[Preface] Advertisement THE text of the following BOOK OF JUDGES has been derived from Lord Campbell's Lives of the Chief Justices, and Lives of the Chancellors, with only a few verbal alterations for the sake of connection, some transpositions, the omission of some details of less interest to the American reader, and the insertion of a few paragraphs, enclosed in brackets, thus [ ]. Ed. Note: Full citation: Baron John Campbell (1779-1861), The Lives of the Chief Justices of England From the Norman Conquest [1066] Till the Death of Lord Mansfield (London: John Murray, 1849; Boston: Little and Brown, 1850; Philadelphia: Blanchard & Lea, 1851) Most biographers have been errant flatterers. Lord Campbell is a distinguished member of that modern [1856] school, which holds that history is of no dignity nor use, except so far as it is true; and that the truth is to be told at all hazards and without reserve. Hitherto social and political position, obtained no matter by what means, has in general secured not only present but future reputation. It can hardly fail to be a serious check upon those who struggle for distinction -4- to understand, that, however they may cheat or dazzle their contemporaries, tbey must expect to encounter from posterity a Rhadamantine judgment. The object of the present work, prepared as it is in the interest of justice and freedom, and designed to hold up a mirror to magistrates now [1856] sitting on the American bench, in which "to show virtue her own feature, scorn her own image, and the very life and body of the time his form and pressure," will, I hope, induce Lord Campbell to pardon the liberty I have ventured to take with his writings. R. H. BOSTON, November 20, 1855. -4- Contents     [Preface] 3     Introduction 9 1. Roger Le Brabancon [c 1306-1315] 37 2. Robert Tresilian [___-1388] 48 3. Thomas Billing [____-1482] 61 4. John Fitzjames [___-1539] 77 -5- 5. Thomas Fleming [___-1613] 87 6. Nicholas Hyde [___-1631] 97 7. John Brampston [1577-1654] 107 8. Robert Heath [___-1649] 119 9. Robert Foster [___-c 1662] 132 -6- 10. Robert Hyde [____-1665] 142 11. John Kelynge [____-1671] 152 12. William Scroggs 163 13. Francis North 185 -7- 14. Edmund Saunders 248 15. George Jeffreys [1648-1689] 267 16. Robert Wright 364 17. Appendix—[1855] Case of     Passmore Williamson 389 -8- I N T R O D U C T I O N HUME observes, in his History of England, that "among a people who lived in so simple a manner as the Anglo-Saxons, the judicial power is always of greater importance than the legislative." Ed. Note: Full citation: David Hume (1711-1776), The History of England from the Invasion of Julius Caesar to the Revolution in 1688 (London: T. Cadell, 1770) The same comparison will hold good even in communities far more advanced in civilization than the Anglo-Saxons. It has indeed been well said that the great end [purpose] of the complicated machinery of the existing [1856] British government is to get twelve men into a jury box. It might even be laid down as a general principle that the freedom or servitude of a people will mainly depend upon the sort of administration of justice which they have — especially of criminal justice. The whole course of British history will serve to justify this observation, since it has not been so much by the aid of mercenary soldiers, as by the assistance of lawyers and judges, that tyranny has sought to introduce itself into that country. It is in the [oppressive] history of the English courts, still more than in the history of the English Parliament, that we are to trace the origin and growth of those popular rights and of that idea of public liberty, propagated from England to America, -9- and upon which our Anglo-American free institutions are mainly founded. The origin of British liberty, by an ancient, constant, and affectionate tradition, bas uniformly been traced back to the times of the Anglo-Saxons. It was, however, by judicial, far more than by legislative institutions, that among those progenitors of ours private rights and public liberty were guarantied. The smallest political subdivision among the Anglo-Saxons was the tything, (teothing,) consisting of ten families, the members of which were responsible for the good conduct of each other. The head man of this community, denominated tything-elder, (teothing ealdor,) seems to have acted as a kind of arbitrator in settling disputes about matters of a trifling nature; but whether he had actually a court for administering justice does not appear. Next in order came the hundred, (hundrede,) or, as it was called in the north of England, the wapentake, in its original constitution consisting of ten tythings, or a hundred families, associated together by a similar bond of mutual responsibility. Its head man was called the hundred's elder, (hundredes ealdor,) or simply reeve, (gerefa,) that being the generic term for the officer of any district, or indeed for any officer.* Ed. Note: There was an economic basis for this type system. It is not uncommmon for political system writers to omit reference to the crucial fact, the economic basis of the politico-legal structure. To have a fair politico-legal system, it is a prerequisite to have a fair economic system. This gerefa, along with the bishop of the diocese, acted as the presiding officer of the hundred court, which met once at least every month, and had both ____________ * The German graf, for which the Latin comes (in English, count or earl) was employed as an equivalent, is a form of the same word. The law Latin for sheriff is vice-comes, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl. -10- civil and criminal jurisdiction, and cognizance also of ecclesiastical causes, which were entitled to precedence over every other business. There was besides a shire or county court (shir-gemot) held twice every year, or oftener if occasion required, convened by the sheriff, (shir-reeve,) or, as he was sometimes also called, the alderman, (ealdor-man,) who presided over it, assisted by the bishop. Here causes [lawsuits] were decided and business was transacted which affected the inhabitants of several of the hundreds. The highest court of all was tbat of the king, the Wittenagemot, (witan-gemot) in which he himself was present, attended by his councillors, or witan. This body, which united the functions of a legislative, judicial, and executive council, had no fixed times or place of meeting, but was held as occasion required, wherever the king happened to be. As to its judicial functions, it was in general only a court of extraordinary resort; it being a rule of the Anglo-Saxon law that none should apply for justice to the king unless he had first sought it in vain in the local courts.* Hence the hundred and county courts occupied by far the most conspicuous position in the Anglo-Saxon judicial polity. The Anglo-Saxon shires, it may be observed, having been originally principalities, nearly, if not altogether, independent, but gradually united into one kingdom, were rather tantamount to our Anglo-American states than to our counties, of which the Saxon hundreds may be taken as the equivalent; the tythings corresponding to our Anglo-American townships; while (to carry out the parallel) the central authority of the ____________ * See Forsyth's History of Trial by Jury, ch. iv. sec. 4. Ed. Note: Full Citation: William Forsyth (1812-1899), History of Trial by Jury (London: John W. Parker, 1852; reprinted, New York: Cockcroft & Co, 1878; reprinted, New York: B. Franklin, 1971; reprinted, New York: Lawbook Exchange, Ltd., 1994) Related Books by Forsyth: 1. Life of Marcus Tullius Cicero (New York: C. Scribner and Co, 1865) 2. Cases and Opinions on Constitutional Law, and Various Points of English Jurisprudence, Collected and Digested from Official Documents and Other Sources; with Notes (London: Stevens & Haynes, 1869) 3. The History of Lawyers, Ancient and Modern (New York, J. Cockcroft, 1875; reprinted Union, NJ: Lawbook Exchange, 1996) 4. Hortensius, the Advocate: An Historical Essay on the Office and Duties of an Advocate ((London, J. Murray, 1879; reprinted, Littleton, Col.: F. B. Rothman, 1882, reprinted 1982) -11- king and the wittenagemot may be considered as represented by our federal system generally. But though the reeve and the bishop presided in the local Anglo-Saxon courts, it was rather in the character of moderators than of judges; tbat latter function being performed by the freeholders of the county, all of whom, not less than the bishop and the reeve, had the right and were bound to give their attendance at thèse courts. "Suits," says Hume,*   "were determined in a summary manner, without much pleading, formality, or delay, by a majority of voices;†   and the bishop and alderman had no further authority than to keep order among the freeholders, and interpose with their opinion." These county courts, tbough traces of them are to be found in all the old Teutonic states of Europe, became ultimately peculiar to England. None of the feudal governments of continental Europe had any thing like them; and Hume, with his usual sagacity, has remarked that perhaps this institution had greater effects on the political system of England than has yet been distinctly pointed out. By means of this institution, all the freeholders were obliged to take a share in the conduct of affairs. Ed. Note: There was an economic basis for this type system. It is not uncommmon for political system writers to omit reference to the crucial fact, the economic basis of the politico-legal structure. With a sound economic system, lawsuits are ultra rare. When everyone is a landowner with a small farm, crime and other social ills leading to lawcases, are reduced to an ultra-rare minimum. Drawn from that individual and independent state, so distinctive of the feudal System, and so hostile to social order and the authority of law, they [all citizens] were made members of a political combination, and were taught in the ____________ * History of England, Appendix, I. † The decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal. -12- most effectual manner the duty and advantages of civic obedience by being themselves admitted to a share of civic authority. Perhaps, indeed, in this Anglo-Saxon institution of hundred and county courts we are to seek the origin of that system of local administration and self-government still more fully carried out in America than in England, by which English and Anglo-American institutions are so strongly distinguished from those of Europe, and in the judicious combination of which with a central administration, for matters of general concern, British and American liberty, as a practical matter, mainly consists. One of the first procedures of the Norman Conqueror, by way of fixing his yoke upon the shoulders of the English people, was gradnally to break down and belittle this local administration of justice. He [William the Conqureror] did not venture, indeed, to abolish institutions so venerable and so popular, but he artfully effected his purpose [power-motivated law manipulations] by other means. He began by separating the civil and ecclesiastical jurisdictions. The bishops, according to a fashion recently introduced on the continent [in Europe], were authorized to hold special courts of their own. These courts were at first limited to cases in which ecclesiastical questions were involved, or to which clergymen were parties; but by the progress of an artful system of usurpations, familiar to the courts of all ages and nations, they gradually extended their authority to many purely lay matters, under pretence that there was something about them of an ecclesiastical character. It was under this pretence that the English ecclesiastical courts assumed jurisdiction of the important matters of marriage and divorce, of wills, and of the distribution of the personal property of intestates—a jurisdiction which they still retain in England, and which, though we never had any -13- ecclesiastical courts in the United States of America, has left deep traces upon our law and its administration as to these subjects. In establishing these separate ecclesiastical courts, [William] the Conqueror made a serious departure from his leading idea of centralization; and he thereby greatly contributed to build up a distinct theocratic power, which afterwards, while intrenching on the rights of the laity, intrenched also very seriously on the authority of his successors on the throne. But this was a danger which either he did not foresee—since he possessed, though his next successor [William II.] relinquished it, the sole power of appointing bishops—or which he overlooked in his anxiety to diminish the importance of the old Saxon tribunals. Both the civil and criminal authority of the local courts was greatly curtailed. Their jurisdiction in criminal cases was restricted to small matters, and even as to questions of property was limited to cases in which the amount in dispute did not exceed forty shillings; though, considering the superior weight of the shilling at that time, the greater comparative value in those ages of the precious metals, and the poverty of the country, this was still a considérable sum. The general plan for the administration of justice of the Anglo-Norman government was a court baron in each of the baronies into which the kingdom was now parcelled out, to decide such controversies as arose between the several vassals or subjects of the same barony. Hundred courts and county courts still continued from the Saxon times, though with restricted authority, to judge between the subjects of different baronies; and a court composed of the king's great officers to give sentence among the barons themselves. Of this court, -14- which ultimately became known as Curia Regis, (King's Court,) and sometimes as Aula Regis, (King's Hall,) because it was held in the hall of thé king's palace, and of its instrumentality in extending the royal authority, Hume*   gives the following account: "The king himself often sat in his court, which always attended his person: he there heard causes and pronounced judgment; and though he was assisted by the advice of the other members, it is not to be imagined that a decision could easily be obtained contrary to his inclination or opinion.† "In the king's absence, the chief justiciary presided, who was the first magistrate of the state, and a kind of viceroy, on whom depended all the civil affairs of the kingdom.‡ "The other chief officers of the crown, the constable, marshal, seneschal, or steward, Chamberlain, treasurer, and chancellor, were members, together with such feudal barons as thought proper to attend, and the barons of the exchequer, who at first were also feudal barons appointed by the king. This court, which was sometimes called the King's Court, sometimes the Court of Exchequer, judged in all ____________ * History of England [1770], Appendix, II. † We may observe that even at present [1856], whether in England or America, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities. ‡ In the king's absence—and the Anglo-Norman kings were often absent on visits to their continental dominions—this chief justiciary acted in all respects as the king's substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. Such was the case with Ranulphus de Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise in Latin, On the Laws and Customs of the Kingdom of England, is the oldest book of the common law. He went with Richard I. on the third crusade, and was killed at the siege of Acre. -15- causes, civil and criminal, and comprehended the whole business which is now shared out among four courts—the Chancery, the King's Bench, the Common Pleas, and the Exchequer. "Such an accumulation of powers was itself a great source of authority, and rendered the jurisdiction of the court formidable to all the subjects; but the turn which judicial trials took soon after the [1066] conquest served still more to increase its authority, and to augment the royal prerogatives. "William, among the other violent changes which he attempted and effected, had introduced the Norman law into England, had ordered all the pleadings to be in that tongue, and had interwoven with the English jurisprudence all the maxims and principles which the Normans, more advanced in cultivation, and naturally litigious, were accustomed to observe in the administration of justice. "Law now became a science,*   which at first fell entirely into the hands of the Normans, and even after it was communicated to the English, required so much study and application that the laity of those ignorant ages were incapable of attaining it, and it was a mystery almost solely confined to the clergy, and chiefly to the monks. "The great officers of the crown, and the feudal barons who were military men, found themselves unfit to penetrate into these obscurities, and though they were entitled to a seat in the supreme judicature, the business of the court was wholly managed by the chief justiciary and the law barons, who were men appointed by the king, and entirely at bis disposal. ____________ * It might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties. -16- "This natural course of things was forwarded by the multiplicity of business which flowed into that court, and which daily augmented by the appeals from all the subordinate judicatures of the kingdom. "For the great power of [William] the Conqueror [1066-1087] established at first in England an authority which the monarchs in France were not able to attain till the reign of St. Louis, who lived [1226-1270] near two centuries after: he [William] empowered his court to receive appeals both from the courts of barony and the county courts, and by that means brought the administration of justice ultimately into the hands of the sovereign.* "And lest the expense or trouble of the journey to court should discourage suitors and make them acquiesce in the decision of the inferior judicatures, itinerant judges were afterwards established, who made their circuits through the kingdom and tried all cases that were brought before them. "By this expedient the courts of barony were kept in awe, and if they still preserved some influence it was only from the apprehensions which the vassals might entertain of disobliging their superior by appealing from his jurisdiction. "But the county courts were much discredited; and as the freeholders were found ignorant of the intricate principles and forms of the new law, the lawyers gradually brought all business before the king's judges, and abandoned that convenient, simple, and popular judicature." The innovations of the Conqueror and his successors having reduced the old local Anglo-Saxon tribunals to comparative insignificance, the whole judicial authority, except that which had been seized upon by the ecclesiastical courts, ____________ * Not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king's courts, by the writ of pone and others. -17- remained for a hundred and fifty years after the conquest concentrated in the Aula Regis. But as Norman and Saxon became thoroughly intermixed, with the first faint dawn of modern English liberty, the judicial power thus thoroughly centralized became again subdivided and distributed, though in a manner very different from that of the Saxon times. The Anglo-Norman kings of England were perpetually on the move: the only way of disposing of the products of the landed estates which scattered over England afforded the main part of the royal revenue, was to go thither with the royal household and consume it on the spot. Wherever the king went, the Aula Regis followed, occasioning thereby great inconvenience and delay to suitors. This was complained of as a grievance, and the barons who extorted Magna Charta [1215] from their reluctant sovereign [John] insisted, among other things, that Common Pleas, that is, civil suits between man and man, should be held in some certain place. It was in this provision of Magna Charta that originated the English Court of Common Pleas, which became fixed at Westminster Hall, the place of session of the Aula Regis when the king was in the vicinity of London. This Court of Common Pleas, or Common Bench as it was sometimes called, seems to have been at first but a mere committee of the Aula Regis; and the disintegration of that tribunal, thus begun, was, on the accession of Edward I. in 1272, completed by its resolution into three or rather five distinct tribunals. Of these new courts, that which more immediately represented the Aula Regis was the Court of King's Bench, which still continued to follow the king and to be held in his presence. In the language of its process, such is still supposed to be the case; but like the other English courts, it has long -18- since been fixed at Westminster Hall, and admits nobody to participate in its proceedings save its own members—a chief justice, who, though of inferior position in point of precedence, may be considered as in some respects the successor of the chief justiciary, which office was now abolished—and three or four puisne judges, the number having varied at different times. The Court of Common Pleas was now also organized like the King's Bench, with a chief justice and three or four puisne judges. As this court had exclusive jurisdiction of civil suits, (except those relating to marriage, divorce, wills, tithes, and the distribution of the personal property of intestates, which had been usurped by the ecclesiastical courts,) Pleas of the Crown, that is, the criminal jurisprudence of the realm, (except prosecutions for heresy, of which the ecclesiastical courts claimed jurisdiction,) and also the hardly less important duty of superintending the other tribunals, even the Common Pleas itself, and keeping them within their due limits, was assigned to the King's Bench. To a third court, that of Exchequer, of which, besides a chief baron and three or four puisne barons, the treasurer and the chancellor of the exchequer originally formed a part, were assigned all cases touching the king's revenue, and especially the collection of debts due to him, in which light were regarded not only all fines, forfeitures, and feudal dues, but the imposts and aids occasionally granted by Parliament. There was also a Court of Chivalry or "Honor Court," presided over by the constable and marshal, and having jurisdiction of all questions touching rank and precedency; and another, over which the steward of the household presided, to regulate the king's domestic servants; but these courts, -19- which have long since vanished, could never be considered as having stood on a par with the three others, the judges of which esteemed themselves the grand depositaries of the knowledge of the common or unwritten law of England; that is, of such customs and forms as had obtained the force of law previous to the existence of the regular series of statutes beginning with Magna Charta. Indeed, these judges of England, as they were called, were in the habit of meeting together in the Exchequer Chamber, for the purpose of hwaring arguments on law points of importance or difficulty, adjourned thither for their consideration, and which they decided by a majority of their whole number present, thus presenting down to the recent abolition, or rather modification, of the Court of Exchequer Chamber, a shadow, as it were, of the ancient Aula Regis. Already, previous to this fracture of the Aula Regis into the various courts above named, the legal profession, so far as practice in the lay courts was concerned, had begun to separate itself from the clerical; and places for the education and residence of a class of laymen who began to devote themselves to the study of the common law were established in the vicinity of Westminster Hall. Of these, Lincoln's Inn, founded at the commencement of the reign of Edward II., (about A. D. 1307,) under the patronage of William Earl of Lincoln, who gave up his own hostel or town residence for that purpose, was the earliest, and has always remained the principal. On this model were established before long the Inner and Middle Temple, (so called because a residence of the Knights Templars, forfeited by the dissolution of that order, had been devoted to this purpose,) Gray's Inn, Serjeant's Inn, and the Inns of Chancery. -20- Such was the origin of the profession of law as it still exists in England and America; of that body of lawyers whence all our judges are taken, arrogating to itself, after the example of the churchmen, of which it originally consisted, a certain mystical enlightenment and superiority, scouting [ridiculing] the idea that the laity, as the lawyers too affect to distinguish all persons not of their cloth,—in plain English, the people,—should presume to express or to entertain any independent opinion upon matters of law, or that any body not a professional lawyer can possibly be qualified for the comprehension, and much less for the administration, of justice. In the [pre-1066] Anglo-Saxon courts the parties had appeared personally, and pleadings had been oral. The Anglo-Norman practice gave rise to appearance by attorney in all civil cases, and to that system of special written pleadings, prepared by counsel learned in the law [manipulations], of which the operation was to give the victory to ingenuity and learning rather than to right, and which, after undergoing many modifications, has at length [by 1850's] been abolished in many of our Anglo-American states, as an impediment to justice and an intolerable nuisance [though later, in 20th century, much restored]. Even in conservative England itself, though the system of special pleadings, greatly modified by modern changes, still exists, the recent [by 1850's] return, by the examination of the parties, to the old popular System of oral pleading has been attended by the happiest results. The preparation of these written pleadings, by which we are here to understand not arguments, but allegations of facts relied upon by the respective parties, was engrossed by the serjeants at law, whose distinguishing badge was a coif or velvet cap—wigs being a comparatively modem invention. [Law School Was 7 - 16 Years, Vs Mere 3 Now] To obtain admittance into this order [serjeant at law], by which the entire practice -21- of the Court of Common Pleas was engrossed, (that is, originally, the entire practice in civil suits,) and from which the judges were exclusively selected, sixteen years' study was required. The degree of barrister, or, as it was called, of apprentice, might be obtained by seven years' study; and it was to these two classes of serjeants and apprentices that the practice in the courts of Westminster Hall was originally confined.* But subsequently there sprang up a third inferior and still more numerous class, called attorneys, a sort of middle-men between the client and his counsel, not permitted to speak in court, for which purpose they must retain a serjeant or barrister, but upon whom was shifted off all the drudgery and responsibility of preparing the case, in which, however, no step of consequence could be taken without the advice of counsel learned in the law, i.e., a serjeant or barrister.† As the law and its practice thus became more and more a mystery, only to be learned by frequenting the courts of Westminster Hall, and by the study of the obscure and ill-prepared reports of their proceedings, which began now to be compiled by official reporters, and published under the name of Year Books, the old local Anglo-Saxon courts fell still more into contempt. Already in the reign of Henry III. the free-holders had been released from their obligation of attendance ____________ * Originally, and down to a comparatively recent period, the Inns of Court were real schools, "readers" or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. Now the examination is a mere form, and the student seeks instruction where he pleases. Even the nominal term of study [by 1840's - 1850's] has been reduced to five, and in some cases to three years. † This distinction between attorneys and barristers, though still in full vogue in England and in several of the British colonies, is not recognized in the United States, where, indeed, it never had but a feeble and transient existence. -22- upon them, and another blow was given to these ancient tribunals when, in the reign of Edward II., the appointment of sheriffs, hitherto chosen by the freeholders, was assumed by the crown; and still another when, in the following reign [Edward III], the election of conservators of the peace was also taken from the people and assumed by the king. To the magistrates thus appointed by the king the new name of Justices of the Peace was soon afterwards given, and the criminal jurisdiction conferred upon tbem, whether acting singly as examining and committing magistrates, or met together at the courts of Quarter Sessions, gradually superseded the small remains of criminal authority hitherto left to the old popular tribunals. Two circumstances, however, combined to transfuse a certain portion of the spirit of these old tribunals into the newly established courts, thus standing in the way of the entire monopoly of the administration of justice at which the lawyers aimed, and securing to the body of the people a certain participation in the most important function of the government, to wit, the administration of justice; which participation, derived from the old Anglo-Saxon customs, and transmitted to our times, constitutes to-day the main pillar of both British and American liberty. Contemporaneously with thw new organization above described of the courts of common law, the British Parliament had taken upon itself that organization which it still [1856] retains—an upper house, (House of Lords,) composed of great nobles and bishops,*   successor of the Anglo-Saxon Wittenagemote and of the Anglo-Norman Great Council, and a lower house, ____________ * Down to the period of the reformation, the abbots of the greater monasteries sat also in this house. -23- (pp 24-31) While the common law courts, through their preference of technicalities to justice, thus enabled the chancellors to assume a civil jurisdiction by which they themselves were completely overshadowed, driving the Parliament also to the necessity of creating, for both civil and criminal matters, a new Court of Admiralty,*   they gave at the same time the support of their acquiescence and silence to other innovations, prompted not by public convenience, but by the very spirit of tyranny. In every reign, at least from the time of Henry VI. [1399] down to that of Charles I. [1628], torture to extort confessions from those charged with state crimes was practised under warrants from the Privy CounciL In the year 1615, by the advice of Lord [Francis] Bacon, then attorney general, the lustre of whose philosophical reputation is so sadly dimmed by the infamy of his professional career, torture of the most ruthless character was employed upon the person of [Mr.] Peacham, a clergyman between sixty and seventy years of age, to extort confessions which might be used against him in a trial for treason, as to his intentions in composing a manuscript sermon not preached nor shown to any body, but found on searching his study, some passages of which were regarded as treasonable, because they encouraged resistance to illegal taxes. Thirteen years afterwards, when it was proposed to torture Fenton, the assassin of [George] Villiers, Duke of Buckingham, to extort from him a confession of his accomplices, the prisoner [Defendant Fenton] suggested that if tortured he might perhaps accuse Archbishop [of Canterbury William] Laud [1573-1645] him- ____________ * Both these courts proceeded according to the forms of the civil law, and without a Jury. But occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of Henry VIII. the trial of all maritime felonies before the Admiralty Court was directed to be by jury. -32- self. Upon this, some question arose as to the legality of torture; and the judges being called upon for their advice, thus at length driven to speak, delivered a unanimous opinion that the prisoner [Defendant Fenton] ought not to be tortured, because no such punishment was known or allowed by the English law; which English law, it now appeared, had for two hundred years been systematically disregarded under the eye and by the advice of judges and sworn lawyers, members of the Privy Council, and without any protest or interference on the part of the courts! Ed. Note: Long continued abuses were cited in the slavery era. Another instance of similar acquiescence occurred in regard to the Court of Chivalry, which in the reign of Charles I. undertook to assume jurisdiction in the case of words spoken. Thus a citizen was ruinously fined by that court because, in an altercation with an insolent waterman, who wished to impose upon him, he deridingly called the swan on his badge a "goose." The case was brought within the jurisdiction of the court, by showing that the waterman was an earl's servant, and that the swan was the earl's crest, the heavy fine being grounded on the alleged "dishonoring" by the citizen of this nobleman's crest. A tailor, who had often very submissively asked payment of his bill from a customer of "gentle blood" whose pedigree was duly registered at the herald's college, on a threat of personal violence for his importunity, was provoked into saying that "he was as good a man as his debtor." For this offence, which was alleged to be a levelling attack upon the aristocracy, he was summoned before the earl marshal's court, and mercifully dismissed with a reprimand—on releasing the debt! No aid could be obtained from the common law courts against this scandalous usurpation, by which, without any -33- (pp 34-35) attempts at the establishment of despotism; and that struggle is precisely the one now going on among us here in America [against unconstitutional slavery], with this sole difference, that over the water, among our British forefathers, it was the despotism of a monarch that was sought to be established; here in America, the [unconstitutional] despotism of some two hundred thousand petty tyrants, more or less, in the shape of so many slaveholders, who, not content with lording it over their several plantations, are now attempting, by combination among themselves, and by the aid of a body of northern tools and mercenaries, such as despots always find, to lord it over the Union, and to establish the policy of slaveholding as that of the nation. In Great Britain, the struggle between despotism and free institutions closed with the revolution of 1688, with which these biographies terminate. Since that time the politics of that country have consisted of hardiy more than of jostlings between the Ins and the Outs, with no very material variance between them in their social ideas. Among us the great struggle between slaveholding despotism and republican equality has but lately come to a head, and yet remains undetermined. It exhibits, especially in the conduct of the courts and the lawyers, many parallels to the similar struggle formerly carried on in Great Britain. That struggle terminated at last with the deposition [ouster] and banishment of the Stuart family, and the reëstablishment in full vigor of the ancient liberties of England, as embodied in the Bill of Rights. And so may ours terminate, in the reduction of those who, not content with being brethren seek to be masters, to the republican level of equal and common citizenship, and in the reëstablishment of emancipation, freedom, and the Rights of Man proclaimed in our Declaration of Independence, as the national and eternal policy of these United States. -36- ATROCIOUS JUDGES. CHAPTER I. ROGER LE BRABACON. [c. 1306 - 1315] ROGER LE BRABACON,*   from the part he took in settling the disputed claim to the crown of Scotland, is an historical character. Ed. Note: Remember the movie "Braveheart"? This chapter gives the story behind the movie! His [Judge Brabacon's] ancestor, celebrated as "the great warrior," had accompanied [William] the Conqueror in the [1066] invasion of England, and was chief of one of those bands of mercenary soldiers then well known     in Europe under the names (for what reason historians are not agreed)     of Routiers, Cottereaux, or Brabançons.† Being rewarded with large possessions in the counties of Surrey and Leicester, he founded a family which flourished several centuries in England, and is now represented in the male line by an Irish peer, the tenth Earl of Meath. ____________ *The name is sometimes spelt Brabaçon, Brabançon, Brabason, and Brabanson. * Hume, who designates them "desperate ruffians," says "troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another; they often acted in an independent manner, and under leaders of their own. The greatest monarchs were not ashamed, on occasion, to have recourse to their assistance; and as their habits of war and depredation had given them experience, hardness, and courage, they generally composed the most formidable part of those armies which decided the political quarrels of princes." —Vol. i. 438. In America we have no mercenary soldiers, but plenty of mercenary politicians, almost as much to be dreaded. — Ed. -37- The subject [Brabacon] of the present sketch, fifth in descent from "the great warrior," changed the military ardor of his race for a desire to gain distinction as a lawyer. He was regularly trained in all the learning of "Essions" and "Assizes," and he had extensive practice as an advocate under Lord Chief Justice de Hengham. On the sweepiug removal of almost all of the judges in the year 1290,*   he [Brabacon] was knighted, and appointed a puisne justice of the King's Bench, with a salary—which one would have thought must have been a very small addition to the profits of his hereditary estates—of 33£. 6s. 8d. a year. He proved a most admirable judge;†   and, in addition to his professional knowledge, being well versed in historical lore, he was frequently referred to by the government when negotiations were going on with foreign states. ____________ * They were removed because during the king's absence on the continent, they had been guilty of taking bribes, and other misdemeanors. Of De Wayland, one of their number, and the first chief justice of the Common Pleas, Lord Campbell gives the following account: When arrested, on the king's return from Aquitaine, conscious of his guilt, he [De Wayland] contrived to escape from custody, and, disguising himself in the habit [clothing] of a monk, he was admitted among friars-minors in a convent at Bury St. Edmund's. However, being considered a heinous offender, sharp pursuit was made after him, and he was discovered wearing a cowl and a serge jerkin. According to the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. At the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. Still it would have been deemed sacrilegious to take him from his asylum by violence; but the lord chief justice [De Wayland] preferred surrendering himself to perishing from want [starvation]. He was immediately conducted to the Tower of London. Rather than stand a trial, he petitioned for leave to abjure the realm; this favor was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the crown. Having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side at Dover, he was put on board a ship and departed to foreign parts. He is said to have died in exile, and he left a name often quoted as a reproach to the bench till he was superseded by Jeffreys and Scroggs. † That is, in the ordinary discharge of his duties. His attempt to take away the liberties of the Scotch [nation] we shall presently see [p 39].—Ed. -38- Edward I. [1272-1307], arbitrator [c 1291] by mutual consent between the aspirants to the crown of Scotland, resolved to set up a claim for himself as liege lord of that kingdom, and Brabacon was employed, by searching ancient records, to find out any plausible grounds on which the claim could be supported. He [Brabacon] accordingly travelled diligently both through the Saxon and Norman period, and—by making the most of military advantages obtained by kings of England over kings of Scotland, by misrepresenting the nature of homage which the latter had paid to the former for possessions held by them in England, and by blazoning the acknowledgement of feudal subjection extorted by Henry II. [1154-1189] from William the Lion [1165-1214] when that prince was in captivity, without mentioning the express renunciation of it by Richard I. [1189-1199]—he [Brabacon] made out a case which gave high delight to the English court. Edward [1272-1307] immediately summoned a Parliament to meet at Norham, on the south bank of the Tweed, marched thither at the head of a considerable military force, and carried Mr. Justice Brabacon along with him as the exponent and defender of his new suzeraineté. It is a little curious that one of these competitors for the Scottish throne had lately been an English judge, and a competitor for the very place to which Brabacon, for his services on this occasion, was presently [thereafter, p 47] promoted. From the time of William the Conqueror [1066-1087] and Malcolm Canmore [1058-1093], until the desolating wars occasioned by the dispute respecting the right of succession to the Scottish crown, England and Scotland were almost perpetually at peace; and there was a most familiar and friendly intercourse between the two kingdoms, insomuch that nobles often held possession in both, and not unfrequently passed from the service of the one government into that of the other. The Norman knights, -39- having conquered England by the sword, in the course of a few generations got possession of a great part of Scotland by marriage. They were far more refined and accomplished than the Caledonian thanes; and, flocking to the court of the Scottish kings, where they made themselves agreeable by their skill in the tournament, and in singing romances, they softened the hearts and won the hands of all the [Scottish] heiresses. Hence the Scottish nobility are [1856] almost all of Norman extraction; and most of the great families in that kingdom are to be traced to the union of a Celtic heiress with a Norman knight. Robert de Brus, or Bruis, (in modem times spelt Bruce,) was one of the companions of [William] the Conqueror; and having particularly distinguished himself in the battle of Hastings, his prowess was rewarded with no fewer than ninety-four lordships, of which Skelton, in Yorkshire, was the principal. Robert, the son of the first Robert de Brus, married early, and had a son, Adam, who continued the line of De Brus of Skelton. But becoming a widower while still a young man, to assuage his grief, he paid a visit to Alexander I., then [1107-1124] King of Scots, who was keeping his court at Stirling. There the beautiful heiress of the immense lordship of Annandale, one of the most considerable fiefs held of the crown, fell in love with him; and in due time he [Adam de Brus] led her to the altar. A Scottish branch of the family of De Brus was thus founded under the designation of Lords of Annandale. The fourth in succession was "Robert the Noble," and he raised the family to much greater consequence by a royal alliance, for he married Isabel, the second daughter of Prince David, Earl of Huntingdon, grandson of David I. [1124-1153], sometimes called St. David. Robert, son of "Robert the Noble" and the Scottish -40- princess, was born at the Castle of Lochmaben, about the year 1224. The Skelton branch ofthe family still flourished, although it became extinct in the next generation. At this time a close intercourse was kept up between "Robert the Noble" and his Yorkshire cousins; and he sent his heir to be educated in the south under their auspices. It is supposed that the youth studied at Oxford; but this does not rest on any certain authority. In 1245, his father died, and he succeeded to the lordship of Annandale. One would have expected that he would now have settled on his feudal principality, exercising the rights of furca et fossa, or "pit and gallows," which he possessed without any limit over his vassals; but by his English education he had become quite an Englishman, and, paying only very rare visits to Annandale, he sought preferment at the court of Henry III. What surprises us still more is, that he took to the gown, not the sword; and instead of being a great warrior, like his forefathers and his descendants, his ambition seems to have been to acquire the reputation of a great lawyer. There can be little doubt that he practised as an advocate in Westminster Hall from 1245 till 1250. In the latter year we certainly know that he took his seat on the bench as a puisne judge, or justiciar; and, from thence till 1263, extant records prove that payments were made for assizes to be taken before him—that he actcd with other justiciars in the levying of fines—and that he went circuits as senior judge of assize. In the 46th year of Henry III., he had a grant of 40£. a year salary, which one would have supposed could not have been a great object to the Lord of Annandale. In the barons' wars, he was always true to the king; and although he had no taste for thc military art, he accompanied his royal master into the -41- field, and was taken prisoner with him at the battle of Lewes. The royal authority being reëstablisbed by the victory at Evesham, he resumed his fonctions as a puisne judge; and for two years more there are entries proving that he continued to act in that capacity. At last, on the 8th of March, 1268, 52 Henry III., he was appointed "capitalis justiciarius ad placita coram rege tenenda," (chief justiciary for holding pleas before thé king); but unless his fees or presents were very high, he must have found the reward of his labors in his judicial dignity, for his salary was very small. Hugh Bigod and Hugh le Despencer had received 1000 marks a year, "ad se sustentandum in officio capitalis justitiarii Anglise," (for sustaining themselves in the office of chief justice of England,) but Chief Justice de Brus was reduced to 100 marks a year; that is, 66£, 13s, 4d. Yet such delight did he take in playing the judge, that he quietly submitted both to loss of power and loss of profit. He remained chief justice till the conclusion [1272] of this reign, a period of four years and a half, during which he alternately went circuits and presided in Westminster Hall. None of his decisions have come down to us, and we are very imperfectly informed respecting the nature of the cases which came before him. The boundaries ofjurisdiction between the Parliament, the Aula Regis, and the rising tribunal afterwards called the Court of King's Bench, seem to have been then very much undefined. On the demise of the crown [Henry III.], Robert de Brus was desirous of being reappointed. He was so much mortified by being passed over, that he resolved to renounce England forever; and he would not even wait to pay his duty to Edward I., now returning from the holy wars. -42- The ex-chief justice [Robert de Brus] posted off for his native country, and established himself in his castle of Lochmaben, where he amused himself by sitting in person in his court baron, and where all that he laid down was, no doubt, heard with reverence, however lightly his law might have been dealt with in Westminster Hall. Occasionally he paid visits to the court of his kinsman, Alexander III. [1249-1286], but he does not appear to have taken any part in Scottish politics till the untimely [horse riding accident] death of that monarch, which, from a state of peace and prosperity, plunged the country [Scotland] into confusion and misery [e.g., war to repel England's conquest attempts]. There was now only the life of an infant female [Margaret (1283-1290)], residing in a distant land [Norway], between him and his plausible claim to the Scottish crown. He [Robert de Brus] was nominated one of the negotiators for settling the marriage between her and the son of Edward I., which, if it had taken place, would have entirely changed the history of the island of Great Britain. From his [de Brus'] intimate knowledge both of Scotland and England, it is probable that the "Articles" were chiefly of his framing, and it must be allowed [admitted] that they are just and equitable. For his own interest, as well as for the independence of his native country, he took care to stipulate that, "failing Margaret and her issue, the kingdom of Scotland should return to the nearest heirs, to whom of right it ought to return, wholly, freely, absolutely, and without any subjection." The Maid of Norway [Margaret] having died on her [1290] voyage home, the ex-chief justice [de Brus] immediately appeared at Perth with a formidable retinue, and was in hopes of being immediately crowned king at Scone;—and he had nearly accomplished his object, for John Baliol, his most formidable competitor in point of right, always feeble and remiss in action, was absent in England. But, from the vain wish to prevent future dis- -43- putes by a solemn decision of the controversy after all parties should have been heard, the Scotch nobility in an evil hour agreed to refer it, according to the fashion of the age, to the arbitration of a neighboring sovereign, and fixed upon Edward I. of England, their wily neighbor. The Scottish nobles being induced to cross the River Tweed, and to assemble in the presence of Edward, under pretence that he was to act only as arbitrator, Sir Roger de Brabacon by his order addressed them in French, (the language then spoken by the upper classes both in Scotland and England,) disclosing the alarming pretensions about to be set np. A public notary and witnesses were in attendance, and in their presence the assumed vassals were formally called upon to do homage to Edward as their suzerain, of which a record was to be made for a lasting memorial. The Scots saw too late the imprudence of which they had been guilty in choosing such a crafty and powerful arbitrator. For the present they refused the required recognition, saying that "they must have time for deliberation, and to consult the absent members of their different orders." Brabacon, after advising with the king [Edward I.], consented that they should have time until the following day, and no longer. They insisted on further delay, and showed such a determined spirit of resistance, that their request vas granted; and the first day of June following was fixed for the ceremony of the recognition. Brabacon allowed them to depart; and a copy of his paper, containing the proofs of the alleged superiority and direct dominion of the English kings over Scotland, was put into their hands. He then returned the south, where his presence was required to assist in the administration of justice, leaving the Chancellor Burnel to complete the transaction. Although -44- the body [majority] of the Scottish nobles, as well as the body of the Scottish people, would resolutely have withstood the demand, the competitors for the throne, in the hopes of gaining Edward's favor, successively acknowledged him as their liege lord, and their example was followed by almost the whole of those who then constituted the Scottish Parliament.* Bruce afterwards pleaded his own cause with great dexterity, and many supposed that he would succeed. Upon the doctrine of representation, which is familiar to us, Balliol seems clearly to have the better claim, as he was descended from the eldest daughter of the Earl of Huntingdon: but Bruce was one degree nearer the common stock; and this doctrine, which was not then firmly established, had never been applied to the descent of the crown. When Edward I. [1272-1306] determined in favor of Balliol, influenced probably less by the arguments in his favor than by the consideration that from the weakness of his character he was likely to be a more submissive vassal, Robert de Brus complained bitterly that he was wronged, and resolutely refused to acknowledge the title of his rival. He retired in disgust to his castle of Lochmaben, where he died in November, 1295. While resident in England, he had married Isabel, daughter of Gilbert de Clare, Earl of Gloucester, by whom he had several sons. Robert, the son of Robert the eldest, became Robert I. [1306-1329] of Scotland, and one of the greatest of heroes. When judgment had been given in favor of Balliol, Brabacon was still employed to assist in the plan which had been ____________ * Just like our northem candidates for the presidency [Millard Fillmore, Franklin Pierce, James Buchanan], and the dough-face politicians [Stephen O. Douglas] who contrive to get chosen to Congress by northern constituencies, whose rights they then barter away and betray.—Ed. -45- formed to bring Scotland into entire subjection. There being a meeting at Newcastle of the nobles of the two nations, when the feudatory king did homage to his liege lord, complaint was made, by Roger Bartholomew, a burgess of Berwick, that certain English judges had been deputed to exercise jurisdiction on the north bank of the Tweed [river]. Edward referred the matter to Brabacon and other commissioners, commanding them to do justice according to the laws and customs of his kingdom. A petition was then presented to them on behalf of the King of Scotland, setting forth Edward's promise to observe the laws and customs of that kingdom, and that pleas of things done there should not be drawn to examination elsewhere. Brabacon is reported thus to have answered:— "This petition is unnecessary, and not to the purpose; for it is manifest, and ought to be admitted by all the prelates and barons, and commonalty of Scotland, that the king, our master, has performed all his promises to them. "As to the conduct of his judges, lately deputed by him as SUPERIOR and DIRECT LORD of that kingdom, they only represent his person; he will take care tbat they do not transgress his authority, and on appeal to him he will see that right is done. "If the king had made any temporary promises when the Scottish throne was vacant, in derogation of his just suzeraineté, by such promises he would not have been restrained or bound."* Encouraged by this [corrupt] language, Macduff, the Earl of Fife, ____________ *This is the very ground upon which it is attempted, now [1850], to justify the repeal of the Missouri prohibition [1820] of slavery, while Brabacon's defence of English judges in Scotland is a counterpart to the justification by our federal judges of the authority given [by an 1850 law] to slave-catching commissioners.—Ed. -46- entered an appeal in the English House of Lords against the King of Scotland; and, on the advice of Brabacon and the other judges, it was resolved that the respondent must stand at the bar as a vassal, and that, for his contumacy, three of his principal castles should be seized into the king's hands. Although historians who mention these events designate Brabacon as "grand justiciary," it is quite certain that, as yet, he was merely a puisne judge; but there was a strong desire to reward him for his services, and, at last, an opportune vacancy arising, he was created chief justice of the King's Bench. Of his performances in this capacity we know nothing, except by the general commendation of chroniclers; for the [English] Year Books, giving a regular account of judicial decisions, do not begin till the following reign. On the accession of Edward II. [1307], Brabacon was reappointed chief justice of the King's Bench, and he continued very creditably to fill the office for eight years longer. He was fated to deplore the fruitless result of all his efforts to reduce Scotland to the English yoke—Robert Bruce [1306-] being now the independent sovereign of that kingdom, after humbling the pride of English chivalry in the battle of Bannockburn [24 June 1314].* At last, the infirmities of age unfitting Brabacon for the discharge of judicial duties, he resigned his gown; but, to do him honor, he was sworn a member of the Privy Council, and he continued to be treated with the highest respect till his death, which happened about two years afterwards. ____________ *May the pending attempts of the Southern States, countenanced and supported by the federal judges, to establish a "superiority" and "direct dominion" over the north, be met and repelled with similar spirit and success!—Ed. -47- CHAPTER II. ROBERT TRESILIAN. [___-1388] WE next come to a chief justice who actually suffered the last [ultimate] penalty of the law—and deservedly—in the regular administration of retributive justice—Sir Robert Tresilian—hanged at Tyburn. I can find nothing respecting his origin or education, except a doubtful statement that he was of a Cornish family, and that he was elected a fellow of Exeter College, Oxford, in 1354. The earliest authentic notice of him is at the commencement of the reign of Richard II. [1377], when he was made a serjeant at law, and appointed a puisne judge of the Court of King's Bench. The probability is, that he had raised himself from obscurity by a mixture of good and evil arts. He showed learning and diligence in the discharge of his judicial duties; but, instead of confining himself to them, he mixed deeply in politics, and showed a determination, by intrigue, to reach power and distinction. He devoted himself to De Vere, the favorite of the young king, who, to the great annoyance of the princes of the blood, and the body of the nobility, was created Duke of Ireland, was vested for life with the sovereignty of that island, and had the distribution of all patronage at home. By the influence of this minion, Tresilian, soon after the melancholy end of Sir John Cavendish,* was appointed chief justice of the King's Bench; and ____________ * He had been murdered by a body of insurgent peasants headed by Jack Straw, one of the leaders in Wat Tyler's [1381] insurrection [to obtain fair treatment].—Ed. -48- he was sent into Essex to try the rebels. The king accompanied him. It is said that, as they were journeying, "the Essex men, in a body of about 500, addressed themselves barefoot to the king for mercy, and had it granted upon condition that they should deliver up to justice the chief instruments of stirring up the rebellion; which being accordingly done, they were immediately tried and hanged, ten or twelve on a beam, at Chelmsford, because they were too many to be executed after the usual manner, which was by beheading." Tresilian now gained the good graces of Michael de la Pole, the lord chanceller, and was one of the principal advisers of the measures of the govemment, being ever ready for any dirty work that might be assigned to him. In the year 1385, it was hoped that he might have got rid, by an illegal sentence, of John of Gaunt [1340-1399, son of Edward III], who had become very obnoxious to the king's [Richard II] favorites. But the [corrupt judicial] plot got wind, and the Duke, flying to Pontefract Castle, fortified himself there till his [Lancaster] retainers came to his rescue. In the following year [1386], when there was a change of ministry, Tresilian was in great danger of being included in the impeachment which proved the ruin of the chancellor; but he ecaped by an intrigue with the victorious party, and he was suspected of having secretly suggested the commission signed by Richard, and confirmed by Parliament, under which the whole power of the state was transferred to a commission of fourteen barons. He remained very quiet for a twelvemonth [year], till he thought that he perceived the new ministers falling into unpopularity, and he then advised that a bold effort should be made to crush them. Meeting with encouragement, he secretly left London, and, being joined by the Duke of -49- (pp 50-59) overcome with grief, that she fell down in a swoon as if she had been dead. Immediately [1388] Tresilian is put upon an hurdle [execution vehicle], and drawn through the streets of the city, with a wonderful concourse [large group] of people following him. At every furlong's end he was suffered [allowed] 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 confesser, 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 be was up, he said, 'So long as I do wear any thing upon me, I shall not die;' wherefore the executioner stript him, and found certain images painted like to the signs of the heavens, and the head of a devil painted, and the names of many of the devils wrote in parchment; these being taken away he was hanged up naked, and after he had hanged some time, that the spectators should be sure he was dead, they cut his throat, and because the night approached they let him hang till the next moming, and then his wife, having obtained a licence of the king, took down his body, and carried it to the Gray-Friars, where it was buried." Considering the violence of the times, Tresilian's conviction and execution cannot be regarded as raising a strong presumption against him; but there seems little doubt that he flattered the vices of the unhappy Richard; and historians agree that, in prosecuting his personal aggrandizement, he was utterly regardless of law and liberty. He died unpitied, and, notwithstanding the "historical doubts" by which we are beset, no one has yet appeared to vindicate his memory. -60- CHAPTER III. THOMAS BILLING. [____-1482] THE crown of England, transferred on the deposition of Richard II.* in 1399 to the Lancaster family in the person of Henry IV., was worn successively by him and by his son and grandson, Henry V. and Henry VI. After the lapse, however, of sixty-two years [1399-1461], the imbecility of Henry VI. enabled the Legitimist or Yorkist party to triumph by placing Edward IV. on the throne. At this time Sir John Fortescue [1394-1476], an able man and distinguished by his treatise De Laudibus Legum Angliæ, (Praises of the Laws of England,) was chief justice of the King's Bench [1442 - c 1461]; Ed. Note: Full Citation: Sir John Fortescue [1394-1476], De Laudibus Legum Angliae [A Treatise in Praise of the Laws of England] (Amsterdam: Theatrum Orbis Terrarum, 1567; reprinted, London: Richarde Tottell, 1573; reprinted, London: T. Wight and B. Norton, 1599; reprinted, London, Companie of Stationers, 1616; reprinted, London: Abel Roper, 1660; reprinted, London: John Streater, Eliz. Flesher and H. Twyford, 1672; reprinted, London: D. Browne, 1741; reprinted, London: T. Evans, 1775; reprinted, Cambridge: J. Butterworth, 1825; reprinted, Cincinnati, R. Clarke & Co., 1874; reprinted, Birmingham, Ala.: Legal Classics Library, 1874 & 1984; reprinted, London: Sweet and Maxwell, 1917; reprinted, Holmes Beach, Fla.: Wm. W. Gaunt, 1917, 1942, 1986 & 1998; reprinted, Cambridge: University Press, 1942 & 1949; reprinted, Westport, Conn.: Hyperion Press, 1942, 1979; reprinted, New York: Garland Pub., 1942, 1979; reprinted, New York: Da Capo Press, 1969) Related Book by Fortescue: The Governance of England: Otherwise Called the Difference Between an Absolute and a Limited Monarchy (London: E. Parker and T. Ward, 1714 & 1719; reprinted, Oxford: Clarendon Press, 1885; reprinted, London: Oxford University Press, 1885; reprinted, Westport, Conn.: Hyperion Press, 1885 and 1979; reprinted, London: H. Milford, 1885 reprinted, London: Humphrey Milford, 1926 reprinted, Union, N.J.: Lawbook Exchange, 1885 and 1999; reprinted, Cambridge; New York: Cambridge University Press, 1997) but [Fortescue] being an ardent Lancastrian, and having written pamphlets to prove that Richard II. was rightly de- ____________ *The persistence of Richard II. in the same arbitrary principles of which the advocacy cost Tresilian his life, caused his deposition a few years afterwards, as to which, Lord Campbell observes,— "While we honor [John] Lord Somers and the patriots who took the most active part in the revolution of 1688, by which a king [James II.] was cashiered, hereditary right was disregarded, and a new dynasty was placed on the throne, we are apt to consider the kings of the house of Lancaster [Henry IV, V, and VI] as usurpers, and those who sided with them as rebels. "Yet there is great difficulty in justifying the [1688] deposition of James II., and condemning the [1399] deposition of Richard II. "The latter sovereign, during a reign of above twenty years [1377-1399], had proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppression; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather [Edward II and III], was now almost unanimously resolved to submit no longer to his rule." -61- 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 questioned, he was by no means the man to suit the new dynasty. He [Chief Justice Fortescue] was removed to make way for Sir John Markham, who had been for nineteen years a puisne judge of the same court, and who, though he had not ventured to publish any thing on the subject, yet in private conversation and in "moots" at the Temple, such as that in which the white and red roses were chosen as the emblems of the opposite opinions, did not hesitate to argue for indefeasible hereditary right, which no length of possession could supersede, and to contend that the true heir of the crown of England was Richard, Duke of York, descended from the second son of Edward III. His sentiments were well known to the Yorkist leaders, and they availed themselves of the legal reasoning and the historical illustrations with wbich he furnished them; but he never sallied forth into the field, even when, after the death of Richard, the gallant youth his eldest son displayed the high qualities which so wonderfully excited the energy of his partisans. However, when Henry VI. was confined as a prisoner in the Tower, and Fortescue and all the Lancastrian leaders had fled, Markham was very naturally and laudably selected for the important office of chief justice of the King's Bench. Although he was such a strong Legitimist, he was known not only to be an excellent lawyer, but a man of honorable and independent principles. The appointment, therefore, gave high satisfaction, and was considered a good omen of the new regime. He held the office above seven years [c 1469- c 1477], with unabated credit. Not only was his hand free from bribes, but so was his mind -62- from every improper bias. It was allowed [admitted] that when sitting on the bench, no one could have discovered whether he was Yorkist or Lancastrian; the adherents of the reigning dynasty complaining (I dare say very unjustly) that, to obtain a character for impartiality, he showed a leaning on the Lancastrian side.* At last, though he cherished his notions of hereditary right with unabating constancy, he forfeited his office because he would not prostitute it to the purpose of the king and the ministers in wreaking their vengeance on the head of a political opponent. Sir Thomas Cooke, who inclined to the Lancastrians, though he had conducted himself with great caution, was accused of treason and committed to the Tower. To try him a special commission was issued, over which Lord Chief Justice Markham presided, and the government was eager for a conviction. But all that could be proved against the prisoner was, that he entered into a treaty to lend, on good security, a sum of 1000 marks for the use of Margaret, the queen of the dethroned Henry VI. The security was not satisfactory, and the money was not advanced. The chief justice ruled that this did not amount to treason, but was at most misprision of treason. Of this last offence the prisoner being found guilty, he was subjected to fine and imprisonment; but he saved his life and his lands. King Edward IV. was in a fury, and swearing that Markham, notwithstanding his high pretensions to loyalty, was himself little better than a traitor, ordered that ____________ * 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, hoth of them favored the house of Justice in matters betwixt party and party." -63- (pp 64-75) Chief Justice Billing answered in the affirmative. Therefore a unanimous verdict of guilty was given, and sentence of death was pronounced in the usual form. I dare say Billing would not have hesitated in declaring his opinion that the beheading might be commuted to drowning in a butt of malmsey wine; but this story of Clarence's exit, once so current, is now generally discredited, and the belief is that he was privately executed in the Tower, according to his sentence. Lord Chief Justice Billing enjoyed the felicitous fate accorded to very few persons of any distinction in those times—that he never was imprisoned, that he never was in exile, and that he died a natural death. In the spring of the year 1482 [during Edward IV's reign], he was struck with apoplexy, and he expired in a few days—fulfilling his vow—for he remained to the last chief justice of the King's Bench, after a tenure of office for seventeen years, in the midst of civil wars and revolutions. He [Thomas Billing] amassed immense wealth, but dying childless, it went to distant relations, for whom he could have felt no tenderness. Notwithstanding his worldly prosperity, few would envy him. He might have been feared and flattered, but he could not have been beloved or respected, by his contemporaries; and his name, contrasted with those of Fortescue and Markham, was long used as an impersonation [a symbol] of the most hollow, deceitful, and selfish qualities which can disgrace mankind. -75- CHAPTER IV. JOHN FITZJAMES.. [____-1539] OF obscure birth, and not brilliant talents, Sir John Fitzjames made his fortune by his great good humor, and by being at college with [Thomas] Cardinal Wolsey [1475-1530]. It is said that Fitzjames, who was a Somersetshire man, kept up an intimacy with Wolsey when the latter had become a village parson in that county; and that he was actually in the brawl at the fair when his reverence, having got drunk, was set in the stocks by Sir Amyas Paulet. While Wolsey tried his luck in the church, with little hope of promotion, Fitzjames was keeping his terms in the inns of court; but he chiefly distinguished himself on gaudy days, by dancing before the judges, playing the part of "Abbot of Misrule," and swearing strange oaths—especially by St. Gillian, his tutelary saint. His agreeable manners made him popular with the "readers" and "benchers;" and through their favor, although very deficient in "moots" and "bolts," he was called to the outer bar. Clients, however, he had none, and he was in deep despair, when his former chum [Wolsey]—having insinuated himself into the good graces of the stern and wary old man, Henry VII., and those of the gay and licentious youth, Henry VIII.—was rapidly advancing to greatness. Wolsey, while almoner, and holding subordinate offices about the [royal] 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— -76- "Lofty and sour to them that lov'd him not: But to those men that sought him, sweet as summer." Fitzjames was devotedly of this second class, and was even suspected to assist his patron in pursuits which drew upon him Queen Catharine's censure:— "Of his own body he was ill, and gave The clergy ill example." For these or other services, the cardinal, not long after he wrested the great seal from Archbishop Wareham, and had all legal patronage conferred upon him, boldly made Fitzjames attorney general, notwithstanding loud complaints from competitors of his inexperience and incapacity. The only state trial which he had to conduct was that of the unfortunate Stafford, Duke of Buckingham, who, having quarrelled with Wolsey, and called him a "butcher's cur," was prosecuted for high treason before the lord high chancellor and Court of Peers, on very frivolous grounds. Fitzjames had little difficulty in procuring a conviction; and although the manner in which he pressed the case seems shocking to us, he probably was not considered to have exceeded the line of his duty: and Shakspeare makes Buckingham, returning from Westminster Hall to the Tower, exclaim— "I had my trial, And, must needs say, a noble one; which makes me A little happier than my wretched father." The result was, at all events, highly satisfactory to Wolsey, who, in the beginning of the following year, created Fitzjames a puisne judge of the Court of King's Bench, with a promise of being raised to be chief justice as soon as there should be a vacancy. Sir John Fineux, turned of eighty, was expected -77- to drop every term, but held on four years longer. As soon as he expired, Fitzjames was appointed his successor. Wolsey still zealously supported him, although thereby incurring considerable obloquy. It was generally thought that the new chief was not only wanting in gravity of moral character, but that he had not sufficient professional knowledge for such a situation. His highest quality was discretion, which generally enabled him to conceal his ignorance, and to disarm opposition. Fortunately for him, the question which then agitated the country respecting the validity of the king's marriage with Catharine of Aragon, was considered to depend entirely on the canon law, and he was not called upon to give any opinion upon it. He [Fitzjames] 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 [Henry VIII.] vengeful feelings. The cardinal [Wolsey] having been not only deprived of the great seal, but banished to Esher, and robbed of almost the whole of his property under process of prœmunire, while an impeachment for treason was still threatened against him, the chief justice [Fitzjames] concluded that his utter destruction was resolved upon, and that no one could show him any sympathy without sharing his fate. Therefore, instead of going privately to visit him, as some old friends did, he joined in the cry against him, and assisted his enemies to the utmost. Wolsey readily surrendered all his private property, but wished, for the benefit of his successors, to save the palace at Whitehall, which belonged to the see of York, being the gift of a former archbishop. A reference was then made to the judges, "whether it was not forfeited to the crown;" when the chief justice [Fitzjames] suggested the fraudulent expedient of a fictitious -78- recovery in the Court of Common Pleas, whereby it should be adjudged to the king under a superior title. He [Fitzjames] 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 [Wolsey] in the king's name. "Master Shelley," said the cardinal, "ye shall make report to his highness that I am his obedient subject, and faithful chaplain and bondsman, whose royal commandment and request I will in no wise disobey, but most gladly fulfill and accomplish his princely will and pleasure in all things, and in especial in this matter, inasmuch as the fathers of the law [judges] all say that I may lawfully do it. "Therefore I charge your conscience, and discharge mine. "Howbeit, I pray you show his majesty from me that I most humbly desire his highness to call to his most gracious remembrance that there is both heaven and hell." This answer was, no doubt, reported by Shelley to his brethren assembled in the Exchequer Chamber, although, probably, not to the king; but it excited no remorse in the breast of Chief Justice FitzJames, who perfected the machinery by which the town residence of the Archbishops of York henceforth was annexed to the crown, and declared his readiness to concur in any proceedings by which the proud ecclesiastic, who had ventured to sneer at the reverend sages of the law [judges], might be brought to condign punishment. Accordingly, when Parliament met, and a select committee of the House of Lords was appointed to draw up articles of impeachment against Wolsey, Chief Justice Fitzjames, although only summoned, like the other judges, as an assessor, was actually made a member of the committee, joined in their deliberations, and signed their report. -79- (pp 80-81) he never should be drawn into question for it afterwards." The prisoner [Bishop Fisher of Rochester] contending that he was not guilty of the capital crime [of treason as] charged for words so spoken, the matter was referred to the judges. Lord Chief Justice Fitzjames, in their names, declared that this message or promise from the king to the prisoner neither did nor could, by rigor of law, discharge him; but in so declaring of his mind and conscience against the supremacy—yea, though it were at the king's own request or commandment—he committed treason by the statute, and nothing can discharge him from death but the king's pardon.'" Bishop of Rochester.—"Yet I pray you, my lords, consider that by all equity, justice, worldly honesty, and courteous dealing, I cannot, as the case standeth, be directly charged therewith as with treason, though I had spoken the words indeed, the same not being spoken maliciously, but in the way of advice or counsel, when it was required of me by the king himself; "and that favor [word definition concept] the very words of the statute do give me, [treason] being made only [defined narrowly] against such as shall 'maliciously gainsay [deny] the king's supremacy,' and none other; wherefore, although by rigor of law you may take occasion thus to condemn me, yet I hope you cannot find law, except you add rigor to that law, to cast me down, which herein I have not deserved." Fitzjames, C. J.—"All my brethren [fellow judges] 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 [his claim to be Head of the Church] 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 -82- exposition, and (as I take it) contrary to the meaning of them that made the law, as well as of ordinary persons who read it. "But then, my lords, what says your wisdom to this question, 'Whether a single testimony may be admitted to prove me guilty of treason; and may it not be answered by my negative?' "Often have I heard it said, that to overcome the presumption from the oath of allegiance to the king's majesty, and to guard against the dire consequences of the penalties for treason falling on the head of an innocent man, none shall be convicted thereof save on the evidence of two witnesses at the least." Fitzjames, C. J.—"This being the king's case, it rests much in the conscience and discretion of the jury; and as they upon the evidence shall find it, yon are either to be acquitted or else to be condemned." The report says that "the bishop answered with many more words, both wisely and profoundly uttered, and that with a mervailous, couragious, and rare constancy, insomuch as many of his hearers—yea, some of the judges—lamented so grievously, that their inward sorrow was expressed by the outward teares in their eyes, to perceive such a famous and reverend man in danger to be condemned to a cruell death upon so weak evidence, given by such an accuser, contrary to all faith, and the promise of the king [Henry VIII.] himself." A packed jury, being left to their conscience and discretion, found a verdict of guilty; and Henry was able to make good his saying, when he was told that the pope intended to send Bishop Fisher a cardinal's hat— "Fore God, then, he, shall wear it on his shoulders, for I [by fraud] will have [him convicted and beheaded] his head off." ["Trial" of St. Sir Thomas More, 1534] The conduct of the chief justice at the trial of Sir Thomas More was not less atrocious. After the case for the crown [prosecution] had been closed, the prisoner [More], in an able address to the jury, -83- clearly proved that there was no evidence whatever to support the charge, and that he was entitled to an acquittal, when Rich, the solicitor general, was permitted to present himself in the witness box, and to swear falsely [commit perjury], 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 [Saint] Thomas [More (1478-1535)] replied, "No more can the Parliament make the king supreme head of the church.'" A verdict of guilty was pronounced against the prisoner [St. Thomas More], notwithstanding his solemn denial of ever having spoken these words. He [More] then moved, in arrest of judgment, that the indictment was insufficient, as it did not properly follow the words of the statute which made it high treason to deny the king's supremacy, even supposing that Parliament had power to pass such a statute. The lord chancellor, whose duty it was, as head of the commission, to pass the sentence— "not willing," says the report, "to take the whole load of his [More's] condemnation [death] on himself, asked in open court the advice of Sir John Fitzjames, the lord chief justice of England, whether the indictment was valid or no." Fitzjames, C. J.—"My lords all, by St. Gillian, (for that was always his oath,) I must needs confess that if the act of Parliament be not unlawful, then the indictment is not, in my conscience, invalid." Lord Chancellor.—"Quid adhuc desideramus, testimonium? Reus est mortis, (What more do we need? He [More] is worthy of death.) "Sir Thomas More, you being, by the opinion of that reverend judge, the chief justice of England, and of all ____________ * This would hardly be allowed by some of our American juridical deniers and deriders of the "higher law." [Acts 5:29.] It is hard to distinguish a law (such as the fugitive slave act) which sets the moral sentiment at defiance, from a law that God shall not be God.—Ed. -84- his brethren, duly convicted of high treason, this court doth adjudge that you be carried back to the Tower of London, and that you be thence drawn on a hurdle [execution vehicle] to Tyburn, where you are to be banged till you are half dead, and then being cut down alive and [dis]embowelled, and your bowels burnt before your face, you are to be beheaded and quartered, your four quarters being set up over the four gates of the city, and your head upon London Bridge." No one can deny that Lord Chief Justice Fitzjames was an accessory to this atrocious murder. ["Trial" of Queen Anne Boleyn, 1536 (Second Wife of Henry VIII)] The next occasion of his [Fitzjames'] attracting the notice of the public was when he presided at the trials of Smeaton and the other supposed gallants of [Queen] Anne Boleyn [1507-1536]. Luckily for him, no particulars of these trials have come down to us, and we remain ignorant of the arts by which a conviction was obtained, and even a confession—although there is every reason to believe that the parties were innocent. Ed. Note: Due to "the obvious falsity of so much of the evidence; it announced too loudly and too clearly that the King [Henry VIII] and his [accomplices] were determined upon her [Anne's] death, and so sure of obtaining a verdict of guilty [by the 'jurors,' hand-picked members of the nobility] that they could afford to dispense with logic, reason, likelihood," says Norah Loft, The Concubine (New York: Doubleday & Co, Inc, 1963), p 271. Hearsay by a woman "dead for some years" was used, and dates of two events when in fact, medically Anne was too sick to have been about committing adultery!, pp 271 and 276. "And if the evidence could be so obviously contrived [spurious] in three places [known to the public at large], how much of the rest could you believe?," p 276. Thomas Cromwell, a sycophant and prime procurer of the perjury, took bribes, pp 258 and 262. "It paid him to please the king," p 261. Henry VIII wanted to replace Anne Boleyn with a younger woman, Jane Seymour! Before any case even existed, or any "evidence" for it, Henry VIII had expressed desire for his unwanted wife to get the death penalty, pp 238-239. Henry VIII told his staff including Cromwell, Audley, and Norfolk, to invent something as a pretext, p 240. The staff's "answer formed itself out of thin air. Adultery! . . . 'It means naming a man. What man?'" Norfolk said such a spurious charge would lack credibility. He was told, "That need be no stumbling-block. A simple matter of accusing some man and then extracting a confession. Someone of small importance . . . Less fuss,'" p 240. That was a Mark Smeaton, a musician, who, though known to be innocent, was tortured until he 'confessed,' and to save himself, named four additional men! Ultimately five (!) men were accused! with spurious dates of adultery incidents invented! pp 242-250, 255, 276, including with Anne's own brother George! Anne had felt likewise, "The charge is false and nobody not poisoned with hatred [to aid Henry to marry the younger woman] would believe it for a minute," p 257. Henry VIII also wanted a statement that Anne had never been his wife! Even his staff sycophant Cromwell saw through that, "If she were never your wife, she cannot be an adulteress . . ., " p 260. Cromwell knew the case was spurious, "there were contradictions and discrepancies that it sickened him to think of," p 259. But his overriding lack of moral fiber won out! As "evidence" was non-existent, perjurious, and spurious, Henry VIII and Cromwell considered alternatives: "all that [is] open . . . is to have her poisoned, or pushed downstairs," but Henry VIII deemed those murder methods "Difficult to achieve and open to suspicion," p 251. The Lord Mayor of London attended the "trial" and said, "I could not observe anything in the [spurious] proceedings against her, but [except] that they were resolved [in advance] to make an occasion [excuse] to get rid of her," p 274. "Either there was evidence for these things [the adultery, incest, conspiracy, and treason(!) charges], or there was none. If there was evidence, it must have been close, elaborate, and minute: if there were none, these [several] judges, these [several] juries and noblemen were the accomplices of the King in a murder [actually, six murders counting the five men] perhaps the most revolting that was ever committed," quoting Froude: 'Henry VIII'," p 268. According to the rules of evidence which then prevailed, the convictions and confessions of the gallants [the falsely accused men] were to be given in evidence to establish the guilt of the unhappy queen, for whose death Henry [1491-1509-1547] was now as impatient as he had once been to make her his wife. Ed. Note: However, they refused to confess, so Anne's "trial" lacked such evidence. See Norah Loft, supra, pp 256-257 and 275. Even had such confession evidence existed from prior cases, using same without the right of confrontation / cross-examination is unconstitutional as a denial of due process. See precedents including but not limited to: U.S. v Charles, 561 F Supp 694 (D SD Tex, 1982) (ruling that constitutional rights are prejudiced without opportunity to cross-examine) People v Lawson, 124 Mich App 371; 335 NW 2d 43 (1983) (citing the three elements in confrontation, cross-examination, oath, demeanor [demeanor is clearly lacking when the alleged witness against a person is dead]) Kirby v U.S., 174 US 47, 55; 19 S Ct 574; 43 L Ed 890 (1899) ("a fact . . . cannot be proved . . . except by witnesses who confront him at the trial, upon whom he can look while being tried . . . .") Mattox v U.S., 156 US 237, 242-243; 15 S Ct 337; 39 L Ed 409 (1895) (“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he   243gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law, in its wisdom, declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused" [in the case of someone previously convicted of the same offense].) When the lord high steward and the peers assembled for her trial, Fitzjames and the other judges attended, merely as assessors, to advise on any point of law which might arise. I do not find that they were consulted till the verdict of guilty had been recorded, and sentence was to be pronounced. Burning was the death which the law appointed for a woman attainted of treason; yet as Anne had been Queen of England, some peers suggested that it might be left to the king to determine whether she should die such a cruel and ignominious death, or be beheaded, a punishment supposed to be -85- attended with less pain and less disgrace. But then a difficulty arose whether, although the king might remit all the atrocities of the sentence on a man for treason, except beheading, which is part of it, he could order a person to be beheaded who was sentenced to be burnt. A solution was proposed, that she should be sentenced by the lord high steward to be "burnt or beheaded at the king's pleasure;" and the opinion of the judges was asked, "whether such a sentence could be lawfully pronounced." Fitzjames, C. J.—"My lords, neither myself nor any of my learned brothers have ever known or found in the records, or read in the books, or known or heard of, a sentence of death in the alternative or disjunctive, and incline to think that it would be bad for uncertainty. The law delights in certainty. "Where a choice is given, by what means is the choice to be exercised? And if the sheriff receives no special directions, what is he to do? "Is sentence to be stayed till special directions are given by the king? and if no special directions are given, is the prisoner, being attainted, to escape all punishment? "Prudent antiquity advises you stare super antiquas vias; and that which is without precedent is without safety." After due deliberation, it was held that an absolute sentence of beheading would be lawful, and it was pronounced accordingly; the court being greatly comforted by recollecting that no writ of error lay, and that their judgment could not be reversed. Fitzjames died in the year 1539, before this judgment served as a precedent for that upon the unfortunate Queen Catharine Howard; and he was much missed when the bloody statute of the Six Articles brought so many, both of the old and of the reformed faith, on capital charges, before the Court of King's Bench. -86- CHAPTER V. THOMAS FLEMING. [___-1613] THE greatest pnrt of my readers never before read or heard of the name of Thomas Fleming; yet, starting in the profession of the law with Francis Bacon [1561-1626], he was not only preferred to him by attorneys, but by prime ministers, and he had the highest professional honors showered upon him, while the immortal philosopher, orator, and fine writer continued to languish at the bar without any advanccment, notwithstanding all his merits and all his intrigues. But Fleming had superior good fortune, and enjoyed temporary consequences, because he was a mere lawyer—because he harbored no idea or aspirations beyond the routine of Westminster Hall—because he did not mortify the vanity of the witty, or alarm the jealousy of the ambitious. He was the younger son of a gentleman of small estate in the Ilse of Wright. I do not find any account of his early education, and very little interest can now be felt respecting it; although we catch so eagerly at any trait of the boyhood of his rival, whom he despised. Soon after he was called to the bar, by unwearied drudgery he got into considerable practice; and it was remarked that he always tried how much labor he could bestow upon every case intrusted to him, while his more lively competitors tried with how little labor they could creditably perform their duty. In the end of the year 1594, he was called to the degree of serjeant, along with eight others, and was thought to be the -87- most deeply versed in the law of real actions of the whole batch. It happened that, soon after, there was a vacancy in the office of solicitor general, on the promotion of Sir Edward Coke to be attorney general. Bacon moved heaven and earth that he himself might succeed to it. He wrote to his uncle, Lord Treasurer Burleigh, saying, "I hope you will think I am no unlikely piece of wood to shape you a true servant of." He wrote to the Queen Elizabeth, saying, "I affect myself to a place of my profession, such as I do see divers younger in proceeding to myself, and men of no great note, do without blame aspire unto; but if your majesty like others better, I shall, with the Lacedemonian, be glad that there is such choice of abler men than myself." He accompanied this letter with a valuable jewel, to show off her beauty. He did what he thought would be still more serviceable, and, indeed, conclusive; he prevailed upon the young Earl of Essex, then in the highest favor with the aged queen, earnestly to press his suit. But the appointment was Ieft with the lord treasurer, and he decided immediately against his nephew, who was reported to be no lawyer, from giving up his time to profane learning—who had lately made an indiscreet, although very eloquent, speech in the House of Commons—and who, if promoted, might be a dangerous rival to his cousin, Robert Cecil, then entering public life, and destined by his sire to be prime minister. The cunning old fox then inquired who would be a competent person to do the queen's business in her courts, and would give no uneasiness eisewhere; and he was told by several black-letter judges whom he consulted that "Serjeant Fleming was the man for him." After the office had been kept vacant by these intrigues above a year, Serjeant Fleming was actually appointed. Bacon's anguish was exasperated by -88- comparing himself with the new solicitor; and in writing to Essex, after enumerating his own pretensions, he says, "When I add hereunto the obscureness and many exceptions to my competitor, I cannot but conclude with myself that no man ever had a more exquisite disgrace." He resolved at first to shut himself up for the rest of his days in a cloister at Cambridge. A soothing message from the queen induced him to remain at the bar; but he had the mortification to see the man whom he utterly despised much higher in the law than himself, during the remainder of this and a considerable part of the succeeding reign [James I.]. Fleming, immediately upon his promotion, gave up his serjeantship, and practised in the Court of Queen's Bench. He was found very useful in doing the official business, and gave entire satisfaction to his employers. At the calling of a new Parliament, in the autumn of 1601, he was returned to the House of Commons for a Cornish borough; and, according to the usual practice at that time, he ought, as solicitor general, to have been elected speaker; but his manner was too "lawyer-like and ungenteel" for the chair, and Serjeant Croke, who was more presentable, was substituted for him. He opened his mouth in the house only once, and then he broke down. This was in the great debate on the grievance of monopolies. He undertook to defend the system of granting to individnals the exclusive right of dealing in particular commodities; but when he had described the manner in which patents passed through the different offices before the great seal is put to them, he lost his rccollection and resumed his seat. Bacon, now member for Middlesex, to show what a valuable -89- (pp 90-95) more vigorous intellect and deeper learning, added respect for constitutional liberty and resolution at every hazard to maintain judicial independence. From the growing resistance in the nation to the absolute maxims of government professed by the king and sanctioned by almost all his judges, there was a general desire that the only one who stood up for law against prerogative should be placed in a position which might give greater weîght to his efforts on the popular side; but of this there seemed no prospect, for the subservient Fleming was still a young man, and likely to continue many years the tool of the government. In the midst of these gloomy anticipations, on the 15th day of October, 1613 [middle of James I.'s reign], the joyful news was spread of his sudden death. I do not know, and I have taken no pains to ascertain, where he was buried, or whether he left any descendants. In private life he is said to have been virtuous and amiable,*   and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy serjeant at the bar of the Common Pleas, the position for which nature had intended him. ____________ * Some of our American judges who have of late [1850's] attained a very unenviable public character have alao the reputation of being virtuous aad amiable in private life.—Ed. -96- CHAPTER VI. NICHOLAS HYDE. [___-1631] AFTER the abrupt dissolution of the second Parliament of Charles I. without the grant of a supply [without voting for a tax law], all redress of grievances being refused, the plan was deliberatcly formed of discontinuing entirely the use of popular assemblies in England, and of ruling merely by prerogative [royal/government decree]. For this purpose it was indispensibly necessary that the king [Charles I.] should have the power of imposing taxes, and the power of arbitrary imprisonment. He [Charles I] began to exercise both these powers by assessing sums which all persons of substance were called upon to contribute to the revenue according to their supposed ability, and by issuing warrants for committing to jail those who resisted the demand. But these [unconstitutional] measures could not be rendered effectual without the aid of the judges; for hitherto in England the validity of any fiscal imposition might be contested in a court of justice; and any man deprived of his liberty might, by suing out a writ of habeas corpus, have a deliberate [reasoned] judgment upon the question "whether he was lawfully detained in custody or not." Ed. Note: This is the same right mandated by the U.S. Constitution, Art I § 9, and used to fight slavery. Edward Rogers, Unconstitutionality of Slavery (1855), pp 55-60 covers the issue of pro-monarchy people, pro-Charles I.' despotism, infilitrating the South. Sir Thomas Darnel, Sir Edmund Hampden, and other public-spirited men, having peremptorily refused to pay the sums assessed upon them, had been cast into prison, and were about to seek legal redress for their wrongs. In the coming legal contest, almost every thing would depend upon the chief justice of the King's Bench. According to a well-known fashion which prevailed in those times, the attor- -97- ney general, by order of the government, sounded [privately asked] Sir Randolph Crewe, then holding that office, to which he had been appointed hardly two years before, respecting his opinions on the agitated points, and was shocked to bear a positive declaration from him that by the law of England, no tax or talliage, under whatever name or disguise, can be laid upon the people without the authority of Parliament, and that the king cannot imprison any of his subjects without a warrant specifying the offence with which they are charged. This [belief] being reported to the cabinet, Sir Randolph Crewe was immediately dismissed from his office; and, in a few weeks after, Sir Nicholas Hyde was made chief justice in his stead. He was the uncle of the great Lord [Edward Hyde] Clarendon [1609-1674]. They were sprung from the ancient family of "Hyde of that ilk" in the county palatine of Chester; their branch of it having migrated, in the sixteenth century, into the west of England. The chief justice was the fourth son of Lawrence Hyde, of Gussage St. Michael, in the county of Dorset. Before being selected as a fit tool of an arbitrary government, be had held no office whatever; but he had gained the reputation of a sound lawyer, and he was a man of unexceptionable character in private life. He was known to be always a stanch stickler for prerogative [kingly/governmental power to do as he/it pleased unrestrained by law]; but this was supposed to arise rather from the sincere opinion he had formed of what the English constitution was, or ought to be, than from a desire to recommend himself for promotion. He is thus good naturedly introduced by [legal history writer] Rushworth:— "Sir Randolf Crewe, showing no zeal [willingness to suck up] for the advancement of the loan [the collection of the illegal tax], was removed from his place of lord chief justice, and Sir Nicholas Hyde succeeded in his room—a person who, for his parts and abilities, was thought worthy of that -98- preferment; yet, nevertheless, came to the same [Chief Justice position] with a prejudice [bias against him], coming in the place of one so well-beloved, and so suddenly removed." Whether he was actuated by mistaken principle or by profligate ambition, he fully justified the confidence reposed in him by his employers. [Darnel's Habeas Corpus Case, Detention Without Charges] Soon after he [Judge Nicholas Hyde] took his seat in the Court of King's Bench, Sir Thomas Darnel and several others, committed under the same circumstances, were brought up before him on a writ of habeas corpus; and the question arose whether the King of England, by lettre de cachet [fiat], had the power of perpetual imprisonment without assigning any cause. The return [respopnse] of the jailer, being read, was found to set out, as the only reason for Sir Thomas Darnel's detention, a warrant, signed by two privy councillors, in these words:— "Whereas, therefore, the body of Sir Thomas Darnel hath been committed to your custody, these are to require you still to detain him, and to let you know that he was and is committed BY THE SPECIAL COMMAND OF HIS MAJESTY [Charles I.]." Lord Chief Justice Hyde proceeded with great temper and seeming respect for the law, observing, "Whether the commitment be by the king or others, this court is a place where the king doth sit in person, and we have power to examine it; and if any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him; if otherwise, he is to be remanded by us to prison again." Selden, Noy,* and the other counsel for the prisoners, encouraged by this intimation, argued boldly that the warrant was bad on the face of it, per speciale mandatum domini regis being too general, without specifying an offence for ____________ * Noy at this time was of the popular party. He afterwards went over to the court [king's side], and was made attorney general.—Ed. -99- (pp 100-106) afterwards reversed, on a writ of error, by the House of Lords. But Lord Chief Justice Hyde escaped the fate of his predecessor, Chief Justice Tresilian, who was hanged [p 60] for promulgating similar doctrines, for he was carried off by disease when he had disgraced his office four years and nine months. He died at his house in Hampshire, on the 25th of August, 1631. In justice to the memory of Sir Nicholas Hyde, I ought to mention that he was much respected and lauded by true courtiers. Sir George Croke describes him as "a grave, religious, discreet man, and of great learning and piety." Oldmixon pronouncea him to have been "a very worthy magistrate," and highly applauds his judgment in favor of the power of the crown [King Charles I.] to imprison and prosecute Parliament men for what they have done in the House of Commons. -106- CHAPTER VI. JOHN BRAMPSTON. [c 1577-1654] ON the vacancy in the office of chief justice of the King's Bench, created by the death of Sir Thomas Richardson, A.D. 1635, the king [Charles I.and his ministers [cabinet] were exceedingly anxious to select a lawyer fitted to be his succcssor. Resolved to [unconstitutionally] raise taxes without the authority of Parliament, they had launched their grand scheme of ship money [an unconstitutional tax], and they knew that its validity would speedily be questioned. To lead the opinions of the judges, and to make a favorable impression on the public, they required a chief [justice] on whose servility they could rely, and who, at the same time, should have a great reputa­tion as a lawyer, and should be possessed of a tolerable character for honesty. Such a man was Mr. Serjeant Brampston. He was born at Maldon, in Essex, of a family founded there in the reign of Richard II. by a citizen of London, who had made a fortune in trade and had served the office of sheriff. When very young, he [John Brampston] was sent to the university of Cambridge; and there he gained high renown by his skill in disputation, which induced his father to breed him to the bar. Accordingly, he was transferred to the Middle Temple, and studied law there for seven years with unwearied assiduity. At the end of this period, he was called to the bar, having then amassed a store of law sufficient to qualify him at once to step upon the bench. Different public bodies str