Charles II made Jeffreys Chief Justice of England in order to kill those who were prominent in opposition.  Charles knew what he was doing.  “That man,” said he of Jeffreys, “has no learning, no sense, no manners, and more impudence than ten carted street-walkers.”  The first object was to convict Algernon Sidney of treason.  Jeffreys used simple means.  Usually drunk, his court resembled the den of a wild beast.  He poured forth on “plaintiffs and defendants, barristers and attorneys, witnesses and jurymen, torrents of frantic abuse, intermixed with oaths and curses.”  The law required proof of an overt act of treason.  Many years before Sidney had written a philosophical treatise touching resistance by the subject to the sovereign, as a constitutional principle.  But, though the fragment contained nothing more than the doctrines of Locke, Sidney had cautiously shown it to no one, and it had only been found by searching his study.  Jeffreys told the jury that if they believed the book to be Sidney’s book, written by him, they must convict for scribere est agere, to write is to commit an overt act.

A revolution followed upon this and other like convictions, as revolutions have usually followed such uses of the judicial power.  In that revolution the principle of the limitation of the judicial function was recognized, and the English people seriously addressed themselves to the task of separating their courts from political influences, of protecting their judges by making their tenure and their pay permanent, and of punishing them by removal if they behaved corruptly, or with prejudice, or transcended the limits within which their duty confined them.  Jeffreys had legislated when he ruled it to be the law that, to write words secretly in one’s closet, is to commit an overt act of treason, and he did it to kill a man whom the king who employed him wished to destroy.  This was to transcend the duty of a judge, which is to expound and not to legislate.  The judge may develop a principle, he may admit evidence of a custom in order to explain the intentions of the parties to a suit, as Lord Mansfield admitted evidence of the customs of merchants, but he should not legislate.  To do so, as Jeffreys did in Sidney’s case, is tantamount to murder.  Jeffreys never was duly punished for his crimes.  He died the year after the Revolution, in the Tower, maintaining to the last that he was innocent in the sight of God and man because “all the blood he had shed fell short of the King’s command.”

And Jeffreys was perfectly logical and consistent in his attitude.  A judiciary is either an end in itself or a means to an end.  If it be designed to protect the civil rights of citizens indifferently, it must be free from pressure which will deflect it from this path, and it can only be protected from the severest possible pressure by being removed from politics, because politics is the struggle for ascendancy of a class or a majority.  If, on the other hand,