Chapter III: Of the Great Safeguard Which Has Been Found Serviceable in (4)

"I offer nothing purely theoretical or speculative, and as
few opinions and conclusions as can possibly be given in a
historical narrative. The work finally reaches a period
when the Present and the Future become its subject, and when
therefore it can no longer relate any events of history
which have been completed; and is confined to the simple
statement of _the Fact_ that opposite opinions exist, and
may yet be advanced, concerning the problem of the Future.
These opinions are themselves weighed against one another,
but their value is not determined by dogmas, or phrases, or
declamations, but simply by facts. If the balance incline
towards a more liberal form of government, towards
democratic institutions, and therefore towards
self-government, and the participation of the many rather
than of the few in the affairs of the State, I am not to
blame, nor is it my ordinance, but that of History and of
Providence. My work is only (what all historical narrative
should be) a vindication of the decrees of Providence; and
to revolt against them appears to me neither pious in a
moral point of view, nor wise in a political. That which is
proved by the most remarkable facts of History, will not be
altered in the smallest degree by the suppression of my
work, or by my condemnation. The charge on this head is an
absurdity, since no rational end can be attained by it. It
aims at the suppression of a truth which, should _I_ not
tell it, will be ever louder and louder proclaimed by the
_Facts of History_.

"To believe such a thing possible is a proof how limited an
idea exists of the eager inquiry going on after
knowledge--and truth, the source and origin of all
knowledge. There will always be so eager a demand for a
history of the Present time, that, even should _I_ be
prevented, ten others would arise, only to proclaim the
louder, and to repeat the oftener, the truth which is here
suppressed. To believe that the philosophy of History can be
silenced by persecution, argues an entire ignorance even of
the external mechanism of philosophy. A political pamphlet,
intended to serve a particular purpose at a particular
period, may be suppressed. The author of such a pamphlet,
bent on agitation, can easily console himself for its
suppression. It has cost him little time and trouble; it is
only a means to an end, one means out of many means, any of
which, when this is lost, will serve the author as well. But
it is not thus with philosophical works, it is not thus with
the work before me. This book is deeply rooted in the
vocation of my whole life, and is the end of my
philosophical research; I have prepared myself for it by the
labor of years, and the labor of years will be necessary for
its completion. I have reached a time of life when I can
neither change my vocation, nor even cease to labor in this
vocation. I am also so imbued with my philosophy, that even
if I could change I would not. I may be hindered in the
prosecution of this work for four months, but in the fifth I
shall return to it. For a judicial sentence cannot arrest
(like a mere pamphlet) the philosophical scheme interwoven
into a whole existence."

"If it is possible that this 'Introduction' can be condemned
in Germany, that it can be prohibited, that by these means
the work should be strangled in its birth, then the
philosophy of history has no longer a place in Germany. The
tribunal of Baden will have given the first blow, in
pronouncing judgment on a matter which is purely
philosophical, and Germany, whose freedom of philosophical
research has been her pride and her boast, of which even the
various administrations of the nation have never been
jealous, will receive a shock such as she never before
sustained."

"My book is on so strictly a philosophical plan, and treats
of such comprehensive historical questions, that, properly,
no judgment of any value could be pronounced upon it but by
the professed historian, of whom there are not two dozen in
all Germany. Among them there has not, to this hour, been
found one competent to give an opinion in a few weeks on a
book which is the fruit of half a life. On the other hand,
there was soon a whole set of fanatical partisans and
obstreperous bunglers in a neighboring press, who in eight
days had condemned this work, in some instances, by calling
it an historical commonplace, and in others, a political
pamphlet with '_destructive tendencies_.' At the same time,
and in a manner easily accounted for, under the influence
of such an expression of public opinion, and almost before
any other could make itself heard, accusations were made
against the book, and it was confiscated. Let no one take it
amiss if, in the urgency of my defence, _I_ for a moment lay
aside modesty, as far as such modesty might prove injurious
to my cause. My work demonstrates a law of historical
development, which I do not claim as my property, or as
originating in me, but which has been demonstrated more than
two thousand years ago by the greatest thinker of all ages,
derived from observations on the history of the Grecian
State. To repeat a law which has been already demonstrated,
ought to appear but a trifling circumstance, and indeed
might merit the term of an historical commonplace; we could
even suppose that it might be mentioned in a popular as well
as in a philosophical book. Nevertheless this law has
scarcely been twice repeated in the course of two thousand
years, and then only by two imitators, who scarcely
understood its whole purport, though they were the most
thinking heads of the most thinking nations--Machiavelli in
Italy, and Hegel in Germany. I solemnly ask of the whole
philosophical world if my words can be gainsaid, and to name
for me the third, by whom the Aristotelian law, of which I
speak, has been repeated and understood. I have ventured to
consider the thought of Aristotle, and to apply it to the
history of modern European States, and I found it confirmed
by a series of developments which have occupied two thousand
years. I also found that the whole series of events
confirmatory of this law (itself deduced from experience)
are not yet entirely fulfilled. Like the astronomer, who,
from a known fraction of the path of a newly discovered
planet, calculates its whole course, I ventured to divine
that which is still wanting, and which may yet take
centuries to complete. I turned silently to those whose
profession was the study of history, to prove the justice of
my calculations; I handed my book over to coming generations
and coming centuries, with the silent demand, when the
required series of events shall be fulfilled, then to
pronounce the final sentence, whether this law, and its
purport as now explained, be just or not. This is the
philosophical character, and these the contents of my
book--no more than was indispensably necessary to make this
calculation. And now comes the charge, and pronounces that
in the character of a pamphleteer, I have endeavored to
excite a revolution in the Grand Duchy of Baden, or in the
German Confederation."

On the 8th of March--it should have been the _fifth_--the thing came to a close. On account of "his hostility to constitutional monarchy, and his declaration of its weakness, his denial of its good-will [towards the people], and his representing that the American Democracy was a universal necessity and a desirable fact," sentence was pronounced against him, condemning him to an imprisonment of four months, and ordering his book to be destroyed. There was no Jury of the People to try him! Here our own Court has an admirable precedent for punishing me for a word.[164]

[Footnote 164: See Preface to English Translation of Gervinus (London, 1853); and Allg. Lit. Zeitung fuer 1853, pp. 867, 883, 931, 946, 994, 1131.]

But even in Massachusetts, within twenty years, an attempt was made to punish a man for his opinions on a matter of history which had no connection with politics, or even with American Slavery. In July, 1834, Rev. George R. Noyes, a Unitarian Minister at Petersham, a retired scholar, a blameless man of fine abilities and very large attainments in theological learning, wrote an elaborate article in the Christian Examiner, the organ of the "Liberal Christians" in America, in which he maintained that Jesus of Nazareth is not the Messiah predicted in the Old Testament. "It is difficult," said this accomplished Theologian, "to point out any predictions which have been properly fulfilled in Jesus." Peter and Paul found the death and resurrection of Jesus in the 16th Psalm, but they "were in an error," which should not surprise us, for "the Evangelists and Apostles never claimed to be _inspired reasoners and interpreters_;" "they partook of the errors and prejudices of their age in things in which Christ had not instructed them." "The commonly received doctrine of the inspiration of all the writings included in the Bible, is a millstone hung round its neck [the neck of Christianity], sufficient to sink it."

The article was written with remarkable candor and moderation, and indicated a devout and holy purpose in the author. The doctrines were by no means new. But Hon. James T. Austin, was then Attorney-General of the State; his attention being called to it by an anonymous writer in a newspaper, he attacked Mr. Noyes's article, thus giving vent to his opinion thereon: "He considers its learning very ill bestowed, its researches worse than useless, and that its tendency is to strike down one of the pillars on which the fabric of Christianity is supported." "Its tendency is to shock the pious,--confound the unlearned,--overwhelm those who are but moderately versed in the recondite investigations of theology, and above all to open an arsenal whence all the small wits of the infidel army may supply themselves with arms. Its greater evil is to disarm the power of public opinion." "It certainly disarms to a great degree the power of the law."[165]

[Footnote 165: 16 Examiner, 321; 17 ibid. 127; Boston Atlas, July 8th and 9th, 1834.]

Gentlemen, suppose it had not been necessary to submit the matter to a Jury, what would the right of freedom of conscience be worth in the hands of such a man, "dressed in a little brief authority?" It was said at the time that the author was actually presented to the Grand-Jury, and an attempt made to procure an indictment for Blasphemy, or Misdemeanor. I know not how true the rumor was. The threat of prosecution came to nought, and Dr. Noyes, one of the most scholarly men in America, is now Professor of Theology in the Divinity School at Cambridge, and an honor to the liberal sect which maintains him there.

* * * * *

Gentlemen, when laws are unjustly severe, denouncing a punishment highly excessive, the juries refuse to convict. Examples of this are very common in trials for capital offences, now that the conscience of moral men has become so justly hostile to the judicial shedding of blood. There is no doubt with the Jurors as to the Fact, none as to the Law; but they say it is unjust to apply such a law to such a fact and hang a man. The Jury exercising their moral discretion, spite of the judge, and spite of the special statute or custom, are yet faithful to their official obligation and manly duty, and serve Justice, the ultimate End and Purpose of Law, whereto the statutes and customs are only provisional means. Foolish judges accuse such juries of "Perjury;" but it is clear enough, Gentlemen, where the falseness is.

"Do you take notice of that juryman dressed in blue?" said one of the judges at the old Bailey to Judge Nares. "Yes." "Well, then, take my word for it, there will not be a single conviction to-day for any capital offence." So it turned out. The "gentleman in blue" thought it unjust and wicked, contrary to the ultimate Purpose of law, to hang men, and he was faithful to his juror's oath in refusing to convict. Of course he did not doubt of the Fact, or the Law, only of the Justice of its Application. One day there will be a good many "gentlemen in blue."

To prevent this moral independence of the jury from defeating the immoral aim of the government, or of the judges, or the legislature--the court questions the jurors beforehand, and drives off from the panel all who think the statute unfit for such application. Gentlemen, that is a piece of wicked tyranny. It would be as unfair to exclude such men from the legislature, or from the polls, as from the jury box. In such cases the defendant is not tried by his "country," but by a jury packed for the purpose of convicting him, spite of the moral feelings of the people.

Sometimes the statute is so framed that the jurors must by their verdict tell an apparent falsehood, or commit a great injustice. When it was a capital offence in England to steal forty shillings, and evidence made it plain that the accused had actually stolen eight or ten times that value, you all know how often the jurors brought in a verdict of "_stealing thirty-nine shillings_."[166] They preferred to tell what seemed to be a lie, rather than kill a man for stealing fifteen or twenty dollars. The verdict of NOT GUILTY would have been perfectly just in form as in substance, and conformable to their official oath.

[Footnote 166: See several cases of this kind in Sullivan on Abolition of Punishment of Death, (N.Y. 1841), 73. Rantoul's Works, 459.]

Gentlemen, tyrannical rulers, and their servants, despotic and corrupt judges, have sought to frighten the juries from the exercise of all discretion--either moral or intellectual. To that end they threaten them before the verdict, and punish them when they decide contrary to the wish of the tyrant. To make the jurors agree in a unanimous verdict, they were kept without "fire or water or food or bed" until they came to a conclusion; if eleven were of one mind and the twelfth not convinced, the refractory juror was fined or put in jail.[167] If the verdict, when unanimously given, did not satisfy the judge or his master, the jurors were often punished.[168] I have already shown you how the juries were treated--with fine and imprisonment--who acquitted Throckmorton and Penn.[169] When John Lilburne was tried for his life in 1653, he censured the authorities which prosecuted him and appealed to the "honorable Jury, the Keepers of the Liberties of England:" they found him Not Guilty, and were themselves brought before the council of State for punishment. "Thomas Greene of Snow-hill, tallow chandler, Foreman of the Jury, being asked what the grounds and reasons were that moved him to find ... Lilburne not guilty, ... saith '_that he did discharge his conscience in what he then did, and that he will give no further answer to any questions which shall be asked him upon that matter_.'"[170] This was in the time of Cromwell; but as the People were indignant at his tyrannical conduct in that matter, and his insolent attempt to punish the jurors, they escaped without fine or imprisonment. Indeed more than a hundred and twenty-five years before, Thomas Smith had declared "such doings to be very violent, tyrannical, and contrary to the liberty and customs of the realm of England." Sir Matthew Hale said at a later day, "It would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions; unhappy also for the prisoner; for if the judge's opinion must rule the verdict, the trial by jury would be useless."[171] Judge Kelyng was particularly hostile to the jury, throwing aside "all regard to moderation and decency." He compelled the grand-jury of Somersetshire to find an indictment against their consciences, reproaching Sir Hugh Wyndham, the foreman, as the "Head of a Faction." He told the jury, "You are all my servants, and I will make the best in England stoop!" He said it was a "misdemeanor" for them to discriminate between murder and manslaughter; that was for the court to determine. But, Gentlemen, it does not appear that he had his brother-in-law on that grand-jury. Several persons were indicted for "attending a conventicle;" the jury acquitted them contrary to his wish, and he fined them $334 apiece, and put them in jail till it was paid. On another occasion, this servile creature of Charles II. fined and imprisoned all the jurors because they convicted of _manslaughter_ a man whom he wanted to hang. But for this conduct he was accused in the House of Commons, and brought to answer for it at their bar.[172]

[Footnote 167: Forsyth, 241, 243.]

[Footnote 168: Thomas Smith, Commonwealth, (London, 1589,) b. iii. c. 1. Hargrave, in 6 St. Tr. 1019.]

[Footnote 169: See above, p. 95. 1 St. Tr. 901; 6 St. Tr. 967, 969, 999; 21 St. Tr. 925.]

[Footnote 170: 1 St. Tr. 445.]

[Footnote 171: 6 St. Tr. 967, note; Bushell's Case, Ibid. 999, and Hargrave's note, 1013.]

[Footnote 172: 2 Campbell, Justices, 405; 6 St. Tr. 910; Kelyng, 50; 3 Hallam, 6, note; Commons Journals, 16 Oct. 1667.]

In 1680 Chief Justice Scroggs was brought up before the House of Commons for discharging "a refractory grand-jury"--such an one as was discharged in Boston last July: Sir Francis Winnington said, "If the judges instead of acting by law shall be acted by their own ambition, and endeavor to get promotion rather by worshipping the rising sun than doing justice, this nation will soon be reduced to a miserable condition." "As faults committed by judges are of more dangerous consequence than others to the public, so there do not want precedents of severer chastisements for them than for others."[173]

[Footnote 173: 4 Parl. Hist. 1224.]

But spite of the continual attempt to destroy the value of the trial by jury, and take from the People their ancient, sevenfold shield, the progress of liberty is perpetual. Now and then there arose lawyers and judges like Sir Matthew Hale, Holt, Vaughan, Somers, Camden, and Erskine, who reached out a helping hand. Nay, politicians came up to its defence. But the great power which has sustained and developed it is the sturdy and unconquerable Love of individual Liberty which is one of the most marked characteristics of the Anglo-Saxon, whether Briton or American. The Common People of England sent Juries, as well as regiments of Ironsides, to do battle for the Right. Gentlemen, let us devoutly thank God for this Safeguard of Freedom, and take heed that it suffers no detriment in our day, but serves always the Higher Law of the Infinite God.

Now, Gentlemen of the Jury, I come to the end.