try the issue _according to the law_ does not mean (a) according to
the whole complex which is called "_Law_," or "_The Law_," but
according only to that particular statute which forbids the deed
charged,--for otherwise the Jury must judge of the Purpose of Law,
which is Justice, and inquire into the rightfulness of the deed and of
the statute which forbids it. Nor does it mean (b) by the Jurors'
notion of that statute, but only by the Judge's opinion thereof. He
tells them--if they proceed to inquire into the natural Justice of the
deed, or into the law which forbids it, then they transcend their
office, and are guilty of "Perjury," and reads them the statute for
the punishment of that offence, and refers to examples--from the times
of the Stuarts, though he does not mention that--when Jurors were
fined and otherwise severely dealt with for daring to resist a judge.
Then out of the facts testified to by the government witnesses, he
selects some one which is best supported, of which there is no doubt.
He then declares that the question of "Guilty or not guilty" turns on
that point. If the accused did that deed--then he is Guilty. So the
moral question, "Has the man done a wrong thing?" is taken from their
consideration; the intellectual question, "Has he done a deed which
amounts to the crime forbidden?" is not before them; only the
mechanical question, "Did he do that particular act?" They are not to
inquire as to the Justice of the law, its Constitutionality, or its
Legality; nor the Justice or the Criminality of the deed--only of its
Actuality, Did he do this deed? Nay, sometimes the Judge treats them
as cattle, and orders them to _find the facts for the government_. If
they refuse, he threatens them with punishment.
Thus he constructs the Trial-Jury, the Law, the Evidence, the Crime,
and the Fact.
* * * * *
Now, Gentlemen, when this is done and done thoroughly, the Judge has
kept all the Forms, Presentment by the Grand-Jury, and Trial by a
Petty Jury; but the substance is all gone; the Jury is only a stalking
horse, and behind it creeps the Judicial servant of Tyranny, armed
with the blunderbuss of law,--made and loaded by himself,--and
delivers his shot in the name of law, but against Justice, that
purpose of all law. Thus can tyranny be established--while all the
forms of law are kept.[119]
[Footnote 119: See 1 Jardine, Criminal Trials, 110. 2 Parker's
Sermons, 266 and note.]
Gentlemen of the Jury, let me make this more clear by a special case
wholly fictitious.--Thomas Nason, a "Non-Resistant" and a Quaker, is a
colored citizen of Boston, the son and once the slave of Hon. James
Nason of Virginia, but now legally become a free man by self-purchase;
he has the bill of sale of himself in his pocket, and so carries about
him a title deed which would perhaps satisfy your Honors of his right
to liberty. But his mother Lizzie (Randolph) Nason, a descendant of
both Mr. Jefferson and Mr. Madison,--for Virginia, I am told, can
boast of many children descended from two Presidents, perhaps from
three, who
"Boast the pure blood of an illustrious race,
In quiet flow from Lucrece to Lucrece"--
from Saxon master to African slave,--is still the bondwoman of the
Hon. James, the father of her son Thomas. From the "Plantation
manners" of her master, the concubine, "foolishly dissatisfied with
slavery," flies to Boston, and takes refuge with her Quaker son, who
conceals his mother, and shelters her for a time. But let me suppose
that his Honor Judge Curtis, while at Washington, fired with that
patriotism which is not only habitual but natural and indigenous to
his Honor, informs Mr. Nason of the hiding-place of his female slave,
thus betraying a "mistress" to her master, no longer, alas, her
"keeper." It is no injurious imputation--it is an imaginary honor I
attribute to the learned and honorable Judge. Mr. Nason sends the
proper agent to Boston to save the Union of States by restoring the
union of master and slave. Mr. George Ticknor Curtis, fugitive slave
bill commissioner, and brother to the Hon. Judge, issues his warrant
for kidnapping the mother; his coadjutor and friend, Mr. Butman,
attempts to seize her in her son's house. Thomas, unarmed, resists the
intruder, and with a child's pop-gun drives that valiant officer out
of the house, and puts the mother in a place of safety,--beneath the
flag of England, or the Pope, or the Czar. Commissioner Curtis
telegraphs the news to Washington,--announcing a "NEW CASE OF
TREASON--more 'levying war!'" The Secretaries of State and of War
write dreadful letters, breathing fire and slaughter, and President
Pierce, a man of most heroic courage, alike mindful of his former
actual military exploits at Chapultepec, of his delegated triumph at
Greytown, and of the immortal glory of Mr. Fillmore, issues his
Proclamation, calling on all good citizens, and especially on the
politicians of his party, to "Save the Union" from the treason of this
terrible Thomas Nason, who will blow up the Constitution with a
pop-gun!
At the next session of the Honorable Circuit Court of the United
States in and for the first District, his Honor the Hon. Benjamin
Robbins Curtis, Judge, constructs and charges the Grand-Jury in the
manner already set forth. He instructs them that if any man, by force
and arms, namely, with a pop-gun, does resist a body of United States
officers, attempting to kidnap a woman, his own mother, that he
thereby levies war against the United States, and accordingly commits
the crime of "Treason" which consists in levying war against the
United States--the "_amount_ of force is not material." And it is
their duty to indict all persons in that form offending. The Attorney,
the Hon. Benjamin Franklin Hallett, offers to "bet ten dollars that I
will get" Nason "indicted," and urges the matter. But no bill is
found, the Jury is discharged, a new Jury is summoned, and Mr. William
W. Greenough, the Brother-in-law of the Judge is put on it, "drawn as
Juror"--and then a "true bill" is found, Mr. Hallett actually making
an indictment that cannot be quashed!
On the day before Thanksgiving Thomas Nason is arraigned; and is
brought to trial for this new Boston Massacre on the anniversary of
the old one--on the Fifth of March. The judge constructs a Trial-Jury
as before. Mr. Hallett, assisted by Mr. Thomas, Mr. George T. Curtis,
and Commissioner Loring, manage the case for the government, bringing
out the whole strength of the kidnapping party, and directing this
Macedonian phalanx of Humanity and Law and Piety against a poor
friendless negro. Mr. Hale, Mr. Ellis, and Mr. Dana defend him.
Officer Butman and his coadjutors--members of the "Marshal's
guard"--testify that Mr. Nason attacked them with the felonious weapon
above named, putting them in mortal bodily fear greater than that
which in Mexico once overthrew the (future) President of all this
land! Mr. Herrman, the dealer in toys, testifies that he sold the
murderous weapon for twenty-five cents to Mr. Nason who declared that
he "could frighten Butman with it;" that it is of German manufacture,
and is called a Knallbuechse!
Judge Curtis sums up the matter. He tells the jury, (1.) That they are
not to judge of the Law punishing treason, but to take it from the
Court. (2.) Not to judge what Act constitutes the Crime of Treason,
but take that also from the Court, and if the Court decides that
offering a pop-gun at a rowdy's breast constitutes the crime of
treason, they are to accept the decision as constitutional law. (3.)
They are not to ask if it be just to hang a man for thus resisting a
body of men who sought to kidnap his mother, for even if it be unjust
and cruel it is none of their concern, for they must execute a cruel
and unjust law with even more promptitude than a just and humane one,
and in the language of the "Defender of the Constitution," "conquer
their prejudices," and "do a disagreeable duty." (4.) If they think
the Law commands one thing and the Will of God exactly the opposite,
in the well-known words of Judge Sprague, they must "obey both" by
keeping the law of man when it contradicts the law of God, for they
can never be good Christians so long as they scruple to hang a Quaker
for driving off a kidnapper; and obedience to the law is a moral duty,
no matter how immoral the law may be, and "to obey the law of the land
is to obey the will of God." (5.) But they have a simple question of
fact to determine; namely, Did the Defendant resist officer Butman in
the manner set forth? If satisfied of that, they must find him guilty.
No mistaken notions of Justice must induce them to refuse their
verdict--for they are not to make the law, but only help execute it;
and their conscience is so "fallible, especially when the rights of
others are concerned, and may lead them to do great injustice," for
"the annals of the world abound with enormities committed by a narrow
and darkened conscience." They must not ask if it be "religious" to do
so--for to use the words of the most religious of all Americans, a man
of most unspotted life in public and private, "Religion has nothing to
do with politics," and this is a political trial. If there be any
injustice in the law and its execution the blame lies with the makers
thereof not with the jurors, and they may wash their hands as clean as
Pilate's from the blood of Christ. Besides, if there be injustice the
President can pardon the offender, and from his well-known religious
character--which rests on the unbiased testimony of his _own minister_
and the statement of several partisan newspapers published in the very
heat of the election, when men, and especially politicians looking for
office, never exaggerate,--he doubtless "will listen to petitions for
a commutation of punishment!"
But there is no injustice in it--for slavery is part of the _lex
terrae_, the law of the land, protected by the Constitution itself,
which is the _Lex Suprema_--the Supreme Law of the Land, and nearly
eighty years old! Besides, "Slavery is not immoral," not contrary to
the public policy of Massachusetts; and, moreover, the "mother" whom
the criminal actually rescued, was a "foreigner" and "whatever rights
she had, she had no right _here_."[120]
[Footnote 120: See Hon. Judge Curtis's Speech at the Union Meeting in
Faneuil Hall, November 26, 1850.]
But it is not a cruel or an unchristian thing to require a negro
layman to allow his mother to be kidnapped in his own house--especially
if she were a born slave, and so by the very law "a chattel personal
to all uses, intents, and purposes whatever," and of course wholly
divested of all natural rights, even if a colored person ever had
any--for an eminent American minister, of one of the most enlightened
sects in Christendom, has publicly offered to send his own freeborn
mother into bondage for ever!
Moreover, if the jurors do not find a verdict of guilty, then they
themselves are guilty of PERJURY!
So the jury, without leaving their seats, find him guilty; the judge
sentences; the President signs the Death-warrant, and Marshal Freeman
hangs the man--to the great joy of the Commissioner's and the
Marshal's guard who vacate the brothels once more and attend on that
occasion and triumph over the murdered Quaker.
But the mischief does not stop there; the Boston slave-hunters are not
yet satisfied with blood; the judge constructs another grand-jury as
before, only getting more of his kinsfolk thereon, and taking his law
from the impeached Judges Kelyng and Chase, charges that all persons
who _advise_ to an act of levying war, or evince an "_express liking_"
for it, or "_approbation_" of it, are also guilty of treason; and "in
treason all are Principals." Accordingly the jury must indict all who
have evinced an "express liking" of the rescue, though they did not
evince approval of the rescue by such means. It appears that Rev. Mr.
Grimes in the meeting-house the Sunday before the treason was
consummated, had actually prayed that God would "break the arm of the
oppressor and let the oppressed go free;" that he read from a book
called the Old Testament, "Bewray not him that wandereth," "Hide the
outcast," and other paragraphs and sentences of like seditious nature.
Nay, that from the New Testament he had actually read the Sermon on
the Mount, especially the Golden Rule and the summing of the Law and
the Prophets in one word, Love,--and had applied this to the case of
fugitive slaves; moreover, that he had read the xxvth chapter of
Matthew from the 31st to the 46th verse, with dreadful emphasis.
Nay, anti-slavery men--in lectures--and in speeches in the Music Hall,
which was built by pious people--and in Faneuil Hall, which was the
old Cradle of Liberty, had actually spoken against man-stealing,--and
even against some of the family of kidnappers in Boston!
Still further, he adds, with great solemnity, a woman--a negro
woman,--the actual wife of the criminal Nason--had brought
intelligence--to her husband--that Mr. George T. Curtis,--the brother
of the judge,--had issued his warrant--and Mr. Butman--"with a
monstrous watch"--was coming to execute it--she told her
husband,--and--incited him to his dreadful crime! If you find these
facts you must convict the prisoners.
So thirty or forty more are hanged for treason.
Gentlemen of the Jury, these fictitious cases doubtless seem
extravagant to you. I am glad they do. In peaceful times, in the
majority of cases there is no disagreement between the law, the judge,
and the jurors; the law is just, or at least is an attempt at justice,
the judge wishes to do justice by means thereof, and the jurors aim at
the same thing. In such cases there is no motive for doing wrong to
any person: so the judge fairly interprets the righteous and wholesome
law, the jurors willingly receive the interpretation and apply it to
the special case, and substantial justice is done. This happens not
only in civil suits between party and party, but also in most of the
criminal cases between the Public and the Defendant. But in times of
great political excitement, in a period of crisis and transition, when
one party seeks to establish a despotism and deprive some other class
of men of their natural rights, cases like those I have imagined
actually happen. Then there is a disagreement between the judge and
the jury; nay, often between the jury and the special statute
wherewith the government seeks to work its iniquity. It is on such
occasions that the great value of this institution appears,--then the
jury hold a shield over the head of their brother and defend him from
the malignity of the government and the Goliath of injustice,
appointed its champion to defy the Law of the living God, is smote in
the forehead by the smooth stone taken from a country brook, and lies
there slain by a simple rustic hand; for in such cases the jury fall
back on their original rights, judge of the Fact, the Law, and the
Application of the Law to the Fact, and do justice in spite of the
court, at least prevent injustice.
* * * * *
Now, Gentlemen of the Jury, I will mention some examples of this kind,
partly to show the process by which attempts have been made to
establish despotism, that by the English past you may be warned for
the American present and future; and partly that your function in this
and all cases may become clear to you and the Nation. The facts of
history will show that my fancies are not extravagant.
1. In April, 1554, just three hundred and one years ago this very
month, in England, Sir Nicolas Throckmorton, a gentleman of
distinguished family, was brought to trial for high treason. He had
held a high military office under Henry VIII. and Edward VI., but
"made himself obnoxious to the Papists, by his adherence to some of
the persecuted Reformers." With his two brothers he attended Anne
Askew to her martyrdom when she was burnt for heresy, where they were
told to "take heed to your lives for you are marked men." He was
brought to trial April 17th, 1554, the first year of Bloody Mary. Of
course he was allowed no counsel; the court was insolent, and demanded
his condemnation. But the jury acquitted him; whereupon the _court
shut the twelve jurors in prison_! Four of them made their peace with
the judges, and were delivered: but eight were kept in jail till the
next December, and then fined,--three of them L60 apiece, and five
L225 apiece.
This is one of the earliest cases that I find, where an English jury
in a political trial refused to return such a verdict as the tyrant
demanded.[121]
[Footnote 121: See the case in 1 St. Tr. 869, and 1 Jardine, 40, also
115. The great juridical attacks upon English Liberty were directed
against the Person of the Subject, and appear in the trials for
Treason, but as in such trials the defendant had no counsel, the great
legal battle for English Liberty was fought over the less important
cases where only property was directly concerned. Hence the chief
questions seem only to relate to money.]
2. In September, 1670, William Penn, afterwards so famous, and William
Mead, were brought to trial before the Lord Mayor of London, a
creature of the king, charged with "a tumultuous assembly." For the
Quaker meeting-house in Grace Church Street, had been forcibly shut by
the government, and Mr. Penn had preached to an audience of Dissenters
in the street itself. The court was exceedingly insolent and
overbearing, interrupting and insulting the defendants continually.
The jury found a special verdict--"guilty of speaking in Grace Church
Street." The judge sent them out to return a verdict more suitable to
the desire of the government. Again they substantially found the same
verdict. "This both Mayor and Recorder resented at so high a rate that
they exceeded the bounds of all reason and civility." The Recorder
said, "You shall not be dismissed till we have a verdict that the
court will accept; you shall be locked up without meat, drink, fire,
and tobacco; you shall not think thus to abuse the court; we will have
a verdict by the help of God, or you shall starve for it!" When Penn
attempted to speak, the Recorder roared out, "Stop that prating
fellow's mouth or put him out of court." The jury were sent out a
third time, and kept all night, with no food, or drink, or bed. At
last they returned a verdict of "not guilty," to the great wrath of
the court. _The judge fined the jurors forty marks apiece_, about
$140, _and put them in jail_ until they should pay that sum. The
foreman, Edward Bushel, refused to pay his fine and was kept in jail
until he was discharged on _Habeas Corpus_ in November. Here the
attempt of a wicked government and a cruel judge was defeated by the
noble conduct of the jurors, who dared be faithful to their duty.[122]
[Footnote 122: 6 St. Tr. 951; Dixon's Life of Penn; 22 St. Tr. 925.]
3. In 1681 an attempt was made to procure an indictment against the
Earl of Shaftesbury, for High Treason. The Bill was presented to the
Grand-Jury at London; Chief Justice Pemberton gave them the charge, at
the king's desire--it was Charles II. They were commanded to _examine
the evidence in public_ in the presence of the court, in order that
they might thus be overawed and forced to find a bill, in which case
the court had matters so arranged that they were sure of a conviction.
The court took part in examining the witnesses, attempting to make out
a case against the Earl. But the jury returned the bill with IGNORAMUS
on it, and so found no indictment. The spectators rent the air with
their shouts. The court was in great wrath, and soon after the king
seized the Charter of London, as I have already shown you, seeking to
destroy that strong-hold of Liberty. Shaftesbury escaped--the jury was
discharged. Why did not the court summon another jury, and the chief
justice put his brother-in-law on it? Roger Coke says, "But as the
knights of Malta could make knights of their order for eight pence a
piece, yet could not make a soldier or seaman; so these kings [the
Stuarts] though _they could make what judges they pleased_ to do their
business, _yet could not make a grand-jury_." For the grand-juries
were returned by the Sheriffs, and the sheriffs were chosen by the
Livery, the corporation of London. This fact made the king desire to
seize the charter, _then he could make a grand-jury to suit himself_,
out of the kinsfolk of the judge.[123]
[Footnote 123: 8 St. Tr. 759, see the valuable matter in the notes,
also 2 Hallam, 330 and notes.]
4. Next comes the remarkable case of the Seven Bishops, which I have
spoken of already.[124] You remember the facts, Gentlemen. The king,
James II., in 1688, wishing to overturn Protestantism--the better to
establish his tyranny--issued his notorious proclamation, setting
aside the laws of the land and subverting the English Church. He
commanded all Bishops and other ministers of religion to read the
illegal proclamation on a day fixed. Seven Bishops presented to him a
petition in most decorous language, remonstrating against the
Proclamation, and asking to be excused from reading it to their
congregations. The king consulted with Father Petre,--a Jesuit, his
confessor--on the matter, and had the bishops brought to trial for a
misdemeanor, for publishing "a seditious libel in writing against his
majesty and his government." It was "obstructing an officer."
[Footnote 124: See above, p. 32.]
Then the question before the trial-jury was, Did the seven bishops, by
presenting a petition to the king--asking that they might not be
forced to do an act against the laws of England and their own
consciences--commit the offence of publishing a seditious libel; and,
Shall they be punished for that act? All the judges but two, Holloway
and Powell, said "Yes," and the jury were so charged. But the jury
said, "Not guilty." The consequence was this last of the Stuarts was
foiled in his attempt to restore papal tyranny to England and
establish such a despotism as already prevailed in France and Spain.
Here the jury stood between the tyrant and the Liberties of the
People.
Gentlemen of the Jury, let me show you how that noble verdict was
received. Soon as the verdict was given, says Bishop Burnet, "There
were immediately very loud acclamations throughout Westminster Hall,
and the words 'Not guilty,' 'Not guilty,' went round with shouts and
huzzas; thereat the King's Solicitor moved very earnestly that such as
had shouted in the court might be committed. But the shouts were
carried on through the cities of Westminster and London and flew
presently to Hounslow Heath, where the soldiers in the camp echoed
them so loud that it startled the king."[125] "Every man seemed
transported with joy. Bonfires were made all about the streets, and
the news going over the nation, produced the like rejoicings all
England over. The king's presence kept the army in some order. But he
was no sooner gone out of the camp, than he was followed with an
universal shouting, as if it had been a victory obtained."[126] "When
the Bishops withdrew from the court, they were surrounded by countless
thousands who eagerly knelt down to receive their blessing." Of course
the two judges who stood out for the liberties of the citizens, were
removed from office!
[Footnote 125: 12 St. Tr. 430.]
[Footnote 126: Burnet's Own Times, 470. See also 2 Campbell, Justices,
89, _et seq._]
5. Here is another remarkable case, that of William Owen, in 1752.
These are the facts. In 1750 there was a contested election of a
member of Parliament for Westminster. Hon. Alexander Murray, an
anti-ministerial member of the Commons, was denounced to the House for
his conduct during the election, and it was ordered that he should be
confined a close prisoner in Newgate, and that he receive his sentence
on his knees. He refused to kneel, and was punished with great cruelty
by the bigoted and intolerant House. Mr. Owen, who was a bookseller,
published a pamphlet, entitled "The Case of Alexander Murray, Esq.,"
detailing the facts and commenting thereon. For this an information
was laid against him, charging him with publishing a "wicked, false,
scandalous, seditious, and malicious libel."
On the trial, the Attorney-General, Ryder, thus delivered himself:--