Charge of the Honourable WILLIAM HENRY DRAYTON, Esquire, one of the Judges of the General Sessions of the Peace, Oyer and Terminer, Assize and General Jail Delivery, for the Districts of CAMDEN and CHERAWS, in SOUTH CAROLINA, on his Circuit, the fifth and fifteenth days of NOVEMBER, 1774, delivered to the several Grand Juries, and by them ordered to be published:
GENTLEMEN OF THE GRAND JURY: You are now met to discharge one of the most important duties in society, for you are assembled arbiters of the innocence or guilt of such of your fellow-citizens who are so unfortunate as to have afforded occasion, however slight, for the laws to take cognizance of their conduct. You are authorized to pass judgment, in the first instance, upon the apparently guilty wretch, and by your acquitting voice, to shield apparent innocence from a malicious prosecution. Such powers have the Constitution of your country vested in you, powers no less important than truly honourable, when exercised with a fearless integrity.
It is your indispensable duty to endeavour to exercise these powers with propriety; it is mine concisely to point out to you the line of your conduct — a conduct which the venerable Constitution of your country intends, by protecting the innocent and by delivering the guilty over to the course of law, should operate to nourish, in its native vigour, even that Constitution itself, from whose generous spirit we have a title to call ourselves freemen, an appellation which peculiarly distinguishes the English subjects, (those unfortunately disappointed fellow-citizens in Quebec excepted,) and ranks them above all the civilized Nations of the earth.
By as much as you prefer freedom to slavery, by so much ought you to prefer a generous death to servitude, and to hazard every thing to endeavour to maintain that rank which is so gloriously pre-eminent above all other Nations. You ought to endeavour to preserve it, not only for its inestimable value, but from a reverence to our ancestors from whom we received it, and from a love of our children, to whom we are bound, by every consideration, to deliver down this legacy, the most valuable that ever was or can be delivered to posterity. It is compounded of the most generous civil liberty that ever existed, and the sacred Christian Religion released from the absurdities which are inculcated, the shackles which are imposed, the tortures which are inflicted, and the flames which are lighted, blown up and fed with blood by the Roman Catholick doctrines: doctrines which tend to establish a most cruel tyranny in Church and State — a tyranny under which all Europe groaned for many ages. And such are the distinguishing characters of this legacy, which may God of is infinite goodness and mercy long preserve to us and graciously continue to our posterity: but without our pious and unwearied endeavours to preserve these blessings, it is folly and presumption to hope for a continuance of them; hence, in order to stimulate your exertions in favour of your civil liberties, which protect your religious rights, instead of discoursing to you of the laws of other States, and comparing them to our own, allow me to tell you what your civil liberties are, and to charge you, which I do in the most solemn manner, to hold them dearer than your lives; a lesson and charge at all times proper from a Judge, but particularly so at this crisis, when America is in one general and generous commotion touching this truly important point.
It is unnecessary for me to draw any other character of those liberties than that great line by which they are distinguished; and happy is it for the subject that those liberties can be marked in so easy and in so distinguishing a manner. And this is the distinguishing character: English people cannot be taxed, nay, they cannot be bound by any law unless by their consent, expressed by themselves or their Representatives of their own election. This Colony was settled by English subjects; by a people from England herself; a people who brought over with them, who planted in this Colony, and who transmitted to posterity the invaluable rights of Englishmen — rights which no time, no contract, no climate can diminish. Thus possessed of such rights, it is of the most serious importance that you strictly execute those regulations which have arisen from such a parentage, and to which you have given the authority of laws, by having given your constitutional consent that they should operate as laws; for by your not executing what those laws require, you would weaken the force, and would shew, I may almost say, a treasonable contempt of those constitutional rights out of which your laws arise, and which you ought to defend and support at the hazard of your lives. Hence, by all the ties which mankind hold most dear and sacred; your reverence to your ancestors; your love to your own interests; your tenderness to your posterity; by the lawful obligations of your oath, I charge you to do your duty; to maintain the laws, the rights, the Constitution of your country, even at the hazard of your lives and fortunes.
Some courtly Judges style themselves the King’ s servants, a style which sounds harshly in my ears, inasmuch as the being a servant implies obedience to the orders of the master, and such Judges might possibly think that, in the present situation of American affairs, this charge is inconsistent with my duty to the King. But for my part, in my judicial character, I know no master but the law; I am a servant, not to the King, but to the Constitution; and, in my estimation, I shall best discharge my duty as a good subject to the King, and a trusty officer under the Constitution, when I boldly declare the law to the people, and instruct them in their civil rights. Indeed, you gentlemen of the Grand Jury, cannot properly comprehend your duty, and your great obligation to perform it, unless you know those civil rights from which these duties spring, and, by knowing the value of those rights, thence learn your obligations to perform these duties.
Having thus generally touched upon the nature and importance of your civil rights, in order to excite you to execute those laws to which they have given birth, I will now point out to you the particular duties which the laws of your country require at your hands.
Unbiased by affection to, and unawed by fear of, any man, or any set of men, you are to make presentment of every person and of every proceeding militating against publick good. The law orders me particularly to give in charge, to watch carefully over our Negro Act, and our Jury Law — a law which cannot be too highly valued, whether we regard the excellency of its nature or the importance of its object. This law carries in itself an indelible mark of what high importance the Legislature thought it when they enacted it; and it carries in itself also a kind of prophecy that its existence in its native vigour would, in after times, be endangered, and therefore it is that the law orders the Judges ever to charge the Grand Juries to watch over it with care; indeed you ought to do so with the most jealous circumspection. A learned Judge says, “Every new tribunal erected for the decision of facts. without the intervention of a Jury, is a step towards aristocracy, the most oppressive of absolute Governments; and it is therefore a duty which every man owes to his country, his friends, his posterity, and himself, to maintain to the utmost of his power this valuable Constitution in all its rights, to restore it to its ancient dignity, if at all impaired; to amend it wherever it is defective, and above all to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine this best preservative of English liberty.” Mr˙ Justice Blackstone terms the English Trial by Jury, the glory of the English Law; let me tell you our Trial by Jury is that kind of glory in full meridian lustre, in comparison of which the English mode appears only with diminished splendour.
But let not your care of this great object occupy all your attention; you are to find all such bills of indictment as the examination of witnesses in support of them may induce you to think there is a probability that the tact charged is true; for you are not to exact such circumstancial and positive evidence as would be necessary to support the indictment before a Petit Jury. To make those presentments, and to find these bills, it is not necessary that you all agree in opinion; twelve united voices among you are sufficient to discharge the duties of a Grand Jury, but it is absolutely necessary that twelve of you agree in opinion upon every point under your consideration; and happy, happy, thrice happy are that people who cannot be made to suffer under any construction of the law, but by the united voices of twenty-four impartial men, having no interest in the cause, but that the laws be executed and justice be administered.
In short, that you may discharge your duty with propriety, and that you may pursue that course of conduct which the law requires, let me, in the strongest terms, recommend to you that you keep constantly in your mind the nature and particulars of the oath which you have just taken. To you this oath is of as much importance as the mariner’ s compass is to those who sail on the ocean: this points out the course of their voyage; your oath as clearly points out to you the course of your conduct. I dare say you are willing to discharge that duty which you owe to society; I make no doubt but that you will discharge it with advantage to the publick, and therefore with honour to yourselves.
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