swaggering, insolent manner, debauched in his morals beyond the
grossness of that indecent age,--ostentatiously living in public
concubinage,--a notorious swearer in public and private. But he knew
no law above the will of the hand that fed and could advance him, no
justice which might check the insolence of power. And in less than a
month after Mr. Horne was sent to jail, Thurlow was made Lord
Chancellor of England, and sat on the woolsack in the House of Lords.
His chief panegyrist can only say, "in worse times there have been
worse chancellors." "But an age of comparative freedom and refinement
has rarely exhibited one who so ill understood, or at least so ill
discharged, the functions of a statesman and legislator."
I will enrich this part of my argument with an example of the opinions
of this Judge, which would endear him to the present administration
in America, and entitle him to a high place among southern
politicians. In 1788 a bill was brought into Parliament to mitigate
the horrors of the African slave-trade. The Lord Chancellor, Thurlow,
opposed it and said:--
"It appears that the French have offered premiums to
encourage the African [slave] trade, and that they have
succeeded. The natural presumption therefore is, that _we
ought to do the same_. For my part, my Lords, I have no
scruple to say that if the 'five days' fit of philanthropy'
[the attempt to abolish the slave-trade] which has just
sprung up, and which has slept for twenty years together,
were allowed to sleep one summer longer, it would appear to
me rather more wise than thus to take up a subject
piecemeal, which it has been publicly declared ought not to
be agitated at all till next session of Parliament. Perhaps,
by such imprudence, the slaves themselves may be prompted by
their own authority, to proceed at once to a 'total and
immediate abolition of the trade.' One witness has come to
your Lordship's bar with a face of woe--his eyes full of
tears, and his countenance fraught with horror, and said,
'_My Lords, I am ruined if you pass this bill! I have risked
L30,000 on the trade this year! It is all I have been able
to gain by my industry, and if I lose it I must go to the
hospital!_' I desire of you to think of such things, my
Lords, in your _humane phrensy, and to show some humanity to
the whites as well as to the negroes_."[44]
[Footnote 44: 5 Campbell, 460; 27 Parl. Hist. 638.]
One measure of tyranny in the hands of such Judges is Constructive
Crime, a crime which the revengeful, or the purchased judge distils
out of an honest or a doubtful deed, in the alembic he has made out of
the law broken up and recast by him for that purpose, twisted, drawn
out, and coiled up in serpentine and labyrinthine folds. For as the
sweet juices of the grape, the peach, the apple, pear, or plumb may be
fermented, and then distilled into the most deadly intoxicating
draught to madden man and infuriate woman, so by the sophistry of a
State's Attorney and a Court Judge, well trained for this work, out of
innocent actions, and honest, manly speech, the most ghastly crimes
can be extorted, and then the "leprous distilment" be poured upon the
innocent victim,
"And a most instant tetter barks about,
Most lazar-like, with vile and loathsome crust,
All his smooth body!"
Here is an example. In 1668 some London apprentices committed a riot
by pulling down some houses of ill-fame in Moorfields, which had
become a nuisance to the neighborhood; they shouted "Down with Bawdy
Houses." Judge Kelyng had them indicted for High Treason. He said it
was "an accroachment of royal authority." It was "levying war." He
thus laid down the law. "The prisoners are indicted for levying war
against the King. By levying war is not only meant when a body is
gathered together as an army, but if a _company of people will go
about any public reformation, this is high treason_. These people do
pretend their design was against brothels; now let men to go about to
pull down brothels, with a captain [an apprentice "walked about with a
green apron on a pole"] and an ensign and weapons,--if this thing be
endured, _who is safe_? It is high treason because it doth betray the
peace of the nation, and _every subject is as much wronged as the
King_; for if every man may reform what he will, no man is safe;
therefore the thing is of desperate consequence, and we must make this
for a public example. There is reason why we should be very cautious;
we are but recently delivered from rebellion [Charles I. had been
executed nineteen years before, and his son had been in peaceable
possession of the throne for eight years], and we know that that
rebellion first began under the pretence of religion and the law; for
the Devil hath always this vizard upon it. We have great reason to be
very wary that we fall not again into the same error. Apprentices for
the future shall not go on in this manner. It proved that Beasly went
as their captain with his sword, and flourished it over his head [this
was the "weapons,"] and that Messenger walked about Moorfields with a
green apron on the top of a pole [this was the "ensign"]. What was
done by one, was done by all; in high treason all concerned are
principals."[45]
[Footnote 45: 1 Campbell's Justices, 404-5; Kelyng's Reports, 70.]
Thereupon thirteen apprentices who had been concerned in a riot were
found guilty of high treason, sentenced, and four hanged. All of the
eleven Judges--Twysden was one of them--concurred in the sentence,
except Sir Matthew Hale. He declared there was no treason committed;
there was "but an unruly company of apprentices."[46]
[Footnote 46: 6 St. Tr. 879, note 911.]
This same Judge Kelyng, singularly thick-headed and ridiculous, loved
to construct crimes where the law made none. Thus he declares, "in
cases of high treason, if any one do any thing by which he showeth his
_liking_ and _approbation_ to the Traitorous Design, this is in him
High Treason. For all are Principals in High Treason, who contribute
towards it by Action or Approbation."[47] He held it was an overt act
of treason to print a "treasonable proposition," such as this, "The
execution of Judgment and Justice is as well the people's as the
magistrates' duty, and if the magistrates pervert Judgment, the people
are bound by the law of God to execute judgment without them and upon
them."[48] So the printer of the book, containing the "treasonable
proposition," was executed. A man, by name Axtell, who commanded the
guards which attended at the trial and execution of Charles I., was
brought to trial for treason. He contended that he acted as a soldier
by the command of his superior officer, whom he must obey, or die. But
it was resolved that "that was no excuse, for his superior was a
Traitor and all that joined with him in that act were Traitors, and
did by that approve the Treason, and when the command is Traitorous,
then the Obedience to that Command is also Traitorous." So Axtell must
die. The same rule of course smote at the head of any private soldier
who served in the ranks![49]
[Footnote 47: Kelyng's Reports, 12.]
[Footnote 48: Ibid. 22.]
[Footnote 49: Kelyng's Reports, 13.]
These wicked constructions of treason by the court, out of small
offences or honest actions, continued until Mr. Erskine attacked them
with his Justice, and with his eloquence exposed them to the
indignation of mankind, and so shamed the courts into humanity and
common sense.[50] Yet still the same weapon lies hid under the
Judicial bench as well of England as of America, whence any malignant
or purchased Judge, when it suits his personal whim or public
ambition, may draw it forth, and smite at the fortune, the reputation,
or the life of any innocent man he has a private grudge against, but
dares not meet in open day. Of this, Gentlemen of the Jury, in due
time.
[Footnote 50: See his Defence of Hardy, 24 St. Tr. 877.]
* * * * *
The mass of men, busy with their honest work, are not aware what power
is left in the hands of judges--wholly irresponsible to the people;
few men know how they often violate the laws they are nominally set to
administer. Let me take but a single form of this judicial
iniquity--the Use of Torture, borrowing my examples from the history
of our mother country.
In England the use of torture has never been conformable either to
common or to statute law; but how often has it been practised by a
corrupt administration and wicked judges! In 1549 Lord Seymour of
Sudley, Admiral of England, was put to the torture;[51] in 1604 Guy
Fawkes was "horribly racked."[52] Peacham was repeatedly put to
torture as you have just now heard, and that in the presence of Lord
Bacon himself in 1614.[53] Peacock was racked in 1620, Bacon and Coke
both signing the warrant for this illegal wickedness,--"he deserveth
it as well as Peacham did," said the Lord Chancellor, making his own
"ungodly custom" stand for law.[54] In 1627 the Lord Deputy of Ireland
wanted to torture two priests, and Charles I. gave him license, the
privy council consenting--"all of one mind that he might rack the
priests if he saw fit, and hang them if he found reason!"[55] In 1628
the judges of England solemnly decided that torture was unlawful; but
it had always been so,--and Yelverton, one of the judges, was a member
of the commission which stretched Peacham on the rack.[56] Yet, spite
of this decision, torture still held its old place, and a warrant from
the year 1610 still exists for inflicting this illegal atrocity on a
victim of the court.[57] Yet even so late as 1804, when Thomas Pictou,
governor of Trinidad, put a woman to tortures of the most cruel
character, by the connivance of the court he entirely escaped from all
judicial punishment.[58] Yes, torture was long continued in England
itself, though not always by means of thumbscrews and Scottish boots
and Spanish racks; the monstrous chains, the damp cells, the perpetual
irritation which corrupt servants of a despotic court tormented their
victims withal, was the old demon under another name.[59] Nay, within
a few months the newspapers furnish us with examples of Americans
being put to the torture of the lash to force a confession of their
alleged crime--and this has been done by the power which this court
has long been so zealous to support--the Slave Power of America.
[Footnote 51: See 2 St. Tr. 774, note.]
[Footnote 52: 1 Jardine, Crim. Tr. 16.]
[Footnote 53: 2 St. Tr. 871.]
[Footnote 54: 1 Jardine, 19.]
[Footnote 55: Ibid.]
[Footnote 56: 3 St. Tr. 371. See 30 St. Tr. 892.]
[Footnote 57: 1 Jardine, 20. See Emlyn, Preface to St. Tr. in 1
Hargrave, p. iii.]
[Footnote 58: 30 St. Tr. 225.]
[Footnote 59: See case of Huggins in 17 St. Tr. 297, 309.]
It has been well said:--
"It must be owned that the Guards and Fences of the law have
not always proved an effectual security for the subject. The
Reader will ... find many Instances wherein they who hold
the sword of Justice did not employ it as they ought to in
punishment of Evil-Doers, but to the Oppression and
Destruction of Men more righteous than themselves. Indeed it
is scarce possible to frame a Body of Laws which a
tyrannical Prince, influenced by wicked Counsellors and
corrupt Judges, may not be able to break through.... The Law
itself is a dead letter. Judges are the interpreters of it,
and if they prove men of no Conscience nor Integrity, they
will give what sense they will to it, however different from
the true one; and when they are supported by superior
authority, will for a while prevail, till by repeated
iniquities they grow intolerable and throw the State into
convulsions which may at last end in their own ruin. This
shows how valuable a Blessing is an upright and learned
Judge, and of what great concern it is to the public that
none be preferred to that office but such whose Ability and
Integrity may be safely depended on."[60]
[Footnote 60: 1 Hargrave's St. Tr. 6.]
Thus, Gentlemen of the Jury, is it that judges who know no law but the
will of "the hand that feeds them," appointed for services rendered to
the enemies of mankind and looking for yet higher rewards, have sought
to establish the despotism of their masters on the ruin of the People.
But the destruction of obnoxious individuals is not the whole of their
enormity; so I come to the next part of the subject.
(III.) The next step is for such judges to interpret, wrest, and
pervert the laws so as to prepare for prospective Acts of Tyranny.
Here, Gentlemen of the Jury, I shall have only too many examples to
warn you with.
Early in his reign James I. sought to lay burthensome taxes on the
people without any act of Parliament; this practice was continued by
his successors.
1. In 1606 came "the great Case of Impositions," not mentioned in the
ordinary histories of England. The king assumed the right to tax the
nation by his own prerogative. He ordered a duty of five shillings on
every hundred pounds of currants imported into the kingdom to be
levied in addition to the regular duty affixed by Act of Parliament.
This was contrary to law, nay, to the Constitution of England, her
Magna Charta itself provided against unparliamentary taxation. Sir
John Bates, a London merchant, refused to pay the unlawful duty, and
was prosecuted by information in the Star-Chamber. "The courts of
justice," says Mr. Hallam, "did not consist of men conscientiously
impartial between the king and the subject; some corrupt with hopes of
promotion, many more fearful of removal, or awe-struck by the fear of
power." On the "trial" it was abundantly shown that the king had no
right to levy such a duty. "The accomplished but too pliant judges,
and those indefatigable hunters of precedents for violations of
constitutional government, the great law-officers of the crown,"
decided against the laws, and Chief Justice Fleming maintained that
the king might lay what tax he pleased on imported goods! The corrupt
decision settled the law for years--and gave the king absolute power
over this branch of the revenue, involving a complete destruction of
the liberty of the people,--for the Principle would carry a thousand
measures on its back.[61] The king declared Fleming a judge to his
"heart's content." Bacon's subserviency did not pass unrewarded. Soon
after James issued a decree under the great seal, imposing heavy
duties on almost all merchandise "to be for ever hereafter paid to the
king and his successors, on pain of his displeasure."[62] Thus the
Measure became a Principle.
[Footnote 61: 2 St. Tr. 371, and 11 Hargrave, 29; 1 Campbell's
Justices, 204.]
[Footnote 62: 1 Hallam, 231. See 1 Parl. Hist. 1030, 1132, 1150;
Baker's Chronicle, 430.]
2. James, wanting funds, demanded of his subjects forced contributions
of money,--strangely called "Benevolences," though there was no
"good-will" on either side. It was clearly against the fundamental
laws of the kingdom. Sir Oliver St. John refused to pay what was
demanded of him, and wrote a letter to the mayor of Marlborough
against the illegal exaction. For this he was prosecuted in the
Star-Chamber in 1615 by Attorney-General Bacon. The court, with Lord
Chancellor Ellesmere at its head, of course decided that the king had
a right to levy Benevolences at pleasure. St. John was fined five
thousand pounds, and punished by imprisonment during the king's
pleasure. This decision gave the king absolute power over all property
in the realm,--every private purse was in his hands![63] With such a
court the king might well say, "Wheare any controversyes arise, my
Lordes the Judges chosene betwixte me and my people shall discide and
rulle me."[64]
[Footnote 63: 2 St. Tr. 899; 1 Hallam, 251; 2 Campbell, 291.]
[Footnote 64: 1 Parl. Hist. 1156.]
3. Charles I. proceeded in the steps of his father: he levied forced
loans. Thomas Darnel and others refused to pay, and were put in prison
on a General Warrant from the king which did not specify the cause of
commitment. They brought their writs of _habeas corpus_, contending
that their confinement was illegal. The matter came to trial in 1627.
Sir Randolf Crewe, a man too just to be trusted to do the iniquity
desired, was thrust out of office, and Sir Nicolas Hyde appointed
chief justice in his place. The actual question was, Has the king a
right to imprison any subject forever without process of law? It was
abundantly shown that he had no such right. But the new chief justice,
put in power to oppress the people, remembering the hand that fed him,
thus decreed,--"Mr. Attorney hath told you that the _king hath done
it, and we trust him in great matters_, and he is bound by law, and he
bids us proceed by law; ... and we make no doubt but _the king_, if
you look to him, he knowing the cause why you are imprisoned, _he will
have mercy_; but that we believe that ... he cannot deliver you, but
_you must be remanded_." Thus the judges gave the king absolute power
over the liberties of any subject.[65]
[Footnote 65: 3 St. Tr. 1. See also 2 Parl. Hist. 288; 1 Rushworth and
1 Mrs. Macaulay, 341.]
But the matter was brought up in Parliament and discussed by men of a
different temper, who frightened the judge by threats of impeachment,
and forced the king to agree to the PETITION OF RIGHT designed to put
an end to all such illegal cruelty. Before Charles I. would sign that
famous bill, he asked Judge Hyde if it would restrain the king "from
committing or restraining a subject _without showing cause_." The
crafty judge answered, "_Every law_, after it is made, _hath its
exposition, which is to be left to the courts of justice to
determine_; and although the Petition be granted _there is no fear of
[such a] conclusion as is intimated in the question_!" That is, the
court will interpret the plain law so as to oppress the subject and
please the king! As the judges had promised to annul the law, the
king signed it.[66] Charles dissolved Parliament and threw into jail
its most noble and powerful members--one of whom, Eliot, never left
the prison till death set him free.[67] The same chief justice gave an
extrajudicial opinion justifying the illegal seizure of the
members,--"that a parliament man committing an offence against the
King in Parliament not in a parliamentary course, may be punished
after the Parliament is ended;" "that by false slanders to bring the
Lords of the Council and the Judges, not in a parliamentary way, into
the hatred of the people and the government into contempt, was
punishable out of Parliament, in the Star-Chamber, as an offence
committed in Parliament beyond the office, and beside the duty of a
parliament man."[68] Thus the judges struck down freedom of speech in
Parliament.
[Footnote 66: 1 Campbell, Justices, 311; 2 Parl. Hist. 245, 350, 373,
408, _et al._; 3 St. Tr. 59.]
[Footnote 67: See above, p. 29.]
[Footnote 68: 1 Campbell's Justices, 315.]
4. In 1634 Charles I. issued a writ levying ship-money, so called, on
some seaport towns, without act of Parliament. London and some towns
remonstrated, but were forced to submit, all the courts being against
them. Chief Justice Finch, "a servile tool of the despotic court,"
generalized this unlawful tax, extending it to inland towns as well as
seaboard, to all the kingdom. All landholders were to be assessed in
proportion to their property, and the tax, if not voluntarily paid,
collected by force. The tax was unpopular, and clearly against the
fundamental law of the kingdom. But if the government could not get
the law on its side it could control its interpreters, for "every law
hath its exposition." So the Judges of Assize were ordered in their
circuits to tell the people to _comply with the order and pay the
money_! The King got all extrajudicial opinion of the twelve Judges
delivered irregularly, out of court, in which they unanimously
declared that in time of danger the _King might levy such tax as he
saw fit, and compel men to pay it_. He was the sole judge of the
danger, and of the amount of the tax.[69]
[Footnote 69: 3 St. Tr. 825. See the opinion of the Judges with their
twelve names, 844, and note [dagger symbol].]
John Hampden was taxed twenty shillings--he refused to pay, though he
knew well the fate of Richard Chambers a few years before. The case
came to trial in 1637, in the Court of Exchequer before Lord
Chancellor Coventry, a base creature, mentioned before. It was "the
great case of Ship-money." The ablest lawyers in England showed that
the tax was contrary to Magna Charta, to the fundamental laws of the
realm, to the Petition of Right and to the practice of the kingdom.
Hampden was defeated. Ten out of the twelve Judges sided with the
King. Croke as the eleventh had made up his mind to do the same, but
his noble wife implored him not to sacrifice his conscience for fear
of danger, and the Woman, as it so often happens, saved the man.[70]
Attorney-General Banks thus set forth the opinion of the Government,
and the consequent "decision" of the Judges. He rested the right of
levying Ship-money on the "intrinsic, absolute authority of the King."
There was no Higher Law in Old England in 1634! Banks said, "this
power [of arbitrary and irresponsible taxation] is innate in the
person of an absolute King, and in the persons of the Kings of
England. All-magistracy it is of nature; and obedience and subjection
[to] it is of nature. This power is not anyways derived from the
people, but reserved unto the King when positive laws first began. For
the King of England, he is an absolute monarch; nothing can be given
to an absolute prince but what is inherent in his person. He can do no
wrong. He is the sole judge and we ought not to question him, whom the
law trusts we ought not to distrust." "The Acts of Parliament contain
no express words to take away so high a prerogative; and the King's
prerogative, even in lesser matters, is always saved, where express
words do not restrain it."[71]
[Footnote 70: Whitelocke, Memor. 25.]
[Footnote 71: 2 Hallam, 16.]
It required six months of judicial labor to bring forth this result,
which was of "infinite disservice to the crown." Thereupon Mr. Hallam
says:--
"Those who had trusted to the faith of the judges were
undeceived by the honest repentance of some, and looked with
indignation on so prostituted a crew. That respect for
courts of justice which the happy structure of our Judicial
administration has in general kept inviolate, was exchanged
for distrust, contempt, and a desire of vengeance. They
heard the speeches of some of the Judges with more
displeasure than even their final decision. Ship-money was
held lawful by Finch and several other Judges, not on the
authority of precedents which must in their nature have some
bounds, but on principles subversive of every property or
privilege in the subject. Those paramount rights of
monarchy, to which they appealed to-day in justification of
Ship-money, might to-morrow serve to supersede other laws,
and maintain more exertions of despotic power. It was
manifest by the whole strain of the court lawyers that no
limitations on the King's authority could exist but by the
King's sufferance. This alarming tenet, long bruited among
the churchmen and courtiers, now resounded in the halls of
justice."[72]
[Footnote 72: 2 Hallam, 18.]
Thus by the purchased vote of a corrupt Judiciary all the laws of
Parliament, all the customs of the Anglo-Saxon tribe, Magna Charta
itself with its noble attendant charters, were at once swept away, and
all the property of the kingdom put into the hands of the enemy of the
People. These four decisions would make the King of England as
absolute as the Sultan of Turkey, or the Russian Czar. If the opinion
of the Judges in the case of Impositions and Ship-money were accepted
in law,--then all the Property of the People was the King's; if the
courts were correct in their judgments giving the King the power by
his mere will to imprison any subject, during pleasure, and also to do
the same even with members of Parliament and punish them for debates
in the House of Commons, then all liberty was at an end, and the
King's Prerogative extended over all acts of Parliament, all property,
all persons.