Atrocious Judges Part 26

[48] Cro. Car. 403. These forms are no longer used. The chief justice is now sworn in privately before the chancellor; and without any speechifying he enters the court and takes his place on the bench with the other judges. But in Scotland they still subject the new judge to trials of his sufficiency; while these are going on he is called lord probationer; and he might undoubtedly be plucked if the court should think fit.

[49] This is exactly the sort of judges from whom we in America have so much to fear.--_Ed._

[50] We have seen in America similar attempts to stop counsel from exposing the unsoundness of judicial opinions given in support of the fugitive slave act.--_Ed._

[51] This is the very doctrine lately revived, in a little different shape, by some of our American divines--that whatsoever the legislative power in its conscience thinks it may require, we ought to yield.--_Ed._

[52] Some of our American federal judges are in the habit of declaiming much in the same style against abolitionists--who, indeed, may be considered as occupying a position in our present affairs in many respects parallel to that of the English Puritans in the times of Charles I.--_Ed._

[53] Having once refused to hear counsel against ship money, he now undertook to square the account by refusing to hear counsel for it.--_Ed._

[54] See life of Hyde, ante, p. 97.

[55] This supposed inability of the king to do wrong has in America among a certain cla.s.s been transferred to the federal government, which represents the royal authority of the English.--_Ed._

[56] 2 Bl. Com. 69. Compulsory knighthood was abolished by the Long Parliament, 16 Car. I. c. 20.

[57] Their decisions are still of as much authority on legal questions as those of courts sitting under a commission from the crown; and they were published with the sanction of the chancellor and all the judges in the reigns of Charles II. and James II.

[58] It is doubtless a like mixture of motives that prompts just now the conduct of some of our American lawyers.--_Ed._

[59] Charles II., in his _Declaration_ from Breda, had promised that he should "proceed only against the immediate murderers of his royal father."

[60] In answer to the address of the two Houses of the Convention Parliament to spare the lives of Vane and Lambert, the lord chancellor reported, "His majesty grants the desire of the said pet.i.tion;"--the ancient form of pa.s.sing acts of Parliament. The ultra Cavalier House of Commons which followed desired Vane's death, but could not alter the law or abrogate the royal promise.

[61] In his younger days, before the civil war, Sir Henry Vane had been among the early emigrants to Ma.s.sachusetts, and as governor of that colony had borne a part in some remarkable transactions there.--See Hildreth's _History of the United States_, vol. i. ch. ix.

[62] A fortress on the south sh.o.r.e of the English Channel, taken by Cromwell from the Spaniards, and by Charles II. sold at this time to Louis XIV. of France.

[63] So Bacon, better at precept than at practice, in his advice to Sir George Villars, requires in judges these three attributes--they must be men of courage, fearing G.o.d, and hating covetousness: an ignorant man cannot, a _coward_ dare not be a good judge. On the American bench we have too many cowards.--_Ed._

[64] The following dialogue occurred after the verdict:--

_Prisoner._--I most humbly beseech your lordship to remember my condition, (he had before stated himself to be the father of nine small children,) and intercede for me.

_Lord Hyde._--I would not intercede for my own father in this case, if he were alive.

[65] This practice of putting questions to the prisoner intended to intimidate him, to involve him in contradictions, or to elicit from him some indiscreet admission, had ceased during the Commonwealth, but was revived by the new royal judges.

[66] This was the same doctrine afterwards attempted to be maintained by Lord Mansfield, but overruled by a declaratory act of Parliament.

[67] An American specimen of this style of judicial decision may be found in Judge Grier's way of speaking on the bench about Abolitionists.--_Ed._

[68] 6 State Trials, 701-709.

[69] 2 Hale, P. C. 158.

[70] The above pa.s.sage enclosed in brackets has been added by the editor.

Our American judges, more subtle than their predecessors, instead of fining juries for not rendering verdicts according to directions, have introduced the practice of questioning jurors beforehand, and not allowing them to sit unless they pa.s.s a satisfactory examination.--_Ed._

[71] This was an expensive residence built by Clarendon, to which the populace gave that name, under the unfounded idea that the expense of it was defrayed out of bribes received for consenting to the sale of Dunkirk.--_Ed._

[72] This has been from great antiquity the decoration of the English chief justices. Dugdale says it is derived from the name of St.

Simplicius, a Christian judge, who suffered martyrdom under the Emperor Diocletian.--_Ed._

[73] Among these was, "whether the act of severing the head of Charles I.

from his body could be alleged to have been committed in his own lifetime," and "whether it should be laid as against the peace of the late or of the present king." Judge Mallet made the confusion more confounded by maintaining that by the law of England a day is indivisible; and that, as Charles II. certainly was our lawful king during a part of that day, no part of it had been in the reign of Charles I.

[74] This case, thus characterized by Lord Campbell, served as foundation for the remarkable attempt recently made among us to convert opposition to the fugitive slave act into high treason. This b.l.o.o.d.y idea was first started by George T. Curtis, a slave-catching commissioner of Ma.s.sachusetts, in his telegraphic despatch to Mr. Webster, giving an account of the rescue at Boston, by a number of colored men, from the hands of the U. S. marshal, of a man named Shadrach, who had been seized on one of Commissioner Curtis's warrants as a fugitive slave.

Not long after, in September, 1851, a Maryland slaveholder named Gorsuch obtained from the notorious Edward D. Ingraham, the Philadelphia slave-catching commissioner, warrants against four alleged fugitive slaves. He proceeded with an armed party and a deputy marshal to Christiana, and besieged a house in which the slaves were said to have taken refuge. Intelligence had been received of the approach of the party, and the slaves manfully resolved to defend themselves, and, if possible, to achieve their freedom. Some of their colored friends gallantly came to their aid and generously shared their danger. Gorsuch, the slave-hunter, and the marshal entered the house, but were repulsed, each party firing at the other, but, as appears, without effect. The besiegers called for a.s.sistance, and meeting Caspar Hanway, a white man, on horseback, the marshal, as authorized by the fugitive law, commanded his aid in arresting the slaves. Mr. Hanway, as became a republican and a Christian, refused obedience to the infamous mandate. In the mean time the negroes made, it would seem, a sortie, advancing on the enemy. Hanway called to them _not to fire_. His exhortation was unheeded. Gorsuch was shot dead, another was wounded, and the residue of the slave-catchers sought safety in flight.

At the next meeting of the United States District Court for the Eastern District of Pennsylvania, this case was brought to the notice of the grand jury by Judge Kane.

After reciting the facts as they appeared in the newspapers, he added, that it was reported "that for some months back, gatherings of people, strangers as well as citizens, have been held from time to time in the vicinity of the place of the recent outrage, at which exhortations are made and pledges interchanged to hold the law for the recovery of fugitive slaves as of no validity, and to defy its execution." In other words, anti-slavery meetings had been held in Lancaster county, as in other parts of the free states, and in these meetings one of the most detestable acts of modern legislation had been denounced as cruel and unjust, and the people in attendance had expressed their determination not to partic.i.p.ate in slave hunts.

"If," said the judge; "the circ.u.mstances to which I have adverted [viz: the riot at Christiana and the anti-slavery meetings] have in fact taken place, they involve the highest crime known to the law." And what crime is that? Treason. And what is treason? The judge answers, "Levying war against the United States." And what had the affair at Christiana to do with war against the United States? Again the judge replies, "Any combination forcibly to prevent or oppose the execution or enforcement of a provision of the Const.i.tution or of a public statute, if accompanied by an act of forcible opposition in pursuance of such combination," is embraced in the expression "levying war against the United States," as used in the const.i.tutional definition of treason. Hence, four negroes combining to maintain their newly-recovered liberty by forcibly resisting the efforts of a slave-catcher, are guilty of levying war against the United States.

But the judge's patriotic zeal against traitors did not confine itself to the enemies of the United States actively engaged in the Christiana campaign. Here, indeed, he went far beyond even the infamous Judge Kelynge. "It is not necessary," so he told the grand jury, "to prove that the individual accused was a direct personal actor in the violence, nor is even his personal presence indispensable. Though he be absent at the actual perpetration, yet if he directed the act, devised, or knowingly furnished the means for carrying it into effect, or instigated others to perform it, he shared their guilt. In treason, there are no accessories."

From all this the grand jury were to understand that anti-slavery men, by their doctrines of human rights and their denunciations of the fugitive act, instigated fugitive slaves to defend themselves; hence, as, in treason, all are princ.i.p.als, however remotely and indirectly concerned, these abolition instigators had also levied war, were traitors, and might be legally hung. To strengthen this intended impression on the minds of the jury, the judge launched out into an invective against the abolitionists, concluding with the very significant and smart admonition, "While he (the abolitionist) remains within our borders he is to remember that successfully to instigate treason is to commit it."

What is still more astonishing than even this charge, the grand jury, to whom it was delivered, showed themselves such ready receivers of its infamous and atrocious doctrines as to bring into court thirty bills for high treason, against as many different individuals, founded upon it.

Of these thirty indictments, the only one brought to trial was that against Caspar Hanway, above mentioned. The only acts proved against this man, in support of the charge of having "traitorously levied war against the United States," were, 1. having declined to a.s.sist the marshal in arresting the fugitives; and 2. in calling to the negroes and urging them _not_ to fire.

Judge Grier presided on the trial, and notwithstanding his vulgar invectives against the abolitionists, found himself compelled to charge the jury, even in the presence of Judge Kane, that "a number of fugitive slaves may infest a neighborhood, and may be encouraged by their neighbors in combining to resist with force and arms their master, or the public officer who may come to arrest them; they may murder or rob them; they are guilty of felony and liable to punishment, but not as traitors." The prisoner was of course acquitted, and all the other indictments abandoned; and thus ended in shame and ridicule Judge Kane's ingenious device for hanging all who resisted the fugitive slave law. Yet this same man, at a Kossuth meeting at Philadelphia, made a rampant filibustering speech in behalf of oppressed nations, quoting with exultation the words of Vattel, "When a people from good reasons take up arms against an oppressor, justice and generosity require that brave men should be a.s.sisted in the defence of their liberties."--_Ed._

[75] See ante, pp. 150, 151.

[76] And yet it is upon the authority of these worthless reports that some important American decisions have been based. See 13 _Ma.s.s. Reports_, 356, Commonwealth v. Bowen; also the preceding note.--_Ed._

[77] For an account of Chiffinch, see the Life of Jeffrey, p. 278.

[78] Our recent American history presents a curious parallel to the English Popish plot delusion and the use made of it by the unscrupulous politicians of that age. The basis of that delusion was the well-founded horror which the English people entertained for the Popish religion as hostile to their liberties. The immediate allegation upon which it rested was, that the Papists had formed a conspiracy to a.s.sa.s.sinate Charles II., and so to open the way to the throne for the Duke of York, (afterwards James II.,) a professed Papist.

The suggestion of this plot, founded merely on vague suspicions,--(if indeed it was not, as some writers think, purposely started for political objects,)--was taken hold of by the unprincipled Shaftesbury, who from having been an ultra courtier, had become the leader of the country party.

He sought to use it to stimulate the people against the court, and to prepare the way for his project of excluding the Duke of York from succession to the throne. He expected that the court would oppose this delusion, and so would make itself still more unpopular. But Charles II., no less unprincipled than Shaftesbury, was quite as ready as he to play at any dangerous game; and that he might gain credit for Protestantism, (though all the while secretly a Papist,) he resolved to humor the delusion to the utmost, and to allow it full play against its unfortunate victims.

So here in America, the democrats, (so called, but in fact slavery extenders,) taking advantage of the very strong and well-founded popular sentiment in favor of the Union, and seeking to recommend themselves to favor as a national party, hit upon the similar expedient of accusing the abolitionists of a plot to dissolve the Union, part of the odium of which they hoped to throw upon their political opponents, the so-called whigs, by accusing them as screeners and favorers of the abolitionists. The whigs, however, in imitation of the policy of Charles II., and under the leadership of the late Daniel Webster, sought to turn this pretended plot to their own advantage, by coming out still more furious Union-savers than even the democrats, and denouncing the abolitionists with still greater fury--thus working up the public mind into a terror at the imaginary danger of the Union, much like that of the English people at the time of the Popish plot. We, too, have had our trials for treason, (see ante, p.

158-161;) and if we have had no b.l.o.o.d.y executions, it has not been for want of Scroggses, both on and off the bench.--_Ed._

[79] For this he probably received a good sum of money.

[80] "By his zeal in the Protestant cause he gained for a while a universal applause throughout the whole nation."--_Athenae_, iv. 116.

[81] This profession of contempt for "vulgar noise" has lately been repeated in America by a judge whose manner and bearing on the bench come as near those of Scroggs as the present times will bear.--_Ed._

[82] From this a.s.severation a suspicion arises of pecuniary corruption; but I believe that Scroggs was swayed in this instance by a disinterested love of rascality.