[Footnote 8: Ludlow, quoted in 2 Campbell, 470.]

[Footnote 9: 4 Parl. Hist. 162.]

In these reigns such men as Saunders, Wright, and Scroggs, were made Judges, men of the vilest character, with the meanest appetites, licentious, brutal, greedy of power and money, idiotic in the moral sense, appointed solely that they might serve as tools for the oppression of the People. Among these infamous men was George Jeffreys, of whom Lord Campbell says,—"He has been so much abused that I began my critical examination of his history in the hope and belief that I should find that his misdeeds had been exaggerated, and that I might be able to rescue his memory from some portion of the obloquy under which it labors; but I am sorry to say that in my matured opinion his cruelty and his political profligacy have not been sufficiently exposed or reprobated; and that he was not redeemed from his vices by one single solid virtue."[10] But in consequence of his having such a character, though not well-grounded in law, he was made a Judge, a Peer, and a Lord Chancellor! Wright, nearly as infamous, miraculously stupid and ignorant, "a detected swindler, knighted and clothed in ermine, took his place among the twelve judges of England."[11] He also was made Chief Justice successively of the Common Pleas and the King's Bench! Lord Campbell, himself a judge, at the end of his history of the reign of Charles and James, complains of "the irksome task of relating the actions of so many men devoid of political principle and ready to suggest or to support any measures, however arbitrary or mischievous, for the purpose of procuring their own advancement."[12] It was the practice of the Stuarts "to dismiss judges without seeking any other pretence, who showed any disposition to thwart government in political prosecutions."[13] Nor was this dismissal confined to cases where the judge would obey the law in merely Political trials. In 1686 four of the judges denied that the king had power to dispense with the laws of the land and change the form of religion: the next morning they were all driven from their posts, and four others, more compliant, were appointed and the judicial "opinion was unanimous." Hereupon Roger Coke says well,—"the king ... will make the judges in Westminster Hall to murder the common law, as well as the king and his brother desired to murder the parliament by itself; and to this end the king, when he would make any judges would make a bargain with them, that they should declare the king's power of dispensing with the penal laws and tests made against recusants, out of parliament."[14]

[Footnote 10: 3 Campbell, 394.]

[Footnote 11: 2 Campbell Chief Justices, 86.]

[Footnote 12: 3 Campbell, 473.]

[Footnote 13: 3 Hallam, 142.]

[Footnote 14: 8 St. Tr. 195, note.]

* * * * *

Here, Gentlemen of the Jury, I must mention three obscure judges who received their appointments under Stuart kings. Before long I shall speak of their law and its application, and now only introduce them to you as a measure preliminary to a more intimate acquaintance hereafter.

1. The first is Sir William Jones, by far the least ignoble of the three. He was descended from one of the Barons who wrung the Great Charter from the hands of King John in 1618 [Transcriber's Note: for '1618' read '1215'; see Errata], and in 1628 dwelt in the same house which sheltered the more venerable head of his Welsh ancestor. In 1628 he was made judge by Charles I. He broke down the laws of the realm to enable the king to make forced loans on his subjects, and by his special mandate (Lettre de Cachet) to imprison whom he would, as long as it pleased him, and without showing any reason for the commitment or the detention! Yes, he supported the king in his attempt to shut up members of parliament for words spoken in debate in the house of commons itself; to levy duties on imports, and a tax of ship-money on the land. He was summoned before parliament for his offences against public justice, and finally deprived of office, though ungratefully, by the king himself.[15]

[Footnote 15: Account of him in Preface to his Reports, (1675); 3 St. Tr. 162, 293, 844, 1181; 2 Parl. Hist. 869; 1 Rushworth, 661, et al.; Whitlocke, 14, et al.]

2. Thomas Twysden was counsel for George Coney in 1655, a London merchant who refused to pay an illegal tax levied on him by Cromwell—who followed in the tyrannical footsteps of the king he slew. Twysden was thrown into the Tower for defending his client—as Mr. Sloane, at Sandusky, has just been punished by the honorable court of the United States for a similar offence,—but after a few days made a confession of his "error," defending the just laws of the land, promised to offend no more, and was set at liberty, ignominiously leaving his client to defend himself and be defeated. This Twysden was made judge by Charles II. The reporters recording his decisions put down "Twysden in furore," thinly veiling the judicial wrath in modest Latin. He was specially cruel against Quakers and other dissenters, treating George Fox, Margarett Fell, and John Bunyan with brutal violence.[16]

[Footnote 16: 6 St. Tr. 634; 1 Campbell Justices, 442.]

3. Sir John Kelyng is another obscure judge of those times. In the civil war he was a violent cavalier, and "however fit he might be to charge the Roundheads under Prince Rupert, he was very unfit to charge a jury in Westminster Hall." In 1660 he took part in the trial of the Regicides and led in the prosecution of Colonel Hacker, who in 1649 had charge of the execution of Charles I. In 1662 he took part in the prosecution of Sir Henry Vane, and by his cruel subtlety in constructing law, that former governor of Massachusetts,—one of the most illustrious minds of England, innocent of every crime, was convicted of high treason and put to death.[17] For this service, in 1663 Kelyng was made a judge; and then, by loyal zeal and judicial subserviency, he made up "for his want of learning and sound sense." But he was so incompetent that even the court of Charles II. hesitated to make him more than a puny judge. But he had been a "valiant cavalier," and had done good service already in making way with such as the king hated, and so after the death of Sir Nicolas Hyde, he was made Lord Chief Justice in his place. "In this office," says Judge Campbell, he "exceeded public expectation by the violent, fantastical, and ludicrous manner in which he conducted himself."[18] But I will not now anticipate what I have to say of him in a subsequent part of this defence.

[Footnote 17: 6 St. Tr. 161.]

[Footnote 18: 1 Campbell Justices, 401.]

Gentlemen of the Jury, we shall meet these three together again before long, and I shall also speak of them "singly or in pairs." In the mean time I will mention one similar appointment in the reign of George the III.—the last king of New England.

* * * * *

In 1770 Sergeant Glynn, in Parliament, moved for an inquiry into the administration of criminal justice. Edmund Thurlow, a rough venal man, then recently appointed solicitor-general, proposed that a severe censure should be passed on him for the motion. Thurlow wanted the trial by jury abolished in all cases of libel, so that the liberty of the people should be in the exclusive care of government attorneys and judges appointed by the crown. Hear him speak on the 6th of December, 1770.

"In my opinion no man should be allowed with impunity to make a wanton attack upon such venerable characters as the judges of the land. We award costs and damages to the aggrieved party in the most trifling actions. By what analogy, then, can we refuse the same justice in the most important cases, to the most important personages? If we allow every pitiful patriot thus to insult us with ridiculous accusations, without making him pay forfeit for his temerity, we shall be eternally pestered with the humming and buzzing of these stingless wasps. Though they cannot wound or poison, they will tease and vex. They will divert our attention from the important affairs of State to their own mean antipathies, and passions, and prejudices. Did they not count upon the spirit of the times and imagine that the same latitude which is taken by the libellers is here allowable, they would not have dared to offer so gross an outrage. I hope we shall now handle them so roughly as to make this the last of such audacious attempts. They are already ridiculous and contemptible. To crown their disgrace, let us inflict some exemplary punishment. Else none of us is safe. Virtue and honor, you see from this instance, are no safeguard from their attacks."

"The nature, the direct effect, and the remote consequences of a State libel, are so complicated and involved with various considerations of great pith and moment, that few juries can be adequate judges. So many circumstances are at once to be kept in view, so many ponderous interests are to be weighed, so many comparisons to be made, and so many judgments formed, that the mind of an ordinary man is distracted and confounded, and rendered incapable of coming to any regular conclusion. None but a judge, a man that has from his infancy been accustomed to decide intricate cases, is equal to such a difficult task. If we even suppose the jury sufficiently enlightened to unravel those knotty points, yet there remains an insuperable objection. In State libels, their passions are frequently so much engaged, that they may be justly considered as parties concerned against the crown."

"In order, therefore, to preserve the balance of our constitution, let us leave to the judges, as the most indifferent persons, the right of determining the malice or innocence of the intention."

"It is not that I think the intention a matter of fact; no, in the sense put upon it by the judges, it is a matter of law."

"Much dust has been raised about civil and criminal actions. But to what purpose? Is not reparation to be made to the public for any injury which it may have sustained, as much as to an individual? Is the welfare of the nation in general, of less consequence than that of a single person? Where then is the propriety of making such a bustle about the malice or innocence of the intention? The injury done is the only proper measure of the punishment to be inflicted, as well as of the damage to be assessed. Since you cannot plead the intention as a mitigation in the latter case, neither can you in the former."[19]

[Footnote 19: 16 Parl. Hist. 1291, 1292, 1293.]

What followed? On the 23d of July, 1771, he was made Attorney-General. His subsequent history did not disappoint the prophecy uttered above by his former conduct and his notorious character. "In truth his success was certain, with the respectable share he possessed of real talents and of valuable requirements—strongly marked features, piercing eyes, bushy eyebrows, and a sonorous voice, all worked to the best effect by an immeasurable share of self-confidence—he could not fail."[20] He hated America with the intense malignity of a low but strong and despotic nature, and "took a most zealous part and uttered very violent language against the colonists. He scorned the very notion of concession or conciliation; he considered 'sedition' and 'treason,' (like tobacco and potatoes,) the peculiar plants of the American soil. The natives of these regions he thought were born to be taxed."[21] He favored the Stamp Act, the Coercion Bill,—quartering soldiers upon us, sending Americans beyond seas for trial,—the Boston Port Bill, and all the measures against the colonies. "To say that we have a right to tax America and never exercise that right, is ridiculous, and a man must abuse his understanding very much not to allow of that right;" "the right of taxing was never in the least given up to the Americans."[22] On another occasion he said, that "as attorney-general he had a right to set aside every charter in America."[23] What followed? Notwithstanding his youthful profligacy, the open profanity of his public and private speech, and his living in public and notorious contempt of matrimony,—he was made Lord Chancellor and elevated to the peerage in 1778! Him also we shall meet again.

[Footnote 20: 5 Campbell, 398.]

[Footnote 21: 5 Campbell, 410.]

[Footnote 22: 17 Parl. Hist. 1313.]

[Footnote 23: 18 St. Tr. 999.]

Gentlemen of the Jury, I might as well try to bale all the salt water out of the sea as to mention every glaring and notorious instance where an oppressive government has appointed some discarder of all Higher Law for its servant in crushing the People. Come therefore to the next point.

* * * * *

(II.) The next step is by means of such Judges to punish and destroy or silence men who oppose the wickedness of the party in power, and the encroachments of despotism. Let me describe the general mode of procedure, and then illustrate it by special examples.

1. In the Privy Council, or elsewhere, it is resolved to punish the obnoxious men,—and the business is intrusted to the law-officers of the crown, appointed for such functions.

2. They consult and agree to pervert and twist the law—statute or common—for that purpose. By this means they gratify their master, and prepare future advancement for themselves.

3. The precedent thus established becomes the basis for new operations in the future, and may be twisted and perverted to serve other cases as they occur.

Now, Gentlemen, look at some examples taken from British history, in times of the same Kings mentioned before.

1. In 1610 two Puritans for refusing the ex officio oath, were clapped in Jail by the commissioners. They were brought on habeas corpus before a court, and Mr. Fuller, their counsel, a learned lawyer, insisted that they were imprisoned without due process of law. For this "contempt of court" he was thrown into jail by Archbishop Bancroft, whence he was rescued only by death.[24]

[Footnote 24: Peirce's Vindication, (1717,) 174.]

2. In 1613 there were many murmurs among the People of England at the tyranny of James. Fine and imprisonment did not quell the disturbance; so a more dreadful example was thought needful. The officials of Government broke into the study of Rev. Edmund Peacham, a Protestant minister, sixty or seventy years old. In an uncovered cask they found a manuscript sermon, never preached, nor designed for the pulpit or the press, never shown to any one. It contained some passages which might excite men to resist tyranny. He was arrested, and thrown into Jail, all his papers seized. The Government resolved to prosecute him for high treason. Francis Bacon, the powerful and corrupt Attorney-General, managed the prosecution. Before trial was ventured upon, he procured an extrajudicial opinion of the Judges appointed for such services,—irregularly given, out of court, that they would declare such an act high treason.

But a manuscript sermon, neither preached nor designed for the public, was hardly evidence enough of treason even for such Judges—so purchased, for such an Attorney—so greedy of preferment, with such a Cabinet and such a King. For all those, like the Pharisees of old, "feared the People." So their victim was tortured on the rack, and twelve leading questions prepared by the Government officials, were put to him there. I quote Secretary Winwood's record—still extant in his own handwriting—"He was this day examined before torture, in torture, between torture, and after torture; notwithstanding nothing could be drawn from him, he still persisting in his obstinate and insensible denials and former answers." Bacon was present at the torture, which took place in the Tower, Jan. 19, 1614, O.S. (30th Jan. 1615, N.S.). In August he was tried for high treason—"compassing and imagining the King's death"—before a packed jury; against law, and without legal evidence. He was of course found guilty under the ruling of the Court! But public opinion, even then making tyrants "tremble in their capitals," was so indignant at the outrage that the execution was not ventured on, and he was left to languish in Jail, till on the 27th of March, 1616, a King more merciful took the old minister where the wicked cease from troubling.[25]

[Footnote 25: 2 St. Tr. 869; 16 Montagu's Bacon, clxvi.; 2 Campbell, 291.]

In this case, Gentlemen of the Jury, you will notice three violations of the law.

(1.) The opinion of the Judges before the trial was extrajudicial and illegal.

(2.) The application of torture was contrary to law.

(3.) The statute of Treason was wrested to apply to this case—and a crime was constructed by the servants of the court.

It is curious to read the opinion of James himself. "The British Solomon" thus wrote:—

"So the only thing the Judges can doubt of is of the delinquent's intention, on his bare denial to clear him [himself], since nature teaches every man to defend his life as he may; and whether in case there was a doubt herein, the Judges should not rather incline to that side [namely, the side of the Government,] wherein all probability lies: but if Judges will needs trust rather the bare negative of an infamous delinquent—then all the probabilities, or rather infallible consequences upon the other part, caring more for the safety of such a monster than the preservation of a crown in all ages following, whereupon depend the lives of many millions, happy then are all desperate and seditious knaves, but the fortune of this crown is more than miserable. Which God forefend."[26]

[Footnote 26: 2 St. Tr. 879.]

3. In 1633, Laud, a tyrannical, ambitious man, and a servile creature of the King, mentioned before, was made Archbishop of Canterbury, continuing Bishop of London at the same time. Charles I. was strongly inclined to Romanism, Laud also leaned that way, aiming to come as near as possible to the Papal and not be shut out of the English Church. He made some new regulations in regard to the Communion Table and the Lord's Supper. John Williams, before mentioned, Dean of Westminster and Bishop of Lincoln, who had been Lord Keeper under King James, wrote a book against those innovations; besides, in his episcopal court he had once spoken of the Puritans as "good subjects," and of his knowing "that the King did not wish them to be harshly dealt with." In 1637 Laud directed that he should be prosecuted in the Star-Chamber for "publishing false news and tales to the scandal of his Majesty's government;" and "for revealing counsels of State contrary to his oath of a Privy Counsellor." He was sentenced to pay a fine of L10,000,—equal to $50,000, or thrice the sum in these times; to be suspended from all offices, and kept a close prisoner in the Tower during the King's pleasure—whence the Revolution set him at liberty. Besides he wrote private letters to Mr. Osbalderston, and called Laud "the little great man," for this he, in 1639, was fined L5,000 to the King, and L3,000 to the Archbishop. Osbalderston in his letters had spoken of the "great Leviathan" and the "little Urchin," and was fined L5,000, to the King, and the same to the Archbishop, and sentenced also to stand in the pillory with his ears nailed to it![27]

[Footnote 27: 3 St. Tr. 769; 2 Campbell, 400.]

4. In 1629 Richard Chambers, a merchant of London, complained to the Privy Council of some illegal and unjust treatment, and declared "that the merchants in no part of the world are so screwed and wrung as in England; that in Turkey they have more encouragement." Laud, who hated freedom of speech and liberal comments on the government as much as "eminent citizens" nowadays, is said to have told the king, "If your majesty had many such Chambers, you would soon have no Chamber left to rest in." The merchant was tried before the "commissioners" at the Star-Chamber, and fined L2,000, and condemned to make a "submission for his great offence,"[28] which the stout Puritan refused to do, and was kept in prison till the Court of King's Bench, faithful to the law, on Habeas Corpus, admitted him to bail: for which they were reprimanded. Laud and all the ecclesiastical members of the "commission" wished his fine L3,000.

[Footnote 28: 3 St. Tr. 373; Franklyn, 361; 2 Hallam (Paris, 1841), 6 ac etiam 13; 2 Mrs. Macaulay, 16, 45, 65.]

5. In his place in Parliament in 1629, Sir John Eliot, one of the noblest men in England's noblest age, declared that "the Council and Judges had all conspired to trample underfoot the liberties of the subject." Gentlemen, the fact was as notorious as the advance of the Slave Power now is in America. But a few days after the king (Charles I.) had dismissed his refractory Parliament, Eliot, with Hollis, Long, Selden, Strode, and Valentine, most eminent members of the commons, and zealous for liberty and law, was seized by the king's command and thrown into prison. The Habeas Corpus was demanded—it was all in vain, for Laud and Strafford were at the head of affairs, and the priests and pliant Judges in Westminster Hall—Jones was one of them—clove down the law of the land just as their subcatenated successors did in Boston in 1851. The court decreed that they should be imprisoned during the king's pleasure, and not released until making submission and giving security for good behavior. Eliot was fined L2,000, Hollis and Valentine in smaller sums. Eliot—the brave man—refused submission, and died in the Tower. Thus was the attack made on all freedom of speech in Parliament![29]

[Footnote 29: 3 St. Tr. 293; 1 Rushworth; 2 Hallam, 2; 2 Parl. Hist. 488, 504; Foster's Eliot, 100; 2 Mrs. Macaulay, ch. i. ii.]

6. In 1630, the very year of the first settlement of Boston, on the 4th of June, Rev. Dr. Alexander Leighton was brought before the Court of High Commission, in the Star-Chamber, to be tried for a seditious libel. He had published "An Appeal to the Parliament, or a Plea against Prelacy," a work still well known, remonstrating against certain notorious grievances in church and State, "to the end the Parliament might take them into consideration and give such redress as might be for the honor of the king, the quiet of the people, and the peace of the church," the court of commissions accounted it "a most odious and heinous offence, deserving the most serious punishment the court could inflict, for framing a book so full of such pestilent, devilish, and dangerous assertions." The two Chief Justices declared if the case had been brought to their courts, they would have proceeded against him for Treason, and it was only "his majesty's exceeding great mercy and goodness" which selected the milder tribunal. His sentence was a fine of L10,000, to be set in the pillory, whipped, have one ear cut off; one side of his nose slit, one cheek branded with S.S., Sower of Sedition, and then at some convenient time be whipped again, branded, and mutilated on the other side, and confined in the Fleet during life! Before the punishment could be inflicted he escaped out of prison, but was recaptured and the odious sentence fully executed. Those who "obstructed" the officer in the execution of that "process" were fined L500 a piece.[30] Gentlemen of the Jury, which do you think would most have astonished the Founders of Massachusetts, then drawing near to Boston, that trial on the 4th of June, 1630, or this trial, two hundred and twenty-five years later? At the court of Charles it was a great honor to mutilate the body of a Puritan minister.

[Footnote 30: 3 St. Tr. 383; Laud's Diary, 4th November; 2 Hallam, 28.]

But not only did such judges thus punish the most noble men who wrote on political matters, there was no freedom of speech allowed—so logical is despotism!

7. William Prynn, a zealous Puritan and a very learned lawyer, wrote a folio against theatres called "a Scourge for Stage-Players," dull, learned, unreadable and uncommon thick. He was brought to the Star-Chamber in 1632-3, and Chief Justice Richardson—who had even then "but an indifferent reputation for honesty and veracity"—gave this sentence: "Mr. Prynn, I do declare you to be a Schism-Maker in the Church, a Sedition-Sower in the Commonwealth, a wolf in sheep's clothing; in a word 'omnium malorum nequissimus'—[the wickedest of all scoundrels]. I shall fine him L10,000, which is more than he is worth, yet less than he deserveth; I will not set him at liberty, no more than a plagued man or a mad dog, who though he cannot bite, yet will he foam; he is so far from being a sociable soul that he is not a rational soul; he is fit to live in dens with such beasts of prey as wolves and tygers like himself; therefore I do condemn him to perpetual Imprisonment, as those monsters that are no longer fit to live among men nor to see light." "I would have him branded in the forehead, slit in the nose, and his ears cropped too." The sentence was executed the 7th and 10th of May, 1633.[31] But nothing intimidated, the sturdy man committed other offences of like nature, "obstructing" other "officers," and was punished again, and banished. But on the summoning of Parliament returned to England, and became powerful in that Revolution which crushed the tyrants of the time.

[Footnote 31: 3 St. Tr. 561; 2 Hallam, 28, and his authorities. See also 2 Echard, 109, et seq., 124, et seq., 202, 368, 510; the remarks of Hume, Hist. ch. lii., remind me of the tone of the fugitive slave bill Journals of Boston in 1850-54.]

8. In 1685, James II. was in reality a Catholic. He wished to restore Romanism to England and abolish the work of the Reformation, the better to establish the despotism which all of his family had sought to plant. He was determined to punish such as spoke against the Papal Church, though no law prohibited such speaking. Judge Jeffreys, a member of the cabinet and favorite of the king, was at that time chief justice—abundantly fit for the work demanded of him. The pious and venerable Richard Baxter was selected for the victim. Let Mr. Macaulay tell the story.

"In a Commentary on the New Testament, he had complained, with some bitterness, of the persecution which the Dissenters suffered. That men, who, for not using the Prayerbook, had been driven from their homes, stripped of their property, and locked up in dungeons, should dare to utter a murmur, was then thought a high crime against the State and Church. Roger Lestrange, the champion of the government, and the oracle of the clergy, sounded the note of war in the Observator. An information was filed. Baxter begged that he might be allowed some time to prepare for his defence. It was on the day on which Oates was pilloried in Palace Yard that the illustrious chief of the Puritans, oppressed by age and infirmities, came to Westminster Hall to make this request. Jeffreys burst into a storm of rage. 'Not a minute,' he cried, 'to save his life. I can deal with saints as well as with sinners. There stands Oates on one side of the pillory; and if Baxter stood on the other, the two greatest rogues in the kingdom would stand together.'"

"When the trial came on at Guildhall, a crowd of those who loved and honored Baxter, filled the court. At his side stood Doctor William Bates, one of the most eminent Non-conformist divines. Two Whig barristers of great note, Pollexfen and Wallop, appeared for the defendant."

"Pollexfen had scarce begun his address to the jury, when the chief justice broke forth: 'Pollexfen, I know you well. I will set a mark on you. You are the patron of the faction. This is an old rogue, a schismatical knave, a hypocritical villain. He hates the Liturgy. He would have nothing but longwinded cant without book;' and then his lordship turned up his eyes, clasped his hands, and began to sing through his nose in imitation of what he supposed to be Baxter's style of praying, 'Lord, we are thy people, thy peculiar people, thy dear people.' Pollexfen gently reminded the court that his late majesty had thought Baxter deserving of a bishopric. 'And what ailed the old blockhead then,' cried Jeffreys, 'that he did not take it?' His fury now rose almost to madness. He called Baxter a dog, and swore that it would be no more than justice to whip such a villain through the whole city."

"Wallop interposed, but fared no better than his leader. 'You are in all these dirty causes, Mr. Wallop,' said the judge. 'Gentlemen of the long robe ought to be ashamed to assist such factious knaves.' The advocate made another attempt to obtain a hearing, but to no purpose. 'If you do not know your duty,' said Jeffreys, 'I will teach it you.'

"Wallop sat down, and Baxter himself attempted to put in a word; but the chief justice drowned all expostulation in a torrent of ribaldry and invective, mingled with scraps of Hudibras. 'My lord,' said the old man, 'I have been much blamed by Dissenters for speaking respectfully of bishops.'

"'Baxter for bishops!' cried the judge; 'that's a merry conceit indeed. I know what you mean by bishops—rascals like yourself, Kidderminster bishops, factious, snivelling Presbyterians!'

"Again Baxter essayed to speak, and again Jeffreys bellowed, 'Richard, Richard, dost thou think we will let thee poison the court? Richard, thou art an old knave. Thou hast written books enough to load a cart, and every book as full of sedition as an egg is full of meat. By the grace of God, I'll look after thee. I see a great many of your brotherhood waiting to know what will befall their mighty Don. And there,' he continued, fixing his savage eye on Bates, 'there is a doctor of the party at your elbow. But, by the grace of God Almighty, I will crush you all!'

"Baxter held his peace. But one of the junior counsel for the defence made a last effort, and undertook to show that the words of which complaint was made, would not bear the construction put on them by the information. With this view he began to read the context. In a moment he was roared down. 'You sha'n't turn the court into a conventicle!' The noise of weeping was heard from some of those who surrounded Baxter. 'Snivelling calves!' said the judge."[32]

[Footnote 32: 1 Macaulay, (Harper's Ed.) 456-8.]

He was sentenced to pay a fine of 500 marks, to lie in prison till he paid it, and be bound to good behavior for seven years. Jeffreys, it is said, wished him also to be whipped at the tail of a cart.[33] But the King remitted his fine.

[Footnote 33: 1 Macaulay, 456; 11 St. Tr. 493.]

Throughout the reign of James II. the courts of law became more and more contemptible in the eyes of the people. "All the three common law courts were filled by incompetent and corrupt Judges."[34] But their power to do evil never diminished.

[Footnote 34: 2 Campbell's Justices, 87.]

9. James II. wished to restore the Catholic form of religion, rightly looking on Protestantism as hostile to his intended tyranny; so he claimed a right to dispense with the laws relating thereto, put a Jesuit into his Privy Council, expelled Protestants from their offices, and filled the vacancy thus illegally made with Papists; he appointed Catholic bishops.[35] In 1688 he published a proclamation. It was the second of the kind,—dispensing with all the laws of the realm against Catholicism; and ordered it to be read on two specified Sundays during the hours of service in all places of public worship. This measure seemed to be a special insult to the Protestants. The declaration of indulgence was against their conscience, and in violation of the undisputed laws of the land, but Chief Justice Wright declared from the bench his opinion that it was "legal and obligatory," and on the day appointed for reading the decree attended church "to give weight to the solemnity," and as it was not read—for the clerk "had forgot to bring a copy,"—he "indecently in the hearing of the congregation abused the priest, as disloyal, seditious, and irreligious."

[Footnote 35: See 2 Brewster's Newton, 108.]

But the clergy thought differently from the Chief Justice—Episcopalians and Dissenters agreeing on this point. Seven bishops petitioned the King that they might not be obliged to violate their conscience, the articles of their religion, and the laws of the realm, by reading the declaration. They presented their petition in person to the King, who treated it and them with insolence and wrath.

"The king, says Kennet, was not contented to have this declaration published in the usual manner, but he was resolved to have it solemnly read in all churches as the political gospel of his reign. The bishops and clergy were, of all others the most averse to the subject-matter of the declaration, as being most sensible of the ill design and ill effects of it; and therefore the court seemed the more willing to mortify these their enemies, and make them become accessory to their own ruin; and even to eat their own dung, as father Petre proudly threatened, and therefore this order of council was made and published."[36]

[Footnote 36: 12 St. Tr. 239.]

The petition was printed and published with great rapidity, the bishops were seized, thrown into the Tower, and prosecuted in the court for a "false, feigned, malicious, pernicious, and seditious" libel.

Judge Allybone thus addressed the Jury.

"And I think, in the first place, that no man can take upon him to write against the actual exercise of the government, unless he have leave from the government, but he makes a libel, be what he writes true or false; for if once we come to impeach the government by way of argument, it is the argument that makes it the government, or not the government. So that I lay down that, in the first place, the government ought not to be impeached by argument, nor the exercise of the government shaken by argument; because I can manage a proposition, in itself doubtful, with a better pen than another man; this, say I, is a libel.

"Then I lay down this for my next position, that no private man can take upon him to write concerning the government at all; for what has any private man to do with the government, if his interest be not stirred or shaken? It is the business of the government to manage matters relating to the government; it is the business of subjects to mind only their own properties and interests. If my interest is not shaken, what have I to do with matters of government? They are not within my sphere. If the government does come to shake my particular interest, the law is open for me, and I may redress myself by law; and when I intrude myself into other men's business that does not concern my particular interest, I am a libeller.

"These I have laid down for plain propositions; now, then, let us consider further, whether, if I will take upon me to contradict the government, any specious pretence that I shall put upon it, shall dress it up in another form and give it a better denomination? And truly I think it is the worse, because it comes in a better dress; for by that rule, every man that can put on a good vizard, may be as mischievous as he will, to the government at the bottom, so that, whether it be in the form of a supplication, or an address, or a petition, if it be what it ought not to be, let us call it by its true name, and give it its right denomination—it is a libel."

"The government here has published such a declaration as this that has been read, relating to matters of government; and shall, or ought anybody to come and impeach that as illegal, which the government has done? Truly, in my opinion, I do not think he should, or ought; for by this rule may every act of the government be shaken, when there is not a parliament de facto sitting.

"When the house of lords and commons are in being, it is a proper way of applying to the king; there is all the openness in the world for those that are members of parliament, to make what addresses they please to the government, for the rectifying, altering, regulating, and making of what law they please; but if every private man shall come and interpose his advice, I think there can never be an end of advising the government.

"We are not to measure things from any truth they have in themselves, but from that aspect they have upon the government; for there may be every tittle of a libel true, and yet it may be a libel still; so that I put no great stress upon that objection, that the matter of it is not false; and for sedition, it is that which every libel carries in itself: and as every trespass implies vi and armis, so every libel against the government carries in it sedition, and all the other epithets that are in the information. This is my opinion as to law in general. I will not debate the prerogatives of the king, nor the privileges of the subject; but as this fact is, I think these venerable bishops did meddle with that which did not belong to them; they took upon them, in a petitionary, to contradict the actual exercise of the government, which I think no particular persons, or singular body, may do."[37]

[Footnote 37: 12 St. Tr. 427, 428, 429.]

Listen, Gentlemen of the Jury, to the words of Attorney-General Powis:—

"And I cannot omit here to take notice, that there is not any one thing that the law is more jealous of, or does more carefully provide for the prevention and punishment of, than all accusations and arraignments of the government. No man is allowed to accuse even the most inferior magistrate of any misbehavior in his office, unless it be in a legal course, though the fact is true. No man may say of a justice of the peace, to his face, that he is unjust in his office. No man may tell a judge, either by word or petition, you have given an unjust, or an ill judgment, and I will not obey it; it is against the rules and laws of the kingdom, or the like. No man may say of the great men of the nation, much less of the great officers of the kingdom, that they do act unreasonably or unjustly, or the like; least of all may any man say any such thing of the king; for these matters tend to possess the people, that the government is ill administered; and the consequence of that is, to set them upon desiring a reformation; and what that tends to, and will end in, we have all had a sad and too dear bought experience."[38]

[Footnote 38: 12 St. Tr. 281.]

Hearken to the law of Solicitor-General Williams:—

"If any person have slandered the government in writing, you are not to examine the truth of that fact in such writing, but the slander which it imports to the king or government; and be it never so true, yet if slanderous to the king or the government, it is a libel and to be punished; in that case, the right or wrong is not to be examined, or if what was done by the government be legal, or no; but whether the party have done such an act. If the king have a power (for still I keep to that), to issue forth proclamations to his subjects, and to make orders and constitutions in matters ecclesiastical, if he do issue forth his proclamation, and make an order upon the matters within his power and prerogative; and if any one would come and bring that power in question otherwise than in parliament, that the matter of that proclamation be not legal, I say that is sedition, and you are not to examine the legality or illegality of the order or proclamation, but the slander and reflection upon the government."

"If a person do a thing that is libellous, you shall not examine the fact, but the consequence of it; whether it tended to stir up sedition against the public, or to stir up strife between man and man, in the case of private persons; as if a man should say of a judge, he has taken a bribe, and I will prove it.

"They tell the king it is inconsistent with their honor, prudence, and conscience, to do what he would have them to do. And if these things be not reflective upon the king and government, I know not what is.

"I'll tell you what they should have done, Sir. If they were commanded to do any thing against their consciences, they should have acquiesced till the meeting of the parliament. [At which some people in the court hissed.]

"If the king will impose upon a man what he cannot do, he must acquiesce; but shall he come and fly in the face of his prince? Shall he say it is illegal? and the prince acts against prudence, honor, or conscience, and throw dirt in the king's face? Sure that is not permitted; that is libelling with a witness."[39]

[Footnote 39: 12 St. Tr. 415, 416, 417.]

Here, however, there was a JURY—the seven bishops were acquitted amid the tumultuous huzzas of the people, who crowded all the open spaces in the neighborhood of Westminster Hall, and rent the air with their shouts, which even the soldiers repeated.[40]

[Footnote 40: See 2 Campbell's Justices, 95.]

Two of the Judges—Sir John Powell and Sir Richard Holloway—stood out for law and justice, declaring such a petition to the King was not a libel. They were presently thrust from their offices.

* * * * *

Gentlemen of the Jury, the Stuarts soon filled up the measure of their time as of their iniquity, and were hustled from the throne of England. But, alas, I shall presently remind you of some examples of this tyranny in New England itself. Now I shall cite a few similar cases of oppression which happened in the reign of the last King of New England.

I just now spoke of Edmund Thurlow, showing what his character was and by what means he gained his various offices, ministerial and judicial. I will next show you one instance more of the evil which comes from putting in office such men as are nothing but steps whereon despotism mounts up to its bad eminence.

10. On the 8th of June, 1775,—it will be eighty years on the first anniversary of Judge Curtis's charge to the grand-jury,—John Horne, better known by his subsequent name John Horne Tooke, formerly a clergyman but then a scholarly man devoting himself to letters and politics—published the following notice in the Morning Chronicle and London Advertiser, as well as other newspapers:—

"King's-Arms Tavern, Cornhill, June 7, 1775. At a special meeting this day of several members of the Constitutional Society, during an adjournment, a gentleman proposed that a subscription should be immediately entered into by such of the members present who might approve the purpose, for raising the sum of L100, to be applied to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, who, faithful to the character of Englishmen, preferring death to slavery, were for that reason only inhumanly murdered by the king's troops at or near Lexington and Concord, in the province of Massachusetts, on the 19th of last April; which sum being immediately collected, it was thereupon resolved that Mr. Horne do pay to-morrow into the hands of Mess. Brownes and Collinson, on account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the same to the above-mentioned purpose."

At that time Thurlow, whom I introduced to you a little while ago, was Attorney-General, looking for further promotion from the Tory Government of Lord North. Mansfield was Chief Justice, a man of great ability, who has done so much to reform the English law, but whose hostility to America was only surpassed by the hatred which he bore to all freedom of speech and the rights of the Jury. The Government was eager to crush the liberty of the American Colonies. But this was a difficult matter, for in England itself there was a powerful party friendly to America, who took our side in the struggle for liberty. The city of London, however, was hostile to us, wishing to destroy our merchants and manufacturers, who disturbed the monopoly of that commercial metropolis. The government thought it necessary to punish any man who ventured to oppose their tyranny and sympathize with America. Accordingly it was determined that Mr. Horne should be brought to trial. But as public opinion, stimulated by Erskine, Camden and others, favored the rights of the Jury, it seems to have been thought dangerous to trust the case to a Grand-Jury. Perhaps the Judge had no brother-in-law to put on it, or the Attorney-General—though famous also for his profanity,—doubted that any swearing of his would insure a bill; nay, perhaps he did not venture to "bet ten dollars that I will get an indictment against him." Be that as it may, the Attorney-General dispensed with the services of the Grand-Jury and filed an information ex officio against Mr. Horne, therein styling him a "wicked, malicious, seditious, and ill-disposed person;" charging him, by that advertisement, with "wickedly, maliciously, and seditiously intending, designing, and venturing to stir up and excite discontents and sedition;" "to cause it to be believed that divers of his Majesty's innocent and deserving subjects had been inhumanly murdered by ... his Majesty's troops; and unlawfully and wickedly to encourage his Majesty's subjects in the said Province of Massachusetts to resist and oppose his Majesty's Government." He said the advertisement was "a false, wicked, malicious, scandalous, and seditious libel;" "full of ribaldry, Billingsgate, scurrility, balderdash, and impudence;" "wicked is a term too high for this advertisement;" "its impudence disarmed its wickedness." In short, Mr. Horne was accused of "resisting an officer," obstructing the execution of the "process" whereby the American Provinces were to be made the slave colonies of a metropolitan despotism. The usual charge of doing all this by "force and arms," was of course thrown in. The publication of the advertisement was declared a "crime of such heinousness and of such a size as fairly called for the highest resentment which any court of justice has thought proper to use with respect to crimes of this denomination;" "a libel such that it is impossible by any artifice to aggravate it;" "It will be totally impossible for the imagination of any man, however shrewd, to state a libel more scandalous and base in the fact imputed, more malignant and hostile to the country in which the libeller is born, more dangerous in the example if it were suffered to pass unpunished, than this:" "It is in language addressed to the lowest and most miserable mortals, ... it is addressed to the lowest of the mob, and the bulk of the people, who it is fit should be otherwise taught, who it is fit should be otherwise governed in this country."

Mr. Horne was brought to trial on the 4th of July, 1777. He defended himself, but though a vigorous writer, he was not a good speaker, and was in a strange place, while "Thurlow fought on his own dunghill," says Lord Campbell, "and throughout the whole day had the advantage over him." There was a special jury packed for the purpose by the hireling sheriff,—a "London jury" famous for corruption,—a tyrannical and powerful judge, ready to turn every weapon of the court against the defendant and to construct law against the liberty of speech. Of course Mr. Horne was convicted.

But how should he be punished? Thurlow determined.

"My Lords, the punishments to be inflicted upon misdemeanors of this sort, have usually been of three different kinds; fine, corporal punishment by imprisonment, and infamy by the judgment of the pillory. With regard to the fine, it is impossible for justice to make this sort of punishment, however the infamy will always fall upon the offender; because it is well known, that men who have more wealth, who have better and more respectful situations and reputations to be watchful over, employ men in desperate situations both of circumstances and characters, in order to do that which serves their party purposes; and when the punishment comes to be inflicted, this court must have regard to the apparent situation and circumstances of the man employed, that is, of the man convicted, with regard to the punishment.

"With regard to imprisonment, that is a species of punishment not to be considered alike in all cases, but ..., that it would be proper for the judgment of the court to state circumstances which will make the imprisonment fall lighter or heavier, ... that would be proper, if I had not been spared all trouble upon that account, by hearing it solemnly avowed ... by the defendant himself, that imprisonment was no kind of inconvenience to him; for that certain employments, ... would occasion his confinement in so close a way, that it was mere matter of circumstance whether it happened in one place or another; and that the longest imprisonment which this court could inflict for punishment, was not beyond the reach of accommodation which those occasions rendered necessary to him. In this respect, therefore, imprisonment is not only, ... not an adequate punishment to the offence, but the public are told, ... that it will be no punishment.

"I stated in the third place to your Lordships, the pillory to have been the usual punishment for this species of offence. I apprehend it to have been so, in this case, for above two hundred years before the time when prosecutions grew rank in the Star-Chamber ... the punishment of the pillory was inflicted, not only during the time that such prosecutions were rank in the Star-Chamber, but it also continued to be inflicted upon this sort of crime, and that by the best authority, after the time of the abolishing the Star-Chamber, after the time of the Revolution, and while my Lord Chief Justice Holt sat in this court.

"I would desire no better, no more pointed, nor any more applicable argument than what that great chief justice used, when it was contended before him that an abuse upon government, upon the administration of several parts of government, amounted to nothing, because there was no abuse upon any particular man. That great chief justice said, they amounted to much more; they are an abuse upon all men. Government cannot exist, if the law cannot restrain that sort of abuse. Government cannot exist, unless ... the full punishment is inflicted which the most approved times have given to offences of much less denomination than these, of much less. I am sure it cannot be shown, that in any one of the cases that were punished in that manner, the aggravations of any one of those offences were any degree adequate to those which are presented to your Lordship now. If offences were so punished then, which are not so punished now, they lose that expiation which the wisdom of those ages thought proper to hold out to the public, as a restraint from such offences being committed again.

"I am to judge of crimes in order to the prosecution; your lordship is to judge of them ultimately for punishment. I should have been extremely sorry, if I had been induced by any consideration whatever, to have brought a crime of the magnitude which this was (of the magnitude which this was when I first stated it) into a court of justice, if I had not had it in my contemplation also that it would meet with an adequate restraint, which I never thought would be done without affixing to it the judgment of the pillory; I should have been very sorry to have brought this man here, after all the aggravations that he has superinduced upon the offence itself, if I had not been persuaded that those aggravations would have induced the judgment of the pillory."[41]

[Footnote 41: 20 St. Tr. 780-783.]

But Mansfield thought otherwise, and punished him with a fine of L200 and imprisonment for twelve months.[42]

[Footnote 42: 20 St. Tr. 651; 5 Campbell, 415.]

"Thus," says Lord Brougham, "a bold and just denunciation of the attacks made upon our American Brethren, which nowadays would rank among the very mildest and tamest effusions of the periodical press, condemned him to prison for twelve months."[43]

[Footnote 43: Statesmen, 2 Series, 109.]

Thurlow was a man of low intellect, of a fierce countenance, a saucy, swaggering, insolent manner, debauched in his morals beyond the grossness of that indecent age,—ostentatiously living in public concubinage,—a notorious swearer in public and private. But he knew no law above the will of the hand that fed and could advance him, no justice which might check the insolence of power. And in less than a month after Mr. Horne was sent to jail, Thurlow was made Lord Chancellor of England, and sat on the woolsack in the House of Lords. His chief panegyrist can only say, "in worse times there have been worse chancellors." "But an age of comparative freedom and refinement has rarely exhibited one who so ill understood, or at least so ill discharged, the functions of a statesman and legislator."

I will enrich this part of my argument with an example of the opinions of this Judge, which would endear him to the present administration in America, and entitle him to a high place among southern politicians. In 1788 a bill was brought into Parliament to mitigate the horrors of the African slave-trade. The Lord Chancellor, Thurlow, opposed it and said:—

"It appears that the French have offered premiums to encourage the African [slave] trade, and that they have succeeded. The natural presumption therefore is, that we ought to do the same. For my part, my Lords, I have no scruple to say that if the 'five days' fit of philanthropy' [the attempt to abolish the slave-trade] which has just sprung up, and which has slept for twenty years together, were allowed to sleep one summer longer, it would appear to me rather more wise than thus to take up a subject piecemeal, which it has been publicly declared ought not to be agitated at all till next session of Parliament. Perhaps, by such imprudence, the slaves themselves may be prompted by their own authority, to proceed at once to a 'total and immediate abolition of the trade.' One witness has come to your Lordship's bar with a face of woe—his eyes full of tears, and his countenance fraught with horror, and said, 'My Lords, I am ruined if you pass this bill! I have risked L30,000 on the trade this year! It is all I have been able to gain by my industry, and if I lose it I must go to the hospital!' I desire of you to think of such things, my Lords, in your humane phrensy, and to show some humanity to the whites as well as to the negroes."[44]

[Footnote 44: 5 Campbell, 460; 27 Parl. Hist. 638.]

One measure of tyranny in the hands of such Judges is Constructive Crime, a crime which the revengeful, or the purchased judge distils out of an honest or a doubtful deed, in the alembic he has made out of the law broken up and recast by him for that purpose, twisted, drawn out, and coiled up in serpentine and labyrinthine folds. For as the sweet juices of the grape, the peach, the apple, pear, or plumb may be fermented, and then distilled into the most deadly intoxicating draught to madden man and infuriate woman, so by the sophistry of a State's Attorney and a Court Judge, well trained for this work, out of innocent actions, and honest, manly speech, the most ghastly crimes can be extorted, and then the "leprous distilment" be poured upon the innocent victim,

"And a most instant tetter barks about, Most lazar-like, with vile and loathsome crust, All his smooth body!"

Here is an example. In 1668 some London apprentices committed a riot by pulling down some houses of ill-fame in Moorfields, which had become a nuisance to the neighborhood; they shouted "Down with Bawdy Houses." Judge Kelyng had them indicted for High Treason. He said it was "an accroachment of royal authority." It was "levying war." He thus laid down the law. "The prisoners are indicted for levying war against the King. By levying war is not only meant when a body is gathered together as an army, but if a company of people will go about any public reformation, this is high treason. These people do pretend their design was against brothels; now let men to go about to pull down brothels, with a captain [an apprentice "walked about with a green apron on a pole"] and an ensign and weapons,—if this thing be endured, who is safe? It is high treason because it doth betray the peace of the nation, and every subject is as much wronged as the King; for if every man may reform what he will, no man is safe; therefore the thing is of desperate consequence, and we must make this for a public example. There is reason why we should be very cautious; we are but recently delivered from rebellion [Charles I. had been executed nineteen years before, and his son had been in peaceable possession of the throne for eight years], and we know that that rebellion first began under the pretence of religion and the law; for the Devil hath always this vizard upon it. We have great reason to be very wary that we fall not again into the same error. Apprentices for the future shall not go on in this manner. It proved that Beasly went as their captain with his sword, and flourished it over his head [this was the "weapons,"] and that Messenger walked about Moorfields with a green apron on the top of a pole [this was the "ensign"]. What was done by one, was done by all; in high treason all concerned are principals."[45]

[Footnote 45: 1 Campbell's Justices, 404-5; Kelyng's Reports, 70.]

Thereupon thirteen apprentices who had been concerned in a riot were found guilty of high treason, sentenced, and four hanged. All of the eleven Judges—Twysden was one of them—concurred in the sentence, except Sir Matthew Hale. He declared there was no treason committed; there was "but an unruly company of apprentices."[46]

[Footnote 46: 6 St. Tr. 879, note 911.]

This same Judge Kelyng, singularly thick-headed and ridiculous, loved to construct crimes where the law made none. Thus he declares, "in cases of high treason, if any one do any thing by which he showeth his liking and approbation to the Traitorous Design, this is in him High Treason. For all are Principals in High Treason, who contribute towards it by Action or Approbation."[47] He held it was an overt act of treason to print a "treasonable proposition," such as this, "The execution of Judgment and Justice is as well the people's as the magistrates' duty, and if the magistrates pervert Judgment, the people are bound by the law of God to execute judgment without them and upon them."[48] So the printer of the book, containing the "treasonable proposition," was executed. A man, by name Axtell, who commanded the guards which attended at the trial and execution of Charles I., was brought to trial for treason. He contended that he acted as a soldier by the command of his superior officer, whom he must obey, or die. But it was resolved that "that was no excuse, for his superior was a Traitor and all that joined with him in that act were Traitors, and did by that approve the Treason, and when the command is Traitorous, then the Obedience to that Command is also Traitorous." So Axtell must die. The same rule of course smote at the head of any private soldier who served in the ranks![49]

[Footnote 47: Kelyng's Reports, 12.]

[Footnote 48: Ibid. 22.]

[Footnote 49: Kelyng's Reports, 13.]

These wicked constructions of treason by the court, out of small offences or honest actions, continued until Mr. Erskine attacked them with his Justice, and with his eloquence exposed them to the indignation of mankind, and so shamed the courts into humanity and common sense.[50] Yet still the same weapon lies hid under the Judicial bench as well of England as of America, whence any malignant or purchased Judge, when it suits his personal whim or public ambition, may draw it forth, and smite at the fortune, the reputation, or the life of any innocent man he has a private grudge against, but dares not meet in open day. Of this, Gentlemen of the Jury, in due time.

[Footnote 50: See his Defence of Hardy, 24 St. Tr. 877.]

* * * * *

The mass of men, busy with their honest work, are not aware what power is left in the hands of judges—wholly irresponsible to the people; few men know how they often violate the laws they are nominally set to administer. Let me take but a single form of this judicial iniquity—the Use of Torture, borrowing my examples from the history of our mother country.

In England the use of torture has never been conformable either to common or to statute law; but how often has it been practised by a corrupt administration and wicked judges! In 1549 Lord Seymour of Sudley, Admiral of England, was put to the torture;[51] in 1604 Guy Fawkes was "horribly racked."[52] Peacham was repeatedly put to torture as you have just now heard, and that in the presence of Lord Bacon himself in 1614.[53] Peacock was racked in 1620, Bacon and Coke both signing the warrant for this illegal wickedness,—"he deserveth it as well as Peacham did," said the Lord Chancellor, making his own "ungodly custom" stand for law.[54] In 1627 the Lord Deputy of Ireland wanted to torture two priests, and Charles I. gave him license, the privy council consenting—"all of one mind that he might rack the priests if he saw fit, and hang them if he found reason!"[55] In 1628 the judges of England solemnly decided that torture was unlawful; but it had always been so,—and Yelverton, one of the judges, was a member of the commission which stretched Peacham on the rack.[56] Yet, spite of this decision, torture still held its old place, and a warrant from the year 1610 still exists for inflicting this illegal atrocity on a victim of the court.[57] Yet even so late as 1804, when Thomas Pictou, governor of Trinidad, put a woman to tortures of the most cruel character, by the connivance of the court he entirely escaped from all judicial punishment.[58] Yes, torture was long continued in England itself, though not always by means of thumbscrews and Scottish boots and Spanish racks; the monstrous chains, the damp cells, the perpetual irritation which corrupt servants of a despotic court tormented their victims withal, was the old demon under another name.[59] Nay, within a few months the newspapers furnish us with examples of Americans being put to the torture of the lash to force a confession of their alleged crime—and this has been done by the power which this court has long been so zealous to support—the Slave Power of America.

[Footnote 51: See 2 St. Tr. 774, note.]

[Footnote 52: 1 Jardine, Crim. Tr. 16.]

[Footnote 53: 2 St. Tr. 871.]

[Footnote 54: 1 Jardine, 19.]

[Footnote 55: Ibid.]

[Footnote 56: 3 St. Tr. 371. See 30 St. Tr. 892.]

[Footnote 57: 1 Jardine, 20. See Emlyn, Preface to St. Tr. in 1 Hargrave, p. iii.]

[Footnote 58: 30 St. Tr. 225.]

[Footnote 59: See case of Huggins in 17 St. Tr. 297, 309.]

It has been well said:—

"It must be owned that the Guards and Fences of the law have not always proved an effectual security for the subject. The Reader will ... find many Instances wherein they who hold the sword of Justice did not employ it as they ought to in punishment of Evil-Doers, but to the Oppression and Destruction of Men more righteous than themselves. Indeed it is scarce possible to frame a Body of Laws which a tyrannical Prince, influenced by wicked Counsellors and corrupt Judges, may not be able to break through.... The Law itself is a dead letter. Judges are the interpreters of it, and if they prove men of no Conscience nor Integrity, they will give what sense they will to it, however different from the true one; and when they are supported by superior authority, will for a while prevail, till by repeated iniquities they grow intolerable and throw the State into convulsions which may at last end in their own ruin. This shows how valuable a Blessing is an upright and learned Judge, and of what great concern it is to the public that none be preferred to that office but such whose Ability and Integrity may be safely depended on."[60]

[Footnote 60: 1 Hargrave's St. Tr. 6.]

Thus, Gentlemen of the Jury, is it that judges who know no law but the will of "the hand that feeds them," appointed for services rendered to the enemies of mankind and looking for yet higher rewards, have sought to establish the despotism of their masters on the ruin of the People. But the destruction of obnoxious individuals is not the whole of their enormity; so I come to the next part of the subject.

(III.) The next step is for such judges to interpret, wrest, and pervert the laws so as to prepare for prospective Acts of Tyranny.

Here, Gentlemen of the Jury, I shall have only too many examples to warn you with.

Early in his reign James I. sought to lay burthensome taxes on the people without any act of Parliament; this practice was continued by his successors.

1. In 1606 came "the great Case of Impositions," not mentioned in the ordinary histories of England. The king assumed the right to tax the nation by his own prerogative. He ordered a duty of five shillings on every hundred pounds of currants imported into the kingdom to be levied in addition to the regular duty affixed by Act of Parliament. This was contrary to law, nay, to the Constitution of England, her Magna Charta itself provided against unparliamentary taxation. Sir John Bates, a London merchant, refused to pay the unlawful duty, and was prosecuted by information in the Star-Chamber. "The courts of justice," says Mr. Hallam, "did not consist of men conscientiously impartial between the king and the subject; some corrupt with hopes of promotion, many more fearful of removal, or awe-struck by the fear of power." On the "trial" it was abundantly shown that the king had no right to levy such a duty. "The accomplished but too pliant judges, and those indefatigable hunters of precedents for violations of constitutional government, the great law-officers of the crown," decided against the laws, and Chief Justice Fleming maintained that the king might lay what tax he pleased on imported goods! The corrupt decision settled the law for years—and gave the king absolute power over this branch of the revenue, involving a complete destruction of the liberty of the people,—for the Principle would carry a thousand measures on its back.[61] The king declared Fleming a judge to his "heart's content." Bacon's subserviency did not pass unrewarded. Soon after James issued a decree under the great seal, imposing heavy duties on almost all merchandise "to be for ever hereafter paid to the king and his successors, on pain of his displeasure."[62] Thus the Measure became a Principle.

[Footnote 61: 2 St. Tr. 371, and 11 Hargrave, 29; 1 Campbell's Justices, 204.]

[Footnote 62: 1 Hallam, 231. See 1 Parl. Hist. 1030, 1132, 1150; Baker's Chronicle, 430.]

2. James, wanting funds, demanded of his subjects forced contributions of money,—strangely called "Benevolences," though there was no "good-will" on either side. It was clearly against the fundamental laws of the kingdom. Sir Oliver St. John refused to pay what was demanded of him, and wrote a letter to the mayor of Marlborough against the illegal exaction. For this he was prosecuted in the Star-Chamber in 1615 by Attorney-General Bacon. The court, with Lord Chancellor Ellesmere at its head, of course decided that the king had a right to levy Benevolences at pleasure. St. John was fined five thousand pounds, and punished by imprisonment during the king's pleasure. This decision gave the king absolute power over all property in the realm,—every private purse was in his hands![63] With such a court the king might well say, "Wheare any controversyes arise, my Lordes the Judges chosene betwixte me and my people shall discide and rulle me."[64]

[Footnote 63: 2 St. Tr. 899; 1 Hallam, 251; 2 Campbell, 291.]

[Footnote 64: 1 Parl. Hist. 1156.]

3. Charles I. proceeded in the steps of his father: he levied forced loans. Thomas Darnel and others refused to pay, and were put in prison on a General Warrant from the king which did not specify the cause of commitment. They brought their writs of habeas corpus, contending that their confinement was illegal. The matter came to trial in 1627. Sir Randolf Crewe, a man too just to be trusted to do the iniquity desired, was thrust out of office, and Sir Nicolas Hyde appointed chief justice in his place. The actual question was, Has the king a right to imprison any subject forever without process of law? It was abundantly shown that he had no such right. But the new chief justice, put in power to oppress the people, remembering the hand that fed him, thus decreed,—"Mr. Attorney hath told you that the king hath done it, and we trust him in great matters, and he is bound by law, and he bids us proceed by law; ... and we make no doubt but the king, if you look to him, he knowing the cause why you are imprisoned, he will have mercy; but that we believe that ... he cannot deliver you, but you must be remanded." Thus the judges gave the king absolute power over the liberties of any subject.[65]

[Footnote 65: 3 St. Tr. 1. See also 2 Parl. Hist. 288; 1 Rushworth and 1 Mrs. Macaulay, 341.]

But the matter was brought up in Parliament and discussed by men of a different temper, who frightened the judge by threats of impeachment, and forced the king to agree to the PETITION OF RIGHT designed to put an end to all such illegal cruelty. Before Charles I. would sign that famous bill, he asked Judge Hyde if it would restrain the king "from committing or restraining a subject without showing cause." The crafty judge answered, "Every law, after it is made, hath its exposition, which is to be left to the courts of justice to determine; and although the Petition be granted there is no fear of [such a] conclusion as is intimated in the question!" That is, the court will interpret the plain law so as to oppress the subject and please the king! As the judges had promised to annul the law, the king signed it.[66] Charles dissolved Parliament and threw into jail its most noble and powerful members—one of whom, Eliot, never left the prison till death set him free.[67] The same chief justice gave an extrajudicial opinion justifying the illegal seizure of the members,—"that a parliament man committing an offence against the King in Parliament not in a parliamentary course, may be punished after the Parliament is ended;" "that by false slanders to bring the Lords of the Council and the Judges, not in a parliamentary way, into the hatred of the people and the government into contempt, was punishable out of Parliament, in the Star-Chamber, as an offence committed in Parliament beyond the office, and beside the duty of a parliament man."[68] Thus the judges struck down freedom of speech in Parliament.

[Footnote 66: 1 Campbell, Justices, 311; 2 Parl. Hist. 245, 350, 373, 408, et al.; 3 St. Tr. 59.]

[Footnote 67: See above, p. 29.]

[Footnote 68: 1 Campbell's Justices, 315.]

4. In 1634 Charles I. issued a writ levying ship-money, so called, on some seaport towns, without act of Parliament. London and some towns remonstrated, but were forced to submit, all the courts being against them. Chief Justice Finch, "a servile tool of the despotic court," generalized this unlawful tax, extending it to inland towns as well as seaboard, to all the kingdom. All landholders were to be assessed in proportion to their property, and the tax, if not voluntarily paid, collected by force. The tax was unpopular, and clearly against the fundamental law of the kingdom. But if the government could not get the law on its side it could control its interpreters, for "every law hath its exposition." So the Judges of Assize were ordered in their circuits to tell the people to comply with the order and pay the money! The King got all extrajudicial opinion of the twelve Judges delivered irregularly, out of court, in which they unanimously declared that in time of danger the King might levy such tax as he saw fit, and compel men to pay it. He was the sole judge of the danger, and of the amount of the tax.[69]

[Footnote 69: 3 St. Tr. 825. See the opinion of the Judges with their twelve names, 844, and note [dagger symbol].]

John Hampden was taxed twenty shillings—he refused to pay, though he knew well the fate of Richard Chambers a few years before. The case came to trial in 1637, in the Court of Exchequer before Lord Chancellor Coventry, a base creature, mentioned before. It was "the great case of Ship-money." The ablest lawyers in England showed that the tax was contrary to Magna Charta, to the fundamental laws of the realm, to the Petition of Right and to the practice of the kingdom. Hampden was defeated. Ten out of the twelve Judges sided with the King. Croke as the eleventh had made up his mind to do the same, but his noble wife implored him not to sacrifice his conscience for fear of danger, and the Woman, as it so often happens, saved the man.[70] Attorney-General Banks thus set forth the opinion of the Government, and the consequent "decision" of the Judges. He rested the right of levying Ship-money on the "intrinsic, absolute authority of the King." There was no Higher Law in Old England in 1634! Banks said, "this power [of arbitrary and irresponsible taxation] is innate in the person of an absolute King, and in the persons of the Kings of England. All-magistracy it is of nature; and obedience and subjection [to] it is of nature. This power is not anyways derived from the people, but reserved unto the King when positive laws first began. For the King of England, he is an absolute monarch; nothing can be given to an absolute prince but what is inherent in his person. He can do no wrong. He is the sole judge and we ought not to question him, whom the law trusts we ought not to distrust." "The Acts of Parliament contain no express words to take away so high a prerogative; and the King's prerogative, even in lesser matters, is always saved, where express words do not restrain it."[71]

[Footnote 70: Whitelocke, Memor. 25.]

[Footnote 71: 2 Hallam, 16.]

It required six months of judicial labor to bring forth this result, which was of "infinite disservice to the crown." Thereupon Mr. Hallam says:—

"Those who had trusted to the faith of the judges were undeceived by the honest repentance of some, and looked with indignation on so prostituted a crew. That respect for courts of justice which the happy structure of our Judicial administration has in general kept inviolate, was exchanged for distrust, contempt, and a desire of vengeance. They heard the speeches of some of the Judges with more displeasure than even their final decision. Ship-money was held lawful by Finch and several other Judges, not on the authority of precedents which must in their nature have some bounds, but on principles subversive of every property or privilege in the subject. Those paramount rights of monarchy, to which they appealed to-day in justification of Ship-money, might to-morrow serve to supersede other laws, and maintain more exertions of despotic power. It was manifest by the whole strain of the court lawyers that no limitations on the King's authority could exist but by the King's sufferance. This alarming tenet, long bruited among the churchmen and courtiers, now resounded in the halls of justice."[72]

[Footnote 72: 2 Hallam, 18.]

Thus by the purchased vote of a corrupt Judiciary all the laws of Parliament, all the customs of the Anglo-Saxon tribe, Magna Charta itself with its noble attendant charters, were at once swept away, and all the property of the kingdom put into the hands of the enemy of the People. These four decisions would make the King of England as absolute as the Sultan of Turkey, or the Russian Czar. If the opinion of the Judges in the case of Impositions and Ship-money were accepted in law,—then all the Property of the People was the King's; if the courts were correct in their judgments giving the King the power by his mere will to imprison any subject, during pleasure, and also to do the same even with members of Parliament and punish them for debates in the House of Commons, then all liberty was at an end, and the King's Prerogative extended over all acts of Parliament, all property, all persons.

5. One step more must be taken to make the logic of despotism perfect, and complete the chain. That work was delegated to clergymen purchased for the purpose—Rev. Dr. Robert Sibthorpe and Rev. Dr. Roger Mainwaring. The first in a sermon "of rendering all their dues," preached and printed in 1627, says, "the Prince who is the Head, and makes his Court and Council, it is his duty to direct and make laws. 'He doth whatsoever pleaseth him;' 'where the word of the King is there is power, and who may say unto him, What doest thou?'" And again, "If Princes command any thing which subjects may not perform, because it is against the Laws of God, or of Nature, or impossible; yet Subjects are bound to undergo the punishment, without either resisting, or railing, or reviling, and are to yield a Passive Obedience where they cannot exhibit an Active one, ... but in all others he is bound to active obedience."[73]

[Footnote 73: Cited in Franklyn, 208; 1 Rushworth, 422, 436, 444.]

Mainwaring went further, and in two famous sermons—preached, one on the 4th of July, 1628, the other on the 29th of the same month—declared that "the King is not bound to observe the Laws of the Realm concerning the Subject's Rights and Liberties, but that his Royal will and Command, in imposing Loans, and Taxes, without consent of Parliament, doth oblige the subject's conscience upon pain of eternal damnation. That those who refused to pay this Loan offended against the Law of God and the King's Supreme Authority, and became guilty of Impiety, Disloyalty, and Rebellion. And that the authority of Parliament is not necessary for the raising of Aid and Subsidies; and that the slow proceedings of such great Assemblies were not fitted for the Supply of the State's urgent necessities, but would rather produce sundry impediments to the just designs of Princes." "That Kings partake of omnipotence with God."[74]

[Footnote 74: Franklyn, 208, 592. These two Sermons were published in a volume with the title "Religion and Allegiance."... "Published by his Majesty's special command." (London, 1628.) Prof. Stuart seems inspired by this title in giving a name to his remarkable publication—written with the same spirit as Dr. Mainwaring's—"Conscience and the Constitution." (Andover, 1851.) See 3 St. Tr. 335; 1 Rushworth, 422, 436, 585, et al.; 1 Hallam, 307; 2 Parl. Hist. 388, 410.]

The nation was enraged. Mainwaring was brought before Parliament, punished with fine and imprisonment and temporary suspension from office and perpetual disability for ecclesiastical preferment. But the King who ordered the publication of the sermons, and who doubtless had induced him to preach them, immediately made him Rector of Stamford Parish, soon appointed him Dean of Worcester, and finally in 1645 made him Bishop of St. David's. A few years ago such clerical apostasy would seem astonishing to an American. But now, Gentlemen of the Jury, so rapid has been the downfall of public virtue, that men filling the pulpits once graced and dignified by noblest puritanic piety, now publicly declare there is no law of God above the fugitive slave bill. Nay, a distinguished American minister boldly proclaimed his readiness to send his own Mother (or "Brother") into eternal bondage! Thus modern history explains the old; and the cheap bait of a republican bribe can seduce American dissenters, as the wealthy lure of royal gifts once drew British churchmen into the same pit of infamy. Alas, hypocrisy is of no sect or nation.

Gentlemen, the Government of England once decreed "that every clergyman, four times in the year, should instruct his parishioners in the Divine right of Kings, and the damnable sin of resistance."[75] No Higher Law! America has ministers who need no act of Parliament to teach them to do the same; they run before they are sent.

[Footnote 75: 2 Campbell, 460; 1 Rushworth, 1205.]

6. After the head of one Stuart was shorn off and his son had returned, no wiser nor better than his father, the old progress of despotism began anew. I pass over what would but repeat the former history, and take two new examples to warn the nation with, differing from the old only in form.

In 1672, Charles II. published a proclamation denouncing rigorous penalties against all such as should speak disrespectfully of his acts, or hearing others thus speak should not immediately inform the magistrates! Nay, in 1675, after he had sold himself to the French king, and was in receipt of an annual pension therefrom, he had this test-oath published for all to sign: "I do solemnly declare that it is not lawful upon any pretence whatever to take up arms against the king, ... and that I will not, at any time to come, endeavor the alteration of the government, either in Church or State."[76]

[Footnote 76: Carroll's Counter Revolution (Lond. 1846), 99, et seq.]

An oath yet more stringent was enforced in Scotland with the edge of the sword, namely, to defend all the prerogatives of the crown, "never without the king's permission to take part in any deliberations upon ecclesiastical or civil affairs; and never to seek any reform in Church or State."

Notwithstanding all that the Charleses had done to break down the liberty of Englishmen, still the great corporate towns held out, intrenched behind their charters, and from that bulwark both annoyed the despot and defended the civil rights of the citizen. They also must be destroyed. So summons of quo warranto were served upon them, which frightened the smaller corporations and brought down their charters. Jeffreys was serviceable in this wicked work, and on his return from his Northern Circuit, rich with these infamous spoils, as a reward for destroying the liberties of his countrymen, the king publicly presented him with a ring, in token of "acceptance of his most eminent services." This fact was duly blazoned in the Gazette, and Jeffreys was "esteemed a mighty favorite," which, "together with his lofty airs, made all the charters, like the walls of Jericho, fall down before him, and he returned, laden with surrenders, the spoil of towns."[77]

[Footnote 77: 8 St. Tr. 1038, and the quotations from North (Examen.) Sprat, and Roger Coke, in note on p. 1041, et seq. See, too, Fox, James II. p. 48, 54, and Appendix, Barillon's Letter of Dec. 7th, 1684.]

London still remained the strong-hold of commerce, of the Protestant Religion, and of liberal Ideas in domestic Government; for though subsequently corrupted by lust of gain, which sought a monopoly, the great commercial estates and families of England were not then on the side of Despotism, as now strangely happens in America.

When the king sought to ruin Shaftesbury,—a corrupt man doubtless, but then on the side of liberty, the enemy of encroaching despotism,—a London Grand-Jury refused to find a bill, and was warmly applauded by the city. Their verdict of IGNORAMUS was a "personal liberty bill" for that time, and therefore was the king's wrath exceeding hot, for "Ignoramus was mounted in Cathedra," and there was a stop put to such wickedness. So London must be brought down. She refused to surrender her Charter. In 1682 the king proceeded to wrest it from her by the purchased hand of the courts of law. But even they were not quite adequate to the work. So Chief Justice Pemberton was displaced, and Saunders,—a man as offensive in his personal habit of body as he was corrupt in conduct and character—was put in his office. Dolbin, too just for the crime demanded of him, was turned out, and Withins made to succeed him. For "so great a weight was there at stake as could not be trusted to men of doubtful principles," says North. Saunders, who had plotted this whole matter, was struck with an apoplexy when sentence was to be given, but sent his opinion in writing. Thus on the judgment given by only two judges, who assigned no reasons for their decision, it was declared that the Charter of London was forfeit, and the liberties and franchises of the city should "be seized into the king's hands."[78]

[Footnote 78: 2 Hallam, 333; Burnet, Own Times (London, 1838), 350; 8 St. Tr. 1039, 1081 note, 1267, et seq.; 2 Campbell, Justices, 63; North's Examen. 626; Fox, 54.]

Thus fell the charter of London! Gentlemen of the Jury, the same sword was soon to strike at the neck of New England; the charter of Massachusetts could not be safe in such a time.

In 1686 James II. wished to destroy Protestantism,—not that he loved the Roman form of religion, but that tyranny which it would help him get and keep. So he claimed the right by his royal prerogative to dispense with any laws of the land. Of the twelve Judges of England eight were found on his side, and the four unexpectedly proven faithful were at once dismissed from office and their places filled with courtiers of the king, and the court was unanimous that the king had a constitutional right to destroy the constitution. Then he had not only command of the purses of his subjects and their bodies, but also of their mind and conscience, and could dictate the actual Religion of the People as well as the official "religion" of the priests.[79]

[Footnote 79: 11 St. Tr. 1165; 12 Ibid. 358.]

One State-secret lay at the bottom of the Stuarts' plans,—to appoint base men for judges, and if by accident a just man came upon the bench, to keep him in obscurity or to hustle him from his post. What names they offer us—Kelyng, Finch, Saunders, Wright, Jeffreys, Scroggs![80] infamous creatures, but admirable instruments to destroy generous men withal and devise means for the annihilation of the liberties of the people. Historians commonly dwell on the fields of battle, recording the victories of humanity, whereof the pike and gun were instruments; but pass idly over the more important warfare which goes on in the court house, only a few looking on, where lawyers are the champions of mankind, and the battle turns on a sentence; nay, on a word which determines the welfare of a nation for ages to come. On such little hinges of law do the great gates hang, and open or shut to let in the happiness or the ruin of millions of men! Naseby and Worcester are important places truly, venerable for great deeds. Cromwell and Blake are names not likely to perish while men can appreciate the heroism which sheds blood. But Westminster Hall has rung with more important thunder than cannon ever spoke, and Pym and Selden, St. John and Hampden—nay, Penn, Bunyan, Fox, Lilburne—have done great service for mankind. Gentlemen of the Jury, it is a matter of great magnitude which hinges on the small question of fact and law to-day. You are to open or shut for Humanity. If the People make themselves sheep there will be wolves enough to eat you up.

[Footnote 80: This last name is thought to be extinct in Great Britain, but I find one Thomas Scruggs in Massachusetts in 1635 et post, 1 Mass. Records (1628-1641), index.]

It is difficult to calculate the amount of evil wrought by such corrupt judges as I have spoken of; they poison the fountains of society. I need not speak of monsters like Scroggs and Jeffreys, whose names rot in perpetual infamy, but creatures less ignoble, like Wright, Saunders, Finch, Kelyng, Thurlow, Loughborough, and their coadjutors, must be regarded as far more dangerous than thieves, murderers, or pirates. A cruel, insolent Judge selecting the worst customs, the most oppressive statutes, and decisions which outrage human nature—what an amount of evil he can inflict on groaning humanity!

* * * * *

Gentlemen of the Jury, in this long sad history of judicial tyranny in England there is one thing particularly plain: such judges hate freedom of speech, they would restrict the Press, the Tongue, yes, the Thought of mankind. Especially do they hate any man who examines the actions of the government and its servile courts, and their violation of justice and the laws. They wish to take exemplary and malignant vengeance on all such. Let me freshen your knowledge of some examples.