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[Transcriber's Note: A table of contents has been added for the
reader's convenience. Errors listed in the Errata section have been
noted with a [Transcriber's Note]; other obvious printer errors have
been corrected without note.]

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,

BY

THEODORE PARKER,

MINISTER OF THE TWENTY-EIGHTH CONGREGATIONAL SOCIETY IN BOSTON.

BOSTON:
PUBLISHED FOR THE AUTHOR.
1855.

Entered according to Act of Congress, in the year 1855, by

THEODORE PARKER,

In the Clerk's Office of the District Court of the District of
  Massachusetts.

CAMBRIDGE:
ALLEN AND FARNHAM, PRINTERS.

CONTENTS

PREFACE
INTRODUCTION
DEFENCE
ERRATA
OTHER WORKS BY THE SAME AUTHOR

TO

JOHN PARKER HALE

AND

CHARLES MAYO ELLIS,

MAGNANIMOUS LAWYERS,

FOR THEIR LABORS IN A NOBLE PROFESSION,

WHICH HAVING ONCE IN ENGLAND ITS KELYNG, ITS SAUNDERS, ITS JEFFREYS,
AND ITS SCROGGS, AS NOW IN AMERICA ITS SHARKEY, ITS GRIER, ITS CURTIS,
AND ITS KANE, HAS YET ALSO SUCH GENEROUS ADVOCATES OF HUMANITY AS
EQUAL THE GLORIES OF HOLT AND ERSKINE, OF MACKINTOSH AND ROMILLY,

FOR THEIR ELOQUENT AND FEARLESS DEFENCE OF TRUTH, RIGHT, AND LOVE,

THIS VOLUME IS DEDICATED,

BY THEIR CLIENT AND FRIEND,

THEODORE PARKER.

PREFACE.

TO THE PEOPLE OF THE FREE STATES OF AMERICA.

FELLOW-CITIZENS AND FRIENDS,--

If it were a merely personal matter for which I was arraigned before
the United States Court, after the trial was over I should trouble the
public no further with that matter; and hitherto indeed, though often
attacked, nay, almost continually for the last fourteen years, I have
never returned a word in defence. But now, as this case is one of such
vast and far-reaching importance, involving the great Human Right to
Freedom of Speech, and as the actual question before the court was
never brought to trial, I cannot let the occasion pass by without
making further use of it.

When Judge Curtis delivered his charge to the Grand-Jury, June 7th,
1854, I made ready for trial, and in three or four days my line of
defence was marked out--the fortifications sketched, the place of the
batteries determined; I began to collect arms, and was soon ready for
his attack. When that Grand-Jury, summoned with no special reference
to me, refused to find a bill and were discharged, I took public
notice of the conduct of Judge Curtis, in a Sermon for the Fourth of
July.[1] But I knew the friends of the fugitive slave bill at Boston
and Washington too well to think they would let the matter sleep; I
knew what arts could be used to pack a jury and procure a bill. So I
was not at all surprised when I heard of the efforts making by the
Slave Power in Boston to obtain an indictment by another grand-jury
summoned for that purpose. It need not be supposed that I was wholly
ignorant of their doings from day to day. The arrest was no
astonishment to me. I knew how much the reputation of this Court and
of its Attorney depended on the success of this prosecution. I knew
what private malignity was at work.

[Footnote 1: 2 Parker's Additional Speeches, 178-283.]

After my arraignment I made elaborate preparation for my defence. I
procured able counsel, men needing no commendation, to manage the
technical details which I knew nothing about and so could not meddle
with, while I took charge of other matters lying more level to my own
capacity. I thought it best to take an active part in my own
defence,--for the matter at issue belonged to my previous studies and
general business; my personal friends and the People in general,
seemed to expect me to defend myself as well as I could.

A great political revolution took place between the Judge's charge and
my arraignment, June 7th, and November 29th, 1854, and I thought the
Court would not allow the case to come to open argument. For
certainly, it would not be a very pleasant thing for Judge Sprague and
Judge Curtis, who have taken such pains to establish slavery in
Massachusetts, to sit there--each like a travestied Prometheus,
chained up in a silk gown because they had brought to earth fire from
the quarter opposite to Heaven--and listen to Mr. Hale, and Mr.
Phillips and other anti-slavery lawyers, day after day: there were
facts, sure to come to light, not honorable to the Court and not
pleasant to look at in the presence of a New England community then
getting indignant at the outrages of the Slave Power. I never thought
the case would come to the jury. I looked over the indictment, and to
my unlearned eye it seemed so looped and windowed with breaches that a
skilful lawyer might drive a cart and six oxen through it in various
directions; and so the Court might easily quash the indictment and
leave all the blame of the failure on the poor Attorney--whom they
seemed to despise, though using him for their purposes--while they
themselves should escape with a whole reputation, and ears which had
not tingled under manly speech.

Still, it was possible that the trial would come on. Of course, I knew
the trial would not proceed on the day I was ordered to appear--the
eighty-fifth anniversary of the Boston Massacre. It would be
"unavoidably postponed," which came to pass accordingly. The Attorney,
very politely, gave me all needed information from time to time.

At the "trial," April 3d, it was optional with the defendant's counsel
to beat the Government on the indictment before the Court; or on the
merits of the case before the Jury. The latter would furnish the most
piquant events, for some curious scenes were likely to take place in
the examination of witnesses, as well as instruction to be offered in
the Speeches delivered. But on the whole, it was thought best to blow
up the enemy in his own fortress and with his own magazine, rather
than to cut him to pieces with our shot in the open field. So the
counsel rent the indictment into many pieces--apparently to the great
comfort of the Judges, who thus escaped the battle, which then fell
only on the head of the Attorney.

At the time appointed I was ready with my defence--which I now print
for the Country. It is a Minister's performance, not a lawyer's. Of
course, I knew that the Court would not have allowed me to proceed
with such a defence--and that I should be obliged to deliver it
through the press. Had there been an actual jury trial, I should have
had many other things to offer in reference to the Government's
evidence, to the testimony given before the grand-jury, and to the
conduct of some of the grand-jurors themselves. So the latter part of
the defence is only the skeleton of what it otherwise might have
been,--the geological material of the country, the Flora and Fauna
left out.

It would have been better to publish it immediately after the decision
of the case: but my _brief_ was not for the printer, and as many
duties occurred at that time, it was not till now, in a little
vacation from severer toils, that I have found leisure to write out my
defence in full. Fellow-Citizens and Friends, I present it to you in
hopes that it may serve the great cause of Human Freedom in America
and the world; surely, it has seldom been in more danger.

THEODORE PARKER.

BOSTON, _24th August_, 1855.

INTRODUCTION.

On Tuesday, the 23d of May, 1854, Charles F. Suttle of Virginia,
presented to Edward Greeley Loring, Esquire, of Boston, Commissioner,
a complaint under the fugitive slave bill--Act of September 18th,
1850--praying for the seizure and enslavement of Anthony Burns.

The next day, Wednesday, May 24th, Commissioner Loring issued the
warrant: Mr. Burns was seized in the course of the evening of that
day, on the false pretext of burglary, and carried to the Suffolk
County Court House in which he was confined by the Marshal, under the
above-named warrant, and there kept imprisoned under a strong and
armed guard.

On the 25th, at about nine o'clock in the morning, the Commissioner
proceeded to hear and decide the case in the Circuit Court room, in
which were stationed about sixty men serving as the Marshal's guard.
Seth J. Thomas, Esquire, and Edward Griffin Parker, Esquire, members
of the Suffolk Bar, appeared as counsel for Mr. Suttle to help him and
Commissioner Loring make a man a Slave. Mr. Burns was kept in irons
and surrounded by "the guard." The Slave-hunter's documents were
immediately presented, and his witness was sworn and proceeded to
testify.

Wendell Phillips, Theodore Parker, Charles M. Ellis, and Richard H.
Dana, with a few others, came into the Court room. Mr. Parker and some
others, spoke with Mr. Burns, who sat in the dock ironed, between two
of the Marshal's guard. After a little delay and conference among
these four and others, Mr. Dana interrupted the proceedings and asked
that counsel might be assigned to Mr. Burns, and so a defence allowed.
To this Mr. Thomas, the senior counsel for the Slave-hunters,
objected. But after repeated protests on the part of Mr. Dana and Mr.
Ellis, the Commissioner adjourned the hearing until ten o'clock,
Saturday, May 27th.

On the evening of Friday, May 26th, there was a large and earnest
meeting of men and women at Faneuil Hall. Mr. George R. Russell, of
West Roxbury, presided; his name is a fair exponent of the character
and purposes of the meeting, which Dr. Samuel G. Howe called to order.

Speeches were made and Resolutions passed. Mr. Phillips and Mr.
Parker, amongst others, addressed the meeting; Mr. Parker's speech, as
reported and published in the newspapers, is reprinted in this volume,
page 199. While this meeting was in session there was a gathering of a
few persons about the Court House, the outer doors of which had been
unlawfully closed by order of the Marshal; an attempt was made to
break through them and enter the building, where the Supreme Court of
Massachusetts was sitting engaged in a capital case; and the Courts of
this State must always sit with open doors. In the strife one of the
Marshal's guard, a man hired to aid in the Slave-hunt, was killed--but
whether by one of the assailing party, or by the Marshal's guard, it
is not yet quite clear. It does not appear from the evidence laid
before the public or the three Grand-Juries, that there was any
connection between the meeting at Faneuil Hall and the gathering at
the Court House.

Saturday, 27th, at ten o'clock, the Commissioner opened his Court
again, his prisoner in irons before him. The other events are well
known. Mr. Burns was taken away to Slavery on Friday, June 2d, by an
armed body of soldiers with a cannon.

The May Term of the Circuit Court at Boston began on the 15th of that
month, and the Grand-Jury for that term had already been summoned.
Here is the list:--

UNITED STATES CIRCUIT COURT, }
  MASSACHUSETTS DISTRICT.    }

May Term, 1854. ss. May 15, 1854.

GRAND-JURY.

 1 Sworn.      Isaac Tower,            Randolph,  Foreman.

 2   "         Elbridge G. Manning,    Andover.

 3   "         Asa Angier,                "

 4   "         Ballard Lovejoy,           "

 5   "         Levi Eldridge,          Chatham.

 6   "         Isaac B. Young,            "

 7   "         Josiah Peterson,        Duxbury.

 8   "         James Curtis,              "

 9 Not Sworn.  William Amory,          Boston,    Excused first day.
                                                  Member of the bar.

10 Sworn.      James P. Bush,             "       Absent June 28th.

11   "         John Clark,                "

12   "         Charles H. Mills,          "

13   "         William N. Tyler,          "

14   "         Samuel Weltch,             "

15   "         Reuben Nichols,         Reading.

16   "         Benjamin M. Boyce,         "

17   "         Ephraim F. Belcher,     Randolph.

18   "         Thomas S. Brimblecome,  Fairhaven.

19   "         Obed F. Hitch,             "

20   "         Lowell Claflin,         Hopkinton.

21   "         William Durant,         Leominster.

22   "         Charles Grant,             "

23   "         Jeremiah B. Luther,     Douglas.

On the 7th of June, Judge Curtis gave to this Grand-Jury his
charge.[2] In that he spoke of the enforcement of the fugitive slave
bill; and he charged the Jury especially and minutely upon the Statute
of the United States of 1790, in relation to resisting officers in
service of process as follows.

[Footnote 2: The charge is printed below, at page 170.]

That not only those who are present and actually obstruct, resist, and
oppose, and all who are present leagued in the common design, and so
situated as to be able in case of need, to afford assistance to those
actually engaged; but all who, though absent, did procure, counsel,
command, or abet others to commit the offence; and all who, by
indirect means, by _evincing an express liking, approbation, or assent
to the design, were liable as principals_. And he added, "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," and _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_.

That Jury remained in session a few weeks: pains were taken to induce
them to find bills against the speakers at Faneuil Hall; but they
found no indictment under the law of 1790, or that of 1850; they were
discharged.

On the 22d of September, _venires_ were issued by order of the Court
for a new Grand-Jury; and, on the 16th of October, twenty-three were
returned by Marshal Freeman, and impanelled. Here is the list of new
Grand-Jurors:--

UNITED STATES CIRCUIT COURT, }
  MASSACHUSETTS DISTRICT.    }

October Term, 1854. ss. October 16, 1854.

GRAND-JURY.

 1 Sworn.      Enoch Patterson, Jr.,   Boston,     Foreman.

 2   "         David Alden,               "

 3   "         Stephen D. Abbott,      Andover.

 4   "         Isaac Beal,             Chatham.

 5   "         John Burrill,           Reading.

 6   "         Mathew Cox,             Boston.

 7   "         Richard B. Chandler,    Duxbury.

 8   "         Charles L. Cummings,    Douglas.

 9   "         Charles Carter,         Leominster.

10   "         Warren Davis,           Reading.

11   "         William W. Greenough,   Boston.

12   "         George O. Hovey,           "

13   "         John M. Howland,        Fairhaven.

14 Sworn.      Manson D. Haws,         Leominster.

15   "         John Holbrook,          Randolph.

Excused.       Nathaniel Johnson,      Hopkinton,  Excused first day,
                                                   October 16th, for
                                                   the term.

16 Sworn.      George Londen,          Duxbury.

17   "         Nathan Moore,           Andover.

18   "         Samuel P. Ridler,       Boston.

19   "         Christopher Ryder,      Chatham.

20   "         John Smith,             Andover.

21   "         Appollos Wales,         Randolph.

22   "         Samuel L. Ward,         Fairhaven.

This Grand-Jury was not charged by the Judge upon the statute of 1790,
or 1850, but was referred to Mr. Hallett, the Attorney, for the
instructions previously given to the Jury that had been discharged,
namely, for his charge of June 7th, already referred to. Mr. William
W. Greenough, brother-in-law of Judge Curtis, was one of the Jury.
They found the following indictment against Mr. Parker:--

     UNITED STATES OF AMERICA.

     _Circuit Court of the United States of America, for the
     District of Massachusetts._

     At a Circuit Court of the United States of America, for the
     District of Massachusetts, begun and holden at Boston, the
     aforesaid District, on the sixteenth day of October, in the
     year of our Lord one thousand eight hundred and fifty-four
     (the fifteenth day of said October being Sunday).

     The Jurors of the United States within the aforesaid
     District, on their oath, present.

     1st. That heretofore to wit,--on the twenty-fourth day of
     May, in the year of our Lord one thousand eight hundred and
     fifty-four, a certain warrant and legal process directed to
     the Marshal of the said District of Massachusetts, or either
     of his Deputies, was duly issued under the hand and seal of
     Edward G. Loring, Esquire, who was then and there a
     Commissioner of the Circuit Court of the United States, for
     said District, which said warrant and legal process was duly
     delivered to Watson Freeman, Esquire, who was then and there
     an officer of the United States, to wit, Marshal of the
     United States, for the said District of Massachusetts, at
     Boston, in the District aforesaid, on the said twenty-fourth
     day of May in the year aforesaid, and was of the purport and
     effect following, that is to say:--

     UNITED STATES OF AMERICA.

     MASSACHUSETTS DISTRICT, SS.

     To the Marshal of our District of Massachusetts, or either
     of his Deputies, _Greeting_:

     In the name of the President of the United States of
     America, you are hereby commanded forthwith to apprehend
     Anthony Burns, a negro man, alleged now to be in your
     District, charged with being a fugitive from labor, and with
     having escaped from service in the State of Virginia, if he
     may be found in your precincts, and have him forthwith
     before me, Edward G. Loring, one of the Commissioners of the
     Circuit Court of the United States for the said District,
     then and there to answer to the complaint of Charles F.
     Suttle, of Alexandria, in the said State of Virginia,
     Merchant, alleging under oath that the said Anthony Burns on
     the twenty-fourth day of March last, did and for a long time
     prior thereto had, owed service and labor to him the said
     Suttle, in the said State of Virginia, under the laws
     thereof, and that, while held to service there by said
     Suttle, the said Burns escaped from the said State of
     Virginia, into the State of Massachusetts; and that the said
     Burns still owes service and labor to said Suttle in the
     said State of Virginia, and praying that said Burns may be
     restored to him said Suttle in said State of Virginia, and
     that such further proceedings may then and there be had in
     the premises as are by law in such cases provided.

     Hereof fail not, and make due return of this writ, with your
     doings therein before me.

     Witness my hand and seal at Boston, aforesaid, this
     twenty-fourth day of May, in the year one thousand eight
     hundred and fifty-four.

     EDWARD G. LORING, _Commissioner_. [L.S.]

     And the Jurors aforesaid do further present, that the said
     warrant and legal process, being duly issued and delivered
     as aforesaid, afterwards to wit, on the twenty-fifth day of
     May, in the year aforesaid, at Boston in said District, the
     said Watson Freeman then and there being an officer of the
     said United States, to wit Marshal of the District
     aforesaid, and in pursuance of said warrant and legal
     process, did then and there arrest the said Anthony Burns
     named therein, and had him before the said Edward G. Loring,
     Commissioner, for examination--and thereupon the hearing of
     the said case was adjourned by the said Commissioner until
     Saturday the twenty-seventh day of May, in the year
     aforesaid, at ten o'clock in the forenoon; and the said
     Marshal, who had so made return of the said Warrant, was
     duly ordered by the said Commissioner to retain the said
     Anthony Burns in his custody, and have him before the said
     Commissioner on the said twenty-seventh day of May in the
     year aforesaid, at the Court House in said Boston, which
     said last-mentioned legal process and order was duly issued
     under the hand of the said Edward G. Loring, Commissioner,
     and was of the purport and effect following, that is to say:

     U.S. OF AMERICA, DISTRICT OF MASSACHUSETTS.

     _Boston, May 25_, 1854.

     And now the hearing of this case being adjourned to
     Saturday, May 27, 1854, 10 A.M., the said Marshal, who has
     made return of this warrant, is hereby ordered to retain the
     said Anthony Burns in his custody, and have him before me at
     the time last mentioned, at the Court House in Boston, for
     the further hearing of the Complaint on which the warrant
     was issued.

     EDWARD G. LORING, _Commissioner_.

     And the Jurors aforesaid do further present, that on the
     twenty-sixth day of May, in the year aforesaid, in pursuance
     of the warrant and legal process aforesaid, and of said
     further legal process and order last mentioned, the said
     Watson Freeman, Marshal as aforesaid, then and there, at the
     said Court House in said Boston, had in his custody the
     person of the said Anthony Burns, in the due and lawful
     execution of the said warrant and legal process, and of the
     said further legal process and order, in manner and form as
     he was therein commanded--and one Theodore Parker, of
     Boston, in said District, Clerk, then and there well knowing
     the premises, with force and arms did knowingly and wilfully
     obstruct, resist, and oppose the said Watson Freeman, then
     and there being an officer of the said United States, to
     wit, Marshal of the said District, in serving and attempting
     to serve and execute the said warrant and legal process, and
     the said further legal process and order in manner and form
     as he was therein commanded, to the great damage of the said
     Watson Freeman, to the great hinderance and obstruction of
     Justice, 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 in such case
     made and provided.

     2d. And the Jurors aforesaid, on their oath aforesaid, do
     further present, that on the twenty-sixth day of May, in the
     year of our Lord one thousand eight hundred and fifty-four,
     at Boston, in said District, one Theodore Parker, of Boston,
     in said District, Clerk, with force and arms, did knowingly
     and wilfully obstruct, resist, and oppose one Watson
     Freeman, who was then and there the Marshal of the United
     States of America, for the District of Massachusetts, and an
     officer of the said United States, in serving and attempting
     to serve and execute a certain warrant and legal process,
     which before that time, to wit, on the twenty-fourth day of
     May, in the year of our Lord one thousand eight hundred and
     fifty-four, had been duly issued under the hand and seal of
     Edward G. Loring, Esquire, a Commissioner of the Circuit
     Court of the United States, for said District of
     Massachusetts, and directed to the Marshal of the District
     of Massachusetts, or either of his deputies, which said
     warrant and legal process the said Freeman, in the due and
     lawful execution of his said office, had then and there in
     his hands and possession for service of the same, and which
     he was then and there serving and attempting to serve and
     execute; which said warrant commanded the said Freeman to
     apprehend one Anthony Burns and to have him forthwith before
     the said Commissioner, then and there to be dealt with
     according to law. Against the peace and dignity of the said
     United States, and contrary to the form of the Statute in
     such case made and provided.

     3d. And the Jurors aforesaid, on their oath aforesaid, do
     further present, that on the twenty-sixth day of May, in the
     year of our Lord one thousand eight hundred and fifty-four,
     at Boston, in said District, the said Theodore Parker, with
     force and arms, did knowingly and wilfully obstruct, resist,
     and oppose one Watson Freeman, who was then and there an
     officer of the said United States, to wit, the Marshal of
     the United States for the said District of Massachusetts, in
     serving and attempting to serve and execute a certain legal
     process which before that time, to wit, on the 25th day of
     May, in the year of our Lord one thousand eight hundred and
     fifty-four, had been duly issued under the hand of Edward G.
     Loring, who was then and there a Commissioner of the Circuit
     Court of the United States, for the said District of
     Massachusetts, and was then and there duly empowered to
     issue said legal process, and which said legal process was
     duly committed for obedience and execution to the said
     Freeman, Marshal as aforesaid, wherein and whereby and in
     pursuance of the command whereof the said Freeman was then
     and there lawfully retaining, detaining, and holding one
     Anthony Burns for the further hearing and determination of a
     certain complaint, upon which a warrant before that time, to
     wit, on the twenty-fourth day of said May, had been duly
     issued under the hand and seal of the said Commissioner, by
     force of which warrant the said Anthony Burns had been duly
     arrested and apprehended by the said Freeman, and in
     execution of the same, on the twenty-fifth day of said May
     had been brought by the said Freeman before the said
     Commissioner.

     4th. And the jurors aforesaid, on their oath aforesaid, do
     further present, that on the twenty-sixth day of May, in the
     year of our Lord one thousand eight hundred and fifty-four,
     at Boston, in said district, the said Theodore Parker, with
     force and arms, did knowingly and wilfully obstruct, resist,
     and oppose one Watson Freeman, who was then and there an
     officer of the said United States, to wit, Marshal of the
     United States, for the District of Massachusetts, in serving
     and attempting to serve and execute a certain warrant and
     legal process, which before that time, to wit, on the
     twenty-fourth day of May, in the year of our Lord one
     thousand eight hundred and fifty-four, had been duly issued
     under the hand and seal of Edward G. Loring, Esquire, a
     Commissioner of the Circuit Court of the United States, for
     the District of Massachusetts, and directed to the Marshal
     of the said District of Massachusetts or either of his
     Deputies, which the said Freeman, in the due and lawful
     execution of his said office, had then and there in his
     hands and possession for service of the same, and which he
     was then and there serving and attempting to serve and
     execute; which warrant commanded the said Freeman to
     apprehend one Anthony Burns, and to have him forthwith
     before the said commissioner and that such further
     proceedings might then and there be had in the premises, as
     are by law in such cases provided,--and also in serving and
     attempting to serve and execute a certain further legal
     process which before that time, to wit, on the twenty-fifth
     day of May, in the year aforesaid, had been duly issued
     under the hand of the said Commissioner, and duly committed
     for obedience and execution to the said Freeman, wherein and
     whereby, and in pursuance of the command whereof, the said
     Freeman was then and there lawfully retaining, detaining,
     and holding the said Anthony Burns for the further hearing
     and determination of a certain complaint upon which the
     warrant aforesaid had been issued by the said Commissioner.

     5th. And the Jurors aforesaid on their oath aforesaid, do
     further present that one Theodore Parker, of Boston, in said
     District, Clerk, on the 26th day of May, in the year of our
     Lord one thousand eight hundred and fifty-four, at Boston,
     in the said District of Massachusetts, with force and arms,
     in and upon one 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,
     for the said District of Massachusetts, and then and there
     also being in the due and lawful discharge of his duties as
     such officer. And so the jurors aforesaid, on their oath
     aforesaid, do say and present that the said Theodore Parker,
     at Boston aforesaid, on the said twenty-sixth day of said
     May, with force and arms assaulted the said Freeman as such
     officer, and knowingly and wilfully obstructed, resisted,
     and opposed him in the discharge of his lawful duties in
     manner and form aforesaid, against the peace and dignity of
     the said United States, and contrary to the form of the
     Statute in such cases made and provided. And the Jurors
     aforesaid, on their oath aforesaid, do further present that
     the said Theodore Parker was first apprehended in said
     District of Massachusetts, after committing the aforesaid
     offence, against the peace and dignity of the said United
     States, and contrary to the form of the statute in such case
     made and provided. A true bill.

     ENOCH PATTERSON, JR., _Foreman_.

     B.F. HALLETT, _United States Attorney for the District of
     Massachusetts_.

Similar indictments were found against Mr. Phillips, Mr. Stowell, Rev.
T.W. Higginson, John Morrison, Samuel T. Proudman, and John C. Cluer.

Mr. Parker was arraigned on Wednesday, November 29th, and ordered to
recognize in bonds of $1,500 for his appearance at that Court, on the
5th of March, 1855. His bondsmen were Messrs. Samuel May, Francis
Jackson, and John R. Manley; his counsel were Hon. John P. Hale, and
Charles M. Ellis, Esq. The other gentlemen were arraigned afterwards
at different times.

After considerable uncertainty about the engagements of Hon. Justice
Curtis, Tuesday, April 3d, was fixed for the commencement of the
trials. At that time there appeared as counsel for the government,
Hon. Benjamin F. Hallett, District Attorney, and Elias Merwin, Esq.,
formerly a law partner of Judge Curtis; on the other side were Hon.
John P. Hale, and Charles M. Ellis, Esq., for Mr. Parker; Wm. L. Burt,
Esq., John A. Andrew, Esq., and H.F. Durant, Esq., counsel for Messrs.
Phillips, Higginson, Stowell, Bishop, Morrison, Proudman, and Cluer.

Mr. Hale, as senior counsel, stated to the court that the counsel for
the defendants in several of the cases had conferred, and
concluded--on the supposition that the Court and Government would
assent to the plan as most for their own convenience, as well as that
of the defendants' counsel--to file the like motion on the different
cases; and, instead of each counsel going over the whole ground for
each case, to divide the matter presented for debate, and for each to
discuss some particular positions on behalf of them all. This was
assented to; and motions, of which the following is a copy, were filed
in the several cases:--

     CIRCUIT COURT OF THE UNITED STATES, MASSACHUSETTS DISTRICT,
     SS.

     _United States by Indictment_ v. _Theodore Parker._

     And now said Theodore Parker comes and moves that the
     indictment against him be quashed, because,

     "1. The writ of venire for the jury that found said
     indictment was directed to and returned by Watson Freeman,
     the Marshal, who was not an indifferent person, and it was
     not served and returned as the law directs.

     "2. Because said Jury was not an impartial Jury of the
     District, designated as the laws require, but the jury
     Districts for this court embrace but a portion of the
     District and of the population, and said jury was in fact
     chosen and designated from but a fraction of the District
     and contrary to law.

     "3. Because the matters and things alleged in said
     indictment do not constitute any crime under the statute on
     which said indictment is framed, the said statute not
     embracing them, or being, so far as it might embrace them,
     repealed by the statute of eighteen hundred and fifty.

     "4. Because said indictment does not allege and set forth
     fully and sufficiently the authority and the proceedings
     whereon the alleged warrant and order were based, or facts
     sufficient to show that the alleged process and order were
     lawfully issued by any person duly authorized, and his
     authority and jurisdiction, and that the same were within
     such jurisdiction, and issued by the authority of the law,
     and originated, issued, and directed as the law prescribes;
     said warrant and order not being alleged to have issued from
     any court or tribunal of general or special jurisdiction,
     but by a person vested with certain specific statute
     authority.

     "5. Because said indictment and the several counts thereof
     are bad on the face of them, as follows, viz.:--

     "First, it nowhere appearing that the same were found by a
     grand-jury, because the second and third counts do not
     conclude, against the form of the statute, and have no
     conclusion, because the third and fourth counts do not set
     forth the estate, degree, or mystery of the person therein
     charged.

     "Because said indictment and the counts thereof are
     repugnant and inconsistent, the same being based on an
     alleged obstruction, resistance, and opposition to the
     service of an action, order, or warrant, which is therein
     averred to have been already served, executed, and returned.

     "Because the first and fifth counts are double.

     "Because the alleged order of May 25th, referred to therein,
     was a void and illegal, order.

     "Because, if the alleged warrant was served as therein
     alleged, said Watson Freeman did not, and by law could not
     thereafter, hold the person described therein, under any
     process or order.

     "And because the same do not set forth and allege fully and
     specifically the acts charged to be offences against the
     statute, so as to inform said party charged, of the nature
     and cause of the accusation.

     "6. Because the warrant set forth and referred to therein
     was void on its face, and issued from and ran into a
     jurisdiction not authorized by law, and directed the arrest
     of a person without legal cause, and because said indictment
     is otherwise bad, uncertain, and insufficient."

Mr. Wm. L. Burt commenced the argument of the motions, and presented
several of the points. He was followed by Mr. C.M. Ellis, J.A. Andrew,
and H.F. Durant, who severally discussed some of the grounds of the
motions.

Elias Merwin, Esquire, and Mr. Attorney Hallett, replied.

The Court stated that they did not wish to hear Hon. John P. Hale, who
was about to rejoin and close in support of the motion, and decided
that the allegation, on the indictment, that Edward G. Loring was a
Commissioner of the Circuit Court of the United States for said
District, was not a legal averment that he was such a Commissioner as
is described in the bill of 1850, and therefore the indictments were
bad.

The Court said they supposed it to be true that Mr. Loring was such a
Commissioner, and that his authority could be proved by producing the
record of his appointment; that they did not suppose the absence of
this averment could be of any practical consequence to the defendants,
so far as respected the substantial merits of the cases; and it was
true the objection to the indictment was "technical;" but they held it
sufficient, notwithstanding the averment that the warrant was "_duly
issued_," and ordered the indictment against Stowell to be quashed. On
every other point, save that that the Court could properly construct
the Jury _roster_ and return the Jury from a portion of the District,
the Judge said they would express no opinion.

Mr. Hallett insisted on his right to enter a _nolle prosequi_ in the
other cases; and the Judges decided that, though all the cases had
been heard upon the motion, yet as it could make no difference whether
an entry were made that this indictment be quashed, or an entry of
_nolle prosequi_, the Attorney might enter a _nolle prosequi_ if he
chose to do so _then_, before the Court passed any order on the
motions.

Mr. Hallett accordingly entered a _nolle prosequi_ in all the other
cases, and the whole affair was quashed.[3]

[Footnote 3: See Law Reporter for June, 1855.]

DEFENCE.

MAY IT PLEASE THE COURT:

GENTLEMEN OF THE JURY.--It is no trifling matter which comes before
you this day. You may hereafter decide on millions of money, and on
the lives of your fellow men; but it is not likely that a question of
this magnitude will ever twice be brought before the same jurymen.
Opportunities to extend a far-reaching and ghastly wickedness, or to
do great service for mankind, come but seldom in any man's life. Your
verdict concerns all the people of the United States; its influence
will reach to ages far remote, blessing or cursing whole generations
not yet born. The affair is national in its width of reach,--its
consequences of immense duration.

In addressing you, Gentlemen, my language will be more didactic than
rhetorical, more like a lecture, less like a speech; for I am not a
lawyer but a minister, and do not aim to carry a Measure, which with
you will go of its own accord, so much as to set forth a Principle
that will make such prosecutions as impossible hereafter, as a
conviction now is to-day.

Gentlemen, I address you provisionally, as Representatives of the
People. To them, my words are ultimately addressed,--to the People of
the Free States of America. I must examine many things minutely, not
often touched upon in courts like this. For mine is a Political Trial;
I shall treat it accordingly. I am charged with no immoral act--with
none even of selfish ambition. It is not pretended that I have done a
deed, or spoken a word, in the heat of passion, or vengeance, or with
calculated covetousness, to bring money, office, or honor, to myself
or any friend. I am not suspected of wishing to do harm to man or
woman; or with disturbing any man's natural rights. Nay, I am not even
charged with such an offence. The Attorney and the two Judges are of
one heart and mind in this prosecution; Mr. Hallett's "Indictment" is
only the beast of burthen to carry to its own place Mr. Curtis's
"Charge to the Grand-Jury," fit passenger for fitting carriage! The
same tree bore the Judge's blossom in June, and the Attorney's fruit
in October,--both reeking out the effluvia of the same substance. But
neither Attorney nor Judge dares accuse me of ill-will which would
harm another man, or of selfishness that seeks my own private
advantage. No, Gentlemen of the Jury, I am on trial for my love of
Justice; for my respect to the natural Rights of Man; for speaking a
word in behalf of what the Declaration of Independence calls the
"self-evident" Truth,--that all men have a natural, equal, and
unalienable Right to Life, Liberty, and the pursuit of Happiness. I am
charged with words against what John Wesley named, the "Sum of all
Villanies," against a national crime so great, that it made
freethinking Mr. Jefferson, with all his "French Infidelity,"
"tremble" when he remembered "that God is just." I am on trial for my
manly virtue,--a Minister of the Christian Religion on trial for
keeping the Golden Rule! It is alleged that I have spoken in Boston
against kidnapping in Boston; that in my own pulpit, as a minister, I
have denounced Boston men for stealing my own parishioners; that as a
man, in Faneuil Hall, the spirit of James Otis, of John Hancock, and
three Adams's about me, with a word I "obstructed" the Marshal of
Boston and a Boston Judge of Probate, in their confederated attempts
to enslave a Boston man. When the Government of the United States has
turned kidnapper, I am charged with the "misdemeanor" of appealing
from the Atheism of purchased officials to the Conscience of the
People; and with rousing up Christians to keep the golden rule, when
the Rulers declared Religion had nothing to do with politics and there
was no Law of God above the fugitive slave bill!

Such are the acts charged. Gentlemen of the Jury, you are summoned
here to declare them a Crime, and then to punish me for this
"offence!" You are the Axe which the Government grasps with red hand
to cleave my head asunder. It is a trial where Franklin Pierce,
transiently President of the United States, and his official
coadjutors,--Mr. Caleb Cushing, Mr. Benj. R. Curtis, and Mr. Benj. F.
Hallett,--are on one side, and the People of the United States on the
other. As a Measure, your decision may send me to jail for twelve
months; may also fine me three hundred dollars. To me personally it is
of very small consequence what your verdict shall be. The fine is
nothing; the imprisonment for twelve months--Gentlemen, I laugh at it!
Nay, were it death, I should smile at the official gibbet. A verdict
of guilty would affix no stain to my reputation. I am sure to come out
of this trial with honor--it is the Court that is sure to suffer
loss--at least shame. I do not mean the Court will ever feel remorse,
or even shame, for this conduct; I am no young man now, I know these
men,--but the People are sure to burn the brand of shame deep into
this tribunal. The blow of that axe, if not parried, will do me no
harm.

But it is not I, merely, now put to trial. Nay, it is the unalienable
Rights of Humanity, it is truths self-evident. For on the back of that
compliant Measure, unseen, there rides a Principle. The verdict
expected of you condemns liberal institutions: all Religion but
priestcraft--the abnegation of religion itself; all Rights but that to
bondage--the denial of all rights. The word which fines me, puts your
own purse in the hands of your worst enemies; the many-warded key
which shuts me in jail, locks your lips forever--your children's lips
forever. No complaint against oppression hereafter! Kidnapping will go
on in silence, but at noonday, not a minister stirring. Meeting-houses
will be shut; all court houses have a loaded cannon at their door,
chains all round them, be stuffed with foreign soldiers inside, while
commissioners swear away the life, the liberty, and even the Estate of
the subjected "citizens." All Probate Judges will belong to the family
of man-stealers. Faneuil Hall will be shut, or open only for a "Union
Meeting," where the ruler calls together his menials to indorse some
new act of injustice,--only creatures of the Government, men like the
marshal's guard last June, allowed to speak words paid for by the
People's coward sweat and miserable blood. The blow which smites my
head will also cleave you asunder from crown to groin.

Your verdict is to vindicate Religion with Freedom of Speech, and
condemn the stealing of men; or else to confirm Kidnapping and condemn
Religion with Freedom of Speech. You are to choose whether you will
have such men as Wendell Phillips for your advisers, or such as
Benjamin F. Hallett and Benjamin R. Curtis for your masters, with the
marshal's guard, for their appropriate servants. Do you think I doubt
how you will choose?

Already a power of iniquity clutches at your children's throat; stabs
at their life--at their soul's life. I stand between the living tyrant
and his living victim; aye, betwixt him and expected victims not yet
born,--your children, not mine. I have none to writhe under the
successful lash which tyrants now so subtly braid therewith, one day,
to scourge the flesh of well-descended men. I am to stand the champion
of human Rights for generations yet unborn. It is a sad distinction!
Hard duties have before been laid on me,--none so obviously demanding
great powers as this. Whereto shall I look up for inspiring aid? Only
to Him who gave words to the slow tongue of Moses and touched with
fire Esaias' hesitating lips, and dawned into the soul of tent-makers
and fishermen with such great wakening light, as shining through them,
brought day to nations sitting in darkness, yet waiting for the
consolation. May such Truth and Justice enable me also, to speak a
testimony unto the Gentiles; He who chose the weak things, to bring to
nought the mighty, may not despise such humble services as mine.

Gentlemen of the Jury, my ministry deals chiefly with the Laws of God,
little with the statutes of men. My manhood has been mainly passed in
studying absolute, universal truth, teaching it to men, and applying
it to the various departments of life. I have little to do with courts
of law. Yet I am not now altogether a stranger to the circuit court
room of the United States, having been in it on five several occasions
before.

1. A Polish exile,--a man of famous family, ancient and patrician
before Christendom had laid eyes on America, once also of great
individual wealth, a man of high rank alike acquired and inherited,
once holding a high place at the court of the Czar,--became a fugitive
from Russian despotism, seeking an asylum here; he came to the circuit
court room to lecture on the Roman Law. I came to contribute my two
mites of money, and receive his wealth of learning.

2. The next time, I came at the summons of Thomas Sims. For a creature
of the slave-power had spontaneously seized that poor and friendless
boy and thrust him into a dungeon, hastening to make him a slave,--a
beast of burthen. He had been on his mock trial seven days, and had
never seen a Judge, only a commissioner, nor a Jury; no Court but a
solitary kidnapper. Some of his attendants had spoken of me as a
minister not heedless of the welfare and unalienable rights of a black
man fallen among a family of thieves. I went to the court house.
Outside it was belted with chains. In despotic Europe I had seen no
such spectacle, save once when the dull tyrant who oppressed Bavaria
with his licentious flesh, in 1844 put his capital in a brief state of
siege and chained the streets. The official servant of the kidnapper,
club in hand, a policeman of this city, goaded to his task by Mayor
Bigelow and Marshal Tukey,--men congenitally mingled in such
appropriate work,--bade me "Get under the chain." I pressed it down
and went over. The Judges of our own Supreme Court, _they went
under_,--had gone out and in, beneath the chain! How poetry mingles
with fact! The chain was a symbol, and until this day remaineth the
same chain, untaken away in the reading of the fugitive slave bill;
and when the law of Massachusetts is read, the chain is also upon the
neck of that court! Within the court house was full of armed men. I
found Mr. Sims in a private room, illegally, in defiance of
Massachusetts law, converted into a jail to hold men charged with no
crime. Ruffians mounted guard at the entrance, armed with swords,
fire-arms, and bludgeons. The door was locked and doubly barred
besides. Inside the watch was kept by a horrid looking fellow, without
a coat, a naked cutlass in his hand, and some twenty others, their
mouths nauseous with tobacco and reeking also with half-digested rum
paid for by the city. In such company, I gave what consolation
Religion could offer to the first man Boston ever kidnapped,--consolations
which took hold only of eternity, where the servant is free from his
master, for there the wicked cease from troubling. I could offer him
no comfort this side the grave.

3. I visited the United States court a third time. A poor young man
had been seized by the same talons which subsequently griped Sims in
their poison, deadly clutch. But that time, wickedness went off
hungry, defeated of its prey; "for the Lord delivered him out of their
hands," and Shadrach escaped from that Babylonish furnace, heated
seven times hotter than its wont: no smell of fire had passed on him.
But the rescue of Shadrach was telegraphed as "treason." The innocent
lightning flashed out the premeditated and legal lie,--"it is levying
war!" What offence it was in that Fourth One who walked with the
Hebrew children, "making their good confession," and sustained the old
Shadrach, Meshach, and Abednego, I know not. But the modern countrymen
of the African Shadrach, charged with some great crime, were haled
into this court to be punished for their humanity! I came to look on
these modern Angels of the Deliverance, to hear counsel of Mr. Dana,
then so wise and humane, and to listen to the masterly eloquence which
broke out from the great human heart of my friend, Mr. Hale, and
rolled like the Mississippi, in its width, its depth, its beauty, and
its continuous and unconquerable strength.

4. The fourth time, a poor man had been kidnapped, also at night, and
forced into the same illegal jail. He sat in the dock--an innocent
man, to be made into a beast. The metamorphosis had begun;--he was
already in chains and his human heart seemed dead in him; sixty
ruffians were about him, aiding in this drama, hired out of the
brothels and rum-shops for a few days, the lust of kidnapping serving
to vary the continual glut of those other and less brutal appetites of
unbridled flesh. While that "trial" lasted, whoredom had a Sabbath
day, and brawlers rested from their toil. Opposite sat the Boston
Judge of Probate, and the Boston District Attorney,--the Moses and
Elias of this inverted transfiguration; there sat the marshal, two
"gentlemen" from Virginia, claiming that a Boston man was their beast
of burthen, owing service and labor in Richmond; two "lawyers,"
"members of the Suffolk bar," pistols in their coats, came to support
the allegation and enforce the claim. Honorable men stood up to defend
him. There is one of them,--to defend me [Charles M. Ellis.] You know
very well the rest of that sad story,--the mock trial of Anthony Burns
lasted from May 25th till June 2d. I was here in all the acts of that
Tragedy. My own life was threatened; friend and foe gave me public or
anonymous warning. I sat between men who had newly sworn to kill me,
my garments touching theirs. The malaria of their rum and tobacco was
an offence in my face. I saw their weapons, and laughed as I looked
those drunken rowdies in their coward eye. They touch me!

5. The fifth time I came here at the summons of an officer of this
court,--very politely delivered, let me say it to his credit,--indicted
and arrested for a "misdemeanor." I gave bail and withdrew.

6. The sixth time,--Gentlemen,--it is the present, whereof I shall
erelong have much to say.

At the first visit I found only scholarly and philanthropic gentlemen,
coming out of sympathy with a Polish exile, a defeated soldier of
freedom, from his broken English to learn sound Roman Law. On each of
the other visits I have been in quite different company. I have
invariably met this Honorable Court, its kinsfolk and its most
intimate friends,--some member of the family of the distinguished
Judge, now fitly presiding over this trial.

1. It was Mr. George T. Curtis, the only brother of the honorable
Justice now on the bench,--born of the same mother and father,--who
had the glory of kidnapping Mr. Sims; it was he who seized Shadrach,
and gave such witness against one of the Angels of the Deliverance,
and then came back and enlarged his testimony; it was he who declared
the rescue an act of "treason;" he who hung the court house in chains,
and brought down the pliant neck of the Massachusetts Judges beneath
that symbolic line of linked fetters long drawn out. To what weak
forces will such necks bow when slavery commands!

2. It was the honorable Judge now on the distinguished bench who tried
men for the rescue of Shadrach. How he tried them is well known.

3. It was Edward G. Loring, another of this family so distinguished,
who kidnapped Mr. Burns and held him in irons; he whose broom swept up
together the marshal's guard; he who advised Mr. Burns's counsel to
make no defence,--"put no obstructions in the way of his going back,
as he probably will;" he who, in the darkness of midnight, sought to
sell his victim, before he had examined the evidence which might prove
him a free man; he who delivered him up as a slave, against evidence
as against law.

4. Another of the same family, William W. Greenough, brother-in-law of
Hon. Judge Curtis, was one of the grand-jury which found the
indictment against me, and "the most active of all in that work."

5. When I came here on the 29th of last November, the Hon. Judge
Curtis sat on the bench and determined the amount of my bail, and the
same eye which had frowned with such baleful aspect on the rescuers of
Shadrach, quailed down underneath my look and sought the ground.

In thus mentioning my former visits to the court, I but relate the
exploits of the Hon. Justice Curtis, of his kinsfolk and friends,
adding to their glory and their renown. Their chief title to
distinction rests on their devotion to the fugitive slave bill. It and
their honor are "one and inseparable." Once only humanity and good
letters brought me here, I met only scholars and philanthropists; on
five other occasions, when assaults on freedom compelled my
attendance, I have been confronted and surrounded with the loyalty of
the distinguished Judge and his kinsfolk and friends, valiantly and
disinterestedly obeying the fugitive slave bill "with alacrity;"
patriotically conquering their prejudices against man-stealing--if
such they ever had;--and earning for themselves an undying reputation
by "saving the Union" from Justice, Domestic Tranquillity, general
Welfare, and the Blessings of Liberty.

If I am to be arraigned for any act, I regard it as a special good
fortune that I am charged with such deeds, with seeking to arouse the
noblest emotions of Human Nature; and by means of the grandest Ideas
which Human History has brought to light. I could not have chosen
nobler deeds in a life now stretching over nearly half a hundred
years. I count it an honor to be tried for them. Nay, it adds to my
happiness to look at the Court which is to try me--for if I were to
search all Christendom through, nay, throughout all Heathendom, I know
of no tribunal fitter to try a man for such deeds as I have done. I am
fortunate in the charges brought; thrice fortunate in the judges and
the attorney,--the Court which is to decide;--its history and
character are already a judgment.

6. For my sixth visit, I was recognized to appear on the fifth of
March, 1855--the eighty-fifth anniversary of the Boston Massacre. I
might have been bound over to any other of the great days of American
history--22d of December, 19th of April, 17th of June, or the 4th of
July. But as I am the first American ever brought to trial for a
speech in Faneuil Hall against kidnapping; as I am the first to be
tried under the act of 1790 for "obstructing an officer" with an
argument, committing a "misdemeanor" by a word which appeals to the
natural justice of mankind, so there could not perhaps be a fitter
time chosen. For on the fifth of March, 1770, British despotism also
delivered its first shot into the American bosom. Not far from this
place the hand of George III. wounded to death five innocent citizens
of Boston,--one of them a negro. It was the first shot Britain ever
fired into the body of the American people, then colonial subjects of
the king-power. That day the fire was not returned,--only with ringing
of bells and tumult of the public, with words and resolutions. The
next day that American blood lay frozen in the street. Soon after the
British government passed a law exempting all who should aid an
officer in his tyranny from trial for murder in the place where they
should commit their crime. Mr. Toucey has humbly copied that precedent
of despotism. It was very proper that the new tyranny growing up here,
should select that anniversary to shoot down freedom of thought and
speech among the subjects of the slave-power. I welcomed the omen. The
Fifth of March is a red-letter day in the calendar of Boston. The
Court could hardly have chosen a better to punish a man for a thought
and a word, especially a Boston man, for such a word in Faneuil
Hall--a word against man-stealing. But I knew the case would never
come to trial on that day--of course it was put off.

Mr. Sims and Mr. Burns were accused of no crime but birth from a
mother whom some one had stolen. They had only a mock trial, without
due process of law, with no judge, no jury, no judicial officer. But
I, accused of a grave offence, am to enjoy a trial with due process of
law. It is an actual judge before me and another judge at his side,
both judicial officers known to the constitution. I know beforehand
the decision of the court--its history is my judgment. Justice
Curtis's Charge of last June, would make my daily talk a
"misdemeanor," my public preaching and my private prayers a "crime,"
nay, my very existence is constructively an "obstruction" to the
marshal. On that side my condemnation is already sure.

But there is another element. Gentlemen of the Jury, the judges and
attorney cannot lay their hand on me until you twelve men with one
voice say, "Yes! put him in jail." In the mock trial of Sims and Burns
it was necessary to convince only a single official of the United
States Court, a "ministerial" officer selected and appointed to do its
inferior business, a man who needed no conviction, no evidence but the
oath of a slave-hunter and the extorted "admission" of his victim, an
official who was to have ten dollars for making a slave, five only for
setting free a man! But you are a Massachusetts Jury, not of purchased
officials, but of honest men. I think you have some "prejudices" to
conquer in favor of justice. It has not appeared that you are to be
paid twice as much for sending me to jail, as for acquitting me of the
charge. I doubt that you have yet advised my counsel to make no
defence, "put no obstructions in the way" of my being sent to jail as
"he probably will."

Gentlemen, a United States Commissioner has his place on condition
that he performs such services as his masters "require." These United
States Judges have their seat in consequence of services rendered to
the ruling power of America, and for others of like sort yet to be
paid to the stealers of men. Other rewards shine before them alluring
to new service,--additional salary can pay additional alacrity. But
you, Gentlemen, are not office-holders nor seekers of office, not
hoping to gain money, or power, or honor, by any wickedness. You are
to represent the unsophisticated Conscience of the People,--not the
slave-power, but the power of Freedom.

It is to you I shall address my defence! MY defence? No, Gentlemen,
YOUR defence, the defence of your own Rights, inherent in your
national Institutions as Americans, ay, in your Nature as Men. It is a
singular good fortune that to you, as judges, I am pleading your own
cause. You have more interest at stake than I. For at death my name
will perish, while children and children's children, I trust, will
gently mingle your memories in that fair tide of human life which
never ends.

So much have I said by way of introduction, treating only of the
accidents pertaining to this case. I will now come to the Primary
Qualities and Substance thereof.

This is a Political Trial. In _form_, I am charged with violating a
certain statute never before applied to actions like mine; never meant
to apply to such actions; not legally capable of such application. But
in _fact_, my offence is very different from what the indictment
attempts to set forth. The judges know this; the attorney knows it,
and "never expected to procure a conviction." It is your cause, even
more than mine, that I plead. So it concerns you to understand the
whole matter thoroughly, that you may justly judge our common cause.
To make the whole case clear, I will _land_ it out into four great
parcels of matter, which your mind can command at once, and then come
to the details of each, ploughing it all over before your face, furrow
by furrow. I shall speak,

I. Of the State of Affairs in America which has led to this
prosecution,--the Encroachments of a Power hostile to Democratic
Institutions.

II. Of the Mode of Operation pursued by this Encroaching Power, in
other times and in our own,--of Systematic Corruption of the
Judiciary.

III. Of the great Safeguard which has been found serviceable in
protecting Democratic Institutions and the Rights of Man they are
designed to defend,--of the Trial by Jury.

IV. Of the Circumstances of this special case, UNITED STATES _versus_
THEODORE PARKER.

I shall speak of each in its order, and begin at the head.

I. OF THE STATE OF AFFAIRS IN AMERICA, WHICH HAS LED TO THIS
PROSECUTION--THE ENCROACHMENTS OF A POWER HOSTILE TO DEMOCRATIC
INSTITUTIONS.

In a republic where all emanates from the People, political
institutions must have a Basis of Idea in the Nation's Thought, before
they can acquire a Basis of Fact in the Force of the Nation. Now in
America there are two diverse Ideas recognized as principles of
Action--the Idea of Freedom and the Idea of Slavery. Allow me to read
my analysis and description of each.

     The Idea of Freedom first got a national expression on the
     Fourth of July, 1776. Here it is. I put it in a philosophic
     form. There are five points to it.

     First, All men are endowed by their Creator with certain
     natural rights, amongst which is the right to life, liberty,
     and the pursuit of happiness.

     Second, These rights are unalienable; they can be alienated
     only by the possessor thereof; the father cannot alienate
     them for the son, nor the son for the father; nor the
     husband for the wife, nor the wife for the husband; nor the
     strong for the weak, nor the weak for the strong; nor the
     few for the many, nor the many for the few; and so on.

     Third, In respect to these, all men are equal; the rich man
     has not more, and the poor less; the strong man has not
     more, and the weak man less:--all are exactly equal in these
     rights, however unequal in their powers.

     Fourth, It is the function of government to secure these
     natural, unalienable, and equal rights to every man.

     Fifth, Government derives all its divine right from its
     conformity with these ideas, all its human sanction from the
     consent of the governed.

     That is the Idea of Freedom. I used to call it "the American
     Idea;" that was when I was younger than I am to-day. It is
     derived from human nature; it rests on the immutable Laws of
     God; it is part of the natural religion of mankind. It
     demands a government after natural Justice, which is the
     point common between the conscience of God and the
     conscience of mankind; it is the point common also between
     the interests of one man and of all men.

     Now this government, just in its substance, in its form must
     be democratic: that is to say, the government of all, by
     all, and for all. You see what consequences must follow from
     such an idea, and the attempt to reënact the Law of God into
     political institutions. There will follow the freedom of the
     people, respect for every natural right of all men, the
     rights of their body and of their spirit--the rights of mind
     and conscience, heart and soul. There must be some
     restraint--as of children by their parents, as of bad men by
     good men; but it will be restraint for the joint good of all
     parties concerned; not restraint for the exclusive benefit
     of the restrainer. The ultimate consequence of this will be
     the material and spiritual welfare of all--riches, comfort,
     noble manhood, all desirable things.

     That is the Idea of Freedom. It appears in the Declaration
     of Independence; it reappears in the Preamble to the
     American Constitution, which aims "to establish Justice,
     insure domestic tranquillity, provide for the common
     defence, promote the general welfare, and secure the
     blessings of Liberty." That is a religious idea; and when
     men pray for the "Reign of Justice" and the "Kingdom of
     Heaven" to come on earth politically, I suppose they mean
     that there may be a Commonwealth where every man has his
     natural rights of mind, body, and estate.

     Next is the Idea of Slavery. Here it is. I put it also in a
     philosophic form. There are three points which I make.

     First, There are no natural, unalienable, and equal rights,
     wherewith men are endowed by their Creator; no natural,
     unalienable, and equal right to life, liberty, and the
     pursuit of happiness.

     Second, There is a great diversity of powers, and in virtue
     thereof the strong man may rule and oppress, enslave and
     ruin the weak, for his interest and against theirs.

     Third, There is no natural law of God to forbid the strong
     to oppress the weak, and enslave and ruin the weak.

     That is the Idea of Slavery. It has never got a national
     expression in America; it has never been laid down as a
     Principle in any act of the American people, nor in any
     single State, so far as I know. All profess the opposite;
     but it is involved in the Measures of both State and Nation.
     This Idea is founded in the selfishness of man; it is
     atheistic.

     The idea must lead to a corresponding government; that will
     be unjust in its substance,--for it will depend not on
     natural right, but on personal force; not on the
     Constitution of the Universe, but on the compact of men. It
     is the abnegation of God in the universe and of conscience
     in man. Its form will be despotism,--the government of all,
     by a part, for the sake of a part. It may be a single-headed
     despotism, or a despotism of many heads; but whether a
     Cyclops or a Hydra, it is alike "the abomination which
     maketh desolate." Its ultimate consequence is plain to
     foresee--poverty to a nation, misery, ruin.

     These two Ideas are now fairly on foot. They are hostile;
     they are both mutually invasive and destructive. They are in
     exact opposition to each other, and the nation which
     embodies these two is not a figure of equilibrium. As both
     are active forces in the minds of men, and as each idea
     tends to become a fact--a universal and exclusive fact,--as
     men with these ideas organize into parties as a means to
     make their idea into a fact,--it follows that there must not
     only be strife amongst philosophical men about these
     antagonistic Principles and Ideas, but a strife of practical
     men about corresponding Facts and Measures. So the quarrel,
     if not otherwise ended, will pass from words to what seems
     more serious; and one will overcome the other.

     So long as these two Ideas exist in the nation as two
     political forces, there is no national unity of Idea, of
     course no unity of action. For there is no centre of gravity
     common to Freedom and Slavery. They will not compose an
     equilibrious figure. You may cry "Peace! Peace!" but so long
     as these two antagonistic Ideas remain, each seeking to
     organize itself and get exclusive power, there is no peace;
     there can be none.

     The question before the nation to-day is, Which shall
     prevail--the Idea and Fact of Freedom, or the Idea and the
     Fact of Slavery; Freedom, exclusive and universal, or
     Slavery, exclusive and universal? The question is not
     merely, Shall the African be bond or free? but, Shall
     America be a Democracy or a Despotism? For nothing is so
     remorseless as an idea, and no logic is so strong as the
     historical development of a national idea by millions of
     men. A measure is nothing without its Principle. The Idea
     which allows Slavery in South Carolina will establish it
     also in New England. The bondage of a black man in
     Alexandria imperils every white woman's daughter in Boston.
     You cannot escape the consequences of a first Principle more
     than you can "take the leap of Niagara and stop when
     half-way down." The Principle which recognizes Slavery in
     the Constitution of the United States would make all America
     a Despotism, while the Principle which made John Quincy
     Adams a free man would extirpate Slavery from Louisiana and
     Texas. It is plain America cannot long hold these two
     contradictions in the national consciousness. Equilibrium
     must come.[4]

[Footnote 4: See this statement in Mr. Parker's Additional Speeches,
Addresses, and Occasional Sermons. Boston, 1855, vol. ii. p. 250, _et
seq._]

These two ideas are represented by two parties which aim at the
ultimate organization of their respective doctrines, the party
indicating the special tendency towards Democracy or Despotism. The
Party of Freedom is not yet well organized; that of Slavery is in
admirable order and discipline. These two parties are continually at
war attended with various success.

1. In the individual States of the North, since the Revolution, the
Party of Freedom has gained some great victories; it has abolished
Personal Slavery in every northern State, and on a deep-laid
foundation has built up Democratic Institutions with well proportioned
beauty. The Idea of Freedom, so genial to the Anglo-Saxon, so welcome
to all of Puritanic birth and breeding, has taken deep root in the
consciousness of the great mass of the People at the North. In the
severe simplicity of national deduction they will carry it to logical
conclusions not yet foreseen by human providence. The free States are
progressively democratic.

But in all the Northern States, and more especially in its
cities,--and here chiefly among the men of exclusive intellectual
culture and the votaries of commerce and its riches,--there are
exceptional men who embrace the Idea of Slavery and belong to its
Party. They know no law higher than the transient interest of their
politics or their commerce, their ease or ambition. They may not
theoretically hate the People, but they so love their own money, their
own ease or pleasure, that practically they oppose what promotes the
welfare of mankind, and seek their own personal advancement to the
injury of the human race. These are Northern men with Southern
"Principles." They have their Journals too well known in Boston to
need mention here.

2. In the individual States of the South, the Idea and Party of
Slavery has also gained great victories and been uniformly successful;
it has extended and strengthened personal slavery, which has now a
firmer hold in the minds of the controlling classes of Southern
men,--the rich and "educated,"--than in 1776, or ever before. The
Southern States are progressively despotic.

Still, in all the Southern States there are exceptional men, hostile
to slavery,--the intelligent and religious from conviction, others
from mere personal interest. These are Southern men with Northern
Principles. They are much oppressed at home--kept from political
advancement or social respectability, as much as democrats would be at
Rome or Naples,--have no journals and little influence.

3. In the Federal Government, the warfare goes on, each party seeking
for mastery over the whole United States--the contest is carried on in
Congress, in all the local legislatures; newspapers, speeches, even
sermons, resound with the din of battle. See what forces contend and
with what results.

The nation lives by its productive industry, whereof there are these
five chief departments:--Hunting and Fishing, the appropriation of the
spontaneous live products of the land and sea; Agriculture, the use of
the productive forces of the earth's surface; Mining, the
appropriation of the metallic products of her bosom; Manufactures, the
application of toil and thought to the products of Hunting and
Fishing, Mining and Agriculture; Commerce, the exchange of value,
distribution of the products of these four departments of industry,
directly productive.

Hunting and Fishing, Mining, Manufactures, Commerce, are mainly in the
hands of Northern men--the South is almost wholly Agricultural. Her
wealth consists of land and slaves. In 1850 the fifteen slave States
had not fourteen hundred millions of other property. In the South
property, with its consequent influence, is in few hands--in the North
it is wide spread.

Now the few controlling men of the South, the holders of land and
slaves, have Unity of pecuniary Interest--the support of Slavery as a
local measure,--for it is the source of their material wealth, and
also a consequent Unity of political Idea, the support of Slavery as a
universal Principle, for it is the source likewise of their political
power. Accordingly the South presents against the North an even and
well-disciplined front of veteran soldiers, is always hostile to
Freedom, and as her "best educated" men devote much time to politics,
making it the profession of their whole lives, it is plain they become
formidable antagonists.

But the North has a great variety of conflicting interests, a great
amount of intellectual activity, where education and its consequent
habits of reading and thinking are so wide spread, and therefore a
great variety of opinion. Accordingly there is not the same Unity of
pecuniary Interest and of political Idea, which distinguishes the
South. Besides, in the North the ablest and best educated men do not
devote their time to the thankless and stormy calling of politics;
Virginia cares for nothing but Negroes and Politics, her loins and her
brains gender but this twofold product: Massachusetts and New York
care for much beside. So the North does not present against the South
an even and well-disciplined front of veteran soldiers, but a ragged,
discordant line of raw recruits, enlisting for a short time with some
special or even personal local interest to serve.

What makes the matter yet worse for us, Gentlemen of the Jury, is
this: While the great mass of the people at the North, engrossed in
direct productive industry, are really hostile to slavery, those
absorbed in the large operations of commerce, taken as a whole class,
feel little interest in the Idea of Freedom; nay, they are positively
opposed to it. Before the African Slave-trade was treated like other
kindred forms of piracy, as a capital crime, they had their ships in
that felonious traffic; and now their vessels engage in the American
Slave-trade and their hand still deals in the bodies of their fellow
men. In all the great commercial cities, like Philadelphia, New York
and Boston these men prevail, and are the "eminent citizens,"
overslaughing the press, the pulpit, the bar, and the court, with the
Ideas of their lower law, and sweeping along all metropolitan and
suburban fashion and respectability in their slimy flood. Hence the
great cities of the North, governed by the low maxims of this class,
have become the asylum of Northern men with Southern "Principles," and
so the strong-hold of Slavery. And hitherto these great cities have
controlled the politics of the Northern States, crowding the Apostles
of Freedom out from the national board, and helping the party of
slavery to triumph in all great battles.

Thus aided, for many years the South has always elected her candidate
for the Presidency by the vote of the people. But the American
Executive is twofold,--part Presidential, part Senatorial. Sometimes
these two Executives are concordant, sometimes discordant. The
Senatorial Executive has always carried the day against the less
permanent Presidential power, except in the solitary case where
General Jackson's unconquerable will and matchless popularity enabled
him to master the senate itself, who "registered" his decrees, or
"expunged" their own censure, just as the iron ruler gave orders.

Now by means of the control which the Northern Cities have over the
Northern States, and such Commercial Men over those cities, it has
come to pass that not only the Presidential, but also the Senatorial
Executive, has long been hostile to the Idea of Freedom.

Gentlemen of the Jury, the direct consequence is obvious,--the Party
of Slavery has long been the conqueror in the field of Federal
politics. In the numerous and great conflicts between the two, Freedom
has prevailed against Slavery only twice since the close of the
Revolutionary War,--in prohibiting involuntary servitude in the
North-west Territory in 1787, and in the abolition of the African
Slave-trade in 1808. Her last triumph was forty-seven years ago,--nay,
even that victory was really achieved twenty years before at the
adoption of the constitution. In this warfare we have not gained a
battle for freedom since 1788!

For a time it seemed doubtful which would triumph, though Slavery
gained Kentucky and Tennessee, and Louisiana was purchased as slave
soil in 1803. But in 1820 slavery became the obvious and acknowledged
master in the Federal Territory, marched victorious over the
Mississippi, planted itself in Missouri, and has subsequently taken
possession of Mississippi, Alabama and Arkansas, all slave States; has
purchased Florida; "reannexed" Texas; conquered Utah, New Mexico and
California, all slave soil; and from Freedom and the North has just
now reconquered Kansas and Nebraska. Ever since the Missouri
Compromise in 1820 Slavery has been really the master, obviously so
since the annexation of Texas in 1845. The slave-power appoints all
the great national officers, executive, diplomatic, judicial, naval
and military,--it controls the legislative departments. Look at this
Honorable Court, Gentlemen, and recognize its power!

The idea of Slavery must be carried out to its logical consequence, so
our masters now meditate two series of Measures, both necessary to the
development of Slavery as a Principle.

(I.) African Slavery is to be declared a Federal Institution, national
and sectional, and so extended into all the Territories of the United
States. New soil is to be bought or plundered from Hayti, Spain,
Mexico, South America "and the rest of mankind," that slavery may be
planted there; that is the purpose of all the Official Fillibustering
of the Government, and the Extra-official Fillibustering which it
starts, or allows; Quitman "Enterprises," Kinney "Expeditions," Black
Warrior and El Dorado "difficulties," all point to this; the "Ostend
Conference" is a step in that direction; Slavery is to be restored to
the so called "Free States," reëstablished in all the North. That is
the design of the fugitive slave bill in 1850, and the kidnapping of
northern men consequent thereon for the last five years; of President
Pierce's inaugural declarations in behalf of slavery in 1853; of Mr.
Toombs's threat in 1854, that "soon the master with his slaves will
sit down at the foot of Bunker Hill Monument;" of Mr. Toucey's Bill in
1855, providing that when a kidnapper violates the local laws of any
State, he shall be tried by the fugitive slave bill court. Then the
African Slave-trade is to be restored by federal enactments, or
judicial decisions of the "Supreme Court of the United States." All
these steps belong to Measure number One. The Supreme Court is ready
to execute the commands of its lord. Soon you will see more
"decisions" adverse to humanity.

(II.) The next movement is progressively to weaken and ultimately to
destroy the Democratic Institutions of the North,--yes, also of the
South. This design is indicated and sustained by some of the measures
already mentioned as connected with the first purpose.

To this point tend the words of President Pierce addressed to the
soldiers of 1812 on the 8th of January 1855, in which he speaks of
such as "disseminate political heresies," that is, the Idea of
Freedom; "revile the government,"--expose its hostility against the
unalienable Rights of man; "deride our institutions,"--to wit, the
patriarchal institution of Slavery; "sow political dissensions,"--advise
men not to vote for corrupt tools of the government; "set at defiance
the laws of the land,"--meaning the fugitive slave bill which commands
kidnapping.

There belong the attempts of the Federal courts to enlarge their
jurisdiction at the expense of State Rights; the cry, "Union first and
Liberty afterwards;" the shout "No higher law," "Religion nothing to
do with Politics."

Thence come the attacks made on the freedom of the pulpit, of the
press, and all freedom of speech. The Individual State which preserves
freedom must be put down,--the individual person who protests against
it must be silenced. No man must hold a federal office,--executive,
diplomatic, judicial, or "ministerial,"--unless he has so far
conquered his "prejudices" in favor of the natural Rights of man that
he is ready to enslave a brother with alacrity. All these steps belong
to Measure number Two.

This latter Measure advances to its execution, realizing the Idea of
Slavery, with subtle steps, yet creeps on rapid-moving feet. See how
it has gained ground latterly. Obviously the fugitive slave bill
struck only at the natural Rights of Colored men--as valuable as those
of white men, but the colored are few and the white many,--the
experiment must be made on the feebler body. But this despotism cannot
enslave a black girl without thereby putting in peril the liberty of
every white man. At first our masters only asked of Boston a little
piece of chain, but just long enough to shackle the virtuous hands of
Ellen Craft, a wife and mother, whom her Georgian "owner" wished to
sell as a harlot at New Orleans! A meeting was summoned at Faneuil
Hall, and Boston answered, "Yes, here is the chain. Let the
woman-hunter capture Ellen Craft, make her a Prostitute at New
Orleans. She is a virtuous wife and mother,--but no matter. Slavery is
king and commands it. Let the 'owner' have his chain."

There is no escaping the consequence of a first Principle. Soon that
little chain lengthened itself out, and coiled itself all round the
court house, and how greedily your judges stooped to go under! This
Anaconda of the Dismal Swamp wound its constricting twists about the
neck of all your courts, and the Judges turned black in the face, and
when questioned of law, they could not pronounce "Habeas Corpus,"
"Trial by Jury," nor utter a syllable for the Bible or the
Massachusetts Constitution, but only wheeze and gurgle and squeak and
gibber out their defences of Slavery! No, Boston could not bewray a
woman wandering towards freedom, without chaining the court house and
its judges, putting the town in a state of siege,--insolent soldiers
striking at the people's neck. Now the attempt is making by this
Honorable Court to put the same chain round Faneuil Hall, so that the
old Cradle of Liberty shall no more rock to manhood the noble sons of
freedom, but only serve as a nest that the spawn of Bondage may
hibernate therein.

I am on trial because I hate Slavery, because I love freedom for the
black man, for the white man, and for all the human Race. I am not
arraigned because I have violated the statute on which the indictment
is framed--no child could think it--but because I am an advocate of
Freedom, because my Word, my Thoughts, my Feelings, my Actions, nay,
all my Life, my very Existence itself, are a protest against Slavery.
Despotism cannot happily advance unless I am silenced. It is very
clear logic which indicts me. Private personal malice, deep, long
cherished, rancorous, has doubtless jagged and notched and poisoned
too the public sword which smites at my neck. Still it is the public
sword of Slavery which is wielded against me. Against ME? Against YOU
quite as much--against your children. For as Boston could not venture
to kidnap a negro woman, without bringing down that avalanche of
consequences connected with the Principle of Slavery,--without chains
on her Judges, falsehood in her officers, blood in her courts, and
drunken soldiers in her streets, and hypocrisy in her man-hunting
ministers,--no more can she put me to silence alone. The thread which
is to sew my lips together, will make your mouths but a silent and
ugly seam in your faces. Slavery is Plaintiff in this case; Freedom
Defendant. Before you as Judges, I plead your own cause--for you as
defendant. I will not insult you by the belief or the fear that you
can do other than right, in a matter where the law is so plain, and
the Justice clear as noonday light. But should you decide as the
wicked wish, as the court longs to instruct you, you doom your mouths
to silence; you bow your manly faces to the ground, destine your
memories to shame, and your children to bondage worse than negro
slavery.

Such, Gentlemen of the Jury, is the state of affairs leading to this
Prosecution--such the past, present, and prospective Encroachments of
a Power hostile to Democratic Institutions and the unalienable Rights
they were designed to protect. Such also are the two Measures now in
contemplation,--the Extension of African Bondage, and the Destruction
of American Freedom.

II. LOOK NEXT AT THE MODE OF OPERATION HITHERTO PURSUED BY THIS
ENCROACHING POWER, IN OTHER TIMES AND NATIONS, AND IN OUR OWN,
SYSTEMATIC CORRUPTION OF THE JUDICIARY.

Here I shall show the process by which that Principle of Slavery
becomes a Measure of political ruin to the People.

In substance Despotism is always the same, Spanish or Carolinian, but
the form varies to suit the ethnologic nature and historical customs
of different people. I shall mention two forms--one to illustrate, the
other to warn.

(I.) The open Assumption of Power by military violence. This method is
followed in countries where love of Individual Liberty is not much
developed in the consciousness of the people, and where democratic
institutions are not fixed facts in their history; where the nation is
not accustomed to local self-government, but wonted to a strong
central power directed by a single will. This form prevails in Russia,
Turkey, and among all the Romanic tribes in Europe, and their
descendants in America. Military usurpation, military rule is
indigenous in France,--where two Napoleons succeed thereby,--in Italy,
in Spain, and most eminently in Spanish America. But no people of the
Teutonic family for any length of time ever tolerated a usurping
soldier at the head of affairs, or submitted to martial arbitrary
rule, or military violence in the chief magistrate. It is against our
habit and disposition.

Neither Cromwell nor William of Orange could do with the Anglo-Saxon
what it would have been impossible not to do with Spaniards or
Italians. Even warlike Swiss--Teutonic tribes--will have a government
with due process of law, not by the abrupt violence of the soldier.
Washington could not have established a military monarchy in America
had he been so wickedly disposed. Even William the Conqueror must rule
the Saxons by Saxon law.

(II.) The corruption of the acknowledged safeguards of public
security. This is attempted in nations who have a well-known love of
individual liberty, and institutional defences thereof, the habit of
Local Self-government by Democratic Law-making and Law-administering.
For example, this experiment has been repeatedly made in England. The
monarch seeking to destroy the liberty of the people, accomplishes
his violent measure by the forms of peaceful law, by getting the
judicial class of men on the side of despotism. Then all the
wickedness can be done in the name, with the forms, and by "due
process" of law, by regular officers thereof--done solemnly with the
assistance of slow and public deliberation.

Gentlemen of the Jury, this is a matter of such importance to the
People of America just now, that I must beg you to bear with me while
I explain this subtle operation. I will select examples from the
history of England which are easy to understand, because her blood is
kindred to our own, and the institutions of the two countries are
related as parent and child. And besides, her past history affords
alike warning and guidance in our present peril.

(I.) The first step in this process of political iniquity is, to
appoint men for judges and other officers of the court, who know no
law higher than the selfish will of the hand that feeds them, mere
creatures of the rest [Transcriber's Note: for 'rest' read
'government'; see Errata].

I will select instances of this from the reign of the Stuart kings and
one of their successors, from a period full of melancholy warning to
America.

I will begin with James I. (1603-1625), the first King of New England.
At his very accession he had high notions of his royal Prerogative,
and maintained that all the privileges of the House of Commons were
derived from his royal grant. "I am your King," said he, "I am placed
to govern you, and I shall [must] answer for your errors." It was
quite enough to answer for his own,--poor man. "Let me make the
Judges," said he, "and I care not who makes the laws."

Accordingly for judicial officers he appointed such men as would
execute his unlawful schemes for the destruction of public liberty. To
such considerations was Francis Bacon mainly indebted for his
elevation from one legal rank to another, until he reached the seat of
the Lord Chancellor. A man whom Villers declared, "of excellent parts,
but withal of a base and ungrateful temper, and an arrant knave, yet a
fit instrument for the purposes of the government." He did not receive
his appointment for that vast, hard-working genius which makes his
name the ornament of many an age, but only for his sycophantic
devotion to the royal will. Sir Edward Coke was promoted rapidly
enough, whilst wholly subservient to the despotic court, but
afterwards, though a miracle of legal knowledge, not equalled yet
perhaps, he must not be appointed Lord Chancellor on account of "his
occasional fits of independence." Chief Justice Ley was one of the
right stamp, but it was thought "his subserviency might prove more
valuable by retaining him to preside over the Court of King's Bench."
"For in making the highest judicial appointments the only question
was, what would suit the arbitrary schemes of governing the
country."[5] Hobart had resisted some illegal monopolies of the
all-powerful Buckingham, and he was "unfit for promotion."

[Footnote 5: 2 Campbell, 372, 374.]

James thought the Prerogative would be strengthened by the appointment
of clergymen of the national church, perhaps the only class of men not
then getting fired with love of liberty,--and made Williams, Bishop of
Lincoln, Lord Keeper, a "man of rash and insolent, though servile
temper, and of selfish, temporizing, and trimming political conduct,"
who at that time had never acted as "a judge except at the Waldegrave
Petty Sessions in making an order of bastardy or allowing a rate for
the Parish poor," and was "as ignorant of the questions coming before
him as the door-keepers of his court." But he was subservient, and had
pleased the King by preaching the courtly doctrine that "subjects hold
their liberties and their property at the will of the Sovereign whom
they are bound in every extremity passively to obey."[6] Men like
Fleming and other creatures of the throne, sanctioning the King's
abundant claim to absolute power, were sure of judicial distinction;
while it was only the force of public opinion which gave the humblest
place of honor to such able and well-studied lawyers as would respect
the constitutional Rights of the People and the just construction of
the laws, and at all hazards maintain their judicial independence.
Ecclesiastics who taught that the King "is above the laws by his
absolute power," and "may quash any law passed by Parliament," were
sure of rapid preferment. Thus Bancroft was promoted; thus Abbot was
pushed aside; and for his mean, tyrannical and subservient disposition
Rev. William Laud was continually promoted in expectation of the
services which, as Archbishop, he subsequently performed in the
overthrow of the Liberty of the People. But time would fail me to read
over the long dark list of men whose personal shame secured them
"official glory."

[Footnote 6: 2 Campbell, 368, 374; 3 Howell State Trials, 824.]

In his address to the Judges in the Star-Chamber in 1616 James gave
them this charge, "If there falls out a question which concerns any
Prerogative or mysterie of State, _deale not with it till you consult
with the King_ or his Council, or both; for they are Transcendent
Matters, and must not be slibberly carried with over rash
wilfullnesse." "And this I commend unto your special care, as some of
you of late have done very much, to _blunt the edge and vaine popular
humor of some lawyers at the Barre_, that think they are not eloquent
and bold-spirited enough, except they _meddle with the King's
Prerogative_." "_That which concerns the mysterie of the King's Power
is not lawful to be disputed._"[7] Gentlemen, that was worthy of some
judicial charges which you and I have heard.

[Footnote 7: Speache in the Starre-Chamber, London, 1616.]

Charles I. (1625-1659,) pursued the same course of tyranny by the same
steps. Coventry could be implicitly relied on to do as commanded, and
was made Lord Keeper in 1625. When the question of Ship-money was to
be brought forward in 1636, Chief Justice Heath was thought not fit to
be trusted with wielding the instrument of tyranny, and accordingly
removed; "and Finch, well known to be ready to go all lengths, was
appointed in his place." For he had steadfastly maintained that the
King was absolute, and could dispense with law and parliament,--a fit
person to be a Chief Justice, or a Lord Chancellor, in a tyrant's
court, ready to enact iniquity into law. His compliance with the
King's desire to violate the first principle of Magna Charta,
"endeared him to the Court, and secured him further preferment as soon
as any opportunity should occur." So he was soon made Lord Chancellor
and raised to the peerage. Littleton had once been on the popular
side, but deserted and went over to the Court--he was sure of
preferment; and as he became more and more ready to destroy the
liberties of the People, he was made Chief Justice, and finally Lord
Chancellor in 1641. Lane was a "steady friend of the prerogative," and
so was made Attorney-General to the Prince of Wales, and thence
gradually elevated to the highest station.

Other Judicial appointments were continually made in the same spirit.
Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the
government questioned him to ascertain if he were "sound," and were
shocked to hear him declare that the King had no right to levy taxes
without consent of Parliament, or imprison his subjects without due
process of law. He was "immediately dismissed from his office,"
(1626,) and Sir Nicolas Hyde appointed in his place. By such means the
courts were filled with tools of the King or his favorites, and the
pit digged for the liberties of the People, into which at last there
fell--the head of the King!

Charles II. and James II., (1655-1686,) did not mend the evil, but
appointed for judges "such a pack as had never before sat in
Westminster Hall." Shaftesbury and Guildford had the highest judicial
honors. Lord Chancellor Finch, mentioned already, had been accused by
the Commons of High Treason and other misdemeanors, but escaped to the
continent, and returned after the Restoration. He was appointed one of
the Judges to try the Regicides. Thus he "who had been accused of high
treason twenty years before by a full parliament, and who by flying
from their justice saved his life, was appointed to judge some of
those who should have been his Judges."[8] He declared in Parliament
that Milton, for services rendered to the cause of liberty while Latin
Secretary to Cromwell, "deserved hanging."[9]

[Footnote 8: Ludlow, quoted in 2 Campbell, 470.]

[Footnote 9: 4 Parl. Hist. 162.]

In these reigns such men as Saunders, Wright, and Scroggs, were made
Judges, men of the vilest character, with the meanest appetites,
licentious, brutal, greedy of power and money, idiotic in the moral
sense, appointed solely that they might serve as tools for the
oppression of the People. Among these infamous men was George
Jeffreys, of whom Lord Campbell says,--"He has been so much abused
that I began my critical examination of his history in the hope and
belief that I should find that his misdeeds had been exaggerated, and
that I might be able to rescue his memory from some portion of the
obloquy under which it labors; but I am sorry to say that in my
matured opinion his cruelty and his political profligacy have not been
sufficiently exposed or reprobated; and that he was not redeemed from
his vices by one single solid virtue."[10] But in consequence of his
having such a character, though not well-grounded in law, he was made
a Judge, a Peer, and a Lord Chancellor! Wright, nearly as infamous,
miraculously stupid and ignorant, "a detected swindler, knighted and
clothed in ermine, took his place among the twelve judges of
England."[11] He also was made Chief Justice successively of the
Common Pleas and the King's Bench! Lord Campbell, himself a judge, at
the end of his history of the reign of Charles and James, complains of
"the irksome task of relating the actions of so many men devoid of
political principle and ready to suggest or to support any measures,
however arbitrary or mischievous, for the purpose of procuring their
own advancement."[12] It was the practice of the Stuarts "to dismiss
judges without seeking any other pretence, who showed any disposition
to thwart government in political prosecutions."[13] Nor was this
dismissal confined to cases where the judge would obey the law in
merely Political trials. In 1686 four of the judges denied that the
king had power to dispense with the laws of the land and change the
form of religion: the next morning they were all driven from their
posts, and four others, more compliant, were appointed and the
judicial "opinion was unanimous." Hereupon Roger Coke says well,--"the
king ... will make the judges in Westminster Hall to murder the common
law, as well as the king and his brother desired to murder the
parliament by itself; and to this end the king, when he would make any
judges would make a bargain with them, that they should declare the
king's power of dispensing with the penal laws and tests made against
recusants, out of parliament."[14]

[Footnote 10: 3 Campbell, 394.]

[Footnote 11: 2 Campbell Chief Justices, 86.]

[Footnote 12: 3 Campbell, 473.]

[Footnote 13: 3 Hallam, 142.]

[Footnote 14: 8 St. Tr. 195, note.]

Here, Gentlemen of the Jury, I must mention three obscure judges who
received their appointments under Stuart kings. Before long I shall
speak of their law and its application, and now only introduce them to
you as a measure preliminary to a more intimate acquaintance
hereafter.

1. The first is Sir William Jones, by far the least ignoble of the
three. He was descended from one of the Barons who wrung the Great
Charter from the hands of King John in 1618 [Transcriber's Note: for
'1618' read '1215'; see Errata], and in 1628 dwelt in the same house
which sheltered the more venerable head of his Welsh ancestor. In 1628
he was made judge by Charles I. He broke down the laws of the realm to
enable the king to make forced loans on his subjects, and by his
special mandate (Lettre de Cachet) to imprison whom he would, as long
as it pleased him, and without showing any reason for the commitment
or the detention! Yes, he supported the king in his attempt to shut up
members of parliament for words spoken in debate in the house of
commons itself; to levy duties on imports, and a tax of ship-money on
the land. He was summoned before parliament for his offences against
public justice, and finally deprived of office, though ungratefully,
by the king himself.[15]

[Footnote 15: Account of him in Preface to his Reports, (1675); 3 St.
Tr. 162, 293, 844, 1181; 2 Parl. Hist. 869; 1 Rushworth, 661, _et
al._; Whitlocke, 14, _et al._]

2. Thomas Twysden was counsel for George Coney in 1655, a London
merchant who refused to pay an illegal tax levied on him by
Cromwell--who followed in the tyrannical footsteps of the king he
slew. Twysden was thrown into the Tower for defending his client--as
Mr. Sloane, at Sandusky, has just been punished by the honorable court
of the United States for a similar offence,--but after a few days made
a confession of his "error," defending the just laws of the land,
promised to offend no more, and was set at liberty, ignominiously
leaving his client to defend himself and be defeated. This Twysden was
made judge by Charles II. The reporters recording his decisions put
down "_Twysden in furore_," thinly veiling the judicial wrath in
modest Latin. He was specially cruel against Quakers and other
dissenters, treating George Fox, Margarett Fell, and John Bunyan with
brutal violence.[16]

[Footnote 16: 6 St. Tr. 634; 1 Campbell Justices, 442.]

3. Sir John Kelyng is another obscure judge of those times. In the
civil war he was a violent cavalier, and "however fit he might be to
_charge_ the Roundheads under Prince Rupert, he was very unfit to
_charge_ a jury in Westminster Hall." In 1660 he took part in the
trial of the Regicides and led in the prosecution of Colonel Hacker,
who in 1649 had charge of the execution of Charles I. In 1662 he took
part in the prosecution of Sir Henry Vane, and by his cruel subtlety
in constructing law, that former governor of Massachusetts,--one of
the most illustrious minds of England, innocent of every crime, was
convicted of high treason and put to death.[17] For this service, in
1663 Kelyng was made a judge; and then, by loyal zeal and judicial
subserviency, he made up "for his want of learning and sound sense."
But he was so incompetent that even the court of Charles II. hesitated
to make him more than a puny judge. But he had been a "valiant
cavalier," and had done good service already in making way with such
as the king hated, and so after the death of Sir Nicolas Hyde, he was
made Lord Chief Justice in his place. "In this office," says Judge
Campbell, he "exceeded public expectation by the violent, fantastical,
and ludicrous manner in which he conducted himself."[18] But I will
not now anticipate what I have to say of him in a subsequent part of
this defence.

[Footnote 17: 6 St. Tr. 161.]

[Footnote 18: 1 Campbell Justices, 401.]

Gentlemen of the Jury, we shall meet these three together again before
long, and I shall also speak of them "singly or in pairs." In the mean
time I will mention one similar appointment in the reign of George the
III.--the last king of New England.

In 1770 Sergeant Glynn, in Parliament, moved for an inquiry into the
administration of criminal justice. Edmund Thurlow, a rough venal man,
then recently appointed solicitor-general, proposed that a severe
censure should be passed on him for the motion. Thurlow wanted the
trial by jury abolished in all cases of libel, so that the liberty of
the people should be in the exclusive care of government attorneys and
judges appointed by the crown. Hear him speak on the 6th of December,
1770.

     "In my opinion no man should be allowed with impunity to
     make a wanton attack upon such venerable characters as the
     judges of the land. We award costs and damages to the
     aggrieved party in the most trifling actions. By what
     analogy, then, can we refuse the same justice in the most
     important cases, to the most important personages? If we
     allow every pitiful patriot thus to insult us with
     ridiculous accusations, without making him pay forfeit for
     his temerity, we shall be eternally pestered with the
     humming and buzzing of these stingless wasps. Though they
     cannot wound or poison, they will tease and vex. They will
     divert our attention from the important affairs of State to
     their own mean antipathies, and passions, and prejudices.
     Did they not count upon the spirit of the times and imagine
     that the same latitude which is taken by the libellers is
     here allowable, they would not have dared to offer so gross
     an outrage. I hope we shall now handle them so roughly as to
     make this the last of such audacious attempts. They are
     already ridiculous and contemptible. To crown their
     disgrace, let us inflict some exemplary punishment. Else
     none of us is safe. Virtue and honor, you see from this
     instance, are no safeguard from their attacks."

     "The nature, the direct effect, and the remote consequences
     of a State libel, are so complicated and involved with
     various considerations of great pith and moment, that few
     juries can be adequate judges. So many circumstances are at
     once to be kept in view, so many ponderous interests are to
     be weighed, so many comparisons to be made, and so many
     judgments formed, that the mind of an ordinary man is
     distracted and confounded, and rendered incapable of coming
     to any regular conclusion. None but a judge, a man that has
     from his infancy been accustomed to decide intricate cases,
     is equal to such a difficult task. If we even suppose the
     jury sufficiently enlightened to unravel those knotty
     points, yet there remains an insuperable objection. In State
     libels, their passions are frequently so much engaged, that
     they may be justly considered as parties concerned against
     the crown."

     "In order, therefore, to preserve the balance of our
     constitution, _let us leave to the judges_, as the most
     indifferent persons, _the right of determining the malice or
     innocence of the intention_."

     "It is not that I think the intention a matter of fact; no,
     in the sense put upon it by the judges, it is a matter of
     law."

     "Much dust has been raised about civil and criminal actions.
     But to what purpose? Is not reparation to be made to the
     public for any injury which it may have sustained, as much
     as to an individual? Is the welfare of the nation in
     general, of less consequence than that of a single person?
     Where then is the propriety of making such a bustle about
     the malice or innocence of the intention? The injury done is
     the only proper measure of the punishment to be inflicted,
     as well as of the damage to be assessed. Since you cannot
     plead the intention as a mitigation in the latter case,
     neither can you in the former."[19]

[Footnote 19: 16 Parl. Hist. 1291, 1292, 1293.]

What followed? On the 23d of July, 1771, he was made Attorney-General.
His subsequent history did not disappoint the prophecy uttered above
by his former conduct and his notorious character. "In truth his
success was certain, with the respectable share he possessed of real
talents and of valuable requirements--strongly marked features,
piercing eyes, bushy eyebrows, and a sonorous voice, all worked to the
best effect by an immeasurable share of self-confidence--he could not
fail."[20] He hated America with the intense malignity of a low but
strong and despotic nature, and "took a most zealous part and uttered
very violent language against the colonists. He scorned the very
notion of concession or conciliation; he considered 'sedition' and
'treason,' (like _tobacco_ and _potatoes_,) the peculiar plants of the
American soil. The natives of these regions he thought were born to be
taxed."[21] He favored the Stamp Act, the Coercion Bill,--quartering
soldiers upon us, sending Americans beyond seas for trial,--the Boston
Port Bill, and all the measures against the colonies. "To say that we
have a right to tax America and never exercise that right, is
ridiculous, and a man must abuse his understanding very much not to
allow of that right;" "the right of taxing was never in the least
given up to the Americans."[22] On another occasion he said, that "as
attorney-general he had a right to set aside every charter in
America."[23] What followed? Notwithstanding his youthful profligacy,
the open profanity of his public and private speech, and his living in
public and notorious contempt of matrimony,--he was made Lord
Chancellor and elevated to the peerage in 1778! Him also we shall meet
again.

[Footnote 20: 5 Campbell, 398.]

[Footnote 21: 5 Campbell, 410.]

[Footnote 22: 17 Parl. Hist. 1313.]

[Footnote 23: 18 St. Tr. 999.]

Gentlemen of the Jury, I might as well try to bale all the salt water
out of the sea as to mention every glaring and notorious instance
where an oppressive government has appointed some discarder of all
Higher Law for its servant in crushing the People. Come therefore to
the next point.

(II.) The next step is by means of _such Judges to punish and destroy
or silence men who oppose the wickedness of the party in power, and
the encroachments of despotism_. Let me describe the general mode of
procedure, and then illustrate it by special examples.

1. In the Privy Council, or elsewhere, it is resolved to punish the
obnoxious men,--and the business is intrusted to the law-officers of
the crown, appointed for such functions.

2. They consult and agree to pervert and twist the law--statute or
common--for that purpose. By this means they gratify their master, and
prepare future advancement for themselves.

3. The precedent thus established becomes the basis for new operations
in the future, and may be twisted and perverted to serve other cases
as they occur.

Now, Gentlemen, look at some examples taken from British history, in
times of the same Kings mentioned before.

1. In 1610 two Puritans for refusing the _ex officio_ oath, were
clapped in Jail by the commissioners. They were brought on _habeas
corpus_ before a court, and Mr. Fuller, their counsel, a learned
lawyer, insisted that they were imprisoned without due process of law.
For this "contempt of court" he was thrown into jail by Archbishop
Bancroft, whence he was rescued only by death.[24]

[Footnote 24: Peirce's Vindication, (1717,) 174.]

2. In 1613 there were many murmurs among the People of England at the
tyranny of James. Fine and imprisonment did not quell the disturbance;
so a more dreadful example was thought needful. The officials of
Government broke into the study of Rev. Edmund Peacham, a Protestant
minister, sixty or seventy years old. In an uncovered cask they found
a manuscript sermon, never preached, nor designed for the pulpit or
the press, never shown to any one. It contained some passages which
might excite men to resist tyranny. He was arrested, and thrown into
Jail, all his papers seized. The Government resolved to prosecute him
for high treason. Francis Bacon, the powerful and corrupt
Attorney-General, managed the prosecution. Before trial was ventured
upon, he procured an extrajudicial opinion of the Judges appointed for
such services,--irregularly given, out of court, that they would
declare such an act high treason.

But a manuscript sermon, neither preached nor designed for the public,
was hardly evidence enough of treason even for such Judges--so
purchased, for such an Attorney--so greedy of preferment, with such a
Cabinet and such a King. For all those, like the Pharisees of old,
"feared the People." So their victim was tortured on the rack, and
twelve leading questions prepared by the Government officials, were
put to him there. I quote Secretary Winwood's record--still extant in
his own handwriting--"He was this day examined before torture, in
torture, between torture, and after torture; notwithstanding nothing
could be drawn from him, he still persisting in his obstinate and
insensible denials and former answers." Bacon was present at the
torture, which took place in the Tower, Jan. 19, 1614, O.S. (30th Jan.
1615, N.S.). In August he was tried for high treason--"compassing and
imagining the King's death"--before a packed jury; against law, and
without legal evidence. He was of course found guilty under the ruling
of the Court! But public opinion, even then making tyrants "tremble in
their capitals," was so indignant at the outrage that the execution
was not ventured on, and he was left to languish in Jail, till on the
27th of March, 1616, a King more merciful took the old minister where
the wicked cease from troubling.[25]

[Footnote 25: 2 St. Tr. 869; 16 Montagu's Bacon, clxvi.; 2 Campbell,
291.]

In this case, Gentlemen of the Jury, you will notice three violations
of the law.

(1.) The opinion of the Judges before the trial was extrajudicial and
illegal.

(2.) The application of torture was contrary to law.

(3.) The statute of Treason was wrested to apply to this case--and a
crime was constructed by the servants of the court.

It is curious to read the opinion of James himself. "The British
Solomon" thus wrote:--

     "So the only thing the Judges can doubt of is of the
     delinquent's intention, on his bare denial to clear him
     [himself], since nature teaches every man to defend his life
     as he may; and whether in case there was a doubt herein, the
     Judges should not rather incline to that side [namely, the
     side of the Government,] wherein all probability lies: but
     if Judges will needs trust rather the bare negative of an
     _infamous delinquent_--then all the probabilities, or rather
     infallible consequences upon the other part, caring more for
     the safety of _such a monster_ than the preservation of a
     crown in all ages following, whereupon depend the lives of
     many millions, happy then are all _desperate and seditious
     knaves_, but the fortune of this crown is more than
     miserable. Which God forefend."[26]

[Footnote 26: 2 St. Tr. 879.]

3. In 1633, Laud, a tyrannical, ambitious man, and a servile creature
of the King, mentioned before, was made Archbishop of Canterbury,
continuing Bishop of London at the same time. Charles I. was strongly
inclined to Romanism, Laud also leaned that way, aiming to come as
near as possible to the Papal and not be shut out of the English
Church. He made some new regulations in regard to the Communion Table
and the Lord's Supper. John Williams, before mentioned, Dean of
Westminster and Bishop of Lincoln, who had been Lord Keeper under King
James, wrote a book against those innovations; besides, in his
episcopal court he had once spoken of the Puritans as "good subjects,"
and of his knowing "that the King did not wish them to be harshly
dealt with." In 1637 Laud directed that he should be prosecuted in the
Star-Chamber for "publishing false news and tales to the scandal of
his Majesty's government;" and "for revealing counsels of State
contrary to his oath of a Privy Counsellor." He was sentenced to pay a
fine of £10,000,--equal to $50,000, or thrice the sum in these times;
to be suspended from all offices, and kept a close prisoner in the
Tower during the King's pleasure--whence the Revolution set him at
liberty. Besides he wrote private letters to Mr. Osbalderston, and
called Laud "the little great man," for this he, in 1639, was fined
£5,000 to the King, and £3,000 to the Archbishop. Osbalderston in his
letters had spoken of the "great Leviathan" and the "little Urchin,"
and was fined £5,000, to the King, and the same to the Archbishop, and
sentenced also to stand in the pillory with his ears nailed to it![27]

[Footnote 27: 3 St. Tr. 769; 2 Campbell, 400.]

4. In 1629 Richard Chambers, a merchant of London, complained to the
Privy Council of some illegal and unjust treatment, and declared "that
the merchants in no part of the world are so screwed and wrung as in
England; that in Turkey they have more encouragement." Laud, who hated
freedom of speech and liberal comments on the government as much as
"eminent citizens" nowadays, is said to have told the king, "If your
majesty had many such Chambers, you would soon have no Chamber left to
rest in." The merchant was tried before the "commissioners" at the
Star-Chamber, and fined £2,000, and condemned to make a "submission
for his great offence,"[28] which the stout Puritan refused to do, and
was kept in prison till the Court of King's Bench, faithful to the
law, on Habeas Corpus, admitted him to bail: for which they were
reprimanded. Laud and all the ecclesiastical members of the
"commission" wished his fine £3,000.

[Footnote 28: 3 St. Tr. 373; Franklyn, 361; 2 Hallam (Paris, 1841), 6
_ac etiam_ 13; 2 Mrs. Macaulay, 16, 45, 65.]

5. In his place in Parliament in 1629, Sir John Eliot, one of the
noblest men in England's noblest age, declared that "the Council and
Judges had all conspired to trample underfoot the liberties of the
subject." Gentlemen, the fact was as notorious as the advance of the
Slave Power now is in America. But a few days after the king (Charles
I.) had dismissed his refractory Parliament, Eliot, with Hollis, Long,
Selden, Strode, and Valentine, most eminent members of the commons,
and zealous for liberty and law, was seized by the king's command and
thrown into prison. The Habeas Corpus was demanded--it was all in
vain, for Laud and Strafford were at the head of affairs, and the
priests and pliant Judges in Westminster Hall--Jones was one of
them--clove down the law of the land just as their subcatenated
successors did in Boston in 1851. The court decreed that they should
be imprisoned during the king's pleasure, and not released until
making submission and giving security for good behavior. Eliot was
fined £2,000, Hollis and Valentine in smaller sums. Eliot--the brave
man--refused submission, and died in the Tower. Thus was the attack
made on all freedom of speech in Parliament![29]

[Footnote 29: 3 St. Tr. 293; 1 Rushworth; 2 Hallam, 2; 2 Parl. Hist.
488, 504; Foster's Eliot, 100; 2 Mrs. Macaulay, ch. i. ii.]

6. In 1630, the very year of the first settlement of Boston, on the
4th of June, Rev. Dr. Alexander Leighton was brought before the Court
of High Commission, in the Star-Chamber, to be tried for a seditious
libel. He had published "An Appeal to the Parliament, or a Plea
against Prelacy," a work still well known, remonstrating against
certain notorious grievances in church and State, "to the end the
Parliament might take them into consideration and give such redress as
might be for the honor of the king, the quiet of the people, and the
peace of the church," the court of commissions accounted it "a most
odious and heinous offence, deserving the most serious punishment the
court could inflict, for framing a book so full of such pestilent,
devilish, and dangerous assertions." The two Chief Justices declared
if the case had been brought to their courts, they would have
proceeded against him for Treason, and it was only "his majesty's
exceeding great mercy and goodness" which selected the milder
tribunal. His sentence was a fine of £10,000, to be set in the
pillory, whipped, have one ear cut off; one side of his nose slit, one
cheek branded with S.S., Sower of Sedition, and then at some
convenient time be whipped again, branded, and mutilated on the other
side, and confined in the Fleet during life! Before the punishment
could be inflicted he escaped out of prison, but was recaptured and
the odious sentence fully executed. Those who "obstructed" the officer
in the execution of that "process" were fined £500 a piece.[30]
Gentlemen of the Jury, which do you think would most have astonished
the Founders of Massachusetts, then drawing near to Boston, that trial
on the 4th of June, 1630, or this trial, two hundred and twenty-five
years later? At the court of Charles it was a great honor to mutilate
the body of a Puritan minister.

[Footnote 30: 3 St. Tr. 383; Laud's Diary, 4th November; 2 Hallam,
28.]

But not only did such judges thus punish the most noble men who wrote
on political matters, there was no freedom of speech allowed--so
logical is despotism!

7. William Prynn, a zealous Puritan and a very learned lawyer, wrote a
folio against theatres called "a Scourge for Stage-Players," dull,
learned, unreadable and uncommon thick. He was brought to the
Star-Chamber in 1632-3, and Chief Justice Richardson--who had even
then "but an indifferent reputation for honesty and veracity"--gave
this sentence: "Mr. Prynn, I do declare you to be a Schism-Maker in
the Church, a Sedition-Sower in the Commonwealth, a wolf in sheep's
clothing; in a word 'omnium malorum nequissimus'--[the wickedest of
all scoundrels]. I shall fine him £10,000, which is more than he is
worth, yet less than he deserveth; I will not set him at liberty, no
more than a plagued man or a mad dog, who though he cannot bite, yet
will he foam; he is so far from being a sociable soul that he is not a
rational soul; he is fit to live in dens with such beasts of prey as
wolves and tygers like himself; therefore I do condemn him to
perpetual Imprisonment, as those monsters that are no longer fit to
live among men nor to see light." "I would have him branded in the
forehead, slit in the nose, and his ears cropped too." The sentence
was executed the 7th and 10th of May, 1633.[31] But nothing
intimidated, the sturdy man committed other offences of like nature,
"obstructing" other "officers," and was punished again, and banished.
But on the summoning of Parliament returned to England, and became
powerful in that Revolution which crushed the tyrants of the time.

[Footnote 31: 3 St. Tr. 561; 2 Hallam, 28, and his authorities. See
also 2 Echard, 109, _et seq._, 124, _et seq._, 202, 368, 510; the
remarks of Hume, Hist. ch. lii., remind me of the tone of the fugitive
slave bill Journals of Boston in 1850-54.]

8. In 1685, James II. was in reality a Catholic. He wished to restore
Romanism to England and abolish the work of the Reformation, the
better to establish the despotism which all of his family had sought
to plant. He was determined to punish such as spoke against the Papal
Church, though no law prohibited such speaking. Judge Jeffreys, a
member of the cabinet and favorite of the king, was at that time chief
justice--abundantly fit for the work demanded of him. The pious and
venerable Richard Baxter was selected for the victim. Let Mr. Macaulay
tell the story.

     "In a Commentary on the New Testament, he had complained,
     with some bitterness, of the persecution which the
     Dissenters suffered. That men, who, for not using the
     Prayerbook, had been driven from their homes, stripped of
     their property, and locked up in dungeons, should dare to
     utter a murmur, was then thought a high crime against the
     State and Church. Roger Lestrange, the champion of the
     government, and the oracle of the clergy, sounded the note
     of war in the Observator. An information was filed. Baxter
     begged that he might be allowed some time to prepare for his
     defence. It was on the day on which Oates was pilloried in
     Palace Yard that the illustrious chief of the Puritans,
     oppressed by age and infirmities, came to Westminster Hall
     to make this request. Jeffreys burst into a storm of rage.
     'Not a minute,' he cried, 'to save his life. I can deal with
     saints as well as with sinners. There stands Oates on one
     side of the pillory; and if Baxter stood on the other, the
     two greatest rogues in the kingdom would stand together.'"

     "When the trial came on at Guildhall, a crowd of those who
     loved and honored Baxter, filled the court. At his side
     stood Doctor William Bates, one of the most eminent
     Non-conformist divines. Two Whig barristers of great note,
     Pollexfen and Wallop, appeared for the defendant."

     "Pollexfen had scarce begun his address to the jury, when
     the chief justice broke forth: 'Pollexfen, I know you well.
     I will set a mark on you. You are the patron of the faction.
     This is an old rogue, a schismatical knave, a hypocritical
     villain. He hates the Liturgy. He would have nothing but
     longwinded cant without book;' and then his lordship turned
     up his eyes, clasped his hands, and began to sing through
     his nose in imitation of what he supposed to be Baxter's
     style of praying, 'Lord, we are thy people, thy peculiar
     people, thy dear people.' Pollexfen gently reminded the
     court that his late majesty had thought Baxter deserving of
     a bishopric. 'And what ailed the old blockhead then,' cried
     Jeffreys, 'that he did not take it?' His fury now rose
     almost to madness. He called Baxter a dog, and swore that it
     would be no more than justice to whip such a villain through
     the whole city."

     "Wallop interposed, but fared no better than his leader.
     'You are in all these dirty causes, Mr. Wallop,' said the
     judge. 'Gentlemen of the long robe ought to be ashamed to
     assist such factious knaves.' The advocate made another
     attempt to obtain a hearing, but to no purpose. 'If you do
     not know your duty,' said Jeffreys, 'I will teach it you.'

     "Wallop sat down, and Baxter himself attempted to put in a
     word; but the chief justice drowned all expostulation in a
     torrent of ribaldry and invective, mingled with scraps of
     Hudibras. 'My lord,' said the old man, 'I have been much
     blamed by Dissenters for speaking respectfully of bishops.'

     "'Baxter for bishops!' cried the judge; 'that's a merry
     conceit indeed. I know what you mean by bishops--rascals
     like yourself, Kidderminster bishops, factious, snivelling
     Presbyterians!'

     "Again Baxter essayed to speak, and again Jeffreys bellowed,
     'Richard, Richard, dost thou think we will let thee poison
     the court? Richard, thou art an old knave. Thou hast written
     books enough to load a cart, and every book as full of
     sedition as an egg is full of meat. By the grace of God,
     I'll look after thee. I see a great many of your brotherhood
     waiting to know what will befall their mighty Don. And
     there,' he continued, fixing his savage eye on Bates, 'there
     is a doctor of the party at your elbow. But, by the grace of
     God Almighty, I will crush you all!'

     "Baxter held his peace. But one of the junior counsel for
     the defence made a last effort, and undertook to show that
     the words of which complaint was made, would not bear the
     construction put on them by the information. With this view
     he began to read the context. In a moment he was roared
     down. 'You sha'n't turn the court into a conventicle!' The
     noise of weeping was heard from some of those who surrounded
     Baxter. 'Snivelling calves!' said the judge."[32]

[Footnote 32: 1 Macaulay, (Harper's Ed.) 456-8.]

He was sentenced to pay a fine of 500 marks, to lie in prison till he
paid it, and be bound to good behavior for seven years. Jeffreys, it
is said, wished him also to be whipped at the tail of a cart.[33] But
the King remitted his fine.

[Footnote 33: 1 Macaulay, 456; 11 St. Tr. 493.]

Throughout the reign of James II. the courts of law became more and
more contemptible in the eyes of the people. "All the three common law
courts were filled by incompetent and corrupt Judges."[34] But their
power to do evil never diminished.

[Footnote 34: 2 Campbell's Justices, 87.]

9. James II. wished to restore the Catholic form of religion, rightly
looking on Protestantism as hostile to his intended tyranny; so he
claimed a right to dispense with the laws relating thereto, put a