of the secondary safeguards of society. It has served to defend the
community against bad citizens, and the citizens against an evil
establishment,--bad institutions, bad constitutions, bad statutes;
against evil officers, bad rulers, bad judges, bad sheriffs. If the
community has much to fear from bad citizens, here is the offensive
armor, and the jury do not bear the sword in vain. If its citizens have
much to fear from a wicked government, oppressive, grasping, tyrannical,
desirous of pretending law where there is none, declaring "ship-money"
and other enormities constitutional, or pressing a legal statute beyond
justice, making it treason to tell of the wickedness of officers,--here
is the defensive armor, and the jury do not bear in vain the shield of
the citizen. Sometimes the citizens have more to fear from the
government than from all other foes. Louis XIV. was a great robber, and
plundered and murdered more of his subjects than all the other alleged
felons in the sixteen millions of Frenchmen. The honest burghers of
Paris had more to fear from the monarch in the Tuileries than from the
murderer in the Faubourg St. Antoine, or the cut-purse in the Rue St.
Jacob. Charles I. was a more dangerous enemy to our fathers in England
and America than all the other thieves and murderers in the realm. What
were all the Indians in New England, for peril to its Christian
citizens, compared to Charles II. and his wicked brother? What was a
foot-pad to Henry VIII.? He plundered a province, while the robber only
picked a pocket.
The trial by jury has done manly service. It was one of the first
bulwarks of human society, then barbarous and feeble, thrown up by the
Germanic tribe which loved order, but loved justice too. It is a line of
circumvallation against the loose, unorganized wickedness of the private
ruffian; a line of contravallation also against the organized wickedness
of the public government. It began before there were any regular courts
or written laws; and, ever since, it has done great service when
corrupt men in high places called a little offence "treason"; when
corrupt judges sought to crush down the people underneath oppressive
laws to advance themselves; and when corrupt witnesses were ready to
"enlarge" their testimony so as to "dispatch" the men accused; yea, to
swear black was black, and then, when the case seemed to require it,
swear white was black. Any man who reads the history of England under
the worst of kings, the worst of ministers, the worst of judges, and
with the worst of witnesses, and compares it with other nations, will
see the value of the trial by jury as a safeguard of the people. The
bloody Mary had to punish the jurors for their verdict of acquittal,
before she could accomplish her purposes of shame. George III., wishing
to collect a revenue in the American colonies, without their consent or
any constitutional law, found the jury an obstacle he could not pass
over. Attorneys might try John Hancock for smuggling in his "sloop
Liberty:" no jury would convict. The tea, a vehicle of unjust taxation,
went floating out of Boston Bay in a most illegal style. No attempt was
made to try the offenders; the magistrates knew there was a jury who
would not convict men for resisting a wicked law. Men must be taken
"over seas for trial" by a jury of their enemies, before the wicked laws
of a wicked ministry could be brought upon the heads of the resolute men
of America.
It is of great importance to keep this institution pure; to preserve its
spirit, with such expansion as the advance of mankind requires.
Otherwise, the laws may be good, the constitutions good, institutions
good, the disposition of the people good; but, with a wicked minister in
the cabinet, a wicked judge on the bench, a wicked attorney at the bar,
and a wicked witness to forswear himself on the stand,--and all these
can easily be had; you can purchase your wicked witnesses; nay,
sometimes one will volunteer and "enlarge his testimony,"--a man's life
and liberty are not safe for a moment. The administration may grasp any
man at will. The minister represents the government; the judge, the
attorney, all represent the government. It has often happened that all
these had something to gain by punishing unjustly some noble man who
opposed their tyranny, and they used their official power to pervert
justice and ruin the State, that they might exalt themselves. The jury
does not represent the government, but "the country;" that is, the
justice, the humanity, the mercy of mankind. This is its great value.
Have we the third safeguard, Righteous Officers? I believe no nation
ever started with nobler officers than we chose at first. But I think
there has been some little change from Washington down through the
Tylers and the Polks to the present administration. John Adams, in
coming to the presidency, found his son in a high office, and asked his
predecessor if it were fit for the President to retain his own son in
office. Washington replied, It would be wrong for you to appoint him;
but I hope he will not be discharged from office, and so the country be
deprived of his valuable services, merely "because he is your son!" What
a satire is this on the conduct of men in power at this day! We have had
three "second General Washingtons" in the presidential chair since 1829;
two new ones are now getting ready, "standing like greyhounds in the
slips, straining upon the start," for that bad eminence. These three
past and two future "Washingtons" have never displayed any very
remarkable family likeness to the original--who left no descendant--in
this particular.[35] I pass over the general conduct of our executive
and judicial officers, which does not seem to differ much from that of
similar functionaries in England, in France, in Italy, Austria, Turkey,
and Spain. But I must speak of some special things in the conduct of
some of these persons,--things which ought to be looked at on such a
day as this, and in the light of religion. Attempts have lately been
made in this city to destroy the juror's power to protect the citizen
from the injustice of government,--attempts to break down this safeguard
of individual liberty. We have seen a judge charge the grand jury, that,
in case of conflict between the law of God and the statutes made by men,
the people must "obey both." Then we have seen an attempt made by the
government to get a partial jury, who should not represent the country,
but should have prejudices against the prisoner at the bar. We have seen
a man selected as foreman of the jury who had previously, and before
witnesses, declared that all the persons engaged in the case which was
to come before him, "ought to be hung." We have seen a man expelled from
the jury, after he had taken the juror's oath, because he declared that
he had "a general sympathy with the down-trodden and oppressed here and
everywhere," and so did not seem likely to "dispatch" the prisoner, as
the government desired. This is not all: the judge questions the jurors
before their oath, and refuses to allow any one to be impanelled who
doubts the constitutionality of the fugitive slave law. Even this is not
the end: he charges the jury thus selected, packed, picked, and
winnowed, that they are to take the law as he lays it down; that they
are only judges of the fact, he exclusively of the law; and, if they
find that the prisoner did the deed alleged, then they must return him
"Guilty" of the offence charged.
I am no lawyer: I shall not speak here with reference to usages and
precedents of the past, only with an eye to the consequences for the
future. If the court can thus select a jury to suit itself, mere
creatures of its own, what is the use of a jury to try the fact? See the
consequences of this decision, that no man shall serve as juror who
doubts the constitutionality of a law, and that the jurors are not
judges of the law itself, as well as the fact. Let me suppose some cases
which may happen. The Constitution of the United States provides that
Congress shall not prohibit the free exercise of religion. Suppose that
Congress should pass a law to punish any man with death who should pray
to the "Father, Son, and Holy Ghost." The government wishes to punish an
obnoxious orthodox minister for violating this "form of law." It is
clearly unjust; but the judge charges the grand jury they are to "obey
both" the laws of God and the statutes of men. The grand jury indict the
man. He is brought for trial. The law is obviously unconstitutional; but
the judge expels from the jury all who think the law is
unconstitutional. He selects the personal enemies of the accused, and
finds twelve men foolish enough or wicked enough to believe it is
constitutional to do what the Constitution declares must not be done;
and then proceeds to trial, selecting for foreman the man who has said,
"All men that thus pray ought to be hung!" What is the value of your
Constitution? The jury might convict, the judge sentence, the President
issue his warrant, and the man be hanged in twenty-four hours, for doing
a deed which the Constitution itself allows, and Christendom daily
practises, and the convictions of two hundred million men require!
It is alleged the jury must not judge of the law, but only of the fact.
See the consequences of this principle in several cases. The Secretary
of State has declared the rescuing of Shadrach was "treason," and, of
course, punishable with death. Suppose the court had charged the jury,
that to rescue a man out of the hands of an incompetent officer--an
offence which in Boston has sometimes been punished with a fine of five
dollars--was "levying war" against the United States, and they were only
to find if the prisoner did the deed; and, if so, return a verdict of
guilty. Suppose the jury are wicked enough to accept his charge, where
is the protection of the citizen? The government may say, to smuggle
goods into Boston harbor is "levying war" and hang a man for treason who
brings on shore an ounce of camphor in his pocket without paying duties!
Is not the jury, in such a case, to judge what the law makes
treason?--to decide for itself?
There was once a law making it felony without benefit of clergy to read
the Bible in the English language. Suppose the government, wishing to
make away with an obnoxious man, should get him indicted next term for
this offence, and the judge should declare that the old law is still in
force. Is the jury not to judge whether we live under the bloody Mary,
or the constitution of Massachusetts?--whether what was once law is so
now? If not, then the laws of King Darius or King Pharaoh may be revived
whenever Judge Hategood sees fit, and Faithful must hang for it.[36]
Suppose the judge makes a law himself, declaring that, if any one speaks
against the justice of the court, he shall be whipped with forty stripes
save one, and gets a man indicted under it and brought to trial--is the
jury not to judge if there be such a law? Then we might as well give up
all legislation, and leave all to the "discretion of the court."
A judge of the United States Court was once displaced on account of
mental imbecility. Was Judge Simpleton to determine what was law, what
not, for a jury of intelligent men?
Another judge, not long ago, in Boston, in his place in court, gave an
opinion in a most important affair, and was drunk when he gave it. I do
not mean he was horizontally drunk, but only so that his friends feared
"he would break down in court, and expose himself." Was the opinion of a
drunken judge to be taken for law by sober men?
Suppose the judge is not a simpleton nor a drunkard, but is only an
ordinary lawyer and a political partisan, and appointed to his office
because he is a fawning sycophant, and will interpret the law to suit
the ambition of the government--a thing that has happened in this city.
Is he to lay down the law for the jurors who aim only to live in
honorable morality, to hurt no one, and give every man his due?
Suppose the attorneys at the bar know the law better than the attorney
on the bench,--a thing that daily happens,--are not the jurors to
decide for themselves?
I have chosen fictitious cases to try the principle. Extreme cases make
shipwreck of a wicked law, but are favoring winds to bring every just
statute into its happy harbor at the last. Will you say we are not
likely to suffer from such usurpation? You know what we have suffered
within three months past. God only knows what is to come. But no man is
ever to seek for a stick if he wishes to beat a dog, or for a cross if
he would murder his Saviour. The only way to preserve liberty is by
eternal vigilance: we must be jealous of every president, every
minister, every judge, every officer, from a king to the meanest
commissioner he appoints to kidnap men. You have seen the attempts made
to sap and undermine one of the most valuable safeguards of our social
welfare,--seen that it excited very little attention; and I wish to warn
you of the danger of a false principle. I have waited for this day to
speak on this theme. Executive tyranny, with soldiers at its command,
must needs be open in its deeds of shame. It may waste the money of the
public which cleaves to the suspected hands of its officers: it is not
so easy to get the necks of those it hates; for we have no star-chamber
of democracy, and here the executive has not many soldiers at command,
must ask before it can get them. It did ask, and got "No" for answer.
Legislative tyranny must needs be public, and is easily seen. But
judicial tyranny is secret, subtle, unseen in its action; and all
experience shows it is one of the most dangerous forms of tyranny. A
corrupt judge poisons the wells of human society.[37] Scroggs and
Jeffries are names deservedly hated by mankind, and there are some
American names likely to be added to them. The traditionary respect
entertained here for an office which has been graced by some of the
noblest men in the land, doubles our danger.
But an attack is made on another safeguard of society, yet more
important. We have been told that there is no law higher than a human
statute, no law of God above an act of the American Congress. You know
how this doctrine of the supremacy of the lower law has been taught in
the high places of the State, in the high places of the church, and in
the low places of the public press. You know with what sneers men have
been assailed who appealed to conscience, to religion, and said, "The
law of God is supreme; above all the enactments of mortal men." You have
been witness to attempts to howl down the justice of the Almighty. We
have had declamation and preaching against the law of God. It is said
the French Assembly, some fifty or sixty years ago, voted that there
should be no public worship of God; that there was no God to worship;
but it was left for politicians and preachers of America, in our time,
to declare that there is no law above the caprice of mortal men. Did the
French "philosophers" decree speculative atheism? the American "wise
men" put it in practice. They deny the function of God. "He has nothing
to do with mankind." This doctrine is one of the foulest ever taught,
and tends directly to debauch the conscience of the people. What if
there were no law higher than an act of Parliament? what would become of
the Parliament itself? There is such a thing conceivable as personal,
speculative atheism. I think it is a very rare thing. I have never known
an atheist: for, with all about us speaking of God; all within us
speaking of him; every telescope revealing the infinite Mind in nebulae
resolved to groups of systems of suns; every microscope revealing the
infinite Father, yea, Mother of the world, in a drop of water, a grain
of perishing wood, or an atom of stone; every little pendulum revealing
his unchanging law on a small scale; and this whole group of solar
systems, in its slow and solemn swing through heavenly space, disclosing
the same law on a scale which only genius at first can comprehend,--it
is not easy to arrive at personal, speculative atheism. It would be a
dreadful thing, the stark denial of a God. To say there is no infinite
Mind in finite matter, no order in the universe, in providence only a
fate, no God for all, no Father for any, only an inextinguishable
nothing that fills the desert and illimitable ether of space and time,
the whence and whither of all that are,--such a belief is conceivable;
but I do not believe that there is a single atheist living on the whole
round world. There is no general danger of personal, speculative
atheism. When M. Lalande declared that he saw no God through his
telescope, though he meant not to deny the real God of nature, the world
rang with indignation at an astronomer undevout and mad. But practical,
political atheism has become a common thing in America, in New England.
This is not a denial of the essence of God and his being, but of his
function as Supreme Ruler of the church, of the State, of the people, of
the universe. Of that there is danger. The devil of ambition tempts the
great man to it; the devil of covetousness, the little man. Both strike
hands, and say, "There is no higher law;" and low men lift up their mean
foreheads in the pulpits of America and say, "It is the voice of a God,
and not of a man. There is no higher law." The greatest understanding of
this land, with haughty scorn, has lately said, "The North Mountain is
very high; the Blue Ridge, higher still; the Alleghanies higher than
either; and yet this 'higher law' ranges further than an eagle's flight
above the highest peaks of the Alleghanies."[38] The impious taunt was
received with "laughter" by men who have long acted on the maxim that
there is no law of God, and whose State is impoverished by the attempt
to tread His law under foot. I know men in America have looked so long
at political economy that they have forgotten political morality, and
seem to think politics only national housekeeping, and he the best ruler
who buys cheapest and sells dearest. But I confess I am amazed when
statesmen forget the lessons of those great men that have gone before
us, and built up the social state, whose "deep foundations have been
laid with prayer." What! is there no law above the North Mountain; above
the Blue Ridge; higher than the Alleghanies? Why, the old Hebrew poet
told us of One "which removeth the mountains, and they know not; which
overturneth them in his anger; which alone spreadeth out the heavens,
and treadeth upon the waves of the sea. Lo! he goeth by me, and I see
him not; he passeth on also, but I perceive him not." Yes, there is
One--his law "an eagle's flight above the Alleghanies"--who humbleth
himself to behold the things that are in heaven, whose strong hand
setteth fast the mountains; yea, One who hath weighed the mountains in
scales; before whom all nations are as a very little thing. Yes, Father
in heaven! before the mountains were brought forth, or ever thou hadst
formed the earth and the world, even from everlasting to everlasting,
thou art God. Yea, thou hast been our dwelling-place in all generations.
Thy name alone is excellent; thy glory above the earth and heaven!
No higher law for States than the poor statutes they enact!
"Among the assemblies of the great
A greater Ruler takes his seat;
The God of heaven as Judge surveys
These 'gods of earth' and all their ways:--
'Why will you frame oppressive laws?
Or why support the unrighteous cause?
When will you once defend the poor,
That foes may vex the saints no more?'
They know not, Lord, nor will they know;
Dark are the ways in which they go;
Their name of 'earthly gods' is vain,
For they shall fall and die like men."
It would be a great calamity for this nation to lose all of its mighty
riches, and have nothing left but the soil we stand on. But, in seven or
eight generations, it would all be restored again; for all the wealth of
America has been won in less time. We are not two hundred and fifty
years from Jamestown and Plymouth. It would be a great misfortune to
lose all the foremost families of the nation. But England lost hers in
the War of the Roses; France, in her Revolution. Nature bore great men
anew, and fresh families sprung up as noble as the old. But, if this
generation in America could believe that there was no law of God for you
and me to keep,--say the acts of Congress what they might say,--no law
to tame the ambition of men of mountain greatness, and curb the eagle's
flight of human tyranny, that would be a calamity which the nation would
never recover from. No! then religion would die out; affection fall
dead; conscience would perish; intellect give up the ghost, and be no
more. No law higher than human will! No watchmaker can make a long
pendulum vibrate so quick as a short. In this very body there is that
law. I wake and watch and will; my private caprice turns my hand, now
here, now there. But who controls my breath? Who bids this heart beat
all day long, and all the night, sleep I or wake? Whose subtle law holds
together these particles of flesh, of blood, and bone in marvellous
vitality? Who gives this eye its power to see, and opens wide the portal
of the ear? and who enchants, with most mysterious life, this wondrous
commonwealth of dust I call myself? It is the same Hand whose law is
"higher than the Blue Ridge," an "eagle's flight above the Alleghanies."
Who rules the State, and, out of a few stragglers that fled here to New
England for conscience sake, built up this mighty, wealthy State? Was
it Carver and Winthrop who did all this; Standish and Saltonstall? Was
it the cunning craftiness of mightiest men that consciously, well
knowing what they did, laid the foundations of our New England State and
our New England Church? Why, the boys at school know better. It was the
eternal God whose higher law the Pilgrim and the Puritan essayed to
keep, not knowing whereunto the thing would grow. Shall the fool say in
his heart there is no God? He cannot make a hair grow on his head but by
the eternal law of his Father in heaven. Will the politician say there
is no law of God for States? Ask the sorrowing world; let Austria and
Hungary make reply. Nay, ask the Southern States of America to show us
their rapid increase in riches, in civilization; to show us their
schools and their scholars, their literature, their science, and their
art! No law of God for States! It is writ on the iron leaf of destiny,
"Righteousness exalteth a nation, but sin is a curse to any people." Let
the wicked hand of the South join with the Northern wicked hand,
iniquity shall not prosper. But the eye of the wicked shall fail; they
shall not escape; their hope shall be as giving up the ghost, because
their tongue and their doings are against the Lord, to provoke the eyes
of his glory. Their root shall be as rottenness, and their blossom shall
go up as dust, if they cast away the law of the Lord, and despise the
word of the Holy One.
In America the people are strongly attached to the institutions,
constitutions, and statutes of the land. On the whole, they are just
establishments. If not, we made them ourselves, and can make them better
when we will. The execution of laws is also popular. Nowhere in the
world is there a people so orderly, so much attached to law, as the
people of these Northern States. But one law is an exception. The people
of the North hate the fugitive slave law, as they have never hated any
law since the stamp act. I know there are men in the Northern States who
like it,--who would have invented slavery, had it not existed long
before. But the mass of the Northern people hate this law, because it is
hostile to the purpose of all just human law, hostile to the purpose of
society, hostile to the purpose of individual life; because it is
hostile to the law of God,--bids the wrong, forbids the right. We
disobey that, for the same reason that we keep other laws: because we
reverence the law of God. Why should we keep that odious law which makes
us hated wherever justice is loved? Because we must sometimes do a
disagreeable deed to accomplish an agreeable purpose? The purpose of
that law is to enable three hundred thousand slaveholders to retake on
our soil the men they once stole on other soil! Most of the city
churches of the North seem to think that is a good thing. Very well: is
it worth while for fifteen million freemen to transgress the plainest
of natural laws, the most obvious instincts of the human heart, and the
plainest duties of Christianity, for that purpose? The price to pay is
the religious integrity of fifteen million men; the thing to buy is a
privilege for three hundred thousand slaveholders to use the North as a
hunting-field whereon to kidnap men at our cost. Judge you of that
bargain.
* * * * *