will do all
in my power to rescue any fugitive slave from the hands of
any officer who attempts to return him to bondage. I will
resist him as gently as I know how, but with such strength
as I can command; I will ring the bells, and alarm the
town; I will serve as head, as foot, or as hand to any body
of serious and earnest men, who will go with me, with no
weapons but their hands, in this work. I will do it as
readily as I would lift a man out of the water, or pluck him
from the teeth of a wolf, or snatch him from the hands of a
murderer. What is a fine of a thousand dollars, and jailing
for six months, to the liberty of a man? My money perish
with me, if it stand between me and the eternal law of God.
I trust there are manly men enough in this house to secure
the freedom of every fugitive slave in Boston, without
breaking a limb or rending a garment.
"One thing more I think is very plain, that the fugitive has
the same natural right to defend himself against the
slave-catcher, or his constitutional tool, that he has
against a murderer or a wolf. The man who attacks me to
reduce me to slavery, in that moment of attack alienates his
right to life, and if I were the fugitive, and could escape
in no other way, I would kill him with as little compunction
as I would drive a mosquito from my face. It is high time
this was said. What grasshoppers we are before the statute
of men! what Goliaths against the law of God! What
capitalist heeds your statute of usury when he can get
illegal interest? How many banks are content with _six per
cent._ when money is scarce? Did you never hear of a
merchant evading the duties of the custom-house? When a
man's liberty is concerned, we must keep the law, must we?
betray the wanderer, and expose the outcast?"[211]
[Footnote 211: 2 Occasional Sermons, 256, 257, 258.]
Gentlemen, you know what Mr. Commissioner Hallett said of such
language, said at the Union Meeting in Faneuil Hall.[212] He was only
fugitive slave bill commissioner then; in consequence of his denial of
the Higher Law of God he is now fugitive slave bill Attorney. You know
what Mr. Curtis said of the Sermon; now, in consequence he is Judge
Curtis--the fugitive slave bill Judge.
[Footnote 212: See above, p. 149.]
On the 14th of October there was another meeting at Faneuil Hall--the
Freesoilers came that time. The old flame of Liberty burnt anew in
Charles Francis Adams, who presided. Perhaps some of you remember the
prayer of the venerable Dr. Lowell which lifted up our souls to the
"Father of all men!" I proposed the appointment of a "Committee of
Vigilance and Safety to take such measures as they shall deem just and
expedient to protect the colored people of this city in the enjoyment
of their lives and liberties." I was appointed one of the Committee,
and subsequently Chairman of the Executive Committee of the Vigilance
Committee; a very responsible office, Gentlemen. At that meeting I
told of a fugitive from Boston, who that day had telegraphed to his
wife here, asking if it was safe for him to come back from Canada. I
asked the meeting, "Will you let him come back; how many will defend
him to the worst?" "Here a hand vote was taken," said the newspapers,
"a forest of hands was held up." Surely that was "evincing an express
liking" for an obstruction of the kidnappers. But did it violate the
law of 1790?
All this you might easily have known before. Here is something you did
not know. That Meeting, its Resolutions, its Speeches, its Action,
were brought up in the cabinet of the United States and discussed.
_Mr. Webster_, then Secretary of State, _wished to have Mr. Adams,
president of the meeting, presented to the grand-jury and indicted for
treason_! But the majority thought otherwise.
Gentlemen, when the kidnappers came to Boston I did some things of
which this court has not taken notice, and so I will not speak of them
now, but only tell your grandchildren of, if I live long enough.
Others did more and better than I could do, however. In due time they
will have their reward. One thing let me say now. When the two
brothers Curtis, with their kinsfolk and coadjutors, were seeking to
kidnap the Crafts, I took Ellen to my own house, and kept her there so
long as the (Southern) kidnappers remained in the city. For the first
time I armed myself, and put my house in a state of defence. For two
weeks I wrote my sermons with a sword in the open drawer under my
inkstand, and a pistol in the flap of the desk, loaded, ready, with a
cap on the nipple. Commissioner Curtis said "a process was in the
hands of the marshal ..." in the execution of which, he _might be
called upon to break open dwelling-houses, and perhaps to take life_,
by quelling resistance actual or "_threatened_." I was ready for him.
I knew my rights.
I went also and looked after William Craft. I inspected his weapons;
"his powder had a good kernel, and he kept it dry; his pistols were of
excellent proof; the barrels true, and clean, the trigger went easy,
the caps would not hang fire at the snap. I tested his poignard; the
blade had a good temper, stiff enough and yet springy withal; the
point was sharp."[213] After the immediate danger was over and Knight
and Hughes had avoided the city, where they had received such welcome
from the friends of this Court, such was the tone of the political
newspapers and the commercial pulpit that William and Ellen must needs
flee from America. Long made one by the wedlock of mutual and plighted
faith, their marriage in Georgia was yet "null and void" by the laws
of that "Christian State." I married them according to the law of
Massachusetts. As a symbol of the husband's peculiar responsibility
under such circumstances, I gave William a Sword--it lay on the table
in the house of another fugitive, where the wedding took place--and
told him of his manly duty therewith, if need were, to defend the life
and liberty of Ellen. I gave them both a Bible, which I had bought for
the purpose, to be a symbol of their spiritual culture and a help for
their soul, as the sword was for their bodily life. "With this sword I
thee wed," suited the circumstances of that bridal.
[Footnote 213: 1 Parker's Additional Speeches, 55.]
Mr. and Mrs. Craft were parishioners of mine, and besides I have been
appointed "minister at large in behalf of all fugitive slaves in
Boston." I have helped join men and women in wedlock according to the
customs of various sects and nations. There is one wedlock, a
sacrament, but many forms. Never before did I marry two lovers with
the Sword and the Bible--the form of matrimony for fugitive slaves:
out of that fact perhaps Mr. Attorney can frame an indictment that
will hold water. "If it only resists law and obstructs its officers,"
quoth he, "it is treason, and he who risks it must risk hanging for
it!"
At the great Union meeting, November 26, when Mr. Curtis said "I
should like to ask the Reverend Gentleman in what capacity he expects
to be punished for his _perjury_," I said, "Do you want an answer to
your question, Sir?" No doubt that was obstructing a (prospective)
"officer," then preparing for process. How easily could Scroggs make a
"misdemeanor," or "a seditious libel," out of that question! Allybone
would call it "treason," "levying war."
Thirty-six hours after the Union meeting, on Thanksgiving day, 28th
November, 1850, in a "Sermon of the State of the Nation," I said:--
"I have sometimes been amazed at the talk of men who call on
us to keep the fugitive slave law, one of the most odious
laws in a world of odious laws--a law not fit to be made or
kept. I have been amazed that they should dare to tell us
the law of God, writ on the heavens and our hearts, never
demanded we should disobey the laws of men! Well, suppose it
were so. Then it was old Daniel's duty at Darius' command to
give up his prayer; but he prayed three times a day, with
his windows up. Then it was John's and Peter's duty to
forbear to preach of Christianity; but they said, 'Whether
it be right in the sight of God to hearken unto you more
than unto God, judge ye.' Then it was the duty of Amram and
Jochebed to take up their new-born Moses and cast him into
the Nile, for the law of king Pharaoh, commanding it, was
'constitutional,' and 'political agitation' was
discountenanced as much in Goshen as in Boston. But Daniel
did not obey; John and Peter did not fail to preach
Christianity; and Amram and Jochebed refused 'passive
obedience' to the king's decree! I think it will take a
strong man all this winter to reverse the judgment which the
world has passed on these three cases. But it is 'innocent'
to try.
"However, there is another ancient case, mentioned in the
Bible, in which the laws commanded one thing and conscience
just the opposite. Here the record of the law:--'Now both
the chief priests and the Pharisees had given a commandment,
that if any one knew where he [Jesus] were, he should show
it, that they might take him.' Of course, it became the
official and legal business of each disciple who knew where
Christ was, to make it known to the authorities. No doubt
James and John could leave all and follow him, with others
of the people who knew not the law of Moses, and were
accursed; nay, the women, Martha and Mary, could minister
unto him of their substance, could wash his feet with their
tears, and wipe them with the hairs of their head. They did
it gladly, of their own free will, and took pleasure
therein, I make no doubt. There was no merit in that--'Any
man can perform an agreeable duty.' But there was found one
disciple who could 'perform a disagreeable duty.' He went,
perhaps 'with alacrity,' and betrayed his Saviour to the
marshal of the district of Jerusalem, who was called a
centurion. Had he no affection for Jesus? No doubt; but he
could conquer his prejudices, while Mary and John could
not.
"Judas Iscariot has rather a bad name in the Christian
world: he is called 'The son of perdition,' in the New
Testament, and his conduct is reckoned a 'transgression;'
nay, it is said the devil 'entered into him,' to cause this
hideous sin. But all this it seems was a mistake; certainly,
if we are to believe our 'republican' lawyers and statesmen,
Iscariot only fulfilled his 'constitutional obligations.' It
was only 'on that point,' of betraying his Saviour, that the
constitutional law required him to have any thing to do with
Jesus. He took his 'thirty pieces of silver'--about fifteen
dollars; a Yankee is to do it for ten, having fewer
prejudices to conquer--it was his legal fee, for value
received. True, the Christians thought it was 'The wages of
iniquity,' and even the Pharisees--who commonly made the
commandment of God of none effect by their traditions--dared
not defile the temple with this 'price of blood;' but it was
honest money. Yes, it was as honest a fee as any American
commissioner or deputy will ever get for a similar service.
How mistaken we are! Judas Iscariot is not a traitor! he was
a great patriot; he conquered his 'prejudices,' performed 'a
disagreeable duty,' as an office of 'high morals and high
principle;' he kept the 'law' and the 'Constitution,' and
did all he could to 'save the Union;' nay, he was a saint,
'not a whit behind the very chiefest apostles.' 'The law of
God never commands us to disobey the law of man.' _Sancte
Iscariote ora pro nobis._
"Talk of keeping the fugitive slave law! Come, come, we know
better. Men in New England know better than this. We know
that we ought not to keep a wicked law, and that it must not
be kept when the law of God forbids!
"One of the most awful spectacles I ever saw, was this: A
vast multitude attempting, at an orator's suggestion [Hon.
Mr. Hallett], to howl down the 'Higher law,' and when he
said, Will you have this to rule over you? they answered,
'Never!' and treated the 'Higher law' to a laugh and a howl!
It was done in Faneuil Hall; under the eyes of the three
Adamses, Hancock, and Washington; and the howl rung round
the venerable arches of that hall! I could not but ask, 'Why
do the heathen rage, and the people imagine a vain thing?
the rulers of the earth set themselves, and kings take
counsel against the Lord and say, Let us break his bands
asunder, and cast off his yoke from us.' Then I could not
but remember that it was written, 'He that sitteth in the
heavens shall laugh; the Lord shall have them in derision.'
'He taketh up the isles as a very little thing, and the
inhabitants of the earth are as grasshoppers before Him.'
Howl down the law of God at a magistrate's command! Do this
in Boston! Let us remember this--but with charity."
"I do not believe there is more than one of the New England
men who publicly helped the law into being, but would
violate its provisions; conceal a fugitive; share his loaf
with a runaway; furnish him golden wings to fly with. Nay, I
think it would be difficult to find a magistrate in New
England, willing to take the public odium of doing the
official duty. I believe it is not possible to find a
regular jury, who will punish a man for harboring a slave,
for helping his escape, or fine a marshal or commissioner
for being a little slow to catch a slave. Men will talk loud
in public meetings, but they have some conscience after all,
at home. And though they howl down the 'Higher law' in a
crowd, yet conscience will make cowards of them all, when
they come to lay hands on a Christian man, more innocent
than they, and send him into slavery for ever! One of the
commissioners of Boston talked loud and long, last Tuesday,
in favor of keeping the law. When he read his litany against
the law of God, and asked if men would keep the 'Higher
law,' and got 'Never' as the welcome, and amen for
response--it seemed as if the law might be kept, at least by
that commissioner, and such as gave the responses to his
creed. But slave-hunting Mr. Hughes, who came here for two
of our fellow-worshippers, in his Georgia newspaper, tells a
different story. Here it is from the 'Georgia Telegraph,' of
last Friday. 'I called at eleven o'clock at night, at his
[the commissioner's] residence, and stated to him my
business, and asked him for a warrant, saying that if I
could get a warrant, I could have the negroes [William and
Ellen Craft] arrested. He said the law did not authorize a
warrant to be issued: that it was my duty to go and arrest
the negro without a warrant, and bring him before him!' This
is more than I expected. 'Is Saul among the prophets?' The
men who tell us that the law must be kept, God willing, or
against His will--there are Puritan fathers behind them
also; Bibles in their houses; a Christ crucified, whom they
think of; and a God even in their world, who slumbers not,
neither is weary, and is as little a respecter of parchments
as of persons! They know there is a people, as well as
politicians, a posterity not yet assembled, and they would
not like to have certain words writ on their tomb-stone.
'Traitor to the rights of mankind,' is no pleasant epitaph.
They, too, remember there is a day after to-day; aye, a
forever; and 'Inasmuch as ye have not done it unto one of
the least of these my brethren, ye have not done it unto
me,' is a sentence they would not like to hear at the day of
judgment."[214]
[Footnote 214: 2 Parker's Occasional Sermons, pp. 298-300, 301, 302,
304, 305.]
Gentlemen, you see by the faces of this Honorable Court, and you know
by what these honorable functionaries and their coadjutors have done
out of its limit, how much I was mistaken in the notion that no Boston
Commissioner would ever kidnap a man! Perhaps you will pardon me for
the mistake. I will soon explain it by a quotation.
After the rescue of Shadrach, in my Sunday prayer I publicly gave God
the thanks of the congregation for the noble deed. Perhaps that was a
crime. I think Judge Saunders could make it appear that I was an
"accessory after the fact," and then Judge Curtis could call the
offence not a felony but a "misdemeanor," and "in misdemeanors all are
principals." Nay, it might be "levying war" "with force and arms."
After the Hon. Judge Sprague had made himself glorious by charging the
jury "to obey both" the will of God and the laws of men, which forbid
that will; and after Commissioner Curtis had kidnapped Mr. Sims, while
he still had him in his unlawful jail, on Fast-day, April 10, 1851, I
preached a sermon "of the Chief Sins of the People," and said,--
"He [Judge Sprague] supposes a case: that the people ask
him, 'Which shall we obey, the law of man or the will of
God?' He says, 'I answer, obey both. The incompatibility
which the question assumes does not exist.'
"So, then, here is a great general rule, that between the
'law of man' and the 'will of God' there is no
incompatibility, and we must 'obey both.' Now let us see how
this rule will work.
"If I am rightly informed, King Ahab made a law that all the
Hebrews should serve Baal, and it was the will of God that
they should serve the Lord. According to this rule of the
judge, they must 'obey both.' But if they served Baal, they
could not serve the Lord. In such a case, 'what is to be
done?' We are told that Elijah gathered the prophets
together: 'and he came unto all the people, and said, How
long halt ye? If the Lord be God, follow him; but if Baal,
then follow him.' Our modern prophet says, 'Obey both. The
incompatibility which the question assumes does not exist.'
Such is the difference between Judge Elijah and Judge Peleg.
"Let us see how this rule will work in other cases; how you
can make a compromise between two opposite doctrines. The
king of Egypt commanded the Hebrew nurses, 'When you do the
office of a midwife to the Hebrew women, if it be a son ye
shall kill him.' I suppose it is plain to the Judge of the
Circuit Court that this kind of murder, killing the new-born
infants, is against 'the will of God;' but it is a matter of
record that it was according to 'the law of man.' Suppose
the Hebrew nurses had come to ask Judge Sprague for his
advice. He must have said, 'Obey both!' His rule is a
universal one.
"Another decree was once made, as it is said in the Old
Testament, that no man should ask any petition of any God
for thirty days, save of the king, on penalty of being cast
into the den of lions. Suppose Daniel--I mean the old
Daniel, the prophet--should have asked him, What is to be
done? Should he pray to Darius or pray to God? 'Obey both!'
would be the answer. But he cannot, for he is forbid to pray
to God. We know what Daniel did do.
"The elders and scribes of Jerusalem commanded the
Christians not to speak or to teach at all in the name of
Jesus; but Peter and John asked those functionaries,
'Whether it be right in the sight of God to hearken unto you
more than unto God, judge ye.' Our judge must have said,
There is no 'incompatibility;' 'obey both!' What 'a
comfortable Scripture' this would have been to poor John
Bunyan! What a great ethical doctrine to St. Paul! He did
not know such Christianity as that. Before his time a
certain man had said, 'No man can serve two masters.' But
there was one person who made the attempt, and he also is
eminent in history. Here was 'the will of God,' to do to
others as you would have others do to you: 'Love thy
neighbor as thyself.' Here is the record of 'the law of
man:' 'Now both the chief priests and the Pharisees had
given a commandment, that, if any man knew where he [Jesus]
were, he should show it that they might take him.' Judas, it
seems, determined to 'obey both,'--'the law of man' and 'the
will of God.' So he sat with Jesus at the Last Supper,
dipped his hand in the same dish, and took a morsel from the
hand of Christ, given him in token of love. All this he did
to obey 'the will of God.' Then he went and informed the
Commissioner or Marshal where Jesus was. This he did to obey
'the law of man.' Then he came back, and found Christ,--the
agony all over, the bloody sweat wiped off from his brow
presently to bleed again,--the Angel of Strength there with
him to comfort him. He was arousing his sleeping disciples
for the last time, and was telling them, 'Pray, lest ye
enter into temptation.' Judas came and gave him a kiss. To
the eleven it seemed the friendly kiss, obeying 'the will of
God.' To the Marshal it also seemed a friendly
kiss,--obeying 'the law of man.' So, in the same act, he
obeys 'the law of God' and 'the will of man,' and there is
no 'incompatibility!'
"Of old it was said, 'Thou canst not serve God and mammon.'
He that said it, has been thought to know something of
morals,--something of religion.
"Till the fugitive slave law was passed, we did not know
what a great saint Iscariot was. I think there ought to be a
chapel for him, and a day set apart in the calendar. Let him
have his chapel in the navy yard at Washington. He has got a
priest there already. And for a day in the calendar--set
apart for all time the seventh of March!"
"Last Thanksgiving day, I said it would be difficult to find
a magistrate in Boston to take the odium of sending a
fugitive back to slavery. I believed, after all, men had
some conscience, although they talked about its being a duty
to deliver up a man to bondage. Pardon me, my country, that
I rated you too high! Pardon me, town of Boston, that I
thought your citizens all men! Pardon me, lawyers, that I
thought you had been all born of mothers! Pardon me,
ruffians, who kill for hire! I thought you had some animal
mercy left, even in your bosom! Pardon me, United States'
commissioners, marshals, and the like, I thought you all had
some shame! Pardon me, my hearers, for such mistakes. One
commissioner was found to furnish the warrant [Mr. George T.
Curtis]! Pardon me, I did not know he was a commissioner; if
I had, I never would have said it!
"Spirits of tyrants, I look down to you! Shade of Cain, you
great first murderer, forgive me that I forgot your power,
and did not remember that you were parent of so long a line!
And you, my brethren, if hereafter I tell you that there is
any limit of meanness or wickedness which a Yankee will not
jump over, distrust me, and remind me of this day, and I
will take it back!
"Let us look at the public conduct of any commissioner who
will send an innocent man from Boston into slavery. I would
speak of all men charitably; for I know how easy it is to
err, yea, to sin. I can look charitably on thieves, prowling
about in darkness; on rum-sellers, whom poverty compels to
crime; on harlots, who do the deed of shame that holy
woman's soul abhors and revolts at; I can pity the pirate,
who scours the seas doing his fiendish crimes--he is
tempted, made desperate by a gradual training in wickedness.
The man, born at the South, owning slaves, who goes to
Africa and sells adulterated rum in exchange for men to
retail at Cuba,--I cannot understand the consciousness of
such a man; yet I can admit that by birth and by breeding he
has become so imbruted he knows no better. Nay, even that he
may perhaps justify his conduct to himself. I say I think
his sin is not so dreadful as that of a commissioner in
Boston who sends a man into slavery. A man commits a murder,
inflamed by jealousy, goaded by desire of great gain,
excited by fear, stung by malice, or poisoned by revenge,
and it is a horrid thing. But to send a man into slavery is
worse than to murder him. I should rather be slain than
enslaved. To do this, inflamed by no jealousy, goaded by no
desire of great gain,--only ten dollars!--excited by no
fear, stung by no special malice, poisoned by no revenge,--I
cannot comprehend that in any man, not even in a hyena.
Beasts that raven for blood do not kill for killing's sake,
but to feed their flesh. Forgive me, O ye wolves and hyenas!
that I bring you into such company. I can only understand it
in a devil!
"When a man bred in Massachusetts, whose Constitution
declares that 'All men are born free and equal;' within
sight of Faneuil Hall, with all its sacred memories; within
two hours of Plymouth Rock; within a single hour of Concord
and Lexington; in sight of Bunker Hill,--when he will do
such a deed, it seems to me that there is no life of crime
long enough to prepare a man for such a pitch of depravity;
I should think he must have been begotten in sin, and
conceived in iniquity, and been born 'with a dog's head on
his shoulders;' that the concentration of the villany of
whole generations of scoundrels would hardly be enough to
fit a man for a deed like this!"
"Last Thursday night,--when odious beasts of prey, that dare
not face the light of heaven, prowl through the
woods,--those ruffians of the law seized on their brother
man. They lie to the bystanders, and seize him on a false
pretence. There is their victim--they hold him fast. His
faithless knife breaks in his hand; his coat is rent to
pieces. He is the slave of Boston. Can you understand his
feelings? Let us pass by that. His 'trial!' Shall I speak of
that? He has been five days on trial for more than life, and
has not seen a judge! A jury? No,--only a commissioner! O
justice! O republican America! Is this the liberty of
Massachusetts?
"Where shall I find a parallel with men who will do such a
deed,--do it in Boston? I will open the tombs, and bring up
most hideous tyrants from the dead. Come, brood of monsters,
let me bring you up from the deep damnation of the graves
wherein your hated memories continue for all time their
never-ending rot. Come, birds of evil omen! come, ravens,
vultures, carrion-crows, and see the spectacle! come, see
the meeting of congenial souls! I will disturb, disquiet,
and bring up the greatest monsters of the human race!
Tremble not, women; tremble not, children; tremble not, men!
They are all dead! They cannot harm you now! Fear the
living, not the dead!
"Come hither, Herod the wicked! Thou that didst seek after
that young child's life, and destroyed the Innocents! Let me
look on thy face! No; go! Thou wert a heathen! Go, lie with
the Innocents thou hast massacred. Thou art too good for
this company!
"Come, Nero! Thou awful Roman Emperor! Come up! No; thou
wast drunk with power! schooled in Roman depravity. Thou
hadst, besides, the example of thy fancied gods! Go, wait
another day. I will seek a worser man.
"Come hither, St. Dominic! come, Torquemada!--Fathers of the
Inquisition! Merciless monsters, seek your equal here! No;
pass by! You are no companions for such men as these! You
were the servants of atheistic popes, of cruel kings. Go to,
and get you gone. Another time I may have work for you,--not
now; lie there and persevere to rot. You are not yet quite
wicked and corrupt enough for this comparison. Go, get ye
gone, lest the sun turn back at sight of ye!
"Come up, thou heap of wickedness, George Jeffreys!--thy
hands deep purple with the blood of thy murdered fellow men!
Ah, I know thee! awful and accursed shade! Two hundred years
after thy death, men hate thee still, not without cause! Let
me look upon thee! I know thy history. Pause and be still,
while I tell it to these men.
"Brothers, George Jeffreys 'began in the sedition line.'
'There was no act, however bad, that he would not resort to
to get on.' 'He was of a bold aspect, and cared not for the
countenance of any man.' 'He became the avowed, unblushing
slave of the court, and the bitter persecutor and
unappeasable enemy of the principles he had before
supported.' 'He was universally insolent and overbearing.'
'As a judge, he did not consider the decencies of his post,
nor did he so much as affect to be impartial, as became a
judge.' His face and voice were always unamiable. 'All
tenderness for the feelings of others, all self-respect were
obliterated from his mind.' He had 'a delight in misery,
merely as misery,' and 'that temper which tyrants require in
their worst instruments.' 'He made haste to sell his
forehead of brass and his tongue of venom to the court.' He
had 'more impudence than ten carted street-walkers;' and was
appropriately set to a work 'which could be trusted to no
man who reverenced law, or who was sensible of shame.' He
was a 'Commissioner' in 1685. You know of the 'Bloody
assizes' which he held, and how he sent to execution three
hundred and twenty persons in a single circuit. 'The whole
country was strewed with the heads and limbs of his
victims.' Yet a man wrote that 'A little more hemp might
have been usefully employed.' He was the worst of the
English judges. 'There was no measure, however illegal, to
the execution of which he did not devotedly and recklessly
abandon himself.' 'During the Stuart reigns, England was
cursed by a succession of ruffians in ermine, who, for the
sake of court favor, wrested the principles of law, the
precepts of religion, and the duties of humanity; but they
were all greatly outstripped by Jeffreys.' Such is his
history.
"Come, shade of a judicial butcher! Two hundred years thy
name has been pilloried in face of the world, and thy memory
gibbeted before mankind. Let us see how thou wilt compare
with those who kidnap men in Boston! Go seek companionship
with them! Go claim thy kindred, if such they be! Go tell
them that the memory of the wicked shall rot,--that there is
a God; an Eternity; ay! and a Judgment too! where the slave
may appeal against him that made him a slave, to Him that
made him a man.
"What! Dost thou shudder? Thou turn back! These not thy
kindred! Why dost thou turn pale, as when the crowd
clutched at thy life in London Street? It is true, George
Jeffreys, and these are not thy kin. Forgive me that I
should send thee on such an errand, or bid thee seek
companionship with such--with Boston hunters of the slave!
Thou wert not base enough! It was a great bribe that tempted
thee! Again I say, pardon me for sending thee to keep
company with such men! Thou only struckst at men accused of
crime; not at men accused only of their birth! Thou wouldst
not send a man into bondage for two pounds! I will not rank
thee with men who, in Boston, for ten dollars, would enslave
a negro now! Rest still, Herod! Be quiet, Nero! Sleep, St.
Dominic, and sleep, O Torquemada! in your fiery jail! Sleep,
Jeffreys, underneath 'the altar of the church' which seeks
with Christian charity to hide your hated bones."
"Well, my brethren, these are only the beginning of sorrows.
There will be other victims yet; this will not settle the
question. What shall we do? I think I am a calm man and a
cool man, and I have a word or two to say as to what we
shall do. Never obey the law. Keep the law of God. Next I
say, resist not evil with evil; resist not now with
violence. Why do I say this? Will you tell me that I am a
coward? Perhaps I am; at least I am not afraid to be called
one. Why do I say, then, do not now resist with violence?
Because it is not time just yet; it would not succeed. If I
had the eloquence that I sometimes dream of, which goes into
a crowd of men, and gathers them in its mighty arm, and
sways them as the pendent boughs of yonder elm shall be
shaken by the summer breeze next June, I would not give that
counsel. I would call on men, and lift up my voice like a
trumpet through the whole land, until I had gathered
millions out of the North and the South, and they should
crush slavery for ever, as the ox crushes the spider
underneath his feet. But such eloquence is given to no man.
It was not given to the ancient Greek who 'shook the arsenal
and fulmined over Greece.' He that so often held the nobles
and the mob of Rome within his hand, had it not. He that
spoke as never man spake, and who has since gathered two
hundred millions to his name, had it not. No man has it. The
ablest must wait for time! It is idle to resist here and
now. It is not the hour. If in 1765 they had attempted to
carry out the Revolution by force, they would have failed.
Had it failed, we had not been here to-day. There would have
been no little monument at Lexington 'sacred to liberty and
the rights of mankind' honoring the men who 'fell in the
cause of God and their country.' No little monument at
Concord; nor that tall pile of eloquent stone at Bunker
Hill, to proclaim that 'Resistance to tyrants is obedience
to God.' Success is due to the discretion, heroism,
calmness, and forbearance of our fathers: let us wait our
time. It will come--perhaps will need no sacrifice of
blood."[215]
[Footnote 215: 2 Parker's Occasional Sermons, p. 334-337, 343-348,
351, 352.]
Gentlemen, I think Judge Finch could construct a misdemeanor out of
these words; you will find in them nothing but the plain speech of a
minister of the Christian religion.
On the 6th of July, 1851, I preached "Of the three chief Safeguards of
Society," and said:--
"Nowhere in the world is there a people so orderly, so much
attached to law, as the people of these Northern States. But
one law is an exception. The people of the North hate the
fugitive slave law, as they have never hated any law since
the stamp act. I know there are men in the Northern States
who like it,--who would have invented slavery, had it not
existed long before. But the mass of the Northern people
hate this law, because it is hostile to the purpose of all
just human law, hostile to the purpose of society, hostile
to the purpose of individual life; because it is hostile to
the law of God,--bids the wrong, forbids the right. We
disobey that, for the same reason that we keep other laws:
because we reverence the law of God. Why should we keep that
odious law which makes us hated wherever justice is loved?
Because we must sometimes do a disagreeable deed to
accomplish an agreeable purpose? The purpose of that law is
to enable three hundred thousand slaveholders to retake on
our soil the men they once stole on other soil! Most of the
city churches of the North seem to think that is a good
thing. Very well; is it worth while for fifteen million
freemen to transgress the plainest of natural laws, the most
obvious instincts of the human heart, and the plainest
duties of Christianity, for that purpose? The price to pay
is the religious integrity of fifteen million men; the thing
to buy is a privilege for three hundred thousand
slaveholders to use the North as a hunting field whereon to
kidnap men at our cost. Judge you of that bargain."
"I adjure you to reverence a government that is right,
statutes that are right, officers that are right; but to
disobey every thing that is wrong. I intreat you by your
love for your country, by the memory of your fathers, by
your reverence for Jesus Christ, yea, by the deep and holy
love of God which Jesus taught, and you now feel."[216]
[Footnote 216: 2 Parker's Occasional Sermons, p. 392-394.]
You will say all this is but indispensable duty; but the judge who
hanged a man for treason because he promised to make his son "heir to
the Crown"--meaning the "Crown Tavern" that he lived in--would
doubtless find treason in my words also.
On the 12th of April, 1852, I delivered an address to commemorate the
first anniversary of the Kidnapping of Thomas Sims, and said:--
"But when the rulers have inverted their function, and
enacted wickedness into a law which treads down the
unalienable rights of man to such a degree as this, then I
know no ruler but God, no law but natural Justice. I tear
the hateful statute of kidnappers to shivers; I trample it
underneath my feet. I do it in the name of all law; in the
name of Justice and of Man; in the name of the dear God."
"You remember the decision of the Circuit judge,--himself
soon to be summoned by death before the Judge who is no
respecter of persons,--not allowing the destined victim his
last hope, 'the great writ of right.' The decision left him
entirely at the mercy of the other kidnappers. The
Court-room was crowded with 'respectable people,' 'gentlemen
of property and standing:' they received the decision with
'applause and the clapping of hands.' Seize a lamb out of a
flock, a wolf from a pack of wolves, the lambs bleat with
sympathy, the wolves howl with fellowship and fear; but when
a competitor for the Presidency sends back to eternal
bondage a poor, friendless negro, asking only his limbs,
wealthy gentlemen of Boston applaud the outrage.
"'O judgment! thou art fled to brutish beasts,
And men have lost their reason!'"
"When the Fugitive Slave Bill passed, the six New England
States lay fast asleep: Massachusetts slept soundly, her
head pillowed on her unsold bales of cotton and of woollen
goods, dreaming of 'orders from the South.' Justice came to
waken her, and whisper of the peril of nine thousand
citizens; and she started in her sleep, and, being frighted,
swore a prayer or two, then slept again. But Boston
woke,--sleeping, in her shop, with ears open, and her eye on
the market, her hand on her purse, dreaming of goods for
sale,--Boston woke broadly up, and fired a hundred guns for
joy. O Boston, Boston! if thou couldst have known, in that
thine hour, the things which belong unto thy peace! But no:
they were hidden from her eyes. She had prayed to her god,
to Money; he granted her the request, but sent leanness into
her soul."
"Yet one charge has been made against the Government, which
seems to me a little harsh and unjust. It has been said the
administration preferred low and contemptible men as their
tools; judges who blink at law, advocates of infamy, and men
cast off from society for perjury, for nameless crimes, and
sins not mentionable in English speech; creatures 'not so
good as the dogs that licked Lazarus's sores; but, like
flies, still buzzing upon any thing that is raw.' There is a
semblance of justice in the charge: witness Philadelphia,
Buffalo, Boston; witness New York. It is true, for
kidnappers the Government did take men that looked 'like a
bull-dog just come to man's estate;' men whose face declared
them, 'if not the devil, at least his twin-brother.' There
are kennels of the courts wherein there settles down all
that the law breeds most foul, loathsome, and hideous and
abhorrent to the eye of day; there this contaminating puddle
gathers its noisome ooze, slowly, stealthily, continually,
agglomerating its fetid mass by spontaneous cohesion, and
sinking by the irresistible gravity of rottenness into that
abhorred deep, the lowest, ghastliest pit in all the
subterranean vaults of human sin. It is true the Government
has skimmed the top and dredged the bottom of these kennels
of the courts, taking for its purpose the scum and sediment
thereof, the Squeers, the Fagins, and the Quilps of the law,
the monsters of the court. Blame not the Government; it took
the best it could get. It was necessity, not will, which
made the selection. Such is the stuff that kidnappers must
be made of. If you wish to kill a man, it is not bread you
buy: it is poison. Some of the instruments of Government
were such as one does not often look upon. But, of old time,
an inquisitor was always 'a horrid-looking fellow, as
beseemed his trade.' It is only justice that a kidnapper
should bear 'his great commission in his look.'"
"I pity the kidnappers, the poor tools of men almost as
base. I would not hurt a hair of their heads; but I would
take the thunder of the moral world, and dash its bolted
lightning on this crime of stealing men, till the name of
kidnapping should be like Sodom and Gomorrah. It is piracy
to steal a man in Guinea; what is it to do this in Boston?
"I pity the merchants who, for their trade, were glad to
steal their countrymen; I wish them only good. Debate in
yonder hall has shown how little of humanity there is in the
trade of Boston. She looks on all the horrors which
intemperance has wrought, and daily deals in every street;
she scrutinizes the jails,--they are filled by rum; she
looks into the alms-houses, crowded full by rum; she walks
her streets, and sees the perishing classes fall, mowed down
by rum; she enters the parlors of wealthy men, looks into
the bridal chamber, and meets death: the ghosts of the slain
are there,--men slain by rum. She knows it all, yet says,
'There is an interest at stake!'--the interest of rum; let
man give way! Boston does this to-day. Last year she stole a
man; her merchants stole a man! The sacrifice of man to
money, when shall it have an end? I pity those merchants who
honor money more than man. Their gold is cankered, and their
soul is brass,--is rusted brass. They must come up before
the posterity which they affect to scorn. What voice can
plead for them before their own children? The eye that
mocketh at the justice of its son, and scorneth to obey the
mercy of its daughter, the ravens of posterity shall pick it
out, and the young eagles eat it up!
"But there is yet another tribunal: 'After the death the
judgment!' When he maketh inquisition for the blood of the
innocent, what shall the stealers of men reply? Boston
merchants, where is your brother, Thomas Sims? Let Cain
reply to Christ."[217]
[Footnote 217: 1 Parker's Additional Speeches, p. 50, 70, 88, 89, 92,
93, 100, 101.]
The Sunday after Mr. Webster's death, Oct. 31, 1852, I spoke of that
powerful man; listen to this:--
"Mr. Webster stamped his foot, and broke through into the
great hollow of practical atheism, which undergulfs the
State and Church. Then what a caving in was there! The
firm-set base of northern cities quaked and yawned with
gaping rents. 'Penn's sandy foundation' shook again, and
black men fled from the city of brotherly love, as doves,
with plaintive cry, flee from a farmer's barn when summer
lightning stabs the roof. There was a twist in Faneuil Hall,
and the doors could not open wide enough for Liberty to
regain her ancient Cradle; only soldiers, greedy to steal a
man, themselves stole out and in. Ecclesiastic quicksand ran
down the hole amain. Metropolitan churches toppled, and
pitched, and canted, and cracked, their bowing walls all out
of plumb. Colleges, broken from the chain which held them in
the stream of time, rushed towards the abysmal rent. Harvard
led the way, '_Christo et Ecclesiæ_' in her hand. Down
plunged Andover, 'Conscience and the Constitution' clutched
in its ancient, failing arm. New Haven began to cave in.
Doctors of Divinity, orthodox, heterodox, with only a doxy
of doubt, 'no settled opinion,' had great alacrity in
sinking, and went down quick, as live as ever, into the pit
of Korah, Dathan, and Abiram, the bottomless pit of lower
law,--one with his mother, cloaked by a surplice, hid
beneath his sinister arm, and an acknowledged brother
grasped by his remaining limb. Fossils of theology, dead as
Ezekiel's bones, took to their feet again, and stood up for
most arrant wrong. 'There is no higher law of God,' quoth
they, as they went down; 'no golden rule, only the statutes
of men.' A man with mythologic ear might fancy that he heard
a snickering laugh run round the world below, snorting,
whinnying, and neighing, as it echoed from the infernal spot
pressed by the fallen monsters of ill-fame, who, thousands
of years ago, on the same errand, had plunged down the
self-same way. What tidings the echo bore, Dante nor Milton
could not tell. Let us leave that to darkness, and to
silence, and to death.
"But spite of all this, in every city, in every town, in
every college, and in each capsizing church, there were
found Faithful Men, who feared not the monster, heeded not
the stamping;--nay, some doctors of divinity were found
living. In all their houses there was light, and the
destroying angel shook them not. The word of the Lord came
in open vision to their eye; they had their lamps trimmed
and burning, their loins girt; they stood road-ready.
Liberty and Religion turned in thither, and the slave found
bread and wings. 'When my father and my mother forsake me,
then the Lord will hold me up!'
"After the 7th of March, Mr. Webster became the ally of the
worst of men, the forefront of kidnapping. The orator of
Plymouth Rock was the advocate of slavery; the hero of
Bunker Hill put chains round Boston Court House; the
applauder of Adams and Jefferson was a tool of the
slaveholder, and a keeper of slavery's dogs, the associate
of the kidnapper, and the mocker of men who loved the right.
Two years he lived with that rabble rout for company, his
name the boast of every vilest thing.
"'Oh, how unlike the place from whence he fell!'"
"Do men mourn for him? See how they mourn! The streets are
hung with black. The newspapers are sad colored. The shops
are put in mourning. The Mayor and Aldermen wear crape.
Wherever his death is made known, the public business stops,
and flags drop half-mast down. The courts adjourn. The
courts of Massachusetts--at Boston, at Dedham, at Lowell,
all adjourn; the courts of New Hampshire, of Maine, of New
York; even at Baltimore and Washington, the courts adjourn;
for the great lawyer is dead, and Justice must wait another
day. Only the United States Court, in Boston, trying a man
for helping Shadrach out of the furnace of the
kidnappers,--the court which executes the Fugitive Slave
Bill,--that does not adjourn; that keeps on; its worm dies
not, and the fire of its persecution is not quenched, when
death puts out the lamp of life! Injustice is hungry for its
prey, and must not be balked. It was very proper! Symbolical
court of the Fugitive Slave Bill--it does not respect life,
why should it death? and, scorning liberty, why should it
heed decorum?"[218]
[Footnote 218: 1 Parker's Additional Speeches, 235-37, 246-47.]
On the 12th of February, 1854, I preached "Some Thoughts on the new
Assault upon Freedom in America."
"Who put Slavery in the Constitution; made it Federal? who
put it in the new States? who got new soil to plant it in?
who carried it across the Mississippi--into Louisiana,
Florida, Texas, Utah, New Mexico? who established it in the
Capital of the United States? who adopted Slavery and
volunteered to catch a runaway, in 1793, and repeated the
act in 1850,--in defiance of all law, all precedent, all
right? Why, it was the North. 'Spain armed herself with
bloodhounds,' said Mr. Pitt, 'to extirpate the wretched
natives of America.' In 1850, the Christian Democracy set
worse bloodhounds afoot to pursue Ellen Craft; offered them
five dollars for the run, if they did not take her; ten if
they did! The price of blood was Northern money; the
bloodhounds--they were Kidnappers born at the North, bred
there, kennelled in her church, fed on her sacraments,
blessed by her priests! In 1778, Mr. Pitt had a yet harsher
name for the beasts wherewith despotic Spain hunted the red
man in the woods--he called them '_Hell Hounds_.' But they
only hunted 'savages, heathens, men born in barbarous
lands.' What would he say of the pack which in 1851 hunted
American Christians, in the 'Athens of America,' and stole a
man on the grave of Hancock and Adams--all Boston looking
on, and its priests blessing the deed!"
"See what encourages the South to make new encroachments.
She has been eminently successful in her former demands,
especially with the last. The authors of the fugitive slave
bill did not think that enormity could be got through
Congress: it was too atrocious in itself, too insulting to
the North. But Northern men sprang forward to defend
it--powerful politicians supported it to the fullest extent.
The worse it was, the better they liked it. Northern
merchants were in favor of it--it 'would conciliate the
South.' Northern ministers in all the churches of commerce
baptized it, defended it out of the Old Testament, or the
New Testament. The Senator of Boston gave it his mighty
aid,--he went through the land a huckster of Slavery,
peddling Atheism: the Representative of Boston gave it his
vote. Their constituents sustained both! All the great
cities of the North executed the bill. The leading Journals
of Boston advised the merchants to withhold all commercial
intercourse from Towns which opposed Kidnapping. There was a
'Union Meeting' at Faneuil Hall. You remember the men on the
platform: the speeches are not forgotten. The doctrine that
there is a Law of God above the passions of the multitude
and the ambition of their leaders, was treated with scorn
and hooting: a loud guffaw of vulgar ribaldry went up
against the Justice of the Infinite God! All the great
cities did the same. Atheism was inaugurated as the first
principle of Republican government; in politics, religion
makes men mad! Mr. Clay declared that 'no Northern gentleman
will ever help return a fugitive Slave!' What took place at
Philadelphia? New York? Cincinnati?--nay, at Boston? The
Northern churches of commerce thought Slavery was a
blessing, Kidnapping a 'grace.' The Democrats and Whigs vie
with each other in devotion to the fugitive slave bill. The
'Compromises' are the golden rule. The North conquered her
prejudices. The South sees this, and makes another demand.
Why not? I am glad of it. She serves us right."
"In 1775, what if it had been told the men all red with
battle at Lexington and Bunker Hill,--'your sons will gird
the Court House with chains to kidnap a man; Boston will
vote for a Bill which puts the liberty of any man in the
hands of a Commissioner, to be paid twice as much for making
a Slave as for declaring a freeman; and Boston will call out
its soldiers to hunt a man through its streets!' What if on
the 19th of April, 1775, when Samuel Adams said, 'Oh! what a
glorious morning is this!' as he heard the tidings of war in
the little village where he passed the night,--what if it
had been told him,--'On the 19th of April, seventy-six years
from this day, will your City of Boston land a poor youth at
Savannah, having violated her own laws, and stained her
Magistrates' hands, in order to put an innocent man in a
Slave-master's jail?' What if it had been told him that
Ellen Craft must fly out of Democratic Boston, to Monarchic,
Theocratic, Aristocratic England, to find shelter for her
limbs, her connubial innocence, and the virtue of her
woman's heart? I think Samuel would have cursed the day in
which it was said a man-child was born, and America was
free! What if it had been told Mayhew and Belknap, that in
the pulpits of Boston, to defend kidnapping should be
counted to a man as righteousness? They could not have
believed it. They did not know what baseness could suck the
Northern breast, and still be base."[219]
[Footnote 219: 1 Parker's Additional Speeches, p. 351, 352, 357-359,
368, 369.]
You will think all this is good morality; but Mr. Curtis in 1836,
maintained that kidnapping in Massachusetts, would "promote harmony
and good-will where it is extremely desirable to promote it, encourage
frequent intercourse, and soften prejudice by increasing acquaintance,
and tend to peace and good-will." Nay, that it may be "perfectly
consistent with our policy ... _to interfere actively to enable the
citizens of those States_ [the slave States] _to enjoy those
institutions at home_." "Slavery is not immoral;" "By the law of this
Commonwealth slavery is not immoral."[220]
[Footnote 220: Med Case, p. 9, 11.]
After Commissioner Loring had kidnapped Anthony Burns, I attended the
meeting at Faneuil Hall, and spoke. Gentlemen, I did not finish the
speech I had begun, for news came that an attack was made on the Court
House, and the meeting was thrown into confusion. I did not speak in a
corner, but in the old Cradle of Liberty. Here is the report of the
speech which was made by a phonographer, and published in the
newspapers of the time--I have no other notes of it. You shall see if
there be a misdemeanor in it. Here is the speech:--
"FELLOW-SUBJECTS OF VIRGINIA--[Loud cries of 'No,' 'no,' and 'you must
take that back!'] FELLOW-CITIZENS OF BOSTON, then--['Yes,' 'yes,']--I
come to condole with you at this second disgrace which is heaped on
the city made illustrious by _some_ of those faces that were once so
familiar to our eyes. [Alluding to the portraits which _once hung_
conspicuously in Faneuil Hall, but which had been removed to obscure
and out-of-the-way locations.] Fellow-citizens--A deed which Virginia
commands has been done in the city of John Hancock and the 'brace of
Adamses.' It was done by a Boston hand. It was a Boston man who issued
the warrant; it was a Boston Marshal who put it in execution; they are
Boston men who are seeking to kidnap a citizen of Massachusetts, and
send him into slavery for ever and ever. It is our fault that it is
so. Eight years ago, a merchant of Boston 'kidnapped a man on the high
road between Faneuil Hall and Old Quincy,' at 12 o'clock,--at the noon
of day,--and the next day, mechanics of this city exhibited the
half-eagles they had received for their share of the spoils in
enslaving a brother man. You called a meeting in this hall. It was as
crowded as it is now. I stood side by side with my friend and former
neighbor, your honorable and noble Chairman to-night [George R.
Russell, of West Roxbury], [Loud Cheers,] while this man who had
fought for liberty in Greece, and been imprisoned for that sacred
cause in the dungeons of Poland, [Dr. Samuel G. Howe,] stood here and
introduced to the audience that 'old man eloquent,' John Quincy Adams.
[Loud Cheers.]
"It was the last time he ever stood in Faneuil Hall. He came to defend
the unalienable rights of a friendless negro slave, kidnapped in
Boston. There is even no picture of John Quincy Adams to-night.
"A Suffolk Grand-Jury would find no indictment against the Boston
merchant for kidnapping that man. ['Shame,' 'shame.'] If Boston had
spoken then, we should not have been here to-night. We should have had
no fugitive slave bill. When that bill passed, we fired a hundred
guns.
"Don't you remember the Union meeting held in this very hall? A man
stood on this platform,--he is a Judge of the Supreme Court now,--and
he said--When a certain 'Reverend gentleman' is indicted for perjury,
I should like to ask him how he will answer the charge? And when that
'Reverend gentleman' rose, and asked, 'Do you want an answer to your
question?' Faneuil Hall cried out,--'No,' 'no,'--'Throw him over!' Had
Faneuil Hall spoken then on the side of Truth and Freedom, we should
not now be the subjects of Virginia.
"Yes, we are the vassals of Virginia. She reaches her arm over the
graves of our mothers, and kidnaps men in the city of the Puritans;
over the graves of Samuel Adams and John Hancock. [Cries of 'Shame!']
'Shame!' so I say; but who is to blame? 'There is no north,' said Mr.
Webster. There is none. The South goes clear up to the Canada line.
No, gentlemen, there is no Boston to-day. There _was_ a Boston once.
Now, there is a North suburb to the city of Alexandria,--that is what
Boston is. [Laughter.] And you and I, fellow-subjects of the State of
Virginia--[Cries of 'no,' 'no.' 'Take that back again.']--I will take
it back when you show me the fact is not so.--Men and brothers,
(brothers, at any rate,) I am not a young man; I have heard hurrahs
and cheers for liberty many times; I have not seen a great many deeds
done for liberty. I ask you, are we to have deeds as well as words?
['Yes,' 'yes,' and loud cheers.]
"Now, brethren, you are brothers at any rate, whether citizens of
Massachusetts or subjects of Virginia--I am a minister--and,
fellow-citizens of Boston, there are two great laws in this country;
one of them is the LAW OF SLAVERY; that law is declared to be a
'finality.' Once the Constitution was formed 'to establish justice,
promote tranquillity, and secure the blessings of liberty to ourselves
and our posterity.' _Now_, the Constitution is not to secure liberty;
it is to extend slavery into Nebraska. And when slavery is established
there, in order to show what it is, there comes a sheriff from
Alexandria, to kidnap a man in the city of Boston, and he gets a Judge
of Probate, in the county of Suffolk, to issue a writ, and another
Boston man to execute that writ! [Cries of 'shame,' 'shame.']
"Slavery tramples on the Constitution; it treads down State Rights.
Where are the Rights of Massachusetts? A fugitive slave bill
Commissioner has got them all in his pocket. Where is the trial by
jury? Watson Freeman has it under his Marshal's staff. Where is the
great writ of personal replevin, which our fathers wrested, several
hundred years ago, from the tyrants who once lorded it over Great
Britain? Judge Sprague trod it under his feet! Where is the sacred
right of _habeas corpus_? Deputy Marshal Riley can crush it in his
hands, and Boston does not say any thing against it. Where are the
laws of Massachusetts forbidding State edifices to be used as prisons
for the incarceration of fugitives? They, too, are trampled underfoot.
'Slavery is a finality.'
"These men come from Virginia, to kidnap a man here. Once, this was
Boston; now, it is a Northern suburb of Alexandria. At first, when
they carried a fugitive slave from Boston, they thought it was a
difficult thing to do it. They had to get a Mayor to help them; they
had to put chains round the Court House; they had to call out the
'Sims Brigade'; it took nine days to do it. Now, they are so confident
that we are subjects of Virginia, that they do not even put chains
round the Court House; the police have nothing to do with it. I was
told to-day that one of the officers of the city said to twenty-eight
police-men, 'If any man in the employment of the city meddles in this
business, he will be discharged from service, without a hearing.'
[Great applause.] Well, gentlemen, how do you think they received
that declaration? They shouted, and hurrahed, and gave three cheers.
[Renewed applause.] My friend here would not have had the honor of
presiding over you to-night, if application had been made a little
sooner to the Mayor. Another gentleman told me that, when that man
(the Mayor) was asked to preside at this meeting, he said that he
regretted that all his time to-night was previously engaged. If he had
known it earlier, he said, he might have been able to make
arrangements to preside. When the man was arrested, he told the
Marshal he regretted it, and that his sympathies were wholly with the
slave. [Loud applause.] Fellow-citizens, remember that word. Hold your
Mayor to it, and let it be seen that he has got a background and a
foreground, which will authorize him to repeat that word in public,
and act it out in Faneuil Hall. I say, so confident are the slave
agents now, that they can carry off their slave in the daytime, that
they do not put chains round the Court House; they have got no
soldiers billeted in Faneuil Hall, as in 1851. They think they can
carry this man off to-morrow morning in a cab. [Voices--'They can't do
it.' 'Let's see them try.']
"I say, there are two great laws in this country. One is the slave
law. That is the law of the President of the United States; it is the
law of the Commissioner; it is the law of every Marshal, and of every
meanest ruffian whom the Marshal hires to execute his behests.
"There is another law, which my friend, Mr. Phillips, has described in
language such as I cannot equal, and therefore shall not try; I only
state it in its plainest terms. It is the Law of the People when they
are sure they are right and determined to go ahead. [Cheers and much
confusion.]
"Now, gentlemen, there was a Boston once, and you and I had
fathers--brave fathers; and mothers who stirred up those fathers to
manly deeds. Well, gentlemen, once it came to pass that the British
Parliament enacted a 'law'--_they_ called it law--issuing stamps here.
What did your fathers do on that occasion? They said, in the language
of Algernon Sydney, quoted in your resolutions, 'that which is not
just is not law, and that which is not law ought not to be
obeyed.'--[Cheers.] They did not obey the stamp act. They did not call
it law, and the man that did call it a law, here, eighty years ago,
would have had a very warm coat of tar and feathers on him. They
called it an 'act,' and they took the Commissioner who was here to
execute it, took him solemnly, manfully,--_they didn't hurt a hair of
his head_; they were non-resistants, of a very potent sort,
[Cheers,]--and made him take a solemn oath that he would not issue a
single stamp. He was brother-in-law of the Governor of the State, the
servant of a royal master, 'exceedingly respectable,' of great
wealth, and once very popular; but they took him, and made him swear
not to execute his commission; and he kept his oath, and the stamp act
went to its own place, and you know what that was. [Cheers.] That was
an instance of the people going behind a wicked law to enact Absolute
Justice into their statute, and making it Common Law. You know what
they did with the tea.
"Well, gentlemen, in the South there is a public opinion, it is a very
wicked public opinion, which is stronger than law. When a colored
seaman goes to Charleston from Boston, he is clapped instantly into
jail, and kept there until the vessel is ready to sail, and the Boston
merchant or master must pay the bill, and the Boston black man must
feel the smart. That is a wicked example, set by the State of South
Carolina. When Mr. Hoar, one of our most honored and respected
fellow-citizens, was sent to Charleston to test the legality of this
iniquitous law, the citizens of Charleston ordered him off the
premises, and he was glad to escape to save himself from further
outrage. There was no violence, no guns fired. That was an instance of
the strength of public opinion--of a most unjust and iniquitous public
opinion."
* * * * *
"Well, gentlemen, I say there is one law--slave law; it is everywhere.
There is another law, which also is a finality; and that law, it is in
your hands and your arms, and you can put it in execution, just when
you see fit.
"Gentlemen, I am a clergyman and a man of peace; I love peace. But
there is a means, and there is an end; Liberty is the end, and
sometimes peace is not the means towards it. [Applause.] Now, I want
to ask you what you are going to do. [A voice--'shoot, shoot.'] There
are ways of managing this matter without shooting anybody. Be sure
that these men who have kidnapped a man in Boston, are cowards, every
mother's son of them; and if we stand up there resolutely, and declare
that this man shall not go out of the city of Boston, _without
shooting a gun_--[cries of 'that's it,' and great applause,]--then he
won't go back. Now, I am going to propose that when you adjourn, it be
to meet at _Court Square, to-morrow morning at nine o'clock_. As many
as are in favor of that motion will raise their hands. [A large number
of hands were raised, but many voices cried out, 'Let's go to-night,'
'let's pay a visit to the slave-catchers at the Revere House,' etc.
'Put that question.'] Do you propose to go to the Revere House
to-night, then show your hands. [Some hands were held up.] It is not a
vote. We shall meet at _Court Square, at nine o'clock to-morrow
morning_."
* * * * *
On the following Sunday, May 28, in place of the usual Scripture
passages, I extemporized the following "Lesson for the Day," which on
Monday appeared in the newspapers:--
"Since last we came together, there has been a man stolen in the city
of our fathers. It is not the first; it may not be the last. He is now
in the great slave-pen in the city of Boston. He is there against the
law of the Commonwealth, which, if I am rightly informed, in such
cases prohibits the use of State edifices as United States jails."
"A man has been killed by violence. Some say he was killed by his own
coadjutors: I can easily believe it; there is evidence enough that
they were greatly frightened. They were not United States soldiers,
but volunteers from the streets of Boston, who, for their pay, went
into the Court House to assist in kidnapping a brother man. They were
so cowardly that they could not use the simple cutlasses they had in
their hands, but smote right and left, like ignorant and frightened
ruffians as they are. They may have slain their brother or not--I
cannot tell."
"Why is Boston in this confusion to-day? The fugitive slave bill
Commissioner has just now been sowing the wind, that we may reap the
whirlwind. The old fugitive slave bill Commissioner stands back; he
has gone to look after his 'personal popularity.' But when
Commissioner Curtis does not dare appear in this matter, another man
comes forward, and for the first time seeks to kidnap his man also in
the city of Boston."
"But he has sown the wind, and we are reaping the whirlwind. All this
confusion is his work. He knew he was stealing a Man born with the
same unalienable right to 'life, liberty, and the pursuit of
happiness,' as himself. He knew the slaveholders had no more right to
Anthony Burns than to his own daughter. He knew the consequences of
stealing a man. He knew that there are men in Boston who have not yet
conquered their prejudices--men who respect the Higher Law of God. He
knew there would be a meeting at Faneuil Hall, gatherings in the
streets. He knew there would be violence."
"Edward Greeley Loring, Judge of Probate for the County of Suffolk, in
the State of Massachusetts, fugitive slave bill Commissioner of the
United States, before these citizens of Boston, on Ascension Sunday,
assembled to worship God, I charge you with the death of that man who
was killed on last Friday night. He was your fellow-servant in
kidnapping. He dies at your hand. You fired the shot which makes his
wife a widow, his child an orphan. I charge you with the peril of
twelve men, arrested for murder, and on trial for their lives. I
charge you with filling the Court House with one hundred and
eighty-four hired ruffians of the United States, and alarming not only
this city for her liberties that are in peril, but stirring up the
whole Commonwealth of Massachusetts with indignation, which no man
knows how to stop--which no man can stop. You have done it all!"[221]
[Footnote 221: 2 Parker's Additional, 74, 75, 81, 83.]
June 4th, I preached "of the New Crime against Humanity," and said:--
"Wednesday, the 24th of May, the city was all calm and still. The poor
black man was at work with one of his own nation, earning an honest
livelihood. A Judge of Probate, Boston born and Boston bred, a man in
easy circumstances, a Professor in Harvard College, was sitting in his
office, and with a single spurt of his pen he dashes off the liberty
of a man--a citizen of Massachusetts. He kidnaps a man endowed by his
Creator with the unalienable right to life, liberty, and the pursuit
of happiness. He leaves the writ with the Marshal, and goes home to
his family, caresses his children, and enjoys his cigar. The frivolous
smoke curls round his frivolous head, and at length he lays him down
to sleep, and, I suppose, such dreams as haunt such heads. But when he
wakes next morn, all the winds of indignation, wrath, and honest
scorn, are let loose. Before night, they are blowing all over this
commonwealth--ay, before another night they have gone to the
Mississippi, and wherever the lightning messenger can tell the tale.
So have I read in an old mediæval legend that one summer afternoon,
there came up a 'shape, all hot from Tartarus,' from hell below, but
garmented and garbed to represent a civil-suited man, masked with
humanity. He walked quiet and decorous through Milan's stately
streets, and scattered from his hand an invisible dust. It touched the
walls; it lay on the streets; it ascended to the cross on the
minster's utmost top. It went down to the beggar's den. Peacefully he
walked through the streets, vanished and went home. But the next
morning, the pestilence was in Milan, and ere a week had sped half her
population were in their graves; and half the other half, crying that
hell was clutching at their hearts, fled from the reeking City of the
Plague!"
"I have studied the records of crime--it is a part of my ministry. I
do not find that any College Professor has ever been hanged for murder
in all the Anglo-Saxon family of men, till Harvard College had that
solitary shame. Is not that enough? Now she is the first to have a
Professor that kidnaps men. 'The Athens of America' furnished both!
"I can understand how a man commits a crime of passion, or
covetousness, or rage, nay, of revenge, or of ambition. But for a man
in Boston, with no passion, no covetousness, no rage, with no ambition
nor revenge, to steal a poor negro, to send him into bondage,--I
cannot comprehend the fact. I can understand the consciousness of a
lion, not a kidnapper's heart."
"But there is another court. The Empsons and the Dudleys have been
summoned there before: Jeffreys and Scroggs, the Kanes, and the
Curtises, and the Lorings, must one day travel the same unwelcome
road. Imagine the scene after man's mythological way. 'Edward, where
is thy brother, Anthony?' 'I know not; am I my brother's keeper,
Lord?' 'Edward, where is thy brother, Anthony?' 'Oh, Lord, he was
friendless, and so I smote him; he was poor, and I starved him of more
than life. He owned nothing but his African body. I took that away
from him, and gave it to another man!'
"Then listen to the voice of the Crucified--'Did I not tell thee, when
on earth, "Thou shalt love the Lord thy God with all thy understanding
and thy heart?"' 'But I thought thy kingdom was not of this world.'
"'Did I not tell thee that thou shouldst love thy neighbor as thyself?
Where is Anthony, thy brother? I was a stranger, and you sought my
life; naked, and you rent away my skin; in prison, and you delivered
me to the tormentors--fate far worse than death. Inasmuch as you did
it to Anthony Burns, you did it unto me.'"[222]
[Footnote 222: Parker's Additional, 167, 168, 169, 170, 171, 172.]
* * * * *
Gentlemen, I suppose the honorable Judge had the last three addresses
in his mind while concocting his charge to the Grand-Jury which
refused to find a bill. I infer this partly from what took place in
the room of the next Grand-Jury which found this indictment, and
partly also from another source which you will look at for a moment.
I preach on Sundays in the Music Hall, which is owned by a Corporation
who rent it to the 28th Congregational Society for their religious
meetings. Mr. Charles P. Curtis, father-in-law of the Hon. Judge
Curtis, and step-brother of Commissioner Loring, and a more distant
relation but intimate friend of George T. Curtis, was then president
of that Corporation, and one of its directors. At a meeting of the
corporation, held presently after the kidnapping of Mr. Burns, Mr.
Charles P. Curtis and his family endeavored to procure a vote of the
Corporation to instruct the directors "to terminate the lease of the
28th Congregational Society as soon as it can be legally done, and not
to renew it." Mr. Charles P. Curtis managed this matter clandestinely,
but not with his usual adroitness, for at the meeting he disclosed the
cause of his act,--that _Mr. Parker had called his brother a
murderer_, probably referring to the passage just read from the
"Lesson for the Day." But he took nothing by that motion.[223]
[Footnote 223: See the communications of Messrs. Chas. P. Curtis and
Thomas B. Curtis, in the Boston Daily Advertiser of June, 1854; and
the other articles setting forth the facts of the case.]
What influence this private and familistic disposition had in framing
the Judge's charge, I leave it for you and the People of America to
determine. You also can conjecture whether it had any effect on Mr.
Greenough, the other son-in-law of Mr. Charles P. Curtis, who refused
to return my salutation, and who, "by a miracle," was put on the new
Grand-Jury after the old one was discharged, and then was so "very
anxious to procure an indictment" against me. I leave all that with
you. You can easily appreciate the efforts made to silence not only my
Sunday preaching, but also the magnificent eloquence of Wendell
Phillips; yes, to choke all generous speech, in order that kidnappers
might pursue their vocation with none to molest or make them afraid.
But, Gentlemen, I fear you do not yet quite understand the arrogance
of our Southern masters, and the fear and hatred they bear towards all
who dare speak a word in behalf of the Rights of outraged Humanity.
The gag-law of Congress which silenced the House of Representatives
till John Quincy Adams, that noble son of a noble sire, burst through
the Southern chain; the violation of the United States mails to detect
"incendiary publications;" the torturing of men and women for an
opinion against Slavery--all these are notorious; but they and all
that I have yet stated of the action of the Federal Courts in the
fugitive slave bill cases, with the "opinions" of Northern Judges
already mentioned, do not fill up the cup of bitterness and poison
which is to be poured down our throats. Let me, therefore, here give
you one supplementary piece of evidence to prove how intensely the
South hates the Northern Freedom of Speech. I purposely select this
case from a period when Southern arrogance and Northern servility were
far less infamous than now.
About twenty years ago Mr. R.G. Williams of New York published this
sentence in a newspaper called the Emancipator,--"God commands and all
nature cries out, that man should not be held as property. The system
of making men property has plunged 2,250,000 of our fellow countrymen
into the deepest physical and moral degradation, and they are every
moment sinking deeper."
For this he was indicted by a Grand-Jury of the State of Alabama, and
the Governor of that State made a demand on the Executive of New York
insisting that Mr. Williams should be delivered up to take his trial
in Alabama--a State where he had never been! But the New York
Governor, after consulting with his law-advisers, did not come to the
conclusion that it was consistent with the public policy of New York
to "interfere actively" and promote Slavery in Alabama. _So he refused
to deliver up Mr. Williams!_[224]
[Footnote 224: Med Case, p. 25.]
Gentlemen of the Jury, before you can convict me of the crime charged,
you must ask three several sets of questions, and be satisfied of all
these things which I will now set forth.
I. THE QUESTION OF FACT. Did I do the deed charged, and obstruct
Marshal Freeman while in the peace of the United States, and
discharging his official duty? This is a quite complicated question.
Here are the several parts of it:--
1. Was there any illegal obstruction or opposition at all made to the
Marshal? This is not clear. True, an attack was made on the doors and
windows of the Court House, but that is not necessarily an attack on
the Marshal or his premises. He has a right in certain rooms of the
Court House, and this he has in virtue of a lease. He has also a right
to use the passage-ways of the house, in common with other persons and
the People in general. His rights as Tenant are subject to the terms
of his lease and to the law which determines the relation of Tenant
and Landlord. Marshal Freeman as tenant has no more rights than
Freeman Marshal, or John Doe, or Rachel Roe would have under the same
circumstances. Of course he had a legal right to defend himself if
attacked, and to close his own doors, bar and fortify the premises he
rented against the illegal violence of others. But neither his lease
nor the laws of the land authorized him to close the other doors, or
to obstruct the passages, no more than to obstruct the Square or the
Street. No lease, no law gave him that right.
Now there have been three secret examinations of witnesses relative to
this assault, before three Grand-Juries. No evidence has been offered
which shows _that any attack was made on the premises of the Marshal_.
The Supreme Court of Massachusetts was in session at the moment the
attack was made on the Court House; the venerable Chief Justice was on
the Bench; the jury had retired to consider the capital case then
pending, and were expected to return with their verdict. The People
had a right in the court-room, a right in the passage-ways and doors
which lead thither. That court had not ordered the room to be cleared
or the doors to be shut. Marshal Freeman closed the outer doors of the
Court House, and thus debarred men of their right to enter a
Massachusetts Court of Justice solemnly deciding a capital case. You
are to consider whether an attack on the outer doors of the Court
House, is an illegal attack on the Marshal who had shut those doors
without any legal authority. If you decide this point as the
government wishes, then you will proceed to the next question.
2. Did I actually obstruct him? If not, then the inquiry stops here.
You answer "not guilty." But if I did, then it is worth while to
consider how I obstructed him. (1.) Was it by a physical act, by
material force; or, (2.) by a metaphysical act, immaterial or
spiritual force--a word, thought, a feeling, a wish, approbation,
assent, consent, "evincing an express liking."
3. Was Marshal Freeman, at the time of the obstruction, in the peace
of the United States, or was he himself violating the law thereof? For
if he were violating the law and thereby injuring some other man, and
I obstructed him in that injury, then I am free from all legal guilt,
and did a citizen's duty in obstructing his illegal conduct. Now it
appears that he was kidnapping and stealing Anthony Burns for the
purpose of making him the slave of one Suttle of Virginia, who wished
to sell him and acquire money thereby; and that Mr. Freeman did this
at the instigation of Commissioner Loring who was entitled to receive
ten dollars if he enslaved Mr. Burns, and five only for setting him
free. It appears also that Marshal Freeman was to receive large,
official money for this kidnapping, and such honor as this
Administration, and the Hunker newspapers, and lower law divines can
bestow.
Now you are to consider whether a man so doing was in the peace of the
United States. He professes to have acted under the fugitive slave
bill which authorizes him to seize, kidnap, steal, imprison, and carry
off any person whatsoever, on the oath of any slaveholder who has
fortified himself with a piece of paper of a certain form and tenor
from any court of slaveholders in the slave States. Is that bill
Constitutional? The Constitution of the United States is the People's
Power of Attorney by which they authorize certain servants, called
Legislative, Judicial, and Executive officers, to do certain matters
and things in a certain way, but prohibit them from doing in the name
of the People, any thing except those things specified, or those in
any but the way pointed out. Does the fugitive slave bill attempt
those things and only those, in the way provided for in that Power of
Attorney; or other things, or in a different way?
To determine this compound question you will look (1.) at the ultimate
Purpose of the Constitution, the End which the People wanted to
attain; and (2.) at the provisional Means, the method by which they
proposed to reach it. Here of course the Purpose is more important
than the Means. The Preamble to this Power of Attorney clearly sets
forth this Purpose aimed at: here it is, "to form a more perfect
Union, establish Justice, insure domestic Tranquillity, provide for
the Common Defence, promote the General Welfare, and secure the
Blessings of Liberty." Is the fugitive slave bill a Measure tending to
that End?
To answer that question you are to consult your own mind and
conscience. You are not to take the opinion of the Court. For (1.) it
would probably be their purchased _official_ opinion which the
government pays for, and so is of no value whatever; or (2.) if it be
their _personal_ opinion, from what Mr. Sprague and Mr. Curtis have
said and done before, you know that their personal opinion in the
matter would be of no value whatsoever. To me it is very plain that
kidnapping a man in Boston and making him a slave, is not the way to
form a more perfect Union, establish Justice, insure domestic
Tranquillity, provide for the Common Defence, promote the General
Welfare, or secure the Blessings of Liberty. But you are to judge for
yourselves. If you think the fugitive slave bill not a Means towards
that End, which this national Power of Attorney proposes, then you
will think it is unconstitutional, that Mr. Freeman was not in the
peace of the United States, but acting against it; and then it was the
Right of every citizen to obstruct his illegal wickedness and might be
the Duty of some.
But not only does the fugitive slave bill contravene and oppose the
Purpose of the Constitution, it also transcends the Means which that
Power of Attorney declares the People's agents shall make use of, and
whereto it absolutely restricts them. The Constitution prescribes that
"the Judicial power shall be vested in one Supreme Court, and in such
inferior courts the Congress may ordain and establish." "The Judges
... shall hold their offices during good behavior, and shall ...
receive a compensation which shall not be diminished during their
continuance in office." Now the Commissioner who kidnaps a man and
declares him a slave, exercises _judicial power_. Commissioner Loring
himself confesses it, in his Remonstrance against being removed from
the office of Judge of Probate. You are to consider whether a
Commissioner appointed by the Judge of the Court as a ministerial
officer to take "bail and affidavits," and paid twice as much for
stealing a victim as for setting free a man, is either such a
"supreme" or such an "inferior court" as the Constitution vests the
"judicial powers" in. If not, then the fugitive slave bill is
unconstitutional because it does not use the Means which the People's
Power of Attorney points out. Of course the inquiry stops at this
point, and you return "not guilty."
4. It is claimed that the fugitive slave bill is sustained by this
clause in the Constitution, "No person held to service or labor in one
State, under the laws thereof, escaping into another, shall, in
consequence of any law or regulation therein, be discharged from such
service or labor, but shall be delivered up on claim of the party to
whom such service or labor may be due."[225] But if you try the
fugitive slave bill by this rule, you must settle two questions. (1.)
Who is meant by persons "held to service or labor?" and (2.) by whom
shall they "be delivered up on claim?" Let us begin with the first.
[Footnote 225: Art. iv. § 2, ¶ 2.]
(1.) Who are the persons "held to service or labor?" The preamble to
this People's Power of Attorney, sets forth the matters and things
which the People's agents are empowered to achieve. "They are to form
a more perfect Union, establish Justice, insure domestic Tranquillity,
provide for the common Defence, promote the General Welfare and secure
the Blessings of Liberty." Now the fugitive-from-labor clause must be
interpreted in part by the light of the Purpose of the Constitution.
So it would appear that this Power of Attorney, requires the delivery
of only such as are _justly_ "held to service or labor;" and only to
those men to whom this "service" is _justly_ "due." Surely, it would
be a monstrous act to deliver up to his master a person _unjustly_
"held to service or labor," or one justly held to those to whom his
service was not _justly_ due: it would be as bad to deliver up the
_wrong fugitive_, as to deliver the right fugitive to the _wrong
claimant_: it would be also monstrous to suppose that the People of
the United States, with the Declaration of Independence in their
memory, should empower their attorneys to deliver up a man _unjustly_
held to service or labor, and that too by the very instrument which
directs them to "establish Justice" and "secure the Blessings of
Liberty." Whatsoever interpretation was at the time put on the
Constitution, whatsoever the People thereby intended, two things are
plain--namely, (1.) that the language implies only such as are
_justly_ held to service, or labor, and (2.) that the People had no
moral right to deliver up any except such as were _justly_ held, and
had _unjustly_ escaped.
If the opposite interpretation be accepted, and that clause be taken
without restrictions, then see what will follow. South Carolina has
already made a law by which she imprisons all _colored_ citizens of
the free States who are found on her soil. Let us suppose she makes a
new law for reducing to perpetual slavery all the white citizens of
Massachusetts whom she finds on her soil; that a Boston vessel with
500 Boston men and women--sailing for California,--is wrecked on her
inhospitable coast, and those persons are all seized and reduced to
slavery; but some ten or twenty of the most resolute escape from the
"service or labor" to which they are held, and return to their
business in Boston. But their "owners" come in pursuit; the kidnapping
Commissioners, Curtis and Loring, with the help of the rest of the
family of men-stealers, arrest them under the fugitive slave bill. On
the mock trial, it is shown by the kidnapper that they were legally
"held to service or labor," and according to the constitution "shall
be delivered up;" that this enslavement is perfectly "legal" in South
Carolina; and the constitution says that no "law or regulation" of
Massachusetts shall set them free. They must go with Sims and Burns.
Gentlemen, you see where you are going, if you allow the Constitution
of parchment to override the Constitution of Justice.
(2.) By whom shall they "be delivered up?" Either by the Federal
Government, or else by the Government of the State into which they
have escaped. Now the Federal Government has no constitutional power,
except what the Constitution gives it. Gentlemen, there is not a line
in that Power of Attorney by which the People authorize the Federal
Government to make a man a slave in Massachusetts or anywhere else. I
know the Government has done it, as the British Government levied
ship-money, and put men to the rack, but it is against the
Constitution of the land.
Gentlemen, you will settle these constitutional questions according to
your conscience, not mine. But if the fugitive slave bill demands the
rendition of men from whom service is not _justly_ due--due by the Law
of God, or if the Government unconstitutionally aims to do what the
Constitution gave it no right to do--then the Marshal was not "in the
peace of the United States." Your inquiry stops at this point.
5. But, if satisfied on all which relates to this question of his
being in the peace of the United States, you are next to inquire if
Mr. Freeman, at the time of the obstruction was "Marshal of the United
States," and "in the due and lawful discharge of his duties as such
officer." There is no doubt that he was Marshal; but there may be a
doubt that he was in the "lawful discharge of his duties as such
officer." Omitting what I first said, (I. 1.) see what you must
determine in order to make this clear.
(1.) Was Commissioner Loring, who issued the warrant to kidnap Mr.
Burns, legally qualified to do that act. Gentlemen, there is no record
of his appointment and qualification by the form of an oath. No
evidence has been adduced to this point. Mr. Loring says he was duly
appointed and qualified. There is no written line, no other word of
mouth to prove it.
(2.) Admitting that Mr. Loring had the legal authority to command Mr.
Freeman to steal Mr. Burns, it appears that stealing was done
feloniously. The Marshal's guard seized him on the charge of
Burglary--a false charge. You are to consider whether Mr. Freeman had
legally taken possession of his victim.
(3.) If satisfied thus far, you are to inquire if he held him legally.
It seems he was imprisoned in a public building of Massachusetts,
which was by him used as a jail for the purpose of keeping a man
claimed as a fugitive slave, contrary to the express words of a
regular and constitutional statute of Massachusetts.
If you find that Mr. Freeman was not in the lawful discharge of his
duties as Marshal, then the inquiry stops here, and you return a
verdict of "not guilty."
But if you are convinced that an obstruction was made against a
Marshal in the peace of the United States, and in the legal discharge
of a legal, constitutional duty, then you settle the question of Fact
against me, and proceed to the next point.
II. _The Question of Law._
1. Is there a law of the United States punishing this deed of mine?
The answer will depend partly on the kind of opposition or obstruction
which I made. If you find (1.) that I obstructed him, while in the
legal discharge of his legal duties, with physical force, violence,
then there is a law, clear and unmistakable, forbidding and punishing
that offence. But if you find (2.) that I obstructed him with only
metaphysical force,--"words," "thoughts," "feelings," "wishes,"
"consent," "assent," "evincing an express liking," "or approbation,"
then it may be doubtful to you whether the law of 1790, or any other
law of the United States forbids that.
2. But if you find there is such a law, punishing such metaphysical
resistance--and the court by the charge to the Grand-Jury seems
plainly of that opinion, which is fortified by the authority of Chief
Justice Kelyng and Judge Chase, two impeached judges--then you will
consider whether that law is constitutional. And here you will look at
two things, (1.) The Purpose of the Constitution already set forth;
and (2.) at the Means provided for by that Power of Attorney. For if
the agents of the People--legislative, judiciary, or executive--have
exceeded their delegated authority, then their act is invalid and
binding on no man. If I, in writing, authorize my special agent to
sell my Ink-stand for a dollar, I am bound by his act in obedience
thereto. But if on that warrant he sells my Writing-Desk for that sum,
I am not bound by his unauthorized act. Now I think there will be
grave doubts, whether any law, which with fine and imprisonment
punishes such words, thoughts, feelings, consent, assent, "express
liking," approbation, is warranted by the People's Power of Attorney
to their agents. The opinion of the Court on such a matter, Gentlemen,
I think is worth as much as Bacon's opinion in favor of the rack; or
Jones's opinion that Charles I. had the right to imprison members of
Parliament for words spoken in the Commons' Debate; or the opinion of
the ten judges that Ship-money was lawful; or of the two chief
justices that the Seven Bishops' Petition to James II. was high
treason; or Thurlow's opinion that a jury is the natural enemy of the
King. Gentlemen, I think it is worth nothing at all. But if you think
otherwise, you have still to ask:--
3. Is this law just? That is does it coincide with the Law of God, the
Constitution of the Universe? There your own conscience must decide.
Mr. Curtis has told you there is no Morality but Legality, no standard
of Right and Wrong but the Statute, your only light comes from this
printed page, "Statutes of the United States," and through these
sheepskin covers. Gentlemen, if your conscience is also bound in
sheepskin you will think as these Honorable Judges, and recognize only
Judge Curtis's "Standard of Morality,"--no Higher Law. But even if you
thus dispose of the Question of Law, there will yet remain the last
part of your function.
III. _The Question of the Application of the Law to the Fact._ To
determine this Question you are to ask:--
1. Does the law itself, the act of 1790, apply to such acts, that is,
to such words, thoughts, wishes, feelings, consent, assent,
approbation, express liking, and punish them with fine and
imprisonment? If not, the consideration ends: but if it does, you will
next ask:--
2. Is it according to the Constitution of the United States--its
Purpose, its Means--thus to punish such acts? If not satisfied
thereof, you stop there; but if you accept Judge Curtis's opinion then
you will next inquire:--
3. Is it expedient in this particular case to apply this law, under
the circumstances, to this man, and punish him with fine and
imprisonment? If you say "yes" you will then proceed to the last part
of the whole investigation, and will ask:--
4. Is it just and right; that is according to the Natural Law of God,
the Constitution of the Universe? Here you will consider several
things.
(1.) What was the Marshal legally, constitutionally, and justly doing
at the time he was obstructed? He was stealing, kidnapping, and
detaining an innocent man, Anthony Burns, with the intention of
depriving him of what the Declaration of Independence calls his
natural and unalienable Right to liberty and the pursuit of happiness.
Mr. Burns had done no wrong or injury to any one--but simply came to
Massachusetts, to possess and enjoy these natural rights. Marshal
Freeman had seized him on the false charge of burglary, had chained
him in a dungeon contrary to Massachusetts law,--there were irons on
his hands.
It is said he was a slave: now a slave is a person whom some one has
stolen from himself, and by force keeps from his natural rights. Mr.
Burns sought to rescue himself from the thieves who held him; Marshal
Freeman took the thieves' part.
(2.) Was there any effectual mode of securing to Mr. Burns his natural
and unalienable Right except the mode of forcible rescue? Gentlemen of
the Jury, it is very clear there was none at all. The laws of
Massachusetts were of no avail. Your own Supreme Court, which in 1832,
at the instigation of Mr. Charles P. Curtis, sent a little boy not
fourteen years old into Cuban Slavery to gratify a slave-hunting West
Indian, in 1851, had voluntarily put its neck under the Southern
chain. Your Chief Justice, who acquired such honorable distinction in
1836 by setting free the little girl Med from the hands of the
Curtises, in 1851 spit in the face of Massachusetts, and spurned her
laws with his judicial foot. It was plain that Commissioner Loring did
not design to allow his victim a fair trial--for he had already
prejudged the case; he advised Mr. Phillips "to make no defence, put
no 'obstruction' in the way of the man's going back, as he probably
will," and, before hearing the defence sought to settle the matter by
a sale of Mr. Burns.
Gentlemen, the result showed there was no chance of what the United
States law reckons justice being done in the case--for Commissioner
Loring not only decided the fate of Mr. Burns against law, and against
evidence, but communicated his decision to the slave-hunters nearly
twenty-four hours before he announced it in open court! No, Gentlemen,
when a man claimed as a fugitive is brought before either of these two
members of this family of kidnappers--who run now in couples, hunting
men and seeking whom they may devour--there is no hope for him: it is
only a mock-trial, worse than the Star-chamber inquisition of the
Stuart kings. Place no "obstructions in the way of the man's going
back," said the mildest of the two, "as he probably will." Over that
door, historic and actual, as over that other, but fabulous, gate of
Hell should be written:--
"Through me they go to the city of sorrow;
Through me they go to endless agony;
Through me they go among the nations lost:
Leave every hope, all ye that enter here!"
The only hope of freedom for Mr. Burns lay in the limbs of the People!
Anarchy afforded him the only chance of Justice.
(3.) Did they who it is alleged made the attack on the Marshal, or
they who it is said instigated them to the attack, do it from any
wicked, unjust, or selfish motive? Nobody pretends it--Gentlemen, we
had much to lose--ease, honor--for with many persons in Boston it is a
disgrace to favor the unalienable Rights of man, as at Rome to read
the Bible, or at Damascus to be a Christian--ease, honor, money,
liberty--if this Court have its way,--nay, life itself; for one of the
family which preserves the Union by kidnapping men, counts it a
capital crime to rescue a victim from their hands, and Mr. Hallett,
when only a democratic expectant of office, declared "if it only
resists law and obstructs its officers ... it is treason ... and he
who risks it must risk hanging for it." No, Gentlemen, I had much to
lose by my words. I had nothing to gain. Nothing I mean but the
satisfaction of doing my duty to Myself, my Brother, and my God. And
tried by Judge Sprague's precept, "Obey both," that is nothing; or by
Judge Curtis's "Standard of Morality" it is a crime; and according to
his brother it is "Treason;" and according to, I know not how many
ministers of commerce, it is "infidelity"--"treasonable, damnable
doctrine."
No, Gentlemen, no selfish motive could move me to such conduct. The
voice of Duty was terribly clear: "Inasmuch as ye have done it unto
the least of these my brethren, ye have done it unto me."
Put all these things together, Gentlemen. Remember there is a duty of
the strong to help the weak: that all men have a common interest in
the common duty to keep the Eternal Law of Justice; remember we are
all of us to appear one day before the Court which is of purer eyes
than to love iniquity. Ask what says Conscience--what says God. Then
decide as you must decide.
The eyes of the nation are upon you. The Judges of this Honorable
Court hold their office in Petty Serjeantry on condition of wresting
the Laws and Constitution to the support of the fugitive slave bill,
and of preventing, as far as possible, all noble thought which opposes
the establishment of Despotism, now so rapidly encroaching upon our
once Free Soil: they hold by this Petty Serjeantry--a menial service
not mentioned in any book even of "Jocular Tenures."
If you could find me guilty--it is not possible, only conceivable with
a contradiction,--you would delight the Slave Power--Atchison,
Cushing, Stringfellow, and their Northern and Southern crew--for to
them I seem identified with New England Freedom of Speech. "Aha," they
will neigh and snicker out, "Judge Curtis has got the North under his
feet! Mr. Webster knew what he was about when putting him in place!"
English is the only tongue in which Freedom can speak her political or
religious word. Shall that tongue be silenced; tied in Faneuil Hall;
torn out by a Slave-hunter? The Stamp Act only taxed commercial and
legal documents; the fugitive slave bill makes our words misdemeanors.
The Revenue Act did but lay a tax on tea, three-pence only on a pound:
the Slave-hunters' act taxes our thoughts as a crime. The Boston Port
Bill but closed our harbor, we could get in at Salem; but the Judge's
Charge shuts up the mouth of all New England, not a word against
man-hunting but is a "crime,"--the New Testament is full of
"misdemeanors." Andros only took away the Charter of Massachusetts;
Judge Curtis's "law" is a _quo warranto_ against Humanity itself.
"Perfidious General Gage" took away the arms of Boston; Judge Curtis
_charges_ upon our Soul; he would wring all religion out of you,--no
"Standard of Morality" above the fugitive slave bill; you must not,
even to God in your prayers, evince "an express liking" for the
deliverance of an innocent man whom his family seek to transform to a
beast of burthen and then sacrifice to the American Moloch.
Decide according to your own Conscience, Gentlemen, not after mine.
* * * * *
Gentlemen of the Jury, I must bring this defence to a close. Already
it is too long for your patience, though far too short for the mighty
interest at stake, for it is the Freedom of a Nation which you are to
decide upon. I have shown you the aim and purposes of the Slave
Power--to make this vast Continent one huge Despotism, a House of
Bondage for African Americans, a House of Bondage also for Saxon
Americans. I have pointed out the course of Despotism in Monarchic
England; you have seen how there the Tyrants directly made wicked
laws, or when that resource failed, how they reached indirectly after
their End, and appointed officers to pervert the law, to ruin the
people. You remember how the King appointed base men as Attorneys and
Judges, and how wickedly they used their position and their power,
scorning alike the law of God and the welfare of Man. "The Judges in
their itinerant Circuits," says an old historian,[226] "the more to
enslave the people to obedience, being to speak of the king, would
give him sacred titles as if their advancement to high places must
necessarily be laid upon the foundation of the People's debasement."
You have not forgotten Saunders, Kelyng, and Jeffreys and Scroggs;
Sibthorpe and Mainwaring you will remember for ever,--denouncing
"eternal damnation" on such as refused the illegal tax of Charles I.
or evinced an express disapprobation of his tyranny.
[Footnote 226: In 2 Kennett, 753.]
Gentlemen, you recollect how the rights of the jury were broken
down,--how jurors were threatened with trial for perjury, insulted,
fined, and imprisoned, because they would be faithful to the Law and
their Conscience. You remember how the tyrannical king clutched at the
People's purse and their person too, and smote at all freedom of
speech, while the purchased Judges were always ready, the tools of
Despotism. But you know what it all came to--Justice could not enter
upon the law through the doors of Westminster Hall; so she tried it at
Naseby and Worcester and with her "Invincible Ironsides" took
possession by means of pike and gun. Charles I. laid his guilty head
on the block; James II. only escaped the same fate by timely flight.
If Courts will not decree Justice, then Civil War will, for it must be
done, and a battle becomes a "Crowning Mercy."
Gentlemen, I have shown you what the Slave Power of America aims
at,--a Despotism which is worse for this age than the Stuarts' tyranny
for that time. You see its successive steps of encroachment. Behold
what it has done within ten years. It has made Slavery perpetual in
Florida; has annexed Texas, a Slave State as big as the kingdom of
France; has fought the Mexican War, with Northern money, and spread
bondage over Utah, New Mexico, and California; it has given Texas ten
millions of Northern dollars to help Slavery withal; it has passed the
fugitive slave bill and kidnapped men in the West, in the Middle
States, and even in our own New England; it has given ten millions of
dollars for a little strip of worthless land, the Mesilla valley,
whereon to make a Slave Railroad and carry bondage from the Atlantic
to the Pacific; it has repealed the Prohibition of Slavery, and spread
the mildew of the South all over Kansas and Nebraska. Ask your
capitalists, who have bought Missouri lands and railroads, how their
stock looks just now; not only your Liberty but even their Money is in
peril. You know the boast of Mr. Toombs. Gentlemen, you know what the
United States Courts have done--with poisoned weapons they have struck
deadly blows at Freedom. You know Sharkey and Grier and Kane. You
recollect the conduct of Kidnappers' Courts at Milwaukie, Sandusky,
Cincinnati, Philadelphia--in the Hall of Independence. But why need I
wander so far? Alas! you know too well what has been done in Boston,
our own Boston, the grave of Puritan piety. You remember the Union
Meeting, Ellen Craft, Sims, chains around the Court House, the Judges
crawling under, soldiers in the street, drunk, smiting at the
citizens; you do not forget Anthony Burns, the Marshal's guard, the
loaded cannon in place of Justice, soldiers again in the streets
smiting at and wounding the citizens. You recollect all this--the 19th
of April, 1851, Boston delivering an innocent man at Savannah to be a
slave for ever, and that day scourged in his jail while the hirelings
who enthralled him were feasted at their Inn;--Anniversary week last
year--a Boston Judge of Probate, the appointed guardian of orphans,
kidnapping a poor and friendless man! You cannot forget these things,
no, never!
You know who did all this: a single family--the Honorable Judge
Curtis, with his kinsfolk and friends, himself most subtly active with
all his force throughout this work. When Mr. Webster prostituted
himself to the Slave Power this family went out and pimped for him in
the streets; they paraded in the newspapers, at the Revere House, and
in public letters; they beckoned and made signs at Faneuil Hall. That
crime of Sodom brought Daniel Webster to his grave at Marshfield, a
mighty warning not to despise the Law of the Infinite God; but that
sin of Gomorrah, it put the Hon. Benj. R. Curtis on this Bench; gave
him his judicial power to construct his "law," construct his "jury,"
to indict and try me. Try me! No, Gentlemen, it is you, your wives and
your children, who are up for swift condemnation this day. Will you
wait, will you add sin to sin, till God shall rain fire and brimstone
on your heads, and a Dead Sea shall cover the place once so green and
blossoming with American Liberty? Decide your own fate. When the
Judges are false let the Juries be faithful, and we have "a crowning
mercy" without cannon, and the cause of Justice is secure. For "when
wicked men seem nearest to their hopes, the godly man is furthest from
his fears."
You know my "offence," Gentlemen. I have confessed more than the
government could prove. You are the "Country:" the Nation by twelve
Delegates is present here to-day. In the name of America, of mankind,
you are to judge of the Law, the Fact, and the Application of the Law
to the Fact. You are to decide whether you will spread Slavery and the
Consequences of Slavery all over the North; whether Boston, New
England, all the North, shall kidnap other Ellen Crafts, other Thomas
Sims, other Anthony Burns,--whether Sharkey and Grier, and Kane and
Curtis, shall be Tyrants over you--forbidding all Freedom of Speech:
or whether Right and Justice, the Christian Religion, the natural
service of the Infinite God shall bless our wide land with the
numberless Beatitudes of Humanity. Should you command me to be fined
and go to jail, I should take it very cheerfully, counting it more
honor to be inside of a jail in the austere silence of my dungeon,
rather than outside of it, with a faithless Jury, guilty of such
treason to their Country and their God. But, forgive me! you cannot
commit such a crime against Humanity. Pardon the monstrous figure of
my speech,--it is only conceivable, not also possible. These Judges
could do it--their speeches, their actions, that Charge, this
Indictment, proves all that--but you cannot;--not you. You are the
Representatives of the People, the Country, not idiotic in Conscience
and the Affections.
Gentlemen, I am a minister of Religion. It is my function to teach
what is absolutely true and absolutely right. I am the servant of no
sect,--how old soever, venerable and widely spread. I claim the same
religious Rights with Luther and Calvin, with Budha and Mohammed; yes,
with Moses and Jesus,--the unalienable Right to serve the God of
Nature in my own way. I preach the Religion which belongs to Human
Nature, as I understand it, which the Infinite God imperishably writes
thereon,--Natural Piety, love of the infinitely perfect God, Natural
Morality, the keeping of every law He has written on the body and in
the soul of man, especially by loving and serving his creatures. Many
wrong things I doubtless do, for which I must ask the forgiveness of
mankind. But do you suppose I can keep the fugitive slave bill, obey
these Judges, and kidnap my own Parishioners? It is no part of my
"Christianity" to "send the mother that bore me into eternal bondage."
Do you think I can suffer Commissioner Curtis and Commissioner Loring
to steal my friends,--out of my meeting-house? Gentlemen, when God
bids me do right and this Court bids me do wrong, I shall not pretend
to "obey both." I am willing enough to suffer all that you will ever
lay on me. But I will not do such a wrong, nor allow such wickedness
to be done--so help me God! How could I teach Truth, Justice, Piety,
if I stole men; if I allowed Saunders, Jeffreys, Scroggs, or Sharkey,
Grier, Kane, or in one word, Curtis, to steal them? I love my Country,
my kindred of Humanity; I love my God, Father and Mother of the white
man and the black; and am I to suffer the Liberty of America to be
trod under the hoof of Slaveholders, Slave-drivers; yes, of the
judicial slaves of slaveholders' slave-drivers? I was neither born nor
bred for that. I drew my first breath in a little town not far off, a
poor little town where the farmers and mechanics first unsheathed that
Revolutionary sword which, after eight years of hewing, clove asunder
the Gordian knot that bound America to the British yoke. One raw
morning in spring--it will be eighty years the 19th of this
month--Hancock and Adams, the Moses and Aaron of that Great
Deliverance, were both at Lexington; they also had "obstructed an
officer" with brave words. British soldiers, a thousand strong, came
to seize them and carry them over sea for trial, and so nip the bud of
Freedom auspiciously opening in that early spring. The town militia
came together before daylight "for training." A great, tall man, with
a large head and a high, wide brow, their Captain,--one who "had seen
service,"--marshalled them into line, numbering but seventy, and bad
"every man load his piece with powder and ball." "I will order the
first man shot that runs away," said he, when some faltered; "Don't
fire unless fired upon, but if they want to have a war,--let it begin
here." Gentlemen, you know what followed: those farmers and mechanics
"fired the shot heard round the world." A little monument covers the
bones of such as before had pledged their fortune and their sacred
honor to the Freedom of America, and that day gave it also their
lives. I was born in that little town, and bred up amid the memories
of that day. When a boy my mother lifted me up, one Sunday, in her
religious, patriotic arms, and held me while I read the first
monumental line I ever saw:--
"SACRED TO LIBERTY AND THE RIGHTS OF MANKIND."
Since then I have studied the memorial marbles of Greece and Rome in
many an ancient town; nay, on Egyptian Obelisks have read what was
written before the Eternal roused up Moses to lead Israel out of
Egypt, but no chiselled stone has ever stirred me to such emotions as
those rustic names of men who fell
"IN THE SACRED CAUSE OF GOD AND THEIR COUNTRY."
Gentlemen, the Spirit of Liberty, the Love of Justice, was early
fanned into a flame in my boyish heart. That monument covers the bones
of my own kinsfolk; it was their blood which reddened the long, green
grass at Lexington. It is my own name which stands chiselled on that
stone; the tall Captain who marshalled his fellow farmers and
mechanics into stern array and spoke such brave and dangerous words as
opened the War of American Independence,--the last to leave the
field,--was my father's father. I learned to read out of his Bible,
and with a musket he that day captured from the foe, I learned also
another religious lesson, that
"REBELLION TO TYRANTS IS OBEDIENCE TO GOD."
I keep them both, "Sacred to Liberty and the Rights of Mankind," to
use them both "In the Sacred Cause of God and my Country."
Gentlemen of the Jury, and you my fellow-countrymen of the North, I
leave the matter with you. Say "Guilty!" You cannot do it. "Not
Guilty." I know you will, for you remember there is another Court, not
of fugitive slave bill law, where we shall all be tried by the Justice
of the Infinite God. Hearken to the last verdict, "INASMUCH AS YE HAVE
DONE IT UNTO ONE OF THE LEAST OF THESE MY BRETHREN, YE HAVE DONE IT
UNTO ME."
END.
ERRATA.
Page 19, line 16 from top, instead of _rest_, read _government_.
" 23 " 10 " " " " 1618, read 1215.
" 76 " 2 " " " " _Aoncilia_, read _Ancilia_.
" 78 " 3 " bottom, " " _not_, read _or_.
" 84 " 11 " " " " _promoting_, read _perverting_.
" 89 " 18 " " omit _his_, before _vengeance_.
OTHER WORKS BY THE SAME AUTHOR.
A DISCOURSE OF MATTERS PERTAINING TO RELIGION. 1 Vol. 12mo.
New Edition will appear in December. $1.25
AN INTRODUCTION TO THE OLD TESTAMENT. From the German of De
Wette. 2d edition. 2 Vols. 8vo. 3.75
CRITICAL AND MISCELLANEOUS WRITINGS. 1 Vol. 12mo. New Edition
will soon appear. 1.25
OCCASIONAL SERMONS AND SPEECHES. 2 Vols. 12mo. 2.50
TEN SERMONS OF RELIGION. 1 Vol. 12mo. 1.00
SERMONS OF THEISM, ATHEISM, AND THE POPULAR THEOLOGY. 1 Vol.
12mo. 1.25
ADDITIONAL SERMONS AND SPEECHES. 2 Vols. 12mo. 2.50
PAMPHLETS.
TWO SERMONS ON LEAVING THE OLD AND ENTERING THE NEW PLACE
OF WORSHIP. (1852.) 20
DISCOURSE OF DANIEL WEBSTER. (1853.) Cloth. 50
A SERMON OF OLD AGE. (1854.) 15
THE NEW CRIME AGAINST HUMANITY. (1854.) 20
THE LAWS OF GOD AND THE STATUTES OF MAN. (1854.) 15
THE DANGERS WHICH THREATEN THE RIGHTS OF MAN IN AMERICA. (1854.) 20
THE MORAL DANGERS INCIDENT TO PROSPERITY. (1855.) 15
CONSEQUENCES OF AN IMMORAL PRINCIPLE. (1855.) 15
FUNCTION OF A MINISTER. (1855.) 20
TWO SERMONS IN PROCEEDINGS OF PROGRESSIVE FRIENDS. (1855.) 15
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