1. In 1410 the government made a decree "that whatsoever they were that should rede the Scriptures in the mother tongue, they should forfeit land, catel, body, lif, and godes from their heyres forever, and so be condempned for heretykes to God, enemies to the crowne, and most errant traiters to the land." The next year, in one day thirty-nine persons were first hanged and then burned for this "crime."[81]

[Footnote 81: 1 St. Tr. 252.]

2. In 1590, Mr. Udall, a Puritan minister, published a book, "Demonstrations of Discipline," not agreeable to the authorities. He was brought to a trial for a Felony,—not merely a "misdemeanor." The jury were ordered by the judge to find him guilty of that crime if they were satisfied that he published the book,—for the court were to judge whether the deed amounted to that crime! He was found "guilty," and died in jail after nearly three years of cruel confinement.[82]

[Footnote 82: 1 St. Tr. 1271; 1 Neal's Puritans (N.Y. 1844), 190. See 16 Parl. Hist. 1276, where Mr. Dunning says this is the first example of such a charge to a jury.]

3. In 1619 one Williams of Essex wrote a book explaining a passage in the book of Daniel as foretelling the death of James I. in 1621. He inclosed the manuscript in a box, sealed it, and secretly conveyed it to the king. For this he was tried for high treason, and of course executed. "Punitur Affectus, licet non sequatur Effectus," said the court, for "Scribere est agere," "Punish the wish though the object be not reached," for "writing is doing!"[83]

[Footnote 83: 2 St. Tr. 1085.]

4. In 1664 Mr. Keach, a Baptist, published a "Childs' Instructer, or a New and Easy Primmer," in which he taught the doctrines of his sect, "that children ought not to be baptized" but only adults; "that laymen may preach the gospel." He was brought before Lord Chief Justice Hyde, who after insulting the prisoner, thus charged the grand-jury:—"He is a base and dangerous fellow; and if this be suffered, children by learning of it will become such as he is, and therefore I hope you will do your duty." Of course such a jury indicted him. The "trial" took place before Judge Scroggs; the Jury were at first divided in opinion. "But," said the Judge, "you must agree!" So they found him guilty. He was fined "L20, twice set in the pillory, and bound to make public submission."[84]

[Footnote 84: 7 St. Tr. 687.]

5. In 1679 George Wakeman and others were tried for high treason before Scroggs, whose conduct was atrocious, and several pamphlets were published commenting on the ridiculous and absurd conduct of this functionary, "Lord Chief Justice Scroggs." One Richard Radley in a bantering talk had bid another man "Go to Weal Hall, to my Lord Scroggs, for he has received money enough of Dr. Wakeman!" Radley was indicted for "speaking scandalous words of Chief Justice Scroggs." Whereupon at the opening of the court that eminent officer, who did not disdain to wreak public and judicial vengeance on heads that wrought his private and personal grief, made a speech setting forth his magisterial opinions on the liberty of the press. Doubtless this court knows original authority for the opinions they follow; but for your instruction, Gentlemen of the Jury, I will give you the chief things in the judicial speech of Scroggs, Lord Chief Justice of the Supreme Court of England in 1679.[85]

[Footnote 85: 6 St. Tr. 701; see Dunning in 16 Parl. Hist. 1276, et seq.]

"For these hireling scribblers who traduce it [the fairness and equality of the trial in which he had been notoriously unfair and unequal], who write to eat, and lie for bread, I intend to meet with them another way; for they are only safe while they can be secret; but so are vermin, so long as they can hide themselves.... They shall know that the law wants not the power to punish a libellous and licentious press, nor I a resolution to exact it. And this is all the answer is fit to be given (besides a whip) to these hackney writers." "However, in the mean time, the extravagant boldness of men's pens and tongues is not to be endured, but shall be severely punished; for if once causes come to be tried with complacency to particular opinions, and shall be innocently censured if they go otherwise, public causes shall all receive the doom as the multitude happen to be possessed; and at length any cause shall become public ... at every session the Judges shall be arraigned, the Jury condemned, and the verdicts overawed to comply with popular wish and indecent shouts."

"There are a set of men ... that too much approve and countenance such vulgar ways, ... that embrace all sorts of informations, true or false, likely or impossible, nay though never so silly and ridiculous, they refuse none; so shall all addresses be made to them, and they be looked on as the only patrons of religion and government!"

His associates chimed in with accordant howl. Puny Judge Jones declared,—

"We have a particular case here before us, as a matter of scandal against a great Judge, the greatest Judge in the kingdom, in criminal causes [the Lord Chancellor Nottingham was greater in civil causes]; and it is a great and an high charge upon him. And certainly there was never any age, I think, more licentious than this in aspersing governors, scattering of libels and scandalous speeches against those that are in authority: and without all doubt it doth become the court to show their zeal in suppressing it." [It was 'resisting an officer.'] "That trial [of Dr. Wakeman] was managed with exact justice and perfect integrity. And therefore I do think it very fit that this person be proceeded against by an information, that he may be made a public example to all such as shall presume to scandalize the government, and the governors, with any false aspersions and accusations."

Accordingly Mr. Radley, for that act, was convicted of speaking "scandalous words against the Lord Chief Justice Scroggs" and fined L200.[86]

[Footnote 86: 7 St. Tr. 701.]

Mr. Hudson says of the Star-Chamber, "So tender the court is of upholding the honor of the sentence, as they will punish them who speak against it with great severity."[87]

[Footnote 87: In 2 Collectanea Juridica, 228.]

6. In 1680 Benjamin Harris, a bookseller, sold a work called "An Appeal from the country to the city for the Preservation of his Majesty's Person, Liberty, Property, and the Protestant Religion." He was brought to trial for a libel, before Recorder Jeffreys and Chief Justice Scroggs who instructed the jury they were only to inquire if Harris sold the book, and if so, find him "guilty." It was for the court to determine what was a libel. He was fined five hundred pounds and placed in the pillory; the Chief Justice wished that he might be also whipped.[88]

[Footnote 88: 7 St. Tr. 925.]

7. The same year Henry Carr was brought to trial. He published a periodical—"the Weekly Packet of advice from Rome, or the History of Popery"—hostile to Romanism. Before the case came to court, Scroggs prohibited the publication on his own authority. Mr. Carr was prosecuted for a libel before the same authority, and of course found guilty. The character of that court also was judgment against natural right. Jane Curtis and other women were in like manner punished for speaking or publishing words against the same "great judge."[89] And it was held to be a "misdemeanor" to publish a book reflecting on the justice of the nation—the truer the book the worse the libel! It was "obstructing an officer," and of course it was a greater offence to "obstruct" him with Justice and Truth than with wrong and lies. The greater the justice of the act the more dangerous the "crime!" If the language did not hit any one person it was "malice against all mankind."

[Footnote 89: 7 St. Tr. 1111, 959; 4 Parl. Hist. 1274.]

8. In 1684 Sir Samuel Barnardiston was brought to trial charged with a "High Misdemeanor." He had written three private letters to be sent—it was alleged—by post to his friend, also a private man. The letters do not appear designed for any further publication or use; they related to matters of news, the events of the day and comments thereon, and spoke in praise of Algernon Sidney and Lord Russell who were so wickedly beheaded about the time the letters were written. It would require a microscopic eye to detect any evil lurking there. Jeffreys presided at the trial, and told the jury:—

"The letters are factious, seditious, and malicious letters, and as base as the worst of mankind could ever have invented." "And if he be guilty of it—the greater the man is the greater the crime, and the more understanding he has, the more malicious he seems to be; for your little ordinary sort of people, that are of common mean understanding, they may be wheedled and drawn in, and surprised into such things; but men of a public figure and of some value in the world that have been taken to be men of the greatest interest and reputation in a party, it cannot be thought a hidden surprise upon them; no, it is a work of time and thought, it is a thing fixed in his very nature, and it shows so much venom as would make one think the whole mass of his blood were corrupt." "Here is the matter he is now accused of, and here is in it malice against the king, malice against the government, malice against both Church and State, malice against any man that bears any share in the government, indeed malice against all mankind that are not of the same persuasion with these bloody miscreants." "Here is ... the sainting of two horrid conspirators! Here is the Lord Russell sainted, that blessed martyr; Lord Russell, that good man, that excellent Protestant, he is lamented! And here is Mr. Sidney sainted, what an extraordinary man he was! Yes, surely he was a very good man—and it is a shame to think that such bloody miscreants should be sainted and lamented who had any hand in that horrid murder [the execution of Charles I.] and treason ... who could confidently bless God for their being engaged in that good cause (as they call it) which was the rebellion which brought that blessed martyr to his death. It is high time for all mankind that have any Christianity, or fear of Heaven or Hell, to bestir themselves, to rid the nation of such caterpillars, such monsters of villany as those are!"

Of course the packed jury found him guilty; he was fined L10,000.[90]

[Footnote 90: 7 St. Tr. 1333.]

Gentlemen of the Jury, such judges, with such kings and cabinets, have repeatedly brought the dearest rights of mankind into imminent peril. Sad indeed is the condition of a nation where Thought is not free, where the lips are sewed together, and the press is chained! Yet the evil which has ruined Spain and made an Asia Minor of Papal Italy, once threatened England. Nay, Gentlemen of the Jury, it required the greatest efforts of her noblest sons to vindicate for you and me the right to print, to speak, to think. Milton's "Speech for the Liberty of unlicensed Printing" is one monument of the warfare which lasted from Wicliffe to Thomas Carlyle. But other monuments are the fines and imprisonment, the exile and the beheading of men and women! Words are "sedition," "rebellion," "treason;" nay, even now at least in New England, a true word is a "Misdemeanor," it is "obstructing an officer." At how great cost has our modern liberty of speech been purchased! Answer John Lilburne, answer William Prynn, and Selden, and Eliot, and Hampden, and the other noble men who

——"in the public breach devoted stood, And for their country's cause were prodigal of blood."

Answer Fox and Bunyan, and Penn and all the host of Baptists, Puritans, Quakers, martyrs, and confessors—it is by your stripes that we are healed! Healed! are we healed? Ask the court if it be not a "misdemeanor" to say so!

A despotic government hates implacably the freedom of the press. In 1680 the Lord Chief Justice of England declared the opinion of the twelve judges "indeed all subscribe that to print or publish any news-books, or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing." "And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority;" "they shall be punished if they do it without authority, though there is nothing reflecting on the government."[91] Judge Scroggs was right—it was "resisting an officer," at least "obstructing" him in his wickedness. In England, says Lord Campbell, the name and family of Scroggs are both extinct. So much the worse for you and me, Gentlemen. The Scroggses came over to America; they settled in Massachusetts, they thrive famously in Boston; only the name is changed.

[Footnote 91: 7 St. Tr. 1127.]

In 1731 Sir Philip Yorke, attorney-general, solemnly declared that an editor is "not to publish any thing reflecting on the character and reputation and administration of his Majesty or his Ministers;" "if he breaks that law, or exceeds that liberty of the press he is to be punished for it." Where did he get his law—in the third year of Edward I., in A.D. 1275! But that statute of the Dark Ages was held good law in 1731; and it seems to be thought good law in 1855! And the attorney who affirmed the atrocious principle, soon became Chief Justice, a "consummate judge," a Peer, Lord Hardwicke, and Lord Chancellor![92] Lord Mansfield had not a much higher opinion of the liberty of the press; indeed, in all libel cases, he assumed it was exclusively the function of the judges to determine whether the words published contained malicious or seditious matter, the jury were only to find the fact of publication.[93] Thus the party in power with their Loughboroughs, their Thurlows, their Jeffreys, their Scroggs—shall I add also American names—are the exclusive judges as to what shall be published relating to the party in power—their Loughboroughs, their Thurlows, their Jeffreys and their Scroggs, or their analogous American names! It was the free press of England—Elizabeth invoked it—which drove back the "invincible Armada;" this which stayed the tide of Papal despotism; this which dyked the tyranny of Louis XIV. out from Holland. Aye, it was this which the Stuarts, with their host of attendants, sought to break down and annihilate for ever;[94] which Thurlow and Mansfield so formidably attacked, and which now in America—but the American aspect of the matter must not now be looked in the face.

[Footnote 92: 17 St. Tr. 674; 5 Campbell, 57; Hildreth's Despotism, 199.]

[Footnote 93: 20 St. Tr. 900. But see 28 St. Tr. 595, and 16 Parl. Hist. 1211.]

[Footnote 94: For the frequency of trials for words spoken in Charles II.'s reign of terror, see the extracts from Narcissus Luttrel's Brief Historical Relation, 10 St. Tr. 125.]

* * * * *

But spite of all these impediments in the way of liberty, the voice of humanity could not be forever silenced. Now and then a virtuous and high-minded judge appeared in office—like Hale or Holt, Camden or Erskine. Even in the worst times there were noble men who lifted up their voices. Let me select two examples from men not famous, but whose names, borne by other persons, are still familiar to this court.

In 1627 Sir Robert Phillips, member for Somersetshire, in his place in Parliament, thus spoke against the advance of despotism:[95]—

[Footnote 95: 1 Rushworth, 502.]

"I read of a custom among the old Romans, that once every year they had a solemn feast for their slaves; at which they had liberty, without exception, to speak what they would, thereby to ease their afflicted minds; which being finished, they severally returned to their former servitude. This may, with some resemblance and distinction, well set forth our present state; where now, after the revolution of some time, and grievous sufferance of many violent oppressions, we have, as those slaves had, a day of liberty of speech; but shall not, I trust, be hereafter slaves, for we are free: yet what new illegal proceedings our estates and persons have suffered under, my heart yearns to think, my tongue falters to utter. They have been well represented by divers worthy gentlemen before me; yet one grievance, and the main one, as I conceive, hath not been touched, which is our Religion: religion, Mr. Speaker, made vendible by commission, and men, for pecuniary annual rates, dispensed withal; Judgments of law against our liberty there have been three; each latter stepping forwarder than the former, upon the Rights of the Subject; aiming, in the end, to tread and trample underfoot our law, and that even in the form of law."

"The first was the Judgment of the Postnati, (the Scots,) ... The second was the Judgment upon Impositions, in the Exchequer Court by the barons; which hath been the source and fountain of many bitter waters of affliction unto our merchants." "The third was that fatal late Judgment against the Liberty of the Subject imprisoned by the king, argued and pronounced but by one judge alone." "I can live, although another who has no right be put to live with me; nay, I can live although I pay excises and impositions more than I do; but to have my liberty, which is the soul of my life, taken from me by power; and to have my body pent up in a gaol, without remedy by law, and to be so adjudged: O improvident ancestors! O unwise forefathers! To be so curious in providing for the quiet possession of our lands, and the liberties of Parliament; and to neglect our persons and bodies, and to let them lie in prison, and that durante bene placito, remediless! If this be law, why do we talk of liberties? Why do we trouble ourselves with a dispute about law, franchises, property of goods, and the like? What may any man call his own, if not the Liberty of his Person? I am weary of treading these ways."[96]

[Footnote 96: 2 Parl. Hist. 232. See also 441, 471. He had been thrown into the Tower by James in 1624. Cabbala (3d Ed.), 311.]

In 1641 Sir Philip Parker, Knight of the Shire for Suffolk, in his place in Parliament, thus spoke:—

"The cries of the people have come up to me; the voice of the whole nation tingles in my ears." "'Tis true, I confess, we have tormented ourselves with daily troubles and vexations, and have been very solicitous for the welfare of the Commonwealth; but what have we performed, what have we perfected? Mr. Speaker, excuse my zeal in this case; for my mouth cannot imprison what my mind intends to let out; neither can my tongue conceal what my heart desires to promulge. Behold the Archbishop [Laud], that great incendiary of this kingdom, lies now like a firebrand raked up in the embers; but if ever he chance to blaze again I am afraid that what heretofore he had but in a spark, he will burn down to the ground in a full flame. Wherefore let us begin, for the kingdom is pregnant with expectation on this point. I confess there are many more delinquents, for the judges and other knights walk in querpo; but they are only thunderbolts forged in Canterbury's fire."[97]

[Footnote 97: Parl. Hist. 867.]

Six of the wicked judges were soon brought to trial.[98]

[Footnote 98: 1 Rushworth, 502.]

* * * * *

This same threefold experiment of despotism which was attempted in England, was tried also in America by the same tyrannical hand. Here, also, the encroaching power put creatures of its arbitrary will in judicial offices; they then by perverting the laws, punished the patriots, and next proceeded to destroy the best institutions of the land itself. Here I shall take but a few examples, selected from the colonial history of our own New England.

After capturing the great fortress of freedom at home, by taking away the charter of London, Charles proceeded to destroy the freedom of the colonies; the Charter of Massachusetts was wrested from us on a quo warranto in 1683,[99] and the colony lay at the feet of the monarch. In privy council it had already been determined that our rights should be swept into the hands of some greedy official from the court.[100] In 1686 James II. sent Sir Edmund Andros to New England as a "Commissioner" to destroy the liberty of the people. He came to Boston in the "Kingfisher, a fifty gun ship," and brought two companies of British soldiers, the first ever stationed in this town to dragoon the people into submission to an unrighteous law. Edward Randolph, the most determined enemy of the colony, greedily caressing the despotic hands that fed him, was his chief coadjutor and assistant, his secretary, in that wicked work. Andros was authorized to appoint his own council, and with their consent enact laws, levy taxes, to organize and command the militia. He was to enforce the hateful "Acts of Trade." He appointed a council to suit the purpose of his royal master, to whom no opposition was allowed. Dudley, the new Chief Justice, told the people who appealed to Magna Charta, "they must not think the privileges of Englishmen would follow them to the end of the world." Episcopacy was introduced; no marriages were to "be allowed lawful but such as were made by the minister of the Church of England." Accordingly, all must come to Boston to be married, for there was no Episcopal minister out of its limits. It was proposed that the Puritan Churches should pay the Episcopal salary, and the Congregational worship be prohibited. He threatened to punish any man "who gave two pence" toward the support of a Non-conformist minister. All fees to officers of the new government were made exorbitantly great. Only one Probate office was allowed in the Province, that was in Boston; and one of the creatures of despotic power was, prophetically, put in it. Andros altered the old form of oaths, and made the process of the courts to suit himself.

[Footnote 99: See the steps of the process in 1 Hutchinson, (Salem, 1795,) 297; 8 St. Tr. 1068, note.]

[Footnote 100: Barillon to Louis XIV. in Fox's Appendix, p. vii., et seq. In 1685 Halifax, who had been friendly to the rights of the colonies, was dismissed from his office; Sunderland, their enemy, had a pension from Louis XIV. of L5,000 or L6,000 a year; p. cxxvii., cxxx. et seq., cxliii., cxlviii. Not the last instance of a high functionary pensioned by a foreign hand!]

He sought to wrest the charters from the Colonies; that of Rhode Island fell into his hands; Connecticut escaped by a "miracle:"

"The Charter-Oak—it was the tree That saved our sacred Liberty."

The Charter government of Plymouth was suspended. Massachusetts was put under arbitrary despotism. Towns were forbidden to meet, except for the choice of officers; there must be no deliberation; "discussion must be suppressed." He was to levy all the taxes; he assessed a penny in the pound in all the towns. Rev. John Wise, one of the ministers of Ipswich, advised the people to resist the tax. "Democracy," said he, "is Christ's government in Church and State; we have a good God and a good king; we shall do well to stand to our privileges." One of the Council said, "You have no privileges left you, but not to be sold as slaves." Even that was not likely to last long. The town of Ipswich refused to pay the tax, because invalid; the governor having no authority to tax the people: "they will petition the King for liberty of an assembly before they make any rates." The minister and five others were arrested; they had "obstructed an officer." The Rev. Mr. Wise was guiltiest of all; he did it with a word, an idea. They were brought to Boston, and thrown into jail, "for contempt and high misdemeanors." They claimed the habeas corpus; Chief Justice Dudley refused it, on the ground that it did not extend to America! They were tried before a packed jury, and such a court as James II. was delighted to honor. The patriots plead the laws of England and Magna Charta. It was all in vain. "I am glad," said the judge to his packed jury, "there be so many worthy gentlemen of the jury, so capable to do the king service; and we expect a good verdict from you, seeing the matter hath been so sufficiently proved against the criminals." The jury of course found them guilty. They were fined from L15 to L50 a piece. The whole cost to the six was over L400. "It is not for his majesty's interest that you should thrive," said one of those petty tyrants,—a tide-water of despotism.[101]

[Footnote 101: 1 Hutch. 316; 2 Hildreth, Hist. 108; 2 Bancroft, 425; Washburn, Judicial Hist. of Mass. 105; Drake's Boston, ch. L.]

Andros denied the colonial title to lands, claiming that as the charter was declared void, all the lands held under its authority escheated to the crown,—"The calf died in the cow's belly." A deed of purchase from the Indians was "worth no more than the scratch of a bear's paw." "The men of Massachusetts did much quote Lord Coke" for their titles: but Rev. John Higginson, minister of the first church in Salem, the son of the first minister ever ordained in New England,—and ancestor of this noble-hearted man [Rev. T.W. Higginson] who is now also indicted for a "misdemeanor,"—found other laws for their claim, and insisted on the citizens' just and natural right to the lands they had reclaimed from the wilderness.[102] Andros said, "You are either subjects, or else you are rebels;" and in either case, their lands would be forfeit.

[Footnote 102: 1 Felt's Salem, 24; 2 Ib. 542; Felt's Ipswich, 123, et seq.; Gage's Rowley, 157, et seq.; Sullivan's Land Titles, 54.]

Andros hated freedom of speech and of thought. He was to allow no unlicensed printing. Randolph was appointed censor of the press, and ordered the printer to publish nothing without his approbation, nor "any almanac whatever." There must be but one town meeting in a year, and no "deliberation" at that; no "agitation," no discussion of grievances. There must be no preaching on the acts of the government. Rev. Dr. Increase Mather, one of the ablest men in the Colonies, was the special object of his hate. Randolph advised the authorities to forbid any non-conformist minister to land in New England without the special consent of the governor, and that he should restrain such as he saw fit to silence. The advice was not lost on such willing ears. John Gold, of Topsfield, was tried for "treasonable words," and fined fifty pounds—a great deal more at Topsfield in 1687, than "three hundred dollars" is now in Boston. Rev. Increase Mather had opposed the surrender of the Charter of Massachusetts, and published his reasons; but with such prudence, for he was careful how he "evinced an express liking" for justice, that it was difficult to take hold of him. So the friends of government forged a letter with his name, to a person in Amsterdam. Randolph showed the letter to persons whom he wished to prejudice against the alleged writer. When Mr. Mather learned the facts, he wrote a letter to a friend, clearing himself, and charging the forgery on Randolph or his brother. Randolph brought his action for a libel, claiming L500 damages. But it came to nothing—then. Now times are changed!

Col. Pynchon, of Springfield, one of the officers in this new state of things, was empowered to bind over all persons suspected of riots, "outrageous or abusive reflecting words and speeches against the government." "The spirit of justice was banished from the courts that bore the name."[103]

[Footnote 103: Hutch. 327; Washburn, ibid.]

But notwithstanding the attempt to stifle speech, a great tall minister at Rowley, called Andros "a wicked man!" For that offence he was seized and put in prison! He, also, like Higginson, is represented in this court by one of his own name; and the same inextinguishable religious fire which burned in the bosom of Robert in Old England, and from Samuel in New England flashed into the commissioned face of Andros, now lightens at this bench from the eyes of WENDELL PHILLIPS, who confers new glory on his much-honored ancestor.

* * * * *

Gentlemen of the Jury, you know how this wickedness was brought to an end. If the courts would not decree Justice, there was a rougher way of reaching it, and having it done. Civil war, revolution by violence, came in place of the simple forms of equity, which the judges had set at nought. William of Orange, a most valiant son-in-law, drove the foul tyrant of Old England from that Island, where the Stuarts have ever since been only "Pretenders;" and on the 19th of April, 1689, the people of Massachusetts had the tyrant of New England put solemnly in jail! We were rid of that functionary for ever, and all such "commissioners" have been held odious in New England ever since the days of Andros. Eighty-six years later came another 19th of April, also famous. Well said Secretary Randolph, "Andros has to do with a perverse people,"—they would not bow to such tyranny in 1689. But he afterwards became a quite acceptable governor in Virginia,—where, I doubt not, he has descendants in African bondage at this day.

Catholic James II. sought to establish arbitrary power in America, as in England, by his prerogative—the Omnipotence of the King; he failed; the high-handed despotism of the Stuarts went to the ground. The next attempt at the same thing was by the legislature—the Omnipotence of Parliament—for a several-headed despotism took the place of the old, and ruled at home with milder sway. It tried its hand in America; there were no more requisitions from a king hostile to the Colonies, but acts of Parliament took their place. After the French power in North America had given way, the British government sought to tame down and break in the sturdy son, who had grown up in the woods so big and rough, as obstinate as his father. Here are three measures of subjugation, all flowing from the same fountain of Principle—vicarious government by a feudal superior.

1. All the chief colonial officers were to be appointed by the king, to hold office during his pleasure, to receive their pay from him. Such was the tenure of the executive officers who had a veto on all colonial legislation, and of the judicial officers. Thus the power of making and administering the laws fell from the people distributed everywhere, into the hands of the distant government centralized in the King.

2. A standing army of British soldiers must be kept in the Colonies to overawe the people, and enforce the laws thus made and administered.

3. A revenue was to be raised from the Colonies themselves—from which the King would pay his officers and provide for his army that enforced his laws. The eagle is to feather the arrow which shoots him in mid heaven.

Thus law was a threefold cord wherewith to bind the strong Puritan. But his eyes were not put out—not then. Blindness came at a later day—when he had laid his head in the lap of a not attractive Delilah. With such judges and governors, backed by a standing army of hirelings—how soon would her liberty go down, and the Anglo-American States resemble Spanish America!

In 1760 Francis Bernard was made governor of Massachusetts, and thus officially put at the head of the Judiciary, a man wholly devoted to the Crown, expecting to be made a baronet! He did not wish an annual election of councillors, but wanted the sovereign power to enforce its decrees by violent measures. Thus Thomas Hutchinson was made Chief Justice in 1760, and afterwards Lieutenant-Governor,—continually hostile to the constitution of his native land. Thus Andrew Oliver—"Governor Oliver," "hungry for office and power," was appointed Secretary, Commissioner of Stamps and Lieutenant-Governor; and Peter Oliver—"Judge Oliver"—though not bred a lawyer, was made Chief Justice, the man who refused to receive his salary from the treasury of Massachusetts, preferring the money of the crown which owned him. In the revolutionary times of the five Judges of Massachusetts four were Tories!

Accordingly, when the Stamp Act was passed—22d March, 1765—there were Judicial officers in the Colonies ready to declare it "constitutional;" executive magistrates ready to carry out any measures intrusted to them. "I will cram the stamps down their throat with the end of my sword," said an officer at New York. Governor Bernard wanted soldiers sent to Boston to enforce submission; so did Hutchinson and "Governor Oliver." The Governor of New York thought, "if Judges be sent from England, with an able attorney-general and solicitor-general to make examples of some very few, the Colony will remain quiet."[104]

[Footnote 104: 5 Bancroft, 358.]

In 1768 John Hancock was arrested at Boston—for a "misdemeanor;" I suppose, "obstructing an officer," or some such offence.[105] The government long sought to procure indictments against James Otis—who was so busy in fencing out despotism—Samuel Adams, and several other leading friends of the colony. But I suppose the judge did not succeed in getting his brother-in-law put on the grand-jury, and so the scheme fell through. No indictment for that "misdemeanor" then. Boston had the right men to do any thing for the crown, but they did not contrive to get upon the grand-jury.

[Footnote 105: 6 Bancroft, 213.]

The King, it was George III., in his parliament, spoke of the Patriots of Boston, as "those turbulent and seditious persons." In the House of Commons, Stanley called Boston an "insolent town;" its inhabitants "must be treated as aliens;" its "charter and laws must be so changed as to give the King the appointment of the Council, and to the sheriffs the sole power of returning jurors;" then the Stamp Act could be carried out, and a revenue raised without the consent of the people. The plan was admirably laid; an excellent counsel! Suppose, as a pure conjecture, an hypothesis of illustration—that there were in Boston a fugitive slave bill court, eager to kidnap men and so gain further advancement from the slave power, which alone distributes the federal offices; suppose the court should appoint its creatures, relatives, nay, its uterine brother—its brother in birth—as fugitive slave bill commissioners to hunt men; and then should get its matrimonial brother—its brother-in-law—on the grand-jury to indict all who resisted the fugitive slave bill! You see, gentlemen, what an admirable opportunity there would be to accomplish most manifold and atrocious wickedness. This supposed case exactly describes what was contemplated by the British authorities in the last century! Only, Gentlemen, it was so unlucky as not to succeed; nay, Gentlemen, as to fail—then! Such accidents will happen in the best of histories!

It was moved in Parliament to address the king "to bring to condign 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.

(2.) The organized Delegates—priestly, kingly, nobilitary, or warlike—the secondary source. These made statute laws. As this was a self-conscious and organized body, having an object distinctly set before its mind and devising means for its purposes, it easily appropriated to itself the chief part of the business of law-making. Statute laws became more and more numerous and important; they were the principal—the customs were only subsidiary, laws de Jure, enacted before they are obeyed by the People. Still new customs continued to flow from the primitive source of legislation, the People, and of course took new forms to suit the conditions of national life.

4. Still the people came together to apply the laws—customary or enacted,—to the special cases which occurred. There were fixed periods when they assembled without notice given,—"regular law-days;" and if an emergency occurred, they were summoned on "extraordinary law-days." Here wrongs between party and party, and offences against the public, were set right by the "Country," the "Body of the county," that is, by the bulk of the population. The majority carried the day.

5. At length it was found inconvenient for so large a body to investigate each particular case, or to determine what cases should be presented for investigation.

(1.) So this preliminary examination was delegated to a smaller body of men, sworn to discharge the trust faithfully, who made inquiry as to offences committed, and reported the criminals for trial to the full meeting, the actual "Body of the country." Here, then, is the first organized and sworn "Jury;" "the grand inquest;"—here is popular Indictment by delegates.

(2.) Then it was found inconvenient for a large body—the whole country—to investigate the cases presented. Men were busy with their own work, and did not wish to appear and consume their time. So a smaller body of men was summoned to attend to any special case which was presented by the Grand Inquest. These also were sworn to do their duty. They were to try the men indicted. Here is Trial by sworn delegates, who represent the Body of the People. They were still called the "Country," as any spot of the Atlantic is the "Ocean." Here is the "Trial by Jury." They must be taken from the neighborhood of the parties concerned—for at this stage the jurors were also the witnesses, and other sworn witnesses were not then known. All the Jurors must concur in the vote of condemnation before the magistrate could hurt a hair of the accused's head.

Still after the people had delegated their law-making to one body of sworn representatives, and the twofold function of law-applying, by Indictment and Trial, to other sworn representatives, there was yet a great concourse of people attending the court on the "law-days;" especially when important matters came up for adjudication; then the crowd of people took sides with Plaintiff or Defendant; with the authorities which accused, or with the man on trial, as the case might be. Sometimes, when the Jury acquitted, the people tore the suspected man to pieces; sometimes when the Jury condemned, they showed their indignation—nay, rescued the prisoner. For the old tradition of actual trial by the "Body of the Country" still prevailed.

6. At length the Jurors are no longer the witnesses in the case. Others testify before them, and on the evidence which is offered, the Grand-Jury indict or not, and the Trial Jury acquit or condemn. Then the Jurors are no longer taken from the immediate neighborhood of the party on trial, only from his district or county. But sworn witnesses from the neighborhood, depose to the facts. There is no longer a great concourse of people in the open air, but the trial is carried on in a small court house, yet with open doors, in the face of the people, coram populo—public opinion still influences the Jury.

As most of the Jurors were unlearned men, not accustomed to intricate questions, it became necessary for the presiding judge, a man of nicer culture, to prepare rules of evidence which should prevent the matter from becoming too complicated for the rustic judgment. Thence came the curious and strange "rules of evidence" which prevail in all countries where trial by Jury is established, but are unknown in lands where the trial is conducted solely by experts, educated men. But as the mass of the people, as in America, become well informed, the old rules appear ridiculous, and will perish.

The number of sworn judges varies in different tribes of the Teutonic family, but as twelve has long been a sacred number with the Anglo-Saxons, that was gradually fixed for the Jury. Twelve consenting voices are indispensable for the indictment or the condemnation.

* * * * *

Such is the form of the Jury as we find it at this day. The other officers have also undergone a change. So, Gentlemen, let me give you a brief sketch of the Historical Formation of the Function of the Judge in nations of the same ethnological origin. Here I shall mention four steps.

1. At the meetings of the people to make, apply, and execute the law, some one must preside to keep order, put the question, and declare the vote. He was the Moderator of the meeting. At first it would seem that some important man, a priest, or a noble, or some other wise, distinguished, or popular man, performed that function. The business over, he dropped into his private place again. A new one was chosen at each meeting.

2. If the former moderator had shown skill and aptness, he was chosen the next time; again and again; at length it was a matter of course that he should preside. He studied the matter, and became "expert in all the manners and customs of his nation." This happens in most of the New England towns, where the same man is Moderator at the town-meetings for many years in succession. Men love to walk in the path they have once trodden, even if not the shortest way to their end.

3. When the nation is organized more artificially and the laws chiefly proceed from the secondary source, the government,—elective or usurpatory—a judge is appointed by the central authority to visit the districts (counties) and assist at the administration of justice. As the law is now made by the distant delegates, the judge they send down declares and explains it to the people, for they have not made it as before directly, nor found it ready-made, an old inherited custom, but only receive it as the authorities send it down from the Capitol. The law is written—the officer can read while they have no copy of the law, or could not read it had they the book. Hence the necessity of a judge learned in the law. Still the people are to apply the written law or apply it not.

Besides, the old customs remain, the unwritten laws of the people, which the judge does not understand so well as they. He represents the written law, the assembly the unwritten custom or tradition. The judge is appointed that he may please the central power; the people are only to satisfy such moral convictions as they have. There is often a conflict between the statute and the custom, a conflict of laws; and still more between the judge and the jury—a conflict in respect to the application of the law.

4. Then comes the critical period of the Trial by Jury. For the deputed judge seeks to enlarge his jurisdiction, to enforce his law, often against the customs and the consciences of the People, the jury, who only seek to enlarge Justice. He looks technically at the statute, the provisional Means of law, not at Justice the ultimate Purpose of law. To the "Country," the "Body of the People," or to the jury of inquest and of trial, he assumes not to suggest the law and its application, but absolutely to dictate it to them. He claims the exclusive right to decide on the Law and its Application; the jury is only to determine the Fact—whether the accused did the deed charged or not.

If the judge succeeds in this battle, then tyranny advances step by step; the jury is weakened; its original function is curtailed; certain classes of cases are taken from its jurisdiction; it becomes only the tool of the government, and finally is thrown aside. Popular law-making is gone; popular law-applying is also gone; local self-government disappears and one homogeneous centralized tyranny takes the place of the manifold Freedom of the people. So the trial by jury faded out of all the South-Teutonic people, and even from many regions of the German and Scandinavian North. But the Anglo-Saxon, mixing his blood with Danes and Normans, his fierce kinsfolk of the same family, has kept and improved this ancient institution. When King or Parliament made wicked laws, or appointed corrupt and cruel men for judges, the People have held this old ancestral shield between the tyrant and his victim. Often cloven through or thrust aside, the Saxon Briton never abandons this. The Puritan swam the Atlantic with this on his arm—and now all the Anglo-Saxon tribe reverences this defence as the Romans their twelve AONCILIA [Transcriber's Note: for 'AONCILIA' read 'ANCILIA'; see Errata], the mythic shield which "fell from Heaven."[113]

[Footnote 113: In this brief sketch I do not refer to the authorities, but see, who will, the classic passages and proof-texts in the well-known works of Grimm, Rogge, Biener, Michelsen, Moeser, Phillips, Eichhorn, Maurer, and others.]

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After so much historic matter, Gentlemen, it is now easy to see what is—

THE FUNCTION OF THE JURY AT THIS TIME. Here I make three points.

I. They are to decide the QUESTION OF FACT, the matter charged, and determine whether the accused did the deed alleged to be done. That is the first step—to determine the Fact.

II. They are to decide the QUESTION OF LAW, the statute or custom supposed to apply to the Deed done, and determine whether there is such a statute or custom, and whether it denounces such a Deed as a Crime assigning thereto a punishment. That is the second step—to determine the Law.

III. They are to decide the QUESTION OF THE APPLICATION OF THE LAW TO THE FACT, and to determine whether that special statute shall be applied to the particular person who did the deed charged against him. That is the third step—to determine the Application of the Law.

Gentlemen, I shall speak a few words on each of these points, treating the matter in the most general way. By and by I shall apply these general doctrines to this special case.

I. The jury is to DECIDE THE QUESTION OF FACT; to answer, Did the accused do the deed alleged, at the time and place alleged, with the alleged purpose and producing the alleged result? The answer will be controlled by the Evidence of sworn witnesses, who depose under a special oath to "tell the truth, the whole truth, and nothing but the truth." Their Evidence is the Testimony as to the Fact,—the sole testimony; the jury is the ultimate arbiter to decide on the credibility of the evidence, part by part, and its value as a whole.

Sometimes it is an easy matter to answer this Question of Fact; sometimes exceedingly difficult. If there be doubts they must weigh for the accused, who is held innocent until proven guilty.

With us the theory that the jury is the exclusive judge of the Question of Fact is admitted on all sides. But in England it has often happened that the judge instructs the jury to "find the facts" so and so; that is—he undertakes to decide the Question of Fact. In libel cases it is very common for New England judges to undertake to determine what constitutes a libel, and to decide on the intentions of the accused; that is to decide the most important part of the complex and manifold Question of Fact. For it is as much a question of fact to determine what constitutes a libel, as what constitutes theft, the animus libellandi as much as the animus furandi. Sometimes juries have been found so lost to all sense of manhood, or so ignorant of their duties, as to submit to this judicial insolence and usurpation.

If the Jury decide the Question of Fact in favor of the accused, their inquiry ceases at that step, they return their verdict, "NOT GUILTY;" and the affair is ended. But if they find he did the deed as charged, then comes the next function of the Jury.

II. The Jury are to DECIDE THE QUESTION OF LAW. Is there a statute or custom denouncing a penalty on that special deed? is the statute constitutional? To determine this matter, there are three sources of evidence external to their own knowledge.

1. The Testimony of the Government's Attorney. The Government itself is his client, and he gives such a statement of the law as suits the special purposes of the rulers and his own private and particular interest, selects such statutes, customs, and decisions, as will serve this purpose, and declares, Such is the law. Nay, he makes inferences from the law, and thereby infers new customs, and constructs new statutes, invents new crimes. He treats the law as freely as he treats the facts—making the most that is possible against the party accused. You have seen already what tricks Government attorneys have played, how they pervert and twist the law—making it assume shapes never designed by its original makers. He gives his opinion as to the law, as he gave an opinion as to the fact. This is not necessarily his personal and actual, but only his official and assumed opinion—what he wishes the Jury to think is law in this particular case.

2. The Testimony of the Defendant's Attorney. The accused is his client. He is to do all he can to represent the law as favorable as possible to the man on trial. He gives an opinion of the law, not his personal and actual, but his official and assumed opinion—what he wishes the Jury to think is law in this particular case.

3. The Testimony of the Judge on the Bench. But in the English courts, and the Federal courts of the United States, he is commonly no more than a government attorney in disguise; I speak only of the general rule, not the exceptions to it. He has received his office as the reward for party services—was made a judge because he was one-sided as a lawyer. In all criminal cases he is expected to twist the law to the advantage of the hand that feeds him. Especially is this so in all Political trials—that is, prosecutions for opposition to the party which the judge represents. The judge may be impartial, or partial, just or unjust, ignorant or learned. He gives an opinion of the law,—not his personal and actual, but his official and assumed opinion—what he wishes the jury to think is law in this particular case. For the court also is a stage, and the judges, as well as the attorneys, may be players,

"And one man in his time play many parts."

Of these three classes of witnesses, no one gives evidence under special oath to tell the law, the whole law, and nothing but the law—or if it be so understood, then all these men are sometimes most grossly and notoriously perjured; but each allows himself large latitude in declaring the law. The examples I have already cited, show that the judge often takes quite as wide a range as the attorney-general, or the prisoner's counsel.

As the jury hears the manifold evidence as to the facts, and then makes up its mind thereon and decides the Question of Fact, often rejecting the opinion of various witnesses, as ignorant, partial, prejudiced, or plainly false and forsworn; so will the jury hear the manifold and often discrepant evidence as to the law, and then make up their mind thereon and decide the Question of Law, often rejecting the opinion of various witnesses thereupon ignorant, partial, prejudiced, or plainly false and forsworn.

In regard to the Fact, the jury is limited to the evidence adduced in court. What any special juror knows from any other source is not relevant there to procure conviction. But in regard to the Law there is no such restriction; for if the jury know the law better than these three classes of witnesses for it in court, then the jury are to follow their better knowledge. At any rate, the jury are to make up their minds on this question of Law, and for themselves determine what the special Law is.

Every man is to be held innocent until proved guilty—until the special Deed charged is proved against him, and until that special deed is proved a Crime. The jury is not to take the government attorney's opinion of the Fact, nor the prisoner's counsel's opinion of the Fact, nor yet the judge's opinion thereon; but to form their own opinion, from the evidence offered to make up their own judgment as to the Fact. So likewise they are not to take the government attorney's opinion of the Law, or the prisoner's counsel's opinion of the Law, nor yet the judge's opinion thereon; but from all the evidence offered, not [Transcriber's Note: for 'not' read 'or'; see Errata] otherwise known to them, to make up their own judgment as to the Law. After they have done so—if they decide the Law in favor of the accused, the process stops there. The man goes free; for it does not appear that his deed is unlawful. But if the jury find the Law against the deed, they then proceed to their third function.

III. The jury is to decide the QUESTION OF THE APPLICATION OF THE LAW TO THE FACT. Here is the question: "Ought the men who have done this deed against the form of Law to be punished thereby?" The government attorney and the judge are of the opinion that the law should be thus applied to this case, but they cannot lay their finger on him until the jury, specially sworn "well and truly to try and true deliverance make," have unanimously come to that opinion, and say, "Take him and apply the law to him."

The Deed may be clear and the Statute clear, while the Application thereof to the man who did the deed does not follow, and ought not to follow. For

1. It is not designed that the full rigor of every statute shall be applied to each deed done against the letter thereof. The statute is a great sleeping Lion, not to be roused up when everybody passes that way. This you see from daily practice of the courts. It remains in the Discretion of the Attorney to determine what offences he will present to the Grand-Jury,—he passes by many, and selects such as he thinks ought to be presented. It remains in the Discretion of the Grand-Jury to determine whom they will indict, for sometimes when the Fact and Law are clear enough to them, they yet find "no bill" or ignore the matter. And after the man is indicted, it still remains in the Discretion of the Attorney to determine whether he will prosecute the accused, or pass him by. Indeed I am told that the very Grand-Jury who found the bills which have brought you and me face to face, hesitated to indict a certain person on account of some circumstances which rendered his unlawful act less deserving of the legal punishment: the Attorney told them he thought they had better find a bill, and he would enter a nolle prosequi in court,—plainly admitting that while the Law and the Fact were both clear, that the Grand-Jury were to determine in their Discretion whether they would apply the law to that man, whether they would indict or not; and the Attorney whether he would prosecute or forbear. It remains equally in the Discretion of the Trial Jury to determine whether the man who did the unlawful deed shall be punished—whether the spirit of that statute and the Purpose of Law requires the punishment which it allows.

2. Besides, in deciding this question—the jurors are not only to consider the one particular statute brought against the prisoner, but the whole Complex of Customs, Statutes, and Decisions, making up the Body of Law, and see if that requires the application of this special statute to this particular deed. Here are two things to be considered.

(1.) The general Purpose of the whole Body of Laws, the Object aimed at; and

(2.) The Means for attaining the end. Now the Purpose of Law being the main thing, and the statute only subsidiary to that purpose, the question comes—"Shall we best achieve that Purpose by thus applying the statute, or by not applying it?" This rests with the Jury in their Discretion to determine.

3. Still more, the Jury have consciences of their own, which they must be faithful to, which no official position can ever morally oblige them to violate. So they are to inquire, "Is it right in the sight of God, in the light of our consciences, to apply this special statute to this particular case and thus punish this man for that unlawful deed?" Then they are to ask, also, "Was the deed naturally wrong; done from a wrong motive, for a wrong purpose?" If not, then be the statute and the whole complex of laws what they may, it can never be right for a jury to punish a man for doing a right deed, however unlawful that deed may be. No oath can ever make it right for a man to do what is wrong, or what he thinks wrong—to punish a man for a just deed!

But if the twelve men think that the Law ought not to be applied in this case—they find "not guilty," and he goes free; if otherwise, "guilty," and he is delivered over to the judges for sentence and its consequences, and the judge passes such sentence as the Law and his Discretion point out.

The judge commonly, and especially in political trials, undertakes to decide the two last Questions himself, determining the Law and the Application thereof, and that by his Discretion. He wishes to leave nothing to the Discretion of the jury, who thus have only the single function of deciding the Question of Fact, which is not a Matter of Discretion—that is, of moral judgment,—but only a logical deduction from evidence, as the testimony compels. He would have no moral element enter into their verdict. The judge asks the jury to give him a deed of the ground on which he will erect such a building as suits his purpose, and then calls the whole thing the work of the jury, who only granted the land!

But this assumption of the judges ultimately and exclusively to decide the question of Law and its Application, is a tyrannous usurpation.

(1.) It is contrary to the fundamental Idea of the Institution of Trial by jury.

(2.) It leads to monstrous tyranny by putting the Property, Liberty, and Life of every man at the mercy of the government officers, who determine the Law and its Application, leaving for the jury only the bare question of Fact, which the judge can so manage in many cases as to ruin most virtuous and deserving men.

(3.) Not only in ancient times did the jury decide the three questions of Fact, of Law, and of its special Application, but in cases of great magnitude they continue to do so now, in both America and England, and sometimes in direct contradiction to the commands of the judges.

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Gentlemen of the Jury, if you perform this threefold function, then you see the exceeding value of this mode of trial,

1. For the punishment of wrong deeds done against the law, done by the unorganized selfishness of thieves, housebreakers, murderers, and other workers of unrighteousness;

2. And also for the prevention of wrong deeds attempted in the name of law, by the organized selfishness of the makers and officers thereof.

For in each special case brought to trial, the jury are judges of the Law and of its Application. They cannot make a law—statute or custom—nor repeal one; but in each particular case they must demand or forbid its execution. These Tribunes of the Saxon People have no general veto on law-making, and can efface no letter from the statute-book, but have a special and imperative veto on each case for the Application of the law.

Justice, the point common to the interests of all men, yes, the point 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.