m% lI'Mll'lly ISAAC FOOT '^: m 1*» r .^-^^-K y^A .'f. ■i.v d/s a "^^ rrr ■iv ;■,"• -'«• , • ' -t.-*f *•• ■■^':. -rf^<- yr . y 'zyj^. THE LIVES OK THE CHIEF JUSTICES OF ENGLAND. FROM THE NORMA X CONQUEST TILL THE DEATH OF LORD TENTERDEN. By JOHN LOED CAMPBELL, LL.D., F.E.S.E., ' / .' AUTHOR OF 'THE LIVES OF THE LORD CHANCELLORS OF ENGLAND.' TRIRB EDITION. IN FOUE VOLUJklES.— Vol. L LONDON: JOHN MURKAY, ALBEMARLE STREET. 187-t. The right of Translation is reserved. I Uniform with the present Work. LIVES OF THE LORD CHANCELLOES, AND Keepers of the Great Seal of England, from the Earliest Times till the Reign of George the Fourth. By John Lord Campbell, LL.D. Fourth Edition. 10 vols. Crown 8vo. 6s. each. " A work of sterling merit — one of very great labour, of richly diversified interest, and, we are satisfied, of lasting value and estimation. We doubt if there be half-a-ddzen living men who could produce a Biographical Series on such a scale, at all likely to command so much applause from the candid among the learned as well as from the curious of the laity." — Quarterly Heview. ii I LONDON : FKINTED Bit WILLIAM CLOWES AND 60>.S, SiAMiOltD STREET AND CHARING CROSS. \ ; U/ SANTA B.Uili^UlA , TO THE V. I nOXOUEABLE DUDLEY CAMPBELL. My dear Dudley, As you have chosen the noble thouo^h arduous profession of the Law, I dedicate to you the Lives OF the Chief Justices, in the hope tliat they may stimulate in your bosom a laudable ambition to excel, and that they may teach you industry, energy, perseverance, and self-denial. Learn that, by the exercise of these virtues, there is no eminence to which you may not aspire, — and, from the examples here set before yon, ever bear in mind that truly enviable reputation is only to be acquired by inde- pendence of character, by political consistency, and by spotless purity both in public and private life. I cannot hope to see you enjoying high profes- sional distinction ; but, when I am gone, you may rescue my name from oblivion, and, if I should be forgotten by all the world besides, you will tenderly remember Your ever affectionate Father, CAMPBELL. PREFACE TO VOLUMES I AND H. OF THE ORIGINAL EDITION. [PfBLISHEP IN 1849.] My original design was to he the biographer of the most eminent Magistrates who have presided in West- minster Hall. This was not completed by writing the Lives of the Chancellors, for many of our most im- portant and interesting legal worthies never held the Great Seal. Some of them — as Lord Cose and Loed Hale — had not the offer of it, from the preference naturally given to mediocrity ; and others — as Lord Holt and Lord Maxsfikld — resolutely refused the offer, because they preferred the functionh of a Common Law Judge. I should not, therefore, have contributed my proposed share of honour to the deceased, or of instruction to the rising generation, without adding the Lives of the Chief Justices. I confess, likewise, that I was eager to trace the history of those who had illustrated the department of English jurisprudence to which, while at the bar, I chiefly addicted myself. I may not be altogether unqualified for the task, as I have been long familiar vi PREFACE. with, their characters, and I am entitled to speak with some little confidence of their decisions. However, I cannot venture to draw the Chief Justices at full length in a consecutive series. The Chancellors, although sometimes insignificant as in- dividuals, were all necessarily mixed up with the political struggles and the historical events of the times in which they flourished ; but Chief Justices occasionally had been quite obscure till they were elevated to the bench, and then, confining themselves to the routine discharge of their official duties, were known only to have decided such questions as " whether beasts of the plough taken in vetito namio may be replevied ?" So many of them as I could not reasonably hope to make entertaining or edifying, I have used the freedom to pass over entirely, or with very slight notice. But the high qualities and splendid career of others in the list have excited in me the warmest admiration. To these I have devoted myself with unabated diligence ; and I hope that the wearers of the " Collar of S S " * may be deemed fit companions for the occupiers of the " Marble Chair," who have been so cordially welcomed by the Public. I have been favoured with a considerable body of new information from the families of the later Chief Justices, — of Lord Chief Justice Holt, Lord Chief Justice Lee, and Lord Chief Justice Eyder. But my special thanks are due to my friend Lord Murray, • This has been from great antiquity who suffered martyrdom under the Em- the decoration of the Chief Justices, peror Dioclesian: "Geminoe vero S S Dugdale says it is derived from the name indicabant Sancti Simplicii nomen." — of Saint Simpucids, a Christian Judge, (Or. Jur. xxxv.) PREFACE. vii Judge of the Supreme C'uurt in Scotland, fur tho valuable materials with which ho has supplied me for the Life of his illustrious kinsman, Lord Mansfield, hitherto so strangely neglected or misrepresented. I had intended to add the Lives of Lord Kenyon, Lord Ellenborough, and Lord Tenterden, — well re- collecting the first when I was a law student, and having practised many years under the two others. But I am afraid of hurting the feelings of surviving relations and friends ; and whatever other biographical sketches I may compose I shall leave to be given to the world when this risk has passed away, and when the author will be beyond the reach of humkn censure. In taking farewell of the Public, I beg permission to return my sincere thanks for the kindness I have experienced both from friends and strangers who have pointed out mistakes and supplied deficiencies in my biographical works, — and earnestly to solicit a con- tinuance of similar favours. Stratheden House, August 10, 1849. PREFACE TO VOLUME III. OF THE OEIGINAL EDITION. [Published in 1858.] I COMPLETE my engagement witli tlie public hj bring- ing down tbis work to the death of Lord Chief Justice Tenterden. A quarter of a century having elapsed since that event, I hope that I may now continue my series of Chief Justices from Lord Mansfield, without being liable to the censure of wantonly wounding the feelings of the relations and friends of those whose names appear in my narrative. I cannot think that the circumstance of my having myself in the mean time become a Chief Justice dis- qualifies me for being the biographer of my pre- decessors, or that it should induce me in any measure to vary the principle on which my " Lives " have been composed. I still consider it my duty to extenuate nothing, being sure that I do not set down aught in malice. By some persons, probably very respectable, though given to hero-worship, I have been blamed for following this course, — even with respect to Judges who for centuries have been reposing in the tomb. I have incurred much obloquy by representing that Lord Chancellor Sir Christopher Hatton, so deservedly emi- PKEFACE. ix nent for his dancing, was " no Lawyer ; " and for saying that Lord Bacon, the greatest philosopher, and one of the finest writers his country ever produced, was justly liable to the charges of taking bribes from suitors on whose causes he was to adjudicate, — of inflicting torture on a poor parson whom he wished to hang as a traitor for writing an unpublished and un- preachcd sermon, — and of labouring to blacken the memory of the young and chivalrous Earl of Essex, from whom he had received such signal favours. But, at all hazards, in relating actions and in drawing characters, I shall still strive to discriminate between what is deserving of praise and of censure, I add, with perfect sincerity, — banc veniara petimusque damusque vicissim. If my own humble career should ever become the subject of biographical criticsm, — with what measure I mete, be it measured to me again. And this I say not in arrogance or self-confidence, — but deeply conscious of deficiencies which may be imputed to me, and of errors into which I have fallen, — yet hoping that the slender merit may be allowed me of having attempted well. I beg leave to call in aid the admirable justification of the discriminating and impartial biographer by my friend Sir Francis Palgrave : — " He is in no ^v\se re- sponsible for the defects of his personages, still less is their vindication obligatory upon him. This conven- tional etiquette of extenuation mars the utility of his- torical biography by concealing the compensations so mercifully granted in love, and the admonitions given by vengeance. Why suj^press the lesson afibrded by the depravity of the ' greatest, brightest, meanest of X PEEFACE. mankind ;' lie whose defilements teach ns that the most transcendent intellectuality is consistent with the deepest turpitude ? The labours of the panegyrists come after all to naught. You are trying to fill a broken cistern. You may cut a hole in the stufi", but you cannot wash out the stain." * Before concluding I must renew the notice by which I have derived many favours both from strangers and from friends, — " I shall be most grateful to all who will point out omissions to be supplied, or mistakes to be corrected." I have only further to express my satisfaction in thinking that a heavy weight is now to be removed from my conscience. So essential did I consider an Index to be to every book, that I proposed to bring a Bill into parliament to deprive an author who publishes a book without an Index of the privilege of copyright ; and, moreover, to subject him, for his offence, to a pecuniary penalty. Yet, from difficulties started by my printers, my own books have hitherto been without an Index. But I am happy to announce that a learned friend at the bar, on whose accuracy I can place entire reliance, has kindly prepared a copious Index, which will be appended to this work, and another for the new stereotyped edition of the Lives of the Chancellors. Stratheden House, April 6th, 1857. • Hist, of Norm, and Kng., b. ii. p. 67. CONTENTS OF THE FIEST VOLUME. CHAPTER I. LIVES OF THE CHIEF JUSTICES FROM THE CONQUEST TO THE REIGN OF EDWARD I. Origin and Functions of the Office of Chief Justiciar, or Chief Justice, of England, Page 1. Odo, the first Chief Justiciar, 4. His Birth, 4. He accompanies William the Conqueror in the Invasion of England, 5. He is appointed Chief Justiciar, 6. Cause tried before him, 7. His Quarrel with the King, 8. He is liberated from Imprisonment, 9. He conspires against William Rufus, 10. He is banished from England, 12. His Death, 12. William Fitz-Osborne Chief Justiciar, 13. William de Warrenne and Richard de Benefacta Chief Justiciars, 14. William de Carilefo Chief Justiciar, 16. Flambard Chief Justiciar, 17. First Sittings in Westminster Hall, 17. Roger, Bishop of Salisbury, Chief Justiciar, 18. Ralph Basset Chief Justiciar, 19. Prince Henry (afterwards Henry II.) Chief Justiciar, 19. Richard de Luci Chief Justiciar, 20. Robert, Earl of Leicester, Chief Justiciar, 21. Ranulfus de Glanville, 22. His Birth, 22. He is Sheriff of Yorkshire, 23. He takes William the Lion, King of Scots, Prisoner, 23. How the News was received by Henry II., 25. Glanville made Chief Justiciar, 27. Glanville as a Law Writer, 29. Preface to Glanville's Book, 30. Mode of Trial by Grand Assize or by Battle, 31. Glanville's Conduct to the Welsh, 34. Glanville's Prohibition in the Suit between Henry II. and the Monks of Canter- bury, 35. A new Crusade, 37. Glanville takes the Cross, 38, Glanville is killed at the Siege of Acre, 40. Hugh Pusar, Bishop of Durham, Chief Justiciar, 40. His licentious youth, 41. His meri- torious middle age, 41. His seven years of Blindness, 42. His Death, 43. William Longchamp, 43. Walter Hubert, Archbishop of Canterbury, Chief Justiciar, 44. Case of Williain-with-the-Long- Beard, 44. Hubert deposed from the Justiciarship, 47. Geoffrey Fitzpeter Chief Justiciar, 47. Trial of the Case of Fauconbridge v. Fauconbridge, 49. Peter de Rupibus, 51. Peter de Rupibus in favour with Henry III., 51. He takes the Cross, 53. He gains a Battle for the Pope, 54. His Death, 54. Hubert de Burgh, 54. xii CONTENTS OF VOL. I. Hubert de Burgh under Richard I., 55. His Character by Shaks- peare, 55. Hubert de Burgh appointed Chief Justiciar for life, 58. Hubert removed fi'oin his office of Chief Justiciar, and takes to Sanctuary, 59. He is confined in the Tower of London, 61. Death of Hubert de Burgh, 62. Stephen de Segrave, 46. Obscure Chief Justiciars, 65. Hugh Bigod Chief Justiciar, 65. Hugh le Despencer Chief Justiciar, 67. Death of Hugh le Despencer, 69. Philip Basset Chief Justiciar, 70. His Death, 71. Whether Simon de Montfort was ever Chief Justiciar ? 71. Henry de Bracton Chief Justiciar, 73. Bracton's Book, " De Legibus et Consuetudinibus Anglise," 74. First Chief Justice who acted merely as a Judge, 75. Lord Chief Justice Bruce, 76. Origin of the Bruces, 76. Scottish Branch of theBruces, 77. Birth of the Chief Justice, 78. He is educated in England, 78. He is a Puisne Judge, 78. He is taken Prisoner in the Battle of Lewes, 78. He is made Chief Justice, 79. He loses the Office on the Death of Henry HI., 79. He returns to Scotland, 80. He is a Com- missioner for negotiating the Marriage of the Maid of Norway with the Son of Edward I., 80; On her Death he claims the Crown of Scotland, 81. He acknowledges Edward L as Lord Paramount of Scotland, 81. Decided against him, 82. His Death, 82. His Descendants, 82. CHAPTER n. THE LIVES OF THE CHIEF JUSTICES FROM THE ACCESSION OF EDWARD I. TO THE APPOINTMENT OF CHIEF JUSTICE TRESILIAN, Judicial Institutions of Edward L, 83. Ralph de Hengham Chief Justice of the Court of King's Bench, 85. His Origin, 85. His Progress in the Law, 85. Law Books composed by him, 86. He is appointed Guardian of the Kingdom, 88. He is charged with Bribery, 88. Convictions of the Judges, 89. De Hengham is fined 7000 Marks, 89. Opinions respecting him in after-times, 90. He is restored to public Employment, 91. His Death, 91. De Weyland Chief Justice of the Common Pleas, 91. His Conduct, 91. He absconds in Disgrace, 91. His Punishment and Infamy in aftei'- times, 92. De Thornton Chief Justice of King's Bench, 93. Roger le Brabacjon, 93. He is employed by Edward I. in the Dispute about the Crown of Scotland, 94. His Address to the Scottish Parliament, 95. He assists in subjecting Scotland to English Jurisdiction, 96. He is made Chief Justice of the King's Bench, 97. His Speech at the Opening of the English Parliament, 98. His Death, 99. Sir William Howard, qu. whether a Chief Justice ? 99. Henry le Scrope, 101. Summoned to the House of Lords, 101. Chief Justice of the King's Bench, 102. Henry de Staunton Chief Justice of the King's Bench, 102. Ballad on Chief Justice Staunton, 104. Sir Robert Parnyng, 105. Sir William de Thorpe, 105. His professional Progress, 105. He is made Chief Justice of the Court of King's Bench, 106. His Addresses to the two Houses of Parliament, 106. He is charged with Bribery, 107. He is found guilty : qu. whether CONTENTS OF VOL. I. xiii ho was sentenced to death? 107. Sir William Shareshall Chief Justice of the King's Bench, 109. His Addresses to both Houses of Parliament, 109. Sir Henry Green, 111. Sir John Knyvet, 111. Sir John de Cavendish, 111. His Origin. 111. He is made Chief Justice of the King's Bench, 111. He is put to death iu Wat Tyler's Kcbelliou, 112. His Descendants, 113. CHAPTER HI. CHIEF JUSTICES TILL THE DEATH OF SIR WILLIAM GASCOIGKE. Sir Robert Tresilian, 114. He is made a Puisne Judge of the Court of King's Bench, 114. Chief Justice of the King's Bench, 11.5. His Plan to enable Richard H. to triumph over the Barons, 116. The Opinion of the Judges on the Privileges of J'arliament, 116. Measures prompted by Tresilian against the Barons, 119. The Barons gain the Ascendency, 119. Tresilian prosecuted for High Treason, 120. He absconds, 121. Proceedings in Parliament, 121. Tresilian attainted, 123. He comes to Westminster in Disguise, 123. He is discovered, apprehended, and executed, 124. His Cha- racter, 127. Sir Robert Belknai)pe, 128. His Family, 128. He is made Chief Justice of the Common Pleas, 129. The Manner in which he was coerced into the giving of an illegal Opinion, 129. He is arrested and convicted of High Treason, 130. Judges attainted of High Treason, 131. The Sentence commuted for Transportation to Ireland, 132. He is allowed to return to England, 133. His Death, 134. Sir William Thirnynge, 134. Chief Justice of the Common Pleas, 135. Justification of the part he took in the Deposition of Richard II., 135. He is appointed to carry to Richard II. the Re- nunciation of the Allegiance of the Nation, 138. The account of the Manner in which he executed this Commission, 139. He acts as Chief Justice under Henry I\'., 141. His Death, 142. Sir William Gascoigne, 143. His Origin and E 111 •!! 11 -11 Chief Jus- omcer would have ill accorded with tlic tidar, or ,• /. » 1 CI J. 1 Chief Justice, notions 01 our Anglo-baxon ancestors, who of England, had a great antipathy to centralisation, and prided themselves upon enjoying the rights and the advantages of self-government. The shires being par- celled into hundreds, and other subdivisions, each of these had a court, in which suits, both civil and criminal, might be commenced. A more extensive * Of the two names, "Justice" and "Justiciar," we have this account by Spelman: "Jiistitia al. Jiistitiariits. Prior vox In juris iiostrl forniulis, solura- modb videtur usitata, usque ad tetatem Henrici 3, alterd jam se efferente, h.-pc paulatim disparult: sed inde hodie in vernaculo et jniis annallbus Gallico- VOL. I. Xormanlcis 'a'vel '»« J'w/ice'dicimus, non ' Justicer.'" In Scotland, where this office was introduced, along with almost every other which existed in England under the Norman kings, the word Jus- titiarius prevailed, and hence we now have the "Court of JrsTiciARr." Sep " Lives of the Chancellors," vol. i. B 2 WILLIAM THE CONQUEROR. Chap. I. jurisdiction was exercised by the County Court, a tribunal of high dignity, over which the Bishop, and the Earl, or Alderman, presided jointly. Cases of im- portance and difficulty were occasionally brought by appeal before the Witenagemote, and here they were disposed of by the voice of the majority of those who constituted this assembly. We do find, in the Anglo- Saxon records, a notice of " Totius Anglise Alder- mannus," but such a creation seems to have taken place only on rare emergencies, and we have no cer- tain account of the duties intrusted to the person so designated.* In Normandy the interference of the supreme government was much more active than in England, and there existed an officer called Chief Justiciar, who superintended the administration of justice over the whole dukedom, and on whom, accord- ing to the manners of the age, both military and civil powers of great magnitude were conferred.f Before William had entirely completed his subjuga- tion of England, eager to introduce into it the laws and institutions of his own country, so favourable to princely prerogative, — while he separated the civil and ecclesiastical jurisdiction, and confined the County Court (from which the Bishop was banished) to the cognizance of petty suits, — preparatory to the establishment of the feudal system in its utmost rigour, he constituted the office of Chief Jdsticiar. His plan was to have a grand central tribunal for the whole realm, which should not * Dugd. Or. Jur., ch. vii. Mad. Ex., sions, are the organs of the petty confe- ch. i. Spol. Gloss. "Justitia." Lord derated republics into which England is Coke's 2nd Inst., ch. vii. parcelled out, — in France, whether the ■f- It is curious to observe that, not- form of government be nominally mo- withstanding the sweeping change of narchical or republican, no one can alter laws and institutions introduced at the the direction of a road, build a bridge, or Conquest, the characteristic difference open a mine, without the authority of between Frenchmen and Englishmen, in the "Ministre des Fonts et Chamsees." the management of local affairs, still In Ireland, there being much more Celtic exists after the lapse of so many cen- than Anglo-Saxon blood, no self-reliance turies; and that while with us parish is felt, and a disposition prevails to vestries, town councils, and county ses- throw every thing upon the government. Chap. I. OFFICE OF CHIEF JUSTICIAR. 3 only bo a court of appeal, but in which all causes of importance sshould originate and be finally decided. This was afterwards called CuuiA Kegis, and sometimes Aula Kkgis, because it assembled in the hall of the King's palace. The great officers of state, the Con- stable, the Marcschal, the Seneschal, the Chamberlain, and the Treasurer, were the judges, and over them presided the Grand Justiciar. " Next to the King himself, he was chief in power and authority, and when the King was beyond seas (which frequently happened) he governed the realm like a vice roy." * He was at all times the guardian of the piiblic peace as Coroner- General,! and he likewise had a control over the finances of the kingdom. J In rank he had precedence of all the nobility, and his power was greater than that of all other magistrates. § The administration of jtistice continued nearly on the same footing for eight reigns, extending over rather more than two centuries. Although, during the whole of this period, the Aula Regis was jireserved, yet, for convenience, causes, according to their dif- ferent natures, were gradually assigned to different committees of it, — to which may be traced the Court of King's Bench, the Court of Common Pleas, the Court of Exchequer, and the Court of Chancery. A distinct tribunal for civil actions was rendered necessary, and was fixed at Westminster by the enactment of Magna Charta — " Communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco ;" but the • Maild. Excli. xi., where it is said, J It is supposed to be a remnant of " he was wont to be slj-ledJusticia Kegis, this power, that, upon the sudden death Justiciarius Rfgis, and absolutely Jus- or resignation of the Chancellor of the ticia or Justic.arius; afterwards he was Exchequer, the Chief Justice of the sometimes styled Justiciariug Hegis King's Bench does the formal duties of Anglice, probably to distinguish him from the office till a successor is appointed, the King's Justiciar of Ireland, Nor- } " Diguitate onmes regni procere?, mandy," &c. potentate omnes su]icrabat luagistratus." t The Chief Justice of the King's — Sptl. Gloss, p. 331. Bench is still Chief Coroner of England. B 2 4 WILLIAM THE CONQUEROK. Chap. I. suitors in other causes "were long after obliged to resort alternately" to York, Winchester, Gloucester, and other towns, in which the King sojourned at different seasons of the year.* At last a great legislator modelled our judicial institutions almost exactly in the fashion in which, after a lapse of six centuries, they present them- selves to us at the present day, showing a fixity un- exampled in the history of any other nation. The Chief Justiciar was then considerably' lowered in rank and power, but the identity of the office is to be distinctly traced, and therefore it will be proper that I should introduce to the reader some of the individuals who filled it in its greatest splendour. The first Chief Justiciar of England was Odo. The ^, , ^ beautiful Arlotta, the tanner's daughter of Odo the first . ' . * Chief Jus- Falaise, who, standing at her father's door, had captivated Eobert, Duke of Normandy, — after living with him as his mistress, bringing him a son, the founder of the royal line of England, lament- ing his departure for the Holy Land, and weeping for his death, — was married to Herluin, a Norman knight, TT- ^- .,. by whom she had three children. Odo, the His birth. 1 p 1 • . . , . , second of these,! possessing bright parts and an athletic frame, was bred both to letters and to arms, and, while he took holy orders, he still distinguished himself in all knightly achievements. He was a special favourite with his brother the young Duke, who made him at an early age Bishop of Bayeux. Nevertheless he still continued to assist in the military enterprises by which William extended and consolidated his con- tinental dominions, and attracted warriors from all the surrounding states to flock to his standard. * The Court of King's Bench is still f The eldest was Robert, Earl of Mor- supposed to be ambulatory, and by ori- taigne ; and the youngest a daughter, ginal writs the King orders the defen- Countess of Albemarle. Will. Gem. vii. dant to appear on a day named, " where- 3 j viii. 37. Pict. 153. 211. Orderie. 255. soever we shall then be In England." A.D. 1066. ODO. CHIEF JUSTICIAR. 5 When, on tho death of Edward tlie Confessor, tho Duke of Normandy chiimed the crown of England, and pre])aretl to wrest it from the *°' "'*®' , ^ He accom- perjurcd Ilarukl, Odo preached the cnisade panira Wii- iu tho pulpit, and zealously excrtt-d himself o.nqueror in in levying and training tho troops. From |,f England" Bayeux he carried a chosen band of men-at- arms in ten ships, with which ho joined the main fleet at a short distance fiom St. Valery. lie was one of the first to jump ashore at Pevensey, and he continued to ply his double trade of a priest and a soldier. At day- break of the ever-memorable loth of October, 1066, he celebrated mass in the Norman camp, wearing a coat of mail under his rochet. He then mounted a gallant white charger, carried a marshal's baton in his hand, and drew up the cavalry, with the command of which he was intrusted. In the fight he performed prodigies of valour, and he mainly contributed to the victory which had such an influence on the destinies of England and of France. The famous Bayeux tapestry represents him on horseback, and in complete armoiir, but without any sword, and bearing a staff only in his hand, with the superscription "Hie Odo Epis. baculum tenens confortat," as if he had merely encouraged the soldiers. Although there might be a decency in mitigating his military prowess in the eyes of those whose souls he had in cure, there is no doubt that on this day he acted the part of a skilful cavalry officer and of a valiant trooper. When the ceremony of the coronation was to take place in Westminster Abbey, ho wished to conse- crate the new monarch, and to put the diadem on his head ; but, to soften the mortification of the English, and to favour tho delusion that the kingdom was to be held under the will of the Confessor and b}' the volun- tary choice of tho people, Aldred tho Archbishop of 6 WILLIAM THE CONQUEEOR. Chap. L York was preferred, and he asked the assembled multi- tude " if they would have AVilliam for their King ? " Odo, as a reward for his services, received a grant of large possessions in Kent, and was created Earl of that county. In contemplation of the establishment of the Aula Eegis, by the agency of which the Norman juris- prudence was to be introduced into England, and Norman domination perpetuated there, Odo was like- „ . wise appointed Grand Justiciar. Like many He IS ap- ,..„,. pointed Chief ecclcsiastics of that time, he had attended to the Eoman civil law and the learning of feuds, as well as to the canon law ; and it was expected that he would be useful not only in judicial proceedings, but in the meetings of the national assembly, by which the Conqueror thought of giving an appearance of legality to his rule. This arrangement was highly successful ; and so quiet did all things appear to be in England, that in the following year William returned to Normandy to show his new grandeur to his country- men, and remained there eight months, taking with him Edgar Atheling, the legitimate heir to the throne, and many of the principal English nobility. Odo was left behind as Justiciar ; and William Fitz-Osborne, a redoubted knight, related to the ducal family, was asso- ciated with him in the regency. The Norman chroniclers pretend that Odo on this occasion displayed prudence and humanity, but had to encounter fickleness and ingratitude ; while the Saxon chroniclers assert that he oppressed and insulted the natives so as to drive them into rebellion. The result was a general insur- rection all over England, and William was obliged to return and to reconquer the kingdom. Odo was again most useful to him both in council and in the field, and was confirmed in his office of Justiciar, which he exercised for some years with undivided sway. Henry A.D. 1068-82. ODO, CHIEF JUSTICIAi;. 7 of Huntingdon, after giving an account of AVilliam having put down all resistance, and of the splendour of his court, enumerates among the grandees present, " Odo Episcojnis Baiuceims, Junticiarius el Frincejys totius Anglke" * I find the report of only one cause tried Ix'fore him, GiinduJjih, Bishop of liochester v. Pechot, Sheriff of CaMhriihjcshire. The defendant had seised ^is^!"^^ the land oi Fracenham in right of the King, ^f^^^'im and it was claimed by the plaintiff in right of his Church. The King ordered the trial to take place Lefore Odo, the Grand Justiciar. lie, going to the spot, summoned a folkmote, or general meeting of the freeholders, who, after an impartial summing up, found a verdict for the Crown.| There was another trial of high interest soon after, at which Odo. the Justiciar, could not well preside, as he was the party sued, Lanfranc, an Italian ecclesiastic, having succeeded Stigand, the Saxon, as primate, com- plained that the Earl of Kent unlawfully kept pos- session of large territories, in that county, which of right belonged to the See of Canterbury. Geoffrey, Bishop of Coutance, was specially appointed by the King to act as Justiciar on this occasion. The trial took place in a temporary court erected on Penenden Heath, and lasted three days ; at the end of which time judgment was given for the Archbishop against the Earl.l " L. vi. p. 371. The Saxon Chronicle pit, nt omnps illius comitatus homines says: " Fult (Odo) admoilum potens congregartnlur et eoruni judlcio cujus Kplscopns In Normannia et Rtgi om- terra deberet rcctliis esse probaretur," nlum maxims fidelis. Habiiit aiitem kc. — Ex Emulji lliit. aptid Angl. Sax. comitalum in Anplia, et quuni Rex erat t. i. p. 339. in Normannia fult ille primus in hac J The report of the case, one of the terra." — Chron. Sax. p. 190. n. 20, 25. earliest to be found in our books, thus t Hanc enitn Vicecomes Regis esse bfgius: "De placito apud Pinendenam, terram diabat ; sed Episcopus eandem Inter Lanlrancum Arcliiepifcopum, et S. Andrese potius tsseafBnnabat. Quare Odonem Baioccnsem Kpiscopum. Tern- ante Kegem venerunt. Rex vero praxe- pore JIagni Regis Wilielmi qui Angli- 8 WILLIAM THE CONQUEEOE. Chap. I. Odo, however, was soon indemnified from the spoils of the Anglo-Saxon nobles; and being allowed, not- withstanding heavy complaints against him, to retain his office of Chief Justiciar, he amassed immense riches. By turns he officiated as a prelate, celebrating mass in the King's chapel, — he sat as supreme judge in the Aula Eegis, — and he commanded the King's troops in putting down insurrections.* Although scrupulous when presiding on the bench, it is said that when intrusted with a military command he thought it un- necessary to discriminate between guilt and innocence ; he executed without investigation all natives who fell into his hands, and he ravaged the whole country.| After he had held his office of Chief Justiciar nearly A.D. 10S2. fifteen years, he quarrelled with the King, by with^he'^^^ entering into a mad enterprise which might ^^"S- have materially weakened the Norman power in England. An astrologer had foretold that he should reach the papacy and become sovereign of all Italy. The fortune of Guiscard, in Sicily, had excited the most extravagant expectations among his countrymen, and they openly boasted that the whole of Europe would soon be under Norman rule. Odo expected to gain his object, partly by corruption, and partly by force of arms. Gregory, the reigning Pope, was still in the vigour of manhood, but somehow a vacancy was to be occasioned, and was to be filled up by the Bishop of cum regnum armis conquisivit, &c. possession of many manors belonging to Huicplacito interfuorunt GorslridusCon- the archbisliopric. See the proceedings stantiensis, qui in loco Kegia fuit et at length in Selden's Spicilegium, p. 197. Justiciam illam tenuit ; Lanfrancus * " In seculari ejus funclione, non Epitcopus qui placitavit; Comes Cantiaa, solum rem exercuit judiciariara : sed &c., et ulii multi Barones Regis etipsius bellia utique assuefactus exercitum Ran- Archiepiscopi, et alii aliorum comita- dulphi Cumitis Eslangliae, suoruniqiie tuum homines etiam cum istototo coml- confaideratorum, profligavlt : etin uliione tatu, niulii et magnas auctoritaiis viri necis Walter! Dunelmensis Episcopi, FrancigenjB scilicet et Angli," kc.—Ex Northumbriam late populatus est." — Ernulfi HUt. apud Angl. Sax., t. 1. Spel. Gloss, ■p.Sil. p. 234. It was clearly proved that, while f Sim. 47. Malm. 62. Chron. Sax. SliganJ was in disgrace, Odo had taken 181. Flor. 639, A.D. 1087. ODO, CHIEF JUSTICIAR. 9 Bayeiix. With this view he bought a statolj' palace at Eome ; he transmitted iiunienso sums of money to Italy; and ho induced Ilu<;h, Earl of Chester, and a number of other Muruiau nobles settled in England, to whom ho promised Italian principalities, to join him, accompanied by a considerable body of military retainers, and to embark with him for a port in the Mediterranean. This enterprise had been carefully concealed from the knowledge of the King. Hut "William, hearing of it before the fleet sailed, highly disapproved of it, dreading that, after such a loss of treasure and soldiers, the mutinous Anglo-Saxons mio-ht shake off his yoke. He therefore seized the money and stores prepared for the enterprise, and gave orders that Odo should be arrested. The oflicers of justice, out of respect for the immunities which ecclesiastics now assumed, scrupled to execute the command. William thereujion arrested his brother with his own hands. Odo insisted that he was a prelate, and therefore exempt from all temporal jurisdiction ; whereupon William exclaimed, " God forbid that I should touch the Bishop of Bayeux, but I make the Earl of Kent my prisoner." The Earl-Bishop was imme- diately sent over to Normandy, and kept in close con- finement there for five years among many other state prisoners.* At last, tho Conqueror being on his death-bed, it was suggested to him by his ghostly advisers, ^.^ ^ ^^^. that if he hoped for mercy from God he He is iiiw- ought to show mercy to man, and to set at imprison- liberty the noble captives whom he had long ™^° ' immured in the dunoeons of Eouen. After trvine: to justify their detention, partly on the ground of their treasons, partly on the plea of necessity, he assented to the request, but long insisted on excepting his brother • Chron. Sas. 184. Flor. 641. Halm. 63. H. Hunt, 731. Angl. Sax. i. 258. 10 ODO, CHIEF JUSTICIAR. Chap. I. Odo, a man, lie observed, wliose turbulence would be the ruin both of England and Normandy. The friends of the prelate, by repeated solicitations, extorted from the reluctant monarch an order for his immediate en- largement. Odo, at the moment when he recovered his liberty, hearing that the Conqueror had expired, and that his naked corpse lay neglected on the floor of a chamber of the deserted palace, instead of seeing to the decent interment of his brother and benefactor, proceeded with all speed to England to make advantage of the election to the vacant throne. On condition of being restored to all his vast estates in Kent, and to his office of Chief Justiciar, he agreed to support the claim of Eufus, and assisted at the coronation of the new sove- reign.* Accordingly, he presided in the sittings of the Aula Eegis held at the Feast of Christmas, 1087, and the Eeast of Easter, 1088. But his unreasonable demands of further aggrandisement being refused, and his re- sentment being inflamed against Lanfranc the primate, to whom he imputed his sufferings in the end of the last reign, as well as his present disappointment, he entered into a conspiracy with Geofi'rey de agafnst^^^'^^* Coutancc, Eogcr Montgomery, Hugh Bigod, ^ufus"^ Hugh de Grantmesnil, and other Norman barons, to invite over Robert Curthose, his elder nephew, and to make him sovereign of England as well as of Normandy, on the specious pretences that the right of primogeniture should be respected, and that those who held estates both in Normandy and in England could not be safe unless both countries were ruled by the same sovereign. The confederates imme- diately took the field, expecting Robert to join them with a large army. Odo intrusted his strong castle of Rochester to the care of Eustace, Count of Boulogne, * H. Hunt, lib. vii. p. 212. A. I.. 1087. ODO, CHIEF JUSTICIAR. 11 with a gari'ison of fivo hundred knights, and himself retired to Pevensey, to await the arrival of his nei)hew and to proclaim him king. I>ut Kufus, having detached a body of troops to lay sicgo to L'ochcstcr, marched in person in pursuit of the Earl-Bishop, shut him up within the walls of a castle on the sea-shore, and, after a blockade of seven weeks, compelled him to surrender, — Robert, with his usual giddiness, having occupied him- self with frivoLnis amusements, instead of hastening across the Channel to claim his birthright. By the terms of capitulation, life and liberty were granted to Odo, on condition that he should swear to deliver wp the Castle of Rochester, and to abjure the realm of England for ever. His resources were not yet quite exhausted. Being conducted by a small escort to the fortress, he was ad- mitted into the presence of Eustace, and ordered him to surrender it, but made him a private signal that he wished to be disobeyed. The shrewd governor up- braided him as a traitor to the cause, and made prisoners both him and his giiard. Rufus was excited to the highest indignation by the success of this artifice, and pressed the siege with the utmost rigour, being sup- ported by a band of natives, who on this occasion rallied round him to be revenged for the oppressions they had suflfered from the Grand Justiciar. However, the place was as obstinately defended by Odo, till the ravages of a pestilential disease compelled him to pro- pose a surrender on honourable conditions. AVith con- siderable difficulty he obtained a promise that the lives of the garrison should be spared ; but the demand that they should all depart with the honours of war, and that, as he himself withdrew, the besiegers, out of respect to his sacred character, should abstain from every demonstration of triumph, was contemptuoiisly rejected. Accordingly, his men were all obliged to lay 12 ODO, CHIEF JUSTICIAR. Chap. I. down their arms, and when he himself appeared, although clad only in canonicals, the trumpets being ordered to sound a flourish, as he passed through the ranks the English shouted " halter and gallows" in his „ . , ears. Knowing that, by the immunities of He IS ba- . . nished from cliurchmen, his life was safe, he muttered threats and defiance ; but he was immediately put on board a ship for Normandy, with a solemn admonition that, if he ever again set foot on English ground, nothing should save him from an ignominious death.* It was charitably hoped that, renouncing the pomps of this world, he would pass the remainder of his days in superintending his diocese, which he had long grievously neglected, and in seeking to make atonement by pertance for the irregularities of his civil and his mili- tary career; but, after spending a short time atBayeux, he could endure a life of tranquillity no longer, and, as he was debarred from revisiting England, he A.D.lotfe!' wandered about from country to country on the Continent in quest of adventures, and at last died in a state of great destitution at Palermo. One original historian, in drawing his character, says (I am afraid with too much justice), that " instead of attending to the duties of his station he made riches and power the principal objects of his pursuit ;"'\ while another, who had probably shared in his bounty, declares that " he was a prelate of such rare and noble qualities, * Chron, Sax. 195. Order. Vit. 668. he was celebrated for bis munificence to Sim. 215. In Ualstead's " Kent" there the see of Bayeux, which he filled about is a drawing of his seal, on one side of tifty years, rebuilding from the ground which he appears as an Earl, mounted the church of Our Lady of Bayeux, fur- on his war horse, clad in armour, and nishing it with costly vestments and holding a sword in his right hand ; but ornaments of gold and silver, and en- on the reverse he appears in the character dowing a chantry for twelve monks to of a Bishop, dressed in his pontifical pray for his soul, "bestowing his wealth, habit and pronouncing the benediction, however indirectly gotten, on the church In the former capacity he left a natural and poor." son, who afterwards gained great renown f Order. Vit. 255. in the court of Henry I. In the latter A.n. 1066. WILLIAM FITZ-OSBORNK. 13 that the Eno-lish, barbarians as they were, could not hut love and fear him." * There were several other Chief Justiciars in the reign of William the Conqueror, but none of their pro- ceedings connected with the administration of the law are handed down to us, excepting the famous trial on Penenden Heath between Odo and Lanfranc ; — and a very short notice of them will be sufficient. William Fitz-Osborne, for a short time associated in the office, was related to the Dukes of Nor- ^Muiam mandy both by father and mother, and he ^'l^'-fJ?"^""^ •J ' ^ ^ rt Clllff Jus- had been brought up with the (^onqueuor ticiar. from infancy. Under his advice William acted in all the negotiations with Edward ihe Confessor and Harold respecting the succession to the crown of England, and preparations were at last made to seize it by force of arms. To the praise of consummate wisdom in the cabinet he added that of unsurpassed courage in the field, and he acted a conspicuous part in the decisive battle of Hastings, in.somuch that he was proclaimed to be " the pride of the Normans and the scourge of the English." f The earldom of Hereford was conferred upon him, with large possessions in the marches of Wales. During the time when he was Chief Justiciar, " Edric the Wild," whose possessions lay in that country, in conjunction with several other Anglo- Saxon Thanes, and backed by the Princes of Wales, set his authority at defiance, and continued, after various repulses, to make head against him till AVilliam re- turned from Normandy, and effectually put do\\Ti the insurrections which had taken place, in his absence, in this and other parts of the kingdom. Notwithstanding their general good understanding, difierences would * Pict. 153. aliis omnibus, ad invasionem Anglisc + Pict. 151. Order. Vit.'203. Spelman fxcitavit, funostoque iUo Hastingense Mj-s : " Acerrimus autem Anglorum lios- prn-lio tertiam aciem duxit" — Gloss. lis fuit, et qui Normanuiie Doctm prae p. 336. 14 WILLIAM THE CONQUEROR. Chap. I. occasionally arise between the Conqueror and this favoured captain. It is related that, on one occasion, Fitz-Osborne, being steward of the household, or " Dapifer," had set upon the royal table the flesh of a crane scarcely half roasted, when the King, who in old age was much of a gourmand, and particularly prized crane when well cooked, in his anger aimed a blow at him ; this was warded off by Eudo, another favourite, but it so enraged Fitz-Osborne that he in- stantly threw up his ofSce. He was succeeded by Eudo, who is thenceforth designated by chroniclers as " Eudo Dapifer." Fitz-Osborne, having been restored to the favour of his sovereign, and created Lord of the Isle of Wight, died in the year 1072.* Geoffrey, Bishop of Coutance, appointed Chief Jus- ticiar for a special occasion, I was one of the fighting prelates who accompanied William, with the sanction of the Pope, in his memorable expedition ; but having given judgment against Odo, he incurred the dis- pleasure of this powerful favourite, and his prefer- ment in England was stopped. On Odo's disgrace, William de Warrenne and Eichard de Benefacta were jointly appointed to the wirrenne office of Chief Justiciar. The former, a de'teieforta countryman and companion of the Conqueror, Chief Jus- is chiefly noticed as beins; the ancestor of the ticiars. . . celebrated William de Warrenne who gained such renown by his actions in the reigns of Henry III. and Edward I. ; and is still more celebrated for his answer, on being required to show his title to his estate, — when, drawing his sword, he exclaimed, " Wil- liam the Bastard did not conquer the kingdom for himself alone ; my ancestor was a joint adventurer in * Order. Vit. 218. Mad. Ex. 1. 31-40. tenuit in illo notabiliplacitoapudPlnen- Will. Malm. 396-431. dene, inter Lanfrancum Arohiepis- f " Goisfridua Constanciensis Episco- copum Cantuar. et Odonem Comitem pus, in loco Regis fuit, et Justiciam Cantli." — Textiis Ruff. t. 50. A.D. 1072. "WILLI A5I DE CARILEFO. 15 the enterprise ; what he gained by the sword, by the sword I will maintain." * How Richard do Benefaeta came by this surname lias puzzled antiquaries. Ho was originally called Kichard Fitz-Gislebert, or Fitz-Gilbert, being the son of Gisle- bert, or Gilbert, Count of Brion in Normandy. He gained distinction at Hastings, and as a reward for his bravery ho received 8 lordships in Surrey, 35 in Essex, 3 in Cambridgeshire, 2 in Kent, 1 in Middlesex, 1 in Wiltshire, and 95 in Suflfolk, besides all the burgages in the town of IpsAvich. He took an active part in the great survey recorded in Domesday ; in which, as may be supposed, his name very frequently appears. His descendants enjoyed much distinction during the reigns of all the Norman kings. These two Grand Justiciars, during their joint ad- ministration, invented a new punishment, to be inflicted on disturbers of the puljlic peace. Having encountered and defeated a powerful band of insurgents at a place called Fagadune, they cut off the right foot of all they • The first William de Warrennedicd the monks at Ely, for which being often 1089, and was buried in the chapter- a'lmonishcd by the abbot, and not house of a monastery he had founded at making restitution, he died miserably; Lewes for monks of the Cluniac order, and, though his death happened very far The following epitaph was engraved on from the Isle of Ely, the same night he his tomb : — died, the abbot, lying quietly in his bed , ,. and meditating on heavenly things, " Hie Guilelmus Comes, locus est laudis ^^^^^^ ^^^ ^^j ^^ ^j^^ j^^,_ ,.„ ^^^ carriage tibi fomes, ^^.^^, ^^ ^^^^ devi\, cry out loudlv, and Hujus fiindtttor.et largussedisamator. ^..^^ ^ ^^^^.^^ j^,,j ^i^^.^^ ^.^-^^^ . j^^^ Iste tuum funus decorat, placuit quia ^^^,^ ^^^^^ ^^ ^^^ , ^^^ y^^^^ ^^^^^^ „^ '^"^""* . me 1' And, moreover, that the next day Pauperibus Christi, quod prompta ^^^ ^^^^^ acquainted all the monks in mente didisti chapter therewith ; and likewise that, lUe tuos cineres servat Pancratius ^^^^ ^^^^ ^^^^ ^^^^ jl^^^^ ^^^^ ^ ^^^ "'^^'^^' scnger to them from the wife of this Earl, Sanctorum castris. qui te sociabit in ^..^^ ^^^ hundred shillings for the good ''^*"^- , .„ of his soul, who told them that he Optime Pancrati, fer opem te. glonfi- ^^_^^^ ^^^ ^^^ ^^^^ j,,^ ^^^^^ ^^^^^ ^^^^ '^""' ,. .... outcry; but that neither the abbot nor Daque poli sedem, talem tibi qui dedit ^^^ ^^ ^^^ ^^^^^ ^^.^^,^ ^^^^.^.^ .^ ^^^ ***®''^-' thinking It safe for them to take the It is reported that "this Earl William money of a damned person."— See Dug- did violently detain certain lands fio^ dale's "Baronage," pp. 73, 74. 16 EEIGN OF WILLIAM EUFUS. Chap. I. took alive, including the ringleaders, the Earls of Nor- folk and Hereford. It seems then to have been con- sidered that in times of rebellion the Judges were to exercise martial law, or to disregard all law, according to their own arbitrary will. There is only one other Chief Justiciar recorded as having served under the Conqueror ; William William de de Carilefo, or Karile^ho, who was a pious Carilefo Chief o ' x Justiciar. pricst, and fought only with spiritual weapons. He was Abbot of St. Vincent's in Normandy, and without having been in the host which invaded England, or ever having put on a hauberk Tstrange to say !), from the mere I'eputation of his sanctity he was nominated to the bishopric of Durham. He was con- secrated at Gloucester by the Archbishop of Canterbury, in the presence of the King and the assembled prelates of the realm. Simeon, having described this ceremony, adds, " Erat acerrimus ingenio, subtilis consilio, magnse eloquentiee simul et sapientiag." He is much celebrated for the purity and impartiality with which he admi- nistered justice when placed at the head of the Aula. Eegia. ; as well as the vigour which he displayed in asserting the privileges of his see against the King. In the succeeding reign he was Chief Jus- A D 10S7 ticiar a second time after tlie fall of Odo; but soon quarrelled with Eufus, who was a notoi-ious spoliator of Church property, and he was obliged to fly into Normandy, the temporalities of his see being seised into the King's hands. However, when Eufus made a northern progress to receive the homage of Malcolm, King of Scotland, and perceived the venera- tion with which the exiled bishop was regarded, he had the generosity to recall him to his see, and made resti- tution of the lands of which he had deprived it. The prelate employed the araple revenues thus restored to him in the munificent work of erecting a new and A.D. 1087. RAT.PH FLAMBAKD, CHIEF JUSTICIAK. 17 Hplemliil catliodral at Durham, on a plan which he had Tjionglit with him fiuiu France. IIu also i:»re.scnted to the Church a large store of buoks and ornaments col- lected by him during his banishment. Again falling under the King's displeasure, and being obliged to obey a mandate to travel towards Windsor under the pres- sure of severe illness, he expired soon after his arrival there, on the morrow of the Epiphany, in the year 1005. Such was his modesty, that he declined in his last moments the honour of bnrial in his cathedral near the holy relics of St. Ciithbort ; and he was, by his own desire, interred on the north side of the chapter-house. But he himself was regarded as a Saint ; miracles were worked at his shrine ; and this continued the cherished place of sepulture of succeeding bishops. The monkish historians of Durham, in addition to encomiums on his piet}-, his liberality, his zeal for the rights of the Church, his genius, and his learning, praise him loudly for the simplicity of his manners and the temperance of his life.* liufus's only other Chief Justiciar, in all respects a contrast to his predecessor, was Ealph Flam- ^1^^,,,^,^. bard, the ''devouring Torch," who for some chief jus- ticitU* time held the Great Seal, and whom I have consequcntl}' described in my Lives of the Chancelloi;s. To this work I must refer such of my readers as v/onld become acquainted with his revolting atrocities and his edifying penitence. I may add, that while he was Chief Justiciar the sittings of the Curia Eegis were first held in Westminster Hall. The Fir.=t sittings Saxon Kings had founded a monastery on a sterfiaii. piece of ground then surrounded by the Thames, and called " Thorney Island." In relation to its direction from the City of London, the metropolis of the kingdom, the new foundation received the name • Godwin de Pr£es. "31. Roger de Wcndovcr, xi. 32. Will. Jlilm. 486. VOL. I. C 18 KEIGN OF HENRY I. Chap. I. of " Westminster ;" and liere a royal palace was erected, which was enlarged and beautified by Edward the Con- fessor, bnt was still mean, compared with the stately structures erected by the Normans at Kouen. The Conqueror, although he observed that it contained no hall in which the great council of the nation could assemble, or in which justice could conveniently bo administered, had been too much occupied with graver matters to supply the defect ; but William Eufus built, adjoining to the palace at Westminster, the magnificent hall which is looked upon with such veneration by English lawyers, and which is the scene of so many memorable events in English history. This being com- pleted at Whitsuntide 1099, the Chief Justiciar, Elam- bard, sat hero in the following Trinity Term ; and the superior courts of justice have been held in it for 750 years. The concentration thus established has perhaps contributed to the ascendancy vfhich English law and English lawyers have so long enjoyed.* It might have been expected that Henry I., who at the commencement of his reign wished to make himself popular by restoring Saxon institutions, would have abolished or reformed the ofiice of Chief Justiciar, of which such heavy com- plaints had been made by the natives ; but he allowed it to remain in full vigour, a,nd he soon appointed to it the famous Eoger, Bishop of Salisbury, who rendered it more odious than it had ever been before. Bishop of The extraordinary vicissitudes of his career, aiief Jus- from his reading mass as a village curate m ticiar. Normandy till he was obliged to surrender his castle of Devizes to King Stephen, and died miserably, I have already recorded. f * Independently of the preUifje at- perse themselves in separate bodies over taching us to AVestminster Hiill, I would different regions of the metropolis, caution my brethren against the desire, f Lives of Chancellors, vol. i. oh. xi. from some partial convenience, to dis- A.D. 1087. TRINCE HENRY, CHIEF JUSTICIAR. 19 The only other Chief Justiciar of mucli note during this reign was Ivalph Uasset, sun of one of the companions of the Concnieror and the founder Ralph Basact uf a family in Lngland of great distinctiou Uciar. for many generations.* Of his judicial ex- ploits there is no record, except at a grand assize which, during the King's absence in Normandy, ho held at Huneote in Leicestershire. Here he convicted capitally, and executed, no fewer than four score and four thieves, and deprived six others of their eyes and their virility ; drawing upon himself the imputation of cruelty, and not escaping the suspicion that he was influenced by a desire to enrich himself from the forfeitures which were incurred.! He held the office for a long period, and was much more praised for the vigour than the clemency or justice with Avhich he exercised its functions. t The Chief Justiciars of King Stephen were not men of much renown § — till the last, — who was no other than Prince Henry, afterwards his lisi."^^ successor, and so famous under the name of ^^ 1,53 Henry II. After the long struggle for the Prince Henry 1 1 c (afterwards crown of England Letween the daughter 01 Henry 11.) Henry I. and him who pretended to be the tidar. heir male of the Conqueror, it was at last settled that he should reign during his life, and that * Nov7 represented by the Baroness Basset. t A.D. 1121. " Tuto hoc anno fuit Rex Henricus in Norniannia. Hoc ipso niiiio, post S. Andreaj fcstum teni.it Radulfus Basset et Regis Theini Pro- ccriim Concilium in Lethcca^trescirc apud llunde-hope, ct suspenderunt ibi tot furcs quot antea nuniquam ; scilicet in parvo temporis spatio, oninlno qua- tuor et qHadrapinta viros. Se.\ item viros privaruut oculis et testiculis." The writer goes on pathetically to describe the oppressed condition of his omntry- men under the Chief Justiciar : " Adnio- dum gravi? fuit his annus. Qui quic- quam honorum habebat, iis privatus erat per magna vectigalia, et per iniqiia decreta; qui nihil) habebat periit fame." — Chron. Sax. ad ann. 1124. J He was succeeded by his son Richard Basset, of whom 1 do not find any more precise notice than lij' Ordericus \'i talis, who says, ' Ricardus Ba«set, cujus in Anglia, vivente Henrico Reg?, p.tentia uipote Capitalis Justitiarii, uiagun fuit." —Ord. rit.wt ann. 1136. } GeofTrcy I! idel, Geoffrey do Clin tn and Albcric de Vcre. c 2 20 EEIGN OF HENEY I. Chap. I. her son by Geoffrey Plantagenet should be inimecliately appointed Chief Justiciar, and shouhl mount the throne on Stephen's death.* I shall not attempt to rival Lord Lyttleton by attempting a history of this Chief Jus- ticiar from his cradle to his grave. I must content myself with saying that he held the oiBce above a year. During the first six months he actually presided in the Aula Eegis, and, with the assistance of the Chancellor and the other great officers of state, decided the causes civil and criminal which came before this high tribunal. He then paid a visit to the continental dominions which he held in his own right and in right of Eleanor his wife, extending from Picardy to the mountains of Navarre. Sojourning in Normandy when he heard of the death of Stephen, he was impatient to take pos- session of the croAvn which had been secured A.D. 1154. to him by the late treaty. A long con- tinuance of stormy weather confined him a prisoner in the haven of Barfleur, but at last he reached South- ampton, and, being crowned King of England, the first act of his reign was to appoint a new Chief Justiciar. The object of his choice was Eichard de Luci, a „. , , , powerful baron of a distinguished Norman Richard de -*■ . ° Luci Chief family, who was expected to govern the realm with absolute sway in Henry's name. Although he long nominally retained his office, it was soon stripped of all its power and splendour. The Lord Chancellor had hitherto been a subordinate officer, but the towering ambition and lofty genius of Thomas a Becket, almost from the moment when he received the Great Seal, reduced all the other ministers of the crown to insignificance, and, till the time when, * •' Anno Gmtire 1153, qui est annus Angliae sub ipso, et omnia negotia per 13 regni Regis Stephani, pax Anglia? eum terminabantur. Et ab illo tempcro reddita est, pacificatis ad invicem Rege Rex et Dux unanimos eraiit in regimine Stephano et Henrico Duce Normannice. Regni." — Hovedcn, vol. i. p. 490. n. 40. Rex vcro constituit Ducem .Tusticiarium A.P. 11.-.4. RICHARD DE LUCI, CHIEF JUSTICIAR. 21 Lecomiug Archbishop of CantcrLnry, lie quarrellcMl with his benefactor, all the power of tlio state was concentrated in his hands. Encroaching on the func- tions of the Chief Justiciar, ho not only ruled all ques- tions that came before the Aula IiE(iis, although only sixth in point of rank of those who sat as judges there,* but the domestic government of the country and foreign negotiations were exclusively intrusted to him, and when war broke out he commanded the royal army in the field. After the King's quarrel with the Archbishop, the importance of Do Luci was very much en- '■ ... A.D. 1162. hanced, and we not only find judicial proceed- ings recorded as having taken place, " Coram Eicardo de Luci et aliis Baronibus apud Westmonasterium," but wo learn that he went about administering justice all over tlie kingdom, and that he quelled a dangerous insurrection in London. To him we are chiefly in- debted for the CoNSTiruTioxs of Clarendox, by which a noble effort was made to shake ofi" the tyranny of Rome, and which were adopted as the basis of our ecclesiastical polity at the Reformation.! lie was ex- communicated for the part he had taken in this heretical production, but afterwards made his peace with the Church. At last he was overwhelmed by the terrors of superstition, and, abandoning worldly cares and gran- deur, he laid down his office, became a monk, and died wearing the cowl in a monastery which he had founded.^ His successor was Robert Earl of Leicester. Al- though inferior men now held the Great RobertE.iri Seal, the office of Chief Justiciar did not re- chlefTiis^'^ cover its splendour till near the end of this *'*^''""- reign, Avhen it was filled by one of the greatest men * " lie came after tbe Justici.ir, the relicta Justiciariil potcstate, factus est Constable, the JIarcschall, the Scneschall, Canonicus rigul.iris in Abbatia de Leslies and the Chamberlain." — Madd.Fxch.c. ii. qiiam ipse in fundo suo fecerat." — t M.-idd. Esch. i. 146-701. A'. Itoi-etien, f. 337, (a). J " Ric. de Luci Ju&ticiarius Angllse, 22 REIGN OF HENRY I. CxHap. I. wlio have appeared in Englisli history. We are in- formed of only one judgment of the King's Court while the Earl of Leicester presided there, and this was upon the ex-Chancellor, Thomas a Becket, who was first amerced in 500Z., and proving contumacious, was ordered to be imprisoned.* I will therefore pass on to Eanulfus de Glanville, equally distinguished as a lawyer, a statesman, and a soldier. He was born in the end of the reign of Henry I., „ ,, , at Stratford, in the county of Suffolk ; Kanulfus de . "L r. i Glanville. his family was noble, but I do not find any particulars of his progenitors.f He afforded a rare instance in those days of a layman being trained as a good classical scholar, and being initiated in all the mysteries of the feudal law. At the same time he was a perfect knight, being not only familiar with all martial exercises, but having studied the art of manoeuvring large bodies of men in the field, according to the most scientific rules then known. He attached himself to several Chief Justiciars,! sometimes assist- ing them in despatching business in the Aula Eegis, and sometimes accompanying them in their campaigns. He inherited a considerable estate from his father, and he obtained large possessions in right of his wife Berta, daughter and heiress of Theobald de Valeyinz, Lord of Parham. Part of these were situate in the county of York, where he seems to have established his principal residence. Under King Stephen he was re- ceiver for the forfeited Earldom of Conan, and collector of the rents of the Crown in Yorkshire and Westmoreland. § * Iloved. vol. ii. 494. n. 1. 10. 20; all the forms of procedure, there seems 495. n. 10. reason to think that he must some time f " Ranulpli de Glanvilla fuit vir prai- have acted as prothonotary or clerk of clarissimiis genevc, utpote de nohile the court, although never in orders, sanguine."— See Preface to Lord Coke's § Madd. Exch. i. 297 {g), 430 (6), 8th Rep. xxi. 328 (j>); ii. 183 (?/), 200 {g). X From his knowledge of practice, and A.D. nC2. liANULFUS DE GLANVILLE. 23 Diiring tho year 1174, tlio 20th of Ilcnrv II., he was High Shciift' of Yorkshire, and in this He is Hhrrifr capacity ho conferred greater glory on his »f Y.-rksiiiro. country than any Englishman, before or ' since, holding merely a civil office. Henry II. being hard jiresscd in his continental dominions by the unnatural alliance between his rebellions sons and Louis VII., the Scots under their King, "William the Lion, invaded England, and committed cruel ravages in the northern counties. Being stopped ou the banks of the Tyne by tho obstinate defence of the Castle of Prudboc, Gcolfrey, Bishop of Lincoln, the King's son by the Fair Eosamond, collected| a large army to en- counter them. At his approach they retreated to the north, and he, thinking that they had recrossed the Tweed, marched back to his see, singing Te Deum, and celebrating very boastfully tlie supposed success which he had gained. The King of Scots, however, took several strong castles in Northumberland, which had at first withstood his assault, and laid siege to Alnwick with his regular forces, sending skirmishing parties even beyond the Tyne and tho Tees to collect provisions and levy contributions. One of these, commanded by Duncan, Earl of Fife, surprised the town of AVark- worth, which they btirned to the ground, massacring all the inhabitants without distinction of age or sex, and not sparing even those who had taken sanctuary in the churches and convents. Kanulfus de Glanville, the sheriff of Yorkshire, heaving of these excesses, without wait- Hpt.ik'-s ine: for orders from the government, issued ^viiiiamthe , • <. • • 1 • l.ion. King a proclamation for raising tlie posse comitaius, of Scots, pri- and all classes of the inhabitants flocked eagerly to his standard. AVith a body of horse, in which were about four hundred knights, after a hard day's march, he arrived at Newcastle. There he was 24 KEIGN OF HENRY II. Chap. I. told that William tlio Lion, instead of repressing, encouraged the devastation committed by the ma- rauders, and, believing that there was no longer any army to face him, entirely neglected all the usual pre- cautions of military discipline. The gallant sheriff resolved to push forward next morning, in the hope of relieving Alnwick and surprising the besiegers. The English accordingly began their march at break of day, and, though loaded with heavy armour, in five hours had proceeded nearly thirty miles from Kcw- castle. As they were then traversing a wild heath among the Cheviot Hills they Avere enveloped in a thick fog, and the advice was given that they should try to find their way back to Newcastle ; but Glan- ville, rather than stain his character with the infamy of such a flight, resolved to proceed at all hazards, and his men gallantly followed him. They proceeded some miles in darkness, being guided by a mountain stream, which they thought must conduct them to the level country'. Suddenly the mist dispersed, and they saAv before them in near vicAv the castle of Aln- wick beleaguered by straggling bands of Scots, and the Scottish King amidst a small troop of horsemen divert- ing himself with the exercises of chivalry, free from any apprehensions of danger. William at first mistook the English for a party of his own countrymen return- ing loaded with the spoils of a foray. Perceiving his error, he was undismayed, and, calling out "Noo it will be seen whilk be true hiichts"* he instantly charged the enemy. In a few minutes he was over- powered, unhorsed, and made prisoner. Some of his nobles coming to the rescue, and finding their efforts ineffectual, voluntarily threw themselves into the hands * These words he must have spoken spoken in French, which was then tlic that they might be understood by his language of the liiglier orders in Scotlano Lowland common soldiers Addressing as well as in England, the knights themselves, he would have A.I). 1171. RANULFUS DE GLANVILLi;. 2o of the Eii«;;i.sli, that tliey miiclit l>o partakers in tlio calamity of their sovereign, (.ihiiiville, prudently con- sidering that he might he endangered by the reassem- bling of the scattered bands of the Scots, immediately set off with his prisoners for Newcastle, and an ived there the ^ame evening. Thus did the valiant civilian in one day, after the fatigue of a long march, ride at the head of a band of heavy armed horse above seventy miles, charge a national army, and make captive a King who had threatened to carry war and desolation into the very heart of England. Having secured his royal prize in the strong castle of liichmond, he sent off a messenger to London to announce his victor}'. It so happened that, the same hour at which William was taken at Alnwick, Henry had How the been doing penance at the tomb of St. rocoivwiby Thomas of Canterbury.* Alarmed by the ^i«'"-yii- dangers which surrounded him from domestic and foreign enemies, and dreading that ho had offended Heaven by the rash words ho had spoken which led to the martyrdom of the Archbishop, he had thought it necessary to visit the shrine of the new saint. At the distance of three miles discovering the towers of Canterbury Cathedral, he alighted from his horse, und walked thither barefoot, over a road covered with rough and sharp stones, which so wounded his feet that in many places they were stained Avith his blood. His bare back was then scourged at his own request by all the monks of the convent, and he continued a whole day and night before the tomb, kneeling or lying pros- trate on the hard pavement, employed in prayer, and Avithout tasting nourishment. He then journeyed on • All Kurope was now ringing with day of his death, " In order that, boinj? the fame of his miracles, and, by a papal continually applied to by the prayers oi bull issued the year befirc. he had bten the faithful, he should intercede with God declared a Saint und a Martyr, an anni- for the clergy and people of Kngland." versary festival being appointed on the 26 EEIGN OF HENRY II. Chap. I. to Westminster ; and he was lying in bed, very sick from tlie penauco lie had undergone, when, in the dead of night, a messenger, stained with the soil of many counties, arrived at the palace, and, declaring that he Avas the hearer of important despatches, swore that ho must see the King. The warder at the gate and the page at the door of the bedchamber in vain opposed his entrance, and, bursting in, he announced himself as the servant of Eanulfus do Glanville. The question being asked, "Is all well with your master?" he answered, " All is well, aiad ho has now in his custody your enemy the King of Scots." "Eepeat those words," cried Henry, in a transport of joy. The messenger repeated them, and delivered his despatches. Heni-y, having read them, was eager to communicate the glad tidings to his Courtiers, and, expressing gratitude to Eanulfus do Glanville, piously remarked that " the glorious event was to be ascribed to a higher power, for it had hap- l^ened while he was recumbent at the shrine of St. 'i'homas."* Glanville was ordered forthwith to appear with his prisoner, and to carry him to Falaise in Normandy. Here William the Lion was kept in strict confinement, till the negotiation was concluded by which he was un- generously compelled to acknowledge himself the liege- man of the King of England. The sheriff was immediately promoted to be one of the Justiciars appointed to assist the great officers in the Aula Eegis, and to go iters or circuits for adminis- tering justice periodically in different parts of Eng- land.! ^'^ 'tliis new capacity he showed as much zeal * Newb. ii. 36. Gervase, 142T. Dal- After the mention of his name 'with five rymp. Annals, i. 129. R. Hoved. 529. others, there is the following observation f There seems reason to think that he in Jladdox : — " Isti sex sunt Justitiaj in was one of a court appointed to receive curia regis constituti ad audiendum cla- petitions in the first instance, and to mores populi." report upon them to the Aula Regis. A.D. 1174. RANULFUS DE GLANVILLK. 'J7 as when leader of a militar}- Land, and tlic only fault imputed to liini was that ho sometimes displayed " a vigour hoyond the law." These stretches of au- thority, however, were justified or palliated hy the turbulence of the times. IIo now possessed the entire confidence of the King, and ho gradually acquired more influence than any otlier minister. One task of peculiar delicacy was committed to him. Henry, although he owed so much to his wife, proved to her the worst of husbands ; and he not only enter- tained the Fair Eo.-amond and other mistresses, but he actually shut up Eleanor as a prisoner in the castle of Winchester. The government of this fortress, with the care of the royal captive, was now assigned to Glan- ville, and was continued to him till the death of Henry, after a lapse of sixteen years. He had contrived, how- ever, to give satisfaction to both parties, for the King praised him for his watchfulness and the Queen for his kindness.* As a reward for all these services, Glanville at last sained the object of his ambition, and was ... ID 1180. installed in the office of Chief Justiciar, It (Vumviiie had been some time in commission, the com- jusudarf^ missioners being the Bishops of AVinchester, Norwich, and Ely ; but as soon as the Tope heard of their appointment he wrote to say that "it was the duty of pastors to feed their flocks, not to act the part of secular magistrates," and he recalled them from the courts in which they presided to the care of the dioceses to which they had been consecrated. On their resigna- tion, Eanulfus de Glanville, with universal applause, was appointed to the office with sole and undivided sway.f He is the first who filled it who is celebrated for learning, impartiality, and other qualities purely * See the authorities collected by Miss Eleanor. Strickland in her excellent Life of Queen f Diceto 600. R. Iloved. 33T. 28 REIGN OF HENRY II. Chap. i. judicial. Under liim the Aula Eegis deserved the praise bestowed upon it by Peter de Blois in a letter to the King :— '-If causes," said he, "are tried in the presence of your Highness or your Chief Justiciar, then neither gifts nor partiality are admitted ; there all things pro- ceed according to the rules of judgment and justice ; nor does ever the sentence or decree transgress the limits of equity. But the great men of your kingdom, though full of enmity against each other, unite to prevent the .complaints of the people against the exactions of sheriffs, or other officers in any inferior jurisdictions, whom they have recommended and patronise, from coming to your royal ears. The combination of these magnates can only be truly compared to the conjunction of scales on the back of the Behemoth of the Scriptures, which fold over each other, and form by their closeness an impenetrable defence."* Yet my Lord Chief Justiciar Glanville himself did A.D. 1184. ^°* escape calumny. The story was circulated against him, and is recorded by a contem- porary historian, that, to get possession of the wife of Gilbert de Plumpton, ho brought a false charge of rape against that potent baron before the Aula Eegis, sitting at Worcester, and sentenced him to be hanged; but that the King, taking pity upon the prisoner, and knowing the motive for the prosecution, spared his life, and commuted the sentence to perpetual imprisonment.f This is probably a scandalous perversion of the truth by an enemy ; for we have every reason to believe that Epistle 95 ad Hen. Regem. pietate eommotiis pracepit custoditum t A.D. 1184. " Eodem auno cum Gil- manere ; sciebat euim quod per invidiam bertus de Plumtun Miles nobili prosapi.i fecerat h»c illi Ranulfus de Glanvilla, ortus ductus esset in vlnculis nsque qui eum morti tradere volebat propter Wigorniam, et accusatus csset de raptu uxorem suam. Sic itaque Miles ille a coram Dumine Rege a Raiuilfo de Glaii- morte libcratus usque ad obitum Regis villa Justiciario Anglite, qui eum con- fuit incarccratus."— «. Hovcd. vol. ii. demnare volebat, injusto judicio judi- pp. 622, 623. catus est suspendi in patibulo. Re.x A.n. 1184. IIANULFUS DE GLANVILLK. 29 the Cliief Justiciar was a man of pure morals and hon- oiiral)lc prinfi])lcs ; and it is incredible that Henry, who was renowned for his love of justice, should have continued to employ, in a post of high power and trust, one whom ho had detected in attempting such an enor- mity. We need not doubt that the punishment was mitigated on account of some extenuating circumstances, which might have been brought to the King's notice by the Judge himself. Glanville continued to fill the office of Chief Justiciar for five years longer; and his judicial repu- , ,. \•^^ i • • " TT Glanville as tation still went on increasing, lie now a law writer, composed and published in Latin, ' A Trea- tise on the Laws and Customs of the Kingdom of England,' which on some points is still of authority, and which may be perused with advantage by all who take an interest in our legal antiquities. This autlior is to be considered the father of English iuris- V D 1 1 3*^ prudence. Bracton, who wi'ote in the follow- ing century, is more methodical and elegant, but he draws largely from the Roman civil law, and is some- times rather speculative ; while Glanville actually de- tails to us the practice of the Aula Eegis, in which he presided, — furnishes us with a copious supply of pre- cedents of writs * and other procedure then in use, — and explains with much precision the distinctions and subtleties of the system which, in the fifth Norman reign, had nearly superseded the simple juridical insti- tutions of our Anglo-Saxon ancestors. The general reader may be amused by a ti-anslation of his Pre- iwcE : — " Tlic Majesty oF the King should not merely be supported with arms to restrain rebels aad to repel foreign invaders, but * It is curious to observe that bis those used in the reign of William IV. " I'r.Tcipc quod rcddat " and varii.us wbcn real actions were abolisb'.d. cither writs are precisely the s;ime as 30 REIGN OF HENRY II. Chap. I. ought likewise to be adorned witli laws for the peaceful govern- Prefacpto ment of the people.* May our most illustrious Gianviiio's Sovereign conduct himself with such felicity both in book. peace and in war, — by the force of his right band crushing the insolence of the proud and the violent, and with the sceptre of equity moderating his justice to the humble and obedient, — so that, as he may be always victorious over his enemies, so he may on all occasions show himself impartially just in the government of his subjects ! " How vigorously, how skilfully, how gracefully our most ex- cellent King has conducted his arms and baffled his foes is mani- fest to all, since his fame has now spread over the whole world, and his splendid actions have reached even the extremities of the globe. How justly, how discreetly, and how mercifully he who loves peace, and is the author of it, has conducted himself towards his subjects is evident, since the Court of his Highness is regulated with so strict a regard to equity, that none of the judges have so hardened a front or so rash a presumption as to dare to deviate, however slightly, from the path of justice, or to litter a sentence in any measure contrary to truth. f Here, indeed, no poor man is oppressed by the power of his adversary, and the balance of justice is not swayed by love or by hatred. Every decision is governed by the laws of the realm, and by those customs which, founded on reason in their origin, have for a long time been established. What is still more laudable, our King disdains not to avail himself of the advice of such men (although his subjects) who, in gravity of manners, in familiarity with tile laws and customs of the realm, in wisdom and in eloquence, are known to surpass others, and whom he has found by experience to use most despatch (as far as is consistent with reason) in the administration of justice, by deciding difficult questions and ending suits ; acting now with more severity, now with more lenity, as they see most expedieut.J " The English laws, although not written, may, without im- propriety, be termed laws. Indeed, we adopt the maxim, ' That which pleases the prince has the force of law.'§ But I refer more particularly to those laws which evidently were promul- gated by the advice of the nobles and the authority of the prince. If from the mere want of writing only they should not be considered as lau-s, then, indeed, writing would seem to confer * This commencement is imitated by Lady Plumpton. Bractoii, Fleta, and the Scottish "Regiam t 'i^"s is said to afford proof that cur Magistratum." system of equitable jurisprudence is to f Tlie writer seems not to have sus- be traced to the Aula Regis, pected the scandalous tales spread abroad Cj Justin. Inst. li. t. 2, s. C. respecting himself and Sir Gilbert and A.D. 1188. IIANULFUS DE GL^VNVILLE. 31 more authority upon laws tliau cither the authority of those f rami 11'^ them, or the equitable principles on which thoy arc framed. " To rciluce in every instance the laws ami constitution of this realm into writing would in our times be absolutely impossible, as well on account of the ignorance of writers as of the confused multiplicity of enactments. But there are some well established rules, which, as they more frequently arise in court, it appears to me not presumptuous to put into writing, to assist the memory and for general refcreace. A certain portion of these I mean to submit to the reader in the following work, jnir^wsely making use of a familiar style, and of words which occur in legal proceedings. jMv object has been to instruct not only the pro- fessional lawyer," but such as arc less accustomed to technical learning. I^'or tlie sake of perspicuity I have divided the present work into Books and CHAr-xEns."* As a specimen I may give the proceedings in a suit for land,— leading either to " Trial by Battle," or " the Grand Assize :" " After three reasonable essoins, which accompany the view ot the land, both parties being again present in court, jj^^jg (,f j^ai the demandant shall claim in this manner : — ' I dc- by Grand mand against this H. half a knight's fee, or two ^^^^f^ "'"''y ploughlands, in such a vill, as my right and inherit- ance, of which my lather was seised in his demesne as of fee, in the time of King Henry I., and from which he took the profits to the value of 5s. at least, in corn, hay, and other produce ; and this I am ready to prove by my freeman, I., to whom his father, when on his death-bed, enjoined, by the faith which a son owes to his father, that if he ever heard a claim concerning that land, he should prove this as that which his lather saw and heard.' " The demand being thus made, it shall be at the election of the tenant either to defend himself by the Duel, or to put himself upon the King's Grand Assize, and require a recognition ' which of the two has the greater right to the land in dispute ? ' But * Lord Coko says : " Ranulphus do which words, spoken so many hundred Glanvilla, in the reign of King Henry II., years since, it appeareth that then there learnedly and profoundly wrote; of part were laws and customs of this kingdom of the laws of England (whose works grounded upon reason and of ancient remain extant at this day); and in the time obtained, which he neither could Preface he writoth that the King did nor would have afiinned if they had been govern this realm by the laws of this so recently and almost presently before kingdom, and by customs founded upon that time instituted by the Conquoroi'. — reason and of ancient time obtained. By Preface to Stlt Hep. xviii. 32 EEIGN OF HENRY II. Chap. I. here we Avould observe, that after the tenant has once waged the Duel, he must abide by his choice, and cannot afterwards put himself upon the Assize. " In the Duel, the tenant may defend himself either in his own person if he chose so to do, or by any other unobjectionable witness as his champion. But it frequently happens that a hired champion is produced in court, who, for reward, has undertaken the proof. If the adverse party should except to such a chnm- pion, alleging him to be an improper witness, from having accepted a reward, and that he is ready to prove this accusation against the champion, this matter shall be tried, and the principal duel shall be deferred. If upon this charge the champion or the demandant should be convicted and conquered in the duel, then his principal shall lose the suit, and the champion shall never from thenceforth be admitted in court as a witness for the purpose of making proof by duel for any other person. But, with respect to himself, he may be admitted either in defending liis own body, or in prosecuting any atrocious personal injury, as being a violation of the King's peace ; and he may also defend by duel his right to his own fee and inheritance." The proceedings are described till at last we come to the writ of possession : — " The King to the Sheriff of , greeting : I command you that without delay you give possession to M. of half a knight's fee in the vill of , in your bailiwick, concerning which there was a suit between him and H. in my court ; because such land is adjudged to him in my court by the duel. Witness," &c.* I add the mode of proceeding iai cases oi treason: — " When any one is charged with the King's death, or with having raised a sedition in the realm or in the arm}-, either a certain accuser appears, or not. If the public voice alone accuses him, he shall be required to give bail, or he shall be imprisoned. The truth of the charge shall then be inquired into in the presence of the Justices, who weigh each conjecture that makes for, or against, him. If on the trial by the ordeal a person is convicted of a capital crime the judgment is of life and members, which are at the King's mercj'. " Should, however, a certain accuser appear, and give security to prosecute his plea and propound his charge, — that he had seen, or by other evidence could ]>rove in court, the accusal guilty of having conspired against tlie King's life, or having raised a * B. ii. eh. i. — iv. A.D. 1188. EANULFUS DE GLANVILLE. 33 sedition in the realm or in the tirmy, and the accused on the other hand deny every tiling the otlier h.id asserted, it is usual to decide the plea by the Duel, And here it sliould he observed, that from the moment the duel is wa^ed neither party can add or diminish any thinji from the words employed in wa'^ing the duel, or in any other measured ccline or recede from his under- taking, without being held as conquered, and liable to tlie penal consequences of defeat Nor can the parties be afterwards reconciled to each other by any other mode than the King's licence or that of his justices." * It is said that Glanville drew up this compendium of the laws of England for the public use by the command of Henry II. f It remained in MS. till the year 1554, when it was fir.st pi-inted at the instance of Sir William Stanford, a grave and learned judge of the Court of Common rieas.| Its merits have been very generally acknowledged. Dr. Eobertson, in his observations upon the early part of the 12th century, says, "that in no country of Europe was there at that time any collec- tion of customs, nor had any attempt been made to render law fixed : the first undertaking of that kind was by Glanville, Lord Chief Justice of England, in his Tractatus cle Legihus et Consiietudinibus, composed about the year 1180."§ Lord Coke thus assigns the reason for giving a valuable sketch of Glanville's life. — "in token of my thankfulness to that worthy Judge for the fruit which I confess myself to have reaped out of the fair fields of his labours. I will, for the honour of him, and of his name, and posterity which remain to this day, impart and publish, to all future and succeeding ages, what I have found of great antiquity and of undoubted verity."|| * Book xiv. c. 1. The most recent in- t * Inst 345. n. stance we have of a duel of this sort is ^ Charles V. vol. i. p. 296. The his- that between Henry of Bolingbroke and torian, however, seems to have over- Thomas Muwbray, fuki; of Nurfolk, looked the "Assizes of Jerusalem," com- which is very graphically described in posed in 1099; highly valued by I^ord the first act of Shakspeare's play of Loughborough and by Gibbon. Richar.t II. II "Nereverendissimoilli judici videar + Madd. Kxch. 123. ingratus pro fructu quem ex pulchcrri- VOL. I. D 34 REIGN OF HENEY n. Chap. I. Some, I am well aware, have lately attempted to deprive Glanville of the honour of the authorship of the treatise which had so long passed under his name ; but, in suggesting that it must have been written by an ecclesiastic employed by him, they appear to have little other reason beyond the assumed incompetency of one who was a layman and a warrior to write it ; and they forget the manners of the age when they object to a grave and learned judge throwing off his robes and laying aside his pen, to put on a coat of mail and to grasp a spear.* Glanville continued with energy to exercise the Gianviiie's functions of his office in preserving the peace conduct to of the kingdom, as well as in presiding; in the Welsh o ' r a the Aula Regis. In the year 1 181, the Welsh, during the King's absence in Normandy, having made an incursion into England, and killed Eanulfus de Poer, sheriff of Gloucestershire, the Chief Justiciar, as guardian of the realm, drew together an army, marched against the mountaineers, and drove them back to the mis ejus operum arvis me coUegisse con- which arises from the title-page in the liteor, in hunorem ejus, et nominis, et most ancient MS. copy of the work, nobilis hodie florentis, in secula futura saying, that it was written in the time emittere, et in medium proferri, visum of Henry II., "the illustrious Ranuljih est, quaj magns fore vetustatis et explo- de Glanville, who, of all in those da3'S ratai veritatis saspissime sum expertus." was the most skilled in the law and — Preface to Sth Rep. xviii. ancient customs of the realm, then Spelman says, " Hie cum ad suam holding the helm of justice. It is truly usque jetatem(instarrhetrarumLycurgi) observed that he would not thus have aypac^os id est non scripta mansisset, praised himself, but the title-page is maxima pars juris nostri ; omnium pri- evidently the composition of a later age. museyYpa(|)ovreddere aggressus est, com- Hoveden evidently considered Glanville posito illius argument! libro quodam, cui the author of the book which goes by in antiquis MSS. iste tit\ilus Traclatus his name, and probably thought that the de Ugibus et consuetudinibus Regni learning and ability which it displays Anglia, tempore Regis Hevrici II. contributed to his elevation, — thus nar- compositus, justitio', gubemacula tenente rating his appointment as Chief Jus- illustn viro Ranulpho de Glanvilla, ticiar:— " Henricus Rex Angliie, pater, Juris Regni et Antiquarum consuetudi- constituit Ranulphumde Glanvilla suum num eo tempm-e peritissimo." — Gloss. Justiciarium totius Anglise, cujus sapi- p. 33S. entia conditae sunt leges subscrlptas quas * The objection hardly deserves notice, Anglicanas vocamus." A.D. 1185. RANULFUS DE GLANVILLE. 3J woods and fastnesses of their own country.* A par- tisau warfare was kept ui) between the two nations for some years, till at last Glanvillo was sent by Henry to treat with Rees ap Gryffith, and the other chiefs of South Wales, not only for the purpose of finishing the war, and bringing back those who were called rebels to their fealty, but likewise for retaining a body of their foot to serve in the English army against Philip, King of France. Glanville's mission was in all respects most successful. He perceived, as Lord Chatham did with respect to the Scotch Highlanders six centu- ries afterAvards, that the best way of preventing them from annoying England was to employ them against foreigners, and that they would be foithful in propor- tion as they themselves were trusted. The Welsh very readily agreed to keep within their ancient boundaries, and to acknowledge Henry as their sovereign liege lord : they furnished a body of auxiliaries, who served with high reputation against his enemies on the Conti- nent; and a basis of conciliatioji was established, whidi subsisted till Edward I. determined to crush tlie Princes of Wales, and to bring the whole principality under his own immediate rule.f As an acknowledgment of Glanville's services, civil and militiiry, there was now conferred upon ^.d. ii-e. him the additional dignity of Dapifer.+ pSum The only other important affair, during j^j^^^/jj^'' the present reign, in which our Chief Jus- Henry ii. ticiar is stated to have been concerned was monks of a dispute between the King and the monks Ca'"*''^"'^- of Canterbury. As they collected immense riches from the miracles of St. Thomas, Henry had attempted to establish a rival foundation near this city; and, that they might preserve their monopoly, they prevailed on • Benedict. Abbas, ad ann. 1181. J Madd. Exch. i. 24. t Benedict. Abbas, ad ann. Ils5, 1186. D 2 36 KEIGN OF HENRY 11. Chap. I. Pope UrlDan III. to send him an apostolical mandate, ordering him to put a stop to the building. Supported by the present Archbishop of Canter- bury, much more obsequious than his sainted pre- decessor, he disregarded the mandate, and was more eager than ever to mortify the monks. His Holiness thereupon appointed the abbots of Battle, Feversham, and St. Augustine to enforce the execution of the man- date. They, holding an ecclesiastical court under the Pope's authority, were about to issue process against all connected with the new foundation, when Glanville, as Chief Justiciar, issued a writ of prohibition, which is still extant, in the following form : — " E. de Glanville, &c., to the Abbot of Battle, greeting : I command you on behalf of our Lord the King, by the allegiance which you owe him, and by the oath which you have sworn to him, that you by no means proceed in a suit between the Monks of Canterbury and the Lord Archbishop of that See, until you shall have answer made to me thereupon ; and, all delay and excuses being laid aside, that you appear before me in London, on Saturday next after the Feast of St. Margaret the Virgin, there to make answer in the premises. Witness," &c.* The suit being spun out for some years, and Clement, a new Pope, vigorously taking up the cause of the monks, Glanville attempted to bring about an amicable settlement of the difference, and took a journey to Canterbury, that upon the spot he might negotiate with better effect. The subprior said that he and his brethren much desired the King's mercy, — Glanville, C. J. " You yourselves will have no mercy ; but, from your attachment to the Court of Home, refuse to submit to the advice of your sovereign or of any other person." — Suhprior. " Saving the interests of our monastery, and the rights of the Church, we are ready to submit to the King ; but we are greatly deterred from implicitly * Appendix to Litt. Hist. H. II. vol. vi. similar writ to each of the two other 427. It is supposed that there was a legates, but this is the only one extant. A.n. 1188. RANULFUS DE GLANVILLE. 37 trusting to the King, by reason that he has suffered us to remain during almost two years deprived of ull our possessions, and in a measure imprisoned within our walls."— GlanviUe, C. J. " If you doubt the King, there are bishops and abbots of your order, and there are barons and churchmen belonging to the court, who. should you trust your cause to them, would certainly do you justice." — Subprior. " All these you mention are so partial on the side of the archbishop, so complaisant to the King, and so unfriendly to us, that we do not venture to confide in their arbitration." — Glanville, C. J. (hasting away with much indignation). " You monks turn your eyes to Kome alone; and Eome will one day destroy you!" — This controversy was at last com- promised, and there was religious peace in the country during the remainder of the reign of Henry II. The passions of men were now absorbed in the ncAv Crusade. Europe had been thrown into a ^^p^. ^ru- state of consternation and alarm by the intel- sade. A l> 1 1 83 ligence that Saladin had taken Jerusalem, and that nearly all the conquests of the first crusaders had been recovered by the infidels. A parliament being held on the 30th of January, in the ^-ear 1189, the Archbishop of Canterbury, "by the authority of God, of the blessed apostles Peter and Paul, and of the Chief Pontiff, denounced excommunication against all persons who for seven years should begin or foment any war among Christians ; and declared a plenary absolution from all sins to all persons, whether eccle- siastics or laymen, who should take the cross." The same day the Primate, and his vicar the Bishop of Kochester, preached before the King and Parliament on the mystery of the Cross ; and, pointing out the sin and shame imputable to all who professed to be dis- ciples of Jesus, from his sepulchre being left in the hands of believers in the false prophet Mahomet, 38 EEIGN OF HENRY II. Chap. 1. exhorted men of all degrees, from the King on his throne to the meanest of his subjects, forthwith to join the gallant and pious hands who were marching for the East, and, by assisting in the great enterprise, to insure to themselves bright glory in this world, and eternal salvation in the next. The King expressed his determination to march for Palestine as soon as the affairs of state in which he was engaged would permit. But what was the astonishment of all present, when the Chief Justiciar, Ranulfus de Glanville — Gianviiie known to be vigorous and energetic, but not suspected of enthusiasm, now well stricken cross. in years, who had spent the best part of his life in studying the law and administering justice, who had a wife and many children and grandchildren the objects of his tender attachment — rose tip as soon as the King had concluded his speech, and, asking the Archbishop to invest him with the cross, was enlisted as a crusader with all the vows and rites used on such a solemn occasion. So much in earnest was he, that he wished ft)rthwith to set forward for the Holy Land. From the accu- mulated profits of his office, he was abundantly able to equip himself and the knights whom he meant to take in his train, without following the general example of selling or mortgaging his lands. But the young princes eng-ao-ed in another unnatural rebellion, and the King laid his commands on the Chief Justiciar to delay his journey till tranquillity should be restored. ''^ ' ' ' Before this consummation, the unhappy Henry expired at Chinon of a broken heart. Glanville was present at the scene when, on the approach of Eichard, blood gushed from the dead body, in token, according to the superstition of the age, that the son had been the murderer of the father. The new monarch, now stung with remorse, renounced all the A.n. 1189. RANULFUS DE GLANVILLE. 39 late companiiins of liis yuiitli who liiul laisltd liim, and oftbred to confirm all his lather's councillors in their offices. This offer was firmly refused by Glanville, who had serious misgivings as to the sincerity of Einhard, and who, now wearing the cross, was hound l)y his vow, as well as incited l)y his inclination, to set forward for the recovery of Jerusalem, However, he discharged the duties of the office for some weeks, till a successor might be appointed ; and he attended, with the rank of Chief Justiciar, at IJichard's coronation — when he exerted himself to the iitmost to restrain the people from the massacre of the Jews, which disgraced that solemnity. Some authors represent that ho was deprived of his office at the death of Henry II., and obliged to pay a heavy fine for imputed jiidicial delinquency ; but there is no foundation for the story, beyond his volun- tarily contributing a sum of money towards the equiji- tnent of the army now embarking for Palestine. He ■yas treated with the greatest favour not only by the new King, but by Eleanor, the Queen Mother, who lad long been his prisoner, and who, being now set at l.berty, was destined to be Eegent of the kingdom.* Eichard himself had taken the cross, and was pre- paring for that glorious expedition in which, by his unrivalled gallantry, he acquired his appellation of "the Lion-hearted." He therefore asked Glanville to accompany him, and to fight under his banner. But such was the impatience of the Chief Justiciar to tilt • Richard of Devizes says, " Rannlfus hoc nomine. Ranulfiis deGlanvllla, quo de Glanvilla, regni Anglonim rector et multiis fucrat suo tempore drsertior dum -egis oculus, deportatus et custixliae tra- pra-potuit. privatus jam factus ex prin- iitus, ire saltern sibi liberum et redire cipe, in tantum hebuit priB dolore, ut ledemlt, quindecim mille llbris argenti, gener ejus Hadulfiis de Ardennaejusdem e cum hoc nomen Glanvilla tantii fuissit oris ratione deperderct quicquid oris ejus dE pripterito, nomen scilicet super omne judicio fui^rat consecutus" (pp. 7, 8). nanen, ut quisque, cui concea''.um essct But this chronicler, like some of his soc- a Domino, loquerelur inter principes et ccssors, Is much given to exaggeration, adtraretur a populo, proximo mane non and sacrifices accuracy for effect. — See BUferfuit unus in terra qui vocaretur Hoveden, iii. 20-33. 40 KEIGN OF RICHARD I. Chap. I. with a Saracen, that he declined the offer, and joined a hand of Norman knights, who were to march through France and to take ship at Marseilles for Syria. Unfortunately, no farther account has come down to us of his iourney ; and we read no more Glanvilleis „ , . ** ,i ^ • ,^ n ^^ killed at the of him, exccpt that m the loiiowmg year Acre," he was killed, fighting valiantly at the siege A.D.h9o of Acre.* Of Glanville's numerous offspring, only three daugh- ters survived him. They were married to great nobles ; and he divided among them his vast possessions before he joined the crusade. Collateral branches of his family continued to flourish till the end of the 17th century ; and the name of Glanville, although now without a living representative, will ever be held in honoured remembrance by Englishmen."]" King Eichard I., eager to rescue the holy sepulchre A.D. 11S9. from the Infidels, and reckless as to the Bishop of'*'^' means he employed to raise supplies for Ohief Jus- "tlis equipment of his expedition, upon the ticiar. resignation of Eanulfus de Glanville, put up the office of Chief Justiciar to sale, and the highest * Richard of Devizes, after stating atate ad Terram Sanctam properavit, ct that Baldwin, Archbishop of Canterbury, ibidem contra inimicos crucis Christi and Runulf de Glanville, with others, had strenuissime usque ad necem dimicavit." been sent forward by the Kings of France — Preface to 8th Rep. xviii. and England with a powerful army, Spelman says, "Exutus autem est adds, " ex quibus Baldewinus archi- officio Justitiarii anno I. Ricardl I. et episcopus et Rannlfus de Glanvilla obie- deinde profectus in Terram Sanctam in runt in obsidione civitatis, quam Latini obsidione Aeon moriturus est."— Gloss. Acras, Juda;i Accaron dicunt, dum ad p. 338. hue reges in Sicilia morarentur." Ricar- This celebrated siege lasted two whole dus Diclsiensis, de Mebus gestis Ricardi years, and Acre held out till after the Primi, p. 19. arrival of Richard I. in the summer of In Slowel V. Lord Zouch, Plowden 1191, when he performed the prodigies of 368. 6, where Catline, C.J., in citing the valour which placed him at the head of authority of his great predecessor, says, crusading chivalry. " Glanville was a judge of this realm a t See Lord Lyttleton's Hist, of H. 17., long time ago, for he died in the time of vol. iii. 135-440. Rot. Cur. R. 6. R.I. King Richard I. at the city of Acres in Roger de Wendover, iii. 36. Hoved«n, the borders of Jury." ad an. 1190. Lord Coke merely says, " Provectiori I A.I.. llo3. HUGH PUSAR, CHIEF JUSTICIAR. 41 bidtler was ITugli Tusar, P.ishop of Durham. The two extremes of the career of this preLate wore marked by extraordinary profligacy, wliile during a long in- terval between them he was much honoured for his virtues and his good conduct. Being a nephew of King Stephen, ho was brought up in the court of that worthless sovereign, and his morals were depraved oven beyond the common licentious standard prevailing there. Nevertheless, taking priest's orders, he was made Arch- deacon of Winchester ; and, without any symptom of reformation, was appointed to the bishopric of Durham. If any sort of external decorum 22nrt Jan. was preserved, the lives of churchmen were not strictly scrutinised in those days; but ^^^^'^^'j^. the archdeacon had openly and ostentatiously kept a harem in his parsonage-house, and the Arch- bishop of York refused to consecrate him, — objecting, that he had not reached the canonical age for being made a successor of the apostles ; and reprobating his bad moral character, evidenced by his having tliree illegitimate sons by as many mothers. The bishop elect complained bitterly of this stretch of authority, and appealed to Eome. While the appeal was pending, both the Pope and the Archbishop died; and Hugh, backed by royal solicitations, induced the new Arch- bishop to consecrate him, on an expression of penitence and promise of amendment. He was as good as his word ; and, turning over a new leaf, ho devoted himself to his spiritual ^.^ ^^^_ duties, and became a shining ornament to torious '^ TIP middle age. the episcopate. So ho went on steadil}' tor no less than forty years. During this long period he built many churches in his diocese, and he added to his cathedral the beautiful strncture called the Galilee, which remains to this day a monument of his taste. So much respected was he by his o^vn order, that he 42 REIGN OF EICHARD I. Chap. I. represented the province of York at tbe Council of Tours in 1163, and at the Council of Lateran in 1179. But, at the moment when he was doing penance for „. his early sins, Godric, a pious hermit, had fore- His seven ^ ' ' i _ j years of told that, " although he would long see the light very clearly, he was to he afflicted with blindness seven years before his death." His physical vision remained unimpaired till his eyes were finally closed ; but the prophecy was supposed to be fulfilled by his foolish and vicious actions during the last seven years of his life. On the death of Henry II., A D 1189 %J ' of whom he had stood in great awe, he felt a sudden ambition to mix in politics, and he had an easy opportunity to gratify his inclination. Notwithstanding his princely liberality, he had amassed immense riches, and the highest offices and honours of the state were now venal. At a vast price, he bought from Eichard the Chief Justiciarship, and the Earldom of Northum- berland, — not then a mere empty title, but a dignity to which important jurisdictions and emoluments were still attached. It is said that the King, when girding him with a sword at his investiture, could not refrain from a jest upon his own cleverness in converting an old bishop into a young earl. Very soon afterwards he was installed in the Aula Regis. Although he had a slight tincture of the civil and canon law, he was utterly ignorant of our municipal institutions. But he showed that all he cared for was to reimburse himself for his great outlay, and he was guilty of rapine and extortion exceeding anything practised by any of his predecessors. Eichard, whose departure for Palestine had been delayed longer than was expected, heard of these enor- mities, and declared that, as a check upon the Bishop of Durham, AVilliam Longchamp, the Chancellor, must A.D. 1191. WILLIAM LONGCIIAMP. 43 be associated -vvitli him in the office of Cliicf Justiciar. Tusar, having in vain remonstrated, came to the compro- mise thatEno-hind shoukl l)e divided between the two Justiciars, and that all the counties north of the Trent should be left at his mercy. He now tried to levy ujion this poorer moiety the revenue he had expected to draw from the whole kingdcjm ; but at last made himself so odious, that Longchamp marched a small military force to the north, deposed him entirely from the Chief Justiciarship, deprived him of the Earl- dom of Northumberland, made him prisoner, and kept him in close custody till he gave hostages to deliver up all the castles committed to his charge. He appealed to Richard, now performing prodigies of valour in the East; and that monarch, wishing, or pretending to wish, to do him justice, sent letters ordering him to be restored ; but these were entirely disregarded by Long- champ. The ex-Chief Justiciar died unre- ^j^j^^j^ dressed and unpitied, affording (as it was said) a fine illustration of the text of Scripture, " No man can serve God and Mammon." * William Longchamp, who, uniting in himself the offices of Lord Chancellor and Chief Justiciar, ruled England during the absence of Eichard LwIgculJmp. in Palestine and his captivity in Germany, is one of the most interesting characters to be found in me- diaeval history ; but I have already published whatever I have been able to collect respecting his extraordinary career.j • ""Ranulphus de Glanevilla Regni hutnani Minister extitisset, cum nemo Procurator, cum jam granda;vus esset ct possit utrique prout dlgnum est deser- videreta Rege novitio multamluuscon- vire, secundum illud Dominicum, A't/n suite et iraprovide actitari, solemniter potestis Deo serHre et Mammona." — renuncians oflScio, Dunc-lmensim Epi- Vhron. Walt. Hem. ch. 48. See God. scopum habult successorem, qui nee ob- Pr«8. 753. Roger de Wendover, il. 298 ; luctans injunctum a Rege suscepit oBB- cxl. 8-15. cium: sed si proprlo fuisset contentus f Lives of Cbancellors, vol. i. cb. v. officio divini juris multo decenlius quam 44 EEIGN OF RICHARD I. Chap. I. After tiis fall, Walter Hubert, who, from being a poor boy, educated out of charity by Eanulfus Hubert, de Glanville, had reached the dignity of ^/cauter°^ Archbishop of Canterbury, had the secular Justicfa'r'*'^ officc of Chief Justiciar likewise betowed upon him. From the rolls of the Curia Eegis still extant,* and fi'om contemporary chroniclers, I am enabled Caseof*^' *^ Si"^6 an account of the manner in which William Hubert, while Chief Justiciar, dealt with a with-the- ' in . Long-Beard, demagogue, who lor some time gave great disturbance to his government. William Fitz-Osbert, a citizen of London, being bred to the law, is denominated " legis peritus," although he possessed but a very small portion of learning ; he was of a lively wit, and surpassing eloquence ; and he is the earliest instance recorded in England of a man trying to raise himself by popular arts. His stature being mean, he endeavoured to give importance to his looks by nourish- ing his beard, contrary to the custom of the Normans. Hence he was generally called " Willy am-with-the-longe- herde." Although of Norman descent, he pretended to take part with the Anglo-Saxons, and to be their advo- cate. The dominant race settled in London had a town of their own, " Ealdormannabyrig," still known as the Aldermakbury ; while the rest of the city was inhabited by the oppressed natives. Long-heard first distinguished himself by speaking at the Folkmotes, which were still * The Rolls of the Curia Regis held — exhibit what the world cannot else- before the Chief Justiciar, from the 6 where show, the judicial system of a Richard I., 1194, have been published by great and powerful nation running the Record Commissioners. Sir Francis parallel in development with the social Palgrave. in his Introduction to them, advancement of the people whom that says, in very striking language,— "Com- system ruled." The Rolls of the Curia paring these records with the commen- Regis are not so interesting as might tary furnished by the Year Books, and, have been expected, as they for the most lastly, opening the volumes of the Re- part merely s ate the names of the par- porters properly so called, we could — if ties, the nature of the action, the plea, human life were adequate to such a task and the judgment. A.D. 1193. WALTER HUBERT, CHIEF JUSTICI Alt. 45 allowed to be held fur layinpj on assossmcnts, although not to assist in making laws as in f( inner times. Not succeeding so well as he expected in obtaining the applause of tho mob, ho suddenly became a great courtier, and tried to gain the favour of Cceur de Lion by pretending that he had discovered a treasonable plot, into which his elder brother, Kichard Fitz-Osbert, had entered. Having appealed him of high treason before the Curia Regis, he swore that, at a meeting to consider of a further aid to pay the King's ransom, he had heard the appellee say, " In recompense for the money taken from mo by the Chancellor Avithin the Tower of London, I would lay out forty marks to purchase a chain in which the King and the Chancellor might be hanged together. Would that the King might always remain where he now is ! And, come what will, in London we never will have any other king except our mayor, Henry Fitz- Ailwin, of London Stone." The appellee pleaded not gutlty ; and, availing himself of his privilege as a citizen of London to defend himself by compurgation, many respectable persons came forward to attest their belief in his innocence; and he was acquitted, Lonijheard complained bitterly that Hubert, the Chief Justiciar, had decided the cause corruptly ; and, returning to the patriotic side, he now contrived, by inveighing against Norman oppression, to raise an insurrection against the Government, 52,000 citizens enrolling themselves as his adherents. He likewise called a folkmote in St. Paul's Churchyard, and here delivered a forcible and capti- vating discourse to the assembled people, inviting them to adhere to him steadily as the protector of the poor and the vindicator of their ancient rights. For some time he set the Government at defiance ; but, his popu- larity rapidly declining, Hubert, the Chief Justiciar, sent a body of troops into the City to apprehend him. After a slight skirmish, he was obliged to take refuge 46 KEIGN OF KICHAED I. Chap. I. in the church of St. Mary-le-Bow, and he retired to the lofty spire, in which he proposed to stand a siege. The Archbishop, having in vain sent him a summons to " come out and abide the law," thought that he might use a freedom with his own church which would have been sacrilege in a layman, and directed that the struc- ture should be set on fire. Longheard was obliged to abandon his stronghold, and, attempting to escape, he was secured, bound with fetters and manacles, and carried to the Tower of London. Here an extraordi- nary sitting of the Aula Eegis was held; and the " proceres," or more wealthy citizens of London, being called in as a jury, or as assessors, they advised that he should be condemned to instant death. Sentence was immediately pronounced, and executed with great bar- barity. Stripped naked, and tied by a rope to a horse's tail, Longheard was dragged over the rough streets and flinty roads to Tyburn, where his lacerated and almost lifeless carcase, after the infliction of many cruelties, was hung in chains.* Hubert thus acquired a temporary triumph ; but his violation of the right of sanctuary, and the outrage he had committed on a church of uncommon sanctity, caused great scandal, and after- wards led to his own fall. The clergy, as a body, took up the matter, partly from religious feeling, and still more from envy towards the Archbishop ; and the monks of Canterbury in particular complained to the Pope that their Archbishop? acted as a Justiciar, sitting * Rot. Cur. Regis, vol. i. 69. 95. retyke called With-the-Longe-Berde was Hoveden, 668. 765. Neubrigensis, 557. drawen and hanged for heresye and 562. Diceto, 691. M. Paris, 181. Ger- cursed doctryne that he had taughte." vastus, 1591. Knyghtfjn. 1412. Sir Fran- From this it would appear that the Arch- cis Palgrave, in his Introduction to the bishop had attempted to give a religious Rotuli CurlEe Regis, quotes an authority turn to the aiTuir, and excuse his own which I have not seen, "Annals of sacrilege by imputing heresy to his London contained in Liber de Antiquis victim. Legibus, MS.," describing " how the He- A.D. 110<;. FITZrETER, CHIEF JUSTICIAR. 47 as a judge in capital cases — whercl^y he not only hroke the canons forljidding ecclesiastics to meddle in affairs of blood, but was so entirely engrossed in secular pursuits that all his ecclesiastical duties were entirely neglected and cast aside. Tliey concluded their accusa- tion with a statement how, "contrary to all the privi- leges and immunities of Holy Church, ho had violated the sanctuary of St. Mary-le-Bow, whence WiUiam-with-the- Loud-Berde was forcibly taken, condemned to death, and hanged on the tree." The Pope addressed a mandate to Eichard, requiring him, as he tendered his soul's health, to remove the Archbishop from the Justiciarship. This would have been quite enough to satisfy the peti- tioners ; but, to the great mortification of the hieiarchy, his Holiness furthermore enjoined the King thenceforth to abstain from employing any prelate in secular affairs, and he addressed a concurrent mandate to the prelates strictly prohibiting them from accepting employments so uncongenial to their station in the Church. The King obeyed, and Hubert was deposed from the Chief Justiciarship ; but the general re- po^ from gulation produced very little fruit ; for the tldai-shi^p. grasping Archbishop contrived to obtain a high civil office in the next reign, and ecclesiastical ambition soon became more rampant in England than it had ever been.* King Eichard appointed, in Archbishop Hubert's place, Geoffrey Fitzpeter, a powerful Baron, with great possessions both by inheritance Fuzp^cr, and marriage ; and, like Glanville, well skilled ^^clar"^"*' in the laws and customs of the realm. He had acted as a Justice of the Forest, as a Justice Itine- rant, and as a Puisne Judge in the Aula Eegis.f He • Lives of Chancellors, vol. i. ch. vi. from the payment of scntage and other Gervasius, 1614. Hoveden, 779. M. a-ssessmems, and in the entry recording Paris, 193. the fact he is described as "resident at + On this account he was exempted the E.Kchequer." — ifad. Exch ii.390. n. 48 EEIGN OF KING JOHN. Chap. I. was at the same time slieriff of the united counties of Hertford and Essex, in which he held many manors. His military talents were likewise distinguished. The contemporary chroniclers inform us that, as soon as he was appointed " Proto- Justiciarius Angliae," he led a powerful army against the Welsh, and entirely defeated the restless Gwenwynwyn, who had besieged the Eno-lish garrison placed by William de Brause in Maud's Castle. Three thousand seven hundred of the enemy are said to have been killed in the conflict, and the single Englishman who fell is said to have been killed by the erring shaft of a fellow-soldier.* On the death of Eichard I., Fitzpeter was continued in his office of Chief Justiciar by John, and A.D. 1199. ,. . i^- -1 X- was very active m executing the measures oi the Government, as well as in the administration of justice. " At the same time he appears to have joined in the King's amusements, as a payment of five shillings was made to him, ad ludum suum. In 11 John there is a curious entry on the Great Eoll of his fining in ten palfreys and ten hawks, that the King of Scotland's daughter might not be committed to his custody ; but he was excused the palfreys. He was, no doubt, famous for his choice of hawks, for which he seems to have had an expensive taste, if we may judge from his having purchased one from the King at the extravagant price of four tunels of wine." j Withal he must have been a hon vivant, for we are told that he paid a penalty for breaking the canons of the Church by eating flesh on fast days. I However, neither by the great nor the agreeable qua- lities which he possessed could he long retain A.D. 120 . ^^^ favour of the capricious tyrant now on the * Hoveden, 780, 781. Gervasius, 164, Documents, 272, 275. Madd. Excheq. i. 165. R. de Diceto, 703. 462. Rot. de Fin. 6 John, 243. t Foss's J\idges of England, vol. ii. 64, J Rot. Mis«. 14 John. Cole's Dec. cites 1 Rot. de Praest. 7 John. Cole's 248. A.n. 1202. FITZPETER, CHIKF JUSTICIAR. 49 throne ; and, having in vain remonstrated against the course of policy which produced such di.sasters, he re- signed his office. Till the year 1213 he remained in a private station. Then he was reappointed, at the request of the Barons, in the hope that he might put an end to the confusion and misery in which the kingdom was involved. All ranks submitting willingly to his sway, he had wonderful success in restoring order and the due administration of justice, and every one was de- lighted except the infatuated John, who grieved to see himself crossed in his love of tyranny. Unhappily, this able Chief Justiciar died suddenly in the following year. When the King heard of his death, ho laughed loudly, and said, with a profane oath, " Now I am again King and Lord of England !" * A contemporary historian thus sounds his praise : — " He was the chief pillar of the state, — being a man of high birth, learned in the law, possessed of great wealth, and closely connected with all the chief nobility by blood or friendship. Hence the King dreaded him above all other mortals. He steadily ruled the realm. Bixt, after his decease, England resembled a ship tossed about in a storm without a rudder." f Shakspeare, in his drama of King Joiix, introduces this Chief Justiciar as one of the dramatis personcE, and gives us a trial before the Aula case of Eegis, the King himself being present in i^*iage"J. person. This was what the lawyers call a Faucon- , . . . bridge. " legitimacy case," the action being brought to recover the lai-ge estates, in Northamptonshire, of the * " Accepto vero de morte ejus nuncio, natibns songnine vel amicitla confoede- Rex cachirinando dixit: ' Per podes Tio- rams. Unde Rex Ipsum pne omnibus mini, nunc primb sum Rex et Uominus mortalibus sine delectione fonnidabat : Angliaj.'" — ^f. Par. in ann. 1214. ipse enim lora repil gubernabat. Unde t " Erat autem firniissima Regni co- post ojus ol)itum, facta est Anglla quasi lumna ; ntpote vir pcnerosus, legum in tempostate navis sine gubernaculo." peritus, tbesauris, reditihas et omnibus — M. Paris. bonis Instauratus, omnibus Angliie Mog- VOL. I. E 50 EEIGN OF KING JOHN. Chap. I. late Sir Robert Fauconbridge, Knt., which were claimed by the plaintiif, as his son and true heir, on the ground that an elder brother who had got possession of them was the son of Richard Cceur de Lion. The trial is represented as having been conducted with great fair- ness ; for the doctrine was admitted, " Pater est quern nuptiae demonstrant," subject to the exception of the absence of the husband extra quatuor maria, and it was satisfactorily shown that at the time to which the eldest son's origin must by the laws of nature be ascribed, while Lady Fauconbridge was in England, old Sir Robert was employed upon an embassy in Germany. Much weight was given to the evidence of the Dowager Queen, Eleanor, who declared that the defendant had " a trick of Coeur de Lion's face," that she " read in his composition the tokens of her son, and that she was sure she was his grandame." So, by the advice of Lord Chief Justice Eitzpeter, judgment was given for the plaintiif; while the defendant, kneeling before the King, rose Sir Richard Plantagenet.* In right of his wife, this chief of the law became Earl of Essex; and the earldom was enjoyed by his descendants till 1646, when it became extinct by the death of Robert Devereux, Earl of Essex, the great parliamentary general, without issue.| John's intervening Chief Justiciars, Simon de Pate- shull, Eustace de Fauconberg, Richard de Mucegos, Walter de Crespiny, and Saherus, Earl of Winchester, did not gain much celebrity either by their administra- tion of the law or by their military exploits. When Fitzpeter died he was succeeded by Peter de Rupibds,| * King John, Act I. Scene I. This his use of legal phraseology, which no scene corroborates the supposition that mere quickness of intuition can account Shakspeare, either before he left Strat- for. ford or on his coming to London, had t Dug. Bar. 1.703. See Roger de AVen- been employed in an attorney's office, dover, cxi. 49-273. He is uniformly right in his law and in j Sometimes called " Des Roches." A.D. 1221. PETER DE RUPIBUS. 51 who seems to have enjoyed great admiration in his own time, although ho has not been mnc-h known by posterity. Ho was a native of Poictou, I'[j*ug * "' and distinguished himself as a stout soldier in the wars of Eichard I,, by whom he was knighted. Although, by his education and habits, better qualified to command an army than to preside over a diocese, yet, being liked by King John, who did not stand on such niceties, he was made P>ishop of Win- ,.„. . .7 . ^■^- 1204. Chester, and afterwards Chief Justiciar.* His . ' 1 . 1 1 •*•"■ 1213. elevation caused much envy, which he was at no pains to soften ; and on this occasion he remained but a short time in office, although he showed . ^-^^ '2H. vigour and ability. t His great rival was " . . . A.D. 1216. Hubert de Burgh, who contrived within a year after his elevation to supersede him, and to hold the office of Chief Justiciar till the death of King- John, Peter de Eupibus, however, was again in favour at the commencement of the next reign, and was appointed tutor to the infant Sovereign, Peter de who became very much attached to him. He favour with was employed at the coronation to consecrate a.d"?22i.' his royal pupil ; and, being restored to his office of Justiciar, he was first minister as well as supreme judge. However, he increased the ill-will which prevailed against him by advising the resump- tion of grants of the domain and revenues of the Crown which the King, with a boyish levity, had lavished upon his courtiers ; and he made himself still more unpopular by betraying such a partiality for his • This commission is still ext-int : Ideo vobis mnndamas quod el tanquam " Rex Arcliii-piscopis, &c. Constitiiimiis Justic. ncstro Anglije inteiidentes sitls et Justitiarium nostrum Angliie P. Win- rcspondentes. Pat." &c. ton. Episcopum qnamdiu nobis placu- f " Oiu nnn dunivit in officio: pru- erit ad custodiendum loco nostro tfrram dens autcm et potens." — Sjxl. Gloss. 340 nostram Angliie et pacem regni nostrl. E 2 52 REIGN OF HENRY III. Chap. I. countrymen, the Poictevans, that they engrossed almost every place of honour or profit. About this time sprung up in England that jealousy of foreigners, and that disposition to despise them, which have ever since actuated the great mass of our countrymen. The Nor- mans had been highly popular at the Court of the later Anglo-Saxon Kings. Having conquered the country, they long regarded all of Anglo-Saxon blood as helots, while they treated Frenchmen and Italians who came here in quest of preferment as equals. But, after the loss of the Continental possessions which had belonged to the Kings of England, our nobles of Norman extrac- tion began to consider themselves as Englishmen, and there was a rapid fusion of the two races into one nation. The intercourse of the inhabitants of this island with the Continent was very much lessened, and the prejudices as well as the virtues of islanders gathered strength among them from generation to generation. Peter de Eupibus excluded all who were born in Eng- land from employment, and treated them with con- tumely, after the fashion of the Justiciars of the Con- queror and his sons. By preferring a foreigner to a piece of ecclesiastical preferment which was coveted by the famous Eoger Bacon, then one of the King's chaplains, he incurred the enmity of that j)hilosopher, who took every opportunity, both in his sermons and in private conversation, to set the King against him. It is related that on one occasion Pioger asked Henry " what things a prudent pilot in steering a ship was most afraid of?" and Henry answering that "Eoger himself oiTght best to know, as he had himself made many voyages to distant parts," Eoger replied, " Sir, he who steers a trireme, and he who steers the vessel of the state, should, above all things, beware of stones and rocks, or ' Petrse et Eupes.' " Hubert de Burgh, his old rival, took advantage of the combination against A.D. 1233. HUBERT DE BURGH. 53 tho favourite, and contrived afr;ain to turn him out from tho place of Chief Justiciar, and to become his successor. Peter do Eupibus, no-w yielding; to tho passion of the age, took the cross, ami found no diilieulty in ^j, 1.227. obtaining a di.spensation to bear arms in so He takes the pious a cause, although wearing a mitre. He is said to have fought valiantly in Palestine, but we have no particulars of his single combats, or the num- bers he killed in the general meUe* After an absence of several years ho returned, and all the affection of his royal pupil towards him was revived. He again had the patronage of the Court, and again he yielded to the besetting sin of preferring his countrjnnen. " Naturales," says M. Paris, " curiae sutu ministros a suis removit officiis, et Picta- venses extraneos in eorum ministeriis surrogavit." He even carried his insolence so far as to declare publicly that " the Barons of England must not pretend to put themselves on the same footing with those of France, or assume the samo rights and privileges." f The consequence was, that the English Bishops combined against him with the English Barons, and a law was passed, to which the King most unwillingly gave the royal assent, " That all foreigners holding office under the Crown should be banished the realm." They went so far as to declare " that if the King did not immediately dismiss his foreigners they would drive both him and them out of the kingdom, and put tho cro-rni on anotlier head more worthy to wear it."± Peter made '' ^ . . A.D. 1233. a stout resistance, but, owing to the jealousy of his spiritual brethren, ho was excommunicated and obliged to fly. • Siielman, wlio had examined all the ejus auspicils gesta snnt feliciter."— chronicles, is obliged to say in general Uloss. p. 346. terms, " Exacto munere Tcrram S:uiciam f M. Paris, 265. crucc-signatus proficiscitur. Multa illic J Ibid. 265. 54 REIGN OF HENRY III. Chap. I. He went to Eome to appeal against the injustice which had been done him. Here his military- battle for prowess stood him in good stead. Finding the Pope. Pope Gregory IX. engaged in war, he put himself at the head of his Holiness's army and gained a great battle. In consequence, he was not only ab- solved from excommunication, but ordered to be rein- stated in his bishopric. Accordingly he returned to England, and was received in solemn procession by the monks and clergy of his cathedral. At the last stage of his career he devoted himself wholly to his spiritual duties, and, in the odour of sanctity, he died, His'dauii'. ^^ ^^^ episcopal palace at Farnham, on the 5th of June, 1238. He was buried in the north aisle of Winchester Cathedral, where is still to be seen a mutilated figure representing him in black marble, with a mitre on his head, but without a sword by his side. Although he had gone through so many adventures, founded several religious houses both for monks in his own diocese and for pilgrims at Joppa, and filled such a space in the eyes of his contemporaries, he is now only mentioned in the dry chronicles of the Bishops of "Winchester or of the Chief Justiciars of England. His rival still makes a conspicuous figure in English history. Hubert de Bqrgh had the advan- Bui'gh*'^^ tage of being born in England, although, like all the nobility of the time, he was of foreign extraction. William Fitzadeline, his father's elder brother, had been Steward to Henry II., and, accompanying that monarch into Ireland, established there the powerful and distinguished family now repre- sented by my friend the present Marquess of Clan- ricarde. Hubert, afterwards the famous Justiciar, was early left an orphan, and was very slenderly provided for, but he received from nature the highest gifts both A.P. 1238. HUBERT DE BURGII. no of person and understanding, and, through the care of his maternal rehitions, he was carefully educated not only in all martial exercises, but in all the learning of the ago. Ho gainetl some distinction by serviny tender heart, but who is made to say, when ^ *^' solicited to rid the usurper of the " serpent in his way," " He shall not live ;" and who deliljeratcly and seriously makes preparations for putting out the poor young Prince's eyes with hot irons.ij: According to true history, the Chamberlain always showed kindness to Arthur, and never on any occasion pandered to the evil inclinations of John. Yet he enjoyed the faA-our of this capricious tyrant, and was constituted by him Warden of the Marches of Wales, Governor of the Castle • One of the earliest notices of him in Therefore I will be sudden, and de- our records is, that he was surety to the spatch." Crown for Petrus de Maillai, who agreed . . ,. .1 «•. r 1. j ,„.„ , .. V, u J •„ And, aft«'r the fit of compassion had con- to pay 7000 marks, "pro habenda in , ,. ,. .u jj l 1- . ,, o,. Tj V, .J- j„ quered him, he thus addresses the uxorem ^ sabellam filiam Roberti de ' . ' Turnehara cum jure suo," &c. — Mad. £ic/i.ii.211. .. Well, see to Uve: I wiU not touch t Rot. Chart. 1 John, 30. 36. jljine p^pg : Hubert exclaims a«We, and therefore p^r an the treasure that thine uncle sincerely— o^ga . " If I talk to him, with his Innocent Y't I am sworn, and / did purjoose, prate twy. He will awake my mercy, which lies With this same very Iron to bum them dead: out." A'ihi/ J'o/m, act iv. sc. i. 56 REIGN OF HENEY III. Chap. I. of Dover, and Seneschal of Poictou. He was likewise sent by him as ambassador to France, and he negotiated a peace between the two kingdoms. In the midst of these high employments, he condescended to act as Sheriff of several English counties, being responsible for the preservation of the.peace, and for the due collec- tion of the royal revenues within them. In the controversies which arose between John and the Barons, Hubert remained faithful to his master, but gave him good advice, and tried to instil into him some regard for truth and plighted faith. Being present with him at Kunymede, he prevailed upon him to sign the Great Charter, and he afterwards sincerely lamented the violation of its provisions. Though praised warmly by historians for his open and straightforward conduct, I am afraid that he was seduced into duplicity and intrigue by his desire to obtain the ofSce of Chief Justiciar, the darling object of his ambition. He professed much friendship for Peter de Eupibus, but he is suspected of having tripped up his heels in the end of the year 1215, and to have taken an unfair advantage of the unpopularity under which this prelate then laboured. He was now ap- pointed Chief Justiciar, but had little en- A.D. 1215. . joyment in his elevation. The kingdom was in a state of distraction from internal discord, and its independence was threatened by the invasion of a French army. He gallantly defended Dover Castle against Prince Louis, and gained a considerable vic- tory over a French fleet in the Channel. The ad- ministration of justice, however, was long entirely suspended, insomuch that Hubert had never been installed in the Aula Eegis, when his functions were determined by the King's miserable death in the Castle of Newark. For the first three years of the new reign, the A.D. 1224. HUBERT DE BURGH. A.D. 1219. office of Chief Justiciar was supersctled by the ap- poiutment of the Earl of Tembroke, tlio ^^^^^^_^ ^.,^^ Earl Marshal, as Protector of the realm, with absolute power. On the death of tliat nobleman, Hubert was restored to the office of Chief Jus- ticiar, and there was an apparent reconcilia- tion between him and Peter de Eupibus, who was in- tnisted with the education of the young King.* The wily Poictevan, availing himself of his influ- •^ ' c> ^ ^ [I ]221. once over the mind of his pupil, by-and-by had his revenge, and, once more Chief Justiciar, he engrossed all the powers of the Crown. Iluljert retired from Court, and prudently " bided his time." Perceiv- ins: the odium into which his rival had fallen, o . A.D. 1224. ho formed a confederation of nobles and churchmen against him, and compelled him to seek for safety by taking the cross, and setting off for the Holy Land.f • M. Paris, 24T-251. Wavcrley, 183. Gal. Armor. 90. t Dr. Lingard gives, from the contem- porary chroiiiclos, tho following graphic account of " an event which established the authority of Hubert, and induced his rival to banish lilniself Irom tlie island nnder pretence of making a pilgrimage. Among the foreigners enriched by John, was a ferocious and sanguinary ruflDan named Fawkes, who held the castle of Bedford by the donation of that monarch. At the assizes at Dunstable, he had been amerced for several misdemeanors in the sum of 3000^ : but, instead of sub- mitting to the sentence, ho waylaid the judges at their departure, and seizing one of them, Henry de Crinbrook, confined him in the dungeon of the Mstle. Hu- bert willingly grasped the opportunity of wreaking his vengeance on a partisan of the Rishop of Winchoster. The King was induced to invest in person the for- tress of this audacious rebel ; and the clergy spontaneously granted him an aid from themselves aud their free tenants. Two towers of wood were raised to such a height as to give the archers a full view of the interior of the Ciisile ; seven military engines battered the walls with large stones from morning till evening ; and a machine, termed a cat, covered the sapiKTS in their attempts to undermine the foundations. Fawkes, who had re- tired into the county of Chester, had per- suaded himself tliat the garrison would be able to dofeml the castle for twelve niontlis. Hilt the barbican was first taken by assault; soon afterwards the outer wall was forced, and the cattle, horses, and provender, in the adjacent ward, fell into the hands of the victors : a breach was then made in the second wall by the miners; and the royalists, though with considerable loss, obtained possession of the inner ward : a few days later the sappers set fire to the props which thej' had placed under the founda- tions of the keep ; one of the angles sank deep into tho ground, and a wide rent laid oi)en the interior of the fortress. The garrison now despaired of success. 58 EEIGN OF HENEY III. Chap. I. For some years Hubert exercised despotic sway in „ , ^ , England. He was created Earl of Kent, Hubert de » . , , , ' Burgh ap- and, in the vain hope of perpetuating his Justiciar for powcr, he obtained a grant for life of the office of Chief Justiciar, which hitherto had always been held during pleasure. Moreover, he usurped a similar appointment to the Chief Justiciar- ship of Ireland. When without a rival, it is admitted that he con- ducted himself honourably as well as prudently. He displayed a knowledge of the law, and a zeal to do justice to all suitors who came before him, for which he had not hitherto had credit ; while he preserved tranquillity at home, and raised the consideration of England with foreign nations to a pitch unknown since the death of Coeur de Lion. " Multa bene in re judiciaria," says Matthew Paris, "multa strenue in militia gessit."* The only grave act of misgovernment imputed to him was the annulling of the Charter of the Forest, — a concession which was most reasonable, and which had been passionately claimed both by the nobilitj'" and the people.f However, Hume doubts whether this act was done by his advice, characterising him as " a man who had been steady to the Crown in the most They planted the royal standard on the bench, he was, like other JusticiariJ, tower, and sent the women to implore always ready to exercise a vigour be- the King's mercy. But Hubert resolved yond the law when in the field. In the to deter men from similar excesses by 15th year of Henry III., hearing that the severity of the punishment. The the Welsh had committed great out- knights and others to the number of rages, especially about Montgomery, he eighty were hanged; the archers were marched thither, and, having taken many sent to Palestine to fight against the prisoners, he struck off their heads and Turks; and Fawkes, who now surren- sent them to the King; which so pro- dered himself at Coventry, was banished voked Llewelyn, Prince of Wales, that, from the island, together with his wife raising all the power he could, he reta- and family."— See M. Paris, 270. Dunst. Hated on the English, setting fire even 142-145. Mew Rym. 175. Rot. Claus. to the churches, in which crowds who 639. Annal. AVig. 486. had taken sanctuary were burned. * M. Paris, ad ann. 1232. But though f M. Paris, p. 232. very scrupulous while sitting on the A.D. 1232. HUBERT DE BUEGII. 59 difficult and daiigeroiis times, and who yet showed no disposition in the lieight of his power to enslave or oppress the people."* But, while others were obliged to surrender valuable possessions wliicli they held under royal letters patent, he was annually enriched by new grants of forfeitures, escheats, and wardships; and those Avhom he dis- obliged declared that he was guilty of much greater rapacity than his banished rival, or any of his prede- cessors. The temper of the times may be estimated from the derisive title of " Hubert's Folly " given to a castle ineffectually erected by him to repress the incursions of the Welsh. f An unsuccessful expedition into France, in which he accompanied the King, in- flamed the public discontent, and precipitated his fall. It so happened that at this very time Peter de Ku- pibus returned to England from Palestine, having been preceded by exciting reports of the gallantry which he had displayed in assisting to recover the holy sepulchre, while his old enemy had been enjoying ease and amassing riches at home. All now predicted the fall of the obnoxious minister. By the subtle advice of his Hubert re- enemies, instead of any violence being of- from ins fered to him a great council was called, chief i'us- and an order was made upon him to answer t^^'jlps't""'^ for all the wardships which he had held, all sanctuary, the rents of the royal demesnes which he had received, and all the aids and fines which had been paid into the Exchequer while he filled the office of Chief Justiciar. Seeing that his ruin was determined upon, he took to sanctuary in the priory of Merton. Being immediately removed from his office of Chief Justiciar, he asserted that he held the appointment for life, by a grant under the Great Seal ; but he was • Hist, of Eng. ii. 159. t Roger de Wendover. Iv. 173. 60 EEIGN OF HENEY III. Chap. I. told that the patent was illegal and void ; and Stephen de Segrave was appointed his successor, at the instiga- tion of Peter de Eupibus, who at present preferred the enjoyment of power without the envy of office. Proclamation was now made through the City of London hy a herald, that " all manner of persons who had any charge to make against the ex-Chief Justiciar were to come forth, and '^they should be heard." He was not only accused of treason to the King in the negotiations he had carried on, hut of poisoning some of the nobility, of abstracting from the royal treasury a gem which had the virtue of ''rendering the wearer invulnerable, and of gaining the King's favour by sorcery and enchantment. It was first resolved to drag him from his asylum by force, and, with this view, the Mayor of London and a body of armed citizens were sent to storm the priory ; but the King, being wai'ned by the Archbishop of Dublin of the sacrilege about to be committed, agreed to allow the accused to remain there unmolested for five months, that he might prepare for his trial. Hu- bert, finding himself no longer watched, left his sanc- tuary and proceeded towards Bury St. Edmunds to visit his wife ; but the Government, afraid of his intentions, despatched a body of 300 horsemen with orders to arrest him and convey him to the Tower of London. Being in bed when he heard of their approach, he fled naked to the parish church of Boisars, and, on the steps of the altar, with the consecrated host in one hand and a silver cross in the other, awaited the arrival of his pursuers. Unmoved by the sanctity of the scene which they beheld, they seized him, placed him on horseback, tied his feet under the horse's belly, and proceeded with their captive towards the metropolis amidst the derisive shouts of the populace. The Bishop of Winchester, either respecting the privileges of the Church, or afraid A.D. 1232. HUBERT DE BUROH. Gl of excitinp; sympathy in favoxir of a depressed rival, caused orders to be given that the prisoner shoukl be rephiced on the steps of the altar from which he had been taken ; and the Sheriff of Essex was charged under penalty of death to prevent his escape. To render this impracticable, a deep moat was dug round the sacred building in which ho was confined, and on the fortieth day hunger or despair compelled him to surrender himself. After a short confine- ment in the Tower, he was brought before fined i^the a council of his peers assembled in Cornhill. Lm^jou"*^ The accusations against him being read, he declared that he should make no defence, and that ho placed his body and his lands and goods at the King's pleasure. Sentence was passed, whereby, being al- lowed to retain his patrimonial inheritance and the lands he had gained by marriage, ho was to forfeit all the rest of his property to the Crown, and was to be kept in safe custody in the Castle of Devizes till he should enter the order of the Knights Templars. The following year he was dreadfully alarmed by the news that the custody of this castle had been transferred to a retainer of Peter de Eupibus ; and, that he mia-ht not fall into the hands of his mortal enemy, he dropped from the castle wall into the moat, in the obscurity of the night, and again took sanctuary in a neighbouring church. The guard hastened after him with lights and clubs, and finding him pros- trate before the high altar with a cross in his hands, carried him back again into stricter custody in the castle. The Bishop of Salisbury, within whose diocese this outrage had been committed, threatened to excom- municate all concerned in it. In accordance with the respective obligations and privileges of the parties, the Kino- restored Hubert to the church from which he had been forced, but at the same time ordered the 62 EEIGN OF HENRY III. Chap. I. Sheriff of Wiltshire to besiege him there, and to starve him to death unless he chose voluntarily to surrender. In this desperate condition, two of the soldiers who had formerly served under him took compassion upon him, furnished him with some food, clothed him in a military habit, and, convoying him into Wales, put him under the protection of the Earl of Pembroke. Afterwards, at an assembly of the Barons held at West- ^^^g minster, the King preferred articles of im- peachment against him, accusing him of usurping the office of Chief Justiciar, of treason, of rapacity, and of trying to prevent the King's marriage with the daughter of the Duke of Austria by saying that the King squinted, had a leprous appearance, and was not qualified for wedlock.* By his answers he denied all these charges, insisting that he had been appointed Justiciar by King John at Eunymede, and that he had never exercised the powers of that office without due warrant.! Finally, a compromise was effected by which he sur- rendered four of his strongest castles, and released all right to the office of Chief Justiciar, — receiving a pardon for all offences, and being allowed to retain all his other possessions. He now became disgusted with public life, and he spent the rest of his days in seclu- Death of sion. After repenting of his many irregu- Hubertde larities, and receiving the consolations of Burgh. T.' ., °.T ^ -. religion, he quietly expired at Banstede, m Surrey, on the 12th day of May, 1243. His body, being brought to London, was honourably interred in the church of the Black Friars in Holborn ; a house to which he was a benefactor, having given it, amongst other things, his inn at W^estminster, which became the town residence of the Archbishops of York, * " Prorsus inutilis amplexibus aliciijus ingenuse mulieris." — M. Paris. t 1 St. Tr. 14. A.D. 1243. HUBERT DE BUKGII. G3 ami afterwards the royal palace of Wliitehall. lie was niarriftl four times ; all his wives being high bom, and the last no less a person than tlie daughter of William the Lion, King of Scotland. This marriage took place at York when ho was Chief Justiciar the second time, the Archbishop of Canterbury performing the ceremony, and the King and many of the nobility assisting at it.* His descendants, after flourishing for some generations, became extinct in the male lino. He was not an author like Glanville, but ho is supposed to have patronised Bractou, who, as a jurist, was the great glory of this reign The most touching panegyric ever pronounced upon H\xbert was by an Essex blacksmith, who, being re- quired to forge fetters to secure him when they were carrying him prisoner to the Tower of London, ex- claimed, " Do what you please with me ; I would rather die than put fetters on him. Is he not the faithful and magnanimous Hubert, who has • so often rescued Eng- land from the ravages of foreigners, and restored England to the English— who served his Sovereign so firmly and faithfully in Normandy and Gascony that he was sometimes compelled to eat horse-flesh, his very enemies admiring his constancy — who preserved Dover, the key of England, against the King of France and all his power — and who secured our safety by subduing • Spelman, 340. See Dugdale's Ba- pable of solemnizing the marriage." The roiiage, and Hasted's ' History of Kent.' defence made by Hubert was. " that he Kotwithstanding the open and solemn kiiew nothing of any treaty for marrjing manner in which this marriage was cele- the Princess of Scotland to Henry or brated, it was afterwards made an article Richard; that the Princesses were to be of charge against him, "that whereas bestowed In marriage by the King of William. King of Scots, had delivered " England, with the approbation of the two of his daughters to John, King of nobility, and that in consequence the England, umler condition that the eldest eldest was so bestowed on him, Hubert." should be married to Henry, Prince of " H the controverted article existed," England, or, In the event of his death, to says Lord Hales, " we must admire the Richard, Earl of Cornwall, yet that effrontery of Hubert ; if not, the igno- Hubert himself had t.iken hor to wife ranee or malice of his accusers." — while Henry was under age, and inca- Annals of Scotland, i. 170. 64 REIGN OF HENRY III. Chap. I. our enemies at sea ? May God be judge between bim and you for sucb unjust and inbuman treatment."* After tbe rivalry of Peter de Eupibus and Hubert de Burgh bad been terminated by tbe ruin of botb, there began tbe struggle between the Crown and the Barons, which was not terminated till Simon de Mont- fort fell in the fatal battle of Evesham, more than thirty years afterwards. During this period, several reached the dignity of Chief Justiciar who were neither distinguished as judges, nor gained much political or military renown ; and whom we shall, therefore, quickly despatch. Hubert's immediate successor was Stephen de Segrave, who had previously been a com- Stepben de ^ , . ' • • n • j n * Segrave. mon justiciar, or puisne judge, m the Aula A.D. 1232. Uegis.-j- He was a rare instance, in those days, of a man being in a high civil station who was of obscure origin ; but this was accounted for by the cir- cumstance of his having begun his career as a church- man. He was then knighted, and showed extraordinary prowess in the field. Last of all, he addicted himself to jurisprudence. When he had gained the object of his highest ambition, he cared little for the interests of tbe suitors, he recommended arbitrary measures to the King, and he enriched himself by rapacity. Having obtained a dispensation from the Pope to marry, notwithstanding his religious vows, he made good use of his privilege, for he had successively two wives of the distinguished fami- lies of Le Despencer and Hastings ; and the Earls of Berkeley, the Earls of Egremont, and all the branches of the house of Howard, are descended from him.J * See Roger de Wendover, Iv. 247- humili genere oriundus, strenuitate sua 2.')3; Rot. Liberat. 10; Rot. Pat. 11; ultimis diebus adeo ditatus et exaltatus Roger de Wendover, iii. 293-380 ; Rot. est, ut inter primos regni reputatus, pro Claus. i. 319-322. Justiciario habitus est, et omnia fere f Madd. Exch. i. 63. 65. regni negotia pro libitu disposuit, sed i See Spelman, 341. He is thus pithily semper plus sui amicus quam reipub- despatched by M. Paris: — "In juven- licai." tute sua de clerico factus Miles, licet de A.D. 123o. HUGH BIGOD. CHIEF JUSTK'TAR. 65 Next came Hugo do Pateshulle, who had the re- putation of integrity as a judge, but no- a.d. 1235. thine: is said of his learning or ahilitv. ^I^T' Ile resigned his uifice on being elected Bishop tidars. of Lichfield and ( "uventry. Uf his successor, •*•"• ^^^'• Gilibertus de Segrave, still less is known, for the in- dustrious Spelnian is obliged to say, " Ego vero nihil de eo roperi :" and all that is related of I'hilip Level, who followed, is, that when he was thrust out of office by the Barons he died of grief.* Concerning John Maunsel, whom the Barons substituted as Chief Justiciar, I have already told all that is memoral)le, as he had before filled the office of Lord Chancellor.| We now come to a Chief Justiciar pronounced to have been " a distinguished soldier, and a.d. 1259. learned in the law of the land." J Hugh Bigod was a younger son of Koger Bigod, Earl of Norfolk ; and, although he declined to take orders, he afforded an extraordi- chief jus- nary instance 01 a laj^man acquiring a pro- found knowledge both of the civil and municipal law. At the same time he was initiated in military exercises, and was considered a gallant and accom- plished knight. He was apiDointed governor of the Castle of Pickering ; and he accompanied the King in an expedition against the Welsh, as well to assist in negotiation as in the field. But he was persuaded by his elder brother, the famous Roger Bigod, the fourth Earl of Norfolk of that name, who headed the Barons against Henry, to join their party ; and at the parlia- • " Jndicio Baronum ejicitiir e.x of- stituerunt 8ibi Justlciarium Jlilitem 11- flcio, an. 125!?, et sequenti anno pro lustrem et legum terr« peritiim Hu- mentis amaritudine diem obilt." — J/, gonem Bigod, qui officium Justiciarlw Paris. strenue piTapens, nullatenus p^nulttat t Lives of Chancellors, i. ch. vii. jus regni vacillare." — .1/. Paris. J " Nobtles firmius confuederati con- VOL. I. F 66 EEIGN OF HENKY III. Chap. I. ment held at Oxford, when the famous " Provisions " were aa;reed to which vested the royal an- June 1258. o V thority in a small oligarchy, he was con- stituted Chief Justiciar and the Tower of London was committed to his charge. Notwithstanding the violent manner in which he was appointed, he administered justice with great impar- tiality as well as vigour ; and it was said that there had not been such a judge in England since Eanulfus de Grlanville. With Eoger de Thurkolby and Gilbert de A.D. Preston, two very learned puisnies , as his 1159, 1160. companions, he made a circuit through every county in the kingdom, putting down disturbances, punishing malefactors, and justly deciding civil rights. He cashiered Eichard de Grey, who had been constable of Dover Castle, and warden of the Cinque Ports ; and he was as little moved by the piteous looks of the poor as by the scornful glances of the powerful.* For some reason not satisfactorily explained to us, while universally applauded, and while the party by whom he had been elevated was yet triumphant, he resigned his office when he had held it little more than a year. Some say that the Barons had resolved to make it an annual office ; some, that they were jealous of his popularity ; and others, that he would no longer be associated with them in their scheme to usurp the prerogatives of the Crown. He afterwards again took the King's side, and fought for him in the battle of Lewes. When the rout began, he fled the field, but was accompanied by the Earl of Warrenne and other brave knights. Notwithstanding the proofs they had given of their courage, they did not escape the satirical notice of Peter Langtoft, who thus described their flight : — * "Angliam de comitata in comita- pauperum, nee potentum flaccldus su- tum circuit, omnibus justitiam lance percillo." — SeeSpel. 341. «quissima distribuens : vultu nee motus A.D. 1258. HUGH LE DESPENCER. 07 " The Erie of Warenne, I wote, he escaped over the se. And Sir Hugh Blgotc als with the Krle fled he." When the royal authority was restored by the victory at Evesham, he was again appointed to the government of Pickering Castle ; but the oflfico of Chief Justiciar, such as it had been, was thought to be too powerful to be given to any subject, and it could not well be ofl'ered to him shoni of its splendour. We have no particulars of the closing scene of his life, but it must have occurred soon after, as we know, from the Fine Kolls, that on the 7th of November, 1206, his son Koger did homage to the King at Kenilworth as heir to his lands.* On the resignation of Hugh Bigod, the Barons ap- pointed Hugh le Despencer as his successor. Huph le r*- This Justiciar was celebrated more for his chieTjis- bravery than for his learning ; but if he was "*='"• not always quite impartial as a judge, he at least had the merit of being always true to his party. He was said to have been descended from Robert le Despencer, steward to William the Conqueror; but as the royal steward for the time being was called, long after the Conquest, " Le Despencer," there is a doubt as to the time when the name of the office passed into a sur- name.t and whether his ancestor was not some noble who had held it more recently. Antiquaries dispute even as to the immediate ancestors of Hugh, although they all agree that he was of noble blood. We do not know much of his training, and he is first mentioned by historians as the companion of Eichard, King of the Eomans, the brother of Henry III., when that prince • Rot. Fin. ii. 448. at the English court — of which we have t In Scotland the ofBce retained -its a proof in the office of taking charge of Saxon appellation, and hence we have the royal table-linen having given rise to the illustrious family name of Stewart the name, so distinguished in our day, or Stuart; although, generally speaking, of ^'apier. French was spoken at the Scotch as well aa 68 REIGN OF HENRY HI. Chap. I. went into Germany in pursuit of the imperial crown. A.D. 1257. On his return to England he joined the A.D. 1258. Barons, who were in arms against the King ; and when they carried the " Provisions of Oxford," he was one of the twelve commissioners in whom the exercise of the royal prerogative was vested. In the course of the following year, he went as an Itinerant Justice into several counties, and gave entire satisfac- tion to the ruling powers, although not to the suitors. When he was elected Chief Justiciar, there were soon heavy complaints against him ; and his partiality or incapacity very much strengthened the reaction in favour of the royal authority. At last, Henry, having received from the Pope a dispensation from his oath to observe the " Provisions of Oxford," assembled a Parliament at Westminster, in which he had a large majority. Here Le Despencer being ordered to deliver up the Rolls of Chief Justiciar* at the same time that the usurping Chancellor was ordered to deliver up the Great Seal, they joined in saying that they could not do so without the consent of the Barons, by whom they had been appointed ; but the King, with general Jul- i'>6i approbation, dismissed him, and appointed Philip Basset Chief Justiciar in his stead. Hugh le Despencer, maintaining that he had not been lawfully superseded, still claimed to be entitled to perform the functions of the office, and, the tide again turning in favour of the Barons, the King was obliged to recognise him as Chief Justiciar. The following year, open hostilities being resumed, he placed himself at the head of a strong military force, destroyed the houses of Philip Basset and the loyalist * At this time the Chief Justiciar Cancellario nuper institutis aBaronibus, seems to have held in his hand certain sigillum suum siln reddi, et rotulos de parchment rolls as the emblem of his Justiciario sibi niandavit restitui." — See office: " Res voeatis ad se Justiciario et Spel. 341. A.D. 1263. rillLir BASSET. 69 noliles in Westminster, imprisoned tho King's judoes' even pillaged foreign merehants, and extorted large sums of money by cmelties on the Jews. In the battle of Lewes our Chief Justiciar commanded one of the wings of the army, and with his own hand took prisoner Marmaduke de Twenge, whose ransom was fixed at 7UU marks. Immediately after, no fewer than six strong castles were placed under his govern- ment, and he had a grant of 1000 marks for his better sustentation in the office of Chief Jiisticiar, He was likewise apjiointed one of the six commissioners to treat with the Tope's legate and the King of France, as me- diators relative to the reformation of the state. He continued to do the judicial business of the office regularly till again called into the field, to make head against the formidable force assembled under Prince Edward for the re-establishment of the royal authority. When the two armies came in sight of each 4th Aug. other, near Evesham, the Earl of Leicester, ''*'^' in consideration of his age and infirmities, advised him to leave the field, but he refused to disgrace ^^^^i^ ^j his ermine by such poltroonery ; and the two H"^'> '^ were slain together, manfully making head against mighty odds, and refusing quarter which was oflfered to them. Hugh le Despencer is to be considered the last of those remarkable men who, for above two centuries, exercised conjointly the functions now belonging to the first judge in the land and to tho commander-in- chief of the forces. Such a combination (as was seen in the Komau republic) certainly has a powerful tendency to develop the highest faculties of the mind, and produces characters of greater eminence than are to be found when tho sword and the gown are per- manently disunited. The son and grandson of the last of the Chief 70 REIGN OF HENRY III. Chap. I. Justiciars acquired a most iinenvialole celebrity in the reign of Edward II. ; but he is now honourably re- presented by the present Baroness le Despencer, and some of the most illustrious of the nobility of England are descended from him. We need not be long delayed by Philip Basset, the Philip Bas- rival Chief Justiciar. He was of the great set Chief Jus- family of that name which I have before men- ticiar. , '' tioned, and which occurs much more fre- quently than any other name in our judicial annals. He began his political life in opposition, being associated with the Barons under De Montfort ; but he soon went over to the Court, and became a special favourite of the feeble Henry. He was enriched by grants of various wardships, forfeitures, and shrievalties ; was constituted governor of the castles of Oxford, Bristol, Corff, and Shireburn, and managed all the affairs of the King of the Eomans. He had a very uneasy place as Chief Justiciar, but there was an in- A.D. 1262. ■■• . . . terval while he enjoyed the title when he actually was allowed to perform the duties of the office, and during a short absence of the King in Gascony he acted as Eegent of the kingdom.* The royal cause de- clining, his house in Westminster was burned by his rival, and he was obliged to fly for safety. At the battle of Lewes he fought bravely in the royal cause, and he resisted the victorious rebels sword in hand, until he fell from loss of blood, when he was taken prisoner along with his Sovereign. He was then placed in Dover Castle, and kept a close prisoner there in the care of a younger son of the Earl of Leicester, till he was liberated on the final overthrow of that chieftain. It was generally thought that he would be restored to his office of Chief Justiciar; but the resolution had * still he went through the routine dates on the Fine Poll are signed by him, business of his office, and all the man- — Hot. Fin. ii. 278-385. A.D. 1266. SIMON DE MONTFORT. 71 been taken to reform it, and, till this oltject slioiild bo fully accomplished, tlie more pnident course seemed to be to fill it with a man who was well acquainted with the administration of justice, and who never could be formidable as a military leader. However, the ex- Chief Justiciar continued to enjoy the royal favour. He was one of those appointed to carry into .1 T^. «,-.■■ •■ „ April, 1266. execution the " Dictum of Kenilworth, and he continued a member of the King's Council till his death. This must have haiipcned in the r. !• . 1 T^ • ■. 1 1 -I H's death. autumn oi 12 / 1 ; for m the I inc Eoll, under date 2nd November, 56 Hen. III., there is an entry of an order for the constable of the Castle of Devizes to give it up to Elyas de Kabeyn, "because Philip Basset, his lord, is gone the way of all flesh." He is reckoned by some antiquaries the last of the true Chief Justiciars, as they consider Hugh le De- spencer an usurper of the office between the battle of Lewes and the battle of Evesham, and they hold that its character was entirely altered before the conclusion of this reign.* I wish that I could have been justified in concluding the list of Chief Justiciars with Simon de Montfort himself: a life of him might be whether - . . , . . Shiion de made most interesting and instructive, for Montfort was not only did he achieve wonderful adventures justiciar? by political intrigue and by military skill, and meet with striking vicissitudes of fortune, but he is to be honoured as the founder of a representa- tive system of government in this country, and the chief framer of that combination of democracy with monarchy and aristocracy which has served as a model for all modern nations among whom freedom has • Dngdale says : " Of those who had and Common Pleas having afterwards the ofiBce of Justiciarlus Anglia;, I'hilip one in each court." — Or. Jur.p. 20: and Basset was the last, the King's Bench see SpeL Gloss, p. 342. 72 REIGN OF HENRY m. Chap. I. flourished. I might make a pretence for an attempt to narrate his exploits and delineate his character, for he has been introduced among the Chief Justiciars ; and three records are quoted, bearing date respectively 10th May, 7th June, and 8th June, 1265, in which the Earl of Leicester is styled "Justiciarius," which, possibly, might mean " Justiciarius Angliae," the title by which Bigod, Le Despencer, and Basset were sometimes de- signated when they undoubtedly filled the highest office in the law. But an attentive examination of these records will show that he had only sat on a special commission : there is no proof that he ever was appointed to the office of Chief Justiciar, or ^cted in it ; and there is no period to which his tenure of the office can be ascribed, except when, with his entire concurrence, it was filled by Hugh le Despencer, his partisan and dependant. When he called his famous parliament, with representatives from counties and boroughs to mingle in legislation with the hereditary nobility, he might easily have assumed the office of Chief Justiciar if he had been so inclined ; but, on the contrary, he seems, with other constitutional improve- ments, to have meditated its abolition or reform, and there is great reason to believe that he suggested the new judicial system which was fully adopted and established in the succeeding reign, and under which justice is administered at this day in England.* After the Barons had been eftectually crushed, a par- tial trial of this system was made during the remainder of the life of the feeble Henry, with the sanction of his energetic son, who, before setting forth for Palestine, established a wise system of administration — a foretaste of his own happy reign. From the confusion intro- duced by the Barons' wars, and the consequent * Spelman, 342; Brady's England, i. Cull. ii. 378; Lives of Chancellors, i. 650, 651; Rot. Fin. ii. 405; Lelaud's cli. is. A.D. 12G5-68. HENRY DE BEACTON. 73 defective state of our records of that era, a douLt lias been started whether the office of Chief Justiciar was filled up between the death of Hugh le Dcspcncer in August, 1265, and March, l'J(38, when IJobcrt de Bnis was ajipoiutod to it. There is, 1268. however, strong reason to believe that in }'*'"'7'^^ this interval it was held by Henry de Chief jus- Bracton, one of the greatest jurists who ever lived in any age or any country. He was, undoubt- edly, a Justiciar at this time : in the commissions in which his name is mentioned no one had precedence of him ; and we have the authority of Lord Ellesmere and others, who have carefully investigated the subject, for concluding that he was Chief Justiciar. It would be a matter of the highest interest to know how a man so enlightened and accomplished was formed during the very darkest period of English history, when the civilisation introduced by the Normans' seemed to be entirely obliterated, and when the aiQalgamation of races in this country had not yet begun to produce the native energy and refinement which afterwards sprang from it : but while we have the pedigree, at least up to the Conquest, and a minute account of the military exploits, of those who were employed in desolating the world, we have no infor- mation whatever of the origin, and very little of the career, of a man who explained to his savage country- men the benefits to be derived from an equitable system of laws defining and protecting the rights of every class of the communit}-, — who, drawing his sentiments from the rich fountain of Eoman jurispru- dence, expressed them in the Latin tongue with a purity seldom reached by the imitators of the Augustan age, and who was rivalled by no English juridical writer till Blackstone arose five centuries afterwards. He is said, on uncertain authority, to have studied at Oxford, 74 EEIGN OF HENRY III. Chap. I. and tliere to have obtained the degree of Doctor of both laws. We know that he had taken holy orders, for, by- letters patent, granting to him a house during the minority of the heir, he is designated " dilectus clericus noster." He is supposed to have practised in the common law courts of Westminster, and he certainly must have had great practical experience in juridical procedure, as well as a profound scientific knowledge of jurisprudence in all its departments. But we are not clearly informed of any part of his professional career till we find that, in the year 1245, he was appointed a justice Itinerant for the counties of Nottingham and Derby, and in the following year for the northern counties. Such employment was com- patible with his continuing to practise as a barrister during the terms, and his name does not appear in the AD 1250 ^^^^ Rolls till four years later. He then certainly was a Justiciar or Judge of the Aula Eegis, and so he continued for many years.* The probability is, that he was promoted to be Chief Justiciar in 1265, soon after the battle of Evesham, and that he held the office till he died in the end of the year 1267. All notice of him in the Eolls then ceases, and we certainly know that another Chief Justiciar was appointed in the beginning of 1268. We have no information respecting his descendants, although the greatest nobles in England might have been proud to trace him in their line. His memory will be preserved as long as the law of Bracton'8 England, by his work, " De Legibus et Con- i,egu>us^et suetudinibus Angliaj." It must have been diSbus'"^" fiiiished just about the time when he is sup- Angiiie." posed to have been Chief Justiciar, for it contains references to changes in the law introduced * He is sometimes named Bratton, identical Henry de Bracton of whom we and sometimes Bretton, in tlie Rolls ; are treating. but these are distinctly proved to be the A.D. 1265-68. HENRY DE BR ACTON. 75 shortly before, and it takes no notice of the statute of Murll)ritl«;e, wliich ]);is.sef"came Earl of Carrick. by father. — See Dalrymple's Annals, i. 198, being furced by the heiress of that great 204. domain to marry her; but I^onl Hales * R. Feed., vol. ii. 545. clearly proves that it was Ilobcrt the f See Dalrymple's .\nndls,i. 215-2 13. VOL. I. O His death. ® 82 EEIGN OF EDWARD I. Chap. I. When Edward I. determined in favour of Baliol, influenced probably less by tlie arguments A.D. 1292. -j^ j^-g favour than by the consideration that Decided from the weakness of his character he was likely to be a more submissive vassal, Eobert 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 Loch- maben, where he died in November, 1295, in the seventy-second year of his age. While resident in England he had married Isabel, His descend- daughter of Gilbert de Clare, Earl of Glou- '^°'^- cester, by whom he had several sons, Robert, the son of Eobert the eldest, became Robert L, and one of the greatest of heroes. The descent of the crown through him to the Stuarts is, of course, uni- versally known. The family of the Chief Justice is still kept up in the male line by the descendants of his younger son, John, among whom are numbered the Earl of Elgin, the Earl of Cardigan, and the Marquess of Aylesbury.* * See Dug. Chr. Ser. Rot. Fin. ii. 79. 545 ; Dug. Bar. Coll. Peerage. A.D. 1272. JUDICIAL INSTITUTIONS. 83 CIIArXER IL THE LIVES OF THE CHIEF JUSTICES FROM THE ACCESSION OF EDWARD I. TO THE APPOINT.MENT OF CHIEF JUSTICE TRE- SILIAN. We now arrive at the ajra when our judicial insti- tutions were firmly established on the basis . . A.I>. 1272. on which, with very little alteration, they have remained to the present day. Although the Aula Eegis had existed down to the conclusion of the reign of Henry III., and c;ises of peculiar im- portance or difficulty were decided before the Chief Justiciar, assisted by the great officers of state,* it had gradually ceased to be a court of original jui-isdiction and it had been separating into distinct tribunals to which diiferent classes of causes were assigned. Edward I., our JusTiNiAX, now not only systematised j„^jpjj^, and refonned the principles of English iuris- institutions of l!xlw. 1. prudence, but finally framed the courts for the administration of justice as they have subsisted for six centuries. " In his time the law did receive so sudden a perfection, that Sir Jlatthew Hale does not scruple to affirm that more was done in the first thirteen years of his reign to settle and establish the distri- butive justice of the kingdom, than in all the ages A remnant of the Aula Regis sub- prevailed — that both in civil and crimi- Blsted to our own time in the " Exchc- nal cases the opinions of the majorit}- of qtier Chamber" Into which cases of great the judges in the Exchequer Chamber Importance and difBculty continued to should over-rule the opinions of the be adjourned, to be argued before all the majority of the judges of the court in judges. The practice of judges reserving which the cases originated, and in which points of criminal law — arising before formal judgment was to be given — them on the circuit. I consider as having admile of no other solution, had a similar origin. The rule which G 2 84 EEIGN OF EDWARD I. Chap. II. since that time put together."* The Aula Eegis he utterly abolished as a court of justice ; and he decreed that there should no longer be a Justiciar with military and political as well as judicial functions. " The Court of our Lord the King before the King himself," or " Court of King's Bench," was constituted. Here the King was supposed personally to preside, assisted by the first common law judge, denominated " Chief Justice, assigned to hold pleas in the Court of our Lord the King before the King himself," and by other justices or " puisne judges." This was the supreme court of criminal jurisdiction, and was invested with a general superintendence over inferior tribunals. Magna Charta had enacted that civil actions should be tried before judges always sitting in the same place, so that the suitors might not be compelled to follow the King in his migrations to the diiferent cities in his do- minions ; and the section of the Aula Eegis which had subsequentl}^ sat at Westminster now became the " Court of Common Pleas," having a Chief Justice and Puisnies, with an exclusive jurisdiction which it still preserves over " real actions,"- — although, by ingenious fictions, other courts stripped it of much of its business in the trial of " personal actions." The management of the estates and revenues of the Crown had been early intrusted to certain members of the Aula Eegis, who were called "Barons of the Exchequer." They now formed an entirely separate tribunal called the " Court of Exchequer," with the Lord Treasurer and the Chan- cellor of the Exchequer to preside over them — being in strictness confined merely to fiscal matters in which the Crown was concerned, but gradually usurping both legal and equitable jurisdiction between subject and subject, by countenancing the fiction that the suitors were the King's debtors, or the King's ac- * 4 Bl. Com. 425 ; Hale's Hist. C. L. p, 162- A.i). 1272. RALril DE IIENGIIAM. 85 cmintants. The Chancellor, from being the sixth in preeedeuco of the great ollicers of state, was now advanced to be the first, and he was intrusted with the power of doing justice to the subject where no remedy was provided by the common law. The ap- pellate jurisdiction of the Aula Regis was vested in the great council of the nation now called the Parlia- ment, and, on the division of the legislature into two chambers which soon followed, remained with the Lords Spiritual and Temporal, who had tlie Judges as their assessors. All juridical knowledge was long monopolized by the clergy ; but while the civil and common law continued to be cultivated by them exclu- R''irij<>e sively, a school of municipal or common law ciiiff justice had been established for laymen, who gra- of King's dually formed themselves into societies called a.Zv'^s. " Inns of Court," devoting their lives to legal pursuits. From the body of professional men thus trained, Edward resolved to select his Judges ; and he appointed Ealpii de Hengiiam Chief Justice of the King's Bench, and Thomas de Wetland Chief Justice of the Common Pleas, allowing them a salary of only sixty marks a year, but adding a small pittance to purchase robes, and stimulating their industry by fees on the causes they tried. The De Ilenghams had long been settled at Thetford in Norfolk ; and the head of the family, ^^.^ . . towards the end of the reign of Henry III., had gained distinction as a knight in several passages of arms, had been a Judge in the Aula Regis, and had acted as a Justice in Eyre. Ralph, a younger son of his, having a greater taste for law than for military exercises, was, while yet a boy, placed in the m^ process office of a jirothonotary in London, and not '° '""^ ^'>^'- only made himself master of the procedure of the 86 REIGN OF EDWARD I. Chap. II. courts, but took delight in perusing Glanville, Bracton, and Fleta, which, in those simple and happy times, composed a complete law library. Without the clerical tonsure, he became a candidate for business at the bar ; but such was the belief, that the characters of causidicus and clericus must be united, that, to further his success, he was obliged to take holy orders, and he was made a canon of St. Paul's.* His reputation in Westminster Hall was now greater than that of any man of his time ; and while he was little more than thirty years of age, on the pinciple of detur digniori he was made Chief Justice of the Court of King's Bench, and received the honour of knighthood. He fully answered the expectation which had been ^ , formed of him for industry, learning, and Law books , , . . . composed by ability. His great object was to establish a regular procedure in his court calculated to expedite suits and to prevent fraud. He began with publishing a collection of writs which he had carefully made and revised, known by the name of Eegistrum Brevium, and pronounced by Lord Coke to be " the most ancient book on the law."f Next, he composed an original work, which is still extant, and im.^^^*" quoted in Westminster Hall as the " Summas of Lord Chief Justice Hengham." It is written in Latin, and divided into two books, called " Hengham Magna " and " Hengham Parva," giving instructions with regard to the mode of conducting actions, particularly writs of right, of dower, and of assize, from the prsecipe to the execution of the judgment. It continued in MS. till the reign of James I., when it * It was to conceal tbe want of clerical f 4 lust. 140 ; 3 Rep. Preface, vii. He tonsure, that the serjeants-at-law, who means, of permanent authority in the soon raonopolized the practice of the common law; which eailier treatises Court of Common Pleas, atiupled the coif, could not be considered, or black velvet cap, which became the badge of their order. A.D. 1278-86. RALPH DE IIENGHAM. 87 was printctl and published with the following title- page :— "Radulphi de Hesgiiam EnwARDi Regis I. Capitalu oliin JuftUiarii SUMM.E. Magna Hengham et Parva vulgo nuncupata", nunc prinium ex vet. iXAd. MSS. lucom prcKlcunt. LoxDiicr. BibUopdlaruin Corpori excudilur. M.DC.XVI." The Latinity is barbarous even for a lawyer, and the arrangement not very good. From a quaint analogy to the Mosaic account of the creation, he supposes the work of conducting a siiit to be divided into six days ; and he describes what is to be done each day — in " casting an essoin," " demanding a vicAv," Justices Itinerant. Sir Walter Ilopton 2000 „ ) Sir William Saham .... . 3000 „ Robert Lithbury 1000 „ Master of the Rolls. Roger Leicester 1000 ., TT T> ,/>«« f Escheator and ^'^r^^^ray 1000 .. | Judge for the Jews. And, what is more remarkable, Adam dc new money, besides jewels and silver §tratton, a certain Clerk of the Ct>urt, plate." was Cued no less than 32,000 marks of 90 EEIGN OF EDWARD I. Chap. II. amount of these not always being well defined, the taking of them was liable to be misconstrued into ex- tortion or bribery. In after-times the current Bpecting\?m of public Opinion ran strongly in his favour ; timef'^ and in Kichard III.'s reign it was said " the only crime proved against him was, that, out of mere compassion, he had reduced a fine which he had set upon a poor man from 13s. 4:d. to 6s. 8d." * The tradition prevailing in the reign of Elizabeth was, that from the fine upon the Chief Justice himself a clock- house was built at Westminster, furnished with a clock to be heard in Westminster Hall.f Upon this story, however, Blackstone remarks, " that (whatever instances may be found of the private exertion of mechanical genius in constructing horological machines) clocks came not into common use till an hundred years afterwards, about the end of the 14th century." | The ex-Chief Justice bore his misfortunes with mag- nanimity, and gradually recovered the con- fidence both of the King and of the public. About eleven years afterwards we find him one of the Justices in Eyre for the general perambulation of the forests ;§ and near the conclusion of this reign he was employed to negotiate a treaty with the Scots, the King having failed in all his attempts to rob them of their independence. || * Year-Book, M. 2 Richard III. 10. was entered into the roll. And almost t 3 Inst. 72 ; 4 Inst. 255. in the like ca-e in the reign of Queen + Comm. vol. ill. 410. Lord Coke was Elizabeth, Sir Robert Catlyn, Chief Jus- mpointed Chief .Justice of the Court of Com- stored to mon Pleas;* and lie continued to fill this pi!,ymeiit. office with much credit till his death in the ?307"^"'^'' end of the following year. He was buried "'^"lyo']'- in St. Paul's Cathedral, where a marble mo- nument was erected to his memory with the following rhyming epitaph : — " Per versus patet hos, AnglorQ qd jacet hlc flos; Legiini qui tuta dictavit vera statuta. Ex Ilengha diet' Kadulph' vir benedict' ." He may be truly considered the father of the Common Law Judges. He was the first of them who never put on a coat of mail; and he has had a long line of illustrious successors contented with the ermined robe. Of the contemporary Judge, De Wkyland, I find nothing related prior to his appointment of Chief Justice of tho Common Pleas. He like- chief just?ce wise was esteemed a great lawyer, and he ^Jn pS.' long gave high satisfaction as a magistrate. He several times acted as Jtistice Itinerant, and was zealous in detecting and punishing criminals.f But un- fortunately, his salary being onlj^ sixty marks His con- a year, ho seems without scruple to have ^"'^• resorted to very irregular courses for the purpose of increasing his riches. \Vhen arrested, on the King's return from Aquitaine, conscious of his guilt, he contrived to escape . . . , . ,^ . {^ AD. 1289. from custody, and, disguising himself in the habit of a monk, he was admitted among friars-minors in a convent at Bury St. Edmund's. However, being considered a heinous offender, sharp pursuit He absconds was made after him, and he was discovered *" disgrace, wearing a cowl and a serge jerkin. According to • Dugd. Chron. Ser. 34. f iladd. Esch. ii. 66, c. 1 k. 92 EEIGN OF EDWAED I. Chap. II. the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. At the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. Still it would have been deemed sacrilegious to take him from his asylum by violence ; but the Lord Chief Justice pi-eferred surrendering himself to perishing from want.* He was immediately conducted to the Tower of London. Eather than stand a trial, he peti- tioned for leave to abjure the realm ; this favour was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the Crown. "j" Having walked barefoot and bareheaded, ment'and'^' with a crucifix in his hand, to the sea-side infamy in g^^ Dovcr, he was put On board a ship and after times. ' ^ ^ . . , deported to foreign parts. He is said to have died in exile, and he left a name often quoted as a re- proach to the Bench till he was superseded by Jeffreys and Scroggs.| * One account says, " He took upon the kingdom as unworthy to live in that him tlie habit of a grey friar, but, being state against which he had so much discovered by some of his servants, he offended." was watched and guarded, and after two Lingard says that " Weyland was months' siege, went out, forsaking his found guilty of having first instigated friar's coole, and was taken and sent to his servants to commit murder, and then the Tower." — See 4 Bloonifidd's Xorfolk, screened them from punishment " (vol.iii. 631. 270); but he cites no authority to siip- f The property forfeited by him was port so serious a charge : and the histo- said to have been worth upwards of rian on this occasion does not display his 100,000 marks, or 7O,000L, "an incredible usual accuracy, as he makes Weyland sum," says Blackstone, " in those days, Chief Justice of the King's Bench, ele- before paper credit was in use, and when vating De Hengham at the same time to the annual salary of a Chief Justice was the oflice of ' ' Grand Justiciary." only sixty marks." — Com., iii. 410. In a MS. chronicle in the Bodleian X Oliver St. John, in his speech in the Library, cited by Dugdale (Chron. Ser. Long Parliament against the Judges who 1288), there is this entry : " Tho. de decided in favour of ship-money, com- Wejland, eo quod male tractavit popu- pares them with the worst of their pre- Zum, ab officio Justiciarii amotus, exhas- decessors : — " Weyland, Chief Justice redatus, et a terra exiilatus." of the Common Pleas in the time of Speed gives a melancholy account of Edward 1. was attainted of felony for the sufferings of the English, at this taking liribes, and his lands and goods time, between the Jews and the Judges, forfeited, as appears in the Pleas of Par- " While the Jews by their cruel usuries liament, 18 Ed. I., and lie was banished had one way eaten up the people, the A.D. 1289. ROGER LE BRABA9ON. 93 The immediate successor of De TTcngham as Chief Justice of tlie King's Bench was Gilbkut de 'J'liouNrox, who, I make no doubt, was a J^T''""""" • ' Chiff Justice worthy man, Lut who could not have been '^f King's very distinguished, for all that I can find a.d. ii«9. respecting him is that ho was allowed a salary of 40Z, a year.* ITe was overshadowed, as some- times hapi)ens, by a puisne who sat by him, and who at last supplanted him. This was Eoger le BuABA90N,f who, from the part he took in {j^^blvon. settling the disputed claim to the crown of Scotli'.nd, is an historical character. Ilis ancestor, cele- brated as " the great warrior," had accompanied tho 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 lioutiers, Cottereaux, or Brahan^onsp Being rcAvarded with large possessions in the counties of Surrey and Leicester, he . A.D. 1291. founded a family which tlourished 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 ardour of his race for a desire to gain distinction as a lawj'er. He .Justiciars, like another kind of Jews, J Hnmo, wlio designates them " des- liad ruinefc'H»i, tory. which belongs to the lord, and the domi- 96 KEIGN OF EDWARD I. Chap. II. time for deliberation, and to consult the absent members of their different orders," Braba9on, after advising with the King, consented that they should have time imtil 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 1st day of June following was fixed for the ceremony of the recognition. Braba9on 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 favour, successively acknowledged him as their liege lord, and their example was followed by almost the whole of those who then constituted the Scottish Parliament. But this national disgrace was effaced by the glorious exploits of Wallace and Bruce ; and Braba9on lived to see the fugitives from Bannock- burn, and to hear from them of the saddest overthrow ever sustained by England since Harold and his brave army were mowed down at Hastings. When judgment had been given in favour of Baliol, Brabacon was still employed to assist in the AD 1293 . r J He "assists in plan which had been formed to bring Scot- ScoUaMto land into entire subjection. There being ?"?^i!'\. a meeting at Newcastle of the nobles of jurisdiction. o the two nations, when the feudatory King did homage to his liege lord, complaint was made by Eoger Bartholomew, a burgess of Berwick, that certain English judges had been deputed to exer- cise jurisdiction on the north bank of the Tweed. A.u. 1296. KOGIiR LE BRAI3AC0N. Edward rofcrrcd tli(> matter to BraLa(;oii and otlicr commissioners, commanding tliem to do justice accord- ing to the laws and customs of his kingdom. A peti- tion was then presented to them on behalf of the King of Scotland, setting fortli Edwartl's promise to observe the LiAvs and customs of that kingdom, and that pleas of things done there should not be drawn to exami- nation elsewhere. Brabacjou is reported thus to have answered : — " This petition is unncccssar}', and not to the purpose ; for it is manifest, and ought to be admitted by all tlie prelates and barons, and commonalty of Scotland, that the King, our master, has performed all liis promises to them. As to the conduct of his Judges, latelj' deputed by him as scrpEiuoR and piukct 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 jiromises when the Scottish throne was vacant, in derogation of his just sircerainete, bj' Buch promises he would not have been restrained or bound." 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 Braba^on and the other Judges, it was resolved tluit the respondent must stand at the bar as a vassal, and that, for his contumacy, three of his principal castles should bo seised into the King's hands.* Although historians who mention these events de- signate Braba9on as " Grand Justiciary," it is quite certain that, as yet, ho was merely a Puisne Judge ; but there was a strong desire to reward him ^ ^ joge for his services, and, at last, an opportune Ho is made A'acancy arising, he was created Chief Justice of tlicKing^s of the King's Bench. ^™*- Of his performances in this capacity wo know nothing, except by the general commendation of chroniclers ; for * Kym. il. 605, 615, G36. Rot. Scot.i. II, 16. VOL. I. , H 98 KEIGN OF EDWARD II. Chap. II. the Year-Books, giving a regular account of judicial decisions, do not begin till the following reign. The Court of King's Bench, still following the joerson of the sovereign, was, on one occasion, in Brahagon's time, held in Eoxhurgh Castle, then in the possession of the English; but we have no report of any of the pro- ceedings which came before it.* He was still employed in a political capacity ; and in the parliament held at Lincoln in the year 1301, he thus declared the reasons for calling it, and pressed for a supply : — " My lords, knights, citizens, and burgesses : The King has ordered me to let you understand that whatever he H^' ^T^'h ^^Ath. done in his late wars hath been carried on by the opening jo^^i' jo'i^t consent and allowance. But of late time, of the by reason of the sudden incm'sion of the Scots and pariiament. *^^ malicious Contrivance of the French, his Highness has been put to such extraordinary expenses, that, being quite destitute of money, he therefore desires a pecuniary aid from you ; and trusts that you will not offer him less than one fifteenth of your temporal estates." "Hereupon," says the reporter, "the nobility and commons began to murmur,']' and complained grievously against the King's menial servants and officers for several violent depredations and extortions." How- ever, the wily Chief Justice soothed them by making the King go through the ceremony of confirming the Great Charter and the Charter of Forests, and he obtained the supply he had asked for.:}: — Wo read nothing more that is very memorable of him during the present reign. § On the accession of Edward II. Braba9on was re- * Hale, Hist. C. L. 200. cheering was not by « hear ! hear ! " but t We are not told whether they ex- by " amen ! amen ! " claimed "oh! oh!" or what was the J 1 Pari. Hist. 46. prevailing fashion of interjectional dis- $ See 3 Tyrrell, 1?. sent. For centuries after, parliamentary A.n. 1307. WILLIAM HOWARD. 90 appointcil Chief Justice of the King's Bench,* unci he continued very creditably to fill the office gn, ju,y^ for eight years longer. lie was fated to ^^'^''• deplore the fruitless result of all his efforts to reduce Scotland to the English yoke,— liohert Bruce being now the independent sovereign of that kingdom, after humbling the pride of English chivalry. At last, the infirmities of age unfitting Brabatjon for the discharge of his judicial duties, he resigned his gown ; but, to do him honour, he was sworn a member of the Privy Council, and he con- tinued to be treated with the highest respect by all ranks till his death, which happened about , „. T TT • 1 His death. two years aiterwards. — lie Avas niarneu to Beatrice, daughter of John do Sproxton, but had by her only one child, a son, who died an infant. The Earls of Meath are descended from his brother Matthew. j Collins, in his " Peerage," which, generally speaking, is a book of authority, here introduces Sir William Howard as " Chief Justice of Eng- ?f Wiiiiam 1 1 )> 1 1 1 • • Howard, qu. land. Although he is so described under whether a his portrait in the window of the church at tice? Long Melford, in Suffolk,:}: I doubt whether he ever reached this dignity ; but, for the honour of the law, I cannot refuse to introduce him from whom flowed all the blood of all the Howards. The name was originally spelt Ha ward, and must have been of Saxon origin. His pedigree does not extend higher than his grandfather, who was a private gentleman, of small estate, near Lj'nn, in Norfolk. • He was sworn in before AValter Baron Chaworth.— See Grandeur of the Reginald, the Deputy Treasurer. — Dug. Liiw, p. 182. Chr. Sor. J He appears there in his judge's t His descendant, Sir William le Bra- robes, with these words, in ancient, baijon, was Vice-Treasurer of Ireland, bluck-letter characters: " Pray for the and died in 1552. An Irish earldom was pood state of William Haward, Chef conferred on the family in 1627, and in Justis of England." — Dug. Or. Jiir. 1831 the present Karl was created a peer p. 100. of the United Kingdom by the title of u 2 100 EEIGN OF EDWAED II. Chap. II. His father likewise was contented to lead a qniet life in the country, — intermarrying with the daughter of a respectable neighbour, and neither increasing nor diminishing his patrimonial property. But young William, heaving of the great fame and riches acquired by De Hengham and other lawyers, early felt an am- bition to be inscribed in their order, and was sent to study the law in London. There is no cer- tain account of his success at the bar, but we know that in the 21st Edward I. he was assigned, with seven others, to take the assizes throughout the realm, in aid of the Justices of both benches. The district to which he was appointed comprehended the counties which now constitute the Northern circuit (except Durham), with Nottingham and Derby, now belonging to the Midland. Four years after, he was appointed one of the Judges of the Common Pleas ; and on the accession of Edward TI. he was again sworn into the same office.* Our judicial records do not mention any higher distinction acquired by him ; and I suspect that the chiefship was only conferred upon him by flatterers of his descendants when they were rising to greatness. Nevertheless, he was certainly a very able and upright magistrate ; and, from his profits as a barrister, and his official fees, (his salary was little more than 30Z. a year,) he bought large possessions at Terrington, Wiggenhall, East Winch, and Melford, in Sufiblk. These were long the principal inheritance of the Howards, who, for several generations, did not rise higher than being gentlemen of the bedchamber, sherifis of Norfolk and Suffolk, governors of Norwich Castle, and commissioners of array, — without being ennolded. At last. Sir Eobert Howard, descended from the Judge's eldest son, married the heiress of Thomas Mowbray, Duke of Norfolk ; and * Dugd. Chron. Ssr. A.D. 1313. IIEXKY LE SCIJOrE. IQ] Eicliard III. conferrctl on John, tho son of this mar- riage, (tho famous " Jockey of Norfolk," who fought and fell at Bosworth,) the dukedom still cujuved, after repeated attiiiiders, by the eldest representative of tho family ; while many earldoms and baronies have been conferred on its junior branches. The next authentic Chief Justice of the King's Bench was Henry le Serope, the first who, by success in the law, founded a family, and was himself ennobled. Many of ancient lineage, like the Grand Justiciars, had held judicial oflices; and several, like Sir "William Howard, raised themselves to eminence, and left de- scendants afterwards enrolled in tho peerage. Henry le Serope, of an obscure origin, from emi- nence in tho legal profession sat in the House ""j."^ ^'^ of Lords as a Baron ; and great chancellors and warriors were pr( md to trace him in their pedigree. He was the son of William le Serope, a small 'squire, who lived at Bolton, in Yorkshire. Having studied at Oxford, he was transplanted, when very young, to London, to study the law in one of the societies then forming, which were afterwards denominated " Inns of Court." He was much distinguished for industry and ability, and, in the end of the reign of Edward I., gained great wealth and reputation as an advocate. In the second year of Edward II., he was made a Puisne Judge of tho Common Pleas ; and at the end of six years, while he still continued in the same oiBce, he was summoned to parliament not gu^n^on^ merely to advise, like the other iudges, but to to the iiousa 1 T ^ ^ r ^ of Lords. assent to, the measures to be brought foiAvard. It is a curious circumstance, that, although he took his scat as a member of the House, he did not receive a similar summons to any subsequent parliament.* * The- doctrine that " summons and is now fully established, and baa often sitting constitute an hereditary peerage," been acted upon ; but in early times the 102 EEIGN OF EDWAED II. Chap. II. Two years afterwards, he was made Chief Justice of tlie King's Bencli ; and he held the ofi6.ce, A.D. 1330. with high reputation, for ten j^ears, when he ^]"^f Jl?*'*:" was removed from it in the convulsions which of the King .s ., . Banch. marked the conclusion of this reign. But he was restored to the bench when Edward III. had estahlished his authority, as sovereign, by jmtting down his mother and licr paramour ; and he died in 1336, full of days and of honours. From him were descended the Lords Scrope of Bolton ; and his younger son, after being a great warrior, be- coming Lord Chancellor, established another branch of this illustrious house.* On his iirst removal he w^as succeeded by Henry de Staunton, who filled a greater variety of staumon judicial oflSces than any lawyer I read off Chief Justice in the annals of Westminster Hall. This of the King's it t j i Bench. extraordinary man was a younger brother of a respectable family that had long been seated in the county of Nottingham. He seems, when quite a boy, to have conceived a passion for the law ; and, to gratify him, he was sent to an inn of court, without having been at any university. His steadiness in juridical studies was equal to his ardour : and, while yet a young man, having served his " apprenticeship " with great credit, he reached the dignity of Serjeant, and was in great and profitable practice in all the courts. For nine years he was a Puisne Judge of the Common Pleas — from 1306 to 1315. He was then transferred to the Exchequer, being first a Puisne Baron, and then 1st June, Chancellor of the Exchequer. On the 1st of 1323. June, 1323, he was made Chief Justice of the King seems to have exercised tlie prero- of again summoning him, or of snmmon- gative of summoning any l^niglit to sit Ing his descendants after his death, in the House of Lords for a single par- * See Lives of the Chancellors, vol. i. liament, without incurring the obligation ch. xvi. ; Dugd. Bar. and Ch. Ser. J A.r.. 1324. HENRY DE STAUNTON. 103 King's Bench, ictaijiing Lis former place, wliicli he av.is to execute by deputy. In a few months, however, ho ceased to be a pluralist, and the Chancellorship of the Exchequer was given to the Bishop of Exeter.* Do Staxtnton remained Chief Justice of the King's Bench little more than a year, when he was AD 1324 made Chief Justico of the Common Pleas, which was the more profitable, and for several centuries afterwards was reckoned the more eligible, appoint- ment. f Finally, ho concluded his career as Lord Chief Baron of the Exchecpier — an office which I think ho must have accepted as an honourable retreat in his old age, as, although attended with little labour, it has always been the lowest chiefship, both in emohiment and rank. This ho held till his death. 1 IIo left no descendants ; and, having felt the want of early education, he bequeathed his fortune to the foundation of a college in the University of Cambridge. * " Rex omnibus ad quos, &c. Sciatis cellor of the Exchequer Is called Ilenry, quod cum dilectusClericusetfidelisnoster and in the other Hervey de Staunton; Jlenricits do Staunton Cancellarii Sciic- but, from the context, it is clear that the carli nostri de mandate nostro intendat names Henry and Hervey are applied to otiicio Capitalis Justiciarli nostri ad pla- the same individual. 1 may also add, clta coram nobis tencnda per quod dicto that there is a variance in the date of the ofTicio Cancolhirli ad jira-sens Intendere appointment of the Bishop of Exeter; non potest Custodiam Sigilli nostri Scac- the one record giving the -J'th cf Sept., carii pra;dicti Venerabili Patri W. Ex- and the other the ITtii, although it is oniensi Episcopo Thesaurario nostro evident that the one refers to the other, commisimus," &c. " Teste liege apud f " Jlcmorandum quotl die Jovis in Skorgill xxvij die Septembris. Per breve Vigilla sancti .Tacobi Apostoli. anno regis de private Sigillo." — Pat. 17. Ed. 2. p. 1. huj^is vicesimo incipiente, Hervicns de m. 9. et iterum, m. 16. Staunton pra;slitit sacramentum, coram " Dominus Rex mandavit AV. Exo- Venerabllibus patribus W. Archiepi- niensi Episcopo Thesaurario per breve scopo EboracensI Anglia; Primate thc- suum de prlvato sigiUo suo cujus data saurario W. Exonicnsi Episcopo Magistro est .ipnd Skergill xvij die Septembris hoc R. de Baldoclc CancelUirio Regi.<, et anno quod quia JTervicus de Staunton baronilnis de Scaccario et justiciarii d- CapltalisJusticiariusde Banco Regis, qui communi banco de bene et fideliter se liabuit custodiam Sigilli de Canc'>llar[ia] habendo In offlciis capltalis ju>ticiarii de hujus Scaccaril de ca;tcro .id custodiam banco prout nioris est." And at the same officii Canci-llar[li] intendere non po- time Robert de Ayleston was sworn test," &c. — Mich. Commun. 17 Ed. 2. ; Chancellor of the Exchequer. — Madi. Rot. i. 6. In these two records it Is Excli. observable, that in the one the Chan- J r>ug. Chr. Ser. ; Bcatsou. 104 KEIGN OF EDWARD III. Chap. II. Tlie following metrical history of him is given hy the poet Eohert Cade,* — duly celebrating his early legal proficiency, hut unaccountably omitting his highest official jDreferments : — Ballad on Chief Justice Staunton. " Sir William Staunton, Knight, was next, Dame Athelin was his wife. Sir Geoifrey Staunton, Knight, their heire. Both voido of vice and strife. " And Sir Henrie his brother was. Who gave himselfe to learne. That when he came unto man's state, He could the Lawcs discerne. " And in the same went forward still. And profited muche, I know. At Ynnes of Courte a Counsailer And Serjeant in the Lawe. " And in processe of tyme indecde, A Judge he came to bee In the Common Benche at Westminster Such was his highe degree. " A Baron wise and of great wealthe. Who built for Scholers gaine, Sainct Michaels house in Cambridge Towne, Good learninge to attaine ; " Which deed was done in the eighteenth yeare Of Second Edwards King, One thousande three hundred twenty foure. For whom they praye and singe. " In which said house the Stauntons may Send Students to be placed. The Founder hath confirmed the same It cannot be defaced. " This Lord Baron no yssue had. We cannot remember his wife. Nor where his body tombed was When death had cut off life." f * See Thoroton's History of Notting- hamshire. f He is frequently mentioned in con- temporary records, and must have been a very considerable person in his day, although now fallen into such obscurity. In the 8th Edward II., Hervicus de Staunton and others are directed to assess and levy a tallage on the City of London : 1 Eot. Pari. 449. And in 1320, 14 Edward II., reference is made to in- quests taken before Johannes de Insula, Hervicus de Staunton, and Adam de Lymbergh, " qua; sunt in Sccio : " 1 Eot. Pari. 372 a. In 1325, 19 Edward 11., it appears that Henry le Swan was tried at tlio Eire of London " darreine passe devant Sire Ilenr de Staunton' : " Eot. Pari. And in the Patent EoU, 3 Edward III., A.D. 1343. CHIEF JUSTICE TIIORrE. 105 Thcro was no other Chief Justice of much note till Sir Kobert Parnyng, who, for his great learn- ing and ability, was placed in the " marble Parny'ng!^ chair," and wlioiu I have already commerao- •*•"• '^'"'• •' A.D. 1341. rated in the Liv^es of tiik Cit.vxcKLLOUS.* After an obscure Chief Justice, called Sin Willi. vm ScOT,t came a very eminent but very unprin- cipled one, Sir Willi.vm he Thorpe, avIio -was a'^^u'/rpc"* at first supposed to be an ornament to his profession, but who brought deep disgrace upon it. From an obscure origin he rose to power and wealth, without being a churchman, — a very unusual occur- rence in those days; but the law was becoming, what it has since continued, one 'of the ties by which the middling and lower ranks in England arc bound up with the aristocracy, — preventing the separation of the community into the two castes of nolle and roturier, which has been so injurious in the continental states. Having with difficulty obtained an adequate edu- cation, soon after his call to the bar he got business and favour by singular zeal for his t^' ^^^J' y o Ills iirDfc;- clients and subserviency to his patrons. si"nuipro- (Tress • While of less than ten years' standing as a barrister, he received the high rank of King's Ser- jeant, and the following year ho was made Attorney General, and was knighted. He remained in this office five years, during which time he had the good fortune to gain the personal confidence of Edward III., who was in the habit of consulting him respecting the most expedient manner of managing the House of Commons, and obtaining suj^iilies to carry on the French war. In 1347 ho was elevated to the office of Chief Justice of the King's Bench, and he certain proceedings are reforrod to in an a Ics plcz le ditvie'pieretenirassignez." Inspe.ximus, as liaving taken place in — 2 Kot. Pari. 427. the 17tli Edward il., " devantSire Henry • Vol. i. cli. .\iv. de Staunton et sc-8 compaignons justices f ■L'ug. Chr. Scr. 44. 106 EEIGN OF EDWARD III. Chap. II. was for a time the King's principal adviser. On the A.I). 1347. premature death of Parnyng, the Great Seal Chief jiSt'ice ^^^ P^^^ ^^^'^ ^^^^ liands of men of little ex- of the Court perienco in business, and Lord Chief Justice Bench. Thorpe was intrusted with the domestic go- vernment of the kingdom. At the parliament held on the King's return after A D. 13-18. 'tl^6 glorious battle of Cresci, Sir William His addresses Thorpe was employed, in place of the Chan- Houses of cellor, to declare the causes of the summons ; ar lamen .. ^^^:|^ j^^ vory dextrously flattered the Com- mons by telling them that " it was the King's special desire to be advised by them respecting the mode of carrying on the war, and, next, how the peace of the nation might be better kept."* After grave deliberation, the Commons answered that " they were not able to advise any thing respect- ing the war, and, therefore, desired to be excused as to that point, — being willing to confirm and establish whatever the council and the nobles should determine thereupon. But as to better keeping the peace of the nation, their advice was, that in every county there should be six persons, of whom two to be the greatest men in it, two knights, and two men of the law, or more or less as need should be, and they to have power and commission out of Chancery to hear and determine matters concerning the peace. And because they had been so long in parliament, to their great cost and damage,! ^^^^Y n^ig^it have a speedy answer to their petitions, in order to get soon back to their own homes." On Thorpe's suggestion, the measure so recom- mended was promised, and hence our Justices of the Peace and Courts of Quarter Sessions. But, there being- still an unwillingness to vote an adequate supply, par- * During the Plaiitagonet reigns, there foreign, as well as domestic, policy, are frequent instances of the King con- + The session had lasted above a fort- suiting tlie Commons on questions of night. A.n. 1349. CHIEF JUSTICE THOKPE. 107 liinncnt was tlissolvetl, ami great pain.s ^vcre used in iiilluuiicing tlio elections fur the new one which was called. \Vheu it met, Chief Justice Thorpe again made the speech I)}' which the session was opened, and tried to rouse the indignation of tlie Com- mons by asserting that " the French had broken the conditions of the truce lately granted to them at Calais, and Avero preparing a puissant army where- with to invade the realm." He therefore urged that " they should bo armed betimes against the worst which might happen, and see that this Avar, Avhich was undertaken liy the advice and consent of the parlia- ment, might have a prosperous ending." A liberal supply was granted, and the Chief Justice speedily, in the King's name, pronounced the prorogation.* Although ho now seemed so powerful and pros- perous, disgrace and ruin were hanging over him. I'ar- liament again met in the following year, but, instead of opening it with royal pomp in the King's name, he stood at the bar of the H'^ i^ House of Lords as a criminal. He had been briUry. detected in several gross acts of bribery, for •which he was now impeached. The record of his trial is not preserved, and Ave have no particulars of the oftences laid to his charge. The common tradition is, that sentence of death Avas actu- guiuy: qu. ally passed upon him ; and Oliver St. John, Zal seX *^ in his famous speech on ship-money, in the ^e"^^,'*' reign of Charles I., says, — " Sir "William Thorpe, Chief Justice of the King's Bench in EdAvard III.'s time, liaA'ing of five persons receiA'ed five several bribes, which in all amounted to 100/., was for this alone adjudged to be hanged, and all his lands and goods forfeited." I cannot help thinking, hoAvever, that this • 1 Pari. Hist. U5-11S. 108 REIGN OF EDWARD III. Chap, II. is an exaggeration ; no treason was alleged against the Chief Justice, and, as mere bribery could A D 1350 . . not be construed into a capital offence by any known law, he coiild not have received such a sentence, unless under an act of attainder ; and there is no ascertained instance of such a joroceeding before the reign of Henry VIII. The entry in the Close Eoll, recording the appointment of a new Chief Justice, merely says, " Will, de Thorpe, Capitalis Justic. pro quibusdam maleficiis, &c., omnia bona terras, &c., foris- fecit."* It is possible that a capital sentence might have been pronounced; [and St. John, pretending to have seen the original record, says, " The reason of this record is entered in the Eoll in these words, ' Quia preedictus Willielmus Thorpe, qui sacramentum domini regis erga populum suum habuit ad custodiendum, fre- git malitiose, false et rebelliter, quantum in ipso fuit,' because that he as much as in him lay had broken the King's oath unto the people which the King had intrusted him withal. The next year, 25 Edward III., it'vv'as debated in parliament whether this judgment was leccal et nullo contradicente, it was declared to be just and according to the law ; and that the same judg- ment may be given in time to come upon the like occa- sion. This case is in point that it is death for any judge wittingly to break his oath or any part of it." Yet I suspect that the patriotic orator, inveighing against the Judges who had, contrary to their oaths, decided for the legality of ship-money, invented the capital sentence upon Thorpe, whose guilt he repre- sents as comparatively venial.f The delinquent cer- tainly did not suffer the last penalty of the law ; but, * Glaus. 24 Ed. III., in dorso, m. 4. Parliament passed the famous Statute of t 3 St. Tr. 1273. The improbability Treasons (25 Ed. III. st. 5. c. 2.), bj- of such a resolution being come to in which the subject is so anxiously the 25th Ed. III. is vei-y great indeed, guarded ag^iinst such vague charges, when we consider that in this very ye.ir CHIEF JUSTICE SHARKSHAIl.. 109 l)ciug degraded from his office, and stripped of all his ill-gotten wealth, he languished a few years, and died a natural death.* He was sueeeded by Sir \\'illiuia Shareshall, a Puisne Judge of the Comnion Picas,! of whom little 2eth Oct. is known except that he was employed to i^^^- - - / 1 1 TT Sir William make the opening speech to the two Houses Sharesimii i. .1 , £• ii • Chief Justice at the commencement oi three successive par- ^f the King's liameuts. "*°'''- On the first occasion he enlarged upon the internal state of the country, and upon his recommendation were passed the famous "Statute of Treasons," defining crimes against the state, and the " Statute of Labourers,'' showing our ancestors to have been then under the delusion, now so fatal to our conti- nental neighbours, that the " organisation of labour " is a fit subject for legislation. In the following year, the war with Franco being renewed, the Chief Justice thus tried to ex- „. ,, . . His addresses cite indignation and to obtain supplies : — toixjth ® '■^ Houses of " You are assembled to consider the title of our ,"[ "^k^ ' Lord the Kin^ to the crown of Fiance. You know that Philip dc Yalois usurped it all his life; and not only so, but testified his enmit}' to En2;laud by stirrino; up war against our King in Tiascony, and other dominions belougins to him, seizing upon his rights and possessions, and doing all possible mischief to him both by sea and land, hi former parliaments this matter has been propounded to you on behalf of the King, and your advice requested what was best to be done. After good deliberation you declared that you knew no other course than that the King, procuring allies, should go against his adversary by main force, and to enable him to do this you promised to aid him with body * Wc are not told the amount of his same hudfc : and for his livery at Christ- Falarj' as Chief Justice, but Dugdalc says, ma?, imlf a cloth likewise colour curt, " Sir William Thorpe, 21 Ed. I., then one hood containing xxxii bellies of mi- Chief Justice of the King's Bench, was never helf pur, one fur of minever con- nllowed out of the King's wardrobe at talning seven tires and two furs of silk, the Feast of All Saints, for bis Winter each ofsevcn tires." — Cr. Jar. p. 98. Robes, half a cloth colour curt, three f Dug. Cher. Ser. furs of white budg, and one hood of the 110 REIGN OF RICHARD II. Chap. II. and goods. Whereupon he made alUances with several foreign princes and powers, and by the help of the good people of England, and the blessing of God, he gained great victories, yet without being able to obtain a lasting peace. The King has assented to truces, but his adversary deceitfully broke these, actuated by im- placable malice against him and his friends. Now, after Philip's, decease, John, his son, has wrongfully possessed himself of the kingdom of France, has broken the existing truce both in Gas- cony and Brittany, and has sent to Scotland to renew the ancient alliance with that country, tending to the utter subversion and destruction of the people of England. Wherefore the King, much thanking you, his faithful Commons, for the aids you have already given him, and for the good will he has always found in you, now submits the matter to your consideration, and prays that you will take time to consult about it, and that at sunrise on the morrow you will come to the Painted Chamber to hear if the King will say anything further to you, and to show him your grievances, so that relief may be given to them at this meeting. Further, I charge the Commons, in the King's name, to shorten your stay in town, and that, for the quicker despatch of business, you immediately make choice of twenty-four or thirty persons out of your Avhole number, and he will send a number of Lords to confer with them about the business of the nation." This harangue of the Chief Justice was very favour- ably received, and the Commons granted to the King three tenths and three fifteenths, " in order to supply his great necessities."* Chief Justice Shareshall's final political performance was in April, 1355, when, on the first day of the par- liament, to induce the Commons vigorously to carry on the war, he expressed the King's earnest desire to make peace on honourable terms ; and he asked them " if they would agree to a peace, if it could be had by treaty ? " They answered, " that what should be agreeable to the King and his council, should be agreeable to them." Alarmed by their pacific tone, and trusting to their anti-Gallican prejudices, he ventured to ask them " if they consented to a perpetual peace if it might be had ? " * 1 Pari. Hist. 119. A.n. i;JOG. CHIEF JUSTICE CAVENDTSII. 1 1 1 when, to Ills great annoyance, " they all unanimously cried out 'yea! yea!'" However, a .supply Avas oU- tained ; and, the French Kiny; liecuniiuff insolent from the belief that Etlward's subjects, tired of the war, would desert him, the immortal iaiV. ' victory of Poictiers followetl. In 1358 the office of Chief Justice of the King's Bench was again vacant ; but whether by the death or resigna- tion of tShareshall, I have been unable to ascertain. He Avas succeeded l)y Sir Henry or'^^^Jf"'^^ Green, of whom I find nothing memorable. Then came the famous Sir John Knyvet, who after- wards held the Great Seal, and of whom I sirJoim have already told all that I know.* ^"^"J'^^'- Next we come to a Chief Justice whose career ex- cites considerable interest: Sir John de Caven- dish, the ancestor of the Duke of Devonshire. ^'"^ J"''" "^^ rm • • 1 p 1 n •■! Cavendish. Ihe original name of the family Avas Ger- His origin, non, or Gernum ; and they changed it on man-ying the heiress of the manor of Cavendish, in the county of Suffolk. This, however, was only a small possession ; and John, the son of the marriage, being of an aspiring nature, and seeing that in peaceable times promotion was to be gained by civil rather than military service, studied the law, was called to the bar, and soon gained the first-rate practice as an advocate. Such was his reputation, that, in the year 136G, Ed- ward III., after the peace of Bretigni, being desirous of making himself popular by good judicial appoint- ments, raised John de Cavendish to the oftice of Chief Justice of the King's Bench, al- a.i>. i3gg. though he had not filled the office of Attor- c^'ffj'i^L nev or Solicitor General, or even reached the "/the Kings dignity of the coif. The appointment gave universal satisfaction; and, Avith De Ca\-endish pre- * Lives of the Chancellors, vol. i. p. 260. 112 EEIGN OF KICHARD II. Chap. II. siding over the common law, and Knyvet over equity, it was admitted that justice had never "been so satis- factorily administered in Westminster Hall. Lord Chief Justice Cavendish held his office sixteen years, being reappointed on the accession of Richard II. with an advance in his salary to 100 marks a year. At last he fell a victim to the brutality of the A.D. 1382. populace in Wat Tyler's insurrection. After death in Wat that rebel chief had been killed in Smithfield MUon.'^^" ^y Sir William Walworth, there was a rising in Norfolk and Suffolk, under the conduct of a leader much more ferocious, who called himself Jack Straw, and incited his followers to more frightful devastations than any ever committed before or since in a jacquerie movement in England, where, in the worst times, some respect has been shown to the influence of station and the dictates of humanity. A band of them, near 50,000 strong, as infuriated as the canaille of Paris or the peasants of Gallicia in the crisis of a revolution, marched to the Chief Justice's mansion at Cavendish, Avhich they plundered and burned. The venerable Judge made his escape, but was taken in a cottage in the neighbourhood. Unmoved by his grey hairs, they carried him in procession to Bury St. Edmund's, as if to open the assizes, and, after he had been subjected to a mock trial in the market-place, he was sentenced to die; Jack Straw's Chief Justice magnanimously de- claring, " that, in respect of the office of dignit}' which his brother Cavendish had so long filled, instead of being hansced, he should be beheaded." It was resolved, however, that he should be treated with insult as well as with cruelty ; for his head being immediately struck off, it was placed in the pillory amidst the savage yells and execrations of the bystanders.* He seems to have been moderate in his accumulation * Walsingham. A.D. 1382. CHIEF JUSTICE CAVENDISH. 113 of wealth; for ho adiloJ very little to his landed estates, and his posterity for some generations re- mained in obsciirity. The next eminent Cavendish wo read of was Sir "William, "j.*,d^ts. lineally descended from the Chief Justice's oldest son, John. This individual, at starting, was not very high in office, being only gentleman-usher to Cardinal Wolsey. But he will ever be remembered with honour for his affectionate fidelity to his master, and for his inimitable Life of him, the earliest and one of the very best specimens of English biography. After Wolsey's fall, he was taken into favour by Henry YIII., and became auditor of the Court of Augmentations, Treasurer of the Chamber, and a Privy Coiincillor. Taking the side of the Reforma- tion, he received under Edward VI. largo grants of abbey lands in the county of Derby. His son was ennobled in the reign of James I. by the title of Baron Cavendish. In a subsequent generation, there were two dukedoms in the family : Cavendish, Duke of Devonshire, still flourishing; and Cavendish, Duke of Newcastle, which became extinct. VOL. I. 114 EEIGN OF EICHARD II. Chap. III. CHAPTEE III. CHIEF JUSTICES TILL THE DEATH OF SIR WILLIAM GASCOYNE. We next come to a Chief Justice of the King's Bench who actually suffered the last penalty of the Tresiii^ir ^^"^ — ^^^ deservedly — in the regular adminis- tration of retributive justice, — Sir Eobert Tre- silian, — 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.* As far as I know, he is the first and last of his name to be found in our judicial or historical records. The earliest authentic notice of him is at the commencement of the reign of Eichard II., „ . ^ when he was made a serieant-at-law, and He IS made a . . '' ' Puisne appointed a Puisne Judge of the Court of the King's King's Bench.f The probability is, that he "'*^ had raised himself from obscurity by a mix- ture 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 favourite of the young King, who, to the great annoyance of the princes of the blood, and * Gentleman's Magazine, vol. Ixiv. f Close Roll, 1 Rich. II. Liberat. ab p. 325. I suspect that he is assigned to anno i. usque ult. — Ric. II. m. 15. Cornwall on the authority of — " By Ti-e, Pol, and Pen, You know Cornish men." A.D. 1382. CHIEF JUSTICE TRESILIAX. 11 o the body of the luiliility, -svas crcateil IJxiku of Tnlainl, was vested for life with the sovereignty of that i.shind, and had the distribution of all patronage at home. ]»y the influence of this minion, Tresilian, soon after the melancholy end of Sir John Cavendish, was appointed Chief Justice of the King's IJeneh ; ciiirf Justice and he was sent into Essex to try the rebels. Uenth. The King accomjianied 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 mere}', and had it granted upon condititm 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 prin- cipal advisers of the measures of the Government, being ever ready for any dirty w-ork 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 favour- ites. " For these cunning flatterers, having, l)y forged crimes and accusations, incensed the King against him, contrived to have him suddenlj' arrested, and tried before Judge Tresilian, who, being perfectly framed to their interests, would be ready enough, upon such evidence as they should i)roduce, to condemn him.""|* But the plot got wind, and the Duke, flying to Ponte- fract Castle, fortified himself there till his retainers came to his rescue. In the following year, when there was a change of ministry according to the fixshion of those times, Tre- • Kennet, i. 243. t lb- 253. I 2 116 EEIGN OP RICHARD II. Chap. III. silian was in great danger of being included in the impeachment which proved the ruin of the enable Chancellor ; hut he escaped by an intrigfue to'trh'mph' with the victorious party, and he was sus- Baroiis*^ pcctcd of having secretly suggested the com- mission signed by Eichard, 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 instrumen- 25th Aug. tality of his brother Judges, to break the ■^^'*^- commission, and to restore the King and the favourite 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. Eelknappe, 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 dis- tributed all over England : — " Be it remembered, that on the 25th of Aug., in the 11th Th ini ^^^^' ^^ *^^^ reign of K. Rich. II., at the Castle of of the Judges Nottingham, before our said lord the King, Rob. ontheprivi- Tresilian, chief justice of England, and Rob. Bel- Pariiament. knappe, chief justice of the common bench of onr said lord the King, John Holt, Roger Fulthorp, and A.D. 1387. CHIEF JUSTICE TRESILIAX. 117 Wiu. lie Biir^li, kiu<;hts, justices, &c. and Jolin de Loktoii, the King's serjcant-at-Liw, in the presence of the lords and other witnt'sses under-written, were personally required by uiir said lord the Kiiii,', nu the faitli and alle<,'iance wherein Id liini the said King they are bound, to answer laitlifully unto certain questions here under specified, and to them then and there truly recited, and upon the same to declare the law accord- ing to their discretion, viz. : — "1. It was demanded of them, 'Whether that new statute, ordinance, and commission, made and jniblished in the last ixirl. held at Westni. be not derogatory to the royalty snd prerogative of our said k)\\\ the King ? ' To which tliey uaanimuusiy an- swered that the same are derogatory thereunto, especially because they were against his will. " 2. ' How tliose are to be punished who procured that statute and commission ? ' — ^-1. 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 ilaj. would pardon them. " 4. ' What punishment they deserved who compelled, straight- ened, or necessitated the King to consent to the making of the said statute and commission ? ' — --1. That they ought to suffer as traitors. " 5. ' How those are to be puuislicd who hindered the King from exercising those things which appertain to his royalty and prerogative?' — A. That tliey are to be punished as traitors. " 6. ' Whether after in a i)arl. assembled, the affairs of the kingdom, and the cause of calling that pari, are by the King's command declared, and certain articles limited by the King upon which the lords and commons in that pari, ought to proceed ; if j'et the said lords and commons will proceetl altogether uix)n other articles and affairs, and not at all upon those limited and projx)sed 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 pari, and effectually overrule them, so as that they ought to proceed first on the matters jirojKjsed by the King : or whe- ther, on the contrary, the lords and commons ought first to have the King's answer ujion their projwsals before they proceeded further?' — A. That the King in that behalf has the governance, and may app^iint what shall be first handled, and so gradually what next in all matters to be treated of in pari., even to the end of the pari. ; and if any act contrary to the King's pleasure made known therein, they are to be punished as traitors. 118 REIGN OF KIOHAED II. Chap. III. "7. ' Whether the King, whenever he pleases, can dissolve the pari, and command the lords and commons to depart from thence, or not ? ' — A. That he can ; and if any one shall then proceed in pari, 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 pari, 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. " 9. ' How is he to be punished who moved in pari, that the statute should be sent for whereby Edw. II. (the King's great- grandfather) was proceeded against and deposed in pari. ; by means of sending for and imposing which statute, the said late statute, ordinance, and commission were devised and brought forth in pari. ? ' — A. That as well he that so moved, as he who by pretence of that motion carried the said statute to the pari., are traitors and criminals to be punished with death. " 10, ' Whether the judgment given in the last pari, held at Westm. against Mich, de la Pole, earl of Sufiblk, was erro- neous 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 afore- said, to these presents have put their seals in the presence of the rev. lords, Alex. abp. of York, Eob. abp. of Dublin, John bp. of Durham, Tho. bp. of Cliichester, and John bp. of Bangor, Eob. duke of Ireland, Mich, earl of Suffolk, John Eypon, clerk, and John Blake, esq. ; given the place, day, mouth, and year aforesaid." Tresilian exultmgl}^ thought that he had not only got rid of the obnoxious Commissiou, but that he had annihilated the power of Parliament by the destruction of parliamentary privilege, and by making the pro- ceedings 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 Com- mission was proclaimed to the citizens at the Guild- hall ; and all who should act under it were declared A.D. 1387. CHIEF JI'STICE TRESILIAN. HO traitors. A resolution was forraed to arrest the most obnoxious of the ojtposite faction, and to send j,(.„s„rr« them to take their trials before the Judges pr"mi.t.tiby vho had already eonniiittod themselves on the "Runst the question of law ; and, under the guidance of Tresilian, a bill of indictment was actually prepared agiinst them for a conspiracy to destroy the royal prerogative. Thomas Ush, the under shciiff, promised to pack a jury to convict them ; Sir Nicholas Brambre, who had been thrice Lord Jlayor, undertook to .secure the fidel'ty of the citizens; and all the City Companies swore thit they would live and die with the King, and fight against his enemies to their last breath. Arundel, tishop of Ely, was still Chancellor; but Tresilian considered that the Great Seal was now within his own grasp, and, after the recent example.*, in Pamyngeand Knyvet, of Chief Justices becoming Chancellors, .le anticipated no obstacle to his eleva- tion. At such a sbw pace did news travel in those days, that, on the nght of the 10th of November, Eichard and his Chief i,ustice went to bed thinking that their enemies were amihilated, and next morning they were awoke by the iitelligence that a large force, under the Duke of Glouceser and the Earls of Arundel and Nottingham. was encamped at Highgate. Jss^.^"^' The confederate Lords, hearing of the pro- ceedings at Nottngham, had immediately rushed to arms, and followel Kichard towards London, with an army of 40,000 men. The walls of London .j.^^^ Barons were sufficient to repel a sudden assault ; mn tiie and a royal procamation forbade the sale of provisions to tht rebels, — in the hope that famine might disperse tkm. But, marching round by Hack- ney, they approacied Aldgate, and they appeared so formidable, that a treaty was entered into, according 120 EEIGN OF KICHARD II. Chap. III. to wliicli 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 theii way to the King at Westminster. Eichard himseZf agreed that on the following Sunday he would le- ceive the deputies, sitting on his throne in West- minster Hall. At the ai)i3ointed hour he was ready to receive fhem, Irat 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 arjaed men or more in a place called the Mews, contrar;" to cove- nant ; 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 ^l they could lay hands on. The truth was, that Sir Nicholas Brambre, in concert with Tresilian, hed planted an ambush near Charing Cross, to assassiiate the Lords as they passed ; but, in obedience to th3 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 tiey 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 dowj before him with all seeming humility. He, feigning to be pleased to see them, rose and took each of then by the hand, and said, " he would hear their plaint, as he was desirous to render justice to all his aibjects," There- prosecuted upon they said, " Most dread Sovereign, t?ea'^!fn ^^ appeal of high treasoi Eobert Tresilian, that false justice, Nichoas Brambre, that disloyal knight ; the Archbishop (f York ; the Duke A.D. 1389. CHIEF JUSTICE TRESILIAX. 121 of Ireland ; and tho Earl of Suffolk :" — and, to prove their accusation to be true, they threw down their •gauntlets, protesting, T»y their oaths, that they were ready to prosecute it to battle. " Nay," said the King, " not so ; but in tho next Parliament (which we do appoint beforehand to begin tho morrow after the Pu- rification of Our Lady), both thoy and you, appearing, sliall receive according to law what laAV doth require, and right shall bo 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 Tresiliau disguised himself, and remained in concealment till he was discovered, after being attainted in tho manner to be hereafter described. The elections for the new Parliament ran strongly in ftivour of the confederate Lords ; and, on 3rd peb. the day appointed for its meeting, an order ^•'*'^' was issued under their sanction for taking into cus- tody all the Judges who had signed the Opinion at Nottingham. They were all arrested while they were sitting on tho bench, except Chief Justice Tresilian ; but ho was nowhere to be found. When the members of both Houses had assembled in 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 iuunmeraLle company foUowint; them, and, approaching the King, they all with snbmissive Proceedings gestnres reverenced him. Then rising, tliey declared ment. their appeUation by the mouth of their s^x-aker, who said, ' Behold the Duke of Gloucester comes to purge himself of treasons wliich are laid to his charge by the conspirators.' To whom the Lord Chancellor, by the King's command, answered, *Aly Lord Duke, the King conceiveih so honourably of you, 122 EEIGN OF EICHAKD II. Chap. III. 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 kejit, the good peace, quiet, and tranquil- lity 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.' "f AVritten articles to tlie 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 Eobert Tresilian, that false Jus- tice ; " 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 there- after, judgment was given " that the im- peachment 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 * It will be observed, that although being the judges; but all appeals of the Commons took this oath they had treason in Parliament were taken away nothing to do with the trial, either as by 1 Hen. IV. c. 14. — See Bract. 119 a ; accusers or judges. At this time there 3 Inst. 132. might be an appeal of treason in Par- f 1 St. Tr. 89-101; 1 Pari. Hist. 196- liament by private persons, the Lords 210. A.D. 1389. CHIEF JUSTICE TRESILIAN. 123 was pronounced, " that Sir Robert Trcsilian, the Duko of Ireland, the Archbishop of York, and Earl TrpciUau of Suffolk, should bo drawn and hanged as '»"'»""«^J- traitors and enemies to the Kin>j; and kingdom, and that their heirs should be disinherited for ever, and that their lands and tenements, goods and chattels, should be forfeited to the King." Tresilian might have avoided the executicjn of his sentence, had it not been for the strangest infatuation related of any liuiaan 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 neighbourhood He comes to of ^yestminster Ilall on the first day of the in disguise. session of parliament ; and, even after his o^vn attainder had been published, trusting to his dis- giiise, his curiosity induced him to remain to watch the fate of his associate, Sir Nicholas lirambre. This chivalrous citizen, who had been knighted for the bravery he had displayed in assisting Sir William Walworth to kill Wat Tyler and to put down the rebellion, having been appre- hended 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 Avith 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." 124 EEIGN OF KICHAED II. Chap. III. 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 judg- ment to give, to the advantage and profit of the King and kingdom, and as the}' would answer before God." They adjourned for two days, and met again, when a number of London citizens appeared to give evidence agrainst Brambre. For the benefit of the reader, the chronicler 1 have before quoted shall continue the story : — " Before they could proceed with his trial, they were inter- rupted by unfortunate Tresilian, v/ho being got upon Heisdis- the top of an apothecary's house adjoining to the prehemiVdr palace, and descended into a gutter to look about aud executed, 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 stept to the master of the house, and taking him by the shoulder, with his dagger drawn, said thus, ' Show us where thou hast hid Tresiliau, or else resolve thy days are 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 TresiUan 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 A.D. 1389. CHIEF JUSTICE TRESILIAN. 125 himself giiilty of any thin<;. Whereuiwn he was without delay led to the Tower, tliat he mi^lit sufler the sentence passed against him : liis wife and his children did with many tears accompany him to the Tower ; hut 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 wonderl'ul concourse of people following him. At every furlong's end he was sufll-red 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 con- fessor, 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 'so up ; and, when he was up, he said, ' So long as I do wear anything 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 parclimcnt ; these being taken away he was hanged up naked, and after he had hanged some time, tliat 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." * I add an account of this scene from Froissart, which is still more interesting : — " Understanding that the King's uncles and the new Council at England would keep a secret parliament at Westminster, he (Tresilian) thought to go and lie there to learn what should be done ; and so he came and lodged at Westminster the same day their Council began, and lodged at an ale-house right over against the palace gate, and there he was in a chamber looking out of a window down into the court, and there lie might see them that went in and out to the Council, but none knew him because of his apparel. At last, on a day, a squire of the Duke of Gloucester's knew him, for he had oftentimes been in his company : and as soon as Sir Robert Tresilian saw him he knew him well, and withdrew himself out of the window. The squire had suspicion thereof, and said to himself, ' methinks I see yonder Sir Robert Tresilian ; ' and, to the intent to know the truth, he entered into the lodging, and said to the wife, ' Dame, who is that that is above in tlie chamber ? is he alone, or with • 1 St. Tr. 115-113. 126 EEIGN OF KICHAED II. Chap. III. company ? ' ' Sir,' quoth she, ' I cannot shew you, but he has been here a long space.' Therewith the squire went up the better to advise liim, and sahited him, and saw well it was true ; but he feigned himself, and turned his tale, and said, ' God save you, good man, I pray you be not discontented, for I took you for a farmer of mine in Essex, for you are like him.' ' Sir,' quoth he, ' I am of Kent, and a farmer of Sir John of Hollands, and there be men of the Bishop of Canterbury's that would do me wrong ; and I am come hither to complain to the Council.' ' Well,' quoth the squire, ' if you come into the palace I will help to make your way, that you shall speak with the Lords of the Council.' ' Sir, 1 thank you,' quoth he, ' and I shall not refuse your aid.' Then the squire called for a pot of ale, and drank with him, and paid for it, and bade him farewell, and departed ; and never ceased till he came to the Council Chamber door, and called the usher to open the door. Then the usher demanded what he would, because the Lords were in Council ; he answered and said, ' I would speak with my lord and master the Duke of Gloucester, for a matter that right near toiicheth him and all the Council.' Then the usher let him in, and when he came before his master he said, ' Sir, I have brought j'ou great tidings.' ' What be they ? ' quoth the Duke. ' Sir,' quoth the squire, ' I will speak aloud, for it toucheth you and all my lords here present. I have seen Sir Eobert Tresilian disguised in a villain's habit, in an alehouse here without the gate.' ' Tresilian ? ' quoth the Duke. ' Yea, truly, sir,' quoth the squire, ' you shall have him ere you go to dinner, if you please.' ' I am content,' quoth the Duke, ' and he shall show us some news of his master the Duke of Ireland ; go thy way and fetch him, but look that thou be strong enough so to do that thou fail not.' The squire went forth and took four Serjeants with him, and said, ' Sirs, follow me afar off; and as soon as I make to you a sign, and that I lay my hand on a man that I go for, take him and let him not escape.' Therewith the squire entered into the house where Tresilian was, and went up into the chamber; and as soon as he saw him, he said, ' Tresilian, you are come into this country on no goodness ; my lord, the Duke of Gloucester, commandeth that you come and speak with him.' The knight would have excused himself, and said, ' I am not Tresilian, I am a farmer of Sir John of Hollands.' ' Nay, nay,' quoth the squire, ' your body is Tresilian, but your habit is not;' and therewith he made tokens to the Serjeants that they should take him. Then they went up into the chamber and took him, and so brought him to the palace. Of his taking, the Duke of Gloucester was right joyful, and would see him, and when he was in his presence the Duke said, ' Tresilian, Avhat thing makes you here in this A.D. 1389. CHIEF JUSTICE TRESILIAN. 127 country? wluro is the King ? where left you him?' Tresilian, when lie s;i\v that he was so well kn^wn, and that none excusa- tion coulil avail him, s;ii(l, 'Sir, the Kint; sent me hither to learn tidings, and he is at Bristol, and huntetli alon^; the river Severn.' * What,' quoth the Duke, ' you arc not come like a wise man, but rather like a sjiy ; if you would have come to have learnt tidings, 5'ou should have amie in the state of a knight.' 'Sir,' quoth Tresilian, ' if I have trespassed, I ask pardon, for I was caused this to do.' ' Well, sir,' quoth the Duke, ' and where is your master the Duke of Ireland ?' 'Sir,' quoth he, 'of a truth he is witli the King.' ' It is showed us here,' quoth the Duke, ' that he assembleth much people, and the King for him ; whither will he lead that people?' ' Sir,' quoth he, ' it is to go into Ireland.' ' Into Ireland ! ' quoth the Duke of Gloucester. ' Yea, sir, truly,' quoth Tresilian : and then the Duke studied a little, and said, ' Ah, Tresilian, Tresilian ! your business is neither fair nor good ; you have done great folly to come into this country, for you are not beloved here, and that shall well be seen ; j-ou, and such other of your affinity, have done great displeasure to my brother and me, and you have troubled to your power, and with your counsel, the King, and divers others, nobles of the realm ; also you have moved certain good towns against us. Now is the day come that you shall have your ]iayment ; for he that doth well, by reason shall find it. Think on your business, for I will neither eat nor drink till you be dead.' That word greatly abashed Tresilian ; he woiUd fain have excused himself with fair language, in lowly humbling himself, but he could do nothing to apjiease the Duke. So Sir Robert Tresilian was delivered to the hangman, and so led out of Westminster, and there beheaded, and after hanged on a gibbet." * Considering the violence of the times, Tresilian's conviction and execution cannot bo regarded Hischa- as raising a strong presumjition against him : '"'"^'■■ but there seems little doubt that he flattered the vices of the unhappy Eichard ; and historians agree, that, in prosecuting his personal aggrandisement, he was utterly regardless of law and liberty.f He died unpitied, and, • Frois. part 2. fol. 110. took, if the King should cause the Duke t Thus Guthrie says (a.d. 1384), to be arrestetl, to proceed against him as " Richard was encouraged in hisjealousy a common traitor." — Vol. il. p. 326. of the Duke of L;incjister Iwtli by the " Ircsillan had no rule of judgment clergy about his person, and Tresilian, but the occasion it was to serve, and he his Infamous chief justiciary, who under- knew no occasion which he could not 128 EEIGN OF RICHARD II. Chap. III. notwithstanding tlie "historical doubts " by which wo are beset, no one has yet appeared to vindicate his memory. He left behind him an only child, a daughter, who was married into the respectable family of Howley, from whom descended the late venerable Archbishoi^ of Canterbury.* I must now give some account of his contemporary, Sir Egbert Bei.knappe, Chief Justice of the Common Pleas, who, although trepanned into the Bdfawppe. unconstitutional and illegal act of signing the answers which Tresilian had prepared at Nottingham, with a view to overturn the party of the Duke of Gloucester and the Barons, appears to have been a respectable Judge and a worthy man. The name of his ancestor (spelt Belknape) is to be found in the list of the companions of William the Conqueror who fought at Hastings, amiy. pj-gggj-ved in Battle Abbey.f The family continued in possession of a moderate estate in the county of Essex, without producing any other member who gained distinction till the reign of Edward III. Robert, a younger son, was then sent to push his fortune in the inns of court, and he acquired such a taste for the law, that on the death of his father and elder brother, while he was an apprentice, he resolved still steadily to follow his profession, and to try for its honours. After some disappointments he was made a King's Serjeant ; | and finally his ambition was fully render suitable to law. He was too Ig- * Gentleman's Magazine, vol. l.\iv. norant to be serviceable even to the p. 325. wretched politics of that court, any fur- f Thierry, Nor. Con. ii. 385. ther than by blind compliance. Thus, J While King's Serjeant, he seem.s to like a dog chained up in darkness, when have had a salary of 20Z. a year, in re- nnmuzzled he was more fierce, and, spect of which he was sometimes sent as without distinction, tore down all whom a judge of assize, and sometimes he his wicked keepers turned into his tre- pleaded crown cases as an advocate : — mendous haunt." — Vol. ii. p. 349. 1 A.D. 1387. CHIEF JUSTICE BELKNAPPE. 129 gratified with the office of Chief Justice of the Common rieiiH. He gave high satisfaction as a Judge, ^ „ jgg. and, being esteemed by all parties, it was "*"• '•*"• 11 1 r If 1 ITT He ig made expected that on tlio accession oi Kichard 11. chief Justice he would have been appointed Chief Justice mon i-ie^.' of the King's Bench ; but he was passed ■*"■ '^"' over through the intrigues of Tresilian. Ho was permitted, however, to retain " the pillow of the Common Pleas ;" and with this he was quite con- tented, for, devoting himself to his judicial duties, he had no desire to mix in the factions which then divided the state. He did not take any part in the struggle which ended in the Commission for making fourteen Barons viceroys over the King ; and he went on very quietly and comfortably till the month of August, 1387, when, returning from the summer circuit, he Avas summoned in the King's name to attend a xhenianner council at Nottingham. On his arrival there '" ^^''''^'^ 4 he was received by Lord Chief Justice into the Tresilian, who at once explained to him the iiieRai plan which had been devised for putting ''P""""- doAvn the Duke of Ireland and the Barons ; and showed him the questions to be submitted to the Judges, with the answers which they were desired to return. He saw that many of these answers were contrary to law, and, though extrajudicial opinions were given without scruple by the Judges to the Crown ages afterwards, " Issue Roll, 44 Edward III. "To the same Robert, one of the IToRobcrtBelknappe, King's Serjeants, in money delivered to one of the Justices to 1"°^ '° discharge of the lOl. payable to hidd the assizes in di- 'i''" "^ Michaelmas Term last past, for vers counties in the ^^^ ^OJ. yearly which the Lord the King kingdom of Enghind, and to deliver the '•''ely granted to the sjime Robert, to he gaols there, receivhig yearly 201. for his ''eceived at the Exchetiuer in aid of his fee in the office aforesaid. In money expenses in prosecuting and defending delivered to him (or half a year's pay- '^'^ business, lOl."— Devon's Issue Holls, ment, 10?. P- 369, m. 14. VOL. I. K 130 KEIGN OF KICHARD II. Chap. III. he was startled by the clanger to which he must expose himself hy openly flying in the face of those who were actually in possession of supreme power. He therefore flatly refused to sign the answers, and he did not yield till the Duke of Ireland and the Earl of Suffolk were called in and threatened to put him to death if he remained contumacious any longer. Thereupon he did sign his name under Tresilian's, saying, " Now I want nothing but a hurdle and halter to bring me to that death I deserve. If I had not done this, I should have been killed by your hands ; and, now I have gratified the King's pleasure and yours in doing it, I have well deserved to die for betraying the nobles of the land." * Belknappe observed with great dismay the King's march to London, and the ensuing civil reste/aiid "^ar which terminated in favour of the convicted of j^arons ; but he remained unmolested till the nigh treason. ^ ' 3d day of February following, when he was arrested while sitting in the Court of Common Pleas, and, along with the other Judges, was com- mitted to the Tower of London. There he lay till after the trial of Brambre and the apprehension and execution of Tresilian. The House of Commons then took up the prosecution against Sir Eobert Belknappe, and the other 2nd March. i -t ' Judges, and impeached them before the House of Lords, " for putting their hands and seals to the questions and answers given at Nottingham, as aforesaid, by the procurement of Sir Eobert Tresilian, already attainted for the same." . Some of them pre- * Another account makes him say, worthy of my desert ; and I know that " Now I want nothing but a ship or a if I had not done this, I should not have nimble horse, or a halter, to bring me to escaped your bauds; so that for your that death I deserve" (3 Tyrrell, 906): pleasures and the King's I have done it, and a third, " Now here lacketh nothing and thereby deserve death at the hands but a rope, that I may receive a reward of the Lords." — (3 Holin. 456.) A.D. 1389. CHIEF JUSTICE BELKNAPPE. 131 tended that their answers had not been faithfully recorded ; but Sir Robort Belknappe pleaded the force put upon him, det-laring " tliat wlion urged to testify against the Comiui.ssiou, so as to make it void, lie had answered, that the intention of the Lords, and such as assisted in making it, and the statute confirming it, was to support the honoiir and good government of the King and kingdom : that he twice parted from the King, having refused to sign the answers : that, being put in fear of his life, what he had done proceeded not from his will, but was the eflfect of the threats of the Archbishop of York, the Duke of Ireland, and the Earl of Suffolk ; and that ho was sworn and commanded, in presence of the King, upon pain of death, to conceal this matter. He therefore prayed that, for the love of God, he might have a gracious and merciful judgment." The Commons replied, that " the Chief Justice and his brethren, now resorting to such shifts, were taken and holden for sages in the law ; and they must have known that the King's will, when he consulted them at Not- tingham, was, that they should have answered the questions according to law, and not, as they had done, contrary to law, with design, and under colour of law, to murther and destroy the Lords and loyal lieges wIkj were aiding and assisting in making the Commission and the statute confirming it, in the last Parliament : — therefore, they ought all to be adjudged, convicted, and attainted as traitors." The Lords Spiritual withdrew, as from a case of blood ; and the Lords Temporal, having deliberated upon the matter, pronounced the following sentence : — " That inasmuch as Sir Robert Belknappe and his brethren, now impeached by the Commons, were actually present in the late parliament tainted of when the said Commission and statute re- '^ 'fe^son. ceived the assent of the King and the three estates 132 REIGN OF RICHARD II. Chap. III. of the realm, being contrived, as they knew, for the honour of God, and for the good government of the state, of the King, and whole kingdom ; and that it was the King's will they should not have answered otherwise than according to law ; yet they had answered in manner and with the intent charged against them : they were, by the Lords Temporal, and by the assent of the King, adjudged to be drawn and hanged as traitors, their heirs to be disinherited, and their lands and tenements, goods and chattels, to be forfeited to the Kins- Eichard himself sat on the throne during the trial, and was much shocked at this proceeding. But, to his unspeakable relief, as soon as the sentence was pro- nounced, the Archbishop of Canterbury and all the prelates returned, and prayed that " the execution, as to the lives of the condemned Judges, might be respited, and that they might obtain their lives of the King." This proposal was well relished, both by Lords and Commons ;f and, after some consultation, the King ordered execution to be stayed, saying that " he would grant the condemned Judges their lives, but the rest of the sentence was to be in full force, and their bodies were to remain in prison till he, with the advice of the Lords, should direct otherwise concerning them."| A few days afterwards, while the Parliament was ^, ^ still sitting, it was ordained that " they should The sentence o; J commuted all be scnt into Ireland, to several castles and portation to places, — there to remain during their lives ; each of them with two servants to wait upon him, and having out of their lands and goods an' allow- * 1 Pari. Hist. 197—211; 1 St. Tr. This Parliament was rather unjustly 89—123. called "The Merciless Parliament." — f " The Parliament considered that 4 Rapin, 49. Others more justly styled the whole matter was managed by Tre- it " The Wonder-working Parliament." silian, and that the rest of the Judges — i Kennet, 262. were surprised and forced to give their J 3 Tyrrell, 630, 632. opinion." — 1 Kennet, 263. A.D. 1389. CHIEF JUSTICE BELKNAI'I'E. 133 ance for their sustenance." Belknappe's was placed at tlio rather lil^eral sura of 40/. a-year.* He was accurduigly transported to Ireland, then considered a penal colony. At first he was stationed at Drogheda, having the liberty of walking about within three leagues of that town.f lie was subsequently transferred to l-)u1)lin ; and, after ho had He is al- to suftered banishment for nine years, he had "®.^ leave to return to his own country, and to !?'"!■" '? practise the law in London. | This mitiga- tion was at first euniplained of, as being contrary to a sentence pronounced in full parliament — but it was acquiesced in, and, although the attainder never was reversed, King Kichard, considering him a martyr, made him a grant of several of his forfeited estates. He never again appeared in public life, but retired into the country, and, reaching extreme old age, became famous for his piety and his liberality to the Church. By a deed bearing date October 8th, in the second year of King Henry IV., he made over a good estate to the Prior of St. Andrew in Rochester, to celebrate mass in * " 5th Nov. «n. 13 Ric. II. To Sir grace, with the assent of his council, of Thomas Belknappe, Icnight, who, by the 13th day of .July, in the 12tb year of force of a judpnient pronounced against his reign, granted to the same RolK-rt 40i. him In the Kings last parliament as- yearly, to be received during his life out sembled at Westminster, was condemned of the issues and revenues of the manor to death ; and all and singular tlie lands and tenements aforesaid, to be paid manors, lands, and tenements, goods, by the hands of the fiirmers thereof for and chattels whatsoever, which belonged the time being, &c., according to an ordi- to the aforesaid Robert, were seised into nance of the Parliament afore&iid. In the King's hands, as forfeited to the money paid to him by the hands of King for the rea.->on aforesaid : where- Juliana bis wife, viz. by assignment upon the said I^)rd the King being moved made to the same Juliana this day, 201., with mercy and pity, and wishing and and in money counteord Chancellor EUesmere, in citing Ireland was the place of his banishment, this decision in the case of the Pastnatf, and he had been recalled by Richard II. states that Sir Robert Bellmappe had —See 2 St. Tr. 559. AD. 1399. CHIEF JUSTICE THIRNYNGE. 135 was made a riiisiio Jmlgo of the Common Pleas in the year 1388,* at a famous time for pro- ^^^.^^ j^^^j^^ motion in Westminster llall, one Chief Jus- oftUfCum- 1 • 1 1 1111 1 Ti taon rieos. tice beinf; hanged, and all tlie other Judges being cashiered, attainted, and ])anished."|" lie prohaLly was not, jireviously, of much mark or likelihood, but he proved to be one of the most distinguished magistrates who ever sat on the English bench, being not only deeply versed in his profession, but of spotless purity and pci'fuct independence. On the death of Sir Eobert de Charleton, who had been appointed Chief Justice of the Common Pleas in the room of Belknappe, he suc- ceeded to that office,^ which he filled with high credit in three reigns. There are many of his decisions to be found in the Year-Books, but they are all respecting aid prayers, essoins, and other such subjects, which have long been obsolete ; and I must confine myself to the part he bore in an historical transaction which must ever be interesting to Englishmen. While we honour Lord Somers and the patriots who took the most active part in the revolution of 1688, by which a King was cashiered, jiisJiflcation hereditary right was disregarded, and a new of the pan he - f » ' t(M>k III the dynasty was placed on the throne, we are 'imposition of apt to consider the Kings of the house of Lancaster as usurpers, and those who sided with them as rebels. Yet there is great difiiculty in justifying the deposition of James IL, and condemning the depo- sition of Kichard II. The latter sovereign, during a • 11th April, Pat. 11 Rich. II. p. 2, Common Bench, receiving yearly 40 m. 21. marks for his fee in the office aforesaid. f The salary of a puisne could not In money paid to him by the hands of have been very attractive to a barrister William Vaiix, in discbarge of 20 marks in good practice, for It was still ODly 40 paid to him f >r this his fee. By writ, marks a year: — &c., 13i. 6s. 8d." — Dev. Issue liolU, 262. " 16th Oct., 19 Rich.'ird II. To William + Pat. 19 Rich. II. p. 1, m. 1. Thirnyng, one of the Justices of the 136 KEIGN OF EICHAKD II. Chap. III. reign of above twenty years, liad proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still uuder the influence of worthless favourites, and was guilty of continued acts of tyranny and oppression ; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather, was now almost unanimously re- solved to submit no longer to his rule. I therefore cannot blame Chief Justice Thirnynge for attempting to rescue the country from the state of con- fusion into which it had fallen, and to restore regular government itnder a new sovereign, who, although he was not next in succession according to the rules of hereditary descent, was of the blood royal, — who was by birth the nearest to the throne of those who could be placed upon it in such an exigency,* — who, by his vigour and his prudence, had shown capacity to govern, — and to whom all classes of the community looked as their deliverer. Thirnynge neither gained nor expected to gain any personal advantage from the change, and he does not appear to have been actuated by any im- proper motive. Henry of Bolingbroke being, soon after his landing at Eavenspurg, de facto master of the kingdom, writs were issued in Kichard's name for a new parliament to meet at Westminster on the 30th of September, when it was planned that there should be a formal transfer of the crown. Thirnynge certainly lent himself to this design, and was the principal agent in carrying it into effect. On the day before parliament was to assemble, he went with several other commissioners to the Tower of London, where Eichard was confined, to remind him * The Earl of March, the legitimate heir after Richard II., was then a boy only seven years old. A.n. 1300. CHIEF JUSTICE THIRNYNGE. 137 of a promise lie had recently made at Bristol that he would abdicate, and to obtain from him a formal renun- ciation of his rights. According to the account then published (whicli must bo regarded with some sus- picion), Itichard spontaneously and cheerfully signed a paper, whereby he absolved all his subjects from their allegiance, and confessed himself to be " utterly insuf- ficient and unuseful for rule and government."* Next day, when tlie Lords and Commons assembled in Westminster Hall, the throne being vacant, and liolingbroke still sitting on the left side t>f it, occupying the uppermost place on the Duke's bench, this resigna- • Sir John Hayward says, that when Thirnynge and his companions came to the Tower, " the unhapiiy monarch was brought forth, apparelled in his royal robes, the diadem on his head, and the sceptre in his hand, and was placed among them in a chair of state." He adds, that, after a little pause, the King arose from his seat, and spoke to the following effect : — " I assure myself that some at this present, and many hereafter, will account my case lamentable ; either that 1 have deserved this (lojection, if it be just; or if it lie wrongful, that 1 could not avoid it. Indeed 1 do confe.ss, that many times 1 have showed myself both less provi- dent and less painful for the benefit of the commonwealth, than 1 should, or might, or intended to do hereafter; and have in many actions more respected the satis- fying of my own particular humour, than either justice to some private per- sons, or the common good of all ; yet I did not at any time either omit duty or commit grievance, U])on natural dulness or set malice; but partly by abuse of corrupt counsellors, partly by error of my youthful judgment. And now the remembrance of these oversights is so unpleasant to no man as to myself; and the rather because 1 have no means left, either to recompense the injuries which 1 have done, or to testify to the world my refornieil affections, which experi- ence and stayedness of years had already corrected, and would daily have framed to more perfection. But whether all the imputations wherewith I am charged be true, either in substance, or in such quality as they are laid; or whether, being true, they be so heinous as to en- force these extremities ; or whether any other prince, especially in the heat of youth, and in the si)ace of 22 years, the time of my unfortunate reign, doth not sometimes, either for advantjige, or upon dis])leasurc, in as ileep manner grieve sonte particular subject, I will not now examine : it helpeth not to use de- fence, neither booteth it to make com- plaint; there is no place left for theone, nor pit}- for the other : and therefore I refer it "to the judguient of Gsc»I hearts, And jiritk my tender patiena- to those thoughts Which honour and allegiance cannot think." However, the fatal answer was given, — ' Think what you will; we seize into our hands His plate, his gooils, his money, and his lands." * Aecordingly, a supersedeas wa.s passed under the Great Seal, revoking Gascoigne's authority to sue as attorney fur the banished Duke ; and the whole of his property, real and personal, was taken possession of as forfeited to the Crown.f Gascoigne sent intelligence of this outrage to the young Duke of Lancaster, who, as soon as he had made the necessary preparations, lauded at Eavenspurg ; at first only claiming his rights as a subject, but soon openly aiming at the crown. During the struggle, Gascoigne did not join Henry in the field, but, remaining in London, advised measures for aiding his cause; and, when the nation had de- clared for him, acted in concert with Chief Justice Thirnynge in smoothing his waj' to royalty. Henry IV. being proclaimed King, one of the first acts of his reign was to appoint Gascoigne ueisap- Chief Justice of the Court of Kind's Bench, pointed chief (Justic* of and to confer upon him the honour of knight- the lung'a hood.l ''""'• • Shaks. lllch. II. act ii. sc. 1. micht prosecute' for livery to him to be t The revocation of Gascolgne's autho- made of all manner of Inheritance or rity to represent Henry was made one of successions belonging to him, and that the charges against liichard, for which his homage should be respited paying a sentence of deposition was pronounced certain reasonable fine, — he injuriously against him. "Art. 12. — After the said did revoke the said letters patent, King had graciously granted his letters again.st the laws of the land, thereby patent to the Lord Henry, now Duke of Incurring the crime of perjury." — 1 yt. LiUicjtstcr, that in his absence, whilst Tr. 143. be was banished, his general attomies J See Dug. Chr. Sor.— The exact date VOL. I. L 146 KEIGN OF HENRY IV. Chap. III. Never was the seat of judgment filled by a more upriffht or independent magistrate. He A.D. 1400. ir O i o was likewise celebrated for the sonndness of his decisions. The early Abridgments swarm with them ;* but it is only to an antiquarian lawyer that they now possess any interest. Traits of disinter- estedness, fortitude, and magnanimity, showing an enlightened sense of what is fit, and a determina- tion, at every risk and every sacrifice, to do what duty requires, please and edify all future genera- tions. Therefore, although the ashes of Sir William Gascoigne have reposed upwards of four centuries beneath the marble which protects them, and although since his time there has been a complete change of laws and manners, — when we see him despise the frown of power, our s^^mpathies are as warmly excited as by the contemplation of a Holt or a Camden. The first recorded instance of an independent spirit AD 1405 being displayed by him, to the wonder of His refusal his Contemporaries, was when he attended lateTnd^'^' Hciiry IV. to the north, to assist in putting P*^'^''- down fin insurrection, planned by Scrope the Archbishop of York and Thomas Mowbray, son of the banished Duke of Norfolk who had died abroad.j The of Gascoigne's appointment to this ofBce office ; and Sir WUliam Guscoigne's opi- has not been ascertained ; and some tiave nions as Chief Justice are to be found deferred it for a year or two, chiefly on in the Year-Books from the very com- the ground that in the iirst parliament mencement of Henry's reign, of Henry IV. the confession of John * See references to them in Gascoigne's Hall, concerned in the murder of Thomas, Year-Book, part vi., reign of Henry IV., Duke of Gloucester, by smothering him and Life in the Biographia Britannica. between two feather beds at Calais, was f It is a curious fact that the military taken by Sir Walter Clopton, who had functions of the Grand Justiciar, al- been Chief Justice of the King's Bench though no longer belonging to the Chief in the reign of Richard II., and that the Justice of the King's Bench viHuie same Sir Walter Clopton was summoned officii, were sometimes specially as- to parliament the following year. But signed to him. Thus, in the rebellion of all this is consistent with his having the Percys, two years before, Chief Jus- been removed to an inferior judicial tice Gascoigne had been sent to quell it. A.D. 1408. CHIEF JUSTICE GASCOIGNE. 147 King, having made these two rebels prisoners, directed Gascoigne, as Chief Justice of England, immediately to sit in judgment upon them, and, by his own authority, to sentence thcni to death. But, notwithstanding repeated solicitations, he peremptorily refu.-^ed, saying, " Much am I beholden to your Highness, and all your lawful commands I am bound by my allegiance to obey ; but over the life of the prelate I have not, and your Highness cannot give me, any jiirisdiction. For the other prisoner, ho is a peer of the realm, and has a right to be tried by his peers." A more obsequious agent was found in Sir "William Fulthorpe, a worthless Puisne Judge, who, in the hope of seeing Gascoigno disgraced, and of succeeding to the office of Chief Justice, having placed himself on a high throne in the Archbishop's palace, called both the prisoners before him, and, without indictment, or form of trial, con- demned them both to be beheaded. The sentence was immediately carried into execution.* "When the Par- liament was afterwards called upon to ratify this proceeding, the Lords said it demanded inquiry and deliberation ; and the matter was thus laid at rest for ever.f It is pleasing to reflect that Fulthorpe was disappointed in his hope of promotion, and that the virtuous Chief Justice continued to hold his office with increased reputation. J Still enjoying the confidence of the King, Gascoigne was employed by him "to treat and com- pound with, and oiler clemency to, the ad- herents of the Earl of Northumberland ; likewise to fortified with a commission of array, visitation of Heaven upon him for the ■which ptnpowcrpd him to raise forces in violent death of the Archbishop; while the northern Counties. The autliority to Judge Gascoigne received many b'.css- press into the service, extends to "per- inps for refusing to be concerned in this sons of what state, degree, or condition sacrilege. — Stow's Annals, fol. 333; whatsoever."— «ym. /■Vrti. vol. viii. 319. Mayd. Hist. Marty.; Richard Scrope, * Ryraer's Feed. voL viii. 319. Ang. S;\c. vol. ii. 370. t A leprous disea.>^e, which soon after J Rot. Pari. III. COG, viii. 605; Wals. BttaclLed the King, was supposed to bo a 373 ; Hall, il. 310. L 2 148 EEIGN OF HENEY lY. Chap. III. receive their fines, and pay them into the Exchequer."* At last, all the attempts of the discontented Barons were effectually defeated, and Henry's throne was as firmly established as if it had been based on hereditary right. His chief anxiety now arose from the irregularities of his son, the Prince of Wales, who, having distin- guished himself by military skill and bravery in the early part of the reign, had subsequently abandoned himself to dissipation, and had consorted not only with buflbons, but with persons accustomed to minister to their profligate expenses by forced contributions from travellers on the highways. These excesses led to an event which drew great applause upon the Prince himself, on the King, 'and still more on Lord Chief Justice Gascoigne. But I must begin by showing that this is not a poetical fiction. Formerly, everything recorded by historians was believed ; now, everything is denied or doubted ; and the fact of the commitment of the Prince of Wales, afterwards Henry V., to the King's Bench prison, long considered as authentic as his Story of bis victory at Agincourt, has lately been re- the Prince of fcrrcd to the Same class of narrative as the priL^irV- landing of King Brute after the siege of ^authentic? ^roy, or the exploits of King Arthur and the Knights of the Eound Table.f The only ground on which this scepticism rests is, that the story cannot be pointed out in any written composition given to the world till rather more than a century after Sir William Gascoigne's death. The ob- jection would have been very strong, if, in his life- time, there had been newspapers, magazines, annual registers, and memoirs, detailing all the proceedings of courts of justice, and all the occurrences of political * Rymer's Foed. vol. viii. 520. f See Tyler'sLife of Henry V., vol. i. c. 16. A.D. 1410 — 1412. A.D. 1412. CHIEF JUSTICK GASCOIGNE. 149 and private life, -wliicli can be interesting to any class of readers. Even in that case, a little consideration should be had of the probable nnwilliur^ness to j)ro- olaim to all mankind anecdotes discreditable to the heir apparent; and certainly several respecting George IV. when Prince of AVales, which have not as yet ap- peared in print, have been circulated in society, and may hereafter be related by grave historians. But during the fifteenth century, — although, from the Close Eoll, the I'ell Hull, and the Parliaiaent Eoll, we have minute information of the appointment of judges, the assembling and prorogation of parliaments, and other such matters as were considered " of record," — many interesting events, the universal subjects of conversa- tion when they occurred, long rested on tradition, and were orally transmitted by one generation to another, till a chronicler arose, who embraced the period to which they Avere ascribed, and who related * them substantially as they liappened, although he might be chargeable with some inaccuracy or exag- geration. The first book in which there is an account of the imprisonment of Henry the Prince of "Wales ^^^^^^ ^ . by Sir W. Gascoigne was lu'inted in the vear «''"« firet •: , • X • -4. n ' mentioned. loo4; but no intervening writer could rea- sonably have been expected to relate it. We should remember that, during a great portion of this period, literature, which had made wonderful progress for half a century before, Avas nearly extinguished by the War of the Koses, and that Sir Thomas More's History (ascribed by some to Cardinal Morton), the only his- torical work in the English language previously pub- lished, begins with the reign of Edward V. Sir Thomas Elyot, who thus narrates the transac- tion in his work entitled " The Goverxor," dedicated to King Henry VIII., was no romancer, but introduces 150 KEIGN OF HENRY IV. Chap. III. it as a true statement of facts, among other historical anecdotes which cannot be questioned : — " The moste renouned prince king Henry the fyfte, late kynge of Englande, durynse the lyfe of his father, was noted lated by Sir to be fiers and of wanton courage : it hapned, that Thomns one of his seruauntes, whom he fauoured well, was, ^'^^' for felony by him committed, arrained at the kynges benche : whereof the prince being aduertised and incensed by lyghte persones aboute him, in llirious rnge came hastily to the barre where his seruante stode as a prisoner, and commavmded him to be vngyued and set at libertie : whereat all men were abashed, reserved the chiefe Justice, who humbly exhorted the prince to be contented, that his seruaunt mought be ordred, accordynge to the aunciente lawes of this realme : or if he wolde haue hym saued from the rigour of the lawes, that he shulde obteyne, if he moughte, of the kynge his father, his gratious pardon, wherby no lawe or justycc shulde be derogate. With wliiche answere the prince nothynge appeased, but rather more inflamed, endeuored hym selfe to take away liis seruant. The iuge considering the perillous example and inconuenience that mought therby ensue, with a valyant spirite and courage, com- manded the prince v^ion his alegeance, to leave the prisoner, and depart his way. With which commandment the prince being set all in a fury, all chafed and in a terrible maner, came vp to the place of iugement, men thynking that he wold haue slayne the iuge, or haue done to hjm some damage : but the iuge sittynge styll without mouing, declaring the maiestie of the kynges place of iugement, and with an assured and bolde coun- tcuaunce, had to the prince these wordes foUowyng : " ' Syr, remembre yourselfe, I kepe here the place of the kyng your soueraine lorde and father, to whom ye owe double obe- dience : wherfore eftsoones in his name, I charge you desystc of your wylfulnes and vnlaufuU enterprise, & from hensforth giue good example to those, whyche hereafter shall be your propre subjectes. And nowe, for your contempte and disobedience, go you to the prysone of the kynges benche, wherevnto I commytte you, and remayne ye there prysoner vntyll the pleasure of the kynge your father be further knowen.' " With whiche wordes being abashed, and also wondrynge at the meruaylous gravitie of that worshypfuUe justyce, the noble prince layinge his weapon aparte, doying reuerence, departed, and wente to the kynges benche, as he was commanded. Wherat his servauntes disdaynynge, came and shewed to the kynge all the hole affaire. Whereat he awhyles studyenge, after as a man A.I). 1412. CHIEF JUSTICE GASCOIGNE. 151 all rauyshed with gladnes, hoUlyngo his eien and haiules vp to- ^v.'^r(le heuen, abraided, saying witli a loude voice, ' O uicrcil'iill God, bowc moche am I, alx)ue all other men, bounde to your infinite goodnes, specially lor that yo haue gyuen me a iuge, who fearoth nut to minister iiistycc, and also a sonne, who cau sufl're semblably, and obeyc iustycc ! '" Hall, whoso Chronicle was puLH.shccl at the com- mencement of the reign of Edward "\'I., gives another version of the story, varying as to some particulars — in the same manner as he might vary from other writers in relating the Battle of Bosworth. Says he — '* For imprisonment of one of his wanton mates and unthrifty playfaires, the Prince strake the Chief Justice with his fist on his face ; for which offence ho was not only committed to streight prisone, but also of his father put out of the privie council and banished the court."* I next call as witnesses two lawyers, very dull, but very cautious, men, Sir liobert Catlyne, Chief Justice of the King's Bench, and Sir John AVhiddin, a Puisne Judge of that Court, in the beginning of the reign of Queen Elizabeth, who, sticking to the Yeak-Books, probably had never read either Elyot or Hall, and who knew nothing of Gascoigne except by the smx' tra- ditions of Westminster Hall. Crompton, an accurate juridical writer, who then published a book entitled " Authoritie et Jurisdiction des Courts," in reporting a decision of the Court of King's Bench, says, — " Whidden cites a case in the time of Gascoigne, Chief Justice of England, wlio committed the Prince to prison because he would have taken a prisoner from the bar of tlie King's Bench ; and he, very submissively obeying him, went thither, according to order : at wliich the King was highly rejoiced in that he had a Judge who dared to minister justice upon his son the Trince, and that he had a son who obeyed him." • 4th cd. p. 46. 152 KEIGN OF HENKY IV. Chap. III. Catlyne C. J, is then represented as assenting and rejoicing in the praises of his predecessor.* The drama making rapid progress, and historical plays coming into fashion, there was soon ^^thfstoge. ^f*6i' produced a very popular piece, with the title of " Henry the Fyfte, his Victories, containing the honorable battle of Agincourt, &c." The first act exhibits many of his pranks while he was Prince of Wales, with the scene between him and Chief Justice Gascoigne. The author follows Hall in supposing that a blow had actually been inflicted, — which I make no doubt was an exaggeration. Of one of the representations of this play we have a very amusing account in a book entitled " Tarleton's Jests," published in the reign of James I. The famous co- median of that name, who died in 1592, had been long the delight of the public in the part of the " Clown," — disregarding the precept to " speak no more than was set down for him." But, though this was his forte, he could, on a pinch, take a graver character, and personate a Ghost or a Judge. It so hapj^ened that when " Henry the Fyfte " had drawn a crowded house, it was discovered that Lord Chief Justice Gascoigne had got so excessively drunk that he could not take his place upon the bench, and Tarleton agreed to " sit for him," still retaining his own part of the Clown, who, luckily, was not to aj)pear in the presence of his lordship. The author, after intimating the difficulty into which the company had been thrown, and the ex- pedient resorted to, thus proceeds :— '' In this pLay the judge on the bench was to receive a blow of Prince Henry, who was represented by one Knoll, another droll * 4th ed. 1594, p. 79. "Whidtlen luy obey humblement, et ala auxi a sou vouche un case en temps Gascoign Chief commandment ; in que le Roy graiide- Justice D'Englitierr, que commit le ment rejoice in ceo quil avoit Justice que Prince (que voile aver pris un prisoner osast minister justice a son fits le Prince del barre in Banco Regis) al prison ; que et que il avoit Fits que luy obey." A.D. 141-'. CHIEF JUSTICE GASCOIGNE. 153 comedian of those times ; and, when it was to be done, he struck the Chief Justice Tarlton sucli a swinging box on the car as almost felled him to the ground, and set the whole house in an uproar of meiTimcnt. When ' Tarlton the Judge ' went oft", prc- sentl)' after entered ' Tarlton the Clown ;' and, according to that liberty wherewith the players in those days were indulged, of intruding interrogatories of their own in the midst of their acting, he very simply and unconcernedly asked the occasion of that laughter, liUe one who was an utter stranger to it. '0,'said another of the actors, ' hadst thou been here thou hadst seen Prince Henry hit the Judge a terrible bo:c on the ear.' ' What ! strike a Judge ! ' quoth Tarlton. ' Nothing less,' said t'other. 'Then,' replied lie, 'it must be terrible to the Judge, since the very report of it so lerrilies me, that methinks the place remains so fresh still on my cheek that it burns again.' This, it seems, raised a greater acclamation in the house than there was before ; and this was one example of that extempore wit or liumour for which Tarlton was so much admired and remembered many years after his death." The case Avhich I advocate is, I think, materially strengthened by the evidence of William SiiAKSPEARE, who, in his historical plays, al- story is^ though very careless about dates, is scnipu- ^hak^care. lously accurate about facts, and never intro- duces any which do not rest upon what he considered good authority ; insomuch that our notions of the Plantagenet reigns are drawn from him rather than from Hollinshed, Eapin, or Hume. On the faith of tradition, or of books which he had read, he evidently had in the truth of the story a strong belief, which is constantly breaking out. Thus, when the Chief Justice is first seen at a distance, Falstaif 's page says, " Sir, here comes the nobleman that committed the Prince for striking him about Bardolph."* Again, on news arriving of the death of Henry IV., we have the following dialogue : — Ch. Justice. " I would his majesty had called me with him : The service thsit I truly iliil his life Hath left uic open to all injuries." • Second Part of Ifenry IV. act 1. sc. 2. 154 KEIGN OF HENRY IV. Chap. HI. Warwick. " Indeed, 1 tliink the young King loves you not." Ch. Justice. " I know he doth not ; and do arm myself To welcome the condition of the time ; Which cannot look more hideously upon me Than I have drawn it in my fantasy. Sweet princes, what I did 1 did in honour. Led by the impartial conduct of my soul ; And never shall you see that I will beg A ragged and forestall'd remission. If truth and upright innocency fail me, I'll to tlic King my master that is dead. And tell him who hath sent me after him." When the Prince enters, as Henry V., he thus ad- dresses the Chief Justice : — " You are, I think, assur'd I love you not." Ch. Justice. " I am assur'd, if I be measur'd rightly. Your Majesty hatli no just cause to hate me." King. " No ! How might a prince of my great hopes forget So great indignities you laid upon me ? What ! rate, rebuke, and roughly send to prison The immediate heir of England ! Was this easy ? May this be wash'd in Lethe, and forgotten ?" Ch. Justice. " I then did use the person of your father ; The image of his power lay then in me : And, as you are a king, speak in your state. What I have done that misbecame my place. My person, or my liege's sovereignty." King. " You are right, .lustice, and you weigh this well ; Therefore, still bear the balance and the sword : And I do wish your honours may increase. Till you do live to see a son of mine Offend you, and obey you, as I did." * It was imagined that the authority of Sha.kspeare on this question was demolished, and a great triumph was claimed over him by the assertion that Sir William Gascoigne at this time could not feel any apprehension of the earthly consequences of any deed he had done in the body, as he was sleeping in his grave, having died some months before his patron, Henry IV. ; but I shall hereafter prove to demonstration that Sir William Gas- coigne survived Henry IV. several years, and actually filled the office of Chief Justice of the King's Bench under Henry V.f * Second Part of Henry IV. act. v. so. 2. his father'.s death on the 20th of March, -|- Henry V., having become King by 1413, was crowned on the 9th of April A.D. 1412. CHIEF JUSTICE GASCOIGNE. 155 In tho same reckless spirit of questiouiug wliat has long been taken for implicit trutli, several who were not bold enough to deny that ilenry Y., when Prince of Wales, was committed to prison, have denied the honour of the act to Sir ^Villialu Gascoigne, j.(,j.mjjtion oi and have started other candidates for it. tiic tiaims of mi -r-v • 11 1 1 • 1 1 1 • Other Judges. The " Devonians, who think that nothing great or good can have been done in England unless by a "worthy of Devon," taking advantage of the language of chroniclers, who trusting to the noto- riety of tho story, mentioned the judge only under the designation of tho " Chief Justice," claim the commitment of the I'rince of "Wales for two of their countrymen, Chief Justice Ilaukfurd and Chief Justice Hody.* When I hear of high Devonian pretensions, I confess 1 am reminded of the celebrated saying of Serjeant Davy, that "the oftener he went into the West, he better understood how tho Wise Men came from the East." In this instance it is quite certain that the pretension proceeds on gross ignorance and carelessness, for bir William Haukford was not ap- pointed Chief Justice of the King's Bench till some time after Henry V. had actually been on the throne, and (better still) Sir John Ilody was not appointed Chief Justice of the King's Bench till many years after Henrj' V. had been in his grave, viz., the eighteenth year of the reign of his son and successor, Henry VI. | following; and all historians, chroniclers. Elm. IC. Trussell's Continuation of and biogniphers, agree that the following I)aniel introduces Gascoigne's name, and day, when his council was swoni in (for makes Henry, after relating the commit- still tho Kings ol England were not con- ment, thus conclude: " For which act of sidered as fully entitled to rule before justice I shall ever bold him worthy of their coronation), he made a speech in the place and my favour, and wish all which he renounced his former lewd my judges to have the like undaunted companions, he forgave his father's coun- courage to puni.sh offenders of whatever cillors who h.id offended him by trying rank." — Cited in Fuller's Worthies, 505. to correct his faults, and he reappointed * I'rince's Worthies of Devon; Eia- such of the judges tis had best done don's Worthies of Devon, their duty, and wore most In his father's t Dudgd. Chron. Ser. confidence.— Sie Wals. 382 ; Otturb. 273 ; 156 ItEIGN OF HENKY IV. Chap. III. The same impossibility does not stand in the way of a claim set up for Sir John Markham by his descend- ants, on the strength of some supposed family papers which have not been communicated to the public. He was a Chief Justice from the 20th of Eichard II. to 9th Henry IV. ; but then he was Chief Justice of the Common Pleas, and, although the commitment is sometimes said to have been to the Fleet — the prison of that Court — it is quite clear that no arraignment of Bardolph, or any other associate of the Prince, could have taken place in the Court of Common Pleas, which has cognizance only of civil actions.* I think I am now fully entitled to ask for a verdict in favour of my client. Sir William Gascoigne. For the honour of the profession to which I am proud to belong, I do feel anxious to establish the fact which has been taken for true by so many chroniclers, his- torians, moralists, and poets. There was here no official insolence, or strain of Merit of Sir jurisdiction, for the sake of gaining popu- w. Gas- larity. Independently of the bloto, which this trans- may be safely disbelieved, as inconsistent action. ^vith the generoiis feeling by which Henry was actuated in his wildest moments, — he had insixlted the first Criminal Judge, sitting on his tribunal, — and he had no privilege from arrest beyond that of a peer — which did not extend to such an enormity. But there had been no precedent, in the history of this or any other European monarchy, of a Temporal Judge, with delegated authority, for an insult offered to him- self, sending to gaol the son of the Sovereign, who must himself mount the throne on his father's death, — to be detained there in a solitary cell, or to associate * Baker's Chronicle says, tbattlie com- the Prince's servant, which gave rise to mitment was to the Fleet, but at the it, was at the King's Bench bar. same time says that the arraignment of A.n. UIJ. CHIEF jrSTICK GASCOIGXE. l-'>7 with common malefactors. "We must remember that Gascoigue hckl his office during pleasure, and that, while by this act there soeiucd a certainty of his being dis- missed, and made an object of royal vengeance, on a demise of the Crown, — there was a great danger of his incurring the immediate resentment of the reigning Sovereign, who might suppose that the divinity which ought to liedgo the blood royal liad been profaned. Every thing conspires to enhance the self-devotion and elevation of sentiment which dictated this illustrious act of an English Judge ; and the noble independence which has marked many of his successors may, in no small degree, bo ascribed to it : — " While dauntless Cascoigne, from the judgment-seat, To justice does make princelj- |>oii'er submit. Dares tame by law him who all laws could break. And to a hero raise a royal rake : While we such precedents can boast at home. Keep thy Fabricius and thy Cato, Rome !" • Shakspeare, who, although adhering to substantial facts, in dramatising English history, never minds anachronisms, even with respect to events that had happened very shortly before his own time f, represents the commitment of the Prince of "Wales by Chief Justice Gascoigne to have been before the insurrection led by Archbishop Scrope in the year 1405 ; but other arthorities place it, with more probability, in the latter part of the reign of Henry IV., Avheu the Trince had taken to dissolute courses from want of public employ- ment, and had been dismissed from the Privy Council, — making way for his graver In-other John, t "We do not read of any other remarkable achieve- ment of the Chief Justice, except as a ^^ij^ ^viuiam law reformer. There were heavy complaints oascoigne's ',..,, law reforms. in the House of Commons — which have * See Biog. Britan., title " Gascoigne." J See Hume, vol. iii. p. 86; Lingard, t The play of King Henry Vlll. vol. Iv. 319, vol. v. 2. abounds with them. 158 EEIGN OF HENRY IV. Chap. III. continued clown to onr time — that exorbitant fees were levied upon litigants by tlae officers of the different Courts. In consequence, Gascoigne instituted an in- quiry upon the subject, and, with the concurrence of the other Judges, published a table of such fees as might be legally demanded.* A more general griev- ance was stated to be the multiplication of attor- neys. In the reign of Edward I. there were only 140 in all England, and their number now exceeded 2000. This was a proof of increasing population, wealth, and civilisation; but a general cry arose " that the people were pilled by barrators and pettifoggers ;" and there was, no doubt, a want of regulations to prevent the admission of improper persons into the profession, and to punish those who acted discreditably. To meet these evils. Chief Justice Gascoigne framed a statute, which was adopted by the legislature, — whereby attorneys were subjected to an examination before they were admitted; and, if con- victed of any fraud, " should never after be received to make any suit in any Court of the King."t He likewise, with the assent of his brethren, promulgated a rule of Court that attorneys should be sworn every term " to deal faithfully, and make their ransom to the King's will," Besides administering justice to the parties who came regularly before his tribunal by judicial process, Gascoigne followed a practice which continued in use * Cotton's Records, p. 409. deignez est et establiz que toutz les at- t 4 Hen. IV. c. 18. The preamlile tournees soient examinez par lez Jus- (no doubt drawn by Gascoigne) affords a tices.'' &c. curious specimen of legislative language Till tbe stat. West. 2, c. 10, allowing in those days :— " Item pur pleusours attorneys to be made to prosecute and damages et meschiefs quont advenuz defend an action, every suitor wa.s devaunt ces heures as diverges gentz du obliged to appear in person, unless by Roialme par le grant nombre des attour- special licence under the King's letters nees nient sachantz naprises de la loye patent. — 3 Bl. Com. 26. come ils soloient estre pardevant; or- A.D. 1412. CHIEF JUSTICK GASCOIGNE. 159 among Judges of the highest rank, down to tho time of Sir Matthew Hale, in tho reiffn of Charles IT., . . A.l». 1-112. of settling differences privately by arbitra- tion, on the voluntary snlmiission of the parties. Wo are minutely informed of the circnmstances of one case thus referred to him, illustrating graphically tho man- ners of tho age : — "William Lord Rocs complained to the King of Sir Robert Tlicrwit, a Puisne .TiKlt;e of the KiniJi'.s Bench, for not only unjustly rieprivin;j; him of certaiu lands in the Curious caae county of Lincoln, but for lying in wait with 500 men '^^^^^^ to seize and ill use him. Sir Uobert confessed his urbitrator. fault in using such violent means to assert his ri^lit, and offered to abide by the order of two Lords of the com- plainant's own kindred as to the mode of settlinc^ the disi)Ute. They enjoined Sir Robert to make a ^rreat feast at Melton Ic Roos, the scene of the riot ; that he should prepare two fat oxen, twelve sheep, two tuns of Gascogny wine, with other suitable provisions, and then assemble thither all such knights, esquires, and yeomen as had been his accoraiiliccs ; that they should confess their misbehaviour to the Lord Roos, crave his pardon, and make him an offer of 500 marks in recompcnce ; that the Lord Roos should refuse their money, but jtardon them, and partake of their dinner in token of his reconciliation; aiid that the title to the land should he settled by that learned and revered Jud(je, Sir William Gascoigne. We are not told what his award was; but we need not doubt that it did ample justice between the parties." * Having narrated all that I find interesting in the life of Lord Chief Justice Gascoigne, I have only to discuss the controverted question Refutation of • 1 • r»i- 1 -i-nm the assoition respecting the time of his death. Fuller that he died (generally a trustworthy authority) fixes it of iiciirj-'Tv. on Sunday the 17th day of December, 1412, — vouching an inscription on the Judge's tomb ; — and this date was long considered as irrevocably fixed, — writer after writer pointing out the flagrant violation of history by Shakspeare, in bringing the deceased • Cotton's Records, anno 1411. 160 EEIGN OF HENEY IV. Chap. III. Chief Justice on the stage along with King Henry V., and recording a dialogue between them.* But a difficulty arose from the 1 7th of December, 1412, having fallen not on a Sunday but on a Saturday. Then came a discovery, that in the summonses for a new parliament issued by Henry V. on the 22d of March, 1413, the day after he was proclaimed King, is found one to " Sir William Gascoigne, Knight, Chief Justice of our Lord the King, assigned to hold pleas before our Lord the King before the King himself." But as his name is not mentioned in the roll of the proceedings of the House of Lords, when Parliament met in the month of May following, it was supposed that this summons must be a mistake ; and an assertion was made, that Sir William Hankford, his successor, had previously been appointed Chief Justice. Some who could not believe that the date 1412 was right, carried it on to 1413, when the 1 7th of December did fall on a Sunday ; but still insisted, that Gascoigne never was Chief Justice of the King's Bench under Henry V., and that, being displaced on the demise of Henry IV., the story of his having committed the Prince of Wales to prison could receive no confirmation from the dialogue at his sup- posed reappointment. The matter, however, has been placed beyond all doubt by the discovery of the Chief Justice's His will. , .y, -,,,,. ,1 . , n last will and testament, m the registry ot the Ecclesiastical Court at York. It bears date, accor- ding to the mode then in fashion of computing time, which Puseyites wish to revive, on " Friday after St. Lucy's Day, a.d. 1419." St. Lucy's Day that year fell on Wednesday, 1 3th of December ; and, consequently, the will was made on Friday, the loth of December. Probate was granted on the 23d of the same month. Conse- quently, the Chief Justice must have died on the 17th of * See Gentleman's Magazine, vol. xi. y. 516. A.n. 1412-10. CHIKF JUSTICE GASCOIGNE. 161 December, 1410, wliich was that year again on a Sunday. The testator declares, that he was "weake in bodio, thoiigli of soiinde and disposing niinde and understanding."* We niu.st, therefore, inevitably come to the conclu- sion, that Sir \\ illiam Gascoigne did survive Henry IV., that he was reappointed by Henry V., and that he was summoned as Chief Justice of the King's Bench to the first parliament of that monarch. The probability is, that soon afterwards, either being struck by some disease, or weakened by the infirmities of age, he voluntarily resigned his office, and spent his last years in retirement, preparing for the awful change which awaited him. On withdrawing from the Tjcnch, he must have carried with him the respect of the profession and the public : and we know that he was still treated with courtesy and kindness by his young Sovereign ; for there is now extant a royal warrant, dated 28th November, 1414, the year after his retirement, granting to " our deare and well-beloved William Gascoigne, Knt., an allowance, during the term of his natural life, of four bucks and four does every year out of our Forest of Pontifraet."t He had an ample patrimonial estate to retire upon ; and to such an extent had he increased his riches, that he lent large sums of money to the King. J He was buried in the parish church of Harwood in Yorkshire, near Gawthorp. * He diK>s not desipmate himself as — See Tyler's Life of Henry V. vol. i. " late Chief Justice," but the identity of p. 376. the testator with the Chief Justice is f See Tyler's Life of Henry V. vol i. placed beyond all doubt by his mention p. 379. of different members of his family, and + The PeU Roll, 14th May, 1420, particularly of his two wives; the latter within half a year of his deatli, states of whom was then alive, and in her will, the repaj-ment to his e.xecutors of a sum subsequently made and preserved in the which he had advanced without security same register, styles herself " widow of to the Royal Exchequer. William Gascoyne, late Chief Justice." VOL. I. M 162 REIGN OF HENRY IV. Chap. III. A tomb was afterwards erected tliere to his memory, which represents him in a kneeling posture, Md epitaph ^^ ^^^ Judge's robes, with a large purse tied to his girdle, a long dagger in his right hand, and his wives kneeling on either side of him.* A brass plate, affixed to it, bears an inscription, of which the following words are still legible : — " Orate pro Gulielmo Gascoyne et Elizabethe et JohannaB uxoribus egus Hie jacet Gulielmus Gascoyne nuper Capitalis Justiciar, de Banco Henrici nuper Regis Angl. Obiit Die Dominica 17 Dec. a. p. ."f The rest of the brass plate is wanting, and is said to have been torn off by one of Cromwell's soldiers during the civil wars. His wife Elizabeth was the daughter and sole heiress of Sir Alexander Mowbray, of Eutlington, in the county of York ; and his wife Joan was the daughter of Sir William Pickering, and relict of Sir Ealph Greystoke, one of the Barons of the Exchequer. By both of them he had a numerous issue ; and several great families, still flourishing, trace him in their line. His eldest son. Sir William Gascoigne of Gawthorpe, was one of Henry V.'s best officers, and gained high distinction, not only in the Battle of Agincourt, but in the subsequent campaigns of Bedford and Talbot. I must confess that I am proud of Sir William Gascoigne as an English Judge, and reluctant to bid him adieu for others of much less celebrity and much less virtue. * There is a good portrait of him from p. 623, professes to give this inscription, the monument, in the Gt;ni^enian.'s Jfa- but interpolates, after "a. p.," "1412, gazine, vol. xli. p. 5G6. 14 Hen. Quatre." f The Gentleman's Magazine,'vo\.'sXi. A.o. 1413. CHIEF JUSTICE IIANKl-OKI). 163 CIIAPTEK IV. CHIEF JUSTICES TILL THE APPOINTMENT OF CHIEF JUSTICE FITZJAMES BY KING IIEXRY VIII. Sir Williasi Hankford, the next Chief Justice of the King's Bench, altliough ho was eminent in the law during three reigns, is hardly recollected for anything he did in his lifetime, except the ingenious and suc- cessful manner in which he plotted his own death. He is one of the " Worthies of sir wiiiiam Devon" for whom his countrymen claim the merit of having committed the Prince of Wales to prison ; and he certainly was horn at Amerie in that county, whatever may be the share of glory which he confers upon it. Till the termination of his career, all that I can relate respecting him on authentic testimony is, that he was called serjeant in the 14th of Richard II., was made a Puisne Judge of the Common Pleas in 21st of Kichard II., was promoted to be Chief Justice of the King's Bench in 1st of Henry V.,* and was reappointed to that office in 1st of Henry vi.t He had been a well-conducted man, but he was of a melaucholv temperament, and he became „. . ' ■*■ His in- tired of life, notwithstanding the high posi- genious tion which he occupied, and the respect in • There is some doubt as to the exact December, 1413, for on that day writs date of this promotion. It must have were issued for a new parliament to been subsequent to 2'ind March, 1413, meet on the 29th. lanuarj- following, and when Henry V. issued writs for his first to this Sir William Hankford is sura- parliament, to which .Sir William Gas- moned as Chief Ju.stice. coigne was summoned ; and prior to 1st t Uugd. Chr. Ser. M 2 164 EEIGN^ OF HENEY VI. Chap. IV. whicli lie was held. He wished to shuffle off this mor- tal coil, hut he was afraid to commit suicide in any vulgar way, at a time when a verdict of felo de se always followed such an act, and the body of the supposed delinquent was huried in a cross road with a stake thrust through it. He at last resorted to this novel expedient, by which he hoped not only that the for- feiture of his goods would be saved, but that his family would escape the anguish and the shame arising from the belief that he had fallen by his own hand. Several of his deer having been stolen, he gave strict orders to his keeper to shoot any person met with in 1442.^*^^" or near the park, at night, who would not stand when challenged. He then, in a dark night, threw himself in the keeper's way, and, refusing to stand when challenged, was shot dead upon the spot. " This story " (says Prince, the author of Wor- thies OF Devon*) " is authenticated by several writers, and the constant traditions of the neighbourhood ; and I, myself, have been shown the rotten stump of an old oak under which he is said to have fallen, and it is called Hankford's Oak to this day." His monument stands in Amerie church, with the following epitaph inscribed upon it : — His monu- ment and epitaph. " Hie jacet Will. Haukford, Miles, quondam Capitalis Justiciarius Domini R. de Banco, qui obiit duodecimo Die Decembris Anno Domin. 1422." His figure is pourtrayed kneeling ; and out of his mouth, in a label, these two sentences proceed : — 1. "Miserere mei Deus, secundum magnam misericordiam tuam!" 2. "Beati qui custodiuut judicium et laciuut justitiam omni tempore." Fuller, in a true Christian spirit, adds : " No cha- ritable reader, for one unadvised act, will condemn his * Page 362. A.I). 1422-42. CHIEF JUSTICE FORTESCUE. IGo memory, who, when liviiip;, was halnted -witli all rc- quisites for a person of liis place."* During the reign of Ilcnry V., the nation, intent on the conquest of France, paid little attention to the ad- ministration of justice or domestic policy, and for the first twenty years of the reign of Henry VI. the office of Cliief Justice of the King's l>ench continued to be held by very obscure men, — Sir William Cheyne.t Sir John Ivyn,J ;uu\ Sir John rhTerius- Hody,§ — who seem decently to have dis- J_'^^«^ f'^scd charged their judicial duties, without gaining distinction either by decisions or law reforms, and without mixing in any of the political struggles which agitated the country. The reader \vill therefore will- ingly excuse me from in(iuiring into their birth, their education, their marriages, and their places of sepulture. Next comes one of the most illustrious of Chief Jus- tices, Sir John Fortescue,|| for ever to be had in remembrance for his judicial integi-ity, sir.iohn and for his immortal treatise De Laudibvs *'"'^'^'*<^"<^- Legvm Anglle. But, as ho held the Great Seal of England while in exile, although he never filled the " marble chair " in Westminster Hall, I have already sounded his praise to the best of my ability in the Lives of the Chancellors.IF He held the office of Chief Justice above twenty years with universal applause. During the latter half of this period the AVar of the Eoses was raging ; and he, being a devoted Lancastrian, not only sat in judgment on Yorkists when indicted before him, but • Fuller, i. 281. Ho-ion of trea- son. Of this last ofltncc the })ri.soner 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 Maikham, notwitlistand- ing his high pretensions to loyalty, was himself little better than a traitor, ordered that he should never sit on the bench anv more : and an- Heisdjs- , " ' , 1^ mis*'ii from pointed m his place a successor, who, being i"'* "fti«- a jiumie, had wished to trip iip the heels of 1470. 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 re- spect changing his principles, or favouring the move- ment which for a season restored Henry VI. to the throne after ho had been ten years a prisoner in the Tower. Fuller says, " John jNIarkham, being ousted of his Chief Justiceship, lived privately but plentifully the remainder of his life, having fair lands by his mar- riage with an heiress, besides the estate he acquired by his practice and his paternal inheritance." The ex-Chief Justice died some time after the resto- ration of Edward IV., and was buried in nis death. Markham church, a gravestone being placed over his remains, with this simple inscription : — " Orate pro anima Johannis Markham Justiciarii." • Stow says that he lost his office reign of Henry IV., but it is quite clear throuph the Lord Rivers and the that neither of tliem toolc place before Duchess of Bedford : p. 420. Markhani's him. — See ISt. Tr. 894; 1 Hole's Pleus dismissal has been connected with two of Crown, 116. otlier cflebrated trials for treason iu the 170 EEIGN OF EDWARD IV. Chap. IV. For ages after his death he was held up as the pat- His cha- tern of an upright judge. Thus Sir Nicholas racter. Throckmorton, when tried before Lord Chief Justice Bromley, in the reign of Elizabeth, said, — " I would you, my Lord Chief Justice, should incline your judg- ments rather after the example of your honourable predecessors, Justice Markham and others,which did eschew corrupt judgments, judging directly and sincerely after the law, and in principlesin the same, than after such men as, swerving from the truth, the maxim, and the law,did judge corruptly, mahciously, and affectionately."* 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 fight- ing 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 Sik Thomas Billing!™''^ 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 be 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 emi- nence by a moderate share of learning and talent, and an utter want of principle and regard for consistency. His family and the place of his education are un- Hi8 obscure knowTi.| He was supposcd to have been the origin. clerk of an attorney ; thus making himself well acquainted with the rules of practice, and the * 1 St. Tr. 894. both as to his ancestors and descendants, + Fuller says that he was born in and is evidently ashamed of introducing Northamptonshire, and held lands at such a character among " Worthies." AehweU in that county; but is silent A.D. 1450. CHIEF JUSTICE BILL I Xa 171 less repntaljlo parts of the law. irowevcr, ho con- trived (wliich must have been a difficult niatter in those days, "when almost all who were adn)itted 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 considorable business, althotxgh not of the most creditable description ; and *"^' in due time he took the degree of the coif. His aml)ition grew with his success, and nothing would satisfy him but official preferment. „ ' '■ .He starts as Now began the grand controversy respecting a L^mcas- 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 outrageouslj^ loyal. He derided all objections to a title which the nation had so often solemnly recognised ; 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 Con- tinental 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 Eichard II., or to depose him for the crimes he had committed and to ciill to the throne the member of the royal family most worthy to fill it according to the fashion of "fnp-r*''^ our Saxon ancestors, should be proceeded ^"^eant. against as traitors." This so pleased Wayn- flete the Chancellor, and the other Lancastrian leaders, 1 72 HENRY VI. AND EDWARD IV. Chap. IV. that Billing was thei-eupon 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 till after the fall of Duke A.D. 1461. Eichard, when the second battle of St. Alban's u>\hT^ °'^®'" had placed his eldest son on the throne. In- Yorkists. stantly Sir Thomas Billing sent in his ad- hesion ; and such zeal did he express in favour 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 John Fortescue and the principal Lancastrians, his patrons, were attainted, and the three last reigns were pronounced tyrannical usurpations. He likewise took an active part in the measures by which the per- severing efforts of Queen Margaret to regain her as- cendency were disconcerted, and Henry VI. was lodged a close prisoner in the Tower of London. Sir John Markham, the honourable and consistent Yorkist, now at the head of the administration of the criminal law, was by no means so vigorous in con- victing Lancastrians, or persons suspected of Lancas- trianism, as Edward and his military adherents wished ; and when state prosecutions failed, there were strong murmurs against him. In these Mr. Serjeant Billing * Lives of Chancellors, vol. i.cb.xxii. A.D. UG3. CHIEF JUSTICE BILLING. 173 joined, snr^gestinj^ how much better it wouhl he for the pnlilic trau Kings . Bench. generally thought that the new Chief was not only wanting in gravity of moral character, but that he had not sufHcient professional knoAvledge for such a situation. His highest quality was dis- cretion, 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 Kathcrine of Aragon, was consideretl to depend entirely on the canon law, and he was not called upon Oct. 1529. to give any opinion upon it. He thus quietly discharged the duties of his ofl&ce till AVolsey's fall. But he then experienced much perplexity. Was he to desert his jiatron, or to sacrifice his jdace? He had an exaggerated notion of the King's duct on*^the"' vengeful feelings. The Cardinal having been ^y^f^y not only deprived of tho Great Seal, but banished to Eshor, and robbed of almost the whole of his property under process of prcBmunire, while an im- peachment for treason was still threatened against him, — the Chief Justice concluded that his utter destruc- tion was resolved upon, and that no one could show him any spnpath}' M-ithout sharing his fate. There- fore, instead of going privately to visit him, as some • Pat. 13 Henry VIII. p. 2. f Pat. 17 Henry VIII. Rot. 1. 192 EEIGN OF HENEY VIII. Chap. V. 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 Coi;rt 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 everything ; and Shelley, a Puisne Judge, was deputed to make the jDi-ojiosal 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. up ll-8 accusation A.D. 1529. CHIEF JUSTICE FITZ JAMES. lO.'J Accordingly, wIr-u piirlianicnt mot, and a select com- mittoo of the House of Lords was a})pointed ^^^ ^ to draw nj) articles of irnjit'achmeut against Kit/jamcs bb- Wolsey, Cliief Justice Fitzjaiiies, altliuugh arlwinR only summoned, like the other Judges, as an th'^ amcirs assessor, was actually made a member of the »Ki''i»t . . . Wol.scy. committee, joined in their delilx-rations, ami signed their report.* Some of tlio Artieh-s drawn by him indicate a pre-existing envy and jealousy, which ho had concealed by flattery and subserviency : — "XVI. Also tlic said Lord Cardinal hath liindered and undone many of your poor subjects for want of dispatching of matters, for lie would no man should meddle but himself; insomuch that it hath beL'ii atrirmed, by many wise men, that ten of the most wisest and most expert men in England were not sufiicient in convenient time to order the matters that he would retain to himself; and many times he deferred the ending of matters because that suitors should attend aud wait upon him, whereof he had no small pleasure." — "XX. Also the said Lord Cardinal hath examined divers aud many matters in the Cliancery after judgment thereof given at the conuiion law, in subversion of your laws." — " XXVL Also when matters have beeu near at judgment by process at your common law, the same Lord Cardinal hath not only given and sent injunctions to the parties, but also sent for your Judges, and expressly by threats com- manding them to defer the judgment, to the evident subversion of your laws if the Judges would so have ceased." — " XXXVIL Also he hath divers times given injunction to your servants, that have been before him in the Star Chamber, that they, nor other for them, should make labour, by any manner of way, directly or indirectly, to your Grace, to obtain your gracious favour and pardon ; which was a presumptuous intent for any subject." The authority of the Chief Justice gave such weight • It appears very irregular to us, that of the realm, or the Dnke of Suffolk, the Sir Thomas More, the ChancfUor, should King's brother-in-law. In early times have sat upon the committee, and acted the committee on a bill was not con- as chairman; for, although Speaker by sidered necessarily a proceeding of the virtue of his ofiBce, he was not a member House, and sometimes a bill was " oom- of the House, and was only entitled to put mitted to the Attorney and Solicitor- the question; yet he signed the report General." before the Duke of Norfolk, the first peer VOL. I. 194 EEIGN OF HENKY VIII. Chap. V. to the Articles that they were agreed to by the Lords nemine contradicente ; but his ingratitude and tergiversa- tion caused much scandal out of doors, and he had the mortification to find that he might have acted an honourable and friendly part without any risk to him- self, as the King, retaining a hankering kindness for his old favourite, not only praised the fidelity of Caven- dish and the Cardinal's other dependants who stuck by him in adversity, but took Cromwell into favour, 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 igno- miniously 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 autiimn, which secured him for ever 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 Eoman Fitzjames Catholic religion which we Protestants con- deafh'pro-*" sider most objectionable, but making himself Roman '"'^ Pop^ in England in place of the Bishop of Catholics. Rome, laws were enacted subjecting to the penalties of treason all who denied his su;premacy ; and * 1 Pari. Hist. 492. A.n. 1534. CHIEF JUSTICE FITZJAMES. 195 many of these oifendors wore tried and condemned by T^ord Chief Justice Fitzjames, although ho was suspected of heinfj; in his heart adverse to all innovation in relif:;ion, 1 must confine myself to the two most illustrious \'ictims sacrificed hy him — Fisher, Bishop of a.d. 1534. Eochester, and Sir Thomas More. Henry, Z,","))''^ not contented with havinj^ them attainted of Fisher. misprision of treason, for which they were suffering the sentence of forfeiture of all their property and im- prisonment 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 resjionsi- bility and the odium should chiefly rest on the Lord Chief Justice Fitzjames, who was joined in the com- mission along with several other common law judges of inferior rank. The case against the Bishop of Eochester rested on the evidence of Kich, the Solicitor General, ' June 17. who swore he had heard the prisoner say, " I believe in my conscience, and by my learning I as- suredly 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 contend- ing 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 2 196 EEIGN OF HENRY VIII. Chap. V. did nor could, by rigour 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 favour 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 rigour of law you may take occasion thus to condemn me, yet I hope you cannot find law, except you add rigour to that law, to cast me down, which herein I have not deserved." Fitzjames, C. J. — " All my brethren are agreed that ' mali- ciously ' is a term of art and an inference of law, not a qualifica- tion 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.D. 1534. CHIEF JUSTICE FITZJAME*^. 107 A packed jury, bciiit; luft to tlieir conscience and discretion, found a verdict of Guilty; and Jlenry 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, ho sliall wear it ou 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 1^"'^, '• ,1"^' ' rnal of Sir prisoner, in an able address to the jury, clearly 'iiiumas proved that there was no evidence whatever to support the charge, and that he was entitled to an acquittal ; when Eich, the Solicitor General, was per- mitted to present himself in the witness box, and to swear falsely, that " having observed, in a private con- versation with the prisoner in the Tower, ' No parlia- ment could make a law that God should not be God,' 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 over 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, — t" 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 parUa- • 1 St. Tr. 395-408. 198 EEIGN OF HENRY VIII. Chap. V. ment be not unlawful, then the indictment is not, in my con- science, invalid." Lord Chancellor. — " Quid adhuc desideramus testimonium ? JReus est mortis. 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 en a hurdle to Tybum, where you are to be hanged till you are half dead, and then being cut down alive and emboweled, 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 Cliief Justice Fitzjames \^as an accessory to tliis atrocious murder. The next occasion of his attracting the notice of the public -was when he presided at the trials Trill of ^f Smeaton and the other supposed gallants AnneBoieyn Qf Anne Bolcyn, Luckily for him, no par- ana her SUJ3- , . posed gal- ticulars of these trials have come dow^n to us, and vpe remain ignorant of the arts hy 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 evi- dence which then prevailed, the convictions and con- fessions 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 * 1 St. Tr. 385-396. A.P. ir,30. CHIEF JUSTICE FITZJAMES. 199 Aiiuf liud licen (^iiecn of Kiijj;l;iml, koiuc rcor.s sii<:;f;ostur known or heard of, a sentence of death in the alternative or disjunctive, and incline to tiiink that it would be bad for uncertainty. The law deli^j:hts 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 sfxicial directions are givin by the King? and if no special directions are given, is the prisoner, being attainted, to escaj^e all punishment ? Prudent antiquity advises you atnre super anti'iuas 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 pro- nounced accordingly ; the Court being greatly com- forted 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 un- Death of fortunate Queen Catherine Howard ; and ho fitzjames. was much missed when the bloody statute of the Six Articles brought so many, both of the old and of • St. Tr. 410-434; Hall's Henry VIII. fol. 227 b; Fos, Mart. ii. 987; Stow, 672; Speed, 1014. 200 EEIGN OF HENEY VIII. Chap. V. tlie reformed faith, on capital charges before the Court of King's Bench. He left no descendants ; but Sir John Fitzjames, descended from his brother, was a friend and patron of Fuller, the author of the Worthies, who, therefore, writes this panegyric on the Chief Justice : — " There needs no more be said of his merit, save that King Henry VIII. preferred him, who never used dunce or drone in church or state, but men of activity and ability. He sat above thirteen years in his place, demeaning himself so that he lived and died in the King's favour." Fitzames, although not considered by nature cruel or violent, had incurred much obloquy by his ingratitude to Cardinal Wolsey, and by his sneaking subserviency ; insomuch that he had not the influence over juries which was desirable for obtaining at all times an easy conviction ; and Lord Chancellor Audley suggested the expediency of having for his successor a man of fair and popular reputation, who at the same time would be likely to make himself agreeable to the King. After the office of Chief Justice of the King's Bench Montaru'^'^ had been kept vacant some months, it was filled by Sir Edward Montagu, another legal founder of a ducal house still flourishing. Although he owed his rise entirely to his own exer- tions, he was of an ancient race. His ancestor, having come over with the Conqueror, built a castle on the top of a sharp hill in Somersetshire, and was thence called " Eoger de Monte acuto." The family long took the sur- name of Montacute ; and the elder branch, till it became extinct in the beginning of the reign of Henry VI., „. , ., for several generations bore the title of Earl His family. ^ /-nh • r- t • of Salisbury. The Chief Justice was the younger brother of a younger brother ; a junior branch of the family, settled at Hemington in Northampton- shire, who had gradually changed their name to Mon- A.n. 1539. CHIEF JUSTICE MONTAGU. 201 tagu. lie was Lorn at Brigstock in that county, in tlie latter end of the reign of Henry VII. I'eing early destined to the profession of the law, which had become the highway to wealth and honours, ho was sent when very young to study at an Inn of Chancery, and in due time was entered a member of the Society of the Middle Temple. Here he is said to have made himself, by indefatigable industry, complete master of all the learning of the common law, not neglecting more liberal pursuits, which the example of Sir Thomas More had made fashionable among iircjlessional men. I „. , o X _ HiB profes- do not find any statement of his call to the s'^nai pro- bar, or his progress in business ; but so highly was he esteemed for learning by the Benchers, that he was appointed by them "Autumn IJeader " in 1524, and " L)oublo Keader " a few years afterwards. Enterprising lawyers now began to get on by politics ; and when a parliament was summoned in 1523, Montagu contrived to be returned as a turncJtothe member of the House of Commons. But this "'JJJ^o^fg. speculation had nearly ended fatally to him. howaiciider Like Sir Thomas More and Lord Bacon, he was dealt indiscreetly made a maiden speech against iieury'viii. granting a supiily. This was the parlia- ment in Avhieh Sir Thomas More was chosen Speaker, and in which AVolsey liad gone doAvn to the House of Commons to complain of the tardy progress of the money bill. Montagu, thinking that he had found a favourable opportunity for his debut, made a violent harangue on the breach of privilege which had been committed. But the next day he was sent for by the King, who thus addressed him : " Ho ! will they not let my bill pass ? " The young patriot, in a great fright, knelt down ; when Henry, laying his hand on his heaJ, added, " Get my bill to pass by twelve of the clock to- morrow, or else by two of the clock to-morrow this 202 REIGN OF HENRY VIII. Chap. V. head of yours shall be off." In an instant was Montagu cured of his public spirit, and he became a steady- courtier for the rest of his da^^s. When he " put on the coif," or " took upon himself the degree of serjeant-at-law," he gained pro- digious applause. A call of Serjeants in those times was an event of historical importance, by reason of the festivities attending it, and of its marking an Eera in the annals of Westminster Hall. The chroniclers celebrate the call of Serjeants which included Sir Edward Montagu as the most splendid on record, and ascribe its success in no small degree to his liberality and taste. The feast was held in Ely House, Holborn, and lasted Grand feast ^^^ days : Friday, the 10th of November, wheu Mon- and Saturday, Sunday, Monday, and Tuesday called following. On the Monday, which was the erjean . greatest day. King Henry and Queen Cathe- rine dined there, with all the foreign Ambassadors, all the Judges, the Lord Mayor and Aldermen of London, all the King's Court, and many of the nobility. " It were tedious," says Dugdale, " to set down the prepa- ration of fish, flesh, and other victuals spent in this feast, and would seem almost incredible, and wanted little of a feast at a coronation."* * However, he gives a few items as a specimen, " noting the prices to show how things had risen in a century :" — " There were brought to the slaughter-house, — £ s. d. 24 great biefes, at 16 8 the piece. 100 fat muttons, at 2 10 51 great veales, at 4 8 34 porkes, at 3 3 90 pigs, at 6 Capons of Greece, 10 dozen, at 18 Capons of Kent, 9 dozen and 6, at 10 Cocks of Grose, 1 dozen and 9, at 8 Cocks course, 14 dozen at Sd. and 3d. a-piece. Pullets, the best 2 ob. Pigeons, 37 dozen, at 10 a dozen. Swans, 13 dozen. Larks, 340 dozen, at 8 „ " Dug. Or. Jur. p. 128; Stow's Survey of London, 426. A.D. 1539. CHIEF JUSTICE MONTAHU. 203 This must have been almost the last occasion of tho King being seen in j)ul)lic with his first wife ; and ho wonhl have been tuucli obliged to the Serjeants if they could, by their caniriys, have put Anno l>ol('vn in her place; but they contrived to satisfy him highly, and he declared, on his departure, tliat " the entertainment had been much to his good liking." Ho took great notice of Serjeant Montagu, whose manners were par- ticularly agreeable, and invited him to the palace at Westminster. From that time, there was a personal intimacy between them, and Montagu was set down as a royal favourite marked for promotion. However, year after year passed away, without any change in his position, and he thought He is made himself doomed to perpetual neglect, when, J;f"the King^ without having been ever Attorney or Soli- ^^'«^'>- citor General, or King's Serjeant, or Puisne -40. Judge, he found himself one day Chief Justice of England. For a short time he, no doubt, was pleased in ob- serving the ioy of his wife and children ; in „, receiving the congratulations of his friends ; m"! iiiscom- in listening to a panegjTic on his learning enc«i i>y and his virtues from Lord Chancellor Audley ; ™' in appointing his oilicers ; in giving good places to his dependants ; in putting on his scarlet robes, and throw- ing the collar of S.S. round his neck ; in witnessing the worshipful homage paid to him when he took his seat on the bench ; in attending divine service at St. Paul's, and afterwards dining with the Lord Mayor of London ; in hearing discourse addressed to him, interlarded with " My Lord," and " Your Lordship ;" in limners soliciting leave to draw his portrait ; in seeing how tho Bar not only nodded submissivelv to his law, but lauc:hcd vociferously at his jests ; in encountering the envy and jealousy of his enemies and his rivals ; and in finding 204 EEIGN OF HENRY VIII. Chap. V. that his small salary was amply made up to him from the fees, gratuities, and presents which flowed in upon him from all quarters. But it is certain that these pleasures soon faded away, and that he wished himself again a serjeant-at-law, quietly and drowsily practising in the Court of Common Pleas. Unfortunately for his comfort he had a conscience, — and he was unable either to obey its dictates or to silence its reproaches. A Chief Justice in those days, long to relish his elevation, must have been made of sterner stuff than Sir Edward Montagu. He professed, and, I believe, sincerely, an inclination for the new doctrines in religion ; but, under the statute of the Six Articles, he was often called upon to convict and to sentence to death both Papists and Pro- testants. He was still more annoyed by what may be called the extrajudicial work required of him. "When Anne of Cleves was to be divorced because Gives an , „, . j> j j. opinion on her persou alter marriage was lound not ityofthe"*' agreeable, and the King declared that in King's mar- going through the marriage ceremony he had Anne of ncvcr, in his own mind, given his consent to Cleves. . , , the marriage, the Chief Justice was obliged to give an opinion that the marriage had not been duly contracted and ought to be declared null. "When Crom- well, for negotiating this marriage, and deceiving the King as to the lady's personal charms, was to lose his head, the Chief Justice was obliged to certify to the House of Lords that innocent acts which he had done with the King's authority amounted to treason, and afforded sufficient ground for passing a bill on\he proofs of attainder against him. "When Queen clthedne Catherine Howard, who certainly had been Howard 2;uilty of incontinence before her marriage, Jan. 1546. & J re • / but against whom there was no sumcient evidence of such misconduct afterwards as would sub- A.D. 1546. CHIEF JUSTICE MONTAGU. 205 ject her to the pains of treason, was to be put to death because she had deceived the King in persuading liim that she had conic a virgin to his anus, the Chief Justice was obliged to answer in the affirmative a question submitted to him, " Wlietlier, as the accused party was a (^)ueen, the law would infer that she had committed adultery, from fiicts which in the case of a common person would afford no such inference ?" * This last alTair seems to have weighed heavily on his mind ; he thenceforth openly declared that he was tired of his dignity, and he even talked of resigning it and retiring into private life. But he was tempted to remain by large grants of abbey lands. An apologist says, " In his time, though the golden showers of abbey lands rained amongst great men, it was long before he would open his lap (scrupling the acceptance of such gifts), and at last received but little in proportion to others of that age." j This very graphically delineates his character, lie would much rather have gained all his objects by lionoural)le means, — but he could not resist temptation, although sin was followed by re- morse. In truth, he partook very largely of the spoils of the Church, and, in spite of his unhappiness, he Avas reluctant to renounce not only the emoluments of office, but the chance of further aggrandisement. An expedient presented itself, of which he eagerly availed himself. The office of Chief Justice jjg ^_ of the Common Pleas became vacant by the cbangea his '' ofnco for the sudden death of Sir John Baldwin. This had chief Jus- now acquired the name of the " pillow," from the I'ommoQ its allowing the possessor to be put to sleep ^^' by the somnolent pleadings of the Serjeants who ex- clusively practised there, in conducting real actions, • He answered, that the facts put to presumption that adultery had been him hypothetically, "considering the committed." persons implicated, formed a satisfactory f Fuller. 206 EEIGN OF HENRY VIII. Chap. V. without any excitement from criminal or political trials. For profit it was superior to the Chief Justice- ship of the King's Bench ; and most of those who had the good luck to lay their heads upon it, when taken from the tumults of the bar, remained fully contented with it for life. Yet, being inferior in point of rank, an etiquette had prevailed that no one could accept it who had been in the higher situation of Chief Justice of England. Montagu probably had some scruples, as usual when he was about to do an improper action ; but if he had any, he soon overcame them, for a few days after Baldwin's death he went to the King, and, after making a parade of his services, and his loyalty, and his extreme desire still to be of service to his Highness, he feigned ill-health and infirmity, and prayed that he might be allowed to be Chief Justice of the Common Pleas instead of the King's Bench. Wriothesly, a rigorous Eoman Catholic, was then Chancellor, and he bore no good will to Montagu, who advocated the King's supremacy, and was a grantee of Church property. However, he thought that such a character would be less mischievous in the obscurer place which he coveted, and by his advice the King consented to the exchange. Accordingly, on the 6th Nov. 1546, Montagu was superseded as Chief Justice of the King's Bench, and took his seat as Chief Justice of the Common Pleas.* Now he was like a ship that, having been tossed on a stormy ocean, suddenly enters a creek where the winds are stilled and the waters are smooth. He might feel some mortification when he saw Eichard Lyster, whom he had lately snubbed at the bar, take precedence of him in judicial processions as Lord Chief Justice of the King's Bench; and when he thought * Pat. 37 Henry VIII. p. 18. Fuller ascent in profit,— it being given to old remarks, " A descent in honour, but age rather to be thrifty than ambitious." A.D. 1546. CHIEF JUSTICE MONTAGU. 207 that his decisions were liaMo to be reversed by tlie caprice of that court wliere his word had been law ; but ho must have exulted in ex])eriencing the quiet and security he had niana<:;ed to obtain, — in Koothing his conscience by resolutions to repent of past trans- gressions, without being driven to commit new ones, — and in thinking that, when the golden showers of abbey lands again fell, he might still open his lap. During the remainder of tliis mcmoralile reign, once, and once only, he was in danger of beinir subjected to the like perils, pangs, and re- on"ihe"riai morse to which he had been exposed when o[ ^•* rfii'k '^ Chief Justice of the King's Bench. The old Duke of Norfolk, having become obnoxious to the Seymours, who were gaining an ascendency at Court, was under prosecution for treason, the principal charge against him being that, as he was descended from the royal family through a female, he had ever since his father's death quartered on his shield the royal arms of England with a diiference. The two Chief Justices were summoned to attend his examination before the Council, and it was expected that they wotdd be asked whether this pretension, which ought to have been decided by the College of Heralds, amounted to a compassing of the King's death under the statute of 25 Edw. III. But, luckily for the consciences of the Chief Justices, the Duke, knowing the hopelessness of a defence, and hoping to soften the King by submission, voluntarily subscribed, in their presence, a formal con- fession of his guilt, whereby he admitted that he had quartered the royal arms in the manner alleged, which, as he knew, by the laws of this realm amounted to high treason. This document was attested by the two Chief Justices (Montagu signing after Lyster*), and all they • 1 St. Tr. 468. 208 EEIGN OF EDWAED VI. Chap. V. could be blamed for was that they did Bot caution him against such an indiscretion. As soon as the proceeding had been completed in due form, it was made the foundation of an act of attainder, and the Duke would have suffered death as a traitor if there had not been an opportune demise of the Crown early in the morning of the day appointed J An. 28. 1547. rt T • • for his execution. The commission of Montagu as Chief Justice of the Common Pleas was renewed, and he held the office during the whole of the reign of Edward VI. Although he had been named one of Henry VIII. 's executors, he long contrived to steer clear of the violent factions by which the country was agitated. But, after the tragical end of both the Seymours, Dudley, Duke of Northum- berland, having become complete master of the kingdom, and seeing the approaching end of the young King, resolved to prolong his own rule by defeating the suc- cession of the Princess Mary. He thought that the Chief Justice of the Common Pleas would be a useful instrument in carrying into effect the project he had formed. This was to induce the dying Edward to make a will disinheriting his sisters, Mary ployed to and Elizabeth, and leaving the crown to his wm ofM- cousin, Lady Jane Grey. Of all the Judges fevour^of*"^ on the bench, Montagu was considered to Lady Jane have the fairest character, with the weakest nerves ; and, without any notice of the busi- ness to be debated, he and two or three Puisnies, over whom he was supposed to have influence, were sum- moned to attend a council at Greenwich, where the Court then lay. Being required to prepare a will for the King to the effect before stated, he was thrown into greater perplexity than he had ever experienced when Chief Justice of the King's Bench under Henry VIII. ; and, although charged to obey upon his allegiance, he A.D. 1553, CHIEF JUSTICE MONTAGU. 209 phickcd tap conrago to rofuso till ho should have an opportunity to look into the acts passed for regulating the succession, and to consult the whole of his brethren. The more he considered the matter, the more he was frightened, for he saw that Avhat he was ° A.D. 1653. asked to do was not only contrary to law, hut would bo sure to expose him to the penalties of treason. Accordingly, at a council held two days after, he explained that liy act of parliament the crown was entailed on the Lady jMary after the death of his High- ness without issue, and that nothing short of an act of parliament could alter this destination. But, North- umberland threatening the utmost violence against all who should attempt to thwart his inclination, the fol- lowing plan was resorted to — that a eommissi(jn .should pass the great seal, authorising Montagu to draw the will in the prescribed form ; that it should, when drawn and executed by Edward, be signed by all the Judges ; and that a pardon at the same time should pass the great seal to indemnify them for any offence against the law which they might thereby have committed. Thus fortified, Montagu drew the will, and under it the Lady Jane Grey was proclaimed Queen of England. He waited upon her when she came from Sion House to the Tower of London preparatory to her coronation ; but he was one of the first to desert her when he heard of the general expression of loyalty in favour of Queen Mary. For some time he was in considerable danger of a capital prosecution, the will of Edward being i-ii.,- T J.1' 1 He loses his m nis handwriting, and a report being spread office on the that he had furnished the arguments in law g"J^een °^f^. by which an attempt had been made to sup- port it. He was arrested, confined in the Tower, and subjected to repeated examinations; but Bishop VOL. I. p 210 KEIGN OF QUEEN MARY. Chap. V. Gardyner, now Chancellor and Prime Minister, was convinced that he had acted under constraint, and, while others expiated on the scaftbld the offence in which he had been implicated, after six weeks' im- prisonment he was set at liberty, being punished only by the loss of his Chief Justiceship, by a fine of lOOOZ., and by the surrender of some abbey lands granted to him at the recommendation of the Protector Somerset. He then retired to his country house, where he died „ on the 10th of February, 1556, He was His death. ■'.__. buried with his ancestors m Hemmgton church, and a splendid marble monument was there erected to his memory, with the following semi-bar- barous inscription, which, if prepared by himself, shows that he did not concur in the saying that " the receiver of abbey lands can have no faith in prayers for the dead." "Orate pro anima Edwardi Mountagu Militis ktipee Capitalis Jdstic. de CoMMUNi Banco apcd Westm. " Montacute pater, legnm jurisque magister, Edwarde, vale ! quem disciplina severa Furit et improbitas hominum scelerata timebat. Moribus antiquis vixisti, pacis amator, Virtutis rigidus custos, vitiique flagellum. venerande senex ! te luxuriosa juventus, Criminis ultorem metuens, in funere gaudet. Patria sed meret, sancto spoliata latere, Qui vixit justi summus defensor et a?qui. Hunc tu prKteriens lector defende precando." * Having been thrice married, he left eight sons and nine daughters, for all of whom he was able amply to provide. The title of Duke of Montagu bestowed upon one branch of his descendants, and of Earl of Halifax upon another, have become extinct, but the Duke of Manchester and the Earl of Sandwich are sprung from him in the direct male line. * 2 Bridge's Northampton, 34T. A.D. 154C-5C. CHIEF JUSTICE DYER. 211 Tho next five persons sncccssively appointed to the office of Cliief Ju.stieo of tlie Kina's Bench _, „ c. . The five (Sir Richard Lyster, 0th Nov. 1540 ; Sir Roger oi»< up- ciiief Cholmley, 21st March, 1552 j Sir Thomas th.- King-'a Bromley, 4th Oct. 1553; Sir AVilliani Port- "''"'^■ more, 11th June, 1554; and Sir Edward Saunders, 8th May, 1556) were neitlier eminent in their profession nor connected with the stirring events of the times in which they lived. I shall therefore pass them over without further notice, and introduce to the reader a contemporary Chief Justice of the Common Pleas, to whom we lawyers still look np with much reverence — Sn; James Dyer. I myself am boxand particularly to honour him as the first English lawyer who wrote for puLli- girj^gg cation " Reports of Cases " determined in J,*y.«'"' J^"'4 oxir municipal courts, — being followed by a oftheCom- long list of imitators, containing my humble name. To show the respect in which our craft was once held, and to excuse myself to the reader for intro- ducing a Law Reporter, I begin with some Latin lines, composed by his editor soon after his death, when a huge folio, tho labour of thirty years, was given to the world : — "CANDIDO LECTORI C^VRMEN. EcCE per assiduos tandem collecta lubores, Latin verses Expectata diu, jam monumenta patent. in his praise. Et qua; ter denos vix sunt congesta per onnos. En uno inclusit pro brevitate libro. In cujus laudcm, satis est irtnight before the except during the Commonwealth. prorogation ; but I think this must be a 2-iO EEIGN OF QUEEN ELIZABETH. Chap. V. ruents, unless (as in the case of giving the great seal to Sir Christopher Hatton) she was guided by her heart rather than her head, readily acquiesced, Chief JusUce and, after the office had remained vacant a Bench ^'°^^ few wecks. Sir Christopher Wray, to the envy of the puisnies, was installed in it ; for they all thought themselves superior to him, notwith- standing the high merits discovered in him by the Lord Keeper's harangue when he was sworn in. The new Chief Justice fully justified the choice made of him. He was not at all puffed up by his elevation. In private life he continued remarkably courteous, but he would permit no solicitations, even from the most powerful, respecting causes which were to come before him. " Each man he respected in his due distance off the bench, and no man on it could bias his judgment." * The first important trial at which he presided was A.D. 1581. that of Campion the Jesuit and the other Cvm^\onthe pi^i^sts accuscd along with him of a con- Jesuit, spiracy, at the instigation of the Pope, for murdering the Queen, and for putting Mary in her place. In reading the report of it we are struck with the dextrous manner in which he obtained a conviction, by the display of great seeming calmness and forbear- ance. Campion was a hot-headed though very able man, and, stung by a sense of the groundlessness of the charge against him, was always breaking out in intem- perate sallies. When arraigned, he wished, contrary to a well-known rule of procedure, to make a speech in defence of his innocence : — Wrat/, L. G. J. " The time is not yet come wherein you shall be tried, and, therefore, you must now spare speech, and preserve it till then ; at which time you shall have full liberty of defence, and me to sit indifferent between her Majesty and yourself: whereupon I counsel you now to say Ouilty or Not Quilty." * Fuller. A.D. 1581. CHIEF JI^STICE WRAY. 241 The evidence was wliolly iusufficient to make out the charge of treason, jukI merely proved that the prisoners had come on a fanatical mission from Rome in tlie hope of reconvi'rtin<^ the kingdum to t]i(3 true faith.* The Cliief Justice, however, by preserving tlie same tone, not only persuaded the jury, hut the prison- ers themselves, that he was their counsel, according to his duty as judge. Having allowed them to address the jury several times without interruption, he ol)- served, " If you have any more to say, s]teak, and we will hear you until to-morrow morning. We would be loth you should have any occasion to complain of the Court, and therefore, if aught rest behind untold that may be available for you, speak, and you shall be heard with indiiference." The report says, " They all thanked his Lordship, and said they could not otherwise affirm but they had found of the Court both indifference and justice." He made short work of it when the jury had given in their verdict of Guilty : — Lord C. J. ; " Campion, and the rest, what can you say why you should not die?" Campion: "The only thing that we have now to say is, that if our religion do make us traitors, we are worthy to be condemned ; but otherwise liave hcen, and are, as true subjects as ever the Queen had any." Lord C. J. : " You must go to the place from whence you came, and from thence you must be drawn on a hurdle to the place of execution, and there hanged by the neck, but not till you are dead," &c., &c, " And may the Lord convert you from your evil ways, and have mercy on your souls." t • While Campion lay under nccusa- acknowle\VAKD COKE BY JAMES I. The career of our next liero is capaWe of being made amusing as well as instructive. Althoiigh at one time in the habit of taking purses poi.'b°m. on the highway, — instead of expiating his offences at Tyburn he lived to pass sentence of death upon highwaymen, and to be a terror to evil-doers all over the kingdom. John Popham was born in the year 1531, at Wel- lington, in the county of Somerset, a place which is distinguished as the cradle of the A\ ellesleys, and which the great ornament of his race and of his country has rendered for ever famous by taking from it his title of Duke, rather than from the scene of any of his glorious victories. He was of gentle blood, being a younger son of a family who, though simple squires and of Saxon origin, had for many generations been entitled to bear arms, and who had been settled on a small estate at Iluntworth in the same county. AVhile yet a child he was stolen by a band of gipsies, and remained some months in their society ; whence some pretended to account for the irregular habits and little respect for the rules of property which afterwards marked one period of his life. His captors had disfigured him, and had burnt on his left arm a cabalistic mark which he carried with him to the grave. But his constitution, which 248 KEIGN OF QUEEN ELIZABETH. Chap. VI. had been sickly before, was strengthened by the wandering life he had led with these lawless asso- ciates, and he grew up to be a man of extraordinary stature and activity of body. We have no account of his schooling before he was sent to Baliol A.D^fsi^' College, Oxford. Here he was very studious and well-behaved, and he laid in a good stock of classical learning and of dogmatic divinity. But when removed to the Middle Temple, that he might qualify himself for the profession of the law, he A D 1551 S*^^ i^^" ^^*^ company, and utterly neglected His profli- his juridical studies. He preferred theatres, student fn'^ gaming-houscs, and other haunts of dissi- the Temple, pation, to " readings " and " moots : " and once, when asked to accompany a friend to hear an important case argued by great lawyers in Westminster Hall, he declared that " he was going where he would see disputants whom he honoured more — to a bear-baiting in Alsatia." Unfortunately, this was not, as in a subsequent age, in the case of young Holt, afterwards Lord Chief Justice, merely a temporary neglect of discipline — " a sowing of Ms wild oats." The remon- strances of his family and his friends, and the scrapes he got into, had no permanent effect in reclaiming him ; and, although he sometimes seemed resolved on reformation, and had fits of application, he was speedily again seduced by his profligate companions, and he engaged in courses still more culpable. It seems to stand on undoubted testimony, that at this period of his life, besides being given the road! ° to drinking and gaming, — either to supply his profligate expenditure, or to show his spirit, he frequently sallied forth at night from a hostel in Southwark, with a band of desj)erate cha- racters, and that, planting themselves in ambush on Shooter's Hill, or taking other positions favourable for A. I.. l,-i51-60. CHIEF JUSTICE TOPIIAM. 249 attack and escape, they stopped travellers, and to^k I'roui tliem not only tlxeir nioney, Imt any valniil)lo commodities Avhicli they carried vvitli them, — boasting that they were always civil and generous, and that, to avoid serious consequences, they went in such numbers as to render resistance impossible. We must remember that this calling was not then by any means so dis- creditable as it became afterwards ; tliat a statute was made during Popham's youth by which, on a first conviction for robbery, a peer of the realm or lord of parliament was entitled to benefit of clergy " though he cannot read;"* and that the traditions were still fresh, of robberies having been committed on Gad's Hill under the sanction of a Prince of Wales.f The extraordiuarv and almost incredible circumstance is, that Popham is supposed to have continued in these courses after he had been called to the bar, and when, being of mature age, he was married to a respectable woman. At last, a sudden isgo. He , Till 1 • refonus. change was produced by her unhappmess, and the birth of a child, for whom he felt attachment. We have the following account of his reformation from Aubrey : — " For severall yeares he addicted himselfe but little to the studie of the lawes, but i>roHiuate com]iany, aud was wont to take a purse with them. His wife considered her and liis con- dition, and at last prevailed with him to lead another life, and to stick to the studie of the lawe, which, upon her importunity, he did, beeini; then about thirtie yeares old. He spake to his wife to provide a very good entertainment fi)r his camerades to take his leave of them, and after that day fell extremely hard to his studie, and profited exceedingly. He was a strong, stout man, aud could endure to sit at it day and night ; became eminent in his calling, had good practice, was called to be a Serjeant and a Judge." J • 1 Ed. VI. c. 12, s. 14. have had at least as much effect as the t If Popham's raiiU had been a little IJepgar's Opera in softening the horror later, they might have been ini]>uttx! to excited by highway robbery. the First Part of Henry IV., which must J Aubrey, iii. 492. 250 EEIGN OF QUEEN ELIZABETH. Chap. VI. Fuller, always anxious to soften whatever appears discreditable to any of Lis " Worthies," says of Popham, — " In his youthful days he was as stout and skilful a man at sword and buckler as any in that age, and wild enough in his recreations. But, oh ! if Quicksilver could really be fixed, to what a treasure would it amount! Such is wild youth seriously reduced to gravity, as by this young man did appear. He applied himself to more profitable fencing — the study of the laws ; therein attaining to such eminency tliat he became the Queen's Attorney, and afterwards Lord Chief Justice of England."* -"o* We are not told, and it would be vain to conjecture, what means he employed to redeem the time, and to qualify himself for the profession to which he now earnestly devoted himself. This we certainly know, that he became a consummate lawyer, and was allowed to be so by Coke, who depreciated all contemporaries, and was accustomed to sneer at the " book learning: " of Francis Bacon. It might be supposed that Popham would get on His profes- particularly well in the Crown Court ; but, sionaipro- — from the dread of encountering some of his old associates, or for some better reason, — till he was reqixired, in the discharge of his official duty, to conduct public prosecutions, he confined him- self entirely to civil business ; and the department of practice for which he chiefly laid himself out was " special pleading," or the drawing in writing the allegations of the plaintiff and the de- fendant, till they ended in a demurrer referring a question of law to the judges, or in an issue of fact to be determined by a jury. To add to the gravity of his newly assumed character, he was eager to reach the dignity of the coif; and, after some opposition on * Vol. ii. 284. A.D. 1579. CHIEF JUSTICE rOrilA.M. 2ol account of the stories circulated against him, in 1571 he aetiially liecamc Serjnntt Pajiham. His fuast wan on a scale of extraordinary niagniHcence, and he furnished some very fine old Gascony wine, which the wags reported he had intercepted one night as it was coming from Southampton, destined for the cellar of an alder- man of London. However, in spite of such jilies, he acquired the reputation of being very skilful in conducting real actions, which were exclusively tried in the Court of Common I'leas, where he now practised ; and his busi- ness steadily increased. He was likewise concerned in some cases in the Court of "Wards and Liveries against the Crown ; and Elizabeth, who had a regular report made to her of all suits in which her interests were concerned, expressed a wish that he might be taken into her service. Accordingly, when Sir Thomas Bromley, who had been long her Solicitor General, was pro- moted to be Lord Chancellor, Popham sue- '[57"^ '^ He is ceeded him as Solicitor General. Now he made Solici- tor ueneral, w'as somewhat ashamed of the coif, of which he was once so proud, and, meaning henceforth to practise in the Court of Queen's Bench, he resorted to the unusual expedient of unserjeanting or discoifing himself; so he was once more " John Popham, Esquire."* He gave high satisfaction by the manner in which he conducted the Queen's business ; and in the beginning of the year 1581 he onhSse was, on her recommendation, elected Speaker "^ t'"™- . ^ . mons. of the House of Commons. This appoint- ment was substantially in the gift of the Government, and was very often bestowed on the Solicitor General • " Joh. Popham arm. exoneratus de torney-General, remained a Seijeant ; nomine, statu, et gradu Serv. ad legem." and when become Lord Lyndhurst and (_Pat. 21 Kliz. p. 2.) Seijeant Copley, Lord Chancellor, he wore the coif, and when made Solicitor-General and At- called the Seijeants his " brothers." Jan. 18. 1581. 252 KEIGN OF QUEEN ELIZABETH. Chap. VI. for the time being, the Attorney General attending as an assessor in the House of Lords, and being considered disqualified to sit as a representative of the people. When the new Speaker demanded from the Queen liberty of speech for the Commons, and their other ancient privileges, she gave him an admonition " to see to it that they did not deal or intermeddle with any matters touching her person or estate, or church or government." * The very first motion made was by Paul Wentworth, the Puritan, for a public fast to be appointed by the House, and for a daily sermon, so that, beginning their proceedings with the service and worship of God,. He might the better bless them in all their consulta- tions and actions. After a long debate, the motion w^as carried by a majority of 115 to 100. The Queen was highly incensed at this, which she considered an encroachment on her prerogative as " Head of the Church," and rated Popham very roundly for pre- suming to put the motion from the chair. On a subse- quent day he addressed the House, and said, " he was very sorry for the error that had happened, in resolving to have a public fast, and for her Majesty's great misliking of the proceeding. He advised them to send a submission to her Majesty, and to bestow their time, and endeavour thereafter during the session, in matters proper and pertinent for this House to deal in." He then asked the question, " whether the Vice Chamberlain should carry their submission to her Majesty?" And it was agreed to unanimously. Mr. Vice Chamberlain, to the great comfort of the Speaker and of the House, " brought answer of her Majesty's acceptance of the submission, — expressing at the same * 1 Pari. Hist. 811. This election of the parliament, an event which does not Speaker did not take place at the com- seem to have happened before, and which mencemeut of a parliament, but on ac- caused much perplexity, count of the death of the Speaker during A.D. 1581. CHIEF JUSTICE TOrilAM. 25.3 time sonio anxiety that they should not iiii.srejKirt the cause of her luislikinj^, which was not that .slie ohjected to fasting and prayer, but for the manner — in presuming to order a public fast without her privity, which was to intrude upon her authority ecclesias- tical."* At the end of the session Mr. Speaker Pophani pre- sented to the (^ueen all the pulilic bills passed, amount- ing to the unexampled number of fifteen ; and in a long speech, in which he explained and praised them, ho prayed the (^Hiecn gra- '^■"- 'ssi. ciously to assent to them, thus concluding — to'theQu^n "I do further most humbly beseech your l^^j'^ssrol."'^ Highness, in the name and behalf of the Commons of your realm, that you will have a vigilant and provident care of the safety of your most royal person against the malicious attempts of some mighty foreigTi enemies abroad, and the traitorous practices of most unnatural disobedient subjects both abroad and at home, envying the blessed and most happy and quiet government of this realm under your Highness, upon the tliread of whose life only, next under God, de- pendeth the life and whole state and stay of every your good and dutiful subjects."! This was Pophams last parliamentary effort, as he never again sat in the House of Commons, and in the House of Lords he was condemned to silence. Soon after the prorogation he succeeded Sir Gilbert Gerard as Attorney General, and had Sir .lunei. He Thomas Egerton (afterwards Lord Ellesmere) toniey*Ge-'" for his Solicitor. Difficult times came on, but °'^'''^- these law officers always rose with the occasion, and brought the important state prosecutions in which they were engaged to a fortunate issue. • 1 Pari. Uist. 813 t 1 Ibid. 820. 254 EEIGN OF QUEEN ELIZABETH. Chap. VI. The new Attorney General was called upon to take part in a solemnity which seems very strange to us. In that age, when parlia- ment rarely met, and there were no newspapers in which ministers could give their explanation of any public occurrence, or defend themselves from any charge orally circulated against them, it was usual to have a grand assemblage in the Star Chamber, to which the nobility, the Lord Mayor and aldermen of London, and other notabilities, were invited, and then the different members of the government (with- out any opponent) made speeches in their own justi- Proceeding fication and in their own praise. Henry chamber'^on P^rcy, Earl of Northumberland, a Eoman the death of Catholic, much attached to the interests of the Earl of ^ -nV i • , , , p i iv'orthum- Qiieen Mary, having been kept tor several years a close prisoner in the Tower, had been shot through the head by three slugs, and was found dead in his bed on the night after his guard had been changed by the orders of Sir Christopher Hatton, the Vice Chamberlain. Notwithstanding a verdict by the corouer's jury of felo-de-se, a rumour was spread, and very generally credited, that he had been iftss! ^^' assassinated, because he was considered dan- gerous to the state, and there was no evi- dence upon which he could be brought to an open trial. A meeting was accordingly called in the Star Chamber, attended by all the great officers of state, from the Lord Chancellor to the Vice Chamberlain ; and, says the report, — " The audience was very great of knights, esquires, and men of other quality. The Chancellor declared that, lest, through the sinister means of such persons as be evil affected to the present estate of her Majesty's, government, some bad and untrue con- ceits might be had, as well of the cause of the Earl's detainment as of the manner ot his death, it was thought necessary to have the truth thereof made known in that presence. He therefore A.D. 1586. CHIEF JUSTICE POPHAM. 25.") required her ilajesty's learned counsel to deliver at larae tiie 1>articularitie.s both of tlio treasons, and in wliat sort the Earl had murdered himself. Then began John Popham, Esq., her Majesty's Attorney General." ]\[r. Attornoy, not bound to prove any of his alle- gations, and not fearing any reply, but having it all his own way, proceeds with a lengthened narrative, showing that it was out of the unexampled clemency of her Highness that the deceased had not long before been convicted as a traitor, and that, from the dread of a public trial and execution, ho had died by his own hand. Tlien spoke various Lords of the Council, — and the Avhole case was at last summed up by Sir Christopher Hatton, the suspected party, who, having bitterly inveighed against the deceased Earl, declared — " That God by his just judgment had for his sins and insjra- titude taken from him his spirit of grace, and delivered him over to the enemy of his soul, who brought him to that most dreadful and horrible end whereunto he is come ; from which God of his mercy defend all Christian people, and preserve the Queen's Majesty from the treasons of her subjects, that she may live in all happiness to see the ruin of her enemies abroad and at home ; and tliat she and we, her true and loving subjects, may be always thankful to God for all his blessings bestowed upon us by her, the only maintenance of his holy gospel among us." * Popham conducted the trials of all those charged as being implicated in Babbington's conspiracy, which were meant to prepare the public mind for the trial of the unhappy Mary herself. I will give a little specimen of these proceedings from Tilneys case. The charge against liim was, that he Tiiney's had planned the murder of (^ueen Elizabeth ^®^- in her coach. The chief evidence consisted of a con- • 1 St. Tr. 1111-1128. Yet these ex- written to Sir Robert Cecil, assumes it as hibitions do not seem to have had much a fact known to both of them, that the effect, for although 1 believe this charge Karl of Northumberland was murdered of assassination to be unfounded. Sir by the contrivance of Uatton. — ilurdin, Walter Raleigh, in a letter soon after 811. 256 REIGN OF QUEEN ELIZABETH. Chap. VI. fession of Abington, an avowed accomplice, in which he said that " Tilney was disposed to kill the Queen ;" and that Babhington, on his own trial, said the day before, " Tilney would have had her Majesty set upon in her coach." Tilnfy. " No ! I said not so ; only at the Three Tuns, in Newgate Market, I said ' it might be her Majesty might be set upon in her coach,' and I said no more. But that proves not I did consent." Fopliam, A. G. : " You have said enough, if we had no other evidence against you." Tilney : " How so ? " PopJiam, A, O. : " Because you have confessed high treason ; your words prove that you were devising on the manner of her death." Tilney : " I tell you there is no such matter intended in my words. If a servant which is faithful, knowing where his master's money is, do say, ' If I would be a thief I could rob my master, for in such a place his money is,' this proves not that he would rob his master albeit he used such words. And so, though I said 'she might be set upon in her coach,' it proveth not that I assented to the same ; for I protest before God I never intended any treason in my life." Ander'son, C. J. (the pre- siding Judge) : " But if a servant, knowing where his master's money is, among thieves which are devising to take away the master's money, do say, ' this way my master's money may be taken,' and be in view when it is taken, I say that he is acces- sory. And you, Tilney, being amongst traitors that were de- vising how to kill her Majesty, showed by what means her Majesty might be killed. This manifestly proves your assent. Therefore let the jury consider of the evidence." Upon this summing up, a verdict of Guilty was immediately pronounced, and the prisoner was exe- cuted.* Popham was present in the court at Fotheringay during the trial of the Queen of Scots, hut did not interfere much in the proceeding, as the part of public prosecutor was acted in turn by Lord Chancellor Bromley, Lord Treasurer Burleigh, and Vice Chamber- lain Hatton, who were sitting as her judges.f * X St. Tr. 1127-1162. t Ibid. 1161-1228. A.n. 1588. CHIEF JUSTICE TOPIIAM. 257 When jioor Scci'elary ])iiviHon (iut(,U(lc(l to be the .scapegoat for the sins of all concerned in her upproso. death ) was brought before the Star Chamber, < "t.H Hccre- / o ^ ' tury Davison Popham enlarged on the enormity of his ^"^ sending offence in sending off the warrant for her rant for the ,• •,! J. ii r\ ' 1 Pxecution of execution without tlie IJiieen s express orders, yueen Mary, althougli she had signed it, and it had passed ■*"■ '^^^■ the Great Seal by her authority and with her ap- probation.* The last case in which Popham seems to have been concerned at the bar gives us a lively idea of the perils to which public liberty was exposed in the end of the sixteenth century. Sir Eichard Knightly, the representative of an ancient family in Northampton- shire, had the misfortune to be a Puritan, and had printed and published, in a country town near his residence, a pamphlet, explaining very temjierately his religious notions upon the proper observance of the Sabbath, and other such subjects. This gave deep offence to the bishops ; and the author was prosecuted in the Star Chamber for it. Popham denounced it as a most seditious and libellous publication, " fit for a vice in a play, and no other," but founded his reasoning chiefly on proclamations issued by her Majesty declaring " that no pamplilet or treatise should be published till previously seen and allowed ; and further, that no printing shall be used any where but in London, Oxford, and Cambridge." It was admitted that for mere breach of a royal proclamation an indictment could not be supported in a court of common law ; but the cro>\ai lawyers asserted, that it was part of the royal prerogative to issue proclamations on any subject, for the public good, and that those proclamations might be enforced by prosecutions in the Star Chamber. • 1 .St. Tr. 1229. VOL. I. S 258 EEIGN OF QUEEN ELIZABETH. Chap. VI. Nobody in the Star Chamber ventured to controvert this doctrine ; and, on the i)resent occasion, the only justification or palliation offered by the defendant was, that he had been overperstiaded by his wife. Pojp- Jiam, A. G. : " Methinks he is worthy of the greater punishment for giving such a foolish answer as that he did it at his wife's desire." He escaped with a fine of 2000Z.* — Such cases should be borne in mind when we measure our gratitude to Sir Edward Coke, for stoutly denying the legality of proclamations to alter the law of the land, and for contending that dis- obedience to them could not lawfully be made the subject of a prosecution in the Star Chamber any more than in a court of common law. The proclamation and the prosecution conjoined were weapons to satisfy any tyrant, however rancorous his hatred of liberty, or however eagerly covetous of despotic power. Upon the death of Sir Christopher Wray, there was some hesitation about the nomination of his 1692. **' successor. Popham was an able man, and had done good service as Attorney General ; but there was an awkwardness, after the stories that were circulated about his early exploits, in jilacing him at the head of the administration of criminal justice. Egerton, the Solicitor General, although of great learning and unexceptionable character, could not decently have been put over his head ; Coke was already known to be an incarnation of the common law of England, but he could not be placed in such an exalted situation without having before served the crown, or given any sure earnest of sound political principles; and Sir Edmund Anderson, the Chief Justice of the Common Pleas, refused to give up his " pillow " for the thorns of the Queen's Bench. None * 1 St. Tr. 1263-1272. A.n. 1592. CHIEF JUSTICE POPHAil. 250 of the ■pmsnles were crmsiclercd competent to presiilc on a trial for \\\^\ treason, or to deliver a political harangue in the Star Cliaiulxr. The choice, therefore, „ , ' I'ojilmin it fell upon Pophani, avIio, on tlic 8th of June, inii.io rhi.f 1502, received his writ as Chief Justice of the King's England, was knighted hy the Queen at ""^ '' Greenwich, and Ava.s sworn of the Privy Council along with Lord Keeper Puckering. Ho held the office fifteen years, during the end of this and the beginning of the succeeding reign, and lie was supposed to conduct himself in it very creditably. The reproach urged against him was, extreme severity to prisoners. He was notorious as a " hanging judge." Not only was he keen to convict in cases prosecuted by the Government, but in ordinary larcenies, and, above all, in highway robberies, there was little chance of an acquittal before him. After a verdict of gtiilty in capital cases, he uniformly let the law take its course : even in clergiable felonies he was very strict about the " neck verse ;" and those who were most excusable, on account of ignorance, he saw without remorse led off to the gallows, although if they had been taught to read they would have escaped with a nominal punishment. To such a degree had "damned custom" brazed his feelings. Some, indeed, who probably refine too much, have supposed that he was very desirous of showing to the public that he had no longer any sympathy with those who set the law at defiance, and that in this way he thought he made atonement to society for the evil example which formerly he had himself set. On the trial of actions between party and party he is allowed by all to have been strictly impartial, and to have expounded the law clearly and soundly. 1'here are many of his judgments in civil cases preser^'cd, showing that he well deserved the reputation which he enjoyed, but they are all of such a technical character that they s 2 260 EEIGN OF QUEEN ELIZABETH. Chap. VI. ■would be tininteresting, and indeed unintelligible, to the general reader. In speaking of him farther as a Judge, I must, therefore, confine myself to his appear- ances in the state trials which took place while he was Chief Justice to Elizabeth and James. The most glorious day of his life was Sunday, the 8th of February, 1601, when he showed a A.D. 1601. J 1 1 His gallant courago, a prudcuce, and a generosity which Essex's re- ought for cvcr to render his name respect- beiiion. ^^|3ig_ Elizabeth, in her palace at Whitehall, was informed that the young Earl of Essex had madly fortified his house in the Strand, and had planned an insurrection in the City of London. She immediately ordered Chief Justice Popham to accompany Ellesmere, the Lord Keeper, and summon the rebels to surrender. They went unattended, except by their mace-bearers. Essex having complained of ill treatment from his enemies, the Chief Justice said calmly, " The Queen will do impartial justice." He then, in the Queen's name, required the forces collected in the court-yard to lay down their arms and to depart, when a cry burst out of " Kill them ! kill them !" The Earl rescued them from violence, but locked them up in a dungeon, while he himself sallied forth, in hopes of successfully raising the standard of rebellion in the City of London. After being kept in solitary confinement till the after- noon, Popham was offered his liberty on condition that the Lord Keeper should remain behind as a hostage; but the gallant Chief Justice indignantly refused this offer, and declared that he would share the fate of his friend. At length, upon news arriving of Essex's failure in the City, they were both liberated, and made good their retreat to Whitehall in a boat. The trial of Essex coming on before the Lord High Steward and Court of Peers, Popham was both assessor and witness. First a written A.D. 1G02. ciiiKF JUSTICE rorirA:\r. 201 deposition, signed ])y liini, was road, and then he was examined viva voce, lie gave liitj evidence with temper- ance and caution, affording a sti'iking contrast to the coarse vituperation of Coke, the Attorney General, and the ingenious sophistry of Bacon, who seemed to tliirst for the blood of his benefiictor.* I'opliam, though so severe against common felons, was touched by the misfortune of the high-boni Essex, felt some gratitude for the tenderness he had experienced when in his power, and recommended a pardon, which would have been extended to him if the fatal ring had duly reached the hands of Elizabeth. AVhcn Sir Christopher Blunt and several other com- moners were tried for being concerned in this Mar. 1602. rebellion. Chief Justice Poiiham presided as T/'*' ?/ , ' i i £.ssex 8 ac- Judge, and, at the same time, gave evidence compUces. as a witness, mixing the two characters in a manner that seems to ixs rather incongruous. He began with laying down the law : — Lord C. J. : " Whenever the subject rcbeileth or riseth in a forcible manner to overrule the royal will and power of the sovereign, the wisdom and foresight of the laws of this lan4 maketh this construction of liis actions, that he intended to de- prive the sovereign both of crown and life. If many do conspire to execute treason against the prince in one manner, and some of them do execute it in another manner, yet their act, though difl'oreut in the manner, is the act of all of them who conspire, by reason of the general malice of the intent." Afterwards he entered into a dialogue with the wit- nesses and with the prisoners respecting the occxir- rences he had witnessed at Essex House. For example: L. C. J. : " Sir Christopher, I should like to know why you stood at the great chamber door, Avith muskets charged and matches in your hands, which I well dis- cerned through the key-hole?" He repeatedly put * Camd. Eliz. vol. ii. 225. 231 ; 1 St. Tr. 1333-1360. 262 EEIGN OF QUEEN ELIZABETH. Chap. VI. similar questions, and gave his own version of the different vicissitudes of the day till he was liberated. He then summed up to the jury, commenting on his own evidence, and, after the verdict of Guilty, he thus addressed the prisoners : — " I am sorry to see any so ill affected to the state as to become plotters and practisers against it. And my grief is the more in this — men of worth, service, and learning are the actors in the conspiracy. Shall it be said in the world abroad that, after forty- three j'ears' peace under so gracious and renowned a prince, we Englishmen are become weary of her government, while she is admired by all the world beside? Some of you are Christians ; and where, I pray you, did you ever read or hear that it was lawful for the subject to command or constrain his sovereign ? It is a thing acjainst the law of God and of all nations. Although your example be pitiful, yet by this let all men know and learn how high all actions treasonable do touch, and what they tend to. Now attend to the care of your souls, to keep them from death, whereof sin is the cause ; and sin is not removed but by repent- ance, which being truly and heartily perfomied, then follows what the prophet David spake of, ' Blessed are they to whom God imputeth no sin.' " Finally, he pronounced upon them the revolting sentence in high treason, and they were executed accordingly.* On the death of Queen Elizabeth, Popham joined in acknowledging the title of the King of Scots 1603^^ ^*' ^s lawful heir to the throne, and he was re- appointed to his office of Chief Justice of the King's Bench when the new Sovereign arrived in . ., ,, London. We are told that he still main- April n. tained his reputation for a strict enforcement of the criminal law, and did not suffer the sword of justice to rust in its scabbard, " In the beginning of the reign of King James, Popham 's jus- tice was exemplary on thieves and robbers. The land then swarmed with people which had been soldiers, who had never * 1 St. Tr. 1400-1452. A.D. 1G03. CUIEF JUSTICE POI'lIAM. 263 gotten (or quite forf^ottcn) any other vocation. Hard it was for peace to feed all the idle mouths which a fonncr war did breed : beins too ja-ouil to he mating- the accused, Avhieh our neighbours the French still follow and i'n,rticeor praise, prevailed iu Euohind. Many ques- lluSnto tions were put to Sir Walter Raleigh on this j,';'^|!Ju'i","'i'' occasion, in the hope of entrapping him. "■'"'■<■ On account of his great acuteness, they were rather of service to him ; Imt they show how unequally this mode of striving to get at truth must ()])erate, and huw easily it may be abused. The verdict of Guilty being recorded, Lord Chief Justice Popham said, — " 1 thought I should never have seen this day, Sir Walter, to have stood in tliis place to give sentence of death aLrainst you ; hccanse I thought it impossible that cue of so great parts should have fallen so grievously. God hath bestowed on you many benefits. You had been a man fit and able to have served the King in good place. It is best for a man not to seek to climb too high, lest he fall ; nor yet to creep too low, lest he be trodden on. It was the poesy of the wisest and greatest councillor in our time in England, ^ In medio spatio mediocria firma locantur.'* You have been thken for a wise man, and so have shown wit enough this day. Two vices have lodged chiefly in you ; one is an eager ambition, the other corrupt covetousness. Your conceit of not conftssiug anything is very inhuman and wicked. My Lord of Essex, that noble earl that is gone, who, if he had not been carried away by others, had lived in honour to this day among us, con- fessed his offences, and obtained mercy of the Lord ; for I am verily persuaded in my heart he died a worthy servant of God. This world is the time of confessing, that we may be absolved at the day of judgment. You have no just matter vi complaint that you had not your accuser come face to face ; for such an one is easily brought to retract when he seeth there is no hope of Lis own life. It is dangerous that any traitors should have access to or conference with one another: when they see themselves must die, they will think it best to have their fellow live, that he may commit the like treason again, and so in some sort seek revenge. Your case being thus, let it not grieve you if I si)eak a little out of zeal and love to your good. You have been taxed by the world with the defence of the most heathenish and blasphemous opinions, which I list not to repeat, because Christian ears cannot endure to hear them, nor the authors and maintaincrs of them be suffered to live in any Christian commonwealth. Y'ou shall do * Posy, or motto, of Lord Keeper Bacon. 266 KEIGN OF JAMES I. Chap. VI. ^vell before you go out of the world to give satisfaction therein, and not to die with these imputations upon you. Let not any devil persuade you to think there is no eternity in heaven ; for, if you think thus, you shall find eternity in hell fire." Sentence of death was then i^ronoiinced. But, not- withstanding Ealeigh's unpopularity from, the part he had taken against the Earl of Essex, the hard treat- ment he had experienced on his trial excited such general sympathy in his favour, that his life was spared for the present ; and the sad task was reserved to another Chief Justice, after the lapse of many years, to award that the sentence should be carried into exe- cution.* Guy Eawkes, and his associates implicated in the Gunpowder Plot, were tried before Poj)ham, but there was such clear evidence against them, that no question of law arose during the trial, and we are 1606. The merely told that " the Lord Chief Justice of Kot.^°^^''' England, — after a grave and prudent relation and defence of the laws made by Queen Eliza- beth against recusants, priests, and receivers of priests, together with the several occasions, progresses, and reasons of the same, and having plainly demonstrated and proved that they were all necessary, 7nild, equal, and moderate, and to be justified to all the world, — pronounced judgment." f Popham's last appearance in a case of public interest „ , was upon the trial of Garnet, the Supe- March 28, J- a • i • i • 1606. Trial rior of the Jesuits. Against him the evi- superior of deucc was vcry slender, and the Chief Justice the Jesuits. ^^^ obliged to eke it out by unwary answers to dexterously-framed interrogatories. He succeeded so far as to make the prisoner confess that he was aware of the plot from communications made to him in the confessional; so that, in point of law, he was * 2 St. Tr. 1-62. A.D. 1606. CHIEF .irSTICE POPHAM. 207 guilty of misprision of treason, by not givini; infor- mation of what lie had no h-arnoil : hut Garnet still firmly denied ever liavinj;; taken any part in the de- vising of the plot, or having in any manner encouraged it. At last, ho said very passionately, — *' My Lord, I would to God I had never known of the Powder Trcnson ; but, as He is n>v judge, I woulil have stopped it if I coukl." Fopham, C. J. : " Garnet, you are Sunerior of the Jesuits ; and if you forbid, must not the rest obey ? Was not Greenwell with you hah' an liour at Sir Everard Digby's house when you heard of the discovery of your treason ? And did you not tlicrc confer and debate tlie matter together ? Did you not stir him up to go to the rebels and encourage them V Yet you seek to colour all this : but that is a mere shift in you. Catesby was never far from you, and, by many apparent proofs and evident presumptions, you were in every particular of this action, and directed and commanded the actors ; nay, I think verily you were the chief that moved it." Garnet: " Ko, my Lord, I did not." The report adds, "Then it was exceedingly well urged by my Lord Chief Justice how he writ his letters for "Winter, Fawkes, and Catesliy, principal actors in this matchless treason, and how he kept the two bulls to prejudice tlic King, and to do other mischief in tlic realm ; and how he afterwards burnt them when he saw the King peaceabl}' come in, tliere being no hope to do any good at that time." This was only an interlocutory dialogue during the trial, and no proof had been given of the facts to which the Judge, who was supposed to be counsel for the pri- soner, had referred. His summing-up to the jury is not reported; and we are only told that, the A-erdict of Guilty being found, " Then the Lord Chief Justice, making a pithy preamble of all the apparent proofs and presump- tions of his guiltiness, gave judgment that he should be drawn, hanged, and quartered." * There was a strong- temptation to all who desired Court favour to show ex- traordinary zeal on this occasion, for the fate of Garnet had excited deep interest all over Europe, — and the King himself, a large number of the nobility, and many • 2 St. Tr. 217-353. 268 EEIGN OF JAMES I. CiiAr. VI. members of tlie House of Commons, were present at the trial. Popliam, wlio had hitherto retained wonderful vigour, both of body and mind, was soon after struck Death of i^y ^ mortal disease, and on the 1st of June, Popham. J ' 1607, he expired, m the seventy-second year of his age. According to the directions left in his will, he was buried at Wellington, the place of his nativity. I believe that no charge could justly be made against his purity as a judge ; yet, from the recollection of his early history, some suspicion always hung about him, and stories, probably quite groundless, were circulated to his disadvantage. Of these, we have a specimen in the manner in which he was said to have become the owner of Littlecote Hall, which in a subsequent age was the head-quarters of the Prince of Orange, and which Macaulay describes as " a manor house, renowned down to our own times, not more on account of its venerable architecture and furniture, than on account of a horrible and mysterious crime which was perpe- trated there in the days of the Tudors."* The earliest * History of England, ii. 542. In the At one end of the hall is a range of coats notes to the 5th canto of Rokebt, there of mail and helmets, and there is on is an interesting account of the appear- every side abundance of old-fashioned ance ^¥hich the place now presents, and pistols and guns, many of them with ■which is probably exactly the same matchlocks. Immediately below the cor- which it presented when it was occupied nice hangs a row of leathern jerkins, by Lord Chief Justice Popham :— " Lit- made in the form of a shirt, supposed to tlecote House stands in a low and lonely have been worn as armour by the vas- situation. It is an irregular building sals. A large oak table, reaching nearly of great antiquity, and was probably from one end of the room to the other, erected about the time of the termination might have feasted the whole neighbour- of feudal warfare, when defence came no hood, and an appendage to one end of it longer to be an object in a country man- made it answer at other times for the old sion. Many circumstances, however, in game of shuffle-board. The rest of the fur- the interior of the house, seem appro- niture is in a suitable style, particularly priate to feudal times. The hall is very an arm-chair of cumiroiis workman- spacious, floored with stones, and lighted ship, constructed of wood, with a high by large transom windows. Its walls lack and triangular seat, said to have are hung with old military accoutrements been used hy Judge Popham in the reign but have long been left a prey to rust, of Elizabeth. In one of the Ijedcham- A.n. 1G06. CHIEF JUSTICE rOrilAM. 209 luirriitive tluit I fiiul of tin's iitrocity, and of Lord Chief Justice Popliam's connection -with it, is by Aubrey : — " Sir Richard DayrcU, of Littlecot, in com. Wilts, having got liis lady's waitiii.i; woman with cliild, when i^eg^nj rp. her travell came sent a servant with a liorsc for a Bjiccting the midwife, whom he was to bring hoodwinked. She ".'u"u^['° was brought, anil layd the woman; but as soon acquired the as the child was borne, she saw the kniglit take the manor of child and murther it, and burn it in the fire in the Littiecotc. chamber. She having done her businesse was extraordinarily re- warded for her painus, and went blindfold away. This horrid action did much run in her mind, and she had a desire to dis- cover it, but knew not where 'twas. She considered with herself the time she was riding, and how many miles she might have rode at that rate in that time, and that it must be some great person's house, for the roomc was twelve foot high ; and she should know the chamber if she sawe it. She Avent to a justice, of peace, and search was made. The very chamber found. The knight was brought to his tryall ; and, to be short, this Judge had this noble house, parke, and manor, and (I thinke) more, for a bribe to save his life. Sir John Popham gave sentence according to lawe, but being a great person and a favourite he jirocured a noU prosequi.^ * bers, which you pass in going to the horseman, who told her that her assist- long gallery hung with portraits in the ancc was required immediately by a Spanish dresses of the IBtli century, is .1 person of rank, and that she should be bedstead with blue furniture, which time liandsomely rewarded, but that there has now made dingy and threadbare, were reasons fur keeping the affair a and in the bottom of one of the bed cur- strict secret, and therefore she must tains you are shown a place where a submit to be blinilfolded, and to be con- small piece has been cut out and sewn in ducted in that condition to the bed- again, serving to identify the same with chamber of the lady. AVith some hesi- the horrible storj' belonging to it." tation the midwife consented ; the * Aubrey, iii.493. Subsequent writers horseman bound Iicr eyes, and placed have no better ground to proceed upon, her on a pillion behind him. After and it would be unfiir to load the proceeding in silence for many miles, memory of a judge witli the obloquy of through rough and dirty lanes, they S1I great a crime upon such unsatisfac- stopped, and the midwife was led into a tory testimony. Walter Scott publishes house, which, from the length of her the following version of the story, " ex- walk through the apartments, as well as actly as told in the country:" — "It was the sounds about her, she discovered to on a dark night in tlie month of No- be the seat of wealth and power. AMien vember, that an old midwife sat musing the band;ige was removed from her eyes, by her cottage fireside, when on a sudden she found herself in a bedchamber, in she wa.s startled by a loud knocking at which were the lady on whose account the door. On opening it she found a she had been sent for, and a man of a 270 EEIGN OF JAMES I. Chap. VI. Popham's portrait represented him as "a hudge, heavy, ixgly man ;" and I am afraid he would not appear to great advantage in a sketch of his moral qualities, which, lest I should do hini injustice, I shall not attempt. In fairness, however, I ought to mention that he was much commended in his own time for the number of thieves and robbers he convicted and exe- cuted ; and it was observed that, " if he was the death of a few scores of such gentry, he preserved the lives and livelihoods of more thousands of travellers, who owed their safety to this Judge's severity." * haughty and ferocious aspect. I'he lady was delivered of a fine boy. Immediately, the man commanded the midwife to give him the child, and, catching it from her, he hurried across the room and threw it on the back of the fire that was blazing in the chimney. The child, however, was strong, and by its struggles rolled itself off upon the hearth, when the ruffian again seized it with fury, and, in spite of the intercession of the midwife, and the more piteous entreaties of the mother, thrust it under the grate, and, raking the live coals upon it, soon put an end to its life. The midwife, after spending some time in affording all the relief in her power to the wretched mother, was told that she must be gone. Her former conductor appeared, who again bound her eyes, and conveyed her behind him to her own home; he then paid her handsomely and departed. The midwife was strongly agitated by the horrors of the preceding night, and she immediately made a deposition of the fact before a magistrate. Two circum- stances afforded hopes of detecting the house in which the crime had been com- mitted: one was, that the midwife, as she sat by the bed-side, had, with a view to discover the place, cut out a piece of the bed curtain and sewn it in again ; the other was, that, as she descended the staircase, she had counted the steps. Some suspicion fell upon one Darrell, at that time the proprietor of Littlecote House and the domain around it. The house was e.xamined and identified by the midwife, and Darrell was tried at Salisbury for the murder. By corrupting the judge he escaped the sentence of the law, but broke his neck by a fiiU from his horse in hunting, in a few months after. The place where this happened is still known by the name of ' Darrell's stile," and is dreaded by the peasant whom the shades of evening have over- taken on his way." Walter Scott founds a beautiful ballad on this legend, but— instead of a mid- wife, skilled in the obstetric art, to assist the lady— introduces a more poetical character, " a friar of orders gray," to shrive her, and he sacrifices the mother instead of the child, — without saying a word of the trial before Popham. I copy the last three stanzas : — " The shrift is done, the friar is gone Blindfolded as he came : Next morning all in Littlecote Hall Were weeping for their dame. " Wild Darrell is an altered man ; The village crones can tell. He looks pale as clay, and strives to pray, If he hears the convent bell. " If prince or peer cross Darrell's way. He'll beard him in his pride - If he meet a friar of orders gray. He droops and turns aside." * Aubrey, iii. 498. A.D. 1600. CHIEF JUSTICE rOPlIAM. 271 Popham is to bo reckoned amoiip; the English Judges who were authors, having compiled a volume .,. „ of IJeporfs of Jus decisions while lie was Chief Justice of the King's lleiich, beginning in the 34th & 3oth of Elizabeth. Being originally in French, an English translation of them was published in the year 1082, but they are wretchedly ill done, and they arc not considered of authority, ^^'o should have been much better pleased if he had given us an account of his exploits when ho was chief of a band of freebooters. He left beliind him the greatest estate that over had been amassed by any lawyer — some said as much as 10,000Z. a year; but as it was not supposed to bo all honestly come by, and he was reported even to have begtm to save money when " the road did him justice," there was a prophecy that it would not prosper, and that " what was got over the De\nrs l)ack Avould be spent under his belly." Accordingly, we have the following account of his son John : — " lie was the greatest house-keeper in England ; Avould liave at Littlecote four or five or more lords at a time. His wife, who had been worth to him GOOO/., was as vainc as he, and sayd 'that she had brought such an estate, and she scorned but she would live as high as he did;' and in her husband's absence would have all , „ ,. , ,1 • ,1 1 ''■'' fortune. the- woemen oi the countrey thither, and feaste them, and make them dninke, as she would be herselfe. They both dyed l)y excesse and by luxury ; and by cosenage of their servants, when he dyed, there was a hundred thousand pounds in debt. This was his epitaph, — " Here lies he who not long since Kept a tiible like a prince, Till Death cauio ami tooke awaye. Then ask't the old man ^^^lal's lopayf"* • Aubrey, iii. 4 94. 272 EEIGN OF JAMES I. CiiAr. VI. Tile family retained a remnant of the Chief Justice's possessions at Littlecote for two or three generations, and then became extinct. The next Chief Justice of England affords a striking Sir Thomas proof that tliougli dulness be often considered fiv^of'"' an aptitude for high office, the elevation Bacon. which it procurcs will not confer lasting fame. 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 pro- fessional honours showered upon him while the im- mortal philosopher, orator, and fine writer continued to languish at the bar without any advancement, not- withstanding all his merits and all his intrigues. But Fleming had superior good fortune, and enjoyed temporary consequence, because he was a mere laivyer, — because he harboured no ideas 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 un- His labo- ^ ' "' riousness. wearied drudgery he got into considerable A.D. 1594. . o ./ D practice ; and it was remarked that he always tried how much labour he could bestow upon every * He probably had not an academical Flemming, Lord Chief Justice of Eng- education, as on the 7th of August, 1613, land, be created M. of A."— 2 Wood's it was ordered by the convocation of the Ath. Ox. 355. University of Oxford " that Sir Thomas A.D. 1594. CHIEF JUSTICE FLEMING. 273 case intrusted to him, while his more lively competitors tried with how little labour they could creditably perform their duty.* In tlio end of the year 1504 ho was called to the degree of serjeant, aloug with eight others, and was thought to be the most deeply Solicitor versed in the law of real actions of the preference to 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 Lacedimonian, be glad that there is such choice of abler men than myself." He accom- panied 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 favour 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 pro- • He appears, however, to have been under date 10th August, 1592: — " This long unknown beyond the precincts day Mr. Recorder surrendered his office ; of Westminster Hall. In Kleetewood's the lot is now to be cast between Mr. Diary, cited in Wright's Queen Kliza- Seijeant Druce and one Mr. Flemmynge beth, ii. 418, there is the following entry of Lincoln's Inn." VOL. I. T 274 KEIGN OP JAMES I. Chap. VI. moted, might be a dangerous rival to his cousin, Eobert 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 com- paring 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 ofiicial 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 "law- yer-like and ungenteel" for the chair, and Serjeant • Tho. Fleming a statu et gradu ser- WeHm. 5 Nov. Pat. 37 Eliz. p. 9.— Dug. vientis ad legem exoneratus. T. R. apud Cfmn. Ser. 99. 1 A.D. 1G02. CHIEF JUSTICE FLEMING. 275 I Croko, who was more presentable, was substituted for liiin. Ho opened his moutli in the Ihjusc only once, and then ho broke down. This was in the great He breaks debate on the grievance of monopolies. Ho jill^^'of*''^ tindertook to defend the system of granting Q,'J"'"o"*' to individtials the exclusive right of dealing leoi. 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 Avhich he maintained that " the Queen, as she is our sovereign, hath both an enlarging and a restraining power : for, by her pre- rogative she may, 1st, set at liberty things restrained by statute law or otherwise; and, 2dly, by her pre- rogative she may restrain things which be at liberty." He concluded by expressing the utmost horror of introducing any bill to meddle with the powders of the crown upon the sxibjoct, 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 T 2 276 EEIGN OF JAMES I. Chap. VI. Fleming to accept the appointment of Queen's Ser- He refuses to jcant, which would have given him pre- resign the ceclence over the Attorney General : but this offlce of /.•iTj'i 111 Solicitor failed, for he would thereby have been con- fa v!fur of" sidered as put upon the shelf, instead of Bacon. being on the highway to promotion. Elizabeth died, leaving Bacon with no higher rank than that of Queen's Counsel: and, on the April 2, 1603. . ^ T -E^l • accession oi James 1., Jblemmg was reap- pointed Solicitor General. The event justified his firmness in resisting the He is made attempt to shclve him, for in the following Chief Baron year, on the death of Sir William Peryam, chequer by he was appointed Chief Baron of the Ex- ames . choquer. While he held this ofiice, 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 Impo- " The Great . . J- Caseofiin- sitions." 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 2s. 6d. per cwt. was imposed upon currants, he by his own authority laid on an additional duty of 7s. 6d., making 10s. per cwt. Bates, a Levant merchant, who had imported a cargo of currants from Venice, very readily paid the parlia- mentary duty of 2s. 6d. upon it, but refused to pay more ; thereupon the Attorney General filed an infor- mation in the Court of Exchequer, to compel him to A.D. 1604. CHIEF JUSTICE FLEMING. 277 pay the jultlitional duty of Is. (>d. ; so the question arose, -whother lie was by law compellable to do 80 ? After arguments at the bar which lasted many days, — Fleming, C. D., saitl : " The defendant's pica in this case is witliout precedent or example, for he alleges that the imposition which tlie King has hiid is ' indebite, iiijust6, et contrh k'ges Angliaj inip)sit;i, and, therefore, he refused to pay it.' The Ki/iy, as is commonly said in our Injoks, cannot do wrong ; and if the King seize any la*fd without cause, I ought to sue to him in humble manner (/lumiUime siq)i>Hcavit,&c.), and not in terms of opiwsition. The matter of the plea first regards the jirerogalive, 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 projierly up>n currants and not ujwn the defendant, for ujwn him no imposition shall be but by parliament. The things are currants, a foreign commfxhtj'. The King may restrain the person of a subject in leaving or coming into the realm, and, a fortiori, may imix)se conditions on the inijx)rtatiou 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. 'J"he ordinary is for the profit of particular subjects — the determi- nation of civil justice ; this is nominated by civilians jus pri- vatum, 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 ndes of jjolicy, 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 lie 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 customs 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 278 KEIGN OF JAMES I. Chap. VI. 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. King James declared that Chief Baron Fleming was * 2 St. Tr. 371—394. A.D. 1607-13. CHIEF JUSTICE FLEMING. 279 a judge to his heart's content. He had been somewhat afraid when ho came to England that he might liear such unpalatable doctrines as had excited his indigna- tion in Buchanan's treatise *' iJe jure regiii apud Scotos," and ho 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 pjeming ap- always said that " though sloic, he was sure ;" j;;;^';|^'„^f''t^\' ani he became Chief Justice of England the King's very same day on -miich Francis Bacon juncjs, 1 fin? 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 nisjodg- years. During that time, the only case of ^jseVrthe* general interest which arose in Westminster i''«"i''''- llall, was that of the Postnati. As might be expected, tc please the King he joined cordiall}' in w^hat I consider the illegal decision, that persons bom in Scotland after the accession of James to the throne of England were entitled to all the privileges of natural- bom subjects in England, although it was allowed that Scotland was an entirely separate and independent kingdom. Luckily, the question is never likely again to aiise 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 con- sidered a conclusive authority, being founded upon such reasoning as that " if our King conquer a Chi-istian • Dug. Chron. Ser. 102. 280 EEIGN OF JAMES I. Chap. VI. 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 pro- secution of the Countess of Shrewsbury, be- ma.^*" ~ fore the Privy Council, on the charge of Prosecution having refuscd to be examined respecting the tess of part she had acted in bringing about a clan- rews ury. ^gg^^j^g 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 mis- demeanour to marry, or to connive at the marriage of, any relation of the King without his consent, and tiat 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 is his opinion, that she should be fined 10,000Z., aiid 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 de- pendants 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 • 2 St. Tr. 559-768. f Ibid. 765-778. A.D. 1613. CHIEF JUSTICE FLEMING. 281 against prerogative should be placed in a position which might give greater weight to his efforts on the pijpular side ; but of this there .seemed no prospect, for the subservient Fleming was still a young man, and likely to continue nuiny years the tool of the Govern- ment. ^ In the midst of these gloomy anticipations, on the loth day of October, 1G13, the joyful news was spread of his sudden death. I do not know, (S Justice and I have taken no pains to ascertain, *'''*"'"k- 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 in- competency 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 Com- mon Pleas, the position for which nature had intended him.* He dwindled the more rapidly into insigni- ficance from the splendour of his immediate successor. * I have since learned (but it is not ham for some generations. The Chief worth while to alter the text) that he was Justice appears to have had a residency l»uried at Stoneham in Hampshire; that in the Isle of Wight. The name of "Sir his will, dated 21st July, 1610, was Thomas Fleming, L. C. J. of England," proved 30th October, 1613; that his appears in the li.st of the members of a eldest son intermarried with a daughter Bowling-Grten Club established in the of Sir Henry Cromwell, and that their island, who dined together twice a week, descendants remained seated at Stone- (Worsley's Isle of Wight, p. 223.) 282 SIK EDWAED COKE. Chap. VII. CHAPTER VII. LIFE OF LORD CHIEF JUSTICE SIR EDWARD COKE, FROM HIS BIRTH TILL HE WAS MADE CHIEF JUSTICE OF THE COURT OF COMMOIJ PLEAS. We now come to him who was pronounced "by his Ai rit of Si Contemporaries, and is still considered, the Edward gre atest oracle of our municipal jurispru- dence, — -who aiiorded a bright example of judicial independence, — and to whom we are indebted for one of the main pillars of our free constitution. Unfortunately, his mind was never opened to the con- templations of philosophy; he had no genuine taste for elegant literature; and his di,s]iosition was selfish, overbearing, and arrogant. From his odious defects, justice has hardly been done to his merits. Shocked by his narrow-minded reasoning, disgusted by his utter contempt for method and for style in his com- positions, and sjTnpathising with the individuals whom 1 he insulted, we are apt to forget that "wjihout Sir Edward Coke the law by this time had been like a } ship without ballast ;" * that when all the other Judges ba'sely succumbed to the mandate of a Sovereign who wished to introduce despotism under the forms of juri- dical procedure, he did his duty at the sacrifice of his office ; and that, in spite of the blandishments, the craft, and' the violence of the Court of Charles I., lie framed and he carried the Petition of Eight, which contained an ample recognition of the liberties of Eng- ^ lishmen — which bore living witness against the law- * Words of Lord Bacon. A.D. 1551. SIR EDWARD COKE. 283 less tyranny of tliu appiMjachinji; government without parliaments — which was appealed to with sucli success when parliaments were resumed, and which, at the Kovolution in 1688, was made the basis of the happy settlement then permanently e.sta1ili.shed. It shall ho my object in this memoir fairly to delineate his career and to estimate his character. Sir Edwaui) Coke, like most of my Chief Justices, was of a jrood family and resiiectable con- , . . MM 1 /',i Ti 1 • i 1 Ills family. nections. I he early Chancellors, being taken from the Church, were not unfrefj[Uently of low origin ; but to start in the profession of the law required a long and expeiisive education, wliicli only the highe^ genf fy " could afford for their sons. The Cokes Ead been settled for many generations in the county of Norfolk. As the name does not correspond very aptly with the notion of their having come over with the Conqueror, it has been derived from the British word "Cock," or "Coke," a Chief; but, like '-Butler," " Taylor," and other names now ennobled, it much more probably took its origin from the occupation of the founder of the race at the period when surnames were first adopted in England. Even in the reigns of Elizabeth and James I., Sir Edward's name was fre- quently spelt Cook. Lady Hatton, his second wife, who would not assume it, adopted this spelling in writing to him, and according to this spelling it has invariably been pronounced.* Camden has traced the pedigree of the family to William Coke of Doddington, in Norfolk, in the reign of King John. They had risen to considerable distinction under Edward III., when Sir Thomas Coke was made Seneschal of Gas- coigne. From him, in the right male line, was de- • It is amusing to observe the efforts adding a final e, and by doubling conso- made to disguise the numos of trades in nants. proper names, by changing i into y, by 284 EEIGN OF QUEEN ELIZABETH. Chap. VII. scended Eobert Coke, the father of Sir Edward, This representative of the family, although possessed of good patrimonial property, was bred to the law in Lincoln's Inn, and practised at the bar till his death, having reached the dignity of a bencher. He married Winifred Knightley, daughter and co-heiress of William Knightley, of Margrave Knightley, in Norfolk, With her he had an estate at Mileham, in the same county, on which he constantly resided, unless in term time and during the circuits. Here, on the 1st of February, 1651-2, was born TT. u_.,- Edward, their only son. He came into the His birth. Z' world unexpectedly, at the parlour fire-side, I before his mother could be carried up to her bed ; and, ifrom the extraordinary energy which he then dis- played, high expectations were entertained of his future greatness.* This infantine exploit he was fond of narrating in his old age. His mother taught him to read, and he ascribed to her tuition the habit of steady application which stuck to him through life. In his tenth year he was sent to the free grammar school at Norwich. He had been , , here but a short time, when he had the At school. . T . r> 1 misfortune to lose his father, who died in Lincoln's Inn, and was buried in the church of St, Andrew, Holborn.f His mother married again; but his education was most successfully continued by Mr, Walter Hawe, the head master of his school, under whom he continued seven years, and made considerable * " PrEBdicabat mirl quidpiam ejus " Monumentum Roberti Coke de Mile- Genitura; Matrem ita subito juxta ham, in Comitatu NorfolciiB Annig. focum intercipiens ut in thalamum cui lllustriss. Hospitii Lincolniensis quon- suberat non moveretur. Locum ipsum dam socii Primarii : Qui ex Winefrida ipse mihimet demonstravit."— .Speiw. uxore sua, Gut. Ivnightley filia, bos sus- Iceniasive Norf oleics, p. 150. cepit liberos; Edwardum Coke, filium, f Sir Edward, when Attorney General, Majestatis Eegiae Attornatum General, caused a monument to be erected there &c. to his memory, with an inscription be- " Obiit in Hospitio pnedicto 15 die ginning thus :— Nov. a.d, 1561, Eliz. 4, Etat. 8U« 48." A.D. 1571. SIR EDWARD COKE. 285 proficiency in classical karniuj;. If c w as more re- markable, however, for memory than imaginatTon, and he EaH~as"^uch tlofight in cramming' the niles of pro- sody in doggrel verso as in perusing the finest passages of Virgil. lie had reached his sixteenth year hefore he went to the University — a late age, according to '' . ■=" ' O A.D. 1567. the custom of that time ; but he afterwards At tho considered it a great advantage that he '^'^•''^"y- never ^'preproperously" entered on study or business. On the 25th of Octol)er, loG7, he was admitted a pensioner of Trinity College, Cambridge. "We learn nothing from ETmself or others of the course of study which he pursued, AVhitgift, afterwards Archbi.shop of Canterbur}-, is said to have been his tutor, and he was no doubt well drilled in the dialectics of Aristotle; but he never displays the slightest tincture of science, and, unlike Bacon, who came to the same college a few years after him, and, while still a boy, meditated the reformation of philosophy, ho seems never to have carried his thoughts beyond existing institutions or modes of thinking, and to have laboured only to com- prehend and to remember what he was taught. He had a much better opinion than Bacon of the acade- mical discipline which then prevailed, and in after life he. always spoke with gratitude and reverence of his Alma Mater. Yet he left Cambridge without taking a dake, neither I nor himself could tell what, as if he had been born Attorney Qeneral; and, in the end, bade me ' not meddle with the Queen's business, but with mine own, and that I was unsworn,' &c. I told him, ' sworn or un- sworn was all one to an honest man, and that I ever set my service first and myself second, and wished to God that he would do the like.' Then he said ' it were good to clap a cap. uthtgatum upon my back.' To which I only said ' he could not, and that he was at a lault, for that he hunted on an old scent.'* He gave me a number of disgraceful words besides; which I answered with silence, and showing that I was not moved with them.'"t The enmity between them being still further exas- perated by subsequent conflicts, Bacon at length wrote the following letter of seeming defiance, but couched in terms which it was thought might soften Sir Edward, * This is supposed to allude to pro- f Bacon's Works, ed. 1S19, vol. vi. CCS8 of outlawry against Bacon at the p. 46. suit of a usurer. X 2 308 EEIGN OF JAMES I. Chap. VII. or, at any rate, induce him to think it for his advantage to come to a reconciliation : — " Mr. Attorney, " I thouglit it best, once for all, to let you know in plain- , , ness what 1 find of you, and what you shall find of remon- '^^ of me. You take to yourself a liberty to disgrace strance to and disable my law, my experience, my discretion : ^°^^- what it pleaseth you, I pray, think of me : I am one that knows both mine own wants and other men's ; and it may be, perchance, that mine mend, and others' stand at a stay. And surely I may not endure in public place to be wronged without repelling the same, to my best advantage to right myself. You are great, and therefore have the more enviers, which would be glad to have you paid at another's cost. Since the time I misW the Solicitor's place (the rather I think by your means), 1 cannot expect that you and 1 shall ever serve as Attorney and Solicitor together; but either to serve with another on your remove, or to step into some other course, so as I am more free than I ever was from any occasion of unworthy conforming myself to you more than general good manners or your particular good usage shall provoke ; and if you had not been short-sighted in your own fortune (as I think), you might have had more use of me. But that side is passed. I write not this to show my friends what a brave letter I have written to Mr. Attorney. I have none of those humours ; but that I have written it to a good end, that is, to the more decent carriage of my master's service, aud to our particular better vinderstanding one of another. This letter, if it should be answered by you in deed and not in word, I suppose it will not be worse for us both, else it is but a few lines lost, winch for a much smaller matter I would have ad- ventured. So this being to yourself, I for my part rest," &c.* But Coke -was inflexible, and, as long as he remained at the bar— encouraging only men who might be use- ful, without being formidable to him — would bear " no brother near his throne." The breaking out of the Gunpowder treason en- Nov. 5, 1605. hanced, if possible, his importance and his ducts the' superciliousness. The unravelling of the plot prosecution was entirely intrusted to him. He persun- Fawkes. ally examined, many times, Guy Fawkes and the other prisoners apprehended when the plot * Bacon's Works, iv. 570, / A.D. 1606. SIR EDWARD COKE. 309 was discovered, Imt it is believed that they were not ill geueiiil subjected to the rack, as they did not deny their dcsij^n to blow into the air the King and all his court, with all the members of both houses of parlia- ment.* When the trial came on, Coke opened the case to the jury at enormous length, dividing his jan.27, discourse after the manner of the ago : " The ^•*'"'- considerations concerning the powder treason," said he, "are in number eight: that is to say, 1. The persons by whom; 2. The persons against whom; 3. The time when; 4. The place where; 5. The means; 6. The end; 7. The secret contriving; and, lastly, the admirable discovery thereof." Under the first head, after reca})itulating all the plots, real or imagi- nary, to overturn the I'rotestant government, which the Eoman Catholics were supposed to have entered into since the Reformation, ho boasted much of the clemency of Queen Elizabeth, averring that, " in all her Majesty's time, by the space of forty-four years and upwards, there were executed in all not thirty priests, nor above five receivers and harbourers of them." Perhaps his style of oratory may best be judged of by the conclusion of his commentary upon the seventh head: — **S. P. Q. R. was sometimes taken for these words, -ScTaa^us populusque Romanus, the senate and people of Rome ; but now they may truly be expressed \.hus,>StuUus j'Opidus qunsrit lioiiKtm, a foolish people that runneth to Rome. And here I may aptly • Guy, however, was made to " kiss mountains ! ! !" Two fac-similes of his the Duke of Kxeter's daughter," for he signature are to be seen in Jardine's long refused to say more than th.it "his Criminal Trials: the first in a good bold object was to destroy the parliament as hand, before torture ; the second after the sole means of putting an end to re- torture, exhibiting the word "Guido" ligious persecution." A .Scottish noble- in an almost illegible scrawl, and two man having asked him " for what end ill-formed strokes in place of his sur- he had collected so many barrels of gun- name — apparently having been unable powder?" he replied, "To blow the to hold the pen any longer.— Jardine's Scottish beggars back to their native Grim. Tr. p. 17. 310 KEIGN OF JAMES I. Chap. VII. narrate the apologue or tale of the cat and the mice. The cat havino; a long time preyed upon the mice, the poor creatures at last, for their safety, contained themselves within tlieir holes ; but the cat, finding his prey to cease, as being known to the mice that he was indeed their enemy and a cat, deviseth this course following, viz. changeth his hue, getting on a religious habit, shavetli his crown, walks gravely by their holes, and yet perceiving that the mice kept their holes, and looking out sus- pected the worst, he formally and father-like said unto them, ' Quod fueram non sum, f rater, caput aspice tonsum! Oh, brother ! I am not as you take me for, no more a cat ; see my habit and shaven crown !' Hereupon some of the more credulous and. bold among them were again, by this deceit, snatched up ; and therefore, when afterwards he came as before to entice them forth, they would come out no more, but answered, ' Co>- tibi restat idem, vix tibi prcesto fdem. Talk what you can, we will never believe you ; you have still a cat's heart within you. You do not watch and pray, but you watch to prey.^ And so have the Jesuits, yea, and priests too ; for they are all joined in the tails like Samson's foxes. Ephraim against Manasses, and Manasses against Ephraim ; and both against Judah." "VVlien Coke came to the last head, lie showed the extent to which courtly flattery was in that age pro- fanely carried. On the receipt of the mysterious letter to Lord Monteagle, saying, " thoughe theare be not the apparence of ani stir, yet i saye they shall receyve ^ a terribel blowe this parleament, and yet they shall not seie who hurts them," the Council before whom it was laid, without consulting the King, immediately " suspected the true nature of the plot, and took mea- sures to guard against it. The Earl of Salisbury, in his circular giving the first account of it, said, " We conceived that it could not by any other way be like to be attempted than with powder, while the King was sitting in that assembly : of which the Lord Chamber- lain conceived more probability because there was a great vault under the said chamber. We all thought fit to forbear to impart it to the King until some three or four days before the session."* Yet Coke now * Winwood, ii. 171. A.D. 1606. SIR EDWARD COKE. 311 undertook to show " how tho Kiii«^ was divinely illu- minated by Almighty God, the only ruler of jjrinees, like an angel of God, to direct and point out as it were to tho very place — to cause a search to be made there, out of those dark words of the letter concerning a ter- rible blow." The prisoners were undoubtedly all guilty, and there was abundant evidence against them ; but we must deplore the manner in which Coke indulged in his habit of insulting his victims. When Sir Evorard Digby, intovriipting him, said " that he did not justify the fact, but confessed that he deserved the vilest death and the most severe punishment that might be, but that he was an humble petitioner for mercy and some moderation of justice," Coke replied, with a cold-blooded ci-uelty which casts an eternal stain upon his memory, " that he must not look to the King to be honoured in the manner of his death, having so far abandoned all religion and humanity in his action ; but that he was rather to admire the great moderation and mercy of the King in that, for so exorbitant a crime, no new torture answerable thereto was devised to be inflicted on him. And for his wife and children : whereas he said that for the Catholic cause he was content to neglect the ruin of himself, his wife, his estate, and all, he should have his desire, as it is in the Psalms : Let his wife be a widow, and his children vagabonds ; let his posterity be destroyed, and in the next generation let his name be quite put out." I am glad for the honour of humanity to add, from the report, " Upon the rising of the court. Sir Everard Digby, bowing himself towards the Lords, said, ' If I may but hear any of your Lordships say you forgive me, I shall go more cheerfully to the gallows.' Where- unto the Lords said, ' God forgive you, and we do.' "* • 2 St. Tr. 159-196. 312 EEIGN OF JAMES I. Chap. VII. There was still greater interest excited by the case ^ . , , of Garnet, the Superior of the Jesuits, who Trial of T 1 • • Garnet the was suspected of havmg devised the plot — March 28. who had Certainly concealed it when he ^^^^' knew it — but against whom there was hardly any legal evidence. His trial came on at the Guild- hall of the city of London, King James being present, with all the most eminent men of the time. Coke tried to outdo his exertions against the conspirators who had taken an active part in preparing the grand ex- plosion. When he had detailed many things which took place in the reign of Elizabeth, he turned away from the jury and addressed the King, showing how his Majesty was entitled to the crown of England as the true heir of Edward the Confessor as well as of William the Conqueror, and how he was descended from the sovereign who had united the white and the red roses. " But," exclaimed the orator, " a more famous union is, by the goodness of the Almighty, perfected in his Majesty's person of divers lions— two famous, ancient, and renowned kingdoms, not only without blood or any opposition, but with such an universal acclamation and applause of all sorts and degrees, as it were with one voice, as never was seen or read of. And therefore, most excellent King, — for to him I will now speak, — " Cum triplici fulvum conjunge leone leonem, Ut varias atavus junxerat ante rosas : Majus opus varios sine pugna unire leones. Sanguine quam varias consociasse rosas." He again asserted that a miracle had been worked to save and to direct the King : " God put it into his Majesty's heart to prorogue the parliament ; and, fur- ther, to open and enlighten his understanding out of a mystical and dark letter, like an angel of God, to point to the cellar and command that it be searched ; A.D. 1606. SIR EDWARD COKE. 313 80 that it was discovered thus miraculously but oven a few hours Leforo the dcsigu should have been exe- cuted." Thus ho described the prisoner: " He was a corrector of the common law print with Mr. Tottlo the printer, and now he is to bo corrected by the law. He hath many gifts and endowments of nature — by art learned — a good linguist — and by profession a Jesuit and a Superior. Indeed, he is superior to all his predecessors in devilish treason — a doctor of Je- suits; that is, a doctor of six Z)'«, — as Dissimulation, Deposing of princes. Disposing of kingdoms. Daunting and Deterring of subjects, and Destruction." Then he wittily and tastefully concluded : " Qui cum Jesu itis, non itis cum Jesuitis, for they encourage themsehes in mischief, and commune among themselves secretly how they may lay snares, and say that no man shall see them. But God shall suddenly shoot at them with a swift arrow, that they shall be wounded ; insomuch that whoso seeth it shall say, ' this hath God done,' for they shall perceive that it is his work."* The prisoner was found guilty ; but, giving credit to all the depositions and confessions, they did not prove upon him a higher oflFence than misprision of treason, in not revealing what had been communicated to him in confession : and execution was delayed for two months, till, after mi\ch equivocation, he was induced by various contrivances to admit that the plot had been mentioned to him on other occasions, although he averred to the last that, instead of consenting to it, he had attempted to dissuade Fawkes and the other conspirators from persisting in it. This was the last prosecution in which Coke ap- peared before the public as Attorney General. He had filled the office above twelve years — the most dis- creditable portion of his career. While a law officer • 2 St. Tr. 217-358. 314 EEIGN OF JAMES I. Chap. VII. of the Crown, he showed a readiness to obtain con- victions for any offences, and against any individuals, at the pleasure of his employers ; and he became hardened against all the dictates of justice, of pity, of remorse, and of decency. He gave the highest satis- faction first to Burleigh, and then to his son and suc- cessor, Eobert Cecil, become Earl of Salisbury, and all legal dignities which fell were within his reach ; but, fond of riches rather than of ease, he not only despised puisneships, but he readily consented to Anderson and Gawdy being successively appointed to the office of Chief Justice of the Common Pleas, at that time the most lucrative, and considered the most desirable, in Westminster Hall next to that of Lord Chancellor. The Attorney General was supposed to hold by as secure a tenure as a Judge ; and his fees, particularly from the Court of Wards and Liveries, were enormous,* so that he was often unwilling to be " forked up to the bench," which with a sad defalcation of income, offered him little increase of dignity ; for, till the elevation of Jeffreys in the reign of James IL, no common law judge had been made a peer. But, at last. Coke felt fatigued, if not satiated, with amassing money at the bar, and, on the Chief Justice death of Gawdy, he resigned his office of mon pieaT." Attorney General, and became Chief Justice leotft" ^^ ^^^® Court of Common PleasT^As a pre- liminary, he took upon himself the degree of Serjeant-at-law ; and he gave rings with the motto, " Lex est tutissima cassis." Mr. Coventry, afterwards Lord Keeper, whom he had much patronised, acted as his P0NY.| * The salary of Attorney General was f Dug. Or. Jur. p. 102.1 only 81/. 6s. »d., but his oflScial emolu- j I have been favoured, by a learned ments amounted to 7 OOOL a year. Coke's and witty friend of mine, with the fol- private practice, besides, must have been lowing " Note on the Serjeant's Pony.— very profitable to him. When the utter barrister is advanced A.D. 1606. SIR EDWARD COKE. 315 " He wiis sworn in Chnncory as Rorjoant," says Judge Crokc, the ri'i)urtor, "iuid al'tcrwanls wint iHosi-iitly into the Trea.snry of the Common Bench, and there by IVpham, Chief .histice, his party robes were jmt on, ami he forthwith, the same day, was broiiglit to the bar as Serjeant, and presently after, liis writ rend and count plended, he was created Cliief Justice, and sat the same day, and afterwards rose and put off his ]iarty robes and put on his robes as a Judge, and the second day after he went to Westminster, with all the Society of the Inner Temple attending upon him."* The ceremony of riding from Serjeants' Inn to West- minster in the party-coloured rohes of a Serjeant was dispensed with in his case by special favour ; but when Sir Henry Yelverton, on his promotion soon after, re- quested the like privilege, "the Judges resolved that the precedent of Sir Edward Coke ought not to be followed." f 'ad gradum servientis ad lepein,' he gives, as the reporters of all the courts never omit to record, a ring with a motto ; a posy, sometimes more or less applicable to the donor or to the occa- Bion,— sometimes to neither. These rings are presented to persons high in station (that for the sovereign is received by the hands of the Lord Chancellor), and to all the dignitaries of the law, by a barrister whom the Serjeant selects for that honourable service, and who is called his ' pony.' Why ? Simply because the offering he brings is the honorarium, compounding, or composi- tion, which is paid by the learned gra- duate upon his degree of serjeant-at-law. Ignoramus (act ii. scene 7) enters with money in a biig. Ignor. ' Hie est Ugtm pone. Hie sunt sexcentjp coronas pro meo caro corde Rosabella.' Upon which passage says the learned commentator Hawkins : ' Legem pone. This appears to have been a cant term for ready money.' Dr. Heyliu, in his 'Voyage of France,' p. 292, speaking of the Uni- versity of Orleans, ' In the bestowing of their degiees here they are very liberal, and deny no man that is able to pay his fees. Legem ponere is with them more powerful than legem dicere ; and he that hath but his gold ready, shall have a sooner despatch than the best scholar upon the ticket.' In the translation of Rabelais by Ozell, c. xii. book 4, the phrase ' En payant ' is rendered ' the Legem Pone.' ' They were all at our service for the Legem Pone.' .\nd finally, Tu.s.ser, in his Good Husbandly Lessons worthy to be followed by such as will thrive, prefixed to his Four Hundred Points of liood Husbandry, re- commends punctuality in i)ayment of debts by the following distich: ' Use Legem Font to pay at thy day. But use not " Orenius " for often delay.' In the langiiage, therefore, of a Ser- jeant's posy, ' Ex a>quo et bono,' I should say that, regard being had to the valu- able consideration of which he is the bearer, his pony's derivation savours more of the bonut than the equiu." * Cro. Jac. 125. t Ibid. vol. iii. introd. p. 7. 316 KEIGN OF JAMES I. Chap. VIII. CHAPTEE VIII. CONTINUATION OF THE LIFE OF SIR EDWARD COKE TILL HE WAS DISMISSED FROM THE OFFICE OF CHIEF JUSTICE OF THE COURT OF KING'S BENCH. Coke, while Attorney General, was liable to the severest censure : he nnscrupTilously stretched the Hismeri- prerogative of the Crown, showing himself toriouscon- fQj. i]^q time utterly regardless of public duct as a . . . , , Judge. liberty; he perverted the criminal law to the oppression of many individuals ; and the arrogance of his demeanour to all mankind is unparalleled. But he made a noble amends. The whole of his subse- qu'enF~car'eer''ls "entitled to the highest admiration. Although holdihg'^ Ms judicial office at the pleasure of a King and of ministers disposed to render Courts of Justice the instruments of their tyranny and caprice, he conducted himself with as much lofty independence as any who have ornamented the bench since the time when a judge can only be removed from his office for misconduct, on the joint address of the two Houses of Parliament. Not only was his purity unsuspected in an age when the prevalence of corruption is sup- posed by some to palliate the repeated instances of bribe-taking proved upon Bacon, but he presented the rare spectacle of a magistrate contemning the threats of power, — without ever being seduced by the love of popular applause to pronounce decisions which could not be supported by precedent and principle. His manners even became much more bland ; he listened with j)atience to tedious arguments ; he was courteous A.D. 1606-13. SIR EDWARD COKE. 3] 7 wlien it wns necessar}' to intiTpose, anrl, in passing sentence on those wlio were convicted, ho showed more tenderness for them than he had heen accustomed to do for those whom he prosecuted wliile they were still presumed to bo innocent. IIo remained Chief Justice of the Common Pleas above seven years; and, considenn^ Ins . „ ,.„„ — I I 'mm 1 1 I I ' A.D. IDUO— protound learning and unwearied diligence, '^la. we may, without disparagement to any of his suc- cessors, affirm that the duties of the office have never since been performed so satisfactorily. The only case in which he was supposed by any one to have improT)erly attended to the „ c 1 r~i ' ""^ taken Wishes of the Government was that of the ^y inm in PosTNATi. He concurred with the majority the pUt- in holding that all persons bom in Scotland ^'^"' after the accession of James I. to the throne of Eng- land were entitled to the privileges of native-born English subjects. "Wilson, in allusion to it, denounces Coke as " metal fit for any stamp royal."* I think, myself, that the decision was erroneous ; the only plausible analogy to support it — that persons bom in Normandy and Aquitaine were not considered aliens — being explained away by the consideration that those provinces had been reconquered from France, and were considered as held of the crown of England. But our Chief Justice was not much acquainted with inter- national law, and he was satisfied with the doctrine of " remitter " as laid down by Littleton, — applying it to the case of Edward III. and Henry V. recovering the French provinces which had belonged by right or birth to William the Conqueror and Henry II., and which were therefore to be considered, when again annexed to England, as taken by descent, and not by • Life and Reign of King James, p. 41. 318 KEIGN OF JAMES I. Chap. VIII. conquest, — or, as lie called it, by purchase. His opinion, unconsciously to himself, may have been influenced by the efibrts he had made while Attorney General to please the King in bringing about a union with Scot- land ; biit the warm praise which he bestows upon the decision, in reporting it, should remove all doubt as to his sincerity on this occasion, and the inflexibility which led to his downfall should relieve his memory from the scandal of seeking royal favour after being sworn to administer the law as a Judge. A plan was now going forward systematically to He opposes Carry into effect the notion which James Hfgh°COTi-^ entertained, that he was entitled to rule in mission. England' as" an absolute sovereign. One of the engines chiefly relied upon for success was the Court _of High Commission. This had been established, at the accession of Queen Elizabeth,* for cases purely of an ecclesiastical nature, and had been so used during the whole of her reign ; but, as it was governed by no fixed rules, and as it decided without appeal, an attempt was now made to subject all persons, lay and spiritual, to its jurisdiction, and to give it cognizance of tem- poral rights and offences. The Court having pro- ceeded hitherto only by citation, a new attempt was made to send a pursuivant at once into the house of any person complained against, to arrest him, and to imprison him. This matter being discussed in the Court of Common Pleas, Lord Chief Justice Coke, sup- ported by his brethren, determined that the High Commission had no such power ; that the practice was contrary to Magna Charta ; and that, if the pursuivant should be killed in the attempt, the party resisting him would not be guilty of murder.f The authority of the Court of Common Pleas to check the usurpa- * Stat. 1 Eliz. c. 1. ^ t 12 Rep. 49. A.D. 1611-12. SIR EDWARD COKE. 319 tions of tho High Commission by f;;rantinpj prolii- Litious was contested, but Coke successfully supported it, and in various instances fearlessly stopped pro- ceedings before this tribunal which tho King was known to favour.* At last tho ingenious device was resorted to of in- cluding Coke himself among the Judges of the Pligh Commission, in tho hope that he would then no longer oppose it. But he resolutely re- fused to sit as a member of the Court; whereupon " the Lord Treasurer said that the principal feather was plucked from the High Commissioner.s." f This Court, however, when Coke was removed from the bench, re- newed and extended its usurpations, and made itself so odious to the whole nation, that it was entirely swept away by one of the first acts of the Long Parliament. J The High Commission being silenced for a time, Archbishop Bancroft suggested the notable „ ^ , '-'". , He resists expedient of " the King judging whatever the claim of ^ , 1 ,.,!='•''=» „ the King to cause ho pleased m nis own person, tree sit ana try from all risk of prohibition or appeal." Ac- '^"^*^' cordingly, on a Sunday, the King summoned all the Judges before him and his Council, at Whitehall, to know what they could say against this proposal. The Archbishop thus began : — • "The Judges are but the delegates of j'oiir Majesty, and admi- nister tiie law in your name. What may be done by the agent may be done by the principal ; therefore *'"' ^^^^' your Majesty may take wliat causes j'ou may be pleased to de- termine from the determination of the Judges, .md determine them yourself. This is clear in divinity ; such authority, doubtless, belongs to the King by the "Word of God in the Scriptures." Cok-r, (J. J. (all the other Judges assenting): "By the law of England, the King in his own person cannot adjudge any case, • Langdale'scoae, 12Rep. so, 68; Sir J An illegal attempt to revive It by- William Chancey b case, ib. 82. James II. was one of the causes of the + 12 Rep. 88. Revolution. / 1 320 KEIGN OF JAMES I. Chap. VIII. either criminal, as treason, felony, &c., or betwixt party and party concerning liis inheritance or goods ; but these matters ought to be determined in some court of justice, 'i'he form of giving judgment is ideo consideratum est per curiam ; so the Court gives the judgment. Richard III. and Henry VII. sat in the Star Chamber, but this was to consult with the justices upon certain questions proposed to them, and not in judicio. So in the King's Bench he may sit, but tlie Court gives the judgment. Ergo, the King cannot take any cause out of any of his courts, and give judgment upon it himself. No king since the Conquest has as- sumed to himself to give any judgment in any cause whatsoever which concerned the administration of justice within this realm. So the King cannot arrest any man, as laid down in the Year Book 1 H. VII. 7. 4, ^for the party cannot have reraedy against the King.'' So if the King give any judgment, what remedy can the party have ?* We greatly marvelled that the most reverend prelate durst assert that such absolute power and authority be- longs to the King by the Word of God, which requires that the laws even in heathen countries be obeyed. Now it is provided by Magna Charta, and other statutes duly passed and assented to by the Crown, 'Quod tarn majores quam minores justitiam habeant et recipiant in curia Domini Regis.' By 43 Ed. III. c. 3, no man shall be put to answer withoiit presentment before the justices, or by due process according to the ancient law of the land ; and anything done to the contrary shall be void. From a roll of parliament in the Tower of London, 17 Richard II., it appears that a controversy of land between the parties having been heard by the King, and sentence having been given, it was reversed for this, — that the matter belonged to the common law." King James : " My Lords, I always thought, and by my soul I have often heard the boast, that your English law was founded upon reason. If that be so, why have not 1 and others reason as well as you the Judges .?" Coke, C. J. : " True it is, please your Majesty, that God has endowed your Majesty with excellent science as well as great gifts of nature ; but your Majesty will allow me to say, with all re- verence, that you are not learned in the laws of this your realm of England, and I crave leave to remind your Majesty that causes which concern the life or inheritance, or goods or fortunes of your subjects are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it. The law is the golden met-wand and * So Markham, C. J., told Edward IV. Buspicion of treason or felony, as others that " the King cannot arrest a man for his lieges may." A.D. ir.ij. SIR EDWARD COKE. 321 measure to try the causes of your Majesty's subjects, and it is by tilt- IjiSLtliatj*^'-!'" ^lajt'sty is pruLcclcd ia safety amd PeaccT^ ' KiHfj Jamts (in a ^reat ra^o) : " Then 1 am to be unaer the law — which it is treason to affirm." Coke, C.J.: "Thus wrote Brncton, 'Rex non debet esse sub homine, sed sub Deo et Lkoe.' " * This conference made a great sensation on the public mind. We have this account of it in a contemporary letter : — " On Sunday, before the King's going to Newmarket, . . . ray Lord Coke and all the Jud^res of thn common law were before his Majesty, to answer some complaints of the civil lawyers for the general granting of prohibitions. I heard that the Lord Coke, amongst other offensive speech, should ^say to his Majesty that his Hi;;hnL'SS was defended by his laws ; at which saying, and with other speech then used by the Lord Coke, his Majesty was very much otVended, and told him that he spake foolishly, and said that he was not defended by his laws, but by God ; and so gave the Lord Coke, in other words, a very sharp reprehension both for that and other things, and withal told him that Sir Thomas Compton, the Judge of the Admiralty Court, was as good a Judge." t James is said, nevertheless, to have tried his hand as a Judge, but to have been so much perplexed when he had heard both sides, that he abandoned the trade in despair, saying, " I could get on very well hearing one side only, but when both sides have been heard, by my saul I know not which is right." The terror of Cuke, however, was the true reason for alianduning the scheme, for, — if it had not thus been boldly de- nounced as illegal, — by the aid of sycophants it would have proceeded, and much injustice would have been perpetrated. Cuke likewise, for a time, gave a serious check to arbitrary pruceedings in the Courts of the Lord Pre- sident of Wales and of the Lord President of the North. Having been summoned, with his brother 12 Coke, 63. f Lodge's Illustrations, iii. 664. VOL. I, T / 322 KEIGN OF JAMES I. Chap. VIII. Judges, before the King and the Council, on a com- He checks plaint of the prohibitions he had granted the arbitrary against these proceedino;s, he justified fully of other all that he had done, and thus concluded: u Wg ^Q liope that whereas the Judges of this realm have been more often called before your Lordships than in former times they have been (which is much observed, and gives much emboldening to the vulgar), after this day we shall not be so often upon such complaints hereafter called before you." * On this occasion he had a lucky escajDc, for, he says, " the King was well satisfied with these reasons and causes of our proceedings, who, of his grace, gave me his royal hand, and I departed from thence in his favour." ] But Coke incurred the deepest displeasure of his Majesty by declaring against a pretension — uie power of Called a " prerogative "—which might soon auer^thriaw entirely have superseded parliament. It had by ';procia- been usual for the Crown, from ancient times, to issue proclamations to enforce the law; and sometimes they had introduced new regulations of police, which, being of small importance, and for the public benefit, were readily acquiesced in. James, from his accession, began to issue proclamations when- ever he thought that the existing law required amend- ment. At last, on the 7th of July, 1610, the Commons, roused by these extraordinary attempts to supersede their functions, presented an address to the Crown, in which they say — *' It is apparent both that proclamations have been of late years much more frequent than before, and that they are extended not only to the liberty, but also to the goods, inheritances, and live- lihood of men ; some of them tending to alter points of the law, and make them new ; other some made shortly after a session * 12 Coke, 50. t 13 Coke, 33. A.D. 1612. SIR EDWARD COKE. 323 of parliament, for matter directly rcjectcfl in the same pessinn ; otliers appointing punishments to Ix; inflicted before lawful trial and conviction ; some containing; penalties in form of penal statutes ; some referring the punishment of olTenders to courts of arbitrary discretion, which have laid heavy and grievous cen- sures upon the delinquents; some, as the proclamation for starch, accompanied with letters commanding inquiry to 1^ made against transgressors at the quarter-sessions ; and some vouching further proclamations, to countenance and warrant the latter." On Bacon, now Solicitor General, anil in high favour at Court, was impo.sed the delicate task of presenting this address, which he tried to soften by saying — " We are persuaded that the attribute which Was given by one of the wisest writers to two of the best emperors, 'divus Nerva et divus Trajanus,' so saith Tacitus, 'res olim inscKiiabiles miscuerunt, imperium et libertatem,' may be truly applied to your Majesty. For never was there such a conservator of re- gality in a crown, nor ever such a protector of lawful freedom in a subject. Let not the sound of grievances, excellent Sovereign, though it be sad, seem harsh to your princely ears. It 'is but gemitus coJumbce, the mourning of a dove, with that patience and humility of heart which appertaineth to loving and loyal subjects." James, however, thinking that this complaint re- sembled more the roaring of a lion, was much alarmed; and, really believing, from the flatterers who sur- rounded him, that he possessed rightfully the power which he assumed, he ordered all the Judges to be summoned and consulted " whether it did not by law belong to him." Coke says — " I did humbly desire that I might have conference with my brethren the Judges about the answer to the King. To which the Lord Chancellor said that every precedent had at first a com- mencement, and that he would advise the Judges to maintain the power and prerogative of the King, and in cases in which there is no authority or precedent to leave it to the King to order in it according to his wisdom, and for the good of his subjects, or otherwise the King would be no more than the Duke of Venice." Coke, C. J. : " True it is that every precedent hath n commence- Y 2 324 EEIGN OF JAMES I. Chap. VIII. inent ; but where authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to provide that this be not against the law of the land ; for the King cannot, without parliament, change any part of the common law, nor create any offence by his proclama- tion which was not an offence before. But I only desire to have a time of consideration and conference ; for deliberandum est diu quod statuendum est semel." After much solicitation, time was at last given, and the consulted Judges all concurred in an answer drawn by Coke — " That the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point ; for if he may create an offence where none is, upon that ensues fine and imprisonment. Also the law of England is divided into three parts: common law, statute law, and custom ; but the King's proclamation is none of them. Also, malum, aut est malum in se, aut prohibi- tum ; that which is against common law is malum in se ; malum prohibiticm is such an offence as is prohibited by act of parlia- ment. Also it was resolved, that the King hath no prerogative but that which the law of the land allows him. But the King, for preventionof offences, may admonish his subjects by procla- mation that they keep the laws, and do not offend them, upon punishment to be inflicted by the law." * Coke, in reporting these resolutions of the Judges, adds on his own authority, " The King, by his pro- clamation or otherwise, cannot change any part of the common law, or statute law, or the customs of the realm. Also, the King cannot create any ofifence, by his prohibition or proclamation, which was not an offence before, for that were to change the law, and to make an offence which was not ; for uhi non est lex, ibi non est transgressio ; ergo, that which cannot be punished without proclamation cannot be punished with it." | Yet Hume, in commenting on the issuing of procla- mations by James I., has the audacity to say, " The legality of this exertion was established by uniform • 12 Eep. 74. t 12 Coke, 75. A.D. 1613. SUi I;l)^VAUD COKE. 325 and undisputed practice, and was even acknowledged by lawyers, who made, however, this difference between laws and proclamations, that the authority of the former was perpetual, that of the latter expired with the sovereign who emitted them."* Coke met with a very sensible mortification, in being promoted to bo Chief Justice of the King's oct. 25, 1613. Bench, on the dt'ath of Chief Justice Fleming, coke aRninst This office, although of higher rank, was then nia.u- chief considered less desiral)le than the chiefship Kiiig's of the Common Pleas, for the profits of the "^°'^'*' former were much less, with increased peril of giving offence to the Government, and so being dismissed. Coke's seeming promotion was owing to the spite and craft of his rival. Bacon was impatient for the At- torney General's place, filled by Hobart, who was not willing to change it for the chiefship of the King's Bench, but would for that of the Common Pleas. Bacon thereupon sent to the King " reasons why it should be exceedingly much for his Majesty's service to remove the Lord Coke from the place ho now holdeth, to be Chief Justice of England, and the Attorney to succeed him, and the Solicitor the At- torney." Among the reasons urged for this arrange- ment were these : — " First, it will strengthen the King's causes greatly among the Judges, for both my Lord Coke will think himself near a privy councillor's place, and thereupon turn obsequious, and the Attorney General, a new man and a grave person in a Judge's place, will come in well to the other, and hold him hard to it, • Vol. vi. p. 52. We ought not hastily however admirable as a literary com- to accuse him of wilful misrepresentu- position, is a very defective performance tion or suppression, for lie was utterly as a history. Of the supposed distinction unacquainted with English juridical bctv,-con & statute i\nii n proclamation, — writers. Gibbon entered on a laborious that the former was of perpetual obli- study of the Konian cjyil Iftiy^lo 9t.biw gation till repealed, and that the latter to^wriEe'Tiis Ijkcline akd Fall; but lost its force on a demise of the crown, Ihune never had the sliglitest insight — I do not find a trace in any of our into our jurisprudeuce, and bis work, books. 326 EEIGN OF JAMES I. Chap. VIII. not without emulation between them who shall please the King best. Besides the removal of my Lord Coke to a place of less profit, though it be with his will, yet will it be thought abroad a kind of discipline to him for opposing himself in the King's causes, the example whereof will contain others in more awe." The King consented ; Coke was obliged to agree to the translation, under a hint that he might be turned oflf entirely ; and Bacon, now Attorney General, in his Apophthegms thus exults in his own roguery : " After a few days the Lord Coke, meeting with the King's Attorney, said to him, ' Mr. Attorney, this is all your doing ; it is you that have made this stir ! ' Mr. Attorney answered, 'Ah, my Lord, your Lordship all this while hath grown in breadth, you must needs now grow in height, or else you would be a monster.' " There cannot be a doubt that Coke's elevation was meant as a punishment, and that Bacon, the contriver of it, already contemplated his ruin ; but to save appear- ances, he was treated with outward respect, and in a few days afterwards he was sworn of the Privy Council. He took his seat in the Court of King's Bench in Michaelmas Term, 1613, and presided there three years with distinguished ability and integrity. He recon- ciled himself to the loss of profit by the high rank he now enjoyed, and he took particular delight in styling himself " Chief Justice of England," a title which his predecessors had sometimes assumed, although, since the office of Grand Justiciar had ceased to exist, they had usually been only called " Chief Justice of the Court of King's Bench." Hopes were entertained that he really was becoming "obsequious." A "Benevolence" being demanded to supply the pressing necessities of the Ci'own, he munifi- cently gave 2,000L as his own contribution, while very small sums could be squeezed out of his brother Judges ; A.i>. 1615. SIR EDWARD COKE. 327 — the k'pjality of tho Benevolence lieiiij; questioned in the Star Cliamber, after 8ome hesitation ho j,p„i„., ^ pronounceil an OT)inion that it was not illeLral. f|u^iiin<i,shop who was the defendant pleaded for a commendam only in virtue of the royal prenigative. 'Finally,' said he, * let me tell you that you have been in a hurry wherein either party required expe- dition, and you ought to have known that your letter is both couched indecently and f;iils in the form thereof.' " Upon this, all the twelve threw themselves on their knees and prayed for pardon. But althougli Coke ex- pressed deep sorrow for having failed in form, he still manfully contended that — " Obedience to his ^Majesty's command to stay proceedings ■would have been a delay of justice, contrary to law and contrary to the oatiis of the Judges ; moreover, as the matter had been managed, the prerogative was not concerned." Kinfj : " For judges of the law to pronounce whether my prerogative is con- cerned or not is veiy preposterous management, and I require you my Lord Chancellor to declare whether I that am King, or the Judges, best understand my prerogative, the law, and the oath of a Judge." Lord Chancellor EUesmerc : " With ail humility, your Majesty will best be advised in this matter by your ^Majesty's counsel learned in the law now standing before you." Bacon, A. G. : " Your ^Majesty's view of the question none can / 336 EEIGN OF JAMES I. Chap. VIII. truly gainsay, and, with all submission, I would ask the reverend Judges, who so avouch their oaths, whether this refusal of theirs to make a stay, that your Majesty might be consulted, was uot nearer to a breach of their oaths ? They are sworn to counsel the King ; and not to give him counsel until the business is over, is in effect not to give him counsel at all when he requires it." Coke, 0. J.: "Mr. Attorney, methinks you far exceed your authority ; for it is the duty of counsel to plead before the Judges, and not against them." Bacon, A. O. : " I must be bold to tell the Lord Chief Justice of England, as he styles himself, that we, the King's counsel, are obliged by our oaths and by our offices to plead not only against the greatest subjects, but against any body of subjects, be they courts, judges, or even the Commons assembled in parliament, who seek to encroach on the prerogative royal. By making this challenge, the Judges here assembled have highly outraged their character. Will your Majesty be pleased to ask the Lord Coke what he has to say for himself now, and graciously to decide between us?" King : "My Attorney General is right, and I should like to know what further can be said in defence of such conduct." Coke, C. J. : "It would not become me further to argue with your Majesty." Lord EUesmere, C. : " The law has been well laid down by your Majesty's Attorney General, and I hope that no Judge will now refuse to obey your Majesty's mandate issued under the like circumstances." In the belief that Coke was as effectually humbled as the other Judges, the following question was put to them : " In a case where the King believes his prerogative or interest concerned, and requires the Judges to attend him for their advice, ought they not to stay proceedings till his Majesty has consulted them?" All the Judges except Coke: "Yes ! yes ! ! yes ! ! ! " Coke, C. J. 7 "When the case happens, I shall do that WHICH SHALL BE FIT FOR A JUDGE TO DO." This simple and sublime answer abashed the At- torney General, made the recreant Judges ashamed of their servility, and even commanded the respect of the King himself, who dismissed them all with a command to keep the limits of their several courts, and not to suffer his prerogative to be wounded,— concluding with these words, which convey his notion of the free con- A.n. 1C16. SIR EDWARD COKK. 337 stitiition of England : " for I well know tho true and ancient common law to Ijo the most favourable to Kings of any law of tho world, to which law I do advise you my Judges to apply your studies."* In spite of the oftenco thus given to the King, the Chief Justice might have been allowed ue stops a long to retain his office if he would have imVoof*' sanctioned a jol) of Villiers, the new fa- »"<;kinghani. vourite, who, since the fall of the Earl of Somerset, had been centralising all power and patronage in his own hands. The chief clerkship in the Court of King's Bench, a sinecure then worth 4000/. a year, in tho gift of the Chief Justice, was about to become vacant by the resignation of Sir John Eoper, created Lord Teyn- ham. It had been promised to the Earl of Somerset, and the object was to secure it for his successor, although there was now a plan to apply the profits of it to make up the very inadequate salaries of the Judges.f Bacon undertook, by fair or foul means, to bend the resolution of Coke, and, after a casual con- versation with him, thus wrote to Yilliers, pretending to have fully succeeded : — " As I was sitting by my Lord Chief Justice, one of the Judj:;es asked him whether Roper were dead. He said that for his part he knew not. Another of the Judf^es answered, ' It should con- cern you, my Lord, to know it.' Wherefore he turned his speech to me, and said, ' jS'o, Mr. Attorney, I will not wrestle now in my latter times.' ' My Lord,' said I, ' you speak like a wise man.' ' Well,' said he, ' they have had no luck with it that have had it.' I said again 'those days be passed.' Here you have the dialogue to make you merry ; but in sadness I was glad to i>erceive he meant not to contest." However, when tho resignation took place, Coke • Bacon's Works, ii. 517; Carte, iv. 35; salary of the puisne judges was only- Lives of Chancellors, ii. 249. 1881. 6s. 8d. a year. But this was a great -|- In the reign of James I. the salary increase on the par.siniciny of former of the Chief Justice of the King's Bench times, for the yearly salary of the Chief was only 224?. 19s. 6i/. a year, with Justice of the King^s Bench in the reign 33t. 6s. 8d. for his circuits; and the of Edward I. was only 170 marks. VOL. I. Z 338 KEIGN OF JAMES I. Chap. VIII. denied the promise, and insisted upon his right to dispose of the office for the benefit of the Judges, This was a display of spirit by no means to be forgiven, and the resolution was immediately formed to cashier him. The true reason for this outrage could not be avowed, and nothing could be more creditable to the integrity and ability of Coke than the wretched inventions which June 26 Were resorted to as pretexts for disgracing Coke is sum- him. Being summoned before the Privy re"privf Council, he was first charged with breach f ""(Tous ^^ duty when he was Attorney General in charges concealing a bond given to the Crown by aQToiTigt hull Sir Christopher Hatton. He said that " now twelve years being past, it was no great marvel if his memory was short;" but he showed that he had derived no advantage, and the Crown had suffered no damage, from the alleged neglect. He was then charged with misconduct in his dispute with the Lord Chancellor respecting injunctions. He answered, that if' he was in error he might say " Erravimus cum pa- tribus," and he vouched various authorities to prove that such proceedings in the Chancery had been thought to tend to the subversion of the common law. Lastly, he was charged with insulting the King when called before him in the case of commendams. He admitted that he was wrong in denying the right of the King's counsel to speak on that occasion, their opinion being asked by his Majesty, but he disclaimed all intentional disrespect in returning the answer " that when the time should be, he would do that which should become an honest and a just Judge." He was then desired to withdraw, and a few days Heissus- afterwards he was re-summoned before the L"officeT Privy Council, when, being made to kneel, Chief Justice. ^^^ Lq^^j Treasurer, the Earl of Suffolk, thus pronounced sentence : — A.D. ir,l6. SIR EDWARD COKE. 339 " Sir Edward Coke, I am commanded hy his Majesty to inform You that Ills Majesty is liy no riiuans satisfied with yonrexcuhca. Yet, out of R"_'ard to your fonnur services, he is not dis].osed to deal with you heavily, and thurcfore he hath decreed — 1. That you be sequestered tlie council chamber until his Majesty's plea- sure be farther known. 2. That yrrn forbear to ride your summer circuit as justice of assi/.e. 3. That during the vacation, while you have time to live privately and disjiose yourself at home, you take into consideration and review your books of Reix)rts, wherein, as his Majesty is informed, be many extravagant and exorbitant opinions set down and jniblished for i)Ositive and good law. Amongst other things, the King is not well i)leased with the title of the book wherein you entitle yourself ' J>ord Chief Justice OF EN(}i,AN'n,' whereas by law yon can challenge no more than Lord Chief Justice of the King's Bench. And having cor- rected what in your discretion be found meet in these Rejxjrts, his Majesty's pleasure is that you do bring them privately before himself, so that he may consider thereof as in his princely judg- ment shall be found expedient. To conclude, I have yet another cause of complaint against you. His Majesty has been credibly informed that you have suffered your coachman to ride bare- headed before you, and his Majesty desires that this may be foreborne in future." Coke, C.J. : " 1 humbly submit myself to his Majesty's plea- sure ; but this I beg your Lordsliips to take notice of, and to state to his Majesty from me, with all humility, that if ray coachman hath rude before me bare-headed, he did it at his own ease, and not by my order." The only tlelinquency which could be pressed against him was having; fallen into some mistakes in .„ _. " Alleged his printed books of Reports ; and to make errors in his these the foundation of a criminal proceeding for the purpose of removing him from the bench, must, even in that age, have shocked all mankind. Such was his gigantic energy that, while he was Attorney- General, he had composed and published five volumes of Eeports of Cases determined wliile he was at the bar ; and afterwards, when he was Chief Justice of the Common Pleas, and of the King's Bench, six more, of cases determined by himself and his brother Judges.* • He calls them " Parts." Out of re- " 2d Report," 4c., without any other spect, they are cited as " let Report," designation. z 2 340 EEIGN OF JAMES I. Chap. VIII. They were executed with great accuracy and ability, though tinctured with quaintness and pedantry; and Bacon, who was now disgracefully taking the most active part against their author, had deliberately written, — " To give every man his due, Sir Edward Coke's Keports, though they may have errors, and some peremptory and extrajudicial resolutions, more than are warranted, yet they contain infinite good decisions and rulings." The Chief Justice, instead of going the circuit, was condemned to employ himself in revising these Eeports ; and when Michaelmas Term came round he was again cited before his accusers. Of this meeting we have an account in a letter from Bacon to the King : — " This morning, according to your Majesty's commands, we Oct. 3. have had my Lord Chief Justice of the Common Proceedings Pleas before us. It was delivered imto him that before the'^^ your Majesty's pleasure was, that we should receive Privy an account from him of the performance of a com- Council. mandment of your Majesty laid upon him, which was that he should enter into a view and retraction of such novelties and errors, and offensive conceits, as were dispersed in his Eeports ; that he had had good time to do it ; and we doubted not but he had used good endeavour in it, which we desired now in particular to receive from him. His speech was, that there were of his Reports eleven books, that contained above 500 cases ; that heretofore in other Eeports much reverenced there had been found errors which the wisdom of time had discovered : and thereupon delivered to us the inclosed paper, wherein your Majesty may perceive that my Lord is an happy man that there should be no more errors in his 500 cases than in a few cases of Plowden. . . . " The Lord Chancellor, in the conclusion, signified to my Lord Coke your Majesty's commandment, that, until report made and your pleasure therefore known, he shall forbear his sitting at Westminster, &c. ; not restraining, nevertheless, any other exer- cise of his place of Chief Justice in private." The specific exceptions to the Eeports, with his answers, are still extant, to prove the utter frivolity of A.D. ir.lG. SIR EDWARD COKE. 341 the proceeding. The only thing that coiihl ])o laitl hohl of, with any senil)lance of reason, was a foolisli doctrine alleged to liave lieen laid down extra-judicially in " J)r. Bonhmns Case"* which I have often heard quoted in Parliament against the binding obligation of obnoxious statutes, "that the common law shall con- trol Acts of Parliament, and sometimes shall adjudge them to be merely void ; for where an Act of Parlia- ment is against common right and reason, the common law shall control it, and adjudge it to be void." lie attempted to justify this on former authorities : " In 8 Ed. III., Thomas Tregor's case, Ilerle saith, ' Some statutes are made against law and right, which they that made them, perceiving, would not put them in execution.'" He concluded with Stroud's case, 16 & 17 Eliz., adjudging " that if an Act of Parliament give to any to have cognizance of all manner of pleas within his manor of D., he shall hold no plea whereunto himself is a party for iniquum est aliquem sure rei esse Judicem." But this rests on an implied exception ; and his other authorities resolve themselves into a question of construction, without countenancing the pretension that judges may repeal an Act of Parliament, or that the people are to obey only the laws which they approve, f This conundrum of Coke ought to have been laughed at, and not made the pretence for dis- gracing and ruining him. A few days after, Bacon, in another letter to the King, says,— oa. e. " Now your Majesty seeth what he hath done, you can better judge of it than we can. If upon this ]>r«.)bation, added to former matters, your Majesty think him not fit for your service, we must, in all humbleness, subscribe to your JIajesty, and acknow- ledge that neither his displacing, considering he holdeth his place but during your will and pleasure, nor the choice of a fit man to be put in his room, are council-table matters, but are to proceed • 8 Rep. f. 118 a. f Bacon's Works, vi. 405. 342 EEIGN OF JAMES I. Chap. VIII. wholly from your Majesty's great wisdom and gracious pleasure. So that in this course it is but the signification of your pleasure, and the business is at an end as to him." Bacon next prepared a declaration which the King ■was to make to the Privy Council, touching the Lord Coke, " that upon the three grounds of deceit, contempt, and slander of his government, his Majesty might very justly have proceeded not only to have put him from his place of Chief Justice, hut to have brought him in question in the Star Chamber, which would have been his utter overthrow ; but his Majesty was pleased for that time only to put him off from the council table and from the public exercise of his place of Chief Justice, and to take farther time to deliberate." Then followed a statement of his turbulent carriage to the King's prerogative and the settled jurisdiction of the High Commission, the Star Chamber, and the Chancery, with this cutting observation, — ' that he having in his nature not one part of those things which are popular in men, being neither civil nor affable, nor magnificent, he hath made himself popular by design only, in pulling down the government." Lastly came the objectionable doctrines to be found in his Reports, "which, after three months' time, he had entirely failed to explain or to justify."* It is doubtful whether this Declaration was ever publicly pronounced by the King, but his Majesty was now fully persuaded to proceed to the last exti'emity against the offending Judge ; and, lest he should relent, Bacon wrote him the following letter : — " May it please your excellent Majesty, " 1 send your Majesty a form of discharge for my Lord Coke „ from his place of Chief Justice of your Bench. Nov. 13. „ J- ^^^^ ^jg^ ^ warrant to the Lord Chancellor for making forth a writ for a new Chief Justice, leaving a blank * Bacon's Works, v. 12Y. A.D. 1G16. SIR EDWARD COKE. 343 for the name to be supplied by your Majesty's presence; for I never received your Maj' sty's express pleasure in it. " If your Majesty resolve of Montagu, as I conceive and wish, it is very material, as these times are, tliat your Majesty liave some care that the Recorder succeediuf; be a temperule and dis- creet man, and assured to your [Majesty's service. " God preserve your Majesty."* These proceedings seem to liavo excited considerable interest and synipatliy iu the public uiiud. Mr. Chamberlain wrote to Sir Dudley Carlton, — " Lord Coke hath been called twice or thrice this term before the Chancellor and the Kins^'s learned counsel, to give a reason for divers things delivered in his Reports. It is not the least of his humiliations to be convented in this point before such judges as tSerjeant Crew, Serjeant Montague, and Serjeant Finch, the Attorney General, and the Solicitor, whereof the greater p&rt, except the lSolicitor,t are held no great men in law ; and, withal, to find such coarse usage as not once to be oflered to sit down, and so unrespective and uncivil carriage from the Lord Chan- cellor's men, that not one of them did move a hat or make any other sign of regard to him ; whereof the Queen taking notice, his ^lajesty has since sent word that he would have him well used. "I — A few days after, the same correspondent writes, — " The Lord Coke hancis still in suspense, yet the Queen is said to stand firm for him, and to have been very earnest in his behalf, as likewise the Princes." But on the 14th of November he adds, " The Lord Coke is now quite ofl" the hooks, and order given to send him a supersedeas from executing his place. The common speech is that ibur F's have overthrown and put him down ; that is Pbide, Pbohibitions, PniEiiuNiBE, and Pbe- B0GATIVE."§ On the 16th of November the supersedeas actually received the Eoyal signature, and passed the Great Seal, being in these words : — missed from his office of " For certain causes now moving us, we will that 'J'!*^ •'"^''S* 1111 1 i-11 ° -I • 111°' '"6 King^s you shall be no longer our Chiel Justice to hold Bench. pleas before us, and we command you that you no longer interfere in that oftice, and by virtue of this presence we at once remove and exonerate you from the same." • Bacon's Works, v. 131. J Nichol's Progresses of James, vol. iii. t Yelverton. p. 194. $ Ibid. p. 226. 344 EEIGN OF JAMES I. Chap. VIII. I wish, much that Coke had completed his triumph, by receiving the intelligence with indifference, or at least with composure. But there is extant a letter from Mr. John Castle, written three days after, containing the striking passage : — " A thunderbolt has fallen upon my Lord Coke in the King's He sheds Bench, which has overthrown him from the roots, tears on his The supersedeas was carried to him by Sir George dismissal. Copj^in, who, at the presenting of it, saw that mag- nanimity and supposed greatness of spirit to fall into a very narrow room, for he received it with dejection and tears. Tremor et successio non cadunt infortern et constantem virum." * This momentary weakness ought to be forgiven him, He soon for he behaved with unflinching courage beh;wefwith "while the charges were pending against him ; firmness. ^-^^ ]^q \^q^ yvoil that, by yielding the Chief Clerkship to Buckingham, he might easily have escaped further molestation, but " he stood upon a rule made by his own wisdom, — that a judge must not pay a bribe or take a bribe."f We ought likewise to recol- lect, that although at first he was stunned by the blow, he soon rallied from it, in spite of sore domestic an- noyances ; and that he afterwards not only took ample revenge on his enemies, but conferred lasting benefits on his country. The week after Coke's dismissal, Chamberlain wrote to a friend, — " If Sir Edward Coke could bear his misfortunes constantly it were no disgrace to him, for he goes away with a general apj^lause and good opinion. And the King himself, when he told his reso- lution at the council table to remove him, yet gave this character, that he thought him no ways corrupt, but a good Justice — witli so many other good words, as if he meant to hang him with a silken halter. Hitherto he bears himself well, but especially towards his lady, without any complaint of her demeanour towards him ; though her own friends are grieved at it, and her * See Disraeli's Character of James I., f Hackett's Life of Lord Keeper Wil- p. 125. liame, ii. 120. A.D. ICIG. SIR EDWARD COKE. 345 fathor sent to liiin fo know all the truth, and to show him how much he disallowed her courses, having divided herself from him, and disfurnished his house in Holborn and at Stoke of whatsoever was in them, and carried all the moveables and plaf'? she could come by God knows where, and retiring herself into obscure places both in town and country. He gave a good answer likewise to the new Chief Justice, who sending to him to buy his colhir of S. S., he said' he would not part with it, but leave it to his posterity, that they might one day know that they had a Chief Justice to their ancestor.' lie is now retired to his daughter Sadler's, in Hertfordshire, and from thence it is thought into Norfolk. He hath dealt bountifully with his ser- vants ; anil such as had places under him, he hath willed them to set down truly what they gained, and he will make it gorivile'_'es, and jurisdictions, of _ptyjianient arc ihc ancient and undoubted birth- jiemovesa right and inheritance of the subjects of England ; a'bd " I'rc.tfsta- tha't'the arduous and' urgent affairs concerning the |g°"greedTo King, state, and the defence of the realm, and of the and entered Church of England, and tlie making and maintenance '" "'e of laws, and redress of mischiefs and grievances which ""™ daily happen within this realm, are pi-Q^x;r subjects and matter, of counsel and debate in larliam ent ; a nd that in the h^^n^Iing and proceeding of those businesses, ^ery meiuber of^li£TKnis'ejLatb, arid 6r right ought to have, freedonfTSf^pSe'dli t5 pfopotfud," treat, r ea so n , and bring to conclusion the same ; that the Commons'in parliament have like liliertv and frc dom to treat of those matters in such order i- in ; -liall seem fittest, and that € Ve"iy"such nuuibu rui im- i . ,~. nath like freedom from all iliipeaclunent, TiniirifeAmm. . I molestation (other than by censure of the House itsell) fur or cunceruing any speaking, rea- soning, or declaring of any niatter or matters touching the par- liament or parliament busiuess."t • Vol. i. p. 1355. t 1 Pari. Hist. 1349. % Hj'"!- 1361. 2 B 2 f 372 KEIGN OF JAMES I. Chap. IX. This Protestation, drawn bj Sir Edward Coke, was, ^ ~"""bn liis recominendation, ^aS^opted ^y the House, and entered in the Journals. But when the King heard of it he was frantic. He imme- ^^^ ^^ diately prorogued the Parliament, ordered the Journals to be brought to him at White- hall. Then, having summoned a meeting of the Privy Council, and ordered the Judges to attend, he in their presence " did declare the said Protestation Dec. 30. It- t t to be invalid and of no effect; and did further, manu sua propria, take it out of the Journal Book of the Clerk of the Cmiim'ons'^House"6TTarila^ The King uieut." Having torn it in pieces, he ordered "Trotesta- ^^ entry to be made in the Council Books, tion"from Stating that, if allowed to remain, " it might the Journals. ■• t p i^ , , • . -, have served tor future times to invade most of the rights and prerogatives annexed to the Imperial Crown of this realm." * This violent proceeding was soon followed by a Jan. 6 1622. Proclamation, which, after dwelling on the Parliament misdecds of the Houso of Commons, parti- cularly the Protestation, — " an usurpation which the majesty of a King can by no means endure," — concluded by dissolving the Parliament.! * 1 Pari. Hist. 1363. spirits," and accused them of "sowing t Ibid. 1370. It was very severe on tares with the wheat." Coke and his associates as " ill-tempered A.D. 1621. BIR EDWATJD COKE, 373 CHArTER X. CONCLUSION OF THE LIFK OF SIR EDWARD COKE. Fr om the middle of tlic sixteenth to the middle of the eighteenth century, there were few public men of much note who, in the course of their lives, had not been sent as prisoners to the Tower of London. This dis- Dec. 27,1621. tinction was now acquired by Sir Edward Coke. *'".^.'" 'jT'.. ^^ , ■•• *> mitted tu the Hewas committed fl.lnng wif.}^ gglrlPTT^rjiiTi.^ Tower. and other leaders of the opposition. At the same time, di-ders were given for sealing up the locks and doors of his house in Ilolborn and of his chambers in the Temple, and for seizing his papers.* A general jiardon being about to be published, according to usage on the dissolution of parliament, the Council deliberated for some time respecting the mode by which he should be deprived of the benefit of it. The fir.>t expedient was to exclude him by name ; and then the proposal was adopted of preferring an indictment again.st him, so that he might come within the exception of such as were under prosecution. The ex-Chief Justice being carried to the Tower, and lodged in a low room which had once been a kitclien, he found written on the door of it by a wag — " This room has long wanted a Cook ;" f and he was soon after complimented in the following distich, — " Jus condere cocus potuit, sed condere jura Non potuit ; potuit condere jura cocus." • The "Instnictions to the Gentlemen be witnesses that they meddle with that are to search Sir Edward Coke's nothing that concerns his land or private papers," are still extant. There is an estate. "—CV;«(m .l/.">'. Titus B. vii. 201. injunction " to take some of his servants f ^'Israeli's James I., p. 125. or friends in their company, who shall 374 EEIGN OF JAMES I. Chap. X. Instead of being prosecuted for his speeches in the House of Commons, the true ground of his imprison- ment, he was examined before the Privy Council on a stale and groundless charge, that he had concealed some depositions taken against the Earl of Somerset ; — he was accused of arrogant speeches when Chief Justice, especially in comparing himself to the prophet Samuel; — and an information was directed to be filed against him in the Star Chamber, respecting the bond for a debt due to the Crown, which he had taken from Sir Christopher Hatton. By way of insult. Lord Arundel was sent to him with a message " that the King had given him permission to consult with eight of the best learned in the law on his case." But he returned thanks for the monarch's attention, and said " he knew himself to be accounted to have as much skill in the law as any man in England ; and, therefore, needed no such help, nor feared to be judged by the law : he knew his Majesty might easily find a pretence whereby to take away his head ; but against this it mattered not what might be gaid." * His confinement was, at first, so rigorous that " neither his children nor servants could come at him jf but he was soon allowed to send for his law : books — ever his chief delight, — and he made I considerable progress with his Commentary on Littleton, which now engrossed all hisjthou^hts. After a few months* confinement, the proceedings He is re- against him were dropped ; and in conse- leasedonthe qucnce of the intercession of Prince Charles ofthei'rince he was sct at liberty . | The King, however, finally struck his name out of the list of Privy Councillors, "and, declaring his pdlriotism to pro- * ©'Israeli's James I., 126. King on this occasion : — P. " I pray that f Roger Colie. your Majesty would mercifully consider J The following dialogue is said to the case of Sir Edward Coke." K. " I have passed between the Prince and the know no such man."* P. "Perhaps your He employs himself on " Co. Litt." I ;-3 A.D. 1624. SIR EDWARD COKE. 375 ceed from disappointed ambition, exclaimed in spleen, " IIo is the fittest iustrumont fur a tyrant that ever was in England." * No parliament sittinj; for two years, Sir Edward Coke, during this interval, remained quiet at his seat in Buckinghamshire ; but, there being an intention of calling a new jiarl lament, ho was, in the autumn of 162.5, put into a commissiun with several others, re- quiring thern^ to proceeiT'lo Tieland, and ma'Ee certain inquTrres fhere, — a common mode, in the Stuart rei^s, of inflicting banrshittCiit'Oir obnoxioTrs poll- - "'„, ticians. He had formdrTycomplamed of this cnk.> defeats abuse of the Koyal prerogative ; but on this Danish 'ilim'° occasion he dextrously said, " he was ready ^ inland, to conform to his ^lajcsty's pleasure, and that he hoped in the sister isle to discover and rectify many screat abuses." This threat so alarmed the Court that he was allowed to remain at home. Afterwards, ■when speaking of this practice, he said, " No restraint, be it ever so little, but is imprisonment ; and foreign employment is a sort of honourable banishment. I myself was designed to go to Ireland ; I was willing to go, and hoped, if I had gone, to have found some Mompessons there."! The Spanish match, which the nation so much dis- liked, having been suddenly broken off, and a war with Spain, which was greatly desired in England, now impending, a sudden change arose in the state of parties, and for a time a reconciliation was effected between Buckingham and the leaders of the Puritans. To court them he even went so far as to encourage schemes for abolishing the order of bishops, and selling Majesty may remember Mr. Coke." Feb. 2. l62\-22, in the British Museum. K. " I know no such man. By mysaiil, * Wilson's Life of James I., 191. there is one CapUin Coke, the leader ot f liushworth, i. 523 ; 2 Pari. Hist, the faction in parliament." — Sloane MSS. 257 . 376 EEIGN OF JAMES I. Chap. X. the dean and chapter lands in order to defray the expenses of the war. Under these circnmstances the new parliament was „ , , called, and Sir Edward Coke was returned Coke for a short time for Coventry, having still remained Eecorder Bucking- of that city, and kept up a friendly inter- j,g™'jg,j course with its inhabitants. At the com- mencement of the session he appeared as a supporter of the Government, and he declared Buck- ingham to be the " saviour of his country." * He deserves much credit for carrying the act of par- liament, which is still in force, abolishing monopolies, and authorising the Crown to grant patents securing to inventors for a limited time the exclusive exercise of their inventions as a reward for their genius and industry."!" The most exciting proceeding before this parliament M i6''4 ^^^ ^^® impeachment of Lionel Cranfield, Coke con- Earl of Middlesex, with whom Buckingham pefchmenr" ^^^ quarrelled, after having made him, from of tbe Earl of a City merchant, Lord Hiah Treasurer of Middlesex. "^ . , . England. He was charged with bribery and other malpractices in the execution of his office. Sir Edward Coke, now in his seventy-third year, appeared at the bar of the House of Lords as chief manager for the Commons. After a somewhat prolix preamble respecting impeachments in general, he said, — " The House of Commons have appointed me to present three enormities to your Lordships, much against my incHuation, other * Clarendon says, with great spite, that every subject of England had entire " Sir Edward Coke blasphemously called power to dispose of his own actions, him Our Saviour." — Hist. vol. i. p. 9. provided he did no injury to any of his + Stat. 21 James I. c. 3. Hume says, fellow subjects, and that no prerogative " This bill was conceived in such terms of the king, no power of any magistrate, as to render it merely declaratory ; and nothing but the authority alone of the all monopolies were condemned as con- laws, could restrain that unlimited trary to law and to the known liberties freedom." — Vol. vi. p. 143. of the people. It was then supposed A.D. 1624-5. SIR EDWARD COKE. 377 Members of their House beini; far more sufficient, as well in regard of my great 3ears, as of other accidents ; yet 1 will do it tndy, jilainly, and shortly. The firet is gross and sordid hrihery. Here I crave favour if I should seem tedious in some particulars; for circumstances to thinjis arc like shadows to pictures, to set them out in fuller representation." His long oiwning he at last concluded in these words : — " All this I si'cak by commiiiul ; I pray your Lordships to weigh it well with solemn consideration, and to give judgment according to the merits." The noble defendant liad done various things, as head of the Treasury, wliich wouUl now be considered very scandalous ; but he had only imitated his pre- decessors, and was imitated by his successors. Yet he was found (/uilty, and adjudged " to lose all his offices which he holds in this kingdom ; to be incapable of any office or employment in future; to be imprisoned in the Tower during the King's pleasure ; to pay a fine of 50,000Z. ; never to sit in parliament any more ; and never to come within the verge of the Court."* At the close of the session, Sir Edward Coke retired to Stoke Pogis, and there occupied himself with his legal studies till he heard of the death of James I., in the spring of the following year. He immediately came to his hoTise in Holborn upon the report that there was an intention to March 27. reassemble the old parliament, which had ^''-'• expired with the King who called it; but he found that, althoixgh Charles had expressed a wish Accession of to that effect, a proclamation soon came otit ^^"^^ ^^ for the election of a new parliament. He was again returned for Coventry. At the commencement of the session his demeanour was marked by moderation. Ho entertained ^ •^ . June 22. good hopes of the new sovereign, and was Coke's moUe- resolved to give him every chance of a quiet ''*""°" • Lords' Journals; 1 Pari. Hist. HU-l-tTS. 378 EEIGN OP CHAKLES I. Chap. X. and prosperous reign. Therefore, on t]ie first day of business, when it was expected that he would move, as he had done on former occasions, to appoint a committee for grievances, " he moved that there might be no com- mittee for grievances, because this was the very be- ginning of the new King's reign, in which there can be no grievances as yet."* However, he speedily quarrelled with the Court ; and His motion when the motion for a suppl}^ was made, he quiryinto movcd, by way of amendment, for a com- ture^oFthf ' ^^it^^^e to inquire into the expenditure of the Crown. Crown ; speaking in this wise : — " Necessitas affectata, invincihilis et improvida. If necessity comes by improvidence, there is no cause to give. No king can subsist in an honourable estate without three abilities : — 1. To be able to maintain himself against sudden invasions. 2. To aid his allies and confederates. 3. To reward his well-deserving servants. But there is a leak in the government, whereof these are the causes : — Frauds in the customs — new invented oflSces with large fees — old unprofitable offices which the King might justly take away with law, love of his people, and his own honour — the King's household out of order — upstart officers — voluntary an- nuities or jjensions which ought to be stopped till the King is out of debt and able to pay them — costly diet, apparel, buildings, still increase the leakage : the multiplicity of forests and parks, now a great charge to the King, might be drawn into great profit to him!"t In his reply he said, — " Two leaks would drown any ship. Solum et malum con- cilium, is a bottomless sieve. An officer should not be cupidtis alienee rei, parens suce. Misera servitus est iihi lex vaya aut incognita. Segrave, Chief Justice, was sentenced for giving sole counsel to the King against the commonwealth. I would give lOOOZ. out of my own estate, rather than grant any subsidy now." The committee was carried, and was proceeding so Aug. 12. vigorously in the inquiry into grievances, foSnlJr ■t^^* *^® King abiuptly dissolved the par- parliament. liament. • 2 Pari. Hist. 5. f IWd. 11. A.D. 1626. SIR EDWARD COKE. 379 But a supply being soon indispensable, from the ex- hausted state of the oxehequer, a new par- liament was to be summoned, and to make ^^^- '^^e. ,. -.- .. — Kxpolieiit to it tractable, the notable expedient was m- exclude coke vented of appointing the chiei opposition ,,ariiunient leaders sherifts of r.umtirs, upon the supfTo- j^f^^^si'/.I^iff. sition that they would thereby be disquali- fied to sit in the House of Commons. The ex-Chief Justice Coke, now in his Toth year, was appointed Sheriff" of Buckinghamshire. Having in vain pe- tTftT5TO?rfo" T»"e excused, on account of his ago and the offices which he had heretofore held of much superior diirnity, he demurred to taking the oath u>ually administered to i ,i .|iii. t and prosjjerous reign ; hut, Wing reeklessly violated^ before many years elapsetl a civil war raged in the kingdom, and the dethroned King lost his life on the scaffold. ITie Commons perfonned their part of the engage- ment, for they immediately read a third time, and passed, a bill to grant five subsidies to piy imss"."'^ the King ; and having ordered Sir Edward ".'iril^'^jL Coke to earjy it to the Lords, almost the ^j^r]^""^ "' whole House accompanied him thither, in token of their gratitude and good-will to his Majesty. This good understanding was momentary', for the King still insisted that he had a right to levy tonnage and poundage by his own authority; and when the House of Commons was preparing su.kion pro- a remonstrance against this illegal pro- '■"^''""°- ceeding, he suddenly put an end to the session by a proi-ogation, sapng, " The profession of both Houses in the time of hammering your Petition was, that you nowise trenched upon my prerogative. Therefore, it must needs be that I have thereby granted you no new power, but only confirmed the ancient liberties of my subjects." Ho then resorted to the dishonourable expedient of circulating copies of the PKriTiONOF Right, with the first answer which he had given to it, and he insisted that his prerogatives were in all respects the same as before this parliament was called, so that the right to levy tonnage and poundage was inalienably vested in the Crowu. Sir Edward Coke, although deprived of office, and still excluded from the Privy Council, may be con- sidered as having reached the zenith of his fame. Not 390 EEIGN OF CHAELES I. Chap. X. only was lie admired as a statesman and a patriot, but he now secured to himself the station which he has ever since continued to occupy, as the greatest ex- pounder of the common law of England by giving to the world his " Commentary on Littleton," which had been his laborious occupation for many j^ears. Although the first edition abounded with errors of the press, the value of the book was at once recognised, and he received testimonies in its praise which should have made him rejoice that he had not been wearing away his life in the dull discharge of judicial duties. Parliament again met in the beginning of the fol- jan 21 1629 I'^'^^'^S J^^T, ^ut Sir Edward Coke's name is Coke absent 110* mentioned in the proceedings of the short short ^stormy scssiou which was then held, except once, 1629°°°^ when the Speaker was directed to write to him to request his attendance.* No expla- nation is given of the cause of his absence, and, as he continued at bitter enmity with the Court, he was probably detained in the country by illness. We may conjecture the resentful tone in which he would have exposed the violation of the Petition of Eight, and the prominent part which he would have taken in the famous scene m'the House of Commons immediately before the dissolution, when Speaker Finch was held down in the chair while resolutions were carried assert- ing the jjrivileges of the House, By his absence he had the good luck to escape the imprisonment inflicted on Sir John Eliot, Hollis, and * Journals, 11th Feb. 1629. "In re- —2 Pari. Hist. 463. They wanted his spect that the term ends to-morrow, and assistance in the debate on the claim of the assizes to follow, and divers mem- the King to levy tonnage and poundage bers that are lawyers of this House may without the authority of parliament, be gone, it is ordered that none shall go The same day Oliver Cromwell made forth of town without the leave of the his maiden speech, in which he de- House. Ordered also that the Speaker's nounced a sermon delivered at I'aul's letter shall be sent for Sir Edward Coke." Cross as " flat popery." A.D. 1629-34. SIR EDWARD COKE. 391 the otlier popular ka(ler.«?, who wore afterwards con- victed in the Court of Kiiig'.s Bench of a nii.sdeineanor, fur what they had done as members of the House of Commons. He appeared in public no more. Although he survived six years, no other parliament was up attires called till his remains " had inoifldered info ffompubUc _ ... , .... life. dus^'Charles had resolved to reign by prero- gative aTonc,"and was long able to trample upon public liberty, — till the day of retribution arrived. The first months of Cote's retirement were devoted to the publication of a new edition of his a.i>. 1629- Commentary on Littleton, which was the h^^o^j. most accurate and valuable till the thirteenth, t'ons. given to the world in the end of the last century by those very learned lawyers, Hargrave and Butler. We have scanty information respecting his occupations, and the incidents which befell him, till the clo.sing scene of his life. He continued to reside constantly at Stoke Pogis. He was never reconciled to Ijady Hatton, who, there is reason to fear, grumbled at his longevity. Mr. Garrard, in a letter Avritten in the year 1633, to Lord Deputy Strafford, says, " Sir Edward Coke was said to be dead, all one morning in Westminster Hall, this term, insomuch that his wife got her brother, the Lord Wimbledon, to post with her to Stoke, to get possession gf that place ; but beyond Colebrook they met with one of his physicians coming from him, who told her of his much amendment, which made them also return to London ; some distemper he had fallen into for want of sleep, but is now well again." * Till a severe accident which he met with, he had constantly refused " all dealings with doc- His disiite tors ; " and " he was wont to give God '° pMic solemn thanks ""that he never gave Ins body to • Strafforil's Letters and Dispatches, i. 26b. 392 EEIGN OF CHARLES I. Chap. X. physic, nor liis heart to cruelty, nor his hand to cor- ruption." * When turned' of eighty, and his strength declining rapidly, a vigorous attempt was made to induce him to take medical advice ; of this we have a lively account in a letter from Mr. Mead to Sir Martin Stuteville : — y " Sir Edward Coke being now very infirm in body, a friend of his sent him two or three doctors to regulate his his*friendfto liealth, whom he told that he had never taken physic give him the since he was born, and would not now begin ; and benefit of that he had now upon him a disease which all the Svice! dings of Asia, the gold of Africa, nor all the doctors of Europe could cure — old age. He therefore both thanked them and his friend that sent them, and dismissed them nobly with a reward of twenty pieces to each man." f / Of his accident, which in the first instance produced He meets ^*-* ^crious effects, there is the following with an account entered by him in his diary, in the same firm and clear hand which he wrote at thirty : — " The 3rd of May, 1632, riding in the morning in Stoke, between eight and nine o'clock to take the air, my horse under me had a strange stumble backwards and fell upon me (being above eighty years old), where my head lighted near to sharp stubbles, and the heavy horse upon me. And yet by the providence of Almighty God, though I was in the greatest danger, yet I had not the least hurt, nay, no hurt at all. For Almighty God saith by his prophet David, ' the angel of the Lord tarrieth round about them that fear him, and deli vereth them,' et nomen Domini henedictuTrif for it was his work." But he had received some internal injury by his fall, and from this time he was almost constantly confined to the house. His only domestic solace was the com- pany of his daughter, Lady Parbeck, whom he had forgiven — probably from a consciousness that her errors might be ascribed to his utter disregard of * Lloyd's State Worthies, ii. 112. t Harleian MS. 390, fol. 534 ; Ellis Papers, lit. 263. A.D. 1G29-34. SIR ED^VARD COKE. 393 her inclinations when ho concerted her marriage. She contiiuiL'tl piously to watch over him till his death.* His law books wore still his unceasing delight ; and I ho now wrote his Second, Third, and Fourth Institutes, which, though very inferior to the Fi rst, aro wonderful monuments of his learning and industry. On one occasion, without his privity, his name was introduced in a criminal prosecution. A „ ~ T /v 1 Prosecution person of the name of JeflFes, who seems to f"r » i''"-! have been insane, fixed a libel on the great gate of AVcstrainster Hall, asserting the judgment of Sir Edward Coke, when Chief Justice of the King's Bench, in the case of Magdalen College, f to be treason, calling him traitor and perjured Judge, and scandalising all the profession of the law. The Government thought that this was an insult to the administration of justice not to be passed over, and directed that the otfender should be indicted in the Court of King's Bench. Had ho been brought before the Star Chamber he could hardly have been more harshly dealt with, for he was sentenced to stand twice in the pillory, to be carried round all the courts in Westminster Hall with a de- scriptive paper on his breast, to make submission to every court there, to pay a fine of 1000/., and to find sureties for his good behaviour during the remainder of his life. J, This proceeding was not prompted by any kindness for the ex-Chief Justice ; on the contrary, he was • Extract of letter from Mr. Gerrard hath not been much looked after since, to Lord Deputy Strafford, dated 17th of having lived much out of town, and con- March, 1636: — " Here is a new business stantly these lust two years with her revived; your Lordship hath heard of a father at Stoke." He afterwards goes on strong friendship heretofore betwixt Sir to give an account of her imprisonment Robert Howard and the Lady Parbcck, in the Gatehouse, and her escape in the for which she was called into the High disguise of a page. Commission, and there sentenced to stand + 11 Rep. 06. in a white sheet in the Savoy Church, f Cro. Car. 175. which she avoided then by flight, and 394 EEIGN OF CHAELES I. Chap. X. looked tipon with constant suspicion, and the Govern- ment was eagerly disposed to make him the suhject of prosecution. Buckingham had fallen by the hand of an assassin, but his arbitrary system of government was strenuously carried on by Laud and those who had succeeded to power ; taxes were levied without authority of Parliament; illegal proclamations were issued, to be enforced in the Star Chamber ; and Noy's device of ship-money was almost mature. Sir Edward A.D. 1634. Coke having then resided in the same county Coke sup- with Hampden, and at no great distance posed to have , . . . • x j -j.! x advised irom him, — it is conjectured, without any resistTsh^-" positivo evidence, that they consulted to- money. gether as to the manner in which the law and the constitution might be vindicated. So much is certain, — that, from secret information which the Government had obtained. Sir Francis Windebank, the Secretary of State, by order of the King and Council, came to Stoke on the 1st of September, 1634, attended by several messengers, to search for seditious papers, and, if any were found, to arrest the author. On their arrival they found Sir Edward Coke on his death-bed. They professed that they seizedTHiie would. Under these circumstances, offer him state wh'en^ no personal annoyance ; but they insisted on ^ew-asonhis searching every room in the house except that in which he lay, and they carried away all the papers, of whatever description, which they could lay their hands upon. Among these were the original MS. from which he had printed the Com- mentary on Littleton ; the MS. of his Second, Third, and Fourth Institutes, his last will, and many other papers in his handwriting.* * There is now extant, in the library • rant from the Council were brought to at Lambeth, the original inventory of Whitehall, whereon his Majesty's plea- these papers, entitled " A catalogue of sure is to be Itnown, which of them Sir Edward Coke's papers, that by war- shall remain there." It begins, " A A.D. 1634. SIR EDWARD COKE. 395 It is believed that Sir Edward Coke remained ifrnorant of this outrage, and tliat his dyiny; , T f 1 1 ir 1 1 1 llisdrath. nionients were iinaisturheii. lie had been gradually sinking for some time, and on the 3rd of Sept., 1634, he expired, in the eighty-third year of his age ; enjoying to the last the full possession of his mental powers, and devoutly ejaculating, " Thy kingdom come ! Thy will be done ! " His remains were deposited in the family burying- place at Titleshall, in Norfolk, where a most magnificent marble monument has been erected to his . . 1 ■, . ... „ His funeral. mo7nory, with a very long inscription, of which the following will probably bo considered a sufficient specimen : — "Quique dum vixit, Bibliotheca viva. His epitaph. Mortuus did meruit Bibliothcci' parens. Duodccim Liberorum, tredecim librorum Pater." For the benefit of the unlearned, there is another inscription in the vulgar tongue ; which, after pomp- ously describing his life and death, thus edify ingly concludes, — " I/Came Readek to live so, that thou niayst so die." In drawing his character I can present nothing to captivate or to amuse. Although he had re- ceived an academical education, his mind was ^is igno- • 1 1 • 1 T ' - ranee of wholly ixnimbucd with literature or science; science and and he considered that a wise man could not foriitcru^tur^. reasonably devote himself to any thing ex- cept law, politics, and iBdustrious money-making. He wanscott box, of his arms, accounts and jesty, 9th of September, 1 634." Among revenues." The house in Holborn had the items is " One paper of poetry to his been searched and rifled at the sjime children." This may have been the time, for there is in the library at Lam- poetical version of his Reports, of which beth, another inventory, entitled "A 1 will afterwards give a specimen. The note of such things as were found in a will was destroyed or lost, to the great trunk taken from i'epys, Sir Edward prejudice of the family. The law MSS., Coke's servant, at London, brought to as we shall see, were returned by order B.tgsbot by his Majesty's command- of the Long Parliament, ment, and then broken up by his Ma- 396 SIR EDWARD COKE. Chap. X. values tlie father of English poetry only in as far as the " Canon's Yeoman's Tale " illustrates the statute 5 Hen. IV. c. 4. against Alchymy, or the craft of multiplication of metals ; — and he classes the worshipper of the Muses with the most worthless and foolish of mankind : — " The fatal end of these five is beggary, — the alchemist, the monopotext, the concealer, the informer, and the poetaster. " Ssepe pater dixit, studium quid inutile tentas ? Ma;onides nullas ipse reliquit opes." * He shunned the society of Shakspeare and Ben Jonson, as of vagrants who ought to be set in the stocks, or whipped from tithing to tithing. The Bank- side Company having, one summer, opened a theatre at Norwich, while he was Eecorder of that city, in his next charge to the grand jury he thus launched out against them : — " I will request that yon carefully put in execution the statute against vagrants ; since the makino; whereof, I have found fewer thieves, and the gaol less pestered than before. The abuse of stage jylayers, wherewith I find the country much troubled, may easily be reformed, they having no commission to play in any place without leave ; and therefore, if by your willingness they be not entertained, you may soon be rid of them." f His progress in science we may judge of by his dogmatic assertion that " the metals are six, and no more ; — gold, silver, copper, tin, lead, and iron ; and they all proceed originally from sulphur and quick- silver, as from their father and mother." \ He is charged by Bacon with talking a great deal in company, and aiming at jocularity from the Hm solitary |^g^g]^ . ^^^ ]^q associatcd chiefly with de- pendants, who worshipped him as an idol; and the only jest of his that has come down to us con- * 3 Institute, T4. Raleigh, in the challenge of Sir Andrew t It is supposed to have been out of Aguecheek. — See Boswell'a Shakspeare, revenge for this charge, that Shakspeare ii. 442. parodied his invective against Sir Walter % 3 Inst. ch. sx. SIR EDWAKI) COKE. 397 soles us for the loss of all tlio rest : — Cowell's Inter- preter Ijt'ing cited against an opinion ho had expressed when Chief Justice, ho contemptuously called tho learned civilian Dr. Coic-heeL* Yet we are obliged to regard a man with so little about him that is ornamental, or enter- „, tainmg, or attractive, as a very considerable «« « lawyer personage in the history^oT Lis country. Be long ing to an ago of g^igantic intellect and gigantic attainments, he was admired by his contemporaries, and time has in no degree impaired his fame. ]'• r a profound knowledge of the common law of England, he stands unrivalled. As a Judge, ho was not only above all suspicion of corruption, but, at every risk, ho dis- played an independence and dignity of deportment which would have deserved the highest credit if he had held his office during good behaviour, and could have defied tho displeasure of the Government. To his exertions as a parliamentary leader, we are in no small degree indebted for the free constitution under which it is our happiness to live. Ho appeared opportunely at the commencement of the grand struggle between the Stuarts and the people of England. It was then very doubtful whether taxes were to bo raised without the authority of the House of Commons ; and whether, parliaments being disused, the edicts of the King were to have the force of law. There were other public- spirited men, who were ready to stand up in defence of freedom; but Coke alone, from his energy of character, and f rom his constitutional learning, was able to carry the Petition of Tiight and' upon his model were formed Pym~ and the patriots who vindieated~*tKat noble law on the nieeting of the Long Parliament. ^'*~ -■ - ' , -^^,_ ^ • Cowell had given great offence by mittcd to custody, and his book was asserting that the King was not Ixiund publicly burnt.— Wilson's Memor. Con- by the laws, insumuch that by order of tabrig. p. 60. the House of Commons he was com- 398 SIR EDWARD COKE. Chap. X. He is most familiar to us as an author. Smart legal practitioners, who are only desirous of making au^ho?^ *° money by their profession, neglect his works, and sneer at them as pedantic and anti- quated ; but they continue to be studied by all who wish to know the history, and to acquire a scientific and liberal knowledge of our juridical and political insti- tutions. I have already mentioned his Eeports, the first eleven parts of which he composed and published xllS JtxCpOFtS* 'iii*ii amidst his laborious occupations as Attorney General and Chief Justice. The twelfth and thirteenth parts were among the MSS. seized by the Government when he was on his death-bed. In consequence of an address by the House of Commons to the King on the meeting of the Long Parliament, seven years after, they were restored to his family, and printed. Although inferior in accuracy to their predecessors, they were found to contain many important decisions on political subjectSj which he had not ventured to give to the world in his lifetime.* There are now more volumes of law reports published every year than at that time constituted a lawyer's library.! In the eighty years which elapsed between the close of the Year-Books and the end of the 1 6th century, Plowden, Dyer, and Kielway were the only reporters in Westminster Hall. In the great case of the Postnati Coke tells us of the new plan which he adopted of doing justice to the Judges : — * The first three parts were published forbidden by an ordinance of the Long In 1601, the fourth and fifth in 1603, and Parliament. The whole have been lately the following six parts between 1 606 and most admirably edited by my friend Mr. 1616, when the Reporter presided in Farquhar Fraser. C. P. or K. B. These were all originally f There were then only twelve vo- printed in Norman French. The 12th lumes of Reports extant, of which nine and 13th parts did not see the light till were Yeau-Books. The compilations 1654 and 1658, when they appeared in called "Abridgments," however, were an English translation ; the use of dreadfully bulky, French in law proceedings having been Sm KDWARD COKE. 399 " Ant] now that I liavc taki'ii ujiou ine to make a roI^o^t of their nrf^nmcnts, I ought to do the same as fully, truly, and sincerely as possibly 1 can ; howbeit, seeing tliat almost every judge had in the course of his argument a particular methofl, and 1 must only hold myself to one, 1 shall give no just ofleuce to any, if I chal- lenge that which of right is due to every reporter, that is, to reduce the sum and effect of all to such a method as, ujxjn con- sideration had of all the arguments, the rcj)orter himself thinketh to be fittest and clearest for the right understanding of the true reasons and causes of the judgment and resolution of the case in question." * Notwithstaniling the value of his Eeports, no reporter could ventiire to imitate him. He represents a great many questions to be " resolved " which were quite irrelevant, or never arose at all in the cause ; and these he disposes of according to his own fancy. Therefore he is often rather a coditier or legislator than a reporter ; and this mode of settling or reforming the law would not now be endured, even if another lawyer of his learning and authority should arise. Yet all that he recorded as having been adjudged was received with reverence.f The popularity of his Eeports was much increased by the publication of a metrical abstract or rubric of the points determined, beginning with the name of the plaintiff. Thus : ffubbard: " If lord impose excessive fine, The tenant safely payment may decline."— (4 Rep. 27.) Cau'dry .- " 'Gainst common prayer if parson s;ij' In sermon aught, bishop deprive him may." — (5 Rep. 1 .) Ilis opus magnum is his Commentary on Littleton, which in itself may be anid to contain the whole common law of England as it then Littleton!""" existed. Notwithstanding its want of method and its quaintness, the author writes from such a full mind, with such mastery over his subject, and with such unbroken spirit, that every law student who has • 1 Rep. 4 a. t Bacon's Works, v. 473. 400 SIK EDWARD COKE. Chap. X. made, or Is ever likely to make, any proficiency, must peruse him with delight. He apologises for writing these Commentaries in English, "for that they are an introduction to the knowledge of the national law of the realm ; a work necessary, and yet heretofore not undertaken by any, albeit in all other professions there are the like. I cannot conjecture that the general communicating these laws in the English tongue can work any incon- venience." * This work, which he thus dedicates — "H^C EGO GRAND^VUS POSUI TIBI, CANDIDE LECTOR " — was the valuable fruit of his leisure after he had been tyrannically turned out of office, and in composing it he seems to have lost all sense of the ill usage under which he had suffered, for he refers in his Preface to " the reign of our late sovereign lord King James of famous and ever blessed memory." f The First Institute may be studied with advantage, not only by lawyers, but by all who wish to be well acquainted with the formation of our polity, and with the manners and customs prevailing in England in times gone by. If Hume, who was, unfortunately, wholly unacquainted with our juridical writers, had read the chapters on Knicl;t0' ©erbice, Socage, tSranU ©erjeantic, jFranfealmoignc, ^Surcage, and Fillcnage, he would have avoided various blunders into which he has fallen in his agreeable but flimsy sketch of our early annals. After Bacon, in his Essays and in his philosophical writings, had given specimens of vigorous and harmonious Anglicism which have never been ex- celled. Coke, it must be confessed, was sadly negligent of style as well as of arrangement ; — but he sometimes accidentally falls into rhythmical diction, as in his * Preface. f P. xxsvii. Chap. X. SIR EDWARD COKE. 401 concluding sentence : *' And, for a farewell to our juris- prudent, I wish unto liim the gladsome light of juris- prudence, the lovclinessc of temperance, the stabilitie uf fortitude, and the soliditio of justice." ITis other " In.stitutes," as ho called them, published under an order of the Houso of Commons,* second, are of very inferior merit. The Second ^nhTn^ Institute contains an exposition of Magna "''t"'**- CiiAiiTA and other ancient statutes ; the Third treats of criminal law ;f and the Fourth explains the jurisdiction of all courts in the country, from the Court of Parlia- ment to the Court of Pie Poudro. He was likewise the author of a Book of " Entries," or legal precedents ; a treatise on Bail and Mainprize ; a compendium of Copyhold Law, called " Tlie Complete Copyholder ;" and " A Beading on Fines and Eecoveries," which was regarded with high respect till these venerable fictions were swept away. He represents himself as taking no great delight in legal composition, and I most heartily sympathise with the feelings ho expresses : — " Whilst we were in hand with these four parts of the Insti- tutes, we often having occasion to go into the city, and from thence into the country, did in some sort envy the state of the honest ploughman and other mechanics ; for one, when he was at his work, would merrily sing, and the ploughman whistle some self- pleasing tune, and yet their work hoth proceeded and • Journals, 12th May, 1641. " Upon very same day on which the Earl of debate this day had in the Commons Strafford was beheaded. House of Parliament, the said House did f The most curious chapter is on then desire and hold it fit that the heir " conjuration, witchcraft, sorcery, or en- of .Sir Mward Coke should publish in chantment," in which he tells us of print the Commentary on Magna Charta, wizards the 1'lea.s of the Crown, and the Juris- ,, -n , ., . „ , , .. .... <.ri . 1- . .1 • • By rhimes that can pull down full diction of Courts, according to the mten- •' r-^ «>/ ^ .^u tion of the said Sir Edward Coke; and „ , ,^ , ., , . that none but the heir of the s,ud Sir ^'""^ '°*^^ ^^^^^ wandering moon." Edward Coke, or he that shall be autho- and highly applauds the legislature for rised by him, do presume to publish in punishing with death "such great abo- print any of the aforesaid b(x>ks or any niinations." copy hereof." This order was made the VOL. I. 2d 402 SIR EDWAED COKE. Chap. X. succeeded ; but he that takes" upon him to write, doth captivate all the faculties and powers both of his mind and body, and must be only attentive to that which he collecteth, without any ex- pression of joy or cheerfulness whilst he is at his work."* He had a passionate attacTiment to his own calling, .~ and. lie"was fully convinced that the blessing His passion- -^ , ° ate love of his of hcaven was specially hestowed on those pro essio . ^^^ followed it. Thus he addresses the young beginner : — " For thy comfort and encouragement, cast thine eyes upon the sages of the law that have been before thee, and never shalt thou find any that hath excelled in the knowledge of the laws but hath sucked from the breasts of that divine knowledge, honesty, gra- vity, and integrity, and, by the goodness of God, hath obtained a greater blessing and ornament than any other profession to I their family and posterity. It is an undoubted truth, that the \ just shall flourish as the palm tree and spread abroad as the cedars of Lebanus. Hitherto, I never saw any man of a loose and lawless life attain to any sound and perfect knowledge of the said laws ; and on the other side, I never saw any man of excellent judgment in the laws but was withal (being taught by such a master) honest, faithful, and virtuous." " Wherefore," he says, "a great lawyer never dies improUs aut intestatus, and his pos- terity continue to flourish to distant generations."! In his old age he agreed with the Puritans, but he continued to support the Established Church ; and, a great peer threatening to dispute the rights of the I Dean and Chapter of Norwich, he stopped him by saying, " If you proceed, I will put on my cap and gown, and follow the cause through Westminster Hall."J From his large estates he had considerable ecclesiastical patronage, which he always exercised with perfect purity, saying, in the professional jargon of which he was so fond, " Livings ought to pass by Livery and Seisin, and not by Bargain and Sale.'' § * Epilogue to 4th Institute. presentation the patron should be sworn t See Preface to " Second Report." against simony, as well as the incum- j Lloyd's State Worthies, p. 825. bent.— iJo^'er Coke's Vindication, p. 2C6. } He tried to carry a law that ou every CiiAi'. X. Kill EDWARD COKE. 403 He certainly was a very religioiis, moral, and tem- perate man, altliough ho was suspected of _, giving to La\v a consideraVile portion of ^iition of bis those hours which, in the distribution of time, he professed to allot to Pkayer and the Musks, according to his favourite Cantilena, — " Sex boras somno, totidem dos legibas sequis, Quatuor orabis, des cpulisquf duas. Quod superest ultra sacris largire camoenis." * His usual style of living was plain, yet he could give very handsome entertainments. Lord Bacon tells us that " ho was wont to say, when a "vingf^*"*^ great man came to dinner at his house unex- pectedly, ' Sir, since you sent me no notice of your coming, you must dine with me ; but, if I had known of it in due time, I would have dined with you.' ""j" He once had the honour of giving a dinner to Queen Elizabeth, and she made him a present of a gilt bowl and cover on the christening of one of his children ;$ but he was never very anxious about the personal favour of the sovereign, and he considered it among the felicities of his lot that he had obtained his preferments nee pre- cihus, nee pretio. Notwithstanding his independence, King James had an excellent opinion of him, and, having failed in his attempts to disgrace him, used to say, " Whatever way that man falls, he is sure to alight on his legs." Sir Edward Coke was a handsome man, and was very neat in his dress, as we are quaintly informed by Lloyd : — " The jewel of his mind was put into a fair • Thus varied:— Ten to tbe worid allot, and all to " Six boure to law, to soothing slumber Heaven." seven. See Macaulay's Essays, vol. i. p. 367. Eight to the world allow— the rest to ^ Apopbtliepras, 112. Heaven." + Nicbol's Progresses of Elizabeth, iii. Or — " Six hours to law, to soothing slum- bers seven, 467, 668. 2 D 2 404 SIR EDWARD COKE. Chap. X. case, a beautiful body with comely countenance ; a case which he did wipe and keep clean, delighting andmamers. i^ g^od clothes, well wom ; being wont to say that the outward neatness of our bodies might be a monitor of purity to our souls."* " The neatness of outward apparel," he himself used to say, " reminds us that all ought to be clean within." f The only amusement in which he indulged was a game of bowls ; but, for the sake o:^ his health, he took; daily exercise either in walking or riding, and, till turned of eighty, he never had known any illness except one slight touch of the gout. His temper appears to have been bad, and he gave much offence by the arrogance of his manners. j°°y^t™^°' He was unamiable in domestic life ; and the Svou? '"'''* wonder rather is, that Lady Hatton agreed to marry him, than that she refused to live with him. Nor does he seem to have formed a friend- ship with any of his contemporaries. Yet they speak of him with respect, if not with fondness. " He was," said Spelman, " the founder of our legal storehouse, and, which his rivals must confess, though their spleen should burst bv reason of it, the head of our juris- prudence."! Camden declared that "he had highly 1 obliged both his own age and posterity ;" § and Fuller I prophesied that he would be admired " while Fame has \ a trumpet left her, and any breath to. blow therein." || '' Modern writers have treated him harshly. For ex- ample, Hallam, after saying truly that he was " proud and overbearing," describes him as " a flatterer and tool of the Court till he had obtained his ends."f * Worthies, ii. 297. indicate high genius. t There .ire many portraits and old % Rel. Spel. p. 150. engravings of him extant,— almost all j Britannia, Iceni, p. 351. representing him in his judicial robes, II Worthies, Norfolli, p. 251. — and exhibiting features which, accord- % Const. Hist. i. 455. ing to the rules of physiognomy, do not CuAP. X. SIE EDWAltl) COKE. 405 But he does not seem at all to have mixed in politic8 till, at tlio request of Burlei'rfcre with the regular to read the previous part of this volume, administration of Justice, will be aware that tbe Chanadlor is here || Here he touches Coke, who, in Dr. cgregiou-ly mistaken, for there were Bonham's case, had talked nonsen^e " Chief Justiciars" from the Conf|uest about a statute being void if contrary to till the end of the reign of Henry III. ; reas..n. and the title of "Chief Justice of Eng- % The title which James had assumed land," which Coke a.ssunied, had been without authority of parliament, and by Iwrne by many of his predecessor.s .ifter which he delighted to be adlcd. the nature of the office had been altered. VOL. I. 2 E 418 REIGN OP JAMES I. Chap. XI. actions, cor Regis in manihus Domini^ and ' what is done, factum est a Domino.'' I will not inquire into my vow, but I will pay my vow and pro posse meo. I will endeavour my best. It hath been a fashion of those that have gone before me to excuse them- selves; and this I might do better than they; yet I dare not disable myself, lest I should tax my master's judgment. God I hope will supply what is defective in me. My Lord, what a spiir have you put to prick me forward in mentioning my grand- father!" After enlarging on the merits of this worthy sage, he adds, " I will, for my own part, avoid four iaults : — idleness, corruption, cowardliness, — and I will not be a heady judge. First, I will not be idle nor over busy. For the second, 1 have no need to be corrupt, neither in action nor affection, for I have estate sufficient. And, for my courage, if I fear, let me be amerced: I will be a lion in courage, not in cruelty. And for the fourth, I will b^ glad of good counsel, and I will not be busy in stirring questions, especially of jurisdictions. It comforts me to see tiie sages who sit there [the puisnies]. And yet I am discomfited in three things, in the loss of my profit, pleasure, and liberty. But I will devote myself Deo, Berji, et Legi.^'* The writ "being then read, he took the oaths, mounted to the bench, and was placed in the seat of Chief Justice."!" The new Chief Justice had a very slender stock of law, but much good sense and knowledge of the world. He was pronounced to be "a perfect gentleman," and from the uniform courtesy and kindness with which he treated the bar, there was a general disposition to support him. He had one steady puisne on whom he could rely, Mr. Justice Dodderidge, and with his aid ho not only despatched the business decently well, but, from his ready elocution and power of representation, he was regarded by the public as a great Judge. He always himself felt diffident and uncomfortable, and he often wished that " the time might come when he should hear no more of Executory devises, or Recoveries with double voucher.'" * The motto on his rings when he was f See Cro. Jac. 407. Moore's Reports, called Serjeant. 826-i;30. A.D. 1618. CHIEF JUSTICE MONTACU. 419 The only proceeding of much public interest in his court while ho was Chief Justice was the awarding: of execution acrainst 8ir Walter Seawards o a ^ ^ ^ execution Ealoigh, after the return of this extraordinary afruin.--t sir man from the delusive expedition to Guiana. Raieish, "When it was resolved to sacrifice him with leis. ' a view to appease the indignation of the Spaniards, and it was found that he had done nothing while intrusted with foreign command which could be construed into a capital offence, he was brought up before the Judges of the King's Bench, that they might doom him to die under the .sentence pronounced fifteen years ago, — since which, by authority under the great seal, he had been put at the head of a fleet and an army, and been authorised to exercise the power of life and death over the King's subjects. He now pleaded that this was equivalent to a pardon : — " By that commission," Sciid he, " I gained new life and vigour ; for he that hath power over the lives of others, must surely be master of his own. In the 22d Edw, III., a man was indicted for felony, and he showed a charter whereby it appeared that the King had hired him for the wars in Gascony, — and it was allowed to be a pardon. Under the commission, I undertook a journey to honour mj' Sovereign, and to enrich his kingdom ; but it had an event fatal to me, the loss of my son, and the wasting of my whole estate." Montagu, C.J.: "Sir Walter Raleigh, this which you now sjieak touching your voyage is not to the purix)se ; there is no other matter now in question here but concerning the judgment of death formerly given against you. Tliat judgment it is now the King's pleasure, for certain reasons best known to himself, to have executed, unless you can show gootl cause to the contrary. Your commission cannot in any way help you, for by that you are not pardoned. In felony, there may be an implied pardon, as in the case you cite ; but in treason, you must show a pardon by express words, and not by implication. Tliere was no word tending to pardon in all your commission ; and, therefore, vou must say sometliing else to the pur^x^se; otherwise, we must proceed to give execution." Sir Walter Raleigh : " If your opinion be so, my Lord, I am 2 E 2 420 KEIGN OF JAMES I. Caap. XL satisfied, and must put myself on the mercy of the Kins;, who I know is gracious. Concerning that judgment at Winchester passed so long ago, I presume that most who hear me know how that was obtained ; nay, I know that his Majesty was of opinion that T had hard measure therein, and if he had not been anew exasperated against me, certain I am I might (if I could by nature) have lived a thousand and a thousand years before he would have taken advantage thereof." Montagu, (7. J. : " Sir Walter Ealeigh, you had an honourable trial, and it were wisdom in you now to submit yourself, and to confess that your offence did justly draw down the judgment then pronounced upon you. During these fifteen years you have been as a dead man in the law, and might at any minute have been cut off; but the King in mercy sjDared you. You might justly think it heavy, if you were now called to execution in cold blood ; but it is not so ; for new offences have stirred up his Majesty's justice to move him to revive what the law had formerly cast upon you. I know you have been valiant and wise, and 1 doubt not but you retain both these virtues, which now you shall have occasion to use. Tour faith hath heretofore been questioned ; but I am satisfied that you are a good Christian, for your book, which is an admirable work, doth testify as much. I would give you counsel, but I know you can apply unto yourself far better counsel than I am able to give you. Yet, with the good Samaritan in the Gospel, who, finding one in the way wounded and distressed, poured oil into his wounds and refreshed him, so will I now give unto you the oil of comfort ; though (in respect that I am a minister of the law) mixed with vinegar. Fear not death too much nor too little — not too much, lest you fail in your hopes — nor too little, lest you die pre- sumptuously. The judgment of the Court is, that execution be granted ; and may God have mercy on your soul ! " * It must be admitted that Montagu's language on this occasion forms a striking contrast with the opprobrious epithets which had been used by his predecessor at the original trial ; and I know not that any share of the infamy of the new proceeding is to be imputed to him : he had only to declare what the law was, and he ex- pounded it soundly ; for in strictness the attainder could only be done away with by letters patent under * Jardine's Criminal Trials, vol. i. 4S5-520. A.i). 1620. CHIEF JUSTICE MONTAGU. 421 the great seal, reciting that it was lor treason, and granting a free pardon.* The life of a common law jiidge became more and more irksome to Montagu, lie ci)mi)l;iined not onlj' of the duties east upon him for which he was not alto- gether fit, but of the society he was obliged to keep : sitting all the morning at Westminster, he was expected to dine at Serjeants' Inn, where, in their " compota- tions," his " companions " talked of nothing but the points which they had ruled ui)on their circuits, and the cases depending before them in their several courts. The gaiety he had was " grand day in term," or a " reader's feast," when, for the amusement of the judges, the barristers danced with each other in the halls of the Inns of Court. lie thought he was Ix^tter fitted to be a statesman than a lawyer ; and he was sure that, holding a political office, he should at any rate pass his time more agreeably. At last his wishes were gratified, and, in the end of the year 1(320, he became Lord Treasurer, and was created a peer by the titles of Baron 1620. He Kimbolton in the county of Huntingdon, and Lord High Viscount Mandevil. It is said that this ar- Trea*..rer and a peer. rangement cost him the sum of 20,000/. He by no means found that the change answered his expectations. Buckingham, arbitrary and rapacious, was sole minister, and wished to engross the profits as well as power of all offices under the crown. Lord Chancellor Bacon, who was supposed to be some check upon the favourite, stood on the brink of the precipice from which he was soon after pre- cipitated. The new Viscount was iishered into the House of Lords, with the usual solemnities, on the 30th of * Llngard truly says that the Chief wived in terms of respect unusual on Justice's address to Halelgb was " con- such occa&ions." — Vol. ix. p. 172. 422 KEIGN OF JAMES I. Chap. XI. January, 1621, when the memorable parliament met which put an end to monopolies smd judicial corruption in England. He took an active part in guiding the deliberations of the Peers on the trial of Sir Giles Mompesson, im- peached by the Commons for the oppressions of which he had been guilty, under royal grants giving him the exclusive right to deal in commodities ; — and he was appointed a manager for the Lords in the conferences between the two Houses which ended in the impeach- ment of Lord Bacon for bribery. The conscience- stricken defendant having besought their Lordships to " be merciful to a broken reed," they had only to con- sider of the sentence. A wish was expressed that this should be pronounced by the Viscount Mandevil, long accustomed to judicial proceedings ; but he, considering that the illustrious delinquent had been his rival, his friend, and his patron, — with the delicacy of feeling which always distinguished him, declined the invidious task ; and his successor. Sir James Ley, the new Chief Justice, was appointed speaker for the occasion. It was expected that Lord Mandevil would now receive the great seal ; but he probably did not desire the elevation, and at any rate it better suited the views of the Government to select for the Chief Judge of the land a Welsh curate, who had never been in a court of justice in his life, and who had nothing of law beyond a few scraps which he had picked up when private secretary to a former Lord Chancellor. While he was learning the A B C of equity, the great seal was put into commission, and Lord Mandevil was prevailed upon to consent to be first commissioner. The Duke of Eich- mond, and Sir Julius Cassar, Master of the Eolls, were associated with him ; and the latter did the actual business of the court till it suited Williams to appear as Lord Keeper. A.n. 1631. CUIEF JUSTICE MONTAGU. 423 In less than a twclvonionth from tho time of his reccivinf]; tho Treiisiiror's waml, — on account juiy lo. i63i. of a ditierence with P.utkingham,~ho was .luc^Vtoix? obliged to resign it, and to be contented with l;;',';',/!'^;,,^ the oflSce of Lord Trcsident of the Council* Cuuncii. This office he retained during the remainder of tho present, and the early part of the succeeding reign. Without taking any consi)icuous part, he seems ever after to have acquiesced in, and supported, all the measures of the Court. In con.sequence, in 1626, he was created Earl of Manchester, the preamble of his patent containing a pompous recital of his i)ublic ser- vices. The following year he exchanged the Presidency of the Council for the Privy Seal, which he continued to hold till his death. " When Lord Privy Seal," eays Fuller, " he brought the Court of Pequests into such repute, that what formerly was called the Almes Basket of the Chancery had in his time well nigh as much meat in, and guests about it (I mean suits and clients), as the Chancery itself." f " He was," says Lord Clarendon, " a man of great industiy and sagacity in business, which he delighted in exceedingly ; and preserved so great a vigour of mind, even to his death, tliat some, who had known him in his younger years, did believe him to have much quicker parts in his age than before."! He lived to see the meeting of the Long I'arliament ; but, on account of his years, and the in- fluence of his son, he escaped the vengeance prepared for other authors of the tyranny inflicted on the nation for eleven years, during which no legislative assembly • Clarendon says, " Before the death and, to allay the sense of the dishonour, of King James, by the favour of tho created Viscount Mandeville. He bore Duke of Buckingham lie w;is raised to the diminution very well, as he was a the place of Lord High Treasurer of wise man, and of an excellent temp er. '» England; and within loss than a year — Rebell. i. 84. afterwards, by the withdrawing of that f Fuller, ii. 169. favour, he was reduced to the almost J Rebell. i. 84. empty title of President of ihe Council, 424 EEIGN OF JAMES I. Chap. XI. had been allowed to meet. He was, unhappily, too, much nsed as a check upon the Lord Coventry; and when that Lord perplexed their counsels and designs with inconvenient objections in law, the authority of the Lord Manchester, who had trod the same paths, was still called upon ; and he did too frequently gratify their unjustifiable designs and pretences. He died in lucky time,"* — on the 10th of November, A.D. 1642. ... . 1642, in the eightieth year of his age. It must be admitted that he was possessed of very valuable qualities both for public and private life ; and when we consider how much he accomplished, and the ways to greatness pursued by most of his contemporaries, the negative praise is creditable to him that he can be charged with no act of violence or corruption. Ho piqued himself on his consistency ; and took for his motto, which is still borne by his descendants, " Dis]po-' nendo me, non mutando me'" His eldest son, Edward, was one of the most distin- guished men who appeared in the most inter- sc'endaiits Gsting period of our history, having, as Lord Kimbolton, vindicated the liberties of his country in the senate, as Earl of Manchester in the field, and having afterwards mainly contributed to the suppression of anarchy by the restoration of the royal line.f Charles, the fourth Earl, was created Duke of Man- chester by George I. ; and William, the fifth Duke, is the present representative of Sir Henry Montagu, the Lord Chief Justice.^ * Rebell. i. 85. again acted in this capacity at the t He was a quan legal character, and meeting of the Convention Parliament, I might almost claim to be his biogra- till Lord Chancellor Clarendon was pher, for he was a Lord Commissioner of sworn iu. the Great Seal under the Commonwealth, J The descendants of the first Chief and, as Speaker of the House of Lords, Justice must now be recltoned by hun- conducted their judicial business. He dreds of thousands. Pepys, in his diary A.D. 1577. CHIEF JUSTICE LEY. 425 Wo are now in tlie period of our juritlical annals when tho office of Cliief .Instico of the King's Bench ^^^^^ was considered a step to political advance- i^y,""""^ ment. On the promotion of Chief Justice Montao-u to bo Lord Treasurer, he was succcoded as Chief Justice by Sik James Ley, who, in his turn, was promoted to be Lt)rd Treasurer. This lawyer, although he filled such high offices, and lived to be an Earl, seems to have owed his elevation mainly to his medio- crity, for he never exhilnted much talent either in his jn-ofession or in parliament ; and, nut having committed any consideraljlo crimes, nor conferred any benefits on his generation, he is forgotten in Westminster Hall, and his name is hardly noticed by historians. He was descended of an ancient family, long seated at Ley, in the county of Devon ; but, being a ^^ j^gg vounsrer son, he had to fight his way in the His oritdn world. At the age of sixteen no was sent to tion. Brazen-nose College, Oxford. Having taken a bachelor's degree there, ho was transferred ^"^ ^' "'^" to Lincoln's Inn, where he is said to have devoted himself very assiduously to the study of the common law ; but he seems to have been more distin- guished by agreeable manners than by profound ac- of the 22nd of September, 1665, has the Harry VIII. 'b time to the family, following passage ;— " Among other dis- with tho remainder In the Mnliipllcation course concerning long life. Sir John crown), he did answer the of the Mon- Minnes saying that his grciit-grandfalher King In showing how un- **«"*• was alive in Edward the VI.'s time ; my likely it was that it ever could revert to Lord Sandwich did tell us how few there the crown, but that It would lie a present have been of his family since King Harry convenience to him ; and did show that VI [I., that is to Siiy, the then Chief at that time there were 4000 persons de- Justice, and his son and the Lord Mon- rived from the very body of the Chief tagu, who was father to Sir Sidney, who Justice. It seems the num!x?r of daugh- was his father. .Vnd yet, what is more ters in the family had N-en very great, wonderful, he dici assure us from the and they too had most of them many mouth of my Lord Mont;igu himself, that children, and grandchildren, and great- in King James's time (when he had a grandchildren. This he tells as a most mind to get the King to cut off the en- known and certain truth." tail of some land which was given in 426 EEIGN OF JAMES I. Chap. XI. quirements. After he had been fifteen years at the bar, he had hardly any business ; and his prospects were very discouraging. On the accession of James I. he tried the experiment of becoming a Serjeant, — and this likewise failed ; for he continued without clients in the Court of Common Pleas, as he had been when sitting in the Court of King's Bench. So hopeless was his condition, that he agreed to accept the appointment of Chief Justice of Ireland, — then pretty He goes as much what the office of Chief Justice of New to Ireland. Zealand would now be considered. He con- tinued in exile five years, assisting the King with his new plan of colonising Ulster, and trying to tame the aborigines. Being a man of prudence and address, he was very useful in this employment, and greatly recommended himself to his royal master, who expected lasting glory from civilising a country which had become rather more barbarous since a settlement in it had first been attempted by the English. He is one of the " Worthies " of Lloyd, who, describing his resi- dence in Ireland, says, " Here he practised the charge King James gave him at his going over — 'not to build his estate upon the ruins of a miserable nation, but, by the impartial execution of justice, to aim at civilising the natives instead of enriching himself.' " Ley had at last leave to make a voyage home to his native country, and there he gave such a He'^reti'irns flattering account of the progress which and'heiomes Iceland was making under the new regime wHh James L — ascribing much of it to himself — that James, as a reward for his eminent services, knighted him, gave him leave to resign his Irish Chief Justiceship, made him Attorney of the Court of Wards and Liveries in England, and, by warrant under the Privy Seal, assigned to him precedence in that court A.D. 1610. CHIEF JUSTICE LEY. 4 above Sir Henry Hobart, Att(jrney General to the Crown. His fortune was now made. Till the alxdition of military tenure, brin<;ing along with it the custody of the lands of minors, the riglit of bestowing heiresses in marriage, and other such incidents, the practice in the Court of Wards and Liveries was far mure prolitablo than in any other court ; and Sir James Ley not only had a c:reat income with little labour, but he was much at Whitehall, and contrived to accommodate himself to all the humours of the royal pedant. The order of Baronets being established, he was one of the first batch — no doubt buying his distinction at the usual price. He could not for a moment compare himself with Lord Coke; but when this legal leviathan was pro- nounced to be a pxiblic nuisance, the fashion arose of sa^-ing that a man wuth plain good sense and gentle- manlike habits made the best Chief Justice. Ley's ambition increasing with his wealth, he insinuated that he should make as good a Chief Justice in England as he had done in Ireland ; and, without any great stretch, he asserted that he was as much of a lawyer as Montagu, who was now presiding in the King's Bench, more quietly, and more for the sujiport of the prerogative, than Coke, so renowned for his learning. He went so far as to censure Coke for having opposed the King's desire to sit on the bench himself, like Solomon, and to give judgment between his subjects. To add to his legal reputation, he com]nled and circulated in MS. " A Treatise concerning Wards and Liveries," and "Keports of Cases decided in the Court of Wards and Liveries," which were afterwards printed, and may still be seen in curious collections. Above all, he cultivated Buck- ingham ; and it has been said that he offered the rapacious minister a largo sum of money for the Chief Justiceship when it should become vacant : but this 428 EEIGN OF JAMES I. Chap. XI. statement, I apprehend, proceeded rather from the probability than from any positive evidence of the fact. However the arrangement might have been brought about, when Montagu received the Treasurer's Jan 29 1621. He is staff, the collar of S.S. was put round the jufuiof neck of Sir James Ley, as Chief Justice of the King's Eno;land. The following is the account we Bench. » ^ _ . » have of his installation, on the 1st day of February, 1621: — "The Lord Chancellor came and sat in the Court of King's Bench, and Sir James Ley came betwixt two of the King's Serjeants to the bar, where the Lord Chancellor made a short speech to him of the King's favour and reasons in electing him to that place ; and he, being at the bar, answered thereto, showing his thankfulness, and endeavour in the due execution of his office. He then went into court, and had his patent delivered to him, which was openly read, and was a short recital only that the King had consti- tuted him to be Chief Justice there, commanding him to attend and execute it. He was then sworn." * The very same day he decided that an innkeeper may be indicted for taking an exorbitant price for oats. Objection was taken that the indictment was bad for not alleging with sufficient certainty what was the reasonable price of oats, for it only alleged " quod com- mune pretium avenarum nan fuit ultra 2Qd. the bushel ;" but he held the indictment sufficient in averring " quod predictus A. B. demandavit et cejnt pretium excessivum et extorsivum, viz. 2s. Sd. a bushel." f A few days after, he rixled that it was actionable for one married woman to say to another married woman, " Thou perjured beast, I will make thee stand ui^on a scaffold in the Star Chamber," though, for want of the word " art," they were spoken adjectively, not positively." J * Cro. Jac. 610. + Benson et ux. y.Salletux., Cro. Jac. f Johnson's case, Cro. Jac. 610. 613. A.D. 1621. CHIEF JUSTICE LEY. 429 Diiiinp; tho two yoar.s aiul a half that ho contimiud to preside in the Kiii«;'.s lieiieli, 1 do not find any more imi)ortant point coming before him ; and if we may judge from the Reports, the business of his court must have dwindled away almost to nothing, — I presume from an opinion of his incompetency. But he was engaged as one of the principal actors in a very solemn proceeding. It has been .-.■,. 1 -r 1 1^ 1 1 J -li i Mav 1,1621. said that when Lord 13acon pleaded guilty to n,.is ap- the charge of bribery, alleged against him l^',''"';';!r of by tlie House of Commons, and was deprived l^^^""^'"^ of the great seal. Ley for a .short time became Lord Chancellor.* In reality he was only appointed Speaker of the House of Lords, the great seal having been put into commission. He continued to preside on the woolsack while the House of Lords w;is engaged in some of the most important proceedings which have ever engaged its attention ; and although he was not then a peer, and therefore had no right to debate or to vote, — as the organ of the will of the assembly he acted a conspicuous part in the eyes of the public. At first it was thought that the painful duty would have been cast upon him of calling upon Lord ^^ Bacon to kneel down at the bar, and of uouncsthe S('ii toiler addressing him on the enormity of the oflence against Lord for which he was to receive sentence ; but the illustrious convict was, or pretended to be, too ill to attend, and the Peers, to spare the shame of a man whom they all admired for his genius, and even loved for the blandness of his manners, agreed to pass judgment upon him in his absence. The Lords then sent a message to the other House " that they were ready to give judgment against the • 2 St. Tr. 1112. 430 KEIGN or JAMES I. Chap. XI. Lord Viscount St. Albans if tliey, witli their Speaker, came to demand it." The Commons soon appeared at the bar, with Sir Thomas Eichardson (afterwards Chief Justice of the King's Bench) at their head, and " demanded judgment on the Lord Chancellor as the nature of his offences and demerits require." Sir James Ley, remaining covered, thus gave judgment : — " Mr. Speaker : Upon the complaint of the Commons against the Lord Viscount St. Albans, Lord Chancellor, this high Court, on his own confession, hath found him guilty of the crimes and corruptions complained of by the Commons, and of sundry other crimes and cor- ruptions of like nature : Therefore this high Court, having first summoned him to attend, and having received his excuse of not attending by reason of infirmities and sickness, which he protested was not feigned, doth nevertheless think fit to proceed to judgment : And therefore this high Court doth adjudge, 1. That the Lord Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000Z. 2, That he shall be imprisoned in the Tower during the King's pleasure. 3. That he shall be for ever incapable of holding any office, place, or employment in the state or commonwealth. 4. That he shall never sit in parliament, nor come within the verge of the Court."* Subsequently, Sir James Ley pronounced judgment on Sir ¥. Mitchell, found guilty, along with Sir Giles Mompesson, of extortion and oppression under unlawful monopolies obtained from the Crown ; and on Sir Henry Yelverton, the Attorney General, found guilty of corruption in preparing charters to pass the great seal. He had a ready eloquence, and on these occasions, where little knowledge of law was required, he appeared to advantage. * 1 Pari. Hist. 1249. AD. 1621. CHIEF JUSTICE LEY. 431 In the (lisi>uto Lotwcou tlio two llou.scs respecting the punislinunt of Edward Floyde, ho gave important assistance to the Lords in main- m. i,t or taining their exclusive right to try hy im- peachment. When the nn]ia])]iy delinrjiiont was at last brought to the bar of the House of Lords, the following dialogue was held, being begun by Lord Speaker Ley : — " What answer do you make to the uttering of the words laid to your charge ?" Floyde : " I cannot remember that these words were ever spoken by me." Ley: "You must give a positive answer whether you spoke the words ' Goodman Palsjrave and Goodwife Palsgrave.' " Floyde : " I spoke not the words in such sense as is alleged." Ley : " Did you speak the words, or words to that effect ?" Floyde : " It would be folly for me to deny them, because they have been proved." The House then agreed to the frightful sen- tence of repeated scourgings, pillorying, &c., which re- flects such indelible disgrace on the House of Lords, but for which Lev cannot be answerable, as he onlv acted ministerially in jironouncing it.* When parliament again met, he ceased to be Speaker, the woolsack being occupied by Williams, Bishop of Lincoln, the new Lord Keeper of November, the Great Seal.f The Chief Justice, on hia return to his ordinary judicial duties, found them very irksome, and he was impatient to get rid of them. In the end of the year 1024 he siicceeded. The intrigue by which he then got po.ssession of the office of Lord Tieasurer and was raised to the He becomes peerage, will probably remain for ever in ob- iVeLu^r* scurity ; but the probability is that ho paid a »"<* * ^'^^■ large sum of money, to be divided between the King • 1 Pari. Hist. 1261. f lb. 1295. 432 REIGN OF JAMES I. Chap. XI. and Buckingham. However this may be, he now joyfully threw ofif his Judge's robes; he became Lord Ley, Baron Ley, of Ley, in the county of Devon ; and, bearing the Treasurer's white wand, he took precedence of all peers, spiritual or temporal, except the Archbishop of Canterbury and the Lord Chancellor. He was at the same time admitted into the cabinet, and he continued in favour during the remainder of the reign of King James. On the accession of Charles I. he was promoted in the peerage, and took a title which afterwards became one of the most illustrious in the peerage of England, being borne by the hero of Blenheim, Kamillies, and Malplaquet. The first Earl of Marlborough, though he retained his office of Lord Treasurer for several years, mixed very little in public affairs, and was a mere puppet of the Duke of Buckingham. I cannot find the slightest trace of any speech he ever made in parliament after he was created a peer. He seems still to have had great delight in associating with his old legal friends at the Inns of Court, and we find him carrying his Treasurer's staff at a grand feast given at Serjeants' Inn by his brethren of the coif.* By and by it suited the convenience of the favourite July 15 t^^^'^ ^® should be removed from his office 1628. of Lord Treasurer! : when he was obliged He is^lfduced to exchange it for that of President of the d^entTfthe' Council, which he held till the 14th of Council. March following, when he expired, in the 78th year of his age. The cause of his death is said * Cro. Car. ix. persons alive who had all succeeded one t Lord Clarendon says, " The Earl of another immediately in that unsteady Marlborough was removed under pre- charge, without any other person inter- tence of his age and disability for the vening : the Earl of Suffolk, the Earl of work (which had been a better reason Manchester, the Earl of Middlesex, the against his promotion "). He observes, Earl of Marlborough, and the Earl of " There were at that time five noble VuitlaivV'—liehMiun, i. 74. A.D. 1628. CHIEF JUSTICE LEY. 433 to have been grief at the quarrel between Charles and the House of Commons after the passing of the rETiTioN OF Eight, -which brought on an abrupt dis- solution of the rarliament, and a resolution that the government of the country shoiild henceforth be carried on by prerogative alone. In his last moments ho was supposed to have had revealed to him the terrible times when Englishmen were to fight against Englishmen in the field, and the scaffold was to bo crimsoned with royal gore. He is said to have been fond of antiquarian learning, and he amu.scd himself with writing treatises on heraldry and other kindred subjects.* "Wood describes him as " a person of great gravity, ability, and integrity, and of the same mind in all conditions." This is flattery,— but it is curious to take a glance at one who, in an age of great men, with very slender qualifications, filled the offices of Coke and of Burleigh, and rose to higher rank than either of them. His earldom devolved successively on his two nisdcscend- sons, Henry and "William, and, on the death ^°^- of the latter, in 1G79, without issue, it became extinct.f The greatest honour ever conferred upon the house of Ley was by a sonnet addressed by Milton to the Lady Margaret, daughter of the Chief Justice. She resided in a battlemented mansion in Buckinghamshire, bosomed high in tufted trees, where she was " the cynosure of neighbouring eyes." The poet, captivated by her charms, — as yet indifferent about popular * See Heame's Cbllection of Curious Henry Lord Ley (the eldest son of James Discourses (London, 1775, 8vo.) ; Wood's E. of Marlborough) was brought into the Ath. Ox. ; Bliss, ii. 441 ; Dug. Ch. Ser. House (in his parliament robes) between 105, 106. the Lord Crumwdl and the Lord North + Henry had been called up to the (rmrtcr going before), and his Ix)rdsbip Houseof Lords in his father's lifetime, — delivered his vrit, kneeling, unto the affording the only Instance of a Chirf Lord Ke< per, which being read, he was Justice and his eon sitting together in brought to his i>lace next to the Lord that assembly. " March 2. 1623.— Hodie Deyncourt."— 3 Lords' Journals, 512. VOL. I, 2 F 434 REIGN OF JAMES I. Chap. XI. privileges — and thinking that the surest way to win her was to praise her sire, thus apostrophised her : — Milton's " Daughter to that good Earl, once President sonnet to Ley's Of England's Council and her Treasury, daughter. Who lived in both unstained with gold or fee, And left them both more in himself content, 'Till sad, the breaking of that Parliament Broke him, as that dishonest victory At Choeronea, fatal to Liberty, Kill'd with report that old man eloquent ! Though later born than to have known the days Wherein your father flourish'd, yet by you, Madam, methinks I see him living yet. So well your words his noble virtues praise, That all both judge you to relate them true. And to possess them, honoured Makgaeet !" I have very great delight in now presenting to the Sir Randoif reader a perfectly competent and thoroughly Crewe. honest Chief Justice. Considering the times in which he lived, the independent sj)irit which he displayed is beyond all praise. Since the Judges have been irremovable, they can take part against the abuses of power on very easy terms, independence and, as Lord Mansfield remarked, " their c arac er. -^gj^ip-tation is all to the side of popularity." Under the Stuarts, a judge gave an opinion against the Crown with the certainty of being dismissed from his office ; and, if he retained his virtTie, he had this peculiar merit, that he might have sacri- ficed it without becoming infamous, — for, however profligate, numerous examples would have defended him, and the world would have excused him, saying " he is not worse than his neighbours." The name of Eandolf* Crewe, therefore, ought to be transmitted with honour to the latest posterity. The more do we owe this debt of gratitude to his memory, that he was * Christian as well as surnames were, " Randolph," " Randulph." " Randulf," in those days, spelt very differently. We " Ranulpli," ' Ranulf," " Randalf," and find this name written " Randophe," " Randal." (Ill i:f justice crewk. 435 not, like Sir Edward Coke, ostentatious and blustering in the discharge of his duty. Not seeking to obtain the applause of the world, he was a quiet, modest, unambitious man, contented with tlie approbation of his own conscience. The subject of this memoir was of an ancient family, who took their name from a manor, in the jjj^f^^j, . county of Chester, which had belonged to them at least as far back as the beginning of the reign of Edward I. This possession had, for 250 years, belonged to owners of a difterent name, by the marriage of the heiress into another family, but was repur- chased by our Chief Justice, the true heir male of the Crewes. Born in the year 1588, he was the eldest son of John Crewe, of Xantwich, Esquire, a gentleman in rather reduced circumstances, but animated by a strong desire to restore the greatness of his lineage. There was one other son, Thomas ; and their father resolved to breed them to the bar, as affording the best chance of honour- ably acquiring preferment. They were both lads of excellent parts, and he used to entertain them witli stories of the greatness of their ancestors: he would point out to them the great manor of Cukwe, forming a large section of the county ; and he fired their ima- ginations with the vision of their recovering it, and again becoming " Crewes of that ilk.' In the reign of Edward III. two brothers, of the name of Stratford, successively held the ofiico of Lord Chancellor; and in recent times the two brothers Scott rose in the law to equal eminence. The two Crewes afford another instance of similar success. They were at the same school, the same college, and the same inn of court; always equally remarkable for steady application, sound judgment, and honourable conduct. They both followed exactly the same course till they were Ser- 2 F 2 436 KEIGN OF JAMES I. Chap. XI. jeants-at-law. were knighted, and -were successively Speakers of the House of Commons, — when fate varied their destiny.* Sir Thomas never having been a Chief Justice, I must confine my narrative to Sir Eandolf. We have to boast of him as one of the ornaments of A.D. 1602. Lincoln's Inn ; and in our books are the fol- He studies at lowing entries respecting him, marking: the Lincoln's ° , „, } ^ .■, ^ Inn. several stages oi his career there : — " Cestr. Eadulpliiis Crewe admiss est in societate ibm decimo tertio die Novembris anno regni Regin^ Elizabeth decimo none ad instanc Richi Wilbraham et Lawrencij Woodnett manuc — " Octo die Novembris Anno regni Elizabethe vicesimo sexto " It is orderede that theise gentlemen hereafter namede shalbe called to the utter barre, vid. Mr. Jones and Mr. Sidleye and they to be called at the nexte moote in the hall the savinge of auncientye of Mr. Jonnes and Mr. Sidleye to the utter barrestors that have not mooted. And Mr. Mollton and Mr. Crewe to be called to the barre the firste moote the nexte terme." " Lyncolnes Inne. Ad Consilium ibm tent tertio die Novenibris anno R'""" Eliz. : c* quadragessimo scdo. 1600. "Tt ys ordered that Mr. Edward Skepwyth Mr. James Leighe and Mr. Randophe Crewe shalbe called to the Benche and be published at the next pleading of the next whole Moote in the Hall." " Lincolnes Inne. Ad Consilium ibm tent nono die Maij anno r. R"»^ Dna3 Elizabethe z xliiij"' 1602. " Att this Counsell Mr. Randolphe Crewe is elected and chosen to be reader the next somer and is to have such allow- ances as the last somer reader hadd, and Mr. Gellybrand and Mr. Christopher are elected to be Stewardes of the Reader's Dynner." He made himself a deep black-letter lawyer ; and, from early training, he was particularly fond of genea- logy and heraldry. He had likewise a ready elocu- * The 8on of Sir Thomas, soon after the extinct in 1721, by the death without Restoration, was created by Charles II., issue of his two sons, who had succes- Daron Crewe of Stene in the county of sively inherited it. Northampton ; but this peerage became A.D. 1614. CIIIIOF Jl'STICE CREWK. 437 tion, and liu ctnulucted Avitli discretion and success the causes intrusted to liim. IJusiness flowed ^.^ ^^^^^^^ in upon him almost from his call to the bar ; iicraiary and and, never forgettin«; that ho might bo rein- stated in the family pf)sscssions, ho saved every broad piece that he could lay by without being mean. When, ill the hope of obtaining a supply, a parlia- ment was called in the spring of 1614, he had acquired such distinction that, without solicitation, he was returned to the House of Commons as member for his native county ; and at the opening of the session ho was elected Speaker. He " disqualified" himself in the approved fashion ; but, being " allowed " April 7. by the King, with high commendation for his elected Spea- known learning and ability, — in demanding nJu^J.^of" the privileges of the Commons he delivered Commons. a flowery address to the King, in which he contrived to allude to his Majesty's descent from Cerdic the Saxon, as well as William the Conqueror and the Scottish monarchs, whom he carried back nearly to the Flood. James, much tickled with this pedigree, again expressed his satisfaction that the Commons had made so worthy a choice ; but strictly commanded the new Speaker to prevent the introduction of improper bills into the House, or the use of improper topics in debate, and to urge the Commons with all speed to vote the supply of which he stood so much in need. Crewe had a very unhappy time of it when in the chair of the House of Commons, and conceived a dis- gust for politics which lasted as long as he lived. Instead of granting a supply, the leaders of the country party, now grown strong and bold, talked of nothing but grievances ; and a quarrel arose between the two Houses respecting a speech made by the Bishop of Lin- coln, derogatory to the dignity of the Commons. The King blamed the Speaker; but the Speaker declared 438 EEIGN OF JAMES I. Chap. XI. that lie could do iiothiBg more to further tlie King's business without trenching on those privileges which it was his duty to uphold. At the end of a few weeks, eniplo3^ed in useless altercation, the King abruptly put an end to the session by a dissolution.* The ex-Speaker now resolved to devote himself ex- clusively to his profession, and with this view July 1, 1614. ^^ ^^^^^ upon himself the degree of Serjeant- at-law.t He refused to accept a seat in the next parliament, which, meeting in Jan. 1621, distinguished itself by the punishment of Lord Bacon ; — and he does not ap- pear to have been again in any way brought before the public till Sir James Ley's resignation of the office of Chief Justice of the King's Bench when made Lord Treasurer. Two Chief Justices having presided in succession who were politicians rather than lawyers, He IS ap- •■■ -r.. 1 -iTT-TT J.1 iwinted there was a cry that " Bishop Williams, the oftheKin^s Chancellor, wished to have the common law ^™''^' judges as incompetent as himself." In defer- ence to the public voice, which even in absolute govern- ments is not to be despised, the resolution was taken to select a good lawyer for the vacancy, and every one pointed to Serjeant Eandolf Crewe as the fittest man that the profession afforded. Accordingly, on . an. 26, 1625. ^^^^ ^g^j-^ ^f January 1625, he took his seat as Chief Justice of the Court of King's Bench. There never was a more laudable appointment, and he even exceeded the sanguine expectations that had been entertained of his fitness. To learning hardly inferior to that of Coke, and to equal independence of mind, he added — what Coke wanted so much — patience in hearing, evenness of temper, and kindness of heart. * 1 Pari, Hist. 1149-1169. f Dug. Chr. Ser. 105. A.D. 1626. CIIIKF .TrSTK r, fllEWK. 439 On the demise of the CroAvn, lie was iminecliately reappointed to his office, and he continued to till it Avitli increasin<;' reputation till the unfortunate Charles liciian that course of illegal ami unconstitutional mea- sures which ended so tragically. " Cro. J.\c.," " Cuo. C.\R.," and the other Eeports of that time, swarm with decisions of Lord Chief Justice Crewe ; but they have almo.st all hecome ol )solete, with the laws on which they were founded. There is one of his recorded judgments, however, which, as a true specimen of English eloquence in the 17th century, will continiie to be read and recited as long as we are a nation. A contest arose in the year 1620, in consequence of the death of Henry do Yere, Earl of Oxford, ^ ^ j^^e respecting the right to that earldom, between His famous Eobert de Vere, claiming as heir male of the oxford Peer- family, and Lord "Willoughby de Eresby, "seCas^- claiming through a female, as heir general to the last earl. The case was referred by Charles I. to the House of Peers, who called the Judges to their assistance. The opinion of these venerable sages was delivered in the following terms by Lord Chief Justice Crewe : — " This s;i'cat and weighty cause, incomparable to any other of the sort that hath happened at any time, requires much deUbera- tion and solid and mature judgment to determine it. Here is represented to your Lordships certamen lionoris, illustrious honour. I heard a great jieer of this realm and a learned say \vhen he lived, ' there is no King in Christendom hath such a subject as Oxford.' And ■well might this he said, for Dk Vere came in with the Conqueror, being then Earl of Guynes ; shortly after the Conquest, he was made Great Chamlif rlain by Henry I. the Conqueror's son, abuve 500 years ago. By ^laiul the Em- ])ress, he was created Earl of Oxford, the grant being Albebico CoMiTi, so that he was clearly an Earl before. He Avas confirmed and approved by Henry Fitz-Enijiress, Henry II. This great honour, this high and noble dignity, hath continued ever since in the remarkable surname of De Yere, by so many agcF, descents, and generations, as no other kingdom can produce such 440 REIGN OF CHAELES I. Chap. XL a peer in one and the self-same name and title. I find in all this time but two attainders of this noble family, and those in stormy times, when the government was unsettled and the kingdom in competition. _ " I have laboured to make a covenant with myself, that affec- tion may not press upon judgment ; for I suppose there is no man that hath any apprehension of gentry or nobleness, but his affecti(jn stands to the continuance of a house so illustrious, and would take hold of a twig or twine thread to uphold it. And yet time hath his revolutions ; there must be a jjeriod and an end to all temporal things— Jinis rerum—nn end of names and dignities, and whatsoever is terrene ; — and why not of De Verb ? — for where is Bohun ? Where is Mowbray ? Where is Mortimer? Nay, which is more, and most of all, where is PLANTAGENET ? They are entombed in the urns and sepul- chres of mortality ! Yet let the name of De Vere stand so long as it pleaseth God." He tlien went on to show, that al though the earldom was at first held in fee-simple by the family of De Vere, so that it might descend to a female, nevertheless it was entailed on Aubrey de Vere " and Ms heirs male " by the parliament of 16 Richard II., so that the right had descended to Bohert de Vere as his heir male, and the De Veres as long as the line continued must be Earls of Oxford. The Lords were guided by this opinion,* but the successful claimant died without an heir male ; and De Vere, along with Bohun, Mowbray, Mortimer, and PLANTAGENET, was " entombed in the urns and sepulchres of mortality." f Before Sir Eandolf Crewe had completed the second Heisdis- y^^^ °^ ^^^ Chief Justiceship, although rever- hishoMst enced by the people, he was found wholly unfit for the system of government which had been determined upon by the King and his ministers. After the abrupt dissolution of Charles's second parliament without the grant of a supply, all redress of grievances being refused,— the plan was de- * Cruise on Dignities, p. loi. Anne in favour of Harley, descended t The title -ivas renewed by Queen from the De Veees through a female. A.D. 1626. CHIEF JUSTICE CREWE. 441 liborately formed ul" di.-^continuing entirely the U80 of popular assemblies in England, and of ruling merely by prerogative. For this purpose it was indispen.sably necessary that the King should have the power of im- posing taxes, and the power of arbitrary imprison- ment. He began to exercise both these powers by as- sessing 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 gaol those who resisted the demand. But these measures could not be rendered effectual with- out 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, miglit, by suing out a Avrit 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 i;pon 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-kno"m[i fashion which prevailed in those times, the Attorney General, by order of the Go- vernment, sounded Sir liandolf Crewe 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 im- prison any of his subjects without a warrant specifying the offence with which they are charged. This being reported to the Cabinet, Sir Randolf Crewe • T 1 T • 1 r T • m Nov. 10. was immediately dismissed trom las omce; and, in a few weeks after, Sir Isicholas Hyde, who was 442 REIGN OF CHAELES I. Chap. XI. expected to "be more compliant, was made Chief Justice in his stead. When he gave his answer to the Attorney General, he was not ignorant of the punishment which he must incur, and he bore it with perfect equanimity, — re- joicing that he had done his duty, and that he was delivered from temptation. It has often heen said that he was removed for op- posing ship-money ; but this ingenious tax had not then been devised, and, indeed, Noy, its author, was still a patriot, and one of the counsel for those who denied the legality of the present imposition. There having been no proceeding in court in which he had expressed any opinion against the prerogative, and his private conference with the Attorney General being then unknown, his dismissal seems to have caused great astonishment. Croke, the reporter, thus notices it : — " Mem. Upon Friday, the 10th of November, Sir Randolf Crewe, Chief Justice of the King's 13ench, was discharged of that place, by writ under the great seal, for some cause of displeasure conceived against him ; but for what was not generally known." * Fuller, writing when the trxith had been partly dis- closed, says, in his quaint style : — " King Charles' occasions calling for speedy supplies of money, some great ones adjudged it unsafe to venture on a parliament, for fear, in those distempered times, the physic would side with the disease, and put the King to furnish his necessities by way of loan. Sir Eandal, being demanded his judgment of the design, and the consequences thereof (the imprisoning of recusants to pay it), openly manifested his dislike of such preter-legal courses, and thereupon, Nov. 9 a.d. 1626, was commanded to i'orbear his sitting in the court, and the next day was by writ discharged from his office ; whereat he discovered no more discon- tentment than the weary travailer is offended when told that he is arrived at his journey's end." * Cro. Car. p. 52. A.n. 1629. CHIEF JUSTICE CKEWK. 443 Ho had it ill his power to be returned member fur liis native county, in the parliament which met soon after, and the ojiposition might have been led by two ex-Chiff Justices of the Kino's I'ench ; but lu; had neither tlie vigour nor the thirst for vengeance which animated Sir Edward Coke, and he preferred the repose of private life, — not being without hope of being restored to his judicial functions. At tlie end of two years he wrote the following letter to Buckinghiiin, which is, I think, most creditable to him ; for, notwithstanding his earnest desire to be re- placed on the bench, he makes no concession or promise at all inconsistent with his pi'inciples : — " ^ly duty most humbly done to your grace, vouchsafe, I beseech your grace, to read the misfortune of a poor man herein, and take them into your noble thoughts, H" ittter t<. whose case is considerable. I have lived almost two af"cr'^{j"f "*" years under the burden of his Majesty's heavy dis- removui. pleasure, deprived of the place I held, and laid aside as a person not thought of, and unserviceable, wlicreof I have been soe sensible, that ever since living at my house att Westmin- ster, I liave not sett my foot into any other house there or at London (saveing the house of God), but have Uved private and retired as it best became me. "I did decline to be of this late Parliament, distrusting I might have been called upon to have discovered in the public, the passages concerning my removal from my place which I was willing should be lapped up in my own busome. " I likewise took special care if my name were touchit upon in the Comons house, that some of my friends there should doe their best to divert any further speech of me, for I ahvaies resolved wholly to relie upon the King's goodness, wlio I did not doubt would take me into his jnincely thoughts, if your grace vouchsafed to intercede for me. The end of the Parliament was the time when I prefixed myself to be a suitor to your grace, and I have now encouragement soe to be : the petition of right where- unto your grace was a party speaks lor me, and for the right of my place, but I humbly desire favour. God doth knowe, it was a great affliction to me to deny anything commanded me, the King that my heart soe loved, and to whom I been soe bound, jnince and King : but had I done it, I had done contrary to that 444 REIGN OF CHARLES I. Chap. XI. which all his judges resolved to doe (and I only suffer), and if I had done it and they had deserted me therein, 1 had become a scorne to men, and had been fitt to have lived like a scritch owl in the darke ; so likewise if 1 had done it and had been knowne to have been the leader herein, and the rest of the judges had been pressed to have done the like, the blame and the reproof would have been laid on me, and by me they might in some measure have excused themselves. But yet there was a greater obligation to restrain me than these (for these be but morall reasons), and that was the obligation of an oath, and of a conscience, against both which (then holding the place of a judge), I in my own understanding had done, had I subscribed my name to the writing which the King was then advised to require me to doe, for therein I had approved the commission, and conse- quently the proceedings thereupon, Avherein here I had been con- demned, and with how loud and shrill a voice, I leave to your grace to judge. Wherefore, most noble Lord, vouchsafe to weigh these my reasons in the ballance of your wisdom and judgement, and be soe noble and just as to excuse me to the King herein, and in a true contemplation of that noblenesse and justice, be soe good as to be the means, that I may be really restored to the King's grace and favour. Your grace has in your hands Achilles' speare which hurts and heales. I am grievously hurt, your grace hath the means to heale me to whom I make my address. The time is now fitt for me : now you are upon a forraigne expe- dition, you take my prayers, my wife's, and my children's with you, and I hope your journey will be the more prosperous. " 1 am now in the seventieth year of my age ; it is the general period of man's life, and my glass runs on apace. Well was it with me when 1 was King's Serjeant, I found profitt by it : I have lost the title and place of Chiefe Justice. I am now neither the one or other ; the latter makes me uncapable of the former, and since I left the Chiefe's place, my losse has been little less than 3000^. already. " I was by j'our favour in the way to have raised and renewed in some measure my poore name and familey, which I will be bold to say hath heretofore been in the best ranke of the famileys of mj' countrey, till by a general heir the patrimony was carried from the male line into another sirname, and since which time it hath been in a weak condition. Your grace may be the means to repair the breach made in my poor fortune, if God soe please to move you, and you will lose no honour by it. Howsoever I have made my suit to your noblenesse, and your conscience, for I appeal to both, and whatsoever my success be, I shall still appear to be a silent and patient man, and humbly submitt A.I). 1629. CHIEF JUSTICE CREWE. 445 myself to the will of C!od and Ibc King. God be with your jrrace, He guide and direct you, and to his holy protection I committ you, resting ever " A most humble servant to your gi-acc, " Kanduli'h Crewe. " Westminster, 28th Junii." On a copy of this letter, preserved among the family papers at Crewe, there is the following memorandum in the handwriting of the Chief Justice :— " A little hcforo the I), going to the Isle of Eee, he told Sir Kandal, in the presence of Lord Treasurer Weston and Sir Robt. Pye, that he would at his return right him in the King's ftivour, for it was he that had injured him, and there- fore was bound in honour to do it." However friendly the Duke's intentions might have been, the arm of Felton, within a month from the time when this remon- strance was delivered to him, for ever prevented him from carrying them into execution. The ex-Chief Justice then renounced all thoughts of public employment, and spent the rest of his _. long life rationally and happily in rural life in retire- amusements, in literary pur.suits, and in social enjoyments. It happened soon after that the manor of Crewe was in the market for sale. Either of the two brothers had the means of purchasing it ; but the pre- ference was given to Sir Eandolf, the elder ; and he was more gratified, when he took possession of it and became " Crewe of that ilk," than if he had been installed as Chancellor in the marble chair, — saying, " How de- lighted my poor dear father would be if he could look down and see his fond wish accomplished !" Here he built a magnificent new manor-house, which was ad- mired and copied by the men of Cheshire. Fuller says, " He first brought the model of excellent building into these remote parts ; yea, brought London into Cheshire, '^ 446 KEIGN OP CHARLES I. Chap. XI. in tlie loftiness, sightliness, and pleasantness of their structures." He lived on till the Long Parliament had sat several years, and he might actually have been pre- Jaii\^"' ^^^* ^^ the House of Commons in 1641, when Mr, Hollis, inveighing against the corrupt Judges who had decided in favour of ship-money, drew this contrast between them and a Judge who had acted well :— " What honour is he worthy of, who, merely for the public good, hath suffered himself to be divested and ^ane^^yric deprived of what he highly values ? — such a judge upon him in as would lose his place, rather than to do that which the Long j^jg conscience told him was prejudicial to the com- ar lament. jj^onwealth ? — and this did that worthy reverend judge, the Chief Justice of England, Sir Eandulf Crewe. Be- cause he would not, by subscribing, countenance the loan in the first year of the King, contrary to his oath and conscience, he drew upon himself the displeasure of some great persons about his Majesty, who put on that project which was aftei'wards condemned by the Petition of Right as unjust and unlawful ; and by that means he lost his place of Chief Justice of the King's Bench ; and hath, these fourteen years, by keeping his innocency, lost the profit of that office which, upon a just calcu- lation in so long a revolution of time, amounts to 26,000/. or thereabout. He kept his innocency when others let theirs go ; when himself and the commonwealth were alike deserted ; which raises his merit to a higher pitch. For to be honest when every- body else is honest, when honesty is in fashion and is iru7np, as I may say, is nothing so meritorious ; but to stand alone in the breach — to own honesty when others dare not do it, cannot be sufficiently applauded, nor sufficiently rewarded. And that did this good old man do ; in a time of general desertion, he preserved himself pure and untainted. ' Temporibusque malis ausus est esse bonus.' " * Hollis afterwards succeeded in carrying an address to the King, praying " that his Majesty would ^ ' bestow such an honour on his former Judge, Sir Eandolf Crewe, Knt., late Lord Chief Justice of * 3 St. Tr. 1298. 7046. CHIEF JUSTICE CREWE. 447 England, us inuy bu a tioIjIc mark of sovereign grace and favour, to remain to liim and his posterity, anil may be in some measure a proportionable compensation for the great loss whidi he hath, with so much patience and resolution, .sustained." Nothing was done for him Ijefore the civil war Ijroke out ; but he had that highest reward, the good opinion of his fellow citi- _ ' o 1 _ The rp?poct zens. He seems to have enjoyed the sym- entcnaincd pathy and respect of all honest men from the time of his dismis.sal from otKce. Fuller says quaintly, " The country hatli constantly a smile for him for whom the court hath a frown. This knight was out of office, not out of honour, — living long after at his hoTi.se in Westminster, much praised for his hospitality." lie adds, *• I saw this worthy Judge in 16-12, but he survived not long after." * His last days were disturbed by the clash of arms. The struggle between the parties which, in 1 • n ? n • 1 • o* c* t, ' "is death- nis youth, Juul been earned on m bt. .Stephen s Chapel, and in AVestminster Hall, was now transferred to Edgehill and Marston Moor. We are not informed to which side he inclined, but the probability is, that, being a steady friend of constitutional monarchy, he dreaded the tritimph of either, and that, like the vir- tuous Falkland, he exclaimed with a sigh, Peace I Peack! He languished till the 13th of January, 164G, when he expired in the eighty-seventh year of his age, — leaving Cromwell to wield the sceptre which he had seen in the hand of Queen Elizabeth. He was buried in the family cemetery at Crewe. All lawyers are familiar with his singularly shrewd physiognomy, from an admirable print of him in Dugdale's Oiugines JuniDICIALES, His male descendants remained " Crewes of that illc " • Worthies, vol. ii. f (■■■• 448 EEIGN OF CHARLES I. Cha. for several generations. The estate then came to an His descend- l^eiress, who married John Offley, Esq., of ants. Madely, in the county of Stafford. Their I'L-b. 25, 1806. ^ .'' son, on succeeding to it, took, by act of parlia- ment, the name and arms of Crewe. His grandson was raised to the peerage by King George III., being created Baron Crewe, of Crewe, in the county of Chester ; and the Chief Justice is represented by Eichard, the third Lord Crewe. END OF VOL. 1. LONDON : FEINTED BY WILMAJt CLOWES AND SONS, STAMFORD STREET AND CHAELNG CEOSS. f^ ir^ THE LIBRARY UNIVERSITY OF CALIFORNIA Santa Barbara !^/'^STACK COLLECTION THIS BOOK IS DUE ON THE LAST DATE lOW. — ^ 10m-6,'62(C9724s4)476D 3 1205 00271 4382 AA 000 327 562 5 vm :Uii^ »,i»!i>,t«;Vii>;.^vi' i< -t'-iL' ■iL-lYli'il ^!Z^^- ^iv.\mr^\ -mn^^n:'! v.. . \ >N':*-:i':^':.':»':.s.^:»'yi^