Nonjurants

“ Yet, on the other hand, when I reflect that it may be only the result of a reaction in principle, proceeding from a latent conviction that all is not right within, and that we reject the tribunal because we are conscious that it must condemn us—abjure the authority of the court because we have violated its jurisdiction; yes, when I reflect upon this, it is then that these visitations of gloom and wretchedness sometimes agonize my mind until it becomes dark and heated, like hell, and I curse both myself and my creed. ”

“ If in anything I have offended against the law, I am not so popular in this community as that it would be difficult to convict me. You have courts and judges and juries; they find nothing against me. And now you come together for the purpose of driving out a confessedly innocent man, for no cause but that he dares to think and speak as his conscience and his God dictate. Will conduct like this stand the scrutiny of your country, of posterity, above all, of the judgment-day? For remember, the Judge of that day is no respecter of persons. ”

“ For me, to whom all earthly interests are dead, this policy is idle and superfluous. I hesitate not to tell you, my lord judge,—to proclaim to you, gentlemen of the jury,—that the laws which I have broken through my life I despise in death! Your laws are but of two classes; the one makes criminals, the other punishes them. ”

“ An action for criminal conversation being brought by a peer against a prince of the blood, you were daring enough to tell the jury that, in fixing the damages, they were to pay no regard to the quality or fortune of the parties;—that it was a trial between A. and B.—that they were to consider the offence in a moral light only, and give no greater damages to a peer of the realm, than to the meanest mechanic. I shall not attempt to refute a doctrine, which, if it was meant for law, carries falsehood and absurdity upon the face of it ”

“ Should any private man, my lords, offer a reward to any that would give evidence against another, without specifying the crime of which he is accused, doubtless he would be considered by the laws of this nation, as a violator of the rights of society, an open slanderer, and a disturber of mankind ”

“ My justification it would be needful to make before a much wider tribunal, for I have perpetrated an act which the whole conventional world have leagued together, in ignorance, prejudice and hypocrisy, to denominate a crime, and I could expect little or no sympathy from that wide bar of public judgment that knows nothing of me nor of my surroundings, and which never could be made to comprehend my nature ”

“ Why have the gift to prove that white is black and black is white if that gift is not to be carried to its appointed issue? If I do not barter it for a means of livelihood by proving the guilty to be innocent, how am I to discharge the higher function of proving the innocent to be not guilty? If, in my cowardice, I decline to go into court lest I save those who ought not to be saved, think of the innocent persons who will perish for the lack of a true advocate. ”

“ The genius, the nature, and the spirit of our State governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime, or violate the rights of an antecedent lawful private contract, or the right of private property. ”

“ While the defendants and the prosecutors stand before you as individuals, it is not the triumph of either group alone that is committed to your judgment. Above all personalities there are anonymous and impersonal forces whose conflict makes up much of human history. It is yours to throw the strength of the law back of either the one or the other of these forces for at least another generation. ”

“ The law, my lords, is the measure of political, as conscience of moral right; and he that breaks no law, may indeed be criminal, but is not punishable. The law likewise prescribes the method of prosecuting guilt; and as we, by omitting any crime in our laws, disable ourselves from punishing it, however publick or flagrant, so by regulating the process in our courts of justice, we give security to that guilt, which by that process cannot be detected. ”

“ The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law. ”

“ If they are caught in their own toils, and are themselves the sufferers, it is a legitimate consequence of their violation of the rules of law and morality. Those who violate these laws must suffer the penalty. ”

“ If now, of all these forms, I choose the least violent, the legal struggle for individual rights in the form of an action at law, it is not because it has for jurists a higher interest than any other, but because, in a trial at law, the real nature of the case is most subject to the danger of being ignored both by jurists and the laity. ”

“ Now, we come to guaranties of the right of the people to protection against any trial, except the same be conducted in accordance with the guaranties of the Constitution. These guaranties are for all persons, young or old, rich or poor. You know sometimes the innocent are charged with grave crimes. A crime is committed in the darkness of the night. The criminal has fled. The first duty of the officers of the government—the servants of the people—is to find the criminal so that he may be punished for his wrongdoing. ”

“ All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, [24] the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. ”

“ For every statute in print there are a hundred that have no tangible existence, based on our sense of decency, of duty and of honor, which are equally controlling and which it has never been found necessary to reduce to writing, since their infraction usually brings its own penalty or infringes the more delicate domain of private conscience where the crude processes of the criminal law cannot follow. ”

“ Even if the paraphernalia of justice,—the judge, and the jury, and the lawyers, could be induced to declare her innocent before all men, must she not confess her guilt to him,—to that one,—for whose verdict alone she cared? ”

“ The wretch stained with crime—polluted with iniquity—for which, perhaps, the statute-book contains neither name nor indictment—whose trembling lips are eager to avow that guilt which, by confessing, he hopes may alleviate the penalty—this man, I say, is checked in his intentions—he is warned not, by any chance expression, to hazard a conviction of his crime, and told in the language of the law not to criminate himself. ”

“ They retired; returned with downcast looks, and gave a verdict in accordance with the evidence: theirs not to argue the point of law, the fact was sufficient.
“Prisoners at the bar,” said the judge, “you have been convicted on the clearest evidence of an act of felony—of seeking to deprive the King of the property willed to him by the high estates of the realm, in trust for the nation. Into your motives I need not enquire, but no man can be a law unto himself; born within these realms you are subject to the authorities thereof, and for your disobedience to them you must now die. ”

“ There must be a presentment, by at least twelve sworn men, before a man can be held to answer to a charge by which it can be forfeited. Then come the traverse jury, the right of peremptory challenge, the assignment of counsel, the right to see the indictment beforehand, and to know the names of witnesses who are to be called against the accused, and compulsory process to insure the attendance of witnesses in his favor! What noble barriers are these against the oppression of a powerful government, and the malignant passions of powerful men! ”

“ There are on the Continent great and enlightened countries, in which the criminal procedure is not so favorable to innocence, does not afford the same security against erroneous conviction, as it does among us; countries where the Courts of Justice seem to think they fail in their duty unless they find somebody guilty; and in their really laudable desire to hunt guilt from its hiding places, expose themselves to a serious danger of condemning the innocent. ”

“ It is also just, that the accused should have the liberty of excluding a certain number of his judges. Where this liberty is enjoyed for a long time, without any instance to the contrary, the criminal seems to condemn himself. ”

“ In other words, having regard to the powers conferred, to the protection of society, to the honest and fair administration of justice and to the evil to come from its obstruction, the wrong depends upon the tendency of the acts to accomplish this result without reference to the consideration of how far they may have been without influence in a particular case. The wrongdoer may not be heard to try the power of the judge to resist acts of obstruction and wrongdoing by him committed as a prelude to trial and punishment for his wrongful acts. ”

“ But, my lords, in order to discover whether this consequence be necessary, it must first be inquired why the present law is of no force? For, my lords, it will be found, upon reflection, that there are certain degrees of corruption that may hinder the effects of the best laws. The magistrates may be vitious, and forbear to enforce that law, by which themselves are condemned; they may be indolent, and inclined rather to connive at wickedness by which they are not injured themselves, than to repress it by a laborious exertion of their authority ”

“ No court or jury is called to adjudicate upon his disputes or his abuses, save his own conscience; and no powers are invoked to redress them, save those with which the God of Nature has endowed him. He knows no government—no laws, save those of his own creation and adoption. He lives in no society which he must look up to or propitiate. ”

“ If any one thinks that he will pervert the power of justice in the minds of the judges, and unseasonably litigate or advocate, let any one who likes indict him for malpractices of law and dishonest advocacy, and let him be judged in the court of select judges; and if he be convicted, let the court determine whether he may be supposed to act from a love of money or from contentiousness. ”

“ Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? ”

“ Lawyers distinguish betwixt malum prohibitum and malum in se; that is, between crimes that are so in their own nature, and crimes that owe their pravity to a disobedience to positive laws. Of the former sort are all those actions, by which one man hurts another in his reputation, his person, or his fortune; and those actions are still more heinous, if they injure, or are intended to injure, the whole society. ”

“ But when the crime is an offence against a fellow-subject, one half of the judges should be peers to the accused, and the other peers to the person offended. So that all private interest, which, in spite of ourselves, modifies the appearance of objects, even in the eyes of the most equitable, is counteracted, and nothing remains to turn aside the direction of truth and the laws. ”

“ But far different, my lords, are the circumstances of those who are now invited to throng the courts of justice, and stun us with depositions and discoveries. They are men supposed criminal by the indemnity which is offered them; and by the nature of their crimes it is made at least probable, that they are in daily hazard of discovery and punishment; from which they are summoned to set themselves free for ever, by accusing a man of whom it has not been yet proved that he can legally be called to a trial. ”

“ We must teach them that it guarantees the inviolability of [pg 209] contracts, that it prevents even a great State from taking the life or property of its humblest citizen without a trial under due process of law, that trial by jury is preserved, and that no man can be convicted of a crime without the privilege of being represented by counsel, and that no man can be compelled to be a witness against himself. ”

“ To censure guilt, my lords, is undoubtedly necessary, and to inquire into the conduct of men in power, incontestably just; but by the laws both of heaven and earth, the means as well as the end are prescribed, rectum recte, legitimum legitime faciendum; we must not only propose a good end in our conduct, but must attain it by that method which equity directs, and the law prescribes. ”

“ If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court. ”

“ For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. ”