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

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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. The glare of his eyes had a fascination for the un- ing the rise of the Whigs in the genera- happy victim on whom they were fixed. tions following the Revolution of 1688. Yet his brow and his eyes were less The most widely read accounts of this terrible than the savage lines of his mouth. His yell of fury, as was said by extraordinary young man are those of one who had often heard it, sounded Lord Campbell and of Macaulay, espe- like the thunder of the judgment-day. cially. Macaulay begins his picture (in These qualifications he carried, while still a young the fourth volume of his "History") as man, from the bar to the bench.... follows: "As a judge at the City Sessions he "The depravity of this man has passed exhibited the same propensities which into a proverb. Both the great English afterward, in a higher post, gained for parties have attacked his memory with him an unenviable immortality. Al- emulous violence; for the Whigs con- ready might be remarked in him the sidered him as their most barbarous most odious vice which is incident to enemy; and the Tories found it con- human nature, a delight in misery venient to throw on him the blame of merely as misery. There was a fiendish all the crimes which had sullied their exultation in the way in which he pro- triumph. A diligent and candid inquiry nounced sentence on offenders. Their will show that some frightful stories weeping and imploring seemed to titil- which have been told concerning him late him voluptuously; and he loved to are false or exaggerated. Yet the dis- scare them into fits by dilating with passionate historian will be able to luxuriant amplification on all the de- make very little deduction from the tails of what they were to suffer."6 sCompare "Probation as an Orthodox Com- 1917, 59L mon Law Practice in Massachusetts Prior to the 6 "Selections from Macaulay," Trevelyan (pp. Statutory System," Mas. Law Quart. for Aug., 181-2). TWO 'TNFAMOUS" JUDGES

The somewhat inaccurate details and not an impartial officer, but an arm of the impressionist picture which follow the Crown, combining in one man in this introduction have been questioned, varying degrees, the functions of police or corrected, by the studies of H. B. chief, prosecutor and judge, to carry Irving, John Pollock, Henry Mudiman on proceedings and impose penalties and others, but Judge Parry writing which seem to us to-day diabolical in one of the latest accounts of him, in his their nature, but which reflected the history of the "Bloody Assizes," pub- "mores," religious, social, and political, lished in 1929, thinks he deserved his of seventeenth century England. Jef- reputation, saying: freys and his associates were typical "A great deal has been done to de- products of conditions and not isolated odorize the memory of Jeffreys, and if fiendish historical mavericks. And most it were possible to write his biography without reference to the Bloody Assize of them were men of ability, especially and other criminal trials, in which his Jeffreys, for a man who died at the lust of cruelty overpowered his com- age of forty could not have had Such a mon sense, some kind of entertaining career, even in that era of corruption, inoffensive portrait might be made of a clever, self-seeking lawyer climbing without ability. Dean Pound, in an to the top of an exceedingly slimy pole. address8 to the bar of South Dakota "H. B. Irving's apologia for the life a few years ago, said of him: of Jeffreys is a classic. It will never be better done. But reading the essay "I well remember the shock when as carefully again, I feel that in smoothing a first-year student of law I came upon out the wrinkles of rascality he leaves a decision ot Jeffreys as Chancellor in his hero insipid and wanting in charac- a collection of authorities on the law ter. Jeffreys, to be true to life, must of Property. With my mind full of be as bloody as Macbeth without his Macaulay's invective, it seemed incred- infirmity of purpose. The attempt to ible that what such a man may have canonize him was bound to fail, and in decided could possibly deserve or have the end you cannot see the saint for any authority. Later when I had to the whitewash."7 teach the law of Trusts, and hence was led to study the old equity decisions, H. B. Irving's purpose, however, was I was astonished to find how well not to "canonize" Jeffreys, but to Jeffrey's decisions as Chancellor had reduce him to a more human villain maintained themselves. I was amazed of less abnormal proportions who, with to find how much more he counted in the reports which have made our law some of his predecessors and contem- than Somers, who is, next to William porary judicial colleagues, typified the HI, the hero of Maucaulay's history. beginning of the end of a brilliant, self- Still later I had to look into seven- teenth-century procedure in connection indulgent, brutal and corrupt political with the movement at the beginning of and social era which reeked with rev- the present century to overhaul the olution, perjury, prejudice, credulity procedure of American courts. Here, too, I noted with astonishment that more and fanaticism. In that era a judge than one procedural crudity of Matthew (with rare exceptions like Sir Matthew Hale, who is one of Campbell's heroes, Hale) was, generally, expected to be, did not obtain under Jeffreys. ...What-

7 "The Bloody Assize," Sir Edward Parry (p. 8 The American Attitude Toward the Trial 38). Judge. FRANK W. GRINNELL

ever else he may have been, the law the request of Charles II, by John books show clearly enough that Jeff- Dryden, the poet laureate, in "Absalom reys was a lawyer-indeed was no or- dinary lawyer.... and Achitophel." In Dryden's poem " . .. however, when Jeifreys was on Monmouth appears in the role of Ab- the bench, the memory of the Long Parliament and the Commonwealth was salom, Shaftsbury as Achitophel, and green. Men then living remembered Charles as David. Pollock says: how Whiggery and non-conformity had plunged the nation into civil war, had "The trials of the Popish Plot have executed a king, had suspended Magna remained the most celebrated in the annals of our judicial Charta, and had set history. Their re- up a military des- ports potism. When Jeffreys at the occupy three volumes of the State trial of Trials Baxter said that a Presbyterian was 'as and more than two thousand pages of crowded full of treason as an egg is of meat,' print. They contain shocking as that sounds to us now, he twenty-two trials for treason, three for said simply what every loyal adherent murder or attempt to murder, eleven for perjury, of the Restoration felt deeply to be the subornation of perjury, truth. libel, and other misdemeanours. They "Such is the background of Jeffreys. gave rise to proceedings in Parliament against two Lord He lived and judged in a period of tran- Chief Justices, and against two judges of sition from an old England to a new." the Court of King's Bench. They are a standing The background of the popular excit- monument to the most astounding out- ment and of the administration of the burst of successful perjury which has law of treason in England between 1670- occurred in modern times. It is due to their connection with these trials that 1688 appears also in John Pollock's posterity has branded the names of book on "The Popish Plot," which was three judges with lasting infamy, and published in 1903. that fourteen men executed as traitors* have earned the reputation of martyrs. Inspired, as he indicates in her pref- Not only are they filled and brimming ace, by the example and suggestions with the romance of life and death, but of Lord Acton, the eminent historian there lies locked within them the ker- and leading Catholic layman in late nel of that vast mass of treason, in- trigue, crime, and falsehood which sur- Victorian England, he endeavors to rounds and is known as the Popish Plot. steer his way between the lies of Titus Strangely enough, therefore, they have Oates and others. He produces long- been little studied and never under- stood. To appreciate properly the sig- buried information from papers in the nificance of the trials they must not be British Museum and elsewhere. He taken apart from their setting, and it is analyzes, and marshals, the facts as necessary before pasing judgment upon the to the three-hundred-year-old mystery events recorded in them to review the past which lies behind them and the story of Godfrey's murder the various causes which influenced their na- "plots" and the long contest between ture ... Whigs, Tories, Catholics, Anglicans, "Throughout the sixteenth and seven- Dissenters, Charles II., James II., the teenth centuries, from the time when Henry VIII broke the political power of Earl of Shaftsbury, and Louis XIV, Rome in England until the day when who were all mixed up together in the last revolution destroyed the in- the drama which was presented from fluence of the Jesuits in English poli- tics, the English state lived and devel- the Stuart point of view in 1681, at oped in an atmosphere charged with TWO 'INFAMOUS" JUDGES

the thunderstorm and resonant with the character of their office had been deter- note of war. War against foes within mined by the famous conflict between the land and without was the charac- Jarhes I and Lord Chief Justice Coke teristic condition of its existence. Be- which came to a head in 1616 and ended sides conflict with foreign powers, war in Coke's dismissal.... and rebellion, constant in Scotland and "The Lord Chief Justice, 'toughest of almost chronic in Ireland, may be men,' and too stubborn to yield, was counted, in eight reigns, three completed broken; but his brethren on the bench revolutions, ten armed rebellions, two gave way and offered assurances of great civil wars, and plots innumerable, their good conduct for the future and all emanating from within the English of their devotion to the royal will. nation alone. From beyond seas enemies James took the opportunity of the lec- schemed, almost without ceasing, to ture which he read to the judges in the overturn religion or government or both star chamber to compare their be- as they were established at home. There haviour in meddling with the preroga- is no need to wonder that the English tive of the crown to the atheism and government was a fighting machine. In blasphemy committed by good Chris- this light it was regarded by all men. tians in disputing the word of God. Where government is now looked on "Thus the judges became, according as a means of getting necessary busi- to Bacon's wish, 'lions, but yet lions ness done, of ameliorating conditions of under the throne,' and carried them- life, and directing the energy of the selves very circumspectly not to 'check country to the highest pitch of effi- or oppose any points of sovereignty.' ciency, two centuries and a half ago it Of their regularity in this course there was anxiously watched as an engine of can be no doubt, for if any lapsed into attack or defence of persons, property, forbidden ways, a judge he speedily and conscience.... ceased to be.... "To be 'counted to be a very per- "Theoretically, the court was 'of nicious man against the government' counsel for the prisoner' in matters of was sufficient to weigh against the law; and practically, as this conflicted credibility of a witness before the high- with the judges' duty to the king and est tribunal of the kingdom. their watch over his life, the prisoner "The only practicable instrument of was allowed to shift for himself." . . . government for the defense of the state Aside from the provision of tenure, was the judicial system of the country. during good behavior, of the judges in As there was no method known for the prevention of crime by an organised 1701 force of police, and no deterrent exerted "the new system has emerged from the on would-be criminals by the existence old by a procession of unconsidered of a standing body of soldiery, the only changes, at different times, of varying possible weapon to be used against importance, the results of which have them was to be found in the law courts. come to be so universally known and It followed that the judges and justices approved, that to the backward glance of the peace, not only fulfilled the judi- they seem to be, not the outcome of long cial and magisterial functions which are experience, but inextricable parts of a known to modern times, but consti- system which has existed from all time. tuted as well an active arm of the The essential change has been one of administration.... conduct less than of opinion, and is to "The justices were able administra- be found rather in an altered point of tors, dealers of small mercy to the evil- view than in any variation of prac- doer, guardians of the peace in the name tical arrangements. .. ." of which their commissions ran; but The vehement partisanship of Jeff- the judges took a place in the foremost rank as great officers of state. The reys created a reputation for a trial FRANK W. GRINNELL

judge as a partisan monster which, as "There is no time when it is so im- Pound said, was brought to this country portant that justice be administered ju- by Monmouth's contemporaries just at dicially, and when it is so unlikely to be administered judicially, as in times the time that American courts were of political and economic excitement in beginning to develop. an era of transition. The excessive zeal of the strong conservative judge in As the manners and personalities of such an era is one of the most certain strong men on the bench in the trials agencies of bringing about radical of persons, most of whom were guilty changes." according to the law as it then was, in BIBLIOGRAPHY. a period of brutality, shocked and ob- scured the popular ideas of justice in Lord Cockburn, "Memorials of his England, so we had their prototypes, to Time" some extent, in America, not only in William Roughead, "The Riddle of the some colonial judges, but after the Ruthvens and Other Studies," "The Revolution. The behavior of the stout Real Braxfield" old patriot, Samuel Chase, of Maryland, William Roughead, "Glengarry's Way and other Federal judges who presided and Other Studies," "The Bicente- at trials under the "alien and sedition" nary of Lord Braxfield" acts, contributed to the Jeffersonian Stevenson, "Some Portraits by Rae- reaction. Pound draws the lesson from burn" "the aftermath of these strong judges." Stevenson, "The "... in the lax criminal law of the Weir of Hermiston" nineteenth century, which has given us Lawrence, "Judge Jeffries" much trouble in the present genera- Parry, "The Bloody Assizes" tion, in the elective judiciary, and loss of judicial independence, in legislative H. B. Irving, "Life of Judge Jeffreys" turning of trial judges into moderators, Muddiman, "The Bloody Assizes" and in codes of procedure which bind the trial judges hard and fast. Macaulay, "History of England" "There is a lesson for us here when Lord Campbell, "Lives of the Lord we are inclined to applaud judicial and Chancellors" magisterial overriding of individual claims, to set aside legal and constitu- John Dryden, "Absalom and Achito- tional guarantees, and to wink at inva- phel" sions of private rights in the supposed interest of law and order. The reaction John Pollock, "The Popish Plot" from these things may presently undo Beloc, "James II." more than the suppressed disturbers possibly could have shaken or thrown Beresford, "Old Rowley" down. Conan Doyle's "Micah Clark"