FOOTNOTES
[1] 2 Parker's Additional Speeches, 178-283.
[2] The charge is printed below, at [page 170].
[3] See Law Reporter for June, 1855.
[4] See this statement in Mr. Parker's Additional Speeches, Addresses, and Occasional Sermons. Boston, 1855, vol. ii. p. 250, et seq.
[5] 2 Campbell, 372, 374.
[6] 2 Campbell, 368, 374; 3 Howell State Trials, 824.
[7] Speache in the Starre-Chamber, London, 1616.
[8] Ludlow, quoted in 2 Campbell, 470.
[9] 4 Parl. Hist. 162.
[10] 3 Campbell, 394.
[11] 2 Campbell Chief Justices, 86.
[12] 3 Campbell, 473.
[13] 3 Hallam, 142.
[14] 8 St. Tr. 195, note.
[15] Account of him in Preface to his Reports, (1675); 3 St. Tr. 162, 293, 844, 1181; 2 Parl. Hist. 869; 1 Rushworth, 661, et al.; Whitlocke, 14, et al.
[16] 6 St. Tr. 634; 1 Campbell Justices, 442.
[17] 6 St. Tr. 161.
[18] 1 Campbell Justices, 401.
[19] 16 Parl. Hist. 1291, 1292, 1293.
[20] 5 Campbell, 398.
[21] 5 Campbell, 410.
[22] 17 Parl. Hist. 1313.
[23] 18 St. Tr. 999.
[24] Peirce's Vindication, (1717,) 174.
[25] 2 St. Tr. 869; 16 Montagu's Bacon, clxvi.; 2 Campbell, 291.
[26] 2 St. Tr. 879.
[27] 3 St. Tr. 769; 2 Campbell, 400.
[28] 3 St. Tr. 373; Franklyn, 361; 2 Hallam (Paris, 1841), 6 ac etiam 13; 2 Mrs. Macaulay, 16, 45, 65.
[29] 3 St. Tr. 293; 1 Rushworth; 2 Hallam, 2; 2 Parl. Hist. 488, 504; Foster's Eliot, 100; 2 Mrs. Macaulay, ch. i. ii.
[30] 3 St. Tr. 383; Laud's Diary, 4th November; 2 Hallam, 28.
[31] 3 St. Tr. 561; 2 Hallam, 28, and his authorities. See also 2 Echard, 109, et seq., 124, et seq., 202, 368, 510; the remarks of Hume, Hist. ch. lii., remind me of the tone of the fugitive slave bill Journals of Boston in 1850-54.
[32] 1 Macaulay, (Harper's Ed.) 456-8.
[33] 1 Macaulay, 456; 11 St. Tr. 493.
[34] 2 Campbell's Justices, 87.
[35] See 2 Brewster's Newton, 108.
[36] 12 St. Tr. 239.
[37] 12 St. Tr. 427, 428, 429.
[38] 12 St. Tr. 281.
[39] 12 St. Tr. 415, 416, 417.
[40] See 2 Campbell's Justices, 95.
[41] 20 St. Tr. 780-783.
[42] 20 St. Tr. 651; 5 Campbell, 415.
[43] Statesmen, 2 Series, 109.
[44] 5 Campbell, 460; 27 Parl. Hist. 638.
[45] 1 Campbell's Justices, 404-5; Kelyng's Reports, 70.
[46] 6 St. Tr. 879, note 911.
[47] Kelyng's Reports, 12.
[48] Ibid. 22.
[49] Kelyng's Reports, 13.
[50] See his Defence of Hardy, 24 St. Tr. 877.
[51] See 2 St. Tr. 774, note.
[52] 1 Jardine, Crim. Tr. 16.
[53] 2 St. Tr. 871.
[54] 1 Jardine, 19.
[55] Ibid.
[56] 3 St. Tr. 371. See 30 St. Tr. 892.
[57] 1 Jardine, 20. See Emlyn, Preface to St. Tr. in 1 Hargrave, p. iii.
[58] 30 St. Tr. 225.
[59] See case of Huggins in 17 St. Tr. 297, 309.
[60] 1 Hargrave's St. Tr. 6.
[61] 2 St. Tr. 371, and 11 Hargrave, 29; 1 Campbell's Justices, 204.
[62] 1 Hallam, 231. See 1 Parl. Hist. 1030, 1132, 1150; Baker's Chronicle, 430.
[63] 2 St. Tr. 899; 1 Hallam, 251; 2 Campbell, 291.
[64] 1 Parl. Hist. 1156.
[65] 3 St. Tr. 1. See also 2 Parl. Hist. 288; 1 Rushworth and 1 Mrs. Macaulay, 341.
[66] 1 Campbell, Justices, 311; 2 Parl. Hist. 245, 350, 373, 408, et al.; 3 St. Tr. 59.
[68] 1 Campbell's Justices, 315.
[69] 3 St. Tr. 825. See the opinion of the Judges with their twelve names, 844, and note †.
[70] Whitelocke, Memor. 25.
[71] 2 Hallam, 16.
[72] 2 Hallam, 18.
[73] Cited in Franklyn, 208; 1 Rushworth, 422, 436, 444.
[74] Franklyn, 208, 592. These two Sermons were published in a volume with the title "Religion and Allegiance."... "Published by his Majesty's special command." (London, 1628.) Prof. Stuart seems inspired by this title in giving a name to his remarkable publication—written with the same spirit as Dr. Mainwaring's—"Conscience and the Constitution." (Andover, 1851.) See 3 St. Tr. 335; 1 Rushworth, 422, 436, 585, et al.; 1 Hallam, 307; 2 Parl. Hist. 388, 410.
[75] 2 Campbell, 460; 1 Rushworth, 1205.
[76] Carroll's Counter Revolution (Lond. 1846), 99, et seq.
[77] 8 St. Tr. 1038, and the quotations from North (Examen.) Sprat, and Roger Coke, in note on p. 1041, et seq. See, too, Fox, James II. p. 48, 54, and Appendix, Barillon's Letter of Dec. 7th, 1684.
[78] 2 Hallam, 333; Burnet, Own Times (London, 1838), 350; 8 St. Tr. 1039, 1081 note, 1267, et seq.; 2 Campbell, Justices, 63; North's Examen. 626; Fox, 54.
[79] 11 St. Tr. 1165; 12 Ibid. 358.
[80] This last name is thought to be extinct in Great Britain, but I find one Thomas Scruggs in Massachusetts in 1635 et post, 1 Mass. Records (1628-1641), index.
[81] 1 St. Tr. 252.
[82] 1 St. Tr. 1271; 1 Neal's Puritans (N.Y. 1844), 190. See 16 Parl. Hist. 1276, where Mr. Dunning says this is the first example of such a charge to a jury.
[83] 2 St. Tr. 1085.
[84] 7 St. Tr. 687.
[85] 6 St. Tr. 701; see Dunning in 16 Parl. Hist. 1276, et seq.
[86] 7 St. Tr. 701.
[87] In 2 Collectanea Juridica, 228.
[88] 7 St. Tr. 925.
[89] 7 St. Tr. 1111, 959; 4 Parl. Hist. 1274.
[90] 7 St. Tr. 1333.
[91] 7 St. Tr. 1127.
[92] 17 St. Tr. 674; 5 Campbell, 57; Hildreth's Despotism, 199.
[93] 20 St. Tr. 900. But see 28 St. Tr. 595, and 16 Parl. Hist. 1211.
[94] For the frequency of trials for words spoken in Charles II.'s reign of terror, see the extracts from Narcissus Luttrel's Brief Historical Relation, 10 St. Tr. 125.
[95] 1 Rushworth, 502.
[96] 2 Parl. Hist. 232. See also 441, 471. He had been thrown into the Tower by James in 1624. Cabbala (3d Ed.), 311.
[97] Parl. Hist. 867.
[98] 1 Rushworth, 502.
[99] See the steps of the process in 1 Hutchinson, (Salem, 1795,) 297; 8 St. Tr. 1068, note.
[100] Barillon to Louis XIV. in Fox's Appendix, p. vii., et seq. In 1685 Halifax, who had been friendly to the rights of the colonies, was dismissed from his office; Sunderland, their enemy, had a pension from Louis XIV. of £5,000 or £6,000 a year; p. cxxvii., cxxx. et seq., cxliii., cxlviii. Not the last instance of a high functionary pensioned by a foreign hand!
[101] 1 Hutch. 316; 2 Hildreth, Hist. 108; 2 Bancroft, 425; Washburn, Judicial Hist. of Mass. 105; Drake's Boston, ch. L.
[102] 1 Felt's Salem, 24; 2 Ib. 542; Felt's Ipswich, 123, et seq.; Gage's Rowley, 157, et seq.; Sullivan's Land Titles, 54.
[103] Hutch. 327; Washburn, ibid.
[104] 5 Bancroft, 358.
[105] 6 Bancroft, 213.
[106] 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, et al.
[107] 6 Bancroft, 250, 251, 291; Sabine's Loyalists, 207, et al.
[108] 16 Parl. Hist. 168, 195, 658.
[109] Debates in New York Convention, 371, et al.
[110] Jordan's Speech, ibid., 447, et al. See also Mr. Stow's Remarks, 473, and Mr. Stephens', 474, et al. Yet all these four speakers were lawyers.
[111] Hildreth's Despotism in America (1854), 263, et al.
[112] By this term I mean all the nations with language akin to the German.
[113] In this brief sketch I do not refer to the authorities, but see, who will, the classic passages and proof-texts in the well-known works of Grimm, Rogge, Biener, Michelsen, Möser, Phillips, Eichhorn, Maurer, and others.
[114] See other forms of Oath in 8 St. Tr. 759, 772.
[115] The above extracts are from Judge Woodbury's charge to the Grand-Jury, in Circuit Court of United States, at Boston, taken from the Evening Traveller, copying the reprint of Boston Daily Advertiser, of October 25, 1850.
[116] Words of Chief Justice Parker, in Commonwealth vs. Griffith, 2 Pickering's Reports, 19, cited with approbation by Chief Justice Shaw, in the Sims case, 7 Cushing's Reports, 705, and also cited from him and acted on by fugitive slave bill Commissioner Loring, in the Burns case.
[117] See Boston Daily Advertiser of March 19, 1851.
[118] See above, p. [33], [37], et al.
[119] See 1 Jardine, Criminal Trials, 110. 2 Parker's Sermons, 266 and note.
[120] See Hon. Judge Curtis's Speech at the Union Meeting in Faneuil Hall, November 26, 1850.
[121] See the case in 1 St. Tr. 869, and 1 Jardine, 40, also 115. The great juridical attacks upon English Liberty were directed against the Person of the Subject, and appear in the trials for Treason, but as in such trials the defendant had no counsel, the great legal battle for English Liberty was fought over the less important cases where only property was directly concerned. Hence the chief questions seem only to relate to money.
[122] 6 St. Tr. 951; Dixon's Life of Penn; 22 St. Tr. 925.
[123] 8 St. Tr. 759, see the valuable matter in the notes, also 2 Hallam, 330 and notes.
[125] 12 St. Tr. 430.
[126] Burnet's Own Times, 470. See also 2 Campbell, Justices, 89, et seq.
[127] 18 St. Tr. 1203; 14 Parl. Hist. 888, 1063; 3 Hallam, 200; 2 Campbell, Justices, 198.
[128] 20 St. Tr. 803, 895, 869; Woodfall's Junius (Bohn, 1850), Preface, p. 94, Appendix, p. 471; 2 Campbell, Justices, 363; 5 Mahon.
[129] 22 St. Tr. 923.
[130] 2 St. Tr. 1793.
[131] 22 St. Tr. 523.—So late as 1820, the chief justice punished an editor with a fine of £500, for publishing an account of a trial for high treason. See 33 St. Tr. 1564, also 22 St. Tr. 298; 2 Campbell, Justices, 363, 371 et al.
[132] 22 St. Tr. 471.
[133] Ibid. 823.
[134] Ib. 909.
[135] Ibid. 471. Wade, Brit. Hist. (1847), 582, et seq.
[136] 23 St. Tr. 237; Belsham's History of George III.
[137] 23 St. Tr. 117; 30 Parl. Hist. 1486, for Adams' Speech in Commons.
[138] 30 Parl. Hist. 581; 31 Parl. Hist. 520, 929, 1153, et al.; 32 Parl. Hist. 370.
[139] 7 Campbell, 119; 1 Townsend's Judges; Life of Vic. Gibbs.
[140] 6 Campbell, 366.
[141] 34 George III. c. 54.
[142] 24 St. Tr. 199; Annual Register, 1794, p. 274; 31 Parl. Hist. 1062, et al.
[143] 24 St. Tr.
[145] 25 St. Tr. 1.
[146] 5 Campbell, 367.
[147] 3 Doc. Hist. N.Y. p. 340, 341.
[148] 17 St. Tr. 675.
[149] See the case in Kelyng's Reports (London, 1708), p. 52. The opinion of Justice Jones was only the charge of an inferior judge given to the grand-jury in 1634.
[150] 13 Mass. Rep. 356.
[151] 2 Campbell, Judges, 406.
[152] Wharton, State Trials, 653. See too Virginia Resolutions (Richmond, 1850), Preface, xiii. et seq.; Virginia Resolutions by Madison, and his Report thereon; Kentucky Resolutions by Jefferson, in 4 Eliot's Debates (1836).
[153] Wharton, 197; 3 Dallas, 384; see 5 Hildreth, 230.
[154] See a defence of them in 2 Gibbs's Administration, 74, 78; also 162.
[155] Wharton, 539; Kelyng, R. 70, 75.
[156] 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419.
[157] Wheaton, 458; 9 Adams's Works, 57; 2 Gibbs, 360; 5 Hildreth, 366; Chase's Trial, 18.
[158] Wharton, 333; 4 Jefferson's Works (1853), 262.
[159] Wharton, 659.
[160] Wharton, 45, 688; Chase's Trial, 33; 4 Jefferson, 445, 447.
[161] 4 Jefferson, Correspondence in Wharton, 721.
[162] 2 Sess. 26th, Cong. Doc. 86, Ho. Rep.; Wharton, 344, 679. See also Virginia Resolutions (1850), and the remarks in the Debates. Then Virginia was faithful to State Rights, and did a service to the cause of Liberty which no subsequent misconduct should make us forget.
[163] 2 Einleitung in die Geschichte des neunzehnten Jahrhunderts; Leipzig, 1853. 8vo. pp. 181.
[164] See Preface to English Translation of Gervinus (London, 1853); and Allg. Lit. Zeitung für 1853, pp. 867, 883, 931, 946, 994, 1131.
[165] 16 Examiner, 321; 17 ibid. 127; Boston Atlas, July 8th and 9th, 1834.
[166] See several cases of this kind in Sullivan on Abolition of Punishment of Death, (N.Y. 1841), 73. Rantoul's Works, 459.
[167] Forsyth, 241, 243.
[168] Thomas Smith, Commonwealth, (London, 1589,) b. iii. c. 1. Hargrave, in 6 St. Tr. 1019.
[169] See above, [p. 95]. 1 St. Tr. 901; 6 St. Tr. 967, 969, 999; 21 St. Tr. 925.
[170] 1 St. Tr. 445.
[171] 6 St. Tr. 967, note; Bushell's Case, Ibid. 999, and Hargrave's note, 1013.
[172] 2 Campbell, Justices, 405; 6 St. Tr. 910; Kelyng, 50; 3 Hallam, 6, note; Commons Journals, 16 Oct. 1667.
[173] 4 Parl. Hist. 1224.
[174] 16 Peters, 616.
[175] 20 Anti-Slavery Report, 28 and 21; Ibid. 34.
[176] History of the Trial of Castner Hanway and others for Treason (Philadelphia, 1852), 35.
[177] 20 Anti-Slavery Report, pp. 30, 31.
[178] History, 55, 57; Report, 19; 2 Wallace.
[179] 16 Peters, Prigg v. Penn.
[180] See Report of Trial of Castner Hanway, Phil. 1852.
[181] The learned counsel for the fugitive slave bill confounds two events. The Stamp Act was passed March 22d, 1765, and repealed the 28th of the next March. The tea was destroyed December 16th, 1773.
[182] Report in Boston Courier of November 27th, 1850.
[183] The learned counsel for the slaveholders probably referred to Eph. vi. 5; or Coloss. iii. 22; or Tit. ii. 9; or 1 Pet. ii. 18.
[184] Daily Advertiser, Dec. 7th, 1832. Mr. Sewall, the early and indefatigable friend of the slave, asked the Court to appoint a guardian ad litem for the child, who was not 14, who should see that he was not enslaved. But the slaveholder's counsel objected, and the Judge (Shaw) refused; yet to his honor be it said in a similar case in 1841, when Mr. Sewall was counsel for a slave child under the same circumstances, he delivered him to a guardian appointed by the Probate Court. 3 Metcalf, 72.
[185] Med. Case, 1836.
[186] On this see Hildreth's Despotism, 262, 280. Commissioner Loring considers that the fugitive slave bill commissioners have "judicial duties." Remonstrance to General Court, 2.
[187] See Mr. Curtis's letter in Daily Advertiser of February 7, 1855.
[188] See above, p. [148], [149].
[189] See the speech in Boston Courier of November 27th, with the editorial comment, and in Daily Advertiser of 28th, Thanksgiving Day. See also the Atlas of November 27th. The Sermon is in 2 Parker's Speeches, 241.
[190] See Boston Journal of May 29, and Boston Courier of June 7, 1854.
[191] New York Tribune, January 15, 1855.
[192] Daily Advertiser, February 7, 1855.
[193] Law Reporter, August, 1854.
[194] 2 Parker's Additional, 280.
[196] Page 52. See above, [p. 112].
[197] Jones's "opinion" relates to a case of murder by the advice of an absent person, not at all to suicide by the advice of another, so it could not apply to the case of Bowen.
[198] 2 Campbell's Justices, 406.
[200] Parl. Hist. 290; 3 St. Tr. 844, 1181, 162; 2 Echard, 186.
[201] See above, p. [23], [39], [113], [125]; 1 Campbell, Ibid. 406; 6 St. Tr. 76, 229, 171, 532, 769, 879, 992; Pepys' Diary, 17 Oct., 1667; Commons Journal, 16th Oct., 1667.
[202] 1 Wharton, 636; Kelyng, 1-24, 70-77; 6 St. Tr. 879.
[203] 2 Parker's Additional, p. 281.
[204] Evening Traveller, Oct. 16.
[205] Quincy's Quincy, 68.
[206] Gazette, Feb. 10, 1772.
[207] 2 Singer's Shakspeare, 192.
[208] 2 Occasional Speeches, 164, 165, and 172.
[209] Ibid., 207, 208.
[210] 2 Occasional Sermons, 239, 240.
[211] 2 Occasional Sermons, 256, 257, 258.
[213] 1 Parker's Additional Speeches, 55.
[214] 2 Parker's Occasional Sermons, pp. 298-300, 301, 302, 304, 305.
[215] 2 Parker's Occasional Sermons, p. 334-337, 343-348, 351, 352.
[216] 2 Parker's Occasional Sermons, p. 392-394.
[217] 1 Parker's Additional Speeches, p. 50, 70, 88, 89, 92, 93, 100, 101.
[218] 1 Parker's Additional Speeches, 235-37, 246-47.
[219] 1 Parker's Additional Speeches, p. 351, 352, 357-359, 368, 369.
[220] Med Case, p. 9, 11.
[221] 2 Parker's Additional, 74, 75, 81, 83.
[222] Parker's Additional, 167, 168, 169, 170, 171, 172.
[223] See the communications of Messrs. Chas. P. Curtis and Thomas B. Curtis, in the Boston Daily Advertiser of June, 1854; and the other articles setting forth the facts of the case.
[224] Med Case, p. 25.
[225] Art. iv. § 2, ¶ 2.
[226] In 2 Kennett, 753.