It has been well said:—
"It must be owned that the Guards and Fences of the law have not always proved an effectual security for the subject. The Reader will ... find many Instances wherein they who hold the sword of Justice did not employ it as they ought to in punishment of Evil-Doers, but to the Oppression and Destruction of Men more righteous than themselves. Indeed it is scarce possible to frame a Body of Laws which a tyrannical Prince, influenced by wicked Counsellors and corrupt Judges, may not be able to break through.... The Law itself is a dead letter. Judges are the interpreters of it, and if they prove men of no Conscience nor Integrity, they will give what sense they will to it, however different from the true one; and when they are supported by superior authority, will for a while prevail, till by repeated iniquities they grow intolerable and throw the State into convulsions which may at last end in their own ruin. This shows how valuable a Blessing is an upright and learned Judge, and of what great concern it is to the public that none be preferred to that office but such whose Ability and Integrity may be safely depended on."[60]
Thus, Gentlemen of the Jury, is it that judges who know no law but the will of "the hand that feeds them," appointed for services rendered to the enemies of mankind and looking for yet higher rewards, have sought to establish the despotism of their masters on the ruin of the People. But the destruction of obnoxious individuals is not the whole of their enormity; so I come to the next part of the subject.
(III.) The next step is for such judges to interpret, wrest, and pervert the laws so as to prepare for prospective Acts of Tyranny.
Here, Gentlemen of the Jury, I shall have only too many examples to warn you with.
Early in his reign James I. sought to lay burthensome taxes on the people without any act of Parliament; this practice was continued by his successors.
1. In 1606 came "the great Case of Impositions," not mentioned in the ordinary histories of England. The king assumed the right to tax the nation by his own prerogative. He ordered a duty of five shillings on every hundred pounds of currants imported into the kingdom to be levied in addition to the regular duty affixed by Act of Parliament. This was contrary to law, nay, to the Constitution of England, her Magna Charta itself provided against unparliamentary taxation. Sir John Bates, a London merchant, refused to pay the unlawful duty, and was prosecuted by information in the Star-Chamber. "The courts of justice," says Mr. Hallam, "did not consist of men conscientiously impartial between the king and the subject; some corrupt with hopes of promotion, many more fearful of removal, or awe-struck by the fear of power." On the "trial" it was abundantly shown that the king had no right to levy such a duty. "The accomplished but too pliant judges, and those indefatigable hunters of precedents for violations of constitutional government, the great law-officers of the crown," decided against the laws, and Chief Justice Fleming maintained that the king might lay what tax he pleased on imported goods! The corrupt decision settled the law for years—and gave the king absolute power over this branch of the revenue, involving a complete destruction of the liberty of the people,—for the Principle would carry a thousand measures on its back.[61] The king declared Fleming a judge to his "heart's content." Bacon's subserviency did not pass unrewarded. Soon after James issued a decree under the great seal, imposing heavy duties on almost all merchandise "to be for ever hereafter paid to the king and his successors, on pain of his displeasure."[62] Thus the Measure became a Principle.
2. James, wanting funds, demanded of his subjects forced contributions of money,—strangely called "Benevolences," though there was no "good-will" on either side. It was clearly against the fundamental laws of the kingdom. Sir Oliver St. John refused to pay what was demanded of him, and wrote a letter to the mayor of Marlborough against the illegal exaction. For this he was prosecuted in the Star-Chamber in 1615 by Attorney-General Bacon. The court, with Lord Chancellor Ellesmere at its head, of course decided that the king had a right to levy Benevolences at pleasure. St. John was fined five thousand pounds, and punished by imprisonment during the king's pleasure. This decision gave the king absolute power over all property in the realm,—every private purse was in his hands![63] With such a court the king might well say, "Wheare any controversyes arise, my Lordes the Judges chosene betwixte me and my people shall discide and rulle me."[64]
3. Charles I. proceeded in the steps of his father: he levied forced loans. Thomas Darnel and others refused to pay, and were put in prison on a General Warrant from the king which did not specify the cause of commitment. They brought their writs of habeas corpus, contending that their confinement was illegal. The matter came to trial in 1627. Sir Randolf Crewe, a man too just to be trusted to do the iniquity desired, was thrust out of office, and Sir Nicolas Hyde appointed chief justice in his place. The actual question was, Has the king a right to imprison any subject forever without process of law? It was abundantly shown that he had no such right. But the new chief justice, put in power to oppress the people, remembering the hand that fed him, thus decreed,—"Mr. Attorney hath told you that the king hath done it, and we trust him in great matters, and he is bound by law, and he bids us proceed by law; ... and we make no doubt but the king, if you look to him, he knowing the cause why you are imprisoned, he will have mercy; but that we believe that ... he cannot deliver you, but you must be remanded." Thus the judges gave the king absolute power over the liberties of any subject.[65]
But the matter was brought up in Parliament and discussed by men of a different temper, who frightened the judge by threats of impeachment, and forced the king to agree to the Petition of Right designed to put an end to all such illegal cruelty. Before Charles I. would sign that famous bill, he asked Judge Hyde if it would restrain the king "from committing or restraining a subject without showing cause." The crafty judge answered, "Every law, after it is made, hath its exposition, which is to be left to the courts of justice to determine; and although the Petition be granted there is no fear of [such a] conclusion as is intimated in the question!" That is, the court will interpret the plain law so as to oppress the subject and please the king! As the judges had promised to annul the law, the king signed it.[66] Charles dissolved Parliament and threw into jail its most noble and powerful members—one of whom, Eliot, never left the prison till death set him free.[67] The same chief justice gave an extrajudicial opinion justifying the illegal seizure of the members,—"that a parliament man committing an offence against the King in Parliament not in a parliamentary course, may be punished after the Parliament is ended;" "that by false slanders to bring the Lords of the Council and the Judges, not in a parliamentary way, into the hatred of the people and the government into contempt, was punishable out of Parliament, in the Star-Chamber, as an offence committed in Parliament beyond the office, and beside the duty of a parliament man."[68] Thus the judges struck down freedom of speech in Parliament.