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THE TRIAL
OF
THEODORE PARKER,
FOR THE
"MISDEMEANOR"
OF
A Speech in Faneuil Hall against Kidnapping,
BEFORE THE CIRCUIT COURT OF THE UNITED STATES,
AT BOSTON, APRIL 3, 1855.
WITH
THE DEFENCE,
BY
THEODORE PARKER,
MINISTER OF THE TWENTY-EIGHTH CONGREGATIONAL SOCIETY IN BOSTON.
BOSTON:
PUBLISHED FOR THE AUTHOR.
1855.
Entered according to Act of Congress, in the year 1855, by
THEODORE PARKER,
In the Clerk's Office of the District Court of the District of
Massachusetts.
CAMBRIDGE:
ALLEN AND FARNHAM, PRINTERS.
CONTENTS
PREFACE
INTRODUCTION
DEFENCE
ERRATA
OTHER WORKS BY THE SAME AUTHOR
TO
JOHN PARKER HALE
AND
CHARLES MAYO ELLIS,
MAGNANIMOUS LAWYERS,
FOR THEIR LABORS IN A NOBLE PROFESSION,
WHICH HAVING ONCE IN ENGLAND ITS KELYNG, ITS SAUNDERS, ITS JEFFREYS,
AND ITS SCROGGS, AS NOW IN AMERICA ITS SHARKEY, ITS GRIER, ITS CURTIS,
AND ITS KANE, HAS YET ALSO SUCH GENEROUS ADVOCATES OF HUMANITY AS
EQUAL THE GLORIES OF HOLT AND ERSKINE, OF MACKINTOSH AND ROMILLY,
FOR THEIR ELOQUENT AND FEARLESS DEFENCE OF TRUTH, RIGHT, AND LOVE,
THIS VOLUME IS DEDICATED,
BY THEIR CLIENT AND FRIEND,
THEODORE PARKER.
PREFACE.
TO THE PEOPLE OF THE FREE STATES OF AMERICA.
FELLOW-CITIZENS AND FRIENDS,--
If it were a merely personal matter for which I was arraigned before
the United States Court, after the trial was over I should trouble the
public no further with that matter; and hitherto indeed, though often
attacked, nay, almost continually for the last fourteen years, I have
never returned a word in defence. But now, as this case is one of such
vast and far-reaching importance, involving the great Human Right to
Freedom of Speech, and as the actual question before the court was
never brought to trial, I cannot let the occasion pass by without
making further use of it.
When Judge Curtis delivered his charge to the Grand-Jury, June 7th,
1854, I made ready for trial, and in three or four days my line of
defence was marked out--the fortifications sketched, the place of the
batteries determined; I began to collect arms, and was soon ready for
his attack. When that Grand-Jury, summoned with no special reference
to me, refused to find a bill and were discharged, I took public
notice of the conduct of Judge Curtis, in a Sermon for the Fourth of
July.[1] But I knew the friends of the fugitive slave bill at Boston
and Washington too well to think they would let the matter sleep; I
knew what arts could be used to pack a jury and procure a bill. So I
was not at all surprised when I heard of the efforts making by the
Slave Power in Boston to obtain an indictment by another grand-jury
summoned for that purpose. It need not be supposed that I was wholly
ignorant of their doings from day to day. The arrest was no
astonishment to me. I knew how much the reputation of this Court and
of its Attorney depended on the success of this prosecution. I knew
what private malignity was at work.
[Footnote 1: 2 Parker's Additional Speeches, 178-283.]
After my arraignment I made elaborate preparation for my defence. I
procured able counsel, men needing no commendation, to manage the
technical details which I knew nothing about and so could not meddle
with, while I took charge of other matters lying more level to my own
capacity. I thought it best to take an active part in my own
defence,--for the matter at issue belonged to my previous studies and
general business; my personal friends and the People in general,
seemed to expect me to defend myself as well as I could.
A great political revolution took place between the Judge's charge and
my arraignment, June 7th, and November 29th, 1854, and I thought the
Court would not allow the case to come to open argument. For
certainly, it would not be a very pleasant thing for Judge Sprague and
Judge Curtis, who have taken such pains to establish slavery in
Massachusetts, to sit there--each like a travestied Prometheus,
chained up in a silk gown because they had brought to earth fire from
the quarter opposite to Heaven--and listen to Mr. Hale, and Mr.
Phillips and other anti-slavery lawyers, day after day: there were
facts, sure to come to light, not honorable to the Court and not
pleasant to look at in the presence of a New England community then
getting indignant at the outrages of the Slave Power. I never thought
the case would come to the jury. I looked over the indictment, and to
my unlearned eye it seemed so looped and windowed with breaches that a
skilful lawyer might drive a cart and six oxen through it in various
directions; and so the Court might easily quash the indictment and
leave all the blame of the failure on the poor Attorney--whom they
seemed to despise, though using him for their purposes--while they
themselves should escape with a whole reputation, and ears which had
not tingled under manly speech.
Still, it was possible that the trial would come on. Of course, I knew
the trial would not proceed on the day I was ordered to appear--the
eighty-fifth anniversary of the Boston Massacre. It would be
"unavoidably postponed," which came to pass accordingly. The Attorney,
very politely, gave me all needed information from time to time.
At the "trial," April 3d, it was optional with the defendant's counsel
to beat the Government on the indictment before the Court; or on the
merits of the case before the Jury. The latter would furnish the most
piquant events, for some curious scenes were likely to take place in
the examination of witnesses, as well as instruction to be offered in
the Speeches delivered. But on the whole, it was thought best to blow
up the enemy in his own fortress and with his own magazine, rather
than to cut him to pieces with our shot in the open field. So the
counsel rent the indictment into many pieces--apparently to the great
comfort of the Judges, who thus escaped the battle, which then fell
only on the head of the Attorney.
At the time appointed I was ready with my defence--which I now print
for the Country. It is a Minister's performance, not a lawyer's. Of
course, I knew that the Court would not have allowed me to proceed
with such a defence--and that I should be obliged to deliver it
through the press. Had there been an actual jury trial, I should have
had many other things to offer in reference to the Government's
evidence, to the testimony given before the grand-jury, and to the
conduct of some of the grand-jurors themselves. So the latter part of
the defence is only the skeleton of what it otherwise might have
been,--the geological material of the country, the Flora and Fauna
left out.
It would have been better to publish it immediately after the decision
of the case: but my _brief_ was not for the printer, and as many
duties occurred at that time, it was not till now, in a little
vacation from severer toils, that I have found leisure to write out my
defence in full. Fellow-Citizens and Friends, I present it to you in
hopes that it may serve the great cause of Human Freedom in America
and the world; surely, it has seldom been in more danger.
THEODORE PARKER.
BOSTON, _24th August_, 1855.
INTRODUCTION.
On Tuesday, the 23d of May, 1854, Charles F. Suttle of Virginia,
presented to Edward Greeley Loring, Esquire, of Boston, Commissioner,
a complaint under the fugitive slave bill--Act of September 18th,
1850--praying for the seizure and enslavement of Anthony Burns.
The next day, Wednesday, May 24th, Commissioner Loring issued the
warrant: Mr. Burns was seized in the course of the evening of that
day, on the false pretext of burglary, and carried to the Suffolk
County Court House in which he was confined by the Marshal, under the
above-named warrant, and there kept imprisoned under a strong and
armed guard.
On the 25th, at about nine o'clock in the morning, the Commissioner
proceeded to hear and decide the case in the Circuit Court room, in
which were stationed about sixty men serving as the Marshal's guard.
Seth J. Thomas, Esquire, and Edward Griffin Parker, Esquire, members
of the Suffolk Bar, appeared as counsel for Mr. Suttle to help him and
Commissioner Loring make a man a Slave. Mr. Burns was kept in irons
and surrounded by "the guard." The Slave-hunter's documents were
immediately presented, and his witness was sworn and proceeded to
testify.
Wendell Phillips, Theodore Parker, Charles M. Ellis, and Richard H.
Dana, with a few others, came into the Court room. Mr. Parker and some
others, spoke with Mr. Burns, who sat in the dock ironed, between two
of the Marshal's guard. After a little delay and conference among
these four and others, Mr. Dana interrupted the proceedings and asked
that counsel might be assigned to Mr. Burns, and so a defence allowed.
To this Mr. Thomas, the senior counsel for the Slave-hunters,
objected. But after repeated protests on the part of Mr. Dana and Mr.
Ellis, the Commissioner adjourned the hearing until ten o'clock,
Saturday, May 27th.
On the evening of Friday, May 26th, there was a large and earnest
meeting of men and women at Faneuil Hall. Mr. George R. Russell, of
West Roxbury, presided; his name is a fair exponent of the character
and purposes of the meeting, which Dr. Samuel G. Howe called to order.
Speeches were made and Resolutions passed. Mr. Phillips and Mr.
Parker, amongst others, addressed the meeting; Mr. Parker's speech, as
reported and published in the newspapers, is reprinted in this volume,
page 199. While this meeting was in session there was a gathering of a
few persons about the Court House, the outer doors of which had been
unlawfully closed by order of the Marshal; an attempt was made to
break through them and enter the building, where the Supreme Court of
Massachusetts was sitting engaged in a capital case; and the Courts of
this State must always sit with open doors. In the strife one of the
Marshal's guard, a man hired to aid in the Slave-hunt, was killed--but
whether by one of the assailing party, or by the Marshal's guard, it
is not yet quite clear. It does not appear from the evidence laid
before the public or the three Grand-Juries, that there was any
connection between the meeting at Faneuil Hall and the gathering at
the Court House.
Saturday, 27th, at ten o'clock, the Commissioner opened his Court
again, his prisoner in irons before him. The other events are well
known. Mr. Burns was taken away to Slavery on Friday, June 2d, by an
armed body of soldiers with a cannon.
The May Term of the Circuit Court at Boston began on the 15th of that
month, and the Grand-Jury for that term had already been summoned.
Here is the list:--
UNITED STATES CIRCUIT COURT, }
MASSACHUSETTS DISTRICT. }
May Term, 1854. ss. May 15, 1854.
GRAND-JURY.
1 Sworn. Isaac Tower, Randolph, Foreman.
2 " Elbridge G. Manning, Andover.
3 " Asa Angier, "
4 " Ballard Lovejoy, "
5 " Levi Eldridge, Chatham.
6 " Isaac B. Young, "
7 " Josiah Peterson, Duxbury.
8 " James Curtis, "
9 Not Sworn. William Amory, Boston, Excused first day.
Member of the bar.
10 Sworn. James P. Bush, " Absent June 28th.
11 " John Clark, "
12 " Charles H. Mills, "
13 " William N. Tyler, "
14 " Samuel Weltch, "
15 " Reuben Nichols, Reading.
16 " Benjamin M. Boyce, "
17 " Ephraim F. Belcher, Randolph.
18 " Thomas S. Brimblecome, Fairhaven.
19 " Obed F. Hitch, "
20 " Lowell Claflin, Hopkinton.
21 " William Durant, Leominster.
22 " Charles Grant, "
23 " Jeremiah B. Luther, Douglas.
On the 7th of June, Judge Curtis gave to this Grand-Jury his
charge.[2] In that he spoke of the enforcement of the fugitive slave
bill; and he charged the Jury especially and minutely upon the Statute
of the United States of 1790, in relation to resisting officers in
service of process as follows.
[Footnote 2: The charge is printed below, at page 170.]
That not only those who are present and actually obstruct, resist, and
oppose, and all who are present leagued in the common design, and so
situated as to be able in case of need, to afford assistance to those
actually engaged; but all who, though absent, did procure, counsel,
command, or abet others to commit the offence; and all who, by
indirect means, by _evincing an express liking, approbation, or assent
to the design, were liable as principals_. And he added, "My
instruction to you is, that language addressed to persons who
immediately afterwards commit an offence, actually intended by the
speaker to incite those addressed to commit it, and adapted thus to
incite them, is such a counselling, or advising to the crime as the
law contemplates, and the person so inciting others is liable to be
indicted as a principal," and _it is of no importance that his advice
or directions were departed from in respect to the time, or place, or
precise mode, or means of committing it_.
That Jury remained in session a few weeks: pains were taken to induce
them to find bills against the speakers at Faneuil Hall; but they
found no indictment under the law of 1790, or that of 1850; they were
discharged.
On the 22d of September, _venires_ were issued by order of the Court
for a new Grand-Jury; and, on the 16th of October, twenty-three were
returned by Marshal Freeman, and impanelled. Here is the list of new
Grand-Jurors:--
UNITED STATES CIRCUIT COURT, }
MASSACHUSETTS DISTRICT. }
October Term, 1854. ss. October 16, 1854.
GRAND-JURY.
1 Sworn. Enoch Patterson, Jr., Boston, Foreman.
2 " David Alden, "
3 " Stephen D. Abbott, Andover.
4 " Isaac Beal, Chatham.
5 " John Burrill, Reading.
6 " Mathew Cox, Boston.
7 " Richard B. Chandler, Duxbury.
8 " Charles L. Cummings, Douglas.
9 " Charles Carter, Leominster.
10 " Warren Davis, Reading.
11 " William W. Greenough, Boston.
12 " George O. Hovey, "
13 " John M. Howland, Fairhaven.
14 Sworn. Manson D. Haws, Leominster.
15 " John Holbrook, Randolph.
Excused. Nathaniel Johnson, Hopkinton, Excused first day,
October 16th, for
the term.
16 Sworn. George Londen, Duxbury.
17 " Nathan Moore, Andover.
18 " Samuel P. Ridler, Boston.
19 " Christopher Ryder, Chatham.
20 " John Smith, Andover.
21 " Appollos Wales, Randolph.
22 " Samuel L. Ward, Fairhaven.
This Grand-Jury was not charged by the Judge upon the statute of 1790,
or 1850, but was referred to Mr. Hallett, the Attorney, for the
instructions previously given to the Jury that had been discharged,
namely, for his charge of June 7th, already referred to. Mr. William
W. Greenough, brother-in-law of Judge Curtis, was one of the Jury.
They found the following indictment against Mr. Parker:--
UNITED STATES OF AMERICA.
_Circuit Court of the United States of America, for the
District of Massachusetts._
At a Circuit Court of the United States of America, for the
District of Massachusetts, begun and holden at Boston, the
aforesaid District, on the sixteenth day of October, in the
year of our Lord one thousand eight hundred and fifty-four
(the fifteenth day of said October being Sunday).
The Jurors of the United States within the aforesaid
District, on their oath, present.
1st. That heretofore to wit,--on the twenty-fourth day of
May, in the year of our Lord one thousand eight hundred and
fifty-four, a certain warrant and legal process directed to
the Marshal of the said District of Massachusetts, or either
of his Deputies, was duly issued under the hand and seal of
Edward G. Loring, Esquire, who was then and there a
Commissioner of the Circuit Court of the United States, for
said District, which said warrant and legal process was duly
delivered to Watson Freeman, Esquire, who was then and there
an officer of the United States, to wit, Marshal of the
United States, for the said District of Massachusetts, at
Boston, in the District aforesaid, on the said twenty-fourth
day of May in the year aforesaid, and was of the purport and
effect following, that is to say:--
UNITED STATES OF AMERICA.
MASSACHUSETTS DISTRICT, SS.
To the Marshal of our District of Massachusetts, or either
of his Deputies, _Greeting_:
In the name of the President of the United States of
America, you are hereby commanded forthwith to apprehend
Anthony Burns, a negro man, alleged now to be in your
District, charged with being a fugitive from labor, and with
having escaped from service in the State of Virginia, if he
may be found in your precincts, and have him forthwith
before me, Edward G. Loring, one of the Commissioners of the
Circuit Court of the United States for the said District,
then and there to answer to the complaint of Charles F.
Suttle, of Alexandria, in the said State of Virginia,
Merchant, alleging under oath that the said Anthony Burns on
the twenty-fourth day of March last, did and for a long time
prior thereto had, owed service and labor to him the said
Suttle, in the said State of Virginia, under the laws
thereof, and that, while held to service there by said
Suttle, the said Burns escaped from the said State of
Virginia, into the State of Massachusetts; and that the said
Burns still owes service and labor to said Suttle in the
said State of Virginia, and praying that said Burns may be
restored to him said Suttle in said State of Virginia, and
that such further proceedings may then and there be had in
the premises as are by law in such cases provided.
Hereof fail not, and make due return of this writ, with your
doings therein before me.
Witness my hand and seal at Boston, aforesaid, this
twenty-fourth day of May, in the year one thousand eight
hundred and fifty-four.
EDWARD G. LORING, _Commissioner_. [L.S.]
And the Jurors aforesaid do further present, that the said
warrant and legal process, being duly issued and delivered
as aforesaid, afterwards to wit, on the twenty-fifth day of
May, in the year aforesaid, at Boston in said District, the
said Watson Freeman then and there being an officer of the
said United States, to wit Marshal of the District
aforesaid, and in pursuance of said warrant and legal
process, did then and there arrest the said Anthony Burns
named therein, and had him before the said Edward G. Loring,
Commissioner, for examination--and thereupon the hearing of
the said case was adjourned by the said Commissioner until
Saturday the twenty-seventh day of May, in the year
aforesaid, at ten o'clock in the forenoon; and the said
Marshal, who had so made return of the said Warrant, was
duly ordered by the said Commissioner to retain the said
Anthony Burns in his custody, and have him before the said
Commissioner on the said twenty-seventh day of May in the
year aforesaid, at the Court House in said Boston, which
said last-mentioned legal process and order was duly issued
under the hand of the said Edward G. Loring, Commissioner,
and was of the purport and effect following, that is to say:
U.S. OF AMERICA, DISTRICT OF MASSACHUSETTS.
_Boston, May 25_, 1854.
And now the hearing of this case being adjourned to
Saturday, May 27, 1854, 10 A.M., the said Marshal, who has
made return of this warrant, is hereby ordered to retain the
said Anthony Burns in his custody, and have him before me at
the time last mentioned, at the Court House in Boston, for
the further hearing of the Complaint on which the warrant
was issued.
EDWARD G. LORING, _Commissioner_.
And the Jurors aforesaid do further present, that on the
twenty-sixth day of May, in the year aforesaid, in pursuance
of the warrant and legal process aforesaid, and of said
further legal process and order last mentioned, the said
Watson Freeman, Marshal as aforesaid, then and there, at the
said Court House in said Boston, had in his custody the
person of the said Anthony Burns, in the due and lawful
execution of the said warrant and legal process, and of the
said further legal process and order, in manner and form as
he was therein commanded--and one Theodore Parker, of
Boston, in said District, Clerk, then and there well knowing
the premises, with force and arms did knowingly and wilfully
obstruct, resist, and oppose the said Watson Freeman, then
and there being an officer of the said United States, to
wit, Marshal of the said District, in serving and attempting
to serve and execute the said warrant and legal process, and
the said further legal process and order in manner and form
as he was therein commanded, to the great damage of the said
Watson Freeman, to the great hinderance and obstruction of
Justice, to the evil example of all others, in like case
offending, against the peace and dignity of the said United
States, and contrary to the form of the Statute in such case
made and provided.
2d. And the Jurors aforesaid, on their oath aforesaid, do
further present, that on the twenty-sixth day of May, in the
year of our Lord one thousand eight hundred and fifty-four,
at Boston, in said District, one Theodore Parker, of Boston,
in said District, Clerk, with force and arms, did knowingly
and wilfully obstruct, resist, and oppose one Watson
Freeman, who was then and there the Marshal of the United
States of America, for the District of Massachusetts, and an
officer of the said United States, in serving and attempting
to serve and execute a certain warrant and legal process,
which before that time, to wit, on the twenty-fourth day of
May, in the year of our Lord one thousand eight hundred and
fifty-four, had been duly issued under the hand and seal of
Edward G. Loring, Esquire, a Commissioner of the Circuit
Court of the United States, for said District of
Massachusetts, and directed to the Marshal of the District
of Massachusetts, or either of his deputies, which said
warrant and legal process the said Freeman, in the due and
lawful execution of his said office, had then and there in
his hands and possession for service of the same, and which
he was then and there serving and attempting to serve and
execute; which said warrant commanded the said Freeman to
apprehend one Anthony Burns and to have him forthwith before
the said Commissioner, then and there to be dealt with
according to law. Against the peace and dignity of the said
United States, and contrary to the form of the Statute in
such case made and provided.
3d. And the Jurors aforesaid, on their oath aforesaid, do
further present, that on the twenty-sixth day of May, in the
year of our Lord one thousand eight hundred and fifty-four,
at Boston, in said District, the said Theodore Parker, with
force and arms, did knowingly and wilfully obstruct, resist,
and oppose one Watson Freeman, who was then and there an
officer of the said United States, to wit, the Marshal of
the United States for the said District of Massachusetts, in
serving and attempting to serve and execute a certain legal
process which before that time, to wit, on the 25th day of
May, in the year of our Lord one thousand eight hundred and
fifty-four, had been duly issued under the hand of Edward G.
Loring, who was then and there a Commissioner of the Circuit
Court of the United States, for the said District of
Massachusetts, and was then and there duly empowered to
issue said legal process, and which said legal process was
duly committed for obedience and execution to the said
Freeman, Marshal as aforesaid, wherein and whereby and in
pursuance of the command whereof the said Freeman was then
and there lawfully retaining, detaining, and holding one
Anthony Burns for the further hearing and determination of a
certain complaint, upon which a warrant before that time, to
wit, on the twenty-fourth day of said May, had been duly
issued under the hand and seal of the said Commissioner, by
force of which warrant the said Anthony Burns had been duly
arrested and apprehended by the said Freeman, and in
execution of the same, on the twenty-fifth day of said May
had been brought by the said Freeman before the said
Commissioner.
4th. And the jurors aforesaid, on their oath aforesaid, do
further present, that on the twenty-sixth day of May, in the
year of our Lord one thousand eight hundred and fifty-four,
at Boston, in said district, the said Theodore Parker, with
force and arms, did knowingly and wilfully obstruct, resist,
and oppose one Watson Freeman, who was then and there an
officer of the said United States, to wit, Marshal of the
United States, for the District of Massachusetts, in serving
and attempting to serve and execute a certain warrant and
legal process, which before that time, to wit, on the
twenty-fourth day of May, in the year of our Lord one
thousand eight hundred and fifty-four, had been duly issued
under the hand and seal of Edward G. Loring, Esquire, a
Commissioner of the Circuit Court of the United States, for
the District of Massachusetts, and directed to the Marshal
of the said District of Massachusetts or either of his
Deputies, which the said Freeman, in the due and lawful
execution of his said office, had then and there in his
hands and possession for service of the same, and which he
was then and there serving and attempting to serve and
execute; which warrant commanded the said Freeman to
apprehend one Anthony Burns, and to have him forthwith
before the said commissioner and that such further
proceedings might then and there be had in the premises, as
are by law in such cases provided,--and also in serving and
attempting to serve and execute a certain further legal
process which before that time, to wit, on the twenty-fifth
day of May, in the year aforesaid, had been duly issued
under the hand of the said Commissioner, and duly committed
for obedience and execution to the said Freeman, wherein and
whereby, and in pursuance of the command whereof, the said
Freeman was then and there lawfully retaining, detaining,
and holding the said Anthony Burns for the further hearing
and determination of a certain complaint upon which the
warrant aforesaid had been issued by the said Commissioner.
5th. And the Jurors aforesaid on their oath aforesaid, do
further present that one Theodore Parker, of Boston, in said
District, Clerk, on the 26th day of May, in the year of our
Lord one thousand eight hundred and fifty-four, at Boston,
in the said District of Massachusetts, with force and arms,
in and upon one Watson Freeman, then and there in the peace
of the said United States being, an assault did make, he the
said Freeman also then and there being an officer of the
said United States, to wit, Marshal of the United States,
for the said District of Massachusetts, and then and there
also being in the due and lawful discharge of his duties as
such officer. And so the jurors aforesaid, on their oath
aforesaid, do say and present that the said Theodore Parker,
at Boston aforesaid, on the said twenty-sixth day of said
May, with force and arms assaulted the said Freeman as such
officer, and knowingly and wilfully obstructed, resisted,
and opposed him in the discharge of his lawful duties in
manner and form aforesaid, against the peace and dignity of
the said United States, and contrary to the form of the
Statute in such cases made and provided. And the Jurors
aforesaid, on their oath aforesaid, do further present that
the said Theodore Parker was first apprehended in said
District of Massachusetts, after committing the aforesaid
offence, against the peace and dignity of the said United
States, and contrary to the form of the statute in such case
made and provided. A true bill.
ENOCH PATTERSON, JR., _Foreman_.
B.F. HALLETT, _United States Attorney for the District of
Massachusetts_.
Similar indictments were found against Mr. Phillips, Mr. Stowell, Rev.
T.W. Higginson, John Morrison, Samuel T. Proudman, and John C. Cluer.
Mr. Parker was arraigned on Wednesday, November 29th, and ordered to
recognize in bonds of $1,500 for his appearance at that Court, on the
5th of March, 1855. His bondsmen were Messrs. Samuel May, Francis
Jackson, and John R. Manley; his counsel were Hon. John P. Hale, and
Charles M. Ellis, Esq. The other gentlemen were arraigned afterwards
at different times.
After considerable uncertainty about the engagements of Hon. Justice
Curtis, Tuesday, April 3d, was fixed for the commencement of the
trials. At that time there appeared as counsel for the government,
Hon. Benjamin F. Hallett, District Attorney, and Elias Merwin, Esq.,
formerly a law partner of Judge Curtis; on the other side were Hon.
John P. Hale, and Charles M. Ellis, Esq., for Mr. Parker; Wm. L. Burt,
Esq., John A. Andrew, Esq., and H.F. Durant, Esq., counsel for Messrs.
Phillips, Higginson, Stowell, Bishop, Morrison, Proudman, and Cluer.
Mr. Hale, as senior counsel, stated to the court that the counsel for
the defendants in several of the cases had conferred, and
concluded--on the supposition that the Court and Government would
assent to the plan as most for their own convenience, as well as that
of the defendants' counsel--to file the like motion on the different
cases; and, instead of each counsel going over the whole ground for
each case, to divide the matter presented for debate, and for each to
discuss some particular positions on behalf of them all. This was
assented to; and motions, of which the following is a copy, were filed
in the several cases:--
CIRCUIT COURT OF THE UNITED STATES, MASSACHUSETTS DISTRICT,
SS.
_United States by Indictment_ v. _Theodore Parker._
And now said Theodore Parker comes and moves that the
indictment against him be quashed, because,
"1. The writ of venire for the jury that found said
indictment was directed to and returned by Watson Freeman,
the Marshal, who was not an indifferent person, and it was
not served and returned as the law directs.
"2. Because said Jury was not an impartial Jury of the
District, designated as the laws require, but the jury
Districts for this court embrace but a portion of the
District and of the population, and said jury was in fact
chosen and designated from but a fraction of the District
and contrary to law.
"3. Because the matters and things alleged in said
indictment do not constitute any crime under the statute on
which said indictment is framed, the said statute not
embracing them, or being, so far as it might embrace them,
repealed by the statute of eighteen hundred and fifty.
"4. Because said indictment does not allege and set forth
fully and sufficiently the authority and the proceedings
whereon the alleged warrant and order were based, or facts
sufficient to show that the alleged process and order were
lawfully issued by any person duly authorized, and his
authority and jurisdiction, and that the same were within
such jurisdiction, and issued by the authority of the law,
and originated, issued, and directed as the law prescribes;
said warrant and order not being alleged to have issued from
any court or tribunal of general or special jurisdiction,
but by a person vested with certain specific statute
authority.
"5. Because said indictment and the several counts thereof
are bad on the face of them, as follows, viz.:--
"First, it nowhere appearing that the same were found by a
grand-jury, because the second and third counts do not
conclude, against the form of the statute, and have no
conclusion, because the third and fourth counts do not set
forth the estate, degree, or mystery of the person therein
charged.
"Because said indictment and the counts thereof are
repugnant and inconsistent, the same being based on an
alleged obstruction, resistance, and opposition to the
service of an action, order, or warrant, which is therein
averred to have been already served, executed, and returned.
"Because the first and fifth counts are double.
"Because the alleged order of May 25th, referred to therein,
was a void and illegal, order.
"Because, if the alleged warrant was served as therein
alleged, said Watson Freeman did not, and by law could not
thereafter, hold the person described therein, under any
process or order.
"And because the same do not set forth and allege fully and
specifically the acts charged to be offences against the
statute, so as to inform said party charged, of the nature
and cause of the accusation.
"6. Because the warrant set forth and referred to therein
was void on its face, and issued from and ran into a
jurisdiction not authorized by law, and directed the arrest
of a person without legal cause, and because said indictment
is otherwise bad, uncertain, and insufficient."
Mr. Wm. L. Burt commenced the argument of the motions, and presented
several of the points. He was followed by Mr. C.M. Ellis, J.A. Andrew,
and H.F. Durant, who severally discussed some of the grounds of the
motions.
Elias Merwin, Esquire, and Mr. Attorney Hallett, replied.
The Court stated that they did not wish to hear Hon. John P. Hale, who
was about to rejoin and close in support of the motion, and decided
that the allegation, on the indictment, that Edward G. Loring was a
Commissioner of the Circuit Court of the United States for said
District, was not a legal averment that he was such a Commissioner as
is described in the bill of 1850, and therefore the indictments were
bad.
The Court said they supposed it to be true that Mr. Loring was such a
Commissioner, and that his authority could be proved by producing the
record of his appointment; that they did not suppose the absence of
this averment could be of any practical consequence to the defendants,
so far as respected the substantial merits of the cases; and it was
true the objection to the indictment was "technical;" but they held it
sufficient, notwithstanding the averment that the warrant was "_duly
issued_," and ordered the indictment against Stowell to be quashed. On
every other point, save that that the Court could properly construct
the Jury _roster_ and return the Jury from a portion of the District,
the Judge said they would express no opinion.
Mr. Hallett insisted on his right to enter a _nolle prosequi_ in the
other cases; and the Judges decided that, though all the cases had
been heard upon the motion, yet as it could make no difference whether
an entry were made that this indictment be quashed, or an entry of
_nolle prosequi_, the Attorney might enter a _nolle prosequi_ if he
chose to do so _then_, before the Court passed any order on the
motions.
Mr. Hallett accordingly entered a _nolle prosequi_ in all the other
cases, and the whole affair was quashed.[3]
[Footnote 3: See Law Reporter for June, 1855.]
DEFENCE.
MAY IT PLEASE THE COURT:
GENTLEMEN OF THE JURY.--It is no trifling matter which comes before
you this day. You may hereafter decide on millions of money, and on
the lives of your fellow men; but it is not likely that a question of
this magnitude will ever twice be brought before the same jurymen.
Opportunities to extend a far-reaching and ghastly wickedness, or to
do great service for mankind, come but seldom in any man's life. Your
verdict concerns all the people of the United States; its influence
will reach to ages far remote, blessing or cursing whole generations
not yet born. The affair is national in its width of reach,--its
consequences of immense duration.
In addressing you, Gentlemen, my language will be more didactic than
rhetorical, more like a lecture, less like a speech; for I am not a
lawyer but a minister, and do not aim to carry a Measure, which with
you will go of its own accord, so much as to set forth a Principle
that will make such prosecutions as impossible hereafter, as a
conviction now is to-day.
Gentlemen, I address you provisionally, as Representatives of the
People. To them, my words are ultimately addressed,--to the People of
the Free States of America. I must examine many things minutely, not
often touched upon in courts like this. For mine is a Political Trial;
I shall treat it accordingly. I am charged with no immoral act--with
none even of selfish ambition. It is not pretended that I have done a
deed, or spoken a word, in the heat of passion, or vengeance, or with
calculated covetousness, to bring money, office, or honor, to myself
or any friend. I am not suspected of wishing to do harm to man or
woman; or with disturbing any man's natural rights. Nay, I am not even
charged with such an offence. The Attorney and the two Judges are of
one heart and mind in this prosecution; Mr. Hallett's "Indictment" is
only the beast of burthen to carry to its own place Mr. Curtis's
"Charge to the Grand-Jury," fit passenger for fitting carriage! The
same tree bore the Judge's blossom in June, and the Attorney's fruit
in October,--both reeking out the effluvia of the same substance. But
neither Attorney nor Judge dares accuse me of ill-will which would
harm another man, or of selfishness that seeks my own private
advantage. No, Gentlemen of the Jury, I am on trial for my love of
Justice; for my respect to the natural Rights of Man; for speaking a
word in behalf of what the Declaration of Independence calls the
"self-evident" Truth,--that all men have a natural, equal, and
unalienable Right to Life, Liberty, and the pursuit of Happiness. I am
charged with words against what John Wesley named, the "Sum of all
Villanies," against a national crime so great, that it made
freethinking Mr. Jefferson, with all his "French Infidelity,"
"tremble" when he remembered "that God is just." I am on trial for my
manly virtue,--a Minister of the Christian Religion on trial for
keeping the Golden Rule! It is alleged that I have spoken in Boston
against kidnapping in Boston; that in my own pulpit, as a minister, I
have denounced Boston men for stealing my own parishioners; that as a
man, in Faneuil Hall, the spirit of James Otis, of John Hancock, and
three Adams's about me, with a word I "obstructed" the Marshal of
Boston and a Boston Judge of Probate, in their confederated attempts
to enslave a Boston man. When the Government of the United States has
turned kidnapper, I am charged with the "misdemeanor" of appealing
from the Atheism of purchased officials to the Conscience of the
People; and with rousing up Christians to keep the golden rule, when
the Rulers declared Religion had nothing to do with politics and there
was no Law of God above the fugitive slave bill!
Such are the acts charged. Gentlemen of the Jury, you are summoned
here to declare them a Crime, and then to punish me for this
"offence!" You are the Axe which the Government grasps with red hand
to cleave my head asunder. It is a trial where Franklin Pierce,
transiently President of the United States, and his official
coadjutors,--Mr. Caleb Cushing, Mr. Benj. R. Curtis, and Mr. Benj. F.
Hallett,--are on one side, and the People of the United States on the
other. As a Measure, your decision may send me to jail for twelve
months; may also fine me three hundred dollars. To me personally it is
of very small consequence what your verdict shall be. The fine is
nothing; the imprisonment for twelve months--Gentlemen, I laugh at it!
Nay, were it death, I should smile at the official gibbet. A verdict
of guilty would affix no stain to my reputation. I am sure to come out
of this trial with honor--it is the Court that is sure to suffer
loss--at least shame. I do not mean the Court will ever feel remorse,
or even shame, for this conduct; I am no young man now, I know these
men,--but the People are sure to burn the brand of shame deep into
this tribunal. The blow of that axe, if not parried, will do me no
harm.
But it is not I, merely, now put to trial. Nay, it is the unalienable
Rights of Humanity, it is truths self-evident. For on the back of that
compliant Measure, unseen, there rides a Principle. The verdict
expected of you condemns liberal institutions: all Religion but
priestcraft--the abnegation of religion itself; all Rights but that to
bondage--the denial of all rights. The word which fines me, puts your
own purse in the hands of your worst enemies; the many-warded key
which shuts me in jail, locks your lips forever--your children's lips
forever. No complaint against oppression hereafter! Kidnapping will go
on in silence, but at noonday, not a minister stirring. Meeting-houses
will be shut; all court houses have a loaded cannon at their door,
chains all round them, be stuffed with foreign soldiers inside, while
commissioners swear away the life, the liberty, and even the Estate of
the subjected "citizens." All Probate Judges will belong to the family
of man-stealers. Faneuil Hall will be shut, or open only for a "Union
Meeting," where the ruler calls together his menials to indorse some
new act of injustice,--only creatures of the Government, men like the
marshal's guard last June, allowed to speak words paid for by the
People's coward sweat and miserable blood. The blow which smites my
head will also cleave you asunder from crown to groin.
Your verdict is to vindicate Religion with Freedom of Speech, and
condemn the stealing of men; or else to confirm Kidnapping and condemn
Religion with Freedom of Speech. You are to choose whether you will
have such men as Wendell Phillips for your advisers, or such as
Benjamin F. Hallett and Benjamin R. Curtis for your masters, with the
marshal's guard, for their appropriate servants. Do you think I doubt
how you will choose?
Already a power of iniquity clutches at your children's throat; stabs
at their life--at their soul's life. I stand between the living tyrant
and his living victim; aye, betwixt him and expected victims not yet
born,--your children, not mine. I have none to writhe under the
successful lash which tyrants now so subtly braid therewith, one day,
to scourge the flesh of well-descended men. I am to stand the champion
of human Rights for generations yet unborn. It is a sad distinction!
Hard duties have before been laid on me,--none so obviously demanding
great powers as this. Whereto shall I look up for inspiring aid? Only
to Him who gave words to the slow tongue of Moses and touched with
fire Esaias' hesitating lips, and dawned into the soul of tent-makers
and fishermen with such great wakening light, as shining through them,
brought day to nations sitting in darkness, yet waiting for the
consolation. May such Truth and Justice enable me also, to speak a
testimony unto the Gentiles; He who chose the weak things, to bring to
nought the mighty, may not despise such humble services as mine.
* * * * *
Gentlemen of the Jury, my ministry deals chiefly with the Laws of God,
little with the statutes of men. My manhood has been mainly passed in
studying absolute, universal truth, teaching it to men, and applying
it to the various departments of life. I have little to do with courts
of law. Yet I am not now altogether a stranger to the circuit court
room of the United States, having been in it on five several occasions
before.
1. A Polish exile,--a man of famous family, ancient and patrician
before Christendom had laid eyes on America, once also of great
individual wealth, a man of high rank alike acquired and inherited,
once holding a high place at the court of the Czar,--became a fugitive
from Russian despotism, seeking an asylum here; he came to the circuit
court room to lecture on the Roman Law. I came to contribute my two
mites of money, and receive his wealth of learning.
2. The next time, I came at the summons of Thomas Sims. For a creature
of the slave-power had spontaneously seized that poor and friendless
boy and thrust him into a dungeon, hastening to make him a slave,--a
beast of burthen. He had been on his mock trial seven days, and had
never seen a Judge, only a commissioner, nor a Jury; no Court but a
solitary kidnapper. Some of his attendants had spoken of me as a
minister not heedless of the welfare and unalienable rights of a black
man fallen among a family of thieves. I went to the court house.
Outside it was belted with chains. In despotic Europe I had seen no
such spectacle, save once when the dull tyrant who oppressed Bavaria
with his licentious flesh, in 1844 put his capital in a brief state of
siege and chained the streets. The official servant of the kidnapper,
club in hand, a policeman of this city, goaded to his task by Mayor
Bigelow and Marshal Tukey,--men congenitally mingled in such
appropriate work,--bade me "Get under the chain." I pressed it down
and went over. The Judges of our own Supreme Court, _they went
under_,--had gone out and in, beneath the chain! How poetry mingles
with fact! The chain was a symbol, and until this day remaineth the
same chain, untaken away in the reading of the fugitive slave bill;
and when the law of Massachusetts is read, the chain is also upon the
neck of that court! Within the court house was full of armed men. I
found Mr. Sims in a private room, illegally, in defiance of
Massachusetts law, converted into a jail to hold men charged with no
crime. Ruffians mounted guard at the entrance, armed with swords,
fire-arms, and bludgeons. The door was locked and doubly barred
besides. Inside the watch was kept by a horrid looking fellow, without
a coat, a naked cutlass in his hand, and some twenty others, their
mouths nauseous with tobacco and reeking also with half-digested rum
paid for by the city. In such company, I gave what consolation
Religion could offer to the first man Boston ever kidnapped,--consolations
which took hold only of eternity, where the servant is free from his
master, for there the wicked cease from troubling. I could offer him
no comfort this side the grave.
3. I visited the United States court a third time. A poor young man
had been seized by the same talons which subsequently griped Sims in
their poison, deadly clutch. But that time, wickedness went off
hungry, defeated of its prey; "for the Lord delivered him out of their
hands," and Shadrach escaped from that Babylonish furnace, heated
seven times hotter than its wont: no smell of fire had passed on him.
But the rescue of Shadrach was telegraphed as "treason." The innocent
lightning flashed out the premeditated and legal lie,--"it is levying
war!" What offence it was in that Fourth One who walked with the
Hebrew children, "making their good confession," and sustained the old
Shadrach, Meshach, and Abednego, I know not. But the modern countrymen
of the African Shadrach, charged with some great crime, were haled
into this court to be punished for their humanity! I came to look on
these modern Angels of the Deliverance, to hear counsel of Mr. Dana,
then so wise and humane, and to listen to the masterly eloquence which
broke out from the great human heart of my friend, Mr. Hale, and
rolled like the Mississippi, in its width, its depth, its beauty, and
its continuous and unconquerable strength.
4. The fourth time, a poor man had been kidnapped, also at night, and
forced into the same illegal jail. He sat in the dock--an innocent
man, to be made into a beast. The metamorphosis had begun;--he was
already in chains and his human heart seemed dead in him; sixty
ruffians were about him, aiding in this drama, hired out of the
brothels and rum-shops for a few days, the lust of kidnapping serving
to vary the continual glut of those other and less brutal appetites of
unbridled flesh. While that "trial" lasted, whoredom had a Sabbath
day, and brawlers rested from their toil. Opposite sat the Boston
Judge of Probate, and the Boston District Attorney,--the Moses and
Elias of this inverted transfiguration; there sat the marshal, two
"gentlemen" from Virginia, claiming that a Boston man was their beast
of burthen, owing service and labor in Richmond; two "lawyers,"
"members of the Suffolk bar," pistols in their coats, came to support
the allegation and enforce the claim. Honorable men stood up to defend
him. There is one of them,--to defend me [Charles M. Ellis.] You know
very well the rest of that sad story,--the mock trial of Anthony Burns
lasted from May 25th till June 2d. I was here in all the acts of that
Tragedy. My own life was threatened; friend and foe gave me public or
anonymous warning. I sat between men who had newly sworn to kill me,
my garments touching theirs. The malaria of their rum and tobacco was
an offence in my face. I saw their weapons, and laughed as I looked
those drunken rowdies in their coward eye. They touch me!
5. The fifth time I came here at the summons of an officer of this
court,--very politely delivered, let me say it to his credit,--indicted
and arrested for a "misdemeanor." I gave bail and withdrew.
6. The sixth time,--Gentlemen,--it is the present, whereof I shall
erelong have much to say.
* * * * *