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means confined to their judicial career, but often embraces the political history of the times in which they lived. Nor are their memoirs, by any means, devoid of other interesting matter. The subjects of them are generally men who mingled much in society, and whose names are consequently connected with those of the celebrated persons of their day. Occasionally, too, we meet amongst them with men whose singular characters and eccentric habits, render their biography highly entertaining. It is with the view of collecting the scattered anecdotes relative to the most remarkable of these personages, that we enter upon the present task; and, in the following pages, we propose to give some account of the more distinguished ornaments of the bench, during a very singular period of judicial history,-the reign of Charles II.
At the commencement of the seventeenth century a very considerable change had begun to take place in the character of the judges. In the political struggles which were even then generating, it was a difficult task for men of their influence and station to remain neuter. In earlier times the Crown had never thought it worth while to bespeak the services of the judges, in assisting it to assert the prerogative; the hand of power had, in general, been sufficiently strong without such aid. "It is very observable," says Clarendon, in speaking of the opinions delivered by the judges upon the matter of ship-money, "It is very observable, that in the wisdom of former times, when the prerogative went highest (as very often it hath been swoln above any pitch we have seen it at in our times) never any court of law -very seldom any judge or lawyer of reputation was called upon to assist in any act of power, the Crown well-knowing the object of keeping those the objects of reverence and veneration with the people, and that though it might sometimes make sallies upon them by the prerogative, yet, that the law would keep the people from any invasion of it, and that the king would never suffer whilst the law and the judges were looked upon by the subject, as the asylum for their liberties and security." (Clar. Rebel. I. 124.) Upon the accession of James I. however, these maxims were forgotten, and a system of intimidation and corruption was then commenced by the Crown which did not terminate until the Revolution. We have on a former occasion* enabled the reader to form some idea of the conduct. observed by James I. towards his judges, and, it is almost unnecessary to advert to the infamous prostitution of the judicial character which distinguished the reign of his successor. With respect to the affair of ship-money, even Clarendon speaks of
* See Life and Character of Sir Edward Coke. Retros. Rev. viii. 105.
it in the warmest terms of reprobation. "And here the damage and mischief cannot be expressed, that the Crown and State sustained by the deserved reproach and infamy that attended the judges, by being made use of in this and the like acts of power." Upon the whole, however, the odious part acted by the judges in the reign of Charles I., was perhaps serviceable to the interests of freedom, by awakening the feelings of the people; and Finch's speech in the Exchequer chamber, is said to have rendered ship-money much more abhorred and formidable than all the commitments of the Council Table. But without canvassing the character of the Bench at this period, or during the Commonwealth, which we may possibly attempt upon some future occasion, we shall only observe, that the system which had its origin in the reign of James I., and attained so pernicious a maturity during that of his son, was revived in all its full vigour soon after the Restoration. In the times of the Plantagenets and the Tudors it was unnecessary to veil the encroachments of power under the semblance of justice; but now, when any act of oppression or iniquity was to be wrought, it was essential to clothe it with the judicial sanction. Accordingly we find that the utmost exertions were at this time made by the Crown, and in general with the greatest success, to render the judges subservient to the royal wishes. The consequence of this was, that men of loose principles, and abandoned manners, were selected to fill the judgment-seat; and the records of our courts of justice are disgraced with such names as Jefferies, Scroggs, Wright, and Saunders, (though in legal attainments the latter was eminently fitted for his station.) Of the personal character of Saunders, and, indeed, of some other of the judges of this time, an account has been given in our former volumes, which we shall not repeat upon this occasion, only observing that it will be necessary to recur to the portrait of Saunders, as painted by Roger North, in order to complete the series of sketches which we now intend to present to the reader.
In discussing the character of our English judges, an examination into the nature of the tenure by which they held their offices (a subject very ably illustrated by Mr. Serjeant Heywood in the Appendix to his Vindication of Fox's Historical Work,) will be found to throw great light upon our judicial biography. During the reigns of Elizabeth and James I. the commissions of the Chief Justices of the King's Bench were in general without any specification of the tenure, and they were removeable at the pleasure of the king. The puisne Judges, both of the King's Bench and Common Pleas, held quam diu
Retros. Rev. vol. ii. p. 252; vol. viii. p. 17.
nobis placuerit; but the judges of the Exchequer were appointed quam diu se bene gesserint. James I. was advised by Bacon to exercise this power in the case of Sir Edward Coke, (see Bacon's Works, vi. 125); and in the succeeding reign, Sir Randolph Crewe (who had resisted the system of illegal loans and benevolences) and Sir Robert Heath were unceremoniously displaced. In the year 1640, the House of Lords petitioned that the patents of all the judges should be made quam diu se bene gesserint, and not as formerly, durante bene placito; “unto which request his majesty was graciously pleased to condescend." Cromwell appears to have paid but little regard to this regulation, and removed a baron of the Exchequer, and one of the judges of the Upper Bench. For some time after the Restoration, the patents of the judges pursued the form adopted by Charles I., and ran quam diu, &c.; but the inconvenience of not holding those offices altogether dependant upon the Crown was soon felt, and the old form of the patents, durante bene placito, was restored. The time when this alteration first took place is not clearly ascertained; but it was probably before Dighton's case, which was tried in the King's Bench, in Trinity Term, 1670; on which occasion, the offices of judicature in Westminster Hall were said by the court to be held durante bene placito. The patent of Sir Richard Rainsford, who was made one of the judges of the King's Bench, in the year 1678, was durante bene placito.-(Siderfin's Rep. p. 408.)
The appointment of the judges at this period, as at present, was virtually in the power of the Lord Chancellor; but this right of patronage was disputed by Jefferies, when chief justice, with North, then Lord Keeper. The chief justice was supported by a strong party at court, who were adverse to the Lord Keeper, and anxiously resorted to every device in order to lessen his influence. Upon one occasion they succeeded in procuring the appointment of Sir Robert Wright to a puisne seat on the bench, against the opinion of North, and certainly to the public scandal of the government. This incident is a striking proof of the extent to which the system of corruption was carried at the court of Charles II., and of the influence which Jefferies possessed with the king. Sir Robert Wright was "a comely person, airy and flourishing, both in his habits and way of living;" but at the same time so wretched a lawyer, that he was absolutely unable to give an opinion; and when a case was laid before him, he usually applied for assistance to his friend, North, who furnished him with an opinion, which Wright copied and signed. Having dissipated his estate in debauchery, and finding himself on the brink of ruin, he ap
plied to Jefferies to rescue him from his difficulties, by getting him made a judge. Upon a vacancy occurring, the king consulted the Lord Keeper respecting a proper person to fill it, adding, "My lord, what think you of Serjeant Wright? why may not he be the man?" North answered, that he knew him but too well, and was satisfied that he was the most unfit person in England to be made a judge. "Then," said the king, "it must not be ;" and the matter was for a time suspended. We shall relate the sequel in the words of Roger North.
"Wright still by his friend Jefferies pushed his point, and in the interim worked all he could by most importunate applications and bitter tears, (but for no other reason than that if he failed now he was utterly ruined), to gain his lordship to yield that he might be a judge: but to no purpose; his lordship was inflexible: and though he wished the poor man well, upon account of old acquaintance, he would not gratify him at the cost of his own breach of duty, or rather, in that respect, perjury. The king took his time more than once to speak to my lord-keeper, saying, as before, Why may not Wright be a judge? and at last, Is it impossible, my lord? His lordship seeing the king's pangs, for it was plain that this man, by the secret court claim, was determined to be preferred; for he was a creature of Jefferies, and a tool that would do any thing; and they wanted only the formality of my lord-keeper's concurrence, (to whom the king positively would have due respect paid), took the freedom to say, that the making a judge was his majesty's pleasure, and not his choice; that he was bound to put the seal as he commanded, whatever the person was, for of that his majesty was to judge, and finally determine. He could but do his duty by informing of his majesty of what he knew to be true; and particularly of this man whom he personally knew to be a dunce, and no lawyer; not worth a groat, having spent his estate by debauched living; of no truth nor honesty, but guilty of wilful perjury to gain the borrowing a sum of money: and then he opened more at large the matter of the affidavit." And now," said the lord-keeper, "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 shall be a judge."-" My lord keeper," said the king, "I thank you," and went away; and soon after the warrant came and he was instated."(Vol. ii. p. 174.)
It is not surprising that a man so peculiarly fitted to become the instrument of unconstitutional measures as Wright was, should find favour in the eyes of James II. He was accordingly in that reign appointed chief justice; but his conduct was such, as even to extort from his former patron, Jefferies, at that time chancellor, the appellation of beast.
Amongst the many profligate men whose baseness was the means of elevating them to the bench, during this reign, Sir William Scroggs may, perhaps, be selected as an honest spe
cimen of the class to which he belonged. His birth was mean, being the son of a butcher; but by his own exertions he acquired considerable practice at the bar, and was made a sergeant. His professions of loyalty found favour at court, and he was accordingly appointed chief justice of the King's Bench at the time when North presided over the Common Pleas. Upon the first opening of the Popish plot, he appears to have been deceived into an idea that, by favouring the discoverers of it, he was rendering an acceptable service to the king, and he accordingly interested himself, in a violent and scandalous manner, to procure convictions of persons accused of being participators in the plot; but having received some intimation that the course which he was pursuing was not so agreeable to the king as he had imagined, "he turned as fierce against Oates and his plot, as before he had ranted for it; and thereby gave so great offence to their evidenceships, the plot witnesses, that Oates and Bedloe accused him to the king, and preferred formal articles of divers extravagancies and immoralities against him." Some of the charges brought forward upon this occasion are amusing enough, and, when the character of Scroggs is considered, appear by no means improbable. The sixth artiele runs as follows-(Howell's St. Tr. viii. 170.)
"That the lord chief justice is very much addicted to swearing and cursing* in his common discourse, and to drink to excess, to the great disparagement of the dignity and gravity of his said place. He did in his common discourse at dinner, at a gentleman's house of quality, publicly and openly use and utter many oaths and curses, and there drank to excess.'
The accusations thus preferred were heard before the king in council, when Scroggs attacked his adversaries with much severity and wit; but, on the failure of sufficient proof, the proceeding was abandoned. Such, however, had been the outrageous conduct of the chief justice upon many occasions, in the King's Bench, that articles of impeachment were prepared against him by the House of Commons, and a charge, very similar to that advanced by Oates and Bedloe, was again made against him.-(St. Tr. viii. 200.)
The only recorded instance, which at present occurs to us, of a judge venturing to use an oath upon the bench, is to be found in the Year-Book 2 Henry 5. 5. cited in 11 Rep. 53 b. "A dyer was bound that he should not use the dyers' craft for two years, and there Hull held that the bond was against the common law, and, by God, if the plaintiff was here, he should go to prison till he paid a fine to the king."
VOL. X. PART I,