doubt its propriety. If persons having influence over others
use that influence to induce the commission of crime, while
they themselves remain at a safe distance, that must be
deemed a very imperfect system of law which allows them to
escape with impunity. Such is not our law. It treats such
advice as criminal, and subjects the giver of it to
punishment according to the nature of the offence to which
his pernicious counsel has led. If it be a case of felony,
he is by the common law an accessory before the fact, and by
the laws of the United States and of this State, is
punishable to the same extent as the principal felon. If it
be a case of misdemeanor, the adviser is himself a principal
offender, and is to be indicted and punished as if he
himself had done the criminal act. It may be important for
you to know what, in point of law, amounts to such an
advising or counselling another as will be sufficient to
constitute this legal element in the offence. It is laid
down by high authority, that though a mere tacit
acquiescence, or words, which amount to a bare permission,
will not be sufficient, yet such a procurement may be,
either by direct means, as by hire, counsel, or command, or
indirect, by evincing an express liking, approbation, or
assent to another's criminal design. From the nature of the
case, the law can prescribe only general rules on this
subject. My instruction to you is, that language addressed
to persons who immediately afterwards commit an offence,
actually intended by the speaker to incite those addressed
to commit it, and adapted thus to incite them, is such a
counselling or advising to the crime as the law
contemplates, and the person so inciting others is liable to
be indicted as a principal.
"In the case of the _Commonwealth_ v. _Bowen_ (13 Mass. R.
359), which was an indictment for counselling another to
commit suicide, tried in 1816, Chief Justice Parker
instructing the jury, and speaking for the Supreme Court of
Massachusetts, said:--
"'The government is not bound to prove that Jewett would not
have hung himself, had Bowen's counsel never reached his
ear. The very act of advising to the commission of a crime
is of itself unlawful. The presumption of law is that advice
has the influence and effect intended by the adviser, unless
it is shown to have been otherwise; as that the counsel was
received with scoff, or was manifestly rejected and
ridiculed at the time it was given. It was said in the
argument that Jewett's abandoned and depraved character
furnishes ground to believe that he would have committed the
act without such advice from Bowen. Without doubt he was a
hardened and depraved wretch; but it is in man's nature to
revolt at self-destruction. When a person is predetermined
upon the commission of this crime, the seasonable
admonitions of a discreet and respected friend would
probably tend to overthrow his determination. On the other
hand, the counsel of an unprincipled wretch, stating the
heroism and courage the self-murderer displays, might
induce, encourage, and fix the intention, and ultimately
procure the perpetration of the dreadful deed; and if other
men would be influenced by such advice, the presumption is
that Jewett was so influenced. He might have been influenced
by many powerful motives to destroy himself. Still the
inducements might have been insufficient to procure the
actual commission of the act, and one word of additional
advice might have turned the scale.'
"When applied--as this ruling seems to have been here
applied--to a case in which the advice was nearly connected,
in point of time, with the criminal act, it is, in my
opinion, correct. If the advice was intended by the giver to
stir or incite to a crime--if it was of such a nature as to
be adapted to have this effect, and the persons incited
immediately afterwards committed that crime--it is a just
presumption that they were influenced by the advice or
incitement to commit it. The circumstances, or direct proof,
may or may not be sufficient to control this presumption;
and whether they are so, can duly be determined in each
case, upon all its evidence.
"One other rule of law on this subject is necessary to be
borne in mind--the substantive offence to which the advice
or incitement applied must have been committed; and it is
for that alone the adviser or procurer is legally
accountable. Thus if one should counsel another to rescue
one prisoner, and he should rescue another, unless by
mistake; or if the incitement was to rescue a prisoner, and
he commit a larceny, the inciter is not responsible. But it
need not appear _that the precise time, or place, or means
advised_, were used. Thus if one incite A. to murder B., but
advise him to wait until B. shall be at a certain place at
noon, and A. murders B. at a different place in the morning,
the adviser is guilty. So if the incitement be to poison,
and the murderer shoots, or stabs. So if the counsel be to
beat another, and he is beaten to death, the adviser is a
murderer; for having incited another to commit an unlawful
act, he is responsible for all that ensues upon its
execution.
"These illustrations are drawn from cases of felonies,
because they are the most common in the books and the most
striking in themselves; but the principles on which they
depend are equally applicable to cases of misdemeanor. In
all such cases the real question is, whether the accused did
procure, counsel, command, or abet the substantive offence
committed. If he did, it is of no importance that his advice
or directions were departed from in respect to the time, or
place, or precise mode or means of committing it.
"Gentlemen: The events which have recently occurred in this
city, have rendered it my duty to call your attention to
these rules of law, and to direct you to inquire whether in
point of fact the offence of obstructing process of the
United States has been committed; if it has, you will
present for trial all such persons as have so participated
therein as to be guilty of that offence. And you will allow
me to say to you that if you or I were to begin to make
discriminations between one law and another, and say this we
will enforce and that we will not enforce, we should not
only violate our oaths, but so far as in us lies, we should
destroy the liberties of our country, which rest for their
basis upon the great principle that our country is governed
by laws, constitutionally enacted, and not by men.
"In one part of our country the extradition of fugitives
from labor is odious; in another, if we may judge from some
transactions, the law concerning the extradition of
fugitives from justice has been deemed not binding; in
another still, the tariff laws of the United States were
considered oppressive, and not fit to be enforced.
"Who can fail to see that the government would cease to be a
government if it were to yield obedience to those local
opinions? While it stands, all its laws must be faithfully
executed, or it becomes the mere tool of the strongest
faction of the place and the hour. If forcible resistance to
one law be permitted practically to repeal it, the power of
the mob would inevitably become one of the constituted
authorities of the State, to be used against any law or any
man obnoxious to the interests and passions of the worst or
most excited part of the community; and the peaceful and the
weak would be at the mercy of the violent.
"It is the imperative duty of all of us concerned in the
administration of the laws to see to it that they are
firmly, impartially, and certainly applied to every offence,
whether a particular law be by us individually approved or
disapproved. And it becomes all to remember, that forcible
and concerted resistance to any law is civil war, which can
make no progress but through bloodshed, and can have no
termination but the destruction of the government of our
country, or the ruin of those engaged in such resistance. It
is not my province to comment on events which have recently
happened. They are matters of fact which, so far as they are
connected with the criminal laws of the United States, are
for your consideration. I feel no doubt that, as good
citizens and lovers of our country, and as conscientious
men, you will well and truly observe and keep the oath you
have taken, diligently to inquire and true presentment make
of all crimes and offences against the laws of the United
States given you in charge."[193]
[Footnote 193: Law Reporter, August, 1854.]
Now gentlemen look at some particulars of this charge.
1. "If a multitude of persons shall assemble _even in a public
highway_, with the design to _stand together, and thus prevent the
officer from passing freely along that way_, in the execution of his
precept, and the officer should thus be _hindered and obstructed_,
this would, of itself, and without any active violence, be such an
obstruction as is contemplated by this law." Of course, all persons
thus assembled in the public highway were guilty of that offence, and
liable to be punished with imprisonment for twelve months and a fine
of three hundred dollars: "_All who are present_, and obstruct,
resist, or oppose, _are of course guilty_." Their "design" is to be
inferred from "the fact" that the officer was obstructed.
That is not all, this offence in technical language the Judge calls a
"misdemeanor," and in "misdemeanors," he says, "all are principals."
So, accordingly, not only are all guilty who _actually obstruct_ but
likewise all who are "leagued in the common design, and _so situated
as to be able_ in case of need _to afford assistance to those actually
engaged_, though they do not actually obstruct, resist, or oppose."
These are obstructors by construction No. 1; they must have been
several thousands in number.
But even that is not all; the judicial logic of deduction goes further
still, and he adds, "Not only those who are present, but _those who_
though _absent_ when the offence was committed, _did procure, counsel,
command, or abet_ others to commit the offence are indictable as
principals." These are obstructors by construction No. 2.
2. Next he determines what it is which "amounts to _such advising or
counselling_ another as will be sufficient to constitute this legal
element in the offence." First he constructs the physical act which is
the misdemeanor, namely, standing in the high road and thereby
hindering a kidnapper from "passing freely along that way; or being so
situated as to be able to afford assistance to others thus standing;
or advising another thus to stand, or be situated:" next he constructs
the _advice_, the metaphysical act, which is equally a "misdemeanor."
This is the square root of construction No. 2. Look at this absurd
quantity.
"_Such a procurement may be_, either by direct means, as by hire,
counsel, or command, or indirect, _by evincing an express liking,
approbation, or assent_." Thus the mere casual expression, "I wish
Burns would escape, or I wish somebody would let him out," is a
"Misdemeanor;" it is "evincing an express liking." Nodding to any
other man's similar wish is a misdemeanor. It is "approbation." Even
smiling at the nod is a crime--it is "assent." Such is the threefold
shadow of this constructive shade. But even that is not all. A man is
held responsible for what he evinced no _express_ or implied _liking_
for: "_it need not appear that the precise time, or place, or means
advised, were used_." Accordingly, he that "evinces an express
liking," "_is responsible for all that ensues upon its execution_." He
evinces his assent to the End and is legally responsible for any Means
which any hearer thereof shall, at any time, or in any place, make use
of to attain that end!
Gentlemen of the Jury, this charge is a _quo warranto_ against all
Freedom of Speech. But suppose it were good law, and suppose the
Grand-Jury obedient to it, see how it would apply.
All who evinced an express liking, approbation, or assent to the
rescue of Mr. Burns are guilty of a misdemeanor; if they "evinced an
express liking" that he should be rescued by a miracle wrought by
Almighty God,--and some did express "approbation" of that
"means,"--they are indictable, guilty of a "misdemeanor;" "it need not
appear that the precise time, or place, or means advised, were used!"
If any colored woman during the wicked week--which was ten days
long--prayed that God would deliver Anthony, as it is said his angel
delivered Peter, or said "Amen" to such a prayer, she was "guilty of a
misdemeanor;" to be indicted as a "principal."
So every man in Boston who, on that bad Friday, stood in the streets
of Boston between Court Square and T Wharf, was "guilty of a
misdemeanor," liable to a fine of three hundred dollars, and to
jailing for twelve months. All who at Faneuil Hall stirred up the
minds of the people in opposition to the fugitive slave bill; all who
shouted, who clapped their hands at the words or the countenance of
their favorites, or who expressed "approbation" by a whisper of
"assent," are "guilty of a misdemeanor." The very women who stood for
four days at the street corners, and hissed the infamous Slave-hunters
and their coadjutors; they, too, ought to be punished by fine of three
hundred dollars and imprisonment for a year! Well, there were fifteen
thousand persons "assembled" "in the highway" of the city of Boston
that day opposed to kidnapping; half the newspapers in the country
towns of Massachusetts "evinced an express liking" for freedom, and
opposed the kidnapping; they are all "guilty of a misdemeanor;" they
are "Principals." Nay, the ministers all over the State, who preached
that kidnapping was a sin; those who read brave words out of the Old
Testament or the New; those who prayed that the victim might escape;
they, likewise, were "guilty of a misdemeanor," liable to be fined
three hundred dollars and jailed for twelve months.[194]
[Footnote 194: 2 Parker's Additional, 280.]
But where did Judge Curtis find his right to levy Ship-money, Tonnage,
and Poundage on the tongues of men; where did he find his "law?"
Surely not in the statute. When the bill was pending in 1790, suppose
his construction of the statute had been declared to Congress--who
would have voted for a law so monstrous? The statute lay in the
Law-book for nearly seventy years, and nobody ever applied it to a
case like this.
Gentlemen, I have shown you already how British judges in the time of
the Jameses and Charleses perverted the law to the basest of purposes.
I mentioned, amongst others, the work of Twysden and Kelyng and Jones.
This is a case like those. Just now I spoke of the action of Chief
Justice Parker who said it was not for the jury to judge whether a law
_were harsh or not_; I showed how he charged the jury in the case of
Bowen, and how the jury returned a verdict of "not guilty," thus
setting his inhuman charge at nought.[195] But Judge Curtis, for his
law, relies upon Judge Parker's charge. It is not a Statute made by
the legislature that Judge Curtis relies on for his law; it is not a
Custom of the Common law; it is not an Opinion of the Court solemnly
pronounced after mature deliberation; it is only the charge of a
single judge to a jury in a special case, and one which the jury
disregarded even then!
[Footnote 195: See above, p. 112.]
But where did Judge Parker, an estimable man, find his law? Mr. Perez
Morton, the Attorney-General, found it in Kelyng's Reports. In the
case of Bowen only one authority is referred to for that odious
principle on which the judge sought to hang him; that authority is
taken from "9 Charles I.;" from the year 1634--the worst age of the
Stuart tyranny! But even that authority was not a Statute law, not a
Custom of the People, not the Opinion of a Court solemnly pronounced.
It was the charge of a single judge--a charge to a jury, made by an
inferior judge, of an inferior court, in a barbarous age, under a
despotic king! Hearken to this,--from the volume of Kelyng's
Reports.[196] "_Memorandum_, That my Brother Twysden shewed me a
Report which he had of the Charge given by Justice Jones to the
grand-jury at the King's Bench Barr, in Michaelmas Term, 9 Carl. I."
Gentlemen of the Jury, that charge no more settled the law even in
1634, than Judge Sprague's charge telling the _grand-jury to "obey
both"_ the law of God and the law of man which is exactly opposite
thereto, settled the law of the United States and the morality of the
People. But yet that is all the law the government had to hang Bowen
with. The jury made nothing of it.[197]
[Footnote 196: Page 52. See above, p. 112.]
[Footnote 197: Jones's "opinion" relates to a case of _murder_ by the
advice of an absent person, not at all to _suicide by the advice of
another_, so it could not apply to the case of Bowen.]
But Kelyng's Reports are of no value as authority. Here is what Lord
Campbell, now Chief Justice of the King's Bench, says of them and
their author. I read it to you long ago. "I ought to mention that
among his other vanities he had the ambition to be an author; and he
compiled a folio volume of decisions in criminal laws, _which are of
no value whatever except to make us laugh at some of the silly
egotisms with which they abound_."[198] Twysden, who showed him the
Report of the charge, is of little value, and of no authority. I
mentioned his character before.
[Footnote 198: 2 Campbell's Justices, 406.]
Justice Jones, who made the charge, would hardly be an authority in
the English courts in a nice question of construction. He allowed the
king to levy ship-money, as I have shown before,[199] and dared not
perform the duties of his office and so protect the Liberty of the
Subject when the king smote thereat. He was brought before the House
of Commons to answer for his conduct, in 1628. "His memory," says
Echard, "suffers upon the account of his open judgment for the
ship-money, the unhappy consequence of which he did not live to
see."[200]
[Footnote 199: Above, p. 23.]
[Footnote 200: Parl. Hist. 290; 3 St. Tr. 844, 1181, 162; 2 Echard,
186.]
Judge Kelyng, the great authority in this case, was notorious for
violating alike Justice and the law. Out of a riot committed by some
apprentices he constructed the crime of High Treason, and sentenced
thirteen men to death. He fined and imprisoned jurors because they
refused to return the wicked, illegal verdict he demanded. With
language too obscene to utter in this century, he mocked at the Great
Charter of English Liberty. But at last the scandal was too great even
for the reign of Charles II., and in 1667 the "Grand Committee of
Justice" in the House of Commons, after examining witnesses and
hearing him on his own behalf, reported:--
1. "That the proceedings of the Lord Chief Justice in the
cases referred to us are innovations in the trial of men for
their lives and liberties, and that he hath used an
arbitrary and illegal power which is of dangerous
consequence to the lives and liberties of the people of
England."
2. "That in place of Judicature, the Lord Chief Justice hath
undervalued, vilified, and condemned MAGNA CHARTA, the great
preserver of our lives, freedom, and property."
3. "That the Lord Chief Justice be brought to trial, in
order to condign punishment, in such manner as the House
shall judge most fit and requisite."[201]
[Footnote 201: See above, p. 23, 39, 113, 125; 1 Campbell, _Ibid._
406; 6 St. Tr. 76, 229, 171, 532, 769, 879, 992; Pepys' Diary, 17
Oct., 1667; Commons Journal, 16th Oct., 1667.]
Some of the lawyers whom he had browbeaten, generously interceded for
him. He made an abject submission "with great humility and reverence,"
and the House desisted from prosecution. "He was abundantly tame for
the rest of his days," says Lord Campbell, "fell into utter contempt,"
"and _died to the great relief of all who had any regard for the due
administration of justice_."
Gentlemen, I am no lawyer, and may easily be mistaken in this matter,
but as I studied Judge Curtis's charge and cast about for the sources
of its doctrines and phraseology, I thought I traced them all back to
Kelyng's opinions in that famous case, where he made treason out of a
common riot among apprentices; and to Judge Chase's "opinions" and
"rulings" in the trial of Mr. Fries,--opinions and rulings which
shocked the public at the time, and brought legislative judgment on
his head. Let any one compare the documents, I think he will find the
whole of Curtis in those two impeached Judges, in Kelyng and in
Chase.[202]
[Footnote 202: 1 Wharton, 636; Kelyng, 1-24, 70-77; 6 St. Tr. 879.]
Here then is the law,--derived from the memorandum of the charge to a
grand-jury made in 1634, by a judge so corrupt that he did not
hesitate to violate Magna Charta itself; not published till more than
seventy years after the charge was given; cited as law by a single
authority, and that authority impeached for unrighteously and
corruptly violating the laws he was set and sworn to defend, impeached
even in that age--of Charles II.;--that is the law! Once before an
attempt was made to apply it in Massachusetts, and inflict capital
punishment on a man for advising a condemned murderer to anticipate
the hangman and die by his own hand in private--and the jury refused.
But to such shifts is this Honorable Court reduced! Gentlemen of the
Jury, the fugitive slave bill cannot be executed in Massachusetts, not
in America, without reviving the worst despotism of the worst of the
Stuarts; not without bringing Twysden and Jones and Kelyng on the
Bench; no, not without Saunders and Finch, and Jeffreys and Scroggs!
Gentlemen, such was Judge Curtis's charge. I have been told it was
what might have been expected from the general character and previous
conduct of the man; but I confess it did surprise me: it was foolish
as it was wicked and tyrannical. But it all came to nought.
For, alas! there was a grand-jury, and the Salmonean thunder of the
fugitive slave bill judge fell harmless--quenched, conquered,
disgraced, and brutal,--to the ground. Poor fugitive slave bill Court!
It can only gnash its teeth against freedom of speech in Faneuil Hall;
only bark and yelp against the unalienable rights of man, and howl
against the Higher Law of God! it cannot bite! Poor, imbecile,
malignant Court! What a pity that the fugitive slave bill judge was
not himself the grand-jury, to order the indictment! what a shame that
the attorney was not a petty jury to convict! Then New England, like
Old, might have had her "bloody assizes," and Boston streets might
have streamed with the heart's gore of noble men and women; and human
heads might have decked the pinnacles all round the town; and Judge
Curtis and Attorney Hallett might have had their place with Judge
Jeffreys and John Boilman of old. What a pity that we have a
grand-jury and a traverse jury to stand between the malignant arm of
the Slave-hunter and the heart of you and me![203]
[Footnote 203: 2 Parker's Additional, p. 281.]
The grand-jury found no bill and were discharged. In a Fourth of July
Sermon "Of the Dangers which Threaten the Rights of Man in America," I
said:--
"Perhaps the Court will try again, and find a more pliant
Grand-Jury, easier to intimidate. Let me suggest to the
Court that the next time it should pack its Jury from the
Marshal's 'Guard.' Then there will be Unity of Idea; of
action too,--the Court a figure of equilibrium."
The audacious Grand-Jury was discharged. A new one was summoned; this
time it was constructed out of the right material. Before that,
Gentlemen, we had had the Judge or his kinsmen writing for the
fugitive slave bill in the newspapers; getting up public meetings in
behalf of man-stealing in Boston; writing letters in support of the
same; procuring opinions in favor of the constitutionality of the
fugitive slave bill; nay, kidnapping men and sending them into eternal
bondage, and in the newspapers defending the act; but we had none of
them in the Jury box. On the new Grand-Jury appeared Mr. William W.
Greenough, the brother-in-law of Hon. Judge Curtis--each married a
daughter of Mr. Charles P. Curtis. Mr. Greenough "was very active in
his endeavors to procure an indictment" against me; and a bill was
found.