b. Out of that pile of ancient instruments he selects something which he forges over anew, and thus constructs a new form of law when he could not find one ready for his hand. If a straight statute will not catch the intended victims he perverts it to a hook and therewith lays hold. He thus settles the law.
(2.) He next practically determines what Deed constitutes the "offence" forbidden by the law he has just made. So he selects some act which it is notorious was done by the man he strikes at, and declares it is the "offence," the "crime." Here too he is aided by ancient precedent; whereof if our brief Republican annals do not furnish examples, he hies to the exhaustless treasury of Despotism in the English common law. He opens the "Reports," the "Statutes of the Realm," or goes back to the "Year-books." Antiquity is rich in examples of tyranny. "He readily finds a stick who would beat a dog." "Such are the opinions," quoth he, "of the venerable Chief Justice Jones," or "my Lord Chancellor Finch," or "Baron Twysden," or "my Lord Chief Justice Kelyng."
Thus the Judge constructs the Jury—out of such men as he wishes for his purpose; constructs the Law, constructs the Offence, the Crime: nay, he points out the particular Deed so plain that he constructs the Indictment. All that is left for the "Grand Inquest" is the mechanical work of listening to the "evidence" and signing the Bill—"Billa Vera," a true bill. That they may accomplish this work he delivers them over to the District Attorney; he may be also an agent of the government, appointed for his party services, looking for his reward, expecting future pay for present work, extra pay for uncommon zeal and "discretion." Gentlemen of the Jury, this may be the case—humanity is fallible, and it sometimes may happen even in the Circuit Court of the United States that such a man should hold the office of District Attorney. For it is not to be expected, nay, it is what we should not even ask—that this place should always be filled by such conspicuous talent, such consummate learning, and such unblemished integrity as that of the present attorney (Hon. Mr. Hallett). No, Gentlemen of the Jury, as I look round these walls I am proud of my country! Such a District Attorney, so bearing "his great commission in his look;" his political course as free from turning and winding as the river Missouri; high-minded, the very Cæsar's wife of democratic virtue,—spotless and unsuspected; never seeking office, yet alike faithful to his principles and his party; and with indignant foot spurning the Administration's bootless bribe,—the fact outtravels fancy. Nay, Gentlemen, it is something to be an American—I feel it as I look about me. For the honorable Attorney is perfectly suited to this Honorable Court;—yea, to the Administration which gives them both their dignity and their work and its pay. Happy country with such an Attorney, fortunate with such a Court, but thrice and four times fortunate when such several stars of justice unite in such a constellation of juridic fire!
But, Gentlemen, it is too much to ask of human nature that it should be always so. In my supposed case, the judge delivers the persons accused to the officers, restless, bellowing, and expecting some fodder to be pitched down to them from the national mow, already licking their mouths which drool with hungry anticipation. They will swear as the court desires. Then the Attorney talks with the most pliant jurors, coaxes them, wheedles them, stimulates them to do what he wants done. Some he threatens with the "displeasure of the government;" he swears at some. After all, if the jury refuse to find a bill,—a case, Gentlemen, which has happened,—they are discharged; and a new jury is summoned; some creature of the government is put on it, nay, perhaps some kinsman of the anxious judge, at least a Brother-in-Law, and at last twenty-three men are found of whom twelve consent to a "True Bill." Then great is the joy in the judge's heart,—it is corrupt judges I am speaking of, Gentlemen of the Jury, not of upright and noble men, may it please your Honors! There is great joy in the judge's heart, and great rejoicing amongst his kinsfolk and intimate friends who whinney and neigh over it in the public journals, and leer at the indicted man in the street, lolling out their tongues greedy for [his] vengeance!
II. Now, Gentlemen, look next at the judge's dealing with the Trial-Jury. He proceeds as before.
1. He sifts the material returned to him, through those three sieves of questioning, and gets a Jury with no hard individual lumps of solid personal independence. They take the oath which you have just taken, Gentlemen: "You shall well and truly try the issue between the United States and the Defendant at the Bar, according to the law, and the evidence given you, so help you God!"
The facts are then presented, and the case argued on both sides.
2. The Judge sums up, and charges the Jury. He explains their oath; to try the issue according to the law does not mean (a) according to the whole complex which is called "Law," or "The Law," but according only to that particular statute which forbids the deed charged,—for otherwise the Jury must judge of the Purpose of Law, which is Justice, and inquire into the rightfulness of the deed and of the statute which forbids it. Nor does it mean (b) by the Jurors' notion of that statute, but only by the Judge's opinion thereof. He tells them—if they proceed to inquire into the natural Justice of the deed, or into the law which forbids it, then they transcend their office, and are guilty of "Perjury," and reads them the statute for the punishment of that offence, and refers to examples—from the times of the Stuarts, though he does not mention that—when Jurors were fined and otherwise severely dealt with for daring to resist a judge.
Then out of the facts testified to by the government witnesses, he selects some one which is best supported, of which there is no doubt. He then declares that the question of "Guilty or not guilty" turns on that point. If the accused did that deed—then he is Guilty. So the moral question, "Has the man done a wrong thing?" is taken from their consideration; the intellectual question, "Has he done a deed which amounts to the crime forbidden?" is not before them; only the mechanical question, "Did he do that particular act?" They are not to inquire as to the Justice of the law, its Constitutionality, or its Legality; nor the Justice or the Criminality of the deed—only of its Actuality, Did he do this deed? Nay, sometimes the Judge treats them as cattle, and orders them to find the facts for the government. If they refuse, he threatens them with punishment.