Part 21

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 institutions, bad constitutions, 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 constitutional, 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 circumvallation 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 bloody 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 constitutional law, found the jury an obstacle he could not pass over. Attorneys might try John Hancock 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 institution pure; to preserve its spirit, with such expansion as the advance of mankind requires. Otherwise, the laws may be good, the constitutions good, institutions 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 noble 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 nobler 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 pass 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 God 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 constitutionality 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 constitutionality 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 Constitution of the United States provides that Congress shall not prohibit the free exercise of religion. Suppose that Congress should pass 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 God and the statutes of men. The grand jury indict the man. He is brought for trial. The law is obviously unconstitutional; but the judge expels from the jury all who think the law is unconstitutional. He selects the personal enemies of the accused, and finds twelve men foolish enough or wicked enough to believe it is constitutional to do what the Constitution 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 Constitution? 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 Constitution 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 shore 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 bloody Mary, or the constitution of Massachusetts?--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?

I have chosen fictitious cases to try the principle. Extreme cases make shipwreck of a wicked law, but are favoring winds to bring every just statute into its happy harbor at the last. Will you say we are not likely to suffer from such usurpation? You know what we have suffered within three months past. God only knows what is to come. But no man is ever to seek for a stick if he wishes to beat a dog, or for a cross if he would murder his Saviour. The only way to preserve liberty is by eternal vigilance: we must be jealous of every president, every minister, every judge, every officer, from a king to the meanest commissioner he appoints to kidnap men. You have seen the attempts made to sap and undermine one of the most valuable safeguards of our social welfare,--seen that it excited very little attention; and I wish to warn you of the danger of a false principle. I have waited for this day to speak on this theme. Executive tyranny, with soldiers at its command, must needs be open in its deeds of shame. It may waste the money of the public which cleaves to the suspected hands of its officers: it is not so easy to get the necks of those it hates; for we have no star-chamber of democracy, and here the executive has not many soldiers at command, must ask before it can get them. It did ask, and got "No" for answer. Legislative tyranny must needs be public, and is easily seen. But judicial tyranny is secret, subtle, unseen in its action; and all experience shows it is one of the most dangerous forms of tyranny. A corrupt judge poisons the wells of human society.[37] Scroggs and Jeffries are names deservedly hated by mankind, and there are some American names likely to be added to them. The traditionary respect entertained here for an office which has been graced by some of the noblest men in the land, doubles our danger.

But an attack is made on another safeguard of society, yet more important. We have been told that there is no law higher than a human statute, no law of God above an act of the American Congress. You know how this doctrine of the supremacy of the lower law has been taught in the high places of the State, in the high places of the church, and in the low places of the public press. You know with what sneers men have been assailed who appealed to conscience, to religion, and said, "The law of God is supreme; above all the enactments of mortal men." You have been witness to attempts to howl down the justice of the Almighty. We have had declamation and preaching against the law of God. It is said the French Assembly, some fifty or sixty years ago, voted that there should be no public worship of God; that there was no God to worship; but it was left for politicians and preachers of America, in our time, to declare that there is no law above the caprice of mortal men. Did the French "philosophers" decree speculative atheism? the American "wise men" put it in practice. They deny the function of God. "He has nothing to do with mankind." This doctrine is one of the foulest ever taught, and tends directly to debauch the conscience of the people. What if there were no law higher than an act of Parliament? what would become of the Parliament itself? There is such a thing conceivable as personal, speculative atheism. I think it is a very rare thing. I have never known an atheist: for, with all about us speaking of God; all within us speaking of him; every telescope revealing the infinite Mind in nebulae resolved to groups of systems of suns; every microscope revealing the infinite Father, yea, Mother of the world, in a drop of water, a grain of perishing wood, or an atom of stone; every little pendulum revealing his unchanging law on a small scale; and this whole group of solar systems, in its slow and solemn swing through heavenly space, disclosing the same law on a scale which only genius at first can comprehend,--it is not easy to arrive at personal, speculative atheism. It would be a dreadful thing, the stark denial of a God. To say there is no infinite Mind in finite matter, no order in the universe, in providence only a fate, no God for all, no Father for any, only an inextinguishable nothing that fills the desert and illimitable ether of space and time, the whence and whither of all that are,--such a belief is conceivable; but I do not believe that there is a single atheist living on the whole round world. There is no general danger of personal, speculative atheism. When M. Lalande declared that he saw no God through his telescope, though he meant not to deny the real God of nature, the world rang with indignation at an astronomer undevout and mad. But practical, political atheism has become a common thing in America, in New England. This is not a denial of the essence of God and his being, but of his function as Supreme Ruler of the church, of the State, of the people, of the universe. Of that there is danger. The devil of ambition tempts the great man to it; the devil of covetousness, the little man. Both strike hands, and say, "There is no higher law;" and low men lift up their mean foreheads in the pulpits of America and say, "It is the voice of a God, and not of a man. There is no higher law." The greatest understanding of this land, with haughty scorn, has lately said, "The North Mountain is very high; the Blue Ridge, higher still; the Alleghanies higher than either; and yet this 'higher law' ranges further than an eagle's flight above the highest peaks of the Alleghanies."[38] The impious taunt was received with "laughter" by men who have long acted on the maxim that there is no law of God, and whose State is impoverished by the attempt to tread His law under foot. I know men in America have looked so long at political economy that they have forgotten political morality, and seem to think politics only national housekeeping, and he the best ruler who buys cheapest and sells dearest. But I confess I am amazed when statesmen forget the lessons of those great men that have gone before us, and built up the social state, whose "deep foundations have been laid with prayer." What! is there no law above the North Mountain; above the Blue Ridge; higher than the Alleghanies? Why, the old Hebrew poet told us of One "which removeth the mountains, and they know not; which overturneth them in his anger; which alone spreadeth out the heavens, and treadeth upon the waves of the sea. Lo! he goeth by me, and I see him not; he passeth on also, but I perceive him not." Yes, there is One--his law "an eagle's flight above the Alleghanies"--who humbleth himself to behold the things that are in heaven, whose strong hand setteth fast the mountains; yea, One who hath weighed the mountains in scales; before whom all nations are as a very little thing. Yes, Father in heaven! before the mountains were brought forth, or ever thou hadst formed the earth and the world, even from everlasting to everlasting, thou art God. Yea, thou hast been our dwelling-place in all generations. Thy name alone is excellent; thy glory above the earth and heaven!

No higher law for States than the poor statutes they enact!

"Among the assemblies of the great A greater Ruler takes his seat; The God of heaven as Judge surveys These 'gods of earth' and all their ways:-- 'Why will you frame oppressive laws? Or why support the unrighteous cause? When will you once defend the poor, That foes may vex the saints no more?' They know not, Lord, nor will they know; Dark are the ways in which they go; Their name of 'earthly gods' is vain, For they shall fall and die like men."

It would be a great calamity for this nation to lose all of its mighty riches, and have nothing left but the soil we stand on. But, in seven or eight generations, it would all be restored again; for all the wealth of America has been won in less time. We are not two hundred and fifty years from Jamestown and Plymouth. It would be a great misfortune to lose all the foremost families of the nation. But England lost hers in the War of the Roses; France, in her Revolution. Nature bore great men anew, and fresh families sprung up as noble as the old. But, if this generation in America could believe that there was no law of God for you and me to keep,--say the acts of Congress what they might say,--no law to tame the ambition of men of mountain greatness, and curb the eagle's flight of human tyranny, that would be a calamity which the nation would never recover from. No! then religion would die out; affection fall dead; conscience would perish; intellect give up the ghost, and be no more. No law higher than human will! No watchmaker can make a long pendulum vibrate so quick as a short. In this very body there is that law. I wake and watch and will; my private caprice turns my hand, now here, now there. But who controls my breath? Who bids this heart beat all day long, and all the night, sleep I or wake? Whose subtle law holds together these particles of flesh, of blood, and bone in marvellous vitality? Who gives this eye its power to see, and opens wide the portal of the ear? and who enchants, with most mysterious life, this wondrous commonwealth of dust I call myself? It is the same Hand whose law is "higher than the Blue Ridge," an "eagle's flight above the Alleghanies." Who rules the State, and, out of a few stragglers that fled here to New England for conscience sake, built up this mighty, wealthy State? Was it Carver and Winthrop who did all this; Standish and Saltonstall? Was it the cunning craftiness of mightiest men that consciously, well knowing what they did, laid the foundations of our New England State and our New England Church? Why, the boys at school know better. It was the eternal God whose higher law the Pilgrim and the Puritan essayed to keep, not knowing whereunto the thing would grow. Shall the fool say in his heart there is no God? He cannot make a hair grow on his head but by the eternal law of his Father in heaven. Will the politician say there is no law of God for States? Ask the sorrowing world; let Austria and Hungary make reply. Nay, ask the Southern States of America to show us their rapid increase in riches, in civilization; to show us their schools and their scholars, their literature, their science, and their art! No law of God for States! It is writ on the iron leaf of destiny, "Righteousness exalteth a nation, but sin is a curse to any people." Let the wicked hand of the South join with the Northern wicked hand, iniquity shall not prosper. But the eye of the wicked shall fail; they shall not escape; their hope shall be as giving up the ghost, because their tongue and their doings are against the Lord, to provoke the eyes of his glory. Their root shall be as rottenness, and their blossom shall go up as dust, if they cast away the law of the Lord, and despise the word of the Holy One.