punishment" such men as Otis and Adams and Hancock. Chief Justice
Hutchinson declared Samuel Adams "_the greatest incendiary in the
king's dominions_." Hutchinson was right for once. Samuel Adams lit a
fire which will burn on Boston Common on the Fourth day of next July,
Gentlemen, and on many other commons besides Boston. Aye, in the heart
of many million men--and keep on burning long after Hutchinson ceases
to be remembered with hate, and Adams with love. "The greatest
incendiary!" so he was. Hutchinson also thought there must be "an
Abridgment of what are called English Liberties," doubtless the
liberty of speaking in Faneuil Hall, and other meeting-houses was one
"of what are called English Liberties" that needed speedy abridgment.
He wished the law of treason to be extended so that it might catch all
the patriots of Boston by the neck. He thought it treasonable to deny
the authority of Parliament.[106] Men suspected of "misdemeanors" were
to be sent to England for trial! What a "trial" it would have
been--Hancock and Adams in Westminster Hall with a jury packed by the
government; Thurlow acting as Attorney-General, and another Thurlow
growling on the bench and expecting further office as pay for fresh
injustice! Truly there would have been an "abridgment of English
Liberties." Gentlemen of the Jury, Mr. Phillips and Mr. Higginson in
this case are charged with "obstructing an officer." Suppose they were
sent to South Carolina to be tried by a jury of Slaveholders, or
still worse, without change of place, to be tried by a court deadly
hostile to freedom,--wresting law and perverting justice and
"enlarging testimony," personally inimical to these gentlemen; suppose
that the Slave-hunter whose "process" was alleged to be resisted, was
kinsman to the court, and the judge had a near relation put on the
jury--what opportunity would there be for justice; what expectation of
it? Gentlemen of the Jury, that is the state of things which the
despots of England wanted to bring about by sending Hancock and Adams
over seas for trial! Bernard, Oliver, and Hutchinson were busy in
getting evidence against the Patriots of New England, especially
against Adams. Affidavits were sent out to England to prove that he
was a fit subject to be transported for "trial" there. And an old
statute was found from the enlightened reign of Henry VIII.
authorizing that mode of trial in case of such "misdemeanor."
Commissary Chew wished that two thirds of the lawyers and printers
were shipped off to Africa "for at least seven years." Edes and Gill,
patriotic printers in Boston, and "all the authors of numberless
treasonable and seditious writings," were to go with them.[107] They
were all guilty, very guilty! Gentlemen of the Jury, they committed
"misdemeanors," they "obstructed officers," they resisted the process
of despotism! But alas--
"The Dog it was that died."
[Footnote 106: 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, _et
al._]
[Footnote 107: 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, _et
al._]
Edes and Gill never saw Africa; the patriotic lawyers and printers
made no reluctant voyage to England.
"The Dog it was that died."
Bernard, Hutchinson, Oliver, and their coadjutors went over the seas
for punishment after being tried at home by a Law older than the
statute of Henry VIII.; a law not yet repealed, Gentlemen, the Higher
Law which God wrote ineffaceably in the hearts of mankind; and
indignant America pronounced sentence--Tories, Traitors! Commissary
Chew learned a lesson at Saratoga in 1777. And the Franklins, the
Mayhews, the Hancocks, the Adamses, they also were tried at home, and
not found wanting; and the verdict! Gentlemen of the Jury, you know
what verdict America has pronounced on these men and their kinsfolk!
There is only one spot in the United States where the Hutchinsons, the
Olivers, the Bernards are honored,--that is where the Adamses, the
Hancocks, the Mayhews, and the Franklins, with the principles of
justice they gave their lives to, are held in contempt! Where is the
one spot, that speck of foreign dirt in the clean American garden? It
is where the Democratic Herod and the Whig Pilate are made friends
that they may crucify the Son of Man, the Desire of all nations, the
Spirit of Humanity--it is the court of the Fugitive Slave Bill judges,
the Gabbatha of the Kidnappers. Look there!
In 1765 it was too late to conquer America. What Andros and Randolph
could accomplish in 1686 with their sixty soldiers, could not be done
in 1768 with all the red coats Britain could send out: nor in 1778
with all the Hessians she could purchase. The 19th of April, 1689,
foretold another 19th of April--as that many to-morrows after to-day!
In the House of Lords Camden and Pitt thought Parliament not
omnipotent.[108] Samuel Adams declared "Acts of Parliament against
natural equity are void;" prayed that "Boston might become a Christian
Sparta," and looked to the Law of an Omnipotence somewhat higher than
a king or a court. He not only had Justice, but also the People on his
side. What came of that last attempt of the last king of New England
to establish a despotism here? The same, Gentlemen, which will
ultimately come of all such attempts.
[Footnote 108: 16 Parl. Hist. 168, 195, 658.]
* * * * *
Gentlemen of the Jury, there is one great obstacle which despotism has
found in Anglo-Saxon lands, steadily opposing its steady attempts to
destroy the liberties of the People. It is easy for the controlling
power, which represents the Centripetal Tendency of the Nation, to
place its corrupt and servile creatures in judicial offices, vested
with power to fine, to imprison, and to kill; it is then easy for them
to determine on the destruction of all such friends of Justice and
Humanity as represent the Centrifugal Tendency of the Nation; and with
such judicial instruments it is not difficult to wrest and pervert law
in order to crush the Patriots, and construct a word into "Treason,"
or "evincing express approbation" into a "Misdemeanor," "resisting an
officer." And if the final decision rested with such a court, it would
be exceeding easy to make way with any man whom the judge's private
malignity or the public vengeance of his master, wished to smite and
kill. But in the Anglo-Saxon people there is one institution, old,
venerable, and well-beloved, which has stood for two thousand years,
the great Fortress of Freedom. Thank God, Gentlemen, it still stands.
Neither British Kings nor American Slave-drivers have yet brought it
to the ground. Of this I must now say a word.
III. OF THE GREAT SAFEGUARD WHICH HAS BEEN FOUND SERVICEABLE IN
PROTECTING DEMOCRATIC INSTITUTIONS AND THE RIGHTS OF MAN THEY ARE
DESIGNED TO DEFEND.--OF THE TRIAL BY JURY.
This is an invaluable protection against two classes of foes to the
welfare of mankind.
1. Against such as would commit offences upon the property or persons
of men, without law and contrary to the form of law,--against common
criminals of all denominations. Against such it is a sword--to resist
and punish.
2. Against such as would commit offences upon the property or persons
of men, with the form of law and by means of its machinery,--against
unjust legislators, corrupt Judges, and wicked magistrates; against
such it is a shield defending the public head.
In all the States of Anglo-Saxon origin there are two great popular
institutions--Democratic Legislation and Democratic Administration of
Law.
In the process of its historical development the first has come to the
representative form of democratic legislation,--popular law-making by
a body of sworn delegates met in an Assembly, local or federal,
subject to a constitution, written or only traditional, which is the
People's Power of Attorney, authorizing them to do certain matters and
things pertinent to law-making. These are a Jury of general
Law-makers.
In its process of historical development, the second has also come to
a representative form, that of democratic application of law, popular
law-applying, by a body of sworn delegates, that is a Court, subject
to a constitution and laws, written or only traditional, which are the
People's Power of Attorney authorizing them to do certain matters and
things pertinent to law-applying. These are a Jury of special
Law-appliers.
Neither of them as yet has reached its perfect and ultimate form; both
are still in a state of transition. These two are the most valuable
institutional safeguards against unorganized selfishness in the
community,--against thieves, robbers, murderers, traitors, and the
like; against the organized selfishness which gets into places of
delegated power, and would misuse the Form of law so as to prevent the
People from attaining the Purpose of law.
There is also a body of men intermediate between the two,--the
Law-Explainers, the Judges. Speaking theoretically they are not
ultimately either Law-makers or Law-appliers, yet practically, in
their legitimate function, they certainly have much to do with both
the making and applying of laws. For it is their business, not only
to preside at all trials, and determine many subordinate questions of
mere form to expedite the process, but also from the whole mass of
laws, oral or written, statutes and customs, to select such particular
laws as they think require special attention,--this is like the work
of law-makers; and also, in their charges to the grand and petty
Juries, to suggest the execution thereof in such cases as the times
may bring,--this like the work of the law-appliers.
The good judge continually modifies the laws of his country to the
advantage of mankind. He leaves bad statutes, which aim at or would
promote injustice, to sleep till themselves become obsolete, or
parries their insidious thrusts at humanity; he selects good statutes
which enact natural Justice into positive law; and mixes his own fresh
instincts of humanity with the traditional institutions of the age.
All this his official function requires of him--for his oath to keep
and administer the laws binds him to look to the Purpose of Law--which
is the Eternal Justice of God,--as well as to each special statute.
Besides, after the Jury declares a man guilty, the Judge has the power
to fix the quantity and sometimes the quality of his punishment. And
the discretion of a great noble man will advance humanity.
In this way a good Judge may do a great service to mankind, and
correct the mistakes, or repel the injustice of the ultimate makers
and appliers of law, and supply their defects. Thus in England those
eminent Judges, Hale, Somers, Hobart, Holt, Camden, Mansfield, and
Brougham, have done large service to mankind. Each had his personal
and official faults, some of them great and glaring faults of both
kinds, but each in his way helped enact natural Justice into positive
law, and so to promote the only legitimate Purpose of human
legislation, securing Natural Rights to all men. To such Judges
mankind owes a quite considerable debt.
But in America the Judge has an additional function; he is to
determine the Constitutionality of a law. For while the British King
and Parliament claim to be legislatively omnipotent, supreme, the
Ultimate human source of law, the Living Constitution of the realm,
and therefore themselves the only Norm of law,--howsoever ill-founded
the claim may be,--in America it is the People, not their elected
servants, who are the Ultimate human source of law, the Supreme
Legislative power. Accordingly the People have prepared a written
Constitution, a Power of Attorney authorizing their servants to do
certain matters and things relating to the government of the nation.
This constitution is the human Norm of law for all the servants of the
people. So in administering law the Judge is to ask, Is the statute
constitutional? does it square with the Norm of law which the People
have laid down; or have the legislative servants exceeded their Power
of Attorney, and done matters and things which they were not empowered
to do? In deciding this question, the Judge is to consider not merely
the Provisional Means which the Constitution designates, but also the
Ultimate Purpose thereof, the Justice and Liberty which, as its
preamble declares, it expressly aims at, and which are also the ideal
End of all sound legislation.
There is no country in the world where a great man has so noble a
place and opportunity to serve mankind as in America.
But a wicked Judge, Gentlemen, may do great harm to mankind, as I have
already most abundantly shown. For we have inherited a great mass of
laws,--customary or statutory; the legislature repeals, modifies, or
adds to them; the Judge is to expound them, and suggest their
application to each special case. The Jury is to apply or refuse to
apply the Judge's "law." In all old countries, some of these laws have
come from a barbarous, perhaps even from a savage period; some are the
work of tyrants who wrought cruelly for their own advantage, not
justly, or for the good of mankind; some have been made in haste and
heat, the legislature intending to do an unjust thing. Now an unjust
Judge has great power to select wicked statutes, customs, or
decisions; and in no country has he more power for evil than in the
federal courts of the United States. For as in England, when the
King-power makes a wicked law, the Judge, who is himself made by that
same power, may declare it just, and execute the heinous thing; so in
America, when the Slave power enacts a wicked statute, contrary to the
purpose of the constitution and to the natural justice of God, the
Judge, who is the creature of that same power, may declare it
constitutional and binding on all the People who made the constitution
as their Power of Attorney. Thus all the value of the constitution to
check despotism is destroyed, and the Fortress of Freedom is betrayed
into the hands of the enemies of liberty!
But barbarous laws must not be applied in a civilized age; nor unjust
laws enforced by righteous men. While left unrepealed, a fair and
conscientious Jury will never do injustice, though a particular
statute or custom demand it, and a wicked Judge insist upon the wrong;
for they feel the moral instinct of human nature, and look not merely
to the letter of a particular enactment, but also to the spirit and
general purpose of law itself, which is justice between man and man.
The wicked Judge, looking only to the power which raised him to his
place, and may lift him higher still,--not to that other Hand which is
over all,--or consulting his own meanness of nature, selects the
wicked laws, and makes a wicked application thereof. Thus in America,
under plea of serving the people, he can work most hideous wrong.
Besides, the Judges are lawyers, with the technical training of
lawyers, with the disposition of character which comes from their
special training and profession, and which marks the manners, the
language and looks of a lawyer. They have the excellence of the
lawyer, and also his defects. Commonly they are learned in their
profession, acute and sharp, circumspect, cautious, skilful in making
nice technical distinctions, and strongly disposed to adhere to
historical precedents on the side of arbitrary power, rather than to
obey the instinctive promptings of the moral sense in their own
consciousness. Nay, it seems sometimes as if the moral sense became
extinct, and the legal letter took the place of the spirit of Justice
which gives life to the People. So they look to the special statute,
its technical expositions and applications, but not to Justice, the
ultimate Purpose of human law; they preserve the means and miss the
end, put up the bars in the nicest fashion, and let the cattle perish
in their pen. Like the nurse in the fable, they pour out the baby, and
carefully cherish the wooden bath-tub! The Letter of the statute is
the Idol of the Judicial Den, whereunto the worshipper offers
sacrifices of human blood. The late Chief Justice Parker, one of the
most humane and estimable men, told the Jury they _had nothing to do
with the harshness of the statute_! but must execute a law, however
cruel and unjust, because somebody had made it a law! How often Juries
refuse to obey the statute and by its means to do a manifest
injustice; but how rarely does a Judge turn off from the wickedness of
the statute to do Justice, the great Purpose of human law and human
life! Gentlemen, I once knew a democratic judge--a man with a noble
mind, and a woman's nicer sense of right--who told the Jury, "Such is
the law, such the decisions; such would be its application to this
particular case. But it is unjust;--it would do a manifest and
outrageous wrong if thus applied. You as Jurors are to do Justice by
the law, not injustice. _You will bring in a verdict according to your
conscience._" They did so. Gentlemen, I should not dare tell you that
Judge's name. It would greatly injure his reputation. God knows
it--for there is a Higher Law.
When the New York Convention assembled in 1846 to revise the
constitution of that State, some powerful men therein felt the evil of
having the Court of last Appeal consist wholly of lawyers. Mr. Ruggles
thought the judges who reexamine the decisions and pronounce the final
judgment in disputed cases, and determine the constitutionality of
laws, should be men who are "brought into direct contact with the
people and their business." He wished that of the eight judges of this
appellate Court, four should be Justices of the Supreme Court, and
four more should be elected by the people on a general ballot, thus
securing a popular element in that highest Court. By this popular
element, representing the instinctive Justice of Humanity, he hoped to
correct that evil tendency of professional men which leads them away
"from the just conclusions of natural reason into the track of
technical rules inapplicable to the circumstances of the case, and at
variance with the nature and principles of our social and political
institutions."[109] "Such judges," said another lawyer, "would retain
more of the great general principles of moral justice, ... the
impulses of natural equity, such as ... would knock off the rough
corners of the common law and loosen the fetters of artificial and
technical equity."[110]
[Footnote 109: Debates in New York Convention, 371, _et al._]
[Footnote 110: Jordan's Speech, _ibid._, 447, _et al._ See also Mr.
Stow's Remarks, 473, and Mr. Stephens', 474, _et al._ Yet all these
four speakers were lawyers.]
Commonly in America, as in England, for judges the Federal Government
appoints lawyers who have done some party service, or are willing to
execute the designs of the great ruling Power, the Slaveholders,
regardless alike of the interests of the People and the protestations
of the Conscience of Mankind.[111] You know how Hardwicke and Thurlow
got their office in England, how they filled it, and what additional
recompense followed each added wickedness. Need I mention the name of
Americans with a similar history? Gentlemen, I pass it by for the
present.
[Footnote 111: Hildreth's Despotism in America (1854), 263, _et al._]
Still further, these judges thus appointed become familiar with fraud,
violence, cruelty, selfishness,--refined or brutal,--which comes
before them; they study the technicalities of the statutes, balance
the scruples of advocates; they lose their fresh intuitions of
justice, becoming more and more legal, less and less human, less
natural and more technical; their eye is microscopic in its niceness
of discrimination, microscopic also in its narrowness of range. They
forget the universality of justice,--the End which laws should aim at;
they direct their lynx-eyed attention to the speciality of the
statutes which is only the Means, of no value save as conducing to
that end. Their understanding is sharp as a mole's eye for the minute
distinctions of the technicalities of their craft; but, as
short-sighted as the mole, they cannot look at justice. So they come
to acknowledge no obligation but the legal, and know no law except
what is written in Black Letter on parchment, printed in
statute-books, reported in decisions; the Law written by God on the
soul of man they know not, only the statute and decision bound in pale
sheepskin. In the logic of legal deduction--technical inference--they
forget the intuition of conscience: not What is right? but What is
law? is the question, and they pay the same deference to a wicked
statute as a just one. So the true Mussulman values the absurdities
of the Koran as much as its noblest wisdom and tenderest humanity.
Such a man so appointed, so disciplined, will administer the law
fairly enough in civil cases between party and party, where he has no
special interest to give him a bias--for he cares not whether John Doe
or Richard Roe gain the parcel of ground in litigation before him. But
in criminal cases he leans to severity, not mercy; he suspects the
People; he reverences the government. In political trials he never
forgets the hand that feeds him,--Charles Stuart, George Guelph, or
the Slave Power of America.
These things being so, in such trials you see the exceeding value of
the jury, who are not Office-holders, under obligation to the hand
that feeds them; not Office-seekers, willing to prostitute their
faculties to the service of some overmastering lust; not lawyers
wonted to nice technicalities; not members of a class, with its
special discipline and peculiar prejudices; but men with their moral
instincts normally active, and unsophisticated humanity in their
hearts. Hence the great value of the jury in criminal trials.
Gentlemen, you are the jurors in this case, to decide between me and
the government. Between the government and ME! no, Gentlemen, between
the Fugitive Slave Bill and Humanity. You know the Function of the
court--the manner of the Judges' appointment--the services they are
expected to render in cases like this, the services they have already
rendered.
Let me speak of the Function of the Jury. To do that, I must say a few
words of its Historical Development. I must make it very brief and
sketchy. Here I shall point out six several steps in the successive
development of popular Law-making and Law-applying.
* * * * *
1. In the barbarous periods of the Teutonic Family,[112] it seems the
"whole People" came together at certain regular seasons to transact
the business of the nation. There was also a meeting of the
inhabitants of each district or neighborhood at stated times,--a
"regular meeting;" and sometimes a special meeting to provide for some
emergency--a "called meeting." If one man had wronged another the
matter was inquired into at those popular meetings. One man
presided--chosen for the occasion. In the early age it appears he was
a priest, afterwards a noble, or some distinguished man, selected on
the spot. The whole people investigated the matter, made the
law--often an _ex post facto_ law,--applied it to the special case,
and on the spot administered the punishment--if corporeal, or decreed
the recompense--if pecuniary. The majority carried the day. Thus at
first the Body of People present on the occasion were the law-makers,
the law-appliers, and law-executors. Each law was special--designed
for the particular case in hand, retrospective for vengeance more than
prospective for future welfare.
[Footnote 112: By this term I mean all the nations with language akin
to the German.]
2. Then in process of time, there came to be a body of laws--fixed and
understood by the People. Partly, these came from the customs of the
People, and represented past life already lived; but partly, also,
from the decrees of the recognized authorities--theocratic, monarchic,
aristocratic, democratic--representing the desire for a better life, a
rule of conduct for the future. Then at their meetings, to punish an
offender the people did not always make a new law, they simply used
what they found already made. They inquired into the fact, the deed
done, the law, and applied the general law to the special fact, made
their decree and executed it. Thus extemporaneous Making of law for
the particular case, gradually passed away, and was succeeded by the
extemporaneous Declaration of the law previously made, and its
Application to the matter in hand.
3. By and by it was found inconvenient for a multitude to assemble and
make the laws, so a body of select men took a more special charge of
that function. Sometimes a chief, or king, usurped this for himself;
or men were chosen by the people, and took an oath for the faithful
discharge of their trust. Thus came popular law-making by sworn
delegates, representatives of the people, who had a certain special
power of attorney, authorizing them to make laws. These might be
Priests--as at the beginning; or Nobles of priestly stock, as at the
next stage; or Military Chiefs--as in all times of violence; or
powerful Private men,--summoned from the nation, of their own accord
undertaking the task, or chosen by the various neighborhoods,--the
whole process seems to have been irregular and uncertain, as indeed it
must be amongst rude people.
So at that time there were two sources of law-making.
(1.) The unorganized People--the primary source, whose unconscious
life flows in certain channels and establishes certain customs, rules
of conduct, obeyed before they are decreed, without any formal
enactment. These were laws _de facto_.