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miaintained. And by the sanctity of the jury we mean the observance of all those rules and formalities which stand in the
government's packing a jury for its own ends, and which secure to the party accused, as far as human devices can do it, a fair trial by his peers. In a multitude of the cases between man and man, involving nice questions of intricate rights, the decision of a single competent judge would be quite as likely to answer the ends of exact justice as the verdict of Twelve Men selected by lot from the community. But even here; the wise jealousy of the olden time has required that an unlearned but impartial body of twelve men should pass upon every dispute, in the faith that, if they could not unravel and explain a tangled web of law themselves, they could discern when it was properly disentangled, and, if need were, stand between Right and an Arbitrary Judge. But above all, and more than all, is the Anglo-Saxon, the British, the American Necessity of such an impartial body in cases where the Nation denounces one of its members as a just object of its punishments. Woe to the Judge that tampers with this sanction and safeguard of personal liberty, -- that liberty which it is the first object of civil government to secure ! “He that falleth upon this stone shall be broken ; and he upon whom it falleth it shall grind him to powder.”
The Magistrate who presided at these trials won for himself an unenviable name in connection with the Trial by Jury. When ERSKINE was raised to the peerage, upon his appointment to the Chancellorship, he took for the motto of his coat of arms “ TRIAL BY JURY,” in commemoration of his memorable victories in behalf of the rights of juries in the State trials of HORNE TOOKE, THELWALL and HARDY. His fame he wisely foresaw would rest chiefly, after his triumphs of the forum had become a tradition, upon what he had done to interpose the barrier of a jury between angry power and its victim. The permanent reputation of Judge SPRAGUE will be connected with recollections quite the opposite of this — recollections of his endeavors, happily thus far fruitless ones, to change the authentic customs, recognized by law, which should regulate the order of the Jury list, to suit the purposes of power. He has distinguished himself, as no Judge has done before, of our time at least, by throwing the whole weight of his influence on the side of power and against the accused parties in a state trial. From his Charge to the Grand Jury down through the whole course of the two trials which have been had thus far, before him, it has been obvious to Bar, to Jury and to Spectator that he had pre-ordained a conviction, and that he
was employing his legal acumen and forensic skill to supply the deficiencies of the District Attorney and his Assistant and to do their work. Though veiled, generally, under the sauvity and courtesy which mark his manners, this was the impression he conveyed to every unbiased mind. And at times even his habitual self-command was hardly enough to conceal the determined purpose of his soul as the trial proceeded, and the angry disappointment occasioned by their abortive issue.
For some reasons, which we will not attempt to account for, the prosecuting officers seemed to have formed the opinion that Boston and certain neighboring towns would be more likely to furnish the materials of a pliant Jury than the remoter districts. It became, consequently, their wish that the order of the Jury list should be so arranged that the jurors from those places should be first called. Now, the law of the United States says that the Jury in the U. S. Courts shall be made up, as nearly as may be, in accordance with the custom of the State in which it is held. And the laws of Massachusetts ordain that all the jurors, from whatever town they may come, shall be arranged in alphabetical order upon the list. It would appear, then, that the course to be pursued was plainly laid down, and that all the names returned should be placed alphabetically, without regard to the towns from which they came. This would, obviously, be the fairest possible course and give both parties an equal chance, with the least possible danger of the panel being affected by the influence of local biases. But Judge SPRAGUE appointed that the towns should be arranged alphabetically, by which course Boston was sure to come first, or nearly so, and the jurors from each town placed alphabetically under it, - an arrangement in nowise answering the letter or the spirit of the law. And this, too, in the teeth of his own declaration that he had directed the Clerk to observe the ancient usage, so that there might be no room left for a charge of packing the Jury! Thus making an arrangement differing from the old one, and one not in accordance with the law, but which had the effect of putting the Boston Jurymen into the box !
And then when examining a juror upon the voir dire, to ascertain whether or not he had formed or expressed any opinions incompatible with the due performance of his functions, and the juror declared that "he had no feeling in the case except such as sprang from a general sympathy with the oppressed everywhere,” Judge SPRAGUE ordered him to stand aside as an incompetent Juror! Could a circumstance
be imagined which would express the animus of a Judge more strongly than this ? Perhaps it is true that a general sympathy with the oppressed is a disqualification to a juror in a case where the United States and Slavery are on one side, and a negro.or an Abolitionist on the other; but it is an odd decision to be judicially pronounced. That Judge SPRAGUE should have been swift to recognize the constitutionality of the Fugitive Law is perhaps not to be wondered at. But it is rather singular that his regard for his professional reputation should not have made him hesitate to fortify his opinion by the newspaper accounts of the opinions of Judges not duly reported and having no legal weight whatever. Judge SPRAGUE is, doubtless, a learned as well as an acute lawyer, and therefore, perhaps, hesitated to assume the whole burden of that decision. He has virtually ruled out the single virtue of a written Constitution, that it is unalterable by prescription or custom, or any power except that which created it, by arguing from the practice to the letter, instead of compelling the letter to inform and regulate the practice. And he set up, dogmatically, the doctrine which has no good legal authority, but which servile Judges in all time have endeavored to establish, that Juries are not judges of the law as well as of the fact, and to exclude from the Jury-box men who would not bind themselves to accept his interpretation of the law.
But it is in vain to attempt to go into the detail which a due consideration of Judge SPRAGUE's conduct would demand, within our present limits. The explanation of it all, as we conceive, exposes the weak point of our National Judiciary. Our National Judges are, almost of necessity, political Judges. They are appointed as the reward of partisan services, and it is by no means understood that the Bench is any impediment to political promotion. On the contrary, it may be made the vantage ground from which Ambition may vault or climb to the higher places. It is not so in England. There a Judge is removed, by Public Sentiment and the acknowledged proprieties of his position, from the temptations of political life. And eminence at the bar is required, by the profession and by the public, as a condition of elevation to the Bench. How many of the U. S. Judges owe their elevation to their successes of the stump rather than of the forum ! The claims of Judge SPRAGUE to his preferment are certainly sufficient. Besides his respectable rank at the bar, he was one of those devoted men who assisted at the grand service held in Faneuil Hall in 1835, for the propitiation of Slavery, and the one who apostrophized WASH
THAT SLAVEHOLDER !” Unhappy man, who condensed
his iniquity into an epigram!- who reduced it into a shape the most portable and the most easily turned against him! This act and the spirit which inspired it was probably the remote reason why Judge SPRAGUE is on the Bench. But the immediate occasion of his promotion was his active agency in the Convention that nominated General HARRISON, and in the campaign that carried it out. Such are some of the rewards of patriotism! Republics are not always ungrateful !
In November, the trial of ROBERT MORRIS, Esq., one of the few colored men who have been admitted to practice at the Bar, came on and resulted in a triumphant acquittal. In this case, as in the two previous ones, no man was permitted to sit on the Jury who had an ill opinion of the Fugitive Law, or who would not consent to yield his birth-right to judge of the sufficiency of the law, as well as of the facts, into the hands of the Judge. And yet this was the result. It showed that even men who are willing thus to denude themselves of their most sacred privilege will not consent to yield the lesser one and convict a man whom they do not think to be guilty, merely to gratify Mr. WEBSTER, Mr. FILLMORE and the Unionsavers in general. It is but due, however, to Mr. Justice Curtis, who presided at the trial, to say, that, setting aside his jury-catechising and his vindication of his monopoly of the law (in which he but followed the antipathies native to his species ; for what great Judge was there ever that did not hate a Jury ?) with these inconsiderable exceptions, his conduct during the trial was unexceptionable, and his charge impartial. His conduct in this particular honorably contrasted with that of Judge SPRAGUE on the previous trials, who seemed to regard it as his mission to make good the forensic shortcomings of the poetical District Attorney. Mr. Hale and Mr. Dana well merited the gratification of this triumph by their admirable management of the defence. Mr. Hale’s concluding argument was a magnificent effort of forensic eloquence, worthy of ERSKINE himself, in the State Trials, (not more important in their issues than these,) which have given him his historical immortality.
Whether the effect of this defeat in their strongest case will lead to the abandonment of the other proceedings, by the Government, has not yet evolved. It is very unlikely that a more favorable result can be expected in the other cases. In this, eleven of the Jury were for acquittal at the moment they were shut up, and the twelfth did not stand out long. Under these circumstances should the Government hold these indietments over the heads of men whom they cannot expect to convict, and subject them to all the expense and annoyance of
preparation for trial, it will be a high-handed and outrageous proceeding But it would be in accordance with all its other acts in this direction.
The City Fathers distinguished themselves on this occasion by the avidity with which they seized it to free themselves from the suspicion of having taken a manly and honorable course. In an early stage of the proceedings Riley, the Deputy Marshal, had applied to City Marshal Tukey and the Mayor for assistance. None was furnished, as none could be lawfully demanded or employed, under the laws of the State. Whether this was done through a misunderstanding of the nature of the requisition, or from a full understanding of it and of their duties in the premises, we cannot say, but so it was. A controversy took place in the papers between these three functionaries, to the readiness of the Mayor and Marshal to violate the laws of the State for the convenience of a Slavecatcher, the decision of which can be of no imaginable importance inasmuch as the only matter at issue was their respective personal veracities. But the roar of Pro-Slavery rage which was reverberated from Washington and rolled through the streets of Boston, found the following expression in the action of the Mayor and Alder
“ CITY OF Boston. In
In Board of Aldermen, Tuesday, Feb. 18, 1851. Whereas, this Board has learned with deep regret that the integrity of the laws and the dignity of the Commonwealth and city have been greatly impaired by the forcible rescue and abduetion of a prisoner from the hands of an officer of the United States, who had him in legal custody; therefore it is
Ordered, That the City Marshal, under the instructions of the Mayor, be directed, whenever he shall be properly informed by a public officer of the State, or the United States, that there is danger that he shall be unlawfully obstructed in the performance of his official duties by a mob, and that he needs his assistance, immediately to repair to the place where it is apprehended said riot will be had, and there, faithfully and truly, with the whole police force under his control, use the same, in the most energetic manner possible, in support of the laws, and the maintenance of the public peace.”
This order was subsequently unanimously approved of by the Common Council in resolutions, which, further, cordially approved of the Proclamation of the President and promised their earnest efforts to carry out its recommendations ! This was the disgraceful attitude in which Boston was placed before the world by her constituted aų, thorities !