I. According to the theory of the Government. The judge is to settle the law for the jury. This involves two things:

1. He is to declare the law denouncing punishment on the alleged crime.

2. To declare what const.i.tutes the crime. Then the jury are only to determine whether the prisoner did the deed which the judge says const.i.tutes the crime. He, exclusively, is to decide what is the law, and what deed const.i.tutes the crime; they only to decide if the prisoner did the deed. For example, to take a case which has not happened yet, to my knowledge: John Doe is accused of having eaten a Medford cracker; and thereupon, by direction of the Government, has been indicted by a grand jury for the capital offence of treason, and is brought before a traverse jury for trial. The judge tells the jury, 1. That eating a Medford cracker const.i.tutes the crime of treason. 2. That there is a law denouncing death on that crime. Then the jury are to hearken to the evidence, and if it is proved to their satisfaction that John Doe ate the Medford cracker, they are to return a verdict of guilty. They are only to judge of the matter of fact, and take the law on the judge's authority.

II. According to the theory of the People, in order to render their verdict, the jury are to determine three things:

1. Did the man do the deed alleged?

2. If so, Is there a legal and const.i.tutional statute denouncing punishment upon the crime? Here the question is twofold: (_a_) as to the deed which const.i.tutes the crime, and (_b_) as to the statute which denounces the crime.

3. If all this is settled affirmatively, then, Shall this man suffer the punishment thus legally and const.i.tutionally denounced?

For example: John Doe is accused of having eaten a Medford cracker, is indicted for treason, and brought to trial; the judge charges as above.

Then the jury are to determine:

1. Did John Doe eat the Medford cracker in the manner alleged?

2. If so: (_a_) Does that deed const.i.tute the crime of treason? and (_b_) Is there a legal and const.i.tutional statute denouncing the punishment of death on that crime?

3. If so likewise, Shall John Doe suffer the punishment of death?

The first question, as to the fact, they are to settle by the evidence presented in open court, according to the usual forms, and before the face of the prisoner; the testimony of each witness forms one element of that evidence. The jury alone are to determine whether the testimony of the witnesses proves the fact.

The second question, (_a_) as to the deed which const.i.tutes the crime, and (_b_) as to the law which denounces the crime, they are to settle by evidence; the testimony of the Judge, of the States' Attorney, of the Prisoner's counsel, each forms an element of that evidence. The jury alone are to determine whether that testimony proves that the deed const.i.tutes the crime, and that there is a law denouncing death against it; and the jury are to remember that the judge and the attorney who are the creatures of the Government, and often paid to serve its pa.s.sions, may be, and often have been, quite as partial, quite as unjust, as the prisoner's counsel.

The third question, as to punishing the prisoner, after the other questions are decided against him, is to be settled solely by the mind and conscience of the jury. If they know that John Doe did eat the Medford cracker; that the deed legally const.i.tutes the crime of treason, and that there is a legal and const.i.tutional statute denouncing death on that crime, they are still to determine, on their oath as jurors, on their manhood as men, Whether John Doe shall suffer the punishment of death. They are jurors to do justice, not injustice; what they think is justice, not what they think injustice.

The Government theory, though often laid down in the charge, is seldom if ever practically carried out by a judge in its full extent. For he does not declare on his own authority what is the law and what const.i.tutes the crime, but gives the statutes, precedents, decisions and the like; clearly implying by this very course that the jury are not to take his authority barely, but his reasons if reasonable.

In the majority of cases, the statute and the ruling of the court come as near to real justice as the opinion of the jury does; then if they are satisfied that the prisoner did the deed alleged, they return a verdict of guilty with a clear conscience, and subject the man to what they deem a just punishment for an unjust act. Their conduct then seems to confirm the Government theory of the jurors' function. Lawyers and others sometimes reason exclusively from such cases, and conclude such is the true and actual theory thereof. But when a case occurs, wherein the ruling of the judge appears wrong to the jury; when he declares legal and const.i.tutional what they think is not so; when he declares that a trifling offence const.i.tutes a great crime; when the statute is manifestly unjust, forbidding what is not wrong, or when the punishment denounced for a real wrong is excessive, or any punishment is provided for a deed not wrong, though there is no doubt of the facts, the jury will not convict. Sometimes they will acquit the prisoner; sometimes fail to agree. The history of criminal trials in England and America proves this. In such cases the jury are not false to their function and jurors' oath, but faithful to both, for the jurors are the "country"--the justice and humanity of men.

Suppose some one should invent a machine to be used in criminal trials for determining the testimony given in court. Let me call it a Martyrion. This instrument receives the evidence and determines and reports the fact that the prisoner did, or did not, do the deed alleged.

According to the government theory, the Martyrion would perfectly perform all the functions of the jury in a criminal case; but would any community subst.i.tute the machine for the jury of "twelve good men and true?" If the jury is to be merely the judge's machine, it had better be of iron and gutta-percha than of human beings.

In Philadelphia, some years ago, a man went deliberately and shot a person who had seduced his sister under circ.u.mstances of great atrocity.

He was indicted for wilful murder. There was no doubt as to the fact, none as to the law, none as to the deed which const.i.tuted that crime.

The jury returned, "Not guilty"--and were justified in their verdict. In 1850, in New Jersey, a man seduced the wife of another, under circ.u.mstances even more atrocious. The husband, in open day, coolly and deliberately shot the seducer; was tried for wilful murder. Here, too, there was no doubt of the fact, of the law, or the deed which const.i.tuted the crime of murder; but the jury, perfectly in accordance with their official function, returned "Not guilty."

The case of William Penn in 1670, who was tried under the Conventicle Act, is well known. The conduct of many English juries who would not condemn a fellow-creature to death for stealing a few pounds of money, is also well known, and shows the value of this form of trial to protect a man from a wicked law. I think most men will declare the verdict of "Not guilty" in the case of J. P. Zenger, tried for high treason in New York in 1735, a righteous judgment, made in strict accordance with the official function of the jurors; but it was plainly contrary to the evidence as well as to the ruling of the court.

See Mr. Parker's Defence, p. 76, _et seq._ for further remarks on the Function of the Jury (Boston, 1855).

[15] So it appeared in September, 1851; but since then the whig party has vindicated its claim to the same bad eminence as the democratic party.

[16] The person referred to fled away from Boston, and in one of the British provinces found the protection for his unalienable rights, which could not be allowed him in New England.

[17] This refers to a speech of Mr. Webster, occasioned by the pa.s.sage of the fugitive slave law.

V.

THE STATE OF THE NATION, CONSIDERED IN A SERMON FOR THANKSGIVING DAY.--PREACHED AT THE MELODEON, NOVEMBER 28, 1850.

PROVERBS XIV. 34.

Righteousness exalteth a nation, but sin is a reproach to any people.

We come together to-day, by the Governor's proclamation, to give thanks to G.o.d for our welfare, not merely for our happiness as individuals or as families, but for our welfare as a people. How can we better improve this opportunity, than by looking a little into the condition of the people? And accordingly I invite your attention to a Sermon of the State of this Nation. I shall try to speak of the Condition of the nation itself, then of the Causes of that condition, and, in the third place, of the Dangers that threaten, or are alleged to threaten, the nation.

First, of our Condition. Look about you in Boston. Here are a hundred and forty thousand souls, living in peace and in comparative prosperity.

I think, without doing injustice to the other side of the water, there is no city in the old world, of this population, with so much intelligence, activity, morality, order, comfort, and general welfare, and, at the same time, with so little of the opposite of all these. I know the faults of Boston, and I think I would not disguise them; the poverty, unnatural poverty, which shivers in the cellar; the unnatural wealth which bloats in the parlor; the sin which is hid in the corners of the jail; and the more dangerous sin which sets up Christianity for a pretence; the sophistry which lightens in the newspapers, and thunders in the pulpit:--I know all these things, and do not pretend to disguise them; and still I think no city of the old world, of the same population, has so much which good men prize, and so little which good men deplore.

See the increase of material wealth; the buildings for trade and for homes; the shops and ships. This year Boston will add to her possessions some ten or twenty millions of dollars, honestly and earnestly got.

Observe the neatness of the streets, the industry of the inhabitants, their activity of mind, the orderliness of the people, the signs of comfort. Then consider the charities of Boston; those limited to our own border, and those which extend further, those beautiful charities which encompa.s.s the earth with their sweet influence. Look at the schools, a monument of which the city may well be proud, in spite of their defects.

But Boston, though we proudly call it the Athens of America, is not the pleasantest thing in New England to look at; it is the part of Ma.s.sachusetts which I like the least to look at, spite of its excellence. Look further, at the whole of Ma.s.sachusetts, and you see a fairer spectacle. There is less wealth at Provincetown, in proportion to the numbers, but there is less want; there is more comfort; property is more evenly and equally distributed there than here, and the welfare of a country never so much depends upon the amount of its wealth, as on the mode in which its wealth is distributed. In the State, there are about one hundred and fifty thousand families--some nine hundred and seventy-five thousand persons, living with a degree of comfort, which, I think, is not anywhere enjoyed by such a population in the old world.

They are mainly industrious, sober, intelligent, and moral. Every thing thrives; agriculture, manufactures, commerce. "The carpenter encourages the goldsmith; he that smites the anvil, him that smootheth with the hammer." Look at the farms, where intelligent labor wins bread and beauty both, out of the sterile soil and climate not over-indulgent.

Behold the shops all over the State; the small shops where the shoemaker holds his work in his lap, and draws his thread by his own strong muscles; and the large shops where machines, animate with human intelligence, hold, with iron grasp, their costlier work in their lap, and spin out the delicate staple of Sea Island cotton. Look at all this; it is a pleasant sight. Look at our hundreds of villages, by river, mountain, and sea; behold the comfortable homes, the people well fed, well clad, well instructed. Look at the school-houses, the colleges of the people; at the higher seminaries of learning; at the poor man's real college further back in the interior, where the mechanic's and farmer's son gets his education, often a poor one, still something to be proud of. Look at the churches, where, every Sunday, the best words of Hebrew and of Christian saints are read out of this Book, and all men are asked, once in the week, to remember they have a Father in heaven, a faith to swear by, and a heaven to live for, and a conscience to keep. I know the faults of these churches. I am not in the habit of excusing them; still I know their excellence, and I will not be the last man to acknowledge that. Look at the roads of earth and iron which join villages together, and make the State a whole. Follow the fisherman from his rocky harbor at Cape Ann; follow the mariner in his voyage round the world of waters; see the industry, the intelligence, and the comfort of the people. I think Ma.s.sachusetts is a State to be thankful for. There are faults in her inst.i.tutions and in her laws, that need change very much. In her form of society, in her schools, in her colleges, there is much which clamors loudly for alteration,--very much in her churches to be christianized. These changes are going quietly forward, and will in time be brought about.

I love to look on this State, its material prosperity, its increase in riches, its intelligence and industry, and the beautiful results that are seen all about us to-day. I love to look on the face of the people, in halls and churches, in markets and factories; to think of our great ideas; of the inst.i.tutions which have come of them; of our schools and colleges, and all the inst.i.tutions for making men wiser and better; to think of the n.o.ble men we have in the midst of us, in every walk of life, who eat an honest bread, who love mankind, and love G.o.d, who have consciences they mean to keep, and souls which they intend to save.

The great business of society is not merely to have farms, and ships, and shops,--the greater shops and the less,--but to have men; men that are conscious of their manhood, self-respectful, earnest men, that have a faith in the living G.o.d. I do not think we have many men of genius. We have very few that I call great men; I wish there were more; but I think we have an intelligent, an industrious, and n.o.ble people here in Ma.s.sachusetts, which we may be proud of.

Let us go a step further. New England is like Ma.s.sachusetts in the main, with local differences only. All the North is like New England in the main; this portion is better in one thing; that portion worse in another thing. Our ideas are their ideas; our inst.i.tutions are the same. Some of the northern States have inst.i.tutions better than we. They have added to our experience. In revising their const.i.tutions and laws, or in making new ones, they go beyond us, they introduce new improvements, and those new improvements will give those States the same advantage over us, which a new mill, with new and superior machinery, has over an old mill, with old and inferior machinery. By and by we shall see the result, and take counsel from it, I trust.

All over the North we find the same industry and thrift, and similar intelligence. Here attention is turned to agriculture, there to mining; but there is a similar progress and zeal for improvement. Attention is bestowed on schools and colleges, on academies and churches. There is the same abundance of material comfort. Population advances rapidly, prosperity in a greater ratio. Everywhere new swarms pour forth from the old hive, and settle in some convenient nook, far off in the West. So the frontier of civilization every year goes forward, further from the ocean. Fifty years ago it was on the Ohio; then on the Mississippi; then on the upper Missouri: presently its barrier will be the Rocky Mountains, and soon it will pa.s.s beyond that bar, and the tide of the Atlantic will sweep over to the Pacific--yea, it is already there! The universal Yankee freights his schooner at Bangor, at New Bedford, and at Boston, with bricks, timber, frame-houses, and other "notions," and by and by drops his anchor in the smooth Pacific, in the Bay of St.

Francis. We shall see there, ere long, the sentiments of New England, the ideas of New England, the inst.i.tutions of New England; the school-house, the meeting-house, the court-house, the town-house. There will be the same industry, thrift, intelligence, morality, and religion, and the idle ground that has. .h.i.therto borne nothing but gold, will bear upon its breast a republic of men more precious than the gold of Ophir, or the rubies of the East.

Here I wish I could stop. But this is not all. The North is not the whole nation; New England is not the only type of the people. There are other States differing widely from this. In the southern States you find a soil more fertile under skies more genial. Through what beautiful rivers the Alleghanies pour their tribute to the sea! What streams beautify the land in Georgia, Alabama, Louisiana, and Mississippi! There genial skies rain beauty on the soil. Nature is wanton of her gifts.

There rice, cotton, and sugar grow; there the olive, the orange, the fig, all find a home. The soil teems with luxuriance. But there is not the same wealth, nor the same comfort. Only the ground is rich. You witness not a similar thrift. Strange is it, but in 1840, the single State of New York alone earned over four million dollars more than the six States of North and South Carolina, Georgia, Alabama, Louisiana, and Mississippi! The annual earnings of little Ma.s.sachusetts, with her seven thousand and five hundred square miles, are nine million dollars more than the earnings of all Florida, Georgia, and South Carolina! The little county of Ess.e.x, with ninety-five thousand souls in 1840, earned more than the large State of South Carolina, with five hundred and ninety-five thousand.

In those States we miss the activity, intelligence, and enterprise of the North. You do not find the little humble school-house at every corner; the frequent meeting-house does not point its taper finger to the sky. Villages do not adorn the margin of the mountain, stream and sea; shops do not ring with industry; roads of earth and iron are poorer and less common. Temperance, morality, comfort are not there as here. In the slave States, in 1840, there were not quite three hundred and two thousand youths and maidens in all the schools, academies, and colleges of the South; but in 1840, in the free States of the North there were more than two million two hundred and twelve thousand in such inst.i.tutions! Little Rhode Island has five thousand more girls and boys at school than large South Carolina. The State of Ohio alone has more than seventeen thousand children at school beyond what the whole fifteen slave States can boast. The permanent literature of the nation all comes from the North; your historians are from that quarter--your Sparkses, your Bancrofts, your Hildreths, and Prescotts, and Ticknors; the poets are from the same quarter--your Whittiers, and Longfellows, and Lowells, and Bryants; the men of literature and religion--your Channings, and Irvings, and Emersons--are from the same quarter! Preaching--it is everywhere, and sermons are as thick almost as autumnal leaves; but who ever heard of a great or famous clergyman in a Southern State? of a great and famous sermon that rang through the nation from that quarter?

No man. Your Edwards of old time, and your Beechers, old and young, your Channing and Buckminster, and the rest, which throng to every man's lips--all are from the North. Nature has done enough for the South; G.o.d's cup of blessing runs over--and yet you see the result! But there has been no pestilence at the South more than at the North; no earthquake has torn the ground beneath their feet; no war has come to disturb them more than us. The government has never laid a withering hand on their commerce, their agriculture, their schools and colleges, their literature and their church.

Still, letting alone the South and the North as such, not considering either exclusively, we are one nation. What is a nation? It is one of the great parties in the world. It is a sectional party, having geographical limits; with a party organization, party opinions, party mottoes, party machinery, party leaders, and party followers; with some capital city for its party head-quarters. There has been an a.s.syrian party, a British, a Persian, an Egyptian, and a Roman party; there is now a Chinese party, and a Russian, a Turkish, a French, and an English party; these are also called nations. We belong to the American party, and that includes the North as well as the South; and so all are brothers of the same party, differing amongst ourselves--but from other nations in this, that we are the American party, and not the Russian nor the English.

We ought to look at the whole American party, the North and South, to see the total condition of the people. Now at this moment there is no lack of cattle and corn and cloth in the United States, North or South, only they are differently distributed in the different parts of the land. But still there is a great excitement. Men think the nation is in danger, and for many years there has not been so great an outcry and alarm amongst the politicians. The cry is raised, "The Union is in danger!" and if the Union falls, we are led to suppose that every thing falls. There will be no more Thanksgiving days; there will be anarchy and civil war, and the ruin of the American people! It is curious to see this material plenty, on the one side, and this political alarm and confusion on the other. This condition of alarm is so well known, that nothing more need be said about it at this moment.

Let me now come to the next point, and consider the Causes of our present condition. This will involve a consideration of the cause of our prosperity and of our alarm.

1. First, there are some causes which depend on G.o.d entirely; such as the nature of the country, soil, climate, and the like; its minerals, and natural productions; its seas and harbors, mountains and rivers. In respect to these natural advantages, the country is abundantly favored, but the North less so than the South. Tennessee, Virginia and Alabama, certainly have the advantage over Maine, New Hampshire and Ohio. That I pa.s.s by; a cause which depends wholly on G.o.d.