treatise touching resistance by the subject to the
sovereign, as a constitutional principle. But, though the fragment
contained nothing more than the doctrines of Locke, Sidney had
cautiously shown it to no one, and it had only been found by searching
his study. Jeffreys told the jury that if they believed the book to be
Sidney's book, written by him, they must convict for _scribere est
agere_, to write is to commit an overt act.

A revolution followed upon this and other like convictions, as
revolutions have usually followed such uses of the judicial power. In
that revolution the principle of the limitation of the judicial function
was recognized, and the English people seriously addressed themselves to
the task of separating their courts from political influences, of
protecting their judges by making their tenure and their pay permanent,
and of punishing them by removal if they behaved corruptly, or with
prejudice, or transcended the limits within which their duty confined
them. Jeffreys had legislated when he ruled it to be the law that, to
write words secretly in one's closet, is to commit an overt act of
treason, and he did it to kill a man whom the king who employed him
wished to destroy. This was to transcend the duty of a judge, which is
to expound and not to legislate. The judge may develop a principle, he
may admit evidence of a custom in order to explain the intentions of the
parties to a suit, as Lord Mansfield admitted evidence of the customs of
merchants, but he should not legislate. To do so, as Jeffreys did in
Sidney's case, is tantamount to murder. Jeffreys never was duly punished
for his crimes. He died the year after the Revolution, in the Tower,
maintaining to the last that he was innocent in the sight of God and man
because "all the blood he had shed fell short of the King's command."

And Jeffreys was perfectly logical and consistent in his attitude. A
judiciary is either an end in itself or a means to an end. If it be
designed to protect the civil rights of citizens indifferently, it must
be free from pressure which will deflect it from this path, and it can
only be protected from the severest possible pressure by being removed
from politics, because politics is the struggle for ascendancy of a
class or a majority. If, on the other hand, the judiciary is to serve as
an instrument for advancing the fortunes of a majority or a dominant
class, as David used the Jewish judiciary, or as the Stuarts use