"There is another criminal law of the United States to which I must call your attention, and give you in charge. It was enacted on the 13th of April, 1790, and is in the following words:—"'If any person shall knowingly or wilfully obstruct, resist, or oppose any officer of the United States, in serving, or attempting to serve, or execute any mesne process, or warrant, or any rule or order of any of the courts of the United States, or any other legal writ or process whatever, or shall assault, beat, or wound any officer, or other person duly authorized, in serving or executing any writ, rule, order, process, or warrant, aforesaid, such person shall, on conviction, be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars.'"You will observe, Gentlemen, that this law makes no provision for a case where an officer, or other person duly authorized, is killed by those unlawfully resisting him. That is a case of murder, and is left to be tried and punished under the laws of the State, within whose jurisdiction the offence is committed. Over that offence against the laws of the State of Massachusetts we have here no jurisdiction. It is to be presumed that the duly constituted authorities of the State will, in any such case, do their duty; and if the crime of murder has been committed, will prosecute and punish all who are guilty."Our duty is limited to administering the laws of the United States; and by one of those laws which I have read to you, to obstruct, resist, or oppose, or beat, or wound any officer of the United States, or other person duly authorized, in serving or executing any legal process whatsoever, is an offence against the laws of the United States, and is one of the subjects concerning which you are bound to inquire."It is not material that the same act is an offence both against the laws of the United States and of a particular State. Under our system of government the United States and the several States are distinct sovereignties, each having its own system of criminal law, which it administers in its own tribunals; and the criminal laws of a State can in no way affect those of the United States. The offence, therefore, of obstructing legal process of the United States is to be inquired of and treated by you as a misdemeanor, under the Act of Congress which I have quoted, without any regard to the criminal laws of the State, or the nature of the crime under these laws."This Act of Congress is carefully worded, and its meaning is plain. Nevertheless, there are some terms in it, and some rules of law connected with it, which should be explained for your guidance. And first, as to the process, the execution of which is not to be obstructed."The language of the Act is very broad. It embraces every legal process whatsoever, whether issued by a court in session, or by a judge, or magistrate, or commissioner acting in the due administration of any law of the United States. You will probably experience no difficulty in understanding and applying this part of the law."As to what constitutes an obstruction—it was many years ago decided, by Justice Washington, that to support an indictment under this law, it was not necessary to prove the accused used or even threatened active violence. Any obstruction to the free action of the officer, or his lawful assistants, wilfully placed in his or their way, for the purpose of thus obstructing him or them, is sufficient. And it is clear that if a multitude of persons should assemble, even in a public highway, with the design to stand together, and thus prevent the officer from passing freely along the way, in the execution of his precept, and the officer should thus be hindered or obstructed, this would of itself, and without any active violence, be such an obstruction as is contemplated by this law. If to this be added use of any active violence, then the officer is not only obstructed, but he is resisted and opposed, and of course the offence is complete, for either of them is sufficient to constitute it."If you should be satisfied that an offence against this law has been perpetrated, you will then inquire by whom; and this renders it necessary for me to instruct you concerning the kind and amount of participation which brings individuals within the compass of this law."And first, all who are present and actually obstruct, resist, or oppose, are of course guilty. So are all who are present leagued in the common design, and so situated as to be able, in case of need, to afford assistance to those actually engaged, though they do not actually obstruct, resist, or oppose. If they are present for the purpose of affording assistance in obstructing, resisting, or opposing the officers, and are so situated as to be able in any event which may occur, actually to aid in the common design, though no overt act is done by them, they are still guilty under this law. The offencedefined by this act is a misdemeanor; and it is rule of law that whatever participation, in case of felony, would render a person guilty, either as a principal in the second degree, or as an accessory before the fact, does, in a case of misdemeanor, render him guilty as a principal; in misdemeanors all are principals. And, therefore, in pursuance of the same rule, not only those who are present, but those who, though absent when the offence was committed, did procure, counsel, command, or abet others to commit the offence, are indictable as principal."Such is the law, and it would seem that no just mind could doubt its propriety. If persons having influence over others use that influence to induce the commission of crime, while they themselves remain at a safe distance, that must be deemed a very imperfect system of law which allows them to escape with impunity. Such is not our law. It treats such advice as criminal, and subjects the giver of it to punishment according to the nature of the offence to which his pernicious counsel has led. If it be a case of felony, he is by the common law an accessory before the fact, and by the laws of the United States and of this State, is punishable to the same extent as the principal felon. If it be a case of misdemeanor, the adviser is himself a principal offender, and is to be indicted and punished as if he himself had done the criminal act. It may be important for you to know what, in point of law, amounts to such an advising or counselling another as will be sufficient to constitute this legal element in the offence. It is laid down by high authority, that though a mere tacit acquiescence, or words, which amount to a bare permission, will not be sufficient, yet such a procurement may be, either by direct means, as by hire, counsel, or command, or indirect, by evincing an express liking, approbation, or assent to another's criminal design. From the nature of the case, the law can prescribe only general rules on this subject. My instruction to you is, that language addressed to persons who immediately afterwards commit an offence, actually intended by the speaker to incite those addressed to commit it, and adapted thus to incite them, is such a counselling or advising to the crime as the law contemplates, and the person so inciting others is liable to be indicted as a principal."In the case of theCommonwealthv.Bowen(13 Mass. R. 359), which was an indictment for counselling another to commit suicide, tried in 1816, Chief Justice Parker instructing the jury, and speaking for the Supreme Court of Massachusetts, said:—"'The government is not bound to prove that Jewett would not have hung himself, had Bowen's counsel never reached his ear. The very act of advising to the commission of a crime is of itself unlawful. The presumption of law is that advice has the influence and effect intended by the adviser, unless it is shown to have been otherwise; as that the counsel was received with scoff, or was manifestly rejected and ridiculed at the time it was given. It was said in the argument that Jewett's abandoned and depraved character furnishes ground to believe that he would have committed the act without such advice from Bowen. Without doubt he was a hardened and depraved wretch; but it is in man's nature to revolt at self-destruction. When a person is predetermined upon the commission of this crime, the seasonable admonitions of a discreet and respected friend would probably tend to overthrow his determination. On the other hand, the counsel of an unprincipled wretch, stating the heroism and courage the self-murderer displays, might induce, encourage, and fix the intention, and ultimately procure the perpetration of the dreadful deed; and if other men would be influenced by such advice, the presumption is that Jewett was so influenced. He might have been influenced by many powerful motives to destroy himself. Still the inducements might have been insufficient to procure the actual commission of the act, and one word of additional advice might have turned the scale.'"When applied—as this ruling seems to have been here applied—to a case in which the advice was nearly connected, in point of time, with the criminal act, it is, inmy opinion, correct. If the advice was intended by the giver to stir or incite to a crime—if it was of such a nature as to be adapted to have this effect, and the persons incited immediately afterwards committed that crime—it is a just presumption that they were influenced by the advice or incitement to commit it. The circumstances, or direct proof, may or may not be sufficient to control this presumption; and whether they are so, can duly be determined in each case, upon all its evidence."One other rule of law on this subject is necessary to be borne in mind—the substantive offence to which the advice or incitement applied must have been committed; and it is for that alone the adviser or procurer is legally accountable. Thus if one should counsel another to rescue one prisoner, and he should rescue another, unless by mistake; or if the incitement was to rescue a prisoner, and he commit a larceny, the inciter is not responsible. But it need not appearthat the precise time, or place, or means advised, were used. Thus if one incite A. to murder B., but advise him to wait until B. shall be at a certain place at noon, and A. murders B. at a different place in the morning, the adviser is guilty. So if the incitement be to poison, and the murderer shoots, or stabs. So if the counsel be to beat another, and he is beaten to death, the adviser is a murderer; for having incited another to commit an unlawful act, he is responsible for all that ensues upon its execution."These illustrations are drawn from cases of felonies, because they are the most common in the books and the most striking in themselves; but the principles on which they depend are equally applicable to cases of misdemeanor. In all such cases the real question is, whether the accused did procure, counsel, command, or abet the substantive offence committed. If he did, it is of no importance that his advice or directions were departed from in respect to the time, or place, or precise mode or means of committing it."Gentlemen: The events which have recently occurred in this city, have rendered it my duty to call your attention to these rules of law, and to direct you to inquire whether in point of fact the offence of obstructing process of the United States has been committed; if it has, you will present for trial all such persons as have so participated therein as to be guilty of that offence. And you will allow me to say to you that if you or I were to begin to make discriminations between one law and another, and say this we will enforce and that we will not enforce, we should not only violate our oaths, but so far as in us lies, we should destroy the liberties of our country, which rest for their basis upon the great principle that our country is governed by laws, constitutionally enacted, and not by men."In one part of our country the extradition of fugitives from labor is odious; in another, if we may judge from some transactions, the law concerning the extradition of fugitives from justice has been deemed not binding; in another still, the tariff laws of the United States were considered oppressive, and not fit to be enforced."Who can fail to see that the government would cease to be a government if it were to yield obedience to those local opinions? While it stands, all its laws must be faithfully executed, or it becomes the mere tool of the strongest faction of the place and the hour. If forcible resistance to one law be permitted practically to repeal it, the power of the mob would inevitably become one of the constituted authorities of the State, to be used against any law or any man obnoxious to the interests and passions of the worst or most excited part of the community; and the peaceful and the weak would be at the mercy of the violent."It is the imperative duty of all of us concerned in the administration of the laws to see to it that they are firmly, impartially, and certainly applied to every offence, whether a particular law be by us individually approved or disapproved. And it becomes all to remember, that forcible and concerted resistance to any law is civil war, which can make no progress but through bloodshed, and can have no termination butthe destruction of the government of our country, or the ruin of those engaged in such resistance. It is not my province to comment on events which have recently happened. They are matters of fact which, so far as they are connected with the criminal laws of the United States, are for your consideration. I feel no doubt that, as good citizens and lovers of our country, and as conscientious men, you will well and truly observe and keep the oath you have taken, diligently to inquire and true presentment make of all crimes and offences against the laws of the United States given you in charge."[193]
"There is another criminal law of the United States to which I must call your attention, and give you in charge. It was enacted on the 13th of April, 1790, and is in the following words:—
"'If any person shall knowingly or wilfully obstruct, resist, or oppose any officer of the United States, in serving, or attempting to serve, or execute any mesne process, or warrant, or any rule or order of any of the courts of the United States, or any other legal writ or process whatever, or shall assault, beat, or wound any officer, or other person duly authorized, in serving or executing any writ, rule, order, process, or warrant, aforesaid, such person shall, on conviction, be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars.'
"You will observe, Gentlemen, that this law makes no provision for a case where an officer, or other person duly authorized, is killed by those unlawfully resisting him. That is a case of murder, and is left to be tried and punished under the laws of the State, within whose jurisdiction the offence is committed. Over that offence against the laws of the State of Massachusetts we have here no jurisdiction. It is to be presumed that the duly constituted authorities of the State will, in any such case, do their duty; and if the crime of murder has been committed, will prosecute and punish all who are guilty.
"Our duty is limited to administering the laws of the United States; and by one of those laws which I have read to you, to obstruct, resist, or oppose, or beat, or wound any officer of the United States, or other person duly authorized, in serving or executing any legal process whatsoever, is an offence against the laws of the United States, and is one of the subjects concerning which you are bound to inquire.
"It is not material that the same act is an offence both against the laws of the United States and of a particular State. Under our system of government the United States and the several States are distinct sovereignties, each having its own system of criminal law, which it administers in its own tribunals; and the criminal laws of a State can in no way affect those of the United States. The offence, therefore, of obstructing legal process of the United States is to be inquired of and treated by you as a misdemeanor, under the Act of Congress which I have quoted, without any regard to the criminal laws of the State, or the nature of the crime under these laws.
"This Act of Congress is carefully worded, and its meaning is plain. Nevertheless, there are some terms in it, and some rules of law connected with it, which should be explained for your guidance. And first, as to the process, the execution of which is not to be obstructed.
"The language of the Act is very broad. It embraces every legal process whatsoever, whether issued by a court in session, or by a judge, or magistrate, or commissioner acting in the due administration of any law of the United States. You will probably experience no difficulty in understanding and applying this part of the law.
"As to what constitutes an obstruction—it was many years ago decided, by Justice Washington, that to support an indictment under this law, it was not necessary to prove the accused used or even threatened active violence. Any obstruction to the free action of the officer, or his lawful assistants, wilfully placed in his or their way, for the purpose of thus obstructing him or them, is sufficient. And it is clear that if a multitude of persons should assemble, even in a public highway, with the design to stand together, and thus prevent the officer from passing freely along the way, in the execution of his precept, and the officer should thus be hindered or obstructed, this would of itself, and without any active violence, be such an obstruction as is contemplated by this law. If to this be added use of any active violence, then the officer is not only obstructed, but he is resisted and opposed, and of course the offence is complete, for either of them is sufficient to constitute it.
"If you should be satisfied that an offence against this law has been perpetrated, you will then inquire by whom; and this renders it necessary for me to instruct you concerning the kind and amount of participation which brings individuals within the compass of this law.
"And first, all who are present and actually obstruct, resist, or oppose, are of course guilty. So are all who are present leagued in the common design, and so situated as to be able, in case of need, to afford assistance to those actually engaged, though they do not actually obstruct, resist, or oppose. If they are present for the purpose of affording assistance in obstructing, resisting, or opposing the officers, and are so situated as to be able in any event which may occur, actually to aid in the common design, though no overt act is done by them, they are still guilty under this law. The offencedefined by this act is a misdemeanor; and it is rule of law that whatever participation, in case of felony, would render a person guilty, either as a principal in the second degree, or as an accessory before the fact, does, in a case of misdemeanor, render him guilty as a principal; in misdemeanors all are principals. And, therefore, in pursuance of the same rule, not only those who are present, but those who, though absent when the offence was committed, did procure, counsel, command, or abet others to commit the offence, are indictable as principal.
"Such is the law, and it would seem that no just mind could doubt its propriety. If persons having influence over others use that influence to induce the commission of crime, while they themselves remain at a safe distance, that must be deemed a very imperfect system of law which allows them to escape with impunity. Such is not our law. It treats such advice as criminal, and subjects the giver of it to punishment according to the nature of the offence to which his pernicious counsel has led. If it be a case of felony, he is by the common law an accessory before the fact, and by the laws of the United States and of this State, is punishable to the same extent as the principal felon. If it be a case of misdemeanor, the adviser is himself a principal offender, and is to be indicted and punished as if he himself had done the criminal act. It may be important for you to know what, in point of law, amounts to such an advising or counselling another as will be sufficient to constitute this legal element in the offence. It is laid down by high authority, that though a mere tacit acquiescence, or words, which amount to a bare permission, will not be sufficient, yet such a procurement may be, either by direct means, as by hire, counsel, or command, or indirect, by evincing an express liking, approbation, or assent to another's criminal design. From the nature of the case, the law can prescribe only general rules on this subject. My instruction to you is, that language addressed to persons who immediately afterwards commit an offence, actually intended by the speaker to incite those addressed to commit it, and adapted thus to incite them, is such a counselling or advising to the crime as the law contemplates, and the person so inciting others is liable to be indicted as a principal.
"In the case of theCommonwealthv.Bowen(13 Mass. R. 359), which was an indictment for counselling another to commit suicide, tried in 1816, Chief Justice Parker instructing the jury, and speaking for the Supreme Court of Massachusetts, said:—
"'The government is not bound to prove that Jewett would not have hung himself, had Bowen's counsel never reached his ear. The very act of advising to the commission of a crime is of itself unlawful. The presumption of law is that advice has the influence and effect intended by the adviser, unless it is shown to have been otherwise; as that the counsel was received with scoff, or was manifestly rejected and ridiculed at the time it was given. It was said in the argument that Jewett's abandoned and depraved character furnishes ground to believe that he would have committed the act without such advice from Bowen. Without doubt he was a hardened and depraved wretch; but it is in man's nature to revolt at self-destruction. When a person is predetermined upon the commission of this crime, the seasonable admonitions of a discreet and respected friend would probably tend to overthrow his determination. On the other hand, the counsel of an unprincipled wretch, stating the heroism and courage the self-murderer displays, might induce, encourage, and fix the intention, and ultimately procure the perpetration of the dreadful deed; and if other men would be influenced by such advice, the presumption is that Jewett was so influenced. He might have been influenced by many powerful motives to destroy himself. Still the inducements might have been insufficient to procure the actual commission of the act, and one word of additional advice might have turned the scale.'
"When applied—as this ruling seems to have been here applied—to a case in which the advice was nearly connected, in point of time, with the criminal act, it is, inmy opinion, correct. If the advice was intended by the giver to stir or incite to a crime—if it was of such a nature as to be adapted to have this effect, and the persons incited immediately afterwards committed that crime—it is a just presumption that they were influenced by the advice or incitement to commit it. The circumstances, or direct proof, may or may not be sufficient to control this presumption; and whether they are so, can duly be determined in each case, upon all its evidence.
"One other rule of law on this subject is necessary to be borne in mind—the substantive offence to which the advice or incitement applied must have been committed; and it is for that alone the adviser or procurer is legally accountable. Thus if one should counsel another to rescue one prisoner, and he should rescue another, unless by mistake; or if the incitement was to rescue a prisoner, and he commit a larceny, the inciter is not responsible. But it need not appearthat the precise time, or place, or means advised, were used. Thus if one incite A. to murder B., but advise him to wait until B. shall be at a certain place at noon, and A. murders B. at a different place in the morning, the adviser is guilty. So if the incitement be to poison, and the murderer shoots, or stabs. So if the counsel be to beat another, and he is beaten to death, the adviser is a murderer; for having incited another to commit an unlawful act, he is responsible for all that ensues upon its execution.
"These illustrations are drawn from cases of felonies, because they are the most common in the books and the most striking in themselves; but the principles on which they depend are equally applicable to cases of misdemeanor. In all such cases the real question is, whether the accused did procure, counsel, command, or abet the substantive offence committed. If he did, it is of no importance that his advice or directions were departed from in respect to the time, or place, or precise mode or means of committing it.
"Gentlemen: The events which have recently occurred in this city, have rendered it my duty to call your attention to these rules of law, and to direct you to inquire whether in point of fact the offence of obstructing process of the United States has been committed; if it has, you will present for trial all such persons as have so participated therein as to be guilty of that offence. And you will allow me to say to you that if you or I were to begin to make discriminations between one law and another, and say this we will enforce and that we will not enforce, we should not only violate our oaths, but so far as in us lies, we should destroy the liberties of our country, which rest for their basis upon the great principle that our country is governed by laws, constitutionally enacted, and not by men.
"In one part of our country the extradition of fugitives from labor is odious; in another, if we may judge from some transactions, the law concerning the extradition of fugitives from justice has been deemed not binding; in another still, the tariff laws of the United States were considered oppressive, and not fit to be enforced.
"Who can fail to see that the government would cease to be a government if it were to yield obedience to those local opinions? While it stands, all its laws must be faithfully executed, or it becomes the mere tool of the strongest faction of the place and the hour. If forcible resistance to one law be permitted practically to repeal it, the power of the mob would inevitably become one of the constituted authorities of the State, to be used against any law or any man obnoxious to the interests and passions of the worst or most excited part of the community; and the peaceful and the weak would be at the mercy of the violent.
"It is the imperative duty of all of us concerned in the administration of the laws to see to it that they are firmly, impartially, and certainly applied to every offence, whether a particular law be by us individually approved or disapproved. And it becomes all to remember, that forcible and concerted resistance to any law is civil war, which can make no progress but through bloodshed, and can have no termination butthe destruction of the government of our country, or the ruin of those engaged in such resistance. It is not my province to comment on events which have recently happened. They are matters of fact which, so far as they are connected with the criminal laws of the United States, are for your consideration. I feel no doubt that, as good citizens and lovers of our country, and as conscientious men, you will well and truly observe and keep the oath you have taken, diligently to inquire and true presentment make of all crimes and offences against the laws of the United States given you in charge."[193]
Now gentlemen look at some particulars of this charge.
1. "If a multitude of persons shall assembleeven in a public highway, with the design tostand together, and thus prevent the officer from passing freely along that way, in the execution of his precept, and the officer should thus behindered and obstructed, this would, of itself, and without any active violence, be such an obstruction as is contemplated by this law." Of course, all persons thus assembled in the public highway were guilty of that offence, and liable to be punished with imprisonment for twelve months and a fine of three hundred dollars: "All who are present, and obstruct, resist, or oppose,are of course guilty." Their "design" is to be inferred from "the fact" that the officer was obstructed.
That is not all, this offence in technical language the Judge calls a "misdemeanor," and in "misdemeanors," he says, "all are principals." So, accordingly, not only are all guilty whoactually obstructbut likewise all who are "leagued in the common design, andso situated as to be ablein case of needto afford assistance to those actually engaged, though they do not actually obstruct, resist, or oppose." These are obstructors by construction No. 1; they must have been several thousands in number.
But even that is not all; the judicial logic of deduction goes further still, and he adds, "Not only those who are present, butthose whothoughabsentwhen the offence was committed,did procure, counsel, command, or abetothers to commit the offence are indictable as principals." These are obstructors by construction No. 2.
2. Next he determines what it is which "amounts tosuch advising or counsellinganother as will be sufficient to constitute this legal element in the offence." First he constructs the physical act which is the misdemeanor, namely, standing in the high road and thereby hindering a kidnapper from "passing freely along that way; or being so situated as to be able to afford assistance to others thus standing; or advising another thus to stand, or be situated:" next he constructs theadvice, the metaphysical act, which is equally a "misdemeanor." This is the square root of construction No. 2. Look at this absurd quantity.
"Such a procurement may be, either by direct means, as by hire, counsel, or command, or indirect,by evincing an express liking, approbation, or assent." Thus the mere casual expression, "I wish Burns would escape, or I wish somebody would let him out," is a "Misdemeanor;" it is "evincing an express liking." Nodding to any other man's similar wish is a misdemeanor. It is "approbation." Even smiling at the nod is a crime—it is "assent." Such is the threefold shadow of this constructive shade. But even that is not all. A man is held responsible for what he evinced noexpressor impliedlikingfor: "it need not appear that the precise time, or place, or means advised, were used." Accordingly, he that "evinces an express liking," "is responsible for all that ensues upon its execution." He evinces his assent to the End and is legally responsible for any Means which any hearer thereof shall, at any time, or in any place, make use of to attain that end!
Gentlemen of the Jury, this charge is aquo warrantoagainst all Freedom of Speech. But suppose it were good law, and suppose the Grand-Jury obedient to it, see how it would apply.
All who evinced an express liking, approbation, or assent to the rescue of Mr. Burns are guilty of a misdemeanor; if they "evinced an express liking" that he should be rescued by a miracle wrought by Almighty God,—and some did express "approbation" of that "means,"—they are indictable, guilty of a "misdemeanor;" "it need not appear that the precise time, or place, or means advised, were used!" If any colored woman during the wicked week—which was ten days long—prayed that God would deliver Anthony, as it is said his angel delivered Peter, or said "Amen" to such a prayer, she was "guilty of a misdemeanor;" to be indicted as a "principal."
So every man in Boston who, on that bad Friday, stood in the streets of Boston between Court Square and T Wharf, was "guilty of a misdemeanor," liable to a fine of three hundred dollars, and to jailing for twelve months. All who at Faneuil Hall stirred up the minds of the people in opposition to the fugitive slave bill; all who shouted, who clapped their hands at the words or the countenance of their favorites, or who expressed "approbation" by a whisper of "assent," are "guilty of a misdemeanor." The very women who stood for four days at the street corners, and hissed the infamous Slave-hunters and their coadjutors; they, too, ought to be punished by fine of three hundred dollars and imprisonment for a year! Well, there were fifteen thousand persons "assembled" "in the highway" of the city of Boston that day opposed to kidnapping; half the newspapers in the country towns of Massachusetts "evinced an express liking" for freedom, and opposed the kidnapping; they are all "guilty of a misdemeanor;" they are "Principals." Nay, the ministers allover the State, who preached that kidnapping was a sin; those who read brave words out of the Old Testament or the New; those who prayed that the victim might escape; they, likewise, were "guilty of a misdemeanor," liable to be fined three hundred dollars and jailed for twelve months.[194]
But where did Judge Curtis find his right to levy Ship-money, Tonnage, and Poundage on the tongues of men; where did he find his "law?" Surely not in the statute. When the bill was pending in 1790, suppose his construction of the statute had been declared to Congress—who would have voted for a law so monstrous? The statute lay in the Law-book for nearly seventy years, and nobody ever applied it to a case like this.
Gentlemen, I have shown you already how British judges in the time of the Jameses and Charleses perverted the law to the basest of purposes. I mentioned, amongst others, the work of Twysden and Kelyng and Jones. This is a case like those. Just now I spoke of the action of Chief Justice Parker who said it was not for the jury to judge whether a lawwere harsh or not; I showed how he charged the jury in the case of Bowen, and how the jury returned a verdict of "not guilty," thus setting his inhuman charge at nought.[195]But Judge Curtis, for his law, relies upon Judge Parker's charge. It is not a Statute made by the legislature that Judge Curtis relies on for his law; it is not a Custom of the Common law; it is not an Opinion of the Court solemnly pronounced after mature deliberation; it is only the charge of a single judge to a jury in a special case, and one which the jury disregarded even then!
But where did Judge Parker, an estimable man, find his law? Mr. Perez Morton, the Attorney-General, found it in Kelyng's Reports. In the case of Bowen only one authority is referred to for that odious principle on which the judge sought to hang him; that authority is taken from "9 Charles I.;" from the year 1634—the worst age of the Stuart tyranny! But even that authority was not a Statute law, not a Custom of the People, not the Opinion of a Court solemnly pronounced. It was the charge of a single judge—a charge to a jury, made by an inferior judge, of an inferior court, in a barbarous age, under a despotic king! Hearken to this,—from the volume of Kelyng's Reports.[196]"Memorandum, That my Brother Twysden shewed me a Report which he had of the Charge given by Justice Jones to the grand-jury at the King's Bench Barr, in Michaelmas Term, 9 Carl. I." Gentlemen of the Jury, that charge no more settled the law even in 1634, than Judge Sprague's charge telling thegrand-jury to "obey both"the law of God and the law of man which is exactly opposite thereto, settled the law of the United States and the morality of the People. But yet that is all the law the government had to hang Bowen with. The jury made nothing of it.[197]
But Kelyng's Reports are of no value as authority. Here is what Lord Campbell, now Chief Justice of the King's Bench, says of them and their author. I read it to you long ago. "I ought to mention that among his other vanities he had the ambition to be an author; and he compiled a folio volume of decisions in criminal laws,which are of no value whatever except to make us laugh at some of the silly egotisms with which they abound."[198]Twysden, who showed him the Report of the charge, is of little value, and of no authority. I mentioned his character before.
Justice Jones, who made the charge, would hardly be an authority in the English courts in a nice question of construction. He allowed the king to levy ship-money, as I have shown before,[199]and dared not perform the duties of his office and so protect the Liberty of the Subject when the king smote thereat. He was brought before the House of Commons to answer for his conduct, in 1628. "His memory," says Echard, "suffers upon the account of his open judgment for the ship-money, the unhappy consequence of which he did not live to see."[200]
Judge Kelyng, the great authority in this case, was notorious for violating alike Justice and the law. Out of a riot committed by some apprentices he constructed the crime of High Treason, and sentenced thirteen men to death. He fined and imprisoned jurors because they refused to return the wicked, illegal verdict he demanded. With language too obscene to utter in this century, he mocked at the Great Charter of English Liberty. But at last the scandal was too great even for the reign of Charles II., and in 1667 the "Grand Committee of Justice" in the House of Commons, after examining witnesses and hearing him on his own behalf, reported:—
1. "That the proceedings of the Lord Chief Justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that he hath used an arbitrary and illegal power which is of dangerous consequence to the lives and liberties of the people of England."2. "That in place of Judicature, the Lord Chief Justice hath undervalued, vilified, and condemnedMagna Charta, the great preserver of our lives, freedom, and property."3. "That the Lord Chief Justice be brought to trial, in order to condign punishment, in such manner as the House shall judge most fit and requisite."[201]
1. "That the proceedings of the Lord Chief Justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that he hath used an arbitrary and illegal power which is of dangerous consequence to the lives and liberties of the people of England."
2. "That in place of Judicature, the Lord Chief Justice hath undervalued, vilified, and condemnedMagna Charta, the great preserver of our lives, freedom, and property."
3. "That the Lord Chief Justice be brought to trial, in order to condign punishment, in such manner as the House shall judge most fit and requisite."[201]
Some of the lawyers whom he had browbeaten, generously interceded for him. He made an abject submission "with great humility and reverence," and the House desisted from prosecution. "He was abundantly tame for the rest of his days," says Lord Campbell, "fell into utter contempt," "anddied to the great relief of all who had any regard for the due administration of justice."
Gentlemen, I am no lawyer, and may easily be mistaken in this matter, but as I studied Judge Curtis's charge and cast about for the sources of its doctrines and phraseology, I thought I traced them all back to Kelyng's opinions in that famous case, where he made treason out of a common riot among apprentices; and to Judge Chase's "opinions" and "rulings" in the trial of Mr. Fries,—opinions and rulings which shocked the public at the time, and brought legislative judgment on his head. Let any one compare the documents, I think he will find the whole of Curtis in those two impeached Judges, in Kelyng and in Chase.[202]
Here then is the law,—derived from the memorandum of the charge to a grand-jury made in 1634, by a judge so corrupt that he did not hesitate to violate Magna Charta itself; not published till more than seventy years after the charge was given; cited as law by a single authority, and that authority impeached for unrighteously and corruptly violating the laws he was set and sworn to defend, impeached even in that age—of Charles II.;—that is the law! Once before an attempt was made to apply it in Massachusetts, and inflict capital punishment on a man for advising a condemned murderer to anticipate the hangman and die by his own hand in private—and the jury refused. But to such shifts is this Honorable Court reduced! Gentlemen of the Jury, the fugitive slave bill cannot be executed in Massachusetts, not in America, without reviving the worst despotism of the worst of the Stuarts; not without bringing Twysden and Jones and Kelyng on the Bench; no, not without Saunders and Finch, and Jeffreys and Scroggs!
Gentlemen, such was Judge Curtis's charge. I have been told it was what might have been expected from the general character and previous conduct of the man; but I confess it did surprise me: it was foolish as it was wicked and tyrannical. But it all came to nought.
For, alas! there was a grand-jury, and the Salmonean thunder of the fugitive slave bill judge fell harmless—quenched, conquered, disgraced, and brutal,—to the ground. Poor fugitive slave bill Court! It can only gnash its teeth against freedom of speech in Faneuil Hall; only bark and yelp against the unalienable rights of man, andhowl against the Higher Law of God! it cannot bite! Poor, imbecile, malignant Court! What a pity that the fugitive slave bill judge was not himself the grand-jury, to order the indictment! what a shame that the attorney was not a petty jury to convict! Then New England, like Old, might have had her "bloody assizes," and Boston streets might have streamed with the heart's gore of noble men and women; and human heads might have decked the pinnacles all round the town; and Judge Curtis and Attorney Hallett might have had their place with Judge Jeffreys and John Boilman of old. What a pity that we have a grand-jury and a traverse jury to stand between the malignant arm of the Slave-hunter and the heart of you and me![203]
The grand-jury found no bill and were discharged. In a Fourth of July Sermon "Of the Dangers which Threaten the Rights of Man in America," I said:—
"Perhaps the Court will try again, and find a more pliant Grand-Jury, easier to intimidate. Let me suggest to the Court that the next time it should pack its Jury from the Marshal's 'Guard.' Then there will be Unity of Idea; of action too,—the Court a figure of equilibrium."
"Perhaps the Court will try again, and find a more pliant Grand-Jury, easier to intimidate. Let me suggest to the Court that the next time it should pack its Jury from the Marshal's 'Guard.' Then there will be Unity of Idea; of action too,—the Court a figure of equilibrium."
The audacious Grand-Jury was discharged. A new one was summoned; this time it was constructed out of the right material. Before that, Gentlemen, we had had the Judge or his kinsmen writing for the fugitive slave bill in the newspapers; getting up public meetings in behalf of man-stealing in Boston; writing letters in support of the same; procuring opinions in favor of the constitutionality of the fugitive slave bill; nay, kidnapping men and sending them into eternal bondage, and in the newspapers defending the act; but we had none of them in the Jury box. On the new Grand-Jury appeared Mr. William W. Greenough, the brother-in-law of Hon. Judge Curtis—each married a daughter of Mr. Charles P. Curtis. Mr. Greenough "was very active in his endeavors to procure an indictment" against me; and a bill was found.
How came the Brother-in-law of the Judge on the Grand-Jury summoned to punish men who spoke against kidnapping? Gentlemen of the Jury, I do not know. Of course it was done honestly; nobody suspects the Mayor of Boston of double-dealing, of intrigue, or of any indirection! Of course there was no improper influence used by the Marshal, or Mr. Curtis, or Mr. Hallett, who had all so much at stake; of course Mr. Greenough "did not wish to be on the Jury;" of course Judge Curtis "was very sorry he was there," and of course "all the family was sorry!" Of course "he went andasked Judge Sprague to excuse him, and the Judge wouldn't let him off!" Well, Gentlemen, I suppose it was a "miracle;" such a miracle as delivered the old or the new Shadrach; a "singular coincidence;" a "very remarkable fact." You will agree with me, Gentlemen, that it was avery remarkablefact. In all the judicial tyranny I have related, we have not found a case before in which the judge had his brother on the Grand-Jury. Even Kelyng affords no precedent for that.
Last summer I met Mr. Greenough in a Bookstore and saluted him as usual; he made no return to my salutation, but doubled up his face and went out of the shop! That was the impartial Grand-Juror, who took the oath to "present no man for envy, hatred, or malice."
"After the impanelling of the new Grand-Jury,"—I am reading from a newspaper,[204]"Judge Curtis charged them in reference to their duties at considerable length. In regard to the Burns case he read the law of 1790 respecting opposition to the United States Marshals and their deputies while in discharge of their duty, enforcing the laws of the United States, and referred for further information as to the law upon the point to his charge delivered at a previous term of the Court, and now in the possessionof the District Attorney." Thus he delegated the duty of expounding the law to a man who is not a judicial officer of the United States.
Gentlemen of the Jury, look at the facts. I am indicted by a Grand-Jury summoned for that purpose after one Grand-Jury—which had been drawn before the kidnapping of Mr. Burns—had refused to find a bill; a member of the family which has been so distinguished for kidnapping ever since 1832, the Brother-in-law of the Judge, is made one of that Grand-Jury; he is so hostile and malignant as to refuse my friendly salutation when offered as usual; and on the jury is "most active of all in his efforts to procure an indictment," so that "but for his efforts," as one of the Grand-Jury informed me, "no bill would have been found that time;" and "it was obvious that an outside influence affected him." Out of court Mr. Hallett, it is said, jocosely offers to bet ten dollars that he "will get Mr. Parker indicted." I am to be tried before two judges deeply committed to the Slave Power, now fiercely invading our once free soil; they owe their appointment to their hostility against Freedom. Twenty years ago, in the Old Cradle of Liberty, Mr. Sprague could find for Washington no epithet so endearing as "That Slaveholder;" he defended Slavery with all his legal learning, all his personal might. Yes, when other weapons failed him he extemporized a new gospel, and into the mouth of Jesus of Nazareth,—who said,"Thou shalt love thy Neighbor as thyself," and pointed out the man who had "fallen among thieves" as neighbor to the Samaritan—he put this most unchristian precept, "Slaves, obey your masters!" Nay, only four years ago, in this very Court, he charged the jury that if they thought there was a contradiction between the Law of God and the Statutes of men they must "obey both."
Gentlemen, the other judge, Mr. Curtis, began his career by asking the Supreme Court of Massachusetts to restore Slavery to Lexington and Bunker Hill; he demanded that our own Supreme Court should grant all that wickedness which Toombs and Hangman Foote, and Atchison and Stringfellow, and Grier and Kane have since sought to perpetuate! He denied the existence of any Law of God to control the Court, there is nothing but the Statutes of men; and declared "Slavery is not immoral;" Massachusetts may interfere actively to establish it abroad as well as at home. In Faneuil Hall, in a meeting which he and his kinsmen had gathered and controlled, a meeting to determine upon kidnapping the citizens of Boston, he charged me with perjury, asked a question, and did not dare listen to my reply! Gentlemen, it is a very proper Court to try me. A fugitive slave bill Court—with a fugitive slave bill Attorney, a fugitive slave bill Grand-Jury, two fugitive slave bill Judges—which scoffs at the natural law of the Infinite God, is a very suitable tribunal to try a Minister of the Christian religion for defending his own parishioners from being kidnapped, defending them with a word in Faneuil Hall!
"No tyranny so secure,—none so intolerable,—none so dangerous,—none so remediless, as that of Executive Courts." "This is a truth all nations bear witness to—all history confirms." These were the words of Josiah Quincy, Jr., in 1772.—Gentlemen, in 1855 you see how true they are! "So sensible are all tyrants of the importance of such courts—that to advance and establish their system of oppression,they never rest until they have completely corrupted or bought the judges of the land. I could easily show that the most deep laid and daring attacks upon the rights of a people might, in some measure, be defeated, or evaded by upright judicatories; bad laws with good judges make little progress."[205]
But Gentlemen,—when the fugitive slave bill is "law," when the judges are selected for their love of Slavery and their hatred of freedom—men who invent Scripture to justify bondage, or who as Lawyers beseech the courts to establish Slavery in Massachusetts; who declare it is not immoral, that it may be the duty of Massachusetts to interfere actively and establish slavery abroad, nay, that there is no morality but only legality, the statute the only standard of right andwrong—what are you to expect? What you see in Philadelphia, New York; aye, in Boston at this hour. I will add with Mr. Quincy, "Is it possible this should not rouse us and drive us not to desperation but to our duty! The blind may see; the callous must feel; the spirited will act."[206]
It would be just as easy for the Judge to make out divers other crimes from my words, as to construct a misdemeanor therefrom. To charge me with "treason," he has only to vary a few words and phrases; to cite Chase, and not Judge Parker, and to refer to other passages of Kelyng's Reports. James II.'s judges declared it was treason in the seven Bishops to offer their petition to the King. Mr. Webster said, it is only the "clemency of the Government which indicted the Syracuse rescuers for misdemeanors and not for a capital crime!" How easy for a fugitive slave bill judge to hang men for a word against his brother kidnapper—if there were no jury; if, like the New York sheriff in 1735, he could order "his own negro" to do it! Here is a remarkable case of constructive crime, worthy of this Honorable Court. It is the famous case ofDuxv.Conrade et Boracio. Honorable Judge Dogberry thus delivered his charge to the Grand Inquest, "Masters, I charge you accuse these men,"—one policeman testified that Conrade said "that Don John, the prince's Brother, was avillain." Judge Dogberry ruled, "This is flat perjury to call a prince's Brother,villain." The next member of the Marshal's guard deposed that Boracio had said, "That he had received a thousand ducats of Don John for accusing the Lady Hero wrongfully." Chief Justice Dogberry decided, "Flat Burglary as ever was committed." Sentence accordingly.[207]
Gentlemen, the indictment is so roomy and vague, that before I came into court, I did not know what special acts of mine would be brought up against me—for to follow out the Judge's charge, all my life is a series of constructive misdemeanors. Nay, I think my mother—the violet has bloomed over that venerable and well-beloved head for more than thirty summers now—I think my mother might be indicted for constructive treason, only for bearing me, her youngest son. Certainly, it was "obstructing an officer," and in "misdemeanors all are principals." I have committed a great many misdemeanors; all my teachings evince an express liking for Piety, for Justice, for Liberty; all my life is obstructing, opposing, and resisting the fugitive slave bill Court, its Commissioners, its Judges, its Marshals and its Marshal's guard. Gentlemen of the jury, you are to judge me. Look at some of my actions and some of my words.
In 1850, on the 25th of March, a fortnight after Mr. Webster made his speech against Humanity, there was a meeting of the citizens of Boston, at Faneuil Hall; Gentlemen, I helped procure the meeting. First, I tried to induce the leading Whigs to assemble the people. No, that could not be done; "the Bill would not pass, there was no danger!" Then I tried the leading Free Soilers; "No, it was not quite time, and we are not strong enough." At last the old abolitionists came together. Mr. Phillips made a magnificent speech. Here are some things which I also said.
"There were three fugitives at my house the other night. Ellen Craft was one of them. You all know Ellen Craft is a slave; she, with her husband, fled from Georgia to Philadelphia, and is here before us now. She is not so dark as Mr. Webster himself, if any of you think freedom is to be dealt out in proportion to the whiteness of the skin. If Mason's bill passes, I might have some miserable postmaster from Texas or the District of Columbia, some purchased agent of Messrs. Bruin & Hill, the great slave-dealers of the Capital, have him here in Boston, take Ellen Craft before the caitiff, and on his decision hurry her off to bondage as cheerless, as hopeless, and as irremediable as the grave!"Let me interest you in a scene which might happen. Suppose a poor fugitive, wrongfully held as a slave—let it be Ellen Craft—has escaped from Savannah in some northern ship. No one knows of her presence on board; she has lain with the cargo in the hold of the vessel. Harder things have happened. Men have journeyed hundreds of miles bent double in a box half the size of a coffin, journeying towards freedom. Suppose the ship comes up to Long Wharf, at the foot of State Street. Bulk is broken to remove the cargo; the woman escapes, emaciated with hunger, feeble from long confinement in a ship's hold, sick with the tossing of the heedless sea, and still further etiolated and blanched with the mingling emotions of hope and fear. She escapes to land. But her pursuer, more remorseless than the sea, has been here beforehand; laid his case before the official he has brought with him, or purchased here, and claims his slave. She runs for her life, fear adding wings. Imagine the scene—the flight, the hot pursuit through State Street, Merchants' Row—your magistrates in hot pursuit. To make the irony of nature still more complete, let us suppose this shall take place on some of the memorable days in the history of America—on the 19th of April, when our fathers first laid down their lives 'in the sacred cause of God and their country;' on the 17th of June, the 22d of December, or on any of the sacramental days in the long sad history of our struggle for our own freedom! Suppose the weary fugitive takes refuge in Faneuil Hall, and here, in the old Cradle of Liberty, in the midst of its associations, under the eye of Samuel Adams, the bloodhounds seize their prey! Imagine Mr. Webster and Mr. Winthrop looking on, cheering the slave-hunter, intercepting the fugitive fleeing for her life. Would not that be a pretty spectacle?"Propose to support that bill to the fullest extent, with all its provisions! Ridiculous talk! Does Mr. Webster suppose that such a law could be executed in Boston? that the people of Massachusetts will ever return a single fugitive slave, under such an act as that? Then he knows his constituents very little, and proves that he needs 'Instruction.'"Perpetuate Slavery, we cannot do it. Nothing will save it. It is girt about by a ring of fire which daily grows narrower, and sends terrible sparkles into the very centre of the shameful thing. 'Joint resolutions' cannot save it; annexations cannot save it—not if we reannex all the West Indies; delinquent representatives cannotsave it; uninstructed senators, refusing instructions, cannot save it, no, not with all their logic, all their eloquence, which smites as an earthquake smites the sea. No, slavery cannot be saved; by no compromise, no non-intervention, no Mason's Bill in the Senate. It cannot be saved in this age of the world until you nullify every ordinance of nature, until you repeal the will of God, and dissolve the union He has made between righteousness and the welfare of a people. Then, when you displace God from the throne of the world, and instead of His eternal justice, reënact the will of the Devil, then you may keep Slavery; keep it for ever, keep it in peace. Not till then."The question is, not if slavery is to cease, and soon to cease, but shall it end as it ended in Massachusetts, in New Hampshire, in Pennsylvania, in New York; or shall it end as in St. Domingo? Follow the counsel of Mr. Webster—it will end in fire and blood. God forgive us for our cowardice, if we let it come to this, that three millions or thirty millions of degraded human beings, degraded by us, must wade through slaughter to their unalienable rights."[208]
"There were three fugitives at my house the other night. Ellen Craft was one of them. You all know Ellen Craft is a slave; she, with her husband, fled from Georgia to Philadelphia, and is here before us now. She is not so dark as Mr. Webster himself, if any of you think freedom is to be dealt out in proportion to the whiteness of the skin. If Mason's bill passes, I might have some miserable postmaster from Texas or the District of Columbia, some purchased agent of Messrs. Bruin & Hill, the great slave-dealers of the Capital, have him here in Boston, take Ellen Craft before the caitiff, and on his decision hurry her off to bondage as cheerless, as hopeless, and as irremediable as the grave!
"Let me interest you in a scene which might happen. Suppose a poor fugitive, wrongfully held as a slave—let it be Ellen Craft—has escaped from Savannah in some northern ship. No one knows of her presence on board; she has lain with the cargo in the hold of the vessel. Harder things have happened. Men have journeyed hundreds of miles bent double in a box half the size of a coffin, journeying towards freedom. Suppose the ship comes up to Long Wharf, at the foot of State Street. Bulk is broken to remove the cargo; the woman escapes, emaciated with hunger, feeble from long confinement in a ship's hold, sick with the tossing of the heedless sea, and still further etiolated and blanched with the mingling emotions of hope and fear. She escapes to land. But her pursuer, more remorseless than the sea, has been here beforehand; laid his case before the official he has brought with him, or purchased here, and claims his slave. She runs for her life, fear adding wings. Imagine the scene—the flight, the hot pursuit through State Street, Merchants' Row—your magistrates in hot pursuit. To make the irony of nature still more complete, let us suppose this shall take place on some of the memorable days in the history of America—on the 19th of April, when our fathers first laid down their lives 'in the sacred cause of God and their country;' on the 17th of June, the 22d of December, or on any of the sacramental days in the long sad history of our struggle for our own freedom! Suppose the weary fugitive takes refuge in Faneuil Hall, and here, in the old Cradle of Liberty, in the midst of its associations, under the eye of Samuel Adams, the bloodhounds seize their prey! Imagine Mr. Webster and Mr. Winthrop looking on, cheering the slave-hunter, intercepting the fugitive fleeing for her life. Would not that be a pretty spectacle?
"Propose to support that bill to the fullest extent, with all its provisions! Ridiculous talk! Does Mr. Webster suppose that such a law could be executed in Boston? that the people of Massachusetts will ever return a single fugitive slave, under such an act as that? Then he knows his constituents very little, and proves that he needs 'Instruction.'
"Perpetuate Slavery, we cannot do it. Nothing will save it. It is girt about by a ring of fire which daily grows narrower, and sends terrible sparkles into the very centre of the shameful thing. 'Joint resolutions' cannot save it; annexations cannot save it—not if we reannex all the West Indies; delinquent representatives cannotsave it; uninstructed senators, refusing instructions, cannot save it, no, not with all their logic, all their eloquence, which smites as an earthquake smites the sea. No, slavery cannot be saved; by no compromise, no non-intervention, no Mason's Bill in the Senate. It cannot be saved in this age of the world until you nullify every ordinance of nature, until you repeal the will of God, and dissolve the union He has made between righteousness and the welfare of a people. Then, when you displace God from the throne of the world, and instead of His eternal justice, reënact the will of the Devil, then you may keep Slavery; keep it for ever, keep it in peace. Not till then.
"The question is, not if slavery is to cease, and soon to cease, but shall it end as it ended in Massachusetts, in New Hampshire, in Pennsylvania, in New York; or shall it end as in St. Domingo? Follow the counsel of Mr. Webster—it will end in fire and blood. God forgive us for our cowardice, if we let it come to this, that three millions or thirty millions of degraded human beings, degraded by us, must wade through slaughter to their unalienable rights."[208]
Gentlemen, that speech was a "seditious libel" by construction!
On the 29th of May, I spoke at the New England Anti-Slavery Convention, and said:—
"Let us not be deceived about the real question at issue. It is not merely whether we shall return fugitive slaves without trial by jury. We will not return them with trial by jury! neither 'with alacrity,' nor with the 'solemnity of judicial proceedings!' It is not merely whether slavery shall be extended or not. By and by there will be a political party with a wider basis than the free soil party, who will declare that the nation itself must put an end to slavery in the nation; and if the Constitution of the United States will not allow it, there is another Constitution that will. Then the title, Defender and expounder of the Constitution of the United States, will give way to this,—'Defender and expounder of the Constitution of the Universe,' and we shall reaffirm the ordinance of nature, and reënact the will of God. You may not live to see it, Mr. President, nor I live to see it; but it is written on the iron leaf that it must come; come, too, before long. Then the speech of Mr. Webster, and the defence thereof by Mr. Stuart, the letter of the retainers and the letters of the retained, will be a curiosity; the conduct of the whigs and democrats an amazement, and the peculiar institution a proverb amongst all the nations of the earth. In the turmoil of party politics, and of personal controversy, let us not forget continually to move the previous question, whether Freedom or Slavery is to prevail in America. There is no attribute of God which is not on our side; because, in this matter, we are on the side of God."[209]
"Let us not be deceived about the real question at issue. It is not merely whether we shall return fugitive slaves without trial by jury. We will not return them with trial by jury! neither 'with alacrity,' nor with the 'solemnity of judicial proceedings!' It is not merely whether slavery shall be extended or not. By and by there will be a political party with a wider basis than the free soil party, who will declare that the nation itself must put an end to slavery in the nation; and if the Constitution of the United States will not allow it, there is another Constitution that will. Then the title, Defender and expounder of the Constitution of the United States, will give way to this,—'Defender and expounder of the Constitution of the Universe,' and we shall reaffirm the ordinance of nature, and reënact the will of God. You may not live to see it, Mr. President, nor I live to see it; but it is written on the iron leaf that it must come; come, too, before long. Then the speech of Mr. Webster, and the defence thereof by Mr. Stuart, the letter of the retainers and the letters of the retained, will be a curiosity; the conduct of the whigs and democrats an amazement, and the peculiar institution a proverb amongst all the nations of the earth. In the turmoil of party politics, and of personal controversy, let us not forget continually to move the previous question, whether Freedom or Slavery is to prevail in America. There is no attribute of God which is not on our side; because, in this matter, we are on the side of God."[209]
After the death of General Taylor on the 14th of July, I lifted up my voice in a funeral sermon thus:—
"If he could speak to us from his present position, methinks he would say: Countrymen and friends! You see how little it availed you to agitate the land and put a little man in a great place. It is not the hurrah of parties that will 'save the Union,' it is not 'great men.' It is only Justice. Remember that Atheism is not the first principle of a Republic; remember there is a law of God, the higher law of the universe, the Everlasting Right: I thought so once, and now I know it. Remember that you areaccountable to God for all things; that you owe justice to all men, the black not less than the white; that God will demand it of you, proud, wicked nation, careful only of your gold, forgetful of God's high law! Before long each of you shall also come up before the Eternal. Then and there it will not avail you to have compromised truth, justice, love, but to have kept them. Righteousness only is the salvation of a State; that only of a man."[210]
"If he could speak to us from his present position, methinks he would say: Countrymen and friends! You see how little it availed you to agitate the land and put a little man in a great place. It is not the hurrah of parties that will 'save the Union,' it is not 'great men.' It is only Justice. Remember that Atheism is not the first principle of a Republic; remember there is a law of God, the higher law of the universe, the Everlasting Right: I thought so once, and now I know it. Remember that you areaccountable to God for all things; that you owe justice to all men, the black not less than the white; that God will demand it of you, proud, wicked nation, careful only of your gold, forgetful of God's high law! Before long each of you shall also come up before the Eternal. Then and there it will not avail you to have compromised truth, justice, love, but to have kept them. Righteousness only is the salvation of a State; that only of a man."[210]
All that was before the bill passed, but how easy it would be for Judge Jeffreys or Judge Curtis, Judge Sprague or Judge Scroggs, to construct it into a "misdemeanor," "resisting an officer!"
After the fugitive slave bill passed, on the 22d of September, 1850, not forty-eight hours after the Judge's friends had fired their jubilant cannon at the prospect of kidnapping the men who wait upon their tables, I preached a "Sermon of the Function and Place of Conscience in relation to the Laws of Man, a sermon for the times." I said this:—