Atrocious Judges Part 27

[83] Roger North, whose curious life of his brother is largely quoted in this memoir.--_Ed._

[84] At that time not more than fifty volumes were required. Now, unfortunately, a law library is "_multorum camelorum onus_," (a load for many camels.)

[85] This sort of practice on the weakness of judges, keeping them in good humor by flattery and complaisance, may possibly, as the text implies, be abandoned in England, but in America it is still sufficiently common.--_Ed._

[86] The distinguishing badge worn by the king's counsel. The barristers wear stuff gowns. The serjeants, (the highest rank of pract.i.tioners,) enjoying a monopoly of the practice of the Court of Common Pleas, which originally had exclusive cognizance of all civil actions, have or had, as their badges, a coif, or black velvet cap, (for which a wig was about this time subst.i.tuted,) and parti-colored robes.--_Ed._

[87] The hours then kept must have been very inconvenient for lawyers in Parliament, as all the courts and both houses met at eight in the morning and sat till noon.

[88] This early rising rendered it necessary for him to take "a short turn in the other world after dinner."

[89] Roger a.s.sures us he did not purloin any part of the treasure, for which he takes infinite credit to himself.

[90] This was the t.i.tle taken by Finch on promotion to the great seal.

Nottingham is greatly lauded by Blackstone and other writers on jurisprudence as a "consummate lawyer," and as the father of the modern English equity system. His abilities were unquestionable, but his political career, like that of so many other "consummate lawyers," has some very black spots.--_Ed._

[91] Here we have one of many English precedents of a.s.sault upon the right of pet.i.tion--a thing by no means unknown in our American politics.--_Ed._

[92] The same Parliament had already impeached Scroggs. See ante, p. 180.

[93] Here again is the old pretence of "levying war," under which it has been attempted with us to convert hostility to the fugitive slave act into treason. See ante, p. 158.--_Ed._

[94] Pemberton, though well aware that, to justify the grand jury in finding an indictment, a _prima facie_ case of guilt must be made out, instructed them that "a probable ground of accusation" was sufficient.--_Ed._

[95] By this word "pension," I conceive we are to understand _salary_ while the lord keeper was in office, and not, as might be supposed, an allowance on his retirement.

[96] Pemberton had been appointed to succeed Scroggs as chief justice of the King's Bench, but not being found quite serviceable enough, was now removed into another court.--_Ed._

[97] "Sir F. North being made lord keeper on the death of the Earl of Nottingham, the lord chancellor, I went to congratulate him. He is a most knowing, learned, and ingenious person; and, besides having an excellent person, of an ingenuous and sweet disposition, very skilful in music, painting, the new philosophy, and political studies."--_Mem._ i. 513.

Judge Kane is said to be quite an accomplished person.--_Ed._

[98] The princ.i.p.al obstacle to law reform in America is the pecuniary interest which the lawyers think they have in keeping up old abuses.--_Ed._

[99] Bishop Burnet, the historian.

[100] See beyond, life of Jeffreys, p. 302.

[101] An account of Guilford's unavailing attempt to prevent this appointment will be found in the life of Wright, chap. xix.--_Ed._

[102] It is curious that Roger gravely states that "he was dropped from the tory list and turned trimmer."--_Life_, i. 404.

[103] Life, ii. 179. It should be recollected that, at this time, the council met in the afternoon, between two and three--dinner having taken place soon after twelve, and a little elevation from wine was not more discreditable at that hour than in our time between eleven and twelve o'clock at night.

[104] James and Jeffreys setting themselves up as the special advocates of toleration, (with a view to the introduction of Popery,) is like our American slaveholders putting themselves forward as advocates of the rights of property and as special democrats, for the purpose of upholding slavery, based as slavery is on principles at war with the fundamental idea of property and democracy.--_Ed._

[105] Life, ii. 150, 153, 334.

[106] Lord c.o.ke lays down, that upon such an occasion there ought to be a warrant by advice of the Privy Council, as in 32 H. 8, to certain physicians and surgeons named, authorizing them to administer to the royal patient "potiones, syrupos, confectiones, laxitivas medicinas, clysteria, suppositoria, capitis purgea, capitis rasuram, fomentationes, embrocationes, emplastra," &c.; still, that no medicine should be given to the king but by the advice of his council; that no physic should be administered except that which is set down in writing, and that it is not to be prepared by any apothecary, but by the surgeons named in the warrant.--4 _Inst._ 251. These were the precautions of times when no eminent person died suddenly without suspicion of poison. Even Charles II.

was at first said to have been cut off to make way for a Popish successor, although, when the truth came out, it appeared that he had himself been reconciled to the Roman Catholic church.

[107] See the speech at full length. Life, ii. 192. There is nothing in it very good or very bad.

[108] Evelyn tells us that this was the first rhinoceros ever introduced into England, and that it sold for two thousand pounds.

[109] We may add--for his tory principles, and for the loss of America to the British crown.--_Ed._

[110] Saunders was very ingenious; but in the invention of charges to serve the turn of tyranny he has his match in some of our American lawyers.--_Ed._

[111] This is not the William Jones mentioned in the life of Lord North, but a person of a different character, one Edward Jones.--_Ed._

[112] So we have lately seen five inhabitants of Philadelphia prosecuted for a riot, for aiding to give effect to a statute of that state abolishing negro slavery.--_Ed._

[113] The editions of these Reports by the late Serjeant Williams, and by the present most learned judges, Mr. Justice Patteson and Mr. Justice Vaughan Williams, ill.u.s.trated by admirable notes, may be said to embody the whole common law of England, scattered about, I must confess, rather immethodically.

[114] The name is spelt no fewer than eight different ways--"Jeffries,"

"Jefferies," "Jefferys," "Jeffereys," "Jefferyes," "Jeffrys," "Jeffryes,"

and "Jeffreys," and he himself spelt it differently at different times of his life; but the last spelling is that which is found in his patent of peerage, and which he always used afterwards.

[115] "_Le roy s'avisera_," the royal veto to a bill pa.s.sed by the two houses.

[116] 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._

[117] See the account of this trial in the life of North, Lord Guilford, ante, p. 210.

[118] See ante, p. 220.

[119] See life of Saunders, ante, p. 261.

[120] Evelyn, Oct. 4, 1683. "Sir Geo. Jeffreys was advanced, reputed to be most ignorant, but most daring."

[121] 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 ent.i.tled to a jury.

[122] 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.'"

[123] Dangerfield had been a confederate of Oates as one of the false witnesses to the pretended Popish plot.--_Ed._

[124] For the disputes between them, see ante, p. 228-240.

[125] Ante, p. 230.

[126] 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 mult.i.tude 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 fort.i.tude 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 inst.i.tutions 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 t.i.tus 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 t.i.tle 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 a.s.signed 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._

[127] Fox's Hist. James, ii. 96.