Accordingly, I revise them many times in my life: now by a gradual change, the process of peaceful development; now by a sudden change, under conviction of sin, in penitence for the past, and great concern of mind for the future, by the process of personal revolution. But these rules of conduct are always provisional,--my ladder for climbing up to the purposes of individual life. I will throw them away as soon as I can get better. They are amenable subjectively to my notion of right, and objectively to right itself,--to conscience and to G.o.d.
As the individuals, all, the majority, or some controlling men, come to social self-consciousness, they express these natural laws, or their notion thereof, in certain rules of social conduct. They say, "This shall all men do, for it is right; that shall no man do, for it is wrong." The nation makes its social resolutions, social statutes, in its act of prayer; for legislation is to the State what prayer is to the man,--often an act of penitence, of sorrow, of fear, and yet of faith, hope, and love. When it rises higher, it revises and makes better rules of conduct: they derive all their objective and real value from their conformity with the law of G.o.d; all their subjective and apparent value, from their conformity with the nation"s notion thereof. The only thing which makes it right, and a social moral duty for society, or any of its members, to keep these social statutes, is that they are right, or thought so. In the progress of society, its rules of conduct get revised a good many times: now it is done by gradual, peaceful development; now by sudden and stormy revolutions, when society is penitent for the sin of the past, and in great anxiety and concern of mind through fear of the future. These social statutes are only provisional, to help men climb up to the purpose of social life. They are all amenable subjectively to the notion of right; objectively to right itself,--to the conscience of the individuals and to G.o.d.
Then society appoints officers whose special conventional function is to see to the execution of these social rules of conduct. They are legally amenable to the rules of conduct they are to carry out; socially amenable to the community that appoints them; individually amenable to their own conscience and to G.o.d.
To sum up all this in one formula: Officers are conventionally amenable to society; society, with its officers and its rules of conduct, amenable to the purpose of society; the design of individual life, to the individuals that compose it; individuals, with their rules of conduct, amenable each to his own conscience; and all to the law of the universe, to the Eternal Right, which represents the conscience of G.o.d.
So far as society is right, government right, statutes right, officers right, all may justly demand obedience from each: for though society, government, statutes, and officers are mere human affairs, as much so as farms, fences, top-dressing, and reapers, and are as provisional as they; yet Right is divine, is of G.o.d, not merely provisional and for to-day, but absolute and for eternity. So, then, the moral duty to respect the government, to keep the statutes, to obey the officers, is all resolvable into the moral duty of respecting the integrity of my own nature, of keeping the eternal law of nature, of obeying G.o.d. If government, statutes, officers, command me to do right, I must do it, not because commanded, but because it is right; if they command me to do wrong, I must refuse, not because commanded, but because it is wrong.
There is a const.i.tution of the universe: to keep that is to preserve the union between man and man, between man and G.o.d. To do right is to keep this const.i.tution: that is loyalty to G.o.d. To keep my notion of it is loyalty to my own soul. To be false to my notion thereof is treason against my own nature; to be false to that const.i.tution is treason against G.o.d. The const.i.tution of the universe is not amenable to men: that is the law of G.o.d, the higher law, the constant mode of action of the infinite Father of all. In that He lives and moves, and has His being.
It is now easy to see what are the Safeguards of society, the things which promote the end and aim of society,--the development of the body and spirit of all men after their law,--and thus help attain the purpose of individual life. I will mention three of these safeguards, in the order of their importance.
First of all, is Righteousness in the People: a religious determination to keep the law of G.o.d at all hazards; a sacred and inflexible reverence for right; a determined habit of fidelity each to his own conscience.
This, of course, implies a hatred of wrong; a religious and determined habit of disobeying and resisting every thing which contradicts the law of G.o.d, of disobeying what is false to this and our conscience. There is no safeguard for society without this. It is to man what impenetrability, with the other primary qualities, is to matter. All must begin with the integral atoms, with the individual mind and conscience; all be tried by that test, personal integrity, at last. What is false to myself I must never do,--at no time, for no consideration, in nowise. This is the doctrine of the higher law; the doctrine of allegiance to G.o.d; a doctrine which appears in every form of religion ever taught in the world; a doctrine admitted by the greatest writers on the foundation of human law, from Cicero to Lord Brougham. Even Bentham comes back to this. I know it is now-a-days taught in the United States, that, if any statute is made after the customary legal form, it is morally binding on all men, no matter what the statute may be; that a command to kidnap a black man and sell him into slavery, is as much morally binding as a command for a man to protect his own wife and child. A people that will practically submit to such a doctrine is not worthy of liberty, and deserves nothing but law, oppressive law, tyrannical law; and will soon get what it deserves. If a people has this notion, that they are morally bound to obey any statute legally made, though it conflict with public morals, with private conscience, and with the law of G.o.d, then there is no hope of such a people; and the sooner a tyrant whips them into their shameful grave, the better for the world.
Trust me, to such a people the tyrant will soon come. Where the carca.s.s is thither will the vultures be gathered together. Let no man put asunder the carrion and the crow. So much for the first and indispensable safeguard.
The next is derivative therefrom, Righteousness in the Establishments of the People. Under this name I include three things, namely, inst.i.tutions, const.i.tutions, and statutes. Inst.i.tutions are certain modes of operation, certain social, ecclesiastical, or political contrivances for doing certain things. Thus an agricultural club is a social inst.i.tution to help farming; a private school is a social inst.i.tution for educating its pupils; a church is an ecclesiastical inst.i.tution for the promotion of religion; an aristocracy is a political inst.i.tution for governing all the people by means of a few, and for the sake of a few; a congress of senators and representatives is a legislative inst.i.tution for making statutes; a jury of twelve men is a judicial inst.i.tution to help execute the statutes; universal suffrage is a democratic inst.i.tution for ruling the State.
Const.i.tutions are fundamental rules of conduct for the nation, made by the highest human authority in the land, and only changeable thereby, determining what inst.i.tutions shall be allowed, how administered, by whom and in what manner statutes shall be made.
Statutes are particular rules of conduct to regulate the action of man with man, of individuals with the State, and of the State with individuals.
Statutes are amenable to the const.i.tutions; the const.i.tutions to the inst.i.tutions; they to the people; all subjectively to the conscience of the individual, and objectively to the conscience of G.o.d.
Establishments are the machinery which a people contrives wherewith to carry out its ideas of the right or the expedient. In the present state of mankind, they are indispensable to accomplish the purpose of individual life. There are indeed a few men who for their good conduct, after they are mature, require no human laws whatever. They regulate themselves by their idea of right, by their love of truth, of justice, of man and G.o.d. They see the law of G.o.d so clear that they need no prohibitive statutes to restrain them from wrong. They will not lie nor steal, though no statutes forbid, and all other men both lie and steal; not if the statutes command falsehood and theft. These men are saints.
The wealth of Athens could not make Aristides unjust. Were all men like Jesus of Nazareth, statutes forbidding wrong would be as needless as sails to a shark, a balloon to a swallow, or a railroad to the lightning of heaven. This is always a small cla.s.s of men, but one that continually increases. We all look to the time when this will include all men. No man expects to find law books and courts in the kingdom of heaven.
Then there is a cla.s.s, who need these statutes as a well-known rule of conduct to encourage them to do right, by the a.s.surance that all other men will likewise be made to do so, even if not willing. They see the law of G.o.d less clear and strong, and need human helps to keep it. This cla.s.s comprises the majority of mankind. The court-house helps them, though they never use it; the jail helps them, though never in it. These are common men. They are very sober in Connecticut; not very sober in California.
Then there is a third cla.s.s who will do wrong, unless they are kept from it by punishment or the fear thereof. They do not see the law of G.o.d, or will not keep it if they do. The court-house helps them; so does the jail, keeping them from actual crime while there, deterring while out of it. Take away the outward restraints, their seeming virtue falls to pieces like a barrel without its hoops. These are knaves. I think this cla.s.s of men will continually diminish with the advance of mankind; that the saints will grow common, and the knaves get scarce. Good establishments promote this end; those of New England, especially the schools, help forward this good work, to convert the knaves to common men, to transfigure the common men to saints. Bad establishments, like many in Austria, Ireland, and South Carolina, produce the opposite effect: they hinder the development of what is high and n.o.ble in man, and call out what is mean and low; for human laws are often instruments to debauch a nation.
If a nation desires to keep the law of G.o.d, good establishments will help the work; if it have none such, it must make them before it can be at peace. They are as needful as coats and gowns for the body. Sometimes the consciousness of the people is far in advance of its establishments, and there must be a revolution to restore the equilibrium. It is so at Rome, in Austria and Prussia. All these countries are on the brink of revolution, and are only kept down by the bayonet. It was so here seventy-five years ago, and our fathers went through fire and blood to get the establishments they desired. They took of the righteousness in the people, and made therefrom inst.i.tutions, const.i.tutions, and statutes. So much for the second and derivative safeguard.
The third is Righteousness in the Public Officers, good men to administer the establishments, manage the inst.i.tutions, expound and enforce the const.i.tutions and execute the statutes, and so represent the righteousness of the people. In the hands of such men as see the purpose of social and individual life, and feel their duty to keep the integrity of their conscience and obey the law of G.o.d, even bad establishments are made to work well, and serve the purpose of human life; because the man puts out the evil of the inst.i.tution, const.i.tution, or statute, and puts his own righteousness in its place. There was once a judge in New England who sometimes had to administer bad laws. In these cases, he told the jury, "Such is the law, common or enacted; such are the precedents; such the opinions of Judge This and Judge That; but justice demands another thing. I am bound by my oath as judge to expound to you the law as it is; you are bound by oath as jurors to do justice under it; that is your official business here to-day." Such a man works well with poor tools; with good ones he would work much better. By the action of such men, aided by public opinion which they now follow and now direct, without any change of legislation, there is a continual progress of justice in the establishments of a nation. Bad statutes are dropped or corrected, const.i.tutions silently ameliorated, all inst.i.tutions made better. Thus wicked laws become obsolete. There is a law in England compelling all men to attend church. n.o.body enforces it.
Put a bad man to administer the establishments, one who does not aim at the purpose of society, nor feel bound to keep the higher law of G.o.d, the best inst.i.tutions, const.i.tutions, statutes, become ineffectual, because the man puts out the good thereof, and puts in his own evil.
The best establishments will be perverted to the worst of purposes. Rome had all the machinery of a commonwealth; with Caesar at the head it became a despotism. In 1798, France had the establishments of a republic; with Napoleon for first consul, you know what it became: it soon was made an empire, and the Const.i.tution was trodden under foot. In 1851, France has the inst.i.tutions of a democracy; with Louis Napoleon as chief, you see what is the worth of the provisions for public justice.
What was the Const.i.tution of England good for under the thumb of Charles I. and James II.? What was the value of the common law, of the trial by jury, of Magna Charta, "such a fellow as will have no sovereign," with a George Jeffries for Judge, a James II. for king, and such juries as corrupt sheriffs brought together? They were only a mockery. What were the charters of New England against a wicked king and a corrupt cabinet?
Connecticut went out of the court and into the Charter Oak for self-preservation. What were all the inst.i.tutions of Christianity when Alexander VI. dishonored the seat even of the Pope?
Put a saint, who feels his duty to keep the law of G.o.d, in office, even bad rules will work well. But put a man who recognizes no law of G.o.d, not into a jail, but in a great office; give him courts and courtiers, fleets and armies, nay, only newspapers and "union committees" to serve him, you see what will be done. The resolute determination of the people to obey the law of G.o.d, the righteousness of their establishments, will be of small avail, frustrated by the wickedness of the men in power. The English Parliament once sent a fleet to aid the Huguenots at Roch.e.l.le. King Charles I. gave the admiral secret orders to surrender his ships to the enemy he was sent to oppose! The purpose of all human life may be as foully betrayed by wicked men in a high place.
In a monarchy, the king is answerable for it with his neck; in a republic there is the same danger; but, where all seems to proceed from the people, it may be more difficult to do justice to a wicked officer.
So much for the third safeguard, also derivative from the first.
To make a good house, you want good materials,--solid stone, sound bricks, sound timber; a good plan, and also good builders. So, as safeguards of society, to achieve its purpose, you want good material,--a righteous people who will be faithful to their own conscience, and obey G.o.d and reverence the law of nature; a good plan,--righteous establishments, inst.i.tutions, const.i.tutions, statutes conformable to the laws of G.o.d; and you want good builders,--righteous officers to represent the eternal justice of the Father. You want this threefold righteousness.
How are we provided with these three safeguards just now? Have we this Righteousness in the People?--which is the first thing. Perhaps there is no nation with a higher reverence for justice, and more desire to keep the law of G.o.d; at least we have been told so, often enough. I think the nation never had more of it than now; never so much. But here are whole cla.s.ses of men who practically seem to have no reverence for G.o.d"s law; who declare there is no such thing; whose conduct is most shamefully unrighteous in all political matters. They seek to make us believe there is no law above the caprice of man. Of such I will speak by and by.
It is plain there is not righteousness enough in the people to hinder us from doing what we know is contrary to the law of G.o.d. Thus, we keep one sixth part of the people in a state of slavery. This we do in violation of our own axiom, declared to be self-evident, that all men are created equal, endowed by their Creator with the unalienable right to life, liberty, and the pursuit of happiness. We have here three millions of slaves: if things go on as now, there will be twelve millions before the century ends. We need not say we cannot help it. Slavery in America is as much our work as democracy, as free schools, as the Protestant form of religion. At the Declaration, we might have made the slaves free; at the time of the Confederation; at the formation of the Const.i.tution. But no! there was not righteousness enough in the people to resist the temptation of eating the bread which others earn. American slavery has always been completely in the power of the American people. We may abolish it any time we will. We might have restricted it to the old States, which had it before, and so have kept it out of Kentucky, Tennessee, Louisiana, Mississippi, Alabama, Florida, and all that mighty realm west of the great river. No! we took pains to extend it there. We fought with Mexico to carry slavery into the "Halls of the Montezumas,"
whence a half-barbarous people drove it away. We long to seize on Cuba, and yet other lands, to plant there our "American inst.i.tution." We are indignant when Austria unjustly seizes an American in Hungary, and hales him to prison; but have nothing to say when slave States systematically confine the colored freemen of the North, or when Georgia offers a large reward for the head of a citizen of Boston. We talk of the "pauper labor of Europe." It is pauper labor, very much of it. I burn with indignation at the men who keep it so. But it is not slave labor. Paupers spin cotton at Manchester, and at Glasgow, say the whigs. Who raises cotton at South Carolina and Mississippi? The spoil of the slave is in our houses. We are a republic, but the only nation of the Christian world whose fields are tilled by chattel slaves. To such a degree has covetousness blinded the eyes of the whole nation. In saying all this, I will not say that we are less righteous than other nations. No other people has had the same temptation. It has been too great for America.
Slavery is loved as well in Boston as in New Orleans. The love of liberty is strong with us; but it is liberty for ourselves we love, not for our brother man whom we can oppress and enthrall. This vice is not confined to the South. I look on some of the clergymen of the North as only chaplains of the slave-driver.
Look at the next safeguard of society. Setting aside the inst.i.tution of slavery, and the statutes relating thereto, I think we have the most righteous Establishments in the world. By no means perfect, they produce the greatest variety of action in the individuals, the greatest unity of action in society, and afford an opportunity to achieve the purpose of social and individual life. Here is the great inst.i.tution of democracy, the government of all, by all, and for all, resting on the American idea, that all men have natural rights which only the possessor can alienate; that all are equal in their rights; that it is the business of government to preserve them all for each man. Under this great inst.i.tution of a free State, there naturally come the church, the school, the press,--all free. In politics, and all depending thereon, we are coming to recognize this principle, that restraint is only to be exercised for the good of all, the restrainer and the restrained.
Let me single out two excellent inst.i.tutions, not wholly American,--The contrivance for making laws, and that for executing them. To make laws, the people choose the best men they can find and confide in, and set them to this work. They aim to take all the good of past times, of the present times, and add to it their private contribution of justice. Each State Legislature is a little political academy for the advancement of jural science and art. They get the wisest and most humane men to aid them. Then after much elaboration the law is made. If it works well in one State it is soon tried in others; if not, it is repealed and ceases to be. The experience of mankind has discovered no better way than this of popular legislation, for organizing the ideal justice of the people into permanent forms. If there is a man of moral and political genius in the community, he can easily be made available to the public. The experiment of popular legislation has been eminently successful in America.
Then, still further, we have Officers chosen by the people for a limited time, to enforce the laws when made,--the Executive; others to expound them,--the Judiciary. It is the official business of certain officers to punish the man who violates the laws. In due and prescribed form, they arrest the man charged with the offence. Now, two things are desirable: one to protect society, in all its members, from injury by any one acting against its just laws; the other is, to protect the man complained of from being hurt by government when there is no law against him, or when he has not done the deed alleged, or from an unjust punishment, even if it be legal. In despotic countries, little is thought of this latter; and it goes hard with a man whom the government complains of, even if there is no positive statute against the crime charged on him, or when he is innocent of the deed alleged. Nothing can screen him from the lawful punishment, though that be never so unjust.
The statute and its administration are a rule without mercy. But in liberal governments a contrivance has been devised to accomplish both these purposes,--the just desire of society to execute its laws; the just desire of the individual to have justice done. That is the trial by a jury of twelve men, not officers of the government, but men taken for this purpose alone from the bosom of the community, with all their human sympathies and sense of responsibility to G.o.d about them. The jury are to answer in one word "Guilty" or "Not guilty." But it is plain they are to determine three things: first, Did the prisoner do the deed alleged, and as alleged? next, if so, Is there a legal and const.i.tutional statute forbidding it, and decreeing punishment therefor? and then, if so, Shall the prisoner for that deed suffer the punishment denounced by that law?[34]
Human statutes partake of human imperfections. See the checks against sudden, pa.s.sionate, or unjust legislation. We choose legislators, and divide them into two branches, a Senate and a House of Representatives, each to aid and check the other. If a bill pa.s.s one house, and seem unjust to the other, it is set aside. If both approve of it, a third person has still a qualified negative; and, if it seems unjust to him, he sets it aside. If it pa.s.ses this threefold ordeal, it becomes a statute of the land. See the checks in the execution of the laws which relate to offences. Before they can be brought against any man, in any matter beyond a trifle, a jury of his peers indict him for the offence.
Then, before he can be punished, twelve men of his peers must say with one accord, "You shall inflict the penalties of the statute upon this man."
This trial by jury has long been regarded as one of the most important of the secondary safeguards of society. It has served to defend the community against bad citizens, and the citizens against an evil establishment,--bad inst.i.tutions, bad const.i.tutions, bad statutes; against evil officers, bad rulers, bad judges, bad sheriffs. If the community has much to fear from bad citizens, here is the offensive armor, and the jury do not bear the sword in vain. If its citizens have much to fear from a wicked government, oppressive, grasping, tyrannical, desirous of pretending law where there is none, declaring "ship-money"
and other enormities const.i.tutional, or pressing a legal statute beyond justice, making it treason to tell of the wickedness of officers,--here is the defensive armor, and the jury do not bear in vain the shield of the citizen. Sometimes the citizens have more to fear from the government than from all other foes. Louis XIV. was a great robber, and plundered and murdered more of his subjects than all the other alleged felons in the sixteen millions of Frenchmen. The honest burghers of Paris had more to fear from the monarch in the Tuileries than from the murderer in the Faubourg St. Antoine, or the cut-purse in the Rue St.
Jacob. Charles I. was a more dangerous enemy to our fathers in England and America than all the other thieves and murderers in the realm. What were all the Indians in New England, for peril to its Christian citizens, compared to Charles II. and his wicked brother? What was a foot-pad to Henry VIII.? He plundered a province, while the robber only picked a pocket.
The trial by jury has done manly service. It was one of the first bulwarks of human society, then barbarous and feeble, thrown up by the Germanic tribe which loved order, but loved justice too. It is a line of circ.u.mvallation against the loose, unorganized wickedness of the private ruffian; a line of contravallation also against the organized wickedness of the public government. It began before there were any regular courts or written laws; and, ever since, it has done great service when corrupt men in high places called a little offence "treason"; when corrupt judges sought to crush down the people underneath oppressive laws to advance themselves; and when corrupt witnesses were ready to "enlarge" their testimony so as to "dispatch" the men accused; yea, to swear black was black, and then, when the case seemed to require it, swear white was black. Any man who reads the history of England under the worst of kings, the worst of ministers, the worst of judges, and with the worst of witnesses, and compares it with other nations, will see the value of the trial by jury as a safeguard of the people. The b.l.o.o.d.y Mary had to punish the jurors for their verdict of acquittal, before she could accomplish her purposes of shame. George III., wishing to collect a revenue in the American colonies, without their consent or any const.i.tutional law, found the jury an obstacle he could not pa.s.s over. Attorneys might try John Hanc.o.c.k for smuggling in his "sloop Liberty:" no jury would convict. The tea, a vehicle of unjust taxation, went floating out of Boston Bay in a most illegal style. No attempt was made to try the offenders; the magistrates knew there was a jury who would not convict men for resisting a wicked law. Men must be taken "over seas for trial" by a jury of their enemies, before the wicked laws of a wicked ministry could be brought upon the heads of the resolute men of America.
It is of great importance to keep this inst.i.tution pure; to preserve its spirit, with such expansion as the advance of mankind requires.
Otherwise, the laws may be good, the const.i.tutions good, inst.i.tutions good, the disposition of the people good; but, with a wicked minister in the cabinet, a wicked judge on the bench, a wicked attorney at the bar, and a wicked witness to forswear himself on the stand,--and all these can easily be had; you can purchase your wicked witnesses; nay, sometimes one will volunteer and "enlarge his testimony,"--a man"s life and liberty are not safe for a moment. The administration may grasp any man at will. The minister represents the government; the judge, the attorney, all represent the government. It has often happened that all these had something to gain by punishing unjustly some n.o.ble man who opposed their tyranny, and they used their official power to pervert justice and ruin the State, that they might exalt themselves. The jury does not represent the government, but "the country;" that is, the justice, the humanity, the mercy of mankind. This is its great value.
Have we the third safeguard, Righteous Officers? I believe no nation ever started with n.o.bler officers than we chose at first. But I think there has been some little change from Washington down through the Tylers and the Polks to the present administration. John Adams, in coming to the presidency, found his son in a high office, and asked his predecessor if it were fit for the President to retain his own son in office. Washington replied, It would be wrong for you to appoint him; but I hope he will not be discharged from office, and so the country be deprived of his valuable services, merely "because he is your son!" What a satire is this on the conduct of men in power at this day! We have had three "second General Washingtons" in the presidential chair since 1829; two new ones are now getting ready, "standing like greyhounds in the slips, straining upon the start," for that bad eminence. These three past and two future "Washingtons" have never displayed any very remarkable family likeness to the original--who left no descendant--in this particular.[35] I pa.s.s over the general conduct of our executive and judicial officers, which does not seem to differ much from that of similar functionaries in England, in France, in Italy, Austria, Turkey, and Spain. But I must speak of some special things in the conduct of some of these persons,--things which ought to be looked at on such a day as this, and in the light of religion. Attempts have lately been made in this city to destroy the juror"s power to protect the citizen from the injustice of government,--attempts to break down this safeguard of individual liberty. We have seen a judge charge the grand jury, that, in case of conflict between the law of G.o.d and the statutes made by men, the people must "obey both." Then we have seen an attempt made by the government to get a partial jury, who should not represent the country, but should have prejudices against the prisoner at the bar. We have seen a man selected as foreman of the jury who had previously, and before witnesses, declared that all the persons engaged in the case which was to come before him, "ought to be hung." We have seen a man expelled from the jury, after he had taken the juror"s oath, because he declared that he had "a general sympathy with the down-trodden and oppressed here and everywhere," and so did not seem likely to "dispatch" the prisoner, as the government desired. This is not all: the judge questions the jurors before their oath, and refuses to allow any one to be impanelled who doubts the const.i.tutionality of the fugitive slave law. Even this is not the end: he charges the jury thus selected, packed, picked, and winnowed, that they are to take the law as he lays it down; that they are only judges of the fact, he exclusively of the law; and, if they find that the prisoner did the deed alleged, then they must return him "Guilty" of the offence charged.
I am no lawyer: I shall not speak here with reference to usages and precedents of the past, only with an eye to the consequences for the future. If the court can thus select a jury to suit itself, mere creatures of its own, what is the use of a jury to try the fact? See the consequences of this decision, that no man shall serve as juror who doubts the const.i.tutionality of a law, and that the jurors are not judges of the law itself, as well as the fact. Let me suppose some cases which may happen. The Const.i.tution of the United States provides that Congress shall not prohibit the free exercise of religion. Suppose that Congress should pa.s.s a law to punish any man with death who should pray to the "Father, Son, and Holy Ghost." The government wishes to punish an obnoxious orthodox minister for violating this "form of law." It is clearly unjust; but the judge charges the grand jury they are to "obey both" the laws of G.o.d and the statutes of men. The grand jury indict the man. He is brought for trial. The law is obviously unconst.i.tutional; but the judge expels from the jury all who think the law is unconst.i.tutional. He selects the personal enemies of the accused, and finds twelve men foolish enough or wicked enough to believe it is const.i.tutional to do what the Const.i.tution declares must not be done; and then proceeds to trial, selecting for foreman the man who has said, "All men that thus pray ought to be hung!" What is the value of your Const.i.tution? The jury might convict, the judge sentence, the President issue his warrant, and the man be hanged in twenty-four hours, for doing a deed which the Const.i.tution itself allows, and Christendom daily practises, and the convictions of two hundred million men require!
It is alleged the jury must not judge of the law, but only of the fact.
See the consequences of this principle in several cases. The Secretary of State has declared the rescuing of Shadrach was "treason," and, of course, punishable with death. Suppose the court had charged the jury, that to rescue a man out of the hands of an incompetent officer--an offence which in Boston has sometimes been punished with a fine of five dollars--was "levying war" against the United States, and they were only to find if the prisoner did the deed; and, if so, return a verdict of guilty. Suppose the jury are wicked enough to accept his charge, where is the protection of the citizen? The government may say, to smuggle goods into Boston harbor is "levying war" and hang a man for treason who brings on sh.o.r.e an ounce of camphor in his pocket without paying duties!
Is not the jury, in such a case, to judge what the law makes treason?--to decide for itself?
There was once a law making it felony without benefit of clergy to read the Bible in the English language. Suppose the government, wishing to make away with an obnoxious man, should get him indicted next term for this offence, and the judge should declare that the old law is still in force. Is the jury not to judge whether we live under the b.l.o.o.d.y Mary, or the const.i.tution of Ma.s.sachusetts?--whether what was once law is so now? If not, then the laws of King Darius or King Pharaoh may be revived whenever Judge Hategood sees fit, and Faithful must hang for it.[36]
Suppose the judge makes a law himself, declaring that, if any one speaks against the justice of the court, he shall be whipped with forty stripes save one, and gets a man indicted under it and brought to trial--is the jury not to judge if there be such a law? Then we might as well give up all legislation, and leave all to the "discretion of the court."
A judge of the United States Court was once displaced on account of mental imbecility. Was Judge Simpleton to determine what was law, what not, for a jury of intelligent men?
Another judge, not long ago, in Boston, in his place in court, gave an opinion in a most important affair, and was drunk when he gave it. I do not mean he was horizontally drunk, but only so that his friends feared "he would break down in court, and expose himself." Was the opinion of a drunken judge to be taken for law by sober men?
Suppose the judge is not a simpleton nor a drunkard, but is only an ordinary lawyer and a political partisan, and appointed to his office because he is a fawning sycophant, and will interpret the law to suit the ambition of the government--a thing that has happened in this city.
Is he to lay down the law for the jurors who aim only to live in honorable morality, to hurt no one, and give every man his due?
Suppose the attorneys at the bar know the law better than the attorney on the bench,--a thing that daily happens,--are not the jurors to decide for themselves?