Other Judicial appointments were continually made in the same spirit. Thus when Sir Randolf Crewe was Chief Justice of the King's Bench, the government questioned him to ascertain if he were "sound," and were shocked to hear him declare that the King had no right to levy taxes without consent of Parliament, or imprison his subjects without due process of law. He was "immediately dismissed from his office," (1626,) and Sir Nicolas Hyde appointed in his place. By such means the courts were filled with tools of the King or his favorites, and the pit digged for the liberties of the People, into which at last there fell—the head of the King!
Charles II. and James II., (1655-1686,) did not mend the evil, but appointed for judges "such a pack as had never before sat in Westminster Hall." Shaftesbury and Guildford had the highest judicial honors. Lord Chancellor Finch, mentioned already, had been accused by the Commons of High Treason and other misdemeanors, but escaped to the continent, and returned after the Restoration. He was appointed one of the Judges to try the Regicides. Thus he "who had been accused of high treason twenty years before by a full parliament, and who by flying from their justice saved his life, was appointed to judge some of those who should have been his Judges."[8] He declared in Parliament that Milton, for services rendered to the cause of liberty while Latin Secretary to Cromwell, "deserved hanging."[9]
In these reigns such men as Saunders, Wright, and Scroggs, were made Judges, men of the vilest character, with the meanest appetites, licentious, brutal, greedy of power and money, idiotic in the moral sense, appointed solely that they might serve as tools for the oppression of the People. Among these infamous men was George Jeffreys, of whom Lord Campbell says,—"He has been so much abused that I began my critical examination of his history in the hope and belief that I should find that his misdeeds had been exaggerated, and that I might be able to rescue his memory from some portion of the obloquy under which it labors; but I am sorry to say that in my matured opinion his cruelty and his political profligacy have not been sufficiently exposed or reprobated; and that he was not redeemed from his vices by one single solid virtue."[10] But in consequence of his having such a character, though not well-grounded in law, he was made a Judge, a Peer, and a Lord Chancellor! Wright, nearly as infamous, miraculously stupid and ignorant, "a detected swindler, knighted and clothed in ermine, took his place among the twelve judges of England."[11] He also was made Chief Justice successively of the Common Pleas and the King's Bench! Lord Campbell, himself a judge, at the end of his history of the reign of Charles and James, complains of "the irksome task of relating the actions of so many men devoid of political principle and ready to suggest or to support any measures, however arbitrary or mischievous, for the purpose of procuring their own advancement."[12] It was the practice of the Stuarts "to dismiss judges without seeking any other pretence, who showed any disposition to thwart government in political prosecutions."[13] Nor was this dismissal confined to cases where the judge would obey the law in merely Political trials. In 1686 four of the judges denied that the king had power to dispense with the laws of the land and change the form of religion: the next morning they were all driven from their posts, and four others, more compliant, were appointed and the judicial "opinion was unanimous." Hereupon Roger Coke says well,—"the king ... will make the judges in Westminster Hall to murder the common law, as well as the king and his brother desired to murder the parliament by itself; and to this end the king, when he would make any judges would make a bargain with them, that they should declare the king's power of dispensing with the penal laws and tests made against recusants, out of parliament."[14]
Here, Gentlemen of the Jury, I must mention three obscure judges who received their appointments under Stuart kings. Before long I shall speak of their law and its application, and now only introduce them to you as a measure preliminary to a more intimate acquaintance hereafter.
1. The first is Sir William Jones, by far the least ignoble of the three. He was descended from one of the Barons who wrung the Great Charter from the hands of King John in [1618], and in 1628 dwelt in the same house which sheltered the more venerable head of his Welsh ancestor. In 1628 he was made judge by Charles I. He broke down the laws of the realm to enable the king to make forced loans on his subjects, and by his special mandate (Lettre de Cachet) to imprison whom he would, as long as it pleased him, and without showing any reason for the commitment or the detention! Yes, he supported the king in his attempt to shut up members of parliament for words spoken in debate in the house of commons itself; to levy duties on imports, and a tax of ship-money on the land. He was summoned before parliament for his offences against public justice, and finally deprived of office, though ungratefully, by the king himself.[15]
2. Thomas Twysden was counsel for George Coney in 1655, a London merchant who refused to pay an illegal tax levied on him by Cromwell—who followed in the tyrannical footsteps of the king he slew. Twysden was thrown into the Tower for defending his client—as Mr. Sloane, at Sandusky, has just been punished by the honorable court of the United States for a similar offence,—but after a few days made a confession of his "error," defending the just laws of the land, promised to offend no more, and was set at liberty, ignominiously leaving his client to defend himself and be defeated. This Twysden was made judge by Charles II. The reporters recording his decisions put down "Twysden in furore," thinly veiling the judicial wrath in modest Latin. He was specially cruel against Quakers and other dissenters, treating George Fox, Margarett Fell, and John Bunyan with brutal violence.[16]
3. Sir John Kelyng is another obscure judge of those times. In the civil war he was a violent cavalier, and "however fit he might be to charge the Roundheads under Prince Rupert, he was very unfit to charge a jury in Westminster Hall." In 1660 he took part in the trial of the Regicides and led in the prosecution of Colonel Hacker, who in 1649 had charge of the execution of Charles I. In 1662 he took part in the prosecution of Sir Henry Vane, and by his cruel subtlety in constructing law, that former governor of Massachusetts,—one of the most illustrious minds of England, innocent of every crime, was convicted of high treason and put to death.[17] For this service, in 1663 Kelyng was made a judge; and then, by loyal zeal and judicial subserviency, he made up "for his want of learning and sound sense." But he was so incompetent that even the court of Charles II. hesitated to make him more than a puny judge. But he had been a "valiant cavalier," and had done good service already in making way with such as the king hated, and so after the death of Sir Nicolas Hyde, he was made Lord Chief Justice in his place. "In this office," says Judge Campbell, he "exceeded public expectation by the violent, fantastical, and ludicrous manner in which he conducted himself."[18] But I will not now anticipate what I have to say of him in a subsequent part of this defence.
Gentlemen of the Jury, we shall meet these three together again before long, and I shall also speak of them "singly or in pairs." In the mean time I will mention one similar appointment in the reign of George the III.—the last king of New England.