The Charge of the Chief Justice to the Grand Jury

GENTLEMEN of the Grand Jury: When I had Occasion last to speak from this Place to the Grand Jury, I made fome general Reflections upon the Nature and End of Civil Government. I then remarked, that it was essential to a Free People, that they should be governed by known and certain Laws.^* From thence I took Occasion to observe upon a well known Maxim of Government, that the Person of the Judge and the Legislator should never be united in the lame Person. — I don’t know how it happened, but this Observation of mine was soon after remarked upon in the Papers,^† and a Suggestion thrown out, that I had been, for a Number of Years past, acting in direct Opposition to this Principle of mine; and, in Violation of my own Confidence, had continued a Practice diametrically repugnant to my own Sentiments and Opinion. — This was a pretty Home Reflection. I should not have mentioned this Matter now, but from a firm and hearty Regard to my Country, — to show People the great Impropriety of such Reflections, and to let them know the Dangers they are exposed to from countenancing such reflections, and the Punishment those are obnoxious to, who publish Things of this Nature.

To suffer the Tranfactions and Opinions of the Executive Court to be illiberally animadverted upon is of the most dangerous Tendency to the Community : For, if the Authority of the Executive Courts is brought into Contempt, what Mis chiefs will not infest Society!

It is really amazing to me, how I could be misunderstood, unless through Willfullneis, in a Matter, in which, if I had been attended to, it was evident I leaned quite the other Way. — For, at that very Time, I mentioned, as the Reason why the Judge and Legislator should not be the same Person, was because the Will of the Judge would then be Law, and that in such a Cafe, the Law would be uncertain, depending upon the arbitrary Will of another.

This I said, to elucidate the main Object I had in View, that the Laws of every State ought always to be fixed, certain and known; and that such Laws should ever be put in due Execution. — For, when the arbitrary Will of the Judge is the Law, the Laws will be perpetually fluctuating and uncertain, so that the Subject can never know what Laws to obey, nor the Executive Officer what Laws to execute. — The whole Tenor, Scope and Connexion of what I said, very plainly showed my Meaning. — But, because I advanced, that the Direction, Opinion and Will of the Judge should never be the Law — could it be reasonably inferred that the Judge should never participate in the Legislative at all ? — could it justly be concluded that I meant, that a Judge should never share at all in making the Laws ? It was very obvious my Meaning was dircetly the reverse.

It is very extraordinary to find the same Persons contending for an unlimited Freedom of Thought and Action, which they would confine wholly to themselves ? We find one Side hardly allowed to contradict what the other advances, and not permitted even to reason, without being treated in the most abusive Manner, and vilifyed beyond all Bounds. — Nothing can be more unjust than this.

Pretty high Notions of the Liberty of the Press, I am senfible, have prevailed of late among us; but it is very dangerous to meddle with, and strike at this Court.

The Liberty of the Press is doubtless a very great Blessing; but this Liberty means no more than a Freedom for every Thing to pass from the Press without a Licence. — That is, you shall not be obliged to obtain a Licence from any Authority before the Emission of Things from the Press. Unlicenced Printing was never thought to mean a Liberty of reviling and calumniating all Ranks and Degrees of Men with Impunity, all Authority with Ignominy. — To carry this absurd Notion of the Liberty of the Press to the Length some would have it — to print every Thing that is Libellous and Slanderous — is truly astonishing, and of the moft dangerous Tendency.

To publish that a Man was a Bankrupt, a Villain or the like, would assuredly be liable to a civil Action, if not an Indictment. — To strike a Man in the King’s Court will subject the Offender to the Loss of his Hand and Imprisonment for Life. — And yet, shall that same Court tolerate the grossest Abuse in the publick Prints, and let all Insults pass with Impunity? — Shall a Man be allowed to publish openly of an Executive Court, in Print, what he dares not charge a private Man with, in Conversation ?

I don’t give the Abuse in this Matter in Charge to you, Gentlemen, because I conceive that this Court have full Power to proceed in a much more Summary Way to execute Justice on the Offenders.

We often hear of very severe Strictures made upon the Conduct of Ministers of State in Great Britain; but we never hear of fimilar Reflections upon the Judges of Westminster Hall. — They would issue a Process for Contempt of the Court, and commit the Printer inftantly, if he did not expose the Authors — and, if he did, very like, both Author and Publisher.

’Tis on the Dignity and Support of the Executive Courts that your own Liberty depends. Let the Respect due to these Courts be lost, let their Dignity not be kept up, by a Support of Authority, and all Order and Government will soon be at End. For what Order can there be in a Society where the Courts which are to carry the Laws into Execution are treated with a contemptuous Disrespect ? — If such an unlimited Liberty is indulged and carried on, we shall soon approach near to that Licentiousness which is worse than Tyranny.

I would mention, in Order to show People the Hazard they run, in treating this Court abusively, and to caution all against a like Conduct for the Future, that we are not obliged to have the Matter presented in the first Place by the Grand Jury, then to have it left to a Petit Jury to be decided, before the Offence can be punished; but this Court may proceed in a far more summary Manner, to bring the Offender to Juftice. — This Court will ever take proper Care to secure their Honour by keeping up their Authority.

I have said thus much, that a general Abhorrence of such gross Abuse may take Place for the Future, and every Thing of the like Kind hereafter be univerfally discountenanced among us.

(Here I was called out of Court: — The Chief Juftice then, as I was informed, went on to hint, as some thought, at what Major Hawley had published in the Papers relative to the Berkshire Affair. ⁽²⁾ When I returned, the Chief Justice was passing very high Encomiums upon the Judges of England, and speaking upon those Judges who were guilty of Unfaithfullness, Bribery and Corruption. He said, —)

They must certainly be the most abandonedly wicked of all Men. — They deserve the worst Punishment, and I pray God they may always meet with it. — But I believe, whenever such Characters have appeared, of which, to the Glory of the English Nation, there have been very few Instances, they have never been attacked in the publick Prints.

(The Judge here charged the Jury about the criminal Affairs, which in this Court were numerous, and then concluded with saying, —)

We frequently hear Talk of Tumults and Disor-ders — but few know the Danger they run, in engaging in such Disorders. For, if a Man is attacked, upon any Pretence whatever, in his own House, whether it be to treat him contemptuously for the Diversion and Sport of those who assault him, or for whatever other Cause, if the Man who is thus beset kills any one or all of those who thus abuse him, he is only guilty of Manslaughter, for which he shall have his Clergy; whereas, if any one of the others should unfortunately happen to kill a Man, all those, who anyways assisted or abetted the Offenders, are every one of them guilty of Murder, and must suffer the Pains of Death.

Gentlemen of the Grand Jury : —

You must carefully attend to all the Obligations

which you brought into Court with you, and, more especially, to that additional Obligation you are now under, by the Oath of God which is upon you. You are to inquire into and present all heinous and dangerous Offences. You are not to suffer your-selves to be guided or in the lead; governed by Hatred, Envy or Malice, or Favour or Affection.

Be careful to observe your Oath, and keep the Fear of God before your Eyes — I cannot end with a better Caution.

Note.

The “ Berkshire Affair ” alluded to on p. 246 was the trial of Seth Warren, indicted with others for a riot and rescue of one Franklin, arrested on civil process, while the Courts were closed by the Stamp Act. Major Hawley was counsel for the prisoner; and from his account of the affair, published in the “ Boston Evening Post,” July 6th and 23rd, 1767, we compile the following brief statement:

One Morse, a deputy sheriff of Berkshire, having arrested a prisoner on a justice’s execution, he was rescued by the defendant and others, “ the said Warren and others declaring to the said Morse that it would be in vain for him to attempt to take any person from Lanesborough to prison for debt, so long as prisoners when committed could not be allowed to have the liberty of the prisson yard upon any terms, but must; be kept in as close custody as felons, and until the Court should be open, and people should be admitted, by some course or process of law, to recover their dues as formerly. And, to be explicit, it appeared in evidence that the plain sense of what those persons at that time declared to Morse was, that they desired he would not attempt any more to take any person from Lanesborough to goal on writs purchased or sued out before the first of November for debt, so long as they could not have their lawful right, viz., the benefit and priviledges of the King’s writs for the recovery of their just dues of those who were indebted to them ; and that if he should attempt it, and should actually take, and arrest any person in Lanesborough for that purpose, he might depend on it, that they would be rescued — A noble resolution, worthy of every Englishman, and all who have the principles of a free government interwoven in the constitution of their minds.” — “ This resolution of the said Warren and others then together was, soon after the said sixth of November, communicated to several others of the inhabitants of Lanesborough, who, on consideration of the state of the province & country, judged the resolution reasonable & proper, joined therein, and agreed to abide by it.” Afterwards, “ at a raising in the said Lanesborough, when the greatest part of the men of that town were assembled, it was proposed to a considerable number of them, that all the inhabitants should join together, and stand by each other in preventing the officers from arresting and imprisoning any one of the town for debt, so long as the then present state of things, as to proceedings in law, should continue — several of the company to whom the proposition was then made expressed their approbation thereof — none of them objected to it. — In the evening, the company went to the tavern,” where the same officer, aided by a posse, endeavored to execute a writ against one Franklin, then present,— a scuffle ensued, and the officer and posse were driven off. “ The evidence that there was at the trial, of this previous confederacy, and that Warren with the other persons charged acted pursuant to such consederacy in the rescue of Franklin, was what the attorney-general specially relied on in arguing the case, to show it was a riot, and to confute my hypothesis of its being but a sudden trespass and affray; and two of the Justices, viz., Judge Cuihing and Judge Oliver, in delivering the case to the jury, specially osbserved and insisted upon it, that it was plain from the evidence that the assault,” &c., “ was committed in consequence and pursuance of the previous agreement and consederacy above mentioned.” The Chief Justice did not give his opinion upon the circumstances in the evidence which shewed it to be in execution of a previous consederacy, but, for reasons best known to himself, chose to make a different state of the case, which indeed was ingenious enough, but not altogether so pertinent and proper, because it was (as I humbly conceive) short of the evidence.— It is to be observed that the presentment charged the defendants with a riot, and the Court supposed the only doubt of the jury would be, whether the aforesaid safts, as they appeared in evidence, contituted a riot; and therein the Court supposed it was proper the jury should be determined by their opinion, and therefore particularly informed the Jury it was clearly the opinion of the Court that the facts proved constituted a riot, and that therefore the jury, in their opinion, could have no difficulty in finding Warren guilty according to the presentment.” The jury were charged with the case at night. The next morning, “ either before they delivered their verdict, or before sentence,” the prisoner’s counsel “ did suggess to the Chief Justice that it was clear from Hawkins’ pleas of the Crown, 1st Book, Chapter 65, Sect. 6, which session I turned to and he read, that, according to the evidence, the crime which the defendant had been guilty (if of any), was High Treason ; to which the Chief Justice replied, he was well apprized of what Hawkins said, and that he knew, if an assembly of men, combined for the purpose, should by force oppose the execution of one single statute, they would be guilty of High Treafon, which most certainly is in general true, found doctrine and clear law. 3 Inft. 9-10 — 5 Bacon’s Abr. 117 — Hawk. P. C. ubi supra — The fame in Burn’s Justice.”

Nevertheless, the prisoner was convicted of a riot, and fined three pounds. In the article from which we quote, Major Hawley argues with great force that the prisoner was either guilty of High Treason, or, owing to the state of nature to which the closing the courts had reduced society, of no crime at all,—judged merely by the light of reason.— But” (he says)“ I think that the punishing him for a riot cannot be justified upon any principle or hypothesis ; for it plainly appears, that his conduct was either innocent and justifiable, or that he was guilty of the highest crime, viz., High ’Treason : And if it appeared to the court the King’s counsel, that his crime was High Treason, which, I think, must have been the case on their principles, would it not have been more becoming the character of the firm and intrepid judge, to have advised that he should have been dismissed from the presentment of a riot, and charged anew, and brought to trial for his true offence, than without any intimation of his Majesty’s pleasure, to have proceeded to convict him of a riot, and fine him in the sum of three pounds.”

This article by Major Hawley was in reply to what he conceived to have been a misstatement of the facts, by a writer signing himself “ Philanthrop,” who habitually wrote in support of the government. See 3 Hutch. Hist. Mass. 164, 173.

* Vid. ante, p 234.

† Bofton Gazette, April 27, 1767. (¹)

1 (1) This paper contains a long political article on the then approaching eleition of Reprefentatives, ftgned “ Freeborn American.” The palfage alluded to is as follows:

“ It is a do&rine lately advanced by an executive J—ge in a public “ affembly, and is manifeflly agreeable to liberty and I4W, that a legijlator '■‘■and. judge in the fame perfon are incompatible with that freedom ⅜1 in- “ dependence necejfary to an impartial adminiftration of government; “and yet this very J—ge for a long time was eleíted a legiilator, and “ ferved as fuch.”

(2) See note at the end of the charge.