5. But, if satisfied on all which relates to this question of his being in the peace of the United States, you are next to inquire if Mr. Freeman, at the time of the obstruction was "Marshal of the United States," and "in the due and lawful discharge of his duties as such officer." There is no doubt that he was Marshal; but there may be a doubt that he was in the "lawful discharge of his duties as such officer." Omitting what I first said, (I. 1.) see what you must determine in order to make this clear.
(1.) Was Commissioner Loring, who issued the warrant to kidnap Mr. Burns, legally qualified to do that act. Gentlemen, there is no record of his appointment and qualification by the form of an oath. No evidence has been adduced to this point. Mr. Loring says he was duly appointed and qualified. There is no written line, no other word of mouth to prove it.
(2.) Admitting that Mr. Loring had the legal authority to command Mr. Freeman to steal Mr. Burns, it appears that stealing was done feloniously. The Marshal's guard seized him on the charge of Burglary—a false charge. You are to consider whether Mr. Freeman had legally taken possession of his victim.
(3.) If satisfied thus far, you are to inquire if he held him legally. It seems he was imprisoned in a public building of Massachusetts, which was by him used as a jail for the purpose of keeping a man claimed as a fugitive slave, contrary to the express words of a regular and constitutional statute of Massachusetts.
If you find that Mr. Freeman was not in the lawful discharge of his duties as Marshal, then the inquiry stops here, and you return a verdict of "not guilty."
But if you are convinced that an obstruction was made against a Marshal in the peace of the United States, and in the legal discharge of a legal, constitutional duty, then you settle the question of Fact against me, and proceed to the next point.
II. The Question of Law.
1. Is there a law of the United States punishing this deed of mine? The answer will depend partly on the kind of opposition or obstruction which I made. If you find (1.) that I obstructed him, while in the legal discharge of his legal duties, with physical force, violence, then there is a law, clear and unmistakable, forbidding and punishing that offence. But if you find (2.) that I obstructed him with only metaphysical force,—"words," "thoughts," "feelings," "wishes," "consent," "assent," "evincing an express liking," "or approbation," then it may be doubtful to you whether the law of 1790, or any other law of the United States forbids that.
2. But if you find there is such a law, punishing such metaphysical resistance—and the court by the charge to the Grand-Jury seems plainly of that opinion, which is fortified by the authority of Chief Justice Kelyng and Judge Chase, two impeached judges—then you will consider whether that law is constitutional. And here you will look at two things, (1.) The Purpose of the Constitution already set forth; and (2.) at the Means provided for by that Power of Attorney. For if the agents of the People—legislative, judiciary, or executive—have exceeded their delegated authority, then their act is invalid and binding on no man. If I, in writing, authorize my special agent to sell my Ink-stand for a dollar, I am bound by his act in obedience thereto. But if on that warrant he sells my Writing-Desk for that sum, I am not bound by his unauthorized act. Now I think there will be grave doubts, whether any law, which with fine and imprisonment punishes such words, thoughts, feelings, consent, assent, "express liking," approbation, is warranted by the People's Power of Attorney to their agents. The opinion of the Court on such a matter, Gentlemen, I think is worth as much as Bacon's opinion in favor of the rack; or Jones's opinion that Charles I. had the right to imprison members of Parliament for words spoken in the Commons' Debate; or the opinion of the ten judges that Ship-money was lawful; or of the two chief justices that the Seven Bishops' Petition to James II. was high treason; or Thurlow's opinion that a jury is the natural enemy of the King. Gentlemen, I think it is worth nothing at all. But if you think otherwise, you have still to ask:—
3. Is this law just? That is does it coincide with the Law of God, the Constitution of the Universe? There your own conscience must decide. Mr. Curtis has told you there is no Morality but Legality, no standard of Right and Wrong but the Statute, your only light comes from this printed page, "Statutes of the United States," and through these sheepskin covers. Gentlemen, if your conscience is also bound in sheepskin you will think as these Honorable Judges, and recognize only Judge Curtis's "Standard of Morality,"—no Higher Law. But even if you thus dispose of the Question of Law, there will yet remain the last part of your function.