The American herald of liberty — Exeter, N.H., 1793-06-25 00:00:00, page 1

Judge Wilson's
CHARG E, . ;
Delivered to the Grand "Jury, at the Commencement of
the late session of the Circuit Court in Boficn.
-Gentlemen of the Grand Jury,
BY all our researches concerning the legitimate or
igin of civil society and government, we are ne
ceflarily led, at last, to the view and consideration
of what has been emphatically ftiied, the Social
Contract. This contract, when minutely analyf
rd, is foundtb be an afftmblage of agreements, equal
in number td the number of individuals who form
the society. To each of these agreements a (ingle in
dividual is ohe party ; ^tid all the other-individuals
nf the focietvare the other party. The Latter party
are called tKe People. The former party I ihall in
this address denominate the Citizen. I know that
the term citizen is often applied to < one of
the more nnmer4ui partyi But you will easily per
ceive, that the fame p^rfon may, at different times,
aft or be viewed in different characters. Besides,
the expreflion is frequently employed ajfo in the
sense in which I now "fe it. “ Generally (peak
ing,” fays the great po. Teal authority Aristo
tls, ‘‘a citizen is one partaking equally of pow
er, and of fubordinatiori. ” .
When d man alls as one of tlic numerous party to
the agreements, of which I have taken notice, it is
his right according to the tenor of his agreements,
to govern —he is one of the People : When he afts
is a single party to that' agreement which he has
made withall the other members of the society, itis
hisifaty according to the tenor of his agreement, to
obey —he is a single citizen.
Os this agreement, indeed, it is impossible to as-
Cvrtain all the articles. From the most obvious de
duftion of reafpn, however, one article may, beyond
all possibility of doiibt, be fpecifieri. This article
of prime importance, is—that to the public will of
the society the private will of every aflociated mem
ber mull, in matters refuelling the social union, be
subordinate and submissive.
The public will of the society is declared by the Ittws
Obedience therefore, civil obedience —Obedience
to the laws ahd trAhe administration of the laws —■
this is adillinguifhinjL feature in the countenance of a
citizen whefi he is seen frdm this point of view.
That men Ought to be governed, seems to have
been agreed oti alt hands ; the reafop is, that without
government} men could never attain any high or
, permanent fhafe of perfection or happiness. But
the question has been—By whom should they be gov^
verned ? and this has been -a question by reason of
two others—by whom can they be governed? Art
they capable of governing themselves ?
i To this Jail question, Mr. Burke, irt the spirit of
his late creed, has answered in the negative, “ soci
ety” fays he “ requires not only that the paSions of
individual' should be fubjefted, but that even in the
mass and body, as well as in the individuals, the fti
clinations of men ftiould frequently be thwarted,
their will controuled, and their pallions brought in
to fubjeUkip. T is can only be done by a row e r
OUT OF.TftEMSELVES.
This negative answer has been, from .time imme
morial, the.ftremg hold of tyranny. And if this ne
gative answer be the true one ; the strong hold of
tyranny is, irt fall impregnable to all the artillery of
freedom, . If men ftiould be governed ; and if they
Cannot govern, tliemjelves ; what must the consequence
be ? They should be governed by or he r masters.
An opinion, however, has, for some time, been
entertained, that the question, which I have last
mentioned may receive an answer in the affirmative.
Men it has been thought, are capable of governing
themselves. • ' '
In the United-States this opinion which hereto
fore rested folcly or chiefly on theory, has lately been
put in a train of fair practical experiment. —That
this experiment, to human happiness so interesting,
may be crowned with abundant and glorious fuc
eefs, is of aB things in this world,the consummation
most devoutly to be w.ifhed. ,
But to its glorious and abundant, success, the obe
• -dieuce of the citizens is of a necessity, indiipenfible
and supreme; . < , t : =.. >
The queftionwfcich lias been proposed—the question
in the negative answer of which tyranny has triumph
ed so long and so generally—the question concern
ing which PhilofopheiS; and Patriots have indulged,
and have been pleased with indulging a contrary
lentiment —the question, which i^ the United States
is now put upon an experiment—this important
question is—not merely nor principally are men
canable of governing —of this even tyrants will admit
the affirmative ; and will point to themselves as the
living proofs of its truth. But the question is, are
men Capable of governing themselves ! In other
words—are they qualified and are they difpbfed to be
their cum matters ? For a moral, as well as intellec
tual capability is involved in the question. . In still
other words— are they qualified, and are they dis
posed to obey themselves ? For to government, the
correlative.inseparable is obedience. Io think, to
speak, and to act as if the former may be exercised ;
and at the fame time, the latter may not be performed,
is to think',to speak, and to ad in a manner, the most
contradidorv and absurd. , .
By a ftrid and conclusive deduction it might be
proved, if this were a proper occafipn for , proving,
that, on the true principles^.freedom, man is the
only human power, by. whom he himfelf can b^
hound. It rec-wires but a small variation of phrase,
and none of fentiinent,- to fay, that on the tiue prin
ciples of freedom, rpan is the only human power,
by whom he hirtVfelf can be governed. ;
Are we made-io waywardly, that what in pnnc'i^
pie is true and nght, mutt in practice, be fafe and
Wrong P Surply not. . . , . ..
i ft. Is it deftrudive to the security of man to be
governed by a law ? What can be a (puree of great
er security, thzn to’ he governed by a law made by
himfelf and by others, yHth whom Ke participates a
general identity of intefetfs, and a perfed equality
of duties, and of rights. .
ad. I? it .confident with the freedom of man to
perform the. fe’rvice of obedience to a law thus made ?
Such a service bears, we think, the nearest resemb
lance to th,at service, which -with a propriety, truly
striking - .and strong, is denominated —ferfecT
f it beneath the dignity of man to be fubjed
Tke Supreme of Bcifg ! hm himseli
worked ’ Abt without a rule.
Volume VII.] -
tbe Amcricaii Herald of Liberty.
E X E t E R (New-Hdmpjhire) Printed and Published by Henry Ranlet, in Main-Street, at fix jhilllngs and eight pence per annum.
Among the Romans, too, many of those laws
were borrowed from the Legislator of Athens.
Any one of the citizens was permitted to prosecute
A public offence.
With all our prediliClion, however, for those ad
mired Republicks, and for the fpiritby which they
were animated, we must admit that these regula
tions, thofigh founded on a refined and flattering
Theory, were infall productive of mifcliiefs, very
dangerous, yet of very opposite kinds. So true it
is, that to the perfection of the bell system in fpecu
lation^ sage experience is the needed auxiliary.
Prosecutions were, on some occasions, undertak
en from motives of malice, of rancour or revenge.
On other occasions, a friend, a dependant, perhaps
confederate of the criminal, officioufly engaged to
prosecute him, with a view to ensure his impunity.
Os this last we have a very remarkable instance
in the case of the infamous Ver res, infamous as he
was, he had partizans ready to palliate or disguise
his crimes. To accomplilh this, a collusive prose
cution was the most probable, and the most plausi
ble expedient. By his minion Cacilius, such a pro
secution was accordingly attempted ; and before
CiCEROCouId .pYfint the thunder of his eloquence
direftly against the principal plunderer, he was ob
liged to remove, from the line of its direction, the
associate in the plunderer,*
There was a time fayS Beccaria, when the
crimes of the fubjefts were the inheritance of the
Prince, at luch a time it probably was that the juge
himfelf became the prosecutor. In several of the
feudal nations, this praflice, grossly improper as it
was, certainly took place.
In many countries, an advocate or attorney gene
ral is assigned to commence and to manage profecu^
tions on behalf of the sovereign or the public ; In
this class may be fanged informations ex officio,
which are fa frequently, and which at some pmes,'
have been lo opprelfively preferred By the attorney
general of England., But among all the methods,
which human sagacity has yet discovered for origi
nating the prosecution of crimes, the institution of
grand juries js entitled to a tranfeendant pre-emi
nence. It avoids on the one hanil, partiality and.
collusion. It avoids on thfc other hand, hatred and
malice. In its uniform and undeviating course, it
is impelled by diligence, and guided by candour.
Os this institution the rife and the rudiments are
hid in high'antiquity. Its firft mode of proceeding^
•were probably artless and defeftive, for we can
trace them to a state far inferior to their present de
gree of improvement. '
Among the Saxc/ns, as we are informed by the
very.learned Selden, therewas away found out’,
to puniffi offences by indiftments. But there wad
a difference between former indiflments and those
irt the present days. It cohfifted in this, that the
artcient indictments were in the name of one man ;
but thole of the latter fort in the,name of the ju
ry. Time and experience, continues he, refined this
way of triaf into a more excellent condition.
In the reign of Henry the third, the pre
sentment of offences was made by a jury of twelve,
returned for every hundred in the county. Butin
the time of Edward the third, another improve
ment was introduced into the institution. Beside
the; jury for every hundred, the flieriff returned a
jury for the county. This jury for the whole coun
ty,was termed the grand jury,
We may observe here the expanding and accom
modating genius of the common law, and how ea
sily and aptly its maxims and rules may, in new si
tuations and emergencies, be transposed from a
frailer to a Target - scale of things. Tn England,
the Grand fury, whose .cognizanqp was prginally.
confined to a hundred ora townfkip, Was afterwards
empowered to exercise its authority over a whole
County. In the United States, the Grand. Jury
whose cognifance has hitherto,, beer confined to a
county, is now empowered to exercise it? authority/
over a whole State. For-to a whole State, a diflrifi
is, in national jurisprudence generally commcnfu- -
rate. ■ . 4 » . ■•. ■ -
This expanding, and.', aecqmmppating gwnus of
the common law, applied' farther to the situation
— —— j —
* This was theoctnpam on which the btatAif^l Ortttbh
de diviationo was prontunced.
That they may be true and faithful to themfelve#,
is the allegiance, which a legitimate Republic re
quires from fier citizens : To themselves they can
not be true bnd faithful, Unless they obey as well «s
make the laws—unless In the terms, in which a cit
izen has been defined, they partake of fubordination
as well as power.
But unfortunately, this allegiarice, rational and
dignified though it be, is hot always observed. In
fome,.there is a disposition to violate it habitually.
With regard to all, there is a danger that it will be
violated at some times. On him, who vi-plates it,
it would be imprudent to rely altogether for a re
dress of the injury occafionea by the violation. Hence
in evei;y well regulated government, the propriety
and the importance of iuftitUting courts of justice.
In foifte instances, the injury, wflich results from
violating the Law, is in its confeguences, remote as
well as immediate, confined to one individual, or to
a few individuals. In other instances, itsconfequen
ces, remote or immediate, affeft the community al
so. So far as a single individual, or a few indivi
duals are injured, application to the courts of jus
tice for tedrefs may fafely be entrusted to private
interest, or private resentment. So far as the injury
to an individual affects the community, other mea?
fures for ensuring redress or punilhments are found
to be requisite.
’ In Athens, indeed, when a crime was commit
ted against the Commonwealth, it was left to tvery
citizert to ilep forward as a prosecutor. For an in
jury offered to the society was considered as personal
to each of its members. This provision reflected
the luftre of Solon’s, fpendid policy, the leading
maxim of which was, that true self love and so
cial are the same. He was asked—How may -in
justice be excluded from human society ? “By
teaching all to feel the injuries done to tach,” was
his celebrated answer. .
In a moral view, fclf-government increases in
stead of imparing the security, the liberty and digni
ty of the man : In a political view, felf-govemment
increases instead of imparing the security, the liberty
and the dignity of the citizen.
Attend now to the result of the whole. Tn a gov
ernment, free and well cofiftitutedj the firftduty of
the citizen is—obedience to the Laws. .
S- • ■
TUESDAY, June 25, 1793.
OF the conditions of human life condemn
ned to prove tht ficklenefs of power Sc
the changes of opinion. Royalty is eonfpicu
ous tor misfortune commensurate with its emi
nence. The personal qualities of the man in
fluence but little ; his will is frequently a
facrihce <0 inevitable neceflity ; he gives a
fan&ion co measures adverle to bis feelings ;
and his name is venerated for good, and ex
ecrated for evil, of which he neither concei
ved the design, nor promoted the execution.
There is in man a depravity which makes
him yield as readily to formidable tyranny,
as it induces him to oppole benevolent weak
ness : He is led on by power ; and a fucccfs
ful usurper soon reconciles him to servility of
obedience. .?■ ,
Such are the reflections which force them
selves upon.the mind of him who confiders
the life and miserable end of Louis XVI. Os
the events which have conspired to drive
him to his fate, men are fufiiciently inform
ed to preclude any necessity of pur alluding.
to them. They have seen tHe excefies of a
divine principle generate enthusiasm thanked
by the most infernal fury ; they have beheld
the sacred flame of.liberty conflagrating its
best props, and frenzy demolishing the sane
devoted to freedom.
Befoie the energies of general delirium no
single wisdom can (land : L®t it not therefore
be imjMited to weakness in Louis, that be has
fallen, where perhaps none could have flood
firm. If he had been less just, he might have
been less unfortunate.
Much is fa id ofthe education of princes ;
they are a flier ted to be surrounded by fyeo
phants: And the firft axiom they learn is,
that the condition of a sovereign is for ever
to be fiiendlefs ; his froiles or his frowns ei
ther generate ingratitude, or provoke hatred.
The present prince if he was fufiiciently ar
med to distrust all parties, at least strove
not to excite disgust in any. Hit reign be
fiJre the revoludon was marked by no repel-
“IntheKEW World,” faysone <?f the fineft
writers in Britain —“ in the new World, nature
Teems to have carried on her operations with a bold
er hand, and to have diftingqifhed the features of
the country by a peculiar magnificence.”
, We imitate, the operations of nature ; and the
features of our policy, like those of our country, are
as is fit, diftiaguiflied by magnificence peculiarly
splendid, by their exaftnefs and true proportions,
as well as by their dignity, and splendid magnifi
cence—the features of our policy are eminently dif
tiuguilhed. Extended as the power of our Grand.
-Juries is in those refpe&s, in which it ought to be
extenfive^ it is restrained most liritlly in those re
fpeds, in which a ftri£l restraint is proper and salu
tary. A whole Diftriil or Commonwealth is com
prehended' within their fphere'of enquiry, and pre
fentmtnts : But to the funftions of enquiry and pre
sentments their whole cognifance is confined.
To fotm, and to maintain a just separation be
tween the legislative, the executive, and the judicial
powers of a state, is a maxim in government dis
covered tut lately, and but seldom observed. To
form and to maintain a just separation between the
different branches of the judicial authority is an im
provement in jurisprudence still less known or prac
tifed. In the jurisprudence of the United States,
however, this high improvement is most diftinftly
marked, and most leduloutty carried into its full ef
fefl. To oiir Grand Juries is given most liberally
the power of accusation ; But thte person accufcd they
can neither arrest nor try, nor condemn nor punish.
Inall thefefun&ions justice employs her other minify
ers ; and to those other Ministers too, assigns their
appropriate departments. By an officer, or a citizen
empowered by law, the culprit is airefted ; by a
traverse fury he is tried ; by thr* fudges, sentence
is patted upon him ; by the Marftial that sentence is
executed. . • . '
Happy country ! did you but know your own
happiness ! Must that happiness be known and ap
preciated only by fad experience of the reverie ?—
An event lo deplorable, we hope, is upneceffary.—.
A diJiantprofped of this reverse will, we trust, fuf
fice. Let us contemplate a body*—a permanent bo
dy—a body invested with a combination of all the
political power, and poifeffed of the military force
of the State—a body which can always make a crime
of the most innocent action, can annex any degree of
pimiffiment to what it calls a crime, can pronounce
ientehce, and of that sentence can enforce the exe
cutioh. Contemplate this body ! you exclaim —>
Surely no such body can possibly exist ; or if by
possibility it exists, it exists only in some monarchy,
or aristocracy, so violently despotic as to be a fit
objeft neither of example nor. of caution to a demo
cratic government, For-the reality of its existence.
Gentlemen, I have no occasion to appeal to the mo
narchy of the PoßTS.prto the arijlocracy oFVenice.
I appeal to the Repub’ick of Geneva, Os the Sen
ate of Geneva, the foregoing description is faith
fully taken from an account of its powers, publilh
ed by an enlightened citizen of that Republic. +
By comparison, laws and institutions as well aS
languages, are best ftudjed and illustrated. The ex
cellencies of our juridicial system, which appear
in the striking contrail exhibited to your view, lug-*
geft matter for many practical and profitable reflec
tions.
But these reflelliorts I cannot now trace.
and the extent of the United States, might re
ceive a thousand beautiful and interesting illuftr^
tions.
* 15r. Ivernois’s Confl. of Geneva,.
+ Dr. Ivernois’s Confl. of Geneva.
CHARACTER of LOUIS XFI.
From a London Paper.
reproach. »
But the nation which profligacy had im*
poverilhed, and which tyranny had stained
by oppreflions, whose very remembrance,not
experience, could agitate the whole empire
to its centre,was in a state that defied the re
sources of finance ; it became neceflary to
call the people together. Opinions favour
able to freedom hadfecredy been gaining on
the multitude. Thole who had served in
America could not avoid drawing compari
sons between the mild condition they bad
aflifted her to spurn, and the intolerable sla
very they perluaded themselves to fuflain.
From furnifliing a remedy to the paralyfisof
the state, they began to revolve hew they
might emancipate the people. They were
in the presence of a monarch who disdained
the exercise of powers formerly exerted to
bend the obdurate, and overpower the refrac
tory —he yielded to wishes. that he knew to
be just, and which he trusted would be pros
perous.
In the generous spirit of concession he dif
regarded.or was not fufiiciently aware of the
proper bounds to his authority* He fuffer.
ed infradion, until check became fruitlefs
He yielded to enthuflafm which he could not
restrain, and trusted to Time to remedy con
vulfions-of overheated Zeal. He reasoned
rightly a» a Philosopher, but wrongly as a
Politician. He adverted not to the store of
fuel that would be piled to keep the blaze of
Revolution up. He could not anticipate
the crown of artifices by which designing
men continually inflamed; congregated and
directed the People.. ; The Baftile, " thia
bode of broken hearts,” was in being, and
the reproaches of his fubjefts, undeservedly,,
were hurled upon the living sovereign, or
ftnote him by a fort of recoil from the dead.
What they should have ascribed to the bad
policy of times past, they a ttr *bo te d to the
vices of the throne,and deeming the situation
prolifick only of evil, they began to hate the
order of beings stiled Kings, as the pests of
the earth. ?
Then they, who, profligate and mean,had
solicited in vain of Kings the means of pro
digality, became avowedly enemies ; every
anecdote which Regal Biography could offord
bf crime or lolly,was felelted with avidity—
“ Sat in aNott BoOk fear^dand conn'd by rote,
ft To call idto their teeib.** {
From Monarchy, thus .attempted to be
rendered hateful, the People were persuaded
no good ever could or ever did flow—the
Royal Power bcame extin&, his troops were,
infelted, the great mass of his People were
alienated from him. The result of all has
been his death. A survey of the characters
who surrounded him, as they developed
themselves by their aClior.s and speeches,
had long since taught eyery thinking man ta
anticipate the Royal Massacre. _
A remark has been made above, that it
Louis XVL had been less just he might have
been less unfortunate—lt is confirmed by
every view of the fubjelt.—lf to any party
he bad given himfelf up, he might have liv
ed the Nominal Ruler of a land governed by
a Faltion. -
The unhappy X>o^is was, like a Prince
whose reign is honoured by the happy left of
popular veneration,a model of private virtue.
Noone inordinate excels can be recorded of
him : Like our own Charles, he might con
jure his offspring to fay to the wife of his bo
fOm, that even in thought lie Had; never
wronged her.” Religion, itis well known,
info fed a fortitude into .his breast, that all
the insolence of little villany could not dis
compose. His deportment upon his trial
was dignified and firm. Korhis family,, aa
a man, it became him to reel ; but offering
a Martyrdom', he expired as a Martyr hw
thoughts were beyond himfelf.
he pradlifed, he led to the throne the then
happy pofTeflbr.of every female grace that
might beam from the son o.f beauty, the be
nign radiance that makes lovely what it
cheers, if rational hopes of happiness result
from good conduit, those hopes, in their
plenitude were his. He offered to the vir.
tuous an example, and to the vicious a living
With all the claims of youthful accom?
plifhment, one of the handsomest men of his
age, and certainly no mean proficient iii
knowledge, oiher than what a court usually
supplies, Lonis XVI. found* himfelf upon a
throne, which had been alike disgraced by
the insulting pomp of ambition, and the dif
<gufti»»g artifices of intrigue. ,Where the
courtezans of his ancestors had planted the
pqifonous weeds of licentioufoefs, he was to
tread with a mind eager after purity, an 4
hoping by .virtue to become adored. That
it might be no repulsive auHere purity which
Jing haughtinefsj nor inflexible pertinacity ;
appearing always to mean well, he welcom.
ed alike the counsels that were conducive
to his objed, come they from whom they
might.
[Numb. 51