ld say at Horne Tooke's trial on the 4th of July,
1777. Nay, I quoted the words of Powis and Allybone, and Scroggs and
Jeffreys.[118] But, Gentlemen, the judge of New England transcends the
judges of Old England.

[Footnote 117: See _Boston Daily Advertiser_ of March 19, 1851.]

[Footnote 118: See above, p. 33, 37, _et al._]

3. Having made this general preparation for his work and shaped his
vessel to the proper form, he proceeds to fill it with the requisite
matter.

(1.) He practically makes the Law just as he likes, so as to suit the
general purpose of the government, or the special purpose of his
private vengeance or ambition. Thus,

a. Out of the whole complex of law--statutes, decisions, customs,
charges, opinions of judicial men, since the Norman conquest or before
it,--he selects that special weapon which will serve his present turn.
And tells the jury, "that is the law which you are sworn to enforce. I
have not made it--it is the _Lex terrae_, the Law of the Land." Or if
in such an arsenal, so copious, he finds no weapon ready made, then

b. Out of that pile of ancient instruments he selects something which
he forges over anew, and thus constructs a new form of law when he
could not find one ready for his hand. If a straight statute will not
catch the intended victims he perverts it to a hook and therewith lays
hold. He thus settles the law.

(2.) He next practically determines what Deed constitutes the
"offence" forbidden by the law he has just made. So he selects some
act which it is notorious was done by the man he strikes at, and
declares it is the "offence," the "crime." Here too he is aided by
ancient precedent; whereof if our brief Republican annals do not
furnish examples, he hies to the exhaustless treasury of Despotism in
the English common law. He opens the "Reports," the "Statutes of the
Realm," or goes back to the "Year-books." Antiquity is rich in
examples of tyranny. "He readily finds a stick who would beat a dog."
"Such are the opinions," quoth he, "of the venerable Chief Justice
Jones," or "my Lord Chancellor Finch," or "Baron Twysden," or "my Lord
Chief Justice Kelyng."

Thus the Judge constructs the Jury--out of such men as he wishes for
his purpose; constructs the Law, constructs the Offence, the Crime:
nay, he points out the particular Deed so plain that he constructs the
Indictment. All that is left for the "Grand Inquest" is the mechanical
work of listening to the "evidence" an