But in America the Judge has an additional function; he is to determine the Constitutionality of a law. For while the British King and Parliament claim to be legislatively omnipotent, supreme, the Ultimate human source of law, the Living Constitution of the realm, and therefore themselves the only Norm of law,—howsoever ill-founded the claim may be,—in America it is the People, not their elected servants, who are the Ultimate human source of law, the Supreme Legislative power. Accordingly the People have prepared a written Constitution, a Power of Attorney authorizing their servants to do certain matters and things relating to the government of the nation. This constitution is the human Norm of law for all the servants of the people. So in administering law the Judge is to ask, Is the statute constitutional? does it square with the Norm of lawwhich the People have laid down; or have the legislative servants exceeded their Power of Attorney, and done matters and things which they were not empowered to do? In deciding this question, the Judge is to consider not merely the Provisional Means which the Constitution designates, but also the Ultimate Purpose thereof, the Justice and Liberty which, as its preamble declares, it expressly aims at, and which are also the ideal End of all sound legislation.
There is no country in the world where a great man has so noble a place and opportunity to serve mankind as in America.
But a wicked Judge, Gentlemen, may do great harm to mankind, as I have already most abundantly shown. For we have inherited a great mass of laws,—customary or statutory; the legislature repeals, modifies, or adds to them; the Judge is to expound them, and suggest their application to each special case. The Jury is to apply or refuse to apply the Judge's "law." In all old countries, some of these laws have come from a barbarous, perhaps even from a savage period; some are the work of tyrants who wrought cruelly for their own advantage, not justly, or for the good of mankind; some have been made in haste and heat, the legislature intending to do an unjust thing. Now an unjust Judge has great power to select wicked statutes, customs, or decisions; and in no country has he more power for evil than in the federal courts of the United States. For as in England, when the King-power makes a wicked law, the Judge, who is himself made by that same power, may declare it just, and execute the heinous thing; so in America, when the Slave power enacts a wicked statute, contrary to the purpose of the constitution and to the natural justice of God, the Judge, who is the creature of that same power, may declare it constitutional and binding on all the People who made the constitution as their Power of Attorney. Thus all the value of the constitution to check despotism is destroyed, and the Fortress of Freedom is betrayed into the hands of the enemies of liberty!
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 theyhad 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. Sothe 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 andme! 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 anex post factolaw,—applied it to the special case, andon 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 lawsde 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, lawsde Jure, enactedbefore 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 visitthe 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 iswritten—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 todictateit 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 twelveaoncilia, 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 theQuestion 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 theQuestion 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 theQuestion 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 todecide 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, theanimus libellandias much as theanimus 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 todecide 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 tothe 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,nototherwise 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; forit 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 theQuestion 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" orignorethe 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 anolle prosequiin 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 deednaturally 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 thebare 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 thePlaintiff-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 ingeneral, 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, andmould 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 hisCharge 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 theCourt, 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 theCourt. 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 inpromotingthe 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—talkssolemnly, yet familiar; to wheedle jurors the better, he mixes himself with them, his "We" embracingboth judge and jury. I shall now quote actual language used in this very court, by the late Hon. Judge Woodbury:—