which name Holt and other writers designate this class of libels ;) and I believe none has occurred since the publication of that work.

It would be useless to examine the arguments in support of decisions which are so obviously at variance with the freedom of the press as established in this country both in principle and practice. It cannot be necessary to enter into a labored discussion to prove that a prosecution against the editor of a newspaper for speaking with severity of the Emperor Paul or the First Consul, would not have been tolerated for a moment in any court in the United States. If, then, the very cases on which Judge Thacher relies, would not be considered of any weight here in cases precisely parallel, they surely afford but a feeble support for the conclusions which he draws from them.

It is contrary to the first and most obvious principles of criminal law, to punish a person under one jurisdiction for an offence committed against another. Yet Judge Thacher says that 'to publish a paper here, with the intent to send it to another State, to persuade one or more persons there to commit murder or treason, the law regards as a libel of peculiar atrocity, and no supposed freedom of the press will screen the author or publisher from the penal consequences of the deed.'

I have searched in vain to find out by what authority the opinion here expressed is supported. If, however, such a publication in Massachusetts would be regarded as a libel, it must be on account of its design and tendency to corrupt the morals of the people of Massachusetts. The design of sending it into another State, however criminal, would not affect the nature of the offence as it regards the law of Massachusetts. But even if the position taken by Judge Thacher is correct, the inference which he draws from it in regard to writings relating to slavery is scarcely supported. For unless a publication on this subject has a direct tendency to corrupt the morals of the people of Massachusetts, it cannot come within the principle which Judge Thacher lays down. Now I think it will hardly be pretended that the asserting of the right of slaves to their freedom, and their right to obtain their freedom by force, if they cannot get it otherwise, or any similar propositions which may have appeared in anti-slavery publications, whether these propositions be true or false, have any tendency to corrupt the morals of the people of Massachusetts. The libels against public morals, for which indictments have been maintained, have no resemblance whatever to discussions of this kind.

E.

Chief Justice Shaw's Charge to the Grand Jury. It will be seen by our abstract of legislation for Massachusetts, that the criminal jurisdiction in Massachusetts, is transferred to the Court of Common Pleas in the counties, other than that of Suffolk, where it has been for a long time invested in the Municipal Court. At the term of the Supreme Court, recently held in the county of Essex, being the last term of that Court, before the new law went into operation on the first of June, Mr. Chief Justice Shaw gave a charge to the Grand Jury which has been published. After some remarks upon the character of our government as being one of laws and not of men, the Chief Justice makes the following observations upon the nature, constitution, and purposes of Grand Juries, as a part of the judicial machinery.

'Coming from the various parts of the county, first designated by their townsmen, as persons well fitted by their capacity, integrity and personal worth of character, to discharge the important functions of jurors, and then for each particular service, designated by lot, without regard to sect or party, rank or condition, the Grand Jury may justly be regarded as a fair representation of the county, participating in all the interests and feelings of the people, and well acquainted with their condition and circumstances. They bring with them all the local knowledge and information, which are requisite to enable them to perform their important duties with efficiency, impartiality, and success.

The object of all criminal jurisprudence in a free government, is the preservation of the public peace, and the security of private rights, by the prompt and certain punishment of those who may violate the laws. Without this, the laws would be inoperative, if not indeed regarded with contempt. One of the most important advantages, therefore, to be expected from the institution of grand juries is, that it tends to the certain and speedy discovery and punishment of the guilty, and thus to an efficient administration of justice.

Selected from the various parts of the county, coming generally from amongst those of mature years, of active pursuits, who may be supposed to mix freely in society, and to be conversant with the transactions which occur in their respective vicinities, it is hardly to be imagined that an offence can be committed, especially of any magnitude, without coming to the knowledge of some one of them. This is sufficient to lead to inquiry; and with that diligent inquiry which they are bound to make, in the faithful and fearless performance of duty which may be reasonably expected of them, and with the ample means of inquiry placed

at their command by the law, it is scarcely possible that they should not come to a reasonably correct knowledge of the truth. If the supposed crime has been committed, and it is possible to discover and take the offender, the accusation of the Grand Jury in an orderly form, will lead to trial and punishment; or if the suspicion abroad is proved to be groundless, or the charge against any individual unjust, and is so declared by the refusal of the Grand Jury to find a bill, the apprehension and alarm of the community will subside, or the suspected individual be restored to the good reputation, which had been unjustly tarnished by injurious rumors.

'Another important advantage of the institution of grand juries, is, that it tends to an impartial and satisfactory administration of criminal justice. In a free and popular government it is of the utmost importance to the peace and harmony of society, not only that the administration of justice and the punishment of crimes should in fact be impartial, but that it should be so conducted as to inspire a general confidence, that it will and must be so. Το accomplish this, nothing could be better contrived than a selection of a body, considerably numerous, by lot, from amongst those, who previously and without regard to time, person, or occasion, have been selected from among their fellow-citizens, as persons deemed worthy of this high trust by their moral worth, and general respectability of character. And although under peculiar states of excitement, and in particular instances, in making this original selection, party spirit, or sectarian zeal may exert their influence, yet it can hardly be expected that this will happen so frequently or so extensively, as seriously to affect the character or influence the deliberations of Grand Juries. Should this ever occur, to an extent sufficient to weaken the confidence now reposed in their entire impartiality, and thus destroy or impair the utility of this noble institution, it would be an event, than which none should be more earnestly deprecated by every lover of impartial justice, and every friend of free government.

'Were the important function of accusation placed in the hands of any individual officer, however elevated, it would be difficult to avoid the suspicion of partiality or favoritism, a disposition to screen the guilty or persecute the innocent. But the Grand Jury, by the mode of its selection, by its numbers and character, and the temporary exercise of its powers, is placed beyond the reach or the suspicion of fear or favor, of being overawed by power or seduced by persuasion.

In the present condition of society indeed, in our country, there is little danger that the law will be set at defiance, or its due administration prevented by the power and influence of individu

als, however elevated in rank or wealth. Our danger rather lies in the opposite quarter, arising from our peculiar state of society; a danger, that the just and due execution of the laws may be disturbed or defeated by popular excitement, and the union of numbers, animated by a strong sense of common feeling and interest, and combined for the support of some common cause. It is the general tendency of society in our times, to combine men into bodies and associations, having some object of deep interest common to themselves, but distinct from those of the rest of the community. These they seek to promote by the union of numbers, by combined efforts to influence public opinion, by the press, by public addresses, by extended correspondence, and by all the means which may tend to advance the favorite object. It not unfrequently happens, that these objects are opposed by other bodies and associations, animated with equal zeal, and pursuing their purpose by similar means. Such is the powerful effect of sympathy among numbers, and such the ardor of the passions which it awakens that there is danger amidst these party conflicts, that the prejudices and partialities engendered by them, may reach and pollute the fountains of public justice. But whether this danger arise from the power of individuals, or from the union, zeal, and activity of numbers, it is unquestionably the province of the Grand Jury to guard their minds against contamination, faithfully to justify the confidence reposed in them, and to maintain, with firmness, sobriety, and strict impartiality, the absolute supremacy of the laws.

Another view, in which the impartiality and independence of the Grand Jury may be justly regarded as a source of confidence and security, is the protection which it affords the innocent against hasty, malicious, and groundless accusation. Under this salutary institution, no person can be accused or brought to trial, until at least twelve of his fellow-citizens, on a full examination of his case, upon legal evidence, shall on their oaths concur in declaring their belief in his guilt. The Grand Jury may consist of any number exceeding twelve and less than twenty-four. Entire unanimity is not required as in case of a jury for trials; but the concurrence of at least twelve, is necessary to the finding of a bill. In case there are twelve votes in favor of accusation, this is taken to be the act of the body, and it will be the duty of the Foreman to sign a bill of indictment, thus found, as their organ, and to give it authenticity and legal effect as their act, although his own opinion may happen to be against it.

As to the nature and amount of the evidence, which is suffi

cient to warrant a Grand Jury in finding an indictment, the rule is this, that it must be legal, prima facie evidence of guilt; that is, it must be of such a nature, that if it stood alone, uncontradicted and uncontrolled by any defensive matter, it would be sufficient to justify a conviction on trial.

'But the ultimate object of the institution of Grand Juries, and indeed of the enactment and administration of all laws for the punishment of offences, is, the preservation of the public peace, the peace of the Commonwealth. These are not unmeaning forms of words. Rightly understood, much, very much is meant by the public peace. It implies not only a state of tranquillity and repose, but the triumph of law and justice over all violence and fraud, and the security of personal and civil liberty against the usurpation of all lawless and ungoverned will. It implies, on the part of the citizen, a feeling of security in the enjoyment of all his personal and political, civil and social rights.

"These are among the dearest and most valuable objects, for which men unite in civil society, and are justly regarded as the ultimate aim of every well ordered community, and the attainment of which, the founders of our Commonwealth hoped to secure, by a government of laws. And I trust, gentlemen, that no stronger considerations need be presented to your minds, to impress you with a due sense of the dignity and responsibility of your office, and the importance of a faithful execution of the great powers confided to you by the laws, than to say, that they are wisely designed and admirably adapted to promote the discovery and punishment of guilt, the security of innocence, and the preservation of the public peace.'

The judge then comments upon the offences which subject the criminal to capital punishment in Massachusetts, viz. treason, misprision of treason, murder, rape, arson, burglary accompanied with force or committed under circumstances indicating a design to use force, and robbery.

On the subject of libel the judge remarks:

'As citizens of a free Government, we have all a deep interest in the liberty of the press. It opens to every mind a copious fountain of knowledge, and constitutes the great channel of intellectual communication. It is impossible to value so vast a privilege too highly. But in proportion to the greatness of this blessing, is the duty and importance of restraining its excesses, and guarding against its abuse. Perhaps it may be considered as beyond the power of law, to maintain at the same time an entire liberty of publication, and a complete security against scandal and personal