Congress should pass a law to punish any man with death who should pray to the “Father, Son, and Holy Ghost.” The government wishes to punish an obnoxious orthodox minister for violating this “form of law.” It is clearly unjust; but the judge charges the grand jury they are to “obey both” the laws of God and the statutes of men. The grand jury indict the man. He is brought for trial. The law is obviously unconstitutional, but the judge expels from the jury all who think the law is unconstitutional. He selects the personal enemies of the accused, and finds twelve men foolish enough or wicked enough to believe it is constitutional to do what the Constitution declares must not be done, and then proceeds to trial, selecting for foreman the man who has said, “All men that thus pray ought to be hung!” What is the value of your Constitution? The jury might convict, the judge sentence, the President issue his warrant, and the man be hanged in twenty-four hours, for doing a deed which the Constitution itself allows, and Christendom daily practises, and the convictions of two hundred million men require!
It is alleged the jury must not judge of the law, but only of the fact. See the consequences of this principle in several cases. The Secretary of State has declared the rescuing of Shadrach was “treason,” and, of course, punishable with death. Suppose the court had charged the jury that, to rescue a man out of the hands of an incompetent officer—an offence which in Boston has sometimes been punished with a fine of five dollars—was “levying war” against the United States, and they were only to find if the prisoner did the deed, and, if so, return a verdict of guilty. Suppose the jury are wicked enough to accept his charge, where is the protection of the citizen? The government may say, to smuggle goods into Boston harbour is “levying war,” and hang a man for treason who brings on shore an ounce of camphor in his pocket without paying duties! Is not the jury, in such a case, to judge what the law makes treason—to decide for itself?
There was once a law making it felony without benefit of clergy to read the Bible in the English language. Suppose the government, wishing to make away with an obnoxious man, should get him indicted next term for this
