mould it into such vessels of tyranny as he can fill with his private or judicial wrath and then empty on the heads of his personal foes or such as thwart his ambitious despotism or the purposes of his government. So he delivers his CHARGE TO THE GRAND-JURY.

By way of introduction, he tells them

(1.) That they are not the Makers of Law. Legislation is the function of Congress and the President; even the COURT, the "SUPREME COURT OF THE UNITED STATES" itself cannot make a law, or repeal one!

(2.) That they are not the Declarers, or Judges of Law. To know and set forth the Law is the function of the COURT. It is true every man in his personal capacity, as private citizen, is supposed to know the law, and if he violates it, of his own presumption, or by the persuasion of some others who falsely tell him about the law, he must be punished; for "ignorantia nemini excusat," ignorance excuseth none; the private advice of the full bench of judges would be held no excuse. But in their official capacity of jurors they are supposed to know nothing of the Law whatsoever.

It seems taken for granted that though one of the Jurors may be an old judge of the Supreme Court of the United States, and have sat on the bench for twenty years; nay, though he may be also an old legislator of twenty years' standing, and as legislator have made the very statute in question, and also as judge subsequently have explained and declared it, yet the moment he takes the oath as Grand-Juror, all this knowledge is "gone from him" as completely as Nebuchadnezzar's dream. The court is the assembly of magicians, astrologers, sorcerers, and Chaldeans to restore it. Congress might pass a law compelling ex-judges, ex-senators, and ex-representatives-who are so numerous now-a-days, and continually increasing and likely to multiply yet more,- to serve as grand-jurors; soon as they take their oath, they are in law held and accounted to be utterly ignorant of law, and bound to accept as law whatsoever the court declares such. The acting judge may be young, blind, ignorant, ambitious, drunk with brandy or rage, he may have a personal interest in promoting the law, and may notoriously twist it so as to gratify his peculiar or familistic spleen, still the jury is to accept the court's opinion for the nation's law. Any political ignoramus, if hoisted to the "bench," has judicial authority to declare the law, it is absolute. If he errs," he is responsible to the proper authorities- he may be removed by impeachment;" but the jury must not question the infallibility of his opinion. For though the grand-jury is “the country," the judge is not only all that, and more so; but is "the rest of mankind" besides. Then the judge goes further talks solemnly, yet familiar; to wheedle jurors the better, he mixes himself with them, his "WE" embracing

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both judge and jury. I shall now quote actual language used in this very court, by the late Hon. Judge Woodbury:

“One of the peculiar dangers . . . to which jurors, as well as judges, are exposed, is the unpopularity, or obnoxiousness violated, leading us... to be timid or matter being a delicate or offensive one." well as the sword of Justice, in humble imitation of the Divine Judge on high," it is our duty to "let law, as law, [that is, whether it is just or unjust] reign supreme, reign equally over all, and as to all things, no less than persons; and till it is changed by the proper authorities, not to interpose our individual caprices or fancies or speculations [that is, our convictions of justice] to defeat its due course and triumph." We must not "disregard laws, when disliked, because we can, under the universal suffrage enjoyed here, otherwise help legally to change or annul them by our votes." "As jurors you have sworn to obey them till so changed, and ought to stand by them faithfully, to the last moment of their existence." "We are safest in our capacity of public officers. . . to execute the laws as they are [right or wrong], while others who may make or retain bad laws in the statute-book, are answerable for their own wrong. If they preserve laws on the statute-book, which are darkness rather than light and life to the people, theirs is the fault, [that is, if a blacksmith make a dagger, and tell us to stab an innocent man with it, we must obey, and the blame will rest on the blacksmith who made the dagger, not on the assassin who murdered with it!] In some cases, also, when we think the existing laws and punishments are wrong, and hence venture to encourage others in disobedience by neglecting to indict and punish offenders, it should make us pause and halt when it is remembered, it may turn out that we ourselves may not be exactly Solons or Solomons in these respects, nor quite so much wiser than the laws themselves, as sometimes we are hastily induced to suppose." "Miserable must be the fate of that community where the ministers of the law are themselves disposed to disregard it; ""government will become a curse;" "and this whether such a betrayal of public trust springs from the delusions of false philanthropy or fanatical prejudices, no less than when it comes from unbridled licentiousness."

of any particular law, which has been unfaithful in enforcing it. . . the subject"While we.. are holding the scales as

“We must not lay the flattering unction to our souls, that because by some possibility there may not be guilt, we can rightfully discharge as if there were no guilt." "It is sometimes urged against agreeing to indict, convict, or punish, that we have conscientious scruples on the subject;" "if sincere tenderness of conscience presses on the heart and mind against executing some of the laws, it should lead us to decline office or resign; not to neglect or disobey, while in office, what we have promised and sworn to perform;" [as if the juror swore to do injustice !]" or if a majority prove unaccommodating or inflexible against us, then it behooves those differing from them . . to withdraw entirely from such a government, and emigrate." [So the juror must not try to do justice at home, but seek it in exile.] "But in all such cases we must take special care not to indulge ourselves in considering an act as a sin which is only disagreeable, or the result of only some prejudice or caprice.” “The presumptions are that all laws, sanctioned by such intelligent, numerous, and respectable members of society as compose our legislative bodies, are constitutional, and until pronounced otherwise by the proper tribunal, the judiciary, it is perilous for jurors to disobey them," [that is, to refuse to execute them]" and it is trifling with their solemn obligations to disregard them in any way and on any occasion, from constitutional doubts, unless of the clearest and strongest character." 1

1 The above extracts are from Judge Woodbury's charge to the Grand-Jury, in Circuit Court of United States, at Boston, taken from the Evening Traveller, copying the reprint of Boston Daily Advertiser, of October 25, 1850.

He then tells them that no feeling of Humanity must be allowed to prevent them from executing any law which the court declares to them, "whether the statute is a harsh one, is not for us to deter mine."1 A cruel law is to be enforced as vigorously as a humane one; an unjust law as a just one; a statute which aims to defeat the purpose of Law itself, just as readily as one which aims to secure the dearest rights of humanity. If the statute is notoriously wicked, as in the case supposed, then the Judge says: "It is to be observed that this statute [the fugitive slave bill] subjects no person to arrest who was not before liable to be seized and carried out of the State;" "Congress has enacted this law. It is imperative, and it will be enforced. Let no man mistake the mildness and forbearance with which the criminal code is habitually administered, [as in cases of engaging in the slave-trade] for weakness or timidity. Resistance [to the fugitive slave bill] must make it sternly inflexible." "As great efforts have been made to convince the public that the recent law [the fugitive slave bill] cannot be enforced with a good conscience, but may be conscientiously resisted. . . I deem it proper to advert, briefly, to the moral aspects of the subject." "The States without the constitution would be to each other foreign nations." "Those, therefore, who have the strongest convictions of the immorality of the institution of slavery, are not thereby authorized to conclude that the provision for delivering up fugitive slaves is morally wrong, [that is, if it be wrong to hold man in bondage, it is also not wrong,] or that our Fathers. . . did not act wisely, justly, and humanely in acceding to the compacts of the Constitution." "Even those who go to the extreme of condemning the Constitution and the laws made under it, as unjust and immoral, cannot . . . justify resistance. In their view, such laws are inconsistent with the justice and benevolence and against the will of the Supreme Lawgiver, and they emphatically ask, 'Which shall we obey, the law of man, or the Will of God?' I answer, OBEY BOTH!' The incompatibility which the question assumes [between Right and Wrong, or Good and Evil, or God and the Devil] does not exist! Unjust and oppressive laws may indeed be passed by human governments. But if Infinite and Inscrutable Wisdom permits political society, having the power of human legislation, to establish such laws, may not the same Infinite and Inscrutable Wisdom permit and require an individual, who has no such power, to obey them?" [So "if Infinite and Inscrutable Wisdom permits" a Blacksmith

1 Words of Chief Justice Parker, in Commonwealth vs. Griffith, 2 Pickering's Reports, 19, cited with approbation by Chief Justice Shaw, in the Sims case, 7 Cushing's Reports, 705, and also cited from him and acted on by fugitive slave bill Commissioner Loring, in the Burns case.

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having the power" to forge steel and temper it, to make daggers, "may not the same Infinite and Inscrutable Wisdom permit and require the individual" carpenter or tailor, who has no such power, to use the dagger for the purpose intended!] "Conscience, indeed, is to be reverenced, and obeyed; but still we must remember that it is fallible, especially when the rights of others are concerned, [that is, the right to kidnap men] and may lead us to do great injustice, [by refusing to punish a man who helps his brother enjoy his self-evident, natural, and unalienable right to life, liberty, and the pursuit of happiness]. The annals of the world abound with enormities committed by a narrow and darkened conscience." A statute "is the moral judgment, the embodied conscience of the political community, [the fugitive slave bill the 'embodied conscience' of New England]. To this not only is each individual bound to submit, [right or wrong,] but it is a new and controlling element in forming his own moral judgment;" [that is, he must. think the statute is just]. "Obedience is a moral duty, [no matter how immoral the law may be]. This is as certain as that the Creator made man a social being;" "to obey the laws of the land [no matter what laws, or how wicked soever] is, then, to obey the Will of God!"

Gentlemen of the Jury, you think I have imagined and made up this language out of my own fancy. No, Gentlemen, I could not do it. I have not the genius for such sophistry. I only quote the words of the Hon. Judge Peleg Sprague delivered to the grand-jury of this Circuit Court of United States at Boston, March 18, 1851.1 Gentlemen, I showed you what Thurlow could say at Horne Tooke's trial on the 4th of July, 1777. Nay, I quoted the words of Powis and Allybone, and Scroggs and Jeffreys.2 But, Gentlemen, the judge of New England transcends the judges of Old England.

3. Having made this general preparation for his work and shaped his vessel to the proper form, he proceeds to fill it with the requisite matter.

(1.) He practically makes the Law just as he likes, so as to suit the general purpose of the government, or the special purpose of his private vengeance or ambition. Thus,

a. Out of the whole complex of law-statutes, decisions, customs, charges, opinions of judicial men, since the Norman conquest or before it, he selects that special weapon which will serve his present turn. And tells the jury, "that is the law which you are sworn to enforce. I have not made it-it is the Lex terræ, the Law of the

1 See Boston Daily Advertiser of March 19, 1851.

2 See above, p. 33, 37, et al.

Land."

Or if in such an arsenal, so copious, he finds no weapon ready made, then

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