Chapter 3

"So the only thing the Judges can doubt of is of the delinquent's intention, on his bare denial to clear him [himself], since nature teaches every man to defend his life as he may; and whether in case there was a doubt herein, the Judges should not rather incline to that side [namely, the side of the Government,] wherein all probability lies: but if Judges will needs trust rather the bare negative of aninfamous delinquent—then all the probabilities, or rather infallible consequences upon the other part, caring more for the safety ofsuch a monsterthan the preservation of a crown in all ages following, whereupon depend the lives of many millions, happy then are alldesperate and seditious knaves, but the fortune of this crown is more than miserable. Which God forefend."[26]

3. In 1633, Laud, a tyrannical, ambitious man, and a servile creature of the King, mentioned before, was made Archbishop of Canterbury, continuing Bishop of London at the same time. Charles I. was strongly inclined to Romanism, Laud also leaned that way, aiming to come as near as possible to the Papal and not be shut out of the English Church. He made some new regulations in regard to the Communion Table and the Lord's Supper. John Williams, before mentioned, Dean of Westminster and Bishop of Lincoln, who had been Lord Keeper under King James, wrote a book against those innovations; besides, in his episcopal court he had once spoken of the Puritans as "good subjects," and of his knowing "that the King did not wish them to be harshly dealt with." In 1637 Laud directed that he should be prosecuted in the Star-Chamber for "publishing false news and tales to the scandal of his Majesty's government;" and "for revealing counsels of State contrary to his oath of a Privy Counsellor." He was sentenced to pay a fine of £10,000,—equal to $50,000, or thrice the sum in these times; to be suspended from all offices, and kept a close prisoner in the Tower during the King's pleasure—whence the Revolution set him at liberty. Besides he wrote private letters to Mr. Osbalderston, and called Laud "the little great man," for this he, in 1639, was fined £5,000 to the King, and £3,000 to the Archbishop. Osbalderston in his letters had spoken of the "great Leviathan" and the "little Urchin," and was fined £5,000, to the King, and the same to the Archbishop, and sentenced also to stand in the pillory with his ears nailed to it![27]

4. In 1629 Richard Chambers, a merchant of London, complained to the Privy Council of some illegal and unjust treatment, and declared "that the merchants in no part of the world are so screwed and wrung as in England; that in Turkey they have more encouragement." Laud, who hated freedom of speech and liberal comments on the government as much as "eminent citizens" nowadays, is said to have told the king, "If your majesty had many such Chambers, you would soon have no Chamber left to rest in." The merchant was tried before the "commissioners" at the Star-Chamber, and fined £2,000, and condemned to make a "submission for his great offence,"[28]which the stout Puritan refused to do, and was kept inprison till the Court of King's Bench, faithful to the law, on Habeas Corpus, admitted him to bail: for which they were reprimanded. Laud and all the ecclesiastical members of the "commission" wished his fine £3,000.

5. In his place in Parliament in 1629, Sir John Eliot, one of the noblest men in England's noblest age, declared that "the Council and Judges had all conspired to trample underfoot the liberties of the subject." Gentlemen, the fact was as notorious as the advance of the Slave Power now is in America. But a few days after the king (Charles I.) had dismissed his refractory Parliament, Eliot, with Hollis, Long, Selden, Strode, and Valentine, most eminent members of the commons, and zealous for liberty and law, was seized by the king's command and thrown into prison. The Habeas Corpus was demanded—it was all in vain, for Laud and Strafford were at the head of affairs, and the priests and pliant Judges in Westminster Hall—Jones was one of them—clove down the law of the land just as their subcatenated successors did in Boston in 1851. The court decreed that they should be imprisoned during the king's pleasure, and not released until making submission and giving security for good behavior. Eliot was fined £2,000, Hollis and Valentine in smaller sums. Eliot—the brave man—refused submission, and died in the Tower. Thus was the attack made on all freedom of speech in Parliament![29]

6. In 1630, the very year of the first settlement of Boston, on the 4th of June, Rev. Dr. Alexander Leighton was brought before the Court of High Commission, in the Star-Chamber, to be tried for a seditious libel. He had published "An Appeal to the Parliament, or a Plea against Prelacy," a work still well known, remonstrating against certain notorious grievances in church and State, "to the end the Parliament might take them into consideration and give such redress as might be for the honor of the king, the quiet of the people, and the peace of the church," the court of commissions accounted it "a most odious and heinous offence, deserving the most serious punishment the court could inflict, for framing a book so full of such pestilent, devilish, and dangerous assertions." The two Chief Justices declared if the case had been brought to their courts, they would have proceeded against him for Treason, and it was only "his majesty's exceeding great mercy and goodness" which selected the milder tribunal. His sentence was a fine of £10,000, to be set in the pillory, whipped, have one ear cut off; one side of his nose slit, one cheek branded with S.S., Sower of Sedition, and then at some convenient time be whipped again, branded, and mutilated on the otherside, and confined in the Fleet during life! Before the punishment could be inflicted he escaped out of prison, but was recaptured and the odious sentence fully executed. Those who "obstructed" the officer in the execution of that "process" were fined £500 a piece.[30]Gentlemen of the Jury, which do you think would most have astonished the Founders of Massachusetts, then drawing near to Boston, that trial on the 4th of June, 1630, or this trial, two hundred and twenty-five years later? At the court of Charles it was a great honor to mutilate the body of a Puritan minister.

But not only did such judges thus punish the most noble men who wrote on political matters, there was no freedom of speech allowed—so logical is despotism!

7. William Prynn, a zealous Puritan and a very learned lawyer, wrote a folio against theatres called "a Scourge for Stage-Players," dull, learned, unreadable and uncommon thick. He was brought to the Star-Chamber in 1632-3, and Chief Justice Richardson—who had even then "but an indifferent reputation for honesty and veracity"—gave this sentence: "Mr. Prynn, I do declare you to be a Schism-Maker in the Church, a Sedition-Sower in the Commonwealth, a wolf in sheep's clothing; in a word 'omnium malorum nequissimus'—[the wickedest of all scoundrels]. I shall fine him £10,000, which is more than he is worth, yet less than he deserveth; I will not set him at liberty, no more than a plagued man or a mad dog, who though he cannot bite, yet will he foam; he is so far from being a sociable soul that he is not a rational soul; he is fit to live in dens with such beasts of prey as wolves and tygers like himself; therefore I do condemn him to perpetual Imprisonment, as those monsters that are no longer fit to live among men nor to see light." "I would have him branded in the forehead, slit in the nose, and his ears cropped too." The sentence was executed the 7th and 10th of May, 1633.[31]But nothing intimidated, the sturdy man committed other offences of like nature, "obstructing" other "officers," and was punished again, and banished. But on the summoning of Parliament returned to England, and became powerful in that Revolution which crushed the tyrants of the time.

8. In 1685, James II. was in reality a Catholic. He wished to restore Romanism to England and abolish the work of the Reformation, the better to establish the despotism which all of his family had sought to plant. He was determined to punish such as spoke against the Papal Church, though no law prohibited such speaking. JudgeJeffreys, a member of the cabinet and favorite of the king, was at that time chief justice—abundantly fit for the work demanded of him. The pious and venerable Richard Baxter was selected for the victim. Let Mr. Macaulay tell the story.

"In a Commentary on the New Testament, he had complained, with some bitterness, of the persecution which the Dissenters suffered. That men, who, for not using the Prayerbook, had been driven from their homes, stripped of their property, and locked up in dungeons, should dare to utter a murmur, was then thought a high crime against the State and Church. Roger Lestrange, the champion of the government, and the oracle of the clergy, sounded the note of war in the Observator. An information was filed. Baxter begged that he might be allowed some time to prepare for his defence. It was on the day on which Oates was pilloried in Palace Yard that the illustrious chief of the Puritans, oppressed by age and infirmities, came to Westminster Hall to make this request. Jeffreys burst into a storm of rage. 'Not a minute,' he cried, 'to save his life. I can deal with saints as well as with sinners. There stands Oates on one side of the pillory; and if Baxter stood on the other, the two greatest rogues in the kingdom would stand together.'""When the trial came on at Guildhall, a crowd of those who loved and honored Baxter, filled the court. At his side stood Doctor William Bates, one of the most eminent Non-conformist divines. Two Whig barristers of great note, Pollexfen and Wallop, appeared for the defendant.""Pollexfen had scarce begun his address to the jury, when 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]

"When the trial came on at Guildhall, a crowd of those who loved and honored Baxter, filled the court. At his side stood Doctor William Bates, one of the most eminent Non-conformist divines. Two Whig barristers of great note, Pollexfen and Wallop, appeared for the defendant."

"Pollexfen had scarce begun his address to the jury, when 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]

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.

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.

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."

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 thepolitical 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]

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, thatno man cantake upon him towrite 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, thatno private man can take upon him to write concerning the government at all; forwhat 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; itis 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; andshall, or oughtanybodyto come andimpeach 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 parliamentde factositting."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 impliesvi 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]

"Then I lay down this for my next position, thatno private man can take upon him to write concerning the government at all; forwhat 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; itis 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; andshall, or oughtanybodyto come andimpeach 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 parliamentde factositting.

"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 impliesvi 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]

Listen, Gentlemen of the Jury, to the words of Attorney-General Powis:—

"And I cannot omit here to take notice, thatthere 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]

Hearken to the law of Solicitor-General Williams:—

"If any person have slandered the government in writing, you arenot to examine the truth of that factin such writing, but the slander which it imports to the king or government; andbe 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 wrongisnot 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 againsttheir 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]

"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 againsttheir 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]

Here, however, there was aJury—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]

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 theMorning 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 £100, 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 100l.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 anyswearingof 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 informationex officioagainst 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 thefine, 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 toimprisonment, 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 beno 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 arean 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 thejudgment 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 thejudgment of the pillory."[41]

"With regard toimprisonment, 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 beno 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 arean 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 thejudgment 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 thejudgment of the pillory."[41]

But Mansfield thought otherwise, and punished him with a fine of £200 and imprisonment for twelve months.[42]

"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]

Thurlow was a man of low intellect, of a fierce countenance, a saucy, 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, thatwe 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 £30,000 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 yourhumane phrensy, and to show some humanity to the whites as well as to the negroes."[44]

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,

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 levyingwar is not only meant when a body is gathered together as an army, but if acompany 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, andevery 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]

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]

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 hislikingandapprobationto 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 contendedthat 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]

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.

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 torturewas 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.

It has been well said:—

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