Chapter III: Of the Great Safeguard Which Has Been Found Serviceable in (3)

(4.) The same year, John Frost, Esq., "a gentleman" and attorney, when slightly intoxicated after dinner, and provoked by others, said, "I am for equality. I see no reason why any man should not be upon a footing with another; it is every man's birthright." And when asked if he would have no king, he answered, "Yes, no king; the constitution of this country is a bad one." This took place in a random talk at a tavern in London. He was indicted as a person of a "depraved, impious, and disquiet mind, and of a seditious disposition, and contriving, practising, and maliciously, turbulently, and seditiously intending the peace and common tranquillity of our lord the king and his laws to disturb," "to the evil example of all others in like case offending." He was sentenced to six months in Newgate, and one hour in the pillory! He must find sureties for good behavior for five years, himself in L500, two others in L100 each, be imprisoned until the sureties were found, and be struck from the list of attornies![132]

[Footnote 132: 22 St. Tr. 471.]

(5.) Rev. William Winterbotham, the same year, in two sermons, exposed some of the evils in the constitution and administration of England, and for that was fined L200, and sentenced to jail for four years,--a good deal more than $300 and twelve months' imprisonment.[133]

[Footnote 133: Ibid. 823.]

(6.) The same year, Thomas Briellat, a London pump-maker, in a private conversation said, "A reformation cannot be effected without a revolution; we have no occasion for kings; there never will be any good time until all kings are abolished from the face of the earth; it is my wish that there were no kings at all." "I wish the French would land 500,000 men to fight the government party." He was tried, found guilty, and sentenced to a fine of L100, and sent to jail for a year.[134]

[Footnote 134: Ib. 909.]

(7.) Richard Phillips, afterwards Sheriff of London, was sent to jail for eighteen months for selling Paine's Rights of Man; for the same offence two other booksellers were fined and sent to Newgate _for four years_! A surgeon and a physician were sent to Newgate for two years for having "_seditious libels in their possession_." Thirteen persons were indicted at once.[135]

[Footnote 135: Ibid. 471. Wade, Brit. Hist. (1847), 582, _et seq._]

(8.) In 1793 a charge was brought against the Rev. Thomas Fyshe Palmer, formerly a Senior Fellow of Queen's College, Cambridge, and then a Unitarian minister at Dundee. Mr. Palmer wrote an Address which was adopted at a meeting of the Friends of Liberty and published by them, which, in moderate language, called on the People "to join us in our exertions for the preservation of our perishing liberty, and the recovery of our long lost rights." He distributed copies of this address. He was prosecuted for "Leasing-making," for publishing a "seditious and inflammatory writing." The (Scotch) jury found him guilty, and the judges sentenced him to _transportation for seven years_. The sentence was executed with rigorous harshness.[136]

[Footnote 136: 23 St. Tr. 237; Belsham's History of George III.]

(9.) The same year Thomas Muir, Esq., was brought to trial for Leasing-making or public Libel at Edinburgh. He was a promising young lawyer, with liberal tendencies in politics, desiring the education of the great mass of the people and a reform in Parliament. He was a member of various Reform societies, and sometimes spoke at their meetings in a moderate tone recommending only legal efforts--by discussion and petition--to remedy the public grievances. His Honor (Mr. Curtis) who belongs to a family so notoriously "democratic" in the beginning of this century, and so eager in its denunciations of the Federalists of that period, knows that the law even of England--which they so much hated--allows all that. It appeared that Mr. Muir also lent a copy of Thomas Paine's "Rights of Man" to a mechanic who asked the loan as a favor. For these offences he was indicted for sedition, charged with instituting "a Society for Reform," and with an endeavor "to represent the government of this country as oppressive and tyrannical, and the legislative body as venal and corrupt." It was alleged in the indictment that he complained of the government of England as "costly," the monarchy as "useless, cumbersome, and expensive," that he advised persons to read Paine's Rights of Man, and circulated copies of a periodical called "the _Patriot_," which complained of the grievances of the people. On trial he was treated with great insolence and harshness, reprimanded, interrupted, and insulted by the agents of the government--the court. An association of men had offered a reward of five guineas for the discovery of any person who circulated the writings of Thomas Paine. Five of the fifteen jurors were members of that association,--and in Scotland a bare majority of the jurors convicts. Mr. Muir defended himself, and that ably. Lord Justice Clark charged his packed jury:--

"There are two things which you should attend to, which
require no proof. The first is that the British Constitution
is the _best in the world_!" "Is not every man _secure in
his life, liberty, and property? Is not happiness in the
power of every man?_ 'Does not every man sit safely under
his own vine and fig-tree' and none shall make him afraid?"
"The other circumstance ... is the state of the country
during last winter. _There was a spirit of sedition and
revolt going abroad._" "I leave it for you to judge whether
it was perfectly innocent or not in Mr. Muir ... to go about
... among _the lower classes of the people ... inducing them
to believe that a reform was absolutely necessary, to
preserve their safety and their liberty_, which, had it not
been for him, they never would have suspected to have been
in danger." "He ran a parallel between the French and
English Constitutions, and _talked of their respective
taxes_ ... and gave a preference to the French." "He has
brought many witnesses to prove his general good behavior,
and his recommending peaceable measures, and petitioning to
Parliament." "Mr. Muir might have known that _no attention
could be paid to such a rabble, what right had they to
representation_? He could have told them the _Parliament
would never listen to their petition_! How could they think
of it? A government in any country should be just like a
corporation; and in this country it is _made up of the
landed interest, which alone has a right to be
represented_."

Gentlemen, you might think this speech was made by the "Castle Garden Committee," or at the Boston "Union Meeting" in 1850, but it comes from the year 1793.

Of course the jury found him guilty: the judges sentenced him to _transportation for fourteen years_! Lord Swinton quoted from the Roman law, that the punishment for sedition was _crucifixion_, or exposure _to be torn to pieces by wild beasts_, or transportation. "We have chosen the _mildest of these punishments_." This sentence was executed with great cruelty. But Mr. Pitt, then in the high places of power, declared these punishments were dictated by a "sound discretion."[137]

[Footnote 137: 23 St. Tr. 117; 30 Parl. Hist. 1486, for Adams' Speech in Commons.]

For like offences several others underwent the same or similar punishment. But these enormities were perpetrated by the government in Scotland--where the Roman Law had early been introduced and had accustomed the Semi-Saxons to forms of injustice foreign to the ethnologic instinct and historic customs of the parent tribe. But begun is half done. Emboldened by their success in punishing the friends of Humanity in Scotland, the ministry proceeded to attempt the same thing in England itself. Then began that British Reign of Terror, which lasted longer than the French, and brought the liberties of the People into such peril as they had not known since William of Orange hurled the last of the Stuarts from his throne. Dreadful laws were passed, atrocious almost as our own fugitive slave bill. First came "the Traitorous correspondence Bill;" next the "Habeas Corpus Suspension Act;" and then the "Seditious Practices Act," with the "Treasonable Attempts Bill" by legislative exposition establishing constructive treason! All these iniquitous measures were brought forward in Parliament by Sir John Scott--then Attorney-General, one of those North Britons who find the pleasantest prospect in Scotland is the road to London. He also was vehemently active in defending the tyranny of the Scotch judges just referred to, as indeed all judicial insolence and legal wrong.[138] He opposed all attempts to reform the law which punished with death a theft of five shillings. In two years there were more prosecutions for seditious libel than in twenty before. But Scott had his reward, and was made Lord Chancellor in 1801, and elevated to the peerage as Lord Eldon.[139]

[Footnote 138: 30 Parl. Hist. 581; 31 Parl. Hist. 520, 929, 1153, _et al._; 32 Parl. Hist. 370.]

[Footnote 139: 7 Campbell, 119; 1 Townsend's Judges; Life of Vic. Gibbs.]

8. Then came that series of trials for high treason which disgraced the British nation and glutted the sanguinary vengeance of the court. The government suborned spies to feign themselves "radicals," join the various Reform Societies, worm themselves into the confidence of patriotic and philanthropic or rash men, possess themselves of their secrets, catch at their words, and then repeat in court what they were paid for fabricating in their secret haunts. A ridiculous fable was got up that there was a plot to assassinate the King! Many were arrested, charged with treason--"constructive treason." On the evidence of spies of the government, hired informers--such men, Gentlemen of Jury, as Commissioner Loring and Marshal Freeman jointly made use of last year to kidnap Mr. Burns--estimable men were seized and locked up in the most loathsome dungeons of the kingdom, with intentional malignity confined amongst the vilest of notorious criminals. The judges wrested the law, constructing libels, seditions, "misdemeanors," treasons--any crime which it served their purpose to forge out of acts innocent, or only rash or indiscreet. Juries were packed by bribed sheriffs, and purchased spies were brought in evidence to swear away the liberty or the life of noble men. One of the government witnesses was subsequently convicted of ten perjuries! No man was safe who dared utter a serious word against George III. or Mr. Pitt.

Here, Gentlemen, I shall mention two cases of great importance in which the jury did their duty and turned the stream of ministerial and judicial tyranny.

(1.) In 1794 in a bill suspending the Habeas Corpus, Parliament declared "that a treacherous and detestable conspiracy had been formed for subverting the existing laws and constitution, and for introducing the system of anarchy and violence which had lately prevailed in France." Soon after the grand-jury for Middlesex indicted twelve men for high treason; they were members of some of the Societies mentioned just now. "The overt act charged against them was, that they had engaged _in a conspiracy to call a convention_, the object of which was to bring about a revolution in the country," but it was not alleged that there was any plot against the King's life, or any preparation for force.[140] Thomas Hardy, a shoemaker, was first brought to trial. The trial began October 28, 1794, just sixty years before Mr. Curtis's grand-jury found a bill against me. Sir John Scott, the attorney-general, in opening the Prosecution, made a _speech nine hours' long_, attempting to construct treason out of belonging to a society. All who belonged to it were to be considered guilty of "compassing the death of our Lord the King." Chief Justice Eyre, in addressing the grand-jury, referred to the act of Parliament as _proof of a conspiracy_.[141] Mr. Erskine defended Hardy in a speech which "will live forever." Seldom had English Liberty been in such peril; never did English lawyers more manfully defend it. The jury, a London jury, returned "NOT GUILTY."[142] Gentlemen, the report of the trial occupies more than twelve hundred pages in this volume,[143] and it shook the nation. The British juries for a long time had slept on their post, and allowed the enemy to enter the camp and murder its inmates. But the trial of Hardy woke up those heedless sentinels, and Liberty was safe--in England, I mean.

[Footnote 140: 6 Campbell, 366.]

[Footnote 141: 34 George III. c. 54.]

[Footnote 142: 24 St. Tr. 199; Annual Register, 1794, p. 274; 31 Parl. Hist. 1062, _et al._]

[Footnote 143: 24 St. Tr.]

(2.) Still the infatuated government went on, not conscious of the spirit of Anglo-Saxon liberty it had at last roused from long, heavy and deathlike sleep, and eleven days after brought Mr. John Horne Tooke to trial. You remember, Gentlemen, that on the first anniversary of the Declaration of Independence, he was tried for publishing a notice of a meeting which raised L100 for the widows and orphan children of our citizens who fell at Lexington on the 19th of April, 1775, and for that offence was punished with fine and imprisonment.[144] After the acquittal of Hardy, the government brought Mr. Tooke to trial, relying on the same evidence to convict him which had so signally failed a fortnight before. The overt act relied on to convict him of "levying war" and "compassing the death of our Lord the King," was membership of a Reform society! Mr. Erskine defended him: "I _will_ assert the freedom of an Englishman; I will maintain the dignity of man, I will vindicate and glory in the principles which raised this country to her preeminence among the nations of the earth; and as she shone the bright star of the morning to shed the light of liberty upon nations which now enjoy it, so may she continue in her radiant sphere to revive the ancient privileges of the world which have been lost, and still to bring them forward to tongues and people who have never known them yet, in the mysterious progression of things."[145]

[Footnote 144: See above, p. 35.]

[Footnote 145: 25 St. Tr. 1.]

Gentlemen, Horne Tooke was acquitted--the government routed and overwhelmed with disgrace, gave up the other prosecutions, and the treason trials ended. Even George III. had wit enough left to see the blunder which his ministers--the Slave Power of England in 1794--had committed, and stammered forth, "You have got us into the wrong box my Lord [Loughborough]; you have got us into the wrong box. Constructive treason won't do my Lord; constructive treason won't do." By and by, Gentlemen, other men, wiser than poor feeble-minded George III., will find out that "constructive _misdemeanors_ won't do."

Of these trials, Mr. Campbell, himself a Judge, declares, "This [the conduct of the government] was more exceptionable in principle than any thing done during the reign of Charles II.; for then the fabricators of the Popish Plot did not think of corroborating the testimony of Oates and Bedloe by a public statute; and then, if the facts alleged had been true, they would have amounted to a plain case of actual treason; whereas here, admitting the truth of all the facts alleged, there was no pretence for saying that any treason contemplated by the legislature had been committed. If this scheme had succeeded, not only would there have been a sacrifice of life contrary to law, but all political 'agitation' must have been extinguished in England, as there would have been a precedent for holding that the effort to carry a measure by influencing public opinion through the means openly resorted to in our days, is a 'compassing the death of the sovereign.' The only chance of escaping such servitude would have been civil war. It is frightful to think of the perils to which the nation was exposed.... But Erskine and the crisis were framed for each other.... His contemporaries, who without him might have seen the extinction of freedom among us, saw it, by his peculiar genius, placed on an imperishable basis."[146] But Erskine without a Jury, Gentlemen, what could he have done? He could only wail, O Jerusalem, Jerusalem--when she would not!

[Footnote 146: 5 Campbell, 367.]

* * * * *

Now, Gentlemen, let us come over to this side of the water. I shall mention some cases in which the Jury have manfully done their duty, some others in which they have allowed themselves to be browbeaten and bullied by a judge, and so have done the greatest wrong.

1. First look at the famous case of John Peter Zenger.[147] Here are the facts. In 1733, Mr. Zenger established a newspaper in New York--there was only one there before--called the "New York Weekly Journal," "containing the freshest Advices foreign and domestic." In some numbers of this he complained, modestly enough, of various grievances in the administration of the Province, then ruled by Governor Cosby. He said, "as matters now stand their [the People's] liberties and properties are precarious, and that Slavery is likely to be entailed on them and their posterity, if some past things be not amended." He published the remarks of some one who said he "should be glad to hear that the Assembly would exert themselves, as became them, by showing that they have the interest of their country more at heart than the gratification of any private view of any of their members, or being at all affected by the smiles or frowns of a Governor, both which ought equally to be despised when the interest of the country is at stake." "We see men's deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature, by which, it seems to me, trials by juries are taken away when a Governor pleases." "Who, then, in that province can call any thing his own, or enjoy any liberty longer than those in the administration will condescend to let him do it?"

[Footnote 147: 3 Doc. Hist. N.Y. p. 340, 341.]

In October, 1734, Chief Justice de Lancey gave a charge to the Grand-Jury, urging them to indict Mr. Zenger for a libel. He says, "It is a very high aggravation of a libel that it tends to scandalize the government by _reflecting on those who are intrusted with the administration of public affairs_, which ... has a direct tendency to breed in the public a dislike of their Governors." "If he who hath either read a libel himself, or hath heard it read by another, _do afterwards_ maliciously _read or report any part of it in the presence of others_, or _lend or show it to another, he is guilty of an unlawful publication of it._"

But the Judge had not packed the Grand-Jury with sufficient care, and so no bill was found. Thereupon the Governor's Council sent a message to the General Assembly of New York, complaining of Mr. Zenger's Journal as tending "to alienate the affections of the people of this province from his majesty's government," and asking them to inquire into the said papers and the authors thereof; the Council required that the obnoxious numbers might "be _burned by the hands of the common hangman or whipper, near the pillory_." The Assembly let them lie on the table. The Court of Quarter-sessions was applied to to burn the papers; but as that body refused, the sheriff "delivered them unto the hands of _his own negro_, and ordered him to put them into the fire, which he did."

Mr. Zenger was imprisoned by a warrant from the Governor, a _lettre de cachet_, and "for several days denied the use of pen, ink, and paper, and the liberty of speech with any person." An _ex officio_ information was brought against him, charging him with "malicious and seditious libel." His counsel, Messrs. Alexander and Smith, took exceptions to the proceedings. The Chief Justice would neither hear nor allow the exceptions, "for" said he, "you thought to have gained a great deal of applause and popularity by opposing this court ... but you have brought it to that point, that either we must go from the bench or you from the bar, therefore we exclude you." So "for contempt of court" their names were struck from the list of attorneys. The case came on for trial. The clerk of the Court sought to pack his jury, and instead of producing the "Freeholders' book" to select the Jury from, presented a list of forty-eight persons which he said he had taken from that book. This Honorable Court knows how easy it is to violate the law in summoning jurors; none knew it better a hundred and twenty years ago. Of the 48 some were not freeholders at all; others held commissions and offices at the Governor's pleasure; others were of the late displaced magistrates who had a grudge against Mr. Zenger for exposing their official conduct; besides, there were the governor's baker, tailor, shoemaker, candle-maker, and joiner. But it does not appear that this Judge had any Brother-in-law on the list; corruption had not yet reached that height. But that wicked list was set aside after much ado, and a Jury summoned in the legal manner. It may astonish the Court but it was really done--and a Jury summoned according to law. The trial went on. Andrew Hamilton of Philadelphia defended Mr. Zenger with law, wit, learning, and eloquence. He admitted the fact of printing and publishing the documents, and rested the defence on the truth of their assertions. The Attorney-General, Mr. Bradley, said, "supposing they were true, the law says that they are not the less libellous for that: nay, indeed, the law says, _their being true is an aggravation of the crime_." He "did not know what could be said in defence of a man that had so notoriously scandalized the governor and principal magistrates ... by _charging them with depriving the people of their rights and liberties, and taking away trials by juries, and in short putting an end to the law itself_. If this was not a libel, he did not know what was one. Such persons as did take these liberties ... ought to suffer for stirring up sedition and discontent among the people."

The Chief Justice declared, "It is far from being a justification of a libel that the contents thereof are true ... since the _greater appearance there is of truth, so much the more provoking is it_!" "The jury may find that Mr. Zenger printed and published these papers, and _leave it to the court to judge whether they are libellous_!"

That would be to put the dove's neck in the mouth of the fox, and allow him to decide whether he would bite it off. Mr. Hamilton replied:--

"This of leaving it to the judgment of the court whether the
words are libellous or not, in effect renders Juries useless
(to say no worse), in many cases." "If the faults, mistakes,
nay even the vices of such a person be private and personal,
and don't affect the peace of the public, or the liberty or
property of our neighbor, it is unmanly and unmannerly to
expose them, either by word or writing. But, when a ruler of
the people brings his personal failings, but much more his
vices, into his administration, and the people find
themselves affected by them, either in their liberties or
properties, that will alter the case mightily; and all the
high things that are said in favor of rulers and of
deputies, and upon the side of power, will not be able to
stop people's mouths when they feel themselves oppressed, I
mean in a free government. It is true _in times past it was
a crime to speak truth_; and in that terrible court of
Star-Chamber many worthy and brave men suffered for so
doing; and yet even in that court, and in those bad times, a
great and good man durst say, what I hope will not be taken
amiss of me to say in this place, namely, 'The practice of
informations for libels is a sword in the hands of a wicked
king, and an arrant coward, to cut down and destroy the
innocent; the one cannot because of his high station, and
the other dares not, because of his want of courage, redress
himself in another manner.'

"It is a right which all persons claim and are entitled to,
to complain when they are hurt; they have a right publicly
to remonstrate against the abuses of power, in the strongest
terms; to put their neighbors upon their guard against the
craft or open violence of men in authority; and to assert
with courage the sense they have of the blessings of
liberty, the value they put upon it, and their resolution at
all hazards to preserve it as one of the greatest blessings
Heaven can bestow." "It is a duty which all good men owe to
their country, to guard against the unhappy influence of ill
men when intrusted with power, and especially against their
creatures and dependants, who as they are generally more
necessitous, are surely more covetous and cruel."

According to the Judge the Jury had only one question before them, "Did Zenger publish the words charged in the information?" That fact was clear; nay, he did not himself deny it. He confessed it in court. But the jury fell back on their rights and duties to decide the Question of Fact, of Law, and of the Application of the Law to the Fact, and returned "NOT GUILTY," "upon which there were three huzzas in the Hall." Had this Honorable Court been then in existence I suppose it would have talked of indicting the jurors for "perjury," and would doubtless have had its labor for its pains. For the Common Council of New York presented Mr. Hamilton with a costly gold box and the freedom of the city. Gentlemen, this took place one hundred and twenty years ago. Forty years before the Revolution, Andrew Hamilton helped lay the "brilliant foundation of liberty," whereon another Hamilton was also to raise up noble walls of freedom. Gentlemen of the Jury, by Wisdom is a house builded, but the foolish plucketh it down with her own hands. Will you allow that to be done? What if the jury in 1735 had been faithless? The axe which smote down Zenger in New York, bloody and cruel, would have shorn off the heads of Otis and Quincy, and Adams and Hancock at Boston; the family of Scroggs alone would be held in honor in New England.[148]

[Footnote 148: 17 St. Tr. 675.]

Gentlemen, it once happened in New York that Governor Nicholson was offended with one of the clergymen of the Province. He met him on the road one day, and "as it was usual with him (under the protection of his commission) used the poor minister with the worst of language, threatened to cut off his ears, slit his nose, and at last to shoot him through the head." The minister, "being a reverend man, continued all this time uncovered in the heat of the sun, until he found an opportunity to fly for it, and coming to a neighbor's house fell ill of a fever and wrote for a doctor," relating the facts and concluding that the governor was crazy, for no man in his right mind would behave so ill. The doctor showed the letter; the governor brought a prosecution against the minister for publishing a "scandalous, wicked, and seditious libel." No doubt he could have found a judge even then who would twist the law so as to make the letter "sedition" and "libel;" nay, perhaps he could construct a jury so as to secure a conviction, but before it reached trial the prosecution was stopped by the order of Queen Anne.

2. In 1816, in Massachusetts, there occurred the celebrated case of Commonwealth _vs._ Bowen, to which I shall again refer in a subsequent part of this defence. These are the facts. In September, 1815, Jonathan Jewett was convicted of murder in Hampshire county, Massachusetts, and sentenced to be hanged on the 9th of the following November. He was confined at Northampton, and hung himself in his cell on the night preceding the morning appointed for his public execution. George Bowen was confined in the same jail, in an apartment adjacent to Jewett's, and in such a situation that they could freely converse together. Bowen repeatedly and frequently advised and urged Jewett to destroy himself and thus disappoint the sheriff and the expectant people. He did so, and the coroner's jury returned that he committed suicide. But nevertheless, Bowen was indicted for the wilful murder of Jewett. It was charged that he "feloniously, wilfully, and of his malice aforethought, did counsel, hire, persuade, and procure the said Jewett the said felony and murder of himself to do and commit;" or that he himself murdered the said Jewett by hanging him.

At the trial Attorney-General Perez Morton contended that Bowen "was guilty of _murder as principal_;" and he cited and relied chiefly on the following authority from the Reports of our old friend Kelyng.

"Memorandum, that my brother _Twisden_ showed me a report
which he had of a charge given by Justice _Jones_ to the
grand-jury, at the King's Bench barre, _Michaelmas Term_, 9
_Car._ 1, in which he said, that poisoning another was
murder at common law. And the statute of 1 _Ed._ 6, was but
declaratory of the common law, and an affirmation of it. If
one drinks poison by the provocation of another, and dieth
of it, this is murder in the person that persuaded it. And
he took this difference. If A. give poison to J.S. to give
to J.D., and J.S. knowing it to be poison, give it to J.D.
who taketh it in the absence of J.S., and dieth of it; in
this case J.S., who gave it to J.D., is principal; and A.
who gave the poison to J.S., and was absent when it was
taken, is but accessory before the fact. But if A. buyeth
poison for J.S., and J.S., in the absence of A., taketh it
and dieth of it, in this case A., though he be absent, yet
he is principal. So it is if A. giveth poison to B. to give
unto C.; and B., not knowing it to be poison, but believing
it to be a good medicine, giveth it to C., who dieth of it;
in this case A., who is absent, is principal, or else a man
should be murdered, and there should be no principal. For
B., who knoweth nothing of the poison, is in no fault,
though he gave it to C. So if A. puts a sword into the hands
of a madman, and bids him kill B. with it, and then A. goeth
away, and the madman kills B. with the sword, as A.
commanded him, this is murder in A., though absent, and he
is principal; for it is no crime in the madman, who did the
fact by reason of his madness."[149]

[Footnote 149: See the case in Kelyng's Reports (London, 1708), p. 52. The opinion of Justice _Jones_ was only the charge of an inferior judge given to the grand-jury in 1634.]

Mr. Morton also laid down this as law, "_the adviser of one who commits a felony of himself is a murderer_." He might have added, "the adviser of one who breaks into his own house is a burglar."

Chief Justice Parker--who once declared that the jury had nothing to do with the harshness of a law--charged the jury that the important question for them was, Did Bowen's advice induce Jewett to kill himself? if so, they were to find him guilty of wilful murder! "The community has an interest _in the public execution_ of criminals [the crowd having an _interest in the spectacle_] and to take such an one out of the reach of the law [by advising him to self-destruction] is no trivial offence." "_You are not to consider the atrocity of this offence in the least degree diminished by the consideration that justice was thirsting for its sacrifice_; and that but a small portion of Jewett's earthly existence could, in any event, remain to him."[150]

[Footnote 150: 13 Mass. Rep. 356.]

There was no doubt that Bowen advised Jewett to commit suicide; but the jury, in defiance of the judge's charge and Mr. Kelyng's law, nevertheless returned "NOT GUILTY."

Here, Gentlemen, is a remarkable instance of a judge, in private a benevolent man, perverting his official power, and constructing the crime of murder out of advice given to a man to anticipate a public execution by privately hanging himself! The law relied on was the Memorandum of the charge to a grand-jury made by a judge who notoriously broke the fundamental laws of England, by declaring that the king had a constitutional right to imprison, at will and as long as he liked, any of his subjects without trial, even members of Parliament for words uttered in public debate; and also the right to levy ship-money contrary to the Acts of Parliament. This charge was made in the tyrannical reign of Charles I. in 1634, by a tyrannical judge. There was no report, only _a memorandum_ of it, and that not printed till seventy-four years after! It had not the force of law even then: it was only the memorandum of the "opinion" of a single judge, not even the "opinion" of the full court. The memorandum is contained in Kelyng's Book, which Lord Campbell calls "a folio volume of decisions in criminal cases, which are of no value whatever, except to make us laugh at some of the silly egotisms with which they abound."[151] On such authority in 1816 would even a Massachusetts court, with a judge who was a kindly man in private, dash away the life of a fellow-creature,--with such mockery of law! But, Gentlemen, the jury at that time did not slumber; they set the matter right, and did justice spite of Judge Kelyng and his "law." They made nothing of the judge's charge!

[Footnote 151: 2 Campbell, Judges, 406.]

* * * * *

Gentlemen of the Jury, I will now mention some cases of gross injustice perpetrated by the Federal Courts of the United States.

The tenth article of amendments to the Constitution provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People." The Constitution itself confers no Common Law Jurisdiction on the Government. Neither the People nor their Representatives had ever decreed the Common Law of England to be a part of the law of the United States. Yet, spite of the absence of positive enactment and the express words of the above amendment to the Constitution, the Supreme Court at once assumed this jurisdiction. In 1799, Chief Justice Ellsworth said, "the Common Law of this country remains the same as it was before the Revolution;"[152] and proceeded on that supposition to exercise the powers of English Judges of Common Law, undertaking to punish men for offences which no Act of Congress forbid. You see at once what monstrous tyranny would follow from that usurpation. Had the English Common Law power of punishing for "seditious libel," for example, been allowed to the Federal court, Gentlemen, you know too well what would follow. But this monstrous assumption was presently brought to an ignominious end; and strange as it may appear, by one of the judges of the court itself. Samuel Chase of Maryland, one of the signers of the Declaration of Independence, had been an Anti-Federalist and a strong State-Right's man, as such insisting on a strict construction of the Constitution. Singular as it may appear he was made a Judge in 1796, and what is yet more surprising, in 1798, declared "the United States as a Federal government, had no Common Law," and thus ended this claim.[153] But tyranny did not end; nay, he himself, a man of uncommon powers and legal attainments, became a most atrocious example of Judicial despotism.

[Footnote 152: Wharton, State Trials, 653. See too Virginia Resolutions (Richmond, 1850), Preface, xiii. _et seq._; Virginia Resolutions by Madison, and his Report thereon; Kentucky Resolutions by Jefferson, in 4 Eliot's Debates (1836).]

[Footnote 153: Wharton, 197; 3 Dallas, 384; see 5 Hildreth, 230.]

1. In 1791 a direct tax was levied by Act of Congress on all lands and houses; excise officers were to ascertain their value. The "Alien and Sedition Laws" were also passed the same year. The execution of the law relative to the direct tax was resisted in Northampton county, Penn., and some prisoners rescued from an officer of the United States. The President, Mr. Adams, issued his proclamation. In 1799 John Fries was arrested on the charge of treason. The overt act alleged was resistance to that one special law of Congress. Judge Iredell charged the Grand-Jury, "You have heard the government as grossly abused as if it had been guilty of the vilest tyranny." Had he read the private correspondence of the Cabinet, he might have found other specimens of "abuse." He defended both the Alien and Sedition Laws.--They were "constitutional" and "proper."[154]

[Footnote 154: See a defence of them in 2 Gibbs's Administration, 74, 78; also 162.]

Mr. Fries was indicted for treason. The Judiciary Act of Congress of 1789 provides that "in cases punishable with death the trial shall be had in the county where the offence was committed; or when that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." The offence was committed in Northampton county, and he was indicted and brought to trial in Philadelphia county, nor could the court be induced to comply with the statute!

The government laid down the law and constructed treason with the usual ingenuity of officials working by the job. Judge Kelyng's loose opinion that an attack on a brothel was high treason, was cited by Mr. Rawle, the District Attorney, as good law.[155] What "in England is called constructive levying of war, in this country must be called direct levying of war." Judge Peters charged that though force was necessary to constitute the crime of treason, yet "the quantum of force is immaterial," of course it may be wielding a wheat straw, or a word, I suppose. "The doctrine of constructive treason has produced much real mischief in another country" [England]. "The _greater part of the objections to it are irrelevant here_."

[Footnote 155: Wharton, 539; Kelyng, R. 70, 75.]

Fries was found guilty. His counsel moved for a new trial, on the ground that before the trial one of the jurors had declared, "Fries ought to be hung;" "I myself shall be in danger unless we hang them all;" that the jurors were irregularly drawn, and the trial was not held in the county where the offence was committed. Judge Iredell ruled that it was "_a high contempt_ at this time _to call for a renewal of an argument whereon a solemn, decisive opinion was delivered_." Judge Peters declared the juror had "said no more than all friends to the laws and the government were warranted in thinking and saying." Yet a new trial was granted.

The new trial was held before Judge Chase, who had, as Mr. Wharton says, a "singular instinct for tumults which scents it at a distance ... and irresistibly impels a participation in it," "moving perpetually with a mob at his heels." Yet "apart from his criminal jurisdiction he was reckoned a wise and impartial judge, a master of the Common Law, and a thorough and indefatigable administrator of public functions." "It was this despotic ardor of temperament ... which made him, when a young man, employ with resolute audacity the engine of popular revolt, and which led him when older, and when in possession of that power against which he had so steadily warred, to wield with the same vigor the sword of constituted authority."[156] Gentlemen, he was like many that this Honorable Court perhaps have known, who were privateering Democrats in 1812, and Kidnapping Whigs in 1850. To him we are indebted for the invaluable decision that the United States courts have no Common Law jurisdiction.

[Footnote 156: 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419.]

At this new trial he treated the defendants' counsel in such a manner that they abandoned the case, and left the Prisoner without defence. The District Attorney, taking his law from Kelyng and similar servants of British despots, laid it down that treason "may consist in _assembling together in numbers_, and by actual force, or by terror, _opposing any particular law_;" "_Force need not be used_ to manifest this spirit of rebellion." "Even _if the matter made a grievance of was illegal, the demolition of it_ in this way _was_, nevertheless, _treason_," "a rising with intent by force to prevent the execution of a law ... preventing the marshal executing his warrants, and preventing the other officers ... amounted to levying war." "In short an opposition to the acts of Congress in whole or in part [that is to _any one law_] ... either by collecting numbers, or by a display of force ... which should operate ... either throughout the United States, or in _any part thereof to procure a repeal or a suspension_ of the law ... this offence be considered to be _strictly_ treason."

Judge Chase laid it down as law not to be questioned in his court, "that any ... rising of any body of the people ... to attain by force ... any object of a great public nature ... is a levying of war:" "any such ... rising to resist ... the execution of any statutes of United States ... or for any other object of a general nature or national concern, under any pretence as that the statute was unjust ... or unconstitutional is a levying war;" "_any force ... will constitute the crime_ of levying war."

If that be law, then an old negro woman who, with a dishcloth, frightens officer Butman away from kidnapping her granddaughter in Southac street, does thereby levy war against the United States and commits the crime of treason.

The jury, overborne by the assumptions of the judge, or ignorant of their duties and their rights, allowed this tyrannical court to have its way, surrendered the necks of the people, and brought in a verdict of guilty. Judge Chase made an insolent address to the prisoner and sentenced him to death. But Mr. Adams, with a remarkable degree of justice, gave him a full pardon, and drew down upon himself thereby the wrath of his cabinet.[157]

[Footnote 157: Wheaton, 458; 9 Adams's Works, 57; 2 Gibbs, 360; 5 Hildreth, 366; Chase's Trial, 18.]

2. In 1788 Mathew Lyon, a native of Ireland, a Revolutionary soldier, a member of congress, and editor of a newspaper in Vermont, was brought to trial under the Sedition Law, for a false, malicious, and seditious libel. He had published in his newspaper a somewhat severe attack on the Federalists then in power. The article, alleged to be "seditious," was a letter written and mailed at the seat of government seven days before, and published nine days after, the passage of the Sedition Law itself. It was as much a political trial, Gentlemen, as this--purely political. Judge Patterson--United States Circuit Judge of Vermont--charged that the jury had nothing whatever to do with the constitutionality of the Sedition Law. "Congress has said that the author and publisher of seditious libels is to be punished." "The only question you are to determine is ... Did Mr. Lyon publish the writing?... Did he do so seditiously, with the intent of making odious or contemptible the President and government, and bringing them both into disrepute?"

Mr. Lyon was found guilty, and punished by a fine of $1,000 and imprisonment for four months. The "Seditious Libel" would now be thought a quite moderate Editorial or "Letter from our Correspondent." His imprisonment was enforced with such rigor that his constituents threatened to tear down the jail, which he prevented.[158]

[Footnote 158: Wharton, 333; 4 Jefferson's Works (1853), 262.]

3. In 1799 Thomas Cooper, a native of England, residing at Northumberland, Pennsylvania, published a handbill reflecting severely on the conduct of President Adams. He was prosecuted by an Information _ex officio_, in the Circuit Court for Pennsylvania, and brought to trial before Judge Chase, already referred to, charged with a "false, scandalous, and malicious attack" on the President. Mr. Chase charged the jury, "A Republican government can only be destroyed in two ways: the introduction of luxury, or the licentiousness of the press. This latter is the more slow, but most sure and certain means of bringing about the destruction of the government." He made a fierce and violent harangue, arguing the case against the defendant with the spirit which has since become so notorious in the United States courts in that State. The pliant jury found Mr. Cooper guilty, and he was fined $400 and sent to jail for six months. He subsequently became a judge in Pennsylvania, as conspicuous for judicial tyranny as Mr. Chase himself, and was removed by Address of the Legislature from his seat, but afterwards went to South Carolina where he became Professor at her college, and a famous nullifier in 1830.[159]

[Footnote 159: Wharton, 659.]

4. In 1799, or 1800, Mr. Callender, a native of England, then residing at Richmond, in Virginia--a base and mean fellow, as his whole history proved, depraved in morals and malignant in temper--published a pamphlet called "The Prospect before us," full of the common abuse of Mr. Adams and his administration. He was indicted for a false, malicious, and seditious libel, and brought to trial before Judge Chase who pressed the Sedition Law with inquisitorial energy and executed it with intolerant rigor.[160] As he started for Richmond to hold the trial, he declared "he would teach the lawyers in Virginia the difference between the liberty and the licentiousness of the press." He told the marshal "not to put any of those creatures called Democrats on the jury,"--it does not appear that he had his own Brother-in-Law on it however;--"he likened himself to a schoolmaster who was to turn the unruly boys of the Virginia courts over his knee and give them a little wholesome chastisement."

[Footnote 160: Wharton, 45, 688; Chase's Trial, 33; 4 Jefferson, 445, 447.]

Some of the ablest lawyers in Virginia were engaged for the defence. But they could not secure any decent regard to the common forms of law, or to the claims of justice. He would not grant the delay always usual in such cases, and indispensable to the defence. He refused to allow the defendants' counsel to examine their most important witness, and allowed them to put none but written questions approved of by him! The defendant was not allowed to prove the truth of any statements, alleged to be libellous, by establishing the truth of one part through one witness and of another through a different one. He would not allow him to argue to the jury that the law was unconstitutional. "We all know that juries have the right to decide the law as well as the fact, and the Constitution is the Supreme law of the land." "Then," said Mr. Wirt, "since the jury have a right to consider the law, and since the Constitution is law, it is certainly syllogistic that the jury have a right to consider the Constitution;" and the judge exclaimed, "a _non sequitur_, Sir!" "Sit down, Sir!" Mr. Wirt sat down. The judge declared "a right is given to the jury to determine what the law is in the case before them, and not to decide whether a statute is a law or not, or whether it is void, under an opinion that it is unconstitutional." "It appears to me the right now claimed has a direct tendency to dissolve the Union." "No citizen of knowledge and information ... will believe, without very strong and indubitable proof, that Congress will, intentionally, make any law in violation of the Federal Constitution." "If such a case should happen, the mode of redress is pointed out in the Constitution." It was obvious that Congress had made laws in violation of the Constitution, and he insisted that the jury should enforce those laws against their own conscience. After all his violent injustice he of course declared "the decisions of courts of justice will not be influenced by political and _local_ principles and prejudices." The packed jury found the prisoner guilty. He was fined $200 and sent to jail for nine months.

But Virginia was too high-spirited to bear this. Nay, Gentlemen of the Jury, the whole Nation then was too fond of justice and liberty to allow such wickedness to proceed in the name of law. "Virginia was in a flame;" the lawyers "throughout the country were stung to the quick." They had not been so long under the slave-power then as now. At this day, Gentlemen, such conduct, such insolence, yet more oppressive, rouses no general indignation in the lawyers. But then the Alien and Sedition Laws ruined the Administration, and sent Mr. Adams--who yet never favored them--from his seat; his successor, Mr. Jefferson, says, "_I discharged every person under punishment_, or prosecution, _under the Sedition Law, because I considered and now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image_."[161] Judge Chase was impeached by the House of Representatives, tried by the Senate, and only escaped condemnation by the prejudice of the political partisans. As it was, a majority were in favor of his condemnation. But the Constitution, properly, requires two thirds. Judge Chase escaped by this provision. But his influence was gone.

[Footnote 161: 4 Jefferson, Correspondence in Wharton, 721.]

The Alien and Sedition Laws, which sought to gag the People, and make a Speech a "misdemeanor," soon went to their own place; and on the 4th of July, 1840, Congress passed a law to pay Mr. Lyon and others the full amount of the fine and costs levied upon them, with interest to the date of payment: a Committee of the House had made a report on Lyon's case, stating that "the law was unconstitutional, null, and void, passed under a mistaken exercise of undelegated power, and that the mistake ought to be remedied by returning the fine so obtained, with interest thereon."[162] Just now, Gentlemen, Judge Chase and the principles of the Sedition Law appear to be in high favor with the Federal Courts: but one day the fugitive slave bill will follow the Alien and Sedition Bill, and Congress will refund all the money it has wrenched unjustly from victims of the Court. There is a To-morrow after to-day, and a Higher Law which crushes all fugitive slave bills into their kindred dust.

[Footnote 162: 2 Sess. 26th, Cong. Doc. 86, Ho. Rep.; Wharton, 344, 679. See also Virginia Resolutions (1850), and the remarks in the Debates. Then Virginia was faithful to State Rights, and did a service to the cause of Liberty which no subsequent misconduct should make us forget.]

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Gentlemen, allow me to vary this narrative of British and American despotism by an example from a different nation. I will refresh you with a case more nearly resembling that before you; it is an instance of German tyranny. In 1853, Dr. Gervinus, Professor of History in the University of Heidelberg in Germany, published this little volume of about 200 pages,[163] "An Introduction to the History of the 19th Century." Mr. Gervinus is one of the most enlightened men in the world, a man of great genius for the philosophical investigation of human history, and enriched with such culture and learning as is not common even in that home of learned men. His book, designed only for scholars, and hardly intelligible to the majority of readers even in America, sets forth this great fact,--The democratic tendency of mankind shown in all history.

[Footnote 163: 2 Einleitung in die Geschichte des neunzehnten Jahrhunderts; Leipzig, 1853. 8vo. pp. 181.]

Gervinus was seized and brought to trial on the 24th of February, 1853, at Mannheim, charged with publishing a work against constitutional monarchy, intending thereby to depose the lawful head of the State, the Grand Duke Charles Leopold, and with changing and endangering the constitution, "disturbing the public tranquillity and order, and incurring the guilt of High Treason." In short he was charged with "obstructing an officer" and attempting to "dissolve the Union," with "levying war." For his trial the judge purposely selected a small room, though four times larger than what now circumscribes the dignity of this Honorable Court; he did not wish the people to hear Gervinus's defence. But I will read you some extracts from the preface to the English translation of his book:--