But even in Massachusetts, within twenty years, an attempt was made to

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.

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 · 第 16 / 28 段