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

Allybone, however, on whom James mainly relied, foolishly forgetting the scandal which would necessarily arise from the Protestant prelates being condemned by a Popish judge for trying to save their church from Popery, came up to the mark, and, in the sentiments he uttered, must have equalled all the expectations entertained of him by his master: —

“In the first place,” said he, “no man can take upon him to write against the actual exercise of the government, unless he have leave from the government. If he does, he makes a libel, be what he writes true or false; if we once come to impeach the government by way of argument, it is argument that makes government or no government. So I lay down, that the government ought not to be impeached by argument, nor the exercise of the government shaken by argument. Am I to be allowed to discredit the King’s ministers because I can manage a proposition, in itself doubtful, with a better pen than another man? This I say is a libel. My next position is, that no private man can take upon him to write concerning the government at all; for what has any private man to do with the government? It is the business of the government to manage matters relating to the government; it is the business of subjects to mind only their private affairs. If the government does come to shake my particular interest, the law is open for me, and I may redress myself; but when I intrude myself into matters which do not concern my particular interest, I am a libeller. And, truly, the attack is the worse if under a specious pretence; for, by that rule, every man that can put on a good vizard may be as mischievous as he will, so that whether it be in the form of a supplication, or an address, or a petition, let us call it by its true denomination, it is a libel.” He then examined the precedents which had been cited, displaying the grossest ignorance of the history as well as constitution of the country; and, after he had been sadly exposed by Mr. Justice Powell, he thus concluded: “I will not further debate the prerogatives of the crown or the privileges of the subject; but I am clearly of opinion that these venerable bishops did meddle with that which did not belong to them; they took upon themselves to contradict the actual exercise of the government, which I think no particular persons may do.”

The chief justice, without expressing any dissent, merely said, “Gentlemen of the jury, have you a mind to drink before you go?” So wine was sent for, and they had a glass apiece; after which they were marched off in custody of a bailiff; who was sworn not to let them have meat or drink, fire or candle, until they were agreed upon their verdict.

All that night they were shut up, Mr. Arnold, the king’s brewer, standing out for a conviction till six next morning, when, being dreadfully exhausted, he was thus addressed by a brother juryman: “Look at me; I am the largest and the strongest of the twelve, and, before I find such a petition as this a libel, here I will stay till I am no bigger than a tobacco-pipe.”

The court sat again at ten, when the verdict of not guilty was pronounced, and a shout of joy was raised which was soon reverberated from the remotest parts of the kingdom. One gentleman, a barrister of Gray’s Inn, was immediately taken into custody in court, by order of the lord chief justice, who, with an extraordinary command of temper and countenance, said to him in a calm voice, – “I am as glad as you can be that my lords the bishops are acquitted, but your manner of rejoicing here in court is indecent; you might rejoice in your chamber or elsewhere, and not here. Have you any thing more to say to my lords the bishops, Mr. Attorney?”

A. G.

– “No, my lord.”

Wright, C. J.

– “Then they may withdraw,” – and they walked off; surrounded by countless thousands, who eagerly knelt down to receive their blessing.

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  12 State Trials, 183-523.

Justice Holloway was forthwith cashiered, as well as Justice Powell; and there were serious intentions that Chief Justice Wright should share their fate, as the king ascribed the unhappy result of the trial to his pusillanimity – contrasting him with Jeffreys, who never had been known to miss his quarry. This esteemed functionary held the still more important office of lord high chancellor, and, compared with any other competitor, Wright, notwithstanding his occasional slight lapses into conscientiousness, appeared superior in servility to all who could be substituted for him.

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  It was supposed that he was jealous of Williams, the solicitor general, who had been promised by James the highest offices of the law if he could convict the bishops. This may account for a sarcasm he levelled at his rival during the trial. Williams, having accounted for a particular vote of the House of Commons in the reign of James II., when he himself was a member and suspected of bribery, said “there was a lump of money in the case.” Wright, in referring to this, observed, “Mr. Solicitor tells you the reason, ‘there was a lump of money in the case;’ but I wonder, indeed, to hear it come from him.” Williams, understanding the insinuation, exclaimed, “My lord, I assure you I never gave my vote for money in my life.”

 Allybone was declared to be “the man to go through thick and thin;” but, unfortunately, he had made himself quite ridiculous in all men’s eyes by the palpable blunders he had recklessly fallen into during the late trial; and he felt so keenly the disgrace he had brought on himself and his religion, that he took to his bed and died a few weeks afterwards.

Thus, when William of Orange landed at Torbay, Wright still filled the office of chief justice of the King’s Bench. He continued to sit daily in court till the flight of King James, when an interregnum ensued, during which all judicial business was suspended, although the public tranquillity was preserved, and the settlement of the nation was conducted by a provisional government. After Jeffreys had tried to make his escape, disguised as a sailor, and was nearly torn to pieces by the mob, Wright concealed himself in the house of a friend, and being less formidable and less obnoxious (for he was called the “

jackal

 to the

lion

,”) he remained some time unmolested; but upon information, probably ill-founded, that he was conspiring with Papists who wished to bring back the king, a warrant was granted against him by the Privy Council, on the vague charge of “endeavoring to subvert the government.” Under this he was apprehended, and carried to the Tower of London; but after he had been examined there by a committee of the House of Commons, it was thought that this custody was too honorable for him, and he was ordered to be transferred to Newgate. Here, from the perturbation of mind which he suffered, he was seized with a fever, and he died miserably a few days after, being deafened by the cheers which were uttered when the Prince and Princess of Orange were declared King and Queen of England.

His pecuniary embarrassments had continued even after he became a judge, and, still living extravagantly, his means were insufficient to supply him with common comforts in his last hours, or with a decent burial. His end holds out an awful lesson against early licentiousness and political profligacy. He was almost constantly fighting against privation and misery, and during the short time that he seemed in the enjoyment of splendor he was despised by all good men, and he must have been odious to himself. When he died, his body was thrown into a pit with common malefactors; his sufferings, when related, excited no compassion; and his name was execrated as long as it was recollected.

It is lucky for the memory of Wright that he had contemporaries such as Jeffreys and Scroggs, who considerably exceeded him in their atrocities. Had he run the same career in an age not more than ordinarily wicked, his name might have passed into a by-word, denoting all that is odious and detestable in a judge; whereas his misdeeds have long been little known, except to lawyers and antiquaries.

It is a painful duty for me to draw them from their dread abode; but let me hope that, by exposing them in their deformity, I may be of some service to the public. Ever since the reaction which followed the passing of the reform bill, there has been a strong tendency to mitigate the errors and to lament the fate of James II. This has shown itself most alarmingly among the rising generation; and there seems reason to dread that we may soon be under legislators and ministers who, believing in the divine right of kings, will not only applaud, but act upon, the principles of arbitrary government. Some good may arise from showing in detail the practical results of such principles in the due administration of justice – the chief object, it has been said, for which man renounces his natural rights, and submits to the restraints of magisterial rule.

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  A similar and alarming reaction towards despotism has exhibited itself in America since the passage of the fugitive slave act of 1850, in the combination of so many distinguished jurists and divines to denounce the doctrine of a “higher law,” and to advocate the “divine right” of Congress to make enactments according to its own pleasure and judgment, which enactments are to take precedence as rules of conduct of the individual conscience, which it is attempted to silence by stigmatizing it as a prejudice. Not only does there seem reason to dread that we may soon be under legislators and an executive who, believing in the divine right of those in authority, will not only applaud but act upon the principles of arbitrary government, we lately have been and still are, so far as the federal executive and the federal Senate are concerned, under precisely such ministers and legislators; and having lately had some such experience of the practical results of such principles in the administration of justice, what more natural than to compare our sufferings with those of our British forefathers, and to seek to learn from their experience the natural cure for such evils? —

Ed.

APPENDIX

No. I

The case of Passmore Williamson, as stated by himself in his petition for a habeas corpus, to the Supreme Court of Pennsylvania

To the Honorable the Judges of the Supreme Court of Pennsylvania:

The petition of Passmore Williamson respectfully sheweth: That your petitioner is a citizen of Pennsylvania, and a resident of Philadelphia; that he is a member of “The Pennsylvania Society for promoting the abolition of Slavery, and for the relief of free negroes unlawfully held in bondage, and for improving the condition of the African race,” incorporated by act of Assembly passed the 8th day of December, A. D. 1789, of which Dr. Benjamin Franklin was the first president, and that he is secretary of the acting committee of said society.

That on Wednesday, the 18th day of July last past, your petitioner was informed that certain negroes, held as slaves, were then at Bloodgood’s hotel, in the city of Philadelphia, having been brought by their master into the state of Pennsylvania, with the intention of passing through to other parts. Believing that the persons thus held as slaves were entitled to their freedom by reason of their having been so brought by their master voluntarily into the state of Pennsylvania, the petitioner, in the fulfilment of the official duty imposed upon him by the practice and regulations of the said society, went to Bloodgood’s hotel for the purpose of apprizing the alleged slaves that they were free, and finding that they with their master had left said hotel, and gone on board the steamboat of the New York line, then lying near Walnut Street wharf, your petitioner went on board the same, found the party, consisting of a woman named Jane, about thirty-five years of age, and her two sons, Daniel, aged about twelve, and Isaiah, aged about seven, and, in presence of the master, informed the said Jane that she was free by the laws of Pennsylvania; upon which she expressed her desire to have her freedom, and finally, with her children, left the boat of her own free will and accord, and without any coercion or compulsion of any kind; and having seen her in possession of her liberty, with her children, your petitioner returned to his place of business, and has never since seen the said Jane, Daniel and Isaiah, or either of them; nor does he know where they are, nor has he had any connection of any kind with the subject.

Your petitioner used no violence whatever, except simply holding back Colonel Wheeler, their former master, when he attempted by force to prevent the said Jane from leaving the boat. Some half dozen negroes, employed, as your petitioner is informed, as porters and otherwise, at the wharf and in the immediate neighborhood, of their own accord and without any invitation of the petitioner, but probably observing or understanding the state of affairs, followed the petitioner when he went on board the boat. An allegation has been made that they were guilty of violence and disorder in the transaction. Your petitioner observed no acts of violence committed by them, nor any other disorder than the natural expression of some feeling at the attempt of Colonel Wheeler to detain the woman by force; that there was not any violence or disorder amounting to a breach of the peace is also fairly to be inferred from the fact that two police officers were present, who were subsequently examined as witnesses, and stated that they did not see anything requiring or justifying their interference to preserve the peace. And your petitioner desires to state explicitly that he had no preconcert or connection of any kind with them or with their conduct, and considers that he is in no way responsible therefor. Your petitioner gave to Colonel Wheeler, at the time, his name and address, with the assurance that he would be responsible if he had injured any right which he had; fully believing at the time, as he does still believe, that he had committed no injury whatever to any right of Colonel Wheeler.

On the night of the same day your petitioner was obliged to leave the city to attend an election of the Atlantic and Ohio Telegraph Company, at Harrisburg, and returned to Philadelphia on Friday, the 20th of July, between one and two o’clock, A. M. Upon his return, an

alias

 writ of

habeas corpus

 was handed to him, issued from the district court of the United States for the eastern district of Pennsylvania, upon the petition of the said John H. Wheeler, commanding him that the bodies of the said Jane, Daniel and Isaiah he should have before the Hon. John K. Kane, judge of the said district court, forthwith. To the said writ your petitioner the same day, viz., the 20th day of July last past, made return, that the said Jane, Daniel and Isaiah, or by whatever name they may be called, nor either of them, were not then, nor at the time of issuing said writ, or the original writ, or at any other time, in the custody, power, or possession of, nor confined nor restrained of their liberty, by your petitioner; therefore he could not have the bodies of the said Jane, Daniel and Isaiah before the said judge, as by the said writ he was commanded.

Whereupon and afterwards, to wit: on the 27th day of July aforesaid, it was ordered and adjudged by the court that your petitioner be committed to the custody of the marshal, without bail or mainprize, as for a contempt in refusing to make return to a writ of

habeas corpus

 theretofore issued against him at the instance of Mr. John H. Wheeler; all which appears by the record and proceedings in the said case, which your petitioner begs leave to produce, and a copy of an exemplification of which is annexed to this petition. Thereupon, on the same day, a warrant was issued, commanding that the marshal of the United States, in and for the eastern district of Pennsylvania, forthwith take into custody the body of your petitioner, for a contempt of the honorable the judge of the said district court, in refusing to answer to the said writ of

habeas corpus

, theretofore awarded against him, the said petitioner, at the relation of Mr. John H. Wheeler, a copy of which is hereto annexed, and also a warrant, by and from the marshal of the United States, to the keeper of the Moyamensing prison, a copy of which is also hereto annexed; under which warrants your petitioner was committed to the said prison, and is now there detained, without bail or mainprize.

Notwithstanding the record is silent on the subject, your petitioner thinks it proper to state that, on the return of the writ of

habeas corpus

, the judge allowed the relator to traverse the said return by parol, under which permission the relator gave his own testimony, in which he stated that he held the said Jane, Daniel and Isaiah as slaves, under the law of Virginia, and had voluntarily brought them with him by railroad from the city of Baltimore to the city of Philadelphia, where he had been accidentally detained at Bloodgood’s hotel about three hours; and certain other witnesses were examined. From the testimony thus given, though not at all warranted by it or by the facts, the said judge decided that your petitioner had been concerned in a forcible abduction of the said Jane, Daniel and Isaiah, against their will and consent, upon the deck of the said steamboat, but admitted that your petitioner took no personally active part in such supposed abduction after he had left the deck.

The hearing took place on the morning of Friday, the 20th of July, at ten o’clock, your petitioner having had the first knowledge of the existence of any writ of

habeas corpus

 between one and two o’clock on the same morning. Under these circumstances, before the said testimony was gone into and afterwards, the counsel of your petitioner asked for time, until the next morning, for consultation and preparation for the argument of the questions which might arise in the case, which applications were refused by the court, and the hearing went on, and closed on the same morning between twelve and one o’clock.

On Tuesday, the 31st of July, 1855, your petitioner presented to the Hon. Chief Justice of this court a petition for a

habeas corpus

, which was refused.

Inasmuch as your petitioner is thus deprived of his liberty for an indefinite time, and possibly for his life, as he believes, illegally; inasmuch as he is a native citizen of Pennsylvania, and claims that he has a right to the protection of the commonwealth, and to have recourse to her courts for enlargement and redress; he begs leave respectfully to state some of the grounds on which he conceives that he is entitled to the relief which he now prays.

Whatever may be the view of the court as to the probability of his discharge on a hearing, your petitioner respectfully represents that he is clearly entitled to have a writ of

habeas corpus

 granted, and to be thereupon brought before the court. Upon this subject the Pennsylvania

habeas corpus

 act is imperative. Indeed, as the question of the sufficiency of the cause of his detention directly concerns his personal liberty, any law which should fail to secure to him the right of being personally present at its argument and decision, would be frightfully inconsistent with the principles of the common law, the provisions of our Bill of Rights, and the very basis of our government.

It is believed that no case, prior to that of your petitioner, is reported in Pennsylvania, of a refusal of this writ to a party restrained of his liberty, except the case of

Ex parte Lawrence

, 5 Binn. 304, in which it was decided that it was not obligatory on the court to issue a second writ of

habeas corpus

 where the case had been already heard on the same evidence upon a first writ of

habeas corpus

 granted by another court of the petitioner’s own selection: in other words, that the statutory right to the writ was exhausted by the impetration and hearing of the first writ, and that the granting of a second writ was at the discretion of the court. This case, therefore, appears to confirm strongly the position of your petitioner, that he is absolutely entitled at law to the writ for which he now prays.

On the hearing there will be endeavored to be established on behalf of your petitioner, on abundant grounds of reason and authority, the following propositions, viz.: —

1. That it is the right and duty of the courts, and especially of the supreme court of this commonwealth, to relieve any citizen of the same from illegal imprisonment.

2. That imprisonment under an order of a court or judge not having jurisdiction over the subject matter, and whose order is therefore void, is an illegal imprisonment.

3. That the party subjected to such imprisonment has a right to be relieved from it on

habeas corpus

, whether he did or did not make the objection of the want of jurisdiction before the court or judge inflicting such imprisonment; and that if he did not make such objection, it is immaterial whether he were prevented from making it by ignorance of the law, or by the want of extraordinary presence of mind, or by whatever other cause.

4. That the courts and judges of the United States are courts and judges of limited jurisdiction, created by a government of enumerated powers, and in proceedings before them the records must show the case to be within their jurisdiction, otherwise they can have none.

5. That if the record of any proceeding before them show affirmatively that the case was clearly without their jurisdiction, there can no presumption of fact be raised against such record for the purpose of validating their jurisdiction.

6. That no writ of

habeas corpus

 can be issued to produce the body of a person not in custody under legal process, unless it be issued in behalf and with the consent of said person.

7. That at common law, the return to a writ of

habeas corpus

, if it be an unevasive, full and complete, is conclusive, and cannot be traversed.

8. That a person held as a slave under the law of one state, and voluntarily carried by his owner for any purpose into another state, is not a fugitive from labor or service within the true intent and meaning of the constitution of the United States, but is subject to the laws of the state into which he has been thus carried; and that by the law of Pennsylvania a slave so brought into this state, whether for the purpose of passing through the same or otherwise, is free.

9. That the district court of the United States has no jurisdiction whatever over the q