e liked, any of his subjects without trial, even members of
Parliament for words uttered in public debate; and also the right to
levy ship-money contrary to the Acts of Parliament. This charge was
made in the tyrannical reign of Charles I. in 1634, by a tyrannical
judge. There was no report, only _a memorandum_ of it, and that not
printed till seventy-four years after! It had not the force of law
even then: it was only the memorandum of the "opinion" of a single
judge, not even the "opinion" of the full court. The memorandum is
contained in Kelyng's Book, which Lord Campbell calls "a folio volume
of decisions in criminal cases, which are of no value whatever, except
to make us laugh at some of the silly egotisms with which they
abound."[151] On such authority in 1816 would even a Massachusetts
court, with a judge who was a kindly man in private, dash away the
life of a fellow-creature,--with such mockery of law! But, Gentlemen,
the jury at that time did not slumber; they set the matter right, and
did justice spite of Judge Kelyng and his "law." They made nothing of
the judge's charge!

[Footnote 151: 2 Campbell, Judges, 406.]

* * * * *

Gentlemen of the Jury, I will now mention some cases of gross
injustice perpetrated by the Federal Courts of the United States.

The tenth article of amendments to the Constitution provides that
"powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the People." The Constitution itself confers no
Common Law Jurisdiction on the Government. Neither the People nor
their Representatives had ever decreed the Common Law of England to be
a part of the law of the United States. Yet, spite of the absence of
positive enactment and the express words of the above amendment to the
Constitution, the Supreme Court at once assumed this jurisdiction. In
1799, Chief Justice Ellsworth said, "the Common Law of this country
remains the same as it was before the Revolution;"[152] and proceeded
on that supposition to exercise the powers of English Judges of Common
Law, undertaking to punish men for offences which no Act of Congress
forbid. You see at once what monstrous tyranny would follow from that
usurpation. Had the English Common Law power of punishing for
"seditious libel," for example, been allowed to the Federal court,
Gentlemen, you know too well what would follow. But this m