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

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.

“Wallop interposed, but fared no better than his leader. ‘You are in all these dirty causes, Mr. Wallop,’ said the judge. ‘Gentlemen of the long robe ought to be ashamed to assist such factious knaves.’ The advocate made another attempt to obtain a hearing, but to no purpose. ‘If you do not know your duty,’ said Jeffreys, ‘I will teach it you.’

“Wallop sat down, and Baxter himself attempted to put in a word; but the chief justice drowned all expostulation in a torrent of ribaldry and invective, mingled with scraps of Hudibras. ‘My lord,’ said the old man, ‘I have been much blamed by dissenters for speaking respectfully of bishops.’ ‘Baxter for bishops!’ cried the judge; ‘that’s a merry conceit indeed. I know what you mean by bishops – rascals like yourself, Kidderminster bishops, factious, snivelling Presbyterians!’ Again Baxter essayed to speak, and again Jeffreys bellowed, ‘Richard, Richard, dost thou think we will let thee poison the court? Richard, thou art an old knave. Thou hast written books enough to load a cart, and every book as full of sedition as an egg is full of meat. By the grace of God, I’ll look after thee. I see a great many of your brotherhood waiting to know what will befall their mighty Don. And there,’ he continued, fixing his savage eye on Bates, ‘there is a doctor of the party at your elbow. But, by the grace of God Almighty, I will crush you all!’

“Baxter held his peace. But one of the junior counsel for the defence made a last effort, and undertook to show that the words of which complaint was made would not bear the construction put on them by the information. With this view he began to read the context. In a moment he was roared down. ‘You sha’n’t turn the court into a conventicle!’ The noise of weeping was heard from some of those who surrounded Baxter. ‘Snivelling calves!’ said the judge.

“Witnesses to character were in attendance, and among them were several clergymen of the established church. But the chief justice would hear nothing. ‘Does your lordship think,’ said Baxter, ‘that any jury will convict a man on such a trial as this?’ ‘I warrant you, Mr. Baxter,’ said Jeffreys. ‘Don’t trouble yourself about that.’ Jeffreys was right. The sheriffs were the tools of the government. The jury, selected by the sheriffs from among the fiercest zealots of the Tory party, conferred for a moment, and returned a verdict of guilty. ‘My lord,’ said Baxter, as he left the court, ‘there was once a chief justice who would have treated me very differently.’ He alluded to his learned and virtuous friend, Sir Matthew Hale. ‘There is not an honest man in England,’ said Jeffreys, ‘but looks on thee as a knave.’”

128

It is remarkable that the first common law judge, ever as such raised to the peerage, was this infamous Jeffreys. We speak of Lord Coke, Lord Hale, and so of the other chief justices, but they were lords simply by their surnames and by virtue of their office, and not peers. —Ed.

129

Ante, p. 237, et seq.

130

Bristol at this time was next to London in population, wealth, and commerce. —Ed.

131

Macaulay states the number of the transported at eight hundred and forty-one, and of the hanged at three hundred and twenty. —Ed.

132

He bought with it a large estate, the name of which the people changed to Aceldama, as being bought with innocent blood. —Ed.

133

Perhaps this writer had in his eye the case of John Tutchin, a noted political writer, satirized by Pope, a mere boy at the time of the rebellion, and of whose case Macaulay gives the following account: “A still more frightful sentence was passed on a lad named Tutchin, who was tried for seditious words. He was, as usual, interrupted in his defence by ribaldry and scurrility from the judgment seat. ‘You are a rebel; and all your family have been rebels since Adam. They tell me that you are a poet. I’ll cap verses with you.’ The sentence was, that the boy should be imprisoned seven years, and should, during that period, be flogged through every market town in Dorsetshire every year. The women in the galleries burst into tears. The clerk of the arraigns stood up in great disorder. ‘My lord,’ said he, ‘the prisoner is very young. There are many market towns in our county. The sentence amounts to whipping once a fortnight for seven years.’ ‘If he is a young man,’ said Jeffreys, ‘he is an old rogue. Ladies, you do not know the villain as well as I do. The punishment is not half bad enough for him. All the interest in England shall not alter it.’ Tutchin, in his despair, petitioned, and probably with sincerity, that he might be hanged. Fortunately for him, he was, just at this conjuncture, taken ill of the small pox, and given over. As it seemed highly improbable that the sentence would ever be executed, the chief justice consented to remit it in return for a bribe which reduced the prisoner to poverty. The temper of Tutchin, not originally very mild, was exasperated to madness by what he had undergone. He lived to be known as one of the most acrimonious and pertinacious enemies of the house of Stuart and of the Tory party.” —Ed.

134

Ante, p. 000.

135

One of the strongest testimonies against James is his own letter to the Prince of Orange, dated Sept. 24, 1685, in which, after giving him a long account of his fox-hunting, he says, “As for news, there is little stirring, but that the lord chief justice has almost done his campaign. He has already condemned several hundreds, some of which are already executed, some are to be, and the others sent to the plantations.” —Dalrymple’s App. part ii. 165. The only public man who showed any bowels of compassion amidst these horrors was Lord Sunderland. Whig party writers are at great pains to exculpate Pollexfen, the great Whig lawyer, who conducted all these prosecutions as counsel for the crown; but I think he comes in for no small share of the infamy then incurred, and he must be considered as principal aide de camp to Jeffreys in the western campaign. He ought to have told the jury that there was no case against the Lady Lisle, and when a few examples had been made, he ought to have stopped the prosecutions, or have thrown up his briefs.

136

I hope I have not been prejudiced in my estimate of James’s character by the consideration that when acting as regent in Scotland he issued an order (afterwards recalled) for the utter suppression of the name of Campbell, “which,” says Mackintosh, “would have amounted to a proscription of several noblemen, a considerable body of gentry, and the most numerous and powerful tribe in the kingdom.”