charge a jury in Westminster Hall." In 1660 he took part in the trial of the Regicides and led in the prosecution of Colonel Hacker, who in 1649 had charge of the execution of Charles I. In 1662 he took part in the prosecution of Sir Henry Vane, and by his cruel subtlety in constructing law, that former governor of Massachusetts, one of the most illustrious minds of England, innocent of every crime, was convicted of high treason and put to death.1 For this service, in 1663 Kelyng was made a judge; and then, by loyal zeal and judicial subserviency, he made up "for his want of learning and sound sense." But he was so incompetent that even the court of Charles II. hesitated to make him more than a puny judge. But he had been a "valiant cavalier," and had done good service already in making way with such as the king hated, and so after the death of Sir Nicolas Hyde, he was made Lord Chief Justice in his place. "In this office," says Judge Campbell, he "exceeded public expectation by the violent, fantastical, and ludicrous manner in which he conducted himself."2 But I will not now anticipate what I have to say of him in a subsequent part of this defence. Gentlemen of the Jury, we shall meet these three together again before long, and I shall also speak of them "singly or in pairs." In the mean time I will mention one similar appointment in the reign of George the III.—the last king of New England. In 1770 Sergeant Glynn, in Parliament, moved for an inquiry into the administration of criminal justice. Edmund Thurlow, a rough venal man, then recently appointed solicitor-general, proposed that a severe censure should be passed on him for the motion. Thurlow wanted the trial by jury abolished in all cases of libel, so that the liberty of the people should be in the exclusive care of government attorneys and judges appointed by the crown. Hear him speak on the 6th of December, 1770. "In my opinion no man should be allowed with impunity to make a wanton attack upon such venerable characters as the judges of the land. We award costs and damages to the aggrieved party in the most trifling actions. By what analogy, then, can we refuse the same justice in the most important cases, to the most important personages? If we allow every pitiful patriot thus to insult us with ridiculous accusations, without making him pay forfeit for his temerity, we shall be eternally pestered with the humming and buzzing of these stingless wasps. Though they cannot wound or poison, they will tease and vex. They will divert our attention from the important affairs of State to their own mean antipathies, and passions, and prejudices. Did they not count upon the spirit of the times and imagine that the same latitude which is taken by the libellers is here allowable, they would not have dared to offer so gross an outrage. I hope we shall now handle them so roughly as to make this the last of such 16 St. Tr. 161. 1 Campbell Justices, 401. Virtue audacious attempts. They are already ridiculous and contemptible. To crown their disgrace, let us inflict some exemplary punishment. Else none of us is safe. and honor, you see from this instance, are no safeguard from their attacks.” “The nature, the direct effect, and the remote consequences of a State libel, are so complicated and involved with various considerations of great pith and moment, that few juries can be adequate judges. So many circumstances are at once to be kept in view, so many ponderous interests are to be weighed, so many comparisons to be made, and so many judgments formed, that the mind of an ordinary man is distracted and confounded, and rendered incapable of coming to any regular conclusion. None but a judge, a man that has from his infancy been accustomed to decide intricate cases, is equal to such a difficult task. If we even suppose the jury sufficiently enlightened to unravel those knotty points, yet there remains an insuperable objection. In State libels, their passions are frequently so much engaged, that they may be justly considered as parties concerned against the crown." "In order, therefore, to preserve the balance of our constitution, let us leave to the judges, as the most indifferent persons, the right of determining the malice or innocence of the intention." "It is not that I think the intention a matter of fact; no, in the sense put upon it by the judges, it is a matter of law." "Much dust has been raised about civil and criminal actions. But to what purpose? Is not reparation to be made to the public for any injury which it may have sustained, as much as to an individual? Is the welfare of the nation in general, of less consequence than that of a single person? Where then is the propriety of making such a bustle about the malice or innocence of the intention? The injury done is the only proper measure of the punishment to be inflicted, as well as of the damage to be assessed. Since you cannot plead the intention as a mitigation in the latter case, neither can you in the former."1 "In What followed? On the 23d of July, 1771, he was made AttorneyGeneral. His subsequent history did not disappoint the prophecy uttered above by his former conduct and his notorious character. truth his success was certain, with the respectable share he possessed of real talents and of valuable requirements-strongly marked features, piercing eyes, bushy eyebrows, and a sonorous voice, all worked to the best effect by an immeasurable share of self-confidence he could not fail." 2 He hated America with the intense malignity of a low but strong and despotic nature, and “took a most zealous part and uttered very violent language against the colonists. He scorned the very notion of concession or conciliation; he considered sedition' and 'treason,' (like tobacco and potatoes,) the peculiar plants of the American soil. The natives of these regions he thought were born to be taxed." He favored the Stamp Act, the Coercion Bill, — quartering soldiers upon us, sending Americans beyond seas for trial,—the Boston Port Bill, and all the measures against the colonies. "To say that we have a right to tax America and never exercise that right, is ridiculous, and a man must abuse his 116 Parl. Hist. 1291, 1292, 1293. 25 Campbell, 398. 8 * 5 Campbell, 410. understanding very much not to allow of that right;" "the right of taxing was never in the least given up to the Americans."1 ́ On another occasion he said, that "as attorney-general he had a right to set aside every charter in America."2 What followed? Notwithstanding his youthful profligacy, the open profanity of his public and private speech, and his living in public and notorious contempt of matrimony, he was made Lord Chancellor and elevated to the peerage in 1778! Him also we shall meet again. Gentlemen of the Jury, I might as well try to bale all the salt water out of the sea as to mention every glaring and notorious instance where an oppressive government has appointed some discarder of all Higher Law for its servant in crushing the People. Come therefore to the next point. (II.) The next step is by means of such Judges to punish and destroy or silence men who oppose the wickedness of the party in power, and the encroachments of despotism. Let me describe the general mode of procedure, and then illustrate it by special examples. 1. In the Privy Council, or elsewhere, it is resolved to punish the obnoxious men,- and the business is intrusted to the law-officers of the crown, appointed for such functions. 2. They consult and agree to pervert and twist the law-statute or common for that purpose. By this means they gratify their master, and prepare future advancement for themselves. 3. The precedent thus established becomes the basis for new operations in the future, and may be twisted and perverted to serve other cases as they occur. Now, Gentlemen, look at some examples taken from British history, in times of the same Kings mentioned before. 1. In 1610 two Puritans for refusing the ex officio oath, were clapped in Jail by the commissioners. They were brought on habeas corpus before a court, and Mr. Fuller, their counsel, a learned lawyer, insisted that they were imprisoned without due process of law. For this "contempt of court" he was thrown into jail by Archbishop Bancroft, whence he was rescued only by death. 3 2. In 1613 there were many murmurs among the People of England at the tyranny of James. Fine and imprisonment did not quell the disturbance; so a more dreadful example was thought needful. The officials of Government broke into the study of Rev. Edmund Peacham, a Protestant minister, sixty or seventy years old. In an 117 Parl. Hist. 1313. 218 St. Tr. 999. Peirce's Vindication, (1717,) 174. uncovered cask they found a manuscript sermon, never preached, nor designed for the pulpit or the press, never shown to any one. It contained some passages which might excite men to resist tyranny. He was arrested, and thrown into Jail, all his papers seized. The Government resolved to prosecute him for high treason. Francis Bacon, the powerful and corrupt Attorney-General, managed the prosecution. Before trial was ventured upon, he procured an extrajudicial opinion of the Judges appointed for such services,— irregularly given, out of court, that they would declare such an act high treason. But a manuscript sermon, neither preached nor designed for the public, was hardly evidence enough of treason even for such Judges - so purchased, for such an Attorney-so greedy of preferment, with such a Cabinet and such a King. For all those, like the Pharisees of old, "feared the People." So their victim was tortured on the rack, and twelve leading questions prepared by the Government officials, were put to him there. I quote Secretary Winwood's record-still extant in his own handwriting-"He was this day examined before torture, in torture, between torture, and after torture; notwithstanding nothing could be drawn from him, he still persisting in his obstinate and insensible denials and former answers." Bacon was present at the torture, which took place in the Tower, Jan. 19, 1614, · O. S. (30th Jan. 1615, N. S.). In August he was tried for high treason—"compassing and imagining the King's death"- before a packed jury; against law, and without legal evidence. He was of course found guilty under the ruling of the Court! But public opinion, even then making tyrants "tremble in their capitals," was so indignant at the outrage that the execution was not ventured on, and he was left to languish in Jail, till on the 27th of March, 1616, a King more merciful took the old minister where the wicked cease from troubling.1 In this case, Gentlemen of the Jury, you will notice three violations of the law. (1.) The opinion of the Judges before the trial was extrajudicial and illegal. (2.) The application of torture was contrary to law. (3.) The statute of Treason was wrested to apply to this case and a crime was constructed by the servants of the court. It is curious to read the opinion of James himself. "The British Solomon" thus wrote: "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 proba 12 St. Tr. 869; 16 Montagu's Bacon, clxvi.; 2 Campbell, 291. bility lies but if Judges will needs trust rather the bare negative of an infamous delinquent then all the probabilities, or rather infallible consequences upon the other part, caring more for the safety of such a monster than the preservation of a crown in all ages following, whereupon depend the lives of many millions, happy then are all desperate and seditious knaves, but the fortune of this crown is more than miserable. Which God forefend."1 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!2 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," which the stout Puritan refused to do, and was kept in 3 2 St. Tr. 879. 23 St. Tr. 769; 2 Campbell, 400. 3 St. Tr. 373; Frankyn, 361; 2 Hallam (Paris, 1841), 6 ac etiam 13; 2 Mrs. Macaulay, 16, 45, 65. 1 |