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still worse, without change of place, to be tried by a court deadly hostile to freedom, — wresting law and perverting justice and "enlarging testimony," personally inimical to these gentlemen; suppose that the Slave-hunter whose "process" was alleged to be resisted, was kinsman to the court, and the judge had a near relation put on the jury- what opportunity would there be for justice; what expectation of it? Gentlemen of the Jury, that is the state of things which the despots of England wanted to bring about by sending Hancock and Adams over seas for trial! Bernard, Oliver, and Hutchinson were busy in getting evidence against the Patriots of New England, especially against Adams. Affidavits were sent out to England to prove that he was a fit subject to be transported for "trial" there. And an old statute was found from the enlightened reign of Henry VIII. authorizing that mode of trial in case of such "misdemeanor." Commissary Chew wished that two thirds of the lawyers and printers were shipped off to Africa "for at least seven years." Edes and Gill, patriotic printers in Boston, and "all the authors of numberless treasonable and seditious writings," were to go with them. They were all guilty, very guilty! Gentlemen of the Jury, they committed "misdemeanors," they "obstructed officers," they resisted the process of despotism! But alas

"The Dog it was that died."

Edes and Gill never saw Africa; the patriotic lawyers and printers made no reluctant voyage to England.

"The Dog it was that died."

Bernard, Hutchinson, Oliver, and their coadjutors went over the seas for punishment after being tried at home by a Law older than the statute of Henry VIII.; a law not yet repealed, Gentlemen, the Higher Law which God wrote ineffaceably in the hearts of mankind; and indignant America pronounced sentence Tories, Traitors! Commissary Chew learned a lesson at Saratoga in 1777. And the Franklins, the Mayhews, the Hancocks, the Adamses, they also were tried at home, and not found wanting; and the verdict! Gentlemen of the Jury, you know what verdict America has pronounced on these men and their kinsfolk!. There is only one spot in the United States where the Hutchinsons, the Olivers, the Bernards are honored, -that is where the Adamses, the Hancocks, the Mayhews, and the Franklins, with the principles of justice they gave their lives to, are held in contempt! Where is the one spot, that speck of foreign dirt

16 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, et al.

in the clean American garden? It is where the Democratic Herod and the Whig Pilate are made friends that they may crucify the Son of Man, the Desire of all nations, the Spirit of Humanity - it is the court of the Fugitive Slave Bill judges, the Gabbatha of the Kidnappers. Look there!

In 1765 it was too late to conquer America. What Andros and Randolph could accomplish in 1686 with their sixty soldiers, could not be done in 1768 with all the red coats Britain could send out: nor in 1778 with all the Hessians she could purchase. The 19th of April, 1689, foretold another 19th of April-as that many to-morrows after to-day! In the House of Lords Camden and Pitt thought Parliament not omnipotent.1 Samuel Adams declared "Acts of Parliament against natural equity are void; " prayed that " Boston might become a Christian Sparta," and looked to the Law of an Omnipotence somewhat higher than a king or a court. He not only had Justice, but also the People on his side. What came of that last attempt of the last king of New England to establish a despotism here? The same, Gentlemen, which will ultimately come of all such attempts.

Gentlemen of the Jury, there is one great obstacle which despotism has found in Anglo-Saxon lands, steadily opposing its steady attempts to destroy the liberties of the People. It is easy for the controlling power, which represents the Centripetal Tendency of the Nation, to place its corrupt and servile creatures in judicial offices, vested with power to fine, to imprison, and to kill; it is then easy for them to determine on the destruction of all such friends of Justice and Humanity as represent the Centrifugal Tendency of the Nation; and with such judicial instruments it is not difficult to wrest and pervert law in order to crush the Patriots, and construct a word into "Treason," or " evincing express approbation" into a "Misdemeanor," "resisting an officer." And if the final decision rested with such a court, it would be exceeding easy to make way with any man whom the judge's private malignity or the public vengeance of his master, wished to smite and kill. But in the Anglo-Saxon people there is one institution, old, venerable, and well-beloved, which has stood for two thousand years, the great Fortress of Freedom. Thank God, Gentlemen, it still stands. Neither British Kings nor American Slave-drivers have yet brought it to the ground. Of this I must now say a word.

116 Parl. Hist. 168, 195, 658.

6*

III. OF THE GREAT SAFEGUARD WHICH HAS BEEN FOUND SERVICEABLE IN PROTECTING DEMOCRATIC INSTITUTIONS AND THE RIGHTS OF MAN THEY ARE DESIGNED TO DEFEND. OF THE TRIAL BY JURY.

This is an invaluable protection against two classes of foes to the welfare of mankind.

1. Against such as would commit offences upon the property or persons of men, without law and contrary to the form of law, against common criminals of all denominations. Against such it is a sword to resist and punish.

2. Against such as would commit offences upon the property or persons of men, with the form of law and by means of its machinery, - against unjust legislators, corrupt Judges, and wicked magistrates; against such it is a shield defending the public head.

In all the States of Anglo-Saxon origin there are two great popular institutions - Democratic Legislation and Democratic Administration of Law.

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In the process of its historical development the first has come to the representative form of democratic legislation, popular lawmaking by a body of sworn delegates met in an Assembly, local or federal, subject to a constitution, written or only traditional, which is the People's Power of Attorney, authorizing them to do certain matters and things pertinent to law-making. These are a Jury of general Law-makers.

In its process of historical development, the second has also come to a representative form, that of democratic application of law, popular law-applying, by a body of sworn delegates, that is a Court, subject to a constitution and laws, written or only traditional, which are the People's Power of Attorney authorizing them to do certain matters and things pertinent to law-applying. These are a Jury of special Law-appliers.

Neither of them as yet has reached its perfect and ultimate form; both are still in a state of transition. These two are the most valuable institutional safeguards against unorganized selfishness in the community, — against thieves, robbers, murderers, traitors, and the like; against the organized selfishness which gets into places of delegated power, and would misuse the Form of law so as to prevent the People from attaining the Purpose of law.

There is also a body of men intermediate between the two, the Law-Explainers, the Judges. Speaking theoretically they are not ultimately either Law-makers or Law-appliers, yet practically, in their legitimate function, they certainly have much to do with both the

making and applying of laws. For it is their business, not only to preside at all trials, and determine many subordinate questions of mere form to expedite the process, but also from the whole mass of laws, oral or written, statutes and customs, to select such particular laws as they think require special attention, this is like the work of law-makers; and also, in their charges to the grand and petty Juries, to suggest the execution thereof in such cases as the times may bring, this is like the work of the law-appliers.

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The good judge continually modifies the laws of his country to the advantage of mankind. He leaves bad statutes, which aim at or would promote injustice, to sleep till themselves become obsolete, or parries their insidious thrusts at humanity; he selects good statutes which enact natural Justice into positive law; and mixes his own fresh instincts of humanity with the traditional institutions of the age. All this his official function requires of him for his oath to keep and administer the laws binds him to look to the Purpose of Law— which is the Eternal Justice of God, as well as to each special statute. Besides, after the Jury declares a man guilty, the Judge has the power to fix the quantity and sometimes the quality of his punishment. And the discretion of a great noble man will advance humanity.

In this way a good Judge may do a great service to mankind, and correct the mistakes, or repel the injustice of the ultimate makers and appliers of law, and supply their defects. Thus in England those eminent Judges, Hale, Somers, Hobart, Holt, Camden, Mansfield, and Brougham, have done large service to mankind. Each had his personal and official faults, some of them great and glaring faults of both kinds, but each in his way helped enact natural Justice into positive law, and so to promote the only legitimate Purpose of human legislation, securing Natural Rights to all men. To such Judges mankind owes a quite considerable debt.

But in America the Judge has an additional function; he is to determine the Constitutionality of a law. For while the British King and Parliament claim to be legislatively omnipotent, supreme, the Ultimate human source of law, the Living Constitution of the realm, and therefore themselves the only Norm of law, howsoever illfounded the claim may be, in America it is the People, not their elected servants, who are the Ultimate human source of law, the Supreme Legislative power. Accordingly the People have prepared a written Constitution, a Power of Attorney authorizing their servants to do certain matters and things relating to the government of the nation. This constitution is the human Norm of law for all the servants of the people. So in administering law the Judge is to ask, Is the statute constitutional? does it square with the Norm of law

which the People have laid down; or have the legislative servants exceeded their Power of Attorney, and done matters and things which they were not empowered to do? In deciding this question, the Judge is to consider not merely the Provisional Means which the Constitution designates, but also the Ultimate Purpose thereof, the Justice and Liberty which, as its preamble declares, it expressly aims at, and which are also the ideal End of all sound legislation.

There is no country in the world where a great man has so noble a place and opportunity to serve mankind as in America.

But a wicked Judge, Gentlemen, may do great harm to mankind, as I have already most abundantly shown. For we have inherited a great mass of laws, customary or statutory; the legislature repeals, modifies, or adds to them; the Judge is to expound them, and suggest their application to each special case. The Jury is to apply or refuse to apply the Judge's "law." In all old countries, some of these laws have come from a barbarous, perhaps even from a savage period; some are the work of tyrants who wrought cruelly for their own advantage, not justly, or for the good of mankind; some have been made in haste and heat, the legislature intending to do an unjust thing. Now an unjust Judge has great power to select wicked statutes, customs, or decisions; and in no country has he more power for evil than in the federal courts of the United States. For as in England, when the King-power makes a wicked law, the Judge, who is himself made by that same power, may declare it just, and execute the heinous thing; so in America, when the Slave power enacts a wicked statute, contrary to the purpose of the constitution and to the natural justice of God, the Judge, who is the creature of that same power, may declare it constitutional and binding on all the People who made the constitution as their Power of Attorney. Thus all the value of the constitution to check despotism is destroyed, and the Fortress of Freedom is betrayed into the hands of the enemies of liberty!

But barbarous laws must not be applied in a civilized age; nor unjust laws enforced by righteous men. While left unrepealed, a fair and conscientious Jury will never do injustice, though a particular statute or custom demand it, and a wicked Judge insist upon the wrong; for they feel the moral instinct of human nature, and look not merely to the letter of a particular enactment, but also to the spirit and general purpose of law itself, which is justice between man and The wicked Judge, looking only to the power which raised him to his place, and may lift him higher still, not to that other Hand which is over all,- or consulting his own meanness of nature, selects the wicked laws, and makes a wicked application thereof. Thus in America, under plea of serving the people, he can work most hideous wrong.

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