Chapter II: Look Next at the Mode of Operation Hitherto Pursued by This (1)

ENCROACHING POWER, IN OTHER TIMES AND NATIONS, AND IN OUR OWN, SYSTEMATIC CORRUPTION OF THE JUDICIARY.

Here I shall show the process by which that Principle of Slavery becomes a Measure of political ruin to the People.

In substance Despotism is always the same, Spanish or Carolinian, but the form varies to suit the ethnologic nature and historical customs of different people. I shall mention two forms--one to illustrate, the other to warn.

(I.) The open Assumption of Power by military violence. This method is followed in countries where love of Individual Liberty is not much developed in the consciousness of the people, and where democratic institutions are not fixed facts in their history; where the nation is not accustomed to local self-government, but wonted to a strong central power directed by a single will. This form prevails in Russia, Turkey, and among all the Romanic tribes in Europe, and their descendants in America. Military usurpation, military rule is indigenous in France,--where two Napoleons succeed thereby,--in Italy, in Spain, and most eminently in Spanish America. But no people of the Teutonic family for any length of time ever tolerated a usurping soldier at the head of affairs, or submitted to martial arbitrary rule, or military violence in the chief magistrate. It is against our habit and disposition.

Neither Cromwell nor William of Orange could do with the Anglo-Saxon what it would have been impossible not to do with Spaniards or Italians. Even warlike Swiss--Teutonic tribes--will have a government with due process of law, not by the abrupt violence of the soldier. Washington could not have established a military monarchy in America had he been so wickedly disposed. Even William the Conqueror must rule the Saxons by Saxon law.

(II.) The corruption of the acknowledged safeguards of public security. This is attempted in nations who have a well-known love of individual liberty, and institutional defences thereof, the habit of Local Self-government by Democratic Law-making and Law-administering. For example, this experiment has been repeatedly made in England. The monarch seeking to destroy the liberty of the people, accomplishes his violent measure by the forms of peaceful law, by getting the judicial class of men on the side of despotism. Then all the wickedness can be done in the name, with the forms, and by "due process" of law, by regular officers thereof--done solemnly with the assistance of slow and public deliberation.

Gentlemen of the Jury, this is a matter of such importance to the People of America just now, that I must beg you to bear with me while I explain this subtle operation. I will select examples from the history of England which are easy to understand, because her blood is kindred to our own, and the institutions of the two countries are related as parent and child. And besides, her past history affords alike warning and guidance in our present peril.

* * * * *

(I.) The first step in this process of political iniquity is, to appoint men for judges and other officers of the court, who know no law higher than the selfish will of the hand that feeds them, mere creatures of the rest [Transcriber's Note: for 'rest' read 'government'; see Errata].

I will select instances of this from the reign of the Stuart kings and one of their successors, from a period full of melancholy warning to America.

I will begin with James I. (1603-1625), the first King of New England. At his very accession he had high notions of his royal Prerogative, and maintained that all the privileges of the House of Commons were derived from his royal grant. "I am your King," said he, "I am placed to govern you, and I shall [must] answer for your errors." It was quite enough to answer for his own,--poor man. "Let me make the Judges," said he, "and I care not who makes the laws."

Accordingly for judicial officers he appointed such men as would execute his unlawful schemes for the destruction of public liberty. To such considerations was Francis Bacon mainly indebted for his elevation from one legal rank to another, until he reached the seat of the Lord Chancellor. A man whom Villers declared, "of excellent parts, but withal of a base and ungrateful temper, and an arrant knave, yet a fit instrument for the purposes of the government." He did not receive his appointment for that vast, hard-working genius which makes his name the ornament of many an age, but only for his sycophantic devotion to the royal will. Sir Edward Coke was promoted rapidly enough, whilst wholly subservient to the despotic court, but afterwards, though a miracle of legal knowledge, not equalled yet perhaps, he must not be appointed Lord Chancellor on account of "his occasional fits of independence." Chief Justice Ley was one of the right stamp, but it was thought "his subserviency might prove more valuable by retaining him to preside over the Court of King's Bench." "For in making the highest judicial appointments the only question was, what would suit the arbitrary schemes of governing the country."[5] Hobart had resisted some illegal monopolies of the all-powerful Buckingham, and he was "unfit for promotion."

[Footnote 5: 2 Campbell, 372, 374.]

James thought the Prerogative would be strengthened by the appointment of clergymen of the national church, perhaps the only class of men not then getting fired with love of liberty,--and made Williams, Bishop of Lincoln, Lord Keeper, a "man of rash and insolent, though servile temper, and of selfish, temporizing, and trimming political conduct," who at that time had never acted as "a judge except at the Waldegrave Petty Sessions in making an order of bastardy or allowing a rate for the Parish poor," and was "as ignorant of the questions coming before him as the door-keepers of his court." But he was subservient, and had pleased the King by preaching the courtly doctrine that "subjects hold their liberties and their property at the will of the Sovereign whom they are bound in every extremity passively to obey."[6] Men like Fleming and other creatures of the throne, sanctioning the King's abundant claim to absolute power, were sure of judicial distinction; while it was only the force of public opinion which gave the humblest place of honor to such able and well-studied lawyers as would respect the constitutional Rights of the People and the just construction of the laws, and at all hazards maintain their judicial independence. Ecclesiastics who taught that the King "is above the laws by his absolute power," and "may quash any law passed by Parliament," were sure of rapid preferment. Thus Bancroft was promoted; thus Abbot was pushed aside; and for his mean, tyrannical and subservient disposition Rev. William Laud was continually promoted in expectation of the services which, as Archbishop, he subsequently performed in the overthrow of the Liberty of the People. But time would fail me to read over the long dark list of men whose personal shame secured them "official glory."

[Footnote 6: 2 Campbell, 368, 374; 3 Howell State Trials, 824.]

In his address to the Judges in the Star-Chamber in 1616 James gave them this charge, "If there falls out a question which concerns any Prerogative or mysterie of State, _deale not with it till you consult with the King_ or his Council, or both; for they are Transcendent Matters, and must not be slibberly carried with over rash wilfullnesse." "And this I commend unto your special care, as some of you of late have done very much, to _blunt the edge and vaine popular humor of some lawyers at the Barre_, that think they are not eloquent and bold-spirited enough, except they _meddle with the King's Prerogative_." "_That which concerns the mysterie of the King's Power is not lawful to be disputed._"[7] Gentlemen, that was worthy of some judicial charges which you and I have heard.

[Footnote 7: Speache in the Starre-Chamber, London, 1616.]

* * * * *

Charles I. (1625-1659,) pursued the same course of tyranny by the same steps. Coventry could be implicitly relied on to do as commanded, and was made Lord Keeper in 1625. When the question of Ship-money was to be brought forward in 1636, Chief Justice Heath was thought not fit to be trusted with wielding the instrument of tyranny, and accordingly removed; "and Finch, well known to be ready to go all lengths, was appointed in his place." For he had steadfastly maintained that the King was absolute, and could dispense with law and parliament,--a fit person to be a Chief Justice, or a Lord Chancellor, in a tyrant's court, ready to enact iniquity into law. His compliance with the King's desire to violate the first principle of Magna Charta, "endeared him to the Court, and secured him further preferment as soon as any opportunity should occur." So he was soon made Lord Chancellor and raised to the peerage. Littleton had once been on the popular side, but deserted and went over to the Court--he was sure of preferment; and as he became more and more ready to destroy the liberties of the People, he was made Chief Justice, and finally Lord Chancellor in 1641. Lane was a "steady friend of the prerogative," and so was made Attorney-General to the Prince of Wales, and thence gradually elevated to the highest station.

Other Judicial appointments were continually made in the same spirit. Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the government questioned him to ascertain if he were "sound," and were shocked to hear him declare that the King had no right to levy taxes without consent of Parliament, or imprison his subjects without due process of law. He was "immediately dismissed from his office," (1626,) and Sir Nicolas Hyde appointed in his place. By such means the courts were filled with tools of the King or his favorites, and the pit digged for the liberties of the People, into which at last there fell--the head of the King!

* * * * *

Charles II. and James II., (1655-1686,) did not mend the evil, but appointed for judges "such a pack as had never before sat in Westminster Hall." Shaftesbury and Guildford had the highest judicial honors. Lord Chancellor Finch, mentioned already, had been accused by the Commons of High Treason and other misdemeanors, but escaped to the continent, and returned after the Restoration. He was appointed one of the Judges to try the Regicides. Thus he "who had been accused of high treason twenty years before by a full parliament, and who by flying from their justice saved his life, was appointed to judge some of those who should have been his Judges."[8] He declared in Parliament that Milton, for services rendered to the cause of liberty while Latin Secretary to Cromwell, "deserved hanging."[9]

[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.

* * * * *