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

73

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.

74

See ante, pp. 150, 151.

75

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.

76

For an account of Chiffinch, see the Life of Jeffrey, p. 278.

77

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.

78

For this he probably received a good sum of money.

79

“By his zeal in the Protestant cause he gained for a while a universal applause throughout the whole nation.” —Athenæ, iv. 116.

80

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.

81

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.

82

Roger North, whose curious life of his brother is largely quoted in this memoir. —Ed.

83

At that time not more than fifty volumes were required. Now, unfortunately, a law library is “multorum camelorum onus,” (a load for many camels.)

84

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.

85

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.

86

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.

87

This early rising rendered it necessary for him to take “a short turn in the other world after dinner.”

88

Roger assures us he did not purloin any part of the treasure, for which he takes infinite credit to himself.

89

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.

90

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.

91

The same Parliament had already impeached Scroggs. See ante, p. 180.

92

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.

93

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.

94

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.

95

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.

96

“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.

97

The principal obstacle to law reform in America is the pecuniary interest which the lawyers think they have in keeping up old abuses. —Ed.

98

Bishop Burnet, the historian.

99

See beyond, life of Jeffreys, p. 302.

100

An account of Guilford’s unavailing attempt to prevent this appointment will be found in the life of Wright, chap. xix. —Ed.

101

It is curious that Roger gravely states that “he was dropped from the tory list and turned trimmer.” —Life, i. 404.

102

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.

103

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.

104

Life, ii. 150, 153, 334.

105

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.

106

See the speech at full length. Life, ii. 192. There is nothing in it very good or very bad.

107

Evelyn tells us that this was the first rhinoceros ever introduced into England, and that it sold for two thousand pounds.

108

We may add – for his tory principles, and for the loss of America to the British crown. —Ed.

109

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.

110

This is not the William Jones mentioned in the life of Lord North, but a person of a different character, one Edward Jones. —Ed.

111

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.

112

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.

113

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.

114

“Le roy s’avisera,” the royal veto to a bill passed by the two houses.

115

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.

116

See the account of this trial in the life of North, Lord Guilford, ante, p. 210.

117

See ante, p. 220.

118

See life of Saunders, ante, p. 261.

119

Evelyn, Oct. 4, 1683. “Sir Geo. Jeffreys was advanced, reputed to be most ignorant, but most daring.”

120

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.

121

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.’”

122

Dangerfield had been a confederate of Oates as one of the false witnesses to the pretended Popish plot. —Ed.

123

For the disputes between them, see ante, p. 228-240.

124

Ante, p. 230.

125

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.

126

Fox’s Hist. James, ii. 96.

127

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.