John Campbell Campbell.

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ATROCIOUS JUDGES.

Lives of Judges Infamous As Tools of Tyrants and Instruments
of Oppression.

Compiled from the Judicial Biographies of

JOHN LORD CAMPBELL,

Lord Chief Justice of England.

With an Appendix, Containing the Case of Passmore Williamson.

Edited, with an Introduction and Notes, by Richard Hildreth.







New York and Auburn:
Miller, Orton & Mulligan.
New York: 25 Park Row. - Auburn: 107 Genesee Street.
1856.

Entered, according to Act of Congress, in the Year 1855, by
Richard Hildreth,
In the Clerk's Office of the District Court of the District of
Massachusetts.

Stereotyped at the
Boston Stereotype Foundry.




ADVERTISEMENT.


The text of the following BOOK OF JUDGES has been derived from Lord
Campbell's _Lives of the Chief Justices, and Lives of the Chancellors_,
with only a few verbal alterations for the sake of connection, some
transpositions, the omission of some details of less interest to the
American reader, and the insertion of a few paragraphs, enclosed in
brackets, thus [ ].

Most biographers have been arrant flatterers. Lord Campbell is a
distinguished member of that modern school, which holds that history is of
no dignity nor use, except so far as it is true; and that the truth is to
be told at all hazards and without reserve. Hitherto social and political
position, obtained no matter by what means, has in general secured not
only present but future reputation. It can hardly fail to be a serious
check upon those who struggle for distinction to understand, that,
however they may cheat or dazzle their contemporaries, they must expect to
encounter from posterity a Rhadamantine judgment.

The object of the present work, prepared as it is in the interest of
justice and freedom, and designed to hold up a mirror to magistrates now
sitting on the American bench, in which "to show virtue her own feature,
scorn her own image, and the very life and body of the time his form and
pressure," will, I hope, induce Lord Campbell to pardon the liberty I have
ventured to take with his writings.

R. H.

BOSTON, _November 20, 1855_.




CONTENTS.


INTRODUCTION.

The administration of justice the great end of government, page 9.
Polity of the Anglo-Saxons, 10. County courts, 12. Policy of the
Norman conquerors, 13. Their scheme for the administration of justice,
14. Aula Regis, or King's Court, 15. Law proceedings become a mystery,
16. Division of the Aula Regis, 18. King's Bench, 18. Common Pleas,
19. Exchequer, 19. Court of Chivalry, or Honor Court, 19. Origin of
the legal profession as it exists at present - Inns of Court, 20.
Special Pleadings, 21. Serjeants, Barristers, and Attorneys, 22.
Justices of the peace, 23. Appeals to Parliament, 24. Trial by jury,
25. Nisi prius trials, 27. Usurpations of the courts upon each other,
28. Court of Chancery, 30. Court of Admiralty, 31. Use of torture, 32.
Suits for slander in the Court of Chivalry, 33. The courts the ready
tools of executive usurpation, 34. Courts of Star Chamber and High
Commission, 34. Sources and object of the present compilation, 35.
Bearing of the following narratives on passing events, 35.

CHAPTER I.

ROGER LE BRABANCON.

His ancestry, page 37. Made a judge, 37. Edward I. claims sovereignty
over Scotland, 39. The family of Bruce, 40. Robert de Brus, 41.
Contest for the Scottish throne, 43. Brabancon maintains Edward's
claim, 44. Is rewarded with the office of chief justice, 47.

CHAPTER II.

ROBERT TRESILIAN.

Appointed chief justice, 48. Ready for any dirty work, 49. Judicial
opinion in favor of the arbitrary power of the King, 50. Preparations
for judicial murders, 53. The barons march on London, 54. Tresilian
appealed of high treason, 56. Found guilty, 57. Arrest and execution,
59.

CHAPTER III.

THOMAS BILLING.

Lancastrians and Yorkists, 61. Fortescue and Markham, 61. Removal of
Markham, 63. Billing a judge, 64. His infamous character, 64. His
previous life, 64. Begins a Lancastrian, 65. The Yorkists having
triumphed, becomes a Yorkist, 66. Made a judge, 67. Trial of Walker,
67. A court favorite, 68. Chief justice, 69. Trial of Sir Thomas
Burdett, 69. Lancastrian revolution, 71. Billing changes, and keeps
his place, 72. Yorkist revolution, 72. Billing changes again, and
keeps his place, 73. Procures a pardon for Fortescue, 73. His law
decisions, 74. Trial of the Duke of Clarence, 74. Billing's death, 75.

CHAPTER IV.

JOHN FITZJAMES.

A friend of Wolsey's, 76. Who makes him attorney general, 77.
Prosecution of Buckingham, 77. Made a judge, 77. Chief justice, 78.
Turns against Wolsey after his fall, 78. Ecclesiastical pretensions
of Henry VIII., 80. Trial of Fisher, 81. Trial of Sir Thomas More, 83.
Trials of the supposed gallants of Anne Boleyn, 85. Fitzjames's
opinion as to the mode of Anne Boleyn's execution, 85. His death, 85.

CHAPTER V.

THOMAS FLEMING.

A rival of Bacon's, 87. His origin and progress, 87. Solicitor
general, 88. Speaker of the House of Commons, 89. Bacon his rival
there, 90. Fleming chief baron of the Exchequer, 90. His judgment in
the case of impositions, 91. Made chief justice, 94. Case of the
Postnati, 94. Trial of the Countess of Shrewsbury, 95. Wholly eclipsed
by Sir Edward Coke, 95. His death, 96.

CHAPTER VI.

NICHOLAS HYDE.

Plan of Charles I. to rule without Parliaments, 97. Sir Randolph
Crewe, chief justice, discharged to make room for Hyde, 98. His family
and previous career, 98. Case of Sir Thomas Darnel, 99. Petition of
Right, 102. Hyde's opinion that it would not be binding on the king,
103. Proceedings against Selden and others, 103. Hyde's death, 106.
Much applauded by true courtiers, 106.

CHAPTER VII.

JOHN BRAMPSTON.

Charles I. perseveres in his arbitrary schemes, 107. Brampston's
previous life, 107. Appointed chief justice, 109. Contrast between his
personal and political character, 109. Opinion in favor of ship money,
110. Trial of Hampden, 111. Lord Say's case, 111. Trial of Rev. Thomas
Harrison, 112. Brampston as a Star Chamber judge, 113. Case of the
Bishop of Lincoln, 114. Long Parliament, 115. Brampston impeached,
116. Turns about on the question of ship money, 116. Parliament
appeased, 117. Summoned by Charles to join him at his camp, 117.
Superseded, 118. Death and character, 118.

CHAPTER VIII.

ROBERT HEATH.

His origin and high prerogative principles, 119. Solicitor general,
120. Attorney general, 121. His share in the trial of Darnel, 121.
Holds the petition of right illegal, 122. His part in the trial of
Selden and his followers, 123. Schemes for raising money, 125. Chief
justice of the Common Pleas, 126. His removal from office, 127.
Returns to practice, 128. Judge of the King's Bench, 128. Chief
justice, 129. His acts as such, 129. Flies to the continent, 131.
Death and character, 131.

CHAPTER IX.

ROBERT FOSTER.

Reorganization of the bench at the restoration, 132. Foster's early
life, 133. Judge of the Common Pleas, 134. Joins the king at Oxford,
134. Removed by Parliament, 134. Returns to practice, 134. Reappointed
a judge by Charles II., 134. Chief justice, 134. Trial of Vane, 135.
Case of John Crook, 138. Case of Tonge and others, 139. Death, 140.

CHAPTER X.

ROBERT HYDE.

His connections and early history, 142. A judge of the Common Pleas,
141. Chief justice of the King's Bench - his installation, 143. Trial
of a printer, 144. Trial of Keach for libel, 146. Introduces the
practice of fining juries, 150. Cried up as an eminent judge, 151.
Drops dead, 151.

CHAPTER XI.

JOHN KELYNGE.

Appointed a judge, 152. Previous career, 153. Conducts the prosecution
of Colonel Hacker, 154. Made chief justice over Sir Matthew Hale's
head, 156. His behavior, 156. Moorfields rioters held guilty of
treason, 157. American application of this doctrine, 158, _note_.
Treatment of juries, 159. Conduct investigated by the House of
Commons, 161. Tame for the rest of his days, 162. His reports, 162.

CHAPTER XII.

WILLIAM SCROGGS.

His early life, 163. Judge of the Common Pleas, 165. Chief justice of
the King's Bench, 166. Favors the Popish Plot delusion, 167. American
counterpart of that plot, 167, _note_. Trial of Godfrey, 168. Of
others, 169. Of Bromwich, 170. Scroggs changes his policy, 171.
Wakeman acquitted, 172. Scroggs attacked by the mob, 172. His defence,
173. Castlemaine acquitted, 175. Trial of Mrs. Collier, 175. Charges
to grand juries, 176. Attack on the press, 177. Conduct in
Shaftesbury's case, 178. Charges made to the Council against Scroggs,
178. His trial, 179. House of Commons inquires into his conduct, 180.
General characteristics, 181. Removal from office, 182. His subsequent
life, 183. His infamy, 184.

CHAPTER XIII.

FRANCIS NORTH.

His noble birth, 185. Early life, 186. A court keeper, 188. Called to
the bar, 189. His early practice, 189. A lickspittle, 193. A leader at
the bar, 194. Makes his fortune by avowing "loyal" principles, 195.
Solicitor general, 197. His practice, 198. His loves, 199. Marriage,
200. Insignificant as a member of Parliament, 200. Attorney general,
201. Fees in abundance, 202. Chief justice of the Common Pleas, 203.
Conduct on the bench, 203. Career as a politician, 206. Legal oracle
of the party of arbitrary power, 206. Proclamation against coffee
houses, 206. Petitioners and Abhorrers - North obstructs the right of
petition, 207. Parliamentary proceedings against him, 208. Draws a
declaration against the popular party, 209. Trial of College, the
Protestant joiner, 210. Proceedings against Shaftesbury, 212. Attack
on the municipal privileges of London, 216. North made lord
chancellor, 217. His disappointment and dissatisfaction, 219. Assists
at the inauguration of Saunders, 220. His conduct as a law reformer
and equity judge, 221. As a statesman, 223. Joins in the proceedings
against the charter of London, 224. Made a peer - Disfranchises many
towns, 226. Dismisses Burnet, 226. Rye house plot, 227. Jeffreys his
rival, 227. His mortifications, 229. Triumphs over Jeffreys in the
matter of the recusants, 230. Death of Charles II., 233. Continued in
office by James II., 234. Puts the seal to a questionable
proclamation, 235. Parliament meets, 236. North snubbed, 236. Clings
to office, 237. Still thwarted and browbeaten by Jeffreys, 237.
Further mortifications, 239. His dejection and misery, 240. Monmouth's
insurrection, 240. His conduct as to the prisoners, 241. Death and
character, 242. Jokes upon him, 244. His writings, 245. His method of
living, 245. His domestic relations, 246. Descendants, 247. His early
death, 247. His life by Roger North, 247.

CHAPTER XIV.

EDMUND SAUNDERS.

Motives of his appointment, 248. Early history, 248. Called to the
bar, 250. His practice, 251. His reports, 251. Not desirous of
preferment, 253. Counsel for the crown, 253. Advises a _quo warranto_
against the city of London, 256. Appointed chief justice, 256. His
conduct in the London case, 258. Judgment of the court pronounced by
Justice Jones, 260. Trial of Lord Grey, 260. Sudden death, 264. His
appearance and manners, 264. His reports, 266.

CHAPTER XV.

GEORGE JEFFREYS.

His parentage, 267. School days, 267. Scheme of becoming a great
lawyer, 268. A student at the Inner Temple, 268. Associates with the
popular leaders, 272. Extravagance and poverty, 272. Precocity, 272.
Admitted to the bar, 273. Difficulties and energy, 273. Marriage, 274.
Practises at the Old Bailey and London sessions, 275. His forensic
abilities, 275. Common serjeant of the city of London, 276. His
contrivances to get on, 277. Opens a communication with the court,
278. Recorder of London, 279. Repudiates the liberals, 280. His policy
as to the Popish Plot, 282. His sentences of death, 282. Conduct in a
libel case, 283. Made chief justice of Chester, 284. His overbearing
insolence, 285. Visits his father, 287. Proceedings against him in
Parliament, 287. Resigns his recordership, 288. Complimented by the
king, 289. Chairman of the Middlesex sessions, 289. Counsel for the
crown against Fitzharris, Plunkett, and College, 290. Takes part in
other Court prosecutions, 292. Rye house trials, 294. Appointed chief
justice, 298. Trial of Algernon Sidney, 298. Case of Sir Thomas
Armstrong, 300. Of Sir William Williams, 301. Charters fall like
Jericho, 302. Other trials before him, 303. Rules London with a rod of
iron, 303. Reappointed chief justice by James II., 304. Trial of Titus
Oates for perjury, 304. Baxter's trial, 305. Jeffreys raised to the
peerage, 308. He rivals North, 310. His bloody assize, 310. Lady
Lisle's trial, 311. Other incidents of the bloody assize, 314.
Proceedings at Bristol, 319. In Somersetshire, 322. Prideaux's case,
323. An apologist for Jeffreys, 323. Tutchin's case, _note_, 323.
James or Jeffreys? 324. Made lord chancellor, 326. Hangs an alderman,
328. Meeting of Parliament, 329. Scheme of dispensing with the test
act, 330. Opinions of the judges in favor of the dispensing power,
332. Embassy to the pope, 333. Court of High Commission revived, 333.
Its proceedings, 334. Lord Delamere's trial, 334. Proceedings against
the Fellows of Magdalen College, 337. Prosecution of the seven
bishops, 338. Rivals of Jeffreys, 341. Birth of the Pretender, 342.
William of Orange lands in England, 343. James attempts
reconciliation, 344. Advance of William, 345. James flies, 347. Terror
of Jeffreys, 348. Search for him, 349. His arrest, 351. Committed to
the Tower, 353. James seeks to make him a scapegoat, 355. Assailed by
the press, 356. Presented with a halter, 356. Petition against him,
357. His death, 358. Domestic life, 359. His descendants, 359. Person
and manners, 359. Merits as a civil judge, 360. Chancery reforms, 361.
His opinion in favor of allowing counsel to prisoners, 362. His infamy
deserved, 363.

CHAPTER XVI.

ROBERT WRIGHT.

His parentage, youth, vices, and marriage, 364. His practice, 365. His
pecuniary embarrassments and frauds, 365. Becomes a favorite of
Jeffreys, 366. Who makes him a judge, 368. Attends Jeffreys in his
bloody assize, 368. Made chief justice, 369. Orders an illegal
execution, 370. Aids in forcing Catholic fellows on Magdalen College,
371. Sits in the Court of High Commission, 373. Volunteers an
extrajudicial opinion in favor of the Declaration of Indulgence, 374.
Attempts to force it to be read at Serjeant's Inn Chapel, 374. Trial
of the seven bishops, 374. At first unmolested after William of Orange
lands, 386. Arrested, and dies in Newgate, 386. His profligacy, 387.
Necessity of exposing wicked judges, 387.

APPENDIX. - CASE OF PASSMORE WILLIAMSON, 389-432




INTRODUCTION


Hume observes, in his History of England, that "among a people who lived
in so simple a manner as the Anglo-Saxons, the judicial power is always of
greater importance than the legislative." The same comparison will hold
good even in communities far more advanced in civilization than the
Anglo-Saxons. It has indeed been well said that the great end of the
complicated machinery of the existing British government is to get twelve
men into a jury box. It might even be laid down as a general principle
that the freedom or servitude of a people will mainly depend upon the sort
of administration of justice which they have - especially of criminal
justice.

The whole course of British history will serve to justify this
observation, since it has not been so much by the aid of mercenary
soldiers, as by the assistance of lawyers and judges, that tyranny has
sought to introduce itself into that country. It is in the history of the
English courts, still more than in the history of the English Parliament,
that we are to trace the origin and growth of those popular rights and of
that idea of public liberty, propagated from England to America, and upon
which our Anglo-American free institutions are mainly founded.

The origin of British liberty, by an ancient, constant, and affectionate
tradition, has uniformly been traced back to the times of the
Anglo-Saxons. It was, however, by judicial, far more than by legislative
institutions, that among those progenitors of ours private rights and
public liberty were guarantied.

The smallest political subdivision among the Anglo-Saxons was the tything,
(_teothing_,) consisting of ten families, the members of which were
responsible for the good conduct of each other. The head man of this
community, denominated tything-elder, (_teothing ealdor_,) seems to have
acted as a kind of arbitrator in settling disputes about matters of a
trifling nature; but whether he had actually a court for administering
justice does not appear. Next in order came the hundred, (_hundrede_,) or,
as it was called in the north of England, the _wapentake_, in its original
constitution consisting of ten tythings, or a hundred families, associated
together by a similar bond of mutual responsibility. Its head man was
called the hundred's elder, (_hundredes ealdor_,) or simply reeve,
(_gerefa_,) that being the generic term for the officer of any district,
or indeed for any officer.[1] This gerefa, along with the bishop of the
diocese, acted as the presiding officer of the hundred court, which met
once at least every month, and had both civil and criminal jurisdiction,
and cognizance also of ecclesiastical causes, which were entitled to
precedence over every other business.

There was besides a shire or county court (_shir-gemot_) held twice every
year, or oftener if occasion required, convened by the sheriff,
(_shir-reeve_,) or, as he was sometimes also called, the alderman,
(_ealdor-man_,) who presided over it, assisted by the bishop. Here causes
were decided and business was transacted which affected the inhabitants of
several of the hundreds.

The highest court of all was that of the king, the Wittenagemot,
(_witan-gemot_,) in which he himself was present, attended by his
councillors, or _witan_. This body, which united the functions of a
legislative, judicial, and executive council, had no fixed times or place
of meeting, but was held as occasion required, wherever the king happened
to be. As to its judicial functions, it was in general only a court of
extraordinary resort; it being a rule of the Anglo-Saxon law that none
should apply for justice to the king unless he had first sought it in vain
in the local courts.[2]

Hence the hundred and county courts occupied by far the most conspicuous
position in the Anglo-Saxon judicial polity. The Anglo-Saxon shires, it
may be observed, having been originally principalities, nearly, if not
altogether, independent, but gradually united into one kingdom, were
rather tantamount to our Anglo-American states than to our counties, of
which the Saxon hundreds may be taken as the equivalent; the tythings
corresponding to our Anglo-American townships; while (to carry out the
parallel) the central authority of the king and the wittenagemot may be
considered as represented by our federal system generally.

But though the reeve and the bishop presided in the local Anglo-Saxon
courts, it was rather in the character of moderators than of judges; that
latter function being performed by the freeholders of the county, all of
whom, not less than the bishop and the reeve, had the right and were bound
to give their attendance at these courts.

"Suits," says Hume,[3] "were determined in a summary manner, without much
pleading, formality, or delay, by a majority of voices;[4] and the bishop
and alderman had no further authority than to keep order among the
freeholders, and interpose with their opinion."

These county courts, though traces of them are to be found in all the old
Teutonic states of Europe, became ultimately peculiar to England. None of
the feudal governments of continental Europe had any thing like them; and
Hume, with his usual sagacity, has remarked that perhaps this institution
had greater effects on the political system of England than has yet been
distinctly pointed out. By means of this institution, all the freeholders
were obliged to take a share in the conduct of affairs. Drawn from that
individual and independent state, so distinctive of the feudal system, and
so hostile to social order and the authority of law, they were made
members of a political combination, and were taught in the most effectual
manner the duty and advantages of civic obedience by being themselves
admitted to a share of civic authority. Perhaps, indeed, in this
Anglo-Saxon institution of hundred and county courts we are to seek the
origin of that system of local administration and self-government still
more fully carried out in America than in England, by which English and
Anglo-American institutions are so strongly distinguished from those of
Europe, and in the judicious combination of which with a central
administration, for matters of general concern, British and American
liberty, as a practical matter, mainly consists.

One of the first procedures of the Norman Conqueror, by way of fixing his
yoke upon the shoulders of the English people, was gradually to break down
and belittle this local administration of justice. He did not venture,
indeed, to abolish institutions so venerable and so popular, but he
artfully effected his purpose by other means. He began by separating the
civil and ecclesiastical jurisdictions. The bishops, according to a
fashion recently introduced on the continent, were authorized to hold
special courts of their own. These courts were at first limited to cases
in which ecclesiastical questions were involved, or to which clergymen
were parties but by the progress of an artful system of usurpations,
familiar to the courts of all ages and nations, they gradually extended
their authority to many purely lay matters, under pretence that there was
something about them of an ecclesiastical character. It was under this
pretence that the English ecclesiastical courts assumed jurisdiction of
the important matters of marriage and divorce, of wills, and of the
distribution of the personal property of intestates - a jurisdiction which
they still retain in England, and which, though we never had any
ecclesiastical courts in the United States of America, has left deep
traces upon our law and its administration as to these subjects.

In establishing these separate ecclesiastical courts, the Conqueror made a
serious departure from his leading idea of centralization; and he thereby
greatly contributed to build up a distinct theocratic power, which
afterwards, while intrenching on the rights of the laity, intrenched also
very seriously on the authority of his successors on the throne. But this
was a danger which either he did not foresee - since he possessed, though
his next successor relinquished it, the sole power of appointing
bishops - or which he overlooked in his anxiety to diminish the importance
of the old Saxon tribunals.

Both the civil and criminal authority of the local courts was greatly
curtailed. Their jurisdiction in criminal cases was restricted to small
matters, and even as to questions of property was limited to cases in
which the amount in dispute did not exceed forty shillings; though,
considering the superior weight of the shilling at that time, the greater
comparative value in those ages of the precious metals, and the poverty of
the country, this was still a considerable sum.

The general plan for the administration of justice of the Anglo-Norman
government was a court baron in each of the baronies into which the



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