[143] 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.
[144] 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.
[145] 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.
[146] 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.
[147] “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.”
[148] i. e. The principal being put in hazard, the interest was not usurious.
[149] 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.”
[150] 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.
[151] 10 State Trials, 267.
[152] 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.