Such is the record. Now, while I am willing to admit that the want of

jurisdiction should be made clear, I deny that in a case under our _habeas

corpus_ act the party averring want of jurisdiction cannot go behind the

record to establish its non-existence. Jurisdiction, or the absence

thereof, is a mixed question of law and fact. It is the province of fact

to ascertain what the case is, and of law to determine whether the

jurisdiction attaches to the case so ascertained. "And" says the second

section of our act of 1785, "that the said judge or justice may, according

to the intent and meaning of this act, be enabled, by investigating the

truth of the circumstances of the case, to determine whether, according to

law, the said prisoner ought to be bailed, remanded, or discharged, the

return may, before or after it is filed, by leave of the said judge or

justice, be amended, and also suggestions made against it, so that thereby

material facts may be ascertained."

This provision applies to cases of commitment or detainer for any criminal

or supposed criminal matter, but the fourteenth section, which applies to

cases of restraint of liberty "under any color or pretence whatever,"

provides that "the court, judge, or justice, before whom the party so

confined or restrained shall be brought, shall, after the return made,

proceed in the same manner as is hereinbefore prescribed, to examine into

the facts relating to the case, and into the cause of such confinement or

restraint, and thereupon either bail, remand, or discharge the party so

brought, as to justice shall appertain."

The right and duty of the supreme court of a State to protect a citizen

thereof from imprisonment by a judge of a United States court having no

jurisdiction over the cause of complaint, is so manifest and so

essentially necessary under our dual system of government, that I cannot

believe that this right will ever be abandoned or the duty avoided; but,

if we concede, what appears to be the law of the later cases in the

Federal courts, that the jurisdiction need not appear affirmatively, and

add to it that the want of jurisdiction shall not be proved by evidence

outside of the record, we do virtually deny to the people of the State the

right to question the validity of an order by a Federal judge consigning

them to the walls of a prison "without bail or mainprize."

What a mockery to say to one restrained of his liberty, "True, if the

judge or court under whose order you are in prison acted without

jurisdiction, you are entitled to be discharged, but the burden is upon

you to show that there was no jurisdiction, and in showing this we will

not permit you to go beyond the record made up by the party against whom

you complain!"

As the petitioner would be legally entitled, upon the return of the writ,

to establish the truth of the facts set forth in his petition, so far as

they bear upon the question of jurisdiction, we are bound before the

return to assume that the facts are true as stated, and so taking them,

the case is this:

John H. Wheeler voluntarily brought into the State of Pennsylvania three

persons of color, held by him in the State of Virginia as slaves, with the

intention of passing through this State. While on board of a steamboat

near Walnut Street wharf, in the city of Philadelphia, the petitioner,

Passmore Williamson, informed the mother that she was free by the laws of

Pennsylvania, who, in the language of the petition, "expressed her desire

to have her freedom; and finally, with her children, left the boat of her

own free will and accord, and without coercion or compulsion of any kind;

and having seen her in possession of her liberty with her children, your

petitioner (says the petition) returned to his place of business, and has

never since seen the said Jane, Daniel, and Isaiah, or either of them, nor

does he know where they are, nor has he had any connection of any kind

with the subject."

One owning slaves in a slave State voluntarily brings them into a free

State, with the intention of passing through the free State. While there,

upon being told that they are free, the slaves leave their master. Can a

judge of the district court of the United States compel their restoration

through the medium of a writ of _habeas corpus_ directed to the person by

whom they were informed of their freedom? Or, in other words, is it a case

arising under the constitution and laws of the United States?

What article or section of the constitution has any bearing upon the right

of a master to pass through a free State with his slave or slaves? Or,

when has Congress ever attempted to legislate upon this question? I most

unhesitatingly aver that neither in the constitution of the United States

nor in the acts of Congress can there be found a sentence which has any

effect upon this question whatever. It is a question to be decided by the

law of the State where the person is for the time being, and that law must

be determined by the judges of the State, who have sworn to support the

constitution of the State as well as that of the United States--an oath

which is never taken by a Federal judge.

Upon this question of jurisdiction it is wholly immaterial whether by the

law of Pennsylvania a slaveholder has or has not the right of passing

through our State with his slaves. If he has the right, it is not in

virtue of the constitution or laws of the United States, but by the law of

the State, and if no such right exists, it is because the State law has

forbidden it, or has failed to recognize it. It is for the State alone to

legislate upon this subject, and there is no power on earth to call her

to an account for her acts of omission and commission in this behalf.

If this case, by any reasonable construction, be brought within the terms

of the third clause of the second section of article four of the

constitution of the United States, jurisdiction might be claimed for the

federal courts, as then it would be a case arising under the constitution

of the United States, although I believe the writ of _habeas corpus_ is no

part of the machinery designed by Congress for the rendition of fugitives

from labor.

"No person (says the clause above mentioned) held to service or labor in

one State under the laws thereof escaping into another shall, in

consequence of any law or regulation therein, be discharged from such

service or labor, but shall be delivered up on claim of the party to whom

such service or labor may be due." By reference to the debates in the

convention, it will be seen that this clause was inserted at the request

of delegates from southern states, and on the declaration that in the

absence of a constitutional provision the right of reclamation would not

exist unless given by state authority. If it had been intended to cover

the right of transit, words would have been used evidencing such

intention. Happily there is no contrariety in the construction which has

been placed upon this clause in the constitution. No judge has ever so

manifestly disregarded its plain and unequivocal language as to hold that

it applies to a slave voluntarily brought into a free State by his master.

On the contrary, there is abundant authority that such a case is not

within either the letter or the spirit of the constitutional provision for

the rendition of fugitives from labor. Said Mr. Justice Washington, _Ex

parte Simmons_, 6 W. C. C. Reports, 396:--"The slave in this case having

been voluntarily brought by his master into this State, I have no

cognizance of the case, so far as respects this application, and the

master must abide by the laws of this State, so far as they may affect his

right. If the man claimed as a slave be not entitled to his freedom under

the laws of this State, the master must pursue such remedy for his

recovery as the laws of the State have provided for him."

In _Jones_ v. _Vanzandt_, 5 Howard, 229, Mr. Justice Woodbury uses

language equally expressive: "But the power of national law," said that

eminent jurist, "to pursue and regain most kinds of property in the limits

of a foreign government is rather an act of comity than strict right, and

hence as property in persons might not thus be recognized in some of the

states in the Union, and its reclamation not be allowed through either

courtesy or right, this clause was undoubtedly introduced into the

constitution as one of its compromises for the safety of that portion of

the Union which did not permit such property, and which otherwise might

often be deprived of it entirely by its merely crossing the line of an

adjoining state; this was thought to be too harsh a doctrine in respect to

any title to property of a friendly neighbor, not brought nor placed in

another state under state laws by the owner himself, but escaping there

against his consent, and often forthwith pursued in order to be

reclaimed."

Other authorities might be quoted to the same effect, but it is

unnecessary, for if it be not clear that one voluntarily brought into a

state is not a fugitive, no judicial language can ever make him so. Will

we then, for the sake of sustaining this jurisdiction, presume that these

slaves of Mr. Wheeler escaped from Virginia into Pennsylvania, when no

such allegation was made in his petition, when it is expressly stated in

the petition of Mr. Williamson, verified by his affirmation, that they

were brought here voluntarily by their master, and when this fact is

virtually conceded by the judge of the district court in his opinion?

Great as is my respect for the judicial authorities of the federal

government, I cannot consent to stultify myself in order to sustain their

unauthorized judgments, and more particularly where, as in the case before

us, it would be at the expense of the liberty of a citizen of this

commonwealth.

The only remaining ground upon which this jurisdiction can be claimed, is

that it was in a controversy between citizens of different states, and I

shall dismiss this branch of the case simply by affirming--1, that the

proceeding by _habeas corpus_ is in no legal sense a controversy between

private parties; and 2, if it were, to the circuit court alone is given

this jurisdiction. For the correctness of the first position, I refer to

the opinion of Mr. Justice Baldwin in _Holmes_ v. _Jennifer_, published in

the appendix to 14 Peters, and to that of Judge Betts, of the circuit

court of New York, in _Berry_ v. _Mercein et al._ reported in 5 Howard,

103. And for the second, to the 11th section of the judiciary act, passed

on the 24th of September, 1789.

My view of this case had been committed to writing before I had seen or

heard the opinion of the majority of the court. Having heard it hastily

read but once, I may mistake its purport, but if I do not, it places the

refusal of the _habeas corpus_ mainly upon the ground that the conviction

for contempt was a separate proceeding, and that, as the district court

had jurisdiction to punish for contempts, we have no power to review its

decision. Or, as it appears from the record that the prisoner is in

custody upon a conviction for contempt, we are powerless to grant him

relief.

Notwithstanding the numerous cases that are cited to sustain this

position, it appears to me to be as novel as it is dangerous. Every court

of justice in this country has, in some degree, the power to commit for

contempt. Can it be possible that a citizen once committed for contempt is

beyond the hope of relief, even although the record shows that the alleged

contempt was not within the power of the court to punish summarily?

Suppose that the judge of the district court should send to prison an

editor of a newspaper for a contempt of his court in commenting upon his

decision in this very case; would the prisoner be beyond the reach of our

writ of _habeas corpus_? If he would, our boasted security of personal

liberty is in truth an idle boast, and our constitutional guaranties and

writs of right are as ropes of sand. But in the name of the law, I aver

that no such power exists with any court or judge, state or federal, and

if it is attempted to be exercised, there are modes of relief, full and

ample, for the exigency of the occasion.

I have not had either time or opportunity to examine all of the cases

cited, but, as far as I have examined them, they decide this and nothing

more--that where a court of competent jurisdiction convicts one of a

contempt, another court, without appellate power, will not reëxamine the

case to determine whether a contempt was really committed or not. The

history of punishments for contempts of courts, and the legislative action

thereon, both in our State and Union, in an unmistakable manner teaches,

first, the liability of this power to be abused; and second, the

promptness with which its unguarded use has been followed by legislative

restrictions. It is no longer an undefined, unlimited power of a star

chamber character, to be used for the oppression of the citizen at the

mere caprice of the judge or court, but it has its boundaries so

distinctly defined that there is no mistaking the extent to which our

tribunals of law may go in punishment for this offence.

In the words of the act of Congress of 2d March, 1831, "The power of the

several courts of the United States to issue attachments and inflict

summary punishments for contempts of court, shall not be construed to

extend to any cases except the misbehavior of any person or persons in the

presence of said courts, or so near thereto as to obstruct the

administration of justice, the misbehavior of any of the officers of the

said courts in their official transactions, and the disobedience or

resistance by any officer of the said courts, party, jurors, witness, or

any other person or persons, to any _lawful_ writ, process, order, rule,

decree or command of said courts."

Now, Passmore Williamson was convicted of a contempt for disobeying a

writ of _habeas corpus_, commanding him to produce before the district

court certain persons claimed by Mr. Wheeler as slaves. Was it a lawful

writ? Clearly not, if the court had no jurisdiction to issue it; and that

it had not I think is very plain. If it was unlawful, the person to whom

it was directed was not bound to obey it; and, in the very words of the

statute, the power to punish for contempt "shall not be construed to

extend to it."

But, says the opinion of the majority, he was convicted of a contempt of

court, and we will not look into the record to see how the contempt was

committed. I answer this by asserting that you cannot see the conviction

without seeing the cause: 1, the petition; 2, the writ and the alias writ

of _habeas corpus_; 3, the return; and 4, the judgment.

"It is ordered and adjudged by the court that the said Passmore Williamson

be committed to the custody of the marshal without bail or mainprize, as

for a contempt in refusing to make return to the writ of _habeas corpus_

heretofore issued against him at the instance of Mr. John H. Wheeler." As

I understand the opinion of a majority of my brethren, as soon as we get

to the word contempt the book must be closed, and it becomes instantly

sealed as to the residue of the record. To sustain this commitment we

must, it seems, first presume, in the very teeth of the admitted fact,

that these were runaway slaves; and second, we must be careful to read

only portions of the record, lest we should find that the prisoner was

committed for refusing to obey an unlawful writ.

I cannot forbear the expression of the opinion that the rule laid down in

this case by the majority is fraught with great danger to the most

cherished rights of the citizens of the State. While in contests involving

the right of property merely, I presume we may still treat these judgments

of the United States courts, in cases not within their jurisdiction, as

nullities; yet, if a single judge thinks proper to determine that one of

our citizens has been guilty of contempt, even if such determination had

its foundation in a case upon which the judge had no power to pronounce

judgment, and was most manifestly in direct violation of a solemn act of

the very legislative authority that created the court over which the judge

presides, it seems that such determination is to have all the force and

effect of a judgment pronounced by a court of competent jurisdiction,

acting within the admitted sphere of its constitutional powers.

Nay, more. We confess ourselves powerless to protect our citizens from the

aggressions of a court, as foreign from our state government in matters

not committed to its jurisdiction as the Court of Queen's Bench in

England, and this upon the authority of decisions pronounced in cases not

at all analogous to the one now under consideration. I believe this to be

the first recorded case where the supreme court of a state has refused the

prayer of a citizen for the writ of _habeas corpus_ to inquire into the

legality of an imprisonment by a judge of a federal court for contempt, in

refusing obedience to a writ void for want of jurisdiction.

I will conclude by recapitulating the grounds upon which I think this writ

should be awarded.

1. At common law, and by our statute of 1785, the writ of _habeas corpus

ad sufficiendum_, is a writ of right, demandable whenever a petition in

due form asserts what, if true, would entitle the party to relief.

2. That an allegation in a petition that the petitioner is restrained of

his liberty by an order of a judge or court without jurisdiction, shows

such probable cause as to leave it no longer discretionary with the court

or judge to whom application is made whether the writ shall or shall not

issue.

3. That where a person is imprisoned by an order of a judge of the

district court of the United States for refusing to answer a writ of

_habeas corpus_, he is entitled to be discharged from such imprisonment if

the judge of the district court had no authority to issue the writ.

4. That the power to issue writs of _habeas corpus_ by the judges of the

federal courts is a mere auxiliary power, and that no such writ can be

issued by such judges where the cause of complaint to be remedied by it is

beyond their jurisdiction.

5. That the courts of the federal government are courts of limited

jurisdiction, derived from the constitution of the United States and the

acts of Congress under the constitution, and that when the jurisdiction is

not given by the constitution or by Congress in pursuance of the

constitution, it does not exist.

6. That when it does not appear by the record that the court had

jurisdiction in a proceeding under our _habeas corpus_ act to relieve from

an illegal imprisonment, want of jurisdiction may be established by

parole.

7. That where the inquiry as to the jurisdiction of a court arises upon a

rule for a _habeas corpus_, all the facts set forth in the petition

tending to show want of jurisdiction are to be considered as true, unless

they contradict the record.

8. That where the owner of a slave voluntarily brings his slave from a

slave to a free State, without any intention of remaining therein, the

right of the slave to his freedom depends upon the law of the State into

which he is thus brought.

9. That if a slave so brought into a free State escapes from the custody

of his master while in said State, the right of the master to reclaim him

is not a question arising under the constitution of the United States or

the laws thereof; a judge of the United States cannot issue a writ of

_habeas corpus_ directed to one who it is alleged withholds the possession

of the slave from the master, commanding him to produce the body of the

slave before said judge.

10. That the district court of the United States for the eastern district

of Pennsylvania has no jurisdiction because a controversy is between

citizens of different States, and that a proceeding by _habeas corpus_ is,

in no legal sense, a controversy between private parties.

11. That the power of the several courts of the United States to inflict

summary punishment for contempt of court in disobeying a writ of the

court, is expressly confined to cases of disobedience to "lawful" writs.

12. That where it appears from the record that the conviction was for

disobeying a writ of _habeas corpus_, which writ the court have no

jurisdiction to issue, the conviction is _coram non judice_, and void.

For these reasons I do most respectfully, but most earnestly, dissent from

the judgment of the majority of my brethren refusing the writ applied for.

No. V.

_How Passmore Williamson was finally discharged._

Previously to the application on Williamson's behalf to the supreme court

of Pennsylvania, Jane Johnson, the woman who, and her two sons, were

claimed as slaves by Wheeler, had appeared before Judge Culver of New

York, and had made an affidavit that the plan of claiming her freedom and

that of her children had originated entirely with herself; that it was

through her means that Williamson was made acquainted with her desire in

that behalf; and that all he had done, after coming on board the boat, was

to assure her and her claimant that she and her children were free, to

advise her to leave the boat, and to interfere to prevent Wheeler from

detaining her. The same facts she had afterwards testified to in open

court in Philadelphia, on the trial for assault and riot of the colored

men who had assisted her to escape.

After the failure of the application to the supreme court of Pennsylvania,

certain persons, indignant at this refusal of justice and at the

continuation of Williamson's false imprisonment, but acting wholly

independently of him, induced Jane Johnson to present a petition to Judge

Kane, setting forth all the above facts, and praying that as the writ of

_habeas corpus_ obtained by Wheeler under pretence of delivering her from

imprisonment and detention had been obtained without her privity or

consent, and on false pretences, the writ and all the proceedings under it

might be quashed. After argument upon the question of allowing this

petition to be filed, Judge Kane delivered a long and very elaborate

opinion, embracing three principal topics. He began with a very elaborate

eulogy upon the writ of _habeas corpus_, coming with a very singular grace

from a judge who had prostituted that writ to so vile a use, viz.: an

attempted kidnapping and the false imprisonment for a pretended contempt

of the man who had encouraged and assisted Jane Johnson to vindicate her

rights under the laws of Pennsylvania. Next followed Judge Kane's version

of his proceedings in committing Williamson, and an attempt to vindicate

himself therein; and to which succeeded a very labored effort at enforcing

his favorite doctrine, on which his whole proceeding had been based, that

slaveholders have a right to transport their slaves through Pennsylvania.

He refused to receive the petition of Jane Johnson, or to pay any

attention to its suggestions, on the following grounds:

"The very name of the person who authenticates the paper is a stranger to

any proceeding that is or has been before me. She asks no judicial action

for herself, and does not profess to have any right to solicit action on

behalf of another. On the contrary, her counsel have told me expressly

that Mr. Williamson has not sanctioned her application. She has therefore

no _status_ whatever in this court."

After the delivery of this opinion a little episode followed, evidently

got up with a view to relieve Judge Kane from a part of the odium under

which he was laboring, of which episode the following account was given in

the newspaper reports of the proceeding:--

"On the conclusion of the delivery of this opinion, John Cadwallader, (a

member of the bar, but not engaged in this case,) in order to remove a

false impression from the public mind, said, from his recollection of the

circumstances attending the commitment of Passmore Williamson, a

proposition was made to amend the return to the writ, when Judge Kane

replied:--'I will not receive an amendment now, but will be prepared to

receive it when the record has been completed.'

"No such motion was subsequently made, and the public impression that

permission to amend was refused, was not warranted by facts.

"Judge Kane replied that his (Mr. Cadwallader's) impression was correct.

He had been prepared to receive a supplementary return from Mr.

Williamson's counsel, but none had been offered.

"Mr. Cadwallader suggested that an addition be made to the opinion of the

court, embracing the remarks of a member of the bar not engaged in the

case, and the reply of the judge. He was induced to make the suggestion by

the best feeling towards a worthy but mistaken man, hoping it might lead

to the adoption of such a course as would end in his liberation.

"Mr. Cadwallader is to embody the remarks he made, when the judge will

follow with his answer, so as to complete the record."[158]

Some days after, (Oct. 26,) Messrs. Gilpin and Meredith, of counsel for

Williamson, appeared in Judge Kane's court, and asked leave to read a

petition from Williamson. This petition contained a statement of the facts

in relation to his connection with the liberation of Jane Johnson and her

children, similar to that contained in his petition to the supreme court

of Pennsylvania, Appendix. No. I. The following account of the proceedings

on this motion is taken from the _Philadelphia Gazette_:--

Judge Kane said, 'The court cannot hear an application from a party in

contempt, except to absolve him. I understand there is an application, by

petition, in the name of Passmore Williamson, which is not to relieve

himself from the contempt, but--'

Mr. Meredith then remarked something in an inaudible tone, and Judge Kane

said: 'Let us not be misunderstood--I am not prepared to receive an

application from Passmore Williamson, who is incarcerated for contempt of

this court, unless such petition be to relieve himself from contempt by

purgation. I am of opinion, unless otherwise instructed, that that is an

independent preliminary to any other application from him.

'If, therefore, the counsel arise to present an application from Mr.

Williamson, it must be for purgation. The counsel do not inform the court

whether they are here to purge Mr. Williamson from the contempt. As at

present advised, I have no power to hear their application, whatever it

may be, in his behalf.'

Mr. Meredith said there were two kinds of contempts; one of personal

insult to the bench, with which Passmore Williamson is not concerned; but

the contempt consisting in not making a proper return to the process of

the court.

Mr. Meredith then proceeded to argue that such a contempt could be purged

by making an answer to the court and paying the costs, which he was now

prepared to do.

Judge Kane said, that up to this moment there has been, on the part of the

individual to whom the function of the court has been delegated and

exercised in this matter, not a single particle of conscious excitement.

He did not believe it was in the power of the entire press of the United

States, after he had honestly administered his duty to the best of his

ability, to give him a pang, or produce one excited feeling; therefore,

now as heretofore, he looked upon the question as one that has no feeling

on the bench.

If he understood the remarks of Mr. Meredith, he meant to say to the court

that Passmore Williamson was desirous of testifying now his willingness to

obey the exigencies of the writ of _habeas corpus_. If so, he had a

simple, straightforward, honorable course to pursue. He has no need of

making a narrative of facts or arguments of protest; let him come forward

into court, declaring that he is willing to obey the writ issued by this

court; and when he has done that, in the estimation of the judge, he is

purged of his contempt.

Nothing on his part of personal offence was evinced to the court; his

demeanor was entirely respectful; but he failed to obey the writ which the

law issued to him; and when he has obeyed that writ, it will be the duty

of this court to free him. What is understood by 'purgation' is not simply

a mere form of words. It matters not about that, provided he received,

from the party who is in contempt for having disobeyed the process of the

court, the assurance that he is now prepared to obey such process, and,

until he is prepared to announce his disposition to obey, he could not

hear him upon any other subject which asserts that the court has erred

either in point of fact or law, or has exercised a jurisdiction which does

not belong to it. He said he would hear the counsel upon the question

whether the court can legally hear any other petition than the one of

purgation.

The respondent's counsel then proceeded to argue the right of the court to

hear a petition, other than of purgation, from Passmore Williamson.

Mr. Meredith said he had found nothing in the authorities, either English

or American, where persons were held guilty of a contempt in responding to

a writ of _habeas corpus_ unless the return was evasive. He referred to a

case in 3 Mason, where, in a return to a writ before Judge Story, there

was clearly an evasion shown on the face of the return.

Under these circumstances, Judge Story declared that the course of

practice was to propound interrogatories and compel the respondent to

disclose more fully. Mr. M. submitted whether it was not proper to subject

the petitioner in this case to a further questioning. He could not find in

English or American books any other course.

Mr. M. supposed that the respondent was committed until he should answer

interrogatories. Why had they not been propounded in the form that the

court might think proper to put them? No case could be shown in which a

defendant was to be committed for contempt, until he presented a prayer to

have interrogatories propounded to him. How is he to answer what has not

been filed?

According to the books, the defendant may come into court at any time, and

take advantage of an omission to file interrogatories within four days. If

another view should be taken by the court, he would then ask that an order

be made to show the defendant what he was to do to rid himself of the

contempt.

Judge Kane said that the defendant could make a declaration, that he was

now ready to answer interrogatories.

Mr. Meredith asked that the court make an order submitting certain

interrogatories, such as it would deem sufficient, to the prisoner, the

proper answers to which would be enough to purge him of the contempt.

The court then said, 'In some of the cases mentioned we know that the

party adjudged to be in contempt submitted himself to interrogatories,

either by writing or _per se_. I see no difficulty in the way of the

court's giving this decision in the form of an order.

'The suggestion of the counsel now has frequently been intimated by the

court. The prisoner might at any time, under a proper application, have

been before the court. If there was a misunderstanding of the position of

the case by the counsel for Mr. Williamson, it is a matter of sincere

regret to me.'

Mr. Meredith said he could not find any case of petition that

interrogatories should be filed, in any of the English books.

_Judge Kane._--The gentleman, Mr. Williamson, is now recusant, and I often

think that forms _sometimes_ have meaning and I cannot interfere otherwise

than to say as I have said above.

_Mr. Meredith._--I can enlarge the remark and say that forms _always_ have

meaning. He argued that the purging interrogatories must be filed. If not

filed, the party was entitled to his discharge. He argued from the

'Chancery Practice' of Smith, that the defendant ought only to be

imprisoned until he shall have properly answered the interrogatories put

to him.

Mr. Van Dyke, the district attorney, then said that the question now was

whether a person, in contempt, had any standing in court whatever. So far

as Mr. Williamson is concerned, he has no standing. The argument of the

gentlemen on the other side must be taken as arguing against the

adjudication of this court. How far can a man in contempt come into court

and purge that contempt? How did the counsel get over the fact, that his

client was in contempt? He must first submit himself to the court by

asking to be permitted to purge himself of contempt.

Mr. Meredith closed the argument, and the proceeding was closed by an

entry on the part of Judge Kane of the following order on the record.

_The United States_ v. _Williamson_. And now, October the 29th, 1855, the

court having heard argument upon the motion for leave to read and file

among the records, in this case, a certain paper writing purporting to be

the petition of Passmore Williamson, and having considered thereof, do

refuse the leave moved for, inasmuch as it appears that the said Passmore

Williamson is now remaining in contempt of this court, and that by the

said paper writing he doth in no wise make purgation of his said contempt,

nor doth he thereby pray that he may be permitted to make such purgation;

wherefore the said Passmore Williamson hath not at this time a standing in

this court.

To the end, however, that the said Passmore Williamson may, when thereunto

minded, the more readily relieve himself of his said contempt, it is

ordered that whenever by petition, in writing, to be filed with the clerk,

Passmore Williamson shall set forth, under his oath or solemn affirmation

that 'he desires to purge himself of the contempt because of which he is

now attached, and to that end is willing to make true answers to such

interrogations as may be addressed to him by the court, touching the

matters heretofore _legally_ enquired of by the writ of _habeas corpus_ to

him directed, at the relation of John H. Wheeler,' then the marshal do

bring the said Passmore Williamson before the court, if in session, or if

the court be not in session, then before the judge at his chambers, to

abide the further order of the court in his behalf. And it is further

ordered that the clerk do furnish copies of this order to the said

Passmore Williamson, and to the attorney of the United States, and to the

marshal.

Under this order Williamson presented the following petition:

_United States of America_ v. _Williamson, District Court of the

United States, Eastern district of Pennsylvania_.

_To the Honorable the Judge of the District Court of the United States

for the Eastern district of Pennsylvania:_

The petition of Passmore Williamson respectfully showeth: That he

desires to purge himself of the contempt because of which he is now

attached, and to that end is willing to make true answers to such

interrogatories as may be addressed to him by the court, touching the

matter heretofore inquired of him by the writ of _habeas corpus_ to

him directed at the relation of John H. Wheeler. Wherefore he prays

that he may be permitted to purge himself of said contempt by making

true answers to such interrogatories as may be addressed to him by the

honorable court touching the premises.

P. WILLIAMSON.

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

CHARLES F. HEAZLITT, U. S. Com.

Judge Kane hesitated to receive this petition because it did not conform

to his order by containing the word _legally_, before the phrase "inquired

of," (thus confirming the legality of the proceedings under the original

writ of _habeas corpus_ directed to Williamson.) But finding that

Williamson was resolved to make no such concession, Judge Kane finally

concluded to receive the petition, and made the following reply to it:

'PASSMORE WILLIAMSON: The court has received your petition, and, upon

consideration thereof, have thought right to grant the prayer thereof. You

will therefore make here in open court your solemn affirmation, that in

the return heretofore made by you to the writ of _habeas corpus_, which

issued from this court at the relation of John H. Wheeler, and in the

proceedings consequent thereupon, you have not intended a contempt of this

court or of its process. Moreover, that you are now willing to make true

answers to such interrogatories as may be addressed to you by the court,

touching the premises inquired of in the said writ of _habeas corpus_.'

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

Mr. Van Dyke, the district attorney, then submitted an interrogatory in

writing, which was not read aloud at that time.

Mr. Gilpin said Mr. Williamson was perfectly willing to answer the

interrogatory submitted by the district attorney, but as he did not know

what other interrogatories might follow this, he thought it best that it

and its answer should be filed.

Mr. Van Dyke said he was willing either to file the interrogatory or to

submit it for an immediate reply.

Mr. Gilpin and Judge Kane both remarked that they had understood the

district attorney to intimate, that if the question propounded was

answered in the affirmative, he would be satisfied. The court further

said, that it was for the petitioner to make his election whether or not

the interrogatories and the replies should be filed.

After consultation with his counsel, the petitioner preferred that the

questions and answers should be filed.

The court directed that the interrogatories should be filed.

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

reply of Mr. Williamson.

The interrogatory was as follows:

'Did you at the time of the service of the writ of _habeas corpus_, at the

relation of John H. Wheeler, or at any time during the period intervening

between the service of said writ and the making of your return thereto,

seek to obey the mandate of said writ, by bringing before this honorable

court the persons of the slaves therein mentioned? If to this

interrogatory you answer in the affirmative, state fully and particularly

the mode in which you sought so to obey said writ, and all that you did

tending to that end.'

The reply made was as follows:

'I did not seek to obey the writ by producing the persons therein

mentioned before the court, because I had not, at the time of the service

of the writ, the power over, the custody or control of them, and,

therefore, it was impossible for me to do so. I first heard of the writ of

_habeas corpus_ on Friday, July 20, between one and two o'clock A. M., on

my return from Harrisburg. After breakfast, about nine o'clock, I went

from my house to Mr. Hopper's office, when and where the return was

prepared. At ten o'clock I came into court, as commanded by the writ. I

sought to obey the writ by answering it truly; the parties not being in my

possession or control, it was impossible for me to obey the writ by

producing them. Since the service of the writ I have not had the custody,

possession or power over them; nor have I known where they were, except

from common rumor, or the newspaper reports in regard to their public

appearance in the city or elsewhere.'

Some discussion arose between the district attorney and the counsel of Mr.

Williamson. Mr. Van Dyke contended that the reply of the defendant was

evasive and contradictory. The judge said the difficulty, he thought,

could be easily overcome by amending the answer, and at the suggestion of

the court it was amended in the following manner:

'I did not seek to obey the writ by producing the persons in the writ

mentioned before this court. I did not seek, because I verily believed

that it was entirely impossible for me to produce the said persons,

agreeably to the command of the court.'

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

Mr. Van Dyke then submitted another interrogatory, the substance of which

was, whether or not Mr. Williamson had been guilty of mental reservations

in his reply to the first interrogatory?

The court overruled this interrogatory as superfluous and improper.

Mr. Van Dyke withdrew this interrogatory and offered another, which was

also overruled by the court, on the ground that it led to such replies as

had already been objected to by the district attorney.

Mr. Van Dyke also withdrew this question.

Judge Kane then remarked that the district attorney had been invited to

aid the court in this case, but that he would bear in mind that his

relation to Mr. Wheeler was now suspended. This was only an inquiry as to

what injury had been done the process of the court.

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

Judge Kane then said: 'The contempt is now regarded as purged and the

party is released from custody. He is now reinstated in the position he

occupied before the contempt was committed. Mr. Williamson is now before

me on the return to the writ.'

Mr. Van Dyke then arose and addressed the court.

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

Williamson discharged?'

Judge Kane replied, 'He is. I understand from the remarks of the district

attorney, that a _nolle prosequi_ has been entered in the case in this

court.'

The court then adjourned. Mr. Williamson was congratulated by his friends

on his restoration to liberty.[159]

FOOTNOTES:

[1] The German _graf_, for which the Latin _comes_ (in English, _count_ or

_earl_) was employed as an equivalent, is a form of the same word. The law

Latin for sheriff is _vice-comes_, a name given, it would appear, after

the title of earl or count had become hereditary, to the officer who still

continued to be elected by the people for the official functions

originally discharged by the earl.

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

[3] History of England, Appendix, I.

[4] The decision of this majority would seem to have been principally

determined, if the party complained against denied the charge, by the

method of compurgation, in which the oath of the defendant was sustained

by that of a certain number of his neighbors, who thereby certified their

confidence in him; or, if he could not produce compurgators, and dared to

venture upon it, by a superstitious appeal to the ordeal.

[5] History of England, Appendix, II.

[6] We may observe that even at present, whether in England or America,

though the depositaries of the legislative and executive authority (which

in those times the king was) sit no longer openly and personally on the

bench, it still remains no easy matter, in cases in which they take an

interest, to obtain in either country a judicial decision contrary to the

inclination of these two authorities.

[7] In the king's absence--and the Anglo-Norman kings were often absent on

visits to their continental dominions--this chief justiciary acted in all

respects as the king's substitute, no less in military than in civil

affairs, those who held it being selected quite as much for warlike

prowess as for judicial skill. Such was the case with Ranulphus de

Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise

in Latin, _On the Laws and Customs of the Kingdom of England_, is the

oldest book of the common law. He went with Richard I. on the third

crusade, and was killed at the siege of Acre.

[8] It might rather be said, a scholastic art, in which forms and words

became matters of much greater consideration than substantial justice, and

in which technical rules were substituted for the exercise of the

reasoning faculties.

[9] Not merely were these appeals introduced, but process was invented by

which suits commenced in these local courts might, before they were

finished, be removed into the king's courts, by the writ of _pone_ and

others.

[10] Originally, and down to a comparatively recent period, the Inns of

Court were real schools, "readers" or lecturers being appointed for the

instruction of the students, who were only admitted to practice after a

sharp examination. Now, the examination is a mere form, and the student

seeks instruction where he pleases. Even the nominal term of study has

been reduced to five, and in some cases to three years.

[11] This distinction between attorneys and barristers, though still in

full vogue in England and in several of the British colonies, is not

recognized in the United States, where, indeed, it never had but a feeble

and transient existence.

[12] Down to the period of the reformation the abbots of the greater

monasteries sat also in this house.

[13] If the Lords, says Campbell, were still liable to be so interrogated,

they would not unfrequently be puzzled; and the revival of the practice

might be a check on hasty legislation. It certainly would be a check upon

the practice of courts, now so frequent, of putting an interpretation on

statutes totally different from the intentions of those who frame them.

[14] Hence the necessity of venue, that is, the allegation in all

declarations and indictments of some place in some county where the matter

complained of happened, in order to a trial by a jury of the vicinage. In

personal actions this necessity of trying a case in the county where the

transaction occurred was got rid of by first setting out the true place of

the transaction, and then alleging under a _videlicet_ a venue in the

county where the action was brought, which latter allegation the courts

would not allow to be disputed. But in criminal proceedings and real

actions the necessity of a trial in the county where the offence was

committed or the land lies still continues.

The origin of the jury in a body of neighbors who decided from their own

knowledge will seem less remarkable when we recollect that by the customs

of the Anglo-Saxons all sales of land, contracts, &c., between individuals

took place in public at the hundred and county courts, the memory of the

freeholders present thus serving in place of written records. See

Palgrave's _English Commonwealth_, vol. i. p. 213.

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

[16] Down to the time of Elizabeth _all_ cases occurring in Middlesex

county, in which Westminster lies, were thus tried in bank.

[17] In London and Middlesex four sessions were held a year; in the four

northern counties only one.

[18] This history holds out to our state tribunals significant warnings as

to the danger to which they are exposed on the part of the federal judges,

especially those of the District Courts, who sitting singly on the bench,

and with powers enormously and most dangerously extended by recent

legislation, have from the unity and concentration of the one-man power, a

great advantage over courts liable to be retarded in their action, if not

reduced to imbecility by divisions among their members.

[19] The appeal from the English colonial courts to the king in

council--the appeal cases being heard and decided by a committee of the

privy councillors learned in the law--is another remnant of the old

system, in which the constitution of the ancient Aula Regis has been very

accurately preserved.

[20] Both these courts proceeded according to the forms of the civil law,

and without a jury. But occasionally the court of equity directed

questions of fact arising before it to be settled by jury trial, and by a

statute of Henry VIII. the trial of all maritime felonies before the

Admiralty Court was directed to be by jury.

[21] Hyde, (afterwards Lord Clarendon,) himself a lawyer, by whom the

usurpations of this court were brought to the notice of Parliament, stated

that more damages had been given by the earl marshal in his days, for

words of supposed defamation, of which the law took no notice, than by all

the courts of Westminster Hall during a whole term.

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

Brabanson.

[23] Hume, who designates them "desperate ruffians," says "troops of them

were sometimes enlisted in the service of one prince or baron, sometimes

in that of another; they often acted in an independent manner, and under

leaders of their own. The greatest monarchs were not ashamed, on occasion,

to have recourse to their assistance; and as their habits of war and

depredation had given them experience, hardiness, and courage, they

generally composed the most formidable part of those armies which decided

the political quarrels of princes."--Vol. i. 438. In America we have no

mercenary soldiers, but plenty of mercenary politicians, almost as much to

be dreaded.--_Ed._

[24] They were removed because, during the king's absence on the

continent, they had been guilty of taking bribes, and other misdemeanors.

Of De Wayland, one of their number, and the first chief justice of the

Common Pleas, Lord Campbell gives the following account: When arrested, on

the king's return from Aquitaine, conscious of his guilt, he contrived to

escape from custody, and, disguising himself in the habit of a monk, he

was admitted among friars-minors in a convent at Bury St. Edmund's.

However, being considered a heinous offender, sharp pursuit was made after

him, and he was discovered wearing a cowl and a serge jerkin. According to

the law of sanctuary, then prevailing, he was allowed to remain forty days

unmolested. At the end of that time the convent was surrounded by a

military force, and the entry of provisions into it was prohibited. Still

it would have been deemed sacrilegious to take him from his asylum by

violence; but the lord chief justice preferred surrendering himself to

perishing from want. He was immediately conducted to the Tower of London.

Rather than stand a trial, he petitioned for leave to abjure the realm;

this favor was granted to him on condition that he should be attainted,

and forfeit all his lands and chattels to the crown. Having walked

barefoot and bareheaded, with a crucifix in his hand, to the sea side at

Dover, he was put on board a ship and departed to foreign parts. He is

said to have died in exile, and he left a name often quoted as a reproach

to the bench till he was superseded by Jeffreys and Scroggs.

[25] That is, in the ordinary discharge of his duties. His attempt to take

away the liberties of the Scotch we shall presently see.--_Ed._

[26] Just like our northern candidates for the presidency, and the

dough-face politicians who contrive to get chosen to Congress by northern

constituencies, whose rights they then barter away and betray.--_Ed._

[27] This is the very ground upon which it is attempted, now, to justify

the repeal of the Missouri prohibition of slavery, while Brabacon's

defence of English judges in Scotland is a counterpart to the

justification by our federal judges of the authority given to

slave-catching commissioners.--_Ed._

[28] May the pending attempts of the Southern States, countenanced and

supported by the federal judges, to establish a "superiority" and "direct

dominion" over the north, be met and repelled with similar spirit and

success!--_Ed._

[29] He had been murdered by a body of insurgent peasants headed by Jack

Straw, one of the leaders in Wat Tyler's insurrection.--_Ed._

[30] Some of our federal judges would no doubt like very much to see this

rule established among us.--_Ed._

[31] The persistence of Richard II. in the same arbitrary principles of

which the advocacy cost Tresilian his life, caused his deposition a few

years afterwards, as to which, Lord Campbell observes,--

"While we honor Lord Somers and the patriots who took the most active part

in the revolution of 1688, by which a king was cashiered, hereditary right

was disregarded, and a new dynasty was placed on the throne, we are apt to

consider the kings of the house of Lancaster as usurpers, and those who

sided with them as rebels. Yet there is great difficulty in justifying the

deposition of James II., and condemning the deposition of Richard II. The

latter sovereign, during a reign of above twenty years, had proved himself

utterly unfit to govern the nation, and, after repeated attempts to

control him, and promises on his part to submit to constitutional advice,

he was still under the influence of worthless favorites, and was guilty of

continued acts of tyranny and oppression; so that the nation, which, with

singular patience, had often forgiven his misconduct from respect to the

memory of his father and his grandfather, was now almost unanimously

resolved to submit no longer to his rule."

[32] Fuller, in praising Fortescue and Markham, says, "These I may call

two chief justices of the chief justices, for their signal integrity; for

though the one of them favored the house of Lancaster, and the other of

York, in the titles to the crown, both of them favored the house of

Justice in matters betwixt party and party."

[33] A list by no means limited to England, but very much lengthened out

in America.--_Ed._

[34] Some of our American advocates of constructive treasons have laid

down the law much in the same spirit.--_Ed._

[35] It was, we may suppose, from this charge that Mr. Justice Curtis, of

the Supreme Court of the United States, got the law retailed in his charge

to the grand jury of the Massachusetts District, in consequence of which

indictments were found against Wendell Phillips and Theodore Parker for

obstructing the execution of the fugitive slave act--on the ground that

certain speeches of theirs in Faneuil Hall against that statute "referred

to a purpose" and "incited to an act" of resistance to it, thereby making

their expression of opinion criminal.--_Ed._

[36] The recent claim set up in America for legislative supremacy over

conscience--a claim contended for by so many of our leading lawyers and

divines--is not less blasphemous and outrageous than this claim of Henry

VIII., and belongs to the same category.--_Ed._

[37] This would hardly be allowed by some of our American juridical

deniers and deriders of the "higher law." It is hard to distinguish a law

(such as the fugitive slave act) which sets the moral sentiment at

defiance, from a law that God shall not be God.--_Ed._

[38] One striking instance, among a thousand, both old and new, how little

the so much vaunted decisions of courts virtually amount to. Decisions

that are to stand, can only stand upon their own inherent rectitude and

reasonableness, and not upon the authority of those who make them.--_Ed._

[39] Some of our American judges who have of late attained a very

unenviable public character have also the reputation of being virtuous and

amiable in private life.--_Ed._

[40] Noy at this time was of the popular party. He afterwards went over to

the court, and was made attorney general.--_Ed._

[41] Similar pretences of respect for law and popular rights often serve

as preface here in America to judgments as atrocious as that of Chief

Justice Hyde.--_Ed._

[42] This is the universal excuse for all sins, whether of omission or

commission, on the part of courts who pay but little regard to Bishop

Burnet's sensible observation that a precedent against reason "signifies

no more but that the like injustice has been done before."--_Ed._

[43] Though the lawyers, both in England and America, have long since

abandoned the pretence, so impudently maintained by Hyde, of a right in

the executive authorities to imprison for contempt, into the ground and

nature of which the courts had no right to inquire, they still claim for

themselves and for one another--at least in Pennsylvania--a like right,

and insist with the same unction upon the absolute necessity of trusting

"the courts" in these matters, and of relying upon their "mercy." See, in

the Appendix, No. 3, the opinion of the Supreme Court of Pennsylvania, as

delivered by Judge Black, of which the insolent conclusion was evidently

borrowed from the above opinion of Chief Justice Hyde.--_Ed._

[44] This celebrated lawyer, who had succeeded Fleming as chief justice of

the King's Bench, had been, as well as Crewe, turned out of office after

holding the place for three years, because he would not allow the

government to interfere with his administration of justice. He was now the

leader of the popular party in the House of Commons.--_Ed._

[45] We have had recent striking instances in America of the same thing in

some of the "misconstructions" placed by judges on the laws in restraint

of drunkenness and liquor selling.--_Ed._

[46] Like those given by several federal judges in support of the fugitive

slave act.--_Ed._

[47] Noy had begun, like Brampston, a flaming patriot, but, like him and

so many other lawyers, had been bought over to the side of power by the

hope of promotion, and being made attorney general, had advised the issue

of the writs for ship money.--_Ed._

[48] Cro. Car. 403. These forms are no longer used. The chief justice is

now sworn in privately before the chancellor; and without any speechifying

he enters the court and takes his place on the bench with the other

judges. But in Scotland they still subject the new judge to trials of his

sufficiency; while these are going on he is called lord probationer; and

he might undoubtedly be plucked if the court should think fit.

[49] This is exactly the sort of judges from whom we in America have so

much to fear.--_Ed._

[50] We have seen in America similar attempts to stop counsel from

exposing the unsoundness of judicial opinions given in support of the

fugitive slave act.--_Ed._

[51] This is the very doctrine lately revived, in a little different

shape, by some of our American divines--that whatsoever the legislative

power in its conscience thinks it may require, we ought to yield.--_Ed._

[52] Some of our American federal judges are in the habit of declaiming

much in the same style against abolitionists--who, indeed, may be

considered as occupying a position in our present affairs in many respects

parallel to that of the English Puritans in the times of Charles I.--_Ed._

[53] Having once refused to hear counsel against ship money, he now

undertook to square the account by refusing to hear counsel for it.--_Ed._

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

[55] This supposed inability of the king to do wrong has in America among

a certain class been transferred to the federal government, which

represents the royal authority of the English.--_Ed._

[56] 2 Bl. Com. 69. Compulsory knighthood was abolished by the Long

Parliament, 16 Car. I. c. 20.

[57] Their decisions are still of as much authority on legal questions as

those of courts sitting under a commission from the crown; and they were

published with the sanction of the chancellor and all the judges in the

reigns of Charles II. and James II.

[58] It is doubtless a like mixture of motives that prompts just now the

conduct of some of our American lawyers.--_Ed._

[59] Charles II., in his _Declaration_ from Breda, had promised that he

should "proceed only against the immediate murderers of his royal father."

[60] In answer to the address of the two Houses of the Convention

Parliament to spare the lives of Vane and Lambert, the lord chancellor

reported, "His majesty grants the desire of the said petition;"--the

ancient form of passing acts of Parliament. The ultra Cavalier House of

Commons which followed desired Vane's death, but could not alter the law

or abrogate the royal promise.

[61] In his younger days, before the civil war, Sir Henry Vane had been

among the early emigrants to Massachusetts, and as governor of that colony

had borne a part in some remarkable transactions there.--See Hildreth's

_History of the United States_, vol. i. ch. ix.

[62] A fortress on the south shore of the English Channel, taken by

Cromwell from the Spaniards, and by Charles II. sold at this time to Louis

XIV. of France.

[63] So Bacon, better at precept than at practice, in his advice to Sir

George Villars, requires in judges these three attributes--they must be

men of courage, fearing God, and hating covetousness: an ignorant man

cannot, a _coward_ dare not be a good judge. On the American bench we have

too many cowards.--_Ed._

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

_Prisoner._--I most humbly beseech your lordship to remember my condition,

(he had before stated himself to be the father of nine small children,)

and intercede for me.

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

were alive.

[65] This practice of putting questions to the prisoner intended to

intimidate him, to involve him in contradictions, or to elicit from him

some indiscreet admission, had ceased during the Commonwealth, but was

revived by the new royal judges.

[66] This was the same doctrine afterwards attempted to be maintained by

Lord Mansfield, but overruled by a declaratory act of Parliament.

[67] An American specimen of this style of judicial decision may be found

in Judge Grier's way of speaking on the bench about Abolitionists.--_Ed._

[68] 6 State Trials, 701-709.

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

[70] The above passage enclosed in brackets has been added by the editor.

Our American judges, more subtle than their predecessors, instead of

fining juries for not rendering verdicts according to directions, have

introduced the practice of questioning jurors beforehand, and not allowing

them to sit unless they pass a satisfactory examination.--_Ed._

[71] This was an expensive residence built by Clarendon, to which the

populace gave that name, under the unfounded idea that the expense of it

was defrayed out of bribes received for consenting to the sale of

Dunkirk.--_Ed._

[72] This has been from great antiquity the decoration of the English

chief justices. Dugdale says it is derived from the name of St.

Simplicius, a Christian judge, who suffered martyrdom under the Emperor

Diocletian.--_Ed._

[73] Among these was, "whether the act of severing the head of Charles I.

from his body could be alleged to have been committed in his own

lifetime," and "whether it should be laid as against the peace of the late

or of the present king." Judge Mallet made the confusion more confounded

by maintaining that by the law of England a day is indivisible; and that,

as Charles II. certainly was our lawful king during a part of that day, no

part of it had been in the reign of Charles I.

[74] This case, thus characterized by Lord Campbell, served as foundation

for the remarkable attempt recently made among us to convert opposition to

the fugitive slave act into high treason. This bloody idea was first

started by George T. Curtis, a slave-catching commissioner of

Massachusetts, in his telegraphic despatch to Mr. Webster, giving an

account of the rescue at Boston, by a number of colored men, from the

hands of the U. S. marshal, of a man named Shadrach, who had been seized

on one of Commissioner Curtis's warrants as a fugitive slave.

Not long after, in September, 1851, a Maryland slaveholder named Gorsuch

obtained from the notorious Edward D. Ingraham, the Philadelphia

slave-catching commissioner, warrants against four alleged fugitive

slaves. He proceeded with an armed party and a deputy marshal to

Christiana, and besieged a house in which the slaves were said to have

taken refuge. Intelligence had been received of the approach of the party,

and the slaves manfully resolved to defend themselves, and, if possible,

to achieve their freedom. Some of their colored friends gallantly came to

their aid and generously shared their danger. Gorsuch, the slave-hunter,

and the marshal entered the house, but were repulsed, each party firing at

the other, but, as appears, without effect. The besiegers called for

assistance, and meeting Caspar Hanway, a white man, on horseback, the

marshal, as authorized by the fugitive law, commanded his aid in arresting

the slaves. Mr. Hanway, as became a republican and a Christian, refused

obedience to the infamous mandate. In the mean time the negroes made, it

would seem, a sortie, advancing on the enemy. Hanway called to them _not

to fire_. His exhortation was unheeded. Gorsuch was shot dead, another was

wounded, and the residue of the slave-catchers sought safety in flight.

At the next meeting of the United States District Court for the Eastern

District of Pennsylvania, this case was brought to the notice of the grand

jury by Judge Kane.

After reciting the facts as they appeared in the newspapers, he added,

that it was reported "that for some months back, gatherings of people,

strangers as well as citizens, have been held from time to time in the

vicinity of the place of the recent outrage, at which exhortations are

made and pledges interchanged to hold the law for the recovery of fugitive

slaves as of no validity, and to defy its execution." In other words,

anti-slavery meetings had been held in Lancaster county, as in other parts

of the free states, and in these meetings one of the most detestable acts

of modern legislation had been denounced as cruel and unjust, and the

people in attendance had expressed their determination not to participate

in slave hunts.

"If," said the judge; "the circumstances to which I have adverted [viz:

the riot at Christiana and the anti-slavery meetings] have in fact taken

place, they involve the highest crime known to the law." And what crime is

that? Treason. And what is treason? The judge answers, "Levying war

against the United States." And what had the affair at Christiana to do

with war against the United States? Again the judge replies, "Any

combination forcibly to prevent or oppose the execution or enforcement of

a provision of the Constitution or of a public statute, if accompanied by

an act of forcible opposition in pursuance of such combination," is

embraced in the expression "levying war against the United States," as

used in the constitutional definition of treason. Hence, four negroes

combining to maintain their newly-recovered liberty by forcibly resisting

the efforts of a slave-catcher, are guilty of levying war against the

United States.

But the judge's patriotic zeal against traitors did not confine itself to

the enemies of the United States actively engaged in the Christiana

campaign. Here, indeed, he went far beyond even the infamous Judge

Kelynge. "It is not necessary," so he told the grand jury, "to prove that

the individual accused was a direct personal actor in the violence, nor is

even his personal presence indispensable. Though he be absent at the

actual perpetration, yet if he directed the act, devised, or knowingly

furnished the means for carrying it into effect, or instigated others to

perform it, he shared their guilt. In treason, there are no accessories."

From all this the grand jury were to understand that anti-slavery men, by

their doctrines of human rights and their denunciations of the fugitive

act, instigated fugitive slaves to defend themselves; hence, as, in

treason, all are principals, however remotely and indirectly concerned,

these abolition instigators had also levied war, were traitors, and might

be legally hung. To strengthen this intended impression on the minds of

the jury, the judge launched out into an invective against the

abolitionists, concluding with the very significant and smart admonition,

"While he (the abolitionist) remains within our borders he is to remember

that successfully to instigate treason is to commit it."

What is still more astonishing than even this charge, the grand jury, to

whom it was delivered, showed themselves such ready receivers of its

infamous and atrocious doctrines as to bring into court thirty bills for

high treason, against as many different individuals, founded upon it.

Of these thirty indictments, the only one brought to trial was that

against Caspar Hanway, above mentioned. The only acts proved against this

man, in support of the charge of having "traitorously levied war against

the United States," were, 1. having declined to assist the marshal in

arresting the fugitives; and 2. in calling to the negroes and urging them

_not_ to fire.

Judge Grier presided on the trial, and notwithstanding his vulgar

invectives against the abolitionists, found himself compelled to charge

the jury, even in the presence of Judge Kane, that "a number of fugitive

slaves may infest a neighborhood, and may be encouraged by their neighbors

in combining to resist with force and arms their master, or the public

officer who may come to arrest them; they may murder or rob them; they are

guilty of felony and liable to punishment, but not as traitors." The

prisoner was of course acquitted, and all the other indictments abandoned;

and thus ended in shame and ridicule Judge Kane's ingenious device for

hanging all who resisted the fugitive slave law. Yet this same man, at a

Kossuth meeting at Philadelphia, made a rampant filibustering speech in

behalf of oppressed nations, quoting with exultation the words of Vattel,

"When a people from good reasons take up arms against an oppressor,

justice and generosity require that brave men should be assisted in the

defence of their liberties."--_Ed._

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

[76] And yet it is upon the authority of these worthless reports that some

important American decisions have been based. See 13 _Mass. Reports_, 356,

Commonwealth v. Bowen; also the preceding note.--_Ed._

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

[78] Our recent American history presents a curious parallel to the

English Popish plot delusion and the use made of it by the unscrupulous

politicians of that age. The basis of that delusion was the well-founded

horror which the English people entertained for the Popish religion as

hostile to their liberties. The immediate allegation upon which it rested

was, that the Papists had formed a conspiracy to assassinate Charles II.,

and so to open the way to the throne for the Duke of York, (afterwards

James II.,) a professed Papist.

The suggestion of this plot, founded merely on vague suspicions,--(if

indeed it was not, as some writers think, purposely started for political

objects,)--was taken hold of by the unprincipled Shaftesbury, who from

having been an ultra courtier, had become the leader of the country party.

He sought to use it to stimulate the people against the court, and to

prepare the way for his project of excluding the Duke of York from

succession to the throne. He expected that the court would oppose this

delusion, and so would make itself still more unpopular. But Charles II.,

no less unprincipled than Shaftesbury, was quite as ready as he to play at

any dangerous game; and that he might gain credit for Protestantism,

(though all the while secretly a Papist,) he resolved to humor the

delusion to the utmost, and to allow it full play against its unfortunate

victims.

So here in America, the democrats, (so called, but in fact slavery

extenders,) taking advantage of the very strong and well-founded popular

sentiment in favor of the Union, and seeking to recommend themselves to

favor as a national party, hit upon the similar expedient of accusing the

abolitionists of a plot to dissolve the Union, part of the odium of which

they hoped to throw upon their political opponents, the so-called whigs,

by accusing them as screeners and favorers of the abolitionists. The

whigs, however, in imitation of the policy of Charles II., and under the

leadership of the late Daniel Webster, sought to turn this pretended plot

to their own advantage, by coming out still more furious Union-savers than

even the democrats, and denouncing the abolitionists with still greater

fury--thus working up the public mind into a terror at the imaginary

danger of the Union, much like that of the English people at the time of

the Popish plot. We, too, have had our trials for treason, (see ante, p.

158-161;) and if we have had no bloody executions, it has not been for

want of Scroggses, both on and off the bench.--_Ed._

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

[80] "By his zeal in the Protestant cause he gained for a while a

universal applause throughout the whole nation."--_Athenæ_, iv. 116.

[81] This profession of contempt for "vulgar noise" has lately been

repeated in America by a judge whose manner and bearing on the bench come

as near those of Scroggs as the present times will bear.--_Ed._

[82] From this asseveration a suspicion arises of pecuniary corruption;

but I believe that Scroggs was swayed in this instance by a disinterested

love of rascality.

[83] Roger North, whose curious life of his brother is largely quoted in

this memoir.--_Ed._

[84] At that time not more than fifty volumes were required. Now,

unfortunately, a law library is "_multorum camelorum onus_," (a load for

many camels.)

[85] This sort of practice on the weakness of judges, keeping them in good

humor by flattery and complaisance, may possibly, as the text implies, be

abandoned in England, but in America it is still sufficiently

common.--_Ed._

[86] The distinguishing badge worn by the king's counsel. The barristers

wear stuff gowns. The serjeants, (the highest rank of practitioners,)

enjoying a monopoly of the practice of the Court of Common Pleas, which

originally had exclusive cognizance of all civil actions, have or had, as

their badges, a coif, or black velvet cap, (for which a wig was about this

time substituted,) and parti-colored robes.--_Ed._

[87] The hours then kept must have been very inconvenient for lawyers in

Parliament, as all the courts and both houses met at eight in the morning

and sat till noon.

[88] This early rising rendered it necessary for him to take "a short turn

in the other world after dinner."

[89] Roger assures us he did not purloin any part of the treasure, for

which he takes infinite credit to himself.

[90] This was the title taken by Finch on promotion to the great seal.

Nottingham is greatly lauded by Blackstone and other writers on

jurisprudence as a "consummate lawyer," and as the father of the modern

English equity system. His abilities were unquestionable, but his

political career, like that of so many other "consummate lawyers," has

some very black spots.--_Ed._

[91] Here we have one of many English precedents of assault upon the right

of petition--a thing by no means unknown in our American politics.--_Ed._

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

[93] Here again is the old pretence of "levying war," under which it has

been attempted with us to convert hostility to the fugitive slave act into

treason. See ante, p. 158.--_Ed._

[94] Pemberton, though well aware that, to justify the grand jury in

finding an indictment, a _prima facie_ case of guilt must be made out,

instructed them that "a probable ground of accusation" was

sufficient.--_Ed._

[95] By this word "pension," I conceive we are to understand _salary_

while the lord keeper was in office, and not, as might be supposed, an

allowance on his retirement.

[96] Pemberton had been appointed to succeed Scroggs as chief justice of

the King's Bench, but not being found quite serviceable enough, was now

removed into another court.--_Ed._

[97] "Sir F. North being made lord keeper on the death of the Earl of

Nottingham, the lord chancellor, I went to congratulate him. He is a most

knowing, learned, and ingenious person; and, besides having an excellent

person, of an ingenuous and sweet disposition, very skilful in music,

painting, the new philosophy, and political studies."--_Mem._ i. 513.

Judge Kane is said to be quite an accomplished person.--_Ed._

[98] The principal obstacle to law reform in America is the pecuniary

interest which the lawyers think they have in keeping up old

abuses.--_Ed._

[99] Bishop Burnet, the historian.

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

[101] An account of Guilford's unavailing attempt to prevent this

appointment will be found in the life of Wright, chap. xix.--_Ed._

[102] It is curious that Roger gravely states that "he was dropped from

the tory list and turned trimmer."--_Life_, i. 404.

[103] Life, ii. 179. It should be recollected that, at this time, the

council met in the afternoon, between two and three--dinner having taken

place soon after twelve, and a little elevation from wine was not more

discreditable at that hour than in our time between eleven and twelve

o'clock at night.

[104] James and Jeffreys setting themselves up as the special advocates of

toleration, (with a view to the introduction of Popery,) is like our

American slaveholders putting themselves forward as advocates of the

rights of property and as special democrats, for the purpose of upholding

slavery, based as slavery is on principles at war with the fundamental

idea of property and democracy.--_Ed._

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

[106] Lord Coke lays down, that upon such an occasion there ought to be a

warrant by advice of the Privy Council, as in 32 H. 8, to certain

physicians and surgeons named, authorizing them to administer to the royal

patient "potiones, syrupos, confectiones, laxitivas medicinas, clysteria,

suppositoria, capitis purgea, capitis rasuram, fomentationes,

embrocationes, emplastra," &c.; still, that no medicine should be given to

the king but by the advice of his council; that no physic should be

administered except that which is set down in writing, and that it is not

to be prepared by any apothecary, but by the surgeons named in the

warrant.--4 _Inst._ 251. These were the precautions of times when no

eminent person died suddenly without suspicion of poison. Even Charles II.

was at first said to have been cut off to make way for a Popish successor,

although, when the truth came out, it appeared that he had himself been

reconciled to the Roman Catholic church.

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

very good or very bad.

[108] Evelyn tells us that this was the first rhinoceros ever introduced

into England, and that it sold for two thousand pounds.

[109] We may add--for his tory principles, and for the loss of America to

the British crown.--_Ed._

[110] Saunders was very ingenious; but in the invention of charges to

serve the turn of tyranny he has his match in some of our American

lawyers.--_Ed._

[111] This is not the William Jones mentioned in the life of Lord North,

but a person of a different character, one Edward Jones.--_Ed._

[112] So we have lately seen five inhabitants of Philadelphia prosecuted

for a riot, for aiding to give effect to a statute of that state

abolishing negro slavery.--_Ed._

[113] The editions of these Reports by the late Serjeant Williams, and by

the present most learned judges, Mr. Justice Patteson and Mr. Justice

Vaughan Williams, illustrated by admirable notes, may be said to embody

the whole common law of England, scattered about, I must confess, rather

immethodically.

[114] The name is spelt no fewer than eight different ways--"Jeffries,"

"Jefferies," "Jefferys," "Jeffereys," "Jefferyes," "Jeffrys," "Jeffryes,"

and "Jeffreys," and he himself spelt it differently at different times of

his life; but the last spelling is that which is found in his patent of

peerage, and which he always used afterwards.

[115] "_Le roy s'avisera_," the royal veto to a bill passed by the two

houses.

[116] Roger L'Estrange was a noted pamphleteer, one of the oracles of the

high church and Tory party, and the founder of the first English

newspaper.--_Ed._

[117] See the account of this trial in the life of North, Lord Guilford,

ante, p. 210.

[118] See ante, p. 220.

[119] See life of Saunders, ante, p. 261.

[120] Evelyn, Oct. 4, 1683. "Sir Geo. Jeffreys was advanced, reputed to be

most ignorant, but most daring."

[121] Stat. 6 Ed. 6 enacted that if any outlaw yielded himself to the

chief justice, &c., within a year, he should be discharged of the

outlawry, and entitled to a jury.

[122] Burn. Own Times, i. 580. "The king accompanied the gift with a piece

of advice somewhat extraordinary from a king to a judge:--'My lord, as it

is a hot summer, and you are going the circuit, I desire you will not

drink too much.'"

[123] Dangerfield had been a confederate of Oates as one of the false

witnesses to the pretended Popish plot.--_Ed._

[124] For the disputes between them, see ante, p. 228-240.

[125] Ante, p. 230.

[126] This rigorous sentence was rigorously executed. On the day on which

Oates was pilloried in Palace Yard, he was mercilessly pelted, and ran

some risk of being pulled in pieces; but in the city his partisans

mustered in great force, raised a riot, and upset the pillory. They were,

however, unable to rescue their favorite. It was supposed that he would

try to escape the horrible doom which awaited him by swallowing poison.

All that he ate and drank was therefore carefully inspected. On the

following morning he was brought forth to undergo his first flogging. At

an early hour an innumerable multitude filled all the streets from Aldgate

to the Old Bailey. The hangman laid on the lash with such unusual severity

as showed that he had received special instructions. The blood ran down in

rivulets. For a time the criminal showed a strange constancy; but at last

his stubborn fortitude gave way. His bellowings were frightful to hear. He

swooned several times; but the scourge still continued to descend. When he

was unbound, it seemed that he had borne as much as the human frame can

bear without dissolution. James was entreated to remit the second

flogging. His answer was short and clear. "He shall go through with it, if

he has breath in his body." An attempt was made to obtain the queen's

intercession, but she indignantly refused to say a word in favor of such a

wretch. After an interval of only forty-eight hours, Oates was again

brought out of his dungeon. He was unable to stand, and it was necessary

to drag him to Tyburn on a sledge. He seemed quite insensible, and the

tories reported that he had stupefied himself with strong drink. A person

who counted the stripes on the second day said that they were seventeen

hundred. The bad man escaped with life, but so narrowly that his ignorant

and bigoted admirers thought his recovery miraculous, and appealed to it

as a proof of his innocence. The doors of the prison closed upon him.

During many months he remained ironed in the darkest hole of Newgate. It

was said that in his cell he gave himself up to melancholy, and sat whole

days uttering deep groans, his arms folded, and his hat pulled over his

eyes. It was not in England alone that these events excited strong

interest. Millions of Roman Catholics, who knew nothing of our

institutions or of our factions, had heard that a persecution of singular

barbarity had raged in our island against the professors of the true

faith, that many pious men had suffered martyrdom, and that Titus Oates

had been the chief murderer. There was, therefore, great joy in distant

countries when it was known that the divine justice had overtaken him.

Engravings of him, looking out from the pillory, and writhing at the

cart's tail, were circulated all over Europe; and epigrammatists, in many

languages, made merry with the doctoral title which he pretended to have

received from the university of Salamanca, and remarked that since his

forehead could not be made to blush, it was but reasonable that his back

should do so.

Horrible as were the sufferings of Oates, they did not equal his crimes.

Nevertheless, the punishment which was inflicted upon him cannot be

justified. In sentencing him to be stripped of his ecclesiastical habit

and imprisoned for life, the judges seem to have exceeded their legal

power. They were undoubtedly competent to inflict whipping, nor had the

law assigned a limit to the number of stripes; but the spirit of the law

clearly was that no misdemeanor should be punished more severely than the

most atrocious felonies. The worst felon could only be hanged. The judges,

as they believed, sentenced Oates to be scourged to death. That the law

was defective, is not a sufficient excuse; for defective laws should be

altered by the legislature, and not strained by the tribunals; and least

of all should the law be strained for the purpose of inflicting torture

and destroying life. That Oates was a bad man is not a sufficient excuse;

for the guilty are almost always the first to suffer those hardships which

are afterward used as precedents for oppressing the innocent. Thus it was

in the present case. Merciless flogging soon became an ordinary punishment

for political misdemeanors of no very aggravated kind. Men were sentenced

for hasty words spoken against the government to pain so excruciating that

they, with unfeigned earnestness, begged to be brought to trial on capital

charges, and sent to the gallows. Happily, the progress of this great evil

was speedily stopped by the revolution, and by that article of the Bill of

Rights which condemns all cruel and unusual punishments.--_Macaulay's

History of England._

[127] Fox's Hist. James, ii. 96.

[128] Macaulay gives the following account of this trial:

"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 Nonconformist 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

long-winded 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.

"Witnesses to character were in attendance, and among them were several

clergymen of the established church. But the chief justice would hear

nothing. 'Does your lordship think,' said Baxter, 'that any jury will

convict a man on such a trial as this?' 'I warrant you, Mr. Baxter,' said

Jeffreys. 'Don't trouble yourself about that.' Jeffreys was right. The

sheriffs were the tools of the government. The jury, selected by the

sheriffs from among the fiercest zealots of the Tory party, conferred for

a moment, and returned a verdict of guilty. 'My lord,' said Baxter, as he

left the court, 'there was once a chief justice who would have treated me

very differently.' He alluded to his learned and virtuous friend, Sir

Matthew Hale. 'There is not an honest man in England,' said Jeffreys, 'but

looks on thee as a knave.'"

[129] It is remarkable that the first common law judge, ever as such

raised to the peerage, was this infamous Jeffreys. We speak of Lord Coke,

Lord Hale, and so of the other chief justices, but they were lords simply

by their surnames and by virtue of their office, and not peers.--_Ed._

[130] Ante, p. 237, _et seq._

[131] Bristol at this time was next to London in population, wealth, and

commerce.--_Ed._

[132] Macaulay states the number of the transported at eight hundred and

forty-one, and of the hanged at three hundred and twenty.--_Ed._

[133] He bought with it a large estate, the name of which the people

changed to Aceldama, as being bought with innocent blood.--_Ed._

[134] Perhaps this writer had in his eye the case of John Tutchin, a noted

political writer, satirized by Pope, a mere boy at the time of the

rebellion, and of whose case Macaulay gives the following account: "A

still more frightful sentence was passed on a lad named Tutchin, who was

tried for seditious words. He was, as usual, interrupted in his defence by

ribaldry and scurrility from the judgment seat. 'You are a rebel; and all

your family have been rebels since Adam. They tell me that you are a poet.

I'll cap verses with you.' The sentence was, that the boy should be

imprisoned seven years, and should, during that period, be flogged through

every market town in Dorsetshire every year. The women in the galleries

burst into tears. The clerk of the arraigns stood up in great disorder.

'My lord,' said he, 'the prisoner is very young. There are many market

towns in our county. The sentence amounts to whipping once a fortnight for

seven years.' 'If he is a young man,' said Jeffreys, 'he is an old rogue.

Ladies, you do not know the villain as well as I do. The punishment is not

half bad enough for him. All the interest in England shall not alter it.'

Tutchin, in his despair, petitioned, and probably with sincerity, that he

might be hanged. Fortunately for him, he was, just at this conjuncture,

taken ill of the small pox, and given over. As it seemed highly improbable

that the sentence would ever be executed, the chief justice consented to

remit it in return for a bribe which reduced the prisoner to poverty. The

temper of Tutchin, not originally very mild, was exasperated to madness by

what he had undergone. He lived to be known as one of the most acrimonious

and pertinacious enemies of the house of Stuart and of the Tory

party."--_Ed._

[135] Ante, p. 000.

[136] One of the strongest testimonies against James is his own letter to

the Prince of Orange, dated Sept. 24, 1685, in which, after giving him

a long account of his fox-hunting, he says, "As for news, there is

little stirring, but that the lord chief justice has almost done his

campaign. He has already condemned several hundreds, some of which

are already executed, some are to be, and the others sent to the

plantations."--_Dalrymple's App._ part ii. 165. The only public man who

showed any bowels of compassion amidst these horrors was Lord Sunderland.

Whig party writers are at great pains to exculpate Pollexfen, the great

Whig lawyer, who conducted all these prosecutions as counsel for the

crown; but I think he comes in for no small share of the infamy then

incurred, and he must be considered as principal _aide de camp_ to

Jeffreys in the _western campaign_. He ought to have told the jury that

there was no case against the Lady Lisle, and when a few examples had been

made, he ought to have stopped the prosecutions, or have thrown up his

briefs.

[137] I hope I have not been prejudiced in my estimate of James's

character by the consideration that when acting as regent in Scotland he

issued an order (afterwards recalled) for the utter suppression of the

name of CAMPBELL, "which," says Mackintosh, "would have amounted to a

proscription of several noblemen, a considerable body of gentry, and the

most numerous and powerful tribe in the kingdom."

[138] This "dispensing power" claimed by Jeffreys and the English judges

for James II. was but a trifle compared to the "dispensing power" recently

claimed by some of our American lawyers and judges for acts of Congress.

All that was claimed for James was, power to dispense with acts of

Parliament, while our American improvers upon this doctrine go so far as

to claim for Congress a power to dispense with and supersede the laws of

God.--_Ed._

[139] Whether diplomatic intercourse with the pope is now forbidden,

depends upon the construction to be put upon the words, "shall hold

_communion_ with the see or church of Rome" in the Bill of Rights. This

seems to refer to _spiritual_ communion only, or the queen would hold

communion with the successor of Mahomet by appointing an ambassador to the

sublime porte.

[140] The strong analogy between these ecclesiastical commissioners and

our recent American slave catching commissioners, both in powers, method

of procedure, and object arrived at, has been already referred to, and can

hardly fail to strike the reader.--_Ed._

[141] Judge Kane, in Passmore Williamson's case, went further than that.

Because he refused to obey the mandate of Judge Kane to produce in his

court certain persons over whom he had no control, with a view to their

surrender to slavery, Judge Kane, under the name of a contempt, sentenced

him to an indefinite imprisonment.--_Ed._

[142] When a peer is tried in Parliament before the House of Lords, the

lord high steward votes like the rest of the peers, who have all a right

to be present; but if the trial be out of Parliament, the lord high

steward is only the judge to give direction in point of law, and the

verdict is by the lords triers specially summoned.

[143] In James's memoirs, all the blame of this prosecution is thrown upon

Jeffreys; but it is more probable that he only recklessly supported his

master.

[144] The arrangement of counsel in this celebrated case was very

whimsical. The bishops were defended by Pemberton, the ex-chief justice,

who had presided at several of the late state trials, by Levinz, Sawyer,

and Finch, who had conducted them very oppressively for the crown, and by

Pollexfen, Treby, and Somers, considered steady Whigs.

[145] It was pretended by the anti-Jacobites, that is, the enemies of

James and the exiled Stuarts, that the infant had been smuggled into the

queen's bed in a warming-pan.--_Ed._

[146] 24th November, 1688. 2 Vernon, 88, _Searle_ v. _Lane_. By a

reference to the minute books in the registrar's office, it appears that

Jeffreys sat again on Monday, Nov. 26, when he decided _Duval_ v.

_Edwards_, a case on exceptions, nine in number, giving a separate

judgment on each. He did not sit on the 27th, but he did on the 28th,

which was the last day of term. So late as the 8th of December he sat and

heard several petitions. In the evening of this day the great seal was

taken from him.

[147] "Bottomry bond." This contraction shows the etymology of an elegant

English word from "bottom," which Dr. Johnson chooses to derive from the

Dutch word "bomme."

[148] _i. e._ The principal being put in hazard, the interest was not

usurious.

[149] The following is from Macaulay's elaborate portraiture of Jeffreys

on the bench: "All tenderness for the feelings of others, all

self-respect, all sense of the becoming, were obliterated from his mind.

He acquired a boundless command of the rhetoric in which the vulgar

express hatred and contempt. The profusion of maledictions and

vituperative epithets which composed his vocabulary could hardly have been

rivalled in the fish-market or the bear-garden. His countenance and his

voice must always have been unamiable; but these natural advantages--for

such he seems to have thought them--he had improved to such a degree that

there were few who, in his paroxysms of rage, could see or hear him

without emotion. Impudence and ferocity sat upon his brow. The glare of

his eyes had a fascination for the unhappy victim on whom they were fixed;

yet his brow and eye were said to be less terrible than the savage lines

of his mouth. His yell of fury, as was said by one who had often heard it,

sounded like the thunder of the judgment day."

[150] Down to this time trials at nisi prius had not assumed their present

shape. The issue being read to the jury, the evidence was given, and with

hardly any speeches from counsel, all seems to have been left to the

judge.

[151] 10 State Trials, 267.

[152] The plan was formed of ruling by a standing army. But without a

Parliament, how was this army to be kept in a proper state of discipline?

In time of war, or during a rebellion, troops in the field were subject to

martial law, and they might be punished, by sentence of a court martial,

for mutiny or desertion. But the country was now in a state of peace and

profound tranquillity; and the common law, which alone prevailed, knew no

distinction between citizen and soldier; so that, if a lifeguardsman

deserted, he could only be sued for breach of contract, and if he struck

his officer, he was only liable to an indictment or an action of battery.

While the king's military force consisted of a few regiments of household

troops, with high pay, desertion was not to be apprehended, and military

offences were sufficiently punished by dismission from the service. But

James found it impossible to govern the numerous army which he had

collected at Hounslow without the assistance of martial law; and he

contended that, without any act of Parliament, he was at all times

entitled, by virtue of his prerogative, to put martial law in force

against military men, although it could only be put in force against

civilians when war or rebellion was raging in the kingdom.

The question first arose at the Old Bailey, before Sir John Holt, then

recorder of London, and he decided against the crown, as might have been

expected; for, while avoiding keen partisanship in politics, he had been

always Whiggishly inclined. James thought he was quite secure by appealing

to the ultra Tory, Lord Chief Justice Herbert. To the utter amazement of

the king and the courtiers, this honorable, although shallow, magistrate

declared that, without an act of Parliament, all laws were equally

applicable to all his majesty's subjects, whether wearing red coats or

gray. Being taunted with inconsistency in respect of his judgment in favor

of the dispensing power, he took this distinction, "that a statute

altering the common law might be suspended by the king, who is really the

lawgiver, notwithstanding the form that he enacts 'with the _assent_ of

the lords spiritual and temporal, and Commons;' but that the common law

cannot be altered by the king's sole authority, and that the king can do

nothing contrary to the common law, as that must be considered coeval with

the monarchy."

James, with the infatuated obstinacy which was now driving him to

destruction, set this opinion at defiance; and, encouraged by Jeffreys,

caused a soldier to be capitally prosecuted, at the Reading assizes, for

deserting his colors. The judges who presided there resorted to some

obsolete, inapplicable act of Parliament, and were weak enough to lay down

the law in the manner suggested to them by the chancellor, so that a

conviction was obtained. To give greater solemnity and _eclat_ to the

execution, the attorney general moved the Court of King's Bench for an

order that it might take place at Plymouth, in sight of the garrison from

which the prisoner had run away. But Herbert peremptorily declared that

the court had no jurisdiction to make such an order, and prevailed on his

brother Wythens to join with him in this opinion. Mr. Attorney took

nothing by his motion, but the recreant chief justice and the recreant

puisne were both next morning dismissed from their offices, to make way

for the most sordid wretches to be picked up in Westminster Hall--Sir

Robert Wright and Sir Richard Allibone, a professed Papist.

[153] The two clergymen who were most applauded on this occasion were the

bold one, who, refusing to obey the royal mandate, took for his text "Be

it known unto thee, O king, that we will not serve thy gods, nor worship

the golden image which thou hast set up;" and the humorous one, who,

having said, "My brethren, I am obliged to read this declaration, but you

are not obliged to listen to it," waited till they were all gone, clerk

and all, before the reading of the declaration began.

[154] More than one American advocate for treating the fugitive slave act

as a law, and submitting to it as such, till repealed, has preached

precisely this doctrine.--_Ed._

[155] 12 State Trials, 183-523.

[156] It was supposed that he was jealous of Williams, the solicitor

general, who had been promised by James the highest offices of the law if

he could convict the bishops. This may account for a sarcasm he levelled

at his rival during the trial. Williams, having accounted for a particular

vote of the House of Commons in the reign of James II., when he himself

was a member and suspected of bribery, said "there was a lump of money in

the case." Wright, in referring to this, observed, "Mr. Solicitor tells

you the reason, 'there was a lump of money in the case;' but I wonder,

indeed, to hear it come from him." Williams, understanding the

insinuation, exclaimed, "My lord, I assure you I never gave my vote for

money in my life."

[157] A similar and alarming reaction towards despotism has exhibited

itself in America since the passage of the fugitive slave act of 1850, in

the combination of so many distinguished jurists and divines to denounce

the doctrine of a "higher law," and to advocate the "divine right" of

Congress to make enactments according to its own pleasure and judgment,

which enactments are to take precedence as rules of conduct of the

individual conscience, which it is attempted to silence by stigmatizing it

as a prejudice. Not only does there seem reason to dread that we may soon

be under legislators and an executive who, believing in the divine right

of those in authority, will not only applaud but act upon the principles

of arbitrary government, we lately have been and still are, so far as the

federal executive and the federal Senate are concerned, under precisely

such ministers and legislators; and having lately had some such experience

of the practical results of such principles in the administration of

justice, what more natural than to compare our sufferings with those of

our British forefathers, and to seek to learn from their experience the

natural cure for such evils?--_Ed._

[158] Jane Johnson's suggestions, on the ground that she was a stranger to

the proceeding, were allowed no weight towards the liberation of

Williamson, and were refused admittance on the files of the court. At the

same time, the suggestions of Mr. Cadwallader, another stranger, were

eagerly clutched at and put upon the record, with a view to better the

position of Judge Kane.

[159] The account of the final proceedings is from the Philadelphia

_Evening Bulletin_.

* * * * *

Transcriber's note:

Footnote 39 appears on page 96 of the text, but there is no corresponding

marker on the page.

Mismatched quotation marks in the original were not corrected.