iljijlii||il!illjl||l!li|i!l|!liil^ U-- THE TRIAL THEODOIIE PAllKER, "MISDEMEANOR" OF % ^]fjtt\} u\ litnniil gall against Jiiiiiiapping, BEFORE THE CIRCUIT COURT OF THE UNITED STATES, AT BOSTON, APRIL 3, 1855 THE DEFENCE, THEODORE PARKER, // MINISTER OF THE TWENTY-EIGHTH COKGEEGATIOXAL SOCIETY IN BOSTON. BOSTON : rUBLISIIED FOR THE AUTHOR 1855. Entered according to Act of Congress, in the year 1855, by THEODORE PARKER, la the Clerk's Office of the District Court of the District of Massachusetts. CAMBRIDGE: AIJ.KS AND FAKNIIAM, miNTERS. TO JOHN PARKER HALE • AND CHARLES MAYO ELLIS, MAGNANIMOUS LAWYERS, FOR THEIR LABORS IN A KOBLE PROFESSION, WHICH HAVING ONCE IN ENGLAND ITS KELTNG, ITS SAUNDERS, ITS JEFFREYS, AND ITS SCROGGS, AS NOW IN AMERICA ITS SIIARKET, ITS GRIER, ITS CURTIS, AND ITS KANE, HAS TEl* 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 VOLUJIE IS DEDICATED, BY THEIR CLIENT AND FRIEND, THEODORE PARKER. PREFACE. TO THE PEOPLE OF THE FEEE 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 ques- tion 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 JuJy.^ 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 ^ 2 Parker's Additional Speeches, 178-283. a* vi PREFACE. 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 indict- ment by another grand-jury summoned for that purpose. It need not be supposed that I was wholly ignorant of their doings from day to dav. 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. After my arraignment I made elaborate preparation for my de- fence. 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 v/ell 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 argu- ment. 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 Pro- metJH'U?, chained up in a silk gown because they had brought to earth fin; from Ihi- (piarter opposite to Heaven — and listen to Mr. Hale, and Mr. Phillips aild 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 com- munity then getting indignant at the outrages of the Slave Power. I rj«-v»T thought the case wonld come to tli(; jury. I looked over the indU'tmrrit, and !<» my unlearned vyv. it s(>emed so looped and win- dowed with hrrachcs that, a skilfid lawyer might drive a cart and ■ix oxen through it in various direclioni*; and so the Court might ea»«ily quaHh the indictment and leave all tlu- blame of the failure on PREFACE. Vll 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 accord- ingly. 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 fur- nish 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 de- cision of the case: but my brief was not for the printer, and as many viii PREFACE. duties occurred at that time, it was not till now, in a little vacation from severer toils, that I have found leisure to w^rite 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-, 24^A Auc/iu^t, 1855. INTRODUCTION. On Tuesday, the 23d of May, 1854, Charles F. Suttle of Virginia, presented to Edward Greeley Loring, Esquire, of Boston, Commis- sioner, a complaint under the fugitive slave bill — Act of Septem- ber ISth, 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 Commis- sioner proceeded to hear and decide the case in the Circuit Court room, in which were stationed about sixty men serving as the Mar- shal'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 wit- ness 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 con- X INTRODUCTION. ference 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 Commirisioner 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 char- acter 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 meet- ing 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 arc well known. Mr. Burns was taken away to Slavery on Friday, June 2d, by an armed body of soldiers with a cannon. Tli«- May 'J'lTiii of tlie (!irc.uit Court at Boston began on the l!)[\\ of tliaf month, and llic (Jrand-Jury for that term had already been Kurninonrd. Here is Ijic list: — INTRODUCTION. XI United States Cikcuit 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 Angicr, u 4 Ballard Lovcjoy, (( 5 Levi Eldridge, Chatham. 6 Isaac B. Young, (( 7 Josiah Peterson, Duxbury. 8 James Curtis, (( 9 Not Sworn . William Amory, Boston, Excused first day. ber of the bar. 10 f Sworn. James P. Bush, u Absent June 28th. 11 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 Com- missioner. 5th. And the Jurors aforesaid on their oath aforesaid, do further present that one Thcfjdon; 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 Ma.Hs.'u:huHett9, 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 Frocnian also tlicn and there being an officer of the said United States, to wit, Marslia! of tlio United States, for the said District of IMassachusetts, and then and then- ftNo l)cing in the due and lawful discharge of his duties as such officer. And so the jurorM aforesaid, on tliiir oath afurcsaid, do say and present that the said Theodore Parker, at Boston aforesaid, on the said twenty-sixth day of said May, with force and INTRODUCTION'. XVU arms assaulted the said Freeman as such odicer, aud 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 appre- hended in said District of ^lassaehusetts, after committing the aforesaid oflencc, 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. IIALLETT, United States Attorney for the District of Massaclusetis. Similar indictments were found against Mr. Phillips, Mr. Stow- ell, Rev. T. "VV. 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 govern- ment, Hon. Benjamin F. Hallett, District Attorney, and Elias INler- win, 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 dis- cuss some particular positions on behalf of them all. This was XVlll INTRODUCTION. assented to; and motions, of which the following is a copy, were filed in the several cases : — Circuit Court of the Uxited 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 frac- tion 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 em- bracing 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 tliat the same were found by a grand-jury, because the eecoiid 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 mysterj' of the person therein charged. " Because said indictment and tlie counts thereof are repugnant and inconsistent, the Banic bfiiig Inscid on an alleged obstruction, resistance, and opposition to the service of an acllon, order, or warrant, which is therein averred to have been already served, cxfciitid, and rcturncfl. " BecnuHc the first and lillh counts are double. ♦« Because the alleged order of May 25th, referred to therein, was a void and illegal, order. " I{»'.<'aiiHc, if the; alicgi'd warrant was served as Ihercin alleged, said Watson Free- man did not, and l>y law could not thereafter, hold the person described therein, under any jiroccKH or order. " And because the .same do not set forth and allege fully and specifically the acts INTRODUCTION. XIX charged to be offences against tlic statute, so as to inform said party cliarged, of the nature and cause of the accusation. " 6. Because the warrant sot 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, uncer- tain, 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 " tech- nical;" 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 XX INTRODUCTION. 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. ]\Ir. Hallett accordingly entered a nolle prosequi in all the other cases, and the whole affair was quashed.^ ^ See Law Reporter for June, 1855. DEFENCE. May it please the Couet: 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 ques- tion of this magnitude will ever twice be brought before the same jurymen. Opportunities to extend a far-reaching and ghastly wicked- ness, 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 convic- tion 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 pre- tended 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 1 2 PRELIMINARY. 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-evi- dent " 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 Vil- lanies," against a national crime so great, that it made freethinking Mr. Jefferson, with all his " French Lifidelity," " 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 I 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 Bos- ton 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 wdth politics and there was no Law of God above the fugitive slave bill! Such are the acts charged. Gentlemen of the Jury, you are sum- moned here to declare them a Crime, and then to punish me for this " ofi'encc I " 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. Hallrtt, — arc 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 per- sonally it is of very small consequence what your verdict shall be. The fine is nothing; the imprisonment for twelve months — Gentle- men,^! laugh at it I 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 Hiire to HufTrr Iohh — at least shame. I do not mean the Court will ever feel rernorHc, or ev(Mi shame, for this conduct; I am no young man now, I know th(!He men, — but the People are sure to burn the PRELIMINARY. 3 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 w^ord 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 asun- der 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 advis- ers, 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 there- with, 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 I 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 na- tions sitting in darkness, yet waiting for the consolation. May such 4 FORMER VISITS TO THE COURT HOUSE. Truth and Justice enable me also, to speak a testimony unto the Gentiles ; He who chose the weak things, to bring to nought the mio^hty, 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 patri- cian 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 fugi- tive 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 unalien- able rights of a black man fallen among a family of thieves. I went to the court house. Outside it was belted with chains. In des- potic Europe 1 hud seen no such spectacle, save once when the dull tyrant who op|)ressed Bavaria with his licentious flesh, in 1844 put his capital in a brief state of siege and chained the streets. The odlcial servant of the kidnapper, club in hand, a policeman of this city, goaded to his task by Mayor Bigelow and Marshal Tukey, — rricn congcnitaily mingled in such appropriate work, — bade me " Get under the chain." I pressed it down and went over. The Judges of our own Su|)reme Court, tlwij ivcnt under, — had gone out and in, l)»,-ncatii tin; ciiainl How ])0('try mingles with facti The chain was a syniltol, and until this day rcmaineth the same chain, uritakr-n away in the reading of the fugitive slave bill; and when the hiw of Massiu luisctts is read, the chain is also upon the neck of that court I Within the court house was full of armed men. I found Mr. Sims in a private room, illrgally, in deiiance of Massachusetts law, converted into a jail to hold men charged with no crime. Ruf- iiuns mounted guard at the entrance, armed with swords, fire-arms, FORMER VISITS TO THE COURT HOUSE. O 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 consola- tion Religion could otter 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, Meshech, 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 unconquer- able strensjth. 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 inno- cent 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 appe- tites 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 mar- shal, 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 1* 6 FORMER VISITS TO THE COURT HOUSE. me [Charles jNI. 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 warn- ing. I sat between men who had newly sworn to kill me, my gar- ments 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 ofHcer of this court, — very politely delivered, let rae 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 gentle- men, 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 Sha- drach, and gave such witness against one of the Angels of the Deliv- erance, 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 slavt-ry 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. ;j. It was Edward CJ. Loring, another of this family so distin- guished, who kidnapped Mr. Burns and held him in irons; he whose broom Hwej)t up togetiier the marshal's guard ; he who advised Mr. Burns'rt counsel to make no defence, — "put no obstructions in the way of his going bac^k, as he |)rt)bably will ;" he who, in the dark- ncMH of midnight, sought to sell his victim, before he had examined the fvUlnnr which might prove him a freeman; he who delivered him uj) art a MJav*', against evidence as against law. 4. Another of the sam(! family, William W. Grecnough, brother- in-law of J loll. .Iiulgc Curtis, was one of the grand-jury which ARRAIGNMENT. 7 found the indictment against me, and " the most active of all in that work." 5. When I came here on the 29tli 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 distin- guished Judge and his kinsfollc and friends, valiantly and disinterest- edly 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 "sav- ing the Union " from Justice, Domestic Tranquillity, general Wel- fare, 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 grand- est 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 Hea- thendom, 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 8 THE JUDGES AND THE JURY. 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 ex- empting 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 thovight 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 judg- ment. 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 " obstruc- tion " to tiie marshal. On that side my condemnation is already .'iure. But there is anotlicr clenient. Gentlemen of the Jury, the judges and attorney cannot lay their hand on me until you twelve men with one voice say, "Yes! put liim in jail." In the mock trial of Sims and Burns it was niH-cssary to convince only a single official of the I'nitcd States Court, a " ministerial " officer selected and appointed to do it.s inferior business, a man who needed no conviction, no evi- dence but the oath of a slavohnnter and the extorted "admission" f)f hJH victim, an ofiieial who was to have ten dollars for making a flave, five only for setting free a maul But you arc a Massachusetts Jury, not of purchased oflicials, but of honest men. I think you have «ome "prejudices" to eonciuer in favor of justice. It has not ap|)eare of this will be the material and spiritual welfare of all — riches, C0fiiff>rt, noble ninnhood, all dcsiralilc things. That i» the Idea of Frecdiiocclics, Addresses, ;vnd Occasional Sermons. DoftUm, 1806, vol. ii. p. 200, el ttq. THE NORTH AND SOUTE. 13 to slavery, — the intelligent and religious from conviction, others from mere personal interest. These are Southern men with Nortiiern 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 earned 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 thqre 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 appro- priation of the metallic products of her bosom ; Manufactures, the application of toil and thought to the products of Hunting and Fish- ing, 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 Agricul- tural. 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 fomiidable 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 2 14 ENCROACHMENT OF THE SLAVE-POWER. 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 ab- sorbed 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 citi- zens," overslaughing the press, the pulpit, the bar, and the court, with the Ideas of their lower law, and sweeping along all metropol- itan 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, crowd- ing the Apostles of Freedom out from the national board, and helping the party of slavery to triumph in all great battles. Tiius 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 discord- ant. The Senatorial Executive has always carried the day against the loss permanent Presidential power, except in the solitary case wlicre General Jackson's unconquerable will and matchless popular- ity enabled him to master the senate itself, who " registered " his de- crees, or " cxj)ungcd " 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 Sena- torial 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 Inirn tlie conqueror in the field of Federal politicH. In the numerous and great conflicts between the two, Frerdom haw |)r('vaih'd against Slavery only twice since the close of the Revolutionary War, — in prohibiting involuntary servitude in the North-west Territory in 17H7, and in the abolition of the African AIM OF THE SLAVE-POWER. 15 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 Sla- very 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 subse- quently taken possession of Mississippi, Alabama and Arkansas, all slave States; has purchased Florida; "reannexed" Texas; con- quered Utah, New Mexico and California, all slave soil'; and from Freedom and the North has just now reconquered Kanzas 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 Fillibuster- ing which it starts, or allows ; Quitman "Enterprises," Kinney "Ex- peditions," 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," reestablished 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 vio- lates 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. 16 ENCROACHMENT OF THE SLAVE-POWER. (II.) The next movement is progressively to weaken and ulti- mately 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 pur- pose. 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 Free- dom ; " revile the government," — expose its hostility against the un- alienable Rights of man; "deride our institutions," — to wit, the patriarchal institution of Slavery; " sow political dissensions," — ad- vise 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 pre- serves freedom must be put down, — the individual person who pro- tests 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 tha^lie 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 HunnnoiK'd at Faneuil Hall, and Boston answered, " Yes, here is the chain. Let the woman-hunter capture Ellen Craft, make her a ProMtilute at New Orleans. She is a virtuous wife and mother, — hut MO iiiatlcr. Slavery is king and commands it. Let the 'owner' have his chain." 'J'li 2 C.impWll, 3C8, 374 ; 3 Howell State Trials, 824. JUDGES UNDER CHARLES AND JAMES. 21 to be disputed.''' ^ Genilemen, lliat was worthy of some judicial charges which you and I have heard. Charles I. (1625-1 6;39,) 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 ques- tion of Ship-money was to be brought forward in 1636, Chief Justice Pleath 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 dis- pense 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 prin- ciple 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 prferogative," 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 sub- jects 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 West- minster Hall." Shaftesbury and Guildford had the highest judicial honors. Lord Chancellor Finch, mentioned already, had been ac- cused 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 ' Speacliein the Starre-Chamber, London, 1616. 22 CORRUPTION OF THE JUDICIARY. parliament, and who by flying from their justice saved his life, was appointed to judge some of those who should have been his Judges." ^ He declared in Parliament that Milton, for services rendered to the cause of liberty while Latin Secretary to Cromwell, " deserved hang- ing." 2 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 oppres- sion of the People. Among these infamous men was George Jef- freys, 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 exag- gerated, 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." ^ 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."* 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 relat- ing 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." ^ It was tlie practice of the Stuarts " to dismiss judges without seeking any other pretence, who showed any disposition to thwart govern- ment in political prosecutions." ^ Nor was this dismissal confined to cases where the judges would obey the law in merely Political trials. In 10*^0 four of th(! judges denied that the king had power to dis- pense with the laws of the land and change the form of religion : the next morning Ihcy were all driven from their posts, and four others, more compliant, were appointed and the judicial " opinion was unanimous." II(!reupon Roger Coke says well, — "the king . . . will make the judges in Westminster Hall to murder 1h(^ common law, as Wi'll as ihe king and his brother desired to murder the parliament by itself; :ui(l 1() this end tlu; king, when he would make any judges wonlil riKike a bargain with llieni, that tliey should declare the king's' ' I.ipIIow, (inr.t.'.l ill 'i C;iiiipl.cll,4 70. = -1 I'.-iil. Hist. Ki'i. ' 3 Campbell, 394. • 2 CaiiiplHll ('lii<:f JiisticcH, «(;. » 3 Cainplmll, ■) 73. « 3 Ilallam, U2. JONES, TWYSDEN, AND KELYNG. 23 power of dispensing with the penal laws and tests made against re- cusants, out of parliament." ^ 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 acquaint- ance 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, 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.2 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 honor- able 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 11. The reporters record- ing his decisions put down " Ttvysden 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.^ 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 1 8 St. Tr. 195, note. ■ Account of him in Preface to his Keports, (1675) ; 3 St. Tr. 162, 293, 844, 1181 2 Pari. Hist. 869 ; 1 Rushworth, 661, etaJ.\ Whitlocke, 14, et al. * 6 St. Tr. 634 ; 1 CampbeU Justices, 442. 24 CORRUPTION OF THE JUDICIARY. 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.^ 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 expecta- tion by the violent, fantastical, and ludicrous manner in which he conducted himself." - But I will not now anticipate what I have to say of him in a subsequent part of this defence. 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 cliaracters as the judges of the land. We award costs and dam- ages to tlie aggrieved party in the most trifling actions. By what analogy, then, can we refuse the same ju.stice in the most important cases, to the most important person- ages? If we allow every j)itiful patriot thus to insult us with ridiculous accusations, without making him pay forfeit for his temerity, Ave 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 m(!an antipathies, and passions, and prejudices. Did tliev not count nj)oti the spirit of the. times and imagine that the same latitude which is taken by tli<; libellers is here allowable, they would not have dared to oHer so gross an outrage. I hope we f 2 St. Tr. 87:». 2 3 St. Tr. 7G9 ; 2 Campbell, 400. • 3 St. Tr. 373; Fnyikyn,;jGl ; 2 Hallain (Paris, 1841), G ac ctium 13; 2 Mrs. Mac- aulay, 16, 45, C5. CHAMBERS, ELIOT, LEIGHTON. 29 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 line .£3,000. 5. In his place in Parliament in IG'29, 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 de- manded — 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 de- creed 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 c£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 Par- liament 1 1 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 cpurt of commissions accounted it " a most odious and heinous offence, deserving the most serious pun- ishment 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 X 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 con- venient time be whipped again, branded, and mutilated on the other 1 3 St. Tr. 293; 1 Puishwortli ; 2 Ilallam, 2; 2 Pari. Hist. 4SS, 50-1; Foster's Eliot, 100 ; 2 Mrs. Macaiilay, cb. i. ii. 30 CORRUPTION OF THE JUDICIARY. 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.i Gentlemen of the Jury, which do you think would most have aston- ished 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. 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 Slar-Chamber in 1632-3, and Chief Justice Richardson — who had even then "but an indifl'erent 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 Common- wealth, 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 doo-, who though he cannot bite, yet will he foam ; he is so far from bein"- 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 fight." " 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, 1633.2 J3ut nothing intimidated, the sturdy man committed other oflences of like nature, "obstructing" other "officers," and was punished again, and banished. But on the summoning of Parlia- nxMit returned to England, and became powerful in that Revolution which crushed the tyrants of the time. 8. In J 685, James II. was in reality a Catholic. He wished to restore; Romanism to England and abolish the work of tlie Reforma- tion, the heller 1o eslablisli th(; despotism which all of his fiunily had sought to plant, lie was determined to punish such as spoke against the Paj)al Cliurch, though no law jjrohibited such speaking. Judge ' :i St. Tr. .'tH.'i ; Land's Diary, dtli November; 2 Ilallam, 28. ' .T St. 'Ir. 501 ; 2 Ilallam, 28, and his authorities. See also 2 Echard, 109, el seq., 121, ft fO'i; 202, .'Ui8, ."ilO; the roiriarks of Ilume, Hist. eh. Hi., remind me of the tone of the fu"itivu slave bill Journals of Uoston in 1850-51. BAXTER IN JEFFREYS' COURT. 31 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. " lu a Commentary on tlie New Testament, he had complained, ■with some bitterness, of tlie persecution which the Dissenters suiFered. 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 de- fence. It was on the day on which Oates was pilloried in Palace Yard that the illus- trious chief of the Puritans, oppressed by age and infirmities, came to Westminster Hall to make this request. JeiFreys 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 pillorj- ; and if Baxter stood on the other, the tAvo 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 Nonconformist divines. Two Whig barristers of great note, PoUexfen and Wallop, appeared for the defendant." '' Pollexfeu had scarce begun his address to the jury, Avheu the chief justice broke forth: 'PoUexfen, 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. lie 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.' PoUexfen gently reminded the conrt 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 fiictious knaves.' The advocate made another attemj^t to ob- tain 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, ' Eichard, Pvicliard, 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. 1 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 ! ' 32 CORRUPTION OF TDE JUDICIARY. " Baxter hckl 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 t!ie 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 sur- rounded Baxter. ' Snivelling calves!' said the judge." ^ 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.^ But the King remitted his fine. Throughout the reign of James 11. 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." ^ But their power to do evil never diminished. 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.'* 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 Sun- days 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 viola- tion of the undisputed laws of the land, but Chief Justice Wright declared from the bench his opinion that it was "legal and obliga- tory," 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." But the clergy thought diflTcrently from the Chief Justice — Episco- palians and Dis.^eiitcrs agreeing on this point. Seven bishops peti- tioned the King that llicy might not be obliged to violate their con- .sciencc, 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. " Tiic king, say.s Kcnnct, was not contented to have this declaration published iu the usual niiinncr, but he was resolved to have it solemnly read in all churches as the 1 1 Miiciiulny, (Iliin.frr'n VA.) 450-8. - 1 M:i(;iulny, ilA\- 11 St. Tr. 403. • 2 Cumpbciru Ju.tticcH, 87. '' Sec 2 lii-cwster's Newton, 108. THE SEVEN BISHOPS. 33 political gospel of liis 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 fother Petre proudly threatened, and therefore this order of coim- cil was made and published." ^ 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 AUybone 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 lie have leave from tlie 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 biipeached hy argument, nor the exercise of the government shaken by argu- ment; 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 tvhat has any private man to do with the govei'nment, if his interest be not stirred or shaken ? It is the business of the govern- ment to manage matters relating to the government; it is the busings of subjects to mind only their own properties and interests. If my interest is not shaken, ivhat have I to do with matters of government ? They are not within my sphere. If the govern- ment 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 denomi- nation ? 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 thai 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 tliere is not a parliament de facto sitting. " "\Mien the house of lords and commons are in being, it is a proper Avay of ap[)ly ing to the king; there is all the openness in the world for those that are members of parlia- ment, to make what addresses they please to the government, for the i-ectifying, alter- ing, regulating, and making of what law they please; but if eveiy private man shall come and interpose his advice, I think there can never be an end of advising the government. 1 12 St. Tr. 239. 34 CORRUPTION OF THE JUDICIARY. "We are not to measure tilings from any truth they have in thcmridves, hut 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 tlie 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 opin- ion as to law in general. I will not debate the prerogatives of the king, nor the privi- leges 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 con- tradict the actual exercise of the government, which I think no particular persons, or singular body, may do."^ 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 laic 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 iiferior 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. A'o man may tell a Judge, either by ivord or j^etition, you have given an unjust, or an ill judgment, and I will not obey it; it is against the rules and law 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 un- justly, 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."^ 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 gov- ernment ; 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 he 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 Avithin his power and prerogative ; and if any one would come and bring that power in (picstion otherwise than in jiarliament, tliat the matter of that proclamation be not legal, I say that is sedi- tion, and you arc not to examine the legality or illegality of the order or proclamation, but the slander and rcllcctioii uj)on the government." " If a ])erson do a thing thai is libellous, you shall not examine the fact, but the con- Boqucnce of it ; whether it tended to stir up sedition against the public, or to stir up Btrife between man and man, in the case of private persons; as if a man should say of a judge, lit; has taken a brilic, and I will j)rove it. "They tell the king it is inconsistent with their honor, prudence, and conscience, to do wliat he would have them to ilo. And if these things be not reOective ujjon the king and go\eriiiiieiil, I kimw not what is. 1 12 .St. Tr. -ri7, 428, 429. '^ 12 St. Tr. 281. HORNE TOOKE. 35 "I'll tell you what they should have done, Sir. If they were commanded to do any thing against tlieir consciences, they should have acquiesced till the meeting of the parUa- ment. [At which some people in tlie court hissed.] '•'• If the lcin(j will impose upon a man wliat he cannot do, he must acquiesce ; but shall he come and lly in the face of his jirince ? Shall he say it is illegal V and the prince acts iagainst ])ruilence, honor, or conscience, and throw dirt in the king's face? Sure that is not perniitlcd ; that is libelling wilh a witness."^ Here, however, there was a Jury — the seven bishops were acquit- ted amid the tumultuous huzzas of the people, who crowded all the open spaces in the neighborhood of Westminster Hall, and rent the air with thek shouts, which even the soldiers repeated. ^ Two of the Judges — Sir John Powell and Sir Richard 'HoUoway — 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 simi- lar 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 nothitig 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 Home, better known by his subsequent name John Home 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 mem- bers present who might approve the purpose, for raising the sum of £100, to be. ap- plied to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, who, faithful to the character of Englishmen, prefen-ing death to slavery, were for that reason only inhumanly murdered by the king's troojjs 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. Ilorne do pay to-morrow into the hands of Mess. Brownes and CoUInson, on account of Dr. Franklin, the said sum of 100/. and that Dr. Franklin be i-equested to apply the same to the above-mentioned purpose." 1 12 St. Tr. 415, 416, 417. 2 See 2 Campbell's Justices, 95. 36 CORRUPTION' OF THE JUDICIARY. 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 Ameri- can 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 dis- turbed the monopoly of that commercial metropolis. The govern- ment thought it necessary to punish any man who ventured to oppose their tyranny and sympathize with America. Accordingly it was determined that INIr. Home 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 swea7'ing- of his would insure a bill; nay, perhaps he did not venture to " bet ten dollars that I w411 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 e.v officio against Mr. Home, therein styling him a " wicked, malicious, sedi- tious, 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 Majes- ty'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 s'editious libel ;" " full of rib- aldry, Billingsgate, scurrility, balderdash, and impudence;" "wicked is a term too high for this advertisement;" "its impudence disarmed its wickedness." In short, Mr. Home was accused of " resisting an ollicer," obstructing the execution of the " process " whereby the American Provinces were to be made the slave colonies of a metro- |)olitan despotism. The usual charge of doing all this by "force and arms," was of course thrown in. The ])ublication of the adver- ti.s(?rnent was declarrd a "crime of such heinousness and of such a Hize as fairly callfd for the highest res(>ntment which any court of justice has Ihonght proper to use with respect to crimes of this denom- ination ;" " a lilxl such (hat it is impossible by any artifice to aggra- IIORNE TOOKE. 37 vate 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. Home was brought to trial on the 4th of July, 1777. He de- fended 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 corrup- tion, — 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. Home 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 Jine^ 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 des- perate 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. " AVith regard to imprisonment, that is a species of pvuiishment 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 hear- ing it solemnly avowed ... by the defendant himself, that imprisonment was no kind of inconvenience to him ; for that' certain employments, . . . would occasion his con- finement in so close a way, that it was mere matter of cii-cumstance whether it hap- pened 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 i^uniahment. " I stated in the third place to your Lordships, tliejnUory to have been the usual pu7iish- ment 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 Stai'-Cham- ber .... the punishment of the pillory was inflicted, not only during the time that such prosecutions were rank in the Star-Chambcr, 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 Kevolution, and while my Lord Chief Justice Holt sat in this court. 4 38 CORRUPTION OF THE JUDICIARY. " I -would desire no better, uo more pointed, nor any more applicable argument than Tvhat that great chief justice used, when it was contended before hiiu 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 in- duced 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 jnllory ; I should have been very sorry to have brought this man here, after all the aggravations that he has superinduced upon the oirence itself, if I had not been per- suaded that those aggravations would have induced the judgment of the pillorg." ^ But INIansfield thought otherwise, and punished him with a fine of <£200 and imprisonment for twelve months.^ " 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." ^ * 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. Home was sent to jail, Thurlow was made piiord 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 lias rarely exhibited one who so ill under- stood, 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 ad- ' 20 St. Tr. 780-783. = 20 St. Tr. C51 ; 5 Campbell, 415. ' Statesmen, 2 Scries, 109. CONSTKUCTIYE CRIME. 39 ministration 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 Chan- cellor, Thurlow, opposed it and said : — " It api)ears that the French have ofTered premiums to encourage the African [slave] trade, and that they have succeeded. Tlie natural presumption therefore is, that ?re 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 Avould appear to me rather more wise than thus to take up a subject piece- meal, which it has been publicly declared ought not to be agitated at all till next ses- sion 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, ' M// Lords, 1 am ruined if you pass this bill! I have risked £30,000 on the trade this year ! It is all 1 have ieen aide to gain by my industry, and if I lose it I must go to the hospital!' I de- sire of you to think of such things, my Lords, in your humane phrensy, and to show some humanity to the whiles as well as to the negroes." ^ One measure of tyranny in the hands of such Judges is Construc- tive Crime, a crime which the revengeful, or the purchased judge dis- tils out of an honest or a doubtful deed, in the alembic he has made out of the law broken up end 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 intoxicat- ing draught to madden man and infuriate woman, so by the sophis- try 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 com- mitted 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 author- ity." It was " levying war." He thus laid down the law. " The prisoners are indicted for levying war against the King. By levying 1 5 Campbell, 460 ; 27 Pari. Hist. G38. 40 CORRUPTION OF THE JUDICIARY. war is not only meant when a body is gathered together as an army, but if a company of people luill go about any public rcfor?nation, 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 cap- tain [an apprentice ' walked about with a green apron on a pole "] and an ensign and weapons, — if this thing be endured, ivho is safe? It is high treason because it doth betray the peace of the nation, and every subject is as much ivronged as the King; for if every man may reform what he will, no man is safe ; therefore the thing is of desper- ate 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 viz- ard 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 is 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." ^ 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 sen- tence, except Sir Matthew Hale. He declared there w^as no treason committed ; there was " but an unruly company of apprentices." ^ This same Judge Kelyng, singularly thick-headed and ridiculous, loved to construct crimes where the law made none. Thus he de- clares, "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." ^ 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 tin; magistrates' duty, and if the magistrates pervert Judgment, the people are bound by the law of God to execute judgment without thcni ;iii(l upon Ihcni."'* So Ihc printer of the book, containing the " treaH()nal)l(! |)r{)j)()siti()n," was executed. A man, by name Axtell, who coirunandcd Ihe guards wliirh attended at the trial and execu- tion of Charles I., was brought to trial for treason. He contended ' 1 Cinipljell's Justices, -101-5; Kcljiig's Reports, 70. - G St. Tr. 879, note 911. » Kelyng's llcports, 12. •* Jbid. 22. ILLEGAL TORTURE. 41 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 \yhen the command is Traitorous, then the Obedience to that Com- mand 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 ! ^ These wicked constructions of treason by the court, out of small offences or honest actions, continued until Mr. Erskine attacked tliem with his Justice, and with his eloquence exposed them to the indigna- tion of mankind, and so shamed the courts into humanity and com- mon sense.2 Yet still the same weapon lies hid under the Judicial bench as vTeW 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. 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 Sey- mour of Sudley, Admiral of England, was put to the torture ; ^ in 1604 Guy Fawkes was " horribly racked." * Peach am was repeatedly put to torture as you have just now heard, and that in the presence of Lord Bacon himself in 1614.^ 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, mak- ing his own " ungodly custom " stand for law.^ 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 rea- son ! " " In 1628 the judges of England solemnly decided that torture ^ Kelyng's Reports, 13. = See his Defence of Hardy, 24 St. Tr. 877. 3 See 2 St. Tr. 774, note. * 1 Jardiue, Crim. Tr. 16. ^ 2 St. Tr. 871. « 1 Jiirdine, 19. ' Ibid. 4* 42 CORRUPTION OF THE JUDICIARY. was unlawful; but it had always been so, — and Yelverton, one of the judges, was a member of the commission which stretched Peachain on the rack.i Yet, spite of this decision, torture still held its old place, and a warrant from the year 1640 still exists for inflicting this illegal atrocity on a victim of the court.^ 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.^ Yes, torture was long con- tinued in England itself, though not always by means of thumb- screws 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.^ 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. 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 throu"-h. . . . 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 sui)erior authority, will for a while prevail, till by repeated iniquities they grow intoler- able 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." * Thus, (Tcntlcmen 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. > 3 St. Tr. .371. See 30 St. Tr. 892. ' 1 Jarditic, '20. See Enilyn, Preface to St. Tr. in 1 Ilargrave, p. iii. ' no St. Tr. 22.0. * See case of Iluggins in 17 St. Tr. 297, 309. ' 1 Ilarjirave's St. Tr. G. IMPOSITIONS AND BENEVOLENCES. 43 (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 king- dom 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-Cham- ber. " 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 abun- dantly 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.^ 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 mer- chandise " to be for ever hereafter paid to the king and his suc- cessors, on pain of his displeasure." ^ Thus the Measure became a Principle. 2. James, wanting funds, demanded of his subjects forced contribu- tions 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 1 2 St. Tr. 371, and 11 Hargrave, 29; 1 Campbell's Justices, 204. ■ 1 Hallam, 231. See 1 Pari. Hist. 1030, 1132, 1150; Baker's Chrouicle, 430. 44 CORRUPTION OF THE JUDICIARY. pay what was demanded of him, and wrote a letter to the mayor of Marlborough against the illegal exaction. For this he was prose- cuted 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 imprison- ment during the king's pleasure. This decision gave the king abso- lute power over all property in the realm, — every private purse was in his hands 1 1 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." ^ 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 jnatter came to trial in 1627. Sir Randolf Crewe, a man too just to be trusted to do the iniquity desired, was thrust out of oflice, 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 kitig- hath done if, and ive trnst 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 ivill 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.^ But the matter was brought up in Parliament and discussed by men of a different temper, who frightened the judge by threats of im- peachment, 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 laiu, after it is made, hath its exposition, ivhich is to be left to the courts of justice to deter- mine ; 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 tiic phiin law so as to oppress the subject and please the ' 2 St. Tr. 809 ; 1 Ilallarn, i:>\ ; 2 Campbell, 201. = 1 Pari. Hist. 115G. 3 3 St. Tr. 1. Sec also 2 Pari. Hist. 288; 1 llushworth ami 1 ]\Irs. ]\Iacaulay, 341. GENERAL WARRANTS AND SIIIP-MONEY. 45 • king! Aa the judges had promised to annul the law, the king signed it.^ 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.^ The same chief justice gave an extrajudicial opinion justifying the illegal seizure of the members, — "that a parlia- ment 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 Parlia- ment, in the Star- Chamber, as an offence committed in Parliament beyond the office, and beside the duty of a parliament man." ^ Thus the judges struck down freedom of speech in Parliament. 4. In 1634 Charles I. issued a writ levying ship-money, so calledyon 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 loith the order and pay the money I The King got an 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 saic fit, and, compel juen to pay it. He was the sole judge of the danger, and of the amount of the tax. * John Hampden was taxed twenty shillings — he refused to pay, though he knew well the fate of Richard Chambers a few years be- fore. 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 Eng- land showed that the tax was contrary to Magna Charta, to the fun- damental 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 ^ 1 Campbell, Jusfices, 311 ; 2 Pari. Hist. 245, 350, 3 73, 408, et al.; 3 St. Tr. 59. " See above, p. 29. ^1 Campbell's Justices, 315. * 3 St. Tr. 825. See tbe opiuion of the Judges with their twelve names, 844, and note t- 46 CORRUPTION OF THE JUDICIARY. sacrifice his conscience for fear of danger, and the Woman, as it so often happens, saved the man.^ 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 16341 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 Eng- land, he is an absolute monarch ; nothing can be given to an abso- lute 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 con- tain 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." ^ 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 exer- tions 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 suffer- ance. Tills alarming tenet, long bruited among the churchmen and courtiers, now resounded in the halls of justice."^ 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 wilh its noble attendant charters, were at once swept away, and all lli(^ property of tiu! kingdom put into the hands of the enemy of till! Mcoplc. These four decisions would make the King of England as al)solule as the Sultan of Turkey, or the Russian (^zar. If the oj)inion of the .Judges in liic case of Impositions and Shii)-money were ' Wliilclork,., Mcmor. 25. = 2 Ilallani, If). ^2 Ilallam, 18. DRS. SIBTHOKPE AND MAINWARING. 47 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 ihe 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 Parlia- ment, 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 cler- gymen 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 doestthou?'" 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 ex- hibit an Active one, . . . but in all others he is bound to active obe- dience." 1 Mainwaring went further, and in two famous sermons — preached, one on the 4th of July, 162S, 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 Roi/al ivill and Conifnand, in imposing Loans, and Taxes, without consent of Parliament, doth oblige the subjecCs conscience upon pain of eternal dafnnation. That those who refused to pay this Loan of- fended 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 Assem- blies 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 j)cirtake of omnipotence ivith GodP ^ The nation was enraged. Mainwaring was brought before Par- 1 Cited in Franklyn, 208 ; 1 Ivushworth, 422, 436, 444. - 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 pubhcation — written with the same spirit as Dr. Mainwariug's — "Con- science and the Constitution." (Andover, 1851.) See 3 St. Tr. 335; 1 llushworth, 422, 43G, 585, et aL\ 1 Ilallam, 307; 2 Pari. Hist. 388, 410. 48 corbuptiojST of the judiciary. liament, punished with fine and imprisonment and temporary suspen- sion 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 downfal 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 minis- ter 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." ^ No Higher Law I America has ministers who need no act of Parliament to teach them to do the same ; they run before they are sent. 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 des- potism began anew. I pass over what would but repeat the former history, and take two new examples to warn the nation with, difiiering from the old only in form. In 1672, Charles II. published a proclamation denouncing rigorous penalties against all such as should speak disrespecifiiUy of his acts, or hearing' others thus speak should not immediately infonn the magis- trates ! 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 law- ful vpon anjj pretence ivhatever to take up arms against the king, .... and that 1 will not, at any time to come, endeavor the alteration of the government, either in Church or State." ^ 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 delibera- tions upon ecclesiastical or civil affairs ; and never to seek any reform in Church or Stated ' 2 Camj.lM'll, 400; 1 Kuslnvorlli, 1205. ' Carroll'a Counter Revolution (I^oiul. ISIG), 99, et seq. SEIZURE OF THE CHARTER OF LONDON. 49 Notwithstanding all that the Charleses had done to break down the liberty of Englishmen, still the great corporate towns held out, in- trenched 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 icarranio 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 pub- licly 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." 1 London still remained the strong-hold of commerce, of the Prot- estant Religion, and of liberal Ideas in domestic Government; for though subsequently corrupted by lust of gain, which sought a monop- oly, 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 doubt- less, but then on the side of liberty, the enemy of encroaching des- potism, — 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 therefor 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 CharteT. 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, ^ 8 St. Tr. 1038, and the quotations from North (Examcn.) Sprat, and Ro^er Coke, in note on p. 1041, ct seq. See, too, Fox, James II. p. 48, 54, and Appendix, Barillon's Letter of Dec. 7th, 1684. 5 50 CORRUPTION OF THE JUDICIARY. and the liberties and franchises of the city should " be seized into the king's hands." ^ 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 preroga- tive 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.^ One State-secret lay at the bottom of the Stuarts' plans, — to ap- point 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, Jef- freys, Scroggs ! ^ infamous creatures, but admirable instruments to destroy generous men withal and devise means for the annihilation of the libehies 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 wliieh 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. '2 Ilallam, 3;J3 ; Ikirnet, Own Times (London, 1838), 350; 8 St. Tr. 1039, 1081 note, 1267, et seq.- 2 Campbell, Justices, 63 ; North's Examcn. 626 ; Fox, 54. ' 11 St. Tr. 116.5; 12 Ibid. 3,',8. 'This la.st name is tliought to be extinct in (ircat I'ritiuii, l)ut I find one Thomas Scruggs in MmsachuseUa in 1635 clposl, 1 Mass. Itecords (1628-1611), index. PERSECUTION FOR RELIGIOUS WORDS. 51 It is difficult to calculate the amount of evil wrought by such cor- rupt 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, Saun- ders, 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 exam- ines 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 for- ever, 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 tliirty-nine persons ivere first hanged and then burned for this " crime." ^ 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 " misde- meanor." 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.^ 3. In 1619 one Williams of Essex wrote a book explaining a pas- sage 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. " PunUiir Affectus, licet non sequatur Effcctus," said the court, for " Scribcre est ag-ere,''^ " Punish the wish though the object be not reached," for " writing is doing I " ^ ^ 1 St. Tr. 252. = 1 St. Tr. 1271; 1 Neal's Puritans (N. Y. 1844), 190. See 16 Pari. Hist. 1276, where Mr. Dunning says this is the first example of such a charge to a jury. ^ 2 St. Tr. 1085. 52 CORRUPTION OF THE JUDICIARY. 4. In 1664 Mr. Keach, a Baptist, published a " Childs' Instructer, or a New and Easy Primmer," in which he tauglit 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 suf- fered, children by learning of it will become such as he is, and there- fore 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 " X20, twice set in the pillory, and bound to make public submission." ^ 5. In 1679 George Wakeman and others were tried for high trea- son before Scroggs, whose conduct was atrocious, and several pam- phlets were published commenting on the ridiculous and absurd con- duct of this functionary, " Lord Chief Justice Scroggs." One Rich- ard 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 I " 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.^ " For these liircllng 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 ^thcsc hackney writers." "However, in the mean inna, iha cxtraiHujanl boldness of men's pens and tonrjues is not to be endured, hut shall, be severely pnnislied ; for if once causes come to be tried with complacency to particular opinions, and shall be innocent- ly censured if thej'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 tJudges shall be arraigned, the Jury condemned, and the verdicts overawed to comply with popular wish and indecent shouts." "TlK're are a set of men .... that too much approve and countenance such vul- gar ways, .... that embrace all sorts of informations, true or false, likely or impos- sible, 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 !" > 7 St. Tr. 087. '^ 6 St. Tr. 701; sec Dunning in 10 I'arl. Hist. 1270, et seq. SCROGGS AND JEFFREYS. 53 His associates chimed in with accordant howl. Puny Judge Jones declared, — " We have a particular case licre before us, as a matter of scandal against a groat 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 cer- tainly there was never any age, I think, more licentious than this in aspersing gov- ernors, scattering of libels and scandalous speeches against those that are in authority ; and without all doubt it doth become the court to shoio their zeal in suppressing it." [It was ' resisting an officer.'] " That trial [of Dr. Wakeman] was managed with exact justice and perfect iiitegrilij. And therefore I do think it very fit that this person be pro- ceeded against by an information, that he may be made a piublic example to all such as shall presume to scandalize the government, and the governors, with any false asper- sions and accusations." Accordingly Mr. Radley, for that act, was convicted of speaking " scandalous words against the Lord Chief Justice Scroggs " and fined X 200.1 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." ^ 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 Ubel. He was fined five hun- dred pounds and placed in the pillory ; the Chief Justice wished that he might be also whipped.'^ 7. The same year Henry Carr was brought to trial. He published a periodical — " the Weekly Packet of advice from Rome, or the His- tory 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." * 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 I 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 1 7 St. Tr. 701. - In 2 Collectanea Juridica, 228. » 7 St. Tr. 925. * 7 St. Tr. 1111, t)59 ; 4 TarL Hist. 1274. 5* 54 CORRUPTION OF THE JUDICIAR'Y. dangerous the " crime ! " If the language did not hit any one person it was " malice against all mankind," 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 under- standing, 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 sur- prise 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 execu- tion 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 i:io,ooo.i Gentlemen of the Jury, such judges, with such kings and cabi- nets, have repeatedly ])rought 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 ' 7 St. Tr. 1333. UNLICENSED PRINTING FORJJIDDEN. 55 the Liberty of unlicensed Printin<^" is one monument of the warfare which lasted from Wiclifl'e to Thomas Carlyle. But other monu- ments 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 " Misde- meanor," 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 "ill lliG 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 io print or publish any 7ieics- books, or pamphlets of neivs whatsoeiwr, 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 the// ong-ht to print no book or pamphlet of?ieius ivhatsoever without authoritij ; " " tJiey shall be punished if they do it ivithout authority, though there is nothiftg reflecting on the government." ^ 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 Scrogges came over to America; they settled in Massachusetts, they thrive famously in Boston ; only the name is changed. In 1731 Sir Philip Yorke, attorney-general, solemnly declared that an editor is " not to publish any thing reflecting on the character and repu- tation 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 itP 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 " con- summate judge," a Peer, Lord Hardwicke, and Lord Chancellor ! ^ 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 1 7 St. Tr. 1127. - 17 St. Tr. 674 ; 5 Campbell, 57 ; Hildreth's Despotism, 199. 56 CORRUPTION OF THE JUDICIARY. 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.^ Thus the party in power with their Lough- boroughs, 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 ; ^ 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. But spite of all these impediments in the way of liberty, the voice of humanity could not be forever silented. Now and then a virtuous and high-minded judge appeared in office — like Hale or Holt, Cam- den 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 inJParliaraent, thus spoke against the advance of despotism :^ — " I read of a custom among tlie old Romans, that once every year they had a solemn feast for their slaves ; at ■which they had liberty, Avithout exception, to speak what they ■would, therebj' to ease their afflicted minds ; which being finished, they severally re- turned 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 Kcligion: religion, JMr. Speaker, made vendible by commission, and men, for pecuniary annual rates, dispensed witlial ; Judgments of law against our liberty tiiere have been three ; each latter stepping forwarder than the former, upon tlie Riglits of the Subje'ct; aiming, in the end, to tread and tramj)le under- foot our law, and that even in the form of law." " The first was the Juilgment 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 afiliction unto our merchants." " The 1 20 St. Tr. 000. r.iit sec 28 St. Tr. 595, and 10 I'arl. Ilisl. 1211. '■i For tliR fn!f|iiciicy of triiils for wonls spoken in Chiirkis II. 's reign of terror, sec the extracts from NarciMiis Luttrd'H IJricf IlistoricsU Kclation, 10 St. Tr. 126. » 1 Kiisliwortli, 502. ROBERT PHILLIPS AND PHILIP PARKER. 57 third ^Yas 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, altliough another wlio 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 mj^ 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 fore- fathers ! 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 tliem He 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." ^ 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." " 'T is 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."" Six of the wicked judges were soon brought to trial.^ 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 free- dom of the colonies ; the Charter of Massachusetts was wrested from us on a quo ivarranto in 1683,^ and the colony lay at the feet of the ^ 2 Pari. Hist. 232. See also 441, 471. He had been thrown into the Tower by James in 1624. Cabbala (3d Ed.), 311. 2 Pari. Hist. 867. » 1 Rushworth, 502. ' * See the steps of the process in 1 Hutchinson, (Salem, 1795,) 297; 8 St. Tr. 1068, note. 58 CORRUPTION OF THE JUDICIARY. 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.^ In 1686 James 11. 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 au- thorized 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 intro- duced ; 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 min- ister 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 w^as 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. He sought to wrest the charters from the Colonies ; that of Rhode Island fell into his hands ; Connecticut escaped by a " mii'acle : " " The Charter-Oak — it was the tree That saved our sacred Liberty." The Charter government of Plymouth was suspended. Massachu- setts 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 ' T'arillon to Louis XIV. in Fox's Appendix, p. vii., el serj. In 1G85 Ilalitiix, who Lad been friendly to the rights of the colonics, was dismissed from his odicc; Sunder- land, tlicir enemy, had a pension from Louis XIV. of £5,000 or £6,000 a year; p. cxxvii., cxxx. el srfj., cxliii., cxlviii. Not the last instance of a high functionary pen- sioned by a foreign hand ! ANDROS, RANDOLPH, IIIGGIXSON. 59 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^ hut not to he sold as slavesP 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 haheas corpus ; Chief Justice Dudley refused it, on the ground that it did not extend to America! They vv^ere 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 Avere fined from £lo to X50 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.^ 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 ffi-st 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.- Andros said, " You are either subjects, or else you are rebels ; " and in either case, their lands would be forfeit. Andros hated freedom of speech and of thought. He was to allovv' no unlicensed printing. Randolph was appointed censor of 1 1 Hutch. 316; 2 Hildretli, Hist. 108; 2 Bancroft, 425; Washburn, Judicial Hist. of Mass.. 105; Drake's Boston, ch. L. - 1 Felt's Salem, 24 ; 2 lb. 542 ; Felt's Ipswich, 123, et seq. ; Gage's Eowley, 157, et seq.; Sullivan's Land Titles, 54. 60 CORRUPTION OF THE JUDICIARY. the press, and ordered the printer to publish nothing without his ap- probation, nor "any ahiianac 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 C4old, 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 INIather 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 govern- ment forged a letter with his name, to a person in Amsterdam. Randolph showed the letter to persons wjiom he wished to prejudice against the alleged writer. When Mr. Mather learned the facts, he wrote a letter tt a friend, clearing himself, and charging the forgery on Randolph or his brother. Randolph brought his action for a libel, claiming X500 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, w^as empowered to bind over all persons suspected of riots, " outrageous or abusive reflecting' ivords and speeches against the government.^'' " The spirit of justice was banished from the courts that bore the name." ^ 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 Higgin- son, 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 th(; courts would not decree Justice, there was a rougher way of reaching it, and having it done. Civil war, revolu- tion by violence, came in place of the simple forms of equity, which ' 1 Hutch. 327; Washburn, ibid. DESPOTISM IN XEW EXGLAND.^ 61 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 I We were rid of that func- tionary 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 Secre- tary 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 every- where, into the hands of the distant government centralized in the King. 2. A standing army of British soldiers must be kept in the Colo- nies 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 bis 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 Deli- 6 62 CORRUPTION OF THE JUDICIARY. lah. 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 Lieu- tenant-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 Oli- ver" — though not bred a lawyer, was made Chief Justice, the man who refused to receive his salary from the treasury of Massa- chusetts, preferring the money of the crown which owned him. In the revolutionary times of the five Judg^es of Massaphiiselts four v'ere Tories I Accordingly, when the Stamp Act was passed — 22d March, 1765 — there were Judicial officers in the Colonies ready to declare it " consti- tutional;" 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 Ber- nard 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." ^ In 1768 John Hancock was arrested at Boston — for a " misde- meanor ; " I suppose, " obstructing an officer," or some such of- fencc.2 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 sup- pose 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 tliey did not contrive to get upon the grand-jury. The King, it was George HI., in his parliament, spoke of the l^atriots 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 ' 5 Bancroft, 358. " C Bancroft, 213. DESPOTISM IN NEW ENGLAND. 63 must bo SO changed as to give the King the appointment of the Coancil, and to the sheriffs the sole poioer 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 I Suppose, as a pure conjecture, an hypothesis of illustra- tion — 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 commissionejis 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 I You see, gentlemen, what an admirable opportunity there would be to accom- plish most manifold and atrocious wickedness. This supposed case exactly describes what was contemplated by the British authorities in the last century I Only, Gentlemen, it was so unlucky as rwt to succeed; nay. Gentlemen, as to fail — then! Such accidents will happen in the best of histories I It was moved in Parliament to address the king "to bring to con- dign punishment" such men as Otis and Adams and Hancock. Chief Justice Hutchinson declared Samuel Adams " the greatest in- cendiary 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 I " 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 Bos- ton by the neck. He thought it treasonable to deny the authority of Parliament.! Men suspected of " misdemeanors " were to be sent to England for trial ! What a " trial " it would have been — Hancock and Adams in AVestminster Hall with a jury packed by the govern- ment ; Thurlow acting as Attorney- General, and another Thurlow growling on the bench and expecting further office as pay for fresh injustice I 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 Slave-holders, or * 6 Bancroft, 250, 251, 291 ; Sabine's Loyalists, 207, et al. 64 CORRUPTION OF THE JUDICIARY. still worse, without change of place, to be tried by a court deadly hostile to freedom, — wresting law and perverting justice and " enlarg- ing 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 VHI. authorizing that mode of trial in case of such " misdemeanor." Commissary Chew wished that two thirds of the lawyers and printers were sliipped off to Africa " for at least seven years." Edes and Gill, patriotic printers in Boston, and " all the authors of number- less treasonable and seditious writings," were to go with them,^ They were all guilty, very guilty I Gentlemen of the Jury, they committed " misdemeanors," they " obstructed officers," they resisted the process of despotism I But alas — " The Dog It was that died." 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 VHI. ; a law not yet repealed, Gentlemen, the Higher Law which God wrote ineflf'aceablyin 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 theii' lives to, are helfl in contempt! "Where is the one spot, that sp IG Pari. Hist. 168, 195, 658. 6* 66 ' TRIAL BY JURY. III. Of the Great Safeguard which has been found serviceable IN PROTECTING DEMOCRATIC INSTITUTIONS AND THE RlGHTS 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 w^ould 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 popu- lar institutions — Democratic Legislation and Democratic Adminis- tration 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 mat- ters and things pertinent to law-making. These are a Jury of gen- eral 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 oniy 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. Neit,h(,'r of them as yet has reached its perfect and ultimate form; both are still in a state of transition. These two are the most valu- able institutional safeguards against unorganized selfishness in the community, — against tliicves, robbers, murderers, traitors, and the like ; against the organized selfishness which gets info places of dele- gated power, and would misuse tlie Form of law so as to prevent the Peo[)le from attaining the Purpose of law. There is also a body of men intermediaic- between the two, — the Law-l*iX|)laiiMTS, the .fudges. Speaking theoretically they are not ultimately 'either Law-makers or Law-ai)j)liers, yet practically, in their legitimate function, they certainly have nmch to do with both the THE GOOD JUDGE. 67 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 is 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 witli 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 loolc 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 pun- ishment. 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, INIansfield, 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 ser- vants 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 68 TRIAL BY JURY. which the People have laid down ; or have the legislative servants ex- ceeded 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 Lib- erty 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 stat- utes, 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 Eng- land, 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 natu- ral 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 i)articular 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 ])urpose of law itself, which is justice between man and man. 'I'lic wicked Judge, looking only to the power which raised him to his j)lace, and may lift him higher still, — not to that other Hand which JH 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. GOOD AND BAD JUDGES. 69 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 looi\s 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 conscious- ness. Nay, it seems sometimes as if the moral sense became extinct, and the legal letter took the place of the spirit of Justice \\'inch 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 worsMpper offers sacrifices of human blood. The late Chief Justice Parker, one of the most humane and estimable men, told the Jury they liad nothing to do u'ith the liarsh- ness of the statute ! but must execute a law, however cruel and unjust, because somebody had made it a law I 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! Gen- tlemen, 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 particu- lar 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 ivill bring- in a verdict according to your con- science.'''' 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. Rug- gles thought the judges who reexamine the decisions and pronounce the final judgment in disputed cases, and determine the constitution- ality 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 a'ppellate Court, four should be Justices of the Su- preme Court, and four more should be elected by the people on a general ballot, thus securing a popular clement in that highest Court. 70 TRIAL EY JURY. 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 circum- stances of the case, and at variance with the nature and principles of our social and political institutions." ^ "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." ^ 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 Slave- holders, regardless alike of the interests of the People and the protes- tations of the Conscience of Mankind.^ 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. 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, be- coming more and more legal, less and less human, less natural and more technical; their eye is microscopic in its niceness of discrimina- tion, 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 con- science: 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 ' Debates in Nuw York Convention, 371, et al. ' .Jorfl.an's Spoceli, ihitL, 447, et al. See also Mr. Stow's Remarks, 473, and Mr. StepIicnH*, 474, et at. Yet all these four speakers were lawyers. ^ Iliidreth's Despotism in Ameriea (1854), 2C3, cl al. HISTORICAL DEVELOPMENT OF THE JURY. 71 the true ]\[u.ssulinan 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 sus- pects 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. Gentle- men, between the Fugitive Slave Bill and Humanity. You know the Function of the court — the manner of the Judges' appoint- ment — 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-apply- ing. 1. In the barbarous periods of the Teutonic Family,^ 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 inhabi- tants 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 tlfe spot. The whole people investigated the matter, made the law — often an ex post facto IsiW, — applied it to the special case, and ^ By this term I mean all the nations with language akin to the German. 72 TRIAL BY JURY. 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 ven- geance more than prospective for future welfare. 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 iti Thus extemporaneous Making of law for ihe 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 law^s, 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-m.aking. (1.) The unorganized People — the primary source, whose uncon- scious 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 war- like — Ihe 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 appro- priated to itself the chief part of the business of law-making. Statute laws became more and more numerous and important; tliey were the principal — the customs were only subsidiary, laws de Jure, enacted HISTORICAL DEVELOPMENT OF TUE JURY. 73 before they arc 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 peri- ods 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 ])arty, 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 inves- tigate each particular case, or to determine what cases should be pre- sented 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 pop- ular 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 condemna- tion 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 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 sus- pected 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. 7 74 TKIAL BY JURY. 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 popido — public opinion still influences the Jury. As most of the Jurors were unlearned men, not accustomed to intri- cate 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 un- known in lands where the trial is conducted solely by experts, edu- cated 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 Teu- tonic family, but as twelve has long been a sacred number with the Anglo-Saxons, that was gradually fixed for the Jury. Twelve consent- ing 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 men- tion 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 cho- sen 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 l^higland 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. JJ. When the nation is organized more artificially and the laws chiefly proceed from the secondary source, the government, — elective or usurpatory — a judgfj is appointed by the central authority to visit niSTOPJCAL DEVELOPMENT OF THE JUDGE. 75 the districts (comities) 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 inlierited custom, but only receive it as the authorities send it down from the Capitol. The law is ivriltcn — 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 appli- cation, 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-govern- ment (;lisappears 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- 76 TRIAL BY JURY. Saxon tribe reverences this defence as the Romans their twelve AOXCILIA, the mythic shield which " fell from Heaven." ^ After so much historic matter, Gentlemen, it is now easy to see what is — The FuNCTiojf 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. HI. They are to decide the Question op 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 diflicult. 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 I he facts" so and so; that is — he undertakes to decide the Question of Fact. ' In (Ilia briof skc.-tcli I do not roftT to tlic aulliorities, but sec, who will, tlic classic passa^res and prool-texts in the Avell-knovvn works of Grimm, llogge, Bioner, Michel- sen, M().ser, I'liillijiH, Kichhorn, ^Maiircr, aiul others. PRESENT FUNCTIONS OF JURORS. 77 In libel cases it is very common for New England judges to under- take to determine what constitutes a libel, and to decide on the inten- tions 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 ques- tion of fact to determine what constitutes a libel, as what constitutes theft, the animus Ubcltandi as much as the animus furandi. Some- times 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 stat- ute 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 Attornei/. The GJovernment 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 infer- ences 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 per- sonal and actual, but only his official and assumed opinion — what he wishes the Jury to think is law in this particular case. 2. The Testimonij of the Defendants Attorney. The accused is his client. He is to do all he can to represent the law as favorable as pos- sible 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 Jud^e 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 78 TRIAL BY JURY. 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 liis time play many parts." Of these three classes of witnesses, no one gives evidence under spe- cial 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, preju- diced, or plainly false and forsworn ; so will the jury hear the mani- fold 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 as ignorant, partial, preju- diced, 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 uj) their own judgment as to the l*'ii(;t. So likewise they arc not to take the government attor- ney'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 otherwise knowji to them, to make up their own judgment as to thf Jjaw. Aflcr they have done so — if they decide the Law in favor of the uccn.-cd, the process stops there. The man goes free; for PRESENT FUNCTIONS OF JURORS. 79 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 forjn of Law to be punished thereby?" The government attorney and the judge are of the opin- ion 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. P'or 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 prose- cute 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 cir- cumstances 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 w^ould 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 spe- cial statute to this particular deed. Here are two things to be con- sidered. 80 * TRIAL BY JURY. (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 ivrong ; done from a ^vrong 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 I 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 deduc- tion 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 Vv^hole 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 usur- pation. (1.) It is contrary to the fundamental Idea of the Institution of Trial by jury. {:l.) 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 PRESENT FUNCTIONS OF JURORS. 81 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 ques- tions 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 conniiands of tlie judges. Gentlemen of the Jury, if you perform this tlircefold 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 Peo- ple-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 particu- lar 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 Con- science, Gentlemen ; not in the conscience of the Attorney for the 82 ' TRIAL BY JURY. Plaintiff- Government, or the accused Defendant; not in the con- science 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 com- mon 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 IMatter of Right by your own Discretion of Conscience. Gentlemen, when the jury do their official duty it becomes impossi- ble 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 him- self 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 im- minent 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. (L) " Have you formed an opinion that the law of the United States, known as the Fugitive Slave Law of 1850, is Unconslitu- iioiial, so 1h;it 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 uncon- sUtiilioiKil ;irc a1 once set aside. The judge proceeds to ask such as have MO doubt that if is constitutional, (2.) " Do you hold any opinions on the subject of Slavery in CASE OF JUDICIAL USURPATION. 83 i^encral, or of the Fugitive Slave Law in special, which would induce you to refuse to indict a man^presented to you for helping Ins brother to freedom ? " This is riddling No. 2; other "good men and true" arc rejected, but some are found " faithful" to the purposes of the court ; and the judge puts his next question, (o.) " AVill you accept for Law whatever the court declares such ? " This is riddling No. 3. Still the judge finds threc-and-twcnty 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 Hights of man and for the Natural Law of God that they would riot jn-event 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 iti 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 ]\Iassachu- setts, 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 seci^et ; 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 ! " 1 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 1 See other forms of Oath in 8 St. Tr. 759, 772. 84 TKIAL BY JURY. 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 govern- ment. 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 "Su- preme 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 per- suasion 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. Bat 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 legis- lator 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 as Nebuchad- nezzar's dream. The court is the assembly of magicians, astrolo- gers, sorcerers, and Chaldeans to restore it. Congress might pass a law compelling ex-judges, ex-senators, and ex-representatives — who are so numerous now-a-days, 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, drunli with brandy or rage, he may have a personal interest in promoting the law, and may notoriously twist it so as to gratify his peculiar or familistic spleen, still the jury is 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. lA)r though the grand-jury is " the country," the judge is not only all that, and more so; but is "the rest of mankind" besides. ThiMi the judge goes further — talks solcmni//, yet familiar ; to whee- dle jurors the better, he mixes himself with them, his " We" embracing CASE OF JUDICIAL USUKPATIOIS''. 85 both jndgc 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 wliicli jurors, as well as judges, are exposed, is the uiijjopulartti/, or ohnoxioitsness . . . 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 ofrensive one." " AVhilc we . . . arc holding the scales as well as the sword of Justice, in Jnimhle biutation of the Divine Jiulge on high," it is our duty to '■'■let law, an 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 indioiduul caprices or fancies or speculations [that is, our convictions of justice'] to defeat its due course and triumph." We must not " disregard laics, when disliked, because we can, under the universal suffrage enjoyed here, otherwise help legally to change or annul them by our votes." "As jurors ?/o?/ have sworn to obey them till so changed, and ouglit to stand by them faithfully, to the last moment of their existence." " We are safest in our capacity of public oflicers . . . to execute the laws as they are [right or wrong], while others who n^ay make or retain bad laws in the statute-book, are answerable for their own tcrong. If they preserve laws on the statute-book, which are darkness rather than light aud life to the people, theirs is the fault, [that is, if a blacksmith make a dagger, and tell us to stab an inno- cent man with it, we naust 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 laics and punishments are tcrong, and hence venture to encoui;age others iu disobedience by neglecting to indict and punish offenders, it should make us pause and halt when it is remembered, it may turn out that tee ourselves 7nay not be exactly Sulons 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 disre- gard it ; " " government will become a curse ; " " and this whether such a betrayal of puhtic trust springs from the delusions of false philanthropy or fanatical prejudices, no less than ichen 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 conscien- tious 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 per- form ; " [as if the juror swore to do injustice !] " or if a majority prove unaccommodaLing or inflexible against us, then it behooves these differing from them . . . to withdraic entirely from such a government, and emigrate.'" [So the juror must not try to do jus- tice 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 presumptio7is are that all laws, si-.ne- tioned by such intelligent, numerous, and respectable members of society as compose our legislative bodies, are constitutional, and until pronounced otherwise by the proper tribunal, tlie judiciary, it is perilous for j urors to disobey them," [that is, to refuse to execute them] " and it is trifling M'ith their solemn obligations to disregard them in any toay and on any occasion, from constitutional doubts, unless of the clearest and strongest character." ^ 1 The above extracts are from Judge Woodbury'^ charge to the Grand-Jury, in Ch-cuit Court of United States, at Boston, taken from the Eveniny Traveller, copying the reprint of Boston Daily Advertiser, of October 25, 1850. 86 TRIAL BY JURY. He then tells them that no feeling' of Hamanili) 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 deter- mine." 1 A cruel laiv is to be enforced as vigorously as a humane one ; an unjust law as a just one; a statute which aims to defeat the pur- pose 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 injlexible.^^ "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, there- fore, who have the strongest convictions of the immorality of the insti- tution of slavery, are not thereby authorized to conclude that the pro- vision for delivering vp 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 ice obey, the laiu of man, or the Will of God?^ I answer, 'Obey both I' The incompatibility which the question as- sumes [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 Wis- dom permits poUlicul society, havmg 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 ' Words of Chief Justice Parker, in CommonwenltU vs. Griffith, 2 riokcring's Re- ports, 19, cited witli approbation by Cbief Justice Shaw, in the Sims case, 7 Cushing's Keporls, 70j,and also cited Ironi him and acted on by fugitive slave bill Commissioner Loring, in the Burns case. CASE OF JUDICIAL USURPATION. 87 "having the power" to forge steel and temper it, to nnake 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 I] " 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 lo 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 happi- ness]. 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 informing his oivn moral judg- ment ;^^ [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 ;^^ '•'■io obey the laics of the land [no matter what laws, or how wicked soever] is, then, to obey the Will of God I " 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, 1851.1 Gentle- men, I showed you what Thurlow could say at Home Tooke's trial on the 4th of July, 1777. Nay, I quoted the words of Powis and Allybone, and Scroggs and Jeffreys.^ But, Gentlemen, the judge of New England transcends the judges of Old England. 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 pia-pose of the government, or the special purpose of his private vengeance or ambition. Thus, a. Out of the whole comj^lex of law — statutes, decisions, customs, charges, opinions of judicial men, since the Norman conquest or be- fore 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 terrce, the Law of the ^ See Boston Daibj Advertiser of March 19, 1851. - See above, p. 33, 37, et al. 88 TRIAL BY JURY. 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 there- with 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 Twys- den," or " my Lord Chief Justice Kelyng." Thus the Judge constructs the Jury — out of such men as he washes 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 7nai/ 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 learn- ing, and such unblemished integrity as that of the present attorney (lion. 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 Ciesar's wife of democratic virtue, — spotless and unsus- pected ; never seeking office, yet alike faithful to his principles and his party; and with indignant foot spurning the Administration's bootless bribi', — the fact outtravcls fancy. Nay, Gentlemen, it is something CASE OF JUDICIAL USURPATION. 89 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 shonld 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 gov- ernment;" 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 piit 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 vengeance! H. 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 Jnry with no hard individual lumps of solid personal independence. They take the oath which you have just taken, Grentlemen : " 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 laiv does not mean (a) accord- ing to the whole complex which is called " Laiv,^^ 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 90 TRIAL BY JURY. 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 ofTice, and are guilty of " Perjury," and reads them the statute for the pun- ishment 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 Constitution- ality, 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 Jus- tice, that purpose of all law. Thus can tyranny be established — while all the forms of law are kept.^ 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 (Ran- dol[)h) Nason, a descendant of both Mr. Jeflerson and Mr. IMadison, — for Virginia, I am told, can boast of many children descended from two Presidents, perhaps from three, who " lioast tlie pure blood of an ilhistrlous race, In (juiet How from Lucrccc to Lucrecc " — ' See 1 Jiiixliiie, C'riuiiiial Triali*, 110. 2 i'arker's Sermous, 2GG and note. UNITED STATES VS. NASON. 91 from Saxon master to African slave, — is still the bondwoman of the Hon. James, the father of her son Thomas. From the " Plan- tation 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 fi'male 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 restor- ing the union of master and slave. l\Ir. 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. Commis- sioner Curtis telegraphs the news to Washington, — announcing a " NEW CASE OF TREASON — more 'levying warl'" 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 trea- son of this terrible Thomas Nason, who will blow up the Constitu- tion 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 Rob- bins 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 dol- lars that 1 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 92 TKIAL BY JURY. it, "drawn as Juror" — and then a "true bill" is found, Mr. Hallett actually making an indictment that cannot be quashed I 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 govern- ment, 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) Presi- dent of all this land I 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 Knallbiichse ! 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 Trea- son, 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," " con- quer 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 CIn-istians 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 GJod." (5.) But they have a simple question of fact to determine ; namely. Did the Defend- ant resist officer Butnuin in the manner set forth ? If satisfied of that, they must find him guilty. No mistaken notions of Justice must induce; (hem to refuse their verdict — for they are not to make the law, but only iielp execute it; and liieir conscience is so " fallible, especially when the rights of others are concerned, and may lead them UNITED STATES VS. NASON. 93 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 pri'.'ate, " Religion has nothing to do with politics," and this is a political trial. If there be any injustice in the law and its execu- tion 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 oiun minidcr and the statement of several partisan newspapers published in the very heat of the election, when men, and especially politicians looking for oflice, never exag- gerate, — 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 terrtc, 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 I 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."^ But it is not a cruel or an unchristian thing to require a negro lay- man 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 en- lightened sects in Christendom, has publicly offered to send his own freeborn mother into bondage for ever I 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 Free- man hangs the man — to the great joy of the Commissioners and the Marshal's guard who vacate the brothels once more and attend on that occasion and triamph 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 ^ See Hon. Judge Curtis's Speech at the Union Meeting in Faueull Hall, Xovembcr 26, 1850. 94 TRIAL BY JURY. 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 Eev. 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-steal- ing, — 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 in- telligence — 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 hus- band, — 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 extrav- agant 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 per- son : 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 crimi- nal cases between the l^nblic 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 TIIllOCKMORTOX AND TENN'. 95 wherewith the government seeks to work lis 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 tlie government and the (loliath of injustice, appoint- ed its champion to defy the Law of tlx; living (:Jod, 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 jary fall back on their original rights, judge of the Fact, the Law, and the Ap- plication 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 dis- tinguished family, was brought to trial for high treason. He had held a high military office under Henry VIII. and Edward VL, 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 ; where- upon the court shut the livelve 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 de- ma nded.^ 2. In September, 1670, William Penn, afterwards so famous, and William Mead, were brought to trial before the Lord Mayor of Lon- ^ See the case in 1 St. Tr. 8G9, and 1 Jardine, 40, also 115. The great juridical attacks upon English Liberty -were directed against the Person of the Subject, and ap- pear 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. 96 TRIAL BY JURY. don, 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 exceed- ingly insolent and overbearing, interrupting and insulting Ihe defend- ants continually. The jury found a special verdict — "guilty of speaking in (3rrace Church Street." The judge sent them out to re- turn 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 dis- missed 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 Cor- pus 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.^ 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 wit- nesses, attempting to make out a case against the Earl. But the jury returned the bill with Ignoramus on it, and so found no indict- ment. 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 ' Si. Tr. 051 ; Dixon's Life of renn ; 22 St. Tr. 925. THE SEVEN BISHOPS. 97 could not make a soldier or seaman ; so these kings [the Stuarts] though theij could make whatjiidg-es the/j pleased to do their business, yet could not make a g-rand-Jurij.''^ For the grand-juries were returned by the Sheriffs, and the sheriffs were chosen by the Livery, the cor- poration 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.^ 4. Next comes the remarkable case of the Seven Bishops, which I have spoken of already.^ You remember the facts. Gentlemen. The king, James II., in 1688, wishing to overturn Protestantism — the bet- ter 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 con- srresations. The kins: 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." 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 con- sciences — commit the offence of publishing a seditious libel; and, Shall they be punished for that act ? All the judges but two, Hollo- way 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 Eng- land 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 Bishoj:) Barnet, " There were immediately very loud acclamations throughout West- minster Plall, 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." ^ " Every man seemed transported with joy. Bonfires were made all ' 8 St. Tr. 759, see the valuable matter in tlie notes, also 2 Ilallam, 330 and notes. = See above, p. 32. M2 St. Tr. 430. 9 98 TRIAL BY JURY. 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." ^ " When the Bisliops 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 I 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 Mur- ray, 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 com- menting thereon. For this an information was laid against him, charging him with publishing a " wicked, false, scandalous, seditious, and malicious libek" On the trial, the Attorney-General, Ryder, thus delivered him- self:— " What ! — shall a person appeal from that Court, wlio 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 foct, and to stigmatize the House." " Then he charges the House with sinking material evidence ; %Yhich 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, insti- gated 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 jmblished the pamphlet, ^^ the rest folloivs 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 ' liurnet's Own Times, 470. Sec also 2 Campbell, Justices, 89, et seq. OWEN AND MILLER. 99 opinion, that the Jury ov^ht to find iJie defendant gnilU) ; for he thought \hc fact nf publication ic as full ij 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 thinlc the evidence is not sufficient to con- vince you that Oiven did sell the book? The foreman stuck to his general verdict, " Not guilty," " Not guilty ; " and several of the jury- men 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." ^ Of course the insolent Attorney-General was soon made " Lord Chief Justice," and rode the bench after the antiquated routine. 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.^ Solicitor-General Thurlow, — whom you have met before. Gentle- men, — 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 1 IS St.. Tr. 1203; 14 Pari. Hist. 888, 1003; 3 Hallam, 200; 2 Campbell, Justices, 198. 2 ;0 St. Tr. 803, 895, 869; Woodfall's Junius (Bohu, 1850), Preface, p. 94, Appendix, p. 471; 2 Campbell, Justices, 363; 5 Mahon. 100 TRIAL BY JURY. this paper, thoy do . . . annihilate and destroy the hbcrty of all men, more or less. Undoubtedly the man that has indulged the libcrti/ of robbing upon the hi/jhwu//, 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 con- cerning the great officers of State, concerning the public aifairs 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 senti- ments of the English nation upon the other.' For God's sake is that no libel ? To talk of the Mnrj as talincj a part of an hostile sort against one branch of his subjects, and at the same time to connect Jiim . . . icith the p)arliaincnt ichich he calls a renal jictrlia- ment ; 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 cliarged by the informa- tionV " 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 fo?'th in the information;^^ "but you do not give an opinion . . . ivhether it is or not laiuful to print a paper ... of the tenor and mean- ing 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 Dailtj 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 deter- mine 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 I 7. Next, CJciitlciiicii, I will relate a few cases in which Ww. govern- ment set all justice at defiance and clove down the right of speech, REIGN OF TERROR IX ENGLAND. 101 commonly packing snbmissive juries. In 1790 and fallowing 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 three- fold 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 ad- niircTs whom no courts could silence. Nay, at first the French Revolu- tion 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, scien- tific, and political men, and about thirty members of Parliament. Great complaiiits were made in public at the inequality of Representa- tion 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." 9* 102 TRIAL BY JURY. At that time the House of Commons was mainly filled with crea- tures of a few jDovverful men ; thus 91 commoners elected 139 mem- bers 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 na- tional grievances must be suppressed, in Parliament and out of Par- liament." 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 advertise- ment in the London IMorning Chronicle, with which they were t:on- nected 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, scan- dalous, and seditious libel." The government made every effort to secure their conviction. But it failed.^ (2.) The same year, Duffm 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 wnll 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 Eu- rope." They also w^ere indicted for a " wicked, infamous, and sedi- tious fibel," and found guilty. Lloyd was put in the pillory I- (3.) In 1793, Rev. William Frend, of. the University of Cambridge, published a harmless pamphlet entitled " Peace aild Union recom- mended to the associated bodies of Republicans and anti-Republi- cans." He was brought to trial, represented as a " heretic, deist, infidel, and atheist," and by sentence of the court banished from the university.'^ 1 22 St. Tr. 023. ■ 2 St. Tr. 1793. " 22 St. 'I'l'. ■"):'.'!. — So late as 1820, the chief justice puni.slicd an editor with a fine of .£500, for puljlisliiii}^ an account of a trial for high treason. See 33 St. Tr. 15G4, also 22 St. Tr. 298; 2 Campbell, Justices, 363, 371 et al. REIGN OF TERROR IN ENGLAND. 103 (4.) The same year, John Frost, Esq., " a gentleman " and attorney, when slightly intoxieated after dinner, and provoked by oth(>rs, 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 discjuiet mind, and of a seditious disposi- tion, 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 iii Newgate, and one hour in the pillory! He must find sureties for good behavior for iive years, himself in XoOO, two others in £100 each, be imprisoned until the sureties were found, and be struck from the list of attornies! ^ (5.) Rev. William Winterbotham, the same year, in two sermons, ex- posed some of the evils in the constitution and administration of Eng- land, and for that was fined £200, and sentenced to jail for four years, — a good deal more than $300 and twelve months' imprisonment.^ (G.) 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 XlOO, and sent to jail for a year.^ (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 /o/*/o?/r years I A surgeon and a physician were sent to Newgate for two years for having '■'■ seditious libels in their possession^ Thirteen per- sons were indicted at once.* (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 perish- ing liberty, and the recovery of our long lost rights." He distributed 1 22 St. Tr. 4 71. = Ibid. 823. ^ lb. 903. * Ibid. 471. Wade, Brit. Hist. (1847), 582, et scq. 104 TRIAL BY JURY. 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.^ (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 educa- tion 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. IMuir 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 Soci- ety 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 com- plained of the government of England as " costly," the monarchy as "useless, cumbersome, and expensive," that he advised persons to read Paine's Rights of INIan, and circulated copies of a periodical called " the Patriot,''^ which complained of the grievances of the peo- ple. On trial he was treated with great insolence and harshness, rep- rimanded, 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 arc two tilings which you should attend to, which require no proof. The first is that tlie British Constitution is the lest in the ivorUl ! " ."Is not every man secure in /lis life, liberty, and property? Is not happiness in the poiver of every vian? ' Does not every man sit safely under his own vine and fig-tree ' and none shall make bim afraid ? " " The other circumstance ... is the state of the countrj'^ during last winter, ^'here iras 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 . . . amon" the lower classes of the peojde . . . indncing tJiem to believe that a reform was absolutely necessary, to preserve tlieir safely and their liberty, which, had it not been for 1 23 St. Tr. 2.37; Bclsliura's History of George III. REIGN OF TERROR IN ENGLAND. 105 him, they never would have suspected to have been in danger." " He ran a parallel between the Fi-ench and English Constitutions, and talked of their respective taxes . . . and gave a preference to the French." " lie has brouglit many witnesses to prove his general good behavior, and his recommending peaceable measures, anil petitioning to Parliament." " Mr. Muir might have known that no attention could be paid to such a rabble, tchat riyht had they to representation? lie 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, tchich alone has a ri/jht to be represented." Gentlemen, you might tliink this speech was made by the " Castle Garden Ck)mmittee," 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 ex- posure to be torn to pieces by ivild 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." ^ For like offences several others underwent the same or similar punishment. But these enormities were perpetrated by the govern- ment in Scotland — where the Roman Law had early been intro- duced and had accustomed the Semi-Saxons to forms of injus- tice 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 pro- ceeded 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 correspond- ence Bill;" next the " Habeas Corpus Suspension Act;" and then the " Seditious Practices Act," with the " Treasonable Attempts Bill " by legislative exposition establishing constructive treason I 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.^ He opposed all attempts to reform the law which punished with death a 1 23 St. Tr. 117; 30 Pari. Hist. 1486, for Adams' Speech in Commons. * 30 Pari. Hist. 581 ; 31 Pari. Hist. 520, 920, 1153, et al.; 32 Park Hist. 370. 106 TRIAL BY JURY. 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.i 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 v/hat 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 w^ere seized and locked up in the most loathsome dungeons of the kingdom, with in- tentional malignity confined amongst the vilest of notorious criminals. The judges wrested the law, constructing libels, seditions, " misde- meanors," treasons — any crime which it served their purpose to forge out of acts innocent, or only rash or indiscreet. Juries were packed by bribed sheriflfs, and purchased spies were brought in evidence to swear away the liberty or the life of noble men. One of the govern- ment witnesses was subsequently convicted of ten perjuries ! No man was safe who dared utter a serious word against George III. or I\Ir. 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 pre- vailed 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. i/z a compiracy 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 [)r('paratioii for force.^ Thomas Hardy, a shoemaker, was first brought to Irial. 'J'hc trial began October 28, 1794, just sixty years ' 7 Caiii]>l((H, 11 D ; 1 Townscnd's Judges ; Life of A'ic. Gibbs. * C Campbell, SCO. REIGN OF TERROR IN ENGLAND. 107 before Mr. Curtis's grand-jury found a bill against me. Sir Joini Scott, the attorncy-genoral, in opening the Proscicution, made a spcctli 7ilne liours' lot/'J. « Wharton, 45, G88 ; Chase's Trial, 33 ; 4 JelTerson, 445, 44 7. ALIEN AND SEDITION LAWS. 119 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 Con- stitution ; " and the judge exclaimed, "a non scqintur, Sir I" "Sit down, Sir I" 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 wheth(U- 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 be- lieve, without very strong and indubitable })roof, 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 Zoca/ 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, " / discharged every person under punishment, or prosecution, under the Sedition Laiv, because I con- sidered and now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall doivn and worsliip a golden imaged ^ .Judge Chase was impeached by the Plouse 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, recpires two thirds. Judge Chase escaped by this provision. But his influence was gone. 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 ^ 4 Jefferson, Correspondence in Wharton, 721. 120 TRIAL BY JURY. 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 uncon- stitutional, null, and void, passed under a mistaken exercise of undele- gated power, and that the mistake ought to be remedied by returning the fine so obtained, with interest thereon." ^ .Just now, Gentlemen, Judge Chase and the principles of the Sedition Law appear to be in hidi favor with the Federal Courts : but one day the fugitive slave bill will follow the Alien and Sedition Bill, and Congi-ess 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. Gentlemen, allow me to vary this narrative of British and Ameri- can 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,^ " 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 investi- gation 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. Gervinus was seized and brought to trial on the 24th of February, 1853, at Mannheim, charged with publishing a work against consti- tutional 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 cir- cumscribes the dignity of this Honorable Court; he did not wish the people to hear Gervinus's dcTence. But I will read you some ex- tracts from tiie preface to the English translation of his book: — " I ofTcr notliiiif]; purely tliooretical or speculative, and as few opinions and conclu- sions as can possibly he given in a historical narrative. The work finally reaches a 1 2 Sc88. 2Cth, CoiiR. Doc. 8C, IIo. IJcp.; Wharton, 314, G79. Sec also Virginia Resolutions (1850), ftns. Your Honors' Opinion as Men or as Moralists has no bear- ing on the question. Your Honors are to declare what the Law deems moral or iran)oral." Gentlemen, that needs no comment ; tiiis trial is comment enough. But according to that rule no law is immoral. It was "not immoral" in 1410 to hang and burn 1hirty-nine men in one day for reading the MESSRS. CURTIS SEEKING TO ENSLAVE A GIRL IN 1836. 159 Bible in English; the Catholic Inquisition in Spain was " not im- moral ; " 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 Bar- tholomew 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 Man- kind, and that the inhabitants of this Province are unalienably en- titled to these essential Rights in common with all men, and that no law of Society . . . can divest them of these Rig-hts^ 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 Hea\pn, 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 laiv 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 iviU pvt the lohole force of the Com- monwealth at his disposal, to remove Ids 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. 160 UNITED STATES VS. THEODORE PARKER. He adds still further, by quotation, " I have no doubt but the citi- zen 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 attend- ance 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 ivhich is permitted and sanctioned iy tTie 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 influ- ence ? " " 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 Pennsj-lvania, Rhode Island and New Jersey, have actually enacted statutes allowing precisely that privilege." ^ 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, [al- lowing masters to bring and hold slaves therein,}fend it would seem thsit so7ne such pro- vision 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 peo- ple 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 ac- tively," and establish slavery in Louisiana, or in Kansas. It may be said, this was only a lawyer pleading for his client. It was — a law- yer 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 equeiUy 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 nmrder men. Surely it is as innocent to urge men to kidnap blacks in Africa as in Boston. ' Med. Case, 183G. MESSRS. CURTIS SEEKING TO ENSLAVE A OIRL IN 1836. 161 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 Stat- utes? If Mr. Curtis's doctrine is correct, then Franklin, Hancock, Adams, Washijigton, were only llebels and Traitors! They refused that " Standard of Morality." Nay, our Puritan Fathers were all " criminals ; " the twelve Apostles committed not only " rjiisdemean- ors " but sins ; and Jesus of Nazareth was only a malefactor, a wanton disturber of the public peace of the world I The slave child Med, poor, fatherless, and unprotected, comes before the Supreme Court of Massachusetts, claiming her natural and un- alienable 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 im- moral ; " 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 griev- ousness 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 tbe 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 hons dy'd in blood ; 14* 162 UNITED STATES VS. THEODORE PARKER. And crusla the serpents in the dust ; As empty chaff, when whirlwinds rise, Before the sweeping tempest Hies, 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, pledg- ing 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 ex- press 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 " raptur- ously received " at the Revere House, April 29, 1850, by a " great mul- titude," 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 '■'■ eminenllij vigilant, wise, and faith- fid to his country, ivithout a shadoiv 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 I 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 Adcertiser. 0. In Novcmb(!r, 1850, the slave-hunters, thus invited and encour- aged, came to Boston, seeking to kidnap William and Ellen Craft: but they in vain applied to Commissioner Benj. F. Ilallett, 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 anticipa- ted fsistancc, and considered it very important that the Marshal siionld have iriorc support than it was in his power as a Commissioner to aUbrcl, he procured a meeting of the Connnissioners, four in num- MESSRS. CURTIS KIDNAPPING THE CRAFTS. 163 ber, 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 refresh- ing your memory with such pieces of history. " An application [for a warrant to arrest Mr. Craft] had already been made to tlie judges []\Iessrs. '\\'oodbury and Spragne] j^-ivately . . . they could not grant a war- rant on account of the pendency of an important Patent Cause then on trial belbre 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 tiic judges to receive this application and to hear ihe 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. Ilallett, Mr. Edward G. Loring, ^Mr. C. L. Woodbury, and Mr. G. T. Curtis] the jury were dis- missed at «m ea?-/i(?r /iowr /Ao/i //.sv/a/, . . . and every jierson present except the Mar shars deputies left the rooui, and the doois rcere 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 INIarshal ... in the execution of which he might be called upon to break open diL-elling-houses, and perhaps take life, by quelling resistance, actual or threatened." "I devoted at once a good deal of time to the neces- sary 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 dis- turbance." 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 newspa- pers. 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.^ But, spite of this opinion, public justice and the ' 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. 164 UNITED STATES VS. THEODORE PARKER. Vigilance Committee forced the (Southern) slave-hunters to flee from Boston, after which, Mr. and Mrs. Craft left America to find safety in Eno-land, the evident rage and fierce threats of the disappointed Boston slave-hunters making it unsafe for them to remain. 8. After the failure of this attempt to arrest Mr. Craft, Thomas B. Curtis got up a " Union Meeting " at Faneuil Hall, November 26, 1850.1 r^l^Q 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.^ It was. said at the time that they were written, wholly or in part, by Mr. Benjamin R. Curtis, who moved their adop- tion and made a long and elaborate speech thereon. 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 ex- pedient ; 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 liere 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." "Everv sovereign State has and must have the right to judge lohat 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 loill of the legislative poiver of the State. [Massa- chusetts 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 hack if they come?" " To deny this is to deny the right of self-preservation to a State. ... It . . . throws us hack at once into a condition helow 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 llicir posterity." " In no other way could wc become an example of, and security for, the (•ai)a<:Ity of man, safi^ly and peacefully and wisely to govern himself under free and pojjular 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." ' See Mr. Curtis's letter in Daily Advertiser of Febmiaryj^?, 1855. '' Sec above, p. 148, 149. MESSRS. CURTIS AND THE UNION MEETING. 165 He adds, as early as 1643 the New England colonies found it necessary "to insert an article substantially lilvc this one," for the ren- dition of fugitive servants, and in 1789 the Federal government de- manded that the Spaniards should surrender the fugitive slaves of Georgia. Injustice, Gentlemen, has never lacked a precedent since Cain killed Abel. Mr. Curtis continues: — " Wlien I look abroad over 100,000 happy homes in j\Iassachusetts and sec a people, such as the blessed sun has raiely shone uf;on, so intelligent and educated, moral, re- ligious, 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 tcill 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 hack if they came." So the refusal to kidnap Ellen and William Craft came of the "passionale vnlV of the people, and is likely to ruin the happy homes of a moral and religious people ! "1T7^/?. 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 his- tory of mankind, represents the finalJudge 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 I 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 tliat_^au article 166 UNITED STATES VS. THEODORE PARKER. of the Constitution [the rendition clause] of the United States ' shall not be executed, law or no law.' A gentleman olTered a resolve .... that ' constitution or no consti- tution, law or no law, we will not allow a fugitive slave to be taken from Massachu- setts.' 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 nothino- wanting to exhibit the madness which has possessed men's minds, murder and perjunj 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 punish- ment is a fine of one thousand dollars and Imprisonment for six months. I am drawn to serve as a juror and pass upon this oifence. 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 sup- pose, 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 unaUenable 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 ? " Gentle- men 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 " PEiuuRY ? " 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 : — »' Sujtposf, 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 wnnig to keep, and will not keep, and does not intend to keep." SIIADRACn, SIMS, AND THE JUDGESHIP. 167 Gentlemen, when that speech came to be printed — there was no charge of " perjury " at all, but a quite dillerent sentence ! ^ 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 tele- graphed the news to Mr. Webster, at Washington, declaring " it is levying war;" thus constructing high treavson 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 kid- napping 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 sufler 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 befjie Judge Woodbury, on habeas corpus, Benjamin R. Curtis appeared as counsel for the Mar- shal, 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 1S51, 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 ^ See the speech in Boston Courier of November 27th, with the editoi-ial comment, and in Daily Advertiser of 2Sth, Thanksgiving Daij. See also the Atlas of November 27th. The Sermon is in 2 Parker's Speeches, 241. 168 UNITED STATES VS. THEODORE PARKER. 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 prob- ably be sent back; held him ironed in his "court," and finally deliv- ered 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 per- suaded him it would be dishonorable to decline the office of kidnap- ping 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 " opin- ion" 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 j^resumptive 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 lliat he still continued the business of man-hunting at the old stand, whcri; nil orders for ki(lnapi)ing would be promptly attended to. l^'or, he says, there was a statement "that 1 had declined, or was unwilling or afraid to act. 1 did not choose that MESSRS. CURTIS AND LORIXG. 169 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." ^ Did he remem- ber the fate of the Hebrew Judas, who " betrayed the Innocent Blood," and then cast down the thirty pieces ? 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 moutli 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 com- mendation, 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 com- mon life. I know that they have often been open-handed and gen- erous 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 men- tion 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 qual- ities 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 prin- ciples of despotism ; they have recommended, enforced, and practif^cd kidnapping in Boston, and under circumstances most terribly atro- cious. Without their eflbrts we should have had no man-stealino; 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 ^ See Boston Journal of May 29, and Boston Courier of June 7, 1854. 15 170 UNITED STATES VS. THEODORE PARKER. steal ]\Ir. 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 con- sistency 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 evi- dence 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 chil- dren after them." ^ Mr. Thomas B. Curtis considers some of the acts I have just mentioned " among the most meritorious acts " of his life.'-^ Mr. Loring, in his " Remonstrance," justifies Kidnapping ! 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 is a sad tale that I have pre- sented. 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 anotlier criminal law of the United States to which I must call your atten- tion, and give you in charge. It was enacted on the 13th of April, 1700, and is in the following words : — " ' If any person shall knowingly or wilfully obstruct, resist, or oppose any ofllccr 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 ollicer, or other person duly authorized, in serving or executing any writ, rule, order, process, or war- rant, aforesaid, su(,h person shall, on conviction, be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars.' 1 New York Tribune, .January 15, 1865. '^ Daily Advertiser, February 7, 1855. JUDGE CURTIS'S CHARGE. 171 " You will observe, Gentlemen, that this law makes no provision for a ease 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 pimished under the laws of the State, within whose jurisdiction the odence is committed. Over that offcmce against the laws of the State of IMassachusctts we have here no jurisdiction. It is to be pre- sumed 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 }0u, to obstruct, resist, or oppose, or beat, or wound any odicer of the United States, or other person duly authorized, in serving or execut- ing' 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 inriuire. " 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 obstructln"- le^al 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 Avhich is not to be obstructed. " The language of the Act is very broad. It embraces every legal process whatso- ever, whether issued by a court in session, or by a judge, or magistrate, or commissioner acting in the due administration of any laAv 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, AvilfuUy 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 contem- plated 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 com- plete, 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 w-hom ; and this renders it necessary for me to instruct }-ou con- cerning the kind and amount of participation which brings individuals within the com- pass 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 af- fording 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 172 UNITED STATES VS. THEODORE PARKER. 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 de- gree, 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 pursu- ance of the same rule, not only those who are present, but those who, thougli absent when the offence was committed, did procure, counsel, command, or abet others to com- mit 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 advis- ing or counselling another as will be sufficient to constitute this legal element in the ofience. It is laid down by high authority, that thoitgh a mere tacit acquiescence, or words, which amount to a bare permission, will not be sufficient, yet such a procure- ment 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 com- mit 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 Commomcealth v. Bowen (13 Mass. K. 359), which was an indict- ment 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 commis- sion 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 de- praved character furnishes ground to believe tliat 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 prede- termined upon the commission of this crime, the seasonable admonitions of a disci'eet and respected friend would probably tend to overthrow his determination. On the other liand,t]ie counsel of an unprincipled wretch, stating the heroism and courage the sclf-niurdcnjr 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 sucli advicr-, the presumption is that Jewett was so influenced. lie might have been influenced l)y 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 tlic advice was nearl}- connected, in point of time, with the criminal act, it is, in JUDGE CURTIS'S CHARGE. 173 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 efiect, 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. Tlie circumstances, or direct proof, may or may not be sufficient to control this presumption ; and whetlier 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 sub- stantive offence to Avhich 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 Ihdt the precise time, or jjlace, 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 sub- stantive offence conuuitted. If he did, it is of no importance that his advice or direc- tions 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 ofience of obstructing process of the United States has been committed ; if it has, you will present for trial all such persons as have so partici- pated therein as to be guilty of that ofience. 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 Ave 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 couutrj- is governed by laws, con- stitutionally 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 faith- fully 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 be- comes all to remember, that forcible and concerted resistance to any law is civil war, which can make no progress but throusjh bloodshed, and can have no termination but 174 UNITED STATES VS. THEODORE PARKER. tlie 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."^,- Now gentlemen look at some particulars of this charge. 1. " If a multitude of persons shall assemble even in a public high- iva?/, with the design to stand together, and thus prevent the officer from passing freelij along that ivaij, 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 pun- ished with imprisonment for twelve months and a fine of three hun- dred dollars: '■'■ All ivho are present, and obstruct, resist, or oppose, are of course guiltyP Their " design " is to be inferred from " the fact " that the officer was obstructed. That is not all, this oftence in technical language the Judge calls a " misdemeanor," and in " misdemeanors," he says, " all are principals." So, accordingly, not only are 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 en- gaged, 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 icho though absent when the otlence was committed, did procure, counsel, command, or abet olhers to commit the offence are indictable as prin- cipals." 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 ele- ment in the offence." First he constructs the physical act which is the misdemeanor, namely, standing in the high road and thereby hin- dering 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. ' Law lleportcr, August, 1854. JUDGE CURTIS'S CHARGE. 175 " Such a procurement may he, either by direct means, as by hire, coun- sel, or command, or indirect", by evincing' an express liking, approba- tion, or assent.''^ Thus the mere casual expression, " I wish Burns would escape, or I wish somebody would let him out," is a " Mis- demeanor;" it is "evincing an express liking." Noddhig 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 im- plied liking for: ^'•it need not appear that Ute precise time, or place, or means advised, were iisedP Accordingly, he that " evinces an express liking," " is responsible for all that ensues upon its exenftiony 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 ivarranto against all Freedom of Speech. But supjjose 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 I" 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 j^ear! Well, there were fifteen thousand persons "assembled" "in the highway" of the city of Boston that day opposed to kidnapping; half the news- papers 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 176 UNITED STATES VS. THEODORE PARKER. 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.^ 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 Tvvysden 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 ivere 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.^ 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 ! 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 princij)le 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 Statvite law, not a Custom of the People, not the Opinion of a Court solemnly pro- nounced. 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.^ " Memorandmn, 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." (i<'iit!('inen of the Jury, that charge no more settled the law even in 1031, 1li;m Judge Sprague's charge telling \he grand- jury to '■'• obf'u bolh^' \\\v law of God and the law of man which is ex- ' 2 Parker's Ailditioiiul, 280. ^ g^g j^i^oy^.^ p_ ^ j 2. ' Page 52. See above, p. 112. SOURCES OF JUDGE CURTIS'S " LAW." 177 actly opposite thereto, settled the law of the United States and the morality of the People. But yet tliat is all the law the governirient had to hang Bowen with. The jury made nothing of it.^ But Kelyng's Reports are of no value as authority. Here is what Lord Campbell, now Chief Justice of the King's Beneh, 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, ivhich are of no value whatever except to make us lavg'h at some of the silly eg;otisms inith which they aboumV'^ Tvvysden, who showed him the Report of the charge, is of little value, and of no authority. I men- tioned his character before. • 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,^ 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 mem- ory," 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." * 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 be- cause 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 XL, and in 1667 the " Grand Com- mittee of Justice " in the House of Commons, after examining wit- nesses and hearing him on his own behalf, reported: — 1. " Tliat tlie proceedings of the Lord Cliief Justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that lie hath used an arbitrary and illegal power which is of dangerous consequence to the lives and libei'- ties of the people of England." 2. " That in place of Judicature, the Lord Chief Justice hath undervalued, vilified, and condemned Magxa Ciiakta, the great preserver of our lives, freedom, and property." 3. " That the Lord Chief Justice be brought to trial, in order to condign punish- ment, in such manner as the House shall judge most fit and recjuisite."-' ■1 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. 2 2 Campbell's Justices, 406. s Above, p. 23. * Pari. Hist. 290; 3 St. Tr. 844, 1181, 162; 2 Echard, 186. s See above, p. 23, 39, 113, 125; 1 Campbell, Ibid. 406; 6 St. Tr. 76, 229, 171, 532, 709, 879, 992 ; Pepy's Diary, 17 Oct., 1667 ; Commons Journal, 16th Oct., 1667. 178 UNITED STATES VS. THEODORE PARKER. Some of the lawyers whom he had browbeaten, generously inter- ceded 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 i^reat relief of all who had any regard foi' 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 "rulihgs" 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.^ 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, im- peached even in that age — of Charles 11. ; — 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 mur- derer 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 I 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 .Tones and Kelyng on the Bench ; no, not without Saunders and Finch, and Jeflreys 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. F'or, ahis! there was a grand-jury, and the Salmonean thunder of the fugitive slave bill judge fell harmless — quenched, conquered, dis- graced, and brutal, — to the ground. Poor fugitive slave bill Court! It can only gnash its teeth against freedom of speech in Fanueil Hail; only bark and yelp against the mialienable rigiits of man, and ' 1 AVharton, C3G; Kolyng, 1-21, 70-77 ; G St. Tr. 879. THE TWO GRAND-JURIES. 179 howl against the Higher Law of God ! it cannot bite ! Poor, imbe- cile, malignant Court! What a pity that the fugitive slave bill judge was not himself the grand-jury, to order the indictment I what a shame that the attorney was not a petty jury to convict I 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 w^omen ; and human heads might have decked the pinnacles all round the town ; and Judge Curtis and Attorney Hallett might have had their j)lace 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 ! ^ 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 A merica," I said : — " Perhaps the Court Avill try again, and find a more pliant Grand- Jury, easier to in- timidate. 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 sum- moned ; 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? Gentle- men 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 I " Of course " he went and 1 2 Parker's Additional, p. 281. 180 UNITED STATES VS. THEODORE PARKER. asked Judge Sprague to excuse him, and the Judge would 'nt let him offi " Well, Gentlemen, I suppose it was a " miracle ; " such a mira- cle as delivered the old or the new Shadrach ; a " singular coinci- dence ; " a " very remarkable fact." You will agree with me, Gentle- men, that it was a ver?/ 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 prece- dent 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-Ju- ror, 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,^ "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 AtlorneyP Thus he delegated the duty of expounding the law to a man who is not a judicial officer of the United States. 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 dis- tinguished for kidnapping ever since 1832, the Brother-in-law of the Judge, is made one of that Grand-Jury ; he is so hostile and malig- nant as to refuse my friendly salutation when offered as usual ; and on the jury is "most active of all in his efibrts to procure an indict- ment," 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. Hal- lett, 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 tt) 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 Slave- holder;" he d(!fended Slavery with all his legal learning, all his per- sonal miglit. Yes, wlien other weapons failed him he extemporized a new gospel, and into the mouth of Jesus of Nazareth, — who said, ^ Evening Traveller, Oct. IG. THE COURT THAT DENIES THE LAW OF GOD. 181 " 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 I " 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 meet- ing 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 I 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 kid- napped, defending them with a word in Faneuil Hall ! " No tyranny so secure, — none so intolerable, — none so danger- ous, — 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 import- ance of such courts — that to advance and establish their system of oppression, they never rest imtil they have completely corriqited 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." ^ But Gentlemen, — when the fugitive slave bill is "/«?/;," when the judges are selected for their love of Slavery and their hatred of free- dom — men who invent Scripture to justify bondage, or who as Law- yers 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 * Quinov's Quincy, 68. 16 182 UNITED STATES VS. THEODOKE PARKER. 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." ^ 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 capi- tal 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 I Here is a remarkable case of constructive crime, worthy of this Honorable Court. It is the famous case of Dux v. Cunrade et Boracio. Honorable Judge Dogberry thus delivered his charge to the Grand Inquest, " Masters, I charge you accuse these men," — one police-man 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, vUlain." The next member of the Mar- shal's guard deposed that Boracio had said, " That he had received a thousand ducats of Don John for accusing the Lady Hero wrong- fully." Chief Justice Dogberry decided, " Flat Burglary as ever was committed." Sentence accordingly.^ 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 " mis- demeanors all are principals." I have committed a great many mis- demeanors; 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 Mar- shals 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. ' Gazette, Feb. 10, 1772. ^ 2 Singer's Shakspcarc, 192. MR. PARKEll'S SPEECHES AGAINST THE FUGITIVE SLAVE BILL. 183 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 FreeSoilers; " No, it was not quite time, and we are not strong enough." At last the old aboli- tionists came together. Mr. Phillips made a magnificent speech. Here arc 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 Pliiladelphia, and is here before us now. She is not so dark as Mr. Webster him- self, 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 caitiif. and on his decision hurry her ofi" 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 Avoman 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 xlpril, 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 ! Hldlculous talk ! Does Mr. "Webster suppose that such a law could be executed In Boston ? that the people of IMassachusetts will ever return a single fugitive slave, under such an act as that V Then he knows his constituents very little, and proves that he needs " In- struction." " 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 reanuex all the West Indies • delinquent representatives cannot 184 UNITED STATES VS. THEODORE PARKER. save it ; uniiistructed senators, refusing instructions, cannot save it, no, not with all their logic, all their elo(iuence, which sautes as an earthquake smites the sea. No, slavery cannot be saved ; by no compromise, no non-intervention, no IMason's Bill in the Senate. It cannot be saved in this age of the world until you nullify every ordi- nance 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, reenact tlie 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." ^ Gentlemen, that speech was a " seditious libel" by construction I 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 proceed- ings!' 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 reenact 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."" 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: Country- men and friends ! You see hoAv 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; rcmcmb(!r there is a law of (Jod, the higher law of the universe, the Everlasting Right : I thought so once, and now I know it. Remember that you are 1 2 Occasionul Siiceclies, IG'l, ICO, and 172. ^ Ibid, 207, 208. THE FUGITIVE SLAVE BILL AND THE LAW OF GOD. 185 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 onl}' of a man." ^ 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 oflTicer I " 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 can- non 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 di-owning, 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. lie 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 pur- pose. 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 be- fore ? 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 en- slaved this man's father, have you a natural right to enslave his child ? The same rio^ht you would have to murder a man because you butchered his father first. The ri