1680 the Lord Chief Justice of England declared the opinion of the
twelve judges "indeed all subscribe that to _print or publish any
news-books, or pamphlets of news whatsoever, is illegal; that it is a
manifest intent to the breach of the peace_, and they may be proceeded
against by law for an illegal thing." "And that is for a public notice
to all people, and especially printers and booksellers, that _they
ought to print no book or pamphlet of news whatsoever without
authority;" "they shall be punished if they do it without authority_,
though there is nothing reflecting on the government."[91] Judge
Scroggs was right--it was "resisting an officer," at least
"obstructing" him in his wickedness. In England, says Lord Campbell,
the name and family of Scroggs are both extinct. So much the worse for
you and me, Gentlemen. The Scroggses came over to America; they
settled in Massachusetts, they thrive famously in Boston; only the
name is changed.
[Footnote 91: 7 St. Tr. 1127.]
In 1731 Sir Philip Yorke, attorney-general, solemnly declared that an
editor is "_not to publish any thing reflecting on the character and
reputation and administration of his Majesty or his Ministers_;" "if
he breaks that law, or exceeds that liberty of the press he is to _be
punished for it_." Where did he get his law--in the third year of
Edward I., in A.D. 1275! But that statute of the Dark Ages was held
good law in 1731; and it seems to be thought good law in 1855! And the
attorney who affirmed the atrocious principle, soon became Chief
Justice, a "consummate judge," a Peer, Lord Hardwicke, and Lord
Chancellor![92] Lord Mansfield had not a much higher opinion of the
liberty of the press; indeed, in all libel cases, he assumed it was
exclusively the function of the judges to determine whether the words
published contained malicious or seditious matter, the jury were only
to find the fact of publication.[93] Thus the party in power with
their Loughboroughs, their Thurlows, their Jeffreys, their
Scroggs--shall I add also American names--are the exclusive judges as
to what shall be published relating to the party in power--their
Loughboroughs, their Thurlows, their Jeffreys and their Scroggs, or
their analogous American names! It was the free press of
England--Elizabeth invoked it--which drove back the "invincible
Armada;" this which stayed the tide of Papal despotism; this which
dyked the tyranny of Louis XIV. out from Holland. Aye, it was this
which the Stuarts, with their host of attendants, sought to break down
and annihilate for ever;[94] which Thurlow and Mansfield so formidably
attacked, and which now in America--but the American aspect of the
matter must not now be looked in the face.
[Footnote 92: 17 St. Tr. 674; 5 Campbell, 57; Hildreth's Despotism,
199.]
[Footnote 93: 20 St. Tr. 900. But see 28 St. Tr. 595, and 16 Parl.
Hist. 1211.]
[Footnote 94: For the frequency of trials for words spoken in Charles
II.'s reign of terror, see the extracts from Narcissus Luttrel's Brief
Historical Relation, 10 St. Tr. 125.]
* * * * *
But spite of all these impediments in the way of liberty, the voice of
humanity could not be forever silenced. Now and then a virtuous and
high-minded judge appeared in office--like Hale or Holt, Camden or
Erskine. Even in the worst times there were noble men who lifted up
their voices. Let me select two examples from men not famous, but
whose names, borne by other persons, are still familiar to this court.
In 1627 Sir Robert Phillips, member for Somersetshire, in his place in
Parliament, thus spoke against the advance of despotism:[95]--
[Footnote 95: 1 Rushworth, 502.]
"I read of a custom among the old Romans, that once every
year they had a solemn feast for their slaves; at which they
had liberty, without exception, to speak what they would,
thereby to ease their afflicted minds; which being finished,
they severally returned to their former servitude. This may,
with some resemblance and distinction, well set forth our
present state; where now, after the revolution of some time,
and grievous sufferance of many violent oppressions, we
have, as those slaves had, a day of liberty of speech; but
shall not, I trust, be hereafter slaves, for we are free:
yet what new illegal proceedings our estates and persons
have suffered under, my heart yearns to think, my tongue
falters to utter. They have been well represented by divers
worthy gentlemen before me; yet one grievance, and the main
one, as I conceive, hath not been touched, which is our
Religion: religion, Mr. Speaker, made vendible by
commission, and men, for pecuniary annual rates, dispensed
withal; Judgments of law against our liberty there have been
three; each latter stepping forwarder than the former, upon
the Rights of the Subject; aiming, in the end, to tread and
trample underfoot our law, and that even in the form of
law."
"The first was the Judgment of the Postnati, (the Scots,)
... The second was the Judgment upon Impositions, in the
Exchequer Court by the barons; which hath been the source
and fountain of many bitter waters of affliction unto our
merchants." "The third was that fatal late Judgment against
the Liberty of the Subject imprisoned by the king, argued
and pronounced but by one judge alone." "I can live,
although another who has no right be put to live with me;
nay, I can live although I pay excises and impositions more
than I do; but to have my liberty, which is the soul of my
life, taken from me by power; and to have my body pent up in
a gaol, without remedy by law, and to be so adjudged: O
improvident ancestors! O unwise forefathers! To be so
curious in providing for the quiet possession of our lands,
and the liberties of Parliament; and to neglect our persons
and bodies, and to let them lie in prison, and that _durante
bene placito_, remediless! If this be law, why do we talk of
liberties? Why do we trouble ourselves with a dispute about
law, franchises, property of goods, and the like? What may
any man call his own, if not the Liberty of his Person? I am
weary of treading these ways."[96]
[Footnote 96: 2 Parl. Hist. 232. See also 441, 471. He had been thrown
into the Tower by James in 1624. Cabbala (3d Ed.), 311.]
In 1641 Sir Philip Parker, Knight of the Shire for Suffolk, in his
place in Parliament, thus spoke:--
"The cries of the people have come up to me; the voice of
the whole nation tingles in my ears." "'Tis true, I confess,
we have tormented ourselves with daily troubles and
vexations, and have been very solicitous for the welfare of
the Commonwealth; but what have we performed, what have we
perfected? Mr. Speaker, excuse my zeal in this case; for my
mouth cannot imprison what my mind intends to let out;
neither can my tongue conceal what my heart desires to
promulge. Behold the Archbishop [Laud], that great
incendiary of this kingdom, lies now like a firebrand raked
up in the embers; but if ever he chance to blaze again I am
afraid that what heretofore he had but in a spark, he will
burn down to the ground in a full flame. Wherefore let us
begin, for the kingdom is pregnant with expectation on this
point. I confess there are many more delinquents, for the
judges and other knights walk _in querpo_; but they are only
thunderbolts forged in Canterbury's fire."[97]
[Footnote 97: Parl. Hist. 867.]
Six of the wicked judges were soon brought to trial.[98]
[Footnote 98: 1 Rushworth, 502.]
* * * * *
This same threefold experiment of despotism which was attempted in
England, was tried also in America by the same tyrannical hand. Here,
also, the encroaching power put creatures of its arbitrary will in
judicial offices; they then by perverting the laws, punished the
patriots, and next proceeded to destroy the best institutions of the
land itself. Here I shall take but a few examples, selected from the
colonial history of our own New England.
After capturing the great fortress of freedom at home, by taking away
the charter of London, Charles proceeded to destroy the freedom of the
colonies; the Charter of Massachusetts was wrested from us on a _quo
warranto_ in 1683,[99] and the colony lay at the feet of the monarch.
In privy council it had already been determined that our rights should
be swept into the hands of some greedy official from the court.[100]
In 1686 James II. sent Sir Edmund Andros to New England as a
"Commissioner" to destroy the liberty of the people. He came to Boston
in the "Kingfisher, a fifty gun ship," and brought two companies of
British soldiers, the first ever stationed in this town to dragoon the
people into submission to an unrighteous law. Edward Randolph, the
most determined enemy of the colony, greedily caressing the despotic
hands that fed him, was his chief coadjutor and assistant, his
secretary, in that wicked work. Andros was authorized to appoint his
own council, and with their consent enact laws, levy taxes, to
organize and command the militia. He was to enforce the hateful "Acts
of Trade." He appointed a council to suit the purpose of his royal
master, to whom no opposition was allowed. Dudley, the new Chief
Justice, told the people who appealed to Magna Charta, "they must not
think the privileges of Englishmen would follow them to the end of the
world." Episcopacy was introduced; no marriages were to "be allowed
lawful but such as were made by the minister of the Church of
England." Accordingly, all must come to Boston to be married, for
there was no Episcopal minister out of its limits. It was proposed
that the Puritan Churches should pay the Episcopal salary, and the
Congregational worship be prohibited. He threatened to punish any man
"who gave two pence" toward the support of a Non-conformist minister.
All fees to officers of the new government were made exorbitantly
great. Only one Probate office was allowed in the Province, that was
in Boston; and one of the creatures of despotic power was,
prophetically, put in it. Andros altered the old form of oaths, and
made the process of the courts to suit himself.
[Footnote 99: See the steps of the process in 1 Hutchinson, (Salem,
1795,) 297; 8 St. Tr. 1068, note.]
[Footnote 100: Barillon to Louis XIV. in Fox's Appendix, p. vii., _et
seq._ In 1685 Halifax, who had been friendly to the rights of the
colonies, was dismissed from his office; Sunderland, their enemy, had
a pension from Louis XIV. of L5,000 or L6,000 a year; p. cxxvii.,
cxxx. _et seq._, cxliii., cxlviii. Not the last instance of a high
functionary pensioned by a foreign hand!]
He sought to wrest the charters from the Colonies; that of Rhode
Island fell into his hands; Connecticut escaped by a "miracle:"
"The Charter-Oak--it was the tree
That saved our sacred Liberty."
The Charter government of Plymouth was suspended. Massachusetts was
put under arbitrary despotism. Towns were forbidden to meet, except
for the choice of officers; there must be no deliberation; "discussion
must be suppressed." He was to levy all the taxes; he assessed a
penny in the pound in all the towns. Rev. John Wise, one of the
ministers of Ipswich, advised the people to resist the tax.
"Democracy," said he, "is Christ's government in Church and State; we
have a good God and a good king; we shall do well to stand to our
privileges." One of the Council said, "_You have no privileges left
you, but not to be sold as slaves._" Even that was not likely to last
long. The town of Ipswich refused to pay the tax, because invalid; the
governor having no authority to tax the people: "they will petition
the King for liberty of an assembly before they make any rates." The
minister and five others were arrested; they had "obstructed an
officer." The Rev. Mr. Wise was guiltiest of all; he did it with a
word, an idea. They were brought to Boston, and thrown into jail, "for
contempt and high misdemeanors." They claimed the _habeas corpus_;
Chief Justice Dudley refused it, on the ground that it did not extend
to America! They were tried before a packed jury, and such a court as
James II. was delighted to honor. The patriots plead the laws of
England and Magna Charta. It was all in vain. "I am glad," said the
judge to his packed jury, "there be so many worthy gentlemen of the
jury, so capable to do the king service; and we expect a good verdict
from you, seeing the matter hath been so sufficiently proved against
the _criminals_." The jury of course found them guilty. They were
fined from L15 to L50 a piece. The whole cost to the six was over
L400. "It is not for his majesty's interest that you should thrive,"
said one of those petty tyrants,--a tide-water of despotism.[101]
[Footnote 101: 1 Hutch. 316; 2 Hildreth, Hist. 108; 2 Bancroft, 425;
Washburn, Judicial Hist. of Mass. 105; Drake's Boston, ch. L.]
Andros denied the colonial title to lands, claiming that as the
charter was declared void, all the lands held under its authority
escheated to the crown,--"The calf died in the cow's belly." A deed of
purchase from the Indians was "worth no more than the scratch of a
bear's paw." "The men of Massachusetts did much quote Lord Coke" for
their titles: but Rev. John Higginson, minister of the first church in
Salem, the son of the first minister ever ordained in New
England,--and ancestor of this noble-hearted man [Rev. T.W. Higginson]
who is now also indicted for a "misdemeanor,"--found other laws for
their claim, and insisted on the citizens' just and natural right to
the lands they had reclaimed from the wilderness.[102] Andros said,
"You are either subjects, or else you are rebels;" and in either case,
their lands would be forfeit.
[Footnote 102: 1 Felt's Salem, 24; 2 Ib. 542; Felt's Ipswich, 123, _et
seq._; Gage's Rowley, 157, _et seq._; Sullivan's Land Titles, 54.]
Andros hated freedom of speech and of thought. He was to allow no
unlicensed printing. Randolph was appointed censor of the press, and
ordered the printer to publish nothing without his approbation, nor
"any almanac whatever." There must be but one town meeting in a year,
and no "deliberation" at that; no "agitation," no discussion of
grievances. There must be no preaching on the acts of the government.
Rev. Dr. Increase Mather, one of the ablest men in the Colonies, was
the special object of his hate. Randolph advised the authorities to
forbid any non-conformist minister to land in New England without the
special consent of the governor, and that he should restrain such as
he saw fit to silence. The advice was not lost on such willing ears.
John Gold, of Topsfield, was tried for "treasonable words," and fined
fifty pounds--a great deal more at Topsfield in 1687, than "three
hundred dollars" is now in Boston. Rev. Increase Mather had opposed
the surrender of the Charter of Massachusetts, and published his
reasons; but with such prudence, for he was careful how he "evinced an
express liking" for justice, that it was difficult to take hold of
him. So the friends of government forged a letter with his name, to a
person in Amsterdam. Randolph showed the letter to persons whom he
wished to prejudice against the alleged writer. When Mr. Mather
learned the facts, he wrote a letter to a friend, clearing himself,
and charging the forgery on Randolph or his brother. Randolph brought
his action for a libel, claiming L500 damages. But it came to
nothing--then. Now times are changed!
Col. Pynchon, of Springfield, one of the officers in this new state of
things, was empowered to bind over all persons suspected of riots,
"outrageous or abusive _reflecting words and speeches against the
government_." "The spirit of justice was banished from the courts that
bore the name."[103]
[Footnote 103: Hutch. 327; Washburn, ibid.]
But notwithstanding the attempt to stifle speech, a great tall
minister at Rowley, called Andros "a wicked man!" For that offence he
was seized and put in prison! He, also, like Higginson, is represented
in this court by one of his own name; and the same inextinguishable
religious fire which burned in the bosom of Robert in Old England, and
from Samuel in New England flashed into the commissioned face of
Andros, now lightens at this bench from the eyes of WENDELL PHILLIPS,
who confers new glory on his much-honored ancestor.
* * * * *
Gentlemen of the Jury, you know how this wickedness was brought to an
end. If the courts would not decree Justice, there was a rougher way
of reaching it, and having it done. Civil war, revolution by violence,
came in place of the simple forms of equity, which the judges had set
at nought. William of Orange, a most valiant son-in-law, drove the
foul tyrant of Old England from that Island, where the Stuarts have
ever since been only "Pretenders;" and on the 19th of April, 1689, the
people of Massachusetts had the tyrant of New England put solemnly in
jail! We were rid of that functionary for ever, and all such
"commissioners" have been held odious in New England ever since the
days of Andros. Eighty-six years later came another 19th of April,
also famous. Well said Secretary Randolph, "Andros has to do with a
perverse people,"--they would not bow to such tyranny in 1689. But he
afterwards became a quite acceptable governor in Virginia,--where, I
doubt not, he has descendants in African bondage at this day.
Catholic James II. sought to establish arbitrary power in America, as
in England, by his prerogative--the Omnipotence of the King; he
failed; the high-handed despotism of the Stuarts went to the ground.
The next attempt at the same thing was by the legislature--the
Omnipotence of Parliament--for a several-headed despotism took the
place of the old, and ruled at home with milder sway. It tried its
hand in America; there were no more requisitions from a king hostile
to the Colonies, but acts of Parliament took their place. After the
French power in North America had given way, the British government
sought to tame down and break in the sturdy son, who had grown up in
the woods so big and rough, as obstinate as his father. Here are three
measures of subjugation, all flowing from the same fountain of
Principle--vicarious government by a feudal superior.
1. All the chief colonial officers were to be appointed by the king,
to hold office during his pleasure, to receive their pay from him.
Such was the tenure of the executive officers who had a veto on all
colonial legislation, and of the judicial officers. Thus the power of
making and administering the laws fell from the people distributed
everywhere, into the hands of the distant government centralized in
the King.
2. A standing army of British soldiers must be kept in the Colonies to
overawe the people, and enforce the laws thus made and administered.
3. A revenue was to be raised from the Colonies themselves--from which
the King would pay his officers and provide for his army that enforced
his laws. The eagle is to feather the arrow which shoots him in mid
heaven.
Thus law was a threefold cord wherewith to bind the strong Puritan.
But his eyes were not put out--not then. Blindness came at a later
day--when he had laid his head in the lap of a not attractive
Delilah. With such judges and governors, backed by a standing army of
hirelings--how soon would her liberty go down, and the Anglo-American
States resemble Spanish America!
In 1760 Francis Bernard was made governor of Massachusetts, and thus
officially put at the head of the Judiciary, a man wholly devoted to
the Crown, expecting to be made a baronet! He did not wish an annual
election of councillors, but wanted the sovereign power to enforce its
decrees by violent measures. Thus Thomas Hutchinson was made Chief
Justice in 1760, and afterwards Lieutenant-Governor,--continually
hostile to the constitution of his native land. Thus Andrew
Oliver--"Governor Oliver," "hungry for office and power," was
appointed Secretary, Commissioner of Stamps and Lieutenant-Governor;
and Peter Oliver--"Judge Oliver"--though not bred a lawyer, was made
Chief Justice, the man who refused to receive his salary from the
treasury of Massachusetts, preferring the money of the crown which
owned him. In the revolutionary times of the _five Judges of
Massachusetts four were Tories_!
Accordingly, when the Stamp Act was passed--22d March, 1765--there
were Judicial officers in the Colonies ready to declare it
"constitutional;" executive magistrates ready to carry out any
measures intrusted to them. "I will cram the stamps down their throat
with the end of my sword," said an officer at New York. Governor
Bernard wanted soldiers sent to Boston to enforce submission; so did
Hutchinson and "Governor Oliver." The Governor of New York thought,
"if _Judges be sent from England_, with an able attorney-general and
solicitor-general to _make examples of some very few_, the Colony will
remain quiet."[104]
[Footnote 104: 5 Bancroft, 358.]
In 1768 John Hancock was arrested at Boston--for a "misdemeanor;" I
suppose, "obstructing an officer," or some such offence.[105] The
government long sought to procure indictments against James Otis--who
was so busy in fencing out despotism--Samuel Adams, and several other
leading friends of the colony. But I suppose the judge did not succeed
in getting his brother-in-law put on the grand-jury, and so the scheme
fell through. No indictment for that "misdemeanor" then. Boston had
the right men to do any thing for the crown, but they did not contrive
to get upon the grand-jury.
[Footnote 105: 6 Bancroft, 213.]
The King, it was George III., in his parliament, spoke of the Patriots
of Boston, as "those turbulent and seditious persons." In the House of
Commons, Stanley called Boston an "insolent town;" its inhabitants
"must be treated as aliens;" its "charter and laws must be so changed
as to give the King the appointment of the Council, and to the
_sheriffs the sole power of returning jurors_;" then the Stamp Act
could be carried out, and a revenue raised without the consent of the
people. The plan was admirably laid; an excellent counsel! Suppose, as
a pure conjecture, an hypothesis of illustration--that there were in
Boston a fugitive slave bill court, eager to kidnap men and so gain
further advancement from the slave power, which alone distributes the
federal offices; suppose the court should appoint its creatures,
relatives, nay, its uterine brother--its brother in birth--as fugitive
slave bill commissioners to hunt men; and then should get its
matrimonial brother--its brother-in-law--on the grand-jury to indict
all who resisted the fugitive slave bill! You see, gentlemen, what an
admirable opportunity there would be to accomplish most manifold and
atrocious wickedness. This supposed case exactly describes what was
contemplated by the British authorities in the last century! Only,
Gentlemen, it was so unlucky as not to succeed; nay, Gentlemen, as to
fail--then! Such accidents will happen in the best of histories!