>.*.. 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, 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 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 8M 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. 8p 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