DEFENCE. (continued 3)

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.

Besides, the Judges are lawyers, with the technical training of lawyers, with the disposition of character which comes from their special training and profession, and which marks the manners, the language and looks of a lawyer. They have the excellence of the lawyer, and also his defects. Commonly they are learned in their profession, acute and sharp, circumspect, cautious, skilful in making nice technical distinctions, and strongly disposed to adhere to historical precedents on the side of arbitrary power, rather than to obey the instinctive promptings of the moral sense in their own consciousness. Nay, it seems sometimes as if the moral sense became extinct, and the legal letter took the place of the spirit of Justice which gives life to the People. So they look to the special statute, its technical expositions and applications, but not to Justice, the ultimate Purpose of human law; they preserve the means and miss the end, put up the bars in the nicest fashion, and let the cattle perish in their pen. Like the nurse in the fable, they pour out the baby, and carefully cherish the wooden bath-tub! The Letter of the statute is the Idol of the Judicial Den, whereunto the worshipper offers sacrifices of human blood. The late Chief Justice Parker, one of the most humane and estimable men, told the Jury they had nothing to do with the harshness of the statute! but must execute a law, however cruel and unjust, because somebody had made it a law! How often Juries refuse to obey the statute and by its means to do a manifest injustice; but how rarely does a Judge turn off from the wickedness of the statute to do Justice, the great Purpose of human law and human life! Gentlemen, I once knew a democratic judge—a man with a noble mind, and a woman's nicer sense of right—who told the Jury, "Such is the law, such the decisions; such would be its application to this particular case. But it is unjust;—it would do a manifest and outrageous wrong if thus applied. You as Jurors are to do Justice by the law, not injustice. You will bring in a verdict according to your conscience." They did so. Gentlemen, I should not dare tell you that Judge's name. It would greatly injure his reputation. God knows it—for there is a Higher Law.

When the New York Convention assembled in 1846 to revise the constitution of that State, some powerful men therein felt the evil of having the Court of last Appeal consist wholly of lawyers. Mr. Ruggles thought the judges who reëxamine the decisions and pronounce the final judgment in disputed cases, and determine the constitutionality of laws, should be men who are "brought into direct contact with the people and their business." He wished that of the eight judges of this appellate Court, four should be Justices of the Supreme Court, and four more should be elected by the people on a general ballot, thus securing a popular element in that highest Court. By this popular element, representing the instinctive Justice of Humanity, he hoped to correct that evil tendency of professional men which leads them away "from the just conclusions of natural reason into the track of technical rules inapplicable to the circumstances of the case, and at variance with the nature and principles of our social and political institutions."[109] "Such judges," said another lawyer, "would retain more of the great general principles of moral justice, ... the impulses of natural equity, such as ... would knock off the rough corners of the common law and loosen the fetters of artificial and technical equity."[110]

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.[111] 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.

Still further, these judges thus appointed become familiar with fraud, violence, cruelty, selfishness,—refined or brutal,—which comes before them; they study the technicalities of the statutes, balance the scruples of advocates; they lose their fresh intuitions of justice, becoming more and more legal, less and less human, less natural and more technical; their eye is microscopic in its niceness of discrimination, microscopic also in its narrowness of range. They forget the universality of justice,—the End which laws should aim at; they direct their lynx-eyed attention to the speciality of the statutes which is only the Means, of no value save as conducing to that end. Their understanding is sharp as a mole's eye for the minute distinctions of the technicalities of their craft; but, as short-sighted as the mole, they cannot look at justice. So they come to acknowledge no obligation but the legal, and know no law except what is written in Black Letter on parchment, printed in statute-books, reported in decisions; the Law written by God on the soul of man they know not, only the statute and decision bound in pale sheepskin. In the logic of legal deduction—technical inference—they forget the intuition of conscience: not What is right? but What is law? is the question, and they pay the same deference to a wicked statute as a just one. So the true Mussulman values the absurdities of the Koran as much as its noblest wisdom and tenderest humanity.

Such a man so appointed, so disciplined, will administer the law fairly enough in civil cases between party and party, where he has no special interest to give him a bias—for he cares not whether John Doe or Richard Roe gain the parcel of ground in litigation before him. But in criminal cases he leans to severity, not mercy; he suspects the People; he reverences the government. In political trials he never forgets the hand that feeds him,—Charles Stuart, George Guelph, or the Slave Power of America.

These things being so, in such trials you see the exceeding value of the jury, who are not Office-holders, under obligation to the hand that feeds them; not Office-seekers, willing to prostitute their faculties to the service of some overmastering lust; not lawyers wonted to nice technicalities; not members of a class, with its special discipline and peculiar prejudices; but men with their moral instincts normally active, and unsophisticated humanity in their hearts. Hence the great value of the jury in criminal trials.

Gentlemen, you are the jurors in this case, to decide between me and the government. Between the government and me! no, Gentlemen, between the Fugitive Slave Bill and Humanity. You know the Function of the court—the manner of the Judges' appointment—the services they are expected to render in cases like this, the services they have already rendered.

Let me speak of the Function of the Jury. To do that, I must say a few words of its Historical Development. I must make it very brief and sketchy. Here I shall point out six several steps in the successive development of popular Law-making and Law-applying.

1. In the barbarous periods of the Teutonic Family,[112] it seems the "whole People" came together at certain regular seasons to transact the business of the nation. There was also a meeting of the inhabitants of each district or neighborhood at stated times,—a "regular meeting;" and sometimes a special meeting to provide for some emergency—a "called meeting." If one man had wronged another the matter was inquired into at those popular meetings. One man presided—chosen for the occasion. In the early age it appears he was a priest, afterwards a noble, or some distinguished man, selected on the spot. The whole people investigated the matter, made the law—often an ex post facto law,—applied it to the special case, and on the spot administered the punishment—if corporeal, or decreed the recompense—if pecuniary. The majority carried the day. Thus at first the Body of People present on the occasion were the law-makers, the law-appliers, and law-executors. Each law was special—designed for the particular case in hand, retrospective for vengeance more than prospective for future welfare.

2. Then in process of time, there came to be a body of laws—fixed and understood by the People. Partly, these came from the customs of the People, and represented past life already lived; but partly, also, from the decrees of the recognized authorities—theocratic, monarchic, aristocratic, democratic—representing the desire for a better life, a rule of conduct for the future. Then at their meetings, to punish an offender the people did not always make a new law, they simply used what they found already made. They inquired into the fact, the deed done, the law, and applied the general law to the special fact, made their decree and executed it. Thus extemporaneous Making of law for the particular case, gradually passed away, and was succeeded by the extemporaneous Declaration of the law previously made, and its Application to the matter in hand.

3. By and by it was found inconvenient for a multitude to assemble and make the laws, so a body of select men took a more special charge of that function. Sometimes a chief, or king, usurped this for himself; or men were chosen by the people, and took an oath for the faithful discharge of their trust. Thus came popular law-making by sworn delegates, representatives of the people, who had a certain special power of attorney, authorizing them to make laws. These might be Priests—as at the beginning; or Nobles of priestly stock, as at the next stage; or Military Chiefs—as in all times of violence; or powerful Private men,—summoned from the nation, of their own accord undertaking the task, or chosen by the various neighborhoods,—the whole process seems to have been irregular and uncertain, as indeed it must be amongst rude people.

So at that time there were two sources of law-making.

(1.) The unorganized People—the primary source, whose unconscious life flows in certain channels and establishes certain customs, rules of conduct, obeyed before they are decreed, without any formal enactment. These were laws de facto.

(2.) The organized Delegates—priestly, kingly, nobilitary, or warlike—the secondary source. These made statute laws. As this was a self-conscious and organized body, having an object distinctly set before its mind and devising means for its purposes, it easily appropriated to itself the chief part of the business of law-making. Statute laws became more and more numerous and important; they were the principal—the customs were only subsidiary, laws de Jure, enacted before they are obeyed by the People. Still new customs continued to flow from the primitive source of legislation, the People, and of course took new forms to suit the conditions of national life.

4. Still the people came together to apply the laws—customary or enacted,—to the special cases which occurred. There were fixed periods when they assembled without notice given,—"regular law-days;" and if an emergency occurred, they were summoned on "extraordinary law-days." Here wrongs between party and party, and offences against the public, were set right by the "Country," the "Body of the county," that is, by the bulk of the population. The majority carried the day.

5. At length it was found inconvenient for so large a body to investigate each particular case, or to determine what cases should be presented for investigation.

(1.) So this preliminary examination was delegated to a smaller body of men, sworn to discharge the trust faithfully, who made inquiry as to offences committed, and reported the criminals for trial to the full meeting, the actual "Body of the country." Here, then, is the first organized and sworn "Jury;" "the grand inquest;"—here is popular Indictment by delegates.

(2.) Then it was found inconvenient for a large body—the whole country—to investigate the cases presented. Men were busy with their own work, and did not wish to appear and consume their time. So a smaller body of men was summoned to attend to any special case which was presented by the Grand Inquest. These also were sworn to do their duty. They were to try the men indicted. Here is Trial by sworn delegates, who represent the Body of the People. They were still called the "Country," as any spot of the Atlantic is the "Ocean." Here is the "Trial by Jury." They must be taken from the neighborhood of the parties concerned—for at this stage the jurors were also the witnesses, and other sworn witnesses were not then known. All the Jurors must concur in the vote of condemnation before the magistrate could hurt a hair of the accused's head.

Still after the people had delegated their law-making to one body of sworn representatives, and the twofold function of law-applying, by Indictment and Trial, to other sworn representatives, there was yet a great concourse of people attending the court on the "law-days;" especially when important matters came up for adjudication; then the crowd of people took sides with Plaintiff or Defendant; with the authorities which accused, or with the man on trial, as the case might be. Sometimes, when the Jury acquitted, the people tore the suspected man to pieces; sometimes when the Jury condemned, they showed their indignation—nay, rescued the prisoner. For the old tradition of actual trial by the "Body of the Country" still prevailed.

6. At length the Jurors are no longer the witnesses in the case. Others testify before them, and on the evidence which is offered, the Grand-Jury indict or not, and the Trial Jury acquit or condemn. Then the Jurors are no longer taken from the immediate neighborhood of the party on trial, only from his district or county. But sworn witnesses from the neighborhood, depose to the facts. There is no longer a great concourse of people in the open air, but the trial is carried on in a small court house, yet with open doors, in the face of the people, coram populo—public opinion still influences the Jury.

As most of the Jurors were unlearned men, not accustomed to intricate questions, it became necessary for the presiding judge, a man of nicer culture, to prepare rules of evidence which should prevent the matter from becoming too complicated for the rustic judgment. Thence came the curious and strange "rules of evidence" which prevail in all countries where trial by Jury is established, but are unknown in lands where the trial is conducted solely by experts, educated men. But as the mass of the people, as in America, become well informed, the old rules appear ridiculous, and will perish.

The number of sworn judges varies in different tribes of the Teutonic family, but as twelve has long been a sacred number with the Anglo-Saxons, that was gradually fixed for the Jury. Twelve consenting voices are indispensable for the indictment or the condemnation.

Such is the form of the Jury as we find it at this day. The other officers have also undergone a change. So, Gentlemen, let me give you a brief sketch of the Historical Formation of the Function of the Judge in nations of the same ethnological origin. Here I shall mention four steps.

1. At the meetings of the people to make, apply, and execute the law, some one must preside to keep order, put the question, and declare the vote. He was the Moderator of the meeting. At first it would seem that some important man, a priest, or a noble, or some other wise, distinguished, or popular man, performed that function. The business over, he dropped into his private place again. A new one was chosen at each meeting.

2. If the former moderator had shown skill and aptness, he was chosen the next time; again and again; at length it was a matter of course that he should preside. He studied the matter, and became "expert in all the manners and customs of his nation." This happens in most of the New England towns, where the same man is Moderator at the town-meetings for many years in succession. Men love to walk in the path they have once trodden, even if not the shortest way to their end.

3. When the nation is organized more artificially and the laws chiefly proceed from the secondary source, the government,—elective or usurpatory—a judge is appointed by the central authority to visit the districts (counties) and assist at the administration of justice. As the law is now made by the distant delegates, the judge they send down declares and explains it to the people, for they have not made it as before directly, nor found it ready-made, an old inherited custom, but only receive it as the authorities send it down from the Capitol. The law is written—the officer can read while they have no copy of the law, or could not read it had they the book. Hence the necessity of a judge learned in the law. Still the people are to apply the written law or apply it not.

Besides, the old customs remain, the unwritten laws of the people, which the judge does not understand so well as they. He represents the written law, the assembly the unwritten custom or tradition. The judge is appointed that he may please the central power; the people are only to satisfy such moral convictions as they have. There is often a conflict between the statute and the custom, a conflict of laws; and still more between the judge and the jury—a conflict in respect to the application of the law.

4. Then comes the critical period of the Trial by Jury. For the deputed judge seeks to enlarge his jurisdiction, to enforce his law, often against the customs and the consciences of the People, the jury, who only seek to enlarge Justice. He looks technically at the statute, the provisional Means of law, not at Justice the ultimate Purpose of law. To the "Country," the "Body of the People," or to the jury of inquest and of trial, he assumes not to suggest the law and its application, but absolutely to dictate it to them. He claims the exclusive right to decide on the Law and its Application; the jury is only to determine the Fact—whether the accused did the deed charged or not.

If the judge succeeds in this battle, then tyranny advances step by step; the jury is weakened; its original function is curtailed; certain classes of cases are taken from its jurisdiction; it becomes only the tool of the government, and finally is thrown aside. Popular law-making is gone; popular law-applying is also gone; local self-government disappears and one homogeneous centralized tyranny takes the place of the manifold Freedom of the people. So the trial by jury faded out of all the South-Teutonic people, and even from many regions of the German and Scandinavian North. But the Anglo-Saxon, mixing his blood with Danes and Normans, his fierce kinsfolk of the same family, has kept and improved this ancient institution. When King or Parliament made wicked laws, or appointed corrupt and cruel men for judges, the People have held this old ancestral shield between the tyrant and his victim. Often cloven through or thrust aside, the Saxon Briton never abandons this. The Puritan swam the Atlantic with this on his arm—and now all the Anglo-Saxon tribe reverences this defence as the Romans their twelve aoncilia, the mythic shield which "fell from Heaven."[113]

After so much historic matter, Gentlemen, it is now easy to see what is—

The Function of the Jury at this time. Here I make three points.

I. They are to decide the Question of Fact, the matter charged, and determine whether the accused did the deed alleged to be done. That is the first step—to determine the Fact.

II. They are to decide the Question of Law, the statute or custom supposed to apply to the Deed done, and determine whether there is such a statute or custom, and whether it denounces such a Deed as a Crime assigning thereto a punishment. That is the second step—to determine the Law.

III. They are to decide the Question of the Application of the Law to the Fact, and to determine whether that special statute shall be applied to the particular person who did the deed charged against him. That is the third step—to determine the Application of the Law.

Gentlemen, I shall speak a few words on each of these points, treating the matter in the most general way. By and by I shall apply these general doctrines to this special case.

I. The jury is to decide the Question of Fact; to answer, Did the accused do the deed alleged, at the time and place alleged, with the alleged purpose and producing the alleged result? The answer will be controlled by the Evidence of sworn witnesses, who depose under a special oath to "tell the truth, the whole truth, and nothing but the truth." Their Evidence is the Testimony as to the Fact,—the sole testimony; the jury is the ultimate arbiter to decide on the credibility of the evidence, part by part, and its value as a whole.

Sometimes it is an easy matter to answer this Question of Fact; sometimes exceedingly difficult. If there be doubts they must weigh for the accused, who is held innocent until proven guilty.

With us the theory that the jury is the exclusive judge of the Question of Fact is admitted on all sides. But in England it has often happened that the judge instructs the jury to "find the facts" so and so; that is—he undertakes to decide the Question of Fact. In libel cases it is very common for New England judges to undertake to determine what constitutes a libel, and to decide on the intentions of the accused; that is to decide the most important part of the complex and manifold Question of Fact. For it is as much a question of fact to determine what constitutes a libel, as what constitutes theft, the animus libellandi as much as the animus furandi. Sometimes juries have been found so lost to all sense of manhood, or so ignorant of their duties, as to submit to this judicial insolence and usurpation.

If the Jury decide the Question of Fact in favor of the accused, their inquiry ceases at that step, they return their verdict, "not guilty;" and the affair is ended. But if they find he did the deed as charged, then comes the next function of the Jury.

II. The Jury are to decide the Question of Law. Is there a statute or custom denouncing a penalty on that special deed? is the statute constitutional? To determine this matter, there are three sources of evidence external to their own knowledge.

1. The Testimony of the Government's Attorney. The Government itself is his client, and he gives such a statement of the law as suits the special purposes of the rulers and his own private and particular interest, selects such statutes, customs, and decisions, as will serve this purpose, and declares, Such is the law. Nay, he makes inferences from the law, and thereby infers new customs, and constructs new statutes, invents new crimes. He treats the law as freely as he treats the facts—making the most that is possible against the party accused. You have seen already what tricks Government attorneys have played, how they pervert and twist the law—making it assume shapes never designed by its original makers. He gives his opinion as to the law, as he gave an opinion as to the fact. This is not necessarily his personal and actual, but only his official and assumed opinion—what he wishes the Jury to think is law in this particular case.

2. The Testimony of the Defendant's Attorney. The accused is his client. He is to do all he can to represent the law as favorable as possible to the man on trial. He gives an opinion of the law, not his personal and actual, but his official and assumed opinion—what he wishes the Jury to think is law in this particular case.

3. The Testimony of the Judge on the Bench. But in the English courts, and the Federal courts of the United States, he is commonly no more than a government attorney in disguise; I speak only of the general rule, not the exceptions to it. He has received his office as the reward for party services—was made a judge because he was one-sided as a lawyer. In all criminal cases he is expected to twist the law to the advantage of the hand that feeds him. Especially is this so in all Political trials—that is, prosecutions for opposition to the party which the judge represents. The judge may be impartial, or partial, just or unjust, ignorant or learned. He gives an opinion of the law,—not his personal and actual, but his official and assumed opinion—what he wishes the jury to think is law in this particular case. For the court also is a stage, and the judges, as well as the attorneys, may be players,

"And one man in his time play many parts."

Of these three classes of witnesses, no one gives evidence under special oath to tell the law, the whole law, and nothing but the law—or if it be so understood, then all these men are sometimes most grossly and notoriously perjured; but each allows himself large latitude in declaring the law. The examples I have already cited, show that the judge often takes quite as wide a range as the attorney-general, or the prisoner's counsel.

As the jury hears the manifold evidence as to the facts, and then makes up its mind thereon and decides the Question of Fact, often rejecting the opinion of various witnesses, as ignorant, partial, prejudiced, or plainly false and forsworn; so will the jury hear the manifold and often discrepant evidence as to the law, and then make up their mind thereon and decide the Question of Law, often rejecting the opinion of various witnesses thereupon ignorant, partial, prejudiced, or plainly false and forsworn.

In regard to the Fact, the jury is limited to the evidence adduced in court. What any special juror knows from any other source is not relevant there to procure conviction. But in regard to the Law there is no such restriction; for if the jury know the law better than these three classes of witnesses for it in court, then the jury are to follow their better knowledge. At any rate, the jury are to make up their minds on this question of Law, and for themselves determine what the special Law is.

Every man is to be held innocent until proved guilty—until the special Deed charged is proved against him, and until that special deed is proved a Crime. The jury is not to take the government attorney's opinion of the Fact, nor the prisoner's counsel's opinion of the Fact, nor yet the judge's opinion thereon; but to form their own opinion, from the evidence offered to make up their own judgment as to the Fact. So likewise they are not to take the government attorney's opinion of the Law, or the prisoner's counsel's opinion of the Law, nor yet the judge's opinion thereon; but from all the evidence offered, not otherwise known to them, to make up their own judgment as to the Law. After they have done so—if they decide the Law in favor of the accused, the process stops there. The man goes free; for it does not appear that his deed is unlawful. But if the jury find the Law against the deed, they then proceed to their third function.

III. The jury is to decide the Question of the Application of the Law to the Fact. Here is the question: "Ought the men who have done this deed against the form of Law to be punished thereby?" The government attorney and the judge are of the opinion that the law should be thus applied to this case, but they cannot lay their finger on him until the jury, specially sworn "well and truly to try and true deliverance make," have unanimously come to that opinion, and say, "Take him and apply the law to him."

The Deed may be clear and the Statute clear, while the Application thereof to the man who did the deed does not follow, and ought not to follow. For

1. It is not designed that the full rigor of every statute shall be applied to each deed done against the letter thereof. The statute is a great sleeping Lion, not to be roused up when everybody passes that way. This you see from daily practice of the courts. It remains in the Discretion of the Attorney to determine what offences he will present to the Grand-Jury,—he passes by many, and selects such as he thinks ought to be presented. It remains in the Discretion of the Grand-Jury to determine whom they will indict, for sometimes when the Fact and Law are clear enough to them, they yet find "no bill" or ignore the matter. And after the man is indicted, it still remains in the Discretion of the Attorney to determine whether he will prosecute the accused, or pass him by. Indeed I am told that the very Grand-Jury who found the bills which have brought you and me face to face, hesitated to indict a certain person on account of some circumstances which rendered his unlawful act less deserving of the legal punishment: the Attorney told them he thought they had better find a bill, and he would enter a nolle prosequi in court,—plainly admitting that while the Law and the Fact were both clear, that the Grand-Jury were to determine in their Discretion whether they would apply the law to that man, whether they would indict or not; and the Attorney whether he would prosecute or forbear. It remains equally in the Discretion of the Trial Jury to determine whether the man who did the unlawful deed shall be punished—whether the spirit of that statute and the Purpose of Law requires the punishment which it allows.

2. Besides, in deciding this question—the jurors are not only to consider the one particular statute brought against the prisoner, but the whole Complex of Customs, Statutes, and Decisions, making up the Body of Law, and see if that requires the application of this special statute to this particular deed. Here are two things to be considered.

(1.) The general Purpose of the whole Body of Laws, the Object aimed at; and

(2.) The Means for attaining the end. Now the Purpose of Law being the main thing, and the statute only subsidiary to that purpose, the question comes—"Shall we best achieve that Purpose by thus applying the statute, or by not applying it?" This rests with the Jury in their Discretion to determine.

3. Still more, the Jury have consciences of their own, which they must be faithful to, which no official position can ever morally oblige them to violate. So they are to inquire, "Is it right in the sight of God, in the light of our consciences, to apply this special statute to this particular case and thus punish this man for that unlawful deed?" Then they are to ask, also, "Was the deed naturally wrong; done from a wrong motive, for a wrong purpose?" If not, then be the statute and the whole complex of laws what they may, it can never be right for a jury to punish a man for doing a right deed, however unlawful that deed may be. No oath can ever make it right for a man to do what is wrong, or what he thinks wrong—to punish a man for a just deed!

But if the twelve men think that the Law ought not to be applied in this case—they find "not guilty," and he goes free; if otherwise, "guilty," and he is delivered over to the judges for sentence and its consequences, and the judge passes such sentence as the Law and his Discretion point out.

The judge commonly, and especially in political trials, undertakes to decide the two last Questions himself, determining the Law and the Application thereof, and that by his Discretion. He wishes to leave nothing to the Discretion of the jury, who thus have only the single function of deciding the Question of Fact, which is not a Matter of Discretion—that is, of moral judgment,—but only a logical deduction from evidence, as the testimony compels. He would have no moral element enter into their verdict. The judge asks the jury to give him a deed of the ground on which he will erect such a building as suits his purpose, and then calls the whole thing the work of the jury, who only granted the land!

But this assumption of the judges ultimately and exclusively to decide the question of Law and its Application, is a tyrannous usurpation.

(1.) It is contrary to the fundamental Idea of the Institution of Trial by jury.

(2.) It leads to monstrous tyranny by putting the Property, Liberty, and Life of every man at the mercy of the government officers, who determine the Law and its Application, leaving for the jury only the bare question of Fact, which the judge can so manage in many cases as to ruin most virtuous and deserving men.

(3.) Not only in ancient times did the jury decide the three questions of Fact, of Law, and of its special Application, but in cases of great magnitude they continue to do so now, in both America and England, and sometimes in direct contradiction to the commands of the judges.

Gentlemen of the Jury, if you perform this threefold function, then you see the exceeding value of this mode of trial,

1. For the punishment of wrong deeds done against the law, done by the unorganized selfishness of thieves, housebreakers, murderers, and other workers of unrighteousness;

2. And also for the prevention of wrong deeds attempted in the name of law, by the organized selfishness of the makers and officers thereof.

For in each special case brought to trial, the jury are judges of the Law and of its Application. They cannot make a law—statute or custom—nor repeal one; but in each particular case they must demand or forbid its execution. These Tribunes of the Saxon People have no general veto on law-making, and can efface no letter from the statute-book, but have a special and imperative veto on each case for the Application of the law.

Justice, the point common to the interests of all men, yes, the point common to God and our Conscience, is the Aim and Purpose of Law in general; if it be not that the law is so far unnatural, immoral, and of no obligation on the conscience of any man. The special Statute, Custom, or Decision, is a provisional Means to that end; if just, a moral means and adequate in kind; if unjust, an immoral means, inadequate in kind, and fit only to defeat the attainment of that Justice which is the Purpose of all Law. Accordingly, if by an accident, a special statute is so made that its application in a particular case would do injustice and so defeat the Design and Purpose of Law itself, then the function of the jury under their oath requires them to preserve the End of law by refusing to apply the provisional statute to an unjust use. And if by design a statute is made in order to do injustice to any man—as it has very often happened in England as well as America,—then the jury will accomplish their function by refusing to apply that statute to any particular case. So will they fulfil their official oath, and conserve the great ultimate Purpose of Law itself.

Gentlemen, you will ask me where shall the jury find the Rule of Right, and how know what is just, what not? In your own Conscience, Gentlemen; not in the conscience of the Attorney for the Plaintiff-Government, or the accused Defendant; not in the conscience of the community; still less in the technical "opinion" of the lawyers, or the ambition, the venality, the personal or purchased rage of the court. Of course you will get such help as you can find from judges, attorneys, and the public itself, but then decide as you must decide—each man in the light of his own conscience, under the terrible and beautiful eyes of God. How does the juror judge of the Credibility of Evidence? By the "opinion" of the lawyers on either side? by the judge's "opinion," or that of the community? No one would dare determine thus. He decides personally by his own common sense, not vicariously by another's opinion. And as you decide the Matter of Fact by your own Discretion of Intellect, so will you decide the Matter of Right by your own Discretion of Conscience.

Gentlemen, when the jury do their official duty it becomes impossible to execute a statute, or custom, or to enforce a decision which the jury—"the country"—think unjust and not fit to be applied.

But if the judge usurps these two functions of the jury, and himself decides the Question of Law and its Application, you see what follows—consequences the most ghastly, injustice in the name of Law, and with the means of Law! Yes, tyranny spins and weaves with the machinery of Freedom, and a Nessus-shirt of bondage is fixed on the tortured body of the People. The power of the judge will be especially dangerous in times of political excitement, and in political trials.

Gentlemen, this matter is so important, and the danger now so imminent that you will pardon me a few words while I set forth the mode by which this wickedness goes to work, and what results it brings to pass. Follow me in some details.

I. As to the judges dealing with the Grand-Jury.

Here let me take the examples from the circuit court of the United States in a supposed case where a man is to be tried for violating the fugitive slave bill. You will see this is a case which may actually happen.

1. The judge challenges the whole body summoned as grand-jurors and catechizes them after this fashion.

(1.) "Have you formed an opinion that the law of the United States, known as the Fugitive Slave Law of 1850, is Unconstitutional, so that you cannot indict a person under it for that reason, although the court holds the statute to be Constitutional?"

This is riddling No. 1. Such as think the fugitive slave bill unconstitutional are at once set aside. The judge proceeds to ask such as have no doubt that it is constitutional,

(2.) "Do you hold any opinions on the subject of Slavery in general, or of the Fugitive Slave Law in special, which would induce you to refuse to indict a man presented to you for helping his brother to freedom?"

This is riddling No. 2; other "good men and true" are rejected, but some are found "faithful" to the purposes of the court; and the judge puts his next question,

(3.) "Will you accept for Law whatever the court declares such?"

This is riddling No. 3. Still the judge finds three-and-twenty men small enough to pass through all these sieves. They are to be "the jury." All the men who deny the constitutionality of the wicked statute; all who have such reverence for the unalienable Rights of man and for the Natural Law of God that they would not prevent a Christian from aiding his brother to escape from bondage; all who have such respect for their own manhood that they will not swear to take a judge's word for law before they hear it—are shut out from the "grand inquest;" they are no part of the "Country," or the "Body of the county," are not "good men and true."

Gentlemen of the Jury, consider the absurdity of swearing to take for law what another man will declare to be law, and before you hear it! Suppose the judge should be drunk and declare the fugitive slave bill in perfect harmony with the Sermon on the Mount, those noble words "Whatsoever ye would that men should do unto you, do ye even so unto them,"—are jurors to believe him? What if the judge should be sober, and declare it a "misdemeanor" to call the fugitive slave bill a wicked and hateful statute, and all who thus offended should be put in jail for twelve months! Are honest men to take such talk for American law?

The jurors then take this oath which the clerk reads them:—

"You, as a member of this Inquest for the District of Massachusetts, shall diligently inquire and true presentment make of all such matters and things as shall be given you in charge; the counsel of the United States, your fellows', and your own you shall keep secret; you shall present no man for envy, hatred, or revenge; neither shall you leave any man unpresented—for love, fear, favor, affection, or hope of reward; but you shall present things truly as they come to your knowledge, according to the best of your understanding. So help you God!"[114]

Then the judge appoints the most pliant member of the jury as "foreman"—selecting, if possible to find him, some postmaster or other official of the government, or some man marked for his injustice or venality, who may have the desirable influence with his fellows.

2. The next thing is to moisten this material thus trebly sifted, and mould it into such vessels of tyranny as he can fill with his private or judicial wrath and then empty on the heads of his personal foes or such as thwart his ambitious despotism or the purposes of his government. So he delivers his Charge to the Grand-Jury.

By way of introduction, he tells them—

(1.) That they are not the Makers of Law. Legislation is the function of Congress and the President; even the Court, the "Supreme Court of the United States" itself cannot make a law, or repeal one!

(2.) That they are not the Declarers, or Judges of Law. To know and set forth the Law is the function of the Court. It is true every man in his personal capacity, as private citizen, is supposed to know the law, and if he violates it, of his own presumption, or by the persuasion of some others who falsely tell him about the law, he must be punished; for "ignorantia nemini excusat," ignorance excuseth none; the private advice of the full bench of judges would be held no excuse. But in their official capacity of jurors they are supposed to know nothing of the Law whatsoever.

It seems taken for granted that though one of the Jurors may be an old judge of the Supreme Court of the United States, and have sat on the bench for twenty years; nay, though he may be also an old legislator of twenty years' standing, and as legislator have made the very statute in question, and also as judge subsequently have explained and declared it, yet the moment he takes the oath as Grand-Juror, all this knowledge is "gone from him" as completely Nebuchadnezzar's dream. The court is the assembly of magicians, astrologers, sorcerers, and Chaldeans to restore it. Congress might pass a law compelling ex-judges, ex-senators, and ex-representatives—who are so numerous nowadays, and continually increasing and likely to multiply yet more,—to serve as grand-jurors; soon as they take their oath, they are in law held and accounted to be utterly ignorant of law, and bound to accept as law whatsoever the court declares such. The acting judge may be young, blind, ignorant, ambitious, drunk with brandy or rage, he may have a personal interest in promoting the law, and may notoriously twist it so as to gratify his peculiar or familistic spleen, still the jury to accept the court's opinion for the nation's law. Any political ignoramus, if hoisted to the "bench," has judicial authority to declare the law,—it is absolute. If he errs, "he is responsible to the proper authorities—he may be removed by impeachment;" but the jury must not question the infallibility of his opinion. For though the grand-jury is "the country," the judge is not only all that, and more so; but is "the rest of mankind" besides.

Then the judge goes further—talks solemnly, yet familiar; to wheedle jurors the better, he mixes himself with them, his "We" embracing both judge and jury. I shall now quote actual language used in this very court, by the late Hon. Judge Woodbury:—

"One of the peculiar dangers ... to which jurors, as well as judges, are exposed, is the unpopularity, or obnoxiousness ... of any particular law, which has been violated, leading us ... to be timid or unfaithful in enforcing it ... the subject-matter being a delicate or offensive one." "While we ... are holding the scales as well as the sword of Justice, in humble imitation of the Divine Judge on high," it is our duty to "let law, as law, [that is, whether it is just or unjust] reign supreme, reign equally over all, and as to all things, no less than persons; and till it is changed by the proper authorities, not to interpose our individual caprices or fancies or speculations [that is, our convictions of justice] to defeat its due course and triumph." We must not "disregard laws, when disliked, because we can, under the universal suffrage enjoyed here, otherwise help legally to change or annul them by our votes." "As jurors you have sworn to obey them till so changed, and ought to stand by them faithfully, to the last moment of their existence." "We are safest in our capacity of public officers ... to execute the laws as they are [right or wrong], while others who may make or retain bad laws in the statute-book, are answerable for their own wrong. If they preserve laws on the statute-book, which are darkness rather than light and life to the people, theirs is the fault, [that is, if a blacksmith make a dagger, and tell us to stab an innocent man with it, we must obey, and the blame will rest on the blacksmith who made the dagger, not on the assassin who murdered with it!] In some cases, also, when we think the existing laws and punishments are wrong, and hence venture to encourage others in disobedience by neglecting to indict and punish offenders, it should make us pause and halt when it is remembered, it may turn out that we ourselves may not be exactly Solons or Solomons in these respects, nor quite so much wiser than the laws themselves, as sometimes we are hastily induced to suppose." "Miserable must be the fate of that community where the ministers of the law are themselves disposed to disregard it;" "government will become a curse;" "and this whether such a betrayal of public trust springs from the delusions of false philanthropy or fanatical prejudices, no less than when it comes from unbridled licentiousness."

"We must not lay the flattering unction to our souls, that because by some possibility there may not be guilt, we can rightfully discharge as if there were no guilt." "It is sometimes urged against agreeing to indict, convict, or punish, that we have conscientious scruples on the subject;" "if sincere tenderness of conscience presses on the heart and mind against executing some of the laws, it should lead us to decline office or resign; not to neglect or disobey, while in office, what we have promised and sworn to perform;" [as if the juror swore to do injustice!] "or if a majority prove unaccommodating or inflexible against us, then it behooves those differing from them ... to withdraw entirely from such a government, and emigrate." [So the juror must not try to do justice at home, but seek it in exile.] "But in all such cases we must take special care not to indulge ourselves in considering an act as a sin which is only disagreeable, or the result of only some prejudice or caprice." "The presumptions are that all laws, sanctioned by such intelligent, numerous, and respectable members of society as compose our legislative bodies, are constitutional, and until pronounced otherwise by the proper tribunal, the judiciary, it is perilous for jurors to disobey them," [that is, to refuse to execute them] "and it is trifling with their solemn obligations to disregard them in any way and on any occasion, from constitutional doubts, unless of the clearest and strongest character."[115]

He then tells them that no feeling of Humanity must be allowed to prevent them from executing any law which the court declares to them, "whether the statute is a harsh one, is not for us to determine."[116] A cruel law is to be enforced as vigorously as a humane one; an unjust law as a just one; a statute which aims to defeat the purpose of Law itself, just as readily as one which aims to secure the dearest rights of humanity. If the statute is notoriously wicked, as in the case supposed, then the Judge says: "It is to be observed that this statute [the fugitive slave bill] subjects no person to arrest who was not before liable to be seized and carried out of the State;" "Congress has enacted this law. It is imperative, and it will be enforced. Let no man mistake the mildness and forbearance with which the criminal code is habitually administered, [as in cases of engaging in the slave-trade] for weakness or timidity. Resistance [to the fugitive slave bill] must make it sternly inflexible." "As great efforts have been made to convince the public that the recent law [the fugitive slave bill] cannot be enforced with a good conscience, but may be conscientiously resisted ... I deem it proper to advert, briefly, to the moral aspects of the subject." "The States without the constitution would be to each other foreign nations." "Those, therefore, who have the strongest convictions of the immorality of the institution of slavery, are not thereby authorized to conclude that the provision for delivering up fugitive slaves is morally wrong, [that is, if it be wrong to hold man in bondage, it is also not wrong,] or that our Fathers ... did not act wisely, justly, and humanely in acceding to the compacts of the Constitution." "Even those who go to the extreme of condemning the Constitution and the laws made under it, as unjust and immoral, cannot ... justify resistance. In their view, such laws are inconsistent with the justice and benevolence and against the will of the Supreme Lawgiver, and they emphatically ask, 'Which shall we obey, the law of man, or the Will of God?' I answer, 'Obey both!' The incompatibility which the question assumes [between Right and Wrong, or Good and Evil, or God and the Devil] does not exist! Unjust and oppressive laws may indeed be passed by human governments. But if Infinite and Inscrutable Wisdom permits political society, having the power of human legislation, to establish such laws, may not the same Infinite and Inscrutable Wisdom permit and require an individual, who has no such power, to obey them?" [So "if Infinite and Inscrutable Wisdom permits" a Blacksmith "having the power" to forge steel and temper it, to make daggers, "may not the same Infinite and Inscrutable Wisdom permit and require the individual" carpenter or tailor, who has no such power, to use the dagger for the purpose intended!] "Conscience, indeed, is to be reverenced, and obeyed; but still we must remember that it is fallible, especially when the rights of others are concerned, [that is, the right to kidnap men] and may lead us to do great injustice, [by refusing to punish a man who helps his brother enjoy his self-evident, natural, and unalienable right to life, liberty, and the pursuit of happiness]. The annals of the world abound with enormities committed by a narrow and darkened conscience." A statute "is the moral judgment, the embodied conscience of the political community, [the fugitive slave bill the 'embodied conscience' of New England]. To this not only is each individual bound to submit, [right or wrong,] but it is a new and controlling element in forming his own moral judgment;" [that is, he must think the statute is just]. "Obedience is a moral duty, [no matter how immoral the law may be]. This is as certain as that the Creator made man a social being;" "to obey the laws of the land [no matter what laws, or how wicked soever] is, then, to obey the Will of God!"

Gentlemen of the Jury, you think I have imagined and made up this language out of my own fancy. No, Gentlemen, I could not do it. I have not the genius for such sophistry. I only quote the words of the Hon. Judge Peleg Sprague delivered to the grand-jury of this Circuit Court of United States at Boston, March 18, 1851.[117] Gentlemen, I showed you what Thurlow could say at Horne Tooke's trial on the 4th of July, 1777. Nay, I quoted the words of Powis and Allybone, and Scroggs and Jeffreys.[118] But, Gentlemen, the judge of New England transcends the judges of Old England.

3. Having made this general preparation for his work and shaped his vessel to the proper form, he proceeds to fill it with the requisite matter.

(1.) He practically makes the Law just as he likes, so as to suit the general purpose of the government, or the special purpose of his private vengeance or ambition. Thus,

a. Out of the whole complex of law—statutes, decisions, customs, charges, opinions of judicial men, since the Norman conquest or before it,—he selects that special weapon which will serve his present turn. And tells the jury, "that is the law which you are sworn to enforce. I have not made it—it is the Lex terræ, the Law of the Land." Or if in such an arsenal, so copious, he finds no weapon ready made, then

b. Out of that pile of ancient instruments he selects something which he forges over anew, and thus constructs a new form of law when he could not find one ready for his hand. If a straight statute will not catch the intended victims he perverts it to a hook and therewith lays hold. He thus settles the law.

(2.) He next practically determines what Deed constitutes the "offence" forbidden by the law he has just made. So he selects some act which it is notorious was done by the man he strikes at, and declares it is the "offence," the "crime." Here too he is aided by ancient precedent; whereof if our brief Republican annals do not furnish examples, he hies to the exhaustless treasury of Despotism in the English common law. He opens the "Reports," the "Statutes of the Realm," or goes back to the "Year-books." Antiquity is rich in examples of tyranny. "He readily finds a stick who would beat a dog." "Such are the opinions," quoth he, "of the venerable Chief Justice Jones," or "my Lord Chancellor Finch," or "Baron Twysden," or "my Lord Chief Justice Kelyng."

Thus the Judge constructs the Jury—out of such men as he wishes for his purpose; constructs the Law, constructs the Offence, the Crime: nay, he points out the particular Deed so plain that he constructs the Indictment. All that is left for the "Grand Inquest" is the mechanical work of listening to the "evidence" and signing the Bill—"Billa Vera," a true bill. That they may accomplish this work he delivers them over to the District Attorney; he may be also an agent of the government, appointed for his party services, looking for his reward, expecting future pay for present work, extra pay for uncommon zeal and "discretion." Gentlemen of the Jury, this may be the case—humanity is fallible, and it sometimes may happen even in the Circuit Court of the United States that such a man should hold the office of District Attorney. For it is not to be expected, nay, it is what we should not even ask—that this place should always be filled by such conspicuous talent, such consummate learning, and such unblemished integrity as that of the present attorney (Hon. Mr. Hallett). No, Gentlemen of the Jury, as I look round these walls I am proud of my country! Such a District Attorney, so bearing "his great commission in his look;" his political course as free from turning and winding as the river Missouri; high-minded, the very Cæsar's wife of democratic virtue,—spotless and unsuspected; never seeking office, yet alike faithful to his principles and his party; and with indignant foot spurning the Administration's bootless bribe,—the fact outtravels fancy. Nay, Gentlemen, it is something to be an American—I feel it as I look about me. For the honorable Attorney is perfectly suited to this Honorable Court;—yea, to the Administration which gives them both their dignity and their work and its pay. Happy country with such an Attorney, fortunate with such a Court, but thrice and four times fortunate when such several stars of justice unite in such a constellation of juridic fire!

But, Gentlemen, it is too much to ask of human nature that it should be always so. In my supposed case, the judge delivers the persons accused to the officers, restless, bellowing, and expecting some fodder to be pitched down to them from the national mow, already licking their mouths which drool with hungry anticipation. They will swear as the court desires. Then the Attorney talks with the most pliant jurors, coaxes them, wheedles them, stimulates them to do what he wants done. Some he threatens with the "displeasure of the government;" he swears at some. After all, if the jury refuse to find a bill,—a case, Gentlemen, which has happened,—they are discharged; and a new jury is summoned; some creature of the government is put on it, nay, perhaps some kinsman of the anxious judge, at least a Brother-in-Law, and at last twenty-three men are found of whom twelve consent to a "True Bill." Then great is the joy in the judge's heart,—it is corrupt judges I am speaking of, Gentlemen of the Jury, not of upright and noble men, may it please your Honors! There is great joy in the judge's heart, and great rejoicing amongst his kinsfolk and intimate friends who whinney and neigh over it in the public journals, and leer at the indicted man in the street, lolling out their tongues greedy for his vengeance!

II. Now, Gentlemen, look next at the judge's dealing with the Trial-Jury. He proceeds as before.

1. He sifts the material returned to him, through those three sieves of questioning, and gets a Jury with no hard individual lumps of solid personal independence. They take the oath which you have just taken, Gentlemen: "You shall well and truly try the issue between the United States and the Defendant at the Bar, according to the law, and the evidence given you, so help you God!"

The facts are then presented, and the case argued on both sides.

2. The Judge sums up, and charges the Jury. He explains their oath; to try the issue according to the law does not mean (a) according to the whole complex which is called "Law," or "The Law," but according only to that particular statute which forbids the deed charged,—for otherwise the Jury must judge of the Purpose of Law, which is Justice, and inquire into the rightfulness of the deed and of the statute which forbids it. Nor does it mean (b) by the Jurors' notion of that statute, but only by the Judge's opinion thereof. He tells them—if they proceed to inquire into the natural Justice of the deed, or into the law which forbids it, then they transcend their office, and are guilty of "Perjury," and reads them the statute for the punishment of that offence, and refers to examples—from the times of the Stuarts, though he does not mention that—when Jurors were fined and otherwise severely dealt with for daring to resist a judge.

Then out of the facts testified to by the government witnesses, he selects some one which is best supported, of which there is no doubt. He then declares that the question of "Guilty or not guilty" turns on that point. If the accused did that deed—then he is Guilty. So the moral question, "Has the man done a wrong thing?" is taken from their consideration; the intellectual question, "Has he done a deed which amounts to the crime forbidden?" is not before them; only the mechanical question, "Did he do that particular act?" They are not to inquire as to the Justice of the law, its Constitutionality, or its Legality; nor the Justice or the Criminality of the deed—only of its Actuality, Did he do this deed? Nay, sometimes the Judge treats them as cattle, and orders them to find the facts for the government. If they refuse, he threatens them with punishment.

Thus he constructs the Trial-Jury, the Law, the Evidence, the Crime, and the Fact.

Now, Gentlemen, when this is done and done thoroughly, the Judge has kept all the Forms, Presentment by the Grand-Jury, and Trial by a Petty Jury; but the substance is all gone; the Jury is only a stalking horse, and behind it creeps the Judicial servant of Tyranny, armed with the blunderbuss of law,—made and loaded by himself,—and delivers his shot in the name of law, but against Justice, that purpose of all law. Thus can tyranny be established—while all the forms of law are kept.[119]

Gentlemen of the Jury, let me make this more clear by a special case wholly fictitious.—Thomas Nason, a "Non-Resistant" and a Quaker, is a colored citizen of Boston, the son and once the slave of Hon. James Nason of Virginia, but now legally become a free man by self-purchase; he has the bill of sale of himself in his pocket, and so carries about him a title deed which would perhaps satisfy your Honors of his right to liberty. But his mother Lizzie (Randolph) Nason, a descendant of both Mr. Jefferson and Mr. Madison,—for Virginia, I am told, can boast of many children descended from two Presidents, perhaps from three, who

"Boast the pure blood of an illustrious race, In quiet flow from Lucrece to Lucrece"—

from Saxon master to African slave,—is still the bondwoman of the Hon. James, the father of her son Thomas. From the "Plantation manners" of her master, the concubine, "foolishly dissatisfied with slavery," flies to Boston, and takes refuge with her Quaker son, who conceals his mother, and shelters her for a time. But let me suppose that his Honor Judge Curtis, while at Washington, fired with that patriotism which is not only habitual but natural and indigenous to his Honor, informs Mr. Nason of the hiding-place of his female slave, thus betraying a "mistress" to her master, no longer, alas, her "keeper." It is no injurious imputation—it is an imaginary honor I attribute to the learned and honorable Judge. Mr. Nason sends the proper agent to Boston to save the Union of States by restoring the union of master and slave. Mr. George Ticknor Curtis, fugitive slave bill commissioner, and brother to the Hon. Judge, issues his warrant for kidnapping the mother; his coadjutor and friend, Mr. Butman, attempts to seize her in her son's house. Thomas, unarmed, resists the intruder, and with a child's pop-gun drives that valiant officer out of the house, and puts the mother in a place of safety,—beneath the flag of England, or the Pope, or the Czar. Commissioner Curtis telegraphs the news to Washington,—announcing a "new case of treason—more 'levying war!'" The Secretaries of State and of War write dreadful letters, breathing fire and slaughter, and President Pierce, a man of most heroic courage, alike mindful of his former actual military exploits at Chapultepec, of his delegated triumph at Greytown, and of the immortal glory of Mr. Fillmore, issues his Proclamation, calling on all good citizens, and especially on the politicians of his party, to "Save the Union" from the treason of this terrible Thomas Nason, who will blow up the Constitution with a pop-gun!

At the next session of the Honorable Circuit Court of the United States in and for the first District, his Honor the Hon. Benjamin Robbins Curtis, Judge, constructs and charges the Grand-Jury in the manner already set forth. He instructs them that if any man, by force and arms, namely, with a pop-gun, does resist a body of United States officers, attempting to kidnap a woman, his own mother, that he thereby levies war against the United States, and accordingly commits the crime of "Treason" which consists in levying war against the United States—the "amount of force is not material." And it is their duty to indict all persons in that form offending. The Attorney, the Hon. Benjamin Franklin Hallett, offers to "bet ten dollars that I will get" Nason "indicted," and urges the matter. But no bill is found, the Jury is discharged, a new Jury is summoned, and Mr. William W. Greenough, the Brother-in-law of the Judge is put on it, "drawn as Juror"—and then a "true bill" is found, Mr. Hallett actually making an indictment that cannot be quashed!

On the day before Thanksgiving Thomas Nason is arraigned; and is brought to trial for this new Boston Massacre on the anniversary of the old one—on the Fifth of March. The judge constructs a Trial-Jury as before. Mr. Hallett, assisted by Mr. Thomas, Mr. George T. Curtis, and Commissioner Loring, manage the case for the government, bringing out the whole strength of the kidnapping party, and directing this Macedonian phalanx of Humanity and Law and Piety against a poor friendless negro. Mr. Hale, Mr. Ellis, and Mr. Dana defend him. Officer Butman and his coadjutors—members of the "Marshal's guard"—testify that Mr. Nason attacked them with the felonious weapon above named, putting them in mortal bodily fear greater than that which in Mexico once overthrew the (future) President of all this land! Mr. Herrman, the dealer in toys, testifies that he sold the murderous weapon for twenty-five cents to Mr. Nason who declared that he "could frighten Butman with it;" that it is of German manufacture, and is called a Knallbüchse!

Judge Curtis sums up the matter. He tells the jury, (1.) That they are not to judge of the Law punishing treason, but to take it from the Court. (2.) Not to judge what Act constitutes the Crime of Treason, but take that also from the Court, and if the Court decides that offering a pop-gun at a rowdy's breast constitutes the crime of treason, they are to accept the decision as constitutional law. (3.) They are not to ask if it be just to hang a man for thus resisting a body of men who sought to kidnap his mother, for even if it be unjust and cruel it is none of their concern, for they must execute a cruel and unjust law with even more promptitude than a just and humane one, and in the language of the "Defender of the Constitution," "conquer their prejudices," and "do a disagreeable duty." (4.) If they think the Law commands one thing and the Will of God exactly the opposite, in the well-known words of Judge Sprague, they must "obey both" by keeping the law of man when it contradicts the law of God, for they can never be good Christians so long as they scruple to hang a Quaker for driving off a kidnapper; and obedience to the law is a moral duty, no matter how immoral the law may be, and "to obey the law of the land is to obey the will of God." (5.) But they have a simple question of fact to determine; namely, Did the Defendant resist officer Butman in the manner set forth? If satisfied of that, they must find him guilty. No mistaken notions of Justice must induce them to refuse their verdict—for they are not to make the law, but only help execute it; and their conscience is so "fallible, especially when the rights of others are concerned, and may lead them to do great injustice," for "the annals of the world abound with enormities committed by a narrow and darkened conscience." They must not ask if it be "religious" to do so—for to use the words of the most religious of all Americans, a man of most unspotted life in public and private, "Religion has nothing to do with politics," and this is a political trial. If there be any injustice in the law and its execution the blame lies with the makers thereof not with the jurors, and they may wash their hands as clean as Pilate's from the blood of Christ. Besides, if there be injustice the President can pardon the offender, and from his well-known religious character—which rests on the unbiased testimony of his own minister and the statement of several partisan newspapers published in the very heat of the election, when men, and especially politicians looking for office, never exaggerate,—he doubtless "will listen to petitions for a commutation of punishment!"

But there is no injustice in it—for slavery is part of the lex terræ, the law of the land, protected by the Constitution itself, which is the Lex Suprema—the Supreme Law of the Land, and nearly eighty years old! Besides, "Slavery is not immoral," not contrary to the public policy of Massachusetts; and, moreover, the "mother" whom the criminal actually rescued, was a "foreigner" and "whatever rights she had, she had no right here."[120]

But it is not a cruel or an unchristian thing to require a negro layman to allow his mother to be kidnapped in his own house—especially if she were a born slave, and so by the very law "a chattel personal to all uses, intents, and purposes whatever," and of course wholly divested of all natural rights, even if a colored person ever had any—for an eminent American minister, of one of the most enlightened sects in Christendom, has publicly offered to send his own freeborn mother into bondage for ever!

Moreover, if the jurors do not find a verdict of guilty, then they themselves are guilty of Perjury!

So the jury, without leaving their seats, find him guilty; the judge sentences; the President signs the Death-warrant, and Marshal Freeman hangs the man—to the great joy of the Commissioner's and the Marshal's guard who vacate the brothels once more and attend on that occasion and triumph over the murdered Quaker.

But the mischief does not stop there; the Boston slave-hunters are not yet satisfied with blood; the judge constructs another grand-jury as before, only getting more of his kinsfolk thereon, and taking his law from the impeached Judges Kelyng and Chase, charges that all persons who advise to an act of levying war, or evince an "express liking" for it, or "approbation" of it, are also guilty of treason; and "in treason all are Principals." Accordingly the jury must indict all who have evinced an "express liking" of the rescue, though they did not evince approval of the rescue by such means. It appears that Rev. Mr. Grimes in the meeting-house the Sunday before the treason was consummated, had actually prayed that God would "break the arm of the oppressor and let the oppressed go free;" that he read from a book called the Old Testament, "Bewray not him that wandereth," "Hide the outcast," and other paragraphs and sentences of like seditious nature. Nay, that from the New Testament he had actually read the Sermon on the Mount, especially the Golden Rule and the summing of the Law and the Prophets in one word, Love,—and had applied this to the case of fugitive slaves; moreover, that he had read the xxvth chapter of Matthew from the 31st to the 46th verse, with dreadful emphasis.

Nay, anti-slavery men—in lectures—and in speeches in the Music Hall, which was built by pious people—and in Faneuil Hall, which was the old Cradle of Liberty, had actually spoken against man-stealing,—and even against some of the family of kidnappers in Boston!

Still further, he adds, with great solemnity, a woman—a negro woman,—the actual wife of the criminal Nason—had brought intelligence—to her husband—that Mr. George T. Curtis,—the brother of the judge,—had issued his warrant—and Mr. Butman—"with a monstrous watch"—was coming to execute it—she told her husband,—and—incited him to his dreadful crime! If you find these facts you must convict the prisoners.

So thirty or forty more are hanged for treason.

Gentlemen of the Jury, these fictitious cases doubtless seem extravagant to you. I am glad they do. In peaceful times, in the majority of cases there is no disagreement between the law, the judge, and the jurors; the law is just, or at least is an attempt at justice, the judge wishes to do justice by means thereof, and the jurors aim at the same thing. In such cases there is no motive for doing wrong to any person: so the judge fairly interprets the righteous and wholesome law, the jurors willingly receive the interpretation and apply it to the special case, and substantial justice is done. This happens not only in civil suits between party and party, but also in most of the criminal cases between the Public and the Defendant. But in times of great political excitement, in a period of crisis and transition, when one party seeks to establish a despotism and deprive some other class of men of their natural rights, cases like those I have imagined actually happen. Then there is a disagreement between the judge and the jury; nay, often between the jury and the special statute wherewith the government seeks to work its iniquity. It is on such occasions that the great value of this institution appears,—then the jury hold a shield over the head of their brother and defend him from the malignity of the government and the Goliath of injustice, appointed its champion to defy the Law of the living God, is smote in the forehead by the smooth stone taken from a country brook, and lies there slain by a simple rustic hand; for in such cases the jury fall back on their original rights, judge of the Fact, the Law, and the Application of the Law to the Fact, and do justice in spite of the court, at least prevent injustice.

Now, Gentlemen of the Jury, I will mention some examples of this kind, partly to show the process by which attempts have been made to establish despotism, that by the English past you may be warned for the American present and future; and partly that your function in this and all cases may become clear to you and the Nation. The facts of history will show that my fancies are not extravagant.

1. In April, 1554, just three hundred and one years ago this very month, in England, Sir Nicolas Throckmorton, a gentleman of distinguished family, was brought to trial for high treason. He had held a high military office under Henry VIII. and Edward VI., but "made himself obnoxious to the Papists, by his adherence to some of the persecuted Reformers." With his two brothers he attended Anne Askew to her martyrdom when she was burnt for heresy, where they were told to "take heed to your lives for you are marked men." He was brought to trial April 17th, 1554, the first year of Bloody Mary. Of course he was allowed no counsel; the court was insolent, and demanded his condemnation. But the jury acquitted him; whereupon the court shut the twelve jurors in prison! Four of them made their peace with the judges, and were delivered: but eight were kept in jail till the next December, and then fined,—three of them £60 apiece, and five £225 apiece.

This is one of the earliest cases that I find, where an English jury in a political trial refused to return such a verdict as the tyrant demanded.[121]

2. In September, 1670, William Penn, afterwards so famous, and William Mead, were brought to trial before the Lord Mayor of London, a creature of the king, charged with "a tumultuous assembly." For the Quaker meeting-house in Grace Church Street, had been forcibly shut by the government, and Mr. Penn had preached to an audience of Dissenters in the street itself. The court was exceedingly insolent and overbearing, interrupting and insulting the defendants continually. The jury found a special verdict—"guilty of speaking in Grace Church Street." The judge sent them out to return a verdict more suitable to the desire of the government. Again they substantially found the same verdict. "This both Mayor and Recorder resented at so high a rate that they exceeded the bounds of all reason and civility." The Recorder said, "You shall not be dismissed till we have a verdict that the court will accept; you shall be locked up without meat, drink, fire, and tobacco; you shall not think thus to abuse the court; we will have a verdict by the help of God, or you shall starve for it!" When Penn attempted to speak, the Recorder roared out, "Stop that prating fellow's mouth or put him out of court." The jury were sent out a third time, and kept all night, with no food, or drink, or bed. At last they returned a verdict of "not guilty," to the great wrath of the court. The judge fined the jurors forty marks apiece, about $140, and put them in jail until they should pay that sum. The foreman, Edward Bushel, refused to pay his fine and was kept in jail until he was discharged on Habeas Corpus in November. Here the attempt of a wicked government and a cruel judge was defeated by the noble conduct of the jurors, who dared be faithful to their duty.[122]

3. In 1681 an attempt was made to procure an indictment against the Earl of Shaftesbury, for High Treason. The Bill was presented to the Grand-Jury at London; Chief Justice Pemberton gave them the charge, at the king's desire—it was Charles II. They were commanded to examine the evidence in public in the presence of the court, in order that they might thus be overawed and forced to find a bill, in which case the court had matters so arranged that they were sure of a conviction. The court took part in examining the witnesses, attempting to make out a case against the Earl. But the jury returned the bill with Ignoramus on it, and so found no indictment. The spectators rent the air with their shouts. The court was in great wrath, and soon after the king seized the Charter of London, as I have already shown you, seeking to destroy that strong-hold of Liberty. Shaftesbury escaped—the jury was discharged. Why did not the court summon another jury, and the chief justice put his brother-in-law on it? Roger Coke says, "But as the knights of Malta could make knights of their order for eight pence a piece, yet could not make a soldier or seaman; so these kings [the Stuarts] though they could make what judges they pleased to do their business, yet could not make a grand-jury." For the grand-juries were returned by the Sheriffs, and the sheriffs were chosen by the Livery, the corporation of London. This fact made the king desire to seize the charter, then he could make a grand-jury to suit himself, out of the kinsfolk of the judge.[123]

4. Next comes the remarkable case of the Seven Bishops, which I have spoken of already.[124] You remember the facts, Gentlemen. The king, James II., in 1688, wishing to overturn Protestantism—the better to establish his tyranny—issued his notorious proclamation, setting aside the laws of the land and subverting the English Church. He commanded all Bishops and other ministers of religion to read the illegal proclamation on a day fixed. Seven Bishops presented to him a petition in most decorous language, remonstrating against the Proclamation, and asking to be excused from reading it to their congregations. The king consulted with Father Petre,—a Jesuit, his confessor—on the matter, and had the bishops brought to trial for a misdemeanor, for publishing "a seditious libel in writing against his majesty and his government." It was "obstructing an officer."

Then the question before the trial-jury was, Did the seven bishops, by presenting a petition to the king—asking that they might not be forced to do an act against the laws of England and their own consciences—commit the offence of publishing a seditious libel; and, Shall they be punished for that act? All the judges but two, Holloway and Powell, said "Yes," and the jury were so charged. But the jury said, "Not guilty." The consequence was this last of the Stuarts was foiled in his attempt to restore papal tyranny to England and establish such a despotism as already prevailed in France and Spain. Here the jury stood between the tyrant and the Liberties of the People.

Gentlemen of the Jury, let me show you how that noble verdict was received. Soon as the verdict was given, says Bishop Burnet, "There were immediately very loud acclamations throughout Westminster Hall, and the words 'Not guilty,' 'Not guilty,' went round with shouts and huzzas; thereat the King's Solicitor moved very earnestly that such as had shouted in the court might be committed. But the shouts were carried on through the cities of Westminster and London and flew presently to Hounslow Heath, where the soldiers in the camp echoed them so loud that it startled the king."[125] "Every man seemed transported with joy. Bonfires were made all about the streets, and the news going over the nation, produced the like rejoicings all England over. The king's presence kept the army in some order. But he was no sooner gone out of the camp, than he was followed with an universal shouting, as if it had been a victory obtained."[126] "When the Bishops withdrew from the court, they were surrounded by countless thousands who eagerly knelt down to receive their blessing." Of course the two judges who stood out for the liberties of the citizens, were removed from office!

5. Here is another remarkable case, that of William Owen, in 1752. These are the facts. In 1750 there was a contested election of a member of Parliament for Westminster. Hon. Alexander Murray, an anti-ministerial member of the Commons, was denounced to the House for his conduct during the election, and it was ordered that he should be confined a close prisoner in Newgate, and that he receive his sentence on his knees. He refused to kneel, and was punished with great cruelty by the bigoted and intolerant House. Mr. Owen, who was a bookseller, published a pamphlet, entitled "The Case of Alexander Murray, Esq.," detailing the facts and commenting thereon. For this an information was laid against him, charging him with publishing a "wicked, false, scandalous, seditious, and malicious libel."

On the trial, the Attorney-General, Ryder, thus delivered himself:—

"What!—shall a person appeal from that Court, who are the only judges of things belonging to them, the House of Commons I mean. An appeal! To whom? To a mob? Must Justice be appealed from? To whom? To injustice? Appeal to 'the good people of England,' 'particularly the inhabitants of Westminster'! The House of Commons are the good people of England, being the representatives of the people. The rest are—what? Nothing—unless it be a mob. But the clear meaning of this libel was an appeal to violence, in fact, and to stigmatize the House." "Then he charges the House with sinking material evidence; which in fact is accusing the House of injustice. This is a charge the most shocking; the most severe, and the most unjust and virulent, against the good, the tender House of Commons; that safeguard of our liberty, and guardian of our welfare."

"This libel ... will be found the most powerful invective that the skill of man could invent. I will not say the skill, but the wit, art, and false contrivance of man, instigated by Satan;" "to say that this is not a libel, is to say that there is no justice, equity, or right in the world."

The Solicitor-General told the Jury that they were only to inquire if Mr. Owen published the pamphlet, "the rest follows of course;" "you are upon your oaths; you judge of the facts ... and only them." Chief Justice Lee summed up the evidence "and delivered it as his opinion, that the Jury ought to find the defendant guilty; for he thought the fact of publication was fully proved; and if so they could not avoid bringing in the defendant guilty."

The jury returned, "Not guilty;" but Ryder, the Attorney-General, put this question, Do you think the evidence is not sufficient to convince you that Owen did sell the book? The foreman stuck to his general verdict, "Not guilty," "Not guilty;" and several of the jurymen said, "that is our verdict, my lord, and we abide by it." "Upon which the court broke up, and there was a prodigious shout in the hall." Then "the Jury judged as to facts, law, and justice of the whole, and therefore did not answer the leading question which was so artfully put to them."[127] Of course the insolent Attorney-General was soon made "Lord Chief Justice," and rode the bench after the antiquated routine.

This was the third great case in which the Jury had vindicated the right of speech.

6. Here is another case very famous in its day, and of great value as helping to establish the rights of juries, and so to protect the natural right of the citizens—the Trial of John Miller for reprinting Junius's Letter to the King, in 1770.

Here are the facts. Mr. Miller was the publisher of a newspaper called the London Evening Post, and therein, on December 19, 1769, he reprinted Junius's celebrated Letter to the King. For this act, an information ex officio was laid against him, wherein he was charged with publishing a false, wicked, seditious, and malicious libel. A suit had already been brought against Woodfall, the publisher of the Public Advertiser, in which the letter originally appeared, but the prosecution had not turned out to the satisfaction of the government, nor had the great question been definitely settled. So this action was brought against Mr. Miller, who reprinted the original letter the day of its first appearance.[128]

Solicitor-General Thurlow,—whom you have met before, Gentlemen,—opened the case for the Crown, and said:—

"I have not of myself been able to imagine ... that there is a serious man of the profession in the kingdom who has the smallest doubt whether this ought to be deemed a libel or not;" "for I neither do, nor ever will, attempt to lay before a jury, a cause, in which I was under the necessity of stating a single principle that went to intrench, in the smallest degree, upon the avowed and acknowledged liberty of the subjects of this country, even with regard to the press. The complaint I have to lay before you is that that liberty has been so abused, so turned to licentiousness, ... that under the notion of arrogating liberty to one man, that is the writer, printer, and publisher of this paper, they do ... annihilate and destroy the liberty of all men, more or less. Undoubtedly the man that has indulged the liberty of robbing upon the highway, has a very considerable portion of it allotted to him." The defendant "has published a paper, in which, concerning the King, concerning the House of Commons, and concerning the great officers of State, concerning the public affairs of the realm, there are uttered things of such tendency and application as ought to be punished." "When we are come to that situation, when it shall be lawful for any men in this country to speak of the sovereign [George III.] in terms attempting to fix upon him such contempt, abhorrence, and hatred, there is an end of all government whatsoever, and then liberty is indeed to shift for itself." He quotes from the paper: "'He [the king] has taken a decisive personal part against the subjects of America, and those subjects know how to distinguish the sovereign and a venal Parliament, upon one side, from the real sentiments of the English nation upon the other.' For God's sake is that no libel? To talk of the king as taking a part of an hostile sort against one branch of his subjects, and at the same time to connect him ... with the parliament which he calls a venal parliament; is that no libel?"

Lord Mansfield,—the bitterest enemy of the citizens' right of speech and of the trial by jury,—charged upon the jury, "The question for you to try ... is, whether the defendant did print, or publish, or both, a paper of the tenor, and of the meaning, so charged by the information." "If it is of the tenor and meaning set out in the information, the next consideration is, whether he did print and publish it." "If you ... find the defendant not guilty, the fact established by that verdict is, he did not publish a paper of that meaning;" "the fact finally established by your verdict, if you find him guilty, is, that he printed and published a paper, of the tenor and of the meaning set forth in the information;" "but you do not give an opinion ... whether it is or not lawful to print a paper ... of the tenor and meaning in the information;" "if in point of fact it is innocent, it would be an innocent thing."

Thus practically the judge left the jury only one thing to determine, Did Mr. Miller print Junius's letter to the king? That was a fact as notorious as it now is in Boston that the Daily Advertiser supported the fugitive slave bill, and helped its execution, for the letter to the king was there in Mr. Miller's journal as plainly as those defences of the fugitive slave bill were in the Advertiser. If the jury said "guilty," the court had the defendant in their claws,—and all the wrath of the most malignant tories would fall on him and rend him in pieces. But the jury fell back on their legitimate function to determine the Fact, the Law, and the Application of the law to the fact, and returned a verdict, Not Guilty, which a great multitude repeated with loud acclaim!

7. Next, Gentlemen, I will relate a few cases in which the government set all justice at defiance and clove down the right of speech, commonly packing submissive juries. In 1790 and following years, while the French Revolution was in progress, the thoughtful eyes of England fell on the evils of her own country. America was already a Republic, just recovering from the shock of violent separation from her mother,—young, poor, but not unprosperous, and full of future promise too obvious to escape the sagacious politicians who there saw a cause—

"——with fear of change, Perplexing Kings."

The people of France, by a few spasmodic efforts, broke the threefold chain of Priest, King, and Noble, and began to lift up their head. But Saxon England is sober, and so went to work more solemnly than her mercurial neighbor. And besides, the British people had already a firm, broad basis of personal freedom to stand on. Much was thought, written, and spoken about reform in England, then most desperately needing it. The American Revolution had English admirers whom no courts could silence. Nay, at first the French Revolution delighted some of the ablest and best men in Britain, who therein beheld the carrying out of the great Principles which Aristotle and Machiavelli had laid down as the law of the historical development and social evolution of mankind. They wished some improvement in England itself. But of course there was a strong opposition made to all change. Parliament refused to relieve the evils which were made obvious. The upper House of Nobles was composed of the Elder Sons of the families which had a social and pecuniary interest in oppressing the people, and the lower House "consisted mainly of the Younger Sons of the same families, or still worse the purchased dependents" of their families. Societies were organized for Reform, such as the "London Corresponding Society," "the Friends of the People," etc., etc. The last mentioned contained many literary, scientific, and political men, and about thirty members of Parliament. Great complaints were made in public at the inequality of Representation in Parliament. Stormy debates took place in Parliament itself—such as we have not yet heard in America, but which wicked and abandoned men are fast bringing upon us. Pitt and Fox were on opposite sides.

"——and such a frown Each cast at the other, as when two black clouds, With Heaven's artillery fraught, come rattling on Over the Caspian, then stand front to front, Hovering a space, till winds the signal blow To join their dark encounter in mid air."

At that time the House of Commons was mainly filled with creatures of a few powerful men; thus 91 commoners elected 139 members of the commons, and 71 peers also elected 163; so 302 British members of Parliament, besides 45 more from Scotland,—347 in all,—were returned by 162 persons. This was called "Representation of the People." From the party who feared to lose their power of tyranny, there went out the decree, "Discussion on the subject of national grievances must be suppressed, in Parliament and out of Parliament." Violent attempts were made to suppress discussion. In short, the same efforts were made in England which were attempted in New York and Boston in 1850 and the two following years, till they were ended by a little sprinkling of dust. But in Britain the public mind is harsher than ever in America, and the weapons which broke in the hand of Old England were much more formidable than that which here so suddenly snapped, and with such damage to the assassinating hand.

(1.) In 1792, John Lambert and two others published an advertisement in the London Morning Chronicle, with which they were connected as printers or proprietors, addressed "to the friends of free inquiry and the general good," inviting them in a peaceful, calm, and unbiased manner to endeavor to improve the public morals in respect to law, taxation, representation, and political administration. They were prosecuted, on ex officio information, for a "false, wicked, scandalous, and seditious libel." The government made every effort to secure their conviction. But it failed.[129]