FOOTNOTES:
[11] The terms laws of the human spirit, spiritual laws, &c., are sometimes used to denote exclusively those laws which man must keep, not merely what he ought to keep, laws in relation to which man has no more freedom than a mass of marble. The words are used above in a different sense.
Why dost thou, Tyrant, boast abroad thy wicked works to praise?
Dost thou not know there is a God, whose mercies last alwaies?
* * * *
On mischiefe why sett'st thou thy minde, and wilt not walke upright?
Thou hast more lust false tales to find, than bring the truth to light.
Thou dost delight in fraud and guile, in mischiefe, bloud and wrong.
Thy lips have learned the flattering stile, oh false deceitful tongue.
Therefore shall God for aye confound, and pluck thee from thy place;
Thy seed root out from off the ground, and so shall thee deface.
The just, when they behold thy fall, with feare shall praise the Lord;
And in reproach of thee withall, crie out with one accord:—
"Behold the man that woulde not take the Lord for his defence;
But of his goods his God did make, and trust his corrupt sense.
But I, as olive, fresh and green, shall spring and spread abroad;
For why? my trust all times hath been, upon the living God!
"For this therefore will I give praise to Thee with heart and voyce;
I will set forth Thy name alwayes, wherein Thy saints rejoyce."
Psalm lii. in Sternhold and Hopkins.
[13] It has been said that the fugitive slave law cannot be executed in Boston. Let us not be deceived. Who would have thought a year ago, that the Senator of Boston would make such a speech as that of last March, that so many of the leading citizens of Boston would write such a letter of approval, that such a bill could pass Congress, and a man be found in this city (Mr. Samuel A. Eliot) to vote for it and get no rebuke from the people! Yet a single man should not endure the shame alone, which belongs in general to the leading men of the city. The member for Boston faithfully represented the public opinion of his most eminent constituents, lay and clerical. Here is an account of what took place in New York since the delivery of the sermon.
[From the New York Tribune.]
"Slave Catching in New York—First Case Under the Law.
"The following case, which occurred yesterday, is one of peculiar interest, from the fact of its being the first case under the new Fugitive Slave Law. It will be noticed that there is very little of the 'law's delay' here; the proceedings were as summary as an Arkansas court audience could desire.
"U. S. Commissioner's Office—Before Commissioner Gardiner.—Examination as to James Hamlet, charged to be a fugitive slave, the property of Mary Brown, of Baltimore.—No person was present as counsel for accused, and only one colored man. He is a light mulatto. The marshal said Mr. Wood had been there. The commissioner said they would go on, and if counsel came in, he would read proceedings.
"Thomas J. Clare (a man with dark eyes and hair), sworn.—Am thirty years of age; clerk for Merchant's Shot Manufacturing Company in Baltimore; know James Hamlet; he is slave of Mary Brown, a mother-in-law of mine, residing in Baltimore; have known Hamlet about twenty years; he left my mother-in-law about two years ago this season, by absenting himself from the premises, the dwelling where he resided in Baltimore; she is entitled to his services; he is a slave for life; she never parted with him voluntarily; she came into possession of him by will from John G. Brown, her deceased husband; the written paper shown is an extract from his will; she held him under that from the time she inherited him till he escaped, as I have testified; this is the man (pointing to Hamlet, a light mulatto man, about twenty-four or twenty-five years of age, looking exceedingly pensive).
"Gustavus Brown, sworn.—Am twenty-five years of age; reside in New York; clerk with A. M. Fenday, 25 Front street; resided before coming here in Baltimore; I know James Hamlet; I have known him since a boy; he is a slave to my mother; he is a slave for life; my mother inherited him under the will of my father; he left her service by running away, I suppose; absenting himself from the house in the city of Baltimore, about two years since; I have seen him several times, within the last six months, in the city; first time I saw him was in April last; my mother is still entitled to possession of him; she never has parted with him; the man sitting here (Hamlet) is the man.
"Mr. Asa Child, Counsellor at Law, here came into the room, and took his seat; he said he had been sent to this morning, through another, by a gentleman with whom Hamlet had lived in this city (Mr. S. N. Wood), but he had no directions in the matter; he merely came to see that the law is properly administered, and supposed it would be without him.
"Mr. Child was then shown the law, the power of attorney to Mr. Clare, the affidavit of Mr. Clare on which Hamlet was arrested—and the testimony thus far.
"Mr. Clare, cross-examined by Mr. Child.—I married Mrs. Brown's daughter about seventeen years ago; Hamlet has always lived with us in the family: I am in her family now, and was at the time he went away; think he is about twenty-eight years of age (he looks much younger than that—his features are very even, as those of a white person of the kind); he occasionally worked at the shot tower where I worked; he was hired there as a laborer, and Mrs. Brown got the benefit of him—that is, when I had no other use for him; he had formerly been employed as a drayman; after I married into the family some year or two, we lived together, I furnishing the house; such wages as I got for the man it was returned to Mrs. Brown, to be used as she saw fit; I was her agent to get employment for him as I could; I had him in various occupations; I have a power of attorney; I have no further interest in him than he is her property, and we wish to get him back to Maryland again, where he left.
"Mr. Brown, cross-examined.—Left home 27th March last. Was home when Hamlet went away. At the time he was engaged at the shot tower business.
"Mr. Child said he had no further questions to ask. He supposed the rules of the law had been complied with.
"Mr. Gardiner, the commissioner, then said, I will deliver the fugitive over to the marshal, to be delivered over to the claimant.
"Mr. Child suggested if that was the law. The commissioner then said he would hand him, as the law said, to the claimant, and if there should be any danger of rescue, he would deliver him to the United States Marshal.
"The United States Marshal said he had performed his duty in bringing him in.
"Mr. Clare said he would demand such aid from the United States Marshal, as would secure the delivery of the man to his owner in Baltimore.
"Mr. Child suggested that it must be an affidavit that he apprehends a rescue. Mr. Clare said that he did so apprehend.
"Mr. Talmadge, the marshal, said he would have to perform his duty, if called upon.
"Mr. Child replied he supposed he would, but there were doubts as to the form.
"The necessary papers were made out by the commissioner, Mr. Clare swearing he feared a rescue, and Hamlet was delivered to him, thence to the United States Marshal, and probably was conveyed with all possible despatch to Baltimore, a coach being in waiting at the door; and he was taken off in irons, an officer accompanying the party."
Here is the charge of Judge McLean in a similar case.
"No earthly power has a right to interpose between a man's conscience and his Maker. He has a right, an inalienable and absolute right, to worship God according to the dictates of his own conscience. For this he alone must answer, and he is entirely free from all human restraint to think and act for himself.
"But this is not the case when his acts affect the rights of others. Society has a claim upon all its citizens. General rules have been adopted in the form of laws, for the protection of the rights of persons and things. These laws lie at the foundation of the social compact, and their observance is essential to the maintenance of civilization. In these matters the law, and not conscience, constitutes the rule of action You are sworn to decide this case according to the law and testimony; and you become unfaithful to the solemn injunctions you have taken upon yourselves, when you yield to an influence which you call conscience, that places you above the law and the testimony.
"Such a rule can only apply to individuals; and when assumed as a basis of action on the rights of others, it is utterly destructive of all law. What may be deemed a conscientious act by one individual, may be held criminal by another. In view of one, the act is meritorious; in the view of the other, it should be punished as a crime. And each has the same right, acting under the dictates of his conscience, to carry out his own view. This would overturn the basis of society. We must stand by the law. We have sworn to maintain it. It is expected that the citizens of the free States should be opposed to slavery. But with the abstract principles of slavery we have nothing to do. As a political question there could be no difference of opinion among us on the subject. But our duty is found in the Constitution of the Union, as construed by the Supreme Court. The fugitives from labor we are bound, by the highest obligations, to deliver up on claim of the master being made; and there is no State power which can release the slave from the legal custody of his master.
"In regard to the arrest of fugitives from labor, the law does not impose active duties on our citizens generally. They are not prohibited from exercising the ordinary charities of life towards the fugitive. To secrete him or convey him from the reach of his master, or to rescue him when in legal custody, is forbidden; and for doing this a liability is incurred. This gives to no one a just ground of complaint. He has only to refrain from an express violation of the law, which operates to the injury of his neighbor."
He seems to think the right to hold slaves as much a natural right as the absolute right to worship God according to the "dictates of conscience." One man has an unalienable right to liberty, other men an unalienable right to alienate and take it from him!
Here is something in a different spirit from a Boston newspaper.
"The Fugitive Slave Bill.
"This infamous bill has finally passed both branches of Congress.[A] My opinion on this subject may have little weight with those who voted for it, but may help sustain the sinking spirit of some poor disconsolate one, who, having fled from the land of oppressors, is anxiously looking to see if there is any one who will give him a cheering look, or a kind reception, or who dares to give him a crust of bread, or a cup of water, and help him on his way.
"Allow me to say to such an one, that if pursued by the merciless slaveholder, and every other door in Boston is shut against him, there is a door that will be open at No. 2 Beach street, and that the fear of fines and imprisonment will be ineffectual when the pursuer shall demand his victim. If he enters before the fleeing captive is safe, it will be at his peril. I am opposed to war, and all the spirit of war; even to all preparations for what is called self-defence in times of peace; yet I should resist the pursuer, and not allow him to enter my dwelling until he was able to tread me under his feet. I will not trample upon any law, either of my own State, or of the nation, that does not conflict with my conscientious duty to my God; but Jesus has commanded, saying, 'All things whatsoever ye would that men should do to you, do ye even so to them.'
"If, for no crime, I had been taken and sold, and deprived of all the rights of my manhood, and degraded to the rank of a beast of burden; not only deprived of the opportunity to labor for the support of my wife and children, but even deprived of their kind sympathy and companionship, whenever the interest or will of my oppressors should require it; and I should, at the peril of my life, flee from my oppressors, and they should pursue me to the dwelling of some poor disciple of Jesus, it may be that of a colored man, and I should beg of him to protect me, and help me to escape from the pursuer's grasp, should I not hope, if he was a Christian, he would give me bread and water, and help me on my way, regardless of the fines and imprisonment that such a kind act might render him liable to? Could I expect to meet the approbation of my Lord, if I did not do as much for the fleeing slave? Can there be a Christian, in this land of the Pilgrims, who will not do it, and besides, do all in his power to prevent any one of those Senators or Representatives in Congress who voted for that infamous bill from ever again misrepresenting any portion of the friends of freedom, in Boston or elsewhere? It is said, this is a law of the land, and must be obeyed: to such I would say, 'Whether it be right in the sight of God to hearken unto men more than unto God, judge ye,'
"I prefer to obey God, if in so doing I must break the laws of men and be punished, rather than violate the laws of God and obey the laws of men, to escape fines and imprisonments, or even death.
"Boston, Sept. 23, 1850.
T. GILBERT."
Here is yet more:
"The Fugitive Slave Bill.
"Messrs. Editors:—The bold and manly avowal of your correspondent, Mr. T. Gilbert, in last evening's Traveller, in commenting upon what he very justly denominates the 'infamous fugitive slave bill,' is but the very echoing of thousands of hearts equally true to the cause of freedom, and who seek the elevation of the down-trodden sons and daughters of American slavery. That gentleman, acting upon the dictates of an enlightened patriotism, and in deep sympathy with the fleeing captive, has the courage to avow his determination to throw wide open his door, and offers to make his house—even though he should stand alone among his fellow-citizens—an asylum to the fugitive slave, in his retreat from the prison-house of bondage. The paramount claims which he awards to the Divine law over that which is but human, and therefore necessarily imperfect, commend his spirited letter to the consideration of all those that have in any way aided in the passage of a bill at variance with the first principles of civil freedom, and in direct hostility to the instruction of that great Teacher who hath commanded us to 'Do unto others as we would that they should do unto us.' That the determination of your correspondent may be true and unfaltering, is the hearty prayer of one, at least, of his fellow-citizens, who is ready at all times to cooperate in making an asylum for the fugitive slave, even though bonds and imprisonments should prove the penalty.
George W. Carnes.
"Boston, Sept. 26, 1850."
Here follow some characteristic remarks on the terror which the fugitives here in Boston feel in apprehension of being torn from their families and their freedom.
"The Fugitive Slave Law.
"The colored people had a grand time last evening, at Zion's Chapel in Church street. Their object was to denounce the fugitive slave law; and this was done with hearty good-will, or, we should say, malediction.
"The steam would have been well up, without any extraneous elements of excitement; but what added a special interest to the occasion, and raised the temperament to blood-heat, was the announcement, made by Mr. Downing, that the wife of James Hamlet (the fugitive slave who was returned to his owner in Baltimore, a few days since, under a process of law), had died yesterday, of grief and convulsions.
"This filled the measure of indignation which burned in the bosoms of all present, against a law which, besides its other abominations, could produce such fatal effects. In the fever of the moment, a contribution was called for, to defray the expense of her funeral, and about twenty dollars was collected.
"Shortly after, information was received that it was all a mistake about her dying of convulsions, or in any other way; and that she was as well as ever. This was a damper upon the enthusiasm of the occasion, but the money was already collected, and seeing it could not be applied just now to defray her funeral expenses, it was very properly decided to apply it to her living expenses. The meeting adjourned.
"Mrs. Hamlet was in our office yesterday, accompanied by her mother and a colored man. She appeared to be in good health (though of course distressed at the misfortune of her husband), and we hope she will live a thousand years. She certainly shall, if his return will have that effect."—N. Y. Journal of Commerce.
I print these passages, hoping that some hundred years hence they may be found in some old library, and valued as monuments of the state of Christianity in the free States in the year 1850.
[A]I call this bill infamous, because by it the man or woman who is charged with being a slave is deprived of all the means of self-defence allowed to those who are charged with crimes, and to be delivered up summarily, without the right of trial by jury, or any other proper means of proving the charge groundless. Is it a worse crime to be a slave than a thief or a murderer?
[14] The Function of the Jury.
There are two theories of the function of the jury in criminal trials. One I will call the theory of the Government; the other the theory of the People. The first has of late been insisted on in certain courts, and laid down by some judges in their charges to the jury. The second lies, perhaps dimly, in the consciousness of the people, and may be gathered from the conduct of juries in trials where the judges' law would do obvious injustice to the prisoner.
I. According to the theory of the Government. The judge is to settle the law for the jury. This involves two things:
1. He is to declare the law denouncing punishment on the alleged crime.
2. To declare what constitutes the crime. Then the jury are only to determine whether the prisoner did the deed which the judge says constitutes the crime. He, exclusively, is to decide what is the law, and what deed constitutes the crime; they only to decide if the prisoner did the deed. For example, to take a case which has not happened yet, to my knowledge: John Doe is accused of having eaten a Medford cracker; and thereupon, by direction of the Government, has been indicted by a grand jury for the capital offence of treason, and is brought before a traverse jury for trial. The judge tells the jury, 1. That eating a Medford cracker constitutes the crime of treason. 2. That there is a law denouncing death on that crime. Then the jury are to hearken to the evidence, and if it is proved to their satisfaction that John Doe ate the Medford cracker, they are to return a verdict of guilty. They are only to judge of the matter of fact, and take the law on the judge's authority.
II. According to the theory of the People, in order to render their verdict, the jury are to determine three things:
1. Did the man do the deed alleged?
2. If so, Is there a legal and constitutional statute denouncing punishment upon the crime? Here the question is twofold: (a) as to the deed which constitutes the crime, and (b) as to the statute which denounces the crime.
3. If all this is settled affirmatively, then, Shall this man suffer the punishment thus legally and constitutionally denounced?
For example: John Doe is accused of having eaten a Medford cracker, is indicted for treason, and brought to trial; the judge charges as above. Then the jury are to determine:
1. Did John Doe eat the Medford cracker in the manner alleged?
2. If so: (a) Does that deed constitute the crime of treason? and (b) Is there a legal and constitutional statute denouncing the punishment of death on that crime?
3. If so likewise, Shall John Doe suffer the punishment of death?
The first question, as to the fact, they are to settle by the evidence presented in open court, according to the usual forms, and before the face of the prisoner; the testimony of each witness forms one element of that evidence. The jury alone are to determine whether the testimony of the witnesses proves the fact.
The second question, (a) as to the deed which constitutes the crime, and (b) as to the law which denounces the crime, they are to settle by evidence; the testimony of the Judge, of the States' Attorney, of the Prisoner's counsel, each forms an element of that evidence. The jury alone are to determine whether that testimony proves that the deed constitutes the crime, and that there is a law denouncing death against it; and the jury are to remember that the judge and the attorney who are the creatures of the Government, and often paid to serve its passions, may be, and often have been, quite as partial, quite as unjust, as the prisoner's counsel.
The third question, as to punishing the prisoner, after the other questions are decided against him, is to be settled solely by the mind and conscience of the jury. If they know that John Doe did eat the Medford cracker; that the deed legally constitutes the crime of treason, and that there is a legal and constitutional statute denouncing death on that crime, they are still to determine, on their oath as jurors, on their manhood as men, Whether John Doe shall suffer the punishment of death. They are jurors to do justice, not injustice; what they think is justice, not what they think injustice.
The Government theory, though often laid down in the charge, is seldom if ever practically carried out by a judge in its full extent. For he does not declare on his own authority what is the law and what constitutes the crime, but gives the statutes, precedents, decisions and the like; clearly implying by this very course that the jury are not to take his authority barely, but his reasons if reasonable.
In the majority of cases, the statute and the ruling of the court come as near to real justice as the opinion of the jury does; then if they are satisfied that the prisoner did the deed alleged, they return a verdict of guilty with a clear conscience, and subject the man to what they deem a just punishment for an unjust act. Their conduct then seems to confirm the Government theory of the jurors' function. Lawyers and others sometimes reason exclusively from such cases, and conclude such is the true and actual theory thereof. But when a case occurs, wherein the ruling of the judge appears wrong to the jury; when he declares legal and constitutional what they think is not so; when he declares that a trifling offence constitutes a great crime; when the statute is manifestly unjust, forbidding what is not wrong, or when the punishment denounced for a real wrong is excessive, or any punishment is provided for a deed not wrong, though there is no doubt of the facts, the jury will not convict. Sometimes they will acquit the prisoner; sometimes fail to agree. The history of criminal trials in England and America proves this. In such cases the jury are not false to their function and jurors' oath, but faithful to both, for the jurors are the "country"—the justice and humanity of men.
Suppose some one should invent a machine to be used in criminal trials for determining the testimony given in court. Let me call it a Martyrion. This instrument receives the evidence and determines and reports the fact that the prisoner did, or did not, do the deed alleged. According to the government theory, the Martyrion would perfectly perform all the functions of the jury in a criminal case; but would any community substitute the machine for the jury of "twelve good men and true?" If the jury is to be merely the judge's machine, it had better be of iron and gutta-percha than of human beings.
In Philadelphia, some years ago, a man went deliberately and shot a person who had seduced his sister under circumstances of great atrocity. He was indicted for wilful murder. There was no doubt as to the fact, none as to the law, none as to the deed which constituted that crime. The jury returned, "Not guilty"—and were justified in their verdict. In 1850, in New Jersey, a man seduced the wife of another, under circumstances even more atrocious. The husband, in open day, coolly and deliberately shot the seducer; was tried for wilful murder. Here, too, there was no doubt of the fact, of the law, or the deed which constituted the crime of murder; but the jury, perfectly in accordance with their official function, returned "Not guilty."
The case of William Penn in 1670, who was tried under the Conventicle Act, is well known. The conduct of many English juries who would not condemn a fellow-creature to death for stealing a few pounds of money, is also well known, and shows the value of this form of trial to protect a man from a wicked law. I think most men will declare the verdict of "Not guilty" in the case of J. P. Zenger, tried for high treason in New York in 1735, a righteous judgment, made in strict accordance with the official function of the jurors; but it was plainly contrary to the evidence as well as to the ruling of the court.
See Mr. Parker's Defence, p. 76, et seq. for further remarks on the Function of the Jury (Boston, 1855).
[15] So it appeared in September, 1851; but since then the whig party has vindicated its claim to the same bad eminence as the democratic party.
[16] The person referred to fled away from Boston, and in one of the British provinces found the protection for his unalienable rights, which could not be allowed him in New England.
[17] This refers to a speech of Mr. Webster, occasioned by the passage of the fugitive slave law.