for the Presidency by the vote of the people. But the American
Executive is twofold,--part Presidential, part Senatorial. Sometimes
these two Executives are concordant, sometimes discordant. The
Senatorial Executive has always carried the day against the less
permanent Presidential power, except in the solitary case where
General Jackson's unconquerable will and matchless popularity enabled
him to master the senate itself, who "registered" his decrees, or
"expunged" their own censure, just as the iron ruler gave orders.
Now by means of the control which the Northern Cities have over the
Northern States, and such Commercial Men over those cities, it has
come to pass that not only the Presidential, but also the Senatorial
Executive, has long been hostile to the Idea of Freedom.
Gentlemen of the Jury, the direct consequence is obvious,--the Party
of Slavery has long been the conqueror in the field of Federal
politics. In the numerous and great conflicts between the two, Freedom
has prevailed against Slavery only twice since the close of the
Revolutionary War,--in prohibiting involuntary servitude in the
North-west Territory in 1787, and in the abolition of the African
Slave-trade in 1808. Her last triumph was forty-seven years ago,--nay,
even that victory was really achieved twenty years before at the
adoption of the constitution. In this warfare we have not gained a
battle for freedom since 1788!
For a time it seemed doubtful which would triumph, though Slavery
gained Kentucky and Tennessee, and Louisiana was purchased as slave
soil in 1803. But in 1820 slavery became the obvious and acknowledged
master in the Federal Territory, marched victorious over the
Mississippi, planted itself in Missouri, and has subsequently taken
possession of Mississippi, Alabama and Arkansas, all slave States; has
purchased Florida; "reannexed" Texas; conquered Utah, New Mexico and
California, all slave soil; and from Freedom and the North has just
now reconquered Kansas and Nebraska. Ever since the Missouri
Compromise in 1820 Slavery has been really the master, obviously so
since the annexation of Texas in 1845. The slave-power appoints all
the great national officers, executive, diplomatic, judicial, naval
and military,--it controls the legislative departments. Look at this
Honorable Court, Gentlemen, and recognize its power!
The idea of Slavery must be carried out to its logical consequence, so
our masters now meditate two series of Measures, both necessary to the
development of Slavery as a Principle.
(I.) African Slavery is to be declared a Federal Institution, national
and sectional, and so extended into all the Territories of the United
States. New soil is to be bought or plundered from Hayti, Spain,
Mexico, South America "and the rest of mankind," that slavery may be
planted there; that is the purpose of all the Official Fillibustering
of the Government, and the Extra-official Fillibustering which it
starts, or allows; Quitman "Enterprises," Kinney "Expeditions," Black
Warrior and El Dorado "difficulties," all point to this; the "Ostend
Conference" is a step in that direction; Slavery is to be restored to
the so called "Free States," reestablished in all the North. That is
the design of the fugitive slave bill in 1850, and the kidnapping of
northern men consequent thereon for the last five years; of President
Pierce's inaugural declarations in behalf of slavery in 1853; of Mr.
Toombs's threat in 1854, that "soon the master with his slaves will
sit down at the foot of Bunker Hill Monument;" of Mr. Toucey's Bill in
1855, providing that when a kidnapper violates the local laws of any
State, he shall be tried by the fugitive slave bill court. Then the
African Slave-trade is to be restored by federal enactments, or
judicial decisions of the "Supreme Court of the United States." All
these steps belong to Measure number One. The Supreme Court is ready
to execute the commands of its lord. Soon you will see more
"decisions" adverse to humanity.
(II.) The next movement is progressively to weaken and ultimately to
destroy the Democratic Institutions of the North,--yes, also of the
South. This design is indicated and sustained by some of the measures
already mentioned as connected with the first purpose.
To this point tend the words of President Pierce addressed to the
soldiers of 1812 on the 8th of January 1855, in which he speaks of
such as "disseminate political heresies," that is, the Idea of
Freedom; "revile the government,"--expose its hostility against the
unalienable Rights of man; "deride our institutions,"--to wit, the
patriarchal institution of Slavery; "sow political dissensions,"--advise
men not to vote for corrupt tools of the government; "set at defiance
the laws of the land,"--meaning the fugitive slave bill which commands
kidnapping.
There belong the attempts of the Federal courts to enlarge their
jurisdiction at the expense of State Rights; the cry, "Union first and
Liberty afterwards;" the shout "No higher law," "Religion nothing to
do with Politics."
Thence come the attacks made on the freedom of the pulpit, of the
press, and all freedom of speech. The Individual State which preserves
freedom must be put down,--the individual person who protests against
it must be silenced. No man must hold a federal office,--executive,
diplomatic, judicial, or "ministerial,"--unless he has so far
conquered his "prejudices" in favor of the natural Rights of man that
he is ready to enslave a brother with alacrity. All these steps belong
to Measure number Two.
This latter Measure advances to its execution, realizing the Idea of
Slavery, with subtle steps, yet creeps on rapid-moving feet. See how
it has gained ground latterly. Obviously the fugitive slave bill
struck only at the natural Rights of Colored men--as valuable as those
of white men, but the colored are few and the white many,--the
experiment must be made on the feebler body. But this despotism cannot
enslave a black girl without thereby putting in peril the liberty of
every white man. At first our masters only asked of Boston a little
piece of chain, but just long enough to shackle the virtuous hands of
Ellen Craft, a wife and mother, whom her Georgian "owner" wished to
sell as a harlot at New Orleans! A meeting was summoned at Faneuil
Hall, and Boston answered, "Yes, here is the chain. Let the
woman-hunter capture Ellen Craft, make her a Prostitute at New
Orleans. She is a virtuous wife and mother,--but no matter. Slavery is
king and commands it. Let the 'owner' have his chain."
There is no escaping the consequence of a first Principle. Soon that
little chain lengthened itself out, and coiled itself all round the
court house, and how greedily your judges stooped to go under! This
Anaconda of the Dismal Swamp wound its constricting twists about the
neck of all your courts, and the Judges turned black in the face, and
when questioned of law, they could not pronounce "Habeas Corpus,"
"Trial by Jury," nor utter a syllable for the Bible or the
Massachusetts Constitution, but only wheeze and gurgle and squeak and
gibber out their defences of Slavery! No, Boston could not bewray a
woman wandering towards freedom, without chaining the court house and
its judges, putting the town in a state of siege,--insolent soldiers
striking at the people's neck. Now the attempt is making by this
Honorable Court to put the same chain round Faneuil Hall, so that the
old Cradle of Liberty shall no more rock to manhood the noble sons of
freedom, but only serve as a nest that the spawn of Bondage may
hibernate therein.
I am on trial because I hate Slavery, because I love freedom for the
black man, for the white man, and for all the human Race. I am not
arraigned because I have violated the statute on which the indictment
is framed--no child could think it--but because I am an advocate of
Freedom, because my Word, my Thoughts, my Feelings, my Actions, nay,
all my Life, my very Existence itself, are a protest against Slavery.
Despotism cannot happily advance unless I am silenced. It is very
clear logic which indicts me. Private personal malice, deep, long
cherished, rancorous, has doubtless jagged and notched and poisoned
too the public sword which smites at my neck. Still it is the public
sword of Slavery which is wielded against me. Against ME? Against YOU
quite as much--against your children. For as Boston could not venture
to kidnap a negro woman, without bringing down that avalanche of
consequences connected with the Principle of Slavery,--without chains
on her Judges, falsehood in her officers, blood in her courts, and
drunken soldiers in her streets, and hypocrisy in her man-hunting
ministers,--no more can she put me to silence alone. The thread which
is to sew my lips together, will make your mouths but a silent and
ugly seam in your faces. Slavery is Plaintiff in this case; Freedom
Defendant. Before you as Judges, I plead your own cause--for you as
defendant. I will not insult you by the belief or the fear that you
can do other than right, in a matter where the law is so plain, and
the Justice clear as noonday light. But should you decide as the
wicked wish, as the court longs to instruct you, you doom your mouths
to silence; you bow your manly faces to the ground, destine your
memories to shame, and your children to bondage worse than negro
slavery.
* * * * *
Such, Gentlemen of the Jury, is the state of affairs leading to this
Prosecution--such the past, present, and prospective Encroachments of
a Power hostile to Democratic Institutions and the unalienable Rights
they were designed to protect. Such also are the two Measures now in
contemplation,--the Extension of African Bondage, and the Destruction
of American Freedom.
II. LOOK NEXT AT THE MODE OF OPERATION HITHERTO PURSUED BY THIS
ENCROACHING POWER, IN OTHER TIMES AND NATIONS, AND IN OUR OWN,
SYSTEMATIC CORRUPTION OF THE JUDICIARY.
Here I shall show the process by which that Principle of Slavery
becomes a Measure of political ruin to the People.
In substance Despotism is always the same, Spanish or Carolinian, but
the form varies to suit the ethnologic nature and historical customs
of different people. I shall mention two forms--one to illustrate, the
other to warn.
(I.) The open Assumption of Power by military violence. This method is
followed in countries where love of Individual Liberty is not much
developed in the consciousness of the people, and where democratic
institutions are not fixed facts in their history; where the nation is
not accustomed to local self-government, but wonted to a strong
central power directed by a single will. This form prevails in Russia,
Turkey, and among all the Romanic tribes in Europe, and their
descendants in America. Military usurpation, military rule is
indigenous in France,--where two Napoleons succeed thereby,--in Italy,
in Spain, and most eminently in Spanish America. But no people of the
Teutonic family for any length of time ever tolerated a usurping
soldier at the head of affairs, or submitted to martial arbitrary
rule, or military violence in the chief magistrate. It is against our
habit and disposition.
Neither Cromwell nor William of Orange could do with the Anglo-Saxon
what it would have been impossible not to do with Spaniards or
Italians. Even warlike Swiss--Teutonic tribes--will have a government
with due process of law, not by the abrupt violence of the soldier.
Washington could not have established a military monarchy in America
had he been so wickedly disposed. Even William the Conqueror must rule
the Saxons by Saxon law.
(II.) The corruption of the acknowledged safeguards of public
security. This is attempted in nations who have a well-known love of
individual liberty, and institutional defences thereof, the habit of
Local Self-government by Democratic Law-making and Law-administering.
For example, this experiment has been repeatedly made in England. The
monarch seeking to destroy the liberty of the people, accomplishes
his violent measure by the forms of peaceful law, by getting the
judicial class of men on the side of despotism. Then all the
wickedness can be done in the name, with the forms, and by "due
process" of law, by regular officers thereof--done solemnly with the
assistance of slow and public deliberation.
Gentlemen of the Jury, this is a matter of such importance to the
People of America just now, that I must beg you to bear with me while
I explain this subtle operation. I will select examples from the
history of England which are easy to understand, because her blood is
kindred to our own, and the institutions of the two countries are
related as parent and child. And besides, her past history affords
alike warning and guidance in our present peril.
* * * * *
(I.) The first step in this process of political iniquity is, to
appoint men for judges and other officers of the court, who know no
law higher than the selfish will of the hand that feeds them, mere
creatures of the rest [Transcriber's Note: for 'rest' read
'government'; see Errata].
I will select instances of this from the reign of the Stuart kings and
one of their successors, from a period full of melancholy warning to
America.
I will begin with James I. (1603-1625), the first King of New England.
At his very accession he had high notions of his royal Prerogative,
and maintained that all the privileges of the House of Commons were
derived from his royal grant. "I am your King," said he, "I am placed
to govern you, and I shall [must] answer for your errors." It was
quite enough to answer for his own,--poor man. "Let me make the
Judges," said he, "and I care not who makes the laws."
Accordingly for judicial officers he appointed such men as would
execute his unlawful schemes for the destruction of public liberty. To
such considerations was Francis Bacon mainly indebted for his
elevation from one legal rank to another, until he reached the seat of
the Lord Chancellor. A man whom Villers declared, "of excellent parts,
but withal of a base and ungrateful temper, and an arrant knave, yet a
fit instrument for the purposes of the government." He did not receive
his appointment for that vast, hard-working genius which makes his
name the ornament of many an age, but only for his sycophantic
devotion to the royal will. Sir Edward Coke was promoted rapidly
enough, whilst wholly subservient to the despotic court, but
afterwards, though a miracle of legal knowledge, not equalled yet
perhaps, he must not be appointed Lord Chancellor on account of "his
occasional fits of independence." Chief Justice Ley was one of the
right stamp, but it was thought "his subserviency might prove more
valuable by retaining him to preside over the Court of King's Bench."
"For in making the highest judicial appointments the only question
was, what would suit the arbitrary schemes of governing the
country."[5] Hobart had resisted some illegal monopolies of the
all-powerful Buckingham, and he was "unfit for promotion."
[Footnote 5: 2 Campbell, 372, 374.]
James thought the Prerogative would be strengthened by the appointment
of clergymen of the national church, perhaps the only class of men not
then getting fired with love of liberty,--and made Williams, Bishop of
Lincoln, Lord Keeper, a "man of rash and insolent, though servile
temper, and of selfish, temporizing, and trimming political conduct,"
who at that time had never acted as "a judge except at the Waldegrave
Petty Sessions in making an order of bastardy or allowing a rate for
the Parish poor," and was "as ignorant of the questions coming before
him as the door-keepers of his court." But he was subservient, and had
pleased the King by preaching the courtly doctrine that "subjects hold
their liberties and their property at the will of the Sovereign whom
they are bound in every extremity passively to obey."[6] Men like
Fleming and other creatures of the throne, sanctioning the King's
abundant claim to absolute power, were sure of judicial distinction;
while it was only the force of public opinion which gave the humblest
place of honor to such able and well-studied lawyers as would respect
the constitutional Rights of the People and the just construction of
the laws, and at all hazards maintain their judicial independence.
Ecclesiastics who taught that the King "is above the laws by his
absolute power," and "may quash any law passed by Parliament," were
sure of rapid preferment. Thus Bancroft was promoted; thus Abbot was
pushed aside; and for his mean, tyrannical and subservient disposition
Rev. William Laud was continually promoted in expectation of the
services which, as Archbishop, he subsequently performed in the
overthrow of the Liberty of the People. But time would fail me to read
over the long dark list of men whose personal shame secured them
"official glory."
[Footnote 6: 2 Campbell, 368, 374; 3 Howell State Trials, 824.]
In his address to the Judges in the Star-Chamber in 1616 James gave
them this charge, "If there falls out a question which concerns any
Prerogative or mysterie of State, _deale not with it till you consult
with the King_ or his Council, or both; for they are Transcendent
Matters, and must not be slibberly carried with over rash
wilfullnesse." "And this I commend unto your special care, as some of
you of late have done very much, to _blunt the edge and vaine popular
humor of some lawyers at the Barre_, that think they are not eloquent
and bold-spirited enough, except they _meddle with the King's
Prerogative_." "_That which concerns the mysterie of the King's Power
is not lawful to be disputed._"[7] Gentlemen, that was worthy of some
judicial charges which you and I have heard.
[Footnote 7: Speache in the Starre-Chamber, London, 1616.]
* * * * *
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 full parliament, and who by flying
from their justice saved his life, was appointed to judge some of
those who should have been his Judges."[8] He declared in Parliament
that Milton, for services rendered to the cause of liberty while Latin
Secretary to Cromwell, "deserved hanging."[9]
[Footnote 8: Ludlow, quoted in 2 Campbell, 470.]
[Footnote 9: 4 Parl. Hist. 162.]
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's power of dispensing with the penal laws and tests made against
recusants, out of parliament."[14]
[Footnote 10: 3 Campbell, 394.]
[Footnote 11: 2 Campbell Chief Justices, 86.]
[Footnote 12: 3 Campbell, 473.]
[Footnote 13: 3 Hallam, 142.]
[Footnote 14: 8 St. Tr. 195, note.]
* * * * *
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.