Gentlemen: It has been a question much agitated and of great importance to the political happiness of men whether any people can govern themselves in an equal, uniform and orderly manner. This question, like others whose solution depends on facts, can only be determined by experience—it is a question upon which many think some reason for doubt still remains. Men have made very few fair opportunities of making the experiment; and this is one reason why less progress has been made in the science of government than in almost any other. The far greater number of the constitutions and governments of which we are informed have originated in force or in frauds, having been either imposed by improper exertions of power, or introduced by designing men whose apparent zeal for liberty and the public good, enabled them to take advantage of the credulity and misplaced confidence of their fellow citizens. Providence has singularly blessed the people of this country with means and opportunities for providing for their own government in the way most agreeable to their judgement and wishes. Our measures for that purpose have neither been declared nor controlled by foreign power, nor much affected by foreign influence. Our citizens are generally and greatly enlightened, and our country is so extensive, that the personal influence of individuals can very rarely embrace large portions of it. We have already made several experiments, and the result of them has greatly increased our knowledge. The present national government already affords advantages, which the one that preceded it, proved too feeble and ill-constructed to produce. The good sons of the people will from time to time discover its imperfections, and be enabled by further experience to correct and amend them, especially while they continue to retain a proper confidence in themselves and one another and avoid those jealousies and dissentions which oppose improvements, and which often springing from the worst designs, are always unfriendly to the best measure.
Wise…men have thought and reasoned very differently respecting the formulation of government in general, but in this particular proposition they have at length very unanimously agreed, viz. that its powers should be divided into three distinct independent departments – the executive, legislative, and judicial. But how to construct and balance them in such a manner, as best to guard against abuse and fluctuation, and preserve the Constitution from encroachments are points on which there continues to be a great diversity of opinions and on which we have all as yet much to learn. The Constitution of the U. S. has accordingly instituted these three departments, and much pains have been taken so as to form and define them, as that they may operate as checks one on the other, and keep each within its proper limits – it being universally agreed to be of the last importance to a free people that they who are vested with executive, legislative, and judicial authority, should rest satisfied with their respective portions of power, and neither encroach on the provinces of each other, nor suffer themselves or the others to intermeddle with the rights reserved by the Constitution to the people. These remarks show the importance of our rightly improving the before-mentioned opportunities – to show that the most deserving and enlightened mind may be mistaken relative to theories uninformed by practice –that on such difficult questions men may differ in opinions and yet be patriots, and that as the merits of their opinions can only be ascertained by experience, they should patiently abide the trial, and unite their endeavors to render it a fair and impartial one. These observations may not appear very pertinent to the present occasion, and yet it will be readily admitted that occasions of promoting good will and good temper…among our fellow citizens should not be omitted.
This motive urges me further to observe that a variety of local and other circumstance conspired to render the institution of the judicial department particularly difficult. We had become a nation; as such we were responsible to others for the observance of the laws of nations and as our national concerns were to be regulated by national laws, national tribunals became necessary for the interpretation and execution of them both. No tribunals of the like kind of extent had heretofore existed in this country; from such therefore no light of experience, nor facilities of usage and habit could be derived. Our jurisprudence varies in almost every state, and was accommodated to local, not general, convenience, to partial not national policy. This convenience and this policy were nevertheless to be regarded and tenderly treated. A federal control, general and final, was indispensible. The manner of establishing it, with powers neither too extensive nor limited, rendering it properly independent and yet properly amenable, involved questions of no little intricacy. The expediency of carrying the national justice as it were to every man's door was observed, but how to do it in an expedient manner was far from being apparent. To provide against discord between national and state jurisdictions, to render them auxiliary instead of hostile to each other, and so to connect both as to leave each sufficiently independent and yet sufficiently combined was and will be arduous.
Institutions formed under such circumstances should therefore be received with candor, and tried with temper and prudence. It was under these embarrassing circumstances that the articles in the Constitution on this subject, as well as the act of Congress establishing the judicial courts of the United States were made and passed…. Under the authority of that exercise of the latter you gentlemen are necessary, and for that purpose are now convened. The most perfect constitutions, the best governments and the wisest laws are vain, unless well administered and well obeyed. Virtuous citizens will observe them from a sense of duty, but those of an opposite description can be restrained only be fear of disgrace and punishment. Such being the state of things, it is essential to the welfare of society, and to the protection of each member of it, in the peaceable enjoyment of his rights, that offenders be punished. The end of punishment however is not to expiate for offences, but by the terror of example to deter men from the commission of them.
To render these examples useful, policy as well as morality require not only that punishment be proportionate with guilt, but that all proceedings against persons accused or suspected should be accompanied by the reflection that they may be innocent. Hence therefore it is proper that dispassionate and careful inquiry should precede those rigors which justice exacts, and which should always be tempered with as much humanity and benevolence as the nature of such cases may admit. Warm, partial and precipitate prosecutions , and cruel and abominable executions, such as racks, emboweling, drawing, quartering, burning &c. are no less impolitic than inhuman. They infuse into the public mind disgust at the barbarous severity of government, and fill it with pity and partiality for the sufferers. On the contrary when offenders were prosecuted with temper and decency, when they were convicted after impartial trials, and punished in a manner becoming the dignity of public justice to prescribe, the feelings and sentiments of men will be on the side of government, and however disposed they may and ought to be to regard suffering offenders with compassion, yet that compassion will not be unmixed with a due degree of indignation.
We are happy that the genius of our laws is mild, and we have abundant reason to rejoice in possession one of the best institutions that ever was devised for bringing offenders to justice without endangering the peace and security of the innocent. I mean that of grand juries. Greatly does it lend to promote order and good government, that in every district there should frequently be assembled a number of the most desired and respectable citizens in it, who on their oaths are bound to enquire and truly to present all offense committed against the law in such district. And greatly does it lend to the security of good and peaceful citizens, that no man can be put in jeopardy for imputed crimes, without such previous enquiry and presentment. The extent of your district, gentlemen, which is commensurate with the state, necessarily extends your duty throughout every county in it, and demands proportionable diligence in your enquiries and circumspection in your presentments. The objects of your enquiry are all offences against the laws of the United States in this district or on the high seas by persons now in this district. You will recollect that the laws of nations make part of the law of this, and of every other civilized nation. They consist in those rules for regulating the conduct of nations towards each other, which resulting from right reason receive their obligation from that principle and from general assent and practice. To this head also belong those rules and laws which become established by agreement between particular nations, and of this kind are treaties, conventions and such like compacts. As in private life a fair and legal contract between two men cannot be altered or annulled by either without the consent of the other, so neither can treaties between nations. States and legislatures may repeal their regulating statutes, but they cannot repeal their bargains – hence it is that treaties fairly made and concluded are perfectly obligatory and ought to be punctually observed. We are now a nation, and it equally becomes us to perform our duties as to assert our rights.
The penal statutes of the U. S. are few, and principally respect the revenue. The right ordering and management of this important business is very essential to the credit, honor and welfare of our country. On the citizens at large are place the burthen of providing for the public exigencies; however therefore fraudulently withdraws his shoulder from that common burthen necessarily leaves his portion of the weight to be borne by the others, and thereby does injustice not only to the public in general but to them in particular. Direct your attention also to the conduct of the national officers, and let not any corruptions, frauds, extortions or criminal negligencies with which you may find any of them justly chargeable pass unnoticed. In short, gentlemen, your province extends, as has been before observed, to the enquiry and presentment of all offences of every kind committed against the U. S. in this district, and on the high seas by persons in it. If in the performance of your duty you should meet with difficulties, the court will afford your proper assistance.
It cannot be strongly impressed on the minds of us all how greatly our individual prosperity depends on our national prosperity, and how greatly our national prosperity depends on a well-organized, vigorous government ruling by wise and equal laws faithfully executed. Nor is such a government unfriendly to liberty, to that liberty which is really inestimable. On the contrary, nothing but a strong government of laws, irresistibly bearing down arbitrary power and licentiousness, can defend it against those two formidable enemies. Let it be remembered that liberty consists not in a right to every man to do just what he pleases, but it consists in an equal right to all citizens to have, enjoy and do in peace and security and without molestation whatever the equal and constitutional laws of this country admit to be consistent with the public good. It is the duty and interest therefore of all good citizens in their several stations to support the government and the laws, which then protects their rights and liberties. I am persuaded, gentlemen, that you will cheerfully and faithfully perform the task no assigned, and forebear, by additional remarks, to detain you from it.