common to God and our Conscience, is the Aim and Purpose of Law in
general; if it be not that the law is so far unnatural, immoral, and
of no obligation on the conscience of any man. The special Statute,
Custom, or Decision, is a provisional Means to that end; if just, a
moral means and adequate in kind; if unjust, an immoral means,
inadequate in kind, and fit only to defeat the attainment of that
Justice which is the Purpose of all Law. Accordingly, if by an
accident, a special statute is so made that its application in a
particular case would do injustice and so defeat the Design and
Purpose of Law itself, then the function of the jury under their oath
requires them to preserve the End of law by refusing to apply the
provisional statute to an unjust use. And if by design a statute is
made in order to do injustice to any man--as it has very often
happened in England as well as America,--then the jury will accomplish
their function by refusing to apply that statute to any particular
case. So will they fulfil their official oath, and conserve the great
ultimate Purpose of Law itself.
Gentlemen, you will ask me where shall the jury find the Rule of
Right, and how know what is just, what not? In your own Conscience,
Gentlemen; not in the conscience of the Attorney for the
Plaintiff-Government, or the accused Defendant; not in the conscience
of the community; still less in the technical "opinion" of the
lawyers, or the ambition, the venality, the personal or purchased rage
of the court. Of course you will get such help as you can find from
judges, attorneys, and the public itself, but then decide as you must
decide--each man in the light of his own conscience, under the
terrible and beautiful eyes of God. How does the juror judge of the
Credibility of Evidence? By the "opinion" of the lawyers on either
side? by the judge's "opinion," or that of the community? No one would
dare determine thus. He decides personally by his own common sense,
not vicariously by another's opinion. And as you decide the Matter of
Fact by your own Discretion of Intellect, so will you decide the
Matter of Right by your own Discretion of Conscience.
Gentlemen, when the jury do their official duty it becomes impossible
to execute a statute, or custom, or to enforce a decision which the
jury--"the country"--think unjust and not fit to be applied.
But if the judge usurps these two functions of the jury, and himself
decides the Question of Law and its Application, you see what
follows--consequences the most ghastly, injustice in the name of Law,
and with the means of Law! Yes, tyranny spins and weaves with the
machinery of Freedom, and a Nessus-shirt of bondage is fixed on the
tortured body of the People. The power of the judge will be especially
dangerous in times of political excitement, and in political trials.
* * * * *
Gentlemen, this matter is so important, and the danger now so imminent
that you will pardon me a few words while I set forth the mode by
which this wickedness goes to work, and what results it brings to
pass. Follow me in some details.
I. As to the judges dealing with the Grand-Jury.
Here let me take the examples from the circuit court of the United
States in a supposed case where a man is to be tried for violating the
fugitive slave bill. You will see this is a case which may actually
happen.
1. The judge challenges the whole body summoned as grand-jurors and
catechizes them after this fashion.
(1.) "Have you formed an opinion that the law of the United States,
known as the Fugitive Slave Law of 1850, is Unconstitutional, so that
you cannot indict a person under it for that reason, although the
court holds the statute to be Constitutional?"
This is riddling No. 1. Such as think the fugitive slave bill
unconstitutional are at once set aside. The judge proceeds to ask such
as have no doubt that it is constitutional,
(2.) "Do you hold any opinions on the subject of Slavery in general,
or of the Fugitive Slave Law in special, which would induce you to
refuse to indict a man presented to you for helping his brother to
freedom?"
This is riddling No. 2; other "good men and true" are rejected, but
some are found "faithful" to the purposes of the court; and the judge
puts his next question,
(3.) "Will you accept for Law whatever the court declares such?"
This is riddling No. 3. Still the judge finds three-and-twenty men
small enough to pass through all these sieves. They are to be "the
jury." All the men who deny the constitutionality of the wicked
statute; all who have such reverence for the unalienable Rights of man
and for the Natural Law of God that they would not prevent a Christian
from aiding his brother to escape from bondage; all who have such
respect for their own manhood that they will not swear to take a
judge's word for law before they hear it--are shut out from the "grand
inquest;" they are no part of the "Country," or the "Body of the
county," are not "good men and true."
Gentlemen of the Jury, consider the absurdity of swearing to take for
law what another man will declare to be law, and before you hear it!
Suppose the judge should be drunk and declare the fugitive slave bill
in perfect harmony with the Sermon on the Mount, those noble words
"Whatsoever ye would that men should do unto you, do ye even so unto
them,"--are jurors to believe him? What if the judge should be sober,
and declare it a "misdemeanor" to call the fugitive slave bill a
wicked and hateful statute, and all who thus offended should be put in
jail for twelve months! Are honest men to take such talk for American
law?
The jurors then take this oath which the clerk reads them:--
"You, as a member of this Inquest for the District of Massachusetts,
shall diligently inquire and true presentment make of all such matters
and things as shall be given you in charge; the counsel of the United
States, your fellows', and your own you shall keep secret; you shall
present no man for envy, hatred, or revenge; neither shall you leave
any man unpresented--for love, fear, favor, affection, or hope of
reward; but you shall present things truly as they come to your
knowledge, according to the best of your understanding. So help you
God!"[114]
[Footnote 114: See other forms of Oath in 8 St. Tr. 759, 772.]
Then the judge appoints the most pliant member of the jury as
"foreman"--selecting, if possible to find him, some postmaster or
other official of the government, or some man marked for his injustice
or venality, who may have the desirable influence with his fellows.
2. The next thing is to moisten this material thus trebly sifted, and
mould it into such vessels of tyranny as he can fill with his private
or judicial wrath and then empty on the heads of his personal foes or
such as thwart his ambitious despotism or the purposes of his
government. So he delivers his CHARGE TO THE GRAND-JURY.
By way of introduction, he tells them--
(1.) That they are not the Makers of Law. Legislation is the function
of Congress and the President; even the COURT, the "SUPREME COURT OF
THE UNITED STATES" itself cannot make a law, or repeal one!
(2.) That they are not the Declarers, or Judges of Law. To know and
set forth the Law is the function of the COURT. It is true every man
in his personal capacity, as private citizen, is supposed to know the
law, and if he violates it, of his own presumption, or by the
persuasion of some others who falsely tell him about the law, he must
be punished; for "_ignorantia nemini excusat_," ignorance excuseth
none; the private advice of the full bench of judges would be held no
excuse. But in their official capacity of jurors they are supposed to
know nothing of the Law whatsoever.
It seems taken for granted that though one of the Jurors may be an old
judge of the Supreme Court of the United States, and have sat on the
bench for twenty years; nay, though he may be also an old legislator
of twenty years' standing, and as legislator have made the very
statute in question, and also as judge subsequently have explained and
declared it, yet the moment he takes the oath as Grand-Juror, all this
knowledge is "gone from him" as completely Nebuchadnezzar's dream. The
court is the assembly of magicians, astrologers, sorcerers, and
Chaldeans to restore it. Congress might pass a law compelling
ex-judges, ex-senators, and ex-representatives--who are so numerous
nowadays, and continually increasing and likely to multiply yet
more,--to serve as grand-jurors; soon as they take their oath, they
are in law held and accounted to be utterly ignorant of law, and bound
to accept as law whatsoever the court declares such. The acting judge
may be young, blind, ignorant, ambitious, drunk with brandy or rage,
he may have a personal interest in promoting [Transcriber's Note: for
'promoting' read 'perverting'; see Errata] the law, and may
notoriously twist it so as to gratify his peculiar or familistic
spleen, still the jury to accept the court's opinion for the nation's
law. Any political ignoramus, if hoisted to the "bench," has judicial
authority to declare the law,--it is absolute. If he errs, "he is
responsible to the proper authorities--he may be removed by
impeachment;" but the jury must not question the infallibility of his
opinion. For though the grand-jury is "the country," the judge is not
only all that, and more so; but is "the rest of mankind" besides.
Then the judge goes further--talks _solemnly_, yet familiar; to
wheedle jurors the better, he mixes himself with them, his "WE"
embracing both judge and jury. I shall now quote actual language used
in this very court, by the late Hon. Judge Woodbury:--
"One of the peculiar dangers ... to which jurors, as well as
judges, are exposed, is the _unpopularity, or obnoxiousness_
... of any particular law, which has been violated, leading
_us_ ... 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,
in _humble imitation of the Divine Judge_ on 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
to _all 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,
our _convictions of justice_] _to defeat its due course and
triumph_." We must _not_ "_disregard laws_, when disliked,
_because we can_, under the universal suffrage enjoyed here,
_otherwise help_ legally _to change or annul them_ by our
votes." "As jurors _you 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 others_ who 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 the _existing 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 that
_we_ ourselves _may not be exactly Solons or Solomons_ in
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 a _betrayal of public trust_ springs from the
_delusions 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 some _possibility 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 have _conscientious 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 which
_is only disagreeable_, or the result of only some
_prejudice 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 to
_disregard them in any way and on any occasion, from
constitutional doubts_, unless of the clearest and strongest
character."[115]
[Footnote 115: The above extracts are from Judge Woodbury's charge to
the Grand-Jury, in Circuit Court of United States, at Boston, taken
from the _Evening Traveller_, copying the reprint of Boston Daily
Advertiser, of October 25, 1850.]
He then tells them that _no feeling of Humanity_ must 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_; an
_unjust law_ as a _just 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, to _the moral aspects_ of the subject." "The States without
the constitution would be to each other foreign nations." "Those,
therefore, who have the strongest convictions of the _immorality of
the institution of slavery_, are not thereby authorized to conclude
that the _provision 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, as _unjust 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!' The _incompatibility_ which the
question assumes [between _Right and Wrong, or Good and Evil, or God
and the Devil_] _does not exist_! Unjust and oppressive laws _may
indeed be passed_ by human governments. But if _Infinite 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 is _fallible_, 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." A
_statute_ "is the moral judgment, the _embodied 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 and _controlling element
in forming his own moral judgment_;" [that is, he must _think_ the
statute is just]. "Obedience is a _moral duty_, [no matter how immoral
the law may be]. _This is as certain as that the Creator made man a
social being_;" "to _obey the laws of the land_ [no matter what laws,
or how wicked soever] _is, then, to obey the Will of God_!"
[Footnote 116: Words of Chief Justice Parker, in _Commonwealth_ vs.
_Griffith_, 2 Pickering's Reports, 19, cited with approbation by Chief
Justice Shaw, in the Sims case, 7 Cushing's Reports, 705, and also
cited from him and acted on by fugitive slave bill Commissioner
Loring, in the Burns case.]
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.
[Footnote 117: See _Boston Daily Advertiser_ of March 19, 1851.]
[Footnote 118: See above, p. 33, 37, _et al._]
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 the _Lex terrae_, the Law of the Land." 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, this _may_ be 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 Caesar'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 something to 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 rejoicing _amongst his
kinsfolk and intimate friends_ who whinney and neigh over it in the
public journals, and leer at the indicted man in the street, lolling
out their tongues greedy for his [Transcriber's Note: omit 'his'; see
Errata] vengeance!
* * * * *
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.