It seems to be in consequence of my connection with this case that I

am indicted; so you now approach the end of this long defence. I come

to the last part of it.

* * * * *

(III.) Of the Indictment against Theodore Parker.

I am indicted, gentlemen, for "resisting an officer" who was engaged

in kidnapping Mr. Burns; and it is charged that I, at Boston, May

26th, "with force and arms did knowingly and wilfully, obstruct,

resist, and oppose, ... Watson Freeman, then and there being an

officer of the United States, to the great damage of the said Watson

Freeman; to the great hinderance and obstruction of justice, [to wit,

of the kidnapping of Anthony Burns,] 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 made and

provided."

It is also charged that "one Theodore Parker of Boston, ... with

force and arms in and upon the said 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, ... and then and there

also being in the due and lawful discharge of his duties as such

officer" [to wit, stealing and kidnapping one Anthony Burns]. These

and various other pleasant charges, Mr. Hallett, in the jocose manner

of indictments, alleges against me; wherefrom I must defend myself, as

best I may.

* * * * *

Now, Gentlemen, that you may completely understand the accusation

brought against me, I must go back a little, and bring up several

other matters of fact that have straggled away from this long column

of argument which I have led into the field thus far;--and also rally

some new forces not before drawn into the line of defence. I must

speak of the Hon. Justice Curtis; of his conduct in relation to

Slavery in general, to this particular prosecution, and to this

special case, _United States_ vs. _Theodore Parker_.

First, Gentlemen, let me speak of some events which preceded Mr.

Curtis's elevation to his present distinguished post. To make the

whole case perfectly clear, I must make mention of some others

intimately connected with him.

There is a family in Boston which may be called the Curtis family. So

far as it relates to the matter in hand, it may be said to consist of

six persons, namely, Charles P. Curtis, lawyer, and Thomas B. Curtis,

merchant, sons of the late Thomas Curtis; Benjamin R. Curtis, by birth

a kinsman, and by marriage a son-in-law of Charles P. Curtis, late a

practising lawyer, now this Honorable Judge of the Supreme Court of

the United States, and his brother, George T. Curtis, lawyer, and

United States Commissioner for the District of Massachusetts; Edward

G. Loring, a step-son of the late Thomas Curtis, and accordingly

step-brother of Charles P. and Thomas B. Curtis, lawyer, Judge of

Probate for Boston, United States Commissioner, and, until recently,

Lecturer at the Cambridge Law School; and also William W. Greenough,

son-in-law of Charles P. Curtis, merchant.

This family, though possessing many good qualities, has had a

remarkably close and intimate connection with all, or most, of the

recent cases of kidnapping in Boston. Here are some of the facts, so

painful for me to relate, but so indispensable to a full understanding

of this case.

1. In 1836 Charles P. Curtis and Benjamin R. Curtis appeared as

counsel for the slave-hunters in the famous case of the girl Med,

originally a slave in the West Indies, and brought to Boston by her

mistress. Med claimed her freedom on the ground that slavery was not

recognized by the laws of Massachusetts, and could not exist here

unless it were in the special case, under the Federal Constitution, of

fugitives from the slave States of this Union. The Messrs. Curtis

contended with all their skill--_totis viribus_, as lawyers say--that

slavery might, by legal comity, exist in Massachusetts--that slaves

were property by the law of nations; and that an ownership which is

legal in the West Indies continued in Boston, at least so far as to

leave the right to seize and carry away.

Mr. Charles P. Curtis had already appeared as counsel for a

slave-hunter in 1832, and had succeeded in restoring a slave child,

only twelve or fourteen years of age, to his claimant who took him to

Cuba with the valuable promise that he should be free in the Spanish

West Indies.[184]

[Footnote 184: Daily Advertiser, Dec. 7th, 1832. Mr. Sewall, the early

and indefatigable friend of the slave, asked the Court to appoint a

guardian _ad litem_ for the child, who was not 14, who should see that

he was not enslaved. But the slaveholder's counsel objected, and the

Judge (Shaw) refused; yet to his honor be it said in a similar case in

1841, when Mr. Sewall was counsel for a slave child under the same

circumstances, he delivered him to a guardian appointed by the Probate

Court. 3 Metcalf, 72.]

In the Med case Mr. Benjamin R. Curtis made a long and elaborate

argument to show that "a citizen of a slaveholding State, who comes to

Massachusetts for a temporary purpose of business or pleasure and

brings his slave as a personal attendant, may restrain that slave for

the purpose of carrying him out of the State and returning him to the

domicil of his owner." To support this proposition, he made two

points:--

"1. That this child by the law of Louisiana is _now_ a slave."

"2. That the law of Massachusetts will so far recognize and give

effect to the law of Louisiana, as to allow the master to exercise

this restricted power over his slave." That is, the power to keep her

here as a slave, to remove her to Louisiana, and so make her a slave

for ever and her children after her.

To prove this last point he says by quotation, "we always _import_,

together with their persons, _the existing relations of foreigners

between themselves_." So as we "import" the natural relation of

husband and wife, or parent and child, in the Irish immigrants, and

respect the same, we ought equally to import and respect the unnatural

and forcible relation of master and slave in our visitors from Cuba or

Louisiana.

"It will be urged," he said, "that though we claim to

exercise only a qualified and limited right over the slave,

namely the right to remove him from the State, yet if this

is allowed, all the rights of the master must be allowed,

... and thus Slavery will be introduced into the

Commonwealth. To this I answer,

"(1.) There is no practical difficulty in giving this

qualified effect to the law of Louisiana, [allowing the

master to bring and keep his slaves here and remove them

when he will]. The Constitution of the United States has

settled this question. That provides for and secures to the

master, the exercise of his right to the very extent claimed

in this case."

"(2.) Neither is there any theoretical difficulty."

To do this, he thinks, will "promote harmony and good feeling, where

it is extremely desirable to promote it, encourage frequent

intercourse, and soften prejudices by increasing acquaintance, and

tend to peace and union and good-will." "It will work no injury to the

State [Massachusetts], by violating any public law of the State. The

only law in the statute-book applicable to the subject of Slavery is

the law against kidnapping." "It will work no direct injury to the

citizens of this State for, ... it respects only strangers." "It is

consistent with the public policy of Massachusetts, to permit this ...

right of the master." "_It may be perfectly consistent with our policy

not only to recognize the validity and propriety of those

institutions_ [of Slavery] _in the States where they exist_, but _even

to interfere actively to enable the citizens of those States to enjoy

those institutions at home._" That is, it may be the duty of

Massachusetts, "to interfere actively" in Louisiana for the

establishment and support of Slavery there!

Pennsylvania, New York, New Jersey, and Rhode Island, he adds, have

made laws allowing the slaveholder this right: "The legislatures of

those States are the legitimate and highest authority in regard to

their public policy; what they have declared on this subject, must be

deemed to be true.... We are not at liberty to suppose that it is

contrary to their public policy, that the master should exercise this

right within their territory. I respectfully ask what difference there

is between the policy of Pennsylvania, New York, Rhode Island, and New

Jersey, and the policy of Massachusetts, on the subject of Slavery."

"I shall now attempt," he adds, "to prove that _Slavery is not

immoral_." How do you think he proved that? Did he cite the Bible? No,

he left that to lower law divines. Did he manufacture Bible? No, the

Hon. Peleg Sprague had sufficiently done that a year before. He took a

shorter cut--he denied there was any morality but Legality. "I take it

to be perfectly clear," said this young man in all the moral

enthusiasm of his youth, "that the Standard of Morality by which

Courts of Justice are to be guided is that which the law prescribes.

Your Honors' Opinion as Men or as Moralists has no bearing on the

question. Your Honors are to declare what the Law deems moral or

immoral."

Gentlemen, that needs no comment; this trial is comment enough. But

according to that rule no law is immoral. It was "not immoral" in 1410

to hang and burn thirty-nine men in one day for reading the Bible in

English; the Catholic Inquisition in Spain was "not immoral;" the

butchery of Martyrs was all right soon as lawful! There is no Higher

Law!

It was "not immoral" for the servants of King Pharaoh to drown all the

new-born Hebrew boys; nor for Herod's butchers to murder the Innocents

at Bethlehem. Nay, all the atrocities of the Saint Bartholomew

Massacres, Gentlemen, they were "not immoral," for "the Standard of

Morality" is "that which the law prescribes." So any legislature that

can frame an act, any tyrant who can issue a decree, any court which

can deliver an "opinion," can at once nullify the legislation of the

Universe and "dissolve the union" of Man and God: "Religion has

nothing to do with politics; there it makes men mad." Is that the

doctrine of Young Massachusetts? Hearken then to the Old. In 1765 her

House of Representatives unanimously resolved that "there are certain

essential Rights ... which are founded on the Law of God and Nature,

and are the Common Rights of Mankind, and that the inhabitants of this

Province are unalienably entitled to these essential Rights in common

with all men, and _that no law of Society ... can divest them of these

Rights_." No "Standard of Morality" but Law! A thousand years before

Jesus of Nazareth taught his Beatitudes of Humanity, the old Hebrews

knew better. Hearken to a Psalm nearly three thousand years old.

Among the assemblies of the great,

A Greater Ruler takes his seat;

The God of Heaven, as Judge, surveys

Those Gods on earth, and all their ways.

Why will ye, then, frame wicked laws?

Or why support the unrighteous cause?

When will ye once defend the poor,

That sinners vex the Saints no more?

Arise, oh Lord, and let thy Son

Possess his universal Throne,

And rule the nations with his rod;

He is our Judge, and he our God.

"By the _law of this Commonwealth_," added Mr. Curtis, "_Slavery is

not immoral._ By the Supreme law of this Commonwealth Slavery is not

only recognized as a valid institution, but to a certain extent is

incorporated into our own law. Before you [the court] rise from your

seats, you may be called upon by the master of a fugitive slave, to

grant a certificate ... which _will put the whole force of the

Commonwealth at his disposal, to remove his slave from our

Territory_."

Gentlemen of the Jury, that was conquering his prejudices "with

alacrity;" it was obeying the fugitive slave bill fourteen years

before it was heard of.

He adds still further, by quotation, "I have no doubt but the citizen

of a Slave State has a right to pass, upon business or pleasure,

through any of the States attended by his slaves--and his right to

reclaim his slave would be unquestioned. An escape from the attendance

upon the person of his master, while on a journey through a free

State, should be considered as an escape from the State where the

master had a right of citizenship."

Mr. Charles P. Curtis thus sustained his kinsman:--

"Is that to be considered immoral which the Court is bound

to assist in doing? _It is not for us to denounce as_

legally _immoral a practice which is permitted_ and

sanctioned _by the supreme law of the land_!" "It is said

the practice of Slavery is corrupting in its influence on

public morals. But the practice of bringing slaves here was

much more common thirty years ago than now. If this practice

be so corrupting, why is it tolerated in other States?"...

"The law of New York allows even foreigners to go there with

their slaves; and have the morals of that State suffered in

consequence? In Pennsylvania the law is similar, but where

is the evidence of its pernicious influence?" "As to the

_right to using them_, [the slaves voluntarily brought here

by their masters,] _notwithstanding the supposed horror at

such an admission_, the legislatures of New York and

Pennsylvania, Rhode Island and New Jersey, have actually

enacted statutes allowing precisely that privilege."[185]

[Footnote 185: Med. Case, 1836.]

But the Supreme Court of Massachusetts held otherwise. Med was

declared free. Chief Justice Shaw covered himself with honor by his

decision. And soon after, (Aug. 29,) the Daily Advertiser, the "organ"

of the opinions of this family, said:--

"In some of the States there is ... legislative provision

for cases of this sort, [allowing masters to bring and hold

slaves therein,] and it would seem that _some such provision

is necessary in this State_, unless we would prohibit

citizens of the Slave States from travelling in this State

with their families, and unless we would permit such of them

as wish to emancipate their slaves, to throw them, at their

pleasure, upon the people of this State."

Gentlemen, Mr. Curtis in 1836 contended for all which Mr. Toombs

boasts he shall get--the right of the slaveholder to sit down at the

foot of Bunker Hill monument with his slaves! Nay, Mr. Curtis granted

more: it may be the duty of Massachusetts "to interfere actively," and

establish slavery in Louisiana, or in Kansas. It may be said, this was

only a lawyer pleading for his client. It was--a lawyer asking the

Supreme Court of Massachusetts to establish slavery in this

Commonwealth. Is it innocent in a lawyer to ask the court to do a

wicked thing, to urge the court to do it? Then is it equally innocent

to ask the Treasurer of a Railroad to forge stock, or an editor to

publish lies, or a counterfeiter to make and utter base coin, or an

assassin to murder men. Surely it is as innocent to urge men to kidnap

blacks in Africa as in Boston.

Gentlemen, That declaration--that the Statute supersedes natural

Justice, and that the only "Standard of Morality" by which the courts

are to be guided is "that which the law prescribes"--deserves your

careful consideration. "He that squares his conscience by the law is a

scoundrel"--say the proverbs of many nations. What do you think of a

man who knows no lawgiver but the General Court of Massachusetts, or

the American Congress: no Justice but the Statutes? If Mr. Curtis's

doctrine is correct, then Franklin, Hancock, Adams, Washington, were

only Rebels and Traitors! They refused that "Standard of Morality."

Nay, our Puritan Fathers were all "criminals;" the twelve Apostles

committed not only "misdemeanors" but sins; and Jesus of Nazareth was

only a malefactor, a wanton disturber of the public peace of the

world!

The slave child Med, poor, fatherless, and unprotected, comes before

the Supreme Court of Massachusetts, claiming her natural and

unalienable Right to Liberty and the Pursuit of Happiness,--if not

granted she is a slave for ever. In behalf of her wealthy "owner" Mr.

Curtis resists the girl's claim; tells the court she "is now a slave;"

there is "no practical difficulty" in allowing the master to keep her

in that condition, no "theoretical difficulty;" "slavery is not

immoral;" it may be the duty of Massachusetts not only to recognize

slavery at home, but also "even to interfere actively" to support

slavery abroad; the law is the only "Standard of Morality" for the

courts; that establishes slavery in Massachusetts! Gentlemen, what do

mankind say to such sophistry? Hearken to this Hebrew Bible: "Wo unto

them that decree unrighteous decrees, and that write grievousness

which they have prescribed, to turn aside the needy from judgment, and

to take away the Right from the poor of my people, that widows may be

their prey, and _that they may rob the fatherless_." Let the stern

Psalm of the Puritans still further answer from the manly bosom of the

Bible.

"Judges who rule the world by laws,

Will ye despise the righteous cause,

When the injured poor before you stands?

Dare ye condemn the righteous poor

And let rich sinners 'scape secure,

While Gold and Greatness bribe your hands?

"Have ye forgot, or never knew,

That God will judge the judges too?

High in the Heavens his Justice reigns;

Yet you invade the rights of God,

And send your bold decrees abroad,

To bind the Conscience in your chains.

"Break out their teeth, eternal God,

Those teeth of lions dy'd in blood;

And crush the serpents in the dust;

As empty chaff, when whirlwinds rise,

Before the sweeping tempest flies,

So let their hopes and names be lost.

"Thus shall the Justice of the Lord

Freedom and peace to men afford;

And all that hear shall join and say,

Sure there's a God that rules on high,

A God that hears his children cry,

And all their sufferings will repay."

2. After Mr. Webster had made his speech of March 7, 1850, pledging

himself and his State to the support of the fugitive slave bill, then

before Congress, "to the fullest extent," Thomas B. Curtis, with the

help of others, got up a letter to Mr. Webster, dated March 25, 1850,

signed, it is said, by 987 persons, who say: "We desire to express to

you our deep obligations for what this speech has done and is doing."

"You have pointed out to a whole people the path of duty, have

convinced the understanding and touched the conscience of the nation."

"We desire, therefore, to express to you our entire concurrence in the

sentiments of your speech."

3. A little later, Mr. Webster returned to Boston, and was

"rapturously received" at the Revere House, April 29, 1850, by a

"great multitude," when Benjamin R. Curtis made a public address, and

expressed his "abounding gratitude for the ability and fidelity" which

Mr. Webster had "brought to the defence of the Constitution and of the

Union," and commended him as "_eminently vigilant, wise, and faithful

to his country, without a shadow of turning_."

4. Presently, after the passage of the fugitive slave bill, at a

dinner party, at the house of a distinguished counsellor of Boston,

Charles P. Curtis declared that he hoped the first fugitive slave who

should come to Boston would be seized and sent back!

5. Charles P. Curtis and his step-brother Edward G. Loring, and George

T. Curtis, defended the fugitive slave bill by writing articles in the

_Boston Daily Advertiser_.

6. In November, 1850, the slave-hunters, thus invited and encouraged,

came to Boston, seeking to kidnap William and Ellen Craft: but they in

vain applied to Commissioner Benj. F. Hallett, and to Judges Woodbury

and Sprague, for a warrant to arrest their prey. Finally, they betook

themselves to Commissioner George T. Curtis, who at once agreed to

grant a warrant; but, according to his own statement, in a letter to

Mr. Webster, Nov. 23, 1850, as he anticipated resistance, and

considered it very important that the Marshal should have more support

than it was in his power as a Commissioner to afford, he procured a

meeting of the Commissioners, four in number, and with their aid

succeeded in persuading the Circuit Court, then in session, to issue

the warrant.

Gentlemen, as that letter of Mr. George T. Curtis contains some

matters which are of great importance, you will thank me for

refreshing your memory with such pieces of history.

"An application [for a warrant to arrest Mr. Craft] had

already been made to the judges [Messrs. Woodbury and

Sprague] privately ... they could not grant a warrant on

account of the pendency of an important Patent Cause then on

trial before a jury." "To this I replied, that ... the

ordinary business of the Court ought to give way for a

sufficient length of time, to enable the judges to receive

this application and to hear the case." "On a private

intimation to the presiding judge of our desire to confer

with him [the desire of the kidnapping commissioners, Mr.

B.F. Hallett, Mr. Edward G. Loring, Mr. C.L. Woodbury, and

Mr. G.T. Curtis] the jury were dismissed at _an earlier hour

than usual, ... and every person present except the

Marshal's deputies left the room, and the doors were

closed_." "The learned Judge said ... that he would attend

at half past eight the next morning, to grant the warrant."

"A process was placed in the hands of the Marshal ... in the

execution of which he might be called upon to _break open

dwelling-houses, and perhaps take life_, by quelling

resistance, actual or _threatened_." "I devoted at once a

good deal of time to the necessary investigations of the

subject." "There is a great deal of legislation needed to

make the general government independent of State control,"

says this "Expounder of the Constitution," "and independent

of the power of mobs, whenever and wherever its measures

chance to be unpopular." "The office of United States

Marshal is by no means organized and fortified by

legislation as it should be to encounter popular

disturbance."

7. The warrant having been issued for the seizure of Mr. Craft,

Marshal Devens applied to Benjamin R. Curtis for legal advice as to

the degree of force he might use in serving it, and whether it ought

to be regarded as a civil or a criminal process. George T. Curtis was

employed by his brother to search for authorities on these points.

They two, together, as appears from the letter of George T. Curtis to

Mr. Webster, induced Marshal Devens to ask a further question, which

gave Benjamin R. Curtis an opportunity to come out with an elaborate

opinion in favor of the constitutionality of the fugitive slave bill,

dated November 9, 1850. This was published in the newspapers. In order

to maintain the constitutionality of this act, Benjamin R. Curtis was

driven to assume, as all its defenders must, that the Commissioner, in

returning the fugitive, performs none of the duties of a Judge; that

the hearing before him is not "a case arising under the laws of the

United States;" that he acts not as a judicial, but merely as an

executive and "ministerial" officer--not deciding him to be a slave,

but merely giving him up, to enable that point to be tried

elsewhere.[186] But, spite of this opinion, public justice and the

Vigilance Committee forced the (Southern) slave-hunters to flee from

Boston, after which, Mr. and Mrs. Craft left America to find safety in

England, the evident rage and fierce threats of the disappointed

Boston slave-hunters making it unsafe for them to remain.

[Footnote 186: On this see Hildreth's Despotism, 262, 280.

Commissioner Loring considers that the fugitive slave bill

commissioners have "_judicial_ duties." Remonstrance to General Court,

2.]

8. After the failure of this attempt to arrest Mr. Craft, Thomas B.

Curtis got up a "Union Meeting" at Faneuil Hall, November 26,

1850.[187] The call was addressed to such as "regard with disfavor all

further popular agitation" of the subject of Slavery. Thomas B. Curtis

called the meeting to order: William W. Greenough, from the "Committee

of Arrangements," presented the resolutions, which you have already

heard.[188] It was said at the time that they were written, wholly or

in part, by Mr. Benjamin R. Curtis, who moved their adoption and made

a long and elaborate speech thereon.

[Footnote 187: See Mr. Curtis's letter in Daily Advertiser of February

7, 1855.]

[Footnote 188: See above, p. 148, 149.]

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 20 / 28 段