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Title: Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression

Author: Baron John Campbell Campbell

Editor: Richard Hildreth

Release date: June 24, 2012 [eBook #40076]

Language: English

Credits: E-text prepared by Bryan Ness and the Online Distributed Proofreading Team (http://www.pgdp.net) from page images generously made available by the Google Books Library Project (http://books.google.com)


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Transcriber's note:

      Text enclosed by underscores is in italics (_italics_).





ATROCIOUS JUDGES.

Lives of Judges Infamous As Tools of Tyrants and Instruments
of Oppression.

Compiled from the Judicial Biographies of

JOHN LORD CAMPBELL,

Lord Chief Justice of England.

With an Appendix, Containing the Case of Passmore Williamson.

Edited, with an Introduction and Notes, by Richard Hildreth.







New York and Auburn:
Miller, Orton & Mulligan.
New York: 25 Park Row.--Auburn: 107 Genesee Street.
1856.

Entered, according to Act of Congress, in the Year 1855, by
Richard Hildreth,
In the Clerk's Office of the District Court of the District of
Massachusetts.

Stereotyped at the
Boston Stereotype Foundry.




ADVERTISEMENT.


The text of the following BOOK OF JUDGES has been derived from Lord
Campbell's _Lives of the Chief Justices, and Lives of the Chancellors_,
with only a few verbal alterations for the sake of connection, some
transpositions, the omission of some details of less interest to the
American reader, and the insertion of a few paragraphs, enclosed in
brackets, thus [ ].

Most biographers have been arrant flatterers. Lord Campbell is a
distinguished member of that modern school, which holds that history is of
no dignity nor use, except so far as it is true; and that the truth is to
be told at all hazards and without reserve. Hitherto social and political
position, obtained no matter by what means, has in general secured not
only present but future reputation. It can hardly fail to be a serious
check upon those who struggle for distinction to understand, that,
however they may cheat or dazzle their contemporaries, they must expect to
encounter from posterity a Rhadamantine judgment.

The object of the present work, prepared as it is in the interest of
justice and freedom, and designed to hold up a mirror to magistrates now
sitting on the American bench, in which "to show virtue her own feature,
scorn her own image, and the very life and body of the time his form and
pressure," will, I hope, induce Lord Campbell to pardon the liberty I have
ventured to take with his writings.

R. H.

BOSTON, _November 20, 1855_.




CONTENTS.


INTRODUCTION.

    The administration of justice the great end of government, page 9.
    Polity of the Anglo-Saxons, 10. County courts, 12. Policy of the
    Norman conquerors, 13. Their scheme for the administration of justice,
    14. Aula Regis, or King's Court, 15. Law proceedings become a mystery,
    16. Division of the Aula Regis, 18. King's Bench, 18. Common Pleas,
    19. Exchequer, 19. Court of Chivalry, or Honor Court, 19. Origin of
    the legal profession as it exists at present--Inns of Court, 20.
    Special Pleadings, 21. Serjeants, Barristers, and Attorneys, 22.
    Justices of the peace, 23. Appeals to Parliament, 24. Trial by jury,
    25. Nisi prius trials, 27. Usurpations of the courts upon each other,
    28. Court of Chancery, 30. Court of Admiralty, 31. Use of torture, 32.
    Suits for slander in the Court of Chivalry, 33. The courts the ready
    tools of executive usurpation, 34. Courts of Star Chamber and High
    Commission, 34. Sources and object of the present compilation, 35.
    Bearing of the following narratives on passing events, 35.

CHAPTER I.

ROGER LE BRABANCON.

    His ancestry, page 37. Made a judge, 37. Edward I. claims sovereignty
    over Scotland, 39. The family of Bruce, 40. Robert de Brus, 41.
    Contest for the Scottish throne, 43. Brabancon maintains Edward's
    claim, 44. Is rewarded with the office of chief justice, 47.

CHAPTER II.

ROBERT TRESILIAN.

    Appointed chief justice, 48. Ready for any dirty work, 49. Judicial
    opinion in favor of the arbitrary power of the King, 50. Preparations
    for judicial murders, 53. The barons march on London, 54. Tresilian
    appealed of high treason, 56. Found guilty, 57. Arrest and execution,
    59.

CHAPTER III.

THOMAS BILLING.

    Lancastrians and Yorkists, 61. Fortescue and Markham, 61. Removal of
    Markham, 63. Billing a judge, 64. His infamous character, 64. His
    previous life, 64. Begins a Lancastrian, 65. The Yorkists having
    triumphed, becomes a Yorkist, 66. Made a judge, 67. Trial of Walker,
    67. A court favorite, 68. Chief justice, 69. Trial of Sir Thomas
    Burdett, 69. Lancastrian revolution, 71. Billing changes, and keeps
    his place, 72. Yorkist revolution, 72. Billing changes again, and
    keeps his place, 73. Procures a pardon for Fortescue, 73. His law
    decisions, 74. Trial of the Duke of Clarence, 74. Billing's death, 75.

CHAPTER IV.

JOHN FITZJAMES.

    A friend of Wolsey's, 76. Who makes him attorney general, 77.
    Prosecution of Buckingham, 77. Made a judge, 77. Chief justice, 78.
    Turns against Wolsey after his fall, 78. Ecclesiastical pretensions
    of Henry VIII., 80. Trial of Fisher, 81. Trial of Sir Thomas More, 83.
    Trials of the supposed gallants of Anne Boleyn, 85. Fitzjames's
    opinion as to the mode of Anne Boleyn's execution, 85. His death, 85.

CHAPTER V.

THOMAS FLEMING.

    A rival of Bacon's, 87. His origin and progress, 87. Solicitor
    general, 88. Speaker of the House of Commons, 89. Bacon his rival
    there, 90. Fleming chief baron of the Exchequer, 90. His judgment in
    the case of impositions, 91. Made chief justice, 94. Case of the
    Postnati, 94. Trial of the Countess of Shrewsbury, 95. Wholly eclipsed
    by Sir Edward Coke, 95. His death, 96.

CHAPTER VI.

NICHOLAS HYDE.

    Plan of Charles I. to rule without Parliaments, 97. Sir Randolph
    Crewe, chief justice, discharged to make room for Hyde, 98. His family
    and previous career, 98. Case of Sir Thomas Darnel, 99. Petition of
    Right, 102. Hyde's opinion that it would not be binding on the king,
    103. Proceedings against Selden and others, 103. Hyde's death, 106.
    Much applauded by true courtiers, 106.

CHAPTER VII.

JOHN BRAMPSTON.

    Charles I. perseveres in his arbitrary schemes, 107. Brampston's
    previous life, 107. Appointed chief justice, 109. Contrast between his
    personal and political character, 109. Opinion in favor of ship money,
    110. Trial of Hampden, 111. Lord Say's case, 111. Trial of Rev. Thomas
    Harrison, 112. Brampston as a Star Chamber judge, 113. Case of the
    Bishop of Lincoln, 114. Long Parliament, 115. Brampston impeached,
    116. Turns about on the question of ship money, 116. Parliament
    appeased, 117. Summoned by Charles to join him at his camp, 117.
    Superseded, 118. Death and character, 118.

CHAPTER VIII.

ROBERT HEATH.

    His origin and high prerogative principles, 119. Solicitor general,
    120. Attorney general, 121. His share in the trial of Darnel, 121.
    Holds the petition of right illegal, 122. His part in the trial of
    Selden and his followers, 123. Schemes for raising money, 125. Chief
    justice of the Common Pleas, 126. His removal from office, 127.
    Returns to practice, 128. Judge of the King's Bench, 128. Chief
    justice, 129. His acts as such, 129. Flies to the continent, 131.
    Death and character, 131.

CHAPTER IX.

ROBERT FOSTER.

    Reorganization of the bench at the restoration, 132. Foster's early
    life, 133. Judge of the Common Pleas, 134. Joins the king at Oxford,
    134. Removed by Parliament, 134. Returns to practice, 134. Reappointed
    a judge by Charles II., 134. Chief justice, 134. Trial of Vane, 135.
    Case of John Crook, 138. Case of Tonge and others, 139. Death, 140.

CHAPTER X.

ROBERT HYDE.

    His connections and early history, 142. A judge of the Common Pleas,
    141. Chief justice of the King's Bench--his installation, 143. Trial
    of a printer, 144. Trial of Keach for libel, 146. Introduces the
    practice of fining juries, 150. Cried up as an eminent judge, 151.
    Drops dead, 151.

CHAPTER XI.

JOHN KELYNGE.

    Appointed a judge, 152. Previous career, 153. Conducts the prosecution
    of Colonel Hacker, 154. Made chief justice over Sir Matthew Hale's
    head, 156. His behavior, 156. Moorfields rioters held guilty of
    treason, 157. American application of this doctrine, 158, _note_.
    Treatment of juries, 159. Conduct investigated by the House of
    Commons, 161. Tame for the rest of his days, 162. His reports, 162.

CHAPTER XII.

WILLIAM SCROGGS.

    His early life, 163. Judge of the Common Pleas, 165. Chief justice of
    the King's Bench, 166. Favors the Popish Plot delusion, 167. American
    counterpart of that plot, 167, _note_. Trial of Godfrey, 168. Of
    others, 169. Of Bromwich, 170. Scroggs changes his policy, 171.
    Wakeman acquitted, 172. Scroggs attacked by the mob, 172. His defence,
    173. Castlemaine acquitted, 175. Trial of Mrs. Collier, 175. Charges
    to grand juries, 176. Attack on the press, 177. Conduct in
    Shaftesbury's case, 178. Charges made to the Council against Scroggs,
    178. His trial, 179. House of Commons inquires into his conduct, 180.
    General characteristics, 181. Removal from office, 182. His subsequent
    life, 183. His infamy, 184.

CHAPTER XIII.

FRANCIS NORTH.

    His noble birth, 185. Early life, 186. A court keeper, 188. Called to
    the bar, 189. His early practice, 189. A lickspittle, 193. A leader at
    the bar, 194. Makes his fortune by avowing "loyal" principles, 195.
    Solicitor general, 197. His practice, 198. His loves, 199. Marriage,
    200. Insignificant as a member of Parliament, 200. Attorney general,
    201. Fees in abundance, 202. Chief justice of the Common Pleas, 203.
    Conduct on the bench, 203. Career as a politician, 206. Legal oracle
    of the party of arbitrary power, 206. Proclamation against coffee
    houses, 206. Petitioners and Abhorrers--North obstructs the right of
    petition, 207. Parliamentary proceedings against him, 208. Draws a
    declaration against the popular party, 209. Trial of College, the
    Protestant joiner, 210. Proceedings against Shaftesbury, 212. Attack
    on the municipal privileges of London, 216. North made lord
    chancellor, 217. His disappointment and dissatisfaction, 219. Assists
    at the inauguration of Saunders, 220. His conduct as a law reformer
    and equity judge, 221. As a statesman, 223. Joins in the proceedings
    against the charter of London, 224. Made a peer--Disfranchises many
    towns, 226. Dismisses Burnet, 226. Rye house plot, 227. Jeffreys his
    rival, 227. His mortifications, 229. Triumphs over Jeffreys in the
    matter of the recusants, 230. Death of Charles II., 233. Continued in
    office by James II., 234. Puts the seal to a questionable
    proclamation, 235. Parliament meets, 236. North snubbed, 236. Clings
    to office, 237. Still thwarted and browbeaten by Jeffreys, 237.
    Further mortifications, 239. His dejection and misery, 240. Monmouth's
    insurrection, 240. His conduct as to the prisoners, 241. Death and
    character, 242. Jokes upon him, 244. His writings, 245. His method of
    living, 245. His domestic relations, 246. Descendants, 247. His early
    death, 247. His life by Roger North, 247.

CHAPTER XIV.

EDMUND SAUNDERS.

    Motives of his appointment, 248. Early history, 248. Called to the
    bar, 250. His practice, 251. His reports, 251. Not desirous of
    preferment, 253. Counsel for the crown, 253. Advises a _quo warranto_
    against the city of London, 256. Appointed chief justice, 256. His
    conduct in the London case, 258. Judgment of the court pronounced by
    Justice Jones, 260. Trial of Lord Grey, 260. Sudden death, 264. His
    appearance and manners, 264. His reports, 266.

CHAPTER XV.

GEORGE JEFFREYS.

    His parentage, 267. School days, 267. Scheme of becoming a great
    lawyer, 268. A student at the Inner Temple, 268. Associates with the
    popular leaders, 272. Extravagance and poverty, 272. Precocity, 272.
    Admitted to the bar, 273. Difficulties and energy, 273. Marriage, 274.
    Practises at the Old Bailey and London sessions, 275. His forensic
    abilities, 275. Common serjeant of the city of London, 276. His
    contrivances to get on, 277. Opens a communication with the court,
    278. Recorder of London, 279. Repudiates the liberals, 280. His policy
    as to the Popish Plot, 282. His sentences of death, 282. Conduct in a
    libel case, 283. Made chief justice of Chester, 284. His overbearing
    insolence, 285. Visits his father, 287. Proceedings against him in
    Parliament, 287. Resigns his recordership, 288. Complimented by the
    king, 289. Chairman of the Middlesex sessions, 289. Counsel for the
    crown against Fitzharris, Plunkett, and College, 290. Takes part in
    other Court prosecutions, 292. Rye house trials, 294. Appointed chief
    justice, 298. Trial of Algernon Sidney, 298. Case of Sir Thomas
    Armstrong, 300. Of Sir William Williams, 301. Charters fall like
    Jericho, 302. Other trials before him, 303. Rules London with a rod of
    iron, 303. Reappointed chief justice by James II., 304. Trial of Titus
    Oates for perjury, 304. Baxter's trial, 305. Jeffreys raised to the
    peerage, 308. He rivals North, 310. His bloody assize, 310. Lady
    Lisle's trial, 311. Other incidents of the bloody assize, 314.
    Proceedings at Bristol, 319. In Somersetshire, 322. Prideaux's case,
    323. An apologist for Jeffreys, 323. Tutchin's case, _note_, 323.
    James or Jeffreys? 324. Made lord chancellor, 326. Hangs an alderman,
    328. Meeting of Parliament, 329. Scheme of dispensing with the test
    act, 330. Opinions of the judges in favor of the dispensing power,
    332. Embassy to the pope, 333. Court of High Commission revived, 333.
    Its proceedings, 334. Lord Delamere's trial, 334. Proceedings against
    the Fellows of Magdalen College, 337. Prosecution of the seven
    bishops, 338. Rivals of Jeffreys, 341. Birth of the Pretender, 342.
    William of Orange lands in England, 343. James attempts
    reconciliation, 344. Advance of William, 345. James flies, 347. Terror
    of Jeffreys, 348. Search for him, 349. His arrest, 351. Committed to
    the Tower, 353. James seeks to make him a scapegoat, 355. Assailed by
    the press, 356. Presented with a halter, 356. Petition against him,
    357. His death, 358. Domestic life, 359. His descendants, 359. Person
    and manners, 359. Merits as a civil judge, 360. Chancery reforms, 361.
    His opinion in favor of allowing counsel to prisoners, 362. His infamy
    deserved, 363.

CHAPTER XVI.

ROBERT WRIGHT.

    His parentage, youth, vices, and marriage, 364. His practice, 365. His
    pecuniary embarrassments and frauds, 365. Becomes a favorite of
    Jeffreys, 366. Who makes him a judge, 368. Attends Jeffreys in his
    bloody assize, 368. Made chief justice, 369. Orders an illegal
    execution, 370. Aids in forcing Catholic fellows on Magdalen College,
    371. Sits in the Court of High Commission, 373. Volunteers an
    extrajudicial opinion in favor of the Declaration of Indulgence, 374.
    Attempts to force it to be read at Serjeant's Inn Chapel, 374. Trial
    of the seven bishops, 374. At first unmolested after William of Orange
    lands, 386. Arrested, and dies in Newgate, 386. His profligacy, 387.
    Necessity of exposing wicked judges, 387.

APPENDIX.--CASE OF PASSMORE WILLIAMSON, 389-432




INTRODUCTION


Hume observes, in his History of England, that "among a people who lived
in so simple a manner as the Anglo-Saxons, the judicial power is always of
greater importance than the legislative." The same comparison will hold
good even in communities far more advanced in civilization than the
Anglo-Saxons. It has indeed been well said that the great end of the
complicated machinery of the existing British government is to get twelve
men into a jury box. It might even be laid down as a general principle
that the freedom or servitude of a people will mainly depend upon the sort
of administration of justice which they have--especially of criminal
justice.

The whole course of British history will serve to justify this
observation, since it has not been so much by the aid of mercenary
soldiers, as by the assistance of lawyers and judges, that tyranny has
sought to introduce itself into that country. It is in the history of the
English courts, still more than in the history of the English Parliament,
that we are to trace the origin and growth of those popular rights and of
that idea of public liberty, propagated from England to America, and upon
which our Anglo-American free institutions are mainly founded.

The origin of British liberty, by an ancient, constant, and affectionate
tradition, has uniformly been traced back to the times of the
Anglo-Saxons. It was, however, by judicial, far more than by legislative
institutions, that among those progenitors of ours private rights and
public liberty were guarantied.

The smallest political subdivision among the Anglo-Saxons was the tything,
(_teothing_,) consisting of ten families, the members of which were
responsible for the good conduct of each other. The head man of this
community, denominated tything-elder, (_teothing ealdor_,) seems to have
acted as a kind of arbitrator in settling disputes about matters of a
trifling nature; but whether he had actually a court for administering
justice does not appear. Next in order came the hundred, (_hundrede_,) or,
as it was called in the north of England, the _wapentake_, in its original
constitution consisting of ten tythings, or a hundred families, associated
together by a similar bond of mutual responsibility. Its head man was
called the hundred's elder, (_hundredes ealdor_,) or simply reeve,
(_gerefa_,) that being the generic term for the officer of any district,
or indeed for any officer.[1] This gerefa, along with the bishop of the
diocese, acted as the presiding officer of the hundred court, which met
once at least every month, and had both civil and criminal jurisdiction,
and cognizance also of ecclesiastical causes, which were entitled to
precedence over every other business.

There was besides a shire or county court (_shir-gemot_) held twice every
year, or oftener if occasion required, convened by the sheriff,
(_shir-reeve_,) or, as he was sometimes also called, the alderman,
(_ealdor-man_,) who presided over it, assisted by the bishop. Here causes
were decided and business was transacted which affected the inhabitants of
several of the hundreds.

The highest court of all was that of the king, the Wittenagemot,
(_witan-gemot_,) in which he himself was present, attended by his
councillors, or _witan_. This body, which united the functions of a
legislative, judicial, and executive council, had no fixed times or place
of meeting, but was held as occasion required, wherever the king happened
to be. As to its judicial functions, it was in general only a court of
extraordinary resort; it being a rule of the Anglo-Saxon law that none
should apply for justice to the king unless he had first sought it in vain
in the local courts.[2]

Hence the hundred and county courts occupied by far the most conspicuous
position in the Anglo-Saxon judicial polity. The Anglo-Saxon shires, it
may be observed, having been originally principalities, nearly, if not
altogether, independent, but gradually united into one kingdom, were
rather tantamount to our Anglo-American states than to our counties, of
which the Saxon hundreds may be taken as the equivalent; the tythings
corresponding to our Anglo-American townships; while (to carry out the
parallel) the central authority of the king and the wittenagemot may be
considered as represented by our federal system generally.

But though the reeve and the bishop presided in the local Anglo-Saxon
courts, it was rather in the character of moderators than of judges; that
latter function being performed by the freeholders of the county, all of
whom, not less than the bishop and the reeve, had the right and were bound
to give their attendance at these courts.

"Suits," says Hume,[3] "were determined in a summary manner, without much
pleading, formality, or delay, by a majority of voices;[4] and the bishop
and alderman had no further authority than to keep order among the
freeholders, and interpose with their opinion."

These county courts, though traces of them are to be found in all the old
Teutonic states of Europe, became ultimately peculiar to England. None of
the feudal governments of continental Europe had any thing like them; and
Hume, with his usual sagacity, has remarked that perhaps this institution
had greater effects on the political system of England than has yet been
distinctly pointed out. By means of this institution, all the freeholders
were obliged to take a share in the conduct of affairs. Drawn from that
individual and independent state, so distinctive of the feudal system, and
so hostile to social order and the authority of law, they were made
members of a political combination, and were taught in the most effectual
manner the duty and advantages of civic obedience by being themselves
admitted to a share of civic authority. Perhaps, indeed, in this
Anglo-Saxon institution of hundred and county courts we are to seek the
origin of that system of local administration and self-government still
more fully carried out in America than in England, by which English and
Anglo-American institutions are so strongly distinguished from those of
Europe, and in the judicious combination of which with a central
administration, for matters of general concern, British and American
liberty, as a practical matter, mainly consists.

One of the first procedures of the Norman Conqueror, by way of fixing his
yoke upon the shoulders of the English people, was gradually to break down
and belittle this local administration of justice. He did not venture,
indeed, to abolish institutions so venerable and so popular, but he
artfully effected his purpose by other means. He began by separating the
civil and ecclesiastical jurisdictions. The bishops, according to a
fashion recently introduced on the continent, were authorized to hold
special courts of their own. These courts were at first limited to cases
in which ecclesiastical questions were involved, or to which clergymen
were parties but by the progress of an artful system of usurpations,
familiar to the courts of all ages and nations, they gradually extended
their authority to many purely lay matters, under pretence that there was
something about them of an ecclesiastical character. It was under this
pretence that the English ecclesiastical courts assumed jurisdiction of
the important matters of marriage and divorce, of wills, and of the
distribution of the personal property of intestates--a jurisdiction which
they still retain in England, and which, though we never had any
ecclesiastical courts in the United States of America, has left deep
traces upon our law and its administration as to these subjects.

In establishing these separate ecclesiastical courts, the Conqueror made a
serious departure from his leading idea of centralization; and he thereby
greatly contributed to build up a distinct theocratic power, which
afterwards, while intrenching on the rights of the laity, intrenched also
very seriously on the authority of his successors on the throne. But this
was a danger which either he did not foresee--since he possessed, though
his next successor relinquished it, the sole power of appointing
bishops--or which he overlooked in his anxiety to diminish the importance
of the old Saxon tribunals.

Both the civil and criminal authority of the local courts was greatly
curtailed. Their jurisdiction in criminal cases was restricted to small
matters, and even as to questions of property was limited to cases in
which the amount in dispute did not exceed forty shillings; though,
considering the superior weight of the shilling at that time, the greater
comparative value in those ages of the precious metals, and the poverty of
the country, this was still a considerable sum.

The general plan for the administration of justice of the Anglo-Norman
government was a court baron in each of the baronies into which the
kingdom was now parcelled out, to decide such controversies as arose
between the several vassals or subjects of the same barony. Hundred courts
and county courts still continued from the Saxon times, though with
restricted authority, to judge between the subjects of different baronies;
and a court composed of the king's great officers to give sentence among
the barons themselves. Of this court, which ultimately became known as
_Curia Regis_, (King's Court,) and sometimes as _Aula Regis_, (King's
Hall,) because it was held in the hall of the king's palace, and of its
instrumentality in extending the royal authority, Hume[5] gives the
following account: "The king himself often sat in his court, which always
attended his person: he there heard causes and pronounced judgment; and
though he was assisted by the advice of the other members, it is not to be
imagined that a decision could easily be obtained contrary to his
inclination or opinion.[6] In the king's absence, the chief justiciary
presided, who was the first magistrate of the state, and a kind of
viceroy, on whom depended all the civil affairs of the kingdom.[7] The
other chief officers of the crown, the constable, marshal, seneschal, or
steward, chamberlain, treasurer, and chancellor, were members, together
with such feudal barons as thought proper to attend, and the barons of the
exchequer, who at first were also feudal barons appointed by the king.
This court, which was sometimes called the King's Court, sometimes the
Court of Exchequer, judged in all causes, civil and criminal, and
comprehended the whole business which is now shared out among four
courts--the Chancery, the King's Bench, the Common Pleas, and the
Exchequer.

"Such an accumulation of powers was itself a great source of authority,
and rendered the jurisdiction of the court formidable to all the subjects;
but the turn which judicial trials took soon after the conquest served
still more to increase its authority, and to augment the royal
prerogatives. William, among the other violent changes which he attempted
and effected, had introduced the Norman law into England, had ordered all
the pleadings to be in that tongue, and had interwoven with the English
jurisprudence all the maxims and principles which the Normans, more
advanced in cultivation, and naturally litigious, were accustomed to
observe in the administration of justice.

"Law now became a science,[8] which at first fell entirely into the hands
of the Normans, and even after it was communicated to the English,
required so much study and application that the laity of those ignorant
ages were incapable of attaining it, and it was a mystery almost solely
confined to the clergy, and chiefly to the monks.

"The great officers of the crown, and the feudal barons who were military
men, found themselves unfit to penetrate into these obscurities; and
though they were entitled to a seat in the supreme judicature, the
business of the court was wholly managed by the chief justiciary and the
law barons, who were men appointed by the king, and entirely at his
disposal. This natural course of things was forwarded by the multiplicity
of business which flowed into that court, and which daily augmented by the
appeals from all the subordinate judicatures of the kingdom. For the great
power of the Conqueror established at first in England an authority which
the monarchs in France were not able to attain till the reign of St.
Louis, who lived near two centuries after: he empowered his court to
receive appeals both from the courts of barony and the county courts, and
by that means brought the administration of justice ultimately into the
hands of the sovereign.[9]

"And lest the expense or trouble of the journey to court should discourage
suitors and make them acquiesce in the decision of the inferior
judicatures, itinerant judges were afterwards established, who made their
circuits through the kingdom and tried all cases that were brought before
them. By this expedient the courts of barony were kept in awe, and if they
still preserved some influence it was only from the apprehensions which
the vassals might entertain of disobliging their superior by appealing
from his jurisdiction. But the county courts were much discredited and as
the freeholders were found ignorant of the intricate principles and forms
of the new law, the lawyers gradually brought all business before the
king's judges, and abandoned that convenient, simple, and popular
judicature."

The innovations of the Conqueror and his successors having reduced the old
local Anglo-Saxon tribunals to comparative insignificance, the whole
judicial authority, except that which had been seized upon by the
ecclesiastical courts, remained for a hundred and fifty years after the
conquest concentrated in the Aula Regis. But as Norman and Saxon became
thoroughly intermixed, with the first faint dawn of modern English liberty
the judicial power thus thoroughly centralized became again subdivided and
distributed, though in a manner very different from that of the Saxon
times.

The Anglo-Norman kings of England were perpetually on the move: the only
way of disposing of the products of the landed estates which scattered
over England afforded the main part of the royal revenue, was to go
thither with the royal household and consume it on the spot. Wherever the
king went, the Aula Regis followed, occasioning thereby great
inconvenience and delay to suitors. This was complained of as a grievance,
and the barons who extorted Magna Charta from their reluctant sovereign
insisted, among other things, that _Common Pleas_, that is, civil suits
between man and man, should be held in some certain place. It was in this
provision of Magna Charta that originated the English Court of Common
Pleas, which became fixed at Westminster Hall, the place of session of the
Aula Regis when the king was in the vicinity of London. This Court of
Common Pleas, or Common Bench as it was sometimes called, seems to have
been at first but a mere committee of the Aula Regis; and the
disintegration of that tribunal, thus begun, was, on the accession of
Edward I. in 1272, completed by its resolution into three or rather five
distinct tribunals.

Of these new courts, that which more immediately represented the Aula
Regis was the Court of King's Bench, which still continued to follow the
king and to be held in his presence. In the language of its process, such
is still supposed to be the case; but like the other English courts, it
has long since been fixed at Westminster Hall, and admits nobody to
participate in its proceedings save its own members--a chief justice, who,
though of inferior position in point of precedence, may be considered as
in some respects the successor of the chief justiciary, which office was
now abolished--and three or four puisne judges, the number having varied
at different times.

The Court of Common Pleas was now also organized like the King's Bench,
with a chief justice and three or four puisne judges. As this court had
exclusive jurisdiction of civil suits, (except those relating to marriage,
divorce, wills, tithes, and the distribution of the personal property of
intestates, which had been usurped by the ecclesiastical courts,) _Pleas
of the Crown_, that is, the criminal jurisprudence of the realm, (except
prosecutions for heresy, of which the ecclesiastical courts claimed
jurisdiction,) and also the hardly less important duty of superintending
the other tribunals, even the Common Pleas itself, and keeping them within
their due limits, was assigned to the King's Bench.

To a third court, that of Exchequer, of which, besides a chief baron and
three or four puisne barons, the treasurer and the chancellor of the
exchequer originally formed a part, were assigned all cases touching the
king's revenue, and especially the collection of debts due to him, in
which light were regarded not only all fines, forfeitures, and feudal
dues, but the imposts and aids occasionally granted by Parliament.

There was also a Court of Chivalry or "Honor Court," presided over by the
constable and marshal, and having jurisdiction of all questions touching
rank and precedency; and another, over which the steward of the household
presided, to regulate the king's domestic servants; but these courts,
which have long since vanished, could never be considered as having stood
on a par with the three others, the judges of which esteemed themselves
the grand depositaries of the knowledge of the common or unwritten law of
England; that is, of such customs and forms as had obtained the force of
law previous to the existence of the regular series of statutes beginning
with Magna Charta. Indeed, these judges of England, as they were called,
were in the habit of meeting together in the Exchequer Chamber, for the
purpose of hearing arguments on law points of importance or difficulty,
adjourned thither for their consideration, and which they decided by a
majority of their whole number present, thus presenting down to the recent
abolition, or rather modification, of the Court of Exchequer Chamber, a
shadow, as it were, of the ancient Aula Regis.

Already, previous to this fracture of the Aula Regis into the various
courts above named, the legal profession, so far as practice in the lay
courts was concerned, had begun to separate itself from the clerical; and
places for the education and residence of a class of laymen who began to
devote themselves to the study of the common law were established in the
vicinity of Westminster Hall. Of these, Lincoln's Inn, founded at the
commencement of the reign of Edward II., (about A. D. 1307,) under the
patronage of William Earl of Lincoln, who gave up his own hostel or town
residence for that purpose, was the earliest, and has always remained the
principal. On this model were established before long the Inner and Middle
Temple, (so called because a residence of the Knights Templars, forfeited
by the dissolution of that order, had been devoted to this purpose,)
Gray's Inn, Serjeant's Inn, and the Inns of Chancery.

Such was the origin of the profession of law as it still exists in England
and America; of that body of lawyers whence all our judges are taken,
arrogating to itself, after the example of the churchmen, of which it
originally consisted, a certain mystical enlightenment and superiority,
scouting the idea that the laity, as the lawyers too affect to distinguish
all persons not of their cloth,--in plain English, _the people_,--should
presume to express or to entertain any independent opinion upon matters of
law, or that any body not a professional lawyer can possibly be qualified
for the comprehension, and much less for the administration, of justice.

In the Anglo-Saxon courts the parties had appeared personally, and
pleadings had been oral. The Anglo-Norman practice gave rise to appearance
by attorney in all civil cases, and to that system of special written
pleadings, prepared by counsel learned in the law, of which the operation
was to give the victory to ingenuity and learning rather than to right,
and which, after undergoing many modifications, has at length been
abolished in many of our Anglo-American states, as an impediment to
justice and an intolerable nuisance. Even in conservative England itself,
though the system of special pleadings, greatly modified by modern
changes, still exists, the recent return, by the examination of the
parties, to the old popular system of oral pleading has been attended by
the happiest results.

The preparation of these written pleadings, by which we are here to
understand not arguments, but allegations of facts relied upon by the
respective parties, was engrossed by the serjeants at law, whose
distinguishing badge was a coif or velvet cap--wigs being a comparatively
modern invention. To obtain admittance into this order, by which the
entire practice of the Court of Common Pleas was engrossed, (that is,
originally, the entire practice in civil suits,) and from which the judges
were exclusively selected, sixteen years' study was required. The degree
of barrister, or, as it was called, of apprentice, might be obtained by
seven years' study; and it was to these two classes of serjeants and
apprentices that the practice in the courts of Westminster Hall was
originally confined.[10] But subsequently there sprang up a third inferior
and still more numerous class, called attorneys, a sort of middle-men
between the client and his counsel, not permitted to speak in court, for
which purpose they must retain a serjeant or barrister, but upon whom was
shifted off all the drudgery and responsibility of preparing the case, in
which, however, no step of consequence could be taken without the advice
of counsel learned in the law, _i. e._, a serjeant or barrister.[11]

As the law and its practice thus became more and more a mystery, only to
be learned by frequenting the courts of Westminster Hall, and by the study
of the obscure and ill-prepared reports of their proceedings, which began
now to be compiled by official reporters, and published under the name of
Year Books, the old local Anglo-Saxon courts fell still more into
contempt. Already in the reign of Henry III. the freeholders had been
released from their obligation of attendance upon them, and another blow
was given to these ancient tribunals when, in the reign of Edward II., the
appointment of sheriffs, hitherto chosen by the freeholders, was assumed
by the crown; and still another when, in the following reign, the election
of conservators of the peace was also taken from the people and assumed by
the king. To the magistrates thus appointed by the king the new name of
Justices of the Peace was soon afterwards given, and the criminal
jurisdiction conferred upon them, whether acting singly as examining and
committing magistrates, or met together at the courts of Quarter Sessions,
gradually superseded the small remains of criminal authority hitherto left
to the old popular tribunals.

Two circumstances, however, combined to transfuse a certain portion of the
spirit of these old tribunals into the newly established courts, thus
standing in the way of the entire monopoly of the administration of
justice at which the lawyers aimed, and securing to the body of the people
a certain participation in the most important function of the government,
to wit, the administration of justice; which participation, derived from
the old Anglo-Saxon customs, and transmitted to our times, constitutes
to-day the main pillar of both British and American liberty.

Contemporaneously with the new organization above described of the courts
of common law, the British Parliament had taken upon itself that
organization which it still retains--an upper house, (House of Lords,)
composed of great nobles and bishops,[12] successor of the Anglo-Saxon
Wittenagemote and of the Anglo-Norman Great Council, and a lower house,
(House of Commons,) in which met together the elected representatives of
the smaller landed proprietors, holding by knight's service immediately of
the crown, (knights of the shire,) together with the newly-admitted
representatives of the cities and chief towns, (burgesses.) The Parliament
thus constituted claimed and exercised, probably as successor of the
Wittenagemote, appellate jurisdiction from the decisions of all the courts
of law. In the time of Edward III. it was even a common practice for the
judges, when any question of difficulty arose in their several courts, to
take the advice of Parliament on it before giving judgment. Thus in a case
mentioned in the Year Book, 40 Ed. III., Thorpe, chief justice of the
King's Bench, went with another judge to the House of Lords, to inquire
the meaning and effect of a law they had just passed for amending the
system of pleadings;[13] and many other instances occur of the same sort.

This appellate power vesting in Parliament from the decisions of all the
courts was the first of the circumstances above alluded to as serving to
prevent the monopoly of the administration of justice by the lawyers. But
this check with the process of time has almost entirely disappeared. In
England this appellate power in Parliament has long since fallen into the
hands exclusively of the House of Lords, who themselves in giving judgment
are ordinarily only the mouthpiece of the judges called in to give their
advice. In what are now the United States of America the same appellate
jurisdiction was originally exercised by the colonial assemblies. With
us, however, it has entirely vanished under the influence of the idea of a
total separation of the legislative, executive, and judicial functions.

The other, and by far the most important check upon the monopoly of the
lawyers, was the introduction and gradual perfecting of the trial by jury,
by which the more ancient methods--the compurgation and ordeal of the
Anglo-Saxons, and the trial by battle, the favorite method of the
Anglo-Normans--were entirely superseded. The history of the trial by jury
is exceedingly obscure. The petit jury may, however, be traced back to the
old Anglo-Saxon method of trial by compurgation, the jury in its origin
being only a body of witnesses drawn from the vicinage, who founded their
verdict not upon the evidence of witnesses given before them, but upon
their own personal knowledge of the matters in dispute.[14]

The grand jury seems to have originated in the old Anglo-Saxon custom
imbodied in one of the laws of Ethelred, by which was imposed upon the
twelve senior thanes of every hundred the duty of discovering and
presenting the perpetrators of all crimes within their district--a custom
revived by the constitution of Clarendon, enacted A. D. 1164, by which
twelve lawful men of the neighborhood were to be sworn by the sheriff, on
the requisition of the bishop, to investigate all cases of suspected
criminality as to which no individual dared to make an accusation. At
first this accusing jury seems also to have served the purpose of a jury
of trial. In what way the grand jury came to be separated from the petit
jury, and how the former came to be increased to a number not exceeding
twenty-three, of whom at least twelve must concur in order to find an
indictment, is a point which still remains for the investigation of legal
antiquaries.[15]

The trial by jury, though of the progress of its development little is
known, appears to have taken on substantially its existing form, both in
civil and criminal cases, nearly contemporaneously with the new
organization of the English courts, with the rise of the legal profession
as distinct from that of the clergy, and with the commencement of the
series of English statutes and law reports--all of which, as well as the
existing constitution of the British House of Commons, may be considered
as dating from the accession of Edward I., A. D. 1272, or somewhat less
than six hundred years ago. In certain cases of great importance this
trial took place and still takes place in bank, as it is called; that is,
in Westminster Hall, before all the judges of the court in which the suit
is pending;[16] but in general, the trial is had in the county in which
(if a criminal case) the offence had been committed, or (if a civil case)
in which the venue is laid, before certain commissioners sent into the
counties for that purpose, and who, under the new system, were the
successors of the justices in eyre, or itinerant justices, who had formed
a part of the ancient Aula Regis. Originally, separate commissions appear
to have issued for criminal and civil cases--for the former a commission
of oyer and terminer, (to hear and determine,) and of general jail
delivery; and for the latter a commission of assize, so called from the
name of a peculiar kind of jury trial introduced as a substitute for trial
by battle, in real actions, that is, pleas relating to land, villainage,
and advowsons. In the times in which land, villains, and the right of
presentation to parishes, constituted the chief wealth, these real actions
constituted also the chief business of the Common Pleas, which then had
exclusive jurisdiction of civil controversies; but to this commission of
assize was annexed another, called a commission of _nisi prius_,
authorizing the commissioners to try all questions of fact arising in any
of the courts of Westminster. This latter commission was so called because
the writ issued to the sheriff of the county in which the cause of action
was alleged to have originated, to summon a jury to try the case, directed
such jury to be summoned to appear at Westminster on a day named, unless
before (in Latin, _nisi prius_) that day commissioners should come into
the county to try the case there. Hence the term _nisi prius_ employed by
lawyers to designate a trial by jury before one or more judges,
commissioned to hold such trials within certain circuits, but whose
directions to the jury, and other points of law decided by them in the
course of the trial, are liable afterwards to be reviewed by the whole
bench.

Ultimately these commissions for both criminal and civil trials were given
to the same persons, who also received a commission of the peace; and the
whole territory of England being divided into six circuits, two of the
judges, to whom other assessors were added, held assizes twice a year in
each county,[17] for the trial of issues found in Westminster Hall--a
system closely imitated in all our American states.

But the distribution of authority above described as having been
originally made to the different courts of Westminster Hall, into which
the Aula Regis was divided, did not long remain undisturbed. Courts have
at all times, and every where, exhibited a great disposition to extend
their jurisdiction, of which we have already had an example in the
authority over marriages, wills, and the personal property of intestates,
assumed by the English ecclesiastical courts; and considering the double
jurisdiction under which we citizens of the United States live,--that of
the federal and that of the state courts,--and the disposition so strongly
and perseveringly exhibited by the federal courts to enhance their
authority, while the state courts continue to grow weaker and tamer, this
is, to us, a subject of no little interest.

Besides the general love of extending their jurisdiction characteristic of
all courts, and indeed only one of the manifestations of the universal
passion for power, the English Courts of King's Bench and Exchequer had a
special motive for seeking to encroach on the exclusive civil jurisdiction
of the Common Pleas. The salaries of the judges were very
small--originally only sixty marks, equal to £40 sterling, or about $200
a year; nor was their amount materially increased down to quite recent
times; but to this small salary were added fees paid by the parties to the
cases tried before them; and the judges of the two other courts were very
anxious to share with their brethren of the Common Pleas a part of the
rich harvest which their monopoly of civil cases enabled them to reap from
that source. Not only did the Court of King's Bench start the idea that
all suits in which damages were claimed for injuries to person or
property, attended by violence or fraud, came properly within its
jurisdiction as "savoring of criminality;" it found another reason for
extending its jurisdiction, by suggesting that when a person was in the
custody of its officers, he could not, with a due regard to "legal
comity," be sued on any personal claim in any other court, since that
might result in his being taken out of the hands of their officer who
already had him in custody, and was entitled to keep him. If any body had
any claim against such a person, (such was the position plausibly set up,)
it ought to be tried before the court in whose custody he already was.
Having thus prepared the way, the Court of King's Bench did not stop here;
but by a fiction, introduced into the process with which the suit was
commenced, that the defendant was already in the custody of their marshal
for a fictitious trespass which he was not allowed to deny, jurisdiction
was gradually assumed in all private suits except real actions.

The Court of Exchequer in like manner claimed exclusive jurisdiction of
suits for debt brought by the king's debtors, since by neglecting to pay
them they might be prevented from paying their debts to the king; and
under the pretence, which nobody was allowed to dispute, that all
plaintiffs were the king's debtors, that court, too, gave an extent to
their jurisdiction similar to that of the King's Bench. The exclusive
jurisdiction of real actions, which alone remained to the Common Pleas, by
the disappearance of villainage and the great increase of personal
property, every day declined in importance; but even this was at last
taken from the Common Pleas by the invention of Chief Justice Rolle,
during the time of the Commonwealth, of the action of ejectment, which
proceeds from beginning to end upon assumptions entirely fictitious, but
which by its greater convenience entirely superseded real actions in
England and in most of the Anglo-American States.

But while these three common law courts were thus exercising their
ingenuity to intrench upon each other's jurisdiction, their pertinacious
adherence to powers and technicalities, and their unwillingness, except in
matters where the alleged prerogative of the crown was concerned, to do
any thing not sanctioned by precedent, led them to refuse justice or
relief to private suitors in many crying cases. Such cases still continued
to be brought by petition before the king, and by him were referred to his
chancellor, who in the earlier times was commonly his confessor, and who
since the abolition of the office of chief justiciary had become the first
official of the realm. Undertaking in these cases to prevent a failure of
justice by rising above the narrow technicalities of the common law, and
guided by the general principles of equity and good conscience, the
chancellor gradually assumed a most important jurisdiction, which in civil
matters ultimately raised his court to a rank and importance above that of
all the others. With the advance indeed of wealth and civilization,
appeals to chancery became more and more frequent; and if the common law
courts had not altered their policy, and adopted upon many points
equitable ideas, it seems probable that so far as civil suits were
concerned, those courts would long since have been superseded
altogether.[18] What indeed of and the practice in the Equity Court
entirely into the hands of lawyers bred in Westminster Hall, by whom
equity itself was made subservient to precedent, and the whole procedure
involved in forms and technicalities even more dilatory and expensive than
those of the common law courts.

The same disinclination on the part of these common law courts to go
beyond the strict limit of technical routine, led, with the progress of
commerce and navigation, to the erection, in the time of Edward III., of
the Admiralty Court, mainly for the trial of injuries and offences
committed on the high seas, of which, on technical grounds, the courts of
common law declined to take jurisdiction. After the foundation of English
colonies,[19] branches of this court, to which also was given an exchequer
jurisdiction, were established in the colonies, and on that model have
been formed our federal District Courts.

While the common law courts, through their preference of technicalities to
justice, thus enabled the chancellors to assume a civil jurisdiction by
which they themselves were completely overshadowed, driving the Parliament
also to the necessity of creating, for both civil and criminal matters, a
new Court of Admiralty,[20] they gave at the same time the support of
their acquiescence and silence to other innovations, prompted not by
public convenience, but by the very spirit of tyranny.

In every reign, at least from the time of Henry VI. down to that of
Charles I., torture to extort confessions from those charged with state
crimes was practised under warrants from the Privy Council. In the year
1615, by the advice of Lord Bacon, then attorney general, the lustre of
whose philosophical reputation is so sadly dimmed by the infamy of his
professional career, torture of the most ruthless character was employed
upon the person of Peacham, a clergyman between sixty and seventy years of
age, to extort confessions which might be used against him in a trial for
treason, as to his intentions in composing a manuscript sermon not
preached nor shown to any body, but found on searching his study, some
passages of which were regarded as treasonable, because they encouraged
resistance to illegal taxes. Thirteen years afterwards, when it was
proposed to torture Fenton, the assassin of Villiers, Duke of Buckingham,
to extort from him a confession of his accomplices, the prisoner suggested
that if tortured he might perhaps accuse Archbishop Laud himself. Upon
this, some question arose as to the legality of torture; and the judges
being called upon for their advice, thus at length driven to speak,
delivered a unanimous opinion that the prisoner ought not to be tortured,
because no such punishment was known or allowed by the English law; which
English law, it now appeared, had for two hundred years been
systematically disregarded under the eye and by the advice of judges and
sworn lawyers, members of the Privy Council, and without any protest or
interference on the part of the courts!

Another instance of similar acquiescence occurred in regard to the Court
of Chivalry, which in the reign of Charles I. undertook to assume
jurisdiction in the case of words spoken. Thus a citizen was ruinously
fined by that court because, in an altercation with an insolent waterman,
who wished to impose upon him, he deridingly called the swan on his badge
a "goose." The case was brought within the jurisdiction of the court, by
showing that the waterman was an earl's servant, and that the swan was the
earl's crest, the heavy fine being grounded on the alleged "dishonoring"
by the citizen of this nobleman's crest. A tailor, who had often very
submissively asked payment of his bill from a customer of "gentle blood"
whose pedigree was duly registered at the herald's college, on a threat of
personal violence for his importunity, was provoked into saying that "he
was as good a man as his debtor." For this offence, which was alleged to
be a levelling attack upon the aristocracy, he was summoned before the
earl marshal's court, and mercifully dismissed with a reprimand--_on
releasing the debt_!

No aid could be obtained from the common law courts against this
scandalous usurpation, by which, without any trial by jury, enormous
damages were given.[21] Legal "comity" perhaps prevented any interference.
Presently, however, the long Parliament met, and a single resolution of
that body stopped forever this usurpation.

But while a scrupulous adherence to technicalities and to legal etiquette
prevented the common law courts, on the one hand, from doing justice in
private cases, and on the other from guarding the subject against official
injuries and usurpations, they showed themselves, as the following
biographies will prove, the ready and willing tools on all occasions of
every executive usurpation. If the people of Great Britain and America are
not at this moment slaves, most certainly, as the following biographies
will prove, it is not courts nor lawyers that they have to thank for it.

How essential to liberty is the popular element in the administration of
criminal law--how absolutely necessary is the restraint of a jury in
criminal cases--was most abundantly proved by the proceedings of the
English courts of Star Chamber and High Commission. The Court of Star
Chamber, though of very ancient origin, derived its chief importance from
statutes of Henry VII. and Henry VIII., by which it was invested with a
discretionary authority to fine and imprison in all cases not provided for
by existing laws, being thus erected, according to the boasts of Coke and
Bacon, into a "court of criminal equity." The Court of High Commission,
whose jurisdiction was mainly limited to clergymen, was created by a
statute of Elizabeth as the depository of the ecclesiastical authority as
head of the church assumed after the reformation by the English
sovereigns. Both these courts consisted of high officers of the crown,
including judges and crown lawyers; and though not authorized to touch
life or member, they became such instruments of tyranny as to make their
abolition one of the first things done after the meeting of the Long
Parliament. The only American parallel to these courts is to be found in
the authority conferred by the fugitive act of 1850, upon certain
commissioners of the Circuit Court of the United States, to seize and
deliver over to slavery peaceable residents in their respective states,
without a jury, and without appeal.

History is philosophy teaching by example. From what judges have attempted
and have done in times past, and in England, we may draw some pretty
shrewd conclusions as to what, if unchecked, they may attempt, and may do,
in times present, and in America. Nor let any man say that the following
pages present a collection of judicial portraits distorted and caricatured
to serve an occasion. They have been borrowed, word for word, from the
_Lives_ of the Chief Justices and of the Chancellors of England, by Lord
Campbell, himself a lawyer and a judge, and though a liberal-minded and
free-spoken man, by no means without quite a sufficient share of the
_esprit du corps_ of the profession. Derived from such a source, not only
may the facts stated in the following biographies be relied upon, but the
expressions of opinion upon points of law are entitled to all the weight
of high professional authority.

Nor let it be said that these biographies relate to ancient times, and can
have no parallelism, or but little, to the present state of affairs among
us here in America. The times which they include are the times of the
struggle in Great Britain between the ideas of free government and
attempts at the establishment of despotism; and that struggle is precisely
the one now going on among us here in America, with this sole difference,
that over the water, among our British forefathers, it was the despotism
of a monarch that was sought to be established; here in America, the
despotism of some two hundred thousand petty tyrants, more or less, in the
shape of so many slaveholders, who, not content with lording it over their
several plantations, are now attempting, by combination among themselves,
and by the aid of a body of northern tools and mercenaries, such as
despots always find, to lord it over the Union, and to establish the
policy of slaveholding as that of the nation. In Great Britain, the
struggle between despotism and free institutions closed with the
revolution of 1688, with which these biographies terminate. Since that
time the politics of that country have consisted of hardly more than of
jostlings between the Ins and the Outs, with no very material variance
between them in their social ideas. Among us the great struggle between
slaveholding despotism and republican equality has but lately come to a
head, and yet remains undetermined. It exhibits, especially in the conduct
of the courts and the lawyers, many parallels to the similar struggle
formerly carried on in Great Britain. That struggle terminated at last
with the deposition and banishment of the Stuart family, and the
reëstablishment in full vigor of the ancient liberties of England, as
embodied in the Bill of Rights. And so may ours terminate, in the
reduction of those who, not content with being brethren seek to be
masters, to the republican level of equal and common citizenship, and in
the reëstablishment of emancipation, freedom, and the Rights of Man
proclaimed in our Declaration of Independence, as the national and eternal
policy of these United States!




ATROCIOUS JUDGES.




CHAPTER I.

ROGER LE BRABACON.


Roger le Brabacon,[22] from the part he took in settling the disputed
claim to the crown of Scotland, is an historical character. His ancestor,
celebrated as "the great warrior," had accompanied the Conqueror in the
invasion of England, and was chief of one of those bands of mercenary
soldiers then well known in Europe under the names (for what reason
historians are not agreed) of Routiers, Cottereaux, or _Brabançons_.[23]
Being rewarded with large possessions in the counties of Surrey and
Leicester, he founded a family which flourished several centuries in
England, and is now represented in the male line by an Irish peer, the
tenth Earl of Meath. The subject of the present sketch, fifth in descent
from "the great warrior," changed the military ardor of his race for a
desire to gain distinction as a lawyer. He was regularly trained in all
the learning of "Essions" and "Assizes," and he had extensive practice as
an advocate under Lord Chief Justice de Hengham. On the sweeping removal
of almost all of the judges in the year 1290,[24] he was knighted, and
appointed a puisne justice of the King's Bench, with a salary--which one
would have thought must have been a very small addition to the profits of
his hereditary estates of 33_l._ 6_s._ 8_d._ a year. He proved a most
admirable judge;[25] and, in addition to his professional knowledge, being
well versed in historical lore, he was frequently referred to by the
government when negotiations were going on with foreign states.

Edward I., arbitrator by mutual consent between the aspirants to the crown
of Scotland, resolved to set up a claim for himself as liege lord of that
kingdom, and Brabacon was employed, by searching ancient records, to find
out any plausible grounds on which the claim could be supported. He
accordingly travelled diligently both through the Saxon and Norman period,
and--by making the most of military advantages obtained by kings of
England over kings of Scotland, by misrepresenting the nature of homage
which the latter had paid to the former for possessions held by them in
England, and by blazoning the acknowledgment of feudal subjection extorted
by Henry II. from William the Lion when that prince was in captivity,
without mentioning the express renunciation of it by Richard I.--he made
out a case which gave high delight to the English court. Edward
immediately summoned a Parliament to meet at Norham, on the south bank of
the Tweed, marched thither at the head of a considerable military force,
and carried Mr. Justice Brabacon along with him as the exponent and
defender of his new _suzeraineté_.

It is a little curious that one of these competitors for the Scottish
throne had lately been an English judge, and a competitor for the very
place to which Brabacon, for his services on this occasion, was presently
promoted.

From the time of William the Conqueror and Malcolm Canmore, until the
desolating wars occasioned by the dispute respecting the right of
succession to the Scottish crown, England and Scotland were almost
perpetually at peace; and there was a most familiar and friendly
intercourse between the two kingdoms, insomuch that nobles often held
possession in both, and not unfrequently passed from the service of the
one government into that of the other. The Norman knights, having
conquered England by the sword, in the course of a few generations got
possession of a great part of Scotland by marriage. They were far more
refined and accomplished than the Caledonian thanes; and, flocking to the
court of the Scottish kings, where they made themselves agreeable by their
skill in the tournament, and in singing romances, they softened the hearts
and won the hands of all the heiresses. Hence the Scottish nobility are
almost all of Norman extraction; and most of the great families in that
kingdom are to be traced to the union of a Celtic heiress with a Norman
knight. Robert de Brus, or Bruis, (in modern times spelt _Bruce_,) was one
of the companions of the Conqueror; and having particularly distinguished
himself in the battle of Hastings, his prowess was rewarded with no fewer
than ninety-four lordships, of which Skelton, in Yorkshire, was the
principal. Robert, the son of the first Robert de Brus, married early, and
had a son, Adam, who continued the line of De Brus of Skelton. But
becoming a widower while still a young man, to assuage his grief, he paid
a visit to Alexander I., then King of Scots, who was keeping his court at
Stirling. There the beautiful heiress of the immense lordship of
Annandale, one of the most considerable fiefs held of the crown, fell in
love with him; and in due time he led her to the altar. A Scottish branch
of the family of De Brus was thus founded under the designation of Lords
of Annandale. The fourth in succession was "Robert the Noble," and he
raised the family to much greater consequence by a royal alliance, for he
married Isabel, the second daughter of Prince David, Earl of Huntingdon,
grandson of David I., sometimes called St. David.

Robert, son of "Robert the Noble" and the Scottish princess, was born at
the Castle of Lochmaben, about the year 1224. The Skelton branch of the
family still flourished, although it became extinct in the next
generation. At this time a close intercourse was kept up between "Robert
the Noble" and his Yorkshire cousins; and he sent his heir to be educated
in the south under their auspices. It is supposed that the youth studied
at Oxford; but this does not rest on any certain authority. In 1245, his
father died, and he succeeded to the lordship of Annandale. One would have
expected that he would now have settled on his feudal principality,
exercising the rights of _furca et fossa_, or "pit and gallows," which he
possessed without any limit over his vassals; but by his English education
he had become quite an Englishman, and, paying only very rare visits to
Annandale, he sought preferment at the court of Henry III. What surprises
us still more is, that he took to the gown, not the sword; and instead of
being a great warrior, like his forefathers and his descendants, his
ambition seems to have been to acquire the reputation of a great lawyer.
There can be little doubt that he practised as an advocate in Westminster
Hall from 1245 till 1250. In the latter year we certainly know that he
took his seat on the bench as a puisne judge, or justiciar; and, from
thence till 1263, extant records prove that payments were made for assizes
to be taken before him--that he acted with other justiciars in the levying
of fines--and that he went circuits as senior judge of assize. In the 46th
year of Henry III. he had a grant of 40_l._ a year salary, which one would
have supposed could not have been a great object to the Lord of Annandale.
In the barons' wars, he was always true to the king; and although he had
no taste for the military art, he accompanied his royal master into the
field, and was taken prisoner with him at the battle of Lewes.

The royal authority being reëstablished by the victory at Evesham, he
resumed his functions as a puisne judge; and for two years more there are
entries proving that he continued to act in that capacity. At last, on the
8th of March, 1268, 52 Henry III., he was appointed "capitalis
justiciarius ad placita coram rege tenenda," (chief justiciary for holding
pleas before the king); but unless his fees or presents were very high, he
must have found the reward of his labors in his judicial dignity, for his
salary was very small. Hugh Bigod and Hugh le Despencer had received 1000
marks a year, "ad se sustentandum in officio capitalis justitiarii
Angliæ," (for sustaining themselves in the office of chief justice of
England,) but Chief Justice de Brus was reduced to 100 marks a year; that
is, 66_l._ 13_s._ 4_d._ Yet such delight did he take in playing the judge,
that he quietly submitted both to loss of power and loss of profit.

He remained chief justice till the conclusion of this reign, a period of
four years and a half, during which he alternately went circuits and
presided in Westminster Hall. None of his decisions have come down to us,
and we are very imperfectly informed respecting the nature of the cases
which came before him. The boundaries of jurisdiction between the
Parliament, the Aula Regis, and the rising tribunal afterwards called the
Court of King's Bench, seem to have been then very much undefined.

On the demise of the crown, Robert de Brus was desirous of being
reappointed. He was so much mortified by being passed over, that he
resolved to renounce England forever; and he would not even wait to pay
his duty to Edward I., now returning from the holy wars.

The ex-chief justice posted off for his native country, and established
himself in his castle of Lochmaben, where he amused himself by sitting in
person in his court baron, and where all that he laid down was, no doubt,
heard with reverence, however lightly his law might have been dealt with
in Westminster Hall. Occasionally he paid visits to the court of his
kinsman, Alexander III., but he does not appear to have taken any part in
Scottish politics till the untimely death of that monarch, which, from a
state of peace and prosperity, plunged the country into confusion and
misery.

There was now only the life of an infant female, residing in a distant
land, between him and his plausible claim to the Scottish crown. He was
nominated one of the negotiators for settling the marriage between her and
the son of Edward I., which, if it had taken place, would have entirely
changed the history of the island of Great Britain. From his intimate
knowledge both of Scotland and England, it is probable that the "Articles"
were chiefly of his framing, and it must be allowed that they are just and
equitable. For his own interest, as well as for the independence of his
native country, he took care to stipulate that, "failing Margaret and her
issue, the kingdom of Scotland should return to the nearest heirs, to whom
of right it ought to return, wholly, freely, absolutely, and without any
subjection."

The Maid of Norway having died on her voyage home, the ex-chief justice
immediately appeared at Perth with a formidable retinue, and was in hopes
of being immediately crowned king at Scone;--and he had nearly
accomplished his object, for John Baliol, his most formidable competitor
in point of right, always feeble and remiss in action, was absent in
England. But, from the vain wish to prevent future disputes by a solemn
decision of the controversy after all parties should have been heard, the
Scotch nobility in an evil hour agreed to refer it, according to the
fashion of the age, to the arbitration of a neighboring sovereign, and
fixed upon Edward I. of England, their wily neighbor. The Scottish nobles
being induced to cross the River Tweed, and to assemble in the presence of
Edward, under pretence that he was to act only as arbitrator, Sir Roger de
Brabacon by his order addressed them in French, (the language then spoken
by the upper classes both in Scotland and England,) disclosing the
alarming pretensions about to be set up.

A public notary and witnesses were in attendance, and in their presence
the assumed vassals were formally called upon to do homage to Edward as
their _suzerain_, of which a record was to be made for a lasting memorial.
The Scots saw too late the imprudence of which they had been guilty in
choosing such a crafty and powerful arbitrator. For the present they
refused the required recognition, saying that "they must have time for
deliberation, and to consult the absent members of their different
orders." Brabacon, after advising with the king, consented that they
should have time until the following day, and no longer. They insisted on
further delay, and showed such a determined spirit of resistance, that
their request was granted and the first day of June following was fixed
for the ceremony of the recognition. Brabacon allowed them to depart; and
a copy of his paper, containing the proofs of the alleged _superiority_
and _direct dominion_ of the English kings over Scotland, was put into
their hands. He then returned to the south, where his presence was
required to assist in the administration of justice, leaving the
Chancellor Burnel to complete the transaction. Although the body of the
Scottish nobles, as well as the body of the Scottish people, would
resolutely have withstood the demand, the competitors for the throne, in
the hopes of gaining Edward's favor, successively acknowledged him as
their liege lord, and their example was followed by almost the whole of
those who then constituted the Scottish Parliament.[26]

Bruce afterwards pleaded his own cause with great dexterity, and many
supposed that he would succeed. Upon the doctrine of _representation_,
which is familiar to us, Baliol seems clearly to have the better claim, as
he was descended from the eldest daughter of the Earl of Huntingdon: but
Bruce was one degree nearer the common stock; and this doctrine, which was
not then firmly established, had never been applied to the descent of the
crown.

When Edward I. determined in favor of Baliol, influenced probably less by
the arguments in his favor than by the consideration that from the
weakness of his character he was likely to be a more submissive vassal,
Robert de Brus complained bitterly that he was wronged, and resolutely
refused to acknowledge the title of his rival. He retired in disgust to
his castle of Lochmaben, where he died in November, 1295. While resident
in England, he had married Isabel, daughter of Gilbert de Clare, Earl of
Gloucester, by whom he had several sons. Robert, the son of Robert the
eldest, became Robert I. of Scotland, and one of the greatest of heroes.

When judgment had been given in favor of Baliol, Brabacon was still
employed to assist in the plan which had been formed to bring Scotland
into entire subjection. There being a meeting at Newcastle of the nobles
of the two nations, when the feudatory king did homage to his liege lord,
complaint was made by Roger Bartholomew, a burgess of Berwick, that
certain English judges had been deputed to exercise jurisdiction on the
north bank of the Tweed. Edward referred the matter to Brabacon and other
commissioners, commanding them to do justice according to the laws and
customs of his kingdom. A petition was then presented to them on behalf of
the King of Scotland, setting forth Edward's promise to observe the laws
and customs of that kingdom, and that pleas of things done there should
not be drawn to examination elsewhere. Brabacon is reported thus to have
answered:--

"This petition is unnecessary, and not to the purpose; for it is manifest,
and ought to be admitted by all the prelates and barons, and commonalty of
Scotland, that the king, our master, has performed all his promises to
them. As to the conduct of his judges, lately deputed by him as SUPERIOR
and DIRECT LORD of that kingdom, they only represent his person; he will
take care that they do not transgress his authority, and on appeal to him
he will see that right is done. If the king had made any temporary
promises when the Scottish throne was vacant, in derogation of his just
_suzeraineté_, by such promises he would not have been restrained or
bound."[27]

Encouraged by this language, Macduff, the Earl of Fife, entered an appeal
in the English House of Lords against the King of Scotland; and, on the
advice of Brabacon and the other judges, it was resolved that the
respondent must stand at the bar as a vassal, and that, for his contumacy,
three of his principal castles should be seized into the king's hands.

Although historians who mention these events designate Brabacon as "grand
justiciary," it is quite certain that, as yet, he was merely a puisne
judge; but there was a strong desire to _reward_ him for his services,
and, at last, an opportune vacancy arising, he was created chief justice
of the King's Bench.

Of his performances in this capacity we know nothing, except by the
general commendation of chroniclers; for the Year Books, giving a regular
account of judicial decisions, do not begin till the following reign.

On the accession of Edward II., Brabacon was reappointed chief justice of
the King's Bench, and he continued very creditably to fill the office for
eight years longer. He was fated to deplore the fruitless result of all
his efforts to reduce Scotland to the English yoke Robert Bruce being now
the independent sovereign of that kingdom, after humbling the pride of
English chivalry in the battle of Bannockburn.[28]

At last, the infirmities of age unfitting Brabacon for the discharge of
judicial duties, he resigned his gown; but, to do him honor, he was sworn
a member of the Privy Council, and he continued to be treated with the
highest respect till his death, which happened about two years
afterwards.




CHAPTER II.

ROBERT TRESILIAN.


We next come to a chief justice who actually suffered the last penalty of
the law--and deservedly--in the regular administration of retributive
justice--Sir Robert Tresilian--hanged at Tyburn.

I can find nothing respecting his origin or education, except a doubtful
statement that he was of a Cornish family, and that he was elected a
fellow of Exeter College, Oxford, in 1354. The earliest authentic notice
of him is at the commencement of the reign of Richard II., when he was
made a serjeant at law, and appointed a puisne judge of the Court of
King's Bench. The probability is, that he had raised himself from
obscurity by a mixture of good and evil arts. He showed learning and
diligence in the discharge of his judicial duties; but, instead of
confining himself to them, he mixed deeply in politics, and showed a
determination, by intrigue, to reach power and distinction. He devoted
himself to De Vere, the favorite of the young king, who, to the great
annoyance of the princes of the blood, and the body of the nobility, was
created Duke of Ireland, was vested for life with the sovereignty of that
island, and had the distribution of all patronage at home. By the
influence of this minion, Tresilian, soon after the melancholy end of Sir
John Cavendish,[29] was appointed chief justice of the King's Bench; and
he was sent into Essex to try the rebels. The king accompanied him. It is
said that, as they were journeying, "the Essex men, in a body of about
500, addressed themselves barefoot to the king for mercy, and had it
granted upon condition that they should deliver up to justice the chief
instruments of stirring up the rebellion; which being accordingly done,
they were immediately tried and hanged, ten or twelve on a beam, at
Chelmsford, because they were too many to be executed after the usual
manner, which was by beheading."

Tresilian now gained the good graces of Michael de la Pole, the lord
chancellor, and was one of the principal advisers of the measures of the
government, being ever ready for any dirty work that might be assigned to
him. In the year 1385, it was hoped that he might have got rid, by an
illegal sentence, of John of Gaunt, who had become very obnoxious to the
king's favorites. But the plot got wind, and the Duke, flying to
Pontefract Castle, fortified himself there till his retainers came to his
rescue.

In the following year, when there was a change of ministry, Tresilian was
in great danger of being included in the impeachment which proved the ruin
of the chancellor; but he escaped by an intrigue with the victorious
party, and he was suspected of having secretly suggested the commission
signed by Richard, and confirmed by Parliament, under which the whole
power of the state was transferred to a commission of fourteen barons. He
remained very quiet for a twelvemonth, till he thought that he perceived
the new ministers falling into unpopularity, and he then advised that a
bold effort should be made to crush them. Meeting with encouragement, he
secretly left London, and, being joined by the Duke of Ireland, went to
the king, who was at Nottingham, in a progress through the midland
counties. He then undertook, through the instrumentality of his brother
judges, to break the commission, and to restore the king and the favorite
to the authority of which it had deprived them. His plan was immediately
adopted, and the judges, who had just returned from the summer assizes,
were all summoned in the king's name to Nottingham.

On their arrival, they found not only a string of questions, but answers,
prepared by Tresilian. These he himself had signed, and he required them
to sign. Belknappe, the chief justice of the Common Pleas, and the others,
demurred, seeing the peril to which they might be exposed; but, by
promises and threats, they were induced to acquiesce. The following record
was accordingly drawn up, that copies of it might be distributed all over
England:--

"Be it remembered, that on the 25th of Aug., in the 11th year of the reign
of K. Rich. II., at the castle of Nottingham, before our said lord the
king, Rob. Tresilian, chief justice of England, and Robt. Belknappe, chief
justice of the common bench of our said lord the king, John Holt, Roger
Fulthorp, and Wm. de Burg, knights, justices, &c., and John de Lokton, the
king's serjeant-at-law, in the presence of the lords and other witnesses
under-written, were personally required by said lord the king, on the
faith and allegiance wherein to him the said king they are bound, to
answer faithfully unto certain questions hereunder specified, and to them
then and there truly recited, and upon the same to declare the law
according to their discretion, viz.:--

"1. It was demanded of them, 'Whether that new statute, ordinance, and
commission, made and published in the last parl. held at Westm., be not
derogatory to the loyalty and prerogative of our said lord the king?' To
which they unanimously answered that the same are derogatory thereunto,
especially because they were against his will.

"2. 'How those are to be punished who procured that statute and
commission?'--_A._ That they were to be punished with death, except the
king would pardon them.

"3. 'How those are to be punished who moved the king to consent to the
making of the said statute?'--_A._ That they ought to lose their lives
unless his Maj. would pardon them.

"4. 'What punishment they deserved who compelled, straightened, or
necessitated the king to consent to the making of the said statute and
commission?'--_A._ That they ought to suffer as traitors.

"5. 'How those are to be punished who hindered the king from exercising
those things which appertain to his royalty and prerogative?'--_A._ That
they are to be punished as traitors.

"6. 'Whether after in parl. assembled, the affairs of the kingdom, and the
cause of calling that parl. are by the king's command declared, and
certain articles limited by the king upon which the lords and commons in
that parl. ought to proceed; if yet the said lords and commons will
proceed altogether upon other articles and affairs, and not at all upon
those limited and proposed to them by the king, until the king shall have
first answered them upon the articles and matters so by them started and
expressed, although the king's command be to the contrary; whether in such
case the king ought not to have the governance of the parl. and
effectually overrule them, so as that they ought to proceed first on the
matters proposed by the king: or whether, on the contrary, the lords and
commons ought first to have the king's answer upon their proposals before
they proceeded further?'--_A._ That the king in that behalf has the
governance, and may appoint what shall be first handled, and so gradually
what next in all matters to be treated of in parl., even to the end of the
parl.; and if any act contrary to the king's pleasure made known therein,
they are to be punished as traitors.

"7. 'Whether the king, whenever he pleases, can dissolve the parl., and
command the lords and commons to depart from thence, or not?'--_A._ That
he can; and if any one shall then proceed in parl. against the king's
will, he is to be punished as a traitor.

"8. 'Since the king can, whenever he pleases, remove any of his judges and
officers, and justify or punish them for their offences; whether the lords
and commons can, without the will of the king, impeach in parl. any of the
said judges or officers for any of their offences?'--_A._ That they
cannot; and if any one should do so he is to be punished as a traitor.[30]

"9. 'How he is to be punished who moved in parl. that the statute should
be sent for whereby Edw. II. (the king's great grandfather) was proceeded
against and deposed in parl.; by means of sending for and imposing which
statute, the said late statute, ordinance, and commission, were devised
and brought forth in parl.?'--_A._ That as well he that so moved, as he
who by pretence of that motion carried the said statute to the parl., are
traitors and criminals, to be punished with death.

"10. 'Whether the judgment given in the last parl. held at Westm. against
Mich. de la Pole, Earl of Suffolk, was erroneous and revocable, or
not?'--_A._ That if that judgment were now to be given, they would not
give it; because it seems to them that the said judgment is revocable, as
being erroneous in every part of it.

"In testimony of all which, the judges and serjeants aforesaid, to these
presents have put their seals in the presence of the rev. lords, Alex.
abp. of York, Rob. abp. of Dublin, John bp. of Durham, Tho. bp. of
Chichester, and John bp. of Bangor, Rob. duke of Ireland, Mich. earl of
Suffolk, John Rypon, clerk, and John Blake, esq.; given the place, day,
month, and year aforesaid."

Tresilian exultingly thought that he had not only got rid of the obnoxious
commission, but that he had annihilated the power of Parliament by the
destruction of parliamentary privilege, and by making the proceedings of
the two houses entirely dependent on the caprice of the sovereign.

He then attended Richard to London, where the opinion of the judges
against the legality of the commission was proclaimed to the citizens at
the Guildhall; and all who should act under it were declared traitors. A
resolution was formed to arrest the most obnoxious of the opposite
faction, and to send them to take their trials before the judges who had
already committed themselves on the question of law; and, under the
guidance of Tresilian, a bill of indictment was actually prepared against
them for a conspiracy to destroy the royal prerogative. Thomas Ush, the
under sheriff, promised to pack a jury to convict them; Sir Nicholas
Brambre, who had been thrice lord mayor, undertook to secure the fidelity
of the citizens; and all the city companies swore that they would live and
die with the king, and fight against his enemies to their last breath.
Arundel, Bishop of Ely, was still chancellor; but Tresilian considered
that the great seal was now within his own grasp, and, after the recent
examples of chief justices becoming chancellors, he anticipated no
obstacle to his elevation.

At such a slow pace did news travel in those days, that, on the night of
the 10th of November, Richard and his chief justice went to bed thinking
that their enemies were annihilated, and next morning they were awoke by
the intelligence that a large force, under the Duke of Gloucester and the
Earls of Arundel and Nottingham, was encamped at Highgate. The confederate
lords, hearing of the proceedings at Nottingham, had immediately rushed to
arms, and followed Richard towards London, with an army of 40,000 men. The
walls of London were sufficient to repel a sudden assault; and a royal
proclamation forbade the sale of provisions to the rebels, in the hope
that famine might disperse them. But, marching round by Hackney, they
approached Aldgate, and they appeared so formidable, that a treaty was
entered into, according to which they were to be supplied with all
necessaries, on payment of a just price, and deputies from them were to
have safe conduct through the city on their way to the king at
Westminster. Richard himself agreed that on the following Sunday he would
receive the deputies, sitting on his throne in Westminster Hall.

At the appointed hour he was ready to receive them, but they did not
arrive, and he asked "how it fortuned that they kept not their promise."
Being answered, "Because there is an ambush of a thousand armed men or
more in a place called the Mews, contrary to covenant; and therefore they
neither come, nor hold you faithful to your word,"--he said, with an oath,
that "he knew of no such thing," and he ordered the sheriffs of London to
go thither and kill all they could lay hands on. The truth was, that Sir
Nicholas Brambre, in concert with Tresilian, had planted an ambush near
Charing Cross, to assassinate the lords as they passed; but, in obedience
to the king's order, the men were sent back to the city of London. The
lords at last reached Westminster, with a gallant troop of gentlemen; and
as soon as they had entered the great hall, and saw the king in his royal
robes sitting on the throne, with the crown on his head and the sceptre in
his hand, they made obeisance three times as they advanced, and when they
reached the steps of the throne they knelt down before him with all
seeming humility. He, feigning to be pleased to see them, rose and took
each of them by the hand, and said "he would hear their plaint, as he was
desirous to render justice to all his subjects." Thereupon they said,
"Most dread sovereign, we appeal of high treason Robert Tresilian, that
false justice; Nicholas Brambre, that disloyal knight; the Archbishop of
York; the Duke of Ireland; and the Earl of Suffolk;"--and, to prove their
accusation to be true, they threw down their gauntlets, protesting by
their oaths that they were ready to prosecute it to battle. "Nay," said
the king, "not so; but in the next Parliament (which we do appoint
beforehand to begin the morrow after the Purification of our Lady,) both
they and you, appearing, shall receive according to law what law doth
require, and right shall be done."

It being apparent that the confederate lords had a complete ascendency,
the accused parties fled. The Duke of Ireland and Sir Nicholas Brambre
made an ineffectual attempt to rally a military force; but Chief Justice
Tresilian disguised himself, and remained in concealment till he was
discovered, after being attainted, in the manner to be hereafter
described.

The election for the new Parliament ran strongly in favor of the
confederate lords; and, on the day appointed for its meeting, an order was
issued under their sanction for taking into custody all the judges who had
signed the opinion at Nottingham. They were all arrested while they were
sitting on the bench, except Chief Justice Tresilian; but he was nowhere
to be found.

When the members of both houses had assembled at Westminster Hall, and the
king had taken his place on the throne, the five lords, who were called
APPELLANTS, "entered in costly robes, leading one another hand in hand, an
innumerable company following them, and, approaching the king, they all
with submissive gestures reverenced him. Then rising, they declared their
appellation by the mouth of their speaker, who said, 'Behold the Duke of
Gloucester comes to purge himself of treasons which are laid to his charge
by the conspirators.' To whom the lord chancellor, by the king's command,
answered, 'My lord duke, the king conceiveth so honorably of you, that he
cannot be induced to believe that you, who are of kindred to him, should
attempt any treason against him.' The duke, with his four companions on
their knees, humbly gave thanks to the king for his gracious opinion of
their fidelity. And now, as a prelude to what was going to be acted, each
of the prelates, lords and commons then assembled, had the following oath
administered to them upon the rood or cross of Canterbury, in full
Parliament: 'You shall swear that you will keep, and cause to be kept, the
good peace, quiet, and tranquillity of the kingdom; and if any will do to
the contrary thereof, you shall oppose and disturb him to the utmost of
your power; and if any will do any thing against the bodies of the five
lords, you shall stand with them to the end of this present Parliament,
and maintain and support them with all your power, to live and die with
them against all men, no person or thing excepted, saving always your
legiance to the king and the prerogatives of his crown, according to the
laws and good customs of the realm.'"

Written articles to the number of thirty-nine were then exhibited by the
appellants against the appellees. The other four are alleged to have
committed the various acts of treason charged upon them "by the assent and
counsel of Robert Tresilian, that false justice;" and in most of the
articles he bears the brunt of the accusation. Sir Nicholas Brambre alone
was in custody; and the others not appearing when solemnly called, their
default was recorded, and the lords took time to consider whether the
impeachment was duly instituted, and whether the facts stated in the
articles amounted to high treason. Ten days thereafter, judgment was given
"that the impeachment was duly instituted, and that the facts stated in
several of the articles amounted to high treason." Thereupon, the prelates
having withdrawn, that they might not mix in an affair of blood, sentence
was pronounced, "that Sir Robert Tresilian, the Duke of Ireland, the
Archbishop of York, and Earl of Suffolk, should be drawn and hanged as
traitors and enemies to the king and kingdom, and that their heirs should
be disinherited forever, and that their lands and tenements, goods and
chattels, should be forfeited to the king."

Tresilian might have avoided the execution of his sentence, had it not
been for the strangest infatuation related of any human being possessing
the use of reason. Instead of flying to a distance, like the duke, the
archbishop, and the earl, none of whom suffered, although his features
were necessarily well known, he had come to the neighborhood of
Westminster Hall on the first day of the session of Parliament; and, even
after his own attainder had been published, trusting to his disguise, his
curiosity induced him to remain to watch the fate of his associate, Sir
Nicholas Brambre.

This chivalrous citizen, who had been knighted for the bravery he had
displayed in assisting Sir William Walwort to kill Wat Tyler and to put
down the rebellion, having been apprehended and lodged in the Tower of
London, was now produced by the constable of the Tower, to take his trial.
He asked for further time to advise with his counsel, but was ordered
forthwith to answer to every point in the articles of treason contained.
Thereupon he exclaimed, "Whoever hath branded me with this ignominious
mark, with him I am ready to fight in the lists to maintain my innocency
whenever the king shall appoint!" "This," says a chronicler, "he spake
with such a fury, that his eyes sparkled with rage, and he breathed as if
an Etna lay hid in his breast; choosing rather to die gloriously in the
field, than disgracefully on a gibbet."

The appellants said "they would readily accept of the combat," and
flinging down their gages before the king, added, "We will prove these
articles to be true to thy head, most damnable traitor!" But the lords
resolved "that battle did not lie in this case; and that they would
examine the articles with the proofs to support them, and consider what
judgment to give, to the advantage and profit of the king and kingdom, and
as they would answer before God."

They adjourned for two days, and met again, when a number of London
citizens appeared to give evidence against Brambre. For the benefit of the
reader, the chronicler I have before quoted shall continue the story:--

"Before they could proceed with his trial, they were interrupted by
unfortunate Tresilian, who, being got upon the top of an apothecary's
house adjoining to the palace, and descended into the gutter to look about
him and observe who went into the palace, was discovered by certain of the
peers, who presently sent some of the guard to apprehend him; who entering
into the house where he was, and having spent long time in vain in looking
for him, at length one of the guard stepped to the master of the house,
and taking him by the shoulder, with his dagger drawn, said thus: 'Show us
where thou hast hid Tresilian, or else resolve thy days as accomplished.'
The master, trembling, and ready to yield up the ghost for fear, answered,
'Yonder is the place where he lies;' and showed him a round table covered
with branches of bays, under which Tresilian lay close covered. When they
had found him they drew him out by the heels, wondering to see him wear
his hair and beard overgrown, with old clouted shoes and patched hose,
more like a miserable poor beggar than a judge. When this came to the ears
of the peers, the five appellants suddenly rose up, and, going to the gate
of the hall, they met the guard leading Tresilian, bound, crying, as they
came, 'We have him, we have him.' Tresilian, being come into the hall, was
asked 'what he could say for himself why execution should not be done
according to the judgment passed upon him for his treasons so often
committed;' but he became as one struck dumb; he had nothing to say, and
his heart was hardened to the very last, so that he would not confess
himself guilty of any thing. Whereupon he was without delay led to the
Tower, that he might suffer the sentence passed against him. His wife and
his children did with many tears accompany him to the Tower; but his wife
was so overcome with grief, that she fell down in a swoon as if she had
been dead. Immediately Tresilian is put upon an hurdle, and drawn through
the streets of the city, with a wonderful concourse of people following
him. At every furlong's end he was suffered to stop, that he might rest
himself, and to see if he would confess or acknowledge any thing; but what
he said to the friar, his confessor, is not known. When he came to the
place of execution he would not climb the ladder, until such time as being
soundly beaten with bats and staves he was forced to go up; and when he
was up, he said, 'So long as I do wear any thing upon me, I shall not
die;' wherefore the executioner stript him, and found certain images
painted like to the signs of the heavens, and the head of a devil painted,
and the names of many of the devils wrote in parchment; these being taken
away he was hanged up naked, and after he had hanged some time, that the
spectators should be sure he was dead, they cut his throat, and because
the night approached they let him hang till the next morning, and then his
wife, having obtained a licence of the king, took down his body, and
carried it to the Gray-Friars, where it was buried."

Considering the violence of the times, Tresilian's conviction and
execution cannot be regarded as raising a strong presumption against him;
but there seems little doubt that he flattered the vices of the unhappy
Richard; and historians agree that, in prosecuting his personal
aggrandizement, he was utterly regardless of law and liberty. He died
unpitied, and, notwithstanding the "historical doubts" by which we are
beset, no one has yet appeared to vindicate his memory.




CHAPTER III.

THOMAS BILLING.


The crown of England, transferred on the deposition of Richard II.[31] in
1399 to the Lancaster family in the person of Henry IV., was worn
successively by him and by his son and grandson, Henry V. and Henry VI.
After the lapse, however, of sixty-two years, the imbecility of Henry VI.
enabled the Legitimist or Yorkist party to triumph by placing Edward IV.
on the throne.

At this time Sir John Fortescue, an able man and distinguished by his
treatise _De Laudibus Legion Angliæ_, (Praises of the Laws of England,)
was chief justice of the King's Bench; but being an ardent Lancastrian,
and having written pamphlets to prove that Richard II. was rightly
deposed, that Henry IV. had been called to the throne by the estates of
the kingdom and the almost unanimous voice of the people, and that now, in
the third generation, the title of the House of Lancaster could not be
questioned, he was by no means the man to suit the new dynasty. He was
removed to make way for Sir John Markham, who had been for nineteen years
a puisne judge of the same court, and who, though he had not ventured to
publish any thing on the subject, yet in private conversation and in
"moots" at the Temple, such as that in which the white and red roses were
chosen as the emblems of the opposite opinions, did not hesitate to argue
for indefeasible hereditary right, which no length of possession could
supersede, and to contend that the true heir of the crown of England was
Richard, Duke of York, descended from the second son of Edward III. His
sentiments were well known to the Yorkist leaders, and they availed
themselves of the legal reasoning and the historical illustrations with
which he furnished them; but he never sallied forth into the field, even
when, after the death of Richard, the gallant youth his eldest son
displayed the high qualities which so wonderfully excited the energy of
his partisans. However, when Henry VI. was confined as a prisoner in the
Tower, and Fortescue and all the Lancastrian leaders had fled, Markham was
very naturally and laudably selected for the important office of chief
justice of the King's Bench. Although he was such a strong Legitimist, he
was known not only to be an excellent lawyer, but a man of honorable and
independent principles. The appointment, therefore, gave high
satisfaction, and was considered a good omen of the new _régime_.

He held the office above seven years, with unabated credit. Not only was
his hand free from bribes, but so was his mind from every improper bias.
It was allowed that when sitting on the bench, no one could have
discovered whether he was Yorkist or Lancastrian; the adherents of the
reigning dynasty complaining (I dare say very unjustly) that, to obtain a
character for impartiality, he showed a leaning on the Lancastrian
side.[32]

At last, though he cherished his notions of hereditary right with
unabating constancy, he forfeited his office because he would not
prostitute it to the purpose of the king and the ministers in wreaking
their vengeance on the head of a political opponent. Sir Thomas Cooke, who
inclined to the Lancastrians, though he had conducted himself with great
caution, was accused of treason and committed to the Tower. To try him a
special commission was issued, over which Lord Chief Justice Markham
presided, and the government was eager for a conviction. But all that
could be proved against the prisoner was, that he entered into a treaty to
lend, on good security, a sum of 1000 marks for the use of Margaret, the
queen of the dethroned Henry VI. The security was not satisfactory, and
the money was not advanced. The chief justice ruled that this did not
amount to treason, but was at most misprision of treason. Of this last
offence the prisoner being found guilty, he was subjected to fine and
imprisonment; but he saved his life and his lands. King Edward IV. was in
a fury, and swearing that Markham, notwithstanding his high pretensions to
loyalty, was himself little better than a traitor, ordered that he should
never sit on the bench any more; and appointed in his place a successor,
who, being a _puisne_, had wished to trip up the heels of his chief, and
had circulated a statement, to reach the king's ear, that Sir Thomas
Cooke's offence was a clear, overt act of high treason. Markham bore his
fall with much dignity and propriety--in no respect changing his
principles or favoring the movement which for a season restored Henry VI.
to the throne after he had been ten years a prisoner in the Tower.

Upon the dismissal of Sir John Markham, Edward IV., who no longer showed
the generous spirit which had illustrated his signal bravery while he was
fighting for the crown, and now abandoned himself by turns to
voluptuousness and cruelty, tried to discover the fittest instrument that
could be found for gratifying his resentments by a perversion of the forms
of law, and with felicity fixed upon Sir Thomas Billing, who, by all sorts
of meannesses, frauds, and atrocities, aided by natural shrewdness, or
rather low cunning, had contrived to raise himself from deep obscurity to
a puisne judge of the King's Bench; and in that situation had shown
himself ready to obey every mandate, and to pander to every caprice of
those who could give him still higher elevation. This is one of the
earliest of the long list of politico-legal adventurers who have attained
to eminence by a moderate share of learning and talent, and an utter want
of principle and regard for consistency.[33]

His family and the place of his education are unknown. He was supposed to
have been the clerk of an attorney; thus making himself well acquainted
with the rules of practice and the less reputable parts of the law.
However, he contrived (which must have been a difficult matter in those
days, when almost all who were admitted at the inns of court were young
men of good birth and breeding) to keep his terms and to be called to the
bar. He had considerable business, although not of the most creditable
description, and in due time he took the degree of the coif, that is,
became a serjeant.

His ambition grew with his success, and nothing would satisfy him but
official preferment. Now began the grand controversy respecting the
succession to the crown; and the claim to it through the house of
Mortimer, which had long been a mere matter of speculation, was brought
into formidable activity in the person of Richard, Duke of York. Billing,
thinking that a possession of above half a century must render the
Lancastrian cause triumphant, notwithstanding the imbecility of the
reigning sovereign, was outrageously loyal. He derided all objections to a
title which the nation had so often solemnly recognized; enlarging on the
prudence of Henry IV., the gallantry of Henry V., and the piety of the
holy Henry VI., under whose mild sway the country now flourished, happily
rid of all its continental dependencies. He even imitated the example of
Sir John Fortescue, and published a treatise upon the subject, which he
concluded with an exhortation "that all who dared, by act, writing, or
speech, to call in question the power of Parliament to accept the
resignation of Richard II., or to depose him for the crimes he had
committed, and to call to the throne the member of the royal family most
worthy to fill it, according to the fashion of our Saxon ancestors, should
be proceeded against as traitors." This so pleased Waynflete, the
chancellor, and the other Lancastrian leaders, that Billing was thereupon
made king's serjeant, and knighted.

When the right to the crown was argued, like a peerage case, at the bar of
the House of Lords, Billing appeared as counsel for Henry VI., leading the
attorney and solicitor general; but it was remarked that his fire had
slackened much, and he was very complimentary to the Duke of York, who,
since the battle of Northampton, had been virtually master of the kingdom.

We know nothing more of the proceedings of this unprincipled adventurer
until after the fall of Duke Richard, when the second battle of St.
Alban's had placed his eldest son on the throne. Instantly Sir Thomas
Billing sent in his adhesion; and such zeal did he express in favor of the
new dynasty that his patent of king's serjeant was renewed, and he became
principal law adviser to Edward IV. When Parliament assembled, receiving a
writ of summons to the House of Lords, he assisted in framing the acts by
which Sir J. Fortescue and the principal Lancastrians, his patrons, were
attainted, and the last three reigns were pronounced tyrannical
usurpations. He likewise took an active part in the measures by which the
persevering efforts of Queen Margaret to regain her ascendency were
disconcerted, and Henry VI. was lodged a close prisoner in the Tower of
London.

Sir John Markham, the honorable and consistent Yorkist, now at the head of
the administration of the criminal law, was by no means so vigorous in
convicting Lancastrians, or persons suspected of Lancastrianism, as Edward
and his military adherents wished; and when state prosecutions failed,
there were strong murmurs against him. In these Mr. Serjeant Billing
joined, suggesting how much better it would be for the public
tranquillity if the law were properly enforced. It would have appeared
very ungracious, as well as arbitrary, to displace the chief justice, who
had been such a friend to the house of York, and was so generally
respected. That there might be one judge to be relied upon, who might be
put into commissions of oyer and terminer, Billing was made a puisne
justice of the Court of King's Bench. He was not satisfied with this
elevation, which little improved his position in the profession; but he
hoped speedily to be on the woolsack, and he was resolved that mere
scruples of conscience should not hold him back.

Being thus intrusted with the sword of justice, he soon fleshed it in the
unfortunate Walter Walker, indicted before him on the statute 25 Edward
III., for compassing and imagining the death of the king. The prisoner
kept an inn called the Crown, in Cheapside, in the city of London, and was
obnoxious to the government because a club of young men met there who were
suspected to be Lancastrians, and to be plotting the restoration of the
imprisoned king. But there was no witness to speak to any such treasonable
consult; and the only evidence to support the charge was, that the
prisoner had once, in a merry mood, said to his son, then a boy, "Tom, if
thou behavest thyself well, I will make thee heir to the Crown."

Counsel were not allowed to plead in such cases then, or for more than
three centuries after; but the poor publican himself urged that he never
had formed any evil intention upon the king's life,--that he had ever
peaceably submitted to the ruling powers,--and that though he could not
deny the words imputed to him, they were only spoken to amuse his little
boy, meaning that he should succeed him as master of the Crown Tavern, in
Cheapside, and, like him, employ himself in selling sack.

Mr. Justice Billing, however, ruled--

"That upon the just construction of the statute of treasons, which was
only declaratory of the common law, there was no necessity, in supporting
such a charge, to prove a design to take away the natural life of the
king; that any thing showing a disposition to touch his royal state and
dignity was sufficient; and that the words proved were inconsistent with
that reverence for the hereditary descent of the crown which was due from
every subject under the oath of allegiance; therefore, if the jury
believed the witness, about which there could be no doubt, as the prisoner
did not venture to deny the treasonable language which he had used, they
were bound to find him guilty."

A verdict of guilty was accordingly returned, and the poor publican was
hanged, drawn, and quartered.[34]

Mr. Justice Billing is said to have made the criminal law thus bend to the
wishes of the king and the ministers in other cases, the particulars of
which have not been transmitted to us; and he became a special favorite at
court, all his former extravagances about cashiering kings and electing
others in their stead being forgotten, in consideration of the zeal he
displayed since his conversion to the doctrine of "divine right."

Therefore, when the chief justice had allowed Sir Thomas Cooke to escape
the penalties of treason, after his forfeitures had been looked to with
eagerness on account of the great wealth he had accumulated, there was a
general cry in the palace at Westminster that he ought not to be permitted
longer to mislead juries, and that Mr. Justice Billing, of such approved
loyalty and firmness, should be appointed to succeed him, rather than the
attorney or solicitor general, who, getting on the bench, might, like him,
follow popular courses.

Accordingly, a _supersedeas_ to Sir John Markham was made out immediately
after the trial of _Rex_ v. _Cooke_, and the same day a writ passed the
great seal, whereby "the king's trusty and well-beloved Sir Thomas
Billing, Knight, was assigned as chief justice to hold pleas before the
king himself."

The very next term came on the trial of Sir Thomas Burdett. This
descendant of one of the companions of William the Conqueror, and ancestor
of the late Sir Francis Burdett, lived at Arrow, in Warwickshire, where he
had large possessions. He had been a Yorkist, but somehow was out of favor
at court; and the king, making a progress in those parts, had rather
wantonly entered his park, and hunted and killed a white buck, of which he
was peculiarly fond. When the fiery knight, who had been from home, heard
of this affair, which he construed into a premeditated insult, he
exclaimed, "I wish that the buck, horns and all, were in the belly of the
man who advised the king to kill it;" or, as some reported, "were in the
king's own belly." The opportunity was thought favorable for being
revenged on an obnoxious person. Accordingly he was arrested, brought to
London, and tried at the King's Bench bar on a charge of treason, for
having compassed and imagined the death and destruction of "our lord the
king."

The prisoner proved, by most respectable witnesses, that the wish he had
rashly expressed was applied only to the man who advised the king to kill
the deer, and contended that words did not amount to treason, and
that--although, on provocation, he had uttered an irreverent expression,
which he deeply regretted--instead of having any design upon the king's
life, he was ready to fight for his right to the crown, as he had done
before; and that he would willingly die in his defence.

"Lord Chief Justice Billing left it to the jury to consider what the words
were; for if the prisoner had only expressed a wish that the buck and his
horns were in the belly of the man who advised the king to kill the buck,
it would not be a case of treason, and the jury would be bound to acquit;
but the story as told by the witnesses for the crown was much more
probable, for sovereigns were not usually advised on such affairs, and it
had been shown that on this occasion the king had acted entirely of his
own head, without any advisers, as the prisoner, when he uttered the
treasonable words, must have well known: then, if the words really were as
alleged by the witnesses for the crown, they clearly did show a
treasonable purpose. Words merely expressing an opinion, however erroneous
the opinion, might not amount to treason; but when the words refer to a
purpose, and incite to an act, they might come within the statute. Here
the king's death had certainly been in the contemplation of the prisoner;
in wishing a violence to be done which must inevitably have caused his
death, he imagined and compassed it. This was, in truth, advising,
counselling, and commanding others to take away the sacred life of his
majesty. If the wicked deed had been done, would not the prisoner, in case
the object of his vengeance had been a subject, have been an accessory
before the fact?[35] But in treason accessories before the fact were
principals, and the prisoner was not at liberty to plead that what he had
planned had not been accomplished. Therefore, if the jury believed that he
had uttered the treasonable wish directed against his majesty's own sacred
person, they were bound to convict him."

The jury immediately returned a verdict of guilty; and the frightful
sentence in high treason, being pronounced, was carried into execution
with all its horrors. This barbarity made a deep impression on the public
mind, and, to aggravate the misconduct of the judge, a rumor was
propagated that the late virtuous chief justice had been displaced because
he had refused to concur in it.

Lord Chief Justice Billing, having justified his promotion by the renegade
zeal he displayed for his new friends, and enmity to his old associates,
was suddenly thrown into the greatest perplexity, and he must have
regretted that he had ever left the Lancastrians. One of the most
extraordinary revolutions in history,--when a long continuance of public
tranquillity was looked for,--without a battle, drove Edward IV. into
exile, and replaced Henry VI. on the throne, after he had languished ten
years as a captive in the Tower of London.

There is no authentic account of Billing's deportment in this crisis, and
we can only conjecture the cunning means he would resort to, and the
pretences he would set up, to keep his place and to escape punishment.
Certain it is, that within a few days from the time when Henry went in
procession from his prison in the Tower to his palace at Westminster, with
the crown on his head, while almost all other functionaries of the late
government had fled, or were shut up in jail, a writ passed the great
seal, bearing date the 49th year of his reign, by which he assigned "his
trusty and well-beloved Sir John Billing, Knight, as his chief justice to
hold pleas in his court before him." There can be as little doubt that he
was present at the Parliament which was summoned immediately after in
Henry's name, when the crown was entailed on Henry and his issue, Edward
was declared a usurper, his most active adherents were attainted, and all
the statutes which had passed during his reign were repealed. It is not
improbable that there had been a secret understanding between Billing and
the Earl of Warwick, (the king maker,) who himself so often changed sides,
and who was now in possession of the whole authority of the government.

While Edward was a fugitive in foreign parts, the doctrine of divine right
was, no doubt, at a discount in England, and Billing may have again bolted
his arguments about the power of the people to choose their rulers;
although, according to the superstition of the age, he more probably
countenanced the belief that Henry was a saint, and that he was restored
by the direct interposition of Heaven.

But one would think he must have been at his wits' end when, in the spring
of the following year, Edward IV. landed at Ravenspurg, gained the battle
of Barnet, and, after the murder of Henry VI. and the Prince of Wales, was
again on the throne, without a rival. Billing does seem to have found
great difficulty in making his peace. Though he was dismissed from his
office, it was allowed to remain vacant about a twelvemonth, during which
time he is supposed to have been in hiding. But he had vowed that,
whatever changes might take place on the throne, he himself should die
chief justice of the King's Bench; and he contrived to be as good as his
word.

By his own representations, or the intercession of friends, or the hope of
the good services he might yet render in getting rid of troublesome
opponents, the king was induced to declare his belief that he who had sat
on the trials of Walker and Burdet had unwillingly submitted to force
during the late usurpation; and on the 17th of June, 1472, a writ passed
the great seal, by which his majesty assigned "his right trusty and
well-beloved Sir John Billing, Knight, as Chief Justice to hold pleas
before his Majesty himself."

For nearly nine years after, he continued in the possession of his office,
without being driven again to change his principles or his party. One good
deed he did, which should be recorded of him--in advising Edward IV. to
grant a pardon to an old Lancastrian, Sir John Fortescue. But for the
purpose of reducing this illustrious judge to the reproach of
inconsistency, which he knew made his own name a by-word, he imposed a
condition that the author of _De Laudibus_ should publish a new treatise,
to refute that which he had before composed, proving the right of the
house of Lancaster to the throne; and forced him to present the petition
in which he assures the king "that he hath so clearly disproved all the
arguments that have been made against his right and title, that now there
remaineth no color or matter of argument to the hurt or infamy of the
same right or title by reason of any such writing, but the same right and
title stand now the more clear and open by that any such writings have
been made against them."

There are many decisions of Chief Justice Billing on dry points of law to
be found in the Year Books, but there is only one other trial of
historical importance mentioned in which he took any part; and it is much
to be feared that on this occasion he inflamed, instead of soothing, the
violent passions of his master, with whom he had become a special
favorite.

Edward IV., after repeated quarrels and reconciliations with his brother,
the Duke of Clarence, at last brought him to trial, at the bar of the
House of Lords, on a charge of high treason. The judges were summoned to
attend, and Lord Chief Justice Billing was their mouthpiece. We have only
a very defective account of this trial, and it would appear that nothing
was proved against the first prince of the blood, except that he had
complained of the unlawful conviction of Burdet, who had been in his
service; that he had accused the king of dealing in magic, and had cast
some doubts on his legitimacy; that he had induced his servants to swear
that they would be true to him, without any reservation of their
allegiance to their sovereign; and that he had surreptitiously obtained
and preserved an attested copy of an act of Parliament, passed during the
late usurpation, declaring him next heir to the crown after the male issue
of Henry VI. The Duke of Buckingham presided as high steward, and in that
capacity ought to have laid down the law to the peers; but, to lessen his
responsibility, he put the question to the judges, "whether the matters
proved against the Duke of Clarence amounted, in point of law, to high
treason." Chief Justice Billing answered in the affirmative. Therefore a
unanimous verdict of guilty was given, and sentence of death was
pronounced in the usual form. I dare say Billing would not have hesitated
in declaring his opinion that the beheading might be commuted to drowning
in a butt of malmsey wine; but this story of Clarence's exit, once so
current, is now generally discredited, and the belief is, that he was
privately executed in the Tower, according to his sentence.

Lord Chief Justice Billing enjoyed the felicitous fate accorded to very
few persons of any distinction in those times--that he never was
imprisoned, that he never was in exile, and that he died a natural death.
In the spring of the year 1482, he was struck with apoplexy, and he
expired in a few days--fulfilling his vow--for he remained to the last
chief justice of the King's Bench, after a tenure of office for seventeen
years, in the midst of civil wars and revolutions.

He amassed immense wealth, but dying childless, it went to distant
relations, for whom he could have felt no tenderness. Notwithstanding his
worldly prosperity, few would envy him. He might have been feared and
flattered, but he could not have been beloved or respected, by his
contemporaries; and his name, contrasted with those of Fortescue and
Markham, was long used as an impersonation of the most hollow, deceitful,
and selfish qualities which can disgrace mankind.




CHAPTER IV.

JOHN FITZJAMES.


Of obscure birth, and not brilliant talents, Sir John Fitzjames made his
fortune by his great good humor, and by being at college with Cardinal
Wolsey. It is said that Fitzjames, who was a Somersetshire man, kept up an
intimacy with Wolsey when the latter had become a village parson in that
county; and that he was actually in the brawl at the fair when his
reverence, having got drunk, was set in the stocks by Sir Amyas Paulet.

While Wolsey tried his luck in the church, with little hope of promotion,
Fitzjames was keeping his terms in the inns of court; but he chiefly
distinguished himself on gaudy days, by dancing before the judges, playing
the part of "Abbot of Misrule," and swearing strange oaths--especially by
_St. Gillian_, his tutelary saint. His agreeable manners made him popular
with the "readers" and "benchers;" and through their favor, although very
deficient in "moots" and "bolts," he was called to the outer bar. Clients,
however, he had none, and he was in deep despair, when his former
chum--having insinuated himself into the good graces of the stern and wary
old man, Henry VII., and those of the gay and licentious youth, Henry
VIII.--was rapidly advancing to greatness. Wolsey, while almoner, and
holding subordinate offices about the court, took notice of Fitzjames,
advised him to stick to the profession, and was able to throw some
business in his way in the court of Wards and Liveries--

  "Lofty and sour to them that lov'd him not:
  But to those men that sought him, sweet as summer."

Fitzjames was devotedly of this second class, and was even suspected to
assist his patron in pursuits which drew upon him Queen Catharine's
censure:--

  "Of his own body he was ill, and gave
  The clergy ill example."

For these or other services, the cardinal, not long after he wrested the
great seal from Archbishop Wareham, and had all legal patronage conferred
upon him, boldly made Fitzjames attorney general, notwithstanding loud
complaints from competitors of his inexperience and incapacity.

The only state trial which he had to conduct was that of the unfortunate
Stafford, Duke of Buckingham, who, having quarrelled with Wolsey, and
called him a "butcher's cur," was prosecuted for high treason before the
lord high chancellor and Court of Peers, on very frivolous grounds.
Fitzjames had little difficulty in procuring a conviction; and although
the manner in which he pressed the case seems shocking to us, he probably
was not considered to have exceeded the line of his duty: and Shakspeare
makes Buckingham, returning from Westminster Hall to the Tower, exclaim--

                      "I had my trial,
  And, must needs say, a noble one; which makes me
  A little happier than my wretched father."

The result was, at all events, highly satisfactory to Wolsey, who, in the
beginning of the following year, created Fitzjames a puisne judge of the
Court of King's Bench, with a promise of being raised to be chief justice
as soon as there should be a vacancy. Sir John Fineux, turned of eighty,
was expected to drop every term, but held on four years longer. As soon
as he expired, Fitzjames was appointed his successor. Wolsey still
zealously supported him, although thereby incurring considerable obloquy.
It was generally thought that the new chief was not only wanting in
gravity of moral character, but that he had not sufficient professional
knowledge for such a situation. His highest quality was discretion, which
generally enabled him to conceal his ignorance, and to disarm opposition.
Fortunately for him, the question which then agitated the country
respecting the validity of the king's marriage with Catharine of Arragon,
was considered to depend entirely on the canon law, and he was not called
upon to give any opinion upon it. He thus quietly discharged the duties of
his office till Wolsey's fall. But he then experienced much perplexity.
Was he to desert his patron, or to sacrifice his place? He had an
exaggerated notion of the king's vengeful feelings. The cardinal having
been not only deprived of the great seal, but banished to Esher, and
robbed of almost the whole of his property under process of _præmunire_,
while an impeachment for treason was still threatened against him, the
chief justice concluded that his utter destruction was resolved upon, and
that no one could show him any sympathy without sharing his fate.
Therefore, instead of going privately to visit him, as some old friends
did, he joined in the cry against him, and assisted his enemies to the
utmost. Wolsey readily surrendered all his private property, but wished,
for the benefit of his successors, to save the palace at Whitehall, which
belonged to the see of York, being the gift of a former archbishop. A
reference was then made to the judges, "whether it was not forfeited to
the crown;" when the chief justice suggested the fraudulent expedient of a
fictitious recovery in the Court of Common Pleas, whereby it should be
adjudged to the king under a superior title. He had not the courage to
show himself in the presence of the man to whom he owed every thing; and
Shelley, a puisne judge, was deputed to make the proposal to him in the
king's name. "Master Shelley," said the cardinal, "ye shall make report to
his highness that I am his obedient subject, and faithful chaplain and
bondsman, whose royal commandment and request I will in no wise disobey,
but most gladly fulfil and accomplish his princely will and pleasure in
all things, and in especial in this matter, inasmuch as the fathers of the
law all say that I may lawfully do it. Therefore I charge your conscience,
and discharge mine. Howbeit, I pray you show his majesty from me that I
most humbly desire his highness to call to his most gracious remembrance
that there is both heaven and hell."

This answer was, no doubt, reported by Shelley to his brethren assembled
in the Exchequer Chamber, although, probably, not to the king; but it
excited no remorse in the breast of Chief Justice Fitzjames, who perfected
the machinery by which the town residence of the Archbishops of York
henceforth was annexed to the crown, and declared his readiness to concur
in any proceedings by which the proud ecclesiastic, who had ventured to
sneer at the reverend sages of the law, might be brought to condign
punishment.

Accordingly, when Parliament met, and a select committee of the House of
Lords was appointed to draw up articles of impeachment against Wolsey,
Chief Justice Fitzjames, although only summoned, like the other judges, as
an assessor, was actually made a member of the committee, joined in their
deliberations, and signed their report.

The authority of the chief justice gave such weight to the articles that
they were agreed to by the lords, _nemine contradicente_; but his
ingratitude and tergiversation caused much scandal out of doors, and he
had the mortification to find that he might have acted an honorable and
friendly part without any risk to himself, as the king, retaining a
hankering kindness for his old favorite, not only praised the fidelity of
Cavendish and the cardinal's other dependants who stuck by him in
adversity, but took Cromwell into favor, and advanced him to the highest
dignities, pleased with his gallant defence of his old master: thus the
articles of impeachment (on which, probably, Fitzjames had founded hopes
of the great seal for himself) were ignominiously rejected in the House of
Commons.

The recreant chief justice must have been much alarmed by the report that
Wolsey, whom he had abandoned, if not betrayed, was likely to be restored
to power, and he must have been considerably relieved by the certain
intelligence of the sad scene at Leicester Abbey in the following autumn,
which secured him forever against the fear of being upbraided or punished
in this world according to his deserts. However, he had now lost all
dignity of character, and henceforth he was used as a vile instrument to
apply the criminal law for the pleasure of the tyrant on the throne, whose
relish for blood soon began to display itself, and became more eager the
more it was gratified.

Henry retaining all the doctrines of the Roman Catholic religion which we
Protestants consider most objectionable, but making himself pope in
England in place of the Bishop of Rome, laws were enacted subjecting to
the penalties of treason all who denied his _supremacy_;[36] and many of
these offenders were tried and condemned by Lord Chief Justice Fitzjames,
although he was suspected of being in his heart adverse to all innovation
in religion.

I must confine myself to the two most illustrious victims sacrificed by
him--Fisher, Bishop of Rochester, and Sir Thomas More. Henry, not
contented with having them attainted of _misprision of treason_, for which
they were suffering the sentence of forfeiture of all their property and
imprisonment during life, was determined to bring them both to the block,
and for this purpose issued a special commission to try them on the
capital charge of having denied his supremacy. The lord chancellor was
first commissioner; but it was intended that the responsibility and the
odium should chiefly rest on the Lord Chief Justice Fitzjames, who was
joined in the commission along with several other common law judges of
inferior rank.

The case against the Bishop of Rochester rested on the evidence of Rich,
the solicitor general, who swore he had heard the prisoner say, "I believe
in my conscience, and by my learning I assuredly know, that the king
neither is, nor by right can be, supreme head of the church of England;"
but admitted that this was in a confidential conversation, which he had
introduced by declaring that "he came from the king to ask what the
bishop's opinion was upon this question, and by assuring him that it never
should be mentioned to any one except the king, and that the king had
promised he never should be drawn into question for it afterwards." The
prisoner contending that he was not guilty of the capital crime charged
for words so spoken, the matter was referred to the judges.

"Lord Chief Justice Fitzjames, in their names, declared 'that this message
or promise from the king to the prisoner neither did nor could, by rigor
of law, discharge him; but in so declaring of his mind and conscience
against the _supremacy_--yea, though it were at the king's own request or
commandment--he committed treason by the statute, and nothing can
discharge him from death but the king's pardon.'"

_Bishop of Rochester._--"Yet I pray you, my lords, consider that by all
equity, justice, worldly honesty, and courteous dealing, I cannot, as the
case standeth, be directly charged therewith as with treason, though I had
spoken the words indeed, the same not being spoken maliciously, but in the
way of advice or counsel, when it was required of me by the king himself;
and that favor the very words of the statute do give me, being made only
against such as shall '_maliciously_ gainsay the king's supremacy,' and
none other; wherefore, although by rigor of law you may take occasion thus
to condemn me, yet I hope you cannot find law, except you add rigor to
that law, to cast me down, which herein I have not deserved."

_Fitzjames, C. J._--"All my brethren are agreed that '_maliciously_' is a
term of art and an inference of law, not a qualification of fact. In
truth, it is a superfluous and void word; for if a man speak against the
king's supremacy by any manner of means, that speaking is to be understood
and taken in law as _malicious_."

_Bishop of Rochester._--"If the law be so, then it is a hard exposition,
and (as I take it) contrary to the meaning of them that made the law, as
well as of ordinary persons who read it. But then, my lords, what says
your wisdom to this question, 'Whether a single testimony may be admitted
to prove me guilty of treason; and may it not be answered by my negative?'
Often have I heard it said, that to overcome the presumption from the oath
of allegiance to the king's majesty, and to guard against the dire
consequences of the penalties for treason falling on the head of an
innocent man, none shall be convicted thereof save on the evidence of two
witnesses at the least."

_Fitzjames, C. J._--"This being the king's case, it rests much in the
conscience and discretion of the jury; and as they upon the evidence shall
find it, you are either to be acquitted or else to be condemned."

The report says that "the bishop answered with many more words, both
wisely and profoundly uttered, and that with a mervailous, couragious, and
rare constancy, insomuch as many of his hearers--yea, some of the
judges--lamented so grievously, that their inward sorrow was expressed by
the outward teares in their eyes, to perceive such a famous and reverend
man in danger to be condemned to a cruell death upon so weake evidence,
given by such an accuser, contrary to all faith, and the promise of the
king himself."

A packed jury, being left to their conscience and discretion, found a
verdict of guilty; and Henry was able to make good his saying, when he was
told that the pope intended to send Bishop Fisher a cardinal's hat--"'Fore
God, then, he shall wear it on his shoulders, for I will have his head
off."

The conduct of the chief justice at the trial of Sir Thomas More was not
less atrocious. After the case for the crown had been closed, the
prisoner, in an able address to the jury, clearly proved that there was
no evidence whatever to support the charge, and that he was entitled to an
acquittal; when Rich, the solicitor general, was permitted to present
himself in the witness box, and to swear falsely, that "having observed,
in a private conversation with the prisoner in the Tower, 'No Parliament
could make a law that God should not be God,'[37] Sir Thomas replied, 'No
more can the Parliament make the king supreme head of the church.'"

A verdict of guilty was pronounced against the prisoner, notwithstanding
his solemn denial of ever having spoken these words. He then moved, in
arrest of judgment, that the indictment was insufficient, as it did not
properly follow the words of the statute which made it high treason to
deny the king's supremacy, even supposing that Parliament had power to
pass such a statute. The lord chancellor, whose duty it was, as head of
the commission, to pass the sentence--"not willing," says the report, "to
take the whole load of his condemnation on himself, asked in open court
the advice of Sir John Fitzjames, the lord chief justice of England,
whether the indictment was valid or no."

_Fitzjames, C. J._--"My lords all, by St. Gillian, (for that was always
his oath,) I must needs confess that if the act of Parliament be not
unlawful, then the indictment is not, in my conscience, invalid."

_Lord Chancellor._--"_Quid adhuc desideramus, testimonium? Reus est
mortis._ (What more do we need? He is worthy of death.) Sir Thomas More,
you being, by the opinion of that reverend judge, the chief justice of
England, and of all his brethren, duly convicted of high treason, this
court doth adjudge that you be carried back to the Tower of London, and
that you be thence drawn on a hurdle to Tyburn, where you are to be hanged
till you are half dead, and then being cut down alive and embowelled, and
your bowels burnt before your face, you are to be beheaded and quartered,
your four quarters being set up over the four gates of the city, and your
head upon London Bridge."

No one can deny that Lord Chief Justice Fitzjames was an accessory to this
atrocious murder.

The next occasion of his attracting the notice of the public was when he
presided at the trials of Smeaton and the other supposed gallants of Anne
Boleyn. Luckily for him, no particulars of these trials have come down to
us, and we remain ignorant of the arts by which a conviction was obtained,
and even a _confession_--although there is every reason to believe that
the parties were innocent. According to the rules of evidence which then
prevailed, the convictions and confessions of the gallants were to be
given in evidence to establish the guilt of the unhappy queen, for whose
death Henry was now as impatient as he had once been to make her his wife.

When the lord high steward and the peers assembled for her trial,
Fitzjames and the other judges attended, merely as assessors, to advise on
any point of law which might arise. I do not find that they were consulted
till the verdict of guilty had been recorded, and sentence was to be
pronounced. _Burning_ was the death which the law appointed for a woman
attainted of treason; yet as Anne had been Queen of England, some peers
suggested that it might be left to the king to determine whether she
should die such a cruel and ignominious death, or be _beheaded_, a
punishment supposed to be attended with less pain and less disgrace. But
then a difficulty arose whether, although the king might remit all the
atrocities of the sentence on a man for treason, except beheading, which
is part of it, he could order a person to be beheaded who was sentenced to
be burnt. A solution was proposed, that she should be sentenced by the
lord high steward to be "burnt or beheaded at the king's pleasure;" and
the opinion of the judges was asked, "whether such a sentence could be
lawfully pronounced."

_Fitzjames, C. J._--"My lords, neither myself nor any of my learned
brothers have ever known or found in the records, or read in the books, or
known or heard of, a sentence of death in the alternative or disjunctive,
and incline to think that it would be bad for uncertainty. The law
delights in certainty. Where a choice is given, by what means is the
choice to be exercised? And if the sheriff receives no special directions,
what is he to do? Is sentence to be stayed till special directions are
given by the king? and if no special directions are given, is the
prisoner, being attainted, to escape all punishment? Prudent antiquity
advises you _stare super antiquas vias_; and that which is without
precedent is without safety."

After due deliberation, it was held that an absolute sentence of beheading
would be lawful, and it was pronounced accordingly; the court being
greatly comforted by recollecting that no writ of error lay, and that
their judgment could not be reversed.

Fitzjames died in the year 1539, before this judgment served as a
precedent for that upon the unfortunate Queen Catharine Howard; and he was
much missed when the bloody statute of the Six Articles brought so many,
both of the old and of the reformed faith, on capital charges, before the
Court of King's Bench.




CHAPTER V.

THOMAS FLEMING.


The greatest part of my readers never before read or heard of the name of
Thomas Fleming; yet, starting in the profession of the law with Francis
Bacon, he was not only preferred to him by attorneys, but by prime
ministers, and he had the highest professional honors showered upon him,
while the immortal philosopher, orator, and fine writer continued to
languish at the bar without any advancement, notwithstanding all his
merits and all his intrigues. But Fleming had superior good fortune, and
enjoyed temporary consequences, because he was a mere lawyer--because he
harbored no idea or aspirations beyond the routine of Westminster
Hall--because he did not mortify the vanity of the witty, or alarm the
jealousy of the ambitious.

He was the younger son of a gentleman of small estate in the Isle of
Wight. I do not find any account of his early education, and very little
interest can now be felt respecting it; although we catch so eagerly at
any trait of the boyhood of his rival, whom he despised. Soon after he was
called to the bar, by unwearied drudgery he got into considerable
practice; and it was remarked that he always tried how much labor he could
bestow upon every case intrusted to him, while his more lively competitors
tried with how little labor they could creditably perform their duty.

In the end of the year 1594, he was called to the degree of serjeant,
along with eight others, and was thought to be the most deeply versed in
the law of real actions of the whole batch. It happened that, soon after,
there was a vacancy in the office of solicitor general, on the promotion
of Sir Edward Coke to be attorney general. Bacon moved heaven and earth
that he himself might succeed to it. He wrote to his uncle, Lord Treasurer
Burleigh, saying, "I hope you will think I am no unlikely piece of wood to
shape you a true servant of." He wrote to the Queen Elizabeth, saying, "I
affect myself to a place of my profession, such as I do see divers younger
in proceeding to myself, and men of no great note, do without blame aspire
unto; but if your majesty like others better, I shall, with the
Lacedemonian, be glad that there is such choice of abler men than myself."
He accompanied this letter with a valuable jewel, to show off her beauty.
He did what he thought would be still more serviceable, and, indeed,
conclusive; he prevailed upon the young Earl of Essex, then in the highest
favor with the aged queen, earnestly to press his suit. But the
appointment was left with the lord treasurer, and he decided immediately
against his nephew, who was reported to be no lawyer, from giving up his
time to profane learning--who had lately made an indiscreet, although very
eloquent, speech in the House of Commons--and who, if promoted, might be a
dangerous rival to his cousin, Robert Cecil, then entering public life,
and destined by his sire to be prime minister. The cunning old fox then
inquired who would be a competent person to do the queen's business in her
courts, and would give no uneasiness elsewhere; and he was told by several
black-letter judges whom he consulted that "Serjeant Fleming was the man
for him." After the office had been kept vacant by these intrigues above a
year, Serjeant Fleming was actually appointed. Bacon's anguish was
exasperated by comparing himself with the new solicitor; and in writing
to Essex, after enumerating his own pretensions, he says, "When I add
hereunto the obscureness and many exceptions to my competitor, I cannot
but conclude with myself that no man ever had a more exquisite disgrace."
He resolved at first to shut himself up for the rest of his days in a
cloister at Cambridge. A soothing message from the queen induced him to
remain at the bar; but he had the mortification to see the man whom he
utterly despised much higher in the law than himself, during the remainder
of this and a considerable part of the succeeding reign.

Fleming, immediately upon his promotion, gave up his serjeantship, and
practised in the Court of Queen's Bench. He was found very useful in doing
the official business, and gave entire satisfaction to his employers.

At the calling of a new Parliament, in the autumn of 1601, he was returned
to the House of Commons for a Cornish borough; and, according to the usual
practice at that time, he ought, as solicitor general, to have been
elected speaker; but his manner was too "lawyer-like and ungenteel" for
the chair, and Serjeant Croke, who was more presentable, was substituted
for him.

He opened his mouth in the house only once, and then he broke down. This
was in the great debate on the grievance of monopolies. He undertook to
defend the system of granting to individuals the exclusive right of
dealing in particular commodities; but when he had described the manner in
which patents passed through the different offices before the great seal
is put to them, he lost his recollection and resumed his seat.

Bacon, now member for Middlesex, to show what a valuable solicitor
general the government had lost, made a very gallant speech, in which he
maintained that "the queen, as she is our sovereign, hath both an
enlarging and restraining power: for, by her prerogative, she may, 1st,
set at liberty things restrained by statute law or otherwise; and 2dly, by
her prerogative she may restrain things which be at liberty." He concluded
by expressing the utmost horror of introducing any bill to meddle with the
powers of the crown upon the subject, and protesting that "the only lawful
course was to leave it to her majesty of her own free will to correct any
hardships, if any had arisen in the exercise of her just rights, as the
arbitress of trade and commerce in the realm."

This pleased her exceedingly, and even softened her ministers, insomuch
that a promise was given to promote Fleming as soon as possible, and to
appoint Bacon in his place. In those days there never existed the remotest
notion of dismissing an attorney or solicitor general, any more than a
judge; for, though they all alike held _during pleasure_, till the
accession of the house of Stuart the tenure of all of them was practically
secure. An attempt was made to induce Fleming to accept the appointment of
queen's serjeant, which would have given him precedence over the attorney
general; but this failed, for he would thereby have been considered as put
upon the shelf, instead of being on the highway to promotion.

Elizabeth died, leaving Bacon with no higher rank than that of queen's
counsel; and on the accession of James I., Fleming was reappointed
solicitor general.

The event justified his firmness in resisting the attempt to shelve him,
for in the following year, on the death of Sir William Peryam, he was
appointed chief baron of the Exchequer. While he held this office, he sat
along with Lord Chief Justice Popham on the trial of Guy Fawkes and the
gunpowder conspirators; but he followed the useful advice for subordinate
judges on such an occasion--"to look wise, and to say nothing."

His most memorable judgment as chief baron was in what is called "The
Great Case of Impositions." This was, in truth, fully as important as
Hampden's case of ship money, but did not acquire such celebrity in
history, because it was long acquiesced in, to the destruction of public
liberty, whereas the other immediately produced the civil war. After an
act of Parliament had passed at the commencement of James's reign, by
which an import duty of 2_s._ 6_d._ per cwt. was imposed upon currants, he
by his own authority laid on an additional duty of 7_s._ 6_d._, making
10_s._ per cwt. Bates, a Levant merchant, who had imported a cargo of
currants from Venice, very readily paid the parliamentary duty of 2_s._
3_d._ upon it, but refused to pay more; thereupon the attorney general
filed an information in the Court of Exchequer, to compel him to pay the
additional duty of 7_s._ 6_d._; so the question arose, whether he was by
law compellable to do so. After arguments at the bar which lasted many
days,--

_Fleming, C. B._, said: "The defendant's plea in this case is without
precedent or example, for he alleges that the imposition which the king
has laid is '_indebitè, injustè, et contra leges Angliæ imposita_, and,
therefore, he refused to pay it.' The king, as is commonly said in our
books, _cannot do wrong_; and if the king seize any land without cause, I
ought to sue to him in humble manner (_humillime supplicavit_, &c.), and
not in terms of opposition. The matter of the plea first regards the
prerogative, and to derogate from that is a part most undutiful in any
subject. Next it concerns the transport of commodities into and out of
the realm, the due regulation of which is left to the king for the public
good. The imposition is properly upon currants, and not upon the
defendant, for upon him no imposition shall be but by Parliament.(!) The
things are currants, a foreign commodity. The king may restrain the person
of a subject in leaving or coming into the realm, and _a fortiori_, may
impose conditions on the importation or exportation of his goods. To the
king is committed the government of the realm; and Bracton says, 'that for
his discharge of his office God hath given him the power to govern.' This
power is double--ordinary and absolute. The ordinary is for the profit of
particular subjects--the determination of civil justice; that is nominated
by civilians _jus privatum_, and it cannot be changed without Parliament.
The absolute power of the king is applied for the general benefit of the
people; it is most properly named _policy_, and it varieth with the time,
according to the wisdom of the king, for the common good. If this
imposition is matter of state, it is to be ruled by the rules of policy,
and the king hath done well, instead of 'unduly, unjustly, and contrary to
the laws of England.' All commerce and dealings with foreigners, like war
and peace and public treaties, are regulated and determined by the
absolute power of the king. No importation or exportation can be but at
the king's ports. They are his gates, which he may open or close when and
on what conditions he pleases. He guards them with bulwarks and
fortresses, and he protects ships coming hither from pirates at sea; and
if his subjects are wronged by foreign princes, he sees that they are
righted. Ought he not, then, by the custom he imposes, to enable himself
to perform these duties? The impost to the merchant is nothing, for those
who wish for his commodities must buy them subject to the charge; and, in
most cases, it shall be paid by the foreign grower, and not by the English
consumer. As to the argument that the currants are _victual_, they are
rather a delicacy, and are no more necessary than wine, on which the king
lays what customs seemeth him good. For the amount of the imposition it is
not unreasonable, seeing that it is only four times as much as it was
before. The wisdom and providence of the king must not be disputed by the
subject; by intendment they cannot be severed from his person. And to
argue _a posse ad actum_, because by his power he may do ill, is no
argument to be used in this place. If it be objected that no reason is
assigned for the rise, I answer it is not reasonable that the king should
express the cause and consideration of his actions; these are _arcana
regis_, and it is for the benefit of every subject that the king's
treasure should be increased."

He then at enormous length went over all the authorities and acts of
Parliament, contending that they all prove the king's power to lay what
taxes he pleases on goods imported, and he concluded by giving judgment
for the crown.

Historians take no notice of this decision, although it might have
influenced the destinies of the country much more than many of the battles
and sieges with which they fill their pages. Had our foreign commerce then
approached its present magnitude, Parliaments would never more have met in
England,--duties on tea, sugar, timber, tobacco, and corn, imposed by
royal proclamation, being sufficient to fill the exchequer,--and the
experiment of ship money would never have been necessary. The chief baron
most certainly misquotes, misrepresents, and mystifies exceedingly; but,
however fallacious his reasoning, the judgment ought not to be passed over
in silence by those who pretend to narrate our annals, for it was
pronounced by a court of competent jurisdiction, and it was acted upon for
years as settling the law and constitution of the country.[38]

King James declared that Chief Baron Fleming was a judge to his heart's
content. He had been somewhat afraid when he came to England that he might
hear such unpalatable doctrines as had excited his indignation in
Buchanan's treatise, "_De Jure Regni apud Scotis_," and he expressed great
joy in the solemn recognition that he was an absolute sovereign. Our
indignation should be diverted from him and his unfortunate son, to the
base sycophants, legal and ecclesiastical, who misled them.

On the death of Popham, no one was thought so fit to succeed him as
Fleming, of whom it was always said that, "_though slow, he was sure_;"
and he became chief justice of England the very same day on which Francis
Bacon mounted the first step of the political ladder, receiving the
comparatively humble appointment of solicitor general.

Lord Chief Justice Fleming remained at the head of the common law rather
more than six years. During that time the only case of general interest
which arose in Westminster Hall was that of the Postnati. As might be
expected, to please the king, he joined cordially in what I consider the
illegal decision, that persons born in Scotland after the accession of
James to the throne of England, were entitled to all the privileges of
natural born subjects in England, although it was allowed that Scotland
was an entirely separate and independent kingdom. Luckily, the question is
never likely again to arise since the severance of the crown of Hanover
from that of Great Britain; but if it should, I do not think that Calvin's
case could by any means be considered a conclusive authority, being
founded upon such reasoning as that "if our king conquer a Christian
country, its laws remain till duly altered; whereas if he conquer an
infidel country, the laws are _ipso facto_ extinct, and he may massacre
all the inhabitants."

Lord Chief Justice Fleming took the lead in the prosecution of the
Countess of Shrewsbury before the Privy Council, on the charge of having
refused to be examined respecting the part she had acted in bringing about
a clandestine marriage, in the Tower of London, between the Lady Arabella
Stuart, the king's cousin, and Sir William Somerset, afterwards Duke of
Somerset. He laid it down for law, that "it was a high misdemeanor to
marry, or to connive at the marriage of any relation of the king without
his consent, and that the countess's refusal to be examined was 'a
contempt of the king, his crown and dignity, which, if it were to go
unpunished, might lead to many dangerous enterprises against the state.'
He therefore gave it as his opinion that she should be fined £10,000 and
confined during the king's pleasure."

While this poor creature presided in the King's Bench, he was no doubt
told by his officers and dependants that he was the greatest chief justice
that had appeared there since the days of Gascoigne and Fortescue; but he
was considered a very small man by all the rest of the world, and he was
completely eclipsed by Sir Edward Coke, who at the same time was chief
justice of the Common Pleas, and who, to a much more vigorous intellect
and deeper learning, added respect for constitutional liberty and
resolution at every hazard to maintain judicial independence. From the
growing resistance in the nation to the absolute maxims of government
professed by the king and sanctioned by almost all his judges, there was a
general desire that the only one who stood up for law against prerogative
should be placed in a position which might give greater weight to his
efforts on the popular side; but of this there seemed no prospect, for the
subservient Fleming was still a young man, and likely to continue many
years the tool of the government.

In the midst of these gloomy anticipations, on the 15th day of October,
1613, the joyful news was spread of his sudden death. I do not know, and I
have taken no pains to ascertain, where he was buried, or whether he left
any descendants. In private life he is said to have been virtuous and
amiable, and the discredit of his incompetency in high office ought to be
imputed to those who placed him there, instead of allowing him to prose on
as a drowsy serjeant at the bar of the Common Pleas, the position for
which nature had intended him.




CHAPTER VI.

NICHOLAS HYDE.


After the abrupt dissolution of the second Parliament of Charles I.
without the grant of a supply, all redress of grievances being refused,
the plan was deliberately formed of discontinuing entirely the use of
popular assemblies in England, and of ruling merely by prerogative. For
this purpose it was indispensably necessary that the king should have the
power of imposing taxes, and the power of arbitrary imprisonment. He began
to exercise both these powers by assessing sums which all persons of
substance were called upon to contribute to the revenue according to their
supposed ability, and by issuing warrants for committing to jail those who
resisted the demand. But these measures could not be rendered effectual
without the aid of the judges; for hitherto in England the validity of any
fiscal imposition might be contested in a court of justice; and any man
deprived of his liberty might, by suing out a writ of _habeas corpus_,
have a deliberate judgment upon the question "whether he was lawfully
detained in custody or not." Sir Thomas Darnel, Sir Edmund Hampden, and
other public-spirited men, having peremptorily refused to pay the sums
assessed upon them, had been cast into prison, and were about to seek
legal redress for their wrongs.

In the coming legal contest, almost every thing would depend upon the
chief justice of the King's Bench. According to a well-known fashion which
prevailed in those times, the attorney general, by order of the
government, sounded Sir Randolph Crewe, then holding that office, to which
he had been appointed hardly two years before, respecting his opinions on
the agitated points, and was shocked to hear a positive declaration from
him that by the law of England, no tax or talliage, under whatever name or
disguise, can be laid upon the people without the authority of Parliament,
and that the king cannot imprison any of his subjects without a warrant
specifying the offence with which they are charged. This being reported to
the cabinet, Sir Randolph Crewe was immediately dismissed from his office;
and, in a few weeks after, Sir Nicholas Hyde was made chief justice in his
stead. He was the uncle of the great Lord Clarendon. They were sprung from
the ancient family of "_Hyde of that ilk_" in the county palatine of
Chester; their branch of it having migrated, in the sixteenth century,
into the west of England. The chief justice was the fourth son of Lawrence
Hyde, of Gussage St. Michael, in the county of Dorset.

Before being selected as a fit tool of an arbitrary government, he had
held no office whatever; but he had gained the reputation of a sound
lawyer, and he was a man of unexceptionable character in private life. He
was known to be always a stanch stickler for prerogative; but this was
supposed to arise rather from the sincere opinion he had formed of what
the English constitution was, or ought to be, than from a desire to
recommend himself for promotion. He is thus good naturedly introduced by
Rushworth:--

"Sir Randolf Crewe, showing no zeal for the advancement of the loan, was
removed from his place of lord chief justice, and Sir Nicholas Hyde
succeeded in his room--a person who, for his parts and abilities, was
thought worthy of that preferment; yet, nevertheless, came to the same
with a prejudice, coming in the place of one so well-beloved, and so
suddenly removed."

Whether he was actuated by mistaken principle or by profligate ambition,
he fully justified the confidence reposed in him by his employers. Soon
after he took his seat in the Court of King's Bench, Sir Thomas Darnel and
several others, committed under the same circumstances, were brought up
before him on a writ of _habeas corpus_; and the question arose whether
the King of England, by _lettre de cachet_, had the power of perpetual
imprisonment without assigning any cause. The return of the jailer, being
read, was found to set out, as the only reason for Sir Thomas Darnel's
detention, a warrant, signed by two privy councillors, in these words:--

"Whereas, therefore, the body of Sir Thomas Darnel hath been committed to
your custody, these are to require you still to detain him, and to let you
know that he was and is committed BY THE SPECIAL COMMAND OF HIS MAJESTY."

Lord Chief Justice Hyde proceeded with great temper and seeming respect
for the law, observing, "Whether the commitment be by the king or others,
this court is a place where the king doth sit in person, and we have power
to examine it; and if any man hath injury or wrong by his imprisonment, we
have power to deliver and discharge him; if otherwise, he is to be
remanded by us to prison again."

Selden, Noy,[40] and the other counsel for the prisoners, encouraged by
this intimation, argued boldly that the warrant was bad on the face of it,
_per speciale mandatum domini regis_ being too general, without specifying
an offence for which a person was liable to be detained without bail;
that the warrant should not only state the authority to imprison, but the
cause of the imprisonment; and that if this return were held good, there
would be a power of shutting up, till a liberation by death, any subject
of the king, without trial and without accusation. After going over all
the common law cases and the acts of Parliament upon the subject, from
MAGNA CHARTA downwards, they concluded with the _dictum_ of Paul the
apostle, "It is against reason to send a man to prison without showing a
cause."

_Hyde, C. J._--"This is a case of very great weight and great expectation.
I am sure you look for justice from hence, and God forbid we should sit
here but to do justice to all men, according to our best skill and
knowledge; for it is our oaths and duties so to do. We are sworn to
maintain all prerogatives of the king: that is one branch of our oath; but
there is another--to administer justice equally to all people. That which
is now to be judged by us is this: 'Whether, where one is committed by the
king's authority, and by cause declared of his commitment, we ought to
deliver him by bail, or to remand him.'"

From such a fair beginning,[41] there must have been a general
anticipation of a just judgment; but, alas! his lordship, without
combating the arguments, statutes, or texts of Scripture relied upon,
said, "The court must be governed by precedents;"[42] and then going over
all the precedents which had been cited, he declared that there was not
one where, there being a warrant _per speciale mandatum domini regis_, the
judges had interfered and held it insufficient. He said he had found a
resolution of all the judges in the reign of Queen Elizabeth, that if a
man be committed by the commandment of the king, he is not to be delivered
by a _habeas corpus_ in this court, "for we know not the cause of the
commitment." Thus he concluded:--

"What can we do but walk in the steps of our forefathers? Mr. Attorney
hath told you the king has done it for cause sufficient, and we trust him
in great matters. He is bound by law, and he bids us proceed by law; we
are sworn so to do, and so is the king. We make no doubt the king, he
knowing the cause why you are imprisoned, will have mercy. On these
grounds we cannot deliver you, but you must be remanded."[43]

This judgment was violently attacked in both houses of Parliament. In the
House of Lords the judges were summoned, and required to give their
reasons for it. Sir Nicholas Hyde endeavored to excuse himself and his
brethren from this task by representing it as a thing they ought not to do
without warrant from the king. Lord Say observed, "If the judges will not
declare themselves, we must take into consideration the point of our
privilege." To soothe the dangerous spirit which disclosed itself,
Buckingham obtained leave from the king that the judges should give their
reasons, and Sir Nicholas Hyde again went over all the authorities which
had been cited in the King's Bench in support of the prerogative. These
were not considered by any means satisfactory; but, as the chief justice
could no longer be deemed contumacious, he escaped the commitment with
which he had been threatened. Sir Edward Coke,[44] and the patriots in the
House of Commons, were not so easily appeased, and they for some time
threatened Lord Chief Justice Hyde and his brethren with an impeachment;
but it was hoped that all danger to liberty would be effectually guarded
against for the future by compelling the reluctant king to agree to the
PETITION OF RIGHT. Before Charles would give the royal assent to
it--meaning not to be bound by it himself, but afraid that the judges
would afterwards put limits to his power of arbitrary imprisonment--he
sent for Chief Justice Hyde and Chief Justice Richardson, of the Common
Pleas, to Whitehall, and directed them to return to him the answer of
themselves and their brethren to this question, "Whether in no case
whatsoever the king may commit a subject without showing cause." The
answer shows that they had been daunted by the denunciations of Sir Edward
Coke, and that they were driven to equivocate: "We are of opinion that, by
the general rule of law, the cause of commitment by his majesty ought to
be shown; yet some cases may require such secrecy that the king may
commit a subject without showing the cause, for a convenient time."
Charles then delivered to them a second question, and desired them to keep
it very secret, "Whether, if to a _habeas corpus_ there be returned a
warrant from the king without any special cause, the judges ought to
liberate him before they understand from the king what the cause is." They
answered, "If no cause be assigned in the warrant, the party ought, by the
general rule of law, to be liberated; but, if the case requireth secrecy,
and may not presently be disclosed, the court, in its discretion, may
forbear to liberate the prisoner for a convenient time, till they are
advertised of the truth thereof." He then came to the point with his third
question, "Whether, if the king grant the Commons' PETITION, he doth not
thereby exclude himself from committing or restraining a subject without
showing a cause." Hyde reported this response: "Every law, after it is
made, hath its exposition, which is to be left to the courts of justice to
determine; and, although the PETITION be granted, there is no fear of
conclusion, as is intimated in the question."

The judges having thus pledged themselves to repeal the act for him by
misconstruing it,[45] he allowed it to be added to the statute book. No
sooner was the Parliament that passed it abruptly dissolved than it was
flagrantly violated, and Selden, Sir John Eliot, and other members of the
House of Commons, were arrested for the speeches they had delivered, and
for requiring the speaker to put from the chair a motion which had been
made and seconded. This proceeding was more alarming to public liberty
than any thing that had been before attempted by the crown; if it
succeeded, there was no longer the hope of any redress in Parliament for
the corrupt decisions of the common law courts.

To make all sure by an extrajudicial opinion,[46] Lord Chief Justice Hyde
and the other judges were assembled at Serjeants' Inn, and, by the king's
command, certain questions were put to them by the attorney general. The
answers to these, given by the mouth of the chief justice, if acted upon,
would forever have extinguished the privilege and the independence of the
House of Commons: "That a Parliament man committing an offence against the
king in Parliament, not in a parliamentary course, may be punished after
the Parliament is ended; for, though regularly he cannot be compelled out
of Parliament to answer things done in Parliament in a parliamentary
course, it is otherwise where things are done exorbitantly;" and "that by
false slanders to bring the lords of the council and the judges, not in a
parliamentary way, into the hatred of the people, and the government into
contempt, was punishable out of Parliament, in the Star Chamber, as an
offence committed in Parliament beyond the office, and besides the duty,
of a Parliament man."

The parties committed were brought up by _habeas corpus_, and, the public
being much scandalized, an offer was made that they might be bailed; but,
they refusing to give bail, which they said would be compromising the
privileges of the House of Commons, Lord Chief Justice Hyde remanded them
to jail.

The attorney general having then filed an ex-officio information against
them for their misconduct in Parliament, they pleaded to the jurisdiction
of the court "because these offences, being supposed to be done in
Parliament, ought not to be punished in this court, or elsewhere than in
Parliament."

Chief Justice Hyde tried at once to put an end to the case by saying that
"all the judges had already resolved with one voice, that an offence
committed in Parliament, criminally or contemptuously, the Parliament
being ended, rests punishable in the Court of King's Bench, in which the
king by intendment sitteth."

The counsel for the defendants, however, would be heard, and were heard in
vain; for Chief Justice Hyde treated their arguments with scorn, and
concluded by observing, "As to what was said, that an 'inferior court
cannot meddle with matters done in a superior,' true it is that an
inferior court cannot meddle with the _judgments_ of a superior court; but
if particular members of a superior court offend, they are ofttimes
punishable in an inferior court--as if a judge shall commit a capital
offence in this court, he may be arraigned thereof at Newgate. The
behavior of Parliament men ought to be parliamentary. Parliament is a
higher court than this, but every member of Parliament is not a court, and
if he commit an offence we may punish him. The information charges that
the defendants acted _unlawfully_, and they could have no privilege to
violate the law. No outrageous speeches have been made against a great
minister of state in Parliament that have not been punished." The plea
being overruled, the defendants were sentenced to be imprisoned during the
king's pleasure, and to be fined, Sir John Eliot in £2000, and the others
in smaller sums.

This judgment was severely condemned by the House of Commons at the
meeting of the Long Parliament, and was afterwards reversed, on a writ of
error, by the House of Lords. But Lord Chief Justice Hyde escaped the fate
of his predecessor, Chief Justice Tresilian, who was hanged for
promulgating similar doctrines, for he was carried off by disease when he
had disgraced his office four years and nine months. He died at his house
in Hampshire, on the 25th of August, 1631.

In justice to the memory of Sir Nicholas Hyde, I ought to mention that he
was much respected and lauded by true courtiers. Sir George Croke
describes him as "a grave, religious, discreet man, and of great learning
and piety." Oldmixon pronounces him to have been "a very worthy
magistrate," and highly applauds his judgment in favor of the power of the
crown to imprison and prosecute Parliament men for what they have done in
the House of Commons.




CHAPTER VII.

JOHN BRAMPSTON.


On the vacancy in the office of chief justice of the King's Bench, created
by the death of Sir Thomas Richardson, A. D. 1635, the king and his
ministers were exceedingly anxious to select a lawyer fitted to be his
successor. Resolved to raise taxes without the authority of Parliament,
they had launched their grand scheme of ship money, and they knew that its
validity would speedily be questioned. To lead the opinions of the judges,
and to make a favorable impression on the public, they required a chief on
whose servility they could rely, and who, at the same time, should have a
great reputation as a lawyer, and should be possessed of a tolerable
character for honesty. Such a man was Mr. Serjeant Brampston.

He was born at Maldon, in Essex, of a family founded there in the reign of
Richard II. by a citizen of London, who had made a fortune in trade and
had served the office of sheriff. When very young, he was sent to the
university of Cambridge; and there he gained high renown by his skill in
disputation, which induced his father to breed him to the bar.
Accordingly, he was transferred to the Middle Temple, and studied law
there for seven years with unwearied assiduity. At the end of this period,
he was called to the bar, having then amassed a store of law sufficient to
qualify him at once to step upon the bench. Different public bodies strove
to have the benefit of his advice; and very soon he was standing counsel
for his own university, and likewise for the city of London, with an
annual fee _pro concilio impenso et impendendo_, (for counsel given and to
be given.) Having been some years an "apprentice," he took the degree of
serjeant at law.

According to a practice very common in our profession, he had, in the
language of Mr. Gurney, the famous stenographer, "started in the sedition
line," that is, defending persons prosecuted for political offences by the
government. He was counsel for almost all the patriots who, in the end of
the reign of James I. and the beginning of the reign of Charles I., were
imprisoned for their refractory conduct in the House of Commons; and one
of the finest arguments to be found in our books is one delivered by him
in Sir Thomas Darnel's case, to prove that a warrant of commitment by
order of the king, without specifying the offence, is illegal.

He refused a seat in the House of Commons, as it suited him better to
plead for those who were in the Tower than to be sent thither himself. By
and by, the desire of obtaining the honors of the profession waxed strong
within him, and he conveyed an intimation, by a friend, to the lord keeper
that it would be much more agreeable to him to be retained for the
government than to be always against it. The offer was accepted; he was
taken into the counsels of Noy, the attorney general, and he gave his
assistance in defending all stretches of prerogative. Promotions were now
showered down upon him; he was made chief justice of Ely, attorney general
to the queen, king's serjeant, and a knight. Although very zealous for the
crown, and really unscrupulous, he was anxious to observe decency of
deportment, and to appear never to transgress the line of professional
duty.

Noy[47] would have been the man to be appointed chief justice of the
King's Bench to carry through his tax by a judicial decision in its favor,
but he had suddenly died soon after the ship money writs were issued; and,
after him, Sir John Brampston was deemed the fittest person to place at
the head of the common law judges. On the 18th of April, 1635, his
installation took place, which was, no doubt, very splendid; but we have
no account of it except the following by Sir George Croke:--

"First, the lord keeper made a grave and long speech, signifying the
king's pleasure for his choice, and the duties of his place; to which,
after he had answered at the bar, returning his thanks to the king, and
promising his endeavor of due performance of his duty in his place, he
came from the bar into court, and there kneeling, took the oaths of
supremacy and allegiance: then standing, he took the oath of judge: then
he was appointed to come up to the bench, and then his patent (which was
only a writ) being read, the lord keeper delivered it to him. But Sir
William Jones (the senior puisne judge) said the patent ought to have been
read before he came up to the bench."[48]

In quiet times, Lord Chief Justice Brampston would have been respected as
an excellent judge. He was above all suspicion of bribery, and his
decisions in private causes were sound as well as upright. But, unhappily,
he by no means disappointed the expectations of the government.[49]

Soon after his elevation, he was instructed to take the opinion privately
of all the judges on the two celebrated questions:--

"1. Whether, in cases of danger to the good and safety of the kingdom, the
king may not impose ship money for its defence and safeguard, and by law
compel payment from those who refuse? 2. Whether the king be not the sole
judge both of the danger, and when and how it is to be prevented?"

There is reason to think that he himself was taken in by the craft of Lord
Keeper Coventry, who represented that the opinion of the twelve judges was
wanted merely for the king's private satisfaction, and that no other use
would be made of it. At a meeting of all the judges in Serjeant's Inn
Hall, Lord Chief Justice Brampston produced an answer to both questions in
the affirmative, signed by himself. Nine other judges, without any
hesitation, signed it after him; but two, Croke and Hutton, declared that
they thought the king of England never had such a power, and that, if he
ever had, it was taken away by the act _De Tallagio non concedendo_, the
Petition of Right, and other statutes; but they were induced to sign the
paper upon a representation that their signature was a mere formality.

The unscrupulous lord keeper, having got the paper into his possession,
immediately published it to the world as the unanimous and solemn decision
of all the judges of England; and payment of ship money was refused by
John Hampden alone.

His refusal brought on the grand trial, in the Exchequer Chamber, upon the
validity of the imposition. Lord Chief Justice Brampston, in a very long
judgment, adhered to the opinion he had before given for the legality of
the tax, although he characteristically expressed doubt as to the
regularity of the proceeding on technical grounds. Croke and Hutton
manfully insisted that the tax was illegal; but, all the other judges
being in favor of the crown, Hampden was ordered to pay his 20_s._

Soon after, the same point arose in the Court of King's Bench in the case
of the Lord Say, who, envying the glory which Hampden had acquired,
allowed his oxen to be taken as a distress for the ship money assessed
upon him, and brought an action of trespass for taking them. But Banks,
the attorney general, moved that counsel might not be permitted to argue
against what had been decided in the Exchequer Chamber; and Lord Chief
Justice Brampston said, "Such a judgment should be allowed to stand until
it were reversed in Parliament, and none ought to be suffered to dispute
against it."[50]

The crown lawyers were thrown into much perplexity by the freak of the
Rev. Thomas Harrison, a country parson, who can hardly be considered a
fair specimen of his order at that time, and must either have been a
little deranged in his intellect, or animated by an extraordinary
eagerness for ecclesiastical promotion. Having heard that Mr. Justice
Hutton, while on the circuit, had expressed an opinion unfavorable to ship
money, he followed him to London, and, while this reverend sage of the law
was seated with his brethren on the bench of the Court of Common Pleas,
and Westminster Hall was crowded with lawyers, suitors, and idlers,
marched up to him, and making proclamation, "_Oyez! Oyez! Oyez!_" said
with a loud voice, "Mr. Justice Hutton, you have denied the king's
supremacy, and I hereby charge you with being guilty of high treason." The
attorney general, however much he might secretly honor such an ebullition
of loyalty, was obliged to treat it as an outrage, and an _ex officio_
information was filed against the delinquent for the insult he had offered
to the administration of justice. At the trial the reverend defendant
confessed the speaking of the words, and gloried in what he had done,
saying,--

"I confess that judges are to be honored and revered as sacred persons so
long as they do their duty; but having taken the oath of supremacy many
times, I am bound to maintain it, and when it is assailed, as by the
denying of ship money, it is time for every loyal subject to strike in."
_Brampston, C. J._--"The denying of ship money may be, and I think is,
very wrong; but is it against the king's supremacy?" _Harrison._--"As a
loyal subject, I did labor the defence of his majesty, and how can I be
guilty of a crime? I say again that Mr. Justice Hutton has committed
treason, for upon his charge the people of the country do now deny ship
money. His offence being openly committed, I conceived it not amiss to
make an open accusation. The king will not give his judges leave to speak
treason, nor have they power to make or pronounce laws against his
prerogative. We are not to question the king's actions; they are only
between God and his own conscience. '_Sufficit regi, quod Deus est._' This
thesis I will stand to--that whatsoever the king in his conscience
thinketh he may require, we ought to yield."[51]

The defendant having been allowed to go on in this strain for a long time,
laying down doctrines new in courts of justice, although in those days
often heard from the pulpit, the chief justice at last interposed, and
said,--

"Mr. Harrison, if you have any thing to say in your own defence, proceed;
but this raving must not be suffered. Do you not think that the king may
govern his people by law?" _Harrison._--"Yes, and by something else too.
If I have offended his majesty in this, I do submit to his majesty, and
crave his pardon." _Brampston, C. J._--"Your 'If' will be very ill taken
by his majesty; nor can this be considered a submission."

The defendant, being found guilty, was ordered to pay a fine to the king
of £5000, and to be imprisoned--without prejudice to the remedy of Mr.
Justice Hutton by action. Such an action was accordingly brought, and so
popular was Mr. Justice Hutton, that he recovered £10,000 damages; whereas
it was said that, if the chief justice had been the plaintiff in an action
for defamation, he need not have expected more than a Norfolk groat.

Lord Chief Justice Brampston's services were likewise required in the Star
Chamber. He there zealously assisted Archbishop Laud in persecuting
Williams, Bishop of Lincoln, ex-keeper of the great seal. When the
sentence was to be passed on this unfortunate prelate, ostensibly for
tampering with the witnesses who were to give evidence against him on a
former accusation, which had been abandoned as untenable, but in reality
for opposing Laud's Popish innovations in religious ceremonies, Brampston
declaimed bitterly against the right reverend defendant, saying,--

"I find my Lord Bishop of Lincoln much to blame in persuading,
threatening, and directing of witnesses--a foul fault in any, but in him
most gross who hath _curam animarum_ throughout all his diocese. To
destroy men's souls is most odious, and to be severely punished. I do hold
him not fit to have the cure of souls, and therefore I do censure him to
be suspended _tam ab officio quam a beneficio_, to pay a fine of £10,000,
and to be imprisoned during the king's pleasure."

This sentence, although rigorously executed, did not satiate the vengeance
of the archbishop; and the bishop, while lying a prisoner in the Tower,
having received some letters from one of the masters of Westminster
School, using disrespectful language towards the archbishop, and calling
him "a little great man," a new information was filed against the bishop
for not having disclosed these letters to a magistrate, that the writer
might have been immediately brought to justice. Of course he was found
guilty; and when the deliberation arose about the punishment, thus spoke
Lord Chief Justice Brampston:--

"The concealing of the libel doth by no means clear my Lord Bishop of
Lincoln, for there is a difference between a letter which concerns a
private person and a public officer. If a libellous letter concern a
private person, he that receives it may conceal it in his pocket or burn
it; but if it concern a public person, he ought to reveal it to some
public officer or magistrate. Why should my Lord of Lincoln keep these
letters by him, but to the end to publish them, and to have them at all
times in readiness to be published? I agree in the proposed sentence,
that, in addition to a fine of £5000 to the king, he do pay a fine of
£3000 to the archbishop, seeing the offence is against so honorable a
person, and there is not the least cause of any grievance or wrong that he
hath done to my Lord of Lincoln. For his being degraded, I leave it to
those of the Ecclesiastical Court to whom it doth belong. As to the
pillory, I am very sorry and unwilling to give such a sentence upon any
man of his calling and degree. But when I consider the quality of the
person, and how much it doth aggravate the offence, I cannot tell how to
spare him; for the consideration that should mitigate the punishment adds
to the enormity of the offence."

As no clerical crime had been committed for which degradation could be
inflicted, and as it was thought not altogether decent that a bishop,
wearing his lawn sleeves, his rochet, and his mitre, should stand on the
pillory, to be pelted with brickbats and rotten eggs, the lord chief
justice was overruled respecting this last suggestion, and the sentence
was limited to the two fines, with perpetual imprisonment. The defendant
was kept in durance under it till the meeting of the Long Parliament, when
he was liberated; and, becoming an archbishop, he saw his persecutor take
his place in the Tower, while he himself was placed at the head of the
Church of England.

Now came the time when Lord Chief Justice Brampston himself was to
tremble. The first grievance taken up was ship money; and both houses
resolved that the tax was illegal, and that the judgment against Hampden
for refusing to pay it ought to be set aside. Brampston was much alarmed
when he saw Strafford and Laud arrested on a charge of high treason, and
Lord Keeper Finch obliged to fly beyond the seas.

The next impeachment voted was against Brampston himself and five of his
brethren; but they were more leniently dealt with, for they were only
charged with "high crimes and misdemeanors;" and happening to be in the
House of Lords when Mr. Waller brought up the impeachment, it was ordered
"that the said judges for the present should enter into recognizances of
£10,000 each to abide the censure of Parliament." This being done, they
enjoyed their liberty, and continued in the exercise of their judicial
functions; but Mr. Justice Berkeley, who had made himself particularly
obnoxious by his indiscreet invectives against the Puritans,[52] was
arrested while sitting on his tribunal in Westminster Hall, and committed
a close prisoner to Newgate.

Chief Justice Brampston tried to mitigate the indignation of the dominant
powers by giving judgment in the case of _Chambers_ v. _Sir Edward
Brunfield, Mayor of London_, against the legality of ship money. To an
action of trespass and false imprisonment, the defendant justified by his
plea under "a writ for not paying of money assessed upon the plaintiff
towards the finding of a ship." There was a demurrer to the plea, so that
the legality of the writ came directly in issue. The counsel for the
defendant rose to cite Hampden's case and Lord Say's case, in which all
their lordships had concurred, as being decisive in his favor; but
Brampston, C. J., said,--

"We cannot now hear this case argued. It hath been voted and resolved in
the upper House of Parliament and in the House of Commons, _nullo
contradicente_, that the said writ, and what was done by color thereof,
was illegal. Therefore, without further dispute thereof, the court gives
judgment for the plaintiff."[53]

The Commons were much pleased with this submissive conduct, but _pro
forma_ they exhibited articles of impeachment against the chief justice.
To the article founded on ship money he answered, "that at the conference
of the judges he had given it as his opinion that the king could only
impose the charge in case of necessity, and only during the continuance of
that necessity."

The impeachment was allowed to drop; and the chief justice seems to have
coquetted a good deal with the parliamentary leaders, for, after the king
had taken the field, he continued to sit in his court at Westminster, and
to act as an attendant to the small number of peers who assembled there,
constituting the House of Lords.

But when a battle was expected, Charles, being told that the chief justice
of England was chief coroner, and, by virtue of his office, on view of the
body of a rebel slain in battle, had authority to pronounce judgment of
attainder upon him, so as to work corruption of blood and forfeiture of
lands and goods, thought it would be very convenient to have such an
officer in the camp, and summoned Lord Chief Justice Brampston to appear
at head quarters in Yorkshire. The Lords were asked to give him leave of
absence, to obey the king's summons, but they commanded him to attend them
day by day at his peril. He therefore sent his two sons to make his excuse
to the king. His majesty was highly incensed by his asking leave of the
Lords, and--considering another apology that he made, about the infirmity
of his health and the difficulty of travelling in the disturbed state of
the country, a mere pretence--by a _supersedeas_ under the great seal
dismissed him from his office, and immediately appointed Sir Robert Heath
to be chief justice of England in his stead.

Brampston must now have given in his full adhesion to the parliamentary
party, for in such favor was he with them, that, when the treaty of
Uxbridge was proceeding, they made it one of their conditions that he
should be reappointed lord chief justice of the Court of King's Bench.

Having withdrawn entirely from public life, he spent the remainder of his
days at his country house in Essex. There he expired, on the 2d of
September, 1654, in the 78th year of his age. If courage and principle had
been added to his very considerable talents and acquirements, he might
have gained a great name in the national struggle which he witnessed; but,
from his vacillation, he fell into contempt with both parties; and,
although free from the imputation of serious crimes, there is no respect
entertained for his memory.




CHAPTER VIII.

ROBERT HEATH.


We must now attend to Sir Robert Heath, who was the last chief justice of
Charles I., and was appointed by him to pass judgment, not on the living,
but on the dead. If we cannot defend all his proceedings, we must allow
him the merit--which successful members of our profession can so seldom
claim--of perfect consistency; for he started as a high prerogative
lawyer, and a high prerogative lawyer he continued to the day of his
death.

He was of a respectable family of small fortune, in Kent, and was born at
Etonbridge in that county. He received his early education at Tonbridge
School, and was sent from thence to St. John's College, Cambridge. His
course of study there is not known; but when he was transferred to the
Inner Temple, we are told that he read law and history with the
preconceived conviction that the King of England was an absolute
sovereign; and so enthusiastic was he that he converted all he met with
into arguments to support his theory. One most convenient doctrine solved
many difficulties which would otherwise have perplexed him: he maintained
that Parliament had no power to curtail the essential prerogatives of the
crown, and that all acts of Parliament for such a purpose were _ultra
vices_ and void. There is no absurdity in this doctrine, for a legislative
assembly may have only a limited power, like the Congress of the United
States of America; and it was by no means so startling then as now, when
the omnipotence of Parliament has passed into a maxim. He had no respect
whatever for the House of Commons or any of its privileges, being of
opinion that it had been called into existence by the crown only to assist
in raising the revenue, and that, if it refused necessary supplies, the
king, as _Pater Patriæ_, must provide for the defence of the realm in the
same manner as before it had existence. He himself several times refused a
seat in that assembly, which he said was "only fit for a pitiful Puritan
or a pretending patriot;" and he expressed a resolution to get on in his
profession without beginning, as many of his brethren did, by herding with
the seditious, and trying to undermine the powers which for the public
good the crown had immemorially exercised and inalienably possessed. To
enable him to defend these with proper skill and effect, he was constantly
perusing the old records; and, from the Conquest downwards, they were as
familiar to him as the cases in the last number of the periodical reports
are to a modern practitioner. Upon all questions of prerogative law which
could arise he was complete master of all the authorities to be cited for
the crown, and of the answers to be given to all that could be cited
against him.

As he would neither go into Parliament nor make a splash in Westminster
Hall in the "sedition line," his friends were apprehensive that his great
acquirements as a lawyer never would be known; but it happened that, in
the year 1619, he was appointed "reader" for the Inner Temple, and he
delivered a series of lectures, explaining his views on constitutional
subjects, which forever established his reputation.

On the first vacancy which afterwards occurred in the office of solicitor
general, he was appointed to fill it; and Sir Thomas Coventry, the
attorney general, expressed high satisfaction at having him for a
colleague. Very important proceedings soon after followed, upon the
impeachment of Lord Bacon and the punishment of the monopolists; but, as
these were all in Parliament, he made no conspicuous figure during the
remainder of the reign of James I.

Soon after the commencement of the reign of Charles I., he was promoted to
the office of attorney general; and then, upon various important
occasions, he delivered arguments in support of the unlimited power of the
crown to imprison and to impose taxes, which cannot now be read without
admiration of the learning and ingenuity which they display.

The first of these was when Sir Thomas Darnel and his patriotic associates
were brought by _habeas corpus_ before the Court of King's Bench, having
been committed in reality for refusing to contribute to the forced loan,
but upon a warrant by the king and council which did not specify any
offence. I have already mentioned the speeches of their counsel.[54] "To
these pleadings for liberty," says Hallam, "Heath, the attorney general,
replied in a speech of considerable ability, full of those high principles
of prerogative which, trampling as it were on all statute and precedent,
seemed to tell the judges that they were placed there to obey rather than
to determine."

"This commitment," he said, "is not in a legal and ordinary way, but by
the special command of our lord the king, which implies not only the fact
done, but so extraordinarily done, that it is notoriously his majesty's
immediate act, and he wills that it should be so. Shall we make inquiries
whether his commands are lawful? Who shall call in question the justice
of the king's actions? Is he to be called upon to give an account of
them?"

After arguing very confidently on the legal maxim that "the king can do no
wrong,"[55] the constitutional interpretation of which had not yet been
settled, he goes on to show how _de facto_ the power of imprisonment had
recently been exercised by the detention in custody, for years, of Popish
and other state prisoners, without any question or doubt being raised.
"Some," he observed, "there are in the Tower who were put in it when very
young: should they bring a _habeas corpus_, would the court deliver them?"
He then dwelt at great length upon the resolution of the judges in the
34th of Elizabeth in favor of a general commitment by the king, and went
over all the precedents and statutes cited on the other side, contending
that they were either inapplicable or contrary to law. He carried the
court with him, and the prisoners were remanded without any considerable
public scandal being then created.

During the stormy session in which the "Petition of Right" was passed,
Heath, not being a member of the House of Commons, had very little
trouble; but once, while it was pending, he was heard against it as
counsel for the king before a joint committee of Lords and Commons. Upon
this occasion he occupied two whole days in pouring forth his learning to
prove that the proposed measure was an infringement of the ancient,
essential, and inalienable prerogatives of the crown. He was patiently
listened to, but he made no impression on Lords or Commons; and the king,
after receiving an assurance from the judges that they would effectually
do away with the statute when it came before them for interpretation, was
obliged to go through the form of giving the royal assent to it.

As soon as the Parliament was dissolved, Heath was called into full
activity; and he now carried every thing his own way, for the extent of
the royal prerogative was to be declared by the Court of King's Bench and
the Star Chamber. Sir John Eliot, Stroud, Selden, and the other leaders of
the country party who had been the most active in carrying the "Petition
of Right," were immediately thrown into prison, and the attorney general
having assembled the judges, they were as good as their word, by declaring
that they had cognizance of all that happened in Parliament, and that they
had a right to punish whatsoever was done there by Parliament men in an
unparliamentary manner.

The imprisoned patriots having sued out writs of _habeas corpus_, it
appeared that they were detained under warrants signed by the king, "for
notable contempts committed against ourself and our government, and for
stirring up sedition against us." Their counsel argued that a commitment
by the king is invalid, as he must act by responsible officers; and that
warrants in this general form were in direct violation of the "Petition of
Right," so recently become law. But Heath still boldly argued for the
unimpaired power of arbitrary imprisonment, pretending that the "Petition
of Right" was not a binding statute. "A petition in Parliament," said he,
"is no law, yet it is for the honor and dignity of the king to observe it
faithfully; but it is the duty of the people not to stretch beyond the
words and intention of the king, and no other construction can be made of
the 'Petition' than that it is a confirmation of the ancient rights and
liberties of the subject. So that now the case remains in the same quality
and degree as it was before the 'Petition.'" He proceeded to turn into
ridicule the whole proceedings of the late Parliament, and he again went
over the bead-roll of his precedents to prove that one committed by
command of the king or Privy Council is not bailable. The prisoners were
remanded to custody.

In answer to the _information_, it was pleaded that a court of common law
had no jurisdiction to take cognizance of speeches made in the House of
Commons; that the judges had often declared themselves incompetent to give
an opinion upon such subjects; that the words imputed to Sir John Eliot
were an accusation against the ministers of the crown, which the
representatives of the people had a right to prefer; that no one would
venture to complain of grievances in Parliament if he should be subjected
to punishment at the discretion of an inferior tribunal; that the alleged
precedents were mere acts of power which no attempt had hitherto been made
to sanction; and that, although part of the supposed offences had occurred
immediately before the dissolution, so that they could not have been
punished by the last Parliament, they might be punished in a future
Parliament. But

_Heath, A. G._, replied that the king was not bound to wait for another
Parliament; and, moreover, that the House of Commons was not a court of
justice, nor had any power to proceed criminally, except by imprisoning
its own members. He admitted that the judges had sometimes declined to
give their judgment upon matters of privilege; but contended that such
cases had happened during the session of Parliament, and that it did not
follow that an offence committed in the house might not be questioned
after a dissolution.

The judges unanimously held that, although the alleged offences had been
committed in Parliament, the defendants were bound to answer in the Court
of King's Bench, in which all offences against the crown were cognizable.
The parties refusing to put in any other plea, they were convicted, and
the attorney general praying judgment, they were sentenced to pay heavy
fines, and to be imprisoned during the king's pleasure.

Heath remained attorney general two years longer. The only difficulty
which the government now had was to raise money without calling a
Parliament; and he did his best to surmount it. By his advice, a new tax
was laid on cards, and all who refused to pay it he mercilessly prosecuted
in the Court of Exchequer, where his will was law. All monopolies had been
put down at the conclusion of the last reign, with the exception of new
inventions. Under pretence of some novelty, he granted patents, vested in
particular individuals or companies the exclusive right of dealing in
soap, leather, salt, linen rags, and various other commodities, although,
of £200,000 thereby levied on the people, scarcely £1500 came into the
royal coffers. His grand expedient was to compel all who had a landed
estate of £40 a year to submit to knighthood, and to pay a heavy fee; or,
on refusal, to pay a heavy fine. This caused a tremendous outcry, and was
at first resisted; but the question being brought before the Court of
Exchequer, he delivered an argument in support of the claim, in which he
traced knighthood from the ancient Germans down to the reigns of the
Stuarts, showing that the prince had always the right of conferring it
upon all who held of him _in capite_--receiving a reasonable compliment
in return. In this instance, Mr. Attorney not only had the decision of the
court, but the law on his side. Blackstone says, "The prerogative of
compelling the king's vassals to be knighted, or to pay a fine, was
expressly recognized in Parliament by the statute _de Militibus_, 1 Ed.
II., but yet was the occasion of heavy murmurs when exerted by Charles I.,
among whose many misfortunes it was, that neither himself nor his people
seemed able to distinguish between the arbitrary stretch and the legal
exertion of prerogative."[56]

All these expedients for filling the exchequer proving unproductive, the
last hopes of despotism rested upon Noy, who, having been a patriot, was
eager to be the slave of the court, and proposed his ship money. If this
should be supported by the judges, and endured by the people, Parliaments
for ever after would have been unnecessary. Heath was willing enough to
defend it; but the inventor was unwilling to share the glory or the profit
of it with another. Luckily, at that very time, a vacancy occurred in the
office of chief justice of the Common Pleas; and there being an extreme
eagerness to get rid of Heath, notwithstanding his very zealous services
to the crown, he was "put upon the cushion," and Noy succeeded him as
attorney general.

To qualify him to be a judge, it was necessary that he should first become
a serjeant; and, according to ancient custom, he distributed rings,
choosing a motto which indicated his intention still to put the king above
the law--"_Lex Regis, vis Legis_." On the 25th of October, 1631, he came
in his parti-colored robes to the Common Pleas, and performed his
ceremonies as serjeant, and the same day kept his feast in Serjeants' Inn;
and afterwards, on the 27th of October, he was sworn in chief justice.

In the four years during which he held this office, no case of public
interest occurred in his own court; but he took an active part in the Star
Chamber, and, having prosecuted the Recorder of Salisbury for breaking a
painted window without the bishop's consent, he now sentenced him for the
offence. The grand scheme of ship money, which had been long in
preparation, was ready to be brought forward, when, to the astonishment of
the world, Heath was removed from his office. It has been said that the
government was afraid of his opinion of ship money, and wished to prefer
Finch,--the most profligate of men,--on whom they could entirely rely. The
truth seems to be, that he continued to enjoy the favor and confidence of
the government, but that a charge had been brought against him of taking
bribes, which was so strongly supported by evidence that it could not be
overlooked, although no Parliament was sitting, or ever likely to sit, and
that the most discreet proceeding, even for himself, was to remove him
quietly from his office. The removal of judges had, under the Stuarts,
become so common, that no great sensation was created by a new instance of
it, and people merely supposed that some secret displeasure had been given
to the king.

Heath presented a petition to the king, setting forth his services as
attorney general in supporting the royal right to imprison and to tax the
subject, as well as the good will he had manifested while he sat on the
bench, and expressing a hope that, as he had been severely punished for
his fault, he might not be utterly ruined, but might be permitted to
practise at the bar. To this the king, by advice of the Privy Council,
consented, on condition that he should be put at the bottom of the list of
serjeants, and should not plead against the crown in the Star Chamber.

Accordingly, he took his place at the bar of the Court of Common Pleas, as
junior, where he had presided as chief, and speedily got into considerable
business. He very soon again insinuated himself into the favor of the
government, and assisted Sir John Banks, the attorney general, in state
prosecutions. He first addressed the jury for the crown in the famous case
of Thomas Harrison, indicted for insulting Mr. Justice Hutton in open
court; leaving the attorney general to sum up the evidence.

Not having been on the bench when the judges gave the extrajudicial
opinion in favor of ship money, nor when Hampden's trial came on, he
escaped impeachment at the meeting of the Long Parliament; and on the
removal of those who were impeached, he was made a puisne judge of the
Court of King's Bench.

When hostilities were about to commence, he happened to be judge of assize
at York, where the king lay. He always protested that he was innocent of
any plot to make himself chief justice of the King's Bench; yet, knowing
that, from bodily infirmity and lukewarmness in the royal cause, Brampston
would not come to York when summoned by the king, there is strong reason
to suspect that he suggested the propriety of this summons, on the
pretence that the chief justice of England might, as chief coroner,
declare an attainder of rebels slain in battle, which would subject their
lands and goods to forfeiture. Brampston was ordered to come to York, and
not making his appearance, he was removed from his office; and Sir Robert
Heath was created chief justice of England, that he might attaint the
slaughtered rebels. Sir John Brampston, the autobiographer, son of the
judge whom Heath superseded, says, "When Sir Robert Heath had that place,
that opinion vanished, and nothing of that nature was ever put in
practice."

But in the autumn of the year 1643, the royalists having gained an
ascendency in the west of England, a scheme was formed to outlaw, for high
treason, the leaders on the Parliament side--as well those who were
directing military operations in the field, as the non-combatants who were
conducting the government at Westminster. A commission passed the great
seal, at Oxford, directed to Lord Chief Justice Heath and three other
judges who had taken the king's side, to hold a court of oyer and terminer
at Salisbury. Accordingly, they took their seats on the bench, and swore
in a grand jury, whom Heath addressed, explaining the law of high treason,
showing that flagrant overt acts had been committed by conspiring the
king's death and levying war against him, and proving by authorities that
all who aided and assisted by furnishing supplies, or giving orders or
advice to the rebels, were as guilty as those who fought against his
majesty with deadly weapons in their hands. Bills of indictment were then
preferred against the Earls of Northumberland, Pembroke, and Salisbury,
and divers members of the House of Commons. The grand jury,
however,--probably without having read Grotius and the writers on public
law, who say that when there is a civil war in a country the opposite
parties must treat each other as if they were belligerents belonging to
two independent nations, but actuated by a sense of the injustice and
impolicy of treating as common malefactors those who, seeking to reform
abuses and vindicate the liberties of their fellow-citizens, were
commanding armies and enacting laws,--returned all the bills _ignoramus_;
and there could neither be any trial nor process of outlawry.

This rash attempt only served to produce irritation, and to render the
parliamentarians more suspicious and revengeful when negotiations were
afterwards opened which might have led to a satisfactory accommodation.

In the summer of the following year, Chief Justice Heath held assizes at
Exeter, and there actually obtained the conviction of Captain Turpine, a
parliamentary officer, who had been taken in arms against the king, and
was produced as a prisoner at the bar. The sheriff appears to have refused
to carry the sentence into execution; but the unfortunate gentleman was
hanged by Sir John Berkeley, Governor of Exeter. The Parliament, having
heard of their partisan being thus put to death in cold blood, ordered
that the judges who condemned him might be impeached of high treason; but
they were afterwards satisfied with passing an ordinance to remove Heath,
and his brethren who had sat with him on this occasion, from their
judicial offices, and to disable them from acting as judges in all time to
come.

Sir Robert Heath never ventured to take his seat as chief justice of the
Court of King's Bench at Westminster; but, after travelling about for some
time with the king, fixed himself at Oxford, where he was made a doctor of
the civil law, and attended as a judge when Charles's Parliament was held
there.

When Oxford was at last obliged to surrender, and the royalists could no
longer make head in any part of England, Heath found it necessary to fly
for safety to the continent. The parliamentary leaders said that they
would not have molested him if he had confined himself to the discharge of
his judicial duties; or even if, like Lord Keeper Littleton and other
lawyers, he had carried arms for the king; but as, contrary to the law of
nations, he had proceeded against several of those who bore a commission
which the Parliament had granted to them in the king's name, they were
determined to make an example of him. Therefore, when an ordinance was
passed, granting an indemnity to the royalists who submitted, he was
excepted from it by name. After suffering great privations, he died at
Caen, in Normandy, in the month of August, 1649.

He had, from his professional gains, purchased a large landed estate,
which was sequestrated by the Parliament, but afterwards was restored by
Charles II. to his son. He had never tried to make his peace with the
dominant party by any concession, and he declared that "he would rather
suffer all the ills of exile than submit to the rule of those who had
first fought their sovereign in the field, and then had murdered him on
the scaffold." With the exception of his bribery, which was never properly
inquired into, and does not seem to have injured him much in the opinion
of his contemporaries, no grievous stain is attached to his memory; and we
must feel respect for the constancy with which he adhered to his political
principles, although we cannot defend them.




CHAPTER IX.

ROBERT FOSTER.


At the restoration of Charles II. it was considered necessary to sweep
away the whole of the judges from Westminster Hall, although, generally
speaking, they were very learned and respectable, and they had
administered justice very impartially and satisfactorily.[57] Immense
difficulty was found in replacing them. Clarendon was sincerely desirous
to select the fittest men that could be found, but from his long exile he
was himself entirely unacquainted with the state of the legal profession,
and, upon making inquiries, hardly any could be pointed out, whose
political principles, juridical acquirements, past conduct, and present
position entitled them to high preferment. The most eminent barristers on
the royalist side had retired from practice when the civil war began, and
the new generation which had sprung up had taken an oath to be faithful to
the commonwealth. One individual was discovered--Sir Orlando
Bridgman--eminent both for law and for loyalty. Early distinguished as a
rising advocate, he had sacrificed his profits that he might assist the
royal cause by carrying arms; and, refusing to profess allegiance to those
whom he considered rebels, he had spent years in seclusion,--still
devoting himself to professional studies, in which he took the highest
delight. At first, however, it was thought that he could not properly be
placed in a higher judicial office than that of chief baron of the
Exchequer; and the chiefships of the King's Bench and Common Pleas were
allowed to remain vacant some months, _puisnies_ being appointed in each
court to carry on the routine business.

At last a chief justice of England was announced--Sir Robert Foster; and
his obscurity testified the perplexity into which the government had been
thrown in making a decent choice. He was one of the very few survivors of
the old school of lawyers, which had flourished before the troubles began;
he had been called to the degree of serjeant at law so long ago as the
30th of May, 1636, at a time when Charles I., with Strafford for his
minister, was ruling with absolute sway, was imposing taxes by his own
authority, was changing the law by proclamation, and hoped never again to
be molested by Parliaments. This system was condemned and opposed by the
most eminent men at the English bar, but was applauded and supported by
some who conscientiously thought that all popular institutions were
mischievous, and by more who thought that court favor gave them the best
chance of rising in the world. Foster is supposed to have defended ship
money, the cruel sentences of the Star Chamber, the billeting of soldiers
to live at free quarters, and other flagrant abuses, as well from a
sincere love of despotism as from a desire to recommend himself to those
in power.[58]

At the time when tyranny had reached its culminating point, he was
appointed a puisne judge of the Court of Common Pleas. Luckily for him,
Hampden's case had been decided before his appointment, and he was not
impeached by the Long Parliament. When the civil war broke out, he
followed the king; and afterwards assisted in attempting to hold a Court
of Common Pleas at Oxford, but sat alone, and his tribunal was without
advocates or suitors. An ordinance passed the House of Commons for
removing him from his office, and on account of his excessive zeal in the
royal cause, he was obliged to compound for his estate by paying a very
large fine.

After the king's death, he continued in retirement till the Restoration.
He is said to have had a small chamber in the Temple, and like Sir Orlando
Bridgman and Sir Jeffery Pelman, to have practised as a chamber counsel,
chiefly addicting himself to conveyancing.

The first act of the government of Charles II. was to reinstate Foster in
his old office. There was a strong desire to reward his constancy with
fresh honors; but he was thought unfit to be raised higher, and the office
of chief justice of the King's Bench could not be satisfactorily filled
up.

Only six common law judges had been appointed when the trials of the
regicides came on. Foster, being one of them, distinguished himself for
his zeal; and when they were over, all scruples as to his fitness having
vanished, he, who a few months before, shut up in his chamber that he
might escape the notice of the Roundheads, never expected any thing better
than to receive a broad piece for preparing a conveyance according to the
recently invented expedient of "lease and release," was constituted the
highest criminal judge in the kingdom.

He presided in the Court of King's Bench for two years. Being a deep
black letter lawyer, he satisfactorily disposed of the private cases which
came before him, although he was much perplexed by the improved rules of
practice introduced while he was in retirement, and he was disposed to
sneer at the decisions of Chief Justice Rolle, a man in all respects much
superior to himself. In state prosecutions he showed himself as
intemperate and as arbitrary as any of the judges who had been impeached
at the meeting of the Long Parliament.

To him chiefly is to be imputed the disgraceful execution as a traitor, of
one who had disapproved of the late king's trial; who was included in the
present king's promise of indemnity from Breda;[59] in whose favor a
petition had been presented by the Convention Parliament; who was supposed
to be expressly pardoned by the answer to that petition;[60] but who had
incurred the inextinguishable hatred of the Cavaliers by the part he had
taken in bringing about the conviction of the Earl of Strafford. Sir Henry
Vane the younger,[61] after lying two years in prison, during which the
shame of putting him to death was too strong to be overcome, was at last
arraigned for high treason at the King's Bench bar. As he had actually
tried to save the life of Charles I., the treason charged upon him was for
conspiring the death of Charles II., whose life he would have been equally
willing to defend. The indictment alleged this overt act, "that he did
take upon him the government of the forces of this nation by sea and land,
and appointed colonels, captains, and officers." The crown lawyers
admitted that the prisoner had not meditated any attempt upon the natural
life of Charles II., but insisted that, by acting under the authority of
the commonwealth, he had assisted in preventing the true heir of the
monarchy from obtaining possession of the government, and thereby, in
point of law, had conspired his death, and had committed high treason.
Unassisted by counsel, and browbeaten by Lord Chief Justice Foster, he
made a gallant defence; and besides pointing out the bad faith of the
proceeding, after the promises of indemnity and pardon held out to him,
contended that, in point of law, he was not guilty, on the ground that
Charles II. had never been in possession of the government as king during
any part of the period in question: that the supreme power of the state
was then vested in the Parliament, whose orders he had obeyed; that he was
in the same relation to the exiled heir as if there had been another king
upon the throne; and that the statute of Henry VII., which was only
declaratory of the common law and of common sense, expressly provided that
no one should ever be called in question for obeying, or defending by
force of arms, a king _de facto_, although he had usurped the throne. He
concluded by observing that the whole English nation might be included in
the impeachment.

_Foster, C. J._--"Had there been another king on the throne, though a
usurper, you might have been exempted by the statute from the penalties
of treason. But the authority you recognized was called by the rebels
either 'Commonwealth' or 'Protector,' and the statute takes no notice of
any such names or things. From the moment that the martyred sovereign
expired, our lord the king that now is must be considered as entitled to
our allegiance, and the law declares that he has ever since occupied his
ancestral throne. Therefore, obedience to any usurped authority was
treason to him. You talk of the sovereign power of Parliament, but the law
knows of no sovereign power except the power of our sovereign lord the
king. With respect to the number against whom the law shall be put in
force, that must depend upon his majesty's clemency and sense of justice.
To those who truly repent he is merciful; but the punishment of those who
repent not is a duty we owe both to God and to our fellow-men."

A verdict of guilty being returned, the usual sentence was pronounced; but
the king, out of regard to his own reputation, if not to the dictates of
justice and mercy, was very reluctant to sanction the execution of it,
till Chief Justice Foster, going the following day to Hampton Court to
give him an account of the trial, represented the line of defence taken by
the prisoner as inconsistent with the principles of monarchical
government, and said that the supposed promises of pardon were by no means
binding, "for God, though ofttimes promising mercy, yet intends his mercy
only for the penitent." The king, thus wrought on, notwithstanding his
engagement to the contrary, signed the death-warrant, and Vane was
beheaded on Tower Hill, saying with his last breath, "I value my life less
in a good cause than the king does his promise." Mr. Fox, and other
historians, consider this execution "a gross instance of tyranny," but
have allowed Chief Justice Foster, who is mainly responsible for it, to
escape without censure.

The arbitrary disposition of this chief justice was strongly manifested
soon after, when John Crook, and several other very loyal Quakers, were
brought before him at the Old Bailey for refusing to take the oath of
allegiance.

_Foster, C. J._--"John Crook, when did you take the oath of allegiance?"
_Crook._--"Answering this question in the negative is to accuse myself;
which you ought not to put me upon. '_Nemo debet seipsum prodere._' I am
an Englishman, and I ought not to be taken, nor imprisoned, nor called in
question, nor put to answer, but according to the law of the land."
_Foster, C. J._:--"You are here required to take the oath of allegiance,
and when you have done that, you shall be heard." _Crook._--"You that are
judges on the bench ought to be my counsel, not my accusers." _Foster, C.
J._--"We are here to do justice, and are upon our oaths; and we are to
tell you what is law, not you us. Therefore, sirrah, you are too bold."
_Crook._--"_Sirrah_ is not a word becoming a judge. If I speak loud, it is
my zeal for the truth and for the name of the Lord. Mine innocency makes
me bold." _Foster, C. J._--"It is an evil zeal." _Crook._--"No, I am bold
in the name of the Lord God Almighty, the everlasting Jehovah, to assert
the truth and stand as a witness for it. Let my accuser be brought forth."
_Foster, C. J._--"Sirrah, you are to take the oath, and here we tender it
you." _Crook._--"Let me be cleared of my imprisonment, and then I will
answer to what is charged against me. I keep a conscience void of offence,
both towards God and towards man." _Foster, C. J._--"Sirrah, leave your
canting." _Crook._--"Is this canting, to speak the words of the
Scripture?" _Foster, C. J._--"It is canting in your mouth, though they are
St. Paul's words. Your first denial to take the oath shall be recorded;
and on a second denial, you bear the penalties of a _præmunire_, which is
the forfeiture of all your estate, if you have any, and imprisonment
during life." _Crook._--"I owe dutiful allegiance to the king, but cannot
_swear_ without breaking my allegiance to the King of Kings. We dare not
break Christ's commandments, who hath said, _Swear not at all_; and the
apostle James says, 'Above all things, my brethren, _swear not_.'"

Crook, in his account of the trial, says, "The chief justice thereupon
interrupting, called upon the executioner to stop my mouth, which he did
accordingly with a dirty cloth and a gag." The other Quakers following
Crook's example, they were all indicted for having a second time refused
to take the oath of allegiance; and being found guilty, the court gave
judgment against them of forfeiture, imprisonment for life, and moreover,
that they were "out of the king's protection;" whereby they carried about
with them _caput lupinum_, (a wolf's head,) and might be put to death by
any one as noxious vermin.

The last trial of importance at which Chief Justice Foster presided was
that of Thomas Tonge and others, charged with a plot to assassinate the
king. General Ludlow says that this was got up by the government to divert
the nation from their ill humor, caused by the sale of Dunkirk;[62] the
invention being, "that divers thousands of ill-affected persons were ready
under his command to seize the Tower and the city of London, then to
march directly to Whitehall, in order to kill the king and Monk, with a
resolution to give no quarter; and after that to declare for a
commonwealth." The case was proved by the evidence of supposed
accomplices, which was held to be sufficient without any corroboration.
The chief justice seems to have been very infirm and exhausted; for thus
he summed up,--

"My masters of the jury, I cannot speak loud to you; you understand this
business, such as I think you have not had the like in your time; my
speech will not give me leave to discourse of it. The witnesses may
satisfy all honest men: it is clear that they all agreed to subvert the
government, and to destroy his majesty. What can you have more. The
prisoners are in themselves inconsiderable; they are only the outboughs;
but if such fellows are not met withal, they are the fittest instruments
to set up a Jack Straw and a Wat Tyler; therefore you must lop them off,
as they will encourage others. I leave the evidence to you; go together."

The prisoners being all found guilty, the chief justice thus passed
sentence upon them,--

"You have committed the greatest crime against God, our king, and your
country, and against every good body that is in this land; for that
capital sin of high treason is a sin inexpiable, and, indeed, hath no
equal sin as to this world. Meddling with them that are given to change
hath brought too much mischief already to this nation; and if you will
commit the same sin, you must receive the same punishment, for happy is he
who by other men's harms takes heed."

They were all executed, protesting their innocence.

The chief justice went a circuit after this trial, in the hope that
country air would revive him. However, he became weaker and weaker, and,
although much assisted by his brother judge, he with great difficulty got
to the last assize town. From thence he travelled by slow stages to his
house in London, where, after languishing for a few weeks, he expired,
full of days, and little blamed for any part of his conduct as a judge,
however reprehensible it may appear to us, trying it by a standard which
he would have thought only fit to be proposed by rebels.




CHAPTER X.

ROBERT HYDE.


On the death of Sir Robert Foster, Lord Clarendon thought that he might
fairly do a job for an aged kinsman, of respectable, if not brilliant
reputation; and he appointed Sir Robert Hyde chief justice of the King's
Bench. They were cousins-german, being grandsons of Lawrence Hyde, of West
Hatch, in the county of Wilts, and nephews of Sir Nicholas Hyde, chief
justice of the King's Bench in the commencement of the reign of Charles I.
The Hydes were the most distinguished race of the robe in the 17th
century. Robert's father was likewise a lawyer of renown, being attorney
general to Anne of Denmark, queen of James I., and he had twelve sons,
most of whom followed their father's profession. Robert seems to have been
a very quiet man, and to have got on by family interest and by plodding.
Although Edward, the future chancellor, played such a distinguished part
during the troubles,--first as a moderate patriot, and then as a liberal
conservative,--Robert, the future chief justice, was not in the House of
Commons, nor did he enlist under the banner of either party in the field.
Just before the civil war broke out, he was called to the degree of
serjeant at law, and he continued obscurely to carry on his profession
during all the vicissitudes of the twenty eventful years between 1640 and
1660.

At the Restoration, he was made a puisne judge of the Common Pleas, and,
acting under Chief Justice Bridgman, he acquitted himself creditably.

When he was installed chief justice of the King's Bench, Lord Chancellor
Clarendon himself attended in court, and thus addressed him:--

"It's a sign the troubles have been long, that there are so few judges
left, only yourself; and after so long suffering of the law and lawyers,
the king thought fit to call men of the best reputation and learning, to
renew the reverence due and used to the law and lawyers; and the king, as
soon as the late chief justice was dead, full of days and of honors, did
resolve on you as the ancientest judge left; and your education in this
court gives you advantage here above others, as you are the son of an
eminent lawyer as any in his days, whose felicity was to see twelve sons,
and you one of the youngest a serjeant, and who left you enough, able to
live without the help of an elder brother. For your integrity to the
crown, you come to sit here. The king and the kingdom do expect great
reformation from your activity. For this reason, the king, when I told him
Chief Justice Foster was dead, made choice of you. Courage in a judge is
necessary as in a general;[63] therefore you must not want this to punish
sturdy offenders. The genteel wickedness of duelling I beseech you inquire
into; the carriers of challenges, and fighters, however they escape death,
the fining and imprisoning of them will make them more dread this court
than the day of judgment."

_Hyde, C. J._--"I had ever thought of the advice of the wise man, 'not to
seek to be a judge, nor ask to sit in the seat of honor,' being conscious
of my own defects and small learning. But, seeing his majesty's grace, I
shall humbly submit, and serve him with my life, with all alacrity and
duty. Sins of infirmity I hope his majesty will pardon, and for wilful and
corrupt dealings I shall not ask it. I attended in Coke's time as a
reporter here; and as he said when he was made chief justice I say now--'I
will behave myself with all diligence and honesty.'"

This chief justice was much celebrated in his day for checking the
licentiousness of the press. A printer named John Twyn, having printed a
book containing passages which were said to reflect upon the king, was
arraigned before him at the Old Bailey on an indictment for high treason.
The prisoner being asked how he would be tried, said, "I desire to be
tried in the presence of that God who is the searcher of all hearts, and
the disposer of all things."

_Hyde, L. C. J._--"God Almighty is present here, but you must be tried by
him and your peers, that is, your country, or twelve honest men."
_Prisoner._--"I desire to be tried by God alone." _Hyde, L. C. J._--"God
Almighty looks down, and beholds what we do here, and we shall answer
severely if we do you any wrong. We are careful of our souls as you can be
of yours. You must answer in the words of the law." _Prisoner._--"By God
and my country."

It was proved clearly enough that he had printed the book, and some
passages of it might have been considered libellous; but there was no
other evidence against him, and he averred that he had unconsciously
printed the book in the way of his trade.

_Hyde, L. C. J._--"There is here as much villany and slander as it is
possible for devil or man to invent. To rob the king of the love of his
subjects, is to destroy him in his person. You are here in the presence of
Almighty God, as you desired; and the best you can now do towards amends
for your wickedness is by discovering the author of this villanous book.
If not, you must not expect--and, indeed, God forbid--there should be any
mercy shown you." _Prisoner._--"I never knew the author of it." _Hyde, L.
C. J._--"Then we must not trouble ourselves. You of the jury, there can be
no doubt that publishing such a book as this is as high treason as can be
committed, and my brothers will declare the same if you doubt."

The jury having found a verdict of guilty,[64] the usual sentence was
pronounced by Lord Chief Justice Hyde, and the printer was drawn, hanged,
and quartered accordingly.

The next trials before his lordship, although the charge was not made
capital, (as he said it might have been,) were equally discreditable to
him. Several booksellers were indicted for publishing a book which
contained a simple and true account of the trial of the regicides, with
their speeches and prayers.

_Hyde, L. C. J._--"To publish such a book is to fill all the king's
subjects with the justification of that horrid murder. I will be bold to
say no such horrid villany has been done upon the face of the earth since
the crucifying of our Savior. To print and publish this is sedition. He
that prints a libel against me as Sir Robert Hyde, and he that sets him at
work, must answer it; much more when against the king and the state.
_Dying men's words_, indeed. If men are as villanous at their death as in
their lives, may what they say be published as the words of dying men? God
forbid! It is the king's great mercy that the charge is not for high
treason."

The defendants, being found guilty, were sentenced to be fined, to stand
several hours in the pillory, and to be imprisoned for life.

[In October, 1664, Chief Justice Hyde caused John Keach to be indicted for
libel, which indictment he proceeded forthwith to try, in a manner
denounced by Mr. Dunning, in one of his speeches in the House of Commons
(Dec. 6, 1770,) as "cruel, brutal, and illegal."

Keach had written a little book called The Child's Instructor; or a new
and easy Primer, in which were contained several things contrary to the
doctrine and ceremonies of the Church of England. Keach taught that
infants ought not to be baptized; that laymen may preach the gospel; that
Christ shall reign personally on the earth in the latter day, &c. He had
no sooner received a few copies from London, where the book was printed,
than a justice of the peace, who had heard of it, entered his house with a
constable, seized several of the books, and bound Keach over to answer for
it at the next assizes at Aylsbury.

Chief Justice Hyde presiding, Keach was called to the bar, when the
following dialogue ensued:--

_Hyde._--Did you write this book? (Holding out one of the primers.)[65]

_Keach._--I writ most of it.

_Hyde._--What have you to do to take other men's trades out of their
hands? I believe you can preach as well as write books. Thus it is to let
you and such as you are have the Scripture to wrest to your own
destruction. You have made in your book a new creed. I have seen three
creeds before, but I never saw a fourth till you made one.

_Keach._--I have not made a creed, but a confession of the Christian
faith.

_Hyde._--Well, that is a creed, then.

_Keach._--Your lordship said you had never seen but three creeds, but
thousands of Christians have made a confession of their faith.

The chief justice having denounced several things contained in the book as
contrary to the liturgy of the church of England, and so a breach of the
test of uniformity--

_Keach._--My lord, as to those things--

_Hyde._--You shall not preach here, nor give the reasons of your damnable
doctrine, to seduce and infect his majesty's subjects. These are not
things for such as you to meddle with, and to pretend to write books of
divinity; but I will try you for it before I sleep.

He then directed an indictment to be drawn up, and thus addressed the
grand jury:--

"Gentlemen of the grand jury: I shall send you presently a bill against
one that hath taken upon him to write a new primer for the instruction of
your children. He is a base and dangerous fellow; and if this be suffered,
children by learning of it will become such as he is; and therefore I hope
you will do your duty."

A long indictment having been found, in which divers passages from the
book were set forth as damnable, seditious, wicked, and contrary to the
statute in that case made and provided, Keach was called upon to plead to
it. He asked for a copy, and liberty to confer with counsel, and to put in
his exceptions before pleading. But Chief Justice Hyde compelled him to
plead before he would give him a copy, and then would allow him only an
hour's time to consider it, which, as not long enough to be of any
benefit, Keach declined to accept.

The evidence was, that thirty copies of the book had been seized at
Keach's house by the justice and constable, and that Keach on his
examination before the justice had confessed himself the author, and that
he had received from London about forty copies, of which he had dispersed
about twelve. Hyde then caused the passages contained in the indictment to
be read, remarking on each to show that it was contrary to the Book of
Common Prayer. This done, the prisoner began to speak in his defence.

_Keach._--As to the doctrines--

_Hyde._--You shall not speak here except to the matter of fact; that is to
say, whether you writ this book or not.[66]

_Keach._--I desire liberty to speak to the particulars of my indictment,
and those things that have--

_Hyde._--You shall not be suffered to give the reasons for your damnable
doctrine here to seduce the king's subjects.

_Keach._--Is my religion so bad that I may not be allowed to speak?

_Hyde._--I know your religion; you are a Fifth Monarchy man; and you can
preach as well as write books; and you would preach here if I would let
you; but I shall take such order as you shall do no more mischief.[67]

After some altercation between the judge and the prisoner as to the facts
and the evidence, Hyde summed up and charged the jury; but after an
absence of several hours one of the officers came in with a message that
they could not agree.

_Hyde._--But they must agree.

_Officer._--They desire to know whether one of them may not come and speak
to your lordship about something whereof they are in doubt.

_Hyde._--Yes, privately; (and then ordered one to come to him on the
bench.)

The officer then called one, and he was set upon the clerk's table, and
the judge and he whispered together a great while. It was observed that
the judge, having his hands upon his shoulders, would frequently shake him
as he spoke to him. Upon this person's returning, the whole jury soon came
in, and by their foreman delivered a verdict of guilty in part.

_Clerk._--Of what part?

_Foreman._--There is something contained in the indictment which is not in
the book.

_Clerk._--What is that?

_Foreman._--In the indictment he is charged with these words: "When the
thousand years shall be expired, then shall all the rest of the church be
raised;" but in the book it is, "Then shall the rest of the dead be
raised."

_Clerk._--Is he guilty of all the rest of the indictment, that sentence
excepted?

_One of the Jury._--I cannot in conscience find him guilty, because the
words in the indictment and the book do not agree.

_Hyde._--That is only through a mistake of the clerk's, and in that
sentence only; and you may find him guilty of all, that sentence excepted;
but why did you come in before you were agreed?

_Foreman._--We thought we had been agreed.

_Hyde._--You must go out again and agree; and as for you that say you
cannot in conscience find him guilty, if you say so again, without giving
reasons for it, I _shall take an order with you_.[68]

We shall find an explanation of this last threat (which soon produced a
verdict in accordance with the wishes of the chief justice) in Hale's
Pleas of the Crown,[69] where it is stated that while Hyde was acting as a
judge of _nisi prius_, he introduced the illegal practice of fining juries
for not rendering verdicts satisfactory to him. "I have seen," says Hale,
"arbitrary practice still go from one thing to another. The fines set upon
grand inquests began; then they set fines upon the petit jurors for not
finding according to the direction of the court; then afterwards the
judges of _nisi prius_ proceeded to fine jurors in civil causes if they
gave not a verdict according to direction, even in points of fact. This
was done by a judge of assize [Justice Hyde, at Oxford, Vaugh. 145] in
Oxfordshire, and the fine estreated; but I, by advice of most of the
judges of England, stayed process upon that fine. [Hale was at this time
chief baron of the Court of Exchequer.] The like was done by the same
judge in a case of burglary. The fine was estreated into the exchequer;
but by the like advice I stayed process; and in the case of Wagstaff,
[Vaugh. 153,] and other jurors fined at the Old Bayley for giving a
verdict contrary to direction, by advice of all the judges of England,
(only one dissenting,) it was ruled to be against law."][70]

In the fervor of loyalty which still prevailed, such doctrines were by no
means unpopular; and while Chief Justice Hyde was cried up as an eminent
judge by the triumphant Cavaliers, the dejected Roundheads hardly ventured
to whisper a complaint against him. To the great grief of the one party,
and, no doubt, to the secret joy of the other, who interpreted his fate as
a judgment, his career was suddenly cut short. On the 1st of May, 1665, as
he was placing himself on the bench to try a dissenter who had published a
book recommending the "comprehension," that had been promised by the
King's Declaration from Breda, while apparently in the enjoyment of
perfect health, he dropped down dead.




CHAPTER XI.

JOHN KELYNGE.


After the sudden death of Sir Robert Hyde, Lord Chancellor Clarendon was
again thrown into distress by the difficulty of filling up the office of
chief justice of the King's Bench, and he allowed it to remain vacant
seven months. Only five years had elapsed since the Restoration, and no
loyal lawyer of eminence had sprung up. At last the Chancellor thought he
could not do better than promote Sir John Kelynge, then a _puisne_, to be
the head of the court. The appointment was considered a very bad one; and
some accounted for it by supposing that a liberal contribution had been
made towards the expense of erecting "Dunkirk House,"[71] which was
exciting the admiration and envy of the town; while others asserted that
the collar of S. S.[72] had been put around the neck of the new legal
dignitary by the Duchess of Cleveland. I believe that judicial patronage
had not yet been drawn into the vortex of venality, and that Clarendon,
left to the freedom of his own will, preferred him whom he considered the
least ineligible candidate. But we cannot wonder at the suspicions which
were generally entertained, for Sir John Kelynge's friends could only say
in his favor that he was a "violent Cavalier," and his enemies observed
that "however fit he might have been to _charge_ the Roundheads under
Prince Rupert, he was very unfit to _charge_ a jury in Westminster Hall."

I can find nothing of his origin, or of his career, prior to the
Restoration; and I am unable to say whether, like some loyal lawyers, he
actually had carried arms for the king, or, like others, had continued
obscurely to practise his profession in London. The first notice I find of
him is by himself, in the account which he has left us of the conferences
of the judges at Serjeants' Inn, preparatory to the trial of the
regicides, when he says he attended that service as junior counsel for the
crown. He might have been employed from a notion that he would be useful
in solving the knotty points likely to arise,[73] or, (what is quite as
likely,) without any professional reputation, he might have got a brief by
favor, in a case which was to draw the eyes of the whole world upon all
engaged in it.

When the trials came on, he was very busy and bustling, and eagerly
improved every opportunity of bringing himself forward. Before they were
over, he took upon himself the degree of serjeant at law, and, to his
unspeakable delight, he was actually intrusted with the task of conducting
the prosecution against Colonel Hacker, who had commanded the guard
during the king's trial and at his execution. He learnedly expounded to
the jury that the treason consisted in "compassing and imagining the
king's death," and that the overt acts charged of _condemning him_ and
_executing him_ were only to be considered evidence of the evil intention.
He then stated the facts which would be proved by the witnesses, and
concluded by observing,--

"Thus did he keep the king a prisoner, to bring him before that Mock Court
of Injustice; and was so highly trusted by all those miscreants who
thirsted for the king's blood, that the bloody warrant was directed to him
to see execution done. Nay, gentlemen, he was on the scaffold, and had the
axe in his hand." _Hacker._--"My lords, to save your lordships trouble, I
confess that I was upon the guard, and had a warrant to keep the king for
his execution." (The original warrant being shown to him, he admitted it.)
_Kelynge._--"After you had that warrant brought to you, did you, by virtue
of it, direct another warrant for the execution of the king, and take his
sacred majesty's person from the custody of Colonel Tomlinson?"
_Hacker._--"No, sir." _Kelynge._--"We shall prove it."

Colonel Tomlinson was then examined, and detailed the circumstances of the
execution, showing that Colonel Hacker had conducted the king to the
scaffold under the original warrant--what had been taken for a fresh
warrant being a letter written by him to Cromwell, then engaged in prayer
for the king's deliverance with General Fairfax.

_Kelynge._--"We have other witnesses, but the prisoner hath confessed
enough. We have proved that he had the king in custody, and that at the
time of the execution he was there to manage it. What do you say for
yourself?" _Hacker._--"Truly, my lord, I have no more to say for myself
but that I was a soldier and under command. In obedience to those set over
me I did act. My desire hath ever been for the welfare of my country." _L.
C. Baron._--"This is all you have to say for yourself?" _Hacker._--"Yes,
my lord." _L. C. Baron._--"Then, Colonel Hacker, for that which you say
for yourself that you did it by command, you must understand that no power
on earth could authorize such a thing. Either he is guilty of compassing
the death of the king, or no man can be said to be guilty."

Of course he was convicted and executed.

Serjeant Kelynge was soon after promoted to be a king's serjeant; and in
that capacity took a prominent part in the trial of Sir Henry Vane, who,
not being concerned in the late king's death, was tried for what he had
subsequently done in obedience to the Parliament, then possessed of the
supreme power of the state. To the plea that his acts could not be said to
be against the peace of Charles II., who was then in exile, Kelynge
admitted that if another sovereign, although a usurper, had mounted the
throne, the defence would have been sufficient; but urged that the throne
must always be full, and that Charles II., in legal contemplation,
occupied it while _de facto_ he was wandering in foreign lands, and
ambassadors from all the states of Europe were accredited to Oliver, the
Lord Protector.

Kelynge having suggested this reasoning, which was adopted by the court,
and on which Vane was executed as a traitor, he was, on the next vacancy,
made a puisne judge of the King's Bench.

While Kelynge was a puisne judge, he made up, by loyal zeal and
subserviency, for his want of learning and sound sense; but, from a
knowledge of his incompetency, there was a great reluctance to promote him
on the death of Lord Chief Justice Hyde. Sir Matthew Hale was pointed out
as the fittest person to be placed at the head of the common law; but Lord
Clarendon had not the liberality to raise to the highest dignity one who
had sworn allegiance to the Protector, and there being no better man whom
he could select, who was free from the suspicion of republican taint, he
fixed upon the "violent Cavalier."

Luckily there were no speeches at his installation. On account of the
dreadful plague which was then depopulating London, the courts were
adjourned to Oxford. "There Kelynge, puisne judge, was made chief justice,
and being sworn at the chancellor's lodging, came up privily and took his
place in the logic school, where the Court of King's Bench sat. The
business was only motions--to prevent any concourse of people. In London
died the week before, 7165 of the plague, besides Papists and Quakers."

The new chief justice even exceeded public expectation by the violent,
fantastical, and ludicrous manner in which he comported himself. His
vicious and foolish propensities broke out without any restraint, and, at
a time when there was little disposition to question any who were clothed
with authority, he drew down upon himself the contempt of the public and
the censure of Parliament.

He was unspeakably proud of the collar which he wore as chief justice,
this alone distinguishing him externally from the puisnies, a class on
whom he now looked down very haughtily. In his own report of the
resolutions of the judges prior to the trial of Lord Morley for murder,
before the House of Lords, he considers the following as most
important,--

"We did all, _una voce_, resolve that we were to attend at the trial in
our scarlet robes, and the chief judges in their collars of S. S.--_which
I did accordingly_."

There having been a tumult in an attempt by some apprentices to put down
certain disorderly houses in Moorfields, which were a great nuisance to
the neighborhood, and cries that no such houses should be tolerated, Chief
Justice Kelynge, considering this "an _accroachment_ of royal authority,"
directed those concerned in it to be indicted for HIGH TREASON; and the
trial coming on before him at the Old Bailey, he thus laid down the law to
the jury,--

"The prisoners are indicted for levying war against the king. By levying
war is not only meant when a body is gathered together as in army, but if
a company of people will go about any public reformation, this is high
treason. These people do pretend their design was against brothels; now,
for men to go about to pull down brothels, with a captain, and an ensign,
and weapons,--if this thing be endured, _who is safe_? It is high treason
because it doth betray the peace of the nation, and every subject is as
much wronged as the king; for if every man may reform what he will, no man
is safe; therefore the thing is of desperate consequence, and we must make
this for a public example. There is reason we should be very cautious; we
are but newly delivered from rebellion, and we know that that rebellion
first began under the pretence of religion and the law; for the devil hath
always this vizard upon it. We have great reason to be very wary that we
fall not again into the same error. Apprentices in future shall not go on
in this manner. It is proved that Beasely went as their captain with his
sword, and flourished it over his head, and that Messenger walked about
Moorfields with a green apron on the top of a pole. What was done by one
was done by all; in high treason, all concerned are principals."

So the prisoners were all convicted of high treason; and I am ashamed to
say that all the judges concurred in the propriety of the conviction
except Lord Chief Baron Hale, who, as might be expected, delivered his
opinion that there was no treason in the case, and treated it merely as a
misdemeanor. Such a proceeding had not the palliation that it ruined a
personal enemy, or crushed a rival party in the state, or brought great
forfeitures into the exchequer; it was a mere fantastic trick played
before high heaven to make the angels weep.[74]

When Chief Justice Kelynge was upon the circuit, being without any check
or restraint, he threw aside all regard to moderation and to decency. He
compelled the grand jury of Somersetshire to find a true bill contrary to
their consciences--reproaching Sir Hugh Wyndham, the foreman, as the head
of a faction, and telling them "that they were all his servants, and that
he would make the best in England stoop."

Some persons were indicted before him for attending a conventicle; and,
although it was proved that they had assembled on the Lord's day with
Bibles in their hands, _without Prayer Books_, they were acquitted. He
thereupon fined the jury one hundred marks apiece, and imprisoned them
till the fines were paid. Again, on the trial of a man for murder, who was
suspected of being a dissenter, and whom he had a great desire to hang, he
fined and imprisoned all the jury because, contrary to his direction,
they brought in a verdict of _manslaughter_.[75] Upon another occasion,
(repeating a coarse jest of one whom he professed to hold in great
abhorrence,) when he was committing a man in a very arbitrary manner, the
famous declaration in Magna Charta being cited to him, that "no freeman
shall be imprisoned except by the judgment of his peers, or the law of the
land," the only answer given by my lord chief justice of England was to
repeat, with a loud voice, Cromwell's rhyme, "Magna Charta--Magna
F----a!!!"

At last, the scandal was so great that complaints against him were brought
by petition before the House of Commons, and were referred to the grand
committee of justice. After witnesses had been examined, and he himself
had been heard in his defence, the committee reported the following
resolutions:--

"1. That the proceedings of the lord chief justice in the cases referred
to us are innovations in the trial of men for their lives and liberties,
and that he hath used an arbitrary and illegal power which is of dangerous
consequence to the lives and liberties of the people of England.

"2. That in the place of judicature, the lord chief justice hath
undervalued, vilified, and condemned Magna Charta, the great preserver of
our lives, freedom, and property.

"3. That the lord chief justice be brought to trial, in order to condign
punishment in such manner as the House shall judge most fit and
requisite."

The matter assuming this serious aspect, he petitioned to be heard at the
bar of the House in his own defence. Lord Chief Baron Atkyns, who was then
present, says, "he did it with that great humility and reverence, that
those of his own profession and others were so far his advocates that the
House desisted from any farther prosecution." His demeanor seems now to
have been as abject as it had before been insolent, and he escaped
punishment only by the generous intercession of lawyers whom he had been
in the habit of browbeating in the King's Bench.

He was abundantly tame for the rest of his days; but he fell into utter
contempt, and the business of the court was done by Twisden, a very
learned judge, and much respected, although very passionate. Kelynge's
collar of S. S. ceased to have any charms for him; he drooped and
languished for some terms, and on the 9th of May, 1671, he expired, to the
great relief of all who had any regard for the due administration of
justice. No interest can be felt respecting the place of his interment,
his marriages, or his descendants.

I ought to mention, among his other vanities, that he had the ambition to
be an author; and he compiled 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.[76]




CHAPTER XII.

WILLIAM SCROGGS.


It was positively asserted in his lifetime, and it has been often repeated
since, that Scroggs was the son of a butcher, and that he was so cruel as
a judge because he had been himself accustomed to kill calves and lambs
when he was a boy. Yet it is quite certain that this solution of Scroggs's
taste for blood is a pure fiction, for he was born and bred a gentleman.
His father was a squire, of respectable family and good estate, in
Oxfordshire. Young Scroggs was several years at a grammar school, and he
took a degree with some credit in the University of Oxford, having studied
first at Oriel, and then at Pembroke College. He was intended for the
church, and, in quiet times, might have died respected as a painstaking
curate, or as Archbishop of Canterbury. But, the civil war breaking out
while he was still under age, he enlisted in the king's cause, and
afterwards commanded a troop of horse, which did good service in several
severe skirmishes. Unfortunately, his morals did not escape the taint
which distinguished both men and officers on the Cavalier side. The
dissolute habits he had contracted unfitted him entirely for the
ecclesiastical profession, and he was advised to try his luck in the law.
He had a quick conception, a bold manner, and an enterprising mind; and
prophecies were uttered of his great success if he should exchange the
cuirass for the long robe. He was entered as a student at Gray's Inn, and
he showed that he was capable, by short fits, of keen application; but
his love of profligacy and of expense still continued, and both his health
and his finances suffered accordingly.

However, he contrived to be called to the bar; and some of his pot
companions being attorneys, they occasionally employed him in causes
likely to be won by a loud voice and an unscrupulous appeal to the
prejudices of the jury. He practised in the King's Bench, where, although
he now and then made a splashy speech, his business by no means increased
in the same ratio as his debts. "He was," says Roger North, "a great
voluptuary, his debaucheries egregious, and his life loose; which made the
Lord Chief Justice Hale detest him." Thinking that he might have a better
chance in the Court of Common Pleas, where the men in business were very
old and dull, he took the degree of the coif, and he was soon after made a
King's Serjeant. Still, however, he kept company with Ken, Guy, and the
high-court rakes, and his clients could not depend upon him. His visage
being comely, and his speech witty and bold, he was a favorite with
juries, and sometimes carried off wonderful verdicts; but, when he ought
to have been consulting his chamber in Serjeants' Inn, he was in a tavern
or gaming house, or worse place, near St. James's Palace. Thus his gains
were unsteady, and the fees which he received were speedily spent in
dissipation, so that he fell into a state of great pecuniary
embarrassment. On one occasion, he was arrested by a creditor in
Westminster Hall as he was about to enter his coach. The process being out
of the King's Bench, he complained to that court of a breach of his
privileges as a serjeant; but Lord Chief Justice Hale refused to discharge
him.

Meanwhile, Serjeant Scroggs was in high favor with Lord Shaftesbury's
enemies, who, on the commitment of that turbulent leader to the Tower for
breach of privilege, had gained a temporary advantage over him. Through
the agency of Chiffinch, superintendent of the secret intrigues of every
description which were carried on at Whitehall,[77] he had been introduced
to Charles II., and the merry monarch took pleasure in his licentious
conversation. What was of more importance to his advancement, he was
recommended to the Earl of Danby, the reigning prime minister, as a man
that might be useful to the government if he were made a judge. In
consequence, on the 23d of October, 1676, he was knighted, and sworn in a
justice of the Court of Common Pleas. Sir Allan Broderick, in a letter to
"the Honorable Lawrence Hyde," written a few days after, says, "Sir
William Scroggs, on Monday, being admitted judge, made so excellent a
speech that my Lord Northampton, then present, went from Westminster to
Whitehall immediately, and told the king he had, since his happy
restoration, caused many hundred sermons to be printed, and which together
taught not the people half so much loyalty; therefore, as a sermon,
desired his command to have it printed and published in all the market
towns in England."

Mr. Justice Scroggs gave himself little trouble with law business that
came before the court; but, in addressing grand juries on the circuit, he
was loud and eloquent against the proceedings of the "country party," and
he still continued to be frequently in the circle at Whitehall, where he
took opportunities not only to celebrate his own zeal, but to sneer at
Sir John Raynsford, the chief justice of the King's Bench, whose place he
was desirous to fill. Chiffinch, and his other patrons of the back-stairs,
were in the habit of sounding his praise, and asserting that he was the
only man who, as head of the King's Bench, could effectually cope with the
manoeuvres of Shaftesbury. This unconquerable intriguer, having been
discharged from custody, was again plotting against the government, was
preparing to set up the legitimacy of Monmouth, and was asserting that the
Duke of York should be set aside from the succession of the throne and
prosecuted as a Popish recusant.

The immediate cause of Raynsford's removal was the desire of the
government to have a chief justice of the King's Bench on whose vigor and
subserviency reliance could be placed, to counteract the apprehended
machinations of Shaftesbury.

On the 31st of May, 1678, Sir William Scroggs was sworn into the office,
and he remained in it for a period of three years. How he conducted
himself in civil suits is never once mentioned, for the attention of
mankind was entirely absorbed by his scandalous misbehavior as a criminal
judge. He is looked to with more loathing, if not with more indignation,
than Jeffreys, for in his abominable cruelties he was the sordid tool of
others, and in his subsequent career he had not the feeble excuse of
gratifying his own passions or advancing his own interests.

Although quite indifferent with regard to religion, and ready to have
declared himself a Papist, or a Puritan, or a Mahometan, according to the
prompting of his superiors, finding that the policy of the government was
to outbid Shaftesbury in zeal for Protestantism, he professed an implicit
belief in all the wonders revealed by Titus Oates, in the murder of Sir
Edmondbury Godfrey by Papists, and in the absolute necessity for cutting
off without pity all those who were engaged in the nefarious design to
assassinate the king, to burn London, and to extinguish the flames with
the blood of Protestants. He thought himself to be in the singularly
felicitous situation of pleasing the government while he received shouts
of applause from the mob. Burnet, speaking of his appointment, says, "It
was a melancholy thing to see so bad, so ignorant, and so poor a man
raised up to that great post. Yet he, now seeing how the stream ran, went
into it with so much zeal and heartiness that he was become the favorite
of the people."[78]

The first of the Popish plot judicial murders--which are more disgraceful
to England than the massacre of St. Bartholomew's is to France--was that
of Stayly, the Roman Catholic banker. Being tried at the bar of the Court
of King's Bench, Scroggs, according to the old fashion, which had gone out
during the Commonwealth, repeatedly put questions to the prisoner,
attempting to intimidate him, or to involve him in contradictions, or to
elicit from him some indiscreet admission of facts. A witness having
stated that "he had often heard the prisoner say he would lose his blood
for the king, and speak as loyally as man could speak," Scroggs exclaimed,
"_That is, when he spoke to a Protestant!_" In summing up, having run
himself out of breath by the violence with which he declaimed against the
Pope and the Jesuits, he thus apologised to the jury:--

"Excuse me, gentlemen, if I am a little warm, when perils are so many,
murders so secret. When things are transacted so closely, and our king is
in great danger, and religion is at stake, I may be excused for being a
little warm. You may think it better, gentlemen, to be warm here than in
Smithfield. Discharge your consciences as you ought to do. If guilty, let
the prisoner take the reward of his crime, for perchance it may be a
terror to the rest. I hope I shall never go to that heaven where men are
made saints for killing kings."

The verdict of _guilty_ being recorded, _Scroggs, C. J._, said, "Now, you
may die a Roman Catholic; and, when you come to die, I doubt you will be
found a priest too. The matter, manner, and all the circumstances of the
case, make it plain; you may harden your heart as much as you will, and
lift up your eyes, but you seem, instead of being sorrowful, to be
obstinate. Between God and your conscience be it; I have nothing to do
with that; my duty is only to pronounce judgment upon you according to
law--you shall be drawn to the place of execution, where you shall be
hanged by the neck, cut down alive," &c. &c.

The unhappy convict's friends were allowed to give him decent burial;[79]
but, because they said a mass for his soul, his body was, by order of Lord
Chief Justice Scroggs, taken out of the grave, his quarters were fixed
upon the gates of the city, and his head, at the top of a pole, was set on
London Bridge. So proud was Scroggs of this exploit, that he had an
account of it written, for which he granted an IMPRIMATUR, signed with his
own name.

I must not run the risk of disgusting my readers by a detailed account of
Scroggs's enormities on the trials of Coleman, Ireland, Whitebeard,
Langhord, and the other victims whom he sacrificed to the popular fury
under pretence that they were implicated in the Popish plot. Whether
sitting in his own court at Westminster, or at the Old Bailey in the city
of London, as long as he believed that government favored the
prosecutions, by a display of all the unworthy arts of cajoling and
intimidation he secured convictions. A modern historian, himself a Roman
Catholic priest, says, with temper and discrimination, "The Chief Justice
Scroggs, a lawyer of profligate habits and inferior acquirements, acted
the part of prosecutor rather than of judge. To the informers he behaved
with kindness, even with deference, suggesting to them explanations,
excusing their contradictions, and repelling the imputation on their
characters; but the prisoners were repeatedly interrupted and insulted;
their witnesses were browbeaten from the bench, and their condemnation was
generally hailed with acclamations, which the court rather encouraged than
repressed."

Meanwhile the chief justice went the circuit; and although the Popish plot
did not extend into the provinces, it may be curious to see how he
demeaned himself there. Andrew Bromwich being tried before him capitally,
for having administered the sacrament of the Lord's supper according to
the rites of the church of Rome, thus the dialogue between them
proceeded:--

_Prisoner._--"I desire your lordship will take notice of one thing, that I
have taken the oaths of allegiance and supremacy, and have not refused any
thing which might testify my loyalty." _Scroggs, C. J._--"That will not
serve your turn; you priests have many tricks. What is that to giving a
woman the sacrament several times?" _Prisoner._--"My lord, it was no
sacrament unless I be a priest, of which there is no proof."
_Scroggs._--"What! you expect we should prove you a priest by witnesses
who saw you ordained? We know too much of your religion; no one gives the
sacrament in a wafer, except he be a Popish priest: you gave that woman
the sacrament in a wafer: _ergo_, you are a Popish priest." Thus he summed
up: "Gentlemen of the jury, I leave it upon your consciences whether you
will let priests escape, who are the very pests of church and state; you
had better be rid of one priest than three felons; so, gentlemen, I leave
it to you."

After a verdict of guilty, the chief justice said, "Gentlemen, you have
found a good verdict, and if I had been one of you I should have found the
same myself." He then pronounced sentence of death, describing what seemed
to be his own notion of the divine Being, while he imputed this blasphemy
to the prisoner: "You act as if God Almighty were some omnipotent
mischief, that delighted and would be served with the sacrifice of human
blood."

Scroggs was more and more eager, and "ranted on that side more
impetuously," when he observed that Lord Shaftesbury, who, although
himself too shrewd to believe in the Popish plot, had been working it
furiously for his own purposes, was taken into office on the formation of
Sir William Temple's new scheme of administration, and was actually made
president of the council. But he began to entertain a suspicion that the
king had been acting a part against his inclination and his judgment, and,
having ascertained the real truth upon this point, he showed himself
equally versatile and violent by suddenly going over to the opposite
faction. Roger North gives the following racy account of his conversion:--

"It fell out that when the Earl of Shaftesbury had sat some short time in
the council, and seemed to rule the roast, yet Scroggs had some qualms in
his political conscience; and coming from Windsor in the Lord Chief
Justice North's coach, he took the opportunity and desired his lordship to
tell him seriously if my Lord Shaftesbury had really so great power with
the king as he was thought to have. His lordship answered quick, 'No, my
lord, no more than your footman hath with you.' Upon that the other hung
his head, and, considering the matter, said nothing for a good while, and
then passed to other discourse. After that time he turned as fierce
against Oates and his plot as ever before he had ranted for it."

The first Popish plot case which came on after this conversion was the
trial of Sir George Wakeman, the queen's physician, against whom Oates and
Bedloe swore as stoutly as ever; making out a case which implicated, to a
certain degree, the queen herself. But Chief Justice Scroggs now sneered
at the marvellous memory or imagination of Oates; and, taking very little
notice, in his summing up, of the evidence of Bedloe, thus concluded:--

"If you are unsatisfied upon these things put together, and, well
weighing, you think the witnesses have not said true, you will do well to
acquit." _Bedloe._--"My lord, my evidence is not right summed up."
_Scroggs, C. J._--"I know not by what authority this man speaks.
Gentlemen, consider of your verdict."

An acquittal taking place, not only were Oates and Bedloe in a furious
rage, but the mob were greatly disappointed, for their belief in the plot
was still unshaken, and Scroggs, who had been their idol a few hours
ago,[80] was in danger of being torn in pieces by them. Although he
contrived to escape in safety to his house, he was assailed next morning
by broadsides, ballads sung in the streets, and libels in every imaginable
shape.

On the first day of the following term, he bound over in open court the
authors, printers, and signers of some of the worst of them, and made the
following speech:--

"I would have all men know that I am not so revengeful in my nature, nor
so nettled with this aspersion, that I could not have passed by this and
more; but the many scandalous libels that are abroad, and reflect on
public justice as well as upon my private self, make it the duty of my
place to defend the one, and the duty I owe to my reputation to vindicate
the other. This is the properest occasion for both. If once our courts of
justice come to be awed or swayed by vulgar noise,[81] it is falsely said
that men are tried for their lives or fortunes; they live by chance, and
enjoy what they have as the wind blows, and with the same certainty. Such
a base, fearful compliance made Felix, willing to please the people, leave
Paul bound. The people ought to be pleased with public justice, and not
justice seek to please the people. Justice should flow like a mighty
stream; and if the rabble, like an unruly wind, blow against it, the
stream they made rough will keep its course. I do not think that we yet
live in so corrupt an age that a man may not with safety be just, and
follow his conscience; if it be otherwise, we must hazard our safety to
preserve our integrity. As to Sir George Wakeman's trial, I am neither
afraid nor ashamed to mention it. I will appeal to all sober and
understanding men, and to the long robe more especially, who are the best
and properest judges in such cases, for the fairness and equality of my
carriage on that occasion. For those hireling scribblers who traduce
me,--who write to eat and lie for bread,--I intend to meet with them
another way, for, like vermin, they are only safe while they are secret.
And let those vipers, those printers and booksellers by whom they vend
their false and braided ware, look to it; they shall know that the law
wants not power to punish a libellous and licentious press, nor I
resolution to put the law in force. And this is all the answer fit to be
given (besides a whip) to those hackney writers and dull observators that
go as they are hired or spurred, and perform as they are fed. If there be
any sober and good men that are misled by false reports, or by subtlety
deceived into any misapprehensions concerning that trial or myself; I
should account it the highest pride and the most scornful thing in the
world if I did not endeavor to undeceive them. To such men, therefore, I
do solemnly declare in the seat of justice, where I would no more lie or
equivocate than I would to God at the holy altar, I followed my conscience
according to the best of my understanding in all that trial, without fear,
favor, or reward, _without the gift of one shilling, or the value of it
directly or indirectly, and without any promise or expectation
whatsoever_.[82] Do any think it an even wager, whether I am the greatest
villain in the world or not--one that would sell the life of the king, my
religion, and country, to Papists for money? He that says great places
have great temptations, has a little if not a false heart himself. Let us
pursue the discovery of the plot in God's name, and not balk any thing
where there is suspicion on reasonable grounds; but do not pretend to find
what is not, nor count him a turncoat that will not betray his conscience,
nor believe incredible things. Those are foolish men who think that an
acquittal must be wrong, and that there can be no justice without an
execution."

Many were bound over; but not more than one prosecution was brought to
trial--that against Richard Radley, who was convicted of speaking
scandalous words of the Lord Chief Justice Scroggs, and fined £200.

When the Earl of Castlemaine--the complaisant husband of the king's
mistress--was brought to trial for being concerned in the plot, Scroggs
was eager to get him off, still despising popular clamor. Bedloe being
utterly ruined in reputation, Dangerfield was now marched up, as the
second witness, to support Oates. He had been sixteen times convicted of
infamous offences; and, to render him competent, a pardon under the great
seal was produced. But the chief justice was very severe upon him, saying,
in summing up to the jury, "Whether this man be of a sudden become a saint
because he has become a witness, I leave that to you to consider. Now I
must tell you, though they have produced two witnesses, if you believe but
one, this is insufficient. In treason, there being two witnesses, the one
believed, the other disbelieved, may there be a conviction? I say, no. Let
us deal fairly and aboveboard, and so preserve men who are accused and not
guilty." The defendant being acquitted, the chief justice was again
condemned as a renegade.

He further made himself obnoxious to the charge of having gone over to the
Papists, by his conduct on the trial of Mrs. Elizabeth Cellier, who, if
she had been prosecuted while he believed that the government wished the
plot to be considered real, would unquestionably have been burned alive
for high treason, but now was the object of his especial protection and
favor. The second witness against her was Dangerfield, who, when he was
put into the box, before any evidence had been given to discredit him, was
thus saluted by Chief Justice Scroggs:--

"We will not hoodwink ourselves against such a fellow as this, that is
guilty of such notorious crimes. A man of modesty, after he hath been in
the pillory, would not look a man in the face. Such fellows as you are,
sirrah, shall know we are not afraid of you. It is notorious enough what a
fellow this is. I will shake all such fellows before I have done with
them." _Dangerfield._--"My lord, this is enough to discourage a man from
ever entering into an honest principle." _Scroggs, C. J._--"What! Do you,
with all the mischief that hell hath in you, think to have it in a court
of justice? I wonder at your impudence, that you dare look a court of
justice in the face, after having been made appear so notorious a villain.
Come, gentlemen of the jury, this is a plain case; here is but one witness
in a case of treason; therefore lay your heads together, and say _not
guilty_."

Mrs. Cellier was set at liberty, and Dangerfield was committed to occupy
her cell in Newgate.

When holding assizes in the country, he took every opportunity of
proclaiming his slavish doctrines. Going the Oxford circuit with Lord
Chief Baron Atkyns, he told the grand jury that a petition from the lord
mayor and citizens of London to the king, for calling a Parliament, was
high treason. Atkyns, on the contrary, affirmed "that the people might
petition the king, and, so that it was done without tumult, it was
lawful." Scroggs, having peremptorily denied this, went on to say "that
the king might prevent printing and publishing whatever he chose by
proclamation." Atkyns mildly remarked, "that such matters were fitter for
Parliament, and that, if the king could do this work of Parliament, we
were never like to have Parliaments any more." Scroggs, highly indignant,
sent off a despatch to the king, stating the unconstitutional and
treasonable language of Chief Baron Atkyns. This virtuous judge was in
consequence superseded, and remained in a private station till he was
reinstated in his office after the revolution.

Before Scroggs was himself prosecuted and dismissed from his office with
disgrace, he swelled the number of his delinquencies by an attack on the
liberty of the press, which was more violent than any that had ever been
attempted by the Star Chamber, and which, if it had been acquiesced in,
would have effectually established despotism in this country. Here he was
directly prompted by the government, and it is surprising that this
proceeding should so little have attracted the notice of historians who
have dwelt upon the arbitrary measures of the reign of Charles II. The
object was to put down all free discussions, and all complaints against
misrule, by having, in addition to a licenser, a process of _injunction_
against printing--to be summarily enforced, without the intervention of a
jury, by fine, imprisonment, pillory, and whipping. There was then in
extensive circulation a newspaper called "The Weekly Pacquet of Advice
from Rome, or the History of Papacy," which reflected severely upon the
religion now openly professed by the Duke of York and secretly embraced by
the king himself. In Trinity term, 1680, an application being made to the
Court of King's Bench, on the ground that this newspaper was libellous,
Scroggs, with the assent of his brother judges, granted a rule absolute in
the first instance, forbidding the publication of it in future. The editor
and printer being served with the rule, the journal was suppressed till
the matter was taken up in the House of Commons, and Scroggs was
impeached.

The same term he gave the crowning proof of his servility and contempt of
law and of decency. Shaftesbury, to pave the way for the exclusion bill,
resolved to prosecute the Duke of York as a "Popish recusant." The heir
presumptive to the throne was clearly liable to this proceeding and to all
the penalties, forfeitures, and disqualifications which it threatened, for
he had been educated a Protestant, and, having lately returned from
torturing the Covenanters in Scotland, he was in the habit of
ostentatiously celebrating the rites of the Romish religion in his chapel
in London. An indictment against him was prepared in due form, and this
was laid before the grand jury for the county of Middlesex by Lord
Shaftesbury, along with Lord Russell, Lord Cavendish, Lord Grey de Werke,
and other members of the country party. This alarming news being brought
to Scroggs while sitting on the bench, he instantly ordered the grand jury
to attend in court. The bailiff found them examining the first witness in
support of the indictment; but they obeyed orders. As soon as they had
entered the court, the chief justice said to them, "Gentlemen of the grand
jury, you are discharged, and the country is much obliged to you for your
services."

There were two classes whom he had offended, of very different character
and power--the witnesses in support of the Popish plot, and the
exclusionist leaders. The first began by preferring articles against him
to the king in council, which alleged, among other things, that at the
trial of Sir George Wakeman "he did browbeat and curb Dr. Titus Oates and
Captain Bedloe, two of the principal witnesses for the king, and encourage
the jury impanelled to try the malefactors to disbelieve the said
witnesses, by speaking of them slightingly and abusively, and by omitting
material parts of their evidence; that the said chief justice, to
manifest his slighting opinion of the evidence of the said Dr. Titus Oates
and Captain Bedloe in the presence of his most sacred majesty and the
lords of his majesty's most honorable Privy Council, did dare to say that
Dr. Titus Oates and Captain Bedloe always had an accusation ready against
any body; that the said lord chief justice is very much addicted to
swearing and cursing in his common discourse, and to drink to excess, to
the great disparagement of the dignity and gravity of his office."

It seems surprising that such charges, from such a quarter, against so
high a magistrate, should have been entertained, although he held his
office during the pleasure of the crown. The probability is that, being in
favor with the government, it was considered to be the most dexterous
course to give him the opportunity of being tried before a tribunal by
which he was sure of being acquitted, in the hope that his acquittal would
save him from the fangs of an enraged House of Commons.

He was required to put in an answer to the articles, and a day was
appointed for hearing the case. When it came on, to give great _éclat_ to
the certain triumph of the accused, the king presided in person. Oates and
Bedloe were heard, but they and their witnesses were constantly
interrupted and stopped, on the ground that they were stating what was not
evidence, or what was irrelevant; and, after a very eloquent and witty
speech from the chief justice, in the course of which he caused much
merriment by comments on his supposed immoralities, judgment was given
that the complaints against him were false and frivolous.

But Shaftesbury was not so easily to be diverted from his revenge. On the
meeting of Parliament he caused a motion to be made in the House of
Commons for an inquiry into the conduct of Lord Chief Justice Scroggs in
discharging the Middlesex grand jury and in other matters. A committee was
accordingly appointed, which presented a report recommending that he
should be impeached. The report was adopted by a large majority, and
articles of impeachment were voted against him. These were _eight_ in
number. The _first_ charged in general terms "that the said William
Scroggs, chief justice of the King's Bench, had traitorously and wickedly
endeavored to subvert the fundamental laws and the established religion
and government of the kingdom of England." The _second_ was for illegally
discharging the grand jury, "whereby the course of justice was stopped
maliciously and designedly--the presentments of many Papists and other
offenders were obstructed--and in particular a bill of indictment against
James, Duke of York, which was then before them, was prevented from being
proceeded upon." The _third_ was founded on the illegal order for
suppressing the Weekly Pacquet newspaper. The three following articles
were for granting general warrants, for imposing arbitrary fines, and for
illegally refusing bail. The _seventh_ charged him with defaming and
scandalizing the witnesses who proved the Popish plot. The _last_ was in
these words: "VIII. Whereas the said Sir William Scroggs, being advanced
to be chief justice of the Court of King's Bench, ought, by a sober,
grave, and virtuous conversation, to have given a good example to the
king's liege people, and to demean himself answerably to the dignity of so
eminent a station; yet, on the contrary thereof, he doth, by his frequent
and notorious excesses and debaucheries, and his profane and atheistical
discourses, daily affront Almighty God, dishonor his majesty, give
countenance and encouragement to all manner of vice and wickedness, and
bring the highest scandal on the public justice of the kingdom."

These articles were carried to the House of Peers by Lord Cavendish, who
there, in the name of all the Commons of England, impeached Chief Justice
Scroggs for "high treason, and other high crimes and misdemeanors."

The articles being read, the accused, who was present, sitting on the
judge's woolsack, was ordered to withdraw. A motion was then made, that he
be _committed_; but the previous question was moved and carried, and a
motion for an address to suspend him from his office till his trial should
be over, was got rid of in the same manner. He was then called in, and
ordered to find his bail in £10,000, to answer the articles of
impeachment, and to prepare for his trial.

Luckily for him, at the end of three days the Parliament was abruptly
dissolved. It would have been difficult to make out that any of the
charges amounted to _high treason_; but in those days men were not at all
nice about such distinctions, and a dangerous but convenient doctrine
prevailed, that, upon an impeachment, the two Houses of Parliament might
retrospectively declare any thing to be treason, according to their
discretion, and punish it capitally. At any rate, considering that the
influence of Shaftesbury in the Upper House was so great, and that Halifax
and the respectable anti-exclusionists could not have defended or
palliated the infamous conduct of Scroggs, had his case come to a hearing,
he could not have got off without some very severe and degrading
punishment.

Although he escaped a judicial sentence, his character was so blown upon,
and juries regarded him with such horror, and were so much inclined to go
against his direction, that the government found that he would obstruct
instead of facilitating their designs against the whig leaders, and that
it was necessary to get rid of him. After the dissolution of the Oxford
Parliament the court was completely triumphant, and, being possessed for a
time of absolute power, had only to consider the most expedient means of
perpetuating despotism, and wreaking vengeance on the friends of freedom.
Before long, Russell, Sydney, and Shaftesbury were to be brought to trial,
that their heads might pay the penalty of the Exclusion Bill; but if
Scroggs should be their judge, any jury, whether inclined to Protestantism
or to Popery, would probably acquit them.

Accordingly, in the beginning of April, to make room for one who, it was
hoped, would have more influence with juries, and make the proceedings
meditated against the city of London and other corporations pass off with
less discredit, while he might be equally subservient, Sir William Scroggs
was removed from his office of chief justice of the King's Bench. So low
had he fallen, that little regard was paid to his feelings, even by those
for whom he had sacrificed his character and his peace of mind; and,
instead of a "resignation on account of declining health," it was abruptly
announced to him that a _supersedeas_ had issued, and that Sir FRANCIS
PEMBERTON, who had been a puisne judge under him, was to succeed him as
chief justice.

His disgrace caused general joy in Westminster Hall, and over all England;
for, as Jeffreys had not yet been clothed in ermine, the name of Scroggs
was the by-word to express all that could be considered loathsome and
odious in a judge.

He was allowed a small pension, or retired allowance, which he did not
long enjoy. When cashiered, finding no sympathy from his own profession,
or from any class of the community, he retired to a country house which he
had purchased, called Wealde Hall, near Brentwood, in Essex. Even here,
his evil fame caused him to be shunned. He was considered by the gentry to
be without religion and without honor; while the peasantry, who had heard
some vague rumors of his having put people to death, believed that he was
a murderer, whispered stories of his having dealings with evil spirits,
and took special care never to run the risk of meeting him after dark. His
constitution was undermined by his dissolute habits; and, in old age, he
was still a solitary selfish bachelor. After languishing, in great misery,
till the 25th day of October, 1683, he then expired, without a relation or
friend to close his eyes. He was buried in the parish church of South
Wealde; the undertaker, the sexton, and the parson of the parish, alone
attending the funeral. He left no descendants; and he must either have
been the last of his race, or his collateral relations, ashamed of their
connection with him, had changed their name; for, since his death, there
has been no Scroggs in Great Britain or Ireland. The word was long used by
nurses to frighten children; and as long as our history is studied, or our
language is spoken or read, it will call up the image of a base and
bloody-minded villain. With honorable principles, and steady application,
he might have been respected in his lifetime, and left an historical
reputation behind him. "He was a person of very excellent and nimble
parts," and he could both speak and write our language better than any
lawyer of the seventeenth century, Francis Bacon alone excepted. He seems
to have been little aware of the light in which his judicial conduct would
be viewed; for it is a curious fact that the published reports of the
State Trials at which he presided were all revised and retouched by
himself; and his speeches, which fill us with amazement and horror, he
expected would be regarded as proofs of his spirit and his genius. He had
excellent natural abilities, and might have made a great figure in his
profession; but was profligate in his habits, brutal in his manners, with
only one rule to guide him--a regard to what he considered his own
interest--without a touch of humanity, wholly impenetrable to remorse.




CHAPTER XIII.

FRANCIS NORTH.


We now come to one of the most contemptible of men--Francis North, known
by the title of Lord Keeper Guilford. He had not courage to commit great
crimes; but--selfish, cunning, sneaking, and unprincipled--his only
restraint was a regard to his own personal safety, and throughout his
whole life he sought and obtained advancement by the meanest arts.

Our hero, although he himself ascribed his success to his poverty, was of
noble birth. The founder of his family was Edward North, a serjeant at
law, chancellor of the Augmentations, and created a baron by writ in the
reign of Henry VIII. Dudley, the third baron, "having consumed the
greatest part of his estate in the gallantries of King James's court, or,
rather, his son Prince Henry's," retired and spent the rest of his days at
his seat in Cambridgeshire. When the civil war broke out, he sided with
the Parliament, and on rare occasions coming to London, he is said to have
sat on the trial of Laud, and to have voted for his death. Having reached
extreme old age, he died in the year 1666.

Dudley, his heir, who, at the age of sixty-three, stood on the steps of
the throne in the House of Lords as "the eldest son of a peer," was a
great traveller in his youth, and served with distinction in the Low
Countries under Sir Francis Vere. Yet he never would put on his hat, nor
sit down in the presence of his father, unless by the old peer's express
commands. Being returned to the Long Parliament for the county of
Cambridge, he strenuously opposed the Court, and signed the Solemn League
and Covenant; but, adhering to the Presbyterian party, he was turned out
by _Pride's purge_, and lived in retirement till the Restoration. He
married Anne, one of the daughters and coheirs of Sir Charles Montagu,
brother of the Earl of Manchester, by whom he had a very numerous family.

The subject of this memoir was their second son, and was born on the 22d
of October, 1637. Though he turned out such a zealous royalist and high
churchman, his early training began among republicans and fanatics. As
soon as he left the nursery, he was sent to a preparatory school at
Isleworth, the master of which was a rigid Presbyterian. His wife was a
furious Independent, and she ruled the household. "She used to instruct
her babes in the gift of praying by the Spirit, and all the scholars were
made to kneel by a bedside and pray; but this petit spark was too small
for that posture, and was set upon a bed to kneel, with his face to a
pillow."

His family becoming disgusted with the extravagance of the ruling powers,
and beginning to look to royalty as the only cure for the evils the nation
was suffering, he was removed from Isleworth, and put to a grammar school
at Bury St. Edmunds, under a cavalier master.

In 1653, he was admitted a fellow commoner at St. John's College,
Cambridge. He is said to have remained there two or three years, applying
diligently to the studies of the place; but he seems to have devoted much
of his time to the bass-viol, and he left the university without a degree.

He was then transferred to the Middle Temple. His father bought him a very
small set of chambers, in which he shut himself up, and dedicated himself
to the study of the law. He early learned and often repeated this saying
of the citizens to their apprentices, "Keep your shop, and your shop will
keep you." He did not frequent riding schools, or dancing schools, or
playhouses, or gaming houses--so dangerous to youth at the Inns of Court.
Though he could "make one at gammon, gleek, piquet, or even the
merry-main, he had ever a notable regard to his purse to keep that from
oversetting, like a vessel at sea that hath too much sail and too little
ballast."

While a student, he paid frequent and long visits to his grandfather, who
seems to have become a most singularly tyrannical and capricious old man.
Frank exerted himself to the utmost to comply with all his humors, being
allowed by him £20 a year. He was always industrious during these visits,
though he could not altogether avoid bowling, fishing, hunting, visiting,
and billiards; he spent the greater part of his time in reading and
commonplacing the law books brought down to him by the carrier.

While in town, he always dined in the hall--twelve at noon being the hour
of dinner--and supped there again at six; after which "case-putting" began
in the cloister walks; and he acquired the character of a great
"put-case." He kept a commonplace book, which seems to have been almost as
massive as Brooke's "Abridgment of the Law." He made himself well
acquainted with the Year Books, although not altogether so passionately
attached to them as Serjeant Maynard, who, when he was taking an airing in
his coach, always carried a volume of them along with him, which, he said,
amused him more than a comedy. He attended all famous legal arguments,
particularly those of Sir Heneage Finch, and taking notes in the morning
in law French, he employed himself at night in making out in English a
report of the cases he had heard.

By way of relaxation he would go to music meetings, or to hear Hugh Peters
preach. Nothing places him in such an amiable point of view as the delight
he is said to have taken, on rare occasions, in "a petit supper and a
bottle," when there really seems to have been a short oblivion of anxiety
about his rise in the world; but, to show his constitutional caution, his
brother Roger assures us that, "whenever he was a little overtaken, it was
a warning to him to take better care afterwards."

Long before he was called to the bar, "he undertook the practice of
court-keeping;" that is, he was appointed the steward of a great many
manors by his grandfather and other friends, and he did all the work in
person, writing all his court-rolls, and making out his copies with his
own hand. I am afraid he now began his violation of the rights and
liberties of his fellow-subjects by practising some petty extortions upon
the bumpkins who came before him. "His grandfather," says Roger,[83] with
inimitable simplicity, "had a venerable old steward, careful by nature and
faithful to his lord, employing all his thoughts and time to manage for
supply of his house and upholding his rents,--in short, one of a race of
human kind heretofore frequent, but now utterly extinct,--affectionate as
well as faithful, and diligent rather for love than self-interest. This
old gentleman, with his boot-hose and beard, used to accompany his young
master to his court-keeping, and _observing him reasoning the country
people out of their pence for essoines, &c._, he commended him, saying,
'If you will be contented, Master Frank, to be a great while getting a
little, you will be a little while getting a great deal;' wherein he was
no false prophet."

Having been the requisite time on the books of the society of the Middle
Temple, and performed all his moots, (upon which he bestowed great labor,)
Francis was called to the bar.

The allowance of sixty pounds a year which he had hitherto received from
his father was now reduced to fifty, in respect of the pence he collected
by court-keeping and the expected profits of his practice. He highly
disapproved of this reduction, and wrote many letters to his father to
remonstrate against it. At last he received an answer which he hoped was
favorable, but which contained only these words, "Frank, I suppose by this
time, having vented all your discontent, you are satisfied with what I
have done." The reduced allowance, however, was continued to him as long
as his father lived, who said "he would not discourage industry by
rewarding it when successful with loss."

The young barrister was now hard put to it. He took "a practising chamber"
on a first floor in Elm Court, "a dismal hole--dark next the court, and on
the other side a high building of the Inner Temple standing within five or
six yards of the windows." He was able to fill his shelves with all useful
books of the law from the produce of certain legacies and gifts collected
for him by his mother,[84] and he seems still to have had a small
pecuniary help from his grandfather. For some time he had great difficulty
in keeping free from debt; but he often declared that "if he had been sure
of a hundred pounds a year to live upon, he had never been a lawyer."

He is much praised by his brother, because it is said "he did not, (as
seems to have been common,) for the sake of pushing himself, begin by
bustling about town and obtruding himself upon attorneys, or bargaining
for business, but was contented if chance or a friend brought him a
motion, as he was standing at the bar taking notes." These, however, came
so rarely that he fell into a very dejected and hypochondriacal state.
Thinking himself dying, he carried a list of his ailments to a celebrated
physician, Dr. Beckenham of Bury, who laughed at him and sent him away,
prescribing fresh air and amusement.

He was in danger of utterly sinking in the slough of despond, when he was
suddenly taken by the hand by the great lawyer, Sir Jeffrey Palmer, who
was made attorney general on the restoration of Charles II., and who if he
had lived must have been lord chancellor. His son Edward, a very promising
young man, lately called to the bar, died about this time in the arms of
Francis North, who had been at college with him, and had shown him great
attention during his illness.

All the business destined for young Palmer now somehow found its way to
his surviving friend. His powerful protector, the attorney general,
rapidly brought him forward by employing him in government prosecutions,
and even when he himself was confined by illness, by giving him his briefs
in smaller matters to hold for him in court. North, we may be sure, was
most devotedly assiduous in making a suitable return for this kindness,
and in flattering his patron. Instead of the sentiments he had imbibed
from his family in his early days, he now loudly expressed those of an
ultra prerogative lawyer, exalting the power of the king both over the
church and the Parliament.

Being considered a rising man, his private friends and near relations came
to consult him. He was once asked if he took fees from them. "Yes," said
he; "they no doubt come to do me a kindness; and what kindness have I if I
refuse their money?"

Soon after he was called to the bar, he went the Norfolk circuit, where
his family interest lay; but here again he chiefly relied upon his grand
resource of flattering his superiors and accommodating himself to their
humors. "He was exceeding careful to keep fair with the cocks of the
circuit, and particularly with Serjeant Earl, who had almost a monopoly.
The Serjeant was a very covetous man, and when none would starve with him
in journeys, this young gentleman kept him company." They once rode
together from Cambridge to Norwich without drawing bit, to escape the
expense of baiting at an inn; and North would have been famished, if the
serjeant's man, knowing his master's habits, had not privately furnished
him with a cake. He asked the serjeant, out of compliment to his riches,
how he kept his accounts, "for you have," said he, "lands, securities, and
great comings in of all kinds." "Accounts, boy!" exclaimed the serjeant,
"I get as much as I can, and I spend as little as I can; and there is all
the account I keep." In these journeys the serjeant talked so agreeably of
law, and tricks, and purchases, and management, that North's hunger was
beguiled, and he thought only of the useful knowledge he was acquiring,
and the advantage to be derived from the countenance of a man so looked up
to.

Lord Chief Justice Hyde generally rode the Norfolk circuit, and so
completely had North taken the measure of his foot, that my lord called
him "cousin" in open court, "which was a declaration that he would take it
for a respect to himself to bring him causes." The biographer to whom we
are so much indebted lays it down that there is no harm in a judge letting
it be known "that a particular counsel will be easily heard before him,
and that his errors and lapses, when they happen, will not offend his
lordship or hurt the cause." The morality of the bar in those days will be
better understood by the following observations of simple Roger: "In
circuit practice there is need of an exquisite knowledge of the judge's
humor, as well as his learning and ability to try causes; and he, North,
was a wonderful artist at watching a judge's tendency, to make it serve
his turn, and yet never failed to pay the greatest regard and deference to
his opinion; for so they get credit; because _the judge for the most part
thinks that person the best lawyer that respects most his opinion_. I have
heard his lordship say, that sometimes he hath been forced to give up a
cause to the judge's opinion when he (the judge) was plainly in the wrong,
and when more contradiction had but made him more positive; and, besides,
that in so doing he himself had weakened his own credit with the judge,
thereby been less able to set him right when he was inclined to it. A good
opinion so gained often helps at another time to good purpose, and
sometimes to ill purpose; as I heard it credibly reported of Serjeant
Maynard that, being the leading counsel in a small feed cause, he would
give it up to the judge's mistake, and not contend to set him right, that
he might gain credit to mislead him in some other cause in which he was
well feed." These gentlemen of the long robe ought to have changed places
in court with the highwaymen they were retained to prosecute.[85]

There was no nonsense, however arrant, a silly judge might speak in
deciding for North, which he would not back. Thus a certain Mr. Justice
Archer, who seems to have been the laughing stock of the profession,
having, to the amusement of the juniors, "noted a difference between a
renunciation of an executorship upon record and _in pais_," North said,
"Ay, my lord; just so, my lord;" upon which his lordship became as fierce
as a lion, and would not hear the argument on the other side. But even
such a learned and sensible judge as Chief Justice Hale, North could win
by an affectation of modesty, diffidence, and profound veneration. Early
in his career, when he found it difficult to get to his place in a very
crowded court, Sir Matthew said from the bench, "Good people, make way for
this little gentleman; he will soon make way for himself."

His consultations were enormously long, and he gained vast applause at
them by his care and dexterity in probing the cause, starting objections,
inventing points, foretelling what would be said by the opposite counsel
and by the judge, and showing how the verdict might be lost or was to be
secured; but, to make security doubly sure, after mastering the record and
perusing the deeds to be given in evidence, he himself examined the
witnesses, and thus had an opportunity of presenting the facts properly to
their minds.

Need we wonder that from an humble beginner, rejoicing in a cause that
came to him, he soon became "cock of the circuit"--all who had trials
rejoicing to have him on their side?

I shall give one specimen of his conduct as a leader. He was counsel for
the defendant in an action tried before his friend Judge Archer, for not
setting out tithes--in which the treble value was to be recovered. Finding
that he had not a leg to stand upon, he manoeuvred to get his client off
with the single value; so he told his lordship that this was a cause to
try a right of a very intricate nature, which would require the reading a
long series of records and ancient writings, and that it ought not to be
treated as a penal action; wherefore, they should agree upon the single
value of the tithes, for which the verdict should be taken conditionally,
and then proceed fairly to try the merits. The judge insisted on this
course being adopted; and the other side, not to irritate him, acquiesced
in North's proposal. "Then did he open a long history of matters upon
record, of bulls, monasteries, orders, greater and lesser houses,
surrenders, patents, and a great deal more, _very proper if it had been
true_, while the counsel on the other side stared at him; and having done,
they bid him go to his evidence. He leaned back, as speaking to the
attorney, and then, '_My lord_,' said he, '_we are very unhappy in this
cause. The attorney tells me they forgot to examine their copies with the
originals at the Tower_;' and (so folding up his brief,) '_My lord_,' said
he, '_they must have the verdict, and we must come better prepared another
time_.' So, notwithstanding all the mooting the other side could make,
the judge held them to it, and they were choused of the treble value."

While North had such success on the circuit, he was equally flourishing in
Westminster Hall. By answering cases and preparing legal arguments for Sir
Jeffrey Palmer, and by flouting at parliamentary privilege, he was still
higher than ever in favor with that potential functionary. It happened
that in the year 1668, after the fall of the Earl of Clarendon, a writ of
error was brought in the House of Lords by Denzil Hollis, now Lord Hollis,
the only defendant surviving, upon the judgment of the Court of King's
Bench in the great case of _The King_ v. _Sir John Elliot, Denzil Hollis,
and Others_, decided in the fifth year of the reign of Charles I. This had
been a prosecution by the king against five members of the House of
Commons, for what had been done in the House on the last day of the
session, when Sir John Finch was held in the chair while certain
resolutions alleged to be seditious had been voted, and one of the
defendants had said "that the Council and judges had all conspired to
trample under foot the liberties of the subject." They had pleaded to the
jurisdiction of the Court of King's Bench, "that the supposed offences
were committed in Parliament, and ought not to be punished or inquired of
in this court, or elsewhere than in Parliament." But their plea had been
overruled, and they were all sentenced to heavy fine and imprisonment.

Although there had been resolutions of the House of Commons, on the
meeting of the Long Parliament, condemning this judgment, it still stood
on record, and Lord Hollis thought it was a duty he owed to his country,
before he died, to have it reversed.

Sir Jeffrey Palmer, as attorney general, pleaded _in nullo est erratum_;
but having returned his writ of summons to the House of Lords, and being
in the habit of sitting there on the woolsack, as one of the assessors to
the peers, he could not himself argue the case as counsel at the bar. The
king's serjeants declined to do so out of respect to the House of Commons.
Francis North, thinking this a most favorable opportunity to make himself
known at court as an anti-parliamentarian lawyer, volunteered to support
the judgment, and his services were accepted. He says himself "he was
satisfied he argued on the right side, and that on the record the law was
for the king." Accordingly, on the appointed day he boldly contended that,
as the information averred that the offences were committed _against the
peace_, as privilege of Parliament does not extend to offences in breach
of the peace, as they had not been punished in the Parliament in which
they were committed, and as no subsequent Parliament could take notice of
them, they were properly cognizable in a court of common law. The judgment
was reversed, but North's fortune was made. The Duke of York was pleased
to inquire "who that young gentleman was who had argued so well." Being
told that "he was the younger son of the Lord North, and, what was rare
among young lawyers at that time, of loyal principles," his royal highness
undertook to encourage him by getting the king to appoint him one of his
majesty's counsel. North was much gratified by receiving a message to this
effect, but was alarmed lest the Lord Keeper Bridgeman, who by his place
was to superintend preferments in the law, might conceive a grudge against
him for this interference with his patronage. The lord keeper acquitted
him of all blame, wished him joy, and with peculiar civility desired him
to take his place within the bar.

Things went on very smoothly with him now till the death of Sir Jeffrey
Palmer, when Sir Heneage Finch being promoted to be attorney general, the
solicitor's place was vacant. North, being the only king's counsel, and
having been long employed in crown business, had a fair claim to succeed,
and he was warmly supported by the lord keeper, as well as the new
attorney general, who was desirous of having him for a colleague; but the
Duke of Buckingham, at this time considered prime minister, preferred Sir
William Jones, who was North's chief competitor in the King's Bench, and
over whose head he had been put when he received his silk gown.[86]

To terminate the difference they were both set aside, and the office of
solicitor general was given to Sir Edward Turner, speaker of the House of
Commons, who held it for a twelvemonth, at the end of which he was made
chief baron of the Exchequer, in the room of Sir Matthew Hale, promoted to
be chief justice of the Common Pleas.

Buckingham's influence had greatly declined, and North was made solicitor
general without difficulty, Jones being solaced with a silk gown, and the
promise of further promotion on the next vacancy.

The Cabal was now in its full ascendancy; and as the leaders did not take
any inferior members of the government into their councils, and contrived
to prevent the meeting of Parliament for nearly two years, the new
solicitor had only to attend to his profession. Of course, he gave up the
circuit, and he set the example, generally followed for one hundred and
fifty years, of making the Court of Chancery his principal place of
practice, on being promoted to be a law officer of the crown; henceforth
going to other courts only in cases in which the crown was concerned, or
which were of very great magnitude. To keep up his law, when he could be
spared from the Court of Chancery, he stepped across the hall and seated
himself in the Court of King's Bench, "with his note book in his hand,
reporting as the students about the court did, and during the whole time
of his practice every Christmas he read over Littleton's Tenures." He had
hitherto practised conveyancing to a considerable extent; but he now
turned over this business to Siderfin the reporter, whom he appointed to
serve him in the capacity of "devil," as he himself had served Sir Jeffrey
Palmer. He was on very decent terms with Sir Heneage Finch, who had much
assisted his promotion; but he showed his characteristic cunning by an
expedient he adopted to get the largest share of the patent business.
Then, as now, all patents of dignity belong exclusively to the attorney
general; but the warrants for all other patents might be carried either to
the attorney or solicitor. North, with much dexterity, took into his
employment a clerk of Sir Jeffrey Palmer, who was reputed to have a
magazine of the best precedents, and who had great interest among the
attorneys, whereby many patents came to his chambers which otherwise would
have gone to the attorney general's.

But if he was eager to get money, he spent it freely. He was now appointed
"autumn reader" of the Middle Temple, and though the festivity was not
honored with the presence of royalty, like Finch's, in the Inner Temple,
it was conducted sumptuously, and cost him above a thousand pounds. He
took for his subject "The Statute of Fines," which he treated very
learnedly, and the arguers against him, the best lawyers of the society,
did their part very stoutly. On the "Grand Day" all the king's chief
ministers attended, and the profusion of the best provisions and wine led
to such debauchery, disorder, tumult, and waste, that this was the last
public reading in the Inns of Court, the lectures being discontinued and
the banqueting commuted for a fine.

I must not pass over his loves, although they were not very romantic or
chivalrous. He was desirous of being married, among other reasons, because
he was tired of dining in the hall and eating "a costelet and salad at
Chastelin's in the evening with a friend;" and he wished to enjoy the
pleasures of domestic life. One would have thought that the younger son of
a peer, of great reputation at the bar, solicitor general at thirty-one,
and rising to the highest offices in the law, might have had no difficulty
in matching to his mind; but he met with various rebuffs and
disappointments. Above all, he required wealth, which it seems was not
then easily to be obtained without the display of a long rent roll. He
first addressed the daughter of an old usurer in Gray's Inn, who speedily
put an end to the suit by asking him "what estate his father intended to
settle upon him for present maintenance, jointure, and provision for
children." He could not satisfy this requisition by an "abstract" of his
"profitable rood of ground in Westminster Hall." He then paid court to a
coquettish young widow; but after showing him some favor, she jilted him
for a jolly old knight of good estate. The next proposition was made by
him to a city alderman, the father of many daughters, who, it was given
out, were to have each a portion of six thousand pounds. North dined with
the alderman, and liked one of them very much; but coming to treat, the
fortune shrank to five thousand pounds. He immediately took his leave. The
alderman ran after him, and offered him to boot five hundred pounds on the
birth of the first child, but he would not bate a farthing of the six
thousand.

At last his mother found him a match to his mind in the Lady Frances Pope,
one of the three daughters and coheirs of the Earl of Down, who lived at
Wroxton, in Oxfordshire, with fortunes of fourteen thousand pounds apiece.
We are surprised to find that, with all his circuit and Westminster Hall
earnings, he was obliged to borrow six hundred pounds from a friend before
he could compass six thousand pounds to be settled upon her. He then
ventured down with grand equipage and attendance, and in less than a
fortnight obtained the young lady's consent, and the writings being
sealed, the lovers were happily married. The feasting and jollities in the
country lasted three weeks, and Mr. Solicitor, heartily tired of them, was
very impatient to get back to his briefs. However, he seems always to have
treated his wife, while she lived, with all due tenderness. He took a
house in Chancery Lane, near Serjeants' Inn, and acquired huge glory by
constructing a drain for the use of the neighborhood--a refinement never
before heard of in that quarter. This was the happiest period of his life.

In the beginning of 1673, the meeting of Parliament could be deferred no
longer, and it was considered necessary that the solicitor general should
have a seat in the House of Commons.

He remained member for Lynn till he was made chief justice of the Common
Pleas, in January, 1675; but I can hardly find any trace of his ever
having spoken in the House of Commons.

Shaftesbury was at last turned out, the great seal was given to Sir
Heneage Finch, and North became attorney general. He had for his colleague
as solicitor his old rival, Sir William Jones, who seems to have been a
considerable man, who afterwards had the virtue voluntarily to give up
office that he might join the popular party, and who, if not cut off by an
early death, would probably have acted the part of Lord Somers at the
Revolution, and left a great name in history.

Parliament met in a few weeks after North's promotion. We are told that
"little or nothing of the king's business in the House of Commons leaned
upon him, because Mr. Secretary Coventry was there, who managed for the
court." North once or twice spoke a few words, "in resolving the fallacies
of the country party," but did not venture beyond an opinion upon a point
of law which incidentally arose.

"He could not attend the house constantly, but took the liberty of
pursuing his practice in Westminster Hall."[87] There he was easily the
first; and the quantity of business which he got through in Chancery ("his
home") and the other courts where he went _special_ seems to have been
enormous. His mode of preparation was (like Lord Erskine's) to have a
consultation in the evening before reading his brief, when "he was
informed of the history of the cause, and where the pinch was". Next
morning at four he was called by a trusty boy, who never failed, winter or
summer, to come into his chamber at that hour,[88] and by the sitting of
the court he had gone through his brief, and was ready to do ample justice
to his clients.

Fees now flowed in upon him so fast that he hardly knew how to dispose of
them. He seems to have taken them from his clients with his own hand. At
one time he had had a fancy, for his health, to wear a sort of skullcap.
He now routed out three of these, which he placed on the table before him,
and into these he distributed the cash as it was paid to him. "One had the
gold, another the crowns and half crowns, and another the smaller money."
When these vessels were full, they were committed to his brother Roger,
who told out the pieces and put them into bags, which he carried to
Child's, the goldsmith, at Temple Bar.[89]

But still Mr. Attorney was dissatisfied with his position. He could not
but be mortified by his insignificance in the House of Commons. The
country party there was rapidly gaining strength, and although it was not
then usual for the crown to turn out its law officers on a change of
ministers, he began to be very much frightened by threats of impeachment
uttered against all who were instrumental in executing the measures of the
government. Shaftesbury was in furious opposition. While only at the head
of a small minority in the House of Lords, the House of Commons was more
and more under his influence. North was exceedingly timid, always
conjuring up imaginary dangers, and exaggerating such as he had to
encounter. He now exceedingly longed to lay his head on "the cushion of
the Common Pleas," instead of running the risk of its being laid on the
block on Tower Hill.

Vaughan, the chief justice of that court, died, and North's wishes were
accomplished, notwithstanding some intrigues to elevate Sir William Jones
or Sir William Montagu. When it came to the pinch, North was rather
shocked to think of the sacrifice of profit which he was making, "for the
attorney's place was (with his practice) near seven thousand pounds per
annum, and the cushion of the Common Pleas not above four thousand. But
accepting, he accounted himself enfranchised from the court brigues and
attendances at the price of the difference."

North held the office of chief justice of the Common Pleas nearly eight
years, which may be divided into two periods--1st. From his appointment
till the formation of the Council of Thirty, on the recommendation of Sir
William Temple, in the year 1679; 2dly. From thence till he received the
great seal, in the end of the year 1682. During the former he mixed little
in politics, and devoting himself to his juridical duties, he discharged
them creditably.

At this time, and for long after, the emoluments of the judges in
Westminster Hall depended chiefly upon fees, and there was a great
competition between the different courts for business. The King's Bench,
originally instituted for criminal proceedings, had, by a dexterous use of
their writ of "_latitat_," tricked the Common Pleas of almost all civil
actions; and when the new chief justice took his seat, he found his court
a desert. There was hardly sufficient business to countenance his coming
every day in term to Westminster Hall, while the serjeants and officers
were repining and starving. But he was soon up with the King's Bench, by
a new and more dexterous use of the "_capias_," the ancient writ of that
court--applying it to all personal actions.

At this time, a judge, when appointed, selected a circuit, to which he
steadily adhered, till another, which he preferred, became vacant. Chief
Justice North for several years "rode the western;" and in his charges to
juries, as well as in his conversation with the country gentlemen, he
strongly inculcated the most slavish church-and-king doctrines, insomuch
that the Cavaliers called him "_Deliciæ Occidentis_," or "The Darling of
the West."

The chief justice afterwards went the northern circuit, attended by his
brother Roger, who gives a most entertaining account of his travels, and
who seems to have thought the natives of Northumberland and Cumberland as
distant, as little known, and as barbarous, as we should now think the
Esquimaux or the aborigines of New Zealand.

Till the Popish plot broke out, Chief Justice North had no political
trials before him; and the only cases which gave him much anxiety were
charges of witchcraft. He does not appear, like Chief Justice Hale, to
have been a believer in the black art; but, with his characteristic
timidity, he was afraid to combat the popular prejudice, lest the
countrymen should cry, "This judge hath no religion; he doth not believe
witches." Therefore he avoided trying witches himself as much as possible,
and turned them over to his brother judge, Mr. Justice Raymond, whom he
allowed to hang them. He was once forced to try a wizard; but the fraud of
a young girl, whom the prisoner was supposed to have enchanted and made to
spit pins, was so clearly exposed by the witnesses, that the chief
justice had the boldness to direct an acquittal.

The Popish plot he treated as he did witchcraft. He disbelieved it from
the beginning, but was afraid openly to express a doubt of its reality. He
thought it might be exposed by the press, and he got a man to publish an
anonymous pamphlet against it, to which he contributed; but sitting along
with Chief Justice Scroggs, who presided at the trial of those charged
with being implicated in it, he never attempted to restrain this
"butcher's son and butcher" from slaughtering the victims.

So on the trial of Lord Stafford, though he privately affected severely to
condemn the proceeding, he would not venture to save Lord Nottingham,[90]
the high steward, from the disgrace of assisting in that murder; and he
dryly gave his own opinion that two witnesses were not necessary to each
overt act of treason.

We have still more flagrant proof of his baseness on the trial of Reading,
prosecuted by order of the House of Commons for trying to suppress
evidence of the plot. North himself now presided, and having procured a
conviction, in sentencing the defendant to fine, imprisonment, and
pillory, he said, "I will tell you your offence is so great, and hath such
a relation to that which the whole nation is concerned in, because it was
an attempt to baffle the evidence of that conspiracy, which, if it had not
been, by the mercy of God, detected, God knows what might have befallen
us all by this time."

We now come to present North on the political stage, where he continued to
act a very conspicuous and disreputable part down to the time of his
death. In the year 1679, when the king adopted his new plan of government
by a Council of Thirty, of which Shaftesbury was made president, and into
which Lord Russell and several of the popular leaders were introduced, it
was thought fit to balance them by some determined ultra-royalists; and
the lord chief justice of the Common Pleas, who had acquired himself the
reputation of being the most eminent of that class, was selected, although
he had not hitherto been a privy councillor. At first he seldom openly
gave any opinion in council, but he secretly engaged in the intrigues
which ended in the abrupt prorogation and dissolution of the Parliament,
in the dismissal of Shaftesbury, and the resignation of Lord Russell and
the whigs. The scheme of government was then altered, and a cabinet,
consisting of a small number of privy councillors, was formed, North being
one of them. To his opinion on legal and constitutional questions the
government was now disposed to show more respect than to that of Lord
Chancellor Nottingham.

There being much talk against the court in the London coffee houses, it
was wished to suppress them by proclamation; and our chief justice, being
consulted on the subject, gave this response--that "though retailing of
coffee may, under certain circumstances, be an innocent trade, yet as it
is used at present in the nature of a common assembly to discourse of
matters of state, news, and great persons, it becomes unlawful; and as the
coffee houses are nurseries of idleness and pragmaticalness, and hinder
the consumption of our native provisions, they may be treated as common
nuisances." Accordingly, a proclamation was issued for shutting up all
coffee houses, and forbidding the sale of coffee in the metropolis; but
this caused such a general murmur, not only among politicians and idlers,
but among the industrious classes connected with foreign and colonial
trade, that it was speedily recalled.

The meeting of the new Parliament summoned in the end of 1679 having been
repeatedly postponed, there arose the opposite factions of "Petitioners"
and "Abhorrers"--the former _petitioning_ the king that Parliament might
be speedily assembled for the redress of grievances, and the latter, in
their addresses to the king, expressing their _abhorrence_ of such
seditious sentiments. The "Petitioners," however, were much more numerous
and active, and a council was called to consider how their proceedings
might be stopped or punished. Our chief justice recommended a
proclamation, which the king approved of, and ordered the attorney
general, Sir Creswell Levinz, to draw. Mr. Attorney, alarmed by
considering how he might be questioned for such an act on the meeting of
Parliament, said, "I do not well understand what my lord chief justice
means, and I humbly pray of your majesty that his lordship may himself
draw the proclamation." _King._--"My lord, I think then you must draw this
proclamation." _Chief Justice._--"Sire, it is the office of your majesty's
attorney general to prepare all royal proclamations, and it is not proper
for any one else to do it. I beg that your majesty's affairs may go on in
their due course; but if in this matter Mr. Attorney doubts any thing, and
will give himself the trouble to call upon me, I will give him the best
assistance I can."

Sir Creswell, having written on a sheet of paper the formal commencement
and conclusion of a royal proclamation, carried it to the chief justice,
who filled up the blank with a recital that, "for spurious ends and
purposes relating to the public, persons were going about to collect and
procure the subscriptions of multitudes of his majesty's subjects to
petitions to his majesty; which proceedings were contrary to the known
laws of this realm, and ought not to go unpunished;" and a mandate to all
his majesty's loving subjects, of what rank or degree soever, "that they
presume not to agitate or promote any such subscriptions, nor in any wise
join in any petition in that manner to be preferred to his majesty, upon
pain of the utmost rigor of the law, and that all magistrates and other
officers should take effectual care that all such offenders against the
laws be prosecuted and punished according to their demerits."[91]

Parliament at last met, and strong measures were taken against the
"Abhorrers," who had obstructed the right of petitioning. An inquiry was
instituted respecting the proclamation. Sir Creswell Levinz was placed at
the bar, and asked by whose advice or assistance he had prepared it. He
several times refused to answer; but being hard pressed, and afraid of
commitment to the Tower, he named the Lord Chief Justice North, against
whom there had been a strong suspicion, but no proof. A hot debate arose,
which ended in the resolution, "That the evidence this day given to this
house against Sir Francis North, chief justice of the Common Pleas, is
sufficient ground for this house to proceed upon an impeachment against
him for high crimes and misdemeanors."

He was a good deal alarmed by the vote of impeachment,[92] but it raised
him still higher in favor at court. Next day, presiding in the House of
Lords as speaker, in the absence of the lord chancellor, and seeming very
much dejected, King Charles (according to his manner) "came and clapped
himself down close by him on the woolsack, and 'My lord,' said he, 'be of
good comfort; I will never forsake my friends, as my father did.'" His
majesty, without waiting for a reply, then walked off to another part of
the house.

A committee was appointed to draw up the articles of impeachment against
the chief justice; but before they made any report, this Parliament too
was dissolved.

Soon after the summoning of Charles's last Parliament, North was obliged
to set off upon the spring circuit; and notwithstanding his best efforts
to finish the business rapidly, he could not arrive at Oxford till the two
houses had assembled.

He was one of the small junto to whom was intrusted the secret of
immediate dissolution. The moment the deed was done, he set off for
London, pretending to be afraid of what he called "the positive armament
against the king, which manifestly showed itself at Oxford."

As soon as the Cabinet met at Whitehall, North advised the issuing of a
Declaration to justify the dissolution of the three last Parliaments which
had met respectively at Westminster and Oxford, and himself drew an
elaborate one, which was adopted. This state paper certainly puts the
popular party in the wrong upon the "exclusion question" and other matters
with considerable dexterity, and it was supposed to have contributed
materially to the reaction going on in favor of the government.

So far his conduct was legitimate, and in the fair exercise of his
functions as a privy councillor; but I am sorry to say that he now sullied
his ermine by a flagrant disregard of his duties as a judge. The grand
jury for the city of London having very properly thrown out the bill of
indictment against Stephen College, "the Protestant joiner," it was
resolved to try him at Oxford; and for this purpose a special commission
was issued, at the head of which was placed Lord Chief Justice North.
Burnet says mildly, "North's behavior in that whole matter was such that,
probably, if he had lived to see an impeaching Parliament, he might have
felt the ill effects of it." After perusing the trial, I must say that his
misconduct upon it was most atrocious. The prisoner, being a violent enemy
to Popery, had attended the city members to Oxford as one of their guard,
with "No Popery" flags and cockades, using strong language against the
Papists and their supporters, but without any thought of using force. Yet
the chief justice was determined that he should be found guilty of
compassing and imagining the king's death, and levying war against him in
his realm.[93] College's papers, which he was to use in his defence, were
forcibly taken from him, on the ground that they had been written by some
other persons, who gave him hints what he was to say. They were in reality
prepared by his legal advisers, Mr. Aaron Smith and Mr. West. The
prisoner was checked and browbeaten as often as he put a question or made
an observation. His defence was much more able than could have been
expected from a person in his station of life, but of course he was
convicted. The chief justice, in passing sentence, observed, "Look you,
Mr. College; because you say you are innocent, it is necessary for me to
say something in vindication of the verdict, which I think the court were
all well satisfied with. I thought it was a case that, as you made your
own defence, small proof would serve the turn to make any one believe you
guilty. For, as you defend yourself by pretending to be a Protestant, I
did wonder, I must confess, when you called so many witnesses to your
religion and reputation, that none of them gave an account that they saw
you receive the sacrament within these many years, or any of them
particularly had seen you at church in many years, or what kind of
Protestant you were. But crying aloud against the Papists, it was proved
here who you called Papists. You had the boldness to say the king was a
Papist, the bishops were Papists, and the church of England were Papists.
If these be the Papists you cry out against, what kind of Protestant you
are I know not--I am sure you can be no good one. How it came into your
head, that were but a private man, to go to guard the Parliament, I much
wonder. Suppose all men of your condition should have gone to have guarded
the Parliament, what an assembly had there been! And though you say you
are no man of quality, nor likely to do any thing upon the king's guards
or the king's person, yet if all your quality had gone upon the same
design, what ill consequences might have followed! We see what has been
done by Massaniello, a mean man, in another country--what by Wat Tyler and
Jack Straw in this kingdom." College asked him to fix the day of his
death, but he answered that that depended on the king; adding, in a tone
of great humanity, "that he should have due notice of it to prepare, by
repenting of his crimes." College's innocence was so manifest, that even
Hume, eager to palliate all the atrocities of this reign, says, "that his
whole conduct and demeanor prove him to have been governed by an honest
but indiscreet zeal for his country and his religion." On the 31st of
August, 1681, the sentence, with all its savage barbarities, was carried
into execution. "Sir Francis North," observes Roger Coke, "was a man cut
out, to all intents and purposes, for such a work."

He was next called upon to assist at the immolation of a nobler victim,
who escaped from the horns of the altar. Shaftesbury had been for some
time very careful never to open his mouth on politics out of the city of
London and county of Middlesex, and during the Oxford Parliament had
touched on no public topic except in the House of Lords. It was resolved
at all hazards to bring him to trial; but this could only be done by an
indictment to be found at the Old Bailey. There did North attend when the
indictment was to be preferred, and, resolutely assist Lord Chief Justice
Pemberton in perverting the law,[94] by examining the witnesses in open
court, and by trying to intimidate and mislead the grand jury; but he was
punished by being present at the shout, which lasted an hour, when
"_Ignoramus_" was returned.

He next zealously lent himself to the scheme of the court for upsetting
the municipal privileges of the city of London, and of obtaining sheriffs
for London and Middlesex who would return juries at the will of the
government. The lord mayor having been gained over, and the stratagem
devised of creating a sheriff by the lord mayor drinking to him, instead
of by the election of his fellow-citizens, the difficulty was to find any
freeman of fair character who would incur all the odium and risk of being
so introduced to the shrievalty. It so happened that at that time there
returned to England a brother of the chief justice, Mr. Dudley, afterwards
Sir Dudley North, who was free of the city from having been apprenticed
there to a merchant, and who had amassed considerable wealth by a long
residence in Turkey. It being suggested at court that this was the very
man for their sheriff; "the king very much approved of the person, but was
very dubious whether the chief justice, with his much caution and wisdom,
would advise his brother to stand in a litigious post. But yet he resolved
to try; and one day he spoke to Sir Francis with a world of tenderness,
and desired to know if it would be too much to ask his brother Dudley to
hold sheriff on my lord mayor's drinking." The wily chief justice
immediately saw the advantage this proposal might bring to the whole
family, and returned a favorable answer. "For matter of title," says
Roger, "he thought there was more squeak than wool; for whatever people
thought was at the bottom, if a citizen be called upon an office by the
government of the city, and obeys, where is the crime? But then such a
terrible fear was artificially raised up in the city as if this service
was the greatest hazard in the world." Sir Francis gently broke the matter
to his brother, saying "that there was an opportunity which preferred
itself whereby he might make a fortune if he wanted it, and much enlarge
what he had, besides great reputation to be gained, which would make him
all the days of his life very considerable, laying open the case of the
lord mayor's right very clear and plain, against which in common sense
there was no reply." Dudley, however, made many objections, and talked of
the terrible expense to which he should be exposed. The chief justice
urged that if he served, the obligation was so transcendent, that there
could be no employment by commission from the crown which would not fall
to his share, "and as for the charge," said he, "here, brother, take a
thousand pounds to help make good your account, and if you never have an
opportunity by pensions or employments to reimburse you and me, I will
lose my share; else I shall be content to receive this thousand pounds out
of one half of your pensions when they come in, and otherwise not at all."
The merchant yielded; and under this pure bargain, proposed by the judge
before whom the validity of the appointment might come to be decided, when
his health was given by the lord mayor as sheriff of London and Middlesex,
he agreed to accept the office.

But the old sheriffs insisted on holding a common hall for the election of
their successors, according to ancient usage, on Midsummer day; when Lord
Chief Justice North had the extreme meanness, at the king's request, to go
into the city and take post in a house near Guildhall, belonging to Sir
George Jeffreys, "who had no small share in the conduct of this affair, to
the end that if any incident required immediate advice, or if the spirits
of the lord mayor should droop, which in outward appearance were but
faint, there might be a ready recourse." It is true the opposite faction
had the Lord Grey de Werke and other leaders from the west end of the
town, to advise and countenance them; but this could be no excuse for a
judge so degrading himself. The poll going for the popular candidates, the
lord mayor, by Chief Justice North's advice, under pretence of a riot,
attempted to adjourn the election; but the sheriffs required that the
polling should continue, and declared Papillon and Dubois duly elected.

This causing great consternation at Whitehall, a council was called, to
which the lord mayor and aldermen were summoned. Lord Chief Justice North,
by the king's command, addressed them, saying, "that the proceedings of
the sheriffs at the common hall after the adjournment were not only
utterly null and void, but the persons were guilty of an audacious riot
and contempt of lawful authority, for which by due course of law they
would be severely punished; but in the mean time it was the lord mayor's
duty and his majesty's pleasure that they should go back to the city and
summon the common hall, and make election of sheriffs for the year
ensuing." The lord mayor, having been told that the courtiers would
bamboozle him and leave him in the lurch, when North had concluded, said,
"My lord, will your lordship be pleased to give me this under your hand?"
The king and all the councillors were much tickled to see the wily chief
justice thus nailed, "expecting some turn of wit to fetch himself off, and
thinking to have sport in seeing how woodenly he would excuse himself."
But to their utter astonishment, for once in his life Francis North was
bold and straightforward, and cheating them all, he answered, without any
hesitation, "Yes, and you shall have it presently." Then seizing a pen, he
wrote, "I am of opinion that it is in the lord mayor's power to call,
adjourn, and dissolve the common hall at his pleasure, and that all acts
done there, as of the common hall, during such adjournment, are mere
nullities, and have no legal effect." This he signed and handed to the
lord mayor, who then promised obedience.

Accordingly, another common hall was called, at which it was pretended
that Sir Dudley North and Rich were elected, and they were actually
installed in the office of sheriff. By the contrivance of Lord Chief
Justice North, the office of lord mayor for the ensuing year was likewise
filled by a thorough passive-obedience tool of the court. Gould, the
liberal candidate, had a majority of legal votes on the poll, but under a
pretended scrutiny, Pritchard was declared duly elected, and Sir John
More, the renegade mayor, willingly transferred to him the insignia of
chief magistrate, so that the king had now the city authorities completely
at his devotion. Shaftesbury fled to Holland; and it was for the court to
determine when the blow should be struck against the popular leaders who
remained.

Such were the services of Lord Chief Justice North, which all plainly saw
would ere long be rewarded by higher promotion. The health of Lord
Nottingham, the chancellor, was rapidly declining, and the court had
already designated his successor. Lord Craven, famous for wishing to
appear intimate with rising men, in the circle at Whitehall, now seized
Lord Chief Justice North by the arm and whispered in his ear; and the
foreign ambassadors so distinctly saw the shadow of the coming event that
they treated him with as great respect as if he had been prime minister,
"and when any of them looked towards him and thought he perceived it, they
very formally bowed."

We are told that in many things North acted as "co-chancellor" with
Nottingham; and for the first time the office of chancellor seems to have
been like that of sheriff of Middlesex, one in its nature, but filled by
two officers of equal authority. It is said that "the _aspirant_ dealt
with all imaginable kindness and candor to the _declinant_, and that never
were predecessor and successor such cordial friends to each other, and in
every respect mutually assistant, as those two were."

While the lord chancellor was languishing, the chief justice being at
Windsor, the king plainly intimated to him that when the fatal event,
which must be shortly looked for, had taken place, the great seal would be
put into his hands. He modestly represented himself to his majesty as
unfit for the place, and affected by all his art and skill to decline it.
In truth, he really wished to convey to the king's mind the impression
that he did not desire it, although he had been working so foully for
it--as he knew it would be pressed upon him, there being no competitor so
knowing and so pliant, and he had an important stipulation to make for a
pension before he would accept it. When he came back to London, and
confidentially mentioned what had passed between him and the king, he
pretended to be annoyed, and said "that if the seal were offered to him he
was determined to refuse it;" but it is quite clear that he was highly
gratified to see himself so near the great object of his ambition, and
that his only anxiety now was, that he might drive a good bargain when he
should consent to give up "the cushion of the Common Pleas."

Lord Nottingham having died about four o'clock in the afternoon of Monday,
the 18th of December, 1682, the great seal was carried next morning from
his house, in Great Queen Street, to the king at Windsor. The following
day his majesty brought it with him to Whitehall, and in the evening sent
for the lord chief justice of the Common Pleas, to offer it to him. When
North arrived, he found Lord Rochester, the treasurer, and several other
ministers, closeted with Charles. As yet there was no distinction between
the funds to be applied to the king's private expenses and to the public
service--the exchequer being now very empty, and the resolution being
taken never more to summon a Parliament for supplies--it was considered an
object that the keeper of the great seal should be contented with the fees
of his office, without any allowance or pension from the crown. Charles
himself was careless about such matters, but the treasurer had inculcated
upon him the importance of this piece of economy. As soon as North
entered, his majesty offered him the seal, and the ministers began to
congratulate the new lord keeper; but, with many acknowledgments for his
majesty's gracious intentions, he begged leave to suggest the necessity,
for his majesty's honor, that a pension[95] should be assigned to him, as
it had been to his predecessor, for otherwise the dignity of this high
office could not be supported. Rochester interposed, pointing out the
necessity, in times like these, for all his majesty's servants to be ready
to make some sacrifices; that the emoluments of the great seal were
considerable; and that it would be more becoming to trust to his majesty's
bounty than to seek to drive a hard bargain with him. But Sir George
Jeffreys being yet only a bustling city officer, who could not with any
decency have been put at the head of the law; the attorney and solicitor
general not being considered men of mark or likelihood; Sir Harbottle
Grimston, the master of the rolls, being at death's door, and no other
common law judge besides himself being produceable, the little gentleman
was firm, and positively declared that he would not touch the great seal
without a pension. After much haggling, a compromise took place, by which
he was to have two thousand pounds a year instead of the four thousand
pounds a year assigned to his predecessor. The king then lifted up the
purse containing the seal, and putting it into his hand, said, "Here, my
lord, take it; you will find it heavy." "Thus," says Roger North, "his
majesty acted the _prophet_ as well as the _king_; for, shortly before his
lordship's death, he declared that, _since he had the seal, he had not
enjoyed one easy and contented minute_."

When the new lord keeper came home at night from Whitehall to his house in
Chancery Lane, bringing the great seal with him, and attended by the
officers of the Court of Chancery, instead of appearing much gratified, as
was expected by his brother and his friends, who were waiting to welcome
him, he was in a great rage--disappointed that he had not been able to
make a better bargain, and, perhaps, a little mortified that he had only
the title of "lord keeper" instead of the more sounding one of "lord
chancellor." Recriminating on those with whom he had been so keenly acting
the chapman, he exclaimed, "To be haggled with about a pension, as at the
purchase of a horse or an ox! After I had declared that I would not accept
without a pension, to think I was so frivolous as to insist and desist all
in a moment! As if I were to be wheedled and charmed by their
insignificant tropes! To think me worthy of so great a trust, and withal
so little and mean as to endure such usage! It is disobliging,
inconsistent, and insufferable. What have I done that may give them cause
to think of me so poor a spirit as to be thus trifled with?" It might
have been answered that, though the king and the courtiers made use of him
for their own ends, they had seen his actions, understood his character,
and had no great respect for him. Till Jeffreys was a little further
advanced, they could not run the risk of breaking with him; but then he
was subjected to all sorts of mortifications and insults.

On the first day of the following Hilary term he took his place in the
Court of Chancery. By this time he was in possession of his predecessor's
house in Great Queen Street, Lincoln's Inn Fields, and he had a grand
procession from thence to Westminster Hall, attended by the Duke of
Ormond, the Earls of Craven and Rochester, the great officers of state,
and the judges. He took the oaths, the master of the rolls holding the
book. He does not appear to have delivered any inaugural address. The
attendant lords staid and heard a motion or two, and then departed,
leaving the lord keeper in court.

They might have been well amused if they had remained. For the crooked
purposes of the government, with a view to the disfranchising of the city
of London by the _quo warranto_ defending against it, Pemberton[96] was
this day to be removed from being chief justice of the King's Bench to be
chief justice of the Common Pleas, and Edmund Saunders was to be at once
raised from wearing a stuff gown at the bar to be chief justice of the
King's Bench. This keen but unscrupulous lawyer was previously to be made
a serjeant, that he might be qualified to be a judge, and, coming into the
Court of Chancery, he presented the lord keeper with a ring for himself,
and another for the king, inscribed with the courtly motto, "_Principi sic
placuit_." The lord keeper then accompanied him into court where he was to
preside, called him to the bench, and made him a speech on the duties of
his office. The ceremonies of the day were concluded by his lordship
afterwards going to his old court, the Common Pleas, and there swearing in
Pemberton as his successor, whom he congratulated upon "the ease with
dignity" which he was now to enjoy.

Parasites and preferment-hunters crowded the levee of the new lord keeper.
He was immediately waited upon by the courtly Evelyn, who discovered in
him a thousand good qualities.[97]

In the midst of these blandishments he applied himself with laudable
diligence to the discharge of his judicial duties. He declared that he was
shocked by many abuses in the Court of Chancery, and he found fault with
the manner in which his two predecessors, Bridgeman and Nottingham, had
allowed the practice of the court to lead to delay and expense.

North's conduct as a law reformer was extremely characteristic. He talked
much of issuing a new set of "rules and orders" to remedy all abuses, but
he was afraid "that it would give so great alarm to the bar and officers,
with the solicitors, as would make them confederate and demur, and, by
making a tumult and disturbance, endeavor to hinder the doing any thing
of that kind which they would apprehend to be very prejudicial to their
interests."[98] Then, when he wished to simplify the practice and to speed
causes to a hearing and final decree, he considered that he was not only
to regard the suitors, but that "there was a justice due as well to the
crown, which had advantage growing by the disposition of places, profits,
by process of all sorts, as also the judges and their servants, and
counsel at the bar, and solicitors, who were all in possession of their
advantages, and by public encouragement to spend their youth to make them
fit for them, and had no other means generally to provide for themselves
and their families, and had a right to their reasonable profits, if not
strictly by law, yet through long connivance."

I think we must say that his alleged merit as a chancery reformer consists
chiefly in the profession of good intentions; that he allowed the practice
of the court to remain pretty much as he found it; and that if he saw and
approved what was right, he followed what was wrong--aggravating his
errors by disregarding the strong dictates of his conscience.

Nevertheless, he applied himself very assiduously to the business of his
court, which, from his experience at the bar, and from his having often
sat for his predecessor, was quite familiar to him; and he seems to have
disposed of it satisfactorily. He was not led into temptation by having to
decide in equity any political case; and no serious charge was preferred
against him of bribery or undue influence. Till the meeting of Parliament
in the reign of James, and the failure of his health, he prevented the
accumulation of arrears; and, upon the whole, as an Equity judge, he is to
be praised rather than censured.

I wish as much could be said of his political conduct while he held the
great seal. He may have _wished_ "to bring the king to rule wholly by law,
and to do nothing which, by any reasonable construction, might argue the
contrary;" but for this purpose he would make feeble efforts, and no
sacrifice; and all the measures of the court, however profligate, when
resolved upon, he strenuously assisted in carrying into execution.

The ministers who now bore sway, and who were on several points opposed to
each other, were Halifax, Sunderland, and Rochester. The Duke of York,
restored to the office of lord high admiral and to the Privy Council, in
direct violation of the "test act," had so much influence, that it was
said that "to spite those who wished to prevent him from reigning at the
king's death, he was permitted to reign during the king's life." The
Duchess of Portsmouth was likewise at the head of a party at court,
although Mrs. Gwin, her Protestant rival, did not interfere with politics.
With none of these would the lord keeper combine. His policy was to study
the peculiar humors of the king--to do whatever would be most agreeable
personally to him--to pass for "the king's friend"--and to be "_solus cum
solo_."

Charles, although aware of his cunning and his selfishness, was well
pleased with the slavish doctrines he laid down, and with the devoted zeal
he expressed for the royal prerogative; and till Jeffrey's superior vigor,
dexterity, and power of pleasing gained the ascendancy, usually treated
him with decent consideration.

He never would give any opinion on foreign affairs, nor attend a committee
of council summoned specially to consider them, professing himself, for
want of a fit education and study, incompetent to judge at all of these
matters, and declaring, like a true courtier, that "King Charles II.
understood foreign affairs better than all his councils and councillors
put together." But he regularly attended all other cabinet meetings, and
when there was any business of a judicial nature to be done at the
council-table, he always presided there, "the lord president not having
the art of examining into and developing cases of intricacy."

The first of these in which he had to display his powers, was the
disfranchisement of the city of London. Saunders, counsel in the _quo
warranto_, having been appointed chief justice, to decide in favor of the
sufficiency of the pleadings which he himself had drawn, the opinion of
the Court of King's Bench had been pronounced for the crown, "that all the
city charters were forfeited." Formal judgment was not yet entered on the
record, to give an opportunity to the mayor, aldermen and citizens, to
make their submission and to accept terms which might henceforth
annihilate their privileges and make them the slaves of the government.
They accordingly did prepare a petition to the king, imploring his
princely compassion and grace, which they presented to him at a council
held at Windsor on the 18th of June, 1683. The petition being read, they
were ordered to withdraw, and when they were again called in, the lord
keeper thus addressed them, disclosing somewhat indiscreetly the real
motives for the _quo warranto_: "My lord mayor, I am by the king's command
to tell you that he hath considered the humble petition of the city of
London, where so many of the present magistrates and other eminent
citizens are of undoubted loyalty and affection to his service; that for
their sakes his majesty will show the city all the favor they can
reasonably desire. It was very long before his majesty took resolutions
to question their charter; it was not the seditious discourses of the
coffee-houses, the treasonable pamphlets and libels daily published and
dispersed thence into all parts of the kingdom, the outrageous tumults in
the streets, nor the affronts to his courts of justice, could provoke him
to it. His majesty had patience until disorders were grown to that height,
that nothing less seemed to be designed than a ruin to the government both
of church and state." After pointing out the mischief of having factious
magistrates, he adds: "It was high time to put a stop to this growing
evil. This made it necessary for his majesty to inquire into the abuses of
franchises, that it might be in his power to make a regulation sufficient
to restore the city to its former good government." He then stated the
regulations to which they were required to assent, among which were--"That
no lord mayor, sheriff, or other officer should be appointed without the
king's consent; that the king might cashier them at his pleasure; that if
the king disapproved of the sheriffs elected, he might appoint others by
his own authority; and that the king should appoint all magistrates in the
city by his commission, instead of their being elected as hitherto."

The citizens refused to comply with these terms, and judgment was entered
up. Thus, on the most frivolous pretexts, and by a scandalous perversion
of the forms of law, was the city of London robbed of the free
institutions which it had enjoyed, and under which it had flourished for
many ages. The proceeding was less appalling to the public than the trial
and execution of eminent patriots, but was a more dangerous blow to civil
liberty. London remained disfranchised, and governed by the agents of the
crown, during the rest of this reign, and till the expected invasion of
the Prince of Orange near the conclusion of the next--when, too late, an
offer was made to restore its charters with all its ancient privileges.
Immediately after the revolution, they were irrevocably confirmed by act
of Parliament.

The lord keeper's conduct in this affair gave such high satisfaction at
court, that, as a reward for it, he was raised to the peerage by the title
of Baron Guilford. His brother says that he did not seek the elevation
from vanity, but that he might be protected against the attacks which
might hereafter be made upon him in the House of Commons. He obtained it
on the recommendation of the Duke of York, who overlooked his dislike of
Popery in respect of his steady hatred to public liberty.

To show his gratitude, the new peer directed similar proceedings to be
commenced against many other corporations, which ended in the forfeiture
or surrender of the charters of most of the towns in England in which the
liberal party had enjoyed an ascendancy.

Gilbert Burnet,[99] about this time appointed preacher at the rolls,
thought he had secured a protector in the lord keeper; but as soon as this
whig divine had incurred the displeasure of the court, his lordship wrote
to the master of the rolls that the king considered the chapel of the
rolls as one of his own chapels, and that Dr. Burnet must be dismissed as
one disaffected to the government. In consequence, he was obliged to go
beyond seas, and to remain in exile, till he returned with King William.

Soon after followed the disgraceful trials for high treason, which arose
out of the discovery of the rye-house plot. The lord keeper did not
preside at these; but having directed them--superintending the general
administration of justice, and especially bound to see that the
convictions had been obtained on legal evidence--he is deeply responsible
for the blood that was shed. He must have known that if, in point of law,
the witnesses made out a case to be submitted to the jury against Lord
Russell, that virtuous nobleman was really prosecuted for his support of
the exclusion bill; and he must have seen that against Algernon Sydney no
case had been made out to be submitted to the jury, as there was only one
witness that swore to any thing which could be construed into an overt act
of treason, and the attempt to supply the defect by a MS. containing a
speculative essay on government, which was found in his study, and had
been written many years before, was futile and flagitious. Yet did he sign
the death-warrants of both these men, whose names have been honored, while
his has been execrated in all succeeding times.

It is edifying and consolatory to think that he was outdone by his own
arts, and that the rest of his career was attended by almost constant
mortification, humiliation, and wretchedness. Saunders enjoyed the office
of chief justice of the king's bench only for a few months, being carried
off by an apoplexy soon after the decision of the great London _quo
warranto_ cause. An intrigue was immediately set on foot to procure the
appointment for Jeffreys, who had more than ever recommended himself to
the court by his zeal on the trial of Lord Russell, in which he had
eclipsed the attorney and solicitor general; and he was anxiously wanted
to preside at the trial of Sydney, against whom the case was known to be
so slender, but who was particularly obnoxious on account of his late
quarrel with the Duke of York, and his sworn enmity to despotism.[100]
The pretensions of Jeffreys were supported by Sunderland, probably out of
ill will to the lord keeper, who had intuitively shown a great jealousy of
the new favorite. But the proposal produced great opposition and
bickerings among different sections of courtiers. The lord keeper of
course resisted it _totis viribus_, representing to the king that the
office, according to ancient and salutary usage, ought to be offered to
the attorney and solicitor general, who had been irregularly passed over
on the appointment of the late chief justice, to gain an object of such
magnitude as the forfeiture of the city charters; that Saunders was a man
of immense learning, which countenanced _his_ sudden elevation; but that
Jeffreys, though gifted with a fluency of speech, was known to be unequal
to so high an office; and that the whole profession of the law, and the
public, would condemn an act so arbitrary and capricious. Charles was, or
pretended to be, impressed by these arguments, which he repeated to
Sunderland, and the office was kept vacant for three months after the
death of Saunders. But on the 29th of September, the lord keeper had the
mortification to put the great seal to the writ constituting Jeffreys
"chief justice of England," and on the first day of the following
Michaelmas term to make a speech, publicly congratulating him on his rise
to the supreme seat of criminal justice, so well merited by his learning,
his abilities, and his services.

What was worse, the new lord chief justice was not only sworn a privy
councillor, but, in a few weeks, was admitted into the cabinet, where he,
from the first, set himself to oppose the opinions, and to discredit the
reputation, of him who, he knew, had opposed his appointment, and whom
(his ambition being still unsatiated) he was resolved, in due time, to
supplant.

Jeffreys began with interfering very offensively in the appointment of
puisne judges, which of right belonged to the lord keeper. At first he was
contented with the reputation of power in this department.

He next resolved to make a judge, by his own authority, of a man almost as
worthless as himself. This was Sir Robert Wright, who had never had any
law, who had spent his patrimony in debauchery, and who, being in great
distress, had lately sworn a false affidavit to enable him to commit a
fraud upon his own mortgagee.[101]

Jeffreys was not satisfied with his triumph without proclaiming it to all
Westminster Hall. "Being there that same morning, while the Court of
Chancery was sitting, he beckoned to Wright to come to him, and giving him
a slap on the shoulder, and whispering in his ear, he flung him off,
holding out his arms towards the lord keeper. This was a public
declaration _that, in spite of that man above there, Wright should be a
judge_. His lordship saw all this as it was intended he should, and it
caused some melancholy." But he found it convenient to pocket the insult:
he put the great seal to Wright's patent, and assisted at the ceremony of
his installation. There is no trace of the lord keeper's speech on this
occasion, so that we do not know in what terms he complimented the new
judge on his profound skill in the law, his spotless integrity, and his
universal fitness to adorn the judgment seat.

When heated with liquor, Jeffreys could not now conceal his contempt for
the lord keeper, even in the king's presence. It is related that, upon the
hearing of a matter before the council, arising out of a controversy for
jurisdiction between two sets of magistrates, Guilford proposed some sort
of compromise between them, when the lord chief justice, "flaming drunk,"
came from the lower to the upper end of the board, and "talking and
staring like a madman," bitterly inveighed against "trimmers," and told
the king "he had _trimmers_ in his court, and he never would be easy till
all the _trimmers_ were sent about their business." "The lord keeper,
knowing that these darts were aimed at him,[102] moved the king that the
whole business should be referred to the lord chief justice, and that he
should make a report to his majesty in council of what should be fit to be
done." This was ordered, and Guilford seems to have entertained a hope
that Jeffreys, from the state of intoxication he was in, would entirely
forget the reference, and so might fall into disgrace.[103]

But the most serious difference between them in Charles's time was on the
return of Jeffreys from the northern circuit in the autumn of 1684, when,
backed by the Duke of York, he had a deliberate purpose of immediately
grasping the great seal. At a cabinet council, held on a Sunday evening,
he stood up, and addressing the king while he held in his hands the rolls
of the recusants in the north of England--"Sir," said he, "I have a
business to lay before your majesty which I took notice of in the north,
and which well deserves your majesty's royal commiseration. It is the case
of numberless members of your good subjects that are imprisoned for
recusancy:[104] I have the list of them here to justify what I say. They
are so many that the great jails cannot hold them without their lying one
upon another." After tropes and figures about "rotting and stinking in
prison," he concluded with a motion to his majesty "that he would, by his
pardon, discharge all the convictions for recusancy, and thereby restore
air and liberty to these poor men." This was a deep-laid scheme, for
besides pleasing the royal brothers, one of whom was a secret, and the
other an avowed Papist, he expected that Guilford must either be turned
out for refusing to put the great seal to the pardon, or that he would
make himself most obnoxious to the public, and afterwards to Parliament,
by compliance. A general silence prevailed, and the expectation was that
Halifax or Rochester, who were strong Protestants, would have stoutly
objected. The lord keeper, alarmed lest the motion should be carried, and
seeing the dilemma to which he might be reduced, plucked up courage and
said, "Sir, I humbly entreat your majesty that my lord chief justice may
declare whether all the persons named in these rolls are actually in
prison or not?" _Chief Justice._--"No fair man could suspect my meaning to
be that all these are actual prisoners; for all the jails in England would
not hold them. But if they are not in prison, their case is little
better; for they lie under sentence of commitment, and are obnoxious to be
taken up by every peevish sheriff or magistrate, and are made to redeem
their liberty with gross fees, which is a cruel oppression to them and
their families." _Lord Keeper._--"Sir, I beg your majesty will consider
what little reason there is to grant such a general pardon at this time.
For they are not all Roman Catholics that lie under sentence of recusancy,
but sectaries of all kinds and denominations; perhaps as many, or more,
who are all professed enemies to your majesty and your government in
church and state. They are a turbulent people, and always stirring up
sedition. What will they not do when your majesty gives them a discharge
at once? Is it not better that your enemies should live under some
disadvantages, and be obnoxious to your majesty's pleasure, so that, if
they are turbulent or troublesome, you may inflict the penalties of the
law upon them? If there be any Roman Catholics whom you wish to favor,
grant to them a particular and express pardon, but do not by a universal
measure set your enemies as well as your friends at ease. The ill uses
that would be made of such a step to the prejudice of your majesty's
interests and affairs are obvious and endless."[105] The king was much
struck with these observations, urged with a boldness so unusual in the
lord keeper. The other lords wondered, and the motion was dropped.

The lord keeper, not without reason, boasted of this as the most brilliant
passage of his life. When he came home at night, he broke out in
exclamations--"What can be their meaning? Are they all stark mad?" And
before he went to bed, as a memorial of his exploit, he wrote in his
almanack, opposite to the day of the month, "Motion _cui solus obstiti_."

By such an extraordinary exhibition of courage, to which he was driven by
the instinct of self-preservation, he escaped the peril which Jeffreys had
planned for him, and he retained the great seal till the king's death.

In the morning of Monday, the 2d of February, 1685, he was sent for to
Whitehall, by a messenger announcing that his majesty had had an
apoplectic seizure. According to the ancient custom and supposed law when
the sovereign is dangerously distempered, the Privy Council was
immediately assembled; and the lord keeper examined the king's
physicians.[106] "Their discourse ran upon indefinites--what they
observed, their method intended, and success hoped. He said to them, _that
these matters were little satisfactory to the council, unless they would
declare, in the main, what they judged of the king's case; whether his
majesty was like to recover or not_? But they would never be brought to
that; _all lay in hopes_."

With short intervals the council continued to sit day and night. After a
time, the physicians came into the council chamber, smiling, and saying
they had good news, for the king had a fever. _Lord Keeper._--"Gentlemen,
what do you mean? Can any thing be worse?" _First Physician._--"Now we
know what to do." _Lord Keeper._--"What is that?" _Second Physician._--"To
give him the cortex." The exhibition of Jesuits' bark was sanctioned by
the council, but proved fatal, and being continued, while the poor king
grew weaker and weaker, at the end of four days he expired. The lord
keeper and the council were kept in ignorance of the fact that Chiffinch
(accustomed to be employed on royal errands of a different sort) had been
sent for a Roman Catholic priest, to receive his confession and administer
the sacraments to him, when he had declined the spiritual assistance of a
bishop of the church of England.

The council was still sitting when the news was brought that Charles was
no more. After a short interval, James, who, leaving the death-bed of his
brother, had decently engaged in a devotional exercise in his own closet,
entered the apartment in which the councillors were assembled, and all
kneeling down, they saluted him as their sovereign. When he had seated
himself in the chair of state, and delivered his declaration, which, with
very gracious expressions, smacked of the arbitrary principles so soon
acted upon, Lord Guilford surrendered the great seal into his hands, and
again received it from him with the former title of lord keeper. James
would, no doubt, have been much better pleased to have transferred it to
Jeffreys; but it was his policy, at the commencement of his reign, to make
no change in the administration, and he desired all present to retain the
several charges which they held under his deceased brother, assuring them
that he earnestly wished to imitate the good and gracious sovereign whose
loss they deplored.

Jeffreys, though continued a member of the cabinet, was probably a good
deal disappointed, and he resolved to leave nothing undone to mortify the
man who stood between him and his object, and to strike him down as soon
as possible.

The first question upon which James consulted the council was respecting
the levying of the duties of customs and excise, which had been granted by
Parliament only during the life of the late king. The lord keeper
intimating a clear conviction that Parliament would continue the grant as
from the demise of the crown, recommended a proclamation requiring that
the duties should be collected and paid into the exchequer, and that the
officers should keep the product separate from other revenues till the
next session of Parliament, in order to be disposed of as his majesty and
the two houses should think fit. But the lord chief justice represented
this advice as low and trimming, and he moved that "his majesty should
cause his royal proclamation to issue, commanding all officers to collect,
and the subjects to pay, these duties for his majesty's use, as part of
the royal revenue." The lord keeper ventured humbly to ask his majesty to
consider whether such a proclamation would be for his service, as it might
give a handle to his majesty's enemies to say that his majesty, at the
very entrance upon his government, levied money of the subject without the
authority of Parliament. The chief justice's advice was far more
palatable. The proclamation which he recommended was therefore ordered to
be drawn up, and was immediately issued. The lord keeper had the baseness
to affix the great seal to this proclamation, thinking as he did of its
expediency and legality. But rather than resign or be turned out of his
office, he was ready to concur in any outrage on the constitution, or to
submit to any personal indignity.

A Parliament was found indispensable; and, counting on the very loyal
disposition manifested by the nation, writs for calling one were issued,
returnable the 19th of May.

As that day approached, the lord keeper began to write the speech which he
expected to deliver in the presence of the king to the two houses on their
assembling. He was much pleased with this performance, on which he had
taken uncommon pains, and when finished, he read it to his brother and his
officers, who highly applauded it. But what was his consternation when he
was told that he was not to be allowed to open his mouth upon the
occasion![107]

Parliament meeting, the course was adopted which has been followed ever
since. Instead of having on the first day of the session, before the
choice of a speaker by the Commons, one speech from the king, and another
from the lord chancellor or lord keeper, to explain the causes of the
summons, the Commons being sent for by the black rod, the lord keeper
merely desired them to retire to their own chamber and choose a speaker,
and to present him at an hour which was named, for his majesty's
approbation. The speaker being chosen and approved of, and having demanded
and obtained a recognition of the privileges of the Commons, on the
following day the king himself made a speech from the throne, and
immediately withdrew.

But this speech was not in modern fashion settled at the cabinet; nor was
it read the evening before at the Cockpit, or to the chief supporters of
the government in both houses at the dinner-table of the two leaders
respectively; nor was it to be treated as the speech of the minister. "At
least the lord keeper had no hand in it; for he was not so much as
consulted about either the matter or expressions the king intended to use,
as one might well judge by the unguarded tenor of it."

Yet he still was mean enough to cling to office, and to do what he could
for a government impatient to get rid of him. He had been very active in
the elections; and by his influence had procured the return of a good many
zealous church-and-king members. "And to make the attendance easy to these
gentlemen, whose concerns were in the country, he took divers of them to
rack and manger in his family, where they were entertained while the
Parliament sat." But nothing which he could do would mitigate the
hostility of those who had vowed his destruction.

At the meeting of Parliament, Jeffreys was made a peer, that he might have
the better opportunity to thwart and insult the lord keeper; although
there had been no previous instance of raising a common-law judge to the
peerage.

There were several appeals from decrees of the lord keeper speedily
brought to a hearing. "Jeffreys affected to let fly at them, to have it
thought that he was fitter to be chancellor." He attended, neglecting all
other business; and during the argument, and in giving his opinion, took
every opportunity of disparaging the lord keeper's law, preparatory to
moving reversals. He was particularly outrageous in the case of _Howard_
v. _The Duke of Norfolk_, being emboldened to talk confidently on matters
with which he was not much acquainted, by having to rest on the reputation
of Lord Nottingham. That great equity lawyer, contrary to the opinion of
the two chief justices and the chief baron, whom he had called in to
assist him, had held that an equitable estate tail might be created in a
term of years; but his successor had reversed his decree, and the decree
of reversal was now under appeal. "Lord Chief Justice Jeffreys, by means
of some encouragement he had met with, took upon him the part of slighting
and insulting his lordship on all occasions that proffered. And here he
had a rare opportunity; for, in his rude way of talking, and others of a
party after him, he battered the poor decree; not without the most
indecent affronts to his lordship that in such an assembly ever were
heard." The courtesy now prevailing between law lords of opposite
political parties was not then known between colleagues sitting in the
same cabinet; and the poor lord keeper was assailed by the coarsest
vituperation, and the most cutting ridicule. The second Earl of
Nottingham, son of the chancellor, "who hated him because he had
endeavored to detract from his father's memory," likewise took this
opportunity to attack him, and got together many instances of his ill
administration of justice, and greatly exposed him. He was not roused into
retaliation or resistance; and he contented himself with a dry legal
argument. The decree was reversed; and when he announced that the
_contents had it_, he must have felt as if he had been sounding his own
death knell. The lay lords who voted could have known nothing of the
merits of such a nice question; and must have been guided by favor or
enmity to the lord keeper or the lord chief justice. What rendered the
defeat and contemptuous usage the more galling was the presence of the
king; for James, like his brother, attended in the House of Lords when any
thing interesting was coming on; and walked about the house, or stood by
the fire, or sat in his chair of state or on the woolsack, as suited his
fancy.

"Having opened this scene," says Roger, "we are not to expect other than
opposition, contempt, and brutal usage, of that chief towards his lordship
while he lived."

There were few debates in the House of Lords during this short session;
but, even in going through the common forms of the House, Jeffreys found
opportunities publicly to testify his contempt for the lord keeper; and in
the cabinet, in discussing the dispensation to be granted to Catholic
officers to serve in the army, and other subjects, he constantly laid
traps for him, with a view of either making him obnoxious to the king, or
odious to the public--who considered him the author of every declaration
or dispensation which passed the great seal.

Sunderland and other members of the cabinet openly joined in this
persecution, and "he was little less than derided by them. Being soon to
be laid aside, he was not relied upon in any thing, but was truly a
seal-keeper rather than a minister of state, and kept on for despatch of
the formularies, rather than for advice or trust." Why did he not resign?
It is difficult to understand the reasoning of his brother, who thus
accounts for his continuing to bear such insults:--"His lordship was so
ill used at court by the Earl of Sunderland, Jeffreys, and their
sub-sycophants, that I am persuaded if he had had less pride of heart, he
had been tempted to have delivered up the seal in full health. But he
cared not to gratify, by that, such disingenuous enemies. He cared not to
humor these barkers, or to quit his place before he might do it with
safety to his dignity. He intended to stay till the king would bear him no
longer, and then make it his majesty's own act to remove him."

He felt keenly a sense of the insignificance and disfavor into which he
had fallen; and the anticipation of "the worse remaining behind," when he
was to be finally kicked out, preyed upon his spirits. No longer was he
ear-wigged by the Lord Cravens, who worship a favorite; no more did the
foreign ambassadors bow low when they thought that he observed them: his
levee was now deserted; he seemed to himself to discover a sneer on every
countenance at Whitehall; and he suspected that the bar, the officers of
the court, and the bystanders in chancery, looked at him as if they were
sure of his coming disgrace. To shade himself from observation, while he
sat on the bench he held a large nosegay before his face.

Dreadfully dejected, he lost his appetite and his strength. He could not
even get through the business of the court; and _remanets_ multiplying
upon him kept him awake at night, or haunted him in his sleep. He drooped
so much, that for some time he seemed quite heart-broken. At last, he had
an attack of fever, which confined him to his bed.

The coronation was approaching, and it was important that he should sit in
the "Court of Claims." Having recovered a little by the use of Jesuits'
bark, he presided there, though still extremely weak; and he walked at the
coronation "as a ghost with the visage of death upon him, such a sunk and
spiritless countenance he had."

While he was in this wretched state, news arrived that the Duke of
Monmouth had landed in the west of England and raised the standard of
rebellion. The Parliament, having come to a number of loyal votes, having
attainted the duke, and granted a supply, was adjourned, that the members
might assist in preserving tranquillity in their several districts.

The lord keeper talked of resigning, and wrote a letter to the Earl of
Rochester, to ask leave to go into the country for the recovery of his
health, saying, "I have put myself into the hands of a doctor, who assures
me of a speedy cure by entering into a course of physic." Leave was given,
and he proceeded to Wroxton, in Oxfordshire, the seat which belonged to
him in right of his wife.

Here he languished while the battle of Sedgemoor was fought--Monmouth,
after in vain trying to melt the heart of his obdurate uncle, was executed
on Tower Hill under his parliamentary attainder, and the inhuman Jeffreys,
armed with civil and military authority, set out on his celebrated
"campaign." Roger North would make us believe that the dying Guilford was
horrified by the effusion of blood which was now _incarnardining_ the
western counties by command of the lord general chief justice, and that he
actually interposed to stay it:--"Upon the news returned of his violent
proceedings, his lordship saw the king would be a great sufferer thereby,
and went directly to the king, and moved him to put a stop to the fury,
which was in no respect for his service; but in many respects for the
contrary. For though the executions were by law just, yet never were the
deluded people all capitally punished; and it would be accounted a carnage
and not law or justice; and thereupon orders went to mitigate the
proceeding. I am sure of his lordship's intercession to the king on this
occasion, being told it at the very time by himself." It is painful to
doubt the supposed exertion of mercy and firmness by the lord keeper; but
an attention to dates, of which this biographer is always so inconceivably
negligent, shows the story to be impossible. Jeffreys did not open his
campaign by the slaughter of the Lady Lisle, at Winchester, till the 27th
of August, and he carried it on with increased cruelty till the very end
of September. On the 5th of September died Lord Keeper Guilford, at
Wroxton, after having been for some weeks in a state of such debility and
exhaustion that, able only to attend to his spiritual concerns, he thought
no more of domestic treason or foreign levy than if he had already slept
in the grave. For a short time after his arrival there, he rallied, by the
use of mineral waters, but he soon had a relapse, and he could with
difficulty sign his will. He was peevish and fretful during his sickness,
but calmly met his end. "He advised his friends not to mourn for him, yet
commended an old maid-servant for her good will that said, '_As long as
there is life there is hope_.' At length, having strove a little to rise,
he said, '_It will not do_;' and then, with patience and resignation, lay
down for good and all, and expired."

He was buried in Wroxton Church, in a vault belonging to his wife's
family, the Earls of Down.

"He was a crafty and designing man," says Bishop Burnet. "He had no mind
to part with the great seal, and yet he saw he could not hold it without
an entire compliance with the pleasure of the court. Nothing but his
successor made him be remembered with regret. He had not the virtues of
his predecessor; but he had parts far beyond him. They were turned to
craft; so that whereas the former (Lord Nottingham) seemed to mean well
even when he did ill, this man was believed to mean ill even when he did
well." I accede to this character, with the exception of the estimate of
North's "parts," which I think are greatly overrated. He was sharp and
shrewd, but of no imagination, of no depth, of no grasp of intellect, any
more than generosity of sentiment. Cunning, industry, and opportunity may
make such a man at any time. A Nottingham does not arise above once in a
century.

Guilford had as much law as he could contain, but he was incapable of
taking an enlarged and commanding view of any subject. In equity, he did
nothing to rear up the system of which the foundations had been so
admirably laid by his predecessor. His industry was commendable; and I
think he may be fairly acquitted of corruption, notwithstanding his
indiscreet acceptance of a present of one thousand pounds from the six
clerks, when they had a dispute with the sixty, on which he was to
adjudicate. Where he was not under the apprehension of personal
responsibility, there was nothing which he would not say or do to exalt
the prerogative and please his patrons. I shall add only one instance. Sir
Thomas Armstrong was outlawed for high treason while beyond the seas
unless he surrendered within a year. Being sent over a prisoner from
Holland within a year, he insisted that he was entitled to a writ of error
to reverse the outlawry and to be admitted to make his defence; but the
lord keeper refused him his writ of error, first, on the pretence that
there was no fiat for it by the attorney general, and then, that he had no
right to reverse his outlawry, as he was present by compulsion. Thus the
unhappy victim was sent to instant execution without trial.

So zealous a conservative was Guilford, that "he thought the taking away
of the tenures" (_i. e._ the abolition of wardship and the other
oppressive feudal burdens introduced at the conquest) "a desperate wound
to the liberties of the people."

The court wags made great sport of him, the Earl of Sunderland taking the
lead, and giving out the signal, while Jeffreys was always ready to join
in the laugh. I may offer as an example "the story of the rhinoceros." My
lord keeper went one day into the city, accompanied by his brother Sir
Dudley, to see a rhinoceros of enormous size lately imported, and about to
be exhibited as a show.[108] Next morning, at Whitehall, a rumor was
industriously spread that the lord keeper had been riding on the
rhinoceros, "and soon after dinner some lords and others came to his
lordship to know the truth from himself; for the setters of the lie
affirmed it positively, as of their own knowledge. That did not give his
lordship much disturbance, for he expected no better from his adversaries.
But that his friends, intelligent persons, who must know him to be far
from guilty of any childish levity, should believe it, was what _roiled_
him extremely, and much more when they had the face to come to him to know
if it were true. So it passed; and the Earl of Sunderland, with Jeffreys
and others of that crew, never blushed at the lie of their own making, but
valued themselves upon it as a very good jest."

To try how far his compliance with the humors of the court would go, they
next persuaded his own brother-in-law (that he might not suspect the hoax)
to wait upon him, and in strict confidence, and with great seriousness, to
advise him to keep a mistress, "otherwise he would lose all his interest
with the king; for it was well understood that he was ill looked upon for
want of doing so, because he seemed continually to reprehend them by not
falling in with the general custom; and the messenger added, that if his
lordship pleased he would help him to one." He declined the offer--with
much politeness, however, lest he should give offence. But with his
familiar friends "he made wonderfully merry with this state policy,
especially the procuring part, and said, that if he were to entertain a
madam, it would be one of his own choosing, and not one of their stale
trumpery."

Although he never aimed at oratory, it is said that he meditated a
"history of his own times." He might have transmitted to us many curious
anecdotes, but the performance must have been without literary merit; for
some of his notes which he had written as materials are in the most
wretched style, and show that he was unacquainted with the first
principles of English composition, and even with the common rules of
grammar. He did publish two or three short tracts "on music" and other
subjects, which were soon forgotten. He was well versed in music,
conversed with Sir Peter Lely about painting, speculated with natural
philosophers on the use of the bladder of fishes, and learned several of
the continental languages; but he seems never to have looked into a
classical writer after he left college, and to have had the same taste for
the _belles lettres_ as his brother Roger, who, placing them all in the
same category, talks with equal contempt of "departed quacks, _poets_, and
almanack makers." Although his two immediate predecessors were libelled
and lauded by popular verses in the mouths of every one, I can find no
allusion in any fine writer either of the court or country party to North;
and it may be doubtful whether he knew anything of the works of Butler, of
Dryden, of Waller, or of Cowley, beyond the snatches of them he may have
heard repeated in the merry circle at Whitehall.

He lived very hospitably, receiving those who retailed the gossip of the
day in his house in Great Queen Street, Lincoln's Inn Fields, then the
fashionable quarter of the town for the great nobility as well as for
eminent lawyers. The nobility and chief gentry coming to London frequently
dined with him. The dinner was at a very early hour, and did not last
long. "After a solemn service of tea in a withdrawing room, the company
usually left him." He had a court room fitted up on the ground floor,
which he then entered, and there he continued hearing causes and
exceptions, sometimes to what was considered a late hour. About eight
o'clock came supper, which he took with a few private friends, and
relished as the most agreeable and refreshing meal of the day.

In the vacations, when he could be spared from London, he retired to his
seat at Wroxton. For some years he likewise rented a villa at Hammersmith,
but this he gave up soon after his wife's death. He had the misfortune to
lose her after they had been married only a few years. She seems to have
been a very amiable person. She found out when her husband had any trouble
upon his spirits, and she would say, "Come, Sir Francis, (as she always
styled him,) you shall not think; we must talk and be merry, and you shall
not look on the fire as you do. I know something troubles you; and I will
not have it so." He would never marry again, which in his last illness he
repented, for "he fancied that in the night human heat was friendly."

He was extremely amiable in all the relations of domestic life. Nothing
can be more touching than the account we have of the warm and steady
affection subsisting between him and his brother, who survived to be his
biographer.

The lord keeper was a little but handsome man, and is said to have had "an
ingenuous aspect."

He left behind him Francis, his son and heir, the second Baron Guilford,
father of Francis, the third Baron Guilford, on whom descended the barony
of North, by failure of the elder branch of the family, and who, in 1752,
was created Earl of Guilford, and was the father of Lord North, the prime
minister, so celebrated for his polished oratory, his refined wit, and
amiable manners.[109]

When we estimate what the lord keeper achieved, we should bear in mind
that he died at _forty-eight_, an age considerably more advanced than that
reached by his immediate successor; yet under that at which other lord
chancellors and lord keepers began to look for promotion. He was in truth
solicitor general at _thirty-four_, attorney general at _thirty-seven_,
chief justice of the Common Pleas at _thirty-eight_, and lord keeper and a
peer at _forty-five_. It is probably well for his memory that his career
was not prolonged. He might have made a respectable judge when the
constitution was settled; but he was wholly unfit for the times in which
he lived.

I ought not to conclude this memoir without acknowledging my obligations
to "Roger North's Life of the Lord Keeper;" which, like "Boswell's Life of
Johnson," interests us highly, without giving us a very exalted notion of
the author. Notwithstanding its extravagant praise of the hero of the
tale, its inaccuracies, and its want of method, it is a most valuable
piece of biography, and with Roger's lives of his brothers "Dudley and
John," and his "Examen," ought to be studied by every one who wishes to
understand the history and the manners of the reign of Charles II.




CHAPTER XIV.

EDMUND SAUNDERS.


There never was a more flagrant abuse of the prerogative of the crown than
the appointment of a chief justice of the King's Bench for the undisguised
purpose of giving judgment for the destruction of the charters of the city
of London, as a step to the establishment of despotism over the land. Sir
Edmund Saunders accomplished this task effectually, and would, without
scruple or remorse, have given any other illegal judgment required of him
by a corrupt government. Yet I feel inclined to treat his failings with
lenience, and those who become acquainted with his character are apt to
have a lurking kindness for him. From the disadvantages of his birth and
breeding, he had little moral discipline; and he not only showed wonderful
talents, but very amiable social qualities. His rise was most
extraordinary, and he may be considered as our _legal Whittington_.

"He was at first," says Roger North, "no better than a poor beggar-boy, if
not a parish foundling, without known parents or relations." There can be
no doubt that, when a boy, he was discovered wandering about the streets
of London in the most destitute condition--penniless, friendless, without
having learned any trade, without having received any education. But
although his parentage was unknown to the contemporaries with whom he
lived when he had advanced himself in the world, recent inquiries have
ascertained that he was born in the parish of Barnwood, close by the city
of Gloucester; and his father, who was above the lowest rank of life,
died when he was an infant, and that his mother took for her second
husband a man of the name of Gregory, to whom she bore several children.
We know nothing more respecting him, with certainty, till he presented
himself in the metropolis; and we are left to imagine that he might have
been driven to roam abroad for subsistence, by reason of his mother's
cottage being levelled to the ground during the siege of Gloucester; or
that, being hardly used by his step-father, he had run away, and had
accompanied the broad-wheeled wagon to London, where he had heard that
riches and plenty abounded.

The little fugitive found shelter in Clement's Inn, where "he lived by
obsequiousness, and courting the attorneys' clerks for scraps." He began
as an errand boy, and his remarkable diligence and obliging disposition
created a general interest in his favor. Expressing an eager ambition to
learn to write, one of the attorneys of the Inn got a board knocked up at
a window on the top of a staircase. This was his desk, and, sitting here,
he not only learned the _running hand_ of the time, but _court hand_,
_black letter_, and _engrossing_, and made himself "an expert entering
clerk." In winter, while at work, he covered his shoulders with a blanket,
tied hay bands round his legs, and made the blood circulate through his
fingers by rubbing them when they grew stiff. His next step was to copy
deeds and law papers, at so much a folio or page, by which he was enabled
to procure for himself wholesome food and decent clothes. Meanwhile he not
only picked up a knowledge of Norman French and law Latin, but, by
borrowing books, acquired a deep insight into the principles of
conveyancing and special pleading. By and by the friends he had acquired
enabled him to take a small chamber, to furnish it, and to begin business
on his own account as a conveyancer and special pleader. But it was in the
latter department that he took greatest delight and was the most
skilful--insomuch that he gained the reputation of being familiarly
acquainted with all its mysteries; and although the order of "special
pleaders under the bar" was not established till many years after, he was
much resorted to by attorneys who wished by a sham plea to get over the
term, or by a subtle replication to take an undue advantage of the
defendant.

It has been untruly said of him, as of Jeffreys, that he began to practise
as a barrister without ever having been called to the bar. In truth, the
attorneys who consulted him having observed to him that they should like
to have his assistance to maintain in court the astute devices which he
recommended, and which duller men did not comprehend, or were ashamed of,
he rather unwillingly listened to their suggestion that he should be
entered of an Inn of Court, for he never cared much for great profits or
high offices; and having money enough to buy beer and tobacco, the only
luxuries in which he wished to indulge, he would have preferred to
continue the huggermugger life which he now led. He was domesticated in
the family of a tailor in Butcher Row, near Temple Bar, and was supposed
to be rather too intimate with the mistress of the house. However, without
giving up his lodging here, to which he resolutely stuck till he was made
lord chief justice of England, he was prevailed upon to enter as a member
of the Middle Temple. Accordingly, on the 4th of July, 1660, he was
admitted there by the description of "Mr. Edward Saunders, of the county
of the city of Gloucester, gentleman." The omission to mention the name
of his father might have given rise to the report that he was a foundling;
but a statement of parentage on such occasions, though usual, was not
absolutely required, as it now is.

He henceforth attended "moots," and excited great admiration by his
readiness in putting cases and taking of objections. By his extraordinary
good humor and joviality, he likewise stood high in the favor of his
brother templars. The term of study was then seven years, liable to be
abridged on proof of proficiency; and the benchers of the Middle Temple
had the discernment and the liberality to call Saunders to the bar when
his name had been on their books little more than four years.

We have a striking proof of the rapidity with which he rushed into full
business. He compiled reports of the decisions of the Court of King's
Bench, beginning with Michaelmas term, 18 Charles II., A. D. 1666, when he
had only been two years at the bar. These he continued till Easter term,
24 Charles II., A. D. 1672. They contain all the cases of the slightest
importance which came before the court during that period; and he was
counsel in every one of them.

His "hold of business" appears the more wonderful when we consider that
his _liaison_ with the tailor's wife was well known, and might have been
expected to damage him even in those profligate times; and that he
occasionally indulged to great excess in drinking, so that he must often
have come into court very little acquainted with his "breviat," and must
have trusted to his quickness in finding out the questions to be argued,
and to his storehouses of learning for the apposite authorities.

But when we peruse his "reports," the mystery is solved, There is no such
treat for a common lawyer. Lord Mansfield called him the "Terence of
reporters," and he certainly supports the forensic dialogue with exquisite
art, displaying infinite skill himself in the points which he makes, and
the manner in which he defends them; doing ample justice at the same time
to the ingenuity and learning of his antagonist. Considering the barbarous
dialect in which he wrote, (for the Norman French was restored with
Charles II.,) it is marvellous to observe what a clear, terse, and
epigrammatic style he uses on the most abstruse juridical topics.

He labored under the imputation of being fond of sharp practice, and he
was several times rebuked by the court for being "_trop subtile_," or
"going too near the wind;" but he was said by his admirers to be fond of
his craft only _in meliori sensu_, or in the good sense of the word, and
that, in entrapping the opposite party, he was actuated by a love of fun
rather than a love of fraud. Thus is he characterized, as a practitioner,
by Roger North:--

"Wit and repartee in an affected rusticity were natural to him. He was
ever ready, and never at a loss, and none came so near as he to be a match
for Serjeant Maynard. His great dexterity was in the art of special
pleading, and he would lay snares that often caught his superiors, who
were not aware of his traps. And he was so fond of success for his clients
that, rather than fail, he would set the court hard with a trick; for
which he met sometimes with a reprimand, which he would wittily ward off,
so that no one was much offended with him. But Hale could not bear his
irregularity of life; and for that, and suspicion of his tricks, used to
bear hard upon him in the court. But no ill usage from the bench was too
hard for his hold of business, being such as scarce any could do but
himself."

He did not, like Scroggs and Jeffreys, intrigue for advancement. He
neither sought favor with the popular leaders in the city, nor tried to be
introduced into Chiffinch's "spie office" at Whitehall. "In no time did he
lean to faction, but did his business without offence to any. He put off
officious talk of government and politics with jests, and so made his wit
a catholicon or shield to cover all his weak places and infirmities." He
was in the habit of laughing both at Cavaliers and Roundheads; and, though
nothing of a Puritan himself, the semi-Popish high-churchmen were often
the objects of his satire.

His professional, or rather his special pleading, reputation forced on him
the advancement which he did not covet. Towards the end of the reign of
Charles II., when the courts of justice were turned into instruments of
tyranny, (or, as it was mildly said, "the court fell into a steady course
of using the law against all kinds of offenders,") Saunders had a general
retainer from the crown, and was specially employed in drawing indictments
against Whigs, and _quo warrantos_ against whiggish corporations. In crown
cases he really considered the king as his client, and was as eager to
gain the day for him, by all sorts of manoeuvres, as he had ever been for
a roguish Clement's Inn attorney. He it was that suggested the mode of
proceeding against Lord Shaftesbury for high treason; on his
recommendation the experiment was made of examining the witnesses before
the grand jury in open court, and he suggested the subtlety that "the
usual secresy observed being for the king's benefit, it might be waived by
the king at his pleasure." When the important day arrived, he himself
interrogated very artfully Mr. Blathwayt, the clerk of the council, who
was called to produce the papers which had been seized at Lord
Shaftesbury's house in Aldersgate street, and gave a treasonable tinge to
all that passed. The _ignoramus_ of his indictment must have been a heavy
disappointment to him; but the effort which he made gave high satisfaction
to the king, who knighted him on the occasion, and from that time looked
forward to him as a worthy chief justice.

Upon the dissolution of the Oxford Parliament and the rout of the Whig
party, it being resolved to hang Fitzharris, Saunders argued with uncommon
zeal against the prisoner's plea, that there was an impeachment depending
for the same offence, and concluded his legal argument in a manner which
seems to us very inconsistent with the calmness of a dry legal
argument--"Let him plead guilty or not guilty; I rather hope that he is
not guilty than he is guilty; but if he be guilty, it is the most horrid,
venomous treason ever spread abroad in any age, and for that reason your
lordships will not give countenance to any delay."

I find him several times retained as counsel against the crown; but upon
these occasions the government wished for an acquittal. He defended the
persons who were prosecuted for attempting to throw discredit on the
Popish Plot, he was assigned as one of the counsel for Lord Viscount
Stafford, and he supported the application made by the Earl of Danby to be
discharged out of custody. On this last occasion he got into a violent
altercation with Lord Chief Justice Pemberton. The report says that "Mr.
Saunders had hardly begun to speak when the Lord Chief Justice Pemberton
did reprimand the said Mr. Saunders for having offered to impose upon the
court. To all which Mr. Saunders replied, that he humbly begged his
lordship's pardon, but he did believe that the rest of his brethren
understood the matter as he did." The Earl of Danby supported this
statement, and Saunders had a complete triumph over the chief justice.

Pemberton was soon removed from the office of chief justice of the King's
Bench, and Saunders sat in his place.

In spite of the victory which the king had gained over the Whigs at the
dissolution of his last Parliament, he found one obstacle remain to the
perpetuation of his despotic sway in the franchises of the city of London.
The citizens (among whom were then included all the great merchants and
some of the nobility and gentry) were still empowered to elect their own
magistrates; they were entitled to hold public meetings; and they could
rely upon the pure administration of justice by impartial juries, should
they be prosecuted by the government. The attorney and solicitor general,
being consulted, acknowledged that it passed their skill to find a remedy;
but a case being laid before Saunders, he advised that something should be
discovered which might be set up as a forfeiture of the city charters, and
that a _quo warranto_ should be brought against the citizens, calling upon
them to show by what authority they presumed to act as a corporation.
Nothing bearing the color even of irregularity could be suggested against
them, except that, on the rebuilding and enlarging of the markets after
the great fire, a by-law had been made, requiring those who exposed cattle
and goods to contribute to the expense of the improvements by the payment
of a small toll; and that the lord mayor, aldermen, and commonalty of the
city had, in the year 1679, presented a petition to the king lamenting the
prorogation of Parliament in the following terms: "Your petitioners are
greatly surprised at the late prorogation, whereby the prosecution of the
public justice of the kingdom, and the making of necessary provisions for
the preservation of your majesty and your Protestant subjects, have
received interruption."

Saunders allowed that these grounds of forfeiture were rather scanty, but
undertook to make out the by-law to be the usurpation of a power to impose
taxes without authority of Parliament, and the petition a seditious
interference with the just prerogative of the crown.[110]

Accordingly, the _quo warranto_ was sued out, and, to the plea setting
forth the charters under which the citizens of London exercised their
privileges as a corporation, he drew an ingenious replication, averring
that the citizens had forfeited their charters by usurping a power to
impose taxes without authority of Parliament, and by seditiously
interfering with the just prerogative of the crown. The written pleadings
ended in a demurrer, by which the sufficiency of the replication was
referred, as a question of law, to the judgment of the Court of King's
Bench.

Saunders was preparing himself to argue the case as counsel for the crown,
when, to his utter astonishment, he received a letter from the lord keeper
announcing his majesty's pleasure that he should be chief justice. He not
only never had intrigued for the office, but his appointment to it had
never entered his imagination; and he declared, probably with sincerity,
that he would much sooner have remained at the bar, as he doubted whether
he could continue to live with the tailor in Butcher Row, and he was
afraid that all his favorite habits would be dislocated. This arrangement
must have been suggested by cunning lawyers, who were distrustful of
Pemberton, and were sure that Saunders might be relied upon. But Roger
North ascribed it to Charles himself; not attempting, however, to disguise
the corrupt motive for it. "The king," says he, "observing him to be of a
free disposition, loyal, friendly, and without greediness or guile,
thought of him to be chief justice of the King's Bench _at that nice
time_. And the ministry could not but approve of it. So great a weight was
then at stake as could not be trusted to men of doubtful principles, or
such as any thing might tempt to desert them."

On the 23d of January, being the first day of Hilary term, 1683, Sir
Edmund Saunders appeared at the bar of the Court of Chancery, in obedience
to a writ requiring him to take upon himself the degree of serjeant at
law, and distributed the usual number of gold rings, of the accustomed
weight and fineness, with the courtly motto, "_Principi sic placuit_." He
then had his coif put on, and proceeded to the bar of the Common Pleas,
where he went through the form of pleading a sham cause as a serjeant.
Next he was marched to the bar of the King's Bench, where he saw the lord
keeper on the bench, who made him a flowery oration, pretending "that Sir
Francis Pemberton, at his own request, had been allowed to resign the
office of chief justice of that court, and that his majesty, looking only
to the good of his subjects, had selected as a successor him who was
allowed to be the fittest, not only for learning, but for every other
qualification." The new chief justice, who often expressed a sincere
dislike of _palaver_, contented himself with repeating the motto on his
rings, "_Principi sic placuit_;" and having taken the oaths, was placed on
the bench, and at once began the business of the court.

In a few days afterwards came on to be argued the great case of _The King_
v. _the Mayor and Commonalty of the City of London_. Fitch, the solicitor
general, appeared for the crown; and Treby, the recorder of London, for
the defendants. The former was heard very favorably; but the latter having
contended that, even if the by-law and the petition were illegal, they
must be considered only as the acts of the individuals who had concurred
in them, and could not affect the privileges of the body corporate,--an
_ens legis_, without a soul, and without the capacity of sinning,--Lord
Chief Justice Saunders exclaimed,--

"According to your notion, never was one corporate act done by them;
certainly, whatsoever the Common Council does, binds the whole; otherwise
it is impossible for you to do any corporate act; for you never do, and
never can, convene all the citizens. Then you say your petition is no
reflection on the king, but it says that by the prorogation public justice
was interrupted. If so, by whom was public justice interrupted? Why, by
the king! And is it no reflection on the king that, instead of
distributing justice to his people, he prevents them from obtaining
justice? You must allow that the accusation is either true or false. But,
supposing it true that the king did amiss in prorogating the Parliament,
the Common Council of London, neither by charter nor prescription, had any
right to control him. If the matter were not true, (as it is not,) the
petition is a mere calumny. But if you could justify the presenting of the
petition, how can you justify the printing of it, whereby the mayor,
aldermen, and citizens of London do let all the nation know that the king,
by the prorogation of Parliament, hath given the public justice of the
nation an interruption? Pray, by what law, or custom, or charter, is this
privilege of censure exercised? You stand forth as 'chartered libertines.'
As for the _impeccability_ of the corporation, and your doctrine that
nothing which it does can affect its being, strange would be the result if
that which the corporation does is not the act of the corporation, and if,
the act being unlawful and wicked, the corporation shall be dispunishable.
I tell you, I deliver no opinion now; I only mention some points worthy of
consideration. Let the case be argued again next term."

In the ensuing term the case was again argued by Sawyer, the attorney
general, for the crown, and Pollexfen for the city, when Lord Chief
Justice Saunders said, "We shall take time to be advised of our opinion,
but I cannot help now saying what a grievous thing it would be if a
corporation cannot be forfeited or dissolved for any crime whatsoever.
Then it is plain that you oust the king of his _quo warranto_, and that,
as many corporations as there are, so many independent commonwealths are
established in England. We shall look into the precedents, and give
judgment next term."

When next term arrived, the Lord Chief Justice Saunders was on his
death-bed. His course of life was so different from what it had been, and
his diet and exercise so changed, that the constitution of his body could
not sustain it, and he fell into an apoplexy and palsy from which he never
recovered. But before his illness he had secured the votes of his
brethren.

The judgment of the court was pronounced by Mr. Justice Jones,[111] the
senior puisne judge, who said,--

"Several times have we met and had conference about this matter, and we
have waited on my Lord Saunders during his sickness often; and upon
deliberation, we are unanimously of opinion that a corporation aggregate,
such as the city of London, may be forfeited and seized into the king's
hands, on a breach of the trust reposed in it for the good government of
the king's subjects; that to assume the power of making bylaws to levy
money is a just cause of forfeiture; and that the petition in the
pleadings mentioned is so scandalous to the king and his government that
it is a just cause of forfeiture. Therefore, this court doth award that
the liberties and franchises of the city of London be seized into the
king's hand."

This judgment was considered a prodigious triumph, but it led directly to
the misgovernment which in little more than five years brought about the
Revolution and the establishment of a new dynasty. To guard against
similar attempts in all time to come, the charters, liberties, and customs
of the city of London were then confirmed, and for ever established, by
act of Parliament.

Saunders was chief justice so short a time, and this was so completely
occupied with the great _Quo Warranto_ case, that I have little more to
say of him as a judge. We are told that "while he sat in the Court of
King's Bench he gave the rule to the general satisfaction of the lawyers."

We have the account of only one trial before him at _nisi prius_, that of
_Pilkington, Lord Grey de Werke, and others_, for a riot. Before the city
of London was taken by a regular siege, an attempt had been made upon it
by a _coup de main_. The scheme was to prevent the regular election of
sheriffs, and to force upon the city the two court candidates, who had
only a small minority of electors in their favor. In spite of violence
used on their behalf, the poll was going in favor of the liberal
candidates, when the lord mayor, who had been gained over by the
government, pretended to adjourn the election to a future day. The
existing sheriffs, who were the proper officers to preside, continued the
poll, and declared the liberal candidates duly elected. Nevertheless, the
court candidates were sworn in as sheriffs, and those who had insisted on
continuing the election after the pretended adjournment by the lord mayor
were prosecuted for a riot.[112] They pleaded not guilty, and a jury to
try them having been summoned by the new sheriffs, the trial came on at
Guildhall before Lord Chief Justice Saunders. He was then much enfeebled
in health, and the excitement produced by it was supposed to have been the
cause of the fatal malady by which he was struck a few days after.

The jury being called, the counsel for the defendants put in _a challenge
to the array_, on the ground that the supposed sheriffs, by whom the jury
had been returned, were not the lawful sheriffs of the city of London, and
had an interest in the question.

_L. C. J. Saunders._--"Gentlemen, I am sorry you should have so bad an
opinion of me, and think me so little of a lawyer, as not to know that
this is but trifling, and has nothing in it. Pray, gentlemen, do not put
these things upon me." _Mr. Thompson._--"I desire it may be read, my
lord." _L. C. J. Saunders._--"You would not have done this before another
judge; you would not have done it if Sir Matthew Hale had been here. There
is no law in it." _Mr. Thompson._--"We desire it may be read." _L. C. J.
Saunders._--"This is only to tickle the people." The challenge, however,
was read. _Jeffreys._--"Here is a tale of a tub indeed!" _L. C. J.
Saunders._--"Ay, it is nothing else, and I wonder that lawyers should put
such a thing upon me." _Mr. Thompson._--"My lord, we desire this challenge
should be allowed." _L. C. J. Saunders._--"No, indeed, won't I. There is
no color for it." _Mr. Thompson._--"My lord, is the fact true or false? If
it be insufficient in point of law, let them demur." _Jeffreys._--"'Robin
Hood on Greendale stood'!!! I pray for the king that it may be overruled."
_Mr. Thompson._--"My lord, I say where a sheriff is interested in point of
title, he is no person in law to return a jury. The very title to the
office is here in question." _L. C. J. Saunders._--"Mr. Thompson, methinks
you have found out an invention, that the king should never have power to
try it even so long as the world stands. Who would you have the process go
to?" _Mr. Thompson._--"To the coroner." _L. C. J. Saunders._--"My speech
is but bad; let me know what objection is made, and if I can but retain it
in my memory, I don't question but to give you satisfaction. The sheriffs
who returned the jury are sheriffs _de facto_, and their title cannot thus
be inquired into. Wherever the defendant thinks it may go hard with him,
are we to have a trial whether the sheriffs be sheriffs or no? What you
are doing may be done in every cause that may be trying." _Mr.
Thompson._--"My lord, we pray a bill of exceptions." _Jeffreys._--"This
discourse is only for discourse sake. Swear the jury." _L. C. J.
Saunders._--"Ay, swear the jury."

So far, he was right in point of law; but, when the trial proceeded upon
the merits, to suit the purposes of the government and to obtain a
conviction he laid down doctrines which he must well have known to be
indefensible respecting the power of the lord mayor to interrupt the poll
by an adjournment, and the supposed offence of the electors in still
continuing the election, they believing that they were exercising a lawful
franchise. Finally, in summing up to the jury, he observed,--

"But they pretend that the sheriffs were the men, and that the lord mayor
was nobody; that shows that it was somewhat of the Commonwealth seed that
was like to grow up among the good corn." [Here the report says, _the
people hummed and interrupted my lord_. He thus continued.] "Pray,
gentlemen, that is a very indecent thing; you put an indignity upon the
king. Pray, gentlemen, forbear; such demeanor does not become a court of
justice. When things were topsy turvy I can't tell what was done, and I
would be loth to have it raked up now. These defendants tell you that they
believed they were acting according to law; but ignorance of the law is
now no excuse, and you will consider whether they did not in a tumultuary
way make a riot to set up a magistracy by the power of the people?
Gentlemen, it hath been a long trial, and it may be I have not taken it
well; my memory is bad, and I am but weak. I don't question but your
memories are better than mine. Consider your verdict, and find as many
guilty as you think fit."

The jury having been carefully packed, the defendants were all found
guilty, and they were heavily fined; but after the Revolution this
judgment was reversed by the legislature.

During Lord Chief Justice Saunders's last illness, the Ryehouse Plot was
discovered, and it was a heavy disappointment to the government that no
further aid could be expected from him in the measures still contemplated
for cutting off the Whig leaders and depressing the Whig party. His
hopeless condition being ascertained, he was deserted and neglected by all
his Whitehall patrons, who had lately been so attentive to him, and he
received kindness only from humble dependents and some young lawyers, who,
notwithstanding all his faults, had been attached to him from his singular
good humor.

A few minutes after ten o'clock in the forenoon of Tuesday, the 19th of
June, 1683, he expired in a house at Parson's Green, to which he had
unwillingly transferred himself from Butcher Row when promoted to be chief
justice. His exact age was not known, but he was not supposed to be much
turned of fifty, although a stranger who saw him for the first time would
have taken him to be considerably more advanced in life. Of his
appearance, his manners, and his habits, we have, from one who knew him
intimately, the following graphic account, which it would be a sin to
abridge or to alter,--

"As to his person, he was very corpulent and beastly--a mere lump of
morbid flesh. He used to say, 'by his _troggs_, (such a humorous way of
talking he affected,) none could say he wanted issue of his body, for he
had nine in his back.' He was a fetid mass that offended his neighbors at
the bar in the sharpest degree. Those whose ill fortune it was to stand
near him were confessors, and in summer time almost martyrs. This hateful
decay of his carcass came upon him by continual sottishness; for, to say
nothing of brandy, he was seldom without a pot of ale at his nose or near
him. That exercise was all he used; the rest of his life was sitting at
his desk or piping at home; and that _home_ was a tailor's house, in
Butcher Row, called his lodging, and the man's wife was his nurse or
worse; but by virtue of his money, of which he made little account, though
he got a great deal, he soon became master of the family; and being no
changeling, he never removed, but was true to his friends and they to him
to the last hour of his life. With all this, he had a goodness of nature
and disposition in so great a degree that he may be deservedly styled a
_philanthrope_. He was a very Silenus to the boys, as in this place I may
term the students of the law, to make them merry whenever they had a mind
to it. He had nothing of rigid or austere in him. If any near him at the
bar grumbled at his stench, he ever converted the complaint into content
and laughing with the abundance of his wit. As to his ordinary dealing, he
was as honest as the driven snow was white; and why not, having no regard
for money or desire to be rich? And for good nature and condescension,
there was not his fellow. I have seen him, for hours and half hours
together, before the court sat, stand at the bar, with an audience of
students over against him, putting of cases, and debating so as suited
their capacities and encouraged their industry. And so in the temple, he
seldom moved without a parcel of youths hanging about him, and he merry
and jesting with them. Once, after he was in the king's business, he dined
with the lord keeper, and there he showed another qualification he had
acquired, and that was to play jigs upon a harpsichord, having taught
himself with the opportunity of an old virginal of his landlady's; but in
such a manner, not for defect but figure, as to see him was a jest."

His Reports are entertaining as well as instructive.[113] Notwithstanding
his carelessness about money, he left considerable property behind him.




CHAPTER XV.

GEORGE JEFFREYS.[114]


George Jeffreys was a younger son of John Jeffreys, Esq., of Acton, near
Wrexham, in Denbighshire, a gentleman of a respectable Welsh family, and
of small fortune. His mother was a daughter of Sir Thomas Ireland, Knight,
of the County Palatine of Lancaster. Never was child so unlike parents;
for they were both quiet, sedate, thrifty, unambitious persons, who
aspired not higher than to be well reputed in the parish in which they
lived, and decently to rear their numerous offspring. Some imputed to the
father a niggardly and covetous disposition; but he appears only to have
exercised a becoming economy, and to have lived at home with his consort
in peace and happiness till he was made more anxious than pleased by the
irregular advancement of his boy George. It is said that he had an early
presentiment that this son would come to a violent end; and was
particularly desirous that he should be brought up to some steady trade,
in which he might be secured from temptation and peril.

He was born in his father's lowly dwelling at Acton in the year 1648. He
showed, from early infancy, the lively parts, the active temperament, the
outward good humor, and the overbearing disposition which distinguished
him through life. He acquired an ascendancy among his companions in his
native village by coaxing some and intimidating others, and making those
most opposed to each other believe that he favored both. At marbles and
leap-frog he was known to take undue advantages; and nevertheless, he
contrived, notwithstanding secret murmurs, to be acknowledged as "master
of the revels."

While still young, he was put to the free school at the town of
Shrewsbury, which was then considered a sort of metropolis for North
Wales. Here he continued for two or three years; but we have no account
how he demeaned himself. At the end of this time his father, though
resolved to bind him apprentice to a shopkeeper in Wales, sent him for a
short time to St. Paul's School, in the city of London. The sight of the
metropolis had a most extraordinary effect upon the mind of this ardent
youth, and exceedingly disgusted him with the notion of returning into
Denbighshire, to pass his life in a small provincial town as a mercer. On
the first Sunday in every term he saw the judges and the serjeants come in
grand procession to St. Paul's Cathedral, and afterwards go to dine with
the lord mayor--appearing little inferior to this great sovereign of the
city in power and splendor. He heard that some of them had been poor boys
like himself, who had pushed themselves on without fortune or friends; and
though he was not so presumptuous as to hope, like another Whittington, to
rise to be lord mayor, he was resolved that he would be lord chief justice
or lord chancellor.

Now it was that he acquired whatever scholarship he ever possessed.
Jeffreys applied with considerable diligence to Greek and Latin, though
occasionally flogged for idleness and insolence. He at last ventured to
disclose his scheme of becoming a great lawyer to his father, who
violently opposed it, as wild and romantic and impossible, and who
inwardly dreaded that, from involving him in want and distress, it might
lead to some fatal catastrophe. He wrote back to his son, pointing out the
inability of the family to give him a university education, or to maintain
him at the inns of court till he should have a chance of getting into
practice--his utter want of connections in London, and the hopelessness of
his entering into a contest in an overstocked profession with so many who
had the advantage of superior education, wealth, and patronage. Although
the aspirant professed himself unconvinced by these arguments, and still
tried to show the certainty of his success at the bar, he must have stood
a crop-eared apprentice behind a counter in Denbigh, Ruthyn, or Flint, if
it had not been for his maternal grandmother, who was pleased to see the
blood of the Irelands break out, and who, having a small jointure, offered
to contribute a part of it for his support. The university was still
beyond their means; but it was thought this might be better dispensed with
if he should be for some time at one of the great schools of royal
foundation, where he might form acquaintances afterwards to be useful to
him. The father reluctantly consented, in the hope that his son would soon
return to his sober senses, and that the project would be abandoned with
the general concurrence of the family. Meanwhile young George was
transferred to Westminster School, then under the rule of the celebrated
Busby.

There is reason to fear that the zeal for improvement which he had
exhibited at St. Paul's soon left him, and that he here began to acquire
those habits of intemperance which afterwards proved so fatal to him. His
father hearing of these had all his fears revived, and when the boy was at
Acton during the holidays, again tried in vain to induce him to become a
tradesman. But finding all dissuasions unavailing, the old gentleman
withdrew his opposition, giving him a gentle pat on the back, accompanied
by these words--"Ah, George, George, I fear thou wilt die with thy shoes
and stockings on!"

Yet the wayward youth, while at Westminster, had fits of application, and
carried away from thence a sufficient stock of learning to prevent him
from appearing in after-life grossly deficient when any question of
grammar arose. He was fond of reminding the world of the great master
under whom he had studied.

His confidence in his own powers was so great, that, without conforming to
ordinary rules, he expected to overcome every obstacle. Being now in the
neighborhood of Westminster Hall, his ambition to be a great lawyer was
inflamed by seeing the grand processions on the first day of term, and by
occasionally peeping into the courts when an important trial was going
forward. When he was actually lord chancellor, he used to relate that,
while a boy at Westminster School, he had a dream, in which a gipsy read
his fortune, foretelling "that he should be the chief scholar there, and
should afterwards enrich himself by study and industry, and that he should
come to be the second man in the kingdom, but in conclusion should fall
into disgrace and misery."

He was now sixteen, an age after which it was not usual to remain at
school in those days. A family council was called at Acton, and as George
still sanguinely adhered to the law, it was settled that, the university
being quite beyond their reach, he should immediately be entered at an
inn of court; that, to support him there, his grandmother should allow him
forty pounds a year, and that his father should add ten pounds a year for
decent clothing.

On the 19th of May, 1663, to his great joy, he was admitted a member of
the Inner Temple. He got a small and gloomy chamber, in which, with much
energy, he began his legal studies. He not only had a natural boldness of
eloquence, but an excellent head for law. With steadiness of application
he would have greatly excelled Lord Keeper Guilford, and in the mastery of
this science would have rivalled Lord Hale and Lord Nottingham. But he
could not long resist the temptations of bad company. Having laid in a
very slender stock for a counsel or a judge, he forsook Littleton and
Plowden, "moots and readings," for the tavern, where was his chief
delight. He seems to have escaped the ruinous and irreclaimable vice of
gaming, but to have fallen into all others to which reckless templars were
prone. Nevertheless, he had ever a keen eye to his own interest; and in
these scenes of dissipation he assiduously cultivated the acquaintance of
young attorneys and their clerks, who might afterwards be useful to him.
When they met over a bowl of punch at the Devil tavern, or some worse
place, he charmed them with songs and jokes, and took care to bring out
before them, opportunely, any scrap of law which he had picked up, to
impress them with the notion that, when he put on his gown and applied to
business, he should be able to win all the causes in which he might be
retained. He was exceedingly popular, and he had many invitations to
dinner; which, to make his way in the world, he thought it better to
accept than to waste his time over the midnight oil in acquiring knowledge
which it might never be known that he possessed.

After the first fervor of loyalty which burst out at the restoration had
passed away, a malcontent party was formed, which gradually gained
strength. In this, most of the aspiring young lawyers, not actually
employed by the government, were ranged--finding it politic to begin in
"the sedition line," that their value might be better appreciated by the
court, and a better price might be bid for them. From such reasoning, or
perhaps from accidental circumstances, Jeffreys associated himself with
the popular leaders, and in the hour of revelry would drink on his knees
any toasts to "the good old cause," and to "the immortal memory of old
Noll."

He was often put to great shifts from the embarrassed state of his
finances, the ten pounds for "decent clothing" for a year being expended
in a single suit of cut velvet, and his grandmother's forty pounds being
insufficient to pay his tavern bills. But he displayed much address in
obtaining prolonged and increased credit from his tradesmen. He borrowed
adroitly; and it is said that such an impression was made by his opening
talents, that several wealthy men on the popular side voluntarily made him
presents of money, in the hope of the important services they were
speedily to receive from his support.

It is very much to be regretted that we have not from a Roger North more
minute information with respect to the manner in which his character was
formed, and his abilities were cultivated. He seems to have been a most
precocious young man. While still in his twentieth year, he was not only
familiarly acquainted with the town, and completely a man of the world,
exciting confident expectations of great future eminence, but he was
already received among veteran statesmen as a member of an important party
in the state, consulted as to their movements, and regarded as their
future leader.

After keeping all his terms, and doing all his exercises, he was regularly
called to the bar on the 22d day of November, 1668--having been on the
books of the society five years and six months--the requisite period of
probation having been previously, by a general regulation, reduced from
seven to the present period of five years.

Although he does not ever appear to have been chosen "reader" or
"treasurer" of the society, yet in the year 1678, on being elected
recorder of London, he was made a bencher, and he continued to be so till
he took the coif, when he necessarily left it for Serjeants' Inn.

During his early career he was involved in difficulties, which could only
have been overcome by uncommon energy. Pressed by creditors, and at a loss
to provide for the day that was passing over him, he had burdened himself
with the expenses of a family. But this arose out of a speculation, which,
in the first instance, was very prudent. Being a handsome young fellow,
and capable of making himself acceptable to modest women, notwithstanding
the bad company which he kept, he resolved to repair his fortunes by
marrying an heiress; and he fixed upon the daughter of a country gentleman
of large possessions, who, on account of his agreeable qualities, had
invited him to his house. The daughter, still very young, was cautiously
guarded, and almost always confined to her chamber; but Jeffreys contrived
to make a confidant and friend of a poor relation of hers, who was the
daughter of a country parson, and lived with her as a companion. Through
this agency he had established a correspondence with the heiress, and an
interest in her affections, so that on his last visit she had agreed, if
her father's consent could not be obtained, to elope with him. What was
his disappointment, soon after his return to his dismal chamber in the
Inner Temple, which he had hoped soon to exchange for a sumptuous
manor-house, to receive a letter from the _companion_, informing him "that
his correspondence with the _heiress_ had been discovered by the old
father, who was in such a rage, that locking up her cousin, he had
instantly turned herself out of doors, and that having taken shelter in
the house of an acquaintance in Holborn, she was there in a state of great
destitution and distraction, afraid to return to her father, or to inform
him of what had happened." The conduct of Jeffreys on this occasion may be
truly considered the brightest passage in his history. He went to her,
found her in tears, and considering that he had been the means of ruining
her prospects in life, (to say nothing of her being much handsomer than
her rich cousin,) he offered her his hand. She consented. Her father,
notwithstanding the character and circumstances of his proposed
son-in-law, out of regard to his daughter's reputation, sanctioned their
union, and to the surprise of all parties, gave her a fortune of three
hundred pounds.

She made an excellent wife, and I do not find any complaint of his having
used her ill till near the time of her death, a few years after, when he
had cast his affections upon the lady who became the second Mrs. Jeffreys.
Meanwhile he left her at her father's, occasionally visiting her; and he
continued to carry on his former pursuits, and to strengthen his
connections in London, with a view to his success at the bar, on which he
resolutely calculated with unabated confidence.

He was not disappointed. Never had a young lawyer risen so rapidly into
practice. But he cut out a new line for himself. Instead of attending in
Westminster Hall to take notes in law French of the long-winded arguments
of serjeants and eminent counsel, where he would have had little chance of
employment, he did not go near any of the superior courts for some years,
but confined himself to the Old Bailey, the London Sessions, and Hicks's
Hall. There he was soon "the cock of the walk."

Some of his pot companions were now of great use to him in bringing him
briefs, and recommending him to business. All this pushing would have been
of little avail if he had not fully equalled expectation by the forensic
abilities which he displayed. He had a very sweet and powerful voice,
having something in its tone which immediately fixed the attention, so
that his audience always were compelled to listen to him, irrespective of
what he said. "He was of bold aspect, and cared not for the countenance of
any man." He was extremely voluble, but always perspicuous and forcible,
making use of idiomatic, and familiar, and colloquial, and sometimes of
coarse language. He never spared any assertion that was likely to serve
his client. He could get up a point of law so as to argue it with great
ability, and with the justices, as well as with juries, his influence was
unbounded. He was particularly famous for his talent in cross-examination,
indulging in ribaldry and banter to a degree which would not now be
permitted. The audience being ever ready to take part with the persecuted
witness, the laugh was sometimes turned against him. It is related that,
about this time, beginning to cross-examine a witness in _a leathern
doublet_, who had made out a complete case against his client, he bawled
forth--"You fellow in the leathern doublet, pray what have you for
swearing?" The man looked steadily at him, and "Truly, sir," said he, "if
you have no more for lying than I have for swearing, you might wear a
leathern doublet as well as I." This blunt reply got to the west end of
the town, and was remembered among the courtiers against Jeffreys when he
grew to be a great man.

While a trial was going on, he was devotedly earnest in it; but when it
was over, he would recklessly get drunk, as if he never were to have
another to conduct. Coming so much in contact with the aldermen, he
ingratiated himself with them very much, and he was particularly
patronized by a namesake (though no relation) of his own--Jeffreys,
alderman of Bread Street Ward, who was very wealthy, a great smoker, (an
accomplishment in which the lawyer could rival him, as well as in
drinking,) and who had immense influence with the livery.

Pushed by him, or rising rapidly by his own buoyancy, our hero, before he
had been two years and a half at the bar, and while only twenty-three
years of age, was elected common serjeant of the city of London--an office
which has raised a Denman as well as a Jeffreys to be chief justice of
England. This first step of his elevation he obtained on the 17th of
March, 1671.

But his ambition was only inflamed by this promotion, which disqualified
him for a considerable part of his bar practice, and he resolved entirely
to change the field of his operations, making a dash at Westminster Hall.
He knew well that he could not be employed to draw declarations and pleas,
or to argue demurrers or special verdicts; but he hoped his talent for
examining witnesses and for speaking might avail him. At any rate, this
was the only road to high distinction in his profession, and he spurned
the idea of spending his life in trying petty larcenies, and dining with
the city companies.

Hard drinking was again his grand resource. He could now afford to invite
the great city attorneys to his house as well as carouse with them at
taverns, and they were pleased with the attentions of a rising barrister
as well as charmed with the pleasantry of the most jovial of companions.
He likewise began to cultivate fashionable society, and to consider how he
might contrive to get an introduction at court. "He put himself into all
companies, for which he was qualified by using himself to drink hard." Now
was the time when men got forward in life by showing their hatred of
puritanism, their devotion to church and king, and an affectation of vice,
even if actually free from it.

Yet such was the versatility of Jeffreys, that for the nonce he could
appear sanctimonious, and even puritanical. Thus he deceived the
religious, the moral, the immaculate Sir Matthew Hale, then chief justice
of the King's Bench. Roger North, in drawing the character of this
extraordinary man, says,--"Although he was very grave in his own person,
he loved the most bizarre and irregular wits in the practice of the law
before him most extravagantly. So Sir George Jeffreys gained as great an
ascendant in practice over him as ever counsel had over a judge."

As a King's Bench practitioner, Jeffreys was first employed at Nisi Prius
in actions for assaults and defamation; but before long the city attorneys
gave him briefs in commercial causes tried at Guildhall, and though in
_banc_ he could not well stand up against regularly-bred lawyers, like Sir
Francis North, Sir William Jones, Sir Creswell Levinz, and Heneage Finch,
the son of the Lord Chancellor Nottingham, he was generally equal to them
before a jury, and he rapidly trod upon their heels.

He anxiously asked himself how he was to climb to high office. He had
started with the disaffected party, and they had been of essential use to
him; but though they were growing in strength, no chance existed of their
being able to make attorney generals, chief justices, or chancellors. At
the same time he did not like yet to break with those who might still
serve him--particularly in obtaining the recordership, which he coveted as
a stepping stone to something better. He resolved so to manage as to be a
favorite of both parties till he could devote himself entirely, and
exclusively, and openly to the one which should be dominant; and he again
succeeded.

From his well-known influence in the city he found no difficulty in making
the acquaintance of Will Chiffinch, "the trusty page of the back stairs,"
who, besides other employments of a still more confidential nature, was
intrusted by Charles II. to get at the secrets of all men of any
consequence in every department of life. "This Mr. Chiffinch," says Roger
North, "was a true secretary as well as page, for he had a lodging at the
back stairs, which might have been properly termed 'the Spy Office,' where
the king spoke with particular persons about intrigues of all kinds; and
all little informers, projectors, &c., were carried to Chiffinch's
lodging. He was a most impetuous drinker, and in that capacity an
admirable spy; for he let none part with him sober, if it were possible to
get them drunk, and his great artifice was pushing idolatrous healths of
his good master, and being always in haste; _for the king is coming_;
which was his word. Being an Hercules well breathed at the sport himself,
he commonly had the better, and so fished out many secrets, and
discovered men's characters, which the king could never have obtained the
knowledge of by any other means. It is likely that Jeffreys, being a
pretender to main feats with the citizens, might forward himself, and be
entertained by Will Chiffinch, and that which at first was mere spying
turn to acquaintance, if not friendship, such as is apt to grow up between
immense drinkers, and from thence might spring recommendations of him to
the king, as the most useful man that could be found to serve his majesty
in London."

Thus, while Mr. Common Serjeant was caballing in the city with Lord
Shaftesbury, who had established himself in Aldersgate Street, and talked
of becoming lord mayor, he had secretly got a footing at court, and by
assurances of future services disposed the government to assist him in all
his jobs. His opposition friends were a little startled by hearing that he
had been made solicitor to the Duke of York; but he assured them that this
was merely a professional employment, unconnected with politics, which,
according to professional etiquette, he could not decline; and when he was
knighted as a mark of royal favor, with which he was silly enough to be
much tickled, he said that he was obliged reluctantly to submit to the
degradation as a consequence of his employment.

By some mischance, which is not explained, he missed the office of
recorder on the vacancy occasioned by the resignation of Sir John Howel,
who so outraged public decency on the trial of Penn and Mead; but Sir
William Dolbein, the successful candidate, being made a judge on the 22d
of October, 1678, Jeffreys was then elected his successor. Upon this
occasion there were three other candidates; but he was so warmly supported
by both parties in politics, that they all withdrew before the day of
nomination, and he is said in the city records to have been "freely and
unanimously elected."

The new recorder had hardly been sworn in, when feeling that the liberals
could do nothing more for him, he utterly cast them off, becoming for the
rest of his life the open, avowed, unblushing slave of the court, and the
bitter, persecuting, and unappeasable enemy of the principles he had
before supported, and of the men he had professed to love.

He entirely forsook Thanet House, in Aldersgate Street, and all the
meetings of the Whigs in the city; and instead of secret interviews with
Will Chiffinch in the "Spy Office," he went openly to court, and with his
usual address, he contrived, by constant assiduities and flatteries, to
gain the good graces both of Nell Gwyn and of the Duchess of Portsmouth,
who, since the fall of Lady Castlemaine, held divided empire at Whitehall,
balancing the Roman Catholic and Protestant parties. To each of these
ladies, it would appear from the libels of the day, his rise was
attributed.

However, not long after he had openly ratted, an accident happened that
had like to have spoiled all his projects; and that was the breaking out
of the Popish plot. Although there is no reasonable ground for saying that
it was contrived by Shaftesbury, he made such skilful and unscrupulous use
of it, that suddenly, from appearing the leader of a small, declining, and
despairing party, he had the city and the nation at his beck, and with a
majority in both houses of Parliament, there seemed every probability that
he would soon force himself upon the king, and have at his disposal all
the patronage of the government. Jeffreys was for some time much
disconcerted, and thought that once in his life he had made a false move.
He was utterly at a loss how to conduct himself, and his craft never was
put to so severe a trial.

Being called into council, he recommended that the government should
profess to credit the plot, and should outvie the other side in zeal for
the Protestant religion, but should contrive to make Shaftesbury
answerable for the reality of the conspiracy; so that, if hereafter it
should blow up, or the people should get tired of it, all that was done to
punish the supposed authors of it might be laid to his account.

He immediately began diligently to work the Popish plot according to his
own scheme. Coleman, Whitbread, Ireland, and all whom Oates and Bedloe
accused being committed to prison, it was resolved to prosecute them for
high treason in having compassed the death of the king, as well as the
overthrow of the Protestant religion; and their trials were conducted by
the government as state trials, partly at the bar of the Court of King's
Bench, and partly at the Old Bailey. In the former Jeffreys acted as a
counsel, in the latter as a judge. It is asserted, and not improbably,
that he had a real horror of Popery, which, though he could control it in
the presence of the Duke of York, and when his interest required, at other
times burst out with sincerity as well as fierceness.

Scroggs presided at the Old Bailey, but Jeffreys whetted his fury by
telling him that the king was a thorough believer in the plot, and by
echoing his expressions; as, when the chief justice said to the jury, "You
have done like honest men," he exclaimed in a stage whisper, "They have
done like honest men." As mouthpiece of the lord mayor, the head of the
commission, after conviction he had the pleasing duty of passing sentence
of death by the protracted tortures which the law of treason prescribed.

He had a still greater treat in passing the like sentence on Richard
Langhorne, an eminent Catholic barrister, with whom he had been familiarly
acquainted. He first addressed generally the whole batch of the prisoners
convicted, whom he thus continues to upbraid for trying to root out "the
best of religions:" "I call it the best of religions, even for your sakes;
for had it not been for the sake of our religion, that teaches us not to
make such requitals as yours seems to teach you, you had not had this
fair, formal trial, but murder would have been returned to you for the
murder you intended to commit both upon the king and most of his people.
What a strange sort of religion is that whose doctrine seems to allow them
to be the greatest saints in another world who have been the most impudent
sinners in this! Murder and the blackest of crimes were the best means
among you to get a man to be canonized a saint hereafter." Then he comes
to his brother lawyer--"There is one gentleman that stands at the bar whom
I am very sorry to see, with all my heart, in this condition, because of
some acquaintance I have had with him heretofore. To see that a man who
hath understanding in the law, and who hath arrived at so great an
eminency in that profession as this gentleman hath done, should not
remember that it is not only against the rules of Christianity, but even
against the rules of his profession, to attempt any injury against the
person of the king! He knows it is against all the rules of law to
endeavor to introduce a foreign power into this land. So that you have
sinned both against your conscience and your own certain knowledge." Last
of all, he offers his friend the assistance of a Protestant divine to
prepare him for a speedy departure, and, referring him to the statute
whereby the ministration of a Catholic priest is made illegal, he himself,
though "a layman," gives him some "pious advice." He had carried the
sympathies of his audience along with him, for, when he had concluded with
the "quartering," he was greeted with a loud shout of applause.

Thus, by the powerful assistance of the recorder, did the government
obtain popularity for prosecuting the plot, till the people at last
actually did get tired of it, and Shaftesbury was prevented from deriving
any fruit from it beyond the precarious tenure, for a few months, of his
office of president of the council.

The recorder was equally zealous, on all other occasions, to do what he
thought would be agreeable at court. With the view of repressing public
discussion, he laid down for law, as he said, on the authority of all the
judges, "that no person whatsoever could expose to the public knowledge
any thing that concerned the affairs of the public without license from
the king, or from such persons as he may think fit to intrust with that
power."

The grand jury having several times returned "_ignoramus_" to an
indictment against one Smith for a libel, in respect of a very innocent
publication, though they were sent out of court to reconsider the finding,
he at last exclaimed, "God bless me from such jurymen. I will see the face
of every one of them, and let others see them also." He accordingly
cleared the bar, and, calling the jurymen one by one, put the question to
them, and made each of them repeat the word "_ignoramus_." He then went on
another tack, and addressing the defendant, said, in a coaxing tone,
"Come, Mr. Smith, there are two persons besides you whom this jury have
brought in _ignoramus_; but they have been ingenuous enough to confess,
and I cannot think to fine them little enough; they shall be fined
twopence for their ingenuity in confessing. Well, come, Mr. Smith, we know
who hath formerly owned both printing and publishing this book."
_Smith._--"Sir, my ingenuity hath sufficiently experienced the reward of
your severity; and, besides, I know no law commands me to accuse myself;
neither shall I; and the jury have done like true Englishmen and worthy
citizens, and blessed be God for such a jury." Jeffreys was furious, but
could only vent his rage by committing the defendant till he gave security
for his good behavior.

Such services were not to go unrewarded. It was the wish of the government
to put the renegade Jeffreys into the office of chief justice of Chester,
so often the price of political apostasy; but Sir Job Charlton, a very old
gentleman, who now held it, could not be prevailed upon voluntarily to
resign, for he had a considerable estate in the neighborhood, and was
loath to be stripped of his dignity. Jeffreys, supported by the Duke of
York, pressed the king hard, urging that "a Welshman ought not to judge
his countrymen," and a message was sent to Sir Job that he was to be
removed. The old gentleman was imperfectly consoled with the place of
puisne judge of the Common Pleas, which, in the reign of James II., he was
subsequently allowed to exchange for his beloved Chester. Meanwhile he was
succeeded by Jeffreys, "more Welshman than himself," who was at the same
time made counsel for the crown, at Ludlow, where a court was still held
for Wales.

Immediately afterwards, the new chief justice was called to the degree of
the coif, and made king's serjeant, whereby he had precedence in
Westminster Hall of the attorney and solicitor general. The motto on his
rings, with great brevity and point, inculcated the prevailing doctrines
of divine right and passive obedience--"_A Deo Rex, a Rege Lex_." As a
further mark of royal favor, there was conferred upon him the hereditary
dignity of a baronet. He still retained the recordership of London, and
had extensive practice at the bar.

The great prosperity which Jeffreys now enjoyed had not the effect which
it ought to have produced upon a good disposition, by making him more
courteous and kind to others. When not under the sordid dread of injuring
himself by offending superiors, he was universally insolent and
overbearing. Being made chief justice of Chester, he thought that all
puisne judges were beneath him, and he would not behave to them with
decent respect, even when practising before them. At the Kingston assizes,
Baron Weston having tried to check his irregularities, he complained that
he was not treated like a counsellor, being curbed in the management of
his brief. _Weston, B._--"Sir George, since the king has thrust his favors
upon you, and made you chief justice of Chester, you think to run down
every body; if you find yourself aggrieved, make your complaint; here's
nobody cares for you." _Jeffreys._--"I have not been used to make
complaints, but rather to stop those that are made." _Weston, B._--"I
desire, sir, that you will sit down." He sat down, and is said to have
wept with anger. His intemperate habits had so far shaken his nerves, that
he shed tears very freely on any strong emotion.

We may be prepared for his playing some fantastic tricks before his
countrymen at Chester, where he was subject to no control; but the
description of his conduct there by Lord Delamere, (afterwards Earl of
Warrington,) in denouncing it in the House of Commons, must surely be
overcharged:--

"The county for which I serve is Cheshire, which is a county palatine; and
we have two judges peculiarly assigned us by his majesty. Our puisne judge
I have nothing to say against; he is a very honest man, for aught I know;
but I cannot be silent as to our chief judge; and I will name him, because
what I have to say will appear more probable. His name is Sir George
Jeffreys, who, I must say, behaved himself more like a jack-pudding than
with that gravity which becomes a judge. He was witty upon the prisoners
at the bar. He was very full of his jokes upon people that came to give
evidence, not suffering them to declare what they had to say in their own
way and method, but would interrupt them because they behaved themselves
with more gravity than he. But I do not insist upon this, nor upon the
late hours he kept up and down our city; it's said he was every night
drinking till two o'clock, or beyond that time, and that he went to his
chamber drunk; but this I have only by common fame, for I was not in his
company; I bless God I am not a man of his principles and behavior; but in
the mornings he appeared with the symptoms of a man that overnight had
taken a large cup. That which I have to say is the complaint of every man,
especially of them that had any lawsuits. Our chief justice has a very
arbitrary power in appointing the assize when he pleases, and this man has
strained it to the highest point; for whereas we were accustomed to have
two assizes, the first about April or May, the latter about September, it
was this year the middle (as I remember) of August before we had any
assize; and then he despatched business so well that he left half the
causes untried; and, to help the matter, has resolved we shall have no
more assizes this year."

Being tired of revelling in Chester, he put a sudden end to his first
assize there, that he might pay a visit to his native place; to which I am
afraid he was less prompted by a pious wish to embrace his father, who had
been so resolutely bent on making him a shopkeeper, and who, from the
stories propagated about his conduct as a judge, still expressed some
misgivings about him, as to dazzle his old companions with the splendor of
his new state. Accordingly he came with such a train that the cider
barrels at Acton ran very fast, and the larder was soon exhausted;
whereupon the old gentleman, in a great fret, charged his son with a
design to ruin him, by bringing a whole county at his heels, and warned
him against again attempting the same prodigality.

But a violent political storm now arose, which threatened entirely to
overwhelm our hero, and from which he did not escape unhurt. In the
struggle which arose from the long delay to assemble Parliament, he had
leagued himself strongly with the "Abhorrers" against the "Petitioners,"
and proceedings were instituted in the House of Commons on this ground,
against him along with Chief Justice Scroggs and Chief Justice North.

A petition from the city of London, very numerously signed, having been
presented, complaining that the recorder had obstructed the citizens in
their attempts to have Parliament assembled for the redress of grievances,
a select committee was appointed, who, having heard evidence on the
subject, and examined him in person, presented a report, on which the
following resolutions were passed:--

"That Sir George Jeffreys, recorder of the city of London, by traducing
and obstructing petitioning for the sitting of this Parliament, hath
destroyed the right of the subject.

"That an humble address be presented to his majesty, to remove Sir George
Jeffreys out of all public offices.

"That the members of this house serving for the city of London do
communicate these resolutions to the Court of Aldermen for the said city."

The king was stanch, and returned for answer to the address the civil
refusal "that he would consider of it;"[115] but Jeffreys, who, where he
apprehended personal danger, was "none of the intrepids," quailed under
the charge, and, afraid of further steps being taken against him, came to
an understanding that he should give up the recordership, which his
enemies wished to be conferred upon their partisan, Sir George Treby. The
king was much chagrined at the loss of such a valuable recorder, and said
sarcastically that "he was not Parliament-proof." But he was obliged to
acquiesce, and Jeffreys, having been reprimanded on his knees at the bar,
was discharged. The address of Speaker Williams was very bitter, and
caused deep resentment in the mind of Jeffreys. On the 2d of December he
actually did resign his office, and Treby was chosen to succeed him.

In a few days after there was exhibited one of Lord Shaftesbury's famous
Protestant processions, on the anniversary of the accession of Queen
Elizabeth. In this rode a figure on horseback, to represent the
ex-recorder, with his face to the tail, and a label on his back, "I am an
Abhorrer." At Temple Bar he was thrown into a bonfire, coupled with the
devil; the preceding pair, who suffered the same fate, being Sir Roger
L'Estrange[116] and the Pope of Rome.

However, all these indignities endeared him to the court; and his
pusillanimity was forgiven from the recollection of past and the hope of
future services. A petition from the city being presented to the king at
Hampton Court, he attended as a liveryman, though no longer the mouthpiece
of the corporation, when he was treated with marked civility by Charles,
and detained to dinner, while the lord mayor and aldermen and the new
recorder were sent off with a reprimand.

To oblige the court, and to assist them in their criminal jobs, he
accepted the appointment of chairman of the Middlesex sessions at Hicks's
Hall, although it was somewhat beneath his dignity, and it deprived him of
a portion of his practice. Here the grand jury were sworn in; and as they
were returned by sheriffs whom the city of London elected, and who were
still of the liberal party, the problem was to have them remodelled, so
that they might find bills of indictment against all whom the government
wished to prosecute. With this view, Jeffreys declared that none should
serve except true church of England men; and he ordered the under-sheriff
to return a new panel purged of all sectarians. He had a particular spite
against the Presbyterians, who had mainly contributed to his being turned
out of the recordership. The under-sheriff disobeying his summons, he
ordered the sheriffs to attend next day in person; but in their stead came
the new recorder, who urged that, by the privileges of the city of London,
they were exempted from attending at Hicks's Hall. He overruled this claim
with contempt, and fined the sheriffs one hundred pounds. It was found,
however, that while the city retained the power of electing the sheriffs,
all these attempts to pervert justice would be fruitless.

Jeffreys remained in a state of painful anxiety during Charles's last
Westminster Parliament, and during the few days of the Oxford Parliament.
The popular party had such a majority in the House of Commons, and seemed
so powerful, that it is said the renegade again expressed deep regret that
he had left them; but late at night, on Monday, the 28th day of March,
1681, news arrived in London, that early that morning the king had
dissolved the Parliament, and had declared his firm determination never to
call another. If Jeffreys was still sober, and got drunk that night, we
ought to excuse him.

Now his talents were to be brought into full play. In the conflict, the
ranks of the enemy being thrown into disorder, the brigade of the lawyers,
who had been kept back as a reserve, was marched up to hang on their
broken rear, insulting, and to sweep them from the field.

First came on the trial of Fitzharris for high treason. Jeffreys, as
counsel for the crown, argued the demurrer to the plea of the pendency of
the impeachment; and then, having assisted the Duchess of Portsmouth to
evade the questions which were put to her for the purpose of showing that
the prisoner had acted under the king's orders, he addressed the jury with
great zeal after the solicitor general, and was mainly instrumental in
obtaining the conviction.

Next came the trial of Archbishop Plunkett, the Roman Catholic Primate of
Ireland, in which Jeffreys was so intemperate that the attorney general
was obliged to check him, that the prisoner might have some show of fair
play. But it was on the trial of College, "the Protestant joiner,"[117]
that he gave the earliest specimen of his characteristic ribaldry, and
his talent for jesting in cases of life and death, which shone out so
conspicuously when he was lord chief justice of the King's Bench. He began
with strongly justifying the act of taking from the prisoner the papers he
was to use in his defence, saying, that to allow him to see them would be
"assigning counsel to him with a vengeance." A witness having stated that
pistols were found in the prisoner's holsters when he was attending the
city members at Oxford, he exclaimed with a grin, "I think a _chisel_
might have been more proper for a _joiner_."

There was called as a witness, by the prisoner, one Lun, who, being a
waiter at the Devil Tavern and a fanatic, had some years before been
caught on his knees praying against the Cavaliers, saying, "Scatter them,
good Lord! Scatter them!" from whence he had ever after borne the nickname
of "Scatter'em." Jeffreys thus begins his cross-examination: "We know you,
Mr. Lun; we only ask questions about you that the jury too may know you as
well as we." _Lun._--"I don't care to give evidence of any thing but the
truth. I was never on my knees before the Parliament for any thing."
_Jeffreys._--"Nor I neither for much; yet you were once on your knees when
you cried, 'Scatter them, good Lord!' Was it not so, Mr. Scatter'em?"

He had next an encounter with the famous Titus Oates, who was called by
College, and who, when cross-examined by him, appealed to Sir George
Jeffreys's own knowledge of a fact about which he was inquiring.
_Jeffreys._--"Sir George Jeffreys does not intend to be an evidence, I
assure you." _Dr. Oates._--"I do not desire Sir George Jeffreys to be an
evidence for me; I had credit in Parliaments, and Sir George had disgrace
in one of them." _Jeffreys._--"Your servant, doctor; you are a witty man
and a philosopher." He had his full revenge when the doctor himself was
afterwards tried before him.

We may judge of the councillor's general style of treating witnesses by
his remark on the trial of Lord Grey de Werke for carrying off the Lady
Henrietta Berkeley; when his objection was overruled to the competency of
the young lady as a witness for the defendant, although she was not only
of high rank and uncommon beauty, but undoubted veracity, he observed,
"Truly, my lord, we would prevent perjury if we could."

We now come to transactions which strikingly prove the innate baseness of
his nature in the midst of his pretended openness and jolly good humor. He
owed every thing in life to the corporation of the city of London. The
freemen, in the exercise of their ancient privileges, had raised him from
the ground by electing him common serjeant and recorder, and to the
influence he was supposed to have in the Court of Common Council and in
the Court of Aldermen must be ascribed his introduction to Whitehall and
all his political advancement. But when, upon the failure of the
prosecution against Lord Shaftesbury, the free municipal constitution of
the city became so odious to the government, he heartily entered into the
conspiracy to destroy it. It is said that he actually suggested the scheme
of having a sheriff nominated by the lord mayor, and he certainly took a
very active part in carrying it into execution. On Midsummer day, having
planted Lord Chief Justice North in his house in Aldermanbury, that he
might be backed by his authority, he himself appeared on the hustings in
Guildhall; and when the poll was going against the court candidates,
illegally advised the lord mayor to dissolve the hall, and afterwards to
declare them duly elected. He did every thing in his power to push on and
to assist the great _quo warranto_, by which the city was to be entirely
disfranchised.[118]

When success had crowned these efforts, and Pilkington and Shute, the
former sheriffs, with Alderman Cornish and others, were to be tried before
a packed jury for a riot at the election, finding that he had the game in
his hand, his insolence knew no bounds. The defendants having challenged
the array, on the ground that the sheriffs who returned the panel were not
lawfully appointed,[119] as soon as the challenge was read, he exclaimed,
"Here's a tale of a tub indeed!" The counsel for the defendants insisted
that the challenge was good in law, and at great length argued for its
validity.

  _Jeffreys._--"Robin Hood
        Upon Greendale stood."

_Thompson, Counsel for the Defendants._--"If the challenge be not good,
there must be a defect in it either in point of law or in point of fact. I
pray that the crown may either demur or traverse." _Jeffreys._--"This
discourse is only for discourse sake. I pray the jury may be sworn." _Lord
Chief Justice Saunders._--"Ay, ay, swear the jury." The defendants were,
of course, all found guilty; and as there were among them the most eminent
of Jeffreys's old city friends, he exerted himself to the utmost not only
in gaining a conviction, but in aggravating the sentence.

But this was only a case of misdemeanor, in which he could ask for nothing
beyond fine and imprisonment. He was soon to be engaged in prosecutions
for high treason against the noblest of the land, in which his savage
taste for blood might be gratified. The Ryehouse plot broke out, for which
there was some foundation; and after the conviction of those who had
planned it, Lord Russell was brought to trial at the Old Bailey, on the
ground that he had consented to it.

Jeffreys, in the late state trials, had gradually been encroaching on the
attorney and solicitor general, Sir Robert Sawyer and Sir Heneage Finch,
and in Lord Russell's case, to which the government attached such infinite
importance, he almost entirely superseded them. To account for his
unexampled zeal, we must remember that the office of chief justice of the
King's Bench was still vacant, Saunders having died a few months before,
and Lord Keeper North having strongly opposed the appointment of Jeffreys
as his successor.

These trials took place before a commission, at the head of which was
placed Pemberton, chief justice of the Common Pleas, to whom a chance was
thus afforded of earning a reappointment to the chief justiceship of the
King's Bench, in which he had been superseded by Saunders.

The case of Colonel Walcot was taken first; and here there was no
difficulty, for he had not only joined in planning an insurrection against
the government, but was privy to the design of assassinating the king and
the Duke of York, and in a letter to the secretary of state he had
confessed his complicity, and offered to become a witness for the crown.
This trial was meant to prepare the public mind for that of Lord Russell,
the great ornament of the Whig party, who had carried the exclusion bill
through the House of Commons, and, attended by a great following of Whig
members, had delivered it with his own hand to the lord chancellor at the
bar of the House of Lords. In proportion to his virtues was the desire to
wreak vengeance upon him. But the object was no less difficult than
desirable, for he had been kept profoundly ignorant of the intention to
offer violence to the royal brothers, from the certainty that he would
have rejected it with abhorrence; and although he had been present when
there were deliberations respecting the right and the expediency of
resistance by force to the government after the system had been
established of ruling without Parliaments, he had never concurred in the
opinion that there were no longer constitutional means of redress; much
less had he concerted an armed insurrection. Notwithstanding all the
efforts made to return a prejudiced jury, there were serious apprehensions
of an acquittal.

Pemberton, the presiding judge, seems to have been convinced that the
evidence against him was insufficient; and although he did not interpose
with becoming vigor, by repressing the unfair arts of Jeffreys, who was
leading counsel for the crown, and although he did not stop the
prosecution, as an independent judge would do in modern times, he cannot
be accused of any perversion of law; and, instead of treating the prisoner
with brutality, as was wished and expected, he behaved to him with
courtesy and seeming kindness.

Lord Russell, on his arraignment at the sitting of the court in the
morning, having prayed that the trial should be postponed till the
afternoon, as a witness for him was absent, and it had been usual in such
case to allow an interval between the arraignment and the trial, Pemberton
said, "Why may not this trial be respited till the afternoon?" and the
only answer being the insolent exclamation, "Pray call the jury," he
mildly added, "My lord, the king's counsel think it not reasonable to put
off the trial longer, and we cannot put it off without their consent in
this case."

The following dialogue then took place, which introduced the touching
display of female tenderness and heroism of the celebrated Rachel, Lady
Russell, assisting her martyred husband during his trial--a subject often
illustrated both by the pen and the pencil.

_Lord Russell._--"My lord, may I not have the use of pen, ink, and paper?"
_Pemberton._--"Yes, my lord." _Lord Russell._--"My lord, may I not make
use of any papers I have?" _Pemberton._--"Yes, by all means." _Lord
Russell._--"May I have somebody write to help my memory?" _Attorney
General._--"Yes, a servant." _Lord Russell._--"My wife is here, my lord,
to do it." _Pemberton._--"If my lady please to give herself the trouble."

The chief justice admitted Dr. Burnet, Dr. Tillotson, and other witnesses,
to speak to the good character and loyal conversation of the prisoner, and
gave weight to their testimony, notwithstanding the observation of
Jeffreys that "it was easy to express a regard for the king while
conspiring to murder him."

Lord Russell had certainly been present at a meeting of the conspirators,
when there was a consultation about seizing the king's guards; but he
insisted that he came in accidentally, that he had taken no part in the
conversation, and that he was not acquainted with their plans. The
aspirant chief justice saw clearly where was the pinch of the case, and
the attorney general, who was examining Colonel Rumsey, being contented
with asking--"Was the prisoner at the debate?" and receiving the answer
"Yes," Jeffreys started up, took the witness into his own hands, and
calling upon him to draw the inference which was for the jury, pinned the
basket by this leading and highly irregular question--"Did you find him
averse to it or agreeing to it?" Having got the echoing answer which he
suggested, "_Agreeing to it_," he looked round with exultation, and said,
"If my Lord Russell now pleases to ask any questions, he may!"

Jeffreys addressed the jury in reply after the solicitor general had
finished, and much outdid him in pressing the case against the prisoner,
while he disclaimed with horror the endeavor to take away the life of the
innocent.

The jury retired, and the courtiers present were in a state of the
greatest alarm; for against Algernon Sydney, who was to be tried next, the
case was still weaker; and if the two whig chiefs, who were considered
already cut off, should recover their liberty, and should renew their
agitation, a national cry might be got up for the summoning of Parliament,
and a new effort might be made to rescue the country from a Popish
successor. These fears were vain. The jury returned a verdict of guilty,
and Lord Russell expiated on the scaffold the crime of trying to preserve
the religion and liberties of his country.

Jeffreys had all the glory of the verdict of guilty, and as the Lord Chief
Justice Pemberton had rather flinched during this trial, and the attorney
and solicitor general were thought men who would cry CRAVEN, and as the
next case was not less important and still more ticklish, all objections
to the proposed elevation of the favorite vanished, and he became chief
justice of England, as the only man fit to condemn Algernon Sydney.[120]

The new chief justice was sworn in on the 29th of September, 1683, and
took his seat in the Court of King's Bench on the first day of the
following Michaelmas term.

Sydney's case was immediately brought on before him in this court, the
indictment being removed by _certiorari_ from the Old Bailey, that it
might be under his peculiar care. The prisoner wishing to plead some
collateral matter, was told by the chief justice that, if overruled,
sentence of death would immediately be passed upon him. Though there can
be no doubt of the illegality of the conviction, the charge against
Jeffreys is unfounded, that he admitted the MS. treatise on government to
be read without any evidence of its having been written by the prisoner,
beyond "similitude of hands." Two witnesses, who were acquainted with his
handwriting from having seen him indorse bills of exchange, swore that
they believed it to be his handwriting, and they were corroborated by a
third, who, with his privity, had paid notes purporting to be indorsed by
him without any complaint ever being made. But the undeniable and
ineffaceable atrocity of the case was the lord chief justice's doctrine,
that "_scribere est agere_," and that therefore this MS. containing some
abstract speculations on different forms of government written many years
before, never shown to any human being, and containing nothing beyond the
constitutional principles of Locke and Paley, was tantamount to the
evidence of a witness to prove an overt act of high treason. "If you
believe that this was Colonel Sydney's book, writ by him, no man can
doubt that it is a sufficient evidence that he is guilty of compassing and
imagining the death of the king. It fixes the whole power in the
Parliament and the people. The king, it says, is responsible to them; the
king is but their trustee. Gentlemen, I must tell you I think I ought more
than ordinarily to press this upon you, because I know the misfortune of
the late unhappy rebellion, and the bringing of the late blessed king to
the scaffold, was first begun with such kind of principles. They cried he
had betrayed the trust that was delegated to him by the people, so that
the case rests not upon two but upon greater evidence than twenty-two
witnesses, if you believe this book was writ by him."

The chief justice having had the satisfaction of pronouncing with his own
lips the sentence upon Sydney, of death and mutilation, instead of leaving
the task as usual to the senior puisne judge, a scene followed which is
familiar to every one. _Sydney._--"Then, O God! O God! I beseech thee to
sanctify these sufferings unto me, and impute not my blood to the country;
let no inquisition be made for it, but if any, and the shedding of blood
that is innocent must be revenged, let the weight of it fall only upon
those that maliciously persecute me for righteousness sake." _Lord C. J.
Jeffreys._--"I pray God work in you a temper fit to go unto the other
world, for I see you are not fit for this." _Sydney._--"My lord, feel my
pulse [holding out his hand,] and see if I am disordered. I bless God I
never was in better temper than I now am." By order of the chief justice,
the lieutenant of the tower immediately removed the prisoner.

A very few days after, and while this illustrious patriot was still lying
under sentence of death, the Lord Chief Justice Jeffreys and Mr. Justice
Withins, who sat as his brother judge on the trial, went to a gay city
wedding, where the lord mayor and other grandees were present. Evelyn, who
was of the party, tells us that the chief and the puisne both "danced with
the bride and were exceeding merry." He adds, "These great men spent the
rest of the afternoon until eleven at night in drinking healths, taking
tobacco, and talking much beneath the gravity of judges, who had but a day
or two before condemned Mr. Algernon Sydney."

The next exhibition in the court of King's Bench which particularly
pleased Jeffreys and horrified the public, was the condemnation of Sir
Thomas Armstrong. This gentleman was outlawed while beyond the seas, and
being sent from Holland within the year, sought, according to his clear
right in law, to reverse the outlawry.[121] I have had occasion to
reprobate the conduct of Lord Keeper North in refusing him his writ of
error, and suffering his execution; but Jeffreys may be considered the
executioner. When brought up to the King's Bench bar, Armstrong was
attended by his daughter, a most beautiful and interesting young woman,
who, when the chief justice had illegally overruled the plea, and
pronounced judgment of death under the outlawry, exclaimed, "My lord, I
hope you will not murder my father." _Chief Justice Jeffreys._--"Who is
this woman? Marshal, take her into custody. Why, how now? Because your
relative is attainted for high treason, must you take upon you to tax the
courts of justice for murder when we grant execution according to law?
Take her away." _Daughter._--"God Almighty's judgments light upon you."
_Chief Justice Jeffreys._--"God Almighty's judgments will light upon those
that are guilty of high treason." _Daughter._--"Amen. I pray God." _Chief
Justice Jeffreys._--"So say I. I thank God I am clamor proof." [The
daughter is committed to prison, and carried off in custody.] _Sir Thomas
Armstrong._--"I ought to have the benefit of the law, and I demand no
more." _Chief Justice Jeffreys._--"That you shall have, by the grace of
God. See that execution be done on Friday next, according to law. You
shall have the full benefit of the law!" Armstrong was hanged, embowelled,
beheaded, and quartered accordingly.

When Jeffreys came to the king at Windsor soon after this trial, "the king
took a ring of good value from his finger and gave it to him for these
services. The ring upon that was called his _blood stone_."[122] In the
reign of William and Mary, Armstrong's attainder was reversed. Jeffreys
was then out of reach of process, but for the share which Sir Robert
Sawyer had in it as attorney general, he was expelled the House of
Commons.

Jeffreys had now the satisfaction of causing an information to be filed
against Sir William Williams for having, as Speaker of the House of
Commons, under the orders of the House, directed the printing of
"Dangerfield's Narrative,"[123] the vengeful tyrant thus dealing a blow at
once to an old enemy who had reprimanded him on his knees, and to the
privileges of the House, equally the object of his detestation. He was in
hopes of deciding the case himself, but he left it as a legacy to his
successor, Chief Justice Herbert, who, under his auspices, at once
overruled the plea, and fined the defendant ten thousand pounds.

Not only was Jeffreys a privy councillor, but he had become a member of
the cabinet, where, from his superior boldness and energy, as well as his
more agreeable manners, he had gained a complete victory over Lord Keeper
North, whom he denounced as a "trimmer," and the great seal seemed almost
within his grasp.[124] To secure it, he still strove to do every thing he
could devise to please the court, as if hitherto nothing base had been
done by him. When, to his great joy, final judgment was entered up against
the city of London on the _quo warranto_, he undertook to get all the
considerable towns in England to surrender their charters on the threat of
similar proceedings; and with this view, in the autumn of 1684, he made a
"campaign in the north," which was almost as fatal to corporations as that
"in the West," the following year, proved to the lives of men. To show to
the public the special credit he enjoyed at court, the London Gazette,
just before he set out, in reference to the gift bestowed upon him for the
judgment against Sir Thomas Armstrong, announced "that his majesty, as a
mark of his royal favor, had taken a ring from his own finger and placed
it on that of Lord Chief Justice Jeffreys." In consequence, although when
on the circuit he forgot the caution against hard drinking, with which the
gift had been accompanied, he carried every thing before him, "charters
fell like the walls of Jericho," and he returned laden with his
hyperborean spoils.

I have already related the clutch at the great seal which he then made,
and his temporary disappointment.[125] He was contented to "bide his
time." There were only two other occasions when he had it in his power to
pervert the law, for the purpose of pleasing the court, during the present
reign. The first was on the trial of Hampden, the grandson of the great
Hampden, for a trifling misdemeanor. Although this young gentleman was
only heir apparent to a moderate estate, and not in possession of any
property, he was sentenced to pay a fine of forty thousand
pounds--Jeffreys saying that the clause in Magna Charta, "_Liber homo non
amercietur pro magno delicto nisi salvo contenemento suo_," does not apply
to fines imposed by the king's judges. The other was the inquisition in
the action of _scan. mag._ brought by the Duke of York against Titus
Oates, in which the jury, under his direction, awarded one hundred
thousand pounds damages.

Ever since the disfranchisement of the city of London, the ex-recorder had
ruled it with a rod of iron. He set up a nominal lord mayor and nominal
aldermen; but, as they were entirely dependent upon him, he treated them
with continual insolence.

On the sudden death of Charles II., Jeffreys no doubt thought the period
was arrived when he must be rewarded for the peculiar zeal with which he
had abandoned himself to the service of the successor; but he was at first
disappointed, and he had still to "wade through slaughter" to the seat he
so much coveted.

Not dismayed, he resolved to act on two principles: 1st, If possible, to
outdo himself in pleasing his master, whose arbitrary and cruel
disposition became more apparent from the hour that he mounted the
throne. 2dly, To leave no effort untried to discredit, disgrace, disgust,
and break the heart of the man who stood between him and his object.

Being confirmed in the office of chief justice of the King's Bench, he
began with the trial for perjury of Titus Oates, whose veracity he had
often maintained, but with whom he had a personal quarrel, and whom he now
held up to reprobation--depriving him of all chance of acquittal. The
defendant was found guilty on two indictments, and the verdict on both was
probably correct; but what is to be said for the sentence--"To pay on each
indictment a fine of one thousand marks; to be stript of all his canonical
habits; to be imprisoned for life; to stand in the pillory on the
following Monday, with a paper over his head, declaring his crime; next
day to stand in the pillory at the Royal Exchange, with the same
inscription; on the Wednesday to be whipped from Aldgate to Newgate; on
the Friday to be whipped from Newgate to Tyburn; upon the 25th of April in
every year, during life, to stand in the pillory at Tyburn, opposite the
gallows; on the 9th of August in every year to stand in the pillory
opposite Westminster Hall gate; on the 10th of August in every year to
stand in the pillory at Charing Cross; and the like on the following day
at Temple Bar; and the like on the 2d of September, every year, at the
Royal Exchange;"--the court expressing deep regret that they could not do
more, as they would "not have been unwilling to have given judgment of
death upon him."[126]

Next came the trial of Richard Baxter, the pious and learned Presbyterian
divine, who had actually said, and adhered to the saying, "_Nolo
episcopari_," and who was now prosecuted for a libel, because in a book on
church government he had reflected on the church of Rome in words which
might possibly be applied to the bishops of the church of England. No
such reference was intended by him; and he was known not only to be of
exemplary private character, but to be warmly attached to monarchy, and
always inclined to moderate measures in the differences between the
established church and those of his own persuasion.[127] Yet, when he
pleaded _not guilty_, and prayed on account of ill health that his trial
might be postponed, Jeffreys exclaimed, "Not a minute more to save his
life. We have had to do with other sort of persons, but now we have a
saint to deal with; and I know how to deal with saints as well as sinners.
Yonder stands Oates in the pillory, [Oates was at that moment suffering
part of his sentence in Palace Yard, outside the great gate of Westminster
Hall,] and he says he suffers for the truth; and so says Baxter; but if
Baxter did but stand on the outside of the pillory with him, I would say
_two of the greatest rogues and rascals in the kingdom stood there
together_." Having silenced the defendant's counsel by almost incredible
rudeness, the defendant himself wished to speak, when the chief justice
burst out, "Richard, Richard, thou art an old fellow and an old knave;
thou hast written books enough to load a cart; every one is as full of
sedition, I might say treason, as an egg is full of meat; hadst thou been
whipt out of thy writing trade forty years ago, it had been happy. Thou
pretendest to be a preacher of the gospel of peace, and thou hast one foot
in the grave; it is time for thee to begin to think what account thou
intendest to give; but leave thee to thyself, and I see thou wilt go on as
thou hast begun; but, by the grace of God, I'll look after thee. Gentlemen
of the jury, he is now modest enough; but time was when no man was so
ready at _bind your kings in chains and your nobles in fetters of iron_,
crying, _To your tents, O Israel!_ Gentlemen, for God's sake do not let us
be gulled twice in an age." The defendant was, of course, found guilty,
and thought himself lucky to escape with a fine of five hundred pounds,
and giving security for his good behavior for seven years.[128]

The lord chief justice, for his own demerits, and to thrust a thorn into
the side of Lord Keeper Guilford, was now raised to the peerage by the
title of "Baron Jeffreys of Wem"--the preamble of his patent narrating his
former promotions--averring that they were the reward of virtue, and after
the statement of his being appointed to preside in the Court of King's
Bench, adding, "Where at this very time he is faithfully and boldly doing
justice and affording protection to our subjects, according to law, in
consequence of which virtues we have thought him fit to be raised to the
peerage of this realm."[129]

He took his seat in the House of Lords on the first day of the meeting of
James's only Parliament, along with nineteen others either raised in the
peerage or newly created since the dissolution of the Oxford
Parliament--the junior being John Lord Churchill, afterwards Duke of
Marlborough. The journals show that Lord Jeffreys was very regular in his
attendance during the session, and as the house sat daily and still met at
the same early hour as the courts of law, he must generally have left the
business of the King's Bench to be transacted by the other judges. He was
now occupied day and night with plans for pushing the already disgraced
lord keeper from the woolsack.

I have already, in the life of Lord Guilford, related how these plans were
conducted in the cabinet, in the royal circle at Whitehall, and in the
House of Lords--particularly the savage treatment which the "staggering
statesman" received on the reversal of his decree in _Howard_ v. _Duke of
Norfolk_, after which he never held up his head more.[130] The probability
is, that although he clung to office so pusillanimously in the midst of
all sorts of slights and indignities, he would now have been forcibly
ejected if his death had not appeared to be near at hand, and if there had
not been a demand for the services of "Judge Jeffreys" in a scene very
different from the drowsy tranquillity of the Court of Chancery.

By the month of July, Monmouth's rebellion had been put down, and he
himself had been executed upon his parliamentary attainder without the
trouble of a trial: but all the jails in the West of England were crowded
with his adherents, and, instead of Colonel Kirke doing military execution
on more of them than had already suffered from his "lambs," it was
resolved that they should all perish by the flaming sword of
justice--which, on such an occasion, there was only one man fit to wield.

No assizes had been held this summer on the western circuit; but for all
the counties upon it a special commission to try criminals was now
appointed, at the head of which Lord Chief Justice Jeffreys was put; and
by a second commission, he, singly, was invested with the authority of
commander-in-chief over all his majesty's forces within the same limits.

On entering Hampshire he was met by a brigade of soldiers, by whom he was
guarded to Winchester. During the rest of his progress he never moved
without a military escort; he daily gave the word; orders for going the
rounds, and for the general disposal of the troops, were dictated by
him--sentinels mounting guard at his lodgings, and the officers on duty
sending him their reports.

I desire at once to save my readers from the apprehension that I am about
to shock their humane feelings by a detailed statement of the atrocities
of this bloody campaign in the west, the character of which is familiar to
every Englishman. But, as a specimen of it, I must present a short account
of the treatment experienced by Lady Lisle, with whose murder it
commenced.

She was the widow of Major Lisle, who had sat in judgment on Charles I.,
had been a lord commissioner of the great seal under Cromwell, and, flying
on the restoration, had been assassinated at Lausanne. She remained in
England, and was remarkable for her loyalty as well as piety. Jeffreys's
malignant spite against her is wholly inexplicable; for he had never had
any personal quarrel with her, she did not stand in the way of his
promotion, and the circumstance of her being the widow of a regicide
cannot account for his vindictiveness. Perhaps without any personal
dislike to the individual, he merely wished to strike terror into the west
by his first operation.

The charge against her, which was laid capitally, was that after the
battle of Sedgemoor she had harbored in her house one Hickes, who had been
in arms with the Duke of Monmouth--_she knowing of his treason_. In truth
she had received him into her house, thinking merely that he was
persecuted as a non-conformist minister, and the moment she knew whence he
came, she (conveying to him a hint that he should escape) sent her servant
to a justice of peace to give information concerning him. There was the
greatest difficulty even to show that Hickes had been in the rebellion,
and the judge was worked up to a pitch of fury by being obliged himself to
cross-examine a Presbyterian witness, who had showed a leaning against the
prosecution. But the principal traitor had not been convicted, and there
was not a particle of evidence to show the _scienter_, _i. e._, that the
supposed accomplice, at the time of the harboring was acquainted with the
treason. Not allowed the benefit of counsel, she herself, prompted by
natural good sense, took the legal objection that the principal traitor
ought first to have been convicted, "because, peradventure, he might
afterwards be acquitted as innocent after she had been condemned for
harboring him;" and she urged with great force to the jury, "that at the
time of the alleged offence she had been entirely ignorant of any
suspicion of Hickes having participated in the rebellion; that she had
strongly disapproved of it, and that she had sent her only son into the
field to fight under the royal banner to suppress it."

It is said by almost all the contemporary authorities, that thrice did the
jury refuse to find a verdict of guilty, and thrice did Lord Chief Justice
Jeffreys send them back to reconsider their verdict. In the account of the
proceeding in the State Trials, which has the appearance of having been
taken in short hand, and of being authentic, the repeated sending back of
the jury is not mentioned; but enough appears to stamp eternal infamy on
Jeffreys, if there were nothing more extant against him. After a most
furious summing up, "the jury withdrew, and staying out a while, the Lord
Jeffreys expressed a great deal of impatience, and said he wondered that
in so plain a case they would go from the bar, and would have sent for
them, with an intimation that, if they did not come quickly, he would
adjourn, and let them lie by it all night; but, after about half an hour's
stay, the jury returned, and the foreman addressed himself to the court
thus: 'My lord, we have one thing to beg of your lordship some directions
in before we can give our verdict: we have some doubt whether there be
sufficient evidence that she knew Hickes to have been in the army.' _L. C.
J._--'There is as full proof as proof can be; but you are judges of the
proof; for my part, I thought there was no difficulty in it.'
_Foreman._--'My lord, we are in some doubt of it.' _L. C. J._--'I cannot
help your doubts; was there not proved a discourse of the battle and the
army at supper time?' _Foreman._--'But, my lord, we are not satisfied that
she had notice that Hickes was in the army.' _L. C. J._--'I cannot tell
what would satisfy you. Did she not inquire of Dunne whether Hickes had
been in the army? and when he told her he did not know, she did not say
she would refuse him if he had been there, but ordered him to come by
night, by which it is evident she suspected it.... But if there was no
such proof, the circumstances and management of the thing is as full a
proof as can be. I wonder what it is you doubt of.' _Lady Lisle._--'My
lord, I hope----.' _L. C. J._--'You must not speak now.' The jury laid
their heads together near a quarter of an hour, and then pronounced a
verdict of guilty. _L. C. J._--'Gentlemen, I did not think I should have
had any occasion to speak after your verdict; but finding some hesitancy
and doubt among you, I cannot but say I wonder it should come about; for I
think in my conscience the evidence was as full and plain as could be, and
if I had been among you, and she had been my own mother, I should have
found her guilty.'"

He passed sentence upon her with great _sang froid_, and, I really
believe, would have done the same had she been the mother that bore
him--"That you be conveyed from hence to the place from whence you came,
and from thence you are to be drawn on a hurdle to the place of execution,
where your body is to be burnt alive till you be dead. And the Lord have
mercy on your soul."

The king refused the most earnest applications to save her life, saying
that he had promised Lord Chief Justice Jeffreys not to pardon her; but,
by a mild exercise of the prerogative, he changed the punishment of
burning into that of beheading, which she actually underwent. After the
Revolution, her attainder was reversed by act of Parliament, on the ground
that "the verdict was injuriously extorted by the menaces and violence and
other illegal practices of George Lord Jeffreys, Baron of Wem, then lord
chief justice of the King's Bench."

From Winchester, the "lord general judge" proceeded to Salisbury, where he
was obliged to content himself with whippings and imprisonments for
indiscreet words, the Wiltshire men not having actually joined in the
insurrection. But when he got into Dorsetshire, the county in which
Monmouth had landed, and where many had joined his standard, he was
fatigued, if not satiated, with shedding blood. Great alarm was excited,
and not without reason, by his being seen to laugh in church, both during
the prayers and sermon which preceded the commencement of business in the
hall--his smile being construed into a sign that he was about "to breathe
death like a destroying angel, and to sanguine his very ermine in blood."
His charge to the grand jury threw the whole county into a state of
consternation; for he said he was determined to exercise the utmost rigor
of the law, not only against principal traitors, but all aiders and
abettors, who, by any expression, had encouraged the rebellion, or had
favored the escape of any engaged in it, however nearly related to them,
unless it were the harboring of a husband by a wife, which the wisdom of
our ancestors permitted, because she had sworn to obey him.

Bills of indictment for high treason were found by the hundred, often
without evidence, the grand jury being afraid that, if they were at all
scrupulous, they themselves might be brought in "aiders and abettors." It
happened, curiously enough, that as he was about to arraign the prisoners,
he received news, by express, that the Lord Keeper Guilford had breathed
his last at Wroxton, in Oxfordshire. He had little doubt that he should
himself be the successor, and very soon after, by a messenger from
Windsor, he received assurances to that effect, with orders "to finish the
king's business in the west." Although he had no ground for serious
misgivings, he could not but feel a little uneasy at the thought of the
intrigues which in his absence might spring up against him in a corrupt
court, and he was impatient to take possession of his new dignity. But
what a prospect before him, if all the prisoners against whom there might
be indictments, here and at other places, should plead not guilty, and
_seriatim_ take their trials! He resorted to an expedient worthy of his
genius by openly proclaiming, in terms of vague promise but certain
denunciation, that "if any of those indicted would relent from their
conspiracies, and plead guilty, they should find him to be a merciful
judge; but that those who put themselves on their trials, (which the law
mercifully gave them all in strictness a right to do,) if found guilty,
would have very little time to live; and, therefore, that such as were
conscious they had no defence, had better spare him the trouble of trying
them."

He was at first disappointed. The prisoners knew the sternness of the
judge, and had some hope from the mercy of their countrymen on the jury.
The result of this boldness is soon told. He began on a Saturday morning,
with a batch of thirty. Of these, only one was acquitted for want of
evidence, and the same evening he signed a warrant to hang thirteen of
those convicted on the Monday morning, and the rest the following day. An
impressive defence was made by the constable of Chardstock, charged with
supplying the Duke of Monmouth's soldiers with money; whereas they had
actually robbed him of a considerable sum which he had in his hands for
the use of the militia. The prisoner having objected to the competency of
a witness called against him, "Villain! rebel!" exclaimed the judge,
"methinks I see thee already with a halter about thy neck." And he was
specially ordered to be hanged the first, my lord jeeringly declaring
"that if any with a knowledge of the law came in his way, he should take
care to _prefer them_!"

On the Monday morning, the court sitting rather late on account of the
executions, the judge, on taking his place, found many applications to
withdraw the plea of not guilty, and the prisoners pleaded guilty in great
numbers; but his ire was kindled, and he would not even affect any
semblance of mercy. Two hundred and ninety-two more received judgment to
die, and of these seventy-four actually suffered--some being sent to be
executed in every town, and almost in every village, for many miles round.
While the whole county was covered with the gibbeted quarters of human
beings, the towns resounded with the cries of men, and even of women and
children, who were cruelly whipped for sedition, on the ground that by
words or looks they had favored the insurrection.

Jeffreys next proceeded to Exeter, where one John Foweracres, the first
prisoner arraigned, had the temerity to plead not guilty, and being
speedily convicted, was sent to instant execution. This had the desired
effect; for all the others confessed, and his lordship was saved the
trouble of trying them. Only thirty-seven suffered capitally in the county
of Devon, the rest of the two hundred and forty-three against whom
indictments were found being transported, whipped, or imprisoned.

Somersetshire afforded a much finer field for indulging the propensities
of the chief justice, as in this county there had not only been a
considerable rising of armed men for Monmouth, but processions, in which
women and children had joined, carrying ribbons, boughs, and garlands to
his honor. There were five hundred prisoners for trial at Taunton alone.
Jeffreys said in his charge to the grand jury, "it would not be his fault
if he did not purify the place." The first person tried before him here
was Simon Hamling, a dissenter of a class to whom the judge bore a
particular enmity. In reality, the accused had only come to Taunton,
during the rebellion, to warn his son, who resided there, to remain
neuter. Conscious of his innocence, he insisted on pleading not guilty; he
called witnesses, and made a resolute defence, which was considered great
presumption. The committing magistrate, who was sitting on the bench, at
last interposed and said, "There must certainly be some mistake about the
individual." _Jeffreys._--"You have brought him here, and, if he be
innocent, his blood be upon your head." The prisoner was found guilty, and
ordered for execution next morning. Few afterwards gave his lordship the
trouble of trying them, and one hundred and forty-three are said here to
have been ordered for execution, and two hundred and eighty-four to have
been sentenced to transportation for life. He particularly piqued himself
upon his _bon mot_ in passing sentence on one Hucher, who pleaded, in
mitigation, that, though he had joined the Duke of Monmouth, he had sent
important information to the king's general, the Earl of Feversham. "You
deserve a double death," said the impartial judge; "one for rebelling
against your sovereign, and the other for betraying your friends."

He showed great ingenuity in revenging himself upon such as betrayed any
disapprobation of his severities. Among these was Lord Stawell, who was so
much shocked with what he had heard of the chief justice, that he refused
to see him. Immediately after, there came forth an order that Colonel
Bovet, of Taunton, a friend to whom this cavalier nobleman had been much
attached, should be executed at Cotheleston, close by the house where he
and Lady Stawell and his children then resided.

A considerable harvest here arose from compositions levied upon the
friends of twenty-six young virgins who presented the invader with colors,
which they had embroidered with their own hands. The fund was ostensibly
for the benefit of "the queen's maids of honor," but a strong suspicion
arose that the chief justice participated in bribes for these as well as
other pardons. He thought that his _peculium_ was encroached upon by a
letter from Lord Sunderland, informing him of "the king's pleasure to
bestow one thousand convicts on several courtiers, and one hundred on a
favorite of the queen--security being given that the prisoners should be
enslaved for ten years in some West India island." In his remonstrance he
said that "these convicts would be worth ten or fifteen pounds apiece,"
and, with a view to his own claim, returned thanks for his majesty's
gracious acceptance of his services. However, he was obliged to submit to
the royal distribution of the spoil.

Where the king did not personally interfere, Jeffreys was generally
inexorable if he did not himself receive the bribe for a pardon. Kiffin, a
Nonconformist merchant, had agreed to give three thousand pounds to a
courtier for the pardon of two youths, his grandsons, who had been in
Monmouth's army; but the chief justice would listen to no circumstances of
mitigation, as another was to pocket the price of mercy. Yet, to a buffoon
who attended him on the circuit and made sport by his mimicry, in an hour
of revelry at Taunton, he tossed the pardon of a rich culprit, expressing
a hope "that it might turn to good account."

The jails at Taunton being incapable of containing all the prisoners, it
was necessary to adjourn the commission to Wells, where the same horrible
scenes were again acted, notwithstanding the humane exertions of that most
honorable man, Bishop Ken, who afterwards, having been one of the seven
bishops prosecuted by King James, resigned his see at the Revolution,
rather than sign the new tests.

The Cornishmen had all remained loyal, and the city of Bristol[131] only
remained to be visited by the commission. There were not many cases of
treason here, but Jeffreys had a particular spite against the corporation
magistrates, because they were supposed to favor dissenters, and he had
them very much in his power by a discovery he made, that they had been in
the habit of having in turn assigned to them prisoners charged with
felony, whom they sold for their own benefit to be transported to
Barbadoes. In addressing the grand jury, (while he complained of a fit of
the stone, and was seemingly under the excitement of liquor,) he said,--

"I find a special commission is an unusual thing here, and relishes very
ill; nay, the very women storm at it, for fear we should take the upper
hand of them too; for by-the-bye, gentlemen, I hear it is much in fashion
in this city for the women to govern and bear sway." Having praised the
mild and paternal rule of King James, he thus proceeded: "On the other
hand, up starts a puppet prince, who seduces the mobile into rebellion,
into which they are easily bewitched; for I say rebellion is like the sin
of witchcraft. This man, who had as little title to the crown as the least
of you, (for I hope you are all legitimate,) being overtaken by justice,
and by the goodness of his prince brought to the scaffold, he has the
confidence, (good God, that men should be so impudent!) to say that God
Almighty did know with what joyfulness he did die, (a traitor!) Great God
of heaven and earth! what reason have men to rebel? But, as I told you,
rebellion is like the sin of witchcraft: Fear God and honor the king is
rejected for no other reason, as I can find, but that it is written in St.
Peter. Gentlemen, I must tell you I am afraid that this city hath too many
of these people in it, and it is your duty to find them out. Gentlemen, I
shall not stand complimenting with you; I shall talk with some of you
before you and I part, I tell you; I tell you I have brought a besom, and
I will sweep every man's door, whether great or small. Certainly, here are
a great many of those men whom they call Trimmers; a Whig is but a mere
fool to those; for a Whig is some sort of a subject in comparison of
these; for a Trimmer is but a cowardly and base-spirited Whig; for the
Whig is but the journeyman prentice that is hired and set over the
rebellion, whilst the Trimmer is afraid to appear in the cause." He then
opens his charge against the aldermen for the sale of convicts, and thus
continues: "Good God! where am I?--in Bristol? This city it seems claims
the privilege of hanging and drawing among themselves. I find you have
more need of a special commission once a month at least. The very
magistrates, that should be the ministers of justice, fall out with one
another to that degree they will scarcely dine together; yet I find they
can agree for their interest if there be but a _kid_ in the case; for I
hear the trade of _kidnapping_ is much in request in this city. You can
discharge a felon or a traitor, provided they will go to Mr. Alderman's
plantation in the West Indies. Come, come, I find you stink for want of
rubbing. It seems the dissenters and fanatics fare well amongst you, by
reason of the favor of the magistrates; for example, if a dissenter who is
a notorious and obstinate offender comes before them, one alderman or
another stands up and says, _He is a good man_, (though three parts a
rebel.) Well, then, for the sake of Mr. Alderman, he shall be fined but
five shillings. Then comes another, and up stands another goodman
alderman, and says, _I know him to be an honest man_, (though rather worse
than the former.) Well, for Mr. Alderman's sake, he shall be fined but
half a crown; so _manus manum fricat_; you play the knave for me now, and
I will play the knave for you by and by. I am ashamed of these things;
but, by God's grace, I will mend them; for, as I have told you, I have
brought a brush in my pocket, and I shall be sure to rub the dirt wherever
it is, or on whomsoever it sticks." "Thereupon," says Roger North, "he
turns to the mayor, accoutred with his scarlet and furs, and gave him all
the ill names that scolding eloquence could supply; and so, with rating
and staring, as his way was, never left till he made him quit the bench
and go down to the criminal's post at the bar; and there he pleaded for
himself as a common rogue or thief must have done; and when the mayor
hesitated a little, or slackened his pace, he bawled at him, and stamping,
called for his guards, for he was still general by commission. Thus the
citizens saw their scarlet chief magistrate at the bar, to their infinite
terror and amazement."

Only three were executed for treason at Bristol; but Jeffreys looking at
the end of his campaign to the returns of the enemy killed, had the
satisfaction to find that they amounted to three hundred and thirty,
besides eight hundred prisoners ordered to be transported.[132]

He now hastened homewards to pounce upon the great seal. In his way
through Somersetshire, with a regiment of dragoons as his life-guards, the
mayor took the liberty to say that there were two Spokes who had been
convicted, and that one of these left for execution was not the one
intended to suffer, the other having contrived to make his escape, and
that favor might perhaps still be shown to him whom it was intended to
pardon. "No!" said the general-judge; "his family owe a life; he shall die
for his namesake!" To render such narratives credible, we must recollect
that his mind was often greatly disturbed by fits of the stone, and still
more by intemperance. Burnet, speaking of his behavior at this time,
says, "He was perpetually either drunk or in a rage, liker a fury than the
zeal of a judge."

I shall conclude my sketch of Jeffreys as a criminal judge with his
treatment of a prisoner whom he was eager to hang, but who escaped with
life. This was Prideaux, a gentleman of fortune in the west of England,
who had been apprehended on the landing of Monmouth, for no other reason
than that his father had been attorney general under Cromwell. A reward of
five hundred pounds, with a free pardon, was offered to any witnesses who
would give evidence against him; but none could be found, and he was
discharged. Afterwards, two convicts were prevailed upon to say that they
had seen him take some part in the insurrection, and he was again cast
into prison. His friends, alarmed for his safety, though convinced of his
innocence, tried to procure a pardon for him, when they were told "that
nothing could be done for him, as the king had given him to the chief
justice," (the familiar phrase for the grant of an estate about to be
forfeited.) A negotiation was then opened with Jennings, the avowed agent
of Jeffreys for the sale of pardons, and the sum of fifteen thousand
pounds was actually paid to him by a banker for the deliverance of a man
whose destruction could not be effected by any perversion of the
formalities of law.[133]

There is to be found only one defender of these atrocities. "I have indeed
sometimes thought," says the author of A Caveat against the Whigs, "that
in Jeffreys's western circuit justice went too far before mercy was
remembered, though there was not above a fourth part executed of what
were convicted. But when I consider in what manner several of those lives
then spared were afterwards spent, I cannot but think a little more _hemp_
might have been usefully employed upon that occasion."[134]

A great controversy has arisen, "who is chiefly to be blamed--Jeffreys or
James?" Sheffield, Duke of Buckingham, declares that "the king never
forgave the cruelty of the judge in executing such multitudes in the west
against his express orders." And reliance is placed by Hume on the
assertion of Roger North, that his brother, the lord keeper, going to the
king and moving him "to put a stop to the fury which was in no respect for
his service, and would be counted a carnage, not law or justice, orders
went to mitigate the proceedings."

I have already demonstrated that this last assertion is a mere
invention,[135] and though it is easy to fix deep guilt on the judge, it
is impossible to exculpate the monarch. Burnet says that James "had a
particular account of his proceedings writ to him every day, and he took
pleasure to relate them in the drawing-room to foreign ministers, and at
his table, calling it Jeffreys's campaign; speaking of all he had done in
a style that neither became the majesty nor the mercifulness of a great
prince." Jeffreys himself, (certainly a very suspicious witness,) when in
the Tower, declared to Tutchin that "his instructions were much more
severe than the execution of them; and that at his return he was snubbed
at court for being too merciful." And to Dr. Scott, the divine who
attended him on his death bed, he said, "Whatever I did then I did by
express orders; and I have this further to say for myself, that I was not
half bloody enough for him who sent me thither." We certainly know from a
letter written to him by the Earl of Sunderland at Dorchester, that "the
king approved entirely of all his proceedings." And though we cannot
believe that he stopped short of any severity which he thought would be of
service to himself, there seems no reason to doubt (if that be any
palliation) that throughout the whole of these proceedings his object was
to please his master, whose disposition was now most vindictive, and who
thought that, by such terrible examples, he should secure to himself a
long and quiet reign.[136]

The two were equally criminal,[137] and both had their reward. But in the
first instance, and till the consequences of such wickedness and folly
began to appear, they met each other with mutual joy and congratulations.
Jeffreys returning from the west, by royal command stopped at Windsor
Castle. He arrived there on the 28th of September; and after a most
gracious reception, the great seal was immediately delivered to him with
the title of lord chancellor.

We learn from Evelyn that it had been three weeks in the king's personal
custody. "About six o'clock came Sir Dudley North and his brother Roger
North, and brought the great seal from my lord keeper, who died the day
before. The king went immediately to council, every body guessing who was
most likely to succeed this great officer; most believed it would be no
other than Lord Chief Justice Jeffreys, who had so rigorously prosecuted
the late rebels, and was now gone the western circuit to punish the rest
that were secured in the several counties, and was now near upon his
return."

The London Gazette of October 1, 1685, contains the following notice:

"_Windsor, Sept. 28._

"His majesty taking into his royal consideration the many eminent and
faithful services which the Right Honorable George Lord Jeffreys, of Wem,
lord chief justice of England, has rendered the crown, as well in the
reign of the late king, of ever blessed memory, as since his majesty's
accession to the throne, was pleased this day to commit to him the custody
of the great seal of England, with the title of lord chancellor."

The new lord chancellor, having brought the great seal with him from
Windsor to London, had near a month to prepare for the business of the
term.

He had had only a very slender acquaintance with Chancery proceedings, and
he was by no means thoroughly grounded in common-law learning; but he now
fell to the study of equity pleading and practice, and though exceedingly
inferior to his two immediate predecessors in legal acquirements, his
natural shrewdness was such that, when entirely sober, he contrived to
gloss over his ignorance of technicalities, and to arrive at a right
decision. He was seldom led into temptation by the occurrence of cases in
which the interests of political parties, or religious sects, were
concerned; and, as an equity judge, the multitude rather regarded him with
favor.

The public and the profession were much shocked to see such a man at the
head of the law; but as soon as he was installed in his office, there were
plenty ready enough to gather round him, and, suppressing their real
feelings, to load him with flattery and to solicit him for favors.

Evelyn, who upon his appointment as chief justice, describes him as "most
ignorant, but most daring," now assiduously cultivated his notice; and,
having succeeded in getting an invitation to dine with him, thus speaks of
him:

"_31st Oct., 1685._

"I dined at our great Lord Chancellor Jeffreys's, who used me with much
respect. This was the late chief justice, who had newly been the western
circuit to try the Monmouth conspirators, and had formerly done such
severe justice amongst the obnoxious in Westminster Hall, for which his
majesty dignified him by creating him first a baron, and now lord
chancellor; is of an assured and undaunted spirit, and has served the
court interest on all hardiest occasions; is of nature civil, and a slave
of the court."

The very first measure which James proposed to his new chancellor was,
literally, the hanging of an alderman. He was still afraid of the mutinous
spirit of the city, which, without some fresh terrors, might again break
out, although the charters were destroyed; and no sufficient atonement had
yet been made for the hostility constantly manifested by the metropolis to
the policy of his family for half a century. His majesty proposed that
Alderman Clayton, a very troublesome agitator, should be selected as the
victim. The chancellor agreed that "it was very fit an example should be
made, as his majesty had graciously proposed; but if it were the same
thing to his majesty, he would venture to suggest a different choice.
Alderman Clayton was a bad subject, but Alderman Cornish was still more
troublesome, and more dangerous." The king readily acquiesced, and
Alderman Cornish was immediately brought to trial before a packed jury,
and executed on a gibbet erected in Cheapside, on pretence that some
years before he had been concerned in the Ryehouse plot. The apologists of
Jeffreys say (and as it is the only alleged instance of his gratitude I
have met with, I have great pleasure in recording it) that he was induced
to save Sir Robert Clayton from recollecting that this alderman had been
his pot companion, and had greatly assisted him in obtaining the office of
common serjeant.

Monmouth's rebellion in England, and Argyle's in Scotland, being put down,
and the city of London reduced to subjection, James expressed an opinion,
in which the chancellor concurred, that there was no longer any occasion
to disguise the plan of governing by military force, and of violating at
pleasure the solemn acts of the legislature. Parliament reassembled on the
9th of November, when Jeffreys took his seat on the woolsack. The king
alone (as had been concerted) addressed the two houses, and plainly told
them that he could rely upon "nothing but a good force of well disciplined
troops in constant pay," and that he was determined to employ "officers in
the army, not qualified by the late tests, for their employments."

When the king had withdrawn, Lord Halifax rose, and said, sarcastically,
"They had now more reason than ever to give thanks to his majesty, since
he had dealt so plainly with them, and discovered what he would be at."

This the chancellor thought fit to take as a serious motion, and
immediately put the question, as proposed by a noble lord, "that an humble
address be presented to his majesty to thank him for his gracious speech
from the throne." No one ventured to offer any remark, and it was
immediately carried, _nemine dissentiente_. The king returned a grave
answer to the address, "That he was much satisfied to find their
lordships were so well pleased with what he said, and that he would never
offer any thing to their house that he should not be convinced was for the
true interest of the kingdom."

But the lords very soon discovered the false position in which they had
placed themselves, and the bishops were particularly scandalized at the
thought that they were supposed to have thanked the king for announcing a
principle upon which Papists and Dissenters might be introduced into every
civil office, and even into ecclesiastical benefices.

Accordingly, Compton, Bishop of London, moved "that a day might be
appointed for taking his majesty's speech into consideration," and said
"that he spoke the united sentiments of the Episcopal bench when he
pronounced the test act the chief security of the established church."
This raised a very long and most animated debate, at which King James, to
his great mortification, was present. Sunderland, and the popishly
inclined ministers, objected to the regularity of the proceeding, urging
that, having given thanks for the speech, they must be taken to have
already considered it, and precluded themselves from finding fault with
any part of it. The lords Halifax, Nottingham, and Mordaunt, on the other
side, treated with scorn the notion that the constitution was to be
sacrificed to a point of form, and, entering into the merits of the
question, showed that if the power which the sovereign now, for the first
time, had openly claimed were conceded to him, the rights, privileges, and
property of the nation lay at his mercy.

At last the lord chancellor left the woolsack, and not only bitterly
attacked the regularity of the motion after a unanimous vote of thanks to
the king for his speech, but gallantly insisted on the legality and
expediency of the power of the sovereign to dispense with laws for the
safety and benefit of the state. No lord chancellor ever made such an
unfortunate exhibition. He assumed the same arrogant and overbearing tone
with which he had been accustomed from the bench to browbeat juries,
counsel, witnesses, and prisoners, and he launched out into the most
indecent personalities against his opponents. He was soon taught to know
his place, and that frowns, noise, and menaces would not pass for
arguments there. While he spoke he was heard with marked disgust by all
parts of the house; when he sat down, being required to retract his words
by those whom he had assailed, and finding all the sympathies of the House
against him, he made to each of them an abject apology, "and he proved by
his behavior that insolence, when checked, naturally sinks into meanness
and cowardice."

The ministerialists being afraid to divide the House, Monday following,
the 23d of November, was fixed for taking the king's speech into
consideration. But a similar disposition having been shown by the other
House, before that day Parliament was prorogued, and no other national
council met till the Convention Parliament, after the landing of King
William.

James, far from abandoning his plans, was more resolute to carry them into
effect. The Earl of Rochester, his own brother-in-law, and others who had
hitherto stood by him, having in vain remonstrated against his madness,
resigned their offices; but Jeffreys still recklessly pushed him forward
in his headlong career. In open violation of the test act, four Catholic
lords were introduced into the cabinet, and one of them, Lord Bellasis,
was placed at the head of the treasury in the room of the Protestant Earl
of Rochester. Among such colleagues the lord chancellor was contented to
sit in council, and the wonder is that he did not follow the example of
Sunderland and other renegades, who at this time, to please the king,
professed to change their religion, and were reconciled to the church of
Rome. Perhaps, with his peculiar sagacity, Jeffreys thought it would be a
greater sacrifice in the king's eyes to appear to be daily wounding his
conscience by submitting to measures which he must be supposed inwardly to
condemn.

As a grand _coup d'état_, he undertook to obtain a solemn decision of the
judges in favor of the dispensing power,[138] and for this purpose a
fictitious action was brought against Sir Edward Hales, the lieutenant of
the Tower, an avowed Roman Catholic, in the name of his coachman, for
holding an office in the army without having taken the oath of supremacy,
or received the sacrament according to the rites of the church of England,
or signed the declaration against transubstantiation. Jeffreys had put the
great seal to letters patent, authorizing him to hold the office without
these tests, "_non obstante_" the act of Parliament. This dispensation was
pleaded in bar of the action, and upon a demurrer to the plea, after a
sham argument by counsel, all the judges except one (Baron Street) held
the plea to be sufficient, and pronounced judgment for the defendant. It
was now proclaimed at court that the law was not any longer an obstacle to
any scheme that might be thought advisable.

The Earl of Castlemaine was sent to Rome, regularly commissioned as
ambassador to his holiness the pope, a papal nuncio being reciprocally
received at St. James's. But assuming that religion was not embraced in
the negotiations between the two courts, however impolitic the proceeding
might be, I do not think that the king and the chancellor are liable to be
blamed, as they have been by recent historians, for having in this
instance violated acts of Parliament. If all those are examined which had
passed from the commencement of the reformation down to the "Bill of
Rights," it will probably be found that none of them can be applied to a
mere diplomatic intercourse with the pope, however stringent their
provisions may be against receiving bulls or doing any thing in derogation
of the king's supremacy.[139]

There can be no doubt of the illegality of the next measure of the king
and the chancellor. The Court of High Commission was revived with some
slight modification, although it had been abolished in the reign of
Charles I. by an act of Parliament, which forbade the erection of any
similar court; and Jeffreys, having deliberately put the great seal to the
patent creating this new arbitrary tribunal, undertook to preside in it.
The commissioners were vested with unlimited jurisdiction over the church
of England, and were empowered, even in cases of suspicion, to proceed
inquisitorially, like the abolished court, "_notwithstanding any law or
statute to the contrary_." The object was to have all ecclesiastics under
complete control, lest any of them should oppose the intended innovations
in religion.[140]

Jeffreys selected as his first victims, Sharp, rector of St. Giles's,
called the "railing parson," who had made himself very obnoxious to the
government by inveighing against the errors of Popery--and Compton, Bishop
of London, his diocesan, who had raised the storm against the dispensing
power in the House of Lords. A mandate was issued to the bishop to suspend
the rector, and this being declined on the ground that no man can be
lawfully condemned till he has been heard in his defence, both were
summoned before the high commission.

The bishop appearing, and being asked by the chancellor why he had not
obeyed the king's orders by suspending Dr. Sharp, prayed time to prepare
his defence, as his counsel were on the circuit, and he begged to have a
copy of the commission. A week's time was given; but as to the commission,
he was told "all the coffee-houses had it for a penny." On the eighth day
the business was resumed; but the bishop still said he was unprepared,
having great difficulty to procure a copy of the commission; when the
chancellor made him a bantering apology. "My lord, in telling you our
commission was to be seen in every coffee-house, I did not speak with any
design to reflect on your lordship, as if you were a haunter of
coffee-houses. I abhor the thoughts of it!" A further indulgence of a
fortnight was granted.

At the day appointed, the bishop again appeared with four doctors of the
civil law, who were so frightened, that they hardly dared to say a word
for him; but he himself firmly, though mildly, argued, "that he had acted
_jurisperitorum consilio_, and could not have had any bad motive; that he
should not have been justified in obeying an illegal order; that he had
privately recommended to Dr. Sharp not to preach; that this advice had
been followed, so that the king's wish was complied with; and that if he
had committed any fault, he ought to be tried for it before his archbishop
and brother bishops."

Several of the commissioners were inclined to let him off with an
admonition; but Jeffreys obtained and pronounced sentence of _suspension
during the king's pleasure_, both on the bishop and the rector.[141]

There was another political trial where justice was done to the accused,
although Jeffreys presided at it. A charge was brought against Lord
Delamere, the head of an ancient family in Cheshire, that he had tried to
excite an insurrection in that county in aid of Monmouth's rebellion. An
indictment for high treason being found against him, he was brought to
trial upon it before Jeffreys, as lord high steward, and thirty
peers-triers. The king was present, and was very desirous of a conviction,
as Lord Delamere, when a member of the House of Commons, had taken an
active part in supporting the exclusion bill.

Jeffreys did his best to gratify this wish. According to the habit he had
lately acquired in the west, he at first tried to induce the noble
prisoner to confess, in the hope of pardon "from the king's known
clemency." "My lord," said he, "if you are conscious to yourself that you
are guilty of this heinous crime, give glory to God, make amends to his
vicegerent the king, by a plain and full discovery of your guilt, and do
not, by an obstinate persisting in the denial of it, provoke the just
indignation of your prince, who has made it appear to the world that his
inclinations are rather to show mercy than inflict punishment."

Lord Delamere, to ease his mind from the anxiety to know whether the man
who so spoke was to pronounce upon his guilt or innocence, said, "I beg
your grace would please to satisfy me whether your grace be one of my
judges in concurrence with the rest of the lords." _L. H. Steward._--"No,
my lord, I am judge of the court, but I am none of your triers."[142]

A plea to the jurisdiction being put in, Lord Delamere requested his grace
to advise with the other peers upon it, as it was a matter of privilege.
_L. H. Steward._--"Good my lord, I hope you that are a prisoner at the bar
are not to give me direction who I should advise with, or how I should
demean myself here."

This plea was properly overruled, and not guilty pleaded, when his grace,
to prejudice the peers-triers against the noble prisoner as a notorious
exclusionist, delivered an inflammatory address to them before any
evidence was given.

To create a further prejudice, poor Lord Howard was called to repeat once
more his oft-told tale of the ryehouse plot, with which it was not
pretended that the prisoner had any connection. The charge in the
indictment was only supported by one witness, who himself had been in the
rebellion, and who swore that Lord Delamere, at a time and place which he
specified, had sent a message by him to Monmouth, asking a supply of money
to maintain ten thousand men to be levied in Cheshire against King James.
An _alibi_ was clearly proved. Yet his grace summed up for a conviction,
and took pains, "for the sake of the numerous and great auditory, that a
mistake in point of law might not go unrectified, which seemed to be urged
with some earnestness by the noble lord at the bar, _that there is a
necessity there should be two positive witnesses to convict a man of
treason_."

To the honor of the peerage of England, there was a unanimous verdict of
acquittal. James himself even allowed this to be right, wreaking all his
vengeance on the witness for not having given better evidence, and
swearing that he would have him first convicted of perjury, and then
hanged for treason. Jeffreys seems to have struggled hard to behave with
moderation on this trial; but his habitual arrogance from time to time
broke out, and must have created a disgust among the peers-triers very
favorable to the prisoner.

Jeffreys, still pretending to be a strong Protestant, eagerly assisted the
king in his mad attempt to open the church and the universities to the
intrusion of the Catholics. The fellows of Magdalen College, Oxford,
having disobeyed the royal mandate to elect, as head of their college,
Anthony Farmer, who was not qualified by the statutes, and was a man of
infamous character, and having chosen the pious and learned Hough, were
summoned before the Court of Ecclesiastical Commission. Jeffreys observed
that Dr. Fairfax, one of their number, had not signed the answer of the
college to the charge of disregarding the king's recommendation. Fairfax
asking leave to explain his reasons for declining to sign the answer,
Jeffreys thought that he was willing to conform, and exclaimed, "Ay, this
looks like a man of sense, and a good subject. Let's hear what he will
say." _Fairfax._--"I don't object to the answer, because it is the
vindication of my college: I go further; and as, according to the rules of
the ecclesiastical courts, a libel is given to the party that he may know
the grounds of his accusation, I demand that libel; for I do not know
otherwise wherefore I am called here, and besides, this affair should be
discussed in Westminster Hall." _Jeffreys._--"You are a doctor of
_divinity_, not of _law_." _Fairfax._--"By what authority do you sit
here?" _Jeffreys._--"Pray, what commission have you to be so impudent in
court? This man ought to be kept in a dark room. Why do you suffer him
without a guardian? Why did you not bring him to me? Pray let my officers
seize him."

Three members of the ecclesiastical commission were sent to Oxford to
represent that formidable body, and they annulled the election of Hough,
expelled the refractory fellows, and made Magdalen College, for a time, a
Popish establishment--the court in London, under the presidency of
Jeffreys, confirming all their proceedings.

The lord chancellor next involved the king in the prosecution of the seven
bishops, which, more than any other act of misrule during his reign, led
to his downfall.[143] On the 25th of April, 1688, a new "declaration of
indulgence" came out under the great seal; and, that it might be the more
generally known and obeyed, an order was sent from the council to all
bishops in England, enjoining that it should be read by the clergy in all
churches and chapels within their dioceses during divine service. A
petition, signed by Sancroft, the archbishop, and six other prelates, was
laid before the king, praying in respectful language that the clergy might
be excused from reading the declaration; not because they were wanting in
duty to the sovereign, or in tenderness to the dissenters, but because it
was founded upon the dispensing power, which had often been declared
illegal in Parliament, and on that account they could not, in prudence,
honor, or conscience, be such parties to it as the reading of it in the
church would imply.

Even the Earl of Sunderland and Father Peter represented to the king the
danger of arraying the whole church of England against the authority of
the crown, and advised him that the bishops should merely be admonished to
be more compliant. But with the concurrence of Jeffreys he resolved to
visit them with condign punishment, and they were ordered to appear before
the council, with a view to obtain evidence against them, as the petition
had been privately presented to the king. When they entered the council
chamber, Jeffreys said to them, "Do you own the petition?" After some
hesitation, the archbishop confessed that he wrote it, and the bishops,
that they signed it. _Jeffreys._--"Did you publish it?" They, thinking he
referred to the _printing_ of it, of which the king had loudly complained,
denied this very resolutely; but they admitted that they had delivered it
to the king at Whitehall palace, in the county of Middlesex. This was
considered enough to fix them with a publication, in point of law, of the
supposed libel; and Jeffreys, after lecturing them on their disloyalty,
required them to enter into a recognizance to appear before the Court of
King's Bench, and answer the high misdemeanor of which they were guilty.
They insisted that, according to the privileges of the House of Peers, of
which they were members, they could not lawfully be committed, and were
not bound to enter into the required recognizance. Jeffreys threatened to
commit them to the Tower as public delinquents. _Archbishop._--"We are
ready to go whithersoever his majesty may be pleased to send us. We hope
the King of kings will be our protector and our judge. We fear nought from
man; and having acted according to law and our consciences, no punishment
shall ever be able to shake our resolutions."

If this struggle could have been foreseen, even Jeffreys would have shrunk
from the monstrous impolicy of sending these men to jail, on what would be
considered the charge of temperately exercising a constitutional right in
defence of the Protestant faith, so dear to the great bulk of the nation;
but he thought it was too late to resile. He therefore, with his own hand,
drew a warrant for their commitment, which he signed, and handed round the
board. It was signed by all the councillors present, except Father Peter,
whose signature the king excused, to avoid the awkward appearance of
Protestant bishops being sent to jail by a Jesuit.

An account of their trial will be found in the next chapter; but there are
some circumstances connected with their acquittal in which Jeffreys
personally appears.

Seeing how he had acquired such immense favor, there were other lawyers
who tried to undermine him by his own arts. One of the most formidable of
these was Sir John Trevor, master of the rolls, who, some authors say,
certainly would have got the great seal had James remained longer on the
throne, but whom Jeffreys had hitherto kept down by reversing his decrees.
The chancellor's alarm was now excited by a report that Sir William
Williams (who, from being Speaker of the last Westminster Parliament, and
fined ten thousand pounds on the prosecution of the Duke of York, was
become the caressed solicitor general to James II.) had a positive promise
of the great seal if he could obtain a conviction of the seven
bishops.[144] His brutal conduct to them during the whole trial, which was
no doubt reported to Jeffreys, would confirm the rumor and increase his
apprehensions. The jury having sat up all night without food, fire, or
candle, to consider of their verdict, the lord chancellor had, while they
were still enclosed, come down to Westminster Hall next morning, and taken
his seat in court. When he heard the immense shout arise which soon made
the king tremble on Hounslow Heath, he smiled and hid his face in his
nosegay, "as much," observes the relater of the anecdote, "as to say, Mr.
Solicitor, I keep my seal."

However, the part he had taken in sending the bishops to the Tower had
caused such scandal, that the University of Oxford would not have him for
their chancellor, although, in the prospect of a vacancy, he had received
many promises of support. The moment the news arrived of the death of the
old Duke of Ormond, his grandson was elected to succeed him; and next day
a mandate coming from court to elect Lord Jeffreys, an answer was returned
that an election had already taken place, which could not be revoked.

Suspecting that things were now taking an unfavorable turn, he began
privately to censure the measures of the court, and to insinuate that the
king had acted against his advice, saying, "It will be found that I have
done the part of an honest man, but as for the judges they are most of
them rogues."

About this time he was present at an event which was considered more than
a counterpoise to recent discomfitures, but which greatly precipitated the
crisis by taking away the hope of relief by the rightful succession of a
Protestant heir. Being suddenly summoned to Whitehall, he immediately
repaired thither, and found that the queen had been taken in labor. Other
councillors and many ladies of quality soon arrived, and they were all
admitted into her bedchamber. Her majesty seems to have been much annoyed
by the presence of the lord chancellor. The king calling for him, he came
forward and stood on the step of the bed to show that he was there. She
then begged her consort to cover her face with his head and periwig; for
she declared "she could not be brought to bed, and have so many men look
on her." However, the fright may have shortened her sufferings; for James
III., or "the old pretender," very speedily made his appearance, and the
midwife having made the concerted signal that the child was of the
wished-for sex, the company retreated.

Considering the surmises which had been propagated ever since the queen's
pregnancy was announced, that it was feigned, and that a suppositious
child was to be palmed upon the world, Jeffreys was lamentably deficient
in duty to the king in not having recommended steps to convince the public
from the beginning, beyond all possibility of controversy, of the
genuineness of the birth. When the story of the "warming-pan" had taken
hold of the public mind, many witnesses were examined before the Privy
Council to disprove it, but it continued an article of faith with thorough
anti-Jacobites during the two succeeding reigns.[145]

The birth of a son, which the king had so ardently longed for, led to his
speedy overthrow. Instead of the intrigues between the discontented at
home and the Prince and Princess of Orange, hitherto regarded as his
successors, being put an end to, they immediately assumed a far more
formidable aspect. William, who had hoped in the course of a few years to
wield the energies of Britain against the dangerous ambition of Louis
XIV., saw that if he remained quiet he should with difficulty even retain
the circumscribed power of Stadtholder of the United Provinces. He
therefore gladly listened to the representations of those who had fled to
Holland to escape from the tyranny exercised in their native country, or
who sent secret emissaries to implore his aid; and he boldly resolved to
come to England--not as a military conqueror, but for their deliverance,
and to obtain the crown with the assent of the nation. That he and his
adherents might be protected against any sudden effort to crush them, a
formidable fleet was equipped in the Dutch ports, and a considerable army,
which had been assembled professedly for a different purpose, was ready
on a short notice to be embarked in it.

James, who had been amusing himself by making the pope godfather to his
son, and had listened with absolute incredulity to the rumors of the
coming invasion, suddenly became sensible of his danger, and to avert it
was willing to make any sacrifice to please his people. The slender merit
of the tardy, forced, and ineffectual concessions which were offered is
claimed respectively by the apologists of the king, of Jeffreys, and of
the Earl of Sunderland, but seems due to the last of the three. James's
infatuation was so transcendent,--he was so struck with judicial
blindness,--being doomed to destruction, he was so demented,--that, if let
alone, he probably would have trusted with confidence to his divine right
and the protection of the Virgin, even when William had landed at Torbay.
As far as I can discover, from the time when Jeffreys received the great
seal, he never originated any measures, wise or wicked, and without
remonstrance, he heartily coöperated in all those suggested by the king,
however illegal or mischievous they might be. I do not find the slightest
foundation for the assertion that, with all his faults, he had a regard
for the Protestant religion, which made him stand up in its defence. The
"Declaration of Indulgence," to which he put the great seal, might be
imputed to a love of toleration, (to which he was a stranger,) but what
can be said of the active part he took in the High Commission Court, and
in introducing Roman Catholics into the universities and into the church?
The Earl of Sunderland, though utterly unprincipled, was a man of great
discernment and courage; he could speak boldly to the king, and he had
joined in objecting to the precipitate measures for giving ascendancy to
his new religion, which had produced this crisis. His seemingly forced
removal from office he himself probably suggested, along with the other
steps now taken to appease the people.

Whoever might first propose the altered policy, Jeffreys was the
instrument for carrying it into effect, and thereby it lost all its grace
and virtue. He took off the suspension of the Bishop of London, and, by a
_supersedeas_ under the great seal, abolished the High Commission Court.
He annulled all the proceedings respecting Magdalen College, and issued
the necessary process for reinstating Dr. Hough and the Protestant
fellows. He put the great seal to a general pardon.

But the reaction was hoped for, above all, from the restoration of the
city charters. On the 2d of October he sent a flattering message to the
mayor and aldermen to come to Whitehall in the evening, that they might be
presented at court by "their old recorder." Here the king told them that
he was mightily concerned for the welfare of their body, and that at a
time when invasion threatened the kingdom, he was determined to show them
his confidence in their loyalty by restoring the rights of the city to the
state in which they were before the unfortunate _quo warranto_ proceedings
had been instituted in the late reign. Accordingly, on the following day a
meeting of the Common Council was called at Guildhall, and the lord
chancellor proceeded thither in his state carriage, attended by his
purse-bearer, mace-bearer, and other officers, and after a florid speech,
delivered them letters patent under the great seal, which waived all
forfeitures, revived all charters, and confirmed all liberties the city
had ever enjoyed under the king or any of his ancestors. Great joy was
manifested; but the citizens could not refrain from showing their
abhorrence of the man who brought these glad tidings, and on his return
they hissed him and hooted him, and gave him a foretaste of the violence
he was soon to experience from an English mob.

The forfeited and surrendered charters were likewise restored to the other
corporations in England. These popular acts, however, were generally
ascribed to fear, and the coalition of all parties, including the
preachers of passive obedience, to obtain a permanent redress of
grievances by force, continued resolute and unshaken.

When William landed, the frightful severities of Jeffreys in the west had
the effect of preventing the populace from flocking to his standard, but
he met with no opposition, and soon persons of great consideration and
influence sent in their adhesion to him.

When we read in history of civil commotions and foreign invasions, we are
apt to suppose that all the ordinary business of life was suspended. But
on inquiry, we find that it went on pretty much as usual, unless where
interrupted by actual violence. While the Prince of Orange was advancing
to the capital, and James was marching out to give him battle, if his army
would have stood true, the Court of Chancery sat regularly to hear
"exceptions" and "motions for time to plead;" and on the very day on which
the Princess Anne fled to Nottingham, and her unhappy father exclaimed, in
the extremity of his agony, "God help me! my own children have forsaken
me," the lord chancellor decided that "if an administrator pays a debt due
by bond before a debt due by a decree in equity, he is still liable to pay
the debt due by the decree."[146]

Change of dynasty was not yet talked of, and the cry was for "a free
Parliament." To meet this, the king resolved to call one in his own name;
and the last use which Jeffreys made of the great seal was by sealing
writs for the election of members of the House of Commons, who were
ordered to meet on the 15th of January following.

This movement only infused fresh vigor into the Prince of Orange, who now
resolved to bring matters to a crisis; and James, finding himself almost
universally deserted, as the most effectual way, in his judgment, of
annoying his enemies, very conveniently for them, determined to leave the
kingdom. Preparatory to this, he had a parting interview with Jeffreys, to
whom he did not confide his secret; but he obtained from him all the
parliamentary writs which had not been issued to the sheriffs, amounting
to a considerable number, and these, with his own hand, he threw into the
fire, so that a lawful Parliament might not be assembled when he was gone.
To increase the confusion, he required Jeffreys to surrender the great
seal to him,--having laid the plan of destroying it,--in the belief that
without it the government could not be conducted.

All things being prepared, and Father Peter and the Earl of Melfort having
been informed of his intentions, which he still concealed from Jeffreys,
on the night of the 10th of December, James, disguised, left Whitehall,
accompanied by Sir Edward Hales, whom he afterwards created Earl of
Tenterden. London Bridge (which they durst not cross) being the only one
then over the Thames, they drove in a hackney-coach to the Horse Ferry,
Westminster, and as they crossed the river with a pair of oars, the king
threw the great seal into the water, and thought he had sunk with it
forever the fortunes of the Prince of Orange. At Vauxhall they found
horses in readiness for them, and they rode swiftly to Feversham, where
they embarked for France.

Instead of narrating the adventures of the monarch, when he was
intercepted at Feversham, we must confine ourselves to what befell the
unhappy ex-chancellor. He heard early next morning of the royal flight,
and was thrown into a state of the greatest consternation. He was afraid
of punishment from the new government which was now to be established, and
being asked by a courtier if he had heard "what the _heads_ of the
Prince's declaration were," he answered, "I am sure that _my head_ is one,
whatever the rest may be." He dreaded still more the fury of the mob, of
which the most alarming accounts were soon brought him. In the existing
state of anarchy, almost the whole population of the metropolis crowded
into the streets in quest of intelligence; the excitement was unexampled;
there was an eager desire to prevent the king's evil councillors from
escaping along with him; and many bad characters, under a pretence of a
regard for the Protestant religion, took the opportunity to gratify their
love of violence and plunder.

The first object of vengeance was Father Peter; but it was found that, in
consequence of the information of the king's intentions conveyed to him
and the Earl of Melfort, they had secretly withdrawn the day before, and
were now in safety. The pope's nuncio was rescued from imminent peril by
the interposition of the lords of the Council, who had met, and,
exercising temporarily the powers of government, were striving to preserve
the public tranquillity.

The next victim demanded was Jeffreys, who (no one knowing that the great
seal had been taken from him) still went by the name of "the chancellor,"
and who, of all professing Protestants, was the most obnoxious to the
multitude. He retired early in the day from his house in Duke Street to
the obscure dwelling of a dependent in Westminster, near the river side,
and here, lying concealed, he caused preparations to be made for his
escape from the kingdom. It was arranged that a coal ship which had
delivered her cargo should clear out at the custom house as for her return
to Newcastle, and should land him at Hamburg.

To avoid, as he thought, all chance of being recognised by those who had
seen him in ermine or gold-embroidered robes, with a long white band under
the chin, his collar of S. S. round his neck, and on his head a
full-bottom wig, which had recently become the attribute of judicial
dignity, instead of the old-fashioned coif or black velvet cap,--he cut
off his bushy eyebrows, wont to inspire such terror, he put on the
worn-out dress of a common sailor, and he covered his head with an old
tarred hat that seemed to have weathered many a blast.

Thus disguised, as soon as it was dusk he got into a boat; and the state
of the tide enabling him to shoot London Bridge without danger, he safely
reached the coal ship lying off Wapping. Here he was introduced to the
captain and the mate, on whose secrecy he was told he might rely; but, as
they could not sail till next day, when he had examined his berth, he went
on board another vessel that lay at a little distance, there to pass the
night. If he had not taken this precaution, he would have been almost
immediately in the power of his enemies. The mate, without waiting to see
what became of him, hurried on shore, and treacherously gave information
to some persons who had been in pursuit of him, that he was concealed in
the Newcastle collier. They applied to justices of the peace in the
neighborhood for a warrant to arrest him, which was refused, on the ground
that no specific charge was sworn against him. They then went to the lords
of the council, whom they found sitting, and who actually gave them a
warrant to apprehend him for high treason, under the belief that the
safety of the state required his detention. Armed with this, they returned
to the coal ship in which he had taken his passage, but he was not there,
and the captain, a man of honor, baffled all their inquiries.

He slept securely in the vessel in which he had sought refuge; and had it
not been for the most extraordinary imprudence, leading to the belief that
he was fated speedily to expiate his crimes, he might have effected his
escape. Probably with a view of indulging more freely his habit of
intemperance, he next morning came ashore, and made his appearance at a
little alehouse bearing the sign of "The Red Cow," in Anchor and Hope
Alley, near King Edward's Stairs, Wapping, and called for a pot of ale.
When he had nearly finished it, still wearing his sailor's attire, with
his hat on his head, he was so rashly confident as to put his head out
from an open window to look at the passengers in the street.

I must prepare my readers for the scene which follows by relating, in the
words of Roger North, an anecdote of the behavior of Jeffreys to a suitor
in the heyday of his power and arrogance. "There was a scrivener of
Wapping brought to hearing for relief against a _bummery bond_.[147] The
contingency of losing all being showed, the bill was going to be
dismissed;[148] but one of the plaintiff's counsel said that the scrivener
was a strange fellow, and sometimes went to church, sometimes to
conventicles, and none could tell what to make of him; and it was thought
he was a trimmer. At that the chancellor fired; and 'A trimmer!' said he;
'I have heard much of that monster, but never saw one. Come forth, Mr.
Trimmer, turn you round, and let us see your shape,' and at that rate
talked so long that the poor fellow was ready to drop under him; but at
last the bill was dismissed with costs, and he went his way. In the hall
one of his friends asked him how he came off. 'Came off' said he; 'I am
escaped from the terrors of that man's face, which I would scarce undergo
again to save my life, and I shall certainly have the frightful impression
of it as long as I live.'"[149]

It happened, by a most extraordinary coincidence, that this very
scrivener was then walking through Anchor and Hope Alley on the opposite
side of the way, and immediately looking towards "The Red Cow," thought he
recollected the features of the sailor who was gazing across towards him.
The conviction then flashed upon his mind that this could be no other than
the lord chancellor who had so frightened him out of his wits before
pronouncing a decree in his favor about the "_bummery bond_." But hardly
believing his own senses, he entered the tap-room of the alehouse to
examine the countenance more deliberately. Upon his entrance, Jeffreys
must have recognized the "trimmer," for he coughed, turned to the wall,
and put the quart pot before his face. An immense multitude of persons
were in a few minutes collected round the door by the proclamation of the
scrivener that the pretended sailor was indeed the wicked Lord Chancellor
Jeffreys. He was now in the greatest jeopardy, for, unlike the usual
character of the English mob, who are by no means given to cruelty, the
persons here assembled were disposed at first to tear him limb from limb,
and he was only saved by the interposition of some of the more
considerate, who suggested that the proper course would be to take him
before the lord mayor.

The cry was raised, "To the lord mayor's!" but before he could be secured
in a carriage to be conveyed thither, they assaulted and pelted him, and
might have proceeded to greater extremities if a party of the train-bands
had not rescued him from their fury. They still pursued him all the way
with whips, and halters, and cries of "Vengeance! justice! justice!"
Although he lay back in the coach, he could still be discovered in his
blue jacket, and with his sailor's hat flapped down upon his face. The
lord mayor, Sir John Chapman, a nervous, timid man, who had stood in
tremendous awe of the lord chancellor, could not now see him, disguised as
a sailor, without trepidation; and instead of ordering him to stand at the
bar of his justice room, with much bowing and scraping, and many apologies
for the liberty he was using, requested that his lordship would do him the
honor to dine with him, as, it being now past twelve o'clock, he and the
lady mayoress were about to sit down to dinner. Jeffreys, though probably
with little appetite, was going to accept the invitation, when a gentleman
in the room exclaimed, "The lord chancellor is the lord mayor's prisoner,
not his guest, and now to harbor him is treason, for which any one,
however high, may have to answer with his own blood." The lord mayor
swooned away, and died (it is said of apoplexy) soon after.

The numbers and violence of the mob had greatly increased from the delay
in examining the culprit, and they loudly threatened to take the law into
their own hand. Some were for examining him before an alderman, and
leading him out by a back way for that purpose; but he himself showed most
prudence by advising that, without any previous examination, he should be
committed to the Tower for safe custody, and that two other regiments of
the train-bands should be ordered up to conduct him thither. In the
confusion, he offered to draw the warrant for his own commitment. This
course was followed, but was by no means free from danger, the mob defying
the matchlocks and pikes of the soldiers, and pressing round the coach in
which the noble prisoner was carried, still flourishing the whips and
halters, and expressing their determined resolution to execute summary
justice upon him for the many murders he had committed. Seeing the
imminent danger to which he was exposed, and possibly conscience struck
when he thought he was so near his end, he lost all sense of dignity and
all presence of mind. He held up his imploring hands, sometimes on one
side of the coach, and sometimes on the other, exclaiming, "For the Lord's
sake, keep them off! For the Lord's sake, keep them off!" Oldmixon, who
was an eye-witness of this procession, and makes loud professions of
compassion for malefactors, declares that he saw these agonizing alarms
without pity.

The difficulty was greatest in passing the open space on Tower Hill. But
at length the carriage passed the drawbridge, and the portcullis
descended. Within all was still. Jeffreys was courteously received by Lord
Lucas, recently appointed lieutenant, and in a gloomy apartment, which he
never more left, he reflected in solitude on the procession which had just
terminated, so different from those to which he had been accustomed for
some years on the first day of each returning term, when, attended by the
judges and all the grandees of the law, he had moved in state to
Westminster Hall, the envy and admiration of all beholders.

A regular warrant for his commitment was the same night made out by the
lords of the Council, and the next day a deputation from their body,
consisting of Lords North, Grey, Chandos and Ossulston, attended to
examine him at the Tower. Four questions were asked him. 1. "What he had
done with the great seal of England." He answered "that he had delivered
it to the king on the Saturday before at Mr. Cheffnel's, no person being
present, and that he had not seen it since." He was next asked, 2.
"Whether he had sealed all the writs for the Parliament, and what he had
done with them." "To the best of his remembrance," he said, "the writs
were all sealed and delivered to the king," (suppressing that he had seen
the king throw a great many of them in the fire.) 3. "Had he sealed the
several patents for the then ensuing year?" He declared "that he had
sealed several patents for the new sheriffs, but that he could not charge
his memory with the particulars." Lastly, he was asked "whether he had a
license to go out of the kingdom." And to this he replied, "that he had
several licenses to go beyond sea, which were all delivered to Sir John
Friend." He subscribed these answers with an affirmation that "they were
true upon his honor," and the lords withdrew.

But no sympathy did he meet with from any quarter, and he was now
reproachfully spoken of even by the king. The news of the outbreak against
him coming speedily to Feversham, the fugitive monarch, who then meditated
an attempt to remount his throne, thought that his chancellor might
possibly be accepted by the nation as a scape-goat, and laid upon him the
great errors of his reign. It happened, strangely enough, that the inn to
which James had been carried when captured off Sheerness, was kept by a
man on whom Jeffreys, for some supposed contempt of court, had imposed a
very heavy fine, which had not yet been levied. Complaining of this
arbitrary act to his royal guest,--who had admitted him to his presence,
and had asked him, in royal fashion, "his name, his age, and his
history,"--James desired him to draw a discharge as ample as he chose;
and, establishing a precedent, which has been often followed since, for
writing in a seemingly private and confidential document what is intended
afterwards to be communicated to the public, he subjoined to his signature
these remarkable words, which were immediately proclaimed in Feversham and
transmitted to London: "I am sensible that my lord chancellor hath been a
very ill man, and hath done very ill things."

Jeffreys was assailed by the press in a manner which showed how his
cruelties had brutalized the public mind. A poetical letter, addressed to
him, advising him to cut his own throat, thus concluded: "I am your
lordship's obedient servant in any thing of this nature. From the little
house over against Tyburn, where the people are almost dead with
expectation of you."

This was followed by "a letter from hell from Lord Ch----r Jeffreys to
L---- C---- B---- W----d." His "confession," hawked about the streets,
contained an exaggerated statement of all the bad measures of the latter
part of the preceding and of the present reign. Then came his "last will
and testament," commencing, "In the name of Ambition, the only god of our
setting and worshipping, together with Cruelty, Perjury, Pride, Insolence,
&c., I, George Jeffreys, being in sound and perfect memory, of high
commissions, _quo warrantos_, dispensations, pillorizations, floggations,
gibitations, barbarity, butchery, &c., do make my last will," &c. Here is
the concluding legacy: "Item, I order an ell and a half of fine cambric to
be cut into handkerchiefs for drying up all the wet eyes at my funeral;
together with half a pint of burnt claret for all the mourners in the
kingdom."

When he had been some weeks in confinement, he received a small barrel,
marked "Colchester oysters," of which, ever since his arrival in London
when a boy, he had been particularly fond. Seeing it, he exclaimed--"Well,
I have some friends left still;" but on opening it, the gift was--a
halter!

An actual serious petition was received by the lords of the council of
England from "the widows and fatherless children in the west," beginning,
"We, to the number of a thousand and more widows and fatherless children
of the counties of Dorset, Somerset, and Devon; our dear husbands and
tender fathers having been so tyrannously butchered and some transported;
our estates sold from us, and our inheritance cut off, by the severe and
brutish sentence of George Lord Jeffreys, now we understand in the Tower
of London, a prisoner," &c. After enumerating some of his atrocities, and
particularly dwelling upon his indecent speech (which I may not copy) to a
young lady who asked the life of her lover, convicted before him, the
petitioners thus concluded:--"These, with many hundred more tyrannical
acts, are ready to be made appear in the said counties by honest and
credible persons, and therefore your petitioners desire that the said
George Jeffreys, late lord chancellor, the vilest of men, may be brought
down to the counties aforesaid, where we the good women of the west shall
be glad to see him, and give him another manner of welcome than he had
there three years since."

Meanwhile, the great seal, the _clavis regni_, the emblem of sovereign
sway, which had been thrown into the Thames that it might never reach the
Prince of Orange, was found in the net of a fisherman near Lambeth, and
was delivered by him to the lords of the council, who were resolved to
place it in the hands of the founder of the new dynasty; and James, after
revisiting the capital and enjoying a fleeting moment of popularity, had
finally bid adieu to England, and was enjoying the munificent hospitality
of Louis at St. Germaine's.

The provisional government, in deference to the public voice, issued an
order for the more rigorous confinement of the ex-chancellor in the Tower,
and intimated a resolution that he should speedily be brought to trial
for his misdeeds; but, amidst the stirring events which rapidly followed,
he was allowed quietly to languish out the remainder of his miserable
existence. While the elections were proceeding for the Convention
Parliament--while the two houses were struggling respecting the
"abdication" or "desertion" of the throne--while men were occupied with
discussing the "declaration of rights"--while preparations were making for
the coronation of the new sovereigns--while curiosity was keenly alive in
watching their demeanor, and while alarms were spread by the adherence of
Ireland to the exiled king--the national indignation, which at first burst
forth so violently against the crimes of Jeffreys, almost entirely
subsided, and little desire was evinced to see him punished as he
deserved.

However, considerable sensation was excited by the news that he was no
more. He breathed his last in the Tower of London, on the 19th of April,
1689, at thirty-five minutes past four in the morning. Those who take a
vague impression of events, without attention to dates, may suppose, from
the crowded vicissitudes of his career, that he must have passed his grand
climacteric, but he was still only in the forty-first year of his age.

On the meeting of the Convention Parliament, attempts were made to attaint
the late Chancellor Jeffreys, to prevent his heirs from sitting in
Parliament, and to charge his estates with compensation to those whom he
had injured; but they all failed, and no mark of public censure was set
upon his memory beyond excepting him, with some other judges, from the act
of indemnity passed at the commencement of the new reign.

We have no very distinct account of him in domestic life. Having lost his
first wife, whom he had espoused so generously, within three months from
her death he again entered the married state. The object of his choice was
the widow of a Montgomeryshire gentleman, and daughter of Sir Thomas
Bludworth, who had been lord mayor of London, and for many years one of
the city representatives. I am sorry to say there was much scandal about
the second Lady Jeffreys, and she presented him prematurely with a
full-grown child. It is related that he was once disagreeably reminded of
this mistake: when cross-examining a flippant female, he said to her,
"Madam, you are very quick in your answers." "Quick as I am, Sir George,"
cried she, "I was not so quick as your lady." Even after the marriage she
is still said to have encouraged Sir John Trevor, M. R., and other lovers,
while her husband was indulging in his cups.

He had children by both his wives; but of these only one son grew up to
manhood, and survived him. This was John, the second Lord Jeffreys, who
has acquired celebrity only by having rivalled his father in the power of
drinking, and for having, when in a state of intoxication, interrupted the
funeral of Dryden, the poet. He was married, as we have seen, to the
daughter of the Earl of Pembroke, but dying in 1703, without male issue,
the title of Jeffreys happily became extinct. He soon dissipated large
estates, which his father, by such unjustifiable means, had acquired in
Shropshire, Buckinghamshire, and Leicestershire.

In his person Jeffreys was rather above the middle stature, his complexion
(before it was bloated by intemperance) inclining to fair, and he was of a
comely appearance. There was great animation in his eye, with a twinkle
which might breed a suspicion of insincerity and lurking malice. His brow
was commanding, and he managed it with wonderful effect, whether he
wished to terrify or to conciliate. There are many portraits of him, all,
from his marked features, bearing a great resemblance to each other, and,
it may be presumed, to the original.

"He had a set of banterers for the most part near him, as in old time
great men kept fools to make them merry. And these fellows, abusing one
another and their betters, were a regale to him." But there can be no
doubt that he circulated in good society. He was not only much at court,
but he exchanged visits with the nobility and persons of distinction in
different walks of life. In the social circle, being entirely free from
hypocrisy and affectation, from haughtiness and ill-nature, laughing at
principle, courting a reputation for profligacy, talking with the utmost
freedom of all parties and all men--he disarmed the censure of the world,
and, by the fascination of his manners, while he was present, he threw an
oblivion over his vices and his crimes.

On one occasion, dining in the city with Alderman Duncomb, the lord
treasurer and other great courtiers being of the party, they worked
themselves up to such a pitch of loyalty by bumpers to "confusion to the
Whigs," that they all stripped to their shirts, and were about to get upon
a signpost to drink the king's health, when they were accidentally
diverted from their purpose, and the lord chancellor escaped the fate
which befell Sir Charles Sedley, of being indicted for indecently exposing
his person in the public streets. But this frolic brought upon him a
violent fit of the stone, which nearly cost him his life.

As a civil judge he was by no means without high qualifications, and in
the absence of any motive to do wrong, he was willing to do right. He had
a very quick perception, a vigorous and logical understanding, and an
impressive eloquence.

When quite sober, he was particularly good as a Nisi Prius judge. His
summing up, in what is called "the Lady Ivy's case"--an ejectment between
her and the dean and chapter of St. Paul's to recover a large estate at
Shadwell--is most masterly. The evidence was exceedingly complicated, and
he gives a beautiful sketch of the whole, both documentary and parol; and,
without taking the case from the jury, he makes some admirable
observations on certain deeds produced by the Lady Ivy, which led to the
conclusion that they were forged, and to a verdict for the dean and
chapter.[150]

Considering the systematic form which equity jurisprudence had assumed
under his two immediate predecessors, Jeffreys must have been very poorly
furnished for presiding in chancery. He had practised little before these
judges, and none of their decisions were yet in print; so that if he had
been so inclined, he had not the opportunity to make himself familiar with
the established practice and doctrines of the court.

Although he must often have betrayed his ignorance, yet with his
characteristic boldness and energy he contrived to get through the
business without any signal disgrace, and among all the invectives,
satires, and lampoons by which his memory is blackened, I find little said
against his decrees. He did not promulgate any body of new orders
according to recent custom; but, while he held the great seal, he issued
separate orders from time to time, some of which were very useful. He
first put an end to a very oppressive practice, by which a plaintiff,
having filed a frivolous and vexatious bill, might dismiss it on paying
merely twenty shillings costs, and he directed that the defendant should
be allowed all the costs he had incurred, to be properly ascertained by an
officer of the court. He then checked the abuse of staying actions at law
for the examination of witnesses abroad, by requiring, before a commission
to examine them issued, an affidavit specifying the names of the
witnesses, and the facts they were expected to prove. By subsequent orders
which he framed, vexatious applications for re-hearings were guarded
against, and an attempt was made to get rid of what has ever been the
opprobrium of the court--controversies about settling the minutes of a
decree after it has been pronounced.

I have discovered one benevolent opinion of this cruel judge, and strange
to say, it is at variance with that of the humane magistrates who have
adorned Westminster Hall in the nineteenth century. "The prisoner's
convict bill" was condemned and opposed by almost all the judges in the
reign of William IV., yet even Jeffreys was struck with the injustice and
inequality of the law, which, allowing the accused to defend himself by
counsel "for a two-penny trespass," refuses that aid "where life, estate,
honor, and all are concerned," and lamented its existence, while he
declared himself bound to adhere to it.[151] The venerable sages who
apprehended such multiplied evils from altering the practice must have
been greatly relieved by finding that their objections have proved as
unfounded as those which were urged against the abolition of "_peine forte
et dure_;" and the alarming innovation, so long resisted, of allowing
witnesses for the prisoner to be examined under the sanction of an oath.

He has been so much abused, that I began my critical examination of his
history in the hope and belief that I should find that his misdeeds had
been exaggerated, and that I might be able to rescue his memory from some
portion of the obloquy under which it labors; but I am sorry to say, that
in my matured opinion, although he appears to have been a man of high
talents, of singularly agreeable manners, and entirely free from
hypocrisy, his cruelty and his political profligacy have not been
sufficiently exposed or reprobated; and that he was not redeemed from his
vices by one single solid virtue.




CHAPTER XVI.

ROBERT WRIGHT.


I now come to the last of the profligate chief justices of England; for
since the Revolution they have all been men of decent character, and most
of them have adorned the seat of justice by their talents and
acquirements, as well as by their virtues. Sir Robert Wright, if excelled
by some of his predecessors in bold crimes, yields to none in ignorance of
his profession, and beats them all in the fraudulent and sordid vices.

He was the son of a respectable gentleman who lived near Thetford, in
Suffolk, and was the representative of an ancient family, long seated at
Kelverstone, in Norfolk; he enjoyed the opportunity of receiving a good
education at Thetford Free Grammar School, and at the University of
Cambridge; and he had the advantage of a very handsome person and
agreeable manner. But he was by nature volatile, obtuse, intensely
selfish, with hardly a particle of shame, and quite destitute of the
faculty of distinguishing what was base from what was honorable. Without
any maternal spoiling, or the contamination of bad company, he showed the
worst faults of childhood, and these ripened, while he was still in early
youth, into habits of gaming, drinking, and every sort of debauchery.
There was a hope of his reformation when, being still under age, he
captivated the affections of one of the daughters of Dr. Wren, Bishop of
Ely, and was married to her. But he continued his licentious course of
life, and, having wasted her fortune, he treated her with cruelty.

He was supposed to study the law at an Inn of Court, but when he was
called to the bar he had not imbibed even the first rudiments of his
profession. Nevertheless, taking to the Norfolk Circuit, the extensive
influence of his father-in-law, which was exercised unscrupulously in his
favor, got him briefs, and for several years he had more business than
North, (afterwards Lord Keeper Guilford,) a very industrious lawyer, who
joined the circuit at the same time. "But withal," says Roger, the
inimitable biographer, "he was so poor a lawyer that he could not give an
opinion upon a written case, but used to bring such cases as came to him
to his friend, Mr. North, and he wrote the opinion on a paper, and the
lawyer copied it and signed under the case as if it had been his own. It
run so low with him, that when North was at London, he sent up his cases
to him, and had opinions returned by the post; and in the mean time he put
off his clients upon pretence of taking more serious consideration."

At last the attorneys found him out so completely that they entirely
deserted him, and he was obliged to give up practice. By family interest
he obtained the lucrative sinecure of "treasurer to the chest at Chatham,"
but by his voluptuous and reckless course of life he got deeper and deeper
in debt, and he mortgaged his estate to Mr. North for fifteen hundred
pounds, the full amount of its value. From some inadvertence, the title
deeds were allowed to remain in Wright's hands, and being immediately
again in want, he applied to Sir Walter Plummer to lend him five hundred
pounds on mortgage, offering the mortgaged estate as a security, and
asserting that this would be the first charge upon it. The wary Sir
Walter thought he would make himself doubly safe by requiring an affidavit
that the estate was clear from all incumbrances. This affidavit Wright
swore without any hesitation, and he then received the five hundred
pounds. But the money being spent, and the fraud being detected, he was in
the greatest danger of being sent to jail for debt, and also of being
indicted for swindling and perjury.

He had only one resource, and this proved available. Being a clever mimic,
he had been introduced into the circle of parasites and buffoons who
surrounded Jeffreys, at this time chief justice of the King's Bench, and
used to make sport for him and his companions in their drunken orgies by
taking off the other judges, as well as the most eminent counsel. One day,
being asked why he seemed to be melancholy, he took the opportunity of
laying open his destitute condition to his patron, who said to him, "As
you seem to be unfit for the bar, or any other honest calling, I see
nothing for it but that you should become a judge yourself." Wright
naturally supposed that this was a piece of wicked pleasantry, and when
Jeffreys had declared that he was never more serious in his life, asked
how it could be brought about, for he not only felt himself incompetent
for such an office, but he had no interest, and, still more, it so
happened, unfortunately, that the Lord Keeper Guilford, who made the
judges, was fully aware of the unaccountable lapse of memory into which he
had fallen when he swore the affidavit for Sir Walter Plummer, that his
estate was clear from all incumbrances, the lord keeper himself being the
first mortgagee. _Jeffreys, C. J._--"Never despair, my boy; leave all that
to me."

We know nothing more of the intrigue with certainty, till the following
dialogue took place in the royal closet. We can only conjecture that in
the meanwhile Jeffreys, who was then much cherished at court, and was
impatient to supersede Guilford entirely, had urgently pressed the king
that Wright might be elevated to the bench as a devoted friend of the
prerogative, and that, as the lord keeper had a prejudice against him, his
majesty ought to take the appointment into his own hands. But we certainly
know that, a vacancy occurring in the Court of Exchequer, the lord keeper
had an audience of his majesty to take his pleasure on the appointment of
a new baron, and that he named a gentleman at the bar, in great practice
and of good character, as the fittest person to be appointed, thinking
that Charles would nod assent with his usual easy indifference, when, to
his utter amazement, he was thus interrogated: "My lord, what think you of
Mr. Wright? Why may not he be the man?" _Lord Keeper._--"Because, sir, I
know him too well, and he is the most unfit person in England to be made a
judge." _King._--"Then it must not be." Upon this, the lord keeper
withdrew, without having received any other notification of the king's
pleasure; and the office remained vacant.

Again there is a chasm in the intrigue, and we are driven to guess that
Jeffreys had renewed his solicitation, had treated the objections started
to Wright as ridiculous, and had advised the cashiering of the lord keeper
if he should prove obstinate. The next time that the lord keeper was in
the royal presence, the king, opening the subject of his own accord,
observed, "Good my lord, why may not Wright be a judge? He is strongly
recommended to me; but I would have a due respect paid to you, and I would
not make him without your concurrence. Is it impossible, my lord?" _Lord
Keeper._--"Sir, the making of a judge is your majesty's choice, and not
my pleasure. I am bound to put the seal as I am commanded, whatever the
person may be. It is for your majesty to determine, and me, your servant,
to obey. But I must do my duty by informing your majesty of the truth
respecting this man, whom I personally know to be a dunce, and no lawyer;
who is not worth a groat, having spent his estate by debauched living; who
is without honesty, having been guilty of wilful perjury to gain the
borrowing of a sum of money. And now, sir, I have done my duty to your
majesty, and am ready to obey your majesty's commands in case it be your
pleasure that this man be a judge." The king thanked the lord keeper,
without saying more, but next day there came a warrant under the sign
manual for creating the king's "trusty and well-beloved Robert Wright" a
baron of his Exchequer, and orders were given for making out the patent in
due form; and the detected swindler, knighted, and clothed in ermine, took
his place among the twelve judges of England.

People were exceedingly shocked when they saw the seat of justice so
disgraced; but this might be what Jeffreys intended; and one of his first
acts, when he himself obtained the great seal, was to promote his
_protégé_ from being a baron of the Exchequer to be a judge of the Court
of King's Bench.

Wright continued to do many things which caused great scandal, and,
therefore, was dearer than ever to his patron, who would have discarded
him if he had shown any symptoms of reformation. He accompanied General
Jeffreys as _aide de camp_ in the famous "campaign in the west;" in other
words, he was joined in commission with him as a judge in the "bloody
assize," and, sitting on the bench with him at the trial of Lady Lisle and
the others which followed, concurred in all his atrocities. He came in
for very little of the bribery; Jeffreys, who claimed the lion's share,
tossing him by way of encouragement one solitary pardon, for which a small
sum only was expected.

But on the death of Sir Henry Beddingfield he was made chief justice of
the Common Pleas; and very soon afterwards, the unexpected quarrel
breaking out between Sir Edward Herbert and the government about martial
law and the punishment of deserters,[152] the object being to find some
one who by no possibility could go against the government, or hesitate
about doing any thing required of him, however base or however bloody,
Wright was selected as chief justice of the king's bench. Unluckily we
have no account of the speeches made at any of his judicial installations,
so that we do not know in what terms his learning and purity of conduct
were praised, or what were the promises which he gave of impartiality and
of rigorous adherence to the laws of the realm.

On the very day on which he took his seat on the bench he gave good
earnest of his servile spirit. The attorney general renewed his motion for
an order to execute at Plymouth the deserter who had been capitally
convicted at Reading for deserting his colors. The new chief justice,
without entering into reasons, or explaining how he came to differ from
the opinion so strongly expressed by his predecessor, merely said, "Be it
so!" The puisnies now nodded assent, and the prisoner was illegally
executed at Plymouth under the order so pronounced.

Confidence was entirely lost in the administration of justice in
Westminster Hall, for all the three common law courts were at last filled
by incompetent and corrupt judges. Pettifogging actions only were brought
in them, and men settled their disputes by arbitration, or by taking the
opinion of counsel. The reports during the whole reign of James II. hardly
show a single question of importance settled by judicial decision. Thus,
having no distinct means of appreciating Chief Justice Wright's demerits
as a judge in private causes, we must at once follow him in his devious
course as a political judge.

The first occasion on which, after his installation, he drew upon himself
the eyes of the public was when he was sent down to Magdalene College,
Oxford, for the purpose of turning it into a Popish seminary. Upon a
vacancy in the office of president, the fellows, in the exercise of their
undoubted right, had elected the celebrated Dr. Hough, who had been duly
admitted into the office; and the preliminary step to be taken was to
annul the election, for the purpose of making way for another candidate,
named by the king. There were associated with Wright, in this commission,
Cartwright, Bishop of Chester, who was ready to be reconciled to Rome in
the hope of higher preferment, and Sir Thomas Jenner, a baron of the
Exchequer, a zealous follower in the footsteps of the chief justice of the
King's Bench. Nothing could equal the infamy of their object except the
insolence of their behavior in trying to accomplish it. They entered
Oxford escorted by three troops of cavalry with drawn swords, and, having
taken their seats with great parade in the hall of the college, summoned
the fellows to attend them. These reverend and gallant divines appeared,
headed by their new president, who defended his rights with skill, temper
and resolution; steadily maintaining that, by the laws of England, he had
a freehold in his office, and in the house and revenues annexed to it.
Being asked whether he submitted to this royal visitation, he answered:--

"My lords, I do declare here, in the name of myself and the fellows, that
we submit to the visitation as far as it is consistent with the laws of
the land and the statutes of the college, and no further." _Wright, C.
J._--"You cannot imagine that we act contrary to the laws of the land; and
as to the statutes, the king has dispensed with them. Do you think we come
here to break the laws?" _Hough._--"It does not become me, my lords, to
say so; but I will be plain with your lordships. I find that your
commission gives you authority to alter the statutes. Now, I have sworn to
uphold and obey them; I must admit no alteration of them, and by the grace
of God never will." He was asked whether one of the statutes of the
founder did not require mass to be said in the college chapel; but he
answered, "not only was it unlawful, but it had been repealed by the act
of Parliament requiring the use of the Book of Common Prayer." However,
sentence was given that the election of Hough was void, and that he be
deprived of his office of president. _Hough._--"I do hereby protest
against all your proceedings, all you have done, or shall hereafter do, in
prejudice of me and my right, and I appeal to my sovereign lord the king
in his courts of justice." "Upon which (says a contemporary account) the
strangers and young scholars in the hall gave a _hum_, which so much
incensed their lordships that the lord chief justice was not to be
pacified, but, charging it upon the president, bound him in a bond of one
thousand pounds, and security to the like value, to make his appearance at
the King's Bench bar on the 12th of November; and, taking occasion to pun
upon the president's name, said to him, "Sir, you must not think to _huff_
us." He then ordered the door of the president's house to be broken open
by a blacksmith; and a fellow observing, "I am informed that the proper
officer to gain possession of a freehold is the sheriff with a _posse
comitatus_," Wright said, "I pray who is the best lawyer, you or I? Your
Oxford law is no better than your Oxford divinity. If you have a mind to a
_posse comitatus_, you may have one soon enough."

Having ejected Hough, he issued a mandate for expelling all the
contumacious fellows, and insured the expulsion of James from his throne,
when the commissioners returned in triumph to London.

Wright was likewise a member of the Ecclesiastical Court of High
Commission, of which Jeffreys was president, and he strenuously joined in
all the judgments of that illegal and arbitrary tribunal, which, with a
_non obstante_, had been revived in the very teeth of an existing act of
Parliament. He treated with ridicule the scruples of Sancroft, the
Archbishop of Canterbury, and others who refused to sit upon it, and he
urged the infliction of severe punishment on all who denied its
jurisdiction.

Although he was not a member of the Cabinet, he usually heard from the
chancellor the measures which had been resolved upon there, and he was
ever a willing tool in carrying them into effect.

When the clergy were insulted, and the whole country was thrown into a
flame, by the fatal order in Council for reading the "Declaration of
Indulgence" in all churches and chapels on two successive Sundays, he
contrived an opportunity of declaring from the bench his opinion that it
was legal and obligatory. Hearing that the London clergy were almost
unanimously resolved to disobey it, he sent a peremptory command to the
priest who officiated in the chapel of Serjeants' Inn to read the
declaration with a loud voice; and on the famous Sunday, the 20th of May,
1688, he attended in person, to give weight to the solemnity. However, he
was greatly disappointed and enraged to find the service concluded without
any thing being uttered beyond what the rubric prescribes. He then
indecently, in the hearing of the congregation, abused the priest as
disloyal, seditious, and irreligious, for contemning the authority of the
head of the church. The clerk ingeniously came forth to the rescue of his
superior, and took all the blame upon himself by saying that "he had
forgot to bring a copy," and the chief justice, knowing that he had no
remedy, was forced to content himself with this excuse.[153]

The seven bishops being committed to the Tower, and prosecuted for a
conspiracy to defame the king and to overturn his authority, because they
had presented a petition to him praying that they might not be forced to
violate their consciences and to break the law, Wright, the lowest wretch
that had ever appeared on the bench in England, was to preside at the
most important state trial recorded in our annals. The reliance placed
upon his abject subserviency no doubt operated strongly in betraying the
government into this insane project of treating as common malefactors the
venerable fathers of the Protestant church, now regarded by the whole
nation with affectionate reverence. The consideration was entirely
overlooked by the courtiers, that, from the notorious baseness of his
character, his excessive zeal might be revolting to the jury, and might
produce an acquittal. It is supposed that a discreet friend of the
government had given him a caution to bridle his impetuosity against the
accused, as the surest way of succeeding against them; for, during the
whole proceeding, he was less arrogant than could have been expected, and
it is much more probable that his forbearance arose from obedience to
those whom he wished to please, than from any reverence for the sacred
character of the defendants or any lurking respect for the interests of
justice.

They were twice placed at the bar before him--first when they were brought
up by the lieutenant of the Tower to be arraigned, and afterwards when a
jury was empannelled for their trial. On the former occasion the questions
were whether they were lawfully in custody, and were then bound to plead.
The chief justice checked the opposing counsel with an air of
impartiality, saying, "Look you, gentlemen, do not fall upon one another,
but keep to the matter in hand." And, before deciding for the crown, he
said, "I confess it is a case of great weight, and the persons concerned
are of great honor and value. I would be as willing as any body to testify
my respects and regards to my lords the bishops, if I could see any thing
in their objections worth considering. For here is the question, whether
the fact charged in the warrant of commitment be such a misdemeanor as is
a breach of the peace. I cannot but think it is such a misdemeanor as
would have required sureties of the peace, and if sureties were not given,
a commitment might follow." He was guilty of gross injustice in refusing
leave to put in a plea in abatement; but he thus mildly gave judgment: "We
have inquired whether we may reject a plea, and, truly, I am satisfied
that we may if the plea is frivolous; and this plea containing no more
than has been overruled already, my lords the bishops must now plead
guilty or not guilty."

When the trial actually came on, he betrayed a partiality for which, in
our times, a judge would be impeached; but, compared with himself, so
decorous was he, that he was supposed to be overawed by the august
audience in whose presence he sat. It was observed that he often cast a
side glance towards the thick rows of earls and barons by whom he was
watched, and who, in the next Parliament, might be his judges. One
bystander remarked that "he looked as if all the peers present had halters
in their pockets."

The counsel for the crown having, in the first instance, failed to prove a
publication of the supposed libel in the county of Middlesex, and only
called upon the court to suppose or presume it, the chief justice said: "I
cannot suppose it; I cannot presume any thing. I will ask my brothers
their opinion, but I must deal truly with you; I think there is not
evidence against my lords the bishops. It would be a strange thing if we
should go and presume that these lords did it when there is no sort of
evidence to prove that they did it. We must proceed according to forms and
methods of law. People may think what they will of me, but I always
declare my mind according to my conscience." He was actually directing the
jury to acquit, and the verdict of not guilty would have been instantly
pronounced, when Finch, one of the counsel for the bishops, most
indiscreetly said they had evidence on their side to produce. The young
gentleman was pulled down by his leaders, who desired the chief justice to
proceed. And now his lordship showed the cloven foot, for he exclaimed,
"No, no, I will hear Mr. Finch. Go on; my lords the bishops shall not say
of me that I would not hear their counsel. I have been already told of
being counsel against them, and they shall never say I would not hear
counsel for them. Such a learned man as Mr. Finch must have something
material to offer. He shall not be refused to be heard by me, I assure
you. Why don't you go on, Mr. Finch?"

At this critical moment it was announced that the Earl of Sunderland, the
president of the council,--who was present in the royal closet when the
bishops presented their petition to the king at Whitehall,--was at hand,
and would prove a publication in Middlesex. The chief justice then said,
with affected calmness, but with real exultation, "Well, you see what
comes of the interruption. I cannot help it; it is your own fault." There
being a pause while they waited for the arrival of the Earl of Sunderland,
the chief justice, addressing Sir Bartholomew Shower, one of the counsel
for the crown, whom he had stopped at an early stage of the trial, and
against whom he had some private spite, observed with great insolence,
"Sir Bartholomew, now we have time to hear your speech, if you will. Let
us have it."

At last the witness arrived, and, proving clearly a publication in
Middlesex, the case was again launched, and, after hearing counsel on the
merits, it was to be left to the determination of the jury.

The chief justice, thinking to carry it all his own way, was terribly
baffled, not only by the sympathy of the audience with the bishops, which
evidently made an impression on the jury, but by the unexpected honesty of
one of his brother judges, Mr. Justice John Powell, who had been a quiet
man, unconnected with politics, and, being a profound lawyer, had been
appointed to keep the Court of King's Bench from falling into universal
contempt. Sir Robert Sawyer beginning to comment upon a part of the
declaration which the bishops objected to, "that from henceforth the
execution of all laws against nonconformity to the religion established,
or the exercise of any other religion, should be suspended," _Wright, C.
J._, exclaimed, "I must not suffer this; they intend to dispute the king's
power of suspending laws." _Powell, J._--"My lord, they must necessarily
fall upon the point; for, if the king hath no such power, (as clearly he
hath not, in my judgment,) the natural consequence will be that this
petition is no diminution of the king's regal power, and so not seditious
or libellous." _Wright, C. J._--"Brother, I know you are full of that
doctrine; but, however, my lords the bishops shall have no occasion to say
that I deny to hear their counsel. Brother, you shall have your will for
once; I will hear them; let them talk till they are weary." _Powell,
J._--"I desire no greater liberty to be granted them than what, in
justice, the court ought to grant; that is, to hear them in defence of
their clients."

As the speeches for the defendants proceeded, and were producing a great
effect upon all who heard them, the solicitor general made a very
irregular remark, accompanied by a fictitious yawn--"We shall be here
till midnight." The chief justice, instead of reprimanding him, chimed in
with the impertinence, saying, "They have no mind to have an end of the
cause, for they have kept it up three hours longer than they need to have
done." _Serjeant Pemberton._--"My lord, this case does require a great
deal of patience." _Wright, C. J._--"It does so, brother, and the court
has had a great deal of patience; but we must not sit here only to hear
speeches." In trying to put down another counsel, who was making way with
the jury, he observed, "If you say anything more, pray let me advise you
one thing--don't say the same thing over and over again; for, after so
much time spent, it is irksome to all company, as well as to me."

When it came to the reply of Williams, the renegade solicitor general, who
in his day had been "a Whig and something more," he laid down doctrines
which called forth the reprobation of Judge Powell, and even shocked the
chief justice himself, for he denied that any petition could lawfully be
presented to the king except by the lords and commons in Parliament
assembled. _Powell, J._--"This is strange doctrine. Shall not the subject
have liberty to petition the king but in Parliament? If that be law, the
subject is in a miserable case." _Wright, C. J._--"Brother, let him go on;
we will hear him out, though I approve not of his position." The unabashed
Williams continued, "The lords may address the king in Parliament, and the
commons may do it; but therefore that the bishops may do it out of
Parliament, does not follow. I'll tell you what they should have done: if
they were commanded to do anything against their consciences, they should
have acquiesced till the meeting of the Parliament."[154] (Here, says the
reporter, the people in court hissed.) _Attorney General._--"This is very
fine indeed: I hope the court and the jury will take notice of this
carriage." _Wright, C. J._--"Mr. Solicitor, I am of opinion that the
bishops might petition the king; but this is not the right way. If they
may petition, yet they ought to have done it after another manner; for if
they may, in this reflective way, petition the king, I am sure it will
make the government very precarious." _Powell, J._--"Mr. Solicitor, it
would have been too late to stay for a Parliament, for the act they
conceived to be illegal was to be done forthwith; and if they had
petitioned and not shown the reason why they could not obey, it would have
have been looked upon as a piece of sullenness, and for that they would
have been as much blamed on the other side."

The chief justice, to put on a semblance of impartiality, attempted to
stop Sir Bartholomew Shower, who wished to follow in support of the
prosecution, and, being a very absurd man, was likely to do more harm than
good. _Wright, C. J._--"I hope we shall have done by and by." _Sir B.
S._--"If your lordship don't think fit, I can sit down." _Wright, C.
J._--"No! no! Go on, Sir Bartholomew--you'll say I have spoiled a good
speech." _Sir B. S._--"I have no good speech to make, my lord; I have but
a very few words to say." _Wright, C. J._--"Well, go on, sir; go on."

In summing up to the jury, the chief justice said:--

"This is a case of very great concern to the king and the government on
the one side, and to my lords the bishops on the other. It is an
information against his grace my lord of Canterbury and the other six
noble lords, for composing and publishing a seditious libel. At first we
were all of opinion that there was no sufficient evidence of publication
in the county of Middlesex, and I was going to have directed you to find
my lords the bishops not guilty; but it happened that, being interrupted
in my direction by an honest, worthy, learned gentleman, the king's
counsel took the advantage, and, informing the court that they had further
evidence, we waited till the lord president came, who told us how the
petition was presented by the right reverend defendants to the king at
Whitehall. Then came their learned counsel and told us that my lords the
bishops are guardians of the church, and great peers of the realm, and
were bound in conscience to act as they did. Various precedents have been
vouched to show that the kings of England have not the power assumed by
his present majesty in issuing the declaration and ordering it to be read;
but concessions which kings sometimes make, for the good of the people,
must not be made law; for this is reserved in the king's breast to do what
he pleases in it at any time. The truth of it is, the dispensing power is
out of the case, and I will not take upon me to give any opinion upon it
now; for it is not before me. The only question for you is a question of
fact, whether you are satisfied that this petition was presented to the
king at Whitehall. If you disbelieve the lord president, you will at once
acquit the defendants. If you give credit to his testimony, the next
consideration is, whether the petition be a seditious libel, and this is a
question of law on which I must direct you. Now, gentlemen, anything that
shall disturb the government, or make mischief and a stir among the
people, is certainly within the case '_de libellis famosis_;' and I must,
in short, give you my opinion--I do take it to be a libel. But this being
a point of law, if my brothers have anything to say to it, I suppose they
will deliver their opinions."

Mr. Justice Holloway, though a devoted friend of the government, had in
his breast some feeling of shame, and observed,--

"If you are satisfied there was an ill intention of sedition or the like,
you should find my lords the bishops guilty; but if they only delivered a
petition to save themselves harmless, and to free themselves from blame,
by showing the reason of their disobedience to the king's command, which
they apprehend to be a grievance to them, I cannot think it a libel."
_Wright, C. J._--"Look you, by the way, brother, I did not ask you to sum
up the evidence, (for that is not usual,) but only to deliver your opinion
whether it be a libel or no." _Powell, J._--"Truly, I cannot see, for my
part, anything of sedition or any other crime fixed upon these reverend
fathers. For, gentlemen, to make it a libel, it must be false, it must be
malicious, and it must tend to sedition. As to the falsehood, I see
nothing that is offered by the king's counsel, nor anything as to the
malice; it was presented with all the humility and decency becoming
subjects when they approach their prince. In the petition, they say,
because they conceive the thing that was commanded them to be against the
law of the land, therefore they do desire his majesty that he would be
pleased to forbear to insist upon it. If there be no such dispensing
power, there can be no libel in the petition which represented the
declaration founded on such a pretended power to be illegal. Now,
gentlemen, this is a dispensation with a witness; it amounts to an
abrogation and utter repeal of all the laws; for I can see no difference,
nor know of any in law, between the king's power to dispense with laws
ecclesiastical, and his power to dispense with any other laws whatsoever.
If this be once allowed of, there will need no Parliament: all the
legislature will be in the king--which is a thing worth considering--and I
leave the issue to God and your own consciences."

Allybone, however, on whom James mainly relied, foolishly forgetting the
scandal which would necessarily arise from the Protestant prelates being
condemned by a Popish judge for trying to save their church from Popery,
came up to the mark, and, in the sentiments he uttered, must have equalled
all the expectations entertained of him by his master:--

"In the first place," said he, "no man can take upon him to write against
the actual exercise of the government, unless he have leave from the
government. If he does, he makes a libel, be what he writes true or false;
if we once come to impeach the government by way of argument, it is
argument that makes government or no government. So I lay down, that the
government ought not to be impeached by argument, nor the exercise of the
government shaken by argument. Am I to be allowed to discredit the King's
ministers because I can manage a proposition, in itself doubtful, with a
better pen than another man? This I say is a libel. My next position is,
that no private man can take upon him to write concerning the government
at all; for what has any private man to do with the government? It is the
business of the government to manage matters relating to the government;
it is the business of subjects to mind only their private affairs. If the
government does come to shake my particular interest, the law is open for
me, and I may redress myself; but when I intrude myself into matters which
do not concern my particular interest, I am a libeller. And, truly, the
attack is the worse if under a specious pretence; for, by that rule, every
man that can put on a good vizard may be as mischievous as he will, so
that whether it be in the form of a supplication, or an address, or a
petition, let us call it by its true denomination, it is a libel." He then
examined the precedents which had been cited, displaying the grossest
ignorance of the history as well as constitution of the country; and,
after he had been sadly exposed by Mr. Justice Powell, he thus concluded:
"I will not further debate the prerogatives of the crown or the privileges
of the subject; but I am clearly of opinion that these venerable bishops
did meddle with that which did not belong to them; they took upon
themselves to contradict the actual exercise of the government, which I
think no particular persons may do."

The chief justice, without expressing any dissent, merely said, "Gentlemen
of the jury, have you a mind to drink before you go?" So wine was sent
for, and they had a glass apiece; after which they were marched off in
custody of a bailiff; who was sworn not to let them have meat or drink,
fire or candle, until they were agreed upon their verdict.

All that night they were shut up, Mr. Arnold, the king's brewer, standing
out for a conviction till six next morning, when, being dreadfully
exhausted, he was thus addressed by a brother juryman: "Look at me; I am
the largest and the strongest of the twelve, and, before I find such a
petition as this a libel, here I will stay till I am no bigger than a
tobacco-pipe."

The court sat again at ten, when the verdict of not guilty was pronounced,
and a shout of joy was raised which was soon reverberated from the
remotest parts of the kingdom. One gentleman, a barrister of Gray's Inn,
was immediately taken into custody in court, by order of the lord chief
justice, who, with an extraordinary command of temper and countenance,
said to him in a calm voice,--"I am as glad as you can be that my lords
the bishops are acquitted, but your manner of rejoicing here in court is
indecent; you might rejoice in your chamber or elsewhere, and not here.
Have you any thing more to say to my lords the bishops, Mr. Attorney?" _A.
G._--"No, my lord." _Wright, C. J._--"Then they may withdraw,"--and they
walked off; surrounded by countless thousands, who eagerly knelt down to
receive their blessing.[155]

Justice Holloway was forthwith cashiered, as well as Justice Powell; and
there were serious intentions that Chief Justice Wright should share their
fate, as the king ascribed the unhappy result of the trial to his
pusillanimity--contrasting him with Jeffreys, who never had been known to
miss his quarry. This esteemed functionary held the still more important
office of lord high chancellor, and, compared with any other competitor,
Wright, notwithstanding his occasional slight lapses into
conscientiousness, appeared superior in servility to all who could be
substituted for him.[156] Allybone was declared to be "the man to go
through thick and thin;" but, unfortunately, he had made himself quite
ridiculous in all men's eyes by the palpable blunders he had recklessly
fallen into during the late trial; and he felt so keenly the disgrace he
had brought on himself and his religion, that he took to his bed and died
a few weeks afterwards.

Thus, when William of Orange landed at Torbay, Wright still filled the
office of chief justice of the King's Bench. He continued to sit daily in
court till the flight of King James, when an interregnum ensued, during
which all judicial business was suspended, although the public
tranquillity was preserved, and the settlement of the nation was conducted
by a provisional government. After Jeffreys had tried to make his escape,
disguised as a sailor, and was nearly torn to pieces by the mob, Wright
concealed himself in the house of a friend, and being less formidable and
less obnoxious (for he was called the "_jackal_ to the _lion_,") he
remained some time unmolested; but upon information, probably ill-founded,
that he was conspiring with Papists who wished to bring back the king, a
warrant was granted against him by the Privy Council, on the vague charge
of "endeavoring to subvert the government." Under this he was apprehended,
and carried to the Tower of London; but after he had been examined there
by a committee of the House of Commons, it was thought that this custody
was too honorable for him, and he was ordered to be transferred to
Newgate. Here, from the perturbation of mind which he suffered, he was
seized with a fever, and he died miserably a few days after, being
deafened by the cheers which were uttered when the Prince and Princess of
Orange were declared King and Queen of England.

His pecuniary embarrassments had continued even after he became a judge,
and, still living extravagantly, his means were insufficient to supply him
with common comforts in his last hours, or with a decent burial. His end
holds out an awful lesson against early licentiousness and political
profligacy. He was almost constantly fighting against privation and
misery, and during the short time that he seemed in the enjoyment of
splendor he was despised by all good men, and he must have been odious to
himself. When he died, his body was thrown into a pit with common
malefactors; his sufferings, when related, excited no compassion; and his
name was execrated as long as it was recollected.

It is lucky for the memory of Wright that he had contemporaries such as
Jeffreys and Scroggs, who considerably exceeded him in their atrocities.
Had he run the same career in an age not more than ordinarily wicked, his
name might have passed into a by-word, denoting all that is odious and
detestable in a judge; whereas his misdeeds have long been little known,
except to lawyers and antiquaries.

It is a painful duty for me to draw them from their dread abode; but let
me hope that, by exposing them in their deformity, I may be of some
service to the public. Ever since the reaction which followed the passing
of the reform bill, there has been a strong tendency to mitigate the
errors and to lament the fate of James II. This has shown itself most
alarmingly among the rising generation; and there seems reason to dread
that we may soon be under legislators and ministers who, believing in the
divine right of kings, will not only applaud, but act upon, the principles
of arbitrary government. Some good may arise from showing in detail the
practical results of such principles in the due administration of
justice--the chief object, it has been said, for which man renounces his
natural rights, and submits to the restraints of magisterial rule.[157]




APPENDIX.


No. I.

_The case of Passmore Williamson, as stated by himself in his petition for
a habeas corpus, to the Supreme Court of Pennsylvania._

_To the Honorable the Judges of the Supreme Court of Pennsylvania:_

The petition of Passmore Williamson respectfully sheweth: That your
petitioner is a citizen of Pennsylvania, and a resident of Philadelphia;
that he is a member of "The Pennsylvania Society for promoting the
abolition of Slavery, and for the relief of free negroes unlawfully held
in bondage, and for improving the condition of the African race,"
incorporated by act of Assembly passed the 8th day of December, A. D.
1789, of which Dr. Benjamin Franklin was the first president, and that he
is secretary of the acting committee of said society.

That on Wednesday, the 18th day of July last past, your petitioner was
informed that certain negroes, held as slaves, were then at Bloodgood's
hotel, in the city of Philadelphia, having been brought by their master
into the state of Pennsylvania, with the intention of passing through to
other parts. Believing that the persons thus held as slaves were entitled
to their freedom by reason of their having been so brought by their master
voluntarily into the state of Pennsylvania, the petitioner, in the
fulfilment of the official duty imposed upon him by the practice and
regulations of the said society, went to Bloodgood's hotel for the purpose
of apprizing the alleged slaves that they were free, and finding that they
with their master had left said hotel, and gone on board the steamboat of
the New York line, then lying near Walnut Street wharf, your petitioner
went on board the same, found the party, consisting of a woman named Jane,
about thirty-five years of age, and her two sons, Daniel, aged about
twelve, and Isaiah, aged about seven, and, in presence of the master,
informed the said Jane that she was free by the laws of Pennsylvania; upon
which she expressed her desire to have her freedom, and finally, with her
children, left the boat of her own free will and accord, and without any
coercion or compulsion of any kind; and having seen her in possession of
her liberty, with her children, your petitioner returned to his place of
business, and has never since seen the said Jane, Daniel and Isaiah, or
either of them; nor does he know where they are, nor has he had any
connection of any kind with the subject.

Your petitioner used no violence whatever, except simply holding back
Colonel Wheeler, their former master, when he attempted by force to
prevent the said Jane from leaving the boat. Some half dozen negroes,
employed, as your petitioner is informed, as porters and otherwise, at the
wharf and in the immediate neighborhood, of their own accord and without
any invitation of the petitioner, but probably observing or understanding
the state of affairs, followed the petitioner when he went on board the
boat. An allegation has been made that they were guilty of violence and
disorder in the transaction. Your petitioner observed no acts of violence
committed by them, nor any other disorder than the natural expression of
some feeling at the attempt of Colonel Wheeler to detain the woman by
force; that there was not any violence or disorder amounting to a breach
of the peace is also fairly to be inferred from the fact that two police
officers were present, who were subsequently examined as witnesses, and
stated that they did not see anything requiring or justifying their
interference to preserve the peace. And your petitioner desires to state
explicitly that he had no preconcert or connection of any kind with them
or with their conduct, and considers that he is in no way responsible
therefor. Your petitioner gave to Colonel Wheeler, at the time, his name
and address, with the assurance that he would be responsible if he had
injured any right which he had; fully believing at the time, as he does
still believe, that he had committed no injury whatever to any right of
Colonel Wheeler.

On the night of the same day your petitioner was obliged to leave the city
to attend an election of the Atlantic and Ohio Telegraph Company, at
Harrisburg, and returned to Philadelphia on Friday, the 20th of July,
between one and two o'clock, A. M. Upon his return, an _alias_ writ of
_habeas corpus_ was handed to him, issued from the district court of the
United States for the eastern district of Pennsylvania, upon the petition
of the said John H. Wheeler, commanding him that the bodies of the said
Jane, Daniel and Isaiah he should have before the Hon. John K. Kane, judge
of the said district court, forthwith. To the said writ your petitioner
the same day, viz., the 20th day of July last past, made return, that the
said Jane, Daniel and Isaiah, or by whatever name they may be called, nor
either of them, were not then, nor at the time of issuing said writ, or
the original writ, or at any other time, in the custody, power, or
possession of, nor confined nor restrained of their liberty, by your
petitioner; therefore he could not have the bodies of the said Jane,
Daniel and Isaiah before the said judge, as by the said writ he was
commanded.

Whereupon and afterwards, to wit: on the 27th day of July aforesaid, it
was ordered and adjudged by the court that your petitioner be committed to
the custody of the marshal, without bail or mainprize, as for a contempt
in refusing to make return to a writ of _habeas corpus_ theretofore issued
against him at the instance of Mr. John H. Wheeler; all which appears by
the record and proceedings in the said case, which your petitioner begs
leave to produce, and a copy of an exemplification of which is annexed to
this petition. Thereupon, on the same day, a warrant was issued,
commanding that the marshal of the United States, in and for the eastern
district of Pennsylvania, forthwith take into custody the body of your
petitioner, for a contempt of the honorable the judge of the said district
court, in refusing to answer to the said writ of _habeas corpus_,
theretofore awarded against him, the said petitioner, at the relation of
Mr. John H. Wheeler, a copy of which is hereto annexed, and also a
warrant, by and from the marshal of the United States, to the keeper of
the Moyamensing prison, a copy of which is also hereto annexed; under
which warrants your petitioner was committed to the said prison, and is
now there detained, without bail or mainprize.

Notwithstanding the record is silent on the subject, your petitioner
thinks it proper to state that, on the return of the writ of _habeas
corpus_, the judge allowed the relator to traverse the said return by
parol, under which permission the relator gave his own testimony, in which
he stated that he held the said Jane, Daniel and Isaiah as slaves, under
the law of Virginia, and had voluntarily brought them with him by railroad
from the city of Baltimore to the city of Philadelphia, where he had been
accidentally detained at Bloodgood's hotel about three hours; and certain
other witnesses were examined. From the testimony thus given, though not
at all warranted by it or by the facts, the said judge decided that your
petitioner had been concerned in a forcible abduction of the said Jane,
Daniel and Isaiah, against their will and consent, upon the deck of the
said steamboat, but admitted that your petitioner took no personally
active part in such supposed abduction after he had left the deck.

The hearing took place on the morning of Friday, the 20th of July, at ten
o'clock, your petitioner having had the first knowledge of the existence
of any writ of _habeas corpus_ between one and two o'clock on the same
morning. Under these circumstances, before the said testimony was gone
into and afterwards, the counsel of your petitioner asked for time, until
the next morning, for consultation and preparation for the argument of
the questions which might arise in the case, which applications were
refused by the court, and the hearing went on, and closed on the same
morning between twelve and one o'clock.

On Tuesday, the 31st of July, 1855, your petitioner presented to the Hon.
Chief Justice of this court a petition for a _habeas corpus_, which was
refused.

Inasmuch as your petitioner is thus deprived of his liberty for an
indefinite time, and possibly for his life, as he believes, illegally;
inasmuch as he is a native citizen of Pennsylvania, and claims that he has
a right to the protection of the commonwealth, and to have recourse to her
courts for enlargement and redress; he begs leave respectfully to state
some of the grounds on which he conceives that he is entitled to the
relief which he now prays.

Whatever may be the view of the court as to the probability of his
discharge on a hearing, your petitioner respectfully represents that he is
clearly entitled to have a writ of _habeas corpus_ granted, and to be
thereupon brought before the court. Upon this subject the Pennsylvania
_habeas corpus_ act is imperative. Indeed, as the question of the
sufficiency of the cause of his detention directly concerns his personal
liberty, any law which should fail to secure to him the right of being
personally present at its argument and decision, would be frightfully
inconsistent with the principles of the common law, the provisions of our
Bill of Rights, and the very basis of our government.

It is believed that no case, prior to that of your petitioner, is reported
in Pennsylvania, of a refusal of this writ to a party restrained of his
liberty, except the case of _Ex parte Lawrence_, 5 Binn. 304, in which it
was decided that it was not obligatory on the court to issue a second writ
of _habeas corpus_ where the case had been already heard on the same
evidence upon a first writ of _habeas corpus_ granted by another court of
the petitioner's own selection: in other words, that the statutory right
to the writ was exhausted by the impetration and hearing of the first
writ, and that the granting of a second writ was at the discretion of the
court. This case, therefore, appears to confirm strongly the position of
your petitioner, that he is absolutely entitled at law to the writ for
which he now prays.

On the hearing there will be endeavored to be established on behalf of
your petitioner, on abundant grounds of reason and authority, the
following propositions, viz.:--

1. That it is the right and duty of the courts, and especially of the
supreme court of this commonwealth, to relieve any citizen of the same
from illegal imprisonment.

2. That imprisonment under an order of a court or judge not having
jurisdiction over the subject matter, and whose order is therefore void,
is an illegal imprisonment.

3. That the party subjected to such imprisonment has a right to be
relieved from it on _habeas corpus_, whether he did or did not make the
objection of the want of jurisdiction before the court or judge inflicting
such imprisonment; and that if he did not make such objection, it is
immaterial whether he were prevented from making it by ignorance of the
law, or by the want of extraordinary presence of mind, or by whatever
other cause.

4. That the courts and judges of the United States are courts and judges
of limited jurisdiction, created by a government of enumerated powers, and
in proceedings before them the records must show the case to be within
their jurisdiction, otherwise they can have none.

5. That if the record of any proceeding before them show affirmatively
that the case was clearly without their jurisdiction, there can no
presumption of fact be raised against such record for the purpose of
validating their jurisdiction.

6. That no writ of _habeas corpus_ can be issued to produce the body of a
person not in custody under legal process, unless it be issued in behalf
and with the consent of said person.

7. That at common law, the return to a writ of _habeas corpus_, if it be
an unevasive, full and complete, is conclusive, and cannot be traversed.

8. That a person held as a slave under the law of one state, and
voluntarily carried by his owner for any purpose into another state, is
not a fugitive from labor or service within the true intent and meaning of
the constitution of the United States, but is subject to the laws of the
state into which he has been thus carried; and that by the law of
Pennsylvania a slave so brought into this state, whether for the purpose
of passing through the same or otherwise, is free.

9. That the district court of the United States has no jurisdiction
whatever over the question of freedom or slavery of such person, or of an
alleged abduction of him, nor any jurisdiction to award a writ of _habeas
corpus_ commanding an alleged abductor, or any citizen by whom he may be
assumed to be detained, to produce him.

10. That in case of a fugitive from service or labor from another state,
the district court of the United States has jurisdiction to issue a
warrant for the apprehension of such fugitive, and in case he be rescued
and abducted from his claimant, so proceed by indictment and trial by jury
against such abductor, and on conviction to punish him by limited fine and
imprisonment; but even in the case of a fugitive slave, said court nor
the judge thereof has no jurisdiction to issue a writ of _habeas corpus_,
commanding the alleged abductor to produce such fugitive, or to enforce a
return of such writ, or allow a traverse of the return thereof if made, or
upon such traverse in effect convict the respondent, without indictment or
trial by jury of such abduction, and thereupon punish him therefor by
unlimited imprisonment in the name of a commitment, as for a contempt in
refusing to return such writ of _habeas corpus_.

11. That generally it is true that one court will not go behind a
commitment by another court for contempt; but that this is only where the
committing court has jurisdiction of the subject matter; and your
petitioner submits that when the circumstances of the supposed contempt
are set forth upon the record of commitment, and it further appears
thereupon that the whole proceedings were _coram non judice_, and that for
that and other reasons the commitment was arbitrary, illegal and void, it
is the right and duty of a court of competent jurisdiction, by writ of
_habeas corpus_, to relieve a citizen from imprisonment under such void
commitment.

12. That neither the district court of the United States nor the judge
thereof had any shadow or color of jurisdiction to award the writ of
_habeas corpus_ directed to your petitioner, commanding him to produce the
bodies of Jane, Daniel, and Isaiah, and that such writ was void; that your
petitioner was in no wise bound to make return thereto; that the return
which he did make thereto was unevasive, full, and complete, and was
conclusive, and not traversable; that the commitment of your petitioner as
for a contempt in refusing to return said writ is arbitrary, illegal, and
utterly null and void; that the whole proceedings, including the
commitment for contempt, were absolutely _coram non judice_.

13. That in such oppression of one of her citizens, a subordinate judge of
the United States has usurped upon the authority, violated the peace and
derogated from the sovereign dignity of the commonwealth of Pennsylvania;
that all are hurt in the person of your petitioner, and that he is
justified in looking with confidence to the authorities of his native
state to vindicate her rights by restoring his liberty.

To be relieved, therefore, from the imprisonment aforesaid, your
petitioner now applies, praying that a writ of _habeas corpus_ may be
issued, according to the act of Assembly in such case made and provided,
directed to Charles Hortz, the said keeper of said prison, commanding him
to bring before your honorable court the body of your petitioner, to do
and abide such order as your honorable court may direct.

And your petitioner will ever pray, &c.

  PASSMORE WILLIAMSON.

_Moyamensing Prison, August 9, 1855._


No. II.

_The Opinion and Decision of Judge Kane, referred to in the foregoing
petition._

_The U. S. A. ex. rel. Wheeler_ agt. _Passmore Williamson_--Sur. _Habeas
Corpus_, 27th July, 1855.--Colonel John H. Wheeler, of North Carolina, the
United States Minister to Nicaragua, was on board a steamboat at one of
the Delaware wharves, on his way from Washington to embark at New York for
his post of duty. Three slaves belonging to him were sitting at his side
on the upper deck.

Just as the last signal bell was ringing, Passmore Williamson came up to
the party--declared to the slaves that they were free--and forcibly
pressing Mr. Wheeler aside, urged them to go ashore. He was followed by
some dozen or twenty negroes, who, by muscular strength, carried the
slaves to the adjoining pier; two of the slaves at least, if not all
three, struggling to release themselves, and protesting their wish to
remain with their master; two of the negro mob in the meantime grasping
Colonel Wheeler by the collar, and threatening to cut his throat if he
made any resistance.

The slaves were borne along to a hackney coach that was in waiting, and
were conveyed to some place of concealment; Mr. Williamson following and
urging forward the mob; and giving his name and address to Colonel
Wheeler, with the declaration that he held himself responsible towards him
for whatever might be his legal rights; but taking no personally active
part in the abduction after he had left the deck.

I allowed a writ of _habeas corpus_ at the instance of Colonel Wheeler,
and subsequently an _alias_; and to this last Mr. Williamson made return,
that the persons named in the writ, "nor either of them, are not now nor
was at the time of issuing of the writ, or the original writ, or at any
other time, in the custody, power, or possession of the respondent, nor by
him confined or restrained: wherefore he cannot have the bodies," etc.

At the hearing I allowed the relator to traverse this return; and several
witnesses, who were asked by him, testified to the facts as I have recited
them. The District Attorney, upon this state of facts, moved for
Williamson's commitment: 1. For contempt in making a false return; 2. To
take his trial for perjury.

Mr. Williamson then took the stand to purge himself of contempt. He
admitted the facts substantially as in proof before; made it plain that he
had been an adviser of the project, and had given it his confederate
sanction throughout. He renewed his denial that he had control at any
time over the movements of the slaves, or knew their present whereabouts.
Such is the case, as it was before me on the hearing.

I cannot look upon this return otherwise than as illusory--in legal
phrase--as evasive, if not false. It sets out that the alleged prisoners
are not now, and have not been since the issue of the _habeas corpus_, in
the custody, power or possession of the respondent; and in so far, it uses
legally appropriate language for such a return. But it goes further, and
by added words, gives an interpretation to that language, essentially
variant from its legal import.

It denies that the prisoners were within his power, custody or possession,
at any time whatever. Now, the evidence of respectable, uncontradicted
witnesses, and the admission of the respondent himself, establish the fact
beyond controversy, that the prisoners were at one time within his power
and control. He was the person by whose counsel the so called rescue was
devised. He gave the directions, and hastened to the pier to stimulate and
supervise their execution. He was the spokesman and first actor after
arriving there. Of all the parties to the act of violence, he was the only
white man, the only citizen, the only individual having recognized
political rights, the only person whose social training could certainly
interpret either his own duties or the rights of others, under the
constitution of the land.

It would be futile, and worse, to argue that he who has organized and
guided, and headed a mob, to effect the abduction and imprisonment of
others--he in whose presence and by whose active influence the abduction
and imprisonment have been brought about--might excuse himself from
responsibility by the assertion that it was not his hand that made the
unlawful assault, or that he never acted as the jailer. He who unites with
others to commit a crime, shares with them all the legal liabilities that
attend on its commission. He chooses his company and adopts their acts.

This is the retributive law of all concerted crimes; and its argument
applies with peculiar force to those cases, in which redress and
prevention of wrong are sought through the writ of _habeas corpus_. This,
the great remedial process by which liberty is vindicated and restored,
tolerates no language, in the response which it calls for, that can mask a
subterfuge. The dearest interests of life, personal safety, domestic
peace, social repose, all that man can value, or that is worth living for,
are involved in this principle. The institutions of society would lose
more than half their value, and courts of justice become impotent for
protection, if the writ of _habeas corpus_ could not compel the
truth--full, direct, and unequivocal--in answer to its mandate.

It will not do to say to the man, whose wife or whose daughter has been
abducted, "I did not abduct her; she is not in my possession; I do not
detain her; inasmuch as the assault was made by the hand of my
subordinates, and I have forborne to ask where they propose consummating
the wrong."

It is clear, then, as it seems to me, that in legal acceptance the parties
whom this writ called on Mr. Williamson to produce, were at one time
within his power and control; and his answer, so far as it relates to his
power over them, makes no distinction between that time and the present. I
cannot give a different interpretation to his language from that which he
has practically given himself, and cannot regard him as denying his power
over the prisoners now, when he does not aver that he has lost the power
which he formerly had.

He has thus refused, or at least he has failed, to answer to the command
of the law. He has chosen to decide for himself upon the lawfulness as
well as the moral propriety of his act, and to withhold the ascertainment
and vindication of the rights of others from that same forum of
arbitrament on which all his own rights repose. In a word, he has put
himself in contempt of the process of this court and challenges its
action.

That action can have no alternative form. It is one too clearly defined by
ancient and honored precedent, too indispensable to the administration of
social justice and the protection of human right, and too potentially
invoked by the special exigency of the case now before the court, to
excuse even a doubt of my duty or an apology for its immediate
performance.

The cause was submitted to me by the learned counsel for the respondent,
without argument, and I have therefore found myself at some loss to
understand the grounds on which, if there be any such, they would claim
the discharge of their client. One only has occurred to me as, perhaps,
within his view; and on this I think it right to express my opinion. I
will frankly reconsider it, however, if any future aspect of the case
shall invite the review.

It is this: that the persons named in this writ as detained by the
respondent, were not legally slaves, inasmuch as they were within the
territory of Pennsylvania when they were abducted.

Waiving the inquiry whether, for the purpose of this question, they were
within the territorial jurisdiction of Pennsylvania while passing from one
state to another upon the navigable waters of the United States--a point
on which my first impressions are adverse to the argument--I have to say:

I. That I know of no statute, either of the United States, or of
Pennsylvania, or of New Jersey, the only other state that has a qualified
jurisdiction over this part of the Delaware, that authorises the forcible
abduction of any person or any thing whatsoever, without claim of
property, unless in aid of legal process.

2. That I know of no statute of Pennsylvania, which affects to divest the
rights of property of a citizen of North Carolina, acquired and asserted
under the laws of that state, because he has found it needful or
convenient to pass through the territory of Pennsylvania.

3. That I am not aware that any such statute, if such a one were shown,
could be recognized as valid in a court of the United States.

4. That it seems to me altogether unimportant whether they were slaves or
not. It would be the mockery of philanthropy to assert, that, because men
had become free, they might therefore be forcibly abducted.

I have said nothing of the motives by which the respondent has been
governed; I have nothing to do with them; they may give him support and
comfort before an infinitely higher tribunal; I do not impugn them here.
Nor do I allude, on the other hand, to those special claims upon our
hospitable courtesy which the diplomatic character of Mr. Wheeler might
seem to assert for him. I am doubtful whether the acts of Congress give to
him and his retinue, and his property, that protection as a representative
of the sovereignty of the United States, which they concede to all
sovereignties besides. Whether, under the general law of nations, he could
not ask a broader privilege than some judicial precedents might seem to
admit, is not necessarily involved in the cause before me. It is enough
that I find, as the case stands now, the plain and simple grounds of
adjudication, that Mr. Williamson has not returned truthfully and fully to
the writ of _habeas corpus_. He must, therefore, stand committed for a
contempt of the legal process of the court.

As to the second motion of the District Attorney--that which looks to a
committal for perjury--I withhold an expression of opinion in regard to
it. It is unnecessary, because Mr. Williamson being under arrest, he may
be charged at any time by the Grand Jury; and I apprehend that there may
be doubts whether the affidavit should not be regarded as extrajudicial.

Let Mr. Williamson, the respondent, be committed to the custody of the
marshal without bail or mainprize, as for a contempt of the court in
refusing to answer to the writ of _habeas corpus_, heretofore awarded
against him at the relation of Mr. Wheeler.

N. B. A motion of the prisoner's counsel for leave to amend the return was
refused, and to a question for what time the imprisonment was to be, the
judge replied--"While he remains in contempt."


No. III.

_The opinion of the Supreme Court of Pennsylvania, delivered by Judge
Black, declining to grant the petition of Passmore Williamson._

This is an application by Passmore Williamson for _habeas corpus_. He
complains that he is held in custody under a commitment of the district
court of the United States, for a contempt of that court in refusing to
obey its process. The process which he is confined for disobeying was a
_habeas corpus_ commanding him to produce the bodies of certain colored
persons claimed as slaves under the law of Virginia.

Is he entitled to the writ he has asked for? In considering what answer we
shall give to this question, we are, of course, expected to be influenced,
as in other cases, by the law and the constitution alone. The gentlemen
who appeared as counsel for the petitioner, and who argued the motion in a
way which did them great honor, pressed upon us no considerations except
those which were founded upon their _legal_ views of the subject.

It is argued with much earnestness, and no doubt with perfect sincerity,
that we are bound to allow the writ, without stopping to consider whether
the petitioner has or has not laid before us any probable cause for
supposing that he is illegally detained--that every man confined in
prison, except for treason or felony, is entitled to it _ex debito
justitiæ_--and that we cannot refuse it without a frightful violation of
the petitioner's rights, no matter how plainly it may appear on his own
showing that he is held in custody for a just cause. If this be true, the
case of _Ex parte Lawrence_, 5 Binn. 304, is not law. There the writ was
refused because the applicant had been previously heard before another
court. But if every man who applies for a _habeas corpus_ must have it as
a matter of right, and without regard to anything but the mere fact that
he demands it, then a court or a judge has no more power to refuse a
second than a first application.

Is it really true that the special application, which must be made for
every writ of _habeas corpus_, and the examination of the commitment,
which we are bound to make before it can issue, are mere hollow and
unsubstantial forms? Can it be possible that the law and the courts are so
completely under the control of their natural enemies, that every class of
offenders against the Union and the state, except traitors and felons, may
be brought before us as often as they please, though we know beforehand,
by their own admissions, that we cannot help but remand them immediately?
If these questions must be answered in the affirmative, then we are
compelled, against our will and contrary to our convictions of duty, to
wage a constant warfare against the federal tribunals by firing off writs
of _habeas corpus_ upon them all the time. The punitive justice of the
state would suffer still more seriously. The half of the Western
Penitentiary would be before us at Philadelphia, and a similar proportion
from Cherry Hill and Moyamensing would attend our sittings at Pittsburgh.
To remand them would do very little good; for a new set of writs would
bring them all back again. A sentence to solitary confinement would be a
sentence that the convict should travel for a limited term up and down the
state, in company with the officers who might have him in charge. By the
same means the inmates of the lunatic asylums might be temporarily
enlarged, much to their own detriment; and every soldier or seaman in the
service of the country could compel his commander to bring him before the
court six times a week.

But the _habeas corpus_ act has never received such a construction. It is
a writ of right, and may not be refused to one who shows a _prima facie_
case entitling him to be discharged or bailed. But he has no right to
demand it who admits that he is in legal custody for an offence not
bailable and he does make what is equivalent to such an admission when his
own application and the commitment referred to in it show that he is
lawfully detained. A complaint must be made and the cause of detainer
submitted to a judge before the writ can go. The very object and purpose
of this is to prevent it from being trifled with by those who manifestly
have no right to be set at liberty. It is like a writ of error in a
criminal case, which the court or judge is bound to allow if there be
reason to suppose that an error has been committed, and equally bound to
refuse if it be clear that the judgment must be affirmed.

We are not aware that any application to this court for a writ of _habeas
corpus_ has ever been successful where the judges, at the time of the
allowance, were satisfied that the prisoner must be remanded. The
petitioner's counsel say there is but one reported case in which it was
refused, (5 Binn. 304;) and this is urged in the argument as a reason for
supposing that in all other cases the writ was issued without examination.
But no such inference can fairly be drawn from the scarcity of judicial
decisions upon a point like this. We do not expect to find in reports so
recent as ours those long-established rules of law which the student
learns from his elementary books, and which are constantly acted upon
without being disputed.

The _habeas corpus_ is a common law writ, and has been used in England
from time immemorial, just as it is now. The statute of 31 Char. II. c. 2,
made no alteration in the practice of the courts in granting these writs.
(3 Barn. and Ald. 420 to Chitty's Reps. 207.) It merely provided that the
judges in vacation should have the power which the courts had previously
exercised in term time, (1 Chitty's Gen. Prac. 686,) and inflicted
penalties upon those who should defeat its operation. The common law upon
this subject was brought to America by the colonists; and most, if not all
of the states, have since enacted laws resembling the English statute of
Charles II. in every principal feature. The constitution of the United
States declares that "the privilege of a writ of _habeas corpus_ shall not
be suspended unless when, in cases of rebellion or invasion, the public
safety may require it." Congress has conferred upon the federal judges the
power to issue such writs according to the principles and rules regulating
it in other courts. Seeing that the same general principles of common law
on this subject prevail in England and America, and seeing also the
similarity of their statutory regulations in both countries, the decisions
of the English judges, as well as of the American courts, both state and
federal, are entitled to our fullest respect, as settling and defining our
powers and duties.

Blackstone (3 Com. 132) says the writ of _habeas corpus_ should be allowed
only when the court or judge is satisfied that the party hath probable
cause to be delivered. He gives cogent reasons why it should not be
allowed in any other case, and cites with unqualified approbation the
precedents set by Sir Edward Coke and Chief Justice Vaughan in cases where
they had refused it. Chitty lays down the rule (1 Cr. Law, 101; General
Prac. 686-7.) It seems to have been acted upon by all the judges. The writ
was refused in _Rex_ v. _Scheiner_, (1 Burr. 765,) and in the case of the
three Spanish sailors, (3 Black. Rep. 1324.) In Hobhouse's case, (2 Barn.
and Ald. 420,) it was fully settled by a unanimous court, as the true
construction of the statute, that the writ is never to be allowed, if upon
view of the commitment it be manifest that the prisoner must be remanded.
In New York, when the statute in force there was precisely like ours, (so
far I mean as this question is concerned,) it was decided by the supreme
court (5 Johns. 282) that the allowance of the writ was a matter within
the discretion of the court, depending on the grounds laid in the
application. It was refused in Huster's case, (1, 2 C. 136) and in _Ex
parte Ferguson_, (9 Johns. Rep. 139.) In addition to this we have the
opinion of Chief Justice Marshall, in Watkins's case, (3 Peters, 202) that
the writ ought not to be awarded if the court is satisfied that the
prisoner must be remanded. It was accordingly refused by the supreme
court of the United States in that case, as it had been before in
Kearney's case.

On the whole, we are thoroughly satisfied that our duty requires us to
view and examine the cause of detainer now, and to make an end of the
business at once, if it appear that we have no power to discharge him on
the return of the writ.

This prisoner, as already said, is confined on a sentence of the district
court of the United States for a contempt. A _habeas corpus_ is not a writ
of error. It cannot bring a case before us in such a manner that we can
exercise any kind of appellate jurisdiction in it. On a _habeas corpus_,
the judgment, even of a subordinate state court, cannot be disregarded,
reversed or set aside, however clearly we may perceive it to be erroneous,
and however plain it may be that we ought to reverse it if it were before
us on appeal or writ of error. We can only look at the record to see
whether a judgment exists, and have no power to say whether it is right or
wrong. It is conclusively presumed to be right until it is regularly
brought up for revision. We decided this three years ago at Sunbury, in a
case which we all thought one of much hardship. But the rule is so
familiar, so universally acknowledged, and so reasonable in itself, that
it requires only to be stated. It applies with still greater force, or at
least for stronger reasons, to the decisions of the federal courts. Over
them we have no control at all, under any circumstances, or by any process
that could be devised. Those tribunals belong to a different judicial
system from ours. They administer a different code of laws, and are
responsible to a different sovereignty. The district court of the United
States is as independent of us as we are of it--as independent as the
supreme court of the United States is of either. What the law and the
constitution have forbidden us to do directly on writ of error, we, of
course, cannot do indirectly by _habeas corpus_.

But the petitioner's counsel have put his case on the ground that the
whole proceeding against him in the district court was _coram non judice_,
null and void. It is certainly true that a void judgment may be regarded
as no judgment at all; and every judgment is void which clearly appears on
its own face to have been pronounced by a court having no jurisdiction or
authority in the subject matter. For instance, if a federal court should
convict and sentence a citizen for libel, or if a state court, having no
jurisdiction except in civil pleas, should try an indictment for a crime
and convict the party--in these cases the judgments would be wholly void.
If the petitioner can bring himself within this principle, then there is
no judgment against him; he is wrongfully imprisoned, and we must order
him to be brought out and discharged.

What is he detained for? The answer is easy and simple. The commitment
shows that he was tried, found guilty, and sentenced for _contempt of
court_, and nothing else. He is now confined in execution of that
sentence, and for no other cause. This was a distinct and substantive
offence against the authority and government of the United States. Does
any body doubt the jurisdiction of the district court to punish contempt?
Certainly not. All courts have this power, and must necessarily have it;
otherwise they could not protect themselves from insult, or enforce
obedience to their process. Without it they would be utterly powerless.
The authority to deal with an offender of this class belongs exclusively
to the court in which the offence is committed, and no other court, not
even the highest, can interfere with its exercise, either by writ of
error, mandamus, or _habeas corpus_. If the power be abused, there is no
remedy but impeachment.

The law was so held by this court in M'Laughlin's case, (5 W. & S. 275,)
and by the supreme court of the United States in Kearney's case, (7
Wharton, 38.) It was solemnly settled as part of the common law, in Brass
Crossley's case, (3 Wilson, 183,) by a court in which sat two of the
foremost jurists that England ever produced. We have not the smallest
doubt that it is the law; and we must administer it as we find it. The
only attempt ever made to disregard it was by a New York judge, (4 Johns.
Rep. 345,) who was not supported by his brethren. This attempt was
followed by all the evil and confusion which Blackstone and Kent and Story
declared to be its necessary consequences. Whoever will trace that
singular controversy to its termination will see that the chancellor and
the majority of the supreme court, though once outvoted in the Senate,
were never answered.

The Senate itself yielded to the force of the truths which the supreme
court had laid down so clearly, and the judgment of the court of errors in
Yates's case (8 Johns. 593) was overruled by the same court the year
afterward in _Yates_ v. _Lansing_, (9 Johns. Rep. 403,) which grew out of
the very same transaction, and depended on the same principles. Still
further reflection at a later period induced the Senate to join the
popular branch of the legislature in passing a statute which effectually
prevents one judge from interfering by _habeas corpus_ with the judgment
of another on a question of contempt.

These principles being settled, it follows irresistibly that the district
court of the United States had power and jurisdiction to decide what acts
constitute a contempt against it; to determine whether the petitioner had
been guilty of contempt; and to inflict upon him the punishment which in
his opinion he ought to suffer. If we fully believed the petitioner to be
innocent--if we were sure that the court which convicted him misunderstood
the facts, or misapplied the law--still we could not reëxamine the
evidence or rejudge the justice of the case, without grossly disregarding
what we know to be the law of the land. The judge of the district court
decided the question on his own constitutional responsibility. Even if he
could be shown to have acted tyrannically or corruptly, he could be called
to answer for it only in the Senate of the United States.

But the counsel for the petitioner go behind the proceeding in which he
was convicted, and argue that the sentence for contempt is void, because
the court had no jurisdiction of a certain other matter which it was
investigating, or attempting to investigate, when the contempt was
committed. We find a judgment against him in one case, and he complains
about another, in which there is no judgment. He is suffering for an
offence against the United States; and he says he is innocent of any wrong
to a particular individual. He is conclusively adjudged guilty of
contempt; and he tells us that the court had no jurisdiction to restore
Mr. Wheeler's slaves.

It must be remembered that contempt of court is a specific criminal
offence. It is punished sometimes by indictment, and sometimes in a
summary proceeding, as it was in this case. In either mode of trial the
adjudication against the offender is a conviction, and the commitment in
consequence is execution. (7 Wheat. 38.) This is well settled, and I
believe has never been doubted. Certainly the learned counsel for the
petitioner have not denied it. The contempt may be connected with some
particular cause, or it may consist in misbehavior which has a tendency to
obstruct the administration of justice generally. When it is committed in
a pending cause, the proceeding to punish it is a proceeding by itself. It
is not entitled in the cause pending, but on the criminal side. (Wall.
134.)

The record of a conviction for contempt is as distinct from the matter
under investigation, when it was committed, as an indictment for perjury
is, from the cause in which the false oath was taken. Can a person
convicted of perjury ask us to deliver him from the penitentiary, on
showing that the oath on which the perjury is assigned, was taken in a
cause of which the court had no jurisdiction? Would any judge in the
commonwealth listen to such a reason for treating the sentence as void?
If, instead of swearing falsely, he refuses to be sworn at all, and he is
convicted, not of perjury, but of contempt, the same rule applies, and
with a force precisely equal. If it be really true that no contempt can be
committed against a court while it is enquiring into matter beyond its
jurisdiction, and if the fact was so in this case, then the petitioner had
a good defence, and he ought to have made it on his trial. To make it
after conviction is too late. To make it here is to produce it before the
wrong tribunal.

Every judgment MUST be conclusive until reversed. Such is the character,
nature, and essence of all judgments. If it be not conclusive, it is not a
judgment. A court must either have power to settle a given question
finally and forever, so as to preclude all further inquiry upon it, or
else it has no power to make any decision at all. To say that a court may
determine a matter, and that another court may regard the matter afterward
as open and undetermined, is an absurdity in terms.

It is most especially necessary that convictions for contempt in our
courts should be final, conclusive, and free from reëxamination by other
courts on _habeas corpus_. If the law were not so, our judicial system
would break to pieces in a month. Courts totally unconnected with each
other would be coming in constant collision. The inferior courts would
revise all the decisions of the judges placed over and above them. A party
unwilling to be tried in this court, need only defy our authority, and if
we commit him, take out his _habeas corpus_ before an associate judge of
his own choosing, and if that judge is of opinion that we ought not to try
him, there is an end of the case.

The doctrine is so plainly against the reason of the thing, that it would
be wonderful, indeed, if any authority for it could be found in the books,
except the overruled decision of Mr. Justice Spencer of New York, already
referred to, and some efforts of the same kind to control the other courts
made by Sir Edward Coke, in the King's Bench, which are now universally
admitted to have been illegal, as well as rude and intemperate. On the
other hand, we have all the English judges, and all our own, disclaiming
their power to interfere with or control one another in this way. I will
content myself by simply referring to some of the books in which it is
established, that the conviction of contempt is a separate proceeding, and
is conclusive of every fact which might have been urged on the trial for
contempt, and among others want of jurisdiction to try the cause in which
the contempt was committed. (4 Johns. Rep. 325, _et sequ._ The opinion of
Chief Justice Kent, on pages 370 to 375. 6 Johns. 503. 9 Johns. 423. 1
Hill. 170. 5 Iredell, 190. Ib. 153. 9 Sandf. 724. 1 Carter, 160. 1 Blackf.
166. 25 Miss. 836. 2 Wheeler's Criminal Cases, p. 1. 14 Ad. and Ellis,
556.) These cases will speak for themselves; but I may remark as to the
last one, that the very same objection was made there and here. The party
was convicted of contempt in not obeying a decree. He claimed his
discharge on _habeas corpus_ because the chancellor had no jurisdiction to
make the decree, being interested in the cause himself. But the Court of
Queen's Bench held that if that was a defence it should have been made on
the trial for contempt, and the conviction was conclusive. We cannot
choose but hold the same rule here. Any other would be a violation of the
law which is established and sustained by all authority and all reason.

But certainly the want of jurisdiction alleged in this case would not even
have been a defence on the trial. The proposition that a court is
powerless to punish for disorderly conduct, or disobedience of its process
in a case which it ought ultimately to dismiss, for want of jurisdiction,
is not only unsupported by judicial authority, but we think it is new even
as an argument at the bar. We, ourselves, have heard many cases through
and through before we became convinced that it was our duty to remit the
parties to another tribunal. But we never thought that our process could
be defied in such cases more than in others.

There are some proceedings in which the want of jurisdiction would be seen
at the first blush; but there are others in which the court must inquire
into all the facts before it can possibly know whether it has jurisdiction
or not. Any one who obstructs or baffles a judicial investigation for that
purpose, is unquestionably guilty of a crime, for which he may, and ought
to be tried, convicted, and punished. Suppose a local action to be brought
in the wrong county; this is a defence to the action, but a defence which
must be made out like any other. While it is pending, neither a party, nor
an officer, nor any other person, can safely insult the court, or resist
its order. The court may not have power to decide upon the merits of the
case; but it has undoubted power to try whether the wrong was done within
its jurisdiction or not. Suppose Mr. Williamson to be called before the
circuit court of the United States as a witness in a trial for murder,
alleged to be committed on the high seas. Can he refuse to be sworn, and
at his trial for contempt, justify himself on the ground that the murder
was committed within the limits of a State, and thereby triable only in a
State court? If he can, he can justify perjury for the same reason. But
such a defence for either crime, has never been heard of since the
beginning of the world. Much less can it be shown, after conviction, as a
ground for declaring the sentence void.

The wish which the petitioner is convicted of disobeying was legal on its
face. It enjoined upon him a simple duty, which he ought to have
understood and performed without hesitation. That he did not do so is a
fact conclusively established by the adjudication which the court made
upon it. I say the wish was legal, because the act of Congress gives to
all the courts of the United States the power "to issue writs of _habeas
corpus_, when necessary for the exercise of their jurisdiction, and
agreeable to the principles and usages of law." Chief Justice Marshall
decided in Burr's trial, that the principles and usages referred to in
this act were those of the common law. A part of the jurisdiction of the
district court consists in restoring fugitive slaves; and the _habeas
corpus_ may be used in aid of it when necessary. It was awarded here upon
the application of a person who complained that his slaves were detained
from him. Unless they were fugitive slaves they could not be slaves at
all, according to the petitioner's own doctrine, and if the judge took
that view of the subject, he was bound to award the writ. If the persons
mentioned on it had turned out on the hearing to be fugitives from labor,
the duty of the district judge to restore them, or his power to bring them
before him on a _habeas corpus_, would have been disputed by none except
the very few who think that the constitution and law on that subject ought
not to be obeyed. The duty of the court to enquire into the facts on which
its jurisdiction depends is as plain as its duty not to exceed it when it
is ascertained. But Mr. Williamson stopped the investigation _in limine_;
and the consequence is, that every thing in the case remains unsettled,
whether the persons named in the writ were slaves or free.

Whether Mr. Wheeler was the owner of them--whether they were unlawfully
taken from him--whether the court had jurisdiction to restore them--all
these points are left open for want of a proper return. It is not our
business to say how they ought to be decided; but we doubt not that the
learned and upright magistrate who presides in the district court would
have decided them as rightly as any judge in all the country. Mr.
Williamson had no right to arrest the inquiry because he supposed that an
error would be committed on the question of jurisdiction, or any other
question. If the assertions which his counsel now make on the law and the
facts be correct, he prevented an adjudication in favor of his proteges,
and thus did them a wrong, which is probably a greater offence in his own
eyes than any thing he could do against Mr. Wheeler's rights. There is no
reason to believe that any trouble whatever would have come out of the
case, if he had made a true, full, and special return of all the facts;
for then the rights of all parties, black and white, could have been
settled, or the matter dismissed for want of jurisdiction, if the law so
required.

It is argued that the court had no jurisdiction, because it was not
averred that the slaves were fugitives, but merely that they owed service
by the laws of Virginia. Conceding, for the argument's sake, that this was
the only ground on which the court could have interfered--conceding that
it is not substantially alleged in the petition of Mr. Wheeler--the
proceedings were, nevertheless, not void for that reason.

The federal tribunals, though courts of limited jurisdiction, are not
_inferior_ courts. Their judgments, until reversed by the proper appellate
court, are valid and conclusive upon the parties, though the jurisdiction
be not alleged in the pleadings nor on any part of the record. (10
Wheaton, 192.) Even if this were not settled and clear law, it would still
be certain that the fact on which jurisdiction depends need not be stated
_in the process_. The want of such a statement in the body of the _habeas
corpus_, or in the petition on which it was awarded, did not give Mr.
Williamson a right to treat it with contempt. If it did, then the courts
of the United States must get out the ground of their jurisdiction in
every subpoena for a witness; and a defective or untrue averment will
authorize the witness to be as contumacious as he sees fit.

But all that was said in the argument about the petition, the writ, and
the facts which were proved or could be proved, refers to the _evidence_
in which the conviction took place. This has passed _in rem judicatam_. We
cannot go one step behind the conviction itself. We could not reverse it
if there had been no evidence at all. We have no more authority in law to
come between the prisoner and the court to free him from a sentence like
this, than we would have to countermand an order issued by the
commander-in-chief to the United States army.

We have no authority, jurisdiction, or power to decide any thing here
except the simple fact that the district court had power to punish for
contempt, a person who disobeys its process--that the petitioner is
convicted of such contempt--and that the conviction is conclusive upon us.
The jurisdiction of the court on the case which had been before it, and
every thing else which preceded the conviction, are out of our reach, and
they are not examinable by us--and, of course, not now intended to be
decided.

There may be cases in which we ought to check usurpation of power by the
Federal courts. If one of them would presume, upon any pretence whatever,
to take out of our hands a prisoner convicted of contempt in this court,
we would resist it by all proper and legal means. What we would not permit
them to do against us we will not do against them.

We must maintain the rights of the State and its courts, for to them
alone can the people look for a competent administration of their domestic
concerns; but we will do nothing to impair the constitutional vigor of the
general government, which is "the sheet anchor of our peace at home and
our safety abroad."

Some complaint was made in the argument about the sentence being for an
indefinite time. If this were erroneous it would not avail here, since we
have as little power to revise the judgment for that reason as for any
other. But it is not illegal nor contrary to the usual rule in such cases.
It means commitment until the party shall make proper submission. (3 Lord
Raymond, 1108. 4 Johns. Rep. 375.)

The law will not bargain with anybody to let its courts be defied for a
specific term of imprisonment. There are many persons who would gladly
purchase the honors of martyrdom in a popular cause at almost any given
price, while others are deterred by a mere show of punishment. Each is
detained until he finds himself willing to conform. This is merciful to
the submissive and not too severe upon the refractory. The petitioner,
therefore, carries the key of his prison in his own pocket. He can come
out when he will, by making terms with the court that sent him there. But
if he choose to struggle for a triumph--if nothing will content him but a
clean victory or a clean defeat--he cannot expect us to aid him. Our
duties are of a widely different kind. They consist in discouraging as
much as in us lies all such contests with the legal authorities of the
country. _The writ of habeas corpus is refused._


No. IV.

_The dissenting opinion of Judge Knox in favor of granting the petition._

KNOX, J. I do not concur in the opinion of the majority of this court
refusing the writ of _habeas corpus_, and shall state the reasons why, in
my judgment, the writ should be granted.

This application was made to the court whilst holding a special session at
Bedford, on the 13th day of August; and upon an intimation from the
counsel that in case the court had any difficulty upon the question of
awarding the writ, they would like to be heard, Thursday, the 16th of
August, was fixed for the hearing. On that day an argument was made by
Messrs. Meredith and Gilpin, in favor of the allowance of the writ.

I may as well remark here, that upon the presentation of the petition I
was in favor of awarding the _habeas corpus_, greatly preferring that the
right of the petitioner to his discharge should be determined upon the
return of the writ. If this course had been adopted, we should have had
the views of counsel in opposition to the discharge, and, moreover, if
necessary, we could, after the return, have examined into the facts of the
case.

I am in favor of granting this writ, first, because I believe the
petitioner has the right to demand it at our hands. From the time of Magna
Charta the writ of _habeas corpus_ has been considered a writ of right,
which every person is entitled to _ex debito justiciæ_. "But the benefit
of it," says Chancellor Kent, "was in a great degree eluded in England
prior to the statute of Charles II., as the judges only awarded it in term
time, and they assumed a discretionary power of awarding or refusing it."
2 Kent Commentaries, 26. And Bacon says, "Notwithstanding the writ of
_habeas corpus_ be a writ of right, and what the subject is entitled to,
yet the provision of the law herein being in a great measure eluded by the
judge as being only enabled to award it in term time, as also by an
imagined notion of the judges that they had a discretionary power of
granting or refusing it," the act of 31 Charles II. was made for remedy
thereof.

I am aware that both in England and this country, since the passage of the
statute of Charles II., it has been held that where it clearly appeared
that the prisoner must be remanded, it was improper to grant the writ; but
I know of no such construction upon our act of 18th February, 1785. The
people of the United States have ever regarded the privileges of the
_habeas corpus_ as a most invaluable right, to secure which, an
interdiction against its suspension, "unless when in cases of rebellion or
invasion the public safety may require it," is inserted in the organic law
of the Union; and in addition to our act of 1785, which is broader and
more comprehensive than the English statute, a provision in terms like
that in the constitution of the United States is to be found in the
constitution of this State.

It is difficult to conceive how words could be more imperative in their
character than those to be found in our statute of 1785. The judges named
are authorized and required, either in vacation or term time, upon the due
application of any person committed or detained for any criminal or
supposed criminal matter, except for treason or felony, or confined or
restrained of his or her liberty, under any color or pretence whatsoever,
to award and grant a _habeas corpus_, directed to the person or persons in
whose custody the prisoner is detained, returnable immediately. And the
refusal or neglect to grant the writ required by the act to be granted,
renders the judge so neglecting or refusing liable to the penalty of three
hundred pounds.

I suppose no one will doubt the power of the legislature to require this
writ to be issued by the judges of the commonwealth. And it is tolerably
plain that where, in express words, a certain thing is directed to be
done, to which is added a penalty for not doing it, no discretion is to be
used in obeying the mandate.

The English statute confined the penalty to a neglect or refusal to grant
the writ in vacation time, and from this a discretionary power to refuse
it in term time was inferred, but our act of Assembly does not limit the
penalty to a refusal in vacation, but is sufficiently comprehensive to
embrace neglect or refusal in vacation or in term time.

I have looked in vain through the numerous cases reported in this State to
find that the writ was ever denied to one whose application was in due
form, and whose case was within the purview of the act of Assembly.

In _Respublica_ v. _Arnold_, 3 Yates, 263, the writ was refused because
the petitioner was not restrained of his liberty, and therefore not within
the terms of the statute; and in _Ex parte Lawrence_, 5 Binney, 304, it
was held that the act of Assembly did not oblige the court to grant a
_habeas corpus_ where the case had already been heard upon the same
evidence by another court. Without going into an examination of the
numerous cases where the writ has been allowed, I believe it can be safely
affirmed that the denial of the writ in a case like the present is without
a precedent, and contrary to the uniform practice of the bench, and
against the universal understanding of the profession and the people; but
what is worse still, it appears to me to be in direct violation of the law
itself.

It may be said that the law never requires a useless thing to be done.
Grant it. But how can it be determined to be useless until the case is
heard? Whether there is ground for the writ is to be determined according
to law, and the law requires that the determination should follow, not
precede the return.

An application was made to the chief justice of this court for a writ of
_habeas corpus_ previous to the application now being considered. The writ
was refused, and it was stated in the opinion that the counsel for the
petitioner waived the right to the writ, or did not desire it to be
issued, if the chief justice should be of the opinion that there was not
sufficient cause set forth in the petition for the prisoner's discharge.
But this can in nowise prejudice the petitioner's right to the writ which
he now demands. Even had the writ been awarded, and the case heard, and
the discharge refused, it would not be within the decision in _Ex parte
Lawrence_, for there the hearing was before a court in term time, upon a
full examination of the case upon evidence adduced, and not at chambers;
but the more obvious distinction here is that the writ has never been
awarded. And the agreement of counsel that it should not be in a certain
event, even if binding upon the client there, would not affect him here.

Now, while I aver that the writ of _habeas corpus, ad subjiciendum_, is a
writ of right, I do not wish to be understood that it should issue as a
matter of course. Undoubtedly the petition must be in due form, and it
must show upon its face that the petitioner is entitled to relief. It may
be refused if, upon the application itself, it appears that, if admitted
to be true, the applicant is not entitled to relief; but where, as in the
case before us, the petition alleges an illegal restraint of the
petitioner's liberty, under an order from a judge beyond his jurisdiction,
we are bound in the first place to take the allegation as true; and so
taking it, a probable cause is made out, and there is no longer a
discretionary power to refuse the writ. Whether the allegation of the want
of jurisdiction is true or not, is determinable only upon the return of
the writ.

If one has averred in his petition what, if true, would afford him relief,
it is his constitutional right to be present when the truth of his
allegations is inquired into; and it is also his undoubted right, under
our _habeas corpus_ act, to establish his allegations by evidence to be
introduced and heard upon the return of the writ. To deny him the writ is
virtually to condemn him unheard; and as I can see nothing in this case
which requires at our hands an extraordinary resistance against the prayer
of the petitioner to show that his imprisonment is illegal, that he is
deprived of his liberty without due course of law. I am in favor of
treating him as like cases have uniformly been treated in this
commonwealth, by awarding the writ of _habeas corpus_, and reserving the
inquiry as to his right to be discharged until the return of the writ; but
as a majority of my brethren have come to a different conclusion, we must
inquire next into the right of the applicant to be discharged as the case
is now presented.

I suppose it to be undoubted law that in a case where a court acting
beyond its jurisdiction has committed a person to prison, the prisoner,
under our _habeas corpus_ act, is entitled to his discharge, and that it
makes no difference whether the court thus transcending its jurisdiction
assumes to act as a court of the Union or of the commonwealth. If a
principle, apparently so just and clear, needs for its support adjudicated
cases, reference can be had to _Wise_ v. _Withers_, 3 Cranch, 331; 1
Peters, Condensed Rep. 552; _Rose_ v. _Hinely_, 4 Cranch, 241, 268; _Den_
v. _Harden_, 1 Paine, Rep. 55, 58 and 59; 3 Cranch, 448; _Bollman_ v.
_Swartout_, 4 Cranch, 75; Kearney's case, 7 Wheaton, 38; _Kemp_ v.
_Kennedy_, 1 Peters, C. C. Rep. 36; _Wickes_ v. _Calk_, 5 Har. and J. 42;
_Griffith_ v. _Frazier_, 8 Cranch, 9; _Com._ v. _Smith_, Sup. Court
Penn., 1 Wharton Digest, 321; _Com. ex relatione Lockington_ v. _The
Jailer_, &c., Sup. Court manuscript, 1814, Wharton's Digest, vol. i. 321;
_Albec_ v. _Ward_, 8 Mass. 86.

Some of these cases decide that the act of a court without jurisdiction is
void; some, that the proper remedy for an imprisonment by a court having
no jurisdiction is the writ of _habeas corpus_; and others, that it may
issue from a state court to discharge a prisoner committed under process
from a federal court, if it clearly appears that the federal court had no
jurisdiction of the case; altogether, they establish the point that the
petitioner is entitled to relief, if he is restrained of his liberty by a
court acting beyond its jurisdiction.

Neither do I conceive it to be correct to say that the applicant cannot
now question the jurisdiction of the judge of the district court because
he did not challenge it on the hearing. There are many rights and
privileges which a party to a judicial controversy may lose if not claimed
in due time, but not so the question of jurisdiction; this cannot be given
by express consent, much less will acquiescence for a time waive an
objection to it. (See U. S. Digest, vol. i. p. 639, Pl. 62, and cases
there cited.) It would be a harsh rule to apply to one who is in prison
"without bail or mainprize," that his omission to speak on the first
opportunity forever closed his mouth from denying the power of the court
to deprive him of his liberty. I deny that the law is a trap for the feet
of the unwary. Where personal liberty is concerned, it is a shield for the
protection of the citizen, and it will answer his call even if made after
the prison door has been closed on him.

If, then, the want of jurisdiction is fatal, and the inquiry as to its
existence is still open, the only question that remains to be considered
is this: Had the judge of the district court for the eastern district of
the United States power to issue the writ of _habeas corpus_, directed to
Passmore Williamson, upon the petition of John H. Wheeler? The power of
that court to commit for a contempt is not denied, and I understand it to
be conceded as a general rule by the petitioner's counsel, that one court
will not reëxamine a commitment for contempt by another court of competent
jurisdiction; but if the court has no authority to issue the writ, the
respondent was not bound to answer it, and his neglect or refusal to do
so would not authorize his punishment for contempt.

The first position which I shall take in considering the question of
jurisdiction, is that the courts of the United States have no power to
award the writ of _habeas corpus_ except such as is given to them by the
acts of Congress.

"Courts which originate in the common law possess a jurisdiction which
must be regulated by the common law; but the courts which are created by
written law, and whose jurisdiction is defined by written law, cannot
transcend their jurisdiction. The power to award the writ by any of the
courts of the United States must be given by written law." _Ex parte
Swartout_, 4 Cranch, 75. _Ex parte Barre_, 2 Howard, 65. The power of the
United States to issue writs of _habeas corpus_ is derived either from the
fourteenth section of the act of 24th September, 1789, or from the seventh
section of the act of March 2, 1833.

The section from the act of 1789 provides that "all the courts of the
United States may issue writs of _scire facias_, _habeas corpus_, and all
other writs not especially provided for by statute, which may be necessary
for the exercise of their respective jurisdictions, and agreeable to the
principles and usages of law. And either of the justices of the supreme
court, as well as the judges of the district courts, may grant writs of
_habeas_, for the purpose of inquiry into the cause of commitment; but
writs of _habeas corpus_ shall in no case extend to prisoners in jail,
unless they are in custody under or by color of the authority of the
United States, or are committed for trial before some court of the same,
or are necessary to be brought into court to testify." The seventh section
of the act of 2d March, 1833, authorizes "either of the justices of the
supreme court, or judge of any district court of the United States, in
addition, to the authority already conferred by law, to grant writs of
_habeas corpus_ in all cases of a prisoner or prisoners in jail or
confinement, where he or they shall be committed or confined on or by
authority of law, for any act done, or omitted to be done, in pursuance of
a law of the United States, or any order, process, or decree of any judge
or court thereof, any thing in any act of Congress to the contrary
notwithstanding."

Now, unless the writ of _habeas corpus_ issued by the judge of the
district court was necessary for the exercise of the jurisdiction of the
said court, or was to inquire into a commitment under, or by color of the
authority of the United States, or to relieve some one imprisoned for an
act done, or omitted to be done, in pursuance of a law of the United
States, the district court had no power to issue it, and a commitment for
contempt in refusing to answer it is an illegal imprisonment, which,
under our _habeas corpus_ act, we are imperatively required to set aside.

It cannot be pretended that the writ was either asked for or granted to
inquire into any commitment made under or by color of the authority of the
United States, or to relieve from imprisonment for an act done or omitted
to be done in pursuance of a law of the United States, and therefore we
may confine our inquiry solely to the question whether it was necessary
for the exercise of any jurisdiction given to the district court of the
United States for the eastern district of Pennsylvania.

This brings us to the question of the jurisdiction of the courts of the
United States, and more particularly that of the district court. And here,
without desiring, or intending to discuss at large the nature and powers
of the federal government, it is proper to repeat what has been so often
said, and what has never been denied, that it is a government of
enumerated powers, delegated to it by the several States, or the people
thereof, without capacity to enlarge or extend the powers so delegated and
enumerated, and that its courts of justice are courts of limited
jurisdiction, deriving their authority from the constitution of the United
States, and the acts of Congress under the constitution. Let us see what
judicial power was given by the people to the Federal government, for that
alone can be rightly exercised by its courts.

"The judicial power" (says the second section of the third article) "shall
extend to all cases in law and equity arising under this constitution, the
laws of the United States, and treaties made, or which shall be made under
their authority, to all cases affecting embassadors, other public
ministers and consuls, to all cases of admiralty and maritime
jurisdiction, to controversies to which the United States shall be a
party, to controversies between two or more States, between a State and
citizen of another State, between citizens of different States, between
citizens of the same State, claiming lands under grants of different
States, and between a State, or the citizen thereof, and foreign States,
citizens or subjects."

The amendments subsequently made to this article have no bearing upon the
question under consideration, nor is it necessary to examine the various
acts of Congress conferring jurisdiction upon the courts of the United
States, for no act of Congress can be found extending the jurisdiction
beyond what is given by the constitution, so far as relates to the
question we are now considering. And if such an act should be passed it
would be in direct conflict with the tenth amended article of the
constitution, which declares that "the 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."

If this case can be brought within the judicial power of the courts of the
United States, it must be either--

1st. Because it arises under the Constitution or the laws of the United
States.

Or, 2d. Because it is a controversy between citizens of different States,
for it is very plain that there is no other clause in the Constitution
which, by the most latitudinarian construction, could be made to include
it.

Did it arise under the Constitution or the laws of the United States? In
order to give a satisfactory answer to this question, it is necessary to
see what the case was.

If we confine ourselves strictly to the record from the district court, we
learn from it that, on the 18th day of July last, John H. Wheeler
presented his petition to the Hon. J. K. Kane, judge of the district court
for the eastern district of Pennsylvania, setting forth that he was the
owner of three persons held to service or labor by the laws of the State
of Virginia; such persons being respectively named Jane, aged about
thirty-five years, Daniel, aged about twelve years, and Isaiah, aged about
seven years, persons of color; and that they were detained from his
possession by Passmore Williamson, but not for any criminal or supposed
criminal matter. In accordance with the prayer of the petition, a writ of
_habeas corpus_ was awarded, commanding Passmore Williamson to bring the
bodies of the said Jane, Daniel, and Isaiah, before the judge of the
district court, forthwith. To this writ, Passmore Williamson made a
return, verified by his affirmation, that the said Jane, Daniel, and
Isaiah, nor either of them, were at the time of the issuing of the writ,
nor at the time of the return, nor at any other time, in the custody,
power, or possession of, nor confined, nor restrained their liberty by
him; and that, therefore, he could not produce the bodies as he was
commanded.

This return was made on the 20th day of July, A. D. 1855. "Whereupon,
afterwards, to wit: On the 27th day of July, A. D. 1855, (says the
record,) the counsel for the several parties having been heard, and the
said return having been duly considered, it is ordered and adjudged by the
court that the said Passmore Williamson be committed to the custody of the
marshal, without bail or mainprize, as for a contempt in refusing to make
return to the writ of _habeas corpus_, heretofore issued against him, at
the instance of Mr. John H. Wheeler."

Such is the record. Now, while I am willing to admit that the want of
jurisdiction should be made clear, I deny that in a case under our _habeas
corpus_ act the party averring want of jurisdiction cannot go behind the
record to establish its non-existence. Jurisdiction, or the absence
thereof, is a mixed question of law and fact. It is the province of fact
to ascertain what the case is, and of law to determine whether the
jurisdiction attaches to the case so ascertained. "And" says the second
section of our act of 1785, "that the said judge or justice may, according
to the intent and meaning of this act, be enabled, by investigating the
truth of the circumstances of the case, to determine whether, according to
law, the said prisoner ought to be bailed, remanded, or discharged, the
return may, before or after it is filed, by leave of the said judge or
justice, be amended, and also suggestions made against it, so that thereby
material facts may be ascertained."

This provision applies to cases of commitment or detainer for any criminal
or supposed criminal matter, but the fourteenth section, which applies to
cases of restraint of liberty "under any color or pretence whatever,"
provides that "the court, judge, or justice, before whom the party so
confined or restrained shall be brought, shall, after the return made,
proceed in the same manner as is hereinbefore prescribed, to examine into
the facts relating to the case, and into the cause of such confinement or
restraint, and thereupon either bail, remand, or discharge the party so
brought, as to justice shall appertain."

The right and duty of the supreme court of a State to protect a citizen
thereof from imprisonment by a judge of a United States court having no
jurisdiction over the cause of complaint, is so manifest and so
essentially necessary under our dual system of government, that I cannot
believe that this right will ever be abandoned or the duty avoided; but,
if we concede, what appears to be the law of the later cases in the
Federal courts, that the jurisdiction need not appear affirmatively, and
add to it that the want of jurisdiction shall not be proved by evidence
outside of the record, we do virtually deny to the people of the State the
right to question the validity of an order by a Federal judge consigning
them to the walls of a prison "without bail or mainprize."

What a mockery to say to one restrained of his liberty, "True, if the
judge or court under whose order you are in prison acted without
jurisdiction, you are entitled to be discharged, but the burden is upon
you to show that there was no jurisdiction, and in showing this we will
not permit you to go beyond the record made up by the party against whom
you complain!"

As the petitioner would be legally entitled, upon the return of the writ,
to establish the truth of the facts set forth in his petition, so far as
they bear upon the question of jurisdiction, we are bound before the
return to assume that the facts are true as stated, and so taking them,
the case is this:

John H. Wheeler voluntarily brought into the State of Pennsylvania three
persons of color, held by him in the State of Virginia as slaves, with the
intention of passing through this State. While on board of a steamboat
near Walnut Street wharf, in the city of Philadelphia, the petitioner,
Passmore Williamson, informed the mother that she was free by the laws of
Pennsylvania, who, in the language of the petition, "expressed her desire
to have her freedom; and finally, with her children, left the boat of her
own free will and accord, and without coercion or compulsion of any kind;
and having seen her in possession of her liberty with her children, your
petitioner (says the petition) returned to his place of business, and has
never since seen the said Jane, Daniel, and Isaiah, or either of them, nor
does he know where they are, nor has he had any connection of any kind
with the subject."

One owning slaves in a slave State voluntarily brings them into a free
State, with the intention of passing through the free State. While there,
upon being told that they are free, the slaves leave their master. Can a
judge of the district court of the United States compel their restoration
through the medium of a writ of _habeas corpus_ directed to the person by
whom they were informed of their freedom? Or, in other words, is it a case
arising under the constitution and laws of the United States?

What article or section of the constitution has any bearing upon the right
of a master to pass through a free State with his slave or slaves? Or,
when has Congress ever attempted to legislate upon this question? I most
unhesitatingly aver that neither in the constitution of the United States
nor in the acts of Congress can there be found a sentence which has any
effect upon this question whatever. It is a question to be decided by the
law of the State where the person is for the time being, and that law must
be determined by the judges of the State, who have sworn to support the
constitution of the State as well as that of the United States--an oath
which is never taken by a Federal judge.

Upon this question of jurisdiction it is wholly immaterial whether by the
law of Pennsylvania a slaveholder has or has not the right of passing
through our State with his slaves. If he has the right, it is not in
virtue of the constitution or laws of the United States, but by the law of
the State, and if no such right exists, it is because the State law has
forbidden it, or has failed to recognize it. It is for the State alone to
legislate upon this subject, and there is no power on earth to call her
to an account for her acts of omission and commission in this behalf.

If this case, by any reasonable construction, be brought within the terms
of the third clause of the second section of article four of the
constitution of the United States, jurisdiction might be claimed for the
federal courts, as then it would be a case arising under the constitution
of the United States, although I believe the writ of _habeas corpus_ is no
part of the machinery designed by Congress for the rendition of fugitives
from labor.

"No person (says the clause above mentioned) held to service or labor in
one State under the laws thereof escaping into another shall, in
consequence of any law or regulation therein, be discharged from such
service or labor, but shall be delivered up on claim of the party to whom
such service or labor may be due." By reference to the debates in the
convention, it will be seen that this clause was inserted at the request
of delegates from southern states, and on the declaration that in the
absence of a constitutional provision the right of reclamation would not
exist unless given by state authority. If it had been intended to cover
the right of transit, words would have been used evidencing such
intention. Happily there is no contrariety in the construction which has
been placed upon this clause in the constitution. No judge has ever so
manifestly disregarded its plain and unequivocal language as to hold that
it applies to a slave voluntarily brought into a free State by his master.
On the contrary, there is abundant authority that such a case is not
within either the letter or the spirit of the constitutional provision for
the rendition of fugitives from labor. Said Mr. Justice Washington, _Ex
parte Simmons_, 6 W. C. C. Reports, 396:--"The slave in this case having
been voluntarily brought by his master into this State, I have no
cognizance of the case, so far as respects this application, and the
master must abide by the laws of this State, so far as they may affect his
right. If the man claimed as a slave be not entitled to his freedom under
the laws of this State, the master must pursue such remedy for his
recovery as the laws of the State have provided for him."

In _Jones_ v. _Vanzandt_, 5 Howard, 229, Mr. Justice Woodbury uses
language equally expressive: "But the power of national law," said that
eminent jurist, "to pursue and regain most kinds of property in the limits
of a foreign government is rather an act of comity than strict right, and
hence as property in persons might not thus be recognized in some of the
states in the Union, and its reclamation not be allowed through either
courtesy or right, this clause was undoubtedly introduced into the
constitution as one of its compromises for the safety of that portion of
the Union which did not permit such property, and which otherwise might
often be deprived of it entirely by its merely crossing the line of an
adjoining state; this was thought to be too harsh a doctrine in respect to
any title to property of a friendly neighbor, not brought nor placed in
another state under state laws by the owner himself, but escaping there
against his consent, and often forthwith pursued in order to be
reclaimed."

Other authorities might be quoted to the same effect, but it is
unnecessary, for if it be not clear that one voluntarily brought into a
state is not a fugitive, no judicial language can ever make him so. Will
we then, for the sake of sustaining this jurisdiction, presume that these
slaves of Mr. Wheeler escaped from Virginia into Pennsylvania, when no
such allegation was made in his petition, when it is expressly stated in
the petition of Mr. Williamson, verified by his affirmation, that they
were brought here voluntarily by their master, and when this fact is
virtually conceded by the judge of the district court in his opinion?
Great as is my respect for the judicial authorities of the federal
government, I cannot consent to stultify myself in order to sustain their
unauthorized judgments, and more particularly where, as in the case before
us, it would be at the expense of the liberty of a citizen of this
commonwealth.

The only remaining ground upon which this jurisdiction can be claimed, is
that it was in a controversy between citizens of different states, and I
shall dismiss this branch of the case simply by affirming--1, that the
proceeding by _habeas corpus_ is in no legal sense a controversy between
private parties; and 2, if it were, to the circuit court alone is given
this jurisdiction. For the correctness of the first position, I refer to
the opinion of Mr. Justice Baldwin in _Holmes_ v. _Jennifer_, published in
the appendix to 14 Peters, and to that of Judge Betts, of the circuit
court of New York, in _Berry_ v. _Mercein et al._ reported in 5 Howard,
103. And for the second, to the 11th section of the judiciary act, passed
on the 24th of September, 1789.

My view of this case had been committed to writing before I had seen or
heard the opinion of the majority of the court. Having heard it hastily
read but once, I may mistake its purport, but if I do not, it places the
refusal of the _habeas corpus_ mainly upon the ground that the conviction
for contempt was a separate proceeding, and that, as the district court
had jurisdiction to punish for contempts, we have no power to review its
decision. Or, as it appears from the record that the prisoner is in
custody upon a conviction for contempt, we are powerless to grant him
relief.

Notwithstanding the numerous cases that are cited to sustain this
position, it appears to me to be as novel as it is dangerous. Every court
of justice in this country has, in some degree, the power to commit for
contempt. Can it be possible that a citizen once committed for contempt is
beyond the hope of relief, even although the record shows that the alleged
contempt was not within the power of the court to punish summarily?
Suppose that the judge of the district court should send to prison an
editor of a newspaper for a contempt of his court in commenting upon his
decision in this very case; would the prisoner be beyond the reach of our
writ of _habeas corpus_? If he would, our boasted security of personal
liberty is in truth an idle boast, and our constitutional guaranties and
writs of right are as ropes of sand. But in the name of the law, I aver
that no such power exists with any court or judge, state or federal, and
if it is attempted to be exercised, there are modes of relief, full and
ample, for the exigency of the occasion.

I have not had either time or opportunity to examine all of the cases
cited, but, as far as I have examined them, they decide this and nothing
more--that where a court of competent jurisdiction convicts one of a
contempt, another court, without appellate power, will not reëxamine the
case to determine whether a contempt was really committed or not. The
history of punishments for contempts of courts, and the legislative action
thereon, both in our State and Union, in an unmistakable manner teaches,
first, the liability of this power to be abused; and second, the
promptness with which its unguarded use has been followed by legislative
restrictions. It is no longer an undefined, unlimited power of a star
chamber character, to be used for the oppression of the citizen at the
mere caprice of the judge or court, but it has its boundaries so
distinctly defined that there is no mistaking the extent to which our
tribunals of law may go in punishment for this offence.

In the words of the act of Congress of 2d March, 1831, "The power of the
several courts of the United States to issue attachments and inflict
summary punishments for contempts of court, shall not be construed to
extend to any cases except the misbehavior of any person or persons in the
presence of said courts, or so near thereto as to obstruct the
administration of justice, the misbehavior of any of the officers of the
said courts in their official transactions, and the disobedience or
resistance by any officer of the said courts, party, jurors, witness, or
any other person or persons, to any _lawful_ writ, process, order, rule,
decree or command of said courts."

Now, Passmore Williamson was convicted of a contempt for disobeying a
writ of _habeas corpus_, commanding him to produce before the district
court certain persons claimed by Mr. Wheeler as slaves. Was it a lawful
writ? Clearly not, if the court had no jurisdiction to issue it; and that
it had not I think is very plain. If it was unlawful, the person to whom
it was directed was not bound to obey it; and, in the very words of the
statute, the power to punish for contempt "shall not be construed to
extend to it."

But, says the opinion of the majority, he was convicted of a contempt of
court, and we will not look into the record to see how the contempt was
committed. I answer this by asserting that you cannot see the conviction
without seeing the cause: 1, the petition; 2, the writ and the alias writ
of _habeas corpus_; 3, the return; and 4, the judgment.

"It is ordered and adjudged by the court that the said Passmore Williamson
be committed to the custody of the marshal without bail or mainprize, as
for a contempt in refusing to make return to the writ of _habeas corpus_
heretofore issued against him at the instance of Mr. John H. Wheeler." As
I understand the opinion of a majority of my brethren, as soon as we get
to the word contempt the book must be closed, and it becomes instantly
sealed as to the residue of the record. To sustain this commitment we
must, it seems, first presume, in the very teeth of the admitted fact,
that these were runaway slaves; and second, we must be careful to read
only portions of the record, lest we should find that the prisoner was
committed for refusing to obey an unlawful writ.

I cannot forbear the expression of the opinion that the rule laid down in
this case by the majority is fraught with great danger to the most
cherished rights of the citizens of the State. While in contests involving
the right of property merely, I presume we may still treat these judgments
of the United States courts, in cases not within their jurisdiction, as
nullities; yet, if a single judge thinks proper to determine that one of
our citizens has been guilty of contempt, even if such determination had
its foundation in a case upon which the judge had no power to pronounce
judgment, and was most manifestly in direct violation of a solemn act of
the very legislative authority that created the court over which the judge
presides, it seems that such determination is to have all the force and
effect of a judgment pronounced by a court of competent jurisdiction,
acting within the admitted sphere of its constitutional powers.

Nay, more. We confess ourselves powerless to protect our citizens from the
aggressions of a court, as foreign from our state government in matters
not committed to its jurisdiction as the Court of Queen's Bench in
England, and this upon the authority of decisions pronounced in cases not
at all analogous to the one now under consideration. I believe this to be
the first recorded case where the supreme court of a state has refused the
prayer of a citizen for the writ of _habeas corpus_ to inquire into the
legality of an imprisonment by a judge of a federal court for contempt, in
refusing obedience to a writ void for want of jurisdiction.

I will conclude by recapitulating the grounds upon which I think this writ
should be awarded.

1. At common law, and by our statute of 1785, the writ of _habeas corpus
ad sufficiendum_, is a writ of right, demandable whenever a petition in
due form asserts what, if true, would entitle the party to relief.

2. That an allegation in a petition that the petitioner is restrained of
his liberty by an order of a judge or court without jurisdiction, shows
such probable cause as to leave it no longer discretionary with the court
or judge to whom application is made whether the writ shall or shall not
issue.

3. That where a person is imprisoned by an order of a judge of the
district court of the United States for refusing to answer a writ of
_habeas corpus_, he is entitled to be discharged from such imprisonment if
the judge of the district court had no authority to issue the writ.

4. That the power to issue writs of _habeas corpus_ by the judges of the
federal courts is a mere auxiliary power, and that no such writ can be
issued by such judges where the cause of complaint to be remedied by it is
beyond their jurisdiction.

5. That the courts of the federal government are courts of limited
jurisdiction, derived from the constitution of the United States and the
acts of Congress under the constitution, and that when the jurisdiction is
not given by the constitution or by Congress in pursuance of the
constitution, it does not exist.

6. That when it does not appear by the record that the court had
jurisdiction in a proceeding under our _habeas corpus_ act to relieve from
an illegal imprisonment, want of jurisdiction may be established by
parole.

7. That where the inquiry as to the jurisdiction of a court arises upon a
rule for a _habeas corpus_, all the facts set forth in the petition
tending to show want of jurisdiction are to be considered as true, unless
they contradict the record.

8. That where the owner of a slave voluntarily brings his slave from a
slave to a free State, without any intention of remaining therein, the
right of the slave to his freedom depends upon the law of the State into
which he is thus brought.

9. That if a slave so brought into a free State escapes from the custody
of his master while in said State, the right of the master to reclaim him
is not a question arising under the constitution of the United States or
the laws thereof; a judge of the United States cannot issue a writ of
_habeas corpus_ directed to one who it is alleged withholds the possession
of the slave from the master, commanding him to produce the body of the
slave before said judge.

10. That the district court of the United States for the eastern district
of Pennsylvania has no jurisdiction because a controversy is between
citizens of different States, and that a proceeding by _habeas corpus_ is,
in no legal sense, a controversy between private parties.

11. That the power of the several courts of the United States to inflict
summary punishment for contempt of court in disobeying a writ of the
court, is expressly confined to cases of disobedience to "lawful" writs.

12. That where it appears from the record that the conviction was for
disobeying a writ of _habeas corpus_, which writ the court have no
jurisdiction to issue, the conviction is _coram non judice_, and void.

For these reasons I do most respectfully, but most earnestly, dissent from
the judgment of the majority of my brethren refusing the writ applied for.


No. V.

_How Passmore Williamson was finally discharged._

Previously to the application on Williamson's behalf to the supreme court
of Pennsylvania, Jane Johnson, the woman who, and her two sons, were
claimed as slaves by Wheeler, had appeared before Judge Culver of New
York, and had made an affidavit that the plan of claiming her freedom and
that of her children had originated entirely with herself; that it was
through her means that Williamson was made acquainted with her desire in
that behalf; and that all he had done, after coming on board the boat, was
to assure her and her claimant that she and her children were free, to
advise her to leave the boat, and to interfere to prevent Wheeler from
detaining her. The same facts she had afterwards testified to in open
court in Philadelphia, on the trial for assault and riot of the colored
men who had assisted her to escape.

After the failure of the application to the supreme court of Pennsylvania,
certain persons, indignant at this refusal of justice and at the
continuation of Williamson's false imprisonment, but acting wholly
independently of him, induced Jane Johnson to present a petition to Judge
Kane, setting forth all the above facts, and praying that as the writ of
_habeas corpus_ obtained by Wheeler under pretence of delivering her from
imprisonment and detention had been obtained without her privity or
consent, and on false pretences, the writ and all the proceedings under it
might be quashed. After argument upon the question of allowing this
petition to be filed, Judge Kane delivered a long and very elaborate
opinion, embracing three principal topics. He began with a very elaborate
eulogy upon the writ of _habeas corpus_, coming with a very singular grace
from a judge who had prostituted that writ to so vile a use, viz.: an
attempted kidnapping and the false imprisonment for a pretended contempt
of the man who had encouraged and assisted Jane Johnson to vindicate her
rights under the laws of Pennsylvania. Next followed Judge Kane's version
of his proceedings in committing Williamson, and an attempt to vindicate
himself therein; and to which succeeded a very labored effort at enforcing
his favorite doctrine, on which his whole proceeding had been based, that
slaveholders have a right to transport their slaves through Pennsylvania.

He refused to receive the petition of Jane Johnson, or to pay any
attention to its suggestions, on the following grounds:

"The very name of the person who authenticates the paper is a stranger to
any proceeding that is or has been before me. She asks no judicial action
for herself, and does not profess to have any right to solicit action on
behalf of another. On the contrary, her counsel have told me expressly
that Mr. Williamson has not sanctioned her application. She has therefore
no _status_ whatever in this court."

After the delivery of this opinion a little episode followed, evidently
got up with a view to relieve Judge Kane from a part of the odium under
which he was laboring, of which episode the following account was given in
the newspaper reports of the proceeding:--

"On the conclusion of the delivery of this opinion, John Cadwallader, (a
member of the bar, but not engaged in this case,) in order to remove a
false impression from the public mind, said, from his recollection of the
circumstances attending the commitment of Passmore Williamson, a
proposition was made to amend the return to the writ, when Judge Kane
replied:--'I will not receive an amendment now, but will be prepared to
receive it when the record has been completed.'

"No such motion was subsequently made, and the public impression that
permission to amend was refused, was not warranted by facts.

"Judge Kane replied that his (Mr. Cadwallader's) impression was correct.
He had been prepared to receive a supplementary return from Mr.
Williamson's counsel, but none had been offered.

"Mr. Cadwallader suggested that an addition be made to the opinion of the
court, embracing the remarks of a member of the bar not engaged in the
case, and the reply of the judge. He was induced to make the suggestion by
the best feeling towards a worthy but mistaken man, hoping it might lead
to the adoption of such a course as would end in his liberation.

"Mr. Cadwallader is to embody the remarks he made, when the judge will
follow with his answer, so as to complete the record."[158]

Some days after, (Oct. 26,) Messrs. Gilpin and Meredith, of counsel for
Williamson, appeared in Judge Kane's court, and asked leave to read a
petition from Williamson. This petition contained a statement of the facts
in relation to his connection with the liberation of Jane Johnson and her
children, similar to that contained in his petition to the supreme court
of Pennsylvania, Appendix. No. I. The following account of the proceedings
on this motion is taken from the _Philadelphia Gazette_:--

Judge Kane said, 'The court cannot hear an application from a party in
contempt, except to absolve him. I understand there is an application, by
petition, in the name of Passmore Williamson, which is not to relieve
himself from the contempt, but--'

Mr. Meredith then remarked something in an inaudible tone, and Judge Kane
said: 'Let us not be misunderstood--I am not prepared to receive an
application from Passmore Williamson, who is incarcerated for contempt of
this court, unless such petition be to relieve himself from contempt by
purgation. I am of opinion, unless otherwise instructed, that that is an
independent preliminary to any other application from him.

'If, therefore, the counsel arise to present an application from Mr.
Williamson, it must be for purgation. The counsel do not inform the court
whether they are here to purge Mr. Williamson from the contempt. As at
present advised, I have no power to hear their application, whatever it
may be, in his behalf.'

Mr. Meredith said there were two kinds of contempts; one of personal
insult to the bench, with which Passmore Williamson is not concerned; but
the contempt consisting in not making a proper return to the process of
the court.

Mr. Meredith then proceeded to argue that such a contempt could be purged
by making an answer to the court and paying the costs, which he was now
prepared to do.

Judge Kane said, that up to this moment there has been, on the part of the
individual to whom the function of the court has been delegated and
exercised in this matter, not a single particle of conscious excitement.
He did not believe it was in the power of the entire press of the United
States, after he had honestly administered his duty to the best of his
ability, to give him a pang, or produce one excited feeling; therefore,
now as heretofore, he looked upon the question as one that has no feeling
on the bench.

If he understood the remarks of Mr. Meredith, he meant to say to the court
that Passmore Williamson was desirous of testifying now his willingness to
obey the exigencies of the writ of _habeas corpus_. If so, he had a
simple, straightforward, honorable course to pursue. He has no need of
making a narrative of facts or arguments of protest; let him come forward
into court, declaring that he is willing to obey the writ issued by this
court; and when he has done that, in the estimation of the judge, he is
purged of his contempt.

Nothing on his part of personal offence was evinced to the court; his
demeanor was entirely respectful; but he failed to obey the writ which the
law issued to him; and when he has obeyed that writ, it will be the duty
of this court to free him. What is understood by 'purgation' is not simply
a mere form of words. It matters not about that, provided he received,
from the party who is in contempt for having disobeyed the process of the
court, the assurance that he is now prepared to obey such process, and,
until he is prepared to announce his disposition to obey, he could not
hear him upon any other subject which asserts that the court has erred
either in point of fact or law, or has exercised a jurisdiction which does
not belong to it. He said he would hear the counsel upon the question
whether the court can legally hear any other petition than the one of
purgation.

The respondent's counsel then proceeded to argue the right of the court to
hear a petition, other than of purgation, from Passmore Williamson.

Mr. Meredith said he had found nothing in the authorities, either English
or American, where persons were held guilty of a contempt in responding to
a writ of _habeas corpus_ unless the return was evasive. He referred to a
case in 3 Mason, where, in a return to a writ before Judge Story, there
was clearly an evasion shown on the face of the return.

Under these circumstances, Judge Story declared that the course of
practice was to propound interrogatories and compel the respondent to
disclose more fully. Mr. M. submitted whether it was not proper to subject
the petitioner in this case to a further questioning. He could not find in
English or American books any other course.

Mr. M. supposed that the respondent was committed until he should answer
interrogatories. Why had they not been propounded in the form that the
court might think proper to put them? No case could be shown in which a
defendant was to be committed for contempt, until he presented a prayer to
have interrogatories propounded to him. How is he to answer what has not
been filed?

According to the books, the defendant may come into court at any time, and
take advantage of an omission to file interrogatories within four days. If
another view should be taken by the court, he would then ask that an order
be made to show the defendant what he was to do to rid himself of the
contempt.

Judge Kane said that the defendant could make a declaration, that he was
now ready to answer interrogatories.

Mr. Meredith asked that the court make an order submitting certain
interrogatories, such as it would deem sufficient, to the prisoner, the
proper answers to which would be enough to purge him of the contempt.

The court then said, 'In some of the cases mentioned we know that the
party adjudged to be in contempt submitted himself to interrogatories,
either by writing or _per se_. I see no difficulty in the way of the
court's giving this decision in the form of an order.

'The suggestion of the counsel now has frequently been intimated by the
court. The prisoner might at any time, under a proper application, have
been before the court. If there was a misunderstanding of the position of
the case by the counsel for Mr. Williamson, it is a matter of sincere
regret to me.'

Mr. Meredith said he could not find any case of petition that
interrogatories should be filed, in any of the English books.

_Judge Kane._--The gentleman, Mr. Williamson, is now recusant, and I often
think that forms _sometimes_ have meaning and I cannot interfere otherwise
than to say as I have said above.

_Mr. Meredith._--I can enlarge the remark and say that forms _always_ have
meaning. He argued that the purging interrogatories must be filed. If not
filed, the party was entitled to his discharge. He argued from the
'Chancery Practice' of Smith, that the defendant ought only to be
imprisoned until he shall have properly answered the interrogatories put
to him.

Mr. Van Dyke, the district attorney, then said that the question now was
whether a person, in contempt, had any standing in court whatever. So far
as Mr. Williamson is concerned, he has no standing. The argument of the
gentlemen on the other side must be taken as arguing against the
adjudication of this court. How far can a man in contempt come into court
and purge that contempt? How did the counsel get over the fact, that his
client was in contempt? He must first submit himself to the court by
asking to be permitted to purge himself of contempt.

Mr. Meredith closed the argument, and the proceeding was closed by an
entry on the part of Judge Kane of the following order on the record.

_The United States_ v. _Williamson_. And now, October the 29th, 1855, the
court having heard argument upon the motion for leave to read and file
among the records, in this case, a certain paper writing purporting to be
the petition of Passmore Williamson, and having considered thereof, do
refuse the leave moved for, inasmuch as it appears that the said Passmore
Williamson is now remaining in contempt of this court, and that by the
said paper writing he doth in no wise make purgation of his said contempt,
nor doth he thereby pray that he may be permitted to make such purgation;
wherefore the said Passmore Williamson hath not at this time a standing in
this court.

To the end, however, that the said Passmore Williamson may, when thereunto
minded, the more readily relieve himself of his said contempt, it is
ordered that whenever by petition, in writing, to be filed with the clerk,
Passmore Williamson shall set forth, under his oath or solemn affirmation
that 'he desires to purge himself of the contempt because of which he is
now attached, and to that end is willing to make true answers to such
interrogations as may be addressed to him by the court, touching the
matters heretofore _legally_ enquired of by the writ of _habeas corpus_ to
him directed, at the relation of John H. Wheeler,' then the marshal do
bring the said Passmore Williamson before the court, if in session, or if
the court be not in session, then before the judge at his chambers, to
abide the further order of the court in his behalf. And it is further
ordered that the clerk do furnish copies of this order to the said
Passmore Williamson, and to the attorney of the United States, and to the
marshal.

Under this order Williamson presented the following petition:

    _United States of America_ v. _Williamson, District Court of the
    United States, Eastern district of Pennsylvania_.

    _To the Honorable the Judge of the District Court of the United States
    for the Eastern district of Pennsylvania:_

    The petition of Passmore Williamson respectfully showeth: That he
    desires to purge himself of the contempt because of which he is now
    attached, and to that end is willing to make true answers to such
    interrogatories as may be addressed to him by the court, touching the
    matter heretofore inquired of him by the writ of _habeas corpus_ to
    him directed at the relation of John H. Wheeler. Wherefore he prays
    that he may be permitted to purge himself of said contempt by making
    true answers to such interrogatories as may be addressed to him by the
    honorable court touching the premises.

    P. WILLIAMSON.

    Affirmed and subscribed before me, Nov. 2, 1855.

    CHARLES F. HEAZLITT, U. S. Com.

Judge Kane hesitated to receive this petition because it did not conform
to his order by containing the word _legally_, before the phrase "inquired
of," (thus confirming the legality of the proceedings under the original
writ of _habeas corpus_ directed to Williamson.) But finding that
Williamson was resolved to make no such concession, Judge Kane finally
concluded to receive the petition, and made the following reply to it:

'PASSMORE WILLIAMSON: The court has received your petition, and, upon
consideration thereof, have thought right to grant the prayer thereof. You
will therefore make here in open court your solemn affirmation, that in
the return heretofore made by you to the writ of _habeas corpus_, which
issued from this court at the relation of John H. Wheeler, and in the
proceedings consequent thereupon, you have not intended a contempt of this
court or of its process. Moreover, that you are now willing to make true
answers to such interrogatories as may be addressed to you by the court,
touching the premises inquired of in the said writ of _habeas corpus_.'

The required affirmation was then made in the form dictated by the judge.

Mr. Van Dyke, the district attorney, then submitted an interrogatory in
writing, which was not read aloud at that time.

Mr. Gilpin said Mr. Williamson was perfectly willing to answer the
interrogatory submitted by the district attorney, but as he did not know
what other interrogatories might follow this, he thought it best that it
and its answer should be filed.

Mr. Van Dyke said he was willing either to file the interrogatory or to
submit it for an immediate reply.

Mr. Gilpin and Judge Kane both remarked that they had understood the
district attorney to intimate, that if the question propounded was
answered in the affirmative, he would be satisfied. The court further
said, that it was for the petitioner to make his election whether or not
the interrogatories and the replies should be filed.

After consultation with his counsel, the petitioner preferred that the
questions and answers should be filed.

The court directed that the interrogatories should be filed.

Mr. Gilpin then read the interrogatory that had been propounded, and the
reply of Mr. Williamson.

The interrogatory was as follows:

'Did you at the time of the service of the writ of _habeas corpus_, at the
relation of John H. Wheeler, or at any time during the period intervening
between the service of said writ and the making of your return thereto,
seek to obey the mandate of said writ, by bringing before this honorable
court the persons of the slaves therein mentioned? If to this
interrogatory you answer in the affirmative, state fully and particularly
the mode in which you sought so to obey said writ, and all that you did
tending to that end.'

The reply made was as follows:

'I did not seek to obey the writ by producing the persons therein
mentioned before the court, because I had not, at the time of the service
of the writ, the power over, the custody or control of them, and,
therefore, it was impossible for me to do so. I first heard of the writ of
_habeas corpus_ on Friday, July 20, between one and two o'clock A. M., on
my return from Harrisburg. After breakfast, about nine o'clock, I went
from my house to Mr. Hopper's office, when and where the return was
prepared. At ten o'clock I came into court, as commanded by the writ. I
sought to obey the writ by answering it truly; the parties not being in my
possession or control, it was impossible for me to obey the writ by
producing them. Since the service of the writ I have not had the custody,
possession or power over them; nor have I known where they were, except
from common rumor, or the newspaper reports in regard to their public
appearance in the city or elsewhere.'

Some discussion arose between the district attorney and the counsel of Mr.
Williamson. Mr. Van Dyke contended that the reply of the defendant was
evasive and contradictory. The judge said the difficulty, he thought,
could be easily overcome by amending the answer, and at the suggestion of
the court it was amended in the following manner:

'I did not seek to obey the writ by producing the persons in the writ
mentioned before this court. I did not seek, because I verily believed
that it was entirely impossible for me to produce the said persons,
agreeably to the command of the court.'

This answer was then accepted by the court and ordered filed.

Mr. Van Dyke then submitted another interrogatory, the substance of which
was, whether or not Mr. Williamson had been guilty of mental reservations
in his reply to the first interrogatory?

The court overruled this interrogatory as superfluous and improper.

Mr. Van Dyke withdrew this interrogatory and offered another, which was
also overruled by the court, on the ground that it led to such replies as
had already been objected to by the district attorney.

Mr. Van Dyke also withdrew this question.

Judge Kane then remarked that the district attorney had been invited to
aid the court in this case, but that he would bear in mind that his
relation to Mr. Wheeler was now suspended. This was only an inquiry as to
what injury had been done the process of the court.

Mr. Van Dyke said he was aware of the position he occupied.

Judge Kane then said: 'The contempt is now regarded as purged and the
party is released from custody. He is now reinstated in the position he
occupied before the contempt was committed. Mr. Williamson is now before
me on the return to the writ.'

Mr. Van Dyke then arose and addressed the court.

After Mr. Van Dyke had concluded, Mr. Meredith inquired: 'Is Mr.
Williamson discharged?'

Judge Kane replied, 'He is. I understand from the remarks of the district
attorney, that a _nolle prosequi_ has been entered in the case in this
court.'

The court then adjourned. Mr. Williamson was congratulated by his friends
on his restoration to liberty.[159]




FOOTNOTES:

[1] The German _graf_, for which the Latin _comes_ (in English, _count_ or
_earl_) was employed as an equivalent, is a form of the same word. The law
Latin for sheriff is _vice-comes_, a name given, it would appear, after
the title of earl or count had become hereditary, to the officer who still
continued to be elected by the people for the official functions
originally discharged by the earl.

[2] See Forsyth's _History of Trial by Jury_, ch. iv. sec. 4.

[3] History of England, Appendix, I.

[4] The decision of this majority would seem to have been principally
determined, if the party complained against denied the charge, by the
method of compurgation, in which the oath of the defendant was sustained
by that of a certain number of his neighbors, who thereby certified their
confidence in him; or, if he could not produce compurgators, and dared to
venture upon it, by a superstitious appeal to the ordeal.

[5] History of England, Appendix, II.

[6] We may observe that even at present, whether in England or America,
though the depositaries of the legislative and executive authority (which
in those times the king was) sit no longer openly and personally on the
bench, it still remains no easy matter, in cases in which they take an
interest, to obtain in either country a judicial decision contrary to the
inclination of these two authorities.

[7] In the king's absence--and the Anglo-Norman kings were often absent on
visits to their continental dominions--this chief justiciary acted in all
respects as the king's substitute, no less in military than in civil
affairs, those who held it being selected quite as much for warlike
prowess as for judicial skill. Such was the case with Ranulphus de
Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise
in Latin, _On the Laws and Customs of the Kingdom of England_, is the
oldest book of the common law. He went with Richard I. on the third
crusade, and was killed at the siege of Acre.

[8] It might rather be said, a scholastic art, in which forms and words
became matters of much greater consideration than substantial justice, and
in which technical rules were substituted for the exercise of the
reasoning faculties.

[9] Not merely were these appeals introduced, but process was invented by
which suits commenced in these local courts might, before they were
finished, be removed into the king's courts, by the writ of _pone_ and
others.

[10] Originally, and down to a comparatively recent period, the Inns of
Court were real schools, "readers" or lecturers being appointed for the
instruction of the students, who were only admitted to practice after a
sharp examination. Now, the examination is a mere form, and the student
seeks instruction where he pleases. Even the nominal term of study has
been reduced to five, and in some cases to three years.

[11] This distinction between attorneys and barristers, though still in
full vogue in England and in several of the British colonies, is not
recognized in the United States, where, indeed, it never had but a feeble
and transient existence.

[12] Down to the period of the reformation the abbots of the greater
monasteries sat also in this house.

[13] If the Lords, says Campbell, were still liable to be so interrogated,
they would not unfrequently be puzzled; and the revival of the practice
might be a check on hasty legislation. It certainly would be a check upon
the practice of courts, now so frequent, of putting an interpretation on
statutes totally different from the intentions of those who frame them.

[14] Hence the necessity of venue, that is, the allegation in all
declarations and indictments of some place in some county where the matter
complained of happened, in order to a trial by a jury of the vicinage. In
personal actions this necessity of trying a case in the county where the
transaction occurred was got rid of by first setting out the true place of
the transaction, and then alleging under a _videlicet_ a venue in the
county where the action was brought, which latter allegation the courts
would not allow to be disputed. But in criminal proceedings and real
actions the necessity of a trial in the county where the offence was
committed or the land lies still continues.

The origin of the jury in a body of neighbors who decided from their own
knowledge will seem less remarkable when we recollect that by the customs
of the Anglo-Saxons all sales of land, contracts, &c., between individuals
took place in public at the hundred and county courts, the memory of the
freeholders present thus serving in place of written records. See
Palgrave's _English Commonwealth_, vol. i. p. 213.

[15] See Forsyth's _Trial by Jury_, ch. x. sec. 1.

[16] Down to the time of Elizabeth _all_ cases occurring in Middlesex
county, in which Westminster lies, were thus tried in bank.

[17] In London and Middlesex four sessions were held a year; in the four
northern counties only one.

[18] This history holds out to our state tribunals significant warnings as
to the danger to which they are exposed on the part of the federal judges,
especially those of the District Courts, who sitting singly on the bench,
and with powers enormously and most dangerously extended by recent
legislation, have from the unity and concentration of the one-man power, a
great advantage over courts liable to be retarded in their action, if not
reduced to imbecility by divisions among their members.

[19] The appeal from the English colonial courts to the king in
council--the appeal cases being heard and decided by a committee of the
privy councillors learned in the law--is another remnant of the old
system, in which the constitution of the ancient Aula Regis has been very
accurately preserved.

[20] Both these courts proceeded according to the forms of the civil law,
and without a jury. But occasionally the court of equity directed
questions of fact arising before it to be settled by jury trial, and by a
statute of Henry VIII. the trial of all maritime felonies before the
Admiralty Court was directed to be by jury.

[21] Hyde, (afterwards Lord Clarendon,) himself a lawyer, by whom the
usurpations of this court were brought to the notice of Parliament, stated
that more damages had been given by the earl marshal in his days, for
words of supposed defamation, of which the law took no notice, than by all
the courts of Westminster Hall during a whole term.

[22] The name is sometimes spelt Brabaçon, Brabançon, Brabason, and
Brabanson.

[23] Hume, who designates them "desperate ruffians," says "troops of them
were sometimes enlisted in the service of one prince or baron, sometimes
in that of another; they often acted in an independent manner, and under
leaders of their own. The greatest monarchs were not ashamed, on occasion,
to have recourse to their assistance; and as their habits of war and
depredation had given them experience, hardiness, and courage, they
generally composed the most formidable part of those armies which decided
the political quarrels of princes."--Vol. i. 438. In America we have no
mercenary soldiers, but plenty of mercenary politicians, almost as much to
be dreaded.--_Ed._

[24] They were removed because, during the king's absence on the
continent, they had been guilty of taking bribes, and other misdemeanors.
Of De Wayland, one of their number, and the first chief justice of the
Common Pleas, Lord Campbell gives the following account: When arrested, on
the king's return from Aquitaine, conscious of his guilt, he contrived to
escape from custody, and, disguising himself in the habit of a monk, he
was admitted among friars-minors in a convent at Bury St. Edmund's.
However, being considered a heinous offender, sharp pursuit was made after
him, and he was discovered wearing a cowl and a serge jerkin. According to
the law of sanctuary, then prevailing, he was allowed to remain forty days
unmolested. At the end of that time the convent was surrounded by a
military force, and the entry of provisions into it was prohibited. Still
it would have been deemed sacrilegious to take him from his asylum by
violence; but the lord chief justice preferred surrendering himself to
perishing from want. He was immediately conducted to the Tower of London.
Rather than stand a trial, he petitioned for leave to abjure the realm;
this favor was granted to him on condition that he should be attainted,
and forfeit all his lands and chattels to the crown. Having walked
barefoot and bareheaded, with a crucifix in his hand, to the sea side at
Dover, he was put on board a ship and departed to foreign parts. He is
said to have died in exile, and he left a name often quoted as a reproach
to the bench till he was superseded by Jeffreys and Scroggs.

[25] That is, in the ordinary discharge of his duties. His attempt to take
away the liberties of the Scotch we shall presently see.--_Ed._

[26] Just like our northern candidates for the presidency, and the
dough-face politicians who contrive to get chosen to Congress by northern
constituencies, whose rights they then barter away and betray.--_Ed._

[27] This is the very ground upon which it is attempted, now, to justify
the repeal of the Missouri prohibition of slavery, while Brabacon's
defence of English judges in Scotland is a counterpart to the
justification by our federal judges of the authority given to
slave-catching commissioners.--_Ed._

[28] May the pending attempts of the Southern States, countenanced and
supported by the federal judges, to establish a "superiority" and "direct
dominion" over the north, be met and repelled with similar spirit and
success!--_Ed._

[29] He had been murdered by a body of insurgent peasants headed by Jack
Straw, one of the leaders in Wat Tyler's insurrection.--_Ed._

[30] Some of our federal judges would no doubt like very much to see this
rule established among us.--_Ed._

[31] The persistence of Richard II. in the same arbitrary principles of
which the advocacy cost Tresilian his life, caused his deposition a few
years afterwards, as to which, Lord Campbell observes,--

"While we honor Lord Somers and the patriots who took the most active part
in the revolution of 1688, by which a king was cashiered, hereditary right
was disregarded, and a new dynasty was placed on the throne, we are apt to
consider the kings of the house of Lancaster as usurpers, and those who
sided with them as rebels. Yet there is great difficulty in justifying the
deposition of James II., and condemning the deposition of Richard II. The
latter sovereign, during a reign of above twenty years, had proved himself
utterly unfit to govern the nation, and, after repeated attempts to
control him, and promises on his part to submit to constitutional advice,
he was still under the influence of worthless favorites, and was guilty of
continued acts of tyranny and oppression; so that the nation, which, with
singular patience, had often forgiven his misconduct from respect to the
memory of his father and his grandfather, was now almost unanimously
resolved to submit no longer to his rule."

[32] Fuller, in praising Fortescue and Markham, says, "These I may call
two chief justices of the chief justices, for their signal integrity; for
though the one of them favored the house of Lancaster, and the other of
York, in the titles to the crown, both of them favored the house of
Justice in matters betwixt party and party."

[33] A list by no means limited to England, but very much lengthened out
in America.--_Ed._

[34] Some of our American advocates of constructive treasons have laid
down the law much in the same spirit.--_Ed._

[35] It was, we may suppose, from this charge that Mr. Justice Curtis, of
the Supreme Court of the United States, got the law retailed in his charge
to the grand jury of the Massachusetts District, in consequence of which
indictments were found against Wendell Phillips and Theodore Parker for
obstructing the execution of the fugitive slave act--on the ground that
certain speeches of theirs in Faneuil Hall against that statute "referred
to a purpose" and "incited to an act" of resistance to it, thereby making
their expression of opinion criminal.--_Ed._

[36] The recent claim set up in America for legislative supremacy over
conscience--a claim contended for by so many of our leading lawyers and
divines--is not less blasphemous and outrageous than this claim of Henry
VIII., and belongs to the same category.--_Ed._

[37] This would hardly be allowed by some of our American juridical
deniers and deriders of the "higher law." It is hard to distinguish a law
(such as the fugitive slave act) which sets the moral sentiment at
defiance, from a law that God shall not be God.--_Ed._

[38] One striking instance, among a thousand, both old and new, how little
the so much vaunted decisions of courts virtually amount to. Decisions
that are to stand, can only stand upon their own inherent rectitude and
reasonableness, and not upon the authority of those who make them.--_Ed._

[39] Some of our American judges who have of late attained a very
unenviable public character have also the reputation of being virtuous and
amiable in private life.--_Ed._

[40] Noy at this time was of the popular party. He afterwards went over to
the court, and was made attorney general.--_Ed._

[41] Similar pretences of respect for law and popular rights often serve
as preface here in America to judgments as atrocious as that of Chief
Justice Hyde.--_Ed._

[42] This is the universal excuse for all sins, whether of omission or
commission, on the part of courts who pay but little regard to Bishop
Burnet's sensible observation that a precedent against reason "signifies
no more but that the like injustice has been done before."--_Ed._

[43] Though the lawyers, both in England and America, have long since
abandoned the pretence, so impudently maintained by Hyde, of a right in
the executive authorities to imprison for contempt, into the ground and
nature of which the courts had no right to inquire, they still claim for
themselves and for one another--at least in Pennsylvania--a like right,
and insist with the same unction upon the absolute necessity of trusting
"the courts" in these matters, and of relying upon their "mercy." See, in
the Appendix, No. 3, the opinion of the Supreme Court of Pennsylvania, as
delivered by Judge Black, of which the insolent conclusion was evidently
borrowed from the above opinion of Chief Justice Hyde.--_Ed._

[44] This celebrated lawyer, who had succeeded Fleming as chief justice of
the King's Bench, had been, as well as Crewe, turned out of office after
holding the place for three years, because he would not allow the
government to interfere with his administration of justice. He was now the
leader of the popular party in the House of Commons.--_Ed._

[45] We have had recent striking instances in America of the same thing in
some of the "misconstructions" placed by judges on the laws in restraint
of drunkenness and liquor selling.--_Ed._

[46] Like those given by several federal judges in support of the fugitive
slave act.--_Ed._

[47] Noy had begun, like Brampston, a flaming patriot, but, like him and
so many other lawyers, had been bought over to the side of power by the
hope of promotion, and being made attorney general, had advised the issue
of the writs for ship money.--_Ed._

[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 class 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 petition;"--the
ancient form of passing 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 Massachusetts, 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 shore 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 God, 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 passage 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 pass 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 bloody idea was first
started by George T. Curtis, a slave-catching commissioner of
Massachusetts, 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
assistance, 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 participate
in slave hunts.

"If," said the judge; "the circumstances 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 Constitution 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 constitutional 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 principals, 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 assist 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 assisted 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 _Mass. 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 assassinate 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 bloody 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."--_Athenæ_, 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 asseveration a suspicion arises of pecuniary corruption;
but I believe that Scroggs was swayed in this instance by a disinterested
love of rascality.

[83] Roger North, whose curious life of his brother is largely quoted in
this memoir.--_Ed._

[84] At that time not more than fifty volumes were required. Now,
unfortunately, a law library is "_multorum camelorum onus_," (a load for
many camels.)

[85] This sort of practice on the weakness of judges, keeping them in good
humor by flattery and complaisance, may possibly, as the text implies, be
abandoned in England, but in America it is still sufficiently
common.--_Ed._

[86] The distinguishing badge worn by the king's counsel. The barristers
wear stuff gowns. The serjeants, (the highest rank of practitioners,)
enjoying a monopoly of the practice of the Court of Common Pleas, which
originally had exclusive cognizance of all civil actions, have or had, as
their badges, a coif, or black velvet cap, (for which a wig was about this
time substituted,) and parti-colored robes.--_Ed._

[87] The hours then kept must have been very inconvenient for lawyers in
Parliament, as all the courts and both houses met at eight in the morning
and sat till noon.

[88] This early rising rendered it necessary for him to take "a short turn
in the other world after dinner."

[89] Roger assures us he did not purloin any part of the treasure, for
which he takes infinite credit to himself.

[90] This was the title taken by Finch on promotion to the great seal.
Nottingham is greatly lauded by Blackstone and other writers on
jurisprudence as a "consummate lawyer," and as the father of the modern
English equity system. His abilities were unquestionable, but his
political career, like that of so many other "consummate lawyers," has
some very black spots.--_Ed._

[91] Here we have one of many English precedents of assault upon the right
of petition--a thing by no means unknown in our American politics.--_Ed._

[92] The same Parliament had already impeached Scroggs. See ante, p. 180.

[93] Here again is the old pretence of "levying war," under which it has
been attempted with us to convert hostility to the fugitive slave act into
treason. See ante, p. 158.--_Ed._

[94] Pemberton, though well aware that, to justify the grand jury in
finding an indictment, a _prima facie_ case of guilt must be made out,
instructed them that "a probable ground of accusation" was
sufficient.--_Ed._

[95] By this word "pension," I conceive we are to understand _salary_
while the lord keeper was in office, and not, as might be supposed, an
allowance on his retirement.

[96] Pemberton had been appointed to succeed Scroggs as chief justice of
the King's Bench, but not being found quite serviceable enough, was now
removed into another court.--_Ed._

[97] "Sir F. North being made lord keeper on the death of the Earl of
Nottingham, the lord chancellor, I went to congratulate him. He is a most
knowing, learned, and ingenious person; and, besides having an excellent
person, of an ingenuous and sweet disposition, very skilful in music,
painting, the new philosophy, and political studies."--_Mem._ i. 513.
Judge Kane is said to be quite an accomplished person.--_Ed._

[98] The principal obstacle to law reform in America is the pecuniary
interest which the lawyers think they have in keeping up old
abuses.--_Ed._

[99] Bishop Burnet, the historian.

[100] See beyond, life of Jeffreys, p. 302.

[101] An account of Guilford's unavailing attempt to prevent this
appointment will be found in the life of Wright, chap. xix.--_Ed._

[102] It is curious that Roger gravely states that "he was dropped from
the tory list and turned trimmer."--_Life_, i. 404.

[103] Life, ii. 179. It should be recollected that, at this time, the
council met in the afternoon, between two and three--dinner having taken
place soon after twelve, and a little elevation from wine was not more
discreditable at that hour than in our time between eleven and twelve
o'clock at night.

[104] James and Jeffreys setting themselves up as the special advocates of
toleration, (with a view to the introduction of Popery,) is like our
American slaveholders putting themselves forward as advocates of the
rights of property and as special democrats, for the purpose of upholding
slavery, based as slavery is on principles at war with the fundamental
idea of property and democracy.--_Ed._

[105] Life, ii. 150, 153, 334.

[106] Lord Coke lays down, that upon such an occasion there ought to be a
warrant by advice of the Privy Council, as in 32 H. 8, to certain
physicians and surgeons named, authorizing them to administer to the royal
patient "potiones, syrupos, confectiones, laxitivas medicinas, clysteria,
suppositoria, capitis purgea, capitis rasuram, fomentationes,
embrocationes, emplastra," &c.; still, that no medicine should be given to
the king but by the advice of his council; that no physic should be
administered except that which is set down in writing, and that it is not
to be prepared by any apothecary, but by the surgeons named in the
warrant.--4 _Inst._ 251. These were the precautions of times when no
eminent person died suddenly without suspicion of poison. Even Charles II.
was at first said to have been cut off to make way for a Popish successor,
although, when the truth came out, it appeared that he had himself been
reconciled to the Roman Catholic church.

[107] See the speech at full length. Life, ii. 192. There is nothing in it
very good or very bad.

[108] Evelyn tells us that this was the first rhinoceros ever introduced
into England, and that it sold for two thousand pounds.

[109] We may add--for his tory principles, and for the loss of America to
the British crown.--_Ed._

[110] Saunders was very ingenious; but in the invention of charges to
serve the turn of tyranny he has his match in some of our American
lawyers.--_Ed._

[111] This is not the William Jones mentioned in the life of Lord North,
but a person of a different character, one Edward Jones.--_Ed._

[112] So we have lately seen five inhabitants of Philadelphia prosecuted
for a riot, for aiding to give effect to a statute of that state
abolishing negro slavery.--_Ed._

[113] The editions of these Reports by the late Serjeant Williams, and by
the present most learned judges, Mr. Justice Patteson and Mr. Justice
Vaughan Williams, illustrated by admirable notes, may be said to embody
the whole common law of England, scattered about, I must confess, rather
immethodically.

[114] The name is spelt no fewer than eight different ways--"Jeffries,"
"Jefferies," "Jefferys," "Jeffereys," "Jefferyes," "Jeffrys," "Jeffryes,"
and "Jeffreys," and he himself spelt it differently at different times of
his life; but the last spelling is that which is found in his patent of
peerage, and which he always used afterwards.

[115] "_Le roy s'avisera_," the royal veto to a bill passed by the two
houses.

[116] Roger L'Estrange was a noted pamphleteer, one of the oracles of the
high church and Tory party, and the founder of the first English
newspaper.--_Ed._

[117] See the account of this trial in the life of North, Lord Guilford,
ante, p. 210.

[118] See ante, p. 220.

[119] See life of Saunders, ante, p. 261.

[120] Evelyn, Oct. 4, 1683. "Sir Geo. Jeffreys was advanced, reputed to be
most ignorant, but most daring."

[121] Stat. 6 Ed. 6 enacted that if any outlaw yielded himself to the
chief justice, &c., within a year, he should be discharged of the
outlawry, and entitled to a jury.

[122] Burn. Own Times, i. 580. "The king accompanied the gift with a piece
of advice somewhat extraordinary from a king to a judge:--'My lord, as it
is a hot summer, and you are going the circuit, I desire you will not
drink too much.'"

[123] Dangerfield had been a confederate of Oates as one of the false
witnesses to the pretended Popish plot.--_Ed._

[124] For the disputes between them, see ante, p. 228-240.

[125] Ante, p. 230.

[126] This rigorous sentence was rigorously executed. On the day on which
Oates was pilloried in Palace Yard, he was mercilessly pelted, and ran
some risk of being pulled in pieces; but in the city his partisans
mustered in great force, raised a riot, and upset the pillory. They were,
however, unable to rescue their favorite. It was supposed that he would
try to escape the horrible doom which awaited him by swallowing poison.
All that he ate and drank was therefore carefully inspected. On the
following morning he was brought forth to undergo his first flogging. At
an early hour an innumerable multitude filled all the streets from Aldgate
to the Old Bailey. The hangman laid on the lash with such unusual severity
as showed that he had received special instructions. The blood ran down in
rivulets. For a time the criminal showed a strange constancy; but at last
his stubborn fortitude gave way. His bellowings were frightful to hear. He
swooned several times; but the scourge still continued to descend. When he
was unbound, it seemed that he had borne as much as the human frame can
bear without dissolution. James was entreated to remit the second
flogging. His answer was short and clear. "He shall go through with it, if
he has breath in his body." An attempt was made to obtain the queen's
intercession, but she indignantly refused to say a word in favor of such a
wretch. After an interval of only forty-eight hours, Oates was again
brought out of his dungeon. He was unable to stand, and it was necessary
to drag him to Tyburn on a sledge. He seemed quite insensible, and the
tories reported that he had stupefied himself with strong drink. A person
who counted the stripes on the second day said that they were seventeen
hundred. The bad man escaped with life, but so narrowly that his ignorant
and bigoted admirers thought his recovery miraculous, and appealed to it
as a proof of his innocence. The doors of the prison closed upon him.
During many months he remained ironed in the darkest hole of Newgate. It
was said that in his cell he gave himself up to melancholy, and sat whole
days uttering deep groans, his arms folded, and his hat pulled over his
eyes. It was not in England alone that these events excited strong
interest. Millions of Roman Catholics, who knew nothing of our
institutions or of our factions, had heard that a persecution of singular
barbarity had raged in our island against the professors of the true
faith, that many pious men had suffered martyrdom, and that Titus Oates
had been the chief murderer. There was, therefore, great joy in distant
countries when it was known that the divine justice had overtaken him.
Engravings of him, looking out from the pillory, and writhing at the
cart's tail, were circulated all over Europe; and epigrammatists, in many
languages, made merry with the doctoral title which he pretended to have
received from the university of Salamanca, and remarked that since his
forehead could not be made to blush, it was but reasonable that his back
should do so.

Horrible as were the sufferings of Oates, they did not equal his crimes.
Nevertheless, the punishment which was inflicted upon him cannot be
justified. In sentencing him to be stripped of his ecclesiastical habit
and imprisoned for life, the judges seem to have exceeded their legal
power. They were undoubtedly competent to inflict whipping, nor had the
law assigned a limit to the number of stripes; but the spirit of the law
clearly was that no misdemeanor should be punished more severely than the
most atrocious felonies. The worst felon could only be hanged. The judges,
as they believed, sentenced Oates to be scourged to death. That the law
was defective, is not a sufficient excuse; for defective laws should be
altered by the legislature, and not strained by the tribunals; and least
of all should the law be strained for the purpose of inflicting torture
and destroying life. That Oates was a bad man is not a sufficient excuse;
for the guilty are almost always the first to suffer those hardships which
are afterward used as precedents for oppressing the innocent. Thus it was
in the present case. Merciless flogging soon became an ordinary punishment
for political misdemeanors of no very aggravated kind. Men were sentenced
for hasty words spoken against the government to pain so excruciating that
they, with unfeigned earnestness, begged to be brought to trial on capital
charges, and sent to the gallows. Happily, the progress of this great evil
was speedily stopped by the revolution, and by that article of the Bill of
Rights which condemns all cruel and unusual punishments.--_Macaulay's
History of England._

[127] Fox's Hist. James, ii. 96.

[128] Macaulay gives the following account of this trial:

"When the trial came on at Guildhall, a crowd of those who loved and
honored Baxter filled the court. At his side stood Doctor William Bates,
one of the most eminent Nonconformist divines. Two Whig barristers of
great note, Pollexfen and Wallop, appeared for the defendant. Pollexfen
had scarce begun his address to the jury, when the chief justice broke
forth--'Pollexfen, I know you well. I will set a mark on you. You are the
patron of the faction. This is an old rogue, a schismatical knave, a
hypocritical villain. He hates the liturgy. He would have nothing but
long-winded cant without book;' and then his lordship turned up his eyes,
clasped his hands, and began to sing through his nose, in imitation of
what he supposed to be Baxter's style of praying, 'Lord, we are thy
people, thy peculiar people, thy dear people.' Pollexfen gently reminded
the court that his late majesty had thought Baxter deserving of a
bishopric. 'And what ailed the old blockhead then,' cried Jeffreys, 'that
he did not take it?' His fury now rose almost to madness. He called Baxter
a dog, and swore that it would be no more than justice to whip such a
villain through the whole city.

"Wallop interposed, but fared no better than his leader. 'You are in all
these dirty causes, Mr. Wallop,' said the judge. 'Gentlemen of the long
robe ought to be ashamed to assist such factious knaves.' The advocate
made another attempt to obtain a hearing, but to no purpose. 'If you do
not know your duty,' said Jeffreys, 'I will teach it you.'

"Wallop sat down, and Baxter himself attempted to put in a word; but the
chief justice drowned all expostulation in a torrent of ribaldry and
invective, mingled with scraps of Hudibras. 'My lord,' said the old man,
'I have been much blamed by dissenters for speaking respectfully of
bishops.' 'Baxter for bishops!' cried the judge; 'that's a merry conceit
indeed. I know what you mean by bishops--rascals like yourself,
Kidderminster bishops, factious, snivelling Presbyterians!' Again Baxter
essayed to speak, and again Jeffreys bellowed, 'Richard, Richard, dost
thou think we will let thee poison the court? Richard, thou art an old
knave. Thou hast written books enough to load a cart, and every book as
full of sedition as an egg is full of meat. By the grace of God, I'll look
after thee. I see a great many of your brotherhood waiting to know what
will befall their mighty Don. And there,' he continued, fixing his savage
eye on Bates, 'there is a doctor of the party at your elbow. But, by the
grace of God Almighty, I will crush you all!'

"Baxter held his peace. But one of the junior counsel for the defence made
a last effort, and undertook to show that the words of which complaint was
made would not bear the construction put on them by the information. With
this view he began to read the context. In a moment he was roared down.
'You sha'n't turn the court into a conventicle!' The noise of weeping was
heard from some of those who surrounded Baxter. 'Snivelling calves!' said
the judge.

"Witnesses to character were in attendance, and among them were several
clergymen of the established church. But the chief justice would hear
nothing. 'Does your lordship think,' said Baxter, 'that any jury will
convict a man on such a trial as this?' 'I warrant you, Mr. Baxter,' said
Jeffreys. 'Don't trouble yourself about that.' Jeffreys was right. The
sheriffs were the tools of the government. The jury, selected by the
sheriffs from among the fiercest zealots of the Tory party, conferred for
a moment, and returned a verdict of guilty. 'My lord,' said Baxter, as he
left the court, 'there was once a chief justice who would have treated me
very differently.' He alluded to his learned and virtuous friend, Sir
Matthew Hale. 'There is not an honest man in England,' said Jeffreys, 'but
looks on thee as a knave.'"

[129] It is remarkable that the first common law judge, ever as such
raised to the peerage, was this infamous Jeffreys. We speak of Lord Coke,
Lord Hale, and so of the other chief justices, but they were lords simply
by their surnames and by virtue of their office, and not peers.--_Ed._

[130] Ante, p. 237, _et seq._

[131] Bristol at this time was next to London in population, wealth, and
commerce.--_Ed._

[132] Macaulay states the number of the transported at eight hundred and
forty-one, and of the hanged at three hundred and twenty.--_Ed._

[133] He bought with it a large estate, the name of which the people
changed to Aceldama, as being bought with innocent blood.--_Ed._

[134] Perhaps this writer had in his eye the case of John Tutchin, a noted
political writer, satirized by Pope, a mere boy at the time of the
rebellion, and of whose case Macaulay gives the following account: "A
still more frightful sentence was passed on a lad named Tutchin, who was
tried for seditious words. He was, as usual, interrupted in his defence by
ribaldry and scurrility from the judgment seat. 'You are a rebel; and all
your family have been rebels since Adam. They tell me that you are a poet.
I'll cap verses with you.' The sentence was, that the boy should be
imprisoned seven years, and should, during that period, be flogged through
every market town in Dorsetshire every year. The women in the galleries
burst into tears. The clerk of the arraigns stood up in great disorder.
'My lord,' said he, 'the prisoner is very young. There are many market
towns in our county. The sentence amounts to whipping once a fortnight for
seven years.' 'If he is a young man,' said Jeffreys, 'he is an old rogue.
Ladies, you do not know the villain as well as I do. The punishment is not
half bad enough for him. All the interest in England shall not alter it.'
Tutchin, in his despair, petitioned, and probably with sincerity, that he
might be hanged. Fortunately for him, he was, just at this conjuncture,
taken ill of the small pox, and given over. As it seemed highly improbable
that the sentence would ever be executed, the chief justice consented to
remit it in return for a bribe which reduced the prisoner to poverty. The
temper of Tutchin, not originally very mild, was exasperated to madness by
what he had undergone. He lived to be known as one of the most acrimonious
and pertinacious enemies of the house of Stuart and of the Tory
party."--_Ed._

[135] Ante, p. 000.

[136] One of the strongest testimonies against James is his own letter to
the Prince of Orange, dated Sept. 24, 1685, in which, after giving him
a long account of his fox-hunting, he says, "As for news, there is
little stirring, but that the lord chief justice has almost done his
campaign. He has already condemned several hundreds, some of which
are already executed, some are to be, and the others sent to the
plantations."--_Dalrymple's App._ part ii. 165. The only public man who
showed any bowels of compassion amidst these horrors was Lord Sunderland.
Whig party writers are at great pains to exculpate Pollexfen, the great
Whig lawyer, who conducted all these prosecutions as counsel for the
crown; but I think he comes in for no small share of the infamy then
incurred, and he must be considered as principal _aide de camp_ to
Jeffreys in the _western campaign_. He ought to have told the jury that
there was no case against the Lady Lisle, and when a few examples had been
made, he ought to have stopped the prosecutions, or have thrown up his
briefs.

[137] I hope I have not been prejudiced in my estimate of James's
character by the consideration that when acting as regent in Scotland he
issued an order (afterwards recalled) for the utter suppression of the
name of CAMPBELL, "which," says Mackintosh, "would have amounted to a
proscription of several noblemen, a considerable body of gentry, and the
most numerous and powerful tribe in the kingdom."

[138] This "dispensing power" claimed by Jeffreys and the English judges
for James II. was but a trifle compared to the "dispensing power" recently
claimed by some of our American lawyers and judges for acts of Congress.
All that was claimed for James was, power to dispense with acts of
Parliament, while our American improvers upon this doctrine go so far as
to claim for Congress a power to dispense with and supersede the laws of
God.--_Ed._

[139] Whether diplomatic intercourse with the pope is now forbidden,
depends upon the construction to be put upon the words, "shall hold
_communion_ with the see or church of Rome" in the Bill of Rights. This
seems to refer to _spiritual_ communion only, or the queen would hold
communion with the successor of Mahomet by appointing an ambassador to the
sublime porte.

[140] The strong analogy between these ecclesiastical commissioners and
our recent American slave catching commissioners, both in powers, method
of procedure, and object arrived at, has been already referred to, and can
hardly fail to strike the reader.--_Ed._

[141] Judge Kane, in Passmore Williamson's case, went further than that.
Because he refused to obey the mandate of Judge Kane to produce in his
court certain persons over whom he had no control, with a view to their
surrender to slavery, Judge Kane, under the name of a contempt, sentenced
him to an indefinite imprisonment.--_Ed._

[142] When a peer is tried in Parliament before the House of Lords, the
lord high steward votes like the rest of the peers, who have all a right
to be present; but if the trial be out of Parliament, the lord high
steward is only the judge to give direction in point of law, and the
verdict is by the lords triers specially summoned.

[143] In James's memoirs, all the blame of this prosecution is thrown upon
Jeffreys; but it is more probable that he only recklessly supported his
master.

[144] The arrangement of counsel in this celebrated case was very
whimsical. The bishops were defended by Pemberton, the ex-chief justice,
who had presided at several of the late state trials, by Levinz, Sawyer,
and Finch, who had conducted them very oppressively for the crown, and by
Pollexfen, Treby, and Somers, considered steady Whigs.

[145] It was pretended by the anti-Jacobites, that is, the enemies of
James and the exiled Stuarts, that the infant had been smuggled into the
queen's bed in a warming-pan.--_Ed._

[146] 24th November, 1688. 2 Vernon, 88, _Searle_ v. _Lane_. By a
reference to the minute books in the registrar's office, it appears that
Jeffreys sat again on Monday, Nov. 26, when he decided _Duval_ v.
_Edwards_, a case on exceptions, nine in number, giving a separate
judgment on each. He did not sit on the 27th, but he did on the 28th,
which was the last day of term. So late as the 8th of December he sat and
heard several petitions. In the evening of this day the great seal was
taken from him.

[147] "Bottomry bond." This contraction shows the etymology of an elegant
English word from "bottom," which Dr. Johnson chooses to derive from the
Dutch word "bomme."

[148] _i. e._ The principal being put in hazard, the interest was not
usurious.

[149] The following is from Macaulay's elaborate portraiture of Jeffreys
on the bench: "All tenderness for the feelings of others, all
self-respect, all sense of the becoming, were obliterated from his mind.
He acquired a boundless command of the rhetoric in which the vulgar
express hatred and contempt. The profusion of maledictions and
vituperative epithets which composed his vocabulary could hardly have been
rivalled in the fish-market or the bear-garden. His countenance and his
voice must always have been unamiable; but these natural advantages--for
such he seems to have thought them--he had improved to such a degree that
there were few who, in his paroxysms of rage, could see or hear him
without emotion. Impudence and ferocity sat upon his brow. The glare of
his eyes had a fascination for the unhappy victim on whom they were fixed;
yet his brow and eye were said to be less terrible than the savage lines
of his mouth. His yell of fury, as was said by one who had often heard it,
sounded like the thunder of the judgment day."

[150] Down to this time trials at nisi prius had not assumed their present
shape. The issue being read to the jury, the evidence was given, and with
hardly any speeches from counsel, all seems to have been left to the
judge.

[151] 10 State Trials, 267.

[152] The plan was formed of ruling by a standing army. But without a
Parliament, how was this army to be kept in a proper state of discipline?
In time of war, or during a rebellion, troops in the field were subject to
martial law, and they might be punished, by sentence of a court martial,
for mutiny or desertion. But the country was now in a state of peace and
profound tranquillity; and the common law, which alone prevailed, knew no
distinction between citizen and soldier; so that, if a lifeguardsman
deserted, he could only be sued for breach of contract, and if he struck
his officer, he was only liable to an indictment or an action of battery.
While the king's military force consisted of a few regiments of household
troops, with high pay, desertion was not to be apprehended, and military
offences were sufficiently punished by dismission from the service. But
James found it impossible to govern the numerous army which he had
collected at Hounslow without the assistance of martial law; and he
contended that, without any act of Parliament, he was at all times
entitled, by virtue of his prerogative, to put martial law in force
against military men, although it could only be put in force against
civilians when war or rebellion was raging in the kingdom.

The question first arose at the Old Bailey, before Sir John Holt, then
recorder of London, and he decided against the crown, as might have been
expected; for, while avoiding keen partisanship in politics, he had been
always Whiggishly inclined. James thought he was quite secure by appealing
to the ultra Tory, Lord Chief Justice Herbert. To the utter amazement of
the king and the courtiers, this honorable, although shallow, magistrate
declared that, without an act of Parliament, all laws were equally
applicable to all his majesty's subjects, whether wearing red coats or
gray. Being taunted with inconsistency in respect of his judgment in favor
of the dispensing power, he took this distinction, "that a statute
altering the common law might be suspended by the king, who is really the
lawgiver, notwithstanding the form that he enacts 'with the _assent_ of
the lords spiritual and temporal, and Commons;' but that the common law
cannot be altered by the king's sole authority, and that the king can do
nothing contrary to the common law, as that must be considered coeval with
the monarchy."

James, with the infatuated obstinacy which was now driving him to
destruction, set this opinion at defiance; and, encouraged by Jeffreys,
caused a soldier to be capitally prosecuted, at the Reading assizes, for
deserting his colors. The judges who presided there resorted to some
obsolete, inapplicable act of Parliament, and were weak enough to lay down
the law in the manner suggested to them by the chancellor, so that a
conviction was obtained. To give greater solemnity and _eclat_ to the
execution, the attorney general moved the Court of King's Bench for an
order that it might take place at Plymouth, in sight of the garrison from
which the prisoner had run away. But Herbert peremptorily declared that
the court had no jurisdiction to make such an order, and prevailed on his
brother Wythens to join with him in this opinion. Mr. Attorney took
nothing by his motion, but the recreant chief justice and the recreant
puisne were both next morning dismissed from their offices, to make way
for the most sordid wretches to be picked up in Westminster Hall--Sir
Robert Wright and Sir Richard Allibone, a professed Papist.

[153] The two clergymen who were most applauded on this occasion were the
bold one, who, refusing to obey the royal mandate, took for his text "Be
it known unto thee, O king, that we will not serve thy gods, nor worship
the golden image which thou hast set up;" and the humorous one, who,
having said, "My brethren, I am obliged to read this declaration, but you
are not obliged to listen to it," waited till they were all gone, clerk
and all, before the reading of the declaration began.

[154] More than one American advocate for treating the fugitive slave act
as a law, and submitting to it as such, till repealed, has preached
precisely this doctrine.--_Ed._

[155] 12 State Trials, 183-523.

[156] It was supposed that he was jealous of Williams, the solicitor
general, who had been promised by James the highest offices of the law if
he could convict the bishops. This may account for a sarcasm he levelled
at his rival during the trial. Williams, having accounted for a particular
vote of the House of Commons in the reign of James II., when he himself
was a member and suspected of bribery, said "there was a lump of money in
the case." Wright, in referring to this, observed, "Mr. Solicitor tells
you the reason, 'there was a lump of money in the case;' but I wonder,
indeed, to hear it come from him." Williams, understanding the
insinuation, exclaimed, "My lord, I assure you I never gave my vote for
money in my life."

[157] A similar and alarming reaction towards despotism has exhibited
itself in America since the passage of the fugitive slave act of 1850, in
the combination of so many distinguished jurists and divines to denounce
the doctrine of a "higher law," and to advocate the "divine right" of
Congress to make enactments according to its own pleasure and judgment,
which enactments are to take precedence as rules of conduct of the
individual conscience, which it is attempted to silence by stigmatizing it
as a prejudice. Not only does there seem reason to dread that we may soon
be under legislators and an executive who, believing in the divine right
of those in authority, will not only applaud but act upon the principles
of arbitrary government, we lately have been and still are, so far as the
federal executive and the federal Senate are concerned, under precisely
such ministers and legislators; and having lately had some such experience
of the practical results of such principles in the administration of
justice, what more natural than to compare our sufferings with those of
our British forefathers, and to seek to learn from their experience the
natural cure for such evils?--_Ed._

[158] Jane Johnson's suggestions, on the ground that she was a stranger to
the proceeding, were allowed no weight towards the liberation of
Williamson, and were refused admittance on the files of the court. At the
same time, the suggestions of Mr. Cadwallader, another stranger, were
eagerly clutched at and put upon the record, with a view to better the
position of Judge Kane.

[159] The account of the final proceedings is from the Philadelphia
_Evening Bulletin_.




      *      *      *      *      *



Transcriber's note:

Footnote 39 appears on page 96 of the text, but there is no corresponding
marker on the page.

Mismatched quotation marks in the original were not corrected.





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