offence, and the judge should declare that the old law is still in force. Is the jury not to judge whether we live under the bloody Mary or the constitution of Massachusetts—whether what was once law is so now? If not, then the laws of King Darius or King Pharaoh may be revived whenever Judge Hategood sees fit, and Faithful must hang for it.[1]
Suppose the judge makes a law himself, declaring that if any one speaks against the justice of the court, he shall be whipped with forty stripes save one, and gets a man indicted under it and brought to trial—is the jury not to judge if there be such a law? Then we might as well give up all legislation, and leave all to the “discretion of the court.”
A judge of the United States Court was once displaced on account of mental imbecility. Was Judge Simpleton to determine what was law, what not, for a jury of intelligent men?
Another judge, not long ago, in Boston, in his place in court, gave an opinion in a most important affair, and was drunk when he gave it. I do not mean he was horizontally drunk, but only so that his friends feared “he would break down in court, and expose himself.” Was the opinion of a drunken judge to be taken for law by sober men?
Suppose the judge is not a simpleton nor a drunkard, but is only an ordinary lawyer and a political partisan, and appointed to his office because he is a fawning
- ↑
In the “Pilgrim's Progress” Bunyan gives a case which it is probable
was fictitious only in the names of the parties. Faithful was indicted
before Lord Hategood for a capital offence. Mr. Envy testified. Then the
judge asked him, Hast thou any more to say? Envy replied, “My Lord,
I could say much more, only I would not be tedious to the court. Yet,
if need be, when the other gentlemen have given in their evidence, rather
than anything should be wanting that will despatch him, I will enlarge
my testimony against him.”
Lord Hategood stated the law. There were three statutes against the prisoner: 1. The act of King Pharaoh, in 1 Exodus 22; 2. That of King Nebuchadnezzar, in 3 Daniel 6; and 3. That of King Darius, in 6 Daniel 7. The Jury took “the law from the ruling of the court;” and, having been carefully packed, to judge from the names, and all just men expelled from their number, they readily found such a verdict as the government had previously determined upon.
The same thing, mutatis mutandis, has been attempted in America, in Boston, and we may fear that in some instances it will succeed.
