Charge to the Grand Jury by the Chief Justice

1 Super. Ct. Jud. 232

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1767
• Status: Published

Opinion

BEFORE I say Anything to the Grand Jury, it is highly proper that I should take Notice of the Death of One of the Judges of this Court. I have no Talent for it, and am an Enemy to traducing and vilifying the Characters of Men, when alive, and flattering them when dead. Yet Justice to Judge Russell obliges me to sey Something of his Death. Every one who knew him in private Life, must acknowledge him a most amiable Man. I scarce ever knew his Equal. He might be truly characterized as a Lover of Mankind, and no higher Character can, I think, be given of any One. Nothing more need be said to recommend him, especially at this Time.

The several Posts of Honour which he bore, he

sustained with. Dignity. As a Legislator, I had an Opportunity to observe his Conduct, both as a Member of the Council and House of Representatives: And I know that he ever engaged on that Side which had Truth and Justice for its Support. As a Judge of the Admiralty, his Conduct was most unexceptionable: And I believe none of his Decrees, but met with universal Approbation, except at Times, when Party-spirit and Animosities ran high, and made it a Thing impossible, for any Judge, in any Department, to give Satisfaction. His Conduct in this Court — I appeal to the Gentlemen of the Bar — was such as pronounced him the Judge, and a Man of strict Integrity. Although we all have some Byass, — ’tis impossible for human Nature to be without, —yet if he had any Byafs, it was ever in Favour of Virtue.

Juftice has been done this worthy Character, already, in publick, in an unexceptionable and elegant Manner,

(1) The best Use that we can make, is to follow his Path and imitate his Virtues; elpecially, as we all must shortly follow him to give our Account to the Judge of us all. — Now,

Gentlemen of the Grand Jury:

You are sent here from your several Towns, upon Business of great Importance to your Country. I will not go so largely and particularly into the Duty of Grand Juries in general, as many of you have been on Juries before, and most of you have been conversant with the Duty of your Office.

There is one general Observation I would make; that the End of Government is the Happiness of every Individual, so far as is consistent with the Good of the Whole. To attain this End is impossible without Laws, and their due Execution. ’Tis necessary that Laws should be established, else Judges and Juries must go according to their Reason, that is, their Will; and this is in the strictcest Sense arbitrary. On this Reason, I take to be grounded that well-known Maxim, that the Judge should never be the Legislator: Because, then, the Will of the Judge would be the Law; and this tends directly to a State of Slavery. The Rules and Orders of a State muft be known, and must be certain, that People may know how to act; or else they are equally uncertain, as if the Law depended upon the arbitrary Opinion of Another.

Let the Body of Laws be ever so good,— if they are not executed, ’tis worse than a State of Nature, because we guard ourselves in a State of Nature, and therefore are more secure than in a Society, where we depend on the Laws for our Protection, which are not put in Force.

There has been a Failure of Law amongst us, which has been very detrimental. Doubts and Differences in Opinion have been, which has caused a great Deal of Confusion. ’Tis to be hoped we are returning again to good Order. I wish the Laws to be put in due Execution for the publick Good, and am as much for the Liberties of the People, as any Man, so far as is consistent with the Welfare of the Community.

In this Country we have always been happy in a good Set of Laws. The principal Crown-Law of this Province is grounded on our provincial Laws ; where these fail, the Common Law of England is the Rule. The Principle of the Crown-Law is, establishing Punishment, not according to the Degree of moral Evil in the Offence, but according as the Crime affeds the Peace of the Community.

There is a Difference between Peace, as used in the Common Acceptation of the Word, and Peace as it is used in a Law-sense. Offences which are much greater in their Nature, are punished in a much milder Manner, than Offences less heinous, which affect the publick Peace more.

I suppose there is no one whom Blasphemy does not strike with greater Horrour, than the Crime of Treason against the Prince; yet the latter is justly punished with Death, when the former is not, because it does not tend fo immediately to destroy the Happiness of the State. Many other Things I might instance in, but this is sufficient. The Principle that the Law goes upon, is, that the Supreme Being will avenge his own Wrongs. I don’t know a Nation in the World, that makes that Distinction between Murther and Manslaughter, which the English do. It was not made in this Country before the Charter; for our Forefathers founded their Laws upon the Law of Moses, which makes no such Distinction. This may properly be called the Benignity of the English Law.

(The Chief Justice then proceeded to charge the Grand Jury relative to those particular Crimes, which it was probable would come before them, and then continued as follows:)

I would now only add, Gentlemen, that you carefully observe the Oath of God which is upon you: It contains many good Rules for your Conduct, and lays you under the greatest; Obligations to discharge your Duty with Fidelity.

All Crimes you have, Cognizance of, from the highest to the lowest, though lesser Offences are commonly left to the Inspection of Justices of the Peace, and the Sessions. But, if they are negligent, it is your Duty to present all Offenders against the publick Peace, in the Common Acceptation of that Word.

I know that it is impossible for Men in any Society to be all of the same Mind. Doubts and Disagreements in Sentiment will arise; it is not only necessary, but useful; for by this Means, the Good of the Community is often attained, the most; salutary Plans of Government adapted, and the whole Business of the publick Weal better executed.

But, because we do not think alike, because we disagree in our several Opinions, let us not slander and traduce one another’s Characters. We might as well quarrell, and destroy Men for their different Looks, or Complexions. But to reproach and vilify each other in publick Print, is a Crime of a much higher Nature, and it is more mischievous Hill, when it is pointed against all in Authority. — Shall no one’s Character be safe, because he does not think as we would choose? — For my Part, I know no more dangerous Symptom in any State, than when its Rulers are slandered, and the Authority of those who govern, is despised and trampled upon.

I am sure I never promoted any such Spirit among us; and heartily do I wish, that I could help to reftore the Peace of this Community. But I doubt whether there is any Room to hope, at this Time, any Good from my Recommendation.

I have known the Time, when a Man could not more recommend himself than by promoting Peace, Harmony and good Order; And there have been Times, when a Man might obtain greater Applause in promoting the Contrary, and stirring up Contentions, Divisions, Animosities and Factions.

But I know that it has been said by our Great Lord and Saviour, that “ Blessed are the Peacemakers,” and if I might obtain His Approbation, I am not anxious for any other Events.

Massachusetts Gazette, January 15th, 1767.