Chapter II: Look Next at the Mode of Operation Hitherto Pursued by This (2)

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

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

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

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

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

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

But how should he be punished? Thurlow determined.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Footnote 48: Ibid. 22.]

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

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

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

* * * * *

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

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

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

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

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

[Footnote 54: 1 Jardine, 19.]

[Footnote 55: Ibid.]

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

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

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

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

It has been well said:--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But the matter was brought up in Parliament and discussed by men of a different temper, who frightened the judge by threats of impeachment, and forced the king to agree to the PETITION OF RIGHT designed to put an end to all such illegal cruelty. Before Charles I. would sign that famous bill, he asked Judge Hyde if it would restrain the king "from committing or restraining a subject _without showing cause_." The crafty judge answered, "_Every law_, after it is made, _hath its exposition, which is to be left to the courts of justice to determine_; and although the Petition be granted _there is no fear of [such a] conclusion as is intimated in the question_!" That is, the court will interpret the plain law so as to oppress the subject and please the king! As the judges had promised to annul the law, the king signed it.[66] Charles dissolved Parliament and threw into jail its most noble and powerful members--one of whom, Eliot, never left the prison till death set him free.[67] The same chief justice gave an extrajudicial opinion justifying the illegal seizure of the members,--"that a parliament man committing an offence against the King in Parliament not in a parliamentary course, may be punished after the Parliament is ended;" "that by false slanders to bring the Lords of the Council and the Judges, not in a parliamentary way, into the hatred of the people and the government into contempt, was punishable out of Parliament, in the Star-Chamber, as an offence committed in Parliament beyond the office, and beside the duty of a parliament man."[68] Thus the judges struck down freedom of speech in Parliament.

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

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

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

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

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

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

[Footnote 70: Whitelocke, Memor. 25.]

[Footnote 71: 2 Hallam, 16.]

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

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

[Footnote 72: 2 Hallam, 18.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * * * *

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

1. In 1410 the government made a decree "that whatsoever they were that should rede the Scriptures in the mother tongue, they should forfeit land, catel, body, lif, and godes from their heyres forever, and so be condempned for heretykes to God, enemies to the crowne, and most errant traiters to the land." The next year, in _one day thirty-nine persons were first hanged and then burned for this "crime."_[81]

[Footnote 81: 1 St. Tr. 252.]

2. In 1590, Mr. Udall, a Puritan minister, published a book, "Demonstrations of Discipline," not agreeable to the authorities. He was brought to a trial for a Felony,--not merely a "misdemeanor." The jury were ordered by the judge to find him guilty of that crime if they were satisfied that he published the book,--for the court were to judge whether the deed amounted to that crime! He was found "guilty," and died in jail after nearly three years of cruel confinement.[82]

[Footnote 82: 1 St. Tr. 1271; 1 Neal's Puritans (N.Y. 1844), 190. See 16 Parl. Hist. 1276, where Mr. Dunning says this is the first example of such a charge to a jury.]

3. In 1619 one Williams of Essex wrote a book explaining a passage in the book of Daniel as foretelling the death of James I. in 1621. He inclosed the manuscript in a box, sealed it, and secretly conveyed it to the king. For this he was tried for high treason, and of course executed. "_Punitur Affectus, licet non sequatur Effectus_," said the court, for "_Scribere est agere_," "Punish the wish though the object be not reached," for "writing is doing!"[83]

[Footnote 83: 2 St. Tr. 1085.]

4. In 1664 Mr. Keach, a Baptist, published a "Childs' Instructer, or a New and Easy Primmer," in which he taught the doctrines of his sect, "that children ought not to be baptized" but only adults; "that laymen may preach the gospel." He was brought before Lord Chief Justice Hyde, who after insulting the prisoner, thus charged the grand-jury:--"He is a base and dangerous fellow; and if this be suffered, children by learning of it will become such as he is, and therefore I hope you will do your duty." Of course such a jury indicted him. The "trial" took place before Judge Scroggs; the Jury were at first divided in opinion. "But," said the Judge, "you must agree!" So they found him guilty. He was fined "L20, twice set in the pillory, and bound to make public submission."[84]

[Footnote 84: 7 St. Tr. 687.]

5. In 1679 George Wakeman and others were tried for high treason before Scroggs, whose conduct was atrocious, and several pamphlets were published commenting on the ridiculous and absurd conduct of this functionary, "Lord Chief Justice Scroggs." One Richard Radley in a bantering talk had bid another man "Go to Weal Hall, to my Lord Scroggs, _for he has received money enough of Dr. Wakeman_!" Radley was indicted for "speaking scandalous words of Chief Justice Scroggs." Whereupon at the opening of the court that eminent officer, who did not disdain to wreak public and judicial vengeance on heads that wrought his private and personal grief, made a speech setting forth his magisterial opinions on the liberty of the press. Doubtless this court knows original authority for the opinions they follow; but for your instruction, Gentlemen of the Jury, I will give you the chief things in the judicial speech of Scroggs, Lord Chief Justice of the Supreme Court of England in 1679.[85]

[Footnote 85: 6 St. Tr. 701; see Dunning in 16 Parl. Hist. 1276, _et seq._]

"For these hireling scribblers who traduce it [the fairness
and equality of the trial in which he had been notoriously
unfair and unequal], who write to eat, and lie for bread, I
intend to meet with them another way; for they are only safe
while they can be secret; but so are vermin, so long as they
can hide themselves.... They shall know that the law wants
not the power to punish a libellous and licentious press,
nor I a resolution to exact it. And this is all the answer
is fit to be given (besides a whip) to these hackney
writers." "However, in the mean time, the _extravagant
boldness of men's pens and tongues is not to be endured, but
shall be severely punished_; for if once causes come to be
tried with complacency to particular opinions, and shall be
innocently censured if they go otherwise, public causes
shall all receive the doom as the multitude happen to be
possessed; and at length any cause shall become public ...
at every session the Judges shall be arraigned, the Jury
condemned, and the verdicts overawed to comply with popular
wish and indecent shouts."

"There are a set of men ... that too much approve and
countenance such vulgar ways, ... that embrace all sorts of
informations, true or false, likely or impossible, nay
though never so silly and ridiculous, they refuse none; so
shall all addresses be made to them, and they be looked on
as the only patrons of religion and government!"

His associates chimed in with accordant howl. Puny Judge Jones declared,--