Read Ebook: 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 Parker Theodore

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John Hampden was taxed twenty shillings--he refused to pay, though he knew well the fate of Richard Chambers a few years before. The case came to trial in 1637, in the Court of Exchequer before Lord Chancellor Coventry, a base creature, mentioned before. It was "the great case of Ship-money." The ablest lawyers in England showed that the tax was contrary to Magna Charta, to the fundamental laws of the realm, to the Petition of Right and to the practice of the kingdom. Hampden was defeated. Ten out of the twelve Judges sided with the King. Croke as the eleventh had made up his mind to do the same, but his noble wife implored him not to sacrifice his conscience for fear of danger, and the Woman, as it so often happens, saved the man. Attorney-General Banks thus set forth the opinion of the Government, and the consequent "decision" of the Judges. He rested the right of levying Ship-money on the "intrinsic, absolute authority of the King." There was no Higher Law in Old England in 1634! Banks said, "this power is innate in the person of an absolute King, and in the persons of the Kings of England. All-magistracy it is of nature; and obedience and subjection it is of nature. This power is not anyways derived from the people, but reserved unto the King when positive laws first began. For the King of England, he is an absolute monarch; nothing can be given to an absolute prince but what is inherent in his person. He can do no wrong. He is the sole judge and we ought not to question him, whom the law trusts we ought not to distrust." "The Acts of Parliament contain no express words to take away so high a prerogative; and the King's prerogative, even in lesser matters, is always saved, where express words do not restrain it."

It required six months of judicial labor to bring forth this result, which was of "infinite disservice to the crown." Thereupon Mr. Hallam says:--

"Those who had trusted to the faith of the judges were undeceived by the honest repentance of some, and looked with indignation on so prostituted a crew. That respect for courts of justice which the happy structure of our Judicial administration has in general kept inviolate, was exchanged for distrust, contempt, and a desire of vengeance. They heard the speeches of some of the Judges with more displeasure than even their final decision. Ship-money was held lawful by Finch and several other Judges, not on the authority of precedents which must in their nature have some bounds, but on principles subversive of every property or privilege in the subject. Those paramount rights of monarchy, to which they appealed to-day in justification of Ship-money, might to-morrow serve to supersede other laws, and maintain more exertions of despotic power. It was manifest by the whole strain of the court lawyers that no limitations on the King's authority could exist but by the King's sufferance. This alarming tenet, long bruited among the churchmen and courtiers, now resounded in the halls of justice."

Thus by the purchased vote of a corrupt Judiciary all the laws of Parliament, all the customs of the Anglo-Saxon tribe, Magna Charta itself with its noble attendant charters, were at once swept away, and all the property of the kingdom put into the hands of the enemy of the People. These four decisions would make the King of England as absolute as the Sultan of Turkey, or the Russian Czar. If the opinion of the Judges in the case of Impositions and Ship-money were accepted in law,--then all the Property of the People was the King's; if the courts were correct in their judgments giving the King the power by his mere will to imprison any subject, during pleasure, and also to do the same even with members of Parliament and punish them for debates in the House of Commons, then all liberty was at an end, and the King's Prerogative extended over all acts of Parliament, all property, all persons.

The nation was enraged. Mainwaring was brought before Parliament, punished with fine and imprisonment and temporary suspension from office and perpetual disability for ecclesiastical preferment. But the King who ordered the publication of the sermons, and who doubtless had induced him to preach them, immediately made him Rector of Stamford Parish, soon appointed him Dean of Worcester, and finally in 1645 made him Bishop of St. David's. A few years ago such clerical apostasy would seem astonishing to an American. But now, Gentlemen of the Jury, so rapid has been the downfall of public virtue, that men filling the pulpits once graced and dignified by noblest puritanic piety, now publicly declare there is no law of God above the fugitive slave bill. Nay, a distinguished American minister boldly proclaimed his readiness to send his own Mother into eternal bondage! Thus modern history explains the old; and the cheap bait of a republican bribe can seduce American dissenters, as the wealthy lure of royal gifts once drew British churchmen into the same pit of infamy. Alas, hypocrisy is of no sect or nation.

Gentlemen, the Government of England once decreed "that every clergyman, four times in the year, should instruct his parishioners in the Divine right of Kings, and the damnable sin of resistance." No Higher Law! America has ministers who need no act of Parliament to teach them to do the same; they run before they are sent.

London still remained the strong-hold of commerce, of the Protestant Religion, and of liberal Ideas in domestic Government; for though subsequently corrupted by lust of gain, which sought a monopoly, the great commercial estates and families of England were not then on the side of Despotism, as now strangely happens in America.

When the king sought to ruin Shaftesbury,--a corrupt man doubtless, but then on the side of liberty, the enemy of encroaching despotism,--a London Grand-Jury refused to find a bill, and was warmly applauded by the city. Their verdict of IGNORAMUS was a "personal liberty bill" for that time, and therefore was the king's wrath exceeding hot, for "Ignoramus was mounted in Cathedra," and there was a stop put to such wickedness. So London must be brought down. She refused to surrender her Charter. In 1682 the king proceeded to wrest it from her by the purchased hand of the courts of law. But even they were not quite adequate to the work. So Chief Justice Pemberton was displaced, and Saunders,--a man as offensive in his personal habit of body as he was corrupt in conduct and character--was put in his office. Dolbin, too just for the crime demanded of him, was turned out, and Withins made to succeed him. For "so great a weight was there at stake as could not be trusted to men of doubtful principles," says North. Saunders, who had plotted this whole matter, was struck with an apoplexy when sentence was to be given, but sent his opinion in writing. Thus on the judgment given by only two judges, who assigned no reasons for their decision, it was declared that the Charter of London was forfeit, and the liberties and franchises of the city should "be seized into the king's hands."

Thus fell the charter of London! Gentlemen of the Jury, the same sword was soon to strike at the neck of New England; the charter of Massachusetts could not be safe in such a time.

One State-secret lay at the bottom of the Stuarts' plans,--to appoint base men for judges, and if by accident a just man came upon the bench, to keep him in obscurity or to hustle him from his post. What names they offer us--Kelyng, Finch, Saunders, Wright, Jeffreys, Scroggs! infamous creatures, but admirable instruments to destroy generous men withal and devise means for the annihilation of the liberties of the people. Historians commonly dwell on the fields of battle, recording the victories of humanity, whereof the pike and gun were instruments; but pass idly over the more important warfare which goes on in the court house, only a few looking on, where lawyers are the champions of mankind, and the battle turns on a sentence; nay, on a word which determines the welfare of a nation for ages to come. On such little hinges of law do the great gates hang, and open or shut to let in the happiness or the ruin of millions of men! Naseby and Worcester are important places truly, venerable for great deeds. Cromwell and Blake are names not likely to perish while men can appreciate the heroism which sheds blood. But Westminster Hall has rung with more important thunder than cannon ever spoke, and Pym and Selden, St. John and Hampden--nay, Penn, Bunyan, Fox, Lilburne--have done great service for mankind. Gentlemen of the Jury, it is a matter of great magnitude which hinges on the small question of fact and law to-day. You are to open or shut for Humanity. If the People make themselves sheep there will be wolves enough to eat you up.

It is difficult to calculate the amount of evil wrought by such corrupt judges as I have spoken of; they poison the fountains of society. I need not speak of monsters like Scroggs and Jeffreys, whose names rot in perpetual infamy, but creatures less ignoble, like Wright, Saunders, Finch, Kelyng, Thurlow, Loughborough, and their coadjutors, must be regarded as far more dangerous than thieves, murderers, or pirates. A cruel, insolent Judge selecting the worst customs, the most oppressive statutes, and decisions which outrage human nature--what an amount of evil he can inflict on groaning humanity!

Gentlemen of the Jury, in this long sad history of judicial tyranny in England there is one thing particularly plain: such judges hate freedom of speech, they would restrict the Press, the Tongue, yes, the Thought of mankind. Especially do they hate any man who examines the actions of the government and its servile courts, and their violation of justice and the laws. They wish to take exemplary and malignant vengeance on all such. Let me freshen your knowledge of some examples.

"There are a set of men ... that too much approve and countenance such vulgar ways, ... that embrace all sorts of informations, true or false, likely or impossible, nay though never so silly and ridiculous, they refuse none; so shall all addresses be made to them, and they be looked on as the only patrons of religion and government!"

His associates chimed in with accordant howl. Puny Judge Jones declared,--

Accordingly Mr. Radley, for that act, was convicted of speaking "scandalous words against the Lord Chief Justice Scroggs" and fined ?200.

Mr. Hudson says of the Star-Chamber, "So tender the court is of upholding the honor of the sentence, as they will punish them who speak against it with great severity."

Of course the packed jury found him guilty; he was fined ?10,000.

Gentlemen of the Jury, such judges, with such kings and cabinets, have repeatedly brought the dearest rights of mankind into imminent peril. Sad indeed is the condition of a nation where Thought is not free, where the lips are sewed together, and the press is chained! Yet the evil which has ruined Spain and made an Asia Minor of Papal Italy, once threatened England. Nay, Gentlemen of the Jury, it required the greatest efforts of her noblest sons to vindicate for you and me the right to print, to speak, to think. Milton's "Speech for the Liberty of unlicensed Printing" is one monument of the warfare which lasted from Wicliffe to Thomas Carlyle. But other monuments are the fines and imprisonment, the exile and the beheading of men and women! Words are "sedition," "rebellion," "treason;" nay, even now at least in New England, a true word is a "Misdemeanor," it is "obstructing an officer." At how great cost has our modern liberty of speech been purchased! Answer John Lilburne, answer William Prynn, and Selden, and Eliot, and Hampden, and the other noble men who

Answer Fox and Bunyan, and Penn and all the host of Baptists, Puritans, Quakers, martyrs, and confessors--it is by your stripes that we are healed! Healed! are we healed? Ask the court if it be not a "misdemeanor" to say so!

But spite of all these impediments in the way of liberty, the voice of humanity could not be forever silenced. Now and then a virtuous and high-minded judge appeared in office--like Hale or Holt, Camden or Erskine. Even in the worst times there were noble men who lifted up their voices. Let me select two examples from men not famous, but whose names, borne by other persons, are still familiar to this court.

In 1627 Sir Robert Phillips, member for Somersetshire, in his place in Parliament, thus spoke against the advance of despotism:--

"I read of a custom among the old Romans, that once every year they had a solemn feast for their slaves; at which they had liberty, without exception, to speak what they would, thereby to ease their afflicted minds; which being finished, they severally returned to their former servitude. This may, with some resemblance and distinction, well set forth our present state; where now, after the revolution of some time, and grievous sufferance of many violent oppressions, we have, as those slaves had, a day of liberty of speech; but shall not, I trust, be hereafter slaves, for we are free: yet what new illegal proceedings our estates and persons have suffered under, my heart yearns to think, my tongue falters to utter. They have been well represented by divers worthy gentlemen before me; yet one grievance, and the main one, as I conceive, hath not been touched, which is our Religion: religion, Mr. Speaker, made vendible by commission, and men, for pecuniary annual rates, dispensed withal; Judgments of law against our liberty there have been three; each latter stepping forwarder than the former, upon the Rights of the Subject; aiming, in the end, to tread and trample underfoot our law, and that even in the form of law."

In 1641 Sir Philip Parker, Knight of the Shire for Suffolk, in his place in Parliament, thus spoke:--

Six of the wicked judges were soon brought to trial.

This same threefold experiment of despotism which was attempted in England, was tried also in America by the same tyrannical hand. Here, also, the encroaching power put creatures of its arbitrary will in judicial offices; they then by perverting the laws, punished the patriots, and next proceeded to destroy the best institutions of the land itself. Here I shall take but a few examples, selected from the colonial history of our own New England.

He sought to wrest the charters from the Colonies; that of Rhode Island fell into his hands; Connecticut escaped by a "miracle:"

"The Charter-Oak--it was the tree That saved our sacred Liberty."

Andros denied the colonial title to lands, claiming that as the charter was declared void, all the lands held under its authority escheated to the crown,--"The calf died in the cow's belly." A deed of purchase from the Indians was "worth no more than the scratch of a bear's paw." "The men of Massachusetts did much quote Lord Coke" for their titles: but Rev. John Higginson, minister of the first church in Salem, the son of the first minister ever ordained in New England,--and ancestor of this noble-hearted man who is now also indicted for a "misdemeanor,"--found other laws for their claim, and insisted on the citizens' just and natural right to the lands they had reclaimed from the wilderness. Andros said, "You are either subjects, or else you are rebels;" and in either case, their lands would be forfeit.

Andros hated freedom of speech and of thought. He was to allow no unlicensed printing. Randolph was appointed censor of the press, and ordered the printer to publish nothing without his approbation, nor "any almanac whatever." There must be but one town meeting in a year, and no "deliberation" at that; no "agitation," no discussion of grievances. There must be no preaching on the acts of the government. Rev. Dr. Increase Mather, one of the ablest men in the Colonies, was the special object of his hate. Randolph advised the authorities to forbid any non-conformist minister to land in New England without the special consent of the governor, and that he should restrain such as he saw fit to silence. The advice was not lost on such willing ears. John Gold, of Topsfield, was tried for "treasonable words," and fined fifty pounds--a great deal more at Topsfield in 1687, than "three hundred dollars" is now in Boston. Rev. Increase Mather had opposed the surrender of the Charter of Massachusetts, and published his reasons; but with such prudence, for he was careful how he "evinced an express liking" for justice, that it was difficult to take hold of him. So the friends of government forged a letter with his name, to a person in Amsterdam. Randolph showed the letter to persons whom he wished to prejudice against the alleged writer. When Mr. Mather learned the facts, he wrote a letter to a friend, clearing himself, and charging the forgery on Randolph or his brother. Randolph brought his action for a libel, claiming ?500 damages. But it came to nothing--then. Now times are changed!

But notwithstanding the attempt to stifle speech, a great tall minister at Rowley, called Andros "a wicked man!" For that offence he was seized and put in prison! He, also, like Higginson, is represented in this court by one of his own name; and the same inextinguishable religious fire which burned in the bosom of Robert in Old England, and from Samuel in New England flashed into the commissioned face of Andros, now lightens at this bench from the eyes of WENDELL PHILLIPS, who confers new glory on his much-honored ancestor.

Gentlemen of the Jury, you know how this wickedness was brought to an end. If the courts would not decree Justice, there was a rougher way of reaching it, and having it done. Civil war, revolution by violence, came in place of the simple forms of equity, which the judges had set at nought. William of Orange, a most valiant son-in-law, drove the foul tyrant of Old England from that Island, where the Stuarts have ever since been only "Pretenders;" and on the 19th of April, 1689, the people of Massachusetts had the tyrant of New England put solemnly in jail! We were rid of that functionary for ever, and all such "commissioners" have been held odious in New England ever since the days of Andros. Eighty-six years later came another 19th of April, also famous. Well said Secretary Randolph, "Andros has to do with a perverse people,"--they would not bow to such tyranny in 1689. But he afterwards became a quite acceptable governor in Virginia,--where, I doubt not, he has descendants in African bondage at this day.

Thus law was a threefold cord wherewith to bind the strong Puritan. But his eyes were not put out--not then. Blindness came at a later day--when he had laid his head in the lap of a not attractive Delilah. With such judges and governors, backed by a standing army of hirelings--how soon would her liberty go down, and the Anglo-American States resemble Spanish America!

In 1768 John Hancock was arrested at Boston--for a "misdemeanor;" I suppose, "obstructing an officer," or some such offence. The government long sought to procure indictments against James Otis--who was so busy in fencing out despotism--Samuel Adams, and several other leading friends of the colony. But I suppose the judge did not succeed in getting his brother-in-law put on the grand-jury, and so the scheme fell through. No indictment for that "misdemeanor" then. Boston had the right men to do any thing for the crown, but they did not contrive to get upon the grand-jury.

"The Dog it was that died."

Edes and Gill never saw Africa; the patriotic lawyers and printers made no reluctant voyage to England.

"The Dog it was that died."

In 1765 it was too late to conquer America. What Andros and Randolph could accomplish in 1686 with their sixty soldiers, could not be done in 1768 with all the red coats Britain could send out: nor in 1778 with all the Hessians she could purchase. The 19th of April, 1689, foretold another 19th of April--as that many to-morrows after to-day! In the House of Lords Camden and Pitt thought Parliament not omnipotent. Samuel Adams declared "Acts of Parliament against natural equity are void;" prayed that "Boston might become a Christian Sparta," and looked to the Law of an Omnipotence somewhat higher than a king or a court. He not only had Justice, but also the People on his side. What came of that last attempt of the last king of New England to establish a despotism here? The same, Gentlemen, which will ultimately come of all such attempts.

Gentlemen of the Jury, there is one great obstacle which despotism has found in Anglo-Saxon lands, steadily opposing its steady attempts to destroy the liberties of the People. It is easy for the controlling power, which represents the Centripetal Tendency of the Nation, to place its corrupt and servile creatures in judicial offices, vested with power to fine, to imprison, and to kill; it is then easy for them to determine on the destruction of all such friends of Justice and Humanity as represent the Centrifugal Tendency of the Nation; and with such judicial instruments it is not difficult to wrest and pervert law in order to crush the Patriots, and construct a word into "Treason," or "evincing express approbation" into a "Misdemeanor," "resisting an officer." And if the final decision rested with such a court, it would be exceeding easy to make way with any man whom the judge's private malignity or the public vengeance of his master, wished to smite and kill. But in the Anglo-Saxon people there is one institution, old, venerable, and well-beloved, which has stood for two thousand years, the great Fortress of Freedom. Thank God, Gentlemen, it still stands. Neither British Kings nor American Slave-drivers have yet brought it to the ground. Of this I must now say a word.

This is an invaluable protection against two classes of foes to the welfare of mankind.

In all the States of Anglo-Saxon origin there are two great popular institutions--Democratic Legislation and Democratic Administration of Law.

In the process of its historical development the first has come to the representative form of democratic legislation,--popular law-making by a body of sworn delegates met in an Assembly, local or federal, subject to a constitution, written or only traditional, which is the People's Power of Attorney, authorizing them to do certain matters and things pertinent to law-making. These are a Jury of general Law-makers.

In its process of historical development, the second has also come to a representative form, that of democratic application of law, popular law-applying, by a body of sworn delegates, that is a Court, subject to a constitution and laws, written or only traditional, which are the People's Power of Attorney authorizing them to do certain matters and things pertinent to law-applying. These are a Jury of special Law-appliers.

Neither of them as yet has reached its perfect and ultimate form; both are still in a state of transition. These two are the most valuable institutional safeguards against unorganized selfishness in the community,--against thieves, robbers, murderers, traitors, and the like; against the organized selfishness which gets into places of delegated power, and would misuse the Form of law so as to prevent the People from attaining the Purpose of law.

There is also a body of men intermediate between the two,--the Law-Explainers, the Judges. Speaking theoretically they are not ultimately either Law-makers or Law-appliers, yet practically, in their legitimate function, they certainly have much to do with both the making and applying of laws. For it is their business, not only to preside at all trials, and determine many subordinate questions of mere form to expedite the process, but also from the whole mass of laws, oral or written, statutes and customs, to select such particular laws as they think require special attention,--this is like the work of law-makers; and also, in their charges to the grand and petty Juries, to suggest the execution thereof in such cases as the times may bring,--this like the work of the law-appliers.

The good judge continually modifies the laws of his country to the advantage of mankind. He leaves bad statutes, which aim at or would promote injustice, to sleep till themselves become obsolete, or parries their insidious thrusts at humanity; he selects good statutes which enact natural Justice into positive law; and mixes his own fresh instincts of humanity with the traditional institutions of the age. All this his official function requires of him--for his oath to keep and administer the laws binds him to look to the Purpose of Law--which is the Eternal Justice of God,--as well as to each special statute. Besides, after the Jury declares a man guilty, the Judge has the power to fix the quantity and sometimes the quality of his punishment. And the discretion of a great noble man will advance humanity.

In this way a good Judge may do a great service to mankind, and correct the mistakes, or repel the injustice of the ultimate makers and appliers of law, and supply their defects. Thus in England those eminent Judges, Hale, Somers, Hobart, Holt, Camden, Mansfield, and Brougham, have done large service to mankind. Each had his personal and official faults, some of them great and glaring faults of both kinds, but each in his way helped enact natural Justice into positive law, and so to promote the only legitimate Purpose of human legislation, securing Natural Rights to all men. To such Judges mankind owes a quite considerable debt.

But in America the Judge has an additional function; he is to determine the Constitutionality of a law. For while the British King and Parliament claim to be legislatively omnipotent, supreme, the Ultimate human source of law, the Living Constitution of the realm, and therefore themselves the only Norm of law,--howsoever ill-founded the claim may be,--in America it is the People, not their elected servants, who are the Ultimate human source of law, the Supreme Legislative power. Accordingly the People have prepared a written Constitution, a Power of Attorney authorizing their servants to do certain matters and things relating to the government of the nation. This constitution is the human Norm of law for all the servants of the people. So in administering law the Judge is to ask, Is the statute constitutional? does it square with the Norm of law which the People have laid down; or have the legislative servants exceeded their Power of Attorney, and done matters and things which they were not empowered to do? In deciding this question, the Judge is to consider not merely the Provisional Means which the Constitution designates, but also the Ultimate Purpose thereof, the Justice and Liberty which, as its preamble declares, it expressly aims at, and which are also the ideal End of all sound legislation.

There is no country in the world where a great man has so noble a place and opportunity to serve mankind as in America.

But a wicked Judge, Gentlemen, may do great harm to mankind, as I have already most abundantly shown. For we have inherited a great mass of laws,--customary or statutory; the legislature repeals, modifies, or adds to them; the Judge is to expound them, and suggest their application to each special case. The Jury is to apply or refuse to apply the Judge's "law." In all old countries, some of these laws have come from a barbarous, perhaps even from a savage period; some are the work of tyrants who wrought cruelly for their own advantage, not justly, or for the good of mankind; some have been made in haste and heat, the legislature intending to do an unjust thing. Now an unjust Judge has great power to select wicked statutes, customs, or decisions; and in no country has he more power for evil than in the federal courts of the United States. For as in England, when the King-power makes a wicked law, the Judge, who is himself made by that same power, may declare it just, and execute the heinous thing; so in America, when the Slave power enacts a wicked statute, contrary to the purpose of the constitution and to the natural justice of God, the Judge, who is the creature of that same power, may declare it constitutional and binding on all the People who made the constitution as their Power of Attorney. Thus all the value of the constitution to check despotism is destroyed, and the Fortress of Freedom is betrayed into the hands of the enemies of liberty!

But barbarous laws must not be applied in a civilized age; nor unjust laws enforced by righteous men. While left unrepealed, a fair and conscientious Jury will never do injustice, though a particular statute or custom demand it, and a wicked Judge insist upon the wrong; for they feel the moral instinct of human nature, and look not merely to the letter of a particular enactment, but also to the spirit and general purpose of law itself, which is justice between man and man. The wicked Judge, looking only to the power which raised him to his place, and may lift him higher still,--not to that other Hand which is over all,--or consulting his own meanness of nature, selects the wicked laws, and makes a wicked application thereof. Thus in America, under plea of serving the people, he can work most hideous wrong.

Commonly in America, as in England, for judges the Federal Government appoints lawyers who have done some party service, or are willing to execute the designs of the great ruling Power, the Slaveholders, regardless alike of the interests of the People and the protestations of the Conscience of Mankind. You know how Hardwicke and Thurlow got their office in England, how they filled it, and what additional recompense followed each added wickedness. Need I mention the name of Americans with a similar history? Gentlemen, I pass it by for the present.

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