Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression
by Baron John Campbell Campbell · English · Gutenberg #40076 · 829,518 chars · public domain (US)
The Project Gutenberg eBook of Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression
This eBook is for the use of anyone anywhere in the United States and
most other parts of the world at no cost and with almost no restrictions
whatsoever. You may copy it, give it away or re-use it under the terms
of the Project Gutenberg License included with this eBook or online
at www.gutenberg.org. If you are not located in the United States,
you will have to check the laws of the country where you are located
before using this eBook.
Title: Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression
Author: Baron John Campbell Campbell
Editor: Richard Hildreth
Release date: June 24, 2012 [eBook #40076]
Most recently updated: October 23, 2024
Language: English
Other information and formats: www.gutenberg.org/ebooks/40076
Credits: E-text prepared by Bryan Ness and the Online Distributed Proofreading Team (http://www.pgdp.net) from page images generously made available by the Google Books Library Project (http://books.google.com)
*** START OF THE PROJECT GUTENBERG EBOOK ATROCIOUS JUDGES : LIVES OF JUDGES INFAMOUS AS TOOLS OF TYRANTS AND INSTRUMENTS OF OPPRESSION ***
Note: Images of the original pages are available through
the the Google Books Library Project. See
http://books.google.com/books?vid=36y7s22Gn18C&id
Transcriber's note:
Text enclosed by underscores is in italics (_italics_).
ATROCIOUS JUDGES.
Lives of Judges Infamous As Tools of Tyrants and Instruments
of Oppression.
Compiled from the Judicial Biographies of
JOHN LORD CAMPBELL,
Lord Chief Justice of England.
With an Appendix, Containing the Case of Passmore Williamson.
Edited, with an Introduction and Notes, by Richard Hildreth.
New York and Auburn:
Miller, Orton & Mulligan.
New York: 25 Park Row.--Auburn: 107 Genesee Street.
1856.
Entered, according to Act of Congress, in the Year 1855, by
Richard Hildreth,
In the Clerk's Office of the District Court of the District of
Massachusetts.
Stereotyped at the
Boston Stereotype Foundry.
ADVERTISEMENT.
The text of the following BOOK OF JUDGES has been derived from Lord
Campbell's _Lives of the Chief Justices, and Lives of the Chancellors_,
with only a few verbal alterations for the sake of connection, some
transpositions, the omission of some details of less interest to the
American reader, and the insertion of a few paragraphs, enclosed in
brackets, thus [ ].
Most biographers have been arrant flatterers. Lord Campbell is a
distinguished member of that modern school, which holds that history is of
no dignity nor use, except so far as it is true; and that the truth is to
be told at all hazards and without reserve. Hitherto social and political
position, obtained no matter by what means, has in general secured not
only present but future reputation. It can hardly fail to be a serious
check upon those who struggle for distinction to understand, that,
however they may cheat or dazzle their contemporaries, they must expect to
encounter from posterity a Rhadamantine judgment.
The object of the present work, prepared as it is in the interest of
justice and freedom, and designed to hold up a mirror to magistrates now
sitting on the American bench, in which "to show virtue her own feature,
scorn her own image, and the very life and body of the time his form and
pressure," will, I hope, induce Lord Campbell to pardon the liberty I have
ventured to take with his writings.
R. H.
BOSTON, _November 20, 1855_.
CONTENTS.
INTRODUCTION.
The administration of justice the great end of government, page 9.
Polity of the Anglo-Saxons, 10. County courts, 12. Policy of the
Norman conquerors, 13. Their scheme for the administration of justice,
14. Aula Regis, or King's Court, 15. Law proceedings become a mystery,
16. Division of the Aula Regis, 18. King's Bench, 18. Common Pleas,
19. Exchequer, 19. Court of Chivalry, or Honor Court, 19. Origin of
the legal profession as it exists at present--Inns of Court, 20.
Special Pleadings, 21. Serjeants, Barristers, and Attorneys, 22.
Justices of the peace, 23. Appeals to Parliament, 24. Trial by jury,
25. Nisi prius trials, 27. Usurpations of the courts upon each other,
28. Court of Chancery, 30. Court of Admiralty, 31. Use of torture, 32.
Suits for slander in the Court of Chivalry, 33. The courts the ready
tools of executive usurpation, 34. Courts of Star Chamber and High
Commission, 34. Sources and object of the present compilation, 35.
Bearing of the following narratives on passing events, 35.
CHAPTER I.
ROGER LE BRABANCON.
His ancestry, page 37. Made a judge, 37. Edward I. claims sovereignty
over Scotland, 39. The family of Bruce, 40. Robert de Brus, 41.
Contest for the Scottish throne, 43. Brabancon maintains Edward's
claim, 44. Is rewarded with the office of chief justice, 47.
CHAPTER II.
ROBERT TRESILIAN.
Appointed chief justice, 48. Ready for any dirty work, 49. Judicial
opinion in favor of the arbitrary power of the King, 50. Preparations
for judicial murders, 53. The barons march on London, 54. Tresilian
appealed of high treason, 56. Found guilty, 57. Arrest and execution,
59.
CHAPTER III.
THOMAS BILLING.
Lancastrians and Yorkists, 61. Fortescue and Markham, 61. Removal of
Markham, 63. Billing a judge, 64. His infamous character, 64. His
previous life, 64. Begins a Lancastrian, 65. The Yorkists having
triumphed, becomes a Yorkist, 66. Made a judge, 67. Trial of Walker,
67. A court favorite, 68. Chief justice, 69. Trial of Sir Thomas
Burdett, 69. Lancastrian revolution, 71. Billing changes, and keeps
his place, 72. Yorkist revolution, 72. Billing changes again, and
keeps his place, 73. Procures a pardon for Fortescue, 73. His law
decisions, 74. Trial of the Duke of Clarence, 74. Billing's death, 75.
CHAPTER IV.
JOHN FITZJAMES.
A friend of Wolsey's, 76. Who makes him attorney general, 77.
Prosecution of Buckingham, 77. Made a judge, 77. Chief justice, 78.
Turns against Wolsey after his fall, 78. Ecclesiastical pretensions
of Henry VIII., 80. Trial of Fisher, 81. Trial of Sir Thomas More, 83.
Trials of the supposed gallants of Anne Boleyn, 85. Fitzjames's
opinion as to the mode of Anne Boleyn's execution, 85. His death, 85.
CHAPTER V.
THOMAS FLEMING.
A rival of Bacon's, 87. His origin and progress, 87. Solicitor
general, 88. Speaker of the House of Commons, 89. Bacon his rival
there, 90. Fleming chief baron of the Exchequer, 90. His judgment in
the case of impositions, 91. Made chief justice, 94. Case of the
Postnati, 94. Trial of the Countess of Shrewsbury, 95. Wholly eclipsed
by Sir Edward Coke, 95. His death, 96.
CHAPTER VI.
NICHOLAS HYDE.
Plan of Charles I. to rule without Parliaments, 97. Sir Randolph
Crewe, chief justice, discharged to make room for Hyde, 98. His family
and previous career, 98. Case of Sir Thomas Darnel, 99. Petition of
Right, 102. Hyde's opinion that it would not be binding on the king,
103. Proceedings against Selden and others, 103. Hyde's death, 106.
Much applauded by true courtiers, 106.
CHAPTER VII.
JOHN BRAMPSTON.
Charles I. perseveres in his arbitrary schemes, 107. Brampston's
previous life, 107. Appointed chief justice, 109. Contrast between his
personal and political character, 109. Opinion in favor of ship money,
110. Trial of Hampden, 111. Lord Say's case, 111. Trial of Rev. Thomas
Harrison, 112. Brampston as a Star Chamber judge, 113. Case of the
Bishop of Lincoln, 114. Long Parliament, 115. Brampston impeached,
116. Turns about on the question of ship money, 116. Parliament
appeased, 117. Summoned by Charles to join him at his camp, 117.
Superseded, 118. Death and character, 118.
CHAPTER VIII.
ROBERT HEATH.
His origin and high prerogative principles, 119. Solicitor general,
120. Attorney general, 121. His share in the trial of Darnel, 121.
Holds the petition of right illegal, 122. His part in the trial of
Selden and his followers, 123. Schemes for raising money, 125. Chief
justice of the Common Pleas, 126. His removal from office, 127.
Returns to practice, 128. Judge of the King's Bench, 128. Chief
justice, 129. His acts as such, 129. Flies to the continent, 131.
Death and character, 131.
CHAPTER IX.
ROBERT FOSTER.
Reorganization of the bench at the restoration, 132. Foster's early
life, 133. Judge of the Common Pleas, 134. Joins the king at Oxford,
134. Removed by Parliament, 134. Returns to practice, 134. Reappointed
a judge by Charles II., 134. Chief justice, 134. Trial of Vane, 135.
Case of John Crook, 138. Case of Tonge and others, 139. Death, 140.
CHAPTER X.
ROBERT HYDE.
His connections and early history, 142. A judge of the Common Pleas,
141. Chief justice of the King's Bench--his installation, 143. Trial
of a printer, 144. Trial of Keach for libel, 146. Introduces the
practice of fining juries, 150. Cried up as an eminent judge, 151.
Drops dead, 151.
CHAPTER XI.
JOHN KELYNGE.
Appointed a judge, 152. Previous career, 153. Conducts the prosecution
of Colonel Hacker, 154. Made chief justice over Sir Matthew Hale's
head, 156. His behavior, 156. Moorfields rioters held guilty of
treason, 157. American application of this doctrine, 158, _note_.
Treatment of juries, 159. Conduct investigated by the House of
Commons, 161. Tame for the rest of his days, 162. His reports, 162.
CHAPTER XII.
WILLIAM SCROGGS.
His early life, 163. Judge of the Common Pleas, 165. Chief justice of
the King's Bench, 166. Favors the Popish Plot delusion, 167. American
counterpart of that plot, 167, _note_. Trial of Godfrey, 168. Of
others, 169. Of Bromwich, 170. Scroggs changes his policy, 171.
Wakeman acquitted, 172. Scroggs attacked by the mob, 172. His defence,
173. Castlemaine acquitted, 175. Trial of Mrs. Collier, 175. Charges
to grand juries, 176. Attack on the press, 177. Conduct in
Shaftesbury's case, 178. Charges made to the Council against Scroggs,
178. His trial, 179. House of Commons inquires into his conduct, 180.
General characteristics, 181. Removal from office, 182. His subsequent
life, 183. His infamy, 184.
CHAPTER XIII.
FRANCIS NORTH.
His noble birth, 185. Early life, 186. A court keeper, 188. Called to
the bar, 189. His early practice, 189. A lickspittle, 193. A leader at
the bar, 194. Makes his fortune by avowing "loyal" principles, 195.
Solicitor general, 197. His practice, 198. His loves, 199. Marriage,
200. Insignificant as a member of Parliament, 200. Attorney general,
201. Fees in abundance, 202. Chief justice of the Common Pleas, 203.
Conduct on the bench, 203. Career as a politician, 206. Legal oracle
of the party of arbitrary power, 206. Proclamation against coffee
houses, 206. Petitioners and Abhorrers--North obstructs the right of
petition, 207. Parliamentary proceedings against him, 208. Draws a
declaration against the popular party, 209. Trial of College, the
Protestant joiner, 210. Proceedings against Shaftesbury, 212. Attack
on the municipal privileges of London, 216. North made lord
chancellor, 217. His disappointment and dissatisfaction, 219. Assists
at the inauguration of Saunders, 220. His conduct as a law reformer
and equity judge, 221. As a statesman, 223. Joins in the proceedings
against the charter of London, 224. Made a peer--Disfranchises many
towns, 226. Dismisses Burnet, 226. Rye house plot, 227. Jeffreys his
rival, 227. His mortifications, 229. Triumphs over Jeffreys in the
matter of the recusants, 230. Death of Charles II., 233. Continued in
office by James II., 234. Puts the seal to a questionable
proclamation, 235. Parliament meets, 236. North snubbed, 236. Clings
to office, 237. Still thwarted and browbeaten by Jeffreys, 237.
Further mortifications, 239. His dejection and misery, 240. Monmouth's
insurrection, 240. His conduct as to the prisoners, 241. Death and
character, 242. Jokes upon him, 244. His writings, 245. His method of
living, 245. His domestic relations, 246. Descendants, 247. His early
death, 247. His life by Roger North, 247.
CHAPTER XIV.
EDMUND SAUNDERS.
Motives of his appointment, 248. Early history, 248. Called to the
bar, 250. His practice, 251. His reports, 251. Not desirous of
preferment, 253. Counsel for the crown, 253. Advises a _quo warranto_
against the city of London, 256. Appointed chief justice, 256. His
conduct in the London case, 258. Judgment of the court pronounced by
Justice Jones, 260. Trial of Lord Grey, 260. Sudden death, 264. His
appearance and manners, 264. His reports, 266.
CHAPTER XV.
GEORGE JEFFREYS.
His parentage, 267. School days, 267. Scheme of becoming a great
lawyer, 268. A student at the Inner Temple, 268. Associates with the
popular leaders, 272. Extravagance and poverty, 272. Precocity, 272.
Admitted to the bar, 273. Difficulties and energy, 273. Marriage, 274.
Practises at the Old Bailey and London sessions, 275. His forensic
abilities, 275. Common serjeant of the city of London, 276. His
contrivances to get on, 277. Opens a communication with the court,
278. Recorder of London, 279. Repudiates the liberals, 280. His policy
as to the Popish Plot, 282. His sentences of death, 282. Conduct in a
libel case, 283. Made chief justice of Chester, 284. His overbearing
insolence, 285. Visits his father, 287. Proceedings against him in
Parliament, 287. Resigns his recordership, 288. Complimented by the
king, 289. Chairman of the Middlesex sessions, 289. Counsel for the
crown against Fitzharris, Plunkett, and College, 290. Takes part in
other Court prosecutions, 292. Rye house trials, 294. Appointed chief
justice, 298. Trial of Algernon Sidney, 298. Case of Sir Thomas
Armstrong, 300. Of Sir William Williams, 301. Charters fall like
Jericho, 302. Other trials before him, 303. Rules London with a rod of
iron, 303. Reappointed chief justice by James II., 304. Trial of Titus
Oates for perjury, 304. Baxter's trial, 305. Jeffreys raised to the
peerage, 308. He rivals North, 310. His bloody assize, 310. Lady
Lisle's trial, 311. Other incidents of the bloody assize, 314.
Proceedings at Bristol, 319. In Somersetshire, 322. Prideaux's case,
323. An apologist for Jeffreys, 323. Tutchin's case, _note_, 323.
James or Jeffreys? 324. Made lord chancellor, 326. Hangs an alderman,
328. Meeting of Parliament, 329. Scheme of dispensing with the test
act, 330. Opinions of the judges in favor of the dispensing power,
332. Embassy to the pope, 333. Court of High Commission revived, 333.
Its proceedings, 334. Lord Delamere's trial, 334. Proceedings against
the Fellows of Magdalen College, 337. Prosecution of the seven
bishops, 338. Rivals of Jeffreys, 341. Birth of the Pretender, 342.
William of Orange lands in England, 343. James attempts
reconciliation, 344. Advance of William, 345. James flies, 347. Terror
of Jeffreys, 348. Search for him, 349. His arrest, 351. Committed to
the Tower, 353. James seeks to make him a scapegoat, 355. Assailed by
the press, 356. Presented with a halter, 356. Petition against him,
357. His death, 358. Domestic life, 359. His descendants, 359. Person
and manners, 359. Merits as a civil judge, 360. Chancery reforms, 361.
His opinion in favor of allowing counsel to prisoners, 362. His infamy
deserved, 363.
CHAPTER XVI.
ROBERT WRIGHT.
His parentage, youth, vices, and marriage, 364. His practice, 365. His
pecuniary embarrassments and frauds, 365. Becomes a favorite of
Jeffreys, 366. Who makes him a judge, 368. Attends Jeffreys in his
bloody assize, 368. Made chief justice, 369. Orders an illegal
execution, 370. Aids in forcing Catholic fellows on Magdalen College,
371. Sits in the Court of High Commission, 373. Volunteers an
extrajudicial opinion in favor of the Declaration of Indulgence, 374.
Attempts to force it to be read at Serjeant's Inn Chapel, 374. Trial
of the seven bishops, 374. At first unmolested after William of Orange
lands, 386. Arrested, and dies in Newgate, 386. His profligacy, 387.
Necessity of exposing wicked judges, 387.
APPENDIX.--CASE OF PASSMORE WILLIAMSON, 389-432
INTRODUCTION
Hume observes, in his History of England, that "among a people who lived
in so simple a manner as the Anglo-Saxons, the judicial power is always of
greater importance than the legislative." The same comparison will hold
good even in communities far more advanced in civilization than the
Anglo-Saxons. It has indeed been well said that the great end of the
complicated machinery of the existing British government is to get twelve
men into a jury box. It might even be laid down as a general principle
that the freedom or servitude of a people will mainly depend upon the sort
of administration of justice which they have--especially of criminal
justice.
The whole course of British history will serve to justify this
observation, since it has not been so much by the aid of mercenary
soldiers, as by the assistance of lawyers and judges, that tyranny has
sought to introduce itself into that country. It is in the history of the
English courts, still more than in the history of the English Parliament,
that we are to trace the origin and growth of those popular rights and of
that idea of public liberty, propagated from England to America, and upon
which our Anglo-American free institutions are mainly founded.
The origin of British liberty, by an ancient, constant, and affectionate
tradition, has uniformly been traced back to the times of the
Anglo-Saxons. It was, however, by judicial, far more than by legislative
institutions, that among those progenitors of ours private rights and
public liberty were guarantied.
The smallest political subdivision among the Anglo-Saxons was the tything,
(_teothing_,) consisting of ten families, the members of which were
responsible for the good conduct of each other. The head man of this
community, denominated tything-elder, (_teothing ealdor_,) seems to have
acted as a kind of arbitrator in settling disputes about matters of a
trifling nature; but whether he had actually a court for administering
justice does not appear. Next in order came the hundred, (_hundrede_,) or,
as it was called in the north of England, the _wapentake_, in its original
constitution consisting of ten tythings, or a hundred families, associated
together by a similar bond of mutual responsibility. Its head man was
called the hundred's elder, (_hundredes ealdor_,) or simply reeve,
(_gerefa_,) that being the generic term for the officer of any district,
or indeed for any officer.[1] This gerefa, along with the bishop of the
diocese, acted as the presiding officer of the hundred court, which met
once at least every month, and had both civil and criminal jurisdiction,
and cognizance also of ecclesiastical causes, which were entitled to
precedence over every other business.
There was besides a shire or county court (_shir-gemot_) held twice every
year, or oftener if occasion required, convened by the sheriff,
(_shir-reeve_,) or, as he was sometimes also called, the alderman,
(_ealdor-man_,) who presided over it, assisted by the bishop. Here causes
were decided and business was transacted which affected the inhabitants of
several of the hundreds.
The highest court of all was that of the king, the Wittenagemot,
(_witan-gemot_,) in which he himself was present, attended by his
councillors, or _witan_. This body, which united the functions of a
legislative, judicial, and executive council, had no fixed times or place
of meeting, but was held as occasion required, wherever the king happened
to be. As to its judicial functions, it was in general only a court of
extraordinary resort; it being a rule of the Anglo-Saxon law that none
should apply for justice to the king unless he had first sought it in vain
in the local courts.[2]
Hence the hundred and county courts occupied by far the most conspicuous
position in the Anglo-Saxon judicial polity. The Anglo-Saxon shires, it
may be observed, having been originally principalities, nearly, if not
altogether, independent, but gradually united into one kingdom, were
rather tantamount to our Anglo-American states than to our counties, of
which the Saxon hundreds may be taken as the equivalent; the tythings
corresponding to our Anglo-American townships; while (to carry out the
parallel) the central authority of the king and the wittenagemot may be
considered as represented by our federal system generally.
But though the reeve and the bishop presided in the local Anglo-Saxon
courts, it was rather in the character of moderators than of judges; that
latter function being performed by the freeholders of the county, all of
whom, not less than the bishop and the reeve, had the right and were bound
to give their attendance at these courts.
"Suits," says Hume,[3] "were determined in a summary manner, without much
pleading, formality, or delay, by a majority of voices;[4] and the bishop
and alderman had no further authority than to keep order among the
freeholders, and interpose with their opinion."
These county courts, though traces of them are to be found in all the old
Teutonic states of Europe, became ultimately peculiar to England. None of
the feudal governments of continental Europe had any thing like them; and
Hume, with his usual sagacity, has remarked that perhaps this institution
had greater effects on the political system of England than has yet been
distinctly pointed out. By means of this institution, all the freeholders
were obliged to take a share in the conduct of affairs. Drawn from that
individual and independent state, so distinctive of the feudal system, and
so hostile to social order and the authority of law, they were made
members of a political combination, and were taught in the most effectual
manner the duty and advantages of civic obedience by being themselves
admitted to a share of civic authority. Perhaps, indeed, in this
Anglo-Saxon institution of hundred and county courts we are to seek the
origin of that system of local administration and self-government still
more fully carried out in America than in England, by which English and
Anglo-American institutions are so strongly distinguished from those of
Europe, and in the judicious combination of which with a central
administration, for matters of general concern, British and American
liberty, as a practical matter, mainly consists.
One of the first procedures of the Norman Conqueror, by way of fixing his
yoke upon the shoulders of the English people, was gradually to break down
and belittle this local administration of justice. He did not venture,
indeed, to abolish institutions so venerable and so popular, but he
artfully effected his purpose by other means. He began by separating the
civil and ecclesiastical jurisdictions. The bishops, according to a
fashion recently introduced on the continent, were authorized to hold
special courts of their own. These courts were at first limited to cases
in which ecclesiastical questions were involved, or to which clergymen
were parties but by the progress of an artful system of usurpations,
familiar to the courts of all ages and nations, they gradually extended
their authority to many purely lay matters, under pretence that there was
something about them of an ecclesiastical character. It was under this
pretence that the English ecclesiastical courts assumed jurisdiction of
the important matters of marriage and divorce, of wills, and of the
distribution of the personal property of intestates--a jurisdiction which
they still retain in England, and which, though we never had any
ecclesiastical courts in the United States of America, has left deep
traces upon our law and its administration as to these subjects.
In establishing these separate ecclesiastical courts, the Conqueror made a
serious departure from his leading idea of centralization; and he thereby
greatly contributed to build up a distinct theocratic power, which
afterwards, while intrenching on the rights of the laity, intrenched also
very seriously on the authority of his successors on the throne. But this
was a danger which either he did not foresee--since he possessed, though
his next successor relinquished it, the sole power of appointing
bishops--or which he overlooked in his anxiety to diminish the importance
of the old Saxon tribunals.
Both the civil and criminal authority of the local courts was greatly
curtailed. Their jurisdiction in criminal cases was restricted to small
matters, and even as to questions of property was limited to cases in
which the amount in dispute did not exceed forty shillings; though,
considering the superior weight of the shilling at that time, the greater
comparative value in those ages of the precious metals, and the poverty of
the country, this was still a considerable sum.
The general plan for the administration of justice of the Anglo-Norman
government was a court baron in each of the baronies into which the
kingdom was now parcelled out, to decide such controversies as arose
between the several vassals or subjects of the same barony. Hundred courts
and county courts still continued from the Saxon times, though with
restricted authority, to judge between the subjects of different baronies;
and a court composed of the king's great officers to give sentence among
the barons themselves. Of this court, which ultimately became known as
_Curia Regis_, (King's Court,) and sometimes as _Aula Regis_, (King's
Hall,) because it was held in the hall of the king's palace, and of its
instrumentality in extending the royal authority, Hume[5] gives the
following account: "The king himself often sat in his court, which always
attended his person: he there heard causes and pronounced judgment; and
though he was assisted by the advice of the other members, it is not to be
imagined that a decision could easily be obtained contrary to his
inclination or opinion.[6] In the king's absence, the chief justiciary
presided, who was the first magistrate of the state, and a kind of
viceroy, on whom depended all the civil affairs of the kingdom.[7] The
other chief officers of the crown, the constable, marshal, seneschal, or
steward, chamberlain, treasurer, and chancellor, were members, together
with such feudal barons as thought proper to attend, and the barons of the
exchequer, who at first were also feudal barons appointed by the king.
This court, which was sometimes called the King's Court, sometimes the
Court of Exchequer, judged in all causes, civil and criminal, and
comprehended the whole business which is now shared out among four
courts--the Chancery, the King's Bench, the Common Pleas, and the
Exchequer.
"Such an accumulation of powers was itself a great source of authority,
and rendered the jurisdiction of the court formidable to all the subjects;
but the turn which judicial trials took soon after the conquest served
still more to increase its authority, and to augment the royal
prerogatives. William, among the other violent changes which he attempted
and effected, had introduced the Norman law into England, had ordered all
the pleadings to be in that tongue, and had interwoven with the English
jurisprudence all the maxims and principles which the Normans, more
advanced in cultivation, and naturally litigious, were accustomed to
observe in the administration of justice.
"Law now became a science,[8] which at first fell entirely into the hands
of the Normans, and even after it was communicated to the English,
required so much study and application that the laity of those ignorant
ages were incapable of attaining it, and it was a mystery almost solely
confined to the clergy, and chiefly to the monks.
"The great officers of the crown, and the feudal barons who were military
men, found themselves unfit to penetrate into these obscurities; and
though they were entitled to a seat in the supreme judicature, the
business of the court was wholly managed by the chief justiciary and the
law barons, who were men appointed by the king, and entirely at his
disposal. This natural course of things was forwarded by the multiplicity
of business which flowed into that court, and which daily augmented by the
appeals from all the subordinate judicatures of the kingdom. For the great
power of the Conqueror established at first in England an authority which
the monarchs in France were not able to attain till the reign of St.
Louis, who lived near two centuries after: he empowered his court to
receive appeals both from the courts of barony and the county courts, and
by that means brought the administration of justice ultimately into the
hands of the sovereign.[9]
"And lest the expense or trouble of the journey to court should discourage
suitors and make them acquiesce in the decision of the inferior
judicatures, itinerant judges were afterwards established, who made their
circuits through the kingdom and tried all cases that were brought before
them. By this expedient the courts of barony were kept in awe, and if they
still preserved some influence it was only from the apprehensions which
the vassals might entertain of disobliging their superior by appealing
from his jurisdiction. But the county courts were much discredited and as
the freeholders were found ignorant of the intricate principles and forms
of the new law, the lawyers gradually brought all business before the
king's judges, and abandoned that convenient, simple, and popular
judicature."
The innovations of the Conqueror and his successors having reduced the old
local Anglo-Saxon tribunals to comparative insignificance, the whole
judicial authority, except that which had been seized upon by the
ecclesiastical courts, remained for a hundred and fifty years after the
conquest concentrated in the Aula Regis. But as Norman and Saxon became
thoroughly intermixed, with the first faint dawn of modern English liberty
the judicial power thus thoroughly centralized became again subdivided and
distributed, though in a manner very different from that of the Saxon
times.
The Anglo-Norman kings of England were perpetually on the move: the only
way of disposing of the products of the landed estates which scattered
over England afforded the main part of the royal revenue, was to go
thither with the royal household and consume it on the spot. Wherever the
king went, the Aula Regis followed, occasioning thereby great
inconvenience and delay to suitors. This was complained of as a grievance,
and the barons who extorted Magna Charta from their reluctant sovereign
insisted, among other things, that _Common Pleas_, that is, civil suits
between man and man, should be held in some certain place. It was in this
provision of Magna Charta that originated the English Court of Common
Pleas, which became fixed at Westminster Hall, the place of session of the
Aula Regis when the king was in the vicinity of London. This Court of
Common Pleas, or Common Bench as it was sometimes called, seems to have
been at first but a mere committee of the Aula Regis; and the
disintegration of that tribunal, thus begun, was, on the accession of
Edward I. in 1272, completed by its resolution into three or rather five
distinct tribunals.
Of these new courts, that which more immediately represented the Aula
Regis was the Court of King's Bench, which still continued to follow the
king and to be held in his presence. In the language of its process, such
is still supposed to be the case; but like the other English courts, it
has long since been fixed at Westminster Hall, and admits nobody to
participate in its proceedings save its own members--a chief justice, who,
though of inferior position in point of precedence, may be considered as
in some respects the successor of the chief justiciary, which office was
now abolished--and three or four puisne judges, the number having varied
at different times.
The Court of Common Pleas was now also organized like the King's Bench,
with a chief justice and three or four puisne judges. As this court had
exclusive jurisdiction of civil suits, (except those relating to marriage,
divorce, wills, tithes, and the distribution of the personal property of
intestates, which had been usurped by the ecclesiastical courts,) _Pleas
of the Crown_, that is, the criminal jurisprudence of the realm, (except
prosecutions for heresy, of which the ecclesiastical courts claimed
jurisdiction,) and also the hardly less important duty of superintending
the other tribunals, even the Common Pleas itself, and keeping them within
their due limits, was assigned to the King's Bench.
To a third court, that of Exchequer, of which, besides a chief baron and
three or four puisne barons, the treasurer and the chancellor of the
exchequer originally formed a part, were assigned all cases touching the
king's revenue, and especially the collection of debts due to him, in
which light were regarded not only all fines, forfeitures, and feudal
dues, but the imposts and aids occasionally granted by Parliament.
There was also a Court of Chivalry or "Honor Court," presided over by the
constable and marshal, and having jurisdiction of all questions touching
rank and precedency; and another, over which the steward of the household
presided, to regulate the king's domestic servants; but these courts,
which have long since vanished, could never be considered as having stood
on a par with the three others, the judges of which esteemed themselves
the grand depositaries of the knowledge of the common or unwritten law of
England; that is, of such customs and forms as had obtained the force of
law previous to the existence of the regular series of statutes beginning
with Magna Charta. Indeed, these judges of England, as they were called,
were in the habit of meeting together in the Exchequer Chamber, for the
purpose of hearing arguments on law points of importance or difficulty,
adjourned thither for their consideration, and which they decided by a
majority of their whole number present, thus presenting down to the recent
abolition, or rather modification, of the Court of Exchequer Chamber, a
shadow, as it were, of the ancient Aula Regis.
Already, previous to this fracture of the Aula Regis into the various
courts above named, the legal profession, so far as practice in the lay
courts was concerned, had begun to separate itself from the clerical; and
places for the education and residence of a class of laymen who began to
devote themselves to the study of the common law were established in the
vicinity of Westminster Hall. Of these, Lincoln's Inn, founded at the
commencement of the reign of Edward II., (about A. D. 1307,) under the
patronage of William Earl of Lincoln, who gave up his own hostel or town
residence for that purpose, was the earliest, and has always remained the
principal. On this model were established before long the Inner and Middle
Temple, (so called because a residence of the Knights Templars, forfeited
by the dissolution of that order, had been devoted to this purpose,)
Gray's Inn, Serjeant's Inn, and the Inns of Chancery.
Such was the origin of the profession of law as it still exists in England
and America; of that body of lawyers whence all our judges are taken,
arrogating to itself, after the example of the churchmen, of which it
originally consisted, a certain mystical enlightenment and superiority,
scouting the idea that the laity, as the lawyers too affect to distinguish
all persons not of their cloth,--in plain English, _the people_,--should
presume to express or to entertain any independent opinion upon matters of
law, or that any body not a professional lawyer can possibly be qualified
for the comprehension, and much less for the administration, of justice.
In the Anglo-Saxon courts the parties had appeared personally, and
pleadings had been oral. The Anglo-Norman practice gave rise to appearance
by attorney in all civil cases, and to that system of special written
pleadings, prepared by counsel learned in the law, of which the operation
was to give the victory to ingenuity and learning rather than to right,
and which, after undergoing many modifications, has at length been
abolished in many of our Anglo-American states, as an impediment to
justice and an intolerable nuisance. Even in conservative England itself,
though the system of special pleadings, greatly modified by modern
changes, still exists, the recent return, by the examination of the
parties, to the old popular system of oral pleading has been attended by
the happiest results.
The preparation of these written pleadings, by which we are here to
understand not arguments, but allegations of facts relied upon by the
respective parties, was engrossed by the serjeants at law, whose
distinguishing badge was a coif or velvet cap--wigs being a comparatively
modern invention. To obtain admittance into this order, by which the
entire practice of the Court of Common Pleas was engrossed, (that is,
originally, the entire practice in civil suits,) and from which the judges
were exclusively selected, sixteen years' study was required. The degree
of barrister, or, as it was called, of apprentice, might be obtained by
seven years' study; and it was to these two classes of serjeants and
apprentices that the practice in the courts of Westminster Hall was
originally confined.[10] But subsequently there sprang up a third inferior
and still more numerous class, called attorneys, a sort of middle-men
between the client and his counsel, not permitted to speak in court, for
which purpose they must retain a serjeant or barrister, but upon whom was
shifted off all the drudgery and responsibility of preparing the case, in
which, however, no step of consequence could be taken without the advice
of counsel learned in the law, _i. e._, a serjeant or barrister.[11]
As the law and its practice thus became more and more a mystery, only to
be learned by frequenting the courts of Westminster Hall, and by the study
of the obscure and ill-prepared reports of their proceedings, which began
now to be compiled by official reporters, and published under the name of
Year Books, the old local Anglo-Saxon courts fell still more into
contempt. Already in the reign of Henry III. the freeholders had been
released from their obligation of attendance upon them, and another blow
was given to these ancient tribunals when, in the reign of Edward II., the
appointment of sheriffs, hitherto chosen by the freeholders, was assumed
by the crown; and still another when, in the following reign, the election
of conservators of the peace was also taken from the people and assumed by
the king. To the magistrates thus appointed by the king the new name of
Justices of the Peace was soon afterwards given, and the criminal
jurisdiction conferred upon them, whether acting singly as examining and
committing magistrates, or met together at the courts of Quarter Sessions,
gradually superseded the small remains of criminal authority hitherto left
to the old popular tribunals.
Two circumstances, however, combined to transfuse a certain portion of the
spirit of these old tribunals into the newly established courts, thus
standing in the way of the entire monopoly of the administration of
justice at which the lawyers aimed, and securing to the body of the people
a certain participation in the most important function of the government,
to wit, the administration of justice; which participation, derived from
the old Anglo-Saxon customs, and transmitted to our times, constitutes
to-day the main pillar of both British and American liberty.
Contemporaneously with the new organization above described of the courts
of common law, the British Parliament had taken upon itself that
organization which it still retains--an upper house, (House of Lords,)
composed of great nobles and bishops,[12] successor of the Anglo-Saxon
Wittenagemote and of the Anglo-Norman Great Council, and a lower house,
(House of Commons,) in which met together the elected representatives of
the smaller landed proprietors, holding by knight's service immediately of
the crown, (knights of the shire,) together with the newly-admitted
representatives of the cities and chief towns, (burgesses.) The Parliament
thus constituted claimed and exercised, probably as successor of the
Wittenagemote, appellate jurisdiction from the decisions of all the courts
of law. In the time of Edward III. it was even a common practice for the
judges, when any question of difficulty arose in their several courts, to
take the advice of Parliament on it before giving judgment. Thus in a case
mentioned in the Year Book, 40 Ed. III., Thorpe, chief justice of the
King's Bench, went with another judge to the House of Lords, to inquire
the meaning and effect of a law they had just passed for amending the
system of pleadings;[13] and many other instances occur of the same sort.
This appellate power vesting in Parliament from the decisions of all the
courts was the first of the circumstances above alluded to as serving to
prevent the monopoly of the administration of justice by the lawyers. But
this check with the process of time has almost entirely disappeared. In
England this appellate power in Parliament has long since fallen into the
hands exclusively of the House of Lords, who themselves in giving judgment
are ordinarily only the mouthpiece of the judges called in to give their
advice. In what are now the United States of America the same appellate
jurisdiction was originally exercised by the colonial assemblies. With
us, however, it has entirely vanished under the influence of the idea of a
total separation of the legislative, executive, and judicial functions.
The other, and by far the most important check upon the monopoly of the
lawyers, was the introduction and gradual perfecting of the trial by jury,
by which the more ancient methods--the compurgation and ordeal of the
Anglo-Saxons, and the trial by battle, the favorite method of the
Anglo-Normans--were entirely superseded. The history of the trial by jury
is exceedingly obscure. The petit jury may, however, be traced back to the
old Anglo-Saxon method of trial by compurgation, the jury in its origin
being only a body of witnesses drawn from the vicinage, who founded their
verdict not upon the evidence of witnesses given before them, but upon
their own personal knowledge of the matters in dispute.[14]
The grand jury seems to have originated in the old Anglo-Saxon custom
imbodied in one of the laws of Ethelred, by which was imposed upon the
twelve senior thanes of every hundred the duty of discovering and
presenting the perpetrators of all crimes within their district--a custom
revived by the constitution of Clarendon, enacted A. D. 1164, by which
twelve lawful men of the neighborhood were to be sworn by the sheriff, on
the requisition of the bishop, to investigate all cases of suspected
criminality as to which no individual dared to make an accusation. At
first this accusing jury seems also to have served the purpose of a jury
of trial. In what way the grand jury came to be separated from the petit
jury, and how the former came to be increased to a number not exceeding
twenty-three, of whom at least twelve must concur in order to find an
indictment, is a point which still remains for the investigation of legal
antiquaries.[15]
The trial by jury, though of the progress of its development little is
known, appears to have taken on substantially its existing form, both in
civil and criminal cases, nearly contemporaneously with the new
organization of the English courts, with the rise of the legal profession
as distinct from that of the clergy, and with the commencement of the
series of English statutes and law reports--all of which, as well as the
existing constitution of the British House of Commons, may be considered
as dating from the accession of Edward I., A. D. 1272, or somewhat less
than six hundred years ago. In certain cases of great importance this
trial took place and still takes place in bank, as it is called; that is,
in Westminster Hall, before all the judges of the court in which the suit
is pending;[16] but in general, the trial is had in the county in which
(if a criminal case) the offence had been committed, or (if a civil case)
in which the venue is laid, before certain commissioners sent into the
counties for that purpose, and who, under the new system, were the
successors of the justices in eyre, or itinerant justices, who had formed
a part of the ancient Aula Regis. Originally, separate commissions appear
to have issued for criminal and civil cases--for the former a commission
of oyer and terminer, (to hear and determine,) and of general jail
delivery; and for the latter a commission of assize, so called from the
name of a peculiar kind of jury trial introduced as a substitute for trial
by battle, in real actions, that is, pleas relating to land, villainage,
and advowsons. In the times in which land, villains, and the right of
presentation to parishes, constituted the chief wealth, these real actions
constituted also the chief business of the Common Pleas, which then had
exclusive jurisdiction of civil controversies; but to this commission of
assize was annexed another, called a commission of _nisi prius_,
authorizing the commissioners to try all questions of fact arising in any
of the courts of Westminster. This latter commission was so called because
the writ issued to the sheriff of the county in which the cause of action
was alleged to have originated, to summon a jury to try the case, directed
such jury to be summoned to appear at Westminster on a day named, unless
before (in Latin, _nisi prius_) that day commissioners should come into
the county to try the case there. Hence the term _nisi prius_ employed by
lawyers to designate a trial by jury before one or more judges,
commissioned to hold such trials within certain circuits, but whose
directions to the jury, and other points of law decided by them in the
course of the trial, are liable afterwards to be reviewed by the whole
bench.
Ultimately these commissions for both criminal and civil trials were given
to the same persons, who also received a commission of the peace; and the
whole territory of England being divided into six circuits, two of the
judges, to whom other assessors were added, held assizes twice a year in
each county,[17] for the trial of issues found in Westminster Hall--a
system closely imitated in all our American states.
But the distribution of authority above described as having been
originally made to the different courts of Westminster Hall, into which
the Aula Regis was divided, did not long remain undisturbed. Courts have
at all times, and every where, exhibited a great disposition to extend
their jurisdiction, of which we have already had an example in the
authority over marriages, wills, and the personal property of intestates,
assumed by the English ecclesiastical courts; and considering the double
jurisdiction under which we citizens of the United States live,--that of
the federal and that of the state courts,--and the disposition so strongly
and perseveringly exhibited by the federal courts to enhance their
authority, while the state courts continue to grow weaker and tamer, this
is, to us, a subject of no little interest.
Besides the general love of extending their jurisdiction characteristic of
all courts, and indeed only one of the manifestations of the universal
passion for power, the English Courts of King's Bench and Exchequer had a
special motive for seeking to encroach on the exclusive civil jurisdiction
of the Common Pleas. The salaries of the judges were very
small--originally only sixty marks, equal to £40 sterling, or about $200
a year; nor was their amount materially increased down to quite recent
times; but to this small salary were added fees paid by the parties to the
cases tried before them; and the judges of the two other courts were very
anxious to share with their brethren of the Common Pleas a part of the
rich harvest which their monopoly of civil cases enabled them to reap from
that source. Not only did the Court of King's Bench start the idea that
all suits in which damages were claimed for injuries to person or
property, attended by violence or fraud, came properly within its
jurisdiction as "savoring of criminality;" it found another reason for
extending its jurisdiction, by suggesting that when a person was in the
custody of its officers, he could not, with a due regard to "legal
comity," be sued on any personal claim in any other court, since that
might result in his being taken out of the hands of their officer who
already had him in custody, and was entitled to keep him. If any body had
any claim against such a person, (such was the position plausibly set up,)
it ought to be tried before the court in whose custody he already was.
Having thus prepared the way, the Court of King's Bench did not stop here;
but by a fiction, introduced into the process with which the suit was
commenced, that the defendant was already in the custody of their marshal
for a fictitious trespass which he was not allowed to deny, jurisdiction
was gradually assumed in all private suits except real actions.
The Court of Exchequer in like manner claimed exclusive jurisdiction of
suits for debt brought by the king's debtors, since by neglecting to pay
them they might be prevented from paying their debts to the king; and
under the pretence, which nobody was allowed to dispute, that all
plaintiffs were the king's debtors, that court, too, gave an extent to
their jurisdiction similar to that of the King's Bench. The exclusive
jurisdiction of real actions, which alone remained to the Common Pleas, by
the disappearance of villainage and the great increase of personal
property, every day declined in importance; but even this was at last
taken from the Common Pleas by the invention of Chief Justice Rolle,
during the time of the Commonwealth, of the action of ejectment, which
proceeds from beginning to end upon assumptions entirely fictitious, but
which by its greater convenience entirely superseded real actions in
England and in most of the Anglo-American States.
But while these three common law courts were thus exercising their
ingenuity to intrench upon each other's jurisdiction, their pertinacious
adherence to powers and technicalities, and their unwillingness, except in
matters where the alleged prerogative of the crown was concerned, to do
any thing not sanctioned by precedent, led them to refuse justice or
relief to private suitors in many crying cases. Such cases still continued
to be brought by petition before the king, and by him were referred to his
chancellor, who in the earlier times was commonly his confessor, and who
since the abolition of the office of chief justiciary had become the first
official of the realm. Undertaking in these cases to prevent a failure of
justice by rising above the narrow technicalities of the common law, and
guided by the general principles of equity and good conscience, the
chancellor gradually assumed a most important jurisdiction, which in civil
matters ultimately raised his court to a rank and importance above that of
all the others. With the advance indeed of wealth and civilization,
appeals to chancery became more and more frequent; and if the common law
courts had not altered their policy, and adopted upon many points
equitable ideas, it seems probable that so far as civil suits were
concerned, those courts would long since have been superseded
altogether.[18] What indeed of and the practice in the Equity Court
entirely into the hands of lawyers bred in Westminster Hall, by whom
equity itself was made subservient to precedent, and the whole procedure
involved in forms and technicalities even more dilatory and expensive than
those of the common law courts.
The same disinclination on the part of these common law courts to go
beyond the strict limit of technical routine, led, with the progress of
commerce and navigation, to the erection, in the time of Edward III., of
the Admiralty Court, mainly for the trial of injuries and offences
committed on the high seas, of which, on technical grounds, the courts of
common law declined to take jurisdiction. After the foundation of English
colonies,[19] branches of this court, to which also was given an exchequer
jurisdiction, were established in the colonies, and on that model have
been formed our federal District Courts.
While the common law courts, through their preference of technicalities to
justice, thus enabled the chancellors to assume a civil jurisdiction by
which they themselves were completely overshadowed, driving the Parliament
also to the necessity of creating, for both civil and criminal matters, a
new Court of Admiralty,[20] they gave at the same time the support of
their acquiescence and silence to other innovations, prompted not by
public convenience, but by the very spirit of tyranny.
In every reign, at least from the time of Henry VI. down to that of
Charles I., torture to extort confessions from those charged with state
crimes was practised under warrants from the Privy Council. In the year
1615, by the advice of Lord Bacon, then attorney general, the lustre of
whose philosophical reputation is so sadly dimmed by the infamy of his
professional career, torture of the most ruthless character was employed
upon the person of Peacham, a clergyman between sixty and seventy years of
age, to extort confessions which might be used against him in a trial for
treason, as to his intentions in composing a manuscript sermon not
preached nor shown to any body, but found on searching his study, some
passages of which were regarded as treasonable, because they encouraged
resistance to illegal taxes. Thirteen years afterwards, when it was
proposed to torture Fenton, the assassin of Villiers, Duke of Buckingham,
to extort from him a confession of his accomplices, the prisoner suggested
that if tortured he might perhaps accuse Archbishop Laud himself. Upon
this, some question arose as to the legality of torture; and the judges
being called upon for their advice, thus at length driven to speak,
delivered a unanimous opinion that the prisoner ought not to be tortured,
because no such punishment was known or allowed by the English law; which
English law, it now appeared, had for two hundred years been
systematically disregarded under the eye and by the advice of judges and
sworn lawyers, members of the Privy Council, and without any protest or
interference on the part of the courts!
Another instance of similar acquiescence occurred in regard to the Court
of Chivalry, which in the reign of Charles I. undertook to assume
jurisdiction in the case of words spoken. Thus a citizen was ruinously
fined by that court because, in an altercation with an insolent waterman,
who wished to impose upon him, he deridingly called the swan on his badge
a "goose." The case was brought within the jurisdiction of the court, by
showing that the waterman was an earl's servant, and that the swan was the
earl's crest, the heavy fine being grounded on the alleged "dishonoring"
by the citizen of this nobleman's crest. A tailor, who had often very
submissively asked payment of his bill from a customer of "gentle blood"
whose pedigree was duly registered at the herald's college, on a threat of
personal violence for his importunity, was provoked into saying that "he
was as good a man as his debtor." For this offence, which was alleged to
be a levelling attack upon the aristocracy, he was summoned before the
earl marshal's court, and mercifully dismissed with a reprimand--_on
releasing the debt_!
No aid could be obtained from the common law courts against this
scandalous usurpation, by which, without any trial by jury, enormous
damages were given.[21] Legal "comity" perhaps prevented any interference.
Presently, however, the long Parliament met, and a single resolution of
that body stopped forever this usurpation.
But while a scrupulous adherence to technicalities and to legal etiquette
prevented the common law courts, on the one hand, from doing justice in
private cases, and on the other from guarding the subject against official
injuries and usurpations, they showed themselves, as the following
biographies will prove, the ready and willing tools on all occasions of
every executive usurpation. If the people of Great Britain and America are
not at this moment slaves, most certainly, as the following biographies
will prove, it is not courts nor lawyers that they have to thank for it.
How essential to liberty is the popular element in the administration of
criminal law--how absolutely necessary is the restraint of a jury in
criminal cases--was most abundantly proved by the proceedings of the
English courts of Star Chamber and High Commission. The Court of Star
Chamber, though of very ancient origin, derived its chief importance from
statutes of Henry VII. and Henry VIII., by which it was invested with a
discretionary authority to fine and imprison in all cases not provided for
by existing laws, being thus erected, according to the boasts of Coke and
Bacon, into a "court of criminal equity." The Court of High Commission,
whose jurisdiction was mainly limited to clergymen, was created by a
statute of Elizabeth as the depository of the ecclesiastical authority as
head of the church assumed after the reformation by the English
sovereigns. Both these courts consisted of high officers of the crown,
including judges and crown lawyers; and though not authorized to touch
life or member, they became such instruments of tyranny as to make their
abolition one of the first things done after the meeting of the Long
Parliament. The only American parallel to these courts is to be found in
the authority conferred by the fugitive act of 1850, upon certain
commissioners of the Circuit Court of the United States, to seize and
deliver over to slavery peaceable residents in their respective states,
without a jury, and without appeal.
History is philosophy teaching by example. From what judges have attempted
and have done in times past, and in England, we may draw some pretty
shrewd conclusions as to what, if unchecked, they may attempt, and may do,
in times present, and in America. Nor let any man say that the following
pages present a collection of judicial portraits distorted and caricatured
to serve an occasion. They have been borrowed, word for word, from the
_Lives_ of the Chief Justices and of the Chancellors of England, by Lord
Campbell, himself a lawyer and a judge, and though a liberal-minded and
free-spoken man, by no means without quite a sufficient share of the
_esprit du corps_ of the profession. Derived from such a source, not only
may the facts stated in the following biographies be relied upon, but the
expressions of opinion upon points of law are entitled to all the weight
of high professional authority.
Nor let it be said that these biographies relate to ancient times, and can
have no parallelism, or but little, to the present state of affairs among
us here in America. The times which they include are the times of the
struggle in Great Britain between the ideas of free government and
attempts at the establishment of despotism; and that struggle is precisely
the one now going on among us here in America, with this sole difference,
that over the water, among our British forefathers, it was the despotism
of a monarch that was sought to be established; here in America, the
despotism of some two hundred thousand petty tyrants, more or less, in the
shape of so many slaveholders, who, not content with lording it over their
several plantations, are now attempting, by combination among themselves,
and by the aid of a body of northern tools and mercenaries, such as
despots always find, to lord it over the Union, and to establish the
policy of slaveholding as that of the nation. In Great Britain, the
struggle between despotism and free institutions closed with the
revolution of 1688, with which these biographies terminate. Since that
time the politics of that country have consisted of hardly more than of
jostlings between the Ins and the Outs, with no very material variance
between them in their social ideas. Among us the great struggle between
slaveholding despotism and republican equality has but lately come to a
head, and yet remains undetermined. It exhibits, especially in the conduct
of the courts and the lawyers, many parallels to the similar struggle
formerly carried on in Great Britain. That struggle terminated at last
with the deposition and banishment of the Stuart family, and the
reëstablishment in full vigor of the ancient liberties of England, as
embodied in the Bill of Rights. And so may ours terminate, in the
reduction of those who, not content with being brethren seek to be
masters, to the republican level of equal and common citizenship, and in
the reëstablishment of emancipation, freedom, and the Rights of Man
proclaimed in our Declaration of Independence, as the national and eternal
policy of these United States!
ATROCIOUS JUDGES.
CHAPTER I.
ROGER LE BRABACON.
Roger le Brabacon,[22] from the part he took in settling the disputed
claim to the crown of Scotland, is an historical character. His ancestor,
celebrated as "the great warrior," had accompanied the Conqueror in the
invasion of England, and was chief of one of those bands of mercenary
soldiers then well known in Europe under the names (for what reason
historians are not agreed) of Routiers, Cottereaux, or _Brabançons_.[23]
Being rewarded with large possessions in the counties of Surrey and
Leicester, he founded a family which flourished several centuries in
England, and is now represented in the male line by an Irish peer, the
tenth Earl of Meath. The subject of the present sketch, fifth in descent
from "the great warrior," changed the military ardor of his race for a
desire to gain distinction as a lawyer. He was regularly trained in all
the learning of "Essions" and "Assizes," and he had extensive practice as
an advocate under Lord Chief Justice de Hengham. On the sweeping removal
of almost all of the judges in the year 1290,[24] he was knighted, and
appointed a puisne justice of the King's Bench, with a salary--which one
would have thought must have been a very small addition to the profits of
his hereditary estates of 33_l._ 6_s._ 8_d._ a year. He proved a most
admirable judge;[25] and, in addition to his professional knowledge, being
well versed in historical lore, he was frequently referred to by the
government when negotiations were going on with foreign states.
Edward I., arbitrator by mutual consent between the aspirants to the crown
of Scotland, resolved to set up a claim for himself as liege lord of that
kingdom, and Brabacon was employed, by searching ancient records, to find
out any plausible grounds on which the claim could be supported. He
accordingly travelled diligently both through the Saxon and Norman period,
and--by making the most of military advantages obtained by kings of
England over kings of Scotland, by misrepresenting the nature of homage
which the latter had paid to the former for possessions held by them in
England, and by blazoning the acknowledgment of feudal subjection extorted
by Henry II. from William the Lion when that prince was in captivity,
without mentioning the express renunciation of it by Richard I.--he made
out a case which gave high delight to the English court. Edward
immediately summoned a Parliament to meet at Norham, on the south bank of
the Tweed, marched thither at the head of a considerable military force,
and carried Mr. Justice Brabacon along with him as the exponent and
defender of his new _suzeraineté_.
It is a little curious that one of these competitors for the Scottish
throne had lately been an English judge, and a competitor for the very
place to which Brabacon, for his services on this occasion, was presently
promoted.
From the time of William the Conqueror and Malcolm Canmore, until the
desolating wars occasioned by the dispute respecting the right of
succession to the Scottish crown, England and Scotland were almost
perpetually at peace; and there was a most familiar and friendly
intercourse between the two kingdoms, insomuch that nobles often held
possession in both, and not unfrequently passed from the service of the
one government into that of the other. The Norman knights, having
conquered England by the sword, in the course of a few generations got
possession of a great part of Scotland by marriage. They were far more
refined and accomplished than the Caledonian thanes; and, flocking to the
court of the Scottish kings, where they made themselves agreeable by their
skill in the tournament, and in singing romances, they softened the hearts
and won the hands of all the heiresses. Hence the Scottish nobility are
almost all of Norman extraction; and most of the great families in that
kingdom are to be traced to the union of a Celtic heiress with a Norman
knight. Robert de Brus, or Bruis, (in modern times spelt _Bruce_,) was one
of the companions of the Conqueror; and having particularly distinguished
himself in the battle of Hastings, his prowess was rewarded with no fewer
than ninety-four lordships, of which Skelton, in Yorkshire, was the
principal. Robert, the son of the first Robert de Brus, married early, and
had a son, Adam, who continued the line of De Brus of Skelton. But
becoming a widower while still a young man, to assuage his grief, he paid
a visit to Alexander I., then King of Scots, who was keeping his court at
Stirling. There the beautiful heiress of the immense lordship of
Annandale, one of the most considerable fiefs held of the crown, fell in
love with him; and in due time he led her to the altar. A Scottish branch
of the family of De Brus was thus founded under the designation of Lords
of Annandale. The fourth in succession was "Robert the Noble," and he
raised the family to much greater consequence by a royal alliance, for he
married Isabel, the second daughter of Prince David, Earl of Huntingdon,
grandson of David I., sometimes called St. David.
Robert, son of "Robert the Noble" and the Scottish princess, was born at
the Castle of Lochmaben, about the year 1224. The Skelton branch of the
family still flourished, although it became extinct in the next
generation. At this time a close intercourse was kept up between "Robert
the Noble" and his Yorkshire cousins; and he sent his heir to be educated
in the south under their auspices. It is supposed that the youth studied
at Oxford; but this does not rest on any certain authority. In 1245, his
father died, and he succeeded to the lordship of Annandale. One would have
expected that he would now have settled on his feudal principality,
exercising the rights of _furca et fossa_, or "pit and gallows," which he
possessed without any limit over his vassals; but by his English education
he had become quite an Englishman, and, paying only very rare visits to
Annandale, he sought preferment at the court of Henry III. What surprises
us still more is, that he took to the gown, not the sword; and instead of
being a great warrior, like his forefathers and his descendants, his
ambition seems to have been to acquire the reputation of a great lawyer.
There can be little doubt that he practised as an advocate in Westminster
Hall from 1245 till 1250. In the latter year we certainly know that he
took his seat on the bench as a puisne judge, or justiciar; and, from
thence till 1263, extant records prove that payments were made for assizes
to be taken before him--that he acted with other justiciars in the levying
of fines--and that he went circuits as senior judge of assize. In the 46th
year of Henry III. he had a grant of 40_l._ a year salary, which one would
have supposed could not have been a great object to the Lord of Annandale.
In the barons' wars, he was always true to the king; and although he had
no taste for the military art, he accompanied his royal master into the
field, and was taken prisoner with him at the battle of Lewes.
The royal authority being reëstablished by the victory at Evesham, he
resumed his functions as a puisne judge; and for two years more there are
entries proving that he continued to act in that capacity. At last, on the
8th of March, 1268, 52 Henry III., he was appointed "capitalis
justiciarius ad placita coram rege tenenda," (chief justiciary for holding
pleas before the king); but unless his fees or presents were very high, he
must have found the reward of his labors in his judicial dignity, for his
salary was very small. Hugh Bigod and Hugh le Despencer had received 1000
marks a year, "ad se sustentandum in officio capitalis justitiarii
Angliæ," (for sustaining themselves in the office of chief justice of
England,) but Chief Justice de Brus was reduced to 100 marks a year; that
is, 66_l._ 13_s._ 4_d._ Yet such delight did he take in playing the judge,
that he quietly submitted both to loss of power and loss of profit.
He remained chief justice till the conclusion of this reign, a period of
four years and a half, during which he alternately went circuits and
presided in Westminster Hall. None of his decisions have come down to us,
and we are very imperfectly informed respecting the nature of the cases
which came before him. The boundaries of jurisdiction between the
Parliament, the Aula Regis, and the rising tribunal afterwards called the
Court of King's Bench, seem to have been then very much undefined.
On the demise of the crown, Robert de Brus was desirous of being
reappointed. He was so much mortified by being passed over, that he
resolved to renounce England forever; and he would not even wait to pay
his duty to Edward I., now returning from the holy wars.
The ex-chief justice posted off for his native country, and established
himself in his castle of Lochmaben, where he amused himself by sitting in
person in his court baron, and where all that he laid down was, no doubt,
heard with reverence, however lightly his law might have been dealt with
in Westminster Hall. Occasionally he paid visits to the court of his
kinsman, Alexander III., but he does not appear to have taken any part in
Scottish politics till the untimely death of that monarch, which, from a
state of peace and prosperity, plunged the country into confusion and
misery.
There was now only the life of an infant female, residing in a distant
land, between him and his plausible claim to the Scottish crown. He was
nominated one of the negotiators for settling the marriage between her and
the son of Edward I., which, if it had taken place, would have entirely
changed the history of the island of Great Britain. From his intimate
knowledge both of Scotland and England, it is probable that the "Articles"
were chiefly of his framing, and it must be allowed that they are just and
equitable. For his own interest, as well as for the independence of his
native country, he took care to stipulate that, "failing Margaret and her
issue, the kingdom of Scotland should return to the nearest heirs, to whom
of right it ought to return, wholly, freely, absolutely, and without any
subjection."
The Maid of Norway having died on her voyage home, the ex-chief justice
immediately appeared at Perth with a formidable retinue, and was in hopes
of being immediately crowned king at Scone;--and he had nearly
accomplished his object, for John Baliol, his most formidable competitor
in point of right, always feeble and remiss in action, was absent in
England. But, from the vain wish to prevent future disputes by a solemn
decision of the controversy after all parties should have been heard, the
Scotch nobility in an evil hour agreed to refer it, according to the
fashion of the age, to the arbitration of a neighboring sovereign, and
fixed upon Edward I. of England, their wily neighbor. The Scottish nobles
being induced to cross the River Tweed, and to assemble in the presence of
Edward, under pretence that he was to act only as arbitrator, Sir Roger de
Brabacon by his order addressed them in French, (the language then spoken
by the upper classes both in Scotland and England,) disclosing the
alarming pretensions about to be set up.
A public notary and witnesses were in attendance, and in their presence
the assumed vassals were formally called upon to do homage to Edward as
their _suzerain_, of which a record was to be made for a lasting memorial.
The Scots saw too late the imprudence of which they had been guilty in
choosing such a crafty and powerful arbitrator. For the present they
refused the required recognition, saying that "they must have time for
deliberation, and to consult the absent members of their different
orders." Brabacon, after advising with the king, consented that they
should have time until the following day, and no longer. They insisted on
further delay, and showed such a determined spirit of resistance, that
their request was granted and the first day of June following was fixed
for the ceremony of the recognition. Brabacon allowed them to depart; and
a copy of his paper, containing the proofs of the alleged _superiority_
and _direct dominion_ of the English kings over Scotland, was put into
their hands. He then returned to the south, where his presence was
required to assist in the administration of justice, leaving the
Chancellor Burnel to complete the transaction. Although the body of the
Scottish nobles, as well as the body of the Scottish people, would
resolutely have withstood the demand, the competitors for the throne, in
the hopes of gaining Edward's favor, successively acknowledged him as
their liege lord, and their example was followed by almost the whole of
those who then constituted the Scottish Parliament.[26]
Bruce afterwards pleaded his own cause with great dexterity, and many
supposed that he would succeed. Upon the doctrine of _representation_,
which is familiar to us, Baliol seems clearly to have the better claim, as
he was descended from the eldest daughter of the Earl of Huntingdon: but
Bruce was one degree nearer the common stock; and this doctrine, which was
not then firmly established, had never been applied to the descent of the
crown.
When Edward I. determined in favor of Baliol, influenced probably less by
the arguments in his favor than by the consideration that from the
weakness of his character he was likely to be a more submissive vassal,
Robert de Brus complained bitterly that he was wronged, and resolutely
refused to acknowledge the title of his rival. He retired in disgust to
his castle of Lochmaben, where he died in November, 1295. While resident
in England, he had married Isabel, daughter of Gilbert de Clare, Earl of
Gloucester, by whom he had several sons. Robert, the son of Robert the
eldest, became Robert I. of Scotland, and one of the greatest of heroes.
When judgment had been given in favor of Baliol, Brabacon was still
employed to assist in the plan which had been formed to bring Scotland
into entire subjection. There being a meeting at Newcastle of the nobles
of the two nations, when the feudatory king did homage to his liege lord,
complaint was made by Roger Bartholomew, a burgess of Berwick, that
certain English judges had been deputed to exercise jurisdiction on the
north bank of the Tweed. Edward referred the matter to Brabacon and other
commissioners, commanding them to do justice according to the laws and
customs of his kingdom. A petition was then presented to them on behalf of
the King of Scotland, setting forth Edward's promise to observe the laws
and customs of that kingdom, and that pleas of things done there should
not be drawn to examination elsewhere. Brabacon is reported thus to have
answered:--
"This petition is unnecessary, and not to the purpose; for it is manifest,
and ought to be admitted by all the prelates and barons, and commonalty of
Scotland, that the king, our master, has performed all his promises to
them. As to the conduct of his judges, lately deputed by him as SUPERIOR
and DIRECT LORD of that kingdom, they only represent his person; he will
take care that they do not transgress his authority, and on appeal to him
he will see that right is done. If the king had made any temporary
promises when the Scottish throne was vacant, in derogation of his just
_suzeraineté_, by such promises he would not have been restrained or
bound."[27]
Encouraged by this language, Macduff, the Earl of Fife, entered an appeal
in the English House of Lords against the King of Scotland; and, on the
advice of Brabacon and the other judges, it was resolved that the
respondent must stand at the bar as a vassal, and that, for his contumacy,
three of his principal castles should be seized into the king's hands.
Although historians who mention these events designate Brabacon as "grand
justiciary," it is quite certain that, as yet, he was merely a puisne
judge; but there was a strong desire to _reward_ him for his services,
and, at last, an opportune vacancy arising, he was created chief justice
of the King's Bench.
Of his performances in this capacity we know nothing, except by the
general commendation of chroniclers; for the Year Books, giving a regular
account of judicial decisions, do not begin till the following reign.
On the accession of Edward II., Brabacon was reappointed chief justice of
the King's Bench, and he continued very creditably to fill the office for
eight years longer. He was fated to deplore the fruitless result of all
his efforts to reduce Scotland to the English yoke Robert Bruce being now
the independent sovereign of that kingdom, after humbling the pride of
English chivalry in the battle of Bannockburn.[28]
At last, the infirmities of age unfitting Brabacon for the discharge of
judicial duties, he resigned his gown; but, to do him honor, he was sworn
a member of the Privy Council, and he continued to be treated with the
highest respect till his death, which happened about two years
afterwards.
CHAPTER II.
ROBERT TRESILIAN.
We next come to a chief justice who actually suffered the last penalty of
the law--and deservedly--in the regular administration of retributive
justice--Sir Robert Tresilian--hanged at Tyburn.
I can find nothing respecting his origin or education, except a doubtful
statement that he was of a Cornish family, and that he was elected a
fellow of Exeter College, Oxford, in 1354. The earliest authentic notice
of him is at the commencement of the reign of Richard II., when he was
made a serjeant at law, and appointed a puisne judge of the Court of
King's Bench. The probability is, that he had raised himself from
obscurity by a mixture of good and evil arts. He showed learning and
diligence in the discharge of his judicial duties; but, instead of
confining himself to them, he mixed deeply in politics, and showed a
determination, by intrigue, to reach power and distinction. He devoted
himself to De Vere, the favorite of the young king, who, to the great
annoyance of the princes of the blood, and the body of the nobility, was
created Duke of Ireland, was vested for life with the sovereignty of that
island, and had the distribution of all patronage at home. By the
influence of this minion, Tresilian, soon after the melancholy end of Sir
John Cavendish,[29] was appointed chief justice of the King's Bench; and
he was sent into Essex to try the rebels. The king accompanied him. It is
said that, as they were journeying, "the Essex men, in a body of about
500, addressed themselves barefoot to the king for mercy, and had it
granted upon condition that they should deliver up to justice the chief
instruments of stirring up the rebellion; which being accordingly done,
they were immediately tried and hanged, ten or twelve on a beam, at
Chelmsford, because they were too many to be executed after the usual
manner, which was by beheading."
Tresilian now gained the good graces of Michael de la Pole, the lord
chancellor, and was one of the principal advisers of the measures of the
government, being ever ready for any dirty work that might be assigned to
him. In the year 1385, it was hoped that he might have got rid, by an
illegal sentence, of John of Gaunt, who had become very obnoxious to the
king's favorites. But the plot got wind, and the Duke, flying to
Pontefract Castle, fortified himself there till his retainers came to his
rescue.
In the following year, when there was a change of ministry, Tresilian was
in great danger of being included in the impeachment which proved the ruin
of the chancellor; but he escaped by an intrigue with the victorious
party, and he was suspected of having secretly suggested the commission
signed by Richard, and confirmed by Parliament, under which the whole
power of the state was transferred to a commission of fourteen barons. He
remained very quiet for a twelvemonth, till he thought that he perceived
the new ministers falling into unpopularity, and he then advised that a
bold effort should be made to crush them. Meeting with encouragement, he
secretly left London, and, being joined by the Duke of Ireland, went to
the king, who was at Nottingham, in a progress through the midland
counties. He then undertook, through the instrumentality of his brother
judges, to break the commission, and to restore the king and the favorite
to the authority of which it had deprived them. His plan was immediately
adopted, and the judges, who had just returned from the summer assizes,
were all summoned in the king's name to Nottingham.
On their arrival, they found not only a string of questions, but answers,
prepared by Tresilian. These he himself had signed, and he required them
to sign. Belknappe, the chief justice of the Common Pleas, and the others,
demurred, seeing the peril to which they might be exposed; but, by
promises and threats, they were induced to acquiesce. The following record
was accordingly drawn up, that copies of it might be distributed all over
England:--
"Be it remembered, that on the 25th of Aug., in the 11th year of the reign
of K. Rich. II., at the castle of Nottingham, before our said lord the
king, Rob. Tresilian, chief justice of England, and Robt. Belknappe, chief
justice of the common bench of our said lord the king, John Holt, Roger
Fulthorp, and Wm. de Burg, knights, justices, &c., and John de Lokton, the
king's serjeant-at-law, in the presence of the lords and other witnesses
under-written, were personally required by said lord the king, on the
faith and allegiance wherein to him the said king they are bound, to
answer faithfully unto certain questions hereunder specified, and to them
then and there truly recited, and upon the same to declare the law
according to their discretion, viz.:--
"1. It was demanded of them, 'Whether that new statute, ordinance, and
commission, made and published in the last parl. held at Westm., be not
derogatory to the loyalty and prerogative of our said lord the king?' To
which they unanimously answered that the same are derogatory thereunto,
especially because they were against his will.
"2. 'How those are to be punished who procured that statute and
commission?'--_A._ That they were to be punished with death, except the
king would pardon them.
"3. 'How those are to be punished who moved the king to consent to the
making of the said statute?'--_A._ That they ought to lose their lives
unless his Maj. would pardon them.
"4. 'What punishment they deserved who compelled, straightened, or
necessitated the king to consent to the making of the said statute and
commission?'--_A._ That they ought to suffer as traitors.
"5. 'How those are to be punished who hindered the king from exercising
those things which appertain to his royalty and prerogative?'--_A._ That
they are to be punished as traitors.
"6. 'Whether after in parl. assembled, the affairs of the kingdom, and the
cause of calling that parl. are by the king's command declared, and
certain articles limited by the king upon which the lords and commons in
that parl. ought to proceed; if yet the said lords and commons will
proceed altogether upon other articles and affairs, and not at all upon
those limited and proposed to them by the king, until the king shall have
first answered them upon the articles and matters so by them started and
expressed, although the king's command be to the contrary; whether in such
case the king ought not to have the governance of the parl. and
effectually overrule them, so as that they ought to proceed first on the
matters proposed by the king: or whether, on the contrary, the lords and
commons ought first to have the king's answer upon their proposals before
they proceeded further?'--_A._ That the king in that behalf has the
governance, and may appoint what shall be first handled, and so gradually
what next in all matters to be treated of in parl., even to the end of the
parl.; and if any act contrary to the king's pleasure made known therein,
they are to be punished as traitors.
"7. 'Whether the king, whenever he pleases, can dissolve the parl., and
command the lords and commons to depart from thence, or not?'--_A._ That
he can; and if any one shall then proceed in parl. against the king's
will, he is to be punished as a traitor.
"8. 'Since the king can, whenever he pleases, remove any of his judges and
officers, and justify or punish them for their offences; whether the lords
and commons can, without the will of the king, impeach in parl. any of the
said judges or officers for any of their offences?'--_A._ That they
cannot; and if any one should do so he is to be punished as a traitor.[30]
"9. 'How he is to be punished who moved in parl. that the statute should
be sent for whereby Edw. II. (the king's great grandfather) was proceeded
against and deposed in parl.; by means of sending for and imposing which
statute, the said late statute, ordinance, and commission, were devised
and brought forth in parl.?'--_A._ That as well he that so moved, as he
who by pretence of that motion carried the said statute to the parl., are
traitors and criminals, to be punished with death.
"10. 'Whether the judgment given in the last parl. held at Westm. against
Mich. de la Pole, Earl of Suffolk, was erroneous and revocable, or
not?'--_A._ That if that judgment were now to be given, they would not
give it; because it seems to them that the said judgment is revocable, as
being erroneous in every part of it.
"In testimony of all which, the judges and serjeants aforesaid, to these
presents have put their seals in the presence of the rev. lords, Alex.
abp. of York, Rob. abp. of Dublin, John bp. of Durham, Tho. bp. of
Chichester, and John bp. of Bangor, Rob. duke of Ireland, Mich. earl of
Suffolk, John Rypon, clerk, and John Blake, esq.; given the place, day,
month, and year aforesaid."
Tresilian exultingly thought that he had not only got rid of the obnoxious
commission, but that he had annihilated the power of Parliament by the
destruction of parliamentary privilege, and by making the proceedings of
the two houses entirely dependent on the caprice of the sovereign.
He then attended Richard to London, where the opinion of the judges
against the legality of the commission was proclaimed to the citizens at
the Guildhall; and all who should act under it were declared traitors. A
resolution was formed to arrest the most obnoxious of the opposite
faction, and to send them to take their trials before the judges who had
already committed themselves on the question of law; and, under the
guidance of Tresilian, a bill of indictment was actually prepared against
them for a conspiracy to destroy the royal prerogative. Thomas Ush, the
under sheriff, promised to pack a jury to convict them; Sir Nicholas
Brambre, who had been thrice lord mayor, undertook to secure the fidelity
of the citizens; and all the city companies swore that they would live and
die with the king, and fight against his enemies to their last breath.
Arundel, Bishop of Ely, was still chancellor; but Tresilian considered
that the great seal was now within his own grasp, and, after the recent
examples of chief justices becoming chancellors, he anticipated no
obstacle to his elevation.
At such a slow pace did news travel in those days, that, on the night of
the 10th of November, Richard and his chief justice went to bed thinking
that their enemies were annihilated, and next morning they were awoke by
the intelligence that a large force, under the Duke of Gloucester and the
Earls of Arundel and Nottingham, was encamped at Highgate. The confederate
lords, hearing of the proceedings at Nottingham, had immediately rushed to
arms, and followed Richard towards London, with an army of 40,000 men. The
walls of London were sufficient to repel a sudden assault; and a royal
proclamation forbade the sale of provisions to the rebels, in the hope
that famine might disperse them. But, marching round by Hackney, they
approached Aldgate, and they appeared so formidable, that a treaty was
entered into, according to which they were to be supplied with all
necessaries, on payment of a just price, and deputies from them were to
have safe conduct through the city on their way to the king at
Westminster. Richard himself agreed that on the following Sunday he would
receive the deputies, sitting on his throne in Westminster Hall.
At the appointed hour he was ready to receive them, but they did not
arrive, and he asked "how it fortuned that they kept not their promise."
Being answered, "Because there is an ambush of a thousand armed men or
more in a place called the Mews, contrary to covenant; and therefore they
neither come, nor hold you faithful to your word,"--he said, with an oath,
that "he knew of no such thing," and he ordered the sheriffs of London to
go thither and kill all they could lay hands on. The truth was, that Sir
Nicholas Brambre, in concert with Tresilian, had planted an ambush near
Charing Cross, to assassinate the lords as they passed; but, in obedience
to the king's order, the men were sent back to the city of London. The
lords at last reached Westminster, with a gallant troop of gentlemen; and
as soon as they had entered the great hall, and saw the king in his royal
robes sitting on the throne, with the crown on his head and the sceptre in
his hand, they made obeisance three times as they advanced, and when they
reached the steps of the throne they knelt down before him with all
seeming humility. He, feigning to be pleased to see them, rose and took
each of them by the hand, and said "he would hear their plaint, as he was
desirous to render justice to all his subjects." Thereupon they said,
"Most dread sovereign, we appeal of high treason Robert Tresilian, that
false justice; Nicholas Brambre, that disloyal knight; the Archbishop of
York; the Duke of Ireland; and the Earl of Suffolk;"--and, to prove their
accusation to be true, they threw down their gauntlets, protesting by
their oaths that they were ready to prosecute it to battle. "Nay," said
the king, "not so; but in the next Parliament (which we do appoint
beforehand to begin the morrow after the Purification of our Lady,) both
they and you, appearing, shall receive according to law what law doth
require, and right shall be done."
It being apparent that the confederate lords had a complete ascendency,
the accused parties fled. The Duke of Ireland and Sir Nicholas Brambre
made an ineffectual attempt to rally a military force; but Chief Justice
Tresilian disguised himself, and remained in concealment till he was
discovered, after being attainted, in the manner to be hereafter
described.
The election for the new Parliament ran strongly in favor of the
confederate lords; and, on the day appointed for its meeting, an order was
issued under their sanction for taking into custody all the judges who had
signed the opinion at Nottingham. They were all arrested while they were
sitting on the bench, except Chief Justice Tresilian; but he was nowhere
to be found.
When the members of both houses had assembled at Westminster Hall, and the
king had taken his place on the throne, the five lords, who were called
APPELLANTS, "entered in costly robes, leading one another hand in hand, an
innumerable company following them, and, approaching the king, they all
with submissive gestures reverenced him. Then rising, they declared their
appellation by the mouth of their speaker, who said, 'Behold the Duke of
Gloucester comes to purge himself of treasons which are laid to his charge
by the conspirators.' To whom the lord chancellor, by the king's command,
answered, 'My lord duke, the king conceiveth so honorably of you, that he
cannot be induced to believe that you, who are of kindred to him, should
attempt any treason against him.' The duke, with his four companions on
their knees, humbly gave thanks to the king for his gracious opinion of
their fidelity. And now, as a prelude to what was going to be acted, each
of the prelates, lords and commons then assembled, had the following oath
administered to them upon the rood or cross of Canterbury, in full
Parliament: 'You shall swear that you will keep, and cause to be kept, the
good peace, quiet, and tranquillity of the kingdom; and if any will do to
the contrary thereof, you shall oppose and disturb him to the utmost of
your power; and if any will do any thing against the bodies of the five
lords, you shall stand with them to the end of this present Parliament,
and maintain and support them with all your power, to live and die with
them against all men, no person or thing excepted, saving always your
legiance to the king and the prerogatives of his crown, according to the
laws and good customs of the realm.'"
Written articles to the number of thirty-nine were then exhibited by the
appellants against the appellees. The other four are alleged to have
committed the various acts of treason charged upon them "by the assent and
counsel of Robert Tresilian, that false justice;" and in most of the
articles he bears the brunt of the accusation. Sir Nicholas Brambre alone
was in custody; and the others not appearing when solemnly called, their
default was recorded, and the lords took time to consider whether the
impeachment was duly instituted, and whether the facts stated in the
articles amounted to high treason. Ten days thereafter, judgment was given
"that the impeachment was duly instituted, and that the facts stated in
several of the articles amounted to high treason." Thereupon, the prelates
having withdrawn, that they might not mix in an affair of blood, sentence
was pronounced, "that Sir Robert Tresilian, the Duke of Ireland, the
Archbishop of York, and Earl of Suffolk, should be drawn and hanged as
traitors and enemies to the king and kingdom, and that their heirs should
be disinherited forever, and that their lands and tenements, goods and
chattels, should be forfeited to the king."
Tresilian might have avoided the execution of his sentence, had it not
been for the strangest infatuation related of any human being possessing
the use of reason. Instead of flying to a distance, like the duke, the
archbishop, and the earl, none of whom suffered, although his features
were necessarily well known, he had come to the neighborhood of
Westminster Hall on the first day of the session of Parliament; and, even
after his own attainder had been published, trusting to his disguise, his
curiosity induced him to remain to watch the fate of his associate, Sir
Nicholas Brambre.
This chivalrous citizen, who had been knighted for the bravery he had
displayed in assisting Sir William Walwort to kill Wat Tyler and to put
down the rebellion, having been apprehended and lodged in the Tower of
London, was now produced by the constable of the Tower, to take his trial.
He asked for further time to advise with his counsel, but was ordered
forthwith to answer to every point in the articles of treason contained.
Thereupon he exclaimed, "Whoever hath branded me with this ignominious
mark, with him I am ready to fight in the lists to maintain my innocency
whenever the king shall appoint!" "This," says a chronicler, "he spake
with such a fury, that his eyes sparkled with rage, and he breathed as if
an Etna lay hid in his breast; choosing rather to die gloriously in the
field, than disgracefully on a gibbet."
The appellants said "they would readily accept of the combat," and
flinging down their gages before the king, added, "We will prove these
articles to be true to thy head, most damnable traitor!" But the lords
resolved "that battle did not lie in this case; and that they would
examine the articles with the proofs to support them, and consider what
judgment to give, to the advantage and profit of the king and kingdom, and
as they would answer before God."
They adjourned for two days, and met again, when a number of London
citizens appeared to give evidence against Brambre. For the benefit of the
reader, the chronicler I have before quoted shall continue the story:--
"Before they could proceed with his trial, they were interrupted by
unfortunate Tresilian, who, being got upon the top of an apothecary's
house adjoining to the palace, and descended into the gutter to look about
him and observe who went into the palace, was discovered by certain of the
peers, who presently sent some of the guard to apprehend him; who entering
into the house where he was, and having spent long time in vain in looking
for him, at length one of the guard stepped to the master of the house,
and taking him by the shoulder, with his dagger drawn, said thus: 'Show us
where thou hast hid Tresilian, or else resolve thy days as accomplished.'
The master, trembling, and ready to yield up the ghost for fear, answered,
'Yonder is the place where he lies;' and showed him a round table covered
with branches of bays, under which Tresilian lay close covered. When they
had found him they drew him out by the heels, wondering to see him wear
his hair and beard overgrown, with old clouted shoes and patched hose,
more like a miserable poor beggar than a judge. When this came to the ears
of the peers, the five appellants suddenly rose up, and, going to the gate
of the hall, they met the guard leading Tresilian, bound, crying, as they
came, 'We have him, we have him.' Tresilian, being come into the hall, was
asked 'what he could say for himself why execution should not be done
according to the judgment passed upon him for his treasons so often
committed;' but he became as one struck dumb; he had nothing to say, and
his heart was hardened to the very last, so that he would not confess
himself guilty of any thing. Whereupon he was without delay led to the
Tower, that he might suffer the sentence passed against him. His wife and
his children did with many tears accompany him to the Tower; but his wife
was so overcome with grief, that she fell down in a swoon as if she had
been dead. Immediately Tresilian is put upon an hurdle, and drawn through
the streets of the city, with a wonderful concourse of people following
him. At every furlong's end he was suffered to stop, that he might rest
himself, and to see if he would confess or acknowledge any thing; but what
he said to the friar, his confessor, is not known. When he came to the
place of execution he would not climb the ladder, until such time as being
soundly beaten with bats and staves he was forced to go up; and when he
was up, he said, 'So long as I do wear any thing upon me, I shall not
die;' wherefore the executioner stript him, and found certain images
painted like to the signs of the heavens, and the head of a devil painted,
and the names of many of the devils wrote in parchment; these being taken
away he was hanged up naked, and after he had hanged some time, that the
spectators should be sure he was dead, they cut his throat, and because
the night approached they let him hang till the next morning, and then his
wife, having obtained a licence of the king, took down his body, and
carried it to the Gray-Friars, where it was buried."
Considering the violence of the times, Tresilian's conviction and
execution cannot be regarded as raising a strong presumption against him;
but there seems little doubt that he flattered the vices of the unhappy
Richard; and historians agree that, in prosecuting his personal
aggrandizement, he was utterly regardless of law and liberty. He died
unpitied, and, notwithstanding the "historical doubts" by which we are
beset, no one has yet appeared to vindicate his memory.
CHAPTER III.
THOMAS BILLING.
The crown of England, transferred on the deposition of Richard II.[31] in
1399 to the Lancaster family in the person of Henry IV., was worn
successively by him and by his son and grandson, Henry V. and Henry VI.
After the lapse, however, of sixty-two years, the imbecility of Henry VI.
enabled the Legitimist or Yorkist party to triumph by placing Edward IV.
on the throne.
At this time Sir John Fortescue, an able man and distinguished by his
treatise _De Laudibus Legion Angliæ_, (Praises of the Laws of England,)
was chief justice of the King's Bench; but being an ardent Lancastrian,
and having written pamphlets to prove that Richard II. was rightly
deposed, that Henry IV. had been called to the throne by the estates of
the kingdom and the almost unanimous voice of the people, and that now, in
the third generation, the title of the House of Lancaster could not be
questioned, he was by no means the man to suit the new dynasty. He was
removed to make way for Sir John Markham, who had been for nineteen years
a puisne judge of the same court, and who, though he had not ventured to
publish any thing on the subject, yet in private conversation and in
"moots" at the Temple, such as that in which the white and red roses were
chosen as the emblems of the opposite opinions, did not hesitate to argue
for indefeasible hereditary right, which no length of possession could
supersede, and to contend that the true heir of the crown of England was
Richard, Duke of York, descended from the second son of Edward III. His
sentiments were well known to the Yorkist leaders, and they availed
themselves of the legal reasoning and the historical illustrations with
which he furnished them; but he never sallied forth into the field, even
when, after the death of Richard, the gallant youth his eldest son
displayed the high qualities which so wonderfully excited the energy of
his partisans. However, when Henry VI. was confined as a prisoner in the
Tower, and Fortescue and all the Lancastrian leaders had fled, Markham was
very naturally and laudably selected for the important office of chief
justice of the King's Bench. Although he was such a strong Legitimist, he
was known not only to be an excellent lawyer, but a man of honorable and
independent principles. The appointment, therefore, gave high
satisfaction, and was considered a good omen of the new _régime_.
He held the office above seven years, with unabated credit. Not only was
his hand free from bribes, but so was his mind from every improper bias.
It was allowed that when sitting on the bench, no one could have
discovered whether he was Yorkist or Lancastrian; the adherents of the
reigning dynasty complaining (I dare say very unjustly) that, to obtain a
character for impartiality, he showed a leaning on the Lancastrian
side.[32]
At last, though he cherished his notions of hereditary right with
unabating constancy, he forfeited his office because he would not
prostitute it to the purpose of the king and the ministers in wreaking
their vengeance on the head of a political opponent. Sir Thomas Cooke, who
inclined to the Lancastrians, though he had conducted himself with great
caution, was accused of treason and committed to the Tower. To try him a
special commission was issued, over which Lord Chief Justice Markham
presided, and the government was eager for a conviction. But all that
could be proved against the prisoner was, that he entered into a treaty to
lend, on good security, a sum of 1000 marks for the use of Margaret, the
queen of the dethroned Henry VI. The security was not satisfactory, and
the money was not advanced. The chief justice ruled that this did not
amount to treason, but was at most misprision of treason. Of this last
offence the prisoner being found guilty, he was subjected to fine and
imprisonment; but he saved his life and his lands. King Edward IV. was in
a fury, and swearing that Markham, notwithstanding his high pretensions to
loyalty, was himself little better than a traitor, ordered that he should
never sit on the bench any more; and appointed in his place a successor,
who, being a _puisne_, had wished to trip up the heels of his chief, and
had circulated a statement, to reach the king's ear, that Sir Thomas
Cooke's offence was a clear, overt act of high treason. Markham bore his
fall with much dignity and propriety--in no respect changing his
principles or favoring the movement which for a season restored Henry VI.
to the throne after he had been ten years a prisoner in the Tower.
Upon the dismissal of Sir John Markham, Edward IV., who no longer showed
the generous spirit which had illustrated his signal bravery while he was
fighting for the crown, and now abandoned himself by turns to
voluptuousness and cruelty, tried to discover the fittest instrument that
could be found for gratifying his resentments by a perversion of the forms
of law, and with felicity fixed upon Sir Thomas Billing, who, by all sorts
of meannesses, frauds, and atrocities, aided by natural shrewdness, or
rather low cunning, had contrived to raise himself from deep obscurity to
a puisne judge of the King's Bench; and in that situation had shown
himself ready to obey every mandate, and to pander to every caprice of
those who could give him still higher elevation. This is one of the
earliest of the long list of politico-legal adventurers who have attained
to eminence by a moderate share of learning and talent, and an utter want
of principle and regard for consistency.[33]
His family and the place of his education are unknown. He was supposed to
have been the clerk of an attorney; thus making himself well acquainted
with the rules of practice and the less reputable parts of the law.
However, he contrived (which must have been a difficult matter in those
days, when almost all who were admitted at the inns of court were young
men of good birth and breeding) to keep his terms and to be called to the
bar. He had considerable business, although not of the most creditable
description, and in due time he took the degree of the coif, that is,
became a serjeant.
His ambition grew with his success, and nothing would satisfy him but
official preferment. Now began the grand controversy respecting the
succession to the crown; and the claim to it through the house of
Mortimer, which had long been a mere matter of speculation, was brought
into formidable activity in the person of Richard, Duke of York. Billing,
thinking that a possession of above half a century must render the
Lancastrian cause triumphant, notwithstanding the imbecility of the
reigning sovereign, was outrageously loyal. He derided all objections to a
title which the nation had so often solemnly recognized; enlarging on the
prudence of Henry IV., the gallantry of Henry V., and the piety of the
holy Henry VI., under whose mild sway the country now flourished, happily
rid of all its continental dependencies. He even imitated the example of
Sir John Fortescue, and published a treatise upon the subject, which he
concluded with an exhortation "that all who dared, by act, writing, or
speech, to call in question the power of Parliament to accept the
resignation of Richard II., or to depose him for the crimes he had
committed, and to call to the throne the member of the royal family most
worthy to fill it, according to the fashion of our Saxon ancestors, should
be proceeded against as traitors." This so pleased Waynflete, the
chancellor, and the other Lancastrian leaders, that Billing was thereupon
made king's serjeant, and knighted.
When the right to the crown was argued, like a peerage case, at the bar of
the House of Lords, Billing appeared as counsel for Henry VI., leading the
attorney and solicitor general; but it was remarked that his fire had
slackened much, and he was very complimentary to the Duke of York, who,
since the battle of Northampton, had been virtually master of the kingdom.
We know nothing more of the proceedings of this unprincipled adventurer
until after the fall of Duke Richard, when the second battle of St.
Alban's had placed his eldest son on the throne. Instantly Sir Thomas
Billing sent in his adhesion; and such zeal did he express in favor of the
new dynasty that his patent of king's serjeant was renewed, and he became
principal law adviser to Edward IV. When Parliament assembled, receiving a
writ of summons to the House of Lords, he assisted in framing the acts by
which Sir J. Fortescue and the principal Lancastrians, his patrons, were
attainted, and the last three reigns were pronounced tyrannical
usurpations. He likewise took an active part in the measures by which the
persevering efforts of Queen Margaret to regain her ascendency were
disconcerted, and Henry VI. was lodged a close prisoner in the Tower of
London.
Sir John Markham, the honorable and consistent Yorkist, now at the head of
the administration of the criminal law, was by no means so vigorous in
convicting Lancastrians, or persons suspected of Lancastrianism, as Edward
and his military adherents wished; and when state prosecutions failed,
there were strong murmurs against him. In these Mr. Serjeant Billing
joined, suggesting how much better it would be for the public
tranquillity if the law were properly enforced. It would have appeared
very ungracious, as well as arbitrary, to displace the chief justice, who
had been such a friend to the house of York, and was so generally
respected. That there might be one judge to be relied upon, who might be
put into commissions of oyer and terminer, Billing was made a puisne
justice of the Court of King's Bench. He was not satisfied with this
elevation, which little improved his position in the profession; but he
hoped speedily to be on the woolsack, and he was resolved that mere
scruples of conscience should not hold him back.
Being thus intrusted with the sword of justice, he soon fleshed it in the
unfortunate Walter Walker, indicted before him on the statute 25 Edward
III., for compassing and imagining the death of the king. The prisoner
kept an inn called the Crown, in Cheapside, in the city of London, and was
obnoxious to the government because a club of young men met there who were
suspected to be Lancastrians, and to be plotting the restoration of the
imprisoned king. But there was no witness to speak to any such treasonable
consult; and the only evidence to support the charge was, that the
prisoner had once, in a merry mood, said to his son, then a boy, "Tom, if
thou behavest thyself well, I will make thee heir to the Crown."
Counsel were not allowed to plead in such cases then, or for more than
three centuries after; but the poor publican himself urged that he never
had formed any evil intention upon the king's life,--that he had ever
peaceably submitted to the ruling powers,--and that though he could not
deny the words imputed to him, they were only spoken to amuse his little
boy, meaning that he should succeed him as master of the Crown Tavern, in
Cheapside, and, like him, employ himself in selling sack.
Mr. Justice Billing, however, ruled--
"That upon the just construction of the statute of treasons, which was
only declaratory of the common law, there was no necessity, in supporting
such a charge, to prove a design to take away the natural life of the
king; that any thing showing a disposition to touch his royal state and
dignity was sufficient; and that the words proved were inconsistent with
that reverence for the hereditary descent of the crown which was due from
every subject under the oath of allegiance; therefore, if the jury
believed the witness, about which there could be no doubt, as the prisoner
did not venture to deny the treasonable language which he had used, they
were bound to find him guilty."
A verdict of guilty was accordingly returned, and the poor publican was
hanged, drawn, and quartered.[34]
Mr. Justice Billing is said to have made the criminal law thus bend to the
wishes of the king and the ministers in other cases, the particulars of
which have not been transmitted to us; and he became a special favorite at
court, all his former extravagances about cashiering kings and electing
others in their stead being forgotten, in consideration of the zeal he
displayed since his conversion to the doctrine of "divine right."
Therefore, when the chief justice had allowed Sir Thomas Cooke to escape
the penalties of treason, after his forfeitures had been looked to with
eagerness on account of the great wealth he had accumulated, there was a
general cry in the palace at Westminster that he ought not to be permitted
longer to mislead juries, and that Mr. Justice Billing, of such approved
loyalty and firmness, should be appointed to succeed him, rather than the
attorney or solicitor general, who, getting on the bench, might, like him,
follow popular courses.
Accordingly, a _supersedeas_ to Sir John Markham was made out immediately
after the trial of _Rex_ v. _Cooke_, and the same day a writ passed the
great seal, whereby "the king's trusty and well-beloved Sir Thomas
Billing, Knight, was assigned as chief justice to hold pleas before the
king himself."
The very next term came on the trial of Sir Thomas Burdett. This
descendant of one of the companions of William the Conqueror, and ancestor
of the late Sir Francis Burdett, lived at Arrow, in Warwickshire, where he
had large possessions. He had been a Yorkist, but somehow was out of favor
at court; and the king, making a progress in those parts, had rather
wantonly entered his park, and hunted and killed a white buck, of which he
was peculiarly fond. When the fiery knight, who had been from home, heard
of this affair, which he construed into a premeditated insult, he
exclaimed, "I wish that the buck, horns and all, were in the belly of the
man who advised the king to kill it;" or, as some reported, "were in the
king's own belly." The opportunity was thought favorable for being
revenged on an obnoxious person. Accordingly he was arrested, brought to
London, and tried at the King's Bench bar on a charge of treason, for
having compassed and imagined the death and destruction of "our lord the
king."
The prisoner proved, by most respectable witnesses, that the wish he had
rashly expressed was applied only to the man who advised the king to kill
the deer, and contended that words did not amount to treason, and
that--although, on provocation, he had uttered an irreverent expression,
which he deeply regretted--instead of having any design upon the king's
life, he was ready to fight for his right to the crown, as he had done
before; and that he would willingly die in his defence.
"Lord Chief Justice Billing left it to the jury to consider what the words
were; for if the prisoner had only expressed a wish that the buck and his
horns were in the belly of the man who advised the king to kill the buck,
it would not be a case of treason, and the jury would be bound to acquit;
but the story as told by the witnesses for the crown was much more
probable, for sovereigns were not usually advised on such affairs, and it
had been shown that on this occasion the king had acted entirely of his
own head, without any advisers, as the prisoner, when he uttered the
treasonable words, must have well known: then, if the words really were as
alleged by the witnesses for the crown, they clearly did show a
treasonable purpose. Words merely expressing an opinion, however erroneous
the opinion, might not amount to treason; but when the words refer to a
purpose, and incite to an act, they might come within the statute. Here
the king's death had certainly been in the contemplation of the prisoner;
in wishing a violence to be done which must inevitably have caused his
death, he imagined and compassed it. This was, in truth, advising,
counselling, and commanding others to take away the sacred life of his
majesty. If the wicked deed had been done, would not the prisoner, in case
the object of his vengeance had been a subject, have been an accessory
before the fact?[35] But in treason accessories before the fact were
principals, and the prisoner was not at liberty to plead that what he had
planned had not been accomplished. Therefore, if the jury believed that he
had uttered the treasonable wish directed against his majesty's own sacred
person, they were bound to convict him."
The jury immediately returned a verdict of guilty; and the frightful
sentence in high treason, being pronounced, was carried into execution
with all its horrors. This barbarity made a deep impression on the public
mind, and, to aggravate the misconduct of the judge, a rumor was
propagated that the late virtuous chief justice had been displaced because
he had refused to concur in it.
Lord Chief Justice Billing, having justified his promotion by the renegade
zeal he displayed for his new friends, and enmity to his old associates,
was suddenly thrown into the greatest perplexity, and he must have
regretted that he had ever left the Lancastrians. One of the most
extraordinary revolutions in history,--when a long continuance of public
tranquillity was looked for,--without a battle, drove Edward IV. into
exile, and replaced Henry VI. on the throne, after he had languished ten
years as a captive in the Tower of London.
There is no authentic account of Billing's deportment in this crisis, and
we can only conjecture the cunning means he would resort to, and the
pretences he would set up, to keep his place and to escape punishment.
Certain it is, that within a few days from the time when Henry went in
procession from his prison in the Tower to his palace at Westminster, with
the crown on his head, while almost all other functionaries of the late
government had fled, or were shut up in jail, a writ passed the great
seal, bearing date the 49th year of his reign, by which he assigned "his
trusty and well-beloved Sir John Billing, Knight, as his chief justice to
hold pleas in his court before him." There can be as little doubt that he
was present at the Parliament which was summoned immediately after in
Henry's name, when the crown was entailed on Henry and his issue, Edward
was declared a usurper, his most active adherents were attainted, and all
the statutes which had passed during his reign were repealed. It is not
improbable that there had been a secret understanding between Billing and
the Earl of Warwick, (the king maker,) who himself so often changed sides,
and who was now in possession of the whole authority of the government.
While Edward was a fugitive in foreign parts, the doctrine of divine right
was, no doubt, at a discount in England, and Billing may have again bolted
his arguments about the power of the people to choose their rulers;
although, according to the superstition of the age, he more probably
countenanced the belief that Henry was a saint, and that he was restored
by the direct interposition of Heaven.
But one would think he must have been at his wits' end when, in the spring
of the following year, Edward IV. landed at Ravenspurg, gained the battle
of Barnet, and, after the murder of Henry VI. and the Prince of Wales, was
again on the throne, without a rival. Billing does seem to have found
great difficulty in making his peace. Though he was dismissed from his
office, it was allowed to remain vacant about a twelvemonth, during which
time he is supposed to have been in hiding. But he had vowed that,
whatever changes might take place on the throne, he himself should die
chief justice of the King's Bench; and he contrived to be as good as his
word.
By his own representations, or the intercession of friends, or the hope of
the good services he might yet render in getting rid of troublesome
opponents, the king was induced to declare his belief that he who had sat
on the trials of Walker and Burdet had unwillingly submitted to force
during the late usurpation; and on the 17th of June, 1472, a writ passed
the great seal, by which his majesty assigned "his right trusty and
well-beloved Sir John Billing, Knight, as Chief Justice to hold pleas
before his Majesty himself."
For nearly nine years after, he continued in the possession of his office,
without being driven again to change his principles or his party. One good
deed he did, which should be recorded of him--in advising Edward IV. to
grant a pardon to an old Lancastrian, Sir John Fortescue. But for the
purpose of reducing this illustrious judge to the reproach of
inconsistency, which he knew made his own name a by-word, he imposed a
condition that the author of _De Laudibus_ should publish a new treatise,
to refute that which he had before composed, proving the right of the
house of Lancaster to the throne; and forced him to present the petition
in which he assures the king "that he hath so clearly disproved all the
arguments that have been made against his right and title, that now there
remaineth no color or matter of argument to the hurt or infamy of the
same right or title by reason of any such writing, but the same right and
title stand now the more clear and open by that any such writings have
been made against them."
There are many decisions of Chief Justice Billing on dry points of law to
be found in the Year Books, but there is only one other trial of
historical importance mentioned in which he took any part; and it is much
to be feared that on this occasion he inflamed, instead of soothing, the
violent passions of his master, with whom he had become a special
favorite.
Edward IV., after repeated quarrels and reconciliations with his brother,
the Duke of Clarence, at last brought him to trial, at the bar of the
House of Lords, on a charge of high treason. The judges were summoned to
attend, and Lord Chief Justice Billing was their mouthpiece. We have only
a very defective account of this trial, and it would appear that nothing
was proved against the first prince of the blood, except that he had
complained of the unlawful conviction of Burdet, who had been in his
service; that he had accused the king of dealing in magic, and had cast
some doubts on his legitimacy; that he had induced his servants to swear
that they would be true to him, without any reservation of their
allegiance to their sovereign; and that he had surreptitiously obtained
and preserved an attested copy of an act of Parliament, passed during the
late usurpation, declaring him next heir to the crown after the male issue
of Henry VI. The Duke of Buckingham presided as high steward, and in that
capacity ought to have laid down the law to the peers; but, to lessen his
responsibility, he put the question to the judges, "whether the matters
proved against the Duke of Clarence amounted, in point of law, to high
treason." Chief Justice Billing answered in the affirmative. Therefore a
unanimous verdict of guilty was given, and sentence of death was
pronounced in the usual form. I dare say Billing would not have hesitated
in declaring his opinion that the beheading might be commuted to drowning
in a butt of malmsey wine; but this story of Clarence's exit, once so
current, is now generally discredited, and the belief is, that he was
privately executed in the Tower, according to his sentence.
Lord Chief Justice Billing enjoyed the felicitous fate accorded to very
few persons of any distinction in those times--that he never was
imprisoned, that he never was in exile, and that he died a natural death.
In the spring of the year 1482, he was struck with apoplexy, and he
expired in a few days--fulfilling his vow--for he remained to the last
chief justice of the King's Bench, after a tenure of office for seventeen
years, in the midst of civil wars and revolutions.
He amassed immense wealth, but dying childless, it went to distant
relations, for whom he could have felt no tenderness. Notwithstanding his
worldly prosperity, few would envy him. He might have been feared and
flattered, but he could not have been beloved or respected, by his
contemporaries; and his name, contrasted with those of Fortescue and
Markham, was long used as an impersonation of the most hollow, deceitful,
and selfish qualities which can disgrace mankind.
CHAPTER IV.
JOHN FITZJAMES.
Of obscure birth, and not brilliant talents, Sir John Fitzjames made his
fortune by his great good humor, and by being at college with Cardinal
Wolsey. It is said that Fitzjames, who was a Somersetshire man, kept up an
intimacy with Wolsey when the latter had become a village parson in that
county; and that he was actually in the brawl at the fair when his
reverence, having got drunk, was set in the stocks by Sir Amyas Paulet.
While Wolsey tried his luck in the church, with little hope of promotion,
Fitzjames was keeping his terms in the inns of court; but he chiefly
distinguished himself on gaudy days, by dancing before the judges, playing
the part of "Abbot of Misrule," and swearing strange oaths--especially by
_St. Gillian_, his tutelary saint. His agreeable manners made him popular
with the "readers" and "benchers;" and through their favor, although very
deficient in "moots" and "bolts," he was called to the outer bar. Clients,
however, he had none, and he was in deep despair, when his former
chum--having insinuated himself into the good graces of the stern and wary
old man, Henry VII., and those of the gay and licentious youth, Henry
VIII.--was rapidly advancing to greatness. Wolsey, while almoner, and
holding subordinate offices about the court, took notice of Fitzjames,
advised him to stick to the profession, and was able to throw some
business in his way in the court of Wards and Liveries--
"Lofty and sour to them that lov'd him not:
But to those men that sought him, sweet as summer."
Fitzjames was devotedly of this second class, and was even suspected to
assist his patron in pursuits which drew upon him Queen Catharine's
censure:--
"Of his own body he was ill, and gave
The clergy ill example."
For these or other services, the cardinal, not long after he wrested the
great seal from Archbishop Wareham, and had all legal patronage conferred
upon him, boldly made Fitzjames attorney general, notwithstanding loud
complaints from competitors of his inexperience and incapacity.
The only state trial which he had to conduct was that of the unfortunate
Stafford, Duke of Buckingham, who, having quarrelled with Wolsey, and
called him a "butcher's cur," was prosecuted for high treason before the
lord high chancellor and Court of Peers, on very frivolous grounds.
Fitzjames had little difficulty in procuring a conviction; and although
the manner in which he pressed the case seems shocking to us, he probably
was not considered to have exceeded the line of his duty: and Shakspeare
makes Buckingham, returning from Westminster Hall to the Tower, exclaim--
"I had my trial,
And, must needs say, a noble one; which makes me
A little happier than my wretched father."
The result was, at all events, highly satisfactory to Wolsey, who, in the
beginning of the following year, created Fitzjames a puisne judge of the
Court of King's Bench, with a promise of being raised to be chief justice
as soon as there should be a vacancy. Sir John Fineux, turned of eighty,
was expected to drop every term, but held on four years longer. As soon
as he expired, Fitzjames was appointed his successor. Wolsey still
zealously supported him, although thereby incurring considerable obloquy.
It was generally thought that the new chief was not only wanting in
gravity of moral character, but that he had not sufficient professional
knowledge for such a situation. His highest quality was discretion, which
generally enabled him to conceal his ignorance, and to disarm opposition.
Fortunately for him, the question which then agitated the country
respecting the validity of the king's marriage with Catharine of Arragon,
was considered to depend entirely on the canon law, and he was not called
upon to give any opinion upon it. He thus quietly discharged the duties of
his office till Wolsey's fall. But he then experienced much perplexity.
Was he to desert his patron, or to sacrifice his place? He had an
exaggerated notion of the king's vengeful feelings. The cardinal having
been not only deprived of the great seal, but banished to Esher, and
robbed of almost the whole of his property under process of _præmunire_,
while an impeachment for treason was still threatened against him, the
chief justice concluded that his utter destruction was resolved upon, and
that no one could show him any sympathy without sharing his fate.
Therefore, instead of going privately to visit him, as some old friends
did, he joined in the cry against him, and assisted his enemies to the
utmost. Wolsey readily surrendered all his private property, but wished,
for the benefit of his successors, to save the palace at Whitehall, which
belonged to the see of York, being the gift of a former archbishop. A
reference was then made to the judges, "whether it was not forfeited to
the crown;" when the chief justice suggested the fraudulent expedient of a
fictitious recovery in the Court of Common Pleas, whereby it should be
adjudged to the king under a superior title. He had not the courage to
show himself in the presence of the man to whom he owed every thing; and
Shelley, a puisne judge, was deputed to make the proposal to him in the
king's name. "Master Shelley," said the cardinal, "ye shall make report to
his highness that I am his obedient subject, and faithful chaplain and
bondsman, whose royal commandment and request I will in no wise disobey,
but most gladly fulfil and accomplish his princely will and pleasure in
all things, and in especial in this matter, inasmuch as the fathers of the
law all say that I may lawfully do it. Therefore I charge your conscience,
and discharge mine. Howbeit, I pray you show his majesty from me that I
most humbly desire his highness to call to his most gracious remembrance
that there is both heaven and hell."
This answer was, no doubt, reported by Shelley to his brethren assembled
in the Exchequer Chamber, although, probably, not to the king; but it
excited no remorse in the breast of Chief Justice Fitzjames, who perfected
the machinery by which the town residence of the Archbishops of York
henceforth was annexed to the crown, and declared his readiness to concur
in any proceedings by which the proud ecclesiastic, who had ventured to
sneer at the reverend sages of the law, might be brought to condign
punishment.
Accordingly, when Parliament met, and a select committee of the House of
Lords was appointed to draw up articles of impeachment against Wolsey,
Chief Justice Fitzjames, although only summoned, like the other judges, as
an assessor, was actually made a member of the committee, joined in their
deliberations, and signed their report.
The authority of the chief justice gave such weight to the articles that
they were agreed to by the lords, _nemine contradicente_; but his
ingratitude and tergiversation caused much scandal out of doors, and he
had the mortification to find that he might have acted an honorable and
friendly part without any risk to himself, as the king, retaining a
hankering kindness for his old favorite, not only praised the fidelity of
Cavendish and the cardinal's other dependants who stuck by him in
adversity, but took Cromwell into favor, and advanced him to the highest
dignities, pleased with his gallant defence of his old master: thus the
articles of impeachment (on which, probably, Fitzjames had founded hopes
of the great seal for himself) were ignominiously rejected in the House of
Commons.
The recreant chief justice must have been much alarmed by the report that
Wolsey, whom he had abandoned, if not betrayed, was likely to be restored
to power, and he must have been considerably relieved by the certain
intelligence of the sad scene at Leicester Abbey in the following autumn,
which secured him forever against the fear of being upbraided or punished
in this world according to his deserts. However, he had now lost all
dignity of character, and henceforth he was used as a vile instrument to
apply the criminal law for the pleasure of the tyrant on the throne, whose
relish for blood soon began to display itself, and became more eager the
more it was gratified.
Henry retaining all the doctrines of the Roman Catholic religion which we
Protestants consider most objectionable, but making himself pope in
England in place of the Bishop of Rome, laws were enacted subjecting to
the penalties of treason all who denied his _supremacy_;[36] and many of
these offenders were tried and condemned by Lord Chief Justice Fitzjames,
although he was suspected of being in his heart adverse to all innovation
in religion.
I must confine myself to the two most illustrious victims sacrificed by
him--Fisher, Bishop of Rochester, and Sir Thomas More. Henry, not
contented with having them attainted of _misprision of treason_, for which
they were suffering the sentence of forfeiture of all their property and
imprisonment during life, was determined to bring them both to the block,
and for this purpose issued a special commission to try them on the
capital charge of having denied his supremacy. The lord chancellor was
first commissioner; but it was intended that the responsibility and the
odium should chiefly rest on the Lord Chief Justice Fitzjames, who was
joined in the commission along with several other common law judges of
inferior rank.
The case against the Bishop of Rochester rested on the evidence of Rich,
the solicitor general, who swore he had heard the prisoner say, "I believe
in my conscience, and by my learning I assuredly know, that the king
neither is, nor by right can be, supreme head of the church of England;"
but admitted that this was in a confidential conversation, which he had
introduced by declaring that "he came from the king to ask what the
bishop's opinion was upon this question, and by assuring him that it never
should be mentioned to any one except the king, and that the king had
promised he never should be drawn into question for it afterwards." The
prisoner contending that he was not guilty of the capital crime charged
for words so spoken, the matter was referred to the judges.
"Lord Chief Justice Fitzjames, in their names, declared 'that this message
or promise from the king to the prisoner neither did nor could, by rigor
of law, discharge him; but in so declaring of his mind and conscience
against the _supremacy_--yea, though it were at the king's own request or
commandment--he committed treason by the statute, and nothing can
discharge him from death but the king's pardon.'"
_Bishop of Rochester._--"Yet I pray you, my lords, consider that by all
equity, justice, worldly honesty, and courteous dealing, I cannot, as the
case standeth, be directly charged therewith as with treason, though I had
spoken the words indeed, the same not being spoken maliciously, but in the
way of advice or counsel, when it was required of me by the king himself;
and that favor the very words of the statute do give me, being made only
against such as shall '_maliciously_ gainsay the king's supremacy,' and
none other; wherefore, although by rigor of law you may take occasion thus
to condemn me, yet I hope you cannot find law, except you add rigor to
that law, to cast me down, which herein I have not deserved."
_Fitzjames, C. J._--"All my brethren are agreed that '_maliciously_' is a
term of art and an inference of law, not a qualification of fact. In
truth, it is a superfluous and void word; for if a man speak against the
king's supremacy by any manner of means, that speaking is to be understood
and taken in law as _malicious_."
_Bishop of Rochester._--"If the law be so, then it is a hard exposition,
and (as I take it) contrary to the meaning of them that made the law, as
well as of ordinary persons who read it. But then, my lords, what says
your wisdom to this question, 'Whether a single testimony may be admitted
to prove me guilty of treason; and may it not be answered by my negative?'
Often have I heard it said, that to overcome the presumption from the oath
of allegiance to the king's majesty, and to guard against the dire
consequences of the penalties for treason falling on the head of an
innocent man, none shall be convicted thereof save on the evidence of two
witnesses at the least."
_Fitzjames, C. J._--"This being the king's case, it rests much in the
conscience and discretion of the jury; and as they upon the evidence shall
find it, you are either to be acquitted or else to be condemned."
The report says that "the bishop answered with many more words, both
wisely and profoundly uttered, and that with a mervailous, couragious, and
rare constancy, insomuch as many of his hearers--yea, some of the
judges--lamented so grievously, that their inward sorrow was expressed by
the outward teares in their eyes, to perceive such a famous and reverend
man in danger to be condemned to a cruell death upon so weake evidence,
given by such an accuser, contrary to all faith, and the promise of the
king himself."
A packed jury, being left to their conscience and discretion, found a
verdict of guilty; and Henry was able to make good his saying, when he was
told that the pope intended to send Bishop Fisher a cardinal's hat--"'Fore
God, then, he shall wear it on his shoulders, for I will have his head
off."
The conduct of the chief justice at the trial of Sir Thomas More was not
less atrocious. After the case for the crown had been closed, the
prisoner, in an able address to the jury, clearly proved that there was
no evidence whatever to support the charge, and that he was entitled to an
acquittal; when Rich, the solicitor general, was permitted to present
himself in the witness box, and to swear falsely, that "having observed,
in a private conversation with the prisoner in the Tower, 'No Parliament
could make a law that God should not be God,'[37] Sir Thomas replied, 'No
more can the Parliament make the king supreme head of the church.'"
A verdict of guilty was pronounced against the prisoner, notwithstanding
his solemn denial of ever having spoken these words. He then moved, in
arrest of judgment, that the indictment was insufficient, as it did not
properly follow the words of the statute which made it high treason to
deny the king's supremacy, even supposing that Parliament had power to
pass such a statute. The lord chancellor, whose duty it was, as head of
the commission, to pass the sentence--"not willing," says the report, "to
take the whole load of his condemnation on himself, asked in open court
the advice of Sir John Fitzjames, the lord chief justice of England,
whether the indictment was valid or no."
_Fitzjames, C. J._--"My lords all, by St. Gillian, (for that was always
his oath,) I must needs confess that if the act of Parliament be not
unlawful, then the indictment is not, in my conscience, invalid."
_Lord Chancellor._--"_Quid adhuc desideramus, testimonium? Reus est
mortis._ (What more do we need? He is worthy of death.) Sir Thomas More,
you being, by the opinion of that reverend judge, the chief justice of
England, and of all his brethren, duly convicted of high treason, this
court doth adjudge that you be carried back to the Tower of London, and
that you be thence drawn on a hurdle to Tyburn, where you are to be hanged
till you are half dead, and then being cut down alive and embowelled, and
your bowels burnt before your face, you are to be beheaded and quartered,
your four quarters being set up over the four gates of the city, and your
head upon London Bridge."
No one can deny that Lord Chief Justice Fitzjames was an accessory to this
atrocious murder.
The next occasion of his attracting the notice of the public was when he
presided at the trials of Smeaton and the other supposed gallants of Anne
Boleyn. Luckily for him, no particulars of these trials have come down to
us, and we remain ignorant of the arts by which a conviction was obtained,
and even a _confession_--although there is every reason to believe that
the parties were innocent. According to the rules of evidence which then
prevailed, the convictions and confessions of the gallants were to be
given in evidence to establish the guilt of the unhappy queen, for whose
death Henry was now as impatient as he had once been to make her his wife.
When the lord high steward and the peers assembled for her trial,
Fitzjames and the other judges attended, merely as assessors, to advise on
any point of law which might arise. I do not find that they were consulted
till the verdict of guilty had been recorded, and sentence was to be
pronounced. _Burning_ was the death which the law appointed for a woman
attainted of treason; yet as Anne had been Queen of England, some peers
suggested that it might be left to the king to determine whether she
should die such a cruel and ignominious death, or be _beheaded_, a
punishment supposed to be attended with less pain and less disgrace. But
then a difficulty arose whether, although the king might remit all the
atrocities of the sentence on a man for treason, except beheading, which
is part of it, he could order a person to be beheaded who was sentenced to
be burnt. A solution was proposed, that she should be sentenced by the
lord high steward to be "burnt or beheaded at the king's pleasure;" and
the opinion of the judges was asked, "whether such a sentence could be
lawfully pronounced."
_Fitzjames, C. J._--"My lords, neither myself nor any of my learned
brothers have ever known or found in the records, or read in the books, or
known or heard of, a sentence of death in the alternative or disjunctive,
and incline to think that it would be bad for uncertainty. The law
delights in certainty. Where a choice is given, by what means is the
choice to be exercised? And if the sheriff receives no special directions,
what is he to do? Is sentence to be stayed till special directions are
given by the king? and if no special directions are given, is the
prisoner, being attainted, to escape all punishment? Prudent antiquity
advises you _stare super antiquas vias_; and that which is without
precedent is without safety."
After due deliberation, it was held that an absolute sentence of beheading
would be lawful, and it was pronounced accordingly; the court being
greatly comforted by recollecting that no writ of error lay, and that
their judgment could not be reversed.
Fitzjames died in the year 1539, before this judgment served as a
precedent for that upon the unfortunate Queen Catharine Howard; and he was
much missed when the bloody statute of the Six Articles brought so many,
both of the old and of the reformed faith, on capital charges, before the
Court of King's Bench.
CHAPTER V.
THOMAS FLEMING.
The greatest part of my readers never before read or heard of the name of
Thomas Fleming; yet, starting in the profession of the law with Francis
Bacon, he was not only preferred to him by attorneys, but by prime
ministers, and he had the highest professional honors showered upon him,
while the immortal philosopher, orator, and fine writer continued to
languish at the bar without any advancement, notwithstanding all his
merits and all his intrigues. But Fleming had superior good fortune, and
enjoyed temporary consequences, because he was a mere lawyer--because he
harbored no idea or aspirations beyond the routine of Westminster
Hall--because he did not mortify the vanity of the witty, or alarm the
jealousy of the ambitious.
He was the younger son of a gentleman of small estate in the Isle of
Wight. I do not find any account of his early education, and very little
interest can now be felt respecting it; although we catch so eagerly at
any trait of the boyhood of his rival, whom he despised. Soon after he was
called to the bar, by unwearied drudgery he got into considerable
practice; and it was remarked that he always tried how much labor he could
bestow upon every case intrusted to him, while his more lively competitors
tried with how little labor they could creditably perform their duty.
In the end of the year 1594, he was called to the degree of serjeant,
along with eight others, and was thought to be the most deeply versed in
the law of real actions of the whole batch. It happened that, soon after,
there was a vacancy in the office of solicitor general, on the promotion
of Sir Edward Coke to be attorney general. Bacon moved heaven and earth
that he himself might succeed to it. He wrote to his uncle, Lord Treasurer
Burleigh, saying, "I hope you will think I am no unlikely piece of wood to
shape you a true servant of." He wrote to the Queen Elizabeth, saying, "I
affect myself to a place of my profession, such as I do see divers younger
in proceeding to myself, and men of no great note, do without blame aspire
unto; but if your majesty like others better, I shall, with the
Lacedemonian, be glad that there is such choice of abler men than myself."
He accompanied this letter with a valuable jewel, to show off her beauty.
He did what he thought would be still more serviceable, and, indeed,
conclusive; he prevailed upon the young Earl of Essex, then in the highest
favor with the aged queen, earnestly to press his suit. But the
appointment was left with the lord treasurer, and he decided immediately
against his nephew, who was reported to be no lawyer, from giving up his
time to profane learning--who had lately made an indiscreet, although very
eloquent, speech in the House of Commons--and who, if promoted, might be a
dangerous rival to his cousin, Robert Cecil, then entering public life,
and destined by his sire to be prime minister. The cunning old fox then
inquired who would be a competent person to do the queen's business in her
courts, and would give no uneasiness elsewhere; and he was told by several
black-letter judges whom he consulted that "Serjeant Fleming was the man
for him." After the office had been kept vacant by these intrigues above a
year, Serjeant Fleming was actually appointed. Bacon's anguish was
exasperated by comparing himself with the new solicitor; and in writing
to Essex, after enumerating his own pretensions, he says, "When I add
hereunto the obscureness and many exceptions to my competitor, I cannot
but conclude with myself that no man ever had a more exquisite disgrace."
He resolved at first to shut himself up for the rest of his days in a
cloister at Cambridge. A soothing message from the queen induced him to
remain at the bar; but he had the mortification to see the man whom he
utterly despised much higher in the law than himself, during the remainder
of this and a considerable part of the succeeding reign.
Fleming, immediately upon his promotion, gave up his serjeantship, and
practised in the Court of Queen's Bench. He was found very useful in doing
the official business, and gave entire satisfaction to his employers.
At the calling of a new Parliament, in the autumn of 1601, he was returned
to the House of Commons for a Cornish borough; and, according to the usual
practice at that time, he ought, as solicitor general, to have been
elected speaker; but his manner was too "lawyer-like and ungenteel" for
the chair, and Serjeant Croke, who was more presentable, was substituted
for him.
He opened his mouth in the house only once, and then he broke down. This
was in the great debate on the grievance of monopolies. He undertook to
defend the system of granting to individuals the exclusive right of
dealing in particular commodities; but when he had described the manner in
which patents passed through the different offices before the great seal
is put to them, he lost his recollection and resumed his seat.
Bacon, now member for Middlesex, to show what a valuable solicitor
general the government had lost, made a very gallant speech, in which he
maintained that "the queen, as she is our sovereign, hath both an
enlarging and restraining power: for, by her prerogative, she may, 1st,
set at liberty things restrained by statute law or otherwise; and 2dly, by
her prerogative she may restrain things which be at liberty." He concluded
by expressing the utmost horror of introducing any bill to meddle with the
powers of the crown upon the subject, and protesting that "the only lawful
course was to leave it to her majesty of her own free will to correct any
hardships, if any had arisen in the exercise of her just rights, as the
arbitress of trade and commerce in the realm."
This pleased her exceedingly, and even softened her ministers, insomuch
that a promise was given to promote Fleming as soon as possible, and to
appoint Bacon in his place. In those days there never existed the remotest
notion of dismissing an attorney or solicitor general, any more than a
judge; for, though they all alike held _during pleasure_, till the
accession of the house of Stuart the tenure of all of them was practically
secure. An attempt was made to induce Fleming to accept the appointment of
queen's serjeant, which would have given him precedence over the attorney
general; but this failed, for he would thereby have been considered as put
upon the shelf, instead of being on the highway to promotion.
Elizabeth died, leaving Bacon with no higher rank than that of queen's
counsel; and on the accession of James I., Fleming was reappointed
solicitor general.
The event justified his firmness in resisting the attempt to shelve him,
for in the following year, on the death of Sir William Peryam, he was
appointed chief baron of the Exchequer. While he held this office, he sat
along with Lord Chief Justice Popham on the trial of Guy Fawkes and the
gunpowder conspirators; but he followed the useful advice for subordinate
judges on such an occasion--"to look wise, and to say nothing."
His most memorable judgment as chief baron was in what is called "The
Great Case of Impositions." This was, in truth, fully as important as
Hampden's case of ship money, but did not acquire such celebrity in
history, because it was long acquiesced in, to the destruction of public
liberty, whereas the other immediately produced the civil war. After an
act of Parliament had passed at the commencement of James's reign, by
which an import duty of 2_s._ 6_d._ per cwt. was imposed upon currants, he
by his own authority laid on an additional duty of 7_s._ 6_d._, making
10_s._ per cwt. Bates, a Levant merchant, who had imported a cargo of
currants from Venice, very readily paid the parliamentary duty of 2_s._
3_d._ upon it, but refused to pay more; thereupon the attorney general
filed an information in the Court of Exchequer, to compel him to pay the
additional duty of 7_s._ 6_d._; so the question arose, whether he was by
law compellable to do so. After arguments at the bar which lasted many
days,--
_Fleming, C. B._, said: "The defendant's plea in this case is without
precedent or example, for he alleges that the imposition which the king
has laid is '_indebitè, injustè, et contra leges Angliæ imposita_, and,
therefore, he refused to pay it.' The king, as is commonly said in our
books, _cannot do wrong_; and if the king seize any land without cause, I
ought to sue to him in humble manner (_humillime supplicavit_, &c.), and
not in terms of opposition. The matter of the plea first regards the
prerogative, and to derogate from that is a part most undutiful in any
subject. Next it concerns the transport of commodities into and out of
the realm, the due regulation of which is left to the king for the public
good. The imposition is properly upon currants, and not upon the
defendant, for upon him no imposition shall be but by Parliament.(!) The
things are currants, a foreign commodity. The king may restrain the person
of a subject in leaving or coming into the realm, and _a fortiori_, may
impose conditions on the importation or exportation of his goods. To the
king is committed the government of the realm; and Bracton says, 'that for
his discharge of his office God hath given him the power to govern.' This
power is double--ordinary and absolute. The ordinary is for the profit of
particular subjects--the determination of civil justice; that is nominated
by civilians _jus privatum_, and it cannot be changed without Parliament.
The absolute power of the king is applied for the general benefit of the
people; it is most properly named _policy_, and it varieth with the time,
according to the wisdom of the king, for the common good. If this
imposition is matter of state, it is to be ruled by the rules of policy,
and the king hath done well, instead of 'unduly, unjustly, and contrary to
the laws of England.' All commerce and dealings with foreigners, like war
and peace and public treaties, are regulated and determined by the
absolute power of the king. No importation or exportation can be but at
the king's ports. They are his gates, which he may open or close when and
on what conditions he pleases. He guards them with bulwarks and
fortresses, and he protects ships coming hither from pirates at sea; and
if his subjects are wronged by foreign princes, he sees that they are
righted. Ought he not, then, by the custom he imposes, to enable himself
to perform these duties? The impost to the merchant is nothing, for those
who wish for his commodities must buy them subject to the charge; and, in
most cases, it shall be paid by the foreign grower, and not by the English
consumer. As to the argument that the currants are _victual_, they are
rather a delicacy, and are no more necessary than wine, on which the king
lays what customs seemeth him good. For the amount of the imposition it is
not unreasonable, seeing that it is only four times as much as it was
before. The wisdom and providence of the king must not be disputed by the
subject; by intendment they cannot be severed from his person. And to
argue _a posse ad actum_, because by his power he may do ill, is no
argument to be used in this place. If it be objected that no reason is
assigned for the rise, I answer it is not reasonable that the king should
express the cause and consideration of his actions; these are _arcana
regis_, and it is for the benefit of every subject that the king's
treasure should be increased."
He then at enormous length went over all the authorities and acts of
Parliament, contending that they all prove the king's power to lay what
taxes he pleases on goods imported, and he concluded by giving judgment
for the crown.
Historians take no notice of this decision, although it might have
influenced the destinies of the country much more than many of the battles
and sieges with which they fill their pages. Had our foreign commerce then
approached its present magnitude, Parliaments would never more have met in
England,--duties on tea, sugar, timber, tobacco, and corn, imposed by
royal proclamation, being sufficient to fill the exchequer,--and the
experiment of ship money would never have been necessary. The chief baron
most certainly misquotes, misrepresents, and mystifies exceedingly; but,
however fallacious his reasoning, the judgment ought not to be passed over
in silence by those who pretend to narrate our annals, for it was
pronounced by a court of competent jurisdiction, and it was acted upon for
years as settling the law and constitution of the country.[38]
King James declared that Chief Baron Fleming was a judge to his heart's
content. He had been somewhat afraid when he came to England that he might
hear such unpalatable doctrines as had excited his indignation in
Buchanan's treatise, "_De Jure Regni apud Scotis_," and he expressed great
joy in the solemn recognition that he was an absolute sovereign. Our
indignation should be diverted from him and his unfortunate son, to the
base sycophants, legal and ecclesiastical, who misled them.
On the death of Popham, no one was thought so fit to succeed him as
Fleming, of whom it was always said that, "_though slow, he was sure_;"
and he became chief justice of England the very same day on which Francis
Bacon mounted the first step of the political ladder, receiving the
comparatively humble appointment of solicitor general.
Lord Chief Justice Fleming remained at the head of the common law rather
more than six years. During that time the only case of general interest
which arose in Westminster Hall was that of the Postnati. As might be
expected, to please the king, he joined cordially in what I consider the
illegal decision, that persons born in Scotland after the accession of
James to the throne of England, were entitled to all the privileges of
natural born subjects in England, although it was allowed that Scotland
was an entirely separate and independent kingdom. Luckily, the question is
never likely again to arise since the severance of the crown of Hanover
from that of Great Britain; but if it should, I do not think that Calvin's
case could by any means be considered a conclusive authority, being
founded upon such reasoning as that "if our king conquer a Christian
country, its laws remain till duly altered; whereas if he conquer an
infidel country, the laws are _ipso facto_ extinct, and he may massacre
all the inhabitants."
Lord Chief Justice Fleming took the lead in the prosecution of the
Countess of Shrewsbury before the Privy Council, on the charge of having
refused to be examined respecting the part she had acted in bringing about
a clandestine marriage, in the Tower of London, between the Lady Arabella
Stuart, the king's cousin, and Sir William Somerset, afterwards Duke of
Somerset. He laid it down for law, that "it was a high misdemeanor to
marry, or to connive at the marriage of any relation of the king without
his consent, and that the countess's refusal to be examined was 'a
contempt of the king, his crown and dignity, which, if it were to go
unpunished, might lead to many dangerous enterprises against the state.'
He therefore gave it as his opinion that she should be fined £10,000 and
confined during the king's pleasure."
While this poor creature presided in the King's Bench, he was no doubt
told by his officers and dependants that he was the greatest chief justice
that had appeared there since the days of Gascoigne and Fortescue; but he
was considered a very small man by all the rest of the world, and he was
completely eclipsed by Sir Edward Coke, who at the same time was chief
justice of the Common Pleas, and who, to a much more vigorous intellect
and deeper learning, added respect for constitutional liberty and
resolution at every hazard to maintain judicial independence. From the
growing resistance in the nation to the absolute maxims of government
professed by the king and sanctioned by almost all his judges, there was a
general desire that the only one who stood up for law against prerogative
should be placed in a position which might give greater weight to his
efforts on the popular side; but of this there seemed no prospect, for the
subservient Fleming was still a young man, and likely to continue many
years the tool of the government.
In the midst of these gloomy anticipations, on the 15th day of October,
1613, the joyful news was spread of his sudden death. I do not know, and I
have taken no pains to ascertain, where he was buried, or whether he left
any descendants. In private life he is said to have been virtuous and
amiable, and the discredit of his incompetency in high office ought to be
imputed to those who placed him there, instead of allowing him to prose on
as a drowsy serjeant at the bar of the Common Pleas, the position for
which nature had intended him.
CHAPTER VI.
NICHOLAS HYDE.
After the abrupt dissolution of the second Parliament of Charles I.
without the grant of a supply, all redress of grievances being refused,
the plan was deliberately formed of discontinuing entirely the use of
popular assemblies in England, and of ruling merely by prerogative. For
this purpose it was indispensably necessary that the king should have the
power of imposing taxes, and the power of arbitrary imprisonment. He began
to exercise both these powers by assessing sums which all persons of
substance were called upon to contribute to the revenue according to their
supposed ability, and by issuing warrants for committing to jail those who
resisted the demand. But these measures could not be rendered effectual
without the aid of the judges; for hitherto in England the validity of any
fiscal imposition might be contested in a court of justice; and any man
deprived of his liberty might, by suing out a writ of _habeas corpus_,
have a deliberate judgment upon the question "whether he was lawfully
detained in custody or not." Sir Thomas Darnel, Sir Edmund Hampden, and
other public-spirited men, having peremptorily refused to pay the sums
assessed upon them, had been cast into prison, and were about to seek
legal redress for their wrongs.
In the coming legal contest, almost every thing would depend upon the
chief justice of the King's Bench. According to a well-known fashion which
prevailed in those times, the attorney general, by order of the
government, sounded Sir Randolph Crewe, then holding that office, to which
he had been appointed hardly two years before, respecting his opinions on
the agitated points, and was shocked to hear a positive declaration from
him that by the law of England, no tax or talliage, under whatever name or
disguise, can be laid upon the people without the authority of Parliament,
and that the king cannot imprison any of his subjects without a warrant
specifying the offence with which they are charged. This being reported to
the cabinet, Sir Randolph Crewe was immediately dismissed from his office;
and, in a few weeks after, Sir Nicholas Hyde was made chief justice in his
stead. He was the uncle of the great Lord Clarendon. They were sprung from
the ancient family of "_Hyde of that ilk_" in the county palatine of
Chester; their branch of it having migrated, in the sixteenth century,
into the west of England. The chief justice was the fourth son of Lawrence
Hyde, of Gussage St. Michael, in the county of Dorset.
Before being selected as a fit tool of an arbitrary government, he had
held no office whatever; but he had gained the reputation of a sound
lawyer, and he was a man of unexceptionable character in private life. He
was known to be always a stanch stickler for prerogative; but this was
supposed to arise rather from the sincere opinion he had formed of what
the English constitution was, or ought to be, than from a desire to
recommend himself for promotion. He is thus good naturedly introduced by
Rushworth:--
"Sir Randolf Crewe, showing no zeal for the advancement of the loan, was
removed from his place of lord chief justice, and Sir Nicholas Hyde
succeeded in his room--a person who, for his parts and abilities, was
thought worthy of that preferment; yet, nevertheless, came to the same
with a prejudice, coming in the place of one so well-beloved, and so
suddenly removed."
Whether he was actuated by mistaken principle or by profligate ambition,
he fully justified the confidence reposed in him by his employers. Soon
after he took his seat in the Court of King's Bench, Sir Thomas Darnel and
several others, committed under the same circumstances, were brought up
before him on a writ of _habeas corpus_; and the question arose whether
the King of England, by _lettre de cachet_, had the power of perpetual
imprisonment without assigning any cause. The return of the jailer, being
read, was found to set out, as the only reason for Sir Thomas Darnel's
detention, a warrant, signed by two privy councillors, in these words:--
"Whereas, therefore, the body of Sir Thomas Darnel hath been committed to
your custody, these are to require you still to detain him, and to let you
know that he was and is committed BY THE SPECIAL COMMAND OF HIS MAJESTY."
Lord Chief Justice Hyde proceeded with great temper and seeming respect
for the law, observing, "Whether the commitment be by the king or others,
this court is a place where the king doth sit in person, and we have power
to examine it; and if any man hath injury or wrong by his imprisonment, we
have power to deliver and discharge him; if otherwise, he is to be
remanded by us to prison again."
Selden, Noy,[40] and the other counsel for the prisoners, encouraged by
this intimation, argued boldly that the warrant was bad on the face of it,
_per speciale mandatum domini regis_ being too general, without specifying
an offence for which a person was liable to be detained without bail;
that the warrant should not only state the authority to imprison, but the
cause of the imprisonment; and that if this return were held good, there
would be a power of shutting up, till a liberation by death, any subject
of the king, without trial and without accusation. After going over all
the common law cases and the acts of Parliament upon the subject, from
MAGNA CHARTA downwards, they concluded with the _dictum_ of Paul the
apostle, "It is against reason to send a man to prison without showing a
cause."
_Hyde, C. J._--"This is a case of very great weight and great expectation.
I am sure you look for justice from hence, and God forbid we should sit
here but to do justice to all men, according to our best skill and
knowledge; for it is our oaths and duties so to do. We are sworn to
maintain all prerogatives of the king: that is one branch of our oath; but
there is another--to administer justice equally to all people. That which
is now to be judged by us is this: 'Whether, where one is committed by the
king's authority, and by cause declared of his commitment, we ought to
deliver him by bail, or to remand him.'"
From such a fair beginning,[41] there must have been a general
anticipation of a just judgment; but, alas! his lordship, without
combating the arguments, statutes, or texts of Scripture relied upon,
said, "The court must be governed by precedents;"[42] and then going over
all the precedents which had been cited, he declared that there was not
one where, there being a warrant _per speciale mandatum domini regis_, the
judges had interfered and held it insufficient. He said he had found a
resolution of all the judges in the reign of Queen Elizabeth, that if a
man be committed by the commandment of the king, he is not to be delivered
by a _habeas corpus_ in this court, "for we know not the cause of the
commitment." Thus he concluded:--
"What can we do but walk in the steps of our forefathers? Mr. Attorney
hath told you the king has done it for cause sufficient, and we trust him
in great matters. He is bound by law, and he bids us proceed by law; we
are sworn so to do, and so is the king. We make no doubt the king, he
knowing the cause why you are imprisoned, will have mercy. On these
grounds we cannot deliver you, but you must be remanded."[43]
This judgment was violently attacked in both houses of Parliament. In the
House of Lords the judges were summoned, and required to give their
reasons for it. Sir Nicholas Hyde endeavored to excuse himself and his
brethren from this task by representing it as a thing they ought not to do
without warrant from the king. Lord Say observed, "If the judges will not
declare themselves, we must take into consideration the point of our
privilege." To soothe the dangerous spirit which disclosed itself,
Buckingham obtained leave from the king that the judges should give their
reasons, and Sir Nicholas Hyde again went over all the authorities which
had been cited in the King's Bench in support of the prerogative. These
were not considered by any means satisfactory; but, as the chief justice
could no longer be deemed contumacious, he escaped the commitment with
which he had been threatened. Sir Edward Coke,[44] and the patriots in the
House of Commons, were not so easily appeased, and they for some time
threatened Lord Chief Justice Hyde and his brethren with an impeachment;
but it was hoped that all danger to liberty would be effectually guarded
against for the future by compelling the reluctant king to agree to the
PETITION OF RIGHT. Before Charles would give the royal assent to
it--meaning not to be bound by it himself, but afraid that the judges
would afterwards put limits to his power of arbitrary imprisonment--he
sent for Chief Justice Hyde and Chief Justice Richardson, of the Common
Pleas, to Whitehall, and directed them to return to him the answer of
themselves and their brethren to this question, "Whether in no case
whatsoever the king may commit a subject without showing cause." The
answer shows that they had been daunted by the denunciations of Sir Edward
Coke, and that they were driven to equivocate: "We are of opinion that, by
the general rule of law, the cause of commitment by his majesty ought to
be shown; yet some cases may require such secrecy that the king may
commit a subject without showing the cause, for a convenient time."
Charles then delivered to them a second question, and desired them to keep
it very secret, "Whether, if to a _habeas corpus_ there be returned a
warrant from the king without any special cause, the judges ought to
liberate him before they understand from the king what the cause is." They
answered, "If no cause be assigned in the warrant, the party ought, by the
general rule of law, to be liberated; but, if the case requireth secrecy,
and may not presently be disclosed, the court, in its discretion, may
forbear to liberate the prisoner for a convenient time, till they are
advertised of the truth thereof." He then came to the point with his third
question, "Whether, if the king grant the Commons' PETITION, he doth not
thereby exclude himself from committing or restraining a subject without
showing a cause." Hyde reported this response: "Every law, after it is
made, hath its exposition, which is to be left to the courts of justice to
determine; and, although the PETITION be granted, there is no fear of
conclusion, as is intimated in the question."
The judges having thus pledged themselves to repeal the act for him by
misconstruing it,[45] he allowed it to be added to the statute book. No
sooner was the Parliament that passed it abruptly dissolved than it was
flagrantly violated, and Selden, Sir John Eliot, and other members of the
House of Commons, were arrested for the speeches they had delivered, and
for requiring the speaker to put from the chair a motion which had been
made and seconded. This proceeding was more alarming to public liberty
than any thing that had been before attempted by the crown; if it
succeeded, there was no longer the hope of any redress in Parliament for
the corrupt decisions of the common law courts.
To make all sure by an extrajudicial opinion,[46] Lord Chief Justice Hyde
and the other judges were assembled at Serjeants' Inn, and, by the king's
command, certain questions were put to them by the attorney general. The
answers to these, given by the mouth of the chief justice, if acted upon,
would forever have extinguished the privilege and the independence of the
House of Commons: "That a Parliament man committing an offence against the
king in Parliament, not in a parliamentary course, may be punished after
the Parliament is ended; for, though regularly he cannot be compelled out
of Parliament to answer things done in Parliament in a parliamentary
course, it is otherwise where things are done exorbitantly;" and "that by
false slanders to bring the lords of the council and the judges, not in a
parliamentary way, into the hatred of the people, and the government into
contempt, was punishable out of Parliament, in the Star Chamber, as an
offence committed in Parliament beyond the office, and besides the duty,
of a Parliament man."
The parties committed were brought up by _habeas corpus_, and, the public
being much scandalized, an offer was made that they might be bailed; but,
they refusing to give bail, which they said would be compromising the
privileges of the House of Commons, Lord Chief Justice Hyde remanded them
to jail.
The attorney general having then filed an ex-officio information against
them for their misconduct in Parliament, they pleaded to the jurisdiction
of the court "because these offences, being supposed to be done in
Parliament, ought not to be punished in this court, or elsewhere than in
Parliament."
Chief Justice Hyde tried at once to put an end to the case by saying that
"all the judges had already resolved with one voice, that an offence
committed in Parliament, criminally or contemptuously, the Parliament
being ended, rests punishable in the Court of King's Bench, in which the
king by intendment sitteth."
The counsel for the defendants, however, would be heard, and were heard in
vain; for Chief Justice Hyde treated their arguments with scorn, and
concluded by observing, "As to what was said, that an 'inferior court
cannot meddle with matters done in a superior,' true it is that an
inferior court cannot meddle with the _judgments_ of a superior court; but
if particular members of a superior court offend, they are ofttimes
punishable in an inferior court--as if a judge shall commit a capital
offence in this court, he may be arraigned thereof at Newgate. The
behavior of Parliament men ought to be parliamentary. Parliament is a
higher court than this, but every member of Parliament is not a court, and
if he commit an offence we may punish him. The information charges that
the defendants acted _unlawfully_, and they could have no privilege to
violate the law. No outrageous speeches have been made against a great
minister of state in Parliament that have not been punished." The plea
being overruled, the defendants were sentenced to be imprisoned during the
king's pleasure, and to be fined, Sir John Eliot in £2000, and the others
in smaller sums.
This judgment was severely condemned by the House of Commons at the
meeting of the Long Parliament, and was afterwards reversed, on a writ of
error, by the House of Lords. But Lord Chief Justice Hyde escaped the fate
of his predecessor, Chief Justice Tresilian, who was hanged for
promulgating similar doctrines, for he was carried off by disease when he
had disgraced his office four years and nine months. He died at his house
in Hampshire, on the 25th of August, 1631.
In justice to the memory of Sir Nicholas Hyde, I ought to mention that he
was much respected and lauded by true courtiers. Sir George Croke
describes him as "a grave, religious, discreet man, and of great learning
and piety." Oldmixon pronounces him to have been "a very worthy
magistrate," and highly applauds his judgment in favor of the power of the
crown to imprison and prosecute Parliament men for what they have done in
the House of Commons.
CHAPTER VII.
JOHN BRAMPSTON.
On the vacancy in the office of chief justice of the King's Bench, created
by the death of Sir Thomas Richardson, A. D. 1635, the king and his
ministers were exceedingly anxious to select a lawyer fitted to be his
successor. Resolved to raise taxes without the authority of Parliament,
they had launched their grand scheme of ship money, and they knew that its
validity would speedily be questioned. To lead the opinions of the judges,
and to make a favorable impression on the public, they required a chief on
whose servility they could rely, and who, at the same time, should have a
great reputation as a lawyer, and should be possessed of a tolerable
character for honesty. Such a man was Mr. Serjeant Brampston.
He was born at Maldon, in Essex, of a family founded there in the reign of
Richard II. by a citizen of London, who had made a fortune in trade and
had served the office of sheriff. When very young, he was sent to the
university of Cambridge; and there he gained high renown by his skill in
disputation, which induced his father to breed him to the bar.
Accordingly, he was transferred to the Middle Temple, and studied law
there for seven years with unwearied assiduity. At the end of this period,
he was called to the bar, having then amassed a store of law sufficient to
qualify him at once to step upon the bench. Different public bodies strove
to have the benefit of his advice; and very soon he was standing counsel
for his own university, and likewise for the city of London, with an
annual fee _pro concilio impenso et impendendo_, (for counsel given and to
be given.) Having been some years an "apprentice," he took the degree of
serjeant at law.
According to a practice very common in our profession, he had, in the
language of Mr. Gurney, the famous stenographer, "started in the sedition
line," that is, defending persons prosecuted for political offences by the
government. He was counsel for almost all the patriots who, in the end of
the reign of James I. and the beginning of the reign of Charles I., were
imprisoned for their refractory conduct in the House of Commons; and one
of the finest arguments to be found in our books is one delivered by him
in Sir Thomas Darnel's case, to prove that a warrant of commitment by
order of the king, without specifying the offence, is illegal.
He refused a seat in the House of Commons, as it suited him better to
plead for those who were in the Tower than to be sent thither himself. By
and by, the desire of obtaining the honors of the profession waxed strong
within him, and he conveyed an intimation, by a friend, to the lord keeper
that it would be much more agreeable to him to be retained for the
government than to be always against it. The offer was accepted; he was
taken into the counsels of Noy, the attorney general, and he gave his
assistance in defending all stretches of prerogative. Promotions were now
showered down upon him; he was made chief justice of Ely, attorney general
to the queen, king's serjeant, and a knight. Although very zealous for the
crown, and really unscrupulous, he was anxious to observe decency of
deportment, and to appear never to transgress the line of professional
duty.
Noy[47] would have been the man to be appointed chief justice of the
King's Bench to carry through his tax by a judicial decision in its favor,
but he had suddenly died soon after the ship money writs were issued; and,
after him, Sir John Brampston was deemed the fittest person to place at
the head of the common law judges. On the 18th of April, 1635, his
installation took place, which was, no doubt, very splendid; but we have
no account of it except the following by Sir George Croke:--
"First, the lord keeper made a grave and long speech, signifying the
king's pleasure for his choice, and the duties of his place; to which,
after he had answered at the bar, returning his thanks to the king, and
promising his endeavor of due performance of his duty in his place, he
came from the bar into court, and there kneeling, took the oaths of
supremacy and allegiance: then standing, he took the oath of judge: then
he was appointed to come up to the bench, and then his patent (which was
only a writ) being read, the lord keeper delivered it to him. But Sir
William Jones (the senior puisne judge) said the patent ought to have been
read before he came up to the bench."[48]
In quiet times, Lord Chief Justice Brampston would have been respected as
an excellent judge. He was above all suspicion of bribery, and his
decisions in private causes were sound as well as upright. But, unhappily,
he by no means disappointed the expectations of the government.[49]
Soon after his elevation, he was instructed to take the opinion privately
of all the judges on the two celebrated questions:--
"1. Whether, in cases of danger to the good and safety of the kingdom, the
king may not impose ship money for its defence and safeguard, and by law
compel payment from those who refuse? 2. Whether the king be not the sole
judge both of the danger, and when and how it is to be prevented?"
There is reason to think that he himself was taken in by the craft of Lord
Keeper Coventry, who represented that the opinion of the twelve judges was
wanted merely for the king's private satisfaction, and that no other use
would be made of it. At a meeting of all the judges in Serjeant's Inn
Hall, Lord Chief Justice Brampston produced an answer to both questions in
the affirmative, signed by himself. Nine other judges, without any
hesitation, signed it after him; but two, Croke and Hutton, declared that
they thought the king of England never had such a power, and that, if he
ever had, it was taken away by the act _De Tallagio non concedendo_, the
Petition of Right, and other statutes; but they were induced to sign the
paper upon a representation that their signature was a mere formality.
The unscrupulous lord keeper, having got the paper into his possession,
immediately published it to the world as the unanimous and solemn decision
of all the judges of England; and payment of ship money was refused by
John Hampden alone.
His refusal brought on the grand trial, in the Exchequer Chamber, upon the
validity of the imposition. Lord Chief Justice Brampston, in a very long
judgment, adhered to the opinion he had before given for the legality of
the tax, although he characteristically expressed doubt as to the
regularity of the proceeding on technical grounds. Croke and Hutton
manfully insisted that the tax was illegal; but, all the other judges
being in favor of the crown, Hampden was ordered to pay his 20_s._
Soon after, the same point arose in the Court of King's Bench in the case
of the Lord Say, who, envying the glory which Hampden had acquired,
allowed his oxen to be taken as a distress for the ship money assessed
upon him, and brought an action of trespass for taking them. But Banks,
the attorney general, moved that counsel might not be permitted to argue
against what had been decided in the Exchequer Chamber; and Lord Chief
Justice Brampston said, "Such a judgment should be allowed to stand until
it were reversed in Parliament, and none ought to be suffered to dispute
against it."[50]
The crown lawyers were thrown into much perplexity by the freak of the
Rev. Thomas Harrison, a country parson, who can hardly be considered a
fair specimen of his order at that time, and must either have been a
little deranged in his intellect, or animated by an extraordinary
eagerness for ecclesiastical promotion. Having heard that Mr. Justice
Hutton, while on the circuit, had expressed an opinion unfavorable to ship
money, he followed him to London, and, while this reverend sage of the law
was seated with his brethren on the bench of the Court of Common Pleas,
and Westminster Hall was crowded with lawyers, suitors, and idlers,
marched up to him, and making proclamation, "_Oyez! Oyez! Oyez!_" said
with a loud voice, "Mr. Justice Hutton, you have denied the king's
supremacy, and I hereby charge you with being guilty of high treason." The
attorney general, however much he might secretly honor such an ebullition
of loyalty, was obliged to treat it as an outrage, and an _ex officio_
information was filed against the delinquent for the insult he had offered
to the administration of justice. At the trial the reverend defendant
confessed the speaking of the words, and gloried in what he had done,
saying,--
"I confess that judges are to be honored and revered as sacred persons so
long as they do their duty; but having taken the oath of supremacy many
times, I am bound to maintain it, and when it is assailed, as by the
denying of ship money, it is time for every loyal subject to strike in."
_Brampston, C. J._--"The denying of ship money may be, and I think is,
very wrong; but is it against the king's supremacy?" _Harrison._--"As a
loyal subject, I did labor the defence of his majesty, and how can I be
guilty of a crime? I say again that Mr. Justice Hutton has committed
treason, for upon his charge the people of the country do now deny ship
money. His offence being openly committed, I conceived it not amiss to
make an open accusation. The king will not give his judges leave to speak
treason, nor have they power to make or pronounce laws against his
prerogative. We are not to question the king's actions; they are only
between God and his own conscience. '_Sufficit regi, quod Deus est._' This
thesis I will stand to--that whatsoever the king in his conscience
thinketh he may require, we ought to yield."[51]
The defendant having been allowed to go on in this strain for a long time,
laying down doctrines new in courts of justice, although in those days
often heard from the pulpit, the chief justice at last interposed, and
said,--
"Mr. Harrison, if you have any thing to say in your own defence, proceed;
but this raving must not be suffered. Do you not think that the king may
govern his people by law?" _Harrison._--"Yes, and by something else too.
If I have offended his majesty in this, I do submit to his majesty, and
crave his pardon." _Brampston, C. J._--"Your 'If' will be very ill taken
by his majesty; nor can this be considered a submission."
The defendant, being found guilty, was ordered to pay a fine to the king
of £5000, and to be imprisoned--without prejudice to the remedy of Mr.
Justice Hutton by action. Such an action was accordingly brought, and so
popular was Mr. Justice Hutton, that he recovered £10,000 damages; whereas
it was said that, if the chief justice had been the plaintiff in an action
for defamation, he need not have expected more than a Norfolk groat.
Lord Chief Justice Brampston's services were likewise required in the Star
Chamber. He there zealously assisted Archbishop Laud in persecuting
Williams, Bishop of Lincoln, ex-keeper of the great seal. When the
sentence was to be passed on this unfortunate prelate, ostensibly for
tampering with the witnesses who were to give evidence against him on a
former accusation, which had been abandoned as untenable, but in reality
for opposing Laud's Popish innovations in religious ceremonies, Brampston
declaimed bitterly against the right reverend defendant, saying,--
"I find my Lord Bishop of Lincoln much to blame in persuading,
threatening, and directing of witnesses--a foul fault in any, but in him
most gross who hath _curam animarum_ throughout all his diocese. To
destroy men's souls is most odious, and to be severely punished. I do hold
him not fit to have the cure of souls, and therefore I do censure him to
be suspended _tam ab officio quam a beneficio_, to pay a fine of £10,000,
and to be imprisoned during the king's pleasure."
This sentence, although rigorously executed, did not satiate the vengeance
of the archbishop; and the bishop, while lying a prisoner in the Tower,
having received some letters from one of the masters of Westminster
School, using disrespectful language towards the archbishop, and calling
him "a little great man," a new information was filed against the bishop
for not having disclosed these letters to a magistrate, that the writer
might have been immediately brought to justice. Of course he was found
guilty; and when the deliberation arose about the punishment, thus spoke
Lord Chief Justice Brampston:--
"The concealing of the libel doth by no means clear my Lord Bishop of
Lincoln, for there is a difference between a letter which concerns a
private person and a public officer. If a libellous letter concern a
private person, he that receives it may conceal it in his pocket or burn
it; but if it concern a public person, he ought to reveal it to some
public officer or magistrate. Why should my Lord of Lincoln keep these
letters by him, but to the end to publish them, and to have them at all
times in readiness to be published? I agree in the proposed sentence,
that, in addition to a fine of £5000 to the king, he do pay a fine of
£3000 to the archbishop, seeing the offence is against so honorable a
person, and there is not the least cause of any grievance or wrong that he
hath done to my Lord of Lincoln. For his being degraded, I leave it to
those of the Ecclesiastical Court to whom it doth belong. As to the
pillory, I am very sorry and unwilling to give such a sentence upon any
man of his calling and degree. But when I consider the quality of the
person, and how much it doth aggravate the offence, I cannot tell how to
spare him; for the consideration that should mitigate the punishment adds
to the enormity of the offence."
As no clerical crime had been committed for which degradation could be
inflicted, and as it was thought not altogether decent that a bishop,
wearing his lawn sleeves, his rochet, and his mitre, should stand on the
pillory, to be pelted with brickbats and rotten eggs, the lord chief
justice was overruled respecting this last suggestion, and the sentence
was limited to the two fines, with perpetual imprisonment. The defendant
was kept in durance under it till the meeting of the Long Parliament, when
he was liberated; and, becoming an archbishop, he saw his persecutor take
his place in the Tower, while he himself was placed at the head of the
Church of England.
Now came the time when Lord Chief Justice Brampston himself was to
tremble. The first grievance taken up was ship money; and both houses
resolved that the tax was illegal, and that the judgment against Hampden
for refusing to pay it ought to be set aside. Brampston was much alarmed
when he saw Strafford and Laud arrested on a charge of high treason, and
Lord Keeper Finch obliged to fly beyond the seas.
The next impeachment voted was against Brampston himself and five of his
brethren; but they were more leniently dealt with, for they were only
charged with "high crimes and misdemeanors;" and happening to be in the
House of Lords when Mr. Waller brought up the impeachment, it was ordered
"that the said judges for the present should enter into recognizances of
£10,000 each to abide the censure of Parliament." This being done, they
enjoyed their liberty, and continued in the exercise of their judicial
functions; but Mr. Justice Berkeley, who had made himself particularly
obnoxious by his indiscreet invectives against the Puritans,[52] was
arrested while sitting on his tribunal in Westminster Hall, and committed
a close prisoner to Newgate.
Chief Justice Brampston tried to mitigate the indignation of the dominant
powers by giving judgment in the case of _Chambers_ v. _Sir Edward
Brunfield, Mayor of London_, against the legality of ship money. To an
action of trespass and false imprisonment, the defendant justified by his
plea under "a writ for not paying of money assessed upon the plaintiff
towards the finding of a ship." There was a demurrer to the plea, so that
the legality of the writ came directly in issue. The counsel for the
defendant rose to cite Hampden's case and Lord Say's case, in which all
their lordships had concurred, as being decisive in his favor; but
Brampston, C. J., said,--
"We cannot now hear this case argued. It hath been voted and resolved in
the upper House of Parliament and in the House of Commons, _nullo
contradicente_, that the said writ, and what was done by color thereof,
was illegal. Therefore, without further dispute thereof, the court gives
judgment for the plaintiff."[53]
The Commons were much pleased with this submissive conduct, but _pro
forma_ they exhibited articles of impeachment against the chief justice.
To the article founded on ship money he answered, "that at the conference
of the judges he had given it as his opinion that the king could only
impose the charge in case of necessity, and only during the continuance of
that necessity."
The impeachment was allowed to drop; and the chief justice seems to have
coquetted a good deal with the parliamentary leaders, for, after the king
had taken the field, he continued to sit in his court at Westminster, and
to act as an attendant to the small number of peers who assembled there,
constituting the House of Lords.
But when a battle was expected, Charles, being told that the chief justice
of England was chief coroner, and, by virtue of his office, on view of the
body of a rebel slain in battle, had authority to pronounce judgment of
attainder upon him, so as to work corruption of blood and forfeiture of
lands and goods, thought it would be very convenient to have such an
officer in the camp, and summoned Lord Chief Justice Brampston to appear
at head quarters in Yorkshire. The Lords were asked to give him leave of
absence, to obey the king's summons, but they commanded him to attend them
day by day at his peril. He therefore sent his two sons to make his excuse
to the king. His majesty was highly incensed by his asking leave of the
Lords, and--considering another apology that he made, about the infirmity
of his health and the difficulty of travelling in the disturbed state of
the country, a mere pretence--by a _supersedeas_ under the great seal
dismissed him from his office, and immediately appointed Sir Robert Heath
to be chief justice of England in his stead.
Brampston must now have given in his full adhesion to the parliamentary
party, for in such favor was he with them, that, when the treaty of
Uxbridge was proceeding, they made it one of their conditions that he
should be reappointed lord chief justice of the Court of King's Bench.
Having withdrawn entirely from public life, he spent the remainder of his
days at his country house in Essex. There he expired, on the 2d of
September, 1654, in the 78th year of his age. If courage and principle had
been added to his very considerable talents and acquirements, he might
have gained a great name in the national struggle which he witnessed; but,
from his vacillation, he fell into contempt with both parties; and,
although free from the imputation of serious crimes, there is no respect
entertained for his memory.
CHAPTER VIII.
ROBERT HEATH.
We must now attend to Sir Robert Heath, who was the last chief justice of
Charles I., and was appointed by him to pass judgment, not on the living,
but on the dead. If we cannot defend all his proceedings, we must allow
him the merit--which successful members of our profession can so seldom
claim--of perfect consistency; for he started as a high prerogative
lawyer, and a high prerogative lawyer he continued to the day of his
death.
He was of a respectable family of small fortune, in Kent, and was born at
Etonbridge in that county. He received his early education at Tonbridge
School, and was sent from thence to St. John's College, Cambridge. His
course of study there is not known; but when he was transferred to the
Inner Temple, we are told that he read law and history with the
preconceived conviction that the King of England was an absolute
sovereign; and so enthusiastic was he that he converted all he met with
into arguments to support his theory. One most convenient doctrine solved
many difficulties which would otherwise have perplexed him: he maintained
that Parliament had no power to curtail the essential prerogatives of the
crown, and that all acts of Parliament for such a purpose were _ultra
vices_ and void. There is no absurdity in this doctrine, for a legislative
assembly may have only a limited power, like the Congress of the United
States of America; and it was by no means so startling then as now, when
the omnipotence of Parliament has passed into a maxim. He had no respect
whatever for the House of Commons or any of its privileges, being of
opinion that it had been called into existence by the crown only to assist
in raising the revenue, and that, if it refused necessary supplies, the
king, as _Pater Patriæ_, must provide for the defence of the realm in the
same manner as before it had existence. He himself several times refused a
seat in that assembly, which he said was "only fit for a pitiful Puritan
or a pretending patriot;" and he expressed a resolution to get on in his
profession without beginning, as many of his brethren did, by herding with
the seditious, and trying to undermine the powers which for the public
good the crown had immemorially exercised and inalienably possessed. To
enable him to defend these with proper skill and effect, he was constantly
perusing the old records; and, from the Conquest downwards, they were as
familiar to him as the cases in the last number of the periodical reports
are to a modern practitioner. Upon all questions of prerogative law which
could arise he was complete master of all the authorities to be cited for
the crown, and of the answers to be given to all that could be cited
against him.
As he would neither go into Parliament nor make a splash in Westminster
Hall in the "sedition line," his friends were apprehensive that his great
acquirements as a lawyer never would be known; but it happened that, in
the year 1619, he was appointed "reader" for the Inner Temple, and he
delivered a series of lectures, explaining his views on constitutional
subjects, which forever established his reputation.
On the first vacancy which afterwards occurred in the office of solicitor
general, he was appointed to fill it; and Sir Thomas Coventry, the
attorney general, expressed high satisfaction at having him for a
colleague. Very important proceedings soon after followed, upon the
impeachment of Lord Bacon and the punishment of the monopolists; but, as
these were all in Parliament, he made no conspicuous figure during the
remainder of the reign of James I.
Soon after the commencement of the reign of Charles I., he was promoted to
the office of attorney general; and then, upon various important
occasions, he delivered arguments in support of the unlimited power of the
crown to imprison and to impose taxes, which cannot now be read without
admiration of the learning and ingenuity which they display.
The first of these was when Sir Thomas Darnel and his patriotic associates
were brought by _habeas corpus_ before the Court of King's Bench, having
been committed in reality for refusing to contribute to the forced loan,
but upon a warrant by the king and council which did not specify any
offence. I have already mentioned the speeches of their counsel.[54] "To
these pleadings for liberty," says Hallam, "Heath, the attorney general,
replied in a speech of considerable ability, full of those high principles
of prerogative which, trampling as it were on all statute and precedent,
seemed to tell the judges that they were placed there to obey rather than
to determine."
"This commitment," he said, "is not in a legal and ordinary way, but by
the special command of our lord the king, which implies not only the fact
done, but so extraordinarily done, that it is notoriously his majesty's
immediate act, and he wills that it should be so. Shall we make inquiries
whether his commands are lawful? Who shall call in question the justice
of the king's actions? Is he to be called upon to give an account of
them?"
After arguing very confidently on the legal maxim that "the king
Showing first 200,000 characters. Full text: gutenberg.org/ebooks/40076