But if the judge usurps these two functions of the jury, and himself decides the Question of Law and its Application, you see what follows—consequences the most ghastly, injustice in the name of Law, and with the means of Law! Yes, tyranny spins and weaves with the machinery of Freedom, and a Nessus-shirt of bondage is fixed on the tortured body of the People. The power of the judge will be especially dangerous in times of political excitement, and in political trials.
Gentlemen, this matter is so important, and the danger now so imminent that you will pardon me a few words while I set forth the mode by which this wickedness goes to work, and what results it brings to pass. Follow me in some details.
I. As to the judges dealing with the Grand-Jury.
Here let me take the examples from the circuit court of the United States in a supposed case where a man is to be tried for violating the fugitive slave bill. You will see this is a case which may actually happen.
1. The judge challenges the whole body summoned as grand-jurors and catechizes them after this fashion.
(1.) "Have you formed an opinion that the law of the United States, known as the Fugitive Slave Law of 1850, is Unconstitutional, so that you cannot indict a person under it for that reason, although the court holds the statute to be Constitutional?"
This is riddling No. 1. Such as think the fugitive slave bill unconstitutional are at once set aside. The judge proceeds to ask such as have no doubt that it is constitutional,
(2.) "Do you hold any opinions on the subject of Slavery in general, or of the Fugitive Slave Law in special, which would induce you to refuse to indict a man presented to you for helping his brother to freedom?"
This is riddling No. 2; other "good men and true" are rejected, but some are found "faithful" to the purposes of the court; and the judge puts his next question,