Look at the next safeguard of society. Setting aside the institution 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 institution 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 institution 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 institutions, 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 If it works well in one State it is soon tried in others; if not, it is repealed and ceases to be.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 God 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 constitutional 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, passionate, 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 pass 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 passes 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 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?