three. He was descended from one of the Barons who wrung the Great
Charter from the hands of King John in 1618 [Transcriber's Note: for
'1618' read '1215'; see Errata], and in 1628 dwelt in the same house
which sheltered the more venerable head of his Welsh ancestor. In 1628
he was made judge by Charles I. He broke down the laws of the realm to
enable the king to make forced loans on his subjects, and by his
special mandate (Lettre de Cachet) to imprison whom he would, as long
as it pleased him, and without showing any reason for the commitment
or the detention! Yes, he supported the king in his attempt to shut up
members of parliament for words spoken in debate in the house of
commons itself; to levy duties on imports, and a tax of ship-money on
the land. He was summoned before parliament for his offences against
public justice, and finally deprived of office, though ungratefully,
by the king himself.[15]
[Footnote 15: Account of him in Preface to his Reports, (1675); 3 St.
Tr. 162, 293, 844, 1181; 2 Parl. Hist. 869; 1 Rushworth, 661, _et
al._; Whitlocke, 14, _et al._]
2. Thomas Twysden was counsel for George Coney in 1655, a London
merchant who refused to pay an illegal tax levied on him by
Cromwell--who followed in the tyrannical footsteps of the king he
slew. Twysden was thrown into the Tower for defending his client--as
Mr. Sloane, at Sandusky, has just been punished by the honorable court
of the United States for a similar offence,--but after a few days made
a confession of his "error," defending the just laws of the land,
promised to offend no more, and was set at liberty, ignominiously
leaving his client to defend himself and be defeated. This Twysden was
made judge by Charles II. The reporters recording his decisions put
down "_Twysden in furore_," thinly veiling the judicial wrath in
modest Latin. He was specially cruel against Quakers and other
dissenters, treating George Fox, Margarett Fell, and John Bunyan with
brutal violence.[16]
[Footnote 16: 6 St. Tr. 634; 1 Campbell Justices, 442.]
3. Sir John Kelyng is another obscure judge of those times. In the
civil war he was a violent cavalier, and "however fit he might be to
_charge_ the Roundheads under Prince Rupert, he was very unfit to
_charge_ a jury in Westminster Hall." In 1660 he took part in the
trial of the Regicides and led in the prosecution of Colonel Hacker,
who in 1649 had charge of the execution of Charles I. In 1662 he took
part in the prosecution of Sir Henry Vane, and by his cruel subtlety
in constructing law, that former governor of Massachusetts,--one of
the most illustrious minds of England, innocent of every crime, was
convicted of high treason and put to death.[17] For this service, in
1663 Kelyng was made a judge; and then, by loyal zeal and judicial
subserviency, he made up "for his want of learning and sound sense."
But he was so incompetent that even the court of Charles II. hesitated
to make him more than a puny judge. But he had been a "valiant
cavalier," and had done good service already in making way with such
as the king hated, and so after the death of Sir Nicolas Hyde, he was
made Lord Chief Justice in his place. "In this office," says Judge
Campbell, he "exceeded public expectation by the violent, fantastical,
and ludicrous manner in which he conducted himself."[18] But I will
not now anticipate what I have to say of him in a subsequent part of
this defence.
[Footnote 17: 6 St. Tr. 161.]
[Footnote 18: 1 Campbell Justices, 401.]
Gentlemen of the Jury, we shall meet these three together again before
long, and I shall also speak of them "singly or in pairs." In the mean
time I will mention one similar appointment in the reign of George the
III.--the last king of New England.
* * * * *
In 1770 Sergeant Glynn, in Parliament, moved for an inquiry into the
administration of criminal justice. Edmund Thurlow, a rough venal man,
then recently appointed solicitor-general, proposed that a severe
censure should be passed on him for the motion. Thurlow wanted the
trial by jury abolished in all cases of libel, so that the liberty of
the people should be in the exclusive care of government attorneys and
judges appointed by the crown. Hear him speak on the 6th of December,
1770.
"In my opinion no man should be allowed with impunity to
make a wanton attack upon such venerable characters as the
judges of the land. We award costs and damages to the
aggrieved party in the most trifling actions. By what
analogy, then, can we refuse the same justice in the most
important cases, to the most important personages? If we
allow every pitiful patriot thus to insult us with
ridiculous accusations, without making him pay forfeit for
his temerity, we shall be eternally pestered with the
humming and buzzing of these stingless wasps. Though they
cannot wound or poison, they will tease and vex. They will
divert our attention from the important affairs of State to
their own mean antipathies, and passions, and prejudices.
Did they not count upon the spirit of the times and imagine
that the same latitude which is taken by the libellers is
here allowable, they would not have dared to offer so gross
an outrage. I hope we shall now handle them so roughly as to
make this the last of such audacious attempts. They are
already ridiculous and contemptible. To crown their
disgrace, let us inflict some exemplary punishment. Else
none of us is safe. Virtue and honor, you see from this
instance, are no safeguard from their attacks."
"The nature, the direct effect, and the remote consequences
of a State libel, are so complicated and involved with
various considerations of great pith and moment, that few
juries can be adequate judges. So many circumstances are at
once to be kept in view, so many ponderous interests are to
be weighed, so many comparisons to be made, and so many
judgments formed, that the mind of an ordinary man is
distracted and confounded, and rendered incapable of coming
to any regular conclusion. None but a judge, a man that has
from his infancy been accustomed to decide intricate cases,
is equal to such a difficult task. If we even suppose the
jury sufficiently enlightened to unravel those knotty
points, yet there remains an insuperable objection. In State
libels, their passions are frequently so much engaged, that
they may be justly considered as parties concerned against
the crown."
"In order, therefore, to preserve the balance of our
constitution, _let us leave to the judges_, as the most
indifferent persons, _the right of determining the malice or
innocence of the intention_."
"It is not that I think the intention a matter of fact; no,
in the sense put upon it by the judges, it is a matter of
law."
"Much dust has been raised about civil and criminal actions.
But to what purpose? Is not reparation to be made to the
public for any injury which it may have sustained, as much
as to an individual? Is the welfare of the nation in
general, of less consequence than that of a single person?
Where then is the propriety of making such a bustle about
the malice or innocence of the intention? The injury done is
the only proper measure of the punishment to be inflicted,
as well as of the damage to be assessed. Since you cannot
plead the intention as a mitigation in the latter case,
neither can you in the former."[19]
[Footnote 19: 16 Parl. Hist. 1291, 1292, 1293.]
What followed? On the 23d of July, 1771, he was made Attorney-General.
His subsequent history did not disappoint the prophecy uttered above
by his former conduct and his notorious character. "In truth his
success was certain, with the respectable share he possessed of real
talents and of valuable requirements--strongly marked features,
piercing eyes, bushy eyebrows, and a sonorous voice, all worked to the
best effect by an immeasurable share of self-confidence--he could not
fail."[20] He hated America with the intense malignity of a low but
strong and despotic nature, and "took a most zealous part and uttered
very violent language against the colonists. He scorned the very
notion of concession or conciliation; he considered 'sedition' and
'treason,' (like _tobacco_ and _potatoes_,) the peculiar plants of the
American soil. The natives of these regions he thought were born to be
taxed."[21] He favored the Stamp Act, the Coercion Bill,--quartering
soldiers upon us, sending Americans beyond seas for trial,--the Boston
Port Bill, and all the measures against the colonies. "To say that we
have a right to tax America and never exercise that right, is
ridiculous, and a man must abuse his understanding very much not to
allow of that right;" "the right of taxing was never in the least
given up to the Americans."[22] On another occasion he said, that "as
attorney-general he had a right to set aside every charter in
America."[23] What followed? Notwithstanding his youthful profligacy,
the open profanity of his public and private speech, and his living in
public and notorious contempt of matrimony,--he was made Lord
Chancellor and elevated to the peerage in 1778! Him also we shall meet
again.
[Footnote 20: 5 Campbell, 398.]
[Footnote 21: 5 Campbell, 410.]
[Footnote 22: 17 Parl. Hist. 1313.]
[Footnote 23: 18 St. Tr. 999.]
Gentlemen of the Jury, I might as well try to bale all the salt water
out of the sea as to mention every glaring and notorious instance
where an oppressive government has appointed some discarder of all
Higher Law for its servant in crushing the People. Come therefore to
the next point.
* * * * *
(II.) The next step is by means of _such Judges to punish and destroy
or silence men who oppose the wickedness of the party in power, and
the encroachments of despotism_. Let me describe the general mode of
procedure, and then illustrate it by special examples.
1. In the Privy Council, or elsewhere, it is resolved to punish the
obnoxious men,--and the business is intrusted to the law-officers of
the crown, appointed for such functions.
2. They consult and agree to pervert and twist the law--statute or
common--for that purpose. By this means they gratify their master, and
prepare future advancement for themselves.
3. The precedent thus established becomes the basis for new operations
in the future, and may be twisted and perverted to serve other cases
as they occur.
Now, Gentlemen, look at some examples taken from British history, in
times of the same Kings mentioned before.
1. In 1610 two Puritans for refusing the _ex officio_ oath, were
clapped in Jail by the commissioners. They were brought on _habeas
corpus_ before a court, and Mr. Fuller, their counsel, a learned
lawyer, insisted that they were imprisoned without due process of law.
For this "contempt of court" he was thrown into jail by Archbishop
Bancroft, whence he was rescued only by death.[24]
[Footnote 24: Peirce's Vindication, (1717,) 174.]
2. In 1613 there were many murmurs among the People of England at the
tyranny of James. Fine and imprisonment did not quell the disturbance;
so a more dreadful example was thought needful. The officials of
Government broke into the study of Rev. Edmund Peacham, a Protestant
minister, sixty or seventy years old. In an uncovered cask they found
a manuscript sermon, never preached, nor designed for the pulpit or
the press, never shown to any one. It contained some passages which
might excite men to resist tyranny. He was arrested, and thrown into
Jail, all his papers seized. The Government resolved to prosecute him
for high treason. Francis Bacon, the powerful and corrupt
Attorney-General, managed the prosecution. Before trial was ventured
upon, he procured an extrajudicial opinion of the Judges appointed for
such services,--irregularly given, out of court, that they would
declare such an act high treason.
But a manuscript sermon, neither preached nor designed for the public,
was hardly evidence enough of treason even for such Judges--so
purchased, for such an Attorney--so greedy of preferment, with such a
Cabinet and such a King. For all those, like the Pharisees of old,
"feared the People." So their victim was tortured on the rack, and
twelve leading questions prepared by the Government officials, were
put to him there. I quote Secretary Winwood's record--still extant in
his own handwriting--"He was this day examined before torture, in
torture, between torture, and after torture; notwithstanding nothing
could be drawn from him, he still persisting in his obstinate and
insensible denials and former answers." Bacon was present at the
torture, which took place in the Tower, Jan. 19, 1614, O.S. (30th Jan.
1615, N.S.). In August he was tried for high treason--"compassing and
imagining the King's death"--before a packed jury; against law, and
without legal evidence. He was of course found guilty under the ruling
of the Court! But public opinion, even then making tyrants "tremble in
their capitals," was so indignant at the outrage that the execution
was not ventured on, and he was left to languish in Jail, till on the
27th of March, 1616, a King more merciful took the old minister where
the wicked cease from troubling.[25]
[Footnote 25: 2 St. Tr. 869; 16 Montagu's Bacon, clxvi.; 2 Campbell,
291.]
In this case, Gentlemen of the Jury, you will notice three violations
of the law.
(1.) The opinion of the Judges before the trial was extrajudicial and
illegal.
(2.) The application of torture was contrary to law.
(3.) The statute of Treason was wrested to apply to this case--and a
crime was constructed by the servants of the court.
It is curious to read the opinion of James himself. "The British
Solomon" thus wrote:--
"So the only thing the Judges can doubt of is of the
delinquent's intention, on his bare denial to clear him
[himself], since nature teaches every man to defend his life
as he may; and whether in case there was a doubt herein, the
Judges should not rather incline to that side [namely, the
side of the Government,] wherein all probability lies: but
if Judges will needs trust rather the bare negative of an
_infamous delinquent_--then all the probabilities, or rather
infallible consequences upon the other part, caring more for
the safety of _such a monster_ than the preservation of a
crown in all ages following, whereupon depend the lives of
many millions, happy then are all _desperate and seditious
knaves_, but the fortune of this crown is more than
miserable. Which God forefend."[26]
[Footnote 26: 2 St. Tr. 879.]
3. In 1633, Laud, a tyrannical, ambitious man, and a servile creature
of the King, mentioned before, was made Archbishop of Canterbury,
continuing Bishop of London at the same time. Charles I. was strongly
inclined to Romanism, Laud also leaned that way, aiming to come as
near as possible to the Papal and not be shut out of the English
Church. He made some new regulations in regard to the Communion Table
and the Lord's Supper. John Williams, before mentioned, Dean of
Westminster and Bishop of Lincoln, who had been Lord Keeper under King
James, wrote a book against those innovations; besides, in his
episcopal court he had once spoken of the Puritans as "good subjects,"
and of his knowing "that the King did not wish them to be harshly
dealt with." In 1637 Laud directed that he should be prosecuted in the
Star-Chamber for "publishing false news and tales to the scandal of
his Majesty's government;" and "for revealing counsels of State
contrary to his oath of a Privy Counsellor." He was sentenced to pay a
fine of L10,000,--equal to $50,000, or thrice the sum in these times;
to be suspended from all offices, and kept a close prisoner in the
Tower during the King's pleasure--whence the Revolution set him at
liberty. Besides he wrote private letters to Mr. Osbalderston, and
called Laud "the little great man," for this he, in 1639, was fined
L5,000 to the King, and L3,000 to the Archbishop. Osbalderston in his
letters had spoken of the "great Leviathan" and the "little Urchin,"
and was fined L5,000, to the King, and the same to the Archbishop, and
sentenced also to stand in the pillory with his ears nailed to it![27]
[Footnote 27: 3 St. Tr. 769; 2 Campbell, 400.]
4. In 1629 Richard Chambers, a merchant of London, complained to the
Privy Council of some illegal and unjust treatment, and declared "that
the merchants in no part of the world are so screwed and wrung as in
England; that in Turkey they have more encouragement." Laud, who hated
freedom of speech and liberal comments on the government as much as
"eminent citizens" nowadays, is said to have told the king, "If your
majesty had many such Chambers, you would soon have no Chamber left to
rest in." The merchant was tried before the "commissioners" at the
Star-Chamber, and fined L2,000, and condemned to make a "submission
for his great offence,"[28] which the stout Puritan refused to do, and
was kept in prison till the Court of King's Bench, faithful to the
law, on Habeas Corpus, admitted him to bail: for which they were
reprimanded. Laud and all the ecclesiastical members of the
"commission" wished his fine L3,000.
[Footnote 28: 3 St. Tr. 373; Franklyn, 361; 2 Hallam (Paris, 1841), 6
_ac etiam_ 13; 2 Mrs. Macaulay, 16, 45, 65.]
5. In his place in Parliament in 1629, Sir John Eliot, one of the
noblest men in England's noblest age, declared that "the Council and
Judges had all conspired to trample underfoot the liberties of the
subject." Gentlemen, the fact was as notorious as the advance of the
Slave Power now is in America. But a few days after the king (Charles
I.) had dismissed his refractory Parliament, Eliot, with Hollis, Long,
Selden, Strode, and Valentine, most eminent members of the commons,
and zealous for liberty and law, was seized by the king's command and
thrown into prison. The Habeas Corpus was demanded--it was all in
vain, for Laud and Strafford were at the head of affairs, and the
priests and pliant Judges in Westminster Hall--Jones was one of
them--clove down the law of the land just as their subcatenated
successors did in Boston in 1851. The court decreed that they should
be imprisoned during the king's pleasure, and not released until
making submission and giving security for good behavior. Eliot was
fined L2,000, Hollis and Valentine in smaller sums. Eliot--the brave
man--refused submission, and died in the Tower. Thus was the attack
made on all freedom of speech in Parliament![29]
[Footnote 29: 3 St. Tr. 293; 1 Rushworth; 2 Hallam, 2; 2 Parl. Hist.
488, 504; Foster's Eliot, 100; 2 Mrs. Macaulay, ch. i. ii.]
6. In 1630, the very year of the first settlement of Boston, on the
4th of June, Rev. Dr. Alexander Leighton was brought before the Court
of High Commission, in the Star-Chamber, to be tried for a seditious
libel. He had published "An Appeal to the Parliament, or a Plea
against Prelacy," a work still well known, remonstrating against
certain notorious grievances in church and State, "to the end the
Parliament might take them into consideration and give such redress as
might be for the honor of the king, the quiet of the people, and the
peace of the church," the court of commissions accounted it "a most
odious and heinous offence, deserving the most serious punishment the
court could inflict, for framing a book so full of such pestilent,
devilish, and dangerous assertions." The two Chief Justices declared
if the case had been brought to their courts, they would have
proceeded against him for Treason, and it was only "his majesty's
exceeding great mercy and goodness" which selected the milder
tribunal. His sentence was a fine of L10,000, to be set in the
pillory, whipped, have one ear cut off; one side of his nose slit, one
cheek branded with S.S., Sower of Sedition, and then at some
convenient time be whipped again, branded, and mutilated on the other
side, and confined in the Fleet during life! Before the punishment
could be inflicted he escaped out of prison, but was recaptured and
the odious sentence fully executed. Those who "obstructed" the officer
in the execution of that "process" were fined L500 a piece.[30]
Gentlemen of the Jury, which do you think would most have astonished
the Founders of Massachusetts, then drawing near to Boston, that trial
on the 4th of June, 1630, or this trial, two hundred and twenty-five
years later? At the court of Charles it was a great honor to mutilate
the body of a Puritan minister.
[Footnote 30: 3 St. Tr. 383; Laud's Diary, 4th November; 2 Hallam,
28.]
But not only did such judges thus punish the most noble men who wrote
on political matters, there was no freedom of speech allowed--so
logical is despotism!
7. William Prynn, a zealous Puritan and a very learned lawyer, wrote a
folio against theatres called "a Scourge for Stage-Players," dull,
learned, unreadable and uncommon thick. He was brought to the
Star-Chamber in 1632-3, and Chief Justice Richardson--who had even
then "but an indifferent reputation for honesty and veracity"--gave
this sentence: "Mr. Prynn, I do declare you to be a Schism-Maker in
the Church, a Sedition-Sower in the Commonwealth, a wolf in sheep's
clothing; in a word 'omnium malorum nequissimus'--[the wickedest of
all scoundrels]. I shall fine him L10,000, which is more than he is
worth, yet less than he deserveth; I will not set him at liberty, no
more than a plagued man or a mad dog, who though he cannot bite, yet
will he foam; he is so far from being a sociable soul that he is not a
rational soul; he is fit to live in dens with such beasts of prey as
wolves and tygers like himself; therefore I do condemn him to
perpetual Imprisonment, as those monsters that are no longer fit to
live among men nor to see light." "I would have him branded in the
forehead, slit in the nose, and his ears cropped too." The sentence
was executed the 7th and 10th of May, 1633.[31] But nothing
intimidated, the sturdy man committed other offences of like nature,
"obstructing" other "officers," and was punished again, and banished.
But on the summoning of Parliament returned to England, and became
powerful in that Revolution which crushed the tyrants of the time.
[Footnote 31: 3 St. Tr. 561; 2 Hallam, 28, and his authorities. See
also 2 Echard, 109, _et seq._, 124, _et seq._, 202, 368, 510; the
remarks of Hume, Hist. ch. lii., remind me of the tone of the fugitive
slave bill Journals of Boston in 1850-54.]
8. In 1685, James II. was in reality a Catholic. He wished to restore
Romanism to England and abolish the work of the Reformation, the
better to establish the despotism which all of his family had sought
to plant. He was determined to punish such as spoke against the Papal
Church, though no law prohibited such speaking. Judge Jeffreys, a
member of the cabinet and favorite of the king, was at that time chief
justice--abundantly fit for the work demanded of him. The pious and
venerable Richard Baxter was selected for the victim. Let Mr. Macaulay
tell the story.
"In a Commentary on the New Testament, he had complained,
with some bitterness, of the persecution which the
Dissenters suffered. That men, who, for not using the
Prayerbook, had been driven from their homes, stripped of
their property, and locked up in dungeons, should dare to
utter a murmur, was then thought a high crime against the
State and Church. Roger Lestrange, the champion of the
government, and the oracle of the clergy, sounded the note
of war in the Observator. An information was filed. Baxter
begged that he might be allowed some time to prepare for his
defence. It was on the day on which Oates was pilloried in
Palace Yard that the illustrious chief of the Puritans,
oppressed by age and infirmities, came to Westminster Hall
to make this request. Jeffreys burst into a storm of rage.
'Not a minute,' he cried, 'to save his life. I can deal with
saints as well as with sinners. There stands Oates on one
side of the pillory; and if Baxter stood on the other, the
two greatest rogues in the kingdom would stand together.'"
"When the trial came on at Guildhall, a crowd of those who
loved and honored Baxter, filled the court. At his side
stood Doctor William Bates, one of the most eminent
Non-conformist divines. Two Whig barristers of great note,
Pollexfen and Wallop, appeared for the defendant."