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

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, Pemberton⁹⁵ 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.⁹⁶

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.”⁹⁷ 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,⁹⁸ 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.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.