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.]