Report of the trial of Dr. Samuel Thomson, the founder of the Thomsonian practice, for an alleged libel in warning the public against the impositions of Paine D. Badger, as a Thomsonian physician sailing under false colors, before Judge Thacher, in the Municipal Court of Boston, April term, 1839.

Samuel Thomson

Date:: 1839

Credit: Report of the trial of Dr. Samuel Thomson, the founder of the Thomsonian practice, for an alleged libel in warning the public against the impositions of Paine D. Badger, as a Thomsonian physician sailing under false colors, before Judge Thacher, in the Municipal Court of Boston, April term, 1839. Source: Wellcome Collection.

Provider: This material has been provided by the Francis A. Countway Library of Medicine, through the Medical Heritage Library. The original may be consulted at the Francis A. Countway Library of Medicine, Harvard Medical School.

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$evidence of the existence of the law is brought home to }our nnder- standings, past all doubt, how ean you discharge your oatlf to wcH and truly try the issue between the Commonweallh and the Defend- ant according to your evidence? Your first demand upon the Commonwealth is, show me the lav? to punish tiiis citizen 1 In my opinion the law exists, says the learned Judge. Where \s \.\\g evidence o^ liV^ demands the juror ; and of the weight of that evidence as well- as the application of the Jaw to the facts, he must judge for liimself and not the Court for him.. He cannot put his oath or his conscience in the keeping of the Judge. If the juror falsifies that oath, it is he and not the Judge, who will be held accountable by the Judge of all Judges. Suppose the Judge should say to you, in my opinion this man is guilty, dare you con- vict him on that opinion, under your oath, without investigating the evidence? If, then, the Judge's opinion as to the existence of the facts in the case is not binding on you, how can you delegate to him the power of deciding for you whether the most important fact of all, the law to punish, exists? Look at it then, in this relation, as a simple question of evidence, and be not alarmed out of the exercise of reason and judgment by the notion, that there is some great mystery attached to the simple fact-, whether a certain act is or not an offence by Jaw. If you are told that you have never studied Jaw and can know nothing about it, while the Court knows every thing ; let your answer be that you are not put here as servants to the Court, to nod assent to its opinions, but as an independant, coordinate branch of tlie administration of justice; and every man of yon, in a criminal trial, a judge, with higher powers than he wlio presides on the bench,—for he can only give you his opinion of the Jaw and the facts. You are sworn by your oatli and required by your office, to judge of both the law and the facts.*' I contend that there is no criminal Law of Libel in force in this State, on which this indictment is founded. 1st, Because the indictment is not founded on any Statute, but on the Common Law of England. 2d, Because the Common Law of England, punishing libelling as a crime, was not adopted and approved and usually practiced on in the Courts of Law before the Constitution. 3d, And if ever adopted before the Constitution, it was abrogated and repealed. 1st, By the Colonial Acts which established a distinct law for the Colony upon Lying and Libelling,—2d, by the Constitu- tion itself, to which the English Law of Libel is utterly repugnant. When a citizen is arraigned for a crime which is to touch his lib- erty, the first inquiry for a Jury to make of the Government is— show us the law? for the Bill of Rights says no person shall be held to * Juries are Judges, and if a Jury have no right to enter into a question of law, their decision is in itself a mere nullity. Jurymen are too often ignorant of their own rights, and too apt to be awed by the authority of a Judge. Your Barristers are too apt to be civil to my Lord Chief Justice, at the expense of their clients. [Junius to Lord Mansfield.] The Judge is always to be respect- ed so long as he respects the rights of others; but should never be allowed to dictate to a jury, or to enforce their consciences.$