"It appears that the French have offered premiums to encourage the African [slave] trade, and that they have succeeded. The natural presumption therefore is, that we ought to do the same. For my part, my Lords, I have no scruple to say that if the 'five days' fit of philanthropy' [the attempt to abolish the slave-trade] which has just sprung up, and which has slept for twenty years together, were allowed to sleep one summer longer, it would appear to me rather more wise than thus to take up a subject piecemeal, which it has been publicly declared ought not to be agitated at all till next session of Parliament. Perhaps, by such imprudence, the slaves themselves may be prompted by their own authority, to proceed at once to a 'total and immediate abolition of the trade.' One witness has come to your Lordship's bar with a face of woe—his eyes full of tears, and his countenance fraught with horror, and said, 'My Lords, I am ruined if you pass this bill! I have risked £30,000 on the trade this year! It is all I have been able to gain by my industry, and if I lose it I must go to the hospital!' I desire of you to think of such things, my Lords, in your humane phrensy, and to show some humanity to the whites as well as to the negroes."[44]
One measure of tyranny in the hands of such Judges is Constructive Crime, a crime which the revengeful, or the purchased judge distils out of an honest or a doubtful deed, in the alembic he has made out of the law broken up and recast by him for that purpose, twisted, drawn out, and coiled up in serpentine and labyrinthine folds. For as the sweet juices of the grape, the peach, the apple, pear, or plumb may be fermented, and then distilled into the most deadly intoxicating draught to madden man and infuriate woman, so by the sophistry of a State's Attorney and a Court Judge, well trained for this work, out of innocent actions, and honest, manly speech, the most ghastly crimes can be extorted, and then the "leprous distilment" be poured upon the innocent victim,
|
"And a most instant tetter barks about, Most lazar-like, with vile and loathsome crust, All his smooth body!" |
Here is an example. In 1668 some London apprentices committed a riot by pulling down some houses of ill-fame in Moorfields, which had become a nuisance to the neighborhood; they shouted "Down with Bawdy Houses." Judge Kelyng had them indicted for High Treason. He said it was "an accroachment of royal authority." It was "levying war." He thus laid down the law. "The prisoners are indicted for levying war against the King. By levying war is not only meant when a body is gathered together as an army, but if a company of people will go about any public reformation, this is high treason. These people do pretend their design was against brothels; now let men to go about to pull down brothels, with a captain [an apprentice "walked about with a green apron on a pole">[ and an ensign and weapons,—if this thing be endured, who is safe? It is high treason because it doth betray the peace of the nation, and every subject is as much wronged as the King; for if every man may reform what he will, no man is safe; therefore the thing is of desperate consequence, and we must make this for a public example. There is reason why we should be very cautious; we are but recently delivered from rebellion [Charles I. had been executed nineteen years before, and his son had been in peaceable possession of the throne for eight years], and we know that that rebellion first began under the pretence of religion and the law; for the Devil hath always this vizard upon it. We have great reason to be very wary that we fall not again into the same error. Apprentices for the future shall not go on in this manner. It proved that Beasly went as their captain with his sword, and flourished it over his head [this was the "weapons,">[ and that Messenger walked about Moorfields with a green apron on the top of a pole [this was the "ensign">[. What was done by one, was done by all; in high treason all concerned are principals."[45]
Thereupon thirteen apprentices who had been concerned in a riot were found guilty of high treason, sentenced, and four hanged. All of the eleven Judges—Twysden was one of them—concurred in the sentence, except Sir Matthew Hale. He declared there was no treason committed; there was "but an unruly company of apprentices."[46]
This same Judge Kelyng, singularly thick-headed and ridiculous, loved to construct crimes where the law made none. Thus he declares, "in cases of high treason, if any one do any thing by which he showeth his liking and approbation to the Traitorous Design, this is in him High Treason. For all are Principals in High Treason, who contribute towards it by Action or Approbation."[47] He held it was an overt act of treason to print a "treasonable proposition," such as this, "The execution of Judgment and Justice is as well the people's as the magistrates' duty, and if the magistrates pervert Judgment, the people are bound by the law of God to execute judgment without them and upon them."[48] So the printer of the book, containing the "treasonable proposition," was executed. A man, by name Axtell, who commanded the guards which attended at the trial and execution of Charles I., was brought to trial for treason. He contended that he acted as a soldier by the command of his superior officer, whom he must obey, or die. But it was resolved that "that was no excuse, for his superior was a Traitor and all that joined with him in that act were Traitors, and did by that approve the Treason, and when the command is Traitorous, then the Obedience to that Command is also Traitorous." So Axtell must die. The same rule of course smote at the head of any private soldier who served in the ranks![49]
These wicked constructions of treason by the court, out of small offences or honest actions, continued until Mr. Erskine attacked them with his Justice, and with his eloquence exposed them to the indignation of mankind, and so shamed the courts into humanity and common sense.[50] Yet still the same weapon lies hid under the Judicial bench as well of England as of America, whence any malignant or purchased Judge, when it suits his personal whim or public ambition, may draw it forth, and smite at the fortune, the reputation, or the life of any innocent man he has a private grudge against, but dares not meet in open day. Of this, Gentlemen of the Jury, in due time.
The mass of men, busy with their honest work, are not aware what power is left in the hands of judges—wholly irresponsible to the people; few men know how they often violate the laws they are nominally set to administer. Let me take but a single form of this judicial iniquity—the Use of Torture, borrowing my examples from the history of our mother country.
In England the use of torture has never been conformable either to common or to statute law; but how often has it been practised by a corrupt administration and wicked judges! In 1549 Lord Seymour of Sudley, Admiral of England, was put to the torture;[51] in 1604 Guy Fawkes was "horribly racked."[52] Peacham was repeatedly put to torture as you have just now heard, and that in the presence of Lord Bacon himself in 1614.[53] Peacock was racked in 1620, Bacon and Coke both signing the warrant for this illegal wickedness,—"he deserveth it as well as Peacham did," said the Lord Chancellor, making his own "ungodly custom" stand for law.[54] In 1627 the Lord Deputy of Ireland wanted to torture two priests, and Charles I. gave him license, the privy council consenting—"all of one mind that he might rack the priests if he saw fit, and hang them if he found reason!"[55] In 1628 the judges of England solemnly decided that torture was unlawful; but it had always been so,—and Yelverton, one of the judges, was a member of the commission which stretched Peacham on the rack.[56] Yet, spite of this decision, torture still held its old place, and a warrant from the year 1610 still exists for inflicting this illegal atrocity on a victim of the court.[57] Yet even so late as 1804, when Thomas Pictou, governor of Trinidad, put a woman to tortures of the most cruel character, by the connivance of the court he entirely escaped from all judicial punishment.[58] Yes, torture was long continued in England itself, though not always by means of thumbscrews and Scottish boots and Spanish racks; the monstrous chains, the damp cells, the perpetual irritation which corrupt servants of a despotic court tormented their victims withal, was the old demon under another name.[59] Nay, within a few months the newspapers furnish us with examples of Americans being put to the torture of the lash to force a confession of their alleged crime—and this has been done by the power which this court has long been so zealous to support—the Slave Power of America.