THE REAL JUDGE JEFFREYS.* IF at the beginning of the
present century the question had
been asked in any literary coterie what two names on record were the most generally infamous, the answer would probably have been Machiavelli and Judge Jeffreys. The popular verdict on the first has long been reversed, and, by a curious coincidence, no man contributed more to the reversal of the verdict on Machiavelli than the very man who has done most to confirm the verdict on Jeffreys. If Macaulay white- washed, and induced others to assist in the white-washing of Machiavelli, be has made amends by providing his own countryman with an extra coating of blacking. It is certainly of more moment that the world should be set right about the motives, conduct, and character of the author of The Prince, than about those of a man whose importance ceased with his day and with the discharge of the duties entrusted to him. But justice is justice and truth is truth, and if history and biography are to maintain their
credit they should not be permitted to tamper with either.
Has the truth been told about Jeffreys ? Have the Bench and the Woolsack ever been disgraced by the monster depicted by Macaulay and Campbell ? We greatly doubt it. This at least is certain, that if the truth about him has been told, it has not only been told by what must be considered to be the rarest of fortunate accidents, but it has been derived from sources which, to say the least, have seldom, if ever, been the sources of truth. We know him only by the testimony of witnesses who had every motive for misrepresenting and maligning him, and by what is recorded in publications which
had no pretension to be anything else than the expression of personal or party hostility. Let us turn for a moment to the authorities for his life and character, and to the evidence on which he has been judged. They may be ranged under three headings,—the frantic diatribes of the friends, relatives, and partisans of those on whom he had passed sentence in the Western Rebellion; the accounts given of him by those who, as Whigs and Nonconformists, were naturally and necessarily, considering the part he had had to play, his strong enemies ; and lastly, the more temperate, but not less prejudiced, notices of him by men who had various reasons for presenting him in an unfavourable light. First comes The Bloody Assizes ; or, A Complete History of the Life of George Lord Jefferies, compiled by one James Bent, who had served in Monmouth's army, and who published this philippic, which ran through no less than five editions, just after Jeffreys's fall. Next we have The Dying Speeches, Letters and Prayers of the Eminent Protestants who Suffered in the West of England and elsewhere under the Cruel Sentence of the late Lord Chancellor, another furious attack on the fallen Judge ; and in the same year another onslaught on his memory in the form of The Unfortunate Favourite; or, Memories of the Life and Actions of the late Lord Chan- cellor from his Cradle to his Grave. Next come The Merciless Assizes and The Western Martyrology, for which Tutchin was mainly responsible, and as he had been sentenced by Jeffreys to be imprisoned for seven years and to be whipped through every market town in Dorsetehire, it is not difficult to account for the portrait given here. The other leading authorities for his life and character are Roger North, Burnet, Oldmixon, and the author of a biography which appeared in 1725, and was reprinted in 1764. Roger North hated him as the rival and supplanter of his brother, the Lord Keeper Guildford. Burnet hated him as the enemy of his party, and had, more- over, been personally insulted by him. Oldmixon, an un- scrupulous and fool-mouthed Whig, whom Macaulay himself describes as the " worst historian who ever lived," had every motive for assailing his memory, for he not only detested him as a prominent Tory and an enemy of the Nonconformists, but hie hostility was sharpened by the fact that he himself was a Somersetshire man, and had many friends whose relatives had been sentenced in the Western Rebellion. Of the author of the anonymous biography it may suffice to say that he is a worthy successor of Oldmixon, if indeed he was not Old- • The Life of Judge Jeffreys. By H. B. Irving. London : William Heinemann. [12e. 6d. net.] mixon himself. It might have been expected that Lord Campbell and Lord Macaulay would at least have regarded these authorities as suspicious witnesses, and would have taken some trouble to sift their evidence, or to find confirma- tion of it. They have done nothing of the kind. They have not only accepted it without reserve, but they have even heightened and exaggerated what they have adopted. By a most improper use of the State Trials they have perverted what should have been a corrective to false statements and misrepresenta- tions into collateral testimony in their favour. No one can read the State Trials without being struck by the contrast presented by Jeffreys as he actually comported himself at the Bar and on the Bench, and Jeffreys as tradition, Campbell, and Macaulay have represented him. Every one must admit that there are the strongest a priori reasons for suspecting the correctness of the popular estimate of Jeffreys. Whatever may have been his real character, had he been as virtuous as Somers and as honest as Saunders and Maynard, his identification with a cause and a party which have ever since their overthrow at the Revolution been regarded, and most naturally and rightly regarded, with hatred by the friends of liberty and the dispensers of historic fame, the part which he was called upon to play as Recorder and King's Sergeant, as Chief Justice, as Lord Chancellor, the anxiety of the Tories to make him the scapegoat of what they found it expedient to repudiate,—all this predestined him to posthumous infamy. The moment we submit his con- duct and actions to impartial scrutiny we see how glaringly they have been misrepresented. He has been accused, as every one knows, of the judicial murder of Lord William Russell and of Algernon Sidney, and much has been said about the ferocious inhumanity with which he treated them. But what are the facts ? In the case of Lord William Russell be was merely one of the two prosecutors for the Crown. If there was any miscarriage of justice the blame rests with Pemberton.
In the trial of Sidney, at which he presided as Chief Justice, his
forbearance, courtesy, and patience are most striking. He be- gan by warning Sidney, who conducted his own defence, against
taking a step which might at once have been fatal. In the course of the trial he went out of his way to point out the advantage which would be gained by discrediting the state- ment of the principal witness for the prosecution when Sidney was injuring himself by neglecting to do so. It was only when Sidney's irrelevancies were intolerable that he checked them, and it was always with courtesy, and even gentleness, that he intervened. It was afterwards ruled that
the evidence on which the accused was condemned was inad- missible, and that Jeffreys in instructing the jury that docu- mentary evidence could be substituted for the testimony of a
second witness, misdirected them. The answer to this is that the law was by no means clear on that point, and that Jeffreys's ruling was corroborated by his brother Judges. Even Hallam admits that what was asserted when the sentence was reversed at the Revolution, namely, that the handwriting was not proved, is incorrect; it was proved by evidence which would be held to be perfectly satisfactory in any of our Courts now.
A more odious and repulsive duty was never entrusted to any public servant than James imposed on Jeffreys when he sent him to try the Western rebels. That from the point of view of the existing Government the conduct of these people deserved, and even necessitated, exemplary punishment, every one must admit. It was with a population in the position of one under military execution that the Chief Justice had to deal, with men who had technically levied war against their Sovereign, and who had been taken red-handed in the most serious crime of which in the view of the law subjects can be guilty. We may hold, and indeed do hold, that they were morally abundantly justified in rebelling, and that their action was noble and patriotic in a high degree, but it would not be fair to condemn Jeffreys for holding an opposite view. It is only just, then, to Jeffreys that distinction should be made where distinction never has been made. Sentimental considerations must be set aside. In administer- ing the law, and in inflicting its frightful penalties, he simply did what he had been commissioned to do, and what, con- sidering his own position and opinions, he was bound to do. The question is, did he discharge his terrible duty impartially and without unnecessary severity F Did he either carelessly or in a spirit of wanton cruelty involve the innocent with the guilty ? Was he the brute and savage, the
disgrace to manhood and to his office, which he is depicted as being in The Bloody Assizes and in Macaulay's History. Our own impression is that when he said to Tutchin, " My instructions were much more severe than the execution of them, and on my return I was snubbed at Court for being too merciful," and when on his death-bed he said to Dr. Scot, "I was not half bloody enough for him who sent me thither," he said no more than the simple truth. This is borne out by the author of the Caveat against the Whigs, who writes, " There was not above a fourth part executed of what was convicted," adding, "I cannot but think a little more hemp might have been usefully employed upon this occasion." How utterly untrustworthy are the accounts which have been given of these transactions may be judged by the discrepancy in the statements about the numbers of those who suffered death. Lord Lonsdale put them at seven hundred; Burnet at six hundred ; the list which the Judges sent to the Treasury at three hundred and twenty ; a document in the British Museum, dated April let, 1686, at a hundred and two. In fact, it is simply hopeless to obtain any approximation to certainty as to the proportion of those who actually suffered ; the only certainty is that the numbers have been grossly and recklessly exaggerated. If we take Macaulay's numbers, three hundred and twenty, can it be said that out of upwards of five thousand prisoners the proportion of those who paid the penalty for a capital crime was excessive ? No one has ever doubted the humanity of Sir Thomas More or of Cardinal Pole, and yet both these eminently humane men authorised cruelties far more barbarous than those attributed to Jeffreys. Cromwell, one of the most tender-hearted of men, inflicted on the rebels at Drogheda and Wexford the most terrible punishment. In each of these cases the justification lay in the principal of all legal punishment, non quia peccatun; est sed ne peceetur, That the Chief Justice should not have been a model of patience and courtesy, either in his demeanour or in his language, is no matter for surprise. Whoever will turn to the trial of Lady Alice Lisle will see the sort of thing with which he had to contend. Jeffreys knew that the evidence of the principal witness was a tissue of lies. He knew also that Lady Lisle, in asseverating that she was not aware that one of the men whom she had sheltered had been in Monmouth's army, was asserting what was untrue. That such prisoners and such witnesses would have tried the patience of the mildest of modern Judges may well be conceded, but when we remember that during these trials Jeffreys was suffering such tortures from an excrucia- ting malady that he could scarcely contain himself, we must surely make much allowance for his ebullitions of temper. From the point of view of modern sentiment the execution of Lady Alice Lisle was horrible. But it is not from such a point of view that it must be considered. In those days no distinction was made between the penalties imposed on men and women in our criminal jurisdiction, especially in relation to political offences. She fared just as Elizabeth Barton had fared before her, and just as Elizabeth Gaunt fared after her. No blame attaches itself to Jeffreys ; the blame belongs to his detestable master. Her trial was con- ducted with perfect fairness; she was treated with no brutality. The case against her was fully proved, and Jeffreys had no alternative but to pass on her the sentence of the law. He could have ordered her execution at once, but he twice deferred it, leaving ample time for an appeal to the Royal mercy. Sir James Stephen is no friend to Jeffreys, but he does him the justice to state that the conviction of Lady Alice Lisle involved no illegality.
It would be absurd to contend that Jeffreys was either a high-minded or a virtuous man. He was an ambitious adventurer, pursuing fortune in what was little better than a social and political cesspool. He must be judged relatively. He must be compared with those who jostled him at the Bar or sat beside him on the Bench, with such sots as Treby, Shaw, and Saunders, with such libertines as Pemberton and Scroggs, with such " batcher-birds " as Wright, Pollexfen, Rowel, and Jenner, with politicians like Sunderland and Shaftesbury, with ecclesiastics like Sprat, Cartwright, and Parker. And he will not lose by the comparison. His career bad the merit of consistency; he remained true to the principles which he professed both in religion and in politics. Ms Presidency of the Ecclesiastical Commission was quite compatible with his dying asseveration that it was in the interests, not for the overthrow, of the Established Church that he accepted the position. If he strained the law, he never perverted it. He was not corrupt. It was admitted even by his enemies that he discharged his ditties as Chancellor with integrity. From pusillanimous vices he was absolutely free ; he was neither a hypocrite nor untruthful, neither a charlatan nor a sycophant. The stories told about his hardness and brutality rest wholly on the authority of his enemies, and are very difficult to reconcile with what is certainly known, with his conduct, for instance, to Harte, to Philipp Henry, to the sister of the Hewlings. His first wife was a. portionless girl who, having done him a service, had been thrown on the world without a friend. Nothing could he more humane and considerate than his conduct on the trials of the Popish conspirators, and than the remarks with which he passed sentence on Langhorn, on Sidney, and on Lady Alice Lisle. Of the ferocity and violence attributed to him in his treat- ment of prisoners, there are no traces in the State Trials, except in the case of Baxter. But this trial, it should be remembered, is not published from any authentic report, it is simply " a short account " of an ex-parte version furnished after the fall of Jeffreys by the enemies of the Judge. We have thus no means of knowing how far it is correct in its statements, and to what extent the particulars have been coloured and exaggerated. Jeffreys had certainly one sign of a good-natured man, his sense of humour was keener than his sense of resentment.
We have read Mr. Irving's book with the greatest interest and pleasure, and if we have made it rather a •' peg" for a dissertation of our own than a subject of particular criticism, it is because we, to a considerable extent, accept his con- clusions, and have so little fault to find with the details of his work, that we have preferred to pay him the compliment of an independent testimony to the general soundness of his presentation and estimate of this extraordinary man. Our feeling of detestation for James IL and his merciless and tyrannical Government, and our belief in the incalculable blessings secured to England and civil and religious liberty by the Revolution of 1688, are not, of course, affected in the slightest degree by the knowledge that Jeffreys was not in reality the monster he has been represented. The question whether he was, or was not, as unjust a Judge as he has been described does not, that is, affect the need of, and justifica- tion for, the Revolution. We must not do an historical injustice in order to still further blacken the memory of James IL That memory is black enough without it, and, as we have said, the Revolution requires no such excuse as has sometimes been found in the Bloody Assize.
Previous page
