punish a man for his opinions on a matter of history which had no
connection with politics, or even with American Slavery. In July,
1834, Rev. George R. Noyes, a Unitarian Minister at Petersham, a
retired scholar, a blameless man of fine abilities and very large
attainments in theological learning, wrote an elaborate article in the
Christian Examiner, the organ of the "Liberal Christians" in America,
in which he maintained that Jesus of Nazareth is not the Messiah
predicted in the Old Testament. "It is difficult," said this
accomplished Theologian, "to point out any predictions which have been
properly fulfilled in Jesus." Peter and Paul found the death and
resurrection of Jesus in the 16th Psalm, but they "were in an error,"
which should not surprise us, for "the Evangelists and Apostles never
claimed to be _inspired reasoners and interpreters_;" "they partook of
the errors and prejudices of their age in things in which Christ had
not instructed them." "The commonly received doctrine of the
inspiration of all the writings included in the Bible, is a millstone
hung round its neck [the neck of Christianity], sufficient to sink
it."
The article was written with remarkable candor and moderation, and
indicated a devout and holy purpose in the author. The doctrines were
by no means new. But Hon. James T. Austin, was then Attorney-General
of the State; his attention being called to it by an anonymous writer
in a newspaper, he attacked Mr. Noyes's article, thus giving vent to
his opinion thereon: "He considers its learning very ill bestowed, its
researches worse than useless, and that its tendency is to strike down
one of the pillars on which the fabric of Christianity is supported."
"Its tendency is to shock the pious,--confound the unlearned,--overwhelm
those who are but moderately versed in the recondite investigations of
theology, and above all to open an arsenal whence all the small wits
of the infidel army may supply themselves with arms. Its greater evil
is to disarm the power of public opinion." "It certainly disarms to a
great degree the power of the law."[165]
[Footnote 165: 16 Examiner, 321; 17 ibid. 127; Boston Atlas, July 8th
and 9th, 1834.]
Gentlemen, suppose it had not been necessary to submit the matter to a
Jury, what would the right of freedom of conscience be worth in the
hands of such a man, "dressed in a little brief authority?" It was
said at the time that the author was actually presented to the
Grand-Jury, and an attempt made to procure an indictment for
Blasphemy, or Misdemeanor. I know not how true the rumor was. The
threat of prosecution came to nought, and Dr. Noyes, one of the most
scholarly men in America, is now Professor of Theology in the Divinity
School at Cambridge, and an honor to the liberal sect which maintains
him there.
* * * * *
Gentlemen, when laws are unjustly severe, denouncing a punishment
highly excessive, the juries refuse to convict. Examples of this are
very common in trials for capital offences, now that the conscience of
moral men has become so justly hostile to the judicial shedding of
blood. There is no doubt with the Jurors as to the Fact, none as to
the Law; but they say it is unjust to apply such a law to such a fact
and hang a man. The Jury exercising their moral discretion, spite of
the judge, and spite of the special statute or custom, are yet
faithful to their official obligation and manly duty, and serve
Justice, the ultimate End and Purpose of Law, whereto the statutes and
customs are only provisional means. Foolish judges accuse such juries
of "Perjury;" but it is clear enough, Gentlemen, where the falseness
is.
"Do you take notice of that juryman dressed in blue?" said one of the
judges at the old Bailey to Judge Nares. "Yes." "Well, then, take my
word for it, there will not be a single conviction to-day for any
capital offence." So it turned out. The "gentleman in blue" thought it
unjust and wicked, contrary to the ultimate Purpose of law, to hang
men, and he was faithful to his juror's oath in refusing to convict.
Of course he did not doubt of the Fact, or the Law, only of the
Justice of its Application. One day there will be a good many
"gentlemen in blue."
To prevent this moral independence of the jury from defeating the
immoral aim of the government, or of the judges, or the
legislature--the court questions the jurors beforehand, and drives off
from the panel all who think the statute unfit for such application.
Gentlemen, that is a piece of wicked tyranny. It would be as unfair to
exclude such men from the legislature, or from the polls, as from the
jury box. In such cases the defendant is not tried by his "country,"
but by a jury packed for the purpose of convicting him, spite of the
moral feelings of the people.
Sometimes the statute is so framed that the jurors must by their
verdict tell an apparent falsehood, or commit a great injustice. When
it was a capital offence in England to steal forty shillings, and
evidence made it plain that the accused had actually stolen eight or
ten times that value, you all know how often the jurors brought in a
verdict of "_stealing thirty-nine shillings_."[166] They preferred to
tell what seemed to be a lie, rather than kill a man for stealing
fifteen or twenty dollars. The verdict of NOT GUILTY would have been
perfectly just in form as in substance, and conformable to their
official oath.
[Footnote 166: See several cases of this kind in Sullivan on Abolition
of Punishment of Death, (N.Y. 1841), 73. Rantoul's Works, 459.]
Gentlemen, tyrannical rulers, and their servants, despotic and corrupt
judges, have sought to frighten the juries from the exercise of all
discretion--either moral or intellectual. To that end they threaten
them before the verdict, and punish them when they decide contrary to
the wish of the tyrant. To make the jurors agree in a unanimous
verdict, they were kept without "fire or water or food or bed" until
they came to a conclusion; if eleven were of one mind and the twelfth
not convinced, the refractory juror was fined or put in jail.[167] If
the verdict, when unanimously given, did not satisfy the judge or his
master, the jurors were often punished.[168] I have already shown you
how the juries were treated--with fine and imprisonment--who acquitted
Throckmorton and Penn.[169] When John Lilburne was tried for his life
in 1653, he censured the authorities which prosecuted him and appealed
to the "honorable Jury, the Keepers of the Liberties of England:" they
found him Not Guilty, and were themselves brought before the council
of State for punishment. "Thomas Greene of Snow-hill, tallow chandler,
Foreman of the Jury, being asked what the grounds and reasons were
that moved him to find ... Lilburne not guilty, ... saith '_that he
did discharge his conscience in what he then did, and that he will
give no further answer to any questions which shall be asked him upon
that matter_.'"[170] This was in the time of Cromwell; but as the
People were indignant at his tyrannical conduct in that matter, and
his insolent attempt to punish the jurors, they escaped without fine
or imprisonment. Indeed more than a hundred and twenty-five years
before, Thomas Smith had declared "such doings to be very violent,
tyrannical, and contrary to the liberty and customs of the realm of
England." Sir Matthew Hale said at a later day, "It would be a most
unhappy case for the judge himself, if the prisoner's fate depended
upon his directions; unhappy also for the prisoner; for if the judge's
opinion must rule the verdict, the trial by jury would be
useless."[171] Judge Kelyng was particularly hostile to the jury,
throwing aside "all regard to moderation and decency." He compelled
the grand-jury of Somersetshire to find an indictment against their
consciences, reproaching Sir Hugh Wyndham, the foreman, as the "Head
of a Faction." He told the jury, "You are all my servants, and I will
make the best in England stoop!" He said it was a "misdemeanor" for
them to discriminate between murder and manslaughter; that was for the
court to determine. But, Gentlemen, it does not appear that he had his
brother-in-law on that grand-jury. Several persons were indicted for
"attending a conventicle;" the jury acquitted them contrary to his
wish, and he fined them $334 apiece, and put them in jail till it was
paid. On another occasion, this servile creature of Charles II. fined
and imprisoned all the jurors because they convicted of _manslaughter_
a man whom he wanted to hang. But for this conduct he was accused in
the House of Commons, and brought to answer for it at their bar.[172]
[Footnote 167: Forsyth, 241, 243.]
[Footnote 168: Thomas Smith, Commonwealth, (London, 1589,) b. iii. c.
1. Hargrave, in 6 St. Tr. 1019.]
[Footnote 169: See above, p. 95. 1 St. Tr. 901; 6 St. Tr. 967, 969,
999; 21 St. Tr. 925.]
[Footnote 170: 1 St. Tr. 445.]
[Footnote 171: 6 St. Tr. 967, note; Bushell's Case, Ibid. 999, and
Hargrave's note, 1013.]
[Footnote 172: 2 Campbell, Justices, 405; 6 St. Tr. 910; Kelyng, 50; 3
Hallam, 6, note; Commons Journals, 16 Oct. 1667.]
In 1680 Chief Justice Scroggs was brought up before the House of
Commons for discharging "a refractory grand-jury"--such an one as was
discharged in Boston last July: Sir Francis Winnington said, "If the
judges instead of acting by law shall be acted by their own ambition,
and endeavor to get promotion rather by worshipping the rising sun
than doing justice, this nation will soon be reduced to a miserable
condition." "As faults committed by judges are of more dangerous
consequence than others to the public, so there do not want precedents
of severer chastisements for them than for others."[173]
[Footnote 173: 4 Parl. Hist. 1224.]
But spite of the continual attempt to destroy the value of the trial
by jury, and take from the People their ancient, sevenfold shield, the
progress of liberty is perpetual. Now and then there arose lawyers and
judges like Sir Matthew Hale, Holt, Vaughan, Somers, Camden, and
Erskine, who reached out a helping hand. Nay, politicians came up to
its defence. But the great power which has sustained and developed it
is the sturdy and unconquerable Love of individual Liberty which is
one of the most marked characteristics of the Anglo-Saxon, whether
Briton or American. The Common People of England sent Juries, as well
as regiments of Ironsides, to do battle for the Right. Gentlemen, let
us devoutly thank God for this Safeguard of Freedom, and take heed
that it suffers no detriment in our day, but serves always the Higher
Law of the Infinite God.
Now, Gentlemen of the Jury, I come to the end.
IV. OF THE CIRCUMSTANCES OF THIS SPECIAL CASE, UNITED STATES VERSUS
THEODORE PARKER.
Here, Gentlemen, I shall speak of three things.
(I.) Of the Fugitive Slave Bill.
At the close of the Revolution there was a contradiction in the
national consciousness: the People were divided between the Idea of
Freedom and the Idea of Slavery. There consequently ensued a struggle
between the two elements. This has continued ever since the Treaty of
Peace in 1783.
Twice the Idea of Freedom has won an important victory: in 1787
Slavery was prohibited in the North-West Territory; in 1808 the
African Slave Trade was abolished. Gentlemen, this is all that has
been done for seventy-two years; the last triumph of American Freedom
over American Slavery was forty-seven years ago!
But the victories of Slavery have been manifold: in 1787 Slavery came
into the Constitution,--it was left in the individual States as a part
of their "Republican form of government;" the slaves were counted
fractions of men, without the personal rights of integral humanity,
and so to be represented by their masters; and the rendition of
fugitive slaves was provided for. In 1792 out of old territory a new
Slave State was made and Kentucky came into the Union. Tennessee
followed in 1796, Mississippi in 1817, Alabama in 1819, and thus four
Slave States were newly made out of soil which the Declaration of
Independence covered with ideal freedom. In 1793 the Federal
government took Slavery under its special patronage and passed the
first fugitive slave bill for the capture of such as should escape
from bondage in one State, and flee to another. In 1803 Louisiana was
purchased and Slavery left in that vast territory; thus the first
expansion of our borders was an extension of bondage,--out of that
soil three great States, Louisiana, Missouri, Arkansas, have since
been made, all despotic, with more than half a million of Americans
fettered there to-day. Florida was purchased as slave soil, and in
1845 made a State with perpetual Slavery written in its Constitution.
In 1845 Texas was annexed and Slavery extended over nearly four
hundred thousand square miles of once free soil; in 1848 Slavery was
spread over California, Utah, and New Mexico. Here were seven great
victories of Slavery over Freedom.
At first it seemed doubtful which was master in the federal councils;
but in 1820, in a great battle--the Missouri Compromise--Slavery
triumphed, and has ever since been master. In 1845 Texas was annexed,
and Slavery became the open, acknowledged, and most insolent master.
The rich, intelligent, and submissive North only registers the decrees
of the poor, the ignorant, but the controlling South; accepts for
Officers such as the master appoints, for laws what the Slave-driver
commands. The Slave-Power became predominant in American politics,
business, literature, and "Religion."
Gentlemen of the Jury, do you doubt what I say? Look at this Honorable
Court,--at its Judges, its Attorney, at its Marshal, and its Marshal's
Guard: they all hold their offices by petty serjeantry of menial
service rendered to the Slave-Power. It would be an insult to any one
of this august fraternity to hint that he had the faintest respect
for the great Principles of American Liberty, or any love of justice
for all men. I shall not be guilty of that "contempt of court."
Gentlemen, I had expected that this Court would be solemnly opened
with prayer. I knew whom the Slave-Power would select as its priest to
"intercede with Heaven." I expected to hear the Rev. Nehemiah Adams,
D.D., ask the God he worships and serves to take "a South-side view of
American Slavery" in general, and in special of this prosecution of a
minister of the Christian Religion for attempting to keep the Golden
Rule. Should the Court hereafter indulge its public proclivity to
prayer, that eminent divine will doubtless be its advocate--fit
mediator for a Court which knows no Higher Law.
Well, Gentlemen, that sevenfold triumph was not enough. Slavery will
never be contented so long as there is an inch of free soil in the
United States! New victories must be attempted. Mr. Toombs has
declared to this noble Advocate of Justice and Defender of Humanity,
[John P. Hale] who renews the virtuous glories of his illustrious
namesake, Sir Matthew Hale, that, "Before long the master will sit
down with his slaves at the foot of Bunker Hill Monument." But one
thing disturbed our masters at the South--the concubine runs away from
her lusty lord, the mulatto slave child from her white father; I have
had the "best blood of Virginia," fugitive children of her "first
families" in my own house, and have given many a dollar to help the
sons and daughters of "Southern Democrats" enjoy a taste of Northern
Democracy. The slaves would run away. The law of 1793 was not adequate
to keep or catch these African Christians who heeded not the Southern
command, "Slaves, obey your masters." The Decision of the Supreme
Court in the Prigg case,[174] showed the disposition of the Federal
Government, and took out of the hands of the individual States the
defence of their own citizens. Still the slaves would run away. In
1849 there were more than five hundred fugitives from Southern
Democracy in Boston--and their masters could not catch them. What a
misfortune! Boston retained $200,000 of human Property of the
Christian and chivalric South! Surely the Union was "in danger."
[Footnote 174: 16 Peters, 616.]
In 1850 came the fugitive slave bill. When first concocted, its
author,--a restless politician, a man of small mind and mean
character, with "Plantation manners,"--thought it was "too bad to
pass." He designed it not for an actual law, but an insult to the
North so aggravating that she must resist the outrage, and then there
would be an opportunity for some excitement and agitation at the
South--and perhaps some "nullification" in South Carolina and
Virginia; and in that general fermentation who knows what scum would
be thrown up! Even Mr. Clay "never expected the law would be
enforced." "No Northern _gentleman_," said he, "will ever help return
a fugitive slave." It seemed impossible for the bill to pass.
But at that time Massachusetts had in the Senate of the nation a
disappointed politician, a man of great understanding, of most mighty
powers of speech,--
"Created hugest that swim the ocean stream,"--
and what more than all else contributed to his success in life, the
most magnificent and commanding personal appearance. At that time--his
ambition nothing abated by the many years which make men
venerable,--he was a bankrupt in money, a bankrupt in reputation, and
a bankrupt in morals--I speak only of his public morals, not his
private,--a bankrupt in political character, pensioned by the Money
Power of the North. Thrice disappointed, he was at that time gaming
for the Presidency. When the South laid down the fugitive slave bill,
on the national Faro-table, Mr. Webster bet his all upon that card. He
staked his mind--and it was one of vast compass; his eloquence, which
could shake the continent; his position, the senatorial influence of
Massachusetts; his wide reputation, which rung with many a noble word
for justice and the Rights of man; he staked his conscience and his
life. Gentlemen, you know the rest,--the card won, the South took the
_trick_, and Webster lost all he could lose,--his conscience, his
position, his reputation; not his wide-compassing mind, not his
earth-shaking eloquence. Finally he lost his--life. Peace to his
mighty shade. God be merciful to him that showed no mercy. The warning
of his fall is worth more than the guidance of his success. Let us
forgive; it were wicked to forget. For fifty years no American has had
such opportunity to serve his country in an hour of need. Never has an
American so signally betrayed the trust--not once since Benedict
Arnold turned a less ignoble traitor!
Gentlemen, you know the speech of the 7th of March. You know it too
well. He proposed to support the fugitive slave bill "with all its
provisions, to the fullest extent." At that time this bill of
abominations was worse than even now; for then it left the liberty of
a man to the discretion not only of any judge or commissioner of any
Federal court, but to any clerk or marshal thereof, nay, to any
collector of the customs and every one of the seventeen thousand
postmasters in the United States! It provided that an affidavit made
before any officer empowered, by the United States or any State, to
administer oaths, should be taken as conclusive evidence to prove a
man a slave! So John Smith of some unknown town in Texas, might make
affidavit before John Jones, a justice of peace in the same place,
that Lewis Hayden, or Wendell Phillips, or his Honor Judge Curtis, was
his (Smith's) slave, and had escaped to Boston: might bring hither
John Brown, a Postmaster from Texas, or find some collector of the
customs or minion of the court in Massachusetts, seize his victim, and
swear away his liberty; and any man might be at once consigned to
eternal bondage! All that the bill provided for,--and authorized the
kidnapper to employ as many persons as he might think proper to
accomplish his purpose by force, at the expense of the United States!
All this Mr. Webster volunteered to support "to the fullest extent."
The bill was amended, here bettered, there worsened, and came to the
final vote. Gentlemen, the Money Power of the North joined the Slave
Power of the South to kidnap men in America after 1850, as it had
kidnapped them in Africa before 1808. Out of fifty Senators only
twelve said, No; while in the House 109 voted Yea. The Hon. Samuel A.
Eliot gave the vote of Beacon and State Streets for kidnapping men on
the soil of Boston. The one Massachusetts vote for man-stealing must
come from the town which once bore a Franklin and an Adams in her
bosom; yes, from under the eaves of John Hancock's house! That one
vote was not disgrace enough; his successor [Hon. William Appleton]
must take a needless delight in reaffirming the infamy. When the bill
passed, Gentlemen, you remember how Mr. Webster rejoiced:--
"Now is the winter of our discontent
Made glorious summer,"
was his public outcry on the housetop! And Boston fired a hundred guns
of joy! Do you know _who_ fired them? Ask Mr. Attorney Hallett; ask
Mr. Justice Curtis. They can "instruct the jury."
Gentlemen, you know the operation of the fugitive slave bill. It
subverts the Purposes of the Constitution, it destroys Justice,
disturbs domestic Tranquillity, hinders the common Defence and the
general Welfare, and annihilates the Blessings of Liberty. It defies
the first Principles of the Declaration of Independence,--think of the
fugitive slave bill as an appendix to that document! It violates the
Idea of Democracy. It contradicts the very substance of the Christian
Religion--the two great commandments of Love to God, and Love to man,
whereon "hang all the Law and the Prophets." It makes natural humanity
a crime; it subjects all the Christian virtues to fine and
imprisonment. It is a _lettre de cachet_ against Philanthropy.
Gentlemen of the Jury, you know the fugitive slave bill is
unconstitutional. I need not argue the matter; it is too plain to need
proof. See how it opposes Justice, the ultimate purpose of human law;
nay, the declared objects of the Constitution itself! But yet its
unconstitutionality has been most abundantly shown by our own
fellow-citizens. I need not go out of Massachusetts for defenders of
Justice and Law. You remember the Speeches of Mr. Phillips, Mr.
Sewall, Mr. Rantoul, Mr. Sumner, Mr. Mann, the arguments of Mr.
Hildreth. The judges before you by nature are able-minded men, both of
them; both also learned as lawyers and otherwise well educated,--I
love to honor their natural powers, and their acquired learning; would
I could offer higher praise. Now, I will not insult their manly
understanding with the supposition that either of them ever thought
the fugitive slave bill constitutional. No, Gentlemen, it is not
possible that in the _personal_ opinion of Mr. Sprague, or even Mr.
Curtis, this bill can be held for a constitutional law. But the Court
has its official dress: part of it is of silk--or supposed to be,--the
gown which decorates the outward figure of the man who wears its ample
folds; it is made after a prescribed pattern. But part of it also is
made of _opinion_ which hides the ability and learning of the
honorable Court. The constitutionality of the fugitive slave bill is a
part of the judge's official dress: accordingly, as no federal judge
sits without his "silk gown," so none appears without his "opinion"
that the fugitive slave bill is constitutional. But if the court
should solemnly declare that such was its _personal opinion_--Gentlemen
of the Jury, I,--I--should not believe it--any more than if they
declared the gown of silk was the natural judicial covering, the
actual "true skin" of the judges. No, Gentlemen, these judges are not
monsters, not naturally idiotic in their Conscience. This opinion is
their official robe, a supplementary cuticle, an artificial epidermis,
woven from without, to be thrown off one day, when it shall serve
their turn, by political desquamation. Let them wear it; "they have
their reward." But you and I, Gentlemen, let us thank God we are not
officially barked about with such a leprous elephantiasis as that. You
are to judge of its constitutionality for yourselves, not to take the
_purchased, official opinion_ of the judge as veil for your
Conscience; let it hide the judges' if they like.