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]
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!
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]
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.
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]