[Footnote 151: 2 Campbell, Judges, 406.]

* * * * *

Gentlemen of the Jury, I will now mention some cases of gross injustice perpetrated by the Federal Courts of the United States.

The tenth article of amendments to the Constitution provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People." The Constitution itself confers no Common Law Jurisdiction on the Government. Neither the People nor their Representatives had ever decreed the Common Law of England to be a part of the law of the United States. Yet, spite of the absence of positive enactment and the express words of the above amendment to the Constitution, the Supreme Court at once assumed this jurisdiction. In 1799, Chief Justice Ellsworth said, "the Common Law of this country remains the same as it was before the Revolution;"[152] and proceeded on that supposition to exercise the powers of English Judges of Common Law, undertaking to punish men for offences which no Act of Congress forbid. You see at once what monstrous tyranny would follow from that usurpation. Had the English Common Law power of punishing for "seditious libel," for example, been allowed to the Federal court, Gentlemen, you know too well what would follow. But this monstrous assumption was presently brought to an ignominious end; and strange as it may appear, by one of the judges of the court itself. Samuel Chase of Maryland, one of the signers of the Declaration of Independence, had been an Anti-Federalist and a strong State-Right's man, as such insisting on a strict construction of the Constitution. Singular as it may appear he was made a Judge in 1796, and what is yet more surprising, in 1798, declared "the United States as a Federal government, had no Common Law," and thus ended this claim.[153] But tyranny did not end; nay, he himself, a man of uncommon powers and legal attainments, became a most atrocious example of Judicial despotism.

[Footnote 152: Wharton, State Trials, 653. See too Virginia Resolutions (Richmond, 1850), Preface, xiii. et seq.; Virginia Resolutions by Madison, and his Report thereon; Kentucky Resolutions by Jefferson, in 4 Eliot's Debates (1836).]

[Footnote 153: Wharton, 197; 3 Dallas, 384; see 5 Hildreth, 230.]

1. In 1791 a direct tax was levied by Act of Congress on all lands and houses; excise officers were to ascertain their value. The "Alien and Sedition Laws" were also passed the same year. The execution of the law relative to the direct tax was resisted in Northampton county, Penn., and some prisoners rescued from an officer of the United States. The President, Mr. Adams, issued his proclamation. In 1799 John Fries was arrested on the charge of treason. The overt act alleged was resistance to that one special law of Congress. Judge Iredell charged the Grand-Jury, "You have heard the government as grossly abused as if it had been guilty of the vilest tyranny." Had he read the private correspondence of the Cabinet, he might have found other specimens of "abuse." He defended both the Alien and Sedition Laws.—They were "constitutional" and "proper."[154]

[Footnote 154: See a defence of them in 2 Gibbs's Administration, 74, 78; also 162.]

Mr. Fries was indicted for treason. The Judiciary Act of Congress of 1789 provides that "in cases punishable with death the trial shall be had in the county where the offence was committed; or when that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." The offence was committed in Northampton county, and he was indicted and brought to trial in Philadelphia county, nor could the court be induced to comply with the statute!

The government laid down the law and constructed treason with the usual ingenuity of officials working by the job. Judge Kelyng's loose opinion that an attack on a brothel was high treason, was cited by Mr. Rawle, the District Attorney, as good law.[155] What "in England is called constructive levying of war, in this country must be called direct levying of war." Judge Peters charged that though force was necessary to constitute the crime of treason, yet "the quantum of force is immaterial," of course it may be wielding a wheat straw, or a word, I suppose. "The doctrine of constructive treason has produced much real mischief in another country" [England]. "The greater part of the objections to it are irrelevant here."

[Footnote 155: Wharton, 539; Kelyng, R. 70, 75.]

Fries was found guilty. His counsel moved for a new trial, on the ground that before the trial one of the jurors had declared, "Fries ought to be hung;" "I myself shall be in danger unless we hang them all;" that the jurors were irregularly drawn, and the trial was not held in the county where the offence was committed. Judge Iredell ruled that it was "a high contempt at this time to call for a renewal of an argument whereon a solemn, decisive opinion was delivered." Judge Peters declared the juror had "said no more than all friends to the laws and the government were warranted in thinking and saying." Yet a new trial was granted.

The new trial was held before Judge Chase, who had, as Mr. Wharton says, a "singular instinct for tumults which scents it at a distance ... and irresistibly impels a participation in it," "moving perpetually with a mob at his heels." Yet "apart from his criminal jurisdiction he was reckoned a wise and impartial judge, a master of the Common Law, and a thorough and indefatigable administrator of public functions." "It was this despotic ardor of temperament ... which made him, when a young man, employ with resolute audacity the engine of popular revolt, and which led him when older, and when in possession of that power against which he had so steadily warred, to wield with the same vigor the sword of constituted authority."[156] Gentlemen, he was like many that this Honorable Court perhaps have known, who were privateering Democrats in 1812, and Kidnapping Whigs in 1850. To him we are indebted for the invaluable decision that the United States courts have no Common Law jurisdiction.

[Footnote 156: 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419.]

At this new trial he treated the defendants' counsel in such a manner that they abandoned the case, and left the Prisoner without defence. The District Attorney, taking his law from Kelyng and similar servants of British despots, laid it down that treason "may consist in assembling together in numbers, and by actual force, or by terror, opposing any particular law;" "Force need not be used to manifest this spirit of rebellion." "Even if the matter made a grievance of was illegal, the demolition of it in this way was, nevertheless, treason," "a rising with intent by force to prevent the execution of a law ... preventing the marshal executing his warrants, and preventing the other officers ... amounted to levying war." "In short an opposition to the acts of Congress in whole or in part [that is to any one law] ... either by collecting numbers, or by a display of force ... which should operate ... either throughout the United States, or in any part thereof to procure a repeal or a suspension of the law ... this offence be considered to be strictly treason."

Judge Chase laid it down as law not to be questioned in his court, "that any ... rising of any body of the people ... to attain by force ... any object of a great public nature ... is a levying of war:" "any such ... rising to resist ... the execution of any statutes of United States ... or for any other object of a general nature or national concern, under any pretence as that the statute was unjust ... or unconstitutional is a levying war;" "any force ... will constitute the crime of levying war."

If that be law, then an old negro woman who, with a dishcloth, frightens officer Butman away from kidnapping her granddaughter in Southac street, does thereby levy war against the United States and commits the crime of treason.

The jury, overborne by the assumptions of the judge, or ignorant of their duties and their rights, allowed this tyrannical court to have its way, surrendered the necks of the people, and brought in a verdict of guilty. Judge Chase made an insolent address to the prisoner and sentenced him to death. But Mr. Adams, with a remarkable degree of justice, gave him a full pardon, and drew down upon himself thereby the wrath of his cabinet.[157]

[Footnote 157: Wheaton, 458; 9 Adams's Works, 57; 2 Gibbs, 360; 5 Hildreth, 366; Chase's Trial, 18.]

2. In 1788 Mathew Lyon, a native of Ireland, a Revolutionary soldier, a member of congress, and editor of a newspaper in Vermont, was brought to trial under the Sedition Law, for a false, malicious, and seditious libel. He had published in his newspaper a somewhat severe attack on the Federalists then in power. The article, alleged to be "seditious," was a letter written and mailed at the seat of government seven days before, and published nine days after, the passage of the Sedition Law itself. It was as much a political trial, Gentlemen, as this—purely political. Judge Patterson—United States Circuit Judge of Vermont—charged that the jury had nothing whatever to do with the constitutionality of the Sedition Law. "Congress has said that the author and publisher of seditious libels is to be punished." "The only question you are to determine is ... Did Mr. Lyon publish the writing?... Did he do so seditiously, with the intent of making odious or contemptible the President and government, and bringing them both into disrepute?"

Mr. Lyon was found guilty, and punished by a fine of $1,000 and imprisonment for four months. The "Seditious Libel" would now be thought a quite moderate Editorial or "Letter from our Correspondent." His imprisonment was enforced with such rigor that his constituents threatened to tear down the jail, which he prevented.[158]

[Footnote 158: Wharton, 333; 4 Jefferson's Works (1853), 262.]

3. In 1799 Thomas Cooper, a native of England, residing at Northumberland, Pennsylvania, published a handbill reflecting severely on the conduct of President Adams. He was prosecuted by an Information ex officio, in the Circuit Court for Pennsylvania, and brought to trial before Judge Chase, already referred to, charged with a "false, scandalous, and malicious attack" on the President. Mr. Chase charged the jury, "A Republican government can only be destroyed in two ways: the introduction of luxury, or the licentiousness of the press. This latter is the more slow, but most sure and certain means of bringing about the destruction of the government." He made a fierce and violent harangue, arguing the case against the defendant with the spirit which has since become so notorious in the United States courts in that State. The pliant jury found Mr. Cooper guilty, and he was fined $400 and sent to jail for six months. He subsequently became a judge in Pennsylvania, as conspicuous for judicial tyranny as Mr. Chase himself, and was removed by Address of the Legislature from his seat, but afterwards went to South Carolina where he became Professor at her college, and a famous nullifier in 1830.[159]

[Footnote 159: Wharton, 659.]

4. In 1799, or 1800, Mr. Callender, a native of England, then residing at Richmond, in Virginia—a base and mean fellow, as his whole history proved, depraved in morals and malignant in temper—published a pamphlet called "The Prospect before us," full of the common abuse of Mr. Adams and his administration. He was indicted for a false, malicious, and seditious libel, and brought to trial before Judge Chase who pressed the Sedition Law with inquisitorial energy and executed it with intolerant rigor.[160] As he started for Richmond to hold the trial, he declared "he would teach the lawyers in Virginia the difference between the liberty and the licentiousness of the press." He told the marshal "not to put any of those creatures called Democrats on the jury,"—it does not appear that he had his own Brother-in-Law on it however;—"he likened himself to a schoolmaster who was to turn the unruly boys of the Virginia courts over his knee and give them a little wholesome chastisement."

[Footnote 160: Wharton, 45, 688; Chase's Trial, 33; 4 Jefferson, 445, 447.]

Some of the ablest lawyers in Virginia were engaged for the defence. But they could not secure any decent regard to the common forms of law, or to the claims of justice. He would not grant the delay always usual in such cases, and indispensable to the defence. He refused to allow the defendants' counsel to examine their most important witness, and allowed them to put none but written questions approved of by him! The defendant was not allowed to prove the truth of any statements, alleged to be libellous, by establishing the truth of one part through one witness and of another through a different one. He would not allow him to argue to the jury that the law was unconstitutional. "We all know that juries have the right to decide the law as well as the fact, and the Constitution is the Supreme law of the land." "Then," said Mr. Wirt, "since the jury have a right to consider the law, and since the Constitution is law, it is certainly syllogistic that the jury have a right to consider the Constitution;" and the judge exclaimed, "a non sequitur, Sir!" "Sit down, Sir!" Mr. Wirt sat down. The judge declared "a right is given to the jury to determine what the law is in the case before them, and not to decide whether a statute is a law or not, or whether it is void, under an opinion that it is unconstitutional." "It appears to me the right now claimed has a direct tendency to dissolve the Union." "No citizen of knowledge and information ... will believe, without very strong and indubitable proof, that Congress will, intentionally, make any law in violation of the Federal Constitution." "If such a case should happen, the mode of redress is pointed out in the Constitution." It was obvious that Congress had made laws in violation of the Constitution, and he insisted that the jury should enforce those laws against their own conscience. After all his violent injustice he of course declared "the decisions of courts of justice will not be influenced by political and local principles and prejudices." The packed jury found the prisoner guilty. He was fined $200 and sent to jail for nine months.

But Virginia was too high-spirited to bear this. Nay, Gentlemen of the Jury, the whole Nation then was too fond of justice and liberty to allow such wickedness to proceed in the name of law. "Virginia was in a flame;" the lawyers "throughout the country were stung to the quick." They had not been so long under the slave-power then as now. At this day, Gentlemen, such conduct, such insolence, yet more oppressive, rouses no general indignation in the lawyers. But then the Alien and Sedition Laws ruined the Administration, and sent Mr. Adams—who yet never favored them—from his seat; his successor, Mr. Jefferson, says, "I discharged every person under punishment, or prosecution, under the Sedition Law, because I considered and now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image."[161] Judge Chase was impeached by the House of Representatives, tried by the Senate, and only escaped condemnation by the prejudice of the political partisans. As it was, a majority were in favor of his condemnation. But the Constitution, properly, requires two thirds. Judge Chase escaped by this provision. But his influence was gone.

[Footnote 161: 4 Jefferson, Correspondence in Wharton, 721.]

The Alien and Sedition Laws, which sought to gag the People, and make a Speech a "misdemeanor," soon went to their own place; and on the 4th of July, 1840, Congress passed a law to pay Mr. Lyon and others the full amount of the fine and costs levied upon them, with interest to the date of payment: a Committee of the House had made a report on Lyon's case, stating that "the law was unconstitutional, null, and void, passed under a mistaken exercise of undelegated power, and that the mistake ought to be remedied by returning the fine so obtained, with interest thereon."[162] Just now, Gentlemen, Judge Chase and the principles of the Sedition Law appear to be in high favor with the Federal Courts: but one day the fugitive slave bill will follow the Alien and Sedition Bill, and Congress will refund all the money it has wrenched unjustly from victims of the Court. There is a To-morrow after to-day, and a Higher Law which crushes all fugitive slave bills into their kindred dust.

[Footnote 162: 2 Sess. 26th, Cong. Doc. 86, Ho. Rep.; Wharton, 344, 679. See also Virginia Resolutions (1850), and the remarks in the Debates. Then Virginia was faithful to State Rights, and did a service to the cause of Liberty which no subsequent misconduct should make us forget.]

* * * * *

Gentlemen, allow me to vary this narrative of British and American despotism by an example from a different nation. I will refresh you with a case more nearly resembling that before you; it is an instance of German tyranny. In 1853, Dr. Gervinus, Professor of History in the University of Heidelberg in Germany, published this little volume of about 200 pages,[163] "An Introduction to the History of the 19th Century." Mr. Gervinus is one of the most enlightened men in the world, a man of great genius for the philosophical investigation of human history, and enriched with such culture and learning as is not common even in that home of learned men. His book, designed only for scholars, and hardly intelligible to the majority of readers even in America, sets forth this great fact,—The democratic tendency of mankind shown in all history.

[Footnote 163: 2 Einleitung in die Geschichte des neunzehnten Jahrhunderts; Leipzig, 1853. 8vo. pp. 181.]

Gervinus was seized and brought to trial on the 24th of February, 1853, at Mannheim, charged with publishing a work against constitutional monarchy, intending thereby to depose the lawful head of the State, the Grand Duke Charles Leopold, and with changing and endangering the constitution, "disturbing the public tranquillity and order, and incurring the guilt of High Treason." In short he was charged with "obstructing an officer" and attempting to "dissolve the Union," with "levying war." For his trial the judge purposely selected a small room, though four times larger than what now circumscribes the dignity of this Honorable Court; he did not wish the people to hear Gervinus's defence. But I will read you some extracts from the preface to the English translation of his book:—

"I offer nothing purely theoretical or speculative, and as few opinions and conclusions as can possibly be given in a historical narrative. The work finally reaches a period when the Present and the Future become its subject, and when therefore it can no longer relate any events of history which have been completed; and is confined to the simple statement of the Fact that opposite opinions exist, and may yet be advanced, concerning the problem of the Future. These opinions are themselves weighed against one another, but their value is not determined by dogmas, or phrases, or declamations, but simply by facts. If the balance incline towards a more liberal form of government, towards democratic institutions, and therefore towards self-government, and the participation of the many rather than of the few in the affairs of the State, I am not to blame, nor is it my ordinance, but that of History and of Providence. My work is only (what all historical narrative should be) a vindication of the decrees of Providence; and to revolt against them appears to me neither pious in a moral point of view, nor wise in a political. That which is proved by the most remarkable facts of History, will not be altered in the smallest degree by the suppression of my work, or by my condemnation. The charge on this head is an absurdity, since no rational end can be attained by it. It aims at the suppression of a truth which, should I not tell it, will be ever louder and louder proclaimed by the Facts of History.

"To believe such a thing possible is a proof how limited an idea exists of the eager inquiry going on after knowledge—and truth, the source and origin of all knowledge. There will always be so eager a demand for a history of the Present time, that, even should I be prevented, ten others would arise, only to proclaim the louder, and to repeat the oftener, the truth which is here suppressed. To believe that the philosophy of History can be silenced by persecution, argues an entire ignorance even of the external mechanism of philosophy. A political pamphlet, intended to serve a particular purpose at a particular period, may be suppressed. The author of such a pamphlet, bent on agitation, can easily console himself for its suppression. It has cost him little time and trouble; it is only a means to an end, one means out of many means, any of which, when this is lost, will serve the author as well. But it is not thus with philosophical works, it is not thus with the work before me. This book is deeply rooted in the vocation of my whole life, and is the end of my philosophical research; I have prepared myself for it by the labor of years, and the labor of years will be necessary for its completion. I have reached a time of life when I can neither change my vocation, nor even cease to labor in this vocation. I am also so imbued with my philosophy, that even if I could change I would not. I may be hindered in the prosecution of this work for four months, but in the fifth I shall return to it. For a judicial sentence cannot arrest (like a mere pamphlet) the philosophical scheme interwoven into a whole existence."

"If it is possible that this 'Introduction' can be condemned in Germany, that it can be prohibited, that by these means the work should be strangled in its birth, then the philosophy of history has no longer a place in Germany. The tribunal of Baden will have given the first blow, in pronouncing judgment on a matter which is purely philosophical, and Germany, whose freedom of philosophical research has been her pride and her boast, of which even the various administrations of the nation have never been jealous, will receive a shock such as she never before sustained."

"My book is on so strictly a philosophical plan, and treats of such comprehensive historical questions, that, properly, no judgment of any value could be pronounced upon it but by the professed historian, of whom there are not two dozen in all Germany. Among them there has not, to this hour, been found one competent to give an opinion in a few weeks on a book which is the fruit of half a life. On the other hand, there was soon a whole set of fanatical partisans and obstreperous bunglers in a neighboring press, who in eight days had condemned this work, in some instances, by calling it an historical commonplace, and in others, a political pamphlet with 'destructive tendencies.' At the same time, and in a manner easily accounted for, under the influence of such an expression of public opinion, and almost before any other could make itself heard, accusations were made against the book, and it was confiscated. Let no one take it amiss if, in the urgency of my defence, I for a moment lay aside modesty, as far as such modesty might prove injurious to my cause. My work demonstrates a law of historical development, which I do not claim as my property, or as originating in me, but which has been demonstrated more than two thousand years ago by the greatest thinker of all ages, derived from observations on the history of the Grecian State. To repeat a law which has been already demonstrated, ought to appear but a trifling circumstance, and indeed might merit the term of an historical commonplace; we could even suppose that it might be mentioned in a popular as well as in a philosophical book. Nevertheless this law has scarcely been twice repeated in the course of two thousand years, and then only by two imitators, who scarcely understood its whole purport, though they were the most thinking heads of the most thinking nations—Machiavelli in Italy, and Hegel in Germany. I solemnly ask of the whole philosophical world if my words can be gainsaid, and to name for me the third, by whom the Aristotelian law, of which I speak, has been repeated and understood. I have ventured to consider the thought of Aristotle, and to apply it to the history of modern European States, and I found it confirmed by a series of developments which have occupied two thousand years. I also found that the whole series of events confirmatory of this law (itself deduced from experience) are not yet entirely fulfilled. Like the astronomer, who, from a known fraction of the path of a newly discovered planet, calculates its whole course, I ventured to divine that which is still wanting, and which may yet take centuries to complete. I turned silently to those whose profession was the study of history, to prove the justice of my calculations; I handed my book over to coming generations and coming centuries, with the silent demand, when the required series of events shall be fulfilled, then to pronounce the final sentence, whether this law, and its purport as now explained, be just or not. This is the philosophical character, and these the contents of my book—no more than was indispensably necessary to make this calculation. And now comes the charge, and pronounces that in the character of a pamphleteer, I have endeavored to excite a revolution in the Grand Duchy of Baden, or in the German Confederation."

On the 8th of March—it should have been the fifth—the thing came to a close. On account of "his hostility to constitutional monarchy, and his declaration of its weakness, his denial of its good-will [towards the people], and his representing that the American Democracy was a universal necessity and a desirable fact," sentence was pronounced against him, condemning him to an imprisonment of four months, and ordering his book to be destroyed. There was no Jury of the People to try him! Here our own Court has an admirable precedent for punishing me for a word.[164]

[Footnote 164: See Preface to English Translation of Gervinus (London, 1853); and Allg. Lit. Zeitung fuer 1853, pp. 867, 883, 931, 946, 994, 1131.]

But even in Massachusetts, within twenty years, an attempt was made to punish a man for his opinions on a matter of history which had no connection with politics, or even with American Slavery. In July, 1834, Rev. George R. Noyes, a Unitarian Minister at Petersham, a retired scholar, a blameless man of fine abilities and very large attainments in theological learning, wrote an elaborate article in the Christian Examiner, the organ of the "Liberal Christians" in America, in which he maintained that Jesus of Nazareth is not the Messiah predicted in the Old Testament. "It is difficult," said this accomplished Theologian, "to point out any predictions which have been properly fulfilled in Jesus." Peter and Paul found the death and resurrection of Jesus in the 16th Psalm, but they "were in an error," which should not surprise us, for "the Evangelists and Apostles never claimed to be inspired reasoners and interpreters;" "they partook of the errors and prejudices of their age in things in which Christ had not instructed them." "The commonly received doctrine of the inspiration of all the writings included in the Bible, is a millstone hung round its neck [the neck of Christianity], sufficient to sink it."

The article was written with remarkable candor and moderation, and indicated a devout and holy purpose in the author. The doctrines were by no means new. But Hon. James T. Austin, was then Attorney-General of the State; his attention being called to it by an anonymous writer in a newspaper, he attacked Mr. Noyes's article, thus giving vent to his opinion thereon: "He considers its learning very ill bestowed, its researches worse than useless, and that its tendency is to strike down one of the pillars on which the fabric of Christianity is supported." "Its tendency is to shock the pious,—confound the unlearned,—overwhelm those who are but moderately versed in the recondite investigations of theology, and above all to open an arsenal whence all the small wits of the infidel army may supply themselves with arms. Its greater evil is to disarm the power of public opinion." "It certainly disarms to a great degree the power of the law."[165]

[Footnote 165: 16 Examiner, 321; 17 ibid. 127; Boston Atlas, July 8th and 9th, 1834.]

Gentlemen, suppose it had not been necessary to submit the matter to a Jury, what would the right of freedom of conscience be worth in the hands of such a man, "dressed in a little brief authority?" It was said at the time that the author was actually presented to the Grand-Jury, and an attempt made to procure an indictment for Blasphemy, or Misdemeanor. I know not how true the rumor was. The threat of prosecution came to nought, and Dr. Noyes, one of the most scholarly men in America, is now Professor of Theology in the Divinity School at Cambridge, and an honor to the liberal sect which maintains him there.

* * * * *

Gentlemen, when laws are unjustly severe, denouncing a punishment highly excessive, the juries refuse to convict. Examples of this are very common in trials for capital offences, now that the conscience of moral men has become so justly hostile to the judicial shedding of blood. There is no doubt with the Jurors as to the Fact, none as to the Law; but they say it is unjust to apply such a law to such a fact and hang a man. The Jury exercising their moral discretion, spite of the judge, and spite of the special statute or custom, are yet faithful to their official obligation and manly duty, and serve Justice, the ultimate End and Purpose of Law, whereto the statutes and customs are only provisional means. Foolish judges accuse such juries of "Perjury;" but it is clear enough, Gentlemen, where the falseness is.

"Do you take notice of that juryman dressed in blue?" said one of the judges at the old Bailey to Judge Nares. "Yes." "Well, then, take my word for it, there will not be a single conviction to-day for any capital offence." So it turned out. The "gentleman in blue" thought it unjust and wicked, contrary to the ultimate Purpose of law, to hang men, and he was faithful to his juror's oath in refusing to convict. Of course he did not doubt of the Fact, or the Law, only of the Justice of its Application. One day there will be a good many "gentlemen in blue."

To prevent this moral independence of the jury from defeating the immoral aim of the government, or of the judges, or the legislature—the court questions the jurors beforehand, and drives off from the panel all who think the statute unfit for such application. Gentlemen, that is a piece of wicked tyranny. It would be as unfair to exclude such men from the legislature, or from the polls, as from the jury box. In such cases the defendant is not tried by his "country," but by a jury packed for the purpose of convicting him, spite of the moral feelings of the people.

Sometimes the statute is so framed that the jurors must by their verdict tell an apparent falsehood, or commit a great injustice. When it was a capital offence in England to steal forty shillings, and evidence made it plain that the accused had actually stolen eight or ten times that value, you all know how often the jurors brought in a verdict of "stealing thirty-nine shillings."[166] They preferred to tell what seemed to be a lie, rather than kill a man for stealing fifteen or twenty dollars. The verdict of NOT GUILTY would have been perfectly just in form as in substance, and conformable to their official oath.

[Footnote 166: See several cases of this kind in Sullivan on Abolition of Punishment of Death, (N.Y. 1841), 73. Rantoul's Works, 459.]

Gentlemen, tyrannical rulers, and their servants, despotic and corrupt judges, have sought to frighten the juries from the exercise of all discretion—either moral or intellectual. To that end they threaten them before the verdict, and punish them when they decide contrary to the wish of the tyrant. To make the jurors agree in a unanimous verdict, they were kept without "fire or water or food or bed" until they came to a conclusion; if eleven were of one mind and the twelfth not convinced, the refractory juror was fined or put in jail.[167] If the verdict, when unanimously given, did not satisfy the judge or his master, the jurors were often punished.[168] I have already shown you how the juries were treated—with fine and imprisonment—who acquitted Throckmorton and Penn.[169] When John Lilburne was tried for his life in 1653, he censured the authorities which prosecuted him and appealed to the "honorable Jury, the Keepers of the Liberties of England:" they found him Not Guilty, and were themselves brought before the council of State for punishment. "Thomas Greene of Snow-hill, tallow chandler, Foreman of the Jury, being asked what the grounds and reasons were that moved him to find ... Lilburne not guilty, ... saith 'that he did discharge his conscience in what he then did, and that he will give no further answer to any questions which shall be asked him upon that matter.'"[170] This was in the time of Cromwell; but as the People were indignant at his tyrannical conduct in that matter, and his insolent attempt to punish the jurors, they escaped without fine or imprisonment. Indeed more than a hundred and twenty-five years before, Thomas Smith had declared "such doings to be very violent, tyrannical, and contrary to the liberty and customs of the realm of England." Sir Matthew Hale said at a later day, "It would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions; unhappy also for the prisoner; for if the judge's opinion must rule the verdict, the trial by jury would be useless."[171] Judge Kelyng was particularly hostile to the jury, throwing aside "all regard to moderation and decency." He compelled the grand-jury of Somersetshire to find an indictment against their consciences, reproaching Sir Hugh Wyndham, the foreman, as the "Head of a Faction." He told the jury, "You are all my servants, and I will make the best in England stoop!" He said it was a "misdemeanor" for them to discriminate between murder and manslaughter; that was for the court to determine. But, Gentlemen, it does not appear that he had his brother-in-law on that grand-jury. Several persons were indicted for "attending a conventicle;" the jury acquitted them contrary to his wish, and he fined them $334 apiece, and put them in jail till it was paid. On another occasion, this servile creature of Charles II. fined and imprisoned all the jurors because they convicted of manslaughter a man whom he wanted to hang. But for this conduct he was accused in the House of Commons, and brought to answer for it at their bar.[172]

[Footnote 167: Forsyth, 241, 243.]

[Footnote 168: Thomas Smith, Commonwealth, (London, 1589,) b. iii. c. 1. Hargrave, in 6 St. Tr. 1019.]

[Footnote 169: See above, p. 95. 1 St. Tr. 901; 6 St. Tr. 967, 969, 999; 21 St. Tr. 925.]

[Footnote 170: 1 St. Tr. 445.]

[Footnote 171: 6 St. Tr. 967, note; Bushell's Case, Ibid. 999, and Hargrave's note, 1013.]

[Footnote 172: 2 Campbell, Justices, 405; 6 St. Tr. 910; Kelyng, 50; 3 Hallam, 6, note; Commons Journals, 16 Oct. 1667.]

In 1680 Chief Justice Scroggs was brought up before the House of Commons for discharging "a refractory grand-jury"—such an one as was discharged in Boston last July: Sir Francis Winnington said, "If the judges instead of acting by law shall be acted by their own ambition, and endeavor to get promotion rather by worshipping the rising sun than doing justice, this nation will soon be reduced to a miserable condition." "As faults committed by judges are of more dangerous consequence than others to the public, so there do not want precedents of severer chastisements for them than for others."[173]

[Footnote 173: 4 Parl. Hist. 1224.]

But spite of the continual attempt to destroy the value of the trial by jury, and take from the People their ancient, sevenfold shield, the progress of liberty is perpetual. Now and then there arose lawyers and judges like Sir Matthew Hale, Holt, Vaughan, Somers, Camden, and Erskine, who reached out a helping hand. Nay, politicians came up to its defence. But the great power which has sustained and developed it is the sturdy and unconquerable Love of individual Liberty which is one of the most marked characteristics of the Anglo-Saxon, whether Briton or American. The Common People of England sent Juries, as well as regiments of Ironsides, to do battle for the Right. Gentlemen, let us devoutly thank God for this Safeguard of Freedom, and take heed that it suffers no detriment in our day, but serves always the Higher Law of the Infinite God.

Now, Gentlemen of the Jury, I come to the end.

IV. OF THE CIRCUMSTANCES OF THIS SPECIAL CASE, UNITED STATES VERSUS THEODORE PARKER.

Here, Gentlemen, I shall speak of three things.

(I.) Of the Fugitive Slave Bill.

At the close of the Revolution there was a contradiction in the national consciousness: the People were divided between the Idea of Freedom and the Idea of Slavery. There consequently ensued a struggle between the two elements. This has continued ever since the Treaty of Peace in 1783.

Twice the Idea of Freedom has won an important victory: in 1787 Slavery was prohibited in the North-West Territory; in 1808 the African Slave Trade was abolished. Gentlemen, this is all that has been done for seventy-two years; the last triumph of American Freedom over American Slavery was forty-seven years ago!

But the victories of Slavery have been manifold: in 1787 Slavery came into the Constitution,—it was left in the individual States as a part of their "Republican form of government;" the slaves were counted fractions of men, without the personal rights of integral humanity, and so to be represented by their masters; and the rendition of fugitive slaves was provided for. In 1792 out of old territory a new Slave State was made and Kentucky came into the Union. Tennessee followed in 1796, Mississippi in 1817, Alabama in 1819, and thus four Slave States were newly made out of soil which the Declaration of Independence covered with ideal freedom. In 1793 the Federal government took Slavery under its special patronage and passed the first fugitive slave bill for the capture of such as should escape from bondage in one State, and flee to another. In 1803 Louisiana was purchased and Slavery left in that vast territory; thus the first expansion of our borders was an extension of bondage,—out of that soil three great States, Louisiana, Missouri, Arkansas, have since been made, all despotic, with more than half a million of Americans fettered there to-day. Florida was purchased as slave soil, and in 1845 made a State with perpetual Slavery written in its Constitution. In 1845 Texas was annexed and Slavery extended over nearly four hundred thousand square miles of once free soil; in 1848 Slavery was spread over California, Utah, and New Mexico. Here were seven great victories of Slavery over Freedom.

At first it seemed doubtful which was master in the federal councils; but in 1820, in a great battle—the Missouri Compromise—Slavery triumphed, and has ever since been master. In 1845 Texas was annexed, and Slavery became the open, acknowledged, and most insolent master. The rich, intelligent, and submissive North only registers the decrees of the poor, the ignorant, but the controlling South; accepts for Officers such as the master appoints, for laws what the Slave-driver commands. The Slave-Power became predominant in American politics, business, literature, and "Religion."

Gentlemen of the Jury, do you doubt what I say? Look at this Honorable Court,—at its Judges, its Attorney, at its Marshal, and its Marshal's Guard: they all hold their offices by petty serjeantry of menial service rendered to the Slave-Power. It would be an insult to any one of this august fraternity to hint that he had the faintest respect for the great Principles of American Liberty, or any love of justice for all men. I shall not be guilty of that "contempt of court." Gentlemen, I had expected that this Court would be solemnly opened with prayer. I knew whom the Slave-Power would select as its priest to "intercede with Heaven." I expected to hear the Rev. Nehemiah Adams, D.D., ask the God he worships and serves to take "a South-side view of American Slavery" in general, and in special of this prosecution of a minister of the Christian Religion for attempting to keep the Golden Rule. Should the Court hereafter indulge its public proclivity to prayer, that eminent divine will doubtless be its advocate—fit mediator for a Court which knows no Higher Law.

Well, Gentlemen, that sevenfold triumph was not enough. Slavery will never be contented so long as there is an inch of free soil in the United States! New victories must be attempted. Mr. Toombs has declared to this noble Advocate of Justice and Defender of Humanity, [John P. Hale] who renews the virtuous glories of his illustrious namesake, Sir Matthew Hale, that, "Before long the master will sit down with his slaves at the foot of Bunker Hill Monument." But one thing disturbed our masters at the South—the concubine runs away from her lusty lord, the mulatto slave child from her white father; I have had the "best blood of Virginia," fugitive children of her "first families" in my own house, and have given many a dollar to help the sons and daughters of "Southern Democrats" enjoy a taste of Northern Democracy. The slaves would run away. The law of 1793 was not adequate to keep or catch these African Christians who heeded not the Southern command, "Slaves, obey your masters." The Decision of the Supreme Court in the Prigg case,[174] showed the disposition of the Federal Government, and took out of the hands of the individual States the defence of their own citizens. Still the slaves would run away. In 1849 there were more than five hundred fugitives from Southern Democracy in Boston—and their masters could not catch them. What a misfortune! Boston retained $200,000 of human Property of the Christian and chivalric South! Surely the Union was "in danger."

[Footnote 174: 16 Peters, 616.]

In 1850 came the fugitive slave bill. When first concocted, its author,—a restless politician, a man of small mind and mean character, with "Plantation manners,"—thought it was "too bad to pass." He designed it not for an actual law, but an insult to the North so aggravating that she must resist the outrage, and then there would be an opportunity for some excitement and agitation at the South—and perhaps some "nullification" in South Carolina and Virginia; and in that general fermentation who knows what scum would be thrown up! Even Mr. Clay "never expected the law would be enforced." "No Northern gentleman," said he, "will ever help return a fugitive slave." It seemed impossible for the bill to pass.

But at that time Massachusetts had in the Senate of the nation a disappointed politician, a man of great understanding, of most mighty powers of speech,—

"Created hugest that swim the ocean stream,"—

and what more than all else contributed to his success in life, the most magnificent and commanding personal appearance. At that time—his ambition nothing abated by the many years which make men venerable,—he was a bankrupt in money, a bankrupt in reputation, and a bankrupt in morals—I speak only of his public morals, not his private,—a bankrupt in political character, pensioned by the Money Power of the North. Thrice disappointed, he was at that time gaming for the Presidency. When the South laid down the fugitive slave bill, on the national Faro-table, Mr. Webster bet his all upon that card. He staked his mind—and it was one of vast compass; his eloquence, which could shake the continent; his position, the senatorial influence of Massachusetts; his wide reputation, which rung with many a noble word for justice and the Rights of man; he staked his conscience and his life. Gentlemen, you know the rest,—the card won, the South took the trick, and Webster lost all he could lose,—his conscience, his position, his reputation; not his wide-compassing mind, not his earth-shaking eloquence. Finally he lost his—life. Peace to his mighty shade. God be merciful to him that showed no mercy. The warning of his fall is worth more than the guidance of his success. Let us forgive; it were wicked to forget. For fifty years no American has had such opportunity to serve his country in an hour of need. Never has an American so signally betrayed the trust—not once since Benedict Arnold turned a less ignoble traitor!

Gentlemen, you know the speech of the 7th of March. You know it too well. He proposed to support the fugitive slave bill "with all its provisions, to the fullest extent." At that time this bill of abominations was worse than even now; for then it left the liberty of a man to the discretion not only of any judge or commissioner of any Federal court, but to any clerk or marshal thereof, nay, to any collector of the customs and every one of the seventeen thousand postmasters in the United States! It provided that an affidavit made before any officer empowered, by the United States or any State, to administer oaths, should be taken as conclusive evidence to prove a man a slave! So John Smith of some unknown town in Texas, might make affidavit before John Jones, a justice of peace in the same place, that Lewis Hayden, or Wendell Phillips, or his Honor Judge Curtis, was his (Smith's) slave, and had escaped to Boston: might bring hither John Brown, a Postmaster from Texas, or find some collector of the customs or minion of the court in Massachusetts, seize his victim, and swear away his liberty; and any man might be at once consigned to eternal bondage! All that the bill provided for,—and authorized the kidnapper to employ as many persons as he might think proper to accomplish his purpose by force, at the expense of the United States! All this Mr. Webster volunteered to support "to the fullest extent."

The bill was amended, here bettered, there worsened, and came to the final vote. Gentlemen, the Money Power of the North joined the Slave Power of the South to kidnap men in America after 1850, as it had kidnapped them in Africa before 1808. Out of fifty Senators only twelve said, No; while in the House 109 voted Yea. The Hon. Samuel A. Eliot gave the vote of Beacon and State Streets for kidnapping men on the soil of Boston. The one Massachusetts vote for man-stealing must come from the town which once bore a Franklin and an Adams in her bosom; yes, from under the eaves of John Hancock's house! That one vote was not disgrace enough; his successor [Hon. William Appleton] must take a needless delight in reaffirming the infamy. When the bill passed, Gentlemen, you remember how Mr. Webster rejoiced:—

"Now is the winter of our discontent Made glorious summer,"

was his public outcry on the housetop! And Boston fired a hundred guns of joy! Do you know who fired them? Ask Mr. Attorney Hallett; ask Mr. Justice Curtis. They can "instruct the jury."

Gentlemen, you know the operation of the fugitive slave bill. It subverts the Purposes of the Constitution, it destroys Justice, disturbs domestic Tranquillity, hinders the common Defence and the general Welfare, and annihilates the Blessings of Liberty. It defies the first Principles of the Declaration of Independence,—think of the fugitive slave bill as an appendix to that document! It violates the Idea of Democracy. It contradicts the very substance of the Christian Religion—the two great commandments of Love to God, and Love to man, whereon "hang all the Law and the Prophets." It makes natural humanity a crime; it subjects all the Christian virtues to fine and imprisonment. It is a lettre de cachet against Philanthropy.

Gentlemen of the Jury, you know the fugitive slave bill is unconstitutional. I need not argue the matter; it is too plain to need proof. See how it opposes Justice, the ultimate purpose of human law; nay, the declared objects of the Constitution itself! But yet its unconstitutionality has been most abundantly shown by our own fellow-citizens. I need not go out of Massachusetts for defenders of Justice and Law. You remember the Speeches of Mr. Phillips, Mr. Sewall, Mr. Rantoul, Mr. Sumner, Mr. Mann, the arguments of Mr. Hildreth. The judges before you by nature are able-minded men, both of them; both also learned as lawyers and otherwise well educated,—I love to honor their natural powers, and their acquired learning; would I could offer higher praise. Now, I will not insult their manly understanding with the supposition that either of them ever thought the fugitive slave bill constitutional. No, Gentlemen, it is not possible that in the personal opinion of Mr. Sprague, or even Mr. Curtis, this bill can be held for a constitutional law. But the Court has its official dress: part of it is of silk—or supposed to be,—the gown which decorates the outward figure of the man who wears its ample folds; it is made after a prescribed pattern. But part of it also is made of opinion which hides the ability and learning of the honorable Court. The constitutionality of the fugitive slave bill is a part of the judge's official dress: accordingly, as no federal judge sits without his "silk gown," so none appears without his "opinion" that the fugitive slave bill is constitutional. But if the court should solemnly declare that such was its personal opinion—Gentlemen of the Jury, I,—I—should not believe it—any more than if they declared the gown of silk was the natural judicial covering, the actual "true skin" of the judges. No, Gentlemen, these judges are not monsters, not naturally idiotic in their Conscience. This opinion is their official robe, a supplementary cuticle, an artificial epidermis, woven from without, to be thrown off one day, when it shall serve their turn, by political desquamation. Let them wear it; "they have their reward." But you and I, Gentlemen, let us thank God we are not officially barked about with such a leprous elephantiasis as that. You are to judge of its constitutionality for yourselves, not to take the purchased, official opinion of the judge as veil for your Conscience; let it hide the judges' if they like.

Gentlemen, I lack words to describe the fugitive slave bill; its sins outrun my power of speech. But you know the consequences which follow if it be accepted by the People, submitted to, and enforced: the State of Massachusetts is nothing; her courts nothing; her juries nothing; her laws nothing; her Constitution nothing—the Rights of the State are whistled away by the "opinion" of a fugitive slave bill judge, the rights of the citizen—all gone; his right to life, liberty, and the pursuit of happiness lies at the mercy of the meanest man whom this Court shall ever make a Commissioner to kidnap men. Yes, Gentlemen of the Jury, you hold your liberty at the mercy of George T. Curtis and Seth J. Thomas! You are the People, "the Country" to determine whether it shall come to this.

You know the motive which led the South to desire this bill,—it was partly pecuniary, the desire to get the work of men and not pay for it; partly political, the desire to establish Slavery at the North. Mr. Toombs is not the only man who wishes the master to sit down with his slaves at the foot of Bunker Hill Monument! You know the motive of the Northern men who supported the bill;—words are idle here!

Gentlemen, I said that Boston fired a hundred jubilant cannon when the fugitive slave bill became a law. It was only a part of Boston that fired them. The bill was odious here to all just and honorable men. Massachusetts hated the bill, and was in no haste to "conquer her prejudices" in favor of Justice, Humanity, and the Christian Religion; she did not like the "disagreeable duty" of making a public profession of practical Atheism. At first the yellow fever of the slave-hunters did not extend much beyond the pavements of Boston and Salem; so pains must be taken to spread the malady. The greatest efforts were made to induce the People to renounce their Christianity, to accept and enforce the wicked measure. The cry was raised, "The Union is in danger:" nobody believed it; they least of all who raised the cry. Some clergymen in the Churches of Commerce were coaxed, wheedled, or bought over, and they declared kidnapping would be imputed unto men for "righteousness." The actual man-stealer in Boston was likened to "faithful Abraham" in the Hebrew mythic tale,—"the rendition of a slave was like the sacrifice of Isaac." One Trinitarian minister, a son of Massachusetts, laid Conscience down before the Juggernaut of the fugitive slave bill, another would send his own mother into Slavery; both had their reward. Editors were brought over to the true faith of kidnapping. Alas, there were some in Boston who needed no conversion; who were always on the side of inhumanity. There were "Union meetings" called to save the Nation; and the meanest men in the great towns came to serve as Redeemers in this Salvation unto kidnapping. Mr. Webster outdid himself in giant efforts—and though old and sick, he wrought with mighty strength. So in the great poem the fallen angel, his Paradise of Virtue lost,—

——"with bold words Breaking the horrid silence thus began. 'To do aught good never will be our task, But ever to do ill our sole delight, As being the contrary to His high will Whom we resist.... Let us not slip the occasion.... But reassembling our afflicted powers Consult how we may henceforth most offend Our enemy; our own loss how repair, How overcome this dire calamity; What reinforcement we may gain from hope, If not what resolution from despair.'"

One class of men needed no change, no stimulation. They were ready to execute this unjust, this unconstitutional Act; their lamps were trimmed and burning, their loins girt about, their feet swift to shed blood. Who were they? Ask Philadelphia, ask New York, ask Boston. Look at this bench. The Federal Courts were as ready to betray justice in 1850 as Kelyng and Jeffreys and Scroggs and the other pliant judges of Charles II. or James II. to support his iniquities. I must speak of this.

* * * * *

(II.) Of the conduct of the Federal Courts.

Gentlemen of the Jury, that you may understand the enormity of the conduct of the federal courts and the peril they bring upon their victims, I must refresh your memory with a few facts.

1. I shall begin with the cases in Pennsylvania. In that State four officials of government have acquired great distinction by their zeal in enslaving men, McAllister, Ingraham, Grier, and Kane; the two first are "Commissioners," the latter two "Judges." In one year they had the glory of kidnapping twenty-six Americans and delivering them over to Slavery. Look at a few cases.

(1.) On the 10th of March, 1851, Hannah Dellam was brought before Judge Kane charged with being a fugitive slave. She was far advanced in pregnancy, hourly expecting to give birth to a child. If a convicted murderess is in that condition, the law delays the execution of its ghastly sentence till the baby is born, whom the gallows orphans soon. The poor negro woman's counsel begged for delay that the child might be born in Pennsylvania and so be free,—a poor boon, but too great for a fugitive slave bill judge to grant. The judge who inherits the name of the first murderer, disgraced the family of Cain; he prolonged his court late into night, that he might send the child into Slavery while in the bowels of its mother! Judge Kane held his "court" and gave his decision in the very building where the Declaration of Independence was signed and published to the world. The memorable bell which summons his court, has for motto on its brazen lips, "Proclaim Liberty throughout the Land, to all the inhabitants thereof."

(2.) The same year Rachel Parker, a free colored girl, was seized in the house of Joseph C. Miller of West-Nottingham, Chester County, by Thomas McCreary of Elkton, Maryland. Mr. Miller pursued the kidnapper and found the girl at Baltimore, and brought a charge of kidnapping against McCreary. But before the matter was decided Mr. Miller was decoyed away and murdered! The man-hunter was set free and the girl kept as a slave, but after long confinement in jail was at last pronounced free—not by the Pennsylvania "judge" but by a Baltimore Jury![175]

[Footnote 175: 20 Anti-Slavery Report, 28 and 21; Ibid. 34.]

(3.) The same year occurred the Christiana Tragedy. Here are the facts.

In Virginia a general law confers a reward of $100 on any man who shall bring back to Virginia a slave that has escaped into another State, and gives him also ten cents for each mile of travel in the chase after a man. Accordingly, beside the officers of the fugitive slave bill courts commissioned for that purpose, there is a body of professional Slave-hunters, who prowl about the borders of Pennsylvania and entrap their prey. In September, 1850, "a colored man, known in the neighborhood around Christiana to be free, was seized and carried away by professional kidnappers, and never afterwards seen by his family." In March, 1851, in the same neighborhood, under the roof of his employer, during the night, another colored man was tied, gagged, and carried away, "marking the road along which he was dragged by his own blood." He was never afterwards heard from. "These and many other acts of a similar kind had so alarmed the neighborhood, that the very name of Kidnapper was sufficient to create a panic."[176]

[Footnote 176: History of the Trial of Castner Hanway and others for Treason (Philadelphia, 1852), 35.]

"On the 11th of September, Edward Gorsuch, of Maryland, his son, Dickerson Gorsuch, with a party of friends, and a United States officer named Kline, who bore the warrant of Commissioner Ingraham, made their appearance in a neighborhood near Christiana, Lancaster County, Pennsylvania, in pursuit of a Slave. They lay in wait for their prey near the house of William Parker, a colored man. When discovered and challenged, they approached the house, and Gorsuch demanded his Slave. It was denied that he was there. High words ensued, and two shots were fired by the assailants at the house. The alarm was then given by blowing a horn, and the neighborhood roused. A party of colored men, from thirty to fifty strong, most of them armed in some way, were before long on the ground. Castner Hanway and Elijah Lewis, both white men and Friends, rode up before the engagement began and endeavored to prevent bloodshed by persuading both parties to disperse peaceably. Kline, the Deputy Marshal, ordered them to join the posse, which they, of course, refused to do, but urged upon him the necessity of withdrawing his men for their own safety. This he finally did, as far as he personally was concerned, when satisfied that there was actual danger of bloody resistance. Gorsuch, however, and his party persisted in their attempt, and he and two of his party fired on the colored men, who returned the fire with deadly effect. Gorsuch was killed on the spot, his son severely, though not mortally, wounded, and the rest of the party put to flight. The dead and wounded were cared for by the neighbors, mostly Friends and Abolitionists. The Slave, for the capture of whom this enterprise was undertaken, made his escape and reached a land of safety.

"Judge Grier denounced the act from the Bench as one of Treason. A party of marines were ordered to the ground to keep the peace after the battle had been fought and won. United States Marshal Roberts, Commissioner Ingraham, United States District Attorney Ashmead, with a strong body of police, accompanied them, and kept the seat of war under a kind of martial law for several days. The country was scoured, houses ransacked, and about thirty arrests made. Among those arrested were Castner Hanway and Elijah Lewis, whose only crime had been endeavoring to prevent the effusion of blood. The prisoners were brought to Philadelphia, examined before a Commissioner, and committed on a charge of High Treason. At the next term of the District Court, under a charge from Judge Kane, the Grand-Jury found indictments against all of them for this crime."[177]

[Footnote 177: 20 Anti-Slavery Report, pp. 30, 31.]

Mr. Hanway was brought to trial—for his life, charged with "treason." It appears that this was his overt act.—He was a Quaker, an anti-slavery Quaker, and a "non-resistant;" when he heard of the attack on the colored people, he rode on a sorrel horse to the spot, in his shirt-sleeves, with a broad felt hat on; he advised the colored men not to fire, "For God's sake don't fire;" but when Deputy Marshal Kline ordered him to assist in the kidnapping, he refused and would have nothing to do with it. Some of the colored people fired, and with such effect on the Kidnappers as I have just now shown. It appeared also that Mr. Hanway had said the fugitive slave bill was unconstitutional, and that he would never aid in kidnapping a man—words which I suppose this Honorable Court will consider as a constructive "misdemeanor;" "obstructing an officer."

For this "offence" his case was presented to the grand-jury of the Circuit Court the 29th of September, 1851. Judge Kane charged the jury—laying down the law of treason. Mr. Hanway was indicted for "wickedly devising and intending the peace and tranquillity of the ... United States to disturb;" and that he "wickedly and traitorously did intend to levy war against the said United States." And also that he "with force and arms, maliciously and traitorously did prepare and compose and ... and cause and procure to be prepared and composed, divers books, pamphlets, letters, and declarations, resolutions, addresses, papers, and writings, and did ... maliciously and traitorously publish and disperse ... divers other books ... containing ... incitement, encouragement, and exhortations, to move, induce, and persuade persons held to service in any of the United States ... who had escaped ... to resist, oppose, and prevent, by violence and intimidation, the execution of the said laws, [that is the law for kidnapping their own persons]."

He was brought to trial at Philadelphia, November 24th 1851, before Honorable Judges Kane and Grier, then and subsequently so eminent for their zeal in perverting law and doing judicial iniquity. Gentlemen of the Jury—it is no slander to say this. It is their great glory that in the cause of Slavery they have struck at the first principles of American Democracy, and set at nought the Christian Religion. It is only their panegyric which I pronounce.

On behalf of the government there appeared six persons as prosecuting officers. One United States Senator from Pennsylvania (Mr. Cooper), the Attorney-General of Maryland, the District Attorney of Pennsylvania, the Recorder of the City of Philadelphia, and two members of her bar.[178] For Mr. Webster, then Secretary of State, was highly desirous that Maryland should send her Attorney-General, Hon. Mr. Brent, to help the government of the United States prosecute a Quaker miller, a Non-resistant, for the crime of treason. Hon. James Cooper, the Pennsylvania Senator, also appeared on behalf of Maryland, seeking to convict one of his own constituents! Gentlemen, such conduct carries us back to the time of the Stuarts; but despotism is always the same. It was very proper that the United States government should thus outrage the common decencies of judicial process.

[Footnote 178: History, 55, 57; Report, 19; 2 Wallace.]

This question amongst others was put to each juror:—

"Have you formed an opinion that the law of the United States, known as the Fugitive Slave Law of 1850, is unconstitutional, so that you cannot for that reason convict a person indicted for a forcible resistance thereto, if the facts alleged in the indictment are proved and the court hold the statute to be constitutional?"

Thus all persons were excluded from the jury who believed this wicked bill a violation of the constitution; and one most important means of the prisoner's legitimate defence was purposely swept away by the court.

Now look at the law as laid down by the government.

Mr. Ashmead, the government's Attorney, said when the Constitution was adopted "Men had not then become wiser than the laws [the laws of England and colonial laws which they were born under and broke away from]; nor had they learned to measure the plain and unambiguous letter of the Constitution by an artificial standard of their own creation [that is the Self-evident Truth that all men have a natural and unalienable Right to Life, Liberty, and the Pursuit of Happiness]; to obey or disregard it according as it came up to or fell beneath it [as the law was just or unjust]."

"You will receive the law from the court." "You are bound by the instructions which the court may give in respect to it;" "it is in no sense true that you are judges of the law." "You must take the interpretation which the court puts upon it. You have a right to apply the law to the facts, but you have no right to go further."

"The crime charged against this defendant is ... that of levying war against the United States. The phrase levying war was long before the adoption of the Constitution, a phrase ... embracing such a forcible resistance to the laws as that charged against this defendant [that is, speaking against the fugitive slave bill and refusing to kidnap a man is 'levying war against the United States']!"

It is treason "if the intention is by force to prevent the execution of any one ... of the general laws of the United States, or to resist the exercise of any legitimate authority of the government."

"Levying war embraces ... any combination forcibly to prevent or oppose the execution ... of a public statute, if accompanied or followed by an act of forcible opposition." Of course the court is to determine the meaning of force; and using the same latitude of construction as in interpreting levying war, it would mean, a word, a look, a thought, a wish, a fancy even.

Mr. Ludlow enforced the same opinions, relying in part on the old tyrannical decisions of the British courts in the ages of despotism, and on the opinion of Judge Chase—who had derived his law of treason from that source, and was impeached before the American Senate for his oppressive conduct while judge in the very trials whence these iniquitous doctrines were derived! But Mr. Ludlow says "if a spurious doctrine have been introduced into the common law ... it would require great hardihood in a judge to reject it." So the jury must accept "a spurious doctrine" as genuine law!

"In treason, all the participes criminis are principals; there are no accessaries to this crime. Every act which ... would render a man an accessary will ... make him a principal." "If any man joins and acts with an assembly of people, his intent is always to be considered ... the same as theirs; the law ... judgeth of the intent by the Fact." This was Judge Kelyng's "law."

"It may be ... advanced that because Hanway was not armed, he was not guilty. It is perfectly well settled that arms are not necessary." "Military weapons ... are not necessary ... to a levying war." "This is the opinion of Judge Chase," and "it may be alleged that Judge Chase was impeached, and that [therefore] his opinions are of little weight. Whatever may have been the grounds of that impeachment, it is not for us to discuss."

"If a body of men be assembled for the purpose of effecting a treasonable object [that is, 'to oppose the execution of a public statute,' no matter what or how] all those who perform any part, however minute, or however remote from the scene of action ... are equally traitors."

Mr. Brent, the Maryland State Attorney, whom Mr. Webster had sent there, declared that "any combination like this, of colored and white persons, to prevent the execution of the Fugitive Slave Law, is treason."

Mr. Cooper, the Pennsylvania Senator, adds, "Castner Hanway ... having been present ... at the time the overt act was committed, he is a principal ... provided he was there aiding and abetting the objects of the confederated parties." "Persons procuring, contriving, or consenting, come within the words aid and abet." So "if he encourages, assists, or consents to the act, it is enough; he becomes at once an aider and abettor, and obnoxious to all the pains and penalties denounced against it." "If persons do assemble themselves and act with some force in opposition to some law ... and hope thereby to get it repealed, this is a levying war and high treason." That is, an assembly of men acting against any law, with any force of argument, in order to procure its repeal, levies war and is guilty of treason!

To connect Mr. Hanway with this constructive treason, the government relied on the evidence of Mr. Kline, the Deputy Marshal of the court, a man like Mr. Butman and Mr. Patrick Riley, so well known in this court, and so conspicuous for courage and general elevation of character. Witnesses testified that Kline was so much addicted to falsehood that they would not believe him on oath,—but what of that? He had "conquered his prejudices." It appeared that Mr. Hanway went to the scene of action on a sorrel horse, in his shirt-sleeves, with a felt hat on, and did not join the Deputy in attempting to kidnap when commanded. Hear how Mr. Ludlow constructs levying war out of the disobedience of a non-resistant Quaker in a felt hat and shirt-sleeves, mounted on a sorrel horse! Hearken to this voice of the government:—

"Suddenly he sees the assembled band of infuriated men.... Does he leave the spot? No, Sir! Does he restrain the negroes? Take the evidence for the defence in its fullest latitude, and you will perceive he raised the feeble cry, 'Don't shoot! for God's sake don't shoot!' and there it ended. Is that consistent with innocence?... according to their own evidence the conclusion is irresistible that he was not innocent."

"But he does more than this." When summoned by the Deputy to steal a man "he is thrown off his guard, and exclaims, 'I will not assist you;' 'he allowed the colored people had a right to defend themselves.' 'He did not care for that Act of Congress or any other Act of Congress.'"

And so with his unsaddled sorrel nag this non-resistant miller levies war upon the United States by crying "Don't fire," and commits treason by the force and arms of a broad-brimmed Quaker hat. "The smallest amount of force is sufficient," "military weapons are not necessary to levy war!"

Mr. Brent thought if Mr. Hanway was not hanged it would appear that a "small and miserable and traitorous faction can resist and annul the laws of the United States." "Put down these factions [the Free-Soil Party, the Liberty Party, the Anti-Slavery Societies], overwhelm them with shame, disgrace, and ruin, or you are not good citizens fulfilling the bonds that bind you to us of the South."

The government Attorney declared that Mr. Hanway and others

"Had no right to refuse to assist because it was repugnant to their consciences. Conscience! Conscience ... is the pretended justification for an American citizen to refuse to execute a law of his country." "Damnable, treasonable doctrine." "He has become a conspirator, he has connected himself with them, and all their acts are his acts, and all their intentions are his intentions."

"The whole neighborhood was not only disloyal, but wanting in common humanity:" "the whole region is infected," "in that horde of traitors;" "a whole county, a whole township, a whole neighborhood are involved in plotting treason." "When you see these things can you not infer ... that he went there by pre-arrangement!" "When you see a man ... not saying one word to save his dear colored friends from the guilt of murder, I say it is passing human credulity to say that you cannot infer in all that a feeling of hostility to the law, and an intention to resist it."

"The consequences [of the verdict] are not with the jury:" the responsibility will not be with you—you are not responsible for those just consequences."

"When you allege that a master has come into Pennsylvania and illegally seized and possessed himself of his slave without process, you are to inquire, 'Has he done that which he had authority to do in his own State?' You are to look to the laws of his own State; for the Supreme Court says,[179] 'He has the same right to repossess his slave here as in his own State.'" "He who employs a man said to have come from Maryland without being satisfied of his freedom, is himself guilty of the first wrong."

[Footnote 179: 16 Peters, Prigg v. Penn.]

Senator Cooper closed for the government. Law was not enough for him; he would have the sanction of "Religion" also. So he read extract from a Sermon. Gentlemen of the Jury, you have not had the benefit of Rev. Dr. Adams's prayers in this court; it is a pity you should not be blessed with the theology of despotism; listen therefore to the "Thanksgiving Sermon" of Rev. Dr. Wadsworth, which Hon. Mr. Cooper read to the Jury in Independence Hall.

"For passing by all other causes of irritation as just now secondary and subordinate, look for a moment, at the influence which the Gospel of Christ would have in this great sectional controversy about slavery.

"First, It would say to the Northern fanatic, who vapors about man-stealing as if there were no other evil under the sun but this one evil of Slavery—it would say to him, Emulate the spirit of your blessed Master and his apostles, who, against this very evil [man-stealing] in their own times, brought no railing accusation; but in one instance at least, sent back a fugitive from the household of Philemon.

"In treating Southern Christian slaveholders with Christian courtesy, and sending back their fugitives when apprehended among you, you neither indorse the system nor partake of its evil; you are only performing in good faith the agreement, and redeeming the pledges of your forefathers, and leaving to each man for himself to answer for his own acts at the judgment-seat of Jesus. It would tear away from the man, as the foulest cloak of hypocrisy, that pretence of a religious principle in this whole matter of political abolitionism.

"Religious principle! Oh my God! That religious principle, that for the sake of an abstract right whose very exercise were disastrous to the unprepared bondmen who inherit it, would tear this blest confederacy in pieces, and deluge these smiling plains in fraternal blood, and barter the loftiest freedom that the world ever saw, for the armed despotism of a great civil warfare! That religious principle which, in disaster to man's last great experiment, would fling the whole race back into the gloom of an older barbarism—rearing out of the ruin of these free homes, the thrones of a more adamantine despotism—freedom's beacons all extinguished, and the whole race slaves. That religious principle through which, losing sight of God's great purpose of evangelizing the nations, [by American Slavery,] would shatter the mightiest wheel in the mechanism of salvation, and palsy the wing of God's preaching angel in its flight through the skies.

"Alas—alas! ye that count as little this bond of blessed brotherhood, wrought by our fathers' mighty hands and bleeding hearts—we tell you, sorrowing and in tears, that your pretence is foul hypocrisy. Ye have reversed the first precept of the gospel, for your wisdom is a dove's, and your harmlessness a serpent's. Ye have not the first principle within you either of religion or philanthropy, or common human benevolence. Your principle is the principle of Judas Iscariot, and with the doom of the traitor ye shall go to your own place."

"No, Sir—no, Sir," concludes the Senator thirsting for his constituent's blood, "'There is no gospel in all this treasonable fanaticism—for treason to my country is rebellion to my God.'"

Judge Grier charged the Jury;—but as he stuck out from the phonographer's report—of which the proof-sheets were sent to him—the most offensive portion, Gentlemen of the Jury, I shall not be able to enlighten you with all the legal words of this "consummate judge." So be content with the following Elegant Extracts.

"With the exception of a few individuals of perverted intellect in some small districts or neighborhoods whose moral atmosphere has been tainted and poisoned by male and female vagrant lecturers and conventions, no party in politics, no sect of religion, or any respectable numbers or character can be found within our borders, who have viewed with approbation or have looked with any other than feelings of abhorrence upon this disgraceful tragedy."

"It is not in this Hall of Independence that meetings of infuriated fanatics and unprincipled demagogues have been held to counsel a bloody resistance to the laws of the land. It is not in this city that conventions are held denouncing the Constitution, the Laws, and the Bible. It is not here that the pulpit has been desecrated by seditious exhortations, teaching that theft [a man stealing his own limbs and person from his 'lawful owner'] is meritorious, murder [in self-defence killing a man-stealer] excusable, and treason [opposition to the fugitive slave bill] a virtue!"

"The guilt of this foul murder [the shooting of a kidnapper by the men whom he intended for his victims, and whose premises he invaded without due process of law, and with armed force], rests not alone on the deluded individuals who were its immediate perpetrators, but the blood taints with even deeper dye the skirts of those who promulgated doctrines subversive of all morality and all government, [that is, of Slavery and the fugitive slave bill]."

"This murderous tragedy is but the necessary development of principles and the natural fruit from seed sown by others whom the arm of the law cannot reach," [such as the Authors of the Declaration of Independence, and still more the Author of the "Sermon on the Mount]."

"This [the slave clause of the Constitution] is the Supreme law of the land, binding ... on the conscience and conduct of every individual citizen of the United States." "The shout of disapprobation with which this [the fugitive slave bill] has been received by some, has been caused ... because it is an act which can be executed ... the real objection ... is to the Constitution itself, which is supposed to be void in this particular, from the effect of some 'higher law.' It is true that the number of persons whose consciences affect to be governed by such a law [that is the law of Natural Morality and Religion], is very small. But there is a much larger number who take up opinions on trust,—and have concluded this must be a very pernicious and unjust enactment, for no other reason than because the others shout their disapprobation with such violence and vituperation."

"This law is Constitutional." "The question of its Constitutionality is to be settled by the Courts, [fugitive slave bill courts,] and not by conventions either of laymen or ecclesiastics." "We are as much bound to support this law as any other." "The jury should regard the construction of the Constitution as given them by the court as to what is the true meaning of the words levying war." "In treason all are principals, and a man may be guilty of aiding and abetting, though not present."

He spoke of those "associations, or conventions, which occasionally or annually infest the neighboring village of West-Chester, for the purpose of railing at and resisting the Constitution and laws of the land [that is the fugitive slave bill and other laws which annihilate a man's unalienable right to his liberty], and denouncing those who execute them as no better than a Scroggs or a Jeffreys;—who stimulate and exhort poor negroes to the perpetration of offences which they know must bring them to the penitentiary or the gallows."

But he thought refusing to aid the deputy marshal in kidnapping was not an act of levying war, or treason against the United States. "In so doing he is not acting the part of an honest, loyal citizen [who ought to do any wickedness which a bum-bailiff commands]; he may be liable to be punished for a misdemeanor for his refusal to interfere."

"But he thought the government was right "in procuring an indictment for Treason." For "meetings had been held in many places in the North, denouncing the law, and advising a traitorous resistance to its execution: conventions of infuriated fanatics had invited to acts of rebellion; and even the pulpit had been defiled with furious denunciations of the law, and exhortations to a rebellious resistance to it.

"The government was perfectly justified in supposing that this transaction was but the first overt act of a treasonable conspiracy, extending over many of the Northern States, to resist by force of arms the execution of this article of the Constitution and the laws framed in pursuance of it. In making these arrests, and having this investigation, the officers of government have done no more than their strict duty.

"The activity, zeal, and ability, which have been exhibited by the learned Attorney of the United States, in endeavoring to bring to condign punishment the perpetrators of this gross offence, are deserving of all praise. It has given great satisfaction to the Court also, that the learned Attorney-General of Maryland, and the very able counsel associated with him [Senator Cooper of Pennsylvania] have taken part in this prosecution."

In about fifteen minutes the Jury returned a verdict of "NOT GUILTY."[180]

[Footnote 180: See Report of Trial of Castner Hanway, Phil. 1852.]

* * * * *

(4.) On the 29th of April, 1852, a man named William Smith was arrested by Commissioner McAllister of Columbia, Pennsylvania, on complaint of one Ridgeley of Baltimore. While in the custody of the officers, Smith endeavored to escape, and Ridgeley drew a pistol and shot him dead. The murderer escaped. No serious efforts were made by the State authorities to bring that offender to justice. "He has the same right to repossess his slave here as in his own State;" the same right to kill him if he attempts to escape! Mr. Toombs is modest—but we shall soon see the slaveholder not only sit down with his slaves at the foot of Bunker Hill Monument, but shoot them if they attempt to run away! Nay, Gentlemen, we shall see this Court defending the slave-hunter's "privilege."

(5.) Here is another case, Gentlemen of the Jury, in which this same Judge Grier appears, and with his usual humanity. This is a brief account of the case of Daniel Kauffman. In 1852 he allowed a party of fugitive slaves to pass the night in his barn, and gave them food in the morning. For this he was brought before Judge Grier's court and fined $2,800! It was more than his entire property. Gentlemen, there are persons in this room who gave money to Mr. Kauffman, to indemnify him for his losses; were not they also guilty of treason, at least of a "misdemeanor?" They "evinced an express liking" for Freedom and Humanity, not Slavery and bloodshed.

(6.) But here is yet one more,—which you shall have in the language of another:—

"In a case of attempted Slave-catching at Wilkesbarre, in Pennsylvania, the Deputy Marshal, Wyncoop and his assistants, had behaved with such atrocious and abominable cruelty, that the citizens felt that justice demanded their punishment for the outrage. They were, accordingly, arrested on a warrant issued by a most respectable magistrate, on the oath of one of the principal inhabitants of the place. A writ of habeas corpus was forthwith sued out, returnable before Judge Grier. When the District Attorney, Ashmead, moved the discharge of the relators, (which, it is needless to say, was ordered,) Judge Grier delivered himself to the following effect. 'If habeas corpuses are to be taken out after that manner, I will have an indictment sent to the United States Grand-Jury against the person who applies for the writ, or assists in getting it, the lawyer who defends it, and the sheriff who serves the writ, to see whether the United States officers are to be arrested and harassed whenever they attempt to serve a process of the United States.'"