(II.) The next step is by means of such Judges to punish and destroy or silence men who oppose the wickedness of the party in power, and the encroachments of despotism. Let me describe the general mode of procedure, and then illustrate it by special examples.
1. In the Privy Council, or elsewhere, it is resolved to punish the obnoxious men,—and the business is intrusted to the law-officers of the crown, appointed for such functions.
2. They consult and agree to pervert and twist the law—statute or common—for that purpose. By this means they gratify their master, and prepare future advancement for themselves.
3. The precedent thus established becomes the basis for new operations in the future, and may be twisted and perverted to serve other cases as they occur.
Now, Gentlemen, look at some examples taken from British history, in times of the same Kings mentioned before.
1. In 1610 two Puritans for refusing the ex officio oath, were clapped in Jail by the commissioners. They were brought on habeas corpus before a court, and Mr. Fuller, their counsel, a learned lawyer, insisted that they were imprisoned without due process of law. For this "contempt of court" he was thrown into jail by Archbishop Bancroft, whence he was rescued only by death.[24]
2. In 1613 there were many murmurs among the People of England at the tyranny of James. Fine and imprisonment did not quell the disturbance; so a more dreadful example was thought needful. The officials of Government broke into the study of Rev. Edmund Peacham, a Protestant minister, sixty or seventy years old. In an uncovered cask they found a manuscript sermon, never preached, nor designed for the pulpit or the press, never shown to any one. It contained some passages which might excite men to resist tyranny. He was arrested, and thrown into Jail, all his papers seized. The Government resolved to prosecute him for high treason. Francis Bacon, the powerful and corrupt Attorney-General, managed the prosecution. Before trial was ventured upon, he procured an extrajudicial opinion of the Judges appointed for such services,—irregularly given, out of court, that they would declare such an act high treason.
But a manuscript sermon, neither preached nor designed for the public, was hardly evidence enough of treason even for such Judges—so purchased, for such an Attorney—so greedy of preferment, with such a Cabinet and such a King. For all those, like the Pharisees of old, "feared the People." So their victim was tortured on the rack, and twelve leading questions prepared by the Government officials, were put to him there. I quote Secretary Winwood's record—still extant in his own handwriting—"He was this day examined before torture, in torture, between torture, and after torture; notwithstanding nothing could be drawn from him, he still persisting in his obstinate and insensible denials and former answers." Bacon was present at the torture, which took place in the Tower, Jan. 19, 1614, O.S. (30th Jan. 1615, N.S.). In August he was tried for high treason—"compassing and imagining the King's death"—before a packed jury; against law, and without legal evidence. He was of course found guilty under the ruling of the Court! But public opinion, even then making tyrants "tremble in their capitals," was so indignant at the outrage that the execution was not ventured on, and he was left to languish in Jail, till on the 27th of March, 1616, a King more merciful took the old minister where the wicked cease from troubling.[25]
In this case, Gentlemen of the Jury, you will notice three violations of the law.
(1.) The opinion of the Judges before the trial was extrajudicial and illegal.