Thus he constructs the Trial-Jury, the Law, the Evidence, the Crime, and the Fact.

Now, Gentlemen, when this is done and done thoroughly, the Judge has kept all the Forms, Presentment by the Grand-Jury, and Trial by a Petty Jury; but the substance is all gone; the Jury is only a stalking horse, and behind it creeps the Judicial servant of Tyranny, armed with the blunderbuss of law,—made and loaded by himself,—and delivers his shot in the name of law, but against Justice, that purpose of all law. Thus can tyranny be established—while all the forms of law are kept.[119]

Gentlemen of the Jury, let me make this more clear by a special case wholly fictitious.—Thomas Nason, a "Non-Resistant" and a Quaker, is a colored citizen of Boston, the son and once the slave of Hon. James Nason of Virginia, but now legally become a free man by self-purchase; he has the bill of sale of himself in his pocket, and so carries about him a title deed which would perhaps satisfy your Honors of his right to liberty. But his mother Lizzie (Randolph) Nason, a descendant of both Mr. Jefferson and Mr. Madison,—for Virginia, I am told, can boast of many children descended from two Presidents, perhaps from three, who

"Boast the pure blood of an illustrious race,
In quiet flow from Lucrece to Lucrece"—

from Saxon master to African slave,—is still the bondwoman of the Hon. James, the father of her son Thomas. From the "Plantation manners" of her master, the concubine, "foolishly dissatisfied with slavery," flies to Boston, and takes refuge with her Quaker son, who conceals his mother, and shelters her for a time. But let me suppose that his Honor Judge Curtis, while at Washington, fired with that patriotism which is not only habitual but natural and indigenous to his Honor, informs Mr. Nason of the hiding-place of his female slave, thus betraying a "mistress" to her master, no longer, alas, her "keeper." It is no injurious imputation—it is an imaginary honor I attribute to the learned and honorable Judge. Mr. Nason sends the proper agent to Boston to save the Union of States by restoring the union of master and slave. Mr. George Ticknor Curtis, fugitive slave bill commissioner, and brother to the Hon. Judge, issues his warrant for kidnapping the mother; his coadjutor and friend, Mr. Butman, attempts to seize her in her son's house. Thomas, unarmed, resists the intruder, and with a child's pop-gun drives that valiant officer out of the house, and puts the mother in a place of safety,—beneath the flag of England, or the Pope, or the Czar. Commissioner Curtis telegraphs the news to Washington,—announcing a "new case of treason—more 'levying war!'" The Secretaries of State and of War write dreadful letters, breathing fire and slaughter, and President Pierce, a man of most heroic courage, alike mindful of his former actual military exploits at Chapultepec, of his delegated triumph at Greytown, and of the immortal glory of Mr. Fillmore, issues his Proclamation, calling on all good citizens, and especially on the politicians of his party, to "Save the Union" from the treason of this terrible Thomas Nason, who will blow up the Constitution with a pop-gun!

At the next session of the Honorable Circuit Court of the United States in and for the first District, his Honor the Hon. Benjamin Robbins Curtis, Judge, constructs and charges the Grand-Jury in the manner already set forth. He instructs them that if any man, by force and arms, namely, with a pop-gun, does resist a body of United States officers, attempting to kidnap a woman, his own mother, that he thereby levies war against the United States, and accordingly commits the crime of "Treason" which consists in levying war against the United States—the "amount of force is not material." And it is their duty to indict all persons in that form offending. The Attorney, the Hon. Benjamin Franklin Hallett, offers to "bet ten dollars that I will get" Nason "indicted," and urges the matter. But no bill is found, the Jury is discharged, a new Jury is summoned, and Mr. William W. Greenough, the Brother-in-law of the Judge is put on it, "drawn as Juror"—and then a "true bill" is found, Mr. Hallett actually making an indictment that cannot be quashed!

On the day before Thanksgiving Thomas Nason is arraigned; and is brought to trial for this new Boston Massacre on the anniversary of the old one—on the Fifth of March. The judge constructs a Trial-Jury as before. Mr. Hallett, assisted by Mr. Thomas, Mr. George T. Curtis, and Commissioner Loring, manage the case for the government, bringing out the whole strength of the kidnapping party, and directing this Macedonian phalanx of Humanity and Law and Piety against a poor friendless negro. Mr. Hale, Mr. Ellis, and Mr. Dana defend him. Officer Butman and his coadjutors—members of the "Marshal's guard"—testify that Mr. Nason attacked them with the felonious weapon above named, putting them in mortal bodily fear greater than that which in Mexico once overthrew the (future) President of all this land! Mr. Herrman, the dealer in toys, testifies that he sold the murderous weapon for twenty-five cents to Mr. Nason who declared that he "could frighten Butman with it;" that it is of German manufacture, and is called a Knallbüchse!

Judge Curtis sums up the matter. He tells the jury, (1.) That they are not to judge of the Law punishing treason, but to take it from the Court. (2.) Not to judge what Act constitutes the Crime of Treason, but take that also from the Court, and if the Court decides that offering a pop-gun at a rowdy's breast constitutes the crime of treason, they are to accept the decision as constitutional law. (3.) They are not to ask if it be just to hang a man for thus resisting a body of men who sought to kidnap his mother, for even if it be unjust and cruel it is none of their concern, for they must execute a cruel and unjust law with even more promptitude than a just and humane one, and in the language of the "Defender of the Constitution," "conquer their prejudices," and "do a disagreeable duty." (4.) If they think the Law commands one thing and the Will of God exactly the opposite, in the well-known words of Judge Sprague, they must "obey both" by keeping the law of man when it contradicts the law of God, for they can never be good Christians so long as they scruple to hang a Quaker for driving off a kidnapper; and obedience to the law is a moral duty, no matter how immoral the law may be, and "to obey the law of the land is to obey the will of God." (5.) But they have a simple question of fact to determine; namely, Did the Defendant resist officer Butman in the manner set forth? If satisfied of that, they must find him guilty. No mistaken notions of Justice must induce them to refuse their verdict—for they are not to make the law, but only help execute it; and their conscience is so "fallible, especially when the rights of others are concerned, and may lead them to do great injustice," for "the annals of the world abound with enormities committed by a narrow and darkened conscience." They must not ask if it be "religious" to do so—for to use the words of the most religious of all Americans, a man of most unspotted life in public and private, "Religion has nothing to do with politics," and this is a political trial. If there be any injustice in the law and its execution the blame lies with the makers thereof not with the jurors, and they may wash their hands as clean as Pilate's from the blood of Christ. Besides, if there be injustice the President can pardon the offender, and from his well-known religious character—which rests on the unbiased testimony of his own minister and the statement of several partisan newspapers published in the very heat of the election, when men, and especially politicians looking for office, never exaggerate,—he doubtless "will listen to petitions for a commutation of punishment!"