I say, not knowing what is to come upon me, I must take a pretty wide margin. In that view of the case, it will not be improper if I state what I understand to be the true position of Mr. Davis, with reference to the principles involved in this case.
May it please your Honor, we are not subjects of a monarchy, which has put laws upon us that we have no hand in making. I do not hesitate to say, here, that if the act of 1850 had been imposed upon us, a subject people, by a monarchy, we should have rebelled as one man. I do not hesitate to say that if this law had been imposed upon us as a province, by a mother country, without our participation in the act, we should have rebelled as one man.
But we are a republic. We make our own laws. We choose our own lawgivers. We obey the laws we make, and we make the laws we obey. This law was constitutionally passed, though not constitutional, we think, in its provisions. It is the law until repealed or judicially abrogated.
Who passed this law? It was passed by the vote of the representative of our own city, whom we sent there by our own votes. It was advocated by our own Senator. It was passed by the aid of northern votes. Where is the remedy? It strikes me that the statement of the case shows where the remedy is. It is in the hands of the people. It is not in standing behind and urging on poor men to put themselves in the cannon's mouth. It is political courage that is wanted. Courage shown in speech, through the pen, and through the ballot-box.
But be it known that all I have said is on the idea that this is a repealable law. If we are to be told that this is a part of the organic law, sunk down deep into national compact, and never to be repealed,—then neither you nor I can answer for the consequences. But now we can say that it is nothing but an act, that may be repealed tomorrow. Take from us that great argument, and what can the defendant and myself do? What can the defendant say to discourage colored men from the use of force? You take from him his great means of influence. I never have been one of those, and I think the defendant has never been one of those, who would throw out all their strength in denunciations against Southern men born to their institution of slavery, and pass over those Northern men who volunteer to bring this state of things upon us.
But as a citizen, within constitutional limits, addressing his fellow-citizens at Faneuil Hall, (where I think we have still a right to go,) discouraging his fellow-citizens from violence, writing in the newspapers and arguing in the courts of law to the same purpose, saying to the poor trembling negro, I will give you a habeas corpus! I will give you a writ of personal replevin! I will aid in your defence! There is no need of violence! That is the position of the defendant. If he held any other position, if the defendant had made up his mind that here was a case for revolution, that here was a case for civil war and bloodshed—if I know anything of the spirit of the defendant, he would have exhibited himself in a far different manner. He would have resigned his position as a counsellor of this court, with all its profits and honors; he would put himself at the head instead of urging on from behind a class of ignorant, excited men, against the execution of the laws.
For he knows perfectly well—an educated man as he is, who has studied his logic and metaphysics, and who is not unfamiliar with the principles of the social system—that an intentional, forcible resistance to law is, in its nature, revolution. And I take it, no citizen has the right forcibly to violate the law, unless he is prepared for revolution. I know that these nice metaphysic rays, as Burke says, piercing into the dense medium of common life, are refracted and distorted from their course. But an educated man, with a disciplined mind, knows that he has no right to encourage others to forcible resistance, unless he is ready to take the risks of bringing upon the community all the consequences of civil war. We talk about a higher law on the subject of resistance to the law. And there is a higher law. But what is it? It is the right to passive submission to penalties, or, it is the active ultimate right of revolution. It is the right our fathers took to themselves, as an ultimate remedy for unsupportable evils. It means, war and bloodshed. It is a case altogether out of law. I do not know a man educated to the law that takes any other ground.
I suppose your Honor did not misapprehend my last remark and that no one did. When I said resistance to the law, I did not mean to include resistance for the purpose of raising a constitutional issue. If an unconstitutional tax is levied, you refuse to pay it and raise the constitutional question. This right seems to be lost sight of. Persons seem to think we are to obey statutes and not the constitution. I understand that the duty to the constitution is above the duty to the statutes. And therefore I say, by resistance to the law, I mean combined, systematic, forcible resistance to the law for the purpose of overcoming all law, or a particular law in all cases; defying the government to arms, and not for the purpose of raising a constitutional issue. For this is within the power, nay, it is sometimes the duty of a citizen. I do not know a position in which a person does a greater good to his fellow citizens than when he does, as John Hampden did on the question of ship money, raise, by refusal to obey, the constitutional issue. And in doing this, he ought to have the approbation of the Courts and their ministers, and of every person true to the constitution and the laws.
At the same time that it is important to maintain all these principles, which are the principles of the defendant, I also think this is a season when we must be very careful that certain opposite doctrines are not carried too far. I think it is a time, this day, when it becomes a judicial tribunal to see to it, that this extraordinary combination of Executive power and patronage; this alarm and this anxiety at head quarters, does not lead to a violation of private rights and personal liberty. I think there is a pressure brought to bear against the free expression of popular opinion, against the exercise of private judgment—a pressure felt even in the courts of law, intimidating counsel, overawing witnesses, and making the defence of liberty a peril. There is the pressure of fear of political disfranchisement, of social ostracism, which weighs upon this community like a night-mare. We feel it everywhere. We know that we make sacrifices when we act in this cause. We feel that we suffer under it. And if this course is persevered in, I believe that if a man stands at that bar charged with being a fugitive slave, he will find it difficult to obtain counsel in this city of Boston, except from a small body of men peculiarly situated.
I think that two years ago no man could have stood before this bar, with perpetual servitude impending over him, but almost the entire bar would have come forward for his defence. No man would have dared to decline. But because of this pressure of political and mercantile interests, it is said that Henry Long found it difficult to obtain counsel in New York. His friends sent to Boston to obtain an eminent man here, willing to brave public feeling by acting as a counsellor in a case of slavery. I do believe that this danger is to be regarded. For there is, at times, as much servility in democracies as in monarchies. I was struck with the remark made by the Earl of Carlisle, in his late letter, that there is in the United States an absolute submission to the supposed popular opinion of the hour, greater than he ever knew in any other country in the world. This is something in which no American can take pride.