and his Maker. He has a right, an inalienable and absolute right, to
worship God according to the dictates of his own conscience. For this he
alone must answer, and he is entirely free from all human restraint to
think and act for himself.
"But this is not the case when his acts affect the rights of others.
Society has a claim upon all its citizens. General rules have been
adopted in the form of laws, for the protection of the rights of persons
and things. These laws lie at the foundation of the social compact, and
their observance is essential to the maintenance of civilization. In
these matters the law, and not conscience, constitutes the rule of
action You are sworn to decide this case according to the law and
testimony; and you become unfaithful to the solemn injunctions you have
taken upon yourselves, when you yield to an influence which you call
conscience, that places you above the law and the testimony.
"Such a rule can only apply to individuals; and when assumed as a basis
of action on the rights of others, it is utterly destructive of all law.
What may be deemed a conscientious act by one individual, may be held
criminal by another. In view of one, the act is meritorious; in the view
of the other, it should be punished as a crime. And each has the same
right, acting under the dictates of his conscience, to carry out his own
view. This would overturn the basis of society. We must stand by the
law. We have sworn to maintain it. It is expected that the citizens of
the free States should be opposed to slavery. But with the abstract
principles of slavery we have nothing to do. As a political question
there could be no difference of opinion among us on the subject. But our
duty is found in the Constitution of the Union, as construed by the
Supreme Court. The fugitives from labor we are bound, by the highest
obligations, to deliver up on claim of the master being made; and there
is no State power which can release the slave from the legal custody of
his master.
"In regard to the arrest of fugitives from labor, the law does not
impose active duties on our citizens generally. They are not prohibited
from exercising the ordinary charities of life towards the fugitive. To
secrete him or convey him from the reach of his master, or to rescue him
when in legal custody, is forbidden; and for doing this a liability is
incurred. This gives to no one a just ground of complaint. He has only
to refrain from an express violation of the law, which operates to the
injury of his neighbor."
He seems to think the right to hold slaves as much a natural right as
the absolute right to worship God according to the "dictates of
conscience." One man has an unalienable right to liberty, other men an
unalienable right to alienate and take it from him!
Here is something in a different spirit from a Boston newspaper.
"THE FUGITIVE SLAVE BILL.
"This infamous bill has finally passed both branches of
Congress.[A] My opinion on this subject may have little
weight with those who voted for it, but may help sustain the
sinking spirit of some poor disconsolate one, who, having
fled from the land of oppressors, is anxiously looking to
see if there is any one who will give him a cheering look,
or a kind reception, or who dares to give him a crust of
bread, or a cup of water, and help him on his way.
"Allow me to say to such an one, that if pursued by the
merciless slaveholder, and every other door in Boston is
shut against him, there is a door that will be open at No. 2
Beach street, and that the fear of fines and imprisonment
will be ineffectual when the pursuer shall demand his
victim. If he enters before the fleeing captive is safe, it
will be at his peril. I am opposed to war, and all the
spirit of war; even to all preparations for what is called
self-defence in times of peace; yet I should resist the
pursuer, and not allow him to enter my dwelling until he was
able to tread me under his feet. I will not trample upon any
law, either of my own State, or of the nation, that does not
conflict with my conscientious duty to my God; but Jesus has
commanded, saying, 'All things whatsoever ye would that men
should do to you, do ye even so to them.'
"If, for no crime, I had been taken and sold, and deprived
of all the rights of my manhood, and degraded to the rank of
a beast of burden; not only deprived of the opportunity to
labor for the support of my wife and children, but even
deprived of their kind sympathy and companionship, whenever
the interest or will of my oppressors should require it; and
I should, at the peril of my life, flee from my oppressors,
and they should pursue me to the dwelling of some poor
disciple of Jesus, it may be that of a colored man, and I
should beg of him to protect me, and help me to escape from
the pursuer's grasp, should I not hope, if he was a
Christian, he would give me bread and water, and help me on
my way, regardless of the fines and imprisonment that such a
kind act might render him liable to? Could I expect to meet
the approbation of my Lord, if I did not do as much for the
fleeing slave? Can there be a Christian, in this land of the
Pilgrims, who will not do it, and besides, do all in his
power to prevent any one of those Senators or
Representatives in Congress who voted for that infamous bill
from ever again misrepresenting any portion of the friends
of freedom, in Boston or elsewhere? It is said, this is a
law of the land, and must be obeyed: to such I would say,
'Whether it be right in the sight of God to hearken unto men
more than unto God, judge ye,'
"I prefer to obey God, if in so doing I must break the laws
of men and be punished, rather than violate the laws of God
and obey the laws of men, to escape fines and imprisonments,
or even death.
"Boston, Sept. 23, 1850.
T. GILBERT."
Here is yet more:
"THE FUGITIVE SLAVE BILL.
"MESSRS. EDITORS:--The bold and manly avowal of your
correspondent, Mr. T. Gilbert, in last evening's Traveller,
in commenting upon what he very justly denominates the
'infamous fugitive slave bill,' is but the very echoing of
thousands of hearts equally true to the cause of freedom,
and who seek the elevation of the down-trodden sons and
daughters of American slavery. That gentleman, acting upon
the dictates of an enlightened patriotism, and in deep
sympathy with the fleeing captive, has the courage to avow
his determination to throw wide open his door, and offers to
make his house--even though he should stand alone among his
fellow-citizens--an asylum to the fugitive slave, in his
retreat from the prison-house of bondage. The paramount
claims which he awards to the Divine law over that which is
but human, and therefore necessarily imperfect, commend his
spirited letter to the consideration of all those that have
in any way aided in the passage of a bill at variance with
the first principles of civil freedom, and in direct
hostility to the instruction of that great Teacher who hath
commanded us to 'Do unto others as we would that they should
do unto us.' That the determination of your correspondent
may be true and unfaltering, is the hearty prayer of one, at
least, of his fellow-citizens, who is ready at all times to
cooperate in making an asylum for the fugitive slave, even
though bonds and imprisonments should prove the penalty.
GEORGE W. CARNES.
"Boston, Sept. 26, 1850."
Here follow some characteristic remarks on the terror which the
fugitives here in Boston feel in apprehension of being torn from their
families and their freedom.
"THE FUGITIVE SLAVE LAW.
"The colored people had a grand time last evening, at Zion's Chapel in
Church street. Their object was to denounce the fugitive slave law; and
this was done with hearty good-will, or, we should say, malediction.
"The steam would have been well up, without any extraneous elements of
excitement; but what added a special interest to the occasion, and
raised the temperament to blood-heat, was the announcement, made by Mr.
Downing, that the wife of James Hamlet (the fugitive slave who was
returned to his owner in Baltimore, a few days since, under a process of
law), had died yesterday, of grief and convulsions.
"This filled the measure of indignation which burned in the bosoms of
all present, against a law which, besides its other abominations, could
produce such fatal effects. In the fever of the moment, a contribution
was called for, to defray the expense of her funeral, and about twenty
dollars was collected.
"Shortly after, information was received that it was all a mistake about
her dying of convulsions, or in any other way; and that she was as well
as ever. This was a damper upon the enthusiasm of the occasion, but the
money was already collected, and seeing it could not be applied just now
to defray her funeral expenses, it was very properly decided to apply it
to her living expenses. The meeting adjourned.
"Mrs. Hamlet was in our office yesterday, accompanied by her mother and
a colored man. She appeared to be in good health (though of course
distressed at the misfortune of her husband), and we hope she will live
a thousand years. She certainly shall, if his return will have that
effect."--_N. Y. Journal of Commerce._
I print these passages, hoping that some hundred years hence they may be
found in some old library, and valued as monuments of the state of
Christianity in the free States in the year 1850.
[A] I call this bill _infamous_, because by it the man or
woman who is charged with being a slave is deprived of all
the means of self-defence allowed to those who are charged
with crimes, and to be delivered up summarily, without the
right of trial by jury, or any other proper means of proving
the charge groundless. Is it a worse crime to be a slave than
a thief or a murderer?
[14] THE FUNCTION OF THE JURY.
There are two theories of the function of the jury in criminal trials.
One I will call the theory of the Government; the other the theory of
the People. The first has of late been insisted on in certain courts,
and laid down by some judges in their charges to the jury. The second
lies, perhaps dimly, in the consciousness of the people, and may be
gathered from the conduct of juries in trials where the judges' law
would do obvious injustice to the prisoner.
I. According to the theory of the Government. The judge is to settle the
law for the jury. This involves two things:
1. He is to declare the law denouncing punishment on the alleged crime.
2. To declare what constitutes the crime. Then the jury are only to
determine whether the prisoner did the deed which the judge says
constitutes the crime. He, exclusively, is to decide what is the law,
and what deed constitutes the crime; they only to decide if the prisoner
did the deed. For example, to take a case which has not happened yet, to
my knowledge: John Doe is accused of having eaten a Medford cracker; and
thereupon, by direction of the Government, has been indicted by a grand
jury for the capital offence of treason, and is brought before a
traverse jury for trial. The judge tells the jury, 1. That eating a
Medford cracker constitutes the crime of treason. 2. That there is a law
denouncing death on that crime. Then the jury are to hearken to the
evidence, and if it is proved to their satisfaction that John Doe ate
the Medford cracker, they are to return a verdict of guilty. They are
only to judge of the matter of fact, and take the law on the judge's
authority.
II. According to the theory of the People, in order to render their
verdict, the jury are to determine three things:
1. Did the man do the deed alleged?
2. If so, Is there a legal and constitutional statute denouncing
punishment upon the crime? Here the question is twofold: (_a_) as to the
deed which constitutes the crime, and (_b_) as to the statute which
denounces the crime.
3. If all this is settled affirmatively, then, Shall this man suffer the
punishment thus legally and constitutionally denounced?
For example: John Doe is accused of having eaten a Medford cracker, is
indicted for treason, and brought to trial; the judge charges as above.
Then the jury are to determine:
1. Did John Doe eat the Medford cracker in the manner alleged?
2. If so: (_a_) Does that deed constitute the crime of treason? and
(_b_) Is there a legal and constitutional statute denouncing the
punishment of death on that crime?
3. If so likewise, Shall John Doe suffer the punishment of death?
The first question, as to the fact, they are to settle by the evidence
presented in open court, according to the usual forms, and before the
face of the prisoner; the testimony of each witness forms one element of
that evidence. The jury alone are to determine whether the testimony of
the witnesses proves the fact.
The second question, (_a_) as to the deed which constitutes the crime,
and (_b_) as to the law which denounces the crime, they are to settle by
evidence; the testimony of the Judge, of the States' Attorney, of the
Prisoner's counsel, each forms an element of that evidence. The jury
alone are to determine whether that testimony proves that the deed
constitutes the crime, and that there is a law denouncing death against
it; and the jury are to remember that the judge and the attorney who are
the creatures of the Government, and often paid to serve its passions,
may be, and often have been, quite as partial, quite as unjust, as the
prisoner's counsel.
The third question, as to punishing the prisoner, after the other
questions are decided against him, is to be settled solely by the mind
and conscience of the jury. If they know that John Doe did eat the
Medford cracker; that the deed legally constitutes the crime of treason,
and that there is a legal and constitutional statute denouncing death on
that crime, they are still to determine, on their oath as jurors, on
their manhood as men, Whether John Doe shall suffer the punishment of
death. They are jurors to do justice, not injustice; what they think is
justice, not what they think injustice.
The Government theory, though often laid down in the charge, is seldom
if ever practically carried out by a judge in its full extent. For he
does not declare on his own authority what is the law and what
constitutes the crime, but gives the statutes, precedents, decisions and
the like; clearly implying by this very course that the jury are not to
take his authority barely, but his reasons if reasonable.
In the majority of cases, the statute and the ruling of the court come
as near to real justice as the opinion of the jury does; then if they
are satisfied that the prisoner did the deed alleged, they return a
verdict of guilty with a clear conscience, and subject the man to what
they deem a just punishment for an unjust act. Their conduct then seems
to confirm the Government theory of the jurors' function. Lawyers and
others sometimes reason exclusively from such cases, and conclude such
is the true and actual theory thereof. But when a case occurs, wherein
the ruling of the judge appears wrong to the jury; when he declares
legal and constitutional what they think is not so; when he declares
that a trifling offence constitutes a great crime; when the statute is
manifestly unjust, forbidding what is not wrong, or when the punishment
denounced for a real wrong is excessive, or any punishment is provided
for a deed not wrong, though there is no doubt of the facts, the jury
will not convict. Sometimes they will acquit the prisoner; sometimes
fail to agree. The history of criminal trials in England and America
proves this. In such cases the jury are not false to their function and
jurors' oath, but faithful to both, for the jurors are the
"country"--the justice and humanity of men.
Suppose some one should invent a machine to be used in criminal trials
for determining the testimony given in court. Let me call it a
Martyrion. This instrument receives the evidence and determines and
reports the fact that the prisoner did, or did not, do the deed alleged.
According to the government theory, the Martyrion would perfectly
perform all the functions of the jury in a criminal case; but would any
community substitute the machine for the jury of "twelve good men and
true?" If the jury is to be merely the judge's machine, it had better be
of iron and gutta-percha than of human beings.
In Philadelphia, some years ago, a man went deliberately and shot a
person who had seduced his sister under circumstances of great atrocity.
He was indicted for wilful murder. There was no doubt as to the fact,
none as to the law, none as to the deed which constituted that crime.
The jury returned, "Not guilty"--and were justified in their verdict. In
1850, in New Jersey, a man seduced the wife of another, under
circumstances even more atrocious. The husband, in open day, coolly and
deliberately shot the seducer; was tried for wilful murder. Here, too,
there was no doubt of the fact, of the law, or the deed which
constituted the crime of murder; but the jury, perfectly in accordance
with their official function, returned "Not guilty."
The case of William Penn in 1670, who was tried under the Conventicle
Act, is well known. The conduct of many English juries who would not
condemn a fellow-creature to death for stealing a few pounds of money,
is also well known, and shows the value of this form of trial to protect
a man from a wicked law. I think most men will declare the verdict of
"Not guilty" in the case of J. P. Zenger, tried for high treason in New
York in 1735, a righteous judgment, made in strict accordance with the
official function of the jurors; but it was plainly contrary to the
evidence as well as to the ruling of the court.
See Mr. Parker's Defence, p. 76, _et seq._ for further remarks on the
Function of the Jury (Boston, 1855).
[15] So it appeared in September, 1851; but since then the whig party
has vindicated its claim to the same bad eminence as the democratic
party.
[16] The person referred to fled away from Boston, and in one of the
British provinces found the protection for his unalienable rights, which
could not be allowed him in New England.
[17] This refers to a speech of Mr. Webster, occasioned by the passage
of the fugitive slave law.
V.
THE STATE OF THE NATION, CONSIDERED IN A SERMON FOR THANKSGIVING
DAY.--PREACHED AT THE MELODEON, NOVEMBER 28, 1850.
PROVERBS XIV. 34.
Righteousness exalteth a nation, but sin is a reproach to any people.
We come together to-day, by the Governor's proclamation, to give thanks
to God for our welfare, not merely for our happiness as individuals or
as families, but for our welfare as a people. How can we better improve
this opportunity, than by looking a little into the condition of the
people? And accordingly I invite your attention to a Sermon of the State
of this Nation. I shall try to speak of the Condition of the nation
itself, then of the Causes of that condition, and, in the third place,
of the Dangers that threaten, or are alleged to threaten, the nation.
* * * * *
First, of our Condition. Look about you in Boston. Here are a hundred
and forty thousand souls, living in peace and in comparative prosperity.
I think, without doing injustice to the other side of the water, there
is no city in the old world, of this population, with so much
intelligence, activity, morality, order, comfort, and general welfare,
and, at the same time, with so little of the opposite of all these. I
know the faults of Boston, and I think I would not disguise them; the
poverty, unnatural poverty, which shivers in the cellar; the unnatural
wealth which bloats in the parlor; the sin which is hid in the corners
of the jail; and the more dangerous sin which sets up Christianity for a
pretence; the sophistry which lightens in the newspapers, and thunders
in the pulpit:--I know all these things, and do not pretend to disguise
them; and still I think no city of the old world, of the same
population, has so much which good men prize, and so little which good
men deplore.
See the increase of material wealth; the buildings for trade and for
homes; the shops and ships. This year Boston will add to her possessions
some ten or twenty millions of dollars, honestly and earnestly got.
Observe the neatness of the streets, the industry of the inhabitants,
their activity of mind, the orderliness of the people, the signs of
comfort. Then consider the charities of Boston; those limited to our own
border, and those which extend further, those beautiful charities which
encompass the earth with their sweet influence. Look at the schools, a
monument of which the city may well be proud, in spite of their defects.
But Boston, though we proudly call it the Athens of America, is not the
pleasantest thing in New England to look at; it is the part of
Massachusetts which I like the least to look at, spite of its
excellence. Look further, at the whole of Massachusetts, and you see a
fairer spectacle. There is less wealth at Provincetown, in proportion to
the numbers, but there is less want; there is more comfort; property is
more evenly and equally distributed there than here, and the welfare of
a country never so much depends upon the amount of its wealth, as on the
mode in which its wealth is distributed. In the State, there are about
one hundred and fifty thousand families--some nine hundred and
seventy-five thousand persons, living with a degree of comfort, which, I
think, is not anywhere enjoyed by such a population in the old world.
They are mainly industrious, sober, intelligent, and moral. Every thing
thrives; agriculture, manufactures, commerce. "The carpenter encourages
the goldsmith; he that smites the anvil, him that smootheth with the
hammer." Look at the farms, where intelligent labor wins bread and
beauty both, out of the sterile soil and climate not over-indulgent.
Behold the shops all over the State; the small shops where the shoemaker
holds his work in his lap, and draws his thread by his own strong
muscles; and the large shops where machines, animate with human
intelligence, hold, with iron grasp, their costlier work in their lap,
and spin out the delicate staple of Sea Island cotton. Look at all this;
it is a pleasant sight. Look at our hundreds of villages, by river,
mountain, and sea; behold the comfortable homes, the people well fed,
well clad, well instructed. Look at the school-houses, the colleges of
the people; at the higher seminaries of learning; at the poor man's real
college further back in the interior, where the mechanic's and farmer's
son gets his education, often a poor one, still something to be proud
of. Look at the churches, where, every Sunday, the best words of Hebrew
and of Christian saints are read out of this Book, and all men are
asked, once in the week, to remember they have a Father in heaven, a
faith to swear by, and a heaven to live for, and a conscience to keep. I
know the faults of these churches. I am not in the habit of excusing
them; still I know their excellence, and I will not be the last man to
acknowledge that. Look at the roads of earth and iron which join
villages together, and make the State a whole. Follow the fisherman from
his rocky harbor at Cape Ann; follow the mariner in his voyage round the
world of waters; see the industry, the intelligence, and the comfort of
the people. I think Massachusetts is a State to be thankful for. There
are faults in her institutions and in her laws, that need change very
much. In her form of society, in her schools, in her colleges, there is
much which clamors loudly for alteration,--very much in her churches to
be christianized. These changes are going quietly forward, and will in
time be brought about.
I love to look on this State, its material prosperity, its increase in
riches, its intelligence and industry, and the beautiful results that
are seen all about us to-day. I love to look on the face of the people,
in halls and churches, in markets and factories; to think of our great
ideas; of the institutions which have come of them; of our schools and
colleges, and all the institutions for making men wiser and better; to
think of the noble men we have in the midst of us, in every walk of
life, who eat an honest bread, who love mankind, and love God, who have
consciences they mean to keep, and souls which they intend to save.