"One of the peculiar dangers ... to which jurors, as well as judges, are exposed, is theunpopularity, or obnoxiousness... of any particular law, which has been violated, leadingus... 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, inhumble imitation of the Divine Judgeon 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 toall 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, ourconvictions of justice]to defeat its due course and triumph." We mustnot"disregard laws, when disliked,because we can, under the universal suffrage enjoyed here,otherwise helplegallyto change or annul themby our votes." "As jurorsyou 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 otherswho 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 theexisting 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 thatweourselvesmay not be exactly Solons or Solomonsin 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 abetrayal of public trustsprings from thedelusions 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 somepossibility 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 haveconscientious 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 whichis only disagreeable, or the result of only someprejudice 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 todisregard them in any way and on any occasion, from constitutional doubts, unless of the clearest and strongest character."[115]
"One of the peculiar dangers ... to which jurors, as well as judges, are exposed, is theunpopularity, or obnoxiousness... of any particular law, which has been violated, leadingus... 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, inhumble imitation of the Divine Judgeon 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 toall 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, ourconvictions of justice]to defeat its due course and triumph." We mustnot"disregard laws, when disliked,because we can, under the universal suffrage enjoyed here,otherwise helplegallyto change or annul themby our votes." "As jurorsyou 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 otherswho 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 theexisting 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 thatweourselvesmay not be exactly Solons or Solomonsin 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 abetrayal of public trustsprings from thedelusions 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 somepossibility 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 haveconscientious 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 whichis only disagreeable, or the result of only someprejudice 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 todisregard them in any way and on any occasion, from constitutional doubts, unless of the clearest and strongest character."[115]
He then tells them thatno feeling of Humanitymust 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; anunjust lawas ajust 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, tothe moral aspectsof the subject." "The States without the constitution would be to each other foreign nations." "Those, therefore, who have the strongest convictions of theimmorality of the institution of slavery, are not thereby authorized to conclude that theprovision 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, asunjust 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!' Theincompatibilitywhich the question assumes [betweenRight and Wrong, or Good and Evil, or God and the Devil]does not exist! Unjust and oppressive lawsmay indeed be passedby human governments. But ifInfinite 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 isfallible, 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." Astatute"is the moral judgment, theembodied 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 andcontrolling element in forming his own moral judgment;" [that is, he mustthinkthe statute is just]. "Obedience is amoral duty, [no matter how immoral the law may be].This is as certain as that the Creator made man a social being;" "toobey 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 theLex terræ, the Law of theLand." 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, thismaybe 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 somethingto 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 rejoicingamongst his kinsfolk and intimate friendswho whinney and neigh over it in the public journals, and leer at the indicted man in the street, lolling out their tongues greedy forhisvengeance!
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 issueaccording to the lawdoes 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. Hetells 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 tofind 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
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 "amountof 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 onit, "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 themto 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 hisown ministerand 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 thelex terræ, the law of the land, protected by the Constitution itself, which is theLex 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 righthere."[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 ofPerjury!
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 allpersons whoadviseto 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 statutewherewith 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 thecourt 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 jailuntil they should pay that sum. The foreman, Edward Bushel, refused to pay his fine and was kept in jail until he was discharged onHabeas Corpusin 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 toexamine the evidence in publicin 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 withIgnoramuson 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, yetcould not make a soldier or seaman; so these kings [the Stuarts] thoughthey could make what judges they pleasedto 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 allabout 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 anappeal 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."
"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 anappeal 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 inquireif Mr. Owen published the pamphlet, "the rest follows of course;" "you are upon your oaths; you judge of the facts ... andonly them." Chief Justice Lee summed up the evidence "and delivered it as hisopinion, that theJury ought to find the defendant guilty;for he thought thefact 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 thatOwen 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," androdethe 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 theLondon Evening Post, and therein, on December 19, 1769, he reprinted Junius's celebrated Letter to the King. For this act, an informationex officiowas 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 thePublic 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 ofthis paper, they do ... annihilate and destroy the liberty of all men, more or less. Undoubtedly the man that has indulged theliberty 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? Totalk of the king as taking a part of an hostile sort against one branch of his subjects, and at the same time toconnect him ... with the parliament which he calls a venal parliament; is that no libel?"
"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 ofthis paper, they do ... annihilate and destroy the liberty of all men, more or less. Undoubtedly the man that has indulged theliberty 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? Totalk of the king as taking a part of an hostile sort against one branch of his subjects, and at the same time toconnect 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 thedefendant did print, or publish, or both, apaper of the tenor, and of the meaning, socharged by the information." "If it is of the tenor and meaning set out in the information, the next consideration is, whether hedid 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, thathe printedand published apaper, of the tenorand of the meaning setforth in the information;" "but you donot 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 theDaily Advertisersupported 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 theAdvertiser. 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—
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.
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, onex officioinformation, for a "false, wicked, scandalous, and seditious libel." The government made every effort to secure their conviction. But it failed.[129]
(2.) The same year, Duffin and Lloyd, two debtors in the Fleet Prison, one an American citizen, wrote on the door of the prison chapel "this house to let; peaceable possession will be given by the present tenants on or before the first day of January, 1793, being the commencement of liberty in Great Britain. The republic of France having rooted out despotism, their glorious example and success against tyrants renders infamous Bastiles no longer necessary in Europe." They also were indicted for a "wicked, infamous, and seditious libel," and found guilty. Lloyd was put in the pillory![130]
(3.) In 1793, Rev. William Frend, of the University of Cambridge, published a harmless pamphlet entitled "Peace and Union recommended to the associated bodies of Republicans and anti-Republicans." He was brought to trial, represented as a "heretic, deist, infidel, and atheist," and by sentence of the court banished from the university.[131]
(4.) The same year, John Frost, Esq., "a gentleman" and attorney, when slightly intoxicated after dinner, and provoked by others, said, "I am for equality. I see no reason why any man should not be upon a footing with another; it is every man's birthright." And when asked if he would have no king, he answered, "Yes, no king; the constitution of this country is a bad one." This took place in a random talk at a tavern in London. He was indicted as a person of a "depraved, impious, and disquiet mind, and of a seditious disposition, and contriving, practising, and maliciously, turbulently, and seditiously intending the peace and common tranquillity of our lord the king and his laws to disturb," "to the evil example of all others in like case offending." He was sentenced to six months in Newgate, and one hour in the pillory! He must find sureties for good behavior for five years, himself in £500, two others in £100 each, be imprisoned until the sureties were found, and be struck from the list of attornies![132]
(5.) Rev. William Winterbotham, the same year, in two sermons, exposed some of the evils in the constitution and administration of England, and for that was fined £200, and sentenced to jail for four years,—a good deal more than $300 and twelve months' imprisonment.[133]
(6.) The same year, Thomas Briellat, a London pump-maker, in a private conversation said, "A reformation cannot be effected without a revolution; we have no occasion for kings; there never will be any good time until all kings are abolished from the face of the earth; it is my wish that there were no kings at all." "I wish the French would land 500,000 men to fight the government party." He was tried, found guilty, and sentenced to a fine of £100, and sent to jail for a year.[134]
(7.) Richard Phillips, afterwards Sheriff of London, was sent to jail for eighteen months for selling Paine's Rights of Man; for the same offence two other booksellers were fined and sent to Newgatefor four years! A surgeon and a physician were sent to Newgate for two years for having "seditious libels in their possession." Thirteen persons were indicted at once.[135]
(8.) In 1793 a charge was brought against the Rev. Thomas Fyshe Palmer, formerly a Senior Fellow of Queen's College, Cambridge, and then a Unitarian minister at Dundee. Mr. Palmer wrote an Address which was adopted at a meeting of the Friends of Liberty and published by them, which, in moderate language, called on the People "to join us in our exertions for the preservation of our perishing liberty, and the recovery of our long lost rights." He distributedcopies of this address. He was prosecuted for "Leasing-making," for publishing a "seditious and inflammatory writing." The (Scotch) jury found him guilty, and the judges sentenced him totransportation for seven years. The sentence was executed with rigorous harshness.[136]
(9.) The same year Thomas Muir, Esq., was brought to trial for Leasing-making or public Libel at Edinburgh. He was a promising young lawyer, with liberal tendencies in politics, desiring the education of the great mass of the people and a reform in Parliament. He was a member of various Reform societies, and sometimes spoke at their meetings in a moderate tone recommending only legal efforts—by discussion and petition—to remedy the public grievances. His Honor (Mr. Curtis) who belongs to a family so notoriously "democratic" in the beginning of this century, and so eager in its denunciations of the Federalists of that period, knows that the law even of England—which they so much hated—allows all that. It appeared that Mr. Muir also lent a copy of Thomas Paine's "Rights of Man" to a mechanic who asked the loan as a favor. For these offences he was indicted for sedition, charged with instituting "a Society for Reform," and with an endeavor "to represent the government of this country as oppressive and tyrannical, and the legislative body as venal and corrupt." It was alleged in the indictment that he complained of the government of England as "costly," the monarchy as "useless, cumbersome, and expensive," that he advised persons to read Paine's Rights of Man, and circulated copies of a periodical called "thePatriot," which complained of the grievances of the people. On trial he was treated with great insolence and harshness, reprimanded, interrupted, and insulted by the agents of the government—the court. An association of men had offered a reward of five guineas for the discovery of any person who circulated the writings of Thomas Paine. Five of the fifteen jurors were members of that association,—and in Scotland a bare majority of the jurors convicts. Mr. Muir defended himself, and that ably. Lord Justice Clark charged his packed jury:—