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"A friend to Juries” to Samuel Jordan Cambell Virginia Gazette, and General Advertiser June 30, 1797, Albermarle County, Virginia
Sir,
ADMIRING your attachment to the cause of liberty as I do, I cannot but lament, that the means you have adopted for its promotion, are not as promising of success, as both the object and intention deserve. That your intentions are pure, I never had a doubt. But unfortunately, those who are the greatest advocates for the freedom and exercise of opinion themselves, are of late, the greatest enemies, in reality, to that freedom of opinion in others, when it happens to differ from their own. Thus while you are supporting the freedom of opinion as it applies to yourself, you are endeavouring to sap the foundation of that same freedom in others; and that too is the most dangerous part to the community at large.
Your right, as an individual, to entertain whatever sentiment your judgment may dictate to you to be right, is not more valuable to yourself, than the maintenance of your independence, as a representative, in divulging those sentiments, is of consequence to your fellow-citizens at large. But neither the freedom of individual thought, nor the independence of representative expression, can be more valuable to either, than the protection and preservation of the judiciary. On whose freedom and independence, not only those, but all our other rights depend.
How far the judges are warranted to go, or what is the exact rule by which they ought to be governed in their charges, I will not undertake to say; nor do I believe it can be possibly shewn. That it is as much their duty however, to recommend temperance and good order in society, as it is to point out the actual offences against the laws, I have not the smallest doubt. How they are to do either, and yet avoid political topics, is what you and a few other late writers, who are entitled to all the honor of the discovery, can best point out. In order to have fixed the exact point to which the judges have a right to go in their charges to grand juries, you should have told us by what rule we might distinguish a political from a legal charge. The actual offences against the laws, you admit, are properly within their reach. The punishment of these offences, and the means of arriving at that punishment, I had ever thought, were a part of the political oeconomy of the state. The judiciary itself is a part of the government of America, recognized by the Constitution, which is the written and only guide to all the different departments of that government. That the principles of that government can be too well understood, or those who are appointed to administer it, to whatever branch they may belong, can too often point out the reciprocal duties of the people and the government toward each other, is, I confess, what I never expected to hear from as arm and admirer of free government as yourself. Your own letters, as a member of one of the branches of that government, I make no doubt, were intended to explain to your constituents what you conceived to be the true doctrines of political happiness for them to embrace. In this I have as little doubt, you conceived you were discharging your duty. Why then may the judge, who is a member of another branch of the government, not explain to the grand-jury, what he conceives to be the obligation of the citizen to the government, and the government to the citizen? This I take it was the judge’s object in the observations he made to the grand-jury at Richmond, of which you complain so much.
But your charge against the judge is far from being the most serious part of your complaint. In calling upon the indignation of the people to support you in the freedom of your opinions, you have made a direct attack on the freedom of the people themselves. Who, Sir, were the jury who made the presentment? A part of the free and independent people of America. Who had a right to controul their opinons? Not a power upon this earth certainly. As individuals they had as much right to enjoy their opinions as any other citizens. By becoming jurors they could not be abridged in those privileges. But if the offence was not punishable in any other way than by a naked presentment, you conclude, that the judge ought to have silenced the presentment. This, Sir, is an error, I am sure, which proceeded from your not being much accustomed to courts and juries, and not a wilful mistatement to deceive your countrymen. It is well known to every one that least conversant in these things, that there are offences which cannot be and never are punished in any other way. And it is obvious to any one who will reflect a moment on the nature of the punishment, that it is beyond the reach of any power of controul, short of that of the jurors themselves. It is the punishment of censure, which consists in the bare publication of a disapprobation of opinion. That publication must be made before the judge or any one else, besides the jurors can know the contents of the presentment. If then the law had given the judge the power of erasing the presentment, it must have given him the powers of Lethe [1. In Greek mythology, a river in Hades whose water caused forgetfulness in those who drank it. OED.] also, to have extended the benefit to a suspension of the punishment. But the judge had neither of those powers; and the jury might have presented his own charge, and he must, like yourself, have submitted to the punishment.
In the liberty of their opinions and the subject of their presentments, juries have no other limitation than the observance of their oath. They are sworn to present every irregular and disorderly, as well as illegal and criminal act, that comes within their knowledge. How then, if they conceived your letters were calculated to produce disorders in the society by inflaming the people, were they to avoid presenting them, and yet answer that neglect to their own consciences and the community whose peace and welfare they were thus bound to protect? Here, and here only then, they differed in their quality as jurors from their other quality as private citizens. The one has a right to conceal his opinions; the other is bound to declare them to his country. This you say you were bound to do from similar obligations as a member of Congress. You and the jury then stand upon precisely the same ground in point of official duty; as well as in the right to enjoy your opinions as private citizens. But in some other respects, the jury will have the advantage, I should suppose, in the appeal that has been made to the public in the case.
This attack which has been made upon juries, who have ever been considered the greatest and best guardians of all our rights, calls for the most serious and attentive consideration of the people! Can there possibly be a more alarming attempt to overawe the freedom of opinion? If members of our Federal Legislature, will, at this early period of their existence, attempt to abridge this sacred institution in its rights, to serve their own ambtiouis or party views, what may we expect will be their regard for the people’s rights at a more advnaced period? - In England indeed the judges have sometimes attempted to prescribe the duty of juries. But never, in that corrupt country even, have the representatives of the people yet called upon the people themselves to direct that their conduct should be held sacred and above enquiry. Reflect, Sir, but a moment, on the consequences of such a precedent, and your own intentions in making the appeal, I am sure, will be at variance immediately with its obvious tendency!
I know the zeal and openess of your disposition. May I not be permitted then, to believe, that your name and the occasion, have been made use of by men, more designing than yourself, to answer their political views? I know not those suspected of being the substantial authors of the design. But if I may judge of the sentiments it is meant to exalt above the enquiry and animadversions of the people, from some of the literary labours of certain members in Congress, I think, I may venture to predict, without assuming to myself more sagacity than belongs to every citizen who pretends to look at all into his future prospects of political happiness, that the preservation of the independence of juries will be of infinitely more consequence toward the support of real liberties of our country, than all the light that will ever be reflected from their letters; and, that if any are to be abridged in the freedom of opinions, by the indignation of the people, it had, at least, as well be, a few of those letter-writing politicians in Congress, as our juries, who are, in fact, the people themselves, in original, and other their secondary or representative shape.
But, Sir neither is necessary. You and those gentlemen too, have a right to think and write for one-another whatever you please; and the people, either in their individual or collective capacities, have a right to judge of your sentiments. Whether this inquest of the people over the body of this state have judged right or wrong, is not for me or any one else but themselves to determine. Perhaps if I had been one of them, my opinion might have differed from those who made the presentment, in the means of correcting the evil it was meant to remedy. But if a majority of the jurors thought the presentment necessary, as I make no doubt they did, there can be no question about their right to make it.
Give me leave to set you right in another particular respecting the jury, which strikes at once, at the reputation of the court, the marshal, and the jury, who are all too honest, I am sure to merit such a censure. You insinuate that the jury was packed, and that of foreigners, to answer the particular purpose of supporting certain party politics. This, Sir, was an ungenerous insinuation to be made at random; and (as it only could have been made from a sight of the panel, at such a distance from the spot where they were impannelled) I am sure was done without giving yourself time to reflect, that there are many people often of the same name. I have enquired into the actual persons of the jurors, and know them all except two. These might have been foreigners for ought I know. The rest were native Americans, taken from very different parts of the state, as they ought to have been. And one of them, who, I will venture to presume, you concluded from the name, was an inhabitant of Richmond, was a citizen of Campbell, or Bedford county, and opposed to the presentment, I will hazard and assertion which, I doubt not [you] will find to be correct on further examina[tion.]
[Permit me?] now to close those observations, which have been designedly delayed until you returned from Congress, with assuring you, that I am personally, your friend. Many considerations combined to make me so. And it has often been a subject of regret, that the difference of opinion in politics, had separated so far from me in his public pursuits, a man, who had been among my most early and intimate associates in private life: who, belive me, upon every other ground, possesses still the affections of - a real constituent, and -
A FRIEND TO JURIES.
Albermarle, June 30, ‘97. 6