Chapter XXVIII: Appendix: No. I (3)

Some days after, (Oct. 26,) Messrs. Gilpin and Meredith, of counsel for Williamson, appeared in Judge Kane's court, and asked leave to read a petition from Williamson. This petition contained a statement of the facts in relation to his connection with the liberation of Jane Johnson and her children, similar to that contained in his petition to the supreme court of Pennsylvania, Appendix. No. I. The following account of the proceedings on this motion is taken from the _Philadelphia Gazette_:--

Judge Kane said, 'The court cannot hear an application from a party in contempt, except to absolve him. I understand there is an application, by petition, in the name of Passmore Williamson, which is not to relieve himself from the contempt, but--'

Mr. Meredith then remarked something in an inaudible tone, and Judge Kane said: 'Let us not be misunderstood--I am not prepared to receive an application from Passmore Williamson, who is incarcerated for contempt of this court, unless such petition be to relieve himself from contempt by purgation. I am of opinion, unless otherwise instructed, that that is an independent preliminary to any other application from him.

'If, therefore, the counsel arise to present an application from Mr. Williamson, it must be for purgation. The counsel do not inform the court whether they are here to purge Mr. Williamson from the contempt. As at present advised, I have no power to hear their application, whatever it may be, in his behalf.'

Mr. Meredith said there were two kinds of contempts; one of personal insult to the bench, with which Passmore Williamson is not concerned; but the contempt consisting in not making a proper return to the process of the court.

Mr. Meredith then proceeded to argue that such a contempt could be purged by making an answer to the court and paying the costs, which he was now prepared to do.

Judge Kane said, that up to this moment there has been, on the part of the individual to whom the function of the court has been delegated and exercised in this matter, not a single particle of conscious excitement. He did not believe it was in the power of the entire press of the United States, after he had honestly administered his duty to the best of his ability, to give him a pang, or produce one excited feeling; therefore, now as heretofore, he looked upon the question as one that has no feeling on the bench.

If he understood the remarks of Mr. Meredith, he meant to say to the court that Passmore Williamson was desirous of testifying now his willingness to obey the exigencies of the writ of _habeas corpus_. If so, he had a simple, straightforward, honorable course to pursue. He has no need of making a narrative of facts or arguments of protest; let him come forward into court, declaring that he is willing to obey the writ issued by this court; and when he has done that, in the estimation of the judge, he is purged of his contempt.

Nothing on his part of personal offence was evinced to the court; his demeanor was entirely respectful; but he failed to obey the writ which the law issued to him; and when he has obeyed that writ, it will be the duty of this court to free him. What is understood by 'purgation' is not simply a mere form of words. It matters not about that, provided he received, from the party who is in contempt for having disobeyed the process of the court, the assurance that he is now prepared to obey such process, and, until he is prepared to announce his disposition to obey, he could not hear him upon any other subject which asserts that the court has erred either in point of fact or law, or has exercised a jurisdiction which does not belong to it. He said he would hear the counsel upon the question whether the court can legally hear any other petition than the one of purgation.

The respondent's counsel then proceeded to argue the right of the court to hear a petition, other than of purgation, from Passmore Williamson.

Mr. Meredith said he had found nothing in the authorities, either English or American, where persons were held guilty of a contempt in responding to a writ of _habeas corpus_ unless the return was evasive. He referred to a case in 3 Mason, where, in a return to a writ before Judge Story, there was clearly an evasion shown on the face of the return.

Under these circumstances, Judge Story declared that the course of practice was to propound interrogatories and compel the respondent to disclose more fully. Mr. M. submitted whether it was not proper to subject the petitioner in this case to a further questioning. He could not find in English or American books any other course.

Mr. M. supposed that the respondent was committed until he should answer interrogatories. Why had they not been propounded in the form that the court might think proper to put them? No case could be shown in which a defendant was to be committed for contempt, until he presented a prayer to have interrogatories propounded to him. How is he to answer what has not been filed?

According to the books, the defendant may come into court at any time, and take advantage of an omission to file interrogatories within four days. If another view should be taken by the court, he would then ask that an order be made to show the defendant what he was to do to rid himself of the contempt.

Judge Kane said that the defendant could make a declaration, that he was now ready to answer interrogatories.

Mr. Meredith asked that the court make an order submitting certain interrogatories, such as it would deem sufficient, to the prisoner, the proper answers to which would be enough to purge him of the contempt.

The court then said, 'In some of the cases mentioned we know that the party adjudged to be in contempt submitted himself to interrogatories, either by writing or _per se_. I see no difficulty in the way of the court's giving this decision in the form of an order.

'The suggestion of the counsel now has frequently been intimated by the court. The prisoner might at any time, under a proper application, have been before the court. If there was a misunderstanding of the position of the case by the counsel for Mr. Williamson, it is a matter of sincere regret to me.'

Mr. Meredith said he could not find any case of petition that interrogatories should be filed, in any of the English books.

_Judge Kane._--The gentleman, Mr. Williamson, is now recusant, and I often think that forms _sometimes_ have meaning and I cannot interfere otherwise than to say as I have said above.

_Mr. Meredith._--I can enlarge the remark and say that forms _always_ have meaning. He argued that the purging interrogatories must be filed. If not filed, the party was entitled to his discharge. He argued from the 'Chancery Practice' of Smith, that the defendant ought only to be imprisoned until he shall have properly answered the interrogatories put to him.

Mr. Van Dyke, the district attorney, then said that the question now was whether a person, in contempt, had any standing in court whatever. So far as Mr. Williamson is concerned, he has no standing. The argument of the gentlemen on the other side must be taken as arguing against the adjudication of this court. How far can a man in contempt come into court and purge that contempt? How did the counsel get over the fact, that his client was in contempt? He must first submit himself to the court by asking to be permitted to purge himself of contempt.

Mr. Meredith closed the argument, and the proceeding was closed by an entry on the part of Judge Kane of the following order on the record.

_The United States_ v. _Williamson_. And now, October the 29th, 1855, the court having heard argument upon the motion for leave to read and file among the records, in this case, a certain paper writing purporting to be the petition of Passmore Williamson, and having considered thereof, do refuse the leave moved for, inasmuch as it appears that the said Passmore Williamson is now remaining in contempt of this court, and that by the said paper writing he doth in no wise make purgation of his said contempt, nor doth he thereby pray that he may be permitted to make such purgation; wherefore the said Passmore Williamson hath not at this time a standing in this court.

To the end, however, that the said Passmore Williamson may, when thereunto minded, the more readily relieve himself of his said contempt, it is ordered that whenever by petition, in writing, to be filed with the clerk, Passmore Williamson shall set forth, under his oath or solemn affirmation that 'he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogations as may be addressed to him by the court, touching the matters heretofore _legally_ enquired of by the writ of _habeas corpus_ to him directed, at the relation of John H. Wheeler,' then the marshal do bring the said Passmore Williamson before the court, if in session, or if the court be not in session, then before the judge at his chambers, to abide the further order of the court in his behalf. And it is further ordered that the clerk do furnish copies of this order to the said Passmore Williamson, and to the attorney of the United States, and to the marshal.

Under this order Williamson presented the following petition:

_United States of America_ v. _Williamson, District Court of the
United States, Eastern district of Pennsylvania_.

_To the Honorable the Judge of the District Court of the United States
for the Eastern district of Pennsylvania:_

The petition of Passmore Williamson respectfully showeth: That he
desires to purge himself of the contempt because of which he is now
attached, and to that end is willing to make true answers to such
interrogatories as may be addressed to him by the court, touching the
matter heretofore inquired of him by the writ of _habeas corpus_ to
him directed at the relation of John H. Wheeler. Wherefore he prays
that he may be permitted to purge himself of said contempt by making
true answers to such interrogatories as may be addressed to him by the
honorable court touching the premises.

P. WILLIAMSON.

Affirmed and subscribed before me, Nov. 2, 1855.

CHARLES F. HEAZLITT, U. S. Com.

Judge Kane hesitated to receive this petition because it did not conform to his order by containing the word _legally_, before the phrase "inquired of," (thus confirming the legality of the proceedings under the original writ of _habeas corpus_ directed to Williamson.) But finding that Williamson was resolved to make no such concession, Judge Kane finally concluded to receive the petition, and made the following reply to it:

'PASSMORE WILLIAMSON: The court has received your petition, and, upon consideration thereof, have thought right to grant the prayer thereof. You will therefore make here in open court your solemn affirmation, that in the return heretofore made by you to the writ of _habeas corpus_, which issued from this court at the relation of John H. Wheeler, and in the proceedings consequent thereupon, you have not intended a contempt of this court or of its process. Moreover, that you are now willing to make true answers to such interrogatories as may be addressed to you by the court, touching the premises inquired of in the said writ of _habeas corpus_.'

The required affirmation was then made in the form dictated by the judge.

Mr. Van Dyke, the district attorney, then submitted an interrogatory in writing, which was not read aloud at that time.

Mr. Gilpin said Mr. Williamson was perfectly willing to answer the interrogatory submitted by the district attorney, but as he did not know what other interrogatories might follow this, he thought it best that it and its answer should be filed.

Mr. Van Dyke said he was willing either to file the interrogatory or to submit it for an immediate reply.

Mr. Gilpin and Judge Kane both remarked that they had understood the district attorney to intimate, that if the question propounded was answered in the affirmative, he would be satisfied. The court further said, that it was for the petitioner to make his election whether or not the interrogatories and the replies should be filed.

After consultation with his counsel, the petitioner preferred that the questions and answers should be filed.

The court directed that the interrogatories should be filed.

Mr. Gilpin then read the interrogatory that had been propounded, and the reply of Mr. Williamson.

The interrogatory was as follows:

'Did you at the time of the service of the writ of _habeas corpus_, at the relation of John H. Wheeler, or at any time during the period intervening between the service of said writ and the making of your return thereto, seek to obey the mandate of said writ, by bringing before this honorable court the persons of the slaves therein mentioned? If to this interrogatory you answer in the affirmative, state fully and particularly the mode in which you sought so to obey said writ, and all that you did tending to that end.'

The reply made was as follows:

'I did not seek to obey the writ by producing the persons therein mentioned before the court, because I had not, at the time of the service of the writ, the power over, the custody or control of them, and, therefore, it was impossible for me to do so. I first heard of the writ of _habeas corpus_ on Friday, July 20, between one and two o'clock A. M., on my return from Harrisburg. After breakfast, about nine o'clock, I went from my house to Mr. Hopper's office, when and where the return was prepared. At ten o'clock I came into court, as commanded by the writ. I sought to obey the writ by answering it truly; the parties not being in my possession or control, it was impossible for me to obey the writ by producing them. Since the service of the writ I have not had the custody, possession or power over them; nor have I known where they were, except from common rumor, or the newspaper reports in regard to their public appearance in the city or elsewhere.'

Some discussion arose between the district attorney and the counsel of Mr. Williamson. Mr. Van Dyke contended that the reply of the defendant was evasive and contradictory. The judge said the difficulty, he thought, could be easily overcome by amending the answer, and at the suggestion of the court it was amended in the following manner:

'I did not seek to obey the writ by producing the persons in the writ mentioned before this court. I did not seek, because I verily believed that it was entirely impossible for me to produce the said persons, agreeably to the command of the court.'

This answer was then accepted by the court and ordered filed.

Mr. Van Dyke then submitted another interrogatory, the substance of which was, whether or not Mr. Williamson had been guilty of mental reservations in his reply to the first interrogatory?

The court overruled this interrogatory as superfluous and improper.

Mr. Van Dyke withdrew this interrogatory and offered another, which was also overruled by the court, on the ground that it led to such replies as had already been objected to by the district attorney.

Mr. Van Dyke also withdrew this question.

Judge Kane then remarked that the district attorney had been invited to aid the court in this case, but that he would bear in mind that his relation to Mr. Wheeler was now suspended. This was only an inquiry as to what injury had been done the process of the court.

Mr. Van Dyke said he was aware of the position he occupied.

Judge Kane then said: 'The contempt is now regarded as purged and the party is released from custody. He is now reinstated in the position he occupied before the contempt was committed. Mr. Williamson is now before me on the return to the writ.'

Mr. Van Dyke then arose and addressed the court.

After Mr. Van Dyke had concluded, Mr. Meredith inquired: 'Is Mr. Williamson discharged?'

Judge Kane replied, 'He is. I understand from the remarks of the district attorney, that a _nolle prosequi_ has been entered in the case in this court.'

The court then adjourned. Mr. Williamson was congratulated by his friends on his restoration to liberty.[159]

FOOTNOTES:

[1] The German _graf_, for which the Latin _comes_ (in English, _count_ or _earl_) was employed as an equivalent, is a form of the same word. The law Latin for sheriff is _vice-comes_, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl.

[2] See Forsyth's _History of Trial by Jury_, ch. iv. sec. 4.

[3] History of England, Appendix, I.

[4] The decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal.

[5] History of England, Appendix, II.

[6] We may observe that even at present, whether in England or America, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities.

[7] In the king's absence--and the Anglo-Norman kings were often absent on visits to their continental dominions--this chief justiciary acted in all respects as the king's substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. Such was the case with Ranulphus de Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise in Latin, _On the Laws and Customs of the Kingdom of England_, is the oldest book of the common law. He went with Richard I. on the third crusade, and was killed at the siege of Acre.

[8] It might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties.

[9] Not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king's courts, by the writ of _pone_ and others.

[10] Originally, and down to a comparatively recent period, the Inns of Court were real schools, "readers" or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. Now, the examination is a mere form, and the student seeks instruction where he pleases. Even the nominal term of study has been reduced to five, and in some cases to three years.

[11] This distinction between attorneys and barristers, though still in full vogue in England and in several of the British colonies, is not recognized in the United States, where, indeed, it never had but a feeble and transient existence.

[12] Down to the period of the reformation the abbots of the greater monasteries sat also in this house.

[13] If the Lords, says Campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. It certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them.

[14] Hence the necessity of venue, that is, the allegation in all declarations and indictments of some place in some county where the matter complained of happened, in order to a trial by a jury of the vicinage. In personal actions this necessity of trying a case in the county where the transaction occurred was got rid of by first setting out the true place of the transaction, and then alleging under a _videlicet_ a venue in the county where the action was brought, which latter allegation the courts would not allow to be disputed. But in criminal proceedings and real actions the necessity of a trial in the county where the offence was committed or the land lies still continues.

The origin of the jury in a body of neighbors who decided from their own knowledge will seem less remarkable when we recollect that by the customs of the Anglo-Saxons all sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. See Palgrave's _English Commonwealth_, vol. i. p. 213.

[15] See Forsyth's _Trial by Jury_, ch. x. sec. 1.

[16] Down to the time of Elizabeth _all_ cases occurring in Middlesex county, in which Westminster lies, were thus tried in bank.

[17] In London and Middlesex four sessions were held a year; in the four northern counties only one.

[18] This history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the District Courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members.

[19] The appeal from the English colonial courts to the king in council--the appeal cases being heard and decided by a committee of the privy councillors learned in the law--is another remnant of the old system, in which the constitution of the ancient Aula Regis has been very accurately preserved.

[20] Both these courts proceeded according to the forms of the civil law, and without a jury. But occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of Henry VIII. the trial of all maritime felonies before the Admiralty Court was directed to be by jury.

[21] Hyde, (afterwards Lord Clarendon,) himself a lawyer, by whom the usurpations of this court were brought to the notice of Parliament, stated that more damages had been given by the earl marshal in his days, for words of supposed defamation, of which the law took no notice, than by all the courts of Westminster Hall during a whole term.

[22] The name is sometimes spelt Brabaçon, Brabançon, Brabason, and Brabanson.

[23] Hume, who designates them "desperate ruffians," says "troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another; they often acted in an independent manner, and under leaders of their own. The greatest monarchs were not ashamed, on occasion, to have recourse to their assistance; and as their habits of war and depredation had given them experience, hardiness, and courage, they generally composed the most formidable part of those armies which decided the political quarrels of princes."--Vol. i. 438. In America we have no mercenary soldiers, but plenty of mercenary politicians, almost as much to be dreaded.--_Ed._

[24] They were removed because, during the king's absence on the continent, they had been guilty of taking bribes, and other misdemeanors. Of De Wayland, one of their number, and the first chief justice of the Common Pleas, Lord Campbell gives the following account: When arrested, on the king's return from Aquitaine, conscious of his guilt, he contrived to escape from custody, and, disguising himself in the habit of a monk, he was admitted among friars-minors in a convent at Bury St. Edmund's. However, being considered a heinous offender, sharp pursuit was made after him, and he was discovered wearing a cowl and a serge jerkin. According to the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. At the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. Still it would have been deemed sacrilegious to take him from his asylum by violence; but the lord chief justice preferred surrendering himself to perishing from want. He was immediately conducted to the Tower of London. Rather than stand a trial, he petitioned for leave to abjure the realm; this favor was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the crown. Having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side at Dover, he was put on board a ship and departed to foreign parts. He is said to have died in exile, and he left a name often quoted as a reproach to the bench till he was superseded by Jeffreys and Scroggs.

[25] That is, in the ordinary discharge of his duties. His attempt to take away the liberties of the Scotch we shall presently see.--_Ed._

[26] Just like our northern candidates for the presidency, and the dough-face politicians who contrive to get chosen to Congress by northern constituencies, whose rights they then barter away and betray.--_Ed._

[27] This is the very ground upon which it is attempted, now, to justify the repeal of the Missouri prohibition of slavery, while Brabacon's defence of English judges in Scotland is a counterpart to the justification by our federal judges of the authority given to slave-catching commissioners.--_Ed._

[28] May the pending attempts of the Southern States, countenanced and supported by the federal judges, to establish a "superiority" and "direct dominion" over the north, be met and repelled with similar spirit and success!--_Ed._

[29] He had been murdered by a body of insurgent peasants headed by Jack Straw, one of the leaders in Wat Tyler's insurrection.--_Ed._

[30] Some of our federal judges would no doubt like very much to see this rule established among us.--_Ed._

[31] The persistence of Richard II. in the same arbitrary principles of which the advocacy cost Tresilian his life, caused his deposition a few years afterwards, as to which, Lord Campbell observes,--

"While we honor Lord Somers and the patriots who took the most active part in the revolution of 1688, by which a king was cashiered, hereditary right was disregarded, and a new dynasty was placed on the throne, we are apt to consider the kings of the house of Lancaster as usurpers, and those who sided with them as rebels. Yet there is great difficulty in justifying the deposition of James II., and condemning the deposition of Richard II. The latter sovereign, during a reign of above twenty years, had proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppression; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather, was now almost unanimously resolved to submit no longer to his rule."

[32] Fuller, in praising Fortescue and Markham, says, "These I may call two chief justices of the chief justices, for their signal integrity; for though the one of them favored the house of Lancaster, and the other of York, in the titles to the crown, both of them favored the house of Justice in matters betwixt party and party."

[33] A list by no means limited to England, but very much lengthened out in America.--_Ed._

[34] Some of our American advocates of constructive treasons have laid down the law much in the same spirit.--_Ed._

[35] It was, we may suppose, from this charge that Mr. Justice Curtis, of the Supreme Court of the United States, got the law retailed in his charge to the grand jury of the Massachusetts District, in consequence of which indictments were found against Wendell Phillips and Theodore Parker for obstructing the execution of the fugitive slave act--on the ground that certain speeches of theirs in Faneuil Hall against that statute "referred to a purpose" and "incited to an act" of resistance to it, thereby making their expression of opinion criminal.--_Ed._

[36] The recent claim set up in America for legislative supremacy over conscience--a claim contended for by so many of our leading lawyers and divines--is not less blasphemous and outrageous than this claim of Henry VIII., and belongs to the same category.--_Ed._

[37] This would hardly be allowed by some of our American juridical deniers and deriders of the "higher law." It is hard to distinguish a law (such as the fugitive slave act) which sets the moral sentiment at defiance, from a law that God shall not be God.--_Ed._

[38] One striking instance, among a thousand, both old and new, how little the so much vaunted decisions of courts virtually amount to. Decisions that are to stand, can only stand upon their own inherent rectitude and reasonableness, and not upon the authority of those who make them.--_Ed._

[39] Some of our American judges who have of late attained a very unenviable public character have also the reputation of being virtuous and amiable in private life.--_Ed._

[40] Noy at this time was of the popular party. He afterwards went over to the court, and was made attorney general.--_Ed._

[41] Similar pretences of respect for law and popular rights often serve as preface here in America to judgments as atrocious as that of Chief Justice Hyde.--_Ed._

[42] This is the universal excuse for all sins, whether of omission or commission, on the part of courts who pay but little regard to Bishop Burnet's sensible observation that a precedent against reason "signifies no more but that the like injustice has been done before."--_Ed._

[43] Though the lawyers, both in England and America, have long since abandoned the pretence, so impudently maintained by Hyde, of a right in the executive authorities to imprison for contempt, into the ground and nature of which the courts had no right to inquire, they still claim for themselves and for one another--at least in Pennsylvania--a like right, and insist with the same unction upon the absolute necessity of trusting "the courts" in these matters, and of relying upon their "mercy." See, in the Appendix, No. 3, the opinion of the Supreme Court of Pennsylvania, as delivered by Judge Black, of which the insolent conclusion was evidently borrowed from the above opinion of Chief Justice Hyde.--_Ed._

[44] This celebrated lawyer, who had succeeded Fleming as chief justice of the King's Bench, had been, as well as Crewe, turned out of office after holding the place for three years, because he would not allow the government to interfere with his administration of justice. He was now the leader of the popular party in the House of Commons.--_Ed._

[45] We have had recent striking instances in America of the same thing in some of the "misconstructions" placed by judges on the laws in restraint of drunkenness and liquor selling.--_Ed._

[46] Like those given by several federal judges in support of the fugitive slave act.--_Ed._

[47] Noy had begun, like Brampston, a flaming patriot, but, like him and so many other lawyers, had been bought over to the side of power by the hope of promotion, and being made attorney general, had advised the issue of the writs for ship money.--_Ed._

[48] Cro. Car. 403. These forms are no longer used. The chief justice is now sworn in privately before the chancellor; and without any speechifying he enters the court and takes his place on the bench with the other judges. But in Scotland they still subject the new judge to trials of his sufficiency; while these are going on he is called lord probationer; and he might undoubtedly be plucked if the court should think fit.

[49] This is exactly the sort of judges from whom we in America have so much to fear.--_Ed._

[50] We have seen in America similar attempts to stop counsel from exposing the unsoundness of judicial opinions given in support of the fugitive slave act.--_Ed._

[51] This is the very doctrine lately revived, in a little different shape, by some of our American divines--that whatsoever the legislative power in its conscience thinks it may require, we ought to yield.--_Ed._

[52] Some of our American federal judges are in the habit of declaiming much in the same style against abolitionists--who, indeed, may be considered as occupying a position in our present affairs in many respects parallel to that of the English Puritans in the times of Charles I.--_Ed._

[53] Having once refused to hear counsel against ship money, he now undertook to square the account by refusing to hear counsel for it.--_Ed._

[54] See life of Hyde, ante, p. 97.

[55] This supposed inability of the king to do wrong has in America among a certain class been transferred to the federal government, which represents the royal authority of the English.--_Ed._

[56] 2 Bl. Com. 69. Compulsory knighthood was abolished by the Long Parliament, 16 Car. I. c. 20.

[57] Their decisions are still of as much authority on legal questions as those of courts sitting under a commission from the crown; and they were published with the sanction of the chancellor and all the judges in the reigns of Charles II. and James II.

[58] It is doubtless a like mixture of motives that prompts just now the conduct of some of our American lawyers.--_Ed._

[59] Charles II., in his _Declaration_ from Breda, had promised that he should "proceed only against the immediate murderers of his royal father."

[60] In answer to the address of the two Houses of the Convention Parliament to spare the lives of Vane and Lambert, the lord chancellor reported, "His majesty grants the desire of the said petition;"--the ancient form of passing acts of Parliament. The ultra Cavalier House of Commons which followed desired Vane's death, but could not alter the law or abrogate the royal promise.

[61] In his younger days, before the civil war, Sir Henry Vane had been among the early emigrants to Massachusetts, and as governor of that colony had borne a part in some remarkable transactions there.--See Hildreth's _History of the United States_, vol. i. ch. ix.

[62] A fortress on the south shore of the English Channel, taken by Cromwell from the Spaniards, and by Charles II. sold at this time to Louis XIV. of France.

[63] So Bacon, better at precept than at practice, in his advice to Sir George Villars, requires in judges these three attributes--they must be men of courage, fearing God, and hating covetousness: an ignorant man cannot, a _coward_ dare not be a good judge. On the American bench we have too many cowards.--_Ed._

[64] The following dialogue occurred after the verdict:--

_Prisoner._--I most humbly beseech your lordship to remember my condition, (he had before stated himself to be the father of nine small children,) and intercede for me.

_Lord Hyde._--I would not intercede for my own father in this case, if he were alive.

[65] This practice of putting questions to the prisoner intended to intimidate him, to involve him in contradictions, or to elicit from him some indiscreet admission, had ceased during the Commonwealth, but was revived by the new royal judges.

[66] This was the same doctrine afterwards attempted to be maintained by Lord Mansfield, but overruled by a declaratory act of Parliament.

[67] An American specimen of this style of judicial decision may be found in Judge Grier's way of speaking on the bench about Abolitionists.--_Ed._

[68] 6 State Trials, 701-709.

[69] 2 Hale, P. C. 158.

[70] The above passage enclosed in brackets has been added by the editor. Our American judges, more subtle than their predecessors, instead of fining juries for not rendering verdicts according to directions, have introduced the practice of questioning jurors beforehand, and not allowing them to sit unless they pass a satisfactory examination.--_Ed._

[71] This was an expensive residence built by Clarendon, to which the populace gave that name, under the unfounded idea that the expense of it was defrayed out of bribes received for consenting to the sale of Dunkirk.--_Ed._

[72] This has been from great antiquity the decoration of the English chief justices. Dugdale says it is derived from the name of St. Simplicius, a Christian judge, who suffered martyrdom under the Emperor Diocletian.--_Ed._

[73] Among these was, "whether the act of severing the head of Charles I. from his body could be alleged to have been committed in his own lifetime," and "whether it should be laid as against the peace of the late or of the present king." Judge Mallet made the confusion more confounded by maintaining that by the law of England a day is indivisible; and that, as Charles II. certainly was our lawful king during a part of that day, no part of it had been in the reign of Charles I.

[74] This case, thus characterized by Lord Campbell, served as foundation for the remarkable attempt recently made among us to convert opposition to the fugitive slave act into high treason. This bloody idea was first started by George T. Curtis, a slave-catching commissioner of Massachusetts, in his telegraphic despatch to Mr. Webster, giving an account of the rescue at Boston, by a number of colored men, from the hands of the U. S. marshal, of a man named Shadrach, who had been seized on one of Commissioner Curtis's warrants as a fugitive slave.

Not long after, in September, 1851, a Maryland slaveholder named Gorsuch obtained from the notorious Edward D. Ingraham, the Philadelphia slave-catching commissioner, warrants against four alleged fugitive slaves. He proceeded with an armed party and a deputy marshal to Christiana, and besieged a house in which the slaves were said to have taken refuge. Intelligence had been received of the approach of the party, and the slaves manfully resolved to defend themselves, and, if possible, to achieve their freedom. Some of their colored friends gallantly came to their aid and generously shared their danger. Gorsuch, the slave-hunter, and the marshal entered the house, but were repulsed, each party firing at the other, but, as appears, without effect. The besiegers called for assistance, and meeting Caspar Hanway, a white man, on horseback, the marshal, as authorized by the fugitive law, commanded his aid in arresting the slaves. Mr. Hanway, as became a republican and a Christian, refused obedience to the infamous mandate. In the mean time the negroes made, it would seem, a sortie, advancing on the enemy. Hanway called to them _not to fire_. His exhortation was unheeded. Gorsuch was shot dead, another was wounded, and the residue of the slave-catchers sought safety in flight.

At the next meeting of the United States District Court for the Eastern District of Pennsylvania, this case was brought to the notice of the grand jury by Judge Kane.

After reciting the facts as they appeared in the newspapers, he added, that it was reported "that for some months back, gatherings of people, strangers as well as citizens, have been held from time to time in the vicinity of the place of the recent outrage, at which exhortations are made and pledges interchanged to hold the law for the recovery of fugitive slaves as of no validity, and to defy its execution." In other words, anti-slavery meetings had been held in Lancaster county, as in other parts of the free states, and in these meetings one of the most detestable acts of modern legislation had been denounced as cruel and unjust, and the people in attendance had expressed their determination not to participate in slave hunts.

"If," said the judge; "the circumstances to which I have adverted [viz: the riot at Christiana and the anti-slavery meetings] have in fact taken place, they involve the highest crime known to the law." And what crime is that? Treason. And what is treason? The judge answers, "Levying war against the United States." And what had the affair at Christiana to do with war against the United States? Again the judge replies, "Any combination forcibly to prevent or oppose the execution or enforcement of a provision of the Constitution or of a public statute, if accompanied by an act of forcible opposition in pursuance of such combination," is embraced in the expression "levying war against the United States," as used in the constitutional definition of treason. Hence, four negroes combining to maintain their newly-recovered liberty by forcibly resisting the efforts of a slave-catcher, are guilty of levying war against the United States.

But the judge's patriotic zeal against traitors did not confine itself to the enemies of the United States actively engaged in the Christiana campaign. Here, indeed, he went far beyond even the infamous Judge Kelynge. "It is not necessary," so he told the grand jury, "to prove that the individual accused was a direct personal actor in the violence, nor is even his personal presence indispensable. Though he be absent at the actual perpetration, yet if he directed the act, devised, or knowingly furnished the means for carrying it into effect, or instigated others to perform it, he shared their guilt. In treason, there are no accessories." From all this the grand jury were to understand that anti-slavery men, by their doctrines of human rights and their denunciations of the fugitive act, instigated fugitive slaves to defend themselves; hence, as, in treason, all are principals, however remotely and indirectly concerned, these abolition instigators had also levied war, were traitors, and might be legally hung. To strengthen this intended impression on the minds of the jury, the judge launched out into an invective against the abolitionists, concluding with the very significant and smart admonition, "While he (the abolitionist) remains within our borders he is to remember that successfully to instigate treason is to commit it."

What is still more astonishing than even this charge, the grand jury, to whom it was delivered, showed themselves such ready receivers of its infamous and atrocious doctrines as to bring into court thirty bills for high treason, against as many different individuals, founded upon it.

Of these thirty indictments, the only one brought to trial was that against Caspar Hanway, above mentioned. The only acts proved against this man, in support of the charge of having "traitorously levied war against the United States," were, 1. having declined to assist the marshal in arresting the fugitives; and 2. in calling to the negroes and urging them _not_ to fire.

Judge Grier presided on the trial, and notwithstanding his vulgar invectives against the abolitionists, found himself compelled to charge the jury, even in the presence of Judge Kane, that "a number of fugitive slaves may infest a neighborhood, and may be encouraged by their neighbors in combining to resist with force and arms their master, or the public officer who may come to arrest them; they may murder or rob them; they are guilty of felony and liable to punishment, but not as traitors." The prisoner was of course acquitted, and all the other indictments abandoned; and thus ended in shame and ridicule Judge Kane's ingenious device for hanging all who resisted the fugitive slave law. Yet this same man, at a Kossuth meeting at Philadelphia, made a rampant filibustering speech in behalf of oppressed nations, quoting with exultation the words of Vattel, "When a people from good reasons take up arms against an oppressor, justice and generosity require that brave men should be assisted in the defence of their liberties."--_Ed._

[75] See ante, pp. 150, 151.

[76] And yet it is upon the authority of these worthless reports that some important American decisions have been based. See 13 _Mass. Reports_, 356, Commonwealth v. Bowen; also the preceding note.--_Ed._

[77] For an account of Chiffinch, see the Life of Jeffrey, p. 278.

[78] Our recent American history presents a curious parallel to the English Popish plot delusion and the use made of it by the unscrupulous politicians of that age. The basis of that delusion was the well-founded horror which the English people entertained for the Popish religion as hostile to their liberties. The immediate allegation upon which it rested was, that the Papists had formed a conspiracy to assassinate Charles II., and so to open the way to the throne for the Duke of York, (afterwards James II.,) a professed Papist.

The suggestion of this plot, founded merely on vague suspicions,--(if indeed it was not, as some writers think, purposely started for political objects,)--was taken hold of by the unprincipled Shaftesbury, who from having been an ultra courtier, had become the leader of the country party. He sought to use it to stimulate the people against the court, and to prepare the way for his project of excluding the Duke of York from succession to the throne. He expected that the court would oppose this delusion, and so would make itself still more unpopular. But Charles II., no less unprincipled than Shaftesbury, was quite as ready as he to play at any dangerous game; and that he might gain credit for Protestantism, (though all the while secretly a Papist,) he resolved to humor the delusion to the utmost, and to allow it full play against its unfortunate victims.

So here in America, the democrats, (so called, but in fact slavery extenders,) taking advantage of the very strong and well-founded popular sentiment in favor of the Union, and seeking to recommend themselves to favor as a national party, hit upon the similar expedient of accusing the abolitionists of a plot to dissolve the Union, part of the odium of which they hoped to throw upon their political opponents, the so-called whigs, by accusing them as screeners and favorers of the abolitionists. The whigs, however, in imitation of the policy of Charles II., and under the leadership of the late Daniel Webster, sought to turn this pretended plot to their own advantage, by coming out still more furious Union-savers than even the democrats, and denouncing the abolitionists with still greater fury--thus working up the public mind into a terror at the imaginary danger of the Union, much like that of the English people at the time of the Popish plot. We, too, have had our trials for treason, (see ante, p. 158-161;) and if we have had no bloody executions, it has not been for want of Scroggses, both on and off the bench.--_Ed._

[79] For this he probably received a good sum of money.

[80] "By his zeal in the Protestant cause he gained for a while a universal applause throughout the whole nation."--_Athenæ_, iv. 116.

[81] This profession of contempt for "vulgar noise" has lately been repeated in America by a judge whose manner and bearing on the bench come as near those of Scroggs as the present times will bear.--_Ed._

[82] From this asseveration a suspicion arises of pecuniary corruption; but I believe that Scroggs was swayed in this instance by a disinterested love of rascality.

[83] Roger North, whose curious life of his brother is largely quoted in this memoir.--_Ed._

[84] At that time not more than fifty volumes were required. Now, unfortunately, a law library is "_multorum camelorum onus_," (a load for many camels.)

[85] This sort of practice on the weakness of judges, keeping them in good humor by flattery and complaisance, may possibly, as the text implies, be abandoned in England, but in America it is still sufficiently common.--_Ed._

[86] The distinguishing badge worn by the king's counsel. The barristers wear stuff gowns. The serjeants, (the highest rank of practitioners,) enjoying a monopoly of the practice of the Court of Common Pleas, which originally had exclusive cognizance of all civil actions, have or had, as their badges, a coif, or black velvet cap, (for which a wig was about this time substituted,) and parti-colored robes.--_Ed._

[87] The hours then kept must have been very inconvenient for lawyers in Parliament, as all the courts and both houses met at eight in the morning and sat till noon.

[88] This early rising rendered it necessary for him to take "a short turn in the other world after dinner."

[89] Roger assures us he did not purloin any part of the treasure, for which he takes infinite credit to himself.

[90] This was the title taken by Finch on promotion to the great seal. Nottingham is greatly lauded by Blackstone and other writers on jurisprudence as a "consummate lawyer," and as the father of the modern English equity system. His abilities were unquestionable, but his political career, like that of so many other "consummate lawyers," has some very black spots.--_Ed._

[91] Here we have one of many English precedents of assault upon the right of petition--a thing by no means unknown in our American politics.--_Ed._

[92] The same Parliament had already impeached Scroggs. See ante, p. 180.

[93] Here again is the old pretence of "levying war," under which it has been attempted with us to convert hostility to the fugitive slave act into treason. See ante, p. 158.--_Ed._

[94] Pemberton, though well aware that, to justify the grand jury in finding an indictment, a _prima facie_ case of guilt must be made out, instructed them that "a probable ground of accusation" was sufficient.--_Ed._

[95] By this word "pension," I conceive we are to understand _salary_ while the lord keeper was in office, and not, as might be supposed, an allowance on his retirement.

[96] Pemberton had been appointed to succeed Scroggs as chief justice of the King's Bench, but not being found quite serviceable enough, was now removed into another court.--_Ed._

[97] "Sir F. North being made lord keeper on the death of the Earl of Nottingham, the lord chancellor, I went to congratulate him. He is a most knowing, learned, and ingenious person; and, besides having an excellent person, of an ingenuous and sweet disposition, very skilful in music, painting, the new philosophy, and political studies."--_Mem._ i. 513. Judge Kane is said to be quite an accomplished person.--_Ed._

[98] The principal obstacle to law reform in America is the pecuniary interest which the lawyers think they have in keeping up old abuses.--_Ed._

[99] Bishop Burnet, the historian.

[100] See beyond, life of Jeffreys, p. 302.

[101] An account of Guilford's unavailing attempt to prevent this appointment will be found in the life of Wright, chap. xix.--_Ed._

[102] It is curious that Roger gravely states that "he was dropped from the tory list and turned trimmer."--_Life_, i. 404.

[103] Life, ii. 179. It should be recollected that, at this time, the council met in the afternoon, between two and three--dinner having taken place soon after twelve, and a little elevation from wine was not more discreditable at that hour than in our time between eleven and twelve o'clock at night.

[104] James and Jeffreys setting themselves up as the special advocates of toleration, (with a view to the introduction of Popery,) is like our American slaveholders putting themselves forward as advocates of the rights of property and as special democrats, for the purpose of upholding slavery, based as slavery is on principles at war with the fundamental idea of property and democracy.--_Ed._

[105] Life, ii. 150, 153, 334.

[106] Lord Coke lays down, that upon such an occasion there ought to be a warrant by advice of the Privy Council, as in 32 H. 8, to certain physicians and surgeons named, authorizing them to administer to the royal patient "potiones, syrupos, confectiones, laxitivas medicinas, clysteria, suppositoria, capitis purgea, capitis rasuram, fomentationes, embrocationes, emplastra," &c.; still, that no medicine should be given to the king but by the advice of his council; that no physic should be administered except that which is set down in writing, and that it is not to be prepared by any apothecary, but by the surgeons named in the warrant.--4 _Inst._ 251. These were the precautions of times when no eminent person died suddenly without suspicion of poison. Even Charles II. was at first said to have been cut off to make way for a Popish successor, although, when the truth came out, it appeared that he had himself been reconciled to the Roman Catholic church.

[107] See the speech at full length. Life, ii. 192. There is nothing in it very good or very bad.

[108] Evelyn tells us that this was the first rhinoceros ever introduced into England, and that it sold for two thousand pounds.

[109] We may add--for his tory principles, and for the loss of America to the British crown.--_Ed._

[110] Saunders was very ingenious; but in the invention of charges to serve the turn of tyranny he has his match in some of our American lawyers.--_Ed._

[111] This is not the William Jones mentioned in the life of Lord North, but a person of a different character, one Edward Jones.--_Ed._