APPENDIX. (continued 2)

I cannot forbear the expression of the opinion that the rule laid down in this case by the majority is fraught with great danger to the most cherished rights of the citizens of the State. While in contests involving the right of property merely, I presume we may still treat these judgments of the United States courts, in cases not within their jurisdiction, as nullities; yet, if a single judge thinks proper to determine that one of our citizens has been guilty of contempt, even if such determination had its foundation in a case upon which the judge had no power to pronounce judgment, and was most manifestly in direct violation of a solemn act of the very legislative authority that created the court over which the judge presides, it seems that such determination is to have all the force and effect of a judgment pronounced by a court of competent jurisdiction, acting within the admitted sphere of its constitutional powers.

Nay, more. We confess ourselves powerless to protect our citizens from the aggressions of a court, as foreign from our state government in matters not committed to its jurisdiction as the Court of Queen’s Bench in England, and this upon the authority of decisions pronounced in cases not at all analogous to the one now under consideration. I believe this to be the first recorded case where the supreme court of a state has refused the prayer of a citizen for the writ of habeas corpus to inquire into the legality of an imprisonment by a judge of a federal court for contempt, in refusing obedience to a writ void for want of jurisdiction.

I will conclude by recapitulating the grounds upon which I think this writ should be awarded.

1. At common law, and by our statute of 1785, the writ of habeas corpus ad sufficiendum, is a writ of right, demandable whenever a petition in due form asserts what, if true, would entitle the party to relief.

2. That an allegation in a petition that the petitioner is restrained of his liberty by an order of a judge or court without jurisdiction, shows such probable cause as to leave it no longer discretionary with the court or judge to whom application is made whether the writ shall or shall not issue.

3. That where a person is imprisoned by an order of a judge of the district court of the United States for refusing to answer a writ of habeas corpus, he is entitled to be discharged from such imprisonment if the judge of the district court had no authority to issue the writ.

4. That the power to issue writs of habeas corpus by the judges of the federal courts is a mere auxiliary power, and that no such writ can be issued by such judges where the cause of complaint to be remedied by it is beyond their jurisdiction.

5. That the courts of the federal government are courts of limited jurisdiction, derived from the constitution of the United States and the acts of Congress under the constitution, and that when the jurisdiction is not given by the constitution or by Congress in pursuance of the constitution, it does not exist.

6. That when it does not appear by the record that the court had jurisdiction in a proceeding under our habeas corpus act to relieve from an illegal imprisonment, want of jurisdiction may be established by parole.

7. That where the inquiry as to the jurisdiction of a court arises upon a rule for a habeas corpus, all the facts set forth in the petition tending to show want of jurisdiction are to be considered as true, unless they contradict the record.

8. That where the owner of a slave voluntarily brings his slave from a slave to a free State, without any intention of remaining therein, the right of the slave to his freedom depends upon the law of the State into which he is thus brought.

9. That if a slave so brought into a free State escapes from the custody of his master while in said State, the right of the master to reclaim him is not a question arising under the constitution of the United States or the laws thereof; a judge of the United States cannot issue a writ of habeas corpus directed to one who it is alleged withholds the possession of the slave from the master, commanding him to produce the body of the slave before said judge.

10. That the district court of the United States for the eastern district of Pennsylvania has no jurisdiction because a controversy is between citizens of different States, and that a proceeding by habeas corpus is, in no legal sense, a controversy between private parties.

11. That the power of the several courts of the United States to inflict summary punishment for contempt of court in disobeying a writ of the court, is expressly confined to cases of disobedience to “lawful” writs.

12. That where it appears from the record that the conviction was for disobeying a writ of habeas corpus, which writ the court have no jurisdiction to issue, the conviction is coram non judice, and void.

For these reasons I do most respectfully, but most earnestly, dissent from the judgment of the majority of my brethren refusing the writ applied for.

No. V.

How Passmore Williamson was finally discharged.

Previously to the application on Williamson’s behalf to the supreme court of Pennsylvania, Jane Johnson, the woman who, and her two sons, were claimed as slaves by Wheeler, had appeared before Judge Culver of New York, and had made an affidavit that the plan of claiming her freedom and that of her children had originated entirely with herself; that it was through her means that Williamson was made acquainted with her desire in that behalf; and that all he had done, after coming on board the boat, was to assure her and her claimant that she and her children were free, to advise her to leave the boat, and to interfere to prevent Wheeler from detaining her. The same facts she had afterwards testified to in open court in Philadelphia, on the trial for assault and riot of the colored men who had assisted her to escape.

After the failure of the application to the supreme court of Pennsylvania, certain persons, indignant at this refusal of justice and at the continuation of Williamson’s false imprisonment, but acting wholly independently of him, induced Jane Johnson to present a petition to Judge Kane, setting forth all the above facts, and praying that as the writ of habeas corpus obtained by Wheeler under pretence of delivering her from imprisonment and detention had been obtained without her privity or consent, and on false pretences, the writ and all the proceedings under it might be quashed. After argument upon the question of allowing this petition to be filed, Judge Kane delivered a long and very elaborate opinion, embracing three principal topics. He began with a very elaborate eulogy upon the writ of habeas corpus, coming with a very singular grace from a judge who had prostituted that writ to so vile a use, viz.: an attempted kidnapping and the false imprisonment for a pretended contempt of the man who had encouraged and assisted Jane Johnson to vindicate her rights under the laws of Pennsylvania. Next followed Judge Kane’s version of his proceedings in committing Williamson, and an attempt to vindicate himself therein; and to which succeeded a very labored effort at enforcing his favorite doctrine, on which his whole proceeding had been based, that slaveholders have a right to transport their slaves through Pennsylvania.

He refused to receive the petition of Jane Johnson, or to pay any attention to its suggestions, on the following grounds:

“The very name of the person who authenticates the paper is a stranger to any proceeding that is or has been before me. She asks no judicial action for herself, and does not profess to have any right to solicit action on behalf of another. On the contrary, her counsel have told me expressly that Mr. Williamson has not sanctioned her application. She has therefore no status whatever in this court.”

After the delivery of this opinion a little episode followed, evidently got up with a view to relieve Judge Kane from a part of the odium under which he was laboring, of which episode the following account was given in the newspaper reports of the proceeding:—

“On the conclusion of the delivery of this opinion, John Cadwallader, (a member of the bar, but not engaged in this case,) in order to remove a false impression from the public mind, said, from his recollection of the circumstances attending the commitment of Passmore Williamson, a proposition was made to amend the return to the writ, when Judge Kane replied:—‘I will not receive an amendment now, but will be prepared to receive it when the record has been completed.’

“No such motion was subsequently made, and the public impression that permission to amend was refused, was not warranted by facts.

“Judge Kane replied that his (Mr. Cadwallader’s) impression was correct. He had been prepared to receive a supplementary return from Mr. Williamson’s counsel, but none had been offered.

“Mr. Cadwallader suggested that an addition be made to the opinion of the court, embracing the remarks of a member of the bar not engaged in the case, and the reply of the judge. He was induced to make the suggestion by the best feeling towards a worthy but mistaken man, hoping it might lead to the adoption of such a course as would end in his liberation.

“Mr. Cadwallader is to embody the remarks he made, when the judge will follow with his answer, so as to complete the record.”[158]

Some days after, (Oct. 26,) Messrs. Gilpin and Meredith, of counsel for Williamson, appeared in Judge Kane’s court, and asked leave to read a petition from Williamson. This petition contained a statement of the facts in relation to his connection with the liberation of Jane Johnson and her children, similar to that contained in his petition to the supreme court of Pennsylvania, Appendix. No. I. The following account of the proceedings on this motion is taken from the Philadelphia Gazette:—

Judge Kane said, ‘The court cannot hear an application from a party in contempt, except to absolve him. I understand there is an application, by petition, in the name of Passmore Williamson, which is not to relieve himself from the contempt, but—’

Mr. Meredith then remarked something in an inaudible tone, and Judge Kane said: ‘Let us not be misunderstood—I am not prepared to receive an application from Passmore Williamson, who is incarcerated for contempt of this court, unless such petition be to relieve himself from contempt by purgation. I am of opinion, unless otherwise instructed, that that is an independent preliminary to any other application from him.

‘If, therefore, the counsel arise to present an application from Mr. Williamson, it must be for purgation. The counsel do not inform the court whether they are here to purge Mr. Williamson from the contempt. As at present advised, I have no power to hear their application, whatever it may be, in his behalf.’

Mr. Meredith said there were two kinds of contempts; one of personal insult to the bench, with which Passmore Williamson is not concerned; but the contempt consisting in not making a proper return to the process of the court.

Mr. Meredith then proceeded to argue that such a contempt could be purged by making an answer to the court and paying the costs, which he was now prepared to do.

Judge Kane said, that up to this moment there has been, on the part of the individual to whom the function of the court has been delegated and exercised in this matter, not a single particle of conscious excitement. He did not believe it was in the power of the entire press of the United States, after he had honestly administered his duty to the best of his ability, to give him a pang, or produce one excited feeling; therefore, now as heretofore, he looked upon the question as one that has no feeling on the bench.

If he understood the remarks of Mr. Meredith, he meant to say to the court that Passmore Williamson was desirous of testifying now his willingness to obey the exigencies of the writ of habeas corpus. If so, he had a simple, straightforward, honorable course to pursue. He has no need of making a narrative of facts or arguments of protest; let him come forward into court, declaring that he is willing to obey the writ issued by this court; and when he has done that, in the estimation of the judge, he is purged of his contempt.

Nothing on his part of personal offence was evinced to the court; his demeanor was entirely respectful; but he failed to obey the writ which the law issued to him; and when he has obeyed that writ, it will be the duty of this court to free him. What is understood by ‘purgation’ is not simply a mere form of words. It matters not about that, provided he received, from the party who is in contempt for having disobeyed the process of the court, the assurance that he is now prepared to obey such process, and, until he is prepared to announce his disposition to obey, he could not hear him upon any other subject which asserts that the court has erred either in point of fact or law, or has exercised a jurisdiction which does not belong to it. He said he would hear the counsel upon the question whether the court can legally hear any other petition than the one of purgation.

The respondent’s counsel then proceeded to argue the right of the court to hear a petition, other than of purgation, from Passmore Williamson.

Mr. Meredith said he had found nothing in the authorities, either English or American, where persons were held guilty of a contempt in responding to a writ of habeas corpus unless the return was evasive. He referred to a case in 3 Mason, where, in a return to a writ before Judge Story, there was clearly an evasion shown on the face of the return.

Under these circumstances, Judge Story declared that the course of practice was to propound interrogatories and compel the respondent to disclose more fully. Mr. M. submitted whether it was not proper to subject the petitioner in this case to a further questioning. He could not find in English or American books any other course.

Mr. M. supposed that the respondent was committed until he should answer interrogatories. Why had they not been propounded in the form that the court might think proper to put them? No case could be shown in which a defendant was to be committed for contempt, until he presented a prayer to have interrogatories propounded to him. How is he to answer what has not been filed?

According to the books, the defendant may come into court at any time, and take advantage of an omission to file interrogatories within four days. If another view should be taken by the court, he would then ask that an order be made to show the defendant what he was to do to rid himself of the contempt.

Judge Kane said that the defendant could make a declaration, that he was now ready to answer interrogatories.

Mr. Meredith asked that the court make an order submitting certain interrogatories, such as it would deem sufficient, to the prisoner, the proper answers to which would be enough to purge him of the contempt.

The court then said, ‘In some of the cases mentioned we know that the party adjudged to be in contempt submitted himself to interrogatories, either by writing or per se. I see no difficulty in the way of the court’s giving this decision in the form of an order.

‘The suggestion of the counsel now has frequently been intimated by the court. The prisoner might at any time, under a proper application, have been before the court. If there was a misunderstanding of the position of the case by the counsel for Mr. Williamson, it is a matter of sincere regret to me.’

Mr. Meredith said he could not find any case of petition that interrogatories should be filed, in any of the English books.

Judge Kane.—The gentleman, Mr. Williamson, is now recusant, and I often think that forms sometimes have meaning and I cannot interfere otherwise than to say as I have said above.

Mr. Meredith.—I can enlarge the remark and say that forms always have meaning. He argued that the purging interrogatories must be filed. If not filed, the party was entitled to his discharge. He argued from the ‘Chancery Practice’ of Smith, that the defendant ought only to be imprisoned until he shall have properly answered the interrogatories put to him.

Mr. Van Dyke, the district attorney, then said that the question now was whether a person, in contempt, had any standing in court whatever. So far as Mr. Williamson is concerned, he has no standing. The argument of the gentlemen on the other side must be taken as arguing against the adjudication of this court. How far can a man in contempt come into court and purge that contempt? How did the counsel get over the fact, that his client was in contempt? He must first submit himself to the court by asking to be permitted to purge himself of contempt.

Mr. Meredith closed the argument, and the proceeding was closed by an entry on the part of Judge Kane of the following order on the record.

The United States v. Williamson. And now, October the 29th, 1855, the court having heard argument upon the motion for leave to read and file among the records, in this case, a certain paper writing purporting to be the petition of Passmore Williamson, and having considered thereof, do refuse the leave moved for, inasmuch as it appears that the said Passmore Williamson is now remaining in contempt of this court, and that by the said paper writing he doth in no wise make purgation of his said contempt, nor doth he thereby pray that he may be permitted to make such purgation; wherefore the said Passmore Williamson hath not at this time a standing in this court.

To the end, however, that the said Passmore Williamson may, when thereunto minded, the more readily relieve himself of his said contempt, it is ordered that whenever by petition, in writing, to be filed with the clerk, Passmore Williamson shall set forth, under his oath or solemn affirmation that ‘he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogations as may be addressed to him by the court, touching the matters heretofore legally enquired of by the writ of habeas corpus to him directed, at the relation of John H. Wheeler,’ then the marshal do bring the said Passmore Williamson before the court, if in session, or if the court be not in session, then before the judge at his chambers, to abide the further order of the court in his behalf. And it is further ordered that the clerk do furnish copies of this order to the said Passmore Williamson, and to the attorney of the United States, and to the marshal.

Under this order Williamson presented the following petition:

United States of America v. Williamson, District Court of the United States, Eastern district of Pennsylvania.

To the Honorable the Judge of the District Court of the United States for the Eastern district of Pennsylvania:

The petition of Passmore Williamson respectfully showeth: That he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogatories as may be addressed to him by the court, touching the matter heretofore inquired of him by the writ of habeas corpus to him directed at the relation of John H. Wheeler. Wherefore he prays that he may be permitted to purge himself of said contempt by making true answers to such interrogatories as may be addressed to him by the honorable court touching the premises.

P. WILLIAMSON.

Affirmed and subscribed before me, Nov. 2, 1855.

CHARLES F. HEAZLITT, U. S. Com.

Judge Kane hesitated to receive this petition because it did not conform to his order by containing the word legally, before the phrase “inquired of,” (thus confirming the legality of the proceedings under the original writ of habeas corpus directed to Williamson.) But finding that Williamson was resolved to make no such concession, Judge Kane finally concluded to receive the petition, and made the following reply to it:

‘Passmore Williamson: The court has received your petition, and, upon consideration thereof, have thought right to grant the prayer thereof. You will therefore make here in open court your solemn affirmation, that in the return heretofore made by you to the writ of habeas corpus, which issued from this court at the relation of John H. Wheeler, and in the proceedings consequent thereupon, you have not intended a contempt of this court or of its process. Moreover, that you are now willing to make true answers to such interrogatories as may be addressed to you by the court, touching the premises inquired of in the said writ of habeas corpus.’

The required affirmation was then made in the form dictated by the judge.

Mr. Van Dyke, the district attorney, then submitted an interrogatory in writing, which was not read aloud at that time.

Mr. Gilpin said Mr. Williamson was perfectly willing to answer the interrogatory submitted by the district attorney, but as he did not know what other interrogatories might follow this, he thought it best that it and its answer should be filed.

Mr. Van Dyke said he was willing either to file the interrogatory or to submit it for an immediate reply.

Mr. Gilpin and Judge Kane both remarked that they had understood the district attorney to intimate, that if the question propounded was answered in the affirmative, he would be satisfied. The court further said, that it was for the petitioner to make his election whether or not the interrogatories and the replies should be filed.

After consultation with his counsel, the petitioner preferred that the questions and answers should be filed.

The court directed that the interrogatories should be filed.

Mr. Gilpin then read the interrogatory that had been propounded, and the reply of Mr. Williamson.

The interrogatory was as follows:

‘Did you at the time of the service of the writ of habeas corpus, at the relation of John H. Wheeler, or at any time during the period intervening between the service of said writ and the making of your return thereto, seek to obey the mandate of said writ, by bringing before this honorable court the persons of the slaves therein mentioned? If to this interrogatory you answer in the affirmative, state fully and particularly the mode in which you sought so to obey said writ, and all that you did tending to that end.’

The reply made was as follows:

‘I did not seek to obey the writ by producing the persons therein mentioned before the court, because I had not, at the time of the service of the writ, the power over, the custody or control of them, and, therefore, it was impossible for me to do so. I first heard of the writ of habeas corpus on Friday, July 20, between one and two o’clock A. M., on my return from Harrisburg. After breakfast, about nine o’clock, I went from my house to Mr. Hopper’s office, when and where the return was prepared. At ten o’clock I came into court, as commanded by the writ. I sought to obey the writ by answering it truly; the parties not being in my possession or control, it was impossible for me to obey the writ by producing them. Since the service of the writ I have not had the custody, possession or power over them; nor have I known where they were, except from common rumor, or the newspaper reports in regard to their public appearance in the city or elsewhere.’

Some discussion arose between the district attorney and the counsel of Mr. Williamson. Mr. Van Dyke contended that the reply of the defendant was evasive and contradictory. The judge said the difficulty, he thought, could be easily overcome by amending the answer, and at the suggestion of the court it was amended in the following manner:

‘I did not seek to obey the writ by producing the persons in the writ mentioned before this court. I did not seek, because I verily believed that it was entirely impossible for me to produce the said persons, agreeably to the command of the court.’

This answer was then accepted by the court and ordered filed.

Mr. Van Dyke then submitted another interrogatory, the substance of which was, whether or not Mr. Williamson had been guilty of mental reservations in his reply to the first interrogatory?

The court overruled this interrogatory as superfluous and improper.

Mr. Van Dyke withdrew this interrogatory and offered another, which was also overruled by the court, on the ground that it led to such replies as had already been objected to by the district attorney.

Mr. Van Dyke also withdrew this question.

Judge Kane then remarked that the district attorney had been invited to aid the court in this case, but that he would bear in mind that his relation to Mr. Wheeler was now suspended. This was only an inquiry as to what injury had been done the process of the court.

Mr. Van Dyke said he was aware of the position he occupied.

Judge Kane then said: ‘The contempt is now regarded as purged and the party is released from custody. He is now reinstated in the position he occupied before the contempt was committed. Mr. Williamson is now before me on the return to the writ.’

Mr. Van Dyke then arose and addressed the court.

After Mr. Van Dyke had concluded, Mr. Meredith inquired: ‘Is Mr. Williamson discharged?’

Judge Kane replied, ‘He is. I understand from the remarks of the district attorney, that a nolle prosequi has been entered in the case in this court.’

The court then adjourned. Mr. Williamson was congratulated by his friends on his restoration to liberty.[159]

Footnotes:

[1] The German graf, for which the Latin comes (in English, count or earl) was employed as an equivalent, is a form of the same word. The law Latin for sheriff is vice-comes, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl.

[2] See Forsyth’s History of Trial by Jury, ch. iv. sec. 4.

[3] History of England, Appendix, I.

[4] The decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal.

[5] History of England, Appendix, II.

[6] We may observe that even at present, whether in England or America, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities.

[7] In the king’s absence—and the Anglo-Norman kings were often absent on visits to their continental dominions—this chief justiciary acted in all respects as the king’s substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. Such was the case with Ranulphus de Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise in Latin, On the Laws and Customs of the Kingdom of England, is the oldest book of the common law. He went with Richard I. on the third crusade, and was killed at the siege of Acre.

[8] It might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties.

[9] Not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king’s courts, by the writ of pone and others.

[10] Originally, and down to a comparatively recent period, the Inns of Court were real schools, “readers” or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. Now, the examination is a mere form, and the student seeks instruction where he pleases. Even the nominal term of study has been reduced to five, and in some cases to three years.

[11] This distinction between attorneys and barristers, though still in full vogue in England and in several of the British colonies, is not recognized in the United States, where, indeed, it never had but a feeble and transient existence.

[12] Down to the period of the reformation the abbots of the greater monasteries sat also in this house.

[13] If the Lords, says Campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. It certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them.

[14] Hence the necessity of venue, that is, the allegation in all declarations and indictments of some place in some county where the matter complained of happened, in order to a trial by a jury of the vicinage. In personal actions this necessity of trying a case in the county where the transaction occurred was got rid of by first setting out the true place of the transaction, and then alleging under a videlicet a venue in the county where the action was brought, which latter allegation the courts would not allow to be disputed. But in criminal proceedings and real actions the necessity of a trial in the county where the offence was committed or the land lies still continues.

The origin of the jury in a body of neighbors who decided from their own knowledge will seem less remarkable when we recollect that by the customs of the Anglo-Saxons all sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. See Palgrave’s English Commonwealth, vol. i. p. 213.

[15] See Forsyth’s Trial by Jury, ch. x. sec. 1.

[16] Down to the time of Elizabeth all cases occurring in Middlesex county, in which Westminster lies, were thus tried in bank.

[17] In London and Middlesex four sessions were held a year; in the four northern counties only one.

[18] This history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the District Courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members.

[19] The appeal from the English colonial courts to the king in council—the appeal cases being heard and decided by a committee of the privy councillors learned in the law—is another remnant of the old system, in which the constitution of the ancient Aula Regis has been very accurately preserved.

[20] Both these courts proceeded according to the forms of the civil law, and without a jury. But occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of Henry VIII. the trial of all maritime felonies before the Admiralty Court was directed to be by jury.

[21] Hyde, (afterwards Lord Clarendon,) himself a lawyer, by whom the usurpations of this court were brought to the notice of Parliament, stated that more damages had been given by the earl marshal in his days, for words of supposed defamation, of which the law took no notice, than by all the courts of Westminster Hall during a whole term.

[22] The name is sometimes spelt Brabaçon, Brabançon, Brabason, and Brabanson.

[23] Hume, who designates them “desperate ruffians,” says “troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another; they often acted in an independent manner, and under leaders of their own. The greatest monarchs were not ashamed, on occasion, to have recourse to their assistance; and as their habits of war and depredation had given them experience, hardiness, and courage, they generally composed the most formidable part of those armies which decided the political quarrels of princes.”—Vol. i. 438. In America we have no mercenary soldiers, but plenty of mercenary politicians, almost as much to be dreaded.—Ed.

[24] They were removed because, during the king’s absence on the continent, they had been guilty of taking bribes, and other misdemeanors. Of De Wayland, one of their number, and the first chief justice of the Common Pleas, Lord Campbell gives the following account: When arrested, on the king’s return from Aquitaine, conscious of his guilt, he contrived to escape from custody, and, disguising himself in the habit of a monk, he was admitted among friars-minors in a convent at Bury St. Edmund’s. However, being considered a heinous offender, sharp pursuit was made after him, and he was discovered wearing a cowl and a serge jerkin. According to the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. At the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. Still it would have been deemed sacrilegious to take him from his asylum by violence; but the lord chief justice preferred surrendering himself to perishing from want. He was immediately conducted to the Tower of London. Rather than stand a trial, he petitioned for leave to abjure the realm; this favor was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the crown. Having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side at Dover, he was put on board a ship and departed to foreign parts. He is said to have died in exile, and he left a name often quoted as a reproach to the bench till he was superseded by Jeffreys and Scroggs.

[25] That is, in the ordinary discharge of his duties. His attempt to take away the liberties of the Scotch we shall presently see.—Ed.

[26] Just like our northern candidates for the presidency, and the dough-face politicians who contrive to get chosen to Congress by northern constituencies, whose rights they then barter away and betray.—Ed.

[27] This is the very ground upon which it is attempted, now, to justify the repeal of the Missouri prohibition of slavery, while Brabacon’s defence of English judges in Scotland is a counterpart to the justification by our federal judges of the authority given to slave-catching commissioners.—Ed.

[28] May the pending attempts of the Southern States, countenanced and supported by the federal judges, to establish a “superiority” and “direct dominion” over the north, be met and repelled with similar spirit and success!—Ed.

[29] He had been murdered by a body of insurgent peasants headed by Jack Straw, one of the leaders in Wat Tyler’s insurrection.—Ed.

[30] Some of our federal judges would no doubt like very much to see this rule established among us.—Ed.

[31] The persistence of Richard II. in the same arbitrary principles of which the advocacy cost Tresilian his life, caused his deposition a few years afterwards, as to which, Lord Campbell observes,—

“While we honor Lord Somers and the patriots who took the most active part in the revolution of 1688, by which a king was cashiered, hereditary right was disregarded, and a new dynasty was placed on the throne, we are apt to consider the kings of the house of Lancaster as usurpers, and those who sided with them as rebels. Yet there is great difficulty in justifying the deposition of James II., and condemning the deposition of Richard II. The latter sovereign, during a reign of above twenty years, had proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppression; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather, was now almost unanimously resolved to submit no longer to his rule.”

[32] Fuller, in praising Fortescue and Markham, says, “These I may call two chief justices of the chief justices, for their signal integrity; for though the one of them favored the house of Lancaster, and the other of York, in the titles to the crown, both of them favored the house of Justice in matters betwixt party and party.”

[33] A list by no means limited to England, but very much lengthened out in America.—Ed.

[34] Some of our American advocates of constructive treasons have laid down the law much in the same spirit.—Ed.

[35] It was, we may suppose, from this charge that Mr. Justice Curtis, of the Supreme Court of the United States, got the law retailed in his charge to the grand jury of the Massachusetts District, in consequence of which indictments were found against Wendell Phillips and Theodore Parker for obstructing the execution of the fugitive slave act—on the ground that certain speeches of theirs in Faneuil Hall against that statute “referred to a purpose” and “incited to an act” of resistance to it, thereby making their expression of opinion criminal.—Ed.

[36] The recent claim set up in America for legislative supremacy over conscience—a claim contended for by so many of our leading lawyers and divines—is not less blasphemous and outrageous than this claim of Henry VIII., and belongs to the same category.—Ed.

[37] This would hardly be allowed by some of our American juridical deniers and deriders of the “higher law.” It is hard to distinguish a law (such as the fugitive slave act) which sets the moral sentiment at defiance, from a law that God shall not be God.—Ed.

[38] One striking instance, among a thousand, both old and new, how little the so much vaunted decisions of courts virtually amount to. Decisions that are to stand, can only stand upon their own inherent rectitude and reasonableness, and not upon the authority of those who make them.—Ed.

[39] Some of our American judges who have of late attained a very unenviable public character have also the reputation of being virtuous and amiable in private life.—Ed.

[40] Noy at this time was of the popular party. He afterwards went over to the court, and was made attorney general.—Ed.

[41] Similar pretences of respect for law and popular rights often serve as preface here in America to judgments as atrocious as that of Chief Justice Hyde.—Ed.

[42] This is the universal excuse for all sins, whether of omission or commission, on the part of courts who pay but little regard to Bishop Burnet’s sensible observation that a precedent against reason “signifies no more but that the like injustice has been done before.”—Ed.

[43] Though the lawyers, both in England and America, have long since abandoned the pretence, so impudently maintained by Hyde, of a right in the executive authorities to imprison for contempt, into the ground and nature of which the courts had no right to inquire, they still claim for themselves and for one another—at least in Pennsylvania—a like right, and insist with the same unction upon the absolute necessity of trusting “the courts” in these matters, and of relying upon their “mercy.” See, in the Appendix, No. 3, the opinion of the Supreme Court of Pennsylvania, as delivered by Judge Black, of which the insolent conclusion was evidently borrowed from the above opinion of Chief Justice Hyde.—Ed.

[44] This celebrated lawyer, who had succeeded Fleming as chief justice of the King’s Bench, had been, as well as Crewe, turned out of office after holding the place for three years, because he would not allow the government to interfere with his administration of justice. He was now the leader of the popular party in the House of Commons.—Ed.

[45] We have had recent striking instances in America of the same thing in some of the “misconstructions” placed by judges on the laws in restraint of drunkenness and liquor selling.—Ed.

[46] Like those given by several federal judges in support of the fugitive slave act.—Ed.

[47] Noy had begun, like Brampston, a flaming patriot, but, like him and so many other lawyers, had been bought over to the side of power by the hope of promotion, and being made attorney general, had advised the issue of the writs for ship money.—Ed.

[48] Cro. Car. 403. These forms are no longer used. The chief justice is now sworn in privately before the chancellor; and without any speechifying he enters the court and takes his place on the bench with the other judges. But in Scotland they still subject the new judge to trials of his sufficiency; while these are going on he is called lord probationer; and he might undoubtedly be plucked if the court should think fit.

[49] This is exactly the sort of judges from whom we in America have so much to fear.—Ed.

[50] We have seen in America similar attempts to stop counsel from exposing the unsoundness of judicial opinions given in support of the fugitive slave act.—Ed.

[51] This is the very doctrine lately revived, in a little different shape, by some of our American divines—that whatsoever the legislative power in its conscience thinks it may require, we ought to yield.—Ed.

[52] Some of our American federal judges are in the habit of declaiming much in the same style against abolitionists—who, indeed, may be considered as occupying a position in our present affairs in many respects parallel to that of the English Puritans in the times of Charles I.—Ed.

[53] Having once refused to hear counsel against ship money, he now undertook to square the account by refusing to hear counsel for it.—Ed.

[54] See life of Hyde, ante, p. 97.

[55] This supposed inability of the king to do wrong has in America among a certain class been transferred to the federal government, which represents the royal authority of the English.—Ed.

[56] 2 Bl. Com. 69. Compulsory knighthood was abolished by the Long Parliament, 16 Car. I. c. 20.

[57] Their decisions are still of as much authority on legal questions as those of courts sitting under a commission from the crown; and they were published with the sanction of the chancellor and all the judges in the reigns of Charles II. and James II.

[58] It is doubtless a like mixture of motives that prompts just now the conduct of some of our American lawyers.—Ed.

[59] Charles II., in his Declaration from Breda, had promised that he should “proceed only against the immediate murderers of his royal father.”

[60] In answer to the address of the two Houses of the Convention Parliament to spare the lives of Vane and Lambert, the lord chancellor reported, “His majesty grants the desire of the said petition;”—the ancient form of passing acts of Parliament. The ultra Cavalier House of Commons which followed desired Vane’s death, but could not alter the law or abrogate the royal promise.

[61] In his younger days, before the civil war, Sir Henry Vane had been among the early emigrants to Massachusetts, and as governor of that colony had borne a part in some remarkable transactions there.—See Hildreth’s History of the United States, vol. i. ch. ix.

[62] A fortress on the south shore of the English Channel, taken by Cromwell from the Spaniards, and by Charles II. sold at this time to Louis XIV. of France.

[63] So Bacon, better at precept than at practice, in his advice to Sir George Villars, requires in judges these three attributes—they must be men of courage, fearing God, and hating covetousness: an ignorant man cannot, a coward dare not be a good judge. On the American bench we have too many cowards.—Ed.

[64] The following dialogue occurred after the verdict:—

Prisoner.—I most humbly beseech your lordship to remember my condition, (he had before stated himself to be the father of nine small children,) and intercede for me.

Lord Hyde.—I would not intercede for my own father in this case, if he were alive.

[65] This practice of putting questions to the prisoner intended to intimidate him, to involve him in contradictions, or to elicit from him some indiscreet admission, had ceased during the Commonwealth, but was revived by the new royal judges.

[66] This was the same doctrine afterwards attempted to be maintained by Lord Mansfield, but overruled by a declaratory act of Parliament.

[67] An American specimen of this style of judicial decision may be found in Judge Grier’s way of speaking on the bench about Abolitionists.—Ed.

[68] 6 State Trials, 701-709.

[69] 2 Hale, P. C. 158.

[70] The above passage enclosed in brackets has been added by the editor. Our American judges, more subtle than their predecessors, instead of fining juries for not rendering verdicts according to directions, have introduced the practice of questioning jurors beforehand, and not allowing them to sit unless they pass a satisfactory examination.—Ed.

[71] This was an expensive residence built by Clarendon, to which the populace gave that name, under the unfounded idea that the expense of it was defrayed out of bribes received for consenting to the sale of Dunkirk.—Ed.

[72] This has been from great antiquity the decoration of the English chief justices. Dugdale says it is derived from the name of St. Simplicius, a Christian judge, who suffered martyrdom under the Emperor Diocletian.—Ed.

[73] Among these was, “whether the act of severing the head of Charles I. from his body could be alleged to have been committed in his own lifetime,” and “whether it should be laid as against the peace of the late or of the present king.” Judge Mallet made the confusion more confounded by maintaining that by the law of England a day is indivisible; and that, as Charles II. certainly was our lawful king during a part of that day, no part of it had been in the reign of Charles I.

[74] This case, thus characterized by Lord Campbell, served as foundation for the remarkable attempt recently made among us to convert opposition to the fugitive slave act into high treason. This bloody idea was first started by George T. Curtis, a slave-catching commissioner of Massachusetts, in his telegraphic despatch to Mr. Webster, giving an account of the rescue at Boston, by a number of colored men, from the hands of the U. S. marshal, of a man named Shadrach, who had been seized on one of Commissioner Curtis’s warrants as a fugitive slave.

Not long after, in September, 1851, a Maryland slaveholder named Gorsuch obtained from the notorious Edward D. Ingraham, the Philadelphia slave-catching commissioner, warrants against four alleged fugitive slaves. He proceeded with an armed party and a deputy marshal to Christiana, and besieged a house in which the slaves were said to have taken refuge. Intelligence had been received of the approach of the party, and the slaves manfully resolved to defend themselves, and, if possible, to achieve their freedom. Some of their colored friends gallantly came to their aid and generously shared their danger. Gorsuch, the slave-hunter, and the marshal entered the house, but were repulsed, each party firing at the other, but, as appears, without effect. The besiegers called for assistance, and meeting Caspar Hanway, a white man, on horseback, the marshal, as authorized by the fugitive law, commanded his aid in arresting the slaves. Mr. Hanway, as became a republican and a Christian, refused obedience to the infamous mandate. In the mean time the negroes made, it would seem, a sortie, advancing on the enemy. Hanway called to them not to fire. His exhortation was unheeded. Gorsuch was shot dead, another was wounded, and the residue of the slave-catchers sought safety in flight.

At the next meeting of the United States District Court for the Eastern District of Pennsylvania, this case was brought to the notice of the grand jury by Judge Kane.

After reciting the facts as they appeared in the newspapers, he added, that it was reported “that for some months back, gatherings of people, strangers as well as citizens, have been held from time to time in the vicinity of the place of the recent outrage, at which exhortations are made and pledges interchanged to hold the law for the recovery of fugitive slaves as of no validity, and to defy its execution.” In other words, anti-slavery meetings had been held in Lancaster county, as in other parts of the free states, and in these meetings one of the most detestable acts of modern legislation had been denounced as cruel and unjust, and the people in attendance had expressed their determination not to participate in slave hunts.

“If,” said the judge; “the circumstances to which I have adverted [viz: the riot at Christiana and the anti-slavery meetings] have in fact taken place, they involve the highest crime known to the law.” And what crime is that? Treason. And what is treason? The judge answers, “Levying war against the United States.” And what had the affair at Christiana to do with war against the United States? Again the judge replies, “Any combination forcibly to prevent or oppose the execution or enforcement of a provision of the Constitution or of a public statute, if accompanied by an act of forcible opposition in pursuance of such combination,” is embraced in the expression “levying war against the United States,” as used in the constitutional definition of treason. Hence, four negroes combining to maintain their newly-recovered liberty by forcibly resisting the efforts of a slave-catcher, are guilty of levying war against the United States.

But the judge’s patriotic zeal against traitors did not confine itself to the enemies of the United States actively engaged in the Christiana campaign. Here, indeed, he went far beyond even the infamous Judge Kelynge. “It is not necessary,” so he told the grand jury, “to prove that the individual accused was a direct personal actor in the violence, nor is even his personal presence indispensable. Though he be absent at the actual perpetration, yet if he directed the act, devised, or knowingly furnished the means for carrying it into effect, or instigated others to perform it, he shared their guilt. In treason, there are no accessories.” From all this the grand jury were to understand that anti-slavery men, by their doctrines of human rights and their denunciations of the fugitive act, instigated fugitive slaves to defend themselves; hence, as, in treason, all are principals, however remotely and indirectly concerned, these abolition instigators had also levied war, were traitors, and might be legally hung. To strengthen this intended impression on the minds of the jury, the judge launched out into an invective against the abolitionists, concluding with the very significant and smart admonition, “While he (the abolitionist) remains within our borders he is to remember that successfully to instigate treason is to commit it.”

What is still more astonishing than even this charge, the grand jury, to whom it was delivered, showed themselves such ready receivers of its infamous and atrocious doctrines as to bring into court thirty bills for high treason, against as many different individuals, founded upon it.

Of these thirty indictments, the only one brought to trial was that against Caspar Hanway, above mentioned. The only acts proved against this man, in support of the charge of having “traitorously levied war against the United States,” were, 1. having declined to assist the marshal in arresting the fugitives; and 2. in calling to the negroes and urging them not to fire.

Judge Grier presided on the trial, and notwithstanding his vulgar invectives against the abolitionists, found himself compelled to charge the jury, even in the presence of Judge Kane, that “a number of fugitive slaves may infest a neighborhood, and may be encouraged by their neighbors in combining to resist with force and arms their master, or the public officer who may come to arrest them; they may murder or rob them; they are guilty of felony and liable to punishment, but not as traitors.” The prisoner was of course acquitted, and all the other indictments abandoned; and thus ended in shame and ridicule Judge Kane’s ingenious device for hanging all who resisted the fugitive slave law. Yet this same man, at a Kossuth meeting at Philadelphia, made a rampant filibustering speech in behalf of oppressed nations, quoting with exultation the words of Vattel, “When a people from good reasons take up arms against an oppressor, justice and generosity require that brave men should be assisted in the defence of their liberties.”—Ed.

[75] See ante, pp. 150, 151.

[76] And yet it is upon the authority of these worthless reports that some important American decisions have been based. See 13 Mass. Reports, 356, Commonwealth v. Bowen; also the preceding note.—Ed.

[77] For an account of Chiffinch, see the Life of Jeffrey, p. 278.

[78] Our recent American history presents a curious parallel to the English Popish plot delusion and the use made of it by the unscrupulous politicians of that age. The basis of that delusion was the well-founded horror which the English people entertained for the Popish religion as hostile to their liberties. The immediate allegation upon which it rested was, that the Papists had formed a conspiracy to assassinate Charles II., and so to open the way to the throne for the Duke of York, (afterwards James II.,) a professed Papist.

The suggestion of this plot, founded merely on vague suspicions,—(if indeed it was not, as some writers think, purposely started for political objects,)—was taken hold of by the unprincipled Shaftesbury, who from having been an ultra courtier, had become the leader of the country party. He sought to use it to stimulate the people against the court, and to prepare the way for his project of excluding the Duke of York from succession to the throne. He expected that the court would oppose this delusion, and so would make itself still more unpopular. But Charles II., no less unprincipled than Shaftesbury, was quite as ready as he to play at any dangerous game; and that he might gain credit for Protestantism, (though all the while secretly a Papist,) he resolved to humor the delusion to the utmost, and to allow it full play against its unfortunate victims.

So here in America, the democrats, (so called, but in fact slavery extenders,) taking advantage of the very strong and well-founded popular sentiment in favor of the Union, and seeking to recommend themselves to favor as a national party, hit upon the similar expedient of accusing the abolitionists of a plot to dissolve the Union, part of the odium of which they hoped to throw upon their political opponents, the so-called whigs, by accusing them as screeners and favorers of the abolitionists. The whigs, however, in imitation of the policy of Charles II., and under the leadership of the late Daniel Webster, sought to turn this pretended plot to their own advantage, by coming out still more furious Union-savers than even the democrats, and denouncing the abolitionists with still greater fury—thus working up the public mind into a terror at the imaginary danger of the Union, much like that of the English people at the time of the Popish plot. We, too, have had our trials for treason, (see ante, p. 158-161;) and if we have had no bloody executions, it has not been for want of Scroggses, both on and off the bench.—Ed.

[79] For this he probably received a good sum of money.

[80] “By his zeal in the Protestant cause he gained for a while a universal applause throughout the whole nation.”—Athenæ, iv. 116.

[81] This profession of contempt for “vulgar noise” has lately been repeated in America by a judge whose manner and bearing on the bench come as near those of Scroggs as the present times will bear.—Ed.

[82] From this asseveration a suspicion arises of pecuniary corruption; but I believe that Scroggs was swayed in this instance by a disinterested love of rascality.

[83] Roger North, whose curious life of his brother is largely quoted in this memoir.—Ed.

[84] At that time not more than fifty volumes were required. Now, unfortunately, a law library is “multorum camelorum onus,” (a load for many camels.)

[85] This sort of practice on the weakness of judges, keeping them in good humor by flattery and complaisance, may possibly, as the text implies, be abandoned in England, but in America it is still sufficiently common.—Ed.

[86] The distinguishing badge worn by the king’s counsel. The barristers wear stuff gowns. The serjeants, (the highest rank of practitioners,) enjoying a monopoly of the practice of the Court of Common Pleas, which originally had exclusive cognizance of all civil actions, have or had, as their badges, a coif, or black velvet cap, (for which a wig was about this time substituted,) and parti-colored robes.—Ed.

[87] The hours then kept must have been very inconvenient for lawyers in Parliament, as all the courts and both houses met at eight in the morning and sat till noon.

[88] This early rising rendered it necessary for him to take “a short turn in the other world after dinner.”

[89] Roger assures us he did not purloin any part of the treasure, for which he takes infinite credit to himself.

[90] This was the title taken by Finch on promotion to the great seal. Nottingham is greatly lauded by Blackstone and other writers on jurisprudence as a “consummate lawyer,” and as the father of the modern English equity system. His abilities were unquestionable, but his political career, like that of so many other “consummate lawyers,” has some very black spots.—Ed.

[91] Here we have one of many English precedents of assault upon the right of petition—a thing by no means unknown in our American politics.—Ed.

[92] The same Parliament had already impeached Scroggs. See ante, p. 180.

[93] Here again is the old pretence of “levying war,” under which it has been attempted with us to convert hostility to the fugitive slave act into treason. See ante, p. 158.—Ed.

[94] Pemberton, though well aware that, to justify the grand jury in finding an indictment, a prima facie case of guilt must be made out, instructed them that “a probable ground of accusation” was sufficient.—Ed.

[95] By this word “pension,” I conceive we are to understand salary while the lord keeper was in office, and not, as might be supposed, an allowance on his retirement.

[96] Pemberton had been appointed to succeed Scroggs as chief justice of the King’s Bench, but not being found quite serviceable enough, was now removed into another court.—Ed.

[97] “Sir F. North being made lord keeper on the death of the Earl of Nottingham, the lord chancellor, I went to congratulate him. He is a most knowing, learned, and ingenious person; and, besides having an excellent person, of an ingenuous and sweet disposition, very skilful in music, painting, the new philosophy, and political studies.”—Mem. i. 513. Judge Kane is said to be quite an accomplished person.—Ed.

[98] The principal obstacle to law reform in America is the pecuniary interest which the lawyers think they have in keeping up old abuses.—Ed.

[99] Bishop Burnet, the historian.

[100] See beyond, life of Jeffreys, p. 302.

[101] An account of Guilford’s unavailing attempt to prevent this appointment will be found in the life of Wright, chap. xix.—Ed.

[102] It is curious that Roger gravely states that “he was dropped from the tory list and turned trimmer.”—Life, i. 404.

[103] Life, ii. 179. It should be recollected that, at this time, the council met in the afternoon, between two and three—dinner having taken place soon after twelve, and a little elevation from wine was not more discreditable at that hour than in our time between eleven and twelve o’clock at night.

[104] James and Jeffreys setting themselves up as the special advocates of toleration, (with a view to the introduction of Popery,) is like our American slaveholders putting themselves forward as advocates of the rights of property and as special democrats, for the purpose of upholding slavery, based as slavery is on principles at war with the fundamental idea of property and democracy.—Ed.

[105] Life, ii. 150, 153, 334.

[106] Lord Coke lays down, that upon such an occasion there ought to be a warrant by advice of the Privy Council, as in 32 H. 8, to certain physicians and surgeons named, authorizing them to administer to the royal patient “potiones, syrupos, confectiones, laxitivas medicinas, clysteria, suppositoria, capitis purgea, capitis rasuram, fomentationes, embrocationes, emplastra,” &c.; still, that no medicine should be given to the king but by the advice of his council; that no physic should be administered except that which is set down in writing, and that it is not to be prepared by any apothecary, but by the surgeons named in the warrant.—4 Inst. 251. These were the precautions of times when no eminent person died suddenly without suspicion of poison. Even Charles II. was at first said to have been cut off to make way for a Popish successor, although, when the truth came out, it appeared that he had himself been reconciled to the Roman Catholic church.

[107] See the speech at full length. Life, ii. 192. There is nothing in it very good or very bad.

[108] Evelyn tells us that this was the first rhinoceros ever introduced into England, and that it sold for two thousand pounds.

[109] We may add—for his tory principles, and for the loss of America to the British crown.—Ed.

[110] Saunders was very ingenious; but in the invention of charges to serve the turn of tyranny he has his match in some of our American lawyers.—Ed.

[111] This is not the William Jones mentioned in the life of Lord North, but a person of a different character, one Edward Jones.—Ed.

[112] So we have lately seen five inhabitants of Philadelphia prosecuted for a riot, for aiding to give effect to a statute of that state abolishing negro slavery.—Ed.

[113] The editions of these Reports by the late Serjeant Williams, and by the present most learned judges, Mr. Justice Patteson and Mr. Justice Vaughan Williams, illustrated by admirable notes, may be said to embody the whole common law of England, scattered about, I must confess, rather immethodically.

[114] The name is spelt no fewer than eight different ways—“Jeffries,” “Jefferies,” “Jefferys,” “Jeffereys,” “Jefferyes,” “Jeffrys,” “Jeffryes,” and “Jeffreys,” and he himself spelt it differently at different times of his life; but the last spelling is that which is found in his patent of peerage, and which he always used afterwards.

[115] “Le roy s’avisera,” the royal veto to a bill passed by the two houses.

[116] Roger L’Estrange was a noted pamphleteer, one of the oracles of the high church and Tory party, and the founder of the first English newspaper.—Ed.

[117] See the account of this trial in the life of North, Lord Guilford, ante, p. 210.

[118] See ante, p. 220.

[119] See life of Saunders, ante, p. 261.

[120] Evelyn, Oct. 4, 1683. “Sir Geo. Jeffreys was advanced, reputed to be most ignorant, but most daring.”

[121] Stat. 6 Ed. 6 enacted that if any outlaw yielded himself to the chief justice, &c., within a year, he should be discharged of the outlawry, and entitled to a jury.

[122] Burn. Own Times, i. 580. “The king accompanied the gift with a piece of advice somewhat extraordinary from a king to a judge:—‘My lord, as it is a hot summer, and you are going the circuit, I desire you will not drink too much.’”

[123] Dangerfield had been a confederate of Oates as one of the false witnesses to the pretended Popish plot.—Ed.

[124] For the disputes between them, see ante, p. 228-240.

[125] Ante, p. 230.

[126] This rigorous sentence was rigorously executed. On the day on which Oates was pilloried in Palace Yard, he was mercilessly pelted, and ran some risk of being pulled in pieces; but in the city his partisans mustered in great force, raised a riot, and upset the pillory. They were, however, unable to rescue their favorite. It was supposed that he would try to escape the horrible doom which awaited him by swallowing poison. All that he ate and drank was therefore carefully inspected. On the following morning he was brought forth to undergo his first flogging. At an early hour an innumerable multitude filled all the streets from Aldgate to the Old Bailey. The hangman laid on the lash with such unusual severity as showed that he had received special instructions. The blood ran down in rivulets. For a time the criminal showed a strange constancy; but at last his stubborn fortitude gave way. His bellowings were frightful to hear. He swooned several times; but the scourge still continued to descend. When he was unbound, it seemed that he had borne as much as the human frame can bear without dissolution. James was entreated to remit the second flogging. His answer was short and clear. “He shall go through with it, if he has breath in his body.” An attempt was made to obtain the queen’s intercession, but she indignantly refused to say a word in favor of such a wretch. After an interval of only forty-eight hours, Oates was again brought out of his dungeon. He was unable to stand, and it was necessary to drag him to Tyburn on a sledge. He seemed quite insensible, and the tories reported that he had stupefied himself with strong drink. A person who counted the stripes on the second day said that they were seventeen hundred. The bad man escaped with life, but so narrowly that his ignorant and bigoted admirers thought his recovery miraculous, and appealed to it as a proof of his innocence. The doors of the prison closed upon him. During many months he remained ironed in the darkest hole of Newgate. It was said that in his cell he gave himself up to melancholy, and sat whole days uttering deep groans, his arms folded, and his hat pulled over his eyes. It was not in England alone that these events excited strong interest. Millions of Roman Catholics, who knew nothing of our institutions or of our factions, had heard that a persecution of singular barbarity had raged in our island against the professors of the true faith, that many pious men had suffered martyrdom, and that Titus Oates had been the chief murderer. There was, therefore, great joy in distant countries when it was known that the divine justice had overtaken him. Engravings of him, looking out from the pillory, and writhing at the cart’s tail, were circulated all over Europe; and epigrammatists, in many languages, made merry with the doctoral title which he pretended to have received from the university of Salamanca, and remarked that since his forehead could not be made to blush, it was but reasonable that his back should do so.

Horrible as were the sufferings of Oates, they did not equal his crimes. Nevertheless, the punishment which was inflicted upon him cannot be justified. In sentencing him to be stripped of his ecclesiastical habit and imprisoned for life, the judges seem to have exceeded their legal power. They were undoubtedly competent to inflict whipping, nor had the law assigned a limit to the number of stripes; but the spirit of the law clearly was that no misdemeanor should be punished more severely than the most atrocious felonies. The worst felon could only be hanged. The judges, as they believed, sentenced Oates to be scourged to death. That the law was defective, is not a sufficient excuse; for defective laws should be altered by the legislature, and not strained by the tribunals; and least of all should the law be strained for the purpose of inflicting torture and destroying life. That Oates was a bad man is not a sufficient excuse; for the guilty are almost always the first to suffer those hardships which are afterward used as precedents for oppressing the innocent. Thus it was in the present case. Merciless flogging soon became an ordinary punishment for political misdemeanors of no very aggravated kind. Men were sentenced for hasty words spoken against the government to pain so excruciating that they, with unfeigned earnestness, begged to be brought to trial on capital charges, and sent to the gallows. Happily, the progress of this great evil was speedily stopped by the revolution, and by that article of the Bill of Rights which condemns all cruel and unusual punishments.—Macaulay’s History of England.

[127] Fox’s Hist. James, ii. 96.

[128] Macaulay gives the following account of this trial:

“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 Nonconformist 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 long-winded 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.

“Witnesses to character were in attendance, and among them were several clergymen of the established church. But the chief justice would hear nothing. ‘Does your lordship think,’ said Baxter, ‘that any jury will convict a man on such a trial as this?’ ‘I warrant you, Mr. Baxter,’ said Jeffreys. ‘Don’t trouble yourself about that.’ Jeffreys was right. The sheriffs were the tools of the government. The jury, selected by the sheriffs from among the fiercest zealots of the Tory party, conferred for a moment, and returned a verdict of guilty. ‘My lord,’ said Baxter, as he left the court, ‘there was once a chief justice who would have treated me very differently.’ He alluded to his learned and virtuous friend, Sir Matthew Hale. ‘There is not an honest man in England,’ said Jeffreys, ‘but looks on thee as a knave.’”

[129] It is remarkable that the first common law judge, ever as such raised to the peerage, was this infamous Jeffreys. We speak of Lord Coke, Lord Hale, and so of the other chief justices, but they were lords simply by their surnames and by virtue of their office, and not peers.—Ed.

[130] Ante, p. 237, et seq.

[131] Bristol at this time was next to London in population, wealth, and commerce.—Ed.

[132] Macaulay states the number of the transported at eight hundred and forty-one, and of the hanged at three hundred and twenty.—Ed.

[133] He bought with it a large estate, the name of which the people changed to Aceldama, as being bought with innocent blood.—Ed.

[134] Perhaps this writer had in his eye the case of John Tutchin, a noted political writer, satirized by Pope, a mere boy at the time of the rebellion, and of whose case Macaulay gives the following account: “A still more frightful sentence was passed on a lad named Tutchin, who was tried for seditious words. He was, as usual, interrupted in his defence by ribaldry and scurrility from the judgment seat. ‘You are a rebel; and all your family have been rebels since Adam. They tell me that you are a poet. I’ll cap verses with you.’ The sentence was, that the boy should be imprisoned seven years, and should, during that period, be flogged through every market town in Dorsetshire every year. The women in the galleries burst into tears. The clerk of the arraigns stood up in great disorder. ‘My lord,’ said he, ‘the prisoner is very young. There are many market towns in our county. The sentence amounts to whipping once a fortnight for seven years.’ ‘If he is a young man,’ said Jeffreys, ‘he is an old rogue. Ladies, you do not know the villain as well as I do. The punishment is not half bad enough for him. All the interest in England shall not alter it.’ Tutchin, in his despair, petitioned, and probably with sincerity, that he might be hanged. Fortunately for him, he was, just at this conjuncture, taken ill of the small pox, and given over. As it seemed highly improbable that the sentence would ever be executed, the chief justice consented to remit it in return for a bribe which reduced the prisoner to poverty. The temper of Tutchin, not originally very mild, was exasperated to madness by what he had undergone. He lived to be known as one of the most acrimonious and pertinacious enemies of the house of Stuart and of the Tory party.”—Ed.

[135] Ante, p. 000.

[136] One of the strongest testimonies against James is his own letter to the Prince of Orange, dated Sept. 24, 1685, in which, after giving him a long account of his fox-hunting, he says, “As for news, there is little stirring, but that the lord chief justice has almost done his campaign. He has already condemned several hundreds, some of which are already executed, some are to be, and the others sent to the plantations.”—Dalrymple’s App. part ii. 165. The only public man who showed any bowels of compassion amidst these horrors was Lord Sunderland. Whig party writers are at great pains to exculpate Pollexfen, the great Whig lawyer, who conducted all these prosecutions as counsel for the crown; but I think he comes in for no small share of the infamy then incurred, and he must be considered as principal aide de camp to Jeffreys in the western campaign. He ought to have told the jury that there was no case against the Lady Lisle, and when a few examples had been made, he ought to have stopped the prosecutions, or have thrown up his briefs.

[137] I hope I have not been prejudiced in my estimate of James’s character by the consideration that when acting as regent in Scotland he issued an order (afterwards recalled) for the utter suppression of the name of Campbell, “which,” says Mackintosh, “would have amounted to a proscription of several noblemen, a considerable body of gentry, and the most numerous and powerful tribe in the kingdom.”

[138] This “dispensing power” claimed by Jeffreys and the English judges for James II. was but a trifle compared to the “dispensing power” recently claimed by some of our American lawyers and judges for acts of Congress. All that was claimed for James was, power to dispense with acts of Parliament, while our American improvers upon this doctrine go so far as to claim for Congress a power to dispense with and supersede the laws of God.—Ed.

[139] Whether diplomatic intercourse with the pope is now forbidden, depends upon the construction to be put upon the words, “shall hold communion with the see or church of Rome” in the Bill of Rights. This seems to refer to spiritual communion only, or the queen would hold communion with the successor of Mahomet by appointing an ambassador to the sublime porte.

[140] The strong analogy between these ecclesiastical commissioners and our recent American slave catching commissioners, both in powers, method of procedure, and object arrived at, has been already referred to, and can hardly fail to strike the reader.—Ed.

[141] Judge Kane, in Passmore Williamson’s case, went further than that. Because he refused to obey the mandate of Judge Kane to produce in his court certain persons over whom he had no control, with a view to their surrender to slavery, Judge Kane, under the name of a contempt, sentenced him to an indefinite imprisonment.—Ed.

[142] When a peer is tried in Parliament before the House of Lords, the lord high steward votes like the rest of the peers, who have all a right to be present; but if the trial be out of Parliament, the lord high steward is only the judge to give direction in point of law, and the verdict is by the lords triers specially summoned.

[143] In James’s memoirs, all the blame of this prosecution is thrown upon Jeffreys; but it is more probable that he only recklessly supported his master.

[144] The arrangement of counsel in this celebrated case was very whimsical. The bishops were defended by Pemberton, the ex-chief justice, who had presided at several of the late state trials, by Levinz, Sawyer, and Finch, who had conducted them very oppressively for the crown, and by Pollexfen, Treby, and Somers, considered steady Whigs.

[145] It was pretended by the anti-Jacobites, that is, the enemies of James and the exiled Stuarts, that the infant had been smuggled into the queen’s bed in a warming-pan.—Ed.

[146] 24th November, 1688. 2 Vernon, 88, Searle v. Lane. By a reference to the minute books in the registrar’s office, it appears that Jeffreys sat again on Monday, Nov. 26, when he decided Duval v. Edwards, a case on exceptions, nine in number, giving a separate judgment on each. He did not sit on the 27th, but he did on the 28th, which was the last day of term. So late as the 8th of December he sat and heard several petitions. In the evening of this day the great seal was taken from him.

[147] “Bottomry bond.” This contraction shows the etymology of an elegant English word from “bottom,” which Dr. Johnson chooses to derive from the Dutch word “bomme.”

[148] i. e. The principal being put in hazard, the interest was not usurious.

[149] The following is from Macaulay’s elaborate portraiture of Jeffreys on the bench: “All tenderness for the feelings of others, all self-respect, all sense of the becoming, were obliterated from his mind. He acquired a boundless command of the rhetoric in which the vulgar express hatred and contempt. The profusion of maledictions and vituperative epithets which composed his vocabulary could hardly have been rivalled in the fish-market or the bear-garden. His countenance and his voice must always have been unamiable; but these natural advantages—for such he seems to have thought them—he had improved to such a degree that there were few who, in his paroxysms of rage, could see or hear him without emotion. Impudence and ferocity sat upon his brow. The glare of his eyes had a fascination for the unhappy victim on whom they were fixed; yet his brow and eye were said to be less terrible than the savage lines of his mouth. His yell of fury, as was said by one who had often heard it, sounded like the thunder of the judgment day.”

[150] Down to this time trials at nisi prius had not assumed their present shape. The issue being read to the jury, the evidence was given, and with hardly any speeches from counsel, all seems to have been left to the judge.

[151] 10 State Trials, 267.

[152] The plan was formed of ruling by a standing army. But without a Parliament, how was this army to be kept in a proper state of discipline? In time of war, or during a rebellion, troops in the field were subject to martial law, and they might be punished, by sentence of a court martial, for mutiny or desertion. But the country was now in a state of peace and profound tranquillity; and the common law, which alone prevailed, knew no distinction between citizen and soldier; so that, if a lifeguardsman deserted, he could only be sued for breach of contract, and if he struck his officer, he was only liable to an indictment or an action of battery. While the king’s military force consisted of a few regiments of household troops, with high pay, desertion was not to be apprehended, and military offences were sufficiently punished by dismission from the service. But James found it impossible to govern the numerous army which he had collected at Hounslow without the assistance of martial law; and he contended that, without any act of Parliament, he was at all times entitled, by virtue of his prerogative, to put martial law in force against military men, although it could only be put in force against civilians when war or rebellion was raging in the kingdom.

The question first arose at the Old Bailey, before Sir John Holt, then recorder of London, and he decided against the crown, as might have been expected; for, while avoiding keen partisanship in politics, he had been always Whiggishly inclined. James thought he was quite secure by appealing to the ultra Tory, Lord Chief Justice Herbert. To the utter amazement of the king and the courtiers, this honorable, although shallow, magistrate declared that, without an act of Parliament, all laws were equally applicable to all his majesty’s subjects, whether wearing red coats or gray. Being taunted with inconsistency in respect of his judgment in favor of the dispensing power, he took this distinction, “that a statute altering the common law might be suspended by the king, who is really the lawgiver, notwithstanding the form that he enacts ‘with the assent of the lords spiritual and temporal, and Commons;’ but that the common law cannot be altered by the king’s sole authority, and that the king can do nothing contrary to the common law, as that must be considered coeval with the monarchy.”

James, with the infatuated obstinacy which was now driving him to destruction, set this opinion at defiance; and, encouraged by Jeffreys, caused a soldier to be capitally prosecuted, at the Reading assizes, for deserting his colors. The judges who presided there resorted to some obsolete, inapplicable act of Parliament, and were weak enough to lay down the law in the manner suggested to them by the chancellor, so that a conviction was obtained. To give greater solemnity and eclat to the execution, the attorney general moved the Court of King’s Bench for an order that it might take place at Plymouth, in sight of the garrison from which the prisoner had run away. But Herbert peremptorily declared that the court had no jurisdiction to make such an order, and prevailed on his brother Wythens to join with him in this opinion. Mr. Attorney took nothing by his motion, but the recreant chief justice and the recreant puisne were both next morning dismissed from their offices, to make way for the most sordid wretches to be picked up in Westminster Hall—Sir Robert Wright and Sir Richard Allibone, a professed Papist.

[153] The two clergymen who were most applauded on this occasion were the bold one, who, refusing to obey the royal mandate, took for his text “Be it known unto thee, O king, that we will not serve thy gods, nor worship the golden image which thou hast set up;” and the humorous one, who, having said, “My brethren, I am obliged to read this declaration, but you are not obliged to listen to it,” waited till they were all gone, clerk and all, before the reading of the declaration began.

[154] More than one American advocate for treating the fugitive slave act as a law, and submitting to it as such, till repealed, has preached precisely this doctrine.—Ed.

[155] 12 State Trials, 183-523.

[156] It was supposed that he was jealous of Williams, the solicitor general, who had been promised by James the highest offices of the law if he could convict the bishops. This may account for a sarcasm he levelled at his rival during the trial. Williams, having accounted for a particular vote of the House of Commons in the reign of James II., when he himself was a member and suspected of bribery, said “there was a lump of money in the case.” Wright, in referring to this, observed, “Mr. Solicitor tells you the reason, ‘there was a lump of money in the case;’ but I wonder, indeed, to hear it come from him.” Williams, understanding the insinuation, exclaimed, “My lord, I assure you I never gave my vote for money in my life.”

[157] A similar and alarming reaction towards despotism has exhibited itself in America since the passage of the fugitive slave act of 1850, in the combination of so many distinguished jurists and divines to denounce the doctrine of a “higher law,” and to advocate the “divine right” of Congress to make enactments according to its own pleasure and judgment, which enactments are to take precedence as rules of conduct of the individual conscience, which it is attempted to silence by stigmatizing it as a prejudice. Not only does there seem reason to dread that we may soon be under legislators and an executive who, believing in the divine right of those in authority, will not only applaud but act upon the principles of arbitrary government, we lately have been and still are, so far as the federal executive and the federal Senate are concerned, under precisely such ministers and legislators; and having lately had some such experience of the practical results of such principles in the administration of justice, what more natural than to compare our sufferings with those of our British forefathers, and to seek to learn from their experience the natural cure for such evils?—Ed.

[158] Jane Johnson’s suggestions, on the ground that she was a stranger to the proceeding, were allowed no weight towards the liberation of Williamson, and were refused admittance on the files of the court. At the same time, the suggestions of Mr. Cadwallader, another stranger, were eagerly clutched at and put upon the record, with a view to better the position of Judge Kane.

[159] The account of the final proceedings is from the Philadelphia Evening Bulletin.

Transcriber’s Note:

Footnote 39 appears on page 96 of the text, but there is no corresponding marker on the page.

Mismatched quotation marks in the original were not corrected.