The Trial of Theodore Parker / For the "Misdemeanor" of a Speech in Faneuil Hall against Kidnapping, before the Circuit Court of the United States, at Boston, April 3, 1855, with the Defence

by Theodore Parker

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

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

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

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

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

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

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

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

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

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