Gentlemen of the Jury, such judges, with such kings and cabinets, have repeatedly brought the dearest rights of mankind into imminent peril. Sad indeed is the condition of a nation where Thought is not free, where the lips are sewed together, and the press is chained! Yet the evil which has ruined Spain and made an Asia Minor of Papal Italy, once threatened England. Nay, Gentlemen of the Jury, it required the greatest efforts of her noblest sons to vindicate for you and me the right to print, to speak, to think. Milton's "Speech for the Liberty of unlicensed Printing" is one monument of the warfare which lasted from Wicliffe to Thomas Carlyle. But other monuments are the fines and imprisonment, the exile and the beheading of men and women! Words are "sedition," "rebellion," "treason;" nay, even now at least in New England, a true word is a "Misdemeanor," it is "obstructing an officer." At how great cost has our modern liberty of speech been purchased! Answer John Lilburne, answer William Prynn, and Selden, and Eliot, and Hampden, and the other noble men who

——"in the public breach devoted stood,
And for their country's cause were prodigal of blood."

Answer Fox and Bunyan, and Penn and all the host of Baptists, Puritans, Quakers, martyrs, and confessors—it is by your stripes that we are healed! Healed! are we healed? Ask the court if it be not a "misdemeanor" to say so!

A despotic government hates implacably the freedom of the press. In 1680 the Lord Chief Justice of England declared the opinion of the twelve judges "indeed all subscribe that to print or publish any news-books, or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing." "And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority;" "they shall be punished if they do it without authority, though there is nothing reflecting on the government."[91] Judge Scroggs was right—it was "resisting an officer," at least "obstructing" him in his wickedness. In England, says Lord Campbell, the name and family of Scroggs are both extinct. So much the worse for you and me, Gentlemen. The Scroggses came over to America; they settled in Massachusetts, they thrive famously in Boston; only the name is changed.

In 1731 Sir Philip Yorke, attorney-general, solemnly declared that an editor is "not to publish any thing reflecting on the character and reputation and administration of his Majesty or his Ministers;" "if he breaks that law, or exceeds that liberty of the press he is to be punished for it." Where did he get his law—in the third year of Edward I., in a.d. 1275! But that statute of the Dark Ages was held good law in 1731; and it seems to be thought good law in 1855! And the attorney who affirmed the atrocious principle, soon became Chief Justice, a "consummate judge," a Peer, Lord Hardwicke, and Lord Chancellor![92] Lord Mansfield had not a much higher opinion of the liberty of the press; indeed, in all libel cases, he assumed it was exclusively the function of the judges to determine whether the words published contained malicious or seditious matter, the jury were only to find the fact of publication.[93] Thus the party in power with their Loughboroughs, their Thurlows, their Jeffreys, their Scroggs—shall I add also American names—are the exclusive judges as to what shall be published relating to the party in power—their Loughboroughs, their Thurlows, their Jeffreys and their Scroggs, or their analogous American names! It was the free press of England—Elizabeth invoked it—which drove back the "invincible Armada;" this which stayed the tide of Papal despotism; this which dyked the tyranny of Louis XIV. out from Holland. Aye, it was this which the Stuarts, with their host of attendants, sought to break down and annihilate for ever;[94] which Thurlow and Mansfield so formidably attacked, and which now in America—but the American aspect of the matter must not now be looked in the face.

But spite of all these impediments in the way of liberty, the voice of humanity could not be forever silenced. Now and then a virtuous and high-minded judge appeared in office—like Hale or Holt, Camden or Erskine. Even in the worst times there were noble men who lifted up their voices. Let me select two examples from men not famous, but whose names, borne by other persons, are still familiar to this court.

In 1627 Sir Robert Phillips, member for Somersetshire, in his place in Parliament, thus spoke against the advance of despotism:[95]—

"I read of a custom among the old Romans, that once every year they had a solemn feast for their slaves; at which they had liberty, without exception, to speak what they would, thereby to ease their afflicted minds; which being finished, they severally returned to their former servitude. This may, with some resemblance and distinction, well set forth our present state; where now, after the revolution of some time, and grievous sufferance of many violent oppressions, we have, as those slaves had, a day of liberty of speech; but shall not, I trust, be hereafter slaves, for we are free: yet what new illegal proceedings our estates and persons have suffered under, my heart yearns to think, my tongue falters to utter. They have been well represented by divers worthy gentlemen before me; yet one grievance, and the main one, as I conceive, hath not been touched, which is our Religion: religion, Mr. Speaker, made vendible by commission, and men, for pecuniary annual rates, dispensed withal; Judgments of law against our liberty there have been three; each latter stepping forwarder than the former, upon the Rights of the Subject; aiming, in the end, to tread and trample underfoot our law, and that even in the form of law."

"The first was the Judgment of the Postnati, (the Scots,) ... The second was the Judgment upon Impositions, in the Exchequer Court by the barons; which hath been the source and fountain of many bitter waters of affliction unto our merchants." "The third was that fatal late Judgment against the Liberty of the Subject imprisoned by the king, argued and pronounced but by one judge alone." "I can live, although another who has no right be put to live with me; nay, I can live although I pay excises and impositions more than I do; but to have my liberty, which is the soul of my life, taken from me by power; and to have my body pent up in a gaol, without remedy by law, and to be so adjudged: O improvident ancestors! O unwise forefathers! To be so curious in providing for the quiet possession of our lands, and the liberties of Parliament; and to neglect our persons and bodies, and to let them lie in prison, and that durante bene placito, remediless! If this be law, why do we talk of liberties? Why do we trouble ourselves with a dispute about law, franchises, property of goods, and the like? What may any man call his own, if not the Liberty of his Person? I am weary of treading these ways."[96]