>.*.. J 
 
 
 CHIEF [USTICES 
 
 OF ENGLAND
 
 LIVES 
 
 OF THE 
 
 CHIEF JUSTICES OF ENGLAND.
 
 TJ1E STAR CHAMBER.
 
 THE LIVES 
 
 OF 
 
 THE CHIEF JUSTICES 
 
 OF 
 
 ENGLAND. 
 
 BY 
 
 LORD CAMPBELL, 
 
 AUTHOR Of 
 THE LIVES OF THE LORD CHANCELLORS OF ENGLAND. 
 
 VOL. I. 
 
 NEW YORK: 
 GEORGE W. SMITH & COMPANY 
 
 LAW BOOKSELLERS, 95 NASSAU STREET. 
 I 874-
 
 TO 
 
 THE HONORABLE 4 
 
 DUDLEY CAMPBELL. 
 
 MY DEAR DUDLEY, 
 
 As you have chosen the noble though arduous pro- 
 fession of the Law, I dedicate to you. the LIVES OF THE 
 CHIEF JUSTICES, in the hope that they may stimulate 
 in your bosom a laudable ambition to excel, and that 
 they may teach you industry, energy, perseverance, and 
 self-denial. Learn that, by the exercise of these virtues, 
 there is no eminence to which you may not aspire, and, 
 from the examples here set before you, ever bear in 
 mind that truly enviable reputation is only to be ac- 
 qired by independence of character, by political con- 
 sistency, and by spotless purity both in public and pri- 
 vate life. 
 
 I cannot hope to see you enjoying high professional 
 distinction ; but, when I am gone, you may rescue my 
 name from oblivion, and, if I should be forgotten by 
 all the world besides, you will tenderly remember 
 
 Your ever affectionate Father. 
 
 CAMPBELL.
 
 Tiii PREFACE. 
 
 LORS, although sometimes 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 official duties, were 
 known only to have decided such questions as " whether 
 beasts of the plow taken in vetito namio may be replevied? " 
 So many of them as I could not reasonably hope to make 
 entertaining or edifying, I have used the freedom to pass 
 over entirely, or with very slight notice. But the high 
 qualities and splendid career of others in the list have 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 are 
 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. 
 
 1 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 Emperor Dioclesian, : " Gemmae 
 vero S S indicabant Sancti Simpiicii nomen. ' (Or. Jur. xxxv.)
 
 PREFACE. Jx 
 
 In taking farewell of the Public, I beg permission to return my 
 sincere thanks for the kindness I have experienced both from 
 friends and strangers who have pointed out mistakes and sup- 
 plied deficiencies in my biographical works, and earnestly to 
 solicit a continuance of similar favors. 
 
 Stratheden House, 
 Aug. 10, 1849.
 
 CONTENTS 
 
 OF 
 
 THE FIRST VOLUME. 
 
 CHAPTER I. 
 
 LIVES OF THE CHIEF JUSTICES FROM THE CONQUEST TO THB 
 REIGN OF EDWARD I. 
 
 Origin and Functions of the Office of Chief Justiciar, or Chief Justice, of 
 England, Page I. ODO, the first Chief Justiciar, 4. His birth, 4. He 
 accompanies William the Conqueror in the Invasion of England, 4. He 
 is appointed Chief Justiciar, 5. Cause tried before him, 6. His quarrel 
 with the King, 7. He is liberated from Imprisonment, 8. He conspires 
 against William Rufus, 9. He is banished from England, 10. His Death, 
 10. WILLIAM FITZ-OSBORNE Chief Justiciar, n. WILLIAM DE WAR- 
 RENNE and RICHARD DE BENEFACTA Chief Justiciars, 12. WILLIAM DE 
 CARILEFO Chief Justiciar, 14. FLAMBARD Chief Justiciar, 15. First 
 Sittings in Westminster Hall, 15. ROGER, BISHOP OF SALISBURY Chief 
 Justiciar, 16. RALPH BASSET Chief Justiciar, 16. PRINCE HENRY (af- 
 terwards Henry II.) Chief Justiciar, 17. RICHARD DE Luci Chief Jus- 
 ticiar, 17. ROBERT EARL OF LEICESTER, Chief Justiciar, 18. RANULFUS 
 DE GLANVILLE, 19. His Birth, 19. He is Sheriff of Yorkshire, 19. He 
 takes William the Lion, King of Scots, Prisoner, 21. How the News 
 was received by Henry II., 22. Glanville made Chief Justiciar, 23. 
 Glanville as a Law Writer, 25. Preface to Glanville's Book, 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, 
 BISHOP OF DURHAM, Chief Justiciar, 36. His licentious youth, 36. His 
 meritorious middle age, 37. His seven years of Blindness, 37. His 
 Death, 38. WILLIAM LONGCHAMP, 38. WALTER HUBERT, ARCHBISHOP 
 OF CANTERBURY, Chief Justiciar, 38. Case of William-with-the-Long- 
 Beard, 39. Hubert deposed from the Justiciarship, 41. GEOFFREY FITZ-
 
 CONTENTS. 
 
 PETER Chief Justiciar, 42. Trial of the Case of Fauconbridge v. Fau- 
 conbridge, 43. PETER DE RUPIBUS, 44. Peter de Rupibus in favor with 
 Henry III., 45. He takes the Cross, 46. He gains a Battle for the 
 Pope, 47. His Death, 47. HUBERT DE BURGH, 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 
 office of Chief Justiciar, and takes to Sanctuary, 52. He is confined in 
 the Tower of London, 53. Death of Hubert de Burgh, 54. STEPHEN 
 DE SEGRAVE, 56. Obscure Chief Justiciars, 56. HUGH Eicon Chief 
 Justiciar, 56. HUGH LE DESPENCER Chief Justiciar, 58. Death of Hugh 
 le Despencer, 60. PHILIP BASSET Chief Justiciar, 60. His Death, 61. 
 Whether Simon de Montfort was ever Chief Justiciar? 62. HENRY DE 
 BRACTON Chief Justiciar, 63. Bracton's Book, " De Legibus et Consue- 
 tudinibus Anglise," 64. First Chief Justice who acted merely as a Judge, 
 65. Lord Chief Justice BRUCE, 65. Origin of the Bruces, 66. Scottish 
 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, 68. He is made Chief Justice, 68. He loses the 
 Office on the Death of Henry III., 63. He returns to Scotland, 68. He 
 is a Commissioner for negotiating the Marriage of the Maid of Norway 
 with the Son of Edward I., 69. On her death he claims the Crown of 
 Scotland, 69. He acknowledges Edward I. 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 THE ACCESSION OF EDWARD 
 I. TO THE APPOINTMENT OF CHIEF JUSTICE TRESIL1AN. 
 
 Judicial Institutions of Edward I., 71. RALPH DE HENGHAM 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 Bribery, 76. Convictions of 
 the Judges, 76. De Hengham is fined 7000 Marks, 76. Opinions respect- 
 ing him in after-times, 77. He is restored to public Employment, 77. His 
 Death, 77. DE WEYI.AND Chief Justice of the Common Pleas, 78. His 
 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 I. in the Dispute 
 about the Crown of Scotland, 80. His Address to the Scottish Parlia- 
 ment, Si. 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 Death, 85. Sir William 
 Howard, qu. whether a Chief Justice? 85. HENRY LE SCROPE. 86. Sum-
 
 CONTENTS. xv 
 
 moned to the House of Lords, 86. Chief Justice of the King's Bench, 
 87. HENRY DE STAUNTON Chief Justice of the King's Bench, 87. Bal- 
 lad on Chief Justice Staunton, 89. SIR ROBERT PARNYNG, 90. SIR 
 WILLIAM DE THORPE, 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 
 KNYVET, 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. His Descendants, 97. 
 
 CHAPTER III. 
 CHIEF JUSTICES TILL THE DEATH OF SIR WILLIAM GASCO1GNE. 
 
 SIR ROBERT TRESILIAN, 98. He is made a Puisne Judge of the Common 
 Pleas, 98. Chief Justice of the King's Bench, 99. His Plan to enable 
 Richard II. to triumph over the Batons, 100. 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, 
 in. His Character, in. SIR ROBERT BELKNAPPE, in. His Family, 
 112. He is made Chief Justice of the Common Pleas, 112. The Man- 
 ner in which he was coerced into the giving of an illegal Opinion, 113. 
 He is arrested and convicted of High Treason, 113. Judges attainted 
 of High Treason, 114. The Sentence commuted for Transportation to 
 Ireland, 116. He is allowed to return to England, 116. His Death, 
 116. SIR WILLIAM THIRNYNGE, 117. Chief Justice of the Common 
 Pleas, 117. Justification of the part he took in the Deposition of Rich- 
 ard II., 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 Bolingbroke, afterwards Henry III., 125. His Pro- 
 ceedings in tliis 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 a 
 Prelate and a Peer, 128. Story of his committing the Prince of Wales 
 to Prison ; qu. whether it be authentic ? 129. When and where first men- 
 tioned, 130. Story as related by Sir Thomas Eiyot, 130. Represented
 
 xvi CONTENTS. 
 
 on the Stage, 133. Hovr the Story is treated by Shakspeare, 134. Ref. 
 utation of the Claims of other Judges, 136. Merit of Sir W. Gascoigne 
 in this Transaction, 137. Sir William Gascoigne's Law Reforms, 138 
 Curious Case in which he acted as an Arbitrator, 139. Refutation of the 
 Assertion that he died in the Reign of Henry IV., 139. His Will, 140. 
 His Tomb and Epitaph, 141. 
 
 CHAPTER IV. 
 
 CHIEF JUSTICES TILL THE APPOINTMENT OF CHIEF JUSTICE FITZ- 
 JAMES BY KING HENRY VIII. 
 
 SIR WILLIAM HANKFORD, 143. His Ingenious Suicide, 144. His Monu- 
 ment and Epitaph, 144. Obscure Chief Justices passed over, 144. SIR 
 JOHN FORTESCUE, 145. SIR JOHN MARKHAM, 145. His Professional 
 Progress, 146. He is a Puisne Judge, 146. He is appointed Chief Jus- 
 tice of the King's Bench, 146. His Conduct on the Trial of Sir Thomas 
 Cooke, 147. He is dismissed from his Office, 148. His Death, 148. His 
 Character, 148. SIR THOMAS BILLING, 149. His obscure Origin, 149. 
 He starts as a Lancastrian, 150. He is made King's Sergeant, 150. He 
 goes over to the Yorkists, 151. He is made a Puisne Judge, 151. Trials 
 for Treason before him, 151. He is made Chief Justice of the King's 
 Bench, 153. Trial of Rex v. Burdet, 153. Billing again a Lancastrian, 
 155. Billing again a Yorkist, 156. His Conduct on the Trial of the 
 Duke of Clarence, 157. His Death, 158. SIR JOHN HUSSEY, 159. His 
 legal Studies, 159. He is made Attorney General, 159. He is made Chief 
 Justice of the King's Bench, 159. His Submission to Richard III., 160. 
 He is continued in his office by Henry VIL, 161. His Death, 162. SIR 
 JOHN FlNEUX, 163. Tripartite Division of His Life, 163. 
 
 CHAPTER V. 
 
 CHIEF JUSTICES TILL THE APPOINTMENT OF CHIEF JUSTICE POP- 
 HAM BY QUEEN ELIZABETH. 
 
 SIR JOHN FITZJAMES, 164. His early intimacy with Cardinal Wolsey, 164. 
 He is made Attorney General, 165. He conducts the Prosecution against 
 the Duke of Buckingham, 165. He is made a Puisne Judge, 165. Chief 
 Justice of the King's Bench, 165. His base Conduct on the Fall of 
 Wolsey, 166. Fitzjames assists in drawing up the Articles of Accusation 
 against Wolsey, 167. Eitzjames condemns to death Protestants and 
 Catholics, 169. Trial of Bishop Fisher, 169. Trial of Sir Thomas 
 More, 171. Trial of Anne Boleyn and her supposed Gallants, 172. 
 Death of Fitzjames, 173. SIR EDWARD MONTAGU, 174. His Family, 
 174. His professional Progress, 174. He is returned to the House of 
 Commons : how a Leader of Opposition was dealt with by Henry VIII.,
 
 CONTENTS. xvii 
 
 175. Grand Feast when Montagu was called Sergeant, 175. He is made 
 Chief Justice of the King's Bench, 176. Pleasures and Discomforts ex- 
 perienced by him, 176. Gives an Opinion on the Invalidity of the King's 
 Marriage with Anne of Cleves, 177. His Opinion on the Proofs against 
 Catherine Howard, 177. He exchanges his Office for the Chief Justice- 
 ship of the Common Pleas, 178. His Conduct on the Trial of the Duke 
 of Norfolk, 179. He is employed to make the Will of Edward VI. in 
 favor of Lady Jane Grey, 181. He loses his Office on the Accession of 
 Queen Mary, 182. His Death, 182. The Five Obscure Justices of the 
 King's Bench, 182. SIR JAMES DYER, Lord Chief Justice of the Com- 
 mon Pleas, 183. Latin Verses in his Praise, 183. His Origin and Edu- 
 cation, 183. His early Genius for Reporting, 184. His Merits as a Re- 
 porter, 184. He is Speaker of the House of Commons, 185. He is made 
 Queen's Sergeant, 185. He conducts the Prosecution against Sir Nicholas 
 Throckmorton, 1 86. He is made a Puisne Judge, 188. Chief Justice of 
 Common Pleas, 188. His Reports, 189. Case on the Marriage of Minors, 
 190. Case on the Benefit of Clergy, 191. Cases on the Law of Villein- 
 age, 191. Conduct on the Trial of the Duke of Norfolk, 194. Charge 
 against him for arbitrary Conduct as Judge of Assize, 195. His Death, 
 196. Publication of Reports, 197. Sad Fate of the Last of his House, 
 198. SIR ROBERT CATLYNE Chief Justice of the King's Bench, 198. 
 His Descent from Cataline the Conspirator, 198. Feast when he was 
 called Sergeant, 199. He is made a Puisne Judge, 200. Chief Justice, 
 200. He assists at the Trial of the Duke of Norfolk, 201. Qu. whether 
 the fact of a Witness being a Scot renders him incompetent, or only goes 
 to his credit? 201. Chief Justice Catlyne passes Sentence on Hickford, 
 203. His Death and Burial, 205. His Descendants, 205. SIR CHRIS- 
 TOPHER WRAY, 205. His Doubtful Parentage, 206. He is a Sergeant- 
 at-Law, 206. He is Speaker of the House of Commons, 206. He is 
 made Chief Justice of the King's Bench, 208. He tries Campion the 
 Jesuit, 208. Trial of William Parry for Treason, 210. Wray presides 
 in the Star Chamber on the Trial of Secretary Davison, 211. Trial of 
 the Earl of Arundel, 213. Death of Chief Justice Wray, 213. His 
 Character, 213. 
 
 CHAPTER VI, 
 
 CHIEF JUSTICES FROM THE DEATH OF SIR CHRISTOPHER WRAY 
 TILL THE APPOINTMENT OF SIR EDWARD COKE BY JAMES I. 
 
 SIR JOHN POPHAM, 214. His Birth, 214. At Oxford, 215. His Profligacy 
 when a Student in the Temple, 215. He takes to the Road, 215. He 
 reforms, 216. His professional Progress, 217. He is made Solicitor 
 General, and Speaker of the House of Commons, 218. His Address to 
 the Queen at the end of the Session, 219. He becomes Attorney Gen- 
 eral, 219. Proceeding ia the Star Chamber on the Death of the Earl of
 
 xviii CONTENTS. 
 
 Northumberland, 220. Tilney's Case, 221. He prosecutes Secretary 
 Davison for sending off the Warrant for the Execution of Queen Mary. 
 222. Popham is made Chief Justice of the King's Bench, 224. His 
 gallant Conduct in Essex's Rebellion, 225. Essex's Trial, 225. Trial of 
 Essex's Accomplices, 226. Sir Walter Raleigll tried before Popham, 227. 
 Practice of Putting Questions to the Prisoner in Criminal Trials, 228. 
 Gunpowder Plot, 230. Trial of Garnet, Superior of the Jesuits, 231. 
 Death of Popham, 232. Legend respecting the Manner in which he ac- 
 quired the Manor of Littiecote, 236. His Reports, 235. His Fortune, 
 
 235. SIR THOMAS FLEMING, the Rival of Bacon, 236. His Laborious- 
 ness, 236. He is made Solicitor General in preference to Lord Bacon, 
 
 236. He breaks down in the House of Commons. 238. He refuses to 
 resign the Office of Solicitor General in favor of Bacon, 139. He is made 
 Chief Baron of the Exchequer by James I., 139. "The Great Case of 
 Imposition," 239. Fleming appointed Chief Justice of the King's Bench, 
 242. His Judgment in the Case of the Postnati, 242. Prosecution of 
 the Countess of Shrewsbuiy, 243. Death of Chief Justice Fleming, 243. 
 
 C HAPTER VII. 
 
 LIFE OF LORD CHIEF JUSTICE SIR EDWARD COKE, FROM HIS BIRTH 
 
 TILL HE WAS MADE CHIEF JUSTICE OF THE COURT 
 
 OF COMMON PLEAS. 
 
 Merits of SIR EDWARD COKE, 245. His Family, 246. His Birth, 246. At 
 School, 247. At the University, 247. A Student of Law, 248. He is 
 called to the Bar, 249. His first Brief, 249. He is Counsel in " Shelly's 
 Case," 251. His great Success and professional Profits, 251. His first 
 Marriage, 252. He is appointed Recorder of Coventry, &c., 252. He is 
 made Solicitor General, 253. 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 Bacon 
 for the office 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, 258. Coke in 
 Private Life, 259. Death of his first Wife, 259. His Courtship of Lady 
 Hatton, 260. He breaks a Canon of the Church, 261. He is prosecuted 
 in the Ecclesiastical Court, 262. His Quarrels with his second Wife, 262. 
 Accession of James I., 263. Coke is knighted, 263. Plis insulting lan- 
 guage to Sir Raleigh, 264. Logomachy between Coke and Bacon, 266. 
 Bacon's Letter of Remonstrance to Coke, 267. Coke conducts the Pros- 
 ecution of Guy Fawkes, 268. Trial of Garnet the Jesuit, 270. Coke 
 made Chief Justice of the Common Pleas, 272.
 
 CONTENTS. xix 
 
 CHAPTER VIII. 
 
 CONTINUATION OF THE LIFE OF SIR EDWARD COKE, T LL HB 
 
 WAS DISMISSED FROM THE OFFICE OF CHIEF JUSTICE 
 
 OF THE COURT OF KING'S BENCH. 
 
 His Meritorious Conduct as a Judge, 275. Part taken by him in the Case 
 of the Postnati, 276. He opposes the Court of High Commission, 277. 
 He resists the Claim of the King to sit and try Causes, 278. He checks 
 the arbitrary Proceedings of other Courts, 280. He denies the power of 
 the Crown to alter the Law by "Proclamation," 281. Coke against his 
 will is made Chief Justice of the King's Bench, 283. He gives a qualified 
 Support to "Benevolences," 285. His laudable Conduct in Peacham's 
 Case, 285. He exerts himself to bring to justice the Murderers of Sir 
 Thomas . Overbury, 287. Bacon afraid that Coke would be made Lord 
 Chancellor, 289. Coke's Dispute with Lord 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 Buckinghom, 294. Coke 
 is summoned before the Privy Council : frivolous Charges against him, 
 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 office 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 THE LIFE OF SIR EDWARD COKE, TILL HE 
 WAS SENT PRISONER TO THE TOWER. 
 
 Coke's Conduct after his Disgrace, 303. His Plan to circumvent Bacon by 
 marrying his Daughter to Sir John Villiers, 304. Resentment of Lady 
 Hatton, who carries off and conceals their Daughter, 305. Coke's March 
 at the Head of an armed Band of Men to rescue his Daughter, 306. He 
 succeeds, 306. Bacon's indiscreet effort to break off the Match, 307. 
 Coke is prosecuted in the Star Chamber for carrying off his Daughter, 
 308. Lady Hatton confined and prosecuted for her part in this affair, 
 308. Bacon in danger of being dismissed from his office of Chancellor, 
 supports the Match, 309. Letter of the Lady Frances Coke to her 
 Mother, 310. The Wedding, 311. Lady Hatton restored to Liberty and 
 to Favor at Court, 311. Coke attends to the judicial business of the 
 Privy Council, 312. He sits in the Star Chamber, 312. Coke a Lord 
 Commissioner of the Treasury, 313. A new Parliament to be called, 314. 
 Coke is returned fur Liskeanl, 315. His treatment of the Presentation
 
 xx CONTENTS. 
 
 Copy of Bacon's Novura Organum, 315. Coke disappointed in not being 
 made Lord Treasurer, 316. He completes his " Reports," and proceeds 
 with his Commentary on Littleton, 316. Parliament meets, 316. Coke 
 prompts and conducts the Proceedings which led to the Downfall of 
 Bacon, 317. His Rebuke to a member of the House of Commons who 
 scofted at the Observance of the Sabbath Day, 318. He exposes the 
 Abuse of Monopolies, 319. Charges against Bacon for taking Bribes, 
 320. Coke procures the Impeachment of Bacon, 320. Sentence against 
 Bacon, 320. Coke exasperated by the Appointment of Williams as Lord 
 Keeper, 321. Struggle respecting the King's Power to order the two 
 Houses to adjourn, 321. Lord Coke a " Free Trader," 322. He de- 
 fends Archbishop Abbott from the Charge of Manslaughter, 322. Coke 
 Leader of the Opposition in the House of Commons, 323. The King 
 forbids the House of Commons to discuss Matters of State, and denies 
 their Privileges, 324. Coke's Vindication of the Privileges of the House, 
 
 325. He moves a "Protestation," which is agreed to and entered in the 
 Journals, 325. The King tears the "Protestation " from the Journals, 
 
 326. Parliament dissolved, 326. 
 
 CHAPTER X. 
 CONCLUSION OF THE LIFE OF SIR EDWARD COKE. 
 
 Coke committed to the Tower, 327. He employs himself on " Co. Litt," 
 328. He is released on the Intercession of the Prince of Wales, 328. 
 Coke defeats an Attempt to banish him to Ireland, 329. Coke for a short 
 time reconciled to Buckingham, 329. Coke conducts the Impeachment 
 of the Earl of Middlesex, 330. Accession of Charles I., 331. Coke's 
 Moderation, 331. His Motion for an Inquiry into the Expenditure of the 
 Crown, 331. Abrupt Dissolution of Parliament, 332. Expedient to ex- 
 clude Coke from the new Parliament by making him a Sheriff, 332. He 
 is returned for Norfolk, 332. Qu. whether he was disqualified by reason, 
 of his being a Sheriff? 333. Coke serves the office of Sheriff with great 
 distinction, 333. Arbitrary Measures of the Government, 334. Coke 
 Member for Buckinghamshire in a new Parliament, 334. The King tries 
 to intimidate the Parliament, 334. Coke's Defense of Public Liberty, 
 335. Coke's patriotic Regard for the Glory of England, 336. Coke 
 brings forward the Petition of Right, 337. Proviso introduced in the 
 House of Lords to save the " Sovereign Power of the Crown," 338. On 
 the recommendation of Coke this is rejected by the Commons, 339. The 
 King's Attempt to return an evasive Answer, 340. Coke's Denunciation. 
 of the Duke of Buckingham, 340. The Petition of Right receives the 
 Royal Assent in due form, 341. Bill for Supply passes, which Coke car- 
 ries up to the House of Lords, 341. Sudden Prorogation, 342. Coke
 
 CONTENTS. xxl 
 
 absent from the short stormy Session of 1629, 342. He retires from Public 
 Life, 343. His Occupations, 343. His Dislike to Physic, 343. Attempt 
 of his Friends to give him the Benefit of Medical Advice, 344. He meets 
 with an Accident, 344. Prosecution for a Libel upon him, 345. Coke 
 supposed to have advised Hampden to resist Ship-Money, 345. His 
 Papers seized by the Secretary of State when he was on his Death-bed, 
 346. His Death, 346. His Funeral, 346. His Epitaph, 347. His Ig- 
 norance of Science, and his Contempt for Literature, 347. His solitary 
 Joke, 348. His Greatness as a Lawyer and a Judge, 348. Coke as an 
 Author, 349. His Reports, 349. " Coke upon Littleton," 350. Second, 
 Third and Fourth Institutes, 351. His passionate Love of his Profession, 
 352. The Distribution of his Time, 353. His Style of Living, 353. His 
 Habits and Manners, 353. Contemporary Testimonies in his Favor, 355. 
 He is unjustly censured by Hallam, 355. Whether would you have been 
 Coke or Bacon ? 355. Part taken by Lady Hatton in the Civil War, 356. 
 Coke's Descendants, 357.
 
 CHANCERY I.ANE, THE TEMl'l.E, <iC. 
 (From an old Map of London.)
 
 LIVES 
 
 OF THB 
 
 CHIEF JUSTICES OF ENGLAND. 
 
 CHAPTER I. 
 
 LIVES OF THE CHIEF JUSTICES FROM THE CONQUEST 
 TO THE REIGN OF EDWARD I. 
 
 THE office of CHIEF JUSTICE, or CHIEF JUSTICIAR, 
 was introduced into England by William the Con- 
 queror from Normandy, where it had long ex- 
 isted. 1 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, 
 
 1 Of the two names "Justice " and " Justiciar," we have this account by 
 Spelman : " Justitia al. Justitiarius. Prior vox in juris nostri formulis, so- 
 lummodo videtur usitata, usque ad aetatem Henrici 3. altera jam se efferente, 
 hsec paulatim disparuit : sed inde hodie in vernaculo et juris annalibus Gal- 
 lico-Normancis ' a ' 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 Justitiarius pre- 
 vailed, and hence we now have the " Court of JUSTICIARY." See " Lives of 
 the Chancellors," vol. i. p. 5. 
 I. I
 
 a REIGN OF WILLIAM THE CONQUEROR. 
 
 and here they were disposed of by the voice of the ma- 
 jority of those who constituted this assembly. We do 
 find, in the Anglo-Saxon records, a notice of " Totius 
 Angliae Aldermannus," but such a creation seems to 
 have taken place only on rare emergencies, and we Jiave 
 no certain account of the duties intrusted to the person 
 so designated. 1 In Normandy the interference of the 
 supreme government was much more active than in Eng- 
 land, and there existed an officer called CHIEF JUSTIO 
 IAR, who superintended the administration of justice 
 over the whole dukedom, and on whom, according to the 
 manners of the age, both military and civil powers of 
 great magnitude were conferred." 
 
 Before William had entirely completed his subjugation 
 of England, eager 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 County Court (from which 
 the Bishop was banished) to the cognizance of petty suits, 
 preparatory to the establishment of the feudal system 
 in its utmost rigor, he constituted the office of CHIEF Jus- 
 TICIAR. His 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 REGIS, 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 
 
 1 Dugd. Or. Jur. ch. vii. Mad. Ex. ch. i. Spel. Gloss. " Justitia." Coke's 
 2nd Inst. ch. vii. 
 
 1 It is curious to observe that, notwithstanding the sweeping changes of 
 laws and institutions introduced at the Conquest, the characteristic differ- 
 cnces between Englishmen and Frenchmen, in the management of local af- 
 fairs, still exists after the lapse of so many centuries ; and that while 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- 
 ncnt.
 
 OFFICE OF CHIEF JUSTICIAR. 3 
 
 authority, and when the King was beyond seas (which 
 frequently happened) he governed the realm like a vice 
 roy." 1 He was at all times the guardian of the public 
 peace as Coroner-General, 1 and he likewise had a control 
 over the finances of the kingdom. 8 In rank he had pre- 
 cedence over all the nobility, and his power was greater 
 than that of alJ other magistrates.* 
 
 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 this period, the AULA REGIS was preserved, yet, for 
 convenience, causes, according to their different natures, 
 were gradually assigned to different committees of it, 
 to which may be traced the Court of King's Bench, the 
 Court of Common Pleas, the Court of Exchequer, and 
 the Court of Chancery. A distinct tribunal for civil 
 actions was rendered necessary, and was fixed at West- 
 minster by the enactment of MAGNA CHARTA " Com- 
 munia placita non sequantur curiam nostram, sed 
 teneantur in aliquo certo loco ; " but the suitors in 
 other causes 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 almost 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 ancJ power, but the identity of the office is to be 
 distinctly traced, and therefore it will be proper that I 
 
 1 Madd. 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 Justiciarius Regis Anglia, probably to distinguish 
 him from the King's Justiciar of Ireland, Normandy," &c. 
 
 *The Chief Justice of the King's Bench is still Chief Coroner of England. 
 
 3 It is supposed to be a remnant of this power, that, upon 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. 
 
 4 " Dignitate omnes regni proceres, potestate omnes superabat magistra- 
 tus." Spel. Gloss, p. 331. 
 
 5 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."
 
 4 REIGN OF WILLIAAf THE CONQUEROR. [1066. 
 
 should introduce to the reader some of the individuals 
 who filled it in its greatest splendor. 
 
 The first Chief Justiciar of England was ODO. The 
 beautiful Arlotta, the tanner's daughter of Falaise, who, 
 standing at her father's door, had captivated Robert, 
 Duke of Normandy, after living with him as his mis- 
 tress, bringing him a son, the founder of the royal line of 
 England, lamenting his departure for the Holy Land, 
 and weeping for his death, was married to Herluin, a 
 Norman knight, by whom she had three children. Odo, 
 the second of these, 1 possessing bright parts and an ath- 
 letic frame, was bred both to letters and to arms, and, 
 while he took holy orders, he still distinguished himself 
 in all knightly achievements. He was a special favorite 
 with his brother the young Duke, who made him at an 
 early age Bishop of Bayeux. Nevertheless he still con- 
 tinued to assist in the military enterprises 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-ived to wrest it from the perjured Harold, Odo 
 preached the crusade in the pulpit, and zealously ex- 
 erted himself in levying and training the troops. 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 i$th of October, 1066, he celebrated 
 mass in the Norman camp, wearing a coat of mail under 
 his rochet. He then mounted a gallant white charger, 
 carried a marshal's baton in his hand, and drew up the 
 cavalry, with the command of which he was intrusted. 
 In the fight he performed prodigies of 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, 
 
 1 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. 
 Ordcric. 255.
 
 1067.] ODO. 5 
 
 and in complete armor, but without any sword, and 
 bearing a staff only in his hand, with the superscription 
 " Hie Odo Epis. baculem tenens comfortat," as if he had 
 merely encouraged the soldiers. Although there might 
 be a decency in mitigating his military prowess in the 
 eyes of those whose souls he had in cure, there is no 
 doubt that on this day he acted the part of a skillful 
 cavalry officer and of a valiant trooper. 
 
 When the ceremony of the coronation was to take 
 place in Westminster Abbey, he wished to consecrate 
 the new monarch, and to put the diadem on his head ; 
 but, to soften the mortification of the English, and to 
 favor the delusion that the kingdom 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, and he asked the assembled multitude " if 
 they would have William for their King?" Odo, as a 
 reward for his services, received a grant of large posses- 
 sions in Kent, and was created Earl of that county. In 
 contemplation of the establishment of the AULA REGIS, 
 by the agency of which the Norman jurisprudence was 
 to be introduced into England, and Norman domination 
 perpetuated there, Odo was likewise appointed GRAND 
 JUSTICIAR. Like many ecclesiastics of that time, he 
 had attended to the Roman civil law and the learning of 
 feuds, as well as to the canon law ; and it was expected 
 that he would be useful not only in judicial proceedings, 
 but in the meetings of the national assembly, by which 
 the Conqueror thought of giving an appearance of legal- 
 ity to his rule. 
 
 This arrangement was highly successful ; and so quiet 
 did all things appear to be in England, that in the fol- 
 lowing 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 
 English nobility. Odo was left behind as Justiciar ; and 
 William Fitz-Osborne, 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-
 
 6 REIGN OF \VJLLIA.\r THE CONQUEROR. LI 068. 
 
 on chroniclers assert that he oppressed and insulted the 
 natives so as to drive them into rebellion. The result 
 was a general insurrection all over England, and William 
 was obliged to return and to reconquer the kingdom. 
 Odo was again most useful to him both in council and 
 in the field, and was confirmed in his office of Justiciar, 
 which he exercised for some years with undivided sway. 
 Henry of Huntingdon, after giving an account of Wil- 
 liam having put down all resistance, and of the splendor 
 of his court, enumerates among the grandees present 
 " Odo Episcopns Baiocensis, Justiciarius ct Princeps toiius 
 Anglia." 1 
 
 I find the report of only one cause tried before him, 
 Gundulphy Bishop of Rochester v. Pechot, Sheriff of Cam- 
 bridgeshire. The defendant had seized the land of Fra- 
 cenham in right of the King, and it was claimed by the 
 plaintiff in right of his Church. The King ordered the 
 trial to take place before Odo, the Grand Justiciar. He, 
 going to the spot, summoned a folkmote, 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 Justiciar, could not well preside, as he 
 was the party sued. Lanfranc, an Italian ecclesiastic, 
 having succeeded Stigand, the Saxon, as primate, com- 
 plained that the Earl of Kent unlawfully kept possession 
 of large territories, in that county, which of right be- 
 longed to the See of Canterbury. Geoffrey, Bishop of 
 Coutance, was specially appointed by the King to act as 
 Justiciar on this occasion. The trial took place in a 
 temporary court erected on Penenden Heath, and lasted 
 three days; at the end of which time judgment wa: 
 given for the Archbishop against the Earl.* 
 
 1 L. vi. p. 371. The Saxon Chronicle says, "Fuit (Odo) admodum potei . 
 Fpiscopus in Normannia et Regi omnium maxima fidelis. Habuit aute .1 
 comitatum in Anglia et quum Rex erat in Normannia fuit ille primus ;n 
 hac terra." Chron. Sax. p. 190. n. 20. 25. 
 
 s " Hanc cnim Vicecomes Regis esse terrain dicebat ; scd Episcopus, 
 enndcm S. Andreae potius esse affirmabat. Quare ante Regem venerunt 
 Rex vero pnecepit, ut omnes illius comitatus homines congregarentur et 
 eorum judicio cujus terra deceret rectius esse probaretur," &c. Ex Emulfi, 
 Hist, apud Angl. Sax., t. i. p. 339. 
 
 'The report of the case, one of the earliest to be found in our books, thus
 
 io82.] ODO. 7 
 
 Odo, however, was soon indemnified from the spoils 
 of the Anglo-Saxon nobles ; and being allowed, notwith- 
 standing heavy complaints against him, to retain his 
 office of Chief Justiciar, he amassed immense riches. 
 By turns he officiated as a prelate, celebrating mass in 
 the King's chapel, he sat as supreme judge in the AULA 
 REGIS, and he commanded the King's troops in put- 
 ting down insurrections. 1 Although scrupulous when 
 presiding on the bench, it is said that when intrusted 
 with a military command he thought it unnecessary to 
 discriminate between guilt and innocence ; he executed 
 without investigation all natives who fell into his hands, 
 and he ravaged the whole country. 2 
 
 After he had held his office of Chief Justiciar nearly 
 fifteen years, he quarreled with the King, by entering 
 into a mad enterprise which might have materially 
 weakened the Norman power in England. An astrolo- 
 ger had foretold that he should reach the papacy and 
 become sovereign of all Italy. The fortune of Guiscard, 
 in Sicily, had excited the most extravagant expectations 
 among his countrymen, and they openly boasted that 
 the whole of Europe would soon be under Norman rule. 
 Odo expected to gain his object, partly by corruption, 
 and partly by force of arms. Gregory, the reigning 
 Pope, was still in the vigor of manhood, but somehow a' 
 vacancy was to be occasioned, and was to be filled up by 
 the Bishop of Bayeux. With this view he bought a 
 stately palace at Rome ; he transmitted immense sums of 
 money to Italy ; and he induced Hugh, Earl of Chester, 
 
 begins : " De placito apud Pinendenam, inter Lanfraneum Archiopiscopum, 
 et Odonem Baiocensem Episcopum. Tempori Magni Regis Wilielmi qui 
 Anglicum regnum armis conquisivit, &c. Huic placito interfuerunt Gors- 
 fridus Constantiensis, qui in loco Regis fuit et Justiciam illam tenuit ; Lan- 
 francus Episcopus qui placitavit ; Comes Cantise, &c. et alii multi Barones 
 Regis et ipsius Archiopiscopi, et alii aliorum comitatuum homines etiam 
 cum isto toto comitatu, multi et magnse auctoritatis viri Francigenge scilicet 
 et Angli," &c. Ex Ernulfi, Hist. Apud Angl. Sax., t. i. p. 234. It was 
 clearly proved that, while Stigand was in disgrace, Odo had taken posses- 
 sion of many manors belonging to the Archbishopric. See the proceedings 
 at length in Selden's Spicilegium, p. 197. 
 
 ' " In secular! ejus functione, non solum rem exercuit judiciariam ; sed 
 bellis utique assuefactus exercitum Randulphi Comitis Estangliae, suorum- 
 que confsederatorum, profligavit ; et in ultione necis Walteri Dunelmensis 
 Episcopi, Northumbrian! late populatus est." Spel. Gloss, p. 337. 
 
 * Sim. 47. Malm. 62. Chron. Sax. 184. Flor. 639.
 
 8 REIGN OF WILLIAM THE CONQUEROR. [1087. 
 
 and a number of other Norman 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 the knowledge of the King. But William, 
 hearing of it before the fleet sailed, highly disapproved 
 of it, dreading that, after such a loss of treasure and 
 soldiers, the mutinous Anglo-Saxons might shake off his 
 yoke. He 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 jurisdiction ; whereupon William exclaimed, 
 " God forbid that I should touch the Bishop of Bayeux, 
 but I make the Earl of Kent my prisoner." The Earl- 
 Bishop was immediately sent over to Normandy, and 
 kept in close confinement there for five years among 
 many other state prisoners. 1 
 
 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 
 man, and to set at liberty the noble captives whom he 
 had long immured in the dungeons of Rouen. After 
 trying to justify their detention, partly on the ground of 
 their treasons, partly on the plea of necessity, he as- 
 sented to the request, but long insisted on excepting 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. Sax. 184. Flor. 641. Malm. 63. H. Hunt. 731. Angl. Sax. i. 
 855.
 
 io87-J ODO. 9 
 
 all speed to England to make advantage of the election 
 to the vacant throne. On condition of being restored to 
 all his vast estates in Kent, and to his office of Chiet 
 Justiciar, he agreed to support the claim of Rufus, and 
 assisted at the coronation of the new sovereign. 1 Ac- 
 cordingly, he presided in the sittings of the AULA REGIS 
 held at the Feast of Christmas, 1087, and the Feast of 
 Easter, 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 those who 
 held estates both in Normandy and in England could 
 not be safe unless both countries were ruled by the same 
 sovereign. The confederates immediately took the field, 
 expecting Robert to join them with a large army. Odo 
 intrusted his strong castle of Rochester to the care of 
 Eustace, Count of Boulogne, 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. 
 But Rufus, having detached a body of troops to lay siege 
 to Rochester, marched in person in pursuit of the Earl- 
 Bishop, shut him up within the walls of a castle on the 
 .sea-shore, and, after a blockade of seven weeks, com- 
 pelled him to surrender, Robert, with his usual giddi- 
 ness, having occupied himself with frivolous amusements, 
 instead of hastening across the channel to claim his 
 birthright. By the terms of capitulation, life and liberty 
 were granted to Odo, on condition that he should swear 
 to deliver 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 
 
 1 H. Hunt. lib. vii. p. 212.
 
 ro REIGN OF WILLIAM THE CONQUEROR. [1096. 
 
 wished to be disobeyed. The shrewd 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 the 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. Accordingly, 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. Knowing that, by the immunities of 
 churchmen, his life was safe, he muttered threats and 
 defiance ; but he was immediately put on board a ship 
 for Normandy, with a solemn admonition that, if he 
 ever again set foot on English ground, nothing should 
 save him from an ignominious death. 1 
 
 It was charitably hoped that, renouncing the pomps 
 of this world, he would pass the remainder of his days in 
 superintending his diocese, which he had long grievousl)' 
 neglected, and in seeking to make atonement by penance 
 for the irregularities of his civil and his military career ; 
 
 1 Chron. Sax. 195. Order. Vit. 668. Sim. 215. In Halstead's " Kent" 
 there is a drawing of his seal, on one side of which he appears as an Earl, 
 mounted on his war horse, clad in armor, and holding a sword in his right 
 hand ; but on the reverse he appears in his character of a Bishop, dressed in 
 his pontifical habit and pronouncing the benediction. In the former capac- 
 ity he left a natural son, who afterwards gained great renown in the court 
 of Henry I. In the latter he was celebrated for his munificence to the see 
 of Bayeux, which he filled about fifty years, rebuilding from the ground the 
 Church of Our Lady of Bayeux, furnishing it with costly vestments 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."
 
 io66.] WILLIAM FITZ-OSBORNE. n 
 
 but, after spending a short time at Bayeux, he could 
 endure a life of tranquillity no longer, 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 ;" 1 while 
 another, who had probably shared in his bounty, 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." 2 
 
 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-Osborne, for a short time associated in 
 the office, was related to the Dukes of Normandy both 
 by father and mother, and he had been brought up with 
 the CONQUEROR from infancy. Under his 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^f the Normans and the scourge of the 
 English." 8 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 
 
 1 Order. Vit. 255. 
 
 1 Pict. 153. 
 
 8 Pict. 151. Order. Vit. 203. Spelman says, "Acerrimus autem Anglo- 
 rum hostis fuit, et qui Normannise Ducem pne aliis omnibus, ad invasionem 
 Angliae excitavit, funestoque illo Hastingense prselio tertiam aciem duxit." 
 Gloss, p. 336.
 
 i* REIGN OF WILLIAM THE CONQUEROR. [107* 
 
 backed by the Princes of Wales, set his authority at de- 
 fiance, and continued, after various repulses, to make 
 head against 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 
 kingdom. Notwithstanding their general good under- 
 standing, differences would occasionally arise between 
 the Conqueror and this favored captain. It is related 
 that, on one occasion, Fitz-Osborne, being steward of 
 the household, or " Dapifer," had set upon the royal 
 table the flesh of a crane scarcely half roasted, when the 
 King, who in his old age was much of a gourmand, and 
 particularly prized crane when well cooked, in his anger 
 aimed a blow at him ; this was warded off by Eudo, 
 another favorite, but it so enraged Fitz-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, Bishop of Coutance, appointed Chief Jus- 
 ticiar for a special 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 Warrenne and Rich- 
 ard de Benefacta were jointly appointed to the office of 
 Chief Justiciar. The former, a countryman and com- 
 panion of the Conqueror, is chiefly noticed as being the 
 ancestor of the celebrated William de Warrenne \\ho 
 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 
 
 1 Order. Vit 218. Mad. Ex. i. 31-40. Wilm. Malm. 396-431. 
 
 " Gpisfridus Constanciensis Episcopus, in loco Regis fuit, et Justiciam 
 tennit in illo notabili placito apud Pinendene, inter Lanfrancum Archio- 
 j.i.coju:m Cantuar, et Odonem Comitem Cantii." Textus Ruff. f. 50.
 
 WILLIAM DE WARRENE. 13 
 
 the enterprise ; what he gained by the sword I will 
 maintain."* 
 
 How Richard de Benefacta came by this surname has 
 puzzled antiquaries. He was originally called Richard 
 Fitz-Gislebert, or Fitz-Gilbert, being the son of Gisle- 
 bert, or Gilbert, Count of Brion in Normandy. He 
 gained distinction at Hastings, and as a reward for his 
 bravery he received 8 lordships in Surrey, 35 in Essex, 
 3 in Cambridgeshire, 2 in Kent, I in Middlesex, 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- 
 
 1 The first William de Warrene died 1089, and was buried in the chap- 
 ter-house of a monastery he had founded at Lewes for monks of the Clu- 
 niac order. The following epitaph was engraved on his tomb : 
 " Hie Guilelmus Comes, locus est laudis tibi fomes 
 
 Hujus fundator, et largus sedis amator. 
 
 Iste tuum funus decorat, placuit quia munus 
 
 Pauperibus Christi, quod prompt^ mente dedisti. 
 
 Ille tuos cineres servat Pancratius haeres, 
 
 Sanctorum castris, qui te sociabit in astris. 
 
 Optime Pancrati, fer opem te glorificanti ; 
 
 Daque poli sedem, talem tibi qui dedit sedem." 
 
 It is reported that " this Earl William did violently detain certain lands 
 from the monks at Ely, for which being often admonished by the abbot, 
 and not making restitution, he died rri-erably ; and, though his death hap- 
 pened very far from the Isle of Ely, the same night he died, the abbot lying 
 quietly in his bed and meditating 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 4 REIGN OF WILLIAM RUFUS. [1087. 
 
 sidcred that in times of rebellion the Judges were to ex- 
 ercise martial law, or to disregard all law, according to 
 their own arbitrary will. 
 
 There is only one other Chief Justiciar recorded as 
 having served under the Conqueror; William de Ca- 
 rilcfo, or Harilegho, who was a pious priest, and fought 
 only with spiritual weapons. He was Abbot of St. 
 Vincent's in Normandy, and without having been in the 
 host which invaded England, or ever having put on a 
 hauberk (strange to say !), from the mere reputation of 
 his sanctity he was nominated to the bishopric of Dur- 
 ham. He was consecrated at Gloucester by the Arch- 
 bishop of Canterbury, in the presence of the King and 
 the assembled prelates of the realm. Simeon, having 
 described this ceremony, adds, " Erat acerrimus ingenio, 
 subtilis consilio, magnae eloquentia simul et sapientias." 
 He is much celebrated for the purity and impartiality 
 with which he administered justice when 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, who 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 with 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
 
 I099-] FLAMBARD. 15 
 
 cathedral, near the holy relics of St. Cuthbert ; and he 
 was, by his own desire, interred on the north side of the 
 chapter-house. But he himself was regarded as a Saint : 
 miracles were worked at his shrine ; and this continued 
 the cherished place of sepulture of succeeding bishops. 
 The monkish historians of Durham, in addition to enco- 
 miums on his piety, his liberality, his zeal for the rights 
 of the Church, his genius, and his learning, praise him 
 loudly for the simplicity of his manners, and the tem- 
 perance of his life. 1 
 
 Rufus's only other Chief Justiciar, in all respects a 
 contrast to his predecessor, was Ralph Flambard, the 
 " devouring Torch," who for some time held the Great 
 Seal, and whom I have consequently described in my 
 LIVES OF THE CHANCELLORS. To this work I must re- 
 fer such of my readers as would become acquainted with 
 his revolting atrocities and his edifying penitence. I 
 may add, that while he was Chief Justiciar the sittings 
 of the Curia Regis were first held in Westminster Hall. 
 The Saxon Kings had founded a monastery on a piece 
 of ground then surrounded by the Thames, and called 
 " Thorney Island." In relation to its direction from the 
 City of London, the metropolis of the kingdom, the new 
 foundation received the name of " West-minster ;" and 
 here a royal palace was erected, which was enlarged and 
 beautified by Edward the Confessor, but was still mean, 
 compared with the stately structures erected by the 
 Normans at Rouen. The Conqueror, although he ob- 
 served that it contained no hall in which the great coun- 
 cil of the nation could assemble, or in which justice 
 could conveniently be administered, had been too much 
 occupied with graver matters to supply the defect ; but 
 William Rufus built, adjoining to the palace at West- 
 minster, the magnificent hall which is looked upon with 
 such veneration by English lawyers, and which is the 
 scene of so many memorable events in English history. 
 This being completed at Whitsuntide, 1099, the Chief 
 Justiciar, Flambard, sat here in the following Trinity 
 term ; and the superior courts of justice have been held 
 in it for 750 years. The concentration thus established 
 
 1 Godwin de Prses. 731. Roger de Wendover, xi. 32. Will. Malm. 486.
 
 t 6 REIGN OF HENRY I. [noo. 
 
 has perhaps contributed to tne ascendency which Eng- 
 lish law and English lawyers have so long enjoyed. 1 
 
 It might have been expected that Henry I., who at 
 the commencement of his reign wished to make himself 
 popular by restoring Saxon institutions, would have 
 abolished or reformed the office of Chief Justiciar, of 
 which such heavy complaints had been made by the 
 natives; but he allowed it to remain in full vigor, and 
 he soon appointed to it the famous Roger, Bishop of 
 Salisbury, who rendered it more odious than it had ever 
 been before. The extraordinary vicissitudes of his 
 career, from his reading mass as a village curate in 
 Normandy till he was obliged to surrender his castle of 
 Devizes to King Stephen, and died miserably, I have 
 already recorded. 9 
 
 The only other Chief Justiciar of much note during 
 this reign was Ralph Basset, son of one of the compan- 
 ions of the Conqueror, and the founder of a family in 
 England of great distinction for many generations. 3 Of 
 his judicial exploits there is no record, except at a grand 
 assize which, during the King's absence in Normandy, 
 he held at Huncote in Leicestershire. Here he con- 
 victed capitally, and executed, no fewer than four score 
 and four thieves, and deprived six others of their eyes 
 and their virility ; drawing upon himself the imputation 
 of cruelty, and not escaping the suspicion that he was 
 influenced by a desire to enrich himself from the forfeit- 
 ures which were incurred. 1 He held the office for a 
 long period, and was much more praised for the vigor 
 
 1 Independently of the prestige attaching us to Westminster Hall, I would 
 caution my brethren against the desire, from some partial convenience, to 
 disperse themselves in separate bodies over different regions of the me- 
 tropolis. 
 
 'Lives of Chancellors, vol. i. ch. xi. 
 
 * Now represented by the Baroness Bassett. 
 
 4 A. D. 1124. "Toto hoc anno fuit Rex Henricus in Normanniil. Hoc 
 ipso anno, post S. Andreae festum tenuit Radulfus Bassett et Regis Theini 
 Procerum Concilium in Lethecaestrescire apud Hunde-hoge, et suspenderunt 
 ibi tot fures quot antea nunquam ; scilicet in parvo temporis spatio, omnino 
 
 jatuor et quadraginta viros. Sex item viros privarunt oculis et testiculis." 
 he writer goes on pathetically to describe the oppressed condition of his 
 countrymen under the Chief Justiciar. " Admodum gravis fuit his annus. 
 Qui quicquam honorum habeat, iis privatus erat per magna vectigalia, et 
 per iniquia decreta ; qui nihil habebat periit fame " Chron. Sax. ad attn, 
 1124.
 
 OLD WESTMINSTER 1IA1.L.
 
 r 1 5 4.] PRINCE HENR Y RICHARD DE L UCI. 1 7 
 
 lhan the clemency or justice with which he exercised its 
 'functions. 1 
 
 The Chief Justiciars of King Stephen were not men of 
 much renown 8 till the last who was no other than 
 Prince Henry, afterwards his successor, and so famous 
 under the name of Henry II. After the long struggle 
 for the crown of England between the daughter of Hen- 
 ry I. and him who pretended to be the heir male of the 
 Conqueror, it was at last settled that he should reign 
 during his life, and that her son by Geoffrey Plantagenet 
 should be immediately appointed Chief Justiciar, and 
 should mount the throne on Stephen's death. 8 I shall 
 not attempt to rival Lord Lyttleton by attempting a 
 history of this Chief Justiciar from his cradle to his 
 grave. I must content myself with saying that he held 
 the office above a year. During the first six months he 
 actually presided in the AULA REGIS, and, with the as- 
 sistance of the Chancellor and the other great officers of 
 state, decided the causes civil and criminal which came 
 before this high tribunal. He then paid a visit to the 
 continental dominions which he held in his own right 
 and in right of Eleanor his wife, extending from Picardy 
 to the mountains of Navarre. Sojourning in Normandy 
 when he heard of the death of Stephen, he was impa- 
 tient to take possession of the crown which had been 
 secured to him by the late treaty. A long continuance 
 of stormy weather confined him a prisoner in the haven 
 of Barfleur, but at last he reached Southampton, and, 
 being crowned King of England, the first act of his reign 
 was to appoint a new Chief Justiciar. 
 
 The object of his choice was Richard de Luci, a pow- 
 erful baron of a distinguished Norman family, who was 
 expected to govern the realm with absolute sway in 
 Henry's name. Although he long nominally retained 
 
 1 He was succeeded by his son Richard Basset, of whom I do not find any 
 more precise notice than by Ordericus Vitalis, who says, " Ricardus Basset, 
 cujus in Anglia, vivente Henrico Rege, potentia, utpote Capitalis Justitiarii, 
 magna fuit." Ord. Vit. ad ami. 1136. 
 
 3 Geoffrey Ridel, Geoffrey de Clinton, and Alberic de Vere. 
 
 8 "Anno Gratias 1153, qui est annus 18 regni Regis Stephani, pax Angliae 
 reddita est, pacificatis ad invicem Rege Stephano et Henrico Duce Nor- 
 rnanniae. Rex vero constituit Ducem Justiciarium Angliae sub ipso, et 
 omnia negotia per eum terminabantur. Et ab illo tempore Rex et Dux 
 unanimes erant in regimine Regni." Hoveden, voL i. p. 490. n. 20. 
 I. 2
 
 i8 REIGN OF HENRY II. [1162. 
 
 his office, 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 AlJLA REGIS, although 
 only sixth in point of rank of those who sat as judges 
 there, 1 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. 9 He 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. 1 
 
 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 
 
 1 " He came after the Justiciar, the Constable, the Mareschall, the 
 Seneschall, and the Chamberlain." Madd. Exch. c, ii. 
 
 * Madd. Exch. i. 146-701. 
 
 1 "Ric. de Luci Justiciarius Anglire, relicti Justiciaria potestate, factus est 
 Canonicus regularis in Abbatik de Lesnes quam ipse in fundo suafecerat." 
 fi. Hoveden, f. 337. <z.
 
 1 1 74-] RANULFUS DE GLANVILLE. 19 
 
 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 $oo, and, proving contumacious, was ordered to be 
 imprisoned. 1 
 
 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 L, at 
 Stratford, in the county of Suffolk ; his family was noble, 
 but I do not find any particulars of his progenitors. 1 
 He afforded a rare instance in those days of a layman 
 being trained as a good classical scholar, and being 
 initiated in all the mysteries of the feudal law. At the 
 same time he was a perfect knight, being not only famil- 
 iar with all martial exercises, but having studied the 
 art of manoeuvring large bodies of men in the field, 
 according to the most scientific rules then known. He 
 attached himself to several Chief Justiciars, 8 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. 4 
 
 During the year 1174, the 2oth of Henry II., he was 
 High Sheriff of Yorkshire, and in this capacity he con- 
 ferred greater glory on his country than any English- 
 
 1 Hoved. vol. ii. 494. n. I. 10. 20 ; 495. n. 10. 
 
 1 " Ranulph de Glanvilla fuit ver prseclarissimus genere, utpote de nobili 
 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 or 
 clerk of the court, although never in orders. 
 
 4 Madd. Exch. i. 297. (g\ 430. (6), 328. (/) ; ii. 183. (y\ 200. (f).
 
 ao REIGN OF HNRY II. [1174. 
 
 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 recrossed 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 thick
 
 U74.J RANULFUS DE GLANVILLE. ' 21 
 
 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, 
 resolved to proceed at all hazards, and his men gallantly 
 followed him. They proceeded some miles in darkness, 
 being guided by a mountain stream, which they thought 
 must conduct them to the level country. Suddenly the 
 mist dispersed, and they 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 a foray. 
 Perceiving his error, he was undismayed, and, calling 
 out " Noo it will be seen whilk be true knichts" 1 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 English, that they might be partakers in the 
 calamity of their sovereign. Glanville, prudently con- 
 sidering that he might be endangered by the reassem- 
 bling of the 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. 2 Alarmed by 
 
 1 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 now ringing with the fame of his miracles, and, by a 
 papal bull issued the year before, he had been declared a Saint and a Mar- 
 tyr, an anniversary festival being appointed on the day of his death " in
 
 22 REIGN OF HENR Y II. \\\ 74 
 
 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 
 r 1 ' -tance of three miles, discovering the towers of Can- 
 t rbury Cathedral, 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 to 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, "All 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." 1 
 
 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, he 
 should intercede with God for the clergy and the people of England." 
 * Newb. ii. 36. Gervase, 1427. Dalrymp. Annals, i. 129. R. Hoved. 529.
 
 ii8o.] RANULFUS DE GLANVILLE. 23 
 
 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. 1 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 Glanville, 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 fof 
 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, 
 
 1 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 constituti 
 ad audiendum clamores populi." 
 
 * See the authorities collected by Miss Strickland in her excellent Life of 
 Queen Eleanor.
 
 4 REIGN OF HENRY II. [1184, 
 
 was appointed to the office with sole and undivided 
 sway. 1 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 Blois in a letter to the 
 King: " If causes," said he, " are tried in the presence 
 of your Highness or your Chief Justiciar, then neither 
 gifts nor partiality are admitted ; there all things pro- 
 ceed according to the rules of judgment and justice ; nor 
 does ever the sentence or decree transgress the limits of 
 equity. But the great men of your kingdom, though 
 full of enmity against each other, unite to prevent the 
 complaints of the people against the exactions of sheriffs, 
 or other officers in any inferior jurisdictions, whom they 
 have recommended and 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. 8 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- 
 
 1 Diceto, 606. R. Hoved. 337. * Epistle 95. ad Hen. Regem. 
 
 8 A. D. 1184. " Eodem anno cum Gilbertus de Plumtun Miles nobili 
 prosapia ortus ductus esset in vinculis usque Wigorniam, et accusatus esset 
 de raptu coram Domino Rege a Ranulfo de Glanvilla Justiciario Angliae, 
 qui eum condemnare volebat, injusto judicio judicatus est suspendi in pati- 
 bulo. Rex pietate commotus przecepit custoditum manere ; sciebat enim 
 quod per invidiam fecerat hoec illi Ranulfus de Glanvilla, qui eum morti 
 tradere volebat propter uxorem suam. Sic itaque Miles ille a morte liber- 
 ntus usque ad obitum Regis fuit incarceratus." A'. Hoved. vol. ii. p. 622, 623.
 
 n88.] RANULFUS DE GLANVILLE. 25 
 
 tice, should have continued to employ, in a post of high 
 power and trust, one whom he had detected in attempt- 
 ing such an enormity. We need not doubt that the 
 punishment was mitigated on account of some extenu- 
 ating circumstances, which might have been brought 
 to the King's notice by the Judge himself. 
 
 Glanville continued to fill the office of Chief Justiciar 
 for five years longer ; and his judicial reputation still 
 went on increasing. He now composed and published 
 in Latin, " A Treatise on the Laws and Customs of 
 the Kingdom of England," which on some points is still 
 of authority, and which may be perused with advantage 
 by all who take an interest in our legal antiquities. This 
 author is to be considered the father of English juris- 
 prudence. Bracton, who wrote in the following century, 
 is more methodical and elegant, but he draws largely 
 from the Roman civil law, and is sometimes rather spec- 
 ulative ; while Glanville actually details to us the prac- 
 tice of the AULA REGIS, in which he presided, furnishes 
 us with a copious supply of precedents of writs, 1 and 
 other procedure then in use, and explains with much 
 precision the distinctions and subtleties of the system 
 which, in the fifth Norman reign, had nearly superseded 
 the simple juridical institutions of our Anglo-Saxon an- 
 cestors. The general reader may be amused by a trans- 
 lation of his PREFACE : 
 
 " The Majesty of the King should not merely be sup- 
 ported with arms to restrain rebels and to repel foreign 
 invaders, but ought likewise to be adorned with laws 
 for the peaceful government of the people. 2 May our 
 most illustrious Sovereign conduct himself with such 
 felicity both in peace and in war, by the force of his 
 right hand crushing the insolence of the proud and the 
 violent, and with the scepter of equity moderating his 
 justice to the humble and obedient, so that, as he may 
 be always victorious over his enemies, so he may on all 
 occasions show himself impartially just in the govern- 
 ment of his subjects! 
 
 1 It is curious to observe that his " Precipe quod reddat " and various 
 other writs, are precisely the same as those used in the reign of William IV. 
 when real actions were abolished. 
 
 * This commencement is imitated by Bracton, Fleta, and the Scottish 
 " REGIAM MAGISTRATUM."
 
 26 REIGN OF HENRY II. [1188. 
 
 " How vigorously, how skillfully, how gracefully our 
 most excellent King has conducted his arms and baffled 
 his foes is manifest to all, since his fame has now spread 
 over the whole world, and his splendid actions have 
 reached even the extremities of the globe. How justly, 
 how discreetly, and how mercifully he who loves peace, 
 and is the author of it, has conducted himself towards 
 his subjects is evident, since the Court of his Highness is 
 regulated with so strict a regard to equity, that none of 
 the judges have so hardened a front or so rash a pre- 
 sumption as to dare to deviate, however slightly, from 
 the path of justice, or to utter a sentence in any measure 
 contrary to truth. 1 Here, indeed, no poor man is op- 
 pressed by the power of his adversary, and the balance 
 of justice is not swayed by love or by hatred. Every 
 decision is governed by the laws of the realm, and by 
 those customs which, founded on reason in their origin, 
 have for a long time been established. What is still 
 more laudable, our King disdains not to avail himself of 
 the advice of such men (although his subjects) who, in 
 gravity of manners, in familiarity with the laws and cus- 
 toms of the realm, in wisdom and in eloquence, are 
 known to surpass others, and whom he has found by ex- 
 perience to use most despatch (as far as is consistent with 
 reason) in the administration of justice, by deciding diffi- 
 cult questions and ending suits ; acting now with more 
 severity, now with more lenity, as they see most expe- 
 dient.' 
 
 "The English laws, although not written, may, with- 
 out impropriety, be termed laws. Indeed, we adopt the 
 maxim, ' That which pleases the prince has the force of 
 law.'* But I refer more particularly to those laws which 
 evidently were promulgated by the advice of the nobles 
 and the authority of the prince. If from the mere want 
 of writing only they should not be considered as laws, 
 then, indeed, writing would seem to confer more author- 
 ity upon laws than either the authority of those framing 
 
 1 The writer seems not to have suspected the scandalous tales spread 
 abroad respecting himself and Sir Gilbert and Lady Plumpton. 
 
 * This is said to afford proof that our system of equitable jurisprudence is 
 to be traced to the Aula Regis. 
 
 1 Justin. Inst. li. t. 2. s. 6.
 
 uS8 J RANULFUS DE GLANVILLE. 27 
 
 them, or the equitable principles on which they are 
 framed. 
 
 "To reduce in every instance the laws and constitu 
 tiun of this realm into writing would in our times be 
 absolutely impossible, as well on account of the ignor- 
 ance of writers as of the confused multiplicity of enact- 
 ments. But there are some well established rules, which, 
 as they more frequently arise in court, it appears to me 
 not presumptuous to put into writing, to assist the mem- 
 ory and for general reference. A certain portion of 
 these I mean to submit to the reader in the following 
 work, purposely making use of a familiar style, and of 
 words which occur in legal proceedings. My object has 
 been not only to instruct the professional lawyer, but 
 such as are less accustomed to technical learning. For 
 the sake of perspicuity I have divided the present work 
 into BOOKS and CHAPTERS." 1 
 
 As a specimen I may give the proceedings in a suit for 
 land, leading either to " Trial by Battle," or the " Grand 
 Assize :" 
 
 " After three reasonable essoins, which accompany the 
 view of the land, both parties being again present in 
 court, the demandant shall claim in this manner : ' I de- 
 mand against this H. half a Knight's fee, or two plow- 
 lands, in such a vill, as my right and inheritance, of 
 which my father was seized in his demesne as of fee, in 
 the time of King Henry I., and from which he took the 
 profits to the value of $s. at least, in corn, hay, and other 
 
 ? reduce ; and this I am ready to prove by my freeman, 
 , to whom his father, when on his death-bed, enjoined, 
 by the faith which a son owes to his father, that if he 
 ever heard a claim concerning that land, he should prove 
 this as that which his father saw and heard.' 
 
 " The demand being thus made, it shall be at the elec- 
 
 1 Lord Coke says, " Ranulphus de Glanvilla, in the reign of King Henry 
 II., learnedly and profoundly wrote of part of the laws of England (whose 
 works remain extant at this day) ; and in the Preface he writeth that the 
 King did govern this realm by the laws of this kingdom, and by customs 
 founded upon reason and of ancient time obtained. By which words, 
 spoken so many hundred years since, it appeareth that then there were latts 
 and customs of this kingdom, grounded upon reason and of ancient time 
 obtained, which he neither could nor would have affirmed if they had been 
 so recently and almost presently before that time instituted by the Con- 
 queror." Preface to the 8th Rep, xviii.
 
 28 REIGN OF HENRY II. [1188. 
 
 tion of the tenant either to defend himself by the Duel, 
 or to put -himself upon the King's Grand Assize, and re- 
 quire a recognition ' which of the two has the greater 
 right to the land in dispute ?' But here we would ob- 
 serve, that after the tenant has once waged the Duel, he 
 must abide by his choice, and cannot afterwards put 
 himself upon the Assize. 
 
 " In the Duel, the tenant may defend himself either 
 in his own person if he choose so to do, or by any other 
 unobjectionable witness as his champion. But it fre- 
 quently happens that a hired champion is produced in 
 court, who, for reward, has undertaken the proof. If 
 the adverse party should except to such a champion, 
 alleging him to be an improper witness, from having ac- 
 cepted a reward, and that he is ready to prove this accu- 
 sation against the champion, this matter shall be tried, 
 and the principal duel shall be deferred. If upon this 
 charge the champion or the demandant should be con- 
 victed and conquered in the duel, then his principal shall 
 lose the suit, and the champion shall never from thence- 
 forth be admitted in court as a witness for the purpose 
 of making proof by duel for any other person. But, 
 with respect to himself, he may be admitted either in 
 defending his own body, or in prosecuting any atrocious 
 personal injury, as being a violation of the King's peace ; 
 and he may also defend by duel his right to his own fee 
 and inheritance." 
 
 The proceedings are described till at last we come to 
 the writ of possession : 
 
 "The King to the Sheriff of .greeting: I com- 
 mand you that without delay you give possession to M. 
 of half a knight's fee in the vill of- , in your baili- 
 wick, concerning which there was a suit between him 
 and H. in my court, because such land is adjudged to 
 him in my court by the duel. Witness," &c.' 
 
 I add the mode of proceeding in cases of treason : 
 
 " When any one is charged with the King's death, or 
 with having raised a sedition in the realm or in the 
 army, either a certain accuser appears, or not. If the 
 public voice alone accuses him, he shall be required to 
 give bail, or he shall be imprisoned. The truth of the 
 
 1 B. ii. ch. L iv.
 
 ii8S.] RANULFUS DE GLANVILLE. 29 
 
 charge shall then be inquired into in the presence of the 
 Justices, who weigh each conjecture that makes for, or 
 against, him. If on the trial by the ordeal a person is 
 convicted of a capital crime the judgment is of life and 
 members, which are at the King's mercy. 
 
 " Should, however, a certain accuser appear, and give 
 security to prosecute his plea and propound his charge, 
 that he had seen, or by other evidence could prove in 
 court, the accused guilty of having conspired against the 
 King's life, or having raised a sedition in the realm or in 
 the army, and the accused on the other hand deny every 
 thing the other had asserted, it is usual to decide the 
 plea by the Duel. And here it should be observed, that 
 from the moment the duel is waged neither party can 
 add or diminish any thing from the words employed in 
 waging the duel, or in any other measure decline or re- 
 cede from his undertaking, without being held as con- 
 quered, and liable to the penal consequences of defeat. 
 Nor can the parties be afterwards reconciled to each 
 other by any other mode than the King's license or that 
 of his justices." 1 
 
 It is said that Glanville drew up this compendium of 
 the laws of England for the public use by the command 
 of Henry II. 11 It remained in MS. till the year 1554, 
 when it was first printed at the instance of Sir William 
 Stanford, a grave and learned judge of the Court of 
 Common Pleas.* Its merits have been very generally 
 acknowledged. Dr. Robertson, in his observations upon 
 the early part of the I2th century, says, "that in no 
 country of Europe was there at that time any collection 
 of customs, nor had any attempt been made to render 
 law fixed : the first undertaking of that kind was by 
 Glanville, Lord Chief Justice of England, in his Tractus 
 de Legibus et Consuetudinibus, composed about the year 
 1189.'" Lord Coke thus assigns the reason for giving a 
 
 1 Book xiv. c. 1. The most recent instance we have of a duel of this sort 
 is that between Henry of Bolingbroke and Thomas Mowbray, Duke of 
 Norfolk, which is very graphically described in the first act of Shakespeare's 
 play of Richard II. 
 
 * Madd. Exch. 123. z 4 Inst. 345. n. 
 
 4 Charles V. vol. i. p. 296. The historian, however, seems to have over- 
 looked the " Assizes of Jerusalem," composed in 1099 ; highly valued by 
 Lord Loughborough and by Gibbon.
 
 30 REIGN OF HENR Y II. [i iSS. 
 
 valuable sketch of Glanville's life, " in token of my 
 thankfulness to that worthy Judge for the fruit which I 
 confess myself to have reaped out of the fair fields of his 
 labors. I will, for the honor of him, and of his name, 
 and posterity which remain to this day, impart and pub- 
 lish, to all future and succeeding ages, what I have 
 found of great antiquity and of undoubted verity." 1 
 
 Some, I am well aware, have lately attempted to de- 
 prive Glanville of the honor of the authorship of the 
 treatise which had so long passed under his name ; but, 
 in suggesting that it must have been written by an ec- 
 clesiastic employed by him, they appear to have little 
 other reason beyond the assumed incompetency of one 
 who was a layman and a warrior to write it ; and they 
 forget the manners of the age when they object to a 
 grave and learned judge throwing off his robes and lay- 
 ing aside his pen, to put on a coat of mail and to grasp 
 a spear.* 
 
 Glanville continued with energy to exercise the func- 
 tions of his office in preserving the peace of the king- 
 dom, as well as in presiding in the AULA REGIS. In 
 the year 1181, the Welsh, during the King's absence in 
 Normandy, having made an incursion into England, and 
 
 1 " Ne reverendissimo illi judici videar ingratus pro fructu quern ex pul- 
 cherrimis ejus operum arvis me colegisse confiteor, in honorem ejus, et 
 nominis, et nobilis hodie florentis, in secula futura emittere, et in medium 
 proferri, visum est, quae magnse fore vetustatis et exploratse veritatis sae- 
 pissime sum expertus." Preface to 8th Rep. xviii. 
 
 Spelman says, " Hie cum ad suam usque setatem (instar rhetrarum Ly- 
 curgi) aypatfof id est non scripta mansisset, maxima pars juris nostri ; omnium 
 primus fyypafyav reddere aggressus est, composito illius argumenti libro quo- 
 dam, cui in antiquis MSS. isle titulus Tractatus de legibus et censuetudinibus 
 Regni Anglia:, tempore Regis Henrici II. compositus, justitia gubernacula 
 tenente illtistri viro Ranulpho de Glanvilla, Juris Regni et Antiquarum con- 
 suetndinum to tempore peritis si mo" Gloss, p. 338. 
 
 9 The objection hardly deserves notice, which arises from the title-page in 
 the most ancient MS. copy of the work, saying, that it was written in the 
 time of Henry II., " the illustrious Ranulph de Glanville, who, of all in 
 those days, was the most skilled in the law and ancient customs of the 
 realm, then holding the helm of justice." It is truly observed that he 
 would not thus have praised himself, but the title-page is evidently the 
 composition of a later age. Hoveden evidently considered Glanville the 
 author of the book which goes by his name, and probably thought that the 
 learning and ability which it displays contributed to his elevation, thus 
 narrating his appointment as Chief Justiciar: " Henricus Rex Angiiae 
 pater, constituit Ranulphum de Glanvilla suum Justiciarium totius Angliae 
 cujus sapientia conditse sunt leges subscripts quas Anglicanas vocairas."
 
 u86.J RAtfULFUS DE GLANVILLE. 31 
 
 killed Ranulfus de Poer, Sheriff of Gloucestershire, the 
 Chief Justiciar, as guardian of the realm, drew together 
 an army, marched against the mountaineers, and drove 
 them back to the woods and fastnesses of their own 
 country. 1 A partisan warfare was kept up between the 
 two nations for some years, till at last Glanville was sent 
 by Henry to treat with Rees ap Gryffith, and the other 
 chiefs of South Wales, not only for the purpose of fin- 
 ishing the war, and bringing back those who were called 
 rebels to their fealty, but likewise for retaining a body 
 of their foot to serve in the English army against Philip, 
 King of France. Glanville's mission was in all respects 
 most successful. He perceived, as Lord Chatham did 
 with respect to the Scotch Highlanders six centuries 
 afterwards, that the best way of preventing them from 
 annoying England was to employ them against for- 
 eigners, and that they would be faithful in proportion as 
 they themselves were trusted. The Welsh very readily 
 agreed to keep within their ancient boundaries, and to 
 acknowledge Henry as their sovereign liege lord ; they 
 furnished a body of auxiliaries, who served with high 
 reputation against his enemies on the continent ; and a 
 basis of conciliation was established, .which subsisted till 
 Edward I. determined to crush the Princes of Wales, 
 and to bring the whole principality under his own im- 
 mediate rule.* 
 
 As an acknowledgment of Glanville's services, civil 
 and military, there was now conferred upon him the ad- 
 ditional dignity of Dapifer." 
 
 The only other important affair, during the present 
 reign, in which the Chief Justiciar is stated to have been 
 concerned, was a dispute between the King and the 
 monks of Canterbury. As they collected immense riches 
 from the miracles of St. Thomas, Henr,y had attempted 
 to establish a rival foundation near this city ; and, that 
 they might preserve their monopoly, they prevailed on 
 Pope Urban III. to send him an apostolical mandate, 
 ordering him to put a stop to the building. 
 
 Supported by the present Archbishop of Canterbury, 
 much more obsequious than his sainted predecessor, he 
 
 1 Benedict. Abbas, ad. ann. 1181. 
 
 1 Benedict. Abbas, ad. ann. 1185, 1186. * Madd. Exch. i. 24.
 
 32 REIGN OF HENRY II. [1186. 
 
 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 ecclesiastical court under the Pope's author- 
 ity, were about to issue 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 you 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. 1 
 
 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 toqk 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 or of any other person." Subprior. 
 " Saving the interests of our monastery, and the rights 
 of the Church, we are ready to submit to the King ; but 
 we are greatly deterred from implicitly 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 
 
 1 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 
 extant
 
 w
 
 1 1 88.] RANULFUS DE GLANVILLE. 33 
 
 them, would certainly do you justice." Subprior. "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." Glanville, 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 3<Dth 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
 
 34 REIGN OF RICHARD I. [1189. 
 
 children and grandchildren the objects of his tender at- 
 tachment 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 solemn 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 able to 
 equip himself and the knights whom he meant to take in 
 his train, without following the general example of 
 selling or mortgaging his lands. But the young princes 
 engaged in another unnatural rebellion, and the King 
 laid his commands on the Chief Justiciar to delay his 
 journey till tranquillity should be restored. Before this 
 consummation, the unhappy Henry expired at Chinon 
 of a broken heart. 
 
 Glanville was present at the scene when, on the ap- 
 proach of Richard, blood gushed from the dead body, in 
 token, according to the superstition of the age, that the 
 son had been the murderer of the father. The new 
 monarch, now stung with remorse, renounced all the 
 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 misgivings as to the sincerity of Richard, 
 and 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 of the office for some weeks, till a successor might 
 be appointed ; 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- 
 sacre 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 9 o.] RANULFUS- DE GLANVILLE. 35 
 
 prisoner, and who, being now set at liberty, was destined 
 to be Regent of the kingdom. 1 
 
 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." He 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. 3 
 
 Of Glanville's numerous offspring, only three daugh- 
 ters survived him. They were married to great nobles ; 
 
 1 Richard of Devizes says, " Ranulfus de Glanvilla, regni Anglorum rec- 
 tor et regis oculus, depostatus et custodiaa traditus, ire saltern sibi liberum et 
 redire redemit quindecim mille libris argenti, et cum hoc nomen Glanvilla 
 tanta fuisset die przeterito, nomen scilicet super omne nomen, ut quisque, 
 cui concessum esset a Domino, loqueretur inter principes et adoraretur a 
 populo, proximo mane non superfuit unus in terra qui vocaretur hoc nomine. 
 Ranulfus de Glanvilla, quo multus fuerat suo tempore desertior dum prae- 
 potuit, privatus jam factus ex principa, in tantum hebuit prse dolore, ut 
 gener ejus Radulfus de Ardenna ejusdem oris ratione deperderet quicquid 
 oris ejus judicio fuerat consecutus." (pp. 7, 8.) But this chronicler, like 
 some of his successors, is much given to exaggeration, and sacrifices ac- 
 curacy for effect. See Hoveden, iii. 20-35. 
 
 * Richard of Devizes, after stating that Baldwin, Archbishop of Canter- 
 bury, and Ranulf de Glanville, with others, had been sent forward by the 
 Kings of France and England with a powerful army, adds, " ex quibus 
 Baldewinus archepiscopus et Ranulfus de Glanvilla obierunt in obsidione 
 civitatis, quam Latini Acras, Judaei Accaran dicunt, dum ad hue reges in 
 Sicilia morarentur." Ricardus Divisiensis, de Rebus gestis Ricardi Primi, 
 p. 19. 
 
 In Stowell v. Lord Zouch, Plowden 368, b., where Catline, C. J., in citing 
 the authority of his great predecessor, says, " Glanville was a judge of this 
 realm a long time ago, for he died in the time of King Richard I. at the 
 city of Acres in the borders of Jury." 
 
 Lord Coke merely says, " Provectiori setate ad Terrain Sanctam propera- 
 vit, et ibidem contra inimicos crucis Christ! strenuissime usque ad necem 
 dimicavit." Preface to 8th Rep. xviii. 
 
 Spelman says, " Exutus autem est officio Justitiarii anno I. Ricardi I. et 
 deinde profeetus in Terrain Sanctam in obsidione Aeon moriturus est." 
 Gloss, p. 338. 
 
 This celebrated siege lasted two whole years, and Acre held out till after 
 the arrival of Richard I. in the summer of 1191, when he performed the 
 prodigies of valor which placed him at the head of crusading chivalry.
 
 36 REFGN OF RICHARD /. [1153. 
 
 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 I7th century; 
 and the name of Glanville, although now without a liv- 
 ing representative, will ever be held in honored remem- 
 brance by Englishmen. 1 
 
 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 resignation 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 prelate 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 moral character, 
 evidenced by his having three illegitimate sons by as 
 many mothers. The bishop elect 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 
 
 1 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.
 
 u8 9 .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 Lateran 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 years of his life. On the death 
 of Henry II., 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 girding 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 \vas 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, must be 
 associated with him in the office of Chief Justiciar. 
 Pusar, having in vain remonstrated, came to the com- 
 promise that England should be divided between the
 
 38 REIGN OF RICHARD I. [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 the whole kingdom ; but at last 
 made himself so odious, that Longchamp marched a 
 small military force to the north, deposed him entirely 
 from the Chief Justiciarship, deprived him of the Earl- 
 dom of Northumberland, made him prisoner, and kept 
 him in close custody till he gave hostages to deliver up 
 all the castles committed to his charge. He appealed to 
 Richard, now performing prodigies of valor in the East ; 
 and that monarch wishing, or pretending to wish, to do 
 him justice, sent letters ordering him to be restored : 
 but these were entirely disregarded by Longchamp. 
 The ex-Chief Justiciar died unredressed and unpitied, 
 affording (as it was said) a fine illustration of the text 
 of Scripture, " No man can serve God and Mammon." 1 
 
 William Longchamp, who, uniting in himself the 
 offices of Lord Chancellor and Chief Justiciar, ruled 
 England during the absence of Richard 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- 
 villc, 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 for some time 
 
 1 " Ranulphus de Glanvilla Regni Procurator, cum jam grandsevus esset 
 et videret a Rege novitio multa minus consulte et improvide actitari, 
 solemniter renuncians officio, Dunelmensem Episcopum habuit successorem, 
 qui nee obluctans injunctum a Rege suscepit officium ; sed si proprio fuisset 
 contcntus officio, divini juris multo decentius quam humani Minister extitis- 
 set, cum nemo possit titrique prout dignum est deservire, secundum illud 
 Dominieum, Non potrstis Deo scrvire et Mammona" Chron. Walt. Hem. 
 ch. 48. See God. Prnes. 753. Roger de Wendover, ii. 298.; cxi. 8 15. 
 
 ' Lives of Chancellors, vol. i. ch. v. 
 
 1 The Rolls of the Curia Regis held before the Chief Justiciar, from the 
 6 Richard I. iit)4, have been published by the Record Commissioners. Sir
 
 ir 93-] WALTER HUBERT. 39 
 
 gave great disturbance to his government. William 
 Fitz-Osbert, a citizen of London, being bred to the 
 law, is denominated " legis peritus," although he pos- 
 sessed but a very small portion of learning ; he was of 
 a lively wit, and surpassing eloquence ; and he is the 
 earliest instance recorded in England of a man trying 
 to raise himself by popular arts. His stature being 
 mean, he endeavored to give importance to his looks by 
 nourishing his beard, contrary to the custom of the 
 Normans. Hence he was generally called "Willyam- 
 wiih-the-longe-berde" Although of Norman descent, he 
 pretended to take part with the Anglo-Saxons, and to 
 be their advocate. The dominant race settled in Lon- 
 don had a town of their own, " Ealdormannabyrig," 
 s;ill known as the ALDERMANBURY ; 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, although 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, I would lay out forty marks to 
 purchase a chain in which the King and the Chancellor 
 might be hanged together. Would that the King might 
 always remain where he now is ! And come what will, 
 in London we never will have any other king except 
 
 Francis Palgrave, in his introduction to them, says, in very striking lan- 
 guage, " Comparing these records with the commentary furnished by the 
 Year Books, and, lastly, opening the volumes of the reporters properly so 
 called, we could if human life were adequate to such a task exhibit what 
 the world cannot elsewhere show, the judicial system of a great and power- 
 ful nation running parallel in development with the social advancement of 
 the people whom that system ruled." The rolls of the Curia Regis are not 
 so interesting 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 th 
 judgment.
 
 40 REIGN OF RICHARD I. [1193. 
 
 our mayor, Henry Fitz-Ailwin, of London Stone." 
 The appellee pleaded not guilty ; and, availing himself 
 of his privilege as a citizen of London to defend him- 
 self by compurgation, many respectable persons came 
 forward to attest their belief in his innocence ; and he 
 was acquitted. Longbeard complained bitterly that 
 Hubert, the Chief Justiciar, had decided the cause cor- 
 ruptly ; and, returning to the patriotic side, he now con- 
 trived, by inveighing against Norman oppression, to 
 raise an insurrection against the Government, 52,000 
 citizens enrolling themselves as his adherents. He 
 likewise called a folkmote in St. Paul's Churchyard, and 
 here delivered a forcible and captivating discourse to 
 the assembled people, inviting them to adhere to him 
 steadily as the protector of the poor and the vindicator 
 of their ancient rights. For some time he set the Gov- 
 ernment at defiance, but his popularity rapidly declin- 
 ing, Hubert, the Chief Justiciar, sent out a body of 
 troops into the City to apprehend him. After a slight 
 skirmish, he was obliged to take refuge in the church of 
 St. Mary-le-Bow, and he retired to the lofty spire, in 
 which he proposed to stand a siege. The Archbishop, 
 having in vain sent him a summons to " come out and 
 abide the law," thought that he might use a freedcm 
 with his own church which would have been sacrilege in 
 a layman, and directed that the structure should be set 
 on fire. Longbeard was obliged to abandon his strong- 
 hold, and, attempting to escape, he was secured, bound 
 with fetters and manacles, and carried to the Tower of 
 London. Here an extraordinary sitting of the AULA 
 REGIS was held ; and the " proceres," or more wealthy 
 citizens of London, being called in as a jury, or as asses- 
 sors, they advised that he should be condemned to in- 
 stant death. Sentence was immediately pronounced, 
 and executed with great barbarity. Stripped naked, 
 and tied by a rope to a horse's tail, Longbeard was 
 dragged over the rough streets and flinty roads to Ty- 
 burn, where his lacerated and almost lifeless carcass, 
 after the infliction of many cruelties, was hung in 
 chains. 1 
 
 1 Rot. Cur. Regis, vol. i. 69. 95. Hoveden, 668. 765. Neubrigensis, 557. 
 *6a. Diceto. 691. M. Paris, 181. Gervasius, 1591. Knyghton, 1412. Sil
 
 M 96.] WALTER HUJ3ERT. 41 
 
 Hubert thus acquired a temporary triumph ; but his 
 violation of the right of sanctuary, and the outrage he 
 had committed on a church of uncommon sanctity, 
 caused great scandal, and afterwards led to his own fall. 
 The clergy, as a body, took up the matter, partly from 
 religious feeling, and still more from envy towards the 
 Archbishop ; and the monks of Canterbury in particular 
 complained to the Pope that their Archbishop acted as 
 a Justiciar, sitting as a judge in capital cases whereby 
 he not only broke the canons forbidding ecclesiastics to 
 meddle in affairs of blood, but was so entirely engrossed 
 in secular pursuits that all his ecclesiastical duties were 
 entirely neglected and cast aside. They concluded their 
 accusation with a statement how, " contrary to all the 
 privileges and immunities of Holy Church, he had vio- 
 lated the sanctuary of St. Mary-le-Bow, whence William- 
 -with-tkc-Loud-Berde was forcibly taken, condemned to 
 death, and hanged on the tree." The Pope addressed a 
 mandate to Richard, requiring him, as he tendered his 
 soul's health, to remove the Archbishop from the Justi- 
 ciarship. This would have been quite enough to satisfy 
 the petitioners ; but to the great mortification of the 
 hierarchy, his Holiness furthermore enjoined the King 
 thenceforth to abstain from employing any prelate in 
 secular affairs, and he addressed a concurrent mandate 
 to the prelates strictly prohibiting them from accepting 
 employments so uncongenial to their station in the 
 Church. The King obeyed, and Hubert was deposed 
 from the Chief Justiciarship ; but the general regulation 
 produced very little fruit, for the grasping Archbishop 
 contrived to obtain a high civil office in the next reign, 
 and ecclesiastical ambition soon became more rampant 
 in England than it had ever been. 1 
 
 King Richard appointed, in Archbishop Hubert's 
 
 Francis Palgrave, in his Introduction to the Rotuli Curice Regis, quotes an 
 authority which I have not seen, " Annals of London contained in Liber de 
 Antiquis Legibus, MS.," describing " how the Heretyke called With-the- 
 Longe-Berde was drawen and hanged for heresye and cursed doctryne that 
 he had thoughte." From this it would appear that the Archbishop had at- 
 tempted to give a religious turn to the affair, and excuse his own sacrilege 
 by imputing heresy to his victim. 
 
 1 Lives of Chancellors, vol. i. ch. vi. Gervasius, 1614. Hoveden, 779. 
 M. Paris, 193.
 
 42 REIGN OF KING JOHN. [1202. 
 
 place, GEOFFREY FITZPETER, a powerful Baron, with 
 great possessions both by inheritance and marriage; 
 and, like Glanville, well skilled in the laws and customs 
 of the realm. He had acted as a Justice of the Forest, 
 as a Justice Itinerant, and as a Puisne Judge in the 
 Aula Regis. 1 He was at the same time Sheriff of the 
 united counties of Hertford and Essex, in which he 
 held many manors. His military talents were likewise 
 distinguished. The contemporary chroniclers inform us 
 that, as soon as he was appointed " Proto-Justiciarius 
 Angliae," he led a powerful army against the Welsh and 
 entirely defeated the restless Gwenwynwyn, who had 
 besieged the English garrison placed by William de 
 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 to 
 have been killed by the erring shaft of a fellow 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 luduin suum. In n 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 
 taste, if we may judge from his having purchased one 
 from the King at the extravagant price of four tunels of 
 wine." 1 Withal he must have been a ban vivant, for we 
 are told that he paid a penalty for breaking the canons 
 of the Church by eating flesh on fast days. 4 
 
 However, neither by the great nor the agreeable quali- 
 ties which he possessed could he long retain the favor of 
 
 1 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. 
 
 1 Hoveden, 780, 781. Gervasius, 164, 165. R. de Diceto, 703. 
 
 1 Foss's Judges of England, vol. ii. 64., cites I Rot. de Freest. 7 John. 
 Cole's Documents, 272, 275. Mad. Exch. i. 462. Rot. de Fin. 6 John, 243. 
 
 4 Rot. Misae. 14 John. Cole's Dor 248.
 
 1202.] GEOFFREY FITZPETER. 4.3 
 
 the capricious tyrant on the throne : and, having in vain 
 remonstrated against the course of policy which pro- 
 duced such disasters, he resigned his office. Till the 
 year 1213 he remained in a private station. Then he 
 was reappointed, at the request of the Barons, in the 
 hope that he might put an end to the confusion and 
 misery in which the kingdom was involved. All ranks 
 submitting willingly to his sway, he had wonderful suc- 
 cess in restoring order and the due administration of 
 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 Justiciar 
 died suddenly in the following year. When the King 
 heard of his death, he laughed loudly, and said, with a 
 profane oath, " Now I am again King and Lord of Eng- 
 land I" 1 
 
 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 persona, 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 Cceur de Lion. The trial is represented 
 as having been conducted with great fairness ; for the 
 
 1 " Accepto ver6 de morte ejus nuncio, Rex cachinnando dixit : ' Per pedes 
 Domini, nunc primo sum Rex et Dominus Anglise.' " M.par. in. ann. 1214. 
 
 8 " Erat autem firmissima Regni columna ; utpote vir generosus, legum 
 peritus, thesauris, reditibus et omnibus bonis instauratus, omnibus Anglioe 
 Magnatibus sanguine vel amicitia confcederatus. Unde Rex ipsum pne 
 omnibus mortalibus sine delectione formidabit : ipse enim lora regai guber- 
 nabat. Unde post ejus obitum, facta est Anglia quasi in tempe.uate navit 
 sine gubernaculo." M. Pans.
 
 44 REIGN OF KING JOHN. [1213. 
 
 doctrine was admitted, " Pater est quern nuptiae demon- 
 strant," subject to the exception of the absence of the 
 husband extra quatuor maria, and it was satisfactorily 
 shown that at the time to which the eldest son's origin 
 must by the laws of nature be ascribed, while Lady 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 Cceur 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 RlCH- 
 ARD PLANTAGENET. 1 
 
 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. 8 
 
 John's intervening Chief Justiciars, Simon de Pate- 
 shull, Eustace de Fauconberg, Richard de Mucegos, Wal- 
 ter de Crespiny, and Saherus, 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, 3 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 I., by whom 
 he was knighted. Although, by his education and 
 habits, better qualified to cojmmand 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. 4 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, 
 had 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. 
 
 1 Dug. Bar. i. 703. See Roger de Wendover, cxi. 49 273. 
 
 1 Sometimes called "Des fioches." 
 
 * This commission is still extant : " Rex Archiepiscopis, &c., Consti uimas
 
 I22I.J PETER DE RUPIBUS. 45 
 
 elevation caused much envy, which he was at no pains to 
 soften ; and on this occasion he remained but a short 
 time in office, although he showed vigor and ability. 1 
 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 
 as 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 
 his 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 loss of the 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 with 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 employ- 
 
 Justitiarium nostrum Angliae P. Winton. Episcopum quamdiu nobis pla- 
 cuerit ad custodiendum loco nostro terrain nostram Anglioe et pacera regni 
 nostri. Ideo vobis mandamus quod ei tanquam Justic. nostro Angliae 
 intendentes sitis et respondentes. Dat." &c. 
 
 1 Diu non duravit in officio : prudens autem et potens." Spel, Gloss. 340
 
 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 Bacon, 
 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 
 had himself made many voyages to distant parts," Roger 
 replied, " Sir, he who steers a trireme, and he who steers 
 the vessel of the state, should, above all things, beware 
 of stones and rocks, or ' Petrae et Rupes."' Hubert da 
 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. 1 
 
 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 
 
 1 Spelman who had examined all the chronicles, is obliged to say in gen- 
 eral terms, " Exacto munere Terram Sanctam cruce-signatus proficis;itur. 
 Malta illic ejus auspiciis gesta sunt feliciter." Glass, p. 346. 
 
 * M. Paris, 265.
 
 1238.] HUBERT DE BURGH. 47 
 
 unwillingly gave the royal assent, " That all foreigners 
 holding office under the Crown should be banished the 
 realm." They went so far as to declare " that if the 
 King did not immediately dismiss his foreigners they 
 would drive both him and them out of the kingdom, 
 and put the crown on another head more worthy to wear 
 it." 1 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 provided 
 
 1 M. Paris, 265.
 
 i8 REIGN OF HENR Y III. [i 238. 
 
 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- 
 berlain ; 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- 
 mortal dramatist of the character of Hubert de Burgh, 
 whom he represents with a very tender heart, but who 
 is made to say, when solicited to rid the usurper of the 
 " serpent in his way," " He shall not live ;" and who, 
 deliberately and seriously makes preparations for put- 
 ting out the poor young Prince's eyes with hot irons. 8 
 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, 
 
 1 One of the earliest notices of him in our records is, that he was surety 
 to the Crown for Petrus de Maillai, who agreed to pay 7000 marks, " pro 
 habenda in uxorem Ysabellam filiam Roberti de Turneham cum jure suo," 
 &c. Mad. Exch. \\. 211. 
 
 1 Rot. Chart, i John, 3036. 
 
 1 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 compassion 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 sworh, and I did purpose, boy, 
 With this same very iron to burn them out." 
 
 King John, act tv. sc i.
 
 122 1. J HUBERT DE BURGH. 49 
 
 he condescended to act as Sheriff of several English 
 counties, being 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 Barons, Hubert remained faithful to his master, but 
 gave him good advice, and tried to instil into him some 
 regard for truth and plighted faith. Being present with 
 him at Runnymede, he prevailed upon him to sign the 
 Great Charter, and he afterwards sincerely lamented the 
 violation of its provisions. 
 
 Though praised warmly by historians for his open and 
 straightforward conduct, I am afraid that he was seduced 
 into duplicity and intrigue by his desire to obtain the 
 office of Chief Justiciar, the darling object of his am- 
 bition. He professed much friendship for Peter de 
 Rupibus, 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. He 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 AULA REGIS, when his functions were determined 
 by the King's miserable death in the Castle of Newark. 
 
 For the first three years of the new reign, the office of 
 Chief Justiciar was superseded by the appointment of 
 the Earl of Pembroke, the Earl Marshal, 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 de Rupibus, who was intrusted 
 with the education of the young king. 1 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. Paris, 247-251. Waverley, 183. Gul. Armor, qo.
 
 S o REIGN OF HENRY III. [1224. 
 
 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. 1 
 
 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 
 
 1 Dr. Lingard gives, from the contemporary chronicles, the following 
 graphic account of " an event which established the authority of Hubert, 
 and induced his rival to banish himself from the island under pretense of 
 making a pilgrimage. Among the foreigners enriched by John, was a fero- 
 cious and sanguinary ruffian named Fawkes, who held the castle of Bedford 
 by the donation of that monarch. At the assizes at Dunstable, he had been 
 amerced for several misdemeanors in the sum of ^3000 ; but, instead of 
 submitting to the sentence, he waylaid the judges at their departure, and, 
 seizing one of them, Henry de Brinbrook, confined him 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 their free tenants. Two 
 towers of wood were raised to such a height as to give the archers a full 
 view of the interior of the 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 foundations. 
 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 pos- 
 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 the tower, and sent the women to implore the King's mercy. 
 But Hubert resolved to deter men from similar excesses by the severity 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 the 
 island, together with his wife and family." See M Paris 370 Dunst. 142- 
 145. New Rym. 175. Rot. Claus. 639. Annai. Wig. 4St,
 
 i2 3 2.] HUBERT DE BURGH. 51 
 
 a knowledge of the law, and a zeal to do justice to all 
 suitors who came before him, for which he had not 
 hitherto had credit ; while he preserved tranquillity at 
 home, and raised the consideration of England with 
 foreign nations to a pitch unknown since the death of 
 Cceur.de Lion. " Multa ben6 in re judiciaria," says 
 Matthew Paris, " multa militia gessit." 1 
 
 The only grave act of misgovernment imputed to him 
 was the annulling of the CHARTER OF THE FOREST, 
 a concession which was most reasonable, and which had 
 been passionately claimed both by the nobility and the 
 people. 4 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 under royal letters patent, 
 lie 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. 4 
 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 
 ahd amassing riches at home. All now predicted the fall 
 
 1 M. Paris, ad ann. 1232. But though very scrupulous while sitting on the 
 bench, he was, like other Justiciars, always ready to exercise a vigor beyond 
 the law when in the field. In the I5th year of Henry III., hearing that the 
 Welsh had committed great outrages, especially about Montgomery, he 
 marched thither, and, having taken many prisoners, he struck off their heads 
 and sent them to the King ; which so provoked Lewellyn, Prince of Wales, 
 that raising all the power he could, he retaliated on the English, setting fire 
 even to the churches, in which crowds who had taken sanctuary were burned. 
 
 1 M. Paris, p. 232. * Hist, of Eng. ii. 159. 4 Roger de Wendover, iv. 173.
 
 52 REIGN OF HENRY II T. [1232 
 
 the obnoxious minister. By the subtle advice of his 
 enemies, instead of any violence being offered to him, 
 a great council was called, and 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 filled the office of Chief 
 Justiciar. Seeing that his ruin was determined upon, 
 he took to sanctuary in the priory of Merton. Being 
 immediately removed from his office of Chief Justiciar, 
 he asserted that he held the appointment for life, by a 
 grant under the Great Seal ; but he was told that the 
 patent was illegal and void ; and Stephen de Segrave 
 was appointed his successor, at the instigation of Peter 
 de Rupibus, who at present preferred the enjoyment of 
 power without the envy of office. 
 
 Proclamation was now made through the City of Lon- 
 don by a herald that " all manner of persons who had 
 any charge against the ex-Chief Justiciar were to come 
 forth, and they should be heard." He 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 royal treasury a gem which had the 
 virtue of rendering the wearer invulnerable, and of gain- 
 ing the king's favor by sorcery and enchantment. 
 
 It was first resolved to drag him from his asylum by 
 force, and, with this view, the Mayor of London and a 
 body of armed citizens were sent to storm the priory ; 
 but the King, being 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,
 
 i2 3 2.J HUBERT DE BURGH. 53 
 
 they seized him, placed him on horseback, tied his feet 
 under the horse's belly, and proceeded with their cap- 
 tive towards the metropolis amidst the derisive shouts 
 of the populace. The Bishop of Winchester, either re- 
 specting the privileges of the Church, or afraid of excit- 
 ing sympathy 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 been taken ; and 
 the Sheriff of Essex was charged under penalty of death 
 to prevent his escape. To render this impracticable, a 
 deep moat was dug round the sacred building in which 
 he was confined, and on the fortieth day hunger or des- 
 pair compelled him to surrender himself. After a short 
 confinement in the Tower, he was brought before a 
 council of his peers assembled in Cornhill. The accusa- 
 tions against him being read, he declared that he should 
 make no defense, and that he placed his body and his 
 lands and goods at the King's pleasure. Sentence was 
 passed, whereby, being allowed 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 was to be kept in safe custody in the Castle of 
 Devizes till he should enter the order of the Knights 
 Templars. 
 
 The following year he was dreadfully alarmed by the 
 news that the custody of this castle had been transferred 
 to a retainer of Peter de Rupibus ; and, that he might 
 not fall into the hands of his mortal enemy, he dropped 
 from the castle wall into the moat, in the obscurity of 
 the night, and again took sanctuary in a neighboring 
 church. The guard hastened after him with lights and 
 clubs, and, rinding him prostrate before the high altar 
 with a cross in his hands, carried him back again into 
 stricter custody in the castle. The Bishop of Salisbury, 
 within whose diocese this outrage had been committed, 
 threatened to excommunicate all concerned in it. In 
 accordance with the respective obligations and privileges 
 of the parties, the King restored Hubert to the church 
 from which he had been forced, but at the same time 
 ordered the Sheriff of Wiltshire to besiege him there, 
 and to starve him to death unless he choose voluntarily 
 to surrender. In this desperate condition, two of the
 
 54 REIGN OF HENRY III. [1239. 
 
 soldiers who had formerly served under him took com- 
 passion upon him, furnished him with some food, clothed 
 him in a military habit, and, conveying him into Wales, 
 put him under the protection of the Earl of Pembroke. 
 
 Afterwards, at an assembly of the Barons held at West- 
 minster, the King preferred articles of impeachment 
 against him, accusing him of usurping the office of Chief 
 Justiciar, of treason, of rapacity, and of trying to pre- 
 vent the King's marriage with the daughter of the Duke 
 of Austria by saying that the King squinted, had a 
 leprous appearance, and was not qualified for wedlock. 1 
 By his answers he denied all these charges, insisting that 
 he had been appointed Justiciar by King John at Runny- 
 mede, and that he had never exercised the powers of 
 that office without due warrant. 8 
 
 Finally, a compromise was effected by which he sur- 
 rendered four of his strongest castles, and released all 
 right to the office of Chief Justiciar, receiving a pardon 
 for all offenses, and being allowed to retain all his other 
 possessions. He now became disgusted with public life, 
 and he spent the rest of his days in seclusion. After re- 
 penting of his many irregularities, and receiving the 
 consolations of religion, he quietly expired at Banstede, 
 in Surrey, on the I2th day of May, 1243. 
 
 His body, being brought to London, was honorably 
 interred in the church of the Black Friars in Holborn; a 
 house to which he was a benefactor, having given it, 
 amongst other things, his inn at Westminster, which be- 
 came the town residence of the Archbishops of York, 
 and afterwards the royal palace of Whitehall. He was 
 married four times; all his wives being high born, and 
 the last no less a person than the daughter of William 
 the Lion, King of Scotland. This marriage took place 
 at York when he was Chief Justiciar the second time, 
 the Archbishop of Canterbury performing the ceremony, 
 and the King and many of the nobility assisting at it." 
 
 1 Prorsus inutilis amplexibus alicujus ingenuse mulieris." M. Paris. 
 
 I St. Tr. 14. 
 
 __ ' Spelman, 340. See Dugdale's Baronage, and Hasted's History of 
 Kent. Notwithstanding the open and solemn manner in which this mar- 
 riage was celebrated, it was afterwards made an article of charge against 
 him, " that whereas William, King of Scots, had delivered two of his 
 daughters to John, King of England, under condition that the eldest should
 
 i2 3 2.J HUBERT DE BURGH. 55 
 
 His descendants, after flourishing for some generations, 
 became extinct in the male line. He was not an author 
 like Glanville, but he is supposed to have patronized 
 Bracton, who, as a jurist, was the great glory of this 
 reign. 
 
 The most touching panegyric ever pronounced upon 
 Hubert was by an Essex blacksmith, who, being obliged 
 to forge fetters to secure him when they were carrying 
 him prisoner to the Tower of London, exclaimed, " Do 
 what you please with me ; I would rather die than put 
 fetters on him. Is he not the faithful and magnanimous 
 Hubert, who has so often rescued England from the 
 ravages of foreigners, and restored England to the Eng- 
 lish who served his Sovereign so firmly and faithfully 
 in Normandy and Gascony that he was sometimes 'com- 
 pelled to eat horseflesh, his very enemies admiring his 
 constancy who preserved Dover, the key of England, 
 against the King of France and all his power and who 
 secured our safety by subduing our enemies at sea? 
 May God be judge between him and you for such unjust 
 and inhuman treatment I" 1 
 
 After the rivalry of Peter de Rupibus and Hubert de 
 Burgh had been terminated by the ruin of both, there 
 began the struggle between the Crown and the Barons, 
 which was not terminated till Simon de Montfort fell in 
 the fatal battle of Evesham, more than thirty years af- 
 terwards. During this period, several reached the dig- 
 nity of Chief Justiciar who were neither distinguished 
 as judges, nor gained much political or military renown ; 
 and whom we shall, therefore, quickly despatch. Hu- 
 bert's immediate successor was Stephen de Segrave, who 
 had previously been a common justiciar, or puisne judge, 
 
 be married to Henry, Prince of England, or, in the event of his death, to 
 Richard, Earl of Cornwall, yet that Hubert himself had taken her to wife 
 while Henry was under age, and incapable of solemnizing the marriage." 
 The defense made by Hubert was, " that he knew nothing of any treaty for 
 marrying the Princess of Scotland to Henry or Richard ; that the Princesses 
 were to be bestowed in marriage by the King of England, with the appro, 
 bation of the nobility, and that in consequence the eldest was so be- 
 stowed on him, Hubert." " If the controverted article existed," says Lord 
 Hales, " we must admire the effrontery of Hubert ; if not, the ignorance or 
 malice of his accusers." Annals of Scotland, i. 170. 
 
 1 See Roger de Wendover, iv. 247 253 ; Rot. Liberat. 10 ; Rot. Pat II j 
 Roger de Wendover, iii. 293 380 ; Rot. Glaus, i. 319 322.
 
 56 REIGN OF HENRY III. [1259. 
 
 in the AULA REGIS. 1 He was a rare instance, in those 
 days, of a man being in a high civil station who was of 
 obscure origin ; but this was accounted for by the circum- 
 stance of his having begun his career as a churchman. 
 He was then knighted, and showed extraordinary prow- 
 ess in the field. Last of all, he addicted himself to the 
 jurisprudence. When he had gained the object of his 
 highest ambition, he cared little for the interests of the 
 suitors, he recommended arbitrary measures to the king, 
 and he enriched himself by rapacity. Having obtained 
 a dispensation from the Pope to marry, notwithstanding 
 his religious vows, he made good use of his privilege, for 
 he had successively two wives of the distinguished fami- 
 lies of Le Despencer and Hastings ; and the Earls of 
 Berkeley, the Earls of Egremont, and all the branches 
 of the House of Howard, are descended from him.* 
 
 Next came Hugo de Pateshulle, who had the reputa- 
 tion of integrity as a judge, but nothing is said of his 
 learning or ability. He resigned his office on being 
 elected Bishop of Lichfield and Coventry. Of his suc- 
 cessor, Gilibertus de Segrave, still less is known, for the 
 industrious Spelman is obliged to say, " Ego vero nihil 
 de eo rcperi :" and all that is related by Philip Lovel, 
 who followed, is, that when he was thrust out of office 
 by the Barons, he died of grief." Concerning John 
 Maunsel, whom the Barons substituted as Chief Justi- 
 ciar, I have already told all that is memorable, as he had 
 before filled the office of Lord Chancellor. 4 
 
 We now come to a Chief Justiciar pronounced to have 
 been " a distinguished soldier, and learned in the law of 
 the land." 4 
 
 Hugh Bigod was a younger son of Roger Bigod, Earl 
 of Norfolk ; and, although he declined to take orders, 
 
 1 Madd. Exch. i. 63. 65. 
 
 _ * See Spelman, 341. He is thus pithily despatched by M. Paris : " In 
 juventute sua de clerico factus Miles, licet de humili genere oriundus, 
 strenuitate sua ultimus diebus adeo ditatus et exaltatus est, ut inter primos 
 regni reputatus, pro Justiciario habitus est, et omnia fere regni negotia pro 
 libitu disposuit, sed semper plus sui amicus quam reipublicae." 
 
 1 " Judicio Baronum ejicitur ex officio, an. 1258, et sequenti anno pro 
 mentis amaritudine diem obiit." M. Paris. 
 
 * Lives of Chancellors, i. ch. vii. 
 
 " Nobiles firmius confcederati constituerunt sibi Justiciarium Militem 
 illustrem et legum terrse peritum Hugonem Bigod, qui officium Justiciarias 
 strenue peragens, nullatenus permittat jus regni vacillare." M. Pans.
 
 n6o.] HUGH BIGOD. 57 
 
 he afforded an extraordinary instance of a layman ac- 
 quiring a profound knowledge both of the civil and 
 municipal law. At the same time he was initiated in 
 military exercises, and was considered a gallant and 
 accomplished knight. He was appointed governor of 
 the Castle of Pickering ; and he accompanied the King 
 in an expedition against the Welsh, as well to assist in 
 negotiation as in the field. But he was persuaded by 
 his elder brother, the famous Roger Bigod, the fourth 
 Earl of Norfolk of that name, who headed the Barons 
 against Henry, to join their party ; and at the parlia- 
 ment held at Oxford, when the famous " PROVISIONS " 
 were agreed to which vested the royal authority in a 
 small oligarchy, he was constituted Chief Justiciar, and 
 the Tower of London was committed to his charge. 
 
 Notwithstanding the violent manner in which he was 
 appointed, he administered justice with great impartial- 
 ity as well as vigor ; and it was said that there had not 
 been such a judge in England since Ranulfus de Glan- 
 ville. With Roger de Thurkolby and Gilbert de Pres- 
 ton, two very learned puisnies, as his companions, he 
 made a circuit through every county in the kingdom, 
 putting down disturbances, punishing malefactors, and 
 justly deciding civil rights. He cashiered Richard de 
 Grey, who had been constable of Dover Castle, and 
 warden of the Cinque Ports ; and he was as little moved 
 by the piteous looks of the poor as by the scornful 
 glances of the powerful. 1 
 
 For some reason not satisfactorily explained to us, 
 while universally applauded, and while the party by 
 whom he had been elevated was yet triumphant, he re- 
 signed his office when he had held it little more than a 
 year. Some say that the Barons had resolved to make 
 it an annual office ; some, that they were jealous of his 
 popularity ; and others, that he would no longer be 
 associated with them in their scheme to usurp the pre- 
 rogatives of the Crown. He afterwards again took the 
 King's side, and fought for him in the battle of Lewes. 
 When the rout began, he fled the field, but was accom- 
 
 1 " Angliam de comitatu in comitatum circuit, omnibus justitiam 
 aequissima distribuens : vultu nee motus pauperum, nee potentum flaccidus 
 supercilio." See Spelm. 341.
 
 58 REIGN OF HENRY III. [1257. 
 
 panied by the Earl of Warrenne and other brave knights. 
 Notwithstanding the proofs they had given of their 
 courage, they did not escape the satirical notice of Peter 
 Langtoft, who thus described their flight : 
 
 " The Erie of Warenne, I wote, he escaped over the se, 
 And Sir Hugh Bigote als with the Erie fled he." 
 
 When the royal authority was restored by the victory 
 at Evesham, he was again appointed to the government 
 of Pickering Castle; but the office of Chief Justiciar, 
 such as it had been, was thought to be too powerful to 
 be given to any subject, and it could not well be offered 
 to him shorn of its splendor. 
 
 We have no particulars of the closing scene of his life, 
 but it must have occurred soon after, as we know, from 
 the Fine Rolls, that on the /th of November, 1266, his 
 son Roger did homage to the King at Kenilworth as 
 heir to his lands. 1 
 
 On the resignation of Hugh Bigod, the Barons ap- 
 pointed Hugh le Despencer as his successor. This Jus- 
 ticiar was celebrated more for his bravery than for his 
 learning ; but if he was not always quite impartial as a 
 judge, he at least had the merit of being always true to 
 his party. He was said to have been descended from 
 Robert le Despencer, steward to William the Conquer- 
 or; but as the royal steward for the time being was 
 called, long after the Conquest, " Le Despencer," there 
 is a doubt as to the time when the name of the office 
 passed into a surname,* and whether his ancestors was 
 not some noble who had held it more recently. Anti- 
 quaries dispute even as to the immediate ancestors of 
 Hugh, although they all agree that he was of noble 
 blood. We do not know much of his training, and he 
 is first mentioned by historians as the companion of 
 Richard, King of the Romans, the brother of Henry 
 III., when that prince went into Germany in pursuit of 
 the imperial crown. On his return to England he joined 
 
 1 Rot. Fin. ii. 448. 
 
 * In Scotland the office retained its Saxon appellation, and hence we have 
 the illustrious family name of Stewart or Stuart ; although, generally speak- 
 ing, French was spoken at the Scotch as well as at the English court of 
 which we have a proof in the office of taking charge of the royal table linen 
 having given rise to the name, so distinguished in our day, of Napier.
 
 1263.] HUGH LE DESPENCER. 59 
 
 the Barons, who were in arms against the King ; and 
 when they carried the " Provisions of Oxford," he was 
 one of the twelve commissioners in whom the exercise 
 of the royal prerogative was vested, In the course of 
 the following year, he went as an Itinerant Justice into 
 several counties, and gave entire satisfaction to the rul- 
 ing powers, although not to the suitors. 
 
 When he was elected Chief Justiciar, there were soon 
 heavy complaints against him ; and his partiality or in- 
 capacity very much strengthened the reaction in favor of 
 the royal authority. At last, Henry, having received 
 from the Pope a dispensation from his oath to observe 
 the " Provisions of Oxford," assembled a Parliament at 
 Westminster, in which he had a large majority. Here 
 Le Despencer being ordered to deliver up the Rolls of 
 Chief Justiciar 1 at the same time that the usurping Chan- 
 cellor was ordered to deliver up the Great Seal, they 
 joined in saying that they could not do so without the 
 consent of the Barons, by whom they had been ap- 
 pointed ; but the King, with general approbation, dis- 
 missed him, and appointed Philip Basset Chief Justiciar 
 in his stead. 
 
 Hugh le Despencer, maintaining that he had not been 
 lawfully superseded, still claimed to be entitled to per- 
 form the functions of the office, and, the tide again 
 turning in favor of the Barons, the King was obliged to 
 recognize him as Chief Justiciar. The following year, 
 open hostilities being resumed, he placed himself at the 
 head of a strong military force, destroyed the houses of 
 Philip Basset and the loyalist nobles in Westminster, 
 imprisoned the King's judges, even pillaged foreign 
 merchants, and extorted large sums of money by cruel- 
 ties on the Jews. 
 
 In the battle of Lewes our Chief Justiciar commanded 
 one of the wings of the army, and with his own hand 
 took prisoner Marmaduke de Twenge, whose ransom 
 was fixed at 700 marks. Immediately after, no fewer 
 than six strong castles were placed under his govern- 
 
 1 At this time the Chief Justiciar seems to have held in his hand certain 
 parchment rolls as the emblem of his office : " Rex vocatis ad se Justiciario 
 et Cancellario nuper institulis a Baronibus, sigillum suum sibi recdi, et 
 rotulos de Justuiaria sibi mandavit restitui." See Spel. 341.
 
 60 REIGN OF HENRY III. [1253. 
 
 ment, an.d he had a grant of 1000 marks for his better 
 sustentation in the office of Chief Justiciar. He was 
 likewise appointed one of the six commissioners to treat 
 with the Pope's legate and the King of France, as me- 
 diators relative to the reformation of the state. 
 
 He continued to do the judicial business of the office 
 regularly till again called into the field, to make head 
 against the formidable force assembled under Prince 
 Edward for the re-establishment of the Royal authority. 
 When the two armies came in sight of each other, near 
 Evesham, the Earl of Leicester, in consideration of his 
 age and infirmities, advised him to leave the field, but 
 he refused to disgrace his ermine by such poltroonery ; 
 and the two were slain together, manfully making head 
 against mighty odds, and refusing quarter which was 
 offered to them. 
 
 Hugh le Despencer is to be considered the last of 
 those remarkable men who, for above two centuries, 
 exercised conjointly the functions now belonging to the 
 first judge in the land and to the commander-in-chief of 
 the forces. Such a combination (as was seen in the Ro- 
 man republic) certainly has a powerful tendency to de- 
 velop the highest faculties of the mind, and produces 
 characters of greater eminence than are to be found 
 when the sword and the gown are permanently dis- 
 united. 
 
 The son and grandson of the last of the Chief Justi- 
 ciars acquired a most unenviable celebrity in the reign 
 of Edward II. ; but he is now honorably represented by 
 the present Baroness le Despencer, and some of the most 
 illustrious of the nobility of England are descended from 
 him. 
 
 We need not be long delayed by Philip Basset, the 
 rival Chief Justiciar. He was of the great family of that 
 name which I have before mentioned, and which occurs 
 much more frequently than any other name in our judi- 
 cial annals. He began his political life in opposition, 
 being associated with the Barons under De Montfort ; 
 but he soon went over to the Court, and became a 
 special favorite of the feeble Henry. He was enriched 
 by grants of various wardships, forfeitures, and shrieval- 
 ties ; was constituted governor of the castles of Oxford,
 
 1266.] PHILIP BASSET. 61 
 
 Bristol, Corff, and Shireburn, and managed all the affairs 
 of the King of 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. 1 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 III., 
 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.* 
 
 1 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. 
 
 4 Dugdale says, " Of those who had the office of Justiciarius Anglise, 
 Philip Basset was the last, the King's Bench and Common Pleas having 
 afterwards one in each court." Or. Jur. p. 20 : and see Spel. Gloss, p. 342
 
 62 REIGN OF HENR Y 1* 1. \i 205 
 
 I wish that I could have been justified in concluding 
 the list of Chief Justiciars with Simon de Montfort him- 
 self; a life of him might 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 be 
 honored as the founder of a representative system of 
 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 
 Anglise," the title by which Bigod, Le Despencer, 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 .believe that he suggested the new judicial 
 system which was fully adopted and established in the 
 succeeding reign, and under which justice is administered 
 at this day in England. 1 
 
 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 
 
 1 Spelman, 342 ; Brady's England, i. 650, 651 ; Rot. Fin. ii. 405 ; Leland'i 
 Coll. ii. 378 ; Lives of Chancellors, i. ch. ix.
 
 1268.] HENRY DE BRACTON. 63 
 
 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 Despencer, 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 Justiciar. 
 
 It would be a matter of the highest interest to know 
 how a man so enlightened and accomplished was formed 
 during the very darkest period of English history, when 
 the 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 clericus
 
 64 REIGN OF HENRY III. [1250. 
 
 noster." He is supposed to have practiced in the com- 
 mon law courts of Westminster, 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. 1 
 
 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 
 nobles 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, " De Legibus et Consuetudinibus 
 Angliae." 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 Marlbridge, which passed in the $2nd year of 
 Henry III. 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 more dis- 
 tinguished for precision than for enlarged principles. 
 Th,e work we are considering certainly gives a complete 
 
 1 He is sometimes named Bratton, and sometimes Bretton, in the Rolls ; 
 but these are distinctly proved to be the identical Henry de Bracton of 
 whom we are treating.
 
 1268.] ROBERT DE BRUS. 65 
 
 view of the municipal law 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. 1 
 
 I now come to a " CHIEF " who, we certainly know by 
 existing records, was appointed " CAPITATIS JUSTICIAR- 
 TUS AD PLACITA CORAM REGE TENENDA," the modern 
 designation of the presiding Judge in the Court of 
 King's Bench ; 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 MAGNA CHARTA to change our judicial 
 system ; and, although a separate tribunal now existed 
 for civil suits, there is reason to think that the AULA 
 REGIS continued till the accession of Edward I. without 
 any farther statutable alteration, there being merely an 
 understanding that 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 
 home or abroad. 
 
 The choice made of a Chief, who was to be, like Brae- 
 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 succession 
 to a throne ; he actually became a competitor for it ; his 
 grandson, after giving the English the severest defeat 
 they ever sustained, swayed the 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 Skelton, 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 ; Lives of Chancellors, i. ch. 
 ix ; 2. St. Tr. 693 ; Rot. Cl. ii. 77 ; Rot. Fin. 82458 
 15-
 
 66 REIGN OF HENRY III. [1268. 
 
 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 are almost all of Norman extraction 
 and most of the great families in that kingdom are to 
 be traced to the union of a Celtic heiress with a Nor- 
 man knight. Robert, the son of the first Robert de 
 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 
 immense 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. 1 
 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 wene 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 
 
 1 Four of these are within a few miles from the spot where I am now 
 writing Jedburgh, Melrose, Dryburgh, and Kelso,
 
 1224.] ROBERT DE BRUS. 67 
 
 for the 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 
 their auspices. It is supposed that the youth studied 
 at Oxford ; but this fact does not rest on any certain 
 authority. In 1245, his father died, and 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 furca et fossa, or 
 " pit and gallows," which he possessed without any limit 
 over his vassals ; but by his English education he had 
 become quite an Englishman, and, paying only very rare 
 visits to Annandale, he sought preferment at the court 
 of Henry III. What surprises us still more is, that he 
 took to the gown, not 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 lawyer. 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 40 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. [1272. 
 
 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, 1268, 52 Henry III., he was appointed 
 " Capitalis Justiciarius ad placita coram Rege tenenda." 
 Unless his fees or presents were very high, he must have 
 found the reward of his labors in his judicial dignity, for 
 his salary was very small. Hugh Bigod and Hugh le 
 Despencer had received 1000 marks a year " ad se 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
 
 I29I.J ROBERT DE BRUS. 69 
 
 doubt, heard with reverence, however lightly his law 
 might have been dealt with 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 
 
 1 Some historians, both English and Scotch, have supposed that the 
 Robert Bruce employed in this negotiation was the son of the Chief Justice 
 who so romantically became Earl of Carrick, by being forced by the heiress 
 of that great domain to marry her ; but Lord Hales clearly proves that tt 
 was Robert the father. See Dalrymple's Annals, i. 198, 204.
 
 70 REIGN OF EDWARD I. [1292. 
 
 Tweed, when the English Chancellor, 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." 1 
 
 He aftenvards 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, which was not then firmly 
 established, had never been applied to the descent of 
 the crown. 8 
 
 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 that he was wronged, 
 and resolutely refused to acknowledge the title of his 
 rival. He retired in disgust to his castle of Lochmaben, 
 where he died in November, 1295, in the seventy-second 
 year of his age. 
 
 While resident in England he had married Isabel, 
 daughter of Gilbert de Clare, Earl of Gloucester, by 
 whom he had several sons. Robert, the son of Robert 
 the eldest, became Robert I., and one of the greatest of 
 heroes. The descent of the crown through him to the 
 Stuarts is, of course, universally known. The family of 
 the Chief Justice is still kept up in the male line by the 
 descendants of his younger son, John, among whom are 
 numbered the Earl of Elgin, the Earl of Cardigan, and 
 the Marquess of Aylesbury. 8 
 
 1 R. Feed. vol. ii. 545. 
 
 * See Dalrymple's Aunals, i. 215 243. 
 
 * See Dug. Chr. Ser. Rot. Fin. ii 79. 545 Dug. Bar. Coll. Peerage.
 
 CHAPTER II. 
 
 THE LIVES OF THE CHIEF JUSTICES FROM THE ACCES- 
 SION OF EDWARD I. TO THE APPOINTMENT OF 
 CHIEF JUSTICE TRESILIAN. 
 
 WE now arrive at the aera when our judicial insti- 
 tutions were firmly established on the basis on 
 which, with very little alteration, they have 
 remained to the present day. 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, 1 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 JUSTINIAN, 
 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 Matthew Hale does 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." 8 The AULA REGIS he utterly abol- 
 
 1 A remnant of the Aula Regis subsisted to our own time in the " Ex- 
 chequer Chamber," into which cases of great importance and difficulty 
 continued to be adjourned, to be argued before all the judges. The practice 
 of judges reserving points of criminal law arising before them on the 
 circuit, I consider as having had a similar origin. The rule which prevailed 
 that both in civil and criminal cases the opinions of the majority of the 
 judges in the Exchequer Chamber should overrule the opinions of the ma- 
 jority 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 ; Hale's Hist. C. L. p. 162.
 
 72 REIGN OF EDWARD I. [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 pleas in the Court of our Lord the King 
 before the King himself," and by other justices .or 
 " puisne judges." This was the supreme court of 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 REGIS which had subsequently sat 
 at Westminster now became the " Court of Common 
 Picas," 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 
 " Barons of the Exchequer." They now formed an 
 entirely separate tribunal called the " Court of Ex- 
 chequer," with the Lord Treasurer and the Chancellor 
 of the Exchequer 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 REGIS 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 RALPH DE 
 HENGHAM 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 had long been settled at Thetford 
 in Norfolk ; and the head of the family, towards the end 
 of the reign of Henry III., had gained distinction as a 
 knight in several passages of arms, had been a Judge in 
 the AULA REGIS, and had acted as a Justice in Eyre. 
 Ralph, a younger son of his, having a greater taste for 
 law than for military exercises, was, while yet a boy, 
 placed iu 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 Fleta, which, in those simple and happy times, com- 
 posed a complete law library. Without the clerical ton- 
 sure, he became a candidate for business at the bar ; but 
 such was the belief, that the characters of causidiciis and 
 clericus 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. 1 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 of 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 
 
 1 It was to conceal the want of clerical tonsure, that the sergeants-at-law, 
 who soon monopolized the practice of the Court of Common Pleas, adopted 
 the coif, or black velvet cap, which became the badge of their order.
 
 74 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 
 REGISTRUM BREVIUM, and pronounced by Lord Coke 
 to be " the most ancient book on the law." 1 Next, he 
 composed an original work, which is still extant, and 
 quoted in Westminster Hall as the " Summae 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 prcecipe 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 
 
 HENGHAM 
 
 EDWARDI Regis I. 
 
 Capitalis olim Justitiarii 
 
 SUMM/E. 
 
 Magna Hengham et Parva vulgo 
 
 nuncupate, nunc priminn ex vet. Codd. 
 
 MSS. lucem prodcunt. 
 
 LONDINI. 
 
 Bibliopolarum Corf on excttditur. 
 M.DC.XVI." 
 
 The Latinity is barbarous even for a lawyer, and the 
 arrangement not very good. From a quaint analogy to 
 the Mosaic account of the creation, he supposes the 
 work of conducting a 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 
 
 1 4 Inst. 140 ; 3 Rep. Preface, vii. He means, of permanent authority in 
 the common law ; which earlier treatises could not be considered. 
 
 * I give a specimen : 
 
 " SECUNDUS DIES. Secundo die piaciti potest reus facere defaltam si 
 velit ex consuetudine regni, dum tamen essoniatus fuerit primo die ordine 
 preemonstato. Petens autem expectans quartam diem ipso die offerat se liti 
 sic versus ipsum reum in haec verba : ' Richarclus le Jay se profre vers Wil- 
 liam Huse de play de terre.' " &c. Hengham Magna, ch. vfii.
 
 I289-J RALPH DE HENGHAM. 75 
 
 essential service to those who were to practice before 
 the learned author. 
 
 He gave much satisfaction by his despatch of judicial 
 business. The Judges of the King's Bench still traveled 
 about with the Sovereign, and mounted their tribunal 
 wherever he might be. Thus Chief Justice Hengham 
 led a wandering "life, and was stationed from time to 
 time at Winchester, Gloucester, York, and other cities. 
 He 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. 1 
 
 The conquest and settlement of Wales being com- 
 pleted, Edward 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 Chief 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, 
 
 ..." You must know we have with special aoul 
 
 Elected him our absence to supply ; 
 
 Lent him our terror, drest him with our love, 
 
 And given his deputation all the organs 
 
 Of our own power." 
 
 The courtiers probably replied, 
 
 " If any in all England be of worth 
 To undergo such ample grace and honor, 
 It is De Hengham." 
 
 Yet he was supposed to have misconducted himself as 
 much as " Lord Chief Justice Angelo." 
 
 The King remained in Aquitaine 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 
 
 1 Rot. Tarl. 6 Ed. x.
 
 7 6 
 
 REIGN OF EDWARD I. 
 
 [1289- 
 
 Chief Justice, instead of vigorously and impartially en- 
 forcing the law, had himself taken bribes, and had con- 
 nived at a wholesale trade in bribery carried on by his 
 brother 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 De Hengham. 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 de Beckingham, 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." 1 
 
 De Hengham 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 
 
 1 Parl. Hist. 38. 
 
 * Tyrrell, in his History, sets down the fines as follows: 
 " Sir Ralph de Hengham C. J 
 Sir John Loveton 
 Sir William 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 de Stratton, a certain Clerk of the 
 court, is fined no less than 32,000 marks of new money, besides jewels and 
 silver plate." 
 
 7000 marks 
 
 
 3000 
 
 
 
 3000 
 4000 
 
 Justice of Assize. 
 
 4000 
 2000 
 
 2OOO 
 
 i 
 
 Justices 
 Itinerant. 
 
 3000 
 
 1000 
 
 Master of the Rolls. 
 
 IOOO 
 
 
 
 . IOOO " } 
 
 Escheator and 
 Judge for the Jew;
 
 i3o8.J RALPH DE HENGHAM. 77 
 
 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. c , that, out of mere compassion, he had reduced a 
 fine, which he had set upon a poor man from 13^. 4^. to 
 6s. &/. 1 The tradition prevailing in the reign of Eliza- 
 beth was, that from the fine upon the Chief Justice him- 
 self a clock-house was built at Westminster, furnished 
 with a clock to be heard in Westminster Hall." Upon this 
 story, however, Blackstone remarks, " that (whatever in- 
 stances may be found of the private exertion of mechan- 
 ical genius in constructing horological machines) clocks 
 came not into common use till an hundred years after- 
 wards, about the end of the I4th century." 3 
 
 The ex-Chief Justice bore his misfortunes with mag- 
 nanimity, and gradually recovered the confidence both 
 of the King and of the public. About eleven years 
 afterwards we find him one of the Justices in Eyre for 
 the general perambulation of the forests * and near the 
 conclusion of this reign he was employed to negotiate a 
 treaty with the Scots, the King Having failed in all his 
 attempts to rob them of their independence. 6 
 
 At the accession of Edward II., De Hengham was 
 again actually replaced on the Bench, being appointed 
 Chief Justice of the Court of Common Pleas; 6 and he 
 continued to fill this office with much credit till his 
 death in the end of the following year. He was buried 
 
 1 Year-Book, M. 2 Richard III. 10. 
 
 * 3 Inst. 72 ; 4 Inst. 255. 
 
 8 Comm. vol. iii. 410. Lord Coke was more credulous, and thus palavers 
 in his 4th Institute (f. 255) : " Radulphus de Ingham, Chief Justice of 
 England, a very poor man being fined before him at 13^. 4</., in another 
 tearm, moved with pity, caused the record to be rased and made 6.r. SJ. ; for 
 which he (for his fine) made the clock (to be heard into Westminster Hall) 
 and the clock-house in Westminster, which cost him 800 marks, and con- 
 tinueth unto this day, which sum was entered into the roll. And almost in 
 the like case in the reign of Queen Elizabeth, Sir Robert Catlyn, Chief 
 Justice of England, would have had Justice Southcote (one of his compan- 
 ions, justice of the King's Bench) to have altered a record, which the 
 justice denyed to doe, and said openly in court ' that he meant not to build a 
 clock-house.' " See 3 Pryn. Rec. 401, 402 ; Dugd. Chron. Ser. 26 ; I Hale, 
 P. C. 646, 647. 
 
 4 Rot. in Furr. Lond., 29 Ed. I. m. 8. * I Rot. Par!., 33 Ed. I. 
 
 6 Dugd. Chron. Ser. 34,
 
 78 REIGN OF EDWARD I. [1289. 
 
 in St. Paul's Cathedral, where a marble monument was 
 erected to his memory with the following rhyming epi- 
 taph : 
 
 " Per versus patet hos, Angloru qd jacet hie flos ; 
 Legum qui tuta dictavit vera statuta, 
 Ex Hengha diet' Radulph, vir benedict'. " 
 
 He may be truly considered the father of the Common 
 Law Judges. He was the first of them that never put 
 on a coat of mail ; and he has had a long line of illus- 
 trious successors contented with the ermined robe. 
 
 Of the contemporary Judge, DE WEYLAND, I find 
 nothing related prior to his appointment of Chief Justice 
 of the Common Pleas. He likewise was esteemed a 
 great 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. 1 
 But unfortunately, his salary being only sixty marks a 
 year, he seems without scruple to have resorted to very 
 irregular courses for the purpose 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 himself in the habit of a monk, he 
 was admitted among friars-minors in a convent at Bury 
 St. Edmund's. However, being considered a heinous 
 offender, sharp pursuit was made after him, and he was 
 discovered wearing a cowl and a serge jerkin. Accord- 
 ing 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 himself to perishing from 
 want. 1 He was immediately 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 
 
 1 Madd. Exch. ii. 66. c. I. k. 
 
 9 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 taken 
 and sent to the tower." See 4 Bloomfield's Norfolk, 631.
 
 1289.] ROGER LE BRABACON. 79 
 
 his lands and chattels to the Crown. 1 Having walked 
 barefoot and bareheaded, with a crucifix in his hand, to 
 the seaside at Dover, he was put on board a ship and 
 departed to foreign parts. He is said to have died in 
 exile, and he left a name often quoted as a reproach to 
 the Bench till he was superseded by Jeffreys and 
 Scroggs.* 
 
 The immediate successor of De Hengham as Chief 
 Justice of the King's Bench was GILBERT DE THORN- 
 TON, who, I make no doubt,. was a worthy man, but who 
 could not have been very distinguished, for all that I 
 can find respecting him is that he was allowed a salary 
 of 40 a year. 3 He was overshadowed, as sometimes 
 happens, by a puisne who sat by him, and who at last 
 supplanted him. This was ROGER LE BRABACON, 4 who, 
 from the part he took in settling the disputed claim to 
 the crown of Scotland, is an historical character. His an- 
 
 1 The property forfeited by him. was said to have been worth upwards of 
 100,000 marks, or ,70,000, " an incredible sum," says Blackstone, " in those 
 days before paper credit was in use, and when the annual salary of a Chief 
 Justice was only sixty marks." Com. iii. 410. 
 
 * Oliver St. John, in his speech in the Long Parliament against the 
 Judges who decided in favor of ship-money, compares them with the worst 
 of their predecessors : " Weyland, Chief Justice of the Common Pleas in 
 the time of Edward I., was attainted of felony for taking bribes, and his 
 lands and goods forfeited, as appears in the Pleas of Parliament, 18 Ed. I., 
 and he was banished the kingdom as unworthy to live in that state against 
 which he had so much offended." 
 
 Lingard says that " Weyland was found guilty of having first instigated 
 his servants to commit murder, and then screened them, from 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 usual accuracy, as he 
 makes Weyland Chief Justice of the King's Bench, elevating De Hengham 
 at the same time to the office of " Grand Justiciary." 
 
 In a MS. chronicle in the Bodleian Library, cited by Dugdale (Chron. 
 Ser. 1288), there is this entry : " Tho. de Weyland, eo quod malk tractavit 
 populum, ab officio Justiciarii amotus, exhaeredattis, et a terra exultatus." 
 
 Speed gives a melancholy account of the sufferings of the English, at this 
 time, between the Jews and the Judges. " While the Jews by their cruel 
 usuries had one way eaten up the people, the Justiciars, like another kind 
 of Jews, had ruined them with delay in their suits, and enriched themselves 
 with wicked convictions." He then relates with great glee "how Sir 
 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." Hist, 
 fG. 4 p. 558. 
 
 5 " Gilbertus de Thornton, capitalis Justic. habet XL/, per annum, ad se 
 sustentandum." Lib. 18 Ed. I. m. I. 
 
 4 The name is sometimes spelt Braba9on, Brabaneon, Brabason, and 
 Brabanson.
 
 80 REIGN OF EDWARD I. [1291. 
 
 cestor, 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 Brabancons. 1 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 1190, 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 55 6s.. 8d. a year.* He proved a most 
 admirable Judge ; and, in addition to his professional 
 knowledge, being well versed 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 as liege lord of that kingdom, and 
 Brabacon was employed, by searching ancient records, 
 to find out any plausible grounds on which the claim 
 could be supported. He accordingly 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 
 
 1 Hume, who designates them " desperate ruffians," 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. The greatest monarchs were not ashamed, on occa- 
 sion, to have recourse to their assistance ; and as their habits of war and 
 depredation had given them experience, hardiness, and courage, they gen- 
 erally composed the most formidable part of those armies which decided 
 the political quarrels of princes." Vol. i. 438. 
 
 Dug. Chr. Ser. A. D. 1290.
 
 i29i.] ROGER LE BRABACON. 81 
 
 to the 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 bank of the 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 suzerainett. The Scot- 
 tish 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 
 reason of our supreme Lord coming here, and of your 
 being summoned together, is, that he, in his fatherly 
 kindness for all in any way depending upon him, taking 
 notice of the confusion in which your 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, has resolved, for the more effectually 
 doing right to all who claim the kingdom, and for the 
 preservation of the peace thereof, to show you his siipe- 
 riority and direct dominion* over the same out of divers 
 chronicles and ancient muniments preserved in several 
 monasteries in England." 
 
 He then appears to have entered into his proofs ; and 
 he thus concluded : 
 
 " The mighty Edward, to whom you have appealed, 
 will do justice to all without any usurpation or diminu- 
 tion of your liberties ; but he demands your assent to, 
 
 1 Here is the well-known feudal distinction between the dominium direc- 
 tum, which belongs to the lord, and the dominium utile, which belongs to the 
 feudatory. 
 16.
 
 82 REIGN OF EDWARD I. [1293. 
 
 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 the absent members of their 
 different orders." Brabaon, 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. 
 Brabagon allowed them to depart ; and a copy of his 
 paper, containing the proofs of the alleged superiority 
 and direct dominion of the English kings over Scotland, 
 was put into their hands. He then returned to the 
 south, where his presence was required to assist in the 
 administration of justice, leaving the Chancellor Burnel 
 to complete the transaction. Although the body of the 
 Scottish nobles, as well as the body of the Scottish 
 people, would resolutely have withstood the demand, 
 the competitors for the throne, in the hopes of gaining 
 Edward's favor, successively acknowledged him as their 
 liege lord, and their example was followed by almost 
 the whole of those who then constituted the Scottish 
 Parliament. 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, 
 Brabajon 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
 
 1296.] ROGER LE BRA BACON. 83 
 
 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. Brabaon is 
 reported thus to have answered : 
 
 " This petition is unnecessary, and not to the purpose ; 
 for it is manifest, and ought to be admitted by all the 
 prelates and barons, and commonalty of Scotland, that 
 the King, our master, has performed all his promises to 
 them. As to the conduct of his Judges, lately deputed 
 by him as SUPERIOR and DIRECT LORD of that kingdom, 
 they only represent his person ; he will take care that 
 they do not transgress his authority, and on appeal to 
 him he will see that right is done. If the King had 
 made any temporary promises when the Scottish throne 
 was vacant, in derogation of his just suzerainett, 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 
 Brabagon 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. 1 
 
 Although historians who mention these events desig- 
 nate Brabagon 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 
 
 1 Rym. ii. 605. 615. 635. Rot. Scot. i. II. 16.
 
 84 REIGN OF ED WARD I. [ I3 o7. 
 
 of King's Bench, still following the person of the sov- 
 ereign, was, on one occasion, in Brabagon'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. 1 
 
 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, 8 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. 8 We read nothing more that is very mem- 
 orable of him during the present reign/ 
 
 On the accession of Edward II. Brabacon was reap- 
 pointed Chief Justice of the King's Bench, 6 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. 
 
 1 Hale, Hist. C. L. 200. 
 
 * We are not told whether they exclaimed " Oh ! oh !" or what was the 
 prevailing fashion f interjectional dissent. For centuries after, parliamen- 
 tary cheering was not by " Hear ! hear !" but by " Amen ! amen !" 
 
 3 i Parl. Hist. 46. 4 See 3 Tyrrell, 18. 
 
 6 He was sworn in before Walter Reginald, the Deputy Treasurer. Dug. 
 Chr. Ser.
 
 I293-J WILLIAM HOWARD. 85 
 
 At last, the infirmities of age unfitting Brabaon 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 earls of Meath are descended from his brother 
 Matthew. 1 
 
 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, 8 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 lead 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 I. 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- 
 
 1 His descendant, Sir William le Brabagon, was Vice-Treasurer of Ire- 
 land, and died in 1552. An Irish earldom was conferred on the family in 
 1627, and in 1831 the present Earl was created a peer, of the United King- 
 dom by the title of Baron Chaworth. See Grandeur of the Law, p. 182. 
 
 3 He appears there in his judge'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. 100.
 
 86 REIGN OF HENRY III. [1297. 
 
 ing to the Midland. Four years after, he was appointed 
 one of the Judges of the Common Pleas: and on the 
 accession of Edward II. he was again sworn into the 
 same office. 1 Our judicial records do not mention any 
 higher distinction acquired by him ; and I suspect that 
 the chiefship was only conferred upon him by flatterers 
 of his descendants when they were rising to greatness. 
 Nevertheless, he was certainly a very able and upright 
 magistrate ; and, from his profits as a barrister, and his 
 official fees, (his salary was little more than 30 a year,) 
 he bought large possessions at Terrington, Wiggenhall, 
 East Winch, and Melford, 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, 
 withojut 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 III. 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 ha\e been 
 conferred on its junior branches. 
 
 The next authentic Chief Justice of the King's Bench 
 was Henry le Scrope, the first who, by success in the law, 
 founded a family, and was himself ennobled. Many of 
 ancient lineage, like the Grand Justiciars, had held judi- 
 cial offices ; and several, like Sir William Howard, raised 
 themselves to eminence, and left descendants afterwards 
 enrolled in the peerage. Henry le Scrope, of an obscure 
 origin, from eminence in the legal profession, sat in the 
 House of Lords as a Baron ; and great chancellors and 
 warriors were proud to trace him in their pedigree. He 
 was the son of William le Scrope, a small 'squire, who 
 lived at Bolton, in Yorkshire. Having studied at Oxford, 
 he was transplanted, when very young, to London, to 
 study law in one of the societies then forming, which 
 were afterwards denominated " Inns of Court." He was 
 much distinguished for industry and ability, and, in the 
 
 1 Dugd. Chron. Ser.
 
 1 3 1 3 . J HENR Y DE S TA UN TON. 8 7 
 
 end of the reign of Edward L, gained great wealth and 
 reputation as an advocate. In the second year of Ed- 
 ward II., he was made a Puisne Judge of the Common 
 Pleas ; and at the end of six years, while he still continued 
 in the same office, he was summoned to parliament, not 
 merely to advise, like the other judges, but to assent to, 
 the measures to be brought forward. It is a curious cir- 
 cumstance, that, although he took his seat as a member 
 of the House, he did not receive a similar summons to 
 any subsequent parliament. 1 
 
 Two years afterwards, he was made Chief Justice of the 
 King's Bench ; and he held the office, with high reputa- 
 tion, for ten years, when he was removed from it in the 
 convulsions which marked the conclusion of this reign. 
 But he was restored to the bench when Edward III. had 
 established his authority, as sovereign, by putting down 
 his mother and her paramour ; and he died in 1336, full 
 of days and of honors. 
 
 From him were descended the Lords Scrope of Bol- 
 ton ; and his younger son, after being a great warrior, be- 
 coming Lord Chancellor, established another branch of 
 this illustrious house. 8 
 
 On his first removal he was succeeded by Henry de 
 Staunton, who filled a greater variety of judicial offices 
 than any lawyer I read of in the annals of Westminster 
 Hall. This extraordinary man was a younger brother of 
 a respectable family that had long been seated in the 
 county of Nottingham. He seems, when quite a boy, to 
 have conceived a passion for the law ; and to gratify him, 
 he was sent to an inn of court, without having been at 
 any university, His steadiness in juridical studies was 
 equal to his ardor ; and, while yet a young man, having 
 served his " apprenticeship " with great credit, he reached 
 the dignity of serjeant, and was in great and profitable 
 practice in all the courts. For nine years he was a Puisne 
 Judge of the Common Pleas from 1306 to 1315. He 
 
 1 The doctrine that " summons and sitting constitute an hereditary peer- 
 age," is now fully established, and has often been acted upon ; but in earlier 
 times the King seems to have exercised the prerogative of summoning any 
 knight to sit in the House of Lords for a single parliament, without incurring 
 the obligation of again summoning him, or of summoning his descendants 
 after his death. 
 
 1 See Lives of Chancellors, vol. i. ch. xvi. ; Dugd. Bar. and Ch. Ser.
 
 88 REIGN OF EDWARD III. [1324. 
 
 was then transferred to the Exchequer, being first a 
 Puisne Baron, and then Chancellor of the Exchequer. 
 On the first of June, 1323, he was made Chief Justice of the 
 King's Bench, retaining his former place, which he was to 
 execute by deputy. In a few months, however, he ceased 
 to be a pluralist, and the Chancellorship of the Exchequer 
 was given to the Bishop of Exeter. 1 
 
 De Staunton remained Chief Justice of the King's 
 Bench, little more than a year, when he was made Chief 
 Justice of the Common Pleas, which was the more prof- 
 itable, and for several centuries afterwards was reckoned 
 the more eligible, appointment. 3 Finally, he concluded 
 his career as Lord Chief Baron of the Exchequer an 
 office which I think he must have accepted as an honor- 
 able retreat in his old age, as, although attended with 
 little labor, it has always been the lowest chiefship, both 
 in emolument and rank. This is held till his death. 3 
 
 He left no descendants ; and, having felt the want of 
 early education, he bequeathed his fortune to the found- 
 ation of a college in the University of Cambridge. 
 
 1 " Rex omnibus ad quos, &c. Sciatis quod cum dilectus Clericus et fide- 
 lis noster Henricus de Staunton Cancellarii Scaccarii nostri de mandate nos- 
 tro intendat officio Capitalis Justiciarii nostri ad placita coram nobis tenenda 
 per quod dicto officio Cancellarii ad praesens intendere non potest Custodiam 
 Sigilli nostri Scaccarii praedicti Venerabili Patri W. Exoniensi Episcopo 
 Thesaurario nostro commisimus," &c. " Teste Rege apud Skergill xxvij die 
 Septembris. Per breve de privato Sigillo." Pat. 17. Ed. 2. p. I. m. 9., et 
 iterum, m. 16. 
 
 " Dominus Rex mandavit W. Exoniensi Episcopo Thesaurario per breve 
 suum de privato sigillo suo cujus data est apud Skergill xvij die Septembris 
 hoc anno quod quia Hervicus de Staunton Capitalis Justiciarius de Banco 
 Regis, qui habuit custodiam Sigilli de Cancellar[ia] hujus Scaccarii de cae- 
 tero ad custodiam officii Cancellar[ii] intendere non protest," &c. Mich. 
 Commun., 17 Ed. 2 ; Rot. i. 6. In these two records it is observable, that 
 in one the chancellor of the exchequer is called Henry, and in the other Her- 
 uey de Staunton ; but from the context, it is clear that the names Henry and 
 Hervey are applied to the same individual. I may also add, that there is 
 a variance in the date of the appointment of the Bishop of Exeter , the one 
 record giving the 2 7th of Sept., and the other the I7th, although it is evident 
 that the one refers to the other. 
 
 1 Memorandum quod die Jovis in Vigilia sancti Jacobi Apostoli, anno regis 
 hujus vicesimo incipiente, Hervicus de Staunton pnestitit sacramentum, 
 coram Venerabilibus patribus W. Archiespiscopo Eboracensi Anglias Primate 
 thesaurario W. Exoniensi Episcopo Magistro R. de Baldock Cancellario 
 Regis, et baronibus de Scaccario et Justiciarii de communi banco de bene et 
 fideliter se habendo in officiis capitalis Justiciarii de banco prout moris est." 
 And at the same time Robert de Ayleston was sworn Chancellor of the Ex 
 chequer. Madd. Exch. Dug. Char. Ser. ; Beatson.
 
 1324.] HENR Y DE STA UNTON. 89 
 
 i 
 
 The following metrical history of him is given by the 
 poet Robert Cade, 1 duly celebrating his early legal pro- 
 ficiency, but unaccountably omitting his highest official 
 preferments : 
 
 " Sir William Staunton, Knight, was next, 
 
 Dame Athelin was his wife, 
 Sir Geoffrey Staunton, Knight, their heire, 
 
 Both voide of vice and strife. 
 " And Sir Henrie his brother was, 
 
 Who gave himselfe to learne, 
 That when he came unto man's state, 
 
 He could the Lawes discerne. 
 " And in the same went forward still, 
 
 And profited muche, I know, 
 At Ynnes of Courte a Counsailer 
 
 And Serjeant in the Lawe. 
 " And in processe of tyme indeede, 
 
 A Judge he came to bee 
 In the Common Benche at Westminster 
 
 Such was his highe degree. 
 " A Baron wise and of great wealthe, 
 
 Who built for Scholers gaine, 
 Sainte Michaels house in Cambridge Towne. 
 
 Good learninge to attaine ; 
 " Which deede was done in the eighteenth yeare 
 
 Of Second Edwards King, 
 One thousande three hundred twenty foure, 
 
 For whom they praye and singe. 
 " In which said house the Stauntons may 
 
 Send Students to be placed, 
 The Founder hath confirmed the same 
 
 It cannot be defaced. 
 " This Lord Baron no yssue had, 
 
 We cannot remember his wife, 
 
 Nor where his body tombed was 
 
 When death had cut off life."* 
 
 ' See Thoroton's History of Nottinghamshire. 
 
 * He is frequently mentioned in contemporary records, and must have 
 been a very considerable person in his day, although now fallen into such ob- 
 scurity. 
 
 In the 8th Edward II., Hervicus de Staunton and others are directed to 
 assess and levy a tallage on the City of London : I Rot. Parl. 449. And in 
 1320, 14 Edward II., reference is made to inquests taken before Johannes de 
 Insula, Hervicus de Staunton, and Adam de Lymberg, " quse sunt in 
 Sccio : " I Rot. Parl. 372 a. 
 
 In 1325, 19 Edward II., it appears that Henry Le Swan was tried at the 
 
 Eire of London " darreine passe devant Sire Henr de Staunton':" Rot. Parl. 
 And in the Patent Roll, 3 Edward III., certain proceedings are referred to 
 in an Inspeximus as having taken place in the I7th Edward II., " devant Sire 
 Henry de Staunton et ses compaignons justices a lez plez le dit vie' piere 
 tenir assignez." 2 Rot. Parl. 427.
 
 90 REIGN OF EDWARD III. [1343. 
 
 There was no other Chief Justice of much note till Sir 
 Robert Parnyng, who, for his great learning and ability, 
 was placed in the " marble chair," and whom I have al- 
 ready commemorated in the LIVES OF THE CHANCEL- 
 LORS. 1 
 
 After an obscure Chief Justice, called SIR WILLIAM 
 SCOTT," came a very eminent but very unprincipled one, 
 SIR WILLIAM DE THORPE, who was at first supposed to 
 be an ornament to his profession, but who brought deep 
 disgrace upon it. From an obscure origin he rose to 
 power and wealth, without being a churchman a very 
 unusual occurrence in those days ; but the law was be- 
 coming what it has since continued, one of the ties by 
 which the middling and lower ranks in England are 
 bound up with the aristocracy preventing the separation 
 of the community into the two casts of noble and roturier, 
 which has been so injurious in the continental states. 
 
 Having with difficulty obtained an adequate education, 
 soon after his call to the bar, he got business and favor 
 by singular zeal for his clients and subserviency to his 
 patrons. While of less than ten years' standing as a 
 barrister, he received the high rank of King's Serjeant, 
 and the following year he was made Attorney-General, 
 and was knighted. He remained in this office five years, 
 during which time he had the good fortune to gain the 
 personal confidence of Edward II., who was in the habit 
 of consulting him respecting the most expedient manner 
 of managing the House of Commons, and obtaining sup- 
 plies to carry on the French war. In 1347 he was ele- 
 vated to the office of Chief Justice of the King's Bench, 
 and he was for a time the King's principal adviser. On 
 the premature death of Parnyng, the great Seal was put 
 into the hands of men of little experience in business, 
 and Lord Chief Justice Thorpe was intrusted with the 
 domestic government of the kingdom. 
 
 At the parliament held on the King's return after the 
 glorious battle of Cresci, Sir William Thorpe was em- 
 ployed, in place of the Chancellor, to declare the causes 
 of the summons ; and he very dextrously flattered the 
 Commons by telling them that " it was the King's special 
 desire to be advised by them respecting the mode of car- 
 
 1 Vol. i. ch. xiv. * Dug. Chr. Ser. 44.
 
 1349-] WILLIAM THORPE. 91 
 
 tying on the war, and, next, how the peace of the nation 
 might be better kept." 1 
 
 After, grave deliberation, the Commons answered that 
 " they were not able to advise any thing respecting the 
 war, and, therefore, desired to be excused as to that point 
 being willing to confirm and establish whatever the 
 council and the nobles should determine thereupon. But 
 as to better keeping the peace of the nation, their advice 
 was, that in every county there should be six persons, of 
 whom two to be the greatest men in it, two knights, and 
 two men of the law, or more or less as need should be, 
 and they to have power and commission out of Chancery 
 to hear and determine matters concerning the peace. 
 And because they had been so long in parliament, to 
 their great cost and damage, 8 they might have a speedy 
 answer to their petitions, in order to get soon back to 
 their own homes." On Thorpe's suggestion, the measure 
 so recommended was promised, and hence our Justices 
 of the Peace and Quarter Sessions. But, there being still 
 an unwillingness to vote an adequate supply, parlia- 
 ment was dissolved, and great pains were used in in- 
 fluencing the elections for the new one which was called. 
 
 When it met, Chief Justice Thorpe again made the 
 speech by which the session was opened, and tried to 
 rouse the indignation of the Commons by asserting that 
 " the French had broken the conditions of the truce 
 lately granted to them at Calais, and were preparing a 
 puissant army wherewith to invade the realm." He there- 
 fore urged that " they should be armed betimes against 
 the worst which might happen, and see that this war, 
 which was undertaken by the advice and consent of 
 the parliament, might have a prosperous ending." A 
 liberal supply was granted, and the Chief Justice speed- 
 ily, in the King's name, pronounced the prorogation.* 
 
 Although he now seemed so powerful and prosperous, 
 disgrace and ruin were hanging over him. Parliament 
 again met in the following year, but, instead of opening 
 it with royal pomp in the King's name, he stood at the 
 
 1 During the Plantagenet reigns, there are frequent instances of the 
 King consulting the Commons on questions of foreign, as well as domestic 
 policy. 
 
 2 The session had lasted above a fortnight, 
 1 I Parl. Hist. 115 nS.
 
 92 REIGN OF EDWARD III. [1350. 
 
 bar of the House of Lords as a criminal. He had been 
 detected in several gross acts of bribery, for which he 
 was now impeached. The record of his trial is not pre- 
 served, and we have no particulars of the offenses laid 
 to his charge. The common tradition is, that sentence 
 of death was actually passed upon him ; and Oliver St. 
 John, in his famous speech on ship-money, in the reign 
 of Charles I., says, " Sir William Thorpe, Chief Justice 
 of the King's Bench in Edward III.'s time, having of 
 five persons received five several bribes, which in all 
 amounted to 100, was for this alone adjudged to be 
 hanged, and his lands and goods forfeited." I cannot 
 help thinking, however, that this is an exaggeration ; no 
 treason was alleged against the Chief Justice, and, as 
 mere bribery could not be construed into a capital 
 offense by any known law, he could not have received 
 such a sentence, unless under an act of attainder ; and 
 there is no ascertained instance of such a proceeding 
 before the reign of Henry VIII. The entry in the Close 
 Roll, recording the appointment of a new Chief Justice, 
 merely says, " Will, de Thorpe, Capitalis Justic. pro 
 quibusdam maleficiis, &c., omnia bona terras, &c., foris- 
 fccit." 1 It is possible that a capital sentence might have 
 been pronounced ; and St. John, pretending to have 
 seen the original record, says, " The reason of this record 
 is entered in the Roll in these words, ' Quia prasdictus 
 Willielmus Thorpe, qui sacramentum domini regis erga 
 populum suum habuit ad custodiendum, fregit malitiose, 
 false et rebelliter, quantum in ipso fuit,' because that he 
 as much as in him lay had broken the King's oath unto 
 the people which the King had intrusted him withal. 
 The next year, -25 Edward III., it was debated in parlia- 
 ment whether this judgment was legal et nullo contra- 
 diccnte, it was declared to be just and according to the 
 law ; and that the same judgment may be given in time 
 to come upon the like occasion. This case is in point 
 that it is death for any judge wittingly to break his oath 
 or any part of it." Yet I suspect that the patriotic 
 orator, inveighing against the judges who had, contrary 
 to their oaths, decided for the legality of ship-money, 
 invented the capital sentence upon Thorpe, whose guilt 
 
 1 Claus. 24 Ed. Ill, in dorso, m. 4.
 
 1353] WILLIAM SHARESHALL. 93 
 
 he represents as comparatively venial. 1 The delinquent 
 certainly did not suffer the last penalty of the law ; but, 
 being degraded from his office, and stripped of his ill- 
 gotten wealth, he languished a few years, and died a 
 natural death." 
 
 He was succeeded by Sir William Shareshall, a Puisne 
 Judge of the Common Pleas, 3 of whom little is known 
 except that he was employed to make the opening 
 speech to the two Houses at the commencement of 
 three successive parliaments. 
 
 On the first occasion he enlarged upon the internal 
 state of the country, and upon his recommendation were 
 passed the famous " Statute of Treasons," defining crimes 
 against the state, and the " Statute of Laborers," show- 
 ing our ancestors to have been then under the delusion, 
 now so fatal to our continental neighbors, that the 
 " organization of labor " is a fit subject for legislation. 
 
 In the following year, the war with France being re- 
 newed, the Chief Justice thus tried to excite indignation 
 and to obtain supplies : 
 
 "You are assembled to consider the title of our Lord 
 the King to the crown of France. You know that 
 Philip de Valois usurped it all his life ; and not only so, 
 but testified his enmity to England by stirring up war 
 against our King in Gascony, and other dominions 
 belonging to him, seizing upon his rights and pos- 
 sessions, and doing all possible mischief to him both 
 by sea and land. In former parliaments this matter has 
 been propounded to you on behalf of the King, and 
 your advice requested what was best to be done. After 
 good deliberation you declared that you knew no other 
 
 1 3 St. Tr. 1273. The improbability of such a resolution being come to 
 in the 25th Ed. III. is very great indeed, when we consider that in this very 
 year Parliament passed the famous Statute of Treason (25 Ed. III. st. 5. c. 
 2.), by which the subject is so anxiously guarded against such vague charges. 
 
 2 We are not told the amount of his salary as Chief Justice, but Dugdale 
 says, " Sir William Thorpe, 21 Ed. I., then Chief Justice of the King's 
 Bench, was allowed out of the King's wardrobe at the Feast of All Saints, 
 for his Winter Robes, half a cloth colour curt, three furs of white budg, and 
 one hood of the same budg : and for his livery at Christmas, half a cloth 
 likewise colour curt, and one hood curt, one hood containing xxxii bellies of 
 minever helf pur, one fur of minever containing seven tires and two furs of 
 silk, each of seven tires." Or. Jur. p. 98. 
 
 * Dug. Cher. Ser.
 
 94 REIGN OF EDWARD III. [1353. 
 
 course than that the King, procuring allies, should go 
 against his adversary by main force, and to enable him 
 to do this you promised to aid him with body and goods. 
 Whereupon he made alliances with several foreign 
 princes and powers, and by the help of the good people 
 of England, and the blessing of God, he gained great 
 victories, yet without being able to obtain a lasting 
 peace. The King has assented to truces, but his ad- 
 versary deceitfully broke these, actuated by implacable 
 malice against him and his friends. Now, after Philip's 
 decease, John, his son, has wrongfully possessed himself 
 of the kingdom of France, has broken the existing truce 
 both in 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 
 him, and for the good will he has always found in you, 
 now submits the matter to your consideration, and prays 
 that you will take time to consult about it, and that 
 at sunrise on the morrow you will come to the Painted 
 Chamber to hear if the King will say anything further to 
 you, and to show him your grievances, so that relief may 
 be given to them at this meeting. Further, I charge the 
 Commons, in the King's name, to shorten your stay in 
 town, and that, for the quicker despatch of business, 
 you immediately make choice of twenty-four or thirty 
 persons out of your 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." 1 
 
 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 
 
 1 I ParL 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 from 
 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. 1 
 
 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 original 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 a 
 small possession ; and John, the son of the marriage, 
 being of an aspiring nature, and seeing that in peaceable 
 times promotion was to be gained by civil rather than 
 military service, studied the law, was called to the 
 bar, and soon gained the first-rate practice as an ad- 
 vocate. Such was his reputation, that, in the year 1366, 
 Edward III., after the peace of Bretigni, being desirous 
 of making himself popular by good judicial appoint- 
 ments, raised John de Cavendish to the office 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 Hall. 
 
 Lord Chief Justice Cavendish held his office sixteen 
 years, being reappointed on the accession of Richard II., 
 with an advance in his salary to 100 marks a year. At 
 
 1 Lives of the Chancellors, vol. i. pp. 226.
 
 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 Smithfield by Sir William Walworth, there 
 was a rising in Norfolk and Suffolk, under the conduct 
 of a leader much more ferocious, who called himself 
 Jack Straw, and incited his followers to more frightful 
 devastations than any ever committed before or since in 
 a jacquerie movement in England, where, in the worst 
 times, some respect has been shown to the influence of 
 station and the dictates of humanity. A band of them, 
 near 50,000 strong, as infuriated as the canaille of Paris 
 or the peasants of Gallicia in the crisis of a revolution, 
 marched to the Chief Justice's mansion at Cavendish, 
 which they plundered and burned. The venerable Judge 
 made his escape, but was taken 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 ; Jack 
 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. 1 
 
 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 individual, 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 Privy Councillor. Taking 
 
 1 Walsingham.
 
 I 3 82.] 
 
 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. 
 17-
 
 CHAPTER III. 
 
 CHIEF JUSTICES TILL THE DEATH OF SIR WILLIAM 
 GASCOYNE. 
 
 WE next come to a Chief Justice of the King's 
 Bench who actually suffered the last penalty 
 of the 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 Bench.' 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 
 
 1 Gentleman's Magazine, vol. Ixiv. p. 325. I suspect that he is assigned 
 to Cornwall only on the authority of 
 
 " By Tre, Pol and Pen, 
 
 You know Cornish men." 
 Close Roll, I Rich II. Liberal, ab anno i. usque ult. Ric. II. m. 15.
 
 1382.] ROBERT TRESILIAN. 99 
 
 influence of this minion, Tresilian, 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 Essex men, in 
 a body of about 500, addressed themselves barefoot to 
 the King for mercy, and had it granted upon condition 
 that they should deliver up to justice the chief 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." 1 
 
 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 favorites. 
 " 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." 9 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 
 1 Kennet, i. 248. * Ib. 253.
 
 ioo REIGN OF RICHARD II. [1387 
 
 made to crush them. Meeting with encouragement, he 
 secretly left London, and, being joined by the Duke of 
 Ireland, went to the King, who was at Nottingham in a 
 progress through the midland counties. He then 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. II., at the castle of 
 Nottingham, before our said lord the King, Rob. Tre- 
 silian, chief justice of England, and Robt. Belknappe, 
 chief justice of the common bench of our said lord the 
 King, John Holt, Roger Fulthorp, and Wm. de Burg, 
 knights, justices, &c., and John de Lokton, the King's 
 serjcant-at-law, 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, yiz : 
 
 "I. It was demanded of them, 'Whether that new 
 statute, ordinance, and commission, made and published 
 in the last parl. 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 be
 
 1387.] ROBERT TRESILIAN. 101 
 
 punished with death, except the King would pardon 
 them. 
 
 " 3. ' How those are to be punished who moved the 
 King to consent to the making of the said statute? ' A. 
 That they ought to lose their lives unless his Maj. would 
 pardon them. 
 
 " 4. 'What punishment they deserved who compelled, 
 straightened, or necessitated the King to consent to the 
 making of the said statute and commission ? ' A. That 
 they ought to suffer as traitors. 
 
 " 5. ' How those are to be punished who hindered the 
 King from exercising those things which appertain to his 
 royalty and prerogative ? ' A. That they are to be pun- 
 ished as traitors. 
 
 " 6. ' Whether after in a parl. assembled, the affairs of 
 the kingdom, and the cause of calling that parl. are by 
 the King's command declared, and certain articles limited 
 by the King upon which the lords and commons in that 
 parl. ought to proceed ; if yet .the said lords and com- 
 mons will proceed altogether*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 
 contrary ; whether in such case the King ought not to 
 have the governance of the parl. and effectually overrule 
 them, so as that they ought to proceed first on the mat- 
 ters proposed by the King : or whether, on the contrary, 
 the lords and commons ought first to have the king's an- 
 swer upon their proposals before they proceed further ? ' 
 A. That the King in that behalf has the governance, 
 and may appoint what shall be first handled, and so gra- 
 dually what next in all matters to be treated of in parl., 
 even to the end of the parl. ; and if any act contrary to 
 the King's pleasure made known therein, they are to be 
 punished, as traitors. 
 
 " 7. ' Whether the king, whenever he pleases, can dis- 
 solve the parl. and command the lords and commons to 
 depart from thence, or not ? ' A. That he can ; and if any 
 ;>ne shall then proceed in parl. against the King's will, he 
 3 to be punished as a traitor. 
 
 " 8. ' Since the King can, whenever he pleases, remove
 
 io2 RETGN OF RICHARD II. [^S;. 
 
 any of his judges and officers, and justify or punish them 
 for their offenses ; whether the lords and commons can, 
 without the will of the King, impeach in parl. any of the 
 said judges or officers for any of their offenses?' A. 
 That they cannot ; and if any one should do so, he is to 
 be punished as a traitor. 
 
 "9. 'How he is to be punished who moved in parl. 
 that the statute should be sent for whereby Edw. II. (the 
 King's great grandfather) was proceeded against and de- 
 posed in parl. ; by means of sending for and imposing 
 which statute, the said late statute, ordinance, and com- 
 mission were derived and brought forth in parl.?' A. 
 That as well he that so moved, as he who by pretense 
 of that motion carried the said statute to the parl., are 
 traitors and criminals to be punished with death. 
 
 " 10. ' Whether the judgment gjven in the last parl. 
 held in Westm. against Mich, de la Pole, earl of Suffolk, 
 was erroneous and revocable, or not? ' A. That if that 
 judgment were now to be given, they would not give it ; 
 because it seems to them that the said judgment is re- 
 vocable, as being erroneous in every part of it. 
 
 " In testimony of all which, the judges and Serjeants 
 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 Ireland, Mich, earl 
 of Suffolk, John Rypon, clerk, and John Blake, esq. ; 
 given the place, day, month, and year aforesaid." 
 
 Tresilian exultingly thought that he had not only got 
 rid of the obnoxious Commission, but that he had anni- 
 hilated the power of Parliament by the destruction of 
 parliamentary privilege, and by making the proceedings 
 of the two Houses entirely dependent on the caprice of 
 the Sovereign. 
 
 He then attended Richard to London, where the opin- 
 ion of the Judges against the legality of the Commission 
 was proclaimed to the citizens at the Guildhall ; and all 
 who should act under it were declared traitors. A 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 themselves 
 on the question of law ; and, under the guidance of Tresil-
 
 1387.] ROBERT TRESILIAN. 103 
 
 Ian, a bill of indictment was actually prepared against 
 them for a conspiracy to destroy the royal prerogative. 
 Thomas Ush, the under sheriff, promised to pack a jury 
 +o convict them ; Sir Nicholas Brambre, who had been 
 thrice Lord Mayor, undertook to secure the fidelity of 
 the "itizens ; and all the City Companies swore that they 
 would live and die with the King, and fight against his 
 enemies to their last breath. Arundel, Bishop of Ely, 
 was still Chancellor; but Tresilian considered that the 
 Great Seal was now within his own grasp, and after the 
 recent examples, in Parnynge and Knyvet, of Chief 
 Justices becoming Chancellors, he anticipated no obstacle 
 to hk elevation. 
 
 At such a slow pace did news travel in those days, that, 
 on the night of the roth of November, Richard and his 
 Chief Justice went to bed thinking that their enemies 
 were annihilated, and next morning they were awoke by 
 the intel.igence that a large force, under the Duke of 
 Gloucester and the Earls of Arundel and Nottingham, 
 was encan.ped at Highgate. The confederate Lords, 
 hearing of the proceedings at Nottingham, had imme- 
 diately rusl.ed to arms, and followed Richard towards 
 London, with 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, they approached Aldgate, 
 and they appeared so formidable, that a treaty was en- 
 tered into, ac:ording to which they were to be supplied 
 with all necessaries, on payment of a just price, and 
 deputies fron. them were to have safe conduct through 
 the City on their way to the king at Westminster. Rich- 
 ard himself agieed that on the following Sunday he would 
 receive the deputies, sitting on his throne in Westminster 
 Hall. 
 
 At the appo.nted hour he was ready to receive them, 
 but they did rot arrive, and he asked " how it fortuned 
 that they kep: not their promise?" Being answered, 
 " Because there is an ambush of a thousand armed men 
 or more in a place called the Mews, contrary to cov- 
 enant ; and therefore they neither come, nor hold you 
 f aithful to your word," he said, with an oath, that " he
 
 io 4 REIGN OF 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, reached 
 Westminster, with a gallant troop of gentlemen ; and as 
 soon as they had entered the great hall, and saw the 
 King in his royal robes sitting on the throne, with the 
 crown on his head and the sceptre in his hand, they 
 made obeisance three times ?.s they advanced, and when 
 they reached the steps of the throne they knelt down 
 before him with all seeming humility. He, feigning to 
 be pleased to see them, rose and took each of tJiem by 
 the hand, and said, " he would hear their plairt, as he 
 was desirous to render justice to all his subjects." 
 Thereupon they said, " Most Dread Sovereign, we ap- 
 peal of high treason Robert Tresilian, that fa/se justice, 
 Nicholas Brambre, that disloyal knight ; the Archbishop 
 of York; the Duke of Ireland ; and the Earl of Suffolk :" 
 and, to prove their accusation to be true, they threw 
 down their gauntlets, protesting, by their oaths, that 
 they were ready to prosecute it to battle. " Nay," said 
 the King, " not so ; but in the next parliament (which 
 we do appoint beforehand to begin the moirow after the 
 Purification of our Lady), both they and you, appearing, 
 shall receive according to law what law doti 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 beiig attainted in 
 the manner to be hereafter described. 
 
 The elections for the new Parliament ran strongly in 
 favor of the confederate Lords ; and, 0:1 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
 
 1389.] ROBERT TRESILIAN. 105 
 
 Chief Justice Tresilian ; but he was nowhere to be 
 found. 
 
 When the members of both Houses had assembled in 
 Westminster Hall, and the King had taken his place on 
 the throne, the five Lords, who were called APPEL- 
 LANTS, 
 
 " Entered in costly robes, leading one another hand in 
 hand, an innumerable company following them, and, ap- 
 proaching the King, they all with submissive gestures 
 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 prelude to what was going to be acted, each 
 of the Prelates, Lords, and Commons, 1 then assembled, 
 had the following oath administered to them upon the 
 rood or cross of Canterbury in full parliament.: 'You 
 shall swear that you will keep, and cause to be kept, the 
 good peace, quiet, and tranquillity of the kingdom ; and 
 if any will do to the contrary thereof, you shall oppose 
 and disturb him to the utmost of your power ; and if 
 any will do any thing against the bodies of the five 
 Lords, you shall stand with them to the end of this 
 present parliament, and maintain and support them with 
 all your power, to live and die with them against all men, 
 no person or thing excepted, saving always your legiance 
 to the King and the prerogatives of his crown, according 
 to the laws and good customs of the realm.' " a 
 
 Written articles to the number of thirty-nine were 
 then exhibited by the appellants against the appellees. 
 
 1 It will be observed, that although the Commons took this oath, they had 
 nothing to do with the trial, either as accusers or judges. At this time 
 there might be an appeal of treason in parliament by private persons, the 
 Lords being the judges ; but all appeals of treason in parliament were 
 taken away by i Hen. IV. c. 14. See Bract. 119. a ; 3 Inst. 132. 
 
 * I St. Tr. 89-101 ; i Par). Hist. 196-210.
 
 106 REIGN OF RICHARD II. [1389. 
 
 The other four are alleged to have committed the 
 various acts of treason charged upon them " by. the 
 assent and counsel of Robert Tresilian, that false Jus- 
 tice "; and in most of the articles he bears the brunt of 
 the accusation. Sir Nicholas Brambre alone was in cus- 
 tody; and the others not appearing 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 articles 
 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, the Duke of Ireland, the Archbishop 
 of York, and Earl of Suffolk, should be drawn and 
 hanged as traitors and enemies to the King and king- 
 dom, and that their heirs should be disinherited forever, 
 and that their lands and tenements, goods and chattels, 
 should be forfeited to the King." 
 
 Tresilian might have avoided the execution of his sen- 
 tence, had it not been for the strangest infatuation re- 
 lated of any human being possessing the use of reason. 
 Instead of flying to a distance, like the Duke, the Arch- 
 bishop, and the Earl, none of whom suffered although 
 his features were necessarily well known, he had come to 
 the neighborhood of Westminster Hall on the first day 
 of the session of parliament ; and, even after his own at- 
 tainder had been published, trusting to his disguise, his 
 curiosity induced him to remain to watch the fate of his 
 associate, Sir Nicholas Brambre. 
 
 This chivalrous citizen, who had been knighted for the 
 bravery he had displayed in assisting Sir William Wai- 
 worth to kill Wat Tyler and to put down 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
 
 1389.] ROBERT TRESILIAN. 107 
 
 lists to maintain my innocency whenever the King shall 
 appoint !" " This," says a chronicler, " he spake with such 
 a fury, that his eyes sparkled with rage, and he breathed 
 as if an Etna lay hid in his breast ; choosing rather to 
 die gloriously in the field, than disgracefully on the gib- 
 bet." 
 
 The appellants said " they would readily accept of the 
 combat," and, flinging down their gages before the King, 
 added, " we will prove these articles to be true to thy 
 head, most damnable traitor !" But the Lords resolved, 
 " that battle did not lie in this case ; and that they 
 would examine the articles with the proofs to support 
 them, and consider what judgment to give, to the advan- 
 tage and profit of the King and kingdom, and as they 
 would answer before God." 
 
 They adjourned for two days, and met again, when a 
 number of London citizens appeared to give evidence 
 against Brambre. For the benefit of the reader, the 
 chronicler I have before quoted shall continue the 
 story : 
 
 " Before they could proceed with his trial, they were 
 interrupted by unfortunate Tresilian, who being got upon 
 the top of an apothecary's house adjoining to the palace, 
 and descended into 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 where 
 he was, and having spent long time in vain in looking 
 for him, at length one of the guard stept to the master 
 of the house, and taking him by the shoulder, with his 
 dagger drawn, said, thus, ' Show us where thou hast hid 
 Tresilian, or else resolve thy days are accomplished.' 
 The master, trembling and ready to yield up the ghost 
 for fear, answered, ' Yonder is the place where he lies' ; 
 and showed him a round table covered with branches of 
 bays, under which Tresilian lay close covered. When 
 they had found him they drew him out by the heels, 
 wondering to see him wear his hair and beard overgrown, 
 with old clouted shoes and patched hose, more like a 
 miserable poor beggar than a judge. When this came to 
 the ears of the peers, the five appellants suddenly rose 
 up, and going to the gate of the hall, they met the guard
 
 io8 REIGN OF RICHARD II. [1389. 
 
 leading Tresilian, bound, crying, as they came, ' We have 
 him, we have him.' Tresilian, being come into the hall, 
 was asked ' what he could say for himself why execution 
 should not be done according to the judgment passed 
 upon him for his treasons so often committed ? ' but he 
 became as one struck dumb, he had nothing to say, and 
 his heart was hardened to the very last, so tliat 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 Tresilian 
 is put upon an hurdle, and drawn through the streets of 
 the city, with a wonderful concourse of people following 
 him. At every furlong's end he was suffered to stop, that 
 he might rest himself, and to see if he would confess or 
 acknowledge any thing ; but what he said to the friar, 
 his confessor, is not known. When he came to the place 
 of execution he would not climb the ladder, until such 
 time as being soundly beaten with bats and staves he was 
 forced to go up ; and, when he was up, he said, ' So long 
 as I do wear any thing upon me, I shall not die ;' 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 parchment ; these being taken away he was 
 hanged up naked, and after he had hanged up some time, 
 that the spectators should be sure he was dead, they 
 cut his throat, and because the night approached they let 
 him hang till the next morning, and then his wife, hav- 
 ing obtained a license of the King, took down his body, 
 and carried it to the Gray-Friars, where it was buried." 1 
 
 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 
 Westminister, he (Tresilian) thought to go and lie there 
 to learn what should be done ; and so he came and 
 lodged at Westminster the same day their Council 
 began, and lodged at an ale-house right over against the 
 1 1 StTr. 115118.
 
 i 3 s 9 .J ROBERT TRESILIA::. 109 
 
 palace gate, and there he was in a chamber looking 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 are like 
 him.' ' Sir,' quoth he, ' I am of Kent, and a farmer of 
 Sir John of Hollands, and there be men of the Bishop 
 of Canterbury's that would do me wrong ; and I am 
 come hither to complain to the Council.' ' Well,' quoth 
 the squire, ' if you come into the palace I will help to 
 make your way, that you shall speak with the Lords of 
 the Council.' ' Sir, I thank you,' quoth he, ' and I shall 
 not refuse your aid.' Then the squire called fora pot of 
 ale, and drank with him, and paid for it, and bade him 
 farewell, and departed ; and never ceased till he came to 
 the Council Chamber door, and called the usher to open 
 the door. Then the usher demanded what he would, 
 because the Lords were in Council ; he answered and 
 said, ' I would speak with my lord and master the Duke 
 of Gloucester, for a matter that right near toucheth 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
 
 no REIGN OF RICHARD II. [1389. 
 
 shall have him ere you go to dinner, if you please.' ' I 
 am content,' quoth the Duke, ' and he shall show 
 us some news of his master the Duke of Ireland ; go thy 
 way and fetch him, but look that thou be strong enough 
 so to do that thou fail not.' The squire went forth and 
 took four Serjeants with him, and said, ' Sirs, follow me 
 afar off; and as soon as I make to you a sign, and that I 
 lay my hand on a man that I go for, take him and let 
 him not escape.' Therewith the squire entered into the 
 house where Tresilian was, and went up into the 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 right joyful, and 
 would see him, and when he was in his presence the 
 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 hither to learn tidings, and he is at Bristol, and 
 hunteth along the river Severn.' ' What,' quoth the 
 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 knight.' 
 ' Sir,' quoth Tresilian, ' if I have trespassed, I ask pardon, 
 for I was caused this to do.' ' Well, sir,' quoth the 
 Duke, ' and where is your master the Duke of Ireland ?' 
 ' Sir,' quoth he, ' of a truth he is 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, and said, ' Ah, Tresilian, Tresilian ! your 
 business is neither fair nor good ; you have done great
 
 1389.] ROBERT BELKNAPPE. in 
 
 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 me, and you have troubled to your power, 
 and with your counsel, the King, and divers others, 
 nobles of the realm ; also you have moved certain good 
 towns against us. Now is the day come that you shall 
 have your 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." 1 
 
 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 flattered the vices of the unhappy 
 Richard ; and historians agree, that, in prosecuting his 
 personal aggrandizement, he was utterly regardless of 
 law and liberty. 2 He died unpitied, and, notwithstand- 
 ing the " historical doubts " by which we are beset, no 
 one as yet has appeared to vindicate his memory. 
 
 He left behind him an only child, a daughter, who was 
 married into the respectable family of Howley, from 
 whom descended the late venerable Archbishop of Can- 
 terbury. 3 
 
 I must now give some account of his contemporary, 
 SIR ROBERT BELKNAPPE, Chief Justice of the Common 
 
 1 Frois. part 2. fol. no. 
 
 * Thus Guthrie says (A. D. 1384), " 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 cause the 
 Duke to be arrested, to proceed against him as a common traitor." Vol. ii. 
 p. 326. 
 
 " Tresilian had 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 in 
 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. 349. 
 
 * Gentleman's Magazine, vol. Ixiv. p. 325.
 
 ii2 REIGN OF RICHARD II. [1377. 
 
 Pleas, who, although trepanned into the unconstitutional 
 and illegal act of signing the answers which Tresilian 
 had prepared at Nottingham, with a view to overturn 
 the party of the Duke of Gloucester and the Barons, 
 appears to have been a respectable Judge and a worthy 
 man. 
 
 The name of his ancestors (spelt Belknape) is to be 
 found in the list of the companions of William the 
 Conqueror who fought at Hastings, preserved in Battle 
 Abbey. 1 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 sent 
 to push his fortune in the inns of court, and he acquired 
 such a taste for the law, that on the death of his father 
 and elder brother, while he was an apprentice, he resolved 
 still steadily to follow his profession, and to try for its 
 honors. After some disappointments he was made a 
 King's Sergeant ;* and finally his ambition was fully 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 Tresilian. He was permitted, 
 however, to retain " the pillow of the Common Pleas ;" 
 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 did not take any part in the struggle which ended 
 
 1 Thierry, Nor. Con. ii. 385. 
 
 * While King's Sergeant, he seems to have had a salary of 20 a year, in 
 respect of which he was sometimes sent as a judge of assize, and sometimes 
 he pleaded crown cases as an advocate : 
 
 " Issue Roll, 44 Edward III. 
 
 " Robert Belknaooe \- ^ ^' jert Belknappe, Oiis of the Justices to 
 " ' ) hold the assizes in divers couniies in the kingdom 
 of England, and to deliver the gaols there, receiving yearly 20 for his fee 
 in the office aforesaid. In money delivered to him for half a year's pay- 
 ment, 10. 
 
 " To the same Robert, one of the King's Serjeants, in money delivered to 
 him in discharge of the 10 payable to him at Michaelmas Term last past, 
 for the 20 yearly, which the Lord the King lately granted to the same 
 Robert, to be received at the Exchequer in aid of his expenses in prosecut- 
 ing and defending his business, ,10." Devon's Jsstte Rolls, p. 369. m. 14.
 
 1389.] ROBERT BELKNAPPE. 113 
 
 in the Commission for making fourteen Barons viceroys 
 over the King; 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 Barons ; and showed him the questions to be 
 submitted to the Judges, with the answers which they 
 were desired to return. He saw that many of these 
 answers were contrary to law, and, though extrajudicial 
 opinions were given without scruple by the Judges to 
 the Crown ages afterwards, he was startled by the danger 
 to which he must expose himself by openly flying in the 
 face of those who were actually in possession of supreme 
 power. He therefore flatly refused to sign the answers, 
 and he did not yield till the Duke of Ireland and the 
 Earl of Suffolk were called in and threatened to put 
 him to death if he remained contumacious any longer. 
 Thereupon he did sign his name under Tresilian's, say- 
 ing, " Now I want nothing but a hurdle and halter to 
 bring me to that death I deserve. If I had not done 
 this, I should have been killed by your hands ; and, now 
 I have gratified the King's pleasure and yours in doing 
 it, I have well deserved to die for betraying the nobles 
 of the land." 1 
 
 Belknappe observed with great dismay the King's 
 march to London, 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 of Brambre and the apprehension and execution 
 of Tresilian. 
 
 1 Another account makes him say, " Now I want nothing but a ship, or a 
 nimble horse, or a halter to bring me to that death I deserve " (3 7yrrell, 
 906) ; and a third, " Now here lacketh nothing but a rope, 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 King's, I have done it, and thereby deserve death at the hands of the 
 Lords." (3 Holin. 456.) 
 I S.
 
 U4 REIGN OF RICHARD II. [1389. 
 
 The House of Commons then took up the prosecu- 
 tion against Sir 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 recorded ; but Sir Robert Bel- 
 knappe pleaded the force put upon 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, were taken and holden for sages in the law; 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 
 matter, 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
 
 1389.] ROBERT BELKNAPPE. 115 
 
 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 obtain 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 " he would grant the condemned 
 Judges their lives, but the rest of the sentence was to be 
 in full force, and their bodies were to remain in prison 
 till he, with the advice of the Lords, should direct 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 40 a year.* 
 
 1 I Parl. 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 Kennet, 263. 
 
 This Parliament was rather unjustly called " The Merciless Parliament." 
 4 Rapin, 49. Others more justly called it " The Wonder-working Parlia- 
 ment." I Kennet, 262. 
 
 3 3 Tyrrell, 630, 632. 
 
 4 " 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 the King's hands, as for- 
 feited to the King, for the reason aforesaid : whereupon, the said Lord the 
 King being moved with mercy and piety, and wishing and being desirous of
 
 n6 REIGN OF RICHARD II. [1389. 
 
 He was accordingly 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. 1 He was subsequently 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. 2 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 of 
 several of his forfeited estates. 
 
 He never again appeared in public life, but retired into 
 the country, and, reaching extreme old age, became fa- 
 mous for his piety and his liberality to the Church. By 
 a deed bearing date October 8th, in the second year of 
 King Henry IV., he made over a good estate to the 
 Prior of St. Andrew, in Rochester, to celebrate mass in 
 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. 3 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 the support of the same Robert, towards 
 whom he was moved with pity, did remit and pardon the execution of the 
 judgment aforesaid, at the request of very many of the prelates, great men 
 of the estate, and other nobility of this realm, lately attending the said par- 
 liament ; and of his especial grace, with the assent of his council, of the I3th 
 day of July, in the I2th year of his reign, granted to the same Robert 40 
 yearly, to be received during his life out of the issues and revenues of the 
 manor lands and tenements aforesaid, to be paid by the hands of the farmers 
 thereof for the time being, &c., according to an ordinance of the Parliament 
 aforesaid. In money paid to him by the hands of Juliana, his wife, viz., by 
 assignment made to the same Juliana this day, 20, and in money counted, 
 20 and 40. (A list of the horses, with a description of them, belonging 
 to the said Robert, is entered on this Roll.)" Devon's Issue Rolls, 240. 
 
 1 " Drouda et infra prsecinctum trium leucarum circa dictum villain." 
 Rymer, vol. vii. 591. 
 
 * 3 Tyrrell, 959 ; I Kennet, 274. 
 
 1 This estate still belongs to the Dean and Chapter of Rochester. See 
 Hasted's Kent. iii. 474.
 
 1389.] WILLIAM THIRNYNGE. n 7 
 
 disqualified to join as a plaintiff, she was entitled to the 
 privilege of suing as a feme sole ; although Chief Justice 
 Markham exclaimed, 
 
 " Ecce modo mirum, quod foemina fert breve regis, 
 Non nominando virum conjunctum robore legis." 1 
 
 The attainder was reversed in favor of Sir Hamon 
 Belknappe, the Chief Justice's son. The male line of the 
 family failed in a few generations ; but the Stanhopes, 
 the Cokes, and the Shelleys, now flourishing, are proud 
 of tracing their pedigree to the Chief Justice, notwith- 
 standing the ignominious sentence passed upon him. 
 
 There is only one other Chief Justice who flourished 
 in the reign of Richard II. of sufficient eminence to be 
 commemorated, Sir WILLIAM THIRNYNGE, who pro- 
 nounced upon that unfortunate monarch the sentence 
 of deposition. The family of this great lawyer seems to 
 have been unknown, both before and after his short il- 
 lustration of it. He was made a Puisne Judge of the 
 Common Pleas in the year 1388," at a famous time for 
 promotion in Westminster Hall, one Chief Judge being 
 hanged, and all the other Judges being cashiered, at- 
 tainted, and banished. 3 He probably was not, pre- 
 viously, of much mark or likelihood, but he proved to 
 be one of the most distinguished magistrates who ever 
 sat on the English bench, being not only deeply versed 
 in his profession, but of spotless purity and perfect in- 
 dependence. On the death of Sir Robert de Charleton, 
 who had been appointed Chief Justice of the Common 
 Pleas in the room of Belknappe, he succeeded to that 
 office, 4 which he filled with high credit in three reigns. 
 
 1 Lord Chancellor Ellesmere, in citing this decision in the case of the 
 PASTNATI, states that Sir Robert Belknappe had been banished into Gascony 
 " relegatus in Vasconiam" and that he continued there in the reign bf Henry 
 IV. whereas, Ireland was the nlace of his banishment, and he had been re- 
 called by Richard II. See 2 S't. Tr. 559. 
 
 3 nth April, Pat. II Rich. II, p. 2. m. 21. 
 
 3 The salary of a puisne could not have been very attractive to a barrister 
 in good practice, for it was still only 40 marks a year : 
 
 " l6th Oct. 19 Richard II. To William Thirnyng, one of the Justices of 
 the Common Bench, receiving yearly 40 marks for his fee in the ofHce afore- 
 said. In money paid to him by the hands of William Vaux, in dibdiarge 
 of 20 marks paid to him for this his fee. By writ, &c., ^13 6j. 3</." - 
 Devon's Issue Rolls, 262. 
 
 4 Pat. 19. Ric. II. p. I. m. i.
 
 n8 REIGN OF RICHARD II. [1399. 
 
 There are many of his decisions to be found in the 
 YEAR-BOOKS, but they are all respecting aid-prayers, 
 essoins, and other such subjects, which have long been 
 obsolete ; and I must confine myself to the part he bore 
 in an historical transaction which must ever be in- 
 teresting to Englishmen. 
 
 While we honor Lord Somers and the patriots who 
 took the most active part in the revolution of 1688, by 
 which a King was cashiered, hereditary right was disre- 
 garded, and a new dynasty was placed on the throne, we 
 are apt to consider the Kings of the house of Lancaster 
 as usurpers, and those who sided with them as rebels. 
 Yet there is great difficulty in justifying the deposition 
 of James II., and condemning the deposition of Richard 
 II. The latter sovereign, during a reign of above twenty 
 years, had proved himself utterly unfit to govern the 
 nation, and, after repeated attempts to control him, and 
 promises on his part to submit to constitutional advice, 
 he was still 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 grandfather, was now 
 almost unanimously resolved to submit no longer to his 
 rule. 
 
 I therefore cannot blame Chief Justice Thirnynge for 
 attempting to rescue the country from the state of con- 
 fusion into which it had fallen, and to restore regular 
 government under a new sovereign, who, although he 
 was not next in succession according to the rules of 
 hereditary descent, was of the blood royal, who was by 
 birth the nearest to the throne of those who could be 
 placed upon it in such an exigency, 1 who, by his vigor 
 and his prudence, had shown capacity to govern, and 
 to whom all classes of the community looked as their 
 deliverer. Thirnynge neither gained nor expected to 
 gain any personal advantage from the change, and he 
 does not appear to have been actuated by any improper 
 motive. 
 
 Henry of Bolingbroke being, soon after his landing at 
 
 1 The Earl of March, the legitimate heir after Richard II., -vas then a 
 boy only seven years old.
 
 J399-] WILLTA:,r THIRNYNGE. 119 
 
 Ravenspurg, de facto master of the kingdom, writs were 
 issued in Richard's name for a new parliament to meet 
 at Westminster on the 3Oth of September, when it was 
 planned that there should be a formal transfer of the 
 crown. Thirnynge certainly lent himself to this design, 
 and was the principal agent in carrying it into effect. 
 On the day before parliament was to assemble, he went 
 with several other commissioners to the Tower of Lon- 
 don, where Richard was confined, to remind him of a 
 promise he had recently made at Bristol that he would 
 abdicate, and to obtain from him a formal renunciation 
 of his rights. According to the account then published 
 (which must be regarded with some suspicion), Richard 
 spontaneously and cheerfully signed a paper, whereby 
 he absolved all his subjects from their allegiance, and 
 confessed himself to be " utterly insufficient and unuse- 
 ful for rule and government." 1 
 
 1 Sir John Hayward says, that when Thirnynge and his companions came 
 to the Tower, " the unhappy monarch was brought forth, appareled in his 
 royal robes, the diadem on his head, and the sceptre in his hand, and was 
 placed among them in a chair of state." He adds, that, after a little pause, 
 the King arose from his seat, and spoke to the following effect : 
 
 " I assure myself that some at this present, and many hereafter, will 
 account my case lamentable ; either that I have deserved this dejection, if 
 it be just ; or if it be wrongful, that I could not avoid it. Indeed I do con- 
 fess, that many times I have showed myself both less provident and less 
 painful for the benefit of the commonwealth, than I should, or might, or in- 
 tended to do hereafter ; and have in many actions more respected the satis- 
 fying of my own particular humor, than either justice to some private 
 persons, or the common good of all ; yet I did not at any time either omit 
 duty or commit grievance, upon natural dullness or set malice ; but partly 
 by abuse of corrupt counselors, partly by error of my youthful judgment. 
 And now the remembrance of these oversights is so unpleasant to no man 
 as to myself ; and the rather because I have no means left, either to recom- 
 pense the injuries which I have done, or to testify to the world my reformed 
 affections, which experience and stayedness of years had already corrected, 
 and would daily have framed to more perfection. But whether all the im- 
 putations wherewith I am charged be true, either in substance, or in such 
 quality as they are laid ; or whether, being true, they be so heinous as to 
 enforce these extremities ; or whether any other prince, especially in the 
 heat of youth, and in the space of 22 years, the time of my unfortunate 
 reign, doth not sometimes, either for advantage, or upon displeasure, in as 
 deep manner grieve some particular subject, I will not now examine ; it 
 helpeth not to use defense, neither booteth it to make complaint ; there is 
 no place left for the one, nor pity for the other : and therefore I refer it to 
 the judgment of God, and your less distempered considerations. I accuse 
 no man, I blame no fortune, I complain of nothing ; I have no pleasure in 
 such vain and needless comforts ; and if I listed to have stood upon terms, 
 I know I have great favorers abroad ; and some friends, I hope, at home.
 
 I2o REIGN OF RICHARD II. [1399. 
 
 Next day, when the Lords and Commons assembled 
 in Westminster Hall, the throne being vacant, and Bo- 
 lingbroke still sitting on the left side of it, occupying 
 the uppermost place on the Duke's bench, this resigna 
 tion was produced and read. But, lest doubts should 
 afterwards be started respecting its validity, on the 
 ground that it was executed under duress, Thirnynge 
 advised that articles should be exhibited, charging 
 Richard with misconduct, 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 indictment was produced, consisting of 
 no fewer than thirty-three counts, which charged the 
 unhappy Richard with many very grave and some rather 
 frivolous offenses. We do not see how this step mate- 
 rially legalized or formalized the proceeding, for he was 
 never called upon to plead, and he had no opportunity 
 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 judgments thereupon, as well 
 severally as jointly, that these crimes and defaults were 
 sufficient and notorious to depose the said King, con- 
 sidering also his own confession of his insufficiency, and 
 other things contained in the said renunciation, the said 
 states did unanimously consent that, ex abundant i, they 
 should proceeed to a deposition of the said King." 
 
 Thirnynge and several other commissioners were then 
 appointed to pronounce the deposition, and it was pro- 
 nounced accordingly. Next followed a form which we 
 should think very unnecessary and valueless, but to 
 which 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 doubtful war ; but I esteem not my dignity at so high a price, as the 
 hazard of so great valor, the spilling of so much English blood, and the 
 spoil and waste of so flourishing a realm, as thereby might have been occa- 
 sioned. Therefore, that the commonwealth may rather rise by my fall, than 
 I stand by the ruin thereof, I willingly yield to your desires ; and am here 
 come to dispossess myself of all publtc authority and title, and to make it 
 free and lawful for you to create for your king, Henry, Duke of Lancaster, 
 my cousin german, whom I know to be as worthy to take that place, as I 
 sec you willing to give it to him."
 
 I399-] WILLIAM THIRNYNGE. 121 
 
 of value or ought to be required touching the premises, 
 being severally interrogated thereupon, did constitute 
 the same persons that were before nominated commis- 
 sioners to be their procurators, jointly and separately, to 
 resign and give back to the said King Richard the 
 homage and fealty to him before made." 
 
 But, without waiting for this intimation, Bolingbroke, 
 by Thirnynge's advice, seated himself on the throne, 
 saying " In the name of Fader, Son, and Holy Ghost, I, 
 Henry of Lancaster, chalenge this rewme of Ynglonde 
 and the croun with all the members and appurtenances 
 thereto belonging." 
 
 Although Henry now took upon himself the full exer- 
 cise of royalty, and forthwith in his own name summoned 
 the parliament to meet, still, to perfect his title, Thir- 
 nynge and his brother mandatories went next day to the 
 Tower to resign to Richard the homage 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 philologist and the historian, as it affords us 
 a genuine specimen of the construction and orthography 
 of our language in the fourteenth century : 
 " The Words which William Thirnynge spake to Monsire 
 Richard, late King of England, at the Tower of Lon- 
 don, in his chamber, on Wednesday next after the 
 feast of St. Michael the Archangel, were as follow: 
 " Sire, It is wele know to zou, 1 that ther was a parle- 
 ment somon'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 
 zesterday ; 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 comen here to zowe 
 now, her procurators, and gaven hem full autorite and 
 power, and charged hem for to say the words that we 
 shall say to zowe in their name, and on their behalve ; that 
 is to wytten, the Bishop of Seint Assa for ersbishoppes and 
 bishoppes, the Abbot of Glastenbury for abbots and 
 priours, and all other men of holy chirche, seculers and 
 rewelers, the Earle of Gloucestre for dukes and erles, the 
 
 1 It is curious that the letter z then in England, as long afterwards in 
 Scotland, stood for the sound now denoted by_j'.
 
 122 REIGN OF RICHARD II. [1399. 
 
 Lord of Berkeley for barons and banerettes, Sir Thomas 
 Irpyngham, chamberleyn, 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 words, and the doing that we 
 shall say to zowe, is not onlych our wordes 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 Moneday, in the 
 fest of Seint Michel the Archaungel, ryght here in this 
 chamber, and in what presence ze renounced and cessed 
 of the state of kynge and of lordeship, and of all the 
 dignite and wyrship that longed thereto, and assoiled all 
 zour leiges of her leigance and obeisance that longed to 
 zowe uppe the fourme that is contened in the same re- 
 nunciation and cession, which ze redde zour self by zour 
 mouth, and affermed it by zour othe, and by zour owne 
 writing. Upon which ze made and ordeined your pro- 
 curators the Ersbishop of Zork and the Bishop of Here- 
 ford for to notifie and declare in zour name thes renun- 
 ciation and cession at Westmynstre to all the states, and 
 all the people that was there gadyr'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 fullich agreed by all the states 
 and people aforesaid. And over this, sire, at the in- 
 stance of all thes states and people, there were certain 
 articles of defautes in zour governance zedde there, and 
 tho wele herd and pleinelich understouden to all the 
 states aforesaid, hem thoght hem so trewe, and so 
 notorie, and knowen, that by tho causes and by no other, 
 as thei sayd, and havyng consideration to zour own 
 wordes 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
 
 1 399-] WILLIAM THIRNYNGE. 123 
 
 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 gyffen us, and in her name zelde zow 
 uppe for all the states and people forsayd, homage, leige, 
 and feaute, and all leigeance, 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 seyd, that he loked not ther after, but 
 he seyd, 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, 1 Thirnynge gave an account 
 of the manner in which he had executed his duty in sur- 
 rendering the allegiance of the nation to the discrowned 
 King ; and, then the oaths being taken to Henry IV., the 
 march of the government proceeded as if the heir appa- 
 rent had been proclaimed on the demise of his father. 
 
 Thirnynge received a new patent as Chief Justice of 
 the Common Pleas, and continued to fill this office dur- 
 ing the whole of this reign, without any increase to his 
 dignity, but with ever-growing 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 
 Bench. 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. 
 
 1 Afterwards the contrivance resorted to when a meeting of the states was 
 wanted and could not be summoned by the King, whose authority was to be 
 recognized, was to call the meeting a CONVENTION and then, a King being 
 put on the throne, to turn it into a Parliament, by an act passed by his au 
 thority. and that of the two Houses ; as in 1660 and i68q.
 
 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. 
 
 Thirnynge, 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, 1 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. 
 Had 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 Thirnynges 
 in any part of England ; and we have an instance of a 
 name being utterly 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. 2 
 
 The great contemporary Judge who gave lustre to the 
 reign of Henry IV., was SIR WILLIAM GASCOIGNE 3 fa- 
 miliar to us from the anecdote of his having committed 
 the Prince of Wales to prison, and from being a conspic- 
 
 ! Pat. I Hen. v. p. i. m. 36. 
 
 * Of course I do not refer to names taken from trades, such as Smith, nor 
 to patronymics, such as Johnson, which may have been assumed and borne 
 by difterent families, wholly unconnected with blood. 
 
 3 I have preferred the most modern spelling of this name, but it is found 
 spelt in more than twenty other different manners Gaskin, Gauscin, Gas- 
 coynge, Gascoigne, Gascoyn, Gascun, Gasken, Gaskyn, Gaskun, Gaston, Gas- 
 tone, Gastoyn, Gastoynge, Gasquin, Gasquyne, Gawsken, Vascon, Guascoyn, 
 Gaskoigne, and De Gasquone. For Christian name, " William" was the 
 great patronymic in the family, perhaps in compliment to the Conqueror ; 
 and in their pedigree are counted 16 Williams lineally succeeding each other 
 seven before, and eight after, the Chief Justice,
 
 1398.] WILLIAM GASCOIGNE. 125 
 
 uous character in one of the most popular of the dramas 
 of Shakspeare. 
 
 He was born about the middle of the reign of Edward 
 III., at Gawthorp, in the county of York, where his fam- 
 ily of Norman extraction had been seated for sever- 
 al centuries. Instead of being distinguished, like his an- 
 cestors, for military prowess, his ambition was to be a 
 profound lawyer and a great judge. While yet a boy, he 
 was sent to the University of Cambridge, where he was 
 initiated in grammar and philosophy ; and, after a few 
 years' residence there, he was transferred to the Inns of 
 Court. Two of these (although their written records do 
 not extend so far back) contend for the honor of having 
 had him as a member. The Middle Temple men assert 
 that, according to certain traditions, he belonged to 
 them ; while the Gray's Inn men rely upon the fact that 
 his arms are to be found in a window in their hall, among 
 those of the dignitaries of their society. He certainly 
 devoted himself to the study of the common law with ex- 
 traordinary zeal and perseverance. After a seven years' 
 course, and many examinations and disputations to test 
 his proficiency, he was admitted to practice as an "utter 
 barrister." From his learning and assiduity he was soon 
 in considerable business ; and among his clients was John 
 of Gaunt, to whom he rendered valuable assistance in 
 managing the concerns of the Duchy of Lancaster. 
 
 When Henry of Bolingbroke and the Duke of Norfolk, 
 being about to engage in single combat in the lists of 
 Coventry, were banished from the kingdom, Richard II. 
 gave each of them power to name an attorney, or agent, 
 who might claim and sue for an inheritance that should 
 fall to them in their absence. Gascoigne was named at- 
 torney for the former on the suggestion of the " time- 
 honored Lancaster," who saw himself near the end of his 
 long career, and was anxious that the best measures 
 should be taken to secure his vast possessions for his ex- 
 iled son. Richard, pretending to be very friendly to his 
 uncle and his cousin, confirmed the nomination ; and, out 
 of compliment to them, appointed Gascoigne King's 
 Serjeant, which placed him at the head of the Bar. 1 
 
 On the death of John of Gaunt, in the beginning of 
 
 1 Dugd. Chr. Ser.
 
 iz6 REIGN OF HENRY IV. [1399. 
 
 the following year, Gascoigne, as the attorney of his son, 
 the Duke of Hereford, now Duke of Lancaster, sued in 
 the Court of Wards and Liveries, that seizin might be 
 given to him of the Duchy and County Palatine of Lan- 
 caster and his other lands held of the Crown ; offering to 
 do homage, and swear allegiance, in the name of the ab- 
 sent heir ; but Richard, being again in the hands of 
 worthless favorites who wished to divide these spoils 
 among themselves, declared a resolution to retain them 
 in his own hands, at least till the ten years had expired 
 for which the sentence of banishment had been pro- 
 nounced. Gascoigne presented a respectful memorial, 
 reminding the King how his appointment as attorney for 
 Hereford had been confirmed under the broad seal ; and 
 prevailed on the Duke of York to remonstrate, in a speech 
 of which the following is probably a pretty accurate re- 
 port : 
 
 " Take Hereford's rights away, and take from time 
 His charters, and his customary rights. 
 
 how art thou a king, 
 
 But by fair sequence and succession ? 
 
 Now, afore God (God forbid, I say true !) 
 
 If you do wrongfully seize Hereford's rights, 
 
 Call in the letters patent that he hath 
 
 By his attornies-general to sue 
 
 His liver}', and deny his ofTer'd homage, 
 
 You pluck a thousand dangers on your head, 
 
 You lose a thousand well-disposed hearts, 
 
 And prick my tender patience 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." 1 
 
 Accordingly, a supersedeas was passed under the Great 
 Seal, revoking Gascoigne's authority to sue as attorney 
 for the banished Duke ; pnd the whole of his property, 
 real and personal, was taken possession of as forfeited to 
 the Crown.* 
 
 1 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 which sentence of deposition was 
 pronounced against him. "Art. 12. After the said King had graciously 
 granted his letters patent to the Lord Henry, now Duke of Lancaster, that 
 in his absence, while he was banished, his general attornics might prosecute 
 for livery to him, to be made of all manner of inheritance or succession
 
 i 4 oo.J WILLIAM GASCOIGNE. 177 
 
 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 
 him, 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. 1 
 
 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 we see him despise the frown of power, our sym- 
 
 belonging to him, and that 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 incurring the crime of perjury." I St. 
 Tr. 143. 
 
 1 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, 
 chiefly on 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 smothering him between two feather-beds at Calais, was taken by Sir 
 Walter Clopton, who had been Chief Justice of the King's Bench, in the 
 reign of Richard II., and that the same Sir Walter Clopton was summoned 
 to parliament 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 Henry s reign. 
 
 * See references to them in Gascoigne's Year-Book. part vi., reign of Hen. 
 IV. and Life in the Biographia Britannica.
 
 128 REIGN OF HENRY IV. [1405. 
 
 pathies are as warmly excited as by the contemplation 
 of a Holt or a Camden. 
 
 The first recorded instance of an independent 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 insurrection, planned 
 by Scrope the Archbishop of York, and Thomas Mow- 
 bray, son of the banished Duke of Norfolk who had died 
 abroad. 1 The King, having made these two rebels 
 prisoners, directed Gascoigne, as Chief Justice of Eng- 
 land, 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, " Much am I beholden to your High- 
 ness, and all your lawful commands I am bound by my 
 allegiance to obey ; but over the life of the prelate I 
 have not, and your Highness cannot give me, any juris- 
 diction. For the other prisoner, he is a peer of the 
 realm, and has a right to be tried by his peers." A 
 more obsequious agent was found in Sir William Ful- 
 thorpe, a worthless Puisne Judge, who, in the hope of 
 seeing Gascoigne disgraced, and of succeeding to the 
 offke of Chief Justice, having placed himself on a high 
 throne in the Archbishop's palace, called both the pris- 
 oners before him, and, without indictment, or form of 
 trial, condemned them both to be beheaded. The sen- 
 tence was immediately carried into execution.* When 
 the Parliament was afterwards called upon to ratify this 
 proceeding, the Lords 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 
 
 1 It is a curious fact that the military functions of the Grand Justiciar, 
 although no > longer belonging to the Chief Justice of the King's Bench, 
 virtute ojficii, were sometimes specially assigned to him. Thus, in the re- 
 bellion of the Percys, two years before, Chief Justice Gascoigne 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 
 soever." Rym. Feed. vol. viii. 319. 
 
 * Rymer's Feed. vol. viii. 319. 
 
 * A leprous disease, which soon after attacked the King, was supposed to 
 be a visitation of Heaven 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. ii. 370.
 
 i 4 io.] WILLIAM GASCOIGNE. 129 
 
 in his hope of promotion, and that the virtuous Chief 
 Justice continued to hold his office with increased repu- 
 tation. 1 
 
 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 
 Northumberland ; 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. 
 
 His chief anxiety now arose from the irregularities of 
 his son, the Prince of Wales, who, having distinguished 
 himself by military skill and bravery in the early part of 
 the reign, had subsequently abandoned himself to dissi- 
 pation, and had consorted not only with buffoons, but 
 with persons accustomed to minister to their profligate 
 expenses by forced contributions from travelers on the 
 highways. 
 
 These excesses led to an event which drew great 
 applause upon the Prince himself, on the King, and still 
 more on Lord Chief Justice Gascoigne. But I must be- 
 gin by showing that this is not a poetical fiction. For- 
 merly, every thing recorded by historians was believed ; 
 now, every thing is denied or doubted ; and the fact of 
 the commitment of the Prince of Wales, afterwards 
 Henry V., to the King's Bench prison, long considered 
 as authentic as his victory at Agincourt, has lately been 
 referred to the same class of narrative as the landing of 
 King Brute after the siege of Troy, or the exploits of 
 King Arthur and the knights 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 Gascoigne's death. The ob- 
 jection would have been very strong 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 private 
 
 1 Rot. Parl. iii. 606, viii. 605 ; Wals. 373 ; Hall, ii. 310. 
 
 * Rymer's Feed. vol. viii. 530. 
 
 * See Tyler's Life of Henry V., vol. i. c. 16.
 
 130 REIGN OF HENRY IV. [1412 
 
 life, which can be interesting to any class of readers. 
 Even in that case, a little consideration should be had 
 of the probable unwillingness to proclaim to all mankind 
 anecdotes discreditable to the heir apparent ; and cer- 
 tainly several respecting George IV. when Prince of 
 Wales, which have not as yet appeared in print, have 
 been circulated in society, and may hereafter be related 
 by grave historians. But during the fifteenth century, 
 although, from the Close Roll, the Pell Roll, and the 
 Parliament Roll, we have minute information of the ap- 
 pointment of judges, the assembling and prorogation of 
 parliaments, and other such matters as were considered 
 " of record," many interesting events, the universal 
 subjects of conversation when they occurred, long rested 
 on tradition, and were orally transmitted by one 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. We 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 narrates the transaction 
 in his work entitled " THE GOVERNOR," dedicated to 
 King Henry VIII., 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-
 
 i 4 i2.] WILLIAM GASCOIGNE. 131 
 
 censed by lyghte persones about him, in furious rage 
 came hastly to the barre where his seruente strode as a 
 prisoner, and commaunded him to be vngyued and set at 
 libertie : whereat all men were abashed, reserved the 
 chief Justice, who humbly exorted the prince to be con- 
 tented, that his seruaunt mought be ordred, accordynge 
 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 moughte, 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 inflamed, endeuored hym selfe 
 to take away his seruant. The iuge considering the 
 perillous example and inconuenience that mought there- 
 by ensue, with avalyant spirite 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 maiestie of the kynges place of iuge- 
 ment, and with an assured and bolde countenaunce, had 
 to the prince these wordes followyng : 
 
 " ' Syr, remembre yourselfe, I kepe here the place of 
 the kyng your soueraine lorde and father, to whom ye 
 owe double obedience : wherfore eftsoones in his name, 
 I charge you desyte of your wylfulness and vnlaufull en- 
 terprise, & from hensforth giue good example to thoser 
 whyche hereafter shall be your propre subjectes. And 
 nowe, for yourcontempte 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 wordes 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 
 affaire. Whereat he awhyles studyenge, after as a man 
 all rauyshed with gladnes, holdynge his eien and handes
 
 132 REIGN OF HENRY IV. [1414. 
 
 vp towards heuen, abraided, saying with a loud voice, ' O 
 mercifull God, howe moche am I, aboue all other men, 
 bounde to your infinite goodness, specially for that ye 
 haue gyuen me a iudge, who feareth nat to minister 
 iustice, and also a sonne, who can suffre semblably ; 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 Bosworth. 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 prisone, but also of his father put out 
 of the privie council and banished the court." 1 
 
 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, who, sticking to the YEAR BOOKS, 
 probably had never read either Elyot or Hall, and who 
 knew nothing of Gascoigne except by the sure tradi- 
 tions of Westminster Hall. Crompton, an accurate 
 juridical writer, who then published a book entitled 
 " Authentic et Jurisdiction des Courts," in reporting a 
 decision of the Court of King's Bench, says: 
 
 " Whidden cites a case in the time of Gascoigne, Chief 
 Justice of England, who committed the Prince to prison 
 because he would have taken a prisoner from the bar of 
 the King's Bench ; and he, very submissively obeying 
 him, went thither, according to order : at which the 
 King was highly rejoiced in that he had a judge 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 of his predecessor." 
 
 The drama making rapid progress, and historical plays 
 
 1 4th ed. p. 4b. 
 
 * 4th ed. 1594. p. 79. " Whidden vouche un case en temps Gascoigne 
 Chief Justice D'Englitierr, que commit le Prince (que voile aver pris un 
 prisoner del barre in Banco Regis) al prison ; que luy obey humblement, et
 
 1412.] WILLIAM GASCOIGNE. 133 
 
 coming into fashion, there was soon after produced a 
 very popular piece, with the title of " Henry the Fyfte, 
 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. The author follows 
 Hall in supposing that a blow had actually been inflicted, 
 which I make no doubt was an exaggeration. Of one 
 of the representations of this play we have a very 
 amusing account in a book entitled " TARLETON's 
 JESTS," published in the reign of James I. The famous 
 comedian of that name, who died in 1592, had been long 
 the delight of the public in the part of the " Clown, "- 
 disregarding the precept to " speak no more than was 
 set down for him." But, though this was his forte, he 
 could, on a pinch, take a graver character, and personate 
 a Ghost or a Judge. It so happened that when " Henry 
 the Fyfte" had drawn a crowded house, it was dis- 
 covered that Lord Chief Justice Gascoigne had got so 
 excessively drunk that he could not take his place upon 
 the bench, and Tarleton agreed to " sit for him," still 
 retaining his own part of the Crown, who, luckily, was 
 not to appear in the presence of his lordship. The 
 author, after intimating the difficulty into which the 
 company had been thrown, and the expedient resorted 
 to, thus proceeds : 
 
 " In this play the judge on the bench was to receive a 
 blow of Prince Henry, who was represented by one Knoll, 
 another droll comedian of those times ; and, when it was 
 to be done, he struck the Chief Justice Tarlton such a 
 swinging box on the ear as almost felled him to 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 intruding interrogatories of their own in the 
 midst of their acting, he very 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 grandement rejoice in ceo 
 quil avoit Justice que osast minister justice a son fits le Prince et que il 
 avoit Fits que luy obey."
 
 i 3 4 REIGN OF HENRY IV. [1412. 
 
 ' hadst thou been here thou hadst seen Prince Henry hit 
 the Judge a terrible box on the ear.' ' What ! strike a 
 Judge !' quoth Tarlton. ' Nothing less/ said t'other. 
 ' Then,' replied he, ' it muit be terrible to the Judge, since 
 the very report of it so terrifies me, that methinks the 
 place remains so fresh still on my cheek that it burns 
 again.' This, it seems, raised a greater acclamation in 
 the house than there was before ; and this was one ex- 
 ample of the extempore wit or humor for which Tarlton 
 was so much admired and remembered many years after 
 his death." 
 
 The case which I advocate is, I think, materially 
 strengthened by the evidence of WILLIAM SHAKSPEARE, 
 who, in his historical plays, although very careless about 
 dates, is scrupulously accurate about facts, and never in- 
 troduces any which do not rest upon what he considered 
 good authority ; inasmuch that our notions of the Plan- 
 tagenet reigns are drawn from him rather than from Hol- 
 linshed, Rapin, or Hume. On the faith of tradition, or 
 of books which he had read, he evidently had in the 
 truth of the story a strong belief, which is constantly 
 breaking out. Thus, when the Chief Justice is first seen 
 at a distance, FalstafFs page says " Sir, here comes the 
 nobleman that committed the Prince for striking him 
 about Bardolph." 1 
 
 Again, on news arriving of the death of Henry IV., \ve 
 have the following diologue : 
 
 Ch. Justice. " I would his majesty had called me with him ; 
 
 The service that I truly did his life 
 
 Hath left me open to all injuries." 
 
 Warwick. " Indeed, I think the young King loves you not." 
 Ch. Justice. " I know he doth not ; and do arm myself 
 
 To welcome the condition of the time ; 
 
 Which cannot look more hideously upon me 
 
 Than I have drawn it in my fantasy. 
 
 Sweet princes, what I did I did in honor, 
 
 Led by the impartial conduct of my soul ; 
 
 And never shall you see that I will beg 
 
 A ragged and forstall'd remission. 
 
 If true and upright innocency fail me, 
 
 I'll to the King my master that is dead, 
 
 And tell him who hath sent me after him." 
 
 1 Second Part of Henry IV. act i. sc, 2.
 
 i 4 i2.J WILLIAM GASCOIGNE. 135 
 
 When the Prince enters, as Henry V., he thus addresses 
 the Chief Justice : 
 
 " You are, I think, assur'd I love you not." 
 C&. justice. " I am assur'd, if I be measur'd rightly, 
 
 Your majesty hath no just cause to hate me." 
 King. " No ! 
 
 How might a prince of my great hopes forget 
 
 So great indignities you laid upon me ? 
 
 What ! rate, rebuke, and roughly send to prison 
 
 The immediate heir of England ! Was this easy ? 
 
 May this be wash'd in Lethe, and forgotten ?" 
 Ch, Justice. " I then did use the person of your father ; 
 
 The image of his power lay then in me : 
 
 And, as you are a king, spake in your state, j 
 
 What I have done that misbecame my place, 
 
 My person, or my liege's sovereignty." 
 King. " You are right, Justice, and you weigh this well 
 
 Therefore, still bear the balance and the sword : 
 
 And I do wish your honors may increase. 
 
 Till you do live to see a son of mine 
 
 Offend you, and obey you as I did." 1 
 
 It was imagined that the authority of Shakspeare on 
 this question was demolished, and a great triumph was 
 claimed over him by the assertion that Sir William Gas- 
 coigne at this time could not feel any apprehension of 
 the earthly consequences of any deed he had done in the 
 body, as he was sleeping in his grave, having died some 
 months before his patron, Henry IV. ; but I shall here- 
 after prove to demonstration that Sir William Gascoigne 
 survived Henry IV. several years, and actually rilled the 
 office of Chief Justice of the King's Bench under Henry 
 V." 
 
 In the same reckless spirit of questioning what has 
 long been taken for simple truth, several who were not 
 
 1 Second Part of Henry IV. act v. sc. 2. 
 
 8 Henry V., having become King by his father's death on the 2Oth of 
 March, 1413, was crowned on the gth of April following ; and all historians, 
 chroniclers, and biograthers, agree that the following day, when his council 
 was sworn in (for still the Kings of England were not considered as fully eu- 
 titled to rule before their coronation), he made a speech in which he re- 
 nounced his former lewd companions, he forgave his father's councillors who 
 had offended him by trying to correct his faults, and he reappointed such of 
 the judges as had best done their duty, and were most in his father's con- 
 fidence. See Wals. 382. ; Otturb, 273. ; Elm. 17. Trussell's Continuation 
 of Daniel, introducing Gascoigne's name and makes Henry, after relating 
 the commitment, thus conclude : " For which act of justice I shall ever 
 hold him worthy of the place and my favor, and wish all my judges to have 
 the like undaunted courage to punish offenders of whatever rank." Cited in 
 Fuller's Worthies, 505.
 
 136 REIGN OF HENRY IV. [1410 
 
 bold enough to deny that Henry V., when Prince of 
 Wales, was committed to prison, have denied the honor 
 of the act to Sir William Gascoigne, and have started 
 other condidates for it. The " Devonians," who think 
 that nothing great or good can have been done in Eng- 
 land unless by a " worthy of Devon," taking advantage 
 of the language of chroniclers who, trusting to the noto- 
 riety of the story, mentioned the judge only under the 
 designation of the " Chief Justice," claim the commit- 
 ment of the Prince of Wales for two of their country- 
 men, Chief Justice Hankford and Chief Justice Hody. 1 
 When I hear of high Devonian pretensions, I confess I 
 am reminded of the celebrated saying of Sergeant Davy, 
 that " the oftener he went into the West, he better under- 
 stood how the WISE MEN came from the East." In this 
 instance it is quite certain that the pretension proceeds 
 on gross ignorance and carelessness, for Sir William 
 Hankford was not appointed Chief Justice of the King's 
 Bench till some time after Henry V. had actually been 
 on the throne, and (better still) Sir John Hody was not 
 appointed Chief Justice of the King's Bench till many 
 years after Henry V. had been in his grave, viz. : the 
 eighteenth year of the reign of his son and successor, 
 Henry VI. 9 
 
 The same impossibility does not stand in the way of a 
 claim set up for Sir John Markham by his descendants, 
 on the strength of some supposed family papers which 
 had not been communicated to the public. He was a 
 Chief Justice from the 2Oth of Richard II. to Qth Henry 
 IV. ; but then he was Chief Justice of the Common 
 Pleas, and, although the commitment is sometimes said 
 to have been to the Fleet the prison of that Court it 
 is quite clear that no arraignment of Bardolph, or any 
 other associate of the Prince, could have taken place in 
 the Court of Common Pleas, which has cognizance only 
 of civil actions. 8 
 
 I think I am now fully entitled to ask for a verdict in 
 favor of my client, Sir William Gascoigne. For the 
 
 1 Prince's Worthies of Devon ; Risdon's Worthies of Devon. 
 
 * Dug. Chron. Ser. 
 
 8 Baker's Chronicle says, that the commitment was to the Fleet, but at 
 the same time says that the arraignment of the 7'rince's servant, which gave 
 rise to it, was at the King's Bench bar.
 
 i4i 2.] WILLIAM GASCOIGNE. 137 
 
 honor of the profession to which I am proud to belong, 
 I do feel anxious to establish the fact which has been 
 taken for true by so many chroniclers, historians, moral- 
 ists, and poets. 
 
 There was here no official insolence, or strain of juris- 
 diction, for the sake of gaining popularity. Independ- 
 ently of the blow, which may be safely disbelieved, as 
 inconsistent with the generous feeling by which Henry 
 was actuated in his wildest moments, he had insulted 
 the first Criminal Judge, sitting on his tribunal, and he 
 had no privilege from arrest beyond that of a peer 
 which did not extend to such an enormity. But there 
 had been no precedent, in the history of this or any other 
 European monarchy, of a Temporal Judge, with dele- 
 gated authority, for an insult offered to himself, sending 
 to jail the son of the Sovereign, who must himself 
 mount the throne on his father's death, to be detained 
 there in a solitary cell, or to associate with common 
 malefactors. We must remember that Gascoigne held 
 his office during pleasure, and that, while by this act there 
 seemed a certainty of his being dismissed, and made an 
 object of royal vengeance, on a demise of the Crown, 
 there was a great danger of his incurring the immediate 
 resentment of the reigning Sovereign, who might sup- 
 pose that the divinity which ought to hedge the blood 
 royal had been profaned. Every thing conspires to en- 
 hance the self-devotion and elevation of sentiment which 
 dictated this illustrious act of an English Judge ; and 
 the noble independence which has marked many of his 
 successors may, in no small degree, be ascribed to it : 
 
 " While dauntless Gascoigne, from the judgment-seat, 
 To justice does make princely power submit, 
 Dares tame by law him who all laws could break, 
 And to a hero raise a royal rake : 
 While- we such precedents can boast at home, 
 Keep thy Fabricius and thy Cato, Rome !" 1 
 
 Shakspeare, who, although adhering to substantial 
 facts, in dramatizing English history, never minds ana- 
 chronisms, even with respect to events that had hap- 
 pened very shortly before his own time, 4 represents the 
 commitment of the Prince of Wales by Chief Justice 
 
 1 See Biog. Britan., title " Gascoigne." 
 
 1 The play of King Henry VIII. abounds with them.
 
 138 REIGN OF HENRY IV. [1410 
 
 Gascoigne to have been before the insurrection led by 
 Archbishop Scrope in the year 1405 ; but other authori- 
 ties place it, with more probability, in the reign of 
 Henry IV., when the Prince had taken to dissolute 
 courses from want of public employment, and had been 
 dismissed from the Privy Council, making way for his 
 graver brother John. 1 
 
 We do not read of any other remarkable achievement 
 of the Chief Justice, except as a law reformer. There 
 were heavy complaints in the House of Commons 
 which have continued down to our own time that ex- 
 orbitant fees were levied upon litigants by the officers 
 of the different Courts. In consequence, Gascoigne in- 
 stituted an inquiry upon the subject, and, with the con- 
 currence of the other Judges, published a table of such 
 fees as might be legally demanded. 1 A more general 
 grievance was stated to be the multiplication of attor- 
 neys. In the reign of Edward I. there were only 140 in 
 all England, and their number now exceeded 2000. 
 This was a proof of increasing population, wealth, and 
 civilization ; but a general cry arose " that the people 
 were pilled by barrators and pettifoggers ;" and there 
 was, no doubt, a want of regulations to prevent the ad- 
 mission of improper persons into the profession, and to 
 punish those who acted discreditably. To meet these 
 evils, Chief Justice Gascoigne framed a statute, which 
 was adopted by the legislature, whereby attorneys were 
 subjected to an examination before they were admitted ; 
 and, if convicted of any fraud, " should never after be 
 received to make any suit in any Court of the king.'" 
 He likewise, with the assent of his brethren, promul- 
 gated a rule of Court that attorneys should be sworn 
 every term " to deal faithfully, and make their ransom 
 to the king's will." 
 
 1 See Hume, vol. iii. p. 86 ; Lingard, vol. iv. 319, vol. v. 2. 
 
 8 Cotton's Records, p. 409. 
 
 3 4 Hen. IV. c. 18. The preamble (no doubt drawn by Gascoigne) affords 
 a curious specimen of legislative language in those days : Item pur pleu- 
 sours damages et meschiefs quont advenuz devaunt ces heures as diverses 
 gentzdu Roialme par le grant nombredes attournees nient sachentz naprises 
 de la loye come ils soloient estre pardevant ; ordeignez est et establiz que 
 toutz les attournees soient examinaz par lez Justices," &c. 
 
 Till the stat. West. 2. c. 10., allowing attorneys to be made to prosecute 
 and defend an action, every suitor was obliged to appear in person, unless 
 by special license under the King's letters patent. 3 Bl. Com. 26.
 
 WILLIAM GASCOIGNE. 139 
 
 Besides administering justice to the parties who came 
 regularly before his tribunal by judicial process, Gas- 
 coigne followed a practice which continued in use among 
 Judges of the highest rank, down to the time of Sit 
 Matthew Hale, in the reign of Charles II., of settling 
 differences privately by arbitration, on the voluntary 
 submission of the parties. We are minutely informed 
 of the circumstances of one case thus referred to him, 
 illustrating graphically the manners of the age : 
 
 " William Lord Roos complained to the King of Sir 
 Robert Therwit, a Puisne Judge of the King's Bench, 
 for not only unjustly depriving him of certain lands in 
 the county of Lincoln, but for lying in wait with 500 
 men to seize and ill use him. Sir Robert confessed his 
 fault in using such violent means to assert his right, and 
 offered to abide by the order of two Lords of the com- 
 plainant's own kindred as to the mode of settling the 
 dispute. They enjoined Sir Robert to make a great 
 feast at Melton le Roos, the scene of the riot ; that he 
 should prepare two fat oxen, twelve sheep, two tuns of 
 Gascogny wine, with other suitable provisions, and then 
 assemble thither all such knights, esquires and yeomen 
 as had been his accomplices ; that they should confess 
 their misbehavior to the Lord Roos, crave his pardon, 
 and make him an offer of 500 marks in recompense ; that 
 the Lord Roos should refuse their money, but pardon 
 them, and partake of their dinner in token of his recon- 
 ciliation ; and that the title to the land should be settled 
 by that learned and revered Judge, SIR WILLIAM GAS- 
 COIGNE. We are not told what his award was ; but we 
 need not doubt that it did ample justice between the 
 parties." 1 
 
 Having narrated all that I find interesting in the life 
 of Lord Chief Justice Gascoigne, I have only to discuss 
 the controverted question respecting the time of his 
 death. Fuller (generally a trustworthy authority) fixes 
 it on Sunday the i/th day of December, 1412, vouch- 
 ing an inscription on the Judge's tomb; and this date 
 was long considered as irrevocably fixed, writer after 
 writer pointing out the flagrant violation of history by 
 Shakspeare, in bringing the deceased Chief Justice on 
 
 'Cotton's Records, anno 1417
 
 i 4 o REIGN OF HENRY F. [1412 
 
 the stage along with King Henry V., and recording a 
 dialogue between them. 1 
 
 But a difficulty arose from the i/th of December, 
 
 1412, having fallen not on a Sunday but on a Saturday. 
 Then came a discovery, that in the summonses for a new 
 parliament issued by Henry V. on the 22nd of March, 
 
 1413, the day after he was proclaimed King, is found one 
 to " Sir William Gascoigne, Knight, Chief Justice of our 
 Lord the King, assigned to hold pleas before our Lord 
 the King before the King himself." But as his name is 
 not mentioned in the roll of the proceedings of the 
 House of Lords, when Parliament met in the month of 
 May following, it was supposed that this summons must 
 be a mistake ; and an assertion was made, that Sir Wil- 
 liam Hankford, his successor, had previously been ap- 
 pointed Chief Justice. Some who could not believe 
 that the date 1412 was right, carried it on to 1413, when 
 the I /th December did fall on a Sunday; but still in- 
 sisted, that Gascoigne never was Chief Justice of the 
 King's Bench under Henry V., and that, being displaced 
 on the demise of Henry IV., the story of his having 
 committed the Prince of Wales to prison could receive 
 no confirmation from the dialogue at his supposed re- 
 appointment. 
 
 The matter, however, has been placed beyond all 
 doubt by the discovery of the Chief Justice's last will 
 and testament, in the registry of the Ecclesiastical 
 Court at York. It bears date, according to the mode 
 then in fashion of computing time, which Puseyites wish 
 to revive, on " Friday after St. Lucy's Day, A. D. 1419." 
 St. Lucy's Day that year fell on Wednesday, I3th of 
 December ; and, consequently, the will was made on 
 Friday, the I5th of December. Probate was granted on 
 the 231! of the same month. Consequently, the Chief 
 Justice must have died on the i/th of December, 1419, 
 which was that year again on a Sunday. The testator 
 says in his will, that he was " weake in bodie, though 
 of sound and disposing minde and understanding." 1 
 
 1 See Gentleman's Magazine, vol. xi. p. 516. 
 
 * He does not designate himself as " late Chief Justice," but the identity 
 of the testator with the Chief Justice is placed beyond all doubt by his men- 
 tien of different members of his family, and particularly his two wives , the
 
 I 4 i9-] 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." 1 
 
 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." 8 
 
 He was buried in the parish church of Harwood, in 
 Yorkshire, near Gawthorp. 
 
 A tomb was afterwards erected there to his memory, 
 which 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. 8 A brass plate, affixed to it, bears an inscription 
 of which the following words are still legible : 
 
 " Orate pro Gulielmo Gascoyne et Elizabethe et Johannse uxoribus ejus 
 Hie jacet Gulielmus Gascoyne nuper Capitalis Justiciar. de Banco Henrici 
 nuper Regis Angl. 
 
 Obiit Die Dominica 17 Die. A. D. ." 4 
 
 latter of whom was then alive, and in her will, subsequenetly made and pre- 
 served in the same register, styles herself " widow of William Gascoigne, 
 late Chief Justice." See Tyler's Life of Henry V. vol. i. 379. 
 
 1 See Tyler's Life of Henry V. vol. i. 379. 
 
 3 The Pell Roll, I4th March, 1420, within a half year of his death, states 
 the repayment to his executors of a sum which he had advanced without 
 security to the Royal Exchequer. 
 
 3 There is a good portrait of him from the monument, in the Gentlemen's 
 Magazine, vol. xli. p. 566. 
 
 4 The Gentlemen's Magazine, vol. xli. p. 623, professes to give this inscrip 
 tion, but interpolates, after " A. D.", " 1412, 14 Hen. Quatre."
 
 i 4 2 REIGN OF HENRY VI. [1419. 
 
 The rest of the brass plate is wanting, and is said to 
 have been torn off by one of Cromwell's soldiers during 
 the civil wars. 
 
 His wife Elizabeth was the daughter and sole heiress 
 of Sir Alexander Mowbray, of 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 English Judge, and reluctant to bid him 
 adieu for others of much less celebrity and much less 
 virtue.
 
 CHAPTER IV. 
 
 CHIEF JUSTICES TILL TH4E 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 Amerie in 
 that county, whatever may be the share of glory which 
 he confers upon it. Till the termination of his career, all 
 that I can relate respecting him on authentic testimony 
 is, that he was called serjeant in the I4th of Richard II., 
 was made a Puisne Judge of the Common Pleas in 2ist 
 of Richard II., was promoted to be Chief Justice of the 
 King's Bench in the ist of Henry V., 1 and was reap- 
 pointed to that office in 1st of Henry VII. 3 
 
 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 
 
 1 There is some doubt as to the exact date of this promotion. It must 
 have been subsequent to 22d March, 1413, when Henry V. issued writs for 
 his first parliament to which Sir William Gascoigne was summoned ; and 
 prior to ist December, 1413, for on that day writs were issued for a new 
 parliament to meet on the 2gth of January following, and to this Sir 
 V illiam Hankford is summoned as Chief Justice. 
 
 * Dugcl. Chr. Ser.
 
 144 REIGN OF HENRY VI. [1422 
 
 felo de se always followed such an act, and the body of 
 the supposed delinquent was buried in a cross road with 
 a stake thrust through it. He at last resorted to this 
 novel expedient, by which he hoped not only that the 
 forfeiture of his goods would be saved, but that his family 
 would escape the anguish and shame arising from the be- 
 lief that he had fallen by his own hand. Several of his 
 deer having been stolen, he gave strict orders to his 
 keeper to shoot any person met 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 
 th6 spot, " This story" (says Prince, the author of WOR- 
 THIES OF DEVON 1 ) " is authenticated by several writers, 
 and the constant traditions of the neighborhood; and I, 
 myself, have been shown the rotten stump of an oak 
 under which he is said to have fallen, and it is called 
 HANKFORD'S OAK to this day." 
 
 His monument stands in Amerie church, with the fol- 
 lowing epitaph inscribed upon it : 
 
 '' Hie jacet Will. Hankford, Miles, quondam Capitalis 
 Justiciarius Domini R. de Banco, qui obiit duodecimo 
 Die Decembris Anno Domin. 1422." 
 
 His figure is portrayed kneeling; and out of his 
 mouth, in a label, these two sentences proceed : 
 
 1. " Miserere mei Deus, secundum magnam misericordiam tuam !" 
 
 2. " Beati qui constodiunt judicium et faciunt justitiam 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." a 
 
 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 office of 
 Chief Justice of the King's Bench continued to be held 
 by very obscure men, Sir William Cheyne, 1 Sir John 
 Ivyn, 4 and Sir John Hody,* who seem decently to have 
 
 1 Page 362. * Fuller, i. 281, 
 
 * 3ist January, 1424-5. * 2Oth January, 1459-40. 
 
 5 I3th April, 1440. k would seem in his time the judge's salaries had 
 been thought to require an increase, as we meet with this entry : " Johannes
 
 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 inquiring into their birth, their education, their 
 marriages, and their places of sepulture. 
 
 Next comes one of the most illustrious of Chief Jus- 
 tices, Sir John of Fortescue, 1 for ever to be had in re- 
 membrance for his judicial integrity, and for his im- 
 mortal treatise DE LAUDIBVS LEGVM ANGLLE. But, 
 as he held the Great Seal of England while in exile, 
 although he never filled the " marble chair " in West- 
 minster Hall, I have already sounded his praise to the 
 best of my ability in the LIVES OF THE CHANCELLORS."* 
 
 He held the office of Chief Justice above twenty 
 years with universal applause. During the latter half 
 of this period the War of the Roses was raging ; and he, 
 being a devoted 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 JOHN 
 MARKHAM, 8 of whom some particulars are known which 
 may not be uninteresting. 
 
 He was descended from an ancient family (the Mark- 
 hams of that ilk) who had been seated at Markham in 
 Nottinghamshire from time immemorial, possessing a 
 small estate which had remained without addition or 
 diminution for many generations. John, born in the 
 reign 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 industry, joined to great 
 sharpness, he soon got into extensive practice, and began 
 
 Hody Capitalis Justic. habet CXL marcas annuas sibi concessas, ad statum 
 suum decentius manutenendum." Pat. 18 Henry VI., p, 3. m. 5. 
 
 1 25th Jan. 1442-3. * Vol. i. ch. xxii. * I3th May, 1462. 
 
 I. 1 X
 
 146 REIGN OF HENRY VI. [1442 
 
 to realize the prospects which had dazzled him when 
 a boy. In the year 1444 he was placed at the head of 
 his profession by being made King's Serjeant, and soon 
 after accepted the office of a Puisne Judge of the Court 
 of King's Bench, probably hoping ere long to reach the 
 dignity of a chiefship. Such hopes, however, are 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. He took, 
 very honestly, a different view of the controversy from 
 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 generation, 
 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 publish 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 heir of the crown of Eng- 
 land was Richard, Duke of York, descended from the 
 second son of Edward III. His sentiments were well 
 known to the Yorkist leaders, and they availed 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 
 Richard, 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, therefore, gave 
 high satisfaction, and was considered a good omen of 
 the new regime.
 
 1469.] JOHN MARKHAM. 147 
 
 He held the office above seven years, with unabated 
 credit. Not only was his hand free from bribes, but so 
 was his mind from every improper bias. An old author 
 relates the following anecdote, to illustrate his purity 
 and his good humor: 
 
 " A lady would traverse 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 him 
 with sumptuous entertainment. Dinner being done, 
 and the cause being called, the Judge clearly gave it 
 against her. And when, in passion, she vowed never to 
 invite Judge again, 'Nay, wife,' said he, 'vow never to 
 invite a 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. a 
 
 At last, though he cherished his notions of hereditary 
 right with unabating constancy, he forfeited his office 
 because he would not prostitute it to the purpose of the 
 King and the Ministers in wreaking their vengeance on 
 the head of a political opponent. Sir Thomas Cooke, 
 who inclined to the Lancastrians, though he had 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 Markham presided, and the Government was 
 eager for a conviction. But all that could be proved 
 against the prisoner was, that he entered into a treaty 
 to lend, on good security, a sum of 1000 marks, for the 
 use of Margaret, the Queen of the dethroned Henry VI. 
 The security was not satisfactory, and the money was 
 
 1 Fuller, ii. 248. 
 
 1 Fuller, in praising Fortescue and Markham, says, " These I may call 
 two Chief Justices of the Chief Justices, for their signal integrity ; for 
 though the one of them favored the HOUSE OF LANCASTER, and the other 
 of YORK, in the titles to the crown, both of them favored the HOUSE OF 
 JUSTICE in matters betwixt party and parfy."
 
 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 a puisne, had wished to trip up the heels of 
 his chief, and had circulated a statement, to reach the 
 King's ear, that Sir Thomas Cooke's offense was a clear 
 overt act of high treason. 1 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, 
 
 1 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 ol them took jrlace before him. See i St. Tr. 894 ; I Hale's 
 Pleas of Crown, 115.
 
 1450.] THOMAS BILLING. 149 
 
 and the law, did judge corruptly, maliciously, and affec- 
 tionately." 1 
 
 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. 5 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 succession 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 
 
 1 1 St. Tr. 894. 
 
 s Fuller says that he was born in Northamptonshire, and held lands at 
 Ashwell in that county ; but is silert both as to his ancestors and descend- 
 ants, and is evidently ashamed of introducing such a charactei among 
 Worthies."
 
 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 Fortescue, and published a treatise 
 upon the subject ; which he concluded with an exhorta- 
 tion " that all who dared, by act, writing, or speech, to 
 call in question the power of Parliament to accept the 
 resignation of Richard II., or to depose him for the 
 crimes he had committed and to call to the throne the 
 member of the royal family most worthy to fill it 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 o.f Lords, 1 Billing ap- 
 peared as counsel for Henry VI., leading the Attorney 
 and Solicitor-General ; but it was remarked that his fire 
 had slackened much, and he was very complimentary to 
 the Duke of York, who, since the battle of Northamp- 
 ton, had been virtually master of the kingdom. 
 
 We know nothing more of the proceedings of this un- 
 principled adventurer till after the fall of Duke Rich- 
 ard, when the second battle of St. Alban's had placed 
 his eldest son on the throne. Instantly Sir Thomas 
 Billing sent in his adhesion ; and such zeal did he express 
 in favor of the new dynasty, that his patent of King's 
 Serjeant was renewed, and he became principal law 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 
 
 1 Lives of Chancellors, vol. i. ch. xxii.
 
 1465- J THOMAS BILLING. 15! 
 
 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, 
 Billing was made a Puisne Justice of the Court of King's 
 Bench. He was not satisfied with this elevation, which 
 little improved his position in the profession; but he 
 hoped speedily to be on the woolsack, and he was 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 Walter 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
 
 152 REIGN OF EDWARD IV. [1470. 
 
 peaceably submitted to the ruling powers, and that 
 though he could not deny the words imputed to him, 
 they were only spoken to amuse his little boy, meaning 
 that he should succeed him as master of the Crown 
 Tavern, in Cheapside, and, like him, employ himself in 
 selling sack. 
 
 Mr. Justice Billing, however, ruled 
 
 " That upon the just construction of the Statute of 
 Treasons, which was only declaratory of the common 
 law, there was no necessity, in supporting such a charge, 
 to prove a design to take away the natural life of the 
 King; that any thing showing a disposition to touch 
 his royal state and dignity was sufficient ; and that the 
 words proved were inconsistent with that reverence for 
 the hereditary descent of the crown which was due from 
 every subject under the oath of allegiance : therefore, if 
 the jury believed the witness, about which there could 
 be no doubt, as the prisoner did not venture to deny the 
 treasonable language which he had used, they were 
 bound to find him guilty." 
 
 A verdict of guilty was returned, and the poor pub- 
 lican was accordingly hanged, drawn, and quartered. 1 
 
 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. 
 
 Accordingly, a supcrscdcas to Sir John Markham was 
 1 Baker's Chron. p. 299 ; Ilale's Pleas of the Crown, vol. i. p. 115.
 
 X47o.] THOMAS BILLING. 153 
 
 made out immediately after the trial of Rex v. Cookc, 
 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. He 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
 
 154 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 GUILTY ; 
 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 propagated 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 misprision into treason itself. 
 We need not give you the examples of it. Burdet's case 
 will never be forgot ; who, for a word spoken in haste,
 
 1470.] 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 Hale, commenting 
 in his PLEAS OF CROWN 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." 1 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. 2 
 
 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 tranquillity was looked for without a 
 battle, drove Edward IV. into exile, and replaced Henry 
 VI. on the throne, after he had languished ten years as a 
 captive in the Tower of London. 
 
 There is no authentic account of Billing's deportment 
 in this crisis, and we can only conjecture the cunning 
 means he would resort to, and the pretenses he would 
 set up, to keep his place and to escape punishment. Cer- 
 tain 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 
 
 1 Vol. i. p. 115. This sentence is repeated in the text of Blackstone 
 (Com. vol. iv. p. 80). Hume, to add to the effect of his narrative, thinks fit 
 to connect this atrocity with the murder of the Duke of Clarence, and post- 
 pones it till 1477, nearly eight years after Markham had been displaced, and 
 Billing had been appointed to succeed him. (Vol. iii. p. 261.) See I St. Tr. 
 275. Burdet had been a retainer of the Duke of Clarence, who very prob- 
 ably reproached Edward IV. with his violent death, but this event must 
 have happened long before the fatal quarrel between the two royal broth- 
 ers. 
 
 2 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 More's History of Rich- 
 ard III. ; Kennet, 498.
 
 156 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 his 
 reign, by which he assigned " his trusty and well-beloved 
 Sir John Billing, Knight, as his Chief Justice to hold 
 picas in his Court before him." 1 There can be as little 
 doubt that he was present at the parliament which was 
 summoned immediately after in Henry's name, when the 
 crown was entailed on Henry and his issue, Edward was 
 declared 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 Billing and the Earl 
 of Warwick (the king maker), who himself so often 
 changed sides, and who was now in possession of tile 
 whole authority 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' 
 en.-l when, in the spring of the following year, Edward 
 IV. landed at Ravenspurg, gained the battle of Barnet, 
 and, after the murder of Henry VI. and the Prince of 
 Wales, was again on the throne, without a rival. Billing 
 does seem to have found great difficulty in making his 
 peace. Though he was dismissed from his office, it was 
 allowed to remain vacant about a twelvemonth, during 
 which time he is supposed to have been in hiding. But 
 he had vowed that, whatever changes might take place 
 on the throne, he himself should die Chief Justice of the 
 King's Bench : and he contrived to be as good as his word. 
 
 By his own representations, or the intercession of 
 friends, or the hope of the good services he might yet 
 render in getting rid of troublesome opponents, the 
 King was induced to declare his belief that he who had 
 sat on the trials of Walker and Burdet had unwillingly 
 
 1 The teste is " apud Westmonasterium, 9 Oct. 49 Henry III." Pat. Roll, 
 m. 1 8.
 
 I473-J JOHN BILLING. 157 
 
 submitted to force during the late usurpation ; and, on 
 the 1 7th of June, 1472, a writ passed the Great Seal, by 
 which his Majesty assigned " his right trusty and well- 
 beloved Sir John Billing, Knight, as Chief Justice to hold 
 pleas before his Majesty himself." 1 
 
 For nearly nine years after, he continued in the pos- 
 session of his office, without being driven again to change 
 his principles or his party. One good deed he did, which 
 should be recorded of him in advising Edward IV. to 
 grant a pardon to an old Lancastrian, Sir John 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 LAUDIBUS should publish a new 
 treatise, to refute that which he had before composed, 
 proving the right of the House of Lancaster to the 
 throne ; and forced him to present the petition in which 
 he assures the King " that he hath so clearly disproved 
 all the arguments that have been made against his right 
 and title that now there remaineth no color or mat- 
 ter of argument to the hurt or infamy of the same right 
 or title by reason of any such writing, but the same right 
 and title stand now the more clear and open by that any 
 such writings have been made against them." 9 
 
 There are many decisions of Chief Justice Billing on 
 dry points of law to be founded in the YEAR-BOOKS, but 
 there is only one other trial of historical importance 
 mentioned in which he took any part, and it is much to 
 be feared that on this occasion he inflamed, instead of 
 soothing, the violent passions of his master, with whom 
 he had become a special favorite. 
 
 Edward IV., after repeated quarrels and reconciliations 
 with his brother, the Duke of Clarence, at last brought 
 him to trial, at the bar of the House of Lords, on a 
 charge of high treason. The Judges were summoned to 
 attend ; and Lord Chief Justice Billing was their 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 
 
 1 Pat. Roll, ii Ed. IV., p. I. m. 24 ; Dugd. Chron. Ser. 
 * Rot. Parl. vi. 26. 69.
 
 158 REIGN OF EDWARD IV. [1478. 
 
 had been in his service, that he had accused the King 
 of dealing in magic, and had cast some doubts on his 
 legitimacy, that he had induced his servants to swear 
 that they would be true to him, without any reservation 
 of their allegiance to their Sovereign, and that he had 
 surreptitiously obtained, and preserved, an attested copy 
 of an act of parliament, passed during the late usurpa- 
 tion, declaring him next heir to the crown after the male 
 issue of Henry VI. The Duke of Buckingham presided 
 as High Steward, and in that capacity ought to have laid 
 down the law to the Peers ; but, to lessen his respon-r 
 sibility, he put the question to the Judges, " Whether 
 the matters proved against the Duke of Clarence amount- 
 ed, in point of law, to high treason ?" Chief Justice 
 Billing 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. 1 
 
 Lord Chief Justice Billing enjoyed the felicitous fate 
 accorded to very few persons of any distinction in those 
 times, that he never was imprisoned that he never was 
 in exile and that he died a natural death. In the spring 
 of the year 1482, he was struck with apoplexy, and he 
 expired in a few days- -fulfilling his vow for he 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 
 which can disgrace mankind. 
 
 1 Rot. Par. vi. 193, 194 195, 174.
 
 1482.] JOHN HUSSEY. 159 
 
 Sir JOHN HUSSEY, 1 who succeeded him, was Chief 
 Justice during four reigns, ever preserving a fair char- 
 acter; for, being a mere 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. His favorite manual was the REGISTRUM 
 BREVIUM ; and Littleton's celebrated treatise on TEN- 
 URES (destined to be commented on by COKE) being 
 now completed, 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. 2 He had to prosecute a good many Lancastrians ; 
 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 there 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 long 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 
 
 1 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 Curia de recordo." Pat. n Edio. IV. p. I. m. 
 28.
 
 ioo REIGN OF RICHARD III. [1483. 
 
 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. 1 
 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, bad 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 
 
 1 " Will. Husec constit. Capitalis Justic. T. R. apud West. 7 Maii." 
 Pat. 21 Edw. IV. "Idem Will, habet CXL marcas annuas sibi concessas 
 pro statu suo decentius manutenendo. T. R. apud Westm. 12 Junii." 
 Pat. 21 Edw. IV. p. 2. m. 6. 
 
 Pat. I Ed. V. m. 2.
 
 1485.] WILLIAM HUSSEY. 161 
 
 upright judges, he caused a writ to pass the Great Seal 
 whereby " Richard III. by the grace of God King of 
 England and France, Lord of Ireland, &c., assigned his 
 right trusty and well-beloved Sir William Hussey, 
 Knight, his Chief Justice, to hold pleas in his court 
 before him." 1 
 
 The Chief Justice may be blamed for acquiescing in 
 this usurpation ; but we must remember that he had no 
 concern in bringing it about, that plausible reasons 
 had been brought forward to make out the illegitimacy 
 of the sons of Edward IV., that no danger was as yet 
 apprehended for their lives, and that Richard's claim 
 had been sanctioned by the City of London and by the 
 will of the nation. 
 
 As the new King chose to get rid of Hastings, Rivers, 
 Buckingham, and the other grandees who were obnox- 
 ious to him, by summary violence rather than judicial 
 murder, the Chief Justice was not exposed to any diffi- 
 culty in acting under his authority; and he continued 
 till after the battle of Bosworth, amidst insurrections 
 and civil war, calmly to adjust the private rights of the 
 suitors who came before him. Instead of putting on a 
 coat of mail taken from the King's armory, like Sir John 
 Fortescue, he declared that it became him to be seen by 
 the public only in the scarlet robe, lined with white 
 minever, he had received from the King's wardrobe. 
 
 Henry VII., who had a deep dislike to all whom he 
 knew or suspected to be Yorkists, was much inclined to 
 cashier Chief Justice Hussey as he had done Lord Chan- 
 cellor John Russell ; but, after a month's consideration, 
 came to the conclusion that his loyalty might be safely 
 trusted to any king de facto, and accordingly reappointed 
 him in the usual form.* The Lancastrian Sovereign had 
 no reason to repent the confidence he reposed in the 
 Yorkist Chief Justice, whose scruples were, no doubt, 
 soothed by the approaching royal marriage and the 
 promised union of the Roses. 
 
 When Parliament met, the Chief Justice was of essen- 
 
 1 26th June, Pat. I Ric. III. p. i. m. 12. 
 
 1 Henry dated his reign from 22nd of Angust, 1485, and Hussey's new 
 writ was tested 2Oth September following. " Will. Husee, miles, constitutes 
 Capitalis Justic. T. R. apud Westm. I Hen. VII. p. I. m. 22." 
 I n
 
 1 62 REIGN 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 considered as already virtually re- 
 versed." 
 
 Next, it was ascertained that more than half the 
 Peers who were summoned, 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 III., 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 toby the king who now is." All the Judges 
 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 VII. 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 
 
 1 Roll ParL I Henry VIL ; I Parl. Hist. 450 ; Lord Bacon's Hist. Henry 
 VII.
 
 I495-] JOHN FINEUX. 163 
 
 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 FlNEUX, 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 -Swenkfield 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, " Miscricordias Domini cantabo 
 in czternum" 
 
 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, genere insignis, justitia prseclarus, pietate 
 refertus, humanitate splendidus, et charitate fcecundiis." 1 
 
 He died in Michaelmas Term, in the seventeenth year 
 of the reign of Henry VIII. 
 
 1 See Fuller's Worthies : Kent.
 
 CHAPTER V. 
 
 CHIEF JUSTICES TILL THE APPOINTMENT OF CHIEF 
 JUSTICE POPHAM BY QUEEN ELIZABETH. 
 
 WE know more of the next Chief Justice, SIR 
 JOHN FlTZJAMES, 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 Wolsey. It is said that Fitz- 
 james, who was a Somersetshire man, kept up an inti- 
 macy with Wolsey when the latter had become a village 
 parson in that county ; and that he was actually in the 
 brawl at the fair when his reverence, having got drunk, 
 was set in the stocks by Sir Amyas Paulet. 1 
 
 While Wolsey tried his luck in the Church with little 
 hope of promotion, Fitzjames was keeping his terms in 
 the Inns of Court ; but he chiefly distinguished himself 
 on gaudy days, by dancing before the Judges, playing 
 the part of "Abbot of Misrule," and swearing strange 
 oaths, especially by St. Gillian, his tutelary saint. His 
 agreeable manners made him popular with the " 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, 
 
 ' Laves of Chancellors, i. 444.
 
 15191523-] JOHN FITZ JAMES. 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 patronage conferred upon him, 
 boldly made Fitzjames Attorney General, notwithstand- 
 ing loud complaints from competitors of his inexperience 
 and incapacity. 
 
 The only state trial which he had to conduct was that 
 of the unfortunate Stafford, Duke of Buckingham, who, 
 having quarreled with Wolsey, and called him a " butch- 
 er's cur," was prosecuted for high treason before the 
 Lord High Chancellor and Court of Peers on very frivo- 
 lous grounds. Fitzjames had little difficulty in procur- 
 ing a conviction ; and although the manner in which he 
 pressed the case seems shocking to us, he probably was 
 not considered to have exceeded the line of his duty ; 
 and Shakspeare makes Buckingham, returning from 
 Westminster Hall to the Tower, exclaim, 
 
 . . . . " I had my trial, 
 
 And, must needs say, a noble one ; which makes me 
 A little happier than my wretched father." 1 
 
 The result was, at all events, highly satisfactory to 
 Wolsey, who, in the beginning of the following year, 
 created Fitzjames a Puisne Judge of the Court of King's 
 Bench, with a promise of being raised to be Chief Jus- 
 tice as soon as there should be a vacancy. 9 Sir John 
 Fineux, turned of eighty, was expected to drop every 
 term, but held on four years longer. As soon as he ex- 
 pired, Fitzjames was appointed his successor. 3 Wolsey 
 still zealously supported him, although thereby incurring 
 considerable obloquy. It was generally thought the 
 new Chief was not only wanting in gravity of moral 
 character, but that he had not sufficient professional 
 knowledge for such a situation. His highest quality was 
 
 1 Henry VIII. act ii. sc. I ; I St. Tr. 287 298. 
 
 * Pat 13 Henry VIII. p. 2. 3 Pat. 17 Henry VIII. Rot. I.
 
 1 66 REIGN OF HENRY VIII. [1529. 
 
 discretion, which generally enabled him to conceal his 
 ignorance, and to disarm opposition. Fortunately for 
 him, the question which then agitated 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. He thus quietly discharged the duties 
 of his office till Wolsey's fall. 
 
 But he then experienced much perplexity. Was he to 
 desert his patron, or to sacrifice his place ? He had an 
 exaggerated notion of the King's vengeful feelings. 
 The Cardinal having not only been deprived of the 
 Great Seal, but banished to Esher, and robbed of almost 
 the whole of his property under process of pramunire, 
 while an impeachment for treason was still threatened 
 against him, the Chief Justice concluded that his utter 
 destruction was resolved upon, and that no one could 
 show him any sympathy without sharing his fate. There- 
 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 see of York, being the gift of a former 
 archbishop. A reference was then made to the Judges, 
 " whether it was not forfeited to the Crown ?" when the 
 Chief Justice suggested the fraudulent expedient of a 
 fictitious recovery in the Court of Common Pleas, 
 whereby it should be adjudged to the King under a 
 superior title. He had not the courage to show himself 
 in the presence of the man to whom he owed every- 
 thing ; and Shelley, a Puisne Judge, was deputed to 
 make the proposal to him in the King's name. " Mas- 
 ter Shelley," said the Cardinal, " ye shall make report to 
 his Highness that I am his obedient subject, and faithful 
 chaplain and bondsman, whose royal commandment and 
 request I will in no wise disobey, but most gladly fulfill and 
 accomplish his princely will and pleasure in all things, 
 and in especial in this matter, inasmuch as the fathers of 
 the law all say that I may lawfully do it. Therefore I 
 charge your conscience, and discharge mine. Howbeit, 
 I pray you show his Majesty from me that I most
 
 i5 2 9-] JAMES FITZJAMES. 167 
 
 humbly desire his Highness to call to his most gracious 
 remembrance that there is both Heaven and Hell." 
 
 This answer was, no doubt, reported by Shelley to his 
 brethren assembled in the Exchequer Chamber, although, 
 probably, not to the King ; but it excited no remorse iu 
 the breast of Chief Justice Fitzjames, 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 sages 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 Fitzjames, although only summoned like the other 
 judges, as an assessor, was actually made a member of 
 the committee, joined in their deliberations, and signed 
 their report. 1 Some of the Articles drawn by him indi- 
 cate a pre-existing envy and jealousy, which he had 
 concealed by flattery 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 meddle 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 
 law, in subversion of your laws." " XXVI. Also when 
 matters have been near at judgment by process at your 
 
 1 It appears very irregular to us, that Sir Thomas More, the Chancellor, 
 should have sat upon the committee, and acted as Chairman, for, although 
 Speaker by virtue of his office, he was not a member of the House, and 
 was only entitled to put the question ; yet he signed the report before the 
 Duke of Norfolk, the first peer of the realm, or the Duke of Suffolk, the 
 King's brother-in-law. In early times the committee on a bill was not con- 
 sidered necessarily a proceeding of the House, and sometimes a bill was 
 "committed to the AUomey and Solicitor General."
 
 i68 REIGN OF HENRY VIII. [1530. 
 
 common law, the same Lord Cardinal hath not only given 
 and sent injunctions to the parties, but also sent for your 
 Judges, and expressly by threats commanding them to 
 defer the judgment, to the evident subversion of your 
 laws if the Judges would so have ceased." " XXXVII. 
 Also he hath divers times given injunction to your ser- 
 vants, that have been before him in the Star Chamber, 
 that they, nor other for them, should make labor, by any 
 manner of way, directly or indirectly, to your Grace, to 
 obtain your gracious favor and pardon ; which was a pre- 
 sumptuous intent for any subject." 
 
 The authority of the Chief Justice gave such weight to 
 the Articles that they were agreed to by the Lords nemine 
 contradicente ; but his ingratitude and tergiversation 
 caused much scandal out of doors, and he had the morti- 
 fication to find that he might have acted an honorable 
 and friendly part without any risk to himself, as the 
 King, retaining a hankering kindness for his old favorite, 
 not only praised the fidelity of Cavendish and the Car- 
 dinal's other dependents who stuck by him in adversity, 
 but took Cromwell into favor, and advanced him to the 
 highest dignities, pleased with his gallant defense of his 
 old master: thus the articles of impeachment (on which, 
 probably, Fitzjames had founded hopes of the Great Seal 
 for himself) were ignominiously rejected in the House 
 of Commons. 1 
 
 The recreant Chief Justice must have been much 
 alarmed by the report that 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 following 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 tyrant on the throne, 
 whose relish for blood soon began to display itself, and 
 became more eager the more it was gratified. 
 
 Henry retaining all the doctrines of the Roman Catho- 
 lic religion which we Protestants consider most objection- 
 
 1 I Parl. Hist. 492.
 
 <534-] JOHN FITZ JAMES. 169 
 
 able, but making himself Pope of England in place of the 
 Bishop of Rome, laws were enacted subjecting to the pen- 
 alties of treason all who denied his supremacy ; and many 
 of these offenders were tried and condemned by Lord 
 Chief Justice Fitzjames, although he was suspected 
 of being in his heart adverse to all innovation in re- 
 ligion. 
 
 I must confine myself to the most illustrious victims 
 sacrificed by him Fisher, Bishop of Rochester, and Sir 
 Thomas More. Henry, not contented with having them 
 attained of misprision of treason, for which they were 
 siffering the sentence of forfeiture of all their property 
 and imprisonment during life, was determined to bring 
 them both to the block ; and for this purpose issued a 
 special commission to try them on the capital charge of 
 having denied his supremacy. The Lord Chancellor was 
 first commissioner; but it was intended that the respon- 
 sibility and the odium should chiefly rest on the Lord 
 Chief Justice Fitzjames, who was joined in the commis- 
 sion along with several other common law judges of in- 
 ferior rank. 
 
 The case against the Bishop of Rochester rested on 
 the evidence of Rich, the Solicitor-General, who swore he 
 had heard the prisoner say, " I believe in my conscience, 
 and by my learning I assuredly know, that the King 
 neither is, nor by right can be, supreme head of the 
 Church of England ;" but admitted that this was in a 
 confidential conversation, which he had introduced by 
 declaring that " he came from the King to ask what the 
 Bishop's opinion was upon this question, and by assuring 
 him that it never should be mentioned to any one ex- 
 cept the King, and that the King had promised he nevei 
 should be drawn into question for it afterwards." The 
 prisoner contending that he was not guilty of the capital 
 crime charged for words so spoken, the matter was re- 
 ferred to the Judges : 
 
 "Lord Chief Justice Fitzjames, in their names, de- 
 clared ' 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 supremacy yea, though it were at the 
 King's own request or commandment he committed
 
 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 ' maliciously gainsay the King's 
 supremacy,' and none other ; wherefore, although by 
 rigor of law you may take occasion thus to condemn me, 
 yet I hope you cannot find law, except you add rigor to 
 that law, to cast me down, which herein I have not de- 
 served." 
 
 Fitzjames, C. J. "All my brethren are agreed that 
 ' maliciously ' is a term of art and an inference of law, 
 not a qualification of fact. In truth, it is a superfluous 
 and void word ; for if a man speak against the King's 
 supremacy by any manner of means, that speaking is to 
 be understood and taken in law as malicious." 
 
 Bishop of Rochester. "If the law be so, then it is a 
 hard exposition, and (as I take it) contrary to the 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." 
 
 Fitzjames, C. J. "This being the King's case, it rests 
 much in the conscience and discretion of the jury; and 
 as they upon the evidence shall find it, you are either to 
 be acquitted or else to be condemned." 
 
 The report says that " the Bishop answered with 
 many more words, both wisely and profoundly uttered, 
 and that with a mervailous couragious, and rare con-
 
 1 5 34-1 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 perceive such a famous and reverend man in 
 danger to be condemned to a cruell death upon so 
 weake evidence, given by such an accuser, contrary to 
 all faith, and the promise of the King himself." 
 
 A packed jury, being left to their conscience and dis- 
 cretion, found a verdict of GUILTY ; and Henry was able 
 to make good his saying, when he was told that the 
 Pope intended to send Bishop Fisher a cardinal's hat, 
 " 'Fore God, then, he shall wear* it on his shoulders, for 
 I will have his head off." ' 
 
 The conduct of the Chief Justice at the trial of Sir 
 Thomas More was not less atrocious. After the case for 
 the Crown had been closed, the prisoner, in an able 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- 
 eral, 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 
 
 1 St. Tr. 395-408.
 
 172 REIGN OF HENRY VIII. [1536. 
 
 the act of parliament be not unlawful, then the indict- 
 ment is not, in my conscience, invalid." 
 
 Lord Chancellor. " Quid adhuc desideramus 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 you 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." 1 
 
 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 was the death which the law ap- 
 pointed for a woman attainted of treason ; yet, as Anne 
 had been Queen of England, some Peers 1 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, 
 
 1 1 St. Tr. 385-396.
 
 '539-1 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 Lord High Steward to be " burnt or beheaded at 
 the King's pleasure;" and the opinion of the Judges 
 was asked, " whether such a sentence could be lawfully 
 pronounced ?" 
 
 Fitzjames, C. %, " 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. 1 
 
 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 said of his merit, save that King 
 
 1 St. Tr. 410-434 ; Hall's Henry VIII. foL 227 b. ; Fox, Mart. u. 987 j 
 Stow, 572 ; Speed, 1014.
 
 174 REIGN OF HENRY VIII. [1523. 
 
 Henry VIII. preferred him, who never used dunce or 
 drone in church or state, but men of activity and ability. 
 He sat above thirteen years in his place, 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 Chancery, 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
 
 IS3I.J 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 
 dObut, 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- 
 
 would seem almost incredible, and wanted little of a 
 feast at a coronation." 1 
 
 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 Boleyn 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 
 
 1 However, he gives a few items as a specimen, 
 show how things had risen in a century :" 
 
 " There were brought to the slaughter-house, 
 
 24 great bicfes, at 
 
 100 fat muttons, at 
 
 5 1 great veales, at 
 
 34 porkes, at . 
 
 90 pigs, at 
 
 Capons of Greece, 10 dozen at 
 
 Capons of Kent, 9 dozen and 6, at 
 
 Cocks of Grose, 7 dozen and 9, at 
 
 Cocks course, 14 dozen, at 8</. and 3</. a-picce. 
 
 Pullets, the best 
 
 Pigeons, 37 dozen, at 
 
 Swans, 13 dozen. 
 
 Larks, 340 dozen, at 
 
 " noting the prices to 
 
 
 
 S. 
 
 d. 
 
 
 i 
 
 6 
 
 8 
 
 the piece. 
 
 
 
 2 
 
 10 
 
 
 
 o 
 
 4 
 
 S 
 
 " 
 
 o 
 
 3 
 
 g 
 
 tc 
 
 o 
 
 
 
 6 
 
 
 
 o 
 
 i 
 
 8 
 
 
 
 o 
 
 i 
 
 
 
 M 
 
 
 
 
 
 8 
 
 M 
 
 
 
 
 
 2 
 
 ob. 
 
 o 
 
 
 
 10 a dozen. 
 
 008 
 
 Dug. Or. Jur. p. 128 ; Stow's Survey of London, 426.
 
 1546.] EDWARD MONTAGU. 177 
 
 seat on the bench ; in attending divine service at St. 
 Paul's, and afterwards dining with the Lord Mayor of 
 London ; in hearing discourse addressed to him, inter- 
 larded with " My Lord" and " Your Lordship ;" in lim- 
 ners soliciting leave to draw his portrait ; in seeing how 
 the Bar not only nodded submissively to his law, but 
 laughed vociferously at his jests ; in encountering the 
 envy and jealousy of his enemies and his rivals ; and in 
 finding that his small salary was amply made up to him 
 from the fees, gratuities, and piesents which flowed in 
 upon him from all quarters. But it is certain that these 
 pleasures soon faded away, and that he wished himself 
 again a sergeant-at-law, quietly and drowsily practicing 
 in the Court of Common Pleas. Unfortunately for his 
 comfort he had a conscience, and he was unable either 
 to obey its dictates or to silence its reproaches. A 
 Chief Justice in those days, long to relish his elevation, 
 must have been made of sterner stuff than Sir Edward 
 Montagu. 
 
 He professed, and, I believe, sincerely, an inclination 
 for the new doctrines of religion ; but, under the statute 
 of the Six ARTICLES, he was often called upon to convict 
 and to sentence to death both Papists and Protestants. 
 He was still more annoyed by what may be called the 
 extrajudicial work required of him. When Anne of 
 Cleves was to be divorced because her person after the 
 marriage was found not agreeable, and the King declared 
 that in going through the marriage ceremony he had 
 never, in his own mind, given his consent to the mar- 
 riage, the Chief Justice was obliged to give his opinion 
 that the marriage had not been duly contracted and 
 ought to be declared null. When Cromwell, for nego- 
 tiating this marriage, and deceiving the King as to the 
 lady's personal charms, was to lose his head, the Chief 
 Justice was obliged to certify to the House of Lords that 
 innocent acts which he had done with the King's authority 
 amounted to treason, and afforded sufficient ground for 
 passing a bill of attainder against him. When Queen 
 Catharine Howard, who certainly had been guilty of in- 
 continence before her marriage, but against whom there 
 was no sufficient evidence of such misconduct afterwards 
 as would subject her to the pains of treason, was to be 
 i 12.
 
 178 REIGN OF HENRY VIII. [1546. 
 
 put to death because she had deceived the King in per- 
 suading him that she had come a virgin to his arms, the 
 Chief Justice was obliged to answer in the affirmative a 
 question submitted to him, "Whether, as the accused 
 party was a Queen, the law would infer that she had 
 committed adultery, from facts which in the case of a 
 common person would afford no such inference?" 1 
 
 This last affair seems to have weighed heavily on his 
 mind ; he thenceforth openly declared that he was tired 
 of his dignity, and he even talked of resigning it and re- 
 tiring into private life. But he was tempted to remain 
 by large grants of abbey lands. An apologist says, " In 
 his time, though the golden showers of abbey lands rained 
 amongst great men, it was long before he would open his 
 lap (scrupling the acceptance of such gifts), and at last 
 received but little in proportion to others of the age." * 
 This very graphically delineates his character. He would 
 much rather have gained all his objects by honorable 
 means, but he could not resist temptation, although sin 
 was followed by remorse. In truth, he partook very 
 largely of the spoils of the Church, and, in spite of his 
 unhappiness, he was reluctant to renounce not only the 
 emoluments of office, but the chance of further aggran- 
 disement. 
 
 An expedient presented itself, of which he eagerly 
 availed himself. The office of Chief Justice of the Com- 
 mon Pleas became vacant by the sudden death of Sir 
 John Baldwin. This had now acquired the name of the 
 "pillow," from its allowing the possessor to be put to 
 sleep by the somnolent pleadings of the Serjeants who 
 exclusively practiced there, in conducting real actions, 
 without any excitement from criminal or political trials. 
 For profit it was superior to the Chief Justiceship of the 
 King's Bench ; and most of those who had the good 
 luck to lay their heads upon it, when taken from the tu- 
 mults of the bar, remained fully contented with it for 
 life. Yet, being inferior in point of rank, an etiquette 
 had prevailed that no one could accept it who had been 
 in the higher situation of Chief Justice of England. Mon- 
 
 1 He answered that the facts put to him hypothetically, " considering the 
 persons implicated, formed a satisfactory presumption that adultery had 
 teen committed." * Fuller.
 
 1546.] THOMAS BILLING. 179 
 
 tagu probably had some scruples, as usual, when he was 
 about to do an improper action ; but if he had any, he 
 soon overcame them, fora 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. 1 
 
 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, 
 
 1 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- 
 tious."
 
 i8o REIGN OF EDWARD VI. [1547 
 
 was under prosecution for treason, the principal charge 
 against him being that, as he was descended from the 
 royal family through a female, he had ever since his 
 father's death quartered on his shield the royal arms of 
 England with a 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 ought 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 had quar- 
 tered the royal arms in the manner alleged, which, as he 
 knew, by the laws of this realm amounted to high 
 treason. This document was attested by the two Chief 
 Justices (Montagu signing after Lyster 1 ) 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 demise 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 
 
 1 St. Tr. 458.
 
 I553-] EDWARD MONTAGU. 181 
 
 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. Being required 
 to prepare a will for the King to the effect before stated, 
 he was thrown into greater perplexity than he had ever 
 experienced when Chief Justice of the King's Bench under 
 Henry VIII. ; and, although charged to obey upon his 
 allegiance, he 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. 
 
 He waited upon her when she came from Sion House 
 to the Tower of London preparatory to her coronation ; 
 but he was one of the first to desert her when he heard 
 of the general expression of loyalty in 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-
 
 1 52 ASIC?? OF QUEEN MARY. [1546 
 
 writing, and a report being spread that he had furnished 
 the arguments in law by which an attempt had been 
 made to support it. He was arrested, confined in the 
 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 ;iooo, and by 
 the surrender of some abbey lands granted to him at the 
 recommendation of the Protector Somerset. 
 
 He then retired to his country house, where he died 
 on the loth of February, 1556- He was buried with his 
 ancestors in Hemington church, and a splendid 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 EDWARDI MOUNTAGU MILITIS NUPER CAPITALIS 
 
 JUSTIC. DE COMMUNI BANCO APUD WESTM. 
 " Montacute pater, legum jurisque magister, 
 O Edwarde, vale ! quern disciplina severa 
 Furit et improbatis hominum scelerata timebat. 
 Moribus antiquis vixisti, pads amator, 
 Virtutis rigidus custos, vitiique flagellum. 
 O venerande senex! f.e luxoriosa juventus, 
 Criminis u'torem metuens, in funere gaudet. 
 Patria sed meret, sancto spoliata latore, 
 Qui vixit justi summus defensor et sequL 
 Hunc tu praeteriens lector defende precando." 1 
 
 Having been thrice married, he left eight sons and 
 nine daughters, for all of whom he was able amply to 
 provide. The title of Duke of Montagu bestowed 
 upon one branch of his descendants, and of Earl of 
 Halifax upon another, have become extinct, but the 
 Duke of Manchester and the Earl of Sandwich are 
 sprung from him in the direct male line. 
 
 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, 2ist 
 March, 1552; Sir Thomas Bromley, 4th Oct., 1553; 
 
 1 a Bridge's Northampton, 54
 
 1556.] JAMES DYER. 183 
 
 Sir William Portmore, nth June, 1554; and Sir Ed- 
 ward Saunders, 8th May, 1556) were neither eminent in 
 their profession nor connected with the stirring events 
 of the times in which they lived. I shall therefore pass 
 them over without further notice, and introduce to the 
 reader a contemporary Chief Justice of the Common 
 Pleas, to whom we lawyers still look up with much 
 reverence SIR JAMES DYER. 
 
 I myself am bound particularly to honor him as the 
 first English lawyer who wrote for publication " Reports 
 of Cases " determined in our municipal courts, being 
 followed by a long 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- 
 ducing a Law Reporter, 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 assiduos tandem collecta labores, 
 
 Expectata diu, jam monumenta patent. 
 Et quse ter denos vix sunt congesta per annos, 
 
 En uno inclusit pro brevitate libro. 
 In cujus laudem, satis est scripsisse DlERUM, 
 
 Patronoque alio non obus esse reor. 
 Cujus nota satis doctrina, potentia, virtus, 
 
 Cujus juncta gravi cum pietate fides. 
 Cujus summus honor, cujus veneranda potestas, 
 
 Semper erunt domini signa notaeque sui. 
 Ergo vade Liber, primoque in fronte, DlERUM 
 
 Inscriptum gestas, hoc duco tutus eris. 
 Improba ne dubites vani convicia vulgi, 
 
 Sat tibi sit tanti gesta fuisse viri. 
 Quern nee consumet spatium nee longa vetustas, 
 
 Tempora quern rapient nulla, nee ulla dies : 
 Docte DIERE vale, tua fama perennis Olympo 
 
 Vivet ad extremos te moriente 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. 
 
 He 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
 
 184 REIGN OF QUEEN MARY. [1537. 
 
 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 1512, 
 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 yeares he was to learning set 
 
 And vessels long their seasoned liquors taste : 
 As time grew on, he did to Oxford get, - 
 
 And so from thence he was in Strand Inne^ plaste ; 
 But him with fame the Middle Temple graste : 
 The depth of lawe he searcht with painefull toyle, 
 Not cunning quirks the simple man to spoyle." * 
 
 As a proof of the early genius he displayed for report- 
 ing, we are told by prose authoities that 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. 
 
 1 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.
 
 I553-] JAMES DYER. !8 S 
 
 He avoided all evil arts to promote the success either of 
 others or of himself. 
 
 " He with much care his clyents' wrongs redrest ; 
 
 By vertue thus he clymede above the rest, 
 And feared no fall sith merit was his guide, 
 When reaching heads ofte slip in cheifest pride." l 
 
 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, although without the rank of Soli- 
 citor-General, or of Sergeant, usually considered neces- 
 sary for that dignity. We have no particulars of his per- 
 formance, when, being 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, 4 at the end of which, Dyer ceased for ever 
 to be a parliament man ; and, having received 100 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. 
 
 Immediately 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 William Cecil, and the Princess 
 Elizabeth herself, good Protestants in their hearts. 
 have conformed, during this reign, to the dominant wor- 
 
 1 Whetstones. I Parl. Hist. 599-602.
 
 i86 RATGN 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. 1 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- 
 
 1 It has been supposed that he acted as one of the judges 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 they were to be guilty of a contempt of court, and deserve to 
 be committed, since, for anything I know, they might at any moment seat 
 themselves on the bench and act as judges.
 
 I554-J JAMES 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." Throckmorton : " 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
 
 1 88 REIGN OF QUEEN ELIZABETH. [1557 
 
 said Duke that Sir Nicholas Throckmorton 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. 1 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 
 1 St. Tr. 869-902.
 
 IS59-] JAMES DYER. 189 
 
 Chief allowed by himself, as well as the rest of the 
 world, to be greatly his superior. 1 
 
 " From roome to roome 2 he slept by tme degrees, 
 
 And mounts at length to soveraigne justice' place, 
 Where long he sat Chief Judge of Comon Pleas, 
 And to say with truth he sat with justice gnite 
 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 processe 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 stain e." 8 
 
 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- 
 teresting, 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 
 which, on account of their difficulty, were adjourned 
 into the Exchequer Chamber before all the Judges. 4 
 His " Reports " were not printed till after his death ; 
 but he had prepared them 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, 
 
 1 If this precedent had been followed, it might have been very useful for 
 Westminster Hall ; but however superior a puisne mav have been esteemed 
 to the chief, I am not aware of any other instance of their changing places, 
 
 * " Roome" in old English was used for office. 3 Whetstones. 
 
 4 This course was very common then, and it continued to be occasionally 
 resorted to till the reign of George IV., when it was entirely superseded by 
 the establishment of a new system of courts of error, by which the decisions 
 of each of the superior courts of common law were subjected to the review 
 of a tribunal 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, which was superseded in the year 1848, by the bill I had the honor to 
 introduce for establishing a court of appeal from courts of oyer and ter- 
 ra iner, and from the quarter sessions.
 
 190 REIGN OF QUEEN ELIZABETH. [1559. 
 
 they 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 prasenti ; 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 had never 
 been joined in laivful matrimony? Her counsel cited an 
 authority from the YEAR-BOOK of 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."* 
 
 1 In Norman-French, "ne unques acccuples en loyal matrimonie." 
 * Dyer, Rep. 313 a, 368 b.
 
 I559-J JAMES DYER. 191 
 
 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. 1 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 lit clericus, 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 favorem vita 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 in 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 was 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 
 " villein regardant or villein in gross ?" and that having 
 greater rights over the plaintiff as " villein in gross " 
 
 1 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 
 cUrk (Pope Joan's case ot being recognized), all women convicted of lar- 
 ceny were hanged, whether they could read or not. * Dyer, 505 a.
 
 i 9 2 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." 1 
 
 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, " does 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 villein would clearly have passed as part of the 
 manor, 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. 1 
 
 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. 1 
 
 1 Dyer, 48 b. pi. i. * 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. Lift. 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 
 Yillein was professed as a monk, the lord could not seize him, but might 
 maintain a similar action against the superior of the convent who admitted 
 him. Lit/ sec. 202 ; 2 Bl. Ccm. 95, 96.
 
 OLD HALL OF THE INNER TEMPLE.
 
 '559-] JAMES DYER. 193 
 
 Butler, lord of the manor of Badminton, in the county 
 of Gloucester, contending that Crouch was his villein re- 
 gardant, entered into certain lands, which Crouch had 
 purchased in the county of Somerset, and leased them 
 to Fleyer. Crouch thereupon disseized Fleyer, and 
 Fleyer brought an action against Crouch, who pleaded 
 that he had purchased the land. Fleyer replied his 
 lease from Butler, and alleged that " Butler and his an- 
 cestors, and all those whose estate he hath in the manor 
 of Badminton, were seized of Crouch and his 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, " That 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 regardant 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 year 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 defendant, chiefly on this ground, 
 " because no actual or full seizin in Butler and his an- 
 cestors, of Crouch and his ancestors as villeins regardant, 
 is found, but 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 
 
 1 Dyer, 266. pi. n. Villeins in gross as well as villeins regaidant were 
 considered real property. Littleton thus defines villeins in gross : " If a man 
 or his ancestors, whose heir he is, have been seized of a villein, and of his 
 ancestors as of villeins in gross, time out of memory of man, these are vil- 
 leins in gross." (Litt. sec. 182.) Villeinage is supposed to have finally dis- 
 appeared in the reign of James I., but there is great difficulty in saying 
 when it ceased to be lawful, for there has been no statute to abolish it ; and 
 by the old law, if any freeman acknowledge himself in a court of record to 
 be a villein, he and all his afterborn issue and their descendants were 
 villeins. Litt. sec. 185. 
 II3.
 
 t 9 4 REIGN OF QUEEN ELIZABETH. [1580. 
 
 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 primo 
 Henry VII., 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 Eyre ; 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 answerajple for the unjust conviction which 
 followed. 1 
 
 If ruffled by any annoyance in the discharge of his ju- 
 dicial duties, he prayed to Heaven for composure, and 
 1 St Tr. 957.1042.
 
 1580.] JAMES DYER. 195 
 
 when he returned home he played an air on the vir- 
 ginals. 
 
 *' For publique good, when 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 think we heare." 1 
 
 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, sic jubeo? " 
 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 jubeo, 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' 
 
 1 Whetstones.
 
 196 REIGN OF QUEEN ELIZABETH. [1582. 
 
 (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 contplained 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 /ist 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 perennia, 
 In queis spirat adhuc ; spirat in his themis, 
 Libertas, Pietas, Munificentia. 
 En decreta, libros vitam, obitum senis ! 
 ./Eternas statuas ! Vivit in his themis, 
 Libertas, Pietas Munificientia. 
 ^Lternas statuas has statuit sibi : 
 .<Eternis 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 DlERUS," 
 says that annalist, " in communi placitorum tribunali 
 Justiciarius Primarius qui animo semper placido et sereno 
 omncs judicis cequissimi partes implevit ; et juris nostri 
 prudent iam commentariis 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, though the gifte were in his grace, 
 4 The common-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 praesertim rei ipsius habita, Authorisque facultate 
 perspecta) Protectorem et Patronum adscribere ; tamen 
 cum mors nobis Authoris vitum inviderit, multosque 
 haec nostra setas protulerit, quibus cordi est alienae in- 
 dustriae obtrectare, opere precium existimavimus huic 
 nostrae orbitati alterum patrem parentemque adsciscere, 
 quern quidem te(vir insignissime) ut aptissimum, ita et pa- 
 ratissimum fore humillim 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 appeare such as the late reverend Judge and paine- 
 full Author thereof may receive the guerdon worthie his 
 exquisite and painfull travaile." We have likewise 
 " LECTORI CARMEN," which, after comparing DYERUS 
 to the bee, who collects honey for others, thus proceeds 
 
 " Fasciculum causas omnes congessit in unum 
 
 Curia quas lustrix sex celebrata dedit. 
 Edidit has alter, fructus ut prostera proles 
 
 Perciperet, tanto qui placuere viro, 
 Edidit ut semper post funera viveret author : 
 
 Quern rapuit studiis mors inamica piis." 
 
 I am afraid that the hope of immortality from LAW 
 REPORTS is visionary. But Dyer may really be consid- 
 ered the Shakspeare 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." 1 
 
 1 Pref. to Cro. Car.
 
 198 REIGN OF QUEEN ELIZABETH. [1555. 
 
 He was married to Margaret, daughter of Sir Mauiice 
 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 flourished for several generations, and 
 was honored with 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, reftige of those whom wrong did paine, 
 A Dyer such as dy'de without a stayne" 1 
 
 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 VIII., 
 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 SIR ROBERT 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, a. pro- 
 vince which had reached a considerable degree 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 different, 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 ih Northamptonshire, who had been 
 long settled there, and were a branch of a family of the 
 same name which had flourished from time immemorial 
 
 1 Whetstones. 
 
 ' Spelt likewise Catlyn, Catelyn, Catalyn, Catlin, Catelin., and Catehne. 
 
 1 Worthies, i. 568.
 
 1555-] ROBERT CATLYNE. I99 
 
 in Kent. He was born at Bilbey in Leicestershire, hav- 
 ing the bad or good luck to be the younger son of a 
 younger brother, who had married the heiress of a small 
 estate in this county. 
 
 I do not find any thing authentic of his early career, 
 except that he studied law with extraordinary diligence in 
 the Middle Temple. The first considerable distinction 
 which he gained in public life seems to have been by the 
 wonderful feast given in the year 1555, when he was called 
 Sergeant, the account of which fills many folio pages of 
 Dugdale's ORIGINES JURIDICIALES. It was held soon after 
 Queen Mary's marriage, and the object was to show to 
 the Spanish nobles who accompanied Philip the riches 
 and magnificence of England. There were seven barris- 
 ters invited in the same call, and besides rings of great 
 weight presented to the Queen, the officers of state and 
 the judges, and large pecuniary contributions each vol- 
 untarily furnished contingents in kind, of which the fol- 
 lowing is a sample : 
 
 Gates sent in by Mr. Catlyne. 
 
 J. d. 
 
 9 swans, each at icxr. - - - - -4100 
 
 3 pheasants, at 4J. - - - - -0120 
 
 Pigeons, 9 dozen and a half, at i8*/. a dozen - - - o 14 3 
 
 Capons, 7 at 2s. 6d, - - - - - -0176 
 
 Pea chickens, 4 at 2s. - - - - - O 8 O 
 
 Red deer, rated at- - - - - -OIOO 
 
 Does, fat, 5, not valued. 
 
 Claret wine, I hogshead - - - - -1176 
 
 Quinces, 60 - - - - - -030 
 
 Then follow turkey chicks, woodcocks, curlews, good- 
 wits, knotts, plovers, larks, snipes, teals, and coneys, from 
 the same donor. This, being a far more liberal donation 
 than any of the other new sergeants furnished, materially 
 added to the splendor of the entertainment, and was 
 supposed to lay the foundation of the great advance- 
 ment which was speedily bestowed upon Sergeant Cat- 
 lyne. 1 
 
 1 The reader may like to see the dishes and the prices of them, at one of 
 the many tables laid for different degrees of guests : 
 
 " A proportion for two mess of meat for the table prepared for the 
 Lords of the King and Queen's Privy Coancil, and certain Spanish 
 Lords and Gentlemen that accompanied them to the feast
 
 2OO 
 
 REIGN OF QUEEN MARY. 
 
 [I559- 
 
 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 the new doctrines in religion, he was so discreet as to 
 conform to the creed of the Court, whatever that might 
 be, following 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 f 
 A spuld of brawn for either mess - 
 Boiled capons in white broth, 2 at a mess - 
 Swans roasted, 2 ; qach 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 pasties ; 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 six - 
 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* - 
 
 * d. 
 400 
 
 050 
 
 o o 
 o o 
 
 O IO O 
 O IO O 
 
 0160 
 0160 
 
 .400 
 
 - I O O 
 
 .0160 
 -0160 
 
 -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- 
 dots.
 
 I 5 7i.] ROBERT CATLYNE. 201 
 
 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. jf. 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 every 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." Duke : " I will 
 tell you what moveth 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 hisnself 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 legates 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
 
 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 resteth in the breast of the Peers 
 whether or no to afford credit unto them." 
 
 Catlyne 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. jf. C. : '* Usage is the best expounder of the law ; and 
 we know that, as this statute has been expounded, you 
 are guilty if you have said or done as the witnesses tell of 
 you." Duke : "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 Majesty's 
 enemy, while the Prince of that subject is her friend and 
 in amity with her? Lord C. J. C. : " In some cases it 
 may be so ; as in France, if the dukedom of Britany 
 should rebel against the French King, and should (dur- 
 ing the amity between the French and Queen's Majesty) 
 invade England, those BritopB would be the French 
 King's subjects and the Queen's enemies, though the 
 French King remaineth in amity ; and so in your case.
 
 15 7 1.] ROBERT CATLYNE. 203 
 
 
 
 Now this is clearly sophistical reasoning ; 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. 1 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 Bishop of Ross ; but he deemed it more 
 prudent to plead guilty, and to pray for mercy. Lord 
 Chief Justice Catlyne then passed 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 are bound to 
 
 1 During the Canadian rebellion, I gave an opinion as Attorney General, 
 which was acted upon, that an armed band 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 ELIZABETH. [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- 
 dren, 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 ' vade post me, Satana' We must 
 first look unto God, the High Prince of all princes, and 
 then to the Queen's Majesty, the second prince and 
 God's deputy, and our sovereign prince on earth. You 
 are 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 Him, your prince, and your country 
 withal ; as it is said in the Gospel, Bonus seminator semi- 
 nat'it semen bonum, but supcrvenit inimicus et seminavit 
 zizania ; 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 their own 
 use, the seed of hemp, and felt of it, they had received 
 according to their deserving. If they had been handled 
 as theydeserved, 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. dc 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
 
 157 1.] ROBERT CATLYNE. 205 
 
 answer for it. As for them that seek fame by treason, 
 and by seeking the destruction of princes, what shall 
 sound that fame ? Shall the golden Trump of Fame 
 that Chaucer speaketh of? No ! but the black Trump 
 of Shame shall blow out their infamy for ever." 1 
 
 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 
 Newenham, in Bedfordshire, where, according to the 
 directions of his will, he was privately buried, without 
 any monument being erected to his memory. 
 
 With the opportunity of amassing great riches, he 
 died poor, leaving behind him a high reputation for dis- 
 interestedness, as well as learning and ability. He 
 would not accept any grant of church lands ; and 
 although his place of residence had been the site of a 
 priory, he had purchased it at a fair price, paid from his 
 honest earnings. 9 A descendant of his having spoken 
 disrespectfully to a Chief Justice, whose hands were not 
 so clean, and being thus rebuked, " I expected not such 
 treatment from one whose kinsman was my predecessor 
 in this court, and a great lawyer," made answer, " My 
 Lord, he was a very honest man, for he left a small 
 estate." 8 
 
 He married Anne, daughter of Thomas Bowles, Esq., 
 by whom he had an only daughter and heir. She be- 
 came the wife of Sir John Spencer, of Althorpe, in the 
 county of Northampton ; and from them descend the 
 Dukes of Marlborough, so that the 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 CHRIS- 
 TOPHER WRAY, of whom little is known, except from 
 the Law Reports and the Parliamentary history. His 
 parentage even is doubtful. There are two statements 
 
 1 St. Tr. 1044. I must say, for the honor of Westminster Hall, that not- 
 withstanding the quaintness of this composition, I doubt whether the 
 pulpit, the stage, or parliament, had yet produced anything better. Every 
 one must admire its rhymthmical cadences. 
 
 s Hyson's Bedfordshire p. 89. Fuller's Worthies, ii. 568.
 
 2o6 REIGN OF QUEEN ELIZABETH. [1571. 
 
 on the subject in thi books of the Herald's College : 
 one says that he was " the son of Thomas Wray, of 
 Richmondshire, by the daughter and heir of Richard 
 Jackson, in the county of York;" and the other, that 
 he was " the natural son of Sir Christopher Wray, Vicar 
 of Hornby, by a wench in a belfry, and brought up to 
 the study of the law by a brother of his reputed father, 
 who was a servant of the Lord Conyers of Hornby." 
 The latter is the more probable story; and in the 
 Visitation of the county of Lincoln by the Heralds in 
 1634, there is a pedigree of the family, signed by his 
 grandson and heir, Sir John Wray, Bart., 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. 1 
 
 In April, 15/1, he was returned to parliament; and 
 he must then have been very high in his profession, for 
 he was elected Speaker of the House of Commons, a 
 post, in those days, always conferred 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 Pope, 
 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 was 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. Chron. Ser.
 
 15 74-J CHRISTOPHER WRAY. 207 
 
 was showed in abatement of an action at common law ; 
 which, beside that it was of no force, the King and 
 judges were of mind that he who brought it had de- 
 served death, so to presume on any foreign authority ; 
 which authority being now by God's grace and her 
 Highness's means abolished, and the freedom of con- 
 sciences and the truth of God's word established, we 
 ought greatly to thank God and her." Having dis- 
 coursed very tediously concerning religion, government, 
 and legislation, and quoted Plato " de Legibus" he con- 
 cluded with a just compliment to Elizabeth, " that she 
 had given free course to her laws, not requiring the stay 
 of justice by her letters or privy seals, as heretofore 
 sometimes hath been by her progenitors used ; neither 
 hath she pardoned any without the advice of those be- 
 fore whom the offenders have been arraigned, and the 
 cause heard." 
 
 The Queen's answer was very courteous to him ; but 
 for his guidance as a Speaker she told him, that " the 
 Commons would do well to meddle with no matters of 
 state but such as should be propounded unto them, and 
 to occupy themselves with other matters concerning the 
 commonwealth." 
 
 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 act 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 capacity of their under- 
 standing. 1 
 
 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. 9 
 
 When elevated to the bench, he was distinguished not 
 
 1 Parl. Hist. 724. 
 
 9 According to Dugdale, his patent bore date May 14, a fortnight before 
 the prorogation ; but I think this must be a mistake, for the common law 
 judges never sat in the House of Commons except during the Common- 
 wealth.
 
 ao8 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 
 troublous 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 
 the 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 high merits discovered in him by 
 the Lord Keeper's harangue when he was sworn in. 
 
 The new Chief Justice fully justified the choice made 
 of him. He was not at all puffed up by his elevation. 
 In private life he continued remarkably courteous, but 
 he would permit no solicitations, even from the most 
 powerful, respecting causes which were to come before 
 him. " Each man he respected in his due distance off 
 the bench, and no man on it could bias his judgment." 1 
 
 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 
 
 1 Fuller.
 
 1581.] CHRISTOPHER WRAY. 209 
 
 with the dextrous manner in which he obtained a con- 
 viction, by the display of great seeming calmness 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 : 
 
 Wray, L. C. jF. " 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 Not Guilty. 1 ' 
 
 The evidence was wholly insufficient to make out the 
 charge of treason, and merely proved that the prisoners 
 had come on a fanatical mission from Rome in the hope 
 of reconverting the kingdom to the true faith. 1 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. J. : " Campion, and the rest, what can you 
 
 1 While Campion lay under accusation in the Tower he was several times 
 examined under torture, and gave such clever answers, that Elizabeth had a 
 great curiosity to see him. " By her order he was secretly brought one eve- 
 ning from the Tower, and introduced to her at the house of the Earl of 
 Leicester, in the presence of that nobleman, of the Earl of Bedford, and 
 of the two secretaries. She asked him ' if he acknowledged her for Queen ?' 
 He replied ' not only for Queen, but for his lawful Queen' She then 
 inquired ' if he believed that the Pope could excommunicate her lawfully 7 
 He answered ' that he was not a sufficient umpire to decide in a controversy 
 between her Majesty and the Pope.' " Lingard, viii. 147. 
 114.
 
 2io REIGN OF QUEEN ELIZABETH. [1584. 
 
 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." 1 
 
 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, trusting to a pardon ; but, the 
 plea being recorded, he became frightened, and wished 
 to retract it. This indulgence the Court refused, and 
 he was asked why judgment 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, unless 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 good 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 
 1 I St Tr. 1049-1088.
 
 1587-] CHRISTOPHER WRAY, 211 
 
 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 enim lex ssquior ulla 
 
 Quam necis artifices arte perire sua." 1 
 
 Lord Chief Justice Wray was named in the commis- 
 mission for the trial of Anthony Babington, and in that 
 for the trial of the Queen of Scots herself; but he did 
 not take a leading part in either 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. 2 
 
 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 Fotheringay, 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 1 St. Tr. 1095-1112. 
 
 * I St. Tr. 1127. 1167 ; Lives of Chancellors, vol. ii. chaps, xliv. xlv.
 
 aia REIG-V 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 warrant 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." Lord 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 
 warrant 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 bomim, and 
 not bene. Finally, I agree that the punishment shall be 
 as it was first of all assessed. But further I must 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 offended there- 
 withal. Further, my lords, I am directed to signify to 
 you from her Majesty, that forasmuch as the son's rela- 
 tion in telling them that she was pleased, and what they 
 did was for her safety, and they be sorrowful because 
 they were abused by him, therefore her Majesty im- 
 puteth no fault to any, but only to him, and the rest she 
 doth unburden of all blame." 1 
 
 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, 
 1 I St. Tr. 1229-1250.
 
 1589.] CHRISTOPHER WRAY. 213 
 
 although he thereby deprived himself of all hope of 
 mercy. 1 
 
 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 Burghley 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 Term, 34 Eliz., died Sir Christo- 
 pher Wray, Knt., Chief Justice of Majesty's Court of 
 Queen's Bench, 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 I., 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. 
 
 1 See his Apologetical Discourse to Walshingham, I St. Tr. 1259. In 
 truth, Elizabeth's only hesitation about sending off the warrant arose from a 
 wish and a hope that it might be rendered unnecessary by a private assassi- 
 mtion. 8 I St. Tr. 1250. 3 Cro. Elk. 280.
 
 CHAPTER VI. 
 
 CHIEF JUSTICES FROM THE DEATH OF SIR CHRISTOPHER 
 WRAY TILL THE APPOINTMENT OF SIR EDWARD COKE 
 BY JAMES I. 
 
 THE career of our next hero is capable of being made 
 amusing as well as instructive. Although at one 
 time in the habit of taking purses on the highway 
 instead of expiating his offenses at Tyburn, he lived to 
 pass sentence of death upon highwaymen, and to be a 
 terror to evil-doers. 
 
 JOHN POPHAM was born in the year 1531, at Welling- 
 ton, in the county of Somerset, a place 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 for ever famous by taking from it his title of Duke, 
 rather than from the scene of any of his glorious victor- 
 ies. He was of gentle blood, being a young son of a 
 family who, though simple squires and of Saxon origin, 
 had for many generations been entitled to bear arms, and 
 who had been settled on a small estate at Huntworth in 
 the same county. While yet a child he was stolen by a 
 band of gypsies, and remained some months in their so- 
 ciety ; whence some pretended to account for the irreg- 
 ular habits and little respect for the rules of property 
 which afterwards marked one period of his life. His 
 captors had disfigured him, and had burnt on his left arm 
 a cabalistic mark which he carried with him to the grave. 
 But his constitution, which 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-
 
 155 1.] JOHN POP HAM. 215 
 
 lege, Oxford. Here he was 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 
 was going where he would see 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 wild 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 profligate companions, and he en- 
 gaged 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 supply 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 that, planting themselves in ambush on 
 Shooters' Hill, or taking other positions favorable for 
 attack or escape, they stopped travelers, and took from 
 them not only their money, but any valuable commo- 
 dities which they carried 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 impossible. We must remember that 
 this calling was not then by any means so discreditable 
 as it became afterwards ; that a statute was made during 
 Popham's youth by which, on a first conviction for rob- 
 bery, a peer of the realm or lord of parliament was en- 
 titled to benefit of clergy " though he cannot read /"' and 
 that the traditions were still fresh, of robberies having 
 been committed on Gad's Hill under the sanction of a 
 
 1 1 Ed. VI. c. 12. s. 14.
 
 ai6 REIGN OF QUEEN ELIZABETH. [1551 
 
 Prince of Wales. 1 The extraordinaiy 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, being of mature age, he was mar- 
 ried to a respectable woman. At last, a sudden change 
 was produced by her nnhappiness, and the birth of a 
 child, for whom he felt attachment. We have the fol- 
 lowing account of his reformation from Aubrey : 
 
 " For severall yeares he addicted himselfe but little to 
 the studie of the lawes, but profligate 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, 
 which, upon her importunity, he did, beeing then about 
 thirtie yeares old. He spake to his wife to provide a 
 very good entertainment for his camerades to take his 
 leave of them, and after that day fell extremely hard to 
 his studie, and profited exceedingly. He was a strong, 
 stout man, and could endure to sit atit day and night ; 
 became eminent in his calling, had good practice, was 
 called to be a Sergeant and a Judge." 2 
 
 Fuller, always anxious to soften whatever appears dis- 
 creditable to any of his " Worthies,' 1 says of Popham, 
 
 " In his youthful days he was as stout and skillful a 
 man at sword and buckler as any in that age, and wild 
 enough in his recreations. But, oh ! if Quicksilver could 
 really be fixed, to what a treasure would it amount ! 
 Such is wild youth seriously reduced to gravity, as by 
 this young man did appear. He applied himself to more 
 profitable fencing the study of the lawes ; therein 
 attaining to such eminency that he became the 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, 
 
 1 If Popham's raids had been a little later, they might have been imputed 
 to the First Part of Henry IV., which must have had at least as much effect 
 s the Beggar's Opera in softening the horror excited by highway robbery. 
 
 Aubrey, iii. 492. Vol. ii. 284.
 
 I579-] JOHN POP HAM. ai; 
 
 and was accustomed to sneer at the " book learning " of 
 Francis Bacon. 
 
 It might be supposed that Popham would get on par- 
 ticularly well in the Crown Court ; but, from the dread 
 of encountering some of his 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 question of law to the 
 judges, or in an issue of fact to be determined by a jury. 
 To add to the gravity of his newly assumed character, 
 he was eager to reach the dignity of the coif; and, after 
 some opposition on account of the stories circulated 
 against him, in 1571 he actually became Sergeant Pop- 
 ham. His feast was on a scale of extraordinary mag- 
 nificence, and he furnished some very fine old Gascony 
 wine, which the wags reported he had intercepted one 
 night as it was coming from Southampton, destined for 
 the cellar of an alderman of London. 
 
 However, in spite of such jibes, he acquired the repu- 
 tation of being very skillful in conducting real actions, 
 which were exclusively tried in the Court of Common 
 Pleas, where he now practiced ; and his business steadily 
 increased. He was likewise concerned in some cases in 
 the Court of Wards and Liveries against the Crown ; 
 and Elizabeth, who had a regular report made to her of 
 all suits in which her interests were concerned, 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 practice in the Court of Queen's Bench, he resorted 
 to the unusual expedient of unsergeanting or discoifing 
 himself; so he was once more "John Popham, Es- 
 quire." 1 He gave high satisfaction by the manner in 
 
 1 " Joh. Popham arm exonerates de nomine, statu et gradu Serv. ad 
 .egem." Pat. 21 Eliz. p. 2. Sergeant Copley, when made So.icitor-Gen-
 
 ai8 REIGN OF QUEEN ELIZABETH. [1581. 
 
 which he conducted the Queen's business ; and in the 
 beginning of the year 1581 he was, on her recommenda- 
 tion, elected Speaker of the 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- 
 ment." 1 
 
 The very first motion made was by Paul Wentworth, 
 the Puritan, for a public fast to be appointed by the 
 House, and for a daily sermon, so that, beginning their 
 proceedings with the service and worship of God, He 
 might the better bless them in all their consultations 
 and actions. After a long debate, the motion was car- 
 ried by a majority of 115 to IOO. 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 Majesty'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." He then asked the question, " whether the 
 Vice-Chamberlain should carry their submission to her 
 Majesty?" And it was agreed to unanimously. Mr. 
 Vice-Chamberlain to the great comfort of the Speaker 
 
 eral and Attorney-General, remained a Sergeant ; and when become Lord 
 Lyndhurst and Lord Chancellor, he wore the coif, and called the Sergeants 
 his " brothers." 
 
 1 I Parl. Hist. 8n. This election of Speaker did not take place at the 
 commencement of a parliament, but on account of the death of the Speakei 
 during the parliament an event which dees not seem to have happened be- 
 fore, and which caused much perplexity.
 
 1585.] JOHN POP HAM. 2i 9 
 
 and of the House, " brought answer of her Majesty's 
 acceptance of the submission, expressing at the same 
 time some anxiety that they should not misreport the 
 cause of her misliking, which was not that she objected 
 to fasting and prayer, but for the manner in presuming 
 to order a public fast without her privity, which was to 
 intrude upon her authority ecclesiastical." 1 
 
 At the end of the session Mr. Speaker Popham pre- 
 sented to the Queen all the public bills passed, amount- 
 ing to the unexampled number of fifteen ; and in a long 
 speech, in which he explained and praised them, he 
 prayed the Queen graciously to assent to them, thus 
 concluding " I do 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 foreign enemies 
 abroad, and the traitorous practices of most unnatural 
 disobedient subjects both abroad and at home, envying 
 the blessed and most happy and quiet government of 
 this realm under your Highness, upon the thread of 
 whose life only, next under God, dependeth the life and 
 whole state and stay of every your good and dutiful 
 subjects." 2 
 
 This was Popham's last parliamentary effort, as he 
 never again sat in the House of Commons, and in the 
 House of Lords he was condemned to silence. 
 
 Soon after the prorogation he succeeded Sir Gilbert 
 Gerrard as Attorney-General, and had Sir Thomas Eger- 
 ton (afterwards Lord Ellesmere) for his Solicitor. Diffi- 
 cult times came on, but these law officers always rose 
 with the occasion, and brought the important state 
 prosecutions in which they were engaged to a fortunate 
 issue. 
 
 The new Attorney-General was called upon to take 
 part in a solemnity which seems very strange to us. In 
 that age, when parliament rarely met, and there were 
 no newspapers in which ministers could give their ex- 
 planations of any public occurrence, or defend them- 
 selves from any charge orally circulated against them, it 
 was usual to have a grand assemblage in the Star Cham 
 
 1 I Parl, Hist. 813. z Ibid. 820.
 
 220 REIGN OF QUEEN ELIZABETH, [1585. 
 
 her, to which the nobility, the Lord Mayor and alder- 
 men of London, and other notabilities, were invited, 
 and then the different members of the government (with- 
 out any opponent) made speeches in their own justifica- 
 tion and in their own praise. Henry Percy, Earl of 
 Northumberland, a Roman Catholic, much attached to 
 the interests of Queen Mary, having been kept for 
 several years a close prisoner in the Tower, had been 
 shot through the head by three slugs, and was found 
 dead in his bed on the night after his guard had been 
 changed by the orders of Sir Christopher Hatton, the 
 Vice-Chamberlain. Notwithstanding a verdict by the 
 coroner's jury of felo-de-se, a rumor was spread, and very 
 generally credited, that he had been assassinated, be- 
 cause 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 officers of 
 state, from the Lord Chancellor to the Vice-Chamber- 
 lain ; and, says the report, 
 
 " The audience was very great of knights, esquires, 
 and men of other 'quality. The Chancellor -declared 
 that, lest, through the sinister means of such persons 
 as be evil affected to the present estate of her Majesty's 
 government, some bad and untrue conceits might be 
 had, as well of the cause of the Earl's detainment as of 
 the manner of his death, it was thought necessary to 
 have the truth thereof made known in that presence. 
 He therefore required her Majesty's learned counsel to 
 deliver at large the particularities both of the treasons, 
 and in what sort the Earl had murdered himself. Then 
 began John Popham, Esq., her Majesty'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 was out of the unexampled clemency of her 
 Highness that the deceased had not long before been 
 convicted as a traitor, and that, from the dread of a 
 public trial and execution, 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.] JOHN POP HAM. 221 
 
 Hatton, the suspected party, who having bitterly in- 
 veighed against the deceased Earl, declared : 
 
 " That God by his just judgment had for his sins and 
 ingratitude taken from him his spirit of grace, and de- 
 livered him over to the enemy of his soul, who brought 
 him to that most dreadful and horrible end whereunto 
 he is come ; from which God of his mercy defend all 
 Christian people, and preserve the Queen's Majesty from 
 the treasons of her subjects, that she may live in all 
 happiness to see the ruin of her enemies abroad and at 
 home ; and that she and we. her true and loving sub- 
 jects, may be always thankful to God for all his blessings 
 bestowed upon us by her, the only maintenance of his 
 holy gospel among us." 1 
 
 Popham conducted the trials of all those charged as 
 being implicated in Babbington's conspiracy, which were 
 meant to prepare the public mind for the trial of the 
 unhappy Mary herself. I will give a little specimen of 
 these proceedings from Tilney s case. The charge against 
 him was, that he had planned the murder of Queen Eliza- 
 beth in her coach. The chief evidence consisted of a 
 confession of Abington, an avowed accomplice, in which 
 he said that " Tilney was disposed to kill the Queen ;" 
 and that Babbington, on his own trial, said the day 
 before, " Tilney would have had her Majesty set upon in 
 her coach." 
 
 Tilney. " No ! I said not so ; only at the Three Tuns, 
 in Newgate Market, I said ' it might be her Majesty 
 might be set upon in her coach,' and I said no more. 
 But that proves not I did consent." Popham, A. G. : 
 " You have said enough, if we had no other evidence 
 against you." Tilney: "How so?" Popham, A. G. : 
 11 Because you have confessed high treason ; your words 
 prove that you were devising on the manner of her 
 death." Tilney: "I tell you there is no such matter 
 intended in my words. If a servant which is faithful, 
 knowing where his master's money is, do say, ' If I would 
 be a thief I could rob my master, for in such a place his 
 
 J i St. Tr. Hi 1-1128. Yet these exhibitions do not seem to have had 
 much effect, for although I believe this charge of assassination to be un- 
 founded, Sir Walter Raleigh, in a letter soon after written to Sir Robert 
 Cecil, assumes it as a fact known to both of them, that the Earl of Nor- 
 thumberland was murdered by the contrivances of Hattin. Murdin, 8iz.
 
 222 REIGN OF QUEEN ELIZABETH. [1588. 
 
 money is,' this proves not that he would rob his master 
 albeit he used such words. And so, though I said, ' she 
 might be set upon in her coach,' it proveth not that I 
 assented to the same ; for I protest before God I never 
 intended any treason in my life." 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 master's money, do say, ' this way my 
 master's money may be taken,' and be in view when it 
 is taken, I say that he is 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. 1 
 
 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. 3 
 
 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. 8 
 
 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 for 
 it. Popham denounced it as a most seditious and libel- 
 
 1 St. Tr. 1127-1162. * Ibid. 1161-1228. J Ibid. 1229.
 
 1592.] JOHN POPHAM. 223 
 
 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. Pvpkam, 
 A. G. : " Methinks 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 ^2000.' 
 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 was an able man, and had done good service as 
 Attorney-General ; but there was an awkwardness, after 
 the stories that were circulated about his early exploits, 
 in 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 placed in such an exalted situ- 
 ation without having before served the crown, or given 
 1 St. Tr. 1263-1272.
 
 224 ItEIGN 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 puisnies 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 Engiand, 
 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- 
 able 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 with 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
 
 6oi.] JOHN POP HAM. 225 
 
 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 house on the Strand, and had planned an 
 insurrection in the City of London. She immediately or- 
 dered Chief Justice Popham 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 enemies, the 
 Chief Justice said calmly, " The Queen will do impartial 
 justice." He then, in the Queen's name, required the 
 forces collected in the court-yard to lay down their arms 
 and to depart, when a cry burst out of " Kill them ! kill 
 them !" The Earl rescued them from violence, but 
 locked them up in a dungeon, while he himself sallied 
 forth, in hopes of successfully raising the standard of re- . 
 bellion in the City of London. After being kept in soli- 
 tary confinement till the afternoon, Popham was offered 
 his liberty on condition that the Lord Keeper should re- 
 main behind as a hostage ; but the gallant Chief Justice 
 indignantly refused this offer, and declared that he would 
 share the fate of his friend. At length, upon news ar- 
 riving of Essex's failure in the City, they were both 
 libaratcd, and made good their retreat to Whitehall in a 
 boat. 
 
 The trial of Essex coming on before the Lord High 
 Steward and court of Peers, Popham was both assessor 
 and witness. First a written deposition, signed by him, 
 was read, and then he was examined vivd voce. He gave 
 his evidence with temperance and caution, affording a 
 striking contrast to the course vituperation of Coke, the 
 Attorney-General, and the ingenious sophistry of Bacon, 
 who seemed to thirst for the blood of his benefactor. 1 
 Popham, though so severe against common felons, 
 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 
 
 1 Camd. Eliz, vol. ii. 225. 321 ; t St. Tr. 1333-1360. 
 II5.
 
 126 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. J. " 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 malice 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. J. " Sir Christopher, I should like to know why 
 you stood at the great chamber 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
 
 1603.] JOHN POP HAM. 227 
 
 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. 1 
 
 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 was 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 road, whose knot 
 (otherwise not to be untied) Sir John cut asunder with 
 the sword of Justice." 3 
 
 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 : 
 
 1 I St. Tr. 1400-1452. J Aubrey, voL iii. p. 49*
 
 228 REIGN OF TAMES I. [1603. 
 
 Popham, C. J. " 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, although the 
 charge was high treason, it was sufficiently supported by 
 the uncorroborated evidence of a single witness ; and, 
 secondly, that there was 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 : 
 
 Popham, C. J.--" 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." Popham, 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." Popham, C. J. " Nay, we do not 
 conceive the law, but we know the law." Raleigh. 
 " The wisdom of the law of God 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 condemned if Daniel had not cried out, ' Will you 
 condemn an innocent Israelite without examination or 
 knowledge of the truth ?' . Remember it is absolutely
 
 1603.] JOHN POP HAM. 239 
 
 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." 
 Pop ham, C. y. " 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 ham, C. y. " 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 were 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 GUILTY being re- 
 corded, Lord Chief Justice Popham 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 
 high, lest he fall ; nor yet to creep too low, lest he be 
 trodden on. It was the poesy of the wisest and greatest 
 councillor in our time in England, ' /;/ media spatio medi- 
 ocria firma locantur. 1 You have been taken for a wise 
 man, and so have shown wit enough this day. Two 
 
 1 Posy, or motto, of Lord Keeper Bacon.
 
 230 REIGN OF JAMES I. [1606. 
 
 vices have lodged chiefly in you ; one is an eager am- 
 bition, the other corrupt covetousness. Your conceit 
 of not confessing anything is very inhuman and wicked. 
 My L'jrd of Essex, that noble earl that is gone, vrho, if 
 he had not been carried away by others, had lived in 
 honor to this day among us, confessed his offenses, and 
 obtained mercy of the Lord ; for I am verily persuaded 
 in my heart he died a worthy servant of God. This 
 world is the time of confessing, that we maybe absolved 
 at the day of judgment. 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 secth 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 see themselves must die, 
 they will think it best to have their fellow live, that he 
 may commit the like treason again, and so in some sort 
 seek revenge. Your case being thus, let it not grieve 
 you if I 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 you go out of the world to give 
 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 against 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 .jnto execution. 1 
 
 Guy Fawkes, and his associates implicated in the Gun- 
 powder Plot, were tried before Popham, but there was 
 such clear evidence against them, that no question 
 of law arose during the trial, and we are merely told 
 1 2 St. Tr. 1-62.
 
 1606.] JOHN POPHAM. 231 
 
 that " the Lcrd Chief Justice of England, after a grave 
 and prudent relation and defense of the laws made by 
 Queen Elizabeth against recusants, priests, and receivers 
 of priests, together with the several occasions, progresses, 
 and reasons of the same, and having plainly demon- 
 strated and proved that they were all necessary, mild, 
 equal, and moderate, and to be justified to all the world, 
 pronounced judgment." 1 
 
 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 the 
 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." Popkam, C. J. : Garnet, you are 
 Superior of the Jesuits ; and 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 you not stir 
 him up to go to the rebels and encourage them ? 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." Garnet : " 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, principal actors in this 
 matchless treason, and how he kept the two bulls to 
 prejudice the King, and to do other mischief in the 
 
 1 a St. Tr. 194.
 
 a 3 2 REIGN OF JAMES I. [1606. 
 
 realm ; and how he afterwards burnt them when he saw 
 the King peaceably come in, there being no hope to do 
 any good at that time." 
 
 This was only an interlocutory dialogue during the 
 trial, and no proof had been given of the facts to which 
 the Judge, who was supposed to be counsel for the pris- 
 oner, had referred. His summing up to the jury is not 
 reported ; and we are only told that, the verdict of 
 GUILTY being found, "Then the Lord Chief Justice, 
 making a pithy preamble of all the apparent proofs and 
 presumptions 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 zeal on this occasion, for the fate of 
 Garnet had excited deep interest all over Europe, and 
 the King himself, a large number of the nobility, and 
 many members of the House of Commons were present 
 at the trial. 
 
 Popham, who had heretofore retained wonderful vigor, 
 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 seventy-second year of his age. According to the 
 directions left in his will, he was buried at Wellington, 
 the place of his nativity. 
 
 I believe that no charge could justly be made against 
 his purity as a judge ; yet, from the recollection of his 
 early history, some suspicion always hung about him, 
 and stories, probably quite groundless, were circulated 
 to his disadvantage. Of these, we have a specimen in 
 the manner in which he was said to have become the 
 owner of Littlecote Hall, which in a subsequent age was 
 the 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." 5 The earliest narrative that I find 
 
 1 2 St. Tr. 217-358. 
 
 1 History of England, ii. 542. In the notes to the 5th canto of ROKEBY, 
 there is an interesting account of the appearance which the place now pre- 
 sents, and which is probably exactly the same which it presented when it 
 was occupied by Lord Chief Justice Popham : " Littlecote House stands 
 in a low and lonely situation. It Is an irregular building of great antiquity,
 
 1606.] JOHN POP HAM. 233 
 
 of this atrocity, and of Lord Chief Justice Popham's 
 connection with it, is by Aubrey : 
 
 " Sir Richard Dayrell, of Littlecott, in com. Wilts, 
 having got his lady's waiting, woman with child, when 
 her travell came sent a servant with a horse for a mid- 
 wife, whom he was to bring hoodwinked. She was 
 brought, and layd the woman ; but as soon as the child 
 was borne, she saw the knight take the child and mur- 
 ther it, and burn it in the fire in the chamber. She 
 having done her business was extraordinarily rewarded 
 for her paines, and went blindfold away. This horrid 
 action did run much in her mind, and she had a desire 
 to discover it, but knew not where 'twas. She consid- 
 ered with herself the time she was riding, and how many 
 miles she might have rode at that rate in that time, and 
 that it must be some great person's house, for the roome 
 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 knight was 
 brought to his tryall ; and, to be short, this Judge 
 had this noble house, parke, and manor, and (I thinke) 
 more, for a bribe to save his life. Sir John Popham 
 gave sentence according to lawe, but being a great per- 
 son and a favorite, he procured a noli prosequi" l 
 
 and was probably erected about the time of the termination of feudal war- 
 fare, when defense came no longer to be an object in a country mansion. 
 Many circumstances, however, in the interior of the house, seem appropriate 
 to feudal times. The hall is very spacious, floored with stones, and lighted 
 by large transom windows. Its walls are hung with old military accoutre- 
 ments that have long been left a prey to rust. At one end of the hall is a 
 range of coats of mail and helmets, and there is on every side abundance 
 of old-fashioned pistols and guns, many of them with matchlocks. Imme- 
 diately below the cornice hangs a row of leathern jerkins, made in the form 
 of a shirt, supposed to have been worn as armor by the vassals. A large 
 oak table, reaching nearly from one end of the room to the other, might 
 have feasted the whole neighborhood, and an appendage to one end of it 
 made it answer at other times for the good old game of shuffle-board. The 
 rest of the furniture is in a suitable style, particularly an arm-chair of cum- 
 brous workmanship, constructed of wood, with a high back and triangular 
 seat, said to have been used by Judge Popham in the reign of Elizabeth. In 
 one of the bedchambers, which you pass in going to the long gallery hung 
 with portraits in the Spanish dresses of the i6th century, is a bedstead with 
 blue furniture, which time has now made dingy and threadbare, and in the 
 bottom of one of the bed curtains you are shown a place where a small 
 piece has been cut out and sewn in again, serving to identify the same with 
 the horrible story belonging to it." 
 
 1 Aubrey, iii. 493. Subsequent writers have no better ground to proceed
 
 234 REIGN OF JAMES /. [1606. 
 
 Popham's portrait represented him as " a huge, 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 the coun- 
 try : " It was 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 horseman, who 
 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 the affair a strict secret, and therefore she must submit to be 
 blindfolded, and to be conducted in that condition to the bedchamber of 
 the lady. With 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 handage 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 the midwife, and the more piteous entreaties of 
 the mother, thrust it under the grate, and, raking the live coals upon it, soon 
 put an end to its life. The midwife, after spending some time in affording all 
 the relief in her power to the wretched mother, was told that she must 
 be gone. Her former conductor appeared, who again bound her eyes, and 
 conveyed her behind him to her own home ; he then paid her handsomely 
 and departed. The midwife was strongly agitated by the horrors of the 
 preceding night, and she immediately made a deposition of the fact before 
 a magistrate. Two 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 steps. Some suspicion fell upon one Dar- 
 rell, at that time the proprietor of Littlecote House and the domain around 
 it. The house was examined and identified by the midwife, and Darrell 
 was tried at Salisbury for the murder. By corrupting the judge he escaped 
 the sentence of the law, but broke his neck by a 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 beautiful ballad on this legend, but instead of a
 
 1606.] JOHN POPHAM. 235 
 
 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 10,000 
 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 
 6,000, 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 countrey 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 done, the friar is gone 
 
 Blindfolded as he came : 
 Next morning all in Littlecote Hall 
 
 Were weeping for their dame. 
 44 Wild Darrell is an altered man ; 
 
 The village crones can tell, 
 He looks pale as clay, and strives to pray, 
 
 If he hears the convent bell. 
 4 If prince or peer cross Darrell's way, 
 
 He'll beard him in his pride 
 If he meets a friar of orders gray, 
 
 He droops and turns aside." 
 1 Aubrey iii. 498.
 
 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 W fiat's to pay?'* 
 
 The family retained a remnant of the Chief Justice's 
 possessions at Littlecote for two or three generations, 
 and then became extinct. 
 
 The next Chief Justice of England affords a striking 
 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 BACON, 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 lawyer, because he 
 harbored no ideas or aspirations beyond the routine of 
 Westminster Hall because he did not mortify the van- 
 ity of the witty, or alarm the jealousy of the ambitious. 
 
 He was the younger son of a gentleman of small estate 
 in the Isle of Wight. I do not find any account of his 
 early education, and very little interest can now be felt 
 respecting it, although we catch so eagerly at any trait 
 of the boyhood of his rival, whom he despised." Soon 
 after he was called to the bar, by unwearied drudgery he 
 got into considerable practice ; and it was remarked that 
 he always tried how much labor he could bestow upon 
 
 1 Aubrey, iii. 494. 
 
 * He probably had not an academical education, as on the 7th of August, 
 1613, 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 Wood's Atk. Ox, 355.
 
 I594-] THOMAS FLEMING. 237 
 
 every case intrusted to him, while his more lively com- 
 petitors tried with how little labor they could creditably 
 perform their duty. 1 
 
 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. He wrote 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 jev/el, to show 
 off her beauty. He did what he thought would be still 
 more serviceable fc 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 
 sire 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 
 
 1 He appears, however, to have been long unknown beyond the precincts 
 of Westminster Hall. 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. Flemmynge of Lincoln's Inn"
 
 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. 1 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, 1st, 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 
 
 1 Tho. Fleming a statu et gradu servientis ad legem exonerates. T. R. 
 apud Westm. 5 Nov. Pat. 37 Eliz. p. 9. Dug. CAron. Ser. 99-
 
 1604.] THOMAS FLEMING. 239 
 
 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 as the arbitress of trade and commerce in the realm." 
 
 This pleased her exceedingly, and even softened her 
 ministers, insomuch that a promise was given to promote 
 Fleming as soon as possible, and to appoint Bacon in his 
 place. In those days there never existed the remotest 
 notion of dismissing an Attorney or Solicitor-General, any 
 more than a Judge ; for though they all alike held during 
 pleasure, till the accession of the House of Stuart the ten- 
 ure of all of them was practically secure. An attempt was 
 made to induce Fleming 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 Peryam, he was appointed Chief 
 Baron of the Exchequer. While he held this office, he 
 sat along with Lord Chief Justice Popham on the trial of 
 Guy Fawkes and the Gunpowder conspirators ; but he 
 followed the useful advice for subordinate judges on such 
 an occasion " to look wise, and 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 /.$. 6d., making icxr. per cwt. Bates, a Levant 
 merchant, who had imported a cargo of currants from
 
 2 4 o REIGN OF JAMES I. [1604. 
 
 Venice, very readily paid the parliamentary duty of 2s. 
 6d. 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 75. 6d.; so the question arose, whether he was by law 
 compellable to do so ? After arguments at the bar which 
 lasted many days, 
 
 Fleming, C. B., said ; " The defendant's plea in this 
 case is without precedent or example, for he alleges that 
 the imposition which the King has laid is ' indebit&, in- 
 juste- et contra leges Angliae imposita, and, therefore, he 
 refused to pay it.' The King, as is commonly said in 
 our books, cannot do ivrong ; and if the King seize any 
 land without cause, I ought to sue to him in humble 
 manner (huinillime supplicavit, &c.), and not in terms of 
 opposition. The matter of the plea first regards the 
 prerogative, and to derogate from that is a part most 
 undutiful in any subject. Next it concerns the 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 h 
 fortiori, may impose conditions on the importation or 
 exportation of his goods. To the King is committed 
 the government of the realm, and Bracton says, ' that 
 for his discharge of his office God hath given him the 
 power to govern.' This power is double ordinary and 
 absolute. The ordinary is for the profit of particular 
 subjects the determination of civil justice ; 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
 
 1604.] JAMES FLEMING. a^x 
 
 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 his 
 subjects are wronged by foreign princes, he sees that 
 they are righted. Ought he not, then, by the customs 
 he imposes, to enable himself to perform these duties? 
 The impost to the merchant is nothing, for those who 
 wish for his commodities must buy them subject to the 
 charge ; and, in most cases, it shall be paid by the 
 foreign grower 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 actuin, 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 
 regiSj and it is for the benefit of every subject that the 
 King's treasure should be increased." 
 
 He then at enormous length went over all the authori- 
 ties and acts of parliament, contending that they all 
 prove the King's power to lay what taxes he pleases on 
 goods imported, and he concluded by giving judgment 
 for the Crown. 1 
 
 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- 
 
 1 a St Tr. 371-394. 
 i 16.
 
 a43 REIGN OF JAMES 7. [1607 
 
 periment 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 judgment ought not to be 
 passed over in silence by those who pretend to narrate 
 our annals, for it was pronounced by a court of compe- 
 tent jurisdiction, and it was acted upon Tor years as set- 
 tling the law and constitution of the country. 
 
 King James declared that Chief Baron Fleming was 
 a judge to his heart's content. He had been somewhat 
 afraid when he came to England that he might hear such 
 unpalatable doctrines as had excited his indignation in 
 Buchanan's treatise " De jure regni apud Scotis," and 
 he expressed great joy in the solemn recognition that 
 he was an absolute sovereign. Our indignation should 
 be diverted from him and his unfortunate son, to the 
 base sycophants, legal and ecclesiastical, who misled them. 
 
 On the death of Popham, no one was thought so fit 
 to succeed him as Fleming, of whom it was always said 
 that " though slow, he was sure ;" and he became Chief 
 Justice of England the very same day on which Francis 
 Bacon mounted the first step of the political ladder, re- 
 ceiving the comparatively humble appointment of So- 
 licitor-General. 1 
 
 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 
 Hanover from that of Great Britain ; but if it should, 
 I do not think that Calvin's case could by any means be 
 considered a conclusive authority, being founded upon 
 such reasoning as that " if our King conquer a Christian 
 country, its laws remain till duly altered ; whereas if he 
 
 1 I Dug. Chron. Ser. 102.
 
 1613.] JAMES FLEMING. 243 
 
 conquer an infidel country, the laws are ipso facto extinct, 
 and he may massacre all the inabitants." 1 
 
 Lord Chief Justice Fleming took the lead in the pros- 
 ecution of the Countess of Shrewsbury, before the 
 Privy Council, on the charge of having refused to be 
 examined respecting the part she had acted in bringing 
 about a clandestine marriage in the Tower of London, 
 between the Lady Arabella Stuart, the King's cousin, 
 and Sir William Somerset, afterwards Duke of 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 position which might give greater weight to his 
 efforts on the popular side ; but of this there seemed no 
 prospect, for the subservient Fleming was still a young 
 man, and likely to continue many years the tool of the 
 Government. 
 
 In the midst of these gloomy anticipations, on the 
 1 5th day of October, 1613, the joyful news was spread 
 of his sudden death. I do not know, and I have taken 
 
 1 2 St. Tr. 559-769 ' 2 St. Tr. 765-778.
 
 244 REIGN OF JAMES I. [1613. 
 
 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. 1 
 He dwindled the more rapidly to insignificance from the 
 splendor of his immediate successor. 
 
 1 I have since learned (but it is not worth while to alter the text) that he 
 was buried at Stoneham in Hampshire ; that his will, dated 2ist July, 1610, 
 was proved soth October, 1613 ; that his eldest son intermarried with a 
 daughter of Sir Henry Cromwell, and that their descendants remained 
 seated at Stoneham for some generations. The Chief Justice appears to 
 have had a residence in the Isle of Wight. The name of " Sir Thomas 
 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 a 
 week. (Worsley's Isle of Wight, p. 223.)
 
 LORD COKE.
 
 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 
 greatest 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 ; >M that 1 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- 
 
 1 Words of Lord Bacon.
 
 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 CHIEF ; but, like 
 " Butler," " Taylor," and other names now ennobled, it 
 much more probably took its origin from the occupation 
 of the founder of the race at the period when surnames 
 were first adopted in England. Even in the reigns of 
 Elizabeth and James I., Sir Edward's name was fre- 
 quently spelled Cook. Lady Hatton, hig 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. 1 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 Lincoln'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, 1551-2, was born Ed- 
 
 1 It is amusing to observe the efforts made to disguise the names of trades 
 in proper names, by changing i into y, by adding a final e, and by doubling 
 consonants.
 
 1567.] EDWARD COKE. ,47 
 
 ward, their only son. He came into the world unex- 
 pectedly, at the 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. 1 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 " preproperously " 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- 
 
 1 " Prxidicabat miri quidpiam ejus Genitura ; Matrem ita subito juxta 
 focum intercipiens et in thalamum cui suberat non moveretur. Locum 
 ipsura ipse mihimet demonstravit." Spelm. Icenia sive N&rfokia, p. 150. 
 
 * Sir Edward, when Attorney-General, caused a monument to be erected 
 there to his memory, with an inscription beginning thus : 
 
 " Monumentum Koberti Coke de Mileham, in Comitatu Norfolcioe Armig. 
 Illustriss. Hospitii Lincolniensis quondam socii Primarii : Qui ex Wine- 
 frida uxore sua, Gul. Knightley filia, hos suscepit liberos : Edwardum 
 Coke, filium, Majestatis Regue Attornatuin General, &c. 
 
 " Obiit in Hospitio prsedicto 15 die Nov. A. I). 1561, Eliz. 4. Etat. suae 
 48."
 
 4 8 REIGN OF QUEEN ELIZABETH. [1572. 
 
 lege a few years after him, and, while still a boy, medi- 
 tated the reformation of philosophy, he seems never to 
 have carried his thoughts beyond existing institutions 
 or modes of thinking, and to have labored only to com- 
 prehend and to remember what he was taught. He had 
 a much better opinion than Bacon of the academical 
 discipline which then prevailed, and in after life he 
 always spoke with gratitude and reverence of his ALMA 
 MATER. Yet he left Cambridge without taking a de- 
 gree. 
 
 It might have been expected that he would now have 
 resided in his country mansion, amusing himself with 
 hunting, hawking, and acting as a Justice of the Peace. 
 But the family estates were charged with his mother's 
 jointure and portions for his seven sisters ; and, as he 
 was early imbued with ambition and a grasping love of 
 riches, he resolved to follow the profession of the law, 
 in which his father was prospering when prematurely 
 cut off. He therefore transferred himself to London, 
 not, like other young men of fortune, to finish his edu- 
 cation at an Inn of Court, frequenting fencing-schools 
 and theatres, but with the dogged determination to 
 obtain practice as a barrister, that he might add to his 
 paternal acres, and rise to be a great judge. 
 
 He began his legal studies at Clifford's Inn, an " Inn 
 of Chancery," where, for a year, he was initiated in the 
 doctrine of writs and procedure ; and on the 24th of 
 April, 1572, he was entered a student of the Inner 
 Temple, where he was to become familiar with the pro- 
 foundest mysteries of jurisprudence. He now steadily 
 persevered in a laborious course, of which, in our de- 
 generate age, we can scarcely form a conception. Every 
 morning he rose at three, in the winter season lighting 
 his own fire. He read Bracton, Littleton, the Year 
 Books, and the folio Abridgments of the Law, till the 
 courts met at eight. He then went by water to West- 
 minster, and heard cases argued till twelve, when pleas 
 ceased for dinner. After a short repast in the Inner 
 Temple Hall, he attended " readings " or lectures in the 
 afternoon, and then resumed his private studies till five, 
 or supper time. This meal being ended, the moots took 
 place, when difficult questions of law were proposed and
 
 1578.] EDWARD COKE. 249 
 
 discussed, if the weather was fine, in the garden by the 
 river side ; if it rained, in the covered walks near the 
 Temple Church. Finally, he shut himself up in his 
 chamber, and worked at his common-place book, in 
 which he inserted, under the proper heads, all the legal 
 information he had collected during the day. When 
 nine o'clock struck he retired to bed, that he might 
 have an equal portion of sleep before and after mid- 
 night. The Globe and other theatres were rising into 
 repute, but he never would appear at any of them ; nor 
 would he indulge in such unprofitable reading as the 
 poems of Lord Surrey or Spenser. When Shakspeare 
 and Ben Jonson came into such fashion, that even " sad 
 apprentices of the law " occasionally assisted in masques, 
 and wrote prologues, he most steadily eschewed all such 
 amusements ; and it is supposed that in the whole 
 course of his life he never saw a play acted, or read a 
 play, or was in company with a player. 
 
 He first evinced his forensic powers when deputed by 
 the students to make a representation to the Benchers 
 of the Inner Temple respecting the bad quality of their 
 commons in the hall. After laboriously studying the 
 facts and the law of the case, he clearly proved that the 
 cook had broken his engagement, and was liable to be 
 dismissed. This, according to the phraseology of the 
 day, was called "the Cook's Case" and he was said to 
 have argued it with so much quickness of penetration and 
 solidity of judgment, that he gave entire satisfaction to 
 the students, and was much admired by the Bench." ' 
 
 At this time the rules of the Inns of Court required 
 that a student should have been seven years on the 
 books of his society before he could be called to the bar,' 
 but our hero's proficiency in his legal studies was so won 
 derful, that the Benchers of the Inner Temple resolved 
 to make an exception in his favor, and on the 2Oth of 
 April, 1578, called .him to the bar when he was only of 
 six years' standing. 
 
 His progress in his profession was almost as rapid as 
 that of Erskine, 200 years afterwards ; but, instead of 
 
 * See Lloyd's Worthies, ii. 189. 
 
 J Formerly the period had been eight years : Dug. Or. Jus, 159. Now (I 
 
 think not wisely) it is reduced to three.
 
 5o REIGN OF QUEEN ELIZABETH. [1580. 
 
 being the result of popular eloquence, it arose from a 
 display of deep skill in the art of special pleading. He 
 himself has reported with much glee the case in which 
 he held his first brief. Lord Cromwell, son of the fa- 
 mous Cromwell, Earl of Essex, the grand ecclesiastical re- 
 former, had become leader of the Puritans, and wished 
 to abolish all liturgies. He accordingly introduced into 
 his parish church (Norlingham, in Norfolk), where he 
 expected to meet with no opposition, two unlicensed 
 preachers of the Genevese school, who denounced the 
 Book of Common Prayer as impious and superstitious. 
 The Reverend Mr. Denny, the vicar, remonstrating, 
 Lord Cromwell said to him, " Thou art a false varlet, and 
 I like not of thee." Upon which the vicar retorted, " It 
 is no marvel that you like not of me, for you like of men 
 who maintain sedition against the Queen's proceedings." 
 For these words Lord Cromwell brought an action of 
 SCAN. MAG. against the Vicar ; and the eclat with which 
 young Edward Coke had just been called to the bar hav- 
 ing reached his own country, he was retained as counsel 
 for the defendant. He drew a very ingenious plea of 
 justification, but on demurrer it was held to be insuffi- 
 cient. He then moved in arrest of judgment by reason 
 of a mis-recital in the declaration of the statute De Scan- 
 dalis Magnatum, on which the action was founded ; and, 
 after a very learned argument, he obtained the judgment 
 of the Court in his favor. 1 
 
 Soon after, he was appointed, by the Benchers of the 
 Inner Temple, Reader of Lyon's Inn, an Inn of Chancery 
 under their rule. Here he lectured to students of law 
 and attorneys, with much applause, and so spread forth 
 his fame, that crowds of clients sued to him for his coun- 
 sel.*" 
 
 He filled this office three years, and before the end of 
 that period he had placed himself at the very head of his 
 profession, by his argument in the most celebrated case 
 that has ever occurred respecting the law of real prop- 
 erty in England, a case now read with far more inter- 
 est, by true conveyancers, not only than MACBETH or 
 COMUS, but than " the Judgment on Ship Money" or 
 
 1 The Lord Cromwell's case, 4 Rep. 12 b. 
 Lloyd's State Worthies.
 
 1580.] EDWARD COKE. -51 
 
 " the Trial of the Seven Bishops." Edward Shelley, be- 
 ing seized in tail general, had two sons, Henry and Rich- 
 ard. Henry died, leaving a widow enceinte. Edward 
 suffered a recovery to the use of himself for life, remain- 
 der to the use of the heirs male of his body and the heirs 
 male of such heirs male, and died before his daughter-in- 
 law was delivered. Richard, the younger son, as the 
 only heir male in esse, entered. The widow then gave 
 birth to a son ; and the great question was, whether he 
 had a right to the estate rather than Richard his uncle ? 
 It was an acknowledged rule, that the title of one who 
 takes by purchase 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 
 
 1 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 in the 
 Exchequer Chamber. 4 Burr. 2579 ; Bl. Rep. 672 ; Dougl. 329.
 
 252 REIGN OF QUEEN ELIZABETH. [ijSa 
 
 land which came into the market in the county of Nor- 
 folk, he asked and obtained leave to purchase " one acre 
 more," whereupon he became proprietor of the great 
 " CASTLE ACRE " estate, of itself equal to all his former 
 domains. 
 
 When he had been four years at the bar, he made a 
 most advantageous marriage, 1 being the preferred suitor 
 of Bridget 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 30,000. 
 Although he was dreadfully punished when he entered 
 the state of wedlock a second 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 1586, 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 READER (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. 
 
 1 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 : 
 " 1582. Edward Cooke, Esq., and Bridget Paston, the daughter of John 
 Paston, Esq., were married the I3th of August, the year aforesaid." 
 Johnson, I. 66. 
 
 She was of an ancient family in Norfolk, and nearly connected with 
 the noble families of Rutland, Shrewsbury, Westmoreland, and Abergav- 
 enny.
 
 I593-] EDWARD COKE. 253 
 
 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 difficulty affecting the rights of the Crown. 
 A grand move in the law took place in the month 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 4ist 
 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 
 Francis 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 
 which 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 iii a note-book 
 
 1 1 St. Tr. 1315.
 
 .54 REIGN OF QUEEN ELIZABETH. [1593. 
 
 still extant, " 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 being thought 
 that his great legal knowledge would supply the defect 
 of parliamentary experience. When presented at the 
 bar for the royal approbation, he thus began his address 
 to Elizabeth : 
 
 " As in the heavens a star is but opacum corpus until it 
 hath received light from the sun, so stand I corpus opa- 
 cum, a mute body, until your Highnesa's bright shining 
 wisdom hath looked upon me, and allowed me." He 
 goes on to "disqualify" himself at great length, deplor- 
 ing the unlucky choice of the Commons : " Amongst 
 them," says he, " are many grave, many learned, many 
 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 ' neglect a 
 frugi eleguntur folia, amongst so 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 appear 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 you, but much thanketh the 
 Lower House, and commendeth their discretion in mak- 
 ing so good a choice and electing so fit a man. Where- 
 fore now, Mr. Speaker, proceed 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
 
 I593-] EDWARD COKE. 255 
 
 had always belonged to the sovereigns of England ; and 
 concluded by praying for liberty of speech, and the other 
 privileges of the Commons. The Lord Keeper answered 
 by the Queen's command : 
 
 " Liberty of speech is granted you, but you must 
 know what privilege you have ; not to speak every one 
 what he listeth, or what cometh in his brain to utter, 
 but your privilege is aye or no. Wherefore, Mr. Speaker, 
 her Majesty's pleasure is, that if you perceive any idle 
 heads which will meddle with reforming the Church and 
 transforming the commonwealth, and do exhibit any 
 bills to such purpose, you receive them not until they 
 be viewed and considered by those who it is fitter 
 should consider of such things and can better judge of 
 them." 
 
 In spite of this caution, a member of the name of 
 Morris produced a bill in the House of Commons, " for 
 reforming abuses in the ecclesiastical courts, and to pro- 
 tect the clergy from the illegal oaths they were called 
 upon to take by the Bishops." Thereupon, Mr. Speaker 
 Coke said, " In favor and free love above my merits or 
 desert you have elected me, which should bind me to do 
 all my best service, and to be faithful towards you. This 
 bill is long, and if you put me presently to open it I 
 cannot so readily understand it as I should. Wherefore, 
 if it please you to give me leave to consider it, I protest 
 I will be faithful, and keep it with all secresy." The 
 House agreed to this proposal, and adjourned, it being 
 now near mid-day. 
 
 Mr. Speaker immediately posted off to court, pretend- 
 ing afterwards that he had been sent for by the Queen, 
 and next morning declared from the chair that, although 
 no man's eye but his own had seen the bill, her Majesty 
 had desired him to say, " she wondered that any should 
 attempt a thing which she had expressly forbidden ;" 
 wherefore, with this she was highly displeased. " And," 
 added he, "upon my allegiance I am commanded, 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.
 
 256 REIGN OF QUEEN ELIZABETH. [1593 
 
 One morning during the session, Coke, the Speaker, 
 not appearing 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 
 then received 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 enim parvis componere magna solebam. The little 
 bees have but one governor, whom they all serve ; he is 
 their king; he is placed in the midst of their habitation, 
 ut in tutissima turri. They forage abroad, working 
 honey from every flower to bring to their king. ' Igna- 
 vum fucos pecus h prasepibus arcent! The drones they 
 drive away out of their hives, ' non habentes aculeos." 
 And whoso assails their king in him ' immittunt aculeos, 
 et tamen rex ipse est sine acuelo! 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 office 
 
 1 Sir Simon d'Ewes : Journal, 470. 
 I Parl. Hist. 858-893.
 
 1 5 94-] EDWARD COKE. 257 
 
 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 100; and he again devoted 
 himself to his- professional avocations, which had been 
 considerably interrupted, although by no means discon- 
 tinued, while he acted as Speaker. 
 
 Things went on very smoothly 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 fame. 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- 
 ister, 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 
 
 1 Nares' Life of Burleigh, iii. 436. 
 
 I 17
 
 858 REIGN OF QUEEN ELIZABETH. [1600 
 
 Elizabeth, 1 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, whic.h 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 VI. 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- 
 
 1 1597 and 1601. * 3 Inst. 35.
 
 i6co.J EDWARD COKE. 259 
 
 tending to the crown, only wished to bring 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 ' ROBERT THE LAST,' that of the kingdom 
 thought to be ' ROBERT THE FIRST.' ' 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. 1 
 
 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 2/th 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. 
 
 1 St Tr. 1333-1384.
 
 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 the nephew and heir of Lord Chan- 
 cellor Hatton. Her first husband dying in 1597,33 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 ; ancf his suit was not at all favored by her 
 relations, the Cecils, who were jealous of his superior 
 abilities, and wished to keep him down, that there might 
 be no political rival to Robert, the Treasurer's younger 
 son, now filling the office of Secretary of State, after- 
 wards Earl of Salisbury, and prime minister to James I. 
 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 father 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 Whitehall, in 1607, she was one of the fifteen court 
 beauties who, with the Queen, performed in the show. Nichol's Progresses, 
 ToL ii. p. 174, 175.
 
 1598-! EDWARD COKE. 261 
 
 out support, would probably soon be sacrificed. He re- 
 solved to declare himself her suitor, in spite of all objec- 
 tions and difficulties. 
 
 Soon afterwards died the great Lord Treasurer 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 Bacon 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. He 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 marriage 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 just thundered 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 Majesty's pleasure nor 
 were careful of their credit, marrying conples in private 
 houses, 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, the 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. 1 
 
 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 excommunication " 
 
 1 Strype's Life of Whitgift, p. 522.
 
 262 REIGN OF QUEEN ELIZABETH. [1598. 
 
 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 Bathwell the Rector of Okeover, the priest who 
 had performed the ceremony. A libel was exhibited 
 against them, concluding for the " greater 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 lawyer, devoted to his briefs, and hating all gayety 
 and expense. She delighted above all things in hawk- 
 ing, in balls and in masques : though strictly virtuous, 
 she was fond of admiration, and, instead of conversing 
 with grave judges and apprentices of the law, she liked 
 to be surrounded by young gallants who had served 
 under Sir Philip Sydney and the Earl of Essex, and could 
 repeat the verses of Spenser and Lord Surrey. She
 
 1603.] EDWARD COKE. a6 3 
 
 would never even take her second husband's name, for 
 in doing so she must have been contented with the home- 
 ly appellation of " Mrs. Coke," or " Cook" as she wrote 
 it, for it was not till the following reign that he reached 
 the dignity of knighthood. 
 
 Within a year after their marriage they had a daugh- 
 ter, about whom we shall have much to relate ; but after 
 her birth they lived little together, although they had 
 the prudence to appear to the world to be on decent 
 terms till this heiress was marriageable, when their 
 quarrels disturbed the public peace were discussed in 
 the Star Chamber and agitated the Court of James I. 
 as much as any question of foreign war which arose dur- 
 ing the whole course of his reign. 
 
 In the last illness of Queen Elizabeth, Coke did not, 
 like some of her other courtiers, open a communication 
 with her successor ; but he always maintained the right 
 of the Scottish line, notwithstanding the will of Henry 
 VIII., which gave a preference to the issue of the 
 Duchess of Suffolk, and he assisted Sir Robert Cecil in the 
 measures taken to secure the succession of the true heir. 
 
 Coke prepared the dry lawyer-like proclamation of the 
 new monarch, which was adopted in preference to the 
 rhetorical one offered by Bacon, declaring " that no 
 man's virtue should be left idle, unemployed, or unre- 
 warded." The Attorney General was included in the 
 warrant under the sign manual for continuing in office 
 the ministers of the Crown, and on the 22nd of April 
 his patent was renewed under the great seal. He did not 
 show the same impatience as his rival to gain the King's 
 personal notice, and he was not introduced into the 
 royal presence for several weeks. At last, at a grand 
 banquet, given in the palace at Greenwich to the princi- 
 pal persons of the kingdom, James, with many civil 
 speeches, conferred upon him the honor of knighthood, 
 along with Lee the Lord Mayor of London, and Crook 
 the Recorder. To his credit it should be remembered, 
 that he at no time strove to gain the favor of the great, 
 that he never mixed in court intrigues, and that he 
 was contented to recommend himself to promotion by 
 what he considered to be the faithful discharge of his 
 official duties.
 
 264 REIGN OF JAMES I. [1603. 
 
 His first appearance as public prosecutor in the new 
 reign was on the trial, before a special commission at 
 Winchester, of Sir Walter Raleigh, charged with high 
 treason by entering into a plot to put the Lady Arabella 
 Stuart on the throne ; and here, I am sorry to say that, 
 by his brutal conduct to the accused, he brought per- 
 manent disgrace upon himself and upon the English 
 bar. He must have been aware that, notwithstanding 
 the mysterious and suspicious circumstances which sur- 
 rounded this affair, he had no sufficient case against the 
 prisoner, even by written depositions and according to 
 the loose notions of evidence then subsisting ; yet he 
 addressed the jury, in his opening, as if he were scan- 
 dalously ill-used by any defense being attempted. While 
 he was detailing the charge, which he knew could not be 
 established, of an intention to destroy the King and his 
 children, at last the object of his calumny interposed, 
 and the following dialogue passed between them : 
 
 Raleigh : " You tell me news I never heard of." At- 
 torney General : " Oh, sir, do I ? I will prove you the 
 notoriest traitor that ever held up his hand at the bar 
 of any court." R. : "Your words cannot condemn 
 me ; my innocency is my defense. Prove one of these 
 things wherewith you have charged me, and I will con- 
 fess the whole indictment, and that I am the horriblest 
 traitor that ever lived, and worthy to be crucified with a 
 thousand thousand torments." A. G.: " Nay, I will prove 
 all : thou art a monster : thou hast an English face, but 
 a Spanish heart." R. : " Let me answer for myself." 
 A.G.: "Thou shalt not." R. : "It concerneth my 
 life." A. G. : " Oh ! do I touch you ?" 
 
 The proofless narrative having proceeded, Raleigh 
 again broke out with the exclamation, " You tell me 
 news, Mr. Attorney !" and thus the altercation was re- 
 newed : 
 
 A. G. : " Oh, Sir, I am the more large because I know 
 with whom I deal ; for we have to deal to-day with a 
 man of wit. I will teach you before I have done." R. : 
 " I will wash my hands of the indictment and die a true 
 man to the King." A. G.: "You are the absolutest 
 traitor that ever was." R. : " Your phrases will not 
 prove it." A. G. (in a tone of assumed calmness and ten-
 
 1603.] EDWARD COKE. 265 
 
 derness) : " You, my masters of the jury, respect not the 
 wickedness and hatred of the man ; respect his cause : if 
 he be guilty, I know you will have care of it, for the 
 preservation of the King, the continuance of the Gospel 
 authorized, and the good of us all." R. : " I do not 
 hear yet that you have offered one word of proof against 
 me. If my Lord Cobham be a traitor, what is that to 
 me?" A. G. : " All that he did was by thy instigation, 
 .thou viper ; for I thou thee, thou traitor." 1 
 
 The depositions being read, which did not by any 
 means make out the prisoner's complicity in the plot, he 
 observed, 
 
 "You try me by the Spanish Inquisition if you pro- 
 ceed only by circumstances, without two witnesses." 
 A. G. : " This is a treasonable speech." R. : " I appeal 
 to God and the King in this point, whether Cobham's 
 accusation is sufficient to condemn me ?" A. G. : " The 
 King's safety and your clearing cannot agree. I protest 
 before God I never knew a clearer treason. Go to, I will 
 lay thee upon thy back for the confidentest traitor that 
 ever came at a bar." 
 
 At last, all present were so much shocked that the 
 Earl of Salisbury, himself one of the Commissioners, re- 
 buked the Attorney General, saying, " Be not so im- 
 patient, good Mr. Attorney ; give him leave to speak." 
 A. G. : " If I may not be patiently heard, you will en- 
 courage traitors and discourage us. I am the King's 
 sworn servant, and must speak." The reporter relates 
 that " here Mr. Attorney sat down in a chafe, and would 
 speak no more until the Commissioners urged and en- 
 treated him. After much ado he went on, and made a 
 long repetition of all the evidence, and thus again ad 
 dressing Sir Walter: 'Thou art the most vile and exe 
 crable traitor that ever lived. I want words sufficient to 
 express thy viprous treasons.' ' 
 
 Of course there was a verdict of guilty ; but public 
 feeling was so outraged, that the sentence could not then 
 
 1 Sir Toby, in giving directions to Sir Andrew for his challenge to Viola, 
 is supposed to allude to this scene : 
 
 " If thou thons't him some thrice, it shall not be amiss ; and as many 
 lies as will lie in thy sheet of paper. Let there be gall enough in thy ink. ' 
 Twelfth Nig/it, act. iii. sc. 2.
 
 266 REIGN OF JAMES I. [1603. 
 
 be carried into execution. He languished many years 
 in prison, and after his unfortunate expedition to 
 Guiana, the atrocity was perpetrated of ordering 
 him to be hanged, drawn, and quartered on this illegal 
 judgment. 
 
 Sir Edward Coke's arrogance to the whole bar, and to 
 all who approached him, now became almost insuffer- 
 able. His demeanor was particularly offensive to his 
 rival, who, although without office, excited his jealousy 
 by the splendid literary fame which he had acquired, 
 and by the great favor which he enjoyed at Court. Ba- 
 con, as yet, was only King's counsel, all his intrigues for 
 promotion having proved abortive. He has left us a 
 very graphic account of one of his encounters with the 
 tyrant of Westminster Hall near the close of the pre- 
 ceding reign. Having to make a motion in the Court 
 of Exchequer, which, it seems, he knew would be dis- 
 agreeable to Coke, he says 
 
 " This I did in as gentle and reasonable terms as 
 might be. Mr. Attorney kindled at it, and said, ' Mr. 
 Bacon, if you have any tooth against me, pluck it out ; 
 for it will do you more hurt than all the teeth in your 
 head will do you good.' I answered coldly in these very 
 words, ' Mr. Attorney, I respect you ; I fear you not ; 
 and the less you speak of your own greatness, the more 
 I will think of it.' He replied, ' I think it scorn to stand 
 upon terms of greatness towards you, who are less than 
 little less than the least,' and other such strange light 
 terms he gave me, with that insulting which cannot be 
 expressed. Herewith stirred, yet I said no more but 
 this, ' Mr. Attorney, do not depress me so far ; for I 
 have been your better, and may be again when it please 
 the Queen.' With this he spake, neither I nor himself 
 could tell what, as if he had been born Attorney General ; 
 and, in the end, bade me ' not meddle wth the Queen's 
 business, but with mine own, and that I was unsworn,' 
 &c. I told him, ' sworn or unsworn was all one to an 
 honest man, and that I ever set my service first and my- 
 self second, and wished to God that he would do the 
 like.' Then he said ' it were good to clap a cap. utla- 
 gatum upon my back.' To which I only said ' he could 
 not, and that he was at a fault, for that he hunted on an
 
 1603] EDWARD COKE. 267 
 
 old scent.' ' He gave me a number of disgraceful words 
 besides ; which I answered with silence, and showing 
 that I was not moved with them." a 
 
 The enmity between them being still further exasper- 
 ated by subsequent conflicts, Bacon at length wrote the 
 following letter of seeming defiance, but couched in 
 terms which it was thought might soften Sir Edward, or, 
 at any rate, induce him to think it for his advantage to 
 come to a reconciliation : 
 
 " Mr. Attorney, 
 
 " I thought it best, once for all, to let you know in 
 plainness what I find of you, and what you shall find of 
 me. You take to yourself a liberty to disgrace and dis- 
 able my law, my experience, my discretion : what it 
 pleaseth you, I pray think of me : I am one that knows 
 both mine own wants and other men's ; and it may be 
 perchance, that mine mend, and others' stand at a stay. 
 And surely I may not endure in public place to be 
 wronged without repelling the same, to my best advan- 
 tage to right myself. You are great, and therefore have 
 the more enviers, which would be glad to have you paid 
 at another's cost. Since the time I missed the Solicitor's 
 place (the rather I think by your means), I cannot ex- 
 pect that you and I shall ever serve as Attorney and 
 Solicitor together ; but either to serve with another on 
 your remove, or to step into some other course, so as I 
 am more free than I ever was from any occasion of un- 
 worthily conforming myself to you more than general 
 good manners or your particular good usage shall pro- 
 voke ; and if you had not been short-sighted in your 
 own fortune (as I think), you might have had more use 
 of me. But that side is passed. I write not this to show 
 my friends what a brave letter I have written to Mr. At- 
 torney. I have none of those humors ; but that I have 
 written it to a good end, that is, to the more decent car- 
 riage of my master's service, and to our particular better 
 understanding one of another. This letter, if it should 
 be answered by you in deed and not in word, I suppose 
 it will not be worse for us both, else it is but a few lines 
 
 1 This is supposed to allude to proctis of outlawry against Bacon at UM 
 suit of a usuicr. 
 
 * Bacon's Works, ed. 1 3 19, vol. vL p. 46.
 
 268 REIGN OF JAMES I. [1606. 
 
 lost, which for a much smaller matter I would have 
 adventured. So this being to yourself, I for my part 
 rest," &c.' 
 
 But Coke was inflexible, and, as long as he remained 
 at the bar encouraging men who might be useful, with- 
 out being formidable, to him would bear " no brother 
 near his throne." 
 
 The breaking out of the Gunpowder treason enhanced, 
 if possible, his importance and his superciliousness. The 
 unraveling of the plot was entirely intrusted to him. 
 He personally examined, many times, Guy Fawkes and 
 the other prisoners apprehended when the plot was dis- 
 covered, but it is believed that they were not in general 
 subjected to the rack, as they did not deny their design 
 to blow into the air the King and all his court, with all 
 the members of both houses of parliament.* 
 
 When the trial came -on, Coke opened the case to the 
 jury at enormous length, dividing his discourse, after the 
 manner of the age : " The considerations concerning the 
 powder treason," said he, " are in number eight : that is 
 to say, i. The persons by whom ; 2. The persons against 
 whom; 3. The time when; 4. The place where ; 5. The 
 means ; 6. The end ; 7. The secret contriving ; and, 
 lastly, the admirable discovery thereof." Under the 
 first head, after recapitulating all the plots, real or im- 
 aginary, to overturn the Protestant government, which 
 the Roman Catholics were supposed to have entered 
 into since the Reformation, he boasted much of the 
 clemency of Queen Elizabeth, averring that " in all her 
 Majesty's time, by the space of forty-four years and up- 
 wards, there were executed in all not thirty priests, nor 
 above five receivers and harborers of them." Perhaps 
 
 1 Bacon's Works, iv. 570. 
 
 * Guy, however, was made to " kiss the Duke of Exeter's daughter," for 
 he long refused to say more than that " his object was to destroy the parlia- 
 ment as the sole means of putting an end to religious persecution." A 
 Scottish nobleman having asked him " for what end he had collected so 
 many barrels of gunpowder ?" he replied, " To blow the Scottish beggars 
 hack to their native mountains ! ! !" Two fac-similes of his signature are 
 to be seen in Jardine's Criminal Trials : the first in a good bold hand, be-' 
 fore torture; the second after torture, exhibiting the word " Guido" in an 
 almost illegible scrawl, and two ill-formed strokes in place of his surname, 
 apparently having been unable to hold the pen any longer. Jardine's 
 Chm. Tr., p. 17
 
 1604.] EDWARD COKE. 269 
 
 his style of oratory may best be judged of by the con- 
 clusion of his commentary upon the seventh head : 
 
 " S. P. Q. R. was sometimes taken for these words, 
 Senatus populusque Romanus, the senate and people 
 of Rome ; but now they may truly be expressed thus, 
 Stultus populus quczrit Romam, a foolish people that run- 
 neth to Rome. And here I may aptly narrate the apo- 
 logue or tale of the cat and the mice. The cat having a 
 long time preyed upon the mice, the poor creatures at 
 last, for their safety, contained themselves within their 
 holes ; but the cat, finding his prey to cease, as being 
 known to the mice that he was indeed their enemy and' 
 a cat, deviseth this course following, viz., changeth his 
 hue, getting on a religious habit, shaveth his crown, walks 
 gravely by their holes, and yet perceiving that they 
 kept their holes, and looking out suspected the worst, 
 he formally and father-like said unto them, ' Quod 
 fueram non sum, /rater, caput, aspice tonsum ! Oh, 
 brother ! I am not as you take me for, no more a cat ; see 
 my habit and shaven crown !' Hereupon some of the 
 more credulous and bold among them were again, by this 
 deceit, snatched up ; and therefore, when afterwards he 
 came as before to entice them forth, they would come 
 out no more, but answered, ' Cor tibi restat idem, vix tibi 
 prczsto fidem. Talk what you can, we will never believe 
 you ; you have still a cat's heart within you. You do 
 not watch and pray, but you watch to prey' And so have 
 the Jesuits, yea, and priests too ; for they are all joined in 
 the tails like Samson's foxes. Ephraim against Manasses, 
 and Manasses against Ephraim ; and both against Judah." 
 
 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 
 Monteagle, saying, " thoughe theare be not the appear- 
 ance of ani stir, yet i saye they shall receyve a terribel 
 blowe this parleament, and yet they shall not seie who 
 hurts them," the Council before whom it was laid, 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 his circular giving the first 
 account of it, said, " We conceived that it could not by 
 any other way be like to be attempted than with powder,
 
 * 7 o REIGN OF JAMES I. [1606. 
 
 while the King was sitting 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 
 bloiv." 
 
 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, I 
 shall go more cheerfully to the gallows.' Whereunto 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 
 
 1 Winwood, ii. 171. 2 St. Tr. 159-195
 
 1606.] EDWARD COKE. 271 
 
 of having devised the 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 Edward 
 the Confessor as well as of William the Conqueror, and 
 how he was descended from the sovereign who had 
 united the white and the red roses. " But," exclaimed 
 the orator, " a more famous union is, by the goodness of 
 the Almighty, perfected in his Majesty's person of divers 
 lions two famous, ancient, and renowned kingdoms, not 
 only without blood or any opposition, but with such an 
 universal acclamation and applause of all sorts and 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 varies sine pugna unire leones, 
 Sanguine quam 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 JD's, as Dis-
 
 272 REIGN OF JAMES I. [1606. 
 
 simulation, deposing of princes, disposing of kingdoms, 
 Z?aunting and deterring of subjects, and destruction." 
 Then he wittily and tastefully concluded : " Qui cum 
 JCSH itis, non itis cum Jesuitis, 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 seeth it shall say ' this hath God done,' 
 for they shall perceive that it is his work." ' 
 
 The prisoner was found guilty ; but, giving credit to 
 all the depositions and confessions, they did not prove 
 upon him a higher offense than misprision 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 occasions, although he averred to the 
 last that, instead of consenting to it, he had attempted 
 to dissuade Fawkes and the other conspirators from 
 persisting in it. 
 
 This was the last prosecution in which Coke appeared 
 before the public as Attorney General. He had filled 
 the office 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 Hall, 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, 
 1 2 St. Tr. 217-353.
 
 1606.] EDWARD COKE. 
 
 273 
 
 were enormous, 1 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 office of Attorney General and 
 became Chief Justice of the Court of Common Pleas. 
 As a preliminary, he took upon himself the degree of 
 Sergeant-at-law ; and he gave rings with the motto, 
 " Lex est tutissima cassis." 2 Mr. Coventry, afterwards 
 Lord Keeper, whom he had much patronized, acted as 
 his PONY.* 
 
 1 The salary of Attorney-General was only 81 6s. 8</., but his official 
 emoluments amounted to .7000 a year, Coke's private practice, besides, 
 must have been very profitable to him. 
 
 8 Dug. Or. Jur. p. 102. 
 
 3 I have been favored, by a learned and witty friend of mine, with the 
 following " Note on the Sergeant's Pony. When the utter barrister is ad- 
 vanced ' ad gradum servientis ad legem,' he gives, as the reporters of all the 
 courts never omit to record, a ring with a motto ; a posy, sometimes more 
 or less applicable to the donor or to the occasion, sometimes to neither. 
 These rings are presented to persons high in station (that for the Sovereign 
 is received by the hands of the Lord Chancellor), and to all the dignitaries 
 of the law, by a barrister whom the Sergeant selects for that honorable ser- 
 vice, and who is called his ' Pony.' Why ? Simply because the offering he 
 brings is the honorarium, compounding, or composition, which is paid by 
 the learned graduate upon his degree of sergcant-at-law. IGNORAMUS (act 
 ii. scene 7) enters with money in a bag. Ignor. ' Hie est legem pone. Hie 
 sunt sexcentae coronas pro meo caro corde Rosabelia.' Upon which pas- 
 sage, says the learned commentator Hawkins : ' Legem pone. This ap- 
 pears to have been a cant term for ready money." Dr. Heylin, in his 
 ' Voyage of France,' p. 292, speaking of the university of Orleans, ' In the 
 bestowing of their degrees here they are very liberal, and deny no man that 
 is able to pay his fees. Legem ponere is with them more poweiful than 
 legem dicere ; and he that hath but his gold ready, shall have a sooner 
 despatch than the best scholar upon the ticket.' In the translation of 
 Rabelais by Ozell, c. xii. book 4, the phrase ' En payant,' is rendered ' the 
 Legem Pone.' ' They were all at our service for the Legem Pone.' And 
 finally, Tusser, in his ' Good Husbandly Lessons worthy to be followed by 
 such as will thrive,' prefixed to his ' Four Hundred Points of Good Hus- 
 bandry,' recommends punctuality in payment of debts by the following 
 distich : 
 
 4 Use Legem Pone to pay at thy day, 
 
 But use not " Oremus " for often delay.' 
 
 In the language, therefore, of a sergeant's posy, ' Ex oetjuo et bono,' I 
 should say that, regard being had to the valuable consideration of which he 
 is the bearer, his pony's derivation savors more of the bonus than Ui* 
 equus" 
 
 I 18
 
 374 REIGN OF JAMES I. [1606. 
 
 " 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.'" 
 
 1 Cro. Jac. 125. Ibid. voL iii. in trod. p. 7.
 
 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. But 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 Parliament. 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-
 
 276 RETGN OF JAMES I, [1606-1613. 
 
 ness for them than he had been accustomed to do for 
 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 away 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 III. and Henry V. recovering the French 
 provinces which had belonged by right of birth to Wil- 
 liam the Conqueror and Henry II., 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. 
 
 1 Life and Reign of King James, p. 41
 
 i,6 1 1.] EDWARD COKE. 277 
 
 A plan was now going forward systematically to carry 
 into effect the notion which James entertained, that he 
 was entitled to rule in England as an absolute sover- 
 eign. One of the engines chiefly relied upon for success 
 was the Court of HIGH COMMISSION. This had been 
 established, at the accession of Queen Elizabeth, 1 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 CHARTA ; and that, if the pursuivant 
 should be killed in the attempt, the party resisting him 
 would not be guilty of murder. 8 The authority of the 
 Court of Common Pleas 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. 8 
 
 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.* 
 
 1 Stat. I Eliz. c. I. * 12 Rep. 49. 
 
 s Langdale's case, 12 Rep. 50. 58 ; Sir William Chauncey's case, ib. 82. 
 4 12 Rep. 88 
 
 An illegal attempt to revive it by James II. was one of the causes of 
 he P evolution.
 
 278 REIGN OF JAMES I. |x6n. 
 
 The High Commission being silenced for a time, 
 Archbishop Bancroft suggested the notable expedient 
 of " the King judging whatever cause he pleased in his 
 own person, free from all risk of prohibition or appeal." 
 Accordingly, on a Sunday, the. King summoned all the 
 Judges before him and his Council, at Whitehall, to 
 know what they could say against this proposal. The 
 Archbishop thus began : 
 
 "The Judges are but the delegates of your Majesty, 
 and administer the law in your name. What may be 
 done by the agent may be done by the principal ; there- 
 fore your Majesty may take what causes you may be 
 pleased to determine from the determination of the 
 Judges, and determine them yourself. This is clear in 
 divinity; such authority, doubtless, belongs to the King 
 by the Word of God in the Scriptures." 
 
 Coke, C. J. (all the other Judges assenting) : " By the 
 law of England, the King 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 justice. The form of giving judgment is 
 idea consideration est per curiam ; so the Court gives the 
 judgment. Richard III. and Henry VII. sat in the Star 
 Chamber, but this was to consult with the justices upon 
 certain questions proposed to them, and not in judicio. 
 So in the King's Bench he may sit, but the Court gives 
 the judgment. Ergo, the King cannot take any cause out 
 of any of his courts, and give judgment upon it himself. 
 No king since the Conquest has assumed to himself to 
 give nny judgment in any cause whatsoever which con- 
 cerned the administration of justice within this realm. 
 So the King cannot arrest any man, as laid down in the 
 Year Book i H. VII. 7. 4, ' for the party cannot have 
 remedy against the King' So if the King give any judg- 
 ment, what remedy can the party have? 1 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- 
 
 1 So Markham, C. J., told Edward IV. that " the King cannot arrest a 
 man for suspi ;ion of treason or felony, as others his lieges uiay."
 
 4 6i2.] EDWARD COKE. 279 
 
 vided by Magna Charta, and other statutes duly passed 
 and assented to by the Crown, ' Quod tarn majores quam 
 minores justitiam habeant et recipiant in CURIA Domini 
 Regis. 1 By 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 thing done to the contrary shall be void. From a 
 roll of parliament in the Tower of London, 17 Richard 
 II., it appears that a controversy of land between the 
 parties having been heard by the King, and sentence 
 having been given, it was reversed for this, that the 
 matter belonged to the common law." 
 
 King James : " My Lords, I always thought, and by 
 my 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. J,: " True it is, please your Majesty, that 
 God has endowed your Majesty with excellent science 
 as well as great gifts of nature ; but your Majesty will 
 allow me to say, with all reverence, that you are not 
 learned in the laws of this your realm of England, and 
 I crave leave to remind your Majesty that causes which 
 concern the life or inheritance, or goods or fortunes, of 
 your subjects, are not to be decided by natural reason, 
 but by the artificial reason and judgment of law, which 
 lav/ is an art which requires long study and experience 
 before that a man can attain to the cognizance of it. 
 The law is the golden met-wand and 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." 
 
 King James (in a great rage) : " Then I am to be under 
 the law which it is treason to affirm." 
 
 Coke, 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 lawyers for the general granting of prohibi- 
 
 1 12 Coke, 63.
 
 280 REIGN OF JAMES I [1612. 
 
 tions. I heard that the Lord Coke, amongst other of- 
 fensive speech, should say to his Majesty that his High- 
 ness was defended by his laws ; at which saying, and 
 with other speech then used by the Lord Coke, his 
 Majesty was very much offended, and told him that he 
 spake foolishly, and said that he was not defended by his 
 laws, but by God ; and so gave the Lord Coke, in other 
 words a very sharp reprehension both for that and other 
 things, and withal told him that Sir Thomas Compton, 
 the Judge of the Admiralty Court, was as good a 
 Judge." 1 
 
 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 b^oth 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, who, 
 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 
 
 1 Judge's Illustrations, iii 564. * 12 Coke, 50. 
 
 ' 13 Co. 33.
 
 1612.] EDWARD COKE. ;8i 
 
 V 
 
 " prerogative " which might soon entirely 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 regu- 
 lations of police, which, being of small importance, and 
 for the public benefit, were readily acquiesced in. 
 James, from his accession, began to issue proclamations 
 whenever he thought that the existing law required 
 amendment. At last, on the /th of July, 1610, the 
 Commons, roused by these extraordinary attempts to 
 supersede their functions, presented an address to the 
 Crown, in which they say : 
 
 " It is apparent both that proclamations have been 
 of late years much more frequent than before, and that 
 they are extended not only to the liberty, but also to 
 the goods, inheritances, and 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 appointing punishments to be inflicted before 
 lawful trial and conviction ; some containing penalties 
 in form of penal statutes ; some 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 with letters commanding inquiry 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, was imposed the delicate task of presenting 
 this address, which he tried to soften by saying : 
 
 " We are persuaded that the attribute which was 
 given by one of the wisest writers to two of the best 
 emperors, ' divus Nerva and divus Trajanus,' so saith 
 Tacitus, ' res olim insociabiles miscuerunt, imperium et 
 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 gemitus columbce, the mourning of a
 
 2 8a REIGN OF JAMES I. [i6ia. 
 
 dove, with that patience and humility of heart which 
 appertaineth to loving and loyal subjects." 
 
 James, however, thinking that this complaint re- 
 sembled more the roaring of a lion, was much alarmed ; 
 and, really believing, from the flatterers who 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 might have conference 
 with my brethren the Judges about the answer to the 
 King. To which the Lord Chancellor said that every 
 precedent had at first a 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 leave it to the King to 
 order in it according to his wisdom, and for the good of 
 his subjects, or otherwise the King would be no more 
 than the Duke of Venice." Coke, C. J. " True it is 
 that every precedent hath 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 provide that 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 ; for deliberandum est diu quod 
 statuendum est semel" 
 
 After much solicitation, time was at last given, and 
 the consulted Judges all concurred in an answer drawn 
 by Coke 
 
 " That the King by his proclamation cannot create 
 any 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 none 
 is, upon that ensues fine and imprisonment. Also the 
 law of England is divided into three parts : common 
 law, statute law, and custom ; but the King's proclama- 
 tion is none of them. Also, malum, aut est malum in se, 
 aut prohibitum ; that which is against common law is 
 malum in se ; malum prohibitum is such an offense as is
 
 1613.] EDWARD COKE. 283 
 
 prohibited by act of parliament. Also it was resolved, 
 that the King hath no prerogative but that which the 
 law of the land allows him. But the King, for preven- 
 tion of offenses, may admonish his subjects by proclama- 
 tion that they keep the laws, and do not offend them, 
 upon punishment to be inflicted by the law." 2 
 
 Coke, in reporting these resolutions of the Judges, 
 adds, on his own authority, " The King, by his procla- 
 mation or otherwise, cannot change any part of the 
 common law, or statute law, or the customs of the 
 realm. Also, the King cannot create any offense, by his 
 prohibition or proclamation, which was not an offense 
 before, for that were to change the law, and to make an 
 offense which was not ; for ubi non est lex, ibi non est 
 transgressio ; ergo, that which cannot be punished with- 
 out proclamation cannot be punished with it."" Yet 
 Hume, in commenting on the issuing of proclamations 
 by James I., has the audacity to say, " The legality of 
 this exertion was established by uniform and undisputed 
 practice, and was even acknowledged by lawyers, who 
 made, however, this difference between laws and procla- 
 mations, that the authority of the former was perpetual, 
 that of the latter expired with the Sovereign who 
 emitted them." 3 
 
 Coke met with a very sensible mortification, in being 
 promoted to be Chief Justice of the King's Bench, on the 
 death of Chief Justice Fleming. This office, although 
 of higher rank, was then considered less desirable than 
 the chiefship of the Common Pleas, for the profits of the 
 former were much less, with increased peril of giving 
 offense to the Government, and so being dismissed. 
 Coke's seeming promotion was owing to the spite and 
 craft of his rival. Bacon was impatient for the Attorney 
 
 1 12 Rep. 74. * 12 Coke, 75-. 
 
 * Vol. vi. p. 52. We ought not hastily to accuse him of willful misrepre- 
 sentation or suppression, for he was utterly unacquainted with English 
 juridical writers. Gibbon entered upon a laborious study of the Roman 
 civil law, to fit him to write his DECLINE AND FALL ; but Hume never had 
 the slightest insight into our jurisprudence, and his work, however ad- 
 mirable as a literary composition, is a very defective performance as a 
 history. Of the supposed distinction between a statute and nftvc/amotu*, 
 that the former was of perpetual obligation till repealed, and that the 
 latter lost its force on a demise of the crown, I do not find a trace in any 
 of our books.
 
 284 REIGN OF JAMES I. [1613. 
 
 General's place, filled by Hobart, who was not willing to 
 change it for the chiefship of the King's Bench, but 
 would for that of the Common Pleas. Bacon thereupon 
 sent to the King " reasons why it should be exceedingly 
 much for his Majesty's service to remove the Lord Coke 
 from the place he now holdeth, to be Chief Justice of 
 England, and the Attorney to succeed him, and the Soli- 
 citor the Attorney." Among the reasons urged for this 
 arrangement were these : 
 
 " First, it will strengthen the King's causes greatly 
 among the Judges, for both my Lord Coke will think 
 himself near a privy councillor's place, and thereupon 
 turn obsequious, and the Attorney General, a new man, 
 and a grave person in the Judge's place, will come in 
 well to the other, and hold him hard to it, not without 
 emulation between them who shall please the King best. 
 Besides the removal of my Lord Coke to a place of less 
 profit, though it be with his will, yet will it be thought 
 abroad a kind of discipline to him for opposing himself 
 in the King's causes, the example thereof will contain 
 others in more awe." 
 
 The King consented ; Coke was obliged to agree to 
 the translation, under a hint that he might be turned off 
 entirely ; and Bacon, now Attorney General, in his Apoph- 
 thegms thus exults in his own roguery : " After a 
 few days the Lord Coke, meeting with the King's At- 
 torney, said to him, ' Mr. Attorney, this is all your do- 
 ing ; it is you that have made this stir !' Mr. Attorney 
 answered, ' Ah, my Lord, your Lordship all this while 
 hath grown in breadth, you must needs now grow in 
 height, or else you would be a monster.' ' 
 
 There cannot be a doubt that Coke's elevation was 
 meant as a punishment, and that Bacon, the contriver 
 of it, already contemplated his ruin ; but, to save ap- 
 pearances, he was treated with outward respect, and in a 
 a few days afterwards he was sworn of the Privy Coun- 
 cil. 
 
 He took his seat in the Court of King's Bench in 
 Michaelmas Term, 1613, and presided there three years 
 with distinguished ability and integrity. He reconciled 
 himself to the loss of profit by the high rank he now en- 
 joyed, and he took particular delight in styling himself
 
 1615.] EDWARD COKE. 285 
 
 " Chief Justice of England," a title which his predeces- 
 sors had sometimes assumed, although, since the office 
 of Grand Justiciar had ceased to exist, they had usually 
 been only called " Chief Justice of the Court of King's 
 Bench." 
 
 Hopes were entertained that he really was becoming 
 "obsequious." A " BENEVOLENCE" being demanded to 
 supply the pressing necessities of the Crown, he muni- 
 ficently gave 2000 as his own contribution, while very 
 small sums could be squeezed out of his brother Judges ; 
 the legality of the Benevolence being questioned in the 
 Star Chamber, after some hesitation he pronounced an 
 opinion that it was not illegal. Mr. Attorney General Ba- 
 con thereupon wrote to the King, " My Lord Chief Jus- 
 tice delivered the law for the Benevolence strongly ; I 
 would he -had done it timely." But the ground he took 
 was, that "a Benevolence was a free-will offering not a 
 tax;" and Bacon added, " It will appear most evidently 
 what care was taken that that which was then done might 
 not have the effect, no, nor the show, no, nor so much as 
 the shadow of a tax." l Coke thus proved that he would 
 not play a factious part for the sake of popularity, and 
 that he was disposed to support the proceedings of the 
 Government as far as his conscience would permit. 
 
 But Bacon, the Attorney General now in possession 
 of the King's ear with a view to strengthen his favor at 
 Court, and to insure his acquisition of the Great Seal, 
 about which he cared more than the completion of his 
 NOVUM ORGANUM, originated proceedings contrary to 
 the plainest dictates of law, justice, and humanity. One 
 of the worst of these was the prosecution for high trea- 
 sou of Peacham, an aged and pious clergyman, against 
 whom the only case was, that upon breaking into his 
 house, and searching his papers, there was found a MS. 
 sermon which he had never preached inculcating the 
 doctrine, that, under certain circumstances, subjects may 
 resist a sovereign who attempts to subvert their liber- 
 ties. In the vain hope of making him accuse himself, he 
 was placed upon the rack in the presence of the law 
 officers of the Crown, and " examined before torture, in 
 torture, between torture, and after torture."* To ob- 
 
 1 2 St. Tr. 904 ; 12 Rep. 119. * Letter to the King, signed by Bacon.
 
 *86 REIGN OF JAMES I. [1615. 
 
 tain a conviction seemed hopeless without a previous 
 opinion obtained irregularly from the Judges. Thus Mr. 
 Attorney reported progress to King James, as to his en- 
 deavors : 
 
 " For Peacham's case I have, since my last letter, been 
 with Lord Coke twice ; once before Mr. Secretary's going 
 down to your Majesty, and once since, which was yester- 
 day ; at the former of which times I delivered him 
 Peacham's papers, and at this latter the precedents, 
 which I had with care gathered and selected .... He 
 fell upon the same allegation which he had begun at the 
 council table, ' that judges were not to give opinions by 
 fractions, but entirely according to the vote, whereupon 
 they should settle upon conference, and that this auri- 
 tular taking of opinions, single and apart, was new and 
 dangerous ;' and other words more vehement than I re- 
 peat." 
 
 At this interview. Coke finally refused to give any 
 opinion, and desired the precedents to be left with him. 
 Soon after, Bacon again wrote to the King, " Myself 
 yesterday took the Lord Coke aside, after the rest were 
 gone, and told him all the rest were ready, and I was now 
 to require his Lordship's opinion, according to my com- 
 mission. He said I should have it, and repeated that 
 twice or thrice, and said he would tell it me within a 
 very short time, though he were not at that instant 
 ready." In three days Bacon wrote finally to the King, 
 " I send your Majesty enclosed my Lord Coke's an- 
 swers ; I will not call them rescripts, much less oracles. 
 They are of his own hand. I thought it my duty, as 
 soon as I received them, instantly to send them to your 
 Majesty, and forbear for the present to speak farther of 
 them." 
 
 Peacham was nevertheless brought to trial, and found 
 guilty of treason ; but such indignation was excited by 
 this judicial outrage, that the sentence of the law was not 
 carried into execution, and -a lingering death was in- 
 flicted upon him in prison by disease. No part of the 
 national disgrace could be cast upon the upright and 
 resolute Chief Justice of the King's Bench. 1 
 
 He likewise escaped all censure in the affair of the 
 
 1 See 5 Bacon's Works, 353 ; Cro. Car. 125.
 
 i6i6.] EDWARD COKE. 287 
 
 murder of Sir Thomas Overbury. He had not been ac- 
 cessory to the infamous sentence by which, to please the 
 caprice of the King, the young Countess of Essex, after 
 carrying on an illicit intercourse with a paramour, ob- 
 tained a divorce from her husband on the pretext that 
 she still remained a virgin. 1 At her second marriage to 
 the Earl of Somerset, he made her a wedding present ; 
 but, in thus assisting to give fclat to the ceremony, he 
 followed the example of all courtiers, and of the Lord 
 Mayor and citizens of London. Two years after, when 
 the rumor broke out that before this ill-starred union 
 she and her new husband had instigated the murder of 
 the man who had tried to prevent it, he put forth all his 
 energy to get at truth ; although the King, from per- 
 sonal liking or some mysterious reason, wished to screen 
 the most guilty parties from punishment. 
 
 In former times, the Chief Justice and the Puisne 
 Judges of the Court of King's Bench often acted as 
 police magistrate, taking preliminary examinations, and 
 issuing warrants for the apprehension of criminals. In 
 this case Coke took not less than 300 examinations, writ- 
 ing down the words of the witnesses and of the parties 
 accused with his own hand. "The Lord Chief Justice's 
 name thus occurring," observed Bacon, " I cannot pass 
 by it, and yet I have not skill to flatter. But this I will 
 say of him, that never man's person and his place were 
 better met in business than my Lord Coke and my Lord 
 Chief Justice in the case of Overbury." 
 
 Nevertheless, we should consider some of his proceed- 
 ings very strange if they were imitated by a Chief 
 Justice of the present age. Having granted the warrant 
 he actually went to Royston, where the Earl of Somer- 
 set was with the King, that he might himself super- 
 intend the arrest. Along with the other judges who 
 were to preside at the trial, he marshaled the evidence, 
 and concerted in what order it should be laid before the 
 jury. 4 When charging the grand jury, he told them that 
 
 2 St. Tr. 786. 
 
 * There is extant a very curious letter of Mr. Attorney General Bacon to 
 the King, about getting up the case: " If your Majesty vouchsafe to 
 direct it 'yourself, that is the best ; if not, I humbly pray you to require mj 
 Lord Chancellor that he, togethei with my Lord Chief Justice, \vill tonfci 
 with myself and my fellows that shall be used for the marshaling anc
 
 288 REIGN OF JAMES I. [1616 
 
 " 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 
 Wcston, 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 
 make an humble apology to himself at the bar of the 
 Court of King's Bench. He-then blurted out this witty 
 parody, 
 
 " Et quse tanto fuit Tyburn tibi causa videndi ?" 
 
 adding that " he himself never had attended executions 
 after reading the lines in Ovid 
 
 " Et lupus et vulpes instant morientibus 
 Et qucecunque minor nobilitate fera 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 death confessed the fact, and died peni- 
 tent ; and that he had besought their confessor to prove 
 this, if need should require." 1 
 
 But these things were quite according to the estab- 
 lished rules of proceeding, and in no respect detracted 
 
 bounding of the evidence, that we may have the help of his opinion as well 
 as that of my Lord Chief Justice ; whose great travels as I much commend, 
 yet that same pleropharia or over-confidence doth always subject things to a 
 great deal of chance." 22d of January, 1615-16. 
 
 1 In the course of one of these trials, the Chief Justice was placed in a 
 very ridiculous situation. Those who were plotting against the life of Sir 
 Thomas Overbury, had superstitiously consulted one Forman, 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 was reported the first leaf my Lord Coke 
 lighted on he found his own wife's name." Court and Character of King 
 James, p. III.
 
 1616.] EDWARD COKE. 289 
 
 from the credit with the Chief Justice acquired 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. 1 
 
 Sir Edward Coke's high reputation now raised a gen- 
 eral belief that he would succeed Lord Ellesmere as 
 Chancellor. 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 matter of your finances, which 
 seemeth 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 is seeking unwarrantably to extend the juris- 
 diction of his court. Lord Chancellor Ellesmere having 
 very properly granted an injunction against suing out 
 execution on a judgment 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, and 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 
 
 1 St. Tr. 911-1034 ; Amos's Oyer of Poisoning. 
 
 * This refers to the office of Lord Treasurer, which was afterwards con- 
 ferred on Chief Justices. 
 1 Bacon's Works, v. 371 
 I IQ
 
 apo REIGN OF JAMES I. [1616. 
 
 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. 1 
 
 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 disgraced." Nevertheless he in- 
 veighed against his rival 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 Commendams," * 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 held 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 
 
 1 See Lives of the Chancellors, vol. ii. ch. 1. 
 1 Colt v. Bislu>p of Lichjield, liobart, 193.
 
 1616.] EDWARD COKE. 
 
 291 
 
 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 holdeth it necessary, touching 
 his cause of commendams, upon the report which my 
 Lord of Winchester, who was present 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
 
 *92 REIGN OF JAMES I. [1616 
 
 therefore but certify your Majesty thereof, 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 
 
 " He 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 thought fit to acquaint them that deferring a 
 hearing upon necessary reasons neither denied nor de- 
 layed justice; it was rather a pause 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 private contest between subject and 
 subject, this was wide of the truth, for the Bishop 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. But, 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 not concerned." King : " For judges of the law to
 
 1616.] EDWARD COKE. 293 
 
 pronounce whether my prerogative is concerned or not 
 is very preposterous management, and I require you my 
 Lord Chancellor to declare whether I that am King, or 
 the Judges-, best understand my prerogative, the law, 
 and the oath of a Judge." Lord Chancellor Ellcsmere : 
 "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. J. : " Mr. Attorney, methinks you far exceed your 
 authority ; for it is the duty of counsel to plead before 
 the Judges, and not against them." Bacon, A. 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. By 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 Ellesmere, 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 Judges 
 to attend him for their advice, ought they not to stay
 
 294 REIGN OF JAMES I. [i6t6 
 
 proceedings till his Majesty has consulted them ?" All 
 the Judges except Coke : " Yes ! yes ! ! yes ! ! !" Coke, 
 C. J.: "WHEN THE CASE HAPPENS, I SHALL DO THAT 
 WHICH SHALL BE 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 
 keep the limits of their several courts, and not to suffer 
 his prerogative to be wounded, concluding with these 
 words, which convey his notion of the free 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 world, to which law I do advise you my 
 Judges to apply your studies." 1 
 
 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 
 Bench, 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, although there 
 was now a plan to apply the profits of it to make up the 
 very inadequate salaries of the Judges." Bacon under- 
 took, by fair or foul means, to bend the resolution of 
 Coke, and, after a casual conversation with him, thus 
 wrote to Villiers, pretending to have fully succeeded : 
 
 " As I was sitting by my Lord Chief Justice, one of 
 the Judges asked him whether Roper were dead. He 
 said that for his part he knew not. Another of the 
 Judges answered, 'It should concern you, my Lord, to 
 know it.' Wherefore he turned his speech to me, and 
 
 1 Bacon's Works, ii. 517 ; Carte, iv. 35 ; Lives of Chancellors, ii. 249. 
 
 * In the reign of James I., the salary of the Chief Justice of the King's 
 Bench was only .224 19^. 6d. a year, with .33 6s. &d. for his circuits ; and 
 the salary of the puisne judges was only ,188 6s. 8d. a. year. But this was 
 a grea f increase on >he parsimony of former times, for the yearly salary of 
 the Chief Justice of the King's Bench, in the reign of Edward 1. was only 
 170 marks.
 
 1616.] EDWARD COKE. 
 
 295 
 
 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 nd luck with it 
 that have had it.' I said again ' those days be passed.' 
 Here you have the dialogue to make you merry ; but 
 in sadness I was glad to perceive he meant not to con- 
 test." 
 
 However, when the resignation took place, Coke 
 denied the promise, and insisted upon his right to dis- 
 pose of the office for the benefit of the Judges. This 
 was a display of spirit by no means to be forgiven, and 
 the resolution was immediately formed to cashier him. 
 
 The true reason for this outrage could not be avowed, 
 and nothing could be more creditable to the integrity 
 and ability of Coke than the wretched inventions which 
 were resorted to as pretexts for disgracing him. Being 
 summoned before the Privy Council, he was first charged 
 with breach of duty when he was Attorney General in 
 concealing a bond given to the Crown by Sir Christo- 
 pher Hatton. He said that " now twelve years being 
 past, it was no great marvel if his memory was short ;" 
 but he showed that he had derived no advantage, and 
 the Crown had suffered no damage, from the alleged 
 neglect. He was then charged with misconduct in his 
 dispute with the Lord Chancellor respecting injunctions. 
 He answered, that if he was in error he might say " Er- 
 ravimus cum patribus," and he vouched various authori- 
 ties to prove that such proceedings in the Chancery had 
 been thought to tend to the subversion of the common 
 law. Lastly, he was charged with insulting the King 
 when called before him in the case of commendams. He 
 admitted that he was wrong in denying the right of the 
 King's counsel to speak on that occasion, their opinion 
 being asked by his Majesty, but he disclaimed all inten- 
 tional disrespect in returning the answer " that when 
 the time should be, he would do that which should 
 become an honest and a just judge." 
 
 He was then desired to withdraw, and a few days af- 
 terwards he was re-summoned before the Privy Council, 
 when, being made to kneel, the Lord Treasurer, the Earl 
 of Suffolk, thus pronounced sentence : 
 
 " Sir Edward Coke, I am commanded by his Majesty
 
 REIGN OF JAMES 7. [1616. 
 
 to inform you that his Majesty is by no means satisfied 
 with your excuses. Yet, out of regard to your former 
 services, he is not disposed to deal with you heavily, and 
 therefore he hath decreed I. That you be sequestered 
 the council chamber until his Majesty's pleasure be 
 farther known. 2. That you forbear to ride your sum- 
 mer circuit as justice of assize. 3. That during the va- 
 cation, while you have time to live privately and dispose 
 yourself at home, you take into consideration and re- 
 view your books of Reports, wherein, as his Majesty is 
 informed, be many extravagant and exhorbitant opinions 
 set down and publised for positive and good law. 
 Amongst other things, the King is not well pleased with 
 the title of the book wherein you entitle yourself ' LORD 
 CHIEF JUSTICE OF ENGLAND,' whereas by law you can 
 challenge no more than LORD CHIEF JUSTICE OF THE 
 KING'S BENCH. And having corrected what in your 
 discretion be found meet in these Reports, his Majesty's 
 pleasure is that you do bring them privately before him- 
 self, so that he may consider thereof as in his princely 
 judgment shall be found expedient. To conclude, I 
 have yet another cause of complaint against you. His 
 Majesty has been credibly informed that you have 
 suffered your coachman to ride bareheaded before you, 
 and his Majesty desires that this may be foreborne in 
 future." 
 
 Coke, C. y. . " I humbly submit myself to his Ma- 
 jesty's pleasure ; but this I beg your Lordships to take 
 notice of, and to state to his Majesty from me, with all 
 humility, that if my coachman hath rode before me 
 bareheaded, he did it at his own ease, and not by my 
 order." 
 
 The only delinquency which could be pressed against 
 him was having fallen into some mistakes in his printed 
 books of Reports ; and to make these the foundation of 
 a criminal proceeding for the purpose of removing him 
 from the bench, must, even in that age, have shocked all 
 mankind. Such was his gigantic energy, that while he 
 was Attorney General he had composed and published 
 five volumes of Reports of Cases determined while he 
 was at the bar ; and afterwards, when he was Chief Jus- 
 tice of Common Pleas, and of the King's Bench, six
 
 i6i6.j EDWARD COKE. 297 
 
 more, of cases determined by himself and his brother 
 Judges. 1 They were executed with great accuracy and 
 ability, though tinctured with quaintness and pedantry ; 
 and Bacon, who was now disgracefully taking the most 
 active part against their author, had deliberately written, 
 "To give every man his due, Sir Edward Coke's 
 Reports, though they may have errors, and some per- 
 emptory and extrajudicial resolutions, more than are 
 wanted, yet they contain infinite good decisions and 
 rulings." 
 
 The Chief Justice, instead of going the circuit, was 
 condemned to employ himself in revising these Reports; 
 and when Michaelmas Term came round he was again 
 cited before his accusers. Of this meeting we have an 
 account of a letter from Bacon to the King ; 
 
 " This morning, according to your Majesty's com- 
 mands, we have had my Lord Chief Justice of the Com- 
 mon Pleas before us. It was delivered unto him that 
 your Majesty's pleasure was, that we should receive an 
 account from him of the performance of a command- 
 ment of your Majesty laid upon him, which was that 
 he should enter into a view 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 were of his Reports eleven books, 
 that contained above 500 cases ; that heretofore in other 
 Reports much reverenced there had been found errors 
 whic;h 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 should be no more errors in his 500 cases than 
 in a few cases of Plowden. . . . 
 
 " The Lord Chancellor, in the conclusion, signified to 
 my Lord Coke your Majesty's commandment, that, until 
 report be made and your pleasure therefore known, he 
 shall forbear sitting in Westminster, &c. ; not restrain- 
 ing, nevertheless, any other exercise of his place of 
 Chief Justice in private." 
 
 1 He calls them " Parts." Out of respect, they are cited as " 1st Report,' 
 ad Report," &c., without any other designation.
 
 298 REIGN OF JAMES I. [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. 
 Bonhams 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 are made against law 
 and right, which they that made them, perceiving, would 
 not put them in execution.' ' He concluded with 
 Stroud's case, 16 & 17 Eliz., adjudging " that if an act of 
 parliament give to any to have cognizance of all manner of 
 pleas within his manor of D., he shall hold no plea where- 
 unto himself is a party for iniquum est aliquem suce rei 
 esse judicem" 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." 
 6 Rep. f. u8a. Bacon's Works, vi. 405.
 
 1616.] EDWARD COKE. 299 
 
 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 magnificent, 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 
 
 1 Bacon's Works, v. 127. ' Ibid 131.
 
 300 REIGN OF JAMES I. [1616 
 
 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, 1 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 unrespective 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." 8 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 I4th 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, PRIDE, PROHIBI- 
 TIONS, PR.fcMUNIRE, and PREROGATIVE." 3 
 
 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, 
 \fy receiving the intelligence with indifference, or at least 
 with composure. But there is extant a letter from Mr. 
 John Castle, written three days after, containing 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- 
 
 1 Yelvertoo. * Nichol's Progresses of James, voL iii. p. 194. * Ib. p. 226.
 
 i6i6.] EDWARD COKE. 3 ci 
 
 pin, who, at the presenting of it, saw that magnanimity 
 and supposed greatness of spirit to fall into a very nar- 
 row room, for he received it with dejection and tears. 
 Tremor et successio non cadunt in fortem et constantcm 
 vtrum." 1 
 
 This momentary weakness ought to be forgiven him, 
 for he behaved with unflinching courage 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." a We 
 ought 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 goes away with 
 a general applause and good opinion. And the King 
 himself when he told his resolution at the council table 
 to remove him, yet gave this character, that he thought 
 him no ways corrupt, but a good Justice with so many 
 other good words, as if he meant to hang him with a 
 silken halter. Hitherto he bears himself well, 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 him how much he disallowed her 
 courses, having divided herself 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 
 
 1 See D'Israeli's Character of James I., p. 125. 
 * Hackett's Life of Lord Keeper Williams, ii. I2O.
 
 302 REIGN OF JAMES /. [1616 
 
 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." l 
 
 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." 
 
 1 Nichol's Progresses of James, vol. iii. 228.
 
 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; 1 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 ; 2 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 
 was 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 
 
 1 Bacon's Works, v. 403 ; Lives of the Chancellors, ii. 358 
 Bacon's Works, vL 409.
 
 $04 REIGN OF JAMES I. [1617 
 
 would occur of precipitating him from his pride of place 
 into the depth of humiliation. 
 
 The ex-Chief Justice, a few weeks after his dismissal, 
 contrived to have an interview with the King, and was 
 rather graciously received by him ; but he knew that he 
 had no chance of being restored to power except by the 
 favor of Buckingham, whom he had so deeply offended. 
 
 With great dexterity he laid a plan, which had very 
 nearly succeeded, before Lord Chancellor Bacon was 
 warm in the marble chair. 
 
 Lady Hatton, although she hated her aged husband, 
 and was constantly keeping him in hot water, occasion- 
 ally lived with him, and had brought him a daughter, 
 called " The Lady Frances," only fourteen years old, 
 who was a very rich heiress, as her mother's possessions 
 were entailed upon her, 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 age, and was exceedingly poor. Sir Ed- 
 ward Coke, while Chief Justice, had scorned the idea of 
 such a match ; but it was now suggested to him by 
 Secretary Winwood as the certain and the only means 
 of restoring him to favor 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 representative of the executive government, 
 played " fantastic tricks " which were not expected from 
 a philosopher in the enjoyment of supreme power. 
 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 
 Office. There is no such strong bond of union as a 
 common hatred of a third person, and the insulted 
 statesman suggested to the ex-Chief Justice that 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 con-
 
 1617.] EDWARD COKE. 305 
 
 suiting Lady Hatton, 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 family. 
 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 curiosity, 
 to know how much could be assured by marriage 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 Villiers 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. 1 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 o'clock, soon after ten she 
 sallied forthwith the Lady Frances from Hatton House, 
 Holborn. They entered a coach which was waiting for 
 them at a little distance, and, traveling by unfrequented 
 and circuitous roads, next morning they arrived at a 
 house of the Earl of Argyle at Oatlands, then rented by 
 Sir Edmund Withipole, their cousin. There they were 
 shut up, in the hope that there could be no trace of 
 the place of their concealment. 
 
 1 Chamberlain, in a letter dated 22d of June, 1616, says, " The Lady 
 Hatton stood by him in great stead, both in soliciting at the council table, 
 wherein she hath done herself great honor, but especially in refusing to 
 sever her cause from his, as she was moved to do, btrt resolving and pub- 
 lishing that she would run the same fortune with him." She had even 
 quarrelled with both their Majesties for his sake. On the 6th of July, 
 Chamberlain writes, " His lady hath likewise carried herself very indis- 
 creetly, of late, towards the Queen, whereby she hath lost her favor and U 
 forbidden the court as also the King's." 
 I 20.
 
 306 REIGN OF JAMES I. [1617, 
 
 While they lay hid, Lady Hatton not only did every 
 thing possible to prejudice her daughter against Sir 
 John Villiers, but offered her in marriage to the young 
 Earl of Oxford, and actually showed her a forged letter, 
 purporting to come from that nobleman, which assever- 
 ated that he was deeply attached to her, and that he 
 aspired to her hand. 
 
 Meanwhile Sir Edward 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 dependents, and his servants ; and, 
 himself putting on a breast-plate, with a sword by his 
 side, and pistols at his saddle 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 the party, gaining 
 entrance by a window, let 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 small 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 with 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 
 between 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
 
 1617.] EDWARD COKE. 307 
 
 of my Lord Argyle, I, 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. Jt 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 young 
 gentlewoman's, who expects a great fortune from her 
 mother, which, without her consent, is endangered. 
 This match, out of my faith and freedom towards your 
 Lordship, I hold very inconvenient both for yonr 
 brother and yourself. 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
 
 308 REIGN OF JAMES I. [1617. 
 
 is disliked. Thirdly, your Lordship will go near to lose 
 all such your friends as are 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." 
 
 He 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 Majesty'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 answer 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, which 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 clam et secret^ 
 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 
 the consequences might have been dangerous." She 
 answered " I. I had cause to provide for her quiet,
 
 1617.] EDWARD COKE. 309 
 
 Secretary Winwood threatening she 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 help, I placed her at my cousin-ger- 
 man's house a few days for her health and quiet. 2. My 
 daughter tempted by her father's threats and ill-usage, 
 and. pressing me to find a remedy, I did compassionate 
 her condition, 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 person or speech 
 being admitted 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 goes on to describe, by way of recrimination, 
 " Sir Edward Coke'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 
 law." 
 
 Now Bacon discovered the fatal mistake he had com- 
 mitted in opposing the match, and trembled lest the great 
 seal should at once be transferred from him 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
 
 310 REIGN OF JAMES I. [1617. 
 
 friends, which, if it proves true, I blame not you but 
 myself." 
 
 And the King's language to him was still more alarm- 
 ing: 
 
 ' Whereas you talk of the riot and violence committed 
 by Sir Edward Coke, we wonder you make no mention 
 of the riot and violence of them that stole away his 
 daughter, which was the first ground of all that noise." 
 
 Bacon's only chance of escaping shipwreck was at once 
 to put about and go upon the contrary tack. Accord- 
 ingly he stopped the prosecution in the Star Chamber 
 against Sir Edward Coke ; he directed that Lady Hat- 
 ton should be kept in strict confinement ; he declared 
 himself a warm friend to the match of the Lady Frances 
 with Sir John Villiers ; and he contrived, through Lady 
 Compton, 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 married under the 
 auspices of a Louis Phillippe counseled by a Guizot; 1 
 and as she had before copied and signed the contract 
 with Lord Oxford at the command of her mother, she 
 next copied and signed the following letter to her mother 
 at the command of her lather : 
 " Madam, 
 
 " I must now humbly desire your patience in giving 
 me leave to declare myself to you, which is, that without 
 your allowance and liking, all the world shall never make 
 me entangle or tie myself. But 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 Ladyship's pleasure, not as a thing I desire ; but I 
 resolve to be wholly ruled by my father and yourself, 
 knowing your judgments to be such that I may well rely 
 upon, and hoping that conscience and the natural affec- 
 
 1 Written before the revolution of February, 1848. After the misfortunes 
 which have befallen the King and the minister, I would not have harshly 
 censured their conduct in this affair ; but those who wished for the tran- 
 quillity of Europe must ever regret that the King, in recklessly seeking the 
 supposed advantage of his dynasty, forgot that he was the first magistrate of 
 a free state ; and, still more, that the minister, from whom better things 
 might have been expected, prompted and encouraged him to follow his in- 
 clination, instead of constitutionally reminding him of his duty. April, 
 1849.
 
 1617.] EDWARD COKE. 3 u 
 
 tion parents bear to children will let you do nothing but 
 for my good, and that you may receive comfort, I being 
 a mere child and not understanding the world nor what is 
 good for myself. That which makes me a little give way 
 to it is, that I hope it will be a means to procure a re~ 
 conciliation between my father and your Ladyship. Also 
 I think it will be a means of the King's favor to my fa- 
 ther. Himself is not to be misliked ; his fortune is very 
 
 good, a gentleman well born So I humbly take 
 
 my leave, praying that all things may be to every one's 
 contentment. 
 
 " Your Ladyship's most obedient 
 
 " and humble daughter for ever, 
 
 " FRANCES COKE. 
 
 " Dear mother, believe there has no violent means 
 been used to me by words or deeds." 
 
 Lady Hatton then wrote to the King that she would 
 settle her lands on her daughter and Sir John Villiers, 
 but remained as spiteful as ever against her husband. 
 Having justified her conduct in always refusing to take 
 his name, she says, 
 
 " And whereas he accuseth me of calling him ' base 
 and treacherous fellow ;' the words I cannot deny, but 
 when the cause is known I hope a little passion may be 
 excused. Neither do I think it will be thought fit that, 
 though he have five sons to maintain (as he allegeth), a 
 wife should therefore be thought unfit to have mainte- 
 nance according to her birth and fortune." 
 
 The marriage settlement was drawn under the King's 
 own superintendence, that both father and mother might 
 be compelled to do justice to Sir John Villiers and his 
 bride ; and on Michaelmas day the marriage was actually 
 celebrated at Hampton Court Palace, in the presence of 
 the King and Queen and all the chief nobility of Eng- 
 land. Strange to say, Lady Hatton still remained in 
 confinement, while Sir Edward Coke, in nine coaches, 
 brought his daughter and his friends to the palace, from 
 his son's at Kingston Townsend. The banquet was 
 most splendid ; a masque was performed in the evening; 
 the stocking was thrown with all due spirit ; and the 
 bride and bridegroom, according to a long established 
 fashion, received the company at their couc/ite.
 
 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, by base servility, restored to the entire con- 
 fidence both of the King and the favorite. What prob- 
 ably galled him still more was, that, very soon after- 
 wards, Lady Hatton was set at liberty. Abusing and 
 ridiculing 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. 1 
 
 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 gratuitous labor of the Council table, corres- 
 ponding pretty nearly to that of our " Judicial Com- 
 mittee." a He likewise sat occasionally in the Star 
 Chamber; and he consented to act in several commis- 
 
 1 " The expectancy of Sir Edward's rising is much abated by reason of his 
 lady's liberty, who was brought in great honor to Exeter House by my Lord 
 of Buckingham, from Sir William Craven's, whither she had been remanded 
 presented by his Lordship to the King, received gracious usage, reconciled 
 to her daughter by his Majesty, and her house at Holborn 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 Coke, nor any of his servants should be admitted." 
 Stafford's Letters and Dispatches, vol. i. p. 5. 
 
 \Ve have not any circumstantial account of the honors conferred on the 
 Lady Hatton on this occasion in her husband's absence ; but we are in- 
 formed that the year before, when the King dined at Wimbledon with her 
 father, Lord Exeter, " the Lady Hatton was there, and well graced, for the 
 King kissed her twice." NichoFs Progresses of Jar/its, vol. iii. p. 177 
 
 * He was resworn a Privy Councillor, Sept. 1617.
 
 i62i.] EDWARD COKE. 313 
 
 sions issued by the Government. 1 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." 3 Again, " Sir Edward Coke keeps in 
 still, and we have miss of him." 3 Afterwards, " Sir Ed- 
 ward Coke was at Friday's hearing, but in his nightcap ; 
 and complained to me he was avibulent 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 merchants 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." ' In 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 him for his 
 presumption in making his coachman ride bare-headed 
 before him. The 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 public revenue. " Sir Edward presiding 
 when sentence was to be pronounced, he led the way in 
 a long and learned speech, showing how often Treasurers 
 
 1 For the banishment of Jesuits and seminary priests (Rymer's Fcedera, 
 xvi. 93); for negotiating a treaty between the Dutch and English mer- 
 chants, touching their trade to the East Indies (Ibid. 170); for inquiring 
 into fines belonging to the Crown in regard of manorial dues (Ibid. 224); 
 and for examining into the prevalent offenses of transporting ordnance into 
 foreign parts (Ibid. 273). * Bacon's Works, v. 511. 
 
 * Ibid. vi. 214. 4 Ibid. vi. 230. 8 Ibid. 230, 239. 
 
 6 Stepen's Introduction to Bacon's Letters, p. 46.
 
 314 REIGN OF JAMES I. [1620. 
 
 had pillaged the King and the people ; and, trying to 
 prove that by the Earl and Countess the King had lost 
 .50,000, 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 30,000, for which they were committed to 
 the Tower." l 
 
 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 which he 
 had no warrant from the King. Sir Edward Coke, 
 whose place it was to begin, after a long and bitter 
 speech against him, proposed that he should be fined 
 6,000, 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. 2 
 
 The Lord Treasurer's office being put into commis- 
 sion, Coke was for some time a Lord of the Treasury 
 along with Archbishop Abbott, 8 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." 4 
 
 Accordingly, his opinion was asked about the pro- 
 priety of calling a new parliament, after parliaments had 
 been disused for six whole years. 6 We are told that he 
 was in most of the confidential conferences of state on 
 the management of the elections, 6 although he could 
 
 1 Wilson's Life of King James I. p. 706. 
 
 s Stephen's Introduction, p. 17. Coke escaped the disgrace of the exe- 
 cution of Sir Walter Raleigh, and probably could have made no effort to 
 save him. 
 
 3 Devon's Pell Records, temp. Jac. I. 
 
 4 Bacon's Works, v. 381. * Ibid. 531. Ibid. 536.
 
 i6ai.] EDWARD COKE. 
 
 3*5 
 
 scarcely have been consulted when the proclamation was 
 settled in which the King warned his faithful subjects 
 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 
 wrangling lawyers, who may seek reputation by stirring 
 needless questions.'" ' 
 
 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 patriotism, for the Lord 
 Chancellor had declared that the elections were to be 
 carried on " without packing, or degenerating arts, but 
 rather according to true policy." a 
 
 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 between them. 
 
 Coke's envy was now much excited by the immense 
 glory which Bacon acquired by the publication of cut 
 NOVUM ORGANUM. Having received a copy from the 
 author, he wrote in the fly-leaf, " Edw. C. ex dono Aus- 
 tens," and he vented his spleen in the following sarcastic 
 lines, which he subjoined : 
 
 " Auctori Consilium. 
 
 Instaurare paras veterum documenta sophorum, 
 Instaura leges, justitiamque prius." 
 
 In the title-page, which bore the device of a ship pass- 
 ing under a press 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 read in schooles, 
 
 But to be freighted in the Ship of Fools."* 
 
 Just as Parliament was about to assemble, a vacancy 
 occurred in the high offices to which Coke aspired, aad 
 he might have been appeased. But Bacon was so much 
 intoxicated by his political ascendancy and his literary 
 
 1 I Parl. Hist. 1169. * Bacon's Works, v. 531. 
 
 3 Alluding to Sebastian Brand's famous " SllYP OF FOLVS." This pre- 
 sentation copy of the Novum Organum ia still preserved at Holkham.
 
 3i6 REIGN OF JAMES I. [1621. 
 
 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. 1 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 I2th and I3th 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 distraction of poli- 
 tics, no day passed over him without his indulging in an 
 exercitation to illustrate 'iftUenage, Continual <?51aim, <?ollat- 
 etjal MJar^anty, or some other such delightful subject. 
 
 The meeting of parliament, on the 3Oth of January, 
 1621, 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 numbers to the new House 
 of Commons. Sir Edward Coke, who 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- 
 
 1 Orig. Jur. 104.
 
 1 62 1.] EDWARD COKE, 317 
 
 diate retainers of the Court. The irregular modes re- 
 sorted to for the purpose of raising money, particularly 
 by the grant of monopolies, in violation of the engage- 
 ments contracted by the Crown at the conclusion of the 
 reign of Queen 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 House 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 House." We 
 have the following abstract of his speech : 
 
 " ' Virtus silere in convivio, vitium in consilio! I joy 
 that all are bent with 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 sake. Let us guard our privileges, for 
 the privilege of the House regard the whole kingdom ; 
 like a circle, which ends where it began. Take heed 
 that we lose not our liberties by petitioning for liberty 
 to treat of grievances. In Edward III.'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 they are 
 at variance, the law is to be obeyed and not the procla- 
 mation. 1 No doubt a due supply ought to be granted. 
 
 1 Camden says, " Edward Coke bore himself this day with the truest pa-
 
 3 i 8 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. 1 
 
 He gained much applause, a few days after, from his 
 treatment of a flippant and irreverent speech against a 
 Bill " for the better keeping of the Sabbath 1 " made by a 
 young member of the name of Sheppard, who said 
 
 " Every one knoweth that Dies Sabbati 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 Edward 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 the service of this House as being unworthy to be 
 a member thereof."* 
 
 trioti?m, and taught that no proclamation was of weight against parlia- 
 ment." Camdens Annals of James /., p. 67. 
 
 1 Parl. Hist. 1175-1188. *ibid. 1194.
 
 i62i.] EDWARD 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 Mompesson, 
 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 are now grown like hydras' heads ; they 
 grow up as fast as they are cut off. Monopolies are 
 granted de vento et 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 depopulator, 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 omne 
 vert it ur in fumum" 1 
 
 The report was agreed to, and Sir Edward Coke was 
 directed to go to the bar of the Upper House 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- 
 
 1 I Parl. Hist. 1195. 
 
 *See Lives of the Chancellors, ii. 388 ; I Parl. Hist. 1199.
 
 320 REIGN OF JAMES I. [1621. 
 
 vestigation 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 drawing 
 up the charges arising out of the bribes received from 
 Aubrey and Egerton 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. 1 
 
 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 Majesty 
 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 could speak in this business. 
 The Commons were about to return an answer agreeing 
 to this proposal, when Sir Edward Coke begged they 
 would take heed not to hinder the manner of. their par- 
 liamentary proceeding against a great delinquent. A 
 resolution was then adopted to prosecute the case before 
 the Lords. 8 
 
 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 
 Bench, 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 .40,000, 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 according to the rules of law and justice, and the 
 eagerness with which he had discharged his duty might 
 
 1 2 St. Tr. 1087. J I Parl. Hist. 1228. 
 
 8 2 St. Tr. 1037-1119. Bacon, on account of illness, was not present.
 
 
 
 LINCOLN'S INN, AiJorr 1720.
 
 1 62 1.] EDWARD 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 
 visiting 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 I. and 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." 1 Sir Ed- 
 
 1 I Parl. Hist. 1265. 
 I 21
 
 323 REIGN OF JAMES I. [1621. 
 
 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 cruel enemies.' 
 After which the House adjourned to the I4th 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 staple to transport 
 woolen cloth to Holland.'" And a bill being brought in 
 " to prohibit the importation of corn, for 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 preferred 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." 4 
 
 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 
 
 1 I Parl. Hist. 1295. * Proceedings and Debates, i. 308, iL 155. 
 
 1 Ibid. ii. 35. Ibid. ii. 87.
 
 i62i.] EDWARD COKE. 323 
 
 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 cattuiri) 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 I'll, 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 Cc%i- 
 monswith 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. 733, I Parl. Hist. 1296.
 
 3 2 4 REIGN OF JAMES I. [1621. 
 
 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." 2 
 
 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 all dutifulness 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 
 nofle 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." 
 
 1 I ParL Hist. 1322. Ibid. 1319.
 
 i62i.J EDWARD COKE. 325 
 
 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, 1 
 
 " 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. ' Omnis qualitas in principali subjecto est in 
 summo gradu' as ' lumen in sole] and so are the privi- 
 leges (which are the laws) of the parliament here in par- 
 liament, l in principali subjecto 1 and therefore, ' in summo 
 gradu.' The liberties and privileges of parliament are 
 the mother and life of all laws ; whereas the King saith, 
 ' he liketh 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. ' Consuetude Regni,' is the law of this kingdom. 
 He would have us stand upon the defense of our privi- 
 leges in this point." 3 
 
 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, 
 
 1 Vol. i. p. 1355. * Parl. Hist. 1349.
 
 326 REIGN OF JAMES I. [1622 
 
 every member of the House hath, and of right ought 
 to have, freedom of speech to propound, treat, reason, 
 and bring to conclusion 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 
 seemxfittest, 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." 1 
 
 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, manu sud pro- 
 frid, 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 th*e 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.' 
 
 1 Tarl. Hist. 1361. * Ibid. 1363. 
 
 4 Ibid. 1370. It was very severe on Coke and his associates as ill-tem- 
 pered spirits," and accused them of " sowing tares with the wheat.'
 
 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. 1 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 wag " This room 
 has long wanted a Cook ;"* and he was soon after com- 
 plimented in the following distich, 
 
 " Jus condere cocus potuit, sed condere jura 
 Non potuit ; potuit condere jura cocus." 
 
 Instead of being prosecuted for his speeches in the 
 
 1 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 the7 
 meddle with nothing that concerns his land or private estate." CoL'-on MS., 
 Titus B. vii. 204. 
 
 8 D'Israeli's James I., p. 125.
 
 328 REIGN OF JAMES I. [16-. 
 
 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 against him in 
 the Star Chamber, respecting the bond for a debt due to 
 the Crown which he had taken from Sir Christopher 
 Hatton. By way of insult, Lord Arundel was sent to 
 him with a message " that the King had given him 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." 1 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." 4 
 
 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 
 
 1 D'Israeli's James I., 126. * Roger Coke. 
 
 8 The following dialogue is said to have passed between the Prince and 
 the 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 may remember Mr. Coke. K. " I know no such 
 man. By my saul, there is one Captain Coke, the leader of the faction in 
 parliament." Sloam MSS. Feb. 2. 1621-22, in tJie British Museum. 
 
 * Wilson's Life of James I., IQI.
 
 1624.] ED WARD COKE. 
 
 329 
 
 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. He 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 1 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 Mompessons there." 1 
 
 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." 8 
 
 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.' 
 
 1 Rushworth, i. 523 ; 2 Parl. Hist. 257. 
 
 'Clarendon says with great spite, "Sir Edward Coke blasphemously 
 called him OUR SAVIOUR." Hist. vol. i. p. 9. 
 
 8 Stat. 21 James I. c. 3. Hume says, "This bill was conceived in sud
 
 330 REIGN OF JAMES /. [1624, 
 
 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 bar of 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, and adjudged " to lose all his offices which he 
 holds in this kingdom ; to be incapable of any office or 
 employment in future ; to be imprisoned in the Tower 
 during the King's pleasure ; to pay a fine of 50,000 ; 
 never to sit in parliament any more ; and never to come 
 within the verge of the Court." 1 
 
 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. 
 
 1 Lords' Journals ; I Parl. Kist. 1411-1478.
 
 I62S-J EDWARD COKE. 331 
 
 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 parliament, 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 new King's 
 reign, in which there can be no grievances as yet." 1 
 
 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 : 
 
 " Necessitas affect at a, invincibilis et improvida. If 
 necessity comes by improvidence, there is no cause to 
 give. No King can subsist in an honorable estate with- 
 out three abilities : I. To be able to maintain himself 
 against sudden invasions. 2. To aid his allies and con- 
 federates. 3. To reward his well-deserving servants. 
 But there is a leak in the government, whereof these are 
 the causes : Frauds in the customs new invented 
 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 2 Parl. Hist. 5. Ibid. H.
 
 332 REIGN OF CHARLES I. [1626. 
 
 " Two leaks would drown any ship. Solum et malum 
 concilium, is a bottomless sieve. An officer should not 
 be citpidus alienee rei,parcus sti<z. Miser a servitus est ubi 
 lex vaga aut 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 tire 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 oath 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 Lotteries." " 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. 1 
 
 Nevertheless, not only without bribe, but without soli- 
 citation, he was returned to the House of Commons by his 
 native county of Norfolk. 8 When the parliament met, a 
 
 1 Cro. Car. 26. 
 
 * In his own language, "sine aliqua motione aut petitione inde a me prsebitis."
 
 1626.] EDWARD 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. 1 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 decision. 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 stead ; 
 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 him 
 by the Lady Clare." 4 
 
 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 head 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 
 
 1 This is repealed by 3 Geo. III. c. 15, 
 
 * 2 Parl. 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.
 
 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, m 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 
 my 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 who, 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 
 
 1 Rushworth, i. 477.
 
 1628.] EDWARD COKE. 335 
 
 subject of antiquarian research, or perhaps occasionally 
 summoned 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 : 
 
 " Dum tempus habemus bonum operemur, 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 will ? 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 villefti 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 imprisonctur, aut disseisetur de libcro tencmcnto suo, 
 &c., nisi per legate judicium parium suorum, vel per 
 legem terra;." l 
 
 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 : 
 
 1 2 ParL Hist. 237.
 
 336 REIGN OF CHARLES I. [1628 
 
 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." l 
 
 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." 8 
 
 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.' 
 
 1 Ibid. 246. Notwithstanding this 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 j ustice 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, ' ermviinus cum Patribus,' and they can show no precedent but 
 that our predecessors have done as 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 : 
 c.tiii thus did the Lord Chief Justice Coke in Raynard's Case" 2 ParJ. 
 Hist. 292. 
 
 2 Parl. Hist. 259. 
 
 8 " Poor England ! thou art a devoted deer, 
 
 Beset with every ill but that of fear." Cowfer.
 
 1628.] EDWARD COKE. 337 
 
 In the parliament roll, 4 Edw. 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 yet 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 
 maxime timent 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 pericuhim, there must be commune 
 auxiliumf 
 
 Still he was determined that, before the supply was 
 actually given, there should be an effectual redress of 
 grievances. He therefore framed the famous PETITION 
 OF RIGHT. This second MAGNA CHARTA 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 
 
 1 2 Parl. Hist. 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.
 
 338 REIGN OF CHARLES I. [1628. 
 
 were chiefly conducted on the part of the Commons by 
 Sir Edward Coke. What seems very strange to us, 
 the Attorney General and other Crown 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 verbum 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 
 
 1 2 Parl. Hist. 348 ; Rushworth, i. 558.
 
 1628.] EDWARD COKE. 339 
 
 the House of Commons for their concurrence in the 
 amendment, Sir Edward Coke said, 
 
 " This is magnum 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 lav/, 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 fa* a power with force : the sheriff shall take the 
 power 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 a salvo jure suo from Kings no more 
 than our Kings of old could endure from churchmen 
 salvo honore Dei et Ecclesitz. 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 ; a.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 alj this parliament; to 
 acknowledge that their Lordships had not only dealt 
 nobly with them in words, but also in deeds ; that this 
 petition contained the true liberties of the subjects of 
 England, and their Lordships concurring with the Cora- 
 
 1 2 ParL Hist 357.
 
 340 REIGN OF CHARLES I. [1628, 
 
 mons had crowned the work ; that this parliament might 
 be justly styled ' PARLIAMENTUM BENEDICTUM ;' and to 
 ask the Lords to join in beseeching his Majesty, for 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'avisera" but framed the follow- 
 ing evasive 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 he holds himself in conscience as well obliged as 
 of his own prerogative." a 
 
 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 
 
 1 2 Parl. Hist. 372. Ibid. 377.
 
 2628.] EDWARD COKE. 341 
 
 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." 1 
 
 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 RIGHT." 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 desir6;" 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 bonfires 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 
 
 1 Rushworth, i. 609 ; Whitelock, p. 10 ; 2 Parl. Hist 410. 
 * Charles I. ch. i
 
 342 REIGN OF CHARLES I. [1629 
 
 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 PE- 
 TITION OF RIGHT, with the first answer \\hich he had 
 given to it, and he insisted that his prerogatives were in 
 all respects the same as before this parliament was called, 
 so that the right to levy tonnage and poundage was 
 inalienably vested in the 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. 1 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 
 
 1 Journals, nth Feb. 1629. "In respect that the term ends to-morrow, 
 and the assizes to follow, and divers members that are lawyers of this 
 House may be gone, it is ordered that none shall go forth of town without 
 the leave of the House. Ordered also that the Speaker's letter shall be sent 
 for Sir Edward Coke." z Parl. 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."
 
 1634.] EDWARD COKE. 343 
 
 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 House 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 thirteenth, 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 wife got her brother, the 
 Lord Wimbledon, to post with her to Stoke, to get pos- 
 session of that place ; but beyond Colebrook they met 
 with one of his physicians coming from him, who told her 
 of his much amendment, which made them also return 
 to London ; some distemper he had fallen into for want 
 of sleep, but is now well again." 1 
 
 Till a severe accident which he met with, he had con- 
 stantly refused " all dealings with doctors ;" and " he 
 was wont to give God s'olemn thanks that he never gave 
 
 1 Strafford's Letters and Dispatches, i. 265.
 
 344 REIGN OF CHARLES I. [1629 
 
 his body to physic, nor his heart to cruelty, nor his hand 
 to corruption." 1 When turned of eighty, and his 
 strength declining rapidly, a vigorous attempt was 
 made to induce him to take medical advice ; of this 
 we have a lively account in a letter from Mr. Mead to 
 Sir Martin Stuteville : 
 
 " 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 nobly 
 with a reward of twenty pieces to each man." 2 
 
 Of his accident, which in the first instance produced 
 no serious effects, there is the following account entered 
 by hini 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. And yet by the providence of Al- 
 mighty God, though I was in the greatest danger, yet I 
 had not the least hurt, 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, et nomen Domini benedictum, 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 her errors might 
 be ascribed to his utter disregard of her inclinations 
 when he concerted her marriage. She continued piously 
 to watch over him till his death.* 
 
 1 Lloyd's State Worthies, ii. 112. * 
 
 1 Harleian MS. '390. fol. 534 ; Ellis Papers, iii. 263. 
 
 * Extract of letter from Mr. Gerrard to Lord Deputy Strafford, dated
 
 1634.] EDWARD COKE. 345 
 
 His law books were still his unceasing delight ; and 
 he now wrote his SECOND, THIRD, and FOURTH IN- 
 STITUTES, which, though very inferior to the FIRST, are 
 wonderful monuments of his learning and industry. 
 
 On one occasion, without his privity, his name was 
 introduced in a criminal prosecution. A person of the 
 name of Jeffes, who seems to have been insane, fixed a 
 libel on the great gate of Westminster Hall, asserting 
 the judgment of Sir Edward Coke, when Chief Justice 
 of the King's Bench, in the case of Magdalen College, 1 
 to be treason, calling him traitor and perjured Judge, 
 and scandalizing all the profession of the law. The 
 Government thought that this was an insult to the 
 administration of justice not to be passed over, and 
 directed that the offender should be indicted in the 
 Court of King's Bench. Had he been brought before 
 the Star Chamber he could hardly have been more 
 harshly dealt with, for he was sentenced to stand twice 
 in the pillory, to be carried round all the courts in West- 
 minster Hall with a descriptive paper on his breast, to 
 make submission to every court there, to pay a fine of 
 .1000, and to find sureties for his good behavior during 
 the remainder of his life. 1 
 
 This proceeding was not prompted by any kindness 
 for the ex-Chief Justice ; on the contrary, he was looked 
 upon with constant suspicion, and the Government was 
 eagerly disposed to make him the subject of prosecu- 
 tion. Buckingham had fallen by the hand of an assassin, 
 but his arbitrary system of government was strenuously 
 carried on by Laud and those who had succeeded to 
 power ; taxes were levied without authority of Parlia- 
 ment ; illegal proclamations were issued, to be enforced 
 in the Star Chamber ; and Noy's device of ship-money 
 was almost mature. Sir Edward Coke having then re- 
 sided in the same county with Hampden, and at no 
 
 1 7th of March, 1636 : " Here is a new business revived ; your Lordship 
 hath heard of a strong friendship heretofore betwixt Sir Robert Howard 
 and the Lady Parbeck, for which she was called into the High Commission, 
 and there sentenced to stand in a white sheet in the Savoy Church, which 
 she avoided then by flight, and hath not been much looked after since, 
 having lived much out of town, and constantly these last two years with her 
 father at Stoke." He afterwards goes on to give an account of her im- 
 prisonment in the Gatehouse, and her escape in the disguise of a page. 
 1 ii Rep. 66. f Cro. Car. 175.
 
 346 REIGN OF CHARLES I. [1634. 
 
 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 1st 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. 1 
 
 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 
 
 1 There is now extant, in the library at Lambeth, 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 there." It begins, 
 " A wanscott box, of his arms, accounts and revenues." The house in Hoi- 
 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 to Bagshot by his Majesty's commandment, and then 
 broken up by his Majesty, gth 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.] EDWARD COKE. 347 
 
 a very long inscription, of which the following will prob- 
 ably be considered a sufficient specimen : 
 
 " Quique dum vixit, Bibliotheca viva, 
 Mortuus dici meruit Bibliothecse parensX 
 Duodecem Liberorum, tredecim 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. 
 
 " Saepe pater dixit, studium quid inutile tentas ? 
 Maeonides nullas ipse reliquit opes." l 
 
 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. The abuse of 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." 1 
 
 1 3 Institute, 74. 
 
 1 It is suppoeed to have been out of revenge for this charge, that Shak
 
 348 REIGN OF CHARLES I. [1634. 
 
 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. Cow-heel: 1 
 
 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. 
 
 1 3 Inst. ch. xx. 
 
 * Cowell had given great offense by asserting that the King was 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. Wilson Memor. Can fa 
 trig. p. 60.
 
 ED WARD 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. 1 
 
 There are now more volumes of law reports published 
 every year than at that time constituted a lawyer's 
 library." In the eighty years which elapsed between the 
 close of the Year-Books and the end of the 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 
 
 1 The first three parts were published in 1601, the fourth and fifth in 1603, 
 and the following six parts between 1606 and 1616, when the Reporter pre- 
 sided in C. P. or K. B. These were all originally printed in Norman 
 French. The I2th and I3th parts did not see the light till 1654 and 1658, 
 when they appeared in an English translation ; the use of French in law 
 proceedings having been forbidden by an ordinance of the Long Parlia- 
 ment. The whole have been lately most admirably edited by my friend 
 Mr. Farquhar Fraser. 
 
 ' 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 /. 
 
 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." 1 
 
 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 all that he recorded 
 as having been adjudged was received with reverence. 9 
 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.) 
 Caivdry : " '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 
 
 1 7 Rep, 4 a. * Bacon's Works, v. 473.
 
 ED WARD COKE. 351 
 
 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." 1 
 This work, which he thus dedicates 
 
 "H^EC EGO GRAND^EVUS 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 of famous and ever 
 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' ^etjvice, $ocage, (ftyand $et[jeantic, ilfnaofeal- 
 tnoigne, Burjgage, and "JftUenage, 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 falls 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- 
 
 1 Preface. * P. xxxvii. 
 
 1 Journals, I2th May, 1641. " Upon debate this day had in the Commons 
 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 Straflbrd wi 
 beheaded.
 
 352 REIGN OF CHARLES I. 
 
 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 
 knowledge 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 
 
 1 The most curious chapter is on "conjuration, witchcraft, sorcery, or 
 enchantment," in which he tells us of wizards 
 
 " By rhimes that can pull down full soon 
 From lofty sky the wandering moon !" 
 
 and highly applauds the legislature for punishing with death " such great 
 abominations. * Epilogue to 4th Institute.
 
 ED WARD COKE. 353 
 
 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, I never saw 
 any man of a loose and lawless life attain to any sound 
 and perfect knowledge of the said laws; and on the 
 other side, I never saw any man of excellent judgment 
 in the laws but was withal (being taught by such a mas- 
 ter) honest, faithful and virtuous." " Wherefore," he 
 says, " a great lawyer never dies improlis ant intestatus, 
 and his posterity continue to flourish to distant gen- 
 erations." ' 
 
 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." a 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 Seizin, and not 
 by Bargain and Sale" 3 
 
 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 which, in the dis- 
 tribution of time, he professed to allot to PRAYER and 
 the MUSES, according to his favorite Cantalena, 
 
 " Sex horas somno, totidem des legibjis sequis, 
 
 Quatuor orabis, des epulisque duas, 
 Quod superest ultra sacris largire camcenis." 4 
 
 His usual style of living was plain, yet he could give 
 very handsome entertainments. Lord Bacon tells us 
 
 1 See Preface to " Second Report." 
 
 * Lloyd's State Worthies, p. 825. 
 
 * He tried to carry a law that on every presentation the patron should b 
 sworn against simony, as well as the incumbent. Roger Coke's Vindita- 
 tion,-p. 266. 
 
 4 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 slumbers seven, 
 Ten to the world allot, and all to Heaven." 
 
 See Macaulay's Essays, vol. i. p. 367. 
 X 23
 
 354 REIGN OF CHARLES I. 
 
 that he was wont to say, when a great man came to din 
 ner at his house unexpectedly, ' 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 ; a 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 precibus, 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 
 worn being wont to say that the outward neatness of 
 out bodies might be a monitor of purity to our souls." 1 
 " The neatness of outward apparel," he himself used to 
 say, "reminds us that all ought to be clean within." 4 
 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 contemporaries. 
 Yet they speak of him with respect, if not with fondness. 
 " He was," said Spelman, " the founder of our legal 
 
 1 Apophthegms, 112. 
 
 * Nichol's Progresses of Elizabeth, iii. 467, 568. 
 
 1 Worthies, ii. 297. 
 
 4 There are 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.
 
 ED WARD COKE. 355 
 
 storehouse, and, which his rivals must confess, though 
 their spleen should burst by reason of it, the head of 
 our jurisprudence." 1 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." 3 
 
 Modern writers have treated him harshly. For ex- 
 ample, Hallam, after saying truly that he was "proud 
 and overbearing," describes him as " a flatterer and tool 
 of the Court till he had obtained his ends." 4 But he 
 does not senni 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 1 7th 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 
 
 T\el. Spelm. p. 150. Britannia, Iceni, p. 351. 
 
 1 VY.ivthies. Norfolk, p. 251. 4 Const Hist. i. 455. * 1. 476.
 
 356 REIGN OF CHARLES I. 
 
 the noble-minded must be in danger of being captivated 
 too much by Bacon's stupendous 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, knowing hardly 
 anything beyond the wearisome and crabbed learning 
 of his own craft, famous only in his own country, and 
 repelling all friendship or attachment by his harsh man- 
 ners. Yet, when we come to apply the test of moral 
 worth and upright conduct, Coke ought, beyond all 
 question, to be preferred. He 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 abettor of 
 despotic sway. When he lost his high office, he did not 
 retire from public life " with wasted spirits and 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 are mainly 
 indebted for the free institutions which we now enjoy. 
 
 Lady Hatton, his second wife, survived him many 
 years. On his death she took possession 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 fly 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 foundation of the greatest establishment 
 the King or his posterity can wish and attain, and there- 
 fore, if you should persist in the unhappiness to support 
 any advice to break the Parliament upon any pretense 
 whatsoever, you shall concur to destroy the best ground- 
 work for his Majesty's prosperity." 1 
 
 1 British Museum. Stoke Pogis House, so memorable in our legal
 
 EDWARD COKE. 357 
 
 Sir Edward Coke, by his first wife, had seven sons, 
 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, 1 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 which 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 Charles I. when in the power of 
 the Parliament, and celebrated by Gray in his " Long Story," having 
 passed from the Gayers, the Halseys, and the Penns, is now the property 
 of my valued friend and colleague, the Right Honorable Henry Labouchere. 
 A column has been erected in the park to the memory of Sir Edward Coke \ 
 but there is no other vestige in the parish of his existence, and there are no 
 traditional stories concerning him in the neighborhood. 
 1 2 Parl. Hist. 50.
 
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