accomplishes his violent measure by the forms of peaceful law, by getting the judicial class of men on the side of despotism. Then all the wickedness can be done in the name, with the forms, and by "due process" of law, by regular officers thereof-done solemnly with the assistance of slow and public deliberation.

Gentlemen of the Jury, this is a matter of such importance to the People of America just now, that I must beg you to bear with me while I explain this subtle operation. I will select examples from the history of England which are easy to understand, because her blood is kindred to our own, and the institutions of the two countries are related as parent and child. And besides, her past history affords alike warning and guidance in our present peril.

(1.) The first step in this process of political iniquity is, to appoint men for judges and other officers of the court, who know no law higher than the selfish will of the hand that feeds them, mere creatures of the rest.

I will select instances of this from the reign of the Stuart kings and one of their successors, from a period full of melancholy warning to America.

I will begin with James I. (1603-1625), the first King of New England. At his very accession he had high notions of his royal Prerogative, and maintained that all the privileges of the House of Commons were derived from his royal grant. "I am your King," said he, "I am placed to govern you, and I shall [must] answer for your errors." It was quite enough to answer for his own,- poor man. "Let me make the Judges," said he, "and I care not who makes the laws."

Accordingly for judicial officers he appointed such men as would execute his unlawful schemes for the destruction of public liberty. To such considerations was Francis Bacon mainly indebted for his elevation from one legal rank to another, until he reached the seat of the Lord Chancellor. A man whom Villers declared, "of excellent parts, but withal of a base and ungrateful temper, and an arrant knave, yet a fit instrument for the purposes of the government." He did not receive his appointment for that vast, hard-working genius which makes his name the ornament of many an age, but only for his sycophantic devotion to the royal will. Sir Edward Coke was promoted rapidly enough, whilst wholly subservient to the despotic court, but afterwards, though a miracle of legal knowledge, not equalled yet perhaps, he must not be appointed Lord Chancellor on account of "his occasional fits of independence." Chief Justice Ley was one of the right stamp, but it was thought "his subserviency might prove more valuable by retaining him to preside over the Court

of King's Bench." "For in making the highest judicial appointments the only question was, what would suit the arbitrary schemes of governing the country."1 Hobart had resisted some illegal monopolies of the all-powerful Buckingham, and he was "unfit for promotion."

James thought the Prerogative would be strengthened by the appointment of clergymen of the pational church, perhaps the only class of men not then getting fired with love of liberty, and made Williams, Bishop of Lincoln, Lord Keeper, a "man of rash and insolent, though servile temper, and of selfish, temporizing, and trimming political conduct," who at that time had never acted as "a judge except at the Waldegrave Petty Sessions in making an order of bastardy or allowing a rate for the Parish poor," and was "as ignorant of the questions coming before him as the door-keepers of his court." But he was subservient, and had pleased the King by preaching the courtly doctrine that "subjects hold their liberties and their property at the will of the Sovereign whom they are bound in every extremity passively to obey." 2 Men like Fleming and other creatures of the throne, sanctioning the King's abundant claim to absolute power, were sure of judicial distinction; while it was only the force of public opinion which gave the humblest place of honor to such able and well-studied lawyers as would respect the constitutional Rights of the People and the just construction of the laws, and at all hazards maintain their judicial independence. Ecclesiastics who taught that the King "is above the laws by his absolute power," and "may quash any law passed by Parliament," were sure of rapid preferment. Thus Bancroft was promoted; thus Abbot was pushed aside; and for his mean, tyrannical and subservient disposition Rev. William Laud was continually promoted in expectation of the services which, as Archbishop, he subsequently performed in the overthrow of the Liberty of the People. But time would fail me to read over the long dark list of men whose personal shame secured them "official glory."

In his address to the Judges in the Star-Chamber in 1616 James gave them this charge, "If there falls out a question which concerns any Prerogative or mysterie of State, deale not with it till you consult with the King or his Council, or both; for they are Transcendent Matters, and must not be slibberly carried with over rash wilfullnesse." "And this I commend unto your special care, as some of you of late have done very much, to blunt the edge and vaine popular humor of some lawyers at the Barre, that think they are not eloquent and boldspirited enough, except they meddle with the King's Prerogative." "That which concerns the mysterie of the King's Power is not lawful 1 2 Campbell, 372, 374.

2

2 Campbell, 368, 374; 3 Howell State Trials, 824.

to be disputed."1

Gentlemen, that was worthy of some judicial charges which you and I have heard.

Charles I. (1625-1659,) pursued the same course of tyranny by the same steps. Coventry could be implicitly relied on to do as commanded, and was made Lord Keeper in 1625. When the question of Ship-money was to be brought forward in 1636, Chief Justice Heath was thought not fit to be trusted with wielding the instrument of tyranny, and accordingly removed; "and Finch, well known to be ready to go all lengths, was appointed in his place." For he had steadfastly maintained that the King was absolute, and could dispense with law and parliament, a fit person to be a Chief Justice, or a Lord Chancellor, in a tyrant's court, ready to enact iniquity into law. His compliance with the King's desire to violate the first principle of Magna Charta, "endeared him to the Court, and secured him further preferment as soon as any opportunity should occur." So he was soon made Lord Chancellor and raised to the peerage. Littleton had once been on the popular side, but deserted and went over to the Court — he was sure of preferment; and as he became more and more ready to destroy the liberties of the People, he was made Chief Justice, and finally Lord Chancellor in 1641. Lane was a “steady friend of the prerogative," and so was made AttorneyGeneral to the Prince of Wales, and thence gradually elevated to the highest station.

Other Judicial appointments were continually made in the same spirit. Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the government questioned him to ascertain if he were "sound," and were shocked to hear him declare that the King had no right to levy taxes without consent of Parliament, or imprison his subjects without due process of law. He was "immediately dismissed from his office," (1626,) and Sir Nicolas Hyde appointed in his place. By such means the courts were filled with tools of the King or his favorites, and the pit digged for the liberties of the People, into which at last there fell the head of the King!

Charles II. and James II., (1655–1686,) did not mend the evil, but appointed for judges "such a pack as had never before sat in Westminster Hall." Shaftesbury and Guildford had the highest judicial honors. Lord Chancellor Finch, mentioned already, had been accused by the Commons of High Treason and other misdemeanors, but escaped to the continent, and returned after the Restoration. He was appointed one of the Judges to try the Regicides. Thus he "who had been accused of high treason twenty years before by a full

1 Speache in the Starre-Chamber, London, 1616.

parliament, and who by flying from their justice saved his life, was appointed to judge some of those who should have been his Judges.” 1 He declared in Parliament that Milton, for services rendered to the cause of liberty while Latin Secretary to Cromwell, "deserved hanging."2

In these reigns such men as Saunders, Wright, and Scroggs, were made Judges, men of the vilest character, with the meanest appetites, licentious, brutal, greedy of power and money, idiotic in the moral sense, appointed solely that they might serve as tools for the oppression of the People. Among these infamous men was George Jeffreys, of whom Lord Campbell says, "He has been so much abused that I began my critical examination of his history in the hope and belief that I should find that his misdeeds had been exaggerated, and that I might be able to rescue his memory from some portion of the obloquy under which it labors; but I am sorry to say that in my matured opinion his cruelty and his political profligacy have not been sufficiently exposed or reprobated; and that he was not redeemed from his vices by one single solid virtue." But in consequence of his having such a character, though not well-grounded in law, he was made a Judge, a Peer, and a Lord Chancellor! Wright, nearly as infamous, miraculously stupid and ignorant, "a detected swindler, knighted and clothed in ermine, took his place among the twelve judges of England." He also was made Chief Justice successively of the Common Pleas and the King's Bench! Lord Campbell, himself a judge, at the end of his history of the reign of Charles and James, complains of "the irksome task of relating the actions of so many men devoid of political principle and ready to suggest or to support any measures, however arbitrary or mischievous, for the purpose of procuring their own advancement." 5 It was the practice of the Stuarts "to dismiss judges without seeking any other pretence, who showed any disposition to thwart government in political prosecutions." 6 Nor was this dismissal confined to cases where the judge would obey the law in merely Political trials. In 1686 four of the judges denied that the king had power to dispense with the laws of the land and change the form of religion : the next morning they were all driven from their posts, and four others, more compliant, were appointed and the judicial "opinion was unanimous." Hereupon Roger Coke says well,-"the king. will make the judges in Westminster Hall to murder the common law, as well as the king and his brother desired to murder the parliament by itself; and to this end the king, when he would make any judges would make a bargain with them, that they should declare the king's'

1 Ludlow, quoted in 2 Campbell, 470. 2 Campbell Chief Justices, 86.

2 4 Parl. Hist. 162.

53 Campbell, 473.

33 Campbell, 394. 3 Hallam, 142.

power of dispensing with the penal laws and tests made against recusants, out of parliament." 1

Here, Gentlemen of the Jury, I must mention three obscure judges who received their appointments under Stuart kings. Before long I shall speak of their law and its application, and now only introduce them to you as a measure preliminary to a more intimate acquaintance hereafter.

1. The first is Sir William Jones, by far the least ignoble of the three. He was descended from one of the Barons who wrung the Great Charter from the hands of King John in 1618, and in 1628 dwelt in the same house which sheltered the more venerable head of his Welsh ancestor. In 1628 he was made judge by Charles I. He broke down the laws of the realm to enable the king to make forced loans on his subjects, and by his special mandate (Lettre de Cachet) to imprison whom he would, as long as it pleased him, and without showing any reason for the commitment or the detention! Yes, he supported the king in his attempt to shut up members of parliament for words spoken in debate in the house of commons itself; to levy duties on imports, and a tax of ship-money on the land. He was summoned before parliament for his offences against public justice, and finally deprived of office, though ungratefully, by the king himself.2

2. Thomas Twysden was counsel for George Coney in 1655, a London merchant who refused to pay an illegal tax levied on him by Cromwell - who followed in the tyrannical footsteps of the king he slew. Twysden was thrown into the Tower for defending his client

as Mr. Sloane, at Sandusky, has just been punished by the honorable court of the United States for a similar offence, but after a few days made a confession of his "error," defending the just laws of the land, promised to offend no more, and was set at liberty, ignominiously leaving his client to defend himself and be defeated. This Twysden was made judge by Charles II. The reporters recording his decisions put down " Twysden in furore," thinly veiling the judicial wrath in modest Latin. He was specially cruel against Quakers and other dissenters, treating George Fox, Margarett Fell, and John Bunyan with brutal violence.3

3. Sir John Kelyng is another obscure judge of those times. In the civil war he was a violent cavalier, and "however fit he might be to charge the Roundheads under Prince Rupert, he was very unfit to

18 St. Tr. 195, note.

2 Account of him in Preface to his Reports, (1675); 3 St. Tr. 162, 293, 844, 1181 2 Parl. Hist. 869; 1 Rushworth, 661, et al.; Whitlocke, 14, et al.

36 St. Tr. 634; 1 Campbell Justices, 442.