Page:Unconstitutionality of the Fugitive Act.djvu/19

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Glover was entitled to a fair and impartial trial, and that the people there would do what they could to secure him such a trial. Standing in my place in the crowd, I moved that they be so amended as to read that he was "entitled to a fair and impartial trial by jury," and the motion was adopted. I noticed that at the examinations subsequently had before the Commissioner, the District Attorney of the United States, while reading these resolutions, dwelt upon that claim with a peculiar emphasis, amounting as I thought to a sneer,—as though to claim a trial by jury for a person arrested as a fugitive, if not high treason, was still a crime of not less magnitude. Sir! the responsibility for that claim in those resolutions, does not belong to any of the defendants who have a yet been prosecuted. It belongs justly to me. And I am willing to bear its consequences now and hereafter. The pledge that I then made I repeat here. I will, so help me God! so long as I have a tongue to speak, never fail to assert the right of every man, woman and child, in the State of Wisconsin, without regard to color, rank or condition in life, to a right of trial by jury in all questions touching liberty or life. If this be treason, make the most of it,—if it be any crime less than treason—make the most of it![s 1]

And now to the extent of my ability, I shall proceed to fulfil my pledge here to day. And if I could have faith that any prayers of mine, could furnish me other aid, I would ask for the tongues of angels,—I would invoke the genius of liberty to inspire my lips,—when I attempt to speak in behalf of this great birth-right and best privilege of all who have lived within the protecting influence of the English common law! The trial by jury, whenever and wherever it originated, sprung from the people. It had its origin in their honesty, their justice, their humanity and truth.—And never among all the inventions of men, has any mode of trial been devised, which administers law, so effectually for the promotion of those great qualities, as the trial by jury. The people have clung to it with a tenacity that showed how truly they estimated its value. As the Ark of the Covenant, containing the testimonies of God, was borne by the twelve, chosen from the twelve tribes of Israel, from the wilderness onward to the land of promise,—and so during all that toilsome march, the waves of tyranny have divided before it and allowed the people to pass through unscathed. Amid all the strife and discord in private life,&mdahs;amid all the mutations of governments,—amid all the silent yet mighty workings of corruption, the trial by jury has vindicated its character as a shield of the innocent,—a merciful judge of the guilty, and a staunch and incorruptible deffender of the liberties of the people. And now when in the very house of its friends, a deadly blow is aimed at this great right,—when in the full blaze of the light of civil liberty, it is sought to be stricken down by the hands of an American Congress,—society should stand up as one man, and say in the language of a popular song:

Woodman! spare that tree,
Touch not a single bough!
In youth it sheltered me,
And I'll protect it now!

They should say this not from mere motives of gratitude for a past protection which they need no more, but because the trial by jury still is and ever will be, the best safeguards for all their dearest rights. Because it is a tree, that if preserved from the spoiler, will flourish in immortal vigor, so that their posterity may repose in peace and safety beneath its branches, when a thousand generations shall have passed away!

I sir, for one, was filled with rejoicing, when I leared that our Supreme court, had determined to preserve this great right, unimpaired to the people, even where property alone was concerned. That decision vindicated the Constitution against legislative innovations, and I regarded it as a good omen. The praises of the trial by jury have been "hymned by loftier harps than mine." And it might perhaps justly be regarded as a work of supererogation to say any thing, or to refer to what others have said in its praise. But there is a quality in human nature that leads us not to appreciate properly, those blessings we have always enjoyed. But now that we are losing it,—now that we have lost it,—it may not be altogether amiss to contemplate the magnitude of the loss.

Judge Story in the 3d volume of his Commentaries speaks of this right as follows:—

"It seems hardly necessary in this place to expatiate on the antiquity or importance of the trial by jury in criminal cases. It was from very early times, insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. The right constitutes the fundamental articles of Magna Charta, in which it is declared, "nullus homo capiatur, nec imprisonctur, aut exulet, aut aligno modo destruatur, &c; nisi per legale judicium parium suorum, col per legem terrae." No man shall be arrested, nor imprisoned, nor banished, nor deprived of life, &c. but by the judgment of his peers, or by the law of the land. The judgment of his peers, here alluded to, and commonly called in the quaint language of former times, a trial per pais, or tiral by the country, is the trial by a jury, who are called the peers of the party accused, being of like condition and equality in the State. When our more immediate ancesetors removed to America, they brought this great privilege with them, as their birth-right and inheritance, as a part of that admirable common law, which had interposed barriers on every side, against the approaches of arbitrary power. It is now incorporated into all our State Constitutions as a fundamental right, and the Constitution of the United States would have been justly obnoxious to the most conclusive objection, it it had not recognized and confined it in the most solemn terms. * * * * So long, indeed as this palladium remains sacred and inviolable, the liberties of a free government cannot wholly fall. * * * * * Mr. Justice Blackstone, with the warmth and pride becoming an Englishman, living under its blessed protection has said:—"A celebrated French writer, who concludes that because Rome, Sparta and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta and Carthage, at the time when their liberties were lost, were strangers to the trial by jury."

Chancellor Kent in the 2d volume of his commentaries, page 9, writes as follows;

"The Constitution of the United States, and the Constitutions of almost every State of the Union, contain the same declaration in substance, and nearly in the same language. And where express constitutional provisions on this subject appear to be wanting, the same principles are probably asserted by declatory legislative acts; and they must be regarded as fundamental doctrines in every State, for all the colonies were parties to the national declaration of rights in 1774, in which the trial by jury, and the other rights and liberties of English subjecs, were peremptorily claimed as their undoubted inheritance and birth-right. It may be received as a self evident proposition universally understood and acknowledge throughout this country, that no person can be taken or imprisoned, or disseized of his treehold, or liberties or estate, or exiled, or comdemned, or deprived of life, libery or property, unless by the law of the land, or the judgment of his peers. The words, by the law of the land, as used in magna charta in reference to this subject, are understood to mean due process of law, that is by indictment or presentment of good and lawful men, and this, said Lord Coke, is the true sense and exposition of those words."

And now without alluding further to the writings of any body, to show the value of this right, let us consider the means by which it is secured. In the ordinance of 1787, for the government of the Territory north west of the Ohio, there were certain articles of compact between the States "and the people of the Territory," made unalterable, unless by common consent. In the second of these, we find the following provisions:—The inhabitants of said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury: No person shall be deprived of his liberty or property, but by the judgment of his peers, or the land of the land, &c.

now, Sir, it is well known that the authors of this celebrated instrument, intended to secure by it forever, to the people of the northwest Territory, the great rights ennumerated in those articles made unalterable. They intended to plant the tree of liberty so deep, that no storm occurring on the surface could sweep it away. They intended that every man, who, in all coming time, should make his home in that territory, should purchase with the soil itself, as one of the "privileges and appurtenances thereto belonging," the right of trial by jury, and the other rights there enumerated. They intended to do this, and it has been fondly hoped, especially by the people of that territory, that they had done it.

I will read a few authorities upon the force and effect of the Ordinance. Daniel Webster in his speech on Mr. Foot's resolution concerning the public lands, delivered in the Senate in 1830, spoke of this instrument as follows:

"At the foundation of the Constitution of these new northwestern States, we are accustomed Sir, to praise the

  1. Payne quotes the words attributed to Patrick Henry, from his Speech on the Stamp Act in the Virginia House of Burgesses (1765). (Wikisource contributor note)