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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.

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.

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 ,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.

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.

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.

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.

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.

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.

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.

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

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 re?nact 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.

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