the chief justice broke forth: 'Pollexfen, I know you well.
I will set a mark on you. You are the patron of the faction.
This is an old rogue, a schismatical knave, a hypocritical
villain. He hates the Liturgy. He would have nothing but
longwinded cant without book;' and then his lordship turned
up his eyes, clasped his hands, and began to sing through
his nose in imitation of what he supposed to be Baxter's
style of praying, 'Lord, we are thy people, thy peculiar
people, thy dear people.' Pollexfen gently reminded the
court that his late majesty had thought Baxter deserving of
a bishopric. 'And what ailed the old blockhead then,' cried
Jeffreys, 'that he did not take it?' His fury now rose
almost to madness. He called Baxter a dog, and swore that it
would be no more than justice to whip such a villain through
the whole city."
"Wallop interposed, but fared no better than his leader.
'You are in all these dirty causes, Mr. Wallop,' said the
judge. 'Gentlemen of the long robe ought to be ashamed to
assist such factious knaves.' The advocate made another
attempt to obtain a hearing, but to no purpose. 'If you do
not know your duty,' said Jeffreys, 'I will teach it you.'
"Wallop sat down, and Baxter himself attempted to put in a
word; but the chief justice drowned all expostulation in a
torrent of ribaldry and invective, mingled with scraps of
Hudibras. 'My lord,' said the old man, 'I have been much
blamed by Dissenters for speaking respectfully of bishops.'
"'Baxter for bishops!' cried the judge; 'that's a merry
conceit indeed. I know what you mean by bishops--rascals
like yourself, Kidderminster bishops, factious, snivelling
Presbyterians!'
"Again Baxter essayed to speak, and again Jeffreys bellowed,
'Richard, Richard, dost thou think we will let thee poison
the court? Richard, thou art an old knave. Thou hast written
books enough to load a cart, and every book as full of
sedition as an egg is full of meat. By the grace of God,
I'll look after thee. I see a great many of your brotherhood
waiting to know what will befall their mighty Don. And
there,' he continued, fixing his savage eye on Bates, 'there
is a doctor of the party at your elbow. But, by the grace of
God Almighty, I will crush you all!'
"Baxter held his peace. But one of the junior counsel for
the defence made a last effort, and undertook to show that
the words of which complaint was made, would not bear the
construction put on them by the information. With this view
he began to read the context. In a moment he was roared
down. 'You sha'n't turn the court into a conventicle!' The
noise of weeping was heard from some of those who surrounded
Baxter. 'Snivelling calves!' said the judge."[32]
[Footnote 32: 1 Macaulay, (Harper's Ed.) 456-8.]
He was sentenced to pay a fine of 500 marks, to lie in prison till he
paid it, and be bound to good behavior for seven years. Jeffreys, it
is said, wished him also to be whipped at the tail of a cart.[33] But
the King remitted his fine.
[Footnote 33: 1 Macaulay, 456; 11 St. Tr. 493.]
Throughout the reign of James II. the courts of law became more and
more contemptible in the eyes of the people. "All the three common law
courts were filled by incompetent and corrupt Judges."[34] But their
power to do evil never diminished.
[Footnote 34: 2 Campbell's Justices, 87.]
9. James II. wished to restore the Catholic form of religion, rightly
looking on Protestantism as hostile to his intended tyranny; so he
claimed a right to dispense with the laws relating thereto, put a
Jesuit into his Privy Council, expelled Protestants from their
offices, and filled the vacancy thus illegally made with Papists; he
appointed Catholic bishops.[35] In 1688 he published a proclamation.
It was the second of the kind,--dispensing with all the laws of the
realm against Catholicism; and ordered it to be read on two specified
Sundays during the hours of service in all places of public worship.
This measure seemed to be a special insult to the Protestants. The
declaration of indulgence was against their conscience, and in
violation of the undisputed laws of the land, but Chief Justice Wright
declared from the bench his opinion that it was "legal and
obligatory," and on the day appointed for reading the decree attended
church "to give weight to the solemnity," and as it was not read--for
the clerk "had forgot to bring a copy,"--he "indecently in the hearing
of the congregation abused the priest, as disloyal, seditious, and
irreligious."
[Footnote 35: See 2 Brewster's Newton, 108.]
But the clergy thought differently from the Chief
Justice--Episcopalians and Dissenters agreeing on this point. Seven
bishops petitioned the King that they might not be obliged to violate
their conscience, the articles of their religion, and the laws of the
realm, by reading the declaration. They presented their petition in
person to the King, who treated it and them with insolence and wrath.
"The king, says Kennet, was not contented to have this
declaration published in the usual manner, but he was
resolved to have it solemnly read in all churches as the
political gospel of his reign. The bishops and clergy were,
of all others the most averse to the subject-matter of the
declaration, as being most sensible of the ill design and
ill effects of it; and therefore the court seemed the more
willing to mortify these their enemies, and make them become
accessory to their own ruin; and even to eat their own dung,
as father Petre proudly threatened, and therefore this order
of council was made and published."[36]
[Footnote 36: 12 St. Tr. 239.]
The petition was printed and published with great rapidity, the
bishops were seized, thrown into the Tower, and prosecuted in the
court for a "false, feigned, malicious, pernicious, and seditious"
libel.
Judge Allybone thus addressed the Jury.
"And I think, in the first place, that _no man can_ take
upon him to _write against the actual exercise of the
government, unless he have leave from the government_, but
he makes a libel, be what he writes true or false; for if
once we come to impeach the government by way of argument,
it is the argument that makes it the government, or not the
government. So that I lay down that, in the first place,
_the government ought not to be impeached by argument_, nor
the exercise of the government shaken by argument; because I
can manage a proposition, in itself doubtful, with a better
pen than another man; this, say I, is a libel.
"Then I lay down this for my next position, that _no private
man can take upon him to write concerning the government at
all_; for _what has any private man to do with the
government_, if his interest be not stirred or shaken? It is
the business of the government to manage matters relating to
the government; it _is the business of subjects to mind only
their own properties and interests_. If my interest is not
shaken, _what have I to do with matters of government_? They
are not within my sphere. If the government does come to
shake my particular interest, the law is open for me, and I
may redress myself by law; and when I intrude myself into
other men's business that does not concern my particular
interest, I am a libeller.
"These I have laid down for plain propositions; now, then,
let us consider further, whether, if I will take upon me to
contradict the government, any specious pretence that I
shall put upon it, shall dress it up in another form and
give it a better denomination? And truly I think it is the
worse, because it comes in a better dress; for by that rule,
every man that can put on a good vizard, may be as
mischievous as he will, to the government at the bottom, so
that, whether it be in the form of a supplication, or an
address, or a petition, if it be what it ought not to be,
let us call it by its true name, and give it its right
denomination--it is a libel."
"The government here has published such a declaration as
this that has been read, relating to matters of government;
and _shall_, or ought _anybody_ to come and _impeach that as
illegal, which the government has done_? Truly, in my
opinion, I do not think he should, or ought; for by this
rule may every act of the government be shaken, when there
is not a parliament _de facto_ sitting.
"When the house of lords and commons are in being, it is a
proper way of applying to the king; there is all the
openness in the world for those that are members of
parliament, to make what addresses they please to the
government, for the rectifying, altering, regulating, and
making of what law they please; but if every private man
shall come and interpose his advice, I think there can never
be an end of advising the government.
"_We are not to measure things from any truth they have in
themselves, but from that aspect they have upon the
government; for there may be every tittle of a libel true,
and yet it may be a libel still_; so that I put no great
stress upon that objection, that the matter of it is not
false; and for sedition, it is that which every libel
carries in itself: and as every trespass implies _vi and
armis_, so every libel against the government carries in it
sedition, and all the other epithets that are in the
information. This is my opinion as to law in general. I will
not debate the prerogatives of the king, nor the privileges
of the subject; but as this fact is, I think these venerable
bishops did meddle with that which did not belong to them;
they took upon them, in a petitionary, to contradict the
actual exercise of the government, which I think no
particular persons, or singular body, may do."[37]
[Footnote 37: 12 St. Tr. 427, 428, 429.]
Listen, Gentlemen of the Jury, to the words of Attorney-General
Powis:--
"And I cannot omit here to take notice, that _there is not
any one thing that the law is more jealous of_, or does more
carefully provide for the prevention and punishment of,
_than all accusations and arraignments of the government. No
man is allowed to accuse even the most inferior magistrate
of any misbehavior in his office_, unless it be in a legal
course, _though the fact is true_. No man may say of a
justice of the peace, to his face, that he is unjust in his
office. _No man may tell a judge, either by word or
petition, you have given an unjust, or an ill judgment_, and
I will not obey it; _it is against the rules and laws of the
kingdom, or the like_. No man may say of the great men of
the nation, much less of the great officers of the kingdom,
that they do act unreasonably or unjustly, or the like;
least of all may any man say any such thing of the king; for
these matters tend to possess the people, that the
government is ill administered; and the consequence of that
is, to set them upon desiring a reformation; and what that
tends to, and will end in, we have all had a sad and too
dear bought experience."[38]
[Footnote 38: 12 St. Tr. 281.]
Hearken to the law of Solicitor-General Williams:--
"If any person have slandered the government in writing, you
are _not to examine the truth of that fact_ in such writing,
but the slander which it imports to the king or government;
and _be it never so true_, yet if slanderous to the king or
the government, _it is a libel and to be punished_; in that
case, _the right or wrong_ is _not to be examined, or if
what was done by the government be legal, or no_; but
whether the party have done such an act. If the king have a
power (for still I keep to that), to issue forth
proclamations to his subjects, and to make orders and
constitutions in matters ecclesiastical, if he do issue
forth his proclamation, and make an order upon the matters
within his power and prerogative; and if any one would come
and bring that power in question otherwise than in
parliament, that the matter of that proclamation be not
legal, I say that is sedition, and you are not to examine
the legality or illegality of the order or proclamation, but
the slander and reflection upon the government."
"If a person do a thing that is libellous, you shall not
examine the fact, but the consequence of it; whether it
tended to stir up sedition against the public, or to stir up
strife between man and man, in the case of private persons;
as if a man should say of a judge, he has taken a bribe, and
I will prove it.
"They tell the king it is inconsistent with their honor,
prudence, and conscience, to do what he would have them to
do. And if these things be not reflective upon the king and
government, I know not what is.
"I'll tell you what they should have done, Sir. If they were
commanded to do any thing against _their consciences, they
should have acquiesced till the meeting of the parliament_.
[At which some people in the court hissed.]
"_If the king will impose upon a man what he cannot do, he
must acquiesce_; but shall he come and fly in the face of
his prince? Shall he say it is illegal? and the prince acts
against prudence, honor, or conscience, and throw dirt in
the king's face? Sure that is not permitted; that is
libelling with a witness."[39]
[Footnote 39: 12 St. Tr. 415, 416, 417.]
Here, however, there was a JURY--the seven bishops were acquitted amid
the tumultuous huzzas of the people, who crowded all the open spaces
in the neighborhood of Westminster Hall, and rent the air with their
shouts, which even the soldiers repeated.[40]
[Footnote 40: See 2 Campbell's Justices, 95.]
Two of the Judges--Sir John Powell and Sir Richard Holloway--stood out
for law and justice, declaring such a petition to the King was not a
libel. They were presently thrust from their offices.
* * * * *
Gentlemen of the Jury, the Stuarts soon filled up the measure of their
time as of their iniquity, and were hustled from the throne of
England. But, alas, I shall presently remind you of some examples of
this tyranny in New England itself. Now I shall cite a few similar
cases of oppression which happened in the reign of the last King of
New England.
I just now spoke of Edmund Thurlow, showing what his character was and
by what means he gained his various offices, ministerial and judicial.
I will next show you one instance more of the evil which comes from
putting in office such men as are nothing but steps whereon despotism
mounts up to its bad eminence.
10. On the 8th of June, 1775,--it will be eighty years on the first
anniversary of Judge Curtis's charge to the grand-jury,--John Horne,
better known by his subsequent name John Horne Tooke, formerly a
clergyman but then a scholarly man devoting himself to letters and
politics--published the following notice in the _Morning Chronicle and
London Advertiser_, as well as other newspapers:--
"King's-Arms Tavern, Cornhill, June 7, 1775. At a special
meeting this day of several members of the Constitutional
Society, during an adjournment, a gentleman proposed that a
subscription should be immediately entered into by such of
the members present who might approve the purpose, for
raising the sum of L100, to be applied to the relief of the
widows, orphans, and aged parents of our beloved American
fellow-subjects, who, faithful to the character of
Englishmen, preferring death to slavery, were for that
reason only inhumanly murdered by the king's troops at or
near Lexington and Concord, in the province of
Massachusetts, on the 19th of last April; which sum being
immediately collected, it was thereupon resolved that Mr.
Horne do pay to-morrow into the hands of Mess. Brownes and
Collinson, on account of Dr. Franklin, the said sum of
100_l._ and that Dr. Franklin be requested to apply the same
to the above-mentioned purpose."
At that time Thurlow, whom I introduced to you a little while ago, was
Attorney-General, looking for further promotion from the Tory
Government of Lord North. Mansfield was Chief Justice, a man of great
ability, who has done so much to reform the English law, but whose
hostility to America was only surpassed by the hatred which he bore to
all freedom of speech and the rights of the Jury. The Government was
eager to crush the liberty of the American Colonies. But this was a
difficult matter, for in England itself there was a powerful party
friendly to America, who took our side in the struggle for liberty.
The city of London, however, was hostile to us, wishing to destroy our
merchants and manufacturers, who disturbed the monopoly of that
commercial metropolis. The government thought it necessary to punish
any man who ventured to oppose their tyranny and sympathize with
America. Accordingly it was determined that Mr. Horne should be
brought to trial. But as public opinion, stimulated by Erskine, Camden
and others, favored the rights of the Jury, it seems to have been
thought dangerous to trust the case to a Grand-Jury. Perhaps the Judge
had no brother-in-law to put on it, or the Attorney-General--though
famous also for his profanity,--doubted that any _swearing_ of his
would insure a bill; nay, perhaps he did not venture to "bet ten
dollars that I will get an indictment against him." Be that as it may,
the Attorney-General dispensed with the services of the Grand-Jury and
filed an information _ex officio_ against Mr. Horne, therein styling
him a "wicked, malicious, seditious, and ill-disposed person;"
charging him, by that advertisement, with "wickedly, maliciously, and
seditiously intending, designing, and venturing to stir up and excite
discontents and sedition;" "to cause it to be believed that divers of
his Majesty's innocent and deserving subjects had been inhumanly
murdered by ... his Majesty's troops; and unlawfully and wickedly to
encourage his Majesty's subjects in the said Province of Massachusetts
to resist and oppose his Majesty's Government." He said the
advertisement was "a false, wicked, malicious, scandalous, and
seditious libel;" "full of ribaldry, Billingsgate, scurrility,
balderdash, and impudence;" "wicked is a term too high for this
advertisement;" "its impudence disarmed its wickedness." In short, Mr.
Horne was accused of "resisting an officer," obstructing the execution
of the "process" whereby the American Provinces were to be made the
slave colonies of a metropolitan despotism. The usual charge of doing
all this by "force and arms," was of course thrown in. The publication
of the advertisement was declared a "crime of such heinousness and of
such a size as fairly called for the highest resentment which any
court of justice has thought proper to use with respect to crimes of
this denomination;" "a libel such that it is impossible by any
artifice to aggravate it;" "It will be totally impossible for the
imagination of any man, however shrewd, to state a libel more
scandalous and base in the fact imputed, more malignant and hostile to
the country in which the libeller is born, more dangerous in the
example if it were suffered to pass unpunished, than this:" "It is in
language addressed to the lowest and most miserable mortals, ... it is
addressed to the lowest of the mob, and the bulk of the people, who it
is fit should be otherwise taught, who it is fit should be otherwise
governed in this country."
Mr. Horne was brought to trial on the 4th of July, 1777. He defended
himself, but though a vigorous writer, he was not a good speaker, and
was in a strange place, while "Thurlow fought on his own dunghill,"
says Lord Campbell, "and throughout the whole day had the advantage
over him." There was a special jury packed for the purpose by the
hireling sheriff,--a "London jury" famous for corruption,--a
tyrannical and powerful judge, ready to turn every weapon of the court
against the defendant and to construct law against the liberty of
speech. Of course Mr. Horne was convicted.
But how should he be punished? Thurlow determined.
"My Lords, the punishments to be inflicted upon misdemeanors
of this sort, have usually been of three different kinds;
fine, corporal punishment by imprisonment, and infamy by the
judgment of the pillory. With regard to the _fine_, it is
impossible for justice to make this sort of punishment,
however the infamy will always fall upon the offender;
because it is well known, that men who have more wealth, who
have better and more respectful situations and reputations
to be watchful over, employ men in desperate situations both
of circumstances and characters, in order to do that which
serves their party purposes; and when the punishment comes
to be inflicted, this court must have regard to the apparent
situation and circumstances of the man employed, that is, of
the man convicted, with regard to the punishment.
"With regard to _imprisonment_, that is a species of
punishment not to be considered alike in all cases, but ...,
that it would be proper for the judgment of the court to
state circumstances which will make the imprisonment fall
lighter or heavier, ... that would be proper, if I had not
been spared all trouble upon that account, by hearing it
solemnly avowed ... by the defendant himself, that
imprisonment was no kind of inconvenience to him; for that
certain employments, ... would occasion his confinement in
so close a way, that it was mere matter of circumstance
whether it happened in one place or another; and that the
longest imprisonment which this court could inflict for
punishment, was not beyond the reach of accommodation which
those occasions rendered necessary to him. In this respect,
therefore, imprisonment is not only, ... not an adequate
punishment to the offence, but the public are told, ... that
it will be _no punishment_.
"I stated in the third place to your Lordships, _the pillory
to have been the usual punishment for this species of
offence_. I apprehend it to have been so, in this case, for
above two hundred years before the time when prosecutions
grew rank in the Star-Chamber ... the punishment of the
pillory was inflicted, not only during the time that such
prosecutions were rank in the Star-Chamber, but it also
continued to be inflicted upon this sort of crime, and that
by the best authority, after the time of the abolishing the
Star-Chamber, after the time of the Revolution, and while my
Lord Chief Justice Holt sat in this court.
"I would desire no better, no more pointed, nor any more
applicable argument than what that great chief justice used,
when it was contended before him that an abuse upon
government, upon the administration of several parts of
government, amounted to nothing, because there was no abuse
upon any particular man. That great chief justice said, they
amounted to much more; they are _an abuse upon all men_.
Government cannot exist, if the law cannot restrain that
sort of abuse. Government cannot exist, unless ... the full
punishment is inflicted which the most approved times have
given to offences of much less denomination than these, of
much less. I am sure it cannot be shown, that in any one of
the cases that were punished in that manner, the
aggravations of any one of those offences were any degree
adequate to those which are presented to your Lordship now.
If offences were so punished then, which are not so punished
now, they lose that expiation which the wisdom of those ages
thought proper to hold out to the public, as a restraint
from such offences being committed again.
"I am to judge of crimes in order to the prosecution; your
lordship is to judge of them ultimately for punishment. I
should have been extremely sorry, if I had been induced by
any consideration whatever, to have brought a crime of the
magnitude which this was (of the magnitude which this was
when I first stated it) into a court of justice, if I had
not had it in my contemplation also that it would meet with
an adequate restraint, which I never thought would be done
without affixing to it the _judgment of the pillory_; I
should have been very sorry to have brought this man here,
after all the aggravations that he has superinduced upon the
offence itself, if I had not been persuaded that those
aggravations would have induced the _judgment of the
pillory_."[41]
[Footnote 41: 20 St. Tr. 780-783.]
But Mansfield thought otherwise, and punished him with a fine of L200
and imprisonment for twelve months.[42]
[Footnote 42: 20 St. Tr. 651; 5 Campbell, 415.]
"Thus," says Lord Brougham, "a bold and just denunciation of the
attacks made upon our American Brethren, which nowadays would rank
among the very mildest and tamest effusions of the periodical press,
condemned him to prison for twelve months."[43]
[Footnote 43: Statesmen, 2 Series, 109.]