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

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.99 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.100

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,101 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.102

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:103 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.”104 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.105 “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!106

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.”