had been concerned in a riot were
found guilty of high treason, sentenced, and four hanged. All of the
eleven Judges--Twysden was one of them--concurred in the sentence,
except Sir Matthew Hale. He declared there was no treason committed;
there was "but an unruly company of apprentices."[46]

[Footnote 46: 6 St. Tr. 879, note 911.]

This same Judge Kelyng, singularly thick-headed and ridiculous, loved
to construct crimes where the law made none. Thus he declares, "in
cases of high treason, if any one do any thing by which he showeth his
_liking_ and _approbation_ to the Traitorous Design, this is in him
High Treason. For all are Principals in High Treason, who contribute
towards it by Action or Approbation."[47] He held it was an overt act
of treason to print a "treasonable proposition," such as this, "The
execution of Judgment and Justice is as well the people's as the
magistrates' duty, and if the magistrates pervert Judgment, the people
are bound by the law of God to execute judgment without them and upon
them."[48] So the printer of the book, containing the "treasonable
proposition," was executed. A man, by name Axtell, who commanded the
guards which attended at the trial and execution of Charles I., was
brought to trial for treason. He contended that he acted as a soldier
by the command of his superior officer, whom he must obey, or die. But
it was resolved that "that was no excuse, for his superior was a
Traitor and all that joined with him in that act were Traitors, and
did by that approve the Treason, and when the command is Traitorous,
then the Obedience to that Command is also Traitorous." So Axtell must
die. The same rule of course smote at the head of any private soldier
who served in the ranks![49]

[Footnote 47: Kelyng's Reports, 12.]

[Footnote 48: Ibid. 22.]

[Footnote 49: Kelyng's Reports, 13.]

These wicked constructions of treason by the court, out of small
offences or honest actions, continued until Mr. Erskine attacked them
with his Justice, and with his eloquence exposed them to the
indignation of mankind, and so shamed the courts into humanity and
common sense.[50] Yet still the same weapon lies hid under the
Judicial bench as well of England as of America, whence any malignant
or purchased Judge, when it suits his personal whim or public
ambition, may draw it forth, and smite at the fortune, the reputation,
or the life of any innocent man he has a private grudge against, but
dares not mee