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

137

This “dispensing power” claimed by Jeffreys and the English judges for James II. was but a trifle compared to the “dispensing power” recently claimed by some of our American lawyers and judges for acts of Congress. All that was claimed for James was, power to dispense with acts of Parliament, while our American improvers upon this doctrine go so far as to claim for Congress a power to dispense with and supersede the laws of God. —Ed.

138

Whether diplomatic intercourse with the pope is now forbidden, depends upon the construction to be put upon the words, “shall hold communion with the see or church of Rome” in the Bill of Rights. This seems to refer to spiritual communion only, or the queen would hold communion with the successor of Mahomet by appointing an ambassador to the sublime porte.

139

The strong analogy between these ecclesiastical commissioners and our recent American slave catching commissioners, both in powers, method of procedure, and object arrived at, has been already referred to, and can hardly fail to strike the reader. —Ed.

140

Judge Kane, in Passmore Williamson’s case, went further than that. Because he refused to obey the mandate of Judge Kane to produce in his court certain persons over whom he had no control, with a view to their surrender to slavery, Judge Kane, under the name of a contempt, sentenced him to an indefinite imprisonment. —Ed.

141

When a peer is tried in Parliament before the House of Lords, the lord high steward votes like the rest of the peers, who have all a right to be present; but if the trial be out of Parliament, the lord high steward is only the judge to give direction in point of law, and the verdict is by the lords triers specially summoned.

142

In James’s memoirs, all the blame of this prosecution is thrown upon Jeffreys; but it is more probable that he only recklessly supported his master.

143

The arrangement of counsel in this celebrated case was very whimsical. The bishops were defended by Pemberton, the ex-chief justice, who had presided at several of the late state trials, by Levinz, Sawyer, and Finch, who had conducted them very oppressively for the crown, and by Pollexfen, Treby, and Somers, considered steady Whigs.

144

It was pretended by the anti-Jacobites, that is, the enemies of James and the exiled Stuarts, that the infant had been smuggled into the queen’s bed in a warming-pan. —Ed.

145

24th November, 1688. 2 Vernon, 88, Searle v. Lane. By a reference to the minute books in the registrar’s office, it appears that Jeffreys sat again on Monday, Nov. 26, when he decided Duval v. Edwards, a case on exceptions, nine in number, giving a separate judgment on each. He did not sit on the 27th, but he did on the 28th, which was the last day of term. So late as the 8th of December he sat and heard several petitions. In the evening of this day the great seal was taken from him.

146

“Bottomry bond.” This contraction shows the etymology of an elegant English word from “bottom,” which Dr. Johnson chooses to derive from the Dutch word “bomme.”

147

i. e. The principal being put in hazard, the interest was not usurious.

148

The following is from Macaulay’s elaborate portraiture of Jeffreys on the bench: “All tenderness for the feelings of others, all self-respect, all sense of the becoming, were obliterated from his mind. He acquired a boundless command of the rhetoric in which the vulgar express hatred and contempt. The profusion of maledictions and vituperative epithets which composed his vocabulary could hardly have been rivalled in the fish-market or the bear-garden. His countenance and his voice must always have been unamiable; but these natural advantages – for such he seems to have thought them – he had improved to such a degree that there were few who, in his paroxysms of rage, could see or hear him without emotion. Impudence and ferocity sat upon his brow. The glare of his eyes had a fascination for the unhappy victim on whom they were fixed; yet his brow and eye were said to be less terrible than the savage lines of his mouth. His yell of fury, as was said by one who had often heard it, sounded like the thunder of the judgment day.”

149

Down to this time trials at nisi prius had not assumed their present shape. The issue being read to the jury, the evidence was given, and with hardly any speeches from counsel, all seems to have been left to the judge.

150

10 State Trials, 267.

151

The plan was formed of ruling by a standing army. But without a Parliament, how was this army to be kept in a proper state of discipline? In time of war, or during a rebellion, troops in the field were subject to martial law, and they might be punished, by sentence of a court martial, for mutiny or desertion. But the country was now in a state of peace and profound tranquillity; and the common law, which alone prevailed, knew no distinction between citizen and soldier; so that, if a lifeguardsman deserted, he could only be sued for breach of contract, and if he struck his officer, he was only liable to an indictment or an action of battery. While the king’s military force consisted of a few regiments of household troops, with high pay, desertion was not to be apprehended, and military offences were sufficiently punished by dismission from the service. But James found it impossible to govern the numerous army which he had collected at Hounslow without the assistance of martial law; and he contended that, without any act of Parliament, he was at all times entitled, by virtue of his prerogative, to put martial law in force against military men, although it could only be put in force against civilians when war or rebellion was raging in the kingdom.

The question first arose at the Old Bailey, before Sir John Holt, then recorder of London, and he decided against the crown, as might have been expected; for, while avoiding keen partisanship in politics, he had been always Whiggishly inclined. James thought he was quite secure by appealing to the ultra Tory, Lord Chief Justice Herbert. To the utter amazement of the king and the courtiers, this honorable, although shallow, magistrate declared that, without an act of Parliament, all laws were equally applicable to all his majesty’s subjects, whether wearing red coats or gray. Being taunted with inconsistency in respect of his judgment in favor of the dispensing power, he took this distinction, “that a statute altering the common law might be suspended by the king, who is really the lawgiver, notwithstanding the form that he enacts ‘with the assent of the lords spiritual and temporal, and Commons;’ but that the common law cannot be altered by the king’s sole authority, and that the king can do nothing contrary to the common law, as that must be considered coeval with the monarchy.”

James, with the infatuated obstinacy which was now driving him to destruction, set this opinion at defiance; and, encouraged by Jeffreys, caused a soldier to be capitally prosecuted, at the Reading assizes, for deserting his colors. The judges who presided there resorted to some obsolete, inapplicable act of Parliament, and were weak enough to lay down the law in the manner suggested to them by the chancellor, so that a conviction was obtained. To give greater solemnity and eclat to the execution, the attorney general moved the Court of King’s Bench for an order that it might take place at Plymouth, in sight of the garrison from which the prisoner had run away. But Herbert peremptorily declared that the court had no jurisdiction to make such an order, and prevailed on his brother Wythens to join with him in this opinion. Mr. Attorney took nothing by his motion, but the recreant chief justice and the recreant puisne were both next morning dismissed from their offices, to make way for the most sordid wretches to be picked up in Westminster Hall – Sir Robert Wright and Sir Richard Allibone, a professed Papist.

152

The two clergymen who were most applauded on this occasion were the bold one, who, refusing to obey the royal mandate, took for his text “Be it known unto thee, O king, that we will not serve thy gods, nor worship the golden image which thou hast set up;” and the humorous one, who, having said, “My brethren, I am obliged to read this declaration, but you are not obliged to listen to it,” waited till they were all gone, clerk and all, before the reading of the declaration began.

153

More than one American advocate for treating the fugitive slave act as a law, and submitting to it as such, till repealed, has preached precisely this doctrine. —Ed.

154

12 State Trials, 183-523.

155

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.”

156

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.

157

Jane Johnson’s suggestions, on the ground that she was a stranger to the proceeding, were allowed no weight towards the liberation of Williamson, and were refused admittance on the files of the court. At the same time, the suggestions of Mr. Cadwallader, another stranger, were eagerly clutched at and put upon the record, with a view to better the position of Judge Kane.

158

The account of the final proceedings is from the Philadelphia Evening Bulletin.