declared "that a treacherous and detestable conspiracy had been formed
for subverting the existing laws and constitution, and for introducing
the system of anarchy and violence which had lately prevailed in
France." Soon after the grand-jury for Middlesex indicted twelve men
for high treason; they were members of some of the Societies mentioned
just now. "The overt act charged against them was, that they had
engaged _in a conspiracy to call a convention_, the object of which
was to bring about a revolution in the country," but it was not
alleged that there was any plot against the King's life, or any
preparation for force.[140] Thomas Hardy, a shoemaker, was first
brought to trial. The trial began October 28, 1794, just sixty years
before Mr. Curtis's grand-jury found a bill against me. Sir John
Scott, the attorney-general, in opening the Prosecution, made a
_speech nine hours' long_, attempting to construct treason out of
belonging to a society. All who belonged to it were to be considered
guilty of "compassing the death of our Lord the King." Chief Justice
Eyre, in addressing the grand-jury, referred to the act of Parliament
as _proof of a conspiracy_.[141] Mr. Erskine defended Hardy in a
speech which "will live forever." Seldom had English Liberty been in
such peril; never did English lawyers more manfully defend it. The
jury, a London jury, returned "NOT GUILTY."[142] Gentlemen, the report
of the trial occupies more than twelve hundred pages in this
volume,[143] and it shook the nation. The British juries for a long
time had slept on their post, and allowed the enemy to enter the camp
and murder its inmates. But the trial of Hardy woke up those heedless
sentinels, and Liberty was safe--in England, I mean.
[Footnote 140: 6 Campbell, 366.]
[Footnote 141: 34 George III. c. 54.]
[Footnote 142: 24 St. Tr. 199; Annual Register, 1794, p. 274; 31 Parl.
Hist. 1062, _et al._]
[Footnote 143: 24 St. Tr.]
(2.) Still the infatuated government went on, not conscious of the
spirit of Anglo-Saxon liberty it had at last roused from long, heavy
and deathlike sleep, and eleven days after brought Mr. John Horne
Tooke to trial. You remember, Gentlemen, that on the first anniversary
of the Declaration of Independence, he was tried for publishing a
notice of a meeting which raised L100 for the widows and orphan
children of our citizens who fell at Lexington on the 19th of April,
1775, and for that offence was punished with fine and imprisonment.[144]
After the acquittal of Hardy, the government brought Mr. Tooke to
trial, relying on the same evidence to convict him which had so
signally failed a fortnight before. The overt act relied on to convict
him of "levying war" and "compassing the death of our Lord the King,"
was membership of a Reform society! Mr. Erskine defended him: "I
_will_ assert the freedom of an Englishman; I will maintain the
dignity of man, I will vindicate and glory in the principles which
raised this country to her preeminence among the nations of the earth;
and as she shone the bright star of the morning to shed the light of
liberty upon nations which now enjoy it, so may she continue in her
radiant sphere to revive the ancient privileges of the world which
have been lost, and still to bring them forward to tongues and people
who have never known them yet, in the mysterious progression of
things."[145]
[Footnote 144: See above, p. 35.]
[Footnote 145: 25 St. Tr. 1.]
Gentlemen, Horne Tooke was acquitted--the government routed and
overwhelmed with disgrace, gave up the other prosecutions, and the
treason trials ended. Even George III. had wit enough left to see the
blunder which his ministers--the Slave Power of England in 1794--had
committed, and stammered forth, "You have got us into the wrong box my
Lord [Loughborough]; you have got us into the wrong box. Constructive
treason won't do my Lord; constructive treason won't do." By and by,
Gentlemen, other men, wiser than poor feeble-minded George III., will
find out that "constructive _misdemeanors_ won't do."
Of these trials, Mr. Campbell, himself a Judge, declares, "This [the
conduct of the government] was more exceptionable in principle than
any thing done during the reign of Charles II.; for then the
fabricators of the Popish Plot did not think of corroborating the
testimony of Oates and Bedloe by a public statute; and then, if the
facts alleged had been true, they would have amounted to a plain case
of actual treason; whereas here, admitting the truth of all the facts
alleged, there was no pretence for saying that any treason
contemplated by the legislature had been committed. If this scheme had
succeeded, not only would there have been a sacrifice of life contrary
to law, but all political 'agitation' must have been extinguished in
England, as there would have been a precedent for holding that the
effort to carry a measure by influencing public opinion through the
means openly resorted to in our days, is a 'compassing the death of
the sovereign.' The only chance of escaping such servitude would have
been civil war. It is frightful to think of the perils to which the
nation was exposed.... But Erskine and the crisis were framed for each
other.... His contemporaries, who without him might have seen the
extinction of freedom among us, saw it, by his peculiar genius, placed
on an imperishable basis."[146] But Erskine without a Jury, Gentlemen,
what could he have done? He could only wail, O Jerusalem,
Jerusalem--when she would not!
[Footnote 146: 5 Campbell, 367.]
* * * * *
Now, Gentlemen, let us come over to this side of the water. I shall
mention some cases in which the Jury have manfully done their duty,
some others in which they have allowed themselves to be browbeaten and
bullied by a judge, and so have done the greatest wrong.
1. First look at the famous case of John Peter Zenger.[147] Here are
the facts. In 1733, Mr. Zenger established a newspaper in New
York--there was only one there before--called the "New York Weekly
Journal," "containing the freshest Advices foreign and domestic." In
some numbers of this he complained, modestly enough, of various
grievances in the administration of the Province, then ruled by
Governor Cosby. He said, "as matters now stand their [the People's]
liberties and properties are precarious, and that Slavery is likely
to be entailed on them and their posterity, if some past things be not
amended." He published the remarks of some one who said he "should be
glad to hear that the Assembly would exert themselves, as became them,
by showing that they have the interest of their country more at heart
than the gratification of any private view of any of their members, or
being at all affected by the smiles or frowns of a Governor, both
which ought equally to be despised when the interest of the country is
at stake." "We see men's deeds destroyed, judges arbitrarily
displaced, new courts erected without consent of the legislature, by
which, it seems to me, trials by juries are taken away when a Governor
pleases." "Who, then, in that province can call any thing his own, or
enjoy any liberty longer than those in the administration will
condescend to let him do it?"
[Footnote 147: 3 Doc. Hist. N.Y. p. 340, 341.]
In October, 1734, Chief Justice de Lancey gave a charge to the
Grand-Jury, urging them to indict Mr. Zenger for a libel. He says, "It
is a very high aggravation of a libel that it tends to scandalize the
government by _reflecting on those who are intrusted with the
administration of public affairs_, which ... has a direct tendency to
breed in the public a dislike of their Governors." "If he who hath
either read a libel himself, or hath heard it read by another, _do
afterwards_ maliciously _read or report any part of it in the presence
of others_, or _lend or show it to another, he is guilty of an
unlawful publication of it._"
But the Judge had not packed the Grand-Jury with sufficient care, and
so no bill was found. Thereupon the Governor's Council sent a message
to the General Assembly of New York, complaining of Mr. Zenger's
Journal as tending "to alienate the affections of the people of this
province from his majesty's government," and asking them to inquire
into the said papers and the authors thereof; the Council required
that the obnoxious numbers might "be _burned by the hands of the
common hangman or whipper, near the pillory_." The Assembly let them
lie on the table. The Court of Quarter-sessions was applied to to burn
the papers; but as that body refused, the sheriff "delivered them unto
the hands of _his own negro_, and ordered him to put them into the
fire, which he did."
Mr. Zenger was imprisoned by a warrant from the Governor, a _lettre de
cachet_, and "for several days denied the use of pen, ink, and paper,
and the liberty of speech with any person." An _ex officio_
information was brought against him, charging him with "malicious and
seditious libel." His counsel, Messrs. Alexander and Smith, took
exceptions to the proceedings. The Chief Justice would neither hear
nor allow the exceptions, "for" said he, "you thought to have gained a
great deal of applause and popularity by opposing this court ... but
you have brought it to that point, that either we must go from the
bench or you from the bar, therefore we exclude you." So "for contempt
of court" their names were struck from the list of attorneys. The case
came on for trial. The clerk of the Court sought to pack his jury, and
instead of producing the "Freeholders' book" to select the Jury from,
presented a list of forty-eight persons which he said he had taken
from that book. This Honorable Court knows how easy it is to violate
the law in summoning jurors; none knew it better a hundred and twenty
years ago. Of the 48 some were not freeholders at all; others held
commissions and offices at the Governor's pleasure; others were of the
late displaced magistrates who had a grudge against Mr. Zenger for
exposing their official conduct; besides, there were the governor's
baker, tailor, shoemaker, candle-maker, and joiner. But it does not
appear that this Judge had any Brother-in-law on the list; corruption
had not yet reached that height. But that wicked list was set aside
after much ado, and a Jury summoned in the legal manner. It may
astonish the Court but it was really done--and a Jury summoned
according to law. The trial went on. Andrew Hamilton of Philadelphia
defended Mr. Zenger with law, wit, learning, and eloquence. He
admitted the fact of printing and publishing the documents, and rested
the defence on the truth of their assertions. The Attorney-General,
Mr. Bradley, said, "supposing they were true, the law says that they
are not the less libellous for that: nay, indeed, the law says, _their
being true is an aggravation of the crime_." He "did not know what
could be said in defence of a man that had so notoriously scandalized
the governor and principal magistrates ... by _charging them with
depriving the people of their rights and liberties, and taking away
trials by juries, and in short putting an end to the law itself_. If
this was not a libel, he did not know what was one. Such persons as
did take these liberties ... ought to suffer for stirring up sedition
and discontent among the people."
The Chief Justice declared, "It is far from being a justification of a
libel that the contents thereof are true ... since the _greater
appearance there is of truth, so much the more provoking is it_!" "The
jury may find that Mr. Zenger printed and published these papers, and
_leave it to the court to judge whether they are libellous_!"
That would be to put the dove's neck in the mouth of the fox, and
allow him to decide whether he would bite it off. Mr. Hamilton
replied:--
"This of leaving it to the judgment of the court whether the
words are libellous or not, in effect renders Juries useless
(to say no worse), in many cases." "If the faults, mistakes,
nay even the vices of such a person be private and personal,
and don't affect the peace of the public, or the liberty or
property of our neighbor, it is unmanly and unmannerly to
expose them, either by word or writing. But, when a ruler of
the people brings his personal failings, but much more his
vices, into his administration, and the people find
themselves affected by them, either in their liberties or
properties, that will alter the case mightily; and all the
high things that are said in favor of rulers and of
deputies, and upon the side of power, will not be able to
stop people's mouths when they feel themselves oppressed, I
mean in a free government. It is true _in times past it was
a crime to speak truth_; and in that terrible court of
Star-Chamber many worthy and brave men suffered for so
doing; and yet even in that court, and in those bad times, a
great and good man durst say, what I hope will not be taken
amiss of me to say in this place, namely, 'The practice of
informations for libels is a sword in the hands of a wicked
king, and an arrant coward, to cut down and destroy the
innocent; the one cannot because of his high station, and
the other dares not, because of his want of courage, redress
himself in another manner.'
"It is a right which all persons claim and are entitled to,
to complain when they are hurt; they have a right publicly
to remonstrate against the abuses of power, in the strongest
terms; to put their neighbors upon their guard against the
craft or open violence of men in authority; and to assert
with courage the sense they have of the blessings of
liberty, the value they put upon it, and their resolution at
all hazards to preserve it as one of the greatest blessings
Heaven can bestow." "It is a duty which all good men owe to
their country, to guard against the unhappy influence of ill
men when intrusted with power, and especially against their
creatures and dependants, who as they are generally more
necessitous, are surely more covetous and cruel."
According to the Judge the Jury had only one question before them,
"Did Zenger publish the words charged in the information?" That fact
was clear; nay, he did not himself deny it. He confessed it in court.
But the jury fell back on their rights and duties to decide the
Question of Fact, of Law, and of the Application of the Law to the
Fact, and returned "NOT GUILTY," "upon which there were three huzzas
in the Hall." Had this Honorable Court been then in existence I
suppose it would have talked of indicting the jurors for "perjury,"
and would doubtless have had its labor for its pains. For the Common
Council of New York presented Mr. Hamilton with a costly gold box and
the freedom of the city. Gentlemen, this took place one hundred and
twenty years ago. Forty years before the Revolution, Andrew Hamilton
helped lay the "brilliant foundation of liberty," whereon another
Hamilton was also to raise up noble walls of freedom. Gentlemen of the
Jury, by Wisdom is a house builded, but the foolish plucketh it down
with her own hands. Will you allow that to be done? What if the jury
in 1735 had been faithless? The axe which smote down Zenger in New
York, bloody and cruel, would have shorn off the heads of Otis and
Quincy, and Adams and Hancock at Boston; the family of Scroggs alone
would be held in honor in New England.[148]
[Footnote 148: 17 St. Tr. 675.]
Gentlemen, it once happened in New York that Governor Nicholson was
offended with one of the clergymen of the Province. He met him on the
road one day, and "as it was usual with him (under the protection of
his commission) used the poor minister with the worst of language,
threatened to cut off his ears, slit his nose, and at last to shoot
him through the head." The minister, "being a reverend man, continued
all this time uncovered in the heat of the sun, until he found an
opportunity to fly for it, and coming to a neighbor's house fell ill
of a fever and wrote for a doctor," relating the facts and concluding
that the governor was crazy, for no man in his right mind would behave
so ill. The doctor showed the letter; the governor brought a
prosecution against the minister for publishing a "scandalous, wicked,
and seditious libel." No doubt he could have found a judge even then
who would twist the law so as to make the letter "sedition" and
"libel;" nay, perhaps he could construct a jury so as to secure a
conviction, but before it reached trial the prosecution was stopped by
the order of Queen Anne.
2. In 1816, in Massachusetts, there occurred the celebrated case of
Commonwealth _vs._ Bowen, to which I shall again refer in a subsequent
part of this defence. These are the facts. In September, 1815,
Jonathan Jewett was convicted of murder in Hampshire county,
Massachusetts, and sentenced to be hanged on the 9th of the following
November. He was confined at Northampton, and hung himself in his cell
on the night preceding the morning appointed for his public execution.
George Bowen was confined in the same jail, in an apartment adjacent
to Jewett's, and in such a situation that they could freely converse
together. Bowen repeatedly and frequently advised and urged Jewett to
destroy himself and thus disappoint the sheriff and the expectant
people. He did so, and the coroner's jury returned that he committed
suicide. But nevertheless, Bowen was indicted for the wilful murder of
Jewett. It was charged that he "feloniously, wilfully, and of his
malice aforethought, did counsel, hire, persuade, and procure the said
Jewett the said felony and murder of himself to do and commit;" or
that he himself murdered the said Jewett by hanging him.
At the trial Attorney-General Perez Morton contended that Bowen "was
guilty of _murder as principal_;" and he cited and relied chiefly on
the following authority from the Reports of our old friend Kelyng.
"Memorandum, that my brother _Twisden_ showed me a report
which he had of a charge given by Justice _Jones_ to the
grand-jury, at the King's Bench barre, _Michaelmas Term_, 9
_Car._ 1, in which he said, that poisoning another was
murder at common law. And the statute of 1 _Ed._ 6, was but
declaratory of the common law, and an affirmation of it. If
one drinks poison by the provocation of another, and dieth
of it, this is murder in the person that persuaded it. And
he took this difference. If A. give poison to J.S. to give
to J.D., and J.S. knowing it to be poison, give it to J.D.
who taketh it in the absence of J.S., and dieth of it; in
this case J.S., who gave it to J.D., is principal; and A.
who gave the poison to J.S., and was absent when it was
taken, is but accessory before the fact. But if A. buyeth
poison for J.S., and J.S., in the absence of A., taketh it
and dieth of it, in this case A., though he be absent, yet
he is principal. So it is if A. giveth poison to B. to give
unto C.; and B., not knowing it to be poison, but believing
it to be a good medicine, giveth it to C., who dieth of it;
in this case A., who is absent, is principal, or else a man
should be murdered, and there should be no principal. For
B., who knoweth nothing of the poison, is in no fault,
though he gave it to C. So if A. puts a sword into the hands
of a madman, and bids him kill B. with it, and then A. goeth
away, and the madman kills B. with the sword, as A.
commanded him, this is murder in A., though absent, and he
is principal; for it is no crime in the madman, who did the
fact by reason of his madness."[149]
[Footnote 149: See the case in Kelyng's Reports (London, 1708), p. 52.
The opinion of Justice _Jones_ was only the charge of an inferior
judge given to the grand-jury in 1634.]
Mr. Morton also laid down this as law, "_the adviser of one who
commits a felony of himself is a murderer_." He might have added, "the
adviser of one who breaks into his own house is a burglar."
Chief Justice Parker--who once declared that the jury had nothing to
do with the harshness of a law--charged the jury that the important
question for them was, Did Bowen's advice induce Jewett to kill
himself? if so, they were to find him guilty of wilful murder! "The
community has an interest _in the public execution_ of criminals [the
crowd having an _interest in the spectacle_] and to take such an one
out of the reach of the law [by advising him to self-destruction] is
no trivial offence." "_You are not to consider the atrocity of this
offence in the least degree diminished by the consideration that
justice was thirsting for its sacrifice_; and that but a small portion
of Jewett's earthly existence could, in any event, remain to
him."[150]
[Footnote 150: 13 Mass. Rep. 356.]
There was no doubt that Bowen advised Jewett to commit suicide; but
the jury, in defiance of the judge's charge and Mr. Kelyng's law,
nevertheless returned "NOT GUILTY."
Here, Gentlemen, is a remarkable instance of a judge, in private a
benevolent man, perverting his official power, and constructing the
crime of murder out of advice given to a man to anticipate a public
execution by privately hanging himself! The law relied on was the
Memorandum of the charge to a grand-jury made by a judge who
notoriously broke the fundamental laws of England, by declaring that
the king had a constitutional right to imprison, at will and as long
as he liked, any of his subjects without trial, even members of
Parliament for words uttered in public debate; and also the right to
levy ship-money contrary to the Acts of Parliament. This charge was
made in the tyrannical reign of Charles I. in 1634, by a tyrannical
judge. There was no report, only _a memorandum_ of it, and that not
printed till seventy-four years after! It had not the force of law
even then: it was only the memorandum of the "opinion" of a single
judge, not even the "opinion" of the full court. The memorandum is
contained in Kelyng's Book, which Lord Campbell calls "a folio volume
of decisions in criminal cases, which are of no value whatever, except
to make us laugh at some of the silly egotisms with which they
abound."[151] On such authority in 1816 would even a Massachusetts
court, with a judge who was a kindly man in private, dash away the
life of a fellow-creature,--with such mockery of law! But, Gentlemen,
the jury at that time did not slumber; they set the matter right, and
did justice spite of Judge Kelyng and his "law." They made nothing of
the judge's charge!
[Footnote 151: 2 Campbell, Judges, 406.]
* * * * *
Gentlemen of the Jury, I will now mention some cases of gross
injustice perpetrated by the Federal Courts of the United States.
The tenth article of amendments to the Constitution provides that
"powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the People." The Constitution itself confers no
Common Law Jurisdiction on the Government. Neither the People nor
their Representatives had ever decreed the Common Law of England to be
a part of the law of the United States. Yet, spite of the absence of
positive enactment and the express words of the above amendment to the
Constitution, the Supreme Court at once assumed this jurisdiction. In
1799, Chief Justice Ellsworth said, "the Common Law of this country
remains the same as it was before the Revolution;"[152] and proceeded
on that supposition to exercise the powers of English Judges of Common
Law, undertaking to punish men for offences which no Act of Congress
forbid. You see at once what monstrous tyranny would follow from that
usurpation. Had the English Common Law power of punishing for
"seditious libel," for example, been allowed to the Federal court,
Gentlemen, you know too well what would follow. But this monstrous
assumption was presently brought to an ignominious end; and strange as
it may appear, by one of the judges of the court itself. Samuel Chase
of Maryland, one of the signers of the Declaration of Independence,
had been an Anti-Federalist and a strong State-Right's man, as such
insisting on a strict construction of the Constitution. Singular as it
may appear he was made a Judge in 1796, and what is yet more
surprising, in 1798, declared "the United States as a Federal
government, had no Common Law," and thus ended this claim.[153] But
tyranny did not end; nay, he himself, a man of uncommon powers and
legal attainments, became a most atrocious example of Judicial
despotism.
[Footnote 152: Wharton, State Trials, 653. See too Virginia
Resolutions (Richmond, 1850), Preface, xiii. _et seq._; Virginia
Resolutions by Madison, and his Report thereon; Kentucky Resolutions
by Jefferson, in 4 Eliot's Debates (1836).]
[Footnote 153: Wharton, 197; 3 Dallas, 384; see 5 Hildreth, 230.]
1. In 1791 a direct tax was levied by Act of Congress on all lands and
houses; excise officers were to ascertain their value. The "Alien and
Sedition Laws" were also passed the same year. The execution of the
law relative to the direct tax was resisted in Northampton county,
Penn., and some prisoners rescued from an officer of the United
States. The President, Mr. Adams, issued his proclamation. In 1799
John Fries was arrested on the charge of treason. The overt act
alleged was resistance to that one special law of Congress. Judge
Iredell charged the Grand-Jury, "You have heard the government as
grossly abused as if it had been guilty of the vilest tyranny." Had he
read the private correspondence of the Cabinet, he might have found
other specimens of "abuse." He defended both the Alien and Sedition
Laws.--They were "constitutional" and "proper."[154]