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

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.¹⁰⁹

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,¹¹⁰ 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.¹¹¹ 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.¹¹² Notwithstanding his carelessness about money, he left considerable property behind him.

CHAPTER XV.
GEORGE JEFFREYS.¹¹³

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.