and complete the chain. That work was delegated to clergymen purchased
for the purpose--Rev. Dr. Robert Sibthorpe and Rev. Dr. Roger
Mainwaring. The first in a sermon "of rendering all their dues,"
preached and printed in 1627, says, "the Prince who is the Head, and
makes his Court and Council, it is his duty to direct and make laws.
'He doth whatsoever pleaseth him;' 'where the word of the King is
there is power, and who may say unto him, What doest thou?'" And
again, "If Princes command any thing which subjects may not perform,
because it is against the Laws of God, or of Nature, or impossible;
yet Subjects are bound to undergo the punishment, without either
resisting, or railing, or reviling, and are to yield a Passive
Obedience where they cannot exhibit an Active one, ... but in all
others he is bound to active obedience."[73]
[Footnote 73: Cited in Franklyn, 208; 1 Rushworth, 422, 436, 444.]
Mainwaring went further, and in two famous sermons--preached, one on
the 4th of July, 1628, the other on the 29th of the same
month--declared that "the King is not bound to observe the Laws of the
Realm concerning the Subject's Rights and Liberties, but that his
_Royal will and Command_, in imposing Loans, and Taxes, without
consent of Parliament, _doth oblige the subject's conscience upon pain
of eternal damnation_. That those who refused to pay this Loan
offended against the Law of God and the King's Supreme Authority, and
became guilty of Impiety, Disloyalty, and Rebellion. And that the
authority of Parliament is not necessary for the raising of Aid and
Subsidies; and that the slow proceedings of such great Assemblies were
not fitted for the Supply of the State's urgent necessities, but would
rather produce sundry impediments to the just designs of Princes."
"_That Kings partake of omnipotence with God._"[74]
[Footnote 74: Franklyn, 208, 592. These two Sermons were published in
a volume with the title "Religion and Allegiance."... "Published by
his Majesty's special command." (London, 1628.) Prof. Stuart seems
inspired by this title in giving a name to his remarkable
publication--written with the same spirit as Dr. Mainwaring's--"Conscience
and the Constitution." (Andover, 1851.) See 3 St. Tr. 335; 1
Rushworth, 422, 436, 585, _et al._; 1 Hallam, 307; 2 Parl. Hist. 388,
410.]
The nation was enraged. Mainwaring was brought before Parliament,
punished with fine and imprisonment and temporary suspension from
office and perpetual disability for ecclesiastical preferment. But the
King who ordered the publication of the sermons, and who doubtless had
induced him to preach them, immediately made him Rector of Stamford
Parish, soon appointed him Dean of Worcester, and finally in 1645 made
him Bishop of St. David's. A few years ago such clerical apostasy
would seem astonishing to an American. But now, Gentlemen of the Jury,
so rapid has been the downfall of public virtue, that men filling the
pulpits once graced and dignified by noblest puritanic piety, now
publicly declare there is no law of God above the fugitive slave bill.
Nay, a distinguished American minister boldly proclaimed his readiness
to send his own Mother (or "Brother") into eternal bondage! Thus
modern history explains the old; and the cheap bait of a republican
bribe can seduce American dissenters, as the wealthy lure of royal
gifts once drew British churchmen into the same pit of infamy. Alas,
hypocrisy is of no sect or nation.
Gentlemen, the Government of England once decreed "that every
clergyman, four times in the year, should instruct his parishioners in
the Divine right of Kings, and the damnable sin of resistance."[75] No
Higher Law! America has ministers who need no act of Parliament to
teach them to do the same; they run before they are sent.
[Footnote 75: 2 Campbell, 460; 1 Rushworth, 1205.]
6. After the head of one Stuart was shorn off and his son had
returned, no wiser nor better than his father, the old progress of
despotism began anew. I pass over what would but repeat the former
history, and take two new examples to warn the nation with, differing
from the old only in form.
In 1672, Charles II. published a proclamation denouncing rigorous
penalties against all such as _should speak disrespectfully of his
acts_, or _hearing others thus speak should not immediately inform the
magistrates_! Nay, in 1675, after he had sold himself to the French
king, and was in receipt of an annual pension therefrom, he had this
test-oath published for all to sign: "I do solemnly declare that _it
is not lawful upon any pretence whatever to take up arms against the
king_, ... and that _I will not_, at any time to come, _endeavor the
alteration of the government_, either in Church or State."[76]
[Footnote 76: Carroll's Counter Revolution (Lond. 1846), 99, _et
seq._]
An oath yet more stringent was enforced in Scotland with the edge of
the sword, namely, to defend all the prerogatives of the crown, "_never
without the king's permission to take part in any deliberations upon
ecclesiastical or civil affairs; and never to seek any reform in
Church or State_."
Notwithstanding all that the Charleses had done to break down the
liberty of Englishmen, still the great corporate towns held out,
intrenched behind their charters, and from that bulwark both annoyed
the despot and defended the civil rights of the citizen. They also
must be destroyed. So summons of _quo warranto_ were served upon them,
which frightened the smaller corporations and brought down their
charters. Jeffreys was serviceable in this wicked work, and on his
return from his Northern Circuit, rich with these infamous spoils, as
a reward for destroying the liberties of his countrymen, the king
publicly presented him with a ring, in token of "acceptance of his
most eminent services." This fact was duly blazoned in the Gazette,
and Jeffreys was "esteemed a mighty favorite," which, "together with
his lofty airs, made all the charters, like the walls of Jericho, fall
down before him, and he returned, laden with surrenders, the spoil of
towns."[77]
[Footnote 77: 8 St. Tr. 1038, and the quotations from North (Examen.)
Sprat, and Roger Coke, in note on p. 1041, _et seq._ See, too, Fox,
James II. p. 48, 54, and Appendix, Barillon's Letter of Dec. 7th,
1684.]
London still remained the strong-hold of commerce, of the Protestant
Religion, and of liberal Ideas in domestic Government; for though
subsequently corrupted by lust of gain, which sought a monopoly, the
great commercial estates and families of England were not then on the
side of Despotism, as now strangely happens in America.
When the king sought to ruin Shaftesbury,--a corrupt man doubtless,
but then on the side of liberty, the enemy of encroaching
despotism,--a London Grand-Jury refused to find a bill, and was warmly
applauded by the city. Their verdict of IGNORAMUS was a "personal
liberty bill" for that time, and therefore was the king's wrath
exceeding hot, for "Ignoramus was mounted in Cathedra," and there was
a stop put to such wickedness. So London must be brought down. She
refused to surrender her Charter. In 1682 the king proceeded to wrest
it from her by the purchased hand of the courts of law. But even they
were not quite adequate to the work. So Chief Justice Pemberton was
displaced, and Saunders,--a man as offensive in his personal habit of
body as he was corrupt in conduct and character--was put in his
office. Dolbin, too just for the crime demanded of him, was turned
out, and Withins made to succeed him. For "so great a weight was there
at stake as could not be trusted to men of doubtful principles," says
North. Saunders, who had plotted this whole matter, was struck with an
apoplexy when sentence was to be given, but sent his opinion in
writing. Thus on the judgment given by only two judges, who assigned
no reasons for their decision, it was declared that the Charter of
London was forfeit, and the liberties and franchises of the city
should "be seized into the king's hands."[78]
[Footnote 78: 2 Hallam, 333; Burnet, Own Times (London, 1838), 350; 8
St. Tr. 1039, 1081 note, 1267, _et seq._; 2 Campbell, Justices, 63;
North's Examen. 626; Fox, 54.]
Thus fell the charter of London! Gentlemen of the Jury, the same sword
was soon to strike at the neck of New England; the charter of
Massachusetts could not be safe in such a time.
In 1686 James II. wished to destroy Protestantism,--not that he loved
the Roman form of religion, but that tyranny which it would help him
get and keep. So he claimed the right by his royal prerogative to
dispense with any laws of the land. Of the twelve Judges of England
eight were found on his side, and the four unexpectedly proven
faithful were at once dismissed from office and their places filled
with courtiers of the king, and the court was unanimous that the king
had a constitutional right to destroy the constitution. Then he had
not only command of the purses of his subjects and their bodies, but
also of their mind and conscience, and could dictate the actual
Religion of the People as well as the official "religion" of the
priests.[79]
[Footnote 79: 11 St. Tr. 1165; 12 Ibid. 358.]
One State-secret lay at the bottom of the Stuarts' plans,--to appoint
base men for judges, and if by accident a just man came upon the
bench, to keep him in obscurity or to hustle him from his post. What
names they offer us--Kelyng, Finch, Saunders, Wright, Jeffreys,
Scroggs![80] infamous creatures, but admirable instruments to destroy
generous men withal and devise means for the annihilation of the
liberties of the people. Historians commonly dwell on the fields of
battle, recording the victories of humanity, whereof the pike and gun
were instruments; but pass idly over the more important warfare which
goes on in the court house, only a few looking on, where lawyers are
the champions of mankind, and the battle turns on a sentence; nay, on
a word which determines the welfare of a nation for ages to come. On
such little hinges of law do the great gates hang, and open or shut to
let in the happiness or the ruin of millions of men! Naseby and
Worcester are important places truly, venerable for great deeds.
Cromwell and Blake are names not likely to perish while men can
appreciate the heroism which sheds blood. But Westminster Hall has
rung with more important thunder than cannon ever spoke, and Pym and
Selden, St. John and Hampden--nay, Penn, Bunyan, Fox, Lilburne--have
done great service for mankind. Gentlemen of the Jury, it is a matter
of great magnitude which hinges on the small question of fact and law
to-day. You are to open or shut for Humanity. If the People make
themselves sheep there will be wolves enough to eat you up.
[Footnote 80: This last name is thought to be extinct in Great
Britain, but I find one Thomas Scruggs _in Massachusetts_ in 1635 _et
post_, 1 Mass. Records (1628-1641), index.]
It is difficult to calculate the amount of evil wrought by such
corrupt judges as I have spoken of; they poison the fountains of
society. I need not speak of monsters like Scroggs and Jeffreys, whose
names rot in perpetual infamy, but creatures less ignoble, like
Wright, Saunders, Finch, Kelyng, Thurlow, Loughborough, and their
coadjutors, must be regarded as far more dangerous than thieves,
murderers, or pirates. A cruel, insolent Judge selecting the worst
customs, the most oppressive statutes, and decisions which outrage
human nature--what an amount of evil he can inflict on groaning
humanity!
* * * * *
Gentlemen of the Jury, in this long sad history of judicial tyranny in
England there is one thing particularly plain: such judges hate
freedom of speech, they would restrict the Press, the Tongue, yes, the
Thought of mankind. Especially do they hate any man who examines the
actions of the government and its servile courts, and their violation
of justice and the laws. They wish to take exemplary and malignant
vengeance on all such. Let me freshen your knowledge of some examples.
1. In 1410 the government made a decree "that whatsoever they were
that should rede the Scriptures in the mother tongue, they should
forfeit land, catel, body, lif, and godes from their heyres forever,
and so be condempned for heretykes to God, enemies to the crowne, and
most errant traiters to the land." The next year, in _one day
thirty-nine persons were first hanged and then burned for this
"crime."_[81]
[Footnote 81: 1 St. Tr. 252.]
2. In 1590, Mr. Udall, a Puritan minister, published a book,
"Demonstrations of Discipline," not agreeable to the authorities. He
was brought to a trial for a Felony,--not merely a "misdemeanor." The
jury were ordered by the judge to find him guilty of that crime if
they were satisfied that he published the book,--for the court were to
judge whether the deed amounted to that crime! He was found "guilty,"
and died in jail after nearly three years of cruel confinement.[82]
[Footnote 82: 1 St. Tr. 1271; 1 Neal's Puritans (N.Y. 1844), 190. See
16 Parl. Hist. 1276, where Mr. Dunning says this is the first example
of such a charge to a jury.]
3. In 1619 one Williams of Essex wrote a book explaining a passage in
the book of Daniel as foretelling the death of James I. in 1621. He
inclosed the manuscript in a box, sealed it, and secretly conveyed it
to the king. For this he was tried for high treason, and of course
executed. "_Punitur Affectus, licet non sequatur Effectus_," said the
court, for "_Scribere est agere_," "Punish the wish though the object
be not reached," for "writing is doing!"[83]
[Footnote 83: 2 St. Tr. 1085.]
4. In 1664 Mr. Keach, a Baptist, published a "Childs' Instructer, or a
New and Easy Primmer," in which he taught the doctrines of his sect,
"that children ought not to be baptized" but only adults; "that laymen
may preach the gospel." He was brought before Lord Chief Justice Hyde,
who after insulting the prisoner, thus charged the grand-jury:--"He is
a base and dangerous fellow; and if this be suffered, children by
learning of it will become such as he is, and therefore I hope you
will do your duty." Of course such a jury indicted him. The "trial"
took place before Judge Scroggs; the Jury were at first divided in
opinion. "But," said the Judge, "you must agree!" So they found him
guilty. He was fined "L20, twice set in the pillory, and bound to make
public submission."[84]
[Footnote 84: 7 St. Tr. 687.]
5. In 1679 George Wakeman and others were tried for high treason
before Scroggs, whose conduct was atrocious, and several pamphlets
were published commenting on the ridiculous and absurd conduct of this
functionary, "Lord Chief Justice Scroggs." One Richard Radley in a
bantering talk had bid another man "Go to Weal Hall, to my Lord
Scroggs, _for he has received money enough of Dr. Wakeman_!" Radley
was indicted for "speaking scandalous words of Chief Justice Scroggs."
Whereupon at the opening of the court that eminent officer, who did
not disdain to wreak public and judicial vengeance on heads that
wrought his private and personal grief, made a speech setting forth
his magisterial opinions on the liberty of the press. Doubtless this
court knows original authority for the opinions they follow; but for
your instruction, Gentlemen of the Jury, I will give you the chief
things in the judicial speech of Scroggs, Lord Chief Justice of the
Supreme Court of England in 1679.[85]
[Footnote 85: 6 St. Tr. 701; see Dunning in 16 Parl. Hist. 1276, _et
seq._]
"For these hireling scribblers who traduce it [the fairness
and equality of the trial in which he had been notoriously
unfair and unequal], who write to eat, and lie for bread, I
intend to meet with them another way; for they are only safe
while they can be secret; but so are vermin, so long as they
can hide themselves.... They shall know that the law wants
not the power to punish a libellous and licentious press,
nor I a resolution to exact it. And this is all the answer
is fit to be given (besides a whip) to these hackney
writers." "However, in the mean time, the _extravagant
boldness of men's pens and tongues is not to be endured, but
shall be severely punished_; for if once causes come to be
tried with complacency to particular opinions, and shall be
innocently censured if they go otherwise, public causes
shall all receive the doom as the multitude happen to be
possessed; and at length any cause shall become public ...
at every session the Judges shall be arraigned, the Jury
condemned, and the verdicts overawed to comply with popular
wish and indecent shouts."
"There are a set of men ... that too much approve and
countenance such vulgar ways, ... that embrace all sorts of
informations, true or false, likely or impossible, nay
though never so silly and ridiculous, they refuse none; so
shall all addresses be made to them, and they be looked on
as the only patrons of religion and government!"
His associates chimed in with accordant howl. Puny Judge Jones
declared,--
"We have a particular case here before us, as a matter of
scandal against a great Judge, the _greatest Judge in the
kingdom_, in criminal causes [the Lord Chancellor Nottingham
was greater in _civil_ causes]; and it is a great and an
high charge upon him. And certainly there was never any age,
I think, more licentious than this in aspersing governors,
scattering of libels and _scandalous speeches against those
that are in authority_: and without all doubt _it doth
become the court to show their zeal in suppressing it_." [It
was 'resisting an officer.'] "That trial [of Dr. Wakeman]
was managed with _exact justice and perfect integrity_. And
therefore I do think it very fit that this person be
proceeded against by an information, that he may be made _a
public example_ to all such as shall presume to scandalize
the government, and the governors, with any false aspersions
and accusations."
Accordingly Mr. Radley, for that act, was convicted of speaking
"scandalous words against the Lord Chief Justice Scroggs" and fined
L200.[86]
[Footnote 86: 7 St. Tr. 701.]
Mr. Hudson says of the Star-Chamber, "So tender the court is of
upholding the honor of the sentence, as they will punish them who
speak against it with great severity."[87]
[Footnote 87: In 2 Collectanea Juridica, 228.]
6. In 1680 Benjamin Harris, a bookseller, sold a work called "An
Appeal from the country to the city for the Preservation of his
Majesty's Person, Liberty, Property, and the Protestant Religion." He
was brought to trial for a libel, before Recorder Jeffreys and Chief
Justice Scroggs who instructed the jury they were only to inquire _if
Harris sold the book_, and if so, find him "guilty." It was for the
court to determine what was a libel. He was fined five hundred pounds
and placed in the pillory; the Chief Justice wished that he might be
also whipped.[88]
[Footnote 88: 7 St. Tr. 925.]
7. The same year Henry Carr was brought to trial. He published a
periodical--"the Weekly Packet of advice from Rome, or the History of
Popery"--hostile to Romanism. Before the case came to court, Scroggs
prohibited the publication on his own authority. Mr. Carr was
prosecuted for a libel before the same authority, and of course found
guilty. The character of that court also was judgment against natural
right. Jane Curtis and other women were in like manner punished for
speaking or publishing words against the same "great judge."[89] And
it was held to be a "misdemeanor" to publish a book reflecting on the
justice of the nation--the truer the book the worse the libel! It was
"obstructing an officer," and of course it was a greater offence to
"obstruct" him with Justice and Truth than with wrong and lies. The
greater the justice of the act the more dangerous the "crime!" If the
language did not hit any one person it was "malice against all
mankind."
[Footnote 89: 7 St. Tr. 1111, 959; 4 Parl. Hist. 1274.]
8. In 1684 Sir Samuel Barnardiston was brought to trial charged with a
"High Misdemeanor." He had written three private letters to be
sent--it was alleged--by post to his friend, also a private man. The
letters do not appear designed for any further publication or use;
they related to matters of news, the events of the day and comments
thereon, and spoke in praise of Algernon Sidney and Lord Russell who
were so wickedly beheaded about the time the letters were written. It
would require a microscopic eye to detect any evil lurking there.
Jeffreys presided at the trial, and told the jury:--
"The letters are _factious, seditious, and malicious
letters, and as base as the worst of mankind could ever have
invented_." "And if he be guilty of it--the greater the man
is the greater the crime, and the more understanding he has,
the more malicious he seems to be; for your little ordinary
sort of people, that are of common mean understanding, they
may be wheedled and drawn in, and surprised into such
things; but men of a public figure and of some value in the
world that have been taken to be men of the greatest
interest and reputation in a party, it cannot be thought a
hidden surprise upon them; no, it is a work of time and
thought, it is a thing fixed in his very nature, and it
_shows so much venom as would make one think the whole mass
of his blood were corrupt_." "Here is the matter he is now
accused of, and here is in it malice against the king,
malice against the government, malice against both Church
and State, malice against any man that bears any share in
the government, indeed malice against all mankind that are
not of the same persuasion with these bloody miscreants."
"Here is ... the sainting of two horrid conspirators! Here
is the Lord Russell sainted, that blessed martyr; Lord
Russell, that good man, that excellent Protestant, he is
lamented! And here is Mr. Sidney sainted, what an
extraordinary man he was! Yes, surely he was a very good
man--and it is a shame to think that such bloody miscreants
should be sainted and lamented who had any hand in that
horrid murder [the execution of Charles I.] and treason ...
who could confidently bless God for their being engaged in
that good cause (as they call it) which was the rebellion
which brought that blessed martyr to his death. It is high
time for all mankind that have any Christianity, or fear of
Heaven or Hell, to bestir themselves, to rid the nation of
such caterpillars, such monsters of villany as those are!"
Of course the packed jury found him guilty; he was fined L10,000.[90]
[Footnote 90: 7 St. Tr. 1333.]
Gentlemen of the Jury, such judges, with such kings and cabinets, have
repeatedly brought the dearest rights of mankind into imminent peril.
Sad indeed is the condition of a nation where Thought is not free,
where the lips are sewed together, and the press is chained! Yet the
evil which has ruined Spain and made an Asia Minor of Papal Italy,
once threatened England. Nay, Gentlemen of the Jury, it required the
greatest efforts of her noblest sons to vindicate for you and me the
right to print, to speak, to think. Milton's "Speech for the Liberty
of unlicensed Printing" is one monument of the warfare which lasted
from Wicliffe to Thomas Carlyle. But other monuments are the fines and
imprisonment, the exile and the beheading of men and women! Words are
"sedition," "rebellion," "treason;" nay, even now at least in New
England, a true word is a "Misdemeanor," it is "obstructing an
officer." At how great cost has our modern liberty of speech been
purchased! Answer John Lilburne, answer William Prynn, and Selden, and
Eliot, and Hampden, and the other noble men who
----"in the public breach devoted stood,
And for their country's cause were prodigal of blood."
Answer Fox and Bunyan, and Penn and all the host of Baptists,
Puritans, Quakers, martyrs, and confessors--it is by your stripes that
we are healed! Healed! are we healed? Ask the court if it be not a
"misdemeanor" to say so!