Chapter IV: Of the Circumstances of This Special Case, United States Versus (3)

"Have ye forgot, or never knew,
That God will judge the judges too?
High in the Heavens his Justice reigns;
Yet you invade the rights of God,
And send your bold decrees abroad,
To bind the Conscience in your chains.

"Break out their teeth, eternal God,
Those teeth of lions dy'd in blood;
And crush the serpents in the dust;
As empty chaff, when whirlwinds rise,
Before the sweeping tempest flies,
So let their hopes and names be lost.

"Thus shall the Justice of the Lord
Freedom and peace to men afford;
And all that hear shall join and say,
Sure there's a God that rules on high,
A God that hears his children cry,
And all their sufferings will repay."

2. After Mr. Webster had made his speech of March 7, 1850, pledging himself and his State to the support of the fugitive slave bill, then before Congress, "to the fullest extent," Thomas B. Curtis, with the help of others, got up a letter to Mr. Webster, dated March 25, 1850, signed, it is said, by 987 persons, who say: "We desire to express to you our deep obligations for what this speech has done and is doing." "You have pointed out to a whole people the path of duty, have convinced the understanding and touched the conscience of the nation." "We desire, therefore, to express to you our entire concurrence in the sentiments of your speech."

3. A little later, Mr. Webster returned to Boston, and was "rapturously received" at the Revere House, April 29, 1850, by a "great multitude," when Benjamin R. Curtis made a public address, and expressed his "abounding gratitude for the ability and fidelity" which Mr. Webster had "brought to the defence of the Constitution and of the Union," and commended him as "_eminently vigilant, wise, and faithful to his country, without a shadow of turning_."

4. Presently, after the passage of the fugitive slave bill, at a dinner party, at the house of a distinguished counsellor of Boston, Charles P. Curtis declared that he hoped the first fugitive slave who should come to Boston would be seized and sent back!

5. Charles P. Curtis and his step-brother Edward G. Loring, and George T. Curtis, defended the fugitive slave bill by writing articles in the _Boston Daily Advertiser_.

6. In November, 1850, the slave-hunters, thus invited and encouraged, came to Boston, seeking to kidnap William and Ellen Craft: but they in vain applied to Commissioner Benj. F. Hallett, and to Judges Woodbury and Sprague, for a warrant to arrest their prey. Finally, they betook themselves to Commissioner George T. Curtis, who at once agreed to grant a warrant; but, according to his own statement, in a letter to Mr. Webster, Nov. 23, 1850, as he anticipated resistance, and considered it very important that the Marshal should have more support than it was in his power as a Commissioner to afford, he procured a meeting of the Commissioners, four in number, and with their aid succeeded in persuading the Circuit Court, then in session, to issue the warrant.

Gentlemen, as that letter of Mr. George T. Curtis contains some matters which are of great importance, you will thank me for refreshing your memory with such pieces of history.

"An application [for a warrant to arrest Mr. Craft] had
already been made to the judges [Messrs. Woodbury and
Sprague] privately ... they could not grant a warrant on
account of the pendency of an important Patent Cause then on
trial before a jury." "To this I replied, that ... the
ordinary business of the Court ought to give way for a
sufficient length of time, to enable the judges to receive
this application and to hear the case." "On a private
intimation to the presiding judge of our desire to confer
with him [the desire of the kidnapping commissioners, Mr.
B.F. Hallett, Mr. Edward G. Loring, Mr. C.L. Woodbury, and
Mr. G.T. Curtis] the jury were dismissed at _an earlier hour
than usual, ... and every person present except the
Marshal's deputies left the room, and the doors were
closed_." "The learned Judge said ... that he would attend
at half past eight the next morning, to grant the warrant."
"A process was placed in the hands of the Marshal ... in the
execution of which he might be called upon to _break open
dwelling-houses, and perhaps take life_, by quelling
resistance, actual or _threatened_." "I devoted at once a
good deal of time to the necessary investigations of the
subject." "There is a great deal of legislation needed to
make the general government independent of State control,"
says this "Expounder of the Constitution," "and independent
of the power of mobs, whenever and wherever its measures
chance to be unpopular." "The office of United States
Marshal is by no means organized and fortified by
legislation as it should be to encounter popular
disturbance."

7. The warrant having been issued for the seizure of Mr. Craft, Marshal Devens applied to Benjamin R. Curtis for legal advice as to the degree of force he might use in serving it, and whether it ought to be regarded as a civil or a criminal process. George T. Curtis was employed by his brother to search for authorities on these points. They two, together, as appears from the letter of George T. Curtis to Mr. Webster, induced Marshal Devens to ask a further question, which gave Benjamin R. Curtis an opportunity to come out with an elaborate opinion in favor of the constitutionality of the fugitive slave bill, dated November 9, 1850. This was published in the newspapers. In order to maintain the constitutionality of this act, Benjamin R. Curtis was driven to assume, as all its defenders must, that the Commissioner, in returning the fugitive, performs none of the duties of a Judge; that the hearing before him is not "a case arising under the laws of the United States;" that he acts not as a judicial, but merely as an executive and "ministerial" officer--not deciding him to be a slave, but merely giving him up, to enable that point to be tried elsewhere.[186] But, spite of this opinion, public justice and the Vigilance Committee forced the (Southern) slave-hunters to flee from Boston, after which, Mr. and Mrs. Craft left America to find safety in England, the evident rage and fierce threats of the disappointed Boston slave-hunters making it unsafe for them to remain.

[Footnote 186: On this see Hildreth's Despotism, 262, 280. Commissioner Loring considers that the fugitive slave bill commissioners have "_judicial_ duties." Remonstrance to General Court, 2.]

8. After the failure of this attempt to arrest Mr. Craft, Thomas B. Curtis got up a "Union Meeting" at Faneuil Hall, November 26, 1850.[187] The call was addressed to such as "regard with disfavor all further popular agitation" of the subject of Slavery. Thomas B. Curtis called the meeting to order: William W. Greenough, from the "Committee of Arrangements," presented the resolutions, which you have already heard.[188] It was said at the time that they were written, wholly or in part, by Mr. Benjamin R. Curtis, who moved their adoption and made a long and elaborate speech thereon.

[Footnote 187: See Mr. Curtis's letter in Daily Advertiser of February 7, 1855.]

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

Gentlemen of the Jury, as I just now gave you some passages from Mr. Hallett's speech on that occasion, allow me now to read you some extracts from Mr. Curtis's address. The general aim of the speech was to reconcile the People to kidnapping; the rhetorical means to this end were an attempt to show that kidnapping was expedient; that it was indispensable; that it had been long since agreed to; that the Slaves were foreigners and had no right in _Massachusetts_. He said:--

"We have come here not to consider particular measures of
government but to assert that we have a government, not to
determine whether this or that law be wise or just, but to
declare that there is law, and its duties and power."

"Every sovereign State has and must have the right to judge
_what persons from abroad_ shall be admitted."

"Are not these persons [fugitive slaves] foreigners as to
us--and what right have they to come here at all, _against
the will of the legislative power of the State_.
[Massachusetts had no legislation forbidding them!] And if
their coming here or remaining here, is not consistent with
the safety of the State and the welfare of the citizens _may
we not_ prohibit their coming, or _send them back_ if they
come?" "_To deny this_ is to deny the right of
self-preservation to a State.... It ... _throws us back at
once into a condition below the most degraded savages who
have a semblance of government_." "You know that the great
duty of justice could not otherwise be performed, [that is
without the fugitive-from-labor clause in the Constitution];
that our peace at home and our safety from foreign
aggression could not otherwise be insured; and that only by
this means could we obtain 'the Blessings of Liberty' to the
people of Massachusetts and their posterity." "In no other
way could we become an example of, and security for, the
capacity of man, safely and peacefully and wisely to govern
himself under free and popular institutions."

So the fugitive slave bill is an argument against human depravity, showing the capacity of man to govern himself "safely and peacefully and wisely."

He adds, as early as 1643 the New England colonies found it necessary "to insert an article substantially like this one," for the rendition of fugitive servants, and in 1789 the Federal government demanded that the Spaniards should surrender the fugitive slaves of Georgia. Injustice, Gentlemen, has never lacked a precedent since Cain killed Abel. Mr. Curtis continues:--

"When I look abroad over 100,000 happy homes in
Massachusetts and see a people, such as the blessed sun has
rarely shone upon, so intelligent and educated, moral,
religious, progressive, and free to do every thing but
wrong--I fear to say that I should not be in the wrong to
put all this at risk, because our _passionate will_ impels
us to break a promise our wise and good fathers made, not to
allow a _class of foreigners_ to come here, or to _send them
back if they came_."

So the refusal to kidnap Ellen and William Craft came of the "_passionate will_" of the people, and is likely to ruin the happy homes of a moral and religious people!

"_With the rights of these persons_ I firmly believe
_Massachusetts has nothing to do_. It is enough for us that
they have no right to be _here_. Whatever natural rights
they have--and I admit these natural rights to their fullest
extent--this is not the _soil_ on which to vindicate them.
This is _our_ soil, sacred to _our_ peace, on which we
intend to perform _our_ promises, and work out for the
benefit of ourselves and our posterity and the world, the
destiny which our Creator has assigned to _us_."

Gentlemen of the Jury, it is written of that Creator that He is "no Respecter of Persons;" and "hath made of one blood all nations of men for to dwell on all the face of the earth." The "Our Creator" of Mr. Curtis is also the Father of William and Ellen Craft; and that great Soul who has ploughed his moral truths deep into the history of mankind, represents the final Judge of us all as saying to such as scorned his natural Law of Justice and Humanity, "INASMUCH AS YE DID IT NOT TO ONE OF THE LEAST OF THESE YE DID IT NOT TO ME."

Massachusetts is "our soil," is it; "sacred to _our_ peace," which is to be made sure of by stealing our brother men, and giving to Commissioners George T. Curtis and Edward G. Loring ten dollars for making a slave, and only five for setting free a man! Peace and the fugitive slave bill! No, Gentlemen of the Jury, it is vain to cry Peace, Peace--when there is no peace! Ay, there _is_ no peace to the wicked; and though the counsel of the ungodly be carried, it is carried headlong!

In that speech, Gentlemen, Mr. Curtis made a special attack upon me:--

"There has been made within these walls," said he, "the
declaration that an article of the Constitution [the
rendition clause] of the United States 'shall not be
executed, _law or no law_.' A gentleman offered a resolve
... that 'constitution or no constitution, law or no law, we
will not allow a fugitive slave to be taken from
Massachusetts.' The chairman of a public meeting [Hon.
Charles Francis Adams, on October 14th] declared here that
'the law will be resisted, and if the fugitive resists, and
if he slay the slave-hunter, or even the Marshal, and if he
therefor be brought before a Jury of Massachusetts men, that
Jury will not convict him.' And as if there should be
nothing wanting to exhibit the madness which has possessed
men's minds, _murder and perjury_ have been enacted into
virtues, and in this city preached from the sacred desk. I
must not be suspected of exaggerating in the least degree. I
read therefore the following passage from a sermon preached
and published in this city:--

"'Let me suppose a case which may happen here and before
long. A woman flies from South Carolina to Massachusetts to
escape from bondage. Mr. Greatheart aids her in her escape,
harbors and conceals her, and is brought to trial for it.
The punishment is a fine of one thousand dollars and
imprisonment for six months. I am drawn to serve as a juror
and pass upon this offence. I may refuse to serve and be
punished for that, leaving men with no scruples to take my
place, or I may take the juror's oath to give a verdict
according to the law and the testimony. The law is plain,
let us suppose, and the testimony conclusive. Greatheart
himself confesses that he did the deed alleged, saving one
ready to perish. The judge charges that if the jurors are
satisfied of that fact then they must return that he is
guilty. This is a nice matter. Here are two questions. The
one put to me in my official capacity as juror, is this:
"Did Greatheart aid the woman?" The other, put to me in my
natural character as man, is this: "Will you help punish
Greatheart with fine and imprisonment for helping a woman
obtain her unalienable rights?" If I have extinguished my
manhood by my juror's oath, then I shall do my official
business and find Greatheart guilty, and I shall seem to be
a true man; but if I value my manhood I shall answer after
my natural duty to love man and not hate him, to do him
justice, not injustice, to allow him the natural rights he
has not alienated, and shall say, "Not guilty." Then men
will call me forsworn and a liar, but I think human nature
will justify the verdict.'"

"I should like to ask," he continued, "the reverend gentleman in what capacity he expects to be punished for his _perjury_?" Gentlemen of the Jury, I rose and said, "Do you want an answer to your question, sir?" He had charged me with preaching murder and perjury; had asked, How I expected to be punished for my own "PERJURY?" When I offered to answer his question he refused me the opportunity to reply! Thus, Gentlemen, he charged me with recommending men to commit perjury! Did he think I advised men to take an oath and break it? On the other side of the page which he read there stood printed:--

"Suppose a man has sworn to keep the Constitution of the
United States, and the Constitution is found to be wrong in
certain particulars; then his oath is not morally binding,
for before his oath, by his very existence, he is morally
bound to keep the law of God as fast as he learns it. No
oath can absolve him from his natural allegiance to God. Yet
I see not how a man can knowingly, and with a good
Conscience, swear to keep what he deems it wrong to keep,
and will not keep, and does not intend to keep."

Gentlemen, when that speech came to be printed--there was no charge of "perjury" at all, but a quite different sentence![189]

[Footnote 189: See the speech in Boston Courier of November 27th, with the editorial comment, and in Daily Advertiser of 28th, _Thanksgiving Day_. See also the Atlas of November 27th. The Sermon is in 2 Parker's Speeches, 241.]

9. In February, 1851, George T. Curtis issued the warrant for the seizure of Shadrach, who was "hauled" in to the court house before that Commissioner; but "the Lord delivered him out of their hands," and he also escaped out of the United States of America.

10. After the escape or rescue of Shadrach, George T. Curtis telegraphed the news to Mr. Webster, at Washington, declaring "it is levying war;" thus constructing high treason out of the rescue of a prisoner by unarmed men, from the hands of a sub-deputy officer of the United States.

11. George T. Curtis also officiated as Commissioner in the kidnapping of Thomas Sims, in April, 1851; and under the pretence of "extradition," sent him to be scourged in the jail of Savannah, and then to suffer eternal bondage. It was rumored at the time that Charles P. Curtis and Benjamin R. Curtis, his law-partner and son-in-law, were the secret legal advisers and chamber-counsel of the Southern slave-hunters in this case. I know not how true the rumor was, nor whether it was based on new observation of facts, or was merely an inference from their general conduct and character.

12. When Mr. Sims was brought before Judge Woodbury, on _habeas corpus_, Benjamin R. Curtis appeared as counsel for the Marshal, and also assisted Judge Woodbury in strengthening his opinion against Sims, by a written note transmitted by an officer of the Court to the Judge, while he was engaged in delivering his opinion.

13. Gentlemen of the Jury, I have shown you how, in Britain, the Government, seeking to oppress the people and to crush down freedom of speech, put into judicial offices such men as were ready to go all lengths in support of profitable wickedness. You do not forget the men whom the Stuarts made judges: surely you remember Twysden, and Kelyng, and Finch, and Saunders, and Scroggs. You will not forget Edmund Thurlow and John Scott. Well, Gentlemen, in 1851, Judge Woodbury died, and on the recommendation of Mr. Webster, Mr. Benjamin R. Curtis was raised to the dignity he now holds. Of course, Gentlemen, the country will judge of the cause and motive of the selection. No lawyer in New England had laid down such southern "Principles" for foundation of law; he outwent Mr. Sprague. None had rendered such service to the Slave Power. In 1836, he had sought to restore slavery to Massachusetts, and to accomplish that had denied the existence of any Higher Law,--the written statute was the only standard of judicial morals. In 1850, he had most zealously defended the fugitive slave bill,--coming to the rescue of despotism when it seemed doubtful which way the money of Boston would turn, and showing most exemplary diligence in his attempts to kidnap William and Ellen Craft. Gentlemen, if such services were left unpaid, surely "the Union would be in danger!" But I must go on with my sad chronicle.

14. As Circuit Judge of the United States, Benjamin R. Curtis, as well in the construction of juries, as in the construction of the law, exerted all his abilities against the parties indicted for the rescue of Shadrach, though Mr. Hale says his conduct was far better than Judge Sprague's. He did this especially in the case of Elizur Wright, who appeared without counsel, and thus afforded a better opportunity to procure a conviction. But it was in vain--all escaped out of his hands.

15. In 1851, George T. Curtis brought an action for libel against Benjamin B. Mussey, bookseller, who had just published a volume of speeches by the Hon. Horace Mann, one of which was against the business of kidnapping in Boston, wherein George T. Curtis found, as he alleged, matter libellous of himself. That suit remains yet undisposed of; but in it he will doubtless recover the full value of his reputation, on which kidnapping has affixed no stain.

16. In May, 1854, Edward G. Loring issued a warrant for the seizure of Mr. Burns; decided the case before he heard it, having advised the counsel not to oppose his rendition, for he would probably be sent back; held him ironed in his "court," and finally delivered him over to eternal bondage. But in that case, it is said, Mr. Loring, who has no Curtis blood in his veins, did not wish to steal a man; and proposed to throw up his commission rather than do such a deed; but he consulted his step-brother, Charles P. Curtis, who persuaded him it would be dishonorable to decline the office of kidnapping imposed upon him as a United States Commissioner by the fugitive slave bill. Benjamin R. Curtis, it is said, I know not how truly--himself can answer, aided Mr. Loring in forming the "opinion" by which he attempted to justify the "extradition" of Mr. Burns; that is to say, the giving him up as a slave without any trial of his right to liberty, merely on a presumptive case established by his claimant.

17. After Commissioner Loring had seized Mr. Burns, Mr. George T. Curtis, by a communication published in the newspapers, informed the public that he still continued the business of man-hunting at the old stand, where all orders for kidnapping would be promptly attended to. For, he says, there was a statement "that I had declined, or was unwilling or afraid to act. I did not choose that any one whatever should have an excuse for believing that Judge Loring was willing to sit in a case that I had declined." "I thought proper to place myself as it were by his side." "But I never took a fee [for kidnapping], and I never shall take one."[190] Did he remember the fate of the Hebrew Judas, who "betrayed the Innocent Blood," and then cast down the thirty pieces?

[Footnote 190: See Boston Journal of May 29, and Boston Courier of June 7, 1854.]

Hitherto the kidnapping commissioners, though both members of the same family, had pursued their game separately, each on his own account. After this it appears these two are to hunt in couples: Commissioner Loring and Commissioner Curtis "as it were by his side:"--

"Swift in pursuit, but matched in mouth like bells,
_Each under each_."

Gentlemen of the Jury, it is a very painful thing for me to deliver this very sad chronicle of such wicked deeds. But do not judge these men wholly by those acts. I am by no means stingy of commendation, and would rather praise than blame. The two elder Messrs. Curtis have many estimable and honorable qualities,--in private relations it is said--and I believe it--they are uncommonly tender and delicate and refined in the elegant courtesies of common life. I know that they have often been open-handed and generous in many a charity. In the ordinary intercourse of society, where no great moral principle is concerned, they appear as decorous and worthy men. Hon. Benj. R. Curtis,--he will allow me to mention his good qualities before his face,--though apparently destitute of any high moral instincts, is yet a man of superior powers of understanding, and uncommon industry; as a lawyer he was above many of the petty tricks so common in his profession. Strange as it may seem, I have twice seen Mr. George T. Curtis's name among others who contributed to purchase a slave; Mr. Loring's good qualities I have often mentioned, and always with delight.

But this family has had its hand in all the kidnapping which has recently brought such misery to the colored people and their friends; such ineffaceable disgrace upon Boston, and such peril to the natural Rights of man. These men have laid down and advocated the principles of despotism; they have recommended, enforced, and practised kidnapping in Boston, and under circumstances most terribly atrocious. Without their efforts we should have had no man-stealing here. They cunningly, but perhaps unconsciously, represented the low Selfishness of the Money Power at the North, and the Slave Power at the South, and persuaded the controlling men of Boston to steal Mr. Sims and Mr. Burns. In 1836 they sought to enslave a poor little orphan girl, and restore bondage to Massachusetts; in 1851 they succeeded in enthralling a man. Now, Gentlemen, they are seeking to sew up the mouth of New England; there is a sad consistency in their public behavior.

Gentlemen, they are not ashamed of this conduct; when "A Citizen of Boston," last January, related in the New York Tribune some of the facts I have just set forth, "One of the name" published his card in that paper and thanked the "Citizen" for collecting abundant evidence that the "Curtis Family" "have worked hard to keep the _law_ superior to fanaticism, disloyalty, and the _mob_," and declared that "they feel encouraged to continue in the same course and _their children after them_."[191] Mr. Thomas B. Curtis considers some of the acts I have just mentioned "among the most meritorious acts" of his life.[192] Mr. Loring, in his "Remonstrance," justifies Kidnapping!

[Footnote 191: New York Tribune, January 15, 1855.]

[Footnote 192: Daily Advertiser, February 7, 1855.]

They may, indeed, speak well of the bridge which carries them safe over. Three of the family are fugitive slave bill commissioners; one of them intellectually the ablest, perhaps morally the blindest, who so charged me with "Perjury," is the Honorable Judge who is to try me for a "Misdemeanor." Of course he is perfectly impartial, and has no animosity which seeks revenge,--the history of courts forbids the supposition!

Such, Gentlemen, are the antecedents of the Hon. Judge Curtis, such his surroundings. You will presently see what effect they have had in procuring this indictment. It a sad tale that I have presented. He told it, not I; he did the deeds, and they have now found words.

* * * * *

Gentlemen of the Jury, I shall next speak of Judge Curtis's charge to the grand-jury, delivered in Boston, June 7, 1854--only five days after his kinsman had sent Mr. Burns into Slavery. Here is that part of the charge which relates to our case.

"There is another criminal law of the United States to which
I must call your attention, and give you in charge. It was
enacted on the 13th of April, 1790, and is in the following
words:--

"'If any person shall knowingly or wilfully obstruct,
resist, or oppose any officer of the United States, in
serving, or attempting to serve, or execute any mesne
process, or warrant, or any rule or order of any of the
courts of the United States, or any other legal writ or
process whatever, or shall assault, beat, or wound any
officer, or other person duly authorized, in serving or
executing any writ, rule, order, process, or warrant,
aforesaid, such person shall, on conviction, be imprisoned
not exceeding twelve months, and fined not exceeding three
hundred dollars.'

"You will observe, Gentlemen, that this law makes no
provision for a case where an officer, or other person duly
authorized, is killed by those unlawfully resisting him.
That is a case of murder, and is left to be tried and
punished under the laws of the State, within whose
jurisdiction the offence is committed. Over that offence
against the laws of the State of Massachusetts we have here
no jurisdiction. It is to be presumed that the duly
constituted authorities of the State will, in any such case,
do their duty; and if the crime of murder has been
committed, will prosecute and punish all who are guilty.

"Our duty is limited to administering the laws of the United
States; and by one of those laws which I have read to you,
to obstruct, resist, or oppose, or beat, or wound any
officer of the United States, or other person duly
authorized, in serving or executing any legal process
whatsoever, is an offence against the laws of the United
States, and is one of the subjects concerning which you are
bound to inquire.

"It is not material that the same act is an offence both
against the laws of the United States and of a particular
State. Under our system of government the United States and
the several States are distinct sovereignties, each having
its own system of criminal law, which it administers in its
own tribunals; and the criminal laws of a State can in no
way affect those of the United States. The offence,
therefore, of obstructing legal process of the United States
is to be inquired of and treated by you as a misdemeanor,
under the Act of Congress which I have quoted, without any
regard to the criminal laws of the State, or the nature of
the crime under these laws.

"This Act of Congress is carefully worded, and its meaning
is plain. Nevertheless, there are some terms in it, and some
rules of law connected with it, which should be explained
for your guidance. And first, as to the process, the
execution of which is not to be obstructed.

"The language of the Act is very broad. It embraces every
legal process whatsoever, whether issued by a court in
session, or by a judge, or magistrate, or commissioner
acting in the due administration of any law of the United
States. You will probably experience no difficulty in
understanding and applying this part of the law.

"As to what constitutes an obstruction--it was many years
ago decided, by Justice Washington, that to support an
indictment under this law, it was not necessary to prove the
accused used or even threatened active violence. Any
obstruction to the free action of the officer, or his lawful
assistants, wilfully placed in his or their way, for the
purpose of thus obstructing him or them, is sufficient. And
it is clear that if a multitude of persons should assemble,
even in a public highway, with the design to stand together,
and thus prevent the officer from passing freely along the
way, in the execution of his precept, and the officer should
thus be hindered or obstructed, this would of itself, and
without any active violence, be such an obstruction as is
contemplated by this law. If to this be added use of any
active violence, then the officer is not only obstructed,
but he is resisted and opposed, and of course the offence is
complete, for either of them is sufficient to constitute it.

"If you should be satisfied that an offence against this law
has been perpetrated, you will then inquire by whom; and
this renders it necessary for me to instruct you concerning
the kind and amount of participation which brings
individuals within the compass of this law.

"And first, all who are present and actually obstruct,
resist, or oppose, are of course guilty. So are 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, though they do not actually obstruct,
resist, or oppose. If they are present for the purpose of
affording assistance in obstructing, resisting, or opposing
the officers, and are so situated as to be able in any event
which may occur, actually to aid in the common design,
though no overt act is done by them, they are still guilty
under this law. The offence defined by this act is a
misdemeanor; and it is rule of law that whatever
participation, in case of felony, would render a person
guilty, either as a principal in the second degree, or as an
accessory before the fact, does, in a case of misdemeanor,
render him guilty as a principal; in misdemeanors all are
principals. And, therefore, in pursuance of the same rule,
not only those who are present, but those who, though absent
when the offence was committed, did procure, counsel,
command, or abet others to commit the offence, are
indictable as principal.

"Such is the law, and it would seem that no just mind could
doubt its propriety. If persons having influence over others
use that influence to induce the commission of crime, while
they themselves remain at a safe distance, that must be
deemed a very imperfect system of law which allows them to
escape with impunity. Such is not our law. It treats such
advice as criminal, and subjects the giver of it to
punishment according to the nature of the offence to which
his pernicious counsel has led. If it be a case of felony,
he is by the common law an accessory before the fact, and by
the laws of the United States and of this State, is
punishable to the same extent as the principal felon. If it
be a case of misdemeanor, the adviser is himself a principal
offender, and is to be indicted and punished as if he
himself had done the criminal act. It may be important for
you to know what, in point of law, amounts to such an
advising or counselling another as will be sufficient to
constitute this legal element in the offence. It is laid
down by high authority, that though a mere tacit
acquiescence, or words, which amount to a bare permission,
will not be sufficient, yet such a procurement may be,
either by direct means, as by hire, counsel, or command, or
indirect, by evincing an express liking, approbation, or
assent to another's criminal design. From the nature of the
case, the law can prescribe only general rules on this
subject. My instruction to you is, that language addressed
to persons who immediately afterwards commit an offence,
actually intended by the speaker to incite those addressed
to commit it, and adapted thus to incite them, is such a
counselling or advising to the crime as the law
contemplates, and the person so inciting others is liable to
be indicted as a principal.

"In the case of the _Commonwealth_ v. _Bowen_ (13 Mass. R.
359), which was an indictment for counselling another to
commit suicide, tried in 1816, Chief Justice Parker
instructing the jury, and speaking for the Supreme Court of
Massachusetts, said:--

"'The government is not bound to prove that Jewett would not
have hung himself, had Bowen's counsel never reached his
ear. The very act of advising to the commission of a crime
is of itself unlawful. The presumption of law is that advice
has the influence and effect intended by the adviser, unless
it is shown to have been otherwise; as that the counsel was
received with scoff, or was manifestly rejected and
ridiculed at the time it was given. It was said in the
argument that Jewett's abandoned and depraved character
furnishes ground to believe that he would have committed the
act without such advice from Bowen. Without doubt he was a
hardened and depraved wretch; but it is in man's nature to
revolt at self-destruction. When a person is predetermined
upon the commission of this crime, the seasonable
admonitions of a discreet and respected friend would
probably tend to overthrow his determination. On the other
hand, the counsel of an unprincipled wretch, stating the
heroism and courage the self-murderer displays, might
induce, encourage, and fix the intention, and ultimately
procure the perpetration of the dreadful deed; and if other
men would be influenced by such advice, the presumption is
that Jewett was so influenced. He might have been influenced
by many powerful motives to destroy himself. Still the
inducements might have been insufficient to procure the
actual commission of the act, and one word of additional
advice might have turned the scale.'

"When applied--as this ruling seems to have been here
applied--to a case in which the advice was nearly connected,
in point of time, with the criminal act, it is, in my
opinion, correct. If the advice was intended by the giver to
stir or incite to a crime--if it was of such a nature as to
be adapted to have this effect, and the persons incited
immediately afterwards committed that crime--it is a just
presumption that they were influenced by the advice or
incitement to commit it. The circumstances, or direct proof,
may or may not be sufficient to control this presumption;
and whether they are so, can duly be determined in each
case, upon all its evidence.

"One other rule of law on this subject is necessary to be
borne in mind--the substantive offence to which the advice
or incitement applied must have been committed; and it is
for that alone the adviser or procurer is legally
accountable. Thus if one should counsel another to rescue
one prisoner, and he should rescue another, unless by
mistake; or if the incitement was to rescue a prisoner, and
he commit a larceny, the inciter is not responsible. But it
need not appear _that the precise time, or place, or means
advised_, were used. Thus if one incite A. to murder B., but
advise him to wait until B. shall be at a certain place at
noon, and A. murders B. at a different place in the morning,
the adviser is guilty. So if the incitement be to poison,
and the murderer shoots, or stabs. So if the counsel be to
beat another, and he is beaten to death, the adviser is a
murderer; for having incited another to commit an unlawful
act, he is responsible for all that ensues upon its
execution.

"These illustrations are drawn from cases of felonies,
because they are the most common in the books and the most
striking in themselves; but the principles on which they
depend are equally applicable to cases of misdemeanor. In
all such cases the real question is, whether the accused did
procure, counsel, command, or abet the substantive offence
committed. If he did, it is of no importance that his advice
or directions were departed from in respect to the time, or
place, or precise mode or means of committing it.

"Gentlemen: The events which have recently occurred in this
city, have rendered it my duty to call your attention to
these rules of law, and to direct you to inquire whether in
point of fact the offence of obstructing process of the
United States has been committed; if it has, you will
present for trial all such persons as have so participated
therein as to be guilty of that offence. And you will allow
me to say to you that if you or I were to begin to make
discriminations between one law and another, and say this we
will enforce and that we will not enforce, we should not
only violate our oaths, but so far as in us lies, we should
destroy the liberties of our country, which rest for their
basis upon the great principle that our country is governed
by laws, constitutionally enacted, and not by men.

"In one part of our country the extradition of fugitives
from labor is odious; in another, if we may judge from some
transactions, the law concerning the extradition of
fugitives from justice has been deemed not binding; in
another still, the tariff laws of the United States were
considered oppressive, and not fit to be enforced.

"Who can fail to see that the government would cease to be a
government if it were to yield obedience to those local
opinions? While it stands, all its laws must be faithfully
executed, or it becomes the mere tool of the strongest
faction of the place and the hour. If forcible resistance to
one law be permitted practically to repeal it, the power of
the mob would inevitably become one of the constituted
authorities of the State, to be used against any law or any
man obnoxious to the interests and passions of the worst or
most excited part of the community; and the peaceful and the
weak would be at the mercy of the violent.

"It is the imperative duty of all of us concerned in the
administration of the laws to see to it that they are
firmly, impartially, and certainly applied to every offence,
whether a particular law be by us individually approved or
disapproved. And it becomes all to remember, that forcible
and concerted resistance to any law is civil war, which can
make no progress but through bloodshed, and can have no
termination but the destruction of the government of our
country, or the ruin of those engaged in such resistance. It
is not my province to comment on events which have recently
happened. They are matters of fact which, so far as they are
connected with the criminal laws of the United States, are
for your consideration. I feel no doubt that, as good
citizens and lovers of our country, and as conscientious
men, you will well and truly observe and keep the oath you
have taken, diligently to inquire and true presentment make
of all crimes and offences against the laws of the United
States given you in charge."[193]

[Footnote 193: Law Reporter, August, 1854.]

Now gentlemen look at some particulars of this charge.

1. "If a multitude of persons shall assemble _even in a public highway_, with the design to _stand together, and thus prevent the officer from passing freely along that way_, in the execution of his precept, and the officer should thus be _hindered and obstructed_, this would, of itself, and without any active violence, be such an obstruction as is contemplated by this law." Of course, all persons thus assembled in the public highway were guilty of that offence, and liable to be punished with imprisonment for twelve months and a fine of three hundred dollars: "_All who are present_, and obstruct, resist, or oppose, _are of course guilty_." Their "design" is to be inferred from "the fact" that the officer was obstructed.

That is not all, this offence in technical language the Judge calls a "misdemeanor," and in "misdemeanors," he says, "all are principals." So, accordingly, not only are all guilty who _actually obstruct_ but likewise all who are "leagued in the common design, and _so situated as to be able_ in case of need _to afford assistance to those actually engaged_, though they do not actually obstruct, resist, or oppose." These are obstructors by construction No. 1; they must have been several thousands in number.

But even that is not all; the judicial logic of deduction goes further still, and he adds, "Not only those who are present, but _those who_ though _absent_ when the offence was committed, _did procure, counsel, command, or abet_ others to commit the offence are indictable as principals." These are obstructors by construction No. 2.

2. Next he determines what it is which "amounts to _such advising or counselling_ another as will be sufficient to constitute this legal element in the offence." First he constructs the physical act which is the misdemeanor, namely, standing in the high road and thereby hindering a kidnapper from "passing freely along that way; or being so situated as to be able to afford assistance to others thus standing; or advising another thus to stand, or be situated:" next he constructs the _advice_, the metaphysical act, which is equally a "misdemeanor." This is the square root of construction No. 2. Look at this absurd quantity.

"_Such a procurement may be_, either by direct means, as by hire, counsel, or command, or indirect, _by evincing an express liking, approbation, or assent_." Thus the mere casual expression, "I wish Burns would escape, or I wish somebody would let him out," is a "Misdemeanor;" it is "evincing an express liking." Nodding to any other man's similar wish is a misdemeanor. It is "approbation." Even smiling at the nod is a crime--it is "assent." Such is the threefold shadow of this constructive shade. But even that is not all. A man is held responsible for what he evinced no _express_ or implied _liking_ for: "_it need not appear that the precise time, or place, or means advised, were used_." Accordingly, he that "evinces an express liking," "_is responsible for all that ensues upon its execution_." He evinces his assent to the End and is legally responsible for any Means which any hearer thereof shall, at any time, or in any place, make use of to attain that end!

Gentlemen of the Jury, this charge is a _quo warranto_ against all Freedom of Speech. But suppose it were good law, and suppose the Grand-Jury obedient to it, see how it would apply.

All who evinced an express liking, approbation, or assent to the rescue of Mr. Burns are guilty of a misdemeanor; if they "evinced an express liking" that he should be rescued by a miracle wrought by Almighty God,--and some did express "approbation" of that "means,"--they are indictable, guilty of a "misdemeanor;" "it need not appear that the precise time, or place, or means advised, were used!" If any colored woman during the wicked week--which was ten days long--prayed that God would deliver Anthony, as it is said his angel delivered Peter, or said "Amen" to such a prayer, she was "guilty of a misdemeanor;" to be indicted as a "principal."

So every man in Boston who, on that bad Friday, stood in the streets of Boston between Court Square and T Wharf, was "guilty of a misdemeanor," liable to a fine of three hundred dollars, and to jailing for twelve months. All who at Faneuil Hall stirred up the minds of the people in opposition to the fugitive slave bill; all who shouted, who clapped their hands at the words or the countenance of their favorites, or who expressed "approbation" by a whisper of "assent," are "guilty of a misdemeanor." The very women who stood for four days at the street corners, and hissed the infamous Slave-hunters and their coadjutors; they, too, ought to be punished by fine of three hundred dollars and imprisonment for a year! Well, there were fifteen thousand persons "assembled" "in the highway" of the city of Boston that day opposed to kidnapping; half the newspapers in the country towns of Massachusetts "evinced an express liking" for freedom, and opposed the kidnapping; they are all "guilty of a misdemeanor;" they are "Principals." Nay, the ministers all over the State, who preached that kidnapping was a sin; those who read brave words out of the Old Testament or the New; those who prayed that the victim might escape; they, likewise, were "guilty of a misdemeanor," liable to be fined three hundred dollars and jailed for twelve months.[194]

[Footnote 194: 2 Parker's Additional, 280.]

But where did Judge Curtis find his right to levy Ship-money, Tonnage, and Poundage on the tongues of men; where did he find his "law?" Surely not in the statute. When the bill was pending in 1790, suppose his construction of the statute had been declared to Congress--who would have voted for a law so monstrous? The statute lay in the Law-book for nearly seventy years, and nobody ever applied it to a case like this.

Gentlemen, I have shown you already how British judges in the time of the Jameses and Charleses perverted the law to the basest of purposes. I mentioned, amongst others, the work of Twysden and Kelyng and Jones. This is a case like those. Just now I spoke of the action of Chief Justice Parker who said it was not for the jury to judge whether a law _were harsh or not_; I showed how he charged the jury in the case of Bowen, and how the jury returned a verdict of "not guilty," thus setting his inhuman charge at nought.[195] But Judge Curtis, for his law, relies upon Judge Parker's charge. It is not a Statute made by the legislature that Judge Curtis relies on for his law; it is not a Custom of the Common law; it is not an Opinion of the Court solemnly pronounced after mature deliberation; it is only the charge of a single judge to a jury in a special case, and one which the jury disregarded even then!

[Footnote 195: See above, p. 112.]

But where did Judge Parker, an estimable man, find his law? Mr. Perez Morton, the Attorney-General, found it in Kelyng's Reports. In the case of Bowen only one authority is referred to for that odious principle on which the judge sought to hang him; that authority is taken from "9 Charles I.;" from the year 1634--the worst age of the Stuart tyranny! But even that authority was not a Statute law, not a Custom of the People, not the Opinion of a Court solemnly pronounced. It was the charge of a single judge--a charge to a jury, made by an inferior judge, of an inferior court, in a barbarous age, under a despotic king! Hearken to this,--from the volume of Kelyng's Reports.[196] "_Memorandum_, That my Brother Twysden shewed me a Report which he had of the Charge given by Justice Jones to the grand-jury at the King's Bench Barr, in Michaelmas Term, 9 Carl. I." Gentlemen of the Jury, that charge no more settled the law even in 1634, than Judge Sprague's charge telling the _grand-jury to "obey both"_ the law of God and the law of man which is exactly opposite thereto, settled the law of the United States and the morality of the People. But yet that is all the law the government had to hang Bowen with. The jury made nothing of it.[197]

[Footnote 196: Page 52. See above, p. 112.]

[Footnote 197: Jones's "opinion" relates to a case of _murder_ by the advice of an absent person, not at all to _suicide by the advice of another_, so it could not apply to the case of Bowen.]

But Kelyng's Reports are of no value as authority. Here is what Lord Campbell, now Chief Justice of the King's Bench, says of them and their author. I read it to you long ago. "I ought to mention that among his other vanities he had the ambition to be an author; and he compiled a folio volume of decisions in criminal laws, _which are of no value whatever except to make us laugh at some of the silly egotisms with which they abound_."[198] Twysden, who showed him the Report of the charge, is of little value, and of no authority. I mentioned his character before.

[Footnote 198: 2 Campbell's Justices, 406.]

Justice Jones, who made the charge, would hardly be an authority in the English courts in a nice question of construction. He allowed the king to levy ship-money, as I have shown before,[199] and dared not perform the duties of his office and so protect the Liberty of the Subject when the king smote thereat. He was brought before the House of Commons to answer for his conduct, in 1628. "His memory," says Echard, "suffers upon the account of his open judgment for the ship-money, the unhappy consequence of which he did not live to see."[200]

[Footnote 199: Above, p. 23.]

[Footnote 200: Parl. Hist. 290; 3 St. Tr. 844, 1181, 162; 2 Echard, 186.]

Judge Kelyng, the great authority in this case, was notorious for violating alike Justice and the law. Out of a riot committed by some apprentices he constructed the crime of High Treason, and sentenced thirteen men to death. He fined and imprisoned jurors because they refused to return the wicked, illegal verdict he demanded. With language too obscene to utter in this century, he mocked at the Great Charter of English Liberty. But at last the scandal was too great even for the reign of Charles II., and in 1667 the "Grand Committee of Justice" in the House of Commons, after examining witnesses and hearing him on his own behalf, reported:--

1. "That the proceedings of the Lord Chief Justice in the
cases referred to us are innovations in the trial of men for
their lives and liberties, and that he hath used an
arbitrary and illegal power which is of dangerous
consequence to the lives and liberties of the people of
England."

2. "That in place of Judicature, the Lord Chief Justice hath
undervalued, vilified, and condemned MAGNA CHARTA, the great
preserver of our lives, freedom, and property."

3. "That the Lord Chief Justice be brought to trial, in
order to condign punishment, in such manner as the House
shall judge most fit and requisite."[201]

[Footnote 201: See above, p. 23, 39, 113, 125; 1 Campbell, _Ibid._ 406; 6 St. Tr. 76, 229, 171, 532, 769, 879, 992; Pepys' Diary, 17 Oct., 1667; Commons Journal, 16th Oct., 1667.]

Some of the lawyers whom he had browbeaten, generously interceded for him. He made an abject submission "with great humility and reverence," and the House desisted from prosecution. "He was abundantly tame for the rest of his days," says Lord Campbell, "fell into utter contempt," "and _died to the great relief of all who had any regard for the due administration of justice_."