The Idea of Freedom first got a national expression on the Fourth of July, 1776. Here it is. I put it in a philosophic form. There are five points to it.First, All men are endowed by their Creator with certain natural rights, amongst which is the right to life, liberty, and the pursuit of happiness.Second, These rights are unalienable; they can be alienated only by the possessor thereof; the father cannot alienate them for the son, nor the son for the father; nor the husband for the wife, nor the wife for the husband; nor the strong for the weak, nor the weak for the strong; nor the few for the many, nor the many for the few; and so on.Third, In respect to these, all men are equal; the rich man has not more, and the poor less; the strong man has not more, and the weak man less:—all are exactly equal in these rights, however unequal in their powers.Fourth, It is the function of government to secure these natural, unalienable, and equal rights to every man.Fifth, Government derives all its divine right from its conformity with these ideas, all its human sanction from the consent of the governed.That is the Idea of Freedom. I used to call it "the American Idea;" that was when I was younger than I am to-day. It is derived from human nature; it rests on the immutable Laws of God; it is part of the natural religion of mankind. It demands a government after natural Justice, which is the point common between the conscience of God and the conscience of mankind; it is the point common also between the interests of one man and of all men.Now this government, just in its substance, in its form must be democratic: that is to say, the government of all, by all, and for all. You see what consequences must follow from such an idea, and the attempt to reënact the Law of God into political institutions. There will follow the freedom of the people, respect for every natural right of all men, the rights of their body and of their spirit—the rights of mind and conscience, heart and soul. There must be some restraint—as of children by their parents, as of bad men by good men; but it will be restraint for the joint good of all parties concerned; not restraint for the exclusive benefit of the restrainer. The ultimate consequence of this will be the material and spiritual welfare of all—riches, comfort, noble manhood, all desirable things.That is the Idea of Freedom. It appears in the Declaration of Independence; itreappears 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]
The Idea of Freedom first got a national expression on the Fourth of July, 1776. Here it is. I put it in a philosophic form. There are five points to it.
First, All men are endowed by their Creator with certain natural rights, amongst which is the right to life, liberty, and the pursuit of happiness.
Second, These rights are unalienable; they can be alienated only by the possessor thereof; the father cannot alienate them for the son, nor the son for the father; nor the husband for the wife, nor the wife for the husband; nor the strong for the weak, nor the weak for the strong; nor the few for the many, nor the many for the few; and so on.
Third, In respect to these, all men are equal; the rich man has not more, and the poor less; the strong man has not more, and the weak man less:—all are exactly equal in these rights, however unequal in their powers.
Fourth, It is the function of government to secure these natural, unalienable, and equal rights to every man.
Fifth, Government derives all its divine right from its conformity with these ideas, all its human sanction from the consent of the governed.
That is the Idea of Freedom. I used to call it "the American Idea;" that was when I was younger than I am to-day. It is derived from human nature; it rests on the immutable Laws of God; it is part of the natural religion of mankind. It demands a government after natural Justice, which is the point common between the conscience of God and the conscience of mankind; it is the point common also between the interests of one man and of all men.
Now this government, just in its substance, in its form must be democratic: that is to say, the government of all, by all, and for all. You see what consequences must follow from such an idea, and the attempt to reënact the Law of God into political institutions. There will follow the freedom of the people, respect for every natural right of all men, the rights of their body and of their spirit—the rights of mind and conscience, heart and soul. There must be some restraint—as of children by their parents, as of bad men by good men; but it will be restraint for the joint good of all parties concerned; not restraint for the exclusive benefit of the restrainer. The ultimate consequence of this will be the material and spiritual welfare of all—riches, comfort, noble manhood, all desirable things.
That is the Idea of Freedom. It appears in the Declaration of Independence; itreappears 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]
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, hostileto 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 NewYork 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 AfricanSlave-trade in 1808. Her last triumph was forty-seven years ago,—nay, even that victory was really achieved twenty years before at the adoption of the constitution. In this warfare we have not gained a battle for freedom since 1788!
For a time it seemed doubtful which would triumph, though Slavery gained Kentucky and Tennessee, and Louisiana was purchased as slave soil in 1803. But in 1820 slavery became the obvious and acknowledged master in the Federal Territory, marched victorious over the Mississippi, planted itself in Missouri, and has subsequently taken possession of Mississippi, Alabama and Arkansas, all slave States; has purchased Florida; "reannexed" Texas; conquered Utah, New Mexico and California, all slave soil; and from Freedom and the North has just now reconquered Kansas and Nebraska. Ever since the Missouri Compromise in 1820 Slavery has been really the master, obviously so since the annexation of Texas in 1845. The slave-power appoints all the great national officers, executive, diplomatic, judicial, naval and military,—it controls the legislative departments. Look at this Honorable Court, Gentlemen, and recognize its power!
The idea of Slavery must be carried out to its logical consequence, so our masters now meditate two series of Measures, both necessary to the development of Slavery as a Principle.
(I.) African Slavery is to be declared a Federal Institution, national and sectional, and so extended into all the Territories of the United States. New soil is to be bought or plundered from Hayti, Spain, Mexico, South America "and the rest of mankind," that slavery may be planted there; that is the purpose of all the Official Fillibustering of the Government, and the Extra-official Fillibustering which it starts, or allows; Quitman "Enterprises," Kinney "Expeditions," Black Warrior and El Dorado "difficulties," all point to this; the "Ostend Conference" is a step in that direction; Slavery is to be restored to the so called "Free States," reëstablished in all the North. That is the design of the fugitive slave bill in 1850, and the kidnapping of northern men consequent thereon for the last five years; of President Pierce's inaugural declarations in behalf of slavery in 1853; of Mr. Toombs's threat in 1854, that "soon the master with his slaves will sit down at the foot of Bunker Hill Monument;" of Mr. Toucey's Bill in 1855, providing that when a kidnapper violates the local laws of any State, he shall be tried by the fugitive slave bill court. Then the African Slave-trade is to be restored by federal enactments, or judicial decisions of the "Supreme Court of the United States." All these steps belong to Measure number One. The Supreme Court is ready to execute the commands of its lord. Soon you will see more "decisions" adverse to humanity.
(II.) The next movement is progressively to weaken and ultimately to destroy the Democratic Institutions of the North,—yes, also of the South. This design is indicated and sustained by some of the measures already mentioned as connected with the first purpose.
To this point tend the words of President Pierce addressed to the soldiers of 1812 on the 8th of January 1855, in which he speaks of such as "disseminate political heresies," that is, the Idea of Freedom; "revile the government,"—expose its hostility against the unalienable Rights of man; "deride our institutions,"—to wit, the patriarchal institution of Slavery; "sow political dissensions,"—advise men not to vote for corrupt tools of the government; "set at defiance the laws of the land,"—meaning the fugitive slave bill which commands kidnapping.
There belong the attempts of the Federal courts to enlarge their jurisdiction at the expense of State Rights; the cry, "Union first and Liberty afterwards;" the shout "No higher law," "Religion nothing to do with Politics."
Thence come the attacks made on the freedom of the pulpit, of the press, and all freedom of speech. The Individual State which preserves freedom must be put down,—the individual person who protests against it must be silenced. No man must hold a federal office,—executive, diplomatic, judicial, or "ministerial,"—unless he has so far conquered his "prejudices" in favor of the natural Rights of man that he is ready to enslave a brother with alacrity. All these steps belong to Measure number Two.
This latter Measure advances to its execution, realizing the Idea of Slavery, with subtle steps, yet creeps on rapid-moving feet. See how it has gained ground latterly. Obviously the fugitive slave bill struck only at the natural Rights of Colored men—as valuable as those of white men, but the colored are few and the white many,—the experiment must be made on the feebler body. But this despotism cannot enslave a black girl without thereby putting in peril the liberty of every white man. At first our masters only asked of Boston a little piece of chain, but just long enough to shackle the virtuous hands of Ellen Craft, a wife and mother, whom her Georgian "owner" wished to sell as a harlot at New Orleans! A meeting was summoned at Faneuil Hall, and Boston answered, "Yes, here is the chain. Let the woman-hunter capture Ellen Craft, make her a Prostitute at New Orleans. She is a virtuous wife and mother,—but no matter. Slavery is king and commands it. Let the 'owner' have his chain."
There is no escaping the consequence of a first Principle. Soon that little chain lengthened itself out, and coiled itself all round thecourt 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. Againstme? Againstyouquite as much—against your children. For as Boston could not venture to kidnap a negro woman, without bringing down that avalanche of consequences connected with the Principle of Slavery,—without chains on her Judges, falsehood in her officers, blood in her courts, and drunken soldiers in her streets, and hypocrisy in her man-hunting ministers,—no more can she put me to silence alone. The thread which is to sew my lips together, will make your mouths but a silent and ugly seam in your faces. Slavery is Plaintiff in this case; Freedom Defendant. Before you as Judges, I plead your own cause—for you as defendant. I will not insult you by the belief or the fear that you can do other than right, in a matter where the law is so plain, and the Justice clear as noonday light. But should you decide as the wicked wish, as the court longs to instruct you, you doom your mouths to silence; you bow your manly faces to the ground, destine your memories to shame, and your children to bondage worse than negro slavery.
Such, Gentlemen of the Jury, is the state of affairs leading to this Prosecution—such the past, present, and prospective Encroachmentsof a Power hostile to Democratic Institutions and the unalienable Rights they were designed to protect. Such also are the two Measures now in contemplation,—the Extension of African Bondage, and the Destruction of American Freedom.
II.Look next at the Mode of Operation hitherto pursued by this Encroaching Power, in other times and nations, and in our own, systematic corruption of the Judiciary.
Here I shall show the process by which that Principle of Slavery becomes a Measure of political ruin to the People.
In substance Despotism is always the same, Spanish or Carolinian, but the form varies to suit the ethnologic nature and historical customs of different people. I shall mention two forms—one to illustrate, the other to warn.
(I.) The open Assumption of Power by military violence. This method is followed in countries where love of Individual Liberty is not much developed in the consciousness of the people, and where democratic institutions are not fixed facts in their history; where the nation is not accustomed to local self-government, but wonted to a strong central power directed by a single will. This form prevails in Russia, Turkey, and among all the Romanic tribes in Europe, and their descendants in America. Military usurpation, military rule is indigenous in France,—where two Napoleons succeed thereby,—in Italy, in Spain, and most eminently in Spanish America. But no people of the Teutonic family for any length of time ever tolerated a usurping soldier at the head of affairs, or submitted to martial arbitrary rule, or military violence in the chief magistrate. It is against our habit and disposition.
Neither Cromwell nor William of Orange could do with the Anglo-Saxon what it would have been impossible not to do with Spaniards or Italians. Even warlike Swiss—Teutonic tribes—will have a government with due process of law, not by the abrupt violence of the soldier. Washington could not have established a military monarchy in America had he been so wickedly disposed. Even William the Conqueror must rule the Saxons by Saxon law.
(II.) The corruption of the acknowledged safeguards of public security. This is attempted in nations who have a well-known love of individual liberty, and institutional defences thereof, the habit of Local Self-government by Democratic Law-making and Law-administering. For example, this experiment has been repeatedly made in England. The monarch seeking to destroy the liberty of the people,accomplishes his violent measure by the forms of peaceful law, by getting the judicial class of men on the side of despotism. Then all the wickedness can be done in the name, with the forms, and by "due process" of law, by regular officers thereof—done solemnly with the assistance of slow and public deliberation.
Gentlemen of the Jury, this is a matter of such importance to the People of America just now, that I must beg you to bear with me while I explain this subtle operation. I will select examples from the history of England which are easy to understand, because her blood is kindred to our own, and the institutions of the two countries are related as parent and child. And besides, her past history affords alike warning and guidance in our present peril.
(I.) The first step in this process of political iniquity is, to appoint men for judges and other officers of the court, who know no law higher than the selfish will of the hand that feeds them, mere creatures of therest.
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 Courtof 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."
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."
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 Kingor 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, toblunt the edge and vaine popular humor of some lawyers at the Barre, that think they are not eloquent and bold-spirited enough, except theymeddle with the King's Prerogative." "That which concerns the mysterie of the King's Power is not lawfulto be disputed."[7]Gentlemen, that was worthy of some judicial charges which you and I have heard.
Charles I. (1625-1659,) pursued the same course of tyranny by the same steps. Coventry could be implicitly relied on to do as commanded, and was made Lord Keeper in 1625. When the question of Ship-money was to be brought forward in 1636, Chief Justice Heath was thought not fit to be trusted with wielding the instrument of tyranny, and accordingly removed; "and Finch, well known to be ready to go all lengths, was appointed in his place." For he had steadfastly maintained that the King was absolute, and could dispense with law and parliament,—a fit person to be a Chief Justice, or a Lord Chancellor, in a tyrant's court, ready to enact iniquity into law. His compliance with the King's desire to violate the first principle of Magna Charta, "endeared him to the Court, and secured him further preferment as soon as any opportunity should occur." So he was soon made Lord Chancellor and raised to the peerage. Littleton had once been on the popular side, but deserted and went over to the Court—he was sure of preferment; and as he became more and more ready to destroy the liberties of the People, he was made Chief Justice, and finally Lord Chancellor in 1641. Lane was a "steady friend of the prerogative," and so was made Attorney-General to the Prince of Wales, and thence gradually elevated to the highest station.
Other Judicial appointments were continually made in the same spirit. Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the government questioned him to ascertain if he were "sound," and were shocked to hear him declare that the King had no right to levy taxes without consent of Parliament, or imprison his subjects without due process of law. He was "immediately dismissed from his office," (1626,) and Sir Nicolas Hyde appointed in his place. By such means the courts were filled with tools of the King or his favorites, and the pit digged for the liberties of the People, into which at last there fell—the head of the King!
Charles II. and James II., (1655-1686,) did not mend the evil, but appointed for judges "such a pack as had never before sat in Westminster Hall." Shaftesbury and Guildford had the highest judicial honors. Lord Chancellor Finch, mentioned already, had been accused by the Commons of High Treason and other misdemeanors, but escaped to the continent, and returned after the Restoration. He was appointed one of the Judges to try the Regicides. Thus he "who had been accused of high treason twenty years before by a fullparliament, 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]
In these reigns such men as Saunders, Wright, and Scroggs, were made Judges, men of the vilest character, with the meanest appetites, licentious, brutal, greedy of power and money, idiotic in the moral sense, appointed solely that they might serve as tools for the oppression of the People. Among these infamous men was George Jeffreys, of whom Lord Campbell says,—"He has been so much abused that I began my critical examination of his history in the hope and belief that I should find that his misdeeds had been exaggerated, and that I might be able to rescue his memory from some portion of the obloquy under which it labors; but I am sorry to say that in my matured opinion his cruelty and his political profligacy have not been sufficiently exposed or reprobated; and that he was not redeemed from his vices by one single solid virtue."[10]But in consequence of his having such a character, though not well-grounded in law, he was made a Judge, a Peer, and a Lord Chancellor! Wright, nearly as infamous, miraculously stupid and ignorant, "a detected swindler, knighted and clothed in ermine, took his place among the twelve judges of England."[11]He also was made Chief Justice successively of the Common Pleas and the King's Bench! Lord Campbell, himself a judge, at the end of his history of the reign of Charles and James, complains of "the irksome task of relating the actions of so many men devoid of political principle and ready to suggest or to support any measures, however arbitrary or mischievous, for the purpose of procuring their own advancement."[12]It was the practice of the Stuarts "to dismiss judges without seeking any other pretence, who showed any disposition to thwart government in political prosecutions."[13]Nor was this dismissal confined to cases where the judge would obey the law in merely Political trials. In 1686 four of the judges denied that the king had power to dispense with the laws of the land and change the form of religion: the next morning they were all driven from their posts, and four others, more compliant, were appointed and the judicial "opinion was unanimous." Hereupon Roger Coke says well,—"the king ... will make the judges in Westminster Hall to murder the common law, as well as the king and his brother desired to murder the parliament by itself; and to this end the king, when he would make any judges would make a bargain with them, that they should declare the king'spower of dispensing with the penal laws and tests made against recusants, out of parliament."[14]
Here, Gentlemen of the Jury, I must mention three obscure judges who received their appointments under Stuart kings. Before long I shall speak of their law and its application, and now only introduce them to you as a measure preliminary to a more intimate acquaintance hereafter.
1. The first is Sir William Jones, by far the least ignoble of the three. He was descended from one of the Barons who wrung the Great Charter from the hands of King John in1618, and in 1628 dwelt in the same house which sheltered the more venerable head of his Welsh ancestor. In 1628 he was made judge by Charles I. He broke down the laws of the realm to enable the king to make forced loans on his subjects, and by his special mandate (Lettre de Cachet) to imprison whom he would, as long as it pleased him, and without showing any reason for the commitment or the detention! Yes, he supported the king in his attempt to shut up members of parliament for words spoken in debate in the house of commons itself; to levy duties on imports, and a tax of ship-money on the land. He was summoned before parliament for his offences against public justice, and finally deprived of office, though ungratefully, by the king himself.[15]
2. Thomas Twysden was counsel for George Coney in 1655, a London merchant who refused to pay an illegal tax levied on him by Cromwell—who followed in the tyrannical footsteps of the king he slew. Twysden was thrown into the Tower for defending his client—as Mr. Sloane, at Sandusky, has just been punished by the honorable court of the United States for a similar offence,—but after a few days made a confession of his "error," defending the just laws of the land, promised to offend no more, and was set at liberty, ignominiously leaving his client to defend himself and be defeated. This Twysden was made judge by Charles II. The reporters recording his decisions put down "Twysden in furore," thinly veiling the judicial wrath in modest Latin. He was specially cruel against Quakers and other dissenters, treating George Fox, Margarett Fell, and John Bunyan with brutal violence.[16]
3. Sir John Kelyng is another obscure judge of those times. In the civil war he was a violent cavalier, and "however fit he might be tochargethe Roundheads under Prince Rupert, he was very unfit tochargea jury in Westminster Hall." In 1660 he took part in the trial of the Regicides and led in the prosecution of Colonel Hacker, who in 1649 had charge of the execution of Charles I. In 1662 he took part in the prosecution of Sir Henry Vane, and by his cruel subtlety in constructing law, that former governor of Massachusetts,—one of the most illustrious minds of England, innocent of every crime, was convicted of high treason and put to death.[17]For this service, in 1663 Kelyng was made a judge; and then, by loyal zeal and judicial subserviency, he made up "for his want of learning and sound sense." But he was so incompetent that even the court of Charles II. hesitated to make him more than a puny judge. But he had been a "valiant cavalier," and had done good service already in making way with such as the king hated, and so after the death of Sir Nicolas Hyde, he was made Lord Chief Justice in his place. "In this office," says Judge Campbell, he "exceeded public expectation by the violent, fantastical, and ludicrous manner in which he conducted himself."[18]But I will not now anticipate what I have to say of him in a subsequent part of this defence.
Gentlemen of the Jury, we shall meet these three together again before long, and I shall also speak of them "singly or in pairs." In the mean time I will mention one similar appointment in the reign of George the III.—the last king of New England.
In 1770 Sergeant Glynn, in Parliament, moved for an inquiry into the administration of criminal justice. Edmund Thurlow, a rough venal man, then recently appointed solicitor-general, proposed that a severe censure should be passed on him for the motion. Thurlow wanted the trial by jury abolished in all cases of libel, so that the liberty of the people should be in the exclusive care of government attorneys and judges appointed by the crown. Hear him speak on the 6th of December, 1770.
"In my opinion no man should be allowed with impunity to make a wanton attack upon such venerable characters as the judges of the land. We award costs and damages to the aggrieved party in the most trifling actions. By what analogy, then, can we refuse the same justice in the most important cases, to the most important personages? If we allow every pitiful patriot thus to insult us with ridiculous accusations, without making him pay forfeit for his temerity, we shall be eternally pestered with the humming and buzzing of these stingless wasps. Though they cannot wound or poison, they will tease and vex. They will divert our attention from the important affairs of State to their own mean antipathies, and passions, and prejudices. Did they not count upon the spirit of the times and imagine that the same latitude which is taken by the libellers is here allowable, they would not have dared to offer so gross an outrage. I hope we shall now handle them so roughly as to make this the last of suchaudacious attempts. They are already ridiculous and contemptible. To crown their disgrace, let us inflict some exemplary punishment. Else none of us is safe. Virtue and honor, you see from this instance, are no safeguard from their attacks.""The nature, the direct effect, and the remote consequences of a State libel, are so complicated and involved with various considerations of great pith and moment, that few juries can be adequate judges. So many circumstances are at once to be kept in view, so many ponderous interests are to be weighed, so many comparisons to be made, and so many judgments formed, that the mind of an ordinary man is distracted and confounded, and rendered incapable of coming to any regular conclusion. None but a judge, a man that has from his infancy been accustomed to decide intricate cases, is equal to such a difficult task. If we even suppose the jury sufficiently enlightened to unravel those knotty points, yet there remains an insuperable objection. In State libels, their passions are frequently so much engaged, that they may be justly considered as parties concerned against the crown.""In order, therefore, to preserve the balance of our constitution,let us leave to the judges, as the most indifferent persons,the right of determining the malice or innocence of the intention.""It is not that I think the intention a matter of fact; no, in the sense put upon it by the judges, it is a matter of law.""Much dust has been raised about civil and criminal actions. But to what purpose? Is not reparation to be made to the public for any injury which it may have sustained, as much as to an individual? Is the welfare of the nation in general, of less consequence than that of a single person? Where then is the propriety of making such a bustle about the malice or innocence of the intention? The injury done is the only proper measure of the punishment to be inflicted, as well as of the damage to be assessed. Since you cannot plead the intention as a mitigation in the latter case, neither can you in the former."[19]
"In my opinion no man should be allowed with impunity to make a wanton attack upon such venerable characters as the judges of the land. We award costs and damages to the aggrieved party in the most trifling actions. By what analogy, then, can we refuse the same justice in the most important cases, to the most important personages? If we allow every pitiful patriot thus to insult us with ridiculous accusations, without making him pay forfeit for his temerity, we shall be eternally pestered with the humming and buzzing of these stingless wasps. Though they cannot wound or poison, they will tease and vex. They will divert our attention from the important affairs of State to their own mean antipathies, and passions, and prejudices. Did they not count upon the spirit of the times and imagine that the same latitude which is taken by the libellers is here allowable, they would not have dared to offer so gross an outrage. I hope we shall now handle them so roughly as to make this the last of suchaudacious attempts. They are already ridiculous and contemptible. To crown their disgrace, let us inflict some exemplary punishment. Else none of us is safe. Virtue and honor, you see from this instance, are no safeguard from their attacks."
"The nature, the direct effect, and the remote consequences of a State libel, are so complicated and involved with various considerations of great pith and moment, that few juries can be adequate judges. So many circumstances are at once to be kept in view, so many ponderous interests are to be weighed, so many comparisons to be made, and so many judgments formed, that the mind of an ordinary man is distracted and confounded, and rendered incapable of coming to any regular conclusion. None but a judge, a man that has from his infancy been accustomed to decide intricate cases, is equal to such a difficult task. If we even suppose the jury sufficiently enlightened to unravel those knotty points, yet there remains an insuperable objection. In State libels, their passions are frequently so much engaged, that they may be justly considered as parties concerned against the crown."
"In order, therefore, to preserve the balance of our constitution,let us leave to the judges, as the most indifferent persons,the right of determining the malice or innocence of the intention."
"It is not that I think the intention a matter of fact; no, in the sense put upon it by the judges, it is a matter of law."
"Much dust has been raised about civil and criminal actions. But to what purpose? Is not reparation to be made to the public for any injury which it may have sustained, as much as to an individual? Is the welfare of the nation in general, of less consequence than that of a single person? Where then is the propriety of making such a bustle about the malice or innocence of the intention? The injury done is the only proper measure of the punishment to be inflicted, as well as of the damage to be assessed. Since you cannot plead the intention as a mitigation in the latter case, neither can you in the former."[19]
What followed? On the 23d of July, 1771, he was made Attorney-General. His subsequent history did not disappoint the prophecy uttered above by his former conduct and his notorious character. "In truth his success was certain, with the respectable share he possessed of real talents and of valuable requirements—strongly marked features, piercing eyes, bushy eyebrows, and a sonorous voice, all worked to the best effect by an immeasurable share of self-confidence—he could not fail."[20]He hated America with the intense malignity of a low but strong and despotic nature, and "took a most zealous part and uttered very violent language against the colonists. He scorned the very notion of concession or conciliation; he considered 'sedition' and 'treason,' (liketobaccoandpotatoes,) the peculiar plants of the American soil. The natives of these regions he thought were born to be taxed."[21]He favored the Stamp Act, the Coercion Bill,—quartering soldiers upon us, sending Americans beyond seas for trial,—the Boston Port Bill, and all the measures against the colonies. "To say that we have a right to tax America and never exercise that right, is ridiculous, and a man must abuse hisunderstanding very much not to allow of that right;" "the right of taxing was never in the least given up to the Americans."[22]On another occasion he said, that "as attorney-general he had a right to set aside every charter in America."[23]What followed? Notwithstanding his youthful profligacy, the open profanity of his public and private speech, and his living in public and notorious contempt of matrimony,—he was made Lord Chancellor and elevated to the peerage in 1778! Him also we shall meet again.
Gentlemen of the Jury, I might as well try to bale all the salt water out of the sea as to mention every glaring and notorious instance where an oppressive government has appointed some discarder of all Higher Law for its servant in crushing the People. Come therefore to the next point.
(II.) The next step is by means ofsuch Judges to punish and destroy or silence men who oppose the wickedness of the party in power, and the encroachments of despotism. Let me describe the general mode of procedure, and then illustrate it by special examples.
1. In the Privy Council, or elsewhere, it is resolved to punish the obnoxious men,—and the business is intrusted to the law-officers of the crown, appointed for such functions.
2. They consult and agree to pervert and twist the law—statute or common—for that purpose. By this means they gratify their master, and prepare future advancement for themselves.
3. The precedent thus established becomes the basis for new operations in the future, and may be twisted and perverted to serve other cases as they occur.
Now, Gentlemen, look at some examples taken from British history, in times of the same Kings mentioned before.
1. In 1610 two Puritans for refusing theex officiooath, were clapped in Jail by the commissioners. They were brought onhabeas corpusbefore a court, and Mr. Fuller, their counsel, a learned lawyer, insisted that they were imprisoned without due process of law. For this "contempt of court" he was thrown into jail by Archbishop Bancroft, whence he was rescued only by death.[24]
2. In 1613 there were many murmurs among the People of England at the tyranny of James. Fine and imprisonment did not quell the disturbance; so a more dreadful example was thought needful. The officials of Government broke into the study of Rev. Edmund Peacham, a Protestant minister, sixty or seventy years old. In anuncovered cask they found a manuscript sermon, never preached, nor designed for the pulpit or the press, never shown to any one. It contained some passages which might excite men to resist tyranny. He was arrested, and thrown into Jail, all his papers seized. The Government resolved to prosecute him for high treason. Francis Bacon, the powerful and corrupt Attorney-General, managed the prosecution. Before trial was ventured upon, he procured an extrajudicial opinion of the Judges appointed for such services,—irregularly given, out of court, that they would declare such an act high treason.
But a manuscript sermon, neither preached nor designed for the public, was hardly evidence enough of treason even for such Judges—so purchased, for such an Attorney—so greedy of preferment, with such a Cabinet and such a King. For all those, like the Pharisees of old, "feared the People." So their victim was tortured on the rack, and twelve leading questions prepared by the Government officials, were put to him there. I quote Secretary Winwood's record—still extant in his own handwriting—"He was this day examined before torture, in torture, between torture, and after torture; notwithstanding nothing could be drawn from him, he still persisting in his obstinate and insensible denials and former answers." Bacon was present at the torture, which took place in the Tower, Jan. 19, 1614, O.S. (30th Jan. 1615, N.S.). In August he was tried for high treason—"compassing and imagining the King's death"—before a packed jury; against law, and without legal evidence. He was of course found guilty under the ruling of the Court! But public opinion, even then making tyrants "tremble in their capitals," was so indignant at the outrage that the execution was not ventured on, and he was left to languish in Jail, till on the 27th of March, 1616, a King more merciful took the old minister where the wicked cease from troubling.[25]
In this case, Gentlemen of the Jury, you will notice three violations of the law.
(1.) The opinion of the Judges before the trial was extrajudicial and illegal.
(2.) The application of torture was contrary to law.
(3.) The statute of Treason was wrested to apply to this case—and a crime was constructed by the servants of the court.
It is curious to read the opinion of James himself. "The British Solomon" thus wrote:—