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Modern Estimates of Two Infamous Judges and the Lesson of the Reputations of Jeffreys and Braxfield Frank W

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Modern Estimates of Two Infamous Judges and the Lesson of the Reputations of Jeffreys and Braxfield Frank W Journal of Criminal Law and Criminology Volume 31 Article 4 Issue 4 November-December Winter 1940 Modern Estimates of Two Infamous Judges and the Lesson of the Reputations of Jeffreys and Braxfield Frank W. Grinnell Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Frank W. Grinnell, Modern Estimates of Two Infamous Judges and the Lesson of the Reputations of Jeffreys and Braxfield, 31 Am. Inst. Crim. L. & Criminology 410 (1940-1941) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. MODERN ESTIMATES OF TWO "INFAMOUS" JUDGES AND THE LESSON OF THE REPUTATIONS OF JEFFREYS AND BRAXFIELD 1 2 Frank W. Grinnell The Whig pictures of Jeffreys and was like a formidable blacksmith. His others and the "Popish Plot" in the accent and his dialect were exaggerated Scotch; his language, 17th century, and of Lord Braxfield like his thoughts, short, strong, and conclusive. Illiterate and the Scotch sedition trials of the and without any taste for refined enjoy- end of the 18th century, have been re- ment, strength of understanding, which studied by various men who have given gave him power without cultivation, only encouraged him to a more con- us a more balanced picture of them and temptuous disdain of all natures less their background which helps us to get coarse than his own.' With regard to the history of the criminal law in his Lordship's conduct as a criminal perspective. judge, Cockburn describes it as a dis- grace to the age, and says he was never LORD BRAXFIELD so much in his element as when taunt- ing some wretched culprit, and sending Robert McQueen, Lord Braxfield, him to Botany Bay or the gallows with was born in 1722, the grandson of a an insulting jest." 3 gardener of the Earl of Selkirk and the Writing of the subject of the picture, son of the Earl's baron-baillie. He on his bicentenary in 1922, William became the leading counsel at the Roughead, a most readable author, tells Scottish bar, was appointed to the us that of the several ways by which bench in 1776, rather against his incli- the eminence of a "bicentenary" may be nation, was promoted to the position of attained: Lord Justice-Clerk-the Chief Crim- "there is one that surely leads to post- humous renown .... A high reputation inal Judge in Scotland-in 1788, and for wickedness is an unfailing passport presided at many of the sedition trials to immortality.... Whether you proudly in Scotland at the time of the French reign with Ahab and Caligula, or take humbler rank with Bluebeard or the Revolution. He died in 1799. Lord Tichborne claimant, the benefit of in- Cockburn, then a boy, and later a famy is assured." Scottish Whig who became a judge of "Something of this invidious fame has the early nineteenth century, left us, in been conferred by Lord Cockburn upon Lord Braxfield. Cockburn was in no his "Memorials," this picture: sense of the term a great judge, but he "'But the giant of the Bench was was a good man and a writer of much Braxfield. His very name makes people charm, so he justly enjoys wide popu- start yet. Strong built and dark, with larity and his opinions are generally rough eyebrows, powerful eyes, threat- received. Braxfield, a rough diamond, ening lips, and a low growling voice, he inelegant of manner, broad, convivial, IRead before the Massachusetts Historical 60 State St., Boston, Mass. Society. 3 "The Riddle of the Ruthves and Other 2 Editor of the Massachusetts Law Quarterly, Studies," Roughead, p. 48. [ 410 ] TWO "INFAMOUS" JUDGES strong in mind as in body, humorous lightful sketch in Some Portraits by after the fashion of Ben Jonson, pas- Raeburn, and the living picture in Weir sionately patriotic, an inveterate Tory, of Hermiston.* ... and above all a great lawyer, was the "In pronouncing moral judgment on full-blooded son of the Eighteenth Cen- the great figures of history the mistake tury. Cockburn, well bred, urbane, fas- is often made of applying our modern tidious, physically slight, a resolute standards to their so different condi- Whig of the Reform brand, and, both tions.... intellectually and professionally, less "Those who condemn Lord Braxfield distinguished than the other, was a child as a corpulent and foul-mouthed old of the new era. Had they met as men pagan-'his religion railing and his dis- -for Cockburn was a boy when Brax- course ribaldry'-are strangely ignorant ford died-my Lord might conceivably or forgetful of the manners of eigh- have called his learned colleague a teenth-century Edinburgh. Everybody 'daam'd auld wife'; Cockburn's retort, drank too much, swore too hard, if more genteelly phrased, would have laughed at everything, believed in little, been none the less unflattering. But and blushed at nothing. But one thing they never did so meet, for Cockburn Lord Braxfield did do, faithfully, with was not admitted to the Bar till the a single eye and an undivided heart- Justice-Clerk was in his grave, and the his duty. It was a corrupt age, most forbidding portrait of 'the Jeffreys of officials had their price, and he was Scotland' in the Memorials is painted above suspicion; it was a self-indulgent by a partisan brush with other people's age, and he wrought late and early at colours. ... what work was given him to do; it was "In this age of compromise and coali- a naughty age, and he was a good hus- tion we can hardly conceive the inflam- band, an affectionate father, a loyal matory effect upon our forebears of friend, and he left to his children the divergent political views. The Scot of heritage of his high reputation and an those days regarded differences in poli- unstained name. If he sat too long over tics and doctrine as equally vital, and the decanters, and if the raciness of his imported into the one a bitterness more humour was inordinately pronounced, properly reserved for the other. Cock- these were foibles which many of his burn, in writing his ex parte account of contemporaries, honourable and upright the sedition trials, says that he recog- men, were content to share. His critics nised the duty of never letting Brax- may be more nice of speech and less field and the years 1793 and 1794 be robust of stomach, but most of them forgotten,' and that he only refrained would be all the better for some of his from publishing it in his lifetime out of Lordship's brains." consideration for the feelings of the Why was such a man referred to as other judges' relatives (a). His endea- "the Jeffreys of Scotland"? Because vour thus to perpetuate the memory of 'this coarse and dexterous ruffian,' a his terrifying manner of conducting singular labour of love, might have criminal trials (even of guilty persons) failed of its purpose. Fortunately for in a hanging age of political ferment Lord Braxfield's fame there was ex- hibited at Edinburgh one autumn in the gave a "sinister conception of the trial 'seventies a collection of paintings by judge" which, as Pound tells us, was Sir Henry Raeburn, into which a certain brought to this country by the large 4 young advocate, with nothing better number of Scotch emigrants (widows, to do, found his way. The half-length of Robert M'Queen of Braxfield irresistibly relatives, friends and neighbors of Brax- attracted him; the result was the de- field's victims) at the beginning of the 4"Glengarry's Way and Other Studies," Wil- (a) "Examination of Trials for Sedition in liam Roughead (pp. 277 df. 297-8). Scotland," Edinburgh, 1888, i. 87. FRANK W. GRINNELL nineteenth century, and thus contrib- vast mass of infamy with which the uted to a popular distrust of powerful memory of the wicked judge has been loaded. judges in the criminal courts. The "He was a man of quick and vigorous "quality of mercy" had begun its parts, but constitutionally prone to in- modern influenceA solence and to the angry passions.... "he became the most consummate "THE BLOODY JEFFREYS" bully ever known in his profession. Tenderness for others and respect for Turning back a century-Sir George himself were feelings alike unknown to Jeffreys, in the short space of forty him. He acquired a boundless command years, was born, became a sergeant at of the rhetoric in which the vulgar law, Recorder of London, Lord Chief express hatred and contempt. The pro- fusion of maledictions and vituperative Justice of England and Lord Chancellor, epithets which composed his vocabulary and died in the Tower a great sufferer could hardly have been rivaled in the from the stone at the age of forty, after fish-market or the bear-garden. His countenance and his voice must always the abdication of James H, leaving a have been unamiable. But these natural reputation as the most infamous judge advantages-for such he seems to have thought them-he had improved to such in English history. This reputation a degree there were few who, in his also crossed the ocean, not only in the paroxysms of rage, could see or hear minds of English emigrants in large him without emotion. Impudence and numbers, but in English literature dur- ferocity sat upon his brow.
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