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Les cartes, planches, tableaux, etc., peuvent dtre filmte A des taux de reduction diff^rents. Lorsque le document est trop grand pour Atre reproduit en un seul ciichA, 11 est f iimA A partir de I'angle supArieur gauche, de gauche A droite, et de haut en baa, an prenant la nombre d'imagaa nAceaaaire. Lea diagrammes suivants iliustrant la mAthoda. 1 2 3 4 5 6 V LIVES OF THE CHIEFJUSTICES OF ENGLAND. ^f.-i.^-^ri-Ai\*i-U. A V I , THE STAR CHAMBER. \\ ■\'l t . • . ; ;: s n\i ( ']\i.\ intjcks UK KjNGI .\n d " THE LIVK.S '.I IMi- i ' '•■<>> ■ H ■. ^':^1. i .K . ui' l-.N(/l.ANli ■rCRONK) ■v^f :-* r ,^ js isKi- you sale, ry M. «* ;Vl,?feLAfDE 'STREET, EAST I S 7 6 I • ' t . " ■ • ^•. ■ - -. ilk v^- ■-^■;'=^-'*> ^JPP^I i\\\! 'ijirs^' H I !■'»»» , ' ■,t»V THE LIVES OF THE CHIEF JUSTICES or ENGLAND BY LORD CAMPBELL AUTHOK or "THE LIVES OK TlIK I.ORI) CIlANCKI.I.ciKS OK K.NGLAND IN FOUR VOLUMES VOL. L TORONTO IMPORTED AND FOR SALE BY R. CARSWELL 26 & 28 x\DELATDE STREET, EAST 1876 ro Till*: IIONOUAULE DUDLI'Y CAAiriM'LL, My i)i:.\r Dudi.kv, As you have cliosoii the noble though arduous pro- fession of tlie Law, I dedicate to you the LiVKS OF TlIK CllIKl' JusriCKS, in the hope that they may stinvuUite in \-our bosom a laudable ambition to excel, and that they may teach you industry, ener[^y, perseverance, and self-denial. Learn that, by the exercise of these virtues, there is no eminence to whicli you may not aspire, — and, from llie exam[)lcs here set before you, ever bear in mintl lh;it truly enviable reputation is only to be ac- qircd b} independence of character, by political con- sistency, and by spotless [)urity both in public and pri- vate life. I cannot hope to see you enjoying hiijh professional distinction ; but, when I am gone, you may rescue my name from oblivion, and, if I should be forgotten by ail the world besides, yon will tenderly remember Your ever affectionate Father. CAMPBELL. 183150 PREFACE. Mr original design was to be 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 Coke and Lord Hale — had uot the offer of it, from the preference nat- urally given to mediocrity; and others — as Lord Holt and Lord Mansfield — resolutely refused the offer, because they preferred the functions of a Common Law Judge. I siiould not, therefore, have contributed my proposed share of honor to the deceased, or of instruction to the rising generation, without adding the Lives of the Chief Jus- tices. 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 ad- dicted myself. I may not be altogether unqualified for the task, as I have been long familiar 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 Chancel- • • • rill PREFACE. ! I \ l.ORS, although sumctimcs insignificant as individuals, 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 of their ofiicial duties, were known only to have decided sucli questions as "whether beasts of the plow taken in vetito nainio may be replevied? " So many of them as I could not reasonably hope to make entertaining or edifying, I liave 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 ex- cited 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 favored 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 Ryder. But my special thanks arc due to my friend Lord Murray, Judge of the Supreme Court in Scotland, for the valuable materials with which he has supplied me for the Life of his illustrious kinsman, Lord Mansfield, hitherto so strangely neglected or misrep- resented. • This has been from great antiquity the decoration of the Chief Justices. Dugdale says it is derived from the name of Saint Simplicius, a Christian Judge, who suffered martyrdom under the Em])cror Dioclesian : " Geminst ▼ero S S indicabant Sancti Simpiicii nomen. ' — (Or. Jur. xxxv.) ^ ^ y PREFACE. IX In taking fare-.vpl' ilic I>iil>lic, I l,og pcrn.issiori to return iny Pincerc tlianks for > kindness J luivc experienced both fro,,, friends and stranger, who have pointed out n.istakcs and sup- l)hed deficiencies in my biograpliicul works,— and earnestly to ftolicit a continuance of similar favors. Strathcden House, Aug. 10, 1849. LIST OF ILLUSTRATIONS. The Star Chambbr (Frontispiece.) Map showino Chancery Lank, the TEMPtE, Ac., . . i Old Westminster Hall, \-j The Temple is 1671, 3j The TEMrLE Stairs, i6i Old Hall ok the Inner Tkmilk, 193 Lord Coke, ... 245 Lincoln's Inn aboit 1720, jax CONTENTS OK THE FIRST VOLUME. C II A r T E U I . L1VE5 OK THE CHIEF JUSTICES FROM TUB CONyUKST TO TH» REIGN OF EDWARD I. Origin and Functions of the OlTice of Chief Justiciar, or Chief Justice, of England, Page I. Ouo, the first Chief Justiciar, 4. His birth, 4, lie accompanies William the Con(iueror in the Invasion of Englai.d, 4. He is appointed Chief Justiciar, 5. Cause tried before him, 6. His quarrel with the King, 7. He is liberated from Imprisonment, S. He conspires against William Rufus, q. He is banished from England, 10. His Death, 10. William Fitz-Osuorne; Chief Justiciar, 11, William ue War- kknne: and Rickari) of. Benkkacta Chief Justiciars. 12. William dr Carilkko Chief Justiciar, 14. Fi.amharo Chief Justiciar, 15. First Sittings in Westminster Hall, 15. Rookr, Uisiiop ok Sai.isiu'ry Chief Justiciar, 16. Rali'H Hasskt Chief Justiciar, 16. Princk IIknry (af- terwards Henry II.) Chief Justici.ir, 17. Richard dk Lt'Ci Chief Jus- ticiar, 17. Robert Earl ok Leicester, Chief Justiciar, iS. Ranulfus OE Glanville, iq. His Birth, ig. He is Sheriff of Yorkshire, 19. He takes William the Lion, King of Scots, Prisoner, 21. How the New* was received by Henry II., 22. Glanville made Chief Justiciar, 23, Glanville as a Law Writer, 25. Preface to Glanville's Hook, 25. Mode of Trial by Grand Assize or by Battle, 27. Glanville's Conduct to the Welsh, 30. Glanville's Prohibition in the Suit between Henry II. and the Monks of Canterbury, 31. A new Crusade, 33. Glanville takes the Cross, 33. Glanville is killed at the Siege of Acre, 35. Hugh Pusar, Cisnof OF Durham, Chief Justiciar, 36. His licentious youth, 36. His meritorious middle age, 37. His seven years of Blindness, 37. His Death, 38. William LoNociiAMr, 38. Walter IIuuert, Archhjshop OF Cantei'Iii;rv, Chief Justiciar, 38. Case of WilUam-with-the-Lonu- Beard, 39. Hubert deposed from the Just iciar^liip, 41. Gkokkkey Fnx ..-fi It? CONTENTS. I'lTKR Chief Justiciar, 43. Trial of the Case of FauconbriJg« v. Fan- conbridge, 43. Peter de Rupinus, 44. Peter de Kupibus in favor with Henry III,, 45. He takes the Cross, 46. He gains a Battle for the Pope, 47. His Death, 47. Hubert i)R Biiroh, 47. Hubert de Burgh under Richard I., 48. His Character by Shakspeare, 48. Hubert de Burgh appointed Chief Justiciar for life, 49. Hubert removed from his oflfice of Chief Justiciar, and takes to Sanctuary, 53. He is confined in the Tower of London, 53. Death of Hubert de Burgh, 54. Stephen DE Segravk, 56. Obscure Chief Justiciars, 56. Hugh Bigod Cliief Justiciar, 56. Hugh i.e Drspencek Chief Justiciar, 58. Death of llu^h le Despencer, 60. Phimp Basset Chief Justiciar, 60. His Death, 61. Whether Simon de Montfort was ever Chief Justiciar ? 62. Hksky dk Bracton Chief Justiciar, 63. Bracton's Book, " De Legibus ct Consiic- tudinibus Anglia'," 64. First Chief Justice who acted merely as a Jud^^e, 65. Lord Chief Justice Bruce, 65. Origin of the Bruccs, 66. Scotiisl* Branch of the Bruces, 66. Birth of the Chief Justice, 67. He is edu- cated in England, 67. He is a Puisne Judge, 67. He is taken Prisoner in the Battle of Lewes, 63. He is made Cliief Justice, 68. He loses tlie Oflfice on the Death of Henry HL, 63. He returns to Scotland, 63. lie is a Commissioner for negotiating tlie Marriage of the Maid of Nor\vay with the Son of Edward L, 69. On her death he claims the Crown of Scotland, 69. He acknowledges Edward L as Lord Paramount of Scotland, 70. Decided against him, 70. His Death, 70. His Descend* ants, 70. CHAPTER II, LIVES OF THE CHIEF JUSTICES FROM TIIK ACCESSION OF EDWARD I. TO THE APPOINTMENT OF CHIEF JUSTICE TRESILIAN. Judicial Institutions of Edward I., 71. Kai.imi ok Hknuham Chief Jus- tice of the Court of King's Bench, 73. His Origin, 73. His Progress in the Law, 73. Law Books composed by him, 73. He is appointed Guar- dian of the Kingdom, 75. He is charged with Biihcry, 76. Convictions of the Judges, 76. De Ilengliam is fined 7000 Marks, 76. Opinions respect- ing him in after-times, 77. He is restored to public Employment, 77. His Death, 77. De \Vf.ylani> Chief Justice of the Common Pleas, 78. I lis Conduct, 78. He absconds in Disgrace, 78. His Punishment and Infamy in after-times, 78. De Thornton Chief Justice of King's Bench, 79. Roger le Brabacon, 79. He is employed by Edward \. in the Dispute about the Crown of Scotland, 80. His Address to the Scottish Parlia- ment, 81. He assists in subjecting Scotland to English Jurisdiction, 84. He is made Chief Justice of the King's Bench, 84. His Speech at the Opening of the English Parliament, 84. His De.uh. 85. Sir William Howard, qu. whether a Chief Justice? 85. Henkv i.k .Sckoi'E, 86. Sum- '% ■^ CONTENTS. XV noned to the House of Lords, 86. Chief Justice of the King's Bench, 87. Henry i>k Siaunton Chief Justice of the King's Bench, 87. Bal- lad on Chief Justice Staunton, 89. SiR ROBERT Parnync, 90. SiR William pk Tiionrr., 90. His professional Progress, 90. He is made Chief Justice of the Court of King's Bench, 90. His Addresses to the two Houses of Parliament, 90. He is charged with Bribery, 92. He is found guilty : qu. whether he was sentenced to death? 93. Sir William Shareshall Chief Justice of the King's Bench, 93. His Address to both Houses of Parliament, 93. Sir Henry Green, 95. Sir John Knvvet, 95. Sir John de Cavendish, 95. His Origin, 95. He is made Chief Justice of the King's Bench, 96. He is put to death in Wat Tyler's Rebellion, 96. I lis Descendants, 97. CHAPTER III. CHIEF JUSTICES TILL THE DEATH OF SIR WILLIAM GASCOIGNE. Sir Robert Tresilian, 9S. He is made a Puisne Judge of the Common Pleas, 98. Chief Justice of the King's Bench, 99. His Flan to enable Richard H. to triumph over the Batons, xoo. The Opinion of the Judges on the Privileges of Parliament, loo. Measures prompted by Tresilian against the Barons, 102. The Barons gain the Ascendancy, 104. Tre- silian prosecuted for High Treason, 104. He absconds, 104. Proceed- ings in Parliament, 105. Tresilian attainted, 105. He comes to West- minster in Disguise, 106. He is discovered, apprehended, and executed, 111. His Ch.iracter, in. Sir Rohert Belknaite, III. His Family, 112. He is made Chief Justice of the Common Picas, 112. The Man- ner in which he w.as coerced into the giving of an illegal Opinion, 113. He is arrested and convicted of High Treason, 113. Judges attainted of High Treason, 114. Tiie Sentence commuted for Transportation to Ireland, 116. He is allowed to return to Kngl.and, 116. His Death, 116. Sir. William Thirnynoe, 117. Chief Justice of the Common Pleas, 117. Justification of the part he took in the Deposition of Rich- ard n., 118. He is appointed to carry to Richard II. the Renunciation of the Allegiance of the Nation, 119. The account of the Manner in which he executed this Commission, 119. He acts as Chief Justice under Henry IV., 123. His Death, 124. Sir William Gascoigne, 124. His Origin and Education, 125. His Success at the Bar, 125. He is appointed Attorney to represent Bolingbrokc, afterwards Henry III., 125. His Pro- ceedings in this capacity on the Death of John of Gaunt, 126. He is ap- pointed Chief Justice of the King's Bench, 127. His Refusal to try * Prelate and a Peer, 128. Story of his committing the Prince of Wale« to Prison ; qu. whether it be authentic? 129. When and where first men tioncd, 130. Story a-; rcl.itcc! by Sir Thomas Elyot, 130. Represented Ill I iili'i ! XVI CONTENTS. «m tlic Stnjjc, 13J. How tlie Story is treated by Sli;i!.si)care. ij.|. Rrf. utalion iif the Claims of other Jml^os, 13ft. Mciit of Sir \V. Ciascniune in this Transaction, 137. Sir William Gascoigiie's Law Reforms, 13S Curious Case in wliich he acted as an Arbitrator, 139. Ktfutation of the Assertion that he died in the Reign of Henry IV., 139. His Will, I40, His Tond) and K|iita{)h, 141. C H A r T E R IV. CHIEF JUSTICIiS TILL TUB APPOINTMENT OF CHIEF JUSTICE FITZ- JAMES HV KIN(; IIKNRV VIII. Sir Wit.MAM Hanki'ORD, 143. His Ini^enious Suicide, 144. His Monu- ment and lipilaiih, 144. Obscure Chief Justices j)asscd over, 144. Slii JollX I'oKTKSClK, I 45. SlU JdllN ISlAtiKllAM, 145. His Professional I'lo^iess, 146. He is a l'ui>nc Jud^je, 146. Itc i. appointeil Chief Jun- liie of t!ie King's IJench, 146. His Conduct un the Trial of Sir Thomas Cooke, 147. He is dismisseil from hi> Onice, 143. His Death, 14S. His C:ii.ir.actcr, 148. Sir Tiid.mas Hilmm;, 149. His obscure Origin, 14^). He starts as a Lancastrian, 150. He is m.ide King's Seigeant, 150. He goes over to the Voikisl.>, 151. He i.-> made a I'lusnc Judge, 151. Trials f'.^r Treason before him, 151. He i» made Chief Justice of tlie King's J'.i'ni;h, 153. Trial of Rex v. lUudet, 153. liilling again a Lancastrian, 155. Hilling again n Yorkist, 156. His Conduct on the Trial of the 1».i'm; of Cl.irencc, 137. His Death, 158. Siu John HtissKY, 159. His legal Studies, 159. He is made Attorney (General, 159. He is made Chief Justite of the King's Ilench, 150. His Submission to Richard HL, 160. lie I-; continued in his office by Ihnry VIL, I fir. His Death, 162. Sir John Fi.nf:l'X, 163. Tripartite I)ivision of His Life, 163. C H A TT E R V. .'JIIIEF JUSTICES TILL THE APPOINTMKNT OK CHIEF JUSTICE POl'- IIAM HY yUEEN KI.l/.AHETH. Sir JiiHN P'lTZjAMKS, \t.\. His early intimacy with Cardin.al Wolsey, i<)\. lie is made Attorney (General, 165. He conducts the Trosecution against the Duke of Buckingham, 165. He is made a Puisne Judge, 165, Chief Justice of the King's ISench, 165. His liase Conduct on the F.all of Wolsey, if)6. Fit/james assists in drawing uj) the Articles of Accusation against Wolsey, 167. Eitzjames condemns to death Protestants and Catholics, 169. Trial of Bishop Fisher, i6q. Trial of Sir Thomas More, 171. Trial of Anne lioleyn and her sujiposed Gallants, 172. Death of Fitzjamcs, 173. Sir Edwaud Moniaci:, 174. His Family, I74« His professional Progress, 174. Heisieturned to the House of "Commons: how a Leader of Oppoailiun was dealt with by Henry VIIL, COiVTEyrS. xvii JUSTICE FITZ. 'STICE POP- 175. Cirnnd Feast when Montagu was called Sergeant, 175. lie U made Chief Justice.' of the King's l!em.h, 176. Pleasures and Discomforts ex- perienced t)y liim, 176. llives an Opinion on tlie Invalidity uf the King's Marria;;e with Aiine of Cleves, 177. His Opinion on the Proofs against fnUierinc Howard, 177. I'o exchant^es his Office for the Cliief Justice- ship of tlio Common l'kM>, 17S. His Cimduct on the Trial of the Duke of N'mfollv, 179. He is employed to make the Will of Edward VI. ir favor of I.ady Jane Grey, iSi. He loses his OITiee on the Accession of (^)ueen Mary, 1S2. Hi:. IKalh, 1S2. The l-'ive 01 )scu re Justices of the King's Ilench, 1S2. Siu JAMKS Dyicr, Lord Chief Justice of the Com- mon Picas, 183. Latin Verses in his Praise, 1S3. His Origin and Edu- cation, 1S3. lli> f;;rly (Jenius for Keporling, 184. His Merits as a Uc- porter, 1S4. He is Speaker of the House of Commons, 1S5. He is made (Queen's Sergeant. 1S5. lie conducts the Prosecution against Sir Nicholas Throckmoiioii, iSd. He is made a Puisne Judge, i83. Chief Justice of Common Pleas, iSS. His Reports, 189. Case on the Marriage of Minors, 190, Case on liie IJcneiit of Clergy, 191. Cases on the Law of Villein- age, 19I. Conduct on the Trial of the Duke of Norfolk, 194. Charge against him for arbitrary Conduct as Judge of Assize, 195. His Death, 196. Puldication of Reports, 197. Sad Fate of the Last of his House, 19S. Sir RoiiKKT Cati.ynk Chief Justice of the King's nench, 19S. His Descent from Cataline the Conspirator, 198. Feast when he was called S( rgeant, 199. He is made a Puisne Judge, 200. Chief Justice, 2tK). He assists at the Trial of the Duke of Norfolk, 201. Qu. whether the fact of a Wilnos'-. being a Scot renders liim incompetent, or only goes to his credit? 201. Cliief Justice Catlyne jiasses Sentence on Iliekford, 203. His Deaili and Rurial, 205. His Descendants, 205, SiK ClIRIS- TuPitru Wkav, 205. His Doubtful Parentage, 2of). He is a Sergeaiit- at-Law, 206. He is Speaker of the House of Commons, 206. He ii made Chief Justice of the King's Ilench, 208. He tries Campion tht Jesuit, 208. Trial of William Parry for Treason. 210. Wray presides in the Star Chamber on the Tiial of Secretary Davison, 2ir. Trial of the Earl of Arundel, 213. Death of Chief Justice Wray, 213. HU Character, 213. CHAPTER VI '♦i CHIEF JUSTICES FROM THE DEATH OF SIR CHRISTOPHER WRAY TILL THE APPOINTMENT OF SIR EDWARD COKE BV JAMES L Sir John PoFiiAM, 214. His Birth, 214. At Oxford, 215. His rrofligac7 when a Student in the Temple, 215. He takes to the Koad. 215. He reforms, 216, lis professional Progress, 217. He is made Solicitor General, and Speaker of the House of Commons, 2i3. His Address to the Queen at the end of the Session, 2ig. He becomes \tlornev Cien- cral, 219. I'loieuliii.: in liic Star Chainbei on the Deatr. of the Earl oi H xviii cox7'i:xrs. Noithumberl.intl, 35o. Tilney'n Case, aai. I?e pronccutM Secrrlary Davison for semliii;; off the Warrant for the Kxeculion of Queen Mory. aaa. Popliani !■> iiinilu Chief Justice of the King's Uench, 334. Hi* gallant Conduct in Kssex's Rcl-cliion, 335. Ilssox's 'rriai, 335. Trial of Ksnex's Arcom]i!ict», 336. Sir Walter Ka!cij;ll tricham, 333. Legend respeclinu the Manner in which he ai- quired the Manor of Littiecotc, 336. His Ke|iorts, 335. His Fortune, 235. Sir Thomas Ki.kmim;, the Rival of liacon, 336. llis Laborious- ness, 336, lie is made Solicitor Ciuneral in preference to Lord llacoii, 336. He breaks down in the House of Coninions. 33S. lie refuses to resign the Office of Solicitor General in favor of liacon, 131;. He is made Chief Uaron of the Lxchcqucr by James L, I3(j. "The Great Case of Im])osition," 339. Fleming appointed Chief Justice of the King's Bench, 343. His Judgment in the Case of the Postnati, 343. Prosecution of the Countess of Shrewsbury, 343. Death of Chief Justice Fleming, 243. ! CHAPTER VII. LIFE OF LORD CHIEF JUSTICE SIR EDWARD COKE. FROM HIS BIRTH TILL HE WAS MADE CHIKK JUSTICE OK THE COURT OF COMMON PLEAS. Merits of Sir Er)\VARn Coke, 345. His Family, 34^). His Birth, 246. At School, 347. At the University. 247, A Student of Law, 248. He it called to the Bar, 24>). His first Bief, 249. He is Counsel in " Shelly'* Case," 251. His great Success iuul professional Profits, 351. His tint Marriage, 252. He is appt-intcd Recorder of Coventry, &c., 252. He Is made Solicitor General, 2jj. He is elected Speaker of the House of Commons, 254. His Conduct as Speaker, 254. His Address to the Queen on the Dissolution of Parliament, 254, Rivalry between Coke and B.icon for the oflfice of Attorney General, 257. Coke is preferred, 257. He ex- amines State Prisoners and superintends the Infliction of Torture, 257 His brutal Behavior on the Trial of the Earl of Essex, 25S. Coke in Private Life, 259. Death of his first Wife, 259. His Courtsliip of Lady Hatton, 260. He breaks a Canon of the Church, 261. He is prosecuted in thr Ecclesiastical Court, 262. His Quarrels with his se id ^V'ife, ?G2. Accession of James I., 2C3. Coke is knighted, 263. Ii... iu,-u!li! 1 lan- guage to Sir Raleigh, 364. Logumachy between Coke 11; J «. 1)6. Bacon's Letter of Remonstrance to Coke, 267. Coke t ■ ''urti the I'ros- ecution of Guy Fawkes, 268. Trial of Garnet the Jesuit, 270. Coke made Chief Justice of the Common Pleas, 272. CON TENTS. x\x C II A r T K R V I I I . CONTINUATION OF THE MFB OK SIR RDWARu t OKB. T LU UB WAS DISMISSED FROM Ml '• OKKICK '" CHIEF JUSTICE OF THE COURT oH" KING S UKNCll. Ills Mcritoiious Conduct ns a Jiidije, 275. I'ii.l taken liy him in the CiH of the Postnati, 276. He opposes llic Court of Hi^'h ComirttiHsion, 277. lie resists the Claim of the King to sit and fr>' Causes, 27S. He checks ihe jirbitiary Proceedings of other Courts, 280. He denies the power of fhr Ciown to olter the Law by " Proclamntlon," 281. Coke against hi» .Mi! i . lude Chief Justice of the King's Bench, 283. He gives a qualificii Support to "Benevolences," 285. His laudalde Conduct in Pcacham'ft Case, 285. He exerts himself to bring to justice the Murderers ol Sir Thomas Ovcrbury, 287. Hacon afraid thiit Coke would be made Lord Chancellor, 289. Coke's Dispute with I-ord Ellesmere about Injunctions. 290. Coke Incurs the King's high Displeasure in the Case of Com. mendams, 290. He stops a Job of the Duke of Huckinghom, 294, Ci.ka is summoned before the Privy Council ; frivolous Charges against hifn, 296. He is suspended from his office of Chief Justice, 296. Alleged Errors in his Reports, 296. Proceedings against Coke before the Privy Council, 299. Coke is dismissed from his ofTice of Chief Justice of the King's Bench, 300. He sheds tears on his Dismissal, 301. He soon rallies, and behaves with Firmness, 301. CHAPTER IX. CONTINUATION OF TIIF. LIFE OF SIR HOWARD COKE, TILL IIB WAS SENT PRISONER TO THE TOWER. Coke's Conduct after his Disgrace, 303. His Plan to circumvent Bacon bjr marrying his Daughter to Sir John Villiers. 304. Resentment of LaW- :-0 V ! > . 1 / ; ■•:',r.vND 'i [. M!' '.:■ iVi '•■(•. ■<■ ^>. .1-^ 11,' (.•il.;. 1 ut ;! :■■ . i[U'. T'vr Ton"; N^■n•' • 'i;' >• \^■^:•■ It :.•;,! !> isi.'"' ' 'ri\c {Mpaioi's • 1 • uo'' .in o' '.•..• 'vomM ll.iv^ lil .M-i:. 'I iiid ■' i- h t ii, IVmH" ;.:« .■■!!'■ h ii! :i •. i"r' :ril i^),!l ■■ . ' ■! 5(;lf-i;'o\\.'rnr.!', ;U. I '■ dtTii.-. .au] ii j\i.i ;•;'. i;- ; .r:c:n.-L.l. :\ :•:-:,:.:- :. •. : " IIV liV; '■■- 'I. ;.\' . ' ' . wi.ich tii, ■ V •'( j.jinrly. «,: 4 .. ,■ ■ s;on::!l\ ( .\- 1 r'.. 'ii- ;iiv! the .;•>]> ,..'i'.,v.-'CS l-;'S • ]^ - fi ■. . ,i' vi. mi- hi bi:* coni- • * '■'■ .''(fi \v .:■ i.'X'Tvi-'cd '•• ''^;h ».;;:;Mly; nvcr ' . • .'. ra'Di. pro >iclcd I. : - ■, \ I- .*•,. iU',^:r:'V^te. > i M tlio I '■ ■ . ; I'liai-.io .!'i ••'leiui iti . l-XUfl, \' ii'-;-': tlil': ...fii'J^- ■• exuicd in Ku_i;ii.i>i u- v.iiUd, ani UctK ; vH. • *hf Ch.',iic:;lloi-„" vul • . i : rn j;"^-! •>'- '•Iterc'V'.', ,.,■;.,., .'., ,.. -jj_-, -. ...iitu.s t i;ii. ■ . .' , ,'1. /«.! •'.■■:'/■. Jn S^"U • -, •, ii;! -L expiry r-th-f vfj^^ -. -. i- ^\0!d ''-'■•«;'■!'-■',•,'>••(<.• p (;, .' * ;, iirjASV." ;Ve " I.e. i'j, o€ / ii III I ,\l. !l!f i! Ml". \' M.iij -.1 i -'Vil-'u.; ■.■■ ^ 'Tfi |WIIIIMI||^WI | ' .".J l^i •^m^ mm- ' n- - vn ^m ' - ■ . if^ 'w hi w l y. ■■ LIVES O" Tiin CHIEF JUSTICES OF ENGLAND. CHAPTER I. LIVES OF THE CHIEF JUSTICES FROM THE CONQUEST TO THE REIGN OF EDWARD I. TlIK office of Chief Justice, or Chief Justiciar, w as introduced into England by William the Con- queror from Normandy, where it had long ex- isted.' The functions of such an officer would have ill accorded with the notions of our Anglo-Saxon ancestors, who had a great antipathy to centralization, and prided themselves upon enjoying the rights and the advantages of self-government. The shires being parceled into hun- dreds, and other subdivisions, each of these had a court, in which suits, both civil and criminal, might be com- menced. A more extensive 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 importance and difficulty were occa- sionally brought by appeal before the Witenagemote, ' Of the two names "Justice " and "Justiciar," we have this account by Spelman : " yustitia al. J'listitiiirius. Piior vox in juris nostri formulis, so- hiinmodo videtur usitala, usque ad iutatem Ilenrici 3. altera jam se efferente, ha;c paulatim disparuit : scd inde hodie in vcrnaculo et juris annalibus Gal- lico-Normancis ' fl ' vel ' un Justice ' dicimus, non ' Justicer.' " In Scot- land, where this office was introduced, along with almost every other which existed in England under the Norman kings, the word yustitiarius pre- vailed, and hence we now have the " Court of JirsTlciARY. ' See " Lives of the Chancellors," vol. i. p. 5. I.— I RETGN OF WILLIAM THE CONQUEROR. and here they were disposed of by the voice of the ma- jority of those wiio constituted this assembly. We do lind, in the Anj;lo-Saxon records, a notice of "Totius Ani;li;e Aldcrmannus," but such a creation seems to have taken place only on rare emeri^encies, and we have no certain account of the duties intrusted to the person so desi'jjnated.' In Normandy the interference of the supreme oovernment was m.uch more active than in Eni;- land, and there existed an officer called ClllKK Justic- iar, who superintentled the administration of justice over the whole dukedom, and on whom, accordini^ to the manners of the a<;e, both military and civil powers of great magnitude were conferred." Before William had entirely completed his subjucjation of Enjdand, eai^cr to introduce into it the laws and insti- tutions of his own country, so favorable to princely pre- rogative, — while he separated the civil and ecclesiastical jurisdiction, and confined the Count}'' Court (from which the rjishoj) was banished) to the cognizance of petty suits, — preparatory to the establishment of the feudal system in its utmost rigor, he constituted the office of CillEF J US- TICIAR. Mis plan was to have a grand central tribunal for the whole realm, which should not only be a court of appeal, but in which all causes of importance should originate and be finally decided. This was afterwards called Curia IvEgis, and sometimes AULA Regis, be- cause it assembled in the hall of the King's palace. The great officers of state, the Constable, the Mareschal, 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 ' Dusd. Or. Jur. ch. vii. Mad. Ex. ch. i. Spel. Gloss. " Justilia." Coke's 2nd Inst. ch. vii. * It is curious to observe that, notwithstanding the sweeping changes of laws and institutions introduced at the Conquest, tiie characteristic iliffcr- ences between Englishmen and Frenchmen, in the management of local af- fairs, still exists after the lapse of so many centuries ; and that wliile with us parish vestries, town councils, and county sessions, are the organs of the petty confederated republics into which England is parceled out, in France, whether the form of government be nominally monarchical or republican, no one can alter the direction of a road, build a bridge, or open a mine, without the authority of the " Ministre des Fonts et Chaussees," In Ire- land, there being much more Celtic than Anglo-Saxon blood, no self-reli- ance is felt, and a disposition prevails to throw everything upon the govern- nent. OFFICE OF CiriFF JUr.TICIAR. authority, and when the Kinf.^ was beyond seas (which frequently happened) he governed the reuhn like a vice roy.'" lie was at all tinics the tniardian of the public peace as Coroner-General,' and he likewise had a control over the finances of the kinc;dom.' In rank he had pre- cedence over all the nobility, and his power was greater than tliat of alj other maj^jisirates/ The administration of justice continued nearly on the same footing for eight reigns, extending over rather more than two centuries. Although, during- the whole of tin's period, the Aula Rkc.IS was preserved, yet, foi convenience, causes, according to their different natures were gradually assigned to different committees of it, — to which m:iy be traced the Court of King's Ik-nch, the Court of Common rL;;s, the C'ourt of Exchequer, and the Court of Chancery. A distinct tribunal for civil actions was rendered necessary, and was fixed at West- minster by the enactment of :VIa(;xa CilAirrA — " Com- munia placita non sequantur curiam nostram, scd tcneantur in aliciuo certo loco;" but the suitors in other c.iuses were long after obliged to resort alter- nately to York, Winchester, Gloucester, and other towns, in which the King sojourned at different seasons of the year.' At last a great legislator modeled our judicial institutions alniost exactly in the fashion in which, after a lapse of six centuries, they present themselves to us at the present day, showing a fixity unexampled 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 ' Madtl. Exch. xi., where it is said "he was wont to be styled Justicia Re- gis, Justiciarius Regis, and absolutely Justicia or Justiciarius ; afterwards he was sometimes styled yusticiarius A't-qis Aiii^lia:, probably to distinguish him from the King's Justiciar of Ireland, Normandy," &c. ^The Chief Justice of the King's Uench is still Chief Coroner of England. 'It is su])posed to be a remnant of this power, that, rpon the sudden death or resignation of the Chancellor of the Exchequer, the Chief Justice of the King's Bench does the formal duties of the office till a successor is appointed. *" Dignitate omnes regni proceres, potestate omnes superabat magistra- tus." — Spel. Gloss, p. 331. 'The Court of King's Bench is still supposed to be ambulatory, and by original writs the King orders the defendant to appear on a day named, "wheresoever we shall then be in England." p 4 REIGN OF WILLIAM THE CONQUEROR. [1066. should introduce to the reader pome of tlic individuals who filled it in its (rrcatcst splendor. The first Chief Justiciar of Eni^land was Ono. The beautiful Arlotta, the tanner's dau[.diter o{ Fa/aisc, who, standinjT at her father's door, hail captivated Robert, Duke of Normandv, — after livin;' with him as his mis- tress, brinc;ing him a son, the founder of the royal line of Enpjland, lamentiniT his departure for the Holy Land, and wcepinj:^ for his death, — was married to Ilorluin, a Norman knii^dit, by whom she had three children. Odo, the second of these,' possessing^ bris^ht parts and an ath- letic frame, was bred both to letters and to arms, and, while he took holy orders, he still distin[];uished himself in all knisfjitly achievements. He was a special favorite with his brother the youn?^ Duke, who made him at an early age Bishop of Bayeux. Nevcrtiicless he still con- tinued to assist in the military enteri)riscs by which. William extended and consolidated his continental do- minions, and attracted warriors from all the surrounding states to flock to his standard. When, on the death of Edward the Confessor, the Duke of Normandy claimed the crown of England, and prep^aed to wrest it from the perjured Harold, Odo preached the crusade in the pulpit, and zealously ex- erted himself in levying and training the tro(. j s. From Bayeux he carried a chosen band of men-at-arms in ten ships, with which he joined the main fleet at a short dis- tance from St. Valery. He 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 daybreak of the ever-memorable 15th 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 liand, and drew up the cavalry, with the command of which he was intrusted. In the fight he performed prodigies of valor, and he mainly contributed to the victory which had such an in- fluence on the destinies of England and of France. The famous Bayeux tapestry represents him on horseback, ' The eldest was Robert, Earl of Mortaigne ; and the youngest a daugh- ter, Countess of Albemarle. Will. Gem. vii. 3; viii. 37. Pict. 153,211. Orderic. 255. ,;fr^..... .;. i.>^-.,. 1067.] ODO. and in complete armor, but without any sword, and bcarintj a staff only in his hand, witii the superscription " HicOdo Epis. baculeni tenens comfortat," as if he had merely encouraged the soldiers. Althoajrh there mij^ht be a decency in mitii^fatini^ his military i)r«jwess in the eyes of those whose soids he had in cure, there is no doubt that on this day he acted the part of a skillful cavalry officer and of a valiant trooper. When the ceremony of the coronation was to take place in Westminster iVbbey, he wished to consecrate the new monarch, and to put the diadem on his head ; but, to soften the mortiiiciition of the Eni^lish, and to favor the delusion that the kini.;dom was to be held under the will of the Confessor and by the voluntary choice of the people, Aldred the Archbishop of York was preferred, ami he asked tlie assembled multitude "if they would have William for their Kins.];?" Odo, as a reward for his services, received a ^rant of larj^e posses- sions in Kent, and was created I.^ari of that county. In contemplation of the establishment of the AULA IvKGIS, Iiy the aj^ency of wliioli the Norman jurisprudence was to be introduced into En!4land,and Norman domination perpetuated there, Odo was likewise appointed GRAND Justiciar. Like many ecclesiastics of that time, he had attendetl to the Roman civil law and the learning of feuds, as well ar. to the canon law ; and it was expected that hew(niKl be useful not only in judicial proeeedinf.^s, but in the meetin^^s of the national assembly, by which the Conqueror thout;ht of giving- an appearance of legal- ity to his rule. This arrangement was highly successful ; and so quiet did all things a])pear to be in England, that in the fol- lowin'>- year William returned to Normandy to show his new grandeur to his countrymen, and remained there eight months, taking with him Edgar Atheling, the le- gitimate heir to the throne, and many of the principal En:, ish nobility. Odo was left behind as Justiciar; and William Fit/-()sbornc, a redoubted knight, related to the ducal family, was associated with him in the re- gency. The Norman chroniclers pretend that Odo on this occasion displayed prudence and humanity, but had to encounter fickleness and ingratitude ; while the Sax- w i 1. ■!« iliiljl 6 REIGN OF \VlLL:A:>r THE CONQUEROk. \\omI on chroniclers assert tliat he oppressed antl insulted the natives so as to drive thetn into ri:h('llion. Tlu- result was a general itismreetiou all t)Vcr I'.ri'^land, and William was obliged to return and to rcconcpicr the kinfjjdom. Odo was a|j;ain most useful to \\\w\ l)oth in council and in the field, and was confirnK'd in his office of Justiciar, whicli he exercised for some years with undivided sway. Henry of lluntinjjdon, after givinr^ an account of Wil- liam haviiiL,' put down all resistance, \i\\A of the s[)lend(>r of his court, enumerates amoii;;" thi-' {j;randees present " Odo Et^iscopus Jhiiocmsis, yasticiarins ct Princcps toiius Ainf.iic. " 1 find the report of only one cause tried before him, Guuiiulpii, Bishop of Roclicrtir v. Pcc!:ot, Sheriff of Cain- bridiyshire. 'i'hc defendant had seized the land of Fra- cc'iiliam in ri[.^ht <.A the Ivin;';. and it was claimetl by the plaintiff in rii^ht of his Churciu The Kin;^ ordered the trial to take phice before Odo, the (irand Justiciar, lie, goin^T to the spot, summoned a folhmote, or general meeting of the freeholders, who, after an impartial sum- ming up, found a verdict for the crown.'^ There was another trial of high interest soon after, at which Odo, the Ju:;ticiar, could not well [)reside, as he was the party sued. Lanfranc, an Italian ecclesiastic, having succeedetl Stigatid, the Saxon, as primate, com- plained that the Earl of Kent unlawfull}' Icept possession of large territori.:.;, in tliat county, which of right be- longed to the See of Canterbury. Geoffrey, Bisiiop of Coutance, was specially appointetl by the King to act as Justiciar on this occasion. The tried took place in a temporary court erected on Penenden Heath, and lasted three days; iit the end of wliich time judguienL wu* given for the Archbishop against the Earl.' ' L. vi. p. 371. The Saxon ChronicL- says, " I'liil (Oiln) admoiluin polei • EpisLopus in Noniiiimia ct Ke.:;i oiniiiuin maxime lulclis. Ilalniit au'.u .1 coniit.Uiun in Anglia cl (luum Rox rral in Norm vnnia I'uit i!!c primuo '.w hac terra." — C/nvii. Sdx. ji. ic/). n. '.'O. 25. ""H.-inc cnim V'iccconics Rc::;i'i cs-.o terrani dicLlial ; scJ I'lpiscopus, eanfleni S. Anilrc;-c potius cs:,l' allirnialjat. (^aare ante Rcgcni vuncrunt Rex vcro j^riecepit, ut onmcs illiiis comitatus homines conj^rcgarenlur el eorum judicio cujiis terra tleceret recliiis esse prubarelur," &c. — Ex Ernulji, Hist, aj'ttd AitL;l. Siix., I. i. p. 339. * Till* report of the case, one of the earliest to be fi)und in our hooks, ihuf I082.] ODO. Odo, howcv>;r, wr . foou indcninificd from the spoils of till* Anfj[lo-S;iXf»n noljics; and hciiif'; allowed, notwith- staiuliii^ licavy coniplaitits a^fainst him, to retain hi3 (iffice of Chief Justiciar, he amassed immense riches. Jiy turns he ofliciated as a prelate, celebrating; mass in the Kin{;'s chapel, -he sat as supremo jud^^e in the AuiA Rr.(JIs,- and In- commanded the Kin<;'s troopr, in put- ting down insiirreclions.' Allhoui.'h scrupulous when presiding on the bench, it is said lliat when intrusted witli a military command he thou-^ht it unnecessary to discriminate between j;uilt and innocence; he executed without inveslif;ation all natives who fell into his hands, and he ravaj.'jed the whole country.' After he had held his office of Chief Justiciar nearly fifteen years, he fpiarreled with the Kiiu;, by entering into a mad cnt'-rprise wliieii miy;ht have materially weakened the Norman power in I'lni.^land. An astrolo- [jer had foretold th.it he should reach the papacy and become so\erei;.;n of all Ita!}'. The fortune of Guiscard, in Sicily, had excited the most extravaj^mt expectations am<3n(]f his countrymen, and they openly boasted that the whole of I'.urope would soon be under Norman rule. Odo expected to |;ain his object, partly by corruption, and partly by force of arms. Grei^ory, the rei^ming I'ope, was still in the vi^or of manhood, but s(jmchow a vacancy was to be occasional, and was to be fdletl up by the llishop of IJayeux. With this view he bou^^ht a stately palace at Rome ; he transmitted immense sums of money to Italy; ami he induceil Hugh, F.arl of Chester, l)e};ins: "Do placito .njnid Pineiulenani, inter I.anfraneum Archiopiscopum, ct Ddoneni ^).li()^:en^'■lll ]',])isi:()pnm. Toinpori M;ii;iu Rcj^is Wiiielmi qui Aii;.;lu:iiin ic|;miin armis coiupiisivit, i*v:c. Iliiic placito iiitcrfiierunl Gors- friiliis Cniistantifiisis, (jui in loco Rc'i;is luit I't Jusliuiam illam tcniiit ; Lan- francus l'',))isc()pii> qui ]>latitavit ; Comes (.'anti.e, iS:c. et alii multi li."roncs Kcf;is el ipsius AichiopiMopi, et alii alinnmi coniitaluiwu homines etiam cum isio toto comilatu, uuilli et niaj^n.o auctorilalis viri l'"raiicii:;ena; scilicet et Aii;;li," &c. — Ex Kniulji, Hist.' Apud Au^l. Sax., t. i. p. 234. It was clearly ])roveil that, while Stij^and was in disj;race, Odo had taken posses- sion of many manors hcloiii.'in^ to the ArchiMshnpric. Sec the proceedings at length in Selden's Spicilet^iuni, p. 197. ' " In seculari ejus fiinctione, non sf.liim rem exercuit judlciariam ; sed bcllis utirpie assuefactiis cxercitiim Kandiilphi Coniiti.; Kstanglia;, suorum- que confivderatonim, jirotlij^avit ; ct in uliione necis Waltcri Dunclmensis Ei)isco|)i, Northumhriam late jjopulatus est." — S/r/. Gloss, p. 337. * 3im. 47. Malm. ()2. Ciuon. Sa.\. lS.j. Flor. 639. >«fm 8 REIGN OF WILLIAM THE CONQUEROR. [1087. i ( ■ / ) ■ S 1' and a number of otlier Xorinan nobles settled in Eng- land, to whom he promised Italian principalities, to join him, accompanied by a considerable body of military re- tainers, and to embark with him for a port in the Mediterranean. This enterprise had been carefully con- cealed from tlie knowled^^e of the Kinc;. But William, hearinjj of it before the lleet sailed, highly disapproved of it, dreading that, after such a loss of treasure and soldiers, the mutinous Ancilo-Saxons miidit shake off his yoke. lie therefore seized the money and stores pre- pared for the enterprise, and gave orders that Odo should be arrested. The officers of justice, out of re- spect for the immunities which ecclesiastics now assumed, scrupled to execute the command. William thereupon arrested his brother with his own hands. Odo insisted that he was a prelate, and therefore exempt from all temporal jurisiliction ; whereupon William exclaimed, " God forbid that I should touch the Bishop of liayeux, but I make the Earl of Kent my prisoner." The Earl- Bishop was immediately sent over to Normandy, and kept in close confmemcnt there for five years among many other state prisoners.' At last, the Conqueror being on his death-bed, it was suggested to him by his ghostly advisers, that if he hoped for mercy from God he ought to show mercy to nian, and to set at liberty the noble captives whom he had long immured in the dungeons of Rouen. After trying to justify their detenLion, partly on the ground of their Lreasons, partly on the plea of necessity, he as- sented to the request, but long insisted on excepiing his brother Odo, a man, he observed, whose 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 enlargement. 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 in- terment of his brother and benefactor, proceeded with • Chron. S.ax. 184. Flor. 641. Malm. 63. H. Hunt. 731. Angl. Sax. i. 258. I087.J ODD. all speed to Eiij^l.uia to make advantac^^c of the election to the vacant throne. On condition of bein?^ restored to all his vast estates in Kent, and to his office of Chiet Justiciar, he aj^reed to support the claim of Rufus, and assisted at the coronation of the new sovereign.' Ac- cordingly, he presided in the sittings of the 7\ula Rkcjis held at the Feast of Christmas, 10S7, and the Feast of Faster, 1088. But his unreasonable demands of further aggrandizement being refused, and his resentment being inflamed against Lanfranc the primate, to whom he im- puted his sufferings in the end of the last reign, as well as his present disappointment, he entered into a con- spiracy with Geoffrey de Coutance, Roger Montgomery, Hugh Bigod, Hugh de Grentmesnil, and other Norman barons, to invite over Robert Curthose, his elder nephew, and to make him sovereign of England as well as of Nor- mandy, on the specious pretenses that the right of primogeniture should be respected, and that thosc^ who held estates both in Normandy and in England could not be safe unless both countries were ruled by the same sovereign. The confederates immediately took the field, expecting- Ro1)crt to join them with a large army. Odo intrusted his strotig castle of Rochester to the care of Eustace, Count of lioulogne, with a garrison of five hun- dred knights, and himself retired to Pevensey, to await the arrival of his nephew and to proclaim him king. IJut Rufus, having detached a body of tro(,)ps to lay siege CO Rochester, marched in person in pursuit of the Earl- JJishop, shut him up within the walls of a castle on the >ea-shorc, and, after a blockade of seven weeks, com- pelled him to surrender, — Robert, with his usual giddi- ness, having occupied himself with frivolous amusements, instead of hastening across the ch;uinel to claim his birthright. I3ythe terms of capitulation, life and liberty were granted to Odo, on condition that he should swear to deliver up the castle of Rochester, and to abjure the realm of England forever. 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 ' 11. Hunt. lib. vii, p. 212. ■ill i I (• 1 1 la'.k! JiMuL.<£f;:J'. xo REIGN OF WILLIAM TLIE CONQUEROR. [1096. ';!i;'! 41 I wished to be disobeyed. The slirewd governor up- braided him as a traitor to the cause, and made prison- ers both him and his guard. Rufus was excited to the highest indignation by the success of this artifice, and pressed the siege with tlie utmost rigor, being supported by a band of natives, who on this occasion rallied round him to be revenged for the oppressions they had suffered from the Grand Justiciar. However, the place was as obstinately defended by Odo, till the ravages of a pesti- lential disease compelled him to propose a surrender on honorable conditions. With considerable difficulty he obtained a promise that the lives of the garrison should be spared ; but the demand that they should all depart with the honors 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 contemptuously rejected. Accordin[,dy, his men were all obliged to lay 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 gal- lows" in his ears. Knov/ing that, by the immunities of churchmen, his life was safe, he muttered threats and defiance; but he was immediately put on board a ::hip 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, li<; v.'ould pass the remainder of his days in superintending his diocese, which he had long grievously neglected, and in seeking to make atonement by penance for the irregularities of his civil and his military career; ' Chron. Sax. 195. Order. Vit. 668. Sim. 215. In Ilalstcad's " Kent" there is a drawing of his seal, on one side of whicli lie appears as an iCarl, mounted on his war liorsc, cLid in armor, and lidding a sword in his rij^ht hand ; but on the reverse he appears in his character of a Bishop, dressed in his poiuifical habit and pronouncing the benediction. In the former cap.u;- ity he left a natural son, who afterwards gained great renown in the court of Henry I. In the latter he was celebrated for liis munificence to the see of Bayeux, which he filled about fifty years, rebuilding from the gnnuul the Church of Our Lady of Bayeux, furiii'-liing it with costly vestmints and or- naments of gold and silver, and endowing a chantry for twelve monks to pray for his soul, "bestowing his wealth, however indirectly gotten, on the church and poor." in io66.j WILLIAM FI TZ-OSBORNE. I) nd gal- 5liould but, after spending a sliort time at Bayeux, he could endure a life of tranquillity no lon,::;er, and, as he was de- barred from revisiting England, he wandered about from country to country on the Continent in quest of adven- tures, 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 at- tending 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 bt)unty, de- clares that " he was a prelate of such rare and noble qualities, that the English, barbarians as they were, could not but love and fear him.'"'' There were several other Chief Justiciars in the reign of William the Conqueror, but none of their proceedings 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-Osbornc, for a short time associated in the office, was related to the Dukes of Normand}' both b)' father and mother, and he had been brought up v/ith the Conqueror from infancy. Under h?'- advice Wil- liam acted in all the negotiations with Edward the Con- fessor 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 wis- dom in the cabinet he added that of unsurpassed courage in the field, and he acted a conspicuous part in the deci- sive battle of Hastings, insomuch that he was proclaimed to be '* the pride of the Normans and the scourge of the English.'" The earldom of Hereford was; conferred up- on 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 ' Oilier. Vit. 255. •I'ict. 153. ' riot. 151. Order. Vit. 203. Spelman says, " Aceirimus autem Anglo- rum liosti- fuit, et qui Nornianniae Duccm pm^ aliis omnibus, ad invasionem Anplia: cxcitavit, funestoquc illo Ila.sanj;t;n-;w piix;lio tertiam aciem duxit." — (iloss. p. 336. i':il ' K'-'i ■; I ml I] I! !i \2 REIGN OF WILLIAM THE CONQUEROR. [loyi backed by the Princes of Wales, set his authority at de- fiance, and continued, after various repulses, to make head ajjjainst him till William returned from Normandy, and effectually put down the insurrections which had taken place, in his absence, in this and other parts of the kinf^dom. Notwithstanding their general good under- standing, differences would occasionally arise between the Conqueror and this favored captain. It is related that, on one occasion, lMt/--Osborne, being steward of the household, or " Dapifer," had set upon ilie royal table the flesh of a crane scarcely half roasted, when the King, who in his old age was much of a gourmand, and particularly prized crane M'hen well cooked, in his anger aimed a blow at him ; this was warded off by Eudo, another favorite, but it so enraged Fit/.-Osborne that he instantly threw up his office. He was succeeded by Eudo, who is thenceforth designated by chroniclers as " Eugo Dapifer." Fitz-Osborne, having been restored to the favor of his sovereign, and created Lord of the Isle of Wight, died in the year 1072.' Geoffrey, liishop of Coutance, appointed Chief Jus- ticiar for a speci;d occasion," 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 displeas- ure of this powerful favorite, and his preferment in Eng- land was stopped. On Odo's disgrace, William de Warrennc and Rich- ard de IJenefacta were jointly a[)pointed to the office of Chief Justiciar. The former, a countryman and com- panion of the Conqueror, is chiefly noticed as being the ancestor oS. the 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, '' William the Bastard did not conquer the kingdom for himself alone ; my ancestor was a joint adventurer in • Order. Vit. 218. Mad. Ex. i. 31-40. Wilm. Malm. 396-431. * " Goisfridus Conslaiicicnsis l-^iiiscNipus, in loco Rfiris fuit, ct Justiciam tcnuit in illo notabilL placito apiul riiicndenc, inter Lanfmnctirn Archio- piocopum Cantuar, et Odonem Comitem Cantii." — 'J'l'xtus A'tijf. f. 50. 111 WILLIAM DE WAR RENE. «3 the enterprise ; what lie gained by the sword I will maintain." ' How Richard de Bcncfacta came by this surname has puzzled antiquaries. He was originally called Richard Fitz-Gislebert, or Fitz-Gilbcrt, being the son of Gisle- bcrt, or Gilbert, Count of Brion in Normandy. He gained distinction at Hastings, and as a reward for his bravery he received 8 lordships in Surrey, 35 in Essex, 3 in Cambridgeshire, 2 in Kent, l in l\Iiddlesex, i in Wiltshire, and 95 in Suffolk, besides all the burgages in the town of Ipswich. .He took an active part in the great survey recorded in Doomsday ; 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 admin- istration, invented a new punishment, to be inflicted on disturbers of the public peace. Having encountered and defeated a powerful band of insurgents at a place called Fagadune, they cut off the right foot of all they took alive, including the ringleaders, the Earls of Nor- folk and Hereford. It seems then to have been con- ' The first WiHinm dc Warrcne died 1089, and was buried in the chap- ter-house of a mcmastery he had foiindcil at l-cwes for monks of the Clu- niac order. The followiiu^ epitajih was eni^ravcd on hi;; toinh : — " Hie (jiiilclmus Comes, locus est hTudis tibi fomes Ihijus fundator, ct Karcj^us sedis amator. Iste tiuim funus dccorat, iihiciiit quia munus Paiiperibus Christi, quod ])rouqilA mente dedisti. Ille tuos ciiieres servat Tancratius hx'res. Sanctorum castris, qui te sociabit in astris. Optime I'ancrati, fer opcm te ^lorificanti ; Daque poli sedeni, talem tibi qui dedit cedem." Tt is reported lliat " this Karl William did violently detaiti certain lands from the monks at Ely, for which beinj; often admonished by the abbot, and not makinj^ restitution, he died ni^erably ; and, though his death hap- pened very far from the Isle of Ely, the same nii^ht he died, the abbot lying quietly in liis bed and meditatint^ on heavenly things, heard the soul of the Earl, in its carriage away by the devil, cry out loudly, and with a known and distinct voice, ' Lord have mercy on me ! Lord have mercy on me !' And moreover, that the next day the abbot acquainted all the monks in chapter therewith ; and likewise that, about four days after, there came a messenger to him from the wife of this Earl, with one hundred shillings for the good of his soul, who told them that he died the very hour the abbot heard that outcry ; but that neither the abbot nor any of the monks would receive it, not thinking it safe for them to take the money of a damned per- son." — See Dugdale's " Baronage," p. 73, 74. I 14 REIGX OF WILLIAM RUFUS. [1087. sidcrcd that in times of rebellion the Judges were to ex- ercise martial law, or to disregard all law, accordinf^ to their own arbitrary will. There is only one other Qhief Justiciar recorded as having served under the Conqueror; William de Ca- rilcfo, or Ilarilegho, who was a pious priest, and fou^'lit oiily with spiritual weapons. He was iVbbot of St. Vincent's in Normandy, and without having been in the I'.ost which invaded England, or ever having put on a hauberk (strange to say!), from the mere reputation of his sanctity he was nominated to the bishopric of J)ur- ham. lie was consecrated at Gloucester by the Arch- bishop of Canterbur}', in the presence of the King- and the assenibled prelates of the realm. Simeon, having described this ceremony, adds, " Erat acerrinuis ingenio, subtilis consilio, magnre eloquentia simul et sapienti;e." He is much celebrated for the purity and impartiality with which he administered justice v/hen placed at the head of the AULA Regia ; as well as the vigor which he displayed in asserting the privileges of his see against the King. In the succeeding reign he was Chief Jus- ticiar a second time after the fall of Odo ; but soon quarreled with Rufus, v/ho was a notorious spoliator of Church property, and he was obliged to fly into Nor- mandy, the temporalities of his see being seized into the King's hands. However, when Rufus made a northern progress to receive the homage of Malcolm, King of Scotland, and perceived the veneration v/ith which the exiled Bishop was regarded, he had the generosity to recall him to his see, and made restitution of the lands of which he had deprived it. The prelate employed the ample revenues thus restored to him in the munificent work of erecting a new and splendid cathedral at Dur- ham, on a plan which he had brought with him from France. He also presented to the Church a large store of books and ornaments collected 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 pressure of severe illness, he expired soon after his arrival there, on the morrow of the Epiph- any, in the year 1095. Such was his modesty, that he declined in his last moments the honor of burial in his 1099.] FLAMBARD, 19 '•*>^ t * j i 'J » H' ) i< ' jj ^ >j ? :^j |fil ^» fi t * .g-*' ' WW4 » Mj »w ffT ^- ■'*. :-'".-i?l. 'iiPl I •! OLD WESTMINSTER UAI.L. .^•.,.i ■•' '■■ ' •1' II f.J-l . i ., 1 ■ ' ' l'. ! '.■,'! I . . ', i '- ; I ii I .1 " ,11 ; : . :;.,:.'- , , t \ i . U' ■;■_■■: 1-1 '.I 1 I ui' ■ I'-v' ' '1. (■'(■■,; ■■'',:\ y u i'., l;i '! ., ■ 'll 1^ il I'-'il'. L' ! ■ I" A.t-. \ ; :, •:' >' i\\. i I.' ■ Til' .-■ ■! .1 • t in, 1,1... ^ <.'<' . ' ■ . rajii'ii.i". K'-X ' ll ■ jnu'iji n.';; ''i.i : ■ ■:■ • ■ • !>i.,fii;ni' • •'.MI' :•;:■.. . I ■ . .' •.' .\ .\\\ < .) 1 1 1 • Ti • ' ■. • . , ■ re;' '"' :' . ' u., i . :'. [■' ■' > ■ .';. 'V .! V lii ' - I' 1 .'. I'.n '.\ ■>{ t'ui.l ill V '• \' -ArU- H.i ,•;!, ■ .;.i;.-!'i • J.isUivar;) IT /■■■ •i vi -JX %. -S. \ \* ^^ if^i -(«!' . ■ ..i^^-- 1154-1 PRINCE HENRY—RICHARD DE LUCf. i; than the clemency or justice with which lie exercised its functions.' Tlic Chief Justiciars of Kin^ Stephen were not men of mucli rL-nown' — till the last— who was no other than Prince Henry, aflerwanls his successor, and so famous under the name of Henry H. After the Ion;; stru;.i;;.,fle for the crown of Kn^land between the dau^diter of IKmi- r\' I. and hiin who [)retciulcd to \y: the heir maK: of tlu.' Conqueror, it was at last settled that he should rei^n (luriti!; his life, and tliat her son Ijy (leoffrjy IManta;.;onct shoid(l be immediately ap[)ointed Chief Justiciar, and should mount the throne on Stephen's death.' \ shall not attempt to rival Lord Lyttleton by attcmptini^ a history of this Chief Justiciar from hii cradle to Ids grave. 1 must content myself with sayiiv; that he held the office above a year. iJurinir the first six months he actually presided in the Aur.A Ri:(Jls, and, with the as- sistance of the Chancellor and the other f^reat officers of state, decided the causes civil and criminal which came before this hij^h tribunal. He then paid a visit to the continental dominions which he hehl in his own rii^ht and in riLjht of Eleanor his wife, extending from Picardy to the mountains of Navarre. Sojourninc^ in Normandy when he heard of the death of Stephen, he was impa- tient to take possession of the crown which had been secured to him by the late treaty. A lon^ continuance of stormy weather confined him a prisoner in the haven of Barfieur, but at last Iv 'cached Southampton, and, bein^ crowned Kinj^ of E .L;land, the first act of his reign was to appoint a new Chief Justiciar. The object of his choice was Richard de Luci, a pow- erful baron of a distin'^uished Norman family, who was expected to govern the realm with absolute sway in Henry's name. Although he long nominally retained ' He was succeeded by his son Richard Basset, of whom I do not find any more precise notice tluiii by Ordericus Vitalis, who says, " Ricardus Basset, cujus in Anglia, vivcnto Henrico Rc^^o, polentia, utpole Caii.tulis Ju >!. tarii, magna fuit." — OrJ. Vit. ad aim. 1136. •Geoffrey Ridel, Geoffrey de Clinton, and Alberic de Vero. *" Anno Gratiae I153, qui est annus 18 regni Regis Stephani, pax An^liae reddita est, pacificatis ad invicem Rege Stephano et Henrico Duce Nor- mannise. Rex vero constituit Ducem Justiciarium Anglije sub ipso, et omnia negotia per eum terminabantur. Et ab illo tempore Rex et Dux unanimes erant in regimine Regni." — I/oveden, vol. i. p. 490. n. 20. I. — 2 ! i i^ i8 REIGN OF HENRY II. [1163. his oflflce, it was soon stripped of all its power and splen- dor. The Lord Chancellor had hitherto been a subor- dinate 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, becoming Archbishop of Canterbury, he quarreled with his benefactor, all the power of the state was concentrated in his hands. Encroaching on the functions of the Chief Justiciar, he not only ruled all questions that came before the AULA REGIS, 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 im- portance of De Luci was very much enhanced, and we not only find judicial proceedings recorded as having taken place, " Coram Ricardo de Luci et aliis Baronibus apud Westmonasterium," but we learn that he went about administering justice all over the kingdom, and that he quelled a dangerous insurrection in London. To him we are chiefly indebted for the CONSTITUTIONS OF Clarendon, by which a noble effort was made to shake off the tyranny of Rome, and which were adopted as the basis of our ecclesiastical polity at the Reforma- tion.* Ke was excommunicated 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 grandeur, 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. Although inferior men now held the Great Seal, the office of Chief Justiciar did not recover its splendor till near the end of ' " He came after the Justiciar, the Constable, the Mareschall, the Seneschal], and the Chamberlain." — Madd. Exch. c. ii. • Madd. Exch. i. 146-701. ' "Ric. de Luci Justiciarius Angliae, relictJl Justiciari& potestate, factus est Canonicus regularis in Abbatii de Lesnes quam ipse in fundo suo fecerat." — R. Hoveden, f. 337, a. "74-1 RANULFUS DE GLANVILLE. «9 the this reign, when it was filled by one of the greatest men who have appeared in English history. We are in- formed of only one judgment of the King's Court while the Earl of Leicester presided there, and this upon the ex-Chancellor, Thomas a Becket, who was first amerced in ;^5oo, and, proving contumacious, was ordered to be imprisoned.' I will therefore pass on to Ranulfus 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 ; his family was noble but I do not find any particulars of his progenitors.* He afforded a rare instan.;e 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 famil- iar with all martial exercises, but having studied the art of mancEuvring large bodies of men in the field, according to the most scientific rules then known. He attached himself to several Chief Justiciars,* sometimes assisting them in despatching business in the AULA Regis, and sometimes accompanying them in their cam- paigns. 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 Westmore- land.* During the year 1174, the 20th of Henry IL, he was High Sheriff of Yorkshire, and in this capacity he con- ferred greater glory on his country than any English- ' Hoved. vol. ii. 494. n. i. 10. 20 ; 495. n. 10. * " Ranulph de Glanvilla fuit ver prseclarissimus genere, ntpote de nobill sanguine." — See Preface to Lord Coke's 8th Rep. xxi. * From his knowledge of practice, and all the forms of procedure, there seems reason to think that he must some time have acted as prothonotary 01 clerk of the court, although never in orders. * Madd. Exch. i. 297. (^), 430. {b), 328. (/) ; ii. 183. (y\ 200. (^). 40 REIGN OF IIJ^NR V IT. I1174. ill 11^ J I 1; ' I ll^i man, before or since, holding merely a civil office Henry II. being hard pressed in his continental domin- ions by the unnatural alliance between his rebellious sons and Louis VII., the Scots under their King, Wil- liam the Lion, invaded England, and committed cruel ravages in the northern counties. Being stopped on the banks of the Tyne by the obstinate defense of the Castle of Prudhoe, Geoffry, Bishop of Lincoln, the King's son by the Fair Rosamond, collected a large army to en- counter them. At his approach they retreated to the north, and he, thinking that they had recrosscd the Tweed, marched back to his see, singing Te Deum, and celebrating very boastfully the 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 the Tees to collect provisions and levy contributions. One of these, commanded by Dun- can, Earl of Fife, surprised the town of Warkworth, which they burned 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. Ranulfus de Glanville, the sheriff of Yorkshire, hearing of these excesses, without waiting for orders from the government, issued a proclamation for raising the posse comitatus, and all classes of the inhabitants flocked eagerly to his standard. With a body of horse, in which were about four hundred knights, after a hard day's march, he arrived at Newcastle. There he was told that William the Lion, instead of repressing, encouraged the devastation committed by the marauders, and, believing that there was no longer any army to face him, entirely neglected all the usual precautions of military discipline. The gallant sheriff resolved to push forward next morn- ing, 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 armor, in five hours had proceeded nearly thirty miles from Newcastle. As they were then traversing a wild heath among the Cheviot Hills they were enveloped in a thiclc II74.J RANULFUS Die GLANVILLE. %\ fog, and the advice was given that they should try to find their way back to Newcastle ; but Glanville, rather than stain his character with the infamy of such a flight, resGi\ od 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 saw before them in near view the castle of Alnwick beleaguered by straggling bands of Scots, and the Scottish King amidst a small troop of horsemen diverting himself with the exercises of chiv- alry, free from any apprehensions of danger. William at first mistook the Englishmen for a party of his own countrymen returning loaded with the spoils of di foray. Perceiving his error, he was undismayed, and. calling out " Noo it will be seen whilk be true knichts,''^ he in- stantly charged the enemy. In a few minutes he was overpowered, unhorsed, and made prisoner. Some of his nobles coming to the rescue, and finding their efforts ineffectual, voluntarily threw themselves into the hands of the Iv' h, that they might be partakers in the calamity :• ■: eir sovereign. Glanville, prudently con- sidering ihcit he might be endangered by the reassem- bling of tlie scattered bands of the Scots, immediately set off with his prisoners for Newcastle, and arrived there the same 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 Richmond, he sent off a messenger to London to announce his victory. It so happened that, the same hour at which William was taken at Alnwick, Henry had been doing penance at the tomb of St. Thomas of Canterbury.' Alarmed by * These words he must have spoken that they might be understood by his Lowland common soldiers. Addressing the knights themselves, he would have spoken in French, which was then the language of the higher orders in Scotland as well as in England. * All Europe was nosv rintjing with the fame of his miracles, and, by a papal bull issued the y^ar before, he had been declared a Saint and a Mar- tyr, an anniversary fc'st.<.\il being appointed on the day of his death "in » ' , aa REIGN OF IIENR F //. I»i74 IB the dangers which surrounded him from domestic and foreign enemies, and dreading that he had offended Heaven by the rash words he 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 Can- tvMbury Cathedra he alighted from his horse, and walked thither barefoot, over a road covered with rough and sharp stones, which so wounded his feet that in many places they were stained with 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 prostrate on the hard pavement, employed in prayer, and without tasting nour- ishment. He then journeyed on t^ Westminster ; and he was lying in bed, very sick from the penance he 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 was the bearer of import- ant despatches, swore that he must see the King. The warder at the gate and the page at the door of the bed- chamber in vain opposed his entrance, and, bursting in, he announced himself as the servant of Ranulfus de Glan- ville. The question being asked, " Is all well with your master?" he answered, "Ail is well, and he has now in his custody your enemy the King of Scots." " Repeat those words," cried Henry, in a transport of joy. The messenger repeated them, and delivered his despatches. Henry, having read them, was eager to communicate the glad tidings to his courtiers, and, expressing gratitude to Ranulfus de Granville, piously remarked that " the glo- rious event was to be ascribed to a higher power, for it had happened while he was recumbent at the shrine of St. Thomas."' 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- order that, being continually applied to by the prayers of the faithful, h« should intercede with God for the clergy and the people of England." • Newb. ii. 36. Gervase, 1427. Dalrymp. Annals, i. 129. R. Hoved. 529. J-'=*'i'-"" ii3o.] RANULFUS DE GLANVILLE. n ii ^ t , 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 Regis, and to go iters or circuits for administering justice periodically in different parts of England.' In this new capacity he showed as much zeal as when leader of a military band, and the only fault imputed to him was that he sometimes displayed " a vigor beyond the law." These stretches of authority, however, were jus- tified or palliated by the turbulence of the times. He now possessed the entire confidence of the King, and he gradually acquired more influence than any other minis- ter. 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 entertained the Fair Rosamond 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 Glauville, and was continued to him. till the death of Henry, after a lapse of sixteen years. He had contrived, however, 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 gained the object of his ambition, and was installed in the office of Chief Justiciar. It had been some time in commission, the commissioners being the Bishops of Winchester, Norwich, and Ely ; but as soon as the Pope 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 dio- cese to which they had been consecrated. On their res- ignation, Ranulfus de Glanville, with universal applause, ' There seems reason to think that he was one of a court appointed to r^ ceive petitions in the first instance, and to report upon them to the Aula Regis, After the mention of his name with five others, there is the follow- ing observation in Maddox : — " Isti sex sunt Justitise in curia regis constitu'i ad audiendum clamores populi." * See the authorities collected by Miss Strickland in her excellent Life of Queen Eleanor. «4 REIGN OF HENR Y II. [1184, »■' I y ■ ii r was appointed to the office with sole and undivided sway.' He is the first who filled it who is celebrated for learning, impartiality, and other qualities purely judicial. Under him the Aula Regis deserved the praise be- stowed upon it by Peter de l^lois 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 ire admitted ; there all things pro- ceed according to ules of judgment and justice ; nor does ever the sent' _e 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 patronize, 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 impen- etrable defense.''' Yet my Lord Chief Justiciar Glanville himself did not escape calumny. The story was circulated against him, and is recorded by a contemporary historian, that, to get possession of the wife of Gilbert de Plumpton, he brought a false charge of rape against that potent Baron before the AuLA Regis, sitting at Worcester, and sen- tenced him to be hanged ; but that the King, taking pity upon the prisoner, and knowing the motive for the pros- ecution, spared his life, and commuted the sentence to perpetual imprisonment.' This is probably a scandalous perversion of the truth by an enemy ; for we have every reason to believe that the Chief Justiciar was a man of pure morals and honorable principles ; and it is incred- ible that Henry, who was renowned for his love of jus- ' Diceto, 606. R. Moved. 337. * Epistle 95. ad Hea. Regem. •A. D. 1184. " Eodcm anno cum Gilbertus de Plumtun Miles nobili prosapia ortus ductus asset in vinculis usque Wigorniam, et accusatus es&et de raptu coram Domino Rege a Ranulfo de Glanvilla Justiciario Angliie, qui eum coudemnare volebat, injusto judicio judicatus est suspcndi in pati- l)ulo. Rex pietate conimotus pi'xcepit custoditum manere ; sciebat enim quod per invidiam fecerat Hkc illi Ranulfus de Glanvilla, qui eum morti tradere volebat propter uxorem suam. Sic itaque Miles ille a morte liber- atus usque ad obilum Regis full incarceratus." — A*. IJovcd. vol. ii. p. 622, 623 Bfti ■n-i !l 1 I'i, 1 ii- n ii. w H' 'I, I i $9 REIGN OF JIENR Y II. L1186. disregarded the mandate, and was more eager than ever to mortify the monks. His Holiness thereupon ap- pointed the abbots of Battle, Feversham, and St. Au- gustine to enforce the execution of the mandate. They, holding an ecclesiast'^al court under the Pope's author- ity, were about to 1^1., uc process against all connected with the new foundation, when Glanville, as Chief Jus- ticiar, issued a writ of prohibition, which is still extant, in the following form : — " R. de Glanville, &c., to the Abbot of Battle, greet- ing: 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 j'ou shall have answer made to me thereupon ; and, all delay and ex- cuses being laid aside, that you appear before me in London, on Saturday next after the Feast of St. Mar- garet 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 Can- terbury, 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 attach- ment to the Court of Rome, refuse to submit to the ad- vice of your sovereign o- ot any other person." — Subprior. " Saving the interesto of our monastery, and the rights of the Church, we are ready to submit to the King ; but we are greatly deterred from implicitly trusting to the King, by reason that he has suffered us to remain during almost two years deprived of all our possessions, and in a measure imprisoned within our walls." — Glanville, C. J. " If you doubt the King, there are bishops and abbots of your order, and there are barons and churchmen be- longing to the court, who, should you trust your cause to ' Appendix to Litt. Hist. H. II. vol. vi. 427. It is supposed that there was a similar writ to each of the other two legates, but this is the only one «xtant. '■*-«i /• '' . ! '■ I 7^ !i ! ir ^ VO . » OO T ; \ r I I. cn, v.'oui' bishoj> lici; ■ \v'a ' :m ■I -I'i.l' I' \k:\ e \"(i" ii :\ -ii '.• -.1 '-.li l.'i. L<> ' i'.«; J'. ; 'w: A, ■\. •.^. .'V. ; ! \ t '^ucli \:\ ii.,- -"i|. • .'loin Hi 'I'll. J, strrh had irr, o f *.',, i; r-; 1- v::i i I .• 1 '\ t 1 Tl- ;t.:- i.r'. i)-t'. ir. all .Ir. of hi- in l!; '11 '/,/• ( y ■J ■>. ,\! i I. '• l». '. .1:1 r :< vIh: 1'.' i.'.« I V. : "f->nv •' M: •VCillSO vJ If .". A' . n^ Ui I' ■ p'".-.t enc'i . • • of "all ; Gianvil suspt . t , vviio haii ■oni. 'ii;' 'jt*-,* paj -.la' 'i WiUf i v.'i's iut !<■;; •ihnurnr 'u$ an-t o:.'T'/i;t.'C. i.>ut rot ri^ f..«V WLi 1 ;t. i(.;kt?i ill yf rtj ■ 'f hif" .f" m studying rht I vv and . '::rtrn'-,t'v';-r; lus'. ic.-, '.vU; 'i.-ic a ^vife ?ni nUf'/ -1 uH'H '^ j« %«iii --^■- i*;. 1 I ■'■' }- ■■'%• \-3: ■■.■ ..,''-•. :■ ■'•:'i .,:;?; '*^'.Aifisi;:]i fH ^^:''^v.; •^>'«J'^';I'I ■ff ■ '(', I ■ :T M,|i. (1 ! V-ii'Jt^i- ( I t^- ill ill M m it!;'. Ill' % %:. 1188.] RA.VULFUS DK GLANVILLE. 33 them, would certainly do you justice." — Snbprior. "All these you mention are so partial on the side of the arch- bishop, so complaisant to the King, and so unfriendly to us, that we do not venture to confide in their arbitra- tion." — Glanvillc, C. J. (hasting away with much indig- nation). " You monks turn your eyes to Rome alone ; and Rome will one day destroy you !" — This controversy was at last compromised, 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 new Crusade. Europe had been thrown into a state of con- sternation and alarm by the intelligence 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 year 1189, the Archbishop of Canterbury, "by the au- thority 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 ple- nary absolution from all sins to all persons, whether ecclesiastics or laymen, who should take the cross." The same day the primate, and his vicar the Bishop of Rochester 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 disciples of Jesus, from his sepulchre being left in the hands of be- lievers in the false prophet Mahomet, exhorted men of all degrees, from the King on his throne to the meanest of his subjects, forthwith to join the gallant and pious bands 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 Pal- estine 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 — known to be vigorous and energetic, but not suspected of enthusiasm, now well stricken in years, who had spent the best part of his life in studying the law and administering justice, who had a wife and many I— 3 l!l,v i / , ■! m 'I I ni 34 REIGN OF RICIfARD I. [1189. children and grandchildren the objects of his tender at- trchment — rose up 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 s icmn occasion. So much in earnest was he, that he wished forthwith to set forward for the Holy Land. From the accu- mulated profits of his office, he was abundantly aMe 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 you \g princes engaged in another unnatural rebellion, and the King laid his commands on the Chief Justiciar to dela^ his journey till tranquillity .should be restored. Bclbrc thib consummation, the unhappy Henry expired at Chmcn of a broken licart. Glanville was pr sent at the scene when, on the ap- proach of Richard, blood jnishcd from the dead body, in token, according to tl;', <• i)erst)tion of the age, that the son had been the nn'rd- rer of the father. The new monarch, now stunj:^- with remorse, renounced all the late companions of his youth who had misled him, and offered to confirm all his father's councillors in their offices. This offer was firmly refused by Glanville, who had serious misrfivings as to the sincerity of Richard, asd who, now wearing the cross, was bound by his vow, as well as incited by his inclination, to set forward for the recovery of Jerusalem. However, he discharged the duties if the office for some weeks, till a successor might be appomted ; and he attended, with the rank of Chief Justiciar, at Richard's coronation — when he exerted him- self to the utmost to restrain the people from the mas- sacte of the Jews, which disgraced that solemnity. Some authors represent that he was deprived of his office at the death of Henry II., and obliged to pay a heavy fine for imputed judicial delinquency; but there is no foundation for the story, beyond his voluntarily contributing a sum of money towards the equipment of the army now embarking for Palestine. He was treated with the greatest favor not only by the new King, but by Eleanor the Queen Mother who had long been his 1 1 90.] RANULFUS IJE GLANVILLE. 35 le le It if a Ire ly lof id it Us prisoner, and who, being now set at libexty, was destined to be Regent of the kingdom.' Richard himself had taken the cross, and was prepar- ing for that glorious expedition in which, by his un- rivaled gallantry, he acquired his appellation of " the Lion-hearted." lie therefore asked Glanville to accom- pany him, and to fight under his banner. But such was the impatience of the Chief Justiciar to tilt with a Sar- acen, that he declined the offer, and joined a band 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 journey ; and we read no more of him, except that in the following year he was killed, fighting val- iantly at the siege of Acre." Of Glanville's numerous offspring, only three daugh- ters survived him. They were married to great nobles ; ' Richaid of Devizes says, " Ranulfus r, says, " Glanville was a judge of this realm a long time ago, for he diod in the time of King Richard I. at the city of Acre; in the borders of Tur>'." Lord Coko merely says, " Provecliori xtate ad Terram Sanctam propera- vit, et ibidem contra inimicos cnicis Christi strenuissime usque ad neceir dimicavit." — Preface to Sth Rep. xviii. Spelman says, " Exutus autem est officio Justitiarii anno I. Ricardi I. el deinde profeetus in Terram Sanctam in obsidione Aeon moriturus est."— • Gloss, p. 33S. This celebrated siege lasted two whole years, and Acre held out till aftei the arrival of Richard I in the summer of 1191, when he performed thf prodigies of valoi which i>iaced him at the head of crusadin;; chivalry. 5 1:1 7 ■J 1 ,1 ; i I 36 REIGN OF RICHARD /. ["53- 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 liv- ing representative, will ever be held in honored remem- brance by Englishmen.' King Richard I., eager to rescue the holy sepulchre from the Infidels, and reckless as to the means he employed to raise supplies for the equipment of his ex- pedition, upon the resigiintion of Ranulfus de Glanville, put up the office of Chief Justiciar to sale, and the high- est bidder was Hugh Pusar, Bishop of Durham. The two extremes of the career of this prclnte were marked by extraordinary profligacy, while during a long interval between them he was much honored for his virtues and his good conduct. Being a nephew of King Stephen, he was brought up in the court of that worthless sovereign, and his morals were depraved even beyond the common licentious standard prevailing there. Nevertheless, tak- ing priest's orders, he was made Archdeacon of Win- chester; and, without any symptom of reformation, was appointed to the bishopric of Durham. If any sort of external decorum was preserved, the lives of churchmen were not strictly scrutinized in those days ; but the arch- deacon had openly and ostentatiously kept a harem in his parsonage-house ; and the Archbishop of York re- fused to consecrate him, — objecting, that he had not reached the canonical age for being made a successor of the apostles ; and reprobating his bad muial character, evidenced by his having three illegitimate sons by as many mothers. The bishop lect complained bitterly of this stretch of authority, and appealed to Rome. While the appeal was pending, both the Pope and the Archbishop died ; and Hugh, backed by royal solicita- tions, induced the new Archbishop to consecrate him, on an expression of penitence and promise of amend- ment. He was as good as his word ; and, turning over a new leaf, he devoted himself to his spiritual duties, and be- came a shining ornament to the episcopate. So he went > See Lord Lyttleton's Hist, of H. II., vol. iii. 135 — ^440. Rot. Cur. R. 6 R. I. Roger de Wendover, iii. 36. Hoveden, ad. an. 1190. I189.J HUGH PUSAR. 37 on steadily for no less than forty years. During this long period he built many churches in his diocese, and he added to his cathedral the beautiful structure called the Galilee, which remains to this day a monument of his taste. So much respected was he by his own order, that he represented the province of York at the Council of Tours in 1163, and at the Council of Latcran in 1179. But, at the moment he was doing penance for his early sins, Godric, a pious hermit, had foretold that, " although he would long see the light very clearly, he was to be afflicted with blindness seven years before his death." His physical vision remained unimpaired till his eyes were finally closed ; but the prophecy was sup- posed to be fulfilled by his foolish and vicious actions during the last seven j'cars of his life. On the death of Henry H., 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. Notwith- standing his princely liberality, he had amassed immense riches, and the highest offices and honors of the state were now venal. At a vast price, he bought from Richard the Chief Justiciarship and the Earldom of Northumberland," not then a mere empty title, but a dignity to which important jurisdictions and emolu- ments were still attached. It is said that the King when giriling him with a sword at his investiture, could not refrain from a jest upon his own cleverness in con- verting an old bishop into a young earl. Very soon afterwards he was installed in the Aula Regis. Al- though he had a slight tincture of the civil and canon law, he was utterly ignorant of our municipal institu- tions. But he showed that all he cared for was to reim- burse himself for his great outlay, and he was guilty of rapine and extortion exceeding any thing practiced by any of his predecessors. Richard, whose departure from Palestine had been delayed longer than was expected, heard of these enor- mities, and declared that, as a check upon the Bishop of Durham, William Longchamp, the Chancellor, mure be associated with him in the ofilce of Chief Justiciar. Pusar, having in vain remonstrated, came to the com- promise that England should be divided between the .<■ ! IT'' II 1 h i' k ill I 11 i I •' I! . I •nil: !! (' ss REIGN OF RICHARD f. [1191. two Justiciars, and that all the counties north of the Trent should be left at his mercy. He now tried to levy upon this poor moiety the revenue he had ex- pected to draw from thu whole kin;.f(lom ; but at last made himself so odious, that Lonj^champ marched a small military force to tlie 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 ^ave hostagjs to deliver up all the castles committed to his change. lie appealed to Richard, now performintT prodigies of valor in the East; and that monarch wishing, or pretending to wish, to do him justice, sent letters ortlering him to be restored: but these were entirely disregarded by Longchamp. The cx-Chicf Justiciar died unredressed and unpitied, affording (as it was said) a fine illustration of the text of Scripture, *' No man can serve (jod and Mammon.'" William Longchamp, who, uniting in himself the offices of Lord Chancellor and Chief Justiciar, ruled England during the absence of Richanl in Palestine and his captivity in Germany, is one of the most interesting characters to be found in mediaeval history; but I have already published whatever I have been able to collect respecting his extraordinary career.' After his fall, Walter Hubert, who, from being a poor boy, educated out of charity by Ranulfus de Glan- ville, had reached the dignity of Archbishop of Canter- bury, had the secular office of Chief Justiciar likewise bestowed upon him. From the rolls of the Curia Regis still extant,' and from contemporary chroniclers, I am enabled to give an account of the manner in which Hubert, while Chief Justiciar, dealt with a demagogue, who fur some time ' " Ranulphus de Glanvilla Regni Procurator, cum jam grandxvus esset et videret a Re{je novitio multa minus consulte et improvide actitari, solemniter rcnunciars ofiicio, Dunelmcnscm Episcopum habuit successorein, qui nee obluctans injuntliim a Rege suscejnt officium ; sed si proprio fuisset contentus officio, divini juris multo deccntius quam human! Minister exfitis- set, cum nemo possit utrique prout dignum est deservir<\ secundum illud Dominieum, Non potestis Deo servire et Mammona." — Chron. Walt. Hem. ch. 43. Sec God. Prxs. 753. Rn;;or dc Wendover, ii. -'98.; cxi. 8 — 15. * Lives of Chancellors, vol. i. ch. v, • The Rolls of the Curia Regis held before the Chit Justic iar, from the 6 Richard I. 1194, have been published by the Record Commibi^ioners. Sir >«9J-1 WALTER HL^£RT, 1% i»nvo |:]jrcat disturbance to his fjovernmcnt. William Fitz-Osbcrt, a citizen of London, bcinjij bred to the hnv, is denominated " legis pcritns," althoupfh he pos- sessed but a very small portion of learning; he was of a lively wit, and surpassinj^ (eloquence; and he is the earliest instance recorded in ICn mean, he endeavored to give importance to his looks by nourishing his beard, contrary to the custom of the Normans. Hence he was ijenerally called "IVi/Zjam- ivith-thc-longc-bcrdcy Although of Norman descent, he pretended to take part with the Anglo-Saxons, and to be tlieir advocate. The dominant race settled in Lon- don had a town of their own, " Ealdormannabyrig," still known as the Alukrmandury ; while the rest of the city was inhabited by the oppressed natives. Long- beard first distinguished himself by speaking at the Folk- motes, which were still allowed to be held for laying on assessments, althoii'^h not to assist in making laws as in former times. Not succeeding so well as he expected in obtaining the applause of the mob, he suddenly be- came a great courtier, and tried to gain the favor of Coeur de Lion by pretending that he had discovered a treasonable plot, into which his elder brother, Richard 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 me by the Chancellor within the Tower of London, 1 would l.i\- out fortv 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 Francis Palgrave, in his introduction to them, says, in very striking Ian.- guage, — " Comparing tliese - ecortls with the commentary furnished by the Year Books, and, lastly, opening the volumes of the reporters properly st> called, we could — if human life were adequate to such a task — exhibit what the world cannot elsewhere sliow, the judicial system of a great and power- ful nation running parallel in development with the social advancement ol the people whom that system ruled." The rolls of the Curia Regis are not KO intiresting as might have been expected, as they for the most part merely state the names of the parties, the nature of the action, the plea, and the judgment. k 40 REIGN OF RICHARD /. [1193. \i k !' our mayor, Henry Fit/-Ail\vln, of London Stone." The appellee pleaded not guilty ; and, availing himself of his privilej^c as a citizen of Lomlon to defend him- self by compurgation, many respectable persons came forward to attest tlieir belief in his innoc held many manors. His military talents were likewise distinguished. The contemporary chroniclers inform ul that, as soon as he was appointed " Proto-Justiciariuo Angliae," he led a powerful army against the Welsh and entirely defeated the restless Gwenwynwyn, who had besieged the English garrison placed by William dc Brause in Maud's Castle. Three thousand seven hun- dred of the enemy are said to have been killed in the conflict, and the single Englishman who fell is said tc have been killed by the erring shaft of a follow soldier.' On the death of Richard I., Fitzpeter was continued in his office of Chief Justiciar by John, and was very active in executing the measures of the government, as well as in the administration of justice. "At the same time he appears to have joined in the King's amuse- ments, as a payment of five shillings was made to him, ad ludum suum. In 1 1 John there is a curious entry on the Great Roll 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 ta. te, if we may judge from his having purchased one from the King at the extravagant price of four tunels of wine."* Withal he must have been a bon vivant, for we are told that he paid a penalty for breaking the canons of the Church by eating flesh on fast days.* However, neither by the great nor the agreeable quali- ties which he possessed could he long retain the favor of • On this account he was exempted from the payment of scutage and other assessments, and in the entry recording the fact he is inscribed as " resident at the Exchequer." — Mad. Exch. ii. 390. n. • Hoveden, 780, 781. Gervasius, 164, 165. R. de Diceto, 703. • Foss's Judges of England, vol. ii. 64., cites i Rot. de Praest. 7 John. Cole's Documents, 272, 275. Mad. Exch, i. 462. Rot. de Fin. 6 John, 243. • Rot. Misse. 14 John. Cole's Do.- 248. 1202.] GEOFFRE Y FI TZPE TFR. 4i the capricious tyrant on the throne : and, having in vail remonstrated against the course of policy which pro duced such disasters, he resigned his office. Till thi: year 121 3 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 suc- cess in restoring order and the due administration o\ justice, and every one was delighted except the infatu- ated John, who grieved to see himself crossed in his love of tyranny. Unhappily, this able Chief Justiciai died suddenly in the following year. When the Kin^ heard of his death, he laughed loudly, and said, with a profane oath, " Now I am again King and Lord of Eng- land !"• 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. But, after his decease, England resembled a ship tossed about in a storm without a rudder.'" Shakspeare, in his drama of King John, introduces this Chief Justiciar as one of the dramatis persoHce, and gives us a trial before the AULA REGIS, the King himself being present in person. This was what the lawyers call a " legitimacy case'' the action being brought to recover the large estates, in Northamptonshire, of the late Sir Robert Fauconbridge, Knt., which were claimed by the plaintiff, as his son and true heir, on the ground that an elder brother who had got possession of them was the son of Richard Coeur de Lion. The trial is represented as having been conducted with great fairness ; for the ' " Accepto verd de morte ejus nuncio, Rek cachinnando dixit : ' Per pedes Domini, nunc primdsum Rex et Dominus Anglise.' " — M.par.in.ann. 1214. * " Erat autem firmissima Regni columna ; utpote vir generosus, legum p jritus, thesauris, reditibus et omnibus bonis instauratus, omnibus Angliae Magnatibus sanguine vel amicitia confoederatus. Unde Rex ipsiim prae omnibus mortalibus sine delectione fomiidabit : ipse e; im lora rogni iMiher- nabat. Unde post ejus obitum, facta est Anglia quasi in tcmpesuite navit line guberaacufo." — M. Paris. ;; 44 REIGN OF KING JOHN. [1213. \ ■ 'I doctrine was admitted, " Pater est quern nuptiae demon- strant," subject to the exception of the absence of the husband extra qiiatuor viaria, 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 Fau- conbridge 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 Fitzpeter, judgment was given for the plaintiff; while the defendant, kneeling before the King, rose SiR RICH- ARD Plantagenet.' In right of his wife, this chief of the law became Earl of Essex ; and the earldom was enjoyed by his descend- ants till 1646, when it became extinct: by the death of Robert Devereux, Earl of Essex, the great parliametary general, without issue.' John's intervening Chief Justiciars, Simon de Patc- shull, Eustace de Fauconberg, Richard de Mucegos, Wal- ter de Crespiny, and Sahcrus, Earl of Winchester, did not gain much celebrity either by the administration of the law or by their military exploits. When Fitzpeter died he was succeeded by Peter DE RUPIBUS,' who seems to have enjoyed great admiration in his own time, although he has not been much known by posterity. He was a native of Poictou, and distinguished himself as a stout soldier in the wars of Richard L, 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 Bishop of Winchester, and afterwards Chief Justiciar.* His ' King yohn. Act I., Scene I. This scene corroborates the supposition that Shakspeare, either before he left Stratford or on his coming to London, nad been employed in an attorney's office. He is uniformly right in his law and in his use of legal phraseology, which no mere quickness of intu- ition can account for. • Dug. Bar. i. 703. See Roger de Wendover, cxi. 49 — 273. • Sometimes called "Des Roches" • This commission is still extant : " Rex Archiepiscopis, &c., Const! uimu I22I.J PETER DE R UP IB US. 45 [IS elevation caused much envy, which he was at no pains to soften ; and on this occasion he remained but a short time in office, althousrh he showed vigor and ability.' His great rival was Hubert de Burgh, who contrived within a year after his elevation to supersede him, and to hold the office of Chief Justiciar until the death of King John. Peter de Rupibus, however, was again in favor at the commencement of the next reign, and was appointed tutor to the infant Sovereign, who became very much attached to him. He was employed at the coronation to consecrate his royal pupil ; and, being restored to his office of Chief Justiciar, he was first minister as well ar supreme judge. However, he increased the ill will which prevailed against him by advising the resumption of grants of the domain and revenues of the Crown which the King, with a boyish levity, had lavished upon liis courtiers ; and he made himself still more unpopular by betraying such a partiality for his countrymen, the Poictevans, that they engrossed almost every place of honor or profit. About this time sprung up in Eng- land that jealousy of foreigners, and that disposition to despise them, which have ever since actuated the great mass of our countrymen. The Normans had been highly popular at the Court of the later Anglo-Saxon Kings. Having conquered the country, they long re- garded all of Anglo-Saxon blood as helots, while they treated Frenchmen and Italians who came here in quest of preferments as equals. But, after the lo?s of tl • Con- tinental possessions which had belonged to the Kings of England, our nobles of Norman extraction began to consider themselves as Englishmen, and there was a rapid fusion of the two races into one nation. The in- tercourse of the inhabitants of this island wiih the Con- tinent was very much lessened, and the prejudices as well as the virtues of islanders gathered strength among them from generation to generation. Peter de Rupibus excluded all who were born in England from cmploy- Justitiarium nostrum Anglice P. Winton. Episcopum quamdiu nobis pla- cuerit ad custodiendum loco nostro terrain nostram Angliue et pacem regni nostri. Ideo vobis mandamus quod ei tanquam Justic. nostro Angliae intendentes sitis et respoiidentes. Dat." &c. ' Diu non duravit in od'icio : prudens autem et potens."— .^^/. Gloss, 340 ll i 3 r ■ -3 i !;• 11^ 1' ^ !• 46 REIGN OF HENRY III. [1231. ment, and treated them with contumely, after the fashion of the Justiciars of the Conqueror and his sons. By preferring a foreigner to a piece of ecclesiastical prefer- ment which was coveted by the famous Roger IBacon, then one of the King's chaplains, he incurred the en- mity of that philosopher, who took every opportunity, both in his sermons and in private conversation, to set the King against him. It is related that on one occa- sion Roger asked Henry " What things a prudent pilot in steering a ship was most afraid of?" and Henry an- swering that ** Roger himself ought best to know, as he haci himself niade many voyages to distant parts," Roger replied, " Sii, he who steers a trireme, and he who steers the vesse' of the state, should, above all things, beware of st(i)i.cs and rocks, or ' Petrae et Rupes.'" Hubert de Burgh, his old rival, took advantage of the combination against the favorite, and contrived again to turn him out from the place of Chief Justiciar, and to become his suc- cessor. Peter de Rupibus, now yielding to the passion of the age, took the cross, and found no difficulty in obtaining a dispensation to bear arms in so pious a cause, although wearing a mitre. He is said to have fought valiantly in Palestine, but we have no particulars of his single com- bats, or the numbers he killed in the general melde.^ After an absence of several years he 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 country- men. " Naturales," says M. Paris, "curiae suae ministros a suis removit officiis, et Pictavenses extraneos in eorum ministeriis surrogavit." He even carried his insolence so far as to declare publicly that " the Barons of Eng- land must not pretend to put themselves on the same footing with those of France, or assume the same rights and privileges."* The consequence was, that the Eng- lish Bishops combined against him with the English Barons, and a law was passed, to which the King most ' Spelman who had examined all the chronicles, is obliged to say in grin- tral terms, " Exacto munere Terram Sanctam cruce-signatus proficis^itnr. &lulta illit ejus auspiciis gesta sunt feliciter." — Gloss, p. 346. • M. Paris, 265. Ill 1238.] HUBERT DE BURGH. 47 jnwillingly gave the royal assent, " That all loreigners 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 the crown on another head more worthy to wear it.'" Peter made a stout resistence, but, owing to the jealousy of his spiritual brethren, he was excommuni- cated and obliged to fly. He went to Rome to appeal against the injustice which had been done him. Here his military prowess stood him in good stead. Finding 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 absolved 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 odor of sanctity, he died, in his epis- copal 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 with- out 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 contem- poraries, 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 BURGH had the advantage of being born in England, although, like all the nobility of the time, he was of foreign extraction. William Fitz- adeline, 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 represented by my friend the present Marquess of Clanricarde. Hubert, afterwards the famous Justiciar, was early left an orphan, and was very slenderly provide^j ' M. Paris, 265. M i fini; m ' I 48 REIGN OF HENRY III. [1238. for, but he received from nature the highest gifts, both of person and understanding, and, through the care of his maternal relations, he was carefully educated, not only in all martial exercises but in all the learning of the age. He gained some distinction by serving in the army under Richard I., towards the conclusion of the reign of that monarch ;' and, on the accession of King John, he was sufficiently prominent at court to be one of the pledges that the convention of the new Sover- eign with Reginald, Earl of Boulogne, should be faith- fully observed.' Soon after, he was made Lord Cham- ber'. iiii ; and now it is that Shakspeare assigns to him the custody of Arthur, the son of Geoffrey. It is not easy to discover the view taken by our im- mor'-al dramatist of the character of Hubert de Burgh, whom he represents with a very tender heart, but who ..> »aade to say, when solicited to rid the usurper of the ■serpent in his way," "He shall not live;" and who, de'il - itely and seriously makes preparations for put- ting out the poor young Prince's eyes with hot irons.' 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 en- joyed the favor of this capricious tyrant, and was con- stituted by him Warden of the Marches of Wales, Governor of the Castle of Dover, and Seneschal of Poic- tou. 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, ' One of the earliest notices of him in our records is, that he was surety to the Crown for Petnis de Maillai, who acjroed to pay 7000 marks, "pro habcnda in uxorem YsabeUam filiam Roberti de Turncham cum jure suo," &c. — Mad. Exch. ii. 21 r. * Rot. Chart, i John, 30 — 36. * Hubert exclaims aside, and therefore sincerely — " Tf I talk to him, with his innocent prate He will awake my mercy, which lies dead : Therefore I will be sudden, and despatch " And, after the fit of compassTon had conquered him, he thus addresses the Prince:— " Well, see to live : I will not touch thine eyes For all the treasure that thine uncle owes : Yet am I sworn, and I did purpose, boy. With this same very iron to burn them out." King yohn, act iv. tc. i. I22I.J nUBKRr DK B UK Gil. 49 he condescended to act as Sheriff of several English counties, bcin^ responsible for the preservation of the peace, and for the due collection of the royal revenues within them. In the controversies which arose between John and the l^arons, HubcMt remained faithful to his master, but pjavc him good advice, and tried to instil into him some rop;artl for truth and pli^^hted faith. Beings present with him Jit Runnymedc, he prevailed upon him to s'v^n tlie (jrcat Charter, and he afterwards sincerely lamented the violation of its provisions. Thou'ifh 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 office of Chief Justiciar, the darling object of his am- bition. Me professed much fricndshii) for Peter dc Rupihus, 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 labored. Me was now appointed Chief Justiciar, but had little enjoyment in his elevation. The kingdom was in a state of distraction from internal dis- cord, and its independence was threatened by the inva- sion of a French army. He gallantly defended Dover Castle against Prince Louis, and gained a considerable victory over a French fleet in the Channel. The ad- ministration of justice, however, was long entirely sus- pended, insomuch that Hubert had never been installed in the Aui.A Rkc.is, when his functions were determined by the King's miserable d6ath in the Castle of Newark. For the first three years of the new reign, the office of Chief Justiciar was superseded by the appointment of the Earl of Pembroke, the Earl ]\Iarshal, as Protector of the realm, with absolute power. On the death of that nobleman, Hubert was restored to the office of Chief Justiciar, and there was an apparent reconciliation be- tween him and Peter dc Rupibus, who was intrusted with the education of the young king.' The wily Poic- tevan, availing himself of his influence over the mind of his pupil, by and by had his revenge, and, once more Chief Justiciar, he engrossed all the powers of the 'M. Taris, 247-251. Waverley, 183. Gul. Armor, 90. 1—4. so REIGN OF IIENR Y III. [1224. ' ifii Crown, Hubert retired from Court, and prudently " bided his time." Perceiving the odium into which his rival had fallen, he 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.' For some years Hubert exercised despotic sway in England. He was created Earl of Kent, and, in the vain hope of perpetuating his power, he obtained a grant for life of the office of Chief Justiciar, which hitherto had always been held during pleasure. More- over, he usurped a similar appointment to the Chief Justiciarship of Ireland. When without a rival, it is admitted that he conducted himself honorably as well as prudently. He displayed ' Dr. Lingard gives, from the contempor.iry chronicle!:, the following graphic account of " an event which estaljlisiied the authority of Hulicrt, and induced his rival to banish himself from the island uiuUi' pretense of making a i)ilgrimage. Among the foreii^ncrs enriched by Johi', was a fero- cious and sanguinary rufiian named FawUcs, who held the castie of Bedford by the donation of that monarch. At the assizes at Dunstable, he liad been amerced for sever.T.1 misdemeanors in the sum of ^jtwo ; but, instead of submitting to the sentence, he waylaid the judges at their departure, and, seizing one of them, Henry de Brinbrook, confined liim in the dungeon of the castle. Hubert willingly grasped the opportunity of wreaking his ven- geance on a partisan of the Bishop of Winchester. The King was induced to invest in person the fortress of this audacious rebel ; and the clergy spon- taneously granted him an aid from themselves and tiieir free tenants. Two tower^ of wood were raised to such a height as to give the archers a full view of the interior of the castle ; seven military engines battered the walls with large stones from morning till evening ; and a machine termed a cat, covered the sappers in their attempts to undermine the foundat'oiis. Fawkes, who had retired into the county of Chester, had persuaded him- self that the garrison would be able to defend the castle for twelve months. But 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 |)os- session of the inner ward; a few days later the sappers set fire to the props which they had placed under the foundations of the keep ; one of the angles sank deep into the ground, and a wide rent laid open the interior of the fortress. The garrison now despaired of success. They planted the royal standard on thp tower, and sent the women to implore the King's mercy. But Hubert resolved to deter men from similar excesses by the sevi'rity of the punishment. The knights and others to the number of eighty were hanged ; the archers were sent to Palestine to fight against the Turks ; and Fawkes, who now surrendered himself at Coventry, was banished from ths island, together with his wife and family." — !>'?'' M Psu-is -270 Dun&t. I42< 145. New Rym. 175. Rot. Claus. 639. Annai. Wig. 48^, 1232.1 HUBERT BE BURGH. 51 a knowledge of the kiw, and a zeal to do justice to all suitors who came before him, for which he had not hitherto had credit ; wiiilc he preserved trancjuillity 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 militia gessit.'" The only grave act of misgovernment imputed to him was the annulling of the ClIAUTER OF THE FOREST,— a concession which was most reasonable, and which had been passionately claimed both by the nobility and the pcoplj.' However, Hume doubts whether this act was done by his advice, characterizing him as " a man who had been steady to the Crown in the most difficult and dangerous times, and who yet showed no disposition in the height of his power to enslave or oppress the peo- ple."* But, while others were obliged to surrender valuable possessions which they held untler royal letters patent, he was annually enriched by new grants of forfeitures, escheats and wardships ; and those whom he disobliged declared that he was guilty of much greater rapacity than his banished rival, or any of his predecessors. 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 Welch..* An unsuccessful expedition into France, in which he ac- companied the King, inflamed the public discontent, and precipitated his fall. It so happened that at this very time Peter de Rupibus returned to England from Palestine, having been pre- ceded by exciting reports of the gallantry and devotion 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 ' M. Paris, ad ann, 1232. But though very scrupulous while sittiny; on the bench, he was, like other Justiciars, always ready to ex -rcise a vigor beyond the law when in llie field. In the 15th year of Henry HI., hearing that the Welsh liad committed great outrages, especially about Mor.'.gomcry, he marched thither, and, having taken many prisoners, he struck oil their heads and sent them to the King ; which so provoked Lewdlyn, Prince of Wales, that raising all the power he could, he retaliated on the English, setting tire even to the churches, in which crowds who had taken sanctuary were burned. ' M. Paris, p. 232. * Hist, of Eng. ii. 159. * Roger de Wendover, iv. 173. 5« REIGN OF llEXRY //A [i23» I "1 \\ the obnoxious minister. ^^\- tlic subtK: advice of his enemies, instead of any viol> ;icc bcinj; offered to him, a great council was called, aad an order was made upon him to answer for all the wardships which he had held, all the rents of the royal demesnes which he had re- ceived, and all the aids and fines which had been paid into the Exchequer while he fdled the office of Chief Justiciar. Seeing that his ruin was determined upon, he took to sanctuary in the priory of Merton. Ijeini; immediately removed from his office of Chief Justiciar, he asserted that he held the appointment for 11 to, by a grant under the Great Seal ; but he was told that the patent was illegal and void ; and Stephen de Scp^ravc was ai>pointed his successor, at the instigation of I'eter de Rupibus, who at present preferred the enjoyment of power without the envy of office. Proclamation was now made throurT;h the City of Lon- don by a herald tliat "all manner of persons who had any charge a<;(ainst the ex-Chief Justiciar were to come forth, and they should be heard." lie was not only ac- cused of treason to the King in the negotiations he had carried on, but of poisoning some of the nobility, of ab- stracting from the royr.l treasury a gem which had the virtue of rendering th.: v/i'srer invulnerable, and of gain- ing the king's favor by orcery and enchantment. It was first r\solv:i lo ;;rag 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 warned by the Archbishop of Dub- lin 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. Hubert, finding himself no longer watched, left his sanctuary and pro- ceeded 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. Un- moved by the sanctity of the scene which they beheld, I232.J HUBERT DF. HURG:! S3 they seized him, placed him on horscli.'ick, tied his feet under the horse's belly, and proceeded with their cap- tive towards the metropolis amidst the derisive shouts of 1' : populace. The Bishop of Winchester, cither re- spcciini,' the privili.;^,'es of the Church, or afraid of excit- ing sjmpathy in favor of a depressed rival, caused orders to be given that the prisoner should be replaced on the steps of the altar from which he had bctMi taken ; and the Sheriff of Essex was charged under penalty of death to prevent his escape. Tt) render th'- »' ipracticable, a deep moat was diig round the sacre ng in which he was confracd, and o\\ the fortieth r or des- pair compelled him to surrender hin or a short confinement in the Tower, he was before a council of his peers assembled in Cornhill, i he accusa- tions acainst him bein"; read, he declared that he should make no defense, and that he placed his body and his lands ;in(l goods at the Kin;fr. pleasure. Sentenc; was passed, whereby, being allov.ed to retain his patrimonial inheritance and the lands he had gained by marriage, he was to forfeit all the rest of his property to the Crown, and WIS to be kept in saie custody in the Castle of Devi/. ; till he should enter the order of the Knights Templars. The follovv'ing year he was dreadfully alarmed by the news that the custody of this castle ha Bristol, Corff, and Shircburn, and manacled all tlie affair? of the KintT ol the Romans. He had a very uneasy place as Chief Justiciar, but there was an interval while he enjoyed the title when he actually was allowed to perform the duties of the office, and during a short ab- sence of the King in Gascony, he acted as Regent of the kingdom.' The royal cause declining, 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 been taken to reform it, and, till this object should be fully accomplished, the more pru- dent 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 favor. He was one of those appointed to carry into execution the " Dictum of Kenilworth," and he continued a member of the King's Council till his death. This must have happened in the autumn of 1271 ; for in the Fine Roll, under date 2d November, 56 Henry IH., there is an entry of an order for the Constable of the castle of Devizes to give it up to Elyas de Rabeyn, " 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 Despencer 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.* ' Still he went through the routine business of his office, and all the man* dates on the Fine Roll are signed by him. — Rot. Fin. ii. 278-385. * Dugdalc says, " Of those who had the office of Justiciarius Angliae, Philip Basset was the last, the King's Bench and Common Pleas having afterwards one in each court." — Or. yur. p. 20 : ami see Spel. Gloss, p. 342 6j A'E/GAT OF HENRV 2a1. [1.C5 — I wish that I could have been justified in concludin;^ the list of Chief Justiciars with Simon de Montfort hiir.- self ; a life of him mi^ht be made most interesting and instructive, for not only did he achieve wonderful adven- tures by political intrigue and by military skill, and meet with striking vicissitudes of fortune, but he is to bo honored as the founder of a representative system i)f government in this country, and the chief framer of that combination of democracy with monarchy and aristoc- racy which has served as a model for all modern nations among whom freedom has flourished. I might make a pretense for an attempt to narrate his exploits and de- lineate his character, for he has been introduced among the Chief Justiciars; and three records are quoted, bear- ing date respectively lOth May, 7th June, and 8th June, 1265, in which the Earl of Leicester is styled " Justici- arius," which, possibly, might mean " Justiciarius Anglia2," the title by which Bigod, Le Despcncer, and Basset were sometimes designated when they undoubt- edly 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 acted 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 dependent. When he called his famous parliament, with representatives from counties and bor- oughs to mingle in legislation with the hereditary nobil- ity, he might easily have assumed the office of Chief Justiciar if he had been so inclined ; but, on the con- trary, he seems, with other constitutional improvements, to have meditated its abolition or reform, and there is great reason to belir ethat he suggested the new judicial system which was f 'y adopted and established in the succeeding reign, ana ander which justice is administered at this day in England.' After the Barons had been effectually crushed, a partial trial of this system was made during the remainder of the life of the feeble Henry, with the sanction of his ' Spelman, 343 ; Brady's England, i. 650, 651 ; Rot. Fin. ii. 405 ; Leland'a CoU. ii. 378 ; Lives of Chancellors, i. ch. ix. 1368.] HENRY DE BR AC TON. (>l energetic son, who, before setting forth for Palestine, established a wise system of administration — a foretaste of his own happy reign. From the confusion introduced by the Barons' wars, and the consequent defective state of our records at that era, a doubt has been started whether the office of Chief Justiciar was filled up be- tween the death of Hugh le Despcncer, in August, 1265, and March, 1268, when Robert de Bruswas appointed to it. There is, however, strong reason to believe that in this interval it was held by Henry de Bracton, one of the greatest jurists who ever lived in any age or any country. He was, undoubtedly, a Justiciar at this time : in the commissions in which his name is mentioned no one had precedence of him ; and we have the author- ity of Lord Ellesmere and others, who have carefully investigated the subject, for concluding that he was Chisf Ji;sticiar. 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 civilization introduced by the Normans seemed to be entirely obliterated, and when the amalgamation 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 Con- quest, and a minute account of the military exploits of those who were employed in desolating the world, we have no information whatever of the origin, and very little of the career, of a man who explained to his savage countrymen the benefits to be derived from an equitable system of laws defining and protecting the rights of every class of the community, — who, drawing his senti- ments from the rich fountain of Roman jurisprudence, expressed them in the Latin tongue with a purity seldom reached by the imitators of the Augustan age, and who was rivaled by no English juridicial writer till Black- stone arose five centuries afterwards. He is said, on uncertain authority, to have studied at Oxford, and there 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 minor- ity of the heir, he is designated " dilectus clcricus \ I «4 REIGN OF IlENR Y ///. [laso. no&ter." lie is supposed to have practiced in the com- mon law courts of We.'Jtminster, and he certainly must have had great practical experience in juridical pro- cedure, 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 compatible with his continuing to practice as a barrister during the terms, and his name does not appear in the Fine Rolls till four years later. He then certainly was a Justiciar or Judge of the Aula Regis, 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 Rolls then ceases, and we certainly know that another Chief Justiciar was ap- pointed in the beginning of 1268. We have no infor- mation respecting his descendants, although the greatest hobles in England might have been proud to trace him in their line. His memory will be preserved as long as the law of England, by his work, " Do Legibus et Consuetudinibus Angli:v." It must have been finished just about the time when he is supposed to have been Chief Justiciar, for it contains references to changes in the law intro- duced shortly before, and it takes no notice of the stat- ute of Marlbridgc, which passed in the 52nd year of Henry HI. The chief defect imputed to the work is its frequent introduction of the Roman civil law; but this will be found to be by way of illustration, not as author- ity ; and there seems great reason to regret that the pre- judices of English lawyers in all ages have inclined them to confine their attention almost exclusively to the tech- nicalities of their own peculiar code, — ever mo'^e dis- tinguished for precision than for enlarged principles. The work we are considering certainly gives a complete ' He is sometimes named Bratton, and sometimes Bretton, in the Rolls 1 bnt these are distinctly proved to be the identical Henry de Bracton of whom we are treating. ia68.] ROBERT DE BR US. 65 view of the municipal kiw of England in all its titles as it stood when the author wrote ; and for systematic ar- rangement, for perspicuity, and for nervousness, it can- not be too much admired.' I now come to a "ClIIKl" who, we certainly know by existing records, was appointed '• CaI'ITATIS JUsriCIAK- TUS AD TLACITA COUAM RK(JK TENKNDA," the modem desiifnation of the presiding Jutl^o in the Court of Kinj;'s Hench ; and he is placed by Dugdale at the head of the new list, who have exercised merely judicial func- tions. However, there had been no law passed by the Legislature since MAflN'A ClIAR'i'A to change our judicial system ; and, although a separ.ite tribunal now existed for civil suits, there is reason to think that the AULA Rl'Xils continut:d till the accession of Edward I. without any farther statutable alteration, there being merely an undcrsf (vu/ i iij^ i\\-^t the person who presided in it was no longer to interfere in military affairs or in the govern- ment of the kingdom, whether the sovereign was at liomc or abroad. The choice made of a Chief, who was to be. like Brac- ton, a mere civilian, seems a curious one ; for, instead of a lawyer, born in obscurity, who had pushed himself into notice by success in his profession, he was the head of a great Norman baronial house; he had in his veins the blood of the Kings of Scotland ; be enjoyed large possessions in that kingdom ; he was in the succrssion to a throne ; he actually became a competitor for it ; his grandson, after giving the English the severest defeat they ever sustained, swayed tiie sceptre with glory and felicity; and our gracious Queen, Victoria, in tracing her line to the Conqueror, and to Cerdic, counts this Chief Justiciar among her ancestors. Robert de Brus, or Bruis, (in modern times spelt Bruce,) was one of the companions of the Conqueror; and having particularly distinguished himself in the battle of Hastings, his prowess was rewarded with no fewer than ninety-four lordships, of which Skclton, in Yorkshire, was the principal. The Norman knights, having conquered England by the sword, in the course ' See Reeves's Hist, of Eng. Law, ii. 86, 281 ; Liv"s of Chancellon, L ch. Ix ; 2. St. Tr. 693 ; Rot. CI. ii. 77 ; Rot. Fin. 82—458 m h;; 1 •! m : \; j ; e|i rHi ^^ K i »>; i M l4 1 1 f^^ t 1 Kf «# li" ' 'a ' ' i 66 JZEIGN OF IIl^X/^ y III. of a few generations got possession of a great part of Scotland by marriage. They were far more refined and accomplished than the Caledonian thanes ; and, flocking to the court of the Scottish Kings, where they made themselves agreeable by their skill in the tourna- ment, and in singing romances, they softened the hearts and won the hands of all the heiresses. Hence the Scottish nobility arc almost all of Norman extraction • and most of the great families in that kingdom arc to be traced to the union of a Celtic heiress with a Nor- man knight. Robert, the son of the first Robert dc Brus, whom we have commemorated, having married early, and had a son, Adam, who continued the line of De Brus, of Skelton, became a widower while still a young man, and, to assuage his grief, paid a visit to Alexander I., then King of Scots, who was keeping his court at Stirling. There the beautiful heiress of the immen?:e lordship of Annandale, one of the most con- siderable fiefs held of the Crown, fell in love with him ; and in due time he led her to the altar. A Scottish branch of the family of De Brus was thus founded under the designation of Lords of Annandale. The fourth in succession was '* Robert the Noble," and he raised the family to much greater consequence by a royal alliance, for he married Isabel, the second daugh- ter of Prince David, Earl of Huntingdon, grandson of David I., sometimes called St. David, and said to have been " a sore saint to the Crown," from the number of monasteries he had endowed from the royal domains.' Robert De Brus, the subject of this sketch, was their eldest son. From the time of William the Conqueror and Mal- colm Canmore, until the desolating wars occasioned by the dispute respecting the right of succession to the Scottish crown, England and Scotland were almost per- petually at peace ; and there was a most familiar and friendly intercourse between the two kingdoms, inso- much that nobles often held possessions in both, and not unfrequently passed from the service of the one government into that of the other. Thus we account ' Four of these are within a few miles from the spot where I am HOW writing — Jedburgh, Melrose, Dryburgh, and Kelso. \ 1424.] ROBERT DE BRUS. 67 for Ihe exact uniformity of the laws of the two nations, which is so great that Scottish antiquaries have con- tended that their code, entitled " Regiam Majestatem," was copied by the English ; although there can be no reasonable doubt that the northern and more barbarous people were the borrowers. Our Robert, son of " Robert the Noble" and the Scot- tish Princess, was born at the Castle of Lockmaben, about the year 1224. The Skelton branch of the family still flourished, although it became extinct in the next gen- eration by the death, without issue male, of Peter de Brus, the eighth in descent from Robert who fought at Hastings. At this time a close intercourse was kept up between ** Robert the Noble " and his Yorkshire cousins ; and he sent his heir to be educated in the south under theij auspices. It is supposed that the youth studied at Oxford ; but this fact does not rc-t on any certain authority. In 1245, his father died, t;;id he succeeded to the lordship of Annandale. One would have ex- pected that he would now have settled on his feudal principality, exercising the rights of fiirca ct fossa, or " pit and gallows," which he possessed without any limit over his vassals ; but by his English education he had become quite an Englishman, and, paying only very rare visits to Annandale, he sought preferment at the court of Henry III. What surprises us still more is, that he took to the gown, not to the sword ; and instead of be- ing a great warrior, like his forefathers and his descend- ants, his ambition seems to have been to acquire the reputation of a great lav/yer. There can be little doubt that he practiced as an advocate in Westminster Hall from 1245 till 1250. In the latter year, we certainly know that he took his seat on the bench as a Puisne Judge, or Justiciar; and, from thence till 1263, extant records prove that payments were made for assizes to be taken before him, — that he acted with other Justiciars in the levying of fines, — and that he went circuits as senior judge of assize. In the 46th year of Henry III. he had a grant of £/^o a year salary, which one would have supposed could not have been a great object to the Lord of Annandale. In the Barons' wars, he was always true to the King ; and although he had no taste for the 68 REIGN OF HENRY III. [i-'72. f . 1 military art, he accompanied his royal master into the field, and was taken prisoner with him at the battle of Lewes. The royal authority being re-established by the vic- tory at Evesham, he resumed his functions as a Puisne Judge ; and for two years more there are entries proving that he continued to act in that capacity. At last, on the 8th of March, 126S, 52 Henry III., he was appointed " Capitalis Justiciarius ad placita coram Rege tencnda." Unless his fees or presents were very high, he must have found the reward of his labors in his judicial dignity, for his salriry was very small. Hugh Ligod and Hugh le Despencer had received 1000 marks a year " ad sc sus- tentandum in officio Capitalis Justitiarii Angliae," but Chief Justice de Brus was reduced to 100 marks a year. Such delight did he take in playing the Judge, that he quietly submitted both to loss of power and loss of profit. He remained Chief Justice till the conclusion of this reign, a period of four years and a half, during which he alternately went circuits and presided in Westminster Hall. None of his decisions have come down to us, and we are very imperfectly informed respecting the nature of the cases which came before him. The boundaries of jurisdiction between the Parliament, the Aula Regis, and the rising tribunal afterwards called the Court of King's Bench, seem to have been then very much un- defined. On the demise of the Crown, Robert de Brus was de- sirous of being re-appointed ; but it was resolved to fill the office with a regularly trained lawyer, and there is reason to fear that he was not much better qualified for it than the military chiefs who had presided in the Aula Regis before the common law of England was considered a science. He was so much mortified by being passed over, that he resolved to renounce Eng- land forever ; and he would not even wait to pay his duty to Edward I., now returning from the holy wars. The ex-Chief Justice posted off for his native country, and established himself in his castle of Lochmaben, where he amused himself by sitting in person in his court baron, and where all that he laid down was, no i J9I.J EGBERT DE BR US. Cy i : doubt, heard with rev-.; ice, however lightly his law might have been dealt \v.th in Westminster Hall. Oc- casionally, he paid visits to the court of his kinsman, Alexander III., but he does not appear to have taken any part in Scottish politics till the untimely death of that monarch, which, from a state of peace and pros- perity, plunged the country into confusion and misery. There was now only the life of an infant female, re- siding in a distant land, between him and his plausible claim to the Scottish crown. He was nominated one of the negotiators for settling the marriage between her and the son of Edward I., which, if it had taken place, would have entirely changed the history of the island of Great Britain. From his intimate knowledge both of Scotland and England, it is probable that the ** Articles" were chiefly of his framing, and it must be allowed that they are just and equitable. For his own interest, as well as for the independence of his native country, he took care to stipulate that, " failing Margaret and her issue, the kingdom of Scotland should return to the nearest heirs, to whom of right it ought to return, wholly, freely, absolutely, and without any subjection.*" The Maid of Norway having died on her voyage home, the ex-Chief Justice immediately appeared at Perth with a formidable retinue, and was in hopes of being immediately crowned King at Scone ; — and he had nearly accomplished his object, for John Baliol, his most formidable competitor in point of right, always feeble and remiss in action, was absent in England. But, from the vain wish to prevent future disputes by a solemn decision of the controversy after all parties should have been heard, the Scotch nobility in an evil hour agreed to refer it, according to the fashion of the age, to the arbitration of a neighboring sovereign ; and fixed upon Edward I. of England, their wily neighbor. It is a great reproach to the memory of the ex-Chief Justice that, at the famous meeting on the banks of the ' Some historians, both English and Scotch, have supposed that the Robert IJruce employed in this negotiation was the son of the Chief Justic* who so romantically became Earl of Carrick, by being forced by the heiress of that Rreat domain to marry her ; but Lord Hales clearly proves that It was Robert the father. — See Dalrymphi's Annals, i. 19S, 204. 1 ' .. i 70 REIGN OF EDWARD I. [1292. Tweed, when the English Clianccllor, in the presence of the notables of both nations, asked him " whether he acknowledged Edward as Lord Paramount of Scotland, and whether he was willing to ask and receive judgment from him in that character, he expressly, definitively, and absolutely declared his assent.'" He afterwards pleaded his own cause with great dex- terity, and many supposed that he would succeed. Upon the doctrine of representation, which is familiar to us, Baliol seems clearly to have the better claim, as he was descended from the eldest daughter of the Earl of Huntingdon : but Bruce was one degree nearer the com- mon stock; and this doctrine, wliicli was not then firmly established, had never been applied to the descent of the crown." When Edward I. determined in favor of Baliol, influ- enced probably less by the arguments in his favor than by the consideration that from the weakness of his char- acter he was likely to be a more submissive vassal, Robert de Brus complained bitterly tliat he was wronged, and resolutely refused to acknowledge the title of his rival. He retired in disgust to his castle of Lochmaben, where he died in November, 1295, in the seventy-second year of his age. While resident in England he had married Isabel, daughter of Gilbert dc Clare, Earl of Gloucester, by whom he had several sons. Robert, the son of Robert the eldest, became Robert I., and one of the greatest of heroes. The descent of the crown through liim to the Stuarts is, of course, universally known. 'I'lie 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." ' R. Foed. vol. ii. 545. * See iJalryinple's Annals, i. 215 — 243. ' See Dug. Chr. Sen Rot. Fin. ii 79. 545 Dug. Bar. Coll. Peerage, I* 2. f C I, J,>::?i:.,;» CHAPTER II. HIE LIVES OF THE CHIEF JUSTICES FROM THE ACCES- SION OF EDWARD I. TO THE APPOINTMENT OF CHIEF JUSTICE TRESILIAN. WE now arrive at the .xra when our judicial insti- tutions were firmly established on the basis on which, with very little alteration, they have remained to the present da)'. Although the AULA Regis had existed down to the conclusion of the reign of Henry III., and cases of peculiar importance or diffi- culty were decided before the Chief Justiciar, assisted by the great officers of state,' it had gradually ceased to be a court of original jurisdiction, and it had been separating into district tribunals to which different classes of causes were assigned. Edward I., our JUSTlNlAN, now not only systematized and reformed the principles of English jurisprudence, 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 Matihew Hale docs not scruple to affirm that more was done in the first thirteen years of his reign to settle and establish the distributive justice of the kingdom, than in all the ages since that time put together."" The AULA Regis he utterly abol- ' A remnant of the Aula Regis subsisted to our own time in the " Ex- chequer Chamber," into which cases of };reat importance and difficulty continued to be adjourned, to be artjucd before all the judges. The practice of judges reserving points of criminal law arising beiore them on the circuit, I consider as having had a similar origin. The rule which prevailed — that both in civil and criminal cases ti\e opinions of the majority of the judges in the Excliequer Ciiamber simuld overrule the opinions of the ma- joriiy of the judges in the court in which the cases originated, and in which formal judgment was to be given — admits of no other solution. * 4 Bl. Com. 425 ; Male's Hist. C. L. p. 162. 72 REIGN OF ED WARD T. [1272. . ished as a court of justice ; and he decreed that there should no longer be a Justiciar with military and politi- cal 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, as- signed to hold picas 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 crimi- nal jurisdiction, and was invested with a general super- intendence 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 migra- tions to the different cities in his dominions; and the section of the Aula Rkgis which had subsequently sat at Westminster now became the " Court of Common Pleas," having a Chief Justice and Puisnies, with an ex- clusive 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 "per- sonal actions." The management of the estates and revenues of the Crown had been early intrusted to cer- tain members of the AULA Regis, who were called " liaron? of the F.xchequer." I'hcy now formed an entirely separate tribunal called the " Court of Ex- chequer," with the Lord Treasurer and the Chancellor of the Kxche(j.uer to preside over them — being in strict- ness 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 accountants. The Chan- cellor, from being the sixth in precedence of the great officers 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 appellate jurisdiction of the AULA Regls was vested in the great council of the nation now called the Parliament, and, on the division of the legislature into two chambers which soon followed, remained with the /■ 1278.] RALPH DE HENGHAM. 73 Lords Spiritual and Temporal, who had the Judges as their assessors. All juridical knowledge was long monopolized by the clergy ; but while the civil and canon law continued to be cultivated by them exclusively, a school of municipal or common law had been established for laymen, who grad- ually formed themselves into societies called " 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 RALril DE IIengiiam Chief Justice of the King's Bench, and Thomas de Weyland 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 stim- ulating their industry by fees on the causes they tried. The De Henghams hud 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 office of a prothonotary in London, and not only made himself master of the procedure of the courts, but took delight in perusing Glanville, Bracton, and Flcta, which, in those simple ami happy times, com- posed a com[)lete law library. Without the clerical ton- sure, he became a candidate for business at the bar; but such was the belief, that the characters o'i causidiciis and clcricus must be united, that, to further his success, he was obliged to take holy orders, and he was made a can- on 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 principle oi deter digniori he was made Chief Justice of the Court of King's Bench, and received the honor of knighthood. He fully answered the expectation which had been formed of him for industry, learning, and ability. His ' It was to concenl the want of clpiic.il tonsure, that the scrf;ca!its-at-law, who soon monopolizctl the practice of the Court of Common I'lcas, adopted the coif, or blacli velvet cap, v.iiicli became tiic baily;e of tlieir order. :ii H REIGN OF EDWARD I. [1278— 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 REdlSTRUM Brevium, and pronounced by Lord Coke to be " the most ancient book on the law.'" Next, he composed an original work, which is still extant, and quoted in Westminster Hall as the " Summai 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 pnccipc to the execution of the judgment. It continued in the MS. till the reign of James I., when it was printed and published with the following title-page : " Radulphi de IIencmam EnwAKDl Reikis T. CapitiiUs oliiii yiistiliarii SUMM/E. Masjn.i Tlcngliam ct Parva vulgo nuncupativ, mine primmn ex vet. Codd. MSS. lutein piodcuiit. LOMUM. Bibliopolarum Corpori cxcudittir, M.UC.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 suit to be divided into six days; and he describes what is to be done each day — in " cast- ing an essoin," " demanding a view," &c.* But it may be considered as creating order out of chaos in the legal world, and, with all its faults, it must have been of ' 4 Inst. 140 ; 3 Rep. Preface, vii. He means, of permanent authority in the common law ; which earlier treatiics could not be considered. * I give a specimen : "Secunuus DiKS. .Secundo die piaciti potest reus facere defallam si velit ex consuttudine retjiii, dum tamen essoniatus fuerit primo die ordinc prsemonstato. I'etens autem cxpectans fpiartain diem ipso die ofierat se lili sic versus ipsum reum in 1ut?c verba : ' Richardus Ic Jay se profrc vers Wil- liam Iluse dc play de terre.' " &c. — I/nt^'ham Magna, ch. viii. J I289.J 21 A LP J f /;/•; HKNGHAM. 75 essential service to those who were to practice before the learned author. He gave much satisfaction by his despatch of judicial business. The Judj^cs of the Kin^i^'s Bench still traveled about with the Sovcrcir^n, and mounted their tribunal wherever ho mij;ht be. Thus Chief Justice Hengham led a wandering life, and was stationed from time to time at Winchester, Gloucester, York, and other cities, lie was summoned to the parliament held at Shrews- bury, and joined in the inhuman sentence by which the Prince of Wales was condemned to die as a traitor for gallantly defending the independence of his country.' The conquest and settlement of Wales being com- pleted, F.dward went abroad in order to make peace be- tween Alphonso, King of Aragon, and Philip the Fair, who had lately succeeded Philip the Hardy on the throne of France. In such favor was Cliief Justice de Hengham, that he was appointed Guardian of the king- dom, although this trust no longer was attached to his office; — the King declaring, like the Duke of Vienna, — . . . " Vou must know we have witli special ^oul Elected him our absence to supply ; I.cnt him our terror, chest him with our love, And f^ivcn his deputation all tlic organs Of our own power." The courtiers probably replied, — " If any in all Enjjland be of worth To underL;o sucii ample grace and honor, It is De Hen^hain'' Yet he was supposed to have misconducted himself as much as " Lord Chief Justice Angelo." The King remained in Acjuitaine nearly three years, and at last coming home rather unexpectedly, though not in disguise, found many disorders to have prevailed, both from open violence and the corruption of justice. Tumults had broken out in many parts of England (it was said) from the rapacity of De Hengham ; and rob- beries on the highways had become so frequent, that no one could travel from town to town without a strong escort. What was worse, it was alleged that the Lord « Rot. Pari. 6 Ed. i. 1 76 REIGN OF EDWARD /. [12S9- Clujf Justice, instead of vigorously and impartially cn- forciiv^ the law, had himself taken bribes, and had con- nived at a wholesale trade in bribery carried on by his lj>".)thcr Judges. The King, without inquiry, threw them all into prison, and summoned a parliament, before which they might be brought to trial. The kingdom was certainly found in a very disturbed state, but no specific act of mis- government could be fastened on Dc Ilengham. He and most of the other Judges, however, had taken money from the suitors, which was considered evidence of judicial corruption. They were put to answer at the bar of the House of Lords, and many witnesses were examined against them. All except two, John de Mat- ingham and Elias ile Bockingham, were found guilty, dismissed from their offices, and heavily fined. To dis- grace them still more, their successors were required to swear, when entering on office, " that they would take no bribe, nor money, nor gift of any kind, from such persons as had suits depending before them, — except a breakfast.'" De Ilengham was fined 7000 marks, and for some time labored under deep disgrace." But the evidence against him is not preserved, and there is reason to think that he suffered unjustly from popular prejudice and royal precipitancy. The salary allowed to him was so exceed- ingly small, that he could not subsist without fees, and, the amount of these not always being well defined, the • Pari. Hist. 33. • Tyrrell, in his History, sets down the "Sir Ralph tie Hengham, C. J . Sir John Loveton Sir Will jam Brompton . Sir Solomon Rochester . Sir Richard Boyland Sir Thomas Soddington Sir Walter Hopton Sir William Saham Robert Lithbury Roger Leicester Henry Bray And, what is more remarkable, Adam court, is fined no less than 32,000 marks ■ilver plate." fines as follows: 7000 marks 3000 " 3000 4000 4000 2000 2000 3000 1000 1000 Justice of Assize. Justices Itinerant. Master of the Rolls. 1000 ) Escheator and ) Judge for the Jewrs. de Stratton, a certain Clerk of the of new money, besides jewels and I308.J RALPH DE IIENGIIAM. 11 taking of them was liable to be misconstrued into extor- tion or bribery. In after-times the current of public opinion ran strongly in his favor; and in Richard III.'s reign it was said " the only crime proved against him wa«, that, out of mere compassion, he had reduced a fine which he had set upon a poor man from 13.T. 4^/. to 6.V. 8v.' truly considered the father of the Common Law Jud ;cs. Mc was the first of ihein that never put on a coat of mail ; and he has had a lon^ line of illus- trious successors contented with the ermined robe. Of the contemporary Judj^^e, DlC WliVI.ANl), I find nothin;:j related prior to his a[)pointment of Chief Justice of the Common Pleas. lie likewise was esteemed a ^reat lawyer, and he long gave high satisfaction as a magistrate. He several times acted as Justice Itinerant, and was zealous in detecting and punishing criminals.' liut unfortunately, his salary being only sixty marks a year, he seems without scruple to have resorted to very irregular courses for the pur[)ose of increasing his riches. When arrested, on the King's return from Aquitaine, conscious of his guilt, he contrived to escape from cus- tody, and, disguising lumself 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 jnu'suit was made after him, jvid he was discovered wearing a cowl and a serge jerkin. Accord- mg to 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 Jus- tice preferred surrendering himielf to perishing from want.' He was in" icdiately conducted to the Tower of London. Rather than stand a trial, he petitioned for leave to abjure the realm ; this favor was granted to him on condition that he should be attainted, and forfeit all ' M.idd. Exch. ii. 66. c. I. k. ' One account says, " He took upon him the habit of a grey friar, but, being discovered by some of his servants, he was watched and guarded, and, after two months' siege, went out forsaking his friar's coole, and was takea and sent to the to»-.r." — b^s 4 Bhomfietd'- Norfolk, 631. ., *> 1389] ROGER L/C BRA li AVON. 79 his lands and chattels to the Crown.' ll.iving walked barefoot and b.ireheadccl, with a criicin ' in his hand, to the seaside at Dover, l\e was put on board a ship and departed to forei<;n parts, lie is s,i d to hav > died in exile, and he left a name often quoted as a reproach to the Ik-nch till he was superseded by Jeffreys and Scro^'gs.' The immediate successor of De Ilengham as Chief Justice of the Kinifs Ik-nch was Gll.liKUr DK Tiiokn'- TON, who, I iia! e no doubt, was a worthy man, but who could ne . in e b^cn very distinjjuished, for all that I can HihI respcK-ti it; him is that he was allowed a salary of £,At<^ a ^■car.' He was overshadowed, as sometimes h;'))pens, b; a puisne who sat by him, and who at last suptJanted'him. This was KoGKU Mi liRAHACON,* who, from the part he took in settling the disputed claim to the crown oi Scotland, is an historical character. His an- * The iirn]).'rty furfcitcil by him was siiid to hive Iiecn worth upwards of IfXi.ivxj iiiiirk-i, or /,'70,0(X), " an incn-diljle sum," says Illackstoiie, " in those days before paper credit was \\\ u>e, aiul wiien tlio annual salary of a Chief Ju:.iice wa-i only sixty marks." — Coin. iii. .jio. •Oliver St. John, in his siieeuii in tlic \.m\^ Parliament against the Judj^es who decided in favor of shii>-money, compares them with the worst of liieir predece .sors : — " Wcyland, C'hicf Justice of the Common I'leas in the time of ildward I., was aitaiiited of felony for takiii.; hiihes, and his hintls and goods forfeited, as apjjcars in the I'leas of I'arli.iment, i3 VA. I., and he was banished the kin;^dom a> unworthy to live in that st.ite ajj;ainst which he had so much olVended." Lin;.;ard says tliat " Weyland was found guilty of having first instigated his servants to commit murdjr, and then screened lliem fnuu punishment " (vol. iii. 270) ; but he cites no authority to support so serious a charge : and the historian on this occasion does not display his u-aial accuracy, as he makes Weyland Chief Justice of the King's nench, elevating De llengham at the same time to the oltice of " (Jranil Justiciary." In a M.S. chronicle in the Bodleian Library, cited by Dugdale (Chron. Ser. I2S3), there is this entry; " 'riio. dc Weyland, eo (juoJ iitali tractavit pofiulttin, al) olhcio Justiciarii amotus, exhxredatus, ct a terra e.xultalus." Speed gives a melanclioly accinint of the suflerings of the English, at this time, between the Jews and tl ■ Judges. " While the Jews by their cruel usuries had one w.iy eaten up the people, the Justiciars, like another kind of Jews, hal .'uineu them with delay in their suits, and enriched themselves vii 1 wicked convictions." He then relates with great glee "how Sii Thomas Weyland being stripped of all his lands, goods, and jewels, which he had so wickedly got, was banished like the felons he had tried." — I/ist. 9/G. i9. p. 553. ' " Gilbertus de Thornton, capitalis Justic. habet XL/, per annum, ad s« sustentandum." — Lib. i3 VA. I. in. i. *The name is bom-jlimes sp«U Braba9on, Braban9on, Drabason, and Prabanson, So REIGN OF EDWARD 1 [1291. II' 1 .: !. i! t <:estor, celebrated as " the great warrior," had accom- panied the Conqueror in the invasion of England, and was chief of one of those bands of mercenary soldiers then well known in Europe under the names (for what reason, historians are not agreed) of Routiers, Cotter- eaux, or Brabangons^ Being rewarded with large pos- sessions in the counties of Surrey and Leicester, he founded a family which flourished several centuries in England, and is now represented in the male line by an Irish peer, the tenth Earl of Meath. The subject of the present sketch, fifth in descent from "the great war- rior," changed the military ardor of his race for a desire to gain distinction as a lawyer. He was regularly trained in all the learning of " Essoins" and "Assizes," and he had extensive practice as an advocate under Lord Chief Justice de Hengham, On the sweeping removal of al- most all the Judges in the year 1 190, he was knighted, and appointed a Puisne Justice of the King's Bench, with a salary — which one would have thought must have been a very small addition to the profits of his hered- itary estates — of £y^ Q>s. StL a year." lie proved a most admirable Judge; and, in addition to his professional knowledge, beinjj well versad in historical lore, he was frequently referred to by the Government when negotia- tions were going on with foreign states. Edward I., arbitrator by mutual consent between the aspirants to the crown of Scotland, resolved to set up a claim for himself a.s liege lord of that kingdom, and Braba^on was employed, by searching ancient records, to find out any plausible grounds on which the claim could be supported. He accordingly traveled diligently both through the Saxon and Norman period, and — by making the most of military advantages obtained by Kings of England over Kings of Scotland, by misrepre- senting the nature of homage which the latter had paid ' Ilume, who designates thom " desperate rudians," says, " troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another ; they often acted in an independent manner, and under leaders of their own. I'he greatest monarciis were not ashamed, on occa- sion, to have recourse to tlieir assistance ; and as their habits of war and depredation had given tiiem experience, hardiness, and courage, tlicy gen- erally composed the most formidable part of those armies which decided Ihe political quarrels of princes." — Vol. i. 438. * Dug. Chr, Ser. A. D. 1290. :9i. 1291.J ROGER LE BRABACON. 81 to t: e former for possessions held by them in England, and by blazoning the acknowledgment of feudal subjec- tion extorted by Henry II. from William the Lion when that prince was in captivity, without mentioning the express renunciation of it by Richard I. — he made out a cast, which gave high delight to the English Court. Edward immediately summoned a parliament to meet at Norham, on the south banlc of tlie Tweed, marched thither at the head of a considerable military force, and carried Mr. Justice Brabagon along with him as the ex- ponent and defender of his new sn::crainctd. The Scot- tisii nobles being induced to cross the river and to assemble in the presence of Edward, under pretense that he was to act only as arbitrator. Sir Roger by his order addressed them in French (the language then spoken by the upper classes both in Scotland and Eng- land), disclosing the alarming pretensions about to be set up. The following is said to be the substance of this speech : — "Lords, Thanes, and Knights of Scotland, — The rca:',on of our supreme Lord coming here, and of your being summoned together, is, that he, in his fatherly kindness for all in any way dcpendin;;- upon him, t.iking notice of the confusion in which }'our nation has been since the death of Alexander your last King, and from the affection he bears for that kingdom, and all the in- habitants thereof, whose protection is well known to belong to him, lias resolved, for tlie more effectually doing right to all who claim the kingdom, and for the preservation of the peace thereof, to show you his supe- riority and direct dominion^ over the same out of divers clironiclos and ancient muniments preserved in several monasteries in England." He then appears to have entered into his proofs; and he tluis concluded : — " The mighty Edward, to whom you have appealed; will do justice to all v/ithout any usurpation or diminu- tion of your liberties; but he demands your assent to, ' Here isi ?he wcll-lcnnwn feudal distinction between tlie dominium direC' turn, which belongs to the lord, and the dominium utile, which belongs to ths feudatory. I— 0. S3 REIGN OF ED WARD I. [1293- l»ffi "?! and recognition of, his said superiority and direct do- minion ^ A public notary and witnesses were in attendance, and in their presence the assumed vassals were formally- called upon to do homage to Edward as their suzerain, of which a record was to be made for a lasting memorial. The Scots saw too late the imprudence of which they had been guilty in choosing such a crafty and powerful arbitrator. For the present they refused the required recognition, saying that " they must have time for de- liberation, and to consult tiie absent members of their different orders." Brabagon, after advising with the King, consented that they should have time until the following day, and no longer. They insisted on further delay, and showed such a determined spirit of resistance, that their request was granted ; and the first day of June following was fixed for the ceremony of the recognition. Braba^on 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 Axvor, 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 Braba- §on lived to see the fugitives from Bannockburn, 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 favor of Baliol, Brabayon was still employed to assist in the plan which had been formed to bring Scotland into entire subjec- tion. There being a meeting at Newcastle of the nobles of the two nations, when the feudatory King did hom- age to his liege lord, complaint was made by Roger and, ning their most tish by ■aba- .1 to incd were bjec- )blcs lom- oger 12 96.] ROGER LE BRABACON. Bartholomew, a burgess of Berwick, that certain Eng- lish judges had been deputed to exercise jurisdiction on the north bank of the Tweed. Edward referred the matter to Brabacon, and other commissioners, com- manding them to do justice according to the laws and customs of his kingdom. A petition was then presented to them on behalf of the King of Scotland, setting forth Edward's promise to observe the laws and customs of that kingdom, and that pleas of things done there should not be drawn to examination elsewhere. Brabacon is reported thus to have answered : — " This petition is unnecessary, and not to the purpose ; for it is manifest, and ought to be admitted by all the prelates and barons, and commonalty of Scotland, that the King, our master, has performed all his promises to them. As to the conduct of his Judges, lately deputed by him as SUPKRIOR and DIRECT LORD of that kingdom, they only represent his person ; he will take care that they do not transgress his authority, and on appeal to him he will see that right is done. If the King had made any temporary promises when the Scottish throne was vacant, in derogation of his just iuzcrai)icti\ by such 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 Brabayon and the other Judges, it was resolved that the respondent must stand at the bar as a vassal, and that, for his contumacy, three of his principal castles should be seized into the King's hands.' Although historians who mention these events desig- nate Brabacon as " Grand Justiciary," it is quite certain that, as yet, he was merely a Puisne Judge; but there was a strong desire to reward him for his services, and, at last, an opportune vacancy arising, he was created Chief Justice of the King's Bench. Of his performances in this capacity we know nothing, except by the general commendation of chroniclers ; for the Year-Books, giving a regular account of judicial de- cisions, do not begin till the following reign. The Court ' Rym. ii. 605. 615. 635. Rot. Scot. i. 11. 16. !>»l ; i I I if 84 REIGN OF ED WARD I. [1307. i ' \ I of King's Bench, still following the person of the sov- ereign, was, on one occasion, in Braba§on's time, held in Roxburgh Castle, then in the possession of the English ; but we have no report of any of the proceedings 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 hath done in his late wars hath been carried on by your joint consent and allowance. But of late time, by reason of the sudden incursion of the Scots, and the 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. However, 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 asked for,' — We read nothing more that is very mem- orable of him during the present reign.* On the accession of Edward H. Brabagon was reap- pointed Chief Justice of the King's Bench," and he continued very creditably to fill the office for eight years longer. He was fated to deplore the fruitless result of all his efforts to reduce Scotland to the English yoke, — Robert Bruce being now the independent sovereign of that kingdom, after humbling the pride of England's chivalry. ' Hale, Hist. C. L. 200. ' We are not told whether they exclaimed " Oh ! oh !" or what was the prevailing fashion of interjectional dissent. For centuries after, )).irliamen« tar)' cheering was not by " Hear ! hear !" but by " Anion ! anicn !" » I Pari. Hist, 46. ■* Sec 3 Tyrrell, i3. ' He was swjm in before Walter Regincvld, the Ueputy Treasurer. — Du^j. Chr. Ser. I293J WILLIAM HOWARD. 85 At last, the infirmities of age unfitting Brabajon for the discharge of his judicial duties, he resigned his gown ; but, to do him honor, he was sworn a member of the Privy Council, and he continued to be treated with the highest respect by all ranks till his death, which happened about two years afterwards. — He was mar- ried to Beatrice, daughter of John de Sproxton, but had by her only one child, a son, who died an infant. The carls of Meath are descended from his brother Matthew.' Collins, in his " Peerage," which, generally speaking, is a book of authority, here introduces Sir William Howard, as " Chief Justice of England." Although he is so described under his portrait in the window of the church at Long Melford, in Suffolk," I doubt whether he ever reached this dignity ; but, for the honor of the law, I cannot refuse to introduce him from whom flowed all the blood of all the Howards. The name was originally spelt Haward, and must have been of Saxon origin. His pedigree does not extend higher than his grandfather, who was a private gentle- man, of small estate, near Lynn, in Norfolk. His father likewise was contented to load a quiet life in the coun- try, — intermarrying with the daughter of a respectable neighbor, and neither increasing nor diminishing his patrimonial property. But young William, hearing of the great fame and riches acquired by De Hengham and other lawyers, early felt an ambition to be inscribed in their order, and was sent to study the law in London. There is no certain account of his success at the bar, but we know that in the 2ist Edward L he was assigned, with seven others, to take the assizes throughout the realm in aid of the Justices of both benches. The dis- trict to which he was appointed comprehended the counties which now constitute the Northern circuit (ex- cept Durham), with Nottingham and Derby, now belong- ' His descendant, Sir William le I5raba9on, was Vice-Treasurer of Ire- land, and died in 1552. An Irish earldom was conferred on the family in 1627, and in 1S31 the present Earl was created a peer of the United King- dom by the title of Haron Chaworth. — See Grandeur of the Law, p. 182. * He appears there in his judj^e's robes, with these words in ancient black- letter characters : " Pray for the good state of William Haward, Chief Justis of England." — Dug. Or. Jur. p. ICX). f I \l Jl f ■j ^■5 ;l 4 ■ J ^4* ^ 86 REIGN OF HENRY II T. [1297. ing to the Midland. Four years after, he was appointed one of the Tudres of the Common Picas : and on the accession of Edward II. lie was attain 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 hi.? official fees, (his salary was little more than ^^"30 a year,) he bought large possessions at Terrington, Wiggenhall, East Winch, and Mclford, in Suffolk. These were long the principal inheritance of the Howards, who, for sev- eral generations, did not rise higher than being gentle- men of the bedchamber, sheriffs of Norfolk and Suffolk, governors of Norwich Castle, and commissioners of array, — without being ennobled. At last, Sir Robert Howard, descended from the Judge's eldest son, married the heiress of Thomas Mowbray, Duke of Norfolk ; and Richard HI. conferred on John, the son of this marriage, (the famous "Jockey of Norfolk," who fought and fell at Bosworth,) the dukedom still enjoyed, after repeated attainders, by the eldest representative of the family; while many earldoms and baronies have been conferred on its junior branches. The next authentic Chief Justice of the King's Bench t. 5. c. 2.), liy wliieli the subject is so anxiou--ly ;;uarded a!^^inst such vat^ue ch.ir^es. ' \Ve are not told the amount of liis -..ilnry as Chief Justice, luit I)ui;dale says, " Sir William rhor|ie, 21 Md. I., tlicn Cliief Justice of the I\ini;'s iJt-nch, was allowed out of the l\ini4's wanli\.l)e at tlio l'"ea>t of All Saints, for iiis Winter Uohcs, half a clotl\ colour curt, three furs of white liudi;, and (me liood of tlie same t)ud^ : and for his livery at Christmas, lialf a cloth likewise colour curt, and one hood curt, one liood containing xxxii bellies of minever helf pur, one fur of minever containing seven tires and two furs of silk, cacli of seven tires."— ^r. Jur. p. (j8. ' Dug. Cher. Ser. nn 1' , ^i U I ; ll Kil M P ■•'Is ' f ■ ' f; L p 1 -n^ '■. V. ' r 't'\ 94 REIGN OF EDWARD III. [1353- course than that the Kinc^, procurinL^ allies, should (^o a^:unst his adversary by main force, and to enable him to do this you promised to aid him with body and [^oods. Whereupon he made alliances v/ith several forei,i::n 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 ad- versary deceitfully broke these, actuated by implaca!)le irialice against him and his friends. Now, after rhiliji's decease, John, his son, has wrongfully possessed hinisjlf of the kingdom of France, has broken the existing truce both in Gascony and Britany, 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 nim, and for the good will he has always found in you, now submits the matter to your consideration, and pniys 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 \'our 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 cjuicker despatch of business, you immediately make choice of twenty-four or tliirty persons out of your whole 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 favorably 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 parlia- ment, to induce the Commons vigorously to carry on the war, he expressed the King's earnest desire to make peace on honorable 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 » I P?.i. Hist. 119. 1366.] JOHN DE CAVENDISH. 95 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?" when, to his great annoyance, " they all unanimously cried out 'Yea! yea!'" However, a supply was ob- tained ; and, the French King becoming insolent frotn the belief that Edward's subjects, tired of the war, would desert him, the immortal victory of Poictiers followed. In 1358 the office of Chief Justice of the King's Bench was again vacant ; but whether by the death or resigna- tion of Shareshall, I have been unable to ascertain. He was succeeded by Sir Henry Green, of whom I find nothing memorable. Then came the famous Sir John Knyvet, who afterwards held the Great Seal, and of whom I have already told all that I know.' Next we come to a Chief Justice whose career excites considerable interest : Sir John de Cavendish, the an- cestor of the Duke of Devonshire. The ori'/inal name of the family was Gernon, or Gernum ; and they changed it on marrying the heiress of the manor of Cavendish, in the county of Suffolk. This, however, was only :. 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 ad- vocate. Such was his reputation, that, in the year 1366, Edward HI., after the peace of Brctigni, being desirous of making himself popular by good judicial appoint- ments, raised John de Cavendish to the ofiice of Chief Justice of the King's Bench, although he had not filled the office of Attorney or Solicitor-General, or even reached the dignity of the coif. The appointment gave universal satisfaction ; and, with De Cavendish presiding over the common law, and Knyvet over equity, it was admitted that justice had never been so satisfactorily administered in Westminster Hafl. 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 ' Lives of the Chancellors, vol. i. pp. 226. i!( f 1 ' ^IT 96 REIGN OF EDWARD III, [1382. last he fell a victim to the brutality of the populace in Wat Tyler's insurrection. After that rebel chief had been killed in Smithficld by Sir William Walworth, there was a rising in Norfolk and Suffolk, under the conduct of a leader mi.\ch more ferocious, who called himself Jack Sirazv, 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, which they plundered and burned. The venerable Judge made his escape, but was tiikcn in a cottage in the neighborhood. Unmoved by his gray 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 ; Jacl* Straw's Chief Justice magnanimously declaring, "that, in respect of the office of dignity which his brother Cavendish had so long filled, instead of being hanged, 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 of wealth ; for he added very little to his landed estates, and his posterity for some generations remained in ob- scurity. The next eminent Cavendish we read of was Sir William, lineally descended from the Chief Justice's eldest son, John. This indivitluaj, at starting, was not very high in office, being only gentleman-usher to Car- dinal Wolsey. But he will ever be remembered with honor 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 Wol- sey's fall, he was taken into favor by Henry VIII., and became auditor of the Court of Augmentations, Treas- urer of the Chamber, and a I'rivy Councillor. Taking ' Walsinjjham. 1382.] JOHN DE CAVENDISH. 97 the side of the Reformation, he received under Edward VI. large 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. 1-7. I 1:; :ing I! M CHAPTER III. CHIEF JUSTICES TILL THE DEATH OF SIR WILLIAM GASCOYNE. IdU I :i'^ m M WE next come to a Chief Justice of the King's Bench who actually suffered the last penalty of the law — and deservedly — in the regular ad- ministration of retributive justice, — Sir Robert Tresilian, — hanged at Tyburn. I can find nothing respecting his origin or education, except a doubtful statement that he was of a Cornish family, and that he was elected a fellow of Exeter Col- lege, Oxford, in 1354.' As far as I know, he is the first and last of his name to be found in our judicial or his- torical records. The earliest authentic notice of him is at the commencement of the reign of Richard II., when he was made a serjeant-at-law, and appointed a Puisne Judge of the Court of King's Pcnch." 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, in- stead of confining himself to them, he mixed deeply in politics, and showed a determination, by intrigue, to reach power and distinction. He devoted himself to De Vere, the favorite of the young king, who, to the great annoyance of the princes of the blood, and the body of the nobility, was created Duke of Ireland, was vested for life with the sovereignty of that island, and had the distribution of all patronage at home. By the ' Gentleman's Magazine, vol. Ixiv. p. 325. I suspect that he is assigned to Cornwall only on the authority of— " By yw, Fol and Pen, You know Cornish men." •Close Roll, I Rich II. Liberat. ab anno i. us(iue ult. — Ric. II. m. 15. i i jS...] ROBLirr TRESILIAN. 99 influence of this minion, Trcsilian, soon after the melan- choly end of Sir John Cavendish, was appointed Chief Justice of the King's Bench ; and he was sent into Essex to try the rebels. The King accompanied him. It is said that, as they were journeying, " the Easex men, in a body of about 500, addressed themselves barefoot to the King for mercy, and had it granted upon condition that they should deliver up to justice the chief instru- ments of stirring up the rebellion ; which being accord- ingly 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 princi- pal advisers of the measures of the Government, being ever ready for any dirty work that might be assigned to him. In the year 1385, it was hoped that he might have got rid, by an illegal sentence, of John of Gaunt, who had become very obnoxious to the King's f;avorites. " For these cunning flatterers, having, by forged crimes and accusations, incensed the King against him, con- trived to have him suddenly arrested, and tried before Judge Tresilian, who, being perfectly framed to their in- terests, would be ready enough, upon such evidence as they should produce, to condemn him."" But the plot got wind, and the Duke, flying to Pontefract Castle, fortified himself there till his retainers came to his rescue. In the following year, when there was a change of ministry according to the fashion of those times, Tre- silian was in great danger of being included in the im- peachment which proved the ruin of the Chancellor; but he escaped by an intrigue with the victorious party, and he was suspected of having secretly suggested the com- mission signed by Richard, and confirmed by Parlia- ment, 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 unpopu- larity, and he then advised that a bold effort should be • Kennet, i. 24S. • lb. 253. i 11 1 100 REIGN OF RICHARD II. [138) i M 11 made to crush them. Mcctinc^ with encouragement, h«» 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 under- took, through the instrumentality of his brother Judges, to break the commission, and to restore the King and the favorite to the authority of which it had deprived them. His plan was immediately adopted, and the Judges, who had just returned from the summer assizes, were all summoned in the King's name to Nottingham. On their arrival, they found not only a string of ques- tions, but answers, prepared by Tresilian. These he himself had signed, and he required them to sign. Belknappe, the Chief Justice of the Common Pleas, and the others, demurred, seeing the peril to which they might be exposed ; but, by promises and threats, they were induced to acquiesce. The following record was accordingly drawn up, that copies of it might be dis- tributed all over England : — " Be it remembered, that on the 25th of Aug., in the nth year of the reign of K. Rich. H., at the castle of Nottingham, before our said lord the King, Rob. Tre- silian, chief justice of England, and Robt. 15elknappe, chief justice of the common bench of our said lord the King, John Holt, Roger Fulthorp, and Wm. dc Burg, knights, justices, &c., and John de Lokton, the King's serj<:ant-at-huv, in the presence of the lords and other witnesses under-written, were personally required by our said lord the King, on the faith and allegiance wherein to him the said King they are bound, to answer faith- fully unto certain questions hereunder specified, and to them then and there truly recited, and upon the same to declare the law according to their discretion, viz: — "I. It was demanded of them, 'Whether that new statute, ordinance, and commission, made and published in the last pari, held in Westm., be not derogatory to the royalty and prerogative of our said lord the King ? ' To which they unanimously answered that the same are de- rogatory thereunto, especially because they were against his will. " 2. ' How those are to be punished who procured that statute and commission?' — A. That they were to bo . ^.Ud fc.v^ CAfl[.'.^». . -'.li!:J^tf'l!LAa^-> 1387-1 ROBERT TRESILIAN. lOI punished with death, except the King would pardon them. " 3. ' How those are to be punished who moved the King to consent to the making of the said statute? ' — A. That they ought to lose their lives unless his Maj. would pardon them. " 4. 'What punishment they deserved who compelled, straightened, or necessitated the King to consent to the making of the said statute and commission ? ' — A. That they ought to suf.er as traitors. " 5. * How those arc to be punished who hindered the King from exercising those things which appertain to his royalty and prerogative?' — A. That they are to be pun- ished as traitors. " 6. ' Whether after in a pari, 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 yet the said lords and com- mons will proceed altop;cthcr upon other articles and af- fairs, and not at all upon those limited and proposed to them by the king, until the king shall have first answered them upon the articles and matters so by them started and expressed, although the King's command be to the contrar} ; 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 mat- ters proi)osed by the King : or v/hether, on the contrary, the lords and commons ought first to have the king's an- swer upon their proin)sals before they proceed further?' — A. That the King in that behalf lias the governance and may appoint what shall be first handled, and so gra- dually 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. " 7. ' Whether the king, whenever he pleases, can dis- solve the pari, and command the lords and commons to depart from thence, or not ? ' — A. That he can ; and if any 3rie shall then proceed in pari, against the King's will, he A to be punished as a traitor. " 8. ' Since the King can, whenever he pleases, remove : ) 't i r ! 1' i- I: ! i I Wi^^ ,ii^ 102 REIGN OF RICHARD JI. [1387 any of his judcjcs and officers, and justify or punish them for their offenses ; whetlier the lords and commons can, without the will of the Kini;, impeach in pari, any of the said judges or officers for any of their offenses?' — A. That they cannot ; and if any one should do so, he Is to be punished as a traitor. "9. * Ho"v he is to be punished who moved in pari, that the statute should be sent for whereby Kdw. II. (the Kiiu^'s great grandfather) was proceeded against and de- posed in pirl. ; by means of sending fir and imposing which statute, the said late statute, ordinance, and com- mission were derived and brought forth in pari.?' — A. That as well he that so moved, as he who by pretense of that motion carried the said statute to the pari., are traitors and criminals to be punished with death. " 10. ' Whether tlie jutlgment given in the last pari, held in Westm. against Mich, de la Pole, earl of Suffolk, was erroneous and revocable, or not? ' — //. That if that judgment were now to be given, they would not give it ; because it seems to them that the said judgment is re- vocable, as being erroneous in every part of it. " In testimony of all which, the judges and serjcants aforesaid, to those presents have put their seals in the presence of the rev. lords, Alex. abp. of York, Rob. abp. of Dublin, John bp. of Durham, Tho, bp. of Chichester, and John bp. of Bangor, Rob. duke of Irekmd, IMich. earl of SuiTolk, John Rypon, clerk, ;ind John lilake, escj. ; given the place, day, month, and j'ear aforesaid." Tresilian exultingly thought that he had not only got rid of the obnoxious Commission, but that he had anni- hilated the power of Parliament by the destruction of parliamentary privilege, and by making tb.c proceedings of the two Houses entirely dependent on the caprice of the Sovereign. Me then attended Richard to London, where the opin- ion of the Judges against the legality of the Commission was proclaimed to the citizens at tl e Guildhall; and all who should act under it were declared traitors. A reso- lution was formed to arrest the most obnoxious of the opposite faction, and to send them to take their trials be- fore the Judges who had already committed tliemselves on the question of law ; and under the guidance of Tresil- I ill «387] ROBERT TRESILIAN. 103 ian, a bill of indictment was actually prepared against them for a conspiracy to destroy the royal prero[Tativc. Thomas Ush, the under sheriff, promised to pack a jury *-o convict them ; Sir Nicholas Ikambrc. vho had been thrice Lord Mayor, undertook to secure the fidelity of the citi?.ens ; and all the City Companies swoic that they would live and die with the Kincj, and flight aj^ainst his enemies to their last breath. Arundel, l^ishop of Ely, was still Chancellor; but Tresilian considered that the Great Seal was now within his own grasp, and after the recent examples, in Parnynge and Knyvet, of Chief Justices becoming Chancellors, he anticipated no obstacle to his elevation. At such a slow pace did news travel in those daj^'s, that, on the night of the loth of November, Richard and his Chief Justice went to bed thinking that their enemies were annihilated, and next morning they were awoke by the intelligence rhat a large force, under the Duke of Gloucester and the Earls of Arundel and Nottingham, was encamped at Ilighgate. The confederate Lords, hearing of the proceedings at Nottingham, had imme- diately rushed to arms, and followed Richard towards London, v.'ith an army of 40,000 men. The walls of Lon- don were sufficient to repel a sudden assault ; and a royal proclamation forbade the sale of provisions to the rebels — in the hope that famine might disperse them. But, marching round by Hackney, tliey approached yVldgate, and they appeared so formid:\ble, that a treaty was en- tered into, according to which they were to be supplied with all necessaries, on payment of a just price, and deputies from them were to have safe conduct through the City on their way to the king at Westminster. Rich- ard himself agreed that on the following Sunday he would receive the deputies, sitting on his throne in Westminster Hall. At the appointed hour he was ready to receive them, but they did not arrive, and he askccl " how it fortuned that they kept not their promise?" Being answered, " Because Miere is an ambush of a thousand armed men or more in a place called the Mews, contrary to cov- enant ; and therefore they neither come, nor hold you *aithful to your word," — he said, with an oath, that " he -f:-F ^ I f i ' ' ' 1' '• i i i ■; i.i- ' , 1 1 ll ii 104 REIGN CF RICHARD II. [1389. knew of no such thing," and he ordered the sheriffs of London to go thither and kill all they could lay hands on. The truth was, that Sir Nicholas Brambre, in con- cert with Tresilian, had planted an ambush near Charing Cross, to assassinate the Lords as they passed ; but, in obedience to the King's order, the men were sent back to the City of London. The Lords, at last, reachetl Westminster, with a gallant troop of gentlemen ; and as soon as they had entered the great hall, and saw the King in his royal robes sitting on the throne, with the crown on his head and the sceptre in his hand, they made obeisance three times as they advanced, and when they reached the steps of the throne they knelt down before him with all seeming hunrility. He, feigning to be pleased to sec them, rose and took each of them by the hand, and said, "he would hear their plaint, as he was desirous to render justice to all his subjects." Thereupon they said, " Most Dread Sovereign, v/e ap- peal of high treason Robert Tresilian, that false justice, Nicholas lirambre, that disloyal knight; the Archbishop of York ; the Duke of Ireland ; and the Earl of Suffolk :" — and, to prove their accusation to be true, they threw down their gauntlets, protesting, by their oaths, that they were ready to prosecute it to battle. " Nay," said the King, " not so ; but in the next parliament (which we do appoint beforehand to begin the morrow after the Purification of our Lady), both the}' and you, appearing, shall receive according to law what law doth require, and right shall be done." It being apparent that the confederate Lords had a complete ascendancy, the accused parties fled. The Duke of Ireland and Sir Nicholas Brambre made an in- effectual attempt to rally a military force ; but Chief Justice Tresilian disguised himself, and remained in con- cealment till he was discovered, after being attainted in the manner to be hereafter described. The elections for the new Parliament ran strongly in favor of the confederate Lords ; and, on the day ap- pointed for its meeting, an order was issued under their sanction for taking into custody all the Judges who had signed the Opinion at Nottingham. They were all ar- rested while they were sitting on the bench, except I389.J ROBERT TR ESI LI AN. 105 Chief Justice Trcsilian ; but he was nowhGrc to be found. Wlien tlie members of both Houses had assexublod in Westminster Hall, and the Kin^;" had taken his place on the throne, the five Lords, who were called ArrKI- LANTS, " Entered in costly robes, Icadint^onc another hand ir hand, an innumerable company following them, and, ap- proaching the King, they all with submissive gesture^^ reverenced him. Then rising, they declared their ap- pellation by the mouth of their speaker, who said, ' Be hold the Duke of Gloucester comes to purge himself of treasons which are laid to his charge by the conspirators.' To whom the Lord Chancellor, by the King's command, answered, ' My Lord Duke, the King conceiveth so' honorably of you, that he cannot be induced to believe that you, who are of kindred to him, should attempt any treason against him.' The Duke with his four com- panions, on their knees, humbly gave thanks to the King for his gracious opinion of their fidelity. And now, as a pr..ludo to what was going to be acted, each of the Prelates, Lord •-, and Commons,' then assembled, had the following oatl. administered to them upon the rood or cross of Canterbury in full parliament : ' You shall swear that you will keep, and cause to be kept, the gootl peace, quiet, and trau([uillit3' of the kingdom; and if any will do to the contrary thereof, you shall opjjose 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 j'our power, to live and die with them against all men, no person or thing excepted, saving always your legiancc to the King and the prerogatives of his crown, according to the laws antl good customs of the realm.* "' Written articles to the number of thirty-nine were then exhibited by the appellants against the appellees. ' It will be observed, that althous;h the Commons took this oath, they liad notliing to do with llie tiial, either as aecusers or judj^es. At this lime there might be an appeal of treason in parliament by private persons, the Lords beintj the judges; but all appeals of treason in parluT.nent were taken away by i 1Ij:i. IV. c. 14. — Sec Uract. 119. a ; 3 Inst. 132. • I St. Tr. 89-101 ; 1 I'arl, Hist. i(j6-2io. if li< .[ ;il io6 REIGN OF RICHARD II. [1389. The other four arc allcp:ccl to have committed the various acts of treason cliarfTcd upon them " by the assent and counsel of Robert Tresilian, tiiat false Jus- tice "; and in most of the articles he bears the brunt of the accusation. Sir Nicholas l^rambre alone was in cus- tody ; and the others not appcarinij when solemnly called, their default was recorded, and the Lords took time to consider whether the impeachment was duly in- stituted, and whether the facts stated in the article;; amounted to high treason. Ten days thereafter, judg- ment was given "that the impeachment was duly in- stituted, and that the facts stated in several of the articles amounted to high treason." Thereupon, the prelates having withdrawn, that they might not mix in an affair of blood, sentence was- pronounced, "that Sir Robert Tresilian, tlie Duke of Ireland, the Archbishop of York, and Earl of Suffolk, should be drawn and hanged as traitors and enemies to the King and king- dom, and that their heirs should be disinherited forever, aiid that their lands and tenements, goods and chattels, should be forfeited to the King." Tresilian might have avoided the execution of his sen- tence, had it not been for the strangest infatuation re- lated of any human being possessing the use of reason. Instead of Hying to a distance, like tlie Duke, the Arch- bishop, and the Earl, none of whom suffered — although his features were ncce.'-sarily well known, he had come to the neighborhood of Westminster Hall on the first day of the session of parliament ; and, even after his own at- tainder had been published, trusting to his disguise, his curiosity induced him to remain to watch the fate of his associate. Sir Nicholas Branibre. This chivalrous citizen, who had been knighted for the bravery he had displayed in assisting Sir William Wal- worth to kill Wat Tyler and to put dov;n the rebellion, hav- ing been apprehended and lodged in the Tower of Lon- don, was now produced by the constable of the Tower to take his trial. He asked for further time to advise with his counsel, but was ordered forthwith to answer to every point in the articles of treason contained. Thereupon he exclaimed, " Whoever hath branded me with this ig- nominious mark, with him I am ready to fight in the jjSq] ROnERT TRESrUAN. 107 lists to maintain my innoccncy whenever the King sliall appoint !" " This," says a chronicler, " he spake wit h such a fury, that his eyes sparkU-d willi rage, and he brc^athecl as if an Etna kiy liid in his brcist ; clioosiiv.j rather to die [:jloriously in the field, than disgracefully on the -jib- bet." The appidlants said " they would readily accept of the combat," and, llin^inL,^ down their j^a^es before the Kin^^. added, " we will prove these articles to be true to thy head, most damnable traitor!" Ikit the Lords resolved, "that battle did not lie in this case; and that they would examine the articles with the i)r(xjfs to support them, and consider what judj;ment to ^ive, to the advan- tage and profit of the Kin^ and kingdom, and as they would answer before God." They adjourned for two days, and met again, when a number of London citizens appeared to give evidence against lirambre. l-'or the benefit of the re:Mler, the clironicler I have before quoted shall continue the story : — " Before they could proceed with his trial, they were interrupted by unfortutiate TrcsiliiVi, who being got upon the to}) of an apothecary's house adjoining to tlie palace, and descended into a gutter to look about him and ob- serve who went into a palace, was discovered by cer- tain of the peers, who presently sent some of the guard to apprehend him ; who, entering into the house wiiere he was, ami having spent long '':ue in vain in looking for him, at length one of the ;,';uard stept to the master of the house, and taking- him in- the slioulder, with his dagger drawn, said, thus, ' Show us where thou liast hid Tresilian, or else resolve thy days are accom[)lished.' The master, trembling ai\d ready to yield up the ghost for fear, answered, 'Yonder is the place where he lies'; and showed him a round tabU: covered with branches of bays, under which Tresilian lay close covered. When they had found him they drew him out by the 'leels, 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 ajipellants suddenly rose up, and going to the gate of the hall, they met the guard I 5! i . 11 J m 1 i 1 08 REIGN OF RICHARD II. [1389. i-t »: I •r leading Trcsilian, bound, crying, as they came, ' Wc have him, we have him.' Trcsilian, being come into the hall, was asked * what he could say for himself why execution should not be done according to the judgment passed upon him for his treasons so often committed ? ' but he became as one struck dumb, he had nothing to say, and his heart was hardened to the very last, so that he would not confess himself guilty of any thing. Whereupon he was without delay led to the Tower ; that he might suffer the sentence passed against him : his wife and children did with many tears accompany him to the Tower ; but his wife was so overcome with grief, that she fell down in a swoon as if she had been dead. Immediately Trcsilian is put upon an liurdle, and drawn through the streets of the city, with a wonderful concourse of people following him. At every furlong's end he was suffered to stop, that he might rest himself, and to see if he would confess or acknowledge anything; but what he said to the friar, his confessor, is not known. When he came to the place of execution he would not climb the ladder, until such time as being soundly beaten with bats and staves he was forced to go up ; and, when he was up, he said, ' So long as 1 do wear anything upon me, I shall not die ;' where- fore 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 i)archment ; these being taken away he was hanged up naked, anu after he had hanged up some time, that the spectators should be sure he was dead, they cut his throat, and because the night ap[)roached they let him hang till the next morning, and then his wife, hav- ing obtained a license 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 V/estministcr, he (Trcsilian) 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 » iSt.Tr. 115— uS. i3«9. ROBERT TRESILIAN. 109 palace gate, and there he was in a chamber lookhv^ out of a window down into the court, and there he 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 the chamber? is he alone, or with company?' 'Sir,' quoth she, *I cannot show you, but he has been here a long space.' Therewith the squire went up the better to advise him. and saluted 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 arc 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 chat 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, I 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 paitl for it, and bade him farewell, and departed; and never ceasctl 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 tcucheth him and all the Council.* Then the usher let him in, and when he came before his master he said, 'Sir, I have brought you 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 Robert Tresilian disguised in a villain's habit, in an ale-house here without the gate. ' Tresilian ?" quoth the Duke. * Yea, truly, sir,' quoth the squire, ' you i \v no REIGN OF RICHARD II. [1389- :r: b;; c ¥ I \\- ■■: I shall have him ere you j;o 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 ; ^o thy way and fetch him, but look that thou be stronjr 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 tlie house where Tresilian was, and went up into the cham- ber ; 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 rigiit joyful, and would sec him, and when he was in his presence tlie Duke said, ' Tresilian, what thing makes you here in this country? where is the King? where left you him?' Tre- silian, when he saw that he was so well known, and that none excusation could avail him, said, * Sir, the King sent me hitiier to learn tidings, and he is at Bristol, and hunteth along the river Severn.' ' What,' quoth t!ie Duke, ' you are not come like a wise man, but rather like a spy ; if you would have come to have learnt tidings, you should have come in the state of a kniglit.' ' 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 with the King.' ' It is showed us here,* quoth the Duke, * that he assembled much people, and the King for him ; whither will he lead that people ?' ' Sir,' quoth he, ' it is to go into Ire- land.' ' Into Ireland !' quoth the Duke of Gloucester. ' Yea, sir, truly,' quoth Tresilian : and then the Duke studied a little, ami said, 'Ah, Tresilian, Tresilian! your business is neither fair nor good ; you have done great 1389] ROBERT BELKNAPPE. Ill folly to come into this country, for you are not beloved here, and that shall well be seen ; you, and such other of your affinity, have done great displeasure to my brother and rri'.\ 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 payment ; 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 would fain have excused himself with fair language, in lowly humbling himself, but he could do nothing to appease 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 con- viction and execution cannot be regarded as raising a strong presumption against him : but there seems little doubt that he f.;/'-'^-'';d the vices of the unhappy Richard; and histi - agree, that, in prosecuting his personal aggrandiz- ;c, he was utterly regardless of law and liberty." He died unpitied, and, notwithstand- ing the "historical doubts" by which we are beset, no one as yet has appeared to vindicate his memory. Ho left behind him an only child, a daughter, who was married into the respectable family of Howley, from whom descended the late venerable Archbishop of Can- terbury.' I must now give some account of his contemporary. Sir Robert Belknappe, Chief Justice of the Common ' Frois. part 2. fol. no. * Thus Guthrie says (a. d. 13S4), " Richard was encouraged in his jealousy of the Duke of Lancaster both by the clergy about his person, and Tresilian, his infamous Chief Justiciary, who undertook, if the King should cau^c the Duke to be arrested, to proceed against him as a common traitor." — Vol. ii. p. 326. " Tresilian ha i no rule of judgment but the occasion it was to serve, and he knew no occasion which he could not render suitable to law. He was too ignorant to be serviceable even to the wretched politics of that court, any further than by blind compliance. Thus, like a dog chained up ia darkness, when unmuzzled he was more fierce, and without distinction, tore down all whom his wicked keepers turned into his tremendous haunt." —Vol. ii. p. 34(). * Gentleman's .Magazine, vol. Ixiv. p. 3«5. ii Mi! Jlli' i'ii \m \ \ 112 REIGN OF RICHARD II. [1377. !l Pleas, who, although trepanned into the unconstitutional and illegal act of signing the answers which Trcsilian 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 nan-ie of his ancest s (spelt Relknape) is to be found ii: the list of the companions of William the Coriqueror who fought at Hastings, preserved in Battle Abbey.' The family continued in possession of a mode- rate 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 scirt to push his fortune in the inns of court, and he acquired such a taste for the law, that on the d(\ith of his father and elder brother, while he was an apprentice, he resolved still steadily to follow his profession, and to try for its honors, i^fter some disappointments he was made a King's Sergeant i" and finally his ambition was fuliy grat- ified with the office of Chief Justice of the Common Pleas. He gave high satisfaction as a Judge, and, being esteemed by all parties, it was expected that on the ac- cession of Richard II. he would have been appointed Chief Justice of the King's Bench ; but he was passed over through the intrigues of^ Trcsilian. He was permitted, however, to retain " the pillow of the Common Picas ;" and with this he was quite contented, for, devoting him- self to his judicial duties, he had no desire to mix in the factions which then divided the state. He Old not take any part in the struggle which ended ' Thierry, Nor. Con. ii. 3S5. * While King's Serf^e.int. he seems to have liad a salary of I^io a year, in resj/ect of which he was sometimes sent as a judge of assize, and sometimes he pleaded crown cases as an advocate : "Isriue Roll, 44 Kdward III. " Robert Belknapne.L '/"« l^-^'"-" I5^:lllls, p. 3(19, m. 14. 1389.J ROBERT B ELK NAPPE. "3 in the Commission for making fourteen Barons viceroys over the Kin<;; and he went on very quietly and com- fortably till the month of August, 1387, when, returning from the summer circuit, he was summoned in the King's name to attend a council at Nottingham. On his arrival there he was received by Lord Chief Justice Tresilian, who at once explained to him the plan which had been devised for putting down the Duke of Ireland and the l^arons; 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 those answers were contrary to law, and, though extrajudicial opinions were given without scruple by the Judges to the Crown ages afterwards, he was startled by the danger to whicli he must expose himself by openly flying in the face of those who were actually in ]70ssession 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 Trcsilian's, say- ing, " Now I want nothing but a hurdle and lialter to i.n-ing me to that death I deserve. If I had not done this, I should have been killed by your hands ; and, now 1 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 I^ontlon, and the ensuing civil war which ter- minated in favor of the Barons ; but he remained un- molested till the 3d day of February following, when he was arrested while sitting in the Court of Common Pleas, and, along with the other Judges, was committed to the Tower of London. There he lay till after the trial t)f Brambre and the apprehension and execution jf Tresilian. ' Another .iccount makes ]iim say, " Now I want nothing but a ship, or a nimble horse, or a halter to brinij; me to that death I deserve" {3 Tyrrell, yo6) ; and a third, " Now here lacketh. nothini; but a rupe, that I may receive a reward worthy of my desert ; and I know that if I had not done this, I should not have escaped your hands ; so that for your pleasure and the Kin.:;'s, I have done it, and thereby deserve death at the hands of the Lords."--(3 Ifo/in. 456.) 1—3. I I f p fc I I ' ll |;i I: 'A %• 'I '! i ■ t : '" 1' S '■ If n ■ :i4 REIGN OF RICHARD II. [1389. The H( )f C( then took the tion against ommons tnen tooK up tne prosecu- ir Robert Belknappe, and the other 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 pro- curement of Sir Robert Tresilian, already attainted for the same." Some of them pretended that their answers had not been faithfully recor ;:' • but Sir Robert Bel- knappe pleaded the force put on him, declaring " that when urged to testify against the Commission, so as to make it void, he had answered, that the intention of the Lords, and such as assisted in making it, and the statute confirming it. was to support the honor 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 effect of the threats of the Archbishop of York, the Duke of Ireland, and the Earl of Suffolk; and that he was sworn and commanded, in the 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, wore taken and holdcn for sages in the l.'.w ; and they must have known that the King's will, when he consulted them at Nottingham, was, that they should have answered the questions according to law, and not, as they had done, contrary to law, with design, and under color of law, to murther and destroy the Lords and loyal lieges who were aiding and assisting in making the Com- mission and the statute confirming it, in the last Parlia- ment : 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 matler, pronounced the following sentence : — " That in- asmuch as Sir Robert Belknappe and his brethren, now impeached by the Commons, were actually present in the late parliament when the said Commission and statute received the assent of the King and the three estates of the realm, being contrived, as they knew, for the honor «389] ROBERT BELKNAPPE. JiS 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 ac- cording 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 dis- inherited, and their lands and tenements, goods and chattels, to be forfeited to the King." ' Richard himself sat on the throne during the trial, and was much shocked at this proceeding. But, to his un- speakable relief, as soon as the sentence was prononnced, the Archbishop of Canterbury and all the prelates re- turned, and prayed that " the execution, as to the lives of the condemned Judges, might be respited, and that they might obtam their lives of the King." ' This pro- posal was well relished, both by Lords and Commons ; * and, after some consultation, the King ordered execution to be stayed, saying that " lie would grant the condemned Judges their lives, but the rest of the sentence was to be .n full force, and their bodies were to remain in prison till he, with the advice of the Lords, j)- .lid direct other- wise concerning them." ' A few days afterwards, while the Parliament was still sitting, it was ordained that that " they should all be sent into Ireland, to several castles and palaces — there to remain during their lives ; each of them with two ser- vants to wait upon him, and having out of their lands and goods an allowance for their sustenance." Belknappe's was placed at the rather liberal sum of £>\o a year.' ' I Pari. Hist. 197 — 221 ; I St. Tr. 89 — 153. ' " The Parliament considered that the whole matter was managed by Tresilian, and that the rest of the Judges were surprised, and forced to give their opinion." — I Kennei, 263. This Parliament was rather unjustly called " The Merciless Parliament." — 4 Rapin, 49. Others more justly called it " The Wonder-working Parlia- itK'nt." — I Kennct, 262. ' 3 Tyrrell, 630, 632. ■• " 5th Nov. an. 13 Ric. II. To Sir Robert Belknappe, knight, who, by force of a judgment pronounced against him in the King's last Parliament assembled at Westminster, was condemned to death ; and all and singular the manors, lands, and tenements, goods, and chattels whatsoever, which be- longed to the aforesaid Robert, were seized into tiie King's hands, ai for- feited to the King, for tiie reason aforesaid : whereupon, the said Lord ihu King being moved with mercy and piety, and wishing and being desirous of t :i!^ i ! U n si6 REIGN OF RICHARD II. [1389. He was accordinjjly transported to Ireland, then con- sidered a penal colony. At first he was stationed at Drogheda, having the liberty of walking about within three leagues of that town.' He was subsctiucntly trans- ferred to Dublin ; and, after he had suffered banishment for nine years, he had leave to return to his own coun- try, and to practice the law in London." This mitigation was at first complained of, as being contrary to a sentence pronounced in full parliament — but it was acquiesced in ; and, although the attainder never was reversed, King Richard, considering him a martyr, made him a grant o{ several of his forfeited estates. He never again appeared in public life, but retired into the country, and, reaching extreme old age, became fi- mous for his piety and his liberality to the Church. \\y 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 the cathedral chuch there forever, for the soul of his fa- ther John, of his mother Alice, and for the souls of him- self and all his heirs." He died a few months afterwards. He was married to Sibbella, daughter and heiress of John Dorsett, of an ancient family in Essex. Holding estates in her own right, these were not forfeited by her husband's attainder ; and, bringing an action during his banishment for an injury done to one of them, the ques- tion arose, whether she could sue alone, being a married woman? But it was adjudged that, her husband being making a competent provision for tlic support of tlvi same Robert, towards whom he was moved with ]iiiy, did remit anl 'inloii tiie execution of tlie judgment aforesaid, at ihj reiiue-.t of very m.i of the prel.Ues, IV, l. : i i ■ * i i? 'r- i ii8 REIGX OF lUCITARD //. Li399- There arc many of \\v:> 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 in- teresting to Englishmen. While we honor Lord Somers and the patriots who took the most active part in the revolution of i6S8, by •which a King was ca;;liiered, hereditary right was disro- gr.rded, and a new dynasty was placed on the throne, we are apt to consider the Kings of the house of Lancaster as usurpers, an;! those who sided with them as rebels. Yet there is great difficultv in iustif\Mn'f the deposition of James II., and condemning the deposition of Richard II. The latter sovereign, during a reigni of above twenty years, had proved himself utterly unfit to govern tin- nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppres- sion; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandf.ither, was now almost unanimously resolved to submit no longer to his rule. I therefore cannot blame Chief Justice Thirnvnge for attempting to rescue tlie ci)y niDiiarcli was l)r()ii;;lu lortli, a[)])arL'le(l in Ills royal Vvibcs, tlic diadciu on his head, air! the seeplre in !iis li.uid, and was placed anion;; tlitui in a chair nf state." Ho aiUU, that, after a little pause, the Ivin;; ar()-.e frmi his seat, and spoke to the foilowinL; eh'ect : — " I assure inysell' that smne at this present, ami many hereafier, will account my case lamentable ; either that I have deserved this d^'jection, if it he just ; or if it 1)0 wrons^fid, tliat T could not avoid it. Indeed I do con- fess, (hat many tini'-s I have showed myself both less jn'ovident and less painful for the benelit of the commonwealth, than I should, or miy;ht, or in- tended to do liereafter ; and have in many actions more respected the satis- fyin;; of my own i)articular humor, than either ju>tice to some private persons, or the common i;()od of all ; yet I ditl not at any time either omit duty or coimnit grievance, upon natural dullne>,s or set malice ; but partly by abuse of corrupt counselor.-., jiartly by err.ir t)f my youthful jud^uiLnt. And now the remcniiirance of these ovor^ij^hts is so unpleasant to no man as to myself; and the rather because I have no means left, citlKr to recom- pense the injuries which I have done, or to testify to the world my reformed afl'ections, which experience and staycdncss of years hail already corrected, and would daily have framed to more perfecti(Mi. I5ut ^vhelher all the im- putations wlierewith I am char;;;e'l bo true, either in substance, or in such ([uality as they are laid ; or whether, boin^ true, they bo so lui lous as to enforce these extremities; or wheiher any other prince, especi, illy iu the lu'.U of youth, and in the s]iace of 22 years, the time of my unfortunate reiLjn, doth not sometimes, either for advant.iL;e, or u[io;\ displeasure, in as ileep manner grieve some particular subject, I will not now examine; it helpeth not to use defense, neither bootelh it to make complaint ; there is no place left for the one, nor ])ity for the other : and therefore I refer it to the judgment of dod, anil your less distempered considerations. I accuse no man, I blame no fortune, I complain of nothiuj; ; I have no pleasure in such vain and needless comfort-. ; and if I listed to have .-tood upon terms, I know 1 have great favorers abroad ; and some friends, 1 hope, at home. ll rii t20 I^FJCX OF RICIFARD IF. [»399. \ I ) Next da)', \\\\^\\ the Lords and Commons assembled in Westminster I lall, the throne bcini.^ vacant, and Ho- lingbroke still sittinij on the left side of it, occupying the up[)erm()st place on the Uuke's bench, this residua tion was produced and read. lUit, lest doubts should afterwards be started respectinj^ its validity, on the {ground that it was executed under duress, Thirnyn<:;c advised that articles should be exhibited, channnj:^ Richard with miscouhict, whereby he had forfeited the crown, and that sentence of deposition should be formally passed upon him by the states of the realm. Accord- ingly, a sort of indi.lment was produced, consistiiu; of no fewer than thirty-three counts, whicli char^^ed the unhappy Richard with many very grave and some rather frivolous offenses. We do not see how this step mate- riall)' legalized or form.ilized the proceeding, for he was never called upon to plead, and he had no op[)()rtunity of urging any defense. The Record that was made up, after setting forth the articles, thus proceeds: — " And because it seemed to all the estates of the realm, being asked their jutlgments thereupon, as well severally as jointly, that these crimes and defaults were suflicient and notorious to depose the said King, con- sidering also his own confession of his insufficiency, and other things containetl in the said renunciation, the said states did unanimously consent that, ex abiiiuianti, they should proceeed to a ileposition of the said King." Thirnvnge and .several other commissioners were then appointed to pronounce the deposition, and it was pro- nounced accordingly. Next followed a form which wc should think very unnecessary and valueless, but to Avhich great importance seems to have been attached : — " Furthermore," says the Record, " the said states, willing that nothing should be wanting which might be who would have been ready, yea, forward in my behalf, to set up a bloody and doubtfid war; hut I esteem not my dij^nity at so hi_i;h a price, as llic hazard of so fjreat valor, the spiliinfj of so much En;';lisli lilood, aud the spoil and waste of so llourishiiii^ a realm, as thereby mi;;ht have been occa- sioned. Therefore, tliat the commonwealth may rather rise by my fall, than 1 stantl by the ruin thereof, I williuf^ly yiehl to your desires; and am here come to (lispossi->s myself of all pubHc authority and title, and to make it free and lawful for you to create for your kinjj, ilenry, Duke of Lancaster, my cousin tjerman, wliom 1 know to be as worthy to take that place, a.s I see )iiu willing to ^ive it to him." t399.J WILLI A . \r rJIIRN YXGE. lai of value or oiii^ht to h-; required touching the prcmtses, beiiij^ severally iiiten();.;atetl thereupon, tlid constitute the same persons that were before nominated commis- sioners to be their prcjcurators, jointly and separately, to resi<;n and jrive back to the .said Kin^ Richard the homage and fealty to him before made." lUit, without waiting for this intimation, Bolinfjbroke, by 'i'hirnyn<;e's advice, seated himself on the throne, sayin;^ " In the name of Fadei, Son, and Moly Ghost, I, Henry of Lancaster, chalen;;e this rewme of Yn^jlonde and the croun with all the members and appurtenances thereto bel()n^•in^^" Altl\()ii<>h Henry now took upon himself the full exer- cise of royalty, and forthwith in his own name summoned the parliament tcv meet, still, to perfect his title, Thir- nyni;e and his brother mamlatories went next day to the Tower Ui resij^n to Richanl the homaj^^e and fealty of the nation, and drew up with his own hand a report, still extant, of what then occurred, which is interesting both to the philoloj^ist and tile historian, as it affords us a genuine' specimen of the construction and orthography of our language in the fourtecMith century; — " 'i'he Words whicli William Thirnynge spake to Monsire Kiehard, late Kin"; of ICngland, at the Tower of Lon- don, in his chamlu'r. on Wednesday next after the feast of St. Michael the iXichangel, were as folhnv : — *' Sire, — It is wele know to zou,' that ther was a parle- ment soinon'd of all the states of the reaume for to be at Westmystre, and to begin on the Tuesday in the morn of the fest of St. Michel the Archangel, that was /esterday ; by cause of the which summons all the states of this lond were there gadyr'd, the which states hole made thes same persones that ben conicn here to zowe now, her procurators, and gaven hem full autorite i.'.d power, and charged hem for to say the wonls that .vo shall say to zowe in their name, and on their behalve ; that is to wytten.the Jiishop of Seint Assa forersbishoppes and bishoppes, the ^Vbbot of Glastenbury for abboL:, and priours, and all other men of holy chirche, seculers and rewclers, the Earlc of Ciloucestre for dukes and erles, the ' It is curious that the letter z then in England, as long afterwards ia Scotland, stood for the sound now denoted by/. 1= p t: III ,'p iff; ^1 I! :yij '! \ !i I 1 f, t i| ? ; ' ^ 4 t i 1 ; ■ ! J T ■ 11 I 122 REIGN OF RICHARD II. [i399- Lord of Berke'.ey for barons and banerettcs, Sir Thomas Irpyngham, chamberlcyn, for all the bachilers and com- mons of this lond be south ; Sir Thomas Grey for all the bachilers and commons by north, and my felawe John Markham and me for to come with hem for all thes states. And so, sire, these word's, and the doing that we shall say to zowe, is not onl_; jh our wordcs but the doyngs of all the states of this lond, and our charge in her name. — And he answered and said, that he wyste wele that we would noght say but as we were charged. — Sire, ze remembre zowe wele that on Moncday, in the fest of Scint Michel the Archaungel, ryght here in this chamber, and in what presence ze rcnoun'^cd and ccssed of the state of kynge and of lordcship, and of all the dignite and wyrship that longed thereto, and assoiled all zour Icigcs of her Icigance and obeisance that longed to zowe uppe the fournie that is contened in the same re- nunciation and cession, which ze rodde zour self by zour mouth, and affermcd it by zour othe, and by zour owne writing. Upon which ze made and ordeincd your pro- curators the Ersbishop of Zork and the Bishop of Mere- ford for to notifie and declare in zour name thes renun- ciation and cession at Westniynstre to all tiie states, and all the people that was there gad}'r'd, bycause of the summons aforesaid, the which thus don yesterday by thes lords zour procuratours, and wele herde and under- stouden, thes renunciation and cession were plenelich and frelich accepted, and fuliicii agreed by all the states and people aforesaid. And over this, sire, at the in- stance of all thes states and jjcopje, there were certain articles of defautcs in zour govemiuice zeilde there, and tho wele herd and pleinelich r.nderstouden to all the states aforesaid, hem thoght hem so trewe, and so notoric, and knowcn, that by tho causes and by no other, as thci sayd, and havyng consideration to zour own wordcs in zour own renunciation and cession, that ze were not worthy, no sufficient ne able for to governe, for zour own demerites, as it is more pleinelich contened therein ; hem thoght that was reasonable and cause for to depose zowe, and her commissaries that they made and ordein'd, os it is of record, ther declared and de- creed, and adjudged zow for to be deposed, and pryved I399-] V/ILLIAM THIRN YNGE. 133 zowe of the astate of king, and of the lordeship con- teined in the renunciation and cession forsayd, and of all the dignite and wyrshippe, and of all the administration that longed thereto. And we procurators to all thes states and people forsayd os we be charged by hem, and by her autorite gyffcn us, and in her name zelde zow uppe for all the states and people forsayd, homage, leige, and feaute, and all leige. ince, and all other bondes, charge, and services thar long thereto, and that non of all thes states and people fro thys tyme forward ne bere zowe feyth, ne do zowe obeisance os to that king. — And he answered and scyd, that he lokcd not ther after, but he scyd, that after all this he hoped that is cosyn wolde be gude lord to hym." When Parliament again met on the 6th of October, under new writs from the Duke of Lancaster, without any change in the members,' Thirnynge gave an account of the manner in which he had executed his (';ity in sur- rendering the allegiance of the nation to the discrowned King ; and, then the oaths being taken to Menry IV., the march of the government proceeded as if tlie lieir appa- rent had been proclaimed on the demise of his father. Thirnynge received a new patent as Chief Justice of the Common I'loas, and continued to fill this office dur- ing the whole of this reign, without any increase to his dignity, but with evcr-grovv'ing respect from the public. He did not again mix in politics, even so much as Sir Wm. Gascoigne, who became Chief Justice of the King's j^ench. During the insurrections of the Percys and Owen Glendower, he quietly continued administering justice at Westminster; and the only battles he witnessed were a few in Tothill Fields, between champions on trials of writs of right, when he had his brethren, attired in their scarlet robes, attended to see that the laws of the ring were observed, and to award the fruits of victory to the successful side. He was summoned to every parliament ; but he merely gave his opinion on juridical questions, when consulted, for the guidance of the House of Lords. ' Afterwards Ihe contrivance resorted to when a meeting of tlie states was wanted and could not be sununoned l)y tlie Kin!;, wliose authority was to be recognized, was to call tlie meeting a Co.\vi'.NrK)N — and then, a King l)oing put on the throne, to turn it into a I'arli.iiiient, by an act passed by his au thurity, and lli.u of the two Houses ; as in lOoo and loSu. I! 124 REIGN OF HENRY IV. [1413. Although he was sworn a privy councillor, the King being his own minister, this was little more than an honorary distinction to him. Thirnyngc, on the death of Henry IV., had the satis- faction to see his son's title universally acknowledged, and the Lancastrian line seemed for ever established on the throne. It was expected that this venerable magis- trate would now be displaced to make way for some one recommended by the profligate companions of the new King when Prince of Wales ; but he was continued in his office, with high compliments to his ability and integ- rity,' and he was again sworn of the Privy Council, along with other faithful servants of the late King, who were thanked for having tried to repress the excesses of the heir apparent. Within a year he was attacked by a dis- ease which compelled him to resign, and he expired long before the commencement of the fatal War of the Roses. Mad this been foreseen, it would probably have induced him to advise his countrymen rather to submit to the capricious tyranny of Richard, than to encounter the danger of a disputed succession, which was for many years to deluge the kingdom with blood. I believe it was long since there were any Thiniyiiges in any part of England ; and we have an instance of a name being uttcrl)- extinguished — while other families have multiplied so as to form a crowded population in extensive districts, and, by migrations, are found in the remotest parts of the kingdom." The great contemporary Juilge who gave lustre to the reign of Henry IV., was SiR William 'Gascoigxi:' — fa- miliar to us from the anecdote of his having committed the Prince of Wales to prison, and from being a conspic- ' Pat. I Men. v. p. i. m. 36. * Of course I do not refer to names taken from trades, such as Smith, nor to i>atronyniics, such as '/,>/inso)i, wliich may have been assumed and borne by different faniiUes, wholly unconnected wilh blood. ' I have jirefened the most miniern spellini,' of this name, but it is found spelt in more than twenty other difierent mannei -Gaskin, Gauscin, (ias- <;oyn<;e, Gaseoiijne, (iascoyn, Gascun, (Jasken, Gaskyn, Gaskun, Gaston, Gas- tone, G.istoyn, (jastoynge, Gasquin, (Jasiiuyne, Gawsken, Vascon, (Juascoyn, Gaskoigne, and De Gas(]uone. For Chris/iatieuce to those thoughts Which honor and allegiance cannot think." However, the fatal answer was given, — " Think what you will ; we seize into our hands His plate, his goods, his money, and his lands."' Accordingly, a supersedeas was passed under the Great Seal, revoking Gascoigne's authority to sue as attorney for the banished Duke ; and the whole of his property, real and personal, was taken possession of as forfeited to the Crown.' ' Shaks. Rich. II. act ii. sc. i. ' The revocation of Gascoigne's authority to represent Henry, was made one of the charges against Richard, for wh-'jh sentence of deposition was pronounced against him. "Art. 12. — After the said King had graciously granted his letters patent to tlie Lord Henry, now Duke of Lancaster, that in his absence, while he was t)anis)ied, his general attornies might prosecute for livery to him, to be made of all manner of inheritance or succossioa I I400.J WILLIAM GASCOIGNE. 127 Gascoigne sent intelligence of this outrage to the youg Duke of Lancaster, who, as soon as he had made the ne- cessary preparations, landed at Ravenspurg ; 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 declared for l;im, he acted in concert with Chief Justice Thirnynge in smoothing his way to royalty. Henry IV. being proclaimed King, one of the first acts of his reign was to appoint Gascoigne Chief Justice of the Court of King's Bench, and to confer upon him the honor of knighthood.' Never was the seat of judgment filled by a more up- right or independent magistrate. He was likewise cele- brated for the soundness 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 disinterestedness, fortitude, and magnanimity, showing an enlightened sense of what is fit, and a deter- mination, at every risk and every sacrifice, to do what duty requires, please and edify all future generations. Therefore, although the ashes of Sir William Gascoigne have reposed upwards of four centuries beneath the mar- ble which protects them, and although since his time there has been a complete change of laws and manners — when wc see him despise the frown of power, our sym- ^ \\ belonging to him, and tliat his homage should be respited paying a certain reasonable fine — he injuriously did revoke the said letters patent, against the laws of the land, thereby 'iicurring the crime of perjury." — i St. Tr. 143. ' See Dug Chr. Ser. — The exact date of Gascoigne's appointment to this office has not been ascertained ; and some have deferred it for a year or two, chielly o'- the ground that in the first parliament of Henry IV., the confes- sion of John Hall, concerned in the murder of Thomas, Duke of Gloucester, by smolhtu'ing him between two feather-beds at Calais, was taken by Sir Walter Cluplon, who had been Chief Justice of the King'j Bench, in the reign of Richard II., and that the same Sir Walter Clopton was summcned to 'jjarliament the following year. But all this is consistent with his having been removed to an inferior judicial office ; and Sir William Gascoigne's opinions as Chief Justice, are to be found in the Year-Books from the very commencement of Henrys reign. ' See references to them in Cjascoigne's Year-Book. part vi., reign of Hen. IV. and Life in the l)iographia Britannica. ■:i i I i REIGN OF HENRY IV. [1405- 4> pathies are as warmly excited as by the contemplation of a Holt or -^ Camden. The first recorded instance of an independe'^t spirit being displayed by him to the wonder of his con- temporaries, was when he attended Henry IV. to the north, to assist in putting down an insurreci ion, planned by Scrope the Archbishop of York, and Thomas Mow- Miray, son of the banished Duke of Norfolk who had died abroad.' The King, having made these two rebel- prisoners, directed Gascoij^ne, as Chief Justice of Eiig- hind, immediately to sit in judgment upon them, and, by his own authority, to sentence them to death. But, notwithstanding repeated solicitations, he peremptorily refused, saying, " i\[nch am 1 behi'ldcp. to your High- ness, and all ycir lawful commands 1 am bound by my allegiance to obey; but over Liie life of the prelate I have not, and your Highness ,M,nnr-!; j^ive me. any juris- diction. For the other prisonei% 1. . is a peer of the realm, and has a right to be t:"'v more obsequiov agent was found by his peers." A in Sir William Ful- \h\- ih-n'pc, a worthlc;;S Puisno ju!^l;;c, who, in the hope of rioeinii Gascoigne disgraced, and of succeeding to the ofri':e Qt" Chief Justice, having placed himself on a high throne \\\ the Archbisho;.'s palace-, called both the pris- oners before him, and, without indictment, or form of triiil, condci.. ;;ied them botii to be beheaded. The sen- tence was im'nediatcly carried into executioii." When the ParliamenL was afterwards called upon to ratify this proceeding, the i.^rds said it demanded inquiry and de- liberation ; and the matter was thus laid at rest forever." It is pleasing to reflect that Fulthorpe was disappointed 'It is a C;iriou>' fact tliat the military functions of the Cirand Justiciar, although no longer belonging to the Chief Justice of the King's Uench, virtitlc LijT'cii, were s(5metinies specially assigned to him. Thus, in the re- bellion of the Percys, two years befoje, Chief Justice Gascoigtie had been sent to quell it, fortified with a commission of array, which empowered him to raise forces in the northern counties. The authority to press into the •service, extends to "persons of what state, degree, or condition what yciever." — Rym. Fad. vol. viii. 319. * Rymer's Fred. vol. viii. 319. •a le]3rous disease, which soon after attacked the King, was supposed to be a visitation of I leaven upon him for the violent death of the Archbishop ; while Judge Gascoigne received many blessings for refusing to be concerned in this sacrilege. — .Stow's Annals, fol. 333 ; Mayd. Hist. Marty. : Richard Scrope. Ang. Sac. vol. :i. 370. is) I4I0.] WILLIAM GASCOIGNE. X29 in his hope of promotion, and that the virtuous Chief Justice continued to hold his ofifice with increased repu- tation.' Still enjoying the confidence of the King, Gascoigne was employed by him "to treat and compound with, and offer clemency to, the adherents of the Earl of Mr.Oiumberland ; likewise to receive their fines, and pay them into the Exchequer."' At last, all the at- tempts of the discontented Barons were effectually de- feated, and Henry's throne was as firmly established as if it had been based on hereditary right. I 'is chief anxiety now arose from the irregularities of his son. tlic Prince of Wales, who, having distinguished himself by military skill and bravery in the early part of tlie reign, had sub.-,cquenl:ly abandoned himself to dissi- ])ation, and had consorted not only with buffoons, but witli persons accustomed to minister to their profligate expenses by forced contributions from travelers on the liighways. 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 be- gin by showing that this is not a poetical fiction. For- merly, every thing recorded by historians was believed : now, every thing is (iL-nicd 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 victory at Agincourt, has lately been referred to thu same class of narrative as the landing of King ]5rute after th lege of Troy, or the exploits of King Arthur and the ...lights of the Round Table.* 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 Gaso>igno's death. The ob- jection would have been very strv>ng if in his lifetime there had been newspapers, magazines, annual registers, and memoirs, detailing all the proceedings of courts of justice, and all the occurrences of political and p>rivate ' Rot. Pari. iii. 606, viii. 60s : Wals. 373 ; Hall, ii. 310. * Rymt r's Fitd. vol. viii. 5,^.\ * Sec Tyler's Life of Heikmbling and prorogation nf parliaments, and other such mailers as were considered " of record," — many interesting events, the universal subjects of con\'i'rsation when they occurred, long rested on tradillon.and were orally transmitted by (Jiie genera- tion to another, till a chronicler arose, who embraced the period to which they were ascribed, and who related them substantially as they happened, although he might be chargeable with some inaccuracy or exaggeration. The first book in which there is an account of the im- prisonment of Henry the Prince of Wales by Sir W. Gascoigne, was printed in the year 1534; but no inter- vening writer could reasonably have been expected to relate it. V\^e should remember that, during a great portion of this period, literature, which had made won- derful progress for half a century before, was nearly extinguished by the War of the Roses, and that Sir Thomas More's History (ascribed by some to Cardinal Morton), the only historical work in the English lan- guage previously published, begins with the reign of Edward V. Sir Thomas Elyot, who thus narrate^ the transaction in his work entitled "TlIE Governor," dedicated to King Henry VHI., was no romancer, but introduces it as a true statement of facts, among other historical anec- dotes which cannot be questioned : — "The most renouned prince king Henry the fyfte, late knynge of Englande, durynge the lyfe of his father was noted to be fiers and of wanton courage ; it hapned, that one of his seruauntes, whom he fauoured well, was, for felony by him committed, arrained at the kynges benche : whereof the prince being advertised and in- 1412.] WILLIAM GASrOIGNE. 131 censed by ly^litc pcrsoncs about him, in furious rage came hastly to the barre where his scruente strode as a prisoner, and commaunded him to be vngyued and set at libertie : wlicrtat all men were abashed, reserved the chief Justice, who humbly exorted the prince to be con- tented, that his seruaunt mought be ordred, accordyngt to the anciente lawes of this realme : or if he wolde haue hym saued from the rigour of the lawes, that he shulde obteyne, if he rnoughtc, of the knyge his father, his gratious pardon, whereby no lawe or justyce shulde be derogate. With whiche answere the prince nothynge appeased, but rather more inllamcd, endeuored hym selfe to take away his seruant. The iuge considering the periUous exami)lt; and inconucniencc that mought there- by ensue, with a val)ant spiritc and courage, commanded the prince vpon 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 iudgment, men thynking that he wold haue slayne the iuge, or haue done to hym some damage : but the iuge sittynge styll without mou- ing, declaring the maie.stie of the kynges place of iuge- ment, and with an assured and bolde countenaunce, had to the prince these wordes followyng: " ' Syr, remembre )'ourseire, I kepe here the place of the kytig your soueraine lurde and father, to whom ye owe double obedience : wherfore eftsoones in his name, 1 charge you desyte of your wylfulncss and vnlaufull en- terprise, & from hensforth giue good example to thoser whyche hereafter shall be your propre subjectes. And nowc, for your contempte and disobedience, go you to the prysone of the kynges benche, whetevnto I com- mytte you, and remayne ye there prysoner vntyl the pleasure of the kynge your father be further knowen. " With whiche wonles being abashed, and also won- drynge at the meruaylous gravitie of that worshypfulle 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 affairs. Whereat he awhyles studyenge, itter as a man all rauyshed with gladnes, holdynge his eien and handes V \ ;.55 Hi' ImII I!' m ii. ( I 'a I '^1 > I lit '(■ IM:- ^ if 'h 13a REIGN OF HENRY IV. [1414. vp towards hcucn, abraidcd, sayinj; with a loud voice, * O mcrcifull God, howe mochc am I, abouc all other men, bounde to your infinite goodness, specially for that ye haue gyuen me a iudge, who feaicth nat to minister iustice, and also a sonne, who can suffrc scmblably ; and obeye iustice !' " Hall, whose Chronicle was published at the com- mencement of the reign of Edward VI., 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 Hosworth. Says he — " For im- prisonment of one of his wanton mates and unthrifty playfaires, the Prince strake the Chief Justice with his fist on his face ; for which offense he was not only com- mitted to streight prisonc, 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 Robert Catlyne, Chief Justice of the King's Bench, and Sir John Whidden, a Puisne Judge of that Court, in the beginning of the reign of Queen Elizabeth, w.io, sticking to tlie Ykar Books, probably had never read -Mther El\-ot or Hall, and who knew nothing of Gascoignc except by the sure tradi- tions of Westminster Hall. Cronipton, an accurate juridical writer, who then published a book entitled " Authoritic et Juristliction des Courts," in reporting a decision of the Court of King's Bench, saj-s : — " Whidden cites a case in the time of Gascoigne, Chief Justice of England, v/ho conu.iitted the Prince to prison because he would have taken a prisoner from the bar of the King's Bench ; and he, very submissively obej-ing him, went thither, according to order: at which the King was highly rejoiced in that he had a judi; who dared to minister justice upon his son the Prince, and that he had a son who obeyed him." Catlyne, C. J., is then represented as assenting and re- joicing in the praises oi his predecessor. ' The drama making rapid progress, and historical plays ' 4th ed. p. 4t), •4th ed. 1594. p. 79. "Whidden vouchf tin case en temj. (lascoi^jne Chief Justice D'Engiitierr, <]ne conunit le I'riiice (que vcjilc r pri.-, un prisoner del barre in Uanco Regis) al prison ; (jue luy obey hum. Itiuent, et K Hi E it 1412.] WILLIAM G A SCO I ONE. m o cominjT into fa.shio!i, there was soon after produced a very popular piece, with the title of " Ilcnry the Fyftc, his Victories, containing the honorable battle of Agin- court, &c." The first act exhibits many of his pranks while he was Prince of Wales, with the scene between him and Chief Justice Gascoigne. Tho author follows Hall in supposin<; that a blow had actually been inflicted, ' — which 1 make no doubt was an exaggeration. Of one (^f the representations of this play we have a very amusing account in a book entitled " Tari.KTON's Jkst.s," published in tl'.c reign of James I. The famous comedian of that name, who died in 1 592, had been long the tlelii,dit of the i)ublic in the part of the "Clown," — tlisregarding the precept to "speak no more than was set down for him." But, though tliis was his forte, he could, on a pinch, take a graver character, and personate a Gho -t or a Judge. It so happened that when " Henry the Fyfte" had dr.nvn a crowded house, it was dis- coveri'd that Lord Chief Justice Ga .coigne had got so excessively drunk that he could not take his i^lacc upon the bench, and Tarleton agreed to " sit for him," still retaining his own part of the Crown, who, luckily, was not to appear in the presence of his lordship. The i'.uthor, after intimating tile difficulty into which the company had been thrown, anil the expedient resorted to, thus proceeds : — " In this play the judge on the bench was to receive a blow of Prince 1 lenry, who was represented by one Knoll, another droll comedian of those times; and, when it was to be done, he struck the Chiif Justice Tarlton such a swinging box on the ear as almost felled him tn the ground, and set the whole house in an uproar of merri- ment. When 'Tarlton the Judge' went off, presently after entered ' Tarlton the Clown ;' and, according to that liberty wherewith the players in those days were in- dulged, of intrutling interrogatories of their own in the midst of their acting, he \ ry simply and unconcernedly asked the occasion of that laughter, like one who was an utter stranger to it. * O,' said another of the actors, ala auxi a son commandment ; in que le Roy grandemcnt rejoice in ceo quil avoit Justice (]ue osast minister justice a son tits le Prince et que U avoit Fits ijue luy ol)oy," 1* III' ' ■ i; ; m «34 A'/:/c;.v ()/'• iir.xiiv iv I n-v ' hadnt thou been horc thou hadst seen Priucc Henry hit the Jutli^a; ii terrible box on the ear.' ' What ! ;;triicc a Ju(!;^fe !' quoth Tarltnn. ' Nolliin j less.' s.iiel t'other. 'Then,' replied he, ' it mu:t be terrible to the Jud^j, since tlie very report of it so terrifies me, that niethinUs the place remains so fresh still on my cheek that it burns again.' Tliis, it seems, r.iised a ^^r^Mter acilamation in the house than there was before ; and this was one ex- ample of the extempore wit or humor for which 'J'arlton was so much admired and remembered many years after hi.-; death." The case whicli I advocate is, I think, materially streni^lheneil l)y the evidence of WlLiJAM SllAKyi'KARK, who, in his hi.Uorical plays, allhouj^h \ery careless about dates, is scrupulous])- accur.ile about facts, \.\\\(\ never in- troduces any which do not rest upon what he considered good authorit)' ; inasmuch that our notions of the 1*1 an- ta'^enet rei.^•ns are drawn from him rallier than from llol- linshed, Rapin. or Hume. On the f.uth of tradition, or of books which he had reail, he evith-ntly had in the truth of the storj- a stron;; belief, wldch is constantly breaking out. Thus, v»hen the Chief Justice is hrst seen at a distance, Falstaffs 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 diologue : — Ch. Justice. " I would liis majesty had called ine with him ; The SLivlco lliiil I Uuly dlil lii.i life llalh Icfl mc o])Cii to all iujiuics." IVo.r^vick. " Indeed, I ihiiili ilic young Iving loves you not." C/i. yustice, " I know ho dolli not ; and do .irm myself To wclt'omu t!ie conililion of lln' time ; Which cannot look more hideously upon me Than I have thauu it in my fantasy. Sweet jiiinccs, wiiat I did 1 ilid in honor, IamI by tile iniiiartial cnnducl of my soul ; And never shall you see that I will beg A ragged and forstall'd remi^.^ion. If true and upri^jlu iiiiioeency lail me, I'll to the Kini^ my master that is dead, And tell him who hath sent me after him." • Second Part of Henry IV. act i. sc 2. {'; •. i; |I2. hit vi .'I iicr. nice the ins in ton fter 1412.J / VILUA M GA SCO/GNE. 135 When the I'llncc enters, as Henry V., he tlius addresses the Chief Justice : — "Yoti (irc, I tliink, n'^surM I love vou not." Ch. yuitice. " I am as>ur'il, if I be ineasm'd ntjlitly, Voiir miijcsiy lialli iic juht cause to hate me." "No! I low iiii);lit a prince of my ^^reat hoiies forget Honrcat imiij^iiilics you laid upon mc ? Wiuit ! rate, rchukc, and n)u;;ldy send to prison 'I'lie imnu'diate lii'ir of l-;n;;land ! Was this easy? May tliis lie wash'd in Lctiic, anri foi^;oUcri ?" CA, yuslicif. " I tlicn did use ilie pei^on of your father ; The inirt^e of ins power lay then in me : And, as you are a kini;, spaUe in your slate, Wiiat I have wish your lionors may increase. Till you do live to see a s(m of mine OITend you, anil obey you as I did."' It was iin;i;^ine(l that the jiiithority of Sh;iks[)care on tliis question was demolished, and a ^reat triumph was claimed over him by the assertion that Sir William Gas- Coi;_;iu.' at this tiiiu; coidd not feel any ajiprchension of the earthly consc'([ii<'iiri's of any tleed he hid done in the bc)dy. .IS he was sLj"pin;.^ in Ids i^ravi.', liavinj^ died some moiilhs beiore his p;itron, llenr)' IV. ; but 1 shall here- after prove to demonstration that Sir William (iascoi^fne survived Henry IW . sever.d years, and actually fdled the office of Chief Justice of the Kiii'^'s Bench under Ilenry In the same reckless spirit t)f cpiestionint; what has lon^ been taken for simple truth, several who were not ' Second I'art of Henry I\'. act v. sc. 2. '' Henry v., havinii; becijuie Kin;^ by his father's death on the 20th of March, 1413, was crowned on the ijth o cnronicler iclc .f Ap md bioLrrathers, a;;ree that the l< illou imi ; and all historians. iiiowin'' ilav, wlien his counc :il viis sworn in (for still tlie )f Knidand were not. considered as fully en- titled to rule before their cuiuiialioii), he made a speech in which he re- nounced his former lewd com()anions, he for^.ive his lather's councillors who liad offended him Ijy IryintJ to correct his faults, and he rea|)pointed such of the judj^es as had best done their duly, anil were most in his father's con- fidence. — See Wals. 38'j. ; Otturb, 273. ; Elm. 17. TrusseU's Continuation of l>aniel, introducini; (liiscoii^ne's name and makes Henry, after relatinfj ilincnt, thus conclude : " Fur which act of justice I sliall evci ti le comm hold him worthy of tlio place and my favor, anily. and particul.ulv his 'wo wiveis . the ;t»., .... ^^«^..a.j«aturday. for a new f March, )und one ce of our >ur Lord name is s of the lonth of )ns must Sir Wil- )ecn ap- belicve [3, when still in- ^ of the isplaced having receive Dsed re- )nd all ast will astical mode es wish 1419." 3th of de on ted on Chief H19. stator lough »M iili'iitity •-•^ , the 1419] WILLIAM GASCOIGNE. 141 We must, therefore, inevitably come to the conclu- sion, that Sir William 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 vol- untarily resigned his office, and spent his last years in retirement, preparing for the awful change which awaited him. On withdrawing from the Bench, 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 ex- tant 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 Pontifract."* 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."" He was buried in the parish church of Harwood, in Yorkshire, near Gawthorp. A tomb was afterwards erected there to his memory, wliich represents him in a kneeling posture, in his 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 wliich the following words arc still legible : — " Orate ]iro (mlielmo Gascoyne et Elizabetlie et Johanna; uxoribus ejus llic jacel (jiilicliiuis Gascoyne nupcr Capitalis Justiciar, de Banco Ilenrici nuper Reikis Ant^l. Obiit Die Dominica 17 Die. A. D. ."■* latter of whom was then alive, an;l in her will, subsequenetly nrade and pre- served in the same re^jister, styles herself " widow of William Gascoigne, Irt'e Chief Justice." — See Tyler's Life of Henry V. vol. i. 379. ' See Tyler's Life of Henry V. vol. i. 379. ^ The I'ell l^oli, I4tli ^hlrch, 1420, within a half year of his de.ath, states I'li; re[)aynient to his executors of a sum which he had advanced without S'.'curity to the Royal Kxcheipier. ■' There is a good portrait of him from the monument, in the Gentlemen's Mas:;:i/ine, vol. xli. j). 566. ■* I'lie Gentlemen's Magazine, vol. xli. p. C23, professes to give this inscrip tion, but interpolates, after " .\. I).", " 1412, 14 Hen. Quatrc." I ^.l Al El ». i [ 142 REIGN OF HENRY VI. [1419. The rest of the brass phxte 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 Rutlington, in the county of York; and his wife Joan was the daughter of Sir William Pickering, and relict of Sir Ralph Greystock, 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 Gas- coigne as an En^liih Judge, and reluctant to bid him adieu for oiher;, o*' much less celebrity and much less virtue. ill I , \\ i II" r 'I' w ■ f ! »mQI CHAPTER IV. CHIEF JUSTICES TILL THE APPOINTMENT OF CHIEF JUSTICE FITZJAMES BY KING HENRY VIII. SIR WILLIAM HANKFORD, the next Chief Justice of the King's Bench, although he was eminent in the law during three reigns, is hardly recollected for any thing he did in his lifetime, except the ingenious and successful manner in which he plotted his own death. He is one of the " Worthies of Devon " for whom his countrymen claim the merit of having committed the Prince of Wales to prison ; and he certainly was born at Amcrie 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 v/as called serjeant in the 14th of Richard II., was made a Puisne Judge of the Common Pleas in 21st of Richard II., was promoted to be Chief Justice of the King's Bench in the ist of Henry V.,' and was reap- pointed to that office in ist of Henry VII.' He had been a well-conducted man, but he was of a melancholy temperament, and he became tired of life, notwithstanding the high position which he occupied, and the respect in which he was held. He wished to shuffle off this mortal coil, but he was afraid to commit suicide in any vulgar way, at a time when a verdict of • There is some doubt as to the exact date of this promotion. It must have been subsequent to 22d March, 141 3, when Henry V. issued writs for his first parliament to which Sir William Gascoii:;ne was summoned ; and prior to 1st Heccmher, 1413, for on that day writs were issued for a new parliament to meet on the 29th of January following, and to this Sir Villiam Hankford is summoned as Chief Justice. * Dugd. Chr. Ser. f If' , I'' k ;' 1 M j, '!; liil t i r s I* ! / 144 REIGN OF HENRY VI. [1422 — fclo dc sc always followed such an act, and tlit.' body of the .supposed delinquent w;i.s buried in a cross road with a stake thrust tliroii^h it. lie at last resorted lo this novel expedient, by which he hoped not only that the forfeiture of his goods would be saved, but that his family would escape the auLiuish and shame arising from the be- lief that he had fallen by iiis own hand. — Several of his deer having been stolen, he gave strict orders to his keeper to shoot any person met in 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 Di:V0N') *' is authenticated by several writers, and the constant traditions of the neighborhood ; and I, myself, have been shov.-n the rotten stump of an oak under which he is said to have fallen, ancl it is called Hankfoud'sOak to this day." His monument stands in Amerie church, with the fol- lowing epitaph inscribed upon it : *' Hie jacel Will. Ilankfonl, Miles, quondam Capitalis Justitiarius Domini K. dc Danco, c]ui oLiit duodecimo Die Decembris .\ano Doinin. 1422." His figure is portrayed kneeling; and out of his mouth, in a label, these two sentences proceed : — 1. " Mi>erere nici Dcus, secundum mat^nam miscricordiam tuam !" 2. " Ueati qui constodiunt judicium et faciunt juslitiam omni tempore." Fuller, in a true Christian spirit, adds: " No charitable reader, for one unadvised act, will condemn his memory, who, when living, was habited with all the requisites for a person of his place." ' During the reign of Henry 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 oflice of Cliief Justice of the King's Bench continued to be held by very obscure men, — Sir William Cheyne,' Sir John Ivyn,* and Sir John Hody,' — who seem decently to have ' Page 362. ' Fuller, i. 281, * 31st January, 1424-5. * 20th Januar)', i43')-40. * 13111 A]-)ril, 1440. It would seem in liis time tlie jud^je's salaries had been l' 'K^ht to re ■; lire an increase, as we meet with this entry : " Joliannes ! ! J 1: 1462-] JOHN MARKHAM. 145 discharged their judicial duties, without gaining distinc- tion either by decisions or law reforms, and without mix- ing in any of the political struggles which agitated the country. The reader will therefore willingly excuse me from infiuiring iiUo their birth, their education, their marriages, and their places of sepulture. Next comes one of the most illustrious of Chief Jus- tices. Sir John of Fortescuc/ for ever to be had in re- membrance for his juilicial integrity, and for his im- mortal treatise Di: LAlJDiliVS T^EGYM Angi.LK. But, as hi; held tlie Groat Seal of England while in exile, although he never tilled the "marble chair" in West- minster Ilall. I Imvc already sounded his praise to the best of my ability in the LlVES OF Tlir: ClIANCKM-ORS.'" He held the office of Chief Justice above twenty years with uni\'ersal applause. During the latter half of this period the War of the Roses was raging; and he, being a tlevoted Lancastrian, not only sat in judgment on Yorkists when indicted before him, but valiantly met them in the field. At last, after the fatal battle of Tow- ton, where he fought by the side of Morton, afterwards Archbishop of Canterbury, he fled into Scotland, and, Edward IV. being placed on the throne, he was super- seded by a Yorkist Chief Justice. This was Sir JOIIN Markham," of whom some particulars are known which may not be uninteresting. lie wus descended from an ancient family (the Mark- hams of that ilk) who had been seated at Markham in Nottinghamshire from time immemorial, possessing a ;;mall estate which had remained without addition or diminution for many generations. John, born in the leign of Henry IV., not contented to plow his pater- nal acres without being (although entitled to coat armor) more wealthy than yeomen and merchants who lived near him, determined to eclipse his ancestors by following the law, which was now becoming the highway to riches and distinction. Having been called to the bar when very young, by great industr)-, joined to great sharpness, he soon got into extensive practice, and began Ilody Capitalis Justic. habet eXL niarcas aniiuas sibi coiicossas, ad statum suuiii liccoitiiis inamitcnenilum." Tat. iS Henry VI., p. 3. m. 5. ' 25th Jan. 1442-3. I, — I ). * Vol. i. ch. xxii. 13th May, 1462. I ^ .; l):' f 1 V .* i' ^' 1 f ,■ .. ill I ^^ 146 J^/CKJX OF IIJLVRY VL ['442— to realize the prospects which liad dazzled him when a boy. In the year 1444 he was pi ;cd at the head of his profession by being made King' Serjeant, and soon after accepted the office of a Puisne Judge of the Court of Kind's Bench, probably hoping ere long to reach the dignity of a chiefship. Such hopes, however, arc often delusive. He remained a puisne nineteen years, and would have died a puisne but for the civil war which broke out respecting the right to the crown. Me took, very honestly, a different view of the controvi'rsy fnMii his chief. Sir John Fortescue, who had actually written pamphlets to prove that Richard II. was rightfully de- posed, that Henry IV. had been called to the throne by the estates of the kingdom and the almost unanimous voice of the people, and that now, in the third grucration, the title of the House of Lancaster could not be ques- tioned by any reasonable politician or any good citizen. Markham did not venture to publisli any thing on the other side, but in private conversation, and in " moots" at the Temple, such as that in which the white and red roses were chosen as emblems of the opposite opinions, he did not hesitate to argue for indefeasible hereditary right, which no length of possession could supersede, and to contend that the true bjir of the crown of Eng- land was Richard, Duke of York, descended from the second son of Edward III. Mis sentiments were well known to the Yorkist leaders, ar.d they availed them- selves of the legal reasoning and the historical illustra- tions with which he furnished them. He never sallied forth into the field, even when, after the death of diehard, the gallant youth his eldest son displayed the high qualities which so wonderfully excited the energies of his partisans. However, when Henry VI, was con- fined as a prisoner in the Tower, and Fortescue and all the Lancastrian leaders had fled, Markham was very nat- urally and laudably selected for the important' office of Chief Justice of the King's Bench. Although he was such a strong Legitimist, he was known not only to be an excellent lawyer, but a man of honorable and inde- pendent principles The appointment, th< refore, gave high satisfaction, and was considered a good omen of the new regime. J469.] JOILW MARKHAM. 147 He held the office above seven years, with unabated credit. Not only wds his hand free from bribes, but so was his mind from every impro^icr bias. An old author relates the following anecdote, to illustrate his purity and his good hum' r: "A lady would i, averse a suit of law against the will of her husband, who was contented to buy his quiet by giving her her will therein, though otherwise persuaded, in his judgment, the cause would go against her. This lady, dwelling in the shire town, invited the Judge to dinner, and (though thrifty enough herself) treated with sumptuous entertainment. Dinner being and the cause being called, the Judge clearly g, against her. And when, in ]iassion, she vowed nev invite Judge again, 'Nay, wife,' said he, * vow nevei lo invite vn just judge any more.' '" It was allowed that, when sitting on the bench, no one could have discovered whether he was Yorkist or Lan- castrian ; the adherents of the reigning dynasty com- plaining (I dare say very unjustly), that, to obtain a character for impartiality, he showed a leaning on the Lancastrian side.' At last, though he cherished his notions of hereditary right with unabatiiiL, constancy, he forfeited his office because he would not prostitute it to the purpose of the King and the Ministers in wreaking their vengeance on the head of a political opponent. Sir Thomas Cooke, who inclined to the Lancastrians, though he had con- ducted himself with great caution, was accused of treason, and committed to the Tower. To try him, a special commission was issued, over which Lord Chief Justice Markhiun presided, and the Government was eager for a conviction. But all that could be proved against the prisoner was, that he entered into a treaty to lend, on good security, a sum of ICXX) marks, for the use of Margaret, the Queen of the dethroned Henry VL The security was not satisfactory, and the money was ' Fuller, ii. 248. ' Fuller, in praising Fortescue and Markham, says, " These I may call two Chief Justices of the Chief Justices, for their signal integrity ; for though tiie one of them favored the House ok Lancaster, and tiie other of York, in the titles to the crown, both of them favored the House ok Justice in matters betwixt party and par'y." IMAGE EVALUATION TEST TARGET (MT-3) // ^ ^<^ ^o 1.0 I.I IM utIU 2.2 I- ^ |40 IL25 lliu ■ 2.0 1.6 Hiotographic Sciences Corporation 33 WIST MAIN STtlET Wf BSTH, N.Y. U5M (716) •73-4503 c 148 REIGN OF EDWARD IV. [1470. not advanced. The Chief Justice ruled that this did not amount to treason, but was at most misprision of treason. Of this last offense the prisoner being found guilty, he was subjected to fine and imprisonment, but he saved his life and his lands. King Edward IV. was in a fury, and, swearing that Markham, notwithstanding his high pretensions to loyalty, was himself little better than a traitor, ordered that he should never sit on the bench any more ; and appointed in his place a successor, who, being 2, puisne, had wished to trip up the heels of his chief, and had circulated a statement, to reach the King's ear, that Sir Thomas Cooke's offense was a clear overt act of high treason.' Markham bore his fall with much dignity and propriety, — in no respect changing his principles, or favoring the movement which for a season restored Henry VI. to the throne after he had been ten years a prisoner in the Tower. Fuller says, " John Markham, being ousted of his Chief Justiceship, lived privately but plentifully the remainder of his life, having fair lands by his marriage with an heiress, besides the estate he acquired by his practice and his paternal inheritance." The ex-Chief Justice died some time after the restora- tion of Edward IV., and was buried in Markham Church, a grave-stone being placed over his remains, with this simple inscription : — " Orate pro anima Johannis Markham Justiciarii." For ages after his death he was held up as the pattern of an upright judge. Thus Sir Nicholas Throckmorton, when tried before Lord Chief Justice Bromley, in the reign of Elizabeth, said, — " I would you, my Lord Chief Justice, should incline your judgments rather after the example of your honor- able predecessors. Justice Markham and others, which did eschew corrupt judgments, judging directly and sin- cerely after the law, and in principles in the same, than after such men as, swerving from the truth, the maxim, ' Stow says he lost his office through the Lord Rivers and the Duchess of Bedford : p. 450. Markham's dismissal has been connected with two other celebrated trials for treason in the reign of Henry IV., but it is quite clear that neither of them took jrlace before him. — See I St. Tr. 894 ; I Hale's ricas of Crown, 115. ? ! /• I4SO-] THOMAS BILLING. 149 and the law, did judge corruptly, maliciously, and affec- tionately."* Upon the dismissal of Sir John Markham, Edward IV., who no longer showed the generous spirit which had illustrated his signal bravery while he was fighting for the crown, and now abandoned himself by turns to voluptuousness and cruelty, tried to discover the fittest instrument that could be found for gratifying his resent- ments by a perversion of the forms of law, and with felicity fixed upon Sir Thomas Billing, who, by all sorts of meannesses, frauds and atrocities, — aided by natural shrewdness, or, rather, low cunning, — had contrived to raise himself from deep obscurity to 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 em- inence 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- known." He was supposed to have been the clerk of an attorney ; thus making himself well acquainted with the rules of practice, and the less reputable parts of the law. However, he contrived (which must have been a difficult matter in those days, when almost all who were admitted at the Inns of Court were young men of good birth and breeding) to keep his terms and to be called to the bar. He had considerable business, although not of the most creditable description ; and in due time he took the de- gree of the coif. His ambition grew with his success, and nothing would satisfy him but official preferment, Now began the grand controversy respecting the successior,'. to the crown ; and the claim to it through the house of Mor- timer, which had long been a mere matter of specula- tion, was brought into formidable activity in the person of Richard, Duke of York. Billing, — thinking that a > I St. Tr. 894. * Fuller says that he was born in Northamptonshire, and held lands at Ashwell in that county ; but is silert bo'.h as to his ancestors and descend- ants, and is evidently ashamed of introducing such a charactei among Worthies." '■i I • lA- il I 150 REIGN OF EDWARD IV. [1458. possession of above half a century must render the Lan- castrian cause triumphant, notwithstanding the im- becility of the reigning sovereign, — was outrageously loyal. He derided all objections to a title which the nation had so often solemnly recognized ; enlarging on the prudence of Henry IV., the gallantry of Henry V., and the piety of the holy Henry VI., under whose mild sway the country now flourished, — happily rid of all its continental dependencies. He even imitated the ex- ample of Sir John Fortcscuc, and published a treatise upon the subject ; which he concluded with an exhorta- tion " that all v/ho dared, by act, writing, or speech, to call in question the power of Parliament to accept the resignation of Richard II., or to depose him for the crimes he had committed and to call to the throne the member of the royal family most worthy to fill it accord- ing to the fashion of our Saxon ancestors, should be proceeded against as traitors." This so pleased Wayn- flete the Chancellor, and the other Lancastrian leaders, that Billing was thereupon made King's Serjeant, and knighted. When the right to the crown was argued, like a peer- age case, at the bar of the House of Lords,' Billing ap- peared as counsel for Henry VI., leading the Attorney and Solicitor-General; but it was remarked that hi.s fire had slackened much, and he was very complimentary to the Duke of York, who, since the battle of Northamp- ton, had been virtually master of the kingdom. We know nothing more of the proceed* "'s of this un- principled adventurer till after the fall Duke Rich- ard, when the second battle of St. Albai. ^ had placed his eldest son on the throne. Instantly Sir Thomas Billing sent in his adhesion ; and such zeal did he express in favor of the new dynasty, that his patent of King's Serjeant was renewed, and he became principal law ad- viser to Edward IV. When Parliament assembled, re- ceiving 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 at- tainted, and the three last reigns were pronounced tyran- nical usurpations. He likewise took an active part in ' Lives of Chancellors, vol. i. ch. xxii. 1 465 J THOMAS BILLING. 1ST the measures by which the persevering efforts of Queen Margaret to regain her ascendancy were disconcerted, and Henry VI. was lodged a close prisoner in the Tower of London. Sir John Markham, the honorable and consistent Yorkist, now at the head of the administration of the criminal law, was by no means so vigorous in convicting Lancastrians, or persons suspected of Lancastrianism, as Edward and his military adherents wished ; and when state prosecutions failed, there were strong murmurs against him. In these Mr. Serjeant Billing joined, sug- gesting how much better it would be for the public tranquillity if the law were properly enforced. It would have appeared very ungracious as well as arbitrary to displace the Chief Justice who had been such a friend to the House of York, and was so generally respected. That there might be one Judge to be relied upon, who might be put into commissions of oyer and terminer. Killing was made a Puisne Justice of the Court of King's Bench. He was not satisfied with this elevation, which little improved his position in the profession ; but he hoped speedily to be on the woolsack, and he was re- solved that mere scruples of conscience should not hold him back. Being thus intrusted with the sword of justice, he soon fleshed it in the unfortunate Wcxltcr Walker, in- dicted before him on the statute 25 Edward III., for compassing and imagining the death of the King. The prisoner kept an inn called the CROWN, in Cheapside, in the City of London ; and was obnoxious to the gov- ernment because a club of young men met there who were suspected to be Lancastrians, and to be plotting the restoration of the imprisoned King. But there was no witness to speak to any such treasonable consult ; and the only evidence to support the charge was, that the prisoner had once, in a merry mood, said to his son, then a boy, " Tom, if thou behavest thyself well, I will make thee heir to the CROWN." Counsel were not allowed to plead in such cases then, or for more than three centuries after; but the poor publican himself urged that he never had formed any evil intention upon the King's life, — that he had ever ■ » 11 I ;!'"- 1 ! 153 REIGN OF EDWARD IV. [1470. peaceably submitted to the ruling powers, — and that though he could not deny the words imputed to him, they wcie only spoken to amuse his little boy, meaning that he should succeed him as master of the Crown Tavern, in Chcapside, and, like him, employ himself in selling sack. Mr. Justice Billing, however, ruled — " That upon the just construction of the Statute of Treasons, which was only declaratory of the common law, there was no necessity, in supporting such a charge, to prove a design to take away the natural life of the King; that any thing showing a disposition to touch his royal state and dignity was sufficient ; and that the words proved were inconsistent with that reverence for the hereditary descent of the crown which was due from every subject under the oath of allegiance : therefore, if the jury believed the witness, about v/hich there could be no doubt, as the prisoner did not venture to deny the treasonable language which he had used, they were bound to find him guilty." A verdict of guilty was returned, and the poor pub- lican was accordingly hanged, drawn, and quartered.' Mr. Justice Billing is said to have made the criminal law thus bend to the wishes of the King and the minis- ters in other cases, the particulars of which have not been transmitted to us ; and he became a special favorite at court, all his former extravagances about cashiering Kings and electing others in their stead being forgotten, in consideration of the zeal he displayed since his con- version to the doctrine of " divine right." Therefore, when the Chief Justice had allowed Sir Thomas Cooke to escape the penalties of treason, after his forfeitures had been looked to with eagerness on ac- count of the great wealth he had accumulated, there was a general cry in the palace at Westminster that he ought not to be permitted longer to mislead juries, and that Mr. Justice Billing, of such approved loyalty and firmness, should be appointed to succeed him, rather than the Attorney or Solicitor General, who, getting on the Bench, might, like him, follow popular courses. Actordingly, a supersedeas to Sir John Markham was ' Baker's Chron. p. 299 ; Hale's Pleas of the Crown, vol. i. p. 115. 1470-] THOMAS BILLING, '53 made out immediately after the trial of Rex v. Cooke, and the same day a writ passed the Great Seal whereby " the King's trusty and well-beloved Sir Thomas Billing, Knight, was assigned as Chief Justice to hold pleas before the King himself." The very next term came on the trial of Sir Thomas Burdet. This descendant of one of the companions of William the Conqueror, and ancestor of the late Sir Francis Burdett, lived at Arrow, in Warwickshire, where he had large possessions. Wq had been a Yorkist, but somehow was out of favor at court ; and the King, mak- ing a progress in those parts, had rather wantonly en- tered his park, and hunted and killed a white buck of which he was peculiarly fond. When the fiery knight, who had been from home, heard of this affair, which he construed into a premeditated insult, he exclaimed, " I wish that the buck, horns and all, were in the belly of the man who advised the King to kill it ;" or, as some reported, "were in the King's own belly." The oppor- tunity was thought favorable for being revenged on an obnoxious person. Accordingly he was arrested, brought to London, and tried at the King's Bench bar on a charge of treason, for having compassed and imagined the death and destruction of our lord the King. The prisoner proved, by most respectable witnesses, that the wish he had rashly expressed was applied only to the man who advised the King to kill the deer, and contended that the words did not amount to treason, and that — although, on provocation, he had uttered an irreverent expression, which he deeply regretted — in- stead of having any design upon the King's life, he was ready to fight for his right to the crown, as he had done before, — and that he would willingly die in his defense. " Lord Chief Justice Billing left it to the jury to con- sider what the words were ; for if the prisoner had only expressed a wish that the buck and his horns were in the belly of the man who advised the King to kill the buck, it would not be a case of treason, and the jury would be bound to acquit ; but the story as told by the witnesses for the Crown was much more probable, for Sovereigns were not usually advised on such affairs, and it had been I I i «54 REIGN OF EDWARD IV. [1470. shown that on this occasion the King had acted entirely of his own head, without any advisers, as the prisoner, when he uttered the treasonable words, must have well known : then, if the words really were as alleged by the witnesses for the Crown, they clearly did show a treason- able purpose. Words merely expressing an opinion, however erroneous the opinion, might not amount to treason ; but when the words refer to a purpose, and in- cite to an act, they might come within the statute. Here the King's death had certainly been in the contemplation of the prisoner ; in wishing a violence to be done which must inevitably have caused his death, he imagined and compassed it. This was, in truth, advising, counseling, and commanding others to take away the sacred life of his Majesty. If the wicked deed had been done, would not the prisoner, in case the object of his vengeance had been a subject, have been an accessory before the fact ? But in treason accessories before the fact were principals, and the prisoner was not at liberty to plead that what he had planned had not been accomplished. Therefore if the jury believed that he had uttered the treasonable wish directed against his Majesty's own sacred person, they were bound to convict him." The jury immediately returned a verdict of GuiLTV; and the frightful sentence in high treason, being pro- nounced, was carried into execution with all its horrors. This barbarity made a deep impression on the public .mind, and to aggravate the misconduct of the Judge, a rumor was i)rop;igated that the late virtuous Chief Justice had been displaced because he had refused to concur in it. After the death of Edward IV., in the famous speech delivered to the citizens of London to induce them to set aside his children, and to have the Duke of Glouces- ter for their king, the Duke of Buckingham says — " Your goods were taken from you much against your will, so that every man was to pay, not what he pleased, but what the king would have him ; who never was moderate in his demands, always exorbitant, turning forfeitures into fines, fines into ransoms ; small offenses into mis- prisions of treason, and mit.prision into treason itself. VVe need not give you the examples of it. Burdet's case will never be forgot ; who for a word spoken in haste, 147°] THOMAS BILLING. 155 was cruelly beheaded. Did not Judge Markham resign his office rather than join with his brethren in passing that illegal sentence upon that honest man?" On this rhetorical authority, Lord Male, commenting in his Pleas of Crcwn upon these two cases of Walker and Burdet, for words, observes, " Both were attaint of high treason, and executed, though Markham, Chief Jus- tice, rather chose to lose his place than assent to the lat- ter judgment.'" But I believe that Burdet's prosecution had not been commenced till Markham's removal had been caused by his supposed misconduct on the trial of Sir John Cooke." Lord Chief Justice Billing, having justified his promo- tion by the renegade zeal he displayed for his new friends, and enmity to his old associates, was suddenly thrown into the greatest perplexity, and he must have regretted that he had ever left the Lancastrians. One of the most extraordinary revolutions in history — when a long con- tinuance of public tran'iuillity was looked for — without a battle, drove Edward IV. into exile, and replaced Henry VL on the throne, after he had languished ten years as a captive in the Tower of London. There is no authentic account of Billing's deportment in this crisis, and we can only conjecture the cunning means he would resort to, and the pretenses he would ;;ct up, to keep his place and to escape punishment. Cer- l;iin it is, that within a few days from the time when Henry went in procession from his prison in the Tower to his palace in Westminster, with the crown on his head, while almost all other functionaries of the late ' Vol. i. p. 115. This sentence is lepeated in the tf xi of Blackstone (Com. vol. iv. p. So), llume, to add to the effect of his n. u.i ivc, thinks fit to connect tiiis atrocity with the muidor of the Duke of Clan ice, and post- J10I1CS it till 1477, nearly ei;;lit yi-ars after Markiiam had been displaced, and IJillinj^ had been appointed to succeed iiini. — (Vol. iii. p. 261.) See I St. Tr. 275. Liurdet had been a retainer of the Duke of Clarence, who very jirob- p.hly reproached Edward IV. with his violent death, but Uiis event must iiave happen-^d long before the fatal quarrel between the two royal broth- ers. '^ In reference to this case, where the conviction was for misprision of treason, the Duke of Buckingham asks, " Were you not all witnesses of the barbarous treatment one of your own body, the worshipful Alderman Cook, met with ? And you your own selves know too well how many instances of this kind I might name among you." — Sir Thomas Move's History of Rich* ard III. ; Kennet, 498. 'S'i REIGN OF EDWARD IV, [1470. Government had fled, or were shut up in jail, a writ passed the Great Seal, bearing date the 49th year of liis reign, by which he assigned " his trusty and well-beloved Sir John Billing, Knight, as his Chief Justice to hold pieas in his Court before him.'" There can b'e as little doubt that he was present at the parliament which was summoned immediately after in Henry's name, when the crown was entailed on Henry and his issue, lulward was declared an usurper, his most active adherents were at- tainted, and all the statutes which had passed during his reign were repealed. It is not improbable that there had been a secret understanding between liilling and the Earl of Warwick (the king maker), who himself so often changed sides, and who was now in possession of the wholo .luthority of the government. While Edward was a fugitive in foreign parts, the doc- trine of divine right was, no doubt, at a discount in Eng- land, and Billing may have again bolted his arguments about the power of the people to choose their rulers ; although, according to the superstition of the age, he more probably countenanced the belief that Henry was a Saint, and that he was restored by the direct interposi- tion of Heaven. But one would think he must have been at his wits' end when, in the spring of the following year, Edward IV. landed at Ravenspurg, gained the battle of Bariiet, and, after the murder of Henry VI. and the Prince of Wales, was again on the throne, without a rival. Billing does seem to have found great difficulty in making his peace. Though he was dismissed from his office, it was allowed to remain vacant about a twelvemonth, during which time he is supposed to have been in hiding. But he had vowed that, whatever changes might take place on the throne, he himself should die Chief Justice of the King's Bench : and he contrived to be as good as his word. By his own representations, or the intercession of frif-nds, or the hope of the good services he might yet renu^i in getting ric: of troublesome opponents, the King was induced to declare his belief that he who had sat on the trials of Walker and Burdet had unwillingly • The teste is " apud Westmonasferium, 9 Oct. 49 Ileniy III."— Pat. Roll, m. 18. M73.J JOHN niLLING. isy submitted to force (luring; the l:ite usurpation; and, on the 17th of June, 1472, a writ passed the Great Seal, by which his Majesty assi|^iu.'d " his ri^ht trusty and well- beloved Sir John Hilling', Knij^ht, as Chief Justice to hold pleas before his Majesty himself.'" For nearly nine years after, he continued in the pos- session of his office, without bein^^ driven attain to change his principles or his party. One good deed he did, which should be recorded of him — in advising Kdward IV. to grant a pardon to an old Lancastrian, Sir John Fortes- cue. But for the purpose of reducing this illustrious Judge to the reproach of inconsistency, which he knew made his own name a by-word, he imposed a condition that the author of De Laudiiuis should publish a new treatise, to refute that which he had before composed, proving the right of the Mouse of Lancaster to the throne; and forced him to present the petition in which he assures the King " that he hath so clearly disproved all the arguments that have been made against his right and title that now there remaineth no color or mat- ter of argument to the hurt or infamv of the same richt or title by reason of any such writing, but the same right and title stand now the more clear and open by that any such writings have been made against them."" There are many decisions of Chief Justice Billing on dry pointsof law to be founded in the Ykak-Books, but there is only one other trial of historical importance mentioned in which he took any part, and it is much to be feared that on this occasion he inflamed, instead of soothing, the violent passions of his master, with whom he had become a special favorite. Edward IV., after repeated quarrels and rccoiiciliations with his brother, the Duke of Clarence, at last Ijrought him to trial, at the bar of the House of Lords, on a charge of high treason. The judges were summoned to attend ; and Lord Chief Justice ])illing was their mouth- piece. We have only a very defective account of this trial, and it would appear that nothing was proved against the first prince of the blood, except that he had complained of the unlawful conviction of Burdet, who » Pat. Roll, II Ed. IV., p. I. m. 24 ; Dugd. Chron. Ser. • Rot. Pari. vi. 26. 69. r' ^! m I I 158 REIGN OF EDWARD ly. [1478 had been in his service, that he had accused the King of dealing in niaf^ic, aiui had cast some ch)ubts on his lef;itimacy, — that he had induced his servants to swear that tliey wouUi be true to him, without any reservation of their allegiance to their Soverei};n, — and that he had surreptitiously obtaineil, antl preserved, an attested copy of an act of parliament, passed during the late usurpi- tion, declaring; him next heir to the crown after the male issue of Henry VI. The Duke of IJuckin^ham presided as High Stewaril, and in that capacity ou^ht to have laid down the law to the Peers ; but, to lessen his respon- sibility, he put the cpiestion to the Judges, " Whether the matters proved against the Duke of Clarence amount- ed, in point of law, to high treason?" Chief Justice Jiilling answered in the affirmative. Therefore, a unan- imous verdict of GuiLTY was given ; and sentence of death was pronounced in the usual form. I dare say Billing would not have hesitated in declaring his opinion that the beheading might be commuted to drowning in a butt of malmsey wine ; but this story of Clarence's exit, once so current, is now generally discredited, and the be- lief is, that he was privately executed in the Tower, ac- cording to his sentence.' Lord Chief Justice Billing enjoyed the felicitous fate accorded to very few persons of any distinction in those times, — that he never was imprisoned — Jiat he never was in exile — and that he died a natural death. In the spring of the year 1482, he was struck with apoplexy, and he expired in a few days--fulfilling his vow — for he remain- ed to the last Chief Justice of the King's Bench, after a tenure of office for seventeen years, in the midst of civil war and revolutions. He amassed immense wealth, but, dying childless, it went to distant relations, for whom he could have felt no tenderness. Notwithstanding his wordly prosperity, few would envy him. He might be feared and flattered, but he could not have been beloved or respected, by his con- temporaries ; and his name, contrasted with those of Fortescue and Markham, was long used as an imperson- ation of the most hollow, deceitful, and selfish qualities vihich can disgrace mankind. > Rot. Par. vi. 193, 194 195, 174. 1482.] JOHN HUSSEY, »S9 Sir John Hussnv,' who succeeded him, was Chief Justice durinj^ four rci|^ns, ever prescrvinjj .1 fair char- acter; for, bcinj^ a irn-'re lawyer, he devoted himself exclusively to the duties of his office; and he was pro- moted to the highest honors of his profession without mixing in any political contest. He was the younger son of a Lincolnshire family of respectable station, but small means; and he had con- siderable difficulties to struggle with in early life. But he was endowed with much energy, perseverance, and love of law. Mis favorite inanual was the Registrum Bkkvium; and Littleton's celebrated treatise on TeN- URKS (destined to be Cf)mmented on by CoKE) being tnw completeil, and handed about in MS., he copied it with his own hand, and he is said to have committed it to memory. His progress at the bar was rapid ; and in 1472, on the restoration of Edward IV. he was made Attorney-Gen- eral.' He had to prosecute a good many Lancastrio!''^ ; but the proceedings were less bloody than might have been expected, and, without displeasing the King, he gained some credit for moderation and humanity. He had a most painful duty to perform in conducting the impeachment of the Duke of Clarence for treason ; but he had no concern in advising this proceeding, and he is not supposed in any part of it to have exceeded the line of his professional duty. If the sentence of beheading was changed to drowning in malmsey, he must have been consulted about it ; but then* is no record of his opinion on this delicate question. It seems strange to us that he should afterwards have taken the degree of the coif; but then, and lung after- wards. King's Serjeants had precedence of the Attorney and Solicitor-General on all occasions ; and all other Serjeants claimed the like precedence, except in conduct- ing the King's business. Hussey, therefore, although Attorney-General, to add to his dignity was, in the year 1478, called Serjeant, with ten others, and gave a ' Often spelled Hussee. 'His patent, which is extant, contained the words still introduced into the patent of the Attorney-General : " Cum potestate deputandi Clericos ac officiarios sub se in qualibet Curi& de recordo." — Pat. ii Edw, IV. p. I. m. 98. I bo REIGN OF RICHARD III. [1483. U I 1 grand feast to the King, the Lord Mayor and Aldermen of London, all the Judges, and many of the nobility. On the death of Lord Chief Justice Billing, Sir Wil- liam Hussey, who had now for ten years ably filled the office of Attorney-General, was appointed to succeed him, with the increased salary of 140 marks a year.' There is sometimes great disappointment when a very eminent counsel is raised to the bench ; but all who ' mention Hussey's name concur in giving him a high character for judicial excellence. Without any improper compliances, he continued to enjoy court favor, as well as the respect of the public ; and it was not apprehended that his tenure of office could be exposed to any peril, the King being a much younger man than himself, with seeming vigorous health. The constitution of Edward, however, had been undermined by licentious indul- gences, and he was suddenly carried off while yet only in the forty-first year of his age. Hussey was supposed to be in great jeopardy, as Richard Duke of Gloucester, made Protector, was ex- pected to fill the high offices of the law with instruments adapted to the unprincipled purposes which he was suspected to entertain ; but this extraordinary man, ruthless in the commission of deeds of blood, had the sagacity to perceive that he would facilitate his ascent to supreme power by the reputation of a regard for the pure administration of justice. Therefore, having, in the name of the young King, delivered the Great Seal . to the virtuous John Russell, he reappointed Sir William Hussey Chief Justice of the King's Bench.* In Easter and Trinity Terms following, we learn from the Year Books that Hussey presided in that court, as the representative of the infant Sovereign. On the 26th of June following, the Protector changed his own title to that of King; and that very same day, when he had proceeded from Baynard's Castle to West- minster, and had been proclaimed, having experienced the popularity arising from the appointment of able and ' " Will, riusec conslit. Capitalis Justic. T. R. apud West. 7 Mail." — Pai. 21 JSJw. IV, "Idem Will, habet CXL marcas annuas sibi concessas pro statu suo decentius manuienendo. T. R. apud Westm. 12 Juaii."— Pat. 21 Ed'.o, IV. p. 2. m. 6. « Pat. I Ed. V. m. 2. [1483. Aldermen obility. g, Sir Wil- } filled the :o succeed :s a year,' lien a very at all who im a high y improper or, as well prehended ) any peril, msclf, with if Edward, ous indul- e yet only ;opardy, as >r, was ex- nstruments :h he was Inary man, d, had the his ascent ard for the having, in Great Seal sir William learn from ;it court, as or changed ' same day, e to West- xperienced of able and :st. 7 Mail." — sibi concessas 1. 12 Juau."— 11 1 I ] f ,! ! m u t y. ■A -J -^^ib-\ I'M • ■ I .■ - i'l ;;. ; ; , : "v ' il t.:> jx: V-. t:!';; '''i-.-.i!- S<.'. ' C'^'.'- . .i ■•'':< ', 'ill- : > i: '-. ■•-■ I'.: ( ) : 1 1" 1 , :.: ;\\.--r-. ,• 'Pr- ii ■ii'lc'i I or 1.1 'ii liV; ^,• ,r, ,:(1 !;...•', : . ' ; u ■ '. ; ' ' . ■' I ' i I , . • I ■. , • \ (..•■. . I ; ■ i I .•■:'■ y < ! I. .' ,1,. • I ., ■■■ . ^ ■ ( ' ,■ ', ! ' ; 1 I ' . . 1 . ^. ■ ; I ; " I 1, , 1. !iu,ri );:.:1; l,i>:i,.i ■; to .. .-. :. I - . ; . .. •...>ru.. \ • > , , , a!' '■ :^\\-^ m". Iv , [;,io m- ..ij"ltr>; nuir:: r ■!!! ■^fe^^^^ m 1 J i: ' i !■' " if !|p!i' ' 1. 1 1 B^ s ■ B .-(*!*.'•?».» '-i^t.y J /-J. ■ '■^>"if4'- * ;, ."-' .''-tft^i, '*r. -«?* >. ,,4. ^ '^.■, « -^s-^ :»■-.* ■K' ■f.. »^'' f X •iitf^n :t .*: *v. '7H '^'T--^* ** ..4«; >^ i Ca '^ i''V y- \ /*tic. 1'. R. apud Westm. i Hen. VII. p. i. m. 22." i-il OF RICHARD III. [1485— tial service in removing difficulties which presented themselves in the way of legislation. In the first place, Henry himself had been attainted by an act passed in the preceding reign, and, instead of mounting a throne, and explaining the reasons for summoning the two Houses, — according to the letter of the law, he was liable to lose his life on the scaffold. Nor could this act of attainder be reversed in the usual form, as the king, while under attainder (it was suggested) could not law- fully exercise any function of royalty. The question being put to the Judges, Hussey assembled them in the Exchequer Chamber, and induced them all to agree in this ingenious solution of the problem that " the descent of the crown of itself takes away all defects and disabil- ities arising from attainder, and therefore that the act of attainder must be consi^'ered as already virtually re- versed." Next, it was ascert "lined that more than half the Peers who were sumnoned, and a great many repre- sentatives returned to the House of Commons, had been attainted in the same manner ; and the question was, whether their attainder could be treated as a nullity, on the ground that Richard HI., who gave the royal assent to it, was a usurper ^ Hussey being consulted, prudently answered, " that it would be of dangerous ex- ample to suffer those who ought to observe a law to question the title of the Sovereign under whom the law had been enacted, and that the attainted peers and com- moners ought not to take their seats in either house till their attainder had been reversed by a new act of parlia- ment assented to by the king who now is." All the J udges concurred in this opinion, of which Henry made dexter- ous use by obtaining the famous statute, indemnifying all who act in obedience to the king de facto. ^ Hussey continued Chief Justice of the King's Bench under Henry VH. for a period of ten years, when he expired full of days and of honors. He assisted in re- modeling the Court of Star Chamber, occasionally sat there as a Judge, but none of its sentences are charge- able with excessive severity in his time. He left no ' Roll ParL I Henry VIL ; i Pari. Hist. 450 ; Lord Bacon's Hist Henir VII. I495-] JOHN FINEUX. i«3 issue behind him ; and having given away much in char- ity while he lived, he disposed of the residue of his fortune for pious uses, which in the following age were reckoned superstitious. The next Chief Justice of the King's Bench was SiR John Fineux, of whom, although he presided in that court twenty-eight years, I find little of good or of evil. The office of Chancellor, held successively by Morton, Wareham, Wolsey, and More, now gained such an as- cendancy that the Common Law Judges occupied but a small space in the public eye, and their names are seldom connected with events of historical interest. But even Fineux has had biographers, and they divide his career into three portions of twenty-eight years each. He was quite idle for twenty-eight years, during which he spent a fair estate at Swenkficld in Kent, inherited by him from his ancestors; he then took to the study of the law, in which he made great proficiency, and at the end of twenty-eight years he was made a Judge. But I find nothing more memorable recorded of him than that he had a house in Canterbury, in each window of which was to be seen his motto, " Misericordias Domini cantabo in ceternumy Rivaling his immediate predecessor in posthumous piety, he left for the good of his soul all his property to St. Augustine's Priory, in Canterbury, — a monk of which wrote a treatise in his praise, describing him as " Vir prudentissimus, gcnere insignis, justitia praeclarus, pietate refertus, humanitate splendidus, et charitate fcecundu's."* He died in Michaelmas Term, in the seventeenth year of the reign of Henry VHI. > See Fuller's Worthies : Kent n's Hist. Henry tfL !li CHAPTER V. CHIEF JUSTICES TILL THE APPOINTMENT OF CHIEF JUSTICE rOPHAM BY QUEEN ELIZABETH. WE know more of the next Chief Justice, SiR John Fitzjames, but very little to his credit. Of obscure birth, and not brilliant talents, he made his fortune by his great good humor, and by being at college with Cardinal Wolscy. It is said that Fitz- james, who was a Somersetshire man, kept up an inti- macy with Wolscy when the latter had become a village parson in that county ; and that he was actually in the brawl at the fair when his reverence, having got drunk, was set in the stocks by Sir Amyas Paulet.' While Wolsey tried his luck in the Church with little hope of promotion, Fitzjames was keeping his terms in the Inns of Court ; but he chiefly distinguished himself on gaudy days, by dancing before the Judges, playing the part of " Abbot of Misrule," and swearing strange oaths, — especially by SL Gillian, his tutelary saint. His agreeable manners made him popular with the " Read- ers " and " Benchers ;" and through their favor, although very deficient in '* moots" and "bolts," he was called to the outer bar. Clients, however, he had none, and he was in deep despair, when his former chum — having in- sinuated himself into the good graces of the stern and wary old man, Henry VII., and those of the gay and li- centious youth, Henry VIII. — was rapidly advancing to greatness. Wolsey, while Almoner, and holding subor- dinate offices about the Court, took notice of Fitzjames, advised him to stick to the profession, and was able to throw some business in his way, in the Court of Wards and Liveries, — ' Lives of Chancellors, i. 444. :fmi| '519— 1523-] JOHN FITZJAMES. 165 " Lofty and sour to them that loved him not ; But to those men that sought him, sweet as summer." Fitzjames was devotedly of this second class ; and was even suspected to assist his patron in pursuits which drew upon him Queen Catharine's censure : — " Of his own body he was ill, and gave The clergy ill example." For these or other services the Cardinal, not long after he wrested the Great Seal from Archbishop Ware- ham, and had all legal patronapje conferred upon him, boldly made Fitzjames Attorney General, notwithstand- inuckingham, returning from Westminster Hall to the Tower, exclaim, — . . . . " I had my trial, And, must needs say, a noble one ; wliich makes me A little happier than my wretched father."' The result was, at all events, highly satisfactory to Wolsey, who, in the beginning of the following year, created Fitzjames a Puisne Judge of the Court of King's ]iench, with a promise of being raised to be Chief Jus- tice as soon as there should be a vacancy." Sir John i'ineux, turned of eighty, was expected to drop every term, but held on four years longer. As soon as he ex- l)!red, Fitzjames was appointed his successor.' Wolsey .s'till zealously supported him, although thereby incurring considerable obloquy. It was generally thought the 11c w Chief was not only wanting in gravity of moral character, but that he had not sufficient professional knowledge for such a situation. His highest quality was ' Henry VIIT. act ii. sc. i 'Pat 13 Ilcnry VIII. p. 2 I St. Tr. 287—298. 3 Pat. 17 Henry VIII. Rot. I. I • 1 66 REIGN OF HENRY VII F. [1529 m % :li 1 discretion, which generally enabled him to conceal his ignorance, and to disarm opposition. Fortunately for him, the question which then ai^ntatcd the country, re- specting the validity of the King's marriage with Kath- erine of Aragon, was considered to depend entirely on the canon law, and he was not called upon to give any opinion upon it. lie thus quietly discharged the duties of his office till Wolsey's fall. But he then experienced much perplexity. Was he to desert his patron, or to sacrifice his place? He had an exaggerated notion of the King's vengefid feelings. The Cardinal having not only been dcprivvxl of the Great Seal, but banished to F.shcr, and rt^bbcd t>f almost the whole of his property under process of /nt/////////-^-, while an impeachment for treason was still threatened against him, — the Chief Justice concluded that his utter destruction was resolved upon, antl that no one could show him any sympathy without sharing his fate. Tiiere- fore, instead of going privately to visit him, as some old friends did, he joined in the cry against him, and assisted his enemies to the utmost. Wolsey readily surrendered all his private property, but wished, for the benefit of his successors, to save the palace at Whitehall, which be- longed to the sec of York, being the cift of a former archbishop. A reference v/as then made to the Judges, " whether it was not forfeited to the Crown ?" v.'hen the Chief Justice suggested the fraudulent expedient of a fictitious recovery in the Court of Common Pleas, whereby it should be adjudged to the King under a superior title. He had not the courage to show himself in the presence of the man to whom he owed every- thing ; and Shelle}', a Puisne Judge, was deputed to make the proposal to him in the King's name. " Mas- ter Slielley," said the Cardinal, " yc shall make report to his Highness that I am his obedient subject, and faithful chaplain and bondsman, whose roj'al commandment and request I will in nowise disobey, but most gladly fulfill and accomplish his princely will and pleasure in all things, a.nd 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. Ilowbeit, I pray you show his Majesty from me that I most .;i^[^ «529] JAMES FJTZJAMES, 167 humbly desire his Hij;hncss to call to his most p;racious remembrance that tlurt- is both Ilcavcn and Hell." This answer was, no doubt, reported by Shelley to his brethren assembled in tiic Mxchctiuer Chamber, although, probably, not to the Kin;';; but it excited no remorse iu the breast of Chief Justice Fitzjan'cs, who perfected the machinery by which the town residence of the Arch- bishops 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 saijes of the law, might be brought to condign punishment. Accordingly, when parliament met, and a select com- mittee of the House of Lords was appointed to draw up articles of impeachment against Wolsey, Chief Jus- tice Fitzjamcs, although only summoneil like the other judges, as an assessor, was actually made a member of the committee, joined in their deliberations, and signed their report.' Some of the Articles drawn by him indi- cate a pre-existing envy and jealousy, which he had concealed by ilattery and subserviency : " XVI. Also the said Lord Cardinal hath hindered and undone many of your poor subjects for want of dispatch- ing of matters, for he would no man should meddie but himself; insomuch that it hath been affirmed, by many wise men, that ten of the most wisest and most expert men in England were not sufficient 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 and wait upon him, whereof he had no small pleasure." — " XX. Also the said Lord Cardinal hath examined divers and many matters in the Chancery after judgment thereof given at the common la.v, in subversion of your laws." — " XXVL Also when matters have been near at judgment by process at your ' It nppears very irrci^ular to us, tliat SirTliomas More, tlie Chancellor, should have sat u|)on the committee, and acted as Ciiairman, for, although Speaker by virtue of his ofllce, he was not a member of the House, and was only entitled to put the (iuc:.-,ti it th.;i Wolsey, whom he had aban- doned, if not betrayed, was likely to be restored to power, and he must have been considerably relieved by the cer- tain intelligence of the sad scene at Leicester Abbey in the follov/ing autumn, which secured him for ever against the fear of being upbraided or punished in this world ac- cording 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 tyrar' "H '.lie <^hrone, whose relish for blood ,-oon began to disnl v ;;s?lf, and became more eager the more it was gra •■ ' Henry retaining all the doctrines of the Koman Catho- lic religion which we Protestants consider most objection- ' I Pail. Hist. 492. ^ka^j^j i534.] JOHN FirZJAMES. 169 able, but making him ' 'f Pope of England in place of the Bishop of Rome, laws were '-nacted subjecting to the pen- alties of treason allwli' denied bis '^uprcuiacy ; and many of these offenders were tried and condemned by T^ord Chief Justice Fit/j mes, altnough he was suspected of being in his heart adverse to all lnnovatioi\ in re- ligion. I must confine myself to (he most illustrious victims 'Sacrificed by him — Fisher, Bishop of Ro\;liestcr, and Sir Thomas More. Henry, not contented with having them attained of misprision of tridson, for which they were differing the sentence of forfeiture of all their property .md imprisonment during lifo, was determined to bring ihem both to the block ; and for this purpose issued a special commission to try them on the capital char^^o of having denied his supremacy. The Lord Chancellor was first commissioner; but it was intended tint the respon- sibility and the oilium should chiedy rest on t'le Lord Chief Justice Fitzjames, who was joined in the commis- sion along with several other common law judg s of in- ferior rank. The case against the Bishop of Rochester rested on the evidence of Rich, the Solicitor-General, who sw ore he had heard the prisoner say, " I believe in myconsc ence, and by my learning I assuredly know, that the King neither is, nor by right can be, supreme head ol the Church of England ;" but admitted that this was in a confidential conversation, which he had introduceti by declaring that " he came from the King to ask what the liishop's opinion was upon this question, and by assui iig him that it never should be mentioned to any one ex« ccpt the King, and that the King had promised he nevei should be drawn into question for it afterwards." Tlte prisoner contending that he was not guilty of the capital crime charged for words so spoken, the matter was rc- lerred .) the Judges: — "Lord Chief Justice Fitzjames, in their names, de- claretl • that this message or promise from the King to the prisoner neither did nor could, by rigor of law, dis- charge him ; but in so declaring of his mind and con- science against the suprctnacy — yea, though it were at the King's own request or commandment — he committed £ j i ', ' ] !'( nr In h ^M' (j 1-1 ' ■ 1 i ;: ij i } i: -i ■■'' l| 170 REIGN OF HENRY VIII. [1534. 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, con- sider that by all equity, justice, worldly honesty, and courteous dealing, I cannot, as the case standeth, be directly charged therewith as with treason, though I had spoken the words indeed, the same not being spoken maliciously, but in the way of advice or counsel when it was required of me by the King himself; and that favor the very words of the statute do give me, being made only against such as shall ' iiialicwnsiy g^inns^xy the King's supremacy,' and none other ; wherefore, although by rigor of law you may take occasion thus to condemn me, yet I hope you cannot find law, except you add rigor to that law, to cast me down, which herein I have not de- served," Fitzjavics, C. J. — "All my brethren are agreed that maliciously' is a term of art and an inference of law, not a qualification of fact. In truth, it is a superfluous and void word ; for if a man speak against the King's supremacy by any manner of means, that speaking is to be understood and taken in law as malicious." Bishop of Rochester. — "If the law be so, then it is a hard exposition, and (as I take it) contrary to the mean- ing 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 testi- mony 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." Fitzjaincs, C. J. — "This being the King's case, it rests much in the conscience and discretion of the jury; ami 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 profountlly uttered, and that with a mervailous couragious, and rare con- K- iji 1534] JAMES FITZJAMES. 171 stancy, 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 percei/e such a famous and reverend man in danger to be condemned to a cruell death upon so weake evidence, given by such an accuser, contrary to all faith, and the promise of the King himself." A packed jury, being left to their conscience and dis- cretion, found a verdict of GUTLTY ; and Henry was able to make good his saying, when he was told that the Pope intended to send Bishop Fisher a cardinal's hat, — " 'Fore God, then, he shall wear it on his shoulders, for I will have his head off."' The conduct of the Chief Justice at the trial of Sir Thomas More was not less atrocious. After the case for the Crown had been closed, the prisoner, in an able ad- dress to the jury, clearly proved that there was no evi- dence whatever to support the charge, and that he was entitled to an acquittal; when Rich, the Solicitor-Gen- eml, was permitted to present himself in the witness box, and to swear falsely, that " having observed, in a private conversation with the prisoner in the Tower, * No parliament could make a law that God should not be God,' Sir Thomas replied, ' No more can the Parlia- ment make the King supreme head of the Church.' " A verdict of GuiLTY was pronounced against the pris- oner, notwithstanding his solemn denial of ever having spoken these words. He then moved, in arrest of judg- ment, 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 sup- posing that Parliament had power to pass such a statute. The Lord Chancellor, whose duty it was, as head of the commission, to pass the sentence, — " not willing," says the report, " to take the whole load of his condemnation on himself, asked in open court the advice of Sir John Fitzjames, the Lord Chief Justice of England, whether the indictment was valid or no ?" fitzjames, C. J. — " My Lords all, by St. Gillian, (for that was always his oath), I must needs confess that if > St. Tr. 305-40S. saA«-~^.„,.„ 17a REIGN OF HENRY VIII. [1536 iill ¥^ the act of parliament be not unlawful, then the indict- ment is not, in my conscience, invalid." Lord Chaticellor. — " Qiiid adhuc desiderainus testimo- nium ? Reus 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 car- ried back to the Tower of London, and that you be thence drawn on a hurdle to Tyburn, where you are to be hanged till yuu are half dead, and then being cut down alive and emboweled, and your bowels burnt be- fore your face, you are to be beheaded and quartered, your four quarters being set up over the four gates of the City, and your head upon London Bridge."' No one can deny that Lord Chief Justice Fitzjames was an accessory to this atrocious murder. The next occasion of his attracting the notice of the public was when he presided at the trials of Smeaton and the other supposed gallants of Anne Boleyn. Luck- ily for him, no particulars of these trials have come down to us, and we remain ignorant of the arts by which a conviction was obtained, and even a confession, — although there is every reason to believe that the parties were in- nocent. According to the rules of evidence which then prevailed, the convictions and confessions of the gallants were to be given in evidence to establish the guilt of the unhappy Queen, for whose death Henry was now as im- patient as he had once been to make her his wife. When the Lord High Steward and the Peers as- sembled 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 wTis the death which the law ap- pointed for a woman attainted of treason ; yet, as Anne had been Queen of England, some Peers suggested that it might be left to the King to determine whether she should die such a cruel and ignominious death, or be be- headed, a punishment supposed to be attended with less pain and less disgrace. But then a difficulty arose, ' I St. Tr. 385-396. »539] JAMES FITZJAMES. 173 whether, although the King might remit all the atro- cities of the sentence on a man for treason, except beheading, which is part of it, he could order a person to be beheaded who was sentenced to be burnt. A so- lution was proposed, that she should be sentenced by the Lo*"d High Steward to be " burnt or beheaded at the King's pleasure;" and the opinion of the Judges was asked, " whether such a sentence could be lawfully pronounced ?" Fitsjamcs, C. J. — '* My Lords, neither myself nor any of my learned brothers have ever known or found in the records, or read in the books, or known or heard of, a sentence of death in the alternative or disjunctive, and incline to think that it would be bad for uncertainty. The law delights in certainty. Where a choice is given, by what means is the choice to be exercised ? And if the sheriff receives no special directions, what is he to do ? Is sentence to be stayed till special directions are given by the King ? and if no special directions are given, is the prisoner, being attainted, to escape all punish- ment ? Prudent antiquity advises you stare super antiquas vias ; and that which is without precedent is without safety." After due deliberation, it was held that an absolute sentence of beheading would be lawful, and it was 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 unfortunate Queen Catherine Howard ; and he was much missed when the bloody statute of the Six Articles brought so many, both of the old and of the reformed faith, on capital charges before the Court of King's Bench. He left no descendants; but Sir John Fitzjames, de- scended 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 siid of his merit, save that King • St. Tr. 410-434 ; Hall's Henry VIII. fol. 227 b. ; Fox, Mart. u. 987 j Stow, 572 ; Speed, 1014. '74 REIGN OF HENRY VIII. [1523. m i ■ \ ti Henry VIII. pieferred him, who never used dunce or drone in church or state, but menof activity and ability. He sat above thirteen years in his place, demean- ing himself so that he lived and died in the King's favor." Fitzjames, 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 convic- tion ; and Lord Chancellor Audley suggested the expe- diency 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 had been kept vacant some months, it was filled by SiR ED- WARD 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 Conquerer, built a castle on the top of a sharp hill in Somersetshire, and was thence called " Roger de Monte acuto." The family long took the surname of Montacute ; and the elder branch, till it be- came extinct in the beginning of the reign of Henry VI., for several generations bore the title of Earl of Salisbury. The Chief Justice was the younger brother of a younger brother ; a junior branch of the family, set- tling at Hemington in Northamptonshire, who had gradually changed their name to Montagu. He was born at Brigstock in that county, in the latter end of the reign of Henry VII. Being early destined to the pro- fession of the law, which had become the highway to wealth and honors, he was sent when very young to study at an Inn of Chanceiy, and in due time was en- tered 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 professional men. I do not find any statement of his call to the bar, or his progress in business ; but so '53I-] EDWARD MONTAGU. 175 highly was he esteemed for learning by the Benchers, that he was appointed by them " Autumn Reader " in 1524, and " Double Reader" 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 member of the House of Commons. But this speculation had nearly ended fatally to him. Like Sir Thomas More and Lord Bacon, he in- discreetly made a maiden speech against granting a sup- ply. This was the parliament in which Sir Thomas More was chosen Speaker, and in which Wolsey had gone down to the House of Commons to complain of the tardy progress of the money bill. Montagu, think- ing that he had found a favorable opportunity for his d^but, made a violent harangue on the breach of privi- lege 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, lay- ing his hand on his head, added, " Get my bill to pass by twelve of the clock to-morrow, or else by two of the clock to-morrow this 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 days. When he " put on the coif," or " took upon himself the degree of serjeant-at-law," he gained prodigious ap- plause. A call of Serjeants in those times was an event of historical importance, by reason of the festivities at- tending it, and of its marking an aera 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 five days : Fri- day, the loth of November, and Saturday, Sunday, Monday and Tuesday following. On the Monday, which was the greatest day, King Henry and Queen Catherine 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 preparation of fish, flesh, and other victuals spent in this feast, and 176 REIGN OF HENRY VIII. [1540. ■«< !lli : Hi ! i would seem almost incredible, and wanted little of a feast at a coronation.'" This must have been almost the last occasion of the King being seen in public with his first wife ; and he would have been much obliged to the Serjeants if they could, by their cantrips, have put Anne lioleyn in her place ; but they contrived to satisfy him highly, and he declared, on his departure, that " the entertainment had been much to his good liking." He took great notice of Serjeant Montagu, whose manners were particularly 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 favorite marked for promotion. However, year after year passed away, without any change in his position, and he thought himself doomed to perpetual neglect, when, without having ever been Attorney or Solicitor-General, or King's Sergeant, or Puisne judge, he found himself one day Chief Justice of England, For a short time he, no doubt, was pleased in observ- ing the joy of his wife and children ; in receiving the congratulations of his friends ; in listening to a panegyric on his learning and his virtues from Lord Chancellor Audley ; in appointing his officers ; in giving good places to his dependents ; in putting on his scarlet robes, and throwing the collar of S. S. round his neck ; in witness- ing the worshipful homage paid to him when he took his * However, he gives a few items as a specimen, " noting the prices to show how things had risen in a century :" " There were Ijrought to the slaughter-house, — 24 great bicfes, at . lou fat nuittons, at . . . . 51 great veales, at . 34 porhes, at . 90 pigs, at .... . Capons of Greece, 10 dozen at Capons of Kent, g dozen and 6, at . Cocks of Grose, 7 dozen and 9, at . . Coclis couisc, 14 dozen, at St/, and 3-, " considering the E arsons implicated, formed a satisfactory presumption tlMt adultery had een committed." ' Fuller. «S46'] THOMAS BILLING. 179 tagu probably had some scruples, as usual, when he /as 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 Roman 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 Richard 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 that his decisions were liable to be reversed by the caprice of that court where his word had been law ; but he must have exulted in experiencing the quiet and security he had managed to obtain, — in soothing his conscience by resolutions to repent of past transgressions, 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 this memorable reign, once, and once only, he was in danger of being subjected to the like perils, pangs, and remorse to which he had been exposed when 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, ' Pat. 37 Henry VIII. p. 18. Fuller remarks, "A descent in honor, but Ascent in profit, — it being given to old age rather to be thrifty than ambi« tiotts." sSo REIGN OF EDWARD VF. [iS47 was under prosecution for treason, the principal charge against him bcinir 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 difference. The two Chief Justices were summoned to attend his examination before the Council, and it was expected that they would be asked whether this pretension, which ougiit to have been de- cided by the College of Heralds, amounted to a com- passing 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 de- fense, and hoping to soften the King by submission, voluntarily subscribed, in their presence, a formal confes- sion of his guilt, whereby he admitted that he l;ad quar- tered the royal arms in the manner alleged, whicl:, 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 could be blamed for was that they did not 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 (icinise of the Crown early in the morning of the day appointed for his execu- tion. The commission of Montagu as Chief Justice of the Common Pleas was renewed, and he held the office dur- ing 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 king- dom, and seeing the approaching end of the young King, resolved to prolong his own rule by defeating the succession 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 > St. Tr. 458. ^553] ED WARD MONTA G U. i8i a will disinheriting his sisters, Mary and Elizabeth, and leaving the crown to his cousin, Lady Jane Gray. Of all the Judges on the bench, Montagu was considered to have the fairest character, with the weakest nerves; and, without any notice of the business to be debated, he and two or three Puisnies, over whom he was supposed to have influence, were summoned to attend a council at Greenwich, where the Court then lay. IJeing 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 plucked up courage to refuse till he should have an opportunity to look into the acts passed for reg- ulating 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 what he was asked to do was not only contrary to law, but would be sure to expose him to the penalties of treason. Accordingly, at a council held two days after, he explained that by act of parliament the crown was entailed on the Lady Mary after the death of his Highness without issue, and that nothing short of an act of parliament could alter this destination. But, Northumberland threatening the utmost violence against all who should attempt to thwart his inclination, the following plan was resorted to — that a commission should pass the great seal, au- thorizing Montagu to draw the will in the prescribed form ; that it should, when drawn and executed by Ed- ward, be signed by all the Judges ; and that a pardon at the same time should pass the great seal to indemnify them for any offense against the law which they might thereby have committed. Thus fortified, Montagu drew the will, and under it the Lady Jane Grey was pro- claimed Queen of England. lie 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 favor of Queen Mary. For some time he was in considerable danger of a cap- ital prosecution, the will of Edward being in his hand- i3; HEJGN Ol' QUKE:: MAHY. [1546- (i j;iii|jjl' writini;, and a report beinj; spro.ul that he liad furnished the argviments in hiw by which an attempt had been made to sujiport it. Me was arrested, confined in tlie Tower, and subjected to repeated examinations ; but Bishop Gardyner, now Chancellor and Prime Minister, was convinced that he had acted under constraint, and, while others expiated on the scaffold the offense in which he had been implicated, after six weeks' imprison- ment he was set at liberty, being punished only by the loss of his Chief Justiceship, by a fine of ^1000, and b\' the surrender of some abbey lands ;4ranted to him at the recommendation of the I'rotector Somerset. He then retired to his countrv' housL-, where he died on the lOth of l-'cbruary, 1556, lie was buried with his ancestors in IIemini;lon church, ami a s[)lendid marble monument was there erected to his memory, with the following semi-barbarous 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 EinvARni MouNXAr.u Mii.nis nuter Capitalis JUSTie. V)V. COMMUNI llANCO Al'lJI) WHbTM. " Montacutc pater, Icguni jurisque m.igistcr, O Eilwartle, vale ! iiucm disciplina severa Furit et improljalis homimim scclerata timcbat. Morihus aiuiiiuis vixi.ili, pacis ainator, Virtutis ri^iilus custos, vitiiipic na^cllum. O vonerando scncx ! >e luxoriosa jiiventus, Criminis u'torcin mctUL-ns, in fiuieic {;auUct. Patria sed nieri;t, .sanclo siioliala latore, Qui vixit jiisti siimnius defensor ct .'cipti. liunc tu prxtericns lector defonde prccando."' Having been thrice married, he left eight sons and nine daughters, for all of whom he was able amply to provide. The tit'e of Dulcc 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. The next five persons successively appointed to the office of Chief Justice of the King's Bench (Sir Richard Lyster, 9th Nov., 1546; Sir Roger Cholmley, 21st March, 1552; Sir Thomas Bromley, 4th Oct., 1553; • 3 Bridge's Northampton, 34 1556.1 y.Df/cs D YER. i?^.l Sir William I'urtmorc, nth June, 1554; and Sir Ed- ward Saunders, fUli May, 1 556) were neither eminent in their profession nor connected with the stirring events of the times in winch they lived. I shall therefore pass them over without further notice, and introduce to the reader a conteinporan' Chief Justice of the Common Pleas, to whom we lawyers still looh up with much reverence — SlR jAMi'.s Dvi;i<. I myself am bound particularly to honor him as the first En<^dish lawyer who wrote for i)ublication " Reports of Cases " determined in our municipal courts, — being followed by a lon^ list of imitators, containing my hum- ble name. To show the respect in which our craft was once held, and to excuse myself to the reader for intro- duciii;^ a Law Rept:)rter, I begin with some Latin lines, composed by his editor soon after his death, when a huge folio, the labor of thirty years, was given to the world : — '•CANDIDO LECTORI CARMEN. EccE per ftssidiids tandem collccta lahorcs, Expoctata diu, jam iiioiuinicnta patent, Et (|ii:o tcr diiios vi\ sMiit conycsta per aiinos, Ell uiio iii;lu4t pin bix'vitate lil)ro. In cujiis l:uidciu, satis est scripsisse DiERUM, Patroiioipic alio iion olms esse rcor, Cujus iiota sail-, ddCUiiia, poteulia, virtus, Cujus juiicta j^ravi cum pietate fides. Cujus suiiunus liiuior, cujus veneraiula potestas, Semper eruiil dDiuiui sii;iia ni)t;ei|uc sui. Er};i) vade Lilicr, piiiuixpie in fionle, Dii:rum liisciiptuni (^e-,la', lioc iluco tutus eiis. Impiolia lie duliites vaiii convicia vulgi, Sat til)i sil taiui ^;esta iiiisse viri. Queiu nee consuinet spatium nee lonfja vetustas, Tein|iora quern lapieiit nulla, nee ulla dies : Docte DiKRK vale, tua fama perennis Olympo Vivet ad extieinos te moiienle dies." I may not flatter myself that I can assist in fulfilling these prophesies, and in making his name immortal; but I can easily show that he deserves a place among the Worthies of Westminster Hall. lie was descended from an ancient family of Somer- setshire, which likewise produced Sir Edward Dyer, Chancellor of the Garter under Queen Elizabeth, — an eminent poet, as well as an accomplished courtier, and a i84 REIGN OF QUEEN MARY. VlZI r ; 'II : n:: ^11 very formidable competitor with the Earl of Leicester and Sir Christopher Hatton for the favors of their royal mistress. — James Dyer was born about the year 15 12, and was the second son of Richard Dyer, who had a good estate at Wincanton, in that county. Whetstones, the rhyming biographer, who celebrated the great orna- ments of the reign of Elizabeth, gives us this account of his education : — " In tender ycares he was to learning set And vessels long tlieir seasoned liquors taste : As time grew on, he did to Oxford get, And so from thence lie was in Strand Iniie^ plaste ; But him with fame the Middle Temple graste : The depth of lawe he sciircht w ith jiainefull toyle, Not cunning quirks the simple inan to spoyle." "•' As a proof of tlie early genius he displayed for report- ing, we are told by prose aiithoities tliat he was remark- able for a diligent attendance in the courts of law every morning from seven to eleven, with his note-book, in which he took down, in short-hand, the arguments and judgments in all important cases occurring in Westmin- ster Hall. When he returned to his chamber after sup- per, at six o'clock, he digested and abridged his notes into a lucid report of each case, introducing only the facts necessary for raising the point of law determined, with a brief statement of the manner in which it was presented by the counsel to the court, and the opinion of each of the judges; — improving infinitely upon the Year-Books, which generally presented a confused mass of dialogue between the counsel and the judges, — the reader often being left in doubt whether the speaker stood at the bar or sat on the bench. Hence the admirable reports of Lord Chief Justice Dyer, which were afterwards given to the world, and hence the valuable labors of succeeding reporters on the same model. After having been a student of law rather more than seven years, he was called to the bar. His progress there was not very rapid, for both his parts and his acquire- ments are said to have been more solid than brilliant. ' Then an Inn of Chancery where legal studies began. • " The Life and Death of the good Lord Dyer," reprinted in 1816 at the Auchinlack press. ^553] yAMES DYER. i8s He avoided all evil arts to promote the success either of others or of himself. " lie with much care his clycnts' wrongs redrest ; By vertue thus he clymede above the rest, And feared no fall sith merit was his ginde, When reaching heads ofte slip in cheifest pride."' He steadily advanced in business and in reputation, in- somuch that in the last parliament of Edward VI. he was returned as a member of the House of Commons ; and he was elected Speaker, althoiit^h without the rank of Soli- citor-General, or of Sercjeant, usually considered neces- sary foi that dignity. We have no particulars of his per- formance, when, bcincT presented at the bar of the House of Lords, he prayed that the privileges of the Commons might be allowed, — for the Journals merely say that he made " an ornate oration before the King." On account of Edward's declining health, the parliament sat only one month, ^ — at the end of which. Dyer ceased for ever to be a parliament man ; and, having received ;!^ioo for his fee as Speaker, he was probably not sorry to be freed from the distraction of politics, that he might devote himself exclusively to his favorite purpose. Immediatelv after, he took the degree of Sergeant-at- Law ; and, as he had warmly espoused the Protestant side, it was expected that he would soon receive high promotion ; but his hopes seemed extinguished by the premature death of the Protestant King, and the acces- sion of the bigoted Mary. He had no concern in the plot for putting the Lady Jane Grey on the throne ; and, as a sound lawyer, he had denied the power of Edward to change the succession to the crown by his will, contrary to an act of parliament as well as to the common law of the realm. It was probably for that reason that, although he did not, like many others, now change his religion, he was honored with the appointment of Queen's Sergeant. I presume that, without any formal reconciliation to the Church of Rome, he must, after the example of Sir Nicholas Bacon, Sir Williain Cecil, and the Princess Elizabeth herself, — good Protestants in their hearts. — have conformed, during this reign, to the dominant wor- ' Wiietstones. » I Pari. Hist. 5s)9-6o2. 1 86 RhIGN OF QUEEN MARY. [1554. ship ; for Lord Chancellor Gardyner could not have re- commended to the royal favor a notorious schismatic. Dyer certainly enjoyed the confidence of Mary's Gov- ernment ; and he was employed as one of the counsel to prosecute Sir Nicholas Throckmorton, charged with high treason, as an accomplice in Sir Thomas Wyat's rebel- lion.' On this occasion he met with a signal defeat ; the prisoner, who was a man of great ingenuity and elo- quence, having the almost unprecedented good luck, in those ages, to obtain a verdict of acquittal. We have a very minute report of the proceedings, showing that as yet there were no rules whatever as to procedure or evi- dence on criminal trials. Much of the time was occupied with questioning the prisoner, and instead of any formal speeches being delivered, a conversation was kept up be- tween the judges, the jury, the counsel, and the prisoner, in the midst of the reading of written confessions and de- positions. When the jury had been sworn, thus spoke Sir Nicholas : — " And it may please you. Master Sergeant, and the others my masters of the Queen's learned counsel, albeit you are appointed to give evidence against me, yet I pray you remember I am not alienate from you, but that I am your Christian brother. You ought to consider that you are not so privileged but you have a duty of God ; which, if you exceed, will be grievously required at your hands. It is lawful for you to use your gifts which I know God hath largely given you, as your learn- ing, art, and eloquence, so as thereby you do not seduce the minds of the simple and unlearned jury. For, Mas- ter Sergeant, I know how by persuasions, enforcements, prescriptions, applying, implying, inferring, conjecturing, deducing of arguments, wresting and exceeding the law, the circumstances, the depositions, and confessions, un- * It has been supposed that he acted as one of the judfres on this occasion, because his name is mentioned in the commission (see life of Dyer, prefixed to the last edition of his Reports) ; but it is mentioned with that of the At- torney-General, and it always has been, and still is, the custom, in commis- sions of oyer and terminer, to name the King's counsel as commissioners ; this nomination not preventing them from practicing as advocates before their brother commissioners. I have often thought of the difficulty which would arise if tliey were to be giiilly of a contemjjt of court, and deserve to be committed, — since, for anything I Icnow, they might at any moment seat themselves on tlie beiicli and act as judges. [1554. 1554-] yAMES DYER. 187 learned men maybe enhanced to think and judge things indifferent, or at the worst but oversights, to be great treasons. Almighty God, by the mouth of his prophet, doth conclude such advocates to be cursed, saying, ' Cursed be he that doth his office craftily, corruptly, and maliciously.' And consider, also, that my blood shall be required at your hands, and punished in you and yours to the third and fourth generation. You and the Justices, when called in question, excuse such erroneous doings by the verdict of twelve men : but I assure you such purga- tion serveth you as it did Pilate, and you will wash your hands of my bloodshed as Pilate did of Christ's. And now to your matter." An attempt was first made to induce the prisoner to confess, without any evidence being given against him, and he is thus interrogated : " How say you, Throgmorton, * Did not you send Winter to Wyat, and devise that the Tower of London should be taken?' — A. 'I confess I did say to Winter that Wyat was desirous to speak with him.' Q. ' Yea, sir, and you devised together of taking the Tower of London, and of other great treasons.' — A. ' No, I did not so: prove it.' " Dyer afterwards said, — " And it may please you, my Lords, and you, my masters of the jury, to prove that Throckmorton is a principal doer in this rebellion, many things are to be declared, — amongst others, — Crofte's confession. He saith, Sir Nicholas, that he and you, and your accomplices, did many times devise about the whole matters, and he made you privy to all his deter- minations." TJirockmorton : " Master Crofte is yet liv- ing, and is here this day; how happeneth it he is not brought face to face to justify this matter? Either he said not so, or he will not abide by it." Dyer : "For the better confirmation of all the treasons objected against the prisoner, and therein to prove him guilty, you of the jury shall hear the Duke of Suffolk's depo- sition, who was a principal, and hath suffered accord- ingly." " Then," says the report, " the .said Sergeant read the Duke's confession touching the prisoner, amounting to this effect, That the Lord Thomas Grey did inform the [88 REIGN OF QUEEN ELIZABETH. [1557 r i ii 'f \ said Duke that Sir Nicholas Throe kmortoti was privy to the whole devices.'' Throckmorton : " But what doth the principal author of this matter say against me ; I mean the Lord Thomas Grey, who is yet living? Why is not his deposition brought against me, for so it ought to be if he can say anything ? Neither the Lord Thomas Grey hath said, can say, or will say anything against me, notwithstand- ing the Duke's confession and accusation, or he should have been here now. The Duke doth refer only to what he says he has heard from the Lord Thomas." After a long trial, conducted in the same fashion, the j iry very properly found a verdict of NoT GuiLTY, — for which they were imprisoned and heavily fined.* This acquittal was a great mortification to the Government, although they had the consolation of convicting Sir John Throckmorton, Sir Nicholas's brother, on exactly the same evidence. Dyer was rewarded for his zeal (which was not con- sidered as having led him at all beyond the line of his professional duty) by being made a Puisne Justice of the Court of Common Pleas ; and, in the following year, he was promoted to be a Puisne Justice of the Court of King's Bench. He turned out to be a consummate Judge, although he had been only an indifferent advocate. He was al- lowed to be by far the best lawyer of his time ; he was above all suspicion of bribery, when judicial corruption was by no means rare ; he evinced extraordinary sound- ness of intellect, as well as acuteness ; and, caring nothing about literature, and very little about the re- ligious disputes which agitated the public, he was inde- fatigably industrious in the discharge of his official duties. Queen Elizabeth, who was above all things anxious to have the judgment-seat properly filled, the very day after her accession to the throne renewed his commis- sion as a Puisne Justice, bringing him back to the Com- mon Pleas ; and shortly afterwards she made him Chief Justice of that court, in the room of Sir Anthony Brown, whom, from being Chief Justice, she degraded to be a Puisne, and who was contented to serve under a » St. Tr. 869-902. «S59-] JAMES DYER. 189 Chief allowed by himself, as well as the rest of the world, to be greatly his superior.' " From roome to roome' he stept by true degrees, And mounts at Jenjrth to soveraigne justice' place, Where long he sat Chief Judge of Conion Plefs, And to say with truth lie sat with justice grilce Whose sacred will was written in his face ; Settled to heare but very slow to speake, Till either part, at large, his minde did breake. " And when he spake he was in speech reposde ; His eyes did search the simple sutor's harte ; To put by bribes his hands were ever closde, His processc just he took the poor man's parte, He rulde by lawe and listened not to arte, These foes to truthe — loove, hate, and private gaine, Which most corrupt, his conscience could not staine."' Fuller says, " Sir James Dyer remained Chief Justice of the Court of Common Pleas twenty years, — longer, it my eye or arithmetic fail me not, than any in that place before or after him." But as no criminal or political cases were within his jurisdiction, and he mixed so little with any thing beyond its strict limits, his subsequent career is less in- tcrcstincT, although it excited the admiration of his con- temporaries. He still employed himself in digesting notes of the most important cases which came into his court, or whicli, on account of their difficulty, were adjourned into the Exchequer Chamber before all the Judges.* — His " Reports " were not printed till after his death; but he had prepared thein for publication, and they afford a stupendous proof of his industry and learning. Although now of little use to tell us what the law is, ' If this precedent had been followed, it might have been very useful for Westminster Hall ; but however superior a puisne may have been esteemed to the chief, I am not aware of any other instance of their changing ])Iaces. "^ " Roome" in old English was used for offtce. <• Whetstones. * This course was very common then, and it ccjiilinued to Ije occasionally resorted to till tin: reign of George IV., when it was entirely superseded by the establi'-lnnent of a new system of courts of error, by which the decision.s of each of the superior courts of common law were subjected to the review of a iriiumal consisting of the judges of the two others. Another remnant of the Aula Regis was, the reference to all the judges of questions of criminal law, whirh was superseded in the year 1S48, by the bill I had the honor to introduce for establishing a court of appeal from courts of oyer and ter- miner, and from the quarter sessions. Xf;o REIGN OF QUEEN ELIZABETH. [1559. 11 ■h\ i tht^y are valuable records of the history of English juris- prudence and English manners. We have a case illustrating the custom of the mar- riage of children then prevailing. A boy of the age of twelve years contracted marriage with a girl of sixteen, per verba de prcEsenti ; the marriage was solemnized in the face of the church, and the married pair were put into bed together. The husband dying a few days after, the widow brought a writ of dower, claiming one-third of his lands. The heir pleaded, that they Jiad never been joined in lazvfiil matrimony.^ Her counsel cited an authority from the YEAR-BoOKof 12 Richard II., where, in a writ of dower, the wife, at the time of the death of him who was supposed her husband, was only of the age of eleven years ; and he who was supposed her hus- band, of the age of ten years and a half; and judgment was given, that she should recover seizin of one-third of her husband's lands. On the other side it was argued, that consent only constitutes matrimony ; that here the supposed husband had not reached the age of consent ; that, by all the authorities, he might have afterwards dissented and annulled the marriage ; and that the sup- posed consummation was a nullity ; a dictum of a learned judge in the time of Edward I. was relied upon: "A wife shall lose dower, if her lord (scil. her husband) die before nine years of age." Thereupon, a writ was directed to the bishop of the diocese, to certify whether this was a valid marriage ; and he returned a certificate, which Dyer, C. J., and Meade and Mounsen, JJ., against the opinion of Windham, J., held to be insufficient, and the action was abated. But, eight years after, it was revived, and a writ being directed to the successor of the former bishop, he certified that " the demandant is to be taken for a lawful wife and accoupled in lawful matrimony ;" so judgment was given in her favor, that she was entitled to dower, on the ground that " there had been espousals, and that espousals continue always till defeated by dissent ; whereas here, there had been no dissent, and at the time of the husband's death the marriage subsisted."* ' In Norman-French, " ne unques accoupl^s en loyal matrimonie." * Dyer, Rep. 313 a, 368 b. ■I ■,'!'! 1559] JAMES DYER. 191 mar- In Dyer's time, a man being convicted of a simple felony, — as stealing any chattel of the value of twelve pence, — if, when asked why he should not be sentenced to die, he prayed the benefit of clergy, the book con- taining the " neck verse " was put into his hand ; and if he could read, he was discharged ; but if he could not, he was hanged.* A question arose " whether, if a man, who may have his clergy granted in case of felony, prays his book, and, in fact, cannot read, and it is recorded non legit ut clcriciis, and, being respited for a time, he learns to read before he is executed, he shall have his clergy, notwithstanding the record ?" The matter was referred to all the Justices of Assize assembled at Sergeants' Inn, and it was resolved in favorcm vitce that he should have his clergy ; " for," said Dyer, " he should have had it allowed under the gallows by the Year-Book 34 H. 6. 49 a, b, pi. 16., if the judge passed by there, and much more here. And although he had been taught and schooled in the jail to know letters and read, that shall help him for his life ; BUT THE JAILER SHALL BE PUNISHED FOR IT.'" The most curious cases iu Dyer's Reports are upon questions respecting " villeinage " or slavery. It is not generally known, that, down to the reign of Queen Elizabeth, there were in England both " villeins in gross," or slaves that might have been sold separately like chattels, and " villeins regardant," or slaves attached to particular land, with which they were transferred along with the trees growing upon it. — I will give a few examples : — In an action of trespass and assault, there .vas a justi- fication by the lord of a manor that the plaintiff was his villein regardant^ and the evidence being that he was his villein in gross, the question arose, for which side judgment should be given? The defendant insisted that the substantial question was, "villein or free?" not " vilkin regardant or villein in gross ?" and that having greater rights over the plaintiff as " villein in gross " ' The " wisdom of our ancestors" in their criminal law was particularly shown in their treatment of women ; for as no woman could lawfully be a clerk (Pope Joan's case uot being recognized), all women convicted of lar- ceny were hanged, whether they could read or not. * Dyer, 505 a. T'^PT" I I 19a REIGN OF QUEEN ELIZABETH. [1559. than as " villein regardant," he had proved more than he was bound to prove, and the action was well barred. One judge inclined to this opinion, but the rest of the Court thought that, in favor of liberty, the plea must be strictly proved ; and peradventure the plaintiff was misled by the false issue tendered to him, and might have deemed it enough to negative the regardancy^ without bringing forward proof to negative the villeinage in gross. So the plaintiff became a free man.'" A. B., seized in fee of a manor to which a villein was regardant, made a feoffment of one acre of the manor by these words : " I have given one acre, &c., and further, I have given and granted, &c., John S. my villein." Question, " docs the villein pass to the grantee as a vil- lein in gross, or as a villein appendant to that acre ?" Two of the judges thought he should pass in gross, as there are several gifts, though in one deed ; while the other judges said that if the whole manor had been granted, with a further grant of "John S. my villein," the vil!ein would clearly have passed as part of the mano!, and therefore that the acre and the villein being granted together there was no severance. The Court being equally divided, no judgment seems to have been given," The tenant in tail of a manor, to which villeins are regardant, enfeoffs one of the villeins of one acre of the manor, and dies. Now he clearly had exceeded his power, although, had he been tenant in fee simple, the effect would have been, that the villein would have been enfranchised. But the question was, whether the son of the feoffer, who was heir in tail, could at once seize the villein ? The Court held that, although all the father had done might be disaffirmed, the son was bound, first to recover the acre of land, and then, but not till then, he might seize his villein.* " Dyer, 48 b. pi. l. » Dyer, 48 b. pi. 2. ' Dyer, 48 b. pi. 4. " So it is holden in our old books, if a villein be made a knight, for the honor of his degree his person is privileged, and the lord cannot seize him until he be disgraded." — Co. Litt. 136. If" a niefe, or female villein, was married by a freeman, the lord could not seize her, but might maintain an action against the husband for the loss of her : and if a villein was professed as a monk, the lord could not seize him, but miglil maintain a similar action against the superior of the convent who admitted him. — Liu sec. 202 ; 2 Bl. Com. 95, 96. ^- [1559- ore than 1 barred. st of the lea must ntiff was id might ^ardancyy villeinage llcin was nanor by 1 further, villein." as a vil- it acre ?" gross, as while the lad been ' villein," •t of the ein being he Court lave been Ueins are :re of the ;edcd his mple, the lave been r the son )nce seize 1 all the son was then, but 43 b. pi. 2. a villein be jged, and the If a niefe, or seize her, but ler : and if a m, but might vho admitted ! ^'i'iij ' aflsyiL'jijii.'i.:iJi ' j Mapi w^ -^ OLD HALL OF THE INNER TEMPLE. ^ ^59 " 4 ^r r?r n vr?P lot 111 I I' 1 1 ,n ' V I'll I '.i,r !■ u il . I,'. I' !• ■ I. I', '1 .'■. .1 i . .■(•l- l.t:.''" 1 11 ■ ■ ' 1 .l '1.: ,1 I I' ! ,.' ' 1.1 rial .> Ml' .■'■ .i;l ; 11,; • . '•'• <_ . I u I- 1,1 I'M., :i !■ Lin iiT. ; \ .' u ': til ivi ;iv .1-. Tt : .l.;i',t, U;u\ UMu: I 1 I I 1. 11 O! lIi: ^' , \. :■.':■■• .1 ■ ! .( rsiri ,<.• ;.i i:v i'< ' .1'- ti '■ ; ■..-.,, C'\- .i I > :;,.':,■..■■ ;.;■ ■ ■ t- ■ * ■..r.4 I"t,: 1 ' 1 1 • ^2^aK^4^i:ifi t' i^' T V. ' '■ ■ " ■ - ■■"■' '■' " ■ "" ' Kt' (5flRi?g!r»«virv9Tani'-?!*m-'> Bfcsai ■m I x. .(„: -v.,**.! ^:VM v-epii* 1 ! ■' V\ 1 |; nI 1 L. INM-'U . )'.\ ( I «SS9.] yAMES DYER. «93 Butler, lord of the manor of Badminton, in the county of Gloucester, C(JMtciuiin^ that Crouch was his villein re- gardant, entereel into certain lands, which Crt)uch had purchased in the county of Somerset, and leased them to Fleyer. Crouch thereupon disseized I'leyer, and l''le)-er brou;;ht an action a^^ainst Crouch, who pleaded that ho had purchased the land. Flcy(M* replied his lease from Butler, and allc^jcd that " lUitler and his an- cestors, ami all those whose estate he hath in the manor of HadmiiUon, were seized of Crouch and ids ancestors. as of villeins regardant to the same manor, from time whereof the memory of man runneth not to the con- trary." Issue being thereupon joined, the jury found a special verdict, " Tliat Butler and his ancestors were seized of the manor from time immemorial ; and that the ancestors of Butler were seized, during all that time, of the ancestors of Crouch as of villeins regardant, until the first year of Henry VII., and that Crouch was a vil- lein reganlant to the said manor, and that no other seizin of Crouch or his ancestors was had since; but whether the said seizin of the said manor be in law a seizin of the said Crouch and his ancestors since the said first )'ear of Henry VII. the jurors prayed the opinion of the Court." Dyer, C. J., and all the Judges of the Court of Com- mon Pleas, agreed that upon this verdict there should be judgment for the ilcfendant, chiefly on this gnnind, — "because no .ctual ur full seizin in Butler and his an- cestors, of Crouch and his ancestors as villeins regardant, is found, b.it only a seizin in law, and the lord having let an hundred years pass without redeeming, the villein or his issue cannot after that seize them." ' The only criminal case of much celebrity in which Lord Chief Justice Dyer was concerned was the trial of ' Dyer, 206. pi. ii. Villeins in gross as well as villeins rega* dant were ' iiisiilered real pruperly. Littleton thus defnies villeins in gross ; " Tf a man I'' his aneestors, wlio-^c heir he is, hive becii seized "' i villein, and of his • lecNtors as of villeins in gross, time out ol memor. ii man, these are vil- leins in gross." (/,///. sec. i8i,) Villeinage i^ supposed to have linallydis- fijipcaied in the reign of James I., but tlieic is gi' ,U difficulty in saying when it ceased to he lawful, for there has horn no si , lute to abolish it ; ana by the old law, if any freeman acknowledge !iiin.>elf in a court of record to .'><; a villein, he and all his afierljora issue a.ul ilioir il, icndants werr villeins. — I.i/f. sec, 185. giii^:, M ' ^94 REIGN OF QUEEN ELIZABETH. [1580. M . \ Thomas, Duke of Norfolk, for high treason in assisting the claim of Mary Queen of Scots to the crown of Eng- land. On that occasion, he attended with the other Judges to assist the Lord High Steward and the Peers, who were to pronounce on the fate of the noble prisoner. The Duke, when arraigned, having prayed that coun- sel might be assigned to him, and cited the case of Humphrey Stafford, Duke of Buckingham, as a pre- cedent in point. Sir James Dyer said, — " My Lord, that case of Humphrey Stafford, in prinio Henry VH., was about pleading of sanctuary, for that he was taken out of sanctuary at Culneham, which be- longed to the Abbot of Abingdon ; so the question was, whether he should be allowed sanctuary in that case, and with that form of pleading, which was matter of law : in which case he had counsel, and not upon the fact of high treason; but only for the allowance of sanctuary, and whether it might be allowed, being claimed by prescription, and without showing any former allowances in Eyro ; but all our books do forbid allowing of counsel in treason." Duke. — " I beseech you, weigh what case I stand in. I stand here before you for my life, lands, and goods, my children, and my posterity ; and that which I esteem most of all, for my honesty. I am unlearned ; if I ask anything, and not in such words as I ought, I beseech you bear with me, and let me have that favor the law allows me. If the law does not allow me counsel, I must submit me to your opinions. I beseech you, con- sider of me. My blood will ask vengeance if I be un- justly condemned. I honor your learnings and your gravities ; I beseech you have consideration of me, and grant me what the law will permit me." The other judges confirmed the rule as laid down by the Chief Justice of the Common Pleas. He does not appear afterwards to have interfered, and he cannot be considered answerable for the unjust conviction which followed.' If ruffled by any annoyance in the discharge of his ju- dicial duties, he prayed to Heaven for composure, and 'St. Tr. 957.1042. iSSo.l JAMES DYER. »95 when he returned home he played an air on the vir- ginals. " For publique good, wh»n care had cloid his minde, The only joye, for to repose his sprights, Was musique sweet, which showed him well inclind ; For he that dooth in musique much delight A conscience hath disposed to most right ; The reason is, her sound within our eare A sympathie of heaven we thinlc we heare."' There was one charge brought against him for arbi- trary conduct as Judge of Assize. He always, accord- ing to the fashion of the times, rode the same circuit, and he chose the Midland. He seems to have rendered nimself unpopular upon it by rigidly discountenancing the jobs and oppressions of magistrates, and perhaps by the prejudices and partialities which are apt to inflence a judge who becomes too familiar with those among whom he is to administer justice. At last, a " supplica- tion," or memorial, from the justices of Warwickshire, containing nine heads of complaint against him, was presented to the Queen and the Privy Council. They were chiefly of a frivolous nature, as, for example, " that a gun going off accidentally during the assizes, he ac cused the justices of a general slackness of their duties, saying, ' they ruled the country as pleased them, and that there was nothing with them but sic volo, sicjuheo.' " In his written answer, now extant among the MSS. of the Inner Temple, he says, " As to the shooting once of a gun in the time of the assizes, I am sure I was not so greatly offended, if it were not of purpose done ; nor were these words sic volo, sic j'ubeo, used by me in the sense al- leged." He justifies himself at great length for what he had done, in supporting a poor widow against the tyranny of a cruel knight, backed by other justices ; and he thus concludes, — " All which premises being true, as indeed they are, I ask judgment of the said Lords of the Council, and all others indifferent, whether I had just cause ministered unto me by the defaults of the justices and government of the shire, and slackness of her Majesty's service, to be angry and vehemently moved to choler. And although I did say in excessu meo, ' omnis homo mendax' ' Whetstones. V 196 REIGN OF QUEEN ELIZABETH. [iSSa. (as David said), yet for mine age and long continuance there, which hath been above twenty years in that cir- cuit, I am rather to be borne with than complained of." Luckily for Dyer, Sir Thomas Bromley, lately ap- pointed Lord Chancellor, was his fast friend, so that due weight was given to his defense, and he was allowed to continue in the exercise of his office. But, about two years afterwards, he encountered an enemy whom no Chief Justice or Chancellor has been able to conquer — Death. Being struck by a sudden disease, while still in the full possession of his faculties, he expired at Great Stoughton, in the county of Hun- tingdon, in the 71st year of his age. In the parish church there may still be seen a monument erected to his memory by his nephew, with the following in- scription : " Deyero tumulum quid statuis, Nepos, Qui vivit volitatque ora per omnium ? Exegit monumenta ipse pcrennia, In quels si)irat adhuc ; spiiat in his themis, Libertas, Pietns, Munificcntia. En decreta, libros vitam, obitum senis ! yEternas statuas ! Vivit in liis themis, Libertas, I'ietas Munificientia. /Eternas statuas lias statuit siin : yEtcrnis statuis cedite marmora !" Among his contemporaries Dyer was universally es- teemed the most perfect model of a Judge for learning, integrity, and abilities. The eulogium of Camden is only the echo of the public voice: " JACOBUS DiERUS," says that annalist, " in comniuni placitoriim tribtinali jfusticiarius Priuiarius qui aniino semper placido et sere?io onmes j'udicis ccqiiissiini partes iiiiplcvit ; ct juris nostri priidentiam coiiinientariis illustravit'' Whetstones particularly lauds the disinterested exer cise of his patronage: " Fit men he did in office ever place, And ofte put by his freends and neerest kin Affirming, tliough the gifte were in his grace, ' The conimon-weale cheef intrest had therein, And therefore meet the worthy should it win ;' Words like himself, who favoured publique good, Before their gaine that were spronge of his blood." He bequeathed his '• REPORTS" to his nephews, who 1582.] JAMES DYER. 197 published them soon after his death, with a dedication to Lord Chancellor Bromley, in which they say — " Quamvis supervacaneum fortasse videri possit (ra- tione prsesertim rei ipsius habitu, Authorisque facultate perspecta) Protectorem ct Patronum adscribere ; tamen cum mors nobis Authoris vitum inviderit, multosque ha:c nostra aetas protulerit, quibus cordi est alienae in- dustriffi obtrectare, opere precium existimavimus huic nostrae orbitati alterum patrem parentemque adsciscere, quem quidem te(vir insignissime)ut aptissimum,itaet pa- ratissimum fore humillimc obsecrare tandem statuimus." In an English address " To the Students of the Com- mon Laws of this realm," the editors express a wish "that the good acceptation and friendly thankfulnesse of all such as are to receive knowledge and fruit thereby, may appcarc such as the late reverend Judge and paine- fuU Author thereof may receive the guerdon worthie his exquisite and painfull travaile." We have likewise " T ECTOKI Carmen," which, after comparing Dyerus , ■■ x'.'.Q. bee, who collects honey for others, thus proceeds * " Fasciculum causas omnes congessit in unum Curia quas lustrix sex celebrata dedit. Edidil has alter, fructus ut prostcra proles rerci]HMot, tanto qui placucr? viro, Edidit ut semper post funera viveret author: Quem rapuit studiis mors inamica piis." I am afraid tha«" the hope of immortality from LAW Reports is visionary. But Dyer may really be consid- ered the Shakspcare of Law Reporters, as he had no predecessor for a model, and no successor has equaled him. As yet his fame flourishes, and those who are most competent to appreciate his merit have praised him the most. Thus writes that great lawyer, Sir Har- bottle Grimston : " If we have failed in the number of persons reporting, it hath been amply recompensed in the grandeur and authority of one single author, SiR James Dyer, Chief Justice of the Common Pleas, by whose great learning and assiduous study the Judgments and Law Resolutions have been transmitted and perpetuated until the 24th year of the late Queen Eliz- abeth."' ' Pref. to Cro. Car. ,4 ? 198 REIGN OF QUEEN ELIZABETH. [1555 He was married to Margaret, daughter of Sir Mauiice d Barrow, and relict of the celebrated philologist Sir Thomas Elyot, author of " The Governor." By her he had no issue. His estates went to a collateral branch of his family, which flourislied for several generations, and wr iionoredwith a baronetcy; but is now extinct. The last male representative of the Chief Justice ended his days in a workhouse ; whereas it was expected, in the reign of Queen Mary, that in future times the Dyers would be more distinguished than the MONTAGUES. Ra- ther than to be ancestor of the dukes or of kings, it is more glorious to deserve the praise quaintly bestowed on this great and good man : — " Alive, rcfdge ji" those whom wrong did paiiie, A Dyer sucii as dyde without a siayite,"^ I must now return to the Court of King's Bench, in which, after the very obscure Chief Justices who had pre- sided there in the latter part of the reign of Henry VHI,, and in the reigns of Edward VI. and of Queen Mary, Queen Elizabeth placed a distinguished man, whose name is still held in reverence by lawyers, although he has not gained an historical reputation — SlR RouEUT Catlyne.' His supposed extraction is a burlesque upon heraldic pedigree, for his ancestor, more distinguished than any of the companions of the Conqueror, has been said to be no other than the conspirator LuciUS Catilina, who, instead of having fallen in battle, as is related by Sallust, escaped into Britain, and left descendants in Kent, d pro- vince which had reached a considerable decree of civil- ization before it was visited by Julius Caesar. Fuller, though much disposed to puff the Chief Justice, is mod- estly contented with saying, " His name hath some al- lusion to the Roman senator who was the incendiary of that state, though in nature far dilTercnt, as who, by his wisdom and gravity, was a great support to his nation." ' Our Chief Justice certainly was descended from the Catlynes of Rounds in Northamptonshire, v/ho had been long settled there, and were a branch of a family of the same name which had flourished from time immemorial ' \Vhctstones. * Spelt likewise Catlyn, Catelyn, Catalyn, Catlin, Catelin, an k 300 REIGN OF QUEEN MARY. [1559- In the following year, he was promoted to the rank of Queen's Sergeant, and towards the end of Mary's reign he was made Puisne Justice of the Court of Common Pleas. He had, from the first, a high judicial reputation, on account of the gravity of his deportment and his profound knowledge of the law ; and, although inclining to th' n'::w doctrines in religion, he was so discreet as to conf \ to the creed of the Court, whatever that might be, -^ iiowing the example of the most approved states- men of that age. This gave no offense to Elizabeth ; and upon her accession, having taken her Prime Minister and her Chancellor from the same class of conformists, she made Sir Robert Catlyne, who was now a professed Protestant, Chief Justice of England. He held the office with increasing respect above The first course, two mess of meat. Second course, ) two mess of meat. ) ) A standing dish of wax, representing the ) ) Court of Common Pleas, artificially made ) A spuld of brawn for either mess - Boiled capons in white broth, 2 at a mess - Swans roasted, 2 ; each mess one - Bustards, 2 ; each mess one - - Chemet pies, 8 ; to each mess 4 - Pikes, 4 ; to each mess 2 - - Capons roasted, 4 ; to each mess 2 - Venison baked, 4 large parties ; every mess 2 - ... Hern and bittern, each mess 2 Pheasants roasted, 4 ; each mess 2 - Custards - - ... A standing dish of wax, to each mess one - - - - Jellies planted, 2 dozen Cranes, 2, each mess one Partridges, 12 ; for each mess sfx - Red deer, 4 pasties ; each mess two Certain large joules of sturgeon, to each mess one - - - - Woodcocks and plovers, 12 each mess Quince pies, baked, 8 ; each mess four Rabbit suckers, 12 ; each mess six Snipes roasted, 12 ; each mess six - Larks, 3 dozen ; each mess a dozen and a half - - - - March-panes, 2 ; each mess one' - £. J. d. 4 5 I I 10 10 16 16 .400 -100 . o 16 o - o 16 o 068 040 034 020 068 • Sweet Cakes. Lawyers' feasts now-a-days are not to be despised ; but are nothing compared with those of our predecessors in the times of the Tu- dofs. «57i.] ROBERT CATLYNE. aoi fifteen years , but it is only from the generous praises bestowed upon him by contemporary writers, and from the traditions of Westminster Hall, that we appreciate his merits, for he was not an author himself, and there are hardly any reports of King's Bench decisions in his time. The only state trials in the early part of Elizabeth's reign were those of the Duke of Norfolk and of Hick- ford his secretary. At the former, which took place before the Lord High Steward and the Peers, Lord Chief Justice Catlyne, attending as assessor, was several times appealed to for his opinion. When the point had been settled about the assignment of counsel, the pris- oner said — " I am now to make another suit to you, my Lords the Judges: I beseech you tell me if my indictment be perfect, and sufficient in law ?" Lord C. y. C. : " For the sufficiency of your indictment it hath been well con- sidered by us all, and we have all with one assent re- solved, and so do certify you, that if the causes in the indictment expressed be true in fact, the indictment is wholly and in eve» part sufficient." Duke: "Be all the points treasons.''" Lord C. J. C. : " Ail be treasons, if the truth of the case be so in fact." Duh' ; " I will tell you what movcth me to ask you this. I have heard of the case of the Lord Scrope ; he confessed the indict- ment, and yet traversed that the points thereof were not treasons." Lord C. J. C. : " My Lord, he had his judgment for treason upon that indictment, and was executed in the reign of Henry V." A deposition or confession of the Bishop of Ross being afterwards offered in evidence for the Crown, the Duke objected that he was a Scot, and that, having ad- mitted himself to be guilty of high treason against his own sovereign, he ought not to be received as a witness. Lord C. J. C. : "Though a Scot, he is a Christian, and he has not been attainted or outlawed of treason, nor yet indicted." Duke : " It is worse ; he has confessed treason. Bracton, if I mistake not, says that witnesses must be legalcs homines ; and so cannot strangers be, like the Bishop of Ross." Lord C. J. C. : " Bracton, indeed, is an old v riter of our law, and by Bracton he may be \i f>K ' >. I 202 REIGN OF QUEEN ELIZABETH. [1571 a witness ; a stranger, a bondman may be a witness. Ask you all the Judges here?" All the Judges: "He may, he may!" Duke: " You shall not recover lands upon the evidence of a stranger, much less con- vict of treason." Lord C. J. C. : " This would be a strange device, that Scots may not be witnesses ; for so, if a man would commit treason, and make none privy but Scots, the treason were unpunishable." Duke : " In case of treason they may be heard as witnesses for the Queen, although it restcth in the breast of the Peers whether or no to afford credit unto them." Catiyne cannot be said to have violated the rules of evidence ; for written depositions or confessions of per- sons alive were then considered clearly admissible in capital cases, and the circumstance of alienage, as he stated, could only go to their credit ; but he can hardly be defended from the charge of consciously perverting the law of treason. The chief matter urged against the prisoner was, that he had sent a sum of money into Scotland to assist the party there which took the side of Mary, the absent Queen, against the Regent, whom Elizabeth patronized, there being peace between the two countries. Duke of Norfolk : "The statute of Edward III. only makes it treason to compass the death of the sovereign, or to levy war against him, or to aid his enemies ; and there is no proof that I did any of these things." Lord C. J. C. : " Usage is the best expounder of the law ; and we know that, as this statute has been expounded, you are guil* ^' if you have said or done as the witnesses tell of you." 1 uke : "Supposing it proved that I sent money to the Lord Harris, the subject of the Queen of Scots, how can that be aiding an enemy of our Lady the Queen of England ? May a subject be the Queen's T^Iajcsty's enemy, while the Prince of that subject is her friend and in amity with her? Lord C. jf. C. : " In some cases it may be so ; as in France, if the dukedom of liiitany should rebel against the French King, and should (dur- ing the amity between the Frencli and Queen's Majesty) invade England, tliose Britons would be the French King's subjects and the Queen's enemies, though the French King remaineth in amity; and so in your case. At» iti-tA^'r^nu}-',A*^^- :*. ■■,-', '57i] ROBERT CATLYNE. 203 Now this is clearly sophistical rcasonini^ ; for although an Englishman, who joined the invading army from Britany, would certainly have been guilty of high treason, it would have been for levying war against her in her realm, and for adhering to her enemies.' The Judges must all have felt some remorse when, sentence of death being passed upon the prisoner, he said — " I trust shortly to be in better company. God doth know how true a heart I bear to her Majesty, and how true a heart to my country, whatsoever this day hath been falsely objected against me.'" The trial of Robert Hickford, the Duke's secretary, for high treason, came on soon after at the bar of the Court of King's Bench at Westminster. In fact nothing more could be proved against him than that he had written in cipher, and deciphered some letters which had passed between his master and Mary Queen of Scots and the Jiishop of Ross ; but he deemed it more prudent to plead guilty, and to pray for mercy. Lord Chief Justice Catlyne then parised sentence upon him in a very long and elaborate discourse, from which I shall make a few extracts to show the taste of the times : — "Thou art a gentleman wise and well learned : I wish to God there had been in thee as much loyalty and truth as there is learning and other good qualities and gifts of God ; then hadst thou not fallen into this great fault and misery. But there have been evil enticers, evil schoolmasters, evil seedsmen ; they have brought thee from truth and good estate to untruth, treason, and wretchedness; where, before, you and others were of good name and fame, they have brought you to infamy; of loyal, good, and true subjects, they have brought you to the name and state of disloyal traitors. A great blot to be a traitor, and the greatest infamy that can be. It is the chiefest point of the duty of every natural and reasonable man, which by the gift of reason differeth from a beast, to know his prince and head — to be true to his head and prince. All the members arc bound to ' During the Canadian rebiillion, I gave an opinion as Attorney General, wliich was acted upon, that an armed bantl of American citizens who in- vaded our territory without the authority of their government were liable to be treated as traitors. * St. Tr. 957-1042. 204 REIGN OF QUEEN rjJZADETH. [1571. ■ \ obey the head ; every man is bound to risk life, to lay out and expend goods, lands, and possessions — to for- sake father, mother, kindred, wife, and children, in re- spect of preserving the prince ; for in defending the prince they preserve father, mother, kindred, wife, chil- vlren, and all. All the duties to father, mother, friends, kindred, children, yea, to a man's wife, that is his own flesh, are all inferior to the duty that a subject oweth to his prince. If in any case they shall allure a man from his prince they must be forsaken — they must come be- hind ; it must be said ' vcxdc post me, Sataiia.' We must first look unto God, the High Prince of all princes, and then to the Queen's Mdjcsty, the second prince and God's deputy, and our sovereign prince on earth. You arc wise and learned, as your master was ; but the evil seedsmen, the evil seducers and enticers, have wrought evil effect in you both. The great good Seedsman hath sowed in you good gifts, learning, knowledge, and good quality to serve Mim, your prince, and your country withal ; as it is said in the Gos\ic\, Bonus scminator scmi- navit sciiicn bonuin, but supcrvcnit inimiciis ct scmiiiavit t-i;:unia ; the good seedsman sowed good seed, but there came the enemy, and he sowed darnel, cockle, and noisome weeds. Such wicked seedsmen have been in England ; if they had sown the right seed for tiicir own use, the seed of hemp, and felt of it, they had received according to their deserving. If they had been handled as they deserved, they should long ago have had of their own due seed, hemp, bestowed upon them, meet seed for such seedsmen." He proceeds to explain how certain foreign am- bassadors at the Court of England were the wicked seedsmen, and to prove that they might lawfully be treated with a hempen cravat ; giving, as an illustration, the case of M. de Marveilles, ambassador of Francis I., "who was beheaded Jure gentium, at Milan, for con- spiring against the prince to whom he was accredited." Thus he concludes that topic : — " May messengers conspire treason against princes to whom they be sent ? Treason to princes is not their message ; it is no lawful cause of their sending ; if of their own heads thev presume it, their own heads must "A ■ i v i57».] ROBER T CA TL WYE. ao5 answer for it. As for thcni lluit sock fume by treason, and by scekint^ the destructio!i of princes, what shall sound that fame? Shall the j,foklen Trump of Fame that Cliaucer speaketii of? No ! but the black Trump of Shame shall blow out their infamy for ever.'" Lord Chief Justice Catlyne spent the rest of his days in the quiet routine of his judicial duties, and died in the autumn of the year 1574, at his country seat at Neweidiam, in Bedfordshire, where, accordins^ to the directions of his will, he was privately buried, without any monument beim^ erected to his memory. W'th the opportunity of amassing great riches, he died poor, leaving behind him a high reputation for dis- interestedness, as well as learning and ability, lie would not accept any grant of church lands; and allhough his place of residence had been the site of a priory, he had purchased it at a fair price, paid from his honest earnings.' A descendant of his having spoken disrespectfully to a Chief Justice, whose hands were not ;:o clean, and being thus rebuked, " 1 expected not such treatment from one whose kinsman was my predecessor in this court, and a great lawyer," made answer, " My Lord, III' was a very honest man, for he left a sm il estate. lie married Anne, daughter of Thomas I'owles, Esq., by whom he had an only daughter and heir. She be- c.itnc tlie wife of Sir John Spencer, of Althorpe, in the county of Northampton ; and from them descend the Dukes of Marlborough, so that llic Russells, and most of the greatest families in England, may easily trace Sir Robert Catlyne in their pedigree, — if they should be disappointed in their wish to go up to the CON- SPIRATOR. The office of Chief Justice of the King's Bench was held during the next eighteen years by SiR CllRlS- TOl'HKR Wray, of whom little is known, except from the Law Reports and the Parliamentary history. His parentage even is doubtful. There arc two statements ' St. Tr. 1044. I must say, for the honor of Westminster ll.ill, that not- withstanding the quaintness of this composition, I doubt whether the pulpit, the stai^e, or parliament, had yet produced anything better. Every one must admire its rhymthmical cadences. ' Il/son's Bedfordshire p. 89. * Fuller's Worthies, ii. 568. 2o6 REIGN or QUERN Kl.l/.AliETJI. [157J. \\k t oil tlij suljjcct ill tliJ book;} of til.! [lorukrs College : (iiio says that he was " the son of Tlioinas Wray, of Richinoiuishirc, by the daughter and lu:ir of Richard Jackson, in the county of York;" and the other, that he was "the natural son of Sir Christopher Wray, Vicar of Hornby, l/j/ a xvcnch in a belfry, and brought up to the study of the law by a brother of his repnteil father, who was u servant of the Lord Conyers of Hornby." 'I'he latter is the more probable story; and in the Visitation of the county of Lincoln by the Her.dils in 1634, there is a pedigree of the family, sij^ned by his j;randson and heir, Sir John Wray, liart., commencing with the Chief Justice, and giving the arms of Wray, which were granted to him without any quartering of the arms of Jackson ; whereas, if legitimate, to the rep- resentation of that family he would have been entitled and he would have laid claim. He seems, under the disadvantages of birth, to have raised himself by energy and fair character, without shining abilities. The first perfectly authentic informa- tion we have of him is, that he took the degree of the coif in 1567, and soon after he was made a Queen's Sergeant.' \\\ April, 1 571, he was returned to parliament; and he must then have been very high in his profession, for he was elected Speaker of the liouse of Commons, — a post, in those days, always conferrec' upon an eminent practitioner at the bar. His speech to the Queen, when presented to her for confirmation, is extant, but too long and dull to be copied. He began by proving the Queen's title to be Head of the Church, " from the remembrance of Lucius, the first Christian King of Britain, who, having written to Elutherius the I'opc, 1300 years past, for the Roman Laws, was answered that he had the Holy Scriptures, out of which he might draw good discretion, for that he xvas the Vicar of Christ over the people of Britain'' After enumerating acts done by subsequent sovereigns to check the encroach- ments of the See of Rome, he says, " In the reports of the law we find that an excommunication of a certain person came from the Pope, under his leaden bull, and * Dugd. Cbroa. Ser. «574.] CHRISTOPHER WRAY. S07 t ; and on, for jns, — a nincnt when t too K the \\\ the l^r of I'opc, wered nii|,^ht was showed in abatement of an action at common law; which, hc-'^iilc that it was of no force, the King and jii'l;^'cs were of mind that he who brought it had de- served deatli, so to presume on any foreign authority; wliich aulliority being now by (jod's grace and her lliglincss's n\tans aljolishcd, and the freedom of con- sciences and tiie truth of God's word established, we ought greatly to thank God and her." Having dis- coursed very tediously concerning religion, government, and legislation, ami cjuoted Plato " r/i* Legihus," he con- cluded with a just com[)limont to Elizabeth, "that she had giveii free course to her laws, not requiring the stay of justice by her letters or privy seal •, as hcretofoi'i sometimes luith been by her progenitors used ; nt ithcr hath she pardoned any without the advice of tho'-e be- fore whom the offenders have been arrai-nicd, anci the cause heard." The Queen's answer was very courteous to him ; but for his guitlance as a Speaker she told him, that ^* iXr: Commons would do well to meddle with no mi '♦^ers of state but such as should be propounded unto tl era and to occu[)y themselves with other matters conceming the commomvcalth." Mr. Speaker Wray did his best to enforce obedience to this injunction, but, in spite of him, motions were brought forward about the abuse of the prerogative in granting monopolies, and the necessity for an acL of par- liament to settle the succession to the crown. At the close of the session she highly censured those audacious members of the nether house " for their arrogant and presumptuous folly, thus by superfluous speech spend- ing much time in meddling with matters neither per- taining to them nor within the capa. ity of their under- standing.' However, no blame was imputed to Sir Christopher Wray ; and as a reward for his services, he was made a Puisne Justice of the Court of Common Pleas.' When elevated to the bench, he was distinguished not ' Pari. Hist. 724. ' Acconliny to Dujjdale, his patent bore date May 14, a fortnight before tile prorogation ; but I think this must be a naistake, for tlie common law judges never sat in the House of Commons except during the Common- wealth. Ill: «•! H i «o8 REIGN OF QUEEN ELIZABETH. [1581. only by great skill in his profession, but by a striking decency of demeanor, which gained him much respect from the bar and the bystanders. On the death of Sir Robert Catlyne it was seen that troub'ous times were approaching, from Mary Queen of Scots, lawfully the heir presumptive and actually the pretender to the throne, becoming impatient of the cap- tivity in which she had been long held, and from many being disposed at any risk to vindicate her claims. There was an equal dread of retaining her as a prisoner, and of setting her at liberty ; and, as assassination and pois- oning were reckoned un-English, the idea began to gain ground that it might be necessary to get rid of her by the forms of law, for which there were plenty of prece- dents in recent reigns. Lord Keeper Sir Nicholas Ba- con, therefore, pointed out to Elizabeth the importance of having a safe man at the head of the administration of criminal justice, and he recommended to her Sir Christopher Wray, reminding her of the maxim which, with her approbation, he had adopted for his own motto, Mediocria Firma. She, ever prudent in judicial ap- pointments, 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, and, after tiie office had remained vacant a few weeks, Sir Chris- topher Wray, to the envy of the puisnies, was installed in it ; for they all thought themselves superior to him, notwithstanding the higli merits discoveretl in him by the Lord Keeper's harangue when he was sworn in. The '\^\v Chief Justice fully justified the choice made of hiiu. 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 that of Campion the Jesuit and the other priests accused along with him of a conspiracy, 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 > fuller. i58i.] CHRISTOPHER WRA V. 209 with the dextrous manner in which he obtained a con- viction, by the display of great seeming cahnness and forbearance. 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 intemperate sallies. When arraigned, he wished, con- trary to a well-known rule of procedure, to make a speech in defense of his innocence : IVray, L. C. 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 defense, and me to sit indiffer- ent between her Majesty and yourself: whereupon I counsel you now to say Guilty or A^ot Guilty." The evidence was wholly insufficient to make out the charge of treason, and merely proved that the prisoners had come on a fanatical mi: ion from Rome in the hope of reconverting the kingdom to the true fiiith.' The Chief Justice, however, by preserving the same tone, not only persuaded the jury, but the prisoners themselves, that he was their counsel, according to his duty as judge. Having allowed them to address the jury several times without interruption, he observed, " If you have any more to say, speak, and we will hear you until to-mor- row 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 indifference." 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. y. : " Campion, and the rest, what can you ' \V'liile Ciimpion lay uiiilcr accusalion in the Tower he was several times i-xaniiiR'd uiulor torliuc, and ^avo sucli jlcvcr aii:5wcrs, that Elizabeth had a ^Mvat curiosity to soe liiin. " Hy her onkr ho was secretly brought one eve- w'wv^ frijiii the Tower, and introduced to lui 't the house of the Earl of Leicester, in the presence of tliai nobleman, of the Earl of Bedford, and of the two secretaries. She asked him ' if he acknowledgctl her for Queen ?' lie replied ' nut only for (Hieen, but for 'tis laiv/itl Qiiixii.' She then imjuired 'if he believed that the Tope could excommunicate her lawfully?* lie answered ' that he was not a suflicient umpire to decide in a controversy between her Majesty and the Pope.' " — Liit^ani, viii. 147. I— 14. 2IO REIGN OF QUEEN ELIZABETH. [1584. HM .'& 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 other- wise have been, 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."' The next state criminal was William Parry, indicted before special commissioners for a plot to murder Queen Elizabeth. He had confessed being concerned in the plot, and had given a detailed account of it, but, having been employed as a spy, both by Burleigh and by the Court of Rome, it is doubtful whether, in this instance, he did not accuse himself falsely. Upon his arraign- ment he pleaded Guilty, l;rasting to a pardon; but, the plea being recorded, ho became frightened, and wished to retract it. This indi!'_;eiice the Court refused, and he was asked why judgi:i.nt of death should not be awarded against him : Parry : " I see I must die, because I am not settled." Sir Christopher Hatton (one of the commissioners) : " What meanest thou by that ?" Parry : " Look into your study and into your new books, and you shall see what I mean." Sir Christopher : " Thou doest not well to use such dark speeches, :mless thou would plainly utter what thou meanest thereby." Parry : " I care not for death ; I will lay my blood among you." Lord Chief Justice Wray was then called upon to pro- nounce the sentence, and spoke as follows : — " Parry, you have been much heard, and what you mean by being ^settled' I know not ; but I see that you are so settled in popery, that you cannot settle yourself to be a .,ood subject. Thou hast committed horrible and hateful treason against thy most gracious Sovereign, and thy native country. The matter most detestable-- the manner most subtle and dangerous. The matter was the destruction of a most sacred and annointed Queen, thy sovereign and mistress ; yea, the overthrow • I St. Tr. 1049-1088. % «5«7.] CHRISTOPHER WRA Y. an of thy country in which thou wast born, and of a most happy commonwealth whereof thou art a member. The manner was most subtle and dangerous beyond all that before thee have committed any wickedness against her Majesty. For thou, making show as if thou wouldst simply have uttered for her safety the evils that others had contrived, didst but seek thereby credit and access, that thou mightest take the after opportunity for her destruction. And for the occasions and means which drove thee on, they were most ungodly and villainous, as the persuasions of the Pope, of papists, and of popish books." His Lordship, having indulged in a very lengthened tirade against the Pope, papists, and popish books, pronounced the usual sentence in high treason, which was executed a few days after, although the unhappy man declared that he was in truth innocent, and had only acted by orders of the government to entrap others. He died unpitied. -" neque ciiim lex tequior uUa Quam necis artifices arte perire sua."' Lord Chief Justice Wray was named in the commis- mission for the trial of Anthony liabington, and in that for tlie trial of the Queen of Scots herself; but he did not take a leading part in cither of them, being super- seded by the zeal of Sir Thomas Bromley, who then held the Great Seal, and of Sir Christopher Hatton, who was eager to hold it." He presided in the Star Chamber, however, when the scandalous mockery was exhibited which arose out of the feigned resentment of Elizabeth on account of the execution of Mary. He then, for some temporary con- venience, held the office of Lord Privy Seal as well as Chief Justice, and so had precedence over several peers of high rank who attended. He must have been well aware that Secretary Davison, in sending off the warrant for the bloody deed to be done at P'otheringay, acted with the full concurrence of his colleagues, and in com- pliance with the wishes of his royal mistress ; but he con- ducted the proceeding with all solemnity, as if a public 1 I St. Tr. « I St. Tr. 1095-II12. I127. U67 i Lives of Chancellors, vol. ii. chaps, xliv. xlv. n/1 n^l ,i. i ai3 REIGN OF QUEEN ELIZABETH. [1587. functionary had acted in disobedience of orders, and had thereby brought obloquy upon the sovereign and calamity upon the state. After the invectives of the Attorney-General and the other counsel for the Crown, Davison mildly observed " that the warrrnt having passed the great seal by the Queen's express orders, it was to be executed as a mat- ter of course, without further making her privy to the execution." T.oid Chief Justice Wray exclaimed, " Mr. Davison, to call the warrant irrevocable you are deceived, for her Majesty might have revoked it at her pleasure." He then required all the councilors present to express their opinion, beginning with the junior, Sir Walter Mildmay, who, after enlarging upon the enormity of the offense, proposed for punishment a fine of 10,000 marks and perpetual imprisonment. The other councilors, up to the Archbishop of Canterbury, having made similar speeches, and approved of the proposed sentence, Wray, Chief Justice, likewise spoke in aggravation, contending; that the Queen's express authority for executing the wrrrant ought to have been obtained, and that the secre- tary was alone answerable for Mary's death. Thus he concluded : — " Surely I think you meant well, and it was bonuin, and not bene. Finally, I agree that the punishmciit shall be as it was first of all assessed. But further I mu^t tell you, that, for so much as the fault is yours, this prosecu- tion declares her Majesty's sincerity, and that she had no privity in your act, and that she was olfended there- withal. Further, my lords, I am directed to signify to you from her Majesty, that forasmucli as the son's rela- tion in telling then that she was pleased, and what they did was for her safety, and they be sorrowful because they were abused by him, tlierefore her Majesty im- puteth no fault to any, but only to him, and the rest she doth unburden of all blame." * This is certainly one of the most discreditable pro- ceedings during the reign of Elizabeth, and reflects much disgrace on all concerned in it, except the veteran secre- tary Davison himself, who boldly defended his innocence, and exposed the duplicity and fraud of his persecutors, • I St. Tr. 1229-1250. IBI 1589.] CHRISTOPHER WRA Y. 213 although he thereby deprived himself of all hope of mercy.' Lord Chief Justice Wray's last appearance at a state trial was when the young Earl of Arundel, son of the Duke of Norfolk, had been reconciled to his own wife after having been once the lover of Elizabeth, and was therefore brought to trial on a frivolous charge of treason for having wished success to the Spanish Armada. All the Judges attended as assessors; and the Chief Justice of the King's Bench, as their Coryphaeus, gave the de- sired answers to the questions put to them, for the pur- pose of obtaining a conviction ; this caused such scandal, that Lord Burghlcy and Sir Christopher Hatton advised Elizabeth against staining her reputation with the blood of the son as well as of the father, and his life was spared, although he was detained in the Tower till he died, after an imprisonment of eleven years." Lord Chief Justice Wray, between the Crown and the subject, by no means showed the independence for which he was celebrated between subject and subject ; yet his partiality and subserviency in state trials did not shock his contemporaries, and are rather to be considered the reproach of the age than of the individual. Till Lord Coke arose in the next generation, England can scarcely be said to have seen a magistrate of constancy, who was willing to surrender his place rather than his integrity. Wray, upon the whole, was very much respected, and he held his office with general approbation down to the time of his death. Sir George Croke, the reporter says, " On the last day of Easter 'rerm, 34 Eliz., died Sir Christo- pher Wray, Knt., Chief Justice of Majesty's Court of Queen's liench, — a most revered Judge, of profound and judicial knowledge, accompanied with a very ready and singular capacity and admirable patience." * He left behind him a son, who, in 1612, was made a baronet by James L, and the title was inherited by his descendants till the year 1809, when the male line fail- ing, it became extinct. I congratulate my readers that we have done with the Wrays. ' See hir. Apologotical Discourse to Walsliingham, i St, Tr. 1239. In tnith, Elizabetli's only hesitation about sending off the warrant arose from a wisli and a hope that it might be rendered unnecessaiy by a private assassi- nation. * I St. Tr. 1250. * Cro. Eliz. 280. CHAPTER VI. CHIEF JUSTICES FROM THE DEA'- II OF SIR CHRISTOPHER WRAY TILL THE APPOINTMENT OF SIR EDWARD COKE BY JAMES I. Tli E carci r of our next hero is carab'.o of being n^ i;Ie .•\ai using ds well as instructive. AUhougl. at one lime in the haVnt of taking purses on tlie highway — instead o; expiating; his offenses at Tyburn, he lived to pass senio'vcc of death upon highwaymen, and to be a terror to c\ l-docs. JOHX ^OP^A^i was born in the year 15:1, at Welling- ton, in tl;e county of Somerset, a placet which is distin- guished as the cradle of the Wellesleys, and which the great ornament of his race and of his country has ren- dered forever famous by talcing from it his title of Duke, raliicr than from the scene of any of his gloiious victor- ies. Pie was of gentle blood, being a }-oung son of a family who, though simple squires and of S;ixon 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. While yet a child he v/as stolen by a band of gypsies, and remained some months in their so- ciety ; whence some pretentlcd to account for the irreg- ular habits and little resj)ect for the rules of property which afterwards marked one period of In's life. His captors had disfigured him, and liad ])urnt on his left arm a cabalistic mark which he carried with him to the grave. But his constitution, which had been sickly before, was strengthened by the wandering life he had led with these lawless associates, and he grew up to be a man of extra- ordinary stature and activity of body. We have no ac- count of his schooling before he was sent to Baliol Col- I 1551] JOHN POPHAM. 215 lege, Oxford. Here he v.'as very studious and well-be- haved, and he laid in a good stock of classical learning and of dogmatic divinity. But when he removed to the Middle Temple, that he might qualify himself for the profession of the law, he got into bad company, and ut- terly neglected his judicial studies. He preferred thea- tres, gaming-houses, and other haunts of dissipation, to " readings" and " moots ;" and once, when asked to ac- company a friend to hear an important case argued by great lawyers in Westminster Hall, he declared that " he v/as going where he would sec disputants whom he hon- ored more — to a bear-beating 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 his zvild oats." The remonstrances of his family and his friends, and the scrapes he got into, had no permanent effect in reclaim- ing him ; and although he sometimes seemed resolved on reformation, and had fits of application, he was speedily again seduced by his prolligate companions, and he en- gaj^ed in courses still more culpable. It seems to stand on undoubted testimony, that at this period of his life, besides being given to drinking and gaming, — either to sui)ply his profligate expenditure, or to show his spirit, he frequently sallied forth at night from a hostel in Southwark, with a band of desperate characters, and tluit, tjlanting themselves in ambush on Shooters' Hill, or taking other positions favorable for attack or escape, tliey stopped travelers, and took from thc^'i not only their money, but any valuable commo- di. which they carrieil with them, — boasting that they were always civil and generous, and that, to avoid serious consequences, they went in such numbers as to render resistance impassible. We must remember that this calling was not then bv anv means so discreditable as it becune afterwards ; that a statute was made during Popham's >-outh by which, on a first conviction fw rob- bery, a peer of the realm or lord of parliament was en- titled to benelit of clergy ^' t/ioiig/i kc cannot read ;''^ and that the traditions were still frv^sh, of robberies having been committed on Gad's Hill under the sanction of a I ''i;ji If [m & ' I Ed. VI. c. 12. s. 14. •I6 REIGN OF qUl£EN ELIZABETH. [1551— Prince of Wales.' The extraordinary and almost in- credible circumstance is, that Popham is supposed to have continued in these courses after he had been called to the bar, and when, bciu)^ of mature age, he was mar- ried to a respectable woman. At last, a sudden chanj^e M'as produced by her nnhappincss, and the birth of a child, for ^\'honl he felt attachment. We have the fol- lowing account of his reformation from Aubrey : — " For severall ycares he addicted himselfe b'll little to the studie of the lawes, but i)rc)nigate company, and was wont to take a purse with them. His wife considered her and his condition, and at last prevailed with him to lead another life and to stick to the studie of the lawe, Avhich, upon her importunity, lie did, beeing then about thirtie yeares cjld. lie spake to his wife to provide a very good entertainment for his camcrades to take ills leave of them, and after that day fell extremely hard to his studie, and profited exceedingly. Me was a strong, stout man, and could endure to sit at it day and night ; became eminent in his calling, had good practice, was called to be a Sergeant and a Judge."" Fuller, always anxious to soften whatever appears dis- creditable to any of his "Worthies," says of Popham, — " In his youthful days he was as stout and skillful a man at swortl and buckler as any in that age, and wihl enough in his recreations. But, oh ! \{ Quicksilver zo\\\{\ really be fixed, io what a treasure woukl it amount! Such is ivHd yov.tJt seriousl}' reduced to (gravity., as by this young man did appear. Me applied himself to more profitable fencing— the study of the lawes; therein attaining to such eminency that he became t'^e Queen's Attorney, and afterwards Lord Chief Justice of Eng- land.'" 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, ' Tf Popliam's raids had been a little later, they might have been imputed to the First I'ait of Henry IV., which must have had at least as much effect as the Hcggar's Opera in softening the horror excited by highway robbery. * Aubrey, iii. 492. * Vol. ii. 284. »579] JOHN POPHAM. ai; and was accustomed to sneer at tlie " book learning" of Francis Bacon, It mij;ht be supposed tiiat Popham would get on par- ticularly well in the Crown Court ; but, — from the dread of encountering; some of bis old associates, or for some better reason, — till he was required, in the discharge of his official duty, to conduct public prosecutions, he con- fined himself entirely to civil business; and the depart- ment of practice for which he chiefly laid himself out was " special pleading," or the drawing in writing the allegations of the plaintiff and the defendant, till they ended in a demurrer referring a cpiestion of law to the judges, or in an issue of faet 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 account of the stories circulated against him, in 1571 he actually became Sergeant Pop- ham. Mis feast was on a scale of extraordinary mag- nificence, and he furnished some very fine old Gascony wine, which the wags reported he had ititercepted one night as it was coming from Southampton, destined for the cellar of an alderman of London. Mowever, in spite of such jibes, he acquired the repu- tation of being very skillful in conducting real actions, wliicii were exclusively tried in the Court of Common Pleas, where he now practiced ; and his business steadily increased, lie 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 he- of all suits in which her interests were concerned, ex- pressed a wish that he might be taken into her service. Accordingly, when Sir Thomas Bromley, who had been long her Solicitor General, was promoted to be Lord Chancellor, Popham succeeded him as Solicitor General. Now he was somewhat ashamed of the coif, of which he was once so proud, and, meaning henceforth to praciioe in the Court of Queen's Bench, he resorted to the unusual expedient of uusergean/ing or eiisco-fitig himself; so he was once more "John Ponham, Es- quire.'" He gave high satisfaction by the manner in ' " Joh, Popham arm exoneratus dc nomine, statu et gradu Serv, ad .t'gcm." Pat, 21 Eliz. p. "2. Sergeant Copley, when h.hIj .^u icitor-Gen- I'' ;!' ii REIGN OF QUEEN ELIZABETH. [1581. which he conducted the Queen's business ; and in the beginning of tlie year 1581 he was, on her recommenda- tion, elected Speaker of tlie House of Commons. This appointment was substantially in the gift of the Gov- ernment, and was very often bestowed on the Solicitor- General for the time being, the Attorney-General at- tending 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 that they did not deal or intermeddle with any matters touching her person or estate, or church or govern- .Ml ment. The very first motion made was by Paul Wentworth, the Puritan, for a public fiist to be appointed by the House, and for a daily sermon, so that, beginning theii proceedings with the service and worship of God, He might the better bless them in all their consultation^ and actions. After a long debate, the motion was car- ried b}' 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 presuming to put the motion from the chair. On a subsequent 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 .\iajesLy's great misliking of the proceeding. He advised them to send a submission to her Majesty, and to bestow their time, and endeavor thereafter during the session, in matters proper and pertinent for this House to deal in." lie then a:-^l.ed the tjuestion, " whether the Vice-Chamberlain should carry their submission to her ivlajesty?" And it was agreed to unanimously. Mr. Vice-Chamberlain to the great comfort of the Speaker eral and Attorney-General, rcniained a Serj^cant ; and wlicn l^ccome Lord Lyndluirst and Lord Chancellor, he wore the coif, and called the Sergeants his " brothers." ' I I'arl. IIi.-,t. 811. This i lection of Sjieaker did not take place at the commeiiecment of a parliaiin ; i, but on account of tlie death of the Six'akei diirinp; the parliament — an l it whirh dees not seem to have happened be- fore, and which caused much perplc\. y. 158s] JOI POPIIAAf. ai$ and ijf ihc House, " broujjht nnswcr of her Majcsty'r acceptance of the subniission, — exprcssinj; at tlie same time some anxiety that they should not misreport the cause of her mislikinLj, which was not tiiat she objected to fasting and prajer, but for the manner — in presuminj^ to order a public fas . without her privity, which was to intrude upon her authority ecclesiastical.'" At the end of the session Air. Speaker Pophatn pre- sented to theOueen all the public bills passed, amount- ing to the unexampled number of fifteen ; and in a long spe..ch, in which he explained and praised them, he pn;yed the Queen };raciously to assent to them, thus concluding — " I ilo further most humbly beseech your 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 ibreign enemies abro;id, and the traitorous practices of most unnatural disobedient subjects both abrt)ad and .;t home, envying the blc sed and most happy and quiet government of this realm under your Highness, upon the thread of whose life onl\', next under God, dependeth the life and whole state and stay of every your good and dutiful subjects."' I'his was Popham's last parliameiUar}' 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 Gcrrard as Attorney-Cieneral, and had Sir Thomas Eger- ton (;;l"terv/arils Lord Lllesmere) lor his Solicitor. Diffi- cult tinus came on, but these law officers alv/ays rose with the occasion, and brought the important state prosecutions in which they were engaged to a fortunate issue. The new Ai^torney-Gencral was called upon to take part in a solemnity which seems very strange lo us. In that agi , when parliament rarely met, ind tliere were no newspapers in which ministers could give their ex- planations of any public occurrence, or defend them- selves from any cliarge orally circulated against them, it was usual to h;ue a grand assemblage in the Star Cham \\ ' I Pari, Hist. 813. » Ibid. 82a J30 REIGN OF QUEEN KLIZADEI tU [1585. ber, to which the nobility, the T.ord Mayor aiul aliler. nuMi of London, and other notabililJL's, were inv.tcd, and then the different members of the pjovcrnincnt (with- out any opponent) made speeches in tlu-ir own justifica- tion and in their own praise. Henry Pcrcj', I-larl of Northumberhmd, a Roman Catiiobc, much attached to the interests of Queen Mary, havinij; been kept for several y>:ar:i a close prisoner in the i'owiv, had been shot through the head by three sluj^'s, and was found dead in liis bed on the ni|^ht .ifler his guard had been chan,;j[cd by the orders of Sir Christojjlier Halton, the Vice-Chambcrlain. Notwithstanding^ a verdict by the coroner's jury of fclo-dc-sc^ a rumor was sprc.id, and very generally credited, that he had been assassinated, bi;- causc he was considered dangerous to the state, and there was no evidence upon which he could be brought to an open trial. A meeting was accordingly called in the Star Chamber, attended by all the great ofllcers of state, from the Lord Chancellor to the Vice-Chamber- lain ; and, says the report, — " The audience was very great of knights, es(iuires, and men of other c]uality. The Chancellor declared that, lest, through the sinister means of such persons as bo evil alTected to the jjrescnt estate of her Majesty's government, some bad and untrue conceits might be liad, as well of the cause t)f the I^.trl's iletainment as of the manner of his death, it was thought necessary to have the truth thereof made known in that presence. He therefore retpiired her Majesty's learned counsel to delivi-r at large the particularities l)oth of the treasons, and in what sort the Larl had mur(l''red himself. Then began John Popham, Ls(i., her ALijesty's Attorney General." Mr. Attorney, not bound to prove any of his allega- tions, and not fearing any reply, but having it all his own way, proceeds with a lengthened narrative, showing that it v/as 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, he had died by his own hand. Then spoke various Lords of the Council, — and the whole case was at last summed up by Sir Christopher 1586.] yoir.v ropHAM. 2at Hatton, the suspected p.irty, who havinjj bitterly in- vcii^hcil against the deceased Carl, declared : — •' Tiiat God by his just jud;.jinent had for his sins and ingratitude taken from him his spirit of ^race, and de- livered him over to the enemy of his soul, who brcni^^ht him to that most dreadful and horrible end whereunto ho is come ; from which (jod 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 ; an.1 that she and we. her true and lovin;^ sub- jects, may be always thankful to God for all Jiis blessings bestowed upon us by her, the only maintenance of his holy <,^ospel amon^ us."' I'opham conducted the trials of all those charj^cd as bein;f iiriplicated in Habbiiifrton's conspiracy, which were meant to prepare the public mind for the trial of the unhai)py Mary herself. I will give a little specimen of these proceetlin!.;s from Tilncy s case. The charj.;"e aj^ainst him was, that he had planned the murder of Queen Eliza- beth in her coach. The chief evidence consisted of a confession of Ahint^'ton, an avowed accomplice, in which he said that " Tilney was disjiosed to kill the Oueen ;" and that Habbington, on his own trial, said the day before, " Tilney would have had her Majesty set u[)on in her coach." Tilncy. " No ! I said not so ; only at the 1 hrec Tuns, in Newijate 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." Puphain, A, G. : " You have said enough, if we had no other evidence against you." Tilncy: "How so?" Popluxni, A. G. : " Because you have confessed high treason ; your words ])rove that you were devising on the manner of her death." Tilncy: "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 ' I St. Tr. IIII-II23. Yet these exhibitions do not seem to have had much cfTect, fijr althou^li I believe tliis cliari^e of assassination to be un- foundetl, Sir Walter Raleigh, in a letter sor)n after written to Sir Robert Cecil, assumes it as a fact known to both of them, that the ICavl of Nor- thumberland was murdered by the contrivances of Ilatlin. — AfurJin, Sit. iUi 222 REIGN OF QUEEN ELIZABETH. [1588. money is,* this proves not that he would rob his master albeit he used such wo/ds. 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." Anderson, C. J. (the presiding Judge') : " But if a servant, knowing where his master's money is, among thieves which are devising to take away the Piaster'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 accessory. And you, Tilney, being amongst traitors that were devising how to kill her Majesty, showed by what means her Majesty might be killed. This manifestly proves your assent. There- fore, let the jury consider of the evidence." Upon this summing up, a verdict of GuiLTY was im- mediately pronounced, and the prisoner was executed.' Popham was present in the court at Fotheringay dur- ing the trial of the Queen of Scots, but 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 Chamberlain Hatton, who were sitting as her judges." When poor Secretary Davison (intended to be the scape-goat for the sins of all concerned in her death) was brought before the Star Chamber, Popham enlarged on the enormity of his offense in sending off the warrant for her execution without the Queen's express orders, although she had signed it, and it had passed the Great Seal by her authority and with her approbation." 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 Richard Knightly, the repre- sentative of an ancient family in Northamptonshire, had the misfortune to be a Puritan, and had printed and published in a county town near his residence, a pam- phlet, explaining very temperately his religious notions upon the proper observance of the Sabbath, and other such subjects. This gave deep offense to the bishops ; and the author was prosecuted in the Star Chamber foi it. Popham denounced it as a most seditious and libel •St. Tr. 1127-1162. » Ibid. I161-1228. * Ibid. 1229. 1592] JOHN POPHAM. 2a,'? ous 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 pamphlet 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 ad- mitted that for mere breach of a royal proclamation an indictment could not be supported in a court of common law ; but the crown lawyers asserted, that it was part of the royal prerogative to issue proclamations on any sub- ject, for the public good, and that those proclamations might be enforced by prosecutions in the Star Chamber. Nobody in the Star Chamber ventured to controvert this doctrine ; and, on the present occasion, the only justification or palliation offered by the defendant was, that he had been overpersuaded by his wife. Pvpham, A. G. : " Methinhs he is worthy of the greater punish- ment for giving such a foolish answer as that he did it at his wife's desire." He escaped with a fine of ;^20CX).' — 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 disobedience to them could not lawfully be made the subject of a prosecution in the Star Chamber any more than in a court of com- mon law. The proclamation and the prosecution con- joined were weapons to satisfy any tyrant, however rancorous his hatred of liberty, or however eagerly cov- etous of despotic power. Upon the death of Sir Christopher Wray, there was some hesitation about the nomination of his successor. Popham wa": an able man, and had done gDod service as Attorney-General ; but there was an awkwardness, after the stories that were circulated about his early exploits, in placing him at the head of the administration of crim- inal justice. Egerton, the Solicitor-General, although of great learning and unexceptional character, could not de- cently have been put over his head ; Coke was already known to be an incarnation of the common law of Eng- land, but he could not be plr.ced in such an exalted situ- ation without having before served the crown, or given > St. Tr. 1263-1273. ■: l>'. P'^ II ! Ilpl 111: M- 224 REIGN OF QUEEN ELIZABETH. [1592. 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 of the paisnics were considered competent to preside on a trial for high treason, or to de- liver a political harangue in the Star Chamber. The choice, therefore, fell upon Popham, who, on the 8th of June, 1592, received his writ as Chief Justice of England, was knighted by the Queen at Greenwich, and was Sworn of the Privy Council along with Lord Keeper Pucker- ing. He held the office fifteen years, during the end of this and the beginning of the succeeding reign, and he 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 acquit- tal before him. After a verdict of guilty in capital cases, he uniformly let the law take its course; even in clergi- ablc felonies he was very strict about the " neck verse ;" and those who were most excusable, on account of ignor- ance, he saw without remorse led off to the gallows, al- though if they had been taught to read, they would have escaped \vitli a nominal punishment. To such a degree had " damned custom" brazed his feelings. Some, in- deed, 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. There are many of his judgments in civil cases preserved, showing that he well deserved the reputation which he enjoyed, but they are all of such a technical character that they would be uninteresting, and indeed unintelligible, to the general reader. In speaking of him farther as a Judge, I must, therefore, confine myself to his appearances in the state OI.] yOIIN POPHAM. 225 ommon 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 courage, a pru- dence, and a generosity which ought for ever to render his name respectable. Elizabeth, in her palace at White- hall, was informed that the young Earl of Essex had mad- ly fortified his hou;;c on the Strand, and had planned an insurrection in the City of London. She immediately or- dered Chief Justice Popliam to accompany Ellesmore, 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 enemie<^. 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 re- bellion in the City of London. After being kept in soli- tary coniinement till the afternoon, T'opham v/as offered his liberty on condition that the Lortl Keeper should re- main behind as a hostage ; 1)Ul tlie gallant Chief Justice indignantly refused this offer, and declared that he would siiare the fate of his friend. At l-ngth, upon news ar- riving of Essex's fiiluro in the City, they were both libaratcd, and made good their retrc.L 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. P^irst a written deposition, signed by him, was re.id, and then he was exauiircd vivdvocc. He gave his evidence with temperance and caution, affording a striking contrast to the course vituperation of Coke, tlf e Attorney-General, and the ingenious sophistry of Bacon, who seemed to thirst for the blood of his benefactor.' Popham, though so severe against common lelons, was touched by the misfortune of the high-born Essex, felt some gratitude for the tenderness he had experienced when in his power, and recommended a pardon, which ' Camd. ^IXu, vol. ii. 225. 321 ; I St. Tr. 1333-1360. I— 15. 226 REIGN OF QUEEN ELIZABETH. [1602 would have been extended to him if the fatal ring had duly reached the hands of Elizabeth. When Sir Christopher Blunt and several other com- moners were tried for being concerned in this rebellion, Chief Justice Popham presided as Judge, and, at the same time, gave evidence as a witness, mixing the two characters in a manner that seems to us rather incon- gruous. He began with laying down the law : — Lord C. y. — " Whenever the subject rebelleth 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 land maketh this construction of his actions, that he intended to deprive 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 different in the manner, is the act of all of them who conspire, by reason of the general nviHcc of the intent." Afterwards he entered into a dialogue with the wit- nesses and with the prisoners respecting the occurrences he had witnessed at Essex House. For example : L. C. y. — " Sir Christopher, I :;hould like to know why you stood at the great chamljer door, with muskets charged and matches in your hands, which I well dis- cerned through the key-hole ?" He repeatedly put similar questions, and gave his own version of the differ- ent 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 ad- dressed the prisoners : — " I am sorry to see any so ill affected to the state as to become plotters and practicers 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 years' peace under so gracious and renowned a prince, we Eng- lishmen 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 against the law of God and of all nations. Although your example be I603.J yoinv POPHAM. 337 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 repentance, which being truly and heartily performed, 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 ac- cordingly.' On the death of Queen Elizabeth, Popham joined in acknowledging the title of the King of Scots as lawful heir to the throne, and he was reappointed to his office of Chief Justice of the King's Bench when the new sov- ereign arrived in London. We are told that he still maintained 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, Pop- ham's justice was exemplary on thieves and robbers. The land then swarmed with people which had been soldiers, who had never gotten (or quite forgotten) any other vocation. Hard it w.is for peace to feed all the idle mouths which a former war did breed ; being too proud to beg, too lazy to labor, those infested the high- ways with their felonies ; some presuming on their mul- titudes, as the robbers on the northern roid, whose knot (otherwise not to be untied) Sir John cu". asunder with the sword of Justice.'" He presided at the trial of Sir Walter Raleigh for being concerned in the plot to place the Lady Arabella Stuart on the throne ; but the greatest part of the dis- grace which then fell on the administration of justice was truly imputed to Sir Edward Coke, the Attorney- General, who will continue to be quoted to all genera- tions for the brutality of character he exhibited in vituperating his gallant victim. The Chief Justice at first tried to restore good humor between the prisoner and the public prosecutor, by making an apology for the eagerness of both : — ' I St. Tr. 1400-1452. 'Aubrey, vol. iii. p. 49a \\ i;» \-\ 928 REIGN OF TAMES I. [1603. Illlf J Popham, C. %~" Sir Walter Raleigh, Mr. Attorney speaketh out of the zeal of his duty for the service of the King, and you for your life ; be valiant on both sides." Afterwards, when Coke behaved as if he had con- sidered this an exhortation to insult the man whom the law still presumed to be innocent, Popham joined with the other judges in trying to repress him, till " Mr. Attorney sat down in a chafe, and would speak no more." Thereupon they were all afraid that the King would be displeased, and " they urged and entreated him to go on." The rulings of Chief Justice Popham at this trial would seem very strange in our day, but in his they caused no surprise nor censure. In the first place, he decided — against an able argument from the prisoner, who conducted his own defense — that, i;lthough the charge was high treason, it was sufficiently supported by the uncorroborated evidence of a single witness; and, secondly, that there '.v'as no occasion for this witness to be produced in court, or sworn, and that a written con- fession by him, accusing himself and implicating the prisoner, was enough to satisfy all the requisitions of common and statute law on the subject. Raleigh still urged that Lord Cobham, his sole accuser, should be confronted with him : — PopJiaui, C. y.--" This thing cannot be granted, for then a number of treasons should flourish ; the accuser may be drawn in practice whilst he is in person." Ra- leigh. — "The common trial in England is by jury and witnesses." Pop/iain, C. J. — " If three conspire a treason, and they all confess it, here is never a witness, and yet they are condemned." Raleigh. — " I know not how you conceive the law." Popha/n, C. J. — " Nay, we do not conceive the law, but we know the law." Raleigh, — " The wisdom of the law of ^< jd is absolute and perfect. Hoc fac et vives, &c. Indeed, where the witness is not to be had conveniently, I agree with you : but here he may; he is alive, and under this roof. Susannah had been condemn<;d if Daniel had not cried out, ' Will you condemn an innocent Israelite without examination or knowledge of titc truth? Remember it is absolutely 'm i [1603. i6o3.] JOHN roriiAM. 339 be the commandment of God : ' If a false witness rise up, you shall cause him to be brought before the judges ; if he be found false, he shall have the punishment the accused should have had.' It is very easy for my Lord to accuse me, and it may be a means to excuse himself." Pophain, C. J. — " There must not such gap be opened for the destruction of the King as there would be if we should grant this. You plead hard for yourself, but the laws plead as hard for the King." Raleigh.' — " The King desires nothing but the knowledge of the truth, and would have no advantage taken by severity of the law. If ever we had a gracious King, now we have; I hope, as he is, so are his ministers. If there be a trial in an action for a matter but of five marks value, a wit- ness must be produced and sworn. Good my Lord, let my accuser come face to face, and see if he will call God to witness for the truth of what he has alleged against me." Pop/iani, C. J. — " You have no law for it." In examining the mode in which criminal trials were then conducted, it is likewise curious to observe that the practice of interrogating the accused, which our neighbors the French still follow and praise, prevailed in England. Many questions were put to Sir Walter Raleigh on this occasion, in the hope of entrapping him. On account of his great acuteness. they v/ere rather of service to him ; but they show how unequally this mode of striving to get at truth must operate, and how easily it may be abused. The verdict of GuiLTV being re- corded. Lord Chief Justice Topham said, — " I thought I should never have seen this day. Sir Walter, to have stood in this place to give sentence of death against you ; because I thought it impossible that one 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 liigh, 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 medi- ocria Jirina locaiitiir.^ You have been taken for a wise man, and so have shown wit enough this day. Two ' Posy^ or motto, of Lord Keeper Bacon. ^ppp «30 REIGN OF JAMES /. [1606. 1' I y[\ lifii 'fi I 'b' \ vices have lodged chiefly in you ; one is an eager ann- bition, the other corrupt covctousncss. Your conceit of not confessinj^ anything is very inhuman and wicked. My L')rd of Es.;cx, that noble earl that is gone, vdio, if he had not been carried away by others, had lived in lionor to this day among us, confessed his offenses, and obtained mercy of the Lord ; for I am verily pevsuadLd in my heart he died a worthy servant of God. This world is the time of confessing, that we maybe absolved at the day of judp;ment. You have no just matter of 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 his own life. It is danger- ous that any traitors should have access to or conference with one another ; when they sec 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 bcin'i- thus, let it not grieve you if I speak a little out of zeal and love to your good. You have been taxed by the world with the defense 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 maintainers of them be suffered to live in any Christian commonwealth. You shall do well before vou go out of the world to fjive satisfaction therein, and not to die with these imputa- tions 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 pronounced. But, not- withstanding Raleigh's unpopularity from the part he had taken ag'ainst the Earl of Essex, the hard treat- ment he had experienced on his trial excited such gen- eral sympathy in his favor, 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 execution.' Guy Fawkes, and his associates implicated in the Gun- powder Plot, were tried before Poplnm, but there was such clear evidence against them, that no question of law arose during the trial, and we are merely told > 2 St. Tr. 1-/12. I; f6o6.] JOHN POPHAM. «3» that "the Lcrd Chief Justice of England, — after a grave and prudent rehition and defense of the laws made by Queen Elizabeth against recusants, priests, and receivers of priests, together with the several t)Ccasions, progresses, and reasons of the same, and having plainly demon- strated and proved that they were all necessary, viild^ equal, and moderate, and to be justified to all the v/orld, — pronounced judgment.'" Popham's last appearance in a case of public interest was upon the trial of Garnet, the Superior of the Jesu- its. Against him the evidence was very slender, and the Chief Justice was obliged to eke it out by unwary answers to dextrously-framed interrogatories. He suc- ceeded 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 guilty of misprision of treason, by not giving informa- tion of what he had so learned : but Garnet still firmly denied ever having taken any part in the devising of tlie plot, or having in any manner encouraged it. At last, he said very passionately — " My Lord, I would to God I had never known of the Powder Treason; but, as He is my judge, I would have stopped it if I could." Popliaiii, C. J.: Garnet, you are Superior of the Jesuits ; ami if you forbid, must not the rest obey ? Was not Greenwell with you half an hour at Sir Everard Digby's house when you heard of the discovery of your treason ? And did you not there con- fer and debate the matter together ? Did vou not stir him UD to go to the rebels and encourage tlicm ? Yet you seek to color 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 com- manded the actors; nay, I think verily you were the chief that moved it." Gaj-net : " No, 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 Catesby, princip>d actors in this matchless treason, and how he kept the two bulls to prejudice the King, and to do other mischief in the > 2 St. Tr. rQ4. a$2 REIGN OF JAMES I. [1606. % i u realm ; aiul how he afterwards burnt Lhcm when he saw the King accably come in, there being no hope to do any good li that time." Tliis was only an interlocutory dialot/nc during the trial, and no proof had boon given of the facts to which the Judge, who was supposed to be counsel for the pris- oner, had rcTcrrcil. His summing up to the jury is not reported ; and we are only told that, the verdict of GUII.TY being found, "Then the Lord Chief Justice, making a pithy preamble of all the apparent proofs and prcsumj)tions of his guiltiness, gave judgment that he should be drawn, hanged, and quartered."' There was a strong temptation to all who desired Court favor to show extraordinary zc 1 on this occasion, for the fate of Garnet had excited tleep interest all over Europe, — and the King himself, a large number of the nobility, and many members of the House of Commons were present at tl)e trial. Popham, who had heretofore retained wonderful \'igor, both of body and mind, was soon after struck by a mor- tal disease, and, on the 1st of June, 1607, he expired, in the S(.\-enty-second year of his age. According to the directions left in his will, he was buried at Wellington, the place of his nativity. I beiieve that no charge could justly be made against hi'- ;-urity 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 headquarters 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 perpetrated there in the days of the Tudors."" The earliest narrative that I find ' 2 St. Tr. 217-358. ' History of Knj^land, ii. 542. In the notes to the 5lh canto of RoKEiiY, there is an inteix-sting . t;(nint of the appearance which tlie place now pre- sents, and which is prolably exactly the same which it presented when it was occupied l)y Lord Cliief Justice I'opham : — "Littlecote House slaiids in a low and lonely .situation. It is an irregular building of great antiquity, [i6o6. [606.] JOHN rO/'IfAAf. 233 of this atrocity, and of Lord Chief Justice Popliam's connt'i "ion with it, is by Aubrey: " Sir Richard Dayrcll, of Littlccott, in com. Wilts, havinjj '^ot his lady's waitinj::^ woman with child, when her tra'cll came sent a servant with a horsu for a mid- wife, whom he was to brin^ hoodwinked. She was brought, and layd the woman ; but as soon as the child was borne, she saw the knic;ht tahe the child and mur- ther it, and burn it in the firo in the chamber. Slie havinti done her business ^'-n- xtraordinarily rewarded for her paines, and wont action did run much in I to discover it, but knew \. ercd with herself the time ; ■d away. I'his horrid id she had a desire Lwas. She consid- din^% and how many miles she mi;.dit have rode at thai rate in that time, and that it must be some ;_;reat person' ; hous'/, for the roomc was twelve foot high ; and she should know the chamber if she sawe it. She went to a justice of peace, and search was made. The very chamber found. The kniL;ht was brought to his tryall ; and, to be short, this Judge had this nol)le house, parke, and manor, and (I thinke) more, for a bribe to save his life. Sir John Popham gave sentence according to lawe, but hi.ing a great per- son and a fivorite, he procured a noli prosequi.'' ' and was pnjbalily erected ahnut tli'; time of the termination of feudal war- fare, when (lefen^i- e;ime nu ioiv^cr to Ik; an nhject in a country mansion. Many circumstances, liowever, in the interior of the house, seem aijproiniate to feudal times. Tiie liall is very spacious, lloored with sidiics, and li^diled by lart;e transom winiU)ws. Its walls are huni^ wiili old military accoutre- ments that have loii^ been left a prey to rust. At one end of the hall is a ran^e of coats of mail and helmets, and there is on every side abundance of old-fashioned pistols and ^uns, many of them with matchlocks. Imme- diately below the cornice hani^s a row of leathern jerkitis, made in the form of a slrrt, supposed to have been worn as armor by the vassals. A larf^c oak table, reachini; nearly from one end of the room to the other, mi^i^ht have feasted the wlu)le neii^hborliood, and an appentla^e to one i.nd ol it made it answer at other times for the j;ood old j^ame of shuflle-board. The rest of the furniture is iu a suitable alylc. /iiir/iiUArr/y tin cin/i-r/mir 0/ tum- lnvus uvrkinaitshi/', coiistnicti'd of wood, ivith a hv^li back and triani^tiLir seat, said to have been used / 6^ ,: 3~«M.B«.J«.™«»t^^,,„,,^j^, 234 REIGN OF JAMES /. [1606. ' ; !,■ ' \ ' i 1 t ; < ! i 1 i r '■i ■ ' - ;:^; Popham's portrait represented him as " a hu«^e, heavy, ugly man ; and I am afraid he would not appear to great advantage in a sketch of his moral qualities, which, lest I should do him injustice, I shall not attempt. In fair- ness, however, I ought to mention that he was much commended in his own time for the number of thieves and robbers he convicted and executed ; and it was ob- served that, " if he was the death of a few scores of upon, and it would be unfair to load the memory of a judge with the ob- loquy of so great a crime upon such unsatisfactory testimony. Walter Scott publishes the following version of the story, " exactly as told in tlie coun- try : — " It v.-.s on a dark night in the month of November, that an old mid- wife sat musing by her cottage fireside, when on a sudden she was startled by a loud knocking at the door. On opening it she found a liorseman, wlio told her that her assistance was required immediately by a person of rank, and that she should be handsomely rewarded, but that there were reasons for keeping tlie affair a strict secret, and therefore she must submit to be blindfolded, and to be conducted in tliat condilion to the bedchamber of the lady. Willi some hesitation the midwife consented ; the horseman bound her eyes, and placed her on a pillion behind him. After proceeding in silence for many miles, through rough and dirty lanes, they stopped, and the midwife was led into a house, which, from the length of her walk through the apartments, as well as the sounds about her, she discovered to be the seat of wealth and power. When the bandage was removed from her eyes, she found herself in a bedchamber, in which were the lady on whose account she had been sent for, and a man of a haughty and ferocious aspect. The lady was delivered of a fine boy. Immediately, the man com- manded 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 tlie 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 jiower 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 tlien paid her handsomely and departed. The midwife was strongly agitated by the horrors of the jireceding night, and she immediately made a deposition of the fact before a magistrate. Two circumstances afforded hopes of detecting the house in which the crime had been committed : 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 siteps. Some suspicion fell upon one Dar- rell, at that lime the proprietor of I-ittlecote House and the domain around it. The house was examined and identified by the midwife, and Darrell was tried at Salisbury for the murder. j9y corrupting the judge he escaped the sentence of the law, but broke his neck by a fall from his horse, in hunt- ing, in a few months after. The place whese this happened is still known by the name of ' Barrel's stile,' and is dreaded by the peasant whom the shades of evening have overtaken on his way." Walter Scott founds a l)eautiful ballad Ci' this legend, but — instead of a L,!-.i.|. i!i.! [1606. 1606.] JOHN POPHAM. •35 such gentry, he preserved the lives and livelihoods of more thousands of travelers, who owed their safety to this Judge's severity." ' Popham is to be reckoned among the English Judges who were authors, having compiled a volume of Reports of his decisions while he was Chief Justice of the King's Bench, beginning in the 34th & 35th of Elizabeth. Be- ing originally in French, an English translation of them was published in the year 1682, but they are wretchedly ill done, and they are not considered of authority. We should have been much better pleased if he had given us an account of his exploits when he was chief of a band of freebooters. He left behind him the greatest estate that ever had been amassed by any lawyer — some said as much ;^I0,000 a year ; but as it was not supposed to be all honestly come by, and he was reported even to have begun to save money when " the road did him justice," there was a prophesy that it would not prosper, and that " what was got over the Devil's back would be spent under his belly." Accordingly, we have the following account of his son John : — " He was the greatest house-keeper in England ; would have at Littlecote four or five or more lords at a time. His wife, who had been worth to him ;^6,ooo, was as vain 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 the woemen of the countrcy thither, and feaste midwife, 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 dono, the friar is gone Blindfolded ;>< he came: Next morning all in Littlecote Hall Were weeping for their dame. *' Wild Darrell is an allered 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 11 beard him in his pride — If he meets a friar of orders gray, He droops and turns aside." • Aabrey iii. 498. : :P 1! 236 REIGN OF JAMES I. [1594. them, and make them drunke, as she would be herselfe. They both dyed by excesse and by luxury ; and by cosenage of their servants, when he dyed, there was a hundred thousand pounds in debt. This was his epi- taph : — " Here lies he who not long since Kept a table like a prince, Till death came and tooke him awaye, Then ask't the old man Whats to pay ?"^ The family retained a remnant of the Chief Justice's possessions at Littlecote for two or three generations, and then became extinct. i> \ V ] The next Chief Justice of England affords a striking proof that though dullness be often considered an apti- tude for high office, the elevation which it procures will not confer lasting fame. The greatest part of my read- ers never before read or heard of the name of Thomas Fleming ; yet, starting in the profession of the law with Francis IBacon, he was not only preferred to him by attorneys, but by prime ministers, and he had the high- est professional honors showered upon him while the im- mortal philosopher, orator, and fine writer continued to languish at the bar without any advancement, notwith- standing all his merits and all his intrigues. But Flem- ing had superior good fortune, and enjoyed temporary consequence, because he was a mere Imvyer, — because he harbored no ideas or '^'=nirations beyond the routine of Westminster Hall — b ,se he did not mortify the van- ity of the witty, or a.. 1 .. the jealousy of the ambitious. He was the younger son of a gentleman of smr.U 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 -i:, although we catch so eagerly at any trait of the boyhood of his rival, whom he despised.' Soon after he was called to the bar, by unwearied drudgery he got into considerable practice ; and it was remarked that he always tried how much labor he could bestow upon ' Aubrey, iii. 494. ' He probably had not an academical education, as on the 7th of August, 16 1 3, it was ordered by the Convocation of the University of Oxford " that Sir Thomas Flemming, Lord Chief Justice of England, be created M. of A." — 2 IVood'n Ath. Ojt, 355. »594.] THOMAS FLEMING. «37 every case Intrusted to him, while his more lively com- petitors tried with how little labor they could creditably perform their duty." In the end of the year 1594 he was called to the de- gree of sergeant, along with eight others, and was thought to be the most deeply versed in the law of real actions of the whole batch. It happened that, soon after, there was a vacancy in the office of the Solicitor-General, on the promotion of Sir Edward Coke to be Attorney-Gen- eral. Bacon moved heaven and earth that he himself might succeed to it. Rewrote to his uncle, Lord Treas- urer 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 my- self 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 accompanied this letter with a valuable jewel, to show off her beauty. He did what he thought would be still more serviceable, and, indeed, conclusive ; he prevailed upon the young Earl of Essex, then in the highest favor with the aged Queen, earnestly to press his suit. But the appointment was left with the Lord Treasurer, and he decided immediately against his nephew, who was re- ported to be no lawyer, from giving up his time to pro- fane learning — who had lately made an indiscreet though eloquent speech in the House of Commons — and who, if promoted, might be a dangerous rival to his cousin, Rob- ert Cecil, then entering public life, and destined by his su-e to be prime minister. The cunning old fox then in- quired who would be a competent person to do the Queen's business in her courts, and would give no un- easiness elsewhere ; and he was told that by several black-letter Judges whom he consulted, that " Sergeant Fleming was the man for him." After the office had been kept vacant by these intrigues above a year, Sergeant ' He appears, however, to have been long unknown beyond the precincts of Westminster Ilall, In Fleetwood's Diary, cited in Wright's Queen Eliza- beth, ii. 418, there is the following entry under date loth August, 1592 :— " This day Mr. Recorder surrendered his office ; the lot is now to be cast be» tween Mr. Sergeant Druce and one Mr. FUmmynge of Lincoln t Inn" I a' I. I; ■IW • ; 5 238 REIGN OF JAMES I. [1602. Fleming was actually appointed. Bacon's anguish was exasperated by comparing himself with the new Soli- citor; and, in writing to Essex, after enumerating his own pretensions, he says, '* when I add hereunto the ob- scureness and many exceptions to my competitor, I can- not 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 Cam- bridge. 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, immedately upon his promotion, gave up his sergeantship, and practiced in the Court of Queen's Bench.' He was found very useful in doing the official business, and gave entire satisfaction to his employers. At the calling of a new parliament, in the autumn of 1601, he was returned to the House of Commons for a Cornish borough ; and, according to the usual practice at that time, he ought, as Solicitor-General, to have been elected Speaker ; but his manner was too " lawyer-like and ungenteel" for the chair, and Sergeant Croke, who was more presentable, was substituted for him. He opened his mouth in the House only once, and then he broke down. This was in the great debate on the grievance of monopolies. He undertook to defend the system of granting to individuals the exclusive right of dealing in particular commodities ; but, when he had described the manner in which patents passed through the different offices before the Great Seal is put to them, he lost his recollection, and resumed his seat. Bacon, now member for Middlesex, to show what a valuable Solicitor-General the Government had lost, made a very gallant speech, in which he maintained that " the Queen, as she is our sovereign, hath both an enlarg- ing and restraining power ; for, by her prerogative, she may, ist, set at liberty things restrained by statute law or otherwise ; and, 2ndly, by her prerogative she may restrain things which be at liberty." He concluded ' Tho. Fleming a statu et gradu servientis ad legem exoneratus. T. R. apud Westm, 5 Nov. Pat. 37 Eliz. p. 9. — Dug. Chron. Ser. gg. i6o4.] THOMAS FLEMING. »39 by expressing the utmost horror of introducing any bill to meddle with the powers of the crown upon the sub- ject, 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 asthearbitress 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 sDon 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 ten- ure of all of them was practically secure. An attempt was made to induce Moming to accept the appointment of Queen's Sergeant, which would have given him prece- dence over the Attorney-General ; but this failed, for he would thereby have been considered as put upon the shelf, instead of being on the highway to promotion. Elizabeth died, leaving Bacon with no higher rank than that of Queen's Counsel ; and, on the accession of James I., Fleming was reappointed Solicitor-General. The event justified his firmness in resisting the at- tempt to shelve him, for in the following year, on the death of Sir William Poryam, he was appointed Chief Baron of the Exchequer. While he held this office, he sat along with Lord Chief Justice Popham on the trial of Guy Fawkes and the Gunpowder conspirators ; but he followj'J the useful advice for subordinate judges on such an occasion — " to look wise, and say nothing." His most memorable judgment as Chief Baron was in what is called " The Great Case of Impositions." This was, in truth, fully as important as Hampden's Case of Ship-money, but did not acquire such celebrity in his- tory, because it was long acquiesced in, to the destruc- tion 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 Ts. 6d., making lo^. per cwt. Bates, a Levant merchant, who had imported a cargo of currants from •M llll'i'M, 240 REIGN OF JAMES /. ri6o4. I -' : ; Venice, very readily paid the parliamentary duty of 2s. Cid. upon it, but refused to pay more ; thereupon the Attorney-General filed an information in the Court of Exchequer, to compel him to pay the additional duty of ys. Gci.; so the question arose, whether he was by law compellable to do so ? After arguments at the bar which lasted many clays, — Fleming, C. B., said ; " The defendant's plea in this case is without precedent or example, for he alleges that the imposition which the King has laid is ' indebit6, in- just6 et contra leges Angliie imposita, and, therefore, he refused to pay it.' The King, as is commonly said in our books, cannot do wrong ; and if the King seize any land without cause, I ought to sue to him in humble manner {Jiuniillime supplieavit, &c.), and not in terms of opposition. The matter of the plea first regards the prerogative, and to derogate from that is a part most undutiful in any subject. Next it concerns the trans- port of commodities into and out of the realm, the due regulation of which is left to the King for the public good. The imposition is properly upon currants and not upon the defendant, for upon him no imposition shall be but by parliament. The things are currants, a foreign commodity. The King may restrain the person of a subject in leaving or coming into the realm, and a fortiori, may impose conditit)ns on the importation or exportation of his goods. To the King is committed the government of the realm, and Bracton says, ' that for his discharge of his office God hath given him the power to govern.' This power is double — ordinary and absolute. The ordinary is for the profit of particular subjects — the determination of civil justice; this is nominated by civilians jus privatum, and it cannot be changed without parliament. The absolute power of the King is applied for the general benefit of the people ; it is most properly named policy, and it varieth with the time, according to the wisdom of the King, for the com- mon good. If this imposition is matter of state, it is to be ruled by the rules of policy, and the King hath done well, instead of 'unduly, unjustly, and contrary to the laws of England.' All commerce and dealings with foreigners, like war and peace and public treaties, are Rf Tv' I i i6o4.] JAMES FLEMING. UJ regulated and determined by the absolute power of the King. No importation or exportation can be but at the King's ports. They are his gates, which he may open or close when and on what conditions he pleases. He guards them with bulwarks and fortresses, and he pro- tects ships coming hither from pirates at sea; and if hi? subjects arc wronged by foreign princes, he sees that they are righted. Ought he not, then, by the custom? he inj[)oses, to enable himself to perform these duties? The impost to the merchant is nothing, for those who wish for his commodities must buy them subject to the charge ; and, in most cases, it shall be paid by the foreign grower and not by the English consumer. As to the argument that the currants are victual^ they are rather a delicacy, and are no more necessary than wine, on which the King lays such customs as 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 intend- ment 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 ob- jected 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 overall the author! ties and acts of parliament, contending that they all prove the King's power to ' .:-v what taxes he pleases on goods imported, and he coiic vided 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 proclama- tion, being sufficient to fill the exchequer, — and the ex- • 2 St. Tr. 371-394- I— 16. ■ 'I S4a REIGN OF JAMES I. [1607— If .■ 1 1 ' 1 \ % J t 5 ,m, perimcnt of ship-money would never have been neces- sary. The Chief Baron most certainly misquotes, mis- represents, and mystifies exceedingly; but, however fal- lacious his reasoning, the judy;mcnt ought not to be passed over in silence by those who pretend to narrate our annals, for it was pronounced by a court of compe- tent jurisdiction, and it was acted upon for years as set- tling the law and constitution of the country. King James declared that Chief Baron Fleming was a jutlge to his heart's content. He had been somewhat afraid when he camt to England that he might hear such unpalatable doctrines as had excited his indignation in Buchanan's treatise " Do jure regni apud Scotis," and he expressed great joy in the solemn recognition that he was an absolute sovereign. Our indignation should be diverted from him a; I his unfortunate son, to the base sycophants, legal and ecclesiastical, who misled them. On the death of 1\ pn.uii, no one was thought so fit to succeed him as Fleniip.;;, of whom it was always said that ^^ though slow, he zviXi sure T and he became Chief Justice of England the very .s;ime day on which Francis Bacon mounted the first step of the political ladder, re- ceiving the comparatively humble appointment of So- licitor-General.* Lord Chief Justice Fleming remained at the head of the common law rather more than six years. During that time, the only case of general interest which arose in Westminster Hall, was that of the PosTNATI. As might be expected, to please the King, he joined cor- dially in what I consider the illegal decision, that per- sons born in Scotland after the accession of James to the throne of England were entitled to all the privileges of natural-born subjects in England, although it was allowed that Scotland was an entirely separate and inde- pendent kingdom. Luckily, the question is never likely again to arise since the severance of the crown of Haiover from that of Great Britain ; but if it should, I do not think that Calvin's case could by any means be considered a conclusive authority, being founded upon such reasoning as that " if our King conquer a Christian country, its laws remain till duly altered ; whereas if he ' I Dug. Chron. Ser. I02. I6I3.J JAMES FLEMING, «43 conquer an infid':! country, the laws are />^<7/tff/<7 extinct, and he may massacre all the inabitants. " Lord Chief Justice Fleming' took the lead in the pros- ecution of the Countess of Shrewsbury, before the Privy Council, on the charj^e of having refused to be examined respecting the part she had acted in bringing about a clandestine marriage in the Tower of London, between the Lady Arabella Stuart, the King's cousin, and Sir William Somerset, afterwards Duke of Somer- set. He laid it down for law, that ** it was a high mis- demeanor to marry, or to connive at the marriage of, any relation of the King without his consent, and that the Countess's refusal to be examined was a contempt of the King, his crown, and dignity, which, if it were to go unpunished, might lead to many dangerous enterprises against the state." He therefore gave it as his opinion, that she should be fined ;^ 10,000, and confined during the King's pleasure.' While this poor creature presided in the King's Bench, he was no doubt told by his officers and dependents 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 in- tellect and deeper learning, added respect for constitu- tional liberty and resolution at every hazard to maintain judicial independence. From the growing resistance in the nation to the absolute maxims of government pro- fessed by the King and sanctioned by almost all his Judges, there was a general desire that the only one who stood up for law against prerogative should be placed in a vjosition which might give greater weight to his efforts on the popular side ; but of this there seemed no prospect, for the subservient Fleming was still a young man, and likely to continue many years the tool of the Government. In the midst of these gloomy anticipations, on the 15th day of October, 161 3, the joyful news was spread of his sudden death. I do not know, and I have taken • a St. Tr. 559-768 * 2 St. Tr. 765-778. II' ('J «44 REIGN OF JAMES I. [i6tS. no pains to ascertain, where he was buried, or whether he left any descendants. In private life he is said to have been virtuous and amiable, and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy sergeant at the bar of the Common Pleas, the position for which nature had intended him.' He dwindled the more rapidly to insignificance from the splendor of his immediate successor. ' I have since learned (but it is not worth while to alter the text) that ho wni buried at Stoneham in Hampshire ; that his will, dated 3ist July, 1610, wai proved 30th October, 1613 ; that hiH eldest ^on intermarried with a daugliter of Sir Henry Cromwell, ond that their descendants remained seated at Stoneham for some generations. The Chief Justice apnears to have had a residence in the Isle of VVicht. The name of "Sir Thomaa Fleming, L. C. J. of England," appears in the list of the members of a Bowling Green Club established in the island, who dined together twice t week. (Worsley's Isle of Wight, p. 223.) 3 \ I i t : r. w whether said to it of his lUtcd to [ him to yOmmon cd him.' rom the xt) tliat ho July, 1610, ied with a I remained appears to ir rhomoii nbers of a >er twice a ?i' * ] \ i \ LORD CORK. ' f^ftv* '"'""^ y ^ IMAii V I : ill-: W's:. M ^.i;!:: (.•:;•!■;:• ]■ .^T)• ; "t •;!.]; (.:<>._ .,'1' .-,, -r)'.:Mo\ I i.'CA- \v . --a!-,.. ,;,' II'.:' , •" i pi, ; ...,, ■ \: 1,., '.('.^r 'n.i. .oi^-vc:: ? .,- v.. ", "nX' , T i - • .■■ - 1 '■ • . . '•■] rcasf.pHi;:;-. cii-'n^; . :] '»;• ii; . u ; • r :'Uitcu"ip' 'oi' ■■';'-th.-i an(.l k>i' styL; ri I'i:,- !..)'".' jjoki' ,f,.;i ..mm' . \-;v' :;;.tlM> in;^ ^vith 'lie ii.<]i\ i'J'iulj wlvi^ii h'.' i .■'Itc'iJ. •,<•■ ;.>\' .if.{ !:■,? f"":;., 't. '. .,!■: t.ii-i; - Li " 'l * ' 4 iu. <'- '•f : [' 1. ! t r '" (■ Ev.:. "' v-u\ ia m. ■•■\** W'hC: ,n P-' -I'Uav '■.M iy ■^..U/Uni' ■'u I to ;. ; ' ( . ;■; .■■'■ ". :•< x nil ' . 'V ,. h' . r of :\ •■ • •:•-■;. t- the ' ' > :i>h;.v.:ai •, ■%{■•. .\ '_■: !■.!!,.'' < .■ , ' ;il • ■:, ' );■■■ h. •-!•'::'■ 'j' ■ , ' , .ijlc-^ / ; lii:.' ' '••' ' ' •- ■ ;i , , 1 ).'■;. i 'ff iffl|;ii If mm I 1 -SE: i w. |H j, f ff' 1 ■ M:f i? w^'i Ik' '< \im- ] !i. il ,«' ■? V 1^ /',; 1^^ >!:,-. J *":* .¥:> ■' *! * f&. I-: ■ . W w >• ^^' / "Hfe. -t iP'if- te- •■ ■^^-i^i. <^ ). ^^.,.. -s**- .-..I- ,K;. •| I CHAPTER VII. LIFE OF SIR EDWARD COKE, FROM HIS BIRTH TILL HE WAS MADE CHIEF JUSTICE OF THE COURT OF COMMON PLEAS. WE now come to him who was pronounced by his contemporaries, and is still considered, the t^reatest oracle of our municipal jurisprudence, --who afforded a bright example of judicial independ- ence, — and to whom we are indebted for one of the main pillars of our free constitution. Unfortunately, his mind was never opened to the contemplations of philosophy ; he had no genuine taste for elegant litera- ture ; and his disposition 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 compositions, and sympathizing with the individuals whom he insulted, we are apt to forget that " without Sir Edward Coke the law by this time had been like a ship without ballast ;'" that when all the other Judges basely succumbed to the mandate of a Sovereign who wished to introduce despotism under the forms of juridical procedure, he did his duty at the sacri- fice of his office ; and that, in spite of the blandishments, the craft, and the violence of the Court of Charles I., he framed and he carried the PETITION OF RIGHT, which contained an ample recognition of the liberties of Englishmen — which bore living witness against the law- less tyranny of the approaching government without parliaments — which was appealed to with such success when parliaments were resumed, and which, at the Rev- ' Words of Lord Bacon. :l^ i'i I . ! ^ii 246 REIGN OF QUEEN ELIZABETH, [1551-2. olution in 1688, was made the basis of the happy settle- ment then permanently established. It shall be my object in this memoir fairly to delineate his career and to estimate his character. Sir Edward Coke, like most of my Chief Justices, was of a good family and respectable connections. The early Chancellors, being taken from the Church, were not unfrequently of low origin ; but to start in the pro- fession of the law required a long and expensive educa- tion, which only the higher gentry could afford for their sons. The Cokes had been settled for many generations in the county of Norfolk. As the name does not corre- spond 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 ClliEF ; 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 wlien surnames were first adopted in England. Even in the reigns of Elizabeth and James I., Sir Edward's name was fre- quently spelled Cook. Lady Hatton, his second wife, who would not assume it, adopted this spelling in writ- ing to him, and according to this spelling it has in- variably 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 Gascoigne. From him, in the right male line, was descended Robert Coke, the father of Sir Edward. This representative of the family, although possessed of good patrimonial prop- erty, was bred to the law in Lincohi's Inn, and practiced 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, 155 1-2, was born Ed- ' It is amusing to observe the efforts made to disguise the names of trades in proper names, by changing i inlo>', by adding a final e, and by doubling consonants. 1567] EDWARD COKE. •47 Ed- ward, their only son. He came into the world unex- pectedly, at thj parlor fire-side, before his mother could be carried up to her bed ; and, from the extraordinary energy which he then displayed, high expectations were entertained of his future greatness.' This infantine ex- ploit 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 misfortune to lose his father, who died in Lincoln's Inn, and was buried in the church of St. Andrew, Holborn." His mother married again ; but his education was most suc- cessfully continued by Mr. Walter Hawe, the head master of his school, under whom he continued seven years, and made considerable proficiency in classical learning. He was more remarkable, however, for mem- ory than imagination, and he had as much delight in cramming the rules of prosody in doggerel verse as in perusing the finest passages of Virgil. He had reached his sixteenth year before he went to the University — a late age, according to the custom of that time ; but he afterwards considered it a great ad- vantage that he never '■^ prepropcronsly " entered on study or business. On the 25th of October, 1567, he was admitted a pensioner of Trinity College, Cambridge. We learn nothing from himself or others of the course of study which he pursued. Whitgift, afterwards Arch- bishop of Canterbury, is said to have been his tutor, and he was no doubt well drilled in the dialectics of Aris- totle ; but he never displays the slightest tincture of science, and, unlike Bacon, who came to the same col- ' " Proeditabat miri quidpiam ejus Genitura ; Matrem ita subito juxta focum intcicipiens et in tlialamum cui suberat non moveretur. Locum ipsum ipse mihimet demonstravit." — Spelin. Icenia sive Norfolciiirc/iasc cannot be divested by the birth of a child after his interest has vested in possession ; but that the estate of one who takes by descent, may. The point therefore, was, " whether Richard, under the uses of the recovery, took by purchase or by descent ?" The case excited so much interest at the time, that by the special order of Queen Elizabeth, it was adjourned from the Court of Queen's Bench, where it arose, into the Excheq- uer Chamber, before the Lord Chancellor and the twelve Judges. Coke was counsel for the nephew, and suc- ceeded in establishing the celebrated rule, that " Where the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately, or immediately, to his heirs either in fee or in tail, ' heirs' is a word of limitation, so that the ancestor has in him an estate of inheritance, and the heir takes by descent." * Coke was thenceforth, while he remained at the bar, employed in every case of importance which came on in Westminster Hall, and he was in the receipt of an im- mense income, which gave him a greater power of buy- ing land than is enjoyed even by an eminent railway counsel at the present day. He began to add manor to manor, till at length it is said the crown was alarmed lest his possessions should be too great for a subject. According to a tradition in the family, — in consequence of a representation from the government, which in those times often interfered in the private concerns of individuals, that he was monopolizing injuriously all • This rule has ever since been rigorously adhered to, except by the Court of King's Bench in Perrin v. Blake ; and that decision was reversed ia the Exchequer Chamber. — ^4 Burr. 2579 ; Bl. Rep. 672 ; Doug). 329. III I 25.> REIGN OF QUl.EN J'J./XA r./m/. [i;,.^'-' — \% I I ; ':{■ i land which came into the market in tlie county of Nor- folk, he asked and obtained leave to purchase " one acre more," whereupon lie became proprietor of the great " Castle Ague " estate, of itself equal to all his former domains. When he had been four years at the bar, he made a most advantageous marriage,' being the preferred suitor of I^ridget Paston, daughter and co-heiress of John Pas- ton, Esq., a young lady who had not only beauty, learn- ing, and high connection," but who brought him, first and last (what he did not value less), a fortune of ^'30,(X»o. Although he was dreadfully p.mished when he entered the state of wedlock a seconc time, he lived in entire harmony with his first wife, who died, to his inexpres- sible grief, leaving him ten children. His first professional honors were sure proof of the general estimation in which he was held, as they sprang not from intrigue or court favor, but from the spon- taneous wish of great municipal communities to avail themselves of his services. In 1585 he was elected Re- corder of Coventry; in 15S6, of Norwich, and 1592, of London, the citizens of the metropolis being unanimous in their choice of him, and having conferred a retiring pension of ,^100 a year to make way for him. At the same time, he was Readkr (or Law Professor) in the Inner Temple, by appointment of the Benchers; and he appears in this capacity to have given high satisfaction. In his note-book, still extant, he states that, having com- posed seven lectures on the Statute of Uses, he had de- livered five of them to a large and learned audience, when the plague broke out, and that, having then left London for his house at Huntingfield in Suffolk, — to do him honor, nine Benchers of the Temple and forty other Templars accompanied him on his journey as far as Romford. ' This event was supposed to have happened much later ; but the follow- ing entry has been discovered in the parish register at Cookly, in Norfolk; — " 1583. Edward Cooke, Esq., and Bridget Paston, the daughter of John Paston, Esq., were married the 13th of August, the year aforesaid." — yohnson, 1. 66. * She was of an ancient family in Norfolk, and nearly connected with the noble families of Rutland, Shrewsbury, Westmoreland, and Abergav- enny. «S93] ED WARD COKE. m He retained the office of Recorder of London only for a few months, then resigning it on becoming a law officer of the Crown. Burleigh, always desirous to enlist in the public service those best qualified for it, had for some time been well aware of the extraordinary learning and ability of Mr. Coke, and had been in the habit of consulting him on questions of dilTiculty affecting the rights of the Crown. y\ grand move in the law toolc place in the inonth of May, 1592, on the death of Sir Christopher Hatton, when Sir John Puckering being made Lord Keeper, Sir John Popham Chief Justice of England, and Sir Thomas Egerton Attorney General, — Coke, in his 41st year, became Solicitor General to the Queen. But he never seems, like his great rival, to have enjoyed Eliza- beth's personal favor. His manners were not prepossess- ing, and out of his profession he knew little; while I'rancis Bacon was a polished courtier, and had taken '* all knowledge for his province." Not being sooner appointed as a law officer of the Crown, Coke had escaped the disgrace of being concerned against the Queen of Scots, and the scandalous attempt of prerog- ative lawyers — of which Elizabeth herself was ashamed — to convert the peevish speeches against her of that worthy old soldier. Sir John Perrot, into overt acts of high treason. This last trial was still pending when the new Solicitor General was sworn in, but he was not required to appear in it ;' and the world remained ig- norant of the qualities he was to exhibit as public prose- cutor, till the arraignment of the unfortunate Earl of Essex. He was in the meanwhile to appear in a capacity uhich politicians in our time would think rather incon- sistent with his functions as a servant of the Crown. From the expenses of the Spanish war, the Queen was driven, after an interval of several years, to call a new parliament ; and the freeholders of Norfolk, proud of their countryman, now evidently destined to fill the highest offices in the law, returned him as their repre- sentative, the election being, as he states ih a note-book » 1 St. Tr. 1315. I ! .54 lifJGX OF QCrf.F.y KLlZAlU'lTir. [1593. still oxtant, "unanimous, free, and spontaneous, without any solicitation, or canvassing, on my part." The Commons, when ordered to choose a Speaker, fixed upon the new Solicitor General, it bein;:j thought tliat his ^reat le^al knowledge would supply the defect of parliamentary experience. When presented at the bar for the royal approbation, he thus be^an his address to Elizabeth : — " As in the heavens a star is but opacum corpus until it hath received li!.;ht from the sun, so stand I corpus opa- cum, a mute body, until your Ili^hncsa's bright shii-. n^; wisdom hath looked upon me, and allowed me. Mi' goes on to " discpialify " himself at great leng'li, '.leplor- ing the unlucky choice of the Commons: — " ^.■Pl :"-jst them," says he, "are many grave, m-my i' nrncd, ni iny deep wise men, and those of ripe judgments, but I am untimely fruit, not yet ripe, but a bud scarcely blos- somed. So as I fear me your Majesty will say * ncyjccta frugi clcguntur folia, amongst .0 many fair fruit you have plucked a shaken leaf.' " The Lord Keeper, after taking instructions from the Queen, said, — " Mr. Solicitor : Her Grace's most excellent Majesty hath willed me to signify unto you that she hath ever well conceived of you since she first heard of you, which will app'.ar when her Highness elected you from others to serve herself. But by this your modest, wise, and well-composed speech you give her Majesty further oc- casion to conceive of you above whatever she thought was in you. By endeavoring to deject and abase your- self and your desert, you have discovered and made known your worthiness and sufficiency to discharge the place you are called to. And whereas you account your- self corpus opacum, her Majesty, by the influence of her virtue and wisdom, doth enlighten you ; and not only alloweth and approveth vou. but much thanketh the Lower House, and comw.;.. C. . l]-> their discretion in mak- ing so good a choice an ^ elcCin ^'^ 00 fit a .. .n. Where- fore now, Mr. Speaker, ^> <.eeu in your office, and go forward to your commendation as you have begun." Mr. Speaker then made a florid oration on the Queen's supremacy, proving from history that this prerogative '593'] EDIVARD COKE. «6S had always belonged to the sovereigns of lingtand ; and COiK^ludcd by [>r:iying for libt^rty of s[)c. ch, and the other privileges of the (Jutnmons, The Lord Keeper answered by the QucuH's command : " Liberty r desert you have elected me, whch should bind me to do all my best service, and to be f;i, 'hful towards you. This bill is long, and if you put mc presently to open it I cannot so readily understand it a> I should. Wherefore, if it please you to give me leave to consider it, 1 protest I will be faithful, and keep it with all secresy." The House agreed to this proposal, aiul adjourned, it being now near mid-day. Mr. Speaker immediately posted off to court, pretend- ing afterwards that he had been s* nt for by the Queen, and ne.xt morning declared from th- chair that, although no man's eye but his own had seen the bill, her Majesty had desired him to say, "she wondtred that any should attempt a thing which she had expressly forbidden;" wherefore, with this she was highly L.ispleased. "And," added he, " upon my allegiance I am ommanded, if any such bill is exhibited, not to read it.' Thus the bill was quashed; and Morris, the mover of it, being committed to the custody of Sir John Fortescue, the Chancellor of the Exchequer, was kept in durance for some weeks after parliament was dissolved. «56 REIGN OF QUEEN ELIZABETH. [1593 •' : !' i(i. I One morning during the session, Coke, tl c Speaker, not a^jpcaring at the sitting of the House, great alarm arose ; but in the mean time the clerk was directed to proceed to read the litany and prayers. A message was thenieceived from the Speaker, that he was "extremely pained in the stomach, insomuch that he could not without great peril adventure into the air, but that he trusted in God to attend them next day." "All the members, being very sorry for Mr. Speaker's sickness, rested well satisfied ; and so the House did rise, and every man departed away." ' The dissolution took place on the i6th of April, when, the Queen being seated on the throne, the Speaker, in presenting the bill of supply for her assent, delivered an elaborate harangue on the dignity and an- tiquity of parliaments, which he concluded with the following ingenious comparison between the state and a bee-hive : " Sic oiim parvis coiiiponcrc magna solcbam. The little bees have but one governor, whom they all serve ; he is their king; he is placed in the midst of their habitation, tit in tuiissinia turri. They forage abroad, working honey from every flower to bring to their king. '■ Igna- vtun fucos pccus h prccscpibus arccnt.' The drones they drive away out of their hives, ' non habcntcs aaileos,' And whoso assails their king in him * iinniiilnnt aculeos^ ct tanicn rex ipse est sine acuclo' Your Majesty is that princely governor and noble Queen whom we all serve. Being protected under the shadow of your wings, we live. Under your happy government we live upon honey, we suck upon every sweet flower; but where the bee sucketh honey, there also the spider draweth poison. But such drones we will expel the hive. We will serve your Majesty, and withstand any enemy that shall as- sault you. Our lands, our goods, our lives, are prostrate at your feet to be commanded."' Who would suppose that this was the same individual who framed and carried the Petition of Right ! He was not again a representative of the people for above twenty years, being, before another parliament met, in the oflfice • Sir Simon d'Ewes : Journal, 470. • I Pari. Hist. 858-893. /■ «S94] EDWARD COKE. 857 of Attorney General, then supposed to be a disqualifica- tion for sitting in the Lower House ; and afterwards being successively Chief Justice of the Common Pleas and of the King's Bench. For his services in the chair he received a gratuity of ;{!"ioo; and he again devoted himself to his professional avocations, which had been considerably interrupted, although by no means discon- tinued, while he acted as Si)cakcr. Things went on very smoothl)- till the month of April in the following year, when, on the appointment of Sir Thomas Egerton as Master of the Rolls, the office of Attorney General became vacant. Mr. Solicitor thought that, as a matter of course, he was to succeed to it ; but there sprang up a rival, with whom he was in continual conflict during the remainder of this and the whole of the succeeding reign, — on whom, for deep injuries, he took deadly revenge, — but who, with posterity, has in- finitely eclipsed his f;ime. Francis Bacon, nine years his junior in age, and eight years in standing at the bar, with much less technical learning, had, by literary at- tainments, and by the unprecedented powers of debate which he had displayed in the late parliament, created for himself a splendid reputation, and, without any steadiness of principle, had by his delightful manners gained the zealous support of many private friends. Among these, the most powerful was the young Earl of Essex, now the favored lover of the aged Queen. He strongly represented, both to Elizabeth and her min- istei, the propriety of making Bacon at once the first law officer of the Crown, but was asked for " one pre- cedent of so raw a youth being promoted to so great a place." ' Coke was, very properly, appointed Attorney General; and, out of jealousy', meanly discouraged the proposal to make Bacon Solicitor General, — an appoint- ment which would have been unobjectionable. Amidst these intrigues, the office of Solicitor General remained vacant a year and a half, and it was at last conferred on Sir Thomas Fleming, characterized, as we have seen, by that mediocrity of talent and acquirement which has often the best chance of advancement. In the two parliaments which afterwards met under ' Naics' Life of Burleigh, iii. 436. I— 17 Il i J:u i iii ■ :«:l 1 III '■n\ ^1: aS8 REIGN OF QUEEN ELIZABETH. [1600 Elizabeth/ Coke had only to sit on the Judges' wool- sack in the House of Lords, and to give his advice, when asked, for the guidance of their Lordships on matters of law. But he was called upon to act a prominent part in the prosecution of state offenders. Towards the end of Elizabeth's reign, many individuals were committed on real or imaginary charges of being concerned in plots against the government or the person of the Sovereign ; and, for the convenience of inflicting torture upon them to force a confession, their place of confinement was usually the Tower of London. Thither did Mr. At- torney repair to examine them while under the rack ; and whole volumes of examinations in these cases, writ- ten with his own hand, which are still preserved at the State Paper Office, sufficiently attest his zeal, assiduity, and hard-heartedness in the service. Although after- wards, in his old age, writing the " Third Institute," he laid down, in the most peremptory manner, that torture was contrary to the law of England, and showed how the rack or brake in the Tower was first introduced there in the reign of Henry VL by the Duke of Exeter, and so ever after called The Duke of Exeter's daughter* — like his predecessor Egerton, and his successor Bacon, he thought that the Crown was not bound by this law ; and, a warrant for administering torture being granted by the Council, he unscrupulously attended to see the proper degree of pain inflicted. I do not know that this practice reflects serious discredit on his memory. He is not accused of having been guilty, on these occasions, of any wanton inhumanity. But he incurred never-dying disgrace by the manner in which he insulted his victims when they were placed at the bar of a criminal court. The first revolting in- stance of this propensity was on the trial of Robert, Earl of Essex, before the Lord High Steward and Court of Peers, for the insurrection in the City, and with a view to get possession of the Queen's person and to rid her of evil counselors. The offense, no doubt, amounted in point of law to treason ; but the young and chival- rous culprit really felt loyalty and affection for his aged mistress, and, without the most distant notion of pre^ ' 1597 and 1601. • 3 Inst. 35. .fr !■ iii-i i6co.J ED WARD COKE. 259 \u^ tcnJiniT to the crown, only wished to brinjr about a change of administration, in the fashion still followed in Continental states. Yet, after Yelverton, the Queen's ancient sergeant, had opened the case at full length, and with becoming moderation, Coke, the Attorney-General, immediately followed him, giving a most inflamed and exaggerated statement of the facts, and thus concluding : " But now, in God's most just judgment, he of his earl- dom shall be ' R013ERT THE Last, that of the kingdom to be ' R015ERT THE FUiST.' thought His natural arrogance I am afraid was heightened on this occasion by the recollection that Essex, stimulated by an en- thusiastic admiration of his rival, had striven hard to prevent his promotion to the office which he now filled. The high-minded, though misguided youth, exclaimed, with a calm and lofty air, " He playeth the orator, and abuses your Lordships' ears with slanders; but they are but fashions of orators in corrupt states." This was a humiliating day for our " order,' as Bacon covered himself with still blacker infamy by volun- teering to be counsel against his friend and benefactor, and by resorting to every mean art for the purpose of bringing him to the scaffold.' We must now take a glance at Coke in private life. He had no town house. During term time, and when occasionally obliged to be in London in vacation for official business, he slept in his chambers in the Temple. From the time of his marriage his home was at Hunting- field Hall, in the county of Suffolk, an estate he had acquired with his wife. On the 27th of June, 1598, he had the misfortune to lose her, she being then only in her thirty-fourth year. In his memorandum-book, kept for his own exclusive use, is to be found under this date the following entry : — " Most beloved and most excellent wife, she well and happily lived, and, as a true handmaid of the Lord, fell asleep in the Lord and now lives and reigns in Heaven." On the 24th of July she was buried in Huntingfield church, the delay being necessary for the pomp with which her obsequies were celebrated. > St. Tr. 1333-1384. 'dl ll 260 REIGN OF QUEEN ELIZABETH. [1598. From ambition and love of wealth, probably, rather than from " thrift,"— " the funeral bak'd meats Did coldly furnish forth the marriage tables." There was then at court a beautiful young widow, only twenty years of age, left with an immense fortune and without children, highly connected, and celebrated for wit as well as for birth, riches, and beauty.' This was the Lady Hatton, daughter of Thomas Cecil, eldest son of Lord Burleigh, afterwards Earl of Exeter. She had been married to 1 he nephew and heir of Lord Chan- cellor Hatton. Her first husband dying in 1597, as soon as she was visible she was addressed by her cousin Francis Bacon, then a briefless barrister, but with bril- liant professional prospects, although he had " missed the Solicitor's place." Whether she thought him too " contemplative," I know not, but she gave him no en- couragement ; and his suit was not at all favored by her relations, the Cecils, who were jealous of his superior abilities, and v/ishcd to keep him down, that there might be no political rival to Robert, the Treasurer's younger son, now filling the olTue of Secretary of State, after- wards Earl of Salisbury, and prime ininister to James L Bacon employed the powerful intercession of the Earl of Essex, who, prior to sailing on his expedition to the coast of Spain, wrote pressing letters in support of his suit to the lady herself, and to her lather and her mother, saying that " if he had a daughter of his own he would rather match her with the accomplished law- yer than with men of far greater titles." The affair was in this state when Coke became a wid- ower. He immediately cast a longing eye on the widow's great possessions ; but probably he would not have been roused to the indecorous and seemingly hopeless attempt of asking her in "marriage, had it not been for the appre- hension that, if Francis Bacon should succeed, a political and professional rival would be heartily taken up by the whole family of the Cecils, that he himself, thus left with- • When Ben Jonson's " Masque of Beauty " was played before the King at Theobald's and at Whiteiiall, in 1607, slie was one of the fifteen court beauties who, with the Queen performed iu the show. — Nichol's Progresses, ToL il p. 174, 175. '1%. tS98-l EDWAJID CO A z6i out support, would probr.lily so-ki bo sucrificcd. He re- solved to declare liiinself her suitor, in spite of all objec- tions and difficulties. Soon afterwards died the great Lord Trcaf.urer Bur- leigh ; and Coke, attending the funeral, opened his scheme to her father, and her uncle Sir Robert. They, looking to his great wealth and high position, and always afraid of the influence which 13acon might acquire in the House of Commons, said they would not oppose it. We are left entirely in the dark as to the means he employed to win the consent of the lady, lie certainly could not have gained, and never did gain, her affections ; and the probability is that she succumbed to the impor- tunities of her relations. Still she resolutely refused to be paraded in the face of the church as the bride of the old wrinkled Attorney General, who was bordering on fifty — an age that ap- peared to her to approach that of Methuselah ; and she would only consent to a clandestine nuu-riago by a priest in a private house, in the presence of two or three wit- nesses. But here a great difficulty presented itself, for Archbishop Whitgift had jut,t tluuidered from Lambeth an anathema against irregular marriages. In a pastoral letter addressed to all the bishops of his province, after reciting " that many complaints had reached him of min- isters, who neither regarded her ALajesty's pleasure nor were careful of their credit, marrying couples in private bouses, at unreasonable hours, and without proclamation of banns, as if ordinances were to be contemned, and ministers were to be left at large to break all good order," his Grace expressly prohibited all such offenses and scan- dals for the future, and forbade, under the severest pen- alties, tiie celebration of any marriage except during canonical hours, in some cathedral or parish church, with the license of the ordinary, or after proclamation of banns on three Sundays or holidays.' It was an awkward thing for the first law officer of the Crown, celebrated for his juridical knowledge, and always professing a profound reverence for ecclesiastical author- ity, to set at defiance the spiritual head of the Church, and to run the risk of the " greater excommur.ication " ' Stiypc's Life of Whitgift, p. 522. 362 REIGl^ OF QUEEN ELIZABETH. [1598. n*A whereby he would not only be debarred from the sacra- ments and from all intercourse with the faithful, but would forfeit his property, and be liable to perpetual im- prisonment. However, he determined to run all risks rather than lose the prize within his reach ; and on the 24th of November, 1598, in the evening, in a private house, without license or banns, was he married to the Lady Hatton, in the presence of her father, who gave her away. Coke probably hoped that this transgression would be overlooked; for Whitgift had been his tutor at college, and on his being made Attorney General, had kindly sent him a Greek Testament, with a message " that he had studied the common law long enough, and that he should thereafter study the law of God." But this pious primate now showed that he was no respecter of persons, for he immediately ordered a suit to be instituted in his court against Coke, the bride, the Lord Burleigh, and Henry IBathwell the Rector of Okeover, the priest who had performed the ceremony. A libel was exhibited against them, concludinq; for the " "reatcr excommuni- cation" as the appropriate punishment. Mr. Attorney made a most humble submission ; and, in consequence, there was passed a dispensation under the archiepiscopal seal, which is registered in the arch- ives of Lambeth Palace, absolving all the defendants from the penalties which they had incurred, and alleging their " ignorance of the ecclesiastical law" as an excuse for their misconduct, and for the mercy extended to them. However, the union turned out as might have been foreseen, — a most unhappy one. There was not only a sad disparity of years, but an utter discrepancy of tastes and of manners between husband and wife. He was a mere hiwyer, devoted to his briefs, and hating cdl gajx'ty and exj^ense. She deliuliisquc Konioinis, the senate and people of Rome ; but now they may truly W- expressed thus, Stu/fiis popii/its tjiKcrit Roinain, a foolish people that run- neth to Rome. And here I may a[)tly narrate the apo- l<)j;ue or tale of the cat and the mice. The c.it having a long time preyed upon the mice, the poor creatures at last, for their safety, containeil themselves within their lu)les ; but the cat, fimling his [)rey to cease, as being known to the mice that he was indeed their enemy and a cat, di;viscth this course following, viz., changeth his hue, getting on a religious habit, shaveth his crown, walks gravely by their holes, and yet perceiving that tl' kept their holes, and looking out suspected thi- he formally and father-like Kaiu unto them, fucrajii noil sum, fralcr, caput, aspicc toiisiiin ! Oh, brother ! I am not as you take me for, no more a cat ; sec my habit and shaven crown!' Hereupon some of the more credulous and bold among them were again, by this tleceit, snatched up ; anil thenTore, when afterwards he came as before to entice them forth, they would come out no more, but answered, ' Cor tibi rcstat idem, vix tibi prccsto ftiii'iii. Talk what )'ou 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." When Coke came to the last head, he showed the ex- tent to which courtly flattery was in that age profanely carried. On the receipt of the mysterious letter to Lord iMonteagle, saying, " thoughc theare be not the appear- .'ince of ani stir, yet i saye they shall receyve a terribel blowc this parleamcnt, and yet they shall not seie who hurts them," the Council before whom it was laid, with- out consulting the King, immediately suspected the true nature of the plot, and took measures to guard against it. The Earl of .Salisbury, in liis 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 Ki -, I 270 REIGN OF JAMES I. [1606. while the King was sittinj; in that assembly: of which the Lord Chamberlain conceived more probability be- cause 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 undertook to show " how the King was divinely il- luminated by Almighty God, the only ruler of princes, like an angel of God, to direct and point out as it were to the very place — to cause a search to be made there, out of those dark words of the letter concerning a terrible bloti'." The prisoners were undoubtedly all guilty, and there was abundant evidence against them ; but we must de- plore the manner in which Coke indulged in his habit of insulting his victims. When Sir Everard Digby, inter- rupting 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 cruelty which casts an eternal stain upon his memory, "that he must not look to the King to be honored 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 exor- bitant 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 vaga- bonds ; let his posterity be destroyed, and in the next generation let his name be quite put out." I am glad for the honor of humanity to add, from the report, " Upon the rising of the court. Sir Everard Dig- by, bowing himself towards the Lords, said, * If I may but hear any of your Lordships say you forgive me, 1 shall go more cheerfully to the gallows.* W^hereunto the Lords said, ' God forgive you, and we do.' " '' There was still greater interest excited in the case of Garnet, the Superior of the Jesuits, who was suspected • Winwood, ii. 171. • 2 St. Tr. 159-195 . l- ■' I x6o6.] ED WARD COKE. 971 \ of having devised t le plot — who had certainly concealed it when he knew it — but against whom there was hardly any legal evidence. His trial came on at the Guildhall 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 explosion. 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 en- titled to the crown of England as the true heir of I^dward 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 de- grees, 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 quara varas 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, further, to open and enlighten his understanding out of a mysti- cal and dark letter, like an angel of God, to point to the cellar and command that it be searched ; so that it was discovered thus miraculously but even a few hours before the design should have been executed." Thus he de scribed the prisoner : " He was a corrector of the com- mon law print with Mr. Tottle the printer, and now is to be corrected by the law. He hath many gifts and endow- ments 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 Jesuits ; that is, a doctor of six Z?'j, — as Z?is- l* 272 REIGN OF JAMES I. [1606. If I ^m I p .V" j, ' f. "t simulation, /deposing of princes, Z^ispo^ing of kingdoms, /daunting and Z>eterring of subjects, and Z^estruction." Then he wittily and tastefully concluded : " Qui cum Jcsti itis, noil itis aim ycsuitis, for they encourage them- selves 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 ; inso- much that whoso sceth 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 offense than misprisiun of treason, in not revealing what had been communicated to him in confession ; and execution was delayed for two months, till, after much equivocation, he was induced by various contrivances to admit that the plot had been mentioned to him on other occa.'^ions, 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 appeared before the public as Attorney General. He had filled the ofiice for above twelve years — the most discreditable portion of his career. While a law officer of the Crown, he showed a readiness to obtain convictions for any offenses, 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 satisfaction first to Burleigh, and then to his son and successor, Robert 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 con- sented to Anderson and Gawdy being successively ap- pointed to the office of Chief Justice of the Common Pleas, at that time the most lucrative, and considered the most desirable, in Westminster Mall, next to that of Lord Chancellor. The Attorney General was sup- posed to hold by as secure a tenure as a Judge ; and his fees, particularly from the Court of Wards and Liveries, « 2 St. Tr. 217-353. i6o6.] ED WARD COKE. his Iries, 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 II., 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 death of Gawdy, he resigned his oflice of ^Vttorney General and became Chief Justice of the Court of Common Pleas. As a preliminary, he took upon himself the degree of Sergeant-at-lavv ; and he gave rings with the motto, " Lex est tutissima cassis.'"^ Mr. Coventry, afterwards Lord Keeper, whom he had much patronized, acted as his PONV.' 'The salary of A'tonicy-Gcuenil wai only ;^3i 6 87., but his officLil cmolumcats amoiinlcil to j^yooo a year, Coke's private practice, besides, must have been very protitable to hiin. * Dug. Or. Jur. p. 102. * I have been favored, by a learned and witty friend of mine, with the following " Note on the Sergeant's Pony. — Wlicn liie utter barrister is ad- vanced ' ad gradum servienlis ad legem,' he gives, as the reporters of all the courts never omit to record, a ring wiili a motto ; a posy, sometime;; more or less applicaljlo to the ilonor or to tlie occasion, — sometimes to neither. These rings are presented to persons higli in staiiun (tliat for tlie Sovereign is received by the hands of the Lord Chancellor), and to all the dignitaries of the law, by a barrister whom the Sergeant selects for that honoralile ser- vice, and who is callcil his ' I'ony.' Wliy ? Simply because the olfering he brings is the hoiiorariton, compounding, or cmnposition, which is paid by the learned graduate upon his degree of sergeant-at-law. li;N'i)ll.\MU.s (act ii. scene 7) enters with money in a bag. /gaor. — ' Ilic est /:\i;e'w /oii^. liic sunt sexcent;e corome pro meo caro cortle Kosai)elia.' Upon which pas- sage, says the learned commentator Hawkins : "Legem pone. 'I'his ap- pears to have been a cant term for ready money.' Dr. Ueylin, in his; ' Voyage of France,' p. 292, spealiing of the nniven ity of Orleans, ' In the bestowing of their degrees here they are very liberal, and deny no man that is able to p.ay his fees. Lrgcm poitere is witii tlieiu more powerful than legem dicere ; and he that hath but his gold ready, shall have a sooner despatch than the best scliolar upon the ticket.' In the translation of Rabelais by Ozell, c. xii. book 4, the piirase ' lin payant,' is rendered 'the Legem Pone.' 'They were all at our service for tlie Legem Tone.' And iinally, Tusser, in his 'Good Husbandly Les.^ons wortliy to be followed by such as will thrive,' prefixed to his ' Four Hundred I'ointi of Good Hus- bandry,' recommends punctuality in payment of debts by the following dis'ich ; — ' Use Legem Pcne to pay at thy day, But use not " Orenius " for often delay.' In the language, therefore, of a sergeant's posy, ' Ex tequo et bono,' I should say that, regard being had to the valuable consideration of which h* b the bearer, his pony's derivatioa savors more of the bonus than thf tauusi^ I— 18 274 REIGN OF JAMES I. ri6o6. ■■!i'i i !!i. I i " He was sworn in Chancery as Sergeant," says Judge Croke, the reporter, " and afterwards went presently into the Treasury of the Common Bench, and there by Popham, Chief Justice, his party robes were put on, and he forthwith, the same day, was brought to the bar as Sergeant, and presently after his writ read and count pleaded, he was created Chief Justice, and sat the same day, and afterwards rose and put off his party 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 Sergeants* Inn to West- minster in the party-colored robes of a Sergeant was dispensed with in his case by special favor ; 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 fol- lowed."' ' Cio. Jac las ' Ibid. vol. iii. introd. p. 7. I I 'I- V' &V i I. ' ~.m '■■■ % \ ' :«^?< CHAPTER 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 unscrupulously stretched the prerogative of the Crown, showing himself for the time utterly regardless of public liberty ; he perverted the criminal law to the oppression of many individuals; and the arrogance of his demeanor to all mankind is un- paralleled, liut he made a noble amends. The whole of his subsequent career is entitled to the highest ad- miration. Although holding his 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 inde- pendence 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 I'arliament. Not only was his purity unsus- pected in an age when the prevalence of corruption is supposed 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 man- ners even became much more bland ; he listened with patience to tedious arguments ; he was courteous when it was necessary to interpose, and, in passing sentence on those who were convicted, he showed more tender- a'j6 REIGN OF yAMES I. [1606-1613. IM ness for them than he had been accustomed to do fur those whom he prosecuted while they were still pre- sumed to be innocent. He remained Chief Justice of the Common Pleas above seven years; and, considering his profound learn- ing and unwearied diligence, we may, without disparage- ment to any of his successors, affirm that the duties of the office have never since been performed so satisfac- torily. The only case in which he was supposed by any one to have improperly attended to the wishes of the Govern- ment was that of the POSTNATI. He concurred with the majority in holding that all persons born in Scot- land after the accession of James I. to the throne of England 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 plau- sible analogy to support it — that persons born in Nor- mandy and Aquitaine were not considered aliens — being explained av.'ay by the consideration that those prov- inces had been reconquered from France, and were con- sidered as held of the crown of England. But our Chief Justice was not much acquainted with interna- tional law, and he was satisfied with the doctrine of " re- mitter" as laid down by Littleton, — applying it to the case of Edward HI. and Henry V. recovering the French provinces which had belonged by right wf birth to Wil- liam the Conqueror and Henry H,, and which were therefore to be considered, when again annexed to Eng- land, as taken by descent, and not by conquest, — or, as he called it, by purchase. His opinion, unconsciously to himself, may have been influenced by the efforts he had made while Attorney General to please the King in bringing about a union with Scotland ; but the warm piaise which he bestows upon the decision, in reporting it, should remove all doubt as to his sincerity on this oc- casion, and the inflexibility which led to his downfall should relieve his memory from the scandal of seeking royal favor after being sworn to administer the law as a Judge. ' Life and Reign of King James, p. 41 H j6ii.] ED WARD COKE. «) / A plan was now goin;^' forward systematically to carry into effect the notion which James entertained, that he was entitled to rule in Eofj^land as an absolute sover- eign. One of the engines chiefly relied upon for success was the Court of HlGll COMMiS^nON. 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 gov- erned 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 cog- nizance of temporal rights and offenses. The Court having proceeded hitherto only by citation^ a new at- tempt 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, supported by his brethren, determined that the High Commission had no such power ; that the practice was contrary to MAGNA CllARTA ; and that, if the pursuivant should be killed in the attempt, the party resisting him would not be guilty of murder." The authority of the Court of Common I'leas to check the usurpations of the High Commission by granting prohibitions was con- tested, but Coke successfully supported it, and in various instances fearlessly stopped proceedings before this tri- bunal which the King was known to favor.' At last the ingenious device was resorted to of includ- ing Coke himself among the Judges of the High Com- mission, in the hope that he would then no longer op- pose it. But he resolutely refused to sit as a member of the Court ; whereupon " the Lord Treasurer said that the principal feather was plucked from the High Com- missioners." * This Court, however, when Coke was re- moved from the bench, renewed and extended its usurp- ations, 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.* ' Stat. I Eliz. c. I. » 12 Rep. 49. * Lan^ciale's cabc, 12 Rep. 50. 58 ; Sir William Chauncey's case, ib. Sa. ♦ 12 Rep. 88 • An illegal attempt to revive it by James II. was one of the causes of he devolution. 278 REIGN OF JAMES I. [1611. \ \\ The Hi;;li Cdininission bcincj silenced for .1 time, Archbishop lluicroft suc^j^ested the notable expedient of "the KiiiLj j'>id;;in<;j whatever cause he pleased in his own person, fri. from all risk of prohibition or appeal." Accordiny;ly, on a Sunday, the Kini^ summoned all the Jud;;c.s before him and his Council, at Whitehall to know what thoy could say against this proposal. The Archbishop thus began : "The Judi'^es arc but the delecjates of your Majesty, and administer the hnv in your name. What may be done by the a:;ent may be done by the principal ; there- fore your Majcst)' may take what causes you may be pleased to determine from the determination of the Judges, and determine them j'oursclf. This is clear in divinity ; such authority, doubtless, belongs to the King by the Word of God in the Scriptures." Cokw C. y. (all the other Jiidi^-es asseiitiii<-) : " By the law of England, tlie KiTig in his own person cannot ad- judge any case, either criminal, as treason, felony, &c., or betwixt party and party concerning his inheritance or goods ; but these matters ought to be determined in some court of iu^•ticc. The form of 'jiving iud'jincnt is idea eonsiiferatinu est per ciiriemi ; so the Court gives the judgment. Ricliard 111. and Henry VII. sat in the Star Chamber, but this was to consult with the justices upon certain questions proposed to them, and not iti judicio. So in the King's Jiench he may sit, but the Court gives the judgment. I'.rgo, the King cannot take any cause out of any of his courts, and give judgment upon it himself. No king since tlie Conquest has assumed to himself to give an\' judgment in any cause whatsoever wliich con- cerned the administration of justice within this realm. So the King cannot arrest any man, as laid down in the Year Book i II. VII. 7. 4, 'for t lie party cannot have remedy against the King.' So if the King- give any judg- ment, what remedy can the party have ? ' We greatly marveled that the most reverend prelate durst assert that such absolute power and authority belongs to the King by the Word of God, which requires that the laws even in heathen countries be obeyed. Now it is pro- ' So Markham, C. J., told Edward IV. lliat " tlio King cannot arrest* man for suspi:ion of Uua.on or felony, as cthcis his lie;^es iiiay." .6X2.] ED WARD COKE. 279 vidcd by Magn.i Charta, and other statutes duly passed and assented to by the Cro\vn, ' Quod tarn majores quam minores justitiani habcant et reeipiant in CURIA Domini Rc^^is.' l?y 43 Ed. III. c. 3, no man shall be put to an- swer without presentment before the justices, or by due process according to the ancient law of the land ; and any thin;^.^ 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 liaving been given, it was reversed for this, — that the matter belonged to the common law." A7//i,'- Jaiiu's : " M)' Lords, I always thought, and by my saul I have often heard the boast, that your English law was founded upon reason. If that be so, why have not I and others reason as well as you the Judges?" Coke, C. y.: " True it is. please your IVIajesty, that God h.as endowed your Majesty with excellent science as well as great gifts of nature; but your Majesty will allow me to say, with all reverence, that j^ou 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, oi* goods or fortunes, of your subjects, are not to be decided by natural reason, but by the artificial reason asid judgment of law, which lav/ is an art which requires long study and experience before that a man can alLain to the cognizance of it. The law is the golden met-wand and measure to try the causes of your Majesty's subjects, and it is by the law that your Majesty is protected in safety and peace." Kiiii^ jfauics (in a great rage) : " Then I am to be under the law — whicli it is treason to affirm." Col'c, C. J.: " Thus wrote Bracton, ' Rex non debet esse sub homine, sed sub Deo ET LEGE.' " ' 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 New Market, «■ * * my Lord Coke and all the judges of the common law were before his Majesty, to answer some complaints of the civil lawx'crs for the general granting of prohibi- « 12 Coke, 63. 38o REIGN OF JAMES I [l6l3 .•■Ml tions. I heard that the Lord Coke, amontrst other of- fensive speech, sliould say to his Majesty that his Ilit^h- ncss was defended by his laws; at which sayin^f, and with other speech then used by the Lord Col:e, his Majesty was very much offended, and tokl iiini tluit he spake foolishly, and said that he was not defended by his laws, but by God ; and so gave the Lord Coke, in oMier words a very sharp rei)rehension both for that and oiier things, and withal told him that Sir Thomas Compton, the Judge of the Admiralty Court, was as good a Judge." ' 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 Coke, however, was the true reason for abandoning the scheme, for, — if it had not thus been boldly announced as illegal, — by the aid of sycophants it would have proceeded, and much injustice would have been perpetrated. Coke likewise, for a time, gave a serious check to arbi- trary proceedings in the Courts of the Lord President of Wales and of the Lord President of the North, Having been summoned, with his brother Judges, before the King and the Council, on a complaint of the pro- hibitions he had granted against these proceedings, he justified fully all that he had done, and thus concluded : "We do hope 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 here- after called before you." " On this occasion he had a lucky escape, for he says, "the King was well satisfied with these reasons and causes of our proceedings, "'ho, of his grace, gave me his royal hand, and I departed from thence in his favor." * But Coke incurred the deepest displeasure of his Majesty by declaring against a pretension — called a ' Lodge's Illustrations, iii 564. • 12 Coke, 5a • 13 Co. 33. s:s |6t2.] EDWARD COKE. fSt r, and 50. " prcrof;ativc " — which mif^ht s'x^". (.iitircly have super- seded parliament. It had been usual for the Crown, from ancient times, to issue proclamations to enforce the law; and sometimes they had introduced new rcj^u- lations of police, which, being of small importance, and for the public benefit, were readily acfjuiesccd in. James, from his accession, began to issue proclamations whenever he thought that the existing law required amendment. 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 tlie liberty, but also to the goods, inheritances, and livelihood of men ; some of them tending to alter points of the law, and make them new ; other some made shortly after a session of parlia- ment, for matter directly rejected in the same session : others api)ointing punishments to be inflicted before lawful trial and conviction; some containing penalties in form of penal statutes; soine referring the punish- ment of offenders to courts of arbitrary discretion, which have laid heavy and grievous censures upon the delin- quents ; some, as the proclamation for starch, accom- panied v/ith letters commanding in([uiry to be made against transgressors at the quarter-sessions ; and some vouching former proclamations, to countenance and war- rant the latter." On Bacon, now Solicitor General, and in high favor at Court, w'as imposed the delicate task of presenting this address, which he tried to soften by saying : — " We are persuaded that the attribute wliich was given by one of the wisest writers to two of the best emperors, ' divus Nerva and divus Trajanus,' so saith Tacitus, ' res olim insociabiles miscuerunt, imperium ct libertatem,' may be truly applied to your Majesty. For never was there such a conservator of regality 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 gcinitus coluvibce, the mourning of a i i: If I ■i ' :1 ' III 1 f5, i .5 1; 1 'J i '■■. ■ ' ;! m i ''^ 1 ■ 1 1 1 li aSa REIGN OF JAMES I. [i6ia. dove, with that patience aiul luiinilil}' of heart which appcrtaineth to lovin;:j and loyal subjects." James, however, thinkinsr that this complaint re- sembled more the roaring of a lion, was much alarmed ; and, really believing;, from the flatterers who surrounded 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 inight 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 commencement, 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 l(.",ive it to the King to order in it according to his wi ;dom, 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 a commencement ; but where authority and precedent is wanting, there is need of great consideration before that any thing of novelty shall be established, and to provitle lh;!t this be not against the law of the land ; for the King cannot, with- out parliament, change any part of the common law, nor create any offense by his proclamation which was not an offense before. But I only desire to have a time of con- sideration and conference ; iox deliberandum est din quod stiituendmn est se///el." 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 offense which was not an offense before, for then he may alter the law of the land by his proclamation in a high point ; for if he may create an offense where nom.; is, upon that ensues fine and imprisonment. Also tiie law of England is divided into three parts: commcv.i law, statute law, and custom ; but the King's proclama- tion is none of them. Also, malum, ant est malum in sc, aut prohibitum ; that which is against common law is malum in sc ; malum prohibitum is such an offense as is 16131 EDWARD COKE. 283 prol:Il»itctl by act of p.uliinu'iU. Also it was resolved, that the Kill!' hath no i)i'cr(j",ativc h >t that which tlic hiw of the land allows him. Hut the '•Cinijf, for preven- tion of offenses, may admonish his suIjJoc s by prochuua- tion that they keep the laws, and do noi offend them, upon punishment to be inflicted by the law.'" Coke, in reporting these resolutions of the Jud<;e3, adds, on his own authority, " The Kin;^, by his procla- mation or otherwise, cannot chaULje any part of the common law, or statute law, or tlie customs of the realm. Also, the Kintjj cannot create any offense, by his prohibition or pr(Jclamation, which was not an offense before, for that were to chan^^e the law, and to make an offense whicli was not ; for ///-'/ uon est lex, ibi non est t>-ansj^rcssio ; erf.jo, that which cannot be punished with- out proclamation cannot be punished with it."^ Vet Hume, in commentiiiL^ '.^'W the issuing of proclamations by James I., has the audacity to say, " The lec^diLy of this exertion was established by uidform and undisputeci practice, and was even acknowled;.';ed by lawyers, who made, however, this difference between laws and procla- mations, that the authority of the fornur w;is peri)etual, that of the latter e\[)ired with the Soverei^^n who emitted them."' Coke met with a very sensible mortification, in being promotinl to be Chief Justice of the Iviiv^'s Bench, on the death of Chief Jur.tice ITemint;. This oftke, althouL^h of hiL;her rank', was then consitlered less desirrible than the ehiefship of the Common Pleas, for the profits of the former were much less, with increasetl peril of i;ivinj^ offense to the Government, and so bcinj^ dismissed. Coke's seemin^!^ promt)ti(Mi was owint; to the spite and craft of his rival. B.icnn was impatient for tlu- Attorney ' 12 Kcp. 7^. ' 12 Cuke, IS. " \'()l. vi. p. c ;, Wo oiuf.it not hastily to accuse liiin (if willful niisicpre- Fcn'.atiDii or huppros^iun, I'ur lie was uitcrl)' uiiai'ipiaiiilcil with I'.iii^lish juriilic.il writers. ilbbon cntorcd upon a laborious study of tho Roniaii civil law, to fit luni to write liis Dr.ci.iNK ANU Kai.I, ; hut Ihimc never had the slit;htest insii^lit into our jurisjirudeuce, and his work, however ad- mirable as a liurary composition, is a very defective performance as a history. Of the ^apposed 2 St. Tr. 786. ' There is extant a very curious letter of Mr. Attorney General Bacon to the King, .ibout getting up the case : — " If your Majesty vouchsafe to direct it yourself, that is the best ; if not, I humbly pray you to require inj Lord Chancellor that he, togcthei with my Lord Chief Justice, will confci with myself and my fellows that shall be used for the marshaling aiic if' '■ 1^ " i 1 > 1 ■r 1 ^ tf 1 I R i" 288 REIGN OF JAMES I. [i6i6 " of all felonies, murder is the most horrible ; of all mur- ders, poisoning is '.he most detestable ; and of all poison- ings, the lingering poison," — adding that "poisoning was a popish trick." When Mrs. Turner, one of the subor- dinate agents, was on her trial, he said " she had the seven deadly sins ; for she was a whore, a bawd, a sorcerer, a witch, a papist, a felon, and a murderer." Sir John Hollis and others having, at the execution of Weston, who had been employed to administer the poi- son, made some observations on the manner in which his trial had been conducted by Lord Chief Justice Coke, — the same Chief Justice Coke, sitting in the Star Cham- ber, passed sentence upon them, ordering that, besides being subjected to fine and imprisonment, they should m.xke an humble apology to himself at the bar of the Court of King's Bench, lie then blurted out this witty parody, — " Et qune tanto fuit Tyburn tibi causa videiidi ?" adding that " he himself never h;id attended executions after reading the lines in Ovid — " Et lupus et vulpes instant moricntibus Et quKCunque minor nobilitate fcra est." At the arraignment of the Countess of Somerset, al- though she pleaded guilty, and Coke attended only as assessor to the Lord High Steward's Court, he said that "the persons engaged by her to commit the murder had before their deatli confessed the fact, and died peni- tent; and that he had besought their confessor to prove this, if need should require."' But these things were quite according to the estab- lished rules of proceeding, and in no respect detracted boumlinL'; of the evidence, that we may liavc the help of his opinion as well as that oi^ my Lord Chiuf Justice ; whose great travels as I much commcml, yet lliat same j^leropliaria or over-confidence dolli always subject things to a great deal of chance." — 22d of January, 1615-16. ' In the course of one of tliese trials, the Chief Justice was placed in a very ridicuk)us situation. Those wiio were plotting against the life of Sir Thomas Overbury, had super.stitiously consulted one Fonnitn, a conjuror, respecting their own fate ; and this impostor had kept in a book a list of all those who had come to him to have their fortunes told. " I well remember," says Sir Anthony Welden, " there was much mirth made in the court upon the showing this book ; for it w 1 reported the first leaf my Lord Coke lighted on he found his own wife s nasne." — Court and Character 0/ King^ yaincs, p. III. [i6i6 "all mur- l poison- ningwas le subor- had the bawd, a ■er." Sir ution of ■ the poi- vhich his ; Coke, — ir Cham- :, besides :y should ar of the his witty cecutions erset, al- only as he said murder ed peni- to prove ic estab- ;tractcd lion as well commend, tilings to a ilaccd ill a life of Sir a conjuror, a list of all emernber," court upon ,ord Coke er of King, x6i6.1 ED WARD COKE. 389 from the credit with the Chief Justice acciuired by the vigor and ability with which he had secured the convic- tion of the noble culprits ; and he was not suspected of being accessory to their pardon, — granted in considera- tion of their discreet silence on topics which the King was very desirous of keeping from public view.' Sir Edward Coke's high reputation now raided a gen- eral belief that he would succeed Lord Ellesmere as ClKincellor. This threw Bacon into a state of alarm, and he wrote a letter to the King, strongly urging his own claims to the great seal, and disparaging his rival : — " If you like my Lord Coke," said he, '' this will follow, — first, your Majesty shall put an overruling nature into an overruling place, which may breed an extreme ; next, you shall blunt his industries in matti;r of your finances, which scemcth to aim at another place;''' and, lastly, popular men are no sure mounters for your Majesty's saddle.*" The effect of this artful representation was much heightened by Coke's continued display of independence ; for although he would, no doubt, have been well pleased to be promoted to the office of Chancellor, he would not resort to the compliances and low arts by which Bacon was successfully struggling to secure the prize. On the contrary, from a sense of duty, he spontane- ously involved himself in a controversy which made him very obnoxious to the Government. A love of power, or of popularity, very easily deludes a judge into the conviction that he is acting merely with a view to the public good and under the sanction of his oath of office, when he \=, seeking unwarrantably to extend the juris- diction of his court. Lord Chancelkr Ellesmere having very properly granted an injunction against suing out execution on a judgnicnt obtained in the King's Bench by a gross fraud, Lord Chief Justice Coke, asserting that this was a subversion of the common law of Eng- land, ap»d contrary to an act of parliament, induced the party against whom the injunction was granted to pre- pare an indictment against the opposite party, his coun- sel, his solicitor, and the Master in Chancery who had ' St. Tr. (ji 1-1034 ; Amos's Oyer of Poi.sonin*;. * 1 his n^lors to tiio oltice of Lord Treasurer, which was afterwards coiv» i'erred ou Chief Justices. ^ iJacon's Works, v. 371 1— lij ago REIGN OF JAMES I. [1616. ■1 I ■i ft * i assisted the Chancellor when the injunction was granted. He then took infinite pains in seeking out and marshal- ing the evidence by which the prosecution was to be supported. The grand jury, however, threw out the in- dictment ; and the matter being brought before the King, he decided with a high hand in favor of the Court of Chancery.' Bacon, rejoicing to see that he could now have no rival for the great seal, wrote to the King, with seeming mag- nanimity, " My opinion is plainly that my Lord Coke at this time is not to be oisgraced." Nevertheless he in- veighed against his ri^^al for "the affront to the well- serving person of the Chancellor when thought to be dying, — which was barbarous." The deadly offense at last given to the King was by the proceedings in the "case of Commcndams," ' in which Coke's conduct was not only independent and energetic, but in strict conformity to the law and consti- tution of the country, and every way most meritorious. A question arising as to the power of the King to grant ecclesiastical preferments to be hcl(.l along with a bish- opric, a learned counsel, in arguing at the bar, denied this power, and answered the reason given for it — '* that a bishop should be enabled to keep hospitality" — by ob- serving that " no man is obliged to keep hospitality be- yond his means," and by a sarcastic comparison between the riches of modern prelates and the holy apostles, who maintained themselves by catching fish and making tents. The Bishop of Winchester, who happened to be present at a trial in which his order was so deeply con- cerned, was highly incensed by these liberties, and hur- rying to the King, represented to him that the Judges had quietly allowed an attack to be made on an impor- tant prerogative of the Crown, which ought to be held sacred. Bacon, the Attorney General, being consulted, he mentioned a power which, according to many prece- dents, the King possessed, of prohibiting the hearing of any cause in which his prerogative was concerned, Rege inconsulto, — i. e., until he should intimate his pleasure on the matter to the Judges ; and it was resolved that ' See Lives of the Chancellors, vol. ii. ch. 1. * CoU V. Bishop of Lichfield^ Hobart, 193. [i6i6. granted. marshal- as to be it the in- ifore the he Court 3 no rival inrj mag- l Coke at 2SS he in- the vvell- ht to be ig was by ims," ^ in dent and id consti- ritorious. [ to grant th a bish- ^r, denied — " that by ob- ility be- aetvveen ties, who making led to be ply con- and hur- e Judges n impor- be held Dnsulted, y prece- aring of led, Ki-^e pleasure ved that 1616.] ED WARD COKE. •91 in this case such a prohibition should issue. Accord- ingly Bacon, in the King's name, wrote a letter to Sit E. Coke and the other Judges, saying — " For that his Majesty holdcth it necessary, touching his cause of commendams, upon the report which my Lord of Winchester, who was presen at the last argu- ment, made to his Majesty, that his Majesty be first consulted with ere there be any farther argument, there- fore it is his Majesty's express pleasure that the day ap- pointed for farther argument of the said cause be put off till his Majesty's farther pleasure be known upon consulting him." Although the royal prerogative had been incidentally brought into question, the action was to decide a mere civil right between the litigating parties; and the ille- gality of this interference was so palpable, that Coke had no difficulty in inducing his brethren to disregard it, and to proceed in due course to hear and determine the cause. Judgment being given, Coke penned, and he and all the other Judges signed, a bold though respectful letter to their " most dreaded and gracious Sovereign," in which, after some preliminary statements, they say — " We are and ever will be, with all faithful and true hearts, according to our bouden duties, ready to serve and obey your Majesty, and think ourselves most happy to spend our times and abilities to do your Majesty true and faithful service. What information hath been made out unto you, whereon your Attorney doth ground his letter from the report of the Bishop of Winchester, we know not ; this we know, that the true substance of the cause summarily is this, that it consisteth principally upon the construction of two acts of parliament: the one, 25 Ed. III., and the other, 25 Hen. VIII., whereof your Majesty's Judges, upon their oaths and according to their best knowledge and learning, are bound to de- liver their true understanding faithfully and uprightly ; and the case, being between two for private interest and inheritance, earnestly called for justice and expedition. We hold it therefore our duty to inform your Majesty that our oath is in these express words, ' that in case any letter come to us contrary to law, we do nothing 293 REIGN OF yAjVES /. [i6ior r' '*f illl therefore but certify your Majesty tlicrcof, and go forth to do the law notwithstanding^ the same.' " We have advisedly considered of the said letter of Mr. Attorney, and with one consent do hold the same to be contrary to law, and such as we could not yield to by our oaths. And knowing your Majesty's zeal to do justice to be most renowned, therefore we have, accord- ing to our oaths and duties, at the very day prefixed the last term, proceeded according to law ; and we shall ever pray to the Almighty for your Majesty in all honor, health, and happiness long to reign over us." The King, in a fury, summoned the Judges to appear before him at Whitehall, and, when they had entered his presence, declared that — *' Me approved of their letter neither in its matter nor manner of expression. He condemned them for their remissness in suffering counselors at the bar to deal in impertinent discussions about his prerogative, and told them they ought to have checked such sallies, nor suf- fered such insolence. With regard to their own busi- ness, he thouglit fit to acquaint thcni that deferring a hearing upon necessary reasons neither denied nor de- layed justice; it was rather a jKuise of necessary pru- dence, the Judges being bound to consult the King when the crown is concerned. As to the assertion that it was a point of priv^atc contest between subject and subject, this was wide of the truth, for the l>ishop who was the defendant pleaded for a commendam only in virtue of the royal prerogative. ' Finally,' said he, * let me tell you that you have been in a hurry where neither party required expedition, and you ought to have known that your letter is both couched indecently and fails in the form thereof " Upon this, all the twelve threw themselves on their knees and prayed for pardon. J^ut, although Coke ex- pressed deep sorrow for having failed in form, he still manfully contended that — "Obedience to his Majesty's command to stay pro- ceedings would have been a delay of justice, contrary to law, and contrary to the oaths of the Judges; more- over, as the matter had been managed, the prerogative was net concerned." King: " Forjudges of the law to [i6ior J go forth letter of the same >t yield to 7.C',l\ to do c, accord- :fixcd the shall ever ill honor, to appear J entered latter nor for their to deal in , and told 3, nor suf- )\vn busi- cferring a .1 nor dc- ;sary pru- the Kin;^ tion that DJcct and hop who n only in d he, ' let c neither e known d fails in on their Coke ex- , he still stay pro- ntrarv to more- -Togative lie law to f6i6.] EZ> WAIiD COKE. 393 pronounce whether my prerocjative is concerned or not is very preposterous management, and 1 recpiire 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 Ellcsmcrc : " With all 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 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 not 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, C. y. : " 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. G. : " 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 Com- mons assembled in parliament, who seek to encroach on the prerogative royal. 15y making this challenge, the Judges here assembled have highly outraged their char- acter. 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: "Mr. Attorney Gen- eral is right, and I should like to know what further can be said in defense of such conduct." Coke, C. J. : " It would not become me further to argue with your Majesty," Lord E/lesniere, 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 humbled, as effectually well as the other Judges, the following question was put to them : "In a case where the King believes his pre- rogative or interest concerned, and requires the Judge? to attend him for their advice, ought they not to stay J '■' U' >i K HtMHkMMMMIM i04 REIGN OF JAMES I, [i6[6 ^\ * X'i \ ?-i J '•■ i-' , proceedings till his Majesty has consulted them ?" All the Judges except Coke: "Yes! yes!! yes!!!" Coke, C. y.: "WlIKN Tir.C CASH IIAPPI'A'S, I SHALL DO THAT WHICH SHALT. KK FIT FOR A JUDGE TO DO." This simple and sublime answer abashed the Attorney 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 kta^p 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 constitution of England : " For I well know the true and ancient common law to be the most favorable to Kings of any law of the worUl, to which law I do advise you my Judges to apply your studies."' In spite of the offense thus given to the King, the Chief Justice might have been allowed long to retain his office if he would have sanctioned a job of Villiers, the new favorite, who, since the fall of the Earl of Somerset, had been centralizing all power and patronage in his own hands. The chief clerkship in the Court of King's liench, a sinecure then worth ,-^4000 a year, in the gift of the Chief Justice, was about to become vacant by the resignation of Sir John Roper, created Lord Teynham. It had been promised to the Earl of Somerset, and the object was to secure it for his successor, akiiough there was now a plan to apply the profits of it to make up the very inadequate salaries of the Judges.'' IJacon under- took, by fair or foul means, to bend the rer.olution of Coke, and, after a casual conversation with him, thus wrote to Villiers, pretending to have fully succeeded : — " As I was sitting by my Lortl Chief Justice, one of the Judges asked him whether Roper were de.id. lie said that for his part he knew not. Another of the Judges answered, ' It should concern you, my Lord, to knov/ it.' Wherefore he turned his speech to me, and ' Bacon's Works, ii. 517 ; Carte, iv. 35 ; Lives of Chancellors, ii. 249. * In the rei<;n of James I., the salary of the Chief Justice of liie Kind's Bench was only £22^ ig-r. (.ui. a yar, with ^^33 Gs. Si/, for liis circuit-, ; and the salary of the pui.^ne jud.:;es was only Z'iSS Gs. SJ. a year. But this was a great increase on the parsimony of former limes, for the yearly salary of the Chief Justice of the King's Bunch, in the reign of Edward I. was only 170 marks. [i6t6 1616.] ED WARD COKE. a9S Coke, DO THAT Utorncy of their ho Kiiiij nand to to suffer th these ititution ancient s of any you my !inj^, the -'tain his iors, the Jincrsct, c in his Kings the tjift t by "the :yn ham. and the ;h there -* up the I under- ition of im, thus eded : — , one of id. He • of the Lord, to me, and ii. 2J9. cuit^ ; aiitl ut this was y salary of I. was only said, * No, 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 a| accusers. Of this meeting we have an account of a letter from Bacon to the King; — "This morning, accon!ing to your Majesty's com- mands, we have i'ld my Lord Clief Justice of the Com- mon Pleas before us. It was livereil unto hirn that your Majesty's pleasure was, i '; it we should receive an account from him of the peiformanc of a command- ment of your Majesty ; ;id upon Ivi.i, which was that he should enter into a vie,',' and retraction of such novel- ties and errors, and offensive conceits, as were dispersed in his Reports ; that he had had good time to do it ; and we doubted not but he had used good endeavor in it, which we desired now in particular to receive from him. His speech was, that there vere of his Reports eleven hooks, vhat contained above 500 cases; that heretofore in other Reports much reverenced there had been found *^rrors which the wisdom of time had discovered ; and there- upon delivered to us the inclosed paper, wherein your Majesty may perceive that my Lord is an happy man that there 'v>iUd be no more errors in his 500 case* than in a few ca ■ jf Plowden. . . . " The Lord Chancellor, in the conclusion, signifi'^d to my Lord Coke your Majesty's commandment, that, i-ntil report I.o made and your pleasure therefore known he shall forbear sitting in Westminster, &c. ; not restr \in- ing, nevertheless, any other exercise of his place of Chief Justice in private." ' lie calls them " r.iits." Out of respect, they are cited as " ist Rej tt,' "ad Report," &c., without any oihcr designation. '■J*W^^ i, 11 'il ly ;ii '. t J 998 REIGN OF JAMES 1. [1616 The specific exceptions to the Reports, with his an- swers, are still extant, to prove the utter frivolity of the proceeding. The only thing that could be laid hold of, with any semblance of reason, was a foolish doctrine al- leged to have been laid down extra-judicially in ** Dr. Bonhavis Case" * which I have often heard quoted in parliament against the binding obligation of obnoxious statutes, " that the common law shall control acts of par- liament, and sometimes shall adjudge them to be merely void ; for where an act of parliament is against common right and reason, the common law shall control it, and adjudge it to be void." He attempted to justify this on former authorities: "In 8 Ed. III., Thomas Tregor's case, Herle saith, ' Some statutes arc 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 where- unto himself is a party for iniquum est aliqiieni siioe rei esse judiccmr But this rests on an implied exception ; and his other authorities resolve themselves into a ques- tion of construction, without countenancing the preten- sion that judges may repeal an act of parliament, or that the people have to obey only the laws which they ap- prove." This conundrum of Coke ought to have been laughed at, and not made the pretence for disgracing and ruining him. A few days after. Bacon, in another letter to the King, says, — " Now your Majesty seeth what he hath done, you can better judge of it than we can. If upon this probation, added to former matters, your Majesty think him fit for your service, we must, in all humbleness, subscribe to your Majesty, and acknowledge that neither his dis- placing, 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 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." 8 Rep. f. liSa. » Baron's Worlr.s, vi. 405. [i6i6 his an- y of the hold of, :trine al- in ''Dr. uoted in jnoxious s of par- c merely common )1 it, and y this on Tregor's ainst law ig, would led with an act of lannerof ea where- m Slice rei cccption ; (O a ques- e preten- t, or that they ap- ave been icing and the King, |, you can robation, im fit for Iscribe to his dis- •ing your le put in proceed gracious lification to him." k6i6.] EDWARD COKE. 399 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, but to have brought him in ques- tion 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 prerog- ative, and the settled jurisdiction of the High Commis- sion, the Star Chamber, and the Chancery, with the cut- ting observation, — " that he having in his nature not one part of those things which are popular in men. being neither civil, nor affable, nor mngnificcnt, he hath made himself popular by design only, in pulling down the gov- ernment." Lastly came the objectionable doctrines to be found in the Reports, " which, after three month's time, he had entirely failed to explain or 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 extremity against the offending Judge ; and lest he should relent, Bacon wrote him the following letter: — " May it please your excellent Majesty, " I send your Majesty a form of discharge for my Lord Coke from his place of Chief Justice of your Bench. " I send also a warrant to the Lord Chancellor for mak- ing forth a writ for a new Chief Justice, leaving a blank for the name to be supplied in your Majesty's presence ; for I never received your Majesty's express pleasure in it. " If your Majesty resolve of Montagu, as I conceive and wish, it is very material, as these times are, that your Majesty have some care that the Recorder succeeding be a temperate and discreet man, and assured to your Ma- jesty's service. •' God preserve your Majesty." * These proceedings seem to have excited considerable ' Bacon's Works, v. 127. ' Ibid 131. 30O REIGN OF JAMES /. [iCi6 vrj.«. Ijii r i m\ interest and sympathy in the public mind. Mr, Cham- berlain wrote to Sir Dudley Carlton, — " Lord Coke hath been called twice or thrice this term before the Chancellor and the King's learned council, to give 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 Sergeant Crew, Sergeant Montague, and Sergeant Finch, the Attorney-General, and the Solicitor, whereof the greater part, except the Solicitor,' are held no great men in law ; and withal, to find such coarse usage as not once to be offered to sit down, and so unrespcctive and uncivil carriage from the Lord Chancellor's men, that not one of them did move a hat or make any sign of regard to him ; whereof the Queen taking notice, his Majesty has since sent word that he would have him well used."" A few days after, the same correspondent writes, — " The Lord Coke hangs still in suspense, yet the Queen is said to stand firm for him, and to have been very earnest in his behalf, as like- wise the Princes." But on the 14th of November he adds, *' The Lord Coke is now quite off the hooks, and order given to send him a supersedeas from executing his place. The common speech is that four P's have over- thrown and put him down; that is, /'RIDE, /^ROIIIDI- TiONS, Pr.emunire, and Prerogative."" On the i6th of Nov. the supersedeas actually received the royal signature, and passed the great seal, being in these words, — " For certain causes now moving us, we will that you shall be no longer our Chief Justice to hold pleas before us, and we command you that you no longer interfere in that office, and by virtue of this presence we at once remove and exonerate you from the same." I wish much that Coke had completed his triumph, by receiving the intelligence with indifference, cr at least with composure. But there is extant a letter from Mr. John Castle, written three days after, containing this striking passage : ** A thunderbolt has fallen upon our Lord Coke in the King's Bench, which has overthrown him from the roots. The supersedeas was carried to him by Sir George Cop- ' Yelverton. * Nichol's Progresses of James, vol. iii. p. 194. * Ih. p. 226. [iCi6 Cham- lis term incil, to orts. It nted in crgcant jeneral, ept the ithal, to d to sit rom the move a -eof the nt word ys after, :e hangs firm for ", as like- nber he oks, and iting his 'e ovcr- ROIIIUI- received 3cing in Kit you ,s before ntcrfcre at once :i'.imph, at least rom Mr. ing this e in the c roots. 'Tc Cop- I). ]). 326. 1616.] ED WARD COKE. 3CT pin, who, at the prescntinff of it, saw that magnanirnity and supposed greatness of spirit to fall into a very nar- row room, for he received it with dejection and tears. Tremor et succcssio non cadiint in fortcni cl constantcm viriuji." ' This momentary weakness ought to be forgiven him, for he behaved with unflinching cournge while the charges were pending against him ; and he knew well 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 nor take a bribe." " We ouglit likewise to recollect, that although at first he was stunned by the blow, he soon rallied from it, in spite of sore domestic annoyances ; 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 con- stantly it were no disgrace to him. for he g/jcs away with a general applause and good opinion. And tlic King himself v/hen he told his resoluticMi at tlie council table to remove him, yet gave this char.icter, that he thouidit him no ways corrupt, but a good Justice — with so many other good v/ords, as if he meant to hang him with a silicon halter. Hitherto he bears himself Vvcll, but es- pecially towards his lady, without any complaint of her demeanor towards him ; though her own friends are grieved at it, and her father sent to him to know all the truth, and to show liim how much he disallowed her courses, having divided lu.-rself from him, and disfur- nished his house in Holborn and at Stoke of whatsoever was in them, and carried all the moveables and plate 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 collar 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 ' See DTsracH's Cli.aracUT of J.iines I., p. 125. * Hackclt's Life of Lmd Keeper Williams, ii. lao. 3oa REIGN OF JAMES I. [1616 fflil to their ancestor.' He 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 ; and such as had places under him, he has willed them to set down truly what they gained, and he will make it good to them, if they be willing to tarry and continue about him." ' The public were at no loss to discern the true cause of this dismissal when they knew that his successor, be- fore being appointed, was compelled to sign an agree- ment binding himself to dispose of the Chief Clerkship for the benefit of Buckingham, and when they saw two trustees for Buckingham admitted to the place as soon as the new Chief Justice was sworn in. Bacon now made a boast to the favorite of his good management : " I did cast myself, " says he in a letter to Bucking- ham, " that if your Lordship's deputies had come in by Sir E. Coke, who was tied (that is, under an agreement with Somerset), it would have been subject to some clamor from Somerset, and some question what was for- feited — by Somerset's attainder being but a felony — to the King; but now, they coming in from a new Chief Justice, all is without question or scruple." ' Nichol's Trogresses of James, vol. iii. 228. m \ M-« [i6i6 laughter thought his scr- is willed 1 he will irry and ue cause ssor, be- in agrce- llcrkship saw two ; as soon ;on now gement : Bucking- me in by jreement to sonr^e was for- lony — to w Chief CHAPTER IX. CONTINUATION OF THE LIFE OF SIR EDWARD COKE TILL HE WAS SENT PRISONER TO THE TOWER. COKE was supposed by mankind and by himself to be disgraced and ruined. Nevertheless his story is more interesting, and he added more to his own fame, as well as conferred greater benefits on his country, than if he had quietly continued to go through the routine of his judicial duties till his facul- ties decayed. Bacon's vengeance was not yet by any means satiated. Having artfully brought about the fall of his rival, he wrote him a most insulting letter by way of consolation and advice ;' he still persecuted him on the absurd charge of attacking the royal prerogative in his Re- ports; he appointed a commission of the Judges to re- vise them ;' and he meditated an information against him in the Star Chamber for malversation in office, in the hope of a heavy fine being imposed upon him. These spiteful designs seemed now easily within his power, for he had reached the summit of his ambition ; the great seal was his own, and he expected the King and Buckingham to continue submissive to his will. But Coke's energy and integrity triumphed. At the age of sixty-six, from exercise and temperance his health v/as unimpaired, and his mental faculties seemed to be- come more elastic. With malicious pleasure he discov- ered that the new Chancellor was giddy by his elevation; and he sanguinely hoped that, from his reckless and unprincipled proceedings, before long an opportunity ' Bacon's Works, v. 403 ; Lives of the Chancellors, ii. 358 • Bacon's Works, vi. 4og. '^m 304 REIGN OF JAMES I. [16x7 .If lii! „> '1 would occur of precipitatiiif^ him from his pride of place into the depth of humiliation. The cx-Chicf Justice, a fcv/ \veeks after his dismissal, contrived to have an intorvicv vntli the King, and was rather graciously receive. 1 by him ; but he knew that he had no chance of bcin;?; u^.-toreil to .;k v;er except by the favor of Buckinghrmt M'ho:r. he ViatI :o iceply offended. WiUi great dcxtciityhe laid a pha, which had very nearly > acceedovl, bef.re Lord Chancellor Bacon was warm in the marblo chair. Lad}' llatton, althou;:jh she hated her aged husband, and was constantly kecpuig h''ni ii ho.' water, occasion- ally lived with liim, and had brought him a daughter, called "The Lady Frances," onh' fourteen years old, who was a very ricli heir-, ss, a . her uiother's possessions were entailed upon hor, and she expected a share of the immense wealth of her father. This little girl was pretty to boot ; and she had attracted the notice of Buckingham's elder brother. Sir John Villiers, who was nearly thrice her a';c, and was exceedingly poor. Sir Ed- ward Coke, while (Jliief Justice, had scorned the idea of such a match ; bui: it was now suggested to him by Secretary Winwood as the certain and the only means of restoring him to fivor at Court. Soon after Bacon's elevation, the King went to Scot- land, attended by Buckingham, to pay a long-promised visit to his countrymen ; and the Chancellor being left behind as reprjsentativc of the executive government, played "fantastic tricks" which were not expected from a philosopher in the enjoyment of supreme powei Winwood, the Secretary of State, his colleague, he treated with as little ceremony as he might have done a junior clerk or messenger belonging to the Council Ofiice. There is no such strong bond of union as a common hatred of a third person, and the insulteil statesman suggested to the ex-Chief Justice thrt the favorite might easily be regained by matching the heir- ess with his brother. This is the least reputable passage in the whole life of Sir Edward Coke. He thought of nothing but of re- covering himself from disgrace, and humbling an enemy: therefore he jumped at the proposal, and, without c(>a- [i6i7 c of place dismissal, I, and was vv that he ipt by the offended. had very iacon was husband, occasion- daughter, years old, osscssions I share of little girl ; notice of ;, who vvas •. Sir Ed- he idea of o him by nly means It to Scot- promised )cing' left vcrnment, ctcd from ne powci eague, he Lve done a e Council nion as a i insulted thc't the the hcir- ole life of but of re- in enemy: hout con- 1617.] JSD IVARD COKE. 30s suiting Lady Ilatton, or thinking for a moment of the inclinations of the young lady, he went to Sir John Vil- liers and offered him his daughter, with all her fortune and expectations, expressing high satisfaction at the thought of an alliance with so distinguished a famil}'. Sir John, as may be supposed, professed a never-dying attachment to the Lady Frances, and said that, " al- though he would have been well pleased to have taken her in her smock, he should be glad, by way of curiosit)-, to know how much could be assured by niarriage settle- ment upon her and her issue ?'* Sir Edward, with some reluctance, came to particulars, which were declared to be satisfactory, and the match was considered as made. But when the matter was broken to Lady Hatton she was in a frantic rage; not so much because she disap- proved of Sir John Villicrs for her son-in-law, as that such an important arrangement had been made in the family without her opinion being previously asked upon it. She reproached Sir Edward the more bitterly on account of his ingratitude for her recent services ; as, notwithstanding occasional forwardness, she had been kind to him in his troubles.' When the first burst of her resentment had passed over she appeared more calm, but this was from having secretly formed a resolution to carry off her daughter and to marry her to another. The same night, Sir Edward still keeping up his habit of going to bed at nine i)'clock, — soon after ten she sallied forthwith the Lady i'raiKes from Hatton Mouse, riolborn. They entered a coach which was waiting for them at a little distance, and, traveling by unfrequented and circuitous roads, next u^orning they arrived at a house of the Earl of Argyle at Oatlands, then rented by Sir Etlmund Withipole, their cousin. There they were shut up, in the hope that there could be no trace of the place of their concealment. ' Cliamberlain, in a letter dauxl 22d of June, 1616, says, " The Lady I latum siooil \i\ him in ^i\'.vi sicid, hotli in soliciting at the council table, wlieicin slic h.itli done hoisolf groat honor, but especially in refusing to sever her V\\uso from hi.^, as she was moved to do, but resolving and pub- lishing that she would run tl\e same fortune with him." She had even quarriUed witli both llieir Majesties for his sake. On the 6th of July, Chamberlain writes, " His lady hath likewise carried herself very indis- creetly, of late, towardi the Queen, whereby ^he hath lost her favor and is forbidden the court — as also the King's." 1—20. 3o6 REIGN OF JAMES I. [1617, ! iH( Nil t 'V. < t< i lit While they lay hid, Lady Hatton not only did every thinj; possible to prejudice her daughter ajjjainst Sir John Villiers, but offered her in marriage to the young Earl of Oxford, and actually showed her a foiL^cd letter, purporting to come from that nobleman, which assever- ated that he was deeply attached to her, and that he aspiied to her hand. Meanwhile Sir Edwanl Coke, having ascertained the retreat of the fugitives, applied to the Privy Council for a warrant to search for his daughter; and, as there was some difficulty in obtaining it, he resolved to take the law into his own hand. Accordingly the ex-Chief Jus- tice of England mustered a band of armed men, con- sisting of his sons, his ilepiiulents, and his servants ; and, himself putting on a breast-plate, with a sword by his side, and pistols at his saldle bow, he marched at their head upon Oatlands. When they arrived there they found the gate leading to the house bolted and bar- ricaded. This they forced open without difficulty ; but the outer door of the house was so secured as long to defy all their efforts to gain admission. The ex-Chief Justice repeatedly demanded his child in the King's name, and laid down for law, that " if death should en- sue, it would be justifiable homicide In him, but murder in those who opposed him." One of tin; party, gaining entrance by a window, hi in all the rest ; but still there were several other doors to be broken open. At last Sir Edward found the object of his pursuit secreted in a sinnll closet, and, without stopping to parley, lest there should be a rescue, he seized his daughter, tore her from her mother, and, placing her behind her brother, rode off v/ith her to his house at Stoke Pogis in Buck- inghamshire. There he secured her in an upper cham- ber, of which he himself kept the key. He then wrote the following letter to Buckingham : — • Right Honorable, " After my wife. Sir Edmund Withipole and the lady his wife, and their confederates, to prevent this match oetween Sir John Villiers and my daughter Frances, had conveyed away my dearest daughter out of my house, and in most secret manner to a house near Oatland, which Sir Edmund Withipole had taken for the summer :|i [i6i7. 1617.] ED WARD COKE. 307 lid every ainst Sir \c \oung cd letter, I assever- that he lined the luncil for there was take the !hief Jus- nen, cou- nts ; and, rd by his ,1 at tlirir lere they and bar- idty ; but 3 long to ex-Chief le King's hould en- it murder , gaining but still pen. At secreted ley, lest tore her brother, in Buck- )er cham- cn wrote the lady is match nces, had ly house, Oatland, summer of my Lord Argylc, T, by God's wonderful providence finding where she was, together with my sons and ordinary attendants, did break open two doors, and re- covered my daughter, which I did for these causes:— First, and principally, lest his Majesty should think I was of confederacy with my wife in conveying her away, or charge me with want of government in my household in suffering her to be carried away after I had engaged myself to his Majesty for the furtherance of this match. 2, For that I demanded my child of Sir Edmund and his wife, and they denied to deliver her to me. And yet for this warrant is given to sue me in his Majesty's name in the Star Chamber with all expedition, which though I fear not well to defend, yet it will be a great vexation. But I have full cause to bring all the con- federates into the Star Chamber, for conveying away my child out of my house." He subjoins an enumeration of the vast estates to be settled upon his daughter if she were to be married to Sir John. But the Lord Chancellor was still determined that the match should be broken off. He strongly encouraged Lady Hatton in her resistance to it ; and he wrote letters to Scotland strenuously dissuading it. Thus he addressed Buckingham : — " It seemeth that Secretary Winwood hath officiously busied himself to make a match between your brother and Sir Edward Coke's daughter, and, as we hear, he does it more to make a faction than out of any great affection for your Lordship. It is true he hath the con- sent of Sir Edward Coke, as we hear, upon reasonable conditions for your brother, and yet no better than, without question, may be found in some other matches. But the mother's consent is not had, nor the ycung gentlewoman's, who expects a grf.at fortune from her mother, which, without her cowsent, is endangered. This match, out of my faith and freedom towards your Lordship, I hold very inconvenient both for yonr brother and yoursd*". First, he shall marry into a dis- graced house, which in reason of state is never held good. Next, he shall marry into a troubled house of man and wife, which in religion and Christian discretion / 3o8 REIGN OF yAMES I. [1617. m is disliked. Thirdly, your Lordship will go near to lose all such your friends as arc adverse to Sir Edward Coke, myself only excepted, who, out of a pure love and thank- fulness, shall ever be firm to you. And lastly, believe it will greatly distract the King's service. . . , There- fore my advice is, that the marriage be not pressed or proceeded in without the consent of both parents, and so break it altogether." Ho tried to alarm the King by the notion that the general disposition then evinced to submit to his Maj- esty's prerogative would be disturbed by any show of favor to the ex-Chief Justice : — " All mutinous spirits grow to be a little poor, and to draw in their horns ; and not less from your Majc-ty's disauthorizing the man I speak of. Now, then, I reasonably doubt that, if there be but an opinion of his coming in with the strength of such an alliance, it will give a turn and relapse in men's minds, into the former state of things, hardly to be holpen, to the great weak- ening of your Majesty's service." A communication with Edinburgh, which can now be made in a few minutes, then required many days; and before Bacon had received an an.swer to these letters he had instructed Yelverton, the Attorney General, to commence a prosecution in the Star Chamber against Sir Edward Coke, for the riot at Oatlands, whicli was represented as amounting almost to a levying of war against the King in his realm. On the other hand, Lady Hatton made another at- tempt forcibly to get possession of her daughter. There- upon proceedings were instituted against her by Sir Edward Coke, and he actually had her put under re- straint upon the following charges : — " I. For conveying away her daughter claui tt secrete*. 2. For endeavoring to bind her to my Lord Oxford witho-t her father's consent. 3. For counterfeiting a letter of my Lord of Oxford offering her marriage. 4. For plotting to surprise her daughter and take her away by force, to the breach of the King's peace, and for that purpose assembling a body of desperate fellows, whereof tli consequences might have been dangerous." She answered — " i. I had cause to provide for her quiet, li*i f;i [i6i7. car to lose vard Coke, ind thank- , believe it . The re- pressed or rents, and 1 that the o his Maj- y show of •or, and to Majesty's , then, I lion of his ice, it will :he former leat weak- en now be lays ; and letters he cneral, to r against vhich was ng of war lothcr at- There- cr by Sir under re- ct secrete'. d Oxford a 4- her away (1 for that , whereof iLis." She ler quiet, 1617.1 ED IVAA'n COKE. 309 rfeitin<^ TKige. Secretary Winwood threatening^ slu; should be married from me in spite of my teeth, and Sir Edward Coke in- tending to bestow her against her liking; whereupon, she asking me for hel[), 1 placed her at my cousin-ger- inan's house a few days for her health and quiet. 2. My (laughter tempted by her father's threats and ill-usage, and pressing me to find a remedy, I did compassionate her coiulilion, and bethought myself of this contract with my Lord of Oxford, if so she liked, and therefore I gave it her to peruse and consider by herself; she liked it, cheerfully writ it out with her own hand, subscribed it, and returned it to me. 3. The end justifies — at least excuses — the fact ; for it was only to hold up my daugh- ter's mind to her own choice, that she might with the more constancy endure her imprisonment — having this only antidote to resist the poison — no pi ' ;on or speech being admittt;d to her but such as spoke Sir John Vil- lar's language. 4. Be it that I had some tall fellows assembled to such an end, and that something was in- tended, who intended this? — the mother! And where- fore? Because she was unnaturally and barbarously secluded from her daughter, and her daughter forced against her will, contrary to her vows and liking, to the will of him she disliked." She then goos on to describe, by way of recrimination, " Sir Edward C'oke's most notorious riot, committed at my Lord of Argyle's house, where, without constable or warrant, well weaponed, he took down the doors of the gate-house and of the house itself, and tore the daugh- ter in that barbarous manner from her mother —justi- fying it for good law ; a word for the encouragement of all notorious and rebellious malefactors from him who had been a Chief Justice, and reputed the oracle of the 1»t aw. Now Bacon discovered the fatal mistake he had com- mitted in opposing the match, and trembled lest the great seal should at o'Kx. be transferred from hun to Sir Ed- ward Coke. Buckingham wrote to him : — "In this business of my brother's, that you over- trouble yourself with, I understand from London, by some of my friends, that you have carried yourself with much scorn and neglect both towards mys If and my A no /a:/GX JAMF.S r. [1617. friends, which, if it proves Iruc. I blame not you but myself." And the Kiiiy;'s ian^ua^e to him was still more alarm- i"^: — " Whereas you talk of the riot and violence committed by Sir Edward CoUe, wo wonder you make no mention of the riot and violence of them that stole away his dau^diter, which was the first ;j[round of all that noi.,e." Bacon's only chance of e.';ca[)in<4 shipwreck was at onco to put about and go upon the contrary tack. Accord- ingly h^.' stopped the pror.jculion i:i the Star Chamber against Sir Edward Coke; he directed that Lady llat- ton should be kept in strict confinement ; he declared himself a warm friend to thrniatch of the Lady Frances with Sir John Villicrs; and he contrived, through Lady Coinpton, the mother of the Villierses, to induce Lady Hatton to consent to it. The inclinations of the young lady herself had been as little consulted as if she had been a Queen of Spain about to be m rried under the auspices of a Louis I'hillippe counseled by a Ciuizot;' and :is she had before copied and signed the contract with Lord Oxford at tlu; command of her mother, she nexL copied and signed the following letter to her mother at the command of her lather : — " j\hidam, " I must now humbly desire your patience in giving me leave to declare m}'sclf to you, which is, that without your allowance and liking, all the world shall never make me entangle or tie myself. JUit now, by my father's es- pecial commandment, I obey him in presenting to you my humble duty in a tedious letter, which is to know your Ladyshi[)'s plea;;ure, not as a thing I desire ; but I resolve to be wliolly ruled by my father and yourself, knowing your judgmenl.. to be such that I tiKiy well rely upon, and hoping that conscience ami the natural ailec- ' WritiL'ii before the revolulion of ^cbnl.^l•y, 1S43. ,\flur llic ini^lorlunes which have Ijclalleii the Kin^ an: f i'iiiiiil ! It 11 I I I lilt!- ill III '!l'l !!'!! 3xa REIGN OF JAMES I. [1617. Sii Edward Coke, however, by no means derived from this alliance the advantage he had anticipated. He was restored to the Privy Council, but he received no judi- cial promotion ; and he had the mortification to see his rival. Bacon, I)y base servility, restored to the entire con- fidence both of the King and the favorite. What prob- ably galKd him still more was, that, very soon after- wards, Lady Ilatton was set at liberty. Abusing and ridiculinij her husband, she became the delight of the whole Court ; — insomuch that the King and Queen ac- cepted a grand entertainment from her, at Hatton House, in Holborn, from which her husband was ex- cluded.' It is sad to relate, that the match — mercenary on the one side, constrained on the other — turned out most in- auspiciously. Sir John Villiers was created Viscount Parbeck ; but, after much dissension between him and his wife, she eloped from him with Sir Robert Howard, and, after traveling abroad in man's attire, died young, leaving a son, who, on the ground of illegitimacy, was not allowed to inherit the estate and honors of her husband. The next four years of Coke's life were passed very ingloriously. Bacon still enjoyed the lustre and the profits of the office of Lord Chancellor, while he him- self, regarded with suspicion, was condemned to the ob- scure and i;ratuitous labor of the Council table, corres- ponding pretty nearly to that of our " Judicial Com- mittee."'' He likewise sat occasionally in the Star Chamber; and he consented to act in several commis- ' " The expectancy of Sir Edward's rising is much abated by reason of his lady's libuity, wlio was brous^lU in j^reat honor to E.-.elor House by my Lord of Buckingliam, from Sir Wiilinm CravL>n's, whither she had been reman '.cd presented by his Lordship to the King, received gracious usage, recontiki! to her daugliter by iiis Majesty, and lier house at llolborn enlightened by his presence at dinner, where there was a royal feast ; and, to make it more absolutely her own, express commandment given by her Ladyship that neither Sir Edward tJolvC, nor any of his servants should be admilteil." — Strafford's Letters and Dispatcltes, vol. i. j). 5. \\ c have not any circumstantial account of the honors conferred on the Lady Hatton on this occasion in her husband's absence ; but we arc in- formed that the year before, when the King dined at Wirbledon with her falhei, Lord Exeter, "the Lady ILatton was there, and well graced, for tha King kissed her twice." — Xukol's Progresses of James, vol. iii. p. 177 " He was resworn a Privy Councillor, Sept. 1617. [i6i7. 1031.] ED WARD COKE. 313 ved from He was no judi- o see his itire con- liat prob- on after- sing and it of the |ueen ac- Hatton was ex- ry on the most in- Viscount him and Howard, d young, lacy, was s of her 5sed very and the he him- o the ob- c, corres- ial Com- the Star commis- easoa of his by my Lord 11 rcmuii led , rccoiu ik'd glUencd by ;ike il more dy.ihip that dmittcd." — rred on the wc are in- on with her iced, ibr Ui« p. 177 sions issued by the Government.' The Lord Chancellor tried to keep him in good humor by warm thanks for his exertions, and by vague promises that he should have the Lord Treasurer's place, or some other great preferment. " If Sir Edward Coke," says he in a letter to Buckingham, " continue sick or keep in, I fear his Majesty's service will languish too in those things which concern the law." ' Again, " Sir Edward Coke keeps in still, and we have miss of him."' Afterwards, " Sir Ed- ward Coke was at Friday's hearing, but in his nightcap ; and complained to me he was mnbnlcnt and not current. I would be sorry he should fail us in this cause : there- fore I desired his Majesty to signify to him, taking knowledge of some light indisposition of his, how much he should think his service disadvantaged if he should be at any day away." * A reason assigned for the sus- pension of Council table business was, " Sir Edward Coke comes not yet abroad." ' Sitting in the Star Chamber, he was particularly zealous in supporting a prosecution against certain Dutch merchanis charged with the crime of exporting the coin; he voted that they should be fined ^150,000 for an offense which was then considered " enormous, as going to the dispoverishment of the realm"' Li two cases, which excited much interest at the time, his se- verity was supposed to have been sharpened by the recollection of personal injuries. It may be recollected how the Lord Treasurer Suffolk had lectured hiin for his presumption in making his coaclunan ride bare-headed before him. Thi same Lord Treasurer had himself fallen into disgrace, and was now prosecuted in the Star Chamber, along with his lady, for corrupt dealings in a branch of the publ'c revmiue. " Sir Edward presiding vvhon sentence was to be pronounced, he led the way in a long and learned speech, showmg how often Treasurers ' For the banishment of Jesuits and seminary priests (Uyn\er's Fanlera, xvi. 93); for ncj^ctiatinj; a treaty bet.veen the Dutch and Entjlish mer- chr.nts, touchiny; their trade to the East Inches (Ibid. 170); for iniiuirin_!» into lines betoiiLjing to the Crown in regard of manorial ikies (Ibid. 224); and for examining into tlie prevalent olVcnses of transporting unluance into foreign pans (Ibid. 273). ^ Bacon's Works, v. 511. • Ibl I. vi. 214. * Il)id. vi. 230. ' Ibid. 230, 239. •Stepcn'b Introduction to Bacon's, Letters, p. 46. "v , ': ! ,' I, t ! 1 I • 1 ■'. - '■ ; ■ m i ■( ' f ,j : 3>4 REIGN OF y. ES I. [1620. had pillaged the King and the people ; and, trying to prove that by the Earl and Countess the King had lost ;^SO,000, he proposed that they should be fined double that sum, and imprisoned till the fine was paid : on the suggestion of Lord Chief Justice Hobart, it was re- duced to ;^30,ooo, for which they were committed to the Tower." ' Coke was most vindictive against Yelverton, the At- torney General, who had filed the information against him in the Star Chamber for the forcible rescue of his daughter. This distinguished lawyer, who had prose- cuted so many others, having incurred the displeasure of Buckingham, was himself prosecuted in the Star Chamber, on the pretense that he had inserted some clauses in a charter to the City of London, for whicli he had no warrant from the King, Sir Edward Coke, whose place it was to begin, after a long and bitter b'peech against him, proposed that he should be fined ;{^6,ooo, be dismissed from his office, and be imprisoned in the Tower during the King's pleasure. Upon the in- tercession of other members of the Court, the fine was moderated to ^^"4,000, and the rest of the sentence was entirely submitted to his Majesty." The Lord Treasurer's office being put into commis- sion. Coke was for some time a Lord of the Treasury along with Archbishop Abbott," and he seemed to be coming into greater favor, — as if the King had been about to act upon the suggestion that he might be use- ful in the repair of the revenue. Bacon gave the follow- ing astute advice, — "As I think it were good his hopes were at an end in some kind, so I could wish they were raised in some other."* Accordingly, his opinion was asked about the pro- priety of calling a new parliament, after parliaments had been disused for six whole years.' We are told that, he was in most of the confidential conferences of state ovi the management of the elections," although he could ' Wilson's Life of King James I. p. 706. * Stepiicn's Introduction, p. 17. ColvO escaped the disgrace of llie exe- cution of Sir Walter Raleigh, and probably could have made no cflbrt to save liim. ^ Devon's Pell Records, temp. Jac, I. * Bacon's Works, v. 3S1. » Ibid. 531, • Ibid. 536. [l620. I62I.] EDWARD COKE. .315 trying to had lost d double . : on the was re- litted to , the At- 1 against ;uc of his id prose- splcasure the Star ted some which he rd Coke, nd bitter be fined nprisoned on the in- i fine was tence was ) commis- Treasury led to be had been be usc- c follow- lis hopes tliey were the pro- ncnts had d that, he state ovi he could e of the exe- no cflbil to id. 536. scarcely have been consulted when the proclamation was settled in which the King warned his faithful sabjectj not to return to the House of Commons " bankrupts nor necessitous persons, who may desire long parlia- ments for their private protection ; nor yet curious and ivrangling lawyers, zvJio may seek reputation by stirrinq needless questiojisy ' Coke himself was elected for the borough of Liskeard in Cornwall ; and there seemed a prospect of his cor- dially co-operating with the Government. He might have thought that this course would not be inconsistent with his independence or his patriotisn\, for the Lord Chancellor had declared that the elections wcie to be carried on " without packing, or degenerating arts, but rather according to true policy."' There was. however, too much reciprocal jealousy rankling in the minds of the rivals to render it possible that they should ever cordially act together, although terms of decent courtesy had for some time been es- tablished betweiMi them. Coke's env}'' was now much excited by the immc nse. glory which Bacon acquired by the publication of chc Novum Organum. I laving received a copy from the author, he wrote in the fly-leaf, " Edw. C. ex dono iVuc- toris," and he vented his spleen in the following sarcastic lines, which he subjoined : — " A tutor! C<»!s!linm. Instauravc paras VLtcrum iloLiimLMita sophorum, In '"ara leges, juslitiamquc prius." In the title-page, which bore the device of a ship pass- ing under a ];ross of sail through the pillars of Hercules, he marked his contempt of all philosophical speculations by adding a distich in English : "It deserves not to be ivsid in schooles, But to be freii;hted in llie Ship of Foots"* Just as Parliament was about to assemble, a vacancy occurred in the high offices to wliich Coke aspired, aud he might have been appeased. Jkit Bacon v/as so much intoxicated by his jiolitical ascendancy and his literary ' I Pari. Hist. I169. * Daeon's Works, v. 531. "Alluding to Sebastian Brand's famous " SitYP oK Foi. vs." — 'V\\\% pre- sentation copy of the Novum Organum i'^ slill preserved at llolkliam. ill t < m iii ! I! iiiPI 3»6 REIGN OF JAMES I. [i6ai. fame, that he thought he might now safely despise the power of his rival, and slight him with impunity. Ac- cordingly, Montagu, Coke's successor as Chief Justice of the King's Bench, was promoted to be Lord Treas- urer, and raised to the peerage; and the Chief Justice- ship of the King's Bench, instead of being restored to him who had held it with such lustre, was conferred upon an obscure lawyer called Sir James Ley.' The ex- Chief Justice was highly exasperated, and he resolved to devote himself to revenge. He cared little for the office of High Steward of the University of Cambridge, which had lately been conferred upon him ; and patriot- ism was his only resource. It should be related of him, however, that, although he had no taste for polite literature or philosophy, he did not waste his leisure in idleness, but took delight in juridical studies. After his dismission from the office of Chief Justice, he prepared the 12th and 13th Parts of his Reports, which, as they contained a good deal against the High Commission Court, and against the King's power to issue proclamations altering the law of the land, were not published in his lifetime. He then oegan his great work — called his " First Institute" — the Commentary on Littleton, — which may be considered the " Body of the Common Law of England." This was the solace of his existence — for he still lived sep- arate from his wife — and, amidst the distractiot\ of poli- tics, no day passed over him without his indulging in an excrcitation to illustrate "ViUcnaflc, (Continual ^/laim, (follat- zx^\ ^aqr^anty, or some other such delightful subject. The meeting of parliament, on the 30th of January, 1 62 1, may be considered the commencement of the great movement which, exactly twenty-eight years after- wards, led to the decapitation of an English sovereign under a judicial sentence pronounced by his subjects. The Puritans had been gradually gaining strength, and were returned in considerable nu'iibers to the new House of Commons. Sir Edward Coke, v/ho had hitherto pro- fessed high-Church principles, placed himself at their head, and, in struggling for the redress of grievances, he was supported by men of all parties except the imme- ' Urig. Jur. 104. BliMf l62I.] ED WARD COKE. 317 diate retainers of the Court. The irregular modes re- sorted to for the purpose of raising money, particularly by the grant of inonopolies, in violation of the engage- ments contracted by the Crown at the conclusion of the reign of Oueen Elizabeth, had filled the whole nation with discontent. Sir Edward Coke, to establish his popularity, begin his operations by moving an address to the King ** for the better execution of the laws against Jesuits, Seminary Priests, and Popish Recusants," which was carried al- most unanimously. The Upper Mouse having concurred in the address, it was read to James by Lord Bacon. This was the last time of his officiating as Chancellor in the royal presence. His destruction was at hand, and all the proceedings against him were conducted or prompted by his revenge- ful rival. A motion being made by Mr. Secretary Cal- vert for a supply. Sir Edward Coke moved, as an amend- ment, " That supply and grievances should be referred together to a committee of the whole Mouse." We have the following abstract of his speech : — " ' Virtus silcrc in coiivivio, vitiiuii in coiisilio.' I joy that all are bent witii alacrity against the enemies of God and us, — Jesuits, Seminaries, and Popish Catholics. The indulgence shown to them was a grievance com- plained of in the 8th year of this reign. I and Popham were thirty days in examination of the Gunpowder Plot at the Tower. The root of it was out of the countries belonging to the Pope, and Vaux repented him that by delay he had failed. God then, and in 1588, delivered us for religion's sr.ke. Let us guard our privileges, for the prixilege of the Mouse regard the whole kingdom ; lilce -A circle, which ends where it began. Take heed tliat we lose not our liberties by petitioning for liberty to treat of grievances. In Edward ML's time, to treat of grievances a* parliament was held yearly. There has been no parliament now for near seven years, and pro- clamations are substituted for statutes. But no procla- mation is of force to alter the law ; and, where ihey are at vari.mcc, the law is to be obeyed and not the procla- mation.' No doubt a due supply ought to be gn.nted. ' Camden says, " Edward Coke bore himseU" this day with the ttuest pa- liNlj I' i B?Ui-t I I It' t \ 1 I i ! ■ 1 : 1 ' 1 f r:i:;n: i :H,;1 :| 318 REIGN OF JAMES I. [1621. The King's ordinary charge and expenses are much about one ; the extraordinary are ever borne by the sub- ject ; the King shall be no beggar. If all the corn be brought to the right mill, I will venture my whole estate that the King's will defray his ordinary charges. But let us consider grievances, and supply one with another. The remedying of grievances will encourage the House, and enable us to increase the supply." The amendment was carried without a division, and it was resolved to go upon grievances and supply that afternoon. Coke was chosen chairman of the com- mittee, and immediately began with Sir Giles Mom- pesson and the monopolists,' He gained much applause, a few days after, from his treatment of a ilippant and irreverent speech against a Bill " for the better keeping of the Sabbath'" made by a young member of the nj*nc of Sheppard, who said — " Every one knowcth that Dies Sabbat i is Saturday, so that you would forbid dancing on Saturday ; but to forbid dancing on Sunday is in the face of the King's ' Book of Sports ;' and King David says, ' Let us praise God in a dance.' This being a point of divinity, let us leave it to divines; and since King David and King James both bid us dance, let us not make a statute against dancing. He that preferred this bill is a dis- turber of the peace and a Puritan." Sir Edivard Coke : " Whatsoever hindereth the ob- servation of the Sabbath is against the Scripture. It is in religion as in other things : if a man goes too much on the right hand, he goes to superstition ; if too much on the left, to profaneness and atheism ; and take away reverence, you shall never have obedience. If it be per- mitted thus to speak against such as prefer bills, we should have none preferred." A motion for Mr. Sheppard's expulsion was then car- ried, " and, being called to the bar, on his knees he heard his sentence, ' That the House doth remove him from th service of this House as being unworthy to be a member thereof.'" triotism, and taught that no proclamation was of weight against parlia* ment." — Camden's Annals of James /., p. 67, ' Pari. Hist. 1175-1188. »lbid. II94. t l62I.] ED WARD COKE. 319 The ex-Chief Justice worked diligently in his com- mittee of grievances, and prepared a report exposing the illegal grants of monopolies to Sir Giles Mompcsson, to Sir Edward Villiers, the brother of the favorite, and to many others, by which the public had been cruelly defrauded and oppressed. In answer to the argument of the courtiers that these grants were all within the scope of the King's prerogative, he said — *' The King hath indisputable prerogative, as to make war; but there are things indisputably beyond his pre- rogative, as to grant monopolies. Nothing the less, monopolies arc now grown like hydras' heads ; they grow up as fast as they are cut off. Monopolies are granted de vcnto ct sole ; of which we have an example in the patent that in the counties of Devon and Corn- wall none shall dry pilchards in the open air save the patentee, or those by him duly authorized. The mo- nopolist who engrosseth to himself what should be free to all men is as bad as the depopuiator, who turns all out of doors, and keeps none but a shepherd and his dog; and while they ruin others they never thrive or prosper, but are like the alchymist, with whom oinne vertitnr in fuvtum''^ The report was agreed to, and Sir Edward Coke was directed to go to the bar of the Upper Mouse to com- municate a copy of it to their Lordships, and to ask a conference, in which they might be called upon to con- cur in it. A very striking scene was exhibited when Bacon came from the woolsack to the bar of the House of Lords to receive the messengers, for he knew that another com- mittee of the Commons was sitting to investigate charges of judicial corruption against himself, and he did not know but that they might now be come to im- peach him, and to pray that he might be committed to to the Tower. He was greatly relieved when the true purport of the message was disclosed, and he gladly an- nounced that the conference was agreed to.' But the respite was short. The other committee was going on most vigorously and effectively with the in- ' I Pad. Hist. 1 195. •See Livfis of the Chancellors, ii. 388 ; i Pari. Hist. II99. 3s»<> JtEIGN OF yAMES I. [1621. i.' I '■ ( vostigation of the Lord Chancellor's delinquency. Coke, out of decency, declined being the chairman of it ; but he guided all its proceedings, and the task of dr;iwing up the charges arising out of the bribes received from Aubrey and Egcrton was confided to him along with Sir Dudley Digges, Sir Robert Phillips, and Mr. Noy, after- wards the author of the writ of ship-money,- -then a factious demagogue.' Bacon had very nearly eluded the blow by inducing the King to send a message to the House of Commons, " that if this accusation could be proved, his l^Tajesty would punish the party accused to the full," and that he would grant a commission under the great seal to ex- amine all upon oath that cnild speak in this business. The Commons were about to return an answer agreeing to this proposal, when Sir Edward Coke begged they wo'dd take heed not to hinder the manner of their par- liamentary proceeding against a great delinquent. A resoluti^'ui was then adopted to prosecute the case before the Lords' The impeachment being voted, it was intended that Sir Edward Coke, as manager, should conduct it ; but he lost this gratification by the plea of guilty, and he was obliged to be satisfied with attending the Speaker to the bar of the House of Lords when judgment was to be prayed, and hearing the Chief Justice of the King's l^Mich, by order of the Lords, pronounce these words, which I fear caused an ungenerous thrill of pleasure in his bosom : — " Francis Lord Viscount St. Albans having confessed the crimes and misdemeanors whereof he was im- peached, this House doth adjudge that he pay a fine to the King of ;^40,ooo, — that he be imprisoned in the Tower of London during the King's pleasure, — that he be forever incapable of any office, place, or employment in the state or commonwealth, — and that he never sit in parliament, or come within the verge of the court."* The part which Coke had hitherto taken in this affair was accordin:^ to the rules of law and justice, and the eagerness with which he had discharged his duty might ' s St. Tr. 1087. ' I Pari. Hist. 1228. *2 St. Tr. 1037-II19. Bacon, on account of illness, was rwt present. [l62I. icy. Coke, of it ; but of drawing jivcd from ng with Sir Noy, afLcr- y, — then a >y inducing Commons, lis Majesty iiid that he seal to ex- s business, jr agreeing :gged they f their par- iquent. A case before ;ndcd that ict it ; but Ity, and he :ie Speaker lent was to the King's lese words, pleasure in I confessed e was im- \y a fine to lied in the :', — that he Tiployment never sit in :ourt. n this affair :e, and the duty might I. Hist. 1228. wt present. l6:?v.1 'A i. M, I x I ! ■ ■ ' ( I • I V I •, < ■ I • ■'" I -. . . lu '■ .rr. .i;t; 1 ,.•♦ .1 ::. !,;.. ■,'. :r ..' ^^^ ^^. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 128 |Z5 U, 1^ uw 2.2 1.25 1 1.4 III 1.6 ^ 6" ► Photographic Sciences Corporation 23 WIST MAIN STRUT WHSTIR.N.Y. MSSO (716) •72-4503 ^\ m i\ \ .'^ ■'! >«'■ •l.>. . !N\. I I " .' !li ,iiii ■! ill ill 11 III l63Z.] ED WARD COKE. 321 be excused by the sense of personal injury under which he smarted ; but he must unequivocally condemn the want of heart which he afterwards displayed, in never vis'ting his fallen foe in the Tower or in Gray's Inn, — in making no attempt to obtain a mitigation of the sentence — and in never sending him a letter, or even a kind mes- sage, to console him. I can find no trace of these two eminent men, who had been so long rivals, having thence- forth ever met or corresponded with one another. Bacon did not again sit in parliament, or appear in public life, but veiled his errors by devoting himself to the pursuits of literature and philosophy ; — while Coke, till he carried the Petition of Right, was constantly engaged in the political arena. If James Land Buckingham had acted discreetly, they would have forgiven the ex-Chief Justice's patriotic aber- ration, and tried to draw him back to them, by now offering him the great seal ; but they had put themselves into the hands of a shrewd Welsh parson, whose sub- serviency they could rely upon, and whom, to the aston- ishment of the world, they suddenly proclaimed Lord Keeper. Coke was even fiercer against the Court than he had been before Bacon's disgrace. After the triumph gained by the people in the over- throw of monopolies, and the conviction of the Lord Chancellor for bribery, the King was impatient to get rid of Parliament till the public excitement should subside, — but yet did not wish to give offense either by a sudden dissolution or prorogation; and he intimated his pleasure that the two Houses should adjourn themselves from May till November. Sir Edward Coke violently resented this proceeding, and carried a motion for a conference with the Lords that they might concert measures to prevent it. Having managed the conference, he reported that the Lords had agreed to a joint address, praying the King " to give them further time to finish the bills which they were considering." His Majesty, however, returned a sharp answer, saying that " the address was an improper inter- ference with his prerogative, as he alone had the power to call, adjourn and determine parliaments.'" Sir Ed- » I Pari. Hbt. 1265. I — 21 ''Pi" 318 REIGN OF JAMES I, [i6ai. ward Coke still complained of this proceeding, and, ad- mitting the King's power to prorogue or dissolve parlia- ments, insisted that adjournment ought to be a sponta- neous act of the House. Nevertheless, the King sent a commission, requiring that the proposed adjournment should be made. The House of Lords obeyed ; but the Commons, on the advice of Sir Edward Coke, refused to allow the commission to be read. Still there was a ma- jority for adjourning, according to the King's pleasure. " Then Sir Edward Coke, with tears in his eyes, standing up, recited the collect for the King and his issue, adding only to it, ' and defend them from their cru-el enemies.' After which the House adjourned to the 14th of Novem- ber." ' It should be mentioned, to the credit of the Chief Justice, that during this session, although he propounded some doctrines on the subject of money which no class of politicians would now approve, he steadily supported free trade in commodities. A bill "to allow the sale of Welsh cloths and cottons in and through the kingdom of England," being opposed on " reasons of state," he said, " Reason of state is often used as a trick to put us out of the right way ; for when a man can give no reason for a thing, then he flyeth to a higher strain, and saith it is a reason of state. Freedom of trade is the life of trade ; and all monopolies and restrictions of trade do overflow trade."* On the same principles he supported a bill " to enable merchants of the st -"'e to transport woolen cloth to Holland.'" And a bi; ing brought in " to prohibit the importation of corn, c. the protection of tillage," he strenuously opposed it, saying, " If we bar the importation of corn when it aboundeth, we shall not have it imported when we lack it. I never yet heard that a bill was ever before pr :ferred in parliament against the importation of corn, and I love to follow ancient pre- cedents. I think this bill truly speaks Dutch, and is for the benefit of the Low Countrymen."* During the recess he counteracted a selfish plot of the new Lord Keeper for " depriving" Archbishop Abbott, who, in hunting in his park, had unfortunately killed a • I Pari. Hist. 1295. • Ibid. is. 35. * Proceedings and Detates, i. 308, u. 155. * Ibid, iu 87. ■(-ft;- [l62I. 1621.] EDIVARD COKE, 333 \g, and, ad- lolve parlia- e a sponta- King sent a djournment :d ; but the :, refused to e was a ma- f s pleasure, es, standing ;sue, adding 2I enemies.' 1 of Novem- • the Chief propounded ich no class / supported the sale of le kingdom f state," he ;k to put us e no reason and saith it the life of of trade do 2 supported o transport brought in protection " If we bar VQ shall not yet heard lent against incient pre- , and is for plot of the op Abbott, sly killed a , i. 308, iL 155. man with a cross-bow. The attempt was to make it " culpable homicide," on the ground that the Archbishop was employed in an unlawful act when the accident hap- pened. But Coke asserted that, " by the laws of this realm, a bishop may rightfully hunt in a park ; — hunt he may by this very token, that a bishop, when dying, is to leave his pack of hounds (called muta canum) to the King's free will and disposal." ' When parliament again met in November, Coke's spleen was aggravated by a long and pedantic lecture to the two Houses, delivered by Lord Keeper Williams, who pretended to hold regularly-bred lawyers in con- tempt ; ' — and he exerted himself still more strenuously against the Government. The subjects which then agi- tated the public were the Prince's proposed match with the Infanta of Spain, which was strongly opposed by the popular party, — and the war for the recovery of the Pal- atinate, which they strongly desired. Sir Edward Coke moved an address to the King on these subjects, say- ing :— ** Melius est recurrere quam male currere. It is true that the father, even amongst private men, should have power to marry his children, but we may petition the King how his prerogatives are to be exercised for the public good. So the voice of Bellona, not the turtle, must be heard. The King must either abandon his daughter, or engage himself in war. The hope of this match doth make the Papists insolent. To cut off their hopes, he ought to marry the Prince to one of his own religion. On such matters the greatest princes have taken the advice of parliament. Edward III. did confer with the Commons about his own marriage ; and in the forty-second year of his reign, growing weary of bearing his armor, treating for peace, he acquainted the Com- mons with the treaty, — whereupon the Commons did be- seech him ' that he would take his sword in his hand, for a just war was better than a dishonorable peace.' In a record, 4 Hen. V., we read these words : — ' it shall hold for ever that it shall be lawful for the Commons to talk of the safety of the kingdom, and the grievances and rem- edies thereof.' The very writ of summons shows that • Collier's Eccl. Hist. ii. 722, * I Pari. Hist. 1296. > ! !• i' m m 3*4 REIGN OF JAMES I. [i6ai. we are called hither to advise for the defense and state of the King and the kingdom." ' The address was carried, but drew down an answer strongly reflecting on the mover: — ** We wish you to remember that we are an old and experienced King, needing no such lessons ; being in our conscience freest of any King alive from hearing or trusting idle reports, which so many of your House as are nearest us can bear witness unto you, if you would give as good ear unto them as you do to some tribuni- tial orators among you."" The King more deeply resented another address from the Commons, which they styled an *' Apologetic Peti- tion," and in which they maintained " that they had merely expressed their opinion with alldutifulness respect- ing the Spanish match and the assistance to be given to the King of Bohemia." He now said to them, — " This plenopotency of yours invests you in all power upon earth, lacking nothing but the Pope's, to have the keys also of heaven and purgatory. And touching your excuse of not determining any thing concerning the match of our dearest son, but only to tell your opinion ; first, we desire to know how you could have presumed to determine in that point, without committing high treason. In our former answer to you, we confess we meant Sir Edward Coke's foolish business. It had well become him, especially being our servant, and one of our council, to have explained himself unto us, which he never did, though he never had access refused to him." In a letter to the Speaker, the King gave this com- mand, — " Make known in our name unto the House, that none therein shall presume henceforth to meddle with any thing concerning our government, or deep matters of state. . . You shall resolve them in our name, that we think ourselves very free and able to punish any man's misdemeanor in parliament, as well during the sitting as after, — which we mean not to spare hereafter, upon any occasion of any man's insolent behavior there that shall be ministered unto us." I X ParL Hut. 1323. * Ibid. 1319. [i6ai. se and state 1 an answer i an old and s; being in n hearing or jr House as f you would )me tribuni- ddress from ogetic Peti- :t they had less respect- to be given them, — in all power to have the iching your :erning the ur opinion ; ) presumed itting high confess we It had well md one of us, which refused to e this com- louse, that leddle with rep matters name, that Dunish any during the ; hereafter, avior there id. 1319. i6ai.J £jD WAJiD COKE. 3«S His Majesty further insisted that the House had no privileges except such as were granted by him and his predecessors, — intimating that the privileges so granted, if abused, might be recalled. This seems to have thrown the House into a flame ; and, according to the Parlia- mentary History,' " Sir Edward Coke would have us make a Protestation for our privileges: that he can tell us when both Houses did sit in parliament together, both the Lords and the Commons: that the demand of the privileges of this House by the Speaker was after they began to be ques- tioned, and used to be done at the first meeting of the parliament, in this manner, that if the House might not have their privileges and liberties, they would sit silent. He protesteth before God that he ever speaketh his own conscience, but he doth not ever speak his own things, for he for the most part speaketh by warrant of prece-. dents. * Oinnis qiialitas in principali subjecio est in suvnno gradu,' as ' lumen in sole,' and so are the privi- leges (which are the laws) of the parliament here in par- liament, ^ in principali suhjcctOy and therefore, * in siimmo gradii.' The liberties and privileges of parliament are the mother and life of all laws ; whereas the King saith, ' he likcth not our styling our liberties our ancient in- heritance, yet he will maintain and give us leave to enjoy the same ;' indeed, striketh at the root of all our privi- leges. ' Consuetudo Rcgni,' is the law of this kingdom. He would have us stand upon the defense of our privi- leges in this point." ' The matter was referred to a committee, who agreed to a Protestation, — " That the liberties, franchises, privileges, and juris- dictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England ; and that the arduous and urgent affairs concerning the King, state, and the defense of the realm, and of the Church of England, and the making and maintenance of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament ; and that in the handling and proceeding of those businesses, » Vol. i. p. 1355. • Tarl. Hist. 1349. 326 REIGN OF JAMES /. [162a I'A I every member of the House hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conchision the same ; that the Commons in parliament have like liberty and freedom to treat of those matters in such order as in their judgments shall seem fittest, and that every such member of the said House hath like freedom from all impeachment, impris- onment, and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning, or declaring of any matter or matters touching the par- liament or parliament business." ' This Protestation, drawn by Sir Edward Coke, was, on his recommendation, adopted by the House, and en- tered in the Journals. But when the King heard of it he was frantic. He immediately prorogued the Parlia- ment, and ordered the Journals to be brought to him at Whitehall. Then, having summoned a meeting of the Privy Council, and ordered the Judges to attend, he in their presence " did declare the said Protestation to be invalid and of no effect; and did further, viami siid pro- prid, take it out of the Journal Book of the Clerk of the Commons' House of Parliament." Having torn it in pieces, he ordered an entry to be made in the Council Books, stating that, if allowed to remain, " it might have served for 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 Pro- clamation, which, after dwelling on the misdeeds of the House of Commons, particularly the Protestation, — " an usurpation which the majesty of a King can by no means endure," concluded by dissolving the Parliament.* ' r.irl. Hist. 1361. * Ibid. 1363. * Ibid. 1370. It was very severe on Coke and his associates as ill-tern- pered spirits," and accused them of "sowing tares with the wheat.' n [i62a ight ought 2at, reason, I Commons to treat of nents shall )f the said :nt, impris- 3ure of the reasoning, ig the par- Coke, was, se, and en- icard of it the Parlia- ; to him at ing of the end, he in Ltion to be 111 Slid pro- j Clerk of ng torn it le Council " it might the rights wn of this by a Pro- cds of the TATION, — can by no irliamcnt.* :s as ill-tem* leat.' CHAPTER X. CONCLUSION OF THE LIFE OF SIR EDWARD COKE. FROM the middle of the sixteenth to the middle of the eighteenth century, there were few public men of much note who, in the course of their lived, had not been sent as prisoners to the Tower of London. This distinction was now acquired by Sir Ed- ward Coke. He was committed along with Selden, Prynne, and other leaders of the opposition. At the' same time, orders were given for sealing up the locks and doors of his house in Holborn and of his chambers in the Temple, and for seizing his papers.' A general pardon being about to be be published, according to the 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 first expedient was to exclude him by name ; and then the proposal was adopted of preferring an indictment against 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 kitchen, he found written on the door of it by a v ;:■ — " This room has long wanted a Cook ;'" and he was s >on after com- plimented in the following distich, — " Jus conui'^re cocus potuit, sed condere jura Non potuit ; potuit condere jura cocus." Instead of being prosecuted for his speeches in the • The " Instructions to the Gentlemen that are to search Sir Edward Coke's papers," are still extant. There is an injunction " to take some of his servants or friends in their company, who shall be witnesses (hat they meddle with nothing that concerns his land or private estate." — CoL'on MS., Titus B. vii. 204. • D'Israeli's James I., jp. 125. T ^: U 338 RETGN OF JAMES I. [16^2. ■l"' . I ; W 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, espe- cially in comparing himself to the prophet Samuel ; and an information was directed to be filed ajrainst him in the Star Ch;inibcr, 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 per- mission to consult with eight of the best learned in the law on his case." But he returned thanks for the mon- arch's attention, and said " he knew himself to be ac- counted 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 pretense whereby to take away his head ; but against this it mattered not what might be said.'" His confinement was, at first, so rigorous, that " neither his children or servants could come at him ;"* but he was soon allowed to send for his law books — ever his chief delight, — and he made considerable progress with his Commentary on Littleton, which now engrossed all his thoughts. After a few months' confinement, the proceedings against him were dropped ; and in consequence of the intercession of Prince Charles he was set at liberty.* The King, however, finally struck his name out of the list of Privy Councillors, and, declaring his patriotism to proceed from disappointed ambition, exclaimed in spleen, " He is the fittest instrument for a tyrant that ever was in England."* No parliament sitting for two years, Sir Edward Coke, during this interval, remained quiet at his seat at Buck- inghamshire ; but, there being an intention of calling a * D'Israeli's James I,, 126. • Roger Coke. * '''he following dialogu is said to have passed between the Prince and tlie King on this occasion : — P. " I pray that your Majesty would mercifully consider the case of Sir Edward Coke." K. " I know no such man. ' P. " Perhaps your Majesty m.iy remember Mr. Coke. K, " I know no such man. By my saul, there is one Captain Coke, the leader of the faction in parliament." — Sloane MSS. Feb. z, 1621-22, in the British Museum. * Wilson's Life of James I., 191. [lC^3. i6a4.] EDWARD COKE. 339 imprison- )uncil on a caled some let ; he was sticc, cspc- imucl ; and nst him in Icbt due to "hristoplicr /as sent to ;n him per- 'ned in the )r the mon- f to be ac- any man in help, nor lis Majesty e away his t might be orous, that I at him ;"* ooks — ever le progress /engrossed )roceedings nee of the it liberty.* out of the patriotism elaimed in :yrant that tvard Coke, it at Buek- )f calling a Coke. he Prince and luld mercifully o such man. know no such the faction in 'usetim. new parliament, he was, in the autumn of 1623, put into a commission with several others, requiring them to proceed to Ireland, and make certain inquiries there, — a common mode, in the Stuart reigns, of inflicting banish- ment on obnoxious politicians. Me had formerly com- plained of this abuse of the royal prerogative ; but on this occasion he dexterously said, " he was ready to con- form to his Majesty's pleasure, and that he hoped in the sister isle to discover and rectify many great 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 honorable banishment. I myself was designed to go to Ireland ; I was willing to go, and hoped, if I had gone, to have found some Mompcssons 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 im- pending, 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 the dean and chapter lands in order to defray the expenses of the war. Under these circumstances the new parliament was called, and Sir Edward Coke was returned for Coventry, having still remained Recorder of that city, and kept up a friendly intercourse with its inhabitants. At the commencement of the session he appeared as a sup- porter of the Government, and he declared Buckingham to be the " savior of his country.'" He deserves much credit for carrying the act of par- liament, which is still in force, abolishing monopolies, and authorizing 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 in- dustry.* ' Rushworth, i. 523 ; 2 Pari. Hist. 257. 'Clarendon says.with creat spite, "Sir Edward Coke blasphemously called him Our Saviour. — Hist. vol. i. p. 9. •Stat. 21 James I. c. 3. Hume says, "This bill was conceived in sucl r4 \T 330 REIGN OF JAMES /. [i6m .1 ;i 'm The most exciting proceeding before this parliament was the impeachment of Lionel Cranfield, Earl of Middlesex, with whom Buckingham had quarreled, after having made him, from a city merchant. Lord High Treasurer of 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 b:irof the House of Lords as chief man- ager for the Commons. After a somewhat prolix pre- amble respecting impeachments in general, he said, — '• The House of Commons have appointed me to pre- sent three enormities to your Lordships, much against my inclination, other Members of their House being far more sufficient, as well in regard of my great years, as of other accidents ; yet I will do it truly, plainly, and shortly. The first is gross and sordid bribery. Here I crave favor if I should seem tedious in some particulars; for circumstances to things are like shadows to pictures, to set them out in fuller representation." His long opening he- at last concluded in these words : — " All this I speak by command ; I pray your Lordships to weigh it well with solemn consideration, and to give judgment according to the merits." The noble defendant had done various things, as head of the Treasury, which would now be considered very scandalous ; but he had only imitated his predecessors, and was imitated by his successors. Yet he was found guilty, diXid 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,ooo ; 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 terms as to render it merely declaratory ; and all monopolies were con- demned as contrary to law and to the known liberties of the people. It was then supposed that every subject in England had entire power to dispose of his own actions, provided he did no injury to any of his fellow subjects ; and that no prerogative of the King, no power of any magistrate, nothing but the authority alone of the laws, could restrain that unlimited freedom." — Vol. vi. p. 143, ' Lords' Journals ; i Pari. Hist. 1411-1478. [i6t4. i«a5.J EDWAKD COKE. SJi irliament Earl of led, after .rd High 1 bribery office, ird year, liicf man- olix pre- said, — le to prc- h against being far years, as inly, and Here I rticulars ; pictures, His long s :— " All dships to I to give s, as head :red very lecessors, as found ivhich he office or le Tower ;{;5o,ooo ; to come e retired with his s were con- people. It posvcr to f his fellow tnagisirate, it unlimited legal studies till he heard of the death of James I., in the spring of the following year. He immediately came to his house in Holborn upon the report that there was an intention to reassemble the old parliainent, which had expired with the King who called it ; but he found that, although Charles had ex- pressed a wish to that effect, a proclamation soon came out for the election of a new parliament. He was again returned for Coventry. At the commencement of the session his demeanor was marked by moderation. He entertained good hopes of the new Sovereign, and was resolved to give him every chance of a quiet and prosperous reign. Therefore, on the first day of business, when it was ex- pected that he would move, as he had done on former occasions, to appoint a committee for grievances, " he moved that there might be no committee for grievances, because this was the very beginning of the ncv King's reign, in which there can be no grievances as yet.'" However, he speedily quarreled with the Court ; and when the motion for a supply was made, he moved, by way of amendment, for a committee to inquire into the expenditure of the Crown ; speaking in this wise : — " Nccessitas affect at a, inviucibilis ct iitiprovida. If necessity comes by improvidence, there is no cause to give. No King can subsist in an honorable estate with- out three abilities : — i. Tc be able to maintain himself against sudden invasions. 2. To aid his allies and con- federates. 3. To reward his well-deserving serv^ants. But there is a leak in the government, whereof these are the causes: — Frauds in the customs — new invented offices with large fees — old unprofitable offices which the King might justly take away with law, love of his people, and his own honor — the King's household out of order — upstart officers — voluntary annuities or pen- sions which ought to be stopped till the King is out of debt and able to pay them — costly diet, apparel, build- ings, 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.'" In his reply he said, — 1 a Pari. Hist. 5. * Ibid. II. :i -r. li'; ?ri ■ ( 33a REIGN OF CHARLES I. [1636. " Two leaks would drown any ship. Solum et malum concilium, is a bottomless sieve. An officer should not be cupidus alienee rei, parens sties. Miser a servitus est ubi lex vaga ant incognita. Segrave, Chief Justice, was sentenced for giving sole counsel to the King against the commonwealth. I would give ;£"iooo out of my own estate, rather than grant any subsidy now." The committee was carried, and was proceeding so vigorously in the inquiry into grievances, that the King abruptly dissolved the parliament. But a supply being soon indispensable, from the ex- hausted state of the exchequer, a new parliament was to be summoned, and, to make it tractable, the notable expedient was invented of appointing the chief oppo- sition leaders sheriffs of counties, upon the supposition that they would thereby be disqualified to sit in the House of Commons. The ex-Chief Justice Coke, now in his 75th year, was appointed Sheriff of Buckingham- shire. Having in vain petitioned to be excused, on account of his age and the offices which he had hereto- fore held of much superior dignity, he demurred to taking the cath usually administered to sheriffs, which had remained unchanged since Popish times, and made the sheriff swear to " seek and to suppress all errors and heresies commonly called Lollories.'' " This," he ob- jected, " would compel him to suppress the established religion, since Lollard was only another name for Pro- testant.'' The Judges, being consulted, unanimously resolved that this part of the oath ought to be omitted, " because it is required by statutes which are repealed, having been intended against the religion now pro- fessed, then deemed heresy." He likewise excepted to other parts of the oath as unauthorized by any statute ; but the Judges said that the residue of the oath, having been administered divers years by the direction of the state, might be continued for the public benefit ; and the Privy Council obliged him to take it.' Nevertheless, not only without bribe, but without soli- citation, he was returned to the House ofCommons by his native county of Norfolk.' When the parliament met, a ' Cro. Car. 26. ' In his own language, "sine aliqvia motione aut petitione indc a me praEbitis," i626.] ED WARD COKE. 333 message from the King was (as we should think, most ir- regularly and unconstitutionally) brought down from the King by the Chancellor of the Exchequer, "that Sir Ed- ward Coke, being Sheriff of Buckinghamshire, was re- turned one of the knights of the shire for the county of Norfolk, wherefore he hoped the House would do him the right as to send out a new writ for that county." The ground chiefly relied upon was, that by a statute then in force, sheriffs were obliged constantly to reside within their bailiwicks.* The House referred the matter to the " Committee of Elections and Privileges," who made the unsatisfactory report, " that, after diligent search, they had found many cases pro and con as to a high sheriff for one county being elected to represent another in parliament." The House ordered them to make further search, and the session came to an end without any de^ 'sion. Neither he, nor any of the other sheriffs returned to the House, took their seats, but no fresh writs were issued to elect members in their ste=id ; and, on the very day before the dissolution (which, in spite of their exclusion, took place in anger, amidst vain attempts to obtain the redress of grievances), it was " re- solved by the House that Sir Edward Coke, standing de facto returned a member of that House, should have priv- ilege against a suit in Chancery commenced against Urn by the Lady Clare." * He performed the duties of Sheriff in a very exemplary manner ; and we are told that, when the assizes came round, he rode out to meet the Judges at the nead of a grand cavalcade. He likewise stood behind them very worshipfully, with a white wand in his hand. Whether they consulted him, either publicly or privately, on any knotty points of law which arose before them, we are not informed ; but, at a pinch, he must have been most ser- viceable, although he used to say " If I am asked a ques- tion of common law, I should be ashamed if I could not immediately answer it ; but if I am asked a question of ' This is repealed by 3 Geo. III. c. 15, » 2 Pari. Hist. 44-198. The law is now settled that although a sheriff cannot represent his own county, nor any place within it for which he makes out the precept, he may represent any other county, and even a town within his own county which happens to be a county of itself. i 'if": 334 REIGN OF CHARLES I. [1628 statute law, I should be ashamed to answer it without referring to the statute book." Charles, for a time, resorted to the most outrageous measures of internal government, as if parliaments were never to meet again. He raised money by forced loans and benevolences ; he arrogated to himself the power of committing to prison, without specifying any offense in the warrant of commitment ; he induced the Judges to decide that they had no power to examine such commit- ments, or to admit the prisoners to bail ; preparatory to the pecuniary imposition of ship-money, he required the different sea-ports to furnish a certain number of ships for his service at their own expense; and he billeted soldiers on those who refused his unlawful demands to live at free quarters. But, having engaged in a war with France, through the wanton caprice of Buckingham, it became indispensably necessary, in the beginning of the year 1628, once more to summon the great council of the na- tion. The attempt was not renewed to disqualify Sir Edward Coke, as a parliament man, by any office ; and such was his popularity, that he was returned by two counties — Suffolk and Buckinghamshire. He elected to serve for the latter, in which he had fixed his residence, and in which he was now regarded with veneration almost amounting to idolatry. When the new Parliament assembled, the King at- tempted to daunt the members who he thought might be troublesome, by saying in his opening speech — " If you shall not do your duties in contributing to the necessities of the state, I must, in discharge of my con- science, use those other means which God hath put into '?ny hands, in order to save that which the follies of some particular men may otherwise put in danger : take not this for a threatening, for I scorn to threaten any but my equals; but as an admonition from him v/ho, by nature and duty, has most care of your preservation and pros- perity." ' This was, indeed, the grand crisis of the English con- stitution. Had our distinguished patriots then quailed, parliaments would thenceforth have been merely the ' Rushworth, i. 477. 1628.1 EDWARD COKE. 11% sub vt of antiquarian research, or perhaps occasionally sumiaoned to register the edicts of the Crown. But, the House of Commons having begun the session with tak- ing the sacrament and holding a solemn fast, on the very first day devoted to public business Sir Edward Coke sounded the charge : — " Diun tempiis habevius bonuin operemiir. I am abso- lutely for giving supply to his Majesty ; yet with some caution. To tell you of foreign dangers and inbred evils, I will not do it. The state is inclining to a con- sumption, yet not incurable; I fear not foreign enemies; God send us peace at home. For this disease I will propound remedies ; I will seek nothing out of my own head, but from my heart, and out of acts of parliament. I am not able to fly at all grievances, but only at loans. Let us not flatter ourselves. Who will give subsidies, if the King may impose what he v/ill ? and if, after par- liament, the King may enhance what he pleaseth? I know the King will not do it. I know he is a religious King, free from personal vices ; but he deals with other men's hands, and sees with other men's eyes. Will any give a subsidy, if they are to be taxed after parliament at pleasure ? The King cannot lawfully tax any by way of loans. I differ from them who would have this of loans go amongst grievances, for I would have it go alone. I'll begin with a noble record ; it cheers me to think of it, — 26 Edw. III. It is worthy to be written in letters of gold. Loans against the will of the subject are against reason, and the franchises of the land ; and they desire restitution. What a word is that franchise ! The lord may tax his villeiVi high or low ; but it is against the franchises of the land for freemen to be taxed but by their consent in parliament. In Magna Charta it is provided that Nullus liber homo capiatur, vel imprisonetur , atit disseisetur de libera tenemento suo, (S'c, nisi per legale judicium parium suorum, vel per legem terrce.*' * The first grievance specifically brought before the House was the decision of the Judges respecting com- mitments by the King and Council without naming any cause : ' a Pari. Hist. 237. n^ REIGN OF CHARLES I. [1628 !• •■! i wi i !! Sir Edivard Coke: "This draught of the judgment will sting us, quia nulla causa fruit ostentata, — ' being committed by the command of the King, therefore he must not be bailed.' What is this but to declare upon record that any subject committed by such absolute command may be detained in prison forever? What doth this tend to but the utter subversion of the choice, liberty, and right belonging to every free-born subject in this kingdom? A parliament brings judges, officers, and all men into good order." ' He carried resolutions which, half a century after, were made the foundation of the Habeas Corpus Act : — I. " That no freeman ought to be committed or de- tained in prison, or otherwise retained by command of the King or the Privy Council, or any other, unless some cause of the commitment, detainer, or restraint be ex- pressed, for which by law he ought to be committed, de- tained, or restrained. II. " That the writ of Habeas Corpus cannot be de- nied, but ought to be granted to every man that is com- mitted or detained in prison, or otherwise restrained by the command of the King, the Privy Council, or any other."' While he attended to grievances at home, he was by no means indifferent to the honor and greatness of the country. Thus he spoke in the debate on granting a supply to enable the King to repel foreign aggression : — *' When poor England stood alone, and had not the access of another kingdom, and yet had more and as po- tent enemies as now, yet the King of England prevailed.* ' Ibid. 246. Notwilhstandinc; tliii violent invective against the doctrine that persons committed by the King could not be liberated by the Judges, it would appear that he himself when on the bench had sanctioned it. The Lord Chief justice Hyde, being questioned in the House of Lords for the late decision of the Court of King's Bench on this subject, said, " If we have erred, ' en-aviinus cum Patribus,' and they can show no precedent bui that our predecessors have done .is we have done — sometimes bailing, sometimes remitting, sometimes discharging. Yet we do never bail any committed by the King or his Council, till his pleasure be first known : and thus did the Lord Chief Justice Coke in Raynard's Case." — 2 ParL Hist. 292. • a Pari. Hist. 259. » " Poor England ! thou art a devoted deer, Beset with every ill but that of fear." — Cowper, r. [i628 1638.] ED WARD COKE. 337 judgment , — ' being re fore he lare upon absolute •? What le choice, n subject s, officers, ary after, us Act : — ;ed or de- nmand of ilcss some nt be ex- litted, de- ot be de- at is corn- rained by il, or any le was by ess of the supply to id not the md as po- Drevailcd.' the doctrine y the Judges, oned it. The Lords for the said, " If we ireccdent bu; imes bailing, ;vcr bail any first known; bj*."— 2 Pari In the parliament roll, 4 VAvt. III., the King and Par- liament gave God thanks for his victory against the Kings of Scotland and France ; he had them both in Windsor Castle as prisoners. In 3 Rich. II. the King was invironed with Flemings, Scots, and French, and the King of England prevailed. In 13 Rich. II. the King was invironed with Spaniards, Scots, and French, and the King of England prevailed. In 17 Rich. II. wars were in Ireland and Scotland, and 3^et the King of England prevailed : thanks were given to God ; and I hope I shall live to give God thanks for our King's vic- tories. But to this end the King must be assisted by good counsel. In 7 Hen. IV. one or two great men about the King mewed him up, that he took no other advice but from them ; whereupon the Chancellor took this text for the theme of his speech in parliament, ' Multorum consilia requiruntur in magnis ; in bello qui' maximc timcnt sunt in maximis periculis.* Let us give, and not be afraid of our enemies ; let us supply bounti- fully, cheerfully, and speedily. It shall never be said we deny all supply ; I think myself bound where there there is commune pcricidum, there must be commune auxUiumy Still he was determined that, before the supply was actually given, there should be an effectual redress of grievances. He therefore framed the famous PETiriON OF Right. This second MAGNA CllARTA enumerated the abuses of prerogative from which the nation had lately suffered, — levying forced loans and benevolences, — unlawful imprisonments in the name of the King and the Privy Council — billeting soldiers to live at free quar- ters — with various other enormities, — and, after de- claring them all to be contrary to former statutes and the laws and customs of the realm, assumed the form of an act of the Legislature, and, in the most express and stringent terms, protected the people in all time to come from similar oppressions. There were various confer- ences upon the subject between the two Houses, which ' 2 Pari. Illst. 255. It is curious to observe that Coke always dates his- torical events by the year of a king's reign ; and I suspect that his knowl- edge of history was chiefly drawn from poring over the Statute Book and the Rolls of Parliament. I — 28 338 REIGN OF CHARLES I. [x6»a i: f i^' i: Yvi were chiefly conducted on the part of the Commons by Sir Edward Coke. What seems very strange to us, — the Attorney General and other Crov/n lawyers were allowed to argue against the Petition at the bar, as coun- sel for his Majesty, and to combat its positions and enactments ; but they were completely refuted by the ex-Chief Justice, who not only had reason on his side, but possessed much more constitutional law and vigor of intellect than any of them, or all of them put to- gether. The King, afraid of the impression made upon the Lords, sent a message to both Houses, expressing his willingness to concede them a bill in confirmation of King John's Magna Charta, without additions, para- phrases, or explanations ; assuring them that no future occasion of complaint should arise. Mr. Secretary Cooke, with soft and honeyed expressions, moved that the House should be content with the King's assurances; and many members, persuaded by his rhetoric, were in- timating their assent to waive the Petition : — Sir Edward Coke : " Was it ever known that general words were a satisfaction to particular grievances ? Was ever a verbal declaration of the King verbuni Regis ? Where grievances be, the parliament is to redress them. Did ever parliament rely on messages ? The King's an- swer is very gracious, but we have to look to the law of the realm. I put no diffidence in his Majesty, but the King must speak by record ; and in particulars, not in generals. Did you ever know the King's message to come into a bill of subsidies ? All succeeding kings will say, ' Ye must trust me as well as ye did my predecessor, and give faith to my messages.' But messages of love have no lasting endurance in parliament. Let us put up a Petition of Right. Not that I distrust the King, but I cannot take his trust save in a parliamentary way." • The Commons resolved that they would proceed ; and the Lords passed the bill, but were prevailed upon by the courtiers to add a proviso, which would have com- pletely nullified its operation, ** that nothing therein contained should be construed to entrench on the sove- reign power of the Crown." The bill coming back to * 2 FarL Hist. 348 ; Rushworth, i. 558. [i6»8. imons by to us, — y'^ers were •, as coun- tions and d by the his side, and vigor 1 put to- lade upon xpressing nation of ans, para- no future Secretary oved that jsurances; , were in- it general res ? Was m Regis f •ess them. Cing's an- he law of but the rs, not in essage to kings will ;decessor, 2s of love us put up the King, amentary :eed ; and upon by lave com- 5 therein the sove- ; back to 1628] ED WARD COKE. 339 the House of Commons for their concurrence in the amendment, Sir Edward Coke said, — " This is viagnuui in parvo. It is a matter of great weight, and, to speak plainly, it will overthrow all our Petition ; it trenches on all parts of it ; it flies at loans, at imprisonment, and at billeting of soldiers. This turns all about again. Look into all the petitions of former times; the assenting answer to them never contained a saving of the King's sovereignty. I know that preroga- tive is part of the law, but * sovereign power' is no par- liamentary word. In my opinion, it weakens Magna Charta and all the statutes whereon we rely for the de- claration of our liberties ; for they are absolute without any saving of 'sovereign power.* Should we now add it, we shall weaken the foundation of the law, and then the building must fall. If we grant this by implication we give a ' sovereign power' above all laws. ' Power' in law, is taken {ox a pozvcr zuith force : the sheriff shall take the pozver of the county. What it means here, God only knows. It is repugnant to our Petition. This is a Petition of Right granted on acts of parliament, and the laws which we were born to enjoy. Our ancestors could never endure di salvo Jure suo from Kings — no more than our Kings of old could endure from churchmen salvo honore Dei et F.cclesics. We must not admit it, and to qualify it is impossible. Let us hold our privileges according to law. That power which is above the law, is not fit for the King to ask, or the people to yield. Sooner would I have the prerogative abused, and my- self to lye under it ; for though I should suffer, a time would come for the deliverance of the country." ' The amendment was rejected by the Commons; ^nd, after several conferences, the Lords agreed " not to in- sist upon it." Thereupon the Commons sent a message to the Lords by Sir Edward Coke — " To render thanks to their Lordships for their noble and happy concurrence with them all this parliament; to acknowledge that their Lordships had not only dealt nobly with them '.1 words, but also in deeds ; that this petition contained the true liberties of the subjects of England, and their Lordships concurring with the Com- • 8 Pari. Hist 357. 340 REIGN OF CHARLES /. [1628. mons had crowned the work; that this parliament might be justly styled ' Parliamentum benedictum ;' and to ask the Lords to join in bescechinci; his Majesty, fcr the comfort of his loving subjects, to give a gracious an- swer." * Buckingham would not venture to advise a direct veto by the words " Le Roy s'aviscra" but framed the follow- ing evaf>ive and fraudulent answer: — "The King willeth that right be done according to the laws and customs of the realm ; and that the statutes be put in due execution, that his subjects may have no cause to complain of any wrongs or oppressions contrary to their just rights and liberties, to the preservation whereof beholds himself in conscience as well obliged as of his own prerogative." * The Commons returned to their chamber in a rage ; and Speaker Finch, the devoted tool of the Court, seeing their excited condition, exclaimed, " I am commanded to interrupt any member who shall asperse a minister of state." Nevertheless, .Sir Edward Coke rose, but ac- cording to Rushworth, " overcome with passion, seeing the desolation likely to ensue, he was forced to sit, when he began to speak, through the abundance of tears." The veteran statesman, having in some measure recovered his self-command, thus proceeded : — " I now see that God has not accepted of our humble and moderate carriages and fair proceedings ; and the rather, because I fear they deal not sincerely with the King and with the country in making a free representa- tion of all these miseries. I repent myself, since things are come to pass, that I did not sooner declare the whole truth ; and not knowing whether I shall ever speak in this house again, I will do it now freely. We have dealt with that duty and moderation that never was the like after such a violation of the liberties of the subject. What shall we do ? Let us palliate no longer: if we do, God will not prosper us. I think the Duke of Bucks is the cause of our miseries, and, till the King be informed thereof, we shall never go out with honor or sit with honor here. That man is the grievance of grievances. Let us set down the causes of our disasters, and they ' 2 Pari. IlisU 372. » Ibid. 377. [i63S. Mit might ' and to y, fcr the cious an- ircct veto le follow- ng to the atutes be have no contrary servation bligcd as 1 a rage ; rt, seeing nmanded nister of but ac- n, seeing sit, when •f tears." ecovercd r humble and the ^vith the Drcsenta- :e things he whole speak in ive dealt the like subject. if we do, Bucks is nformed sit with evances. nd they 377. s638.] ED WAJiD COKE. S4S will all reflect upon him. It is not the King, but the Duke."— Cries, " 'tis he !" " 'tis he !" Rushworth adds, "This was entertained and answered with a full acclamation of the House, — as when one good hound recovers the scent, the rest come in with full cry."' The Lords and Commons agreed upon a joint address to the King, which was delivered to him sitting on the throne, saying that, ** with unanimous consent, they did become humble suitors unto his Majesty, that he would be pleased to give a clear and satisfactory answer to their PETITION OF RlGHT." The King said that " he intended by his former answer to give them full satisfac- tion, but that, to avoid all ambiguous interpretations, he was willing to please them as well in words as in sub- stance." The petition being now read, — by his desire the clerk, in the usual form in which the royal assent is given to bills, said, " Soit droit fait come il est desire;" and the Petition of Right became a statute of the realm.* There is an entry in the Journals stating, "When these words were spoken, the commons gave a great and joy- ful applause, and his Majesty rose and departed." In the evening there were bonfu'cs all over London, and the whole nation was thrown into a transport of joy. The Petition of Right might have led to a quiet and prosperous reign ; but, being recklessly violated, before many years elapsed a civil war raged in the king- dom, and the dethroned King lost his life on the scaf- fold. The Commons performed their part of the engage- ment, for they immediately read a third time, and passed, a bill to grant five subsidies to the King; and having ordered Sir Edward Coke to carry it to the Lords, almost the 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 a remonstrance ' Rushworth, i. 609 ; Whitclock, p. ic ; 2 Tarl. Hist. 41a * Charles I. ch. i 34* REIGN OF CHARLES I. [1639- ii . 1 ' . ;! ,m; ^x ■M fc i! M*l against this illegal proceeding, he suddenly put an end to the session by a prorogation, saying, " The profession of both Houses in the time of hammering your PETI- TION was, that you nowise trenched upon my preroga- tive. Therefore, it must needs be that I have thereby granted you no new power, but only confirmed the an- cient liberties of my subjects." He then resorted to the dishonorable expedient of circulating copies of the Pk- TiTioN OF 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 parliam'.nt was called, so that the right to levy tonnage and poundage was inalienably vested in the Crown. Sir Edward Coke, although deprived of office, and still excluded from the Privy Council, may be considered as having reached the zenith of his fame. Not only was he 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 expounder of the common law of England, by giving to the world his •* Commentary on Littleton," which had been his labori- ous occupation for many years. Although the first edi- tion abounded with errors of the press, the value of the book was at once recognized, 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 dis- charge of judicial duties. Parliament again met in the beginning of the follow- ing year, but Sir Edward Coke's name is not mentioned in the proceedings of the short session which was then held, except once, when the Speaker was directed to write to him to request his attendance.' No explana- tion is given of the cause of his absence, and, as he con- tinued at bitter enmity with the Court, he was probably detained in the country by illness. We may conjecture ' Journals, nth Feb. 1629. "In respect that tlic term ends lo-monow, and the assizes to follow, and divers mendiers that are lawyers of lliis House may be gone, it is ordeied liiat none shall yo forth of town without the leave of the House. Ordered also that the .Speaker's letter shall be sent for Sir Edward Coke." — 2 Pari. Hist. 463. They wanted his assistance in the debate on the claim of the King to levy tonnage and poundage without the authority of parliament. The same day Oliver Cromwell made his maiden speech, in which he denounced a sermon delivered at Paul's Cross as " flat popery." :i m [1639 — «634] ED WARD COKE. 343 an end ofcssion ir Peti- ircroga- t hereby the an- d to the the Pe- he had were in s called, age was ICC, and isidercd >nly was he now cr since r of the jrld his labori- irst cdi- c of the imonics ice that Jull dis- follow- ntioned as then ctod to :xphuui- hc con- robably -ijccturo o-monow, -Ts of I his .'u wiLliouL all be sent sistance in je without made his lul's Cross the resentful tone in which he would have exposed the violation of the Petition of Right, and the prominent part which he would have taken in the famous scene in the House of Commons immediately before the dissolu- tion, when Speaker Finch was held down in the chair while resolutions were carried asserting the privileges of the House. By his absence he had the good luck to escape the imprisonment inflicted on Sir John Eliot, Hollis, and the other popular leaders, who were afterwards convicted in the Court of King's Bench of a misdemeanor, for what they had done as members of the Mouse of Commons. He appeared in public no more. Although he sur- vived six years, no other parliament was called till his remains had mouldered into dust. Charles had resolved to reign by prerogative alone, and was long able to trample upon public liberty, till the day of retribution arrived. The first months of Coke's retirement were devoted to the publication of a new edition of his Commentary on Littleton, which was the most accurate and valuable till the tJiirtccutJi, 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 occu- pations, and the incidents which befell him, till the closing scenes of his life. He continued to reside constantly at Stoke Pogis. He was never reconciled to Lady Hatton, who, there is reason to fear, grumbled at his longevity. Mr. Garrard, in a letter, written 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 wiff» got her brother, the Lord Wimbledon, to post with her to Stoke, to get pos- session of that place ; but beyond Colcbrook 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 con- stantly refused " all dealings with doctors ;" and " he was wont to give God solemn thanks that he never gave • Strafford's Letters and Dispatches, i. 265. I) It ' ! I' I ■1 A !• K. , n> ;i 1 ^1 ii 344 REIGN OF CHARLES I. [1629— his body to physic, nor his heart to cruelty, nor his hand to corruption."' When turned of cit;lity, and his strength dcclininj; rapidly, a vi<^orous attempt wasj made to induce him to take medical advice ; ^>f this we have a lively account in a letter from Mr. Mead to Sir Martin Stuteville : — " Sir Edward Coke being now very infirm in body, a friend of his sent him two or three doctors to regulate his health, whom he told that he had never taken physic since he was born, and would not now begin ; and that he had now upon him a disease which all the drugs 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 ncbly with a reward of twenty pieces to each man.*" Of his accident, which in the first instance produced no serious effects, there is the following account entered by him in his diary, in the same firm and clear hand which he wrote at thirty: — " The 3d 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. A-ul yet by the providence of Al- mighty God, though I was in the greatest danger, yet I had not the lea 1. hun, nay, no hurt at all. For Al- mighty God saith by his prophet David, 'the angel of the Lord tarrieth round about them that fear him, and delivereth them, ct nomen Domini benedict urn, for it vas 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 company of his daughter, Lady Parbeck, whom he had forgiven — probably from a consciousness that iiur v^nos might be ascribed to his utLcr disregard o*^ when he concerted her marriage. She to watch over him till his death.* i\cr .'Tiinationr ) uiaucd piously • Lloyd's State Worthies, ii. 112. ' Hatlei.'ia MS. 390. fol. 534 ; Ellis Papers, iii. 263. •Exlr:ct of letter from Mr. Gerrard to Lord Deputy Strafford, dated [i6a9— ' 1634.1 EDU^ARD COKE. 345 lis hand ind his ipl wa;} ^>r this rlcail to body, a regulate 1 physic nd that Irugs of Europe :d them n nobly roduced entered ir hand ning in tile air, ckwards ), where li heavy ) of Al- :r, yet I For Al- ngel of im, and r it vas his fall, fined to )mpany brgiven J might nationj piously 3rd, dated i His law books were still his unceasing delight ; and he now wrote '^i'' Siicu.-P, Tliiun, and Fouktii In- STITUTIiS, whicii, tii()u;?h very inferior to the FlU.sr,are wonderful mo lumentn ./"his learning and industry. On one occasion, without his privity, his name was introduced in a criminal prosecution. A p-.TSon of the name of Jeffos, who s.cnis to have been insane, fixed a libel on the great gate of Wcstniinster Hall, asserting the judgment of Sir Edward Cok(\ when Chief Justice of the King's Bench, in the case of Magd;i'on College,' to be treason, calling him traitor and pirjurcd Judge, and scandalizing all the profcsiiion 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 offender should be indicted in the Court of King's Bench. Flad he been brought before the Star Chamber he could hardly h ve been more harshly dealt with, for he was sentences to stand twice in the pillory, to be carried round all the jurts in West- minster Hall with a descriptive paper 01, his breast, to make submission to every court there, to pay a fine of i^iooo, and to find sureties for his good be uivior during the remainder of his life." This proceeding was not prompted by ..ny kindness for the ex-Chief Justice ; on the contrary, hi was looked upon with constant suspicion, and the Government was eagerly disposed to make him the subject ^»f prosecu- tion. Buckingham had fallen by the hand of m assassin, but his arbitrary system of government was ; renuously carried on by Laud and those who had suoceeded to power ; taxes were levied without autiiority of Parlia- ment ; illegal proclamations were issued, to b' enforced in the Star Chamber ; and Noy's device of ship-money was almost mature. Sir Edward Coke ha zing then re- sided in the same county with Hampden, ai d at no 17th of March, 1636 : — " Here is a new business revived ; yoi. Lordship halh heard of a strong friendship heretofore betwixt Sir Robi. t Howard and the Lady Parbcck, for which she was called into the High L mmission, and there sentenced to stand in a white sheet in the Savoy Chu-.ch, which she avoided then by flight, and hath not been much looked riier since, having lived much out of town, and constantly these last two yeai ^ with her father at Stoke." He afterwards goes on to give an account i-f her im- prisonment in the Gatehouse, and her escape in the disguise of a 1 .i;ie. ' II Rep. 66. •Cro. C;:r. 175, •1 : I I, 34< REIGN OF CHARLES /. [1634. \\% ::;M 'h% great distance from him, — it is conjectured, without any positive evidence, that they consulted together as to the manner in which the law and the constitution might be vindicated. So much is certain, — that, from secret in- formation which the Government had obtained, Sir Francis Windebank, the Secretary of State, by order of the King and Council, came to Stoke on the ist of Sep- tember, 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 would, under these circumstances, offer him no personal annoyance ; but they insisted on 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 Commentary on Littleton ; the MS. of his Second, Third, and Fourth Institutes, his last will, and many other papers in his handwriting.' It is believed that Sir Edward Coke remained ignorant of this outrage, and that his dying moments were undis- turbed. He had been gradually sinking for some time, and on the 3d of Sept., 1634, he expired, in the eighty- third year of his age ; enjoying to the last the full pos- session 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 memory, with • Tlicre is now extant, in llie library at Lambetli, the original inventory of these papers, entitled " A catalogue of Sir Edward Coke's papers, that by warrant from the Council were brought to Whitehall, whereon his Majesty's pleasure is to be known, which of them shall remain tiiere." It begins, " A wanscott box, of his arms, accounts and revenues." The house in llol- born had been searched and rifled at the same time, for there is in the library at Lambeth another inventory, entitled "A note of such things as were found in a trunk taken from Pepys, Sir Edward Coke's servant, at London, brought lo Bagshot by his ISIajesty's commandment, and then broken up by liis Majesty, r)th of September, 1634." Among the items is " One paper of poetry to his children." This may have been the poetical version of his Reports ; of which I will afterwards give a specimen. The will was destroyed or lost, to the great prejudice of the family. The law MSS., as we shall see, were returned by order of the Long Parliament. [1634. lout any as to the night be 2cret in- led, Sir order of : of Sep- o search o arrest e on his under oyance ; e house iway all y could original tary on Fourth i in his gnorant 2 undis- le time, eighty- all pos- ulating, urytng- nificent :y, with inventory s, that by Majesty's It begins, ein 11 oi- ls in the thinpjs as :rvant, at incl tlien items is poetical :n. 'Jhe The law lent. 1634.1 ED WARD COKE. 347 a very long inscription, of which the following will prob- ably be considered a sufficient specimen : — " Quique dum vijjit, Bibliotheca viva, Mortuus dici meruit Bibliothecfe parens. Duodeccm Liberorum, trcdecim liborum Pater." For the benefit of the unlearned, there is another in- scription in the vulgar tongue ; which, after pompously describing his life and death, thus edifyingly con- cludes, — " Learne Reader to live so, that thou mayst so die." In drawing his character I can present nothing to cap- tivate or to amuse Although he had received an academ- ical eduction, his mind was wholly unimbued with liter- ature or science ; and he considered that a wise man could not reasonably devote himself to anything except law, politics, and industrious money-making. He values the 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 worshiper 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. " Srepc pater dixit, studium quid inutile tcntas? Mceonides nullas ipse reliquit opes." ' He shunned the society of Shakspeare and Ben Johnson, as of vagrants who ought to be set in the stocks, or whip- ped from tithing to tithing. The Bankside Company having, one summer, opened a theater at Norwich, while he was Recorder of that city, in his next charge to the grand jury he thus launched out against them : — ■ " I will request that you carefully put in execution the statute against vagrants ; since the making whereof, I have found fewer thieves, and the jail less pestered than before. ^\\Q.o{ stage players^ 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.'" ' 3 Institute, 74. * It is supposed to have been out of revenge for this charge, that Shak I 348 REIGN OF CHARLES I. [1634. m ' W*S'' His progress in science we may judge of by his dog^ matic assertion that " the metals are six, and no more — gold, silver, copper, tin, lead, and iron ; and they all proceed originally from sulphur and quicksilver, as from their father and mother." ' He is charged by Bacon with talking a great deal in company, and aiming at jocularity from the bench ; but he associated chiefly with dependents, who worshiped him as an idol ; and the only jest of his that has come down to us consoles us for the loss of all the rest : — Cowell's Interpreter being cited against an opinion he had expressed when Chief Justice, he contemptuously called the learned civilian Dr. Cotv-heeL' Yet we are obliged to regard a man with so little about him that is ornamental, or entertaining, or attractive, as a very considerable personage in the history of his coun- try. Belonging to an age of gigantic intellect and gigantic attainments, he was admired by his con- temporaries, and time has in no degree impaired his fame. For a profound knowledge of the common law of England, he stands unrivaled. As a Judge, he was not only above all suspicion of corruption, but, at every risk, he displayed an independence and dignity of deportment which would have deserved the highest credit if he had held his office during good behavior, and could have defied the 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. He appeared oppor- tunely at the commencement of the grand struggle be- tween the Stuarts and the people of England. It was then very doubtful whether taxes were to be raised with- out the authority of the House of Commons ; and wheth- er, 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 defense of speare parodied his invective against Sir Walter Raleigh, in the challenge of Sir Andrew Aguecheek. — See Boswell's Shakspeare, ii. 442. ' 3 Inst. ch. XX. * Cowell had given great offense by asserting that the King wai not bound by the laws, insomuch that by order of the House of Commons he was com- mitted to custody, and his book was publicly burnt. — Wihon Memor. Canta brig. p. 60, [1634. EDWARD COKE. 349 freedom ; but Coke alone, from his energy of character, and from his constitutional learning, was able to carry the Petition of Right; and upon his model were formed Pym and the patriots who vindicated that noble law on the meeting of the Long Parliament. He is most familiar to us as an author. Smart legal practitioners, who are only desirous of making money by their profession, neglect his works, and sneer at them as pedantic and antiquated ; but they continue to be studied by all who wish to know the history, and to ac- quire a scientific and liberal knowledge of our juridical and political institutions. I have already mentioned his REPORTS, the first eleven parts of which he composed and published 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 accu- racy to their predecessors, they were found to contain many important decisions on political subjects, which he had not ventured to give to the world in his life-time.' 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-15ooks and the end of the i6th cen- tury, Plowden, Dyer, and Kielway were the only report- ers in Westminster Hall. In the great case of the POSTNATI, Coke tells of the new plan which he adopted of doing justice to the Judges : — "And now that I have taken upon me to make a ' The first three parts were published in 1601, the fourth and fifth in 1603, and tlie following six parts between lf)o6 and 1616, when the Reporter pre- sided in C. P. or K. K. These were uU originally printed in Norman French. The 12th and 13th parts did not see the liglit till 1654 and 165S, when they appeared in an English translation ; the use of French in law l)roceedings having been forbidden by an ordinance of the Long Parlia- ment. The whole have been lately most admirably edited by my friend Mr. Farquhar Eraser. * There were then only twelve volumes of Reports extant, of which nine were Year-Books. The compilations called " Abridgments," however, were dreadfully bulky. '•>'.. 350 REIGN OF CHARLES I. i f report of their arguments, I ought to do the same as fully, truly, and sincerely as possibly I can ; howbeit, seeing that almost every judge had in the course of his argument a particular method, and I must only hold myself to one, I shall give no just offense to any, if I challenge that which of right is due to every reporter that is, to reduce the sum and effect of all to such a method as, upon consideration had of all the arguments, the reporter 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.'" Notwithstanding the value of his Reports, no reporter could venture to imitate him. He represents a great many questions to be ^^ resolved" which were quite irrel- evant, or never arose at all in the cause ; and these he disposes of according to his own fancy. Therefore he is often rather a codifier 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 learn- ing and authority should arise. Yet A\ that he recorded as having been adjudged was received with reverence.* The popularity of his Reports was much increased by the publication of a metrical abstract or rubric of the points determined, beginning with the name of the plaintiff. Thus : — Hubbard: " If lord impose excessive fine. The tenant safely payment may decline. — (4 Rep. 27.) Cawdry : " 'Gainst common prayer if parson say In sermon aught, bishop deprive him may." — (5 Rep. I.) His Opus magnum is his Commentary on Littleton, which in itself may be said to contain the whole com- mon law of England as it then existed. Notwithstand- ing 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 made, or is ever likely to make, any proficiency, must peruse him with delight. He apologizes for writing these Commentaries in Eng- lish, " for that they are an introduction to the knowledge of the national law of the realm ; a work necessary, and • 7 Rep, 4 a. • Bacon's Works, v. 473. EDWARD COKE. 351 same as howbeit, 36 of his ily hold any, if I reporter such a juments, clearest ons and case in leporter a great ite irrcl- ;hese he efore he eporter ; vv would is learn- •ecorded /erence." d by the e points DlaintifT. 27.) lep. I.) ittleton, le com- thstand- ; author over his ery law ike, any in Eng- owledge iry, and 173. 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 inconvenience.'" This work, which he thus dedicates — "IIJE.C EGO GRANDiEVUS 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 sovereign lord King James oi famous and etier blessed memory ^^ 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 un- acquainted with our juridical writers, had read the chap- ters on Knights' $e»;vico, Socage, ^^and $e»ije8r»tic, Jftjanfeal- molgne, Butigage, and VilJenage, he would have avoided various blunders into which he had fallen in his agree- able 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 excelled. Coke, it must be confessed, was sadly negligent of style as well as of arrangement : — but he sometimes accidentally falb into rhythmical diction, as in his concluding sentence : "And, for a fare- well to our jurisprudent, I wish unto him the gladsome light of jurisprudence, the lovelinesse of temperance, the stabilitie of fortitude, and the soliditie of justice." His other " Institutes," as he called them, published under an order of the House of Commons,' are of very inferior merit. The Second Institute contains an expo- ' Preface. * P. xxxvii. * Journals, I2th May, 1641, " Upon debate this day had in the Commcns House of Parliament, the said House did then desire and hold it fit that the heir of Sir Edward Coke should publish in print the Commentary on Magna Charta, the Pleas of the Crown, and the Jurisdiction of Courts, ac- cording to the intention of the said Sir Edward Coke ; and that none but the heir of the said Edward Coke, or he that shall be authorized by him, do presume to publish in print any of the aforesaid books or any copy hereof." This order was made the very same day on which the Earl of Strafford was beheaded. Ki' . I i i ')' t i : ss» REIGN OF CHARLES /. sition of Magna Charta and other ancient statutes; the Third treats of criminal law,' and the Fourth explains the jurisdiction of all courts in the country, from the Court of Parliament to the Court of Pie Poudre. He was likewise the author of a Book of " Entries" or legal precedents ; a treatise on Bail and Mainprize ; a compen- dium of Copyhold Law, called " The Complete Copy- holder;" and "A Reading on Fines and Recoveries,* which was regarded with high respect till these vener- able fictions were swept away. He represents himself as taking no great delight in legal composition, and I most heartily sympathize with the feelings he expresses : — " Whilst we were in hand with these four parts of the Institutes, 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 plowman and other mechanics; for one, when he was at his work, would merrily sing, and the plowman whistle some self-pleasing tune, and yet their work both proceeded and 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 expression of joy or cheerfulness whilst he is at his work." ' He had a passionate attachment to his own calling, and he was fully convinced that the blessing of Heaven was specially bestowed on those who 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 knowledt^^e of the laws but hath sucked from the breasts of that divine knowledge, honesty, gravity, and integ- rity, and, by the goodness of God, hath obtained a greater blessing and ornament than any other profession • The most curious chapter is on " conjuration, witchcraft, sorcery, or enchantment," in which he tells us of wizards " By rhimcs that can pull down full soon From lofty sky the wandering moon !" «nd highly applauds the legislature for punishing with death " such great abominations. '■* Epilogue to 4th Institute. EDll'AnD COKE. 3SJ to 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, 1 never saw any man of a loose and lawless life attain to any sound and perfect knowlcd;,;e of the said laws ; and on the other side, I never saw any man of excellent judgnicnt in the laws but was withal (being taught by such a mas- tor) honest, faithful and virtuous." " Wherefore," he say.;, " a great kiwyer never dies iviprolis aiit intcstatus, and his posterity continue to flourish to distant gen- orations." ' 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 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." ' From his large estates he had considerable ecclesiastical patron- age, which he always exercised with perfect purity, say- ing, in the professional jargon of which he was so fond, " Livings ought to pass by Livery and SciziHy and not by Bargain and Sale," ' He certainly was a very religious, moral, and temper- ate man, although he was suspected of giving to Law a considerable portion of those hours wliich, in the dis- tribution of time, he professed to allot to PRAYER and the Muses, according to his favorite Cantalena, — " Sex horas somiio, totidem des leyil)us :i.'4uis, Quatuor orabis, des epuliique duas. Quod supcrcst ultra sacris largiie caincenis." * His usual style of living was plain, yet he could give very handsome entertainments. Lord Bacon tells us " See Preface lo " Second Report." ' IJoyd's State Worthies, p. S25. * He tried to carry a law that on every presentation the patron should be sworn against simony, as well as the incumbewt. — Roger Coke's P'iitdUa-. lion,u. 266. * Thus varied • — *' Six hours to law, to soothing slumber seven. Eight to the world allow — the rest to Heaven." Or— " Six hours to law, to soothing slumljcrs seven, Ten to the world allot, and all »o ilcaven." See Macaulav's Es-ays vol. i. p. 3O7. 1—23 K- :i I 354 REIGN OF CHARLES I. i '! that he was wont to say, when a threat man came to din ner at his house ui.expectedly, * 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.' " ' He once had the honor 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 per- sonal favor of the sovereign, and he considered it among the felicities of his lot that he had obtained his prefer- ments nee precibuSf nee pretio. Notwithstanding his in- dependence, 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 in a fair case, a beau- tiful body with comely countenance ; a case which he did wipe and keep clean, delighting in good clothes, well wor". being wont \.o say that the outward neatness of ou! 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."* The only amusement in which he indulged was a game of bowls ; but, for the sake of 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 offense by the arrogance of his manners. He was unamiable in domestic life ; and the 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 friendship with any of his contemp Jiaries. Yet they speak of him with respect, if not with fondness. " He was," said Spelman, " the founder of our legal ' Apophthegms, 112. • Nichol's Progresses of Elizabeth, iii. 467, 568. • Worthies, ii. 297. • There ate many portraits and old engravings of him extant,— almost all representing him in his judicial robes, — and exhibiting features which, ac- cording to the rules of physiognomy, do not indicate high genius. i I ED WARD COKE. 355 legal storehouse, and, which his rivals must ^ ifess, though their spleen should burst by reason of it, the head of our jurisprudence.'" Camden declared that " he had highly obliged both his own age and posterity;"* and Ful- ler 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, Ilallam, after sayincj truly that he was " proud and overbearing," describes him as " a flatterer and tool of the Court till he had obtained his ends."* But he does not serm at all to have mixed in politics till, at the request of Burleigh, he consented to become a law officer of the Crown ; and although, in that capacity, he unduly stretched the prerogative, he at no time betrayed any symptom of sycophancy or subserviency. From the moment when he was placed on the bench, his public conduct was irreproachable. Our Constitutional His- torian is subsequently obliged to confess that " he be- came the strenuous asserter of liberty on the principles of those ancient laws which no one was admitted to know so well as himself; redeeming, in an intrepid and patriotic old age, the faults which we cannot avoid per- ceiving in his earlier life."* In estimating the merit of his independent career, which led to his fall and to his exclusion from office for the rest of his days, we are apt not sufficiently to recollect the situation of a " disgraced courtier " in the reign of James I. Nowadays, a po- litical leader often enhances his consequence by going into opposition, and sometimes enjoys more than ever the personal favor of the Sovereign. But, in the be- ginning of the 17th century, any one who had held high office, if forbidden " to come within the verge of the Court" — whether under a judicial sentence or not, — was supposed to have a stain affixed to his character, and he and those connected with him were shunned by all who had any hope of rising in the world. Most men, I am afraid, would rather have been Bacon than Coke. The superior rank of the office of Chan- cellor, and the titles of Baron and Viscount, would now go for little in the comparison ; but the intellectual and ' Kel. Spdm. p. 150. * Worthies. Norfolk, p. 251. * Britannia, Iceni, p. 3)1. * Const. Hist. i. 4F5. * Ih. 476. 3S< REIGN OF CHARLES I, the noblc-miiulod must be In danj^jcr of being captivated too much by Bacon's slupcndous genius and his brilliant European reputation, while his amiable qualities win their way to the heart. Coke, on the contrary, appears as a deep but narrow-minded lawyer, knowinj^ hardly anything beyond the wearisome and crabbed learning of his own craft, famous only in his own country, and repelling all fricndidiip or attachment by his harsh man- ners. Yet, when we come to apply the test of mond worth and upright conduct. Coke ought, beyond all question, to be preferred. lie never betrayed a friend, or truckled to an enemy. He never tampered with the integrity of judges, or himself took a bribe. When he had risen to influence, he exerted it strenuously in sup- port of the laws and liberties of his country, instead of being the advocate of every abuse and the at', ttor of despotic swa}'. When he lost his high office, Ik: did not retire from public life " with wasted si)irits ami an op- pressed mind," overwhelmed with the consciousness of guilt, — but, bold, energetic, and uncompromising, from the lofty feeling of integrity, he placed himself at the head of that band of patriots to whom we arc mainly indebted for the free institutions which we now enjoy. Lady Matton, his second wife, survived him many years. On his death she took posj--: -sion of the house at Stoke Pogis, and there she was residing when the civil war broke out. Having strenuously supported the Par- liament against the King, — when Prince Rupert ap- proached her with a military force she fled, leaving be- hind her a letter addressed to him, in which, having politely said, " I am most heartily sorry to lly from this dwelling, when I hear your Excellency is coming so near it, which, however, with all in and about it, is most willingly exposed to your pleasure and accommoda- tion," she gives him this caution : " The Parliament is the only firm fouiidation of the greatest establishment the King or his posterity can wish and attain, and there- fore, if you should persist in the unhappiness to su[)port any advice to break the Parliament upon any pretense whatsoever, you shall concur to destroy the bust ground- work for his Majesty's prosperity."' ' British Museum. Sloke Pogis House, so memorable in our Iejj.al ED WARD COKE. Sir Edward Coke, by his first wife, had seven son*, but none of them gained any distinction except Clement, the sixth, who, being a member of the House of Com- mons at the beginning of the reign of Charles I., in the debate upon the impeachment of the Duke of Bucking- ham, had the courage to use these words : " It is better to die by an enemy than to suffer at home :" for which there came a message of complaint from the Crown, and he would have been sent to the Tower,' but for the great respect for the ex-Chief Justice, who was sitting by his side, and disdained to make any apology for him. Roger Coke, a grandson of the Chief Justice, in the year 1660 published a book entitled "Justice Vindicated," which, although without literary merit, contains many curious anecdotes of the times in w'^'ch the author lived. In 1747, Thomas Coke, the lineal heir of the Chief Justice, was raised to the peerage by the titles of Vis- count Coke and Earl of Leicester; but on his death the male line became extinct. The family was represented, through a female, by the late Thomas Coke, Esq., who, inheriting the Chief Justice's estate and love of liberty, after representing the county of Norfolk in the House of Commons for half a century, was, in 1837, created Viscount Coke and Earl of Leicester, titles now enjoyed by his son. Holkham I hope may long prove an illus- tration of the saying of the venerable ancestor of this branch of the Cokes, that " the blessing of Heaven spe- cially descends upon the posterity of a great lawyer." annals, one of the places of confinement of Cliarles I. when in the power of the Parliament, and celebrated by Gray in his " Loijij Story," having passed from tliu Gayers, the Ilalseys, and the I'enns, is now the property of my valued friend and collca|;ne, the Rijjht Honorable Henry Labouchere. A c'.ilnmn lias been erected in the park to the memory of Sir Edward Coke ; but tliere is no oilier vestige in tiie parish of his existence, and there are no traditional stories conuerning him in the neighborhood. ' 2 I'arl. Hist. 50.