The numbers and violence of the mob had greatly increased from the delay in examining the culprit, and they loudly threatened to take the law into their own hand. Some were for examining him before an alderman, and leading him out by a back way for that purpose; but he himself showed most prudence by advising that, without any previous examination, he should be committed to the Tower for safe custody, and that two other regiments of the train-bands should be ordered up to conduct him thither. In the confusion, he offered to draw the warrant for his own commitment. This course was followed, but was by no means free from danger, the mob defying the matchlocks and pikes of the soldiers, and pressing round the coach in which the noble prisoner was carried, still flourishing the whips and halters, and expressing their determined resolution to execute summary justice upon him for the many murders he had committed. Seeing the imminent danger to which he was exposed, and possibly conscience struckwhen he thought he was so near his end, he lost all sense of dignity and all presence of mind. He held up his imploring hands, sometimes on one side of the coach, and sometimes on the other, exclaiming, “For the Lord’s sake, keep them off! For the Lord’s sake, keep them off!” Oldmixon, who was an eye-witness of this procession, and makes loud professions of compassion for malefactors, declares that he saw these agonizing alarms without pity.
The difficulty was greatest in passing the open space on Tower Hill. But at length the carriage passed the drawbridge, and the portcullis descended. Within all was still. Jeffreys was courteously received by Lord Lucas, recently appointed lieutenant, and in a gloomy apartment, which he never more left, he reflected in solitude on the procession which had just terminated, so different from those to which he had been accustomed for some years on the first day of each returning term, when, attended by the judges and all the grandees of the law, he had moved in state to Westminster Hall, the envy and admiration of all beholders.
A regular warrant for his commitment was the same night made out by the lords of the Council, and the next day a deputation from their body, consisting of Lords North, Grey, Chandos and Ossulston, attended to examine him at the Tower. Four questions were asked him. 1. “What he had done with the great seal of England.” He answered “that he had delivered it to the king on the Saturday before at Mr. Cheffnel’s, no person being present, and that he had not seen it since.” He was next asked, 2. “Whether he had sealed all the writs for the Parliament, and what he had done with them.” “To the best of his remembrance,” he said, “the writs were all sealed and delivered to the king,” (suppressingthat he had seen the king throw a great many of them in the fire.) 3. “Had he sealed the several patents for the then ensuing year?” He declared “that he had sealed several patents for the new sheriffs, but that he could not charge his memory with the particulars.” Lastly, he was asked “whether he had a license to go out of the kingdom.” And to this he replied, “that he had several licenses to go beyond sea, which were all delivered to Sir John Friend.” He subscribed these answers with an affirmation that “they were true upon his honor,” and the lords withdrew.
But no sympathy did he meet with from any quarter, and he was now reproachfully spoken of even by the king. The news of the outbreak against him coming speedily to Feversham, the fugitive monarch, who then meditated an attempt to remount his throne, thought that his chancellor might possibly be accepted by the nation as a scape-goat, and laid upon him the great errors of his reign. It happened, strangely enough, that the inn to which James had been carried when captured off Sheerness, was kept by a man on whom Jeffreys, for some supposed contempt of court, had imposed a very heavy fine, which had not yet been levied. Complaining of this arbitrary act to his royal guest,—who had admitted him to his presence, and had asked him, in royal fashion, “his name, his age, and his history,”—James desired him to draw a discharge as ample as he chose; and, establishing a precedent, which has been often followed since, for writing in a seemingly private and confidential document what is intended afterwards to be communicated to the public, he subjoined to his signature these remarkable words, which were immediately proclaimed in Feversham and transmitted to London: “I amsensible that my lord chancellor hath been a very ill man, and hath done very ill things.”
Jeffreys was assailed by the press in a manner which showed how his cruelties had brutalized the public mind. A poetical letter, addressed to him, advising him to cut his own throat, thus concluded: “I am your lordship’s obedient servant in any thing of this nature. From the little house over against Tyburn, where the people are almost dead with expectation of you.”
This was followed by “a letter from hell from Lord Ch——r Jeffreys to L—— C—— B—— W——d.” His “confession,” hawked about the streets, contained an exaggerated statement of all the bad measures of the latter part of the preceding and of the present reign. Then came his “last will and testament,” commencing, “In the name of Ambition, the only god of our setting and worshipping, together with Cruelty, Perjury, Pride, Insolence, &c., I, George Jeffreys, being in sound and perfect memory, of high commissions,quo warrantos, dispensations, pillorizations, floggations, gibitations, barbarity, butchery, &c., do make my last will,” &c. Here is the concluding legacy: “Item, I order an ell and a half of fine cambric to be cut into handkerchiefs for drying up all the wet eyes at my funeral; together with half a pint of burnt claret for all the mourners in the kingdom.”
When he had been some weeks in confinement, he received a small barrel, marked “Colchester oysters,” of which, ever since his arrival in London when a boy, he had been particularly fond. Seeing it, he exclaimed—“Well, I have some friends left still;” but on opening it, the gift was—a halter!
An actual serious petition was received by the lords of thecouncil of England from “the widows and fatherless children in the west,” beginning, “We, to the number of a thousand and more widows and fatherless children of the counties of Dorset, Somerset, and Devon; our dear husbands and tender fathers having been so tyrannously butchered and some transported; our estates sold from us, and our inheritance cut off, by the severe and brutish sentence of George Lord Jeffreys, now we understand in the Tower of London, a prisoner,” &c. After enumerating some of his atrocities, and particularly dwelling upon his indecent speech (which I may not copy) to a young lady who asked the life of her lover, convicted before him, the petitioners thus concluded:—“These, with many hundred more tyrannical acts, are ready to be made appear in the said counties by honest and credible persons, and therefore your petitioners desire that the said George Jeffreys, late lord chancellor, the vilest of men, may be brought down to the counties aforesaid, where we the good women of the west shall be glad to see him, and give him another manner of welcome than he had there three years since.”
Meanwhile, the great seal, theclavis regni, the emblem of sovereign sway, which had been thrown into the Thames that it might never reach the Prince of Orange, was found in the net of a fisherman near Lambeth, and was delivered by him to the lords of the council, who were resolved to place it in the hands of the founder of the new dynasty; and James, after revisiting the capital and enjoying a fleeting moment of popularity, had finally bid adieu to England, and was enjoying the munificent hospitality of Louis at St. Germaine’s.
The provisional government, in deference to the public voice, issued an order for the more rigorous confinement of the ex-chancellor in the Tower, and intimated a resolutionthat he should speedily be brought to trial for his misdeeds; but, amidst the stirring events which rapidly followed, he was allowed quietly to languish out the remainder of his miserable existence. While the elections were proceeding for the Convention Parliament—while the two houses were struggling respecting the “abdication” or “desertion” of the throne—while men were occupied with discussing the “declaration of rights”—while preparations were making for the coronation of the new sovereigns—while curiosity was keenly alive in watching their demeanor, and while alarms were spread by the adherence of Ireland to the exiled king—the national indignation, which at first burst forth so violently against the crimes of Jeffreys, almost entirely subsided, and little desire was evinced to see him punished as he deserved.
However, considerable sensation was excited by the news that he was no more. He breathed his last in the Tower of London, on the 19th of April, 1689, at thirty-five minutes past four in the morning. Those who take a vague impression of events, without attention to dates, may suppose, from the crowded vicissitudes of his career, that he must have passed his grand climacteric, but he was still only in the forty-first year of his age.
On the meeting of the Convention Parliament, attempts were made to attaint the late Chancellor Jeffreys, to prevent his heirs from sitting in Parliament, and to charge his estates with compensation to those whom he had injured; but they all failed, and no mark of public censure was set upon his memory beyond excepting him, with some other judges, from the act of indemnity passed at the commencement of the new reign.
We have no very distinct account of him in domestic life.Having lost his first wife, whom he had espoused so generously, within three months from her death he again entered the married state. The object of his choice was the widow of a Montgomeryshire gentleman, and daughter of Sir Thomas Bludworth, who had been lord mayor of London, and for many years one of the city representatives. I am sorry to say there was much scandal about the second Lady Jeffreys, and she presented him prematurely with a full-grown child. It is related that he was once disagreeably reminded of this mistake: when cross-examining a flippant female, he said to her, “Madam, you are very quick in your answers.” “Quick as I am, Sir George,” cried she, “I was not so quick as your lady.” Even after the marriage she is still said to have encouraged Sir John Trevor, M. R., and other lovers, while her husband was indulging in his cups.
He had children by both his wives; but of these only one son grew up to manhood, and survived him. This was John, the second Lord Jeffreys, who has acquired celebrity only by having rivalled his father in the power of drinking, and for having, when in a state of intoxication, interrupted the funeral of Dryden, the poet. He was married, as we have seen, to the daughter of the Earl of Pembroke, but dying in 1703, without male issue, the title of Jeffreys happily became extinct. He soon dissipated large estates, which his father, by such unjustifiable means, had acquired in Shropshire, Buckinghamshire, and Leicestershire.
In his person Jeffreys was rather above the middle stature, his complexion (before it was bloated by intemperance) inclining to fair, and he was of a comely appearance. There was great animation in his eye, with a twinkle which might breed a suspicion of insincerity and lurking malice. His brow wascommanding, and he managed it with wonderful effect, whether he wished to terrify or to conciliate. There are many portraits of him, all, from his marked features, bearing a great resemblance to each other, and, it may be presumed, to the original.
“He had a set of banterers for the most part near him, as in old time great men kept fools to make them merry. And these fellows, abusing one another and their betters, were a regale to him.” But there can be no doubt that he circulated in good society. He was not only much at court, but he exchanged visits with the nobility and persons of distinction in different walks of life. In the social circle, being entirely free from hypocrisy and affectation, from haughtiness and ill-nature, laughing at principle, courting a reputation for profligacy, talking with the utmost freedom of all parties and all men—he disarmed the censure of the world, and, by the fascination of his manners, while he was present, he threw an oblivion over his vices and his crimes.
On one occasion, dining in the city with Alderman Duncomb, the lord treasurer and other great courtiers being of the party, they worked themselves up to such a pitch of loyalty by bumpers to “confusion to the Whigs,” that they all stripped to their shirts, and were about to get upon a signpost to drink the king’s health, when they were accidentally diverted from their purpose, and the lord chancellor escaped the fate which befell Sir Charles Sedley, of being indicted for indecently exposing his person in the public streets. But this frolic brought upon him a violent fit of the stone, which nearly cost him his life.
As a civil judge he was by no means without high qualifications, and in the absence of any motive to do wrong, hewas willing to do right. He had a very quick perception, a vigorous and logical understanding, and an impressive eloquence.
When quite sober, he was particularly good as a Nisi Prius judge. His summing up, in what is called “the Lady Ivy’s case”—an ejectment between her and the dean and chapter of St. Paul’s to recover a large estate at Shadwell—is most masterly. The evidence was exceedingly complicated, and he gives a beautiful sketch of the whole, both documentary and parol; and, without taking the case from the jury, he makes some admirable observations on certain deeds produced by the Lady Ivy, which led to the conclusion that they were forged, and to a verdict for the dean and chapter.[150]
Considering the systematic form which equity jurisprudence had assumed under his two immediate predecessors, Jeffreys must have been very poorly furnished for presiding in chancery. He had practised little before these judges, and none of their decisions were yet in print; so that if he had been so inclined, he had not the opportunity to make himself familiar with the established practice and doctrines of the court.
Although he must often have betrayed his ignorance, yet with his characteristic boldness and energy he contrived to get through the business without any signal disgrace, and among all the invectives, satires, and lampoons by which his memory is blackened, I find little said against his decrees. He did not promulgate any body of new orders according to recent custom; but, while he held the great seal, he issued separate orders from time to time, some of which were very useful.He first put an end to a very oppressive practice, by which a plaintiff, having filed a frivolous and vexatious bill, might dismiss it on paying merely twenty shillings costs, and he directed that the defendant should be allowed all the costs he had incurred, to be properly ascertained by an officer of the court. He then checked the abuse of staying actions at law for the examination of witnesses abroad, by requiring, before a commission to examine them issued, an affidavit specifying the names of the witnesses, and the facts they were expected to prove. By subsequent orders which he framed, vexatious applications for re-hearings were guarded against, and an attempt was made to get rid of what has ever been the opprobrium of the court—controversies about settling the minutes of a decree after it has been pronounced.
I have discovered one benevolent opinion of this cruel judge, and strange to say, it is at variance with that of the humane magistrates who have adorned Westminster Hall in the nineteenth century. “The prisoner’s convict bill” was condemned and opposed by almost all the judges in the reign of William IV., yet even Jeffreys was struck with the injustice and inequality of the law, which, allowing the accused to defend himself by counsel “for a two-penny trespass,” refuses that aid “where life, estate, honor, and all are concerned,” and lamented its existence, while he declared himself bound to adhere to it.[151]The venerable sages who apprehended such multiplied evils from altering the practice must have been greatly relieved by finding that their objections have proved as unfounded as those which were urged against the abolition of “peine forte et dure;” and the alarming innovation, solong resisted, of allowing witnesses for the prisoner to be examined under the sanction of an oath.
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, although he appears to have been a man of high talents, of singularly agreeable manners, and entirely free from hypocrisy, 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.
ROBERT WRIGHT.
I now come to the last of the profligate chief justices of England; for since the Revolution they have all been men of decent character, and most of them have adorned the seat of justice by their talents and acquirements, as well as by their virtues. Sir Robert Wright, if excelled by some of his predecessors in bold crimes, yields to none in ignorance of his profession, and beats them all in the fraudulent and sordid vices.
He was the son of a respectable gentleman who lived near Thetford, in Suffolk, and was the representative of an ancient family, long seated at Kelverstone, in Norfolk; he enjoyed the opportunity of receiving a good education at Thetford Free Grammar School, and at the University of Cambridge; and he had the advantage of a very handsome person and agreeable manner. But he was by nature volatile, obtuse, intensely selfish, with hardly a particle of shame, and quite destitute of the faculty of distinguishing what was base from what was honorable. Without any maternal spoiling, or the contamination of bad company, he showed the worst faults of childhood, and these ripened, while he was still in early youth, into habits of gaming, drinking, and every sort of debauchery. There was a hope of his reformation when, being still under age, he captivated the affections of one of the daughters of Dr. Wren, Bishop of Ely, and was married to her. But he continued his licentious course oflife, and, having wasted her fortune, he treated her with cruelty.
He was supposed to study the law at an Inn of Court, but when he was called to the bar he had not imbibed even the first rudiments of his profession. Nevertheless, taking to the Norfolk Circuit, the extensive influence of his father-in-law, which was exercised unscrupulously in his favor, got him briefs, and for several years he had more business than North, (afterwards Lord Keeper Guilford,) a very industrious lawyer, who joined the circuit at the same time. “But withal,” says Roger, the inimitable biographer, “he was so poor a lawyer that he could not give an opinion upon a written case, but used to bring such cases as came to him to his friend, Mr. North, and he wrote the opinion on a paper, and the lawyer copied it and signed under the case as if it had been his own. It run so low with him, that when North was at London, he sent up his cases to him, and had opinions returned by the post; and in the mean time he put off his clients upon pretence of taking more serious consideration.”
At last the attorneys found him out so completely that they entirely deserted him, and he was obliged to give up practice. By family interest he obtained the lucrative sinecure of “treasurer to the chest at Chatham,” but by his voluptuous and reckless course of life he got deeper and deeper in debt, and he mortgaged his estate to Mr. North for fifteen hundred pounds, the full amount of its value. From some inadvertence, the title deeds were allowed to remain in Wright’s hands, and being immediately again in want, he applied to Sir Walter Plummer to lend him five hundred pounds on mortgage, offering the mortgaged estate as a security, and asserting that this would be the first charge upon it. The wary SirWalter thought he would make himself doubly safe by requiring an affidavit that the estate was clear from all incumbrances. This affidavit Wright swore without any hesitation, and he then received the five hundred pounds. But the money being spent, and the fraud being detected, he was in the greatest danger of being sent to jail for debt, and also of being indicted for swindling and perjury.
He had only one resource, and this proved available. Being a clever mimic, he had been introduced into the circle of parasites and buffoons who surrounded Jeffreys, at this time chief justice of the King’s Bench, and used to make sport for him and his companions in their drunken orgies by taking off the other judges, as well as the most eminent counsel. One day, being asked why he seemed to be melancholy, he took the opportunity of laying open his destitute condition to his patron, who said to him, “As you seem to be unfit for the bar, or any other honest calling, I see nothing for it but that you should become a judge yourself.” Wright naturally supposed that this was a piece of wicked pleasantry, and when Jeffreys had declared that he was never more serious in his life, asked how it could be brought about, for he not only felt himself incompetent for such an office, but he had no interest, and, still more, it so happened, unfortunately, that the Lord Keeper Guilford, who made the judges, was fully aware of the unaccountable lapse of memory into which he had fallen when he swore the affidavit for Sir Walter Plummer, that his estate was clear from all incumbrances, the lord keeper himself being the first mortgagee.Jeffreys, C. J.—“Never despair, my boy; leave all that to me.”
We know nothing more of the intrigue with certainty, till the following dialogue took place in the royal closet. We canonly conjecture that in the meanwhile Jeffreys, who was then much cherished at court, and was impatient to supersede Guilford entirely, had urgently pressed the king that Wright might be elevated to the bench as a devoted friend of the prerogative, and that, as the lord keeper had a prejudice against him, his majesty ought to take the appointment into his own hands. But we certainly know that, a vacancy occurring in the Court of Exchequer, the lord keeper had an audience of his majesty to take his pleasure on the appointment of a new baron, and that he named a gentleman at the bar, in great practice and of good character, as the fittest person to be appointed, thinking that Charles would nod assent with his usual easy indifference, when, to his utter amazement, he was thus interrogated: “My lord, what think you of Mr. Wright? Why may not he be the man?”Lord Keeper.—“Because, sir, I know him too well, and he is the most unfit person in England to be made a judge.”King.—“Then it must not be.” Upon this, the lord keeper withdrew, without having received any other notification of the king’s pleasure; and the office remained vacant.
Again there is a chasm in the intrigue, and we are driven to guess that Jeffreys had renewed his solicitation, had treated the objections started to Wright as ridiculous, and had advised the cashiering of the lord keeper if he should prove obstinate. The next time that the lord keeper was in the royal presence, the king, opening the subject of his own accord, observed, “Good my lord, why may not Wright be a judge? He is strongly recommended to me; but I would have a due respect paid to you, and I would not make him without your concurrence. Is it impossible, my lord?”Lord Keeper.—“Sir, the making of a judge is your majesty’s choice, and not mypleasure. I am bound to put the seal as I am commanded, whatever the person may be. It is for your majesty to determine, and me, your servant, to obey. But I must do my duty by informing your majesty of the truth respecting this man, whom I personally know to be a dunce, and no lawyer; who is not worth a groat, having spent his estate by debauched living; who is without honesty, having been guilty of wilful perjury to gain the borrowing of a sum of money. And now, sir, I have done my duty to your majesty, and am ready to obey your majesty’s commands in case it be your pleasure that this man be a judge.” The king thanked the lord keeper, without saying more, but next day there came a warrant under the sign manual for creating the king’s “trusty and well-beloved Robert Wright” a baron of his Exchequer, and orders were given for making out the patent in due form; and the detected swindler, knighted, and clothed in ermine, took his place among the twelve judges of England.
People were exceedingly shocked when they saw the seat of justice so disgraced; but this might be what Jeffreys intended; and one of his first acts, when he himself obtained the great seal, was to promote hisprotégéfrom being a baron of the Exchequer to be a judge of the Court of King’s Bench.
Wright continued to do many things which caused great scandal, and, therefore, was dearer than ever to his patron, who would have discarded him if he had shown any symptoms of reformation. He accompanied General Jeffreys asaide de campin the famous “campaign in the west;” in other words, he was joined in commission with him as a judge in the “bloody assize,” and, sitting on the bench with him at the trial of Lady Lisle and the others which followed, concurredin all his atrocities. He came in for very little of the bribery; Jeffreys, who claimed the lion’s share, tossing him by way of encouragement one solitary pardon, for which a small sum only was expected.
But on the death of Sir Henry Beddingfield he was made chief justice of the Common Pleas; and very soon afterwards, the unexpected quarrel breaking out between Sir Edward Herbert and the government about martial law and the punishment of deserters,[152]the object being to find some one whoby no possibility could go against the government, or hesitate about doing any thing required of him, however base or however bloody, Wright was selected as chief justice of the king’s bench. Unluckily we have no account of the speeches made at any of his judicial installations, so that we do not know in what terms his learning and purity of conduct were praised, or what were the promises which he gave of impartiality and of rigorous adherence to the laws of the realm.
On the very day on which he took his seat on the bench he gave good earnest of his servile spirit. The attorney general renewed his motion for an order to execute at Plymouth the deserter who had been capitally convicted at Reading for deserting his colors. The new chief justice, without entering into reasons, or explaining how he came to differ from the opinion so strongly expressed by his predecessor, merely said, “Be it so!” The puisnies now nodded assent, and theprisoner was illegally executed at Plymouth under the order so pronounced.
Confidence was entirely lost in the administration of justice in Westminster Hall, for all the three common law courts were at last filled by incompetent and corrupt judges. Pettifogging actions only were brought in them, and men settled their disputes by arbitration, or by taking the opinion of counsel. The reports during the whole reign of James II. hardly show a single question of importance settled by judicial decision. Thus, having no distinct means of appreciating Chief Justice Wright’s demerits as a judge in private causes, we must at once follow him in his devious course as a political judge.
The first occasion on which, after his installation, he drew upon himself the eyes of the public was when he was sent down to Magdalene College, Oxford, for the purpose of turning it into a Popish seminary. Upon a vacancy in the office of president, the fellows, in the exercise of their undoubted right, had elected the celebrated Dr. Hough, who had been duly admitted into the office; and the preliminary step to be taken was to annul the election, for the purpose of making way for another candidate, named by the king. There were associated with Wright, in this commission, Cartwright, Bishop of Chester, who was ready to be reconciled to Rome in the hope of higher preferment, and Sir Thomas Jenner, a baron of the Exchequer, a zealous follower in the footsteps of the chief justice of the King’s Bench. Nothing could equal the infamy of their object except the insolence of their behavior in trying to accomplish it. They entered Oxford escorted by three troops of cavalry with drawn swords, and, having taken their seats with great parade in the hall of the college,summoned the fellows to attend them. These reverend and gallant divines appeared, headed by their new president, who defended his rights with skill, temper and resolution; steadily maintaining that, by the laws of England, he had a freehold in his office, and in the house and revenues annexed to it. Being asked whether he submitted to this royal visitation, he answered:—
“My lords, I do declare here, in the name of myself and the fellows, that we submit to the visitation as far as it is consistent with the laws of the land and the statutes of the college, and no further.”Wright, C. J.—“You cannot imagine that we act contrary to the laws of the land; and as to the statutes, the king has dispensed with them. Do you think we come here to break the laws?”Hough.—“It does not become me, my lords, to say so; but I will be plain with your lordships. I find that your commission gives you authority to alter the statutes. Now, I have sworn to uphold and obey them; I must admit no alteration of them, and by the grace of God never will.” He was asked whether one of the statutes of the founder did not require mass to be said in the college chapel; but he answered, “not only was it unlawful, but it had been repealed by the act of Parliament requiring the use of the Book of Common Prayer.” However, sentence was given that the election of Hough was void, and that he be deprived of his office of president.Hough.—“I do hereby protest against all your proceedings, all you have done, or shall hereafter do, in prejudice of me and my right, and I appeal to my sovereign lord the king in his courts of justice.” “Upon which (says a contemporary account) the strangers and young scholars in the hall gave ahum, which so much incensed their lordships that the lord chief justice was not tobe pacified, but, charging it upon the president, bound him in a bond of one thousand pounds, and security to the like value, to make his appearance at the King’s Bench bar on the 12th of November; and, taking occasion to pun upon the president’s name, said to him, “Sir, you must not think tohuffus.” He then ordered the door of the president’s house to be broken open by a blacksmith; and a fellow observing, “I am informed that the proper officer to gain possession of a freehold is the sheriff with aposse comitatus,” Wright said, “I pray who is the best lawyer, you or I? Your Oxford law is no better than your Oxford divinity. If you have a mind to aposse comitatus, you may have one soon enough.”
Having ejected Hough, he issued a mandate for expelling all the contumacious fellows, and insured the expulsion of James from his throne, when the commissioners returned in triumph to London.
Wright was likewise a member of the Ecclesiastical Court of High Commission, of which Jeffreys was president, and he strenuously joined in all the judgments of that illegal and arbitrary tribunal, which, with anon obstante, had been revived in the very teeth of an existing act of Parliament. He treated with ridicule the scruples of Sancroft, the Archbishop of Canterbury, and others who refused to sit upon it, and he urged the infliction of severe punishment on all who denied its jurisdiction.
Although he was not a member of the Cabinet, he usually heard from the chancellor the measures which had been resolved upon there, and he was ever a willing tool in carrying them into effect.
When the clergy were insulted, and the whole country was thrown into a flame, by the fatal order in Council for readingthe “Declaration of Indulgence” in all churches and chapels on two successive Sundays, he contrived an opportunity of declaring from the bench his opinion that it was legal and obligatory. Hearing that the London clergy were almost unanimously resolved to disobey it, he sent a peremptory command to the priest who officiated in the chapel of Serjeants’ Inn to read the declaration with a loud voice; and on the famous Sunday, the 20th of May, 1688, he attended in person, to give weight to the solemnity. However, he was greatly disappointed and enraged to find the service concluded without any thing being uttered beyond what the rubric prescribes. He then indecently, in the hearing of the congregation, abused the priest as disloyal, seditious, and irreligious, for contemning the authority of the head of the church. The clerk ingeniously came forth to the rescue of his superior, and took all the blame upon himself by saying that “he had forgot to bring a copy,” and the chief justice, knowing that he had no remedy, was forced to content himself with this excuse.[153]
The seven bishops being committed to the Tower, and prosecuted for a conspiracy to defame the king and to overturn his authority, because they had presented a petition to him praying that they might not be forced to violate their consciences and to break the law, Wright, the lowest wretch that had ever appeared on the bench in England, was to presideat the most important state trial recorded in our annals. The reliance placed upon his abject subserviency no doubt operated strongly in betraying the government into this insane project of treating as common malefactors the venerable fathers of the Protestant church, now regarded by the whole nation with affectionate reverence. The consideration was entirely overlooked by the courtiers, that, from the notorious baseness of his character, his excessive zeal might be revolting to the jury, and might produce an acquittal. It is supposed that a discreet friend of the government had given him a caution to bridle his impetuosity against the accused, as the surest way of succeeding against them; for, during the whole proceeding, he was less arrogant than could have been expected, and it is much more probable that his forbearance arose from obedience to those whom he wished to please, than from any reverence for the sacred character of the defendants or any lurking respect for the interests of justice.
They were twice placed at the bar before him—first when they were brought up by the lieutenant of the Tower to be arraigned, and afterwards when a jury was empannelled for their trial. On the former occasion the questions were whether they were lawfully in custody, and were then bound to plead. The chief justice checked the opposing counsel with an air of impartiality, saying, “Look you, gentlemen, do not fall upon one another, but keep to the matter in hand.” And, before deciding for the crown, he said, “I confess it is a case of great weight, and the persons concerned are of great honor and value. I would be as willing as any body to testify my respects and regards to my lords the bishops, if I could see any thing in their objections worth considering. For here is the question, whether the fact charged in the warrantof commitment be such a misdemeanor as is a breach of the peace. I cannot but think it is such a misdemeanor as would have required sureties of the peace, and if sureties were not given, a commitment might follow.” He was guilty of gross injustice in refusing leave to put in a plea in abatement; but he thus mildly gave judgment: “We have inquired whether we may reject a plea, and, truly, I am satisfied that we may if the plea is frivolous; and this plea containing no more than has been overruled already, my lords the bishops must now plead guilty or not guilty.”
When the trial actually came on, he betrayed a partiality for which, in our times, a judge would be impeached; but, compared with himself, so decorous was he, that he was supposed to be overawed by the august audience in whose presence he sat. It was observed that he often cast a side glance towards the thick rows of earls and barons by whom he was watched, and who, in the next Parliament, might be his judges. One bystander remarked that “he looked as if all the peers present had halters in their pockets.”
The counsel for the crown having, in the first instance, failed to prove a publication of the supposed libel in the county of Middlesex, and only called upon the court to suppose or presume it, the chief justice said: “I cannot suppose it; I cannot presume any thing. I will ask my brothers their opinion, but I must deal truly with you; I think there is not evidence against my lords the bishops. It would be a strange thing if we should go and presume that these lords did it when there is no sort of evidence to prove that they did it. We must proceed according to forms and methods of law. People may think what they will of me, but I alwaysdeclare my mind according to my conscience.” He was actually directing the jury to acquit, and the verdict of not guilty would have been instantly pronounced, when Finch, one of the counsel for the bishops, most indiscreetly said they had evidence on their side to produce. The young gentleman was pulled down by his leaders, who desired the chief justice to proceed. And now his lordship showed the cloven foot, for he exclaimed, “No, no, I will hear Mr. Finch. Go on; my lords the bishops shall not say of me that I would not hear their counsel. I have been already told of being counsel against them, and they shall never say I would not hear counsel for them. Such a learned man as Mr. Finch must have something material to offer. He shall not be refused to be heard by me, I assure you. Why don’t you go on, Mr. Finch?”
At this critical moment it was announced that the Earl of Sunderland, the president of the council,—who was present in the royal closet when the bishops presented their petition to the king at Whitehall,—was at hand, and would prove a publication in Middlesex. The chief justice then said, with affected calmness, but with real exultation, “Well, you see what comes of the interruption. I cannot help it; it is your own fault.” There being a pause while they waited for the arrival of the Earl of Sunderland, the chief justice, addressing Sir Bartholomew Shower, one of the counsel for the crown, whom he had stopped at an early stage of the trial, and against whom he had some private spite, observed with great insolence, “Sir Bartholomew, now we have time to hear your speech, if you will. Let us have it.”
At last the witness arrived, and, proving clearly a publication in Middlesex, the case was again launched, and, afterhearing counsel on the merits, it was to be left to the determination of the jury.
The chief justice, thinking to carry it all his own way, was terribly baffled, not only by the sympathy of the audience with the bishops, which evidently made an impression on the jury, but by the unexpected honesty of one of his brother judges, Mr. Justice John Powell, who had been a quiet man, unconnected with politics, and, being a profound lawyer, had been appointed to keep the Court of King’s Bench from falling into universal contempt. Sir Robert Sawyer beginning to comment upon a part of the declaration which the bishops objected to, “that from henceforth the execution of all laws against nonconformity to the religion established, or the exercise of any other religion, should be suspended,”Wright, C. J., exclaimed, “I must not suffer this; they intend to dispute the king’s power of suspending laws.”Powell, J.—“My lord, they must necessarily fall upon the point; for, if the king hath no such power, (as clearly he hath not, in my judgment,) the natural consequence will be that this petition is no diminution of the king’s regal power, and so not seditious or libellous.”Wright, C. J.—“Brother, I know you are full of that doctrine; but, however, my lords the bishops shall have no occasion to say that I deny to hear their counsel. Brother, you shall have your will for once; I will hear them; let them talk till they are weary.”Powell, J.—“I desire no greater liberty to be granted them than what, in justice, the court ought to grant; that is, to hear them in defence of their clients.”
As the speeches for the defendants proceeded, and were producing a great effect upon all who heard them, the solicitor general made a very irregular remark, accompanied by afictitious yawn—“We shall be here till midnight.” The chief justice, instead of reprimanding him, chimed in with the impertinence, saying, “They have no mind to have an end of the cause, for they have kept it up three hours longer than they need to have done.”Serjeant Pemberton.—“My lord, this case does require a great deal of patience.”Wright, C. J.—“It does so, brother, and the court has had a great deal of patience; but we must not sit here only to hear speeches.” In trying to put down another counsel, who was making way with the jury, he observed, “If you say anything more, pray let me advise you one thing—don’t say the same thing over and over again; for, after so much time spent, it is irksome to all company, as well as to me.”
When it came to the reply of Williams, the renegade solicitor general, who in his day had been “a Whig and something more,” he laid down doctrines which called forth the reprobation of Judge Powell, and even shocked the chief justice himself, for he denied that any petition could lawfully be presented to the king except by the lords and commons in Parliament assembled.Powell, J.—“This is strange doctrine. Shall not the subject have liberty to petition the king but in Parliament? If that be law, the subject is in a miserable case.”Wright, C. J.—“Brother, let him go on; we will hear him out, though I approve not of his position.” The unabashed Williams continued, “The lords may address the king in Parliament, and the commons may do it; but therefore that the bishops may do it out of Parliament, does not follow. I’ll tell you what they should have done: if they were commanded to do anything against their consciences, they should have acquiesced till the meeting of theParliament.”[154](Here, says the reporter, the people in court hissed.)Attorney General.—“This is very fine indeed: I hope the court and the jury will take notice of this carriage.”Wright, C. J.—“Mr. Solicitor, I am of opinion that the bishops might petition the king; but this is not the right way. If they may petition, yet they ought to have done it after another manner; for if they may, in this reflective way, petition the king, I am sure it will make the government very precarious.”Powell, J.—“Mr. Solicitor, it would have been too late to stay for a Parliament, for the act they conceived to be illegal was to be done forthwith; and if they had petitioned and not shown the reason why they could not obey, it would have have been looked upon as a piece of sullenness, and for that they would have been as much blamed on the other side.”
The chief justice, to put on a semblance of impartiality, attempted to stop Sir Bartholomew Shower, who wished to follow in support of the prosecution, and, being a very absurd man, was likely to do more harm than good.Wright, C. J.—“I hope we shall have done by and by.”Sir B. S.—“If your lordship don’t think fit, I can sit down.”Wright, C. J.—“No! no! Go on, Sir Bartholomew—you’ll say I have spoiled a good speech.”Sir B. S.—“I have no good speech to make, my lord; I have but a very few words to say.”Wright, C. J.—“Well, go on, sir; go on.”
In summing up to the jury, the chief justice said:—
“This is a case of very great concern to the king and the government on the one side, and to my lords the bishops on the other. It is an information against his grace my lord ofCanterbury and the other six noble lords, for composing and publishing a seditious libel. At first we were all of opinion that there was no sufficient evidence of publication in the county of Middlesex, and I was going to have directed you to find my lords the bishops not guilty; but it happened that, being interrupted in my direction by an honest, worthy, learned gentleman, the king’s counsel took the advantage, and, informing the court that they had further evidence, we waited till the lord president came, who told us how the petition was presented by the right reverend defendants to the king at Whitehall. Then came their learned counsel and told us that my lords the bishops are guardians of the church, and great peers of the realm, and were bound in conscience to act as they did. Various precedents have been vouched to show that the kings of England have not the power assumed by his present majesty in issuing the declaration and ordering it to be read; but concessions which kings sometimes make, for the good of the people, must not be made law; for this is reserved in the king’s breast to do what he pleases in it at any time. The truth of it is, the dispensing power is out of the case, and I will not take upon me to give any opinion upon it now; for it is not before me. The only question for you is a question of fact, whether you are satisfied that this petition was presented to the king at Whitehall. If you disbelieve the lord president, you will at once acquit the defendants. If you give credit to his testimony, the next consideration is, whether the petition be a seditious libel, and this is a question of law on which I must direct you. Now, gentlemen, anything that shall disturb the government, or make mischief and a stir among the people, is certainly within the case ‘de libellis famosis;’ and I must, in short, give youmy opinion—I do take it to be a libel. But this being a point of law, if my brothers have anything to say to it, I suppose they will deliver their opinions.”
Mr. Justice Holloway, though a devoted friend of the government, had in his breast some feeling of shame, and observed,—
“If you are satisfied there was an ill intention of sedition or the like, you should find my lords the bishops guilty; but if they only delivered a petition to save themselves harmless, and to free themselves from blame, by showing the reason of their disobedience to the king’s command, which they apprehend to be a grievance to them, I cannot think it a libel.”Wright, C. J.—“Look you, by the way, brother, I did not ask you to sum up the evidence, (for that is not usual,) but only to deliver your opinion whether it be a libel or no.”Powell, J.—“Truly, I cannot see, for my part, anything of sedition or any other crime fixed upon these reverend fathers. For, gentlemen, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. As to the falsehood, I see nothing that is offered by the king’s counsel, nor anything as to the malice; it was presented with all the humility and decency becoming subjects when they approach their prince. In the petition, they say, because they conceive the thing that was commanded them to be against the law of the land, therefore they do desire his majesty that he would be pleased to forbear to insist upon it. If there be no such dispensing power, there can be no libel in the petition which represented the declaration founded on such a pretended power to be illegal. Now, gentlemen, this is a dispensation with a witness; it amounts to an abrogation and utter repeal of all the laws; for I can see no difference, nor know of anyin law, between the king’s power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatsoever. If this be once allowed of, there will need no Parliament: all the legislature will be in the king—which is a thing worth considering—and I leave the issue to God and your own consciences.”
Allybone, however, on whom James mainly relied, foolishly forgetting the scandal which would necessarily arise from the Protestant prelates being condemned by a Popish judge for trying to save their church from Popery, came up to the mark, and, in the sentiments he uttered, must have equalled all the expectations entertained of him by his master:—
“In the first place,” said he, “no man can take upon him to write against the actual exercise of the government, unless he have leave from the government. If he does, he makes a libel, be what he writes true or false; if we once come to impeach the government by way of argument, it is argument that makes government or no government. So I lay down, that the government ought not to be impeached by argument, nor the exercise of the government shaken by argument. Am I to be allowed to discredit the King’s ministers because I can manage a proposition, in itself doubtful, with a better pen than another man? This I say is a libel. My next position is, that no private man can take upon him to write concerning the government at all; for what has any private man to do with the government? It is the business of the government to manage matters relating to the government; it is the business of subjects to mind only their private affairs. If the government does come to shake my particular interest, the law is open for me, and I may redress myself; but when I intrude myself into matters which do not concern myparticular interest, I am a libeller. And, truly, the attack is the worse if under a specious pretence; for, by that rule, every man that can put on a good vizard may be as mischievous as he will, so that whether it be in the form of a supplication, or an address, or a petition, let us call it by its true denomination, it is a libel.” He then examined the precedents which had been cited, displaying the grossest ignorance of the history as well as constitution of the country; and, after he had been sadly exposed by Mr. Justice Powell, he thus concluded: “I will not further debate the prerogatives of the crown or the privileges of the subject; but I am clearly of opinion that these venerable bishops did meddle with that which did not belong to them; they took upon themselves to contradict the actual exercise of the government, which I think no particular persons may do.”
The chief justice, without expressing any dissent, merely said, “Gentlemen of the jury, have you a mind to drink before you go?” So wine was sent for, and they had a glass apiece; after which they were marched off in custody of a bailiff; who was sworn not to let them have meat or drink, fire or candle, until they were agreed upon their verdict.
All that night they were shut up, Mr. Arnold, the king’s brewer, standing out for a conviction till six next morning, when, being dreadfully exhausted, he was thus addressed by a brother juryman: “Look at me; I am the largest and the strongest of the twelve, and, before I find such a petition as this a libel, here I will stay till I am no bigger than a tobacco-pipe.”
The court sat again at ten, when the verdict of not guilty was pronounced, and a shout of joy was raised which was soon reverberated from the remotest parts of the kingdom.One gentleman, a barrister of Gray’s Inn, was immediately taken into custody in court, by order of the lord chief justice, who, with an extraordinary command of temper and countenance, said to him in a calm voice,—“I am as glad as you can be that my lords the bishops are acquitted, but your manner of rejoicing here in court is indecent; you might rejoice in your chamber or elsewhere, and not here. Have you any thing more to say to my lords the bishops, Mr. Attorney?”A. G.—“No, my lord.”Wright, C. J.—“Then they may withdraw,”—and they walked off; surrounded by countless thousands, who eagerly knelt down to receive their blessing.[155]
Justice Holloway was forthwith cashiered, as well as Justice Powell; and there were serious intentions that Chief Justice Wright should share their fate, as the king ascribed the unhappy result of the trial to his pusillanimity—contrasting him with Jeffreys, who never had been known to miss his quarry. This esteemed functionary held the still more important office of lord high chancellor, and, compared with any other competitor, Wright, notwithstanding his occasional slight lapses into conscientiousness, appeared superior in servility to all who could be substituted for him.[156]Allybonewas declared to be “the man to go through thick and thin;” but, unfortunately, he had made himself quite ridiculous in all men’s eyes by the palpable blunders he had recklessly fallen into during the late trial; and he felt so keenly the disgrace he had brought on himself and his religion, that he took to his bed and died a few weeks afterwards.
Thus, when William of Orange landed at Torbay, Wright still filled the office of chief justice of the King’s Bench. He continued to sit daily in court till the flight of King James, when an interregnum ensued, during which all judicial business was suspended, although the public tranquillity was preserved, and the settlement of the nation was conducted by a provisional government. After Jeffreys had tried to make his escape, disguised as a sailor, and was nearly torn to pieces by the mob, Wright concealed himself in the house of a friend, and being less formidable and less obnoxious (for he was called the “jackalto thelion,”) he remained some time unmolested; but upon information, probably ill-founded, that he was conspiring with Papists who wished to bring back the king, a warrant was granted against him by the Privy Council, on the vague charge of “endeavoring to subvert the government.” Under this he was apprehended, and carried to the Tower of London; but after he had been examined there by a committee of the House of Commons, it was thought that this custody was too honorable for him, and he was ordered to be transferred to Newgate. Here, from the perturbation of mind which he suffered, he was seized with a fever, and he died miserably a few days after, being deafened by the cheers which were uttered when the Prince and Princess of Orange were declared King and Queen of England.
His pecuniary embarrassments had continued even after he became a judge, and, still living extravagantly, his means were insufficient to supply him with common comforts in his last hours, or with a decent burial. His end holds out an awful lesson against early licentiousness and political profligacy. He was almost constantly fighting against privation and misery, and during the short time that he seemed in the enjoyment of splendor he was despised by all good men, and he must have been odious to himself. When he died, his body was thrown into a pit with common malefactors; his sufferings, when related, excited no compassion; and his name was execrated as long as it was recollected.
It is lucky for the memory of Wright that he had contemporaries such as Jeffreys and Scroggs, who considerably exceeded him in their atrocities. Had he run the same career in an age not more than ordinarily wicked, his name might have passed into a by-word, denoting all that is odious and detestable in a judge; whereas his misdeeds have long been little known, except to lawyers and antiquaries.
It is a painful duty for me to draw them from their dread abode; but let me hope that, by exposing them in their deformity, I may be of some service to the public. Ever since the reaction which followed the passing of the reform bill, there has been a strong tendency to mitigate the errors and to lament the fate of James II. This has shown itself most alarmingly among the rising generation; and there seems reason to dread that we may soon be under legislators and ministers who, believing in the divine right of kings, will not only applaud, but act upon, the principles of arbitrary government. Some good may arise from showing in detail the practical results of such principles in the due administrationof justice—the chief object, it has been said, for which man renounces his natural rights, and submits to the restraints of magisterial rule.[157]
No. I.
The case of Passmore Williamson, as stated by himself in his petition for a habeas corpus, to the Supreme Court of Pennsylvania.
To the Honorable the Judges of the Supreme Court of Pennsylvania:
The petition of Passmore Williamson respectfully sheweth: That your petitioner is a citizen of Pennsylvania, and a resident of Philadelphia; that he is a member of “The Pennsylvania Society for promoting the abolition of Slavery, and for the relief of free negroes unlawfully held in bondage, and for improving the condition of the African race,” incorporated by act of Assembly passed the 8th day of December, A. D. 1789, of which Dr. Benjamin Franklin was the first president, and that he is secretary of the acting committee of said society.
That on Wednesday, the 18th day of July last past, your petitioner was informed that certain negroes, held as slaves, were then at Bloodgood’s hotel, in the city of Philadelphia, having been brought by their master into the state of Pennsylvania, with the intention of passing through to other parts. Believing that the persons thus held as slaves were entitled to their freedom by reason of their having been so brought by their master voluntarily into the state of Pennsylvania, the petitioner, in the fulfilment of the official duty imposed upon him by the practice and regulations of the said society, went to Bloodgood’s hotel for the purpose of apprizing the alleged slaves that they were free, and finding that they with their master had left said hotel, and gone on board the steamboat of the New York line, then lying near Walnut Street wharf, your petitioner went on board the same, found the party, consisting of a woman named Jane, about thirty-five years of age, and her two sons, Daniel, aged about twelve, and Isaiah, aged about seven, and, in presence of the master, informed the said Jane that she was free by the laws of Pennsylvania; upon which she expressed her desire to have her freedom, and finally, with her children, left the boat of her own free will and accord, and without any coercion or compulsion of any kind; and having seen her in possession of her liberty, with herchildren, your petitioner returned to his place of business, and has never since seen the said Jane, Daniel and Isaiah, or either of them; nor does he know where they are, nor has he had any connection of any kind with the subject.
Your petitioner used no violence whatever, except simply holding back Colonel Wheeler, their former master, when he attempted by force to prevent the said Jane from leaving the boat. Some half dozen negroes, employed, as your petitioner is informed, as porters and otherwise, at the wharf and in the immediate neighborhood, of their own accord and without any invitation of the petitioner, but probably observing or understanding the state of affairs, followed the petitioner when he went on board the boat. An allegation has been made that they were guilty of violence and disorder in the transaction. Your petitioner observed no acts of violence committed by them, nor any other disorder than the natural expression of some feeling at the attempt of Colonel Wheeler to detain the woman by force; that there was not any violence or disorder amounting to a breach of the peace is also fairly to be inferred from the fact that two police officers were present, who were subsequently examined as witnesses, and stated that they did not see anything requiring or justifying their interference to preserve the peace. And your petitioner desires to state explicitly that he had no preconcert or connection of any kind with them or with their conduct, and considers that he is in no way responsible therefor. Your petitioner gave to Colonel Wheeler, at the time, his name and address, with the assurance that he would be responsible if he had injured any right which he had; fully believing at the time, as he does still believe, that he had committed no injury whatever to any right of Colonel Wheeler.
On the night of the same day your petitioner was obliged to leave the city to attend an election of the Atlantic and Ohio Telegraph Company, at Harrisburg, and returned to Philadelphia on Friday, the 20th of July, between one and two o’clock, A. M. Upon his return, analiaswrit ofhabeas corpuswas handed to him, issued from the district court of the United States for the eastern district of Pennsylvania, upon the petition of the said John H. Wheeler, commanding him that the bodies of the said Jane, Daniel and Isaiah he should have before the Hon. John K. Kane, judge of the said district court, forthwith. To the said writ your petitioner the same day, viz., the 20th day of July last past, made return, that the said Jane, Daniel and Isaiah, or by whatever name they may be called, nor either of them, were not then, nor at the time of issuing said writ, or the original writ, or at any other time, in the custody, power, or possession of, nor confined nor restrained of their liberty, by your petitioner; therefore hecould not have the bodies of the said Jane, Daniel and Isaiah before the said judge, as by the said writ he was commanded.
Whereupon and afterwards, to wit: on the 27th day of July aforesaid, it was ordered and adjudged by the court that your petitioner be committed to the custody of the marshal, without bail or mainprize, as for a contempt in refusing to make return to a writ ofhabeas corpustheretofore issued against him at the instance of Mr. John H. Wheeler; all which appears by the record and proceedings in the said case, which your petitioner begs leave to produce, and a copy of an exemplification of which is annexed to this petition. Thereupon, on the same day, a warrant was issued, commanding that the marshal of the United States, in and for the eastern district of Pennsylvania, forthwith take into custody the body of your petitioner, for a contempt of the honorable the judge of the said district court, in refusing to answer to the said writ ofhabeas corpus, theretofore awarded against him, the said petitioner, at the relation of Mr. John H. Wheeler, a copy of which is hereto annexed, and also a warrant, by and from the marshal of the United States, to the keeper of the Moyamensing prison, a copy of which is also hereto annexed; under which warrants your petitioner was committed to the said prison, and is now there detained, without bail or mainprize.
Notwithstanding the record is silent on the subject, your petitioner thinks it proper to state that, on the return of the writ ofhabeas corpus, the judge allowed the relator to traverse the said return by parol, under which permission the relator gave his own testimony, in which he stated that he held the said Jane, Daniel and Isaiah as slaves, under the law of Virginia, and had voluntarily brought them with him by railroad from the city of Baltimore to the city of Philadelphia, where he had been accidentally detained at Bloodgood’s hotel about three hours; and certain other witnesses were examined. From the testimony thus given, though not at all warranted by it or by the facts, the said judge decided that your petitioner had been concerned in a forcible abduction of the said Jane, Daniel and Isaiah, against their will and consent, upon the deck of the said steamboat, but admitted that your petitioner took no personally active part in such supposed abduction after he had left the deck.
The hearing took place on the morning of Friday, the 20th of July, at ten o’clock, your petitioner having had the first knowledge of the existence of any writ ofhabeas corpusbetween one and two o’clock on the same morning. Under these circumstances, before the said testimony was gone into and afterwards, the counsel of your petitioner asked for time, until the next morning, for consultation and preparation for the argument of thequestions which might arise in the case, which applications were refused by the court, and the hearing went on, and closed on the same morning between twelve and one o’clock.
On Tuesday, the 31st of July, 1855, your petitioner presented to the Hon. Chief Justice of this court a petition for ahabeas corpus, which was refused.
Inasmuch as your petitioner is thus deprived of his liberty for an indefinite time, and possibly for his life, as he believes, illegally; inasmuch as he is a native citizen of Pennsylvania, and claims that he has a right to the protection of the commonwealth, and to have recourse to her courts for enlargement and redress; he begs leave respectfully to state some of the grounds on which he conceives that he is entitled to the relief which he now prays.
Whatever may be the view of the court as to the probability of his discharge on a hearing, your petitioner respectfully represents that he is clearly entitled to have a writ ofhabeas corpusgranted, and to be thereupon brought before the court. Upon this subject the Pennsylvaniahabeas corpusact is imperative. Indeed, as the question of the sufficiency of the cause of his detention directly concerns his personal liberty, any law which should fail to secure to him the right of being personally present at its argument and decision, would be frightfully inconsistent with the principles of the common law, the provisions of our Bill of Rights, and the very basis of our government.
It is believed that no case, prior to that of your petitioner, is reported in Pennsylvania, of a refusal of this writ to a party restrained of his liberty, except the case ofEx parte Lawrence, 5 Binn. 304, in which it was decided that it was not obligatory on the court to issue a second writ ofhabeas corpuswhere the case had been already heard on the same evidence upon a first writ ofhabeas corpusgranted by another court of the petitioner’s own selection: in other words, that the statutory right to the writ was exhausted by the impetration and hearing of the first writ, and that the granting of a second writ was at the discretion of the court. This case, therefore, appears to confirm strongly the position of your petitioner, that he is absolutely entitled at law to the writ for which he now prays.
On the hearing there will be endeavored to be established on behalf of your petitioner, on abundant grounds of reason and authority, the following propositions, viz.:—
1. That it is the right and duty of the courts, and especially of the supreme court of this commonwealth, to relieve any citizen of the same from illegal imprisonment.
2. That imprisonment under an order of a court or judge not havingjurisdiction over the subject matter, and whose order is therefore void, is an illegal imprisonment.
3. That the party subjected to such imprisonment has a right to be relieved from it onhabeas corpus, whether he did or did not make the objection of the want of jurisdiction before the court or judge inflicting such imprisonment; and that if he did not make such objection, it is immaterial whether he were prevented from making it by ignorance of the law, or by the want of extraordinary presence of mind, or by whatever other cause.
4. That the courts and judges of the United States are courts and judges of limited jurisdiction, created by a government of enumerated powers, and in proceedings before them the records must show the case to be within their jurisdiction, otherwise they can have none.
5. That if the record of any proceeding before them show affirmatively that the case was clearly without their jurisdiction, there can no presumption of fact be raised against such record for the purpose of validating their jurisdiction.
6. That no writ ofhabeas corpuscan be issued to produce the body of a person not in custody under legal process, unless it be issued in behalf and with the consent of said person.
7. That at common law, the return to a writ ofhabeas corpus, if it be an unevasive, full and complete, is conclusive, and cannot be traversed.
8. That a person held as a slave under the law of one state, and voluntarily carried by his owner for any purpose into another state, is not a fugitive from labor or service within the true intent and meaning of the constitution of the United States, but is subject to the laws of the state into which he has been thus carried; and that by the law of Pennsylvania a slave so brought into this state, whether for the purpose of passing through the same or otherwise, is free.
9. That the district court of the United States has no jurisdiction whatever over the question of freedom or slavery of such person, or of an alleged abduction of him, nor any jurisdiction to award a writ ofhabeas corpuscommanding an alleged abductor, or any citizen by whom he may be assumed to be detained, to produce him.
10. That in case of a fugitive from service or labor from another state, the district court of the United States has jurisdiction to issue a warrant for the apprehension of such fugitive, and in case he be rescued and abducted from his claimant, so proceed by indictment and trial by jury against such abductor, and on conviction to punish him by limited fine and imprisonment; but even in the case of a fugitive slave, said court northe judge thereof has no jurisdiction to issue a writ ofhabeas corpus, commanding the alleged abductor to produce such fugitive, or to enforce a return of such writ, or allow a traverse of the return thereof if made, or upon such traverse in effect convict the respondent, without indictment or trial by jury of such abduction, and thereupon punish him therefor by unlimited imprisonment in the name of a commitment, as for a contempt in refusing to return such writ ofhabeas corpus.
11. That generally it is true that one court will not go behind a commitment by another court for contempt; but that this is only where the committing court has jurisdiction of the subject matter; and your petitioner submits that when the circumstances of the supposed contempt are set forth upon the record of commitment, and it further appears thereupon that the whole proceedings werecoram non judice, and that for that and other reasons the commitment was arbitrary, illegal and void, it is the right and duty of a court of competent jurisdiction, by writ ofhabeas corpus, to relieve a citizen from imprisonment under such void commitment.