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[Transcriber's Note: A table of contents has been added for the reader's convenience. Errors listed in the Errata section have been noted with a [Transcriber's Note]; other obvious printer errors have been corrected without note.]
THE TRIAL
OF
THEODORE PARKER,
FOR THE
"MISDEMEANOR"
OF
A Speech in Faneuil Hall against Kidnapping,
BEFORE THE CIRCUIT COURT OF THE UNITED STATES,
AT BOSTON, APRIL 3, 1855.
WITH
THE DEFENCE,
BY
THEODORE PARKER,
MINISTER OF THE TWENTY-EIGHTH CONGREGATIONAL SOCIETY IN BOSTON.
BOSTON: PUBLISHED FOR THE AUTHOR. 1855.
Entered according to Act of Congress, in the year 1855, by
THEODORE PARKER,
In the Clerk's Office of the District Court of the District of Massachusetts.
CAMBRIDGE: ALLEN AND FARNHAM, PRINTERS.
CONTENTS
PREFACE INTRODUCTION DEFENCE ERRATA OTHER WORKS BY THE SAME AUTHOR
TO
JOHN PARKER HALE
AND
CHARLES MAYO ELLIS,
MAGNANIMOUS LAWYERS,
FOR THEIR LABORS IN A NOBLE PROFESSION,
WHICH HAVING ONCE IN ENGLAND ITS KELYNG, ITS SAUNDERS, ITS JEFFREYS, AND ITS SCROGGS, AS NOW IN AMERICA ITS SHARKEY, ITS GRIER, ITS CURTIS, AND ITS KANE, HAS YET ALSO SUCH GENEROUS ADVOCATES OF HUMANITY AS EQUAL THE GLORIES OF HOLT AND ERSKINE, OF MACKINTOSH AND ROMILLY,
FOR THEIR ELOQUENT AND FEARLESS DEFENCE OF TRUTH, RIGHT, AND LOVE,
THIS VOLUME IS DEDICATED,
BY THEIR CLIENT AND FRIEND,
THEODORE PARKER.
PREFACE.
TO THE PEOPLE OF THE FREE STATES OF AMERICA.
FELLOW-CITIZENS AND FRIENDS,—
If it were a merely personal matter for which I was arraigned before the United States Court, after the trial was over I should trouble the public no further with that matter; and hitherto indeed, though often attacked, nay, almost continually for the last fourteen years, I have never returned a word in defence. But now, as this case is one of such vast and far-reaching importance, involving the great Human Right to Freedom of Speech, and as the actual question before the court was never brought to trial, I cannot let the occasion pass by without making further use of it.
When Judge Curtis delivered his charge to the Grand-Jury, June 7th, 1854, I made ready for trial, and in three or four days my line of defence was marked out—the fortifications sketched, the place of the batteries determined; I began to collect arms, and was soon ready for his attack. When that Grand-Jury, summoned with no special reference to me, refused to find a bill and were discharged, I took public notice of the conduct of Judge Curtis, in a Sermon for the Fourth of July.[1] But I knew the friends of the fugitive slave bill at Boston and Washington too well to think they would let the matter sleep; I knew what arts could be used to pack a jury and procure a bill. So I was not at all surprised when I heard of the efforts making by the Slave Power in Boston to obtain an indictment by another grand-jury summoned for that purpose. It need not be supposed that I was wholly ignorant of their doings from day to day. The arrest was no astonishment to me. I knew how much the reputation of this Court and of its Attorney depended on the success of this prosecution. I knew what private malignity was at work.
[Footnote 1: 2 Parker's Additional Speeches, 178-283.]
After my arraignment I made elaborate preparation for my defence. I procured able counsel, men needing no commendation, to manage the technical details which I knew nothing about and so could not meddle with, while I took charge of other matters lying more level to my own capacity. I thought it best to take an active part in my own defence,—for the matter at issue belonged to my previous studies and general business; my personal friends and the People in general, seemed to expect me to defend myself as well as I could.
A great political revolution took place between the Judge's charge and my arraignment, June 7th, and November 29th, 1854, and I thought the Court would not allow the case to come to open argument. For certainly, it would not be a very pleasant thing for Judge Sprague and Judge Curtis, who have taken such pains to establish slavery in Massachusetts, to sit there—each like a travestied Prometheus, chained up in a silk gown because they had brought to earth fire from the quarter opposite to Heaven—and listen to Mr. Hale, and Mr. Phillips and other anti-slavery lawyers, day after day: there were facts, sure to come to light, not honorable to the Court and not pleasant to look at in the presence of a New England community then getting indignant at the outrages of the Slave Power. I never thought the case would come to the jury. I looked over the indictment, and to my unlearned eye it seemed so looped and windowed with breaches that a skilful lawyer might drive a cart and six oxen through it in various directions; and so the Court might easily quash the indictment and leave all the blame of the failure on the poor Attorney—whom they seemed to despise, though using him for their purposes—while they themselves should escape with a whole reputation, and ears which had not tingled under manly speech.
Still, it was possible that the trial would come on. Of course, I knew the trial would not proceed on the day I was ordered to appear—the eighty-fifth anniversary of the Boston Massacre. It would be "unavoidably postponed," which came to pass accordingly. The Attorney, very politely, gave me all needed information from time to time.
At the "trial," April 3d, it was optional with the defendant's counsel to beat the Government on the indictment before the Court; or on the merits of the case before the Jury. The latter would furnish the most piquant events, for some curious scenes were likely to take place in the examination of witnesses, as well as instruction to be offered in the Speeches delivered. But on the whole, it was thought best to blow up the enemy in his own fortress and with his own magazine, rather than to cut him to pieces with our shot in the open field. So the counsel rent the indictment into many pieces—apparently to the great comfort of the Judges, who thus escaped the battle, which then fell only on the head of the Attorney.
At the time appointed I was ready with my defence—which I now print for the Country. It is a Minister's performance, not a lawyer's. Of course, I knew that the Court would not have allowed me to proceed with such a defence—and that I should be obliged to deliver it through the press. Had there been an actual jury trial, I should have had many other things to offer in reference to the Government's evidence, to the testimony given before the grand-jury, and to the conduct of some of the grand-jurors themselves. So the latter part of the defence is only the skeleton of what it otherwise might have been,—the geological material of the country, the Flora and Fauna left out.
It would have been better to publish it immediately after the decision of the case: but my brief was not for the printer, and as many duties occurred at that time, it was not till now, in a little vacation from severer toils, that I have found leisure to write out my defence in full. Fellow-Citizens and Friends, I present it to you in hopes that it may serve the great cause of Human Freedom in America and the world; surely, it has seldom been in more danger.
THEODORE PARKER.
BOSTON, 24th August, 1855.
INTRODUCTION.
On Tuesday, the 23d of May, 1854, Charles F. Suttle of Virginia, presented to Edward Greeley Loring, Esquire, of Boston, Commissioner, a complaint under the fugitive slave bill—Act of September 18th, 1850—praying for the seizure and enslavement of Anthony Burns.
The next day, Wednesday, May 24th, Commissioner Loring issued the warrant: Mr. Burns was seized in the course of the evening of that day, on the false pretext of burglary, and carried to the Suffolk County Court House in which he was confined by the Marshal, under the above-named warrant, and there kept imprisoned under a strong and armed guard.
On the 25th, at about nine o'clock in the morning, the Commissioner proceeded to hear and decide the case in the Circuit Court room, in which were stationed about sixty men serving as the Marshal's guard. Seth J. Thomas, Esquire, and Edward Griffin Parker, Esquire, members of the Suffolk Bar, appeared as counsel for Mr. Suttle to help him and Commissioner Loring make a man a Slave. Mr. Burns was kept in irons and surrounded by "the guard." The Slave-hunter's documents were immediately presented, and his witness was sworn and proceeded to testify.
Wendell Phillips, Theodore Parker, Charles M. Ellis, and Richard H. Dana, with a few others, came into the Court room. Mr. Parker and some others, spoke with Mr. Burns, who sat in the dock ironed, between two of the Marshal's guard. After a little delay and conference among these four and others, Mr. Dana interrupted the proceedings and asked that counsel might be assigned to Mr. Burns, and so a defence allowed. To this Mr. Thomas, the senior counsel for the Slave-hunters, objected. But after repeated protests on the part of Mr. Dana and Mr. Ellis, the Commissioner adjourned the hearing until ten o'clock, Saturday, May 27th.
On the evening of Friday, May 26th, there was a large and earnest meeting of men and women at Faneuil Hall. Mr. George R. Russell, of West Roxbury, presided; his name is a fair exponent of the character and purposes of the meeting, which Dr. Samuel G. Howe called to order.
Speeches were made and Resolutions passed. Mr. Phillips and Mr. Parker, amongst others, addressed the meeting; Mr. Parker's speech, as reported and published in the newspapers, is reprinted in this volume, page 199. While this meeting was in session there was a gathering of a few persons about the Court House, the outer doors of which had been unlawfully closed by order of the Marshal; an attempt was made to break through them and enter the building, where the Supreme Court of Massachusetts was sitting engaged in a capital case; and the Courts of this State must always sit with open doors. In the strife one of the Marshal's guard, a man hired to aid in the Slave-hunt, was killed—but whether by one of the assailing party, or by the Marshal's guard, it is not yet quite clear. It does not appear from the evidence laid before the public or the three Grand-Juries, that there was any connection between the meeting at Faneuil Hall and the gathering at the Court House.
Saturday, 27th, at ten o'clock, the Commissioner opened his Court again, his prisoner in irons before him. The other events are well known. Mr. Burns was taken away to Slavery on Friday, June 2d, by an armed body of soldiers with a cannon.
The May Term of the Circuit Court at Boston began on the 15th of that month, and the Grand-Jury for that term had already been summoned. Here is the list:—
UNITED STATES CIRCUIT COURT, } MASSACHUSETTS DISTRICT. }
May Term, 1854. ss. May 15, 1854.
GRAND-JURY.
1 Sworn. Isaac Tower, Randolph, Foreman.
2 " Elbridge G. Manning, Andover.
3 " Asa Angier, "
4 " Ballard Lovejoy, "
5 " Levi Eldridge, Chatham.
6 " Isaac B. Young, "
7 " Josiah Peterson, Duxbury.
8 " James Curtis, "
9 Not Sworn. William Amory, Boston, Excused first day. Member of the bar.
10 Sworn. James P. Bush, " Absent June 28th.
11 " John Clark, "
12 " Charles H. Mills, "
13 " William N. Tyler, "
14 " Samuel Weltch, "
15 " Reuben Nichols, Reading.
16 " Benjamin M. Boyce, "
17 " Ephraim F. Belcher, Randolph.
18 " Thomas S. Brimblecome, Fairhaven.
19 " Obed F. Hitch, "
20 " Lowell Claflin, Hopkinton.
21 " William Durant, Leominster.
22 " Charles Grant, "
23 " Jeremiah B. Luther, Douglas.
On the 7th of June, Judge Curtis gave to this Grand-Jury his charge.[2] In that he spoke of the enforcement of the fugitive slave bill; and he charged the Jury especially and minutely upon the Statute of the United States of 1790, in relation to resisting officers in service of process as follows.
[Footnote 2: The charge is printed below, at page 170.]
That not only those who are present and actually obstruct, resist, and oppose, and all who are present leagued in the common design, and so situated as to be able in case of need, to afford assistance to those actually engaged; but all who, though absent, did procure, counsel, command, or abet others to commit the offence; and all who, by indirect means, by evincing an express liking, approbation, or assent to the design, were liable as principals. And he added, "My instruction to you is, that language addressed to persons who immediately afterwards commit an offence, actually intended by the speaker to incite those addressed to commit it, and adapted thus to incite them, is such a counselling, or advising to the crime as the law contemplates, and the person so inciting others is liable to be indicted as a principal," and it is of no importance that his advice or directions were departed from in respect to the time, or place, or precise mode, or means of committing it.
That Jury remained in session a few weeks: pains were taken to induce them to find bills against the speakers at Faneuil Hall; but they found no indictment under the law of 1790, or that of 1850; they were discharged.
On the 22d of September, venires were issued by order of the Court for a new Grand-Jury; and, on the 16th of October, twenty-three were returned by Marshal Freeman, and impanelled. Here is the list of new Grand-Jurors:—
UNITED STATES CIRCUIT COURT, } MASSACHUSETTS DISTRICT. }
October Term, 1854. ss. October 16, 1854.
GRAND-JURY.
1 Sworn. Enoch Patterson, Jr., Boston, Foreman.
2 " David Alden, "
3 " Stephen D. Abbott, Andover.
4 " Isaac Beal, Chatham.
5 " John Burrill, Reading.
6 " Mathew Cox, Boston.
7 " Richard B. Chandler, Duxbury.
8 " Charles L. Cummings, Douglas.
9 " Charles Carter, Leominster.
10 " Warren Davis, Reading.
11 " William W. Greenough, Boston.
12 " George O. Hovey, "
13 " John M. Howland, Fairhaven.
14 Sworn. Manson D. Haws, Leominster.
15 " John Holbrook, Randolph.
Excused. Nathaniel Johnson, Hopkinton, Excused first day, October 16th, for the term.
16 Sworn. George Londen, Duxbury.
17 " Nathan Moore, Andover.
18 " Samuel P. Ridler, Boston.
19 " Christopher Ryder, Chatham.
20 " John Smith, Andover.
21 " Appollos Wales, Randolph.
22 " Samuel L. Ward, Fairhaven.
This Grand-Jury was not charged by the Judge upon the statute of 1790, or 1850, but was referred to Mr. Hallett, the Attorney, for the instructions previously given to the Jury that had been discharged, namely, for his charge of June 7th, already referred to. Mr. William W. Greenough, brother-in-law of Judge Curtis, was one of the Jury. They found the following indictment against Mr. Parker:—
UNITED STATES OF AMERICA.
Circuit Court of the United States of America, for the District of Massachusetts.
At a Circuit Court of the United States of America, for the District of Massachusetts, begun and holden at Boston, the aforesaid District, on the sixteenth day of October, in the year of our Lord one thousand eight hundred and fifty-four (the fifteenth day of said October being Sunday).
The Jurors of the United States within the aforesaid District, on their oath, present.
1st. That heretofore to wit,—on the twenty-fourth day of May, in the year of our Lord one thousand eight hundred and fifty-four, a certain warrant and legal process directed to the Marshal of the said District of Massachusetts, or either of his Deputies, was duly issued under the hand and seal of Edward G. Loring, Esquire, who was then and there a Commissioner of the Circuit Court of the United States, for said District, which said warrant and legal process was duly delivered to Watson Freeman, Esquire, who was then and there an officer of the United States, to wit, Marshal of the United States, for the said District of Massachusetts, at Boston, in the District aforesaid, on the said twenty-fourth day of May in the year aforesaid, and was of the purport and effect following, that is to say:—
UNITED STATES OF AMERICA.
MASSACHUSETTS DISTRICT, SS.
To the Marshal of our District of Massachusetts, or either of his Deputies, Greeting:
In the name of the President of the United States of America, you are hereby commanded forthwith to apprehend Anthony Burns, a negro man, alleged now to be in your District, charged with being a fugitive from labor, and with having escaped from service in the State of Virginia, if he may be found in your precincts, and have him forthwith before me, Edward G. Loring, one of the Commissioners of the Circuit Court of the United States for the said District, then and there to answer to the complaint of Charles F. Suttle, of Alexandria, in the said State of Virginia, Merchant, alleging under oath that the said Anthony Burns on the twenty-fourth day of March last, did and for a long time prior thereto had, owed service and labor to him the said Suttle, in the said State of Virginia, under the laws thereof, and that, while held to service there by said Suttle, the said Burns escaped from the said State of Virginia, into the State of Massachusetts; and that the said Burns still owes service and labor to said Suttle in the said State of Virginia, and praying that said Burns may be restored to him said Suttle in said State of Virginia, and that such further proceedings may then and there be had in the premises as are by law in such cases provided.
Hereof fail not, and make due return of this writ, with your doings therein before me.
Witness my hand and seal at Boston, aforesaid, this twenty-fourth day of May, in the year one thousand eight hundred and fifty-four.
EDWARD G. LORING, Commissioner. [L.S.]
And the Jurors aforesaid do further present, that the said warrant and legal process, being duly issued and delivered as aforesaid, afterwards to wit, on the twenty-fifth day of May, in the year aforesaid, at Boston in said District, the said Watson Freeman then and there being an officer of the said United States, to wit Marshal of the District aforesaid, and in pursuance of said warrant and legal process, did then and there arrest the said Anthony Burns named therein, and had him before the said Edward G. Loring, Commissioner, for examination—and thereupon the hearing of the said case was adjourned by the said Commissioner until Saturday the twenty-seventh day of May, in the year aforesaid, at ten o'clock in the forenoon; and the said Marshal, who had so made return of the said Warrant, was duly ordered by the said Commissioner to retain the said Anthony Burns in his custody, and have him before the said Commissioner on the said twenty-seventh day of May in the year aforesaid, at the Court House in said Boston, which said last-mentioned legal process and order was duly issued under the hand of the said Edward G. Loring, Commissioner, and was of the purport and effect following, that is to say:
U.S. OF AMERICA, DISTRICT OF MASSACHUSETTS.
Boston, May 25, 1854.
And now the hearing of this case being adjourned to Saturday, May 27, 1854, 10 A.M., the said Marshal, who has made return of this warrant, is hereby ordered to retain the said Anthony Burns in his custody, and have him before me at the time last mentioned, at the Court House in Boston, for the further hearing of the Complaint on which the warrant was issued.
EDWARD G. LORING, Commissioner.
And the Jurors aforesaid do further present, that on the twenty-sixth day of May, in the year aforesaid, in pursuance of the warrant and legal process aforesaid, and of said further legal process and order last mentioned, the said Watson Freeman, Marshal as aforesaid, then and there, at the said Court House in said Boston, had in his custody the person of the said Anthony Burns, in the due and lawful execution of the said warrant and legal process, and of the said further legal process and order, in manner and form as he was therein commanded—and one Theodore Parker, of Boston, in said District, Clerk, then and there well knowing the premises, with force and arms did knowingly and wilfully obstruct, resist, and oppose the said Watson Freeman, then and there being an officer of the said United States, to wit, Marshal of the said District, in serving and attempting to serve and execute the said warrant and legal process, and the said further legal process and order in manner and form as he was therein commanded, to the great damage of the said Watson Freeman, to the great hinderance and obstruction of Justice, to the evil example of all others, in like case offending, against the peace and dignity of the said United States, and contrary to the form of the Statute in such case made and provided.
2d. And the Jurors aforesaid, on their oath aforesaid, do further present, that on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in said District, one Theodore Parker, of Boston, in said District, Clerk, with force and arms, did knowingly and wilfully obstruct, resist, and oppose one Watson Freeman, who was then and there the Marshal of the United States of America, for the District of Massachusetts, and an officer of the said United States, in serving and attempting to serve and execute a certain warrant and legal process, which before that time, to wit, on the twenty-fourth day of May, in the year of our Lord one thousand eight hundred and fifty-four, had been duly issued under the hand and seal of Edward G. Loring, Esquire, a Commissioner of the Circuit Court of the United States, for said District of Massachusetts, and directed to the Marshal of the District of Massachusetts, or either of his deputies, which said warrant and legal process the said Freeman, in the due and lawful execution of his said office, had then and there in his hands and possession for service of the same, and which he was then and there serving and attempting to serve and execute; which said warrant commanded the said Freeman to apprehend one Anthony Burns and to have him forthwith before the said Commissioner, then and there to be dealt with according to law. Against the peace and dignity of the said United States, and contrary to the form of the Statute in such case made and provided.
3d. And the Jurors aforesaid, on their oath aforesaid, do further present, that on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in said District, the said Theodore Parker, with force and arms, did knowingly and wilfully obstruct, resist, and oppose one Watson Freeman, who was then and there an officer of the said United States, to wit, the Marshal of the United States for the said District of Massachusetts, in serving and attempting to serve and execute a certain legal process which before that time, to wit, on the 25th day of May, in the year of our Lord one thousand eight hundred and fifty-four, had been duly issued under the hand of Edward G. Loring, who was then and there a Commissioner of the Circuit Court of the United States, for the said District of Massachusetts, and was then and there duly empowered to issue said legal process, and which said legal process was duly committed for obedience and execution to the said Freeman, Marshal as aforesaid, wherein and whereby and in pursuance of the command whereof the said Freeman was then and there lawfully retaining, detaining, and holding one Anthony Burns for the further hearing and determination of a certain complaint, upon which a warrant before that time, to wit, on the twenty-fourth day of said May, had been duly issued under the hand and seal of the said Commissioner, by force of which warrant the said Anthony Burns had been duly arrested and apprehended by the said Freeman, and in execution of the same, on the twenty-fifth day of said May had been brought by the said Freeman before the said Commissioner.
4th. And the jurors aforesaid, on their oath aforesaid, do further present, that on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in said district, the said Theodore Parker, with force and arms, did knowingly and wilfully obstruct, resist, and oppose one Watson Freeman, who was then and there an officer of the said United States, to wit, Marshal of the United States, for the District of Massachusetts, in serving and attempting to serve and execute a certain warrant and legal process, which before that time, to wit, on the twenty-fourth day of May, in the year of our Lord one thousand eight hundred and fifty-four, had been duly issued under the hand and seal of Edward G. Loring, Esquire, a Commissioner of the Circuit Court of the United States, for the District of Massachusetts, and directed to the Marshal of the said District of Massachusetts or either of his Deputies, which the said Freeman, in the due and lawful execution of his said office, had then and there in his hands and possession for service of the same, and which he was then and there serving and attempting to serve and execute; which warrant commanded the said Freeman to apprehend one Anthony Burns, and to have him forthwith before the said commissioner and that such further proceedings might then and there be had in the premises, as are by law in such cases provided,—and also in serving and attempting to serve and execute a certain further legal process which before that time, to wit, on the twenty-fifth day of May, in the year aforesaid, had been duly issued under the hand of the said Commissioner, and duly committed for obedience and execution to the said Freeman, wherein and whereby, and in pursuance of the command whereof, the said Freeman was then and there lawfully retaining, detaining, and holding the said Anthony Burns for the further hearing and determination of a certain complaint upon which the warrant aforesaid had been issued by the said Commissioner.
5th. And the Jurors aforesaid on their oath aforesaid, do further present that one Theodore Parker, of Boston, in said District, Clerk, on the 26th day of May, in the year of our Lord one thousand eight hundred and fifty-four, at Boston, in the said District of Massachusetts, with force and arms, in and upon one Watson Freeman, then and there in the peace of the said United States being, an assault did make, he the said Freeman also then and there being an officer of the said United States, to wit, Marshal of the United States, for the said District of Massachusetts, and then and there also being in the due and lawful discharge of his duties as such officer. And so the jurors aforesaid, on their oath aforesaid, do say and present that the said Theodore Parker, at Boston aforesaid, on the said twenty-sixth day of said May, with force and arms assaulted the said Freeman as such officer, and knowingly and wilfully obstructed, resisted, and opposed him in the discharge of his lawful duties in manner and form aforesaid, against the peace and dignity of the said United States, and contrary to the form of the Statute in such cases made and provided. And the Jurors aforesaid, on their oath aforesaid, do further present that the said Theodore Parker was first apprehended in said District of Massachusetts, after committing the aforesaid offence, against the peace and dignity of the said United States, and contrary to the form of the statute in such case made and provided. A true bill.
ENOCH PATTERSON, JR., Foreman.
B.F. HALLETT, United States Attorney for the District of Massachusetts.
Similar indictments were found against Mr. Phillips, Mr. Stowell, Rev. T.W. Higginson, John Morrison, Samuel T. Proudman, and John C. Cluer.
Mr. Parker was arraigned on Wednesday, November 29th, and ordered to recognize in bonds of $1,500 for his appearance at that Court, on the 5th of March, 1855. His bondsmen were Messrs. Samuel May, Francis Jackson, and John R. Manley; his counsel were Hon. John P. Hale, and Charles M. Ellis, Esq. The other gentlemen were arraigned afterwards at different times.
After considerable uncertainty about the engagements of Hon. Justice Curtis, Tuesday, April 3d, was fixed for the commencement of the trials. At that time there appeared as counsel for the government, Hon. Benjamin F. Hallett, District Attorney, and Elias Merwin, Esq., formerly a law partner of Judge Curtis; on the other side were Hon. John P. Hale, and Charles M. Ellis, Esq., for Mr. Parker; Wm. L. Burt, Esq., John A. Andrew, Esq., and H.F. Durant, Esq., counsel for Messrs. Phillips, Higginson, Stowell, Bishop, Morrison, Proudman, and Cluer.
Mr. Hale, as senior counsel, stated to the court that the counsel for the defendants in several of the cases had conferred, and concluded—on the supposition that the Court and Government would assent to the plan as most for their own convenience, as well as that of the defendants' counsel—to file the like motion on the different cases; and, instead of each counsel going over the whole ground for each case, to divide the matter presented for debate, and for each to discuss some particular positions on behalf of them all. This was assented to; and motions, of which the following is a copy, were filed in the several cases:—
CIRCUIT COURT OF THE UNITED STATES, MASSACHUSETTS DISTRICT, SS.
United States by Indictment v. Theodore Parker.
And now said Theodore Parker comes and moves that the indictment against him be quashed, because,
"1. The writ of venire for the jury that found said indictment was directed to and returned by Watson Freeman, the Marshal, who was not an indifferent person, and it was not served and returned as the law directs.
"2. Because said Jury was not an impartial Jury of the District, designated as the laws require, but the jury Districts for this court embrace but a portion of the District and of the population, and said jury was in fact chosen and designated from but a fraction of the District and contrary to law.
"3. Because the matters and things alleged in said indictment do not constitute any crime under the statute on which said indictment is framed, the said statute not embracing them, or being, so far as it might embrace them, repealed by the statute of eighteen hundred and fifty.
"4. Because said indictment does not allege and set forth fully and sufficiently the authority and the proceedings whereon the alleged warrant and order were based, or facts sufficient to show that the alleged process and order were lawfully issued by any person duly authorized, and his authority and jurisdiction, and that the same were within such jurisdiction, and issued by the authority of the law, and originated, issued, and directed as the law prescribes; said warrant and order not being alleged to have issued from any court or tribunal of general or special jurisdiction, but by a person vested with certain specific statute authority.
"5. Because said indictment and the several counts thereof are bad on the face of them, as follows, viz.:—
"First, it nowhere appearing that the same were found by a grand-jury, because the second and third counts do not conclude, against the form of the statute, and have no conclusion, because the third and fourth counts do not set forth the estate, degree, or mystery of the person therein charged.
"Because said indictment and the counts thereof are repugnant and inconsistent, the same being based on an alleged obstruction, resistance, and opposition to the service of an action, order, or warrant, which is therein averred to have been already served, executed, and returned.
"Because the first and fifth counts are double.
"Because the alleged order of May 25th, referred to therein, was a void and illegal, order.
"Because, if the alleged warrant was served as therein alleged, said Watson Freeman did not, and by law could not thereafter, hold the person described therein, under any process or order.
"And because the same do not set forth and allege fully and specifically the acts charged to be offences against the statute, so as to inform said party charged, of the nature and cause of the accusation.
"6. Because the warrant set forth and referred to therein was void on its face, and issued from and ran into a jurisdiction not authorized by law, and directed the arrest of a person without legal cause, and because said indictment is otherwise bad, uncertain, and insufficient."
Mr. Wm. L. Burt commenced the argument of the motions, and presented several of the points. He was followed by Mr. C.M. Ellis, J.A. Andrew, and H.F. Durant, who severally discussed some of the grounds of the motions.
Elias Merwin, Esquire, and Mr. Attorney Hallett, replied.
The Court stated that they did not wish to hear Hon. John P. Hale, who was about to rejoin and close in support of the motion, and decided that the allegation, on the indictment, that Edward G. Loring was a Commissioner of the Circuit Court of the United States for said District, was not a legal averment that he was such a Commissioner as is described in the bill of 1850, and therefore the indictments were bad.
The Court said they supposed it to be true that Mr. Loring was such a Commissioner, and that his authority could be proved by producing the record of his appointment; that they did not suppose the absence of this averment could be of any practical consequence to the defendants, so far as respected the substantial merits of the cases; and it was true the objection to the indictment was "technical;" but they held it sufficient, notwithstanding the averment that the warrant was "duly issued," and ordered the indictment against Stowell to be quashed. On every other point, save that that the Court could properly construct the Jury roster and return the Jury from a portion of the District, the Judge said they would express no opinion.
Mr. Hallett insisted on his right to enter a nolle prosequi in the other cases; and the Judges decided that, though all the cases had been heard upon the motion, yet as it could make no difference whether an entry were made that this indictment be quashed, or an entry of nolle prosequi, the Attorney might enter a nolle prosequi if he chose to do so then, before the Court passed any order on the motions.
Mr. Hallett accordingly entered a nolle prosequi in all the other cases, and the whole affair was quashed.[3]
[Footnote 3: See Law Reporter for June, 1855.]
DEFENCE.
MAY IT PLEASE THE COURT:
GENTLEMEN OF THE JURY.—It is no trifling matter which comes before you this day. You may hereafter decide on millions of money, and on the lives of your fellow men; but it is not likely that a question of this magnitude will ever twice be brought before the same jurymen. Opportunities to extend a far-reaching and ghastly wickedness, or to do great service for mankind, come but seldom in any man's life. Your verdict concerns all the people of the United States; its influence will reach to ages far remote, blessing or cursing whole generations not yet born. The affair is national in its width of reach,—its consequences of immense duration.
In addressing you, Gentlemen, my language will be more didactic than rhetorical, more like a lecture, less like a speech; for I am not a lawyer but a minister, and do not aim to carry a Measure, which with you will go of its own accord, so much as to set forth a Principle that will make such prosecutions as impossible hereafter, as a conviction now is to-day.
Gentlemen, I address you provisionally, as Representatives of the People. To them, my words are ultimately addressed,—to the People of the Free States of America. I must examine many things minutely, not often touched upon in courts like this. For mine is a Political Trial; I shall treat it accordingly. I am charged with no immoral act—with none even of selfish ambition. It is not pretended that I have done a deed, or spoken a word, in the heat of passion, or vengeance, or with calculated covetousness, to bring money, office, or honor, to myself or any friend. I am not suspected of wishing to do harm to man or woman; or with disturbing any man's natural rights. Nay, I am not even charged with such an offence. The Attorney and the two Judges are of one heart and mind in this prosecution; Mr. Hallett's "Indictment" is only the beast of burthen to carry to its own place Mr. Curtis's "Charge to the Grand-Jury," fit passenger for fitting carriage! The same tree bore the Judge's blossom in June, and the Attorney's fruit in October,—both reeking out the effluvia of the same substance. But neither Attorney nor Judge dares accuse me of ill-will which would harm another man, or of selfishness that seeks my own private advantage. No, Gentlemen of the Jury, I am on trial for my love of Justice; for my respect to the natural Rights of Man; for speaking a word in behalf of what the Declaration of Independence calls the "self-evident" Truth,—that all men have a natural, equal, and unalienable Right to Life, Liberty, and the pursuit of Happiness. I am charged with words against what John Wesley named, the "Sum of all Villanies," against a national crime so great, that it made freethinking Mr. Jefferson, with all his "French Infidelity," "tremble" when he remembered "that God is just." I am on trial for my manly virtue,—a Minister of the Christian Religion on trial for keeping the Golden Rule! It is alleged that I have spoken in Boston against kidnapping in Boston; that in my own pulpit, as a minister, I have denounced Boston men for stealing my own parishioners; that as a man, in Faneuil Hall, the spirit of James Otis, of John Hancock, and three Adams's about me, with a word I "obstructed" the Marshal of Boston and a Boston Judge of Probate, in their confederated attempts to enslave a Boston man. When the Government of the United States has turned kidnapper, I am charged with the "misdemeanor" of appealing from the Atheism of purchased officials to the Conscience of the People; and with rousing up Christians to keep the golden rule, when the Rulers declared Religion had nothing to do with politics and there was no Law of God above the fugitive slave bill!
Such are the acts charged. Gentlemen of the Jury, you are summoned here to declare them a Crime, and then to punish me for this "offence!" You are the Axe which the Government grasps with red hand to cleave my head asunder. It is a trial where Franklin Pierce, transiently President of the United States, and his official coadjutors,—Mr. Caleb Cushing, Mr. Benj. R. Curtis, and Mr. Benj. F. Hallett,—are on one side, and the People of the United States on the other. As a Measure, your decision may send me to jail for twelve months; may also fine me three hundred dollars. To me personally it is of very small consequence what your verdict shall be. The fine is nothing; the imprisonment for twelve months—Gentlemen, I laugh at it! Nay, were it death, I should smile at the official gibbet. A verdict of guilty would affix no stain to my reputation. I am sure to come out of this trial with honor—it is the Court that is sure to suffer loss—at least shame. I do not mean the Court will ever feel remorse, or even shame, for this conduct; I am no young man now, I know these men,—but the People are sure to burn the brand of shame deep into this tribunal. The blow of that axe, if not parried, will do me no harm.
But it is not I, merely, now put to trial. Nay, it is the unalienable Rights of Humanity, it is truths self-evident. For on the back of that compliant Measure, unseen, there rides a Principle. The verdict expected of you condemns liberal institutions: all Religion but priestcraft—the abnegation of religion itself; all Rights but that to bondage—the denial of all rights. The word which fines me, puts your own purse in the hands of your worst enemies; the many-warded key which shuts me in jail, locks your lips forever—your children's lips forever. No complaint against oppression hereafter! Kidnapping will go on in silence, but at noonday, not a minister stirring. Meeting-houses will be shut; all court houses have a loaded cannon at their door, chains all round them, be stuffed with foreign soldiers inside, while commissioners swear away the life, the liberty, and even the Estate of the subjected "citizens." All Probate Judges will belong to the family of man-stealers. Faneuil Hall will be shut, or open only for a "Union Meeting," where the ruler calls together his menials to indorse some new act of injustice,—only creatures of the Government, men like the marshal's guard last June, allowed to speak words paid for by the People's coward sweat and miserable blood. The blow which smites my head will also cleave you asunder from crown to groin.
Your verdict is to vindicate Religion with Freedom of Speech, and condemn the stealing of men; or else to confirm Kidnapping and condemn Religion with Freedom of Speech. You are to choose whether you will have such men as Wendell Phillips for your advisers, or such as Benjamin F. Hallett and Benjamin R. Curtis for your masters, with the marshal's guard, for their appropriate servants. Do you think I doubt how you will choose?
Already a power of iniquity clutches at your children's throat; stabs at their life—at their soul's life. I stand between the living tyrant and his living victim; aye, betwixt him and expected victims not yet born,—your children, not mine. I have none to writhe under the successful lash which tyrants now so subtly braid therewith, one day, to scourge the flesh of well-descended men. I am to stand the champion of human Rights for generations yet unborn. It is a sad distinction! Hard duties have before been laid on me,—none so obviously demanding great powers as this. Whereto shall I look up for inspiring aid? Only to Him who gave words to the slow tongue of Moses and touched with fire Esaias' hesitating lips, and dawned into the soul of tent-makers and fishermen with such great wakening light, as shining through them, brought day to nations sitting in darkness, yet waiting for the consolation. May such Truth and Justice enable me also, to speak a testimony unto the Gentiles; He who chose the weak things, to bring to nought the mighty, may not despise such humble services as mine.
* * * * *
Gentlemen of the Jury, my ministry deals chiefly with the Laws of God, little with the statutes of men. My manhood has been mainly passed in studying absolute, universal truth, teaching it to men, and applying it to the various departments of life. I have little to do with courts of law. Yet I am not now altogether a stranger to the circuit court room of the United States, having been in it on five several occasions before.
1. A Polish exile,—a man of famous family, ancient and patrician before Christendom had laid eyes on America, once also of great individual wealth, a man of high rank alike acquired and inherited, once holding a high place at the court of the Czar,—became a fugitive from Russian despotism, seeking an asylum here; he came to the circuit court room to lecture on the Roman Law. I came to contribute my two mites of money, and receive his wealth of learning.
2. The next time, I came at the summons of Thomas Sims. For a creature of the slave-power had spontaneously seized that poor and friendless boy and thrust him into a dungeon, hastening to make him a slave,—a beast of burthen. He had been on his mock trial seven days, and had never seen a Judge, only a commissioner, nor a Jury; no Court but a solitary kidnapper. Some of his attendants had spoken of me as a minister not heedless of the welfare and unalienable rights of a black man fallen among a family of thieves. I went to the court house. Outside it was belted with chains. In despotic Europe I had seen no such spectacle, save once when the dull tyrant who oppressed Bavaria with his licentious flesh, in 1844 put his capital in a brief state of siege and chained the streets. The official servant of the kidnapper, club in hand, a policeman of this city, goaded to his task by Mayor Bigelow and Marshal Tukey,—men congenitally mingled in such appropriate work,—bade me "Get under the chain." I pressed it down and went over. The Judges of our own Supreme Court, they went under,—had gone out and in, beneath the chain! How poetry mingles with fact! The chain was a symbol, and until this day remaineth the same chain, untaken away in the reading of the fugitive slave bill; and when the law of Massachusetts is read, the chain is also upon the neck of that court! Within the court house was full of armed men. I found Mr. Sims in a private room, illegally, in defiance of Massachusetts law, converted into a jail to hold men charged with no crime. Ruffians mounted guard at the entrance, armed with swords, fire-arms, and bludgeons. The door was locked and doubly barred besides. Inside the watch was kept by a horrid looking fellow, without a coat, a naked cutlass in his hand, and some twenty others, their mouths nauseous with tobacco and reeking also with half-digested rum paid for by the city. In such company, I gave what consolation Religion could offer to the first man Boston ever kidnapped,—consolations which took hold only of eternity, where the servant is free from his master, for there the wicked cease from troubling. I could offer him no comfort this side the grave.
3. I visited the United States court a third time. A poor young man had been seized by the same talons which subsequently griped Sims in their poison, deadly clutch. But that time, wickedness went off hungry, defeated of its prey; "for the Lord delivered him out of their hands," and Shadrach escaped from that Babylonish furnace, heated seven times hotter than its wont: no smell of fire had passed on him. But the rescue of Shadrach was telegraphed as "treason." The innocent lightning flashed out the premeditated and legal lie,—"it is levying war!" What offence it was in that Fourth One who walked with the Hebrew children, "making their good confession," and sustained the old Shadrach, Meshach, and Abednego, I know not. But the modern countrymen of the African Shadrach, charged with some great crime, were haled into this court to be punished for their humanity! I came to look on these modern Angels of the Deliverance, to hear counsel of Mr. Dana, then so wise and humane, and to listen to the masterly eloquence which broke out from the great human heart of my friend, Mr. Hale, and rolled like the Mississippi, in its width, its depth, its beauty, and its continuous and unconquerable strength.
4. The fourth time, a poor man had been kidnapped, also at night, and forced into the same illegal jail. He sat in the dock—an innocent man, to be made into a beast. The metamorphosis had begun;—he was already in chains and his human heart seemed dead in him; sixty ruffians were about him, aiding in this drama, hired out of the brothels and rum-shops for a few days, the lust of kidnapping serving to vary the continual glut of those other and less brutal appetites of unbridled flesh. While that "trial" lasted, whoredom had a Sabbath day, and brawlers rested from their toil. Opposite sat the Boston Judge of Probate, and the Boston District Attorney,—the Moses and Elias of this inverted transfiguration; there sat the marshal, two "gentlemen" from Virginia, claiming that a Boston man was their beast of burthen, owing service and labor in Richmond; two "lawyers," "members of the Suffolk bar," pistols in their coats, came to support the allegation and enforce the claim. Honorable men stood up to defend him. There is one of them,—to defend me [Charles M. Ellis.] You know very well the rest of that sad story,—the mock trial of Anthony Burns lasted from May 25th till June 2d. I was here in all the acts of that Tragedy. My own life was threatened; friend and foe gave me public or anonymous warning. I sat between men who had newly sworn to kill me, my garments touching theirs. The malaria of their rum and tobacco was an offence in my face. I saw their weapons, and laughed as I looked those drunken rowdies in their coward eye. They touch me!
5. The fifth time I came here at the summons of an officer of this court,—very politely delivered, let me say it to his credit,—indicted and arrested for a "misdemeanor." I gave bail and withdrew.
6. The sixth time,—Gentlemen,—it is the present, whereof I shall erelong have much to say.
* * * * *
At the first visit I found only scholarly and philanthropic gentlemen, coming out of sympathy with a Polish exile, a defeated soldier of freedom, from his broken English to learn sound Roman Law. On each of the other visits I have been in quite different company. I have invariably met this Honorable Court, its kinsfolk and its most intimate friends,—some member of the family of the distinguished Judge, now fitly presiding over this trial.
1. It was Mr. George T. Curtis, the only brother of the honorable Justice now on the bench,—born of the same mother and father,—who had the glory of kidnapping Mr. Sims; it was he who seized Shadrach, and gave such witness against one of the Angels of the Deliverance, and then came back and enlarged his testimony; it was he who declared the rescue an act of "treason;" he who hung the court house in chains, and brought down the pliant neck of the Massachusetts Judges beneath that symbolic line of linked fetters long drawn out. To what weak forces will such necks bow when slavery commands!
2. It was the honorable Judge now on the distinguished bench who tried men for the rescue of Shadrach. How he tried them is well known.
3. It was Edward G. Loring, another of this family so distinguished, who kidnapped Mr. Burns and held him in irons; he whose broom swept up together the marshal's guard; he who advised Mr. Burns's counsel to make no defence,—"put no obstructions in the way of his going back, as he probably will;" he who, in the darkness of midnight, sought to sell his victim, before he had examined the evidence which might prove him a free man; he who delivered him up as a slave, against evidence as against law.
4. Another of the same family, William W. Greenough, brother-in-law of Hon. Judge Curtis, was one of the grand-jury which found the indictment against me, and "the most active of all in that work."
5. When I came here on the 29th of last November, the Hon. Judge Curtis sat on the bench and determined the amount of my bail, and the same eye which had frowned with such baleful aspect on the rescuers of Shadrach, quailed down underneath my look and sought the ground.
* * * * *
In thus mentioning my former visits to the court, I but relate the exploits of the Hon. Justice Curtis, of his kinsfolk and friends, adding to their glory and their renown. Their chief title to distinction rests on their devotion to the fugitive slave bill. It and their honor are "one and inseparable." Once only humanity and good letters brought me here, I met only scholars and philanthropists; on five other occasions, when assaults on freedom compelled my attendance, I have been confronted and surrounded with the loyalty of the distinguished Judge and his kinsfolk and friends, valiantly and disinterestedly obeying the fugitive slave bill "with alacrity;" patriotically conquering their prejudices against man-stealing—if such they ever had;—and earning for themselves an undying reputation by "saving the Union" from Justice, Domestic Tranquillity, general Welfare, and the Blessings of Liberty.
If I am to be arraigned for any act, I regard it as a special good fortune that I am charged with such deeds, with seeking to arouse the noblest emotions of Human Nature; and by means of the grandest Ideas which Human History has brought to light. I could not have chosen nobler deeds in a life now stretching over nearly half a hundred years. I count it an honor to be tried for them. Nay, it adds to my happiness to look at the Court which is to try me—for if I were to search all Christendom through, nay, throughout all Heathendom, I know of no tribunal fitter to try a man for such deeds as I have done. I am fortunate in the charges brought; thrice fortunate in the judges and the attorney,—the Court which is to decide;—its history and character are already a judgment.
6. For my sixth visit, I was recognized to appear on the fifth of March, 1855—the eighty-fifth anniversary of the Boston Massacre. I might have been bound over to any other of the great days of American history—22d of December, 19th of April, 17th of June, or the 4th of July. But as I am the first American ever brought to trial for a speech in Faneuil Hall against kidnapping; as I am the first to be tried under the act of 1790 for "obstructing an officer" with an argument, committing a "misdemeanor" by a word which appeals to the natural justice of mankind, so there could not perhaps be a fitter time chosen. For on the fifth of March, 1770, British despotism also delivered its first shot into the American bosom. Not far from this place the hand of George III. wounded to death five innocent citizens of Boston,—one of them a negro. It was the first shot Britain ever fired into the body of the American people, then colonial subjects of the king-power. That day the fire was not returned,—only with ringing of bells and tumult of the public, with words and resolutions. The next day that American blood lay frozen in the street. Soon after the British government passed a law exempting all who should aid an officer in his tyranny from trial for murder in the place where they should commit their crime. Mr. Toucey has humbly copied that precedent of despotism. It was very proper that the new tyranny growing up here, should select that anniversary to shoot down freedom of thought and speech among the subjects of the slave-power. I welcomed the omen. The Fifth of March is a red-letter day in the calendar of Boston. The Court could hardly have chosen a better to punish a man for a thought and a word, especially a Boston man, for such a word in Faneuil Hall—a word against man-stealing. But I knew the case would never come to trial on that day—of course it was put off.
Mr. Sims and Mr. Burns were accused of no crime but birth from a mother whom some one had stolen. They had only a mock trial, without due process of law, with no judge, no jury, no judicial officer. But I, accused of a grave offence, am to enjoy a trial with due process of law. It is an actual judge before me and another judge at his side, both judicial officers known to the constitution. I know beforehand the decision of the court—its history is my judgment. Justice Curtis's Charge of last June, would make my daily talk a "misdemeanor," my public preaching and my private prayers a "crime," nay, my very existence is constructively an "obstruction" to the marshal. On that side my condemnation is already sure.
But there is another element. Gentlemen of the Jury, the judges and attorney cannot lay their hand on me until you twelve men with one voice say, "Yes! put him in jail." In the mock trial of Sims and Burns it was necessary to convince only a single official of the United States Court, a "ministerial" officer selected and appointed to do its inferior business, a man who needed no conviction, no evidence but the oath of a slave-hunter and the extorted "admission" of his victim, an official who was to have ten dollars for making a slave, five only for setting free a man! But you are a Massachusetts Jury, not of purchased officials, but of honest men. I think you have some "prejudices" to conquer in favor of justice. It has not appeared that you are to be paid twice as much for sending me to jail, as for acquitting me of the charge. I doubt that you have yet advised my counsel to make no defence, "put no obstructions in the way" of my being sent to jail as "he probably will."
Gentlemen, a United States Commissioner has his place on condition that he performs such services as his masters "require." These United States Judges have their seat in consequence of services rendered to the ruling power of America, and for others of like sort yet to be paid to the stealers of men. Other rewards shine before them alluring to new service,—additional salary can pay additional alacrity. But you, Gentlemen, are not office-holders nor seekers of office, not hoping to gain money, or power, or honor, by any wickedness. You are to represent the unsophisticated Conscience of the People,—not the slave-power, but the power of Freedom.
It is to you I shall address my defence! MY defence? No, Gentlemen, YOUR defence, the defence of your own Rights, inherent in your national Institutions as Americans, ay, in your Nature as Men. It is a singular good fortune that to you, as judges, I am pleading your own cause. You have more interest at stake than I. For at death my name will perish, while children and children's children, I trust, will gently mingle your memories in that fair tide of human life which never ends.
* * * * *
So much have I said by way of introduction, treating only of the accidents pertaining to this case. I will now come to the Primary Qualities and Substance thereof.
This is a Political Trial. In form, I am charged with violating a certain statute never before applied to actions like mine; never meant to apply to such actions; not legally capable of such application. But in fact, my offence is very different from what the indictment attempts to set forth. The judges know this; the attorney knows it, and "never expected to procure a conviction." It is your cause, even more than mine, that I plead. So it concerns you to understand the whole matter thoroughly, that you may justly judge our common cause. To make the whole case clear, I will land it out into four great parcels of matter, which your mind can command at once, and then come to the details of each, ploughing it all over before your face, furrow by furrow. I shall speak,
I. Of the State of Affairs in America which has led to this prosecution,—the Encroachments of a Power hostile to Democratic Institutions.
II. Of the Mode of Operation pursued by this Encroaching Power, in other times and in our own,—of Systematic Corruption of the Judiciary.
III. Of the great Safeguard which has been found serviceable in protecting Democratic Institutions and the Rights of Man they are designed to defend,—of the Trial by Jury.
IV. Of the Circumstances of this special case, UNITED STATES versus THEODORE PARKER.
I shall speak of each in its order, and begin at the head.
I. OF THE STATE OF AFFAIRS IN AMERICA, WHICH HAS LED TO THIS PROSECUTION—THE ENCROACHMENTS OF A POWER HOSTILE TO DEMOCRATIC INSTITUTIONS.
In a republic where all emanates from the People, political institutions must have a Basis of Idea in the Nation's Thought, before they can acquire a Basis of Fact in the Force of the Nation. Now in America there are two diverse Ideas recognized as principles of Action—the Idea of Freedom and the Idea of Slavery. Allow me to read my analysis and description of each.
The Idea of Freedom first got a national expression on the Fourth of July, 1776. Here it is. I put it in a philosophic form. There are five points to it.
First, All men are endowed by their Creator with certain natural rights, amongst which is the right to life, liberty, and the pursuit of happiness.
Second, These rights are unalienable; they can be alienated only by the possessor thereof; the father cannot alienate them for the son, nor the son for the father; nor the husband for the wife, nor the wife for the husband; nor the strong for the weak, nor the weak for the strong; nor the few for the many, nor the many for the few; and so on.
Third, In respect to these, all men are equal; the rich man has not more, and the poor less; the strong man has not more, and the weak man less:—all are exactly equal in these rights, however unequal in their powers.
Fourth, It is the function of government to secure these natural, unalienable, and equal rights to every man.
Fifth, Government derives all its divine right from its conformity with these ideas, all its human sanction from the consent of the governed.
That is the Idea of Freedom. I used to call it "the American Idea;" that was when I was younger than I am to-day. It is derived from human nature; it rests on the immutable Laws of God; it is part of the natural religion of mankind. It demands a government after natural Justice, which is the point common between the conscience of God and the conscience of mankind; it is the point common also between the interests of one man and of all men.
Now this government, just in its substance, in its form must be democratic: that is to say, the government of all, by all, and for all. You see what consequences must follow from such an idea, and the attempt to reenact the Law of God into political institutions. There will follow the freedom of the people, respect for every natural right of all men, the rights of their body and of their spirit—the rights of mind and conscience, heart and soul. There must be some restraint—as of children by their parents, as of bad men by good men; but it will be restraint for the joint good of all parties concerned; not restraint for the exclusive benefit of the restrainer. The ultimate consequence of this will be the material and spiritual welfare of all—riches, comfort, noble manhood, all desirable things.
That is the Idea of Freedom. It appears in the Declaration of Independence; it reappears in the Preamble to the American Constitution, which aims "to establish Justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of Liberty." That is a religious idea; and when men pray for the "Reign of Justice" and the "Kingdom of Heaven" to come on earth politically, I suppose they mean that there may be a Commonwealth where every man has his natural rights of mind, body, and estate.
* * * * *
Next is the Idea of Slavery. Here it is. I put it also in a philosophic form. There are three points which I make.
First, There are no natural, unalienable, and equal rights, wherewith men are endowed by their Creator; no natural, unalienable, and equal right to life, liberty, and the pursuit of happiness.
Second, There is a great diversity of powers, and in virtue thereof the strong man may rule and oppress, enslave and ruin the weak, for his interest and against theirs.
Third, There is no natural law of God to forbid the strong to oppress the weak, and enslave and ruin the weak.
That is the Idea of Slavery. It has never got a national expression in America; it has never been laid down as a Principle in any act of the American people, nor in any single State, so far as I know. All profess the opposite; but it is involved in the Measures of both State and Nation. This Idea is founded in the selfishness of man; it is atheistic.
The idea must lead to a corresponding government; that will be unjust in its substance,—for it will depend not on natural right, but on personal force; not on the Constitution of the Universe, but on the compact of men. It is the abnegation of God in the universe and of conscience in man. Its form will be despotism,—the government of all, by a part, for the sake of a part. It may be a single-headed despotism, or a despotism of many heads; but whether a Cyclops or a Hydra, it is alike "the abomination which maketh desolate." Its ultimate consequence is plain to foresee—poverty to a nation, misery, ruin.
* * * * *
These two Ideas are now fairly on foot. They are hostile; they are both mutually invasive and destructive. They are in exact opposition to each other, and the nation which embodies these two is not a figure of equilibrium. As both are active forces in the minds of men, and as each idea tends to become a fact—a universal and exclusive fact,—as men with these ideas organize into parties as a means to make their idea into a fact,—it follows that there must not only be strife amongst philosophical men about these antagonistic Principles and Ideas, but a strife of practical men about corresponding Facts and Measures. So the quarrel, if not otherwise ended, will pass from words to what seems more serious; and one will overcome the other.
So long as these two Ideas exist in the nation as two political forces, there is no national unity of Idea, of course no unity of action. For there is no centre of gravity common to Freedom and Slavery. They will not compose an equilibrious figure. You may cry "Peace! Peace!" but so long as these two antagonistic Ideas remain, each seeking to organize itself and get exclusive power, there is no peace; there can be none.
The question before the nation to-day is, Which shall prevail—the Idea and Fact of Freedom, or the Idea and the Fact of Slavery; Freedom, exclusive and universal, or Slavery, exclusive and universal? The question is not merely, Shall the African be bond or free? but, Shall America be a Democracy or a Despotism? For nothing is so remorseless as an idea, and no logic is so strong as the historical development of a national idea by millions of men. A measure is nothing without its Principle. The Idea which allows Slavery in South Carolina will establish it also in New England. The bondage of a black man in Alexandria imperils every white woman's daughter in Boston. You cannot escape the consequences of a first Principle more than you can "take the leap of Niagara and stop when half-way down." The Principle which recognizes Slavery in the Constitution of the United States would make all America a Despotism, while the Principle which made John Quincy Adams a free man would extirpate Slavery from Louisiana and Texas. It is plain America cannot long hold these two contradictions in the national consciousness. Equilibrium must come.[4]
[Footnote 4: See this statement in Mr. Parker's Additional Speeches, Addresses, and Occasional Sermons. Boston, 1855, vol. ii. p. 250, et seq.]
These two ideas are represented by two parties which aim at the ultimate organization of their respective doctrines, the party indicating the special tendency towards Democracy or Despotism. The Party of Freedom is not yet well organized; that of Slavery is in admirable order and discipline. These two parties are continually at war attended with various success.
1. In the individual States of the North, since the Revolution, the Party of Freedom has gained some great victories; it has abolished Personal Slavery in every northern State, and on a deep-laid foundation has built up Democratic Institutions with well proportioned beauty. The Idea of Freedom, so genial to the Anglo-Saxon, so welcome to all of Puritanic birth and breeding, has taken deep root in the consciousness of the great mass of the People at the North. In the severe simplicity of national deduction they will carry it to logical conclusions not yet foreseen by human providence. The free States are progressively democratic.
But in all the Northern States, and more especially in its cities,—and here chiefly among the men of exclusive intellectual culture and the votaries of commerce and its riches,—there are exceptional men who embrace the Idea of Slavery and belong to its Party. They know no law higher than the transient interest of their politics or their commerce, their ease or ambition. They may not theoretically hate the People, but they so love their own money, their own ease or pleasure, that practically they oppose what promotes the welfare of mankind, and seek their own personal advancement to the injury of the human race. These are Northern men with Southern "Principles." They have their Journals too well known in Boston to need mention here.
2. In the individual States of the South, the Idea and Party of Slavery has also gained great victories and been uniformly successful; it has extended and strengthened personal slavery, which has now a firmer hold in the minds of the controlling classes of Southern men,—the rich and "educated,"—than in 1776, or ever before. The Southern States are progressively despotic.
Still, in all the Southern States there are exceptional men, hostile to slavery,—the intelligent and religious from conviction, others from mere personal interest. These are Southern men with Northern Principles. They are much oppressed at home—kept from political advancement or social respectability, as much as democrats would be at Rome or Naples,—have no journals and little influence.
3. In the Federal Government, the warfare goes on, each party seeking for mastery over the whole United States—the contest is carried on in Congress, in all the local legislatures; newspapers, speeches, even sermons, resound with the din of battle. See what forces contend and with what results.
The nation lives by its productive industry, whereof there are these five chief departments:—Hunting and Fishing, the appropriation of the spontaneous live products of the land and sea; Agriculture, the use of the productive forces of the earth's surface; Mining, the appropriation of the metallic products of her bosom; Manufactures, the application of toil and thought to the products of Hunting and Fishing, Mining and Agriculture; Commerce, the exchange of value, distribution of the products of these four departments of industry, directly productive.
Hunting and Fishing, Mining, Manufactures, Commerce, are mainly in the hands of Northern men—the South is almost wholly Agricultural. Her wealth consists of land and slaves. In 1850 the fifteen slave States had not fourteen hundred millions of other property. In the South property, with its consequent influence, is in few hands—in the North it is wide spread.
Now the few controlling men of the South, the holders of land and slaves, have Unity of pecuniary Interest—the support of Slavery as a local measure,—for it is the source of their material wealth, and also a consequent Unity of political Idea, the support of Slavery as a universal Principle, for it is the source likewise of their political power. Accordingly the South presents against the North an even and well-disciplined front of veteran soldiers, is always hostile to Freedom, and as her "best educated" men devote much time to politics, making it the profession of their whole lives, it is plain they become formidable antagonists.
But the North has a great variety of conflicting interests, a great amount of intellectual activity, where education and its consequent habits of reading and thinking are so wide spread, and therefore a great variety of opinion. Accordingly there is not the same Unity of pecuniary Interest and of political Idea, which distinguishes the South. Besides, in the North the ablest and best educated men do not devote their time to the thankless and stormy calling of politics; Virginia cares for nothing but Negroes and Politics, her loins and her brains gender but this twofold product: Massachusetts and New York care for much beside. So the North does not present against the South an even and well-disciplined front of veteran soldiers, but a ragged, discordant line of raw recruits, enlisting for a short time with some special or even personal local interest to serve.
What makes the matter yet worse for us, Gentlemen of the Jury, is this: While the great mass of the people at the North, engrossed in direct productive industry, are really hostile to slavery, those absorbed in the large operations of commerce, taken as a whole class, feel little interest in the Idea of Freedom; nay, they are positively opposed to it. Before the African Slave-trade was treated like other kindred forms of piracy, as a capital crime, they had their ships in that felonious traffic; and now their vessels engage in the American Slave-trade and their hand still deals in the bodies of their fellow men. In all the great commercial cities, like Philadelphia, New York and Boston these men prevail, and are the "eminent citizens," overslaughing the press, the pulpit, the bar, and the court, with the Ideas of their lower law, and sweeping along all metropolitan and suburban fashion and respectability in their slimy flood. Hence the great cities of the North, governed by the low maxims of this class, have become the asylum of Northern men with Southern "Principles," and so the strong-hold of Slavery. And hitherto these great cities have controlled the politics of the Northern States, crowding the Apostles of Freedom out from the national board, and helping the party of slavery to triumph in all great battles.
Thus aided, for many years the South has always elected her candidate for the Presidency by the vote of the people. But the American Executive is twofold,—part Presidential, part Senatorial. Sometimes these two Executives are concordant, sometimes discordant. The Senatorial Executive has always carried the day against the less permanent Presidential power, except in the solitary case where General Jackson's unconquerable will and matchless popularity enabled him to master the senate itself, who "registered" his decrees, or "expunged" their own censure, just as the iron ruler gave orders.
Now by means of the control which the Northern Cities have over the Northern States, and such Commercial Men over those cities, it has come to pass that not only the Presidential, but also the Senatorial Executive, has long been hostile to the Idea of Freedom.
Gentlemen of the Jury, the direct consequence is obvious,—the Party of Slavery has long been the conqueror in the field of Federal politics. In the numerous and great conflicts between the two, Freedom has prevailed against Slavery only twice since the close of the Revolutionary War,—in prohibiting involuntary servitude in the North-west Territory in 1787, and in the abolition of the African Slave-trade in 1808. Her last triumph was forty-seven years ago,—nay, even that victory was really achieved twenty years before at the adoption of the constitution. In this warfare we have not gained a battle for freedom since 1788!
For a time it seemed doubtful which would triumph, though Slavery gained Kentucky and Tennessee, and Louisiana was purchased as slave soil in 1803. But in 1820 slavery became the obvious and acknowledged master in the Federal Territory, marched victorious over the Mississippi, planted itself in Missouri, and has subsequently taken possession of Mississippi, Alabama and Arkansas, all slave States; has purchased Florida; "reannexed" Texas; conquered Utah, New Mexico and California, all slave soil; and from Freedom and the North has just now reconquered Kansas and Nebraska. Ever since the Missouri Compromise in 1820 Slavery has been really the master, obviously so since the annexation of Texas in 1845. The slave-power appoints all the great national officers, executive, diplomatic, judicial, naval and military,—it controls the legislative departments. Look at this Honorable Court, Gentlemen, and recognize its power!
The idea of Slavery must be carried out to its logical consequence, so our masters now meditate two series of Measures, both necessary to the development of Slavery as a Principle.
(I.) African Slavery is to be declared a Federal Institution, national and sectional, and so extended into all the Territories of the United States. New soil is to be bought or plundered from Hayti, Spain, Mexico, South America "and the rest of mankind," that slavery may be planted there; that is the purpose of all the Official Fillibustering of the Government, and the Extra-official Fillibustering which it starts, or allows; Quitman "Enterprises," Kinney "Expeditions," Black Warrior and El Dorado "difficulties," all point to this; the "Ostend Conference" is a step in that direction; Slavery is to be restored to the so called "Free States," 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 violates the local laws of any State, he shall be tried by the fugitive slave bill court. Then the African Slave-trade is to be restored by federal enactments, or judicial decisions of the "Supreme Court of the United States." All these steps belong to Measure number One. The Supreme Court is ready to execute the commands of its lord. Soon you will see more "decisions" adverse to humanity.
(II.) The next movement is progressively to weaken and ultimately to destroy the Democratic Institutions of the North,—yes, also of the South. This design is indicated and sustained by some of the measures already mentioned as connected with the first purpose.
To this point tend the words of President Pierce addressed to the soldiers of 1812 on the 8th of January 1855, in which he speaks of such as "disseminate political heresies," that is, the Idea of Freedom; "revile the government,"—expose its hostility against the unalienable Rights of man; "deride our institutions,"—to wit, the patriarchal institution of Slavery; "sow political dissensions,"—advise men not to vote for corrupt tools of the government; "set at defiance the laws of the land,"—meaning the fugitive slave bill which commands kidnapping.
There belong the attempts of the Federal courts to enlarge their jurisdiction at the expense of State Rights; the cry, "Union first and Liberty afterwards;" the shout "No higher law," "Religion nothing to do with Politics."
Thence come the attacks made on the freedom of the pulpit, of the press, and all freedom of speech. The Individual State which preserves freedom must be put down,—the individual person who protests against it must be silenced. No man must hold a federal office,—executive, diplomatic, judicial, or "ministerial,"—unless he has so far conquered his "prejudices" in favor of the natural Rights of man that he is ready to enslave a brother with alacrity. All these steps belong to Measure number Two.
This latter Measure advances to its execution, realizing the Idea of Slavery, with subtle steps, yet creeps on rapid-moving feet. See how it has gained ground latterly. Obviously the fugitive slave bill struck only at the natural Rights of Colored men—as valuable as those of white men, but the colored are few and the white many,—the experiment must be made on the feebler body. But this despotism cannot enslave a black girl without thereby putting in peril the liberty of every white man. At first our masters only asked of Boston a little piece of chain, but just long enough to shackle the virtuous hands of Ellen Craft, a wife and mother, whom her Georgian "owner" wished to sell as a harlot at New Orleans! A meeting was summoned at Faneuil Hall, and Boston answered, "Yes, here is the chain. Let the woman-hunter capture Ellen Craft, make her a Prostitute at New Orleans. She is a virtuous wife and mother,—but no matter. Slavery is king and commands it. Let the 'owner' have his chain."
There is no escaping the consequence of a first Principle. Soon that little chain lengthened itself out, and coiled itself all round the court house, and how greedily your judges stooped to go under! This Anaconda of the Dismal Swamp wound its constricting twists about the neck of all your courts, and the Judges turned black in the face, and when questioned of law, they could not pronounce "Habeas Corpus," "Trial by Jury," nor utter a syllable for the Bible or the Massachusetts Constitution, but only wheeze and gurgle and squeak and gibber out their defences of Slavery! No, Boston could not bewray a woman wandering towards freedom, without chaining the court house and its judges, putting the town in a state of siege,—insolent soldiers striking at the people's neck. Now the attempt is making by this Honorable Court to put the same chain round Faneuil Hall, so that the old Cradle of Liberty shall no more rock to manhood the noble sons of freedom, but only serve as a nest that the spawn of Bondage may hibernate therein.
I am on trial because I hate Slavery, because I love freedom for the black man, for the white man, and for all the human Race. I am not arraigned because I have violated the statute on which the indictment is framed—no child could think it—but because I am an advocate of Freedom, because my Word, my Thoughts, my Feelings, my Actions, nay, all my Life, my very Existence itself, are a protest against Slavery. Despotism cannot happily advance unless I am silenced. It is very clear logic which indicts me. Private personal malice, deep, long cherished, rancorous, has doubtless jagged and notched and poisoned too the public sword which smites at my neck. Still it is the public sword of Slavery which is wielded against me. Against ME? Against YOU quite as much—against your children. For as Boston could not venture to kidnap a negro woman, without bringing down that avalanche of consequences connected with the Principle of Slavery,—without chains on her Judges, falsehood in her officers, blood in her courts, and drunken soldiers in her streets, and hypocrisy in her man-hunting ministers,—no more can she put me to silence alone. The thread which is to sew my lips together, will make your mouths but a silent and ugly seam in your faces. Slavery is Plaintiff in this case; Freedom Defendant. Before you as Judges, I plead your own cause—for you as defendant. I will not insult you by the belief or the fear that you can do other than right, in a matter where the law is so plain, and the Justice clear as noonday light. But should you decide as the wicked wish, as the court longs to instruct you, you doom your mouths to silence; you bow your manly faces to the ground, destine your memories to shame, and your children to bondage worse than negro slavery.
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Such, Gentlemen of the Jury, is the state of affairs leading to this Prosecution—such the past, present, and prospective Encroachments of a Power hostile to Democratic Institutions and the unalienable Rights they were designed to protect. Such also are the two Measures now in contemplation,—the Extension of African Bondage, and the Destruction of American Freedom.
II. LOOK NEXT AT THE MODE OF OPERATION HITHERTO PURSUED BY THIS ENCROACHING POWER, IN OTHER TIMES AND NATIONS, AND IN OUR OWN, SYSTEMATIC CORRUPTION OF THE JUDICIARY.
Here I shall show the process by which that Principle of Slavery becomes a Measure of political ruin to the People.
In substance Despotism is always the same, Spanish or Carolinian, but the form varies to suit the ethnologic nature and historical customs of different people. I shall mention two forms—one to illustrate, the other to warn.
(I.) The open Assumption of Power by military violence. This method is followed in countries where love of Individual Liberty is not much developed in the consciousness of the people, and where democratic institutions are not fixed facts in their history; where the nation is not accustomed to local self-government, but wonted to a strong central power directed by a single will. This form prevails in Russia, Turkey, and among all the Romanic tribes in Europe, and their descendants in America. Military usurpation, military rule is indigenous in France,—where two Napoleons succeed thereby,—in Italy, in Spain, and most eminently in Spanish America. But no people of the Teutonic family for any length of time ever tolerated a usurping soldier at the head of affairs, or submitted to martial arbitrary rule, or military violence in the chief magistrate. It is against our habit and disposition.
Neither Cromwell nor William of Orange could do with the Anglo-Saxon what it would have been impossible not to do with Spaniards or Italians. Even warlike Swiss—Teutonic tribes—will have a government with due process of law, not by the abrupt violence of the soldier. Washington could not have established a military monarchy in America had he been so wickedly disposed. Even William the Conqueror must rule the Saxons by Saxon law.
(II.) The corruption of the acknowledged safeguards of public security. This is attempted in nations who have a well-known love of individual liberty, and institutional defences thereof, the habit of Local Self-government by Democratic Law-making and Law-administering. For example, this experiment has been repeatedly made in England. The monarch seeking to destroy the liberty of the people, accomplishes his violent measure by the forms of peaceful law, by getting the judicial class of men on the side of despotism. Then all the wickedness can be done in the name, with the forms, and by "due process" of law, by regular officers thereof—done solemnly with the assistance of slow and public deliberation.
Gentlemen of the Jury, this is a matter of such importance to the People of America just now, that I must beg you to bear with me while I explain this subtle operation. I will select examples from the history of England which are easy to understand, because her blood is kindred to our own, and the institutions of the two countries are related as parent and child. And besides, her past history affords alike warning and guidance in our present peril.
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(I.) The first step in this process of political iniquity is, to appoint men for judges and other officers of the court, who know no law higher than the selfish will of the hand that feeds them, mere creatures of the rest [Transcriber's Note: for 'rest' read 'government'; see Errata].
I will select instances of this from the reign of the Stuart kings and one of their successors, from a period full of melancholy warning to America.
I will begin with James I. (1603-1625), the first King of New England. At his very accession he had high notions of his royal Prerogative, and maintained that all the privileges of the House of Commons were derived from his royal grant. "I am your King," said he, "I am placed to govern you, and I shall [must] answer for your errors." It was quite enough to answer for his own,—poor man. "Let me make the Judges," said he, "and I care not who makes the laws."
Accordingly for judicial officers he appointed such men as would execute his unlawful schemes for the destruction of public liberty. To such considerations was Francis Bacon mainly indebted for his elevation from one legal rank to another, until he reached the seat of the Lord Chancellor. A man whom Villers declared, "of excellent parts, but withal of a base and ungrateful temper, and an arrant knave, yet a fit instrument for the purposes of the government." He did not receive his appointment for that vast, hard-working genius which makes his name the ornament of many an age, but only for his sycophantic devotion to the royal will. Sir Edward Coke was promoted rapidly enough, whilst wholly subservient to the despotic court, but afterwards, though a miracle of legal knowledge, not equalled yet perhaps, he must not be appointed Lord Chancellor on account of "his occasional fits of independence." Chief Justice Ley was one of the right stamp, but it was thought "his subserviency might prove more valuable by retaining him to preside over the Court of King's Bench." "For in making the highest judicial appointments the only question was, what would suit the arbitrary schemes of governing the country."[5] Hobart had resisted some illegal monopolies of the all-powerful Buckingham, and he was "unfit for promotion."
[Footnote 5: 2 Campbell, 372, 374.]
James thought the Prerogative would be strengthened by the appointment of clergymen of the national church, perhaps the only class of men not then getting fired with love of liberty,—and made Williams, Bishop of Lincoln, Lord Keeper, a "man of rash and insolent, though servile temper, and of selfish, temporizing, and trimming political conduct," who at that time had never acted as "a judge except at the Waldegrave Petty Sessions in making an order of bastardy or allowing a rate for the Parish poor," and was "as ignorant of the questions coming before him as the door-keepers of his court." But he was subservient, and had pleased the King by preaching the courtly doctrine that "subjects hold their liberties and their property at the will of the Sovereign whom they are bound in every extremity passively to obey."[6] Men like Fleming and other creatures of the throne, sanctioning the King's abundant claim to absolute power, were sure of judicial distinction; while it was only the force of public opinion which gave the humblest place of honor to such able and well-studied lawyers as would respect the constitutional Rights of the People and the just construction of the laws, and at all hazards maintain their judicial independence. Ecclesiastics who taught that the King "is above the laws by his absolute power," and "may quash any law passed by Parliament," were sure of rapid preferment. Thus Bancroft was promoted; thus Abbot was pushed aside; and for his mean, tyrannical and subservient disposition Rev. William Laud was continually promoted in expectation of the services which, as Archbishop, he subsequently performed in the overthrow of the Liberty of the People. But time would fail me to read over the long dark list of men whose personal shame secured them "official glory."
[Footnote 6: 2 Campbell, 368, 374; 3 Howell State Trials, 824.]
In his address to the Judges in the Star-Chamber in 1616 James gave them this charge, "If there falls out a question which concerns any Prerogative or mysterie of State, deale not with it till you consult with the King or his Council, or both; for they are Transcendent Matters, and must not be slibberly carried with over rash wilfullnesse." "And this I commend unto your special care, as some of you of late have done very much, to blunt the edge and vaine popular humor of some lawyers at the Barre, that think they are not eloquent and bold-spirited enough, except they meddle with the King's Prerogative." "That which concerns the mysterie of the King's Power is not lawful to be disputed."[7] Gentlemen, that was worthy of some judicial charges which you and I have heard.
[Footnote 7: Speache in the Starre-Chamber, London, 1616.]
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Charles I. (1625-1659,) pursued the same course of tyranny by the same steps. Coventry could be implicitly relied on to do as commanded, and was made Lord Keeper in 1625. When the question of Ship-money was to be brought forward in 1636, Chief Justice Heath was thought not fit to be trusted with wielding the instrument of tyranny, and accordingly removed; "and Finch, well known to be ready to go all lengths, was appointed in his place." For he had steadfastly maintained that the King was absolute, and could dispense with law and parliament,—a fit person to be a Chief Justice, or a Lord Chancellor, in a tyrant's court, ready to enact iniquity into law. His compliance with the King's desire to violate the first principle of Magna Charta, "endeared him to the Court, and secured him further preferment as soon as any opportunity should occur." So he was soon made Lord Chancellor and raised to the peerage. Littleton had once been on the popular side, but deserted and went over to the Court—he was sure of preferment; and as he became more and more ready to destroy the liberties of the People, he was made Chief Justice, and finally Lord Chancellor in 1641. Lane was a "steady friend of the prerogative," and so was made Attorney-General to the Prince of Wales, and thence gradually elevated to the highest station.
Other Judicial appointments were continually made in the same spirit. Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the government questioned him to ascertain if he were "sound," and were shocked to hear him declare that the King had no right to levy taxes without consent of Parliament, or imprison his subjects without due process of law. He was "immediately dismissed from his office," (1626,) and Sir Nicolas Hyde appointed in his place. By such means the courts were filled with tools of the King or his favorites, and the pit digged for the liberties of the People, into which at last there fell—the head of the King!
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Charles II. and James II., (1655-1686,) did not mend the evil, but appointed for judges "such a pack as had never before sat in Westminster Hall." Shaftesbury and Guildford had the highest judicial honors. Lord Chancellor Finch, mentioned already, had been accused by the Commons of High Treason and other misdemeanors, but escaped to the continent, and returned after the Restoration. He was appointed one of the Judges to try the Regicides. Thus he "who had been accused of high treason twenty years before by a full parliament, and who by flying from their justice saved his life, was appointed to judge some of those who should have been his Judges."[8] He declared in Parliament that Milton, for services rendered to the cause of liberty while Latin Secretary to Cromwell, "deserved hanging."[9] |
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